Chavez et al v. Lumber Liquidators, Inc.

Filing 92

Order by Hon. Samuel Conti granting in part and denying in part 51 Motion to Certify Class.(sclc1, COURT STAFF) (Filed on 3/26/2012)

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IN THE UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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Northern District of California

United States District Court

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CRELENCIO CHAVEZ and JOSE
ZALDIVAR, on behalf of all others
similarly situated,

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Plaintiffs,
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v.
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LUMBER LIQUIDATORS, INC., and DOES )
1 through 20, inclusive,
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Defendants.
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I.

Case No. CV-09-4812 SC
ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFFS'
MOTION FOR CLASS
CERTIFICATION

INTRODUCTION

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Plaintiffs Crelencio Chavez ("Chavez") and Jose Zaldivar

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("Zaldivar") (collectively, "Plaintiffs") bring this action against

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Defendant Lumber Liquidators, Inc. ("LLI") for failure to pay

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overtime wages, failure to provide meal breaks, failure to pay

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vested vacation wages, and failure to reimburse work-related

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expenses.

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Certification.

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five classes, each of which includes past and present LLI employees

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who worked at LLI California stores from September 3, 2005 through

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the present ("the Class Period").

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briefed.

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all of the papers submitted by both parties, the Court concludes

Now before the Court is Plaintiffs' Motion for Class
ECF No. 51 ("Mot.").

Plaintiffs seek to certify

Plaintiffs' Motion is fully

ECF Nos. 66 ("Opp'n"), 76 ("Reply").

Having considered

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that the matter is appropriate for decision without oral argument.

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As detailed below, the motion is GRANTED in part and DENIED in

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part.

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II.

BACKGROUND

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LLI sells flooring products, including pre-finished and

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unfinished hardwood, laminate, glue, moldings, and cleaning kits.

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Morrison Decl.1 ¶ 2.

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six retail stores in late 2005 (the beginning of the Class Period)

LLI's presence in California has grown from

Each retail store has a Store

United States District Court

For the Northern District of California

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to twenty-four stores today.

Id.

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Manager and some combination of the following positions: Assistant

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Store Manager I, Assistant Store Manager II, Warehouse Associate,

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Delivery Driver, and/or Product Specialist.

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Managers are classified as "exempt" employees, meaning they are

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exempt from overtime pay requirements.

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classified as "non-exempt," meaning they are eligible for overtime

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pay.

Id. ¶ 3.

Store

Other employees are

Chavez worked as a Store Manager at LLI's retail store in

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Commerce, California from 2000 to April 2009.

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Decl.") ¶ 2.

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but Plaintiffs allege that he was misclassified since he spent more

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than 50 percent of his time performing non-exempt tasks.

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12 ("FAC") ¶ 8.

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his workday on such manual duties as "checking in new material and

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moving it into the warehouse off of trucks . . ., 'pulling' orders

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from the warehouse for customers, driving, checking material, [and]

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ECF No. 56 ("Chavez

Chavez was classified as exempt from overtime wages,

ECF No.

Chavez estimates that he spent over 85 percent of

Robert M. Morrison, LLI's Senior Vice President of Stores and
Operations, submitted a declaration in opposition to Plaintiffs'
Motion. ECF No. 68 ("Morrison Decl.").

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separating material and shipping material."

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Chavez also states that LLI never presented him with an itemization

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or breakdown of how his bonuses or commissions were calculated and,

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when he quit his job, LLI did not pay him for all of his accrued

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vacation time.

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that "we just didn't have time to have lunches," although it is

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unclear from his testimony how often he missed meal breaks.

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Garcia Decl.2 Ex. 1 ("Chavez Dep.") at 244.

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that he was never reimbursed by LLI for gas and personal

Id. ¶ 5.

Chavez Decl. ¶ 3.

During his deposition, Chavez testified

See

Further, Chavez states

United States District Court

For the Northern District of California

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expenditures incurred while making deposit deliveries and similar

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trips on behalf of LLI.

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Chavez conceded that, while he was employed with LLI, he was not

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aware that he could be reimbursed for mileage and, consequently,

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never submitted any type of request for reimbursement.

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at 189.

Chavez Decl. ¶ 6.

During his deposition,

Chavez Dep.

Zaldivar worked at LLI's retail store in City of Industry,

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California from July 2007 to June 2010 as a non-exempt hourly

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Assistant Manager.

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35, 41-42.

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addition to his hourly pay, but never got a breakdown of the

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commissions and did not understand how LLI calculated his

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commission or bonus.

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2010, LLI paid Zaldivar $12,282.87 as "sales bonuses."

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Decl. Ex. D ("Zaldivar Earnings Statement").

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LLI failed to include these bonuses into his regular rate of pay

Garcia Decl. Ex. C. ("Zaldivar Dep.") at 11-12,

Zaldivar testified that he earned a commission in

Id. at 162, 183-84.

From July 2007 to June
Garcia

Zaldivar claims that

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David A. Garcia ("Garcia"), Plaintiffs' attorney, filed a
declaration in support of Plaintiffs' Motion. ECF No. 88 ("Garcia
Decl.").

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when calculating his overtime rate.3

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Decl.").

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given a full, thirty-minute lunch break.

ECF No. 54 ("Zaldivar

Zaldivar also testified that he rarely, if ever, was
Zaldivar Dep. at 100-06.

On September 8, 2009, Plaintiffs filed this putative class

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LLI removed under 28 U.S.C. § 1441(b), and Plaintiffs subsequently

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filed a First Amended Complaint ("FAC") in federal court.

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causes of action are asserted in the FAC: (1) & (2) failure to pay

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overtime wages in violation of California Labor Code ("Labor Code")

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United States District Court

action in California state court.

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For the Northern District of California

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ECF No. 1 ("Not. of Removal").

§ 1194 and 29 U.S.C. § 207; (3) failure to pay meal period wages in

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violation of Labor Code § 226.7; (4) failure to pay vested vacation

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wages in violation of Labor Code § 227.3 et seq.; (5) failure to

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reimburse work-related expenses in violation of Labor Code § 2802;

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(6) failure to keep accurate payroll records in violation of Labor

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Code § 226; and (7) violation of California Business and

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Professions Code § 17200 et seq. (the "Unfair Competition Law" or

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"UCL").

Seven

Plaintiffs now seek to certify five classes, each of which is

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limited to persons who were employed at LLI's California retail

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stores during the Class Period, September 3, 2005 through the

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present: (1) the "Misclassif[ied] Unpaid Overtime Class,"

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represented by Chavez; (2) the "Unpaid Overtime Class," represented

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by Zaldivar; (3) the "Missed Meal Break Class," represented by

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Chavez and Zaldivar; (4) the "Unpaid Vacation Class" represented by

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Chavez; and (5) and the "Unpaid Reimbursement Class," represented

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by Chavez and Zaldivar.

Mot. at 1.

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It is unclear from the earnings statement provided by Plaintiffs
whether or not this is actually the case.

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III. LEGAL STANDARD
"The class action is an exception to the usual rule that

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litigation is conducted by and on behalf of the individual named

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parties only."

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2550 (2011) (internal quotations and citations omitted).

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to justify a departure from that rule, a class representative must

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be part of the class and possess the same interest and suffer the

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same injury as the class members."

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citations omitted).

United States District Court

For the Northern District of California

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Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541,
"In order

Id. (internal quotations and

Under Rule 23(a), four prerequisites must be satisfied for
class certification:
(1) the class is so numerous that joinder of all members
is impracticable;
(2) there are questions of law or fact common to the
class;

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(3) the claims or defenses of the representative parties
are typical of the claims or defenses of the class; and

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(4) the representative parties will fairly and adequately
protect the interests of the class.

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Fed. R. Civ. P. 23(a).
A plaintiff also must satisfy one or more of the separate

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prerequisites set forth in Rule 23(b): (1) there is a risk of

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substantial prejudice from separate actions; (2) declaratory or

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injunctive relief benefiting the class as a whole would be

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appropriate; or (3) common questions of law or fact predominate and

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the class action is superior to other available methods of

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adjudication.

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Fed. R. Civ. P. 23(b).

"Rule 23 does not set forth a mere pleading standard.

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A party

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seeking class certification must affirmatively demonstrate his

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compliance with the Rule -- that is, he must be prepared to prove

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that there are in fact sufficiently numerous parties, common

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questions of law or fact, etc."

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(emphasis deleted).

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considerations that are enmeshed in the factual and legal issues

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comprising the plaintiff's cause of action."

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quotations and citations omitted).

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about that consequence: The necessity of touching aspects of the

Dukes, 131 S. Ct. at 2551

Analysis of these factors "generally involves

Id. at 2552 (internal

"Nor is there anything unusual

United States District Court

For the Northern District of California

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merits in order to resolve preliminary matters, e.g., jurisdiction

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and venue, is a familiar feature of litigation."

Id.

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IV.

DISCUSSION

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A.

Preliminary Matters

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In support of their briefs, both Plaintiffs and LLI submitted

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a number of declarations from current and former employees.

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Nos. 53-57, 59-62 ("Pls.' Emp. Decls."); 67 ("LLI Emp. Decls.").

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Plaintiffs have also submitted declarations by Chavez and Zaldivar.

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Plaintiffs' employee declarants state that Store Managers worked

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overtime and performed non-exempt tasks, that employees often

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worked through meal breaks, and that LLI failed to reimburse

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employees for work-related expenses and unused vacation time.

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contrast, LLI's employee declarants state that Store Managers

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primarily performed non-exempt tasks and that LLI complied with the

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law with respect to meal breaks, expense reimbursement, and

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vacation time.

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ECF

These employee declarations have triggered a number of
objections on both sides.

LLI submitted forty-seven pages of

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In

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objections to Plaintiffs' employee declarations and additional

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objections to evidence submitted by Plaintiffs in support of their

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reply brief.

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The Court notes that most of LLI's objections lack merit.

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example, LLI frequently objects that an employee declarant's

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statement concerning his or her own job responsibilities "lacks

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foundation."

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been better presented as affirmative (and succinct) arguments in

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LLI's opposition brief.

ECF No. 72 ("LLI Objs."); 86 ("LLI Reply Objs.").
For

These repetitive and lengthy objections might have

In any event, the Court need not and does

United States District Court

For the Northern District of California

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not address each individual objection because they were filed in

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violation of the page limits set forth in the Civil Local Rules.

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Moreover, to the very limited extent that the evidence targeted by

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LLI is in fact objectionable, the Court does not rely on it.

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Plaintiffs have objected to LLI's employee declarants on the

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grounds that they started working for LLI sometime after 2009 and,

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therefore, are somehow irrelevant to class certification.

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78 ("Pls.' Objs.").

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Plaintiffs' proposed classes include employees who worked for LLI

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from 2005 through the present.

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changed its policies to comply with the law sometime after 2009,

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then Plaintiffs should not have extended the class period "through

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the present."

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ECF No.

This argument lacks merit since all of

If, as Plaintiffs suggest, LLI

The parties also dispute the veracity of various declarations

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filed by Carlos Alva, a LLI Store Manager who happens to be

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Chavez's brother-in-law.

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support of LLI's opposition to class certification, but later

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recanted, claiming that he was intimidated into signing this first

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declaration.

Alva initially filed a declaration in

ECF No. 67-1 ("Alva 1st Decl."); ECF No. 73 ("Alva

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2nd Decl.").

Plaintiffs filed a second and then a third

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declaration by Alva in support of their Motion, both of which

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differ significantly from Alva's first declaration.

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Decl.; ECF No. 74 ("Alva 3rd Decl.").

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Alva's deposition, a transcript of which has been filed with the

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Court.4

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by the attorney who allegedly intimidated Alva, which paints a

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vastly different picture of the events surrounding Alva's first

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declaration.

ECF No. 90-1 ("Alva Dep.").

ECF No. 89.

See Alva 2nd

On March 14, 2012, LLI took

LLI also filed a declaration

Having reviewed all of these

United States District Court

For the Northern District of California

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declarations, as well as Alva's deposition testimony, it is

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altogether unclear whether any wrongdoing actually took place.

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light of the other dispositive evidence submitted by the parties,

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as well as the inconsistencies in Alva's various accounts, the

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Court need not and does not rely on any of the statements made by

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Alva to resolve this motion for class certification.

In

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B.

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Plaintiffs define the Misclassified Unpaid Overtime Class as:

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"All of [LLI's] past and present California employees who formerly

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worked or are currently working for [LLI] in the position of 'Store

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Manager' from September 3, 2005 through the present."

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Plaintiffs estimate that at least forty-three LLI employees may

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fall within this class.

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LLI's uniform policy of classifying Store Managers as exempt from

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overtime wages violates Labor Code § 1194 since Store Managers

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often worked more than forty hours per week and spent more than 50

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percent of their time performing non-exempt tasks.

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The Misclassified Unpaid Overtime Class

Id. at 12.

Mot. at 1.

Plaintiffs' theory is that

FAC ¶ 32.

Curiously, Alva stated during his deposition that he only signed
one declaration in support of Plaintiffs' Motion, not two. See
Alva Dep. at 255.

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LLI argues that the Court should not certify the proposed

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Misclassified Unpaid Overtime Class since it does not present

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common questions of law or fact under Rule 23(a) and because

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Plaintiffs have failed to demonstrate that common questions

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predominate over individualized questions under Rule 23(b)(3).

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Opp'n at 16-17.

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The Court agrees with LLI.

As the Supreme Court explained in Dukes: "Commonality requires

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the plaintiff to demonstrate the class members have suffered the

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same injury."

Dukes, 131 S. Ct. at 2551 (internal citations and

United States District Court

For the Northern District of California

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quotations omitted).

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common contention . . . .

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be of such a nature that it is capable of classwide resolution --

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which means that determination of its truth or falsity will resolve

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an issue that is central to the validity of each one of the claims

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in one stroke."

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matters to class certification . . . is not the raising of common

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questions -- even in droves -- but, rather the capacity of a

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classwide proceeding to generate common answers apt to drive the

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resolution of the litigation.

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class are what have the potential to impede the generation of

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common answers."

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omitted).

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That is, "[t]heir claims must depend upon a
That common contention, moreover, must

Id. at 2545.

The Supreme Court noted: "What

Dissimilarities within the proposed

Id. at 2551 (internal quotations and citations

Here, Plaintiffs assert that LLI's uniform policy of

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classifying Store Managers as exempt presents a common question.

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Mot. at 12-13.

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questions are common to the class: "Plaintiff's job requirements,

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Defendant's realistic expectations regarding Store Managers' job

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requirements, whether Defendant had a policy and practice of having

Plaintiffs also contend that the following

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Store Managers work without overtime pay, which of the tasks

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performed by Plaintiff are 'managerial' . . . , whether Plaintiff

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is exempt from overtime as a 'Manager' . . . ."

Id. at 14.

Several courts, including this one, have denied class

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certification in the face of similar "common questions."

In In re

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Wells Fargo Home Mortgage, 571 F.3d 953 (9th Cir. 2009), the Ninth

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Circuit reversed a district court's order certifying a class of

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employees who were subject to Wells Fargo's blanket application of

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overtime exemption status.

The Ninth Circuit found that Wells

United States District Court

For the Northern District of California

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Fargo's overtime exemption policy "d[id] nothing to facilitate

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common proof on the otherwise individualized issues" since "courts

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must still ask where the individual employees actually spent their

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time."

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decided In re Wells Fargo, the Ninth Circuit again addressed class

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allegations concerning overtime exemption status in Vinole v.

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Countrywide Home Loans, Inc., 571 F.3d 935 (9th Cir. 2009).

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Vinole, the Ninth Circuit upheld a district court's denial of class

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certification, finding that "Plaintiffs' claims require a fact-

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intensive, individual analysis of each employee's exempt status."

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571 F.3d at 947.

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court's reasoning that "in cases where exempt status depends upon

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an individualized determination of an employee's work, and where

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plaintiffs allege no standard policy governing how employees spend

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their time, common issues of law and fact may not predominate."5

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In re Wells Fargo, 57 F.3d at 959.

Shortly after it

In

The Ninth Circuit also affirmed the district

See also Marlo v. United Parcel Serv., Inc., 639 F.3d 942 (9th
Cir. 2011) (employer's expectation that employees follow certain
procedures "does not establish whether they are 'primarily' engaged
in exempt activities during the course of the workweek"); Cruz v.
Dollar Tree Stores, Inc., No. 07-2050 SC, 2011 WL 2682967, at *6-9
(N.D. Cal. July 8, 2011) (representative employee testimony,
evidence of centralized operational and human resources hierarchy,

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Id. at 946-47.
The Court finds that none of the "common questions" offered up

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by Plaintiffs are capable of class-wide resolution.

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class-wide policy identified by Plaintiffs -- the classification of

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Store Managers as exempt -- is insufficient to raise a common

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question.

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have offered no common proof that Store Managers' job requirements

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are consistent from day to day or from store to store, the Court

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would need to engage in an individualized, fact-intensive analysis

United States District Court

For the Northern District of California

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See In re Wells Fargo, 571 F.3d at 959.

The only

As Plaintiffs

to determine how each Store Manager spends his or her time.
In their reply brief, Plaintiffs raise a number of additional

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"common questions."

These new arguments do nothing to change the

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Court's analysis.

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detailed schematics which dictate "where products are placed on the

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shelf, how many items are placed there, and how much space the

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product takes up," may serve as common proof.

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However, there is no indication that these planograms have anything

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to do with Store Managers' job responsibilities.

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argue that "whether more than 50% of the employees' [sic] time is

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spent on nonexempt tasks may be subject to common resolution based

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on the testimony of LLI regional managers, volume of sales per

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store, LLI's employment records of staffing stores."

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argument is also unavailing.

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individualized proof, not common evidence.

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retail stores in California.

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Managers' responsibilities at each individual location without

First, Plaintiffs argue that LLI's "planograms,"

Reply at 6.

Next, Plaintiffs

Id.

This

Plaintiffs appear to be pointing to
LLI has twenty-four

The Court cannot analyze Store

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and uniform training did not provide sufficient common proof to
support class certification).

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conducting mini-trials.
For these reasons, the Court declines to certify Plaintiffs'

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proposed Misclassified Unpaid Overtime Class.

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C.

Unpaid Overtime Class

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Plaintiffs define the Unpaid Overtime Class as:

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[A]ll past and current retail store employees of [LLI]
classified by [LLI] as non-exempt employees (including,
but not limited to, assistant store managers, sales
associates, and warehouse associates), and employed in
California from September 3, 2005 through the present,
who were paid overtime wages and were also paid
commission wages and/or other non-discretionary pay or
bonuses.

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United States District Court

For the Northern District of California

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Mot. at 1.

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non-discretionary pay or bonuses when calculating class members'

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overtime.

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employees are entitled to "no less than one and one-half times the

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regular rate of pay for an employee" for any work in excess of

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eight hours in one workday or forty hours in any one workweek.

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Cal. Lab. Code § 510(a).

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pay and bonuses were not factored into their "regular rate of pay"

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for the purposes of overtime calculations.6

See id. at 15.

Under California law, non-exempt

Plaintiffs contend that non-discretionary

Mot. at 15.

The Court finds that the Unpaid Overtime Class meets all of

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Plaintiffs' theory is that LLI failed to account for

the requirements set forth by Rule 23.

As an initial matter, Rule

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6

Plaintiffs' initial definition of the Unpaid Overtime Class is
limited to "non-exempt employees." Mot. at 1. However,
Plaintiffs' moving papers suggest that the class also includes
Store Managers. See id. at 2 ("Plaintiffs' claims are typical of
up to 43 'Store Managers'"). It would make little sense to include
Store Managers in the Unpaid Overtime Class since Store Managers
were classified as exempt from overtime wages and their claims
could not possibly be predicated on a miscalculation of their
regular pay. Accordingly, the Court excludes Store Managers from
the Unpaid Overtime Class.

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1

23(a)'s numerosity requirement is satisfied since the Unpaid

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Overtime Class is comprised of at least 130 current and former

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nonexempt LLI employees.
Rule 23(a)'s commonality requirement is satisfied because

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5

Plaintiffs' claim is capable of class-wide resolution and is

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subject to common proof since Plaintiffs have identified a uniform

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policy or practice.

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prior to May 2010, it was LLI's nationwide practice to pay time-

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and-a-half at an employee's regular hourly rate, without regard to

LLI's Rule 30(b)(6) deponent indicated that,

United States District Court

For the Northern District of California

10

bonuses that an employee may have earned during the relevant pay

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period.

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Court need not rely on individualized proof to assess the merits of

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Plaintiffs' unpaid overtime claim.

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Court finds that, under Rule 23(b)(3), questions of law and fact

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common to the class members predominate over questions affecting

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only individual members.

Garcia Decl. Ex. A ("Morrison Dep.").7

Accordingly, the

For these same reasons, the

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Zaldivar's claims are typical of the 130 non-exempt employees'

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claims because all were subject to the common pay practices of LLI.

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Zaldivar has stated that he regularly worked more than forty hours

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per week and that he received $12,282.87 in sales bonuses that were

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not incorporated in his regular rate of pay for the purposes of

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calculating his overtime rate.

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that Zaldivar has failed to prove that his overtime was ever

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calculated incorrectly.

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has failed to produce adequately detailed records and LLI's

Zaldivar Decl. ¶¶ 4-5.

Opp'n at 25.

LLI objects

Plaintiffs respond that LLI

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27
28

7

LLI designated Morrison to testify on its behalf under Federal
Rule of Civil Procedure 30(b)(6). Morrison's depositions were
taken on November 11, 2010 and December 16, 2011. Garcia Decl. ¶
6.

13

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argument is not relevant to whether class certification is

2

appropriate.

3

presented by Plaintiffs is sufficient for the purposes of class

4

certification.

5

shown that LLI had a uniform practice for calculating overtime pay,

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that LLI's uniform practice did not account for bonuses and other

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non-discretionary pay, and that Zaldivar received $12,282.87 in

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bonuses and claims to have worked more than forty hours per week on

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several occasions.

Reply at 10.

The Court concludes that the evidence

At this stage, it is enough that Plaintiffs have

"In determining the propriety of a class

United States District Court

For the Northern District of California

10

action, the question is not whether the plaintiff[s] . . . have

11

stated a cause of action or will prevail on the merits, but rather

12

whether the requirements of Rule 23 are met[.]"

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Paper & Forestry, Rubber, Mfg. Energy, Allied Indus. & Serv.

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Workers Int'l Union v. ConocoPhillips Co., 593 F.3d 802, 808 (9th

15

Cir. 2010) (quoting Eisen v. Carlisle & Jacquelin, 417 U.S. 156,

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177-78 (1974)).

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United Steel,

As to adequacy, for the time being, the Court is satisfied

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that Plaintiffs and their attorneys will fairly and adequately

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protect the interests of the class.

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Zaldivar has interests antagonistic to the rest of class or that he

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will be unable to prosecute this action vigorously through

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qualified counsel.

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582 F.2d 507, 512 (9th Cir. 1978).

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25

There is no indication that

See Lerwill v. Inflight Motion Pictures, Inc.,

Accordingly, the Court certifies the proposed Unpaid Overtime
Class.

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D.

Missed Meal Period Class

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Plaintiffs define the Missed Meal Period Class as: "All past

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and current California employees of LLI classified by LLI as non-

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1

exempt employees (including, but not limited to assistant store

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managers, sales associates, and warehouse associates) who worked

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more than 6 hours in any shift from September 3, 2005 through the

4

present."

Mot. at 1.

5

Under Section 512 of the Labor Code, employers are required to

6

provide a thirty-minute meal period to employees who work more than

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five hours per day.

8

no more than six hours per day, the meal period may be waived by

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mutual consent of the employer and employee.

Cal. Lab. Code § 512(a).

If an employee works

Id.

Employees who

United States District Court

For the Northern District of California

10

work more than ten hours per day are entitled to a second thirty-

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minute meal period.

12

Code, employers are prohibited from requiring employees to work

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during meal periods and, if an employer fails to provide a required

14

meal period, the employer must pay the employee for one additional

15

hour of work at the employee's regular rate of compensation.

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226.7.

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Id.

Further, under Section 226.7 of the Labor

Id. §

Plaintiffs allege that LLI regularly required employees to

18

work through their thirty-minute meal periods and that LLI failed

19

to compensate those employees for one additional hour of work in

20

accordance with Section 226.7 of the Labor Code.

21

their moving papers, Plaintiffs claim that these missed meal

22

periods were the result of understaffing and a statewide policy

23

that required employees to remain on the premises and close to the

24

showroom throughout their shifts so that they could respond to

25

phone calls and customer questions.

26

Plaintiffs claim that LLI employees were constantly "on-duty," even

27

during their meal breaks.

28

Mot. at 18.

FAC ¶¶ 48-51.

In other words,

See id.

Zaldivar has testified that LLI rarely provided him with a

15

In

1

thirty-minute meal period and that "most of the time it was

2

working, eating, working, eating."

3

testified: "We just didn't have time to have lunches."

4

at 244.

5

other LLI employees, each of whom stated: "During my workday I

6

never got a meal break of 30 minutes free to eat without

7

interruption from work or customers.

8

for at least 30 minutes of my own free time due to my job duties."

9

Pls.' Emp. Decls. ¶ 10.

United States District Court

Chavez

Chavez Dep.

Additionally, Plaintiffs submitted declarations from seven

I could never leave the Store

LLI asserts that it has implemented a uniform meal policy in

10
For the Northern District of California

Zaldivar Dep. at 102.

11

compliance with California Law.

Opp'n at 12.

LLI's employee

12

handbook requires non-exempt employees to record the time they

13

begin and end each meal period and states that "employees are

14

expected to take [their] lunch/meal times within the time limits

15

set by [their] supervisor."

16

Handbook") §§ 401, 704.

17

number of other LLI employees, including Store Managers and non-

18

exempt employees, who state that LLI provides meal periods in

19

compliance with the Labor Code.

20

("Angenent Decl.") ¶ 10, 67-3 ("Biehl Decl.") ¶ 13, 67-5

21

("Daigneault Decl.") ¶ 20.

Matherne Decl.8 Ex. 11 ("LLI Employee

LLI has also submitted declarations from a

See, e.g., ECF Nos. 67-2

The Court finds that the Missed Meal Period class fails to

22
23

meet the predominance requirements of Rule 23(b).

24

meal break policy and the Court would need to engage in individual

25

factual inquiries to determine whether certain stores or Store

26

Managers deviated from that policy.

27

8

28

LLI has a lawful

Specifically, for each alleged

E. Jean Matherne ("Matherne"), LLI's Senior Vice President of
Human Resources, submitted a declaration in opposition to
Plaintiffs' Motion. ECF No. 69 ("Matherne Decl.").

16

1

violation, the Court would need to determine, among other things:

2

(1) whether an employee actually took a meal break; (2) whether

3

that employee worked more than a five- or six-hour shift; (3)

4

whether LLI forced that employee to work through the meal break;

5

and (4) whether that employee was compensated for the missed meal

6

period in accordance with Section 226.7 of the Labor Code.
Plaintiffs argue that these individual questions are trumped

7
8

by common questions concerning staffing levels and LLI's

9

requirement that on-duty employees remain available to work during

United States District Court

For the Northern District of California

10

meal breaks.

11

indication that LLI's staffing levels are uniform from store-to-

12

store.

13

meal periods, the Court would need to engage in individualized

14

questions concerning the staffing requirements at each of LLI's

15

twenty-four California locations.

16

requirements could vary from day to day.

17

indication that LLI implemented a uniform policy that required

18

employees to remain on duty throughout their meal breaks.

19

Court is unwilling to infer the existence of such a uniform policy

20

from the declarations of a handful of employees from a fraction of

21

LLI's twenty-four California locations.

22

assertion that this policy was uniform is undercut by the employee

23

declarations submitted by Defendants.9

24

9

25
26
27
28

Reply at 12.

The Court disagrees.

There is no

To determine whether staffing levels resulted in missed

Additionally, these staffing
Likewise, there is no

The

Moreover, Plaintiffs'

Other district courts in this circuit have also declined to
certify missed meal period classes in the face of similar
allegations. See Hadjavi v. CVS Pharmacy, Inc. No. 10-4886 SJO,
2011 WL 3240763, at *8 (C.D. Cal. July 25, 2011) ("In order to
establish Defendants' liability, the Court would be forced to
proceed store-by-store and employee-by-employee to determine
whether Defendants' effectively violated California labor laws,
despite hav[ing] written policies permitting meal and rest breaks .
. . ."); Washington v. Joe's Crab Shack, 271 F.R.D. 629, 641 (N.D.

17

Plaintiffs also argue that the Ninth Circuit's decision in

1
2

United Steel mandates certification in the instant action.

Reply

3

at 11.

4

"c[ould] not leave their units during their meal breaks and [were]

5

subject to interruptions to which they must respond, their meal

6

periods [were] 'on duty' within the meaning of California law."

7

United Steel, 593 F.3d at 804.

8

certification, finding "if Plaintiffs' 'on duty' theory fails, then

9

common questions will no longer predominate over individual ones."

In that case, the plaintiffs alleged that because they

The district court denied class

United States District Court

For the Northern District of California

10

Id. at 807.

11

its discretion by denying certification based on the possibility

12

that the plaintiffs would not prevail on the merits.

13

In contrast, in the instant action, the Court need not and does not

14

evaluate the merits of Plaintiffs' claims to determine whether

15

common questions predominate.

16

The Ninth Circuit found that the district court abused

Id. at 808.

For the reasons set forth above, the Court DENIES Plaintiffs'

17

motion for class certification with respect to the Missed Meal

18

Period Class.

19

E.

20

Plaintiffs define the unpaid vacation class as: "All past

Unpaid Vacation Class

21

employees of [LLI] employed in California from September 3, 2005

22

through the present who accrued vacation wages that were not cashed

23

out or used."

24

required to pay employees for vested vacation time upon termination

25
26
27
28

Mot. at 1.

Under California Law, employers are

Cal. 2010) ("In the absence of any common policy, an individualized
inquiry will be required to determine whether any single employee
failed to take a meal break because he/she was too busy . . . .");
Mateo v. V.F. Corp., No. 08-5313 CW, 2009 WL 3561539, at *6 (N.D.
Cal. Oct. 27, 2009) (finding that individual issues predominated
where employees had to work through meal breaks due to lack of
minimum staffing).

18

1

of employment.

2

representative for Plaintiffs' unpaid vacation claim, asserts that

3

LLI failed to pay him for all vacation time owed after he quit in

4

April 2009.

5

Cal. Lab. Code § 227.3.

Chavez, the class

Chavez Decl. ¶ 5.

As LLI points out, it is unclear whether Chavez suffered an

6

injury and, thus, whether he has standing to bring this claim.

See

7

Opp'n at 24.

8

"no idea" how much vacation he is owed from LLI and that he never

9

tried to calculate the exact amount.

During his deposition, Chavez admitted that he has

Chavez Dep. at 318-320.

United States District Court

For the Northern District of California

10

Further, LLI payroll records show that LLI paid Chavez over $3,600

11

from 2007 to 2008 for accrued, unused vacation.

12

9, Ex. 16.

13

vacation time Chavez accrued, but they offer no evidence to support

14

the contention.

15

Matherne Decl. ¶

Plaintiffs argue that this does not account for all the

See Reply at 15.

While the Court may not assess the merits of Chavez's claim at

16

this stage of the litigation, the evidence before the Court

17

indicates a lack of typicality, commonality, and predominance under

18

Rule 23.

19

to a unique defense, specifically, that Chavez has already been

20

paid for accrued vacation time.

21

976 F.2d 497, 508 (9th Cir. 1992).

22

predominance, Plaintiffs have not pointed to any uniform policy

23

which has resulted in the denial of vacation pay.

24

record indicates that LLI has adopted a uniform policy which

25

provides for the "payment of all accrued but unused [paid time

26

off]."

Chavez's claims are not typical because they are subject

See Hanon v. Dataproducts Corp.,
As to commonality and

In fact, the

Matherne Decl. Ex. 14 ("LLI Paid Time Off Policy") § 4.9.2.

27

Plaintiffs argue that "[p]roof of the vacation pay claims

28

requires only comparison of LLI's records reflecting the amount of

19

1

vacation pay owed against LLI's records reflecting the amount of

2

wages owed at termination."

3

over Chavez's vacation pay indicates that the factual inquiry will

4

be much more complicated than Plaintiffs make it out to be.

5

records show that Chavez was paid for all of the vacation time he

6

was owed.

7

require the Court to determine the accuracy of those records

8

through testimony or other evidence -- a highly individualized

9

inquiry that would need to be repeated for each class member if the

United States District Court

For the Northern District of California

10
11
12

Reply at 15.

However, the dispute

LLI's

Accordingly, evaluation of Chavez's vacation claim will

Court were to certify the class.
For these reasons, the Court DENIES certification for
Plaintiffs' Unpaid Vacation Class.

13

F.

14

Plaintiffs define the Unpaid Reimbursement Class as: "All past

15

and current employees of Defendants who were employed in California

16

from September 3, 2005 through the present who were not reimbursed

17

for all work-related expenses."

18

Plaintiffs' claim under Section 2802 of the Labor Code, which

19

provides that an employer must indemnify an employee "for all

20

necessary expenditures or losses incurred by the employee in direct

21

consequence of the discharge of his or her duties."

22

§ 2802(a).

23

a number of other LLI employees who filed declarations in support

24

of Plaintiffs' Motion, used their personal vehicles and cellular

25

phones to perform their jobs, without any reimbursement from LLI.

26

Mot. at 21.

27
28

Unpaid Reimbursement Class

Mot at 2.

This class is tied to

Cal. Lab. Code

Plaintiffs assert that Chavez and Zaldivar, along with

The Court finds that certification is inappropriate for the
Unpaid Reimbursement Class because, under Rule 23(b), common issues

20

1

do not predominate.

Plaintiffs have not shown that LLI instituted

2

a uniform policy resulting in the denial or reimbursement requests.

3

In fact, LLI's Travel and Entertainment policy (T&E Policy) allows

4

for reimbursement of a number of business-related expenses,

5

including mileage.

6

4.7.5.

7

reimbursement claim, the Court would need to scrutinize each class

8

member's claimed expenses.

9

make individualized factual determinations concerning: (1) whether

Matherne Decl. Ex. 13 ("LLI T&E Policy") §

Accordingly, to assess the merits of Plaintiffs'

Specifically, the Court would need to

United States District Court

For the Northern District of California

10

the claimed expenses were "necessary" and incurred in direct

11

consequence of the discharge of the employee's duties; (2) whether

12

the employee actually sought reimbursement from LLI for the

13

expenses; and (3) whether LLI reimbursed the employee for the

14

expense.

15

2009 WL 648973, at *7-8 (S.D. Cal. Jan. 29, 2009) (class

16

certification denied "because of the difference in expenses

17

incurred across the class, reasonability of those expenses, and

18

defendant's compensation of those [class members]").

19

inquiry appears to be critical since some class members may not

20

have sought reimbursement.

The second

See Chavez Dep. at 189.

Accordingly, the Court DENIES Plaintiffs' motion for class

21
22

See Ruiz v. Affinity Logistics Corp., No. 05-2125 JLS,

certification with respect to the Unpaid Reimbursement Class.

23
24
25

V.

CONCLUSION
For the reasons set forth above, the Court GRANTS in part and

26

DENIES in part Plaintiffs Crelencio Chavez and Jose Zaldivar's

27

Motion for Class Certification.

28

proposed Unpaid Overtime Class, and DENIES certification of the

The Court CERTIFIES Plaintiffs'

21

1

Misclassified Unpaid Overtime Class, the Missed Meal Break Class,

2

the Unpaid Vacation Class, and the Unpaid Reimbursement Class.

3
4

IT IS SO ORDERED.

5
6
7

Dated: March 26, 2012
UNITED STATES DISTRICT JUDGE

8
9

United States District Court

For the Northern District of California

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