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Mireles v. Paragon Systems, Inc.

United States District Court, S.D. California

September 8, 2014

CRUZ MIRELES, et al.,
v.
PARAGON SYSTEMS, INC., Defendant. on behalf of themselves and all others similarly situated, Plaintiffs,

ORDER DENYING MOTION FOR CLASS CERTIFICATION [doc. #66]

M. JAMES LORENZ, District Judge.

Pending before the Court is Plaintiffs' motion for class certification under Federal Rule of Civil Procedure 23. The motion has been fully briefed and is decided on the papers submitted.

I. Background

Paragon has been registered as a Private Patrol Operator with the California Bureau of Security and Investigative Services under Business and Professions Code, Division 3, Chapter 11.5, since October 12, 2006. Defendant provides security services to hundreds of federal government sites throughout California under contracts with the United States Department of Homeland Security's Federal Protective Services. All named plaintiffs[1] are or were employed by Paragon as security officers in the security services industry and were covered by one or several collective bargaining agreements ("CBAs") entered between Paragon and various unions.

The first amended complaint alleges eight causes of action against defendant Paragon Systems, Inc.: (1) failure to provide meal period premium pay, (2) failure to provide rest break premium pay, (3) failure to pay overtime premium pay, (4) failure to indemnify/reimburse, (5) failure to provide accurate wage statements, (6) failure to promptly pay wages owed, (7) unfair, fraudulent and unlawful practices, and (8) violation of the private attorneys general act ("PAGA"). Defendant sought partial summary judgment on plaintiffs' first, third, and as to some named plaintiffs, the fourth causes of action. The Court granted that motion. ( See Order filed September 4, 2014, doc. #100].) Accordingly, the failure to provide meal period premium pay and failure to pay overtime premium pay are no longer at issue in determining the merits of the pending motion.[2]

II. Plaintiffs' Motion for Class Certification

In seeking to certify the class, plaintiffs define the class as:

"All current and former non-exempt Security Officers who worked for Defendant anytime from June 2010 to the present." (Mtn. Ps&As at 2.)

Plaintiffs propose the following subclasses:

• Subclass 1: "All current or former non-exempt Security Officers who worked for DEFENDANT during the CLASS PERIOD, who have not been compensated premium pay for all hours worked in excess of eight (8) hours per day and/or all hours worked on the seventy consecutive day in a workweek."
• Subclass 2: "All current or former non-exempt Security Officers who worked for DEFENDANT during the CLASS PERIOD, who have been prohibited from taking 30-minute uninterrupted meal periods and who were not paid premium pay."
• Subclass 3: "All current or former non-exempt Security Officers who worked for DEFENDANT during the CLASS PERIOD, who have not been provided lawful rest periods or premium pay by DEFENDANT."
• Subclass 4: "All current or former non-exempt Security Officers who worked for DEFENDANT during the CLASS PERIOD, who DEFENDANT failed to compensate for all hours worked before and after their scheduled shift, including but not limited to hours worked while commuting to and from their place of employment with a company issued firearm.

As previously noted, plaintiffs' first and third causes of action have been dismissed by summary adjudication; therefore, Subclasses 1 and 2 are no longer under consideration. The fourth subclass that plaintiffs seek to certify was not pleaded in the FAC. The Court denied plaintiffs' motion to file a second amended complaint to add these allegations. (Order filed June 16, 2014.) Accordingly, only Subclass 3, which addresses the rest and premium pay claim under California Labor Code § 226.7 and Industrial Welfare Commission Wage Order No. 4, remains as a potentially viable class claim.

III. Objections

Before turning to the merits of plaintiffs' motions, the Court notes that both parties have submitted objections to various evidentiary materials.

Defendant objects to certain evidence submitted by plaintiffs in support of their motion for class certification including 18 late declarations from putative class members; the declaration of putative class member, Guillermo Rodriguez; declarations not supported by personal knowledge; and evidence concerning claims that are not at issue in the motion for class certification. Also, defendant objects to plaintiffs' 32 "cookie cutter" declaration of putative class members that nearly one third later retracted or otherwise admitted to making inaccurate statements in their original declarations.

In addition to plaintiffs' objections to certain evidence, plaintiffs attached a motion to strike the evidence to their objections. Plaintiffs' motion to strike is denied as procedurally improper. Under the Civil Local Rules, prior to filing a motion, the party must obtain a hearing date ...


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