Clark v. QG Printing II, LLC ( 2020 )

Case 1:18-cv-00899-AWI-EPG Document 54 Filed 09/18/20 Page 1 of 38 1 2 UNITED STATES DISTRICT COURT 3 EASTERN DISTRICT OF CALIFORNIA 4 5 Case No. 1:18-cv-00899-AWI-EPG 6 PAUL CLARK, individually, and on behalf of other members of the general public ORDER ON PLAINTIFF’S MOTION 7 similarly situated, FOR CLASS CERTIFICATION 8 Plaintiffs, (Doc. No. 46) 9 v. 10 QG PRINTING II, LLC, a Connecticut limited liability company; 11 QUAD/GRAPHICS, INC., a Wisconsin corporation; and DOES 1 through 10, 12 inclusive, 13 Defendants. 14 15 16 17 18 Plaintiff Paul Clark has brought suit against Defendants Quad/Graphics, Inc. (“QG”) and 19 QG Printing II, LLC (“QG Printing”) in connection with alleged wage-and-hour violations at four 20 commercial printing facilities in California, including claims relating to meal breaks, rest breaks, 21 off-the-clock work and business expenses. 22 Before the Court is Plaintiff’s motion for class certification pursuant to Rule 23 of the 23 Federal Rules of Civil Procedure. See Doc. No. 46. For the reasons that follow, Plaintiff’s 24 certification motion will be granted, in part, and denied, in part. 25 BACKGROUND 26 I. Parties 27 QG is a Wisconsin corporation with commercial printing facilities throughout the United 28 States. Doc. No. 49, Part II.A.1. QG Printing is a Connecticut limited liability company and a QG Case 1:18-cv-00899-AWI-EPG Document 54 Filed 09/18/20 Page 2 of 38 1 subsidiary.1 Id. 2 QG Printing operates four facilities in California: Merced, West Sacramento, Riverside – 3 Jurupa Valley (“Jurupa Valley”), and Riverside – Box Springs (“Box Springs”). Doc. No. 49, Part 4 II.A.1. The Merced facility has both a press production area and a finishing area. Id. Employees in 5 the press production area work in crews to run large printing presses. Id. Products are bound, 6 bundled, collated and placed on pallets in the finishing area. Id. West Sacramento, Jurupa Valley 7 and Box Springs each has a press production area but no finishing area. Id. 8 Plaintiff was a non-exempt, hourly-paid press assistant in the press production area at QG 9 Printing’s Merced facility from June 2017 until April 2018.2 Doc. No. 34 ¶ 5. Plaintiff worked 10 approximately 12 hours per day, five days per week. Id. Plaintiff—and his fellow press 11 assistants—worked under the supervision of press operators. Doc. No. 46-1, Part II.B. 12 II. Procedural History 13 Plaintiff filed this class action in Merced County Superior Court on May 29, 2018, seeking 14 to represent an overarching class of several hundred non-exempt, hourly employees who worked 15 in QG Printing’s California facilities in the four-year period prior to the filing of the action. Doc. 16 No. 1. Defendant removed the action to this judicial district on June 29, 2018, id., and it was 17 assigned to this Court on July 2, 2018. Doc. No. 7. 18 The 2AC was filed on September 23, 2019 and alleges claims for violations of: (i) 19 California Labor Code (“Labor Code”) §§ 510 and 1198 (Unpaid Overtime); (ii) Labor Code §§ 20 1182.12, 1194, 1197, 1197.1, and 1198 (Unpaid Minimum Wages); (iii) Labor Code §§ 226.7, 21 512(a), and 1198 (Failure to Provide Meal Periods); (iv) Labor Code §§ 226.7 and 1198 (Failure 22 to Provide Rest Periods); (v) Labor Code §§ 226(a), 1174(d), and 1198 (Non-Compliant Wage 23 24 1 Defendants contend that Plaintiff has failed to show that QG was a joint employer for purposes of liability in this 25 action. Doc. No. 49, page 10 of 43, n.2. That issue need not be addressed—and is not addressed—in this Order. The Court’s occasional references to “Defendants” track the allegations in the Second Amended Complaint (“2AC”) (the 26 operative pleading in this action) and are not intended to convey a view on whether QG is has potential liability in connection with one of more of Plaintiff’s claims. 27 2 The Court notes that work history records filed by Plaintiff in support of the instant motion appear to show that Plaintiff’s last day of active work for QG Printing was December 5, 2017, although he apparently remained on staff 28 through April 2018 in connection with a workplace injury. Doc. No. 46-2, Ex. G. 2 Case 1:18-cv-00899-AWI-EPG Document 54 Filed 09/18/20 Page 3 of 38 1 Statements and Failure to Maintain Payroll Records); (vi) Labor Code §§ 201, 202, and 203 2 (Wages Not Timely Paid Upon Termination); (vii) Labor Code § 2802 (Unreimbursed Business 3 Expenses); (viii) Labor Code §§ 551, 552, and 558 (Failure to Provide One Day of Rest in Seven); 4 (ix) Labor Code §§ 2698, et seq. (Private Attorney General Act or “PAGA”); and (x) California 5 Business & Professions Code (“Business & Professions Code”) §§ 17200, et seq. (Unlawful or 6 Unfair Business Practices). Doc. No. 34. 7 Plaintiff now brings a motion pursuant to Rule 23(a) and Rule 23(b)(3) of the Federal 8 Rules of Civil Procedure3 to certify the overarching class and the following subclasses: 9 • First Meal Break Subclass: Putative class members who worked at least one shift of more 10 than six hours, in connection with claims that QG Printing “chronically understaffs its 11 printing facilities in California while imposing strict deadlines which impede and 12 discourage subclass members from taking, timely uninterrupted and compliant first meal 13 breaks in shifts over six hours”; 14 • Second Meal Break Subclass: Putative class members who worked at least one shift of 15 more than 12 hours, in connection with claims that Defendants had a “a class-wide policy 16 and practice of failing to provide second meal breaks”; 17 • Rest Break Subclass: Putative class members who worked at least one shift of more than 18 3.5 hours, in connection with claims that subclass members were unlawfully deprived of 19 rest breaks due to “Defendants’ practices and procedures requiring employees to remain on 20 premises for rest breaks and chronic understaffing”; 21 • Meal Break Waiver Subclass: Putative class members who worked at least one shift 22 between five and six hours in length or at least one shift between 10 and 12 hours in 23 length, in connection with claims that Defendants use invalid, blanket meal waivers to 24 deprive employees of a first meal break between the fifth and sixth hour of work and to 25 deprive employees of a second meal break between the tenth and twelfth hours of work; 26 • Off-the-Clock Work Subclass: Putative class members who arrived to work early, in 27 28 3 Unless otherwise noted, “Rule,” as used herein, refers to the Federal Rules of Civil Procedure. 3 Case 1:18-cv-00899-AWI-EPG Document 54 Filed 09/18/20 Page 4 of 38 1 connection with claims that Defendants maintained a class-wide policy of requiring 2 employees to determine their assigned workstation by watching a scrolling monitor prior to 3 clocking in for a shift; and 4 • Business Expense Subclass: Putative class members who purchased steel-toed boots for 5 use while working for Defendants, in connection with claims that QG Printing did not 6 provide legally sufficient reimbursement for such purchases. 7 Doc. Nos. 46 and 46-1. In addition, Plaintiff seeks to certify what he refers to as a “Derivative 8 Claims Subclass” comprising “claims pursuant to Labor Code sections 510, 1198, 1194, 1997, 9 1197.1, 201, 202, 203, 204, and 226, and Business & Professions Code section 17200, et seq.” that 10 are “entirely or partially derivative of the putative class claims” corresponding to the subclasses 11 listed above. Id. 12 III. Summary of Relevant Facts 13 Plaintiff submitted several declarations, as well as an expert report, his QG Printing work 14 history, excerpts from several deposition transcripts and various other documents in support of his 15 motion. See Doc. No. 46-2. 16 A. Declarations Filed by Plaintiff in Support of Motion 17 Plaintiff provides 16 declarations from putative class members. Doc. No. 46-1, Ex. B. 18 Twelve of the 16 declarations are from the Merced facility; three are from the West Sacramento 19 facility; and one is from the Jurupa Valley facility. Id. There is no declaration from the Box 20 Springs facility. Id. 21 1. Jurupa Valley Declaration 22 Troy Bradley (the “Jurupa Valley Declarant”) worked five 12-hour shifts per week as a 23 press assistant in the press production area in Jurupa Valley from June 2017 to November 2017. 24 Bradley was deprived of a proper first meal break “approximately two [] times” during the 25 seven months or so that he was employed by QG Printing, due to “insufficient staffing and a 26 demanding workload.” 27 Bradley states that there was “no policy for scheduling second meal periods and [] no 28 practice of permitting [him] or other employees to take a second 30-minute meal period.” As a 4 Case 1:18-cv-00899-AWI-EPG Document 54 Filed 09/18/20 Page 5 of 38 1 result, Bradley was not provided a second 30-minute meal period on days he worked in excess of 2 10 hours. 3 Bradley was deprived of five proper rest breaks each week “because QG had a policy of 4 failing to schedule rest breaks, assigning a heavy workload, and insufficiently staffing shifts.” 5 Bradley worked off-the-clock approximately once per month because “[m]anagement 6 required that [he] know [his] printer assignment before going down to the floor” and because “he 7 would often begin working before [his] scheduled start time so that [he] could take an online 8 safety training course.” 9 Bradley spent “about $150.00 on steel-toed boots” for work. 10 2. West Sacramento Declarations 11 Declarations from the West Sacramento facility were provided by Sepin Langrin, Ronald 12 Newman and Rafael Piña Santana (together, the “West Sacramento Declarants”). Langrin worked 13 five 8- to 12-hour shifts per week from January 2017 to May 2017. Newman worked five 12-hour 14 shifts per week from August 2014 to June 2015. And Piña Santana has worked five 8-hour shifts a 15 week since March 2018. 16 a. First Meal Breaks 17 Langrin did not receive a proper first meal break once per month. Newman did not receive 18 a proper first meal break 3 times a week. Both Langrin and Newman state that this was due to 19 “insufficient staffing and [a] demanding workload.” Piña Santana makes no statement regarding 20 first meal breaks. 21 b. Second Meal Breaks 22 Langrin makes no statement as to second meal breaks. Newman does not indicate how 23 often he was deprived of a second meal break (if ever), but states that “management had no policy 24 for scheduling second meal periods and would only permit [] employees to take a second 30- 25 minute meal period when there was adequate staffing.” Piña Santana states that employees “are 26 provided with a 20-25 minute second meal period” but does not state how frequently he was 27 deprived of a second mean break (if ever). 28 5 Case 1:18-cv-00899-AWI-EPG Document 54 Filed 09/18/20 Page 6 of 38 1 c. Rest Breaks 2 Langrin was unable to take a proper rest break twice per week “because the workload was 3 too busy, there was insufficient staff, and QG required employees to remain on-site to physically 4 observe ongoing projects.” Newman was unable to take a proper rest break five times per week 5 due to “a policy of failing to schedule rest breaks[] and insufficient staff.” Piña Santana was 6 unable to take a proper rest break two to three times per month because “the workload was too 7 busy.” 8 d. Off-the-Clock Work 9 Langrin worked off-the-clock for 30 minutes once or twice per month, checking his 10 assignment and communicating “with supervisors and other employees to discuss ongoing issues.” 11 Newman cleaned up his work area after clocking out three times per week. Piña Santana makes no 12 statement regarding off-the-clock work. 13 e. Steel-Toed Boots 14 Langrin spent $200 and Piña Santana spent $400 on steel-toed boots for work. Newman 15 makes no statement regarding steel-toed boots. 16 3. Merced Declarations 17 Relevant statements from the 12 declarants employed at QG Printing’s Merced facility 18 (“Merced Declarants”)4 are as follows: 19 a. First Meal Breaks 20 All 12 Merced Declarants state that they were deprived of first meal breaks to some extent 21 22 4 Edward Avila has worked five or six 12-hour shifts per week in the press production area from October 2015 to the 23 present. Edwin Bazan worked six or seven 8-hour shifts per week in the finishing area from April 2018 to October 2018. Nicholas Bauer worked six or seven 8- to 12-hour shifts per week in the finishing area from June 2018 through 24 November 2018. Guy Belt worked five to six 12-hour shifts per week as a forklift operator from November 2006 to January 2016. Andrea Cortes worked two to five 8-hour shifts per week in the finishing area from January 2018 25 through March 2018. Andres Farias has worked two to seven 12-hour shifts per week in the press production area from July 2016 to the present. Erika Longoria worked seven 8-hour shifts per week in the press production area from 26 November 2016 to December 2016. Matthew Myers worked five to six 12-hour shifts per week in the press production area from April 2017 to August 2019. Ronald Perez worked four 8- to 9-hour shifts per week in the 27 finishing area from October 2016 through August 2017. Jayson Sanderson worked five 12-hour shifts per week in the press production area from July 2015 to April 2018. Christopher Soria worked five 8- to 12-hour shifts per week in the finishing department from 2007 to 2014. Randy Waterbeck worked five to seven 12-hour shifts per week in the press 28 production area from March 2000 to July 2016. 6 Case 1:18-cv-00899-AWI-EPG Document 54 Filed 09/18/20 Page 7 of 38 1 but the rate at which Merced Declarants were deprived of meal breaks varied. On one end of the 2 spectrum, Bazan and Longoria state they were unable to take proper meal breaks once a month. 3 On the other end of the spectrum, Avila and Waterbeck state they were unable to take a proper 4 first meal break more or less every day that they worked. The remaining Merced Declarants were 5 unable to take proper first meal breaks between two times and four times per week. All of the 6 Merced Declarants more or less attribute the lack of proper first meal breaks to some combination 7 of insufficient staffing, heavy workload and requests from supervisors to perform work while on 8 break. 9 b. Second Meal Breaks 10 Bazan, Cortes and Longoria make no statement regarding second meal breaks. The other 11 Merced Declarants state that they were not provided a second meal break because QG Printing had 12 no policy for scheduling—and no practice of permitting employees to take—second meal breaks. 13 c. Rest Breaks 14 All 12 Merced Declarants were unable to take proper rest breaks to some extent, but the 15 rate at which they were unable to take proper rest breaks varied. On one end of the spectrum, 16 Longoria was unable to take proper rest breaks once every other week, Waterbeck was unable to 17 take proper rest breaks once or twice a week, and Cortes was unable to take proper rest breaks 18 twice a week. On the other end of the spectrum, Sanderson was unable to take proper rest breaks 19 10 times per week. The other Merced Declarants fell within that range and were unable to take 20 proper rest breaks at rates of three to four times per week, four to five times per week and seven to 21 eight times per week. All of the Merced Declarants state that they were deprived of rest breaks 22 because QG Printing failed to schedule rest breaks, assigned a demanding workload and / or had 23 insufficient staff, and nine Merced Declarants state that employees were required to remain on-site 24 during rest breaks. 25 d. Off-the-Clock Work 26 Avila states that he worked off-the-clock prior to his shift six times per week because he 27 was required to determine his printer assignment before commencing work and because he “often 28 begin[s] working before [his] scheduled start time so that [he] can communicate with employees to 7 Case 1:18-cv-00899-AWI-EPG Document 54 Filed 09/18/20 Page 8 of 38 1 discuss ongoing issues.” Perez states that he worked off-the-clock with unspecified frequency 2 because he was required to determine his printer assignment before commencing work and 3 because he “would often begin working before [his] scheduled start time so that [he] could prepare 4 [his] equipment.” Sanderson states that he worked off-the-clock five times per week because he 5 was not compensated for the time it took to put on his uniform, which was stored in a locker at 6 work. Soria states that he worked off-the-clock five times per week because he was required to 7 determine his printer assignment before commencing work and because he often started working 8 before his scheduled start time so he could “prepare [his] tools, check his assignment and 9 communicate with employees to discuss ongoing issues.” 10 Belt, Myers and Waterbeck state that they worked through meal breaks from one to four 11 times week, but none of them claims to have worked off-the-clock prior to a shift. 12 Bazan, Baur, Cortes and Farias make no statement at all regarding off-the-clock work. 13 e. Steel-Toed Boots 14 Eight of the 12 Merced Declarants state that they spent amounts in excess of $50 on steel- 15 toed boots for work, with spend ranging from about $60 to about $350 per year, after loosely 16 adjusting for imputed frequency of purchases (to the extent possible based on information in the 17 declarations). Bazan, Baur, Belt and Waterbeck make no statement regarding expenditures on 18 steel-toed boots. 19 B. Plaintiff’s Deposition Testimony 20 Plaintiff affirmed in deposition testimony that it was QG Printing’s policy to “take a lunch 21 break” prior to the end of the fifth hour of work. Doc. No. 46-2, Ex. C. Further, he testified that he 22 skipped rest breaks “a lot,” but that no supervisor instructed or encouraged him not to take a rest 23 break or a lunch break. Id. As to off-the-clock work, Plaintiff testified that he was allowed to clock 24 in ahead of his shift to have time to look at the assignment board, but he could not recall how 25 much time he was given to do so. Id. Finally, Plaintiff stated that he never clocked out for a 26 second meal break. Id. 27 C. Plaintiff’s Expert Report 28 8 Case 1:18-cv-00899-AWI-EPG Document 54 Filed 09/18/20 Page 9 of 38 1 Plaintiff’s expert reviewed timekeeping records for a period of approximately five years 2 from May 29, 2014 through July 14, 2019 for 1,195 employees and a total of 575,659 shifts across 3 QG Printing’s four California facilities.5 Doc. No. 46-2, Ex. A. The following is a summary of his 4 findings with respect to issues relevant to this motion. 5 1. First Meal Breaks 6 535,304 shifts corresponding to 1,186 employees were greater than six hours in length. Of 7 those 535,304 shifts, 21,724 did not exhibit a first meal period; 46,464 exhibited a first meal 8 period that was shorter than 30 minutes in length; and 111,258 exhibited a first meal period that 9 “commenced after the end of the fifth hour of work (i.e., the first segment of work lasted longer 10 than 5 hours before the first clock-out punch).” 11 Based on these data, it appears that about 96% of shifts in excess of 6 hours had a first 12 meal break of some sort, but that 9% of first meal breaks were shorter than 30 minutes and that 13 22% of first meal breaks were taken after the end of the fifth hour of work. Further, the Court 14 reads the report to show that between 16% and about a third of shifts over six hours involved some 15 sort of first meal break violation (or, conversely, that between two thirds and 84% of shifts over 16 six hours did not involve a first meal break violation), depending on the degree of overlap between 17 the “less than 30 minutes” category and the “after the end of the fifth hour of work” category. 18 Moreover, the data appear to show that there were 18,354 shifts that were greater than five 19 hours in length but not greater than six hours in length, and that 15,525 of the missed first breaks 20 attributed to shifts greater than five hours in length occurred in shifts that were not greater than six 21 hours in length. Thus, first meal breaks were missed in 97% of shifts between five and six hours in 22 length, but in only 4% of shifts in excess of six hours in length. 23 2. Second Meal Breaks 24 375,777 shifts corresponding to 1,073 employees were greater than 10 hours in length. Of 25 these shifts, 373,981 did not exhibit a second meal period, 247 exhibited a second meal period that 26 was shorter than 30 minutes in length, and 50 exhibited a second meal period that commenced 27 5 Defendants contend that these timekeeping records only cover employees in press production areas and, thus, do not 28 include employees in the finishing area in the Merced facility. Doc. No. 49, page 13 of 43, n.4. 9 Case 1:18-cv-00899-AWI-EPG Document 54 Filed 09/18/20 Page 10 of 38 1 “after the end of the tenth hour of work.” Thus, more than 99% of shifts in excess of 10 hours 2 lacked a second meal break completely. 3 10,263 shifts were greater than 12 hours in length, accounting for 1.8% of the shifts in the 4 data set of 575,659 shifts used by Plaintiff’s expert. 5 3. Other 6 Plaintiff’s expert calculates that the 1,194 Class Members were entitled to 1,480,575 rest 7 breaks during the period of time covered by his analysis but makes no statement as to how many 8 of these break periods were missed or otherwise compromised. There is similarly no information 9 in the report relating to off-the-clock work or reimbursement for steel-toed boots. 10 The Court will decide Plaintiff’s motion in light of the foregoing facts and, where 11 applicable, evidence set forth by Defendants.6 See In re Hydrogen Peroxide Antitrust Litigation, 12 552 F.3d 305, 313 (3d Cir. 2008) (“Although the district court’s findings for the purpose of class 13 certification are conclusive on that topic, they do not bind the fact-finder on the merits.”) 14 LEGAL STANDARD 15 A class action is “an exception to the usual rule that litigation is conducted by and on 16 behalf of the individual named parties only.” Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1432 17 (2013) (quoting Califano v. Yamasaki, 442 U.S. 682, 700-701 (1979)) (internal quotation marks 18 omitted). In a class action, one or more class members may “litigate on behalf of many absent 19 class members, and those class members are bound by the outcome of the representative’s 20 litigation.” 1 Newberg on Class Actions § 1:1 (5th ed.) (citing Supreme Tribe of Ben Hur v. 21 22 6 Plaintiff objects to certain statements in declarations Defendants filed in opposition to Plaintiff’s motion. Doc. No. 51-1. Plaintiff’s objections to statements with respect to skipping second meal breaks (paragraph 12 of the Declaration 23 of Edward Avila, paragraph 10 of the Declaration of Nicole Berek, paragraph 20 of the Declaration of Maria Cabrera, paragraph 5 of the Declaration of Paul Fleming, and paragraph 21 of the Declaration of Hector Fregoso (Doc. No. 49- 24 4)) are OVERRULED on the grounds that a declarant’s own statements regarding his or her personal reasons for skipping second meal breaks do not constitute opinions or legal conclusions and, in any event, the Court is not limited 25 to admissible evidence in deciding this motion. See Sali, 909 F.3d at 1005-06. The rest of Plaintiff’s objections are OVERRULED as moot since the Court had no occasion to consider the statements at issue in deciding this motion. 26 Plaintiff’s request that the Court take judicial notice of the Order on Motion for Summary Adjudication in Duran v. 27 Vicar Operating, Inc., Case No. BC510327 (L.A. Sup. Ct.) (Doc. No. 46-4) is GRANTED pursuant to Federal Rule of Evidence 201. 28 10 Case 1:18-cv-00899-AWI-EPG Document 54 Filed 09/18/20 Page 11 of 38 1 Cauble, 255 U.S. 356, 363 (1921)). 2 Class actions are governed by Rule 23 of the Federal Rules of Civil Procedure, which sets 3 forth a two-part framework for deciding whether a class may be certified for representative 4 litigation. See Kanawi v. Bechtel Corp., 254 F.R.D. 102, 107 (N.D. Cal. 2008). 5 First, Rule 23(a) asks whether a proposed class action satisfies each of the following four 6 requirements: (1) the class is so numerous that joinder of all members is impracticable; (2) there 7 are questions of law or fact common to the class; (3) the claims or defenses of the representative 8 parties are typical of the claims or defenses of the class; and (4) the representative parties will 9 fairly and adequately protect the interests of the class. Fed.R.Civ.P. 23(a). 10 Assuming all four of the Rule 23(a) requirements are satisfied, the second step addresses 11 whether the proposed class satisfies the requirements of Rule 23(b)(1), Rule 23(b)(2), or Rule 12 23(b)(3). See Kanawi, 254 F.R.D. at 107. Here, Plaintiff seeks certification under Rule 23(b)(3), 13 which requires that “the questions of law or fact common to class members predominate over any 14 questions affecting only individual members, and that a class action is superior to other available 15 methods for fairly and efficiently adjudicating the controversy.” Fed.R.Civ.P. 23(b)(3). 16 A court must conduct a “rigorous analysis” to determine whether all applicable 17 requirements of Rule 23(a) and Rule 23(b) have been satisfied. General Telephone Co. of 18 Southwest v. Falcon, 457 U.S. 147, 161 (1982). The merits of the class members’ substantive 19 claims are generally irrelevant to this analysis, Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177– 20 78 (1974), but courts are “at liberty to consider evidence which goes to the requirements of Rule 21 23 even though the evidence may also relate to the underlying merits of the case.” Hanon v. 22 Dataproducts Corp., 976 F.2d 497, 509 (9th Cir. 1992) (citation and internal quotation marks 23 omitted). A court takes “the substantive allegations of the complaint as true,” Blackie v. Barrack, 24 524 F.2d 891, 901 n.17 (9th Cir. 1975), and a court is not limited to considering only admissible 25 evidence in deciding a motion for class certification. Sali v. Corona Reg’l Med. Ctr., 909 F.3d 26 996, 1005-06 (9th Cir. 2018), cert. dismissed, 139 S. Ct. 1651 (2019). 27 Courts apply a preponderance of the evidence standard in deciding motions for class 28 certification, Martin v. Sysco Corporation, 325 F.R.D. 343, 354 (E.D. Cal. 2018), and the 11 Case 1:18-cv-00899-AWI-EPG Document 54 Filed 09/18/20 Page 12 of 38 1 proponent of class treatment bears the burden of affirmatively demonstrating that class 2 certification is warranted. See Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011); see also, 3 Kanawi, 254 F.R.D. at 107 (“The party seeking certification must provide facts sufficient to 4 satisfy the requirements of Rule 23(a) and (b).” (citing Doninger v. Pac. Northwest Bell, Inc., 564 5 F.2d 1304, 1308–09 (9th Cir.1977)). 6 If a court decides to certify a class, the court must issue a certification order defining “the 7 class and the class claims, issues, or defenses, and must appoint class counsel” under Rule 23(g) of 8 the Federal Rules of Civil Procedure. Fed.R.Civ.P. 23(c)(1)(A)-(B). 9 DISCUSSION 10 Plaintiff seeks to represent an overarching class and several subclasses involving 11 approximately 1,195 non-exempt, hourly employees who worked in QG Printing’s California 12 facilities “at any time from May 29, 2014 through the date of class certification” in connection 13 with claims relating to meal breaks, rest breaks, off-the-clock work and reimbursement of business 14 expenses. Plaintiff essentially contends that certification is warranted across the board because the 15 claims at issue are “predicated on Defendants’ statewide, uniform policies and practices,” Doc. 16 No. 46-1, page 6 of 30, while Defendants essentially contend that certification is unwarranted 17 because Plaintiff has failed to set forth “credible evidence” showing a “class-wide, unlawful 18 practice” in any area relevant to this motion. Doc. No. 49, page 9 of 43. 19 Neither party provided briefing of consequence as to certification of the overarching class, 20 so the Court will focus primarily on the proposed subclasses (and corresponding claims) in 21 conducting the required Rule 23(a) and Rule 23(b)(3) analyses, with occasional references to the 22 proposed overarching class for context. See Dawson v. Hertz Transporting, Inc., 2018 WL 23 6112623, at *4–5 (C.D. Cal. Nov. 5, 2018) (similar approach). 24 I. Numerosity and Ascertainability 25 Rule 23(a)(1) expressly requires a showing that “the class is so numerous that joinder of all 26 members is impracticable.” Fed.R.Civ.P. 23(a)(1). Generally speaking, 40 or more individuals in a 27 proposed class is sufficient to satisfy the numerosity requirement. See, e.g., Ries v. Ariz. 28 Beverages USA LLC, 287 F.R.D. 523, 536 (N.D. Cal. 2012) (“While there is no fixed number that 12 Case 1:18-cv-00899-AWI-EPG Document 54 Filed 09/18/20 Page 13 of 38 1 satisfies the numerosity requirement, as a general matter, a class greater than forty often satisfies 2 the requirement, while one less than twenty-one does not.” (citing Californians for Disability 3 Rights, Inc. v. Cal. Dep’t of Transp., 249 F.R.D. 334, 346 (N.D.Cal.2008)). 4 Further, Rule 23 implicitly requires that the proposed class be ascertainable, particularly 5 where, as here, certification is sought under Rule 23(b)(3). See Marcus v. BMW of North 6 America, LLC, 687 F.3d 583, 592-93 (3d Cir. 2012); Jones v. ConAgra Foods, Inc., 2014 WL 7 2702726, *8 (N.D. Cal. 2014). “A class is not ascertainable unless membership can be established 8 by means of objective, verifiable criteria.” ConAgra Foods, Inc., 2014 WL 2702726 at *8 (citing 9 Xavier v. Philip Morris USA, Inc., 787 F. Supp. 2d 1075, 1088–90 (N.D. Cal. 2011)). Class 10 treatment is not appropriate if “the court must determine the merits of an individual claim to 11 determine who is a member of the class,” Roth v. CHA Hollywood Med. Ctr., L.P., 2013 WL 12 5775129, at *4 (C.D. Cal. Oct. 25, 2013) (quoting Johns v. Bayer Corp., 280 F.R.D. 551, 555 13 (S.D. Cal. 2012) (internal quotation marks omitted), and the party moving for class certification 14 bears the burden of showing a sufficiently ascertainable class. See Whitaker v. Bennett Law, 15 PLLC, 2016 WL 4595520, at *1 (S.D. Cal. May 27, 2016) (“As an essential prerequisite to class 16 certification, plaintiff must show by a preponderance of the evidence that the class is 17 ascertainable.” (quoting Hayes v. Wal-Mart Stores, Inc., 725 F.3d 349, 354 (3rd Cir. 2013) 18 (internal quotation marks omitted)). 19 A. Parties’ Arguments 20 Plaintiff contends that the overarching class is sufficiently numerous because it comprises 21 more than 1,195 current and former QG Printing employees and that the subclasses are sufficiently 22 numerous because there is significant overlap between the class and each subclass. For example, 23 it appears that 1,186 of 1,195 putative class members worked a shift in excess of six hours and 24 would therefore fall within the First Meal Break Subclass. Further, Plaintiff contends that the 25 proposed class and subclasses may be “readily ascertained” from Defendants records, which show, 26 inter alia, shift lengths, meal breaks and job classifications. 27 Defendants do not dispute numerosity but contend that the subclasses are not ascertainable 28 because they are improperly predicated on alleged violations (such that membership in a given 13 Case 1:18-cv-00899-AWI-EPG Document 54 Filed 09/18/20 Page 14 of 38 1 subclass is “based on a determination of liability” with respect to one or more claims), as opposed 2 to “objective” criteria along the lines of job titles, job duties and such. For example, Defendants 3 argue that the only way to define the Rest Break Subclass would be to determine—a priori and 4 based on rebuttable “individualized inquiry”—whether a given employee had at some point been 5 denied a rest break. In addition, Defendants argue that the ascertainability requirement is not 6 satisfied because no end dates for the proposed subclasses are specified. 7 B. Analysis 8 In the Court’s view, the issues Defendants raise in connection with ascertainability can be 9 more neatly addressed in connection with commonality under Rule 23(a)(2) and predominance 10 under Rule 23(b)(3). There is some ambiguity as to the criteria for the proposed subclasses 11 because Plaintiff characterizes the proposed subclasses in more than one way: The notice of 12 motion defines the proposed subclasses in terms of objective criteria such as shift length and 13 period of employment, while the opening memorandum in support of Plaintiff’s motion primarily 14 talks about each subclass in terms of the corresponding claims. For example, whereas the notice of 15 motion describes the Rest Break Subclass as “[a]ll non-exempt, hourly paid employees who 16 worked for Defendants in California at any time from May 29, 2014 through the date of class 17 certification and who worked at least one shift of more than 3.5 hour,” the opening memorandum 18 describes the Rest Break Subclass as comprising employees who were required “to continue 19 working on [] printing machines, regardless of breaks.” Taking theories of liability into account 20 when assessing ascertainability is not necessarily improper, see Cortez v. Best Buy Stores, LP, 21 2012 WL 255345, at *4 (C.D. Cal. Jan. 25, 2012), but in this case, the Court will decide 22 ascertainability based on the objective criteria set forth in the notice of motion and wait to address 23 theories of liability in connection with the commonality and predominance analyses for each 24 proposed subclass. 25 Taking that approach, the Court sees no reason why the objective criteria set forth in the 26 notice of motion cannot be applied—with ease—to define the class and each proposed subclass in 27 a manner that enables proper notice and clearly defines who would be bound by final judgment in 28 this case. See Whitaker v. Bennett Law, PLLC, 2016 WL 4595520, at *1 (S.D. Cal. May 27, 14 Case 1:18-cv-00899-AWI-EPG Document 54 Filed 09/18/20 Page 15 of 38 1 2016). Further, Defendants’ argument that Plaintiff has failed to provide end dates is unavailing 2 because the definitions proposed by Plaintiff do provide end dates: They state that the class period 3 and subclass periods end with “the date of class certification.” The Court construes that to mean 4 the date on which this Order is issued and, for the sake of clarity, defines the period applicable to 5 the class and each of the proposed subclasses as May 19, 2014 through the date of this Order 6 (“Class Period”). See Gomez v. J. Jacobo Farm Labor Contractor, Inc., 334 F.R.D. 234, 250 (E.D. 7 Cal. 2019), modified on reconsideration, 2020 WL 1911544 (E.D. Cal. Apr. 20, 2020) (Ishii, J.) 8 (citing Ansoumana v. Gristede’s Operating Corp., 201 F.R.D. 81, 85 n.2 (S.D.N.Y. 2001) and 9 Taylor v. Autozone, Inc., 2011 WL 2357652, at *1 (D. Ariz. June 14, 2011) (redefining 10 unascertainable class period end date as date of conditional class certification order)). 11 Since there is no dispute as to numerosity (and it appears quite likely that each proposed 12 subclass comprises scores if not hundreds of putative members), the Court finds that Rule 23 13 numerosity and ascertainability requirements are satisfied. 14 II. Commonality and Predominance 15 Rule 23(a)(2) provides that a class action can be maintained only where “there are 16 questions of law or fact common to the class.” Fed.R.Civ.P. 23(a)(2). A common issue is one 17 where “the same evidence will suffice for each member to make a prima facie showing,” Tyson 18 Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036, 1048, 194 L. Ed. 2d 124 (2016) (citation omitted); 19 see also, In re Nassau County Strip Search Cases, 461 F.3d 219, 227 (2d Cir. 2006) (a common 20 issue is one that is “susceptible to generalized, class-wide proof”), whereas an individual issue is 21 one where “members of a proposed class will need to present evidence that varies from member to 22 member.” Tyson Foods, Inc., 136 S. Ct. at 1045 (citation and internal quotation marks omitted). 23 A single common question of fact or law can suffice to satisfy Rule 23(a)(2), see Dukes, 24 564 U.S. at 359, but the party seeking class certification must show that determination of that 25 question will resolve an issue “central to the validity” of the claims of all members of a putative 26 class “in one stroke.” Id. at 350, 359; see also, Wang v. Chinese Daily News, Inc., 737 F.3d 538, 27 544 (9th Cir. 2013) (remanding for the district court to “determine whether the claims of the 28 proposed class depend upon a common contention ... of such a nature that it is capable of 15 Case 1:18-cv-00899-AWI-EPG Document 54 Filed 09/18/20 Page 16 of 38 1 classwide resolution”). At bottom, “[w]hat matters to class certification ... is not the raising of 2 common ‘questions’—even in droves—but, rather the capacity of a class-wide proceeding to 3 generate common answers apt to drive the resolution of the litigation.” Dukes, 564 U.S. at 350 4 (citation and internal quotation marks omitted, emphasis original). 5 The predominance prong of Rule 23(b)(3), for its part, requires that “questions of law or 6 fact common to class members predominate over any questions affecting only individual 7 members.” Fed.R.Civ.P. 23(b)(3). This requirement is “far more demanding” than the 8 commonality requirement in Rule 23(a)(2) and requires a showing that a proposed class is 9 “sufficiently cohesive to warrant adjudication by representation.” See Amchem Prods., Inc. v. 10 Windsor, 521 U.S. 591, 623-24 (1997). More specifically, the predominance analysis looks at 11 whether class treatment “will help achieve judicial economy,” further the goal of efficiency, and 12 “diminish the need for individual inquiry.” See Vinole v. Countrywide Home Loans, Inc., 571 13 F.3d 935, 944, 947 (9th Cir. 2009). 14 Common issues likely will not predominate where: “a great deal of individualized proof” is 15 needed to address most or all of the elements of a claim, Klay v. Humana, Inc., 382 F.3d 1241, 16 1255 (11th Cir. 2004); “a number of individualized legal points” would need to be established 17 after common questions were resolved, id.; or “the resolution of ... [an] overarching common issue 18 breaks down into an unmanageable variety of individual legal and factual issues.” Cooper v. 19 Southern Co., 390 F.3d 695, 722 (11th Cir. 2004). Common questions may predominate, however, 20 where “individual factual determinations can be accomplished using computer records, clerical 21 assistance, and objective criteria — thus rendering unnecessary an evidentiary hearing on each 22 claim,” Smilow v. Southwestern Bell Mobile Systems, Inc., 323 F.3d 32, 40 (1st Cir. 2003) 23 (citations omitted), or where “adding more plaintiffs to the class would minimally or not at all 24 affect the amount of evidence to be introduced.” 2 Newberg on Class Actions § 4:50 (5th ed.) 25 (citing Klay, 382 F.3d at 1255). 26 A finding of predominance will generally not be “defeat[ed]” merely because there is a 27 need to make individualized damage determinations, see Just Film, Inc. v. Buono, 847 F.3d 1108, 28 1121 (9th Cir. 2017), and neither challenges to a plaintiff’s legal theories nor doubts about a 16 Case 1:18-cv-00899-AWI-EPG Document 54 Filed 09/18/20 Page 17 of 38 1 plaintiff’s ability to prove a claim at trial are relevant in determining whether common issues 2 predominate. See United Steel, Paper & Forestry, Rubber, Mfg., Energy, Allied Industrial & Serv. 3 Workers Int’l Union, AFL-CIO, CLC v. Conoco-Phillips Co., 593 F.3d 802, 809 (9th Cir. 2010). 4 The Rule 23(a)(2) commonality requirement “has similarities with and serves as the 5 foundation to” the predominance prong of Rule 23(b)(3). See 1 Newberg on Class Actions § 3:27 6 (5th ed.) (explaining that Rule 23(b)(3)’s predominance requirement “obviously builds on” Rule 7 23(a)(2)’s commonality requirement). The Court will therefore apply the commonality and 8 predominance analyses concurrently for each of Plaintiff’s proposed subclasses and the 9 corresponding claims. See Gomez, 334 F.R.D. at 251. 10 A. First Meal Break Subclass 11 The proposed “First Meal Break Subclass” comprises all non-exempt, hourly employees in 12 Defendants’ California facilities who worked at least one shift of more than six hours during the 13 Class Period and involves claims that QG Printing “chronically understaffs its printing facilities in 14 California while imposing strict deadlines which impede and discourage subclass members from 15 taking, timely uninterrupted and compliant first meal breaks in shifts over six hours.” Plaintiff 16 further contends that Defendants failed to compensate putative members of the First Meal Break 17 Subclass with premium payments for missed first meal breaks as required under state law. 18 1. Applicable Law 19 Section 512(a) of Labor Code provides in pertinent part: 20 An employer shall not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than 21 30 minutes, except that if the total work period per day of the employee is no more than six hours, the meal period may be waived by mutual consent of both the 22 employer and employee. 23 Cal. Lab. Code § 512, subd. (a); see also, 8 Cal. Code Regs. § 11010, subd. 11(A). 24 Further, Section 226.7, subdivision (c), of the Labor Code provides that the employer 25 “shall pay the employee one additional hour of pay at the employee’s regular rate of compensation 26 for each workday that the meal ... period is not provided.” Cal. Lab. Code § 226.7, subd. (c); see 27 also, 8 Cal. Code Regs. § 11010, subd. 11(D). 28 Generally, the employer’s duty to provide a meal break is discharged “if it relieves its 17 Case 1:18-cv-00899-AWI-EPG Document 54 Filed 09/18/20 Page 18 of 38 1 employees of all duty, relinquishes control over their activities and permits them a reasonable 2 opportunity to take an uninterrupted 30-minute break, and does not impede or discourage them 3 from doing so.” Brinker Rest. Corp. v. Superior Court, 53 Cal. 4th 1004, 1040 (2012). 4 2. Parties’ Arguments 5 Plaintiff contends that claims relating to the First Meal Break Subclass present multiple 6 “clear and distinct common questions of law and fact,” including: “a) did Defendants fail to 7 schedule meal breaks on a daily basis; b) was it Defendants’ practice to prohibit employees from 8 leaving their machines unless there was proper coverage; c) did Defendants regularly impose 9 heavy workloads and insufficient staffing such that, combined with these policies and practices, 10 employees were often not provided compliant meal breaks; and d) did Defendants fail to 11 automatically pay break premiums when employees were not provided compliant breaks and, 12 instead, only pay them if and when employees submitted Missed Time Entry/Break (‘MTE’) 13 forms.” 14 Defendants argue, in essence, that Plaintiff’s claims with respect to the First Meal Break 15 Subclass are not predicated on a company policy against first meal breaks and that the record in 16 this case contradicts Plaintiff’s assertion that Defendants had a uniform practice of discouraging or 17 impeding meal breaks in their California facilities. Thus, according to Defendants, individualized 18 inquiries into the unique circumstances of different subclass members—including, for example, 19 their employment location, the nature of their work, the identity and conduct of their supervisors, 20 work conditions and such—would be required to ascertain why putative members of this proposed 21 subclass were deprived of proper first meal breaks. 22 3. Analysis 23 According to Plaintiff’s expert, 1,186 members of the 1,195 or so putative members of the 24 proposed overarching class worked 535,304 shifts that were longer than six hours in the period 25 from May 29, 2014 to July 14, 2019. Of those 535,304 shifts, 21,724 did not exhibit a first meal 26 period; 46,464 exhibited a first meal period that was shorter than 30 minutes in length; and 27 111,258 exhibited a first meal period that “commenced after the end of the fifth hour of work (i.e., 28 the first segment of work lasted longer than 5 hours before the first clock-out punch).” Doc. No. 18 Case 1:18-cv-00899-AWI-EPG Document 54 Filed 09/18/20 Page 19 of 38 1 46-2, Ex. A. Based on these data, it appears that 96% of the shifts in excess of six hours had a first 2 meal break of some sort, but that 9% of first meal breaks in shifts in excess of six hours were 3 shorter than 30 minutes in length and that 22% of first meal breaks in shifts in excess of six hours 4 commenced after the end of the fifth hour of work. Further, it appears that somewhere between 5 16% and 34% of shifts in excess of six hours involved a first meal break violation of some sort (or 6 conversely that between 66% and 84% of shifts over six hours did not involve a first meal break 7 violation), depending on the degree of overlap between the short first meal break category (46,465 8 shifts) and late first meal break category (111,258 shifts) (which, for whatever reason, is not 9 addressed in the expert report).7 10 With respect to declarations, the one declarant from the Jurupa Valley facility was 11 deprived of a proper first meal break twice in six months as a QG Printing employee. Of the three 12 West Sacramento Declarants, one makes no statement regarding missed first meal breaks at all; 13 one was denied a proper first meal break once per month; and one was denied a proper first meal 14 break three times per week. There is no declaration whatsoever from the Box Springs facility, and 15 it appears that the 12 Merced Declarants were deprived of proper meal breaks at rates ranging 16 from once a month, on the low end, to five or six times per week (essentially every day) on the 17 high end. 18 19 7 The Court also notes that the report describes the late first meal break category (comprising 111,258 shifts) as shifts including first meal breaks that “commenced after the end of the fifth hour of work (i.e., the first segment of work 20 lasted longer than 5 hours before the first clock-out punch).” Doc. No. 46-2, Ex. A. California law, however, provides that “the period before a first meal is limited to five hours,” Brinker, 53 Cal. 4th at 1048 (citing § 512, subd. (a)), so 21 the mere fact that a meal break “commenced after the end of the fifth hour of work,” as contemplated by the first part of the label applied by Plaintiff’s expert, does not evidence wrongful conduct on Defendants’ part. Wrongful conduct 22 would only be implicated where “the first segment of work” in a given shift actually “lasted longer than 5 hours before the first clock-out punch,” as contemplated by the second part of the label applied by Plaintiff’s expert. The 23 ambiguity in the label is all the more noteworthy, in the Court’s view, because Plaintiff’s briefing and deposition testimony evince an understanding that the first meal break must be provided before the end of the fifth hour of work, 24 see, e.g., Doc. No. 46-1, page 8 of 30, line 27; Doc. No. 46-2, page 83 of 272, and the first paragraph of the expert report states only that the expert identified meal periods “occurring after the end of the fifth or tenth hours of work,” 25 with no indication that data collection or analysis was limited to shifts where more than five hours (or more than ten hours)—as opposed to precisely five hours (or ten hours)—passed prior to commencement of a meal break. Further, 26 this ambiguity compounds the uncertainty arising from the fact that the expert provides no information on the extent to which the short first meal break category (46,464 shifts) and the late first meal break category (111,258 shifts) 27 overlap. Inasmuch as Plaintiff has the burden on this motion, the Court would be justified in disregarding the problematic late first meal break category entirely (in which case the expert report would show that less than 13% of shifts over six hours had a first meal break violation of some sort), but even giving Plaintiff the benefit of the doubt in 28 connection with the foregoing issues, the Court finds the data in the report unconvincing as to first meal breaks. 19 Case 1:18-cv-00899-AWI-EPG Document 54 Filed 09/18/20 Page 20 of 38 1 Finally, Plaintiff testified at deposition that it was QG Printing’s policy to “take a lunch 2 break” before the end of the fifth hour of work, and Defendants set forth evidence showing that the 3 proposed subclass comprises 38 job titles across QG Printing’s four California facilities. Doc. No. 4 49-11 ¶ 5. 5 In short, Plaintiff himself admits that Defendants did not have a policy prohibiting first 6 meal breaks and the declarations submitted in support of Plaintiff’s motion shows significant 7 variability in the rate of alleged first meal break violations across employees and locations. The 8 violation rate ranges from once a month to every day in Merced, and there is no showing of 9 consequence that employees were regularly deprived of proper first meal breaks in the West 10 Sacramento, Jurupa Valley or Box Springs locations. Moreover, the data set forth by Plaintiff’s 11 expert shows that missed first meal breaks were a rarity in shifts over six hours and that a decisive 12 majority of shifts over six hours did not involve an alleged meal break violation of any kind. 13 It may be that Plaintiff could show that Defendants had a policy not to schedule first meal 14 breaks, and it similarly appears that there may be common questions as to the nature and legality 15 of Defendants’ practices with respect to premium pay for missed breaks. The Court sees little on 16 the record, however, to evidence a uniform practice with respect to impeding or discouraging 17 proper first meal breaks across—or within—QG Printing’s California facilities. It is more likely, 18 in the Court’s view, that individualized inquiries into the unique circumstances of employees in 19 different roles at different facilities at different points in time during the multi-year period at issue 20 in this case will be required to determine why a given first meal break was missed (or otherwise 21 comprised) in ascertaining Defendants’ liability on first meal break claims. Thus, even assuming 22 commonality is satisfied under Rule 23(a)(2) in connection with Defendants’ premium pay policy 23 and policy of not scheduling rest breaks, the Court finds that Plaintiff has failed to satisfy the 24 preponderance prong of Rule 23(b)(3) as to claims for the First Meal Break Subclass. 25 B. Second Meal Break Subclass 26 The proposed “Second Meal Break Subclass” comprises all non-exempt, hourly employees 27 in Defendants’ California facilities who worked at least one shift of more than 12 hours during the 28 Class Period, in connection with claims that Defendants had a “a class-wide policy and practice of 20 Case 1:18-cv-00899-AWI-EPG Document 54 Filed 09/18/20 Page 21 of 38 1 failing to provide second meal breaks.” 2 1. Applicable Law 3 Section § 512, subdivision (a), of the Labor Code provides, in pertinent part: 4 An employer shall not employ an employee for a work period of more than 10 hours per day without providing the employee with a second meal period of not 5 less than 30 minutes, except that if the total hours worked is no more than 12 hours, the second meal period may be waived by mutual consent of the employer and the 6 employee only if the first meal period was not waived. 7 Cal. Lab. Code § 512, subd. (a); see also, 8 Cal. Code Regs. § 11010, subd. 11(B). 8 As with meal periods due after five hours, employers failing to provide the meal period 9 due after 10 hours must pay “one additional hour of pay at the employee’s regular rate of 10 compensation for each work day that the meal ... period is not provided.” Cal. Lab. Code § 226.7, 11 subd. (c); 8 Cal. Code Regs. § 11010, subd. 11(D). 12 2. Parties’ Arguments 13 Plaintiff contends that certification of claims for the Second Meal Break Subclass is 14 warranted because Defendants had a universal policy and practice of not providing second meal 15 periods and, by law, second meal periods cannot be waived for shifts in excess of 12 hours. 16 Further, Plaintiff contends that Defendants had a uniform policy not to pay premiums for missed 17 second meal breaks unless employees submitted forms requesting such premiums. 18 Defendants argue that there was no class-wide policy or practice with respect to second 19 meal periods for shifts in excess of 12 hours because QG Printing does not schedule shifts over 12 20 hours, although an employee will occasionally work longer than the scheduled 12 hours or clock 21 out late. 22 3. Analysis 23 The report prepared by Plaintiff’s expert shows 10,263 shifts greater than 12 hours in 24 length, corresponding to 601 employees. Of these, 10,207 did not exhibit a second meal period, 2 25 exhibited a second meal period that was shorter than 30 minutes in length, and 39 exhibited a 26 second meal period that commenced after the end of the tenth of work. Further, Plaintiff’s expert 27 states that 375,777 shifts were greater than 10 hours in length. Thus, 2.7% of shifts in excess of 10 28 hours—and a mere 1.8% of all 575,659 shifts in the data set—were in excess of 12 hours, and on 21 Case 1:18-cv-00899-AWI-EPG Document 54 Filed 09/18/20 Page 22 of 38 1 average, a putative member of the Second Meal Break Subclass worked just 17 shifts in excess of 2 12 hours during the five years or so covered by the expert report (about 3 shifts each per year). 3 All declarants who worked shifts in excess of 10 hours state that “management had no 4 policy for scheduling second meal periods and had no practice of permitting [] employees to take a 5 second 30-minute meal period” and that they were “not provided a second 30-minute meal period” 6 on days that they worked over 10 hours. None of Plaintiff’s declarants, however, state that they 7 worked shifts in excess of 12 hours or that they were deprived of proper second meal breaks on 8 shifts in excess of 12 hours. 9 It appears that Plaintiff only worked over 12 hours on one occasion—when he worked 12 10 hours and seven minutes on December 4, 20178—and the Court sees no testimony from Plaintiff 11 as to second meal breaks for shifts in excess of 12 hours. 12 Finally, Defendants set forth several declarations from employees stating that most 13 employees prefer to skip a second meal period and go directly home on rare occasions when a 14 shift turns out to be longer than 12 hours, rather than extend the shift further with a meal break. 15 Doc. No. 49-4, Ex. B. 16 Given the rarity of shifts in excess of 12 hours (as evidenced by Plaintiff’s expert report), 17 the complete lack information in Plaintiff’s declarations regarding shifts in excess of 12 hours, 18 Plaintiff’s own lack of meaningful experience with shifts in excess of 12 hours, and the 19 20 8 Plaintiff states that he is typical of putative members of the Second Meal Break Subclass because “he was routinely 21 deprived of second meal breaks whenever he worked more than 12 hours” and that QG000001 through QG000006 in Exhibit G to the Declaration of Melissa Grant (“Grant Declaration”) (Doc. No. 46-2) “evidenc[es] shifts [he] worked 22 over 12 hours in which he was not provided a second meal break.” Doc. No. 46-1, page 16 of 30. The Court reviewed QG000001 through QG000006 and sees only one instance in which it appears Plaintiff worked a shift in excess of 12 23 hours: a shift on December 4, 2017 (Plaintiff’s second to last day of active work with QG Printing) comprising a first installment of 3.2 hours and a second installment of 8.92 hours, for a total of 12.12 hours, or 12 hours 7 minutes. In 24 addition to corroborating Defendants’ assertion that QG Printing did not schedule shifts in excess of 12 hours, this would appear to render false statements that Plaintiff was “routinely deprived” of second meal breaks and that 25 QG000001 through QG000006 show “shifts”—plural—in excess of 12 hours. The Court allows for the possibility that it has misread the work history set forth in QG000001 through QG000006. Counsel for Plaintiff is therefore 26 ORDERED to file within 10 days of electronic service of this Order authenticated documents clearly showing all shifts Plaintiff worked in excess of 12 hours while in QG Printing’s employ (and only shifts in excess of 12 hours), as 27 well as any materials counsel for Plaintiff believes might help the Court in understanding the apparent discrepancy between the data in Exhibit G to the Grant Declaration and statements made to the Court as to the frequency with which Plaintiff worked shifts in excess of 12 hours. 28 22 Case 1:18-cv-00899-AWI-EPG Document 54 Filed 09/18/20 Page 23 of 38 1 declarations provided by Defendants with respect to voluntarily skipping second meal breaks at 2 the end of long shifts, it appears unlikely that Defendants can show at trial that QG Printing had a 3 class-wide policy or practice or prohibiting second meal periods for shifts in excess of 12 hours, 4 and more likely than not that liability determinations in connection with second meal breaks for 5 shifts in excess of 12 hours would focus primarily on whether a given employee was somehow 6 prevented from taking a second meal break or whether that employee voluntarily skipped the 7 second meal break to get home earlier after the end of a long shift. This is particularly true, in the 8 Court’s estimation, because Plaintiff makes no showing that any shifts ran significantly over 12 9 hours and the one and only shift he apparently worked in excess of 12 hours was just 12 hours and 10 seven minutes. 11 While second meal break claims may raise a common question as to whether employees 12 were entitled to automatic premium pay for second meal breaks missed involuntarily on shifts in 13 excess of 12 hours, the Court finds that extensive individualized inquiries (focusing largely on 14 whether employees skipped second meal breaks voluntarily in the final few minutes of a long 15 shift) would likely be required to determine liability on second meal break claims. Consequently, 16 even assuming the Rule 23(a)(2) commonality requirement is satisfied, Plaintiff has failed to 17 satisfy the Rule 23(b)(3) predominance requirement for claims on behalf of the Second Meal 18 Break Subclass. 19 C. Meal Break Waiver Subclass 20 The proposed “Meal Break Waiver Subclass” comprises all non-exempt, hourly employees 21 in Defendants’ California facilities who worked at least one shift between five and six hours in 22 length or between 10 and 12 hours in length, in connection with claims that Defendants use 23 invalid, blanket meal waivers to deprive employees of a first meal break between the fifth and 24 sixth hour of work and to deprive employees of a second meal break between the tenth and twelfth 25 hours of work. 26 1. Applicable Law 27 The meal periods provided for under Section 512, subdivision (a) of the Labor Code (and 28 under Section 11, subdivisions (A) and (B), of Industrial Welfare Commission (“IWC”) Wage 23 Case 1:18-cv-00899-AWI-EPG Document 54 Filed 09/18/20 Page 24 of 38 1 Order 1-2001) may only be waived by mutual consent of both the employer and employee. See 2 Brinker, 53 Cal.4th at 1039. The first meal break, moreover, can only be waived for shifts “no 3 more than six hours,” and the second meal break can only be waived for shifts of “no more than 12 4 hours” where the first meal break was not waived. Cal. Labor Code § 512, subd. (a); 8 Cal. Code 5 Regs. § 11010, subd. 11(A)- (B). And, again, employers failing to provide required meal breaks 6 must provide premium pay. Cal. Lab. Code § 226.7, subd. (c); 8 Cal. Code Regs. § 11010, subd. 7 11(D). 8 2. Parties’ Arguments 9 It is undisputed that numerous putative members of the Meal Break Waiver Subclass 10 executed meal break waivers for shifts between five and six hours in length and for shifts between 11 10 and 12 hours in length as part of the new hire process and prior to commencing work with QG 12 Printing. See Doc. No. 49, Part II.C.2. Plaintiff contends that the prospective nature of these 13 waivers makes them ineffective and that employees who were denied a proper first meal break or a 14 proper second meal break based on such waivers are entitled to automatic premium pay. 15 Defendants do not dispute the use of waivers with respect to meal breaks but contend that the 16 waivers were valid. 17 3. Analysis 18 Data set forth by Plaintiff’s expert show that there was no first meal break on 85% of shifts 19 greater than five but less than six hours in length and no second meal break on 99.5% of shifts 20 greater than 10 hours but less than 12 hours in length. Moreover, there is no dispute that 21 prospective waivers executed at the commencement of employment were used extensively in 22 connection with first meal breaks on shifts of six hours or less and second meal breaks on shifts of 23 12 hours or less. Given these facts, it appears that determinations as to the validity of QG 24 Printing’s prospective waivers and QG Printing’s failure to provide premium pay automatically 25 will drive resolution of most—if not all—claims for the Meal Break Waiver Subclass and that any 26 individualized inquiries would pertain primarily to damages (based on the number of meal breaks 27 missed based on invalid waivers and the amount of premium payment improperly withheld). The 28 Court therefore finds that both commonality and preponderance are satisfied as to claims on behalf 24 Case 1:18-cv-00899-AWI-EPG Document 54 Filed 09/18/20 Page 25 of 38 1 of the Meal Break Waiver Subclass. See Brinker, 53 Cal. 4th at 1033 (“Claims alleging that a 2 uniform policy consistently applied to a group of employees is in violation of the wage and hour 3 laws are of the sort routinely, and properly, found suitable for class treatment.”) 4 D. Rest Break Subclass 5 The proposed “Rest Break Subclass” comprises all non-exempt, hourly employees in 6 Defendants’ California facilities who worked at least one shift of more than 3.5 hours during the 7 Class Period, in connection with claims that subclass members were unlawfully deprived of rest 8 breaks due to “Defendants’ practices and procedures requiring employees to remain on premises 9 for rest breaks and chronic understaffing.” 10 1. Applicable Law 11 Section 226.7, subdivision (b), of the Labor Code provides that “[n]o employer shall 12 require an employee to work during any meal or rest or recovery period mandated pursuant to an 13 … applicable order of the Industrial Welfare Commission ….” Cal. Labor Code § 226.7, subd. (b). 14 California IWC Wage Order No. 1-2001, subdivision 12(A), provides: 15 Every employer shall authorize and permit all employees to take rest periods, which insofar as practicable shall be in the middle of each work period. The 16 authorized rest period time shall be based on the total hours worked daily at the rate of ten (10) minutes net rest time per four (4) hours or major fraction thereof. 17 18 8 Cal. Code Regs. § 11010, subd. 12(A). 19 Further, the California Supreme Court held in Brinker that “[e]mployees are entitled to 10 20 minutes’ rest for shifts from three and one-half to six hours in length, 20 minutes for shifts of more 21 than six hours up to 10 hours, 30 minutes for shifts of more than 10 hours up to 14 hours, and so 22 on.” Brinker, 53 Cal. 4th at 1029. Employers are required to “authorize and permit” rest breaks, 23 but rest breaks can be waived. Id. at 1033. 24 Where an employer fails to provide an employee with required rest periods, the employer 25 must pay the employee an additional hour of compensation at the employee’s regular rate of pay 26 for each work day that a required rest period is not provided. Cal. Lab. Code§ 226.7, subd. (c); 8 27 Cal. Regs. Code § 11010, subd. 12(B). 28 25 Case 1:18-cv-00899-AWI-EPG Document 54 Filed 09/18/20 Page 26 of 38 1 2. Parties’ Arguments 2 Plaintiff contends that the rest break claims involve common questions as to whether 3 Defendants prevented employees from taking compliant rest periods “as a matter of uniform 4 practice” by failing to schedule rest breaks and imposing heavy workloads with insufficient 5 staffing and as to whether Defendants imposed a policy prohibiting employees from leaving the 6 premises during breaks. 7 Defendants argue that QG Printing had a “compliant written rest break policy” and that the 8 question of whether a given employee missed a rest break due to coercion or understaffing 9 requires an individualized inquiry in which “[t]he Court would need to inquire of every individual 10 class member whether he or she in fact took a rest break or did not, and if not, why not.” 11 3. Analysis 12 Plaintiff’s expert states that putative members of the Rest Break Subclass were collectively 13 entitled to nearly 1,480,575 breaks during the period of approximately five years that he reviewed 14 but provides no analysis as to how many breaks were missed because such information was not 15 available at the time he prepared his report and requires a survey of putative class members. 16 The one Jurupa Valley Declarant was deprived of five proper rest breaks each week. Of the 17 three West Sacramento Declarants, one was deprived of proper rest breaks less than once a week; 18 one was deprived of proper rest breaks twice a week; and one was deprived of proper rest breaks 19 five times per week. As to the Merced Declarants, one was deprived of proper rest breaks less than 20 once a week; one was deprived of proper rest breaks once or twice a week; one was deprived of 21 rest breaks twice per week; one never received a third rest break when working 10 or more hours; 22 and one “regularly” had to forego his rest breaks. The other Merced Declarants were deprived of 23 proper rest breaks at least three or four—and as many as eight to twelve times— per week. There 24 are no declarations from Box Springs, but substantially all declarants who were deprived of breaks 25 at the other three California facilities essentially state that the deprivations occurred because QG 26 Printing had a policy of failing to schedule rest breaks, assigned a demanding workload and 27 deployed insufficient staff. 28 Nine of the Merced Declarants state that QG Printing required employees to remain on-site 26 Case 1:18-cv-00899-AWI-EPG Document 54 Filed 09/18/20 Page 27 of 38 1 during breaks to physically observe ongoing projects, and Plaintiff has set forth what appears to be 2 an orientation presentation for the Merced facility stating that employees were only permitted to 3 leave the premises during meal breaks. Doc. No. 46-2, Ex. Q. Only one of the three West 4 Sacramento Declarants, however, states that employees were required to remain on the premises 5 during breaks, and Plaintiff provides no evidence of such a policy or practice in Jurupa Valley or 6 Box Springs. 7 Finally, Plaintiff himself testified in deposition that he skipped rest breaks “a lot” but that 8 no supervisor instructed or encouraged him not to take a break. 9 While the declarations appear to show that breaks were missed with some frequency at QG 10 Printing, the number of declarations is too small to convincingly corroborate Plaintiff’s contention 11 that QG Printing had a class-wide practice of discouraging breaks by understaffing heavy 12 workloads, particularly given the apparent variability in the rates at which declarants missed 13 breaks and Plaintiff’s own testimony that he was never discouraged from taking a break. There 14 may be cases where missed breaks are so prevalent—and where the rate of missed breaks is so 15 uniform—that the missed breaks themselves evidence a class-wide practice of some sort but, in 16 the Court’s view, Plaintiff has failed to meet that threshold here. 17 Similarly, there is some evidence (9 declarations and an orientation presentation) that QG 18 Printing prohibited employees in Merced from leaving the facility on rest breaks, but there is a 19 lack of such evidence as to the other three facilities (which presumably account for a substantial 20 portion of the proposed subclass). Moreover, even if a determination were made that QG Printing 21 had a class-wide policy prohibiting employees from leaving facilities at rest breaks (and that such 22 a policy was unlawful), trial would still involve not only the individualized work of determining 23 (presumably through questionnaires or some similarly targeted means) the extent to which this 24 policy harmed individual employees, but also the individualized work required to decide claims 25 involving breaks that were compromised for reasons unrelated to QG Printing’s alleged “on- 26 premises” policy. 27 At bottom, it appears more likely than not that establishing liability as to a given class 28 member in connection with missed breaks would require ascertaining through individualized 27 Case 1:18-cv-00899-AWI-EPG Document 54 Filed 09/18/20 Page 28 of 38 1 inquiry the extent to which each putative class member missed break time and then examining the 2 circumstances surrounding each missed break, including, for example, workload at the time and 3 what interactions, if any, took place with the employee’s supervisor as to the break in question. 4 Litigating such claims on a class basis could offer some efficiencies (for example, legal 5 determinations on the question of requiring employees to stay on site during breaks and the 6 question of whether premium pay must be automatic could potentially apply to a large number of 7 class members), but ultimately hundreds and perhaps thousands of employee-specific—and break- 8 specific—determinations could be required. The Court therefore finds that, although commonality 9 may be satisfied, the Rule 23(b)(3) predominance requirement is not satisfied as to claims for the 10 Missed Rest Break Subclass. 11 E. Off-the-Clock Work Subclass 12 The proposed “Off-the-Clock Work Subclass” comprises all non-exempt, hourly 13 employees in Defendants’ California facilities during the Class Period, in connection with claims 14 that Defendants maintained a class-wide policy and practice of requiring employees to determine 15 their assigned workstation by watching a scrolling monitor prior to clocking in for a shift. 16 1. Applicable Law 17 California law requires an employer to pay for all “hours worked” by an employee. See 18 Morillion v. Royal Packing Co., 22 Cal. 4th 575, 582 (2000). “Hours worked” means “the time 19 during which an employee is subject to the control of an employer, and includes all the time the 20 employee is suffered or permitted to work, whether or not required to do so.” 8 Cal. Code Regs., § 21 11010, subd. 2(G). “[T]hat employees are clocked out creates a presumption they are doing no 22 work,” and liability on an off-the-clock-work claim is, thus, “contingent on proof [that an 23 employer] knew or should have known off-the-clock work was occurring. Brinker, 53 Cal. 4th at 24 1051-52. 25 2. Parties’ Arguments 26 Plaintiff contends that Defendants implemented a uniform policy requiring employees to 27 report to an assignment board, obtain their assignment, and then go to the clock-in station nearest 28 their assignment before clocking in. According to Plaintiff, the existence and legality of this policy 28 Case 1:18-cv-00899-AWI-EPG Document 54 Filed 09/18/20 Page 29 of 38 1 are predominant questions of fact and law that can be resolved by common proof. Defendants 2 argue that this subclass cannot be certified because Plaintiff has not met his burden to show that 3 such a policy exists. 4 3. Analysis 5 The Jurupa Valley Declarant states he that he worked off the clock prior to his shift 6 approximately once a month because “[m]anagement required that [he] know [his] printer 7 assignment before going down to the floor” and that “he would often begin working before [his] 8 scheduled start time so that [he] could take an online safety training course.” 9 Of the three West Sacramento Declarants, one worked off-the-clock for 30 minutes once or 10 twice per month, checking assignments and communicating “with supervisors and other 11 employees to discuss ongoing issues”; one cleaned up his work area after clocking out 12 approximately three times a week; and one made no statement regarding off-the-clock work. 13 Of the 12 Merced Declarants, three worked off the clock on a regular basis because 14 management required them to check monitors for their assignments before commencing work; one 15 states he worked off-the-clock five times per week because he was not compensated for the time it 16 took to put on his uniform prior to work; and seven make no statement indicating that they worked 17 off the clock prior to the commencement of a shift. 18 One QG Printing employee testified at deposition that employees receive assignments from 19 a scrolling list on two or more monitors located near the entrance to each facility but did not know 20 how long it took to scroll through the complete list. 21 Plaintiff, for his part, testified that it takes “longer” than a couple of seconds to check the 22 assignment board, but also testified that he was allowed to clock in ahead of his shift to have time 23 to look at the assignment board (although he could not recall how much time he was given to do 24 so). 25 The Court agrees with Defendants that Plaintiff has failed to make a showing that 26 Defendants had a policy or practice of requiring employees to work off-the-clock by scrolling 27 through assignment monitors before clocking in for a shift. Only 25% of Plaintiff’s declarants 28 state that they checked monitors prior to clocking in; there is no declaration at all as to checking 29 Case 1:18-cv-00899-AWI-EPG Document 54 Filed 09/18/20 Page 30 of 38 1 monitors from the Box Springs facility; and Plaintiff himself concedes that he was permitted to 2 clock in prior to the commencement of his shift to have time to check the assignment board. On 3 these facts, it appears to the Court that the question of whether QG Printing had a policy or 4 practice of requiring employees to check an assignment board prior to clocking-in would be of 5 limited significance at trial and that adjudication of off-the-clock work claims would focus largely 6 on individualized inquiries regarding the extent to which a given employee was improperly 7 required or suffered to engage in other conduct—such as taking safety courses, communicating 8 with co-workers, engaging in cleaning before or after shifts, or working through meal breaks. 9 Thus, the Court finds that neither the commonality requirement under Rule 23(a)(2) nor the 10 preponderance requirement under Rule 23(b)(3) has been satisfied with respect to claims for the 11 proposed Off-the-Clock Work Subclass. 12 F. Business Expense Subclass 13 The proposed Business Expense Subclass comprises all non-exempt, hourly employees in 14 Defendants’ California facilities during the Class Period who purchased steel-toed boots for use at 15 work in accordance with Defendants’ policies, in connection with claims that QG Printing did not 16 provide legally sufficient reimbursement for such purchases. 17 1. Applicable Law 18 Section 2802, subdivision (a), of the Labor Code provides “[a]n employer shall indemnify 19 his or her employee for all necessary expenditures or losses incurred by the employee in direct 20 consequence of the discharge of his or her duties or of his or her obedience to the directions of the 21 employer ….” Cal. Labor Code § 2802, subd. (a). Section 2802 “is designed to prevent employers 22 from passing their operating expenses on to their employees,” Gattuso v. Harte-Hanks Shoppers, 23 Inc., 42 Cal. 4th 554, 562 (2007), and an employer that “knows or has reason to know that the 24 employees have incurred reimbursable expenses” owes a “duty to exercise due diligence and take 25 any and all reasonable steps to ensure” that the employees are reimbursed. Stuart v. RadioShack, 26 641 F. Supp. 2d 901, 904 (N.D. Cal. 2009). 27 2. Parties’ Arguments 28 Plaintiff contends that Defendants maintained a policy requiring employees to wear steel- 30 Case 1:18-cv-00899-AWI-EPG Document 54 Filed 09/18/20 Page 31 of 38 1 toed boots on the production floor for safety reasons. Defendants provided reimbursement of up to 2 $50 per year for the purchase of steel-toed safety boots, but according to Plaintiff, the amount was 3 insufficient. For example, Plaintiff set forth evidence showing that a mobile shoe retailer that 4 Defendants engaged to make steel-toed boots available for purchase on site did not sell steel-toed 5 boots for less than $50 and that a witness for Defendants paid more than $50 for her steel-toed 6 boots. 7 Defendants contend that it had no legal obligation to provide reimbursement for steel-toed 8 boots because steel-toed boots are generally usable in factory work for other employers and that, 9 in any event, steel-toed boots sufficient to satisfy Defendants’ safety requirements were available 10 from Amazon and Walmart for less than $50. According to Defendants, some employees spent 11 more than $50 on steel-toed boots out of personal preference. Moreover, Defendants contend 12 variation in the amount employees spent on steel-toed boots precludes class certification because 13 “to determine liability, it would be necessary to engage in individualized inquiries as to whether it 14 was reasonably necessary to purchase shoes above the Company-provided budget.” 15 3. Analysis 16 The Court agrees with Plaintiff. Determinations on the questions of whether steel-toed 17 shoes were a reimbursable expense and whether the $50 allowance was sufficient would have 18 significant class-wide implications. For example, a finding that Defendants were not obligated to 19 provide reimbursement for steel-toed shoes could extinguish the claims as to all putative class 20 members completely,9 as could a finding that adequate steel-toed shoes were available to putative 21 class members for $50 or less. Conversely, in the event of a finding that Defendants were 22 obligated to provide reimbursement for steel-toed boots coupled with a finding that suitable boots 23 24 9 It would be improper to pass on the legality of Defendants’ alleged policy with respect to reimbursement for steel- 25 toed shoes on this motion and the Court declines to do so. See Stockwell v. City & County of San Francisco, 749 F.3d 1107, 1113-14 (9th Cir. 2014) (“[T]he district court erred in denying class certification because of its legal error of 26 evaluating merits questions, rather than focusing on whether the questions presented, whether meritorious or not, were common to the members of the putative class.”); see also, Amgen Inc. v. Connecticut Ret. Plans & Tr. Funds, 568 27 U.S. 455, 466 (2013) (“Merits questions may be considered to the extent—but only to the extent—that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied.”). 28 31 Case 1:18-cv-00899-AWI-EPG Document 54 Filed 09/18/20 Page 32 of 38 1 were not available for $50 or less, individualized liability determinations would be greatly 2 minimized and damages could potentially be determined based largely on expert analysis of 3 transaction records. 4 Thus, it appears that questions as to Defendants’ legal obligations and the pricing of steel- 5 toed boots could be determined in more or less one stroke and that such determinations would 6 drive the resolution of most class member claims, easily predominating over any individualized 7 questions that may arise. Thus, the Court finds that the commonality requirement under Rule 8 23(a)(2) and the predominance requirement under Rule 23(b)(3) are satisfied as to claims for the 9 Business Expense Subclass. 10 G. Derivative Claims Subclass 11 Plaintiff seeks omnibus certification—through the rubric of a “Derivative Claims 12 Subclass”—of claims under Sections 510, 1198, 1194, 1197, 1197.1, 201, 202, 203, 204, and 226 13 of the Labor Code and under Section 17200, et seq., of the Business & Professions Code. 14 Plaintiff asserts, without elaboration, that these claims are “entirely or partially derivative” 15 of the claims alleged as to each of the foregoing subclasses and “should therefore be certified 16 along with them.” Defendants, for their part, contend that certification of these claims is 17 unwarranted because the core claims as to each subclass are themselves unsuitable for class 18 treatment. 19 The Court finds it hard to believe that Plaintiff would expect the Court to find, in one fell 20 swoop, that 11 separate claims are suitable for certification based solely on the conclusory and 21 categorical assertion that they are “entirely or partially derivative” of core claims and without the 22 benefit of any substantive briefing (or, at a minimum, some useful explanation as to how Plaintiff 23 believes his “derivative” claims intersect with his core claims). 24 In any event, it is Plaintiff’s burden to affirmatively satisfy the Rule 23(a)(2) commonality 25 requirement and the Rule 23(b)(3) predominance requirement as to claims for which he seeks class 26 certification. See Dukes, 564 U.S. 338, 350 (2011); see also, Longest v. Green Tree Servicing 27 LLC, 308 F.R.D. 310, 321 (C.D. Cal. 2015) (“More than a pleading standard, Rule 23 requires the 28 party seeking class certification to affirmatively demonstrate compliance with the rule[.]”) 32 Case 1:18-cv-00899-AWI-EPG Document 54 Filed 09/18/20 Page 33 of 38 1 (citations omitted). Plaintiff has made no meaningful attempt to do so here, and thus the Court 2 cannot find that certification of the claims in the Derivative Claims Subclass is warranted. See 3 Gomez, 334 F.R.D. at 266. 4 III. Typicality 5 Under Rule 23(a)(3), class certification is proper only where “claims or defenses of the 6 representative parties are typical of the claims or defenses of the class.” Fed.R.Civ.P. 23(a)(3). 7 “The purpose of the typicality requirement is to assure that the interest of the named representative 8 aligns with the interests of the class.” Hanon, 976 F.2d at 508 (citation omitted). Similarly, 9 “typicality determines whether a sufficient relationship exists between the injury to the named 10 plaintiff and the conduct affecting the class so that the court may properly attribute a collective 11 nature to the challenged conduct.” 1 Newberg on Class Actions § 3:29 (5th ed.) (citations 12 omitted). 13 The Ninth Circuit’s test of typicality is (1) “whether other members have the same or 14 similar injury,” (2) “whether the action is based on conduct which is not unique to the named 15 plaintiffs,” and (3) “whether other class members have been injured by the same course of 16 conduct.” Wolin v. Jaguar Land Rover North America, LLC, 617 F.3d 1168, 1175 (9th Cir. 2010) 17 (citation and internal quotation marks omitted). The representative plaintiff’s claims need not be 18 identical to those of the class, but rather need only be “reasonably co-extensive with those of 19 absent class members,” Hanlon, 150 F.3d at 1020, such that the claims of the putative class are 20 “fairly encompassed by the named plaintiff’s claims.” Falcon, 457 U.S. at 156 (internal quotation 21 marks omitted). 22 Plaintiff argues that typicality is satisfied because Plaintiff is a member of the proposed 23 class and has directly suffered the harms alleged as to each of the proposed subclasses, while 24 Defendants argue that typicality is not satisfied because the roles and responsibilities of the “38 25 different jobs” covered by the proposed class and subclasses varied significantly. For, example, 26 Defendants state that forklift divers “would not report to a workstation [], need to check the 27 assignment board,” or miss breaks due to printer malfunctions. 28 As set forth above, the Court finds that only claims for the Meal Break Waiver Subclass 33 Case 1:18-cv-00899-AWI-EPG Document 54 Filed 09/18/20 Page 34 of 38 1 and the Business Expense Subclass satisfy the commonality and preponderance requirements for 2 certification. Plaintiff has set forth evidence showing that he executed a prospective meal break 3 waiver at the commencement of this employment with QG Printing, Doc. No. 46-2, Ex. H, as well 4 as evidence showing that he missed meal breaks putatively covered by the waiver. Doc. No. 46-1, 5 Part IV.D. Similarly, he sets forth evidence showing that he paid more than $50 for steel-toed 6 boots for work at QG Printing. Id. As such, it appears Plaintiff suffered the “same or similar 7 injury” as other members of each of the subclasses in question due to uniform policies that had 8 essentially the same effect on all subclass members. See Wolin, 617 F.3d at 1175. The Court 9 therefore finds that typicality is satisfied as to the Meal Break Waiver Subclass and the Business 10 Expense Subclass. 11 IV. Adequacy 12 Pursuant to Rule 23(a)(4), a class action can be maintained only where the “the 13 representative parties will fairly and adequately protect the interests of the class.” Fed.R.Civ.P. 14 23(a)(4). The term “parties” refers to both the class representative and the class counsel. See Beck 15 v. Maximus, Inc., 457 F.3d 291, 296 (3d Cir. 2006); In re Conseco Life Ins. Co. LifeTrend Ins. 16 Sales and Marketing Litigation, 270 F.R.D. 521, 531 (N.D. Cal. 2010). Therefore, “the standard 17 for adequacy splits into two prongs: adequacy of the proposed class representative and adequacy 18 of the attorneys seeking appointment as class counsel.” 1 Newberg on Class Actions § 3:54 (5th 19 ed.). 20 A. Adequacy of Class Representative 21 The adequacy of the class representative focuses on “whether there are conflicts of interest 22 between the proposed representative and the class, and whether the proposed representative is 23 qualified to serve as a class representative ....” 1 Newberg on Class Actions § 3:54 (5th ed.). 24 Defendants argue that Plaintiff is not an adequate class representative because he has an 25 “irreconcilable conflict” with non-exempt, hourly-paid supervisors who allegedly pressured him to 26 forgo rest and meal breaks. Further, Defendants argue that the scope and duration of Plaintiff’s 27 employment was too limited for him to provide adequate representation for hundreds of 28 employees who worked in nearly 40 positions at four different facilities over a span of several 34 Case 1:18-cv-00899-AWI-EPG Document 54 Filed 09/18/20 Page 35 of 38 1 years. 2 These arguments are essentially irrelevant in light of the Court’s finding that only claims 3 for the Meal Break Waiver Subclass and the Business Expense Subclass satisfy the commonality 4 and predominance requirements for certification. QG Printing’s waivers and steel-toed boots 5 policy appear to have applied in the same way to all members of the corresponding subclasses and 6 the Court sees no reason why challenging either policy would give rise to a conflict between 7 Plaintiff and his former supervisors. Moreover, the record shows that Plaintiff suffered the same 8 alleged injury as his former colleagues in connection with QG Printing’s waivers and 9 reimbursement policy (inasmuch as he supposedly waived meal breaks paid $200 for work boots 10 and) and that he has actively participated in developing this case. See East Texas Motor Freight 11 Sys., Inc. v. Rodriguez, 431 U.S. 395, 403 (1977) (adequacy requires that the “class representative 12 must be part of the class and ‘possess the same interest and suffer the same injury’ as the class 13 members”). The Court therefore finds that Plaintiff is an adequate representative of the Meal 14 Break Waiver Subclass and of the Business Expense Subclass. 15 B. Adequacy of Class Counsel 16 The adequacy of class counsel focuses on “whether the attorneys who seek to represent the 17 class are competent to do the job.” 1 Newberg on Class Actions § 3:54 (5th ed.). To determine the 18 adequacy of the class counsel, Rule 23(g) requires a court to consider the following four factors: 19 “(i) the work counsel has done in identifying or investigating potential claims in the action; (ii) 20 counsel’s experience in handling class actions, other complex litigation, and the types of claims 21 asserted in the action; (iii) counsel’s knowledge of the applicable law; and (iv) the resources that 22 counsel will commit to representing the class.” Fed.R.Civ.P. 23(g)(1)(A)(i)-(iv). 23 As detailed in the Grant Declaration, Plaintiff’s counsel, Capstone Law APC (“Capstone 24 Law”), specializes in wage and hour litigation and has achieved class certification and final 25 approval of settlement in multiple class actions. Doc. No. 46-2. Further, Capstone Law attorneys 26 Melissa Grant, Bevin Allen Pike, Orlando Villalba and Joseph Hakakian have devoted significant 27 time and resources to this case, reviewing 77,000 pages of documents, conducting and defending 28 numerous depositions, identifying putative class members, and engaging an expert to analyze time 35 Case 1:18-cv-00899-AWI-EPG Document 54 Filed 09/18/20 Page 36 of 38 1 and pay records produced in this litigation to support the theories asserted in this motion. Id. The 2 Court therefore finds that Capstone Law satisfies the adequacy requirement as to class counsel. 3 V. Superiority 4 The superiority requirement of Rule 23(b)(3) asks whether class aggregation is superior to 5 other available procedural alternatives, such as individual actions, coordinated individual actions, 6 test or model cases, and consolidated individual actions. See Advisory Committee Note to 1966 7 Amendments to Rules of Civil Procedure, 39 F.R.D. 69, 103 (1966) (discussing alternative 8 procedures). Rule 23(b)(3) lists four illustrative, non-exhaustive factors to help guide courts in 9 determining whether the advantages of class aggregation are present: (1) the class members’ 10 interests in individually controlling their own litigation; (2) the extent and nature of any already- 11 pending litigation concerning the controversy; (3) the desirability of concentrating claims in one 12 judicial forum; and (4) potential problems that could arise in managing the case as a class suit. 13 Fed. R. Civ. P. 23(b)(3). 14 Neither side has provided damages estimates, but even assuming some class members were 15 improperly deprived of meal breaks on every shift for the entire Class Period and purchased steel- 16 toed boots at high price points in each year of the Class Period, it is hard to see how the total 17 individual recovery on claims relating to meal break waivers and steel-toed boots could exceed 18 $50,000 (roughly double the amount of lost premium pay where an employee making $20 per 19 hour missed a meal break in every shift for the entire Class Period) or otherwise come close to 20 making individual litigation of Meal Break Waiver claims and Business Expense claims cost- 21 effective. Moreover, the Court does not see the advantage to any plaintiff of litigating the legality 22 of QG Printing’s meal waivers and reimbursement policy individually, since such determinations 23 would necessarily turn on company records as opposed to facts specific to a given employee. 24 As to the other three elements of the superiority analysis, the Court is not aware of pending 25 litigation regarding the subject matter of this case; there is no good reason to spread litigation 26 involving two policies of a single company across multiple fora, particularly since this action 27 pertains solely to employees in California; and while performing damages calculations for 28 hundreds of class members always involves some complications, the Court does not foresee 36 Case 1:18-cv-00899-AWI-EPG Document 54 Filed 09/18/20 Page 37 of 38 1 special problems managing class litigation around QG Printing’s waiver and reimbursement 2 policies. Thus, the Court finds that the superiority requirement is satisfied as to the Meal Break 3 Waiver Subclass and as to the Business Expense Subclass. 4 CONCLUSION 5 For the foregoing reasons, the Court finds that the Meal Break Waiver Subclass and the 6 Business Expense Subclass satisfy the requirements for class certification in Rule 23(a) and Rule 7 23(b)(3) of the Federal Rules of Civil Procedure and that Plaintiff’s other proposed subclasses are 8 not suitable for class treatment. Further, the Court finds that Plaintiff Paul Clark and Capstone 9 Law APC are adequate representatives of the two subclasses deemed suitable for certification. 10 ORDER 11 Accordingly, IT IS HEREBY ORDERED as follows: 12 1. Plaintiff’s certification motion (Doc. No. 46) is GRANTED, IN PART, and DENIED, 13 IN PART, as follows: 14 a. Plaintiff’s claims in connection with the Meal Break Waiver Subclass, as 15 identified supra, is CERTIFIED for class aggregation under Rule 23(b)(3), with 16 the following class definition: 17 All individuals who were employed by QG Printing II, LLC in California as 18 non-exempt, hourly-paid employees at any time from May 29, 2014 through the 19 date of this Order and who worked at least one shift between five and six hours 20 in length or at least one shift between 10 and 12 hours in length. 21 b. Plaintiff’s claims in connection with the Business Expense Subclass, as 22 identified supra, is CERTIFIED for class aggregation under Rule 23(b)(3), with 23 the following class definition: 24 All individuals who were employed by QG Printing II, LLC in California as 25 non-exempt, hourly-paid employees at any time from May 29, 2014 through the 26 date of this Order and who worked, at any point during that period, in a 27 capacity where the use of protective footwear was required under QG Printing 28 II, LLC and / or Quad/Graphics, Inc. policy. 37 Case 1:18-cv-00899-AWI-EPG Document 54 Filed 09/18/20 Page 38 of 38 1 c. Plaintiff’s other claims are NOT CERTIFIED for class aggregation under Rule 2 23. 3 d. Paul Clark is APPOINTED as the class representative; 4 e. Capstone Law APC is APPOINTED as the class counsel. 5 2. The parties must promptly MEET AND CONFER about the submission of a joint 6 stipulated class notice and distribution plan. Within 21 days of this order, the parties 7 must FILE either a stipulated class notice and distribution plan or a notice that no 8 stipulation can be agreed to. If the parties cannot agree to a class notice or distribution 9 plan, then Plaintiff must FILE a proposed class notice and distribution plan within 10 thirty-five days of this order, and Defendants shall have fourteen days following 11 Plaintiff’s filing to file any objections, and Plaintiff shall have seven days following 12 Defendants’ filing to FILE a reply. 13 3. Plaintiff shall FILE within 10 days of the date of electronic service of this Order 14 documents sufficient to show clearly all (and only) shifts worked by Plaintiff in excess 15 of 12 hours while in the employ of QG Printing II, LLC, as well as an explanation as to 16 any discrepancy between the contents of such documents and statements made in 17 briefing for this motion as to the frequency with which Plaintiff worked shifts in excess 18 of 12 hours. 19 4. This case is REFERRED BACK to the assigned magistrate judge for further 20 scheduling and other proceedings consistent with this Order. 21 IT IS SO ORDERED. 22 23 Dated: September 17, 2020 SENIOR DISTRICT JUDGE 24 25 26 27 28 38