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George Schulz and Pablo Cardona, Individuals On Behalf of (Consolidated With 09-Cv-2081) Themselves and All Persons Similarly Situated v. Qualxserv

April 26, 2012


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


The Court heard oral argument on Plaintiffs' motion to certify this employment class action on July 8, 2011. Having considered the briefs, the arguments of counsel, the record, and the governing law, the Court GRANTS Plaintiffs' motion.*fn1 The Court certifies a class of all individuals employed in California by Defendants QualxServ, LLC and Worldwide TechServices, LLC as a QualxServ Service Partner, Service Partner, or Part Time Field Service Representative who were paid by piece-rate compensation during the period from January 6, 2005 to present. The class claims are alleged in the Consolidated Complaint in the second through tenth causes of action which allege denial of overtime compensation, failure to pay wages for compensable meal and rest break periods, failure to pay minimum wage rates and time worked "off the clock," failure to fully reimburse employees for necessary business expenses, failure to pay all final accrued wages at the time of termination, late payment of final accrued wages, failure to furnish accurate


Defendants send field technicians to repair and service computers at businesses and private homes throughout California. Consol. Compl. ¶¶ 2, 24, 26-30. The representatives are two former technicians, George Schulz and Pablo Cardona. Id. ¶¶ 15-16.

According to the class allegations in the Consolidated Complaint, Defendants pay a flat rate (between $28 and $38) for each completed service call. Id. ¶ 3. The piece-rate compensated employees for the hours worked on assignment, travel time, and expenses such as gas and parking, but precluded reimbursement for out-of-pocket expenses, such as vehicles, cell phones, computers, internet service, and tools. Id. ¶ 3, 36. If the technician drives more than 35 miles to a customer, Defendants will reimburse for mileage, but at a rate below the "presumptively reasonable" rate. Pls.' Mot. at 4. Each morning, the technician logs onto the Defendants' computer system to review assignments and then call the customer to set up an appointment time. Id. The technician must pick up the necessary parts before noon. Id. at 4-5. At the end of the day, technicians must perform certain "postliminary" procedures.

These facts underlie the various state law claims that Plaintiffs seek to pursue on behalf of a class of similarly-situated technicians.*fn2 First, Plaintiffs allege Defendants violated § 2802 of the Labor Code by failing to reimburse employees "for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties." Cal. Labor Code § 2802(a); Consol. Compl. ¶ 73 (sixth claim). Namely, Defendants allegedly failed to reimburse technicians for the use of their personal cars, cell phones, and tools even though these items are necessary to perform their job duties.

Second, Plaintiffs allege a failure to pay minimum and overtime wages. Cal. Lab. Code §§ 510 (defining eight-hour day and forty-hour week), 1194 (authorizing employee to file civil action to recover "minimum wage or the legal overtime compensation"), 1197 (requiring payment of minimum wage); Consol. Compl.¶¶ 7-9, 31-33, 35, 55 (second claim), 69 (fifth claim). For example, Plaintiffs allege that Defendants enforced practices and policies that required employees to perform job-related tasks "off the clock." Consol. Compl. ¶ 69. If Defendants properly recorded the time spent on preliminary and postliminary work activities, many technicians would allegedly be entitled to overtime pay.

In related claims, Plaintiffs also allege Defendants failed to provide meal and rest break periods. Consol. Compl. ¶¶ 63 (third claim), 66 (fourth claim). These claims are based on California Labor Code § 512 and § 226.7 as well as the IWC's Wage Order No. 4-2001 (meal periods and total daily hours worked "shall" be recorded).

Fourth, Plaintiffs allege that Defendants failed to provide accurate, itemized wage statements pursuant to California Labor Code § 226.*fn3 Consol. Compl.¶ 86 (ninth claim). For instance, the pay statements did not accurately reflect the hours worked and other details required by statute. Id. ¶¶ 11-12, 40.

Fifth, Plaintiffs contend Defendants did not pay employees who were terminated their final paycheck within 72 hours. Cal. Labor Code §§ 201 (immediate payment of wages upon discharge), 202 (immediate payment of wages upon resignation), 203 (penalty for untimely payment); Consol. Compl. ¶¶ 35, 39, 79 (seventh claim), 82 (eighth claim). Instead, Defendants allegedly waited until the next regular payday to send the final check.

As remedies for these claims, Plaintiffs seek a declaratory judgment, an injunction, damages, penalties, restitution, interest, and attorney's fees. Consol. Compl. at pp. 34-38.

Sixth and finally, Plaintiffs allege these labor law violations constitute unfair and unlawful business practices. Cal. Bus. & Prof. Code § 17200; Consol. Compl. ¶¶ 32-34, 38, 40, 90-92 (tenth claim). California's Unfair Competition Law ("UCL") provides for an injunction or other relief as necessary to restore money acquired by unlawful competition. Cal. Bus. & Prof. Code § 17203; ABC Int'l Traders, Inc. v. Matsushita Elec. Corp., 14 Cal. 4th 1247 (1997) (remedy includes restitution).


"The class action is 'an exception' to the usual rule that litigation is conducted by and on behalf of the individual named parties only." Wal-Mart v. Dukes, 131 S. Ct. 2541, 2550 (2011). California's clear public policy to enforce its labor laws for the benefit of workers encourages the use of the class action device. Sav-on Drug Stores, Inc. v. Super. Ct., 34 Cal. 4th 319, 340 (2004).

To obtain certification in federal court, a plaintiff bears the burden of proving that the class meets all four requirements of Rule 23(a) -- numerosity, commonality, typicality, and adequacy -- and that it satisfies one of the three categories of Rule 23(b). Ellis v. Costco Wholesale Corp., 657 F.3d 970, 979-80 (9th Cir. 2011). Here, Plaintiffs rely on 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 amount of damages is invariably an individual question and does not defeat class action treatment." Blackie v. Barrack, 524 F.2d 891, 905 (9th Cir. 1975); accord Stearns v. TicketMaster Corp., 655 F.3d 1013, 1026 (9th Cir. 2011); Yokoyama v. Midland Nat'l Life Ins. Co., 594 F.3d 1087, 1089 (9th Cir. 2010).

Courts must engage in a "rigorous analysis" of each Rule 23 factor -- even if that means the court must evaluate the merits of the plaintiff's case. Ellis, 657 F.3d at 981. "[T]he merits for 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." Id. Of course, the district court does not go so far as to 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) ("The court may not go so far . . . as to judge the validity of these claims.") (citation omitted).

A. The Four Requirements of ...

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