1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ZABEENA MAHARAJ, RODOLFO Case No. 23-cv-04726-JSC SCHULZ, 8 Plaintiffs, ORDER RE: PLAINTIFFS’ MOTION 9 FOR CLASS CERTIFICATION v. 10 Re: Dkt. No. 62 THE HERTZ CORPORATION, 11 Defendant.
13 Plaintiffs are managerial employees of Defendant, a car rental company. Plaintiffs, on 14 behalf of a putative California class, allege Defendant misclassified them as exempt from various 15 wage and hour laws, and thus denied them wages, overtime, meal and rest periods, and accurate 16 wage statements, because Plaintiffs spend most of their time performing duties expected of hourly 17 employees. (Dkt. No. 42.)1 Before the Court is Plaintiffs’ motion for class certification. (Dkt. 18 No. 62.) Having carefully reviewed the parties’ briefing, and having had the benefit of oral 19 argument on March 5, 2026, the Court DENIES Plaintiffs’ motion. Plaintiffs have not met their 20 burden of showing common questions of law or fact predominate over questions affecting 21 individual members. 22 BACKGROUND 23 A. Plaintiffs’ Allegations and Motion for Class Certification 24 As relevant here, Defendant employed Plaintiffs as Operations Managers (OMs) and 25 Customer Service Managers (CSMs). (Dkt. No. 42 ¶¶ 14-16.) “Defendant utilizes California 26 27 1 OMs and CSMs as part of their workforce at its car rental locations. Their primary duties are 2 waiting on customers at the vehicle rental counter, driving vehicles from one location to another, 3 washing vehicles, handling vehicle returns, and general customer service.” (Id. ¶ 24.) “Named 4 Plaintiff Zabeena Maharaj … was employed by Defendant from approximately August 2016 to 5 September 2022 as an Operations Manager in Oakland, California,” and Named Plaintiff Rodolfo 6 Schulz worked for Defendant between November 2013 and September 2021 as both a CSM and 7 an OM. (Id. ¶¶ 14-15.) 8 Defendant’s policy “uniformly classif[ied] OMs and CSMs as exempt from federal 9 overtime provisions” and “from the protections of the California Labor Code.” (Id. ¶¶ 25, 28.) 10 Despite their classification as managers, “Plaintiffs’ … primary duty was not management.” (Id. ¶ 11 33.) Plaintiffs “spent the vast majority of their time performing” “non-exempt duties” such as 12 “general customer service and vehicle preparation.” (Id. ¶ 34.) And so, Defendant misclassified 13 Plaintiffs as exempt when Plaintiffs were effectively hourly employees. As such, Plaintiffs bring 14 nine causes of action under California’s Labor Code, unfair competition law, and Private 15 Attorneys’ General Act. (Id. ¶¶ 38-130.) 16 Plaintiffs move to certify the following class under Federal Rule of Civil Procedure 17 23(b)(3): “All persons employed by Hertz in California as exempt-classified Operations Managers 18 (‘OMs’) at any time from June 30, 2021, through the date of class certification.” (Dkt. No. 62 at 19 2.) Plaintiffs also move to appoint Plaintiffs Maharaj and Schulz as class representatives and to 20 designate Plaintiffs’ counsel as class counsel. (Id. at 8.) 21 B. Plaintiffs’ Evidence 22 Plaintiffs attach the deposition of Defendant’s person most knowledgeable (“PMK”), Greg 23 Boardman, and Defendant’s discovery responses. (Dkt. No. 62-6.) Mr. Boardman is the director 24 of human resources for southern California. (Id. at 11:8-11.) As relevant here, Defendant’s 25 discovery responses demonstrate “[s]ince June 30, 2021, Hertz has employed 160 Operations 26 Managers in California.” (Id. at 76.) 27 Mr. Boardman testified as to the standardized nature of an OM’s duties. He explained 1 corporate decision.” (Id. at 34:12-18.) An OM’s role is to “support[] all of [Defendant’s] front- 2 end … hourly employees… essentially making sure that flow of business is happening, conducting 3 audits throughout the day, assisting with any customer-related issues that maybe another employee 4 is unable to handle[.]” (Id. at 20:24-21:8.) Additionally, “the primary responsibilities and the 5 primary duties of operations managers remain constant across locations, but the emphasis might 6 change from one location to the other and the intensity might change” based on the volume of the 7 airport and staffing levels. (Id. at 28:20-29:18.) But across the board, due to the company’s 8 collective bargaining agreement, OMs are “not permitted to conduct” “bargain work”; for 9 instance, an operations manager can “assist” in conducting rentals, “but they can’t rent” cars 10 directly to customers. (Id. at 23:10-24:16.) 11 “[A]ll operations managers in California in Hertz locations are classified as exempt[.]” 12 (Id. at 31:20-23.) Non-exempt positions include front-end and back-end employees like “customer 13 service representatives, vehicle service attendants, instant-return representatives, exit gate 14 representatives, courtesy bus drivers, and transporters.” (Id. at 32:1-13.) Mr. Boardman explained 15 the decision to globally classify operations managers as exempt in California was “made at the 16 corporate level,” but Mr. Boardman does not know “what factors were taken into account” in that 17 determination. (Id. at 52:2-23.) 18 The remainder of Plaintiffs’ evidence is declarations from putative class members. Every 19 declarant attests, among other things, each spent over 50% of their time doing work expected to be 20 done by hourly employees. (Dkt. No. 62-2 ¶ 3; Dkt. No. 62-3 ¶ 6; Dkt. No. 62-4 ¶ 5; Dkt. No. 62- 21 5 ¶ 7.) Lead Plaintiff Schulz attests he spent 80% of his time doing such work because the 22 location was understaffed and “[a]s a matter of practice, I would receive an email … or a walkie- 23 talkie communication[] that before the managers left home, they would need to wash [a] certain 24 number of cars, usually between 10 and 15 cars, depending on how busy the day was.” (Dkt. No. 25 62-3 ¶¶ 6-8.) Another putative class member, Mr. Trice, similarly attests “upper management 26 routinely directed” him to perform non-exempt work like washing cars. (Dkt. No. 62-4 ¶ 6.) 27 Additionally, both lead plaintiffs explain some tasks required a process by which they 1 (Dkt. No. 62-3 ¶¶ 7-9; Dkt. No. 62-5 ¶ 9.) Mr. Schulz attests he entered his ID number into 2 Defendant’s system when he washed cars. (Dkt. No. 62-3 ¶¶ 7-9.) By contrast, Ms. Maharaj 3 states she “would mostly” rent out cars “using employee ID numbers of front-end employees, 4 which was the common practice,” so front-end employees could receive “credits,” “extra 5 bonuses,” and “commissions.” (Dkt. No. 62-5 ¶ 9.) But it was also common practice “in [her] 6 location” to leave a “written note with my initials” inside the car in case follow-up was needed, 7 then dispose of the note afterwards if follow-up was not needed. (Id.) 8 C. Defendant’s Evidence 9 Defendant submits the depositions of Plaintiffs’ declarants, as well as declarations of 10 Operations Managers and people who supervised or worked with Plaintiffs’ declarants. Broadly 11 speaking, at their depositions, Plaintiffs’ declarants testified they performed many of the primary 12 duties of OMs as reflected in job descriptions, but reaffirmed at least 50% of their time was spent 13 performing work expected of non-exempt employees. (See generally Dkt. No. 77-1 at 70-352.)2 14 Unlike Plaintiffs’ declarants, the current and former Operations Managers who submitted 15 declarations in opposition attest, among other things, they spent at most 20% of their time 16 performing non-exempt work. (See, e.g., Dunker Dec. ¶ 13; Gravatt Dec. ¶ 7; Espiritu Dec. ¶ 8.) 17 In broad strokes, the supervisors and coworkers weigh in on Plaintiffs’ declarants’ 18 testimony.3 For instance, Mr. Gravatt states his “belief that if an OM is spending the majority of 19 their time … on hourly tasks, they are not managing effectively, nor are they performing the 20 expected duties of the job.” (Gravatt Dec. ¶ 7.) Mr. Gravatt, who worked with Lead Plaintiff 21 Schulz, specifically recalls Mr. Schulz spent “[e]xcessive time performing hourly tasks and was 22 not effectively managing when he did this. … I felt that Mr. Schulz was often not competently 23 performing the core managerial functions of the OM position.” (Id. ¶ 16.) Ms. Dela Rosa, a 24
25 2 As it appears on ECF, Defendant’s evidence is combined into one document. (Dkt. No. 77-1.) As such, when citing to a declaration in Defendant’s evidence, the Court will refer to the 26 declarant’s last name. The Court will cite page numbers of depositions as they appear on ECF. 3 Plaintiffs characterize the declarations from supervisors and coworkers as “attacks on Plaintiffs’ 27 credibility.” (Dkt. No. 78 at 17-18.) To the extent Defendant’s declarants contradict Plaintiffs’ 1 general manager who supervised Lead Plaintiff Maharaj and declarant Mr. Trice, estimates OMs 2 “were called upon to cover for hourly workers no more than two hours per shift” during busier 3 months and less than one hour per shift during the slower months. (Dela Rosa Dec. ¶ 13.) Ms. 4 Dela Rosa also corroborates that employees scan their badge before performing certain tasks, then 5 attests “I checked Mr. Trice’s records, and found that he scanned his badge 119 times between 6 June 30, 2020, and February 24, 2024. This averages out to fewer than four badge scans per 7 month. Based on my training and experience, this indicates that Mr. Trice rarely performed hourly 8 work.” (Id. ¶ 17.) 9 DISCUSSION 10 “Federal Rule of Civil Procedure 23 governs the maintenance of class actions in federal 11 court.” Briseno v. ConAgra Foods, Inc., 844 F.3d 1121, 1124 (9th Cir. 2017). “Before it can 12 certify a class, a district court must be ‘satisfied, after a rigorous analysis, that the prerequisites’ of 13 both Rule 23(a) and 23(b)(3) have been satisfied.” Olean Wholesale Grocery Coop., Inc. v. 14 Bumble Bee Foods LLC, 31 F.4th 651, 664 (9th Cir. 2022) (cleaned up). Under Rule 23(a), a case 15 is appropriate for certification if: (1) the class is so numerous that joinder of all members is 16 impracticable; (2) there are questions of law or fact common to the class; (3) the claims or 17 defenses of the representative parties are typical of the claims or defenses of the class; and (4) the 18 representative parties will fairly and adequately protect the interests of the class. Fed. R. Civ. P. 19 23(a). 20 Rule 23(b)(3) requires the Court to find “the questions of law or fact common to class 21 members predominate over any questions affecting only individual members, and that a class 22 action is superior to other available methods for fairly and efficiently adjudicating the 23 controversy.” Fed. R. Civ. P. 23(b)(3). “The predominance inquiry is ‘more demanding’ than the 24 commonality inquiry” because “the common issues must predominate.” DZ Reserve v. Meta 25 Platforms, Inc., 96 F.4th 1223, 1233 (9th Cir. 2024), cert. denied, 145 S. Ct. 1051 (2025) (quoting 26 Ahem Prods., Inc. v. Windsor, 521 U.S. 591, 623 (1997)). “[P]laintiffs wishing to proceed through 27 a class action must actually prove—not simply plead—that their proposed class satisfies each 1 and that proof must be by a preponderance of the evidence. Olean, 31 F.4th at 664. 2 A. The Requirements of Rule 23(a) Are Met 3 1. Numerosity and Adequacy of Representation 4 Plaintiffs have satisfied their burden of showing “the class is so numerous that joinder of 5 all members is impracticable” and “the representative parties will fairly and adequately protect the 6 interests of the class.” Fed. R. Civ. P. 23(a)(1), (4). Here, numerosity is met because “[s]ince 7 June 30, 2021,” the beginning of the class period, “Hertz has employed 160 Operations Managers 8 in California.” (Dkt. No. 62-6 at 76.) Additionally, both lead plaintiffs attest they understand the 9 responsibilities of being class representatives and have no conflicts of interest. (Dkt. No. 62-3; 10 Dkt. No. 62-5.) Defendant does not challenge Plaintiffs’ showing on these two requirements. 11 2. Commonality and Typicality 12 “The commonality and typicality requirements of Rule 23(a) tend to merge.” General 13 Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 157 n.13 (1982). So, the Court will address 14 both requirements together. As for commonality, “Rule 23(a)(2) has been construed permissively. 15 All questions of fact and law need not be common to satisfy the rule. The existence of shared legal 16 issues with divergent factual predicates is sufficient, as is a common core of salient facts coupled 17 with disparate legal remedies within the class.” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 18 (9th Cir. 1998), overruled on other grounds by Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 19 (2011). Typicality, too, is construed permissively: “[u]nder the rule’s permissive standards, 20 representative claims are ‘typical’ if they are reasonably co-extensive with those of absent class 21 members; they need not be substantially identical.” Hanlon, 150 F.3d at 1020 (quoting Fed. R. 22 Civ. P. 23(a)(3)). “The test of typicality is whether other members have the same or similar 23 injury, whether the action is based on conduct which is not unique to the named plaintiffs, and 24 whether other class members have been injured by the same course of conduct.” Evon v. Law 25 Offices of Sidney Mickell, 688 F.3d 1015, 1030 (9th Cir. 2012) (cleaned up). Typicality is not met 26 when the named plaintiff is “subject to unique defenses which threaten to become the focus of the 27 litigation.” Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992). 1 operations managers in California in Hertz locations,” meaning all proposed class members, “are 2 classified as exempt[.]” (Dkt. No. 62-6 at 31:20-23.) Plaintiffs therefore raise the same injury as 3 absent class members: they were classified as non-exempt, yet spent at least 50 percent of their 4 time performing non-exempt work, resulting in California Labor Code violations. (See Dkt. No. 5 42 ¶¶ 25, 28, 33-34; Dkt. No. 62-2 ¶ 3; Dkt. No. 62-3 ¶ 6; Dkt. No. 62-4 ¶ 5; Dkt. No. 62-5 ¶ 7.) 6 And there is common evidence, such as Mr. Boardman’s testimony, job descriptions and trainings, 7 delineating what constitutes exempt work (i.e., work expected of Operations Managers) vs. non- 8 exempt work (i.e., work expected of hourly employees). (See, e.g., Dkt. No. 62-6 at 20:24-34:18.) 9 The named plaintiffs also testified standardized job postings accurately described the job 10 descriptions of Operations Managers. (See generally Dkt. No. 77-1 at 70-352). So, there are 11 common questions of law and fact and Plaintiffs’ claims are “reasonably co-extensive with those 12 of absent class members.” Hanlon, 150 F.3d at 1019–20. 13 Defendant’s arguments to the contrary are unavailing. Defendant argues: (1) the actual 14 work Plaintiffs claim they performed was “not typical of other operations managers;” (2) 15 Plaintiffs’ declarations do not illustrate a typical experience of class members because the 16 evidence is individualized and anecdotal; and (3) a common policy of misclassification cannot 17 satisfy commonality or typicality. (Dkt. No. 77 at 13–16). The first two arguments misstate 18 Plaintiffs’ burden. Plaintiffs need not prove their “experience[s]” were typical of class members; 19 their burden is to show common questions and their “claims and defenses” are typical, Fed. R. 20 Civ. P. 23(a)(3), that is, “reasonably co-extensive” of class members. Hanlon, 150 F.3d at 1020. 21 Again, both prongs are “construed permissively.” Id. at 1019–20. 22 Moreover, as for all three arguments, Defendant’s authority is not grounded in Rule 23(a). 23 Defendant cites four cases for its first two arguments, but all four cases are predicated on Rule 24 23(b)(3), its analogue under California law, or the Fair Labor Standards Act.4 Similarly, 25 4 The first case, Casey v. Home Depot, 2016 WL 7479347 (C.D. Cal. Sept. 15, 2016), is based on 26 the Rule 23(b)(3) predominance prong, not the commonality requirement in Rule 23(a)(2). Id. at *23. “The predominance inquiry is ‘more demanding’ than the commonality inquiry” because 27 “the common issues must predominate.” DZ Reserve, 96 F.4th at 1233 (quoting Windsor, 521 1 Defendant cites three cases for its argument “a common policy or practice of treating employees 2 as exempt does not necessarily establish that [employees] were misclassified, because the policy 3 may have accurately classified some employees and misclassified others.” (Dkt. No. 77 at 18) 4 (cleaned up) (brackets in opposition). But, again, all three holdings are based on Rule 23(b)(3)’s 5 predominance prong, not commonality or typicality. See Marlo v. United Parcel Service, Inc., 639 6 F.3d 942, 948–49 (9th Cir. 2011); In re Wells Fargo Home Mortg. Overtime Pay Litig., 571 F.3d 7 953, 957 n.3 (9th Cir. 2009) (“There is no dispute concerning the Rule 23(a) factors.”); Vinole v. 8 Countrywide Home Loans, Inc., 571 F.3d 935, 946 (9th Cir. 2009). So, Defendant has not 9 defeated Plaintiffs’ showing of commonality and typicality. 10 B. Plaintiffs Have Not Shown Common Issues Predominate5 11 Rule 23(b)(3) requires “the questions of law or fact common to class members 12 predominate over any questions affecting only individual members[.]” Fed. R. Civ. P. 23(b)(3). 13 Predominance “focuses on the relationship between the common and individual issues in the case 14 and tests whether proposed classes are sufficiently cohesive to warrant adjudication by 15 representation.” Wang v. Chinese Daily News, 737 F.3d 538, 545 (9th Cir. 2013) (cleaned up). 16 The predominance analysis has three steps:
17 First, we identify which questions are central to the plaintiffs’ claim. Second, we determine which of these questions are common to the 18 class and which present individualized issues. Third, we analyze whether the common questions predominate over the individual 19 questions. 20 DZ Reserve, 96 F.4th at 1233. 21 Applying step one here, this is a misclassification case brought by managerial employees 22 in California, so the central question is whether Operations Managers were misclassified as 23
24 Rule 23 does not govern. Id. at 1131. Defendant’s other two cases–Kizer v. Tristar Risk Management, 13 Cal. App. 5th 830 (2017) and Walsh v. Ikon Office Solutions, Inc., 148 Cal. App. 25 4th 1440 (2007)–address class actions under California law, which essentially merges the commonality and predominance prongs of Rule 23. See id. at 1450. Both California cases 26 emphasize the plaintiffs’ failure to demonstrate “common proof” of class-wide issues, which, if analyzed under Rule 23, would be dispositive under the predominance inquiry, but not necessarily 27 dispositive under commonality. Id. at 1455–56, Kizer, 13 Cal. App. 5th at 844. 1 exempt under the “executive exemption” in Title 8, Section 11090(1)(A)(1) of the California Code 2 of Regulations. (Dkt. No. 62 at 13-14; Dkt. No. 77 at 9-10.)6 The exemption applies to “any 3 employee” in the transportation industry who meets six requirements:
4 (a) Whose duties and responsibilities involve the management of the enterprise in which he/she is employed or of a customarily recognized 5 department or subdivision thereof; and
6 (b) Who customarily and regularly directs the work of two or more other employees therein; and 7 (c) Who has the authority to hire or fire other employees or whose 8 suggestions and recommendations as to the hiring or firing and as to the advancement and promotion or any other change of status of other 9 employees will be given particular weight; and
10 (d) Who customarily and regularly exercises discretion and independent judgment; and 11 (e) Who is primarily engaged in duties which meet the test of the 12 exemption. The activities constituting exempt work and non-exempt work shall be construed in the same manner as such items are 13 construed in the following regulations under the Fair Labor Standards Act effective as of the date of this order: 29 C.F.R. Sections 541.102, 14 541.104-111, and 541.115-116. Exempt work shall include, for example, all work that is directly and closely related to exempt work 15 and work which is properly viewed as a means for carrying out exempt functions. The work actually performed by the employee 16 during the course of the workweek must, first and foremost, be examined and the amount of time the employee spends on such work, 17 together with the employer’s realistic expectations and the realistic requirements of the job, shall be considered in determining whether 18 the employee satisfies this requirement
19 (f) Such an employee must also earn a monthly salary equivalent to no less than two (2) times the state minimum wage for full-time 20 employment. Full-time employment is defined in Labor Code Section 21 6 Plaintiffs’ motion does not identify the exemption under which class members have been 22 misclassified. (See generally Dkt. Nos. 62.) The operative complaint repeatedly cites Industrial Welfare Commission Order No. 5-2001, which governs the “public housekeeping industry.” (See 23 generally Dkt. No. 42); Cal. Code Regs., Tit. 8 § 11050(1)(A)(1). That order states it does not apply to “persons employed in administrative, executive, or professional capacities” under three 24 exemptions: an executive exemption, an administrative exemption, and a professional exemption. Cal. Code Regs., Tit. 8 § 11050(1)(B)(1)-(3). By contrast, Defendant’s opposition identifies Order 25 No. 9-2001, which governs the transportation industry and has the same three exemptions, verbatim. Compare id. § 11050(1)(B)(1)-(3), with id. § 11090(1)(A)(1)-(3). Defendant identifies 26 the executive exemption as applicable, and Plaintiffs’ Reply did not disagree. (See generally Dkt. No. 78.) So, for purposes of this motion, the Court assumes Defendant is correct the executive 27 exemption in Order No. 9-2001 forms the basis of Plaintiffs’ misclassification theory. If anything, 515(c) as 40 hours per week. 1 Cal. Code Regs., Tit. 8 § 11090(1)(A)(1). 2 Of these six requirements, the only one central to Plaintiffs’ misclassification claim is 3 requirement (e), which involves the duties Plaintiffs are “primarily engaged in.” Id. § 4 11090(1)(A)(1)(e). Stated differently, Plaintiffs’ theory as to why class members were 5 misclassified does not rely on any other requirement of this exemption. Take, for example, the 6 named Plaintiff Zabeena Maharaj, whose declaration appears to only challenge requirement (e). 7 (Dkt No. 62-5 ¶ 7 (“I would estimate that I spent over 50% of [my] time on nonexempt activities 8 during any pay period[.]”)) In her declaration and at her deposition, she did not challenge the 9 other requirements of the exemption, namely whether “her duties and responsibilities involve … 10 management,” she “customarily and regularly directs the work” of other employees, she “has the 11 authority to hire or fire other employees,” she “customarily and regularly exercises discretion and 12 independent judgment,” or her salary is twice the minimum wage. Cal. Code Regs., Tit. 8 § 13 11090(1)(A)(1)(a)-(d), (f); (see generally Dkt. No. 62-5; Dkt. No. 77-1.) The same is true of every 14 class member for whom Plaintiffs submitted a declaration: their testimony only raises an issue as 15 to the duties in which they are primarily engaged. (See generally Dkt. No. 62-2 (Mr. Valencia’s 16 declaration attests 50% of his time is spent on non-exempt duties); Dkt. No. 77-1 at 247-297 (at 17 his deposition, Mr. Valencia did not dispute he had managerial duties, directed other employees, 18 or other exemption requirements); Dkt. No. 62-3 (Mr. Schulz’s declaration attests approximately 19 80% of his time spent on non-exempt duties); Dkt. No. 77-1 at 152-246 (at his deposition, Mr. 20 Schulz did not dispute other exemption requirements); Dkt. No. 62-4 (Mr. Trice’s declaration 21 attests he spent over 50% of his time on non-exempt duties); Dkt. No. 77-1 at 298-352 (at his 22 deposition, Mr. Trice did not dispute other exemption requirements)). 23 So, the question central to Plaintiffs’ claims are which duties Operations Managers were 24 “primarily engaged in” during the class period. Cal. Code Regs., Tit. 8 § 11090(1)(A)(1)(e). 25 Under the exemption’s text, the answer to this question hinges on “[t]he work actually performed 26 by the employee during the course of the workweek,” and “the amount of time the employee 27 spends on such work, together with the employer’s realistic expectations and the realistic 1 requirements of the job.” Id. 2 “Under step two, we determine which of those [questions] are ‘common’—which means 3 they are ‘capable of being established through a common body of evidence, applicable to the 4 whole class.’” DZ Reserve, 96 F.4th at 1233 (quoting Olean, 31 F.4th at 666). The California 5 Supreme Court offers guidance. In Duran v. U.S. Bank National Assn., 59 Cal. 4th 1, 26–28 6 (2014), the court addressed a misclassification theory under a similar exemption from overtime 7 laws, the outside salesperson exemption, which applies to an employee who “customarily and 8 regularly work[s] more than half the working time away from the employer’s place of business 9 selling … or obtaining orders or contracts.” Id. at 26–27. The court summarized:
10 We have observed that some common questions about the exemption “are likely to prove susceptible of common proof” in a class action. 11 Job requirements and employer expectations of how duties are to be performed may often be established by evidence relating to a group 12 as a whole. But litigation of the outside salesperson exemption has the obvious potential to generate individual issues because the primary 13 considerations are how and where the employee actually spends his or her workday. Of course, the questions of actual performance and 14 employer expectations can be intertwined. For example, evidence that most members of a company’s sales force actually spend the majority 15 of their time working in the office might be relevant to show that the employer’s expectations regarding outside sales work were 16 unreasonable. Yet, as noted, the question is “first and foremost” how the employee's time is actually spent. Given California’s uniquely 17 quantitative approach to this exemption, some proof about how individual employees use their time will often be necessary to 18 accurately determine an employer’s overtime liability.
19 Id. at 27. Similarly, here, requirement (e) of the exemption calls for a “uniquely quantitative 20 approach” as to individual employees because, like the exemption in Duran, it requires “first and 21 foremost” “[t]he work actually performed by the employee … be examined.” Cal. Code Regs., 22 Tit. 8 § 11090(1)(A)(1)(e); Duran, 59 Cal. 4th at 27. And under the terms of requirement (e), this 23 “uniquely quantitative,” question must be answered “together with the employer’s realistic 24 expectations and the realistic requirements of the job.” Duran, 59 Cal. 4th at 27. 25 So, here, the “work actually performed by the employee” requires at least some proof as to 26 how an individual class member spends their time. Based on Plaintiffs’ evidence of work actually 27 performed, which consists of each declarant’s estimate of the time they spent performing non- 1 exempt activities, this question cannot be answered exclusively “through a common body of 2 evidence.” Olean, 31 F.4th at 666. (See generally Dkt. Nos. 62-2, 62-3, 62-4, 62-5.) 3 Additionally, “the employer’s realistic expectations and the realistic requirements of the 4 job” is a mixed bag of class-wide and individualized evidence. Some evidence of the employer’s 5 expectations and the role’s requirements is class-wide. For instance, Defendant’s PMK testified 6 “the primary responsibilities and … duties of operations managers remain constant across 7 locations,” “operation managers in California at Hertz airport locations all have the same job 8 description,” and “defining and determining the job description for operations managers in 9 California” is “a corporate decision.” (Dkt. No. 62-6 at 29:12-18, 34:12-18.) Yet other evidence 10 of expectations and requirements, and particularly whether those are “realistic” under the 11 exemption, is individualized to class members or sub-classes; the same PMK also testified the 12 “emphasis” and “intensity” of class members’ duties “might change from one location to the 13 other.” (Id. at 29:12-18.) 14 Putative class members’ testimony, too, raises individualized questions about the 15 employer’s expectations and the job’s requirements. Mr. Schulz, for example, attests he was 16 instructed to “wash [a] certain number of cars,” which is non-exempt work, “[a]s a matter of 17 practice.” (Dkt. No. 62-3 ¶ 7.) Similarly, Mr. Trice attests “upper management routinely directed 18 Operations Managers” like him to do non-exempt work. (Dkt. No. 62-4 ¶ 6.) Plaintiffs do not 19 explain what common proof exists of this purported practice. And while Plaintiffs’ declarants 20 attest they spent most of their time on non-exempt work, Plaintiffs’ supervisors attest that was 21 neither required nor the employer’s expectation. (See, e.g., Dkt. No. 77-1 at 46, 53 (supervisors of 22 both lead plaintiffs each attest “Operations Managers were never expected to spend the majority of 23 their time performing the work of hourly workers, and any Operations Manager who did this 24 would simply not be performing the expected duties of the job.”)) So, Plaintiffs’ particular theory 25 of misclassification relies heavily on individualized evidence, as opposed to class-wide proof. 26 Having identified individual and class-wide questions, step three of the predominance 27 inquiry asks “whether the common, aggregation-enabling, issues in the case are more prevalent or 1 at 1233 (cleaned up). Here, Plaintiffs have not met their burden of showing common issues 2 predominate. Plaintiffs’ predominance analysis, which is less than half a page, only mentions 3 “standard job descriptions, uniform training modules, and centralized directives governing 4 workload and staffing.” (Dkt. No. 62 at 14-15.) But to prove misclassification, “[f]irst and 5 foremost” Plaintiffs must show “the work actually performed by the employee,” Cal. Code Regs., 6 Tit. 8 § 11090(1)(A)(1)(e), which is a “uniquely quantitative” question under California law. Cf. 7 Duran, 59 Cal. 4th at 27. Plaintiffs have not identified common proof of work actually performed; 8 rather, their evidence consists of class members’ estimates of their own work. (See Dkt. Nos. 62- 9 2, 62-3, 62-4, 62-5.) Defendant’s PMK testified the “emphasis” and “intensity” of class members’ 10 duties, and therefore the breakdown of work actually performed, “might change from one location 11 to the other.” (Cf. Dkt. No. 62-6 at 29:12-18, 34:12-18.) And although Plaintiffs emphasize 12 Defendant’s decision to classify Operations Managers as exempt was made at the corporate level, 13 that is not sufficient to establish common issues predominate because:
14 a blanket exemption policy “‘does not eliminate the need to make a factual determination as to whether class members are actually 15 performing similar duties.’” In re Wells Fargo Home Mortg. Overtime Pay Litig., 571 F.3d 953, 959 (9th Cir. 2009) (citation 16 omitted). Specifically, the existence of a policy classifying FTS as exempt from overtime-pay requirements does not necessarily 17 establish that FTS were misclassified, because the policy may have accurately classified some employees and misclassified others. 18 19 Marlo, 639 F.3d at 948; see also In re Wells Fargo Home Mortg. Overtime Pay Litig., 268 F.R.D. 20 604, 609 (N.D. Cal. 2010) (on remand, district court found individualized inquiries were required 21 despite the company’s blanket classification). Again, Plaintiffs do not have common proof “as to 22 whether class members are performing similar duties” or “accurately classified” because Plaintiffs 23 rely on declarants’ estimates of their own work. Marlo, 639 F.3d at 948 (cleaned up). So, 24 common issues do not predominate with respect to work actually performed. 25 Similarly, while there is some common proof with respect to “the employer’s realistic 26 expectations and the realistic requirements of the job,” individual issues predominate on this 27 question as well. Plaintiffs’ misclassification theory appears to be class members had additional 1 “Operations Managers were frequently directed by senior management to perform manual labor” 2 and class members’ testimony about work actually performed “directly contradict[s]” Defendant’s 3 PMK’s testimony. (Dkt. No. 62 at 11.) There is no common proof as to where these directions or 4 expectations came from; Plaintiffs’ evidence consists of individual declarations, which does not 5 satisfy predominance. See Casey, 2016 WL 747347 at *23 (declarations from seven employees is 6 not sufficient common proof regarding whether the class as a whole is misclassified because such 7 evidence is “anecdotal”). Plaintiffs’ supervisors and other class members, too, attest to different 8 expectations and breakdowns of the work they performed, which suggests common proof of 9 expectations and responsibilities does not predominate. Finally, California law requires an 10 examination as to whether the expectations and requirements are “realistic,” Cal. Code Regs., Tit. 11 8 § 11090(1)(A)(1)(e), yet Plaintiffs’ motion does not even say the word “realistic,” let alone 12 explain how that examination is susceptible to common proof. So, Plaintiffs have not met their 13 burden of showing common issues predominate. 14 Plaintiffs’ citation to Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 455–65 (2016) in reply is 15 unavailing. There, the Supreme Court permitted the use of representative statistical evidence of 16 how employees spent their time to show predominance. Id. at 453–57. Here, Plaintiffs rely on 17 individuals’ estimates of their own time, with no evidence showing this was typical or 18 representative of how the class as a whole spent their time. So, Tyson is inapposite. 19 Plaintiffs’ reply raises two new arguments regarding predominance. First, Plaintiffs assert 20 the expectation class members perform mostly exempt work is unrealistic due to a policy of 21 “corporate-mandated understaffing.” (Dkt. No. 78 at 11.) Second, Plaintiffs contend Defendant 22 “logs every rental transaction by the User ID of the employee who processed it.” (Id. at 9.) As 23 support for the latter, Plaintiffs cite class members’ testimony they used badges and logged IDs 24 before washing and renting cars, and excerpts of a deposition where defense counsel said they 25 could “pull the numbers” to prove a class member “did not do hundreds of rental agreements.” 26 (Id.) The “numbers” in these company logs, according to Plaintiffs, could provide common proof 27 of work actually performed, yet Defendant “knowingly withheld” this data. (Id.) 1 supporting declaration of Alfredo Torrijos because Plaintiffs did not make either argument in their 2 opening brief. See Provenz v. Miller, 102 F.3d 1478, 1483 (9th Cir. 1996) (parties may not 3 “submit ‘new’ evidence in their reply without affording [the opposing party] an opportunity to 4 respond. Such a result would be unfair.”) Plaintiffs’ motion did not identify a policy of 5 “corporate-mandated understaffing,” let alone common proof of such a policy.7 Nor did Plaintiffs 6 identify bulk data as potential common proof, despite submitting multiple declarations that 7 mentioned badges and unique employee IDs. On the record before the Court, Plaintiffs have not 8 shown Defendant “knowingly withheld” the data for purposes of discovery estoppel because the 9 only effort Plaintiffs made to obtain this data was one question at Mr. Boardman’s deposition– 10 “Does Dash maintain a log of when employees have logged into the Dash system?”–to which he 11 responded “I’m not certain.” (Dkt. No. 62-6 at 58:1-3.) A PMK’s testimony he is “not certain” 12 whether information exists, without more, does not establish a party “knowingly withheld” that 13 information. Plaintiffs’ counsel also did not ask a follow-up question to Mr. Boardman, attach the 14 deposition excerpts about “pull[ing] the numbers” to his declaration, or identify a discovery 15 request where Defendant would have been required to produce the bulk data. (See id.; Dkt. No. 16 78-1.) 17 C. Plaintiffs’ Requests to Compel and to Deny the Motion Without Prejudice 18 In reply, Plaintiffs request any denial of class certification be “without prejudice and paired 19 with an order requiring Hertz to produce classwide versions of the tracking data it admits exists.” 20 (Dkt. No. 78 at 18.) Plaintiffs request is DENIED. Plaintiffs offer no explanation for why they 21 did not seek this discovery prior to moving for class certification. They had more than enough 22 time to do so given the Court granted three requests to continue Plaintiffs’ deadline to file their 23
24 7 Even if the Court were to consider this argument under the predominance inquiry, Plaintiffs 25 again rely on individual declarants’ testimony regarding understaffing. Plaintiffs’ declarants also did not attest to a policy of understaffing; they testified they repeatedly received instructions to do 26 non-exempt work. Mr. Boardman also did not testify about an understaffing policy or anything of the sort. While Plaintiffs emphasize the PMK testified about the varying “emphasis” of class 27 members’ duties by location (Dkt. No. 62-6 at 29:12-18, 34:12-18), that is a far cry from common 1 class certification motion. (Dkt. Nos. 50, 56, 58.) And even with those continuances, Plaintiffs 2 missed the deadline. Over Defendant’s objection, the Court nonetheless permitted Plaintiffs to 3 move for class certification after the deadline for doing so. (Dkt. No. 69.) Further, Plaintiffs were 4 aware of the data as, explained above, their declarants testify they used badges and logged IDs 5 before washing and renting cars. (See, e.g., Dkt. No. 62-1 at ¶ 7.) In these circumstances, the 6 Court declines to reopen discovery for the purposes of class certification. 7 Moreover, even if Plaintiffs acquired bulk data showing when class members entered their 8 ID information, Plaintiffs have not explained how such data would allow them to meet the 9 predominance requirement. There is no evidence Defendant recorded how long an employee 10 spent on particular tasks, so even if some tasks were recorded, how long the class member spent 11 performing those tasks would still require individual testimony. Further, Lead Plaintiff Maharaj 12 attests she “would mostly” rent out cars “using employee ID numbers of front-end employees, 13 which was the common practice.” (Dkt. No. 62-5 ¶ 9.) She used her own ID number when doing 14 non-exempt work “by [her]self.” (Id. ¶ 10.) So, her testimony shows it was “common practice,” 15 or perhaps common practice “in [her] location,” for her non-exempt work to “mostly” not be 16 captured in Defendant’s bulk data. (See id ¶¶ 9-10.) And even if the bulk data revealed 17 representative statistical evidence as to the work class members performed, that is only part of the 18 relevant inquiry because the work actually performed must be examined “together with the 19 employer’s realistic expectations and the realistic requirements of the job.” Cal. Code Regs., Tit. 20 8 § 11090(1)(A)(1)(e). As noted above, Plaintiffs’ particular theory of misclassification shows the 21 evidence of expectations and requirements is less susceptible to class-wide proof. Therefore, the 22 Court, in its discretion, declines to allow Plaintiffs to move yet again for class certification after 23 the deadline for doing so. 24 CONCLUSION 25 The Court DENIES Plaintiffs’ motion for class certification as Plaintiffs have not met their 26 burden of showing common issues predominate. The Court sets a further case management 27 conference for April 9, 2026 at 2:00 p.m. via Zoom video. An updated joint case management ] This Order disposes of Docket No. 62. 2 IT IS SO ORDERED. 3 Dated: March 6, 2026 4 ne JAGQUELINE SCOTT CORL 5 United States District Judge 6 7 8 9 10 1] a 12
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