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Harp v. Starline Tours of Hollywood, Inc.

United States District Court, C.D. California

July 27, 2015

JOAN HARP ET AL
v.
STARLINE TOURS OF HOLLYWOOD, INC. ET AL

CIVIL MINUTES - GENERAL

CHRISTINA A. SNYDER, District Judge.

Proceedings: PLAINTIFFS' AMENDED MOTION FOR CLASS CERTIFICATION (dkt. 66, filed June 8, 2015)

I. INTRODUCTION & PROCEDURAL HISTORY

Plaintiff Joan Harp initially filed this putative class action against defendants Starline Tours of Hollywood, Inc., Starline Sightseeing Tours, Inc., Starline Tours USA, Inc., Vahid Sapir, Farid Sapir, and Does 1 through 150 (collectively, "Starline" or "Starline defendants") in Los Angeles County Superior Court on December 28, 2012. Dkt. 1-1. Plaintiff filed a first amended complaint ("FAC") in state court on June 14, 2013. Dkt. 1-4. Soon thereafter, the state court struck plaintiff Harp's class allegations, and dismissed Harp as class representative. Dkts. 1-5; 1-6. William Brockman and Andres Reyes were subsequently substituted as named plaintiffs, dkt. 20-1, and EHM Productions, Inc., ("EHM") was added as a named defendant. Dkt. 1-9.

On September 29, 2014, the state court granted plaintiffs leave to file the operative Second Amended Complaint ("SAC"). Dkt. 1-14. The SAC asserts the following claims against Starline and EHM: (1) failure to compensate for all hours worked, in violation of Cal. Labor Code §§ 1182, 1194, 1197, 1197.1, 1198; (2) failure to pay reporting time pay, in violation of Cal. Code Regs. Title 8, §§ 11040, 11090, Subd. 5; (3) failure to pay overtime compensation, in violation of Cal. Labor Code §§ 510, 1194, 1194.2, 1198; (4) failure to pay overtime, in violation of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201, et seq.; (5) failure to provide meal and rest periods, in violation of Cal. Labor Code §§ 226.7, 512; (6) failure to provide itemized wage statements, in violation of Cal. Labor Code § 226; (7) failure to maintain accurate records, in violation of Cal. Labor Code §§ 1174, 1174.5; (8) failure to pay wages upon discharge, in violation of Cal. Labor Code § 203; (9) violation of the Private Attorneys General Act ("PAGA"), Cal. Labor Code § 2698, et seq.; (10) conversion, in violation of Cal. Civil Code § 3336; (11) failure to reimburse expenses, in violation of Cal. Labor Code § 2802; (12) unfair competition, in violation of Cal. Bus. & Prof. Code § 17200, et seq. Defendants removed the action to this Court on October 3, 2014. Dkt. 1.

By order dated November 25, 2014, this Court denied plaintiffs' motion to remand the action to state court, but declined to exercise supplemental jurisdiction over plaintiffs' state law claims. Dkt. 28. Accordingly, the only claim pending before the Court is plaintiffs' claim that defendants failed to pay its hourly employees overtime compensation, in violation of the FLSA.

On June 8, 2015, plaintiffs filed the instant motion to conditionally certify an FLSA collective action. Dkt. 66.[1] Defendants separately opposed the motion on July 6, 2015, dkts. 75, 76, and plaintiffs replied on July 13, 2015, dkt. 116.[2] The Court held a hearing on July 27, 2015. Having carefully considered the parties' arguments, the Court finds and concludes as follows.

II. BACKGROUND

Plaintiffs allege that defendants "are owners, operators, partners or otherwise in a business venture or business operation related to sightseeing or star searching... conducted on a moving vehicle." SAC ¶ 19. As clarified by defendants, "Starline is a tour company that operates over one-hundred sightseeing tours throughout California, New York, and other states." EHM Opp'n at 2; Pierce Decl. ¶ 3; id. Ex. A (printouts from Starline's website). Starline does business in greater Los Angeles County and Orange County, operating between 60 and 180 daily tours that utilize between 65 and 135 vehicles. Starline Opp'n at 3; Farhadi Decl. ¶ 3.[3]

Defendant EHM is a media company that owns the TMZ brand, which "is synonymous with entertainment news and celebrity gossip." EHM Opp'n at 2; see also Alpert Decl. ¶ 2. In 2010, EHM agreed to license the TMZ brand to Starline and provide tour guides in connection with "just one" of Starline's tours-the "TMZ Hollywood Tour." EHM Opp'n at 2; see also Alpert Decl. ¶¶ 4-5.[4] As part of the licensing agreement, EHM provides the TMZ Hollywood Tour guides and content, while Starline provides tour buses, drivers, dispatchers, maintenance, ticket sales personnel, marketing personnel, and "every other logistical requirement." Alpert Decl. ¶ 5. EHM unilaterally hires, supervises, and terminates the TMZ Hollywood Tour guides. Mauer Dec. ¶¶ 2, 3.[5] EHM has employed approximately twenty tour guides over the past three years. Id . ¶ 2. Only three of Starline's fleet of buses service the TMZ Hollywood Tour. Alpert Decl. ¶ 6.

Starline currently employs 217 hourly employees in various capacities. Starline Opp'n at 3; Farhadi Decl. ¶ 3. Specifically, Starline employs 121 drivers, 11 dispatchers, 54 sales people, 25 customer service representatives, and 6 accounting clerks. Id . Until February 2013, Starline also employed 15 mechanics. Id . Salespeople, who are based primarily in Hollywood, Santa Monica, and Beverly Hills, sell tours from both static locations and handheld devices. Starline Opp'n at 4; Farhadi Decl. ¶ 5. Controllers, who do not appear to be hourly employees, oversee the sales force and implement their meal breaks and rest periods. Id . Customer service representatives handle online, telephone, and on-site hotel tour bookings. Starline Opp'n at 4; Farhadi Decl. ¶ 6. Dispatchers located in Hollywood, Santa Monica, Vernon, and Anaheim create and implement schedules for drivers. Starline Opp'n at 4; Farhadi Decl. ¶ 7. Accounting clerks are based in Hollywood, and are supervised by the accounting manager. Starline Opp'n at 4; Farhadi Decl. ¶ 8.

Starline drivers are divided into several different categories: (1) tour drivers (including charters and trolleys); (2) TMZ tour drivers; (3) run around drivers; and (4) hop-on/hop-off drivers. Starline Opp'n at 5; Farhadi Decl. ¶ 9. Each group of drivers is supervised by a different general manager, dispatch supervisor, and dispatcher. Id .; see also Slaughter Decl. ¶¶ 3, 4; Robinson Decl. ¶¶ 3, 4.[6]

In April 2012, Starline defendants hired named plaintiff William Brockman as a tour driver, ultimately terminating his employment in May 2013. Brockman Decl. ¶ 2. According to Brockman, he was also hired by defendant EHM. Id . ¶ 3. Brockman served as a driver on the TMZ Hollywood Tour, as well as "elsewhere on different driving assignments." Id . ¶ 7. Named plaintiff Andres Reyes was hired by Starline as a tour driver in August 2012, and was terminated in October 2013. Reyes Decl. ¶ 2. Reyes served as a driver on "various tours, " including the hop-on/hop-off and double decker bus tours. Id . ¶ 4. George Chaffin, who is not a named plaintiff, was hired as a tour driver for Starline in June 2013 and terminated in March 2014. Chaffin Decl. ¶ 2. Chaffin likewise drove "various tours, " including the TMZ Hollywood Tour. Id . ¶ 4.

Brockman, Reyes and Chaffin each aver that, though they often worked more than 40 hours in a week, defendants frequently did not pay them the required time-and-a-half compensation for their overtime hours. See Brockman Decl. ¶¶ 8, 10; Reyes Decl. ¶ 5; Chaffin Decl. ¶ 7. More specifically, plaintiffs contend that defendants routinely prevented drivers from taking lunch breaks, and the lunch breaks they did take were frequently interrupted. Plaintiffs assert that "this caused an accumulation of unpaid overtime because... ...


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