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Dalton v. Lee Publications

July 27, 2010


The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge


Plaintiffs have filed a Motion for Class Certification [Doc. 42], and Defendant Lee Publications, Inc. has filed a Motion to Deny Class Certification [Doc. 35]. For the following reasons, the Court GRANTS Plaintiffs' motion, DENIES Defendant's motion, and CERTIFIES the class.


Lee Publications, doing business as North County Times ("NCT"), operates the North County Times, a newspaper of general circulation in the San Diego area. Plaintiffs are current and former home-delivery newspaper carriers for NCT.*fn1 Their central claim is that Defendant violated several provisions of the California Labor Code by classifying them as independent contractors instead of employees. As a result of this alleged misclassification, they allegedly suffered damages in the form of unpaid regular and overtime wages, unpaid rest breaks and meal periods, improper deductions from their paychecks, and expenses incurred in discharging their duties, among other things.

A. Newspaper Carriers' Tasks

Plaintiffs deliver the North County Times to the homes of subscribers. Each morning, the newspaper carriers arrive at one of several distribution centers in San Diego County. The carriers arrive at different times. Although they generally arrive between 1:00 a.m. and 4:00 a.m., some arrive earlier or later. The arrival time varies depending on the day of the week.

Upon arrival, the carriers are responsible for assembling the newspapers. Some assemble the papers at the distribution center-those that use the distribution center pay a rental fee-and others assemble the papers elsewhere. Assembling the newspapers may involve folding or inserting the following: newspaper inserts, sections, pre-prints, samples, supplements and other products at NCT's direction. The carriers pay for their own rubber bands and plastic bags used to assemble the papers. Some carriers buy the rubber bands and bags from Defendant, and others purchase them elsewhere. The carriers also pay for their own gas and automobile expenses they incur delivering the newspapers.

The carriers are contractually obligated to deliver the assembled newspapers by 6:00 a.m. each weekday and 7:00 a.m. on Saturday and Sunday.

B. The Contract

Each class member has signed a contract with NCT. Since March 2006, the contracts have been price-per-piece agreements, which obligate NCT to pay carriers a price per paper delivered. NCT collects payments from the subscribers. Before March 2006, the contracts were buy-sell agreements, under which carriers bought newspapers wholesale and sold them retail. In all other material respects the two types of agreements are similar.

The contracts contain provisions regarding the carriers' primary duties, rate of pay, liabilities, penalties, and expense reimbursement, among other things. All the contracts state that the carrier "is an independent contractor, is not an employee or agent of the Company, and is not subject to the Company's direction or control." And either party may terminate the contract without cause with thirty-days notice, or for cause without notice. The Court examines the contracts in more detail below.


A plaintiff seeking class certification bears the burden of establishing that each of the four requirements of Federal Rule of Civil Procedure 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). The Court first addresses whether Plaintiffs have satisfied the elements of 23(a).

A. Rule 23(a)

The requirements of Rule 23(a) are that (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23(a). These requirements are known as numerosity, commonality, typicality, and adequacy.

1. Numerosity

Rule 23(a)(1) requires that the proposed class be "so numerous that joinder of all members is impracticable." Fed. R. Civ. P. 23(a)(1). Here, Plaintiffs estimate there are 800 class members. Defendant does not dispute this element, and the Court holds that the class satisfies the numerosity requirement.

2. Commonality

Rule 23(a)(2) requires that "there are questions of law or fact common to the class." Fed. R. Civ. P. 23(a)(2). "Commonality focuses on the relationship of common facts and legal issues among class members." Dukes, 509 F.3d at 1177. Rule 23(a)(2) is permissive, and "[a]ll questions of fact and law need not be common to satisfy the rule." Id. (quoting Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998). "[O]ne significant issue common to the class may be sufficient to warrant certification." Id.

Here, Defendant does not appear to seriously dispute that Plaintiffs have satisfied the commonality requirement. Indeed, its papers scarcely address the issue.*fn2 But even if Defendant argued against finding commonality, the Court would disagree. There is "one significant issue common to the class" sufficient to warrant certification. Id. And that issue is the one central to this case: whether Defendant improperly characterized Plaintiffs as independent contractors instead of employees. All class members had similar contracts with Defendant, all had similar duties, and all had similar pay structures. See Murillo v. Pac. Gas & Elec. Co., No. 08cv1974, 2010 WL 797009, at * 6 (E.D. Cal. March 5, 2010) (commonality requirement met in overtime wages case where class members subject to the ...

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