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Enedino Duran Gomez, et al v. Rossi Concrete

January 31, 2012

ENEDINO DURAN GOMEZ, ET AL.,
PLAINTIFFS,
v.
ROSSI CONCRETE, INC. ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Hon. Anthony J. BattagliaU.S. District Judge

ORDER DENYING PLAINTIFF'S MOTION TO MODIFY CLASS AND DENYING DEFENDANT'S MOTION TO DECERTIFY CLASS [Doc. Nos. 89 and 117]

Plaintiffs have filed a motion to modify the class, [Doc. No. 89], and Defendants have filed a motion to decertify the class. [Doc. No. 117-1.] Based upon the parties moving papers and for the reasons set forth below, these motions are DENIED.

Background

Plaintiffs*fn1 filed this action on behalf of themselves and other similarly situated employees and participants, against Rossi Concrete, Inc. ("Corporation"), Joseph James Rossi ("Owner")*fn2 , and Rossi Concrete, Inc. Defined Benefit Pension Plan ("Plan 1") on August 7, 2008. The Complaint states eleven claims for relief. At issue in the instant motion are the Third, Seventh, Tenth and Eleventh Claims. The Third Claim is for violation of fiduciary duties by the Corporation and the Owner under the Employee Retirement Income Security Act (ERISA) §§409 and 502(a)(2), 29 U.S.C. §§1109, 1132(a)(2) as to one of three pension plans sponsored by the Corporation, referred to as "Plan 3." The Seventh Claim is for failure to pay minimum and overtime wages under Labor Code §1194. The Tenth Claim is for failure to Pay Wages on Termination under Labor Code §203. The Eleventh claim is Unfair Business Practices based on the Seventh through Tenth Claims under Bus. & Prof. Code §17200.

The Court previously granted in part and denied in part the plaintiff's motion for class certification. [Doc. No. 77, at 1.] The Court certified the Plan 3 Sub-Class and found it did "not [need to] certify an over arching main class at this time." [Doc. No. 77, at 13.] The Plaintiff then filed a motion to modify the class in order to add two additional Sub-Classes, a Driver Sub-Class and a Terminated SubClass. [Doc. No. 89, at 2.] Defendants filed a motion to decertify the Plan 3 Sub-Class. [Doc. No. 117-1, at 14.]

Legal Standard

On a motion for class certification, a court must generally take the substantive allegations of the complaint as true. In re Coordinated Pretrial Proceeedings in Petroleum Prods. Antitrust Litigation, 691 F.2d 1335, 1342(9th Cir. 1982). Rather than deciding whether the claims have any merit, the inquiry instead focuses on the "nature and range of proof necessary to establish those allegations." Id. However, if the merits of the claims overlap with consideration of the Rule 23 factors, a court may look beyond the pleadings to ensure Rule 23's requirements are met. Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571, 594 (9th Cir. 2010). Thus, a court is not bound to accept a plainitff's allegations as true if they relate to class certification issues. Id.

Discussion

Plaintiffs filed a motion to modify the class. [Doc. No. 89.] The motion to modify outlined two sub-classes. [Doc. No. 89, at 1.] First was a Driver Sub-Class, applicable only to the Seventh Claim and defined as: class members who were required to drive vehicles to and from job sites as part of their employment with the Employer.*fn3 [Doc. No. 89, at 3.] The second, Terminated Sub-Class, pertained only to the Tenth Claim and was defined as: those former employees in the Class who were terminated or left employment before the filing of this lawsuit.*fn4 [Doc. No. 89, at 3.] The time period for the original certified sub-class was defined as, "participants, or former participants within the last four years, of the employee benefit plan [. . .]." (Compl. ¶ 21.); [Doc. No. 77, at 2.]

I. Motion to Modify: Description of the Class Claims to Be Added

Previously, the Court only certified the Plan 3 Sub-Class because it was the only class that met the requirements of Federal Rule of Civil Procedure Rules 23(a) and (b). [Doc. No. 77, at 13.] Specifically regarding the Driver Sub-Class,*fn5 the Court found Plaintiff's evidence for numerosity to be insufficient because it was unclear how many of the eighty drivers had worked on public-works projects. [Doc. No. 77, at 12.] Concerning the Terminated Sub-Class,*fn6 the Court also found that the evidence provided did not satisfy numerosity because "[. . .] Plaintiffs have not cited any evidence showing how many of those 327 field employees worked on public-works projects, which makes it impossible for the Court to determine the size of the Terminated Sub-Class." [Doc. No. 77, at 12.]

A. Requirements Rule 23(a)

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 Stores, Inc., 603 F.3d 571, 598-99 (9th Cir. 2010). These requirements must be satisfied with respect to each class and sub-class. Fed. R. Civ. P. 23(c)(5); Betts v. Reliable Collection Agency, Ltd., 659 F. 2d 1000, 1005 (9th Cir. 1981). The Court first addresses whether Plaintiffs' proposed sub-classes have satisfied the elements of 23(a).

This sub-class is applicable to the Tenth Claim only. Representative Plaintiffs Galvan, Z. Millan, A Millan and Martinez are seeking to be ...


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