1)Plaintiff Anthony Ibrahim’s Motion for Class Certification
2)Status Conference
Plaintiff?s motion for class certification is GRANTED in part and DENIED in part.
The Court GRANTS certification of a class all ?persons employed in California by Defendants Climatec, Inc., and KX2 Holdings Building Technologies Group, LP (?Defendants?) as System Specialists between March 9, 2008, and the present? (?the Class?) with respect to the second cause of action for violation of B&P ? 17200; (2)?appoints Kastner Kim, LLP as class counsel; (3) appoints Anthony Ibrahim as class representative; and (4) appoints Rust Consulting Inc. as the class notice administrator. The motion is DENIED to the extent that Plaintiff seeks certification of a meal period class for the first cause of action for overtime wages.
The basic principles of California class certification motions are as follows:
The party advocating class treatment 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 turn, the community of interest requirement embodies three factors: [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.
(Brinker Restaurant Corporation v. Superior Court (2012) 53 Cal.4th 1004, 1021 [internal quotes and citations omitted; bracketing added].) These elements are typically referred to as: (1)?ascertainability; (2)?numerosity; (3)?commonality; (4)?typicality; (5)?adequacy; and (6) superiority.
Ascertainability
?Ascertainability is required in order to give notice to putative class members as to whom the judgment in the action will be res judicata. Class members are ascertainable where they may be readily identified without unreasonable expense or time by reference to official records. In determining whether a class is ascertainable, the trial court examines the class definition, the size of the class and the means of identifying class members.? (Lee v. Dynamex, Inc. (2008) 166 Cal.App.4th 1325, 1334 [internal quotes and citations omitted].)
The proposed Class definition is persons employed in California by Defendants between March 9, 2008 and the present. This is a clear, objective definition. Defendants do not argue otherwise.
Numerosity
?No set number is required as a matter of law for the maintenance of a class action.? (Rose v. City of Hayward (1981) 126 Cal.App.3d 926, 934 [courts have upheld classes with as few as 10 absent class members].)
This element is satisfied. There are 44 System Specialists. (Qualls Decl. Exh K.)
Commonality
The element of commonality asks whether the issues which may be jointly tried, when compared with those requiring separate adjudication, are so numerous or substantial that the maintenance of a class action would be advantageous to the judicial process and to the litigants. (Brinker Restaurants Corporation v. Superior Court, supra, 53 Cal.4th at 1021.) The answer hinges on whether the theory of recovery advanced by the proponents of certification is, as an analytical matter, likely to prove amenable to class treatment. (Ibid.)? Therefore, the 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. (Id. at 1025.) To the extent the propriety of certification depends upon disputed threshold legal or factual questions, the court must resolve them. (Ibid.)? However, the court generally should eschew resolution of such issues unless actually necessary. (Ibid.)
Here, Plaintiff contends the predominant legal issue is whether Defendants should have paid an extra hour of wages to Systems Specialists due to the absence of an off-duty meal period. He bases his claims on a failure by Defendants to provide meal periods and to pay an extra hour of compensation for the lack of a meal period. To support this theory, he points to evidence of the absence of a meal period afforded when employees work shifts of 6 hours or more, shown by time records, the absence of meal period waivers signed by class members, and Defendants? failure to pay a premium for the lack of a meal period.
Defendants do not dispute that no additional payments were made to employees who were not provided an off-duty meal period, but argue common issues do not predominate because (1) Defendants have a clear, lawful policy of providing meal periods to its employees; (2)?they took no affirmative steps to interfere with employees? ability to take these meal periods; and (3)?Plaintiff?s contention that employers have an affirmative obligation to ensure that workers are actually relieved of all duty has already been rejected by the California Supreme Court in Brinker v. Superior Court.
The First Amended Cross Complaint (FACC) asserts two causes of action: (1) failure to pay overtime wages pursuant to LC ? 510 and 1194; and (2)?Violation of B&P ? 17200. With respect to the first cause of action, Plaintiff does not provide any meaningful discussion on how Defendants? failure to provide meal periods or pay the premium wage results in a violation of LC ? 510 or 1194. Thus, the motion is denied with respect to the first cause of action.
As for the second cause of action, Plaintiff discusses Safeway, Inc. v. Superior Court of Los Angeles County (2015) 238 Cal.App.4th 1138, 1156, a class certification case regarding a UCL claim based on missed meal periods. Accordingly, the remaining analysis concerns whether class certification is appropriate with respect to Plaintiff?s UCL claim premised on missed meal breaks.
?An employer?s duty with respect to meal breaks . . . is an obligation to provide a meal period to its employees.? The employer satisfies this obligation if it relieves its employees of all duty, relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted 30?minute break, and does not impede or discourage them from doing so.? (Brinker Restaurant Corp., supra, 53 Cal.4th at 1040.) ?When the employer [satisfies this obligation], its knowledge that an employee is working through a meal break establishes no violation of the duty to pay premium wages, though the employer must still compensate the employee for the time worked. In contrast, if the employer knows that meal breaks are missed, shortened, or unduly delayed because the employer has instructed the employee to work, or has otherwise impeded the taking of breaks, that duty is contravened, absent a suitable waiver or agreement by the employee.? (Safeway, Inc. v. Superior Court of Los Angeles County, supra, 238 Cal.App.4th at 1155 [internal citations omitted].) ?[U]nder those circumstances, the employee is ?immediately? entitled to the premium wage, without any demand or claim to the employer.? (Ibid.)
?[A] UCL claim may be predicated on a practice of not paying premium wages for missed, shortened, or delayed meal breaks attributable to the employer?s instructions or undue pressure, and unaccompanied by a suitable employee waiver or agreement.? (Id. at 1155-1156.) ?[W]hen the applicable IWC wage order obliges the employer to record meal breaks, ?[i]f [those] records show no meal period for a given shift over five hours, a rebuttable presumption arises that the employee was not relieved of duty and no meal period was provided…. An employer?s assertion that it did relieve the employee of duty, but the employee waived the opportunity to have a work-free break, is not an element that a plaintiff must disprove as part of the plaintiff?s case-in-chief. Rather, … the assertion is an affirmative defense, and thus the burden is on the employer, as the party asserting waiver, to plead and prove it.?? (Id. at 1159-60.)
Here, Plaintiff?s theory is premised on the universal practice of Defendants failing to record meal periods, not on the policy in the handbook on meal periods. Defendants? first argument that there is a facially valid meal period policy does not defeat class claims premised on a universal practice of failing to provide meal periods.
With respect to Defendants? second and third arguments that they did not affirmatively interfere with employees? ability to take their meal periods and that there is no affirmative obligation to ensure that employees take their meal periods, ?a UCL claim may be predicated on a practice of not paying premium wages for missed, shortened, or delayed meal breaks attributable to the employer?s instructions or undue pressure, and unaccompanied by a suitable employee waiver or agreement.? (Safeway, Inc. v. Superior Court of Los Angeles County, supra, 238 Cal.App.4th at 1155-1156.)
Defendants used three forms of time records during the proposed class period: (1) From 2007-2014, Exh 6 to the Barela Deposition was used (see Qualls Decl. Exh. D p. 12-14 and Exh. 6); (2) for a limited time in 2014, Exh. 4 was used (see id. at Exh. 4); and (3) from 2014 to the present, Exh. 8 was used. None of these forms shows any meal periods were given for shifts over 5 hours. Moreover, Section 7(A)(3) of the applicable IWC Wage Order (arguably either Order 4 or 7) requires that time records show the starting and ending times of each employee?s daily work, as well as the times that meal periods began and ended unless ?operations cease.? There is no evidence regarding cessation of operations, and there is no evidence that Defendants included these specific times on their time records.
Thus, ?a rebuttable presumption arises that the employee was not relieved of duty and no meal period was provided.? (Safeway, Inc. v. Superior Court of Los Angeles County, supra, 238 Cal.App.4th at 1159-1160.) Plaintiff therefore has established that the theory of whether Defendants? failure to pay premium wages when required is amenable to common proof.
Typicality
?[T]he purpose of the typicality requirement is to assure that the interest of the named representative aligns with the interests of the class. 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.? (Johnson v. GlaxoSmithKline, Inc. (2008) 166 Cal.App.4th 1497, 1509 [internal citations and quotes omitted].)
Plaintiff argues his claims are typical because he worked as a Systems Specialist during the class period, was not provided 30 minute off-duty meal periods (evidenced by Defendants? timekeeping records), and did not receive an extra hour of pay when he failed to receive a meal period. (Ibrahim Decl. ? 5, Exh. B.) Defendants do not argue otherwise. This element is satisfied.
Adequacy
?The adequacy inquiry … serves to uncover conflicts of interest between named parties and the class they seek to represent.? (Global Minerals & Metals Corp. v. Superior Court (2003) 113 Cal.App.4th 836, 851.)? ?Where there is a conflict that goes to the very subject matter of the litigation, it will defeat a party?s claim of class representative status. Thus, a finding of adequate representation will not be appropriate if the proposed class representative?s interests are antagonistic to the remainder of the class.? (Ibid. [internal quotes and citations omitted].)
Plaintiff proffers evidence regarding his adequacy as a class representative (Ibrahim Decl. ??6-7) and the adequacy of his counsel (Qualls Decl. ?? 13-14). Defendants do not argue to the contrary. This element is met.
Superiority
?In considering whether a class action is a superior device for resolving a controversy, the manageability of individual issues is just as important as the existence of common questions uniting the proposed class.? (Duran v. U.S. Bank Nat. Assn. (2014) 59 Cal.4th 1, 29.) ?[T]he court must also conclude that litigation of individual issues, including those arising from affirmative defenses, can be managed fairly and efficiently.? (Id. at 28-29.)
It appears that a class action would be a superior means of adjudicating the UCL claim for the meal period class. This claim is amenable to class-wide resolution insofar as it is based on a uniform practice of not recording meal breaks. Where ?the issues slated for contest are primarily common issues involving common evidence,? the element of superiority is met. (Bufil v. Dollar Financial Group, Inc. (2008) 162 Cal.App.4th 1193, 1208.)
Proposed Class Notice and Administrator
The Court approves Rust Consulting as the Administrator. The proposed Class Notice needs to be reworded to conform to the Court?s ruling (i.e. certification of the UCL claim only).