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Culley v. Lincare Inc.

United States District Court, E.D. California

August 10, 2016




         This 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”).[1] 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 are OVERRULED.[2]


         Defendants 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. Id.

         In her 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 first.


         A. Defendants’ Objection and Counter-Motion to Strike the Declaration of Eric Lietzow

         Defendants 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.[3] 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).

         Defendants 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.

         First, 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).

         Second, 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.

         Defendants 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.

         Local 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.

         B. Defendants’ Objections and Counter-Motion Strike Declarations of Aaron Huff and Michael Zachwieja

         Defendants 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).

         C. Plaintiff’s Objections to Defendants’ Evidence

         Plaintiff 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)[4] 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.

         On a 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).

         To the 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.

         D. Plaintiff’s Motion for Class Certification

         Plaintiff 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.[5] 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).

         Class 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 ...

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