UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
July 5, 2012
MARGARITA ROSALES AND ANGELICA ROSALES, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY
EL RANCHO FARMS AND DOES 1 TO 20,
ORDER RE: MOTION FOR RECONSIDERATION
(Docs. 60, 66, 81, and 82)
Defendant El Rancho Farms ("El Rancho") is a commercial table grape grower based in Kern County. El Rancho does not directly employ workers; instead, El Rancho works with various farm labor contractors ("FLCs"), who provide workers. Plaintiffs Margarita Rosales and Angelica Rosales ("Plaintiffs") worked in El Rancho's facilities through 2005 and 2004 respectively. Plaintiffs were directly employed by a FLC known as Garza Contracting Inc. ("Garza"). Garza is not a defendant in this case.
This case had its genesis in 2004 in state court. The case was initially brought by third party workers as a potential class action against third party FLCs and other table grape growers. On September 12, 2005, Angelica Rosales and El Rancho were added as plaintiff and defendant. The case was removed to federal court in 2005 under federal question jurisdiction. Meanwhile, a parallel potential class action case against El Rancho and the other table grape growers was filed in federal court on November 9, 2005. After various motions, the two cases were consolidated and severed. The end result was that in each case, the defendant was one table grape grower and the plaintiffs are current or former workers seeking to represent a class action.
The operative complaint in this case alleges violations of the federal Migrant and Seasonal Agricultural Workers Protection Act; failure to pay wages; failure to pay reporting time wages; failure to provide rest and meal periods; failure to pay wages of terminated or resigned employees; knowing and intentional failure to comply with itemized employee wage statement provisions; penalties under Cal. Labor Code § 2699, et seq; breach of contract; and violation of the unfair competition law. Doc. 1. Generally, Plaintiffs allege El Rancho has failed to comply with a variety of California labor laws, chiefly failing to pay minimum wage, forcing employees off the clock, forcing employees to purchase their own tools, failing to provide adequate meal and rest periods, failing to provide adequate wage statements, and failing to keep adequate time records. Plaintiffs seek to represent four classes comprising of El Rancho workers covering 2000 to the present. Notably, the complaint indicates that Plaintiffs seek to represent all workers of El Rancho who have suffered labor violations regardless of which FLC they worked for.
Plaintiffs made a motion for class certification on September, 9, 2011, which El Rancho opposed. In the motion, Plaintiffs sought to certify four classes: an unpaid rest break class, untimely rest and meal break class, off the clock work class, and purchasing tools class. These proposed classes covered all fieldworkers employed by El Rancho from March 5, 2000 to the present. Doc. 33, 1:17-2:2. The motion made no distinction between employees of the various FLCs. Magistrate Judge Thurston issued a findings and recommendation denying Plaintiffs' motion ("F&R"). Doc. 52. In part Judge Thurston examined whether the workers were actually employed by El Rancho. There is no dispute that the potential class members were directly employed by FLCs. Plaintiffs argued that El Rancho was a joint employer. Judge Thurston held a hearing on the matter on December 7, 2011. Going through the relevant factors, Judge Thurston concluded that El Rancho was not a joint employer for the purposes of the motion only, recognizing that a decision on the merits on the question of joint employer status was not properly part of a motion for class certification. Doc. 52, 27:19-25. Turning to the Fed. Rule Civ. Proc. 23 requirements, Judge Thurston found that Plaintiffs failed to show commonality (and consequently typicality) in the four proposed classes. Plaintiffs filed objections to the F&R on December 27, 2011. After review of the filed objections, the F&R was adopted in full. Doc. 56.
Plaintiffs have made a motion for reconsideration based on new evidence and a motion to certify the issue of class certification for interlocutory appeal. Docs. 60 and 66. The motion for reconsideration seeks to establish that Garza and El Rancho are joint employers. Based on such a finding, Plaintiffs seek to certify three narrowed classes (an untimely rest and meal break class, off the clock work class, and purchasing tools class) encompassing only those workers jointly employed by El Rancho and Garza. Doc. 63, Part 1, 2:4-8. El Rancho opposes both motions and objects to the change in proposed class definition. Additionally, El Rancho filed a motion for summary judgment against the named Defendants. Docs. 81 and 82.
II. Legal Standards
"Reconsideration is appropriate if the district court (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law. There may also be other, highly unusual, circumstances warranting reconsideration." School Dist. No. 1J Multnomah County v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993), citations omitted.
A. New Evidence
Plaintiffs assert "at its recent deposition Garza confirmed that the material joint employer terms have been in effect throughout the class period. Prior to this deposition, the Agreement had not been authenticated, nor had Defendant El Rancho Farms or Garza acknowledged the existence of the agreement or the fact they had intentionally and voluntarily entered into a joint employer relationship." Doc. 63, Part 1, 2:15-19. The agreement between El Rancho and Garza was executed on June 1, 2005, and specifically states that "It is the intention of the parties, pursuant to the Fair Labor Standards Act and Migrant and Seasonal Agricultural Worker Protection Act and for purposes of workers compensation, to create a 'joint employer" relationship." Doc. 61, Part 1, Ex. 1. The deposition of Garza's person most knowledgable took place on February 7, 2012. Doc. 61, 1:14-16. The F&R had concluded that El Rancho "was not a 'joint employer' as defined by the FLSA and the AWPA nor was it a 'joint employer' as that phrase is used by Plaintiffs in their proposed class definitions" but noted that "whether El Rancho was a joint employer, should not be the sole reason for denying the motion for class certification." Doc. 52, 27:19-24. For the three proposed classes Plaintiffs seek reconsideration on, the F&R analyzed the evidence apart from the issue of joint employment and found that Plaintiffs failed to meet the Rule 23 standard. Based on the new evidence, Plaintiffs assert "these classes should be certified because the lack of commonality this Court found due to the various FLC's used by El Rancho and the lack of joint employer relationship between El Ranch and Garza disappears." Doc. 63, Part 1, 2:9-11.
El Rancho argues that there is no new evidence as the agreement referenced by Plaintiffs was produced by El Rancho on June 23, 2011, well before Plaintiffs filed their motion for class certification on September 9, 2011. Doc. 70, 2:3-5. Further, Plaintiffs took the deposition of El Rancho's person most knowledgeable on September 7, 2011, but did not inquire about the referenced agreement at that time. Doc. 70, 2:13-18. Plaintiffs do not address this contention, stating that "further evidence supporting the existence of joint employer relationship between El Rancho and Garza has recently been confirmed." Doc. 72, 2:13-14. "[T]o support a motion for reconsideration...based upon newly discovered evidence, the movant is obliged to show not only that this evidence was newly discovered or unknown to it until after the hearing, but also that it could not with reasonable diligence have discovered and produced such evidence at the hearing." Frederick S. Wyle Professional Corp. v. Texaco, Inc., 764 F.2d 604, 609 (9th Cir. 1985), citations omitted. Plaintiffs reference to authentication of the agreement between El Rancho and Garza does not qualify as new evidence. Plaintiffs possessed a copy of the agreement in June 2011, before filing the motion for class certification. That alone is enough to disqualify the evidence as new. Further, authentication could have been accomplished before December 2011.
Reconsideration based on new evidence is not warranted. For the purposes of class certification, Plaintiffs have not established that El Rancho and Garza are joint employers.
B. Other Evidence
Plaintiffs also argue "Modification of the Order is further justified by the need to address critical evidence in the record that has been overlooked, likely as a result of the joint employer analysis." Doc. 63, Part 1, 2:23-24. The court interprets Plaintiffs argument for reconsideration as falling under clear error or manifest injustice. As previously stated, "the analysis regarding joint employment was not determinative." Doc. 56, 12:1-2. Judge Thurston's analysis went on to look at the evidence for each of the four proposed classes and concluded that there was a lack of commonality. Putting aside the issue of joint employment, Plaintiffs now seek to demonstrate commonality among only those workers who were direct employees of Garza. As Judge Thurston pointed out in the F&R, the various FLCs had different work practices. See e.g., Doc. 52, 32:21-33:19. Narrowing the classes might show that all workers for Garza were subject to the same working conditions.
Taking a look at the evidence with the narrower potential classes in mind, the court finds that reconsideration should be granted with regards to meal schedules. The court notes that while the former broader proposed class concerned both meal and rest period violations, Plaintiffs have abandoned the allegations of rest break violations to focus on the meal schedule. Plaintiffs seek to certify an untimely meal period class as "The Untimely Meal Break Class: All fieldworkers jointly employed by El Rancho and Garza Contracting, Inc. from 3/5/2000 through 2008 who were scheduled for a 6:30 a.m. or earlier start time and a 12 noon meal break." Doc. 63, Part 1, 2:4-5. Applicable California law requires a 30 minute meal period to be authorized and permitted after 5 hours of work. IWC Wage Order 14-2001, ¶11, 8 Cal. Code Reg. § 11140(11). Plaintiffs provided evidence that Garza employees regularly worked for six hours before taking a meal break. In the F&R, Judge Thurston pointed out El Rancho "provides declarations from putative class members [who work/ed for Garza], 82 of which indicate they have never 'worked more than 5 hours without receiving a 30-minute meal break.'" Doc. 52, 33:20-22. These declarations take the form of a preprinted questionnaire. The declarants are asked, "8. Have you ever worked more than 5 hours without receiving a 30-minute meal break?" The declarants answered "no." See e.g., Doc. 35, Part 14, Ex. E-1, 12 of 99; Doc. 35, Parts 14-18, Exs. E-1 through E-5. Based on these declarations and evidence that employees of other FLCs had different meal practices, Judge Thurston found a lack of commonality. Doc. 52, 33:5-34:14. The prior order of this court similarly concluded that there was conflicting evidence as to whether all El Rancho workers had the same rest and meal period schedules. Doc. 56, 13:4-21.
Looking at the filings anew, the evidence Garza had a uniform policy regarding meal periods for El Rancho workers is fairly compelling. El Rancho also provided the declaration of Miguel Nunez and Lila Garcia (who both worked for El Rancho via Garza prior to 2005). These declarations take the form of a preprinted statement with blanks for personal details; they were clearly provided by El Rancho. On these forms, the declarants state "1. The scheduled start time at El Rancho Farms was either 6:00 a.m., or 7:00 a.m., depending on the time of sunrise. During late May to approximately late August, the scheduled start time would be at 6:00 a.m. At all other times during the year, the scheduled time would be 7:00 a.m. .... 8. I was always provided with a 30-minute unpaid meal period when I worked 6 hours or more in a work day. Until 2008, that meal period occurred at 12:00 p.m. Beginning in 2008 and throughout the rest of my employment, that meal period was taken every day at 9:00 a.m." Doc. 40, Part 14, Ex. E-1, 2-3 and 6-7 of 99. These forms are strongly indicative of a uniform work/meal schedule of Garza employees working at El Rancho facilities prior to 2008. Irma Garza, a shareholder of Garza, provides a declaration stating, "14. The work day for Garza Contracting employees at El Rancho Farms typically commences between 6:00 a.m. and 7:00 a.m., depending on visibility and the time of sunrise....16. Between 2000 and 2006, Garza Contracting employees at El Rancho...took a 30-minute unpaid meal period at 12:00 p.m. (the "Noon Meal Period")." Doc. 40, Part 2, 3:16-25. In briefing for the original motion for class certification, El Rancho confirmed that "Between 2000 and 2006, from approximately May through September of each year, Garza employees' workdays commenced between 6:00 a.m. and 6:45 a.m., and they utilized the Noon Meal Period schedule." Doc. 40, 28:19-21. In a deposition, El Rancho representative, John Kovacevich, confirmed that prior to 2008, the meal break was at 12:00 noon even when the work shift began at 6:00 a.m. during the summer months. Doc. 35, Part 2, Ex. 2, 23:7-25:2. Another El Rancho representative, Lynn Kirkorian, confirmed that a longstanding schedule was for summer work was a 6:00 a.m start with a meal break at 12:00 noon. Doc. 35, Part 3, Ex. 3, 14:23-15:12. Additionally, Plaintiffs have provided over 100 work timesheets submitted by Garza crew foremen/women during 2002-2005 that show a start time of 6:00 a.m. and a meal break at 12:00 noon. Doc. 35, Parts 8-10, Exs. 6A-6C. Collectively, these pieces of evidence convincingly show that Garza employees were subject to a uniform meal period policy.
In the prior order, the court cited to Garcia v. Sun. Pac. Farming Coop., 2008 U.S. Dist LEXIS 111969 (E. D. Cal. May 14, 2008) in concluding that conflicting evidence defeated commonality. In that case, the only evidence of labor violations provided by the plaintiffs were the declarations of individual workers. However, defendant provided numerous counter declarations of individual workers who claimed they were not subject to those labor violations specified by plaintiffs' declarants. The court found defendant's evidence to be "equally compelling" and could not conclude that there was a common practice. Garcia v. Sun. Pac. Farming Coop., 2008 U.S. Dist LEXIS 111969, *27 and *31 (E. D. Cal. May 14, 2008). Crucially, there was no evidence of any policy.
In this case, the weight of the evidence falls definitively in favor of finding a uniform policy which facially violates labor law with respect to meal periods. In addition to the anecdotal evidence of individual workers, Plaintiffs have provided work logs and statements from El Rancho representatives acknowledging the meal schedule complained of. Under these circumstances, Garcia is distinguished. When a common policy can be established, individual variations will not always defeat class certification. Cf. Delagarza v. Tesoro Ref. & Mktg. Co., 2011 U.S. Dist LEXIS 101127, *19-22 (N.D. Cal. September 8, 2011) ("that some workers can leave the premises with permission does not negate Plaintiffs' assertion that there is a general default policy against leaving the premises"). The finding that Garza and El Rancho are not joint employers remains tentatively undisturbed and is more properly the subject of a later summary adjudication motion that would be binding on a certified class; as Judge Thurston noted in her F&R, joint employer status is not dispositive to a motion for class certification.
Reviewing the papers submitted, Plaintiffs have not provided sufficient evidence as to the proposed off the clock work and tool purchasing classes. The evidence of those labor violations are primarily declarations from individual workers which are countered by other declarations. Again, El Rancho has provided 71 declarations who state that they did not work off the clock nor were required to make tool purchases. Doc. 52, 40:11-13 and 42:22-26; Doc. 35, Parts 14-18, Exs. E-1 through E-5. Regarding the cleaning of trays at home (which would constitute off the clock work), Plaintiffs point to the deposition of John Kovacevich. However, the cited part only shows that when Kovacevich was first employed by El Rancho in 2007, Garza told him that they did not allow workers to take trays home to clean them. Doc. 35, Part 2, Ex. 2, 35:2-17. Nothing indicates that this was a newly instituted policy in 2007. Similarly, Plaintiffs cite to the deposition of Irma Garza regarding Garza requiring employees to purchase their own tools. Irma Garza states "Garza Contracting has always supplied its employees with all tools necessary to perform their duties. Garza Contracting field laborers are supplied with pruning shears, picking scissors, glasses, and gloves. Attached as Exhibit 'A' are true and correct copies of transaction histories and receipts showing purchases made by Garza between 2006 and 2011. Garza Contracting does not have records of its tool purchases before 2006." Doc. 40, Part 2, 4:25-5:2. Plaintiffs rely on the lack of receipts as evidence that Garza required all its employees to purchase tools prior to 2006. This is insufficient. Irma Garza affirms that Garza has always supplied its employees with tools. The burden of proof is on the party seeking class certification. Doninger v. Pacific Northwest Bell, Inc., 563 F.2d 1304, 1308 (9th Cir. 1977).
El Rancho objects to Plaintiffs' request to redefine the proposed classes. Doc. 70, 9:23-25. Plaintiffs point out that Fed. Rule Civ. Proc. 23(c)(1)(C) states "An order that grants or denies class certification may be altered or amended before final judgment." This rule provides maximum flexibility. The Ninth Circuit notes that "a district court's order respecting class status is not final or irrevocable, but rather, it is inherently tentative." Officers for Justice v. Civil Service Com., 688 F.2d 615, 633 (9th Cir. 1982). As a court retains inherent authority to narrow a proposed class when ruling on a motion for class certification, Plaintiffs' suggested class redefinition is not improper. In opposition to the motion for reconsideration, El Rancho did not provide a substantive opposition to the narrowed meal period class. Doc. 70. Thus, the court is hesitant to directly certify that class. In order to give El Rancho a fair chance to respond, Plaintiffs will be granted leave to file a second motion for class certification on the limited issue of meal periods.
Plaintiffs' motion for reconsideration is GRANTED in part and DENIED in part. The January 31, 2012 Order adopting the F&R and denying class certification remains. However, Plaintiffs are granted leave to file a second motion for class certification with respect to meal periods of Garza employees who worked at El Rancho facilities that is consistent with the findings of this order. Plaintiffs must file such a motion within twenty (20) days of the filing of this order.
The motions for interlocutory appeal and summary judgment are DENIED without prejudice.
The trial date of September 11, 2012 and all associated dates are VACATED. IT IS SO ORDERED.
CHIEF UNITED STATES DISTRICT JUDGE
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