ORDER ADOPTING FINDINGS AND RECOMMENDATIONS
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 is connected to one brought in 2004 in state court. That 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 made a first motion for class certification which El Rancho opposed. In the motion, Plaintiffs sought to certify four classes comprising of all El Rancho workers regardless of which FLC they worked for: an unpaid rest break class, untimely rest and meal break class, off the clock work class, and purchasing tools class. Magistrate Judge Thurston issued a findings and recommendation ("F&R") to deny Plaintiffs' motion. Doc. 52. After review of the filed objections, the F&R was adopted in full. Doc. 56. Plaintiffs 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. Plaintiffs sought 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 Garza at El Rancho facilities. El Rancho opposed both motions and filed a motion for summary judgment against the named Plaintiffs. Docs. 81 and 82. The motion for reconsideration was granted in part and denied in part while all other motions were denied; Plaintiffs were granted leave to file a second motion for class certification limited the issue of untimely meal periods. Doc. 95. Plaintiffs made the appropriate motion. Doc. 96. Judge Thurston issued an F&R to grant the motion. Doc. 106. El Rancho has filed objections; Plaintiffs seek to have the F&R adopted in full. Docs 107 and 108.
"A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. §636(b)(1).
Judge Thurston concluded that the Fed. Rule Civ. Proc 23(a) and Fed. Rule Civ. Proc. 23(b)(3) factors are satisfied for the class defined as "All employees of Garza Contracting, Inc. who worked at El Rancho Farms facilities from 11/9/2001, through 12/31/2008 and who were provided a 12:00 noon meal break on shifts starting before 7:00 a.m." El Rancho makes two objections to the F&R. First, El Rancho argues the proposed class should not cover the time period between April 20, 2006 and December 31, 2008 as the evidence shows a lack of commonality and predominance of individual questions over common ones. Doc. 107, El Rancho Objection, 2:12-14. Second, El Rancho argues the piece-rate workers were not subject to the same meal period schedule as hourly workers, again showing a lack of commonality and predominance of individual questions over common ones for piece-rate workers. Doc. 107, El Rancho Objection, 2:19-24. Those two limited issues are examined de novo.
Under the former work schedule, El Rancho workers would start their shifts around 6:00 AM and not stop for a meal until 12:00 PM, noon. At an unspecified date, El Rancho changed its work schedule to have a meal break at 9:00 AM instead. Judge Thurston found that this change took place at the end of 2008. Doc. 106, F&R, 9:5-22. Thus, the F&R defined the class as including workers through December 31, 2008.
First, El Rancho asserts that the change took place in 2006. In her F&R, Judge Thurston referenced the depositions of John Kovacevich and Lynn Kirkorian, El Rancho's persons most knowledgeable on the working schedules, who stated the change took place "late 2008, early 2009" (Doc. 107, Part 1, Kovacevich Deposition, 22:18) or "I believe at 2007" (Doc. 35, Part 3, Kirkorian Deposition, 15:18). In this motion, El Rancho points out that in other parts of the deposition, Kovacevich says the change happened earlier: "It could have been slightly before [July 7, 2008]" and "Q. So it's your understanding that the new policy went into effect probably in 2008. Is that correct? A. Or possibly as early as 2006, if [certain records reviewed were] in fact an El Rancho crew." Doc. 107, Part 1, Kovacevich Deposition, 40:22-23 and 44:16-20. In total, Kovacevich's statements shows confusion. Overall, neither individual gives the impression that he/she knew precisely when the change took place.
El Rancho asserts that the time records support their contention that the change happened in 2006. There is only one record from 2006 and 9 records from 2007 (mostly between November 2-9, 2007). Eight show a meal at 9:00 AM or 10:00 AM with one showing a meal at 12:00 and one showing no meal period at all. Doc. 35, Part 10, at 35-42; Doc. 100, Part 4, at 5-6. However, there are approximately 135 time records from throughout 2008. The vast majority show either a 12:00 PM meal, an insufficiently long meal period, or incomplete documentation. See Doc. 35, Part 12, at 2-30; Doc. 35, Part 13, at 2-30; Doc. 96, Part 3, at 2-81; Doc. 100, Part 5, at 2-64. Of these time records, only 20 affirmatively show an appropriate 9:00, 9:30, or 10:00 AM meal. Doc. 35, Part 12, at 8,12, and 21; Doc. 35, Part 13, at 21; Doc. 100, Part 5, at 18, 25, 27, 46-47, 52-59, and 63-64. To demonstrate commonality, courts "determine if plaintiffs have offered 'significant proof' that there was a common policy or practice concerning an issue central to the plaintiffs' claims 'that could affect the class as a whole.'" Dominic Corea LP v. ILD Telechommunications, Inc., 2013 WL 821193, *3 (C.D. Cal. 2013), quoting Ellis v. Costco Wholesale Corp., 657 F.3d 970, 983 (9th Cir. 2011). In this case, there is significant proof to show that the change in work schedule did not take place until the end of 2008.
Second, El Rancho asserts that there was no company-wide policy on work schedules which would make individual questions predominate over common questions for the more recent workers. This assertion is undermined by the deposition of Kovacevich which consistently ...