United States District Court, E.D. California
MEMORANDUM AND ORDER
MORRISON C. ENGLAND, Jr. UNITED STATES DISTRICT JUDGE
putative class action proceeds on Plaintiff Christina
Culley’s (“Plaintiff”) First Amended
Complaint (“FAC”) against her employers,
Defendants Lincare Inc. and Alpha Respiratory Inc.
(collectively, “Defendants”). Presently before
the Court are: (1) Plaintiff’s Motion for Class
Certification (ECF No. 44); (2) Defendants’ Objection
and Counter-Motion to Strike the Declaration of Eric Lietzow
(ECF No.50-5); (3) Defendants’ Objections and
Counter-Motion to Strike the Declarations of Aaron Huff and
Michael Zachwieja (ECF Nos. 50-4); and (4) Plaintiff’s
Objections to Defendants’ Evidence In Support Of
Opposition to Motion for Class Certification (ECF No. 53).
For the following reasons, Plaintiff’s Class
Certification Motion is GRANTED, Defendants’
counter-motions are DENIED, and Plaintiff’s objections
employed Plaintiff as a Healthcare Specialist from September
2010 through September 2015. Culley Decl. ¶ 2, ECF No.
44-4. According to Plaintiff, she was a non-exempt employee
entitled to overtime pay and meal and rest breaks. FAC ¶
5, ECF No. 43. Defendant Lincare Inc. paid her on an hourly
basis, and she received a bonus as additional compensation.
FAC, Plaintiff brings the following causes of action against
Defendants: (1) Unlawful Business Practices
(“UCL”) on behalf of herself and a California
class, Cal. Bus. & Prof. Code § 17200, et
seq.; (2) Failure to Pay Minimum and Overtime
Compensation on behalf of herself and a California Labor
sub-class, Cal. Lab. Code §§ 204, 510, 1194, 1198;
(3) Failure to Provide Accurate Itemized Statements on behalf
of herself and a California Labor sub-class, Cal. Lab. Code
§ 226; and (4) violation of the California Labor Code
Private Attorneys General Act on behalf of herself, Cal. Lab.
Code § 2698, et seq. Presently before the Court
is Plaintiff’s request to certify the above classes.
Defendants timely opposed certification and filed counter
motions to strike a portion of Plaintiff’s evidence.
For her part, Plaintiff objects to Defendants’ evidence
as well. The Court will address the evidentiary arguments
Defendants’ Objection and Counter-Motion to Strike the
Declaration of Eric Lietzow
move to strike the declaration of Plaintiff’s
accounting expert Eric Lietzow under Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), Federal
Rules of Civil Procedure 26 and 37 and Federal Rules of
Evidence Rules 702 and 703. Defs.’ Objection &
Notice of Counter-Mot. & Counter-Mot. to Strike Decl. of
Eric Lietzow (“Lietzow Counter-Mot.”), ECF No.
50-5. However, “[a]t this early stage, robust
gatekeeping of expert evidence is not required; rather, the
court should ask only if expert evidence is useful in
evaluating whether class certification requirements have been
met.” Tait v. BSH Home Appliances Corp., 289
F.R.D. 466, 492-93 (C.D. Cal. 2012) (quotation marks and
citations omitted). “Any determination the court makes
regarding the admissibility of expert testimony (other than a
finding that an expert is not qualified), is not a final
conclusion that will control the admissibility of the
expert’s testimony at trial.”
Cholakyan v. Mercedes-Benz, USA, LLC, 281 F.R.D.
534, 542 n.53 (C.D. Cal. 2012).
argue Lietzow’s opinion is unreliable for a number of
reasons. For example, with regard to the meal period claim,
Defendants contend he erroneously used “work day”
instead of “work period” for his calculation and
did not account for “how or why” employees missed
meal breaks. Lietzow Counter-Mot. 1:13-23. For the reporting
time claim, Defendants contend Lietzow failed to account for
whether employees reported to any worksite or whether
Defendant Alpha Respiratory Inc. exercised control over the
nature and duration of service calls. Id. at
1:24-2:2. For the overtime claim, they contend he did not
determine whether the bonus was discretionary or
non-discretionary and incorrectly used the earnings code
“Bonus OT” instead of also using
“Bonus.” Id. at 2:3-11. Plaintiff
opposes Defendants’ motion, arguing that
Lietzow’s opinion is a reliable projection of class
damages, he is well-qualified to testify as an expert, and
that by way of the instant Motion Defendants are really
attacking the merits of Plaintiff’s suit. Pl.’s
Response to Defs.’ Objection to Decl. & Report of
Eric R. Lietzow & Opp’n to Lietzow Counter-Mot.,
ECF No. 54.
the reasons for unreliability identified by Defendants are in
part contested issues in this case, going to the ultimate
liability determination. For example, the parties contest
whether Defendants paid a discretionary or non-discretionary
bonus. Contrary to Defendants’ arguments, however,
“Plaintiff [is] not required to prove the merits of
[her] case-in-chief at the class certification stage.”
In re TFT-LCD (Flat Panel) Antitrust Litig., 267
F.R.D. 583, 604 (N.D. Cal. 2010) (internal quotation marks
omitted), amended in part, No. M 07-1827 SI, 2011 WL
3268649 (N.D. Cal. July 28, 2011).
the Ninth Circuit has held that at the class certification
stage, plaintiffs need only propose a valid method for
calculating class-wide damages, not an actual calculation of
damages. Leyva v. Medline Indus., Inc., 716 F.3d
510, 514 (9th Cir. 2013). Defendants have not shown that any
of the variables (work day versus work period, Bonus OT
versus Bonus OT and Bonus) are foundational to
Lietzow’s method for calculating damages. That is,
nothing in the papers indicates his damages models depend on
certain variables, and most likely other variables could be
substituted or added into those models with the purported
effect of reducing damages. Ex. G, at 74:6-8, ECF No. 50-1.
Moreover, any opinion concerning the actual calculation of
damages is not “useful in evaluating whether class
certification requirements have been met.”
Dukes, 222 F.R.D. at 191.
next argue that Plaintiff untimely disclosed Lietzow’s
declaration under Rule 26. Lietzow Counter-Mot. 12:10-27.
According to Defendants, Plaintiff possessed Lietzow’s
declaration as early as April 22, 2016, but did not disclose
it until she filed her Motion for Class Certification on May
13, 2016, in violation of her ongoing duty to supplement the
discovery responses she made as early as May 19, 2015.
Id. at 12:22-27; Decl. of David L. Cheng ¶ 12,
ECF No. 50-1.
Rule 302(c)(1) dictates that “[a]ll discovery motions,
including [Rule] 37 motions, ” be decided by a
magistrate judge. Defendants rely on Rule 37(c)(1).
E.g., Lietzow Counter-Mot. 12:20-21. It follows that
the timeliness challenge should more properly have been
noticed before the assigned magistrate judge. Given that the
motion is procedurally defective for other reasons as well,
however, it is nonetheless more efficient for the Court to
address it here. More specifically, under Local Rule 251(b),
“discovery disputes ‘pursuant to Fed.R.Civ.P. 26
through 37’ cannot be raised before the Court without
the parties meeting and conferring in a good faith effort to
resolve the issues.” Rosales v. El Rancho
Farms, No. 1:09-CV-00707-AWI-JLT, 2011 WL 6153212, at *4
(E.D. Cal. Dec. 12, 2011). Nothing in the record indicates
that Defendants attempted to meet and confer with Plaintiff
prior to filing its counter-motion. Accordingly,
Defendants’ motion is procedurally defective as well
and is DENIED.
Defendants’ Objections and Counter-Motion Strike
Declarations of Aaron Huff and Michael Zachwieja
also move to strike the declarations of Plaintiff’s
declarants Aaron Huff and Michael Zachwieja on grounds that
Plaintiff untimely disclosed Huff’s and
Zachwieja’s declarations. Defs.’ Objections &
Notice of Counter-Mot. & Counter-Mot. to Strike Decls. of
Aaron Huff and Michael Zachwieja, ECF No. 50-4. For the
reasons just stated, this counter-motion is also DENIED for
failure to comply with the requirements of Local Rule 251(b).
Plaintiff’s Objections to Defendants’
objects to the declarations of Paula Adams, Danell Dickson,
Kelly Renee Newman, Kirk Miller Northrop, Bill Russ and Janie
Wavers (the “declarations”), arguing, among other
things, that the declarations contradict the Rule
30(b)(6) designee’s testimony. Pl.’s
Objections to Defs.’ Evidence ISO Opp’n to Mot.
for Class Certification (“Objections”), ECF No.
53. She requests that the Court strike the declarations in
their entirety. Id. at 14:9-12.
motion for class certification, the Court may consider all
material evidence submitted by the parties to determine
whether the Rule 23 requirements are satisfied. Blackie
v. Barrack, 524 F.2d 891, 900-01 (9th Cir. 1975).
“[T]he Court makes no findings of fact and announces no
ultimate conclusions on Plaintiff[’s] claims, ”
and it “may consider evidence that may not be
admissible at trial.” Keilholtz v. Lennox Hearth
Prods. Inc., 268 F.R.D. 330, 337 n.3 (N.D. Cal. 2010).
extent the Court considers any statement in the declarations
to which Plaintiff objects, Plaintiff has not shown any
actual contradictions. Plaintiff’s objections are thus
OVERRULED. Plaintiff’s remaining objections-e.g., lacks
foundation, lacks personal knowledge, speculation, vague and
ambiguous, and improper legal opinion or conclusion-concern
findings of fact, ultimate conclusions on Plaintiff’s
claims, or admissibility, and these objections are premature
at the class certification stage. Lastly, Plaintiff states in
passing that Defendants did not provide her with enough time
to take the declarants’ depositions. Objections 4:1-2
(citing Decl. of Piya Mukherjee ¶ 4, ECF No. 53-1).
Plaintiff does not cite legal authority or provide facts
sufficient for the Court to evaluate this argument, and her
objection on timing grounds is OVERRULED as well.
Plaintiff’s Motion for Class Certification
moves the Court to certify the following two classes: (1) all
individuals who are or previously were employed by Defendants
as nonexempt employees during October 21, 2010, to the
present (the “Class Period”), for (a) failure to
pay overtime wages under the UCL and California Labor Code
section 510 (the “overtime claim”), and (b)
“failure to put in place a lawful meal period policy
applicable up to the change in policy occurring in October
2014” under the UCL (the “meal period
claim”), Pl.’s Mem. of P. & A. ISO Mot. for
Class Certification (“Mot.”) 11:7-13, ECF No.
44-1; and (2) a subclass of Healthcare Specialist and Service
Representative employees for failure to pay reporting time
wages under the UCL (the “reporting time claim”),
Cal. Code Regs. tit. 8, § 11040, subd. 5(B); Mot.
2:16-18, 7:4-17, 11:4-7. She also seeks certification of
derivative claims for waiting time penalties and wage
statement penalties based on the overtime, meal period, and
reporting time claims. Mot. 11:13-18. The derivative claims can
only proceed on a class-wide basis if the Court certifies the
underlying overtime, meal period, and reporting time claims.
See Jimenez v. Allstate Ins. Co., No. LA CV10-08486
JAK, 2012 WL 1366052, at *16 (C.D. Cal. Apr. 18, 2012),
aff’d (Sept. 3, 2014).
certification is governed by Rule 23. “Parties seeking
class certification bear the burden of demonstrating that
they have met each of the four requirements of [Rule] 23(a)
and at least one of the requirements of Rule 23(b).”
Ellis v. Costco Wholesale Corp., 657 F.3d 970,
979-80 (9th Cir. 2011). Before certifying a class, the trial
court must conduct a “rigorous analysis” to
determine whether the party seeking ...