1 2 3 UNITED STATES DISTRICT COURT 4 EASTERN DISTRICT OF CALIFORNIA 5 6 ANDREW HOWELL, on behalf of CASE NO. 1:18-cv-01404-AWI-BAM himself and on behalf of all other 7 similarly situated individuals ORDER ON PLAINTIFF’S MOTION 8 Plaintiff FOR CLASS CERTIFICATION AND ON DEFENDANTS’ MOTION TO STRIKE 9 v.
10 LEPRINO FOODS COMPANY, a (Doc. No. 84, 93) Colorado Corporation; LEPRINO 11 FOODS DAIRY PRODUCTS COMPANY, a Colorado Corporation; 12 and DOES 1–50, inclusive,
13 Defendants
14 15 16 Plaintiff Andrew Howell (“Howell”) filed suit against two cheese manufacturing 17 companies, Leprino Foods Company and Leprino Foods Dairy Products Company (collectively, 18 “Leprino”), alleging that Leprino violated California wage-and-hour laws by enforcing policies 19 and practices that are facially unlawful and that deprive hourly employees of timely and compliant 20 meal and rest periods.1 Howell worked as an hourly employee for Leprino from August 1987 to 21 March 2015. 22 Currently before the Court are two motions: (1) Howell’s motion for class certification, 23 and (2) Leprino’s motion to strike select evidence used in Howell’s motion. Having reviewed and 24 considered all the briefing and evidence submitted by the parties, the Court will deny Leprino’s 25 motion to strike and grant in part and deny in part Howell’s motion for class certification. 26
27 1 In their class certification briefing, the parties, including both Defendants (responding as one), make no distinction between the Leprino entities. Rather, the parties treat both Defendants as if they are a single “Leprino” entity. The 28 Court will adopt that practice in this order. 1 2 BACKGROUND 3 According to the Court’s review of the parties’ class certification briefing and evidence, 4 the facts for purposes of adjudicating the certification motion are as follows. Gomez v. J. Jacobo 5 Farm Labor Contractor, Inc., 334 F.R.D. 234, 242 (E.D. Cal. 2019) (citing In re Hydrogen 6 Peroxide Antitrust Litigation, 552 F.3d 305, 313 (3d Cir. 2008) (“Although the district court’s 7 findings for the purpose of class certification are conclusive on that topic, they do not bind the 8 fact-finder on the merits.”)). 9 Leprino manufactures and processes cheese and dairy ingredients at its Tracy facility in 10 Tracy, California. The Tracy facility, which is one of several Leprino facilities in the State of 11 California, generally operates twenty-four hours a day, seven days a week, and employs over 300 12 employees. Unlike Leprino’s other facilities, the Tracy facility operates a single production line 13 that runs through the facility’s production departments. Due to the time sensitive nature of making 14 its cheese, Tracy’s production line generally does not stop running except for routine cleaning or 15 emergencies. 16 Work Shift Policies and Practices 17 Each shift for Leprino’s hourly employees is scheduled for approximately 8.5 hours 18 including a 30-minute non-paid period reserved for meals. Leprino’s corporate policy provides 19 that non-exempt hourly employees “must not work while not on the clock or be on the clock 20 (punched in) while not working.” Every hourly employee is required to comply with the same 21 time clock and time punch procedures outlined in Leprino’s Handbook. Leprino’s time clocks 22 record the exact hour and minute of each punch, but for purposes of payroll, the time punches of 23 hourly employees are rounded to the nearest quarter hour, meaning that a time punch at 7:53 a.m. 24 would be rounded up to 8:00 a.m. and a time punch at 7:52 a.m. would be rounded down to 7:45 25 a.m. These employees are subject to discipline if they punch in more than seven minutes before 26 the start of their shifts or punch out more than seven minutes after the end of their shifts because in 27 either situation unauthorized overtime pay would be generated. 28 Leprino tracks its employees’ lateness and absences pursuant to an Attendance Policy. 1 Leprino’s hourly employees are required to punch in by the start of their shifts, and punching in 2 just a minute after their scheduled start times is grounds for discipline. Leprino also requires its 3 hourly employees to put on uniforms and protective equipment and to wash their hands and 4 sanitize before proceeding with their work assignments. To complete these preparations in a 5 timely fashion, hourly employees regularly arrive and punch in up to seven minutes before their 6 scheduled start times. Because everyone cannot all punch in at once, lines typically form in front 7 of the time clocks during this seven-minute period. Leprino’s corporate policy requires non- 8 exempt hourly employees to change into and out of uniform while on the clock, but many 9 employees arrive twenty to thirty minutes before their scheduled start times to change into their 10 gear and then punch in during the seven-minute pre-shift period to avoid being late. 11 Meal and Rest Break Policies and Practices 12 Teamsters Local No. 439 represents Tracy’s hourly employees, and a collective bargaining 13 agreement (“CBA”) primarily governs the terms and conditions of their work. The CBA includes a 14 “meal period” provision that grants each hourly employee “a meal period not more than five (5) 15 hours after the beginning of his or her shift.” 2 Additionally, the CBA includes a “rest period” 16 provision that provides each hourly employee with a “rest period of reasonable duration (15 17 minutes) in accordance with present practices during the first and second half of work of an eight 18 (8) hour shift.”3 If Leprino interrupts an employee with a work-related matter during a meal or rest 19 break, then the employee is entitled to a premium payment, another break, or both. 20 Many hourly employees have break relief, which means other workers come in to take 21 over their duties while they go on break. However, according to several putative class members, 22 2 The CBA’s meal period provision states: 23 Except in emergencies, each employee shall be granted a meal period not more than five (5) hours after the beginning of his or her shift. The meal period shall not be paid time unless the Employer, because of the 24 nature of the work, requires an on-duty meal period, which shall be paid time. Any employee who is required by the Employer to delay his or her meal period more than five (5) hours after the beginning of his or her 25 shift shall be compensated at one and one-half times the rate of pay from the fifth hour until the meal period is taken. 26 3 The CBA’s rest period provision states: All bargaining unit employees shall receive a rest period of reasonable duration (15 minutes) in accordance 27 with present practices during the first and second half of work of an eight (8) hour shift. The Employer shall not schedule an employee for a rest period during the first hour of work. When an employee is told or 28 scheduled to work nine (9) or more hours he or she shall receive an additional rest period between the eighth 1 hourly employees must still remain on-call during their breaks to attend to quality and production 2 line issues. Due to the importance of the production line’s continuous operation, hourly employees 3 are required to shift their responsibilities to attend to the production line whenever an issue arises. 4 For example, when excess cheese builds up on the production line, hourly employees must take 5 off the cheese temporarily through a process called “binning” or “bulking off” to prevent spillage 6 onto the floor. In-person, radio, and intercom communications are used to alert employees when 7 immediate assistance is needed. According to several putative class members, hourly employees 8 have to be ready and willing to respond to supervisors at all times, even during meal and rest 9 breaks. 10 Plaintiff’s Lawsuit and Causes of Action 11 Howell filed his lawsuit against Leprino on April 24, 2018. Doc. No. 1. Howell’s 12 Complaint raised seven causes of action on behalf of himself and a putative class: (1) failure to 13 pay minimum wages, Cal. Labor Code § 1194 and California Industrial Welfare Commission 14 Wage Order 8- 2001 (“Wage Order 8”); (2) failure to pay wages for all hours worked, Cal. Labor 15 Code § 204; (3) failure to pay overtime wages, Cal. Labor Code §§ 510, 1194, and Wage Order 8; 16 (4) failure to provide legally compliant meal and rest periods or compensation in lieu thereof, Cal. 17 Labor Code §§ 226.7, 512, and Wage Order 8; (5) failure to pay separation wages, Cal. Labor 18 Code §§ 201– 203; (6) failure to furnish accurate wage statements, Cal. Labor Code § 226; and (7) 19 unfair competition law violations, Cal. Bus. & Profs. Code § 17200, et seq. Id. Following rulings 20 on two Rule 12(c) motions and one Rule 56 motion, the only remaining claim is Plaintiff’s unfair 21 competition law claim based on alleged meal and rest period violations under Labor Code § 226.7. 22 Howell now seeks certification of the class for this claim. Doc. No. 84. 23 24 LEGAL STANDARD 25 A class action is a procedural mechanism that allows for representative litigation. Amchem 26 Prods. v. Windsor, 521 U.S. 591, 613-19 (1997). This means that one or more class members may 27 “litigate on behalf of many absent class members, and those class members are bound by the 28 outcome of the representative’s litigation.” 1 William Rubenstein, Newberg on Class Actions 1 § 1:1 (5th ed. 2012) [hereinafter, “Newberg on Class Actions”] (citing Supreme Tribe of Ben Hur 2 v. Cauble, 255 U.S. 356, 363 (1921)). “The class action is ‘an exception to the usual rule that 3 litigation is conducted by and on behalf of the individual named parties only.’” Comcast Corp. v. 4 Behrend, 569 U.S. 27, 33 (2013) (quoting Califano v. Yamasaki, 442 U.S. 682, 700–01 (1979)). 5 Class actions are governed by Rule 23 of the Federal Rules of Civil Procedure, which 6 imposes a two-step test for deciding whether a class may be certified. Under the first step, the 7 court determines whether the moving party has established four perquisites: 8 (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; (3) the claims or defenses of the 9 representative parties are typical of the claims or defenses of the class; and (4) the 10 representative parties will fairly and adequately protect the interests of the class. 11 Fed. R. Civ. P. 23(a)(1)–(4). If the prerequisites of Rule 23(a) are met, the court considers 12 whether the proposed class action meets at least one of the three provisions of Rule 23(b). Fed. R. 13 Civ. P. 23(b). Relevant here, Rule 23(b) states that a class action may be maintained if “the court 14 finds that the questions of law or fact common to class members predominate over any questions 15 affecting only individual members, and that a class action is superior to other available methods 16 for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). 17 A party moving to certify a class action bears the burden of affirmatively demonstrating 18 compliance with Rule 23. Comcast, 569 U.S. at 33. “The Rule ‘does not set forth a mere pleading 19 standard,’” but instead demands the moving party establish through evidentiary proof that the 20 proposed class action satisfies the prerequisites of Rule 23(a) and one of the provisions of Rule 21 23(b). Id. (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011)). Courts generally 22 require the moving party to demonstrate by a preponderance of the evidence that class certification 23 is appropriate. Newberg on Class Actions § 7:21 (citing cases, including Martin v. Sysco Corp., 24 325 F.R.D. 343, 354 (E.D. Cal. 2018) (“While Rule 23 does not specifically address the burden of 25 proof to be applied, courts routinely employ the preponderance of the evidence standard.”)). 26 To ensure the moving party has “satisfied” its burden, the district court must conduct a 27 “rigorous analysis.” Comcast, 569 U.S. at 33. Because the “class determination generally 28 involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff’s 1 cause of action,” this rigorous analysis may include “prob[ing] behind the pleadings” and “overlap 2 with the merits of the plaintiff’s underlying claim.” Id. at 33–34. Yet, “‘[n]either the possibility 3 that a plaintiff will be unable to prove his allegations, nor the possibility that the later course of the 4 suit might unforeseeably prove the original decision to certify the class wrong, is a basis for 5 declining to certify a class which apparently satisfies’ Rule 23.” Sali v. Corona Reg’l Med. Ctr., 6 909 F.3d 996, 1004−05 (9th Cir. 2018) (quoting Blackie v. Barrack, 524 F.2d 891, 901 (9th Cir. 7 1975)). Ultimately, the decision to grant or deny a motion for class certification under Rule 23 is 8 committed to the broad discretion of the trial court. Bateman v. Am. Multi–Cinema, Inc., 623 9 F.3d 708, 712 (9th Cir. 2010). 10 11 DISCUSSION 12 A. Leprino’s Motion to Strike 13 Leprino moves to strike eight declarations submitted by Howell in support of his motion 14 for class certification on the ground that they “contain demonstrable false and misleading 15 statements, which are contradicted significantly by the declarants’ deposition testimony.” Doc. 16 No. 93-1 at 4. In opposition, Howell contends that there is no justification to strike the declarations 17 because any discrepancies between the declarations and depositions goes to the weight of their 18 testimony, not to whether their testimony should be stricken. Doc. No. 94 at 8. Howell further 19 claims that sanctions in the amount of $11,625.00 should be imposed against Leprino on the 20 ground that it knowingly, unreasonably, and vexatiously multiplied the proceedings in this case. 21 Doc. No 94 at 29-33. In reply, Leprino argues that it provided the Court with proper authority to 22 strike these declarations. Doc. No. 95 at 4. 23 “Motions to strike are generally viewed with disfavor and will usually be denied unless the 24 allegations in the pleading have no possible relation to the controversy and may cause prejudice to 25 one of the parties.” Butcher v. City of Marysville, 398 F. Supp. 3d 715, 728 (E.D. Cal. 2019) 26 (citing Sliger v. Prospect Mortg., LLC, 789 F. Supp. 2d 1212, 1216 (E.D. Cal. 2011)). Where 27 declarants in a class certification motion provide deposition testimony that is inconsistent with 28 earlier declarations, courts have assessed the strengths and weakness of those declarations, along 1 with all other properly submitted evidence, while considering whether the requirements of Rule 23 2 have been met. See Joint Equity Comm. of Inv'rs of Real Estate Partners, Inc. v. Coldwell Banker 3 Real Estate Corp., 281 F.R.D. 422, 427 (C.D. Cal. 2012) (citing Merriweather v. Sw. Research 4 Inst., 2010 U.S. Dist. LEXIS 117297, *10 (S.D. Ind. 2010)) (ruling that instead of striking the 5 challenged declaration, the court will simply consider them in the normal course and give them the 6 weight they deserved). 7 Here, the Court finds insufficient grounds to strike or disregard the declarations because 8 they directly relate to the claims and defenses in this case. The Court will instead assess the 9 strengths and weaknesses of the challenged declarations—along with all other properly submitted 10 evidence—as it considers whether Howell’s motion for class certification satisfies the 11 requirements of Rule 23. Joint Equity, 281 F.R.D. at 427. 12 13 B. Class Definition 14 Rule 23 implicitly requires the proposed class to be ascertainable by reference to objective 15 criteria, at least for class certification under Rule 23(b)(3). See Marcus v. BMW of North 16 America, LLC, 687 F.3d 583, 592-93 (3d Cir. 2012); Jones v. ConAgra Foods, Inc., 2014 U.S. 17 Dist. LEXIS 81292, 2014 WL 2702726, *8 (N.D. Cal. 2014); Lilly v. Jamba Juice Co., 308 F.R.D. 18 231, 236 (N.D. Cal. 2014); Newberg on Class Actions § 3:1. While courts have “ascribe[d] widely 19 varied meanings” to the term “ascertainability,” Briseno v. ConAgra Foods, Inc., 844 F.3d 1121, 20 1124 (9th Cir. 2017), there are three linguistic formulations commonly used to express the test for 21 definiteness: 22 [F]irst, that the class must be "precise, objective, and presently ascertainable"; second, that 23 the class must be "adequately defined and clearly ascertainable"; and third, that the class 24 can be ascertained "by reference to" or "based on" "objective criteria." Newberg on Class Actions § 3:3 (citations omitted). The ascertainability requirement “protects 25 absent plaintiffs in two ways — by enabling notice to be provided where necessary and by 26 defining who is entitled to relief; and a definable class protects defendants by enabling a final 27 judgment that clearly identifies who is bound by it.” Id. at § 3:1. The movant for class certification 28 1 bears the burden of sufficiently pleading a sufficiently ascertainable class. See Whitaker v. 2 Bennett Law, PLLC, 2016 U.S. Dist. LEXIS 122873, 2016 WL 4595520, at *1 (S.D. Cal. 2016); 3 Brazil v. Dell Inc., 585 F. Supp. 2d 1158, 1167 (N.D. Cal. 2008); Newberg on Class Actions § 3:3. 4 While the ascertainability requirement provides for an “objectively ascertainable” class, the Ninth 5 Circuit does not require that the proposed class also be “administratively ascertainable.” Briseno, 6 844 F.3d at 1123-26. “Administrative feasibility means that identifying class members is a 7 manageable process that does not require much, if any, individual factual inquiry.” Newberg on 8 Class Actions § 3:3. 9 Howell seeks certification of the following class: 10 All non-exempt hourly workers who are currently employees, or formerly have been employed, as non-exempt hourly employees at Leprino’s Tracy plant in 11 Tracy, California, at any time within four years prior to the filing of the original 12 complaint until the date the Court grants certification. 13 The contours of the class are ascertainable based on objective criteria, namely, whether 14 someone was employed by Leprino as a non-exempt hourly employee at the Tracy facility. 15 Leprino does not contest that the proposed class is ascertainable. Accordingly, the Court finds that 16 the proposed class is ascertainable. 17 18 C. Numerosity 19 Pursuant to Rule 23(a)(1), a class action is maintainable only if “the class is so numerous 20 that joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). In general, courts find 21 the numerosity requirement satisfied when a class includes at least 40 members. Pena v. Taylor 22 Farms Pac., Inc., 305 F.R.D. 197, 213 (E.D. Cal. 2015) (citing Rannis v. Recchia, 380 F. App'x 23 646, 651 (9th Cir. 2010)); Collins v. Cargill Meat Sols. Corp., 274 F.R.D. 294, 300 (E.D. Cal. 24 2011). Based on Howell’s representations, the proposed class includes at least 300 individuals. 25 This satisfies the numerosity requirement of Rule 23(a)(1). See Gomez, 334 F.R.D. at 251 26 (explaining that an exact number of class members is not required for certification if it is 27 reasonable to believe that joinder would be impracticable); Collins, 274 F.R.D. at 300. 28 Leprino contends that the proposed class is not sufficiently numerous because “Plaintiff 1 has failed to identify any putative class members that experienced an on-duty meal period or a late 2 meal period due to the policies and practices alleged.” Doc. No. 92, at 54:2-3. The Court 3 disagrees. Howell presented evidence that some of the hourly employees’ meal breaks were not 4 timely, see Doc. No. 84 at 18, and that class members were required to attend to their duties and 5 the production line during meal and rest periods. See Doc. Nos. 84 at 19, 97 at 34-37. 6 Accordingly, the Court finds the numerosity requirement satisfied. 7 8 D. Commonality 9 Pursuant to Rule 23(a)(2), a class action is maintainable only if “there are questions of law 10 or fact common to the class.” Fed. R. Civ. P. 23(a)(2). To meet the commonality requirement, 11 class claims must be based on a “common contention . . . capable of classwide resolution.” Wal- 12 Mart Stores, 564 U.S. at 350. This means that determination of the “truth or falsity” of that 13 contention “will resolve an issue that is central to the validity of each one of the claims in one 14 stroke.” Id. Certification does not turn on “the raising of common ‘questions’—even in droves— 15 but, rather the capacity of a classwide proceeding to generate common answers apt to drive the 16 resolution of the litigation.” Id. (quoted source omitted). In other words, not “every question of 17 law or fact must be common to the class; all that Rule 23(a)(2) requires is ‘a single significant 18 question of law or fact.’” Abdullah v. U.S. Sec. Assocs., Inc., 731 F.3d 952, 957 (9th Cir.2013) 19 (emphasis omitted) (quoting Mazza v. Am. Honda Motor Co., 666 F.3d 581, 589 (9th Cir. 2012)). 20 The commonality requirement has similarities with and serves as the foundation to the 21 commonality-predominance requirement of Rule 23(b)(3). See Newberg on Class Actions § 3:27 22 (explaining that Rule 23(b)(3)’s commonality-predominance requirement “obviously builds on” 23 Rule 23(a)(2)’s commonality requirement). Because of the overlap between these two 24 requirements, the Court will analyze Rule 23(a)(2)’s commonality requirement below when the 25 Court analyzes Rule 23(b)(3)’s commonality-predominance requirement. See Gomez, 334 F.R.D. 26 at 251. 27 28 1 E. Typicality 2 Pursuant to Rule 23(a)(3), a class action may be maintained only if the “claims or defenses 3 of the representative parties are typical of the claims or defenses of the class.” Fed. R. Civ. P. 4 23(a)(3). “[T]ypicality determines whether a sufficient relationship exists between the injury to 5 the named plaintiff and the conduct affecting the class so that the court may properly attribute a 6 collective nature to the challenged conduct.” Newberg on Class Actions § 3:29. The test for 7 typicality is (1) “whether other members have the same or similar injury,” (2) “whether the action 8 is based on conduct which is not unique to the named plaintiffs,” and (3) “whether other class 9 members have been injured by the same conduct.” Wolin v. Jaguar Land Rover N. Am., LLC, 10 617 F.3d 1168, 1175 (9th Cir. 2010) (citations omitted). 11 Leprino does not contest Howell’s assertion that his claims are typical of those of the class. 12 Howell has alleged and produced evidence showing that he and other putative class members 13 suffered the same or similar injuries. For example, Howell presented evidence that his and other 14 class members’ meal breaks were not timely, that they were required to attend to the production 15 line and other duties during meal and rest break periods, and that they were not provided premium 16 pay or additional break periods following these interruptions. Moreover, Howell has alleged and 17 produced evidence showing that he and other putative class members were injured by Leprino’s 18 same conduct—i.e., the alleged on-call breaks, Leprino’s time punch rounding policies, pre-shift 19 duties, and alleged failures to provide premium pay and additional breaks. Howell has not made 20 claims based on conduct that is unique to him, but instead raises claims based on Leprino’s 21 policies and practices as they apply to the class. Thus, Howell’s allegations and proffered evidence 22 satisfy the typicality requirement. 23 F. Adequacy of representation 24 Pursuant to Rule 23(a)(4), a class action is maintainable only if the “the representative 25 parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). The 26 term “parties” refers to both the class representative and class counsel. In re Conseco Life Ins. Co. 27 LifeTrend Ins. Sales & Mktg. Litig., 270 F.R.D. 521, 531 (N.D. Cal. 2010). The Ninth Circuit 28 tests the adequacy as follows: “(1) do the named plaintiffs and their counsel have any conflicts of 1 interest with other class members and (2) will the named plaintiffs and their counsel prosecute the 2 action vigorously on behalf of the class?” Ellis v. Costco Wholesale Corp., 657 F.3d 970, 985 3 (9th Cir. 2011) (quoted source omitted). “Adequate representation depends on, among other 4 factors, an absence of antagonism between representatives and absentees, and a sharing of interest 5 between representatives and absentees.” Id. The standard for adequacy splits into two prongs: 6 adequacy of the proposed class representative and adequacy of the attorneys seeking appointment 7 as class counsel. Newberg on Class Actions § 3:54. 8 1. Adequacy of Class Representative 9 The Court finds that Howell is an adequate class representative. First, despite Leprino’s 10 contentions to the contrary, Howell is not conflicted. He declares his primary interest is to prove 11 Leprino violated California labor laws in ways affecting the members of the proposed class. 12 Howell Decl. ¶¶ 19, 25-26. Howell is not seeking recovery from Leprino’s supervisors or other 13 employees, but only from Leprino itself. Howell’s stated interest is to correct the alleged legal 14 wrongs of Leprino without jeopardizing the interests of other class members. Id. at ¶ 19. Howell 15 intends to continue in his representative capacity until there is a resolution in this case that is in the 16 best interest of the proposed class. Id., ¶¶ 21-26. 17 Second, Howell has prosecuted the action vigorously on behalf of the class. He has sought 18 out and met with counsel to discuss the facts of the case, answered any questions about his 19 experience working for Leprino, and assisted in reviewing documents and responding to Leprino’s 20 production requests. Id., ¶¶ 21-22. Howell also sat for a deposition, where he demonstrated an 21 understanding of the essence of this lawsuit. 22 2. Adequacy of Class Counsel 23 The Court finds that Howell’s counsel are adequate representatives. The Paris Law Firm 24 has certified numerous wage-and-hour class actions and has trial experience in the state of 25 California. Parris Decl. ¶¶ 3−6. This Court has also recognized The Paris Law Firm as adequate 26 representatives in other wage-and-hour class action lawsuits against Leprino. Perez v. Leprino 27 Foods Co., 2021 U.S. Dist. LEXIS 2165, *43 (E.D. Cal. Jan. 6, 2021); Vasquez v. Leprino Foods 28 Co., 2020 U.S. Dist. LEXIS 56425, *35 (E.D. Cal. Mar. 30, 2020). The Court also finds that The 1 Paris Law Firm appears to be willing and able to commit sufficient resources to representing the 2 proposed class. Accordingly, the adequacy of class counsel is satisfied in this case. 3 4 G. Commonality-Predominance 5 The commonality and predominance requirement of Rule 23(b)(3) asks whether the class 6 members’ interests are “sufficiently cohesive to warrant adjudication by representation.” Amchem 7 Prods. v. Windsor, 521 U.S. 591, 623 (1997). The inquiry “logically entails two steps”: first, 8 whether the issues in the case are individual or common; and, second, whether the common issues 9 predominate over the individual issues. Newberg on Class Actions § 4:50. 10 As for the first step, an individual issue is one where “the members of a proposed class will 11 need to present evidence that varies from member to member.” Tyson Foods, Inc. v. Bouaphakeo, 12 577 U.S. 442, 453 (2016) (citing Newberg on Class Actions § 4:50). By contrast, a common issue 13 is one either where “the same evidence will suffice for each member to make a prima facie 14 showing,” id., or, similarly, where the issue is “susceptible to generalized, class-wide proof.” In re 15 Nassau County Strip Search Cases, 461 F.3d 219, 227 (2d Cir. 2006). 16 As for the second step, common issues likely will not predominate if “a great deal of 17 individualized proof” would need to be introduced to address most or all of the elements of a 18 claim, Gomez, 334 F.R.D. at 256 (citing Klay v. Humana, Inc., 382 F.3d 1241, 1255 (11th Cir. 19 2004)), or “a number of individualized legal points” would need to be established after common 20 questions were resolved, id. (citing Klay, 382 F.3d at 1255), or “the resolution of . . . [an] 21 overarching common issue breaks down into an unmanageable variety of individual legal and 22 factual issues.” Id. (quoting Cooper v. Southern Co., 390 F.3d 695, 722 (11th Cir. 2004)). By 23 contrast, common questions likely will predominate if “individual factual determinations can be 24 accomplished using computer records, clerical assistance, and objective criteria — thus rendering 25 unnecessary an evidentiary hearing on each claim,” id. (citing Smilow v. Southwestern Bell 26 Mobile Systems, Inc., 323 F.3d 32, 40 (1st Cir. 2003)), or “when adding more plaintiffs to the 27 class would minimally or not at all affect the amount of evidence to be introduced.” Id. (citing 28 Newberg on Class Actions § 4:50). A finding of predominance will generally not be defeated 1 merely because there is a need to make individualized damage determinations. See Just Film, Inc. 2 v. Buono, 847 F.3d 1108, 1121 (9th Cir. 2017); Leyva v. Medline Indus. Inc., 716 F.3d 510, 514 3 (9th Cir. 2013). 4 Here, Howell presents two sets of common questions—one set concerning his “late meal 5 break” claim and one set concerning his “on-call break” claim. The Court will undertake the 6 commonality-predominance inquiry by analyzing both of Howell’s claims, and his theories of 7 liability for each, in turn. Erica P. John Fund, Inc. v. Halliburton Co., 563 U.S. 804, 809 (2011) 8 (“Considering whether questions of law or fact common to class members predominate begins, of 9 course, with the elements of the underlying cause of action.”); Jimenez v. Allstate Ins. Co., 765 10 F.3d 1161, 1165−66 (9th Cir. 2014) (“Whether a question will drive the resolution of the litigation 11 necessarily depends on the nature of the underlying legal claims that the class members have 12 raised.”). 13 1. Howell’s Late Meal Break Claim 14 “Under California law, employers must generally provide employees with one 30-minute 15 meal period that begins no later than the end of the fifth hour of work[.]” Donohue v. AMN 16 Servs., LLC, 11 Cal. 5th 58, 61 (2021) (citing Lab. Code § 512(a)). If an employer does not 17 provide an employee with a compliant meal period, then “the employer shall pay the employee 18 one additional hour of pay at the employee’s regular rate of compensation for each workday that 19 the meal … period is not provided.” Id. (citing Lab. Code, § 226.7(c)). Even a minor infringement 20 of the meal period triggers the premium pay obligation. Id. at 68. 21 Howell claims that the following is a common question that will drive the resolution of the 22 litigation: whether Leprino’s time punch rounding policy and attendance policy, taken together, 23 result in untimely meal periods for the putative class members in violation of California law. 24 Leprino argues that Howell’s commonality argument fails because he has not submitted sufficient 25 evidence showing that Leprino systematically provided the putative class members with late meal 26 periods without appropriate compensation. 27 Whether a question will drive the resolution of the litigation necessarily depends on the 28 nature of the underlying legal claims that the class members have raised. Jimenez, 765 F.3d at 1 1165 (citing Parsons v. Ryan, 754 F.3d 657, 676 (9th Cir. 2014)). Here, the Court finds that 2 Howell has not carried his burden of demonstrating that a uniform corporate policy denying 3 employees the opportunity to take timely meal breaks could be proven on a classwide basis. 4 Ordonez v. Radio Shack, Inc., 2013 U.S. Dist. LEXIS 7868, *23 (C.D. Cal. 2013) (finding no 5 uniform corporate policy denying employees the opportunity to take meal breaks that could be 6 proven on a classwide basis because evidence showing that “some employees may have been 7 deprived of the opportunity to take an uninterrupted meal break, directly or indirectly, does not 8 amount to a ‘policy and practice’ capable of determining [defendant’s] liability on a classwide 9 basis”). Howell does not contend that the CBA provision regarding meal breaks violates 10 California law.4 Instead, Howell contends that the dual implementation of Leprino’s rounding 11 policy and attendance policy causes or has the effect of hiding late meal breaks. However, Howell 12 has submitted only two declarations from putative class members stating that their meal breaks 13 were untimely,5 Doc. No. 84-1 at 18:18-19 (Dewalt Decl. at ¶ 9; French Decl. at ¶ 10), and one of 14 these declarants subsequently stated under oath that she was never denied a meal break within the 15 first five hours of her work shift. (French Dep. 191:19-195:8). This evidence alone is not enough 16 to carry the burden in showing a facility-wide policy or practice. Perez, 2021 U.S. Dist. LEXIS 17 2165 at *23-24; Garcia v. Lift, 2021 U.S. Dist. LEXIS 68195, *86 (E.D. Cal. Apr. 6, 2021). 18 Howell suggests that in light of Donohue, Leprino’s rounding and attendance policies 19 create a presumption of meal period violations. However, Donohue’s rebuttable presumption 20 “does little to satisfy [Howell’s] burden to establish by a preponderance of the evidence that [he 21 has] satisfied Rule 23’s requirements for class certification.” Gonzalez v. Hub Int'l, 2021 U.S. 22 Dist. LEXIS 147298, *14 (C.D. Cal. May 25, 2021). As Donohue itself recognizes, “If the records 23 are incomplete or inaccurate — for example, the records do not clearly indicate whether the 24 4 Regarding meal periods, the CBA states: 25 Except in emergencies, each employee shall be granted a meal period not more than five (5) hours after the beginning of his or her shift. The meal period shall not be paid time unless the Employer, because of the 26 nature of the work, requires an on-duty meal period, which shall be paid time. Any employee who is required by the Employer to delay his or her meal period more than five (5) hours after the beginning of his or her 27 shift shall be compensated at one and one-half times the rate of pay from the fifth hour until the meal period is taken. 28 5 Howell initially submitted three declarations in support of this point with his motion for class certification on June 1 employee chose to work during meal periods despite bona fide relief from duty — then the 2 employer can offer evidence to rebut the presumption.” Donohue, 11 Cal. 5th at 7. Here, Leprino 3 opposed certification with evidence that it insisted that its employees take their meal periods by 4 the fifth hour. Doc. No. 92:30. Leprino also opposed certification with testimony from employees 5 who state that Leprino did not stop them from taking their meal breaks by the fifth hour. Doc. No. 6 92 at 30 (Anaya Dep. 64:18-21; Allan Dep. 75:13-20; French Dep. 66:14-18; Travers Dec. ¶¶ 4, 7; 7 Yates Dec. ¶ 6). 8 Rather than demonstrating the existence of a uniform policy of depriving employees of 9 timely meal breaks, the evidence before the Court presents numerous possibilities as 10 to why Leprino’s rounding and attendance policies may cause untimely meal breaks during a given 11 shift. Ordonez, 2013 U.S. Dist. LEXIS 7868 at *24. This evidence is insufficient for the Court to 12 conclude that Leprino denied its employees the opportunity to take timely meal breaks on a 13 classwide basis. 14 Having concluded that Howell’s late meal break theory does not satisfy the commonality 15 requirement, the question of whether common questions predominate over individualized ones is 16 moot. 17 2. Howell’s On-Call Break Claim 18 Under California law, “employees must not only be relieved of work duties [during 19 breaks], but also be freed from employer control over how they spend their time.” Augustus v. 20 ABM Sec. Servs., Inc., 2 Cal. 5th 257, 270 (2016); see also Brinker Rest. Corp. v. Superior Court, 21 53 Cal. 4th 1004, 1038-39 (2012) (stating that the “fundamental employer obligations associated 22 with a meal break” are “to relieve the employee of all duty and relinquish any employer control 23 over the employee and how he or she spends the time”). In Augustus, the California Supreme 24 Court explained that if employees are effectively “on call” during meal or rest periods because 25 conditions require them to be ready and capable of being summoned to action, then the breaks 26 provided are not control-free and, consequently, not legally compliant. Augustus, 2 Cal. 5th at 27 270. Employers who fail to provide duty free meal or rest breaks must pay the employee “one 28 additional hour of pay at the employee’s regular rate of compensation for each workday that the 1 meal or rest period [was] not provided.” Cal. Lab. Code § 226.7. 2 Howell claims that the following facts collectively demonstrate that Leprino’s hourly 3 employees are “on-call” during their meal and rest breaks: (1) Leprino’s policies stress “quality” 4 and makes “quality” the class members’ responsibility, effectively requiring them to attend to the 5 production line even during breaks; (2) Leprino’s bulking-off process requires employees to 6 remain alert and responsive to supervisors during their breaks; (3) Leprino instructs its employees 7 to always answer their supervisor’s questions and follow their instructions, with no exceptions 8 made for breaks; (4) many workers are assigned radios and are told they must carry it with them at 9 all times, including during their breaks; (5) Leprino installed an intercom in the breakroom so 10 workers could communicate with the floor while on break; (6) putative class members are 11 disciplined, suspended, or even terminated if they fail to respond to questions or return to work 12 when asked; and (7) the testimony of the putative class members confirm that Leprino’s policies 13 and practices have created a culture of on-call breaks. Collectively, these facility-wide policies and 14 practices, according to Howell, naturally pose a common question that is central to his claim: 15 namely, in light of Leprino’s uniform policies and practices, are the class members actually on call 16 during breaks? Said differently, are the class members not truly freed from Leprino’s control 17 during their breaks? Vasquez, 2020 U.S. Dist. LEXIS 56425 at *43. 18 Unlike the late meal break claim, the Court finds that Howell has presented sufficient 19 evidence to satisfy the commonality requirement for his on-call break claim. Howell, through 20 several witness declarations and depositions from hourly employees who are putative members of 21 the class, presented evidence showing that the class was subjected to Leprino’s foregoing policies 22 and practices. Evon v. Law Offices of Sidney Mickell, 688 F.3d 1015, 1029 (9th Cir. 2012) 23 (“[C]ommonality requires the plaintiff to demonstrate the class members ‘have suffered the same 24 injury.’”); Staton v. Boeing Co., 327 F.3d 938, 954 (9th Cir. 2003) (“[T]he breadth and 25 consistency of class counsel's initial evidence places the district court's finding of commonality 26 well within that court's discretion.”). For example, many putative class members stated that they 27 and other employees were regularly contacted during their breaks about work-related matters, be it 28 via radio, intercom, or in person. Allan Depo. at 68:11–69:11; Anaya Depo. at 69:7–18, 149:10– 1 150:25); Chhann Depo. at 72:18–25, 74:3–25, 88:16–92:23, 108:4–111:3; DeWalt Depo. at 2 41:25–42:8, 204:4–205:7; Gutierrez Depo. at 97:20–98:21, 195:7–196:1; Hurst Depo. at 87:16–22, 3 92:4–8, 146:13–147:6, 149:17–21, 150:8–151:9, 154:18–155:16; Rosales Depo. at 125:21–126:3; 4 Sun Depo. at 130:23–131:5, 132:20–133:4; Smith Depo. at 94:1–21, 97:25–98:18, 188:18–189:16; 5 Travers Depo. at 85:11–87:15, 89:5–90:9. Additionally, many putative class members stated that 6 they were required to attend to their duties and the production line at all times, even during meals 7 and rest periods. Anaya Decl. at ¶ 6; Allan Decl. at ¶ 4; French Decl. at ¶ 9; DeWalt Decl. at ¶¶ 4, 8 7; Chhann Decl. at ¶ 5; Guaydacan Decl. at ¶ 4; Smith Decl. at ¶ 5; Rosales Decl. at ¶ 5; Howell 9 Decl. at ¶¶ 17–18. 10 In light of this evidence, there exists a common question as to whether Leprino’s uniform 11 policies and practices compel employees to remain on-call during their meal and rest periods. 12 This common question is central to Howell’s claim and one that can be answered with common 13 proof regarding common injury. If at trial the jury answers yes, then Leprino is liable to the class 14 for meal and rest period violations; if the answer is no, then Leprino is not liable. This satisfies 15 the commonality requirement under Rule 23(a)(2). Perez, 2021 U.S. Dist. LEXIS 2165 at *31 16 (finding there exists a common question as to whether Leprino’s uniform policies and practices 17 compel employees to remain on-call during their meal and rest periods); Vasquez, 2020 U.S. Dist. 18 LEXIS 56425 at *43-*45 (same); see also Wright v. Renzenberger, Inc., 2017 U.S. Dist. LEXIS 19 225209, *19 (C.D. Cal. Sep. 30, 2017) (finding common question as to whether drivers were on- 20 call during rest periods based on uniform policy); Ayala v. U.S. Xpress Enters., 2017 U.S. Dist. 21 LEXIS 125247, *29 (C.D. Cal. July 27, 2017) (“[L]iability will turn on whether ‘securing the 22 load’ and responding to alerts messages rises to the level of employee control that would turn any 23 break periods provided into impermissible on call breaks, that would consequently require 24 compensation.”). 25 Leprino’s arguments against commonality are not persuasive. First, Leprino presents 26 testimonies and declarations from putative class members that purportedly stand for the 27 proposition that “there is no policy requiring them to remain available ‘at the ready,’ or ‘on-call’ 28 during breaks.” Doc. No. 92 at 40 (citing Rosales Dep. at 116:22-25; 124:21-125:3; Anaya Dep. at 1 119:11-14; 120:8-11; DeWalt Dep. at 215:16-217:6; Allan Dep. at 73:10-21; Guaydacan Dep. at 2 69:10- 15.; French Dep. at 134:22-25; 138:5-13). However, the testimonies Leprino references do 3 not stand for that proposition; they merely state they have not seen anything in writing that 4 requires them to remain reachable or on-call during their breaks. Furthermore, among the eight 5 declarations Leprino references, two are from supervisors, one is from a former senior accounting 6 clerk in the Administrative Department, and one is from an employee who had requested on the 7 record that his declaration be withdrawn. The remaining four declarations are from current hourly 8 employees whose statements the Court is reluctant to place significant weight in given the “risk of 9 bias and coercion” inherent in such testimony. Shaw v. AMN Healthcare, Inc., 326 F.R.D. 247, 10 269 (N.D. Cal. 2018); see Garcia v. Cent. Coast Rests., Inc., 2022 U.S. Dist. LEXIS 38803, at *24 11 (N.D. Cal. Mar. 4, 2022) (“[The declarations present reliability concerns, as all the declarations 12 come from current employees.”). The Court’s concern is heightened by the fact that among these 13 four hourly employees, two subsequently gave testimony that cast doubt on their declarations that 14 Leprino has no on-call break policy. Travers Depo. at 85:11–87:15 (describing radios going off in 15 breakroom), 89:5–90:9 (radios are on and used during breaks); Gutierrez Depo. at 97:20–98:21 16 (responding to binning off and production stopping), 195:7–196:1 (responding to radios). 17 Second, Leprino contends that it does not have a de facto on-call break policy because not 18 every employee was subject to every kind of interruption. For example, not every employee 19 carried a radio, not every employee was required to watch the line, not every employee was 20 required to partake in the bulking-off process, and not every employee recalled ever being 21 contacted through the intercom system. However, as this Court stated in Perez, Howell’s 22 “integrated theory does not depend on that being the case.” Perez, 2021 U.S. Dist. LEXIS 2165 at 23 *33. Rather, Howell seeks recovery on the basis that “combining all these individual practices 24 creates a uniform policy that itself violates the law as to all putative class members.” Id. In that 25 sense, “even if an individual practice is not directly applicable to all employees—such as those 26 who did not carry radios—evidence of that practice may be reasonably considered by the 27 factfinder as one part of an environment where employees are effectively on-call at all times.” Id. 28 at *33-34. 1 Finally, Leprino argues that even if the putative class members were “on-call” during their 2 breaks, Howell has not presented sufficient evidence that they were subject to Leprino’s “control” 3 during those times. Leprino specifies that the putative class members were not subject to Leprino’s 4 “control” because they “routinely pursued personal endeavors during break time without issue, 5 without the need to seek permission, without the need to remain available, and without first having 6 to change out of uniforms.” Doc. No. 92 at 49:11-13 (citing Hurst Dec. ¶ 9; Gutierrez Dec. ¶ 9; 7 Renteria Dec. ¶ 12; Jachlich Dec. ¶ 9; Yates Dec. ¶ 8; Vandermeulen Dec. ¶ 5). Additionally, 8 Leprino claims it “did not require the few employees who carried radios to respond to radio calls 9 during breaks.” Doc. No. 92 at 49:23-24 (citing Guaydacan Dep. 94:6-21; 144:24-145:15; 10 Gutierrez Dec. ¶ 11; Hurst Dec. ¶ 8). However, this “control” argument suffers from the same 11 problems discussed above; that is, Leprino’s referenced declarations and testimonies either are not 12 from putative class members or present credibility and weight concerns, and Howell presented 13 testimonial evidence to the contrary. Additionally, the California Supreme Court in Augustus 14 expressly distinguished Mendiola v. CPS Sec. Sols., Inc., 60 Cal. 4th 833 (2015), a case Leprino 15 heavily relies on for its multifactor test on whether an employer has control over an employee 16 during on-call time. Augustus, 2 Cal. 5th at 271 n.13. Augustus distinguished Mediola because (1) 17 the eight-hour on-call shifts in Mediola were “significantly different from breaks, which are short 18 in duration, break up work periods, and thereby protect employees’ health and safety” and (2) the 19 “factors relevant to the extent of employer control during an on-call shift of eight hours or more 20 are inapposite in the context of a rest or meal period.” Id. 21 Having found the commonality requirement satisfied with respect to Howell’s on-call 22 break theory, the Court turns to the predominance requirement of Rule 23(b)(3). As previously 23 stated, a central common question regarding this theory is whether Leprino’s uniform policies and 24 practices effectively resulted in employees being placed on call during breaks. The Court finds 25 that the common question predominates over any individualized inquires because answering this 26 common question does not require a great deal of individualized proof but can instead be done 27 with the aforementioned facility-wide policies and practices. 28 Leprino contends that individualized questions predominate because individualized 1 inquiries are necessary to determine each putative class member’s interpretation and 2 understanding of the aforementioned policies, and whether the putative class members were still 3 under Leprino’s control during break time. See Doc. No. 92 at 39, 52. The Court disagrees. 4 Leprino’s argument is unavailing because the Court has already found that Howell’s alleged 5 policies and practices are sufficiently facility-wide. Howell presented sufficient objective evidence 6 that Leprino’s policies and practices regarding product quality, bulking off, responsiveness to 7 supervisors, discipline, and radio and intercom use collectively create a common question, and this 8 common question predominates over individualized inquiries into the members’ subjective 9 understanding of these policies and practices. Based on the evidence presented from the parties, 10 the Court is not persuaded that Leprino’s policies and practices varied significantly amongst most 11 putative class members. 12 In sum, the Court concludes that Howell’s on-call break claim satisfies the commonality 13 and predominance requirements of Rule 23(a) and Rule 23(b)(3). 14 15 H. Superiority 16 Certification under Rule 23(b)(3) also requires a finding that “a class action is superior to 17 other available methods for the fair and efficient adjudication of the controversy.” Fed. R. Civ. P. 18 23(b)(3). To evaluate superiority, the court shall consider four “pertinent” factors: (1) the class 19 members’ interests in individually controlling the prosecution or defense of separate actions; (2) 20 the extent and nature of any litigation concerning the controversy already begun by or against 21 class members; (3) the desirability or undesirability of concentrating the litigation of the claims in 22 the particular forum; and (4) the likely difficulties in managing a class action. Fed. R. Civ. P. 23 23(b)(3)(A)−(D). “A consideration of these factors requires the court to focus on the efficiency 24 and economy elements of the class action so that cases allowed under subdivision (b)(3) are those 25 that can be adjudicated most profitably on a representative basis.” Zinser v. Accufix Research 26 Inst., Inc., 253 F.3d 1180, 1190 (9th Cir. 2001) (citation omitted). “A class action is the superior 27 method for managing litigation if no realistic alternative exists.” Valentino v. Carter–Wallace, 28 Inc., 97 F.3d 1227, 1234 (9th Cir. 1996). In contrast, “[i]f each class member has to litigate 1 numerous and substantial separate issues to establish his or her right to recover individually a class 2 action is not superior.” Zinser, 253 F.3d at 1192. 3 Here, Howell argues that class treatment is superior, and Leprino does not substantively 4 address the issue in opposition. The Court finds the Rule 23(b)(3) factors weigh in favor of 5 certification. There is no indication of putative class members wanting to individually control the 6 prosecution of separate actions. Nor is there indication of other actions raising the same issues 7 based on the same facts pertaining to Leprino’s Tracy facility. There is also no indication here 8 that managing this action as a class action would be unmanageable. To the contrary, these claims 9 seem particularly apt for class adjudication through use of records and data in Leprino’s 10 possession. See Kamar v. Radio Shack Corp., 254 F.R.D. 387, 405 (C.D. Cal. 2008) (finding that 11 inquiries into class members’ actual wages would be relatively manageable because defendant’s 12 payroll records contain that data). Finally, class litigation is superior here, as it often is in wage- 13 and-hour lawsuits, because “the individual damages of each employee are too small to make 14 litigation costs effective.” Wright v. Renzenberger, Inc., 2017 U.S. Dist. LEXIS 225209, *36 15 (C.D. Cal. 2017). 16 17 ORDER 18 Accordingly, IT IS HEREBY ORDERED that: 19 1. Howell’s certification motion (Doc. No. 84) is GRANTED IN PART and DENIED 20 IN PART as follows: 21 a. Howell’s late lunch breaks claim is NOT CERTIFIED for class aggregation 22 under Rule 23; 23 b. Howell’s on-call breaks claim is CERTIFIED for class aggregation under 24 Rule 23(b)(3); 25 c. The class is defined as follows: 26 All non-exempt hourly workers who are currently employees, or formerly have been employed, as non-exempt hourly employees at 27 Leprino’s Tracy plant in Tracy, California, at any time within four years prior to the filing of the original complaint until the date the 28 Court grants certification. 1 d. Andrew Howell is APPOINTED as the class representative. 2 e. The Parris Law Firm and The Downey Law Firm are APPOINTED as class 3 counsel; 4 2. Leprino’s Motion to Strike (Doc. No. 93) is DENIED; 5 3. The parties must promptly MEET AND CONFER about the submission of a joint 6 stipulated class notice and distribution plan. Within twenty-one (21) days of this 7 order, the parties must FILE either a stipulated class notice and distribution plan or 8 a notice that no stipulation can be agreed to. If the parties cannot agree to a class 9 notice or distribution plan, then Howell must FILE a proposed class notice and 10 distribution plan within thirty-five (35) days of this order, and Leprino shall have 11 fourteen (14) days following Howell’s filing to FILE any objections, and Howell 12 shall have seven (7) days following Leprino’s filing to FILE a reply; and 13 3. This case is REFERRED BACK to the assigned magistrate judge for further 14 scheduling and other proceedings consistent with this order. 15 16 IT IS SO ORDERED. □□ 17 |Dated: _March 22, 2022 7 Sz, 7 Cb Lec "SENIOR DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28 22