United States District Court, N.D. California
ORDER DENYING PLAINTIFFS' MOTION FOR CLASS
M. CHESNEY United States District Judge.
the Court is the "Motion for Class Certification, "
filed November 11, 2016, by plaintiffs Lilliana Sanchez,
Yolanda Camey and Juan Carlos Ramirez. Defendant Capital
Contractors, Inc. ("Capital") has filed opposition,
to which plaintiffs have replied. Additionally, Capital, with
leave of court, has filed a surreply. Having read and
considered the parties' respective written submissions,
the Court hereby rules as follows.
operative complaint, the Second Amended Complaint
("SAC"), plaintiffs allege that Capital
"provides cleaning services to major industrial clients
throughout California." (See SAC ¶ 11.)
Plaintiffs further allege that each of them entered into an
"Independent Contractor Agreement"
("ICA"), under which each such plaintiff agreed to
provide certain services to Capital (see SAC
¶¶ 18-19, 26); specifically, plaintiffs allege,
they agreed to "perform the janitorial services
themselves for Capital's clients and/or engage janitorial
workers . . . to perform the janitorial services for
Capital's clients" (see SAC ¶ 12).
allege that Capital, consistent with the title of the written
agreement each plaintiff signed, classified plaintiffs as
"independent contractors." (See id.)
According to plaintiffs, each of them, during the period of
time in which they provided services to Capital, "should
have been properly classified as a non-exempt hourly employee
of Capital" (see SAC ¶¶ 14-16), and
that, during the respective periods of time in which they
state they were misclassified, Capital did not provide them
with rights available to an employee under California law,
such as paying them "overtime wages" and providing
"rest breaks" (see SAC ¶ 40).
Plaintiffs bring their claims on behalf of a putative class
consisting of persons who contracted in California to provide
"cleaning services at Capital's clients'
properties" and who were "misclassified" by
Capital as independent contractors. (See SAC ¶
42.) Plaintiffs refer to themselves and the members of the
proposed class collectively as "ICs" (see
SAC ¶¶ 12, 18-23) and seek on behalf of all
plaintiffs, both named and proposed, declaratory/injunctive
and monetary relief.
answer, Capital denies that plaintiffs and the members of the
putative class were employees. (See Answer
¶¶ 14-16, 20.)
instant motion, plaintiffs, pursuant to Rule 23 of the
Federal Rules of Civil Procedure, seek an order certifying a
class for purposes of resolving their claims, which are
defined by plaintiffs as their "entitlement to 1)
minimum and overtime wages, 2) meal and rest period periods,
3) reimbursement of business expenses and pay deductions, 4)
indemnity from Capital, 5) restitution under Cal. Bus. &
Prof. Code § 17200, et seq., 6) the adequacy of
Capital's recordkeeping and wage statement practices . .
., and 7) whether a 'good faith' dispute (so as to
avoid . . . 'waiting time' penalties) exists."
(See Pls.' Mot. at 15:18-24). The class proposed
by plaintiffs consists of "[a]ll persons who, from April
25, 2010 to final judgment, have been (a) employed by Capital
. . . pursuant to contract in the State of California to
perform cleaning services at Capital's clients'
locations; and (b) classified as an 'independent
contractor' while performing cleaning services and/or
supervising the performance of cleaning services at
Capital's clients' properties." (See
id. at 2:7-15.)
district court may not certify a class unless the plaintiff
has met the four requirements set forth in Rule 23(a):
"'(1) the class is so numerous that joinder of all
members is impracticable, (2) there are questions of law or
fact common to the class, (3) the claims or defenses of the
representative parties are typical of the claims or defenses
of the class, and (4) the representative parties will fairly
and adequately protect the interests of the class.'"
See Wal-Mart Stores v. Dukes, 564 U.S. 338, 345
(2011) (quoting Fed.R.Civ.P. 23(a)). Additionally, the
district court must find the plaintiff has "satisf[ied]
at least one of the three requirements listed in Rule
23(b)." See id. Here, plaintiffs seek
certification under Rules 23(b)(2) and 23(b)(3), the
additional requirements of which the Court first addresses,
as set forth below.
23(b)(2) provides for certification of a class where
"the party opposing the class has acted or refused to
act on grounds that apply generally to the class, so that
final injunctive relief or corresponding declaratory relief
is appropriate respecting the class as a whole."
See Fed.R.Civ.P. 23(b)(2). "Class certification
under Rule 23(b)(2) is appropriate only where the primary
relief sought is declaratory or injunctive." Zinser
v. Accufix Research Institute, Inc., 253 F.3d 1180, 1195
(9th Cir. 2001). To obtain certification under Rule 23(b)(2),
the plaintiff must show "a single injunction or
declaratory judgment would provide relief to each member of
the class." See Wal-Mart, 564 U.S. at 360.
plaintiffs seek a "judicial declaration that ICs are
employees of Capital, and corresponding injunctive relief --
a judicial order directing Capital to cease its unlawful
practice of classifying ICs as independent contractors and
failing to provide the protections afforded employees under
the California Labor Code." (See Pls.' Mot.
plaintiff who seeks to certify a class under Rule 23(b)(2)
must have standing to seek the declaratory and/or injunctive
relief sought on behalf of the class. See Bates v. United
Parcel Service, 511 F.3d 974, 983-85 (9th Cir. 2007)
("In a class action, standing is satisfied if at least
one named plaintiff meets the [standing]
requirements."). To do so, the plaintiff "must
demonstrate that he is realistically threatened by a
repetition of the violation." See Armstrong v.
Davis, 275 F.3d 849, 860-61 (9th Cir. 2001) (internal
quotation and citation omitted); see also Hodgers-Durgin
v. De La Vina, 199 F.3d 1037, 1044-45 (9th Cir. 1999)
(dismissing plaintiffs' claims for declaratory and
injunctive relief brought on behalf of class, where named
plaintiffs failed to show “likelihood of future
injury” from challenged policy).
Capital has pointed out, plaintiffs are "former alleged
employees." (See Answer at 17:5.) Plaintiffs
point to no evidence that they are "realistically
threatened" by Capital's classification decisions
and alleged violations of the California Labor Code, see
Armstrong, 275 F.3d at 860-61, as they arguably might be
if they "were in the process of seeking reinstatement to
their former positions, or seeking work from that employer,
" see Walsh v. Nevada Dep't of Human
Resources, 471 F.3d 1033, 1037 (9th Cir. 2006). Under
such circumstances, plaintiffs have failed to show that any
of them has any likelihood of being injured in the future by
Capital's practices. See id. (holding former
employee who did not claim “any interest in returning
to work” for defendant employer not entitled to seek
injunctive relief regarding workplace policies).
Consequently, plaintiffs are not entitled to seek on behalf
of a class declaratory or injunctive relief with respect to
irrespective of whether plaintiffs would be able to satisfy
the four prerequisites set forth in Rule 23(a), plaintiffs
have failed to ...