Searching over 5,500,000 cases.


searching
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.

Vasserman v. Henry Mayo Newhall Memorial Hospital

United States District Court, C.D. California

December 5, 2014

TANYA VASSERMAN, on behalf of herself and all others similarly situated and the general public, Plaintiff,
v.
HENRY MAYO NEWHALL MEMORIAL HOSPITAL, and DOES 1 to 100, inclusive, Defendants

Page 933

[Copyrighted Material Omitted]

Page 934

[Copyrighted Material Omitted]

Page 935

[Copyrighted Material Omitted]

Page 936

[Copyrighted Material Omitted]

Page 937

For Tanya Vasserman, on behalf of herself and all others similarly situated and the general public, Plaintiff: Bruce Zareh Kokozian, LEAD ATTORNEY, Kokozian Law Firm APC, Beverly Hills, CA; Gregg Lander, LEAD ATTORNEY, Law Offices of Kevin T Barnes, Los Angeles, CA; Janelle C Carney, Jason T Hatcher, Joseph Antonelli, LEAD ATTORNEYS, Law Office of Joseph Antonelli, Chino Hills, CA; Kevin T Barnes, LEAD ATTORNEY, Kevin T Barnes Law Offices, Los Angeles, CA.

For Henry Mayo Newhall Memorial Hospital, a California corporation, Defendant: Aaron F Olsen, Michael S Kun, LEAD ATTORNEYS, Epstein Becker & Green PC, Los Angeles, CA; Lisa Mariko Watanabe, LEAD ATTORNEY.

Page 938

ORDER GRANTING PLAINTIFF'S MOTION TO REMAND AND DENYING DEFENDANT'S MOTION TO DISMISS AS MOOT

MARGARET M. MORROW, UNITED STATES DISTRICT JUDGE.

On June 18, 2014, Tanya Vasserman filed this putative class action in Los Angeles Superior Court against Henry Mayo Newhall Memorial Hospital (" Newhall Memorial" ) and various fictitious defendants, alleging violations of state wage and hour laws.[1] Newhall Memorial removed the action on August 8, 2014, invoking the court's federal question jurisdiction under 28 U.S.C. § 1331, and diversity jurisdiction under the Class Action Fairness Act of 2005 (" CAFA" ), 28 U.S.C. § 1332(d).[2] Newhall Memorial asserts the court has federal question jurisdiction because Vasserman's state law claims are preempted by the Section 301 of the Labor Management Relations Act of 1947 (" LMRA" ), 29 U.S.C. § 185.[3] It asserts additionally that if no federal question is presented, there is minimal diversity and the amount in controversy exceeds $5 million.

On September 8, 2014, Vasserman filed a motion to remand the action to Los Angeles Superior Court for lack of subject matter jurisdiction.[4] The same day, Newhall Memorial filed a motion to dismiss Vasserman's complaint for failure to grieve and arbitrate her claims.[5] On October 7, 2014, the court entered an order extending the time for the parties to file opposition to the motions to November 3, 2014.[6] On November 3, 2014, Newhall Memorial opposed Vasserman's motion to remand,[7] and Vasserman opposed Newhall Memorial's motion to dismiss.[8]

Pursuant to Rule 78 of the Federal Rules of Civil Procedure and Local Rule 7-15, the court finds this matter appropriate for decision without oral argument. The hearing calendared for December 8,

Page 939

2014, is therefore vacated, and the matter taken off calendar.

I. FACTUAL BACKGROUND

A. Facts Alleged in the Complaint

1. Factual Allegations Concerning All Plaintiffs

Vasserman is a clinical registered nurse who, prior to this litigation, worked at Newhall Memorial as an hourly, non-exempt employee.[9] She and the members of the putative class she seeks to represent are current and former employees of Newhall Memorial who were allegedly paid improper wages under Newhall Memorial's straight time pay plan and/or rounding pay plan, and were denied compliant meal periods as required by California law.[10]

a. Newhall Memorial's Alleged Failure to Pay All Wages Earned and Appropriate Overtime Compensation

Vasserman alleges, on information and belief, that pursuant to an established business practice and policy, Newhall Memorial schedules its non-exempt hourly employees to work in excess of eight hours a day; at times, it purportedly schedules employees to work shifts in excess of ten and twelve hours.[11] Additionally, Newhall Memorial's patient care employees, who include clinical registered nurses like Vasserman, are allegedly scheduled for shifts that exceed eight hours a day and eighty hours per pay period but do not receive straight time and overtime pay as required by law.[12]

Vasserman asserts that Newhall Memorial's policy is to pay straight time, rather than overtime, for all hours worked in excess of eight hours a day.[13] Because overtime hours are paid at the employee's base rate of pay, rather than at time-and-a-half, Newhall Memorial purportedly pays hourly, non-exempt employees less overtime compensation than they are guaranteed under the California Labor Code.[14] Vasserman alleges that Newhall Memorial designed its overtime compensation policy intentionally to deny its employees a premium rate for overtime hours and to avoid the payment of overtime altogether despite the fact that it has not received a statutory exemption under the California Labor Code.[15]

b. Newhall Memorial's Allegedly Improper Meal Policies

Vasserman also alleges that Newhall Memorial's meal period policies violate the California Labor Code and Wage Order 5-2001 of the California Industrial Welfare Commission (" IWC" ).[16] Specifically, she asserts that Newhall Memorial violates state law by failing to provide her and other hourly, non-exempt employees compliant meal periods; she asserts that it does so despite having not received a valid waiver of the meal period requirement or having qualified for any statutory exemption.[17] Vasserman alleges that she and other class members consistently worked in excess of five hours without meal breaks because Newhall Memorial regularly discouraged them from taking meal breaks and impeded their ability to take the

Page 940

breaks.[18] Vasserman was also allegedly required to answer pager messages during meal breaks, when they were provided, which prevented her from taking an uninterrupted break.[19]

c. Newhall Memorial's Alleged Failure to Provide Itemized Wage Statements

Vasserman alleges, on information and belief, that in addition to Newhall Memorial's allegedly unlawful overtime and meal period policies, it consistently failed to provide its employees itemized wage statements in accordance with California Labor Code § 226.[20] Specifically, she asserts that Newhall Memorial provided wage statements that did not accurately reflect the employee's actual regular rate of pay; the total hours worked by the employee during the pay period; the net wages earned; the name and address of the employer; and the applicable hourly rates paid during the pay period together with the number of hours worked at each rate of pay.[21]

d. Newhall Memorial's Alleged Failure to Pay Proper Wages as a Result of its Rounding Policy

Finally, Vasserman contends that Newhall Memorial employs a rounding policy in calculating employee wages that disproportionately and negatively impacts employees.[22] She asserts that the actual time worked by employees was usually rounded down so that employees were not paid for all time worked.[23] Newhall Memorial purportedly implemented this rounding policy with intent to deceive employees and cause them to believe that they were being paid proper compensation for all hours worked.[24]

2. The Putative Classes

Vasserman seeks to represent five putative classes of current and former Newhall Memorial employees:[25]

Class 1: All hourly, non-exempt employees of Newhall Memorial who worked more than eight (8) hours in a day or more than forty (40) hours in a week

Page 941

from four (4) years before the filing of this action through the date of judgment and were not paid proper premium overtime and double time wages (" Pay Plan Class" );
Class 2: All hourly, non-exempt employees who worked for Newhall Memorial at some point from four (4) years before the filing of this action through the date of judgment, and who are no longer employed by Newhall Memorial (" Waiting Time Penalty Class" );
Class 3: All hourly, non-exempt employees who worked for Newhall Memorial from four (4) years before the filing of this action through the date of judgment who were subjected to Newhall Memorial's meal period policies and practices (" Meal Break Class" );
Class 4: All hourly, non-exempt employees who worked for Newhall Memorial from one (1) year before the filing of this action through the date of judgment who were provided a paystub, i.e., wage statement, by Newhall Memorial (" Pay Stub Class" ); and
Class 5: All hourly, non-exempt employees who worked for Newhall Memorial from four (4) years before the filing of this action through the date of judgment, who were subject to Newhall Memorial's rounding policy and practice (" Rounding Class" ).

3. Vasserman's Claims

On behalf of these classes, Vasserman pleads claims for (1) violation of California's Unfair Competition Law (" UCL" ), California Business and Professions Code § 17200 et seq.; [26] (2) failure to provide overtime compensation in violation of California Labor Code § § 204, 510, 1194, 1198; [27] (3) waiting time penalties in violation of California Labor Code § 200 et seq.; [28] (4) failure to provide itemized wage statements in violation of California Labor Code § 226; [29] (5) failure to provide meal breaks in violation of California Labor Code § 226.7; [30] (6) a private attorney general (" PAGA" ) action under California Labor Code § § 2698-99 for violations of the Labor Code; [31] and (7) failure to pay all wages due to illegal rounding in violation of California Labor Code § § 204, 510, 1197, 1198.[32]

B. The Parties' Requests for Judicial Notice

Vasserman requests that the court take judicial notice of two documents in connection with her motion to remand the action to Los Angeles Superior Court,[33] while Newhall Memorial requests that the court take judicial notice of four documents in deciding its motion to dismiss Vasserman's complaint.[34] The parties' respective requests are unopposed.

A court can consider evidence in deciding a remand motion, including documents that can be judicially noticed. See, e.g., Ryti v. State Farm General Ins. Co., No. C 12-01709 JW, 2012 WL 2339718, *1 n. 4 (N.D. Cal. May 30, 2012) (granting plaintiffs' request for judicial notice and considering documents that were proper subjects of judicial notice in deciding a remand motion); Vasquez v. Arvato Digital Services, LLC, No. CV 11-02836 RSWL (AJWx), 2011 WL 2560261, *2 (C.D. Cal. June 27, 2011) (considering documents that were proper subjects of judicial notice in deciding a remand motion); Aniel v. TD Serv. Co., No. C 10-05323 WHA, 2011 WL 109550, *3 (N.D. Cal. Jan. 13, 2011) (taking judicial notice of court orders and the judgment in a prior case as public records in deciding a motion to remand); Deutsche Bank Nat. Trust Co. v. Sitanggang, No. 1:09CV01835 AWI DLB, 2010 WL 144439, *1 n. 1 (E.D. Cal. Jan. 8, 2010) (taking judicial notice of documents proffered by plaintiff in deciding a motion

Page 942

to remand); Flower v. Wachovia Mortg. FSB, No. C 09-343 JF (HRL), 2009 WL 975811, *2-3 (N.D. Cal. Apr. 10, 2009) (court took judicial notice of Office of Thrift Supervision documents regarding the corporate structure of Wells Fargo and Wachovia to determine the citizenship of the defendant corporation for purposes of a remand motion).

In deciding a Rule 12(b)(6) motion, however, courts generally look only to the face of the complaint and documents attached thereto. Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir. 2002); Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1555 n. 19 (9th Cir. 1990). Although a court must normally convert a Rule 12(b)(6) motion into a Rule 56 motion for summary judgment if it " considers evidence outside the pleadings . . . [it] may consider certain materials -- documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice -- without converting the motion to dismiss into a motion for summary judgment." United States v. Ritchie, 342 F.3d 903, 907-08 (9th Cir. 2003). See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007) (a court may consider " other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice" ); Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994) (noting that a court may consider a document whose contents are alleged in a complaint, so long as no party disputes its authenticity), overruled on other grounds by Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002).

Thus, in deciding Vasserman's motion to remand and Newhall Memorial's motion to dismiss, the court can consider material that can be judicially noticed under Rule 201 of the Federal Rules of Evidence. Fed.R.Evid. 201. Under Rule 201, the court can take judicial notice of " [o]fficial acts of legislative, executive, and judicial departments of the United States," and " [f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably undisputable accuracy."

The parties request that the court take notice of four court orders: (1) an order by Judge Philip S. Gutierrez remanding Marincovich v. Aramark Uniform & Career Apparel, Inc., No. CV 12-10245 PSG (JEMx), filed March 11, 2013; [35] (2) an order Judge Jesus G. Bernal remanding Bart v. Parkview Community Hospital Medical Center, No. EDCV 14-1614 JGB (DTBx), filed September 18, 2014; [36] (3) the opinion of the Ninth Circuit Court of Appeals in Landers v. Quality Communications, No. 12-15890, dated November 12, 2014; [37] and (4) an order by Judge Beverly Reid O'Connell in Maiava v. Brinderson Constructors, Inc., No. 2:14-CV-05514 BRO (AJWx), filed November 12, 2014.[38]

" Under Federal Rule of Evidence 201, the [c]ourt may take judicial notice of matters of public record if the facts are not 'subject to a reasonable dispute.'" Olds v. Metlife Home Loans, No. SACV 12-55 JVS (RNBx), 2012 WL 10420298, *1 n. 1 (C.D. Cal. Mar. 19, 2012) (citing Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001)). Court orders

Page 943

and filings are proper subjects of judicial notice. See, e.g., United States v. Black, 482 F.3d 1035, 1041 (9th Cir. 2007) (noting that a court " may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue" ); Reyn's Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n. 6 (9th Cir. 2006) (taking judicial notice of pleadings, memoranda, and other court filings); Asdar Group v. Pillsbury, Madison & Sutro, 99 F.3d 289, 290 n. 1 (9th Cir. 1996) (court may take judicial notice of pleadings and court orders in related proceedings); United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992) (a court may take judicial notice " of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to the matters at issue" ); U.S., ex rel. Modglin v. DJO Global Inc., 48 F.Supp.3d 1362, 2014 WL 4783575, *11 (C.D. Cal. 2014) (" As respects court orders and filings in other FCA cases, these documents, too, are the proper subject of judicial notice" (citations omitted)); Farahani v. Floria, No. 12-CV-04637 LHK, 2013 WL 1703384, *1 n. 1 (N.D. Cal. Apr. 19, 2013) (" The remaining documents submitted for judicial notice are all documents filed in previous and concurrent lawsuits, which are similarly suitable for judicial notice under Fed.R.Evid. 201(b)" ). Because each of these documents is a proper subject of judicial notice, the court grants the parties' requests, and will consider them in deciding the pending motions.

Newhall Memorial also asks that the court take judicial notice of the operative complaint in this action.[39] It is well established that a court can take judicial notice of its own files and records under Rule 201 of the Federal Rules of Evidence. Molus v. Swan, No. 05cv452-MMA (WMc), 2009 WL 160937, *2 (S.D. Cal. Jan. 22, 2009) (" Courts also may take judicial notice of their own records," citing United States v. Author Services, 804 F.2d 1520, 1523 (9th Cir. 1986)); see also NovelPoster v. Javitch Canfield Group, No. 13-CV-05186-WHO, 2014 WL 5594969, *4, n. 7 (N.D. Cal. Nov. 3, 2014) (" In conjunction with the motion, defendants requested judicial notice of various documents, including NovelPoster's ex parte application for a temporary restraining order in this case and this Court's subsequent order. . . . Defendants' request for judicial notice of the TRO application and order is GRANTED" ); In re Linda Vista Cinemas, L.L.C., 442 B.R. 724, 740 n. 7 (Bankr. D. Ariz. 2010) (stating that " [t]he court takes judicial notice of its own records," specifically, a declaration attached to the opposition to a motion for preliminary injunction, citing United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980)). Accordingly, the court grants Newhall Memorial's request for judicial notice of the complaint in this action, " although [Newhall Memorial] [is] advised for future reference that [it] need not seek judicial notice of documents previously filed in the same case. An accurate citation will suffice." NovelPoster, 2014 WL 5594969 at *4 n. 7.

Newhall Memorial also requests that the court take judicial notice of Wage Order No. 5-2001 of the California Industrial Welfare Commission (" IWC" ).[40] Industrial Wage Orders of the California IWC can be judicially noticed. See Stitt v. San Francisco Mun. Transp. Agency, No. 12-CV-03704 YGR, 2013 WL 121259, *3 (N.D. Cal. Jan. 8, 2013) (" Here, judicial notice of Wage Order 9, the SFMW O, and

Page 944

the San Francisco charter is appropriate as these documents are matters of public record" ); Mendoza v. Home Depot, U.S.A. Inc., No. CV 09-05843 SJO (JCx), 2010 WL 424679, *3 (C.D. Cal. Jan. 21, 2010) (" Defendant requests that the Court take judicial notice of . . . [IWC] Wage Order 4-2001 . . . . Industrial Wage Orders are [ ] properly subject to judicial notice pursuant to City of Sausalito v. O'Neill, 386 F.3d 1186, 1224 n. 2 (9th Cir. 2004). . . . Accordingly, the Court takes judicial notice of the [ ] above-mentioned document[ ]" ); Veliz v. Cintas Corp., No. C 03-1180 RS, 2009 WL 1107702, *3 n. 3 (N.D. Cal. Apr. 23, 2009) (taking judicial notice, inter alia, of an IWC wage order); see also City of Sausalito v. O'Neill, 386 F.3d 1186, 1224 n. 2 (9th Cir. 2004) (" We may take judicial notice of a record of a state agency not subject to reasonable dispute," citing Mack v. S. Bay Beer Distributors, Inc., 798 F.2d 1279, 1282 (9th Cir. 1986) (court may take judicial notice of records and reports of state administrative bodies), overruled on other grounds by Astoria Fed. Sav. & Loan Ass'n v. Solimino, 501 U.S. 104, 111 S.Ct. 2166, 115 L.Ed.2d 96 (1991)); Cardenas v. McLane Food Services, Inc., 796 F.Supp.2d 1246, 1251 n. 1 (C.D. Cal. 2011) (taking judicial notice of an opinion letter of the California Department of Labor Standards Enforcement). Accordingly, the court grants Newhall Memorial's request and takes judicial notice of IWC Wage Order 5-2001.

II. DISCUSSION

A. Vasserman's Evidentiary Objections

1. Declaration of Mark Puleo in Support of Newhall Memorial's Notice of Removal

Before addressing the merits of the parties' respective motions, the court first considers various evidentiary objections Vasserman asserts to declarations submitted by Newhall Memorial in support of its notice of removal and in opposition to Vasserman's motion to remand.[41] Vasserman first objects to consideration of certain portions of the declaration of Mark Puleo, Vice President and Chief Human Resources Officer at Newhall Memorial.[42] Her objections concern Paragraphs 3,[43] 4,[44] 5,[45] 6,[46] and 7[47] of the declaration.

Page 945

Vasserman objects to these paragraphs on the grounds that they (1) constitute inadmissible hearsay under Rules 801 and 802 of the Federal Rules of Evidence; (2) have not been authenticated under Rule 901; (3) constitute expert opinion by a person not qualified to offer expert testimony under Rules 701, 702, and 704; (4) are unduly prejudicial under Rule 403; (5) are irrelevant under Rule 401; and (6) lack foundation under Rule 602. None of these objections has merit.

Puleo states, under penalty of perjury, that the statements in the declaration are based on personal knowledge he has gained as Newhall Memorial's Vice President and Chief Human Resources Officer; this provides adequate foundation for the statements. See Fed.R.Evid. 602 ( " A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness's own testimony" ); Barthelemy v. Air Lines Pilots Ass'n., 897 F.2d 999, 1018 (9th Cir. 1990) (concluding that a CEO's personal knowledge of various corporate activities could be presumed). Indeed, Puleo explains that many of his statements are based on his review of Newhall Memorial records that are available to him as Vice President and Chief Human Resources Officer.[48] Moreover, Puleo's statements about the unions representing Newhall Memorial employees and the collective bargaining agreements to which they were a party is the type of information that would reasonably be known to Puleo as Chief Human Resources Officer. See, e.g., In re Kaypro, 218 F.3d 1070, 1075 (9th Cir. 2001) (" Griesbach's five-year tenure as Arrow's credit manager lends support to his claim of 'personal knowledge' of industry practice" ); Barthelemy, 897 F.2d at 1018; Chavez v. Amerigas Propane, Inc., No. CV 12-07524 MMM (Ex), 2013 WL 25882, *1 n. 5 (C.D. Cal. Jan. 2, 2013) (overruling objections to the declaration of Amerigas' Senior Counsel, who stated that Amerigas' headquarters were in King of Prussia, Pennsylvania, because, " as senior counsel for Amerigas, it is reasonable to believe that [the declarant] knows the location of the corporation's headquarters" ). Accordingly, the court overrules Vasserman's foundation objection to Puleo's declaration.

The statements in Puleo's declaration are, moreover, relevant because they bear directly on whether the court has subject matter jurisdiction. See Fed.R.Evid. 401 ( " Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action" ). Puleo's declaration makes it more likely that Vasserman's claims are preempted and/or that the requirements for removal under the Class Action Fairness Act are satisfied. Vasserman's relevance objection is thus overruled.

Even if evidence is relevant, of course, the court may exclude it under Rule 403 " if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." Undue prejudice means an " undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one." Fed.R.Evid. 403, Advisory

Page 946

Committee Notes, 1972 Proposed Rules. See also United States v. Old Chief, 519 U.S. 172, 180, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997). The statements to which Vasserman objects are not unduly prejudicial as that term is used in Rule 403. Vasserman does not explain how she will be unfairly prejudiced by Puleo's statements, and the court can discern no unfair prejudice that court result. See Dollar v. Long Mfg., N. C., Inc., 561 F.2d 613, 618 (5th Cir. 1977) (" '[U]nfair prejudice' as used in Rule 403 is not to be equated with testimony simply adverse to the opposing party. Virtually all evidence is prejudicial or it isn't material. The prejudice must be 'unfair'" ), cert. denied, 435 U.S. 996, 98 S.Ct. 1648, 56 L.Ed.2d 85 (1978). Even if there were some unfair prejudice, moreover, it would not substantially outweigh the probative value of the statements. The court therefore overrules Vasserman's Rule 403 objection to Puleo's declaration.

Similarly unavailing are Vasserman's objections under Rules 701, 702, 704, 801, 802, and 901 of the Federal Rules of Evidence. Puleo's statements do not constitute expert opinion. Rule 702 of the Federal Rules of Evidence governs the admission of expert testimony. Under Rule 702,

" [i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case." Fed.R.Evid. 702.

See also United States v. Finley, 301 F.3d 1000, 1007 (9th Cir. 2002) (" [Rule 702] consists of three distinct but related requirements: (1) the subject matter at issue must be beyond the common knowledge of the average layman; (2) the witness must have sufficient expertise; and (3) the state of the pertinent art or scientific knowledge permits the assertion of a reasonable opinion" ); Sterner v. U.S. Drug Enforcement Agency, 467 F.Supp.2d 1017, 1033 (S.D. Cal. 2006) (" There are three basic requirements that must be met before expert testimony can be admitted. First, the evidence must be useful to a finder of fact. Second, the expert witness must be qualified to provide this testimony. Third, the proposed evidence must be reliable or trustworthy" (citations omitted)).

In contrast, Rule 701 permits lay opinion testimony that is " (a) rationally based on the witness's perception; (b) helpful to clearly understanding the witness's testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702." Fed.R.Evid. 701. Rule 701's requirement that opinion testimony be based on a witness's perception derives from Rule 602. That rule states in pertinent part that " [a] witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness's own testimony." Fed.R.Evid. 602.

Puleo's statements are based on personal knowledge; they are not the product of " scientific, technical, or other specialized knowledge." That Puleo knows the information as a result of his work for Newhall Memorial does not convert factual observations into expert testimony. Courts routinely permit witnesses to offer lay opinion testimony concerning matters

Page 947

they learn or experience they gain as a result of their employment. See In re Google AdWords Litigation, No. 5:08-CV-3369 EJD, 2012 WL 28068, *5 (N.D. Cal. Jan. 5, 2012) (" Plaintiffs contend, however, that Dr. Varian's declaration also contains opinions that should be stricken as expert testimony in violation of Rule 26 disclosures. According to Plaintiffs, Dr. Varian should not be permitted to opine, among other things, that there is 'no overall or set price that could be applied uniformly across hundreds of thousands of advertisers in the class.'. . . Defendant responds that the primary purpose of Varian's Declaration is to explain to the Court how advertisers are charged for the advertisements placed through Google AdWords, the subject matter of this litigation. Additionally, Defendants argue that Dr. Varian's personal knowledge and experience permits him to make certain assertions as a lay witness under Rule 701. The Court will admit Dr. Varian's testimony regarding his knowledge of how the AdWords system works and his experience applying economic modeling to study the AdWords System. As Google's Chief Economist, Dr. Varian is qualified to explain, as a lay witness, what Google's AdWords system does, how it behaves, and what it does when certain variables are changed. Here, just because the underlying facts and data are technical does not transform the information into 'expert testimony' when those facts are within the personal knowledge and experience of the company's employee. Dr. Varian may offer lay witness opinions regarding Google's business, so long as those opinions are based on his own personal, particularized knowledge and experience relating to his employment at Google," citing Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1175-76 (3d Cir. 1993); Minority Television Project, Inc. v. FCC, 649 F.Supp.2d 1025, 1032 (N.D. Cal. 2009); Hynix Semiconductor, Inc. v. Rambus, Inc., Nos. CV-00-20905 RMW, C 05-00334 RMW, C-06-00244, 2008 WL 504098, *5 (N.D. Cal. Feb. 19, 2008)) ; see also United States v. Munoz-Franco, 487 F.3d 25, 35 (1st Cir. 2007) (" Under Rule 701, courts have allowed lay witnesses to express opinions about a business 'based on the witness's own perceptions and knowledge and participation in the day-to-day affairs of [the] business,'" citing United States v. Polishan, 336 F.3d 234, 242 (3d Cir. 2003)).

Moreover, although Puleo provides calculations concerning the number of putative class members, the approximate number of paychecks they received, and their average hourly rate of pay, none of this information concerns subject matter " beyond the common knowledge of the average layman," such that Puleo would have to qualify as an expert. Vasserman does not explain why simple mathematical calculations constitute expert testimony. Although she contends that Puleo must be " an expert qualified to provide an opinion as to . . . who constitutes [a] class member[ ]," [49] the court does not agree. As discussed infra, the identity of putative class members can be determined based on the class definitions alleged in the complaint. Vasserman also argues that Puleo " has not established himself as an expert to testify as to the grievance and arbitration provisions [of the collective bargaining agreements (" CBAs" )] or whether the grievance and arbitration provisions cover the alleged Labor Code violations, as asserted in Plaintiff's Complaint." [50] Contrary to Vasserman's assertion, Puleo does not testify " as to" the substance of the grievance and arbitration provisions or

Page 948

whether they " cover the alleged Labor Code violations" ; he merely notes that the agreements contain such provisions.[51] A declarant need not be an expert witness to offer this type of testimony. The court therefore concludes that Puleo does not offer expert testimony and overrules Vasserman's objections under Rules 701, 702, and 704.

Vasserman objects finally that the challenged paragraphs of Puleo's declaration contain inadmissible hearsay and lack authentication. She offers no substantive argument supporting the objections and the court finds no basis for them. Puleo is not recounting an out-of-court statement to prove the truth of the matter asserted; rather, he testifies based on personal knowledge of Vasserman's personnel files. Cf. Fed.R.Evid. 801(c)( " 'Hearsay' means a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement" ). Moreover, it is unclear what portions of Puleo's statements Vasserman contends must be authenticated. Accordingly the court overrules Vasserman's authentication objection. See, e.g., Burch v. Regents of University of California, 433 F.Supp.2d 1110, 1123-24 (E.D. Cal. 2006) (" Because defendants only generally raise this objection without specifying which of the numerous exhibits . . . are actually not self authenticating, the court overrules this objection. The burden is on defendants to state their objections with specificity. Cf. 10B Wright, Miller & Kane, FEDERAL PRACTICE AND PROCEDURE § 2738 ('It follows that a motion to strike should specify the objectionable portions of the affidavit and the grounds for each objection. A motion asserting only a general challenge to an affidavit will be effective.') Moreover, because defendants do not actually dispute the authenticity of these documents, the court is confident plaintiff would be able to authenticate them at trial" (emphasis added)).

For the reasons stated, the court overrules each of Vasserman's objections to Puleo's declaration and will consider the declaration in its entirety in ruling on the motion to remand.

2. Declarations of Angela Watkins and Rolando Bergado in Support of Newhall Memorial's Notice of Removal

Vasserman also objects to portions of the declarations of Angela Watkins[52] and Rolando Bergado [53] filed in support of Newhall Memorial's notice of removal.[54] Specifically, she objects to Paragraphs ...


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.