Van Bebber v. Dignity Health

• Court: District Court, E.D. California
• Decided: March 30, 2021
• Docket: 1:19-cv-00264
• Status: Unknown

Opinion

Case 1:19-cv-00264-DAD-EPG Document 67 Filed 03/30/21 Page 1 of 43

8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

11 ROBERT VAN BEBBER, on behalf of Case No. 1:19-cv-00264-DAD-EPG himself and all others similarly situated 12 and the general public, FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT PLAINTIFFS’ 13 Plaintiff, MOTION FOR LEAVE TO FILE A THIRD AMENDED COMPLAINT BE DENIED AND 14 v. THAT PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION BE GRANTED IN PART 15 DIGNITY HEALTH, a California AND DENIED IN PART Corporation, dba MERCY MEDICAL 16 CENTER—MERCED, and DOES 1 to (ECF. No. 35, 45) 100, inclusive, 17 OBJECTIONS, IF ANY, DUE WITHIN Defendants. FOURTEEN (14) DAYS 18

19 Currently pending before the Court are a motion for leave to file a Third Amended

20 Complaint (ECF No. 35) and a motion for class certification (ECF No. 45) filed by Plaintiffs

21 Robert Van Bebber, Rachel Clover, and Martha Ochoa (“Plaintiffs”). District Judge Dale A.

22 Drozd referred the motions to the undersigned for issuance of findings and recommendations.

23 (ECF Nos. 28, 58.) For the following reasons, the Court recommends that Plaintiffs’ motion for

24 leave to amend be denied and Plaintiffs’ motion for class certification be granted in part and

25 denied in part.

26 ///

27 ///

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1 I. BACKGROUND

2 A. Plaintiffs’ Claims

3 This is a wage-and-hour class action suit stemming from various alleged state labor law

4 violations by Defendant Dignity Health (“Defendant”), an acute care hospital in Merced,

5 California. (See ECF No. 1-29.)

6 Plaintiff Robert Van Bebber initiated this action by filing a proposed class action

7 complaint in the Superior Court for the County of Merced on July 13, 2017. (ECF Nos. 1-1, 1-2,

8 1-3.) The complaint alleged multiple violations of California wage and hour statutes on behalf of

9 Robert Van Bebber individually and all others similarly situated, as well as on behalf of the

10 general public. (Id.) Plaintiff Van Bebber filed a First Amended Complaint on September 13,

11 2017, and a Second Amended Complaint on January 14, 2019, adding Rachel Clover and Martha

12 Ochoa as Plaintiffs. (ECF Nos. 1-4, 1-29.) The operative Second Amended Complaint alleges

13 causes of action for: 1) Violation of Business and Professions Code §§ 17200, et seq.; 2) Failure

14 to Pay All Wages (Labor Code §§ 200, et seq., 218, 226, 510, 511, 1194, 1198, and 2802); 3)

15 Failure to Pay All Wages Due to Illegal Rounding; 4) Failure to Provide Meal Breaks (Labor

16 Code §§ 226.7 and 512, et seq.); 5) Inaccurate Wage Statements (Labor Code § 226); 6) Violation

17 of Labor Code §§ 200, et seq.; 7) Failure to Provide Rest Breaks (Labor Code § 226.7; Wage

18 Order 5); and 8) Waiting Time Penalties (Labor Code § 200, et seq.) (ECF No. 1-29.)

19 B. Removal to Federal Court

20 Defendant filed a notice of removal on February 22, 2019. (ECF No. 1.) On March 22, 21 2019, Plaintiffs filed a motion to remand this case to state court. (ECF No. 9.) On August 30,

22 2019, District Judge Drozd entered an order denying Plaintiffs’ motion for remand. (ECF No. 23.)

23 The order reasoned, in relevant part, that Plaintiffs’ claim for failure to pay overtime is preempted

24 by § 301 of the Labor Management Relations Act (“LMRA”). (Id.)

25 On February 4, 2020, District Judge Drozd issued a Standing Order in Light of Judicial

26 Emergency in the Eastern District of California. (ECF No. 28.) The standing order explained that 27 District Judge Drozd was now the only active district judge in this division and implemented

28 certain emergency procedures. (Id.) Among other things, the standing order referred motions for 2 Case 1:19-cv-00264-DAD-EPG Document 67 Filed 03/30/21 Page 3 of 43

1 class certification pursuant to Federal Rule of Civil Procedure 23 to the magistrate judge assigned

2 to the case. (Id.)

3 C. Plaintiffs’ Motion for Leave to Further Amend Complaint

4 On June 8, 2020, Plaintiffs filed their motion for leave to file a Third Amended

5 Complaint. (ECF No. 35.) According to the motion, Plaintiffs seek to amend the operative

6 complaint to add a Fair Labor Standards Act (“FLSA”) claim pursuant to 29 U.S.C. § 201 et seq.

7 due to District Judge Drozd’s order finding that the LMRA preempted Plaintiffs’ state law

8 overtime claims because the new FLSA claims are not preempted. (ECF No. 35-1 at 6-7.) Further,

9 Plaintiffs seek to amend the complaint to include two additional subclasses for Defendant’s

10 failure to properly calculate the regular rate for purposes of missed meal and rest period claims.

11 (Id.) Defendant filed an opposition on June 23, 2020, and Plaintiffs filed a reply on June 30, 2020.

12 (ECF Nos. 39, 40.) District Judge Drozd entered an order on January 25, 2021, referring

13 Plaintiffs’ motion for leave to amend to the undersigned for issuance of findings and

14 recommendations. (ECF No. 58.)

15 This motion is now pending before this Court for issuance of findings and

16 recommendations.

17 D. Defendant’s Motion for Partial Summary Judgment

18 Defendant filed a motion for partial summary judgment on August 26, 2020. (ECF No.

19 43.) Defendant’s motion seeks judgment on Plaintiffs’ claim for unpaid wages due to illegal

20 rounding, arguing that Defendant’s practice of rounding time entries to the nearest quarter-hour is 21 lawful because it is neutral on its face and as applied. (Id.) Plaintiffs filed an opposition to the

22 motion for partial summary judgment on September 22, 2020, and Defendant filed a reply on

23 September 28, 2020. (ECF Nos. 46, 47.)

24 The motion for summary judgment is now pending before District Judge Drozd.

25 E. Plaintiffs’ Motion for Class Certification

26 On September 4, 2020, Plaintiffs filed their motion for class certification. (ECF No. 45.) 27 The proposed overarching main class is defined as “[a]ll non-exempt hourly employees of

28 Defendant who worked at the Mercy Medical Center Merced facility at least one (1) day from 3 Case 1:19-cv-00264-DAD-EPG Document 67 Filed 03/30/21 Page 4 of 43

1 July 13, 2013 through the date of class certification order.” (Id. at 2.) Specifically, Plaintiffs seek

2 certification of following classes and subclasses:1

3 Class 1: All non-exempt hourly employees of Defendant who worked at the Mercy 4 Medical Center Merced facility at least one (1) day of more than eight (8) hours in a day or more than forty (40) hours in a week from July 13, 2013 through the date 5 of class certification order and who worked overtime and earned additional pay during the overtime week, and were not paid premium overtime and/or double 6 time at the employee’s regular rate of pay. (“Regular Rate/Overtime Class”); 7 Class 2: All non-exempt hourly employees of Defendant who worked at least one 8 (1) day at the Mercy Medical Center Merced facility from July 13, 2013 to the date of the class certification order and who were paid pursuant to Defendant’s 9 rounding policy and practice. (“Rounding Class”). 10 Sub-Class 1: All non-exempt hourly clinical employees of Defendant who worked at 11 least one (1) day at the Mercy Medical Center Merced facility from July 13, 2013 to the date of the class certification order and who were paid pursuant to 12 Defendant’s rounding policy and practice. (“Rounding Clinical Sub-Class”). 13 Class 3: All non-exempt hourly patient care employees of Defendant who worked at 14 least one (1) day at the Mercy Medical Center Merced facility and worked at least one (1) standby shift from January 14, 2015 to the date of the class certification 15 order. (“On Call/Standby Class”). 16 Class 4: All non-exempt hourly employees of Defendant who worked at least one 17 (1) day at the Mercy Medical Center Merced facility from July 13, 2013 through the date of class certification order who were not provided legally-compliant 18 second meal period breaks when working more than a ten (10) hour shift (“Second Meal Break Class”); 19 Sub-Class 2: 20 All hourly non-exempt employees of Defendant who worked at Mercy Medical Center Merced facility at least one (1) day from July 13, 2013 through 21 date of class certification order, who signed a written meal period waiver. (“Meal Period Waiver Sub-class”); 22 Sub-Class 3: 23 All non-exempt hourly clinical employees of Defendant who worked at least one (1) day at the Mercy Medical Center Merced facility from July 13, 2013 24 through the date of class certification order who were not provided legally- compliant second meal period breaks. (“Meal Break Sub-Class”); 25 1 Plaintiffs have not indicated that there are any members of the proposed overarching main class that do not 26 fall within one of the classes and subclasses, and the parties’ briefing did not address certification of the overarching main class. Therefore, the Court will only consider certification of the proposed classes and subclasses. See Aldapa v. 27 Fowler Packing Co., Inc., 323 F.R.D. 316, 324 fn.2 (E.D. Cal. 2018), order clarified, 2018 WL 10322910 (E.D. Cal. Feb. 16, 2018) (declining to certify main class where plaintiffs had not indicated that there were any members of the 28 main class that did not fall within one of the subclasses). 4 Case 1:19-cv-00264-DAD-EPG Document 67 Filed 03/30/21 Page 5 of 43

1 Sub-Class 4: All California employees who worked for Defendant from July 13, 2013 2 through the date of class certification order who were paid a missed meal period payment in a week that the employee also received a non-discretionary bonus or 3 other type of pay along with their regular wages. ("Meal Period Regular Rate Sub- Class); 4 Class 5: 5 All non-exempt hourly employees of Defendant who worked at least one (1) day at the Mercy Medical Center Merced facility from July 13, 2016 through 6 the date of class certification order who were provided a paystub (a.k.a. wage statement) from Defendant (“Pay Stub Class”). (This is a derivative class for all 7 classes and sub-classes).

8 Class 6: All non-exempt hourly clinical employees of Defendant who worked at 9 least one (1) day at Mercy Medical Center Merced facility at any time from January 14, 2015 through the date of class certification, who were not provided 10 with 10-minute rest periods for every 4 hours of work or major fraction thereof. (“Rest Break Class”) 11 Sub-Class 5: 12 All California employees who worked for Defendant from July 13, 2013 through the date of class certification order who were paid a missed rest period 13 payment in a week that the employee also received a non-discretionary bonus or other type of pay along with their regular wages. ("Rest Period Regular Rate Sub- 14 Class);

15 Class 7: All California based non-exempt hourly employees of Defendant who 16 worked for Defendant at any time from January 14, 2016 through the date of class certification, who are no longer employed by Defendant and were not paid all their 17 earned wages. (“Waiting Time Penalty Class”). (This is a derivative class for all classes and sub-classes). 18 (Id. at 2-5.) (Footnotes omitted.) 19 Proposed subclasses 4 and 5, the Meal Period Regular Rate Sub-Class and Rest Period 20 Regular Rate Sub-Class, are not included in Plaintiffs’ operative complaint and are the subject of 21 Plaintiff’s motion for leave to amend. (ECF No. 45 at 4; see also ECF No. 1-29.) 22 Defendant filed an opposition to the motion for class certification on November 17, 2020, 23 and Plaintiffs filed a reply on January 18, 2021. (ECF Nos. 53, 57.) 24 This motion is also now pending before this Court for issuance of findings and 25 recommendations.

26 F. Hearing on Motions to Amend and for Class Certification

27 On January 29, 2021, the Court held a hearing via Zoom video conference on the motion

28 for leave to amend and the motion for class certification. (ECF No. 29.) Counsel Janelle Carney 5 Case 1:19-cv-00264-DAD-EPG Document 67 Filed 03/30/21 Page 6 of 43

1 and Adam Rose appeared on behalf of Plaintiffs and counsel Richard Simmons and Daniel

2 McQueen appeared on behalf of Defendant. (Id.)

3 II. MOTION TO AMEND

4 The Court begins with Plaintiffs’ motion for leave to file a Third Amended Complaint to

5 add a new claim under the FLSA and to add two new subclasses. (ECF No. 35.) A. Legal Standards 6 Federal Rule of Civil Procedure 15(a) permits a party to amend a pleading once as a 7 matter of course within twenty-one days of service, or if the pleading is one to which a response 8 is required, twenty-one days after service of a motion under Rule 12(b), (e), or (f). Fed. R. Civ. P. 9 15(a)(1). “In all other cases, a party may amend its pleading only with the opposing party’s 10 written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2). 11 The Federal Rules of Civil Procedure provide that leave to amend pleadings “shall be 12 freely given when justice so requires.” Fed. R. Civ. P. 15(a)(2). Nevertheless, granting or denying 13 leave to amend a complaint is in the discretion of the Court. Swanson v. United States Forest 14 Service, 87 F.3d 339, 343 (9th Cir. 1996). Discretion over amendment is particularly broad where 15 a party has already had one or more opportunities to amend their complaint. DCD Programs, Ltd. 16 V. Leighton, 833 F.2d 183, 186 n. 3 (9th Cir. 1987) (citations omitted). “In deciding whether 17 justice requires granting leave to amend, factors to be considered include the presence or absence 18 of undue delay, bad faith, dilatory motive, repeated failure to cure deficiencies by previous 19 amendments, undue prejudice to the opposing party and futility of the proposed amendment.” 20 Moore v. Kayport Package Exp., Inc., 885 F.2d 531, 537 (9th Cir. 1989) (citing Foman v.

21 Davis, 371 U.S. 178, 182 (1962); DCD Programs, Ltd., 833 F.2d at 186 ).

22 “Prejudice to the opposing party is the most important factor.” Jackson v. Bank of Haw.,

23 902 F.3d 1385, 1397 (9th Cir. 1990) (citing Zenith Radio Corp. v. Hazeltine Research Inc., 401 U.S. 321, 330–31 (1971)). “The party opposing leave to amend bears the burden of showing 24 prejudice.” Serpa v. SBC Telecomms., 318 F. Supp. 2d 865, 870 (N.D. Cal. 2004) (citing DCD 25 Programs, Ltd., 833 F.2d at 187); see Clarke v. Upton, 703 F. Supp. 2d 1037, 1041 (E.D. Cal. 26 2010); see also Alzheimer’s Inst. of Am. v. Elan Corp., 274 F.R.D. 272, 276 (N.D. Cal. 2011). 27 /// 28 6 Case 1:19-cv-00264-DAD-EPG Document 67 Filed 03/30/21 Page 7 of 43

1 A party may be precluded from amending a pleading on the basis of undue delay where

2 the matters asserted in the amendment were known to them from the beginning of the suit. Komie

3 v. Buehler Corp., 449 F.2d 644, 648 (9th Cir. 1981) (finding that trial court did not abuse its

4 discretion in denying leave to amend where moving party filed motion to amend thirty-one

5 months after the answer was filed). While delay alone cannot justify denying leave to amend, it is sufficient grounds to deny leave to amend where other factors, such as dilatory motive, bad faith, 6 prejudice, or futility, also weigh against amendment. Hurn v. Ret. Fund Tr. of Plumbing, Heating 7 & Piping Indus. of S. California, 648 F.2d 1252, 1254 (9th Cir. 1981). 8 B. Parties’ Positions 9 Plaintiffs argue that leave to amend should be freely granted under Federal Rule of Civil 10 Procedure 15(a) and there is no prejudice to Defendant because the amendment is based on the 11 same operative acts as originally pled. (ECF No. 35-1 at 7-8.) Further, there has been no undue 12 delay because Plaintiffs reached out to Defendant at the end of 2019 to see if it would be willing 13 to stipulate to amend the complaint. (Id. at 9-10.) Trial is not until July 13, 2022, and leave to 14 amend was sought “far in advance of the current proposed briefing schedule regarding the 15 Plaintiffs’ Motion for class certification[.]” (Id. at 8, 10.) Additionally, the proposed amendment 16 is not futile because the FLSA claim is not preempted by the LMRA. (Id. at 10-14.) 17 Defendant opposes the motion for leave to amend because Plaintiffs unreasonably delayed 18 in seeking leave to amend and the failure to do so earlier was strategic. (ECF No. 39 at 7, 11-14.) 19 Permitting amendment would also prejudice Defendant due to the class certification briefing 20 deadlines as well as the litigation delays and increased expense that would result. (Id. at 14-17.)

21 Finally, amendment is futile due to the distinction between paying meal and rest period premiums

22 at the regular rate of compensation and not the regular rate of pay used to calculate overtime. (Id.

23 at 8, 17-20.) Even if leave to amend is granted, the premium pay theory does not relate back to May 3, 2020, and is therefore barred by the statute of limitations. (Id. at 20.) The proposed 24 amendments lack plausibility because they are based on boilerplate allegations restating the law. 25 (Id. at 21-23.) Therefore, the Third Amended Complaint should not be permitted in its current 26 form. (Id. at 23.) 27 /// 28 7 Case 1:19-cv-00264-DAD-EPG Document 67 Filed 03/30/21 Page 8 of 43

1 On reply, Plaintiffs argue that, during the period of time between District Judge Drozd’s

2 order denying remand and the motion for leave to amend, California was placed on “safer at

3 home” orders due to the COVID-19 pandemic and the parties were meeting and conferring

4 regarding a discovery dispute over the Meal Period Regular Rate Sub-Class and Rest Period

5 Regular Rate Sub-Class. (ECF No. 40 at 2-3.) Plaintiffs also contend Defendant’s assertions of potential additional work and discovery are not sufficient to establish prejudice. (Id. at 4-5.) 6 Plaintiffs concede that the new claims would result in additional discovery, but argue that such 7 discovery would be limited to supplementing two written discovery responses. (Id.) Amendment 8 also is not futile because the issue of whether regular rate of compensation and regular rate of pay 9 are distinguishable will be decided by the California Supreme Court before this case goes to trial 10 and Defendant has not argued that amendment to add the FLSA claim is futile. (Id. at 5-6.) 11 Finally, Defendant’s relation back argument can be managed at class certification, and 12 plausibility is not a factor in determining leave to amend. (Id. at 6.) 13 C. Discussion 14 The Court first looks to undue delay. Here, it is clear that Plaintiffs have delayed in 15 moving for leave to amend. Plaintiffs themselves concede that the facts underlying their FLSA 16 claim were present in the original complaint, filed in state court on July 13, 2017, yet they 17 decided not to assert such a claim because they believed that state law claims were sufficient. (See 18 ECF Nos. 35-1 at 7-8, 40 at 2.) Indeed, Plaintiffs themselves state that “the proposed amendment 19 is based on the same operative facts originally pled.” (Id. at 8.) When District Judge Drozd denied 20 Plaintiffs’ motion for remand and found that the LMRA preempted some of these state law

21 claims, Plaintiffs wanted to bring an FLSA claim to cover similar issues with a new federal claim.

22 (ECF No. 40 at 2.) However, Plaintiffs delayed in seeking leave to amend for another nine

23 months after issuance of the order denying remand was issued and waited until the eve of class certification to file their motion. 24 As for the new Meal Period Regular Rate Sub-Class and Rest Period Regular Rate Sub- 25 Class, Plaintiffs claim they were already alleged in the Second Amended Complaint and the 26 proposed amendment merely “clarif[ies]” the allegations of the Second Amended Complaint. 27 (ECF No. 35-1 at 7.) However, a review of the Second Amended Complaint reveals that these 28 8 Case 1:19-cv-00264-DAD-EPG Document 67 Filed 03/30/21 Page 9 of 43

1 subclasses were not previously asserted. (See ECF No. 1-29.)

2 The Court does not find Plaintiffs’ excuses to be persuasive or to justify their delay in

3 seeking leave to amend. Plaintiffs were aware of the facts underlying their proposed amended

4 pleading from the beginning of this litigation and have not adequately explained why they waited

5 to request leave to amend until more than three years after this case was commenced, fifteen months after it was removed to federal court, nine months after District Judge Drozd issued his 6 order denying remand, and six months after Defendant refused to stipulate to amendment. This is 7 not a situation where Plaintiffs exercised diligence and uncovered new facts necessary to assert 8 their claims later in the action. Instead, Plaintiffs concede that they delayed due to strategic 9 questions regarding asserting a federal FLSA claim in light of proceeding in state court, and even 10 then cannot explain their additional nine-month delay. Plaintiffs’ delay in asserting the Meal 11 Period Regular Rate Sub-Class and Rest Period Regular Rate Sub-Class appears to be related to 12 their own misunderstanding of what was alleged in the operative complaint. And although 13 Plaintiffs cite to the COVID-19 pandemic and the parties’ discovery dispute as justifying their 14 delay, Plaintiffs do not explain how these events precluded them from seeking leave to amend. 15 Plaintiffs’ decision not to seek leave to amend earlier in the case was deliberate and strategic, and 16 their change in strategy does not warrant granting leave to amend. See Acri v. International Ass'n 17 of Machinists, 781 F.2d 1393, 1398 (9th Cir.), cert. denied, 479 U.S. 816 (1986) (“[L]ate 18 amendments to assert new theories are not reviewed favorably when the facts and the theory have 19 been known to the party seeking amendment since the inception of the cause of action.”); 20 AmerisourceBergen Corp. v. Dialysist West, Inc., 465 F.3d 946, 953 (9th Cir. 2006) (“[I]n

21 evaluating undue delay, we inquire ‘whether the moving party knew or should have known the

22 facts and theories raised by the amendment in the original pleading.’”) (quoting Jackson v. Bank

23 of Hawaii, 902 F.2d 1385, 1388 (9th Cir. 1990)). The Court next turns to prejudice. Plaintiffs claim that there is no prejudice to Defendant 24 because the underlying facts are the same as previously asserted. The Court disagrees. Permitting 25 amendment would “unfairly impose[] potentially high, additional litigation costs on [Defendant] 26 that could have easily been avoided” if Plaintiffs had pursued the Meal Period Regular Rate Sub- 27 Class, Rest Period Regular Rate Sub-Class, and the FLSA claim in its original or first two 28 9 Case 1:19-cv-00264-DAD-EPG Document 67 Filed 03/30/21 Page 10 of 43

1 amended complaints. AmerisourceBergen Corp., 465 F.3d at 953; see also Morongo Bank of

2 Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990) (affirming a district court’s denial

3 of leave to amend where amendment “would have greatly altered the nature of the litigation and

4 would have required defendants to have undertaken, at a late hour, an entirely new course of

5 defense”); Jackson, 902 F.2d at 1388 (“Putting the defendants through the time and expense of continued litigation on a new theory, with the possibility of additional discovery, would be 6 manifestly unfair and unduly prejudicial.”). 7 Amendment at this late date also interferes with the efficient and sequential process of this 8 case. Plaintiffs’ motion for class certification is also now pending, including on the subclasses 9 first asserted in the proposed Third Amended Complaint. Plaintiffs ask this Court to issue 10 findings and recommendations to the District Judge to grant leave to amend and then to issue 11 contingent findings and recommendations regarding class certification if the District Judge were 12 to adopt the findings and recommendations regarding amendment. The Court declines to do so. 13 Under the circumstances, adding additional claims would further delay the case and disrupt the 14 efficient progress of the case to completion. These issues of efficient case management are only 15 heightened by this Court’s judicial emergency. (See ECF No. 28.) 16 As to the FLSA claim, Defendant has indicated that it has numerous legal challenges, 17 which may require rulings from the District Judge on the scope of the pleadings. If allowed, 18 Plaintiffs would then have to determine which, if any, employees wish to participate. At the 19 hearing on the motion, the Court asked Plaintiffs’ counsel what the next steps for an FLSA 20 collective action would be, and counsel for Plaintiffs explained, “I haven’t done a lot of FLSA

21 collective actions [but] I think the next step would be to then send out a notice and see who would

22 consent to join this very small issue.” (ECF No. 63 at 12.) It is possible that Defendant would

23 challenge the sufficiency of these participants. There are thus additional significant steps Plaintiffs would need to take before proceeding to the merits of a new FLSA claim. 24 As to the Meal Period Regular Rate Sub-Class and Rest Period Regular Rate Sub-Class, 25 the motion for class certification is already pending. The parties also agree that at least some 26 discovery regarding these subclasses would be needed. While such discovery may be relatively 27 minor, its necessity demonstrates that amendment would interfere in the orderly process of this 28 10 Case 1:19-cv-00264-DAD-EPG Document 67 Filed 03/30/21 Page 11 of 43

1 case, particularly as Defendant challenges whether these claims relate back. Amendment at this

2 time would require that the District Judge adopt the findings and recommendations for leave to

3 amend, Defendant be given the opportunity to respond to the complaint (which could include a

4 motion to dismiss), and the parties engage in some limited discovery, before class certification

5 could be finally resolved and the case could proceed to further litigation on the merits. It is important for the efficient administration of justice that this case move through the class 6 certification stage and the District Judge be able to determine the certification for all potential 7 classes and subclasses promptly. 8 Because of Plaintiffs’ undue delay and the prejudice to Defendant as well as to the 9 efficient management of the case and ability to reach a resolution of the matter, the Court 10 recommends denying leave to amend.2 11 III. MOTION FOR CLASS CERTIFICATION 12 A. Legal Standards 13 1. Class Actions Generally 14 The class action is a procedural mechanism whereby the “usual rule that litigation be 15 conducted by and on behalf of the named parties only” is swept aside so that multiple parties— 16 unwieldy in number but possessing similar or identical claims—may pursue common redress in 17 an efficient and economical manner. Comcast v. Behrend, 569 U.S. 27, 33 (2013) (quoting Wal- 18 Mart Stores, Inc. v. Dukes, 564 U.S. 338, 348 (2011)); see also Abdullah v. U.S. Sec. Assocs., 19 Inc., 731 F.3d 952, 963–64 (9th Cir. 2013). Federal Rule of Civil Procedure 23 controls class 20 certification and imposes a two-step process designed to ensure not only that this system of

21 representative adjudication nets expediencies for the litigants and the judiciary, but that it does

22 not sacrifice procedural fairness or zealous advocacy in the process of doing so.

23 Rule 23(a) is the first hurdle that must be overcome for a case to proceed as a class action. It consists of four prerequisites, often described as: (1) numerosity, (2) commonality, (3) 24 typicality, and (4) adequacy. If—and only if—a putative class satisfies these four requirements 25 may it then proceed to show it also satisfies one of the three subsections of Rule 23(b). The party 26 27 2 Because the Court recommends denial on the basis of undue delay and prejudice, it declines to weigh in on 28 the substantial legal questions Defendant has raised as to futility. 11 Case 1:19-cv-00264-DAD-EPG Document 67 Filed 03/30/21 Page 12 of 43

1 seeking class certification bears the burden of establishing conformity with these requirements,

2 and must do so by producing facts “affirmatively demonstrat[ing]” that certification is warranted.

3 Comcast, 569 U.S. at 33; Dukes, 564 U.S. at 350. A court must review the merits of a party’s

4 substantive claim to the extent that they overlap with issues touching on class certification. Ellis

5 v. Costco Wholesale Corp., 657 F.3d 970, 981 (9th Cir. 2011) (citing Dukes, 564 U.S. at 350–51 and Hanon v. Dataproducts Corp., 976 F.2d 497, 509 (9th Cir. 1992)); see also Blair v. The CBE 6 Grp., Inc., 309 F.R.D. 621, 625 (S.D. Cal. 2015). Only after it has conducted a “rigorous 7 analysis” of these facts and determined they show “actual, [and] not presumed, conformance” 8 with Rule 23(a) and (b), may a district court certify a class. Ellis, 657 F.3d at 981 (quoting Gen. 9 Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160, 161, (1982)); see also Comcast, 569 U.S. at 33–34 10 (extending the “rigorous analysis” requirement to Rule 23(b)); Patel v. Nike Retail Servs., Inc., 11 2016 WL 1241777, at *3 (N.D. Cal. Mar. 29, 2016) (“This ‘rigorous’ analysis applies both to 12 Rule 23(a) and Rule 23(b).”). If a court does decide to certify a class, it must define the class 13 claims and issues and appoint class counsel. Fed. R. Civ. P. 23(c)(1), (g). 14 “When appropriate, a class may be divided into subclasses that are each treated as a class 15 under this rule.” Fed. R. Civ. P. 23(c)(5); see also Rodriguez v. Hayes, 591 F.3d 1105, 1123–24 16 (9th Cir. 2010) (“To the extent there may be any concern that the differing statutes . . . will render 17 class adjudication of class members’ claims impractical or undermine effective representation of 18 the class, it may counsel the formation of subclasses.”). “[E]ach subclass must independently 19 meet the requirements of Rule 23 for the maintenance of a class action.” Betts v. Reliable 20 Collection Agency, Ltd., 659 F.2d 1000, 1005 (9th Cir. 1981).

21 2. Rule 23(a) Requirements

22 In order for a class member to sue as a representative of all class members, the class

23 member must establish the following prerequisites: (1) the class must be “so numerous that joinder of all members is impracticable”; (2) there must be “questions of law or fact common to 24 the class”; (3) “the claims or defenses of the representative parties are typical of the claims or 25 defenses of the class”; and (4) “the representative parties will fairly and adequately protect the 26 interests of the class.” Fed. R. Civ. P. 23(a). 27 /// 28 12 Case 1:19-cv-00264-DAD-EPG Document 67 Filed 03/30/21 Page 13 of 43

1 i. Numerosity

2 A proposed class must be “so numerous that joinder of all members is impracticable.”

3 Fed. R. Civ. P. 23(a)(1). Numerosity has no strict limit, but certainly class membership in the

4 hundreds is sufficient to meet it. See Monterrubio v. Best Buy Stores, L.P., 291 F.R.D. 443, 449

5 (E.D. Cal. 2013) (numerosity met with approximately 3,500 class members); Orvis v. Spokane County, 281 F.R.D. 469, 473 (E.D. Wash. 2012) (numerosity met with 260 class members); 6 Campbell v. PricewaterhouseCoopers, LLP, 253 F.R.D. 586, 594 (E.D. Cal. 2008) 7 (approximately one thousand members satisfied numerosity). 8 ii. Commonality 9 Rule 23 requires there be “questions of law or fact common to the class.” Fed. R. Civ. P. 10 23(a)(2). To satisfy Rule 23(a)’s commonality requirement, a class claim “must depend upon a 11 common contention . . . of such a nature that it is capable of class[-]wide resolution—which 12 means that determination of its truth or falsity will resolve an issue that is central to the validity of 13 each one of the claims in one stroke.” Dukes, 564 U.S. at 350. As the Supreme Court further 14 explained, commonality “is easy to misread, since any competently crafted class complaint 15 literally raises common questions.” Id. at 349 (citations and quotation marks omitted). It is not 16 enough to merely recite questions to obtain class certification, and a plaintiff must demonstrate 17 that the class members “have suffered the same injury” in order to establish commonality. Id. at 18 349-50. Determining commonality frequently necessitates an inquiry that “overlap[s] with the 19 merits of plaintiff’s underlying claim.” Id. at 351. 20 iii. Typicality

21 “[T]he claims or defenses of the representative parties [must be] typical of the claims and

22 defenses of the class.” Fed. R. Civ. P. 23(a)(3). They need not be clones; rather, all that is

23 required is that the claims or defenses be “reasonably co-extensive.” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998), overruled on other grounds by Dukes, 564 U.S. 338 (noting 24 that this standard is a “permissive” one and requires only that the claims of the class 25 representatives be “reasonably co-extensive with those of absent class members; they need not be 26 substantially identical”). Typicality is satisfied if the representative’s claims arise from the same 27 course of conduct as the class claims and are based on the same legal theory. See, e.g., Kayes v. 28 13 Case 1:19-cv-00264-DAD-EPG Document 67 Filed 03/30/21 Page 14 of 43

1 Pac. Lumber Co., 51 F.3d 1449, 1463 (9th Cir. 1995) (claims are typical where named plaintiffs

2 have the same claims as other members of the class and are not subject to unique defenses). “The

3 test of typicality is whether other members have the same or similar injury, whether the action is

4 based on conduct which is not unique to the named plaintiffs, and whether other class members

5 have been injured by the same course of conduct.” Hanlon, 976 F.2d at 508. iv. Adequacy of Representation 6 Plaintiffs seeking class certification must show that they “will fairly and adequately 7 protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). “To determine whether named 8 plaintiffs will adequately represent a class, courts must resolve two questions: ‘(1) do the named 9 plaintiffs and their counsel have any conflicts of interest with other class members and (2) will 10 the named plaintiffs and their counsel prosecute the action vigorously on behalf of the class?’” 11 Ellis, 657 F.3d at 985 (quoting Hanlon, 150 F.3d at 1020)); see also In re Online DVD-Rental 12 Antitrust Litig., 779 F.3d 934, 943 (9th Cir. 2015). “An absence of material conflicts of interest 13 between the named plaintiffs and their counsel with other class members is central to adequacy 14 and, in turn, to due process for absent members of the class.” Rodriguez v. W. Publ’g Co., 563 15 F.3d 948, 959 (9th Cir. 2009) (citing Hanlon, 150 F.3d at 1020). Accordingly, “[c]lass 16 certification will be inappropriate if fundamental conflicts of interest are determined to exist 17 among the proposed class members.” Allied Orthopedic v. Tyco Healthcare Grp. L.P., 247 F.R.D. 18 156, 177 (C.D. Cal. 2007). Generally, the adequacy inquiry seeks to ensure that the class 19 representative is “part of the class and [that he] possess[es] the same interest and injury as the 20 class members.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625–26 (1997).

21 3. Rule 23(b) Requirements

22 Once the prerequisites of Rule 23(a) are met, the court must certify the class under one of

23 the Rule 23(b) categories. A class action is maintainable under Rule 23(b)(1)(A) if “prosecution of separate actions ... would create a risk of inconsistent or varying adjudications with respect to 24 individual members of the class which would establish incompatible standards of conduct for the 25 party opposing the class....” Fed. R. Civ. P. 23(b)(1)(A). “The phrase ‘incompatible standards of 26 conduct’ refers to the situation where different results in separate actions would impair the 27 opposing party's ability to pursue a uniform continuing course of conduct.” Zinser v. Accufix 28 14 Case 1:19-cv-00264-DAD-EPG Document 67 Filed 03/30/21 Page 15 of 43

1 Rsch. Inst., Inc., 253 F.3d 1180, 1193 (9th Cir.), opinion amended on denial of reh'g, 273 F.3d 2 1266 (9th Cir. 2001) (citation and quotation marks omitted). However, Rule 23(b)(1)(A) 3 certification requires more “than a risk that separate judgments would oblige the opposing party 4 to pay damages to some class members but not to others or to pay them different 5 amounts[.]” Id. Certification under Rule 23(b)(1)(A) is therefore not appropriate in an action for 6 damages. Id. (citing Green v. Occidental Petroleum Corp., 541 F.2d 1335, 1340 (9th 7 Cir.1976); McDonnell Douglas Corp. v. U.S. Dist. Court, 523 F.2d 1083, 1086 (9th Cir.1975).) 8 As the Ninth Circuit has explained:

9 Rule 23(b)(1)(A) authorizes class actions to eliminate the possibility of 10 adjudications in which the defendant will be required to follow inconsistent courses of continuing conduct. This danger exists in those situations in which the 11 defendant by reason of the legal relations involved can not as a practical matter pursue two different courses of conduct. The Advisory Committee's Note makes 12 this clear in discussing Rule 23(b)(1)(A) by its reference to actions to declare bond issues invalid, to fix the rights and duties of a riparian owner, and to determine a 13 landowner's rights and duties respecting a claimed nuisance. 14 La Mar v. H & B Novelty & Loan Co., 489 F.2d 461, 466 (9th Cir. 1973) (footnotes omitted). 15 Certification under Rule 23(b)(3), in turn, is permitted when “the questions of law or fact 16 common to class members predominate over any questions affecting only individual members, 17 and . . . a class action is [deemed to be] superior to other available methods for fairly and 18 efficiently adjudicating the controversy.” Dukes, 564 U.S. at 362 (quoting Fed. R. Civ. P. 19 23(b)(3)); see also Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036, 1045 (2016) (“An 20 individual question is one where ‘members of a proposed class will need to present evidence that 21 varies from member to member,’ while a common question is one where ‘the same evidence will 22 suffice for each member to make a prima facie showing [or] the issue is susceptible to 23 generalized, class-wide proof.’”) (quoting 2 W. Rubenstein, Newberg on Class Actions § 4:50, 24 pp. 196–97 (5th ed. 2012)). 25 “The . . . predominance inquiry tests whether proposed classes are sufficiently cohesive to 26 warrant adjudication by representation,” Amchem, 521 U.S. at 622, whereas the superiority 27 requirement demands courts “assess the relative advantages of alternative procedures for handling 28 the total controversy” in order to determine that “a class action is the ‘superior’ method of 15 Case 1:19-cv-00264-DAD-EPG Document 67 Filed 03/30/21 Page 16 of 43

1 resolution.” Fed. R. Civ. P. 23(b)(3) advisory comm. note; see also Pointer v. Bank of Am. Nat’l

2 Ass’n, 2016 WL 696582, at *8 (E.D. Cal. Feb. 22, 2016). While the predominance requirement is

3 similar to the Rule 23(a)(2) commonality requirement, the standard is much higher at this stage of

4 the analysis. Dukes, 564 U.S. at 359; Amchem, 521 U.S. at 624–25; Hanlon, 150 F.3d at 1022.

5 Ultimately, “[t]he predominance inquiry ‘asks whether the common, aggregation-enabling, issues in the case are more prevalent or important than the non-common, aggregation-defeating, 6 individual issues.’” Tyson Foods, Inc., 136 S. Ct. at 1045 (quoting Newberg, § 4:49, at 195–96). 7 Rule 23(b)(3) provides that, aside from predominance, a court must find that a “class 8 action is superior to other available methods for fairly and efficiently adjudicating the 9 controversy.” Fed. R. Civ. P. 23(b)(3). The rule lists four metrics pertinent to superiority, 10 including class members’ interests in individually controlling litigation, whether any litigation has 11 already been filed by putative class members, the desirability of concentrating the litigation in a 12 class action, and the “likely difficulties in managing a class action.” Id. The Ninth Circuit has 13 recognized a “well-settled presumption that courts should not refuse to certify a class merely on 14 the basis of manageability concerns,” but rather should look to “manageability as one component 15 of the superiority inquiry.” Briseno v. ConAgra Foods, Inc., 844 F.3d 1121, 1128 (9th Cir. 2017) 16 (quoting Mullins v. Direct Digital, LLC, 795 F.3d 654, 663 (7th Cir. 2015)). 17 B. Discussion3 18 1. Rule 23(a): Adequacy of Class Representatives and Class Counsel4 19 Plaintiffs seek to appoint Robert Van Bebber, Martha Ochoa, and Rachel Clover as class 20 representatives and to appoint Joseph Antonelli and Janelle Carney of Law Office of Joseph

21 Antonelli and Robert L. Starr, Manny Starr, and Adam M. Rose of Frontier Law Center as class

22 3 The parties each filed objections to the declarations and evidence produced in support of Plaintiffs’ motion 23 and Defendant’s opposition. (ECF Nos. 53-4, 53-5, 57-5, 57-6, 57-5). “Since a motion to certify a class is a preliminary procedure, courts do not require strict adherence to the Federal Rules of Civil Procedure or the Federal 24 Rules of Evidence.” Arredondo v. Delano Farms Co., 301 F.R.D. 493, 505 (E.D. Cal. 2014) (citations omitted). “The court need not address the ultimate admissibility of the parties’ proffered exhibits, documents and testimony at this 25 stage, and may consider them where necessary for resolution” of the motion. Id. (citations and quotation marks omitted.) Accordingly, the Court recommends overruling the parties’ evidentiary objections for purposes only of ruling on these two motions and reviews all the evidence presented for purposes of the motion for class certification. 26 4 As noted above, each of the Rule 23 requirements must be determined for each of the classes and 27 subclasses to be certified. Accordingly, the Court has considered the applicability of these requirements separately for each class and subclass but will discuss them collectively where the same reasoning applies to all classes and 28 subclasses. 16 Case 1:19-cv-00264-DAD-EPG Document 67 Filed 03/30/21 Page 17 of 43

1 counsel. (ECF No. 45 at 5.) Plaintiffs argue that there is no evidence of antagonism between the

2 proposed class representatives or class counsel and the putative classes. (ECF No. 45-1 at 29.)

3 Defendant does not object to the adequacy of the proposed class representatives. (See ECF Nos.

4 53, 63.)

5 The proposed class representatives each filed declarations under penalty of perjury stating that they do not have any interests antagonistic to the class, they are prepared to be class 6 representatives through trial, they are adequate representatives, and their interests are the same as 7 class members because Defendant utilized one timekeeping system for all employees. (ECF No. 8 45-2 at 268, 274, 279.) These representations are sufficient to meet the general criteria for serving 9 as a class representative. 10 Plaintiffs also provide declarations regarding Ms. Carney, Mr. Antonelli, Mr. Rose, and 11 Mr. Robert Starr’s qualifications. (ECF No. 45-2 at 5-14, 30-31.) Plaintiffs did not submit any 12 declarations regarding Manny Starr’s qualifications.5 Absent any demonstrated conflicts of 13 interest, and given the qualifications of class counsel, the Court is satisfied that Ms. Carney, Mr. 14 Antonelli, Mr. Rose, and Mr. Robert Starr will vigorously and adequately pursue representation 15 of the class and finds that they are appropriate class counsel. However, in light of the Court’s 16 obligation to conduct a rigorous analysis and determine actual, and not presumed, conformance 17 with Rule 23(a), the Court will not recommend that Manny Starr be appointed as class counsel. 18 2. Rule 23(a): Typicality 19 Plaintiffs argue that the proposed class representatives’ claims are typical of the classes 20 they seek to represent because they possess the same interests, suffered the same injury, and

21 allege identical violations. (ECF No. 45-1 at 28.) Defendant, in turn, argues that the typicality

22 requirement is not met because the proposed class representatives worked as a Security Guard,

23 Ward Clerk in the Emergency Room, and RN in the Telemetry Department and “did not work in any of the other 76 departments or 251 other positions that are encompassed by the proposed 24 class.” (ECF No. 53 at 8.) 25

26 5 Plaintiff initially did not submit information regarding Robert Starr or Manny Starr’s qualifications in support of the motion for class certification. (See ECF No. 45.) The Court allowed Plaintiffs to submit supplemental 27 declarations if Plaintiffs wished for Robert Starr and Manny Starr to be appointed class counsel. (ECF No. 64.) On March 19, 2021, Plaintiffs submitted a declaration regarding Robert Starr’s qualifications but did not submit any 28 further information regarding Manny Starr’s qualifications. (See ECF No. 65.) 17 Case 1:19-cv-00264-DAD-EPG Document 67 Filed 03/30/21 Page 18 of 43

1 Plaintiffs have provided declarations indicating that they would fit within the applicable

2 definitions for all classes and subclasses and are bringing the same substantive legal claims as the

3 proposed class. Specifically, according to their declarations, Plaintiff Van Bebber’s claims are

4 typical of the Regular Rate/Overtime Class and Rounding Class; Plaintiff Ochoa’s claims are

5 typical of the Rounding Class, the On Call/Standby Class, the Second Meal Break Class, the Meal Period Waiver Sub-Class, the Pay Stub Class, and the Waiting Time Penalty Class; and Plaintiff 6 Clover’s claims are typical of the Rounding Clinical Sub-Class, the On Call/Standby Class, the 7 Meal Period Waiver Sub-Class, the Meal Break Sub-Class, the Pay Stub Class, the Rest Break 8 Class, and the Waiting Time Penalty Class. (See ECF Nos. 45-2 at 263-280, 57 at 20-21.) 9 While typicality requires that the class representative be part of the class and have the 10 same interests and injuries as other class members, those interests and injuries are not required to 11 be identical. Falcon, 457 U.S. at 156; Hanlon, 150 F.3d at 1020. Therefore, certification may still 12 be appropriate where, as here, employees in “different job categories” challenge “practices . . . in 13 the different categories that are themselves similar.” Dukes v. Wal-Mart, Inc., 509 F.3d 1168, 14 1185 (9th Cir. 2007), rev’d on other grounds, 131 S.Ct. at 2556-57 (2011). Although Plaintiffs 15 did not work in each of the various departments and positions that are encompassed by the 16 proposed classes and subclasses, Defendant does not explain how, if at all, this makes Plaintiffs’ 17 claims atypical. Plaintiffs’ declarations demonstrate that their claims arise from the same course 18 of conduct as the proposed class claims and are based on the same legal theories, except as 19 addressed below regarding the commonality of issues among the class. Their claims are 20 “reasonably co-extensive with those of absent class members” and are therefore typical. Hanlon,

21 150 F.3d at 1020. The Court therefore finds that the typicality requirement has been met to the

22 extent the Court finds that the Plaintiffs have established commonality, discussed further below.

23 3. Rule 23(a): Numerosity Plaintiffs represent that all classes and subclasses are composed of 2,215 employees. (ECF 24 No. 45-1 at 12.) Defendant does not dispute that the classes and subclasses are sufficiently 25 numerous. (See ECF No. 53.) 26 Plaintiffs’ counsel also submitted a declaration representing that the Regular 27 Rate/Overtime Class is composed of approximately 1,383 employees, the Rounding Class is 28 18 Case 1:19-cv-00264-DAD-EPG Document 67 Filed 03/30/21 Page 19 of 43

1 composed of approximately 1,428 employees, the Rounding Clinical Sub-Class is composed of

2 approximately 636 employees, the On Call/Standby Class is composed of approximately 756

3 employees, the Second Meal Break Class is composed of approximately 1,623 employees, the

4 Meal Break Sub-Class is composed of approximately 448 employees, the Pay Stub Class exceeds

5 1845 employees, and the Waiting Time Penalty Class is composed of approximately 1,025 employees. (ECF No. 66.) See Orvis, 281 F.R.D. at 473 (reasoning that numerosity was met with 6 260 class members); Collins v. Cargill Meat Sols. Corp., 274 F.R.D. 294, 300 (E.D. Cal. 2011) 7 (“Courts have routinely found the numerosity requirement satisfied when the class comprises 40 8 or more members.”). 9 As to the Meal Period Waiver Sub-Class and the Rest Break Class, Plaintiffs do not 10 provide an exact estimate of the number of putative class members. Plaintiffs argue that the Meal 11 Period Waiver Sub-Class is sufficiently numerous because all new hire packets contain a meal 12 waiver, and two managers testified that they did not know of any employees in their departments 13 that did not sign a meal waiver. (ECF No. 66 at 6.) Additionally, the Rest Break Class includes 14 “the vast majority of the hospital employees and is capable for further determination once the 15 identifying information is produced, assuming a class is certified.” (Id. at 8.) See West v. 16 California Servs. Bureau, Inc., 323 F.R.D. 295, 303 (N.D. Cal. 2017) (“Plaintiffs need not state 17 an exact number to meet the threshold requirements of Rule 23. Rather, the rule requires 18 examination of the specific facts of each case and imposes no absolute limitations.”) (citation and 19 quotation marks omitted); Orantes-Hernandez v. Smith, 541 F.Supp.351, 370 (C.D. Cal. 1982) 20 (“Where the exact size of the class is unknown but general knowledge and common sense

21 indicate that it is large, the numerosity requirement is satisfied.”).

22 In light of the estimates provided by Plaintiffs, the Court finds that the numerosity

23 requirement has been met. 4. Rule 23(a): Commonality and Rule 23(b)(3): Predominance 24 The Court next considers whether Plaintiffs have established commonality under Rule 25 23(a) for each class and subclass.6 Because the considerations under the Rule 23(a) commonality 26 27 6 Where a class and subclass are closely related and rely on substantially the same legal theories, the Court 28 discusses them together. 19 Case 1:19-cv-00264-DAD-EPG Document 67 Filed 03/30/21 Page 20 of 43

1 and Rule 23(b)(3) predominance factors are similar, the Court will also address any arguments

2 concerning predominance.

3 i. Class 1: Regular Rate/Overtime Class

4 Plaintiffs seek to certify the Regular Rate/Overtime Class for Defendant’s failure to

5 properly calculate the regular rate of pay for purposes of overtime. (ECF Nos. 45 at 2, 45-1 at 18, 1-29 at 12-15.) Plaintiffs’ claim is based on the contention that, among the many types of 6 payments excluded from calculating the regular rate of pay for overtime purposes, three 7 payments—the “imputed bonus,” the “non FLSA bonus,” and the “Broad Based” bonus were 8 wrongfully excluded because they are supposedly “non-discretionary.” (ECF No. 45-1 at 18.) 9 a. Applicable Law Regarding Regular Rate of Pay 10 “In California, ‘wage and hour claims are today governed by two complementary and 11 occasionally overlapping sources of authority: the provisions of the Labor Code, enacted by the 12 Legislature, and a series of 18 wage orders, adopted by the IWC.’” Donohue v. AMN Servs., LLC, 13 --Cal.--, 2021 WL 728871, at *4 (Cal. Feb. 25, 2021) (quoting Brinker Restaurant Corp. v. 14 Superior Court, 53 Cal.4th 1004, 1026 (2012)). California Labor Code § 510 and IWC Order No. 15 5-2001 govern the payment of overtime to employees in the health care industry. See Cal. Lab. 16 Code § 510; 8 Cal. Code Regs. § 11050 (codifying IWC Order No. 5-2001); see also Cal. Lab. 17 Code § 1194 (authorizing an employee receiving less than the legal overtime compensation to 18 recover the unpaid balance, interest, attorney’s fees, and costs of suit in a civil action). The wage 19 order provides: 20 (A) Daily Overtime-General Provisions 21 (1) The following overtime provisions are applicable to employees 18 years of 22 age or over and to employees 16 or 17 years of age who are not required by law to attend school and are not otherwise prohibited by law from engaging in 23 the subject work. Such employees shall not be employed more than eight (8) hours in any workday or more than 40 hours in any workweek unless the 24 employee receives one and one-half (1 1/2) times such employee's regular rate 25 of pay for all hours worked over 40 hours in the workweek. Eight (8) hours of labor constitutes a day's work. Employment beyond eight (8) hours in any 26 workday or more than six (6) days in any workweek is permissible provided the employee is compensated for such overtime at not less than: 27 /// 28 20 Case 1:19-cv-00264-DAD-EPG Document 67 Filed 03/30/21 Page 21 of 43

1 (a) One and one-half (1 1/2) times the employee's regular rate of pay for all hours worked in excess of eight (8) hours up to and including 12 hours in 2 any workday, and for the first eight (8) hours worked on the seventh (7th) 3 consecutive day of work in a workweek; and

4 (b) Double the employee's regular rate of pay for all hours worked in excess of 12 hours in any workday and for all hours worked in excess of 5 eight (8) hours on the seventh (7th) consecutive day of work in a workweek. 6

7 (c) The overtime rate of compensation required to be paid to a nonexempt full-time salaried employee shall be computed by using the employee's 8 regular hourly salary as one-fortieth (1/40) of the employee's weekly salary. 9 8 Cal. Code Regs. § 11050 10 California law does not specifically address the inclusion or exclusion of bonus payments 11 in the “regular rate of pay,” but California case law often looks to FLSA standards to interpret the 12 “regular rate of pay” under California law. Alonzo v. Maximus, Inc., 832 F.Supp.2d1122, 1129 13 (C.D. Cal. 2011) (citations omitted). The FLSA defines “regular rate” to include “all 14 remuneration for employment paid to, or on behalf of, the employee” subject only to certain 15 specific enumerated statutory exceptions. 29 U.S.C. § 207(e). As relevant here, discretionary 16 bonuses are excluded from the regular rate of pay under the FLSA definition. Id. at 208(e)(3). 17 b. Analysis

18 Plaintiffs allege that this class should be certified because any payments for the “imputed

19 bonus,” the “non FLSA bonus,” and the “Broad Based bonus” were non-discretionary and

20 improperly excluded from the overtime calculation for all class members. (ECF No. 45-1 at 18.)

21 In its opposition, Defendant argues that Plaintiffs’ unfounded assumption that each of these bonuses were non-discretionary is wrong. (ECF No. 53 at 21.) In fact, the pay codes for the 22 “imputed bonus,” the “non FLSA bonus,” and the “Broad Based bonus” were used for 23 discretionary items. (Id. at 22. ) Additionally, there are no methods of common proof for this 24 class because each instance where the relevant pay codes were used must be individually 25 examined to ascertain why the payment was made on each occasion for each employee to 26 determine if the circumstances were discretionary or non-discretionary. (Id.) 27 /// 28 21 Case 1:19-cv-00264-DAD-EPG Document 67 Filed 03/30/21 Page 22 of 43

1 This issue was discussed extensively at the hearing on this motion. (See ECF No. 63.)

2 Defendant claimed that its policies properly included non-discretionary bonuses, and only

3 excluded discretionary bonuses, in calculating the regular rate of pay for overtime purposes. (Id.

4 at 35, 37-42.) Plaintiffs’ counsel explained the sole factual basis for this claim was a pay code and

5 description document, which noted which types of pay were included in the overtime calculations, as well as a memorandum of understanding with union employees that included a 6 description of the “Broad Based bonus.” (Id. at 42-43.) The pay code and description document 7 included the following rows: 8 Regular Rate Regular Rate 9 Pay Code and Description Include Hours? Include Dollars? 10 704 - BONUS NON FLSA N N 11 705 - IMPUTED BONUS N N 12 728 – BROAD BASED BONUS N N 13 (ECF No. 45-3 at 447.) 14 Notably, nothing in the chart indicates whether the bonuses are discretionary or not. 15 Further, Plaintiffs’ counsel conceded at the hearing that Plaintiffs “don’t have any evidence to 16 explain what those bonuses are for” and the chart only shows that those bonuses were not 17 included in the regular rate. (ECF No. 63 at 45-46.) Further, Plaintiffs do not point to any 18 evidence that the named plaintiffs received these bonuses in a discretionary circumstance. 19 Defendant’s counsel argued at the hearing that the bonuses at issue are discretionary, 20 pointing to the memorandum of understanding with union employees which described the “Broad 21 Based bonus” as discretionary. (ECF No. 63 at 46; see also ECF No. 45-3 at 449 (“The Employer 22 and the Union agree that the Employer will pay a one-time discretionary b onus to eligible

23 employees represented by Union.”).) Plaintiffs’ counsel, in turn, argued that the memorandum of

24 understanding between Defendant and union members described specific criteria for employees to

25 satisfy in order to get the “Broad Based bonus” and that made it non-discretionary. (ECF No. 63 at 44-45.) 26 While this discussion largely concerns the merits of Plaintiffs’ claims, it also sheds light 27 on Plaintiffs’ request to certify this class. Plaintiffs cannot point to any policy to exclude non- 28 22 Case 1:19-cv-00264-DAD-EPG Document 67 Filed 03/30/21 Page 23 of 43

1 discretionary bonuses from the calculation of the regular rate for purposes of overtime. Not to

2 mention that Plaintiffs fail to show that such exclusion affected the named plaintiffs or a

3 sufficient number of similarly-situated individuals. Plaintiffs have had an opportunity to take

4 discovery in this case, yet still cannot point to any evidence of a class-wide issue related to

5 exclusion of non-discretionary bonuses. Without more evidence, the Court cannot conclude that there is a common question affecting the entire putative class. See Culley v. Lincare Inc., 2017 6 WL 3284800, at *6 (E.D. Cal. Aug. 2, 2017) (granting a motion to decertify a regular rate 7 overtime class where the bonus plan was ambiguous as to whether the bonuses were non- 8 discretionary). 9 The memorandum of understanding also only applies to employees who are subject to a 10 collective bargaining agreement and are not part of this class. (ECF No. 45-3 at 449-452.) District 11 Judge Drozd previously ruled that those employees’ overtime claims are preempted by the 12 LMRA. (See ECF No. 23.) While Plaintiffs argue that those employees’ overtime claims are not 13 preempted because there is no collective bargaining exemption from the FLSA, Plaintiffs’ 14 operative complaint does not allege a violation of the FLSA and the Court has recommended 15 denying Plaintiffs’ request for leave to amend to assert such a claim. (See ECF Nos. 1-29, 45-1 at 16 20.) Further, Plaintiffs are requesting certification of a class action under Rule 23, not a collective 17 action under the FLSA. The procedures and requirements for collective actions are independent 18 of, and unrelated to, those for class certification. Lillehagan v. Alorica, Inc., 2014 WL 2009031, 19 at *6 (C.D. Cal. May 15, 2014); see also Campbell v. City of Los Angeles, 903 F.3d 1090, 1101 20 (9th Cir. 2018) (“Collective actions and class actions are creatures of distinct texts . . . that impose

21 distinct requirements.”).

22 In their briefing, Plaintiffs argue that the Court must accept Plaintiff’s “prism” of the case

23 and not the merits. (ECF Nos. 45-1 at 9, 57 at 7-8.) This argument is based upon the standards that state courts, and not federal courts, consider in granting class certification. (See id.) As the 24 Ninth Circuit has explained, “it is not correct to say a district court may consider the merits to the 25 extent that they overlap with class certification issues; rather, a district court must consider the 26 merits if they overlap with the Rule 23(a) requirements.” Ellis, 657 F.3d at 981 (citations omitted, 27 emphasis in original). 28 23 Case 1:19-cv-00264-DAD-EPG Document 67 Filed 03/30/21 Page 24 of 43

1 Plaintiffs also leave open the possibility that there may be other unidentified forms of

2 renumeration that Defendant failed to include in the regular rate of pay. (See ECF No. 45-1 at 19-

3 20.) This is too speculative for class certification. As the parties seeking class certification,

4 Plaintiffs bear the burden of showing that the requirements of Rule 23 are met and must produce

5 facts “affirmatively demonstrat[ing]” that certification is warranted. Dukes, 564 U.S. at 350; see also Haitayan v. 7-Eleven, Inc., 2021 WL757024, at *5 (C.D. Cal. Feb. 8, 2021) (reasoning that 6 “vague and conclusory arguments are insufficient to satisfy a plaintiff’s burden” at class 7 certification). 8 Plaintiffs thus have not satisfied the Rule 23(a) commonality requirement for the Regular 9 Rate/Overtime class. Dukes, 564 U.S. at 359 (“Because respondents provide no convincing proof 10 of a companywide . . . policy, we have concluded that they have not established the existence of 11 any common question.”); see also Chavez v. AmeriGas Propane, Inc., 2015 WL 12859721, at *28 12 (C.D. Cal. Feb. 11, 2015) (finding that a plaintiff had failed to establish commonality where he 13 “proffered no evidence that, contrary to its stated policy of including non-discretionary bonuses in 14 the regular rate of pay, [the defendant] had a practice of omitting such bonuses from the 15 calculation”). The Court therefore recommends that the motion for class certification be denied as 16 to the Regular Rate/Overtime Class. 17 5. Sub-Class 4: Meal Period Regular Rate Sub-Class and Sub-Class 5: Rest Period 18 Regular Rate Sub-Class 19 Plaintiffs seek to certify a proposed Meal Period Regular Rate Sub-Class and a proposed 20 Rest Period Regular Rate Sub-Class. Again, the operative complaint did not identify these

21 subclasses in its class definition allegations. (See ECF No. 1-29.)

22 For the reasons explained above, the Court has recommended denying Plaintiffs’ motion

23 for leave to amend. The Court therefore recommends that certification of these subclasses be denied because they are not in the operative complaint. See Berlowitz v. Nob Hill Masonic Mgmt., 24 No. 96-cv-01241-MHP, 1996 WL 724776, at *2 (N.D. Cal. Dec. 6, 1996) (“The court is bound by 25 the class definition provided in the complaint [and] will not consider certification of the class 26 beyond the definition provided in the complaint unless plaintiffs choose to amend it.”); see 27 also Costelo v. Chertoff, 258 F.R.D. 600-05 (C.D. Cal. 2009) (“The Court is bound to class 28 24 Case 1:19-cv-00264-DAD-EPG Document 67 Filed 03/30/21 Page 25 of 43

1 definitions provided in the complaint and, absent an amended complaint, will not consider

2 certification beyond it.”).

3 The Meal Period Regular Rate Sub-Class and the Rest Period Regular Rate Sub-Class are

4 also based on the theory that Defendant improperly excluded non-discretionary bonuses from

5 class members’ regular rate of pay. (See ECF Nos. 45-1 at 21, 57 12-13.) These subclasses pose the same issues as the Regular Rate/Overtime class, except that they also include union 6 employees, and thus would suffer from the same defects. 7 ii. Class 2: Rounding Class and Sub-Class 1: Rounding Clinical Sub-Class 8 Plaintiffs seek to certify the Rounding Class and Rounding Clinical Sub-Class for 9 Defendant’s failure to pay minimum wages and/or overtime wages based on Defendant’s 10 unlawful rounding policy. (ECF Nos. 45 at 3, 45-1 at 14-17.) 11 a. Applicable Law Regarding Rounding 12 Federal law permits employers to use rounding policies under certain circumstances: 13 It has been found that in some industries, particularly where time clocks are used, 14 there has been the practice for many years of recording the employees' starting 15 time and stopping time to the nearest 5 minutes, or to the nearest one-tenth or quarter of an hour. Presumably, this arrangement averages out so that the 16 employees are fully compensated for all the time they actually work. For enforcement purposes this practice of computing working time will be accepted, 17 provided that it is used in such a manner that it will not result, over a period of time, in failure to compensate the employees properly for all the time they have 18 actually worked. 19 29 C.F.R. § 785.48(b). “[A]n employer's rounding practices comply with § 785.48(b) if the 20 employer applies a consistent rounding policy that, on average, favors neither overpayment nor 21 underpayment.” Alonzo v. Maximus, Inc., 832 F. Supp. 2d 1122, 1126 (C.D. Cal. 2011) (citations 22 omitted). California does not have a statute or regulation expressly addressing the permissibility 23 of using a rounding policy, but state courts have followed the federal standard. See See’s Candy 24 Shops, Inc. v. Superior Court, 210 Cal.App.4th 889, 903 (2012) (“The policies underlying the 25 federal regulation—recognizing that time rounding is a practical method for calculating work 26 time and can be a neutral calculation tool for providing full payment to employees—apply 27 equally to employee-protective policies embodied in California Labor law.”); but see Donohue, -- 28 25 Case 1:19-cv-00264-DAD-EPG Document 67 Filed 03/30/21 Page 26 of 43

1 Cal. --, 2021 WL 728871, at *4-9 (holding that a rounding practice is not consistent with the 2 Labor Code provision providing for premium pay for shortened or missed meal periods). 3 b. Analysis 4 Plaintiffs concede that Defendant’s rounding policy is uniform for all employees and 5 rounds both up and down. (ECF Nos. 45-1 at 15.) However, Plaintiffs’ theory is that, when 6 coupled with Defendant’s time and attendance policies, the rounding mechanism is unlawful and 7 underpays employees. (Id. at 15-17.) Specifically, Defendant does not offer a “grace” period, 8 requires its employees to start each work period on time, and has a strict no overtime policy,

9 resulting in “Defendant reap[ing] the benefit of up to fourteen (14) minutes of unpaid time per

10 shift.” (Id. at 15.)

11 Plaintiffs have presented evidence that Defendant has a written policy to employ a seven-

12 minute rounding rule, which rounds all punches to the nearest quarter hour. (ECF No. 45-3 at 8.) Plaintiffs have also presented evidence that Defendant has written policies requiring non-exempt 13 employees to record their start time for their shifts no earlier than seven minutes before the 14 scheduled shift start and to record their stop time no later than seven minutes after the scheduled 15 shift stop. (Id. at 10, 18.) Additionally, overtime may only be worked with prior approval of an 16 employee’s supervisor. (Id. at 22.) Plaintiffs also provide a declaration from Brian Kriegler, 17 Ph.D., opining that his review of sampled timekeeping records indicated that 56.2% of shifts, 18 68.5% of pay periods, and 78.9% of employees were potentially underpaid due to Defendant’s 19 rounding policy.7 (ECF No. 45-2 at 53-54.) 20 Defendant does not dispute the existence of the rounding policy and instead asserts that 21 the policy is lawful and neutral on its face. (ECF No. 53 at 8-10, 17-19.) Defendant points to a 22 declaration from its expert opining that the difference between rounded and actual hours was only 23 .26%, which was “statistically meaningless” (Id. at 9, 18.) 24 However, this argument does not defeat a showing of commonality. The question is not 25 whether Plaintiffs will ultimately prevail; the question is whether Plaintiffs have established a 26 7 These figures were “weighted” to account for differences in pay between straight time, overtime, and 27 double time. (See ECF No. 45-2 at 76-78.) If overtime and double time are not weighted, Dr. Kriegler’s analysis indicates that 56.2% of shifts, 66.7% of pay periods, and 77.4% of employees are potentially underpaid due to the 28 rounding policy. (Id. at 54.) 26 Case 1:19-cv-00264-DAD-EPG Document 67 Filed 03/30/21 Page 27 of 43

1 colorable factual basis that Defendant imposed unlawful policies or practices applicable to all 2 class members. Additionally, this defense tends to support, rather than undermine, class 3 certification because the issue of whether the violation was de minimis will be suitable for 4 resolution across the entire class. See Aldapa, 323 F.R.D. at 340 (“[D]istrict courts have held that 5 this [de minimis] defense does not preclude class certification[.]”). To the extent Defendant 6 disputes the accuracy or completeness of Plaintiffs’ interpretation of the applicable records, 7 Defendant may provide its own analysis of the data. However, that analysis would remain 8 common to all employees.

9 Defendant also argues that Plaintiffs’ theory fails because they did not “submit actual

10 evidence that putative class members consistently modified their timeclock habits due to a fear of

11 discipline under the tardiness and overtime policies.” (ECF No. 53 at 18.) The Court does not

12 agree that Plaintiffs are required to submit such evidence to establish commonality. Plaintiffs have presented sufficient evidence that Defendant had common written policies that resulted in 13 underpayment. “Generally, ‘challeng[ing] a policy common to the class as a whole creates 14 a common question whose answer is apt to drive the resolution of the litigation.’” Mejia v. 15 Walgreen Co., 2020 WL 6887749, at *4 (E.D. Cal. Nov. 24, 2020) (quoting Ontiveros v. Zamora, 16 2014 WL 3057506, at *5 (E.D. Cal. July 7, 2014)). This raises a common issue of whether the 17 rounding policy is unlawful as applied. Additionally, there are common methods of proof— 18 Defendant’s timekeeping records—that will facilitate class-wide resolution. See Selk v. Pioneers 19 Mem’l Healthcare Dist., 2014 WL 12729167, at *4 (S.D. Cal. Apr. 22, 2014) (finding 20 commonality met where facially neutral rounding policy was alleged to be unlawful as applied 21 with defendant’s time and attendance policies). 22 Indeed, Defendant has already filed a motion for partial summary judgment on the 23 rounding issue. (See ECF No. 43.) Without commenting on the merits of that pending motion, 24 Defendant’s motion and Plaintiff’s opposition reveal that this issue can be decided on a class- 25 wide basis. 26 Finally, Defendant argues that individualized issues predominate over common ones for 27 the Rounding Class and Rounding Clinical Sub-Class because application of Defendant’s

28 tardiness policy “varies significantly based on the unit, managerial discretion, and an employee’s 27 Case 1:19-cv-00264-DAD-EPG Document 67 Filed 03/30/21 Page 28 of 43

1 personal circumstances[.]” (ECF No. 53 at 10.) Additionally, Plaintiffs have not submitted any

2 evidence that putative class members in fact modified their habits because they were afraid of

3 being disciplined under the tardiness and overtime policies. (Id. at 18-19.) Plaintiffs, in turn,

4 contend that whether or not Defendant enforces its policies is not relevant because “[e]mployees

5 are put on notice of the potential infractions and respond accordingly.” (ECF No. 47 at 11.) Common issues predominate over individual ones within this class. As described above, 6 Defendant maintained universal rounding, tardiness, and overtime policies applicable to all 7 putative class members. Plaintiffs’ claims will succeed or fail based on the ultimate determination 8 of whether those policies are lawful both facially and as applied using Defendant’s timekeeping 9 records. Selk, 2014 WL 12729167, at *6 (“A rounding practice is lawful only if it is neutral both 10 facially and as applied.”) (citation omitted.) 11 Defendant submits some evidence that some supervisors did not discipline employees for 12 tardiness or failure to obtain approval for overtime. (See ECF No. 53-3 at 5-7, 53-2.) However, 13 the existence of some individualized questions does not necessarily preclude class treatment so 14 long as those issues can be effectively managed and do not predominate over common ones. 15 Marlo v. United Parcel Serv., Inc., 251 F.R.D. 476, 484 (C.D. Cal. 2008), aff'd, 639 F.3d 942 (9th 16 Cir. 2011) (“The commonality and predominance requirements are designed to promote the goals 17 of efficiency and judicial economy by focusing on whether a class action makes sense based upon 18 the balance of common and individual issues. The presence of some individualized issues does 19 not preclude class treatment.”). 20 The Court finds that Plaintiffs have met the commonality and predominance requirements

21 for the Rounding Class and Rounding Clinical Sub-Class.

22 i. Class 3: On Call/Standby Class

23 Plaintiffs seek to certify the On Call/Standby Class for Defendant’s failure to pay minimum wages due to a policy and procedure of requiring employees in clinical departments to 24 be placed on call/standby. (ECF No. 45-1 at 22-23.) 25 a. Applicable Law Regarding On-Call or Standby Time 26 “On-call waiting time may be compensable if it is spent primarily for the benefit of the 27 employer and its business.” Gomez v. Lincare, Inc., 173 Cal.App.4th 508, 523 (2009) (citing 28 28 Case 1:19-cv-00264-DAD-EPG Document 67 Filed 03/30/21 Page 29 of 43

1 Armour & Co. v. Wantock (1944) 323 U.S. 126, 132 (1944). “California courts considering

2 whether on-call time constitutes hours worked have primarily focused on the extent of the

3 employer's control.” Mendiola v. CPS Sec. Sols., Inc., 60 Cal. 4th 833, 840 (2015). Factors that

4 courts consider when determining whether standby time is compensable include:

5 “(1) whether there was an on-premises living requirement; (2) whether there were excessive geographical restrictions on employee's movements; (3) whether the 6 frequency of calls was unduly restrictive; (4) whether a fixed time limit for response was unduly restrictive; (5) whether the on-call employee could easily 7 trade on-call responsibilities; (6) whether use of a pager could ease restrictions; and (7) whether the employee had actually engaged in personal activities during 8 call-in time.”

9 Owens v. Local No. 169, 971 F.2d 347, 351 (9th Cir. 1992)). 10 b. Analysis 11 Plaintiffs contend that Defendant’s on call/standby policy results in a failure to pay 12 minimum wages because Defendant pays this time at a rate of $7.00 per hour for nurses, $5.50 13 per hour for Technicians in Surgery and Endoscopy, and $4.50 per hour for all other licensed and 14 non-licensed time, but the minimum wage during the relevant time period was $8.00-$11.00. 15 (ECF No. 45-1 at 22.) Defendant argues that Plaintiffs have not established commonality because

16 the applicable multi-factor test requires individualized inquiries to adjudicate, and employees

17 testified that the thirty-minute requirement was not strictly enforced. (ECF No. 53 at 24-25.)

18 Plaintiffs submit evidence of collective bargaining agreements between Defendant and the

19 California Nurses Association covering the period from June 1, 2013 through June 30, 2021, as well as an agreement between Defendant and the American federation of State, County, and 20 Municipal Employees Local 2703 for the periods from July 1, 2014 through June 30, 2018, and 21 from September 24, 2018, through June 30, 2022. (ECF No. 45-3 at 454-481.) These documents 22 state that the employees subject to the respective agreements are required to provide Defendant 23 with a telephone number where he or she can be reached and, if called to work, respond and 24 report to the hospital within thirty minutes. (Id. at 457, 463, 472, 479.) These documents also 25 confirm the rates of pay described by Plaintiffs. (Id.) 26 As to Defendant’s argument that there may be some individualized issues regarding some 27 of the applicable factors, those individualized issues are not necessarily central to resolution of 28 29 Case 1:19-cv-00264-DAD-EPG Document 67 Filed 03/30/21 Page 30 of 43

1 the On Call/Standby Class claims. The focus of Plaintiffs’ theory underlying the On Call/Standby

2 Class is on Defendant’s policy, which applied uniformly to all members of the class. See In re

3 Wells Fargo Home Mortg. Overtime Pay Litig., 571 F.3d 953, 958 (9th Cir. 2009)(“[C]ourts have

4 long found that comprehensive uniform policies detailing the job duties and responsibilities of

5 employees carry great weight for certification purposes.”). Whether an employee engaged in personal activities may include some individual issues, but they do not predominate over all 6 common issues. See Henry v. Med-Staff, Inc., 2007 WL 19998653, at *11 (C.D. Cal. 2007) 7 (analyzing the personal activities factor as to all employees covering on-call assignments). For 8 example, Defendant itself argues that the thirty-minute response time was not unduly restrictive 9 as a matter of law, and this argument applies to the entire class. (See ECF No. 53 at 24.) 10 Moreover, Defendant’s policy does not allow for individualized determination of rates based on 11 the employee’s personal activities. Additionally, Defendant imposes a uniform requirement that 12 employees provide a telephone number where he or she can be reached and, if called to work, 13 respond and report within thirty minutes. Plaintiffs are entitled to challenge such a blanket policy. 14 This issue of whether this policy is lawful is common to the entire class and, on balance, 15 individual issues do not predominate over common ones. 16 The Court therefore finds that commonality and predominance are satisfied for the On 17 Call/Standby Class. 18 ii. Class 4: Second Meal Break Class and Sub-Class 3: Meal Break Sub-Class 19 Plaintiffs seek to certify the Second Meal Break Class and Meal Break Sub-Class for 20 Defendant’s failure to provide a second meal break to employees who worked shifts of more than

21 ten hours. (ECF Nos. 45 at 3, 45-1 at 23-24.)

22 a. Applicable Law Regarding Meal Breaks

23 Under California law, an employer may not “require any employee to work during any meal . . . period mandated by an applicable order of the Industrial Welfare Commission.” Cal. 24 Lab. Code § 226.7(a). IWC Order No. 5-2001, in turn, provides: 25

26 11. Meal Periods

27 (A) No employer shall employ any person for a work period of more than five (5) hours without a meal period of not less than 30 minutes, except that when a 28 work period of not more than six (6) hours will complete the day's work the 30 Case 1:19-cv-00264-DAD-EPG Document 67 Filed 03/30/21 Page 31 of 43

1 meal period may be waived by mutual consent of the employer and the employee. Unless the employee is relieved of all duty during a 30 minute meal 2 period, the meal period shall be considered an “on duty” meal period and counted as time worked. An “on duty” meal period shall be permitted only 3 when the nature of the work prevents an employee from being relieved of all duty and when by written agreement between the parties an on-the-job paid 4 meal period is agreed to. The written agreement shall state that the employee may, in writing, revoke the agreement at any time. 5 (B) If an employer fails to provide an employee a meal period in accordance 6 with the applicable provisions of this order, the employer shall pay the employee one (1) hour of pay at the employee's regular rate of compensation 7 for each workday that the meal period is not provided.

8 8 Cal. Code Regs. § 11050; see also Cal. Lab. Code § 512(a) (accord). To satisfy its duty to 9 “provide” a meal break, an employer must “relieve the employee of all duty for the designated 10 period, but need not ensure that the employee does no work.” Brinker Rest. Corp. v. Superior 11 Court, 53 Cal.4th 1004, 1034 (2012); see also Kenny v. Supercuts, Inc., 252 F.R.D. 641, 645 12 (N.D. Cal. 2008) (reasoning that California law only requires the employer to provide a meal 13 period and does not impose liability “for a failure to ensure that an employee actually availed 14 herself of the meal period”). 15 b. Analysis 16 Plaintiffs seek certification of “Defendant’s admitted policy of never scheduling or 17 providing a second meal period to its employees who work 12 hour shifts.” (ECF No. 45-1 at 24.)

18 Plaintiffs rely on the depositions of Rachel Abril and Beatriz Ramirez as establishing this policy.

19 (Id.) Ms. Abril testified that, during the time she oversaw telemetry, all employees that she knew

20 of had a meal waiver, she was not aware of any employees revoking their meal waiver, and none

21 of the employees ever asked for a second meal on a shift. (ECF No. 45-5 at 25.) Similarly, Ms. Ramirez testified that, when she was “the director,” she was not aware of any 12-hour shift 22 employee that did not have a meal waiver, she did not know of any employee that revoked a meal 23 waiver, and she cannot remember any employee requesting a second meal on a shift. (Id. at 31.) 24 Plaintiffs also cite to the declaration of Dr. Kriegler, which stated that his review of sampled 25 timekeeping and payroll records produced by Defendant revealed 48,029 second meal breaks 26 were completely missed or late and Defendant made 2,755 Meal Premium Payments. (ECF No. 27 45-2 at 56.) 28 31 Case 1:19-cv-00264-DAD-EPG Document 67 Filed 03/30/21 Page 32 of 43

1 Defendant argues that Plaintiffs have not offered evidence of a uniform practice to deny 2 suitable meal breaks. (ECF No. 53 at 25-26.) Defendant offers declarations from several 3 employees stating that they were given an opportunity to take a second meal break, voluntarily 4 waived the meal period, never revoked the waiver, and preferred to waive one of their two meal 5 periods so that they could complete their shift sooner. (ECF Nos. 53 at 26, 53-2.) Some 6 employees also provided declarations stating that they took second meal periods when they 7 wanted to do so. (Id.) Because there was no universal practice to deny second meal breaks, 8 Defendants contend that Plaintiffs would need to prove each particular occasion where an

9 employee did not have an opportunity to take a timely second break. (ECF No. 53 at 26-27.)

10 Plaintiffs have not shown that Defendant has a common policy or practice to deny second

11 meal breaks. Ms. Abril and Ms. Ramirez testified that, to their knowledge, the employees that

12 they supervised had signed a meal break waiver and did not request a second meal break on shift. IWC Order No. 5-2001 does not require an employer to provide a meal break if it is waived by 13 the mutual consent of the employer and employee. See 8 Cal. Code Regs. § 11050 14 (“Notwithstanding any other provision of this order, employees in the health care industry who 15 work shifts in excess of eight (8) total hours in a workday may voluntarily waive their right to one 16 of their two meal periods.”). Here, Plaintiffs’ evidence is equally consistent with a common or 17 even universal desire to waive a second meal break.8 Plaintiffs have not provided any evidence 18 that Defendant had a policy of failing to provide second meal breaks to employees who wanted 19 8 20 On reply, Plaintiffs argue that the meal period waivers were not voluntarily signed. (ECF No. 57 at 14.) While this argument was not raised in Plaintiffs’ moving papers, to the extent it can be considered responsive to 21 issues raised in Defendant’s opposition, Plaintiffs have not submitted evidence supporting this theory. See Provenz v. Miller, 102 F.3d 1478, 1483 (9th Cir. 1996) (reasoning that a district court should not consider new evidence 22 presented in a reply without giving the non-movant an opportunity to respond); see also Edwards v. Toys “R” Us, 527 F.Supp.2d 1197, 1205 n. 31 (C.D. Cal. 2007) (“Evidence is not ‘new,’ however, if it is submitted in direct 23 response to proof adduced in opposition to a motion.”). Plaintiffs do not point to any declarations or deposition testimony from employees stating that signing a meal waiver was in any way involuntary. In contrast, Defendant 24 provides declarations from multiple employees stating that no one told them to sign a meal waiver in order to be hired and they did not feel pressured to sign it. (See ECF No. 53-2.) Plaintiffs instead argue that the fact that “all employees have signed the waiver” raises a presumption that the waiver is not voluntary. (ECF No. 57 at 14.) 25 Plaintiffs rely on Escano v. Kindred Healthcare Operating Co. 2013 WL 816146 (C.D. Cal. Mar. 5, 2013) for the proposition that “the question of the voluntariness of the waiver is a prime issue for certification.” (ECF No. 47 at 26 14.) However, in Escano, the plaintiff submitted evidence in support of their class certification motion indicating that employees were required to sign the waiver as a condition of employment. Escano, 2013 WL 816146, at *9-10. 27 Plaintiffs have not done so here. See id. at *8 (“Plaintiffs have the ultimate burden to prove that Defendants have a policy of inadequate meal provision. Plaintiffs must provide common evidence of inadequate meal periods to . . . 28 obtain class certification.”). 32 Case 1:19-cv-00264-DAD-EPG Document 67 Filed 03/30/21 Page 33 of 43

1 them. Additionally, Dr. Kriegler’s statistical analysis does not establish that Defendant had an 2 unlawful policy or practice of denying second meal breaks especially because, as Defendant 3 concedes, many employees signed a second meal period waiver. This evidence does not indicate 4 that the entire class and subclass were systematically improperly denied second meal breaks. 5 Rule 23 is not a “mere pleading standard” and the party seeking class certification must 6 “affirmatively demonstrate his compliance with the Rule—that is, he must be prepared to prove 7 that there are in fact sufficiently numerous parties, common questions of law or fact, etc.” 8 Parsons v. Ryan, 754 F.3d 657, 674 (9th Cir. 2014) (quoting Dukes, 564 U.S. at 350-51)

9 (emphasis in original). Plaintiffs have not met this standard because they have not affirmatively

10 shown that there are any central questions of law or fact common to the Second Meal Break Class

11 and Meal Break Sub-Class. In other words, Plaintiffs have not established that this class and

12 subclass share an experience of being denied a second meal break rather than voluntarily waiving or declining to take one. The Court therefore recommends denying the motion for class 13 certification as to the Second Meal Break Class and Meal Break Sub-Class. 14 iii. Sub-Class 2: Meal Period Waiver Sub-Class 15 Plaintiffs seek to certify the Meal Period Waiver Sub-Class because the meal waivers 16 employees signed gave Defendant a right to revoke the waiver. (ECF Nos. 45 at 3, 45-1 at 24-25.) 17 a. Applicable Law Regarding Meal Period Waivers 18 IWC Order No. 5-2001 provides: 19 (D) Notwithstanding any other provision of this order, employees in the health 20 care industry who work shifts in excess of eight (8) total hours in a workday may 21 voluntarily waive their right to one of their two meal periods. In order to be valid, any such waiver must be documented in a written agreement that is voluntarily 22 signed by both the employee and the employer. The employee may revoke the waiver at any time by providing the employer at least one (1) day's written notice. 23 The employee shall be fully compensated for all working time, including any on- the-job meal period, while such a waiver is in effect. 24 8 Cal. Code Regs. § 11050. 25 b. Analysis 26 According to Plaintiffs, Defendant provides all new hires with a meal waiver that 27 improperly gives Defendant a right to revoke the waiver. (ECF No. 45-1 at 24-25.) Plaintiffs 28 33 Case 1:19-cv-00264-DAD-EPG Document 67 Filed 03/30/21 Page 34 of 43

1 contend that this language is facially invalid as a matter of law because “[n]othing in the Wage 2 Order or Statement of Basis contemplates revocation by the employer.” (Id. at 25.) Defendant 3 argues, among other things, that nothing in the Wage Order or Labor Code prohibits the mutual 4 revocation language that Plaintiffs challenge. (ECF No. 53 at 28.) The Court agrees. 5 The parties do not dispute that Defendant’s meal period waiver permits both Defendant 6 and the employee to revoke it. Here, the applicable meal waiver states: 7 This will certify that I regularly work a shift in excess of eight hours and wish to waive one of the two meal periods I would otherwise be entitled to receive under 8 California law. In accordance with the requirements of state law, I hereby voluntarily agree to waive one meal period each day. I understand that, as a result 9 of this waiver, I will receive only one meal period during each day of work and will be paid for all working time, but not for the one duty-free meal period I 10 receive. I also understand that I or the Hospital may revoke this “Meal Period Waiver” at any time by providing at least one day’s advance notice in writing of 11 the decision to do so. This waiver will remain in effect until I exercise, or the Hospital exercises, the option to revoke it. 12 I acknowledge that I have read the waiver, understand it, and voluntarily agree to its provisions. 13 (ECF No. 45-3 at 486, 495, 493.) 14 The plain language of the IWC Order requires the waiver to be voluntary, and permits the 15 employee to revoke the waiver at any time by providing at least one day’s written notice. See 8 16 Cal. Code Regs. § 11050. Defendant’s meal waiver complies with this requirement on its face. 17 The wage order does not address the employer’s right to revoke the waiver either way. Plaintiffs 18 have not cited to any authority, and the Court has found none, which makes an employer’s right 19 to revoke a meal waiver unlawful. Although Plaintiffs cite to Lubin v. the Wackenhut Corp., 5 20 Cal.App.5th 926, 950-51 (2016) in support of their contention that there are no individualized 21 questions involved with this class, Lubin involved meal waivers that did not allow the employee 22 to revoke the agreement. In that case, the plaintiff established through deposition testimony that 23 some employees signed meal waivers that did not have a revocation clause at all, while others 24 signed meal waivers that gave the employee the right to revoke the meal waiver at any time Id. at

25 938. The appellate court in Lubin reversed the trial court’s order granting decertification due to

26 individualized issues. Id. at 953. However, the meal waivers only contained revocation clauses

27 that gave the employee the right to revoke the waiver; Lubin did not address an employer’s right

28 to revoke a meal waiver. See id. at 938. Here, Plaintiffs have not alleged or presented any

34 Case 1:19-cv-00264-DAD-EPG Document 67 Filed 03/30/21 Page 35 of 43

1 evidence indicating that Defendant’s meal period waivers failed to give employees the right to 2 revoke the agreement. 3 Plaintiffs have thus not alleged that Defendant engaged in unlawful conduct that caused a 4 class-wide injury.9 See Falcon, 457 U.S. at 157 (requiring the plaintiff to demonstrate that class 5 members “have suffered the same injury”). While this reasoning turns on the merits of Plaintiffs’ 6 claim, courts may deny class certification where Plaintiff fails to allege illegal conduct to the 7 class. Davidson v. O’Reilly Auto Enterprises, LLC, 968 F.3d 955, 968 (9th Cir. 2020) (denying 8 certification where the plaintiff did not “implicate any illegal practice”). Put another way, it is

9 Plaintiffs’ burden to identify a common legal issue related to illegal conduct justifying

10 certification of a class.

11 Because Plaintiffs have not met the commonality requirement, the Court recommends

12 denying the motion for class certification as to the Meal Period Waiver Sub-Class. iv. Class 6: Rest Break Class 13 Plaintiffs seek to certify the Rest Break Class for Defendant’s failure to authorize or 14 permit ten-minute rest periods for its patient care and non-patient care hourly employees. (ECF 15 Nos. 45 at 3, 45-1 at 25.) 16 a. Applicable Law Regarding Rest Breaks 17 IWC Order No. 5-2001 provides: 18 12. Rest Periods 19

20 (A) Every employer shall authorize and permit all employees to take rest periods, which insofar as practicable shall be in the middle of each work period. The 21 authorized rest period time shall be based on the total hours worked daily at the rate of ten (10) minutes net rest time per four (4) hours or major fraction thereof. 22 However, a rest period need not be authorized for employees whose total daily work time is less than three and one-half (3 1/2) hours. Authorized rest period time 23 shall be counted, as hours worked, for which there shall be no deduction from 24 wages.

25 (B) If an employer fails to provide an employee a rest period in accordance with the applicable provisions of this order, the employer shall pay the employee one 26 9 Although Plaintiffs describe Defendant’s right to revoke as an “intimidation factor,” they do not explain 27 how, if at all, Defendant having the ability to revoke a meal waiver and thereby obligating itself to provide an employee with a meal break or to pay a meal period premium is intimidating or otherwise causes any injury. (See 28 ECF No. 45-1 at 25.) 35 Case 1:19-cv-00264-DAD-EPG Document 67 Filed 03/30/21 Page 36 of 43

1 (1) hour of pay at the employee's regular rate of compensation for each workday that the rest period is not provided. 2 8 Cal. Code Regs. § 11050. As with meal periods, employers are required to make rest breaks 3 available but are not required to ensure that employees actually take their rest breaks. Cleveland 4 v. Groceryworks.com, LLC, 200 F.Supp.3d 924, 953 (N.D. Cal. 2016). However, “employers 5 must relieve employees of all duties” during their rest breaks and must “relinquish control over 6 how employees spend their time.” Augustus v. ABM Sec. Servs., Inc., 2 Cal. 5th 257, 269 7 (2016), as modified on denial of reh'g (Mar. 15, 2017). 8 b. Analysis 9 Plaintiffs do not contend that Defendant’s rest period policy was facially invalid. Indeed, 10 Plaintiffs submit a copy of Defendant’s rest period policy, which provides for fifteen-minute 11 breaks for each work period of four or more hours and payment of one hour of penalty pay for 12 any missed rest period. (ECF No. 45-3 at 483.) According to Plaintiff, despite this compliant

13 policy, Defendant had an unlawful practice of failing to provide relief coverage for rest breaks.

14 (ECF No. 45-1 at 25.) Employees were required to carry Spectralink phones and keep them on

15 during their rest breaks, which amounts to on-duty rest breaks in violation of the law. (Id.)

16 In support of this argument, Plaintiffs submit a declaration from Plaintiff Martha Ochoa stating that she and her coworkers were frequently unable to take meal and rest breaks due to lack 17 of coverage, and they were often not allowed to report missed meal and rest break periods 18 because the director and/or charge nurse would get upset. (ECF No.45-2 at 278-79.) Additionally, 19 she was, at times, required to carry a Spectralink phone during meal and rest breaks and could not 20 leave the premises because the range of the Spectralink phone was only on the hospital premises. 21 (Id. at 279.) Plaintiff Rachel Clover similarly declared that she and her co-workers were 22 frequently unable to take breaks due to understaffing and were required to carry a Spectralink 23 phone during breaks. (Id. at 273.) A third employee testified that the range of Spectralink phones 24 is limited to the range of Defendant’s WiFi system. (ECF Nos. 45-1 at 25, 45-5 at 49.) Plaintiffs 25 also submit deposition testimony from Plaintiffs Ochoa and Clover stating that they received an 26 uninterrupted rest break approximately fifty percent of the time and eighty percent of the time, 27 respectively. (ECF No. 45-5 at 36, 43.) 28 36 Case 1:19-cv-00264-DAD-EPG Document 67 Filed 03/30/21 Page 37 of 43

1 Defendant, in turn, argues that this evidence does not establish a common policy or

2 practice of denying rest breaks to all members of the class. (ECF No. 53 at 29-30.) Defendant

3 provides declarations from twenty-six employees stating that they understood it was Defendant’s

4 policy to provide rest breaks and they always either received these breaks or were paid a premium

5 if their break was missed. (ECF Nos. 53 at 29-30, 53-2.) Defendant also provides declarations from twenty employees stating that they understood they were not supposed to respond to calls 6 during their rest breaks and were required to turn off their devices or hand them off to another 7 employee. (ECF Nos. 53 at 20, 53-2.) Some employees declared that they complied with this 8 practice, and others declared that they sometimes mistakenly took their phone with them and 9 either ignored calls or sometimes opted to respond and state that they were on a break and would 10 respond later. (Id.) Defendant additionally provided declarations from employees stating that they 11 were permitted to leave the premises for rest breaks and actually did so. (Id.) 12 On reply, Plaintiffs submitted additional depositions from six employees indicating that 13 sometimes they did not receive rest breaks or took their communication devices with them during 14 rest breaks. (See ECF Nos. 57, 57-4.) One employee, Jua Herr, testified that “most” nurses kept 15 their phones with them during breaks and described this as a “practice.” (ECF No. 57-4 at 22.) 16 Ms. Herr also testified that she sometimes chose not to take a rest break to catch up on 17 documentation. (Id. at 16.) Other employees testified that they were not supposed to take their 18 communication devices with them on breaks but sometimes chose to do so, and also sometimes 19 chose not to take rest breaks, (Id. at 39-40, 53, 57, 82-83, 122-23.) 20 The evidence Plaintiffs have submitted does not demonstrate the existence of a systematic

21 policy or practice requiring employees to miss or take on-duty rest periods. Plaintiff’s theory—

22 that some departments were understaffed, some employees were required to carry Spectralink

23 phones and could not leave the premises, and some supervisors were angry when employees reported a missed break—does not apply uniformly class-wide. Even Plaintiffs’ declarations do 24 not allege there was a uniform policy or practice. Likewise, while the deposition testimony 25 Plaintiffs submit on reply establishes that some employees chose not to take breaks or chose to 26 keep their communication devices during their breaks, this testimony does not establish a 27 common policy or practice attributable to Defendant to deny breaks. Indeed, the deposition 28 37 Case 1:19-cv-00264-DAD-EPG Document 67 Filed 03/30/21 Page 38 of 43

1 testimony indicates that the employees considered it a personal choice as to whether or not they

2 took their breaks or carried their communication devices during their breaks, and none of them

3 testified that a supervisor told them to do so. Moreover, Defendant has submitted several

4 declarations from its employees saying they could take their rest breaks.

5 While this evidence does suggest that some employees, including Plaintiffs and likely including other individuals, were denied their rest breaks, or were required to be in contact during 6 those breaks, it falls short of establishing a common issue or problem addressing the class. See 7 Dukes, 564 U.S. at 359 (“Because respondents provide no convincing proof of a companywide . . 8 . policy, we have concluded that they have not established the existence of any common 9 question.”); Campbell v. Vitran Express Inc, 2015 WL. 7176110, at *7 (C.D. Cal. Nov. 12, 2015) 10 (“Courts generally hold that sufficient evidence of an unofficial policy exists where the plaintiff 11 offers multiple declarations from employees attesting to the uniform application of the policy.”) 12 (citations omitted); Amiri v. Cox Commc'ns California, LLC, 272 F. Supp. 3d 1187, 1196 (C.D. 13 Cal. 2017) (“Plaintiff's allegations about his personal situation do not demonstrate that Defendant 14 had a policy that affected all ‘aggrieved employees’[.]”). While the Court is sympathetic to 15 Plaintiffs, it cannot find based on the evidence submitted that there is a common issue throughout 16 the class resulting in a lack of legally compliant rest breaks. 17 The Court therefore finds that Plaintiffs have not established commonality for the Rest 18 Break Class and recommends that the motion for class certification be denied as to the Rest Break 19 Class. 20 v. Class 5: Pay Stub Class and Class 7: Waiting Time Penalty Class

21 Plaintiffs seek to certify the Pay Stub Class and Waiting Time Penalty Class as derivative

22 classes. (ECF Nos. 45 at 4, 45-1 at 26-27.)

23 Because the claims of these classes are entirely derivative of the claims of the proposed wage classes, “they meet or fail to meet the commonality and predominance requirements to the 24 same extent.” Pena v. Taylor Farms Pacific, Inc., 305 F.R.D. 197, 223 (E.D. Cal. 2015). Indeed, 25 Defendant solely argues that these classes are not amenable to certification because the primary 26 classes are not amenable to certification. (ECF No. 53 at 35.) 27 /// 28 38 Case 1:19-cv-00264-DAD-EPG Document 67 Filed 03/30/21 Page 39 of 43

1 As discussed above, the Court has found the commonality requirement met for the

2 Rounding Class, Rounding Clinical Sub-Class, and On Call/Standby Class. Therefore, the

3 derivative Pay Stub Class and Waiting Time Class meet the commonality requirement for the

4 same reasons.

5 1. Rule 23(b) Given the Court’s recommendations regarding Rule 23(a), the Court now looks to whether 6 the Rule 23(b) requirements are met only for the Rounding Class, Rounding Clinical Sub-Class, 7 On Call/Standby Class, Pay Stub Class, and Waiting Time Penalty Class. 8 Plaintiffs first argue that Rule 23(b)(1)(A) is satisfied because, if the motion is not 9 granted, individual putative class members will file separate lawsuits and one court may rule 10 differently than another. (ECF No. 45-1 at 29-30.) Defendant does not address whether 11 certification under Rule 23(b)(1)(A) is appropriate. (See ECF No. 53.) 12 Here, Plaintiffs ask the Court to enjoin Defendant from engaging in the challenged 13 practices. (ECF No. 1-29.) As to Plaintiffs’ request for injunctive relief, class certification is 14 proper under Rule 23(b)(1)(A) because the rule contemplates situations where the Defendant is 15 “obligated to treat members of the class alike.” AmChem, 521 U.S. at 614 (citation and quotation 16 marks omitted). If class certification were denied and some individuals secured an injunction and 17 others did not, Defendant could be held to “incompatible standards of conduct.” Fed. R. Civ. B. 18 31(b)(1)(A); see Russel v. Kohl’s Dep’t Stores, Inc., 2015 WL 12748629, at *4 (C.D. Cal. Dec. 4, 19 2015) (certifying a class under Rule 23(b)(1)(A) where the plaintiffs sought injunctive relief 20 requiring the defendant to refrain from the alleged unlawful conduct). The Court therefore finds

21 that certification under Rule 23(b)(1)(A) is appropriate to the extent Plaintiffs are certifying the

22 classes listed above and seeking injunctive relief.

23 The Court also finds that certification under Rule 23(b)(3) is appropriate for the Rounding Class, Rounding Clinical Sub-Class, On Call/Standby Class, Pay Stub Class, and Waiting Time 24 Penalty Class. As discussed above, the Court finds that the predominance requirement has been 25 met for these classes and subclasses. 26 As to superiority, Plaintiffs argue that class resolution “is superior to trying the claims of 27 the approximately 2, 215 putative class members in a piecemeal fashion.” (ECF No. 45-1 at 31.) 28 39 Case 1:19-cv-00264-DAD-EPG Document 67 Filed 03/30/21 Page 40 of 43

1 Additionally, this case can be effectively managed with the use of Defendant’s own timekeeping

2 and payroll records through statistical evidence. (Id. at 32.) Defendant argues that its timekeeping

3 and payroll records alone are not sufficient to determine liability for the On Call/Standby Class

4 and instead each employee must be asked each of the numerous applicable factors. (ECF No. 53

5 at 25.) In determining superiority, the Court looks to issues such as class members' interests in 6 individual control of the litigation, the extent of any litigation already begun by class members, 7 the desirability of concentrating the litigation in a particular forum, and the likely difficulties in 8 managing a class action. See Fed. R. Civ. P. 23(b)(3)(A)–(D). There has been no showing here 9 that any of the putative class members have a separate interest in individual control of the 10 litigation, or that suits by class members are already pending on these same issues. Moreover, the 11 types of claims at issue here usually involve relatively small amounts of damages, for which the 12 only practical means of seeking redress is class treatment. See Zinser, 253 F.3d at 1190 (“Where 13 damages suffered by each putative class member are not large, this factor weighs in favor of 14 certifying a class action.”); see also Local Joint Exec. Bd. of Culinary/Bartender Trust Fund v. 15 Las Vegas Sands, Inc., 244 F.3d 1152, 1163 (9th Cir.2001) (“If plaintiffs cannot proceed as a 16 class, some—perhaps most—will be unable to proceed as individuals because of the disparity 17 between their litigation costs and what they hope to recover.”). 18 “Finally, while defendants do raise some issues that they believe will result in difficulties 19 managing the class action at a later stage in this litigation, this does not defeat class certification.” 20 Aldapa, 323 F.R.D. at 340. “The Ninth Circuit has emphasized that administrative feasibility is

21 not a stand-alone prerequisite to class certification, and that there is a ‘well-settled presumption

22 that courts should not refuse to certify a class merely on the basis of manageability concerns.’” Id.

23 (quoting Briseno, 844 F.3d at 1128). Defendant’s main manageability concern with the On Call/Standby Class is not persuasive because, as noted above, the crux of Plaintiff’s theory is the 24 application of a uniform policy, which can largely be determined on a class-wide basis. 25 Accordingly, the Court finds that the Rule 23(b)(3) requirement is met and recommends that the 26 motion for certification be granted as to the Rounding Class, Rounding Clinical Sub-Class, On 27 Call/Standby Class, Pay Stub Class, and Waiting Time Penalty Class. 28 40 Case 1:19-cv-00264-DAD-EPG Document 67 Filed 03/30/21 Page 41 of 43

1 IV. CONCLUSION AND RECOMMENDATION

2 For the reasons set forth above, the Court RECOMMENDS that:

3 2. Plaintiffs’ motion for leave to amend (ECF No. 35) be DENIED;

4 3. Plaintiffs’ motion for class certification (ECF No. 45) be GRANTED IN PART and

5 DENIED IN PART; 4. The following classes and subclasses be certified: 6 a. All non-exempt hourly employees of Defendant who worked at least one (1) 7 day at the Mercy Medical Center Merced facility from July 13, 2013 to the 8 date of the class certification order and who were paid pursuant to Defendant’s 9 rounding policy and practice (“Rounding Class”); 10 b. All non-exempt hourly clinical employees of Defendant who worked at least 11 one (1) day at the Mercy Medical Center Merced facility from July 13, 2013 to 12 the date of the class certification order and who were paid pursuant to 13 Defendant’s rounding policy and practice (“Rounding Clinical Sub-Class”); 14 c. All non-exempt hourly patient care employees of Defendant who worked at 15 least one (1) day at the Mercy Medical Center Merced facility and worked at 16 least one (1) standby shift from January 14, 2015 to the date of the class 17 certification order (“On Call/Standby Class”); 18 d. All non-exempt hourly employees of Defendant who worked at least one (1) 19 day at the Mercy Medical Center Merced facility from July 13, 2016 through 20 the date of class certification order who were provided a paystub (a.k.a. wage

21 statement) from Defendant (“Pay Stub Class”);

22 e. All California based non-exempt hourly employees of Defendant who worked

23 for Defendant at any time from January 14, 2016 through the date of class certification, who are no longer employed by Defendant and were not paid all 24 their earned wages (“Waiting Time Penalty Class”); 25 5. Certification be denied as to all other classes and subclasses not specifically addressed 26 in paragraphs 4(a)-(e) above, including the Regular Rate/Overtime Class, the Second 27 Meal Break Class, the Meal Period Waiver Sub-Class, the Meal Break Sub-Class, the 28 41 Case 1:19-cv-00264-DAD-EPG Document 67 Filed 03/30/21 Page 42 of 43

1 Meal Period Regular Rate Sub-Class, the Rest Break Class, and the Rest Period

2 Regular Rate Sub-Class;

3 6. The Court find Plaintiffs Robert Van Bebber, Rachel Clover, and Martha Ochoa to be

4 adequate class representatives and confirm Plaintiffs Van Bebber and Ochoa as class

5 representatives for the Rounding Class, Plaintiff Clover as class representative for the Rounding Clinical Sub-Class, Plaintiffs Ochoa and Clover as class representatives for 6 the On Call/Standby Class, and Plaintiffs Van Bebber, Clover, and Ochoa as class 7 representatives for the Pay Stub Class and Waiting Time Penalty Class; 8 7. The Court find Joseph Antonelli and Janelle Carney of Law Office of Joseph Antonelli 9 and Robert L. Starr and Adam M. Rose of Frontier Law Center to be adequate to 10 represent the class in this proceeding and confirm them as class counsel; 11 8. The parties be directed to meet and confer promptly upon service of an order adopting 12 these findings and recommendations concerning the submission of a joint stipulated 13 class notice and distribution plan in compliance with Rule 23(c)(2)(B); 14 9. The parties be directed to file either a stipulated class notice and distribution plan or a 15 notice that no stipulation can be reached within twenty-one (21) days of service of this 16 order. If the parties cannot agree to a class notice or distribution plan, Plaintiffs be 17 directed to submit a proposed class notice and distribution plan within thirty-five (35) 18 days of service of this order, Defendant be given fourteen (14) days following 19 Plaintiffs' submission of a proposed class notice and distribution plan to file any 20 objections thereto, and Plaintiffs be given seven (7) days thereafter to submit a reply;

21 and

22 10. This matter be referred back to the undersigned for further scheduling and other

23 proceedings consistent with the order adopting these findings and recommendations. These findings and recommendations will be submitted to the United States district judge 24 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 25 (14) days after being served with these findings and recommendations, the parties may file 26 written objections with the Court. The document should be captioned “Objections to Magistrate 27 Judge’s Findings and Recommendations.” The parties are advised that failure to file objections 28 42 Case 1:19-cv-00264-DAD-EPG Document 67 Filed 03/30/21 Page 43 of 43

1 within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772

2 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

3 IT IS SO ORDERED. 4

5 Dated: March 29, 2021 /s/ UNITED STATES MAGISTRATE JUDGE 6

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