Jimenez et al v. Menzies Aviation Inc et al

Filing 56

ORDER CONCERNING CLASS CERTIFICATION re 39 MOTION to Certify Class. Signed by Judge William H. Orrick on 06/13/2016. (jmdS, COURT STAFF) (Filed on 6/13/2016)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 JESSICA JIMENEZ, et al., 7 Case No. 15-cv-02392-WHO Plaintiffs, 8 ORDER CONCERNING CLASS CERTIFICATION v. 9 MENZIES AVIATION INC, et al., 10 Re: Dkt. No. 39 Defendants. United States District Court Northern District of California 11 INTRODUCTION 12 This case involves the manner in which Menzies Aviation, Inc. and Menzies Aviation 13 14 Group (USA), Inc. (collectively “Menzies”) schedules and compensates its non-exempt San 15 Francisco International Airport (“SFO”) employees. On May 4, 2016, I GRANTED plaintiffs 16 Jessica Jimenez and Orlando Mijos’s motion to certify three classes (an overtime class, an 17 itemized wage statement class, and a waiting time penalties class) consisting of current and former 18 Menzies employees. Dkt. No. 51. This Order explains why. BACKGROUND 19 20 Menzies is a global aviation support company based in the United Kingdom that provides 21 cargo handling, aircraft maintenance, and aviation-related services in several locations around the 22 world, including SFO. Second Amended Complaint (“SAC”) ¶ 9 [Dkt. No. 1]. All SFO hourly, 23 non-exempt employees have the same payroll schedule. Employees were paid on a weekly basis 24 from June 2006 until approximately the beginning of 2011, when Menzies changed its payroll 25 schedule to bi-weekly. Mot. at 5 [Dkt. No. 39]. 1 Menzies designates the workweek as beginning 26 1 27 28 Plaintiffs assert certain background facts in their briefs without providing accurate citations to the record. Because Menzies does not contradict any of the relied upon facts, I use these assertions to set out the factual background of this case. All assertions garnered from the briefs are indicated by citations to the moving papers. 1 on Monday at 12:00am and ending on Sunday at 11:59pm. Cordero Decl. ¶ 10 [Dkt. No. 39-2]. Menzies pays its non-exempt employees at SFO using an individualized 2 3 workday/workweek schedule. Cordero Decl. ¶ 10. An employee’s individualized schedule 4 reflects shifts actually worked and may begin and end at different times than those designated. If a 5 non-exempt employee works a schedule with shifts starting at different times during the 6 workweek, Menzies uses the earliest start time on that employee’s schedule as the start time of the 7 workday. Id. The earliest start time may differ from the time the employee actually began 8 working on Monday, but it is applied retroactively to serve as the start time for the workweek.2 Similarly, Menzies calculates and pays its non-exempt employees daily overtime after 9 eight consecutive hours in a shift (minus time off the clock for meal periods), regardless of 11 United States District Court Northern District of California 10 whether the employee’s shift spans over midnight. Id. In other words, it calculates non-exempt 12 employee’s daily overtime wages from the start of their shift and continuing through the end of 13 their shift, even when the shift straddles two calendar days. Id. Plaintiffs, who worked for Menzies at SFO until the termination of their employments, 14 15 allege that Menzies’s above-described practice, termed the “variable workday/workweek,” fails to 16 comply with California Labor Code provisions and results in under-compensation of Menzies’s 17 non-exempt employees’ wages. Mot. at 2. Specifically, plaintiffs contend that Menzies’s “non- 18 exempt employees worked without appropriate overtime compensation, because they do not 19 receive the legal overtime rate for the hours worked after the eight hours in a workday and/or after 20 the forty hours in the designated workweek and/or hours worked during the seventh consecutive 21 day in the designated workweek (Monday at 12:00am to Sunday at 11:59pm).” SAC ¶ 106. 22 Plaintiffs also allege that, from June 2006 through December 2011, Menzies’s wage 23 statement did not provide the beginning of the pay period, did not reflect the rate or the total hours 24 an employee worked as a “Lead,” and failed to accurately include all hours worked and the 25 26 27 28 2 An example is instructive. Under Menzies’s method, if an employee clocks in at 8:00am on Monday, at 7:30am on Tuesday, and then at 8:00am for the rest of the week, the 7:30am time is considered the “earliest time” on the schedule and is designated as the workweek’s start time. Therefore, in this example, the employee’s workweek starts at 7:30am on Monday and concludes 168 hours from that time. 2 1 applicable hourly rate. Lastly, plaintiffs assert that Menzies has violated California labor law by 2 failing to pay all wages timely upon separation of employment. The operative complaint encompasses seven theories of liability: (1) failure to pay 3 4 minimum wage; (2) failure to pay overtime; (3) failure to timely pay all wages due upon 5 separation of employment; (4) failure to provide accurate itemized wage statements; (5) failure to 6 provide tools and equipment and/or reimburse business expenses; (6) violation of California 7 Business and Professions Code § 17200, et seq.; and a (7) claim under the California Private 8 Attorney General Act. But plaintiffs only seek certification on some of their claims. Specifically, 9 they seek to certify the following classes: 10 The SFO Overtime Class All current and former non-exempt employees of MENZIES AVIATION, INC. and/or MENZIES AVIATION GROUP (USA), INC., employed at the San Francisco International Airport who worked at least one shift that according to Defendants’ time clock records worked one or more periods consisting of consecutive hours that extended beyond midnight (12:00 a.m.) into to [sic] the next calendar day at any time from June 2, 2006 to the present. (For Causes of Action Nos. 2, 4, 6). United States District Court Northern District of California 11 12 13 14 15 The Itemized Wage Statement Class: All current and former non-exempt employees of MENZIES AVIATION, INC. and/or MENZIES AVIATION GROUP (USA), INC., employed at the San Francisco International Airport at any time from June 2, 2006 to January 1, 2012 who received one or more wage statements that according to Defendants’ records did not show the correct number of regular, overtime, or double time hours worked during the pay period, and/or did not show the corresponding applicable hourly rate, and/or failed to identify the inclusive dates of the pay period. (For Cause of Action No. 4). 16 17 18 19 20 The Waiting time Penalties Class: All former non-exempt employees of MENZIES AVIATION, INC. and/or MENZIES AVIATION GROUP (USA), INC., employed at the San Francisco International Airport members of the SFO Overtime Class who did not receive all wages upon separation of employment and who separated employment at any time from June 2, 2007 to the present. (For Cause of Action No. 3).3 21 22 23 24 Id. at 1. 25 I heard argument on April 13, 2016 and granted plaintiffs’ motion on May 4, 2016. 26 27 3 28 Because the Waiting time Penalties Class is derivative of the SFO Overtime Class, the success of the Waiting time Penalties Class rises and falls with the SFO Overtime Class. 3 LEGAL STANDARD 1 2 Federal Rule of Civil Procedure 23 governs class actions. “Before certifying a class, the 3 trial court must conduct a rigorous analysis to determine whether the party seeking certification 4 has met the prerequisites of Rule 23.” Mazza v. Am. Honda Motor Co., Inc., 666 F.3d 581, 588 5 (9th Cir. 2012) (internal quotation marks omitted). The burden is on the party seeking 6 certification to show, by a preponderance of the evidence, that the prerequisites have been met. 7 See Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2550-51 (2011); Conn. Ret. Plans & Trust 8 Funds v. Amgen Inc., 660 F.3d 1170, 1175 (9th Cir. 2011). 9 Certification under Rule 23 is a two-step process. The party seeking certification must first satisfy the four threshold requirements of Rule 23(a): numerosity, commonality, typicality, and 11 United States District Court Northern District of California 10 adequacy. Specifically, Rule 23(a) requires a showing that: 12 13 (1) the class is so numerous that joinder of all members is impracticable; 14 (2) there are questions of law or fact common to the class; 15 (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and 16 17 18 19 20 21 22 (4) the representative parties will fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23(a). The party seeking certification must then establish that one of the three grounds for certification applies. See Fed. R. Civ. P. 23(b). Here, plaintiff seeks certification under Rules 23(b)(2) and 23(b)(3). Rule 23(b)(2) requires that a plaintiff show “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive 23 relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. 24 Civ. P. 23(b)(2). Rule 23(b)(3) requires a plaintiff to establish “that the questions of law or fact 25 26 27 common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). 28 4 DISCUSSION 1 Plaintiffs easily satisfied the requisites for class certification, as I discuss below. I will not 2 3 address again Menzies’s argument concerning the effect of an arbitration agreement signed by 4 certain class members, including Mijos. I have ruled on this issue. Dkt. No. 19. Menzies asserts 5 that its appeal of my order denying its motion to compel arbitration has revealed new evidence 6 relevant to the arbitration inquiry. If that is true, I am confident that the Ninth Circuit will take it 7 into account. 8 I. RULE 23(a) REQUIREMENTS A. 9 Numerosity Rule 23(a)(1) requires that the “the class is so numerous that joinder of all members is 10 United States District Court Northern District of California 11 impracticable.” Fed. R. Civ. P. 23(a)(1). The party seeking certification “do[es] not need to state 12 the exact number of potential class members, nor is a specific number of class members required 13 for numerosity.” In re Rubber Chemicals Antitrust Litig., 232 F.R.D. 346, 350 (N.D. Cal. 2005). 14 However, courts generally find that numerosity is satisfied if the class includes forty or more 15 members. See Villalpando v. Exel Direct Inc., 303 F.R.D. 588, 605-06 (N.D. Cal. 2014); In re 16 Facebook, Inc., PPC Adver. Litig., 282 F.R.D. 446, 452 (N.D. Cal. 2012). Plaintiffs represent that 17 Menzies has already identified approximately 782 potential members of the SFO Overtime Class 18 and 1,135 potential members of the Itemized Wage Statement Class, of which a subset would 19 likely be class members because they are: (1) employees who received one or more wage 20 statements that did not show the correct number of hours worked during the pay period; (2) did not 21 show every time they worked as “Lead”; and/or (3) failed to include the applicable first date of the 22 pay period. Mot. at 15. Menzies does not dispute that the proposed classes satisfy numerosity.4 I 23 find that this element has been satisfied for all classes. 24 B. 25 The requirement of commonality demands that there be “questions of law or fact common 26 Commonality to the class.” Fed. R. Civ. P. 23(a)(2). To satisfy this requirement, the common question “must be 27 28 4 Menzies also does not dispute plaintiffs’ assertion that the classes are sufficiently ascertainable. 5 1 of such a nature that it is capable of class-wide resolution – which means that determination of its 2 truth or falsity will resolve an issue that is central to the validity of each of the claims in one 3 stroke.” Dukes, 131 S. Ct. at 2551. For purposes of Rule 23(a)(2), “even a single common 4 question will do.” Id. at 2556 (internal modifications omitted). i. 5 SFO Overtime Class Menzies asserts that because it assigns variable workdays and workweeks to employees 6 7 depending on their unique shift and working schedule, this individualized application defeats 8 commonality. Oppo. at 15 [Dkt. No. 40]. Its argument is unpersuasive. The commonality 9 requirement does not require that class members suffer identical harm. Rather, “[t]he existence of shared legal issues with divergent factual predicates is sufficient, as is a common core of salient 11 United States District Court Northern District of California 10 facts coupled with disparate legal remedies within the class.” Hanlon v. Chrysler Corp., 150 F.3d 12 1011, 1019 (9th Cir. 1998). There is no dispute that all non-exempt SFO employees are subject to 13 the same individualized workday and workweek compensation formula. Therefore, there exists at 14 least one common question – whether Menzies’s policy of paying its non-exempt employees based 15 on its variable workday/workweek policy, and not necessarily in accordance with the workweek as 16 designated in the employee handbook, properly compensates class members pursuant to California 17 law. 18 Menzies insists that in order to rule on class certification I need to make “threshold rulings 19 of law” regarding the viability of plaintiffs’ theories of liability. Oppo. at 16. But “Rule 23 grants 20 courts no license to engage in free-ranging merits inquiries at the certification stage.” Amgen Inc. 21 v. Connecticut Ret. Plans & Trust Funds, 133 S. Ct. 1184, 1194-95 (2013). “Merits questions may 22 be considered to the extent – but only to the extent – that they are relevant to determining whether 23 the Rule 23 prerequisites for class certification are satisfied.” Id. at 1195. Here, Menzies makes 24 several arguments regarding why its practices are lawful, including that: (i) the workday need not 25 align with the workweek; (ii) it need not apply the designated workweek as laid out in the 26 employee handbook to all employees; and (iii) that it may compensate employees based on the 27 schedules they actually worked. Oppo. at 16-20. But these merit-based arguments do not defeat 28 class certification. When the alleged concern about a proposed class is that it exhibits not some 6 1 “fatal dissimilarity but rather, a fatal similarity” as to an element of plaintiffs’ cause of action, the 2 question is properly engaged with on summary judgment, not class certification. Tyson Foods, 3 Inc. v. Bouaphakeo, 136 S. Ct. 1036, 1047 (2016) (“When, as here, the concern about the 4 proposed class is not that it exhibits some fatal dissimilarity but, rather, a fatal similarity – [an 5 alleged] failure of proof as to an element of the plaintiffs’ cause of action – courts should engage 6 that question as a matter of summary judgment, not class certification.”) (internal quotation marks 7 omitted). Because Menzies’s arguments would be relevant to all potential class members, they do 8 not prevent a finding of commonality. I need not decide the ultimate question of whether 9 Menzies’s overtime policy is lawful or unlawful in order to certify the class. Jimenez v. Allstate Ins. Co., 765 F.3d 1161, 1166 n.5 (9th Cir. 2014) (Merits-based arguments are “appropriately 11 United States District Court Northern District of California 10 made at trial or at the summary judgment stage.”). ii. 12 Itemized Wage Statements Plaintiffs’ Itemized Wage Statement class is based on Menzies’s alleged violation of 13 14 California Labor Code section 226. Their allegations rely primarily on three theories: (1) that the 15 pay stubs did not include the start date of the pay period; (2) that Menzies failed to properly 16 identify the rate of pay and the total number of hours worked as a “Lead;” and (3) that the pay 17 stubs did not reflect the correct numbers of hours worked and their corresponding hourly rate. 18 Menzies asserts that the existence of individualized questions regarding injury as a result of the 19 missing start date precludes a finding of commonality.5 Oppo. at 23. Section 226(a) requires every employer to furnish each of its employees an accurate 20 21 itemized statement, “either as a detachable part of the check, draft, or voucher paying the 22 employee’s wages, or separately when wages are paid by personal check or cash,” that shows, 23 among other things, “the inclusive dates of the period for which the employee is paid” and “all 24 applicable hourly rates in effect during the pay period and the corresponding number of hours 25 worked at each hourly rate.” Cal. Lab. Code § 226(a). Section 226(e)(1) provides that an 26 5 27 28 Menzies also makes certain merits-based arguments which, as explained above, are more appropriately adjudicated on summary judgment. As I stated in my analysis of the Overtime Class, I need not, and I do not, decide now whether the deficiencies plaintiffs rely on actually make the pay stubs non-compliant with California law. 7 employee suffering injury as a result of a “knowing and intentional failure by an employer” to 2 comply with Section 226(a) is entitled to damages for each pay period in which a violation occurs 3 as well as costs and attorney’s fees. Cal. Lab. Code § 226(e)(1). Plaintiffs may recover either 4 actual damages or statutory damages of “fifty dollars ($50) for the initial pay period in which a 5 violation occurs and one hundred dollars ($100) per employee for each violation in a subsequent 6 pay period, not to exceed an aggregate penalty of four thousand dollars ($4,000),” plus attorney’s 7 fees. Id. Section 226(e)(2) establishes that an employee is deemed to suffer an injury if the 8 employer “fails to provide accurate and complete information as required by [Section 226(a)] and 9 the employee cannot promptly and easily determine from the wage statement alone” the accurate 10 information. Cal. Lab. Code § 226(e)(2)(B). Section 226(e)(2)(C) defines “promptly and easily” 11 United States District Court Northern District of California 1 based on a reasonable person’s ability to ascertain the information in question. Cal. Lab. Code § 12 226(e)(2)(C). 13 Menzies contends that plaintiffs have not demonstrated any harm as a result of the missing 14 information and that individual inquiries are required to make an injury determination. But “the 15 injury requirement [of section 226] does not present a high hurdle for class certification.” Boyd v. 16 Bank of Am. Corp., 300 F.R.D. 431, 440 (C.D. Cal. 2014); see also Fields v. W. Marine Products 17 Inc., No. 13-cv-04916-WHA, 2014 WL 547502, at *8 (N.D. Cal. Feb. 7, 2014) (characterizing the 18 injury requirement under section 226 as “minimal”); Torchia v. W.W. Grainger, Inc., 304 F.R.D. 19 256, 274 (E.D. Cal. 2014) (same). For certification, plaintiffs need only establish that their class 20 presents at least one common question. Their claim presents common questions regarding 21 whether Menzies’s pay stubs lacked the required information under section 226 and whether it is 22 possible to promptly and easily determine the missing information. Because injury is measured by 23 a reasonable person’s ability, these questions can be answered on a classwide basis through an 24 examination of common evidence including the pay stubs themselves. See Brewer v. Gen. 25 Nutrition Corp., No. 11-cv-3587-YGR, 2014 WL 5877695, at *5 (N.D. Cal. Nov. 12, 2014) 26 (“Because the wage statements are uniform across the class with respect to these alleged violations 27 of the statute, and proof of injury is based upon what a “reasonable person” would understand 28 from the face of those wage statements, the issues of fact and law to be determined on these claims 8 1 are both common and predominant.”). Plaintiffs’ proposed classes satisfy the commonality 2 requirement. 3 C. Typicality and Adequacy 4 Rule 23(a)(3) requires that the “claims or defenses of the representative parties are typical 5 of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). The typicality requirement of 6 Rule 23(a)(3) assures that the interests of the named representatives align with the interests of the 7 rest of the class. Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992). “Under the 8 rule’s permissive standards, representative claims are ‘typical’ if they are reasonably co-extensive 9 with those of absent class members; they need not be substantially identical.” Hanlon, 150 F.3d at 1020. “The test of typicality is whether other members have the same or similar injury, whether 11 United States District Court Northern District of California 10 the action is based on conduct which is not unique to the named plaintiffs, and whether other class 12 members have been injured by the same course of conduct.” Hanon, 976 F.2d at 508 (internal 13 quotation marks omitted). 14 Similarly, to establish adequacy under Rule 23(a)(4), named plaintiffs must show that they 15 “will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). “To 16 determine whether named plaintiffs will adequately represent a class, courts must resolve two 17 questions: (1) do the named plaintiffs and their counsel have any conflicts of interest with other 18 class members and (2) will the named plaintiffs and their counsel prosecute the action vigorously 19 on behalf of the class?” Ellis v. Costco Wholesale Corp., 657 F.3d 970, 985 (9th Cir. 2011) 20 (internal quotation marks omitted). 21 Menzies does not assert that Jimenez or Mijos’s injuries differ from those of absent class 22 members. Nor does it contend that there is a conflict of interest between the named plaintiffs and 23 other class members or that counsel is unable to vigorously prosecute the action. Instead, Menzies 24 argues that Mijos is an inadequate class representative because of his “ignorance of his role” and 25 allegedly suspect credibility based on his previous confrontations with coworkers and supervisors. 26 Oppo. at 9-13. 27 28 Menzies contends that Mijos testified that he had never read the operative complaint, conceded that he did not understand parts of the pleading, and was not aware he was bringing the 9 1 lawsuit on behalf of others. Id. at 9. But this unfairly mischaracterizes Mijos’s deposition 2 testimony. While he did admit that he saw, but did not read the complaint, when asked what he 3 understood the complaint to be about he explained that it was against Menzies because, in part, he 4 did not receive overtime pay. Mijos Depo. 60: 10-20 [Ward Decl., Exh. F]. Furthermore, he 5 stated that although the complaint currently only involves himself, he explained that it would be 6 appropriate if others wanted to get involved because there were many other employees who also 7 did not receive proper pay. Id. His knowledge of the case is also reflected in the declaration he 8 filed contemporaneously with his motion for class certification.6 In his declaration, he asserts that 9 he is “familiar with [his] duties as a class representative” and “believe[s] that [his] interests are the same as the interests of the other non-exempt [employees] because [he] believe[s they] were all 11 United States District Court Northern District of California 10 subject to the same policies and practices of Menzies and were similarly injured by Menzies’s 12 company-wide policies and practices.” Mijos Decl. ¶¶ 7, 8 [Dkt. No. 39-15]. In general, “a party who is not familiar with basic elements of its claim is not considered to 13 14 be an adequate representative for the class because there is no sense that there is an actual party 15 behind counsel’s prosecution of the action.” Burkhalter Travel Agency v. MacFarms Int’l, Inc., 16 141 F.R.D. 144, 153 (N.D. Cal. 1991). But named plaintiffs need not be legal experts in order to 17 be considered adequate representatives. See Moeller v. Taco Bell Corp., 220 F.R.D. 604, 611 18 (N.D. Cal. 2004) (“The threshold of knowledge required to qualify a class representative is low; a 19 party must be familiar with the basic elements of her claim[ ], and will be deemed inadequate only 20 if she is ‘startlingly unfamiliar’ with the case.”) (internal quotation marks and citation omitted). 21 Plaintiffs with comparable preparation and knowledge of their cases have been found adequate to 22 represent Rule 23 classes. See, e.g., Brown v. Brewer, No. 06-cv-3731, 2009 WL 1574556, at *4 23 (C.D. Cal. May 29, 2009) (finding the named plaintiff adequate when he displayed an 24 understanding of the nature of the litigation and his role as a class representative, despite not being 25 26 27 28 6 Menzies’s assertion that the declaration was drafted without meaningful input from Mijos and that he could not understand what he was signing is not supported by the record. Oppo. at 10. While Mijos admitted his English speaking abilities were limited, and relied on a translator during his deposition, he testified that he was able to read and write in English and had read his declaration before signing it. Mijos Depo. at 7:9-12; 35:10-17. 10 1 able to identify “key elements” of the case); Jones v. ConAgra Foods, Inc., No. 12-cv-01633- 2 CRB, 2014 WL 2702726, at *7 (N.D. Cal. June 13, 2014) (finding the named plaintiff in a 3 consumer mislabeling case adequate despite “not having reviewed the initial complaint or the SAC 4 before they were filed and [] having no independent understanding of [the ingredients at issue]”). 5 Accordingly, Mijos’s knowledge of the case does not prevent him from being an adequate 6 representative. Menzies’s argument relating to Mijos’s past conduct also fails. Menzies relies primarily 7 8 on two interactions Mijos had with its supervisors to attack Mijos’s credibility. One incident 9 involved a verbal exchange regarding Mijos’s alleged presence at a liquor store during a day he had called off from work. Mijos Depo. at 39:3-20. The other involved a confrontation with a 11 United States District Court Northern District of California 10 supervisor that led Mijos to punch him. Id. at 43:2-12. “Character attacks made by opponents to a 12 class certification motion and not combined with a showing of a conflict of interest have generally 13 not been sympathetically received in this district.” In re Computer Memories Sec. Litig., 111 14 F.R.D. 675, 682 (N.D. Cal. 1986). While potentially reflecting Mijos’s strained relationships with 15 his managers, these interactions are unrelated to the underlying causes of action in this case. See 16 Harris v. Vector Mktg. Corp., 753 F. Supp. 2d 996, 1015 (N.D. Cal. 2010) (“There is inadequacy 17 only where the representative’s credibility is questioned on issues directly relevant to the litigation 18 or there are confirmed examples of dishonesty, such as a criminal conviction for fraud.”). 19 Menzies claims that these interactions undermine Mijos’s credibility as a class representative, but 20 it has failed to demonstrate that Mijos has lied or misrepresented the events at issue.7 In fact, 21 Mijos appeared to testify openly about the confrontations during his deposition. See Mijos Depo. 22 at 39-43. The confrontations may go to bias, and if they are admissible the jury can evaluate them, 23 but they are not pertinent to class certification. 24 25 26 27 28 7 Menzies’s attempt to analogize to Meyer v. Portfolio Recovery Associates, LLC, 707 F.3d 1036, 1042 (9th Cir. 2012) (holding that the district did not abuse its discretion when it determined that the named plaintiff was an adequate class representative despite “convictions for offenses involving dishonesty” and his use of false names) and Harris v. Vector Marketing Corp., 753 F. Supp. 2d 996, 1015 (N.D. Cal. 2010) (finding that the named plaintiff exhibited credibility problems but determining, nonetheless, that she was an adequate representative because the lies she told were not directly relevant to her claims) are inapposite and do not support its position. 11 Considering the absence of identified conflicts of interest between the named plaintiffs and 1 2 the absent class members, the lack of injuries unique to named plaintiffs, and class counsel’s 3 ability and willingness to diligently prosecute this action, plaintiffs have fulfilled the adequacy and 4 typicality requirements of Rule 23(a). 5 II. RULE 23(b)(3) REQUIREMENTS 6 A. Predominance 7 The test for predominance under Rule 23(b)(3) asks “whether proposed classes are sufficiently cohesive to warrant adjudication by representation.” Amchem Products, Inc. v. 9 Windsor, 521 U.S. 591, 623 (1997). This analysis focusses on the relationship between common 10 and individual issues. Hanlon, 150 F.3d at 1022. To satisfy this subsection, common questions 11 United States District Court Northern District of California 8 must predominate over any questions affecting only individual members. Id. 12 While not specifically labeled as a predominance argument, Menzies contends that 13 plaintiffs have not shown that other class members have been affected by the alleged deficiencies 14 in Menzies’s wage statements. Oppo. at 22. In support of their Itemized Wage Statement class, 15 plaintiffs provide Mijos and Jimenez’s pay stubs to demonstrate that Menzies’s wage statements 16 do not include the start date of the pay period and do not reflect the total hours or rate of pay for 17 when Jimenez worked as a “Lead.” Cordero Decl., Exhs. 12, 13. Menzies has provided no 18 evidence establishing that these pay stubs are not representative of those distributed to absent class 19 members. According to deposition testimony by Talin Bazerkanian, Menzies’s corporate 20 manager, Menzies’s wage statements followed an identical format until approximately December 21 2011. Bazerkanian Depo. at 79:22-80:6; 91:21-92:7 [Cordero Decl., Exh. 7]. Because the 22 Itemized Wage Statement class period ends on January 1, 2012, the uniform pay stubs can serve as 23 a common form of proof of the presence or absence of the required information during the class 24 period. For class certification purposes, plaintiffs have sufficiently demonstrated that the question 25 of whether Menzies’s pay stubs comply with California law predominates amongst the class. 26 B. Superiority 27 Certification under Rule 23(b)(3) requires a showing that class treatment is “superior to 28 other available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 12 1 23(b)(3). Factors relevant to this determination include: “(A) the class members’ interests in 2 individually controlling the prosecution or defense of separate actions; (B) the extent and nature of 3 any litigation concerning the controversy already begun by or against class members; (C) the 4 desirability or undesirability of concentrating the litigation of the claims in the particular forum; 5 and (D) the likely difficulties in managing a class action.” Id. “A consideration of these factors 6 requires the court to focus on the efficiency and economy elements of the class action so that cases 7 allowed under [Rule 23(b)(3) ] are those that can be adjudicated most profitably on a 8 representative basis.” Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1190 (9th Cir. 2001) 9 (internal quotation marks omitted). Plaintiffs assert that there are at least three benefits to be gained from class treatment in 10 United States District Court Northern District of California 11 this case: (i) “redress for numerous aggrieved parties who could not otherwise maintain individual 12 actions;” (2) “the avoidance of the possibility of multiple actions;” and (3) “the disgorging of the 13 wrongdoer’s unjust enrichment.” Mot. at 21. They explain that in the absence of certification, 14 many current and former Menzies employees will not bring individual claims because they lack an 15 understanding that their rights have been violated, they are concerned with the costs involved in 16 suing a current or former employer, and/or may fear retaliation. Id. There is no evidence that 17 individual class members’ interests control the litigation or that class members have filed parallel 18 litigation, and Menzies makes no arguments opposing a finding of superiority. In light of this, I 19 find that class treatment is superior to other available methods to ensure fair and efficient 20 adjudication. See Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935, 946 (9th Cir. 2009) 21 (“The overarching focus remains whether trial by class representation would further the goals of 22 efficiency and judicial economy.”); see also Ambrosia v. Cogent Comm’ns, Inc., 312 F.R.D. 544, 23 558 (N.D. Cal. 2016) (finding superiority when class treatment was likely to reduce litigation costs 24 and promote efficiency relative to trying each case individually) 25 III. OBJECTIONS 26 Menzies objects to and moves to strike the entirety of the Cordero Reply Declaration, and 27 the exhibits offered therein, on the basis that it violates Civil Local Rules 7-3 and 7-4 by arguing 28 issues not presented in the motion for class certification or within plaintiffs’ reply brief. Dkt. No. 13 1 44. Additionally, Menzies specifically identifies certain paragraphs of the declaration that it 2 contends violate Federal Rule of Evidence 401. Id. Because I do not rely on the declaration or the 3 attached exhibits for the purposes of this Order, Menzies’s objection is MOOT. 8 CONCLUSION 4 5 For the reasons stated above, I GRANTED plaintiffs’ motion for class certification. 6 IT IS SO ORDERED. 7 Dated: June 13, 2016 ______________________________________ WILLIAM H. ORRICK United States District Judge 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 8 19 20 21 22 23 24 25 26 27 28 Menzies’s request for judicial notice of Exhibits 1-5 is GRANTED. Dkt. No. 41. Under Federal Rule of Evidence 201(b), a judicially noticed fact must be one not subject to reasonable dispute because it is either (1) “generally known within the trial court’s territorial jurisdiction;” or (2) “can be adequately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(d). The Court takes judicial notice of the existence of Exhibits 1 through 5 as they are primarily court records in the matter of Wright v. Menzies Aviation, Inc. et al., Los Angeles Superior Court Case No. BC441308, as well as an excerpt of a decision from the California Court of Appeal regarding an appeal from the Superior Court’s decision in Wright. See Harris v. Cnty. of Orange, 682 F.3d 1126, 1132 (9th Cir. 2012) (A court may “take judicial notice of undisputed matters of public record, including documents on file in federal or state courts.”) (internal citation omitted). The requests for judicial notice of the state court’s rulings are granted as to the existence of the opinions but not as to the truth of their contents. See Lee v. City of Los Angeles, 250 F.3d 668, 690 (9th Cir. 2001). But I reject Menzies’s argument that the Wright case creates an issue preclusion problem for plaintiffs. Issue preclusion, or collateral estoppel, is appropriate when: “(1) there was a full and fair opportunity to litigate the issue in the previous action; (2) the issue was actually litigated in that action; (3) the issue was lost as a result of a final judgment in that action; and (4) the person against whom collateral estoppel is asserted in the present action was a party or in privity with a party in the previous action.” In re Palmer, 207 F.3d 566, 568 (9th Cir. 2000). Here, the plaintiffs in this action were not a party to nor in privity with a party in the Wright suit. Therefore, issue preclusion does not apply. 14

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