Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Dalton v. Lee Publications, Inc.

United States District Court, Ninth Circuit

May 20, 2013

YVONNE DALTON, individually and on behalf of all others similarly situated Plaintiffs,


GONZALO P. CURIEL, District Judge.

Before the Court is Defendant Lee Publications, Inc.'s renewed motion to decertify the class. (Dkt. No. 154.) Plaintiffs opposed the motion and Defendants submitted a reply to the opposition papers. (Dkt. Nos. 157, 158, 159 and 161.) A hearing was held on the motion on December 7, 2012. After careful consideration of the parties' arguments and applicable law, the Court hereby GRANTS in part and DENIES in part Defendant's renewed motion to decertify the class.


On August 27, 2008, Plaintiffs filed their first amended complaint which alleged nine causes of action for failure to pay minimum wage, hourly wages and overtime wages (first cause of action); failure to provide meal periods (second cause of action), failure to provide rest breaks (third cause of action); failure to reimburse business expenses (fourth cause of action); unlawful withholding of wages due (fifth cause of action); failure to provide itemized wage statements (sixth cause of action); failure to keep accurate payroll records (seventh cause of action); waiting time penalties (eighth cause of action); and unfair business practices (ninth cause of action). (Dkt. No. 9.)

On March 12, 2010, Defendants filed a motion for partial summary judgment as to Plaintiff Hector Salgado. (Dkt. No. 53.) On March 22, 2011, the Court granted partial summary judgment in favor of Defendants and against Plaintiff Salgado on the sixth, seventh and eighth causes of action. (Dkt. No. 99 at 10). In addition, the Court granted partial summary judgment in favor of the Defendants as to meal claims and non-Sunday rest period claims. (Id.)

On October 4, 2012, this Court granted Defendant leave to file a renewed motion to decertify the class based on the premise that Plaintiffs were unable to present common evidence at trial under Rule 23(a)(2).[1] (Dkt. No. 150.) At a hearing on the motion to decertify class held on December 7, 2012, the parties stipulated that only four causes of action remain in this class action case: failure to pay minimum wage, hourly wages and overtime wages (first cause of action); failure to provide rest breaks, or compensation in lieu thereof (third cause of action); failure to reimburse reasonable business expenses (fourth cause of action); and unfair business practices (ninth cause of action). (Dkt. No. 9, Amended Complaint; Dkt. No 164, Transcript of Decert. Hearing at 3). Consequently, the Court limits its review of class certification to these four causes of action.


Lee Publications, doing business as North County Times ("NCT"), is a newspaper of general circulation in the San Diego area. Plaintiffs are former home-delivery newspaper carriers for NCT. Plaintiffs allege, as a group, newspaper carriers delivering the NCT have been misclassified as "independent contractors, " resulting in various violations of the California Labor Code, and causing them to suffer damages in the form of unpaid regular and overtime wages, unpaid rest breaks and meal periods, improper deductions from their paychecks, and expenses incurred in discharging their duties. Defendant denies these claims, maintain that Plaintiffs are properly classified as independent contractors, and are therefore not entitled to the relief sought.

On July 27, 2010, Judge Moskowitz granted certification, under Rule 23(b)(3), of the following class:

"All persons presently and formerly engaged as newspaper home delivery carriers by LEE PUBLICATIONS, INC., and for the North County Times newspaper in the State of California during the period from and including April 18, 2004, through and including the date of trial set for this action, and who, as a condition of such engagement, signed a written agreement for the home delivery of newspapers, which categorized them as independent contractors and not employees." [Dkt. No. 76 at 15-16.]

In certifying the class, Judge Moskowitz found "there is one significant issue common to the class' sufficient to warrant certification. And that issue is the one central to this case: whether Defendant improperly characterized Plaintiffs as independent contractors instead of employees."[2] (Dkt. No. 76, Order Certifying the Class, quoting Dukes v. Wal-Mart, Inc. 509 F.3d 1168 , 1176 (9th Cir. 2007)). Judge Moskowitz found the Plaintiffs had satisfied each of the Rule 23(a) elements, including commonality requirement contained in Rule 23(a)(2). (Id. at 4.) Judge Moskowitz cited the common contracts with the Defendant, the similar duties among the carriers, and similar pay structures to find that "these common facts and issues are sufficient to satisfy the permissive commonality requirement." Id . He further conducted a Rule 23(b)(3) analysis, focusing on whether the factors under California law used to determine whether a worker is an employee or independent contractor were susceptible to common proof. The Court considered the primary factor as to whether or not the defendant had the "right to control the manner and means of accomplishing the result desire." (Id. at 9, quoting Cristler v. Express Messenger Sys., Inc. , 171 Cal.App.4th 72, 77 (2009)). He also reviewed the 12 "secondary factors" in the independent contractor/employee analysis. (Id. at 9-12.) Although certain factors were less susceptible to common proof, he ultimately concluded that "common issues predominate and it would be far more efficient to resolve the question of employment status on a classwide, rather than individual basis." (Id. at 15.)

On April 24, 2012, Judge Bencivengo denied Defendant's motion to decertify the class. (Dkt. No. 126.) In the motion to decertify, Defendant argued that discovery failed to show that the class met Federal Rules of Civil Procedure 23(a), "commonality", and (b), "predominance and superiority." Defendant claimed that discovery in the case, as well as the U.S. Supreme Court's post-class certification decision in Wal-Mart Stores, Inc. v. Dukes , 131 S.Ct. 2541 (2011), showed predominating individualized issues made a class action unmanageable and inferior. Defendant further argued that discovery had been completed, and still Plaintiffs could not provide a common answer to the threshold question of employee status.

Judge Bencivengo found that the Supreme Court decision in Wal-Mart did not warrant decertification of the class in this case. She found that Plaintiffs satisfied the Wal-Mart commonality prerequisite because there was a significant common issue central to the case: whether Defendant improperly characterized Plaintiffs as independent contractors instead of employees. Judge Bencivengo further found that Plaintiffs provided sufficient evidence through discovery that there were common answers to this question. She refused to revisit Judge Moskowitz' determination on finding the class satisfied Rule 23(b)(3)'s predominance factor, since the Court in Wal-Mart did not analyze the predominance factor, and the Judge was satisfied with the Plaintiffs' representations in briefing that they had methods to prove common issues on a classwide basis.


"A district court's order respecting class certification is inherently tentative' prior to final judgment on the merits." Officers for Justice v. Civil Serv. Comm'n , 688 F.2d 615, 633 (9th Cir.1982); see also Fed.R.Civ.P. 23(c)(1)(C). Thus, if the Court determines that a class was not properly certified it may modify or decertify that class. See Gen. Tel. Co. of Sw. v. Falcon , 457 U.S. 147, 160 (1982). In reviewing whether certification remains proper, the Court again applies the requirements of Federal Rule of Civil Procedure 23. O'Connor v. Boeing N. Am., Inc. , 197 F.R.D. 404, 410 (C.D.Cal.2000). The moving party bears the burden of demonstrating that class certification is no longer proper. Gonzales v. Arrow Fin. Servs. LLC , 489 F.Supp.2d 1140, 1153 (S.D.Cal.2007); Slaven v. BP Am., Inc. , 190 F.R.D. 649, 651 (C.D.Cal.2000). However, the decision on whether to decertify lies within the Court's sound discretion. Knight v. Kenai Peninsula Borough Sch. Dist. , 131 F.3d 807, 816 (9th Cir.1997).

Rule 23 provides district courts with broad authority at various stages in the litigation to revisit class certification determinations and redefine or decertify classes as appropriate. Armstrong v. Davis , 275 F.3d 849, 871 n.28 (9th Cir. 2001), abrogated on other grounds by Johnson v. California , 543 U.S. 499, 504-05 (2005). In deciding this motion, the Court "is bound to take the substantive allegations of the complaint as true." In re Coordinated Pretrial Proceedings in Petroleum Prods. Antitrust Litig. , 691 F.2d 1335, 1342 (9th Cir.1982) (citing Blackie v. Barrack , 524 F.2d 891, 901 n. 17 (9th Cir.1975)). Nonetheless, the Court may "consider evidence which goes to the requirements of Rule 23 even though the evidence may also relate to the underlying merits of the case." Hanon v. Dataproducts Corp. , 976 F.2d 497, 509 (9th Cir.1992). However, weighing of competing evidence is inappropriate. Wang v. Chinese Daily News, Inc. , 231 F.R.D. 602, 605 (C.D.Cal.2005) (citing Staton v. Boeing Co. , 327 F.3d 938, 954 (9th Cir.2003)) (abrogated on other grounds by Vinole v. Countrywide Home Loans, Inc. , 571 F.3d 935 (9th Cir.2009).


The Court's July 27, 2010 order certifying a class focused on the threshold question of whether the class members were employees or independent contractors. The Court reaffirms the finding that the question of employee status may be resolved on a classwide basis. On this central issue, the existence of a uniform contract in addition to other available evidence generates "common answers apt to drive the resolution of the litigation." Wal-Mart, Inc. v. Dukes , 131 S.Ct. 2541, 2550 (2011).

While employee status may be determined on a classwide basis through common proof, the Court concludes that certain causes of action are not amenable to class treatment. Upon review of Plaintiffs' proposed trial plan and applicable law, the Court affirms class certification under Rule 23(c)(4) for the following claims: failure to reimburse for reasonable expenses and unfair business practices. Meanwhile, the Court finds individual issues predominate on questions of liability and damages for the claims of ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.