The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge
Plaintiff moves for certification of the following class under Rule 23 of the Federal Rules of Civil Procedure*fn1: "All current and former employees of Defendant who worked shifts in excess of six (6) hours as a sales associate at [Defendant's] retail stores in California, and who were entitled to receive meal periods, since July 21, 2003." Plaintiff argues this class should be certified since Defendant failed to pay compensation to its employees who worked through their meal periods, as required by California Labor Code §§ 226.7, 512 and the Industrial Welfare Commission's ("IWC") Wage Order 7-2001.
"The party seeking certification bears the burden of showing that each of the four requirements of Rule 23(a) and at least one requirement of Rule 23(b) have been met." Dukes v. Wal-Mart, Inc., 509 F.3d 1168, 1176 (9th Cir. 2007) (citations omitted). Plaintiff argues she has satisfied the class certification prerequisites in Rule 23(a) and Rule 23(b)(3). Defendant disputes Plaintiff's contention that Rule 23(b)(3) is satisfied.
Rule 23(b)(3) requires a court to find "the questions of law or fact common to the class members predominate over any question affecting individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." "To determine whether common issues predominate, this Court must first examine the substantive issues raised by Plaintiff and second inquire into the proof relevant to each issue." Jiminez v. Dominos Pizza, Inc., 238 F.R.D. 241, 251 (C.D. Cal. 2006) (quotation and citation omitted); In re Coordinated Pretrial Proceedings in Petroleum Prods. Antitrust Litig. State of Cal. v. Standard Oil Co. of Cal., 691 F.2d 1335, 1342 (9th Cir. 1982) (citations omitted) (stating when "determining whether to certify the class, the district court is bound to take the substantive allegations of the complaint as true, [and] is required to consider the nature and range of proof necessary to establish those allegations").
Plaintiff argues California law obligates an employer to "ensure" that meal periods are taken, and to compensate each employee for a missed meal period. Defendant rejoins this law only requires an employer to "provide" employees with an opportunity to take a meal period, and that class certification is inappropriate here because individualized discovery is necessary to determine why an employee failed to take a meal period. This dispute requires interpretation of California "meal period" law.
"When interpreting state law, federal courts are bound by decisions of the state's highest court." Kimoto v. McDonald's Corps., No. CV 06-3032, 2008 WL 4690536, at *5 (C.D. Cal. Aug. 19, 2008) (citing In re Kirkland, 915 F.2d 1236, 1238 (9th Cir. 1990)). The California Supreme Court has not addressed whether an employer is required to "provide" or "ensure" meal periods. "In the absence of such a decision, a federal court must predict how the highest state court would decide the issue using intermediate appellate court decisions, decisions from other jurisdictions, statutes, treatises, and restatements as guidance." Ariz. Elec. Power Coop., Inc. v. Berkeley, 59 F.3d 988, 991 (9th Cir. 1995) (internal quotation and citation omitted). However, decisions of the California appellate courts are not controlling, but may be instructive on an unsettled area of California law. Guebara v. Allstate Ins. Co., 237 F.3d 987, 993 (9th Cir. 2001).
Plaintiff argues California Labor Code §§ 226.7, 512 and Wage Order 7-2001 should be interpreted consistent with what she opines is the holding in Cicairos v. Summit Logistics, Inc., 133 Cal. App. 4th 949 (2005), a case that Plaintiff contends held an employer shall ensure that its employees take meal periods. However, as the court stated in Watson-Smith v. Spherion Pacific Workforce, No. C 07-05774, 2008 WL 5221084, at *3 (N.D. Cal. Dec. 12, 2008):
Cicairos v. Summit Logistics, Inc., 133 Cal. App. 4th 949, 35 Cal. Rptr. 3d 243 (2005) does not assist Plaintiff. In Cicairos, the employer managed and scheduled the drivers in such a way that prevented the drivers from taking their meal periods. Id. at 962, 35 Cal. Rptr. 3d 243. Based on an opinion letter from the Department of Industrial Relations, the court held that employers have an affirmative obligation to ensure that workers are relieved of all duty during their meal periods. Id. The court also noted that employers have an obligation pursuant to the wage order to record their employees' meal periods. Because the employer complied with neither obligation, based on the facts before it, the court found that the employer "failed to establish it provided the plaintiffs with their required meal periods." Id. at 963, 35 Cal. Rptr. 3d 243.
Defendant submits the California Division of Labor Standards Enforcement Office's ("DLSE") staff memorandum dated October 23, 2008, on "Court Rulings on Meal Periods," in support of its position that an employer is only required to provide a meal period. The DLSE states in the memorandum: "the language of the [referenced statutes and wage order], and the cases interpreting them demonstrate compelling support for the position that employers must provide meal periods to employees but do not have an additional obligation to ensure that such meal periods are actually taken." (DLSE Memorandum dated Oct. 23, 2008, p.2.) The DLSE also discusses the Cicairos decision in this memorandum, stating "there is recent, substantial, and persuasive authority from many federal trial courts which have interpreted Cicairos that the appellate court in that case did not hold as a matter of binding law that employers have a statutory or regulatory obligation to ensure that employees actually take their meal periods." (Id.)
"The DLSE is the state agency empowered to enforce California's labor laws, including IWC wage orders." Morillion v. Royal Packing Co., 22 Cal. 4th 575, 581 (2000) (citation omitted).
"As such it frequently issues opinions and letters from which we can properly obtain guidance." Koehl v. Verio, Inc., 142 Cal. App. 4th 1313, 1334 (2006). The DLSE's October 23 staff memorandum is given "some consideration by the Court." Yamaha Corp. of Am. v. State Bd. of Equalization, 19 Cal. 4th 1, 15 (1998). However, "the courts must remain the final authorities on critical questions of statutory construction." Bechtel Const., Inc. v. United Broth. of Carpenters & Joiners of Am., 812 F.2d 1220, 1223 (9th Cir. 1987) (quoting Fagner v. Heckler, 779 F.2d 541, 543 (9th Cir. 1985)).
The language in the statutes supports the DLSE's conclusions in its memorandum. Section 226.7(b) requires an employer to pay additional compensation to an employee "[i]f [it] fails to provide [the] employee a meal period or rest period in accordance with an applicable order of the Industrial Welfare Commission...." (emphasis added). Section 512(a) states "[a]n employer may not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than 30 minutes...." (emphasis added). Since neither statute "define[s] the term ['provide'] differently than its common usage, we turn to the dictionary." United States v. Pearson, 274 F.3d 1225, 1231 n.6 (9th Cir. 2001). The dictionary definition of the term "provide" is "'to supply or make available' [and] does not suggest any obligation to ensure that employees take advantage of what is made available to them." Brown v. Federal Express Corp., 249 F.R.D. 580, 585 (C.D. Cal. 2008) (quoting Merriam Webster's Collegiate Dictionary 937 (10th ed. 2002)).
Language in the wage order "comes closest to imposing a duty to enforce meal breaks." Brown, 249 F.R.D. at 585. Wage Order 7-2001 states "[n]o employer shall employ any person for a work period of more than five (5) hours without a meal period of not less than 30 minutes...." 8 CCR § 11070(11). However, the California Supreme Court dicta in Murphy v. Kenneth Cole Productions, Inc., 40 Cal. 4th 1094 (2007), does not support construing this language to impose a duty on employers to ensure that meal breaks are taken. When discussing this wage order, the Supreme Court said "employees are entitled to an unpaid 30-minute, duty-free meal period after working for five hours.... An employee forced to forgo his or her meal period... loses a benefit to which the law entitles him or her." Id. at 1104 (emphasis added). These statements indicate that an employee decides whether he or she takes a meal period.
For the stated reasons, an employer is required to provide meal periods but need not ensure that an employee ...