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

Filing 67

ORDER by Judge Claudia Wilken DENYING DEFENDANTS 56 MOTION FOR SUMMARY JUDGMENT AND GRANTING IN PART 57 PLAINTIFFS MOTION FOR CLASS CERTIFICATION. (ndr, COURT STAFF) (Filed on 11/19/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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ROBERT MENDEZ, et al.
Plaintiffs,

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United States District Court
For the Northern District of California

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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.
________________________________/

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13

INTRODUCTION

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Plaintiffs Robert Mendez and Randy J. Martinez bring this

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action on behalf of themselves and all others similarly situated,

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alleging that their former employer, Defendants R+L Carriers,

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Inc., R+L Carriers Shared Services, LLC, and Does 1-10, violated

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various provisions of the California Labor Code and Business and

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Professions Code.

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judgment.

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certification, for their appointment as class representatives, and

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for appointment of class counsel.

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September 20, 2012.

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the papers filed by the parties, the Court DENIES Defendants’

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motion for partial summary judgment and GRANTS in part and DENIES

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in part Plaintiffs’ motion for class certification.

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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

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BACKGROUND

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Defendants, R+L Carriers, Inc. and R+L Carriers Shared

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Services LLC (collectively, R+L), provide national transportation

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and shipping services to the public, including the transport of

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freight by motor vehicle.

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employed more than 300 truck drivers in California since it first

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expanded its operations into the State in 2007.

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Decl. ¶¶ 12-13.

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across California.

United States District Court
For the Northern District of California

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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

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drivers,” who typically work at night transporting freight

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trailers over long distances and then returning to their starting

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terminal with new freight that they acquired at their turnaround

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point; (2) “city drivers,” who typically work during the day

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making multiple pickups and deliveries to customer locations near

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their home terminal; and (3) “combo drivers,” who do some city

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driving (i.e., local pickups and deliveries) during the day and

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some linehaul driving in the evenings.

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All city driving is paid by the hour and all linehaul driving is

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paid according to a specific distance-based formula.

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Id. ¶¶ 2-4, 8.

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Copsey Decl. ¶¶ 7, 10.

On May 20, 2011, one of R+L’s former combo drivers, Plaintiff

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Mendez, filed this putative class action against the company,

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alleging various violations of California labor law.

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Compl. ¶¶ 14-57, Docket No. 1.

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former drivers -- two linehaul, one combo -- joined Mendez as

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Plaintiffs and filed a First Amended Complaint (1AC).

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Docket No. 25.

On December 16, 2011, three other

1AC ¶ 9,

The 1AC specifically charged R+L with failing to
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provide its drivers with meal and rest breaks, compensate them at

2

the legal minimum wage and overtime rates, pay them in a timely

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manner, and provide them with accurate wage statements as required

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by state law.

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Id. ¶¶ 27-57.

On July 17, 2012, Plaintiffs Mendez and Martinez moved to

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certify a class under Rule 23(b)(3) consisting of all truck

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drivers who were employed by R+L between May 20, 2007 and the

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present.

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and to have their attorneys appointed class counsel.

United States District Court
For the Northern District of California

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They also moved to be appointed class representatives

That same day, Defendants moved for summary judgment on all

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of Plaintiffs’ claims arising under two Labor Code provisions

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collectively known as California’s “meal and rest break laws.”

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The first of these provisions, section 226.7, states that

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employers must comply with the State Industrial Welfare

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Commission’s (IWC) rules governing meal and rest breaks.

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Lab. Code § 226.7.

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Order 9-2001, which requires all employers in the transportation

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industry to provide their employees with a ten-minute rest break

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for every four consecutive hours of work.

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tit. 8, § 11090(12)(B).

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mandate that employers “pay the employee one additional hour of

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pay at the employee’s regular rate of compensation for each work

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day that the meal or rest period is not provided.”

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§ 226.7(b); see also Cal. Code Regs. tit. 8, § 11090(12)(B) (using

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language almost identical to section 226.7).

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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.

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Regs. tit. 8, § 11090(11)(D).

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8
9

United States District Court
For the Northern District of California

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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

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preempted by the Federal Aviation Administration Authorization Act

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(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

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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

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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.

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language from the Airline Deregulation Act of 1978 (ADA),

7

in relevant part:

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9

United States District Court
For the Northern District of California

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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,

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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

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of [the] State’s action” on the motor carrier industry.

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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

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ends and the provision is not preempted by the FAAA Act.

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395.

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to” pricing, routes, or services, it must proceed to the second

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part of the test to determine whether the provision falls within

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the “market participant” exception to FAAA Act preemption.

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395, 398 (“The FAAA Act ‘preempt[s] only [S]tate regulation, and

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not actions a [S]tate takes as a market participant.’” (citations

25

omitted)).

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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

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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

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codified in § 14501(c)(2) of the FAAA Act apply to the challenged

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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.”

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49 U.S.C. § 14501(c)(2)(A).

13

purpose are not preempted by the FAAA Act.

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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

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services and it does not fall under the market participant

17

exception or an express statutory exemption.

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3.

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a.

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21
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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.

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3
4
5
6
7
8
9

United States District Court
For the Northern District of California

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15
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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

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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
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United States District Court
For the Northern District of California

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