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Josie Faulkinbury et al v. Boyd & Associates

May 10, 2013

JOSIE FAULKINBURY ET AL., PLAINTIFFS AND APPELLANTS,
v.
BOYD & ASSOCIATES, INC., DEFENDANT AND RESPONDENT.



Appeal from an order of the Superior Court of Orange County, Gail Andrea Andler, Judge. (Super. Ct. No. 05CC00107)

The opinion of the court was delivered by: Fybel, J.

CERTIFIED FOR PUBLICATION

OPINION

Reversed and remanded with directions.

INTRODUCTION

Plaintiffs Josie Faulkinbury and William Levene (together, Plaintiffs), on behalf of themselves and all others similarly situated, appealed from the order denying their motion for class certification. They sought to represent and certify a class of about 4,000 current and former employees of defendant Boyd & Associates, Inc. (Boyd), which provides security guard services throughout Southern California. Plaintiffs and the putative class members work or worked for Boyd as security guards. They asserted Boyd denied off-duty meal breaks and off-duty rest breaks, and failed to include certain reimbursements and an annual bonus payment in calculating the hourly rate of overtime pay. Plaintiffs proposed three subclasses, which we will refer to as the Meal Break Class, the Rest Break Class, and the Overtime Class.

We issued an opinion affirming the order denying certification of the Meal Break Class and the Rest Break Class, and reversing the order denying certification of the Overtime Class. (Faulkinbury v. Boyd & Associates, Inc. (2010) 185 Cal.App.4th 1363, review granted Oct. 13, 2010, S184995 (Faulkinbury I).) We issued our opinion before the California Supreme Court issued its opinion in Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004 (Brinker). The California Supreme Court granted review of Faulkinbury I, decided Brinker, and then transferred this case "with directions to vacate [our] decision and to reconsider the cause in light of Brinker[, supra,] 53 Cal.4th 1004." Following transfer, the parties submitted supplemental briefs on the effect of Brinker on this case, and we again entertained oral argument.

As the Supreme Court directed, we have reconsidered the cause in light of Brinker, reexamined the record, and analyzed the issues anew. We now conclude, in light of Brinker, that the trial court erred by denying class certification of all three subclasses and therefore reverse and remand with directions to certify all three subclasses.

FACTS AND PROCEDURAL HISTORY

I.

Facts

Boyd is a private security guard company providing security services throughout Southern California. Boyd's clients include gated residential communities, hospitals, commercial buildings, and retail stores.

Faulkinbury was employed by Boyd as a security guard from October 2003 to November 2004, and Levene was employed by Boyd as a security guard from January 2003 to February 2005. In declarations, Plaintiffs asserted that, when hired by Boyd, each had to sign an agreement to take on-duty meal periods and that, while employed by Boyd, neither ever took an uninterrupted, off-duty meal break. They also asserted that, while employed by Boyd, they were instructed not to leave their posts and never took any off-duty rest breaks. Levene added that he was told the on-duty meal break applied to all posts at which he worked.

In support of the motion for class certification, Plaintiffs submitted declarations from 46 potential class members. Many declarations state the employee was not given a 30-minute, uninterrupted, off-duty meal period. Some employees did not recall signing an agreement regarding on-duty meal breaks. Some acknowledged signing the agreement; others declared they "w[ere] instructed" to sign the agreement.

II.

Procedural History

A. The Complaint

Plaintiffs brought this action on behalf of themselves and about 4,000 current and former employees of Boyd, who had been employed in the position of security guard, post commander, or post supervisor, or a similar position at any time during the class period. The class period was defined as the period beginning four years preceding the filing of the original complaint and ending on the date a class is certified. The third amended complaint, the operative pleading, asserted causes of action under the Labor Code and Business and Professions Code section 17200 et seq. for alleged failure to pay wages and non-discretionary bonus wages, and failure to provide meal and rest breaks.

B. Class Certification Motion

Plaintiffs moved for class certification in October 2008. After the trial court denied the motion, Plaintiffs brought a second motion for class certification. They sought certification of a class of all "current and former security guards employed by Boyd at any time during a four-year statute of limitations period consisting of approximately 4,000 putative class members." Plaintiffs proposed these three subclasses:

"(1) All current and former Security Guards, Security Guard Supervisors, Post Commanders, Rovers and other similar hourly paid job positions, who were required by Boyd to take an 'on-duty' meal break and therefore were not provided mandated, uninterrupted meal periods and who worked for Boyd in California at any time between March 19, 2003 and the date class certification is granted. . . . ([Meal Break Class]).

"(2) All current and former Security Guards, Security Guard Supervisors, Post Commanders, Rovers and other similar hourly paid job positions, who worked for Boyd at any time between March 19, 2003 and the date class certification is granted . . . who were not provided with mandated rest periods. ('Rest Break Class')

"(3) All current and former Security Guards, Security Guard Supervisors, Post Commanders, Rovers and other similar hourly paid job positions, who worked for Boyd at any time from May 13, 2001 and the date class certification is granted . . . and were not paid overtime wages to reflect annual bonus payments and allowances. . . . ([Overtime Class])."

In February 2009, the trial court issued an order stating: "The Motion for Class Certification is denied. Moving party has not met its burden of establishing the requisites for class treatment. It is not clear, for the reasons stated by defendant, that the proposed classes are ascertainable. Additionally, it appears that individual questions of fact predominate, as set forth by defendant. These individual ...


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