Fuller et al v. TWC Administration, LLC et al

Filing 71

ORDER Denying 54 Plaintiff's Motion for Class Certification. Signed by Judge Dana M. Sabraw on 1/3/2020. (mme)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11
12
13
14

LAURENCE GIBBS, an individual,
MATTHEW LUTACK, an individual,
BRENT QUICK, an individual, and
JESSICA HUENEBERG, an individual,
on behalf of themselves and all others
similarly situated,

15
16
17
18
19

Case No.: 17-cv-1513 DMS (AGS)
ORDER DENYING PLAINTIFFS’
MOTION FOR CLASS
CERTIFICATION

Plaintiffs,
v.
TWC ADMINISTRATION, LLC, a
Delaware Limited Liability Company, and
DOES 1 through 10, inclusive,
Defendant.

20
21

Pending before the Court is Plaintiffs’ motion for class certification. Defendants

22
23
24
25

filed a response, and Plaintiffs file a reply. For the reasons set forth, this motion is denied.
///
///

26
27
28
1
17-cv-1513 DMS (AGS)

1

I.

BACKGROUND1

2

Time Warner provides video, high-speed data, and voice services to customers in

3

the United States. Defendant Time Warner Cable (“TWC”), a wholly owned subsidiary of

4

Time Warner, directs Time Warner’s daily business practices. Plaintiffs Laurence Gibbs,

5

Matthew Lutack, Brent Quick, and Jessica Hueneberg worked as customer service

6

professionals (“CSRs”) and call center leads (“leads”) (collectively, “agents”) for

7

Defendant Time Warner Cable (“TWC” or “Defendant”) in San Diego and Ontario,

8

California. Brent Quick was employed as a CSR and Technical Support Professional from

9

2014 to 2017 (Quick Decl. ¶ 7). Matthew Lutack was employed as a CSR and Technical

10

Support Professional from 2009 to 2016. (Lutack Decl. ¶ 7). Laurence Gibbs was

11

employed from 2011 to 2014, working as CSR and Lead. (Gibbs Decl. ¶ 7). Jessica

12

Hueneberg was employed from 2014 to 2016 as a CSR. (Hueneberg Decl. ¶ 6). In these

13

customer service roles, Plaintiffs assisted customers over the phone regarding issues related

14

to sales, billing, and technology support. (Memo re: MCC, 4).

15

At all times relevant to this action, Plaintiffs were non-exempt employees. As such,

16

Plaintiffs were entitled to scheduled meal and rest periods. TWC maintained the following

17

policy regulating off-the-clock work, meal breaks, and rest breaks:
“All employees are to take paid rest breaks, 15 minutes for each four hours of work.
Employees must also take an unpaid lunch break of 60 minutes during each shift of
6 hours or more. Employees are never to ‘punch out’ and keep working (other wise
[sic] known as ‘working off the clock’). Working off the clock is strictly
prohibited.” (Realin Decl., ECF No. 66, Exh. 6).

18
19
20
21
22

Despite this policy, Plaintiffs contend TWC’s phone system required off-the-clock

23

work at the beginning of their shifts. To field high volumes of customer service calls,

24

Plaintiffs needed to take calls as soon as they clocked in. From at least 2013, agents used

25

a phone system called “Avaya.” (MSJ, Exh. 6; King Decl. ¶ 3). This phone system is

26
27

A more detailed factual summary is available in this Court’s order on summary
judgment (ECF No. 70).
1

28

2
17-cv-1513 DMS (AGS)

1

connected to Kronos, TWC’s time-keeping system, so “when an agent logs into the Avaya

2

phone system, he or she is simultaneously clocked into Kronos and on the clock.” (Id.).

3

However, Plaintiffs allege they needed to load their programs before taking phone calls,

4

and thus before clocking in. As such, Plaintiffs allege TWC required off-the-clock work

5

because they spent time loading their programs before clocking in.

6

In addition to off-the-clock claims, Plaintiffs Quick, Gibbs, and Hueneberg testified

7

to missing meal breaks because their jobs involved fielding high volumes of customer

8

service calls during their shifts. Ms. Hueneberg stated her supervisors told her she “was

9

not allowed to end or transfer a call,” so she could only go on her breaks after finishing

10

phone calls. (Hueneberg Decl. ¶ 16).

11

would occasionally be delayed past the fifth or sixth hour as a result of extended customer

12

phone calls or team meetings, and because supervisors told him to “wrap up the call and

13

then go on your lunch.” (Realin Decl., Exh. 4, 179:9–14). Finally, Mr. Gibbs testified

14

that his meal and rest breaks were delayed if customer escalations occurred. (Realin Decl.,

15

Exh. 5, at 71:12–15; 71:21–24; 73:16–74:1).

16

Hueneberg all testified to notifying supervisors of either missed meal or rest breaks. (Id.,

17

Exh. 4, 49:16–50:3; Exh. 5 at 66:17–67:3; Exh. 3 at 43:6–8, 43:13–15).

Similarly, Mr. Quick testified his meal periods

Further, Plaintiffs Quick, Gibbs, and

18

On May 28, 2019, Plaintiffs filed the present motion for class certification. (ECF

19

No. 54, “MCC”). Plaintiffs move for class certification on all current and former non-

20

exempt employees of Defendant who worked in a call center as a Customer Service

21

Professional, Customer Service and Billing Professional, Technical Support Professional,

22

Technical Support and Billing Professional, and/or Call Center Lead, between April 20,

23

2013 and the date of class certification, who have not signed an arbitration agreement with

24

Defendant as of the date the complaint was filed. (Id. at 1). Plaintiffs seek to certify a

25

class of employees from Defendant’s San Diego, CA and Ontario, CA offices. Defendant’s

26

corporate records indicate 536 putative class members in their San Diego office, and over

27

300 in their Ontario office. (Markham Decl., ¶ 15). Of this larger group, Plaintiffs move

28

for class certification for the following individual sub-classes:
3
17-cv-1513 DMS (AGS)

1
2
3
4
5
6
7
8
9
10
11
12
13
14

(1) the “off-the-clock subclass,” including employees who were not paid for all
hours worked, in any pay period within the class period;
(2) the “overtime subclass,” including employees who were not provided with
overtime pay during the class period, including only employees who worked
more than eight hours in any given day and more than forty hours in any given
week during the class period;
(3) the “meal break subclass,” including employees who worked more than five
hours and were not provided with uninterruptable meal periods of at least 30
minutes or delayed meal periods that began after the fifth hour of work;
(4) the “rest break subclass” of employees who were not provided with
uninterruptable rest breaks of at least ten minutes for each four hours of work;
(5) the “wage statement subclass” including employees who were not provided with
accurately itemized wage statements for all hours worked; and
(6) the “waiting time subclass” of employees who were not paid all wages due and
owing at the time of separation. (MCC at 1).

15

On July 26, 2019, Defendant filed a motion for summary judgment on all of

16

Plaintiffs’ claims. (ECF No. 60). On August 14, 2019, the parties stipulated to this Court

17

deciding the motion for summary judgment prior to the present motion for class

18

certification. (ECF No. 64). On January 3, 2020, this Court granted this motion in part

19

and denied it in part, finding triable issues of fact for all named Plaintiffs’ off-the-clock

20

claims for work performed prior to clocking in, Plaintiff Hueneberg, Gibbs, and Quick’s

21

meal break claims, and Plaintiff Gibbs’ rest break claims, and any related wage statement

22

and waiting time claims. (ECF No. 70). Therefore, class certification will only be

23

addressed with respect to those claims.

24

II.

DISCUSSION

25

“The class action is ‘an exception to the usual rule that litigation is conducted by and

26

on behalf of the individual named parties only.’” Wal-Mart Stores, Inc. v. Dukes, 564 U.S.

27

338, 131 S.Ct. 2541, 2550, 180 L.Ed.2d 374 (2011). “A party seeking class certification

28

must satisfy the requirements of Federal Rule of Civil Procedure 23(a) and the
4
17-cv-1513 DMS (AGS)

1

requirements of at least one of the categories under Rule 23(b).” Wang v. Chinese Daily

2

News, Inc., 709 F.3d 829, 832 (9th Cir. 2013); United Steel, Paper & Forestry, Rubber

3

Mfg. Energy, Allied Indus. & Serv. Workers Int’l Union v. ConocoPhillips Co., 593 F.3d

4

802, 806–07 (9th Cir. 2010) (“United Steel”) (burden is on the moving party).

5

The district court must conduct a rigorous analysis to determine whether Rule 23’s

6

prerequisites are met. Ge. Tel. Co. v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 72

7

L.Ed.2d 740 (1982). It is a well-recognized precept that “the class determination generally

8

involves considerations that are ‘enmeshed in the factual and legal issues comprising the

9

plaintiff’s cause of action.’” Coopers & Lybrand v. Livesay, 437 U.S. 463, 469, 98 S.Ct.

10

2454, 57 L.Ed.2d 351 (19718) (quoting Mercantile Nat’l Bank v. Langdeau, 371 U.S. 555,

11

558, 83 S.Ct. 520, 9 L.Ed.2d 523 (1963)). “Although some inquiry into the substance of

12

the case may be necessary to ascertain satisfaction of the commonality and typicality

13

requirements of Rule 23(a), it is improper to advance a decision on the merits to the class

14

certification stage.” Moore v. Hughes Helicopters, Inc., 708 F.2d 475, 480 (9th Cir. 1983)

15

(citing Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177–78 (1974). Rather, the Court’s

16

review of the merits is limited to those aspects relevant to making the certification decision

17

on an informed basis. See Fed. R. Civ. P. 23 Advisory Committee Notes. If a court is not

18

fully satisfied that the requirements of Rule 23(a) and Rule 23(b) are met, certification

19

should be denied. Falcon, 457 U.S. at 161.

20

A. Rule 23(a) Requirements

21

Rule 23(a) allows one or more members of a class to sue as representative parties

22

when: “(1) the class is so numerous that joinder of all members is impracticable; (2) there

23

are questions of law or fact common to the class; (3) the claims . . . of the representative

24

parties are typical to the claims . . . of the class; and (4) the representative parties will fairly

25

and adequately protect the interests of the class.” Fed R. Civ. P. 23(a). “Rule 23(a) ensures

26

that the named plaintiff is an appropriate representative of the class whose claims she

27

wishes to litigate. The Rule’s four requirements—numerosity, commonality, typicality,

28

and adequate representation—effectively limit the class claims to those fairly encompassed
5
17-cv-1513 DMS (AGS)

1

by the named plaintiff’s claims.” Dukes, 131 S.Ct. at 2550–51 (internal quotation marks

2

and citations omitted). “A party seeking class certification must affirmatively demonstrate

3

his compliance with the Rule—that is, he must be prepared to prove that there are in fact

4

sufficiently numerous parties, common questions of law or fact, etc.” Id. at 2551

5

(emphasis in original).

6

1. Numerosity

7

A putative class may be certified if it “is so numerous that joinder of all members is

8

impracticable[.]” Fed. R. Civ. P. (23)(a)(1). Joinder is usually deemed impracticable if a

9

class is “large in numbers.” See Jordan v. City of Los Angeles, 669 F.2d 1311, 1319 (9th

10

Cir. 1982), vacated on other grounds, 459 U.S. 810 (1982) (finding class sizes of 39, 64,

11

and 71 sufficiently numerous). Here, Plaintiffs note Defendant’s corporate records indicate

12

536 putative class members in their San Diego office, and over 300 in their Ontario office.

13

(Markham Decl., ¶ 15). Therefore, the requirement of numerosity is met.

14

2. Commonality Under Rule 23(a) and Predominance Under Rule 23(b)(3)

15

In the interest of efficiency, commonality under Rule 23(a) is considered together

16

with predominance under Rule 23(b)(3). See Amchem Prods., Inc. v. Windsor, 521 U.S.

17

591, 609, 117 S.Ct. 2231, 138 L.Ed.2d. 689 (1997) (“Rule 23(a)(2)’s ‘commonality’

18

requirement is subsumed under, or superseded by, the more stringent Rule 23(b)(3)

19

requirement that questions common to the class ‘predominate over’ other questions.”).

20

Rule 23(a) requires the existence of “questions of law or fact common to the class.”

21

Fed. R. Civ. P. 23(a)(2). The putative class members’ claims must “depend on a common

22

contention,” which “must be of such a nature that it is capable of classwide resolution—

23

which means that determination of its truth or falsity will resolve an issue that is central to

24

the validity of each one of the claims in one stroke.” Dukes, 131 S. Ct. at 2551.

25
26
27

“What matters to class certification . . . is not the raising of common ‘questions’—
even in droves—but rather, the capacity of a classwide proceeding to generate
common answers apt to drive the resolution of the litigation. Dissimilarities within
the proposed class are what have the potential to impede the generation of common

28
6
17-cv-1513 DMS (AGS)

1

answers.”

2

Similarly, the predominance inquiry under Rule 23(b)(3) “focuses on the

3
4
5
6
7
8
9

Id.

(internal

citations

and

quotation

marks

omitted).

relationship between the common and individual issues and tests whether the proposed
class [is] sufficiently cohesive to warrant adjudication by representation.” Vinole v.
Countrywide Home Loans, Inc., 571 F.3d 935, 944 (9th Cir. 2009) (internal quotation
marks, footnote, and citation omitted).

“When one or more of the central issues in the

action are common to the class and can be said to predominate, the action may be
considered proper under Rule 23(b)(3) even though other important matters will have to be
tried separately, such as damages or after affirmative defenses peculiar to some individual

10

class members.” Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036, 1045 (2016) (citations

11

and internal quotation marks omitted).

12

23(a) is ‘less rigorous’ than the related preponderance standard under Rule 23(b)(3).”

13
14

Negrete v. ConAgra Foods, Inc., 2019 WL 1960276 at *2 (C.D. Cal. 2019) (quoting Hanon
v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998)).

15
16
17
18
19
20
21
22
23
24
25
26
27

However, “[p]roof of commonality under Rule

“Claims alleging that a uniform policy consistently applied to a group of employees
is in violation of the wage and hours laws are of the sort routinely, and properly, found
suitable for class treatment.” Brinker Rest. Corp. v. Super. Ct., 53 Cal. 4th 1004, 1033
(2012).

Plaintiffs contend this case meets the commonality and predominance

requirements because Defendant had common practices leading to Plaintiffs working offthe-clock, and missing requisite meal and rest periods. Because the remaining claims are
derivative of these claims, Plaintiffs contend the remaining claims meet these requirements
as well. In response, Defendant contends the case lacks commonality because TWC had
no common policy or practices mandating unlawful off-the-clock work or missed breaks.
To the contrary, Defendant notes all of its policies were lawful. Moreover, Defendant notes
the experiences of the named Plaintiffs diverged, evidencing individualized issues of fact
and an absence of predominance.
///

28
7
17-cv-1513 DMS (AGS)

1

a. Overtime and Off-the-Clock Work

2

Plaintiffs contend their off-the-clock claims meet the commonality and

3

predominance requirements because Defendant “[had] a common practice of requiring

4

Plaintiffs and class members to perform off-the-clock work starting and loading software

5

before they were able to clock-in for their shift, and the Plaintiffs and class members

6

suffered the same damage—unpaid wages.” (MCC at 18). As Plaintiffs note, “a plaintiff

7

may establish liability for an off-the-clock claim by proving that (1) he performed work for

8

which he did not receive compensation; (2) that defendants knew or should have known

9

that plaintiff did so; but that (3) the defendants stood idly by.” Jimenez v. Allstate Ins. Co.,

10

765 F.3d 1161, 1165 (9th Cir. 2014), cert denied, 135 S. Ct. 2835 (2015). Here, Plaintiffs

11

note the factual bases for their overtime and off-the-clock claims derive from their shared

12

experiences under TWC’s common policies and practices.

13

In response, Defendant contends Plaintiffs’ claims cannot satisfy the commonality

14

and predominance requirements because TWC’s policies “expressly prohibit off-the-clock

15

work.” (Opp. At 2). Although TWC’s policies prohibit off-the-clock work, this Court

16

found Plaintiffs provided evidence of off-the-clock work performed before clocking in

17

when denying Defendant’s motion for summary judgment on those claims. (ECF No. 70

18

at 18–20). Nevertheless, the existence of such evidence does not provide evidence of a

19

common policy or practice. Plaintiffs note TWC’s facially valid policy is insufficient to

20

defeat the commonality inquiry, because TWC may nevertheless have a company-wide

21

practice which may “sustain a common question of fact or law that supports commonality

22

for class certification.” (MCC at 12–13) (citing Williams v. Super. Ct., 221 Cal. App. 4th

23

1353, 1365 (2013)). Further, Plaintiffs contend TWC’s policy prohibiting off-the-clock

24

work was “illusory” because its inconsistent policies “in fact mandated off-the-clock

25

work.” (Reply at 4). Rather than a company-wide practice mandating off-the-clock work,

26

however, the experiences of the named Plaintiffs show differences in circumstances

27

depending on their supervisors. For example, Plaintiff Hueneberg testified one supervisor

28

told her to work off-the-clock loading programs prior to her shift, while another forbade it.
8
17-cv-1513 DMS (AGS)

1

(Hueneberg Dep. 129:14–25; 53:23–55:4).

2

determining whether a plaintiff has an off-the-clock claim because plaintiffs need to prove

3

that their supervisors “stood idly by” despite having knowledge of their off-the-clock work.

4

See Jimenez, 765 F.3d at 1165.

These differences are dispositive when

5

Although Plaintiffs point to a series of recent cases granting class certification for

6

off-the-clock claims, (MCC at 14–15), in each of those cases, the off-the-clock and

7

overtime violations resulted from a company-wide policy or practice. See, e.g., Lao v.

8

H&M Hennes & Mauritz, L.P., 2018 WL 3753708 at *1–2 (N.D. Cal. 2018) (granting class

9

certification for off-the-clock claims where plaintiffs challenged a company-wide policy

10

requiring employees to undergo security checks before leaving the store for rest breaks and

11

at the end of their shifts); Negrete v. ConAgra Foods, 2019 WL 1960276 at *4 (C.D. Cal.

12

2019) (granting class certification for off-the-clock claims where Defendant did not

13

compensate Plaintiffs for “time spent donning and doffing protective gear at the beginning

14

and end of their shifts”). Unlike those cases, there is no common policy or practice here.

15

Plaintiffs contend any individualized differences in supervisors’ behaviors do not

16

detract from commonality, but rather indicate a damages issue. (Id.). The Court disagrees.

17

Rather than a damages issue, the individualized discretion of supervisors establishes

18

liability for each named plaintiff, as well as all putative class members. Plaintiffs compare

19

their case to Negrete v. ConAgra Foods, where the district court found the commonality

20

requirement was met when the defendant had not adopted a corporate policy requiring all

21

employees to be paid for donning and doffing time, even though some employees donned

22

their equipment before arriving to work and doffed it after leaving, finding such “individual

23

issues” would be addressed with respect to damages. 2019 WL 1960276 at *5.

24

however, the “individualized differences” not only go to the issue of damages, but to

25

whether each plaintiff has a claim at all. Some TWC supervisors specifically instructed

26

their employees to clock in before loading programs, while others did not, as reflected in

27

the individual experience of Plaintiff Hueneberg. (See Hueneberg Dep. 129:14–25; 53:23–

28

55:4). As such, the Court finds that the off-the-clock subclass’s claims do not appear to

Here,

9
17-cv-1513 DMS (AGS)

1

“depend upon a common contention . . . of such nature that it is capable of classwide

2

resolution.” Dukes, 131 S. Ct. at 2551; See also Ordonez v. Radio Shack, 2013 WL 210223

3

at *8 (C.D. Cal. 2013) (denying certification because “[p]laintiff offer[ed] insufficient

4

evidence that any alleged off-the-clock work was due to a standardized employment

5

practice, rather than a product of the vagaires of the store an employee worked in, the time

6

of year, or the manager who was in charge.”); Kilbourne v. Coca-Cola Co, 2015 WL

7

5117080 at *10 (S.D. Cal. 2015) (finding plaintiff failed to meet the commonality

8

requirement because “[i]n the absence of proof of a company-wide directive or common

9

policy,” determining if supervisors had constructive knowledge of off-the-clock work

10

“would require individual inquiries into the practices of various Distribution Centers”).

11

Therefore, Plaintiffs fail to meet the commonality requirement for their off-the-clock

12

claims.

13

Plaintiffs also fail to meet Rule 23(b)(3)’s requirement for predominance. Defendant

14

contends “certification must be denied because resolving these claims would require

15

individualized inquiries as to whether each class member worked off-the-clock at all, and

16

if so, whether TWC was (or should have been) aware of the uncompensated work such that

17

TWC could be liable for it.” (Opp. At 2). The Court agrees. Looking at the named

18

Plaintiffs alone, their off-the-clock claims do not derive from Defendant’s common policy

19

or practice, but rather out of individualized experiences with their supervisors. Plaintiffs’

20

off-the-clock claims depend largely on whether their supervisors instructed them to work

21

off-the-clock, as well as whether their supervisors were aware of Plaintiffs’ off-the-clock

22

work. See Stearns v. Tickemtaster Corp., 655 F.3d 1013, 1020 (9th Cir. 2011) (“It is clear

23

that considering whether questions of law or fact common to class members predominate

24

begins, of course, with the elements of the underlying cause of action.”). Each of the four

25

named Plaintiffs had different supervisors, and though the outcomes of their experiences

26

were largely the same, determining whether their claims raised triable issues of fact

27

necessitated in-depth analysis of their individual depositions, including individualized

28

accounts of conversations with their supervisors. At trial, each Plaintiff would need to
10
17-cv-1513 DMS (AGS)

1

testify regarding their experiences with their supervisors. Moreover, each Plaintiff would

2

need to prove TWC had knowledge of the off-the-clock work, necessitating testimony from

3

each of their supervisors. The putative class includes over 800 class members. This class

4

is not “sufficiently cohesive to warrant adjudication by representation.” See Vinole, 571

5

F.3d at 944.

6

b. Meal Periods and Rest Break Claims

7

Plaintiffs contend Defendant’s meal break policy is unlawful, and therefore meets

8

the predominance and commonality requirements. (Reply at 4). However, as this Court

9

noted in its order on summary judgment, Plaintiffs failed to demonstrate Defendant’s meal

10

break policy was facially unlawful. (ECF No. 70 at 10).

11

In the absence of a facially unlawful policy, Plaintiffs nevertheless contend Plaintiffs

12

and class members were subject to TWC’s “common policy and/or practice” of not

13

allowing transferring or ending of calls, causing Plaintiffs delayed meal breaks. (MCC at

14

3). Similarly, Plaintiffs contend TWC’s “policies and practices inhibited Plaintiffs and

15

class members from taking their rest breaks,” because they “closely monitored call volume

16

and call time” leading to “constant pressure” and a “corporate culture” deterring its

17

employees from taking breaks. (MCC at 3). Thus, Plaintiffs contend all potential class

18

members were “expected to skip their breaks in order to keep working and answering

19

customer calls, in violation of California law.” (Id.). Nevertheless, this Court did not find

20

evidence of such a practice when deciding Defendant’s earlier motion for summary

21

judgment. (ECF No. 70 at 10).

22

Though some of the named Plaintiffs demonstrated evidence of their meal and rest

23

period claims claims, they fail to demonstrate commonality for such claims. Plaintiffs

24

point to time records to demonstrate commonality for the meal break claims, but such

25

records do not demonstrate why any delayed or missed breaks were taken. See Green v.

26

Fed. Express Corp., 2015 WL 3825302, *2 (9th Cir. 2015) (affirming district court’s denial

27

of class certification of the plaintiff’s meal break class because the plaintiff’s “common

28

method of proof, electronic scans of packages during designated meal breaks, does not
11
17-cv-1513 DMS (AGS)

1

show that FedEx knew or should have known that its employees were working during their

2

break periods.”). Moreover, the case Plaintiffs cite to support using records as a basis to

3

demonstrate commonality involves a defendant with a blanket policy “that does not

4

authorize and permit meal or rest breaks unless customer volume, scheduling and business

5

needs permit, such that employees [are] pressured not to take breaks and are never

6

compensated for missed breaks.” See Brewer v. Gen. Nutrition Corp., 2014 WL 5877695

7

at *6 (N.D. Cal. 2014).

8

Here, Defendant has a lawful meal and rest break policy. Plaintiffs’ only evidence

9

of violations occurred as a result of individualized experiences with long customer

10

escalations, specific instructions from supervisors, and a failure to receive requisite meal

11

premiums.

12

judgment, three of the four named Plaintiffs demonstrated a triable issue of fact regarding

13

their meal break claims because they described instances of delayed breaks in their

14

depositions, stated the reason for delay was due to business, and provided evidence

15

showing their supervisor was aware of the delay. (ECF No. 70 at 10–14). And only one

16

of the named Plaintiffs survived summary judgment on the rest break claim, which

17

similarly hinged on supervisor knowledge. (Id. at 15–16). As with their off-the-clock

18

claims, the elements establishing liability are fact-intensive and vary between employees

19

depending on their experiences with their supervisors. Given the large size of the class,

20

and that employees had different supervisors with different experiences, the meal and rest

21

break claims raise individual issues and are not “sufficiently cohesive to warrant

22

adjudication by representation.” See Vinole, 571 F.3d at 944.

23

As this Court noted in its decision on Defendant’s motion for summary

c. Wage Statements and Waiting Time Penalties

24

Finally, Plaintiffs contend “as a direct result of Defendant not including the time

25

required for Plaintiffs and class members to complete pre-shift activities in their hours

26

worked, Defendant knowingly issued inaccurate wage statements to Plaintiffs and class

27

members, in violation of Labor Code section 226(a).” (MCC at 4). Further, Plaintiffs

28

contend Defendant did not timely pay Plaintiffs and class members who left TWC all
12
17-cv-1513 DMS (AGS)

1

wages due at termination. (Id.). The Wage Statement and Waiting Time Penalties claims

2

derive from the above claims. Because the above claims fail to meet the requirements of

3

commonality and predominance, these claims also fail.

4

3. Typicality and Adequacy

5

Because the Court finds Plaintiff failed to establish commonality for any of their

6

claims, the requirements of typicality and adequacy need not be addressed. See Wang, 709

7

F.3d at 832 (all requirements of Rule 23(a) and one of the three requirements of Rule 23(b)

8

must be shown).

9

B. Rule 23(b) Requirements

10

Certification under Rule 23(b)(3) is proper when “the questions of law or fact

11

common to class members predominate over any questions affecting only individual

12

members, and . . . a class action is superior to other available methods for fairly and

13

efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). As noted above,

14

Plaintiffs’ claims fail to meet the predominance requirement. Therefore, the remaining

15

Rule 23(b) requirements will not be addressed here.

16
17
18

III.

CONCLUSION

For the foregoing reasons, Plaintiffs’ motion for class certification is denied.

19
20
21

IT IS SO ORDERED.
Dated: January 3, 2020

22
23
24
25
26
27
28
13
17-cv-1513 DMS (AGS)