Case Number: BC530954??? Hearing Date: May 31, 2016??? Dept: 310
SUMO v. TORRANCE MEMORIAL MEDICAL CENTER
MOTION FOR CLASS CERTIFICATION
TENTATIVE RULING
Deny motion for class certification
DISCUSSION
I. Background
Plaintiff Evelyn Sumo brought this putative wage-and-hour class action against her employer, Torrance Memorial Medical Center. Plaintiff alleges that Defendant adopted and maintained uniform policies, practices, and procedures governing the working conditions of, and payment of wages to Plaintiff and the rest of the Class. [Complaint, ?15.] These uniform policies, practices, and procedures allegedly violated California?s labor laws, constituted unfair, fraudulent, or illegal business practices under Business & Professions Code ??17200, et seq.
Specifically, Plaintiff alleges claims for violation of Labor Code ?204 (failure to pay wages for hours worked); violation of Labor Code ?510 (failure to pay overtime); violation of Labor Code ??1194 and 1194.2 (minimum wage law); violation of Labor Code ??201 and 203 (unpaid wages at discharge); failure to provide meal and rest periods; violation of Labor Code ?226(a) (inaccurate wage statements); and violation of Business & Professions Code ??17200, et seq. Plaintiff moves for an order certifying the class and two subclasses identified above.
II. Evidentiary Objections
Defendant Torrance Memorial has lodged objections to the Declarations of Evelyn Sumo and J.D. Henderson submitted by Plaintiff in support of her motion for class certification. Rulings follow.
Objections to Sumo Declaration
1. ?5 at 1:16-17: Overruled.
2. ?5 at 1:17-18: Overruled.
Objections to Declaration of J.D. Henderson
3. ?10 at 4:10-13: Sustained. It will be the role of the Court to interpret the AWS agreement in assessing the issues on class certification.
4. ?14 at 4:24-25: Overruled. The objection goes to the weight, and not the admissibility, of Henderson?s statement regarding Torrance?s supplemental response to RFA No. 26.
5. ?15 at 4:26-28: Sustained.
6. ?15 at 4:28-5:1: Sustained.
7. ?14 at 4:24-25: Sustained.
8. ?17 at 5:11-13: Sustained.
III. Motion for Class Certification
1. General standards on motions for class certification
CCP ? 382 allows the Court to certify a class action ?when the question is one of a common interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court…? Additionally, ?[t]here must be questions of law or fact common to the class that are substantially similar and predominate over the questions affecting the individual members; the claims of the representatives must be typical of the claims or defenses of the class; and the class representatives must be able to fairly and adequately protect the interests of the class.? Wershba v. Apple Computer, Inc. (2001) 91 Cal.App. 4th 224, 237-238.
Stated differently, there are two broad requirements for a class action: 1) an ascertainable class; and 2) a well-defined community of interest. Hicks v. Kaufman & Broad Home Corp. (2001) 89 Cal. App. 4th 908, 913. See also Brinker Rest. Corp. v. Sup. Ct. (2012) 53 Cal.4th 1004, 1021 (a plaintiff seeking certification ?must demonstrate the existence of an ascertainable and sufficiently numerous class, a well-defined community of interest, and substantial benefits from certification that render proceeding as a class superior to the alternatives?).
In determining whether the class is ascertainable, courts consider the size of the class, the class definition, and the means to identify class members. Reyes v. San Diego County Board of Supervisors (1987) 89 Cal. App. 3d 1263, 1274. The community of interest factor is established by showing: (1) predominant common questions of law or fact; (2) class representatives with claims or defenses typical of the class; and (3) class representatives who can adequately represent the class. Linder v. Thrifty Oil Co. (2000) 23 Cal. 4th 429, 435.
Further, under California law, a class action is not ?superior? where there are numerous and substantial questions affecting each class member?s right to recover, following determination of liability to the class as a whole. City of San Jose v. Superior Court (Lands Unlimited) (1974) 12 Cal.3d 447, 459.
California follows the procedures set forth under Federal Rules of Civil Procedure 23 for class actions, whenever California authority is lacking. City of San Jose v. Superior Court, supra, 12 Cal. 3d at 453.
The potentially mandatory and discretionary factors applicable to class certification include:
? Whether there is an ascertainable class (mandatory);
? whether there is a well-defined community of interest as to common questions of law or fact that predominate (mandatory);
? whether the class is so numerous that joinder of all members is impractical;
? whether the claims of the representative plaintiff are typical of the class;
? whether substantial benefits accrue to the litigants and courts;
? whether the proposed class is manageable;
? whether the person representing the class is able to fairly and adequately protect the interests of the class; and
? whether a class action is superior (including whether individual plaintiffs would bring claims for small sums).
E.g., Feitelberg v. Credit Suisse First Boston, LLC (2005) 134 Cal.App.4th 997, 1014;
Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435; Prince v. CLS Transp., Inc. (2004) 118 Cal.App.4th 1320, 1324; In re Cipro Cases I and II (2004) 121 Cal.App.4th 402, 409; California Practice Guide, Civil Procedure Before Trial, ??14:11-14:50 (The Rutter Group 2015).
The burden of proof on a motion for class certification is on the party seeking certification. Washington Mutual Bank, N.A. v. Superior Court (Briseno) (2001) 24 Cal. 4th 906, 922; Soderstedt v. CBIZ S. California, LLC (2011) 197 Cal.App.4th 133, 154. This usually requires demonstration of predominance of common issues of law and fact, and manageability of the proposed class. Lockheed Martin Corp. v. Sup.Ct. (Carrillo) (2003) 29 Cal.4th 1096, 1103-1104; California Practice Guide, Civil Procedure Before Trial, ?14:99.2 (The Rutter Group 2015).
In making the determination as to whether the requirements for a class action have been met, the court may consider not only the parties? pleadings but also extrinsic evidence, including declarations and discovery responses. California Practice Guide, Civil Procedure Before Trial, ?14:99 (The Rutter Group 2015). California courts consider ?pattern and practice evidence, statistical evidence, sampling evidence, expert testimony, and other indicators of a defendant?s centralized practices in order to evaluate whether common behavior towards similarly situated plaintiffs makes class certification appropriate.? Sav-On Drug Stores, supra, 34 Cal.4th at 333. The burden is on the party seeking class certification to establish each of the class prerequisites through substantial evidence. Id. at 327. See also Brinker, supra, 53 Cal.4th at 1051. ?The Court must examine together all of the evidence presented by the moving and opposing parties ?under the prism of plaintiff?s theory of recovery.?? California Practice Guide, Civil Procedure Before Trial, ?14:99 (The Rutter Group 2015) (citing Department of Fish & Game v. Sup. Ct. (Adams) (2011) 197 Cal.App.4th 1323, 1349).
Importantly, in weighing the evidence, the Court does not evaluate whether the claims asserted are legally or factually meritorious. Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 439-440. ?However, ?when the merits of the claim are enmeshed with class action requirements, the trial court must consider evidence bearing on the factual elements necessary to determine whether to certify the class.?? California Practice Guide, Civil Procedure Before Trial, ?14:100.1 (The Rutter Group 2015) (citing Bartold v. Glendale Fed?l. Bank (2000) 81 Cal.App.4th 816, 829; Brinker, supra, 53 Cla.4th at 1023-1024; J.P. Morgan & Co., Inc. v. Sup. Ct. (Heliotrope Gen., Inc.) (2003) 113 Cal.App.4th 195, 222).
Plaintiff moves for certification of the following class and subclasses:
A. The Class: All current and former non-exempt employees of Torrance Memorial Medical Center who worked an Alternative Workweek Schedule at any time during the Class Period.
B. Meal Period Sub-Class: All current and former non-exempt employees of Torrance Memorial Medical Center who worked an Alternative Workweek Schedule at any time during the Class Period, and who worked more than 10 hours without taking a second meal period.
C. Waiting Time Sub-Class: All former non-exempt employees of Torrance Memorial Medical Center who worked an Alternative Workweek Schedule at any time during the Class Period.
By and through the defined class and subclasses, Plaintiff challenges the lawfulness of Defendant Torrance Memorial?s Alternative Workweek Schedule (?AWS?) policy. According to Plaintiff, the motion for class certification is based ?entirely? on the allegedly unlawful AWS policy and the meal period waivers.
Before turning to the elements for class certification, however, Defendant Torrance Memorial has raised several arguments which do not directly implicate the class certification elements. First, Defendant argues that the alleged class claims have not been asserted in this litigation. Specifically, Defendant asserts that the FAC says nothing about any AWS schedule or election, or any meal period waivers, and the classes sought to be certified are completely different than those alleged in the FAC. To be sure, the Complaint here does not include any allegations regarding the AWS policy, or that Plaintiff is challenging said policy. In the motion, Plaintiff admits as much, stating that ?[w]hen Plaintiff filed this lawsuit the exact nature of Torrance?s Labor Code violations was not known, but investigation by Plaintiff?s counsel uncovered the unlawful AWS policy with the unlawful meal period waivers.? [Motion at 1:24-2:1.]
?Before a hearing may be held on the propriety of a class action, the complaint must contain sufficient allegations of class interest[.]? Pinnacle Holdings, Inc. v. Simon (1995) 31 Cal.App.4th 1430, 1435. Here again, however, the complaint contains no allegations with respect to the AWS policy being challenged. Absent such allegations of class interest, the Defendant?s argument is well-taken, and is grounds for denying the motion at this time. However, if the Court were to deny the motion for class certification on this ground, the interests of justice would require permitting Plaintiff leave to file a motion to amend the complaint to allege the theory of recovery based on the allegedly unlawful AWS agreement. For this reason, and to minimize litigation cost and to determine the substantive merits of the motion, the Court will continue its analysis assuming plaintiff has overcome this limitation
Defendant?s second argument in opposition to the motion is that the claims asserted are time-barred. It appears to be undisputed that Plaintiff agrees the AWS election in her unit occurred in 2004 ? 12 years ago (and for others, it took place 16 years ago). [Ambriz Dec., ?2.] The claims for unpaid overtime wages and meal premiums, as Defendant notes, are subject to a three-year statute of limitations under CCP ?338(a), and thus, Defendant argues the claims are all time-barred. However, as noted supra, the Court, in weighing the evidence on class certification, does not evaluate whether the claims asserted are legally or factually meritorious, given the fact that courts view the question of certification ?as essentially a procedural one[.]? Linder v. Thrifty Oil Co., supra, 23 Cal.4th at 439-440. Thus, it would not be appropriate to consider the statute of limitations argument raised by Defendant on the instant motion for class certification. Defendant would be free to move for summary judgment at an appropriate time based on the expiration of the statute of limitations.
Ascertainability/Numerosity
?Ascertainability requires a class definition that is ?precise, objective and presently ascertainable.? Otherwise, it is not possible to give adequate notice to class members or to determine after the litigation has concluded who is barred from relitigating.? California Practice Guide, Civil Procedure Before Trial, ?14:23 (The Rutter Group 2015) (citing Global Minerals & Metals Corp. v. Sup.Ct. (National Metals, Inc.) (2003) 113 Cal.App.4th 836, 858 (emphasis added)). The class should be defined in terms of objective characteristics and common transactional facts that will enable identification of the class members when such identification becomes necessary. Hicks v. Kaufman & Broad Home Corp., supra, 89 Cal.App.4th at 915.
The goal is to use terminology that will convey sufficient meaning ?to enable persons hearing it to determine whether they are members of the class plaintiffs wish to represent.? Global Minerals & Metals Corp. v. Sup.Ct. (National Metals, Inc.), supra, 113 Cal.App.4th at 858. Importantly, a class may be ascertainable even if the definition includes ultimate facts or conclusions of law. Hicks, supra, 89 Cal.App.4th at 915-916. ?Class members are ?ascertainable? where they may be readily identified without unreasonable expense or time by reference to official records.? Thompson v. Automobile Club of Southern California (2013) 217 Cal.App.4th 719, 728 (internal citations omitted); see also Bridgeford v. PacificHealth Corp. (2012) 202 Cal.App.4th 1034, 1041.
Further, no set number is required as a matter of law for the maintenance of a class action. Hebbard v. Colgrove (1972) 28 Cal.App.3d 1017, 1030. California case law indicates that as few as ten (10) or twenty-eight (28) members satisfies numerosity. Bowles v. Superior Court (1955) 44 Cal.2d 574; Hebbard, 28 Cal.App.3d at 1030.
Defendant Torrance Memorial does not contest numerosity. A letter dated August 4, 2004 from Debra Ambriz, Defendant?s Manager for Compensation and Benefits, notified the Division of Labor Statistics and research on August 4, 2004 that there were 112 employees in the unit. [See Exh. 2 to Henderson Decl.] Plaintiff states that ?[u]pon information and belief,? the PCU Unit had over 100 hourly employees when she worked there. [Sumo Decl., ?6.] While the admissibility of the August 4, 2004 letter and Plaintiff?s statement are questionable, it would appear that numerosity is satisfied.
As to ascertainability, the class and subclass definitions are defined in terms of objective characteristics that would allow relatively easy identification of the class members. Persons hearing any of the three proffered definitions would be able to determine whether or not they would be members of the class. Defendant Torrance Memorial would likely be able to resort to its own employment records to determine membership in the class. For these reasons, numerosity and ascertainability are both satisfied.
Do common questions predominate?
a. General standards on the ?commonality? element
In deciding whether the common questions ?predominate,? the courts must identify the common and individual issues; consider the manageability of those issues; and, taking into account the available management tools, weigh the common issues against the individual issues to determine which of them predominate. California Practice Guide, Civil Procedure Before Trial, ?14:16 (The Rutter Group 2015) (referencing Dunbar v. Albertson?s, Inc. (2006) 141 Cal.App.4th 1422, 1432-1433).
Additionally, a class action is not inappropriate simply because each member of the class may at some point be required to make an individual showing as to his or her eligibility for recovery or as to the amount of his or her damages. Vasquez v. Superior Court (1971) 4 Cal.3d 800, 815-816. However, a class action ?will not be permitted…where there are diverse factual issues to be resolved, even though there may be many common questions of law.? Brown v. Regents of Univ. of Calif. (1984) 151 Cal. App. 3d 982, 988-89. ?[E]ach member must not be required to individually litigate numerous and substantial questions to determine his right to recover following the class judgment.? City of San Jose, supra, at 460.
In Arenas v. El Torito, Inc. (2010) 183 Cal.App.4th 723, the Court of Appeal observed:
The focus in a class certification dispute is not entirely on the merits but on the procedural issue of what types of questions are likely to arise in the litigation?common or individual. (Sav-On Drug Stores, Inc. v. Superior Court, supra, 34 Cal.4th at pp. 326?327; Lockheed Martin Corp. v. Superior Court, supra, 29 Cal.4th at pp. 1106?1107; Linder v. Thrifty Oil Co., supra, 23 Cal.4th at pp. 439?440.) Thus, the existence of some common issues of law and fact does not dispose of the class certification issue. (Lockheed Martin Corp. v. Superior Court, supra, 29 Cal.4th at pp. 1108?1109; Washington Mutual Bank v. Superior Court, supra, 24 Cal.4th at pp. 913?914; Kennedy v. Baxter Healthcare Corp. (1996) 43 Cal.App.4th 799, 809 [50 Cal.Rptr.2d 736].) Rather, in order to justify class certification, the Supreme Court held, ?[T]he proponent of certification must show ? that questions of law or fact common to the class predominate over the questions affecting the individual members ? .? Arenas v. El Torito, Inc., 183 Cal.App.4th at 732 (emphasis added).
The court in Jaimez v. Daiohs USA, Inc. (2009) 181 Cal.App.4th 1286, 1298 recognized that that ??the trial court must evaluate whether the theory of recovery advanced by the plaintiff is likely to prove amenable to class treatment ? .?? (citing Ghazaryan v. Diva Limousine, Ltd. (2008) 169 Cal.App.4th 1524, 1531) (emphasis added).
?Predominance is a comparative concept, and ?the necessity for class members to individually establish eligibility does not mean individual fact questions predominate.? [Citation.]? Medrazo v. Honda of North Hollywood, supra, 166 Cal.App.4th at 99-100. Common issues are predominant when such issues would be primary to each individual action. Caro v. Procter & Gamble Co. (1993) 18 Cal.App.4th 644,447-48.
Critically, the Brinker court, in addressing the commonality element, stated in pertinent part:
[W]hether common or individual questions predominate will often depend upon resolution of issues closely tied to the merits. (Coopers & Lybrand v. Livesay, supra, 437 U.S. at p. 469, fn. 12; Linder v. Thrifty Oil Co., supra, 23 Cal.4th at p. 443.) To assess predominance, a court ?must examine the issues framed by the pleadings and the law applicable to the causes of action alleged.? (Hicks v. Kaufman & Broad Home Corp., supra, 89 Cal.App.4th at p. 916.) It must determine whether the elements necessary to establish liability are susceptible of common proof or, if not, whether there are ways to manage effectively proof of any elements that may require individualized evidence. (See Sav-On Drug Stores, Inc. v. Superior Court, supra, 34 Cal.4th at p. 334.) In turn, whether an element may be established collectively or only individually, plaintiff by plaintiff, can turn on the precise nature of the element and require resolution of disputed legal or factual issues affecting the merits. For example, whether reliance or a breach of duty can be demonstrated collectively or poses insuperable problems of individualized proof may be determinable only after closer inspection of the nature of the reliance required or duty owed and, in some instances, resolution of legal or factual disputes going directly to the merits. Brinker, supra, 53 Cal.4th at 1024.In sum, ?[p]resented with a class certification motion, a trial court must examine the plaintiff’s theory of recovery, assess the nature of the legal and factual disputes likely to be presented, and decide whether individual or common issues predominate. To the extent the propriety of certification depends upon disputed threshold legal or factual questions, a court may, and indeed must, resolve them. Out of respect for the problems arising from one-way intervention, however, a court generally should eschew resolution of such issues unless necessary. [Citation.]? Brinker, 53 Cal.4th at 1025.
Here again, Plaintiff seeks certification of a class and two subclasses, challenging the AWS agreement and the AWS policy. In assessing commonality, it is useful to examine the law governing alternative workweek scheduling.
As a general proposition, employees are entitled to premium pay when they work more than eight hours in a single day. See Labor Code ?510. However, California Labor Code ?511 governs alternative workweek schedules, and provides an exception to the general rule. Section 511(a) provides in applicable part as follows:
(a) Upon the proposal of an employer, the employees of an employer may adopt a regularly scheduled alternative workweek that authorizes work by the affected employees for no longer than 10 hours per day within a 40-hour workweek without the payment to the affected employees of an overtime rate of compensation pursuant to this section. A proposal to adopt an alternative workweek schedule shall be deemed adopted only if it receives approval in a secret ballot election by at least two-thirds of affected employees in a readily identifiable work unit. The regularly scheduled alternative workweek proposed by an employer for adoption by employees may be a single work schedule that would become the standard schedule for workers in the work unit, or a menu of work schedule options, from which each employee in the unit would be entitled to choose.
Subsection (b) provides:
(b) An affected employee working longer than eight hours but not more than 12 hours in a day pursuant to an alternative workweek schedule adopted pursuant to this section shall be paid an overtime rate of compensation of no less than one and one-half times the regular rate of pay of the employee for any work in excess of the regularly scheduled hours established by the alternative workweek agreement and for any work in excess of 40 hours per week. An overtime rate of compensation of no less than double the regular rate of pay of the employee shall be paid for any work in excess of 12 hours per day and for any work in excess of eight hours on those days worked beyond the regularly scheduled workdays established by the alternative workweek agreement.
Consistent with Industrial Welfare Commission Wage Order 5-2001, employees in the health care industry can elect an AWS of up to 12 hours. See Labor Code ?517(b) and Wage Order 5, ?5(B)(8) (8 CCR ?. Wage Order 5-2001, ?11(D) provides:
Notwithstanding any other provision of this order, employees in the health care industry who work shifts in excess of eight (8) total hours in a workday may 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 signed by both the employee and the employer. The employee may revoke the waiver at any time by providing the employer at least one day?s written notice. The employee shall be fully compensated for all working time, including any on-the-job meal period, while such a waiver is in effect. (Emphasis added.)
8 CCR ?11050(3)(C)(8) provides in applicable part that ?[e]mployers shall not intimidate or coerce employees to vote either in support of or in opposition to a proposed alternative workweek.?
Turning to the evidence, and as Defendant notes, there are 39 AWS?s in place at Defendant Torrance, each of which was implemented pursuant to an AWS election. [Ambriz Decl., ?2.] Ms. Ambriz testified that prior to any AWS election, Defendant provides employees with a form written agreement and a disclosure packet. [Ambriz Depo. at 211:8-212:10.] Plaintiff Sumo?s AWS agreement [Exhibit 5 to Henderson Declaration] provided for a ?12 Hour Alternative Workweek Agreement.? It gives full-time employees the option to check a box agreeing to three twelve-hour shifts per week. By checking the box, the agreement states that the employee ?voluntarily agree[s] to work the above regular alternative workweek schedule at [the employee?s] regular hourly rate of pay.? [Henderson Decl., Exh. 5 at TMMC 000569.] Subsection ?3? states:
I understand that the Medical Center may terminate the alternative workweek schedule upon two weeks notice. I understand that twelve months after the AWWS election and upon a petition of one-third of the affected employees, a new secret ballot election shall be held and a two-thirds vote of the affected employees would be required to reverse the alternative workweek schedule. The change would take place within sixty days of the vote.
Subsection 4 of the agreement sets forth the meal period waiver, and states:
I understand that when I am working a 12-hour shift schedule, I would be entitled to receive two unpaid meal periods of 30 minutes each. However, I voluntarily agree to waive one of my two meal periods.
I understand that I may revoke this meal period waiver at any time by providing my supervisor with at least one day?s written notice. [Henderson Decl., Exh. 5 at TMMC 000570.]
Plaintiff signed this agreement, and testified in deposition that she checked the box indicating her full time status. [Sumo Depo. II, Exh. C to Barker Decl. at 251:3-18.] She worked full-time during her employment with Defendant (three 12-hour shifts per week). [Sumo Depo. I and II, Exhs. B and C to Barker Decl. at 63:18-64:11, 226:3-9, 227:21-24.] Plaintiff signed and dated the 12-hour Alternative Workweek Agreement and meal period waiver on December 15, 2010. [Sumo Depo I, Exh. B to Barker Decl. at 71:11-25.] She testified that she was aware she could revoke the meal period waiver, but that she decided not to do so, and that she never complained to anyone at Torrance Memorial about waiving one of her two meal periods. [Sumo Depo. I and II, Exhs. B and C to Barker Decl. at 79:17-80:13, 239:16-18, 236:6-21, 276:1-4.] Plaintiff also testified that she did not ever try to revoke the meal period waiver. [Sumo Depo. II, Exh. C at 239:16-18.] Plaintiff testified in deposition that she was never told an AWS was going to be revoked or terminated by Defendant. [Sumo Depo II, Exh. C to Barker Decl. at 245:13-246:3.] Plaintiff ceased working for Defendant in 2013.
Plaintiff?s overarching theory to establish liability is that: 1) the AWS was involuntary, and was coerced, in violation of Wage Order 5, ?3(C)(8); 2) that Defendant failed to inform employees of the effects of an AWS on their wages and hours, thereby nullifying all AWS agreements; 3) that Defendant told employees it could unilaterally end any AWS whenever it wanted without any repeal election; and 4) Torrance?s written proposals included schedules not all employees were entitled to work (thereby nullifying the AWS). According to Plaintiff, each of the claims she seeks to certify ?are based on the same common, uniform policy which was uniformly implemented.? [Motion at 11:27-28.] However, while Plaintiff argues that the policy, as applied, was uniform to all members of the putative class, it is apparent based on the evidence before the Court that that this is not the case.
Clearly, many of the employees submitting Declarations believe the AWS policy was not unlawful, and that they were otherwise satisfied with the AWS policy for myriad reasons. [ Farrah ? 4 (prefers having more days off per week); Ruiz ? 4 (the AWS allows him to have another job); Brown 9 4, 13 (the A WS allows her to go to school simultaneously); Temblique ? 4 (enjoys having more days off per week); Huang ? 4 (the AWS schedule allows her to spend more time with her family); Gonzalez ? 4, 12 (prefers having more days off per week so that she can spend time with her family); Mendoza ? 4, 12 (prefers flexibility of AWS schedule); Anaya ?4, 12 (prefers the flexibility of an AWS schedule); Milliken ? 4, 12 (prefers flexibility of AWS schedule); Tran ? 4, 11 (prefers the A WS schedule so that she can spend more time with her children); Garcia ? 4, 12 (prefers the AWS so that she can spend more time with her children); Alcaraz ? 4, 11 (prefers working less days per week); Sanchez-Mendel ? 4, 13 (prefers working less days per week); Jia ? 4, 12 (enjoys the AWS because she can spend more time with her children); Barker ? 4, 11 (believes that an A WS is advantageous due to the flexibility); Holmes ? 4, 12 (enjoys having more days off per week); Wong ? 4, 12 (prefers working less days per week); Cruz ? 4, 15 (prefers working less days per week and believes the AWS improves patient care); Antonio ? 4, 14 (prefers working less days per week); Hume-Dawson ? 4, 13 (prefers to work less days per week); Bass ? 4, 11 (enjoys more days off per week); Kim ? 4, 12 (enjoys the flexibility of the AWS); Rodriguez ? 4 (prefers to work less days per week); Weischedel ? 4, 13 (was able to complete her BSN degree due to AWS).
Several employees who participated in AWS elections at Defendant?s locale state under oath that no one pressured, intimidated, or coerced them to vote in any particular way on the AWS. Brown ?4; Sanchez-Mendel ?4; Cruz ?4; Antonio ? 4; Hume-Dawson ? 4; Kim ?4; Rodriguez ?7 4; Weischedel ?4.]
With regard to the meal period waiver, a number of Defendant?s employees state they did not perceive the meal period waiver as involuntary, and did not believe it was required in order to work an alternative workweek schedule. [See, e.g., Declarations of Employees Farrah ? 6-8; Ruiz ? 6-8; Brown ? 5, 7, 9; Temblique ? 6- 8; Huang ? 6-8; Gonzalez ? 6-8; Janelli ? 6-8; Mendoza ? 6-8; Milliken ? 6-8; Tran ? 6-7; Garcia ? 6-8; Hoang ? 6- 8; Alcaraz ? 6-7; Flores ? 6, 9; Sanchez-Mendel ? 5, 7, 9; Jia ? 6-8; Barker ? 6-7; Holmes ? 6, 8; Wong ? 6, 8; Cruz ? 5, 8; Antonio ? 5, 8, 10; Hume-Dawson ? 5, 7-9; Bass ? 6-8; Kim ? 5, 8-9; Rodriguez ? 3, 5, 7; and Weischedel ? 3, 5, 8, and 9.] Moreover, these same employees state in their Declarations that they wanted to sign the waiver and waive one of their two meal periods. [See Declarations of Employees Farrah ? 6-7; Ruiz ? 6-7; Brown ? 7; Temblique ? 6; Huang ? 6; Gonzalez ? 6-7; Janelli ? 6-7; Mendoza ? 6-7; Anaya ? 6-7; Milliken ? 6-7; Tran ? 6, 7; Garcia ? 6-7; Hoang ? 6-7; Alcaraz ? 6-7; Flores ? 6; Sanchez-Mendel ? 7; Jia ? 6; Barker ? 6; Holmes ? 6; Wong ? 6; Cruz ? 8; Antonio ? 8; Hume-Dawson ? 7; Bass ? 6-7; Rodriguez ? 7; and Weischedel ?8.]
These employees further state that they knew they could revoke the meal period waiver, but chose not to revoke it because they wanted to continue waiving one of their two meal periods. [Declarations of Employees Farrah ? 8; Ruiz ? 6, 8; Brown ? 5, 7, 9; Temblique ? 8; Huang ? 6, 8; Gonzalez ? 6, 8; Janelli ? 6, 8; Mendoza ? 5, 6, 8; Anaya ? 6, 8; Milliken ? 6, 8; Tran ? 6, 7; Garcia ? 6, 8; Hoang ? 6, 8; Alcaraz ? 6-7; Flores ? 6, 9; Sanchez-Mendel ? 5, 7, 9; Jia ? 6, 8; Barker ? 5-7; Holmes ? 5, 6, 8; Wong ? 6, 8; Cruz ? 5, 8, 11; Antonio ? 10; Hume-Dawson ? 5, 7, 9; Bass ? 8; Kim ? 8-9; Rodriguez ??7-8: Weischedel ?9.] These employees state that they prefer to work a 12 hour schedule. [Employee Declarations Farrah ? 4; Ruiz ? 4; Brown ? 4, 13; Temblique ? 4; Huang ? 4; Gonzalez ? 4, 12; Janelli ? 4,12; Mendoza ? 4, 12; Anaya ? 4, 12; Milliken ? 4, 12; Tran ? 4, 11; Garcia ? 4, 12; Hoang ? 4, 12; Alcaraz ? 4, 11; Flores ? 4, 13; Sanchez-Mendel ? 4, 13; Jia ? 4, 12; Barker ? 4, 11; Holmes ? 4, 12; Wong ? 4, 12; Cruz ? 4, 15; Antonio ? 4, 14; Hume-Dawson ? 4, 13; Bass ? 4, 11; Kim ? 4, 12; Rodriguez ?4: Weischedel ?4, 13.] The employees state they prefer to waive one of their two meal periods, so they do not have to remain at work for 13 hours. [Farrah ? 6; Ruiz ? 6; Brown ? 7; Temblique ? 6; Huang ? 6; Gonzalez ? 6; Janelli ? 6; Mendoza ? 6; Anaya ? 6; Milliken ? 6; Tran ? 6; Garcia ? 6; Hoang ? 6; Alcaraz ? 6; Flores ? 6; Sanchez-Mendel ? 7; ? 6; Barker ? 6; Holmes ? 6; Cruz ? 8; Antonio ? 8; Hume-Dawson ? 7; Bass ?6; Kim; ? 8 Rodriguez ?7: Weischedel ?8.]
While the Court may not consider at class certification the merits of the statements made within the employee Declarations, these Declarations do illustrate an important point ? that the Court will have to conduct highly individualized assessments in order to establish whether Defendant?s AWS policy or practice was unlawful. In particular, whether the waiver within the AWS was voluntary must be examined for each class member, given the statements from several putative class members that the waivers were voluntary (and given the fact, as discussed supra, that the AWS agreements themselves state as much). The Court cannot assume liability in a vacuum in assessing whether the Plaintiff?s theory is amenable to class treatment.
The legality of the meal period policy waiver within the AWS also cannot be handled on a class basis, given the statements from several putative class member employees that they knew the waiver could be revoked (but that they chose not to). The fact that a number of those employees to whom meal period forms were reissued have again affirmatively responded demonstrates the individuality of this issue.
The ?coercion? theory under 8 CCR ?11050(3)(C)(8) is also problematic for that very reason. Again, the declarations referenced above indicate that significant numbers of employees never felt being coerced into waiving any of their meal periods. Thus, the Court would have to determine, on an individual basis, whether a class member believed his or her waiver was coerced and the reasons why the employee felt coercion existed. This would again create highly individualized issues, given the fact the policy Plaintiff challenges involves 39 AWS elections over the past 16 years (i.e., since 2000)). [Ambriz Decl., ?2.] The fact 23 of the votes at Torrance Memorial resulted in employees not adopting an AWS [Ambriz Decl., ?2] highlights how coercion would have to be determined for each election, and as to each individual putative class member.
Dedra Ambriz, Defendant?s Director of Human Resources, says that Defendant recently re-issued meal period waiver forms to its employees who are working AWS?s. Ambriz states that thus far, each employee who has responded to the re-issued meal period waiver has reaffirmed their decision to waive one of their two meal periods. [Ambriz Decl., ?3.] Again, this shows the individual nature of the alleged coercive and unlawful AWS policies being challenged.
In sum, substantial evidence does not support Plaintiff?s assertion that the legality of Defendant?s AWS policy and practice, including the meal period waiver issue, can be handled on a class-wide basis. The evidence before the Court does not demonstrate the existence of a company-wide policy which violates the Labor Code and Wage Order 5-2001 is appropriate for class treatment.
Typicality
The purported class representative?s claim must be ?typical? but not necessarily identical to the claims of other class members. It is sufficient that the representative is similarly situated so that he or she will have the motive to litigate on behalf of all class members. Classen v. Weller (1983) 145 Cal.App.3d 27, 45. Thus, it is not necessary that the class representative have personally incurred all of the damages suffered by each of the other class members. Wershba v. Apple Computer, Inc., supra, 91 Cal.App.4th at 228.
?Typicality refers to the nature of the claim or defense of the class representative, and not to the specific facts from which it arose or the relief sought. The test of typicality is whether other members have the same or similar injury, whether the action is based on conduct which is not unique to the named plaintiffs, and whether other class members have been injured by the same course of conduct.? Seastrom v. Neways, Inc. (2007) 149 Cal.App.4th 1496, 1502.
Here, it is not at all clear that Plaintiff Sumo?s claim is typical of that of the putative class. The only Declaration submitted in support of the motion is that of Plaintiff Sumo. There are no Declarations, nor is there any other evidence submitted, as to any individual class member?s AWS agreement or meal period waiver. To the contrary, much of Defendant?s evidence in the form of employee declarations provides that these employees have no desire to challenge the AWS policy at issue. At the very least, this raises significant doubts as to whether Plaintiff Sumo?s claim is typical of that of the putative class.
Further, while Plaintiff should not be held to an exacting standards on the knowledge of the case (with respect to establishing typicality), Plaintiff testified at deposition that she never participated in a vote to establish an alternative workweek schedule, does not know when that vote occurred to implement the alternative workweek schedule, and had no discussions with anyone in her unit about when that vote occurred. [Sumo II Depo., Exh. C to Barker Decl. at 218:8-22.] Plaintiff further testified that she has no knowledge about any AWS elections, and has never spoken to anyone about them. [Sumo II Depo., Exh. C to Barker Decl. at 244:14-245:16.]
On balance, the evidence before the Court demonstrates that Plaintiff is not a typical class representative.
Adequacy of Representation
?The primary criterion in determining adequacy of representation is whether the representative, through qualified counsel, vigorously and tenaciously protected the interests of the class.? Simons v. Horowitz (1984) 151 Cal. App. 3d 834, 846. Additionally, the class representative must ?raise claims reasonably expected to be raised by the members of the class.? City of San Jose, supra, 12 Cal. 3d at 464. The fiduciary duty must be undertaken free of demonstrable conflicts of interest with other class members. Amchem Prods. Inc. v. Windsor, 521 U.S. 591, 625-26 (1997). The ?adequacy of representation? requirement has not been precisely differentiated from the typicality requirement. Caro v. Procter & Gamble, supra, 18 Cal. App. 4th at 670. Other cases have stated that ?adequacy of representation? depends on whether plaintiff?s attorney is qualified to conduct the proposed litigation and plaintiff?s interests are not antagonistic to the interests of the class. McGhee v. Bank of America (1976) 60 Cal. App. 3d 442, 450.
The Court finds that class counsel is ?adequate? here. Mr. Fialkow has represented Plaintiffs and class members in wage and hour class actions against a wide range of Defendants, and currently has 40 wage and hour class actions in various stages of litigation. [Fialkow Decl., ?2.] Mr. Majarian similarly states that he has been appointed co-class counsel for the plaintiffs in no less than 75 wage and hour actions. [Majarian Decl., ?2.] Mr. Cahill also has significant experience in prosecuting class and representative cases involving state and federal securities fraud, ERISA, state and federal anti-trust violations, consumer fraud and California wage and hour violations. [Cahill Decl., ?3.] Finally, Mr. Henderson states that he has been class counsel in numerous multi-million dollar wage and hour class action lawsuits involving tens of thousands of employees. [Henderson Decl., ?3.] Plainly, all class counsel in this case are eminently qualified, and each satisfies the ?adequacy? element.
With respect to Plaintiff Sumo herself, though, given the view that she does not satisfy the typicality prong, she also is not an adequate class representative. Plaintiff?s challenge to the AWS policy and practice, including the meal period waiver, is directly at odds with the position of a large cross-section of Defendant?s employees. Given this conflict, it would appear that Plaintiff is not an adequate class representative.
Superiority
In deciding whether a class action would be ?superior? to individual lawsuits, the Court will usually consider:
1) The interest of each member in controlling his or her own case personally;
2) The difficulties, if any, that are likely to be encountered in managing a class action;
3) The nature and extent of any litigation by individual class members already in progress involving the same controversy; and
4) the desirability of consolidating all claims in a single action before a single court.
California Practice Guide, Civil Procedure Before Trial, ?14:16 (The Rutter Group 2015) (citing FRCivPro 23(b)(3)); see also Basurco v. 21st Century Ins. Co., supra, 108 Cal.App.4th at 120; Newell v. State Farm Gen. Ins. Co., supra, 118 Cal.App.4th at 1101; Lee v. Dynamex, Inc. (2008) 166 Cal.App.4th 1325, 1333; Johnson v. GlaxoSmith-Kline, Inc. (2008) 166 Cal.app.4th 1497, 1510; Ghazaryan v. Diva Limousine, Ltd. (2008) 169 Cal.App.4th 1524, 1537.
Further, under California law, a class action is not ?superior? where there are numerous and substantial questions affecting each class member?s right to recover, following determination of liability to the class as a whole. City of San Jose v. Superior Ct., supra, 12 Cal.3d 447, 459.
Here, given the view that common issues do not predominate as to the AWS agreements and the meal period waivers, it would not be desirable to consolidate all such claims before a single court. There would certainly be difficulties that would be encountered in managing this case, given the individualized issues surrounding the legality of the AWS agreements and the meal period waivers. There is apparently no other litigation by individual class members involving the same AWS policy and meal period waivers at this time. There probably is not a high interest in individual plaintiffs litigating these claims personally, since each class member would probably only stand to recover a relatively small amount (if the class ultimately proves the merits of the off-the-clock claim). Such amounts would be greatly outweighed by the expense and effort of having to individually litigate these claims.
On balance, the class mechanism is not the superior means to litigate the claims challenging the AWS policy.
Trial Plan
In Duran v. U.S. Bank National Association (2014) 59 Cal.4th 1, the California Supreme Court noted as follows:
If statistical evidence will comprise part of the proof on class action claims, the court should consider at the certification stage whether a trial plan has been developed to address its use. A trial plan describing the statistical proof a party anticipates will weigh in favor of granting class certification if it shows how individual issues can be managed at trial. Rather than accepting assurances that a statistical plan will eventually be developed, trial courts would be well advised to obtain such a plan before deciding to certify a class action.
Duran v. U.S. Bank Nat. Assn., 59 Cal. 4th at 31-32 (emphasis in original).
Plaintiffs? counsel attached a proposed trial plan as Exhibit 8 to the Henderson Declaration. The trial plan claims that there are ?no relevant disputed issues of fact,? and that determining liability will be determined by common facts which are undisputed. As to damages, Plaintiff submits that no statistical sampling or surveys are needed in this case. [Exh. 8 to Henderson Decl., Plaintiff?s Trial Management Plan at 3:20.]
The proposed trial plan, though, does not address how liability would be adjudicated. Nor has Plaintiff discussed in the trial plan how any defects in the AWS elections could be handled in a single tribunal. Absent an adequate proposal for a trial plan, this stands as yet another reason for denial of the motion for class certification.