United States District Court, E.D. California
JOHN PEREZ and on behalf of all other similarly situated individuals, Plaintiff,
LEPRINO FOODS COMPANY, a Colorado Corporation; LEPRINO FOODS DAIRY PRODUCTS COMPANY, a Colorado Corporation; and DOES 1-50, inclusive, Defendants.
ORDER DISCHARGING ORDER TO SHOW CAUSE
30, 2017, this Court ordered Plaintiff John Perez
(“Perez”) to show cause why this action should
not be stayed in light the stay imposed in the consolidated
Finder v. Leprino, Case No. 1:13-cv-2059-AWI-BAM,
Doc. 81 (E.D. Cal. Jan. 1, 2017) action,  and the apparent
overlap in claims between the present action and
Finder. Defendants Leprino Foods Company and Leprino
Foods Dairy Products Company (collectively
“Leprino”) were permitted to file briefing in
response to the order to show cause. Between issuance of the
order to show cause and the parties' filing of their
responses, Perez filed an Amended Complaint. Doc. 10.
Thereafter, Perez and Leprino both filed responses to the
order to show cause within the time permitted.
following reasons, the Court will discharge the order to show
cause and decline to issue a stay of this action.
November 15, 2013, Jerrod Finder (“Finder”) filed
a wage and hour class action against Leprino Foods Company
and Leprino Foods Dairy Products Company (collectively
“Leprino”), alleging California Labor Code
violations including failures to provide a second meal break
or accurate itemized statements, and waiting time violations,
as well as Unfair Business Practices Act violations and
Private Attorneys General Act claims based on the substantive
violations. The putative class definition in the
Finder action includes all non-exempt employees of
Leprino between November 15, 2009 and November 15, 2013.
See Doc. 13 at 7.
January 21, 2015, Jonathon Talavera (“Talavera”)
filed a wage and hour class action against Leprino,
originally alleging, (1) claims relating to Leprino's
donning and doffing procedure for required sanitary gear, (2)
the same second meal period denial claim as Finder, and (3)
claims for failure to pay all hours worked, overtime, and
wages upon termination (based on both (a) the second meal
period and rest period denials, and (b) the donning and
doffing related claims). The putative class definition in the
Talavera action includes all non-exempt employees of
Leprino between January 21, 2011 and January 21, 2015.
See Doc. 13 at 7. The Court consolidated the two
actions on November 21, 2016. Finder v. Leprino,
Case No. 1:13-cv-2059-AWI-BAM, Doc. 63. In the same order,
this Court noted that Talavera appeared “to
have abandoned his donning and doffing claims” in
seeking class certification. Id. at Doc. 63 at
On January 20, 2017, the Court stayed the consolidated
action. Id. at Doc. 81. In imposing the stay, the
Court noted that in proceeding forward on the consolidated
Finder action there existed a risk of
“conduct[ing] discovery and motions practice over
discovery-related matters that may be rendered moot by the
Ninth Circuit in resolving the interlocutory appeal.”
Id. at 7. The claims regarding failure to pay
overtime, wage statement violations, and failure to pay wages
upon termination were largely dependent on meal period
premiums being treated as wages rather than penalties-the
subject of the interlocutory appeal now before the Ninth
April 13, 2017, counsel for Talavera filed Perez v.
Leprino-a new putative class action in Kings County
Superior Court against Leprino, alleging claims similar to
those alleged in the Talavera action.
Compare Doc. 1 at 11-32 with Talavera v.
Leprino, 1:15-cv-105-AWI-BAM, Doc. 13-1. That action was
removed to this Court on May 18, 2017, and reassigned to the
undersigned on May 24, 2017. Doc. 6. Perez filed an amended
complaint on June 5, 2017, alleging the same causes of action
and clarifying the factual bases for the claims. Doc. 10.
Perez makes clear the underlying factual basis of his claims:
putative class members are (1) required to engage in
necessary unpaid “pre- and post- shift work activities
… such as donning and doffing sanitary gear…,
walking to production lines, waiting in line to sanitize, and
waiting for [sanitary gear] and/or supplies” and (2)
required to “remain on call during meal and rest
periods” or work through meal breaks. Doc. 10 at
¶¶ 5-11. The putative class definition for the
Perez action is narrower than Finder and
Talavera. It includes all non-exempt employees at
Leprino's Lemoore East facility from April 13, 2013 to
April 13, 2017. Doc. 10 at ¶ 3.
district court's power to control its docket includes
broad discretion to grant a Landis stay-a stay in
the proceedings pending resolution of other actions that bear
on the case. Landis v. North American Co., 299 U.S.
248, 254 (1936); Errington v. Time Warne Cable Inc.,
2016 WL 2930696, *3-4 (C.D. Cal. May 18, 2016); Larroque
v. First Advantage Lns Screening Solutions, Inc., 2016
WL 39787, *2 (N.D. Cal. Jan. 4, 2016); see Leyva v.
Certified Grocers of Cal., Ltd., 593 F.2d 857 863 (9th
Cir. 1979) (“A trial court may, with propriety, find it
is efficient for its own docket and the fairest course for
the parties to enter a stay of an action before it, pending
resolution of independent proceedings which bear upon the
case.”) In determining whether to grant such a stay,
the Ninth Circuit requires a district court to consider
“the competing interests which will be affected by the
granting or refusal to grant a stay must be weighed. Among
those competing interests are [(1)] the possible damage which
may result from the granting of a stay, [(2)] the hardship or
inequity which a party may suffer in being required to go
forward, and [(3)] the orderly course of justice measured in
terms of the simplifying or complicating of issues, proof,
and questions of law which could be expected to result from a
stay.” Lockyer v. Mirant Corp, 398 F.3d 1098,
1110 (9th Cir. 2005) (quoting CMAX, Inc. v. Hall,
300 F.3d 265, 268 (9th Cir 1962)) (internal quotation marks
omitted). Moreover, “[a] stay should not be granted
unless it appears likely that the other proceedings will be
concluded within a reasonable time in relation to the urgency
of the claims presented to the Court.” Id.
(quoting Leyvla, 593 F.2d at 864) (internal
quotation marks omitted).
“proponent of a stay bears the burden of establishing
its need.” Clinton v. Jones, 520 U.S. 681, 708
(1997) (citing Landis, 299 U.S. at 255). If there is
“even a fair possibility” of harm to the opposing
party, the moving party “must make out a clear case of
hardship or inequity in being required to go forward.”
Landis, 299 U.S. at 255; Lockyer v. Mirant
Corp., 398 F.3d 1098, 1112 (9th Cir. 2005).
response to the order to show cause, Leprino contends that
“Perez presents substantially similar
allegations to those in Finder and
Talavera.” Doc. 13 at 6. Leprino emphasizes to
the Court that Perez alleges violations of the same
statutes allegedly violated in the consolidated
Finder action which partially overlaps in class
period. Leprino is correct that Perez and the
consolidated Finder action allege violation of the
same statutes. However, the Finder action was not
stayed because of the statutes that were alleged to have been
violated. The Finder action was stayed because much
of the litigation could be mooted by the Ninth Circuit's
value of Perez's first through third, fifth, and sixth
causes of action (failure to pay minimum wages, failure to
compensate for all hours worked, failure to pay overtime
wages, waiting time penalties, and wage statement violations)
alleged in the Perez action certainly could be
impacted by the question now pending before the Ninth Circuit
Court of Appeals in Finder- “whether failure
to itemize or pay ‘meal period premiums'
constitutes failure to itemize or pay
‘wages.'” Finder v. Leprino, Case
No. 1:13-cv-2059-AWI-BAM, Doc. 81 at 2. For instance, if the
Ninth Circuit decides that meal period premiums are wages,
the number of hours worked and therefore the number of
overtime hours worked, increases. However, if the Ninth
Circuit comes to the contrary conclusion, fewer overtime
hours were due.
said, none of those claims appear to be dependent on the
question before the Ninth Circuit. Even if meal period
premiums are not appropriately considered wages, the unpaid
pre-and post-shift task allegations alone support Perez's
claims for failure to pay minimum wages, failure to
compensate for all hours worked, failure to pay overtime
wages, waiting time penalties, and wage statement violations.
None of Perez's claims are wholly derivative of argument
that unpaid meal period premiums should be treated as unpaid
wages. Moreover, it does not appear that the discovery
required in this case-unlike Finder and
Talavera-could be impacted in any way by the Ninth
Circuit's determination. Regardless of whether meal
period premiums are wages or penalties, the other factual
bases for the wage payment, overtime, waiting time, and wages
statement claims permit discovery in those areas. Similarly,
regardless of whether meal period premiums are wages or
penalties, discovery regarding the frequency of those
violations is appropriate. Guifu Li v. A Perfect
Franchise, Inc., ...