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Guadalupe Gonzalez, Norma Lopez Juan, Individually and On Behalf of Others Similarly Situated v. Millard Mall Services

February 28, 2012

GUADALUPE GONZALEZ, NORMA LOPEZ JUAN, INDIVIDUALLY AND ON BEHALF OF OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
MILLARD MALL SERVICES, INC., THE MILLARD GROUP, AND DOES 1 THROUGH 50,
DEFENDANTS.



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

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR CLASS CERTIFICATION [Doc. No. 48.]

Before the Court is Plaintiffs' motion for class certification of the claims in their second amended complaint. Plaintiffs allege seven causes of action which include Defendants' failure to pay split shift pay in violation of Wage Order 4-2001*fn1 ; failure to provide meal periods as required by California Labor Code ("Labor Code") §§ 226.7, 512 and Wage Order 4-2001; failure to provide rest periods as required by Labor Code § 226.7 and Wage Order 4-2001; violation of Labor Code § 212; failure to pay all waged earned upon termination of employment in violation of Labor Code § 202; violation of California Business and Professions Code ("UCL") § 17200; and civil penalties pursuant to the Private Attorneys General Act of 2004 ("PAGA") for issuing improper out-of-state checks in violation of Labor Code section 212. The motion is submitted on the papers without oral argument, pursuant to Civil Local Rule 7.1(d)(1). After a review of the briefs, supporting documentation, and applicable law, the Court GRANTS in part and DENIES in part Plaintiffs' motion for class certification.

Procedural Background

This action was originally filed in the Superior Court of California for the County of San Diego on April 1, 2009. On September 22, 2009, the case was removed to this Court pursuant to the Class Action Fairness Act. (Dkt. No. 1.) On February 11, 2010, Defendants filed a motion for judgment on the pleadings. (Dkt. No. 16.) On April 7, 2010, the Court issued an order denying motion for judgment on the pleadings and granted Plaintiffs' request to file a second amended complaint. (Dkt. No. 28.) A second amended complaint ("SAC") was filed on April 12, 2010. (Dkt. No. 31.) On October 29, 2010, Plaintiffs filed a motion to certify class action. (Dkt. No. 48.) An opposition was filed on January 31, 2011. (Dkt. No. 68.) Plaintiffs filed a reply on April 1, 2011. (Dkt. No. 83.) On March 14, 2011, the case was transferred to the undersigned judge. (Dkt. No. 82.) On August 1, 2011, both parties filed a joint statement on Wal-Mart Stores, Inc. v. Dukes, --U.S.--, 131 S. Ct. 2541, 2553-54 (2011). (Dkt. Nos. 86, 87.)

Factual Background

Defendant Millard Mall Services, Inc.*fn2 ("Millard") is a major corporation providing janitorial services to shopping malls and other commercial facilities. Millard is based in Lincolnwood, Illinois and employs more than 4,000 workers in 32 states, including California.

Individually named Plaintiffs are two former janitorial employees of Defendant. Plaintiff Guadalupe Gonzalez performed janitorial services from November 2007 to September 2008. (Joseph Decl. ¶ 3.) Plaintiff Normal Lopez Juan performed janitorial services from April 2005 to July 2008. (Id.) They were both terminated after failing to report to work for several consecutive days. (Id.) Gonzalez' last day worked was September 10, 2008 and she was terminated on September 18, 2008. (Joseph Decl., Ex. 1.) Juan's last day worked was July 10 or 19th, 2008 and she was terminated on August 11, 2008. (Id.) They allege that Defendants regularly scheduled them to work a split-shift and were never paid the premium of one hour's pay at the minimum wage; Defendants regularly failed to provide them with a 30 minute, uninterrupted meal period for work of more than five hours and failed to pay them an additional hour's pay; Defendants regularly failed to provide a 10 minute rest period per four hours of work and failed to pay them an additional hour's pay; Defendants failed to provide a paycheck with an address of a California bank and Defendants failed to issue them final paychecks according to applicable law and the paychecks did not include any unpaid wages for failure to provide meal and/or rest periods and unpaid split shift pay. (SAC ¶¶ 4, 5.)

From April 1, 2005 through November 16, 2011, Millard Mall employed 2,624 hourly-paid janitorial/housekeeping employees (315 current employees and 2,015 former employees) in California. (Dkt. No. 68-6, Joseph Decl. filed 1/31/11 ¶ 2.) The company's employment policies and procedure originate from the corporate offices in Lincolnwood Illinois. Payroll is handled centrally in Lincolnwood, Illinois and all payroll checks are cut there. Pay raises and employee termination must be approved by the Human Resources Department in Lincolnwood, Illinois.

At each location, Millard employs a Project Manager whose is responsible for scheduling the janitorial employees' work schedules as well as their meal and rest times. As Plaintiffs state "[a]s a matter of company-wide policy and practice, the employees' work schedules, as well as the meal and rest times are controlled by Millard's Project Managers." (Dkt. 48-1 at 9.) Millard requires that all of its hourly employees clock in and out for each work period as well as each meal period taken.

Plaintiffs seek an order certifying two Classes and four sub-Classes.

1. Class A to include "[a]ny and all persons who have been employed directly or indirectly by The Millard Group, Inc. and/or Millard Mall Services, Inc. in California at any time from April 1, 2005 to the present." (Dkt. 48 at 2.)

2. Class B to include "[a]ny and all persons who have been employed directly or indirectly by The Millard Group, Inc. and/or Millard Mall Services, Inc. as janitorial/housekeeping employees in California at any time from April 1, 2005 to the present." (Id.) Within Class B are four subclasses.

A. Sub-Class 1 includes "[a]ny and all members of Sub-Class B who worked at least one work schedule, which was interrupted by non-paid non-working periods established by the employer, other than bona fide rest or meal periods." (Id.)

B. Sub-Class 2 includes "[a]ny and all members of Sub-Class B who worked more than five hours in a day without receiving a meal period of 30 minutes or longer." (Id.)

C. Sub-Class 3 includes "[a]ny and all members of Sub-Class B who worked a work period of four hours or more without receiving a 10-minute paid rest period." (Id. at 3.)

D. Sub-Class 4 includes "[a]ny and all members of Sub-Class B who are no longer employed by The Millard Group, Inc. and/or Millard Mall Services, Inc." (Id. at 3.)

A. Requests for Judicial Notice

Defendants request that the Court take judicial notice of three documents: 1) California Division of Labor Standards Enforcement's ("DLSE") February 3, 1995 Opinion Letter; 2) DLSE's October 23, 2008 Memorandum; and 3) DLSE website's answers regarding waiting time penalty. (Dkt. No. 68-1.) Plaintiffs request that the Court take judicial notice of the DLSE's August 13, 2003 Opinion Letter. (Dkt. No. 83-2.)

A court may take judicial notice of a fact "not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201. The content of records and reports of administrative bodies are proper subjects for judicial notice under Rule 201(d). Interstate Natural Gas Co. v. S. Cal. Gas Co., 209 F.2d 380, 385 (9th Cir. 1953). Since the parties have not disputed the taking of judicial notice of these documents, and the documents are subject to judicial notice, the Court GRANTS Defendants' and Plaintiffs' requests for judicial notice.

B. Evidentiary Objections

In their opposition, Defendants filed objections to evidence submitted by Plaintiffs in their motion for class certification. (Dkt. No. 68-2.) In their reply, Plaintiffs responded to Defendants' evidentiary objections. (Dkt. No. 83-1.)

Since a motion to certify a class is a preliminary procedure, courts do not require strict adherence to the Federal Rules of Civil Procedure or the Federal Rules of Evidence. See Eisen v. Carlisle and Jacquelin, 417 U.S. 156, 178 (1974) (The class certification procedure "is not accompanied by the traditional rules and procedures applicable to civil trials."). At the class certification stage, "the court makes no findings of fact and announces no ultimate conclusions on Plaintiffs' claims." Alonzo v. Maximus, Inc., 275 F.R.D. 513, 519 (C.D. Cal. 2011) (quoting Mazza v. Am. Honda Motor Co., 254 F.R.D. 610, 616 (C.D. Cal. 2008). Therefore, the Court may consider inadmissible evidence at the class certification stage. Keilholtz v. Lennox Hearth Prods, Inc., 268 F.R.D. 330, 337 n. 3 (N.D. Cal. 2010). "The court need not address the ultimate admissibility of the parties' proffered exhibits, documents and testimony at this stage, and may consider them where necessary for resolution of the [Motion for Class Certification]." Alonzo, 275 F.R.D. at 519.

Recently, the United States Supreme Court, in dictum, expressed its "doubt" about a district court's conclusion that "Daubert did not apply to expert testimony at the certification stage of class-action proceedings." Wal--Mart Stores, Inc. v. Dukes, ------ U.S. --------, 131 S. Ct. 2541, 2553--54 (2011). Although the Ninth Circuit has recognized that "Supreme Court dicta have a weight that is greater than ordinary judicial dicta as prophecy of what that Court might hold," dicta from the Supreme Court are still not binding on lower courts. United States v. Montero--Camargo, 208 F.3d 1122, 1132 n. 17 (9th Cir. 2000); Newdow v. Rio Linda Union Sch. Dist., 597 F.3d 1007, 1106 (9th Cir. 2010) (Supreme Court dicta . . . are not binding"). The court of appeals is required to "follow binding Supreme Court cases unless and until the Supreme Court overrules them." Newdow, 597 F.3d at 1106.

Here, Defendants present evidentiary objections to evidence submitted by Plaintiffs in support of their motion for class certification. Of importance are 112 questionnaire responses by putative class members. Defendants object because the responses are not signed under penalty of perjury and 68 of them are in Spanish and not translated. At this stage of preliminary proceedings, the Court need not require strict adherence to the Federal Rules of Evidence. See Eisen, 417 U.S. at 178. Accordingly, the Court overrules Defendants' evidentiary objections.

C. Legal Standard for Class Certification

Federal Rule of Civil Procedure 23 ("Rule 23") governs the certification of a class. See Fed. R. Civ. P. 23. A plaintiff seeking class certification must affirmatively show the class meets the requirements of Rule 23. Dukes, 131 S. Ct. at 2551. To obtain certification, a plaintiff bears the burden of proving that the class meets all four requirements of Rule 23(a)-numerosity, commonality, typicality, and adequacy. Ellis v. Costco Wholesale Corp., 657 F.3d 970 979-80 (9th Cir. 2011). If these prerequisites are met, the court must then decide whether the class action is maintainable under Rule 23(b). This case involves Rule 23(b)(3), which authorizes certification when "questions of law or fact common to class members predominate over any questions affecting only individual class members," and "a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." Fed. R. Civ. P. 23(b)(3). The Court exercises discretion in granting or denying a motion for class certification. Staton v. Boeing Co., 327 F.3d 938, 953 (9th Cir. 2003).

The Court is required to perform a "rigorous analysis," which may require it "to probe behind the pleadings before coming to rest on the certification question." Dukes, 131 S. Ct. at 2551. "'[T]he merits of the class members' substantive claims are often highly relevant when determining whether to certify a class. More importantly, it is not correct to say a district court may consider the merits to the extent that they overlap with class certification issues; rather, a district court must consider the merits if they overlap with Rule 23(a) requirements." Ellis, 657 F.3d.at 981. Nonetheless, the district court does not conduct a mini-trial to determine if the class "could actually prevail on the merits of their claims." Id. at 983 n.8; United Steel, Paper & Forestry, Rubber, Mfg. Energy, Allied Indus. & Serv. Workers Int'l Union, AFL-CIO v. ConocoPhillips Co., 593 F.3d 802, 808 (9th Cir. 2010) (citation omitted) (court may inquire into substance of case to apply the Rule 23 factors, however, "[t]he court may not go so far . . . as to judge the validity of these claims.").

The issues disputed by the parties are whether Plaintiffs have shown commons question of law or fact sufficient to meet their burden under Rule 23(a)(2) and whether Plaintiffs have shown that these common questions ...


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