Sanchez et al v. Capital Contractors Inc. et al

Filing 129

ORDER DENYING PLAINTIFFS' MOTION FOR CLASS CERTIFICATION. Signed by Judge Maxine M. Chesney on June 7, 2017. (mmclc1, COURT STAFF) (Filed on 6/7/2017)

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1 2 3 IN THE UNITED STATES DISTRICT COURT 4 FOR THE NORTHERN DISTRICT OF CALIFORNIA 5 6 LILLIANA SANCHEZ, ET AL., Plaintiffs, 7 ORDER DENYING PLAINTIFFS' MOTION FOR CLASS CERTIFICATION v. 8 9 Case No. 14-cv-02622-MMC CAPITAL CONTRACTORS, INC., Defendant. 10 United States District Court Northern District of California 11 12 Before the Court is the "Motion for Class Certification," filed November 11, 2016, 13 by plaintiffs Lilliana Sanchez, Yolanda Camey and Juan Carlos Ramirez. Defendant 14 Capital Contractors, Inc. ("Capital") has filed opposition, to which plaintiffs have replied. 15 Additionally, Capital, with leave of court, has filed a surreply. Having read and 16 considered the parties' respective written submissions, the Court hereby rules as follows.1 17 BACKGROUND 18 In the operative complaint, the Second Amended Complaint ("SAC"), plaintiffs 19 allege that Capital "provides cleaning services to major industrial clients throughout 20 California." (See SAC ¶ 11.) Plaintiffs further allege that each of them entered into an 21 "Independent Contractor Agreement" ("ICA"), under which each such plaintiff agreed to 22 provide certain services to Capital (see SAC ¶¶ 18-19, 26); specifically, plaintiffs allege, 23 they agreed to "perform the janitorial services themselves for Capital's clients and/or 24 engage janitorial workers . . . to perform the janitorial services for Capital's clients" (see 25 SAC ¶ 12). 26 Plaintiffs allege that Capital, consistent with the title of the written agreement each 27 1 28 By order filed April 18, 2017, the Court took the matter under submission. plaintiff signed, classified plaintiffs as "independent contractors." (See id.) According to 2 plaintiffs, each of them, during the period of time in which they provided services to 3 Capital, "should have been properly classified as a non-exempt hourly employee of 4 Capital" (see SAC ¶¶ 14-16), and that, during the respective periods of time in which they 5 state they were misclassified, Capital did not provide them with rights available to an 6 employee under California law, such as paying them "overtime wages" and providing 7 "rest breaks" (see SAC ¶ 40). Plaintiffs bring their claims on behalf of a putative class 8 consisting of persons who contracted in California to provide "cleaning services at 9 Capital's clients' properties" and who were "misclassified" by Capital as independent 10 contractors. (See SAC ¶ 42.) Plaintiffs refer to themselves and the members of the 11 United States District Court Northern District of California 1 proposed class collectively as "ICs" (see SAC ¶¶ 12, 18-23) and seek on behalf of all 12 plaintiffs, both named and proposed, declaratory/injunctive and monetary relief. 13 14 In its answer, Capital denies that plaintiffs and the members of the putative class were employees. (See Answer ¶¶ 14-16, 20.) DISCUSSION 15 16 By the instant motion, plaintiffs, pursuant to Rule 23 of the Federal Rules of Civil 17 Procedure, seek an order certifying a class for purposes of resolving their claims, which 18 are defined by plaintiffs as their "entitlement to 1) minimum and overtime wages, 2) meal 19 and rest period periods, 3) reimbursement of business expenses and pay deductions, 4) 20 indemnity from Capital, 5) restitution under Cal. Bus. & Prof. Code § 17200, et seq., 6) 21 the adequacy of Capital's recordkeeping and wage statement practices . . ., and 7) 22 whether a 'good faith' dispute (so as to avoid . . . 'waiting time' penalties) exists." (See 23 Pls.' Mot. at 15:18-24). The class proposed by plaintiffs consists of "[a]ll persons who, 24 from April 25, 2010 to final judgment, have been (a) employed by Capital . . . pursuant to 25 contract in the State of California to perform cleaning services at Capital's clients' 26 locations; and (b) classified as an 'independent contractor' while performing cleaning 27 services and/or supervising the performance of cleaning services at Capital's clients' 28 properties." (See id. at 2:7-15.) 2 A district court may not certify a class unless the plaintiff has met the four 1 2 requirements set forth in Rule 23(a): "'(1) the class is so numerous that joinder of all 3 members is impracticable, (2) there are questions of law or fact common to the class, 4 (3) the claims or defenses of the representative parties are typical of the claims or 5 defenses of the class, and (4) the representative parties will fairly and adequately protect 6 the interests of the class.'" See Wal-Mart Stores v. Dukes, 564 U.S. 338, 345 (2011) 7 (quoting Fed. R. Civ. P. 23(a)). Additionally, the district court must find the plaintiff has 8 "satisf[ied] at least one of the three requirements listed in Rule 23(b)." See id. Here, 9 plaintiffs seek certification under Rules 23(b)(2) and 23(b)(3), the additional requirements of which the Court first addresses, as set forth below. 11 United States District Court Northern District of California 10 A. Rule 23(b)(2) 12 Rule 23(b)(2) provides for certification of a class where "the party opposing the 13 class has acted or refused to act on grounds that apply generally to the class, so that 14 final injunctive relief or corresponding declaratory relief is appropriate respecting the 15 class as a whole." See Fed. R. Civ. P. 23(b)(2). "Class certification under Rule 23(b)(2) 16 is appropriate only where the primary relief sought is declaratory or injunctive." Zinser v. 17 Accufix Research Institute, Inc., 253 F.3d 1180, 1195 (9th Cir. 2001). To obtain 18 certification under Rule 23(b)(2), the plaintiff must show "a single injunction or declaratory 19 judgment would provide relief to each member of the class." See Wal-Mart, 564 U.S. at 20 360. 21 Here, plaintiffs seek a "judicial declaration that ICs are employees of Capital, and 22 corresponding injunctive relief -- a judicial order directing Capital to cease its unlawful 23 practice of classifying ICs as independent contractors and failing to provide the 24 protections afforded employees under the California Labor Code." (See Pls.' Mot. at 25 17:6-9.) 26 A plaintiff who seeks to certify a class under Rule 23(b)(2) must have standing to 27 seek the declaratory and/or injunctive relief sought on behalf of the class. See Bates v. 28 United Parcel Service, 511 F.3d 974, 983–85 (9th Cir. 2007) ("In a class action, standing 3 1 is satisfied if at least one named plaintiff meets the [standing] requirements."). To do so, 2 the plaintiff "must demonstrate that he is realistically threatened by a repetition of the 3 violation." See Armstrong v. Davis, 275 F.3d 849, 860-61 (9th Cir. 2001) (internal 4 quotation and citation omitted); see also Hodgers–Durgin v. De La Vina, 199 F.3d 1037, 5 1044–45 (9th Cir. 1999) (dismissing plaintiffs' claims for declaratory and injunctive relief 6 brought on behalf of class, where named plaintiffs failed to show “likelihood of future 7 injury” from challenged policy). As Capital has pointed out, plaintiffs are "former alleged employees." (See 9 Answer at 17:5.) Plaintiffs point to no evidence that they are "realistically threatened" by 10 Capital's classification decisions and alleged violations of the California Labor Code, see 11 United States District Court Northern District of California 8 Armstrong, 275 F.3d at 860-61, as they arguably might be if they "were in the process of 12 seeking reinstatement to their former positions, or seeking work from that employer," see 13 Walsh v. Nevada Dep't of Human Resources, 471 F.3d 1033, 1037 (9th Cir. 2006). 14 Under such circumstances, plaintiffs have failed to show that any of them has any 15 likelihood of being injured in the future by Capital's practices. See id. (holding former 16 employee who did not claim “any interest in returning to work” for defendant employer not 17 entitled to seek injunctive relief regarding workplace policies). Consequently, plaintiffs are 18 not entitled to seek on behalf of a class declaratory or injunctive relief with respect to 19 Capital's practices. 20 Accordingly, irrespective of whether plaintiffs would be able to satisfy the four 21 prerequisites set forth in Rule 23(a), plaintiffs have failed to show certification under Rule 22 23(b)(2) is proper. 23 B. Rule 23(b)(3) 24 Rule 23(b)(3) provides for certification of a class where "the court finds that the 25 questions of law or fact common to class members predominate over any questions 26 affecting only individual members, and that a class action is superior to other available 27 methods for fairly and efficiently adjudicating the controversy." See Fed. R. Civ. P. 28 23(b)(3). Here, plaintiffs seek to establish that the members of the proposed class should 4 1 have been classified as "employees" of Capital (see SAC ¶¶ 25-26) and, thus, that 2 Capital wrongfully failed to provide them with the statutory benefits to which employees 3 are entitled under California law, such as overtime pay, meal/rest breaks, reimbursement 4 for necessary expenses, and timely payment of wages upon termination of employment. 5 1. Propriety of Classification as Independent Contractor 6 "Considering whether 'questions of law or fact common to class members 7 predominate' begins, of course, with the elements of the underlying cause of action," 8 Erica P. John Fund, Inc. v. Halliburton Co., 563 U.S. 804, 809 (2011) (quoting Rule 9 23(b)(3)). Here, each claim as to which plaintiffs seek to proceed on behalf of the proposed 11 United States District Court Northern District of California 10 class is dependent on a finding that Capital should have classified the ICs as employees 12 rather than independent contractors. Under California law, "[t]he principal test of an 13 employment relationship is whether the person to whom service is rendered has the right 14 to control the manner and means of accomplishing the result desired." See Tieberg v. 15 Unemployment Ins. Appeals Board, 2 Cal. 3d 943, 946 (1970).2 16 As explained by Capital's Rule 30(b)(6) witness, upon whose testimony plaintiffs 17 rely, the client, at the time it contracts with Capital, provides Capital with the "scope of 18 work" the client desires, "such as floor care" or "bathroom cleaning" (see Salassi Decl. 19 Ex. B at 34:6-11), and that Capital, in turn, enters into contracts with the ICs, under which 20 the ICs perform the "negotiated scope of work" (see id. Ex. B at 77:21 - 78:3). 21 Consequently, in contracting with the ICs, "the result desired" by Capital, see Tieberg, 2 22 2 23 24 25 26 27 28 Courts applying California law also consider "secondary indicia of the nature of a service relationship," including "(a) whether the one performing services is engaged in a distinct occupation or business; (b) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision; (c) the skill required in the particular occupation; (d) whether the principal or the worker supplies the instrumentalities, tools, and the place of work for the person doing the work; (e) the length of time for which the services are to be performed; (f) the method of payment, whether by the time or by the job; (g) whether or not the work is a part of the regular business of the principal; and (h) whether or not the parties believe they are creating the relationship of employer-employee." See Alexander v. FedEx Ground Package System, Inc., 765 F.3d 981, 988-89 (9th Cir. 2014). 5 1 Cal. 3d at 946, is that the ICs, either themselves and/or through others they hire, provide 2 to Capital's clients the janitorial services desired by those clients. 3 In arguing one can determine on a classwide basis whether Capital has the right to 4 control the manner and means by which the ICs accomplish the result desired, plaintiffs 5 rely primarily on a form agreement in which the relationship between Capital and the ICs 6 is defined, namely, the ICA. 7 Where there exists a form agreement defining the rights of the parties thereto, the 8 agreement is "a significant factor for consideration" at the merits stage with respect to the 9 right to control, see id. at 952; "what matters is the extent of control which, by the agreement, the master may exercise over the details of the work," see Ayala v. Antelope 11 United States District Court Northern District of California 10 Valley Newspapers, Inc., 59 Cal. 4th 522, 534 (2014); see also Alexander, 765 F.3d at 12 989 (holding, where plaintiffs demonstrated defendant's form agreement "unambiguously 13 allowed [defendant] to exercise a great deal of control over the manner by which 14 [plaintiffs] [did] their jobs," such evidence "strongly favor[ed]" plaintiffs' position as to right 15 of control). 16 "At the class certification stage," however, "the importance of a form contract is not 17 in what it says, but that the degree of control it spells out is uniform across the class," see 18 Ayala, 59 Cal. 4th at 534, "[t]he relevant question [being] whether the scope of the right to 19 control, whatever it might be, is susceptible to classwide proof," see id. at 537. In that 20 regard, "the key" issue at the class certification stage is "whether there is evidence a hirer 21 possessed different rights to control with regard to its various hirees, such that individual 22 mini-trials would be required." Id. at 536.3 23 24 25 26 27 28 3 In determining whether class certification is appropriate, California courts apply § 382 of the California Code of Civil Procedure. Under § 382, a plaintiff must show common issues of fact or law predominate over individual issues, see Brinker Restaurant Corp. v. Superior Court, 53 Cal. 4th 1004, 1021 (2012), which a plaintiff seeking certification under Rule 23(b)(3) likewise must show. Accordingly, for purposes of the instant analysis, the Court considers state court decisions persuasive authority on the issue of predominance, as do the parties. (See, e.g., Pls.' Reply at 11:11-13; Def.'s Opp. at 23:5-7.) 6 1 In support of the instant motion, plaintiffs point out that the ICA contains a 2 provision governing Capital's control over the ICs' work and, based thereon, contend the 3 question of whether the ICs are in fact employees is a question common to all class 4 members. The provision on which plaintiffs rely, as found in versions of the ICA in effect 5 up to August 2016, is as follows: "Capital may take any reasonable and necessary 6 actions to ensure that the work conforms to the contract, including the right of inspection." 7 (See Salassi Decl. Ex. E ¶ 4, Ex. B at 112:8 - 113:4 and Ex. 17 attached thereto; see also 8 Cabrera Decl. Exs. 19 ¶ 4, 20 ¶ 4, 25 ¶ 4.) In the present version of the ICA, in effect as 9 of August 17, 2016, the provision is as follows: "Capital reserves the right to take any reasonable and necessary action to ensure that the Services conform to the Agreement, 11 United States District Court Northern District of California 10 including but not limited to the right to inspect Customer premises as to the requirements 12 of Customer." (See Cabrera Decl. Ex. 27 ¶ 2c.) The parties agree that Capital, under the 13 above-quoted provision, can require ICs to "conform to the contract," i.e., "the 14 Agreement" between Capital and its client. (See Pls.' Mot. at 1:22-23, 5:15-17 (stating 15 "Capital mandate[s] whatever terms were negotiated [with its clients] down to the ICs" 16 and that Capital, as "guarantor of its customers' satisfaction," must "necessarily ensure 17 the IC's performance"); Def.'s Opp. at 13:2-3, 14:4-5 (stating ICs have "the responsibility" 18 to "meet expectations outlined by the customer").) The parties disagree, however, as to 19 whether said provision entitles Capital to exercise as to each IC the same degree of 20 control. 21 In light of that disagreement, the question at this stage is whether "the degree of 22 control" Capital has, in light of its contractual right to require each IC to "conform" to the 23 agreement between Capital and the client for whom the IC provides janitorial services, is 24 "uniform across the class," see Ayala, 59 Cal. 4th at 534, or is "subject to variations that 25 would defy classwide proof and prove unmanageable," see id. at 538. 4 The Court finds 26 4 27 28 To the extent plaintiffs cite to another provision of the ICA, one which "requires [Capital's] contractors [to] conduct themselves with the same Code of Conduct [Capital] requires of [itself]" (see Salassi Decl. Ex. E § 24), plaintiffs' reliance is unavailing as the Code of Conduct is unrelated to the manner by which ICs or their employees perform 7 1 the subject provision affords Capital a right to control that is coextensive with the 2 individual client's requirements. In light thereof, the Court further finds Capital's right of 3 control is subject to a degree of variance inconsistent with commonality, as the record 4 establishes that Capital's clients varied greatly in their requirements, with some spelling 5 out in detail the manner in which the work was to be performed and others stating 6 essentially no more than the desired result. (See Salassi Decl. Ex. B at 34:6-9) 7 (explaining "Scope of Work" section of Capitol's contract with client is left blank because 8 "[t]here's no typical scope of work").) "Some Capital customers," for example, "have 9 requested detailed written tasks to be performed by the janitorial workers," whereas "other customers simply request the presence of janitorial workers for a certain period." 11 United States District Court Northern District of California 10 (See Stone Decl. ¶ 5.c.) 12 Plaintiffs next argue that, irrespective of the above-discussed provision of the ICA, 13 the degree of control Capital exercises is, in practice, the same for all ICs. In support 14 thereof, plaintiffs rely exclusively on their own depositions and declarations, in which 15 each of the three plaintiffs describes what plaintiffs argue is a similar and substantial 16 degree of control exercised by Capital.5 (See, e.g., Salassi Decl. Ex. G (Sanchez Decl.) 17 ¶¶ 1, 4 (averring Capital gave her "written instructions regarding the scope of work," 18 which instructions were "very specific," such as how often to "wipe" equipment and the 19 particular "tool" to be used for a given task); id. Ex. A (Sanchez Dep.) 121:10 - 124:19 20 (testifying Capital required her to advise Capital before she could terminate an employee 21 and that Capital would decide if such worker could be terminated); id. Ex. H (Ramirez 22 Decl.) ¶¶ 2, 5 & Ex. 2 attached thereto (averring he was "told by Capital what type of 23 24 25 26 27 28 their janitorial work (see id. Ex. F) (requiring ICs to comply with prevailing wage requirements and to retain documents relating to pending litigation; prohibiting ICs from accepting bribes)). 5 Although, for purposes of assigning "liability," the ICA states "Capital shall have no right of control over the manner in which the work is to be done" (see Salassi Decl. Ex. E § 5), no party has cited to such language, which, in any event, as set forth below, appears to be inconsistent with how Capital viewed its right to oversee the ICs' work. 8 1 work to perform," including by written instructions specifying tasks that were "to be 2 completed in [their] entirety," such as cleaning restrooms in six sequential steps and 3 cleaning shower areas in nine sequential steps); id. ¶ 3 (averring that, on over forty 4 occasions, Capital "told [him] which worker had to be placed on a certain job or that a 5 certain worker could not be used for a certain job"); Allen Decl. Ex. B (Camey Dep.) 6 158:21-25 (testifying "Capital was the one that indicated what had to be done and in what 7 way [she and her employees] had to do the cleaning").)6 8 Assuming, arguendo, plaintiffs' experiences can be characterized as "uniform," 9 see Ayala, 59 Cal. 4th at 533, plaintiffs nonetheless fail to offer evidence to support a finding that their experiences were substantially similar to those of other ICs. Indeed, as 11 United States District Court Northern District of California 10 Capital points out, plaintiffs offer no evidence as to the experiences of any other IC. 12 Moreover, Capital has offered declarations from four individuals who, Capital asserts and 13 plaintiffs do not disagree, are putative class members, each of whom states, in essence, 14 that Capital has not controlled the manner by which those ICs and their employees 15 accomplish the result desired. (See Cabrera Decl. Ex. 6 (Rodriguez Decl.) ¶¶ 7, 9 16 (averring "Capital is not involved in managing, supervising or disciplining [his] employees" 17 and "has never been involved in determining the number of employees who clean each 18 building, their work schedules, or the exact hours spent performing such cleaning 19 services"); id. Ex. 7 (Ojeda Decl.) ¶ 5 (averring he is "responsible for supervising and 20 overseeing the work of [his] employees and contractors when they are performing their 21 duties"); id. Ex. 8 (Hatridge Decl.) ¶ 8 (averring "Capital has never been involved in 22 determining the number of [her] employees who clean at [client's site], their work 23 6 24 25 26 27 28 The similarity of the three plaintiffs' experiences appears to be the result of their having shared a common Capital client, 24 Hour Fitness (see Salassi Decl. Ex. A (Sanchez Dep.) 21:9 - 25:17, 109:8-22; id. Ex. C (Ramirez Dep.) 124:22 - 127:13; Allen Decl. Ex. B (Camey Dep.) 121:4-7, 157:25 - 158:15)), which client provided detailed instructions to Capital as to the cleaning of gym facilities (see Cabrera Decl. Ex. 5 at 40:1-18, 49:25 - 50:5 (Capital's Rule 30(b)(6) witness testifying 24 Hour Fitness's agreement with Capital required cleaners to use only "client-approved chemicals and materials" and identified the "specific scope of work for the different areas of the gym," including particular tasks to be performed and frequency thereof)). 9 1 schedules, or how any . . . employee performs his or her cleaning services"); id. Ex. 9 2 (Britt Decl.) ¶¶ 6-7 (averring he "handles all issues and decisions relating to the hiring, 3 training, compensating, work assignments, personnel matters, discipline and firing of [his] 4 employees" and "Capital was not involved in any of these decisions"; further averring 5 "Capital was never involved in determining . . . where or how any . . . employee performs 6 his or her cleaning services").)7 Consequently, plaintiffs have failed to show Capital, in 7 practice, exercises a uniform degree of control over the ICs with which it contracts. 8 9 In sum, under the above-quoted provision on which plaintiffs rely, the degree of control Capital has over an IC varies depending on the extent of control, if any, that is set forth in each individual contract between Capital and its client. Under such 11 United States District Court Northern District of California 10 circumstances, the trier of fact would be required to consider each client's contract with 12 Capital and each IC's experiences thereunder to determine whether the IC assigned to 13 such contract was subject to Capital's control over the manner and means of 14 accomplishing the result desired. 15 16 Accordingly, plaintiffs have failed to show a determination as to employment status is amenable to classwide proof.8 17 2. Overtime, Meal Break and Rest Break Claims 18 Even assuming employment status could be determined classwide, plaintiffs have 19 not shown their claims alleging Capital's failures to provide overtime pay, meal breaks 20 and rest breaks are appropriate for determination on a classwide basis. 21 Plaintiffs take the position that, if they show the ICs were misclassified as 22 7 23 24 It would appear that none of the ICs on which Capital relies performed services for 24 Hour Fitness or a similar gym facility. (See id. Ex. 6 (Rodriguez Decl.) ¶ 5); id. Ex. 7 (Ojeda Decl.) ¶ 9.b; id. Ex. 8 (Hatridge Decl.) ¶ 7); id. Ex. 9 (Britt Decl.) ¶¶ 3, 8.) 8 25 26 27 28 In light of such finding, the Court has not considered herein whether the secondary factors are subject to classwide proof. See Ayala, 59 Cal. 4th at 540 (holding trial court's finding that "substantial variations in control exist[ ]" is "sufficient to justify denying class certification and thus obviate[ ] any need for further inquiry [into secondary factors]"); cf. Zinser, 253 F.3d at 1189 (holding if "main issues in a case require the separate adjudication of each class member's individual claim," certification under Rule 23(b)(3) is inappropriate even if "there may be common issues" in case). 10 1 independent contractors, "Capital would be automatically liable" to the class on the 2 overtime, meal break and rest break claims. (See Pls.' Reply at 7:3-4.) Under California 3 law, however, "simply having the status of an employee does not make the employer 4 liable for a claim for overtime compensation or denial of breaks." Sotelo v. Medianews 5 Group, Inc., 207 Cal. App. 4th 639, 654 (2012). Rather, "[a]n individual employee 6 establishes liability by proving actual overtime hours worked without overtime pay, or by 7 proving that he or she was denied rest or meal breaks." See id. Although a class "may 8 establish liability by proving a uniform policy or practice by the employer that has the 9 effect on the group of making it likely that group members will work overtime hours without overtime pay, or [will] miss rest/meal breaks," id., here, as set forth below, no 11 United States District Court Northern District of California 10 such showing has been made. 12 Under California law, an employee is entitled to overtime pay for hours worked 13 more than "eight (8) hours in any workday" or more than "40 hours in the workweek." 14 See Cal. Code Regs., tit. 8, § 11050(3)(A)(1). Also, under California law, an employee is 15 entitled to a meal break if the employee works "more than five (5) hours," see Cal. Code 16 Regs, tit. 8, § 11050(11)(A), and to a rest break if he works at least "three and one-half 17 (3 1/2) hours," see Cal. Code Regs., tit. 8, § 11050(12)(A). Plaintiffs, however, fail to cite 18 any evidence that could support a finding that Capital has any uniform policy or practice 19 that has the effect of requiring ICs to work for Capital more than eight hours a day or 20 more than forty hours in a week, thereby entitling them to overtime pay. Nor have 21 plaintiffs submitted any evidence to support a finding that Capital has any uniform policy 22 or practice that has the effect of requiring ICs to work for Capital more than five hours a 23 day, thereby entitling them to a meal break, or the effect of requiring them to work for 24 Capital at least three and a half hours per day, thereby entitling them to a rest break. In 25 the absence of any such evidence, a trier of fact would be required to consider testimony 26 from each class member in order to determine whether he/she worked for Capital more 27 than eight hours in a day and whether such class member worked for Capital the 28 requisite number of hours to entitle him/her to meal and rest breaks. Compare Sotelo, 11 1 207 Cal. App. 4th at 655 (holding plaintiffs not entitled to proceed with overtime, meal 2 break and rest breaks claims on behalf of class of newspaper carriers, where plaintiffs 3 failed to make "factual showing" that defendant had any "uniform practices or policies" 4 with respect to overtime, meal breaks or rest breaks) with Jaimez v. DAIOHS USA, Inc., 5 181 Cal. App. 4th 1286, 1300 (2010) (finding plaintiffs entitled to proceed with meal and 6 rest break claims on behalf of class of persons who delivered water, where plaintiffs 7 submitted evidence showing defendant "create[d] routes and delivery schedules which it 8 pressured [class members] to complete in 8 hours," thereby discouraging meal and rest 9 breaks). The instant case involves a further factual complication that undermines plaintiffs' 10 United States District Court Northern District of California 11 effort to show common issues predominate. Specifically, each of the named plaintiffs 12 and each of the other IC declarants has acknowledged that, at the time he/she provided 13 services for Capital, he/she also provided services for other companies. (See, e.g., 14 Cabrera Decl. Ex. 3 (Camey Dep.) 120:11 - 121:24 (describing differences between her 15 interactions with Capital and other companies with which she contracted to provide 16 janitorial services); id. Ex. 6 (Rodriguez Decl.) ¶ 4 (stating his company "primarily cleans 17 office buildings for Capital and other clients"); see also Salassi Decl. Ex. A (Sanchez 18 Dep.) 82:6-16; id. Ex. C (Hernandez Dep.) 42:25 - 43:3, 122:24 - 123:4); Cabrera Decl. 19 Ex. 7 (Ojeda Decl.) ¶ 6; id. Ex. 8 (Hatridge Decl.) ¶ 7; id. Ex. 9 (Britt Decl.) ¶ 9.) Indeed, 20 plaintiffs acknowledge that "[a]ll class members . . . had the freedom to, and largely did, 21 work for other entitles." (See Pls.' Reply at 5:27-28.) Consequently, a showing that any 22 individual IC worked more than eight hours on any given day would not establish liability 23 on the part of Capital in the absence of a further showing by such individual, in which the 24 hours worked for each company are identified and counted separately. Accordingly, for the above-discussed additional reasons, plaintiffs are not entitled 25 26 to proceed on behalf of a class with respect to overtime, meal break and rest breaks 27 claims. 28 // 12 1 C. Conclusion as to Rule 23(b)(3) 2 Accordingly, irrespective of whether plaintiffs would be able to satisfy the four 3 prerequisites set forth in Rule 23(a), plaintiffs have failed to show certification under Rule 4 23(b)(3) is proper. CONCLUSION 5 6 7 8 For the reasons stated above, plaintiffs' motion for class certification is hereby DENIED. IT IS SO ORDERED. 9 10 Dated: June 7, 2017 MAXINE M. CHESNEY United States District Judge United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13

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