Morgan v. Rohr, Inc.

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 NATHANIEL MORGAN, an individual, Case No.: 20-cv-574-GPC-AHG MICHAEL BEVAN, an individual; 12 individually, and on behalf of others ORDER GRANTING IN PART AND 13 similarly situated,, DENYING IN PART DEFENDANTS’ MOTION FOR DECERTIFICATION 14 Plaintiffs,

15 v. [ECF No. 162] 16 ROHR, INC., a corporation; HAMILTON SUNDSTRAND, d/b/a UTC 17 AEROSPACE 18 SYSTEMS d/b/a COLLINS AEROSPACE; UNITED 19 TECHNOLOGIES CORPORATION, 20 Defendants. 21

22 Pending before the Court is Defendants’ motion for decertification. ECF No. 162. 23 For the reasons that follow, Defendants’ motion is GRANTED IN PART and DENIED 24 IN PART. 25

27 1 BACKGROUND 2 The facts have been recited numerous times at this point in the litigation. Aside 3 from providing a brief introduction, the Court reserves discussion of the facts until they 4 become relevant. 5 The Court certified five class claims as to union employees: First and Second 6 Meal Period Claims, based on (a) auto-deduction/recording of meal periods; (b) rounded 7 meal periods; and (c) failure to pay premiums; Minimum and Overtime Wages Claim, 8 based on (a) auto-deduction of meal periods; (b) rounded meal periods; and (c) regular 9 rate violations; Wage Statement Claim based on earning statements muddled by 10 “inscrutable payroll codes”; and a derivative Unfair Competition Claim. ECF No. 105. 11 The Court remanded Plaintiffs’ Unfair Competition Claim in its Order Granting 12 Plaintiffs’ Motion for Reconsideration, ECF No. 217, and granted Defendants’ Motion 13 for Summary Judgment as to the regular rate subclass of the Minimum and Overtime 14 Wages Class in its Order Granting in Part and Denying in Part Defendants’ Motion for 15 Partial Summary Judgment, ECF No. 221. Additionally, the Court granted in part 16 Plaintiffs’ Motion for Partial Summary Judgment as to Second Meal Period claims for 17 class members working shifts longer than twelve hours and Defendants’ cessation 18 defense. Defendants move for decertification of the remaining classes. 19 LEGAL STANDARD 20 The Court certifies a class where Plaintiffs “establish that ‘there are questions of 21 law or fact common to the class,’ as well as demonstrate numerosity, typicality and 22 adequacy of representation.” Olean Wholesale Grocery Coop., Inc. v. Bumble Bee Foods 23 LLC, 31 F.4th 651, 663 (9th Cir. 2022) (quoting Fed. R. Civ. P. 23(a)). Plaintiffs must 24 also demonstrate “that the class fits into one of three categories. To qualify for the third 25 category, Rule 23(b)(3), the district court must find that ‘the questions of law or fact 26 common to class members predominate over any questions affecting only individual 27 1 members, and that a class action is superior to other available methods for fairly and 2 efficiently adjudicating the controversy.’” Id. (quoting Fed. R. Civ. P. 23(b)) (internal 3 citations omitted). “When one or more of the central issues in the action are common to 4 the class and can be said to predominate, the action may be considered proper under Rule 5 23(b)(3) even though other important matters will have to be tried separately, such as 6 damages or some affirmative defenses peculiar to some individual class members.” Id. at 7 668. On a motion for decertification, Plaintiffs retain the burden to prove that they have 8 met the requirements of Rule 23. Marlo v. UPS, Inc., 639 F.3d 942, 947 (9th Cir. 2011). 9 Where Defendants challenge certification on the basis of an affirmative defense, 10 Plaintiffs “retain the burden of showing that the proposed class satisfies Rule 23, 11 including predominance, but [the Court] considers predominance only as to the 12 [arguments] that Defendants have actually advanced and for which it has presented 13 evidence.” True Health Chiropractic, Inc. v. McKesson Corp., 896 F.3d 923, 931 (9th 14 Cir. 2018). 15 ANALYSIS 16 1. Meal Period Classes 17 The Court certified Plaintiffs’ First and Second Meal Period Classes on the basis of 18 Defendants’ noncompliant timekeeping practices and failure to provide class members 19 with compliant meal periods. Defendants argue that the First and Second Meal Period 20 Classes should be decertified because Plaintiffs have failed to demonstrate commonality 21 and predominance.1 The Court disagrees as to decertification of the First Meal Period 22 23

24 25 1 Defendants do not challenge certification of the meal period classes on the basis of numerosity, typicality, or adequacy of representation. See ECF No. 162-1. Defendants 26 suggest in a footnote that Plaintiffs’ testimony regarding cessation of operations “is not 27 typical of the class,” ECF No. 162-1 at 22 n.22, but this Court granted Plaintiffs’ Partial 1 class, concluding that Plaintiffs’ reliance upon the rebuttable presumption of liability 2 arising from Defendants’ deficient timekeeping, see Donohue v. AMN Servs., LLC, 11 3 Cal. 5th 58, 76 (2021), raises common questions that predominate individual issues. But 4 the Court agrees that the Second Meal Period class must be decertified because 5 Defendants’ waiver argument necessitates excessive, individualized inquiry. 6 A. First Meal Period Class 7 Under California law, employees working shifts longer than five hours must be 8 provided a thirty-minute meal period. Id. at 66. For shifts lasting ten hours or more, a 9 second meal period is required. Id. An employer complies with its meal period 10 obligations “if it relieves its employees of all duty, relinquishes control over their 11 activities and permits them a reasonable opportunity to take an uninterrupted [thirty] 12 minute break, and does not impede or discourage them from doing so.” Brinker Rest. 13 Corp. v. Superior Court, 53 Cal. 4th 1004, 1040 (2012). An employer’s failure to 14 comply entitles employees to premium pay: one hour of pay at the employee’s regular 15 rate of compensation. Donohue, 11 Cal. 5th at 69. However, once reasonable 16 opportunity to take a break has been provided, the employer need not “police meal breaks 17 and ensure no work thereafter is performed.” Id. at 67. There is no meal period 18 violation, for instance, “if an employee voluntarily chooses to work during a meal period 19 after the employer has relieved the employee of all duty.” Id. 20 A rebuttable presumption arises, that an employee was not relieved of duty or 21 provided a meal break, where an employer’s timekeeping records are incomplete or 22 inaccurate. Id. at 76. The presumption does not create automatic liability for employers. 23 Rather, once triggered, the presumption shifts the burden to the employer to plead and 24

25 26 Motion for Summary Judgment as to Defendants’ cessation of operations argument. ECF No. 221 at 11. 27 1 prove that they provided employees with a bona fide opportunity to take a compliant 2 meal break. Id. Because “the law does not expect or require employees to keep their 3 own time records to uncover potential meal period violations,” the consequences 4 stemming from a failure to record meal periods naturally fall to the employer. Id. at 75, 5 81. 6 Plaintiffs’ first meal period claims rely almost entirely upon the Donohue 7 presumption. As evidence of liability, Plaintiffs direct the Court to the deposition 8 testimony elicited from Defendants’ designees under Fed. R. Civ. P. 30(b)(6) and the 9 conclusions of an expert, Teresa Fulimeni, tasked with reviewing Defendants’ 10 timekeeping records. Though Plaintiffs committed, in their trial plan, to supplementing 11 this evidence with “statistically representative employee testimony” as to deficient meal 12 period practices, see ECF No. 81 at 8 (“Plaintiffs will further supplement this evidence 13 with statistically representative employee testimony on employer control in the form of a 14 survey or in the alternative a randomized selection . . . .”), Plaintiffs ultimately declined 15 to conduct surveys or perform sampling, ECF No. 172 at 32. Plaintiffs explain that 16 sampling and surveys were “merely propos[itions]” of “optional tool[s]” and that class- 17 wide liability may be established without reliance on either form of evidence. ECF No. 18 172 at 32. With this concession, the question before the Court is whether Plaintiffs’ 19 expert analysis and Fed. R. Civ. P. 30(b)(6) deposition testimony alone present sufficient 20 grounds for certification of the first meal period class. 21 The Court concludes that they do. Based on this evidence alone, Plaintiffs advance 22 two theories of class-wide liability under the Donohue presumption. First, they argue 23 that Defendants’ use of AutoTime 6 triggers the rebuttable presumption.2 The Court 24 25 2 Prior to October 13, 2019, employees at both of Defendants’ facilities used “AutoTime 26 6” — a timekeeping system pre-programmed to automatically record a thirty-minute 27 meal period for each employee. Employees did not clock in or out for their meal periods, 1 agrees. AutoTime 6 did not track employee meal periods; it automatically deducted 2 them. As a result, under AutoTime 6, employees were not required to punch in and out 3 for meal periods, and Defendants’ timekeeping records did not accurately reflect the 4 length of employee meal periods. Plaintiffs’ expert concluded that this practice 5 accounted for 1,040,699 shifts longer than six hours with meal periods that were “short, 6 late, missing, or ‘auto-deducted.’” ECF No. 164-9 at 7. As this Court concluded in its 7 order on the parties’ motions for summary judgment, these inaccuracies and deficiencies 8 are sufficient to trigger the rebuttable presumption. ECF No. 221 at 12; see also 9 Donohue, 11 Cal. 5th at 79 (concluding that time records reflecting 46,761 deficient meal 10 periods sufficient to trigger presumption). 11 Plaintiffs next argue that Defendants’ use of AutoTime 7 to round employee meal 12 periods triggers the rebuttable presumption. The Court agrees. Because “even a minor 13 infringement of the meal period triggers the premium pay obligation,” Defendants’ 14 “practice of rounding time punches for meal periods is inconsistent with the purpose of 15 the Labor Code provisions and the IWC wage order.” Donohue, 11 Cal. 5th at 68. As 16 the Court noted at summary judgment, under Defendants’ rounding system, “an 17 employee at the Riverside facility, who clocked out for a meal break at 11:01 a.m. and 18 clocked back in at 11:28 a.m., would have their meal break automatically rounded to a 19 full thirty minutes, resulting in three minutes of uncompensated time.” ECF No. 221 at 20 12. Plaintiffs’ expert identified 148,237 meal periods where time rounding masked a 21 noncompliant meal period and concluded that time rounding resulted in an average of 22

23 24 and a thirty-minute meal period was recorded irrespective of an employee’s actual break period. After October 13, 2019, employees at the Riverside facility began using 25 “AutoTime 7,” which required employees to record the start and end times for their meal 26 breaks. Under both systems, employees were required to manually input the start and end times for their second meal period. 27 1 17.8 minutes of unpaid time per shift. ECF No. 164-9 at 9.3 This is sufficient to trigger 2 the rebuttable presumption. ECF No. 221 at 12; see also Donohue, 11 Cal. 5th at 79. 3 With the presumption triggered, the burden of rebuttal falls to Defendants. 4 Although Defendants have deployed a volley of written policies, training materials, 5 depositions, and employee declarations that they claim to be representative testimony, the 6 Court found at summary judgment that this evidence did not, as a matter of law, rebut the 7 Donohue presumption. ECF No. 221 at 16. While this evidence raises triable issues of 8 fact as to whether employees across the Defendants’ facilities were provided with bona 9 fide relief from duty, at this stage in the litigation Plaintiffs may continue to rely on the 10 rebuttable presumption as the foundation of their class-wide theory of liability. 11 Through their reliance on the rebuttable presumption, Plaintiffs satisfy 12 commonality. Whether Plaintiffs’ expert analysis of timekeeping records is sufficient to 13 trigger the presumption, and whether Defendants have produced evidence of bona fide 14 relief sufficient to rebut the presumption, are questions common to the class that “relate[] 15 to a central issue in the [P]laintiffs’ claim.” Olean, 31 F.4th at 665 (citing Wal-Mart 16 Stores, Inc. v. Dukes, 564 U.S. 338, 349–50 (2011)). Moreover, they are questions that 17 may be resolved with common evidence. Courtesy of the Donohue presumption, 18 Defendants’ liability may be determined without significant reliance on individual 19 inquiry. Plaintiffs may invoke the presumption of liability through deposition testimony 20 from 30(b)(6) deponents describing company-wide timekeeping practices and Fulimeni’s 21 expert analysis of Defendants’ timekeeping. And Defendants’ attempt to rebut the 22

23 24 3 Defendants argue that Plaintiffs’ expert failed to identity any meal periods where rounding masked noncompliant meal periods. While Fulimeni’s report is arguably 25 unclear on this point, she notes that her rounding analysis “exclude[d] meal periods 26 where the time rounding increased or did not change the paid time of the employee, which accounted for 62,709 shifts out of 245,529 shifts. ECF No. 164-9 at 9. 27 1 presumption of liability may be resolved through a review of the representative testimony 2 that Defendants have presented, see ECF No. 179 at 6, along with bargaining agreements, 3 written orders, and training materials that were “common to the class,” see Santillan v. 4 Verizon Connect, Inc., No. 3:21-CV-1257-H-KSC, 2022 WL 4596574, at *13 (S.D. Cal. 5 June 13, 2022). Both parties rely upon evidence consistent with a manageable, class- 6 wide determination of liability. 7 Defendants raise four arguments in response. First, Defendants argue that the 8 presumption does not apply because operations ceased during meal periods. But this 9 argument was rejected and foreclosed at summary judgment. ECF No. 221 at 11. 10 Next, Defendants argue that even if the presumption applies, Defendants have 11 rebutted it. But the Court has already declined to adopt that argument, finding that 12 Defendants have not demonstrated rebuttal as a matter of law. ECF No. 221 at 16. 13 Defendants argue in the alternative that determining whether they have sufficiently 14 rebutted the Donohue presumption at trial will require individual inquiry. This argument 15 fails because, as described above, Defendants’ primary rebuttal evidence is subject to 16 class resolution and does not create issues of individual inquiry. Defendants rely in part 17 upon class-wide policies, bargaining agreements, and posted wage orders. All this is 18 common to the class. ECF No. 163-1 at 9. Defendants also rely extensively upon 19 testimony from “[o]ver [thirty] individuals,” including “supervisors for at least [thirteen] 20 departments.” ECF No. 169 at 12–15. Defendants argued at summary judgment as to the 21 representative capacity of this evidence, submitting that “it is the jury’s role to determine 22 whether this testimonial evidence can be extrapolated to the entire class.” Id. at 23 23 (citing Ridgeway v. Walmart Inc., 946 F.3d 1066, 1087 (9th Cir. 2020)). The Court 24 agrees, as it did at summary judgment, that Defendants have made a threshold showing of 25 representative capacity and that the question now falls to a jury. A jury may find that 26 Defendants’ declarations are representative of absent class members and sufficient to 27 1 rebut the presumption of liability, at which point Plaintiffs’ action will fail. Or they may 2 “reject[] that position,” Ridgeway v. Walmart Inc., 946 F.3d 1066, 1087 (9th Cir. 2020), 3 and the presumption of liability will carry the day. In either scenario, the question of 4 liability will be determined in one fell swoop. Cf. Olean, 31 F.4th at 681 (discussing 5 jury’s assessment of expert model reliability). 6 In light of Defendants’ argument at summary judgment as to the representative 7 capacity of their evidence, the Court finds Defendants’ insistence, that rebuttal would 8 involve “individualized issues . . . which would present intractable management 9 problems,” ECF No. 162-1 at 20 (internal quotations omitted), unpersuasive. 10 Representative capacity is not a mask that Defendants may don and doff as they please. 11 At summary judgment, representative capacity provided Defendants the means to fend 12 off class-wide liability. At decertification, it provides the means of holistic, class-wide 13 resolution. 14 Furthermore, while Defendants raise some individual issues as to the Second Meal 15 Period Class which the Court addresses below, they have failed to direct the Court to any 16 evidence of individualized issues regarding the First Meal Period Class that would 17 present intractable management problems. Twice, Defendants cite “intractable 18 management problems,” and twice, Defendants fail to elaborate.4 ECF No. 162-1 at 20; 19 ECF No. 179 at 8. Perhaps Defendants intended to reference evidence not yet presented 20 as “to other [absent] employees.” ECF No. 162-1 at 20. But the Court considers only 21 affirmative defenses that Defendants have “actually advanced and for which [they have] 22 presented evidence.” True Health, 896 F.3d at 931. The Court does not consider 23 24 25 4 To the extent Defendants intended to refer to individualized issues relating to their 26 cessation of operations argument, they fare no better. As discussed above, that argument was rejected at summary judgment. ECF No. 221 at 11. 27 1 defenses that Defendants “might advance or for which it has presented no evidence.” Id. 2 Thus, the specters of arguments not yet raised and individualized issues not yet presented 3 do not persuade the Court that decertification is required. This is especially the case 4 where the discovery deadline has passed, and evidence of such individualized issues, 5 such as voluntary waiver of the first meal period, has not been presented. 6 Defendants submit that Gonzalez v. HUB Int'l Ltd., No. ED CV 20-2600 PA-ASx, 7 2021 WL 3261634, at *5 (C.D. Cal. May 25, 2021), counsels in favor of decertification. 8 ECF No. 162-1 at 16–18; see also Howell v. Leprino Foods Co., No. 1:18CV01404- 9 AWI-BAM, 2022 WL 866213, at *9 (E.D. Cal. Mar. 23, 2022). In Gonzalez, plaintiffs 10 invoked the Donohue presumption as a basis for certification, “stat[ing] that a review of 11 the time records allows them to identify the dates on which an employee did not take a 12 meal break.” No. EDCV202600PAASX, 2021 WL 3261634, at *5. The court held that 13 “Donohue's rebuttable presumption does little to satisfy their burden to establish by a 14 preponderance of the evidence that they have satisfied Rule 23's requirements for class 15 certification.” Id. The Court disagrees with this view. In fact, Donohue creates a 16 rebuttable presumption that class members were denied a compliant meal period and 17 satisfies Rule 23’s requirements for predominance through class-wide proof. The burden 18 to rebut the Donohue presumption through “evidence that employees voluntarily chose to 19 work during off-duty meal periods” rests with Defendants. Defendants in their summary 20 judgment and decertification briefing have not directed the Court to evidence that class 21 members voluntarily waived their first meal period. Rather, Defendants elected to attack 22 liability by demonstrating that their employees always took their meal breaks, not that 23 they waived them. See generally ECF Nos. 162, 163-1, 169, and 179; see also Santillan 24 v. Verizon Connect, Inc., No. 3:21-CV-1257-H-KSC, 2022 WL 4596574, at *13 (S.D. 25 Cal. June 13, 2022). Because arguments and evidence as to waiver of the first meal 26 27 1 period are not before the Court, the Court need not consider them. See True Health, 896 2 F.3d at 931. 3 Finally, even if Defendants’ rebuttal evidence identifies a number of uninjured 4 class members, certification is still warranted. See Olean, 31 F.4th at 668. The en banc 5 court in Olean rejected the “argument that Rule 23 does not permit the certification of a 6 class that potentially includes more than a de minimis number of uninjured class 7 members.”5 Id. at 669. Olean relied on Halliburton Co. v. Erica P. John Fund, Inc., 8 where the Supreme Court “concluded that so long as plaintiffs could show that their 9 evidence is capable of proving the prerequisites for invoking the presumption of reliance 10 (a key element in a securities class action) on a class-wide basis, the fact that the 11 defendants would have the opportunity at trial the rebut that presumption as to some of 12 the plaintiffs did not raise individualized questions sufficient to defeat predominance.” 13 Id. at 668 (citing Halliburton Co. v. Erica P. John Fund, Inc., 573 U.S. 258, 276 (2014)). 14 Here, the Court concludes that Plaintiffs have “show[n] that their evidence is capable of 15 proving the prerequisites for invoking the [Donohue] presumption.” See Olean, 31 F.4th 16 at 668 (citing Halliburton, 573 U.S. at 276)). Additionally, common evidence renders the 17 first meal period claim amenable to class-wide resolution, reducing the danger of 18 individual inquiry posed by Defendants’ rebuttal. As such, to the extent Defendants 19 demonstrate that certain class members are ineligible for premium pay, the Court 20 concludes that such evidence is not sufficient to defeat predominance. 21 22

23 24 5 Defendants “have not argued that the complexity of damages calculations would defeat predominance here, and . . . there is no per se rule that a district court is precluded from 25 certifying a class if plaintiffs may have to prove damages at trial. Olean, 31 F.4th at 681– 26 82. Furthermore, Defendants do not appear to contest the damages portion of Plaintiffs’ trial plan. See ECF No. 81. 27 1 Defendants’ final two arguments for decertification appear to center on the 2 limitations of Plaintiffs’ expert analysis. Citing to Fulimeni’s deposition, Defendants 3 argue that the rounding class must be decertified because Fulimeni failed to provide an 4 opinion as to whether Defendants’ practice of rounding infringed on class members’ meal 5 breaks. ECF No. 162-1 at 24. This misstates the record. When asked about rounding, 6 Fulimeni responded that “[t]he data speaks for itself; there is a column that showed time 7 duration for meal breaks and it would say .5; and there were punches that would indicate 8 otherwise. And so the analysis of that piece was simply comparing the two so, the 9 analysis I prepared was analysis of the data.” ECF No. 163-3 at 655. In her report, 10 Fulimeni explains that her analysis of “[s]hifts . . . rounded for meal periods” excludes 11 “meal periods where the time rounding increased or did not change the paid time of the 12 employee . . . .” ECF No. 164-9 at 9. To the extent Defendants argue that Fulimeni’s 13 rounding analysis does not prove the “an employee was required to take a shorter break,” 14 Defendants are correct. But that fact does not support decertification. For it is 15 Defendants’ burden, after the Donohue presumption has been invoked, to demonstrate 16 that employees voluntarily took shorter breaks. Defendants next contend that Fulimeni 17 offered no opinion as to “whether premiums were owed.” ECF No. 179 at 10 (emphasis 18 omitted). But what Fulimeni’s report lacks, the Donohue presumption provides. Because 19 the Court concludes that Plaintiffs have triggered the rebuttable presumption, class 20 members are presumed to have been denied compliant meal periods. Accordingly, the 21 Court declines to decertify Plaintiffs’ First Meal Period Class. 22 B. Second Meal Period Class 23 24 25 26 27 1 Plaintiffs approach the second meal period much as they did the first, relying upon 2 incomplete timekeeping to invoke the Donohue presumption.6 Specifically, they identify 3 226,733 shifts lasting between ten and twelve hours where no second meal period was 4 recorded. ECF No. 163-3 at 1042. The Court concluded at summary judgment that this 5 showing was sufficient to invoke the presumption. ECF No. 221 at 17–18. 6 Defendants rely upon waiver to rebut the second meal period claims. Because 7 Defendants have pleaded and sufficiently advanced the second meal period waiver 8 theory, the Court must evaluate the consequences of that theory upon predominance. 9 Defendants’ meal period policy states that employees who “work more than [ten] hours 10 in a day, but not more than [twelve] hours” may “waive [their] second meal period.” 11 ECF No. 163-3 at 196–97. Employee declarations and depositions demonstrate that some 12 employees, who worked between ten- and twelve-hour shifts, routinely waived their 13 second meal period so that they “could go home earlier.” See, e.g., ECF No. 163-3 at 492 14 (Winkler Dep.). And it appears that the general waiver practice was “just [to not] take” 15 the second meal period, see ECF No. 163-3 at 572 (Hernandez Dep.), and to inform a 16 supervisor orally or in writing, see, e.g., ECF No. 163-3 at 492 (Winkler Dep.), 560 17 (Meza Dep.); ECF No. 163-5 at 10 (Alvarez Dec.), 27 (Burke Dec.), 34 (Cano Dec.). 18 Defendants’ Human Resources Department explains that if employees did not “manually 19 enter the second meal break,” they would “receive pay for the time spent on the second 20 meal break,” see ECF No. 163-4 at 10 (Harris Dec.); ECF No. 163-4 at 12–13 (Moua 21 Dec.). 22 The record demonstrates that the waiver defense is a significant obstacle to liability 23 and not subject to common evidence. As such, determining whether a missing second 24

25 26 6 Plaintiffs’ opposition to decertification does not address Defendants’ arguments regarding the Second Meal Period. See ECF No. 172. 27 1 meal period was voluntarily waived or improperly denied by management will require 2 individual inquiry. The Court concludes that parsing through 226,733 shifts in this 3 fashion would prove unmanageable, creating individual issues that would destroy 4 predominance. Accordingly, the Court GRANTS the motion to decertify Plaintiffs’ 5 Second Meal Period Class, as it relates to shifts lasting between ten and twelve hours.7 6 2. Minimum and Overtime Wages Class 7 The Court certified Plaintiffs’ Minimum and Overtime Wages Class on the basis of 8 Plaintiffs’ claim that Defendants’ failure to track meal periods resulted in employees 9 being underpaid. ECF No. 105 at 20. Defendants argue that Plaintiffs’ Minimum and 10 Overtime Wages Class must be decertified because the Donohue presumption does not 11 apply to unpaid wages claims and Plaintiffs have failed to produce common evidence to 12 otherwise support class-wide liability. The Court agrees. While Plaintiffs’ Meal Period 13 Classes survived Plaintiffs’ failure to conduct surveys and perform representative 14 sampling, their Minimum and Overtime Wages Class cannot. The Court observed at 15 summary judgment that Donohue distinguished between unpaid meal premiums and 16 unpaid wages. ECF No. 221 at 20. Thus, the Court concluded that the Donohue 17 presumption did not apply to Plaintiffs’ action for unpaid wages. Id. Plaintiffs argued at 18 summary judgment that absent the Donohue presumption, excerpts from employee 19 depositions describing an atmosphere of control could support liability. While the Court 20 acknowledges that excerpts from depositions may have sufficed to create an issue of 21 material fact at summary judgment, resolving that issue of fact at trial will require 22 individualized inquiry into every department, supervisor, and shift. With no class-wide 23

24 7 The Court granted Plaintiffs’ Motion for Partial Summary Judgment as it related to the 25 second meal period claims of employees working longer than twelve hours. Defendants 26 have not demonstrated that employees working shifts longer than twelve hours could waive their second meal period break. 27 1 presumption of liability to assist them, Plaintiffs lack common evidence of control. They 2 have not conducted surveys as to “employer control” as they promised in their trial plan, 3 see ECF No. 81 at 8, and have failed to direct the Court to an adequate substitute for such 4 evidence. 5 Cognizant of this deficiency, Plaintiffs cite Amaral v. Cintas Corp. No. 2, 163 Cal. 6 App. 4th 1157, 1189 (2008), in an attempt to shift the burden to Defendants. Plaintiffs 7 argue that “where an employer fails in its record-keeping obligation, as Defendants did 8 here, the burden shifts to the employer to demonstrate no work was performed.” ECF 9 No. 172 at 18. But that is not Amaral’s holding. Amaral, and the cases it cites, require 10 first that the “employee proves [they] ‘ha[ve] in fact performed work’ that was 11 improperly compensated, and presents enough evidence to allow an inference as to the 12 amount of this work.” 163 Cal. App. 4th at 1189. Only after such proof does the “burden 13 shift[] to the employer to prove the precise amount of work performed or to negate the 14 inference drawn from the employee’s evidence.” Id. Here, Plaintiffs have not 15 demonstrated that class members performed work that was improperly compensated. An 16 employer is liable “for straight pay . . . only when it knew or reasonably should have 17 known that the worker was working through the authorized meal period,” see Brinker, 53 18 Cal. 4th at 1040 n.19 (cleaned up), even where an employer fails its record-keeping 19 obligation, see Donohue 11 Cal. 5th at 68. Because Plaintiffs have presented no evidence 20 of such knowledge, and any attempt to present such evidence would require individual 21 inquiry, Plaintiffs fail to satisfy Amaral’s prerequisite and are not entitled to the burden- 22 shifting mechanism described therein. Accordingly, Plaintiffs have failed to present a 23 class-wide theory of liability and the Court GRANTS Defendants’ Motion for 24 Decertification as to the Minimum and Overtime Wages Class. 25 3. Wage Statement Class 26 27 1 The Court certified the Wage Statement Class on the basis of Defendants’ (1) 2 failure to include the total hours worked during each pay period and (2) inclusion of 3 confusing pay codes that prevented employees from promptly and easily determining the 4 hours worked at each applicable rate of pay without confusion. ECF No. 105 at 42. 5 Defendants raise three arguments for decertification: (1) Plaintiffs have not alleged a 6 predicate violation of Section 226(a); (2) Plaintiffs lack common proof of wage 7 statements; (3) and individualized inquiries are necessary to determine whether wage 8 statements are confusing.8 None are persuasive. 9 Plaintiffs have alleged a predicate violation of California Labor Code § 226(a). 10 They allege that Defendants failed to include the total hours worked during each pay 11 period.9 ECF No. 105 at 40; Cal. Lab. Code § 226(a)(2). Whether the wage statements 12 “provide[d] accurate and complete information about total hours worked” and whether “a 13 reasonable person [could] readily ascertain total hours worked from the statement alone, 14 without reference to other documents or information,” are common questions. 15 Woodworth v. Loma Linda Univ. Med. Ctr., 93 Cal. App. 5th 1038, 1059 (2023), cert. 16 granted, 314 Cal. Rptr. 3d 491 (2023). And though it may require testimony from some 17 employees, determining whether the wage statements are confusing “is not a subjective, 18 individualized inquiry.” Id. The Court declines to decertify the Wage Statement Class. 19 CONCLUSION 20 21 22 8 Defendants’ fourth argument, that Plaintiffs lack typicality because “neither of Plaintiffs 23 received a wage statement with the pay code ‘Ot3Rdshf@2X’”, ECF No. 162-1 at 41, was addressed at summary judgment. This Court held at summary judgment that the 24 “‘confusing’ pay codes” enumerated in the Class Certification Order was “not intend[ed] 25 to [be] exhaustive . . . .” ECF No. 221 at 31 . 26 9 A motion for class certification is an inappropriate forum for Defendants’ related merits arguments. Amgen Inc. v. Conn. Ret. Plans & Tr. Funds, 568 U.S. 455, 466 (2013). 27 1 Accordingly, the Court GRANTS Defendants’ Motion to Decertify the Minimum 2 ||and Overtime Wages Class and the portion of the Second Meal Period Class pertaining to 3 || shifts between ten and twelve hours. The Court DENIES Defendants’ motion as to the 4 || First Meal Period Class and the Wage Statement Class. 5 6 IT IS SO ORDERED. 7 8 || Dated: December 20, 2023 <=

10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 17 28 20-cv-574-GPC-AHG