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Rafael Munoz, et al., Plaintiffs v. Giumarra Vineyards

July 5, 2012

RAFAEL MUNOZ, ET AL., PLAINTIFFS,
v.
GIUMARRA VINEYARDS CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR CLASS CERTIFICATION (Doc. 42) ORDER DENYING AS MOOT MOTION TO STRIKE THE DECLARATION OF CHRISTOPHER PURDY (Doc. 98)

Plaintiffs Rafael Munoz, Santos R. Valenzuela, Trinidad Ruiz, Marta R. Rincon de Diaz, Ramon Perales, and Hugo Perez Rios seek class certification pursuant to Rule 23 of the Federal Rules of Civil Procedure. (Doc. 42). On September 30, 2011, Defendant Giumarra Vineyards Corporation filed its opposition to the motion (Docs. 70-77), to which Plaintiffs filed a reply on December 29, 2011 (Doc. 89).

The Court has read and considered the pleadings and supporting documents, and heard oral arguments by counsel on July 2, 2012. For the reasons set forth below, the Court recommends Plaintiffs' motion for class certification be GRANTED IN PART AND DENIED IN PART.

I. PROCEDURAL HISTORY

On March 5, 2004, Arnaldo Lara, Mario Laveaga, Mirna Diaz, Paula Leon, and Raul Diaz, 3 individually and acting for the interests of the general public, ("Lara Group") initiated an action in the 4 Kern County Superior Court against Rogelio Casimiro, doing business as Golden Grain Farm Labor.*fn1

This action was removed to the Eastern District on December 21, 2005.

On November 9, 2005, Plaintiffs' counsel initiated an action against table grape growers based 7 in Kern County, including Giumarra Vineyards Corporation; Marko Zaninovich, Inc.; Sunview 8 Vineyards of California, Inc.; Castlerock; D.M. Camp & Sons; Sunview Vineyards of California; El 9 Rancho Farms; Stevco, Inc; and FAL, Inc.*fn2 (See Doc. 46 at 12, n.17); see also Doe v. D.M. Camp & Sons, 624 F.Supp.2d 1153 (E.D. Cal. 2008).At the time the action was initiated, the plaintiffs were unnamed former and current employees of the defendants. Id. at 1156. The Court acknowledged the Doe matter was related to Lara, as well as several other cases initiated against grape growers. Id.

On December 16, 2005, Santos R. Valenzuela, Trinidad Ruiz, Marta R. Ricon de Diaz, Ramon Cervantes Perales, and Hugo Perez Rios filed a complaint against Giumarra Vineyards, thereby initiating Case No. 1:05-cv-1600-AWI-SMS. The plaintiffs alleged violations of the Migrant and Seasonal Agricultural Worker Protection Act, common law breach of contract, failure to pay wages and/or overtime, failure to reimburse expenses in violation of California Labor Code § 2802, failure to allow for meal and rest breaks pursuant to California Labor Code § 226.7, failure to keep accurate records, and violations of California Business and Professions Code § 17200. (Valenzuela, Doc. 1 at 1-2). Plaintiffs filed a notice of related action in Doe and moved to consolidate the actions. (Doe, Docs. 23-25). The Court denied the motion to consolidate on January 26, 2006. (Doe, Doc. 57).

Defendants in Doe action, including Giumarra Vineyards, filed motions to dismiss the 2 operative complaint. The Court granted the motions to dismiss and to sever the action on March 31, 3 2008, and the plaintiffs were ordered to file amended pleadings against each defendant. (Doe, Doc. 4 168). On May 29, 2008, Rafael Munoz, Lidia Cruz, and Yanet Hernandez were identified as plaintiffs 5 in the Third Amended Complaint against Giumarra Vineyards. (Doe, Doc. 172). On March 31, 2009, 6 the Court ordered Plaintiffs to re-file their suit in a new action within twenty days to finalize the 7 severance. (Doe, Doc. 238). 8

On April 20, 2009, plaintiffs Rafael Munoz, Lidia Cruz, and Yanet Hernandez filed their 9 complaint against Giumarra Vineyards. (Doc. 1). The plaintiffs filed a notice of related cases, including Valenzuela. (Doc. 6). The Court directed the parties to file briefs regarding consolidation (Doc. 8), and on August 20, 2009, the Court ordered the cases be consolidated. (Doc. 26).

In compliance with the Court's order consolidating Valenzuela with Munoz, Plaintiffs filed an Amended Complaint against Giumarra on September 22, 2009. (Doc. 28). Plaintiffs alleged the following: violation of the Agricultural Workers Protection Act, 29 U.S.C. § 1801, failure to pay wages, failure to pay reporting time wages, failure to reimburse required expenses, failure to provide meal and rest periods, failure to pay wages of terminated or resigned employees, knowing and intentional failure to comply with itemized employee wage statement provisions and record keeping requirements, breach of contract, and violation of unfair competition law. Id. at 1-2. Plaintiffs brought the action "on behalf of Plaintiffs and members of the Plaintiff Class comprising all non-exempt agricultural, packing shed, and storage cooler employees employed, or formerly employed, by each of the Defendants within the State of California." Id. at 9. On April 29, 2011, the parties filed a stipulation to amend the operative complaint, thereby "withdrawing Lidia Cruz and Yanet Hernandez as named plaintiffs and class representatives." (Doc. 36).

Plaintiffs filed a motion for class certification on July 22, 2011. (Docs. 42-63). In support of the motion, Plaintiffs submitted 77 declarations of putative class members. (Docs. 54-56). Defendant filed its opposition to the motion for class certification on September 30, 2011. (Doc. 77). In addition, Defendant submitted 252 declarations of its employees, including putative class members, in support of its opposition. (Docs. 70-76).

On November 18, 2011, the parties requested a stay in the action pending the resolution of Brinker Restaurant Corp. v. Sup. Ct., 165 Cal. App. 4th 25 (2008). The parties noted, "At issue in 3 2 Brinker is the standard for determining an employer's obligations with respect to California's rest and 4 meal break laws." (Doc. 79 at 2). Because the amended complaint raised issues pending resolution in 5 Brinker, the Court granted the parties' request to stay the action. (Doc. 80). However, the Court 6 ordered Plaintiffs to file their reply brief prior to the entry of the stay. (See Doc. 69 at 2; Doc. 80 at 4). 7

On December 7, 2011, the parties contacted the Court regarding a discovery dispute, and following a 8 telephonic conference with the parties, the Court found both parties failed to comply with Rule 26. 9

(Doc. 83). Therefore, the Court granted Plaintiffs an extension of time to file a reply to Defendant's opposition, which was filed on December 29, 2011. (Doc. 89).

On April 12, 2012, the California Supreme Court issued its decision in Brinker, and the parties submitted a joint status report on April 23, 2012. (Doc. 92). The parties agreed that the stay should be lifted and requested permission to file briefs regarding the decision in Brinker and its impact upon Plaintiffs' motion for class certification. Id. at 2. Accordingly, the Court lifted the stay and directed the parties to file supplemental briefs regarding Brinker (Doc. 93), which the parties filed on May 25, 2012. (Docs. 96-97).

Plaintiffs filed their motion to strike the class declarations filed with Defendant's opposition on May 16, 2012. (Doc. 94). In addition, Defendant filed a motion to strike the declaration of Christopher Purdy submitted with Plaintiffs' supplemental brief. (Doc. 98). The Court heard oral argument regarding the motions to strike with the motion for class certification on July 2, 2012.*fn3

II. LEGAL STANDARDS FOR CLASS CERTIFICATION

Class certification is governed by the Federal Rules of Civil Procedure, which provide: "One or more members of a class may sue or be sued as representative parties on behalf of all." Fed. R. Civ. P. 23(a). A class action is proper if:

(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). Generally, these prerequisites are referred to as numerosity, commonality, 4 typicality, and adequacy of representation, and "effectively limit the class claims to those fairly 5 encompassed by the named plaintiff's claims." General Telephone Co. of the Southwest v. Falcon, 6 457 U.S. 147, 155-56 (1982) (citing General Telephone Co. v. EEOC, 446 U.S. 318, 330 (1980)). 7

When an action satisfies the prerequisites of Rule 23(a), the Court must consider whether the class is 8 maintainable under one or more of the three alternatives set forth in Rule 23(b). Narouz v. Charter 9 Communs., LLC, 591 F.3d 1261, 1266 (9th Cir. 2010).

A. Rule 23(a) Prerequisites

1. Numerosity

A class must be "so numerous that joinder of all members is impracticable." Fed. R. Civ. P. 23(a)(1). This requires the Court to consider "specific facts of each case and imposes no absolute limitations." EEOC, 446 U.S. at 330. Although there is no specific numerical threshold, joining more than one hundred plaintiffs is impracticable. See Immigrant Assistance Project of Los Angeles Cnt. Fed'n of Labor v. INS, 306 F.3d 842, 869 (9th Cir. 2002) ("find[ing] the numerosity requirement . . . satisfied solely on the basis of the number of ascertained class members . . . and listing thirteen cases in which courts certified classes with fewer than 100 members").

2. Commonality

Rule 23(a) requires "questions of law or fact common to the class." Fed. R. Civ. P. 23(a)(2). The commonality requirement has been construed permissively; not all questions of law and fact need to be common. Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998). "However, it is insufficient to merely allege any common question." Ellis v. Costco Wholesale Corp., 657 F.3d 970, 981 (9th Cir. 2011). Commonality must be shown by a "common contention" that is "of such a nature that it is capable of classwide resolution-which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke." Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011).

3. Typicality

The typicality requirement demands the "claims or defenses of the representative parties are 3 typical of the claims or defenses of the class." Fed. R. Civ. P. 23(a)(3). A claim or defense is not 4 required to be identical, but rather "reasonably co-extensive" with those of the absent class members. 5

Hanlon, 150 F.3d at 1020. "The test of typicality is whether other members have the same or similar 6 injury, whether the action is based on conduct which is not unique to the named plaintiffs, and whether 7 other class members have been injured by the same course of conduct." Hanon v. Dataproducts 8 Corp., 976 F.2d 497, 508 (9th Cir. 1992) (internal quotation marks and citation omitted); see also 9 Kayes v. Pac. Lumber Co., 51 F.3d 1449, 1463 (9th Cir. 1995) (typicality is satisfied when named plaintiffs have the same claims as other members of the class and are not subject to unique defenses).

4. Fair and Adequate Representation

Absentee class members must be adequately represented for judgment to be binding upon them. Hansberry v. Lee, 311 U.S. 32, 42-43 (1940). Accordingly, this prerequisite is satisfied if the "representative parties will fairly and adequately protect the interests of the class." Fed. R. Civ. P. 23(a)(4). "[R]esolution of this issue requires that two questions be addressed: (a) do the named plaintiffs and their counsel have any conflicts of interest with other class members and (b) will the named plaintiffs and their counsel prosecute the action vigorously on behalf of the class?" In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454, 462 (9th Cir. 2000) (citing Hanlon, 150 F.3d at 1020).

B. Rule 23(b) Certification

If an action meets the prerequisites of Rule 23(a), the party seeking class certification must show the action is appropriate under Rule 23(b). Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614 (1997). Under Rule 23(b)(1), a class is maintainable if there is a risk of inconsistent or varying adjudications from "prosecuting separate actions by or against individual class members." Id. In addition, a class may be certified if "adjudications with respect to individual class members . . . would be dispositive of the interests of other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests." Fed. R. Civ. P. 23(b)(1)(B).

A class is maintainable under Rule 23(b)(2) if "the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate responding the class as a whole." Id. The Supreme 2 Court explained, "Rule 23(b)(2) applies only when a single injunction or declaratory judgment would 3 provide relief to each member of the class. . . [I]t does not authorize class certification when each 4 member would be entitled to an individualized award of monetary damages." Wal-Mart Stores, 131 S. 5 Ct. at 2557. 6

Class certification under Rule 23(b)(3) is an "adventuresome innovation," and allows for class 7 certification in cases "in which class-action treatment is not clearly called for as it is in Rule 23(b)(1) 8 and (b)(2) situations." Amchem Prods., 521 U.S. at 615. Thus, a class is maintainable under Rule 9 23(b)(3) where "questions of law or fact common to the members of the class predominate over any questions affecting only individual members," and where "a class action is superior to other available methods for fair and efficient adjudication of the controversy." Fed. R. Civ. P. 23(b)(3). Where the issues of a case "require the separate adjudication of each class member's individual claim or defense, a Rule 23(b)(3) action would be inappropriate." Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1189 (9th Cir. 2001). Consequently, the Court must examine "whether the proposed classes are sufficiently cohesive to warrant adjudication by representation." Amchem Prods., 521 U.S. at 623.

C. Burden of Proof and Evidentiary Submissions

Parties seeking class certification bear the burden of demonstrating that each element of Rule 23 is satisfied, and "must affirmatively demonstrate . . . compliance with the Rule." Wal-Mart Stores, 131 S. Ct. at 2551; Doninger v. Pacific Northwest Bell, Inc., 563 F.2d 1304, 1308 (9th Cir. 1977). The Court must conduct a "rigorous analysis," which may require the Court "to probe behind the pleadings before coming to rest on the certification question." Wal-Mart Stores, 131 S. Ct. at 2551 (quoting Falcon, 457 U.S. at 160-61). The Court has an affirmative duty to consider the merits of an action "to the extent that they overlap with class certification issues." Ellis, 675 F.3d at 981 ("a district court must consider the merits if they overlap with the Rule 23(a) requirements") (citing Wal-Mart Stores, 131 S. Ct. at 2551-52). As a result, the Court may consider material evidence to determine Rule 23 requirements are satisfied. Blackie v. Barrack, 524 F.2d 891, 901 (9th Cir. 1975).

III. PLAINTIFFS' MOTION FOR CLASS CERTIFICATION

Plaintiffs assert they and proposed class members "are seasonal agricultural workers in the 3 grape industry who have performed pre-harvest and harvest work for Giumarra from November 5, 4 2001 to the present." (Doc. 46 at 13). Plaintiffs contend employees who were paid on a piece rate 5 basis were not provided with adequate compensation. (Doc 46 at 13). Plaintiffs contend, "employees 6 paid on a pure or modified piece rate are not properly compensated for overtime, as the piece/bonus 7 portion of their pay is not taken into account in calculating overtime." Id. at 20. Also, Plaintiffs 8 argue, "since employees are paid for units produced, unless they are separately compensated at an 9 hourly rate of no less than the minimum wage for the time they spend taking rest breaks, any rest break they take is unpaid or underpaid." Id. at 25 (citing Armenta v. Osmose, Inc., 135 Cal.App.4th 314, 316-18 (2005)).

In addition, Plaintiffs assert Giumarra required workers to perform off-the-clock, uncompensated work before and after their shifts. (Doc. 46 at 10, 14-17). Plaintiffs contend harvest workers were required "to arrive before their shift to set-up materials and equipment and participate in mandatory work meetings called ‗school' or ‗escuela.'" Id. at 10. Daily preparation tasks took "between 15 and 30 minutes or longer" and included "setting up tables and arranging trays, pampers (box liners), bags, stickers and boxes." Id. at 14-15. Likewise, Plaintiffs allege pre-harvest workers were required to report to work "to attend school before the fixed start time." Id. at 19. Plaintiffs contend harvest workers performed uncompensated post-shift clean-up for "five to twenty minutes" in the field, which was "followed by washing of trays (or ‗bandejas') at home." Id. at 10, 16.

Plaintiffs allege Giumarra fieldworkers were "required to buy their own tools, including picking clippers/scissors, pruning shears, clipper sheaths, gloves, goggles, and various other items that are necessary to perform harvest work." (Doc. 46 at 18). Plaintiffs assert Giumarra "provided limited amounts of some of these tools, such as picking clippers or gloves," but contend "these items regularly break or wear out and are not replaced by Defendant, requiring Class members to purchase additional tools every season." Id.

Finally, Plaintiffs contend Defendant utilized unlawful meal break policies. According to Plaintiffs, "Prior to 2006, Giumarra scheduled all fieldworker meal breaks for 12:00 p.m. regardless of whether such a break complied with California's requirement that employees be provided a meal 2 within 5 hours of starting their shift." (Doc. 46 at 20). In addition, Plaintiffs assert Giumarra required 3 employees in their cold-storage department to sign an on-duty meal break agreement, which Plaintiffs 4 argue was invalid. Id. at 11, 27. 5

A. Proposed Classes

Based upon these factual allegations, Plaintiffs move to certify classes of table grape workers 7 from Giumarra Vineyards, including "all employees whose claims accrued during the three-year 8 limitations period for filing statutory claims under California law." (Doc. 46 at 7, n.1). Specifically, 9 Plaintiffs identified the following classes:

The Unpaid Rest Break Class: All fieldworkers employed by Giumarra who were paid a pure piece rate at any time between 11/9/2001 to the present.

The Late Meal Break Class: All fieldworkers employed by Giumarra from 11/9/2001 to the present.

The Piece-Rate Overtime Class: All fieldworkers employed by Giumarra who were paid a piece-rate from 11/9/2001 to the present.

The Off-the-Clock Class: All fieldworkers employed by Giumarra from 11/9/2001 to the present.

The Tool Class: All fieldworkers employed by Giumarra from 11/9/2001 to the present. The On-Duty Meal Break Class: All fieldworkers employed by Giumarra from 11/9/2001 to the present to work in cold storage.

(Doc. 46 at 7-11). Plaintiffs contend the requirements of Rule 23(a) and (b) are satisfied for each class of fieldworkers. Id. at 22.

B. Rule 23(a) Requirements

1. Numerosity

Plaintiffs assert an "[a]nalysis of Giumarra'[s] records evidences that there are nearly 10,698 potential class members." (Doc. 46 at 22). Also, Plaintiffs assert that each of the classes proposed "contains hundreds or thousands of Class Members, but mostly the classes are in the thousands." Id. at 23. Thus, Plaintiffs assert the numerosity requirement is satisfied because joinder of all class members is impracticable. Id.

2. Commonality

According to Plaintiffs, "The common-questions requirement of Rule 23(a)(2) is readily 3 satisfied in this case, as there are common questions of both fact and law." (Doc. 46 at 24). As 4 examples, Plaintiffs identify the following common questions: 5

(1) whether the time employees spent performing required or knowingly permitted pre and post-shift activities is compensable; (2) whether Giumarra's practice of not recording pre and post-shift work violates AWPA; [(3)] whether Giumarra bears the burden of proving that Class members did not perform pre and post-shift work because Giumarra failed to record such time; [(4)] whether Giumarra's piece-rate policy failed to provide properly paid rest breaks; [(5)] whether Giumarra's piece rate policy failed to provide piece-rate overtime pay; and [(6)] whether employees should be reimbursed for Giumarra's failure to provide required tools that Class members were forced to purchase because they were necessary for the job.

(Doc. 46 at 24). Plaintiffs note this Court determined similar questions satisfied the commonality requirement in Arrendondo v. Delano Farms Co., 2011 U.S. Dist. LEXIS 44134 (E.D. Cal. 2011), and such questions "have been found . . . common and predominating in the context of other AWPA class actions." Id. at 24.

3. Typicality

Plaintiffs contend the typicality requirement is satisfied because "Plaintiffs and the putative class members were all subject to the same practices of the Defendant." (Doc. 46 at 32). For example, Plaintiffs assert their claims for pre-shift work are typical of the class members because "Plaintiffs and the proposed class were required to arrive at the worksite before the fixed start-time to perform preparation tasks and/or attend school," which was not recorded by foremen or compensated by Defendant. Id. Likewise, Plaintiffs assert their "claims for failure to reimburse for tools are typical" because "Guimarra has a uniform policy of not reimbursing employees for tools that are necessary for the completion of essential job duties." Id. at 33. Further, Plaintiffs contend the meal breaks policy "applied to all fieldworkers, including class representatives." Id.

4. Adequacy of Representation

Plaintiffs contend they "have each declared that they wish to serve as class representatives and have no conflicts with the putative class members concerning the issues which are the subject of the litigation." (Doc. 46 at 34). Plaintiffs assert they "cooperatively participated in the litigation, 2 answering discovery and appearing for deposition." Id. Plaintiffs argue they will "vigorously" pursue 3 damages for the class members, and "Giumarra [has] no basis for asserting any unique defenses 4 against the named Plaintiffs that Defendant could not assert against any other class member." Id. 5

In addition, Plaintiffs argue, "Counsel representing Plaintiffs are competent and experienced in 6 litigating large employment Class Actions, and in litigating Class Actions involving agricultural 7 employees." (Doc. 46 at 34). Plaintiffs allege the proposed counsel "have experience in prosecuting 8 wage and hour class actions, employment litigation generally, and class actions specifically dealing 9 with the identical issues presented here." Id. Therefore, Plaintiffs contend the class representatives and proposed class counsel will adequately represent the classes. Id.

C. Rule 23(b) Requirements

Plaintiffs contend this class action meets the requirements of Rule 23(b)(2) and Rule 23(b)(3). (Doc. 46 at 35). First, Plaintiffs assert certification under Rule 23(b)(2) is proper because they requested injunctive relief in the complaint, and Plaintiffs "will request that Defendant be required to pay its employees in compliance with California Labor Code and Wage Orders." Id. at 36. Second, Plaintiffs argue certification under Rule 23(b)(3) is proper because three common questions predominate over individual questions in this action: "(1) whether Giumarra failed to properly compensate Class members for and record all hours worked; (2) whether Giumarra failed to reimburse employees for necessary tools; and (3) whether Piece-Rate Class members were paid properly for their working overtime and rest periods." Id. at 37. In addition, Plaintiffs class members are seasonal agricultural workers who would not likely have an interest in pursuing their own action given "their limited economic resources, lack of English language proficiency, and the severe difficulty of finding experienced counsel in rural areas." Id. at 38. Therefore Plaintiffs conclude class treatment is superior to other available methods of litigation. Id. at 38-39.

IV. DEFENDANT'S OPPOSITION TO CLASS CERTIFICATION

Defendant opposes certification for each of the proposed classes. According to Defendant, "Plaintiffs have no evidence sufficient to prove any violations on a class-wide basis as to any of their proposed classes. Individual issues clearly predominate over any class issues." (Doc. 77 at 4).

Further, Defendant asserts two of the proposed classes "rest upon theories that were not advanced in 2 the consolidated class action complaint," and plaintiffs lack standing to bring certain claims. Id. 3

Defendant concludes: "Plaintiffs cannot satisfy the requirements for class certification." Id. at 14. 4

A. Unpaid Rest Break

According to Defendant, "This claim is not contained in plaintiffs' complaint and certification 6 should be denied on this basis alone." (Doc. 77 at 22) (citing Brown v. American Airlines, Inc., 2011 7 U.S. Dist. LEXIS 99495, at *36 (C.D. Cal. Aug. 29, 2011). Even if the claim was properly pleaded, 8 Defendant asserts Plaintiffs have not demonstrated requirements of Rule 23(a) are satisfied, because 9 they "have not identified one piece rate worker who took a rest break and was not paid as they now claim he or she should have been," and there is no commonality of the claims. Id. at 25, 27. In addition, Defendant asserts Rule 23(b)(3) requirements cannot be satisfied because "[t]here is no written record as to whether rest periods are taken and, if so, when they were taken and for what length of time." Id. at 28. Therefore, Defendant contends individual inquiries would be required, and class certification is not a superior method of adjudication. Id.

B. Late Meal Class

Defendant contends this class fails to satisfy the commonality and typicality requirements of Rule 23(a). (Doc. 77 at 30). Defendant argues the company practice of scheduling meal breaks at noon fails to establish the commonality. Id. (citing In re Wells Fargo Home Mortg., 571 F.3d 953, 959 (9th Cir. 2009). According to Defendant, the practice "was applied by superintendents and foremen on a flexible basis," and the time meal breaks occurred was "determined by when the ‗lunch trucks' arrive." Id. at 31. Further, Defendant notes there is no evidence as to the time employees took a meal break, and "an independent factual inquiry would be needed with respect to how individual foremen scheduled employees' meal breaks every day and at each location." Id. at 35-36. As a result, Defendant concludes the class is not certifiable under Rule 23(b).

C. Off-the-Clock Class

Defendant contends there no records that "demonstrate the occurrence or extent of any off-the-clock-work." (Doc. 77 at 40). Rather, Defendant notes "[t]he sole evidence offered to support this claim [are] the statements of 77 workers selected by plaintiffs on a non-random basis." Id. In support of its opposition to class certification, Defendant presents declarations contradicting the claims of 2 Plaintiffs' declarants. Id. at 41. Further, Defendant contends the evidence before the Court 3 demonstrates there is no commonality for the following reasons: 4

a. There is no evidence of any Company-wide illegal policies or Labor Code violations;

b. There are no written records of any off-the-clock work;

c. The only evidence supporting off-the-clock claims is the undocumented and wildly inconsistent testimony of a small group of putative class members representing less than one percent of the purported class; and

d. Their testimony is contradicted by the properly representative testimony of five times as many class members.

Id. at 43. Given "[t]he substantial testimonial evidence" and "[c]onflicting anecdotal evidence," Defendant asserts Plaintiffs cannot satisfy the commonality and typicality requirements of Rule 23(a). Id. at 44, 47. However, even if the Court found Plaintiffs satisfied Rule 23(a), Defendant asserts "individualized inquiries would be necessary to determine in each putative class member's case whether the worker did any off-the-clock labor, and if so, when, how much, and why." Id. at 41. These individualized inquiries would defeat a finding that the class satisfies the Rule 23(b)(3) requirement of predominance. Id. at 47-48.

D. Piece-Rate Overtime Class

According to Defendant, this class cannot be certified because Plaintiffs have not demonstrated the numerosity, commonality, or typicality requirements of Rule 23(a) are satisfied. (Doc. 77 at 49-50). Defendant observes that no plaintiff "make[s] any claim for unpaid overtime," and only five of the putative class members assert they worked overtime without compensation. Id. at 49. Thus, Defendant argues Plaintiffs "clearly failed to satisfy the numerosity requirement." Id. at 50. Because few employees who claimed to work uncompensated overtime, Defendant asserts the "plaintiffs cannot satisfy the commonality or typicality requirements." Id.

With regard to Rule 23(b)(3) requirements, Defendant contends individual inquiries would be required to determine "whether individual piece-rate employees worked overtime, when and how much." (Doc. 77 at 51). Also, Defendant contends a class action would not be superior because 2 "there is no way under plaintiffs' theory to determine how much, if anything is owed under [their] 3 theory to any of the piece-rate employees." Id. (emphasis omitted). 4

E. Tool Class

Defendant asserts "Giumarra has spent over $300,000 during the class period on tools for 6 employees," and the company did not have a "general policy or practice . . . of not providing required 7 tools." (Doc. 77 at 52). Defendant asserts its declarants "uniformly reject the claim that employees 8 were required to purchase clippers or to reimburse the company for broken tools." Id. Therefore, 9 Defendant argues the commonality and typically requirements cannot be met. Id.

Also, Defendant argues that "whether an employer was required to reimburse employees for necessary expenses involves an individualized inquiry." (Doc. 77 at 52-53) (citing Drake v. Morgan Stanley & Co., Inc., 2010 U.S. Dist. LEXIS 472627, at *23 (C.D. Cal. Apr. 30, 2010)). Defendant asserts: "The Ninth Circuit has denied certifying claims under Labor Code ยง 2802 because the difficulty of establishing damages defeats predominance." Id. (citing Harris v. Vector Marketing Corp., 753 F. Supp. 2d 996 (N.D. Cal. 2010)). ...


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