Mendez v. R+L Carriers, Inc. et al

Filing 67


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1 2 IN THE UNITED STATES DISTRICT COURT 3 FOR THE NORTHERN DISTRICT OF CALIFORNIA 4 5 6 ROBERT MENDEZ, et al. Plaintiffs, 7 8 9 United States District Court For the Northern District of California 10 11 No. C 11-2478 CW ORDER DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DOCKET NO. 56) AND GRANTING IN PART PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION (DOCKET NO. 57) v. R+L CARRIERS, INC.; R&L CARRIERS SHARED SERVICES, LLC; and DOES 110, Defendants. ________________________________/ 12 13 INTRODUCTION 14 Plaintiffs Robert Mendez and Randy J. Martinez bring this 15 action on behalf of themselves and all others similarly situated, 16 alleging that their former employer, Defendants R+L Carriers, 17 Inc., R+L Carriers Shared Services, LLC, and Does 1-10, violated 18 various provisions of the California Labor Code and Business and 19 Professions Code. 20 judgment. 21 certification, for their appointment as class representatives, and 22 for appointment of class counsel. 23 September 20, 2012. 24 the papers filed by the parties, the Court DENIES Defendants’ 25 motion for partial summary judgment and GRANTS in part and DENIES 26 in part Plaintiffs’ motion for class certification. 27 28 Defendants now move for partial summary Plaintiffs oppose the motion and move for class Both motions were heard on Having considered oral argument and all of 1 BACKGROUND 2 Defendants, R+L Carriers, Inc. and R+L Carriers Shared 3 Services LLC (collectively, R+L), provide national transportation 4 and shipping services to the public, including the transport of 5 freight by motor vehicle. 6 employed more than 300 truck drivers in California since it first 7 expanded its operations into the State in 2007. 8 Decl. ¶¶ 12-13. 9 across California. United States District Court For the Northern District of California 10 Fishpaw Decl. ¶ 3. The company has Morrison Currently, it operates eleven trucking terminals Fishpaw Decl. ¶ 4. R+L employs three kinds of truck drivers: (1) “linehaul 11 drivers,” who typically work at night transporting freight 12 trailers over long distances and then returning to their starting 13 terminal with new freight that they acquired at their turnaround 14 point; (2) “city drivers,” who typically work during the day 15 making multiple pickups and deliveries to customer locations near 16 their home terminal; and (3) “combo drivers,” who do some city 17 driving (i.e., local pickups and deliveries) during the day and 18 some linehaul driving in the evenings. 19 All city driving is paid by the hour and all linehaul driving is 20 paid according to a specific distance-based formula. 21 Id. ¶¶ 2-4, 8. 22 Copsey Decl. ¶¶ 7, 10. On May 20, 2011, one of R+L’s former combo drivers, Plaintiff 23 Mendez, filed this putative class action against the company, 24 alleging various violations of California labor law. 25 Compl. ¶¶ 14-57, Docket No. 1. 26 former drivers -- two linehaul, one combo -- joined Mendez as 27 Plaintiffs and filed a First Amended Complaint (1AC). 28 Docket No. 25. On December 16, 2011, three other 1AC ¶ 9, The 1AC specifically charged R+L with failing to 2 1 provide its drivers with meal and rest breaks, compensate them at 2 the legal minimum wage and overtime rates, pay them in a timely 3 manner, and provide them with accurate wage statements as required 4 by state law. 5 Id. ¶¶ 27-57. On July 17, 2012, Plaintiffs Mendez and Martinez moved to 6 certify a class under Rule 23(b)(3) consisting of all truck 7 drivers who were employed by R+L between May 20, 2007 and the 8 present. 9 and to have their attorneys appointed class counsel. United States District Court For the Northern District of California 10 They also moved to be appointed class representatives That same day, Defendants moved for summary judgment on all 11 of Plaintiffs’ claims arising under two Labor Code provisions 12 collectively known as California’s “meal and rest break laws.” 13 The first of these provisions, section 226.7, states that 14 employers must comply with the State Industrial Welfare 15 Commission’s (IWC) rules governing meal and rest breaks. 16 Lab. Code § 226.7. 17 Order 9-2001, which requires all employers in the transportation 18 industry to provide their employees with a ten-minute rest break 19 for every four consecutive hours of work. 20 tit. 8, § 11090(12)(B). 21 mandate that employers “pay the employee one additional hour of 22 pay at the employee’s regular rate of compensation for each work 23 day that the meal or rest period is not provided.” 24 § 226.7(b); see also Cal. Code Regs. tit. 8, § 11090(12)(B) (using 25 language almost identical to section 226.7). 26 Cal. This mandate includes compliance with IWC Wage See Cal. Code Regs. The Wage Order and the statute both Cal. Lab. Code The second Labor Code provision, section 512, requires 27 employers to provide employees with a thirty-minute meal break for 28 every shift longer than five hours. 3 Cal. Lab. Code § 512(a). For 1 shifts of ten hours or more, a second meal break is also required 2 although this break may be waived “by mutual consent of the 3 employer and the employee.” 4 requirement, employers must pay employees an additional hour of 5 wages if they fail to provide a required meal break. 6 Regs. tit. 8, § 11090(11)(D). 7 8 9 United States District Court For the Northern District of California 10 Id. As with the rest break Cal. Code DISCUSSION I. Motion for Summary Judgment A. Legal Standard Summary judgment is properly granted when no genuine and 11 disputed issues of material fact remain, and when, viewing the 12 evidence most favorably to the non-moving party, the movant is 13 clearly entitled to prevail as a matter of law. 14 P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); 15 Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1288-89 (9th Cir. 16 1987). 17 Fed. R. Civ. The moving party bears the burden of showing that there is no 18 material factual dispute. 19 true the opposing party’s evidence, if supported by affidavits or 20 other evidentiary material. 21 815 F.2d at 1289. 22 in favor of the party against whom summary judgment is sought. 23 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 24 587 (1986); Intel Corp. v. Hartford Accident & Indem. Co., 952 25 F.2d 1551, 1558 (9th Cir. 1991). 26 Therefore, the court must regard as Celotex, 477 U.S. at 324; Eisenberg, The court must draw all reasonable inferences Material facts which would preclude entry of summary judgment 27 are those which, under applicable substantive law, may affect the 28 outcome of the case. The substantive law will identify which 4 1 facts are material. 2 242, 248 (1986). Anderson v. Liberty Lobby, Inc., 477 U.S. 3 B. 4 In their motion for partial summary judgment, Defendants Express Preemption 5 argue that California’s meal and rest break laws are expressly 6 preempted by the Federal Aviation Administration Authorization Act 7 (FAAA Act). 8 9 When determining the scope of preemption, courts begin with the “starting presumption that Congress does not intend to United States District Court For the Northern District of California 10 supplant state law.” 11 Shield v. Travelers Insurance Co., 514 U.S. 645, 654-55 (1995). 12 The inclusion of an express preemption provision in a federal 13 statute implies that Congress did not intend to preempt other 14 matters. 15 In every case, the scope of preemption ultimately turns on 16 Congressional intent. 17 Thus, to determine whether Congress sought to preempt California’s 18 meal and rest break laws, the Court must first examine the purpose 19 and history of the FAAA Act. 20 21 N.Y. State Conference of Blue Cross & Blue Freightliner Corp. v. Myrick, 514 U.S. 280, 288 (1995). 1. Blue Cross & Blue Shield, 514 U.S. at 655. Purpose & History of the FAAA Act Congress enacted the FAAA Act in 1994 as part of its ongoing 22 effort to deregulate the interstate trucking industry. 23 No. 103-305, 108 Stat. 1569 (codified as amended in scattered 24 sections of 49 U.S.C.); see also Motor Carrier Act of 1980, Pub. 25 L. No. 96-296, 94 Stat. 793 (codified as amended in scattered 26 sections of 49 U.S.C.). 27 bring greater uniformity to state regulation of motor carriers and Pub. L. The Act was specifically intended to 28 5 1 to “create a completely level playing field” between air carriers 2 and motor carriers. 3 H.R. Conf. Rep. No. 103-677 (1994), at 85. In order to achieve these goals, Congress expressly sought to 4 preempt certain kinds of state regulations governing motor 5 carriers. 6 language from the Airline Deregulation Act of 1978 (ADA), 7 in relevant part: 8 9 United States District Court For the Northern District of California 10 11 12 The Act’s preemption clause, which borrows much of its 1 states [A] State, political subdivision of a State, or political authority of 2 or more States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier (other than a carrier affiliated with a direct air carrier . . .) or any motor private carrier, broker, or freight forwarder with respect to the transportation of property. 13 49 U.S.C. § 14501(c)(1). As the House Conference Report for the 14 Act notes, the “[t]ypical forms of regulation” targeted by this 15 clause “include entry controls, tariff filing and price 16 regulation, and types of commodities carried.” H.R. Conf. Rep. 17 No. 103-677 (1994), at 86. The Report does not specifically 18 discuss whether the Act was intended to preempt generally 19 applicable employment laws. 20 2. Legal Standard for FAAA Act Preemption 21 The Ninth Circuit recently articulated a three-part test for 22 “determining whether § 14501(c)(1) of the FAAA Act preempts State 23 action.” American Trucking Ass’ns, Inc. v. City of Los Angeles, 24 25 26 27 28 1 Cf. 49 U.S.C. § 41713(b)(4) (“A State . . . may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier or carrier affiliated with a direct air carrier through common controlling ownership when such carrier is transporting property by aircraft or by motor vehicle.”). 6 1 660 F.3d 384, 395-96 (9th Cir. 2011) (ATA V). 2 part of that test, the court must determine whether the challenged 3 state provision “relate[s] to a price, route, or service of a 4 motor carrier.” 5 determination, the court “must examine the actual or likely effect 6 of [the] State’s action” on the motor carrier industry. 7 660 F.3d at 396. 8 has only an “indirect” effect on motor carriers, the impact of the 9 provision must ultimately be more than “tenuous, remote, or 49 U.S.C. § 14501(c)(1). Under the first In making this ATA V, Although a provision may be preempted even if it United States District Court For the Northern District of California 10 peripheral.” 11 (2008). 12 provision, directly or indirectly, ‘binds the . . . carrier to a 13 particular price, route or service and thereby interferes with 14 competitive market forces within the . . . industry.’” 15 F.3d at 397 (citations omitted). 16 Rowe v. N.H. Transp. Assoc., 552 U.S. 364, 370-71 In close cases, the critical inquiry is “whether the ATA V, 660 If the court finds that the provision does not “relate to” a 17 motor carrier’s pricing, routes, or services, then the inquiry 18 ends and the provision is not preempted by the FAAA Act. 19 395. 20 to” pricing, routes, or services, it must proceed to the second 21 part of the test to determine whether the provision falls within 22 the “market participant” exception to FAAA Act preemption. 23 395, 398 (“The FAAA Act ‘preempt[s] only [S]tate regulation, and 24 not actions a [S]tate takes as a market participant.’” (citations 25 omitted)). 26 state law was “enacted pursuant to the State’s regulation of the 27 market, rather than the State’s participation in the market in a 28 proprietary capacity.” Id. at If, however, the court finds that the provision does “relate Id. at Here, the court must consider whether the challenged Id. (emphasis added). 7 If the provision 1 was enacted pursuant to the state’s participation in -- rather 2 than regulation of -- the motor carrier market, then it is not 3 preempted by the FAAA Act. Id. 4 Finally, if the provision is not shielded from preemption by 5 either of the first two parts of the test, the court must proceed 6 to the third part of the test. 7 court must determine whether any of the express exemptions 8 codified in § 14501(c)(2) of the FAAA Act apply to the challenged 9 state law provision. Id. Id. at 395. At this stage, the The most important of these is the United States District Court For the Northern District of California 10 Act’s “safety exemption,” which specifically protects “the safety 11 regulatory authority of a State with respect to motor vehicles.” 12 49 U.S.C. § 14501(c)(2)(A). 13 purpose are not preempted by the FAAA Act. 14 State regulations passed for this In sum, a state regulation will be preempted by the FAAA Act 15 only if it is “related to” motor carrier prices, routes, or 16 services and it does not fall under the market participant 17 exception or an express statutory exemption. 18 3. 19 a. 20 21 22 23 24 25 26 27 28 Analysis of FAAA Act Preemption “Related to” Motor Carrier Prices, Routes, or Services Both of the Labor Code sections that Defendants contend are preempted here -- sections 226.7 and 512 -- apply broadly to all employers in California. Neither provision specifically refers to the motor carrier industry or even remotely resembles the “[t]ypical forms of regulation” that the House Conference Report originally identified as targets of the FAAA Act’s preemption clause. See H.R. Conf. Rep. No. 103-677 (1994), at 86 (listing state “entry controls, tariff filing and price regulation, and 8 1 [regulation of] types of commodities carried” as justifications 2 for the Act’s preemption clause). 3 appear to “relate to” motor carrier prices, routes, or services 4 for the purposes of FAAA Act preemption. 5 of Am. v. City of S.F., 992 F. Supp. 1149, 1183 (N.D. Cal. 1998) 6 (“Congress did not . . . through the [ADA’s preemption clause], 7 exempt the airlines from generally applicable employment laws.”), 8 aff’d, 266 F.3d 1064, 1079 (9th Cir. 2001). 9 Thus, these provisions do not Cf. Air Transport Ass’n California’s meal and rest break laws also differ United States District Court For the Northern District of California 10 significantly from the preempted statutes and regulations that 11 Defendants identify in their motion. 12 provisions that the Supreme Court found preempted by the FAAA Act 13 in Rowe, for instance, sought to regulate tobacco through its 14 shipment and delivery processes. 15 provisions effectively required motor carriers transporting 16 tobacco products to offer a new kind of delivery service (known as 17 “recipient-verification”), id. at 368-69, while the other imposed 18 new civil penalties on carriers who transported tobacco to 19 unlicensed retailers (thereby requiring the carriers to examine 20 every package they ship and to monitor constantly which Maine 21 retailers have tobacco licenses), id. at 369. 22 each of these requirements had a “direct connection with motor 23 carrier services,” the Rowe Court held that both were preempted by 24 the FAAA Act. 25 California’s meal and rest break laws do not uniquely burden motor 26 carriers in the same way, Rowe offers little support to Defendants 27 here. The two Maine statutory 552 U.S. at 368-70. Id. at 371 (citations omitted). 28 9 One of the Recognizing that Because 1 Defendants’ reliance on American Trucking Association v. City 2 of Los Angeles, 559 F.3d 1046 (9th Cir. 2009) (ATA II), is 3 similarly misplaced. 4 series of “Drayage Services Concession Agreements” between the 5 cities of Los Angeles and Long Beach and local motor carriers were 6 preempted by the FAAA Act. 7 Concession Agreements had a direct impact on the motor carrier 8 industry because they created new rules governing the equipment, 9 licensing, and record-keeping practices of all motor carriers 2 In that case, the Ninth Circuit held that a Id. at 1053. The court recognized United States District Court For the Northern District of California 10 using the ports of Long Beach and Los Angeles. 11 Concession agreements relate to prices, routes or services of 12 motor carriers can hardly be doubted.”). 13 short, were not simply affected indirectly by the new 14 regulations -- they were the principal object of those 15 regulations. 16 See id. (“That the Motor carriers, in California’s meal and rest break laws, in contrast, apply to 17 all employers in California and do not “aim directly at the 18 carriage of goods.” 19 provisions cannot be said to relate directly to motor carriers’ 20 prices, routes, or services. 21 819 F. Supp. 2d 1109, 1116 (S.D. Cal. 2011) (“The preemption 22 language of the FAAA Act contained in Section 14501 does not, on 23 its face, explicitly encompass state regulation of meal and rest 24 breaks.”), appeal docketed No. 12-55705 (9th Cir. Apr. 19, 2012). Rowe, 552 U.S. at 376. As such, these See Dilts v. Penske Logistics LLC, 25 26 27 28 2 Defendants refer to this case as “ATA I” in their motion rather than “ATA II.” Instead of following Defendants’ naming convention, the Court will refer to the case as “ATA II,” following the convention adopted by the Ninth Circuit in ATA V, 660 F.3d at 394-95. 10 1 The Court must therefore focus instead on whether these provisions 2 affect carriers indirectly. 3 that preemption “may occur even if a state law’s effect on rates, 4 routes or services ‘is only indirect’” (citations omitted)). 5 The Ninth Circuit addressed a similar question in See Rowe, 552 U.S. at 370 (noting 6 Californians for Safe & Competitive Dump Truck Transportation v. 7 Mendonca, 152 F.3d 1184, 1185 (9th Cir. 1998). 8 held that California’s Prevailing Wage Law (CPWL), Cal. Lab. 9 Code §§ 1770-80, another generally applicable provision of the There, the court United States District Court For the Northern District of California 10 Labor Code, was not “related to” motor carrier rates, routes, or 11 services. 12 “frustrate[] the purpose of deregulation by acutely interfering 13 with the forces of competition,” it held that the law was not 14 preempted by the FAAA Act. 15 152 F.3d at 1189-90. Noting that the CPWL did not Id. at 1189. Although the Ninth Circuit has never specifically addressed 16 whether the FAAA Act preempts California’s meal and rest break 17 laws, Defendants cite four cases from other California federal 18 district courts that have recently confronted this question: 19 Campbell v. Vitran Express, Inc., 2012 WL 2317233 (C.D. Cal.); 20 Aguiar v. Cal. Sierra Express, 2012 WL 1593202 (E.D. Cal.); 21 Esquivel v. Vistar Corp., 2012 WL 516094 (C.D. Cal.); and Dilts, 22 819 F. Supp. 2d at 1114-23. 23 held that the FAAA Act preempts California’s meal and rest break 24 laws. In each of these cases, the court Plaintiffs cite an earlier decision from a state superior 25 26 27 28 11 1 court that reached the opposite conclusion. 2 JCCP CJC-07-004520 (S.F. Super. Ct. Feb. 19, 2010). 3 Cemex Wage Cases, 3 Nonetheless, the decided cases offer only limited guidance 4 here because none of them recognizes the full flexibility that 5 California’s meal and rest break laws offer employers. 6 instance, the decisions fail to address the fact that an employer 7 may comply with section 226.7’s rest break requirement by simply 8 paying its employees an additional hour of wages. 9 § 226.7(b); Cal. Code. Regs. tit. 8, § 11090(12)(B). 4 For Cal. Lab. Code This option United States District Court For the Northern District of California 10 allows motor carriers to satisfy the rest break requirement 11 without altering their routes or services whatsoever. 12 the additional wages might have a slight impact on a motor 13 carrier’s prices, this impact would not be large enough to raise 14 preemption concerns. 15 generally applicable wage protections can affect a motor carrier’s 16 prices without falling under the FAAA Act’s preemptive scope. 17 152 F.3d at 1189 (holding that even if the CPWL raised a motor 18 carrier’s prices by twenty-five percent, the effect would still be 19 considered “no more than indirect, remote, and tenuous” for the 20 purposes of determining FAAA Act preemption). 21 alternative thus significantly reduces section 226.7’s impact on 22 23 24 25 26 27 28 3 Although As the Ninth Circuit recognized in Mendonca, The wage Other courts have also declined to find California’s meal and rest break laws preempted by the FAAA Act. See Cardenas v. McLane FoodService, Inc., 796 F. Supp. 2d 1246, 1254-56 (C.D. Cal.); Reinhardt v. Gemini Motor Transport, 2012 WL 1435008, at *5-*6 (E.D. Cal.). Those cases, however, did not treat the preemption issue as a question of law so their reasoning is of limited applicability here. 4 Aguiar and Campbell, for instance, do not mention the wage alternative at all. Although Dilts and Esquivel both briefly acknowledge that this option is available, each dismisses it as not viable without explanation. 12 1 motor carrier prices, routes, and services and undercuts the 2 reasoning of the four cases that Defendants cite, all of which 3 assume that section 226.7 inflexibly requires motor carriers to 4 provide drivers with numerous breaks throughout the day. 5 Dilts, 819 F. Supp. 2d at 1118 (“The fairly rigid meal and break 6 requirements impact the types and lengths of routes that are 7 feasible.”). 8 9 Cf. Because of this wage alternative, the only breaks that motor carriers must actually provide to drivers are the less-frequent United States District Court For the Northern District of California 10 meal breaks. 11 be partially waived at the employee’s discretion. 12 § 512(a). 13 duty” meal periods when “the nature of the work” makes off-duty 14 meal periods infeasible and the employee consents. 15 Regs. tit. 8, § 11090(11)(C). 16 wage alternative, these waivers and on-duty meal period options 17 could reduce the overall burden on motor carriers to providing a 18 single thirty-minute break during any six- to twelve-hour shift. 19 The meal and rest break laws therefore offer motor carriers 20 significantly more flexibility than Defendants and other courts 21 have recognized. 22 And California law allows even that requirement to Cal. Lab. Code State regulations also permit employers to provide “on- Cal. Code. When combined with section 226.7’s 5 In light of this flexibility, it is unlikely that 23 California’s meal and rest break provisions would rigidly “bind” 24 motor carriers to particular rates, routes, or services. 25 26 27 28 5 This single-break requirement would impose only minimal burdens on motor carriers because -- under new federal regulations that take effect in June 2013 -- drivers will be required to take thirty-minute breaks anyway on shifts longer than eight hours. 49 C.F.R. § 395.3(a)(3). 13 1 Accordingly, these provisions do not “relate to” motor carrier 2 rates, routes, or services and are not preempted by the FAAA Act. 3 b. 4 “Market Participant” Exception and “Safety” Exemption Because California’s meal and rest break laws have only a 5 tenuous and peripheral effect on motor carriers’ prices, routes, 6 or services, the Court need not address whether these provisions 7 qualify for the “market participant” exception or “safety” 8 exemptions. 9 C. Implied Preemption 10 United States District Court For the Northern District of California In addition to arguing that the meal and rest break laws are 11 expressly preempted by the FAAA Act, Defendants contend that these 12 laws are impliedly preempted by the Federal Motor Carrier Safety 13 Administration’s (FMCSA) “Hours of Service” regulations, 49 C.F.R. 14 § 395.3.6 15 Absent explicit preemptive language, there are two types of 16 implied preemption: field preemption and conflict preemption. 17 Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 372 (2000). 18 Field preemption occurs where Congress has entirely displaced 19 state law in a specific field of regulation while conflict 20 preemption occurs when state legislation “actually conflicts with 21 federal law.” Pac. Gas & Elec. Co. v. State Energy Res. 22 Conservation & Dev. Comm’n, 461 U.S. 190, 204 (1983). Here, 23 24 6 25 26 27 28 Defendants fail to identify any specific provisions of the Code of Federal Regulations that purportedly conflict with California law. The Court therefore assumes that Defendants’ implied preemption argument is based on 49 C.F.R. § 395.3, a regulation entitled, “Maximum driving time for property-carrying vehicles,” which appears to be the “‘Hours of Service’ regulation” that Defendants discuss in their briefs. 14 1 Defendants contend that California’s meal and rest break 2 requirements conflict with FMCSA regulations. 3 preemption, the Court’s analysis begins by examining Congressional 4 intent. 5 98 (1992). As with express Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 96, 6 1. 7 Purpose & History of FMCSA’s “Hours of Service” Regulations Congress created the FMCSA as part of the Motor Carrier 8 Safety Improvement Act of 1999, §§ 101-07, Pub. L. No. 106–159, 9 113 Stat. 1748, and housed it within the Department of 10 United States District Court For the Northern District of California Transportation. The agency was created, in part, as a response to 11 what Congress then viewed as the Department’s failure to pass 12 adequate rules regulating motor carrier drivers’ “hours of 13 service.” Id. § 3(3). The FMCSA subsequently promulgated rules 14 governing the number of hours that these drivers may work, how 15 much time they must be given between shifts, and when they must be 16 given rest breaks. 49 C.F.R. §§ 395.1-395.3. As noted above, a 17 new rule, set to take effect in June 2013, will require motor 18 carriers to provide drivers with at least one thirty-minute break 19 for any shift over eight hours in length. Id. § 395.3(a)(3). 20 Nowhere does this or any other FMCSA rule state that motor 21 carriers are exempt from complying with generally applicable state 22 employment laws that require employers to provide meal and rest 23 breaks. 24 25 26 2. Preemptive Scope of FMCSA’s “Hours of Service” Regulations California’s meal and rest break provisions do not impede or 27 undermine the FMCSA’s effort to enforce any of its “Hours of 28 Service” regulations. The provisions are not only consistent with 15 1 the FMCSA’s regulations but also entirely compatible with the 2 federal legislation that gave rise to those regulations. 3 U.S.C. § 31502(b) (authorizing the Secretary of Transportation to 4 establish maximum hours-of-service standards for motor carrier 5 drivers). 6 See 49 What’s more, the FMCSA itself has explicitly rejected 7 Defendants’ preemption argument. 8 “to declare [any] incompatible State law or regulation pertaining 9 to commercial motor vehicle safety unenforceable in interstate Federal law empowers the agency United States District Court For the Northern District of California 10 commerce.” 11 (“A State may not enforce a State law or regulation on commercial 12 motor vehicle safety that the Secretary of Transportation decides 13 under this section may not be enforced.”). 14 used this authority to deny a petition by several motor carriers 15 who asked the agency to find California’s meal and rest break laws 16 preempted. 17 Meal Breaks and Rest Breaks for Commercial Motor Vehicle Drivers, 18 73 Fed. Reg. 79,204 (FMCSA Dec. 18, 2008). 19 rejected the motor carriers’ “far-reaching argument that FMCSA can 20 and should preempt the California statutes and rules on wages, 21 hours, and working conditions which prevent carriers from 22 maximizing their employees’ driving and on-duty time.” 23 79,206. 24 49 C.F.R. § 355.25(c); see also 49 U.S.C. § 31141(a) In 2008, the FMCSA Petition for Preemption of California Regulations on The agency roundly Id. at Because Defendants cannot identify any legitimate conflict 25 with federal law -- and fail to cite even a single case to bolster 26 their argument -- the Court finds that California’s meal and rest 27 break laws are not preempted by the FMCSA regulations. 28 16 1 II. Motion for Class Certification 2 A. 3 Plaintiffs argue that Defendants employ several uniform Defendants’ Statewide Policies & Practices 4 statewide policies and practices that render the issues in this 5 case appropriate for class treatment. 6 point to Defendants’ meal and rest break practices, their 7 “breakdown” pay policy, the formula that they use to calculate 8 linehaul drivers’ pay, and the timekeeping system they use to log 9 city drivers’ hours. United States District Court For the Northern District of California 10 11 1. Specifically, Plaintiffs Each of these policies is detailed below. Meal and Rest Break Policy Since 2007, Defendants have issued a handbook to all of their 12 California employees describing the company’s formal policy for 13 providing meal and rest breaks to employees. 14 16:10; Henderson Decl., Ex. 1. 15 this handbook to every California driver, they do not expect or 16 require drivers to abide by the handbook’s official meal and rest 17 break policy because, in practice, drivers’ schedules make it 18 difficult to adhere to the policy. 19 222:13-223:20. 20 policies set by dispatchers and managers at every terminal. 21 Fernandez Dep. 79:1-:11; Fishpaw Dep. 222:13-223:20, 224:4-:10; 22 Hill Dep. 68:19-69:14, 151:17-152:9. 23 Fishpaw Dep. 15:19- Although Defendants distribute Fishpaw Dep. 102:17-103:1, Instead, drivers follow the informal break While Plaintiffs acknowledge that Defendants do not impose 24 their official, uniform break policy on drivers, they argue that 25 Defendants nevertheless follow several unwritten policies that 26 effectively discourage drivers across the State from taking 27 breaks. 28 at various terminals to show that city drivers often feel 17 They have submitted declarations from dozens of drivers 1 pressured to skip breaks because of their busy delivery schedules. 2 Childs Decl. ¶ 16; Johnson Decl. ¶ 17; Tantzen Decl. ¶ 6. 3 also highlight Defendants’ scoring system for ranking city drivers 4 based on the number of pickups and deliveries they make each week. 5 Fishpaw Dep. 240:3-243:25. 6 these and other informal practices amount to a statewide policy of 7 discouraging both city and linehaul drivers from taking breaks. 8 2. They Taken together, Plaintiffs argue, Linehaul Driver Pay Formula Defendants use a special distance-based formula, known as 10 United States District Court For the Northern District of California 9 “piece-rate compensation,” to pay their drivers for every linehaul 11 assignment they complete. 12 Decl. ¶ 8. 13 driving distance is first divided by fifty miles per hour in order 14 to calculate the rough number of hours a driver spent on the road. 15 Henderson Decl., Ex. 8; Copsey Decl. ¶ 8. 16 to that figure to account for any non-driving work that the driver 17 may have performed during the trip, such as transferring freight 18 or waiting for another trailer. 19 Decl. ¶ 8. 20 driver’s hourly rate -- which is typically assigned to a driver 21 based on seniority -- to calculate the driver’s total compensation 22 for that trip.7 23 Henderson Decl., Ex. 8; Copsey Under that formula, the driver’s total estimated One hour is then added Henderson Decl., Ex. 8; Copsey Finally, that number is multiplied by the individual Henderson Decl., Ex. 8; Copsey Decl. ¶ 8. If a driver believes that this formula has failed to 24 compensate him or her for a particular trip, he or she may submit 25 “notes and additional documentation” to request additional pay. 26 27 28 7 The formula can be represented numerically as follows: Linehaul Pay = (([Estimated Distance] ÷ 50 mph) + 1 hour) x [Hourly Rate]. 18 1 Copsey Decl. ¶ 12. 2 supervisor and by Defendants’ national payroll department to 3 determine whether the driver is entitled to additional pay. 4 Fishpaw Dep. 149:15-:22. 5 drivers are fully aware of this “extra pay” policy. 6 149:15-:22. 7 8 9 3. Those notes must then be reviewed by a The parties dispute whether or not Fishpaw Dep. “Breakdown” Pay Policy When a linehaul driver’s truck breaks down during a trip, the driver is not compensated for the first two hours that he or she 10 United States District Court For the Northern District of California Id.; is delayed during that breakdown. 11 the breakdown lasts less than two hours, the driver is paid 12 according to the standard linehaul pay formula without any 13 adjustment. 14 however, the driver is paid at the hourly rate for whatever 15 additional time is required to repair the breakdown. 16 17 Id. 4. Copsey Decl. ¶ 11. Rather, if If the breakdown lasts more than two hours, Id. Rounding System for City Driving Unlike linehaul drivers, city drivers are paid by the hour. 18 Fishpaw Dep. 65:14-66:23. 19 by a city driver, Defendants use a timekeeping system that 20 sometimes rounds a driver’s pay to the nearest hour. 21 Decl., Ex. 11. 22 of schedule, for instance, the system will automatically round his 23 or her start time up to the scheduled start time (thus, deducting 24 the additional seven minutes or less that the driver would have 25 logged had there been no rounding). 26 rounding, at the end of every week, the system rounds the driver’s 27 total number of hours worked to the nearest quarter hour. To calculate the number of hours worked Henderson If a driver clocks in seven minutes or less ahead 28 19 Id. In addition to the daily Id. 1 B. 2 Plaintiffs seeking to represent a class must satisfy the Legal Standard for Class Certification 3 threshold requirements of Rule 23(a) as well as the requirements 4 for certification under one of the subsections of Rule 23(b). 5 Rule 23(a) provides that a case is appropriate for certification 6 as a class action if 7 8 9 (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; United States District Court For the Northern District of California 10 11 12 13 (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. 14 Fed. R. Civ. P. 23(a). 15 Plaintiffs must also establish that one of the subsections of 16 Rule 23(b) is met. In the instant case, Plaintiffs seek 17 certification under subsection (b)(3), which permits certification 18 where common questions of law and fact “predominate over any 19 questions affecting only individual members” and class resolution 20 is “superior to other available methods for the fair and efficient 21 adjudication of the controversy.” Fed. R. Civ. P. 23(b)(3). 22 These requirements are intended “to cover cases ‘in which a class 23 action would achieve economies of time, effort, and 24 expense . . . without sacrificing procedural fairness or bringing 25 about other undesirable results.’” Amchem Prods., Inc. v. 26 Windsor, 521 U.S. 591, 615 (1997) (quoting Fed. R. Civ. 27 P. 23(b)(3) Adv. Comm. Notes to 1966 Amendment). 28 20 1 Plaintiffs seeking class certification bear the burden of 2 demonstrating that each element of Rule 23 is satisfied; a 3 district court may certify a class only if it determines that the 4 plaintiffs have borne their burden. 5 Falcon, 457 U.S. 147, 158-61 (1982); Doninger v. Pac. Nw. Bell, 6 Inc., 564 F.2d 1304, 1308 (9th Cir. 1977). 7 must take the substantive allegations of the complaint as true. 8 Blackie v. Barrack, 524 F.2d 891, 901 (9th Cir. 1975). 9 the court must conduct a “‘rigorous analysis,’” which may require Gen. Tel. Co. of Sw. v. In general, the court However, United States District Court For the Northern District of California 10 it “‘to probe behind the pleadings before coming to rest on the 11 certification question.’” 12 Ct. 2541, 2551 (2011) (quoting Falcon, 457 U.S. at 160-61). 13 “Frequently that ‘rigorous analysis’ will entail some overlap with 14 the merits of the plaintiff’s underlying claim. 15 helped.” 16 certification is proper, the court may consider material beyond 17 the pleadings and require supplemental evidentiary submissions by 18 the parties. 19 factual disputes in the context of a motion for class 20 certification, district courts must consider ‘the persuasiveness 21 of the evidence presented.’” 22 WL 10381, at *2 (C.D. Cal.) (quoting Ellis v. Costco Wholesale 23 Corp., 657 F.3d 970, 982 (9th Cir. 2011)). 24 the district court’s discretion whether a class should be 25 certified. 26 Burkhalter Travel Agency v. MacFarms Int’l, Inc., 141 F.R.D. 144, 27 152 (N.D. Cal. 1991). Wal-Mart Stores, Inc. v. Dukes, 131 S. Dukes, 131 S. Ct. at 2551. That cannot be To satisfy itself that class Blackie, 524 F.2d at 901 n.17. “When resolving such Aburto v. Verizon Cal., Inc., 2012 Ultimately, it is in Molski v. Gleich, 318 F.3d 937, 946 (9th Cir. 2003); 28 21 1 C. 2 Rule 23(a) Prerequisites 1. 3 Numerosity Plaintiffs seek to certify a class of at least 345 current 4 and former R+L drivers. 5 not dispute that Plaintiffs have satisfied the numerosity 6 requirement. 7 satisfied this prerequisite. 8 Defendants do Accordingly, the Court finds that Plaintiffs have 2. 9 Morrison Decl. ¶¶ 12-13. Commonality Rule 23 contains two related commonality provisions. Rule United States District Court For the Northern District of California 10 23(a)(2) requires that there be “questions of law or fact common 11 to the class.” 12 requires that such common questions predominate over individual 13 ones. 14 Fed. R. Civ. P. 23(a)(2). Rule 23(b)(3), in turn, The Ninth Circuit has explained that Rule 23(a)(2) does not 15 preclude class certification if fewer than all questions of law or 16 fact are common to the class: 17 18 19 20 21 22 23 The commonality preconditions of Rule 23(a)(2) are less rigorous than the companion requirements of Rule 23(b)(3). Indeed, Rule 23(a)(2) has been construed permissively. All questions of fact and law need not be common to satisfy the rule. The existence of shared legal issues with divergent factual predicates is sufficient, as is a common core of salient facts coupled with disparate legal remedies within the class. Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998). Here, Plaintiffs have identified several common questions of 24 law and fact. 25 formula undercompensates linehaul drivers, whether Defendants’ 26 timekeeping system undercompensates city drivers, whether 27 Defendants’ breakdown policy complies with state law, and whether These include: whether Defendants’ linehaul pay 28 22 1 the wage statements Defendants issue to drivers are accurate. 2 of these questions require an inquiry into specific policies and 3 practices that affect Defendants’ drivers across California. 4 Courts have granted class certification to answer questions 5 similar to these in other cases. 6 Logistics LLC, 267 F.R.D. 625, 632-33 (S.D. Cal. 2010) (finding 7 that common questions about trucking company’s statewide pay 8 policies and employment practices were amenable to class 9 treatment). United States District Court For the Northern District of California 10 All See, e.g., Dilts v. Penske Rather than dispute that these questions are amenable to 11 class treatment, Defendants argue that Plaintiffs cannot satisfy 12 the commonality requirement because they fail to provide 13 sufficient evidentiary support for their allegations. 14 argument ignores the ample evidentiary record that Plaintiffs have 15 assembled to support their claims here. 16 provide numerous declarations and deposition transcripts to show 17 that several of Defendants’ statewide policies and practices 18 uniformly affect all members of the putative class. 19 Henderson Decl., Ex. 8 (outlining linehaul pay formula), Ex. 11 20 (describing timekeeping policies); see also Pls.’ Appendix of 21 Declarations from Putative Class Members 20-126 (“Pls.’ App.”) 22 (providing declarations from over forty former drivers recounting 23 similar work experiences). 24 This Specifically, Plaintiffs See, e.g., The detailed nature of Plaintiffs’ claims distinguishes this 25 case from Dukes, which Defendants cite for the proposition that 26 commonality requires a heightened evidentiary showing by the 27 plaintiff. 28 company’s lack of centralized pay policy was unlawful . . . . 23 Whereas “Dukes involved the allegation that the 1 [h]ere, by contrast, Plaintiffs allege a specific set of 2 [unlawful] practices.” 3 Co., 2011 WL 4017967, at *8 (N.D. Cal.) (finding commonality 4 because plaintiff-employees identified a particular employment 5 policy that “applie[d] to all the members of the class”). 6 the specificity of Plaintiffs’ allegations and the weight of their 7 supporting evidence, the Court finds that Plaintiffs have 8 satisfied the commonality prerequisite. 9 United States District Court For the Northern District of California 10 3. Delagarza v. Tesoro Refining & Marketing Given Typicality Rule 23(a)(3)’s typicality requirement provides that a “class 11 representative must be part of the class and possess the same 12 interest and suffer the same injury as the class members.” 13 Falcon, 457 U.S. at 156 (quoting E. Tex. Motor Freight Sys., Inc. 14 v. Rodriguez, 431 U.S. 395, 403 (1977)) (internal quotation marks 15 omitted). 16 interest of the named representative aligns with the interests of 17 the class.” Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th 18 Cir. 1992). Rule 23(a)(3) is satisfied where the named plaintiffs 19 have the same or similar injury as the unnamed class members, the 20 action is based on conduct which is not unique to the named 21 plaintiffs, and other class members have been injured by the same 22 course of conduct. 23 however, “where a putative class representative is subject to 24 unique defenses which threaten to become the focus of the 25 litigation.” 26 Lynch, Pierce, Fenner & Smith, Inc., 903 F.2d 176, 180 (2d Cir. 27 1990). The purpose of the requirement is “to assure that the Id. Class certification is inappropriate, Id. (quoting Gary Plastic Packaging Corp. v. Merrill 28 24 1 In this case, as noted above, Plaintiffs Mendez and Martinez 2 allege injuries based on a variety of Defendants’ statewide 3 employment practices. 4 suffered as a result of these formal policies and practices would 5 likely be typical of those suffered by Defendants’ other 6 California drivers, all of whom were subject to the same policies 7 and practices. 8 they might raise to Plaintiffs’ claims based on these official 9 statewide policies. United States District Court For the Northern District of California 10 Any injuries that Mendez and Martinez Defendants do not identify any unique defenses Defendants do, however, identify possible defenses to 11 Plaintiffs’ meal and rest break claims. 12 have no formal, statewide policy for providing truck drivers with 13 timely meal and rest breaks and that, as a result, break policies 14 can vary from terminal to terminal. 15 therefore, potentially subject to unique break policies set by the 16 dispatchers and managers at their respective terminals. 17 of variation in location-specific workplace policies can sometimes 18 serve as a barrier to certification in large employment class 19 actions by casting doubt on the representativeness of the named 20 plaintiff’s injuries. 21 (“Since different affirmative action programs, and thus possibly 22 different patterns and practices, exist in each establishment, 23 appellants would have considerable difficulty in adequately 24 representing class members from the other three . . . 25 establishments [in a Title VII suit].”). 26 satisfy the typicality prerequisite for their meal and rest break 27 claims, Plaintiffs must show that Defendants’ informal break 28 policies are consistent across different terminals. 25 Defendants note that they Mendez and Martinez were, This type See, e.g., Doninger, 564 F.2d at 1311 Thus, in order to 1 Plaintiffs have made this showing with respect to city 2 drivers. 3 city drivers who recount facing similar pressures to skip breaks 4 despite working with different dispatchers at various terminals 5 across California. 6 Plaintiffs’ claims that Defendants have a common practice of 7 overloading city drivers’ schedules to such an extent that drivers 8 are ultimately discouraged from taking breaks. 9 also highlight Defendants’ system for ranking city drivers by They offer declarations from more than thirty former Pls.’ App. 20-185. These declarations support Id. Plaintiffs United States District Court For the Northern District of California 10 delivery speed as further evidence that these drivers are 11 pressured to skip breaks. 12 these practices do not represent Defendants’ official company 13 policy, Plaintiffs have shown that they are prevalent enough among 14 different terminals to satisfy Rule 23’s typicality prerequisite 15 for city drivers. 16 1278301, at *5 (N.D. Cal.) (finding Rule 23(a) typicality 17 satisfied because “the proposed representatives claim to have been 18 subjected to the same illegal practices regarding meal and break 19 periods as the proposed class” of truck drivers even though class 20 members worked at different facilities). 21 Fishpaw Dep. 240:3-243:25. Even if See Pina v. Con-Way Freight, Inc., 2012 WL Plaintiffs have not, however, made this showing with respect 22 to linehaul drivers. 23 not closely monitored by dispatchers during their runs nor are 24 they subject to any kind of ranking system. 25 Moreover, because linehaul drivers typically stop less frequently 26 during runs than city drivers, they do not face the same 27 challenges in finding a time or place to take a break. 28 critical differences between city driving and linehaul driving 26 Unlike city drivers, linehaul drivers are See Mantz Decl. ¶ 9. Id. These 1 require Plaintiffs to differentiate more clearly between the 2 policies and practices that discourage each group of drivers from 3 taking breaks. 4 allegations focus almost exclusively on the practices that 5 discourage city drivers from taking breaks -- specifically, 6 overloaded delivery schedules and delivery-speed rankings. 7 Instead, however, Plaintiffs’ evidence and Although Plaintiffs offer some evidence that linehaul drivers 8 are discouraged from taking breaks, that evidence is ultimately 9 unpersuasive. Plaintiffs rely primarily on an analysis of United States District Court For the Northern District of California 10 nineteen daily driver logs that purport to show how rarely 11 Defendants’ linehaul drivers take breaks. 12 Decl. ¶¶ 3-4. 13 nineteen drivers constitute a representative cross-section of all 14 linehaul drivers in California or that these drivers were forced 15 to skip breaks for similar reasons. 16 the analysis never establishes that the logs are supposed to 17 document linehaul drivers’ meal and rest breaks in the first 18 place. 19 reliable evidence of missed breaks at all, See Nutten But the analysis fails to establish that these Even more problematically, It is not clear whether these driver logs actually provide 8 which is why courts in 20 8 21 22 23 24 25 26 27 28 For instance, Plaintiffs’ argument that the logs are supposed to document meal breaks relies on a California motor vehicle regulation that requires linehaul drivers to record “off duty” time, “sleeper berth[s],” and non-driving time for every trip. See Cal. Code Regs. tit. 13, § 1213(l). But the regulation does not require drivers to record meal breaks. Even the sample driver log included in the regulation lacks a designated space to record meal or rest breaks. If anything, the sample log suggests that a driver’s “lunch” break should simply be recorded as generic “off duty” time. See id. Because Plaintiffs’ analysis does not provide a comprehensive accounting of drivers’ off-duty time -- and fails to provide copies of the actual driver logs themselves -- the analysis cannot establish that the driver logs provide reliable documentation of missed meal breaks. 27 1 other cases have expressly rejected driver logs as proof of Rule 2 23 typicality. 3 05266, Docket No. 98, at 5-6 (C.D. Cal. 2011) (concluding that 4 “[w]ith regard to Plaintiffs’ missed rest break claims, . . . . 5 the absence of log entries showing rest breaks means nothing” 6 because drivers are not required to document these breaks on their 7 logs). 8 discourage linehaul drivers across California from taking breaks, 9 Plaintiffs cannot show that their linehaul driving experiences United States District Court For the Northern District of California 10 11 See, e.g., Jasper v. C.R. England, No. 08-cv- Without stronger evidence that Defendants actively were typical. The Court therefore finds that Plaintiff Martinez, whose work 12 for Defendants consisted solely of linehaul driving, does not 13 satisfy the typicality prerequisite with respect to Plaintiffs’ 14 meal and rest break claims. 15 Martinez was subject to the same meal and rest break practices as 16 linehaul drivers at other terminals. 17 other hand, satisfies the typicality requirement for these claims 18 since his work involved city driving. 19 other claims -- which are based on Defendants’ linehaul pay 20 formula, timekeeping practices, breakdown policy, and other 21 statewide policies -- Martinez and Mendez have both satisfied the 22 typicality prerequisite. 23 4. Plaintiffs have not shown that Plaintiff Mendez, on the For all of Plaintiffs’ Adequacy 24 Rule 23(a)(4) establishes as a prerequisite for class 25 certification that “the representative parties will fairly and 26 adequately protect the interests of the class.” 27 23(a)(4). 28 28 Fed. R. Civ. P. 1 Defendants argue that Plaintiff Mendez is unfit to serve as 2 class representative because he has “serious and unique 3 credibility issues.” 4 that Mendez’s deposition testimony -- which includes statements 5 that he was regularly denied meal and rest breaks -- conflicts 6 with Defendants’ GPS records showing that he made frequent stops 7 during his delivery runs. 8 9 Opp. 9. Specifically, Defendants assert In rare circumstances, a plaintiff’s lack of credibility may undermine his or her adequacy as a class representative. However, United States District Court For the Northern District of California 10 “[f]or an assault on the class representative’s credibility to 11 succeed, the party mounting the assault must demonstrate that 12 there exists admissible evidence so severely undermining 13 plaintiff’s credibility that a fact finder might reasonably focus 14 on plaintiff’s credibility, to the detriment of the absent class 15 members’ claims.” 16 1990). 17 Dollar Stores, Inc., 2009 WL 1458032, at *7 (N.D. Cal.) (finding 18 that “inconsistency between [plaintiff’s] deposition testimony and 19 statements in a declaration is not sufficient to impugn [his] 20 credibility” as a class representative). 21 Dubin v. Miller, 132 F.R.D. 269, 272 (D. Colo. This standard is difficult to satisfy. See, e.g., Cruz v. Here, Defendants have not shown that Mendez’s credibility 22 will impede his representation of the class. 23 GPS analysis of Mendez’s delivery runs, by its own terms, cannot 24 definitively show that he engaged in non-work-related activity 25 during truck stops or that he was actually relieved of duty during 26 every stop. 27 data cannot answer any question about the detailed activities of 28 Mr. Mendez during [vehicle stops]”). 29 In fact, Defendants’ Levine Decl., Ex. 1, at 4 (conceding that “the GPS Because Defendants offer no 1 other evidence to impugn Mendez’s credibility, their efforts to 2 disqualify him as a representative fail. 3 So, too, must Defendants’ argument that Plaintiff Martinez is 4 unfit to serve as class representative. 5 that Martinez lacks the capacity to understand his claims in this 6 lawsuit is contradicted by the very record they cite in support of 7 that assertion. 8 that Defendants cite as evidence of his inadequacy 9 confirms that he understands the substance of his claims in this Defendants’ assertion Indeed, the same excerpt of Martinez’s deposition ultimately United States District Court For the Northern District of California 10 suit: Martinez was asked multiple times if he understood the 11 allegations in the complaint and, each time, he affirmed that he 12 did. Martinez Dep. 28:18-:20, 29:9-:10. 13 The only barrier to Rule 23(a) adequacy in this case is 14 Plaintiff Martinez’s inability to represent a statewide class of 15 linehaul drivers on their meal and rest break claims for lack of 16 typicality. 17 and Martinez are adequate class representatives.9 For all other claims in this suit, Plaintiffs Mendez 18 19 9 20 21 22 23 24 25 26 27 28 Defendants also argue that Mendez and Martinez are unfit to represent a class that includes Defendants’ current drivers because they are no longer employed by Defendants. Courts in this district have specifically rejected that argument on multiple occasions. Krzesniak v. Cendant Corp., 2007 WL 1795703, at *11 (N.D. Cal.) (“‘Far from being inadequate class representatives, plaintiffs whose relationships with the defendant have been terminated may be more forceful advocates because they will be free from pressure and reprisals by the defendant.’” (citations omitted)); Rosenburg v. Int’l Bus. Machines Corp., 2006 WL 1627108, at *10 (N.D. Cal.) (“It was persuaded by ‘several cases [that] not only are former employees adequate representatives of current employees in class actions seeking at least in part declaratory and/or injunctive relief, but . . . that former employees provide superior representation in bringing claims against the employer.’” (citations omitted)). 30 1 2 D. Rule 23(b) Requirements 1. Predominance 3 “The predominance inquiry of Rule 23(b)(3) asks whether 4 proposed classes are sufficiently cohesive to warrant adjudication 5 by representation. 6 common and individual issues.” 7 Overtime Pay Litig., 571 F.3d 953, 957 (9th Cir. 2009) (internal 8 quotation marks and citations omitted). 9 present a significant aspect of the case and they can be resolved The focus is on the relationship between the In re Wells Fargo Home Mortgage “‘When common questions United States District Court For the Northern District of California 10 for all members of the class in a single adjudication, there is 11 clear justification for handling the dispute on a representative 12 rather than on an individual basis.’” 13 (quoting 7A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, 14 Federal Practice & Procedure § 1777 (2d ed. 1986)). 15 make “some prediction as to how specific issues will play out in 16 order to determine whether common or individual issues 17 predominate . . . .” 18 Antitrust Litig., 522 F.3d 6, 20 (1st Cir. 2008) (citation and 19 internal quotation marks omitted). Hanlon, 150 F.3d at 1022 A court must In re New Motor Vehicles Canadian Export 20 Here, Plaintiffs assert six class claims against Defendants: 21 violations of California’s meal and rest break laws, minimum wage 22 and overtime violations, unlawful withholding of wages, failure to 23 pay employees in a timely manner, failure to provide accurate and 24 itemized wage statements, and unfair business practices. 25 following sections address whether common questions of law and 26 fact predominate over individual ones with respect to each claim. 27 28 31 The 1 a. 2 3 4 5 6 7 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Meal and Rest Break Violations under Sections 226.7 and 512 of the California Labor Code Sections 226.7 and 512 of the Labor Code require employers to provide their employees with ten-minute rest breaks and thirtyminute meal breaks at specified intervals of time. As noted above, Defendants do not have a uniform statewide policy for providing meal and rest breaks to drivers. Thus, in order to satisfy the predominance prerequisite for their meal and rest break claims, Plaintiffs must demonstrate that Defendants’ unwritten policies and practices effectively discourage drivers across the State from taking breaks. Although Plaintiffs have presented sufficient evidence to make this showing for city drivers, they have failed to make the same showing for linehaul drivers. This Court has found that when a plaintiff’s claims are based on “allegations of an unwritten practice, as opposed to a written policy,” the putative class members will often “have to prove individual elements in order to show [the defendant]’s liability.” Mateo, 2009 WL 3561539, at *6; see also Washington v. Joe’s Crab Shack, 271 F.R.D. 629, 640 (N.D. Cal. 2010) (finding individual issues predominated when the plaintiff contended that the defendant’s “restaurants in California followed a common unwritten policy of denying meal and rest breaks”); Wren v. RGIS Inventory Specialists, 256 F.R.D. 180, 208–09 (N.D. Cal. 2009) (“Because the Court finds that employees must be offered, but need not be forced to take a meal break, the Court also concludes that many individualized inquiries will be necessary . . . to determine the reason meal breaks were missed and whether they were waived.”). 32 1 In order to overcome this barrier to predominance, the plaintiff 2 must allege specific facts, supported by evidence, to show that 3 the defendant’s “informal policies of discouraging the taking of 4 breaks would likely be susceptible to common proof.” 5 WL 1278301, at *7. 6 Pina, 2012 For example, in Pina, the court certified a class of city 7 drivers alleging meal and rest break violations after the named 8 plaintiffs “submitted evidence that the drivers observed by 9 Plaintiff [] sought the permission of their supervisor before United States District Court For the Northern District of California 10 taking a meal break, and that such permission was given only after 11 a shift’s deliveries were completed.” 12 F.R.D. at 638 (certifying a class of truck drivers alleging meal 13 and rest break violations even though the “majority of Plaintiff’s 14 evidence as to this question is anecdotal, consisting of the 15 declarations of driver/installers”). 16 there consisted primarily of declarations from drivers describing 17 the pressures they faced to skip meals and rest breaks. 18 1278301, at *7. 19 specific and persuasive here, they have demonstrated that the city 20 drivers’ meal and rest break claims can be proven principally 21 through common proof. 22 Plaintiffs succeed in demonstrating that such a practice is 23 common, the need for further inquiry into individual decisions 24 would be unnecessary. 25 issues of law and fact predominate . . . .”). 26 have satisfied Rule 23(b)(3)’s predominance requirement with 27 respect to city drivers’ meal and rest break claims. Id.; accord. Dilts, 267 The plaintiffs’ evidence 2012 WL Because Plaintiffs’ evidence is similarly See Pina, 2012 WL 1278301, at *7 (“If Accordingly, the Court finds that common 28 33 Thus, Plaintiffs 1 Plaintiffs do not, however, satisfy this requirement with 2 respect to linehaul drivers’ meal and rest break claims. 3 above, Plaintiffs fail to present sufficient evidence to establish 4 that Defendants employed a common set of unwritten policies and 5 practices that discouraged linehaul drivers from taking breaks. 6 This means that linehaul drivers’ meal and rest break claims would 7 require individual inquiries into the informal break policies at 8 all eleven of Defendants’ terminals in California. 9 Plaintiffs can only satisfy the predominance requirement on their United States District Court For the Northern District of California 10 11 As noted Accordingly, meal and rest break claims for a subclass of city drivers. b. 12 Minimum Wage and Overtime Violations under Sections 216, 1194, 1194.2, and 1197 of the Labor Code 13 Section 1197 of the Labor Code establishes California’s 14 minimum wage. 15 employees to recover unpaid wages from an employer who fails to 16 pay them at the legal minimum wage or overtime rate. 17 1194.2 allows the employee to recover liquidated damages for such 18 a violation and section 216 makes it a misdemeanor for any 19 employer to withhold wages willfully from an employee after the 20 employee has demanded those wages. 21 Section 1194 creates a cause of action for Section Here, Plaintiffs allege that Defendants’ policies for paying 22 truck drivers violate these Labor Code provisions. 23 they contend that Defendants’ linehaul pay formula, timekeeping 24 system, and breakdown policy ultimately deprive the putative class 25 members of their lawfully owed compensation. 26 policies apply to every one of Defendants’ drivers in California, 27 Plaintiffs’ wage-and-hour claims inherently raise many legal and 28 34 In particular, Because these 1 factual questions common to all putative class members. 2 questions can be answered principally through common evidence. 3 These For instance, Plaintiffs’ allegations about Defendants’ 4 timekeeping system will require proof that Defendants’ rounding 5 practices distort city drivers’ working hours to such an extent 6 that they ultimately violate California’s minimum wage and 7 overtime laws. 8 the formula Defendants use to calculate city drivers’ hourly pay 9 and whether that formula leads to underpayment. This will entail common fact-finding to determine It will also United States District Court For the Northern District of California 10 likely require adjudication of the various legal questions that 11 Defendants raise in their brief, including whether federal 12 regulations expressly permit employers to use rounding systems 13 like theirs. 14 class member’s wage-and-hour claims and can easily be addressed in 15 a class action. 16 See Opp. 22-25. These issues are relevant to every Similarly, Defendants’ linehaul pay formula and breakdown 17 policy -- both of which affect every linehaul driver in the 18 State -- also raise many common questions. 19 the linehaul pay formula misrepresents linehaul drivers’ working 20 hours, whether the formula adequately compensates drivers for non- 21 driving time, whether the breakdown policy exacerbates any 22 inaccuracies in the linehaul formula, and other questions. 23 again, Defendants raise additional legal questions -- such as 24 whether California law recognizes the “lawfulness of piece-rate 25 compensation for drivers” -- that are also relevant to all 26 putative class members. 27 common questions that Defendants’ pay policies raise will likely 28 predominate over individual questions. 35 Opp. 22-25. These include whether Here When combined, the various 1 Defendants nevertheless argue that individual questions 2 inevitably predominate over individual ones in wage-and-hour class 3 actions like this one. 4 this district for support: Washington, 271 F.R.D. at 640, and 5 Cornn v. United Parcel Service, Inc., 2005 WL 2072091, at *5 (N.D. 6 Cal.). 7 They rely on two decisions from courts in Neither of these cases is analogous. The plaintiffs in Washington were denied class certification 8 because they failed to show that the defendant’s unwritten break 9 policies were consistent across multiple locations. 271 F.R.D. at United States District Court For the Northern District of California 10 640. 11 based on concrete, uniform pay policies that apply equally to 12 drivers across the State. 13 of a defendant’s uniform pay policy -- is often sufficient to 14 satisfy the predominance prerequisite in cases where a plaintiff- 15 employee alleges underpayment. 16 Liquidators, Inc., 2012 WL 1004850, at *6 (N.D. Cal.) (certifying 17 a class of employees alleging overtime violations based on the 18 plaintiff’s evidence that he was subject to a “uniform practice 19 for calculating overtime pay”). 20 Here, in contrast, Plaintiffs’ wage-and-hour claims are This kind of evidence -- that is, proof See, e.g., Chavez v. Lumber Cornn is inapposite for similar reasons. In that case, the 21 court refused to certify a class of truck drivers who alleged 22 inaccurate timekeeping practices because the defendant-employer 23 offered evidence that the putative class members’ punching-in 24 routines varied so widely as to make certification inappropriate. 25 2005 WL 2072091, at *5 (noting that there was “no common practice” 26 among delivery drivers with respect to punching in for shifts). 27 Because the court could not assume that every driver began work 28 immediately after punching in, the defendant’s timekeeping records 36 1 could not serve as common proof for every driver in the proposed 2 class. 3 their timekeeping records -- or any of their other records 4 relating to statewide pay policies -- suffer from the same 5 probative shortcomings as those in Cornn. 6 Id. Defendants in this case, however, have not shown that Thus, in light of the numerous common questions raised by 7 Defendants’ timekeeping practices, linehaul pay formula, and 8 breakdown policy, Plaintiffs have satisfied Rule 23(b)(3)’s 9 predominance requirement with respect to their wage-and-hour United States District Court For the Northern District of California 10 claims. 11 12 c. Penalties under Section 203 of the Labor Code Section 203 of the Labor Code imposes monetary penalties on 13 employers who unlawfully withhold wages from employees who are 14 discharged or who quit. 15 employee. 16 These penalties are paid directly to the Cal. Lab. Code § 203(a). Here, Plaintiffs allege that Defendants failed to compensate 17 fully drivers who quit or were terminated. 18 duplicative of Plaintiffs’ underlying wage-and-hour claims and, as 19 such, can be proven with essentially the same sources of common 20 evidence. 21 answered to determine Defendants’ liability for wage-and-hour 22 violations coincide, in large part, with the legal and factual 23 questions that must be answered to determine their liability under 24 section 203. 25 the defendants’ liability for section 203 penalties overlapped 26 sufficiently with their liability for other wage-related 27 violations, “it will follow necessarily that class members who 28 terminated their employment were owed additional wages as [sic] 37 This claim is largely The various legal and factual questions that must be Cf. Pina, 2012 WL 1278301, *9 (finding that because 1 the time of termination”). 2 predominate over individual ones with respect to Plaintiffs’ wage- 3 and-hour claims, they also predominate with respect to Plaintiffs’ 4 section 203 claim. 5 6 Because these common questions 10 d. Violation of Section 204 of the Labor Code Section 204 of the Labor Code requires employers to pay their 7 employees on a regular basis and in a timely manner. 8 Specifically, it requires employers to pay their employees bi- 9 monthly and to ensure that employees are compensated within two to United States District Court For the Northern District of California 10 four weeks of performing any labor. 11 & (d). 12 Cal. Lab. Code §§ 204(a) Here, Plaintiffs’ section 204 claim -- much like their 13 section 203 claim -- is essentially derivative of their other 14 wage-related claims and will likely rely on the same sources of 15 common proof. 16 Defendants failed to compensate them fully, then they can easily 17 show that Defendants also failed to pay them in a timely manner. 18 Because common questions predominate with respect to Plaintiffs’ 19 other wage-and-hour claims, they also predominate with respect to 20 Plaintiffs’ section 204 claim. In short, if Plaintiffs can demonstrate that 21 22 23 10 24 25 26 27 28 Any individual questions that must be answered to calculate section 203 damages -- regarding the timing of when certain employees quit or were terminated -- would impose only marginal burdens on the Court. See Lemus v. H&R Block Enter., LLC, 2010 WL 5069695, *5 (N.D. Cal.) (granting class certification on several wage-and-hour claims and concluding that payroll records would make “[c]alculation of damages relating thereto, including penalties under section 203 . . . straight forward and readily done”). 38 e. 1 2 Failure to Provide Accurate, Itemized Wage Statements under Section 226 of the Labor Code Section 226 of the Labor Code requires that employers provide 3 every employee with a written wage statement that lists, in 4 relevant part: 5 (1) gross wages earned, (2) total hours worked by the employee . . . (3) the number of piece-rate units earned and any applicable piece rate if the employee is paid on a piece-rate basis, (4) all deductions . . . (5) net wages earned, (6) the inclusive dates of the period for which the employee is paid, . . . and (9) all applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate by the employee. 6 7 8 9 United States District Court For the Northern District of California 10 11 Cal. Lab. Code § 226(a). If an employer knowingly and 12 intentionally fails to provide these itemized statements to an 13 employee, it must pay the employee damages as set forth in the 14 statute. Id. § 226(e). Here, Plaintiffs allege that Defendants knowingly failed to 15 16 provide itemized wage statements to drivers in violation of 17 section 226. 18 provide wage statements to all drivers, Fishpaw Dep. 166:3-:23, 19 thus laying the foundation for several common questions of law and 20 fact. 21 drivers include every item required by California law, whether 22 Defendants knowingly or intentionally omitted any information from 23 these wage statements, and whether and how linehaul drivers’ wage 24 statements differ from those of city drivers. 25 section 226 liability is also predicated upon their liability for 26 the various other wage-related violations Plaintiffs allege, all 27 of which raise additional common questions. 28 questions predominate over individual questions. 39 They have provided evidence showing that Defendants These include: whether the wage statements issued to Defendants’ Taken together, these 1 f. Unfair Business Practices under the Business and Professions Code 2 3 4 5 6 7 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Section 17200 of the Business and Professions Code, also known as California’s Unfair Competition Law (UCL), prohibits certain “unlawful, unfair or fraudulent business act[s] or practice[s].” Cal. Bus. & Prof. Code § 17200. Plaintiffs allege that Defendants have violated the UCL by committing various Labor Code violations. 1AC ¶¶ 55-57. Thus, the many common questions raised by Plaintiffs’ various Labor Code claims are also directly relevant to establishing Defendants’ liability under the UCL. Because these questions predominate with respect to those other claims -- and because Defendants do not identify any element of this claim requiring an individualized inquiry -- Plaintiffs satisfy the predominance prerequisite with respect to their UCL claim, as well. 2. Superiority “Rule 23(b)(3) also requires that class resolution must be ‘superior to other available methods for the fair and efficient adjudication of the controversy.’” (quoting Fed. R. Civ. P. 23(b)(3)). Hanlon, 150 F.3d at 1023 “If each class member has to litigate numerous and substantial separate issues to establish his or her right to recover individually, a class action is not ‘superior.’” Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1192 (9th Cir. 2001). In this case, Plaintiffs satisfy the superiority prerequisite for all of their claims except for the linehaul drivers’ meal and rest break claims. The risks, small recovery, and relatively high costs of litigation here make it unlikely that individual drivers 40 1 will pursue claims against Defendants independently. 2 action, however, “would offer those with small claims the 3 opportunity for meaningful redress.” 4 Inc., 268 F.R.D. 356, 365 (N.D. Cal. 2010). 5 action would more efficiently resolve the numerous legal and 6 factual questions relevant to every driver’s claims against 7 Defendants. 8 individual litigation in this case. United States District Court For the Northern District of California Sullivan v. Kelly Services, In addition, a class Accordingly, the class action is superior to 9 10 A class CONCLUSION For the reasons set forth above, the Court DENIES Defendants’ 11 motion for partial summary judgment (Docket No. 56). 12 motion for class certification is GRANTED in part and DENIED in 13 part (Docket No. 57). Plaintiffs’ 14 For all of Plaintiffs’ claims other than their first cause of 15 action, the Court certifies a class of: all truck drivers employed 16 by Defendants in California between May 2007 and May 2011. 17 Plaintiffs Mendez and Martinez are appointed representatives of 18 the class. 19 For Plaintiffs’ first cause of action (i.e., their meal and 20 rest break claims), the Court certifies a subclass of: all truck 21 drivers employed by Defendants in California between May 2007 and 22 May 2011 who performed city driving. 23 appointed representative of this sub-class. Plaintiff Mendez is 24 Plaintiffs’ counsel is appointed class counsel. 25 evidentiary objections to James Fishpaw’s declaration and 26 deposition testimony are overruled as moot. 27 supplemental briefs regarding additional authority (Docket Nos. 62 28 41 Plaintiffs’ Plaintiffs’ 1 & 64) are stricken for failing to comply with Civil Local 2 Rule 7-3(d)(2). 3 IT IS SO ORDERED. 4 5 6 Dated: 11/19/2012 CLAUDIA WILKEN United States District Judge 7 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 42

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