Christopher Sherman v. Albertsons LLC ( 2024 )

O 1 2 3 4 5 6 7 8 United States District Court 9 Central District of California 10 11 CHRISTOPHER SHERMAN et al., Case № 2:23-cv-06377-ODW (RAOx) 12 Plaintiffs, ORDER DENYING MOTION FOR 13 v. CLASS CERTIFICATION [30] 14 ALBERTSON’S, LLC et al. 15 Defendants. 16 17 I. INTRODUCTION 18 Plaintiffs Christoper Sherman, Peter Ruiz, Richard Ancheta, and Michael 19 Raziano bring this putative class action against Defendant Albertson’s LLC, asserting 20 claims for invasion of privacy and violation of California wage and hour laws. (First 21 Am. Compl. (“FAC”), ECF No. 26.) Plaintiffs now move for class certification 22 pursuant to Federal Rules of Civil Procedure (“Rule” or “Rules”) 23(b)(1)(A), 23 23(b)(2), and 23(b)(3). (Mot. Class Certification (“Mot.” or “Motion”), ECF No. 30.) 24 The Motion is fully briefed. (See Opp’n, ECF No. 36; Reply, ECF No. 39.) For the 25 reasons discussed below, the Court DENIES Plaintiffs’ Motion.1 26 27 28 1 Having carefully considered the papers filed in connection with the Motion, the Court deemed the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. 1 II. BACKGROUND 2 At all material times, Plaintiffs worked for Defendant as non-exempt 3 transportation drivers within Los Angeles and Orange Counties in California, 4 operating out of the Irvine and Brea Distribution Centers (“IDC” and “BDC,” 5 respectively). (FAC ¶¶ 1–3.) Plaintiffs assert that Defendant “had a consistent policy 6 and practice” of violating California labor laws, including requiring Plaintiffs to work 7 off-the-clock for pre-shift route-bidding, pre- and post-shift security checks, and 8 COVID screenings. (Id. ¶¶ 13–17, 19–26.) Finally, Plaintiffs assert that Defendant 9 misrepresented to Plaintiffs that the DriveCam Video System (“DriveCam”), installed 10 in Defendant’s trucks pursuant to the drivers’ union’s Collective Bargaining 11 Agreement (“CBA”), would only record when triggered (hard braking, swerving, or 12 collision), when in fact the cameras were always recording. (Id. ¶ 18.) 13 Based on the above assertions, Plaintiffs initiated this putative class action 14 against Defendant alleging invasion of privacy and violations of California wage and 15 hour laws. (Id. ¶¶ 36–138.) Plaintiffs allege ten causes of action: (1) failure to 16 reimburse business expenses; (2) failure to provide accurate wage statements; 17 (3) failure to timely pay wages during employment; (4) failure to timely pay wages on 18 separation; (5) violation of California’s Unfair Competition Law (“UCL”); 19 (6) invasion of privacy; (7) failure to pay minimum wage; (8) failure to provide meal 20 and rest periods; (9) Private Attorneys General Act; and (10) failure to provide sick 21 leave pursuant to San Diego and Los Angeles ordinances. (Id.)2 22 In the First Amended Complaint, Plaintiffs plead one main “Plaintiff Class” and 23 four subclasses: “Overtime Wage Subclass,” “Unreimbursed Business Expense 24 Subclass,” “Wage Statement Subclass,” and “Final Wages Subclass.” (Id. ¶ 32.) 25 2 Notably, Plaintiff Raziano brought a previous class action against Albertson’s raising most of the 26 same claims as here. See Raziano v. Albertson’s LLC, Case No. 2:19-cv-04373-JAK (ASx), 2021 WL 3472858, at *1 (C.D. Cal. July 15, 2021). The parties in Raziano resolved the case in a 27 court-approved class action settlement. Id. Class members in Raziano released their claims through 28 October 13, 2020. Id. at *2. Thus, Plaintiffs claims in this case commence not earlier than October 14, 2020. (See Reply 4.) 1 However, in their Motion, Plaintiffs seek to certify five “damages classes” pursuant to 2 Rule 23(b)(3): “Privacy Claim,” “Reimbursement Claim,” “Off-the-Clock UCL 3 Claim,” “Two Derivative Claims,” and “Failure to Provide Sick Leave.” (Notice 4 Mot. 3, 7–8, ECF No. 30.) Additionally, Plaintiffs seek to certify each of the five 5 damages classes as a “declaratory and/or injunctive relief class[],” pursuant to 6 Rule 23(b)(1)(A) and 23(b)(2). (Id. at 4–5; Mot. 17–18.)3 7 III. LEGAL STANDARD 8 Whether to grant class certification is within the discretion of the court. 9 Bateman v. Am. Multi-Cinema, Inc., 623 F.3d 708, 712 (9th Cir. 2010); see Fed. R. 10 Civ. P. 23. A cause of action may proceed as a class action if a plaintiff meets the 11 threshold requirements of Rule 23(a): numerosity, commonality, typicality, and 12 adequacy of representation. Fed. R. Civ. P. 23(a); Mazza v. Am. Honda Motor Co., 13 666 F.3d 581, 588 (9th Cir. 2012), overruled on other grounds by Olean Wholesale 14 Grocery Coop., Inc. v. Bumble Bee Foods LLC, 31 F.4th 651 (9th Cir. 2022). In 15 addition, a party seeking class certification must meet one of the three criteria listed in 16 17 3 The parties go to war with needless objections to briefing and evidence. The Court OVERRULES all evidentiary objections, with the exception of Defendant’s specific hearsay objections to 18 Plaintiffs’ declarations and Plaintiffs’ relevance objections to certain of Defendants’ declarations, 19 which the Court SUSTAINS. (Def.’s Evid. Objs., ECF Nos. 36-2 to 36-11; Pls.’ Evid. Objs., ECF Nos. 40 to 40-22.) 20 The Court STRIKES Plaintiffs’ Proposed Trial Management Plan, (ECF No. 31-10), and 21 Defendant’s objections thereto, (ECF No. 36-1), as both parties improperly utilize this filing to 22 reargue their positions and circumvent the Court’s limitations on briefing. 23 The Court SUSTAINS Defendant’s objection to Plaintiffs’ overlong Reply brief but DENIES Defendant’s request to strike. (Def.’s Obj. Reply, ECF No. 43.) However, the Court does not 24 consider the Reply beyond the established word limit. (See Pls.’ Resp. 3, ECF No. 44 (conceding 25 that Plaintiffs exceeded the word limit at page 10, line 19).) 26 Finally, the Court GRANTS Plaintiffs’ Request for Judicial Notice, (Pls.’ Req. Judicial Notice ISO Reply, ECF No. 39), because the Court “may take notice of proceedings [and related filings] in other 27 courts, both within and without the federal judicial system, if those proceedings have a direct 28 relation to matters at issue,” U.S. ex rel Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992). 1 Rule 23(b). Wal–Mart Stores, Inc. v. Dukes, 564 U.S. 338, 345 (2011). “[T]he failure 2 [to meet] any one of Rule 23’s requirements destroys the alleged class action.” 3 Rutledge v. Elec. Hose & Rubber Co., 511 F.2d 668, 673 (9th Cir. 1975); see Amchem 4 Prods., Inc. v. Windsor, 521 U.S. 591, 614 (1997) (noting that plaintiff bears burden 5 of affirmatively satisfying each element of the Rule 23 analysis). 6 “Rule 23 does not set forth a mere pleading standard,” Dukes, 564 U.S. at 350, 7 and a party may not rest on mere allegations, Doninger v. Pac. Nw. Bell, Inc., 8 564 F.2d 1304, 1309 (9th Cir. 1977). Rather, Plaintiffs must affirmatively establish 9 Rule 23’s criteria are satisfied by a preponderance of the evidence. Olean, 31 F.4th 10 at 665, cert. denied sub nom., StarKist Co. v. Olean Wholesale Grocery Coop., Inc., 11 143 S.Ct. 424 (2022). This showing is not onerous: “a district court need only 12 consider material sufficient to form a reasonable judgment on each Rule 23(a) 13 requirement.” Sali v. Corona Reg’l Med. Ctr., 909 F.3d 996, 1005 (9th Cir. 2018) 14 (alteration and internal quotation marks omitted). 15 Nevertheless, a district court must perform a “rigorous analysis” to ensure that 16 the plaintiff has satisfied each of Rule 23(a)’s prerequisites. Dukes, 564 U.S. at 351; 17 Ellis v. Costco Wholesale Corp., 657 F.3d 970, 980 (9th Cir. 2011). In many cases, 18 “that ‘rigorous analysis’ will entail some overlap with the merits of the plaintiff’s 19 underlying claim. That cannot be helped.” Dukes, 564 U.S. at 351. The district court 20 may consider the merits only to the extent that they overlap with the requirements of 21 Rule 23 and “not to determine whether class members could actually prevail on the 22 merits of their claims.” Ellis, 657 F.3d at 983 n.8; see Dukes, 564 U.S. at 350–52. 23 When resolving factual disputes, even in the context of a motion for class 24 certification, district courts must consider “the persuasiveness of the evidence 25 presented.” Ellis, 657 F.3d at 982. 26 IV. DISCUSSION 27 Plaintiffs move to certify Plaintiffs’ proposed classes. However, Plaintiffs fail 28 to clearly define any class or subclass in the Motion. To the extent it is possible to 1 identify and articulate a definable class in the Motion, Plaintiffs fail to establish 2 commonality, predominance, or a basis for certification under any prong of 3 Rule 23(b). 4 A. Class Definition 5 A class proposed for certification must be “sufficiently definite to conform to 6 Rule 23.” Briseno v. ConAgra Foods, Inc., 844 F.3d 1121, 1124 n.4 (9th Cir. 2017) 7 (quoting Probe v. State Teachers’ Ret. Sys., 780 F.2d 776, 780 (9th Cir. 1986)). It 8 should be precise and objective, i.e., “definite enough so that it is administratively 9 feasible for the court to ascertain whether an individual is a member.” O’Connor v. 10 Boeing N. Am., Inc., 184 F.R.D. 311, 319 (C.D. Cal. 1998). Class treatment is not 11 appropriate if “the court must determine the merits of an individual claim to determine 12 who is a member of the class.” Johns v. Bayer Corp., 280 F.R.D. 551, 555 (S.D. Cal. 13 2012). Such a proposed class is considered impermissibly “fail safe” because it is 14 “defined to include only those individuals who were injured by the allegedly unlawful 15 conduct.” Olean, 31 F.4th at 669 n.14. 16 In the First Amended Complaint, Plaintiffs define one class and four subclasses. 17 (FAC ¶ 32.) However, in the Motion, Plaintiffs do not define any class at all. (See 18 generally Mot.) Rather, in the Motion, Plaintiffs identify five “damages” subclasses, 19 and identify the same five as “declaratory and/or injunctive relief” subclasses. (See 20 Notice Mot. 4–8.) However, Plaintiffs do not define the subclasses in the Motion, and 21 instead only describe them by the type of relief Plaintiffs seek. (See id.) Moreover, 22 the subclasses in the Motion do not match the subclasses defined in the First Amended 23 Complaint. (Compare Notice Mot. 4–8, with FAC ¶ 32.) It is therefore difficult to 24 ascertain what class or classes Plaintiffs seek to certify in the Motion. 25 Plaintiffs protest in Reply that they “clearly defined the Class” and “[i]t consists 26 of all non-exempt transportation drivers employed by Defendant in California at any 27 time in the four years preceding the filing of the operative complaint.” (Reply 10.) As 28 this definition substantially aligns with the “Plaintiff Class” identified in the First 1 Amended Complaint, (FAC ¶ 32), the Court accepts Plaintiffs’ Motion as seeking to 2 certify this defined “Plaintiff Class.” 3 However, regarding subclasses, even if the Court looked to the First Amended 4 Complaint for definitions, the subclasses defined there either do not appear in the 5 Motion or they are impermissibly failsafe. Plaintiffs define four subclasses in the First 6 Amended Complaint: 7 (1) “Overtime Wage Subclass,” 8 (2) “Unreimbursed Business Expense Subclass,” 9 (3) “Wage Statement Subclass,” and 10 (4) “Final Wages Subclass.” 11 (FAC ¶ 32.) In the Notice of Motion, Plaintiffs list five subclasses seeking damages 12 and declaratory/injunctive relief: 13 (1) “Reimbursement Claim,” 14 (2) “Off-the-Clock UCL Claim,” 15 (3) “Two Derivative Claims” (wage statements and timely wages), 16 (4) “Failure to Provide Sick Leave,” and 17 (5) “Privacy Claim.” 18 (Notice Mot. 4–8.) Nothing in Plaintiffs’ Motion supports that Plaintiffs are seeking 19 to certify an “Overtime Wage Subclass.” (See generally Mot.) Similarly, nothing in 20 the First Amended Complaint provides a definition for an “Off-the-Clock UCL 21 Claim” subclass, a “Failure to Provide Sick Leave” subclass, or a “Privacy Claim” 22 subclass. (See generally FAC.) Accordingly, the Court does not consider these four 23 subclasses among Plaintiffs’ motion for certification. 24 That leaves the “Reimbursement Claim” and “Two Derivative Claims” 25 subclasses for which Plaintiffs potentially seek certification in both the First Amended 26 Complaint and the Motion. Plaintiffs define the “Unreimbursed Business Expense 27 Subclass” in the First Amended Complaint as “All Plaintiff Class members who were 28 not reimbursed for business-related expenses incurred in the discharge of duties for 1 Defendant[].” (FAC ¶ 32.) This subclass is plainly “defined to include only those 2 individuals who were injured by the allegedly unlawful conduct,” i.e., not reimbursed, 3 and is therefore impermissibly fail safe. See Olean, 31 F.4th at 669 n.14; see also 4 Ruiz Torres v. Mercer Canyons Inc., 835 F.3d 1125, 1138 (9th Cir. 2016) (noting a 5 fail safe class is “one that is defined so narrowly as to preclude[ ] membership unless 6 the liability of the defendant is established” (internal quotation marks omitted)). 7 Plaintiffs’ “Two Derivative Claims” subclass is equally fail safe in definition and 8 therefore impermissible. (See FAC ¶ 32.) 9 Accordingly, the Court accepts Plaintiffs’ Motion as seeking to certify only the 10 “Plaintiff Class,” “all non-exempt transportation drivers employed by Defendant in 11 California at any time in the four years preceding the filing of the operative 12 complaint,” as either a damages class pursuant to Rule 23(b)(3), or a 13 declaratory/injunctive relief class pursuant to Rule 23(b)(1)(A) or (b)(2), or both. (See 14 Mot. 1; FAC ¶ 32; Reply 10.) 15 B. Commonality Rule 23(a)(2) & Predominance Rule 23(b)(3) 16 Plaintiffs contend common questions of law and fact predominate because each 17 claim turns on Defendant’s class wide policies and practice. (Mot. 9.) Plaintiffs fail 18 to meet their burden to establish both commonality and predominance. 19 Commonality is required for class certification and is only satisfied if “there are 20 questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). The 21 commonality requirement has “been construed permissively, and all questions of fact 22 and law need not be common to satisfy the rule.” Ellis, 657 F.3d at 981 (alterations 23 and internal quotation marks omitted). Nevertheless, “it is insufficient to merely 24 allege any common question.” Id. As the United States Supreme Court has explained, 25 “[w]hat matters to class certification . . . is not the raising of common ‘questions’— 26 even in droves—but rather, the capacity of a class-wide proceeding to generate 27 common answers apt to drive the resolution of the litigation.” Dukes, 564 U.S. at 350 28 (emphasis in original). 1 Although the commonality inquiry overlaps with Rule 23(b)(3)’s predominance 2 inquiry, see In re AutoZone, 289 F.R.D. 526, 533 n.10 (N.D. Cal. 2012), merely 3 meeting the commonality requirement is insufficient to satisfy predominance, Hanlon 4 v. Chrysler Corp., 150 F.3d 1011, 1022 (9th Cir. 1998), overruled on other grounds by 5 Dukes, 564 U.S. 338. “The Rule 23(b)(3) predominance inquiry tests whether 6 proposed classes are sufficiently cohesive to warrant adjudication by representation.” 7 Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623 (1997). “This analysis presumes 8 that the existence of common issues of fact or law have been established pursuant to 9 Rule 23(a)(2)” and focuses on “the relationship between the common and individual 10 issues.” Hanlon, 150 F.3d at 1022 (emphasis added). “[C]ommon issues predominate 11 in those cases where the plaintiff proffers sufficient evidence to demonstrate that an 12 unofficial policy exists and applies uniformly to all class members.” Campbell v. 13 Vitran Exp. Inc., No. 2:11-cv-05029-RGK (SHx), 2015 WL 7176110, at *7–8 14 (C.D. Cal. Nov. 12, 2015). 15 The Court finds that a class-wide proceeding would not generate common 16 answers apt to drive the resolution of this case, and the individual inquiries required to 17 resolve Plaintiffs’ claims would predominate over any common issues. Plaintiffs 18 contend Defendant has uniform policies of failing to reimburse business-related 19 expenses, failing to provide paid sick leave in compliance with local ordinances, 20 unfair competition, and invasion of privacy, and the common questions regarding 21 these policies will lead to common answers, which will resolve Plaintiffs claims. (See 22 Mot. 9–14.) In support of the alleged uniform policies, Plaintiffs submit the 23 declarations of named Plaintiffs, which repeat the vague, boilerplate allegations from 24 the First Amended Complaint. (Compare, e.g., Decl. Richard Ancheta ISO Mot. 25 (“Ancheta Decl.”) ¶ 32, ECF No. 30-2, with FAC ¶ 14.) 26 Regarding the reimbursement claim, for instance, Plaintiffs argue that Class 27 members “were required to spend money on work-related expenses without bring 28 reimbursed,” including hotel layovers, personal cellphone expenses, work gloves, and 1 work boots. (Mot. 2–5.) To support this argument, Plaintiffs submit Ancheta’s 2 declaration parroting the FAC: “At all relevant times, [Defendant] had a consistent 3 policy and practice of failing to reimburse me and similarly-situated [sic] employees 4 for all reasonable and necessarily incurred business-related expenses,” including 5 layovers, personal cellphones used for work, work gloves, and work boots. (Ancheta 6 Decl. ¶ 32; see FAC ¶ 14 (“Defendant[] had a consistent policy and practice of failing 7 to reimburse Plaintiffs and similarly-situated [sic] employees for all reasonable and 8 necessarily in[c]ur[r]ed business-related expenses . . . .”).) The other named Plaintiffs 9 submit virtually identical declarations attesting to identical FAC allegations. (See 10 Decl. Michael Raziano ISO Mot. (“Raziano Decl.”) ¶ 32, ECF No. 30-3; Decl. Peter 11 Ruiz ISO Mot. (“Ruiz Decl.”) ¶ 32, ECF No. 30-4; Decl. Christopher Sherman ISO 12 Mot. (“Sherman Decl.”) ¶ 32, ECF No. 30-5.) 13 Plaintiffs also submit the declarations of four putative class members that are 14 marginally better, stating identically that “Defendant[] had a consistent policy and 15 practice of failing to reimburse me and similarly-situated [sic] employees for all 16 reasonable and necessarily incurred business-related expenses,” and also that “Drivers 17 like myself had to spend money on work-related expenses without getting 18 reimbursed.” (Decl. Stephen Noel Ilg ISO Mot. Ex. C (“Hyatt Decl.”) ¶¶ 20–21, ECF 19 Nos. 31, 31-3; id. Ex. D (“Bowman Decl.”) ¶¶ 20–21, ECF No. 31-4; id. Ex. E (“Allen 20 Decl.”) ¶¶ 20–21, ECF No. 31-5; id. Ex. F (“Serrano Decl.”) ¶¶ 20–21, ECF 21 No. 31-6.) Through this evidence, Plaintiffs establish only what they have alleged. 22 In contrast, Defendant counters with highly specific, detailed declarations based 23 on personal knowledge from Karen Smith, Albertson’s Transportation Manager for the 24 IDC, Scott Dukes, Albertson’s Transportation Manager for the BDC, and Lana Sykes, 25 Alberton’s Human Resources Manager. (See Decl. Karen Smith ISO Opp’n (“Smith 26 Decl.”), ECF No. 36-36; Decl. Scott Dukes ISO Opp’n (“Dukes Decl.”), ECF 27 No. 36-48; Decl. Lana Sykes ISO Opp’n (“Sykes Decl.”), ECF No. 36-43.) Again 28 using the reimbursement claim as an example, these individuals submit declaration 1 testimony that Defendant’s uniform policy is to reimburse employees, including 2 drivers, for all necessary and reasonable work-related expenses. (See Smith Decl. 3 ¶¶ 10–20; Dukes Decl. ¶¶ 9–18.) 4 Defendant’s declarations establish the following facts. Defendant’s truck 5 drivers are covered by CBAs, which dictate many of the conditions at issue here. 6 (Sykes Decl. ¶¶ 5–8; Dukes Decl. ¶¶ 4–8; Smith Decl. ¶ 12.) For hotel layovers, 7 Defendant provides subsistence payments of $90 per day, as mandated by the CBAs. 8 (Smith Decl. ¶¶ 12–16; Dukes Decl. ¶¶ 9–11.) Should a driver need to exceed that 9 subsistence payment, Defendant provides an expense reimbursement form to all 10 drivers. (Smith Decl. ¶ 18; Dukes Decl. ¶ 12.) Defendant evaluates reimbursement 11 requests on a case-by-case basis. (Smith Decl. ¶¶ 11, 17.) For personal cellphones, 12 Defendant does not have a policy that requires drivers to use their personal cell phones 13 for work purposes; to the contrary, Defendant has policies prohibiting or discouraging 14 the use of personal cell phones. (See Smith Decl. ¶ 5; Dukes Decl. ¶¶ 15–16; Sykes 15 Decl. ¶¶ 9–11, Ex. 3 (“Associate Handbook,” stating drivers “are not permitted to use 16 personal mobile devices . . . in a manner that interferes with the performance of their 17 duties”), ECF No. 36-46.) Defendant provides an on-board two-way communications 18 system in its trucks which allows drivers to communicate with dispatch or access 19 turn-by-turn navigation through Google Maps, eliminating the need for any driver to 20 use a personal cell phone while driving. (Smith Decl. ¶¶ 5–9; Sykes Decl. ¶¶ 12–14; 21 Dukes Decl. ¶¶ 17–18.) Finally, regarding boots and gloves, Defendant’s truck drivers 22 including Plaintiffs are not required to wear work gloves or work boots. (Smith Decl. 23 ¶¶ 19–20; Dukes Decl. ¶¶ 13–14.) Nevertheless, Defendant provides work gloves to 24 those drivers that want them, eliminating any perceived need for a driver to purchase 25 their own. (Smith Decl. ¶ 19; Dukes Decl. ¶ 13.) 26 In cases of factual disputes such as this, where party A says “yes” and party B 27 says “no,” the Court is charged with considering “the persuasiveness of the evidence 28 presented.” Ellis, 657 F.3d at 982 (holding that a district court should judge the 1 persuasiveness and not merely the admissibility of evidence bearing on class 2 certification). Plaintiffs, through their boilerplate, identical declarations, establish 3 little more than they have alleged. Defendant, on the other hand, provides specificity 4 and context to Plaintiffs’ claims and directly refutes each purported class-wide 5 “policy.” The Court finds Defendant’s specificity and concrete facts far more 6 persuasive than Plaintiffs’ boilerplate ambiguity, effectively defeating Plaintiffs’ 7 assertions that Defendant’s purported policies apply uniformly to the class. 8 Moreover, even if the Court were to consider the parties’ evidence as equally 9 persuasive, the evidence as a whole firmly demonstrates that the policies Plaintiffs’ 10 assert, i.e., failing to reimburse business expenses, do not apply uniformly to all 11 putative class members. Contra Campbell, 2015 WL 7176110, at *7–8 (finding 12 common issues predominated where evidence demonstrates “that an unofficial policy 13 exists and applies uniformly to all class members”). As such, to evaluate Plaintiffs’ 14 claim for reimbursement for instance, the Court will have to determine whether each 15 driver submitted a request for “necessary and reasonable” reimbursement, whether 16 Defendant improperly failed to reimburse the driver, and whether that failure 17 contravened the CBA and/or Defendant’s established policies. (See Smith Decl. 18 ¶¶ 10–11 (stating that Defendant’s policy is to reimburse “all necessary and 19 reasonable work-related expenses,” and that reimbursement requests are considered on 20 a case-by-case basis).) Far from common questions, these individual inquiries will 21 necessarily pervade the trial. 22 The above analysis applies equally to each of the claims Plaintiffs raise in the 23 Motion, including invasion of privacy and the DriveCam policy, off-the-clock work, 24 sick leave, wage statements, and timely wages. The Court declines to explicate this 25 same exhaustive analysis for each of Plaintiffs’ claims. It suffices for the purposes of 26 this Motion that Plaintiffs fail to establish commonality and predominance for each. 27 As Plaintiffs fail to meet their burden to establish commonality, they fail to 28 satisfy Rule 23(a). Therefore, certification of the class under any prong of Rule 23(b) 1 would be improper. See Rutledge, 511 F.2d at 673 (“[T]he failure of any one of 2 Rule 23’s requirements destroys the alleged class action.”)). Additionally, Plaintiffs 3 fail to meet their burden to establish predominance, meaning they fail to satisfy 4 Rule 23(b)(3). Class certification under Rule 23(b)(3), specifically, is improper for 5 this additional reason. 6 C. Rule 23(b)(1)(A) & 23(b)(2) 7 Even had Plaintiffs satisfied commonality, Plaintiffs fail to establish that the 8 Plaintiff Class could be certified under Rule 23(b)(1)(A) or 23(b)(2). 9 A class action is maintainable under Rule 23(b)(1)(A) if “prosecuting separate 10 actions . . . would create a risk of inconsistent or varying adjudications with respect to 11 individual class members that would establish incompatible standards of conduct for 12 the party opposing the class.” Rule 23(b)(1)(A) certification requires more, however, 13 “than a risk that separate judgments would oblige the opposing party to pay damages 14 to some class members but not to others or to pay them different amounts.” Zinser v. 15 Accufix Rsch. Inst., Inc., 253 F.3d 1180, 1193 (9th Cir.), amended on denial of reh’g, 16 273 F.3d 1266 (9th Cir. 2001). Certification under Rule 23(b)(1)(A) is therefore not 17 appropriate in an action for damages. Id. 18 Similarly, certification under Rule 23(b)(2) is not appropriate where the 19 putative class primarily seeks monetary damages. Id. at 1195. Rule 23(b)(2) requires 20 the defendant to have acted in a manner generally applicable to the entire class, so that 21 the appropriate relief is primarily declaratory or injunctive. Id. Thus, a class seeking 22 monetary damages may be certified pursuant to Rule 23(b)(2) only where monetary 23 damages are “merely incidental to [the] primary claim for injunctive relief.” Probe, 24 780 F.2d at 780 (emphasis added). 25 As discussed above, Plaintiffs fail to establish that Defendant’s alleged conduct 26 applies generally to the entire class. Further, the facts and circumstances of this wage 27 and hours action demonstrate that Plaintiffs’ primary intent is to recover monetary 28 damages, not declaratory or injunctive relief. For each damages subclass Plaintiffs identify in the Motion, Plaintiffs identify an identical subclass for 2 || declaratory/injunctive relief. (See Notice Mot. 4-8.) If that were not sufficient to 3 | demonstrate Plaintiffs’ primary aim of recovering monetary damages, Plaintiffs make it clear in their Prayer for Relief where they seek sixteen types of monetary damages 5 || and merely two types of injunctive relief. (See FAC, Prayer for Relief 4] 1-19.) As 6 || such, monetary damages are not “merely incidental” to the claim for injunctive relief. 7 Accordingly, certification under either Rule 23(b)(1)(A) or (b)(2) is 8 | inappropriate for these additional reasons. 9 Vv. CONCLUSION 10 For the reasons discussed above, the Court DENIES Plaintiffs’ Motion for 11 || Class Certification. (ECF No. 30.) 12 13 IT IS SO ORDERED. 14 15 August 7, 2024 6 he. 18 OTIS D GHT, II 9 UNITED STATES’DISTRICT JUDGE 20 21 22 23 24 25 26 27 28