United States District Court, E.D. California
KIMBERLY J. MUELLER, District Judge.
The plaintiffs, hourly workers, move for class certification against their current and former employers. Pls.' Mot. Class Cert., ECF No. 56. Three defendants, Taylor Farms Pacific, Inc. (TFP), Abel Mendoza, Inc. (AMI), and SlingShot Connections, LLC (SlingShot), oppose their motion. Def. TFP's Opp'n Class Cert. (TFP Opp'n), ECF No. 92; Def. AMI's Opp'n Class Cert. (AMI Opp'n), ECF No. 100; Def. SlingShot Opp'n Class Cert. (SlingShot Opp'n), ECF No. 102. Plaintiffs have replied. Pls.' Reply Class Cert. (Reply), ECF No. 112. The court heard argument on November 22, 2013. Patricia Oliver and Stuart Chandler appeared for the plaintiffs. Jesse Cripps and Sarah Zenewicz appeared for defendant TFP; Hope Case and Luanne Sacks appeared by telephone for defendant SlingShot; and Michael Claiborne appeared for defendant AMI. As explained below, the motion is GRANTED IN PART and DENIED IN PART.
A. Claims and Previous Orders
TFP operates two food production and processing plants in Tracy, California. Mem. 5. The plaintiffs used to work in these plants. Id. They seek to represent a class of the defendants' current and former employees and bring employment claims. Seventh Am. Compl. (Compl.) 11-25, ECF No. 101. Their claims arise from three core allegations: that the defendants did not pay them for time spent putting on and taking off mandatory personal protective equipment, that is "donning and doffing" the equipment, see, e.g., id. ¶¶ 31, 33; that the defendants did not allow them rest breaks and meal breaks as required by California labor law, see, e.g., id. ¶¶ 33, 47-50; and that they did not receive paychecks in the form and at the time California law requires, see, e.g., id. ¶¶ 68, 76. Specifically, the plaintiffs' plead eight claims:
1. For compensation for all hours worked under California Labor Code § 204 and California Code of Regulations title 8, § 11040(11)(A), Compl. ¶¶ 29-35;
2. For overtime wages under California Labor Code §§ 200, 510(a), and 1194(a) and California Code of Regulations title 8, § 11040(11)(A), Compl. ¶¶ 36-45;
3. For failure to offer duty-free meal and rest periods under California Labor Code §§ 226.7 and 512, Compl. ¶¶ 46-51;
4. For failure to offer certain 30-minute meal and 10-minute rest breaks under California Labor Code § 512 and California Code of Regulations title 8, § 11080, Compl. ¶¶ 52-61;
5. For unpaid wages and waiting time penalties under California Labor Code §§ 201-203, Compl. ¶¶ 62-72;
6. For failure to properly itemize pay stubs in violation of California Labor Code §§ 226(a) and (e), Compl. ¶¶ 73-78;
7. For violation of California's Unfair Competition Law (UCL), Business and Professional Code §§ 17200 et seq., Compl. ¶¶ 79-92; and
8. To enforce California's Private Attorney General Act (PAGA), California Labor Code §§ 2698-2699.5, Compl. ¶¶ 93-96.
The court has previously issued several orders, which limit the scope of the court's inquiry in response to this motion. On October 15, 2013, the court granted TFP's motion to dismiss plaintiff Morris's fifth claim and the seventh claim insofar as it was based on the fifth. Order, ECF No. 76. On March 28, 2014, the court granted TFP's motion for summary judgment as to plaintiff Suarez's first, second, and seventh claims based on her dressing and removing personal protective equipment. Order, ECF No. 144. On April 23, 2014, the court granted Manpower's motion to dismiss plaintiffs Hernandez's and Morris's fourth and eighth claims, the sixth claim as premised on failure to itemize wage payments for noncompliant meal and rest breaks, and the seventh claim as based on the claims dismissed in the same order. Order, ECF No. 146. On February 4, 2015, the court granted TFP's motion for summary judgment on the sixth claim as to plaintiffs Pena, Suarez, and Dail and the eighth claim as to all plaintiffs. Order, ECF No. 199. On the same day, the court granted AMI's motion for summary judgment as to all claims brought by plaintiffs Hernandez, Suarez, Dail, and Morris and as to plaintiff Pena's fourth, sixth, and eighth claims. Order, ECF No. 198.
To the extent the plaintiffs' seventh unfair competition claim survives, it is based on plaintiffs' Labor Code claims. See Compl. ¶ 83. As the seventh claim is entirely derivative of the first six, it is not evaluated separately here. To the extent the PAGA claim survives, it is also derivative of other Labor Code violations and not evaluated separately here. See Cal. Lab. Code § 2699.
B. Class and Subclass Definitions
Plaintiffs' proposed class includes those persons who are both: (1) a current or former nonexempt hourly employee of TFP, or a joint or dual employee of TFP and one or more of the other defendants, and (2) someone who worked within the class period, between four years before filing of the class action and the date notice is mailed to the class. Compl. ¶ 5(A).
The plaintiffs also move to certify four subclasses. The first subclass is the "donning and doffing subclass." Id. ¶ 5(B). It includes putative class members who worked at TFP's Tracy facilities and were required to wear protective equipment, but did not receive pay for time spent putting on and taking off that equipment. Id. The second subclass is the "mixed hourly worker subclass."  Id. ¶ 5(C). It includes putative class members who worked at TFP's Tracy facilities and were either required to be back to work "within" thirty minutes after beginning a meal break or "within" ten minutes after beginning a rest break, or who were "not offered" meal and rest breaks within certain time frames required by California law. Id. The third subclass, the "waiting time penalties subclass, " includes putative class members who either resigned or were terminated and did not receive a timely or complete paycheck. Id. ¶ 5(D). The fourth subclass is the "wage statement subclass, " and includes putative class members who did not receive wage statements that included the information California law requires. Id. ¶ 5(E).
C. This Motion and Evidentiary Matters
The plaintiffs filed their motion for class certification on October 4, 2013. Mot. 3. They filed several documents in support of the motion on October 5, 2013. See ECF Nos. 58-65. TFP objects to these filings as untimely. TFP's Objections to Pls.' Evidence 14, ECF No. 97. Because the delay was the result of unforeseen technical difficulties, see James Decl., ECF No. 113-1, and caused no prejudice, the court overrules this objection. TFP also objects to most of the documentary evidence the plaintiffs offered in support of their motion on the ground that it does not satisfy the requirements of the Federal Rules of Evidence. See generally TFP's Objections to Evidence, ECF No. 97. But "evidence presented in support of class certification need not be admissible at trial." Pedroza v. PetSmart, Inc., No. 11-298, 2013 WL 1490667, at *1 (C.D. Cal. Jan. 28, 2013) (citing Keilholtz v. Lennox Hearth Prods. Inc., 268 F.R.D. 330, 337 n.3 (N.D. Cal. 2010) and Parkinson v. Hyundai Motor Am., 258 F.R.D. 580, 599 (C.D. Cal. 2008)). Moreover, documents may "be authenticated by review of their contents if they appear to be sufficiently genuine." Las Vegas Sands v. Nehme, 632 F.3d 526, 533 (9th Cir. 2011) (quoting Orr v. Bank of Am., NT & SA, 285 F.3d 764, 778 n.24 (9th Cir. 2002)). That is the case here.
TFP opposed the plaintiffs' motion to certify on November 4, 2013. On the same day, AMI and SlingShot joined TFP's opposition and opposed separately. The plaintiffs replied on November 18, 2013. With their reply, plaintiffs included several additional declarations. See Downey Decl., ECF Nos. 112-2, 112-3; Pena Decl., ECF No. 112-4; Suarez Decl., ECF No. 112-5; Dail Decl., ECF No. 112-6; Morris Decl., ECF No. 112-7. It is generally improper for a moving party to introduce new facts or different legal arguments in a reply brief. Ojo v. Farmers Grp., Inc., 565 F.3d 1175, 1185 n.13 (9th Cir. 2009); S.E.C. v. Gendarme Capital Corp., No. 11-0053, 2012 WL 346457, at *2 n.1 (E.D. Cal. Jan. 31, 2012). The court disregards these additional declarations.
In what follows, the court reviews federal law applicable to class actions in general, then considers certification of the proposed class and each subclass in turn.
II. CLASS ACTIONS IN GENERAL
Litigation by a class is "an exception to the usual rule" that only the individual named parties bring and conduct lawsuits. Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2550 (2011) (citation and internal quotation marks omitted). Only when a class action "promot[es]... efficiency and economy of litigation, " should a motion for certification be granted. Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 349 (1983). A court considers whether class litigation promotes "economies of time, effort and expense, and... uniformity of decisions as to persons similarly situated, without sacrificing procedural fairness or bringing about other undesirable results." Fed.R.Civ.P. 23(b)(3) advisory committee's note.
To be eligible for certification, the proposed class must exist: it must be "precise, objective, and presently ascertainable." Williams v. Oberon Media, Inc., No. 09-8764, 2010 WL 8453723, at *2 (C.D. Cal. Apr. 19, 2010), aff'd, 468 F.Appx. 768 (9th Cir. 2012); see also 7A Charles Alan Wright et al., Federal Practice and Procedure § 1760 (3d ed. 2005) ("If the general outlines of the membership of the class are determinable at the outset of the litigation, a class will be deemed to exist." (citations omitted)). The proposed class definition need not identify every potential class member from the very start. E.g., Doe v. Charleston Area Med. Ctr., Inc., 529 F.2d 638, 645 (4th Cir. 1975); O'Connor v. Boeing N. Am., Inc., 184 F.R.D. 311, 319 (C.D. Cal. 1998). The requirement is a practical one. It is meant to ensure the proposed class definition will allow the court to efficiently and objectively ascertain whether a particular person is a class member, see In re TFT-LCD (Flat Panel) Antitrust Litig., 267 F.R.D. 583, 592 (N.D. Cal. 2010), amended in part, No. 07-1827, 2011 WL 3268649 (N.D. Cal. July 28, 2011)), for example, so that each putative class member can receive notice, O'Connor, 184 F.R.D. at 319.
Class certification is governed by Federal Rule of Civil Procedure 23. The court must determine whether to certify a putative class, and if it does, it must define the class claims and issues and appoint class counsel. Fed.R.Civ.P. 23(c)(1), (g). Under Rule 23(c)(5), for purposes of certification, a subclass is treated exactly like a class. To be certified, a putative class must meet the threshold requirements of Rule 23(a) and the requirements of one of the subsections of Rule 23(b), which defines three types of classes. Leyva v. Medline Industries Inc., 716 F.3d 510, 512 (9th Cir. 2013). Here the plaintiffs seek certification under Rule 23(b)(3), which provides for certification of a class in which common questions of law and fact predominate and a class action is the superior means of litigation. Mem. 13.
Rule 23(a) imposes four requirements on every class. First, the class must be "so numerous that joinder of all members is impracticable." Fed.R.Civ.P. 23(a)(1). Second, questions of law or fact must be common to the class. Id. R. 23(a)(2). Third, the named representatives' claims or defenses must be typical of those of the class. Id. R. 23(a)(3). And fourth, the representatives must "fairly and adequately protect the interests of the class." Id. R. 23(a)(4). If the putative class meets these requirements, Rule 23(b)(3) imposes two additional requirements: first, "that the questions of law or fact common to class members predominate over any questions affecting only individual members, " and second, "that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." The test of Rule 23(b)(3) is "far more demanding, " than that of Rule 23(a). Wolin v. Jaguar Land Rover N. Am., LLC, 617 F.3d 1168, 1172 (9th Cir. 2010) (quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623-24 (1997)).
"The party seeking class certification bears the burden of demonstrating that the requirements of Rules 23(a) and (b) are met." United Steel, Paper & Forestry, Rubber, Mfg. Energy, Allied Indus. & Serv. Workers Int'l Union, AFL-CIO C.L.C. v. ConocoPhillips Co., 593 F.3d 802, 807 (9th Cir. 2010). This burden is real; Rule 23 embodies more than a "mere pleading standard." Wal-Mart, 131 S.Ct. at 2551. The party must "prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc." Id. The trial court must then conduct a "rigorous analysis" of whether the party has met its burden, id., and "analyze each of the plaintiff's claims separately, " Berger v. Home Depot USA, Inc., 741 F.3d 1061, 1068 (9th Cir. 2014) (citing Erica P. John Fund, Inc., v. Halliburton Co., 131 S.Ct. 2179, 2184 (2011)). The court must verify the putative class's "actual, not presumed, conformance with Rule 23(a)...." Wal-Mart, 131 S.Ct. at 2551 (alterations omitted) (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160 (1982)). This inquiry often overlaps with consideration of the merits of the plaintiffs' substantive claims. Wal-Mart, 131 S.Ct. at 2551-52. Indeed, "a district court must consider the merits if they overlap with the Rule 23(a) requirements." Ellis, 657 F.3d at 981 (emphasis in original) (citing Wal-Mart, 131 S.Ct. at 2551-52); see also Comcast Corp. v. Behrend, ___ U.S. ___, 133 S.Ct. 1426, 1433 (2013) ("[O]ur cases requir[e] a determination that Rule 23 is satisfied, even when that requires inquiry into the merits of the claim."). These same "analytical principles" also apply to the court's analysis of whether the plaintiff meets its burden under Rule 23(b). Comcast, 133 S.Ct. at 1432.
III. DONNING AND DOFFING SUBCLASS
For each proposed subclass, the court first describes applicable California law and the plaintiffs' operable claims under that law. Then the court describes the evidence the plaintiffs have proffered in support of class certification, and lastly evaluates whether the plaintiffs have met their burden. The court does not consider whether the general class encompassing each subclass could be independently certified because the proposed subclasses in total embody the plaintiffs' claims.
A. Applicable Law
If certified, the donning and doffing subclass would include members of the general class who were required to put on, take off, and clean protective equipment without pay, whether before starting work, after ending work, or during their meal and rest breaks. Mot. 1. In California, wage and hour claims are governed by two sources of law: the California Labor Code and eighteen wage orders adopted by the Industrial Welfare Commission (IWC). Brinker Restaurant Corp. v. Superior Court, 53 Cal.4th 1004, 1026 (2012). The California Supreme Court accords these two sources of law equal dignity. Id. They are to be interpreted "in light of the remedial nature of the legislative enactments" and "liberally construed with an eye to promoting... [the] protection [of employees]." Id. at 1026-27 (quoting Industrial Welfare Com. v. Superior Court, 27 Cal.3d 690, 702 (1980)). Several provisions of the California Labor Code and the IWC wage orders are relevant to the donning and doffing subclass, based on three of the plaintiffs' claims.
First, IWC Wage Order No. 4-2001, Cal. Code Regs. tit. 8, § 11040(11) defines certain required thirty-minute meal breaks. The exact nature of these breaks is not relevant here, but is discussed in greater detail below. See infra section IV.A. The wage order also provides that "[u]nless the employee is relieved of all duty" during a meal break, it is "considered an on duty' meal period and counted as time worked." Cal. Code Regs. tit. 8, § 11040(11). The plaintiffs allege in their first claim that the defendants owe them wages for the time they spent on these on-duty meal breaks because they were required to put on, take off, and clean protective equipment during this time. Compl. ¶ 33. In their second claim, the plaintiffs claim the defendants did not count time the putative class members spent putting on, taking off, and cleaning protective equipment when calculating overtime pay. Compl. ¶¶ 41-42. See also Cal. Lab. Code § 1194(a) (allowing an employee to recover in a civil action any unpaid overtime wages, interest, attorney's fees, and costs). And in their third claim, the plaintiffs point to a section of the wage order requiring an employer to pay one hour of pay at an employee's regular rate for each workday on which a duty-free meal period was not provided. Compl. § 49. They claim damages for these unpaid penalties. Id. ¶ 50.
The plaintiffs rely primarily on depositions and declarations. Mem. at 16. In addition to the depositions of the five named plaintiffs, plaintiffs have furnished declarations from more than thirty former TFP employees. Downey Decl. Exs. 36-68, ECF Nos. 61-63. In these depositions and declarations, putative class members attest directly to being required to perform work duties off the clock: before shifts, after shifts, and during meal and rest breaks. See, e.g., Angel Decl. ¶¶ 10, 17, Downey Decl. Ex. 37 at 175-77, ECF No. 61. Such duties included donning and doffing protective equipment and sanitizing equipment and persons. See, e.g., Calderon Decl. ¶¶ 4-17, Downey Decl. Ex. 40 at 2-4, ECF No. 62.
Plaintiffs also refer to TFP's various policies, including those in the TFP employee handbook, governing (1) good manufacturing practices (GMPs), Downey Decl. Exs. 5, 6, ECF Nos. 57-4, 57-5; (2) outer garments, id. Exs. 7, 8, ECF Nos. 57-6, 57-7; (3) hair and beard nets, id. Ex. 9, ECF No. 57-8; and (4) compliance, id. Ex. 10, ECF No. 57-9. These policies were posted in English and Spanish where all employees could see them, see, e.g., Rea Dep. 57:2-11, Downey Decl. Ex. 71 at 10, ECF No. 64, and provided, in part, that "protective equipment, where and when required, must be worn" and that employees must "[w]ash hands thoroughly and sanitize before work and after each absence from the work station..., " TFP's Employee Handbook Oct. 2008 §§ 4.2, 5.1, Downey Decl. Ex. 1 at 11, 12, ECF No. 57. Plaintiffs also point to testimony indicating the duration of a break was measured "from when [the employee] left [the] workstation until [the employee] return[ed]." See, e.g., Angel Decl. ¶ 10. "If [the employee returned] late from [the] break, " he or she would be disciplined. See, e.g., id. ¶ 8.
1. Existence of a Class
Here the proposed general class includes all former and current TFP employees and joint employees who worked during a defined period of time. Mot. at 1. Determining who worked for TFP and the codefendants in the specified timeframe is not an inherently unmanageable problem. Because each subclass includes only a subset of this larger general class, the subclasses are likewise sufficiently ascertainable.
2. Commonality and Predominance
Rule 23(a) requires "questions of law or fact common to the class." Fed.R.Civ.P. 23(a)(2). Such questions exist where class members suffer the same injury, Falcon, 457 U.S. at 156, such that simultaneous litigation is productive, Wal-Mart, 131 S.Ct. at 2551. "This does not mean merely that [class members] have all suffered a violation of the same provision of law." Id. Rather, the claims "must depend on upon a common contention" the nature of which "is capable of classwide resolution." Id. Common litigation must "resolve an issue that is central to the validity of each one of the claims in one stroke." Id. Although just one common question could suffice to establish commonality, id. at 2556, the true inquiry is into "the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation, " id. at 2551 (emphasis in original) (citation and internal quotation marks omitted). "Dissimilarities within the proposed class[, however, ]... have the potential to impede the generation of common answers." Id. (citation and internal quotation marks omitted).
After establishing the existence of common questions of law or fact, the proponent of a putative class must also establish that these questions "predominate over any questions affecting only individual members." Fed.R.Civ.P. 23(b)(3). "The predominance analysis under Rule 23(b)(3) focuses on the relationship between the common and individual issues' in the case and tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.'" Wang v. Chinese Daily News, Inc., 737 F.3d 538, 545 (9th Cir. 2012) (quoting Hanlon v. Chrysler Corp, 150 F.3d 1011, 1022 (9th Cir. 1998)). Some variation is permitted among individual plaintiffs' claims, Abdullah v. U.S. Sec. Assocs., Inc., 731 F.3d 952, 963 (9th Cir. 2013), but Rule 23(b)(3) is "more demanding than Rule 23(a), " Comcast, 133 S.Ct. at 1432. Courts are thus required "to take a close look' at whether common questions predominate over individual ones, " id. (citation omitted), "begin[ning]... with the elements of the underlying cause of action, " Erica P. John Fund, Inc. 131 S.Ct. at 2184. Of course, plaintiffs need not show at the certification threshold that predominant questions will be answered in their favor. Amgen, Inc. v. Conn. Ret. Plans & Trust Funds, ___ U.S. ___, 133 S.Ct. 1184, 1196 (2013). The court considers the merits only to the extent required by Rule 23. Id. at 1194-95 (citing Wal-Mart, 131 S.Ct. at 2552 n.6).
To prevail on a motion to certify a class under Rule 23(b)(3), the party seeking certification must show: "(1) that the existence of individual injury resulting from the alleged... violation... [is] capable of proof at trial through evidence that is common to the class rather than individual to its members; and (2) that the damages resulting from that injury [are] measurable on a class-wide basis through use of a common methodology." Comcast, 133 S.Ct. at 1430 (citation and internal quotation marks omitted). "Rule 23(b)(3), however, does not require a plaintiff... to prove that each elemen[t] of [her] claim [is] susceptible to classwide proof." Amgen, 133 S.Ct. at 1197 (emphasis and alterations in Amgen ) (citation and internal quotation marks omitted). Similarly, because "individualized monetary claims belong in Rule 23(b)(3), '" "the presence of individual damages cannot, by itself, defeat class certification...." Leyva v. Medline Indus. Inc., 716 F.3d 510, 514 (9th Cir. 2013) (quoting Wal-Mart, 131 S.Ct. at 2558)).
In the context of a wage and hour claim, an employer's "uniform... policies... are relevant to the Rule 23(b)(3) analysis, " but a district court may not "rely on such policies to the near exclusion of other relevant factors touching on predominance." In re Wells Fargo Home Mortg. Overtime Pay Litig., 571 F.3d 953, 955 (9th Cir. 2009). Rather, the court must "consider all factors that militate in favor of, or against, class certification." Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935, 946 (9th Cir. 2009) (citation omitted).
Here, the plaintiffs complain the defendants uniformly required them to perform off-the-clock, uncompensated labor; specifically, they were required to put on, take off, and clean protective equipment during mandated breaks and before and after shifts. Considering the depositions of the named plaintiffs and declarations from other former TFP employees, the majority of whom testify to off-the-clock donning, doffing and sanitizing, one common question arises: whether TFP has a policy, unofficial or otherwise, encouraging or requiring such practices. Although answering this question would not be dispositive as to every class member, it is central to all claims because the existence or absence of a uniform policy would be persuasive evidence. The same question is "capable of classwide resolution... in one stroke, " Wal-Mart, 131 S.Ct. at 2551, because a company-wide policy would apply to all class members.
The plaintiffs propose another common question: whether TFP's status is as a joint employer of the plaintiffs. Mem. at 18-20. To determine whether two or more entities are joint employers, courts look primarily to whether the alleged joint employers exercised control over the plaintiffs' working conditions. See Martinez v. Combs, 49 Cal.4th 35, 75-76 (2010) (resolving joint employer question by looking to "exercising control" factor and "how services are performed"). In the context of the proposed donning and doffing subclass, however, the only relevant control is over when plaintiffs put on, took off, and cleaned protective equipment. To succeed in certifying the subclass, the plaintiffs ...