Perez v. Leprino Foods Company ( 2021 )

Case 1:17-cv-00686-AWI-BAM Document 74 Filed 01/06/21 Page 1 of 30 1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 JOHN PEREZ, on behalf of himself and on CASE NO. 1:17-cv-00686-AWI-BAM behalf of all other similarly situated 8 individuals, ORDER ON PLAINTIFF’S MOTION 9 Plaintiff, FOR CLASS CERTIFICATION 10 v. (Doc. No. 48) 11 LEPRINO FOODS COMPANY, a Colorado Corporation; LEPRINO FOODS 12 DAIRY PRODUCTS COMPANY, a Colorado Corporation; and DOES 1–50, 13 inclusive, 14 Defendants. 15 16 17 In this class action lawsuit, John Perez is suing two cheese manufacturing companies, 18 Leprino Foods Company and Leprino Foods Dairy Products Company.1 Perez is a former Leprino 19 employee. Broadly, Perez alleges that Leprino violated California wage-and-hour laws by (1) not 20 paying employees minimum wages for all hours worked; (2) not providing employees with legally 21 compliant meal and rest periods; and (3) based on these violations, not paying employees 22 separation wages or providing them with accurate wage statements, and engaging in unfair 23 competition practices. Perez now moves for class certification under Federal Rule of Civil 24 Procedure 23(b)(3). Having reviewed and considered all the briefing and evidence submitted by 25 26 27 1 In their class certification briefing, the parties, including both Defendants (responding as one), make no distinction between the Leprino entities. Rather, the parties treat both Defendants as if they are a single “Leprino” entity. The 28 Court will adopt that practice in this order. Case 1:17-cv-00686-AWI-BAM Document 74 Filed 01/06/21 Page 2 of 30 1 the parties, the Court will grant in part and deny in part Perez’s motion.2 2 3 BACKGROUND 4 Leprino manufactures and processes cheese and dairy ingredients at its Lemoore East 5 facility in Lemoore, California. Lemoore East, which is one of several Leprino facilities in the 6 State of California, generally operates twenty-four hours a day, seven days a week, and has 7 approximately 140 nonexempt, hourly employee positions, for which Leprino employs about 263 8 individuals to fill. Nearly all of the nonexempt, hourly employees at the Lemoore East facility are 9 represented by Creamery Employees and Drivers Union, Teamsters Local No. 517. Leprino and 10 the Union negotiate and execute a collective bargaining agreement (“CBA”) that details the terms 11 and conditions of employment at Lemoore East for all Union-represented workers. This includes 12 terms and conditions regarding pay, meal periods, and rest periods. 13 Perez filed his lawsuit on April 13, 2017. Doc. No. 1. In his second-amended complaint, 14 Perez raises the following claims on behalf of himself and all similarly situated putative class 15 members: (1) failure to pay minimum wages, Cal. Labor Code §§ 510, 558, 1194, and 1198, 16 California Industrial Welfare Commission Wage Order 8-2001 (“Wage Order 8”); (2) failure to 17 pay wages for all hours worked, Cal. Labor Code §§ 204, 1194, and Wage Order 8; (3) failure to 18 provide legally compliant meal and rest periods or compensation in lieu thereof, Cal. Labor Code 19 §§ 226.7, 512, and Wage Order 8; (4) failure to pay wages upon separation of employment, Cal. 20 Labor Code §§ 201–203; (5) failure to furnish accurate wage statements, Cal. Labor Code § 226; 21 and (6) unfair competition law violations, Cal. Bus. & Profs. Code § 17200, et seq.3 Doc. No. 25. 22 As pleaded, the minimum wage claim is derivative of the all hours worked claim, and each of the 23 24 2 Also before the Court is Leprino’s request for leave to file a sur-reply in opposition to Perez’s motion, as well as Perez’s opposition to this request. Doc. Nos. 69 & 70. In brief, Leprino seeks an opportunity to respond to a section 25 in Perez’s reply brief that asks the Court to strike or view with skepticism certain declarations and testimony presented by Leprino on grounds of witness coercion. Leprino asserts that this content consists of new argument that 26 misrepresents the facts and misstates the law. Having considered the matter within the greater context of this certification dispute, the Court declines Perez’s invitation to strike or otherwise disregard any of the challenged 27 evidence. Accordingly, Leprino’s request to file a sur-reply will also be denied. 3 Perez also pleaded causes of action for failure to pay overtime wages and conversion; however, the Court previously 28 granted Leprino’s motion to dismiss these claims. Doc. No. 29. 2 Case 1:17-cv-00686-AWI-BAM Document 74 Filed 01/06/21 Page 3 of 30 1 latter three claims (separation wages, wage statements, and unfair competition) is derivative of the 2 all hours worked and meal and rest periods claims. Perez now seeks certification of the class for 3 purposes of all six claims. Doc. No. 48. 4 5 LEGAL STANDARD 6 A class action is a procedural mechanism that allows for representative litigation. This 7 means that one or more class members may “litigate on behalf of many absent class members, and 8 those class members are bound by the outcome of the representative’s litigation.” 1 William 9 Rubenstein, Newberg on Class Actions § 1:1 (5th ed. 2012) (citing Supreme Tribe of Ben Hur v. 10 Cauble, 255 U.S. 356, 363 (1921)). “The class action is ‘an exception to the usual rule that 11 litigation is conducted by and on behalf of the individual named parties only.’” Comcast Corp. v. 12 Behrend, 569 U.S. 27, 33 (2013) (quoting Califano v. Yamasaki, 442 U.S. 682, 700–01 (1979)). 13 Class actions are governed by Rule 23 of the Federal Rules of Civil Procedure, which 14 imposes a two-step test for deciding whether a class may be certified. Under the first step, the 15 court determines whether the moving party has established four perquisites: 16 (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the 17 representative parties are typical of the claims or defenses of the class; and (4) the 18 representative parties will fairly and adequately protect the interests of the class. 19 Fed. R. Civ. P. 23(a)(1)–(4). If the prerequisites of Rule 23(a) are met, the court considers 20 whether the proposed class action meets at least one of the three provisions of Rule 23(b). Fed. R. 21 Civ. P. 23(b). Relevant here, Rule 23(b) states that a class action may be maintained if “the court 22 finds that the questions of law or fact common to class members predominate over any questions 23 affecting only individual members, and that a class action is superior to other available methods 24 for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). 25 A party moving to certify a class action bears the burden of affirmatively demonstrating 26 compliance with Rule 23. Comcast, 569 U.S. at 33. “The Rule ‘does not set forth a mere pleading 27 standard,’” but instead demands the moving party establish through evidentiary proof that the 28 proposed class action satisfies the prerequisites of Rule 23(a) and one of the provisions of Rule 3 Case 1:17-cv-00686-AWI-BAM Document 74 Filed 01/06/21 Page 4 of 30 1 23(b). Id. (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011)).4 To ensure the 2 moving party has “satisfied” its burden, the district court must conduct a “rigorous analysis.” Id. 3 Because the “class determination generally involves considerations that are enmeshed in the 4 factual and legal issues comprising the plaintiff’s cause of action,” this rigorous analysis may 5 include “prob[ing] behind the pleadings” and “overlap with the merits of the plaintiff’s underlying 6 claim.” Id. at 33–34. Yet, “‘[n]either the possibility that a plaintiff will be unable to prove his 7 allegations, nor the possibility that the later course of the suit might unforeseeably prove the 8 original decision to certify the class wrong, is a basis for declining to certify a class which 9 apparently satisfies’ Rule 23.” Sali v. Corona Reg’l Med. Ctr., 909 F.3d 996, 1004−05 (9th Cir. 10 2018) (quoting Blackie v. Barrack, 524 F.2d 891, 901 (9th Cir. 1975)). Ultimately, the decision to 11 grant or deny a motion for class certification under Rule 23 is committed to the broad discretion of 12 the trial court. Bateman v. Am. Multi–Cinema, Inc., 623 F.3d 708, 712 (9th Cir. 2010). 13 14 DISCUSSION 15 A. Class Definition 16 Before turning to the requirements of Rule 23(a) and (b)(3), an issue regarding the 17 proposed class definition must be resolved. Fed. R. Civ. P. 23(c)(1)(B) (“An order that certifies a 18 class action must define the class . . . .”). District courts have discretion to modify class 19 definitions where necessary. Nevarez v. Forty Niners Football Co., 326 F.R.D. 562, 575 (N.D. 20 Cal. 2018); Campbell v. PricewaterhouseCoopers, LLP, 253 F.R.D. 586, 594 (E.D. Cal. 2008). 21 Perez seeks certification of the following class: 22 All non-exempt hourly workers who are currently employe[d], or formerly have been employed, as non-exempt hourly employees at Leprino’s Lemoore East plant 23 in Lemoore, California, at any time within four years prior to the filing of the 24 original complaint until resolution of this action. 25 With one exception, this definition describes a class that is ascertainable based on objective 26 4 Courts generally require the moving party to demonstrate by a preponderance of the evidence that class certification 27 is appropriate. 3 Newberg on Class Actions § 7:21 (citing cases, including Martin v. Sysco Corp., 325 F.R.D. 343, 354 (E.D. Cal. 2018) (“While Rule 23 does not specifically address the burden of proof to be applied, courts routinely 28 employ the preponderance of the evidence standard.”)). 4 Case 1:17-cv-00686-AWI-BAM Document 74 Filed 01/06/21 Page 5 of 30 1 criteria.5 The lone problem rests with the class period’s unspecified end date—“until resolution of 2 this action”—which both “creates a moving target and presents potential case management 3 problems.” Taylor v. Autozone, Inc., No. 10-cv-8125, 2011 WL 2357652, at *1 (D. Ariz. June 14, 4 2011); Hart v. Rick’s NY Cabaret Int’l, Inc., Case No. 09-cv-3043, 2013 WL 11272536, at *5 5 (S.D.N.Y. Nov. 18, 2013) (explaining why an “open-ended end-date is untenable”). A specified 6 end date, in contrast, promotes the “interests of clarity and finality” and “helps ensure that 7 plaintiff-specific discovery will be completed in a timely manner.” Taylor, 2011 WL 2357652, at 8 *1. Perez confronts this problem in his reply brief and states that the class definition should be 9 revised to include a specified end date. The Court agrees, and will exercise its discretion to set a 10 new class period end date as the date of this certification order. See id. (redefining unascertainable 11 class period end date as date of conditional class certification order); Cruz v. Dollar Tree Stores, 12 Inc., No. 07-cv-2050, 2009 WL 1974404, at *2 (N.D. Cal. July 2, 2009) (redefining 13 unascertainable class period end date as the date of certification order). 14 15 B. Numerosity 16 Pursuant to Rule 23(a)(1), a class action is maintainable only if “the class is so numerous 17 that joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). Leprino does not contest 18 that the proposed class satisfies this requirement. Based on the parties’ representations, the 19 proposed class includes at least 300 individuals. Crist Decl. ¶ 10. This satisfies the numerosity 20 requirement of Rule 23(a)(1). See Californians for Disability Rights, Inc. v. Cal. Dep’t of Transp., 21 5 The Court rejects Leprino’s contention that the proposed class is not “ascertainable” because it captures employees 22 who have not suffered injury and indiscriminately lumps all class members together for purposes of several different theories of potential liability. Recognizing that presentation of an ascertainable class is often considered an implicit 23 prerequisite to certification, the Court finds that Perez’s proposed class is clearly defined and identifiable based on objective criteria. See Briseno v. ConAgra Foods, Inc., 844 F.3d 1121, 1124 nn.3−4 (9th Cir. 2017) (describing ways 24 in which courts have considered “ascertainability” within certification decisions under Rule 23). Leprino’s reliance on Ortiz v. CVS Caremark Corp., No. C-12-05859 EDL, 2013 WL 6236743, at *5−6 (N.D. Cal. Dec. 2, 2013), is 25 unavailing. In Ortiz, the court found that two subclasses were not ascertainable because there were no records showing which employees performed the work activity that allegedly went uncompensated. The same problem is not 26 present here. Perez seeks certification of a proposed class based on all individuals who worked for Leprino as nonexempt, hourly employees at the Lemoore East facility during the specified class period. At this time, it can be 27 presumed that Leprino has maintained records identifying such individuals. (The Court will also presume that relevant records exist regarding the on-duty meal period and separation wages subclasses that are discussed in more 28 detail below.) 5 Case 1:17-cv-00686-AWI-BAM Document 74 Filed 01/06/21 Page 6 of 30 1 249 F.R.D. 334, 347 (N.D. Cal. 2008) (stating that “precedent suggests that 20−40 class members 2 is the ‘grey area’ for numerosity”); see also Gomez v. J. Jacobo Farm Labor Contractor, Inc., 334 3 F.R.D. 234, 251 (E.D. Cal. 2019) (explaining that an exact number of class members is not 4 required for certification if it is reasonable to believe that joinder would be impracticable). 5 6 C. Commonality 7 Pursuant to Rule 23(a)(2), a class action is maintainable only if “there are questions of law 8 or fact common to the class.” Fed. R. Civ. P. 23(a)(2). To meet the commonality requirement, 9 class claims must be based on a “common contention . . . capable of classwide resolution.” Wal- 10 Mart Stores, 564 U.S. at 350. This means that determination of the “truth or falsity” of that 11 contention “will resolve an issue that is central to the validity of each one of the claims in one 12 stroke.” Id. Certification does not turn on “the raising of common ‘questions’—even in droves— 13 but, rather the capacity of a classwide proceeding to generate common answers apt to drive the 14 resolution of the litigation.” Id. (quoted source omitted). In other words, not “every question of 15 law or fact must be common to the class; all that Rule 23(a)(2) requires is ‘a single significant 16 question of law or fact.’” Abdullah v. U.S. Sec. Assocs., Inc., 731 F.3d 952, 957 (9th Cir.2013) 17 (emphasis omitted) (quoting Mazza v. Am. Honda Motor Co., 666 F.3d 581, 589 (9th Cir. 2012)). 18 Using his six pleaded causes of action, Perez asserts three class claims: an off-the-clock 19 claim, a meal and rest period claim, and the derivative claims (considered as one). These claims, 20 and Perez’s theories of liability for each, will be examined in turn. See Jimenez v. Allstate Ins. 21 Co., 765 F.3d 1161, 1165−66 (9th Cir. 2014) (“Whether a question will drive the resolution of the 22 litigation necessarily depends on the nature of the underlying legal claims that the class members 23 have raised.”). 24 25 1. Off-the-clock claim 26 California’s Wage Order 8 applies broadly to industries handling products after harvest. 27 Cal. Code. Regs. tit. 8 § 11080(1). Under the law, employers must pay employees “not less than 28 the applicable minimum wage for all hours worked.” Id. § 11080(4)(B). “‘Hours worked’ means 6 Case 1:17-cv-00686-AWI-BAM Document 74 Filed 01/06/21 Page 7 of 30 1 the time during which an employee is subject to the control of an employer, and includes all the 2 time the employee is suffered or permitted to work, whether or not required to do so.” Id. 3 § 11080(2)(G). Under this definition, pre- or post-shift activities may be considered hours worked 4 if the employees are “subject to the control” of their employer. See Morillion v. Royal Packing 5 Co., 22 Cal. 4th 575, 587 (2000). To establish liability for an off-the-clock claim, a plaintiff must 6 prove that (1) work was performed for which compensation was not received; (2) the defendant 7 knew or should have known that the plaintiff performed this work; and (3) the defendant stood 8 idly by. Jimenez, 765 F.3d at 1165 (citation omitted). 9 Perez alleges that putative class members were not paid for off-the-clock work because of 10 Leprino’s uniform policies and practices regarding pre- and post-shift activities. He presents his 11 case as follows: Under the CBA, Leprino compensates employees for hours worked as calculated 12 by their shift times plus fourteen minutes for donning and doffing. Doc. No. 48-2 at 11–12. 13 Leprino requires employees to perform certain activities before and after their shifts, including 14 donning and doffing uniforms and protective equipment; clocking in and clocking out; sanitizing 15 the person and equipment in the “red line room”; and walking to pre-shift meetings and from the 16 production floor. Employees spend more than fourteen minutes performing all of these pre- and 17 post-shift activities. Leprino knew or should have known this was happening, but did not 18 compensate employees for the additional time spent working. Perez contends that commonality is 19 satisfied because putative class members are similarly situated with respect to these policies and 20 practices. 21 The Court has previously recognized that the pre- and post-shift activities in Perez’s 22 allegations are appropriately classified as “hours worked” under California law. Perez has since 23 produced ample evidence regarding those activities. With this evidence, Perez constructs a 24 compelling theory based on three specific points of reference: First, putative class members spend 25 several minutes donning their uniforms and equipment before clocking in. Douma Decl. ¶ 11; 26 Douthat Dep. at 43; Haro Decl. ¶ 9; Hernandez Dep. at 101–02; Jimenez Dep. at 95; Jung Decl. 27 ¶ 6; Laurel Decl. ¶ 11; Laurel Dep. at 48; Mattos Decl. ¶ 11; Mclean Decl. ¶ 12; Nicks Dep. at 74; 28 Perez Dep. at 152; Threadgill Decl. ¶ 10; Yaeger Decl. ¶ 11. Second, putative class members then 7 Case 1:17-cv-00686-AWI-BAM Document 74 Filed 01/06/21 Page 8 of 30 1 clock in seven minutes before their shifts actually start. Douthat Dep. at 57, 78; Haro Decl. ¶ 9; 2 Hernandez Dep. at 101–02; Jimenez Dep. at 94; Nicks Dep. at 248; Oliveira Dep. at 22, 141; Perez 3 Dep. at 159; Threadgill Decl. ¶ 10; Yaeger Decl. ¶ 11. And third, putative class members spend 4 several minutes doffing their uniforms and equipment after clocking out. Agler Dep. at 45; 5 Douma Decl. ¶ 12; Hernandez Dep. at 109; Jung Decl. ¶ 6; Laurel Decl. ¶ 12; Mattos Decl. ¶ 12; 6 Mclean Decl. ¶ 12; Oliveira Dep. at 147, 153; Perez Dep. at 178, 183; Threadgill Decl. ¶ 11; 7 Yaeger Decl. ¶ 11. Put together, Perez’s theory comes to life: between these three stages, 8 employees spend more than fourteen minutes performing work before and after their shifts. One 9 witness spelled this theory out perfectly in his declaration: 10 I pick up my clean uniform and put it on, which takes me about five minutes, if that. I then wait to clock in no more than seven minutes before my scheduled start 11 time. At the end of the shift, I clock out and then take off my uniform, which takes 12 me about four to five minutes. 13 Yaeger Decl. ¶ 11. If this employee and the rest of the putative class spend ten minutes donning 14 and doffing and an additional seven minutes on the clock before their shifts actually began, they 15 perform three minutes of work beyond that for which compensation is received under the CBA. If 16 proved that Leprino stood idly by despite actual or constructive knowledge of this fact, the 17 putative class members could recover for underpayment of their time. 18 Based on the evidence presented, the Court finds that Perez has demonstrated that three 19 common questions will drive resolution of his off-the-clock claim: (1) whether Leprino had 20 uniform policies and practices that effectively required employees to perform pre- and post-shift 21 activities in excess of fourteen minutes; (2) whether Leprino knew or should have known that 22 employees were working off-the-clock without compensation; and (3) if so informed, whether 23 Leprino elected to do nothing in response. These common questions mirror the legal test for off- 24 the-clock claims under California law, and are precisely the kind of questions that Rule 23(a)(2) 25 requires. Jimenez, 765 F.3d at 1165−66. 26 Leprino’s arguments against commonality are unavailing. Leprino first contends that 27 evidence does not show that employees spend more than fourteen minutes performing pre- and 28 post-shift activities. Leprino particularly emphasizes evidence showing that some employees 8 Case 1:17-cv-00686-AWI-BAM Document 74 Filed 01/06/21 Page 9 of 30 1 spend less than fourteen minutes donning and doffing. This evidence notwithstanding, Leprino’s 2 narrow focus fails to grapple with Perez’s actual theory. The CBA provides for fourteen minutes 3 of additional compensation for donning and doffing. But Perez’s off-the-clock claim is premised 4 on employees spending more than fourteen minutes performing all of their pre- and post-shift 5 activities, not just donning and doffing. Thus, even if donning and doffing takes less than fourteen 6 minutes, employees may perform off-the-clock work if the rest of their required pre- and post-shift 7 activities push them over that threshold. The witness declaration quoted above shows exactly how 8 this could happen. 9 Leprino next argues that, based on passages in the certification motion, Perez seeks to 10 define as compensable all activities occurring after employees enter the Lemoore East parking lot 11 regardless of whether the employees were actually under employer control. Perez contends that 12 this misrepresents his actual claim, and that he discusses evidence regarding employees’ arrival 13 times merely to show when employees feel the need to come to work in order to perform their 14 essential pre-shift duties. As explained above, Perez has established commonality based on 15 evidence regarding pre- and post-shift activities that the parties do not dispute constitute hours 16 worked. Thus, at this time, the Court declines to further delve into disagreements on the margins 17 of what other pre- and post-shift activities may be compensable. 18 19 2. Meal and rest period claim 20 Under California law, an “employer shall not require an employee to work during a meal 21 or rest or recovery period mandated pursuant to an applicable statute, or applicable regulation, 22 standard, or order of the Industrial Welfare Commission, the Occupational Safety and Health 23 Standards Board, or the Division of Occupational Safety and Health.” Cal. Labor Code 24 § 226.7(b). If a legally compliant meal or rest period is not provided, “the employer shall pay the 25 employee one additional hour of pay at the employee’s regular rate of compensation for each 26 workday that the meal or rest . . . period is not provided.” Cal. Labor Code § 226.7(c). 27 Perez presents three theories of recovery in support of his claim for meal and rest period 28 violations. First, he contends that the meal and rest period policies set forth in the CBA are 9 Case 1:17-cv-00686-AWI-BAM Document 74 Filed 01/06/21 Page 10 of 30 1 facially unlawful. Second, he contends that Leprino’s policies and practices require employees to 2 remain “on call” or subject to employer control during their breaks. Third, he contends that 3 Leprino failed to provide legally compliant breaks because of its “red line room” policies and 4 practices. The Court will consider these theories in turn. 5 a. Facially unlawful theory 6 Perez argues that the CBA’s meal and rest period terms violate Wage Order 8’s provisions 7 on such matters. Where an employer’s policy violates the law on its face, classwide liability can 8 be established through common proof that the employer uniformly enforced the legally 9 noncompliant policy. See Millan v. Cascade Water Servs., Inc., 310 F.R.D. 593, 604 (E.D. Cal. 10 2015) (collecting cases that found the commonality requirement satisfied for claims based on an 11 applicable and uniformly applied policy); see also Brinker Rest. Corp. v. Superior Court, 53 Cal. 12 4th 1004, 1033 (2012) (“Claims alleging that a uniform policy consistently applied to a group of 13 employees is in violation of the wage and hour laws are of the sort routinely, and properly, found 14 suitable for class treatment.”). 15 i. Rest periods 16 With regard to rest periods, Wage Order 8 provides: 17 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 18 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. 19 However, a rest period need not be authorized for employees whose total daily 20 work time is less than three and one-half (3½) hours. Authorized rest period time shall be counted as hours worked for which there shall be no deduction from 21 wages. 22 Cal. Code Regs. tit. 8, § 11080(12)(A). 23 As for the CBA, Section 12, titled “Relief Periods,” provides: 24 The Employer agrees to provide adequate relief and rest periods of ten (10) minutes during the first half of the shift and ten (10) minutes during the second half of the 25 shift. The employee will be entitled to an additional ten (10) minute rest period 26 when they are working two (2) or more hours of overtime. 27 28 10 Case 1:17-cv-00686-AWI-BAM Document 74 Filed 01/06/21 Page 11 of 30 1 Doc. No. 48-2 at 18.6 2 Perez contends that this provision violates Wage Order 8 because it fails to state (1) when 3 rest periods should be taken, (2) that rest periods should be taken in the middle of the work period 4 “insofar as practicable,” and (3) that a rest period must be provided every “four hours or major 5 fraction thereof.” 6 Perez’s first and second contentions can be handled together: namely, other than the 7 language “insofar as practicable shall be in the middle of each work period,” Wage Order 8 does 8 not prescribe when rest periods are to be taken. Brinker, 53 Cal. 4th at 1031. Perez is correct in 9 noting that Section 12 does not mirror Work Order 8 on this front. But nothing suggests that 10 omission of this language violates the law. That is, it cannot be said that by virtue of this omission 11 Leprino has a uniform policy to not authorize or permit rest periods during the middle of each 12 work period. It simply means that, in so far as Section 12 is concerned, Leprino has no written 13 policy on the timing of rest periods. Although liability to the class could still be established if 14 evidence showed that Leprino uniformly enforces an unwritten policy or practice that allegedly 15 violates the law—for example, evidence showing that employees are regularly forced to take rest 16 periods at the end of work periods—Perez has not presented evidence of this kind.7 And with no 17 such showing, Perez has not demonstrated the existence of a common contention capable of 18 driving classwide resolution. See Ordonez v. Radio Shack, Inc., No. CV 10-7060-CAS (JCGx), 19 2013 WL 210223, at *7−8 (C.D. Cal. Jan. 17, 2013) (rejecting argument that a common question 20 6 For purposes of this motion, the parties have presented to the Court a copy of the CBA that was in effect at the time 21 this lawsuit was filed on April 13, 2017. The CBA states that it was to be in effect from January 1, 2014, through December 31, 2018. Doc. No. 48-2 at 5. While this time period is narrower than the time period the class definition 22 covers, the parties have not represented that material differences exist between applicable CBAs. Accordingly, for purposes of this motion, the Court will proceed with that understanding as well. 23 7 The witness statements that Perez relies upon for this theory show that breaks were sometimes delayed because certain work needed to be complete. Agler Dep. at 68–69 (“I have been told that you have to wait to take a break. We 24 have to get this done.”); Hernandez Dep. at 120 (explaining that breaks were taken when workload allowed); Jimenez Decl. ¶ 12 (“We are not permitted to take a Rest Break until we are finished cleaning at the beginning of our shift.”). 25 Far from establishing unlawfulness, however, this evidence fits into the flexibility provided by the “insofar as practicable” language of Wage Order 8. Brinker, 53 Cal. 4th at 1031 (“Employers are thus subject to a duty to make a 26 good faith effort to authorize and permit rest breaks in the middle of each work period, but may deviate from that preferred course where practical considerations render it infeasible.”). Likewise, contrary to Perez’s suggestion 27 otherwise, an employee can take a rest period and a meal period back-to-back and still fully comply with Wage Order 8’s requirements. See Jimenez Decl. ¶ 12 (“[T]hough my shift starts at 6:30 a.m., my first rest break is often not until 28 9:30 and I take it in conjunction with my 30 minute meal break.”). 11 Case 1:17-cv-00686-AWI-BAM Document 74 Filed 01/06/21 Page 12 of 30 1 capable of resolution through a common answer is available where employer’s policy was facially 2 legal and evidence did not otherwise show existence of uniform policy); see also Brinker, 53 Cal. 3 4th at 1051 (“[F]or this claim neither a common policy nor a common method of proof is 4 apparent. . . . The only formal [employer] off-the-clock policy submitted disavows such work, 5 consistent with state law. Nor has [the class representative] presented substantial evidence of a 6 systematic company policy to pressure or require employees to work off-the-clock . . . .”). 7 Nor has he carried his burden as to his contention that Section 12 is facially unlawful 8 because it does not give effect to Wage Order 8’s “four hours or major fraction thereof” language. 9 In Brinker, the California Supreme Court interpreted this language to mean that “[e]mployees are 10 entitled to 10 minutes rest for shifts from three and one-half to six hours in length, 20 minutes for 11 shifts of more than six hours up to 10 hours, 30 minutes for shifts of more than 10 hours up to 14 12 hours, and so on.” 53 Cal. 4th at 1029. The Brinker court affirmed certification was proper as to a 13 uniform policy that authorized rest periods for each four hours of work. 53 Cal. 4th at 1033−34. 14 The court explained that “[c]lasswide liability could be established through common proof if [the 15 class representative] were able to demonstrate that, for example, [the employer] under this uniform 16 policy refused to authorize and permit a second rest break for employees working shifts longer 17 than six, but shorter than eight, hours.” Id. at 1033. 18 Here, in contrast, Perez has not provided evidence of a uniform policy that conflicts with 19 the law. The CBA dictates that employees are entitled to two rest periods for every shift, and an 20 additional rest period if two hours of overtime are worked. The CBA elsewhere describes the 21 standard shift as eight hours of work completed within a nine-hour workday, and contemplates 22 alternative schedules for ten-hour shifts. Across the board, this allotment of rest periods per shift 23 time is consistent with the law as interpreted in Brinker. Once more, Perez could have presented 24 evidence showing that Leprino’s unwritten policies and practices require employees to work shifts 25 without the appropriate amount of rest periods—for instance, evidence showing that employees 26 working ten-hour shifts do not receive a third rest period when working more than ten hours but 27 less than two hours of overtime. But the parties have not presented evidence of this kind, nor for 28 that matter is there evidence in the record showing that rest periods were regularly and uniformly 12 Case 1:17-cv-00686-AWI-BAM Document 74 Filed 01/06/21 Page 13 of 30 1 deprived in any fashion. While Perez is not required to conclusively prove his case at this stage, 2 he must offer some proof that the allegedly unlawful policy upon which he bases his claim does in 3 fact exist. See Rojas-Cifuentes v. ACX Pac. Nw. Inc., No. 2:14-cv-00697-JAM-CKD, 2018 WL 4 2264264, at *7−8 (E.D. Cal. May 17, 2018) (rejecting commonality argument where employer’s 5 written policy was not facially unlawful and no further showing of common policy or practice); 6 Ordonez, 2013 WL 210223, at *7−8. Without evidence of a uniform policy or practice, Perez has 7 not demonstrated the existence of common issues capable of resolution on a classwide basis. And 8 without commonality, the Court will not certify the class claim as to this specific theory of 9 liability. 10 ii. Meal periods 11 Perez contends that the CBA provision regarding second meal periods is facially unlawful. 12 Relevant here, Wage Order 8 provides: 13 An employer may not employ an employee for a work period of more than ten (10) hours per day without providing the employee with a second meal period of not 14 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 15 employee only if the first meal period was not waived. 16 Cal. Code Regs. tit. 8, § 11080(11)(B). 17 Section 22(D) of the CBA provides: 18 No employees of Leprino Foods, Lemoore East plant work paid lunches unless job 19 bids so state, and/or mutual agreement between the Company, the Union and the affected employee. The Company and the Union agree that all employees are 20 provided with and are expected to take a 30-minute off-duty meal period for every 5 hours worked. Employees in the following positions have historically chosen to 21 work through meal breaks: Processing Sanitation, Cheese Sanitation, Forepersons, Whey Department and 3rd Shift Warehouse. If these employees choose to work 22 through their meal periods, they will be paid for the time worked, but will not 23 receive penalty pay. At no time will any employee be required to work through a meal period. No employee is permitted to work through his or her second meal 24 period if he or she works more than 10 hours and did not take a first meal period. Employees in other positions that have not historically chosen to work through 25 meal breaks will not generally be permitted to choose to work through a meal period. 26 27 Doc. No. 48-2 at 29. 28 Perez contends that this uniform policy is unlawful because it fails to inform (1) when a 13 Case 1:17-cv-00686-AWI-BAM Document 74 Filed 01/06/21 Page 14 of 30 1 second meal period must occur, (2) that a second meal period can be waived with mutual consent 2 if the first meal period was not waived and the employee works more than ten hours but less than 3 twelve, and (3) that a second meal period cannot be waived if an employee works more than 4 twelve hours. 5 This policy is not facially inconsistent with the law in the ways Perez suggests. Section 6 22(D) informs employees that they are provided with and expected to take a meal period for every 7 five hours worked. In other words, employees working ten hours are provided with and expected 8 to take two meal periods. This complies with Wage Order 8. See Brinker, 53 Cal. 4th at 1042 9 (explaining that a second meal period is legally required “after no more than 10 hours of work in a 10 day, i.e., no later than what would be the start of the 11th hour of work, absent waiver”). The 11 policy also informs employees that a second meal period cannot be waived if the employee did not 12 take his or her first meal period. This too complies with Wage Order 8. Although the policy does 13 not inform employees that they cannot waive a second meal period if working more than twelve 14 hours, this omission alone is neither inconsistent with Wage Order 8 nor evidence of an unlawful 15 policy. Moreover, Perez has not presented evidence demonstrating that Leprino enforces an 16 unwritten policy or practice that violates the law in this fashion. Perez presented statistical 17 analysis evidence regarding 1,400 shifts longer than ten hours (or 2,124 shifts based on clock-in 18 and clock-out times); however, this evidence does not identify how many of these shifts, if any, 19 were both longer than twelve hours and missing a second meal period. See generally Dann Decl. 20 One witness declared that “[t]here have been many days that I have worked over 10 and 12 hours 21 without having been provided with a second thirty-minute meal break.” Haro Decl. ¶ 13. But this 22 statement alone is not enough to carry the burden in showing a facility-wide policy or practice. 23 Perez also contends that the CBA is facially invalid as to on-duty meal periods. Wage 24 Order 8 provides: 25 Unless the employee is relieved of all duty during a 30 minute meal period, the 26 meal period shall be considered an “on duty” meal period and counted as time worked. An “on duty” meal period shall be permitted only when the nature of the 27 work prevents an employee from being relieved of all duty and when by written agreement between the parties an on-the-job paid meal period is agreed to. The 28 written agreement shall state that the employee may, in writing, revoke the 14 Case 1:17-cv-00686-AWI-BAM Document 74 Filed 01/06/21 Page 15 of 30 agreement at any time. 1 2 Cal. Code Regs. tit. 8, § 11080(11)(C). 3 Section 22(C) of the CBA provides: 4 Where the nature of the work prevents an employee from taking an off-duty meal period, the Employer may schedule a shift of eight (8) continuous hours by written 5 mutual agreement with the Union and the affected employee. In that situation, the meal period shall be considered an on-duty meal period which shall be paid time. 6 7 Doc. No. 48-2 at 29. 8 Perez argues that this provision is unlawful because it fails to inform employees that on- 9 duty meal period agreements must state that they are subject to employee revocation at any time. 10 Once more, this provision is not unlawful just because it does not mirror the applicable law 11 in its entirety. Here, however, Perez’s argument also stands on evidence beyond an underinclusive 12 CBA provision. Namely, Leprino acknowledges both that some employees work shifts with an 13 on-duty meal period and that it has not entered into any written agreements concerning on-duty 14 meal periods, much less written agreements “stat[ing] that the employee may, in writing, revoke 15 the agreement at any time.” Moreover, Leprino’s 30(b)(6) witness declared that written 16 agreements are not used because Leprino does not have positions where the nature of the work 17 prevents employees from taking a thirty-minute, off-duty meal period. Nicks Decl. at ¶ 13; Nicks 18 Dep. at 188–90, 194, 215. This evidence appears to contradict Wage Order 8 multiple times over. 19 Leprino’s response that the CBA elsewhere indicates that every on-duty meal period is a voluntary 20 choice of the employee—i.e., a waiver defense of sorts—does not change that fact. Instead, 21 certification is warranted on a common issue appropriate for class resolution as to whether 22 Leprino’s uniform policy violated the law. See Naranjo v. Spectrum Sec. Servs., Inc., 40 Cal. 23 App. 444, 458–60 (2019), review granted on other issues, 455 P.3d 704 (Jan. 2, 2020) (“[I]f all the 24 requirements for a compliant on-duty meal period are not met, e.g., there is no signed agreement 25 with a right-to-revoke clause, the employer owes employees their regular wage for working during 26 the meal break, plus one hour of premium pay for every workday the meal break policy was 27 noncompliant, also at the employees’ regular rate of compensation.”). 28 As one final matter, Perez recognizes that a subclass may be needed for purposes of this 15 Case 1:17-cv-00686-AWI-BAM Document 74 Filed 01/06/21 Page 16 of 30 1 specific theory of liability because not every putative class member was affected by Leprino’s on- 2 duty meal period policies and practices. The Court agrees, and will use the following subclass for 3 purposes of this claim and theory of liability: 4 All non-exempt hourly workers who are currently employed, or formerly have been employed, as non-exempt hourly employees at Leprino’s Lemoore East plant in 5 Lemoore, California, at any time within four years prior to the filing of the original 6 complaint until January 6, 2021, and who worked at least one shift that included an “on-duty meal period,” otherwise described as a shift of continuous work with a 7 meal period taken on the clock or a “straight 8” shift. 8 b. On-call theory 9 Perez’s second theory of liability for the meal and rest period claim is commonly known as 10 an “on call” theory. Under California law, “employees must not only be relieved of work duties 11 [during breaks], but also be freed from employer control over how they spend their time.” 12 Augustus v. ABM Sec. Servs., Inc., 2 Cal. 5th 257, 270 (2016); see also Brinker, 53 Cal. 4th at 13 1038–39 (stating that the “fundamental employer obligations associated with a meal break” are “to 14 relieve the employee of all duty and relinquish any employer control over the employee and how 15 he or she spends the time”). In Augustus, the California Supreme Court explained that if 16 employees are effectively “on call” during meal or rest periods because conditions require them to 17 be ready and capable of being summoned to action, then the breaks provided are not control-free 18 and, consequently, not legally compliant. 2 Cal. 5th at 270. 19 There is no dispute that Leprino has written policies of providing meal and rest periods. 20 Perez contends that, these policies notwithstanding, Leprino enforces unwritten policies and 21 practices that effectively require putative class members to remain on-call during their breaks. See 22 Brinker, 53 Cal. 4th at 1040 (“[A]n employer may not undermine a formal policy of providing 23 meal breaks by pressuring employees to perform their duties in ways that omit breaks.”). Perez 24 makes his case as follows: (1) Leprino’s polices instruct putative class members to always answer 25 their supervisor’s questions and follow their instructions, with no exceptions made for breaks; (2) 26 some employees are assigned radios that are carried at all times, including during breaks; (3) 27 Leprino installed a telephone and intercom system in the breakrooms so that employees can be 28 reached while on break; (4) when breaks are interrupted, Leprino does not pay premium pay or 16 Case 1:17-cv-00686-AWI-BAM Document 74 Filed 01/06/21 Page 17 of 30 1 allow employees to restart their breaks; (5) the testimony of the putative class members confirm 2 that these policies and facts have created a culture of on-call breaks; (6) putative class members 3 confirm they are required to answer their radios, listen for their names on the intercoms, respond 4 to calls in the breakroom, and respond to supervisors during their breaks; and (7) putative class 5 members are disciplined, suspended, or even terminated if they fail to respond to questions or 6 return to work when asked. Put together, Perez asserts that this theory of liability naturally poses a 7 common question that is central to his claim: namely, in light of Leprino’s uniform policies and 8 practices, are the class members actually on call during breaks? Said differently, are the class 9 members not truly freed from Leprino’s control during their breaks? 10 The Court finds that Perez has offered enough proof in support of his theory. Across 11 numerous declarations and depositions from putative class members, Perez has presented evidence 12 suggesting that meal and rest periods are interrupted for work-related reasons. Agler Decl. ¶ 7; D. 13 Armor Decl. ¶¶ 7, 10; J. Armor Decl. ¶¶ 8–10; Carrier Decl. ¶ 6; Dillard Decl. ¶ 8; George Dep. at 14 22; Haro Decl. ¶¶ 4, 6, 7, 10; Haro Dep. at 72, 91; Jimenez Decl. ¶¶ 5–8; Laurel Decl. ¶¶ 7–10; 15 Laurel Dep. at 70; Mclean Decl. ¶ 8; Nakken Dep. at 119; Oliveira Decl. ¶¶ 9, 11; Oliveira Dep. at 16 108−09; Threadgill Decl. ¶¶ 4–6; Threadgill Dep. at 81–82. Numerous witnesses also professed to 17 having believed that they are expected to respond to work-related communications during breaks. 18 Agler Dep. at 33–34 (“[I]t’s been the practice since I have been there that we always have [the 19 radio] on, have it on us, and answer it when called. Just common practice.”); D. Armor Decl. ¶ 12 20 (“We have been trained that if we are asked a work-related question at any time during a work 21 day, including meal and rest breaks, we must answer the question. I am responsible for my job at 22 all times during my shift.”); J. Armor Decl. ¶ 6 (“[I]f I was asked a work related question during a 23 meal or rest break, I was expected to answer the question[.]”); Haro Dep. at 65−66 (“It’s expected 24 that you follow orders from your supervisor.”); Hernandez Dep. at 132 (understanding that 25 employees had to listen to supervisors’ instructions and failures to obey would be considered 26 insubordination); Jimenez Dep. at 84, 86 (“[E]verybody just did what they were supposed to do, 27 answer the phone calls, answer the pages.”); Laurel Decl. ¶ 4 (“I am required to carry this radio 28 with me at all times including during meal and rest breaks and to answer it during meal and rest 17 Case 1:17-cv-00686-AWI-BAM Document 74 Filed 01/06/21 Page 18 of 30 1 breaks if called upon with a work related question[.]”); Laurel Dep. at 86 (“It’s common practice 2 that we were on call.”); Threadgill Decl. ¶ 7 (“I have considered that I was required to answer 3 work related questions during my meal and rest breaks because I was responsible for production at 4 my workstation and I did not want to be accused of insubordination.”); Threadgill Dep. at 81−82, 5 105–06 (“Because we have problems. You have to get back and help bulk off. It’s our job.”).8 6 In light of this evidence, there exists a common question as to whether Leprino’s uniform 7 policies and practices compel employees to remain on-call during their meal and rest periods. 8 This common question is central Perez’s claim and one that can be answered with common proof 9 regarding common injury. If at trial the jury answers yes, then Leprino is liable to the class for 10 meal and rest period violations; if the answer is no, then Leprino is not liable. This satisfies the 11 commonality requirement under Rule 23(a)(2). See Wright v. Renzenberger, Inc., No. CV 13- 12 6642 FMO (AGRx), 2017 WL 9831398, at *7 (C.D. Cal. Sept. 30, 2017) (finding common 13 question as to whether drivers were on-call during rest periods based on uniform policy); Ayala v. 14 U.S. Xpress Enters., Inc., No. EDCV 16-137-GW(KKx), 2017 WL 3328087, at *10 (C.D. Cal. 15 July 27, 2017) (“[L]liability will turn on whether ‘securing the load’ and responding to alerts 16 messages rises to the level of employee control that would turn any break periods provided into 17 impermissible on call breaks, that would consequently require compensation.”). 18 Leprino’s arguments against commonality are not persuasive. A core theme of these 19 arguments is Leprino’s failure to engage Perez’s actual theory. For instance, Leprino argues that 20 the evidence does not show it enforces a uniform radio policy because only a fraction of 21 employees carry radios. And it argues that evidence regarding the breakroom phones and 22 intercom system is not telling because not every employee recalled being contacted through these 23 channels. But focusing on separate methods of communication in isolation misconstrues the 24 integrated on-call theory that Perez is making. In declarations and depositions, putative class 25 members consistently acknowledged that breaks—their own and those of their coworkers—are 26 8 On a related matter, the parties dispute the value of evidence regarding a September 2013 incident where Perez was 27 disciplined for disobeying a supervisor’s instruction to stay at his work station to complete a specific task. Given the evidence above demonstrates both that this specific evidence is not some sort of tipping point and that Perez has 28 carried his commonality burden for purposes of this claim, the Court need not conclusively resolve this dispute here. 18 Case 1:17-cv-00686-AWI-BAM Document 74 Filed 01/06/21 Page 19 of 30 1 interrupted through various means. This includes radios, which putative class members averred 2 are used to contact employees during breaks about work-related matters, including efforts to find 3 other employees. J. Armor Decl. ¶¶ 4, 7; George Dep. at 22; Haro Decl. ¶ 7; Haro Dep. at 61−62; 4 Hernandez Dep. at 131; Laurel Decl. ¶ 4; Laurel Dep. at 70; Oliveira Dep. at 104; Yaeger Decl. 5 ¶ 6. This also includes intercom communications. Agler Decl. ¶ 7; Agler Dep. at 83; J. Armor 6 Decl. ¶ 8; Haro Decl. ¶¶ 4, 6; Haro Dep. at 72; Hernandez Dep. at 131; Jimenez Decl. ¶ 6; Laurel 7 Decl. ¶ 7; Threadgill Decl. ¶ 5; Threadgill Dep. at 81. And interruptions caused by the breakroom 8 phones or in-person messages. Agler Decl. ¶ 7; D. Armor Decl. ¶¶ 7, 10; J. Armor Decl. ¶¶ 8, 9; 9 Dillard Decl. ¶ 8; Haro Decl. ¶¶ 4, 6; Haro Dep. at 57–58, 62−63, 65−66; Hernandez Dep. at 132; 10 Jimenez Decl. ¶¶ 5, 8; Laurel Decl. ¶ 8; Perez Dep. at 190−91, 252−54; Threadgill Decl. ¶¶ 5–6; 11 Threadgill Dep. at 86, 87; Yaeger Decl. ¶ 6. As one witness neatly described the matter: 12 If there’s no radio in their area, they use the intercom. Whatever is closer. If they can get to an area where there’s a radio, they’ll use the radio. If they can get to an 13 area where a phone is there, they’ll use the phone. That’s assuming they don’t find 14 somebody else on the floor that can help them. You know? 15 Nakken Dep. at 119. 16 Collectively, this evidence stands up to Leprino’s piecemeal challenges. Perez 17 acknowledges that not every employee was subject to every kind of interruption. But his 18 integrated theory does not depend on that being the case. Rather, he seeks recovery on the basis 19 that combining all these individual practices creates a uniform policy that itself violates the law as 20 to all putative class members. In that sense, even if an individual practice is not directly 21 applicable to all employees—such as those who did not carry radios—evidence of that practice 22 may be reasonably considered by the factfinder as one part of an environment where employees 23 are effectively on-call at all times. 24 Perez’s evidence also stands up against Leprino’s emphasis of other evidence, including 25 minutes from a 2015 meeting between Leprino and the Union, which arose from some employees’ 26 belief that they were required to keep radios on during meal breaks and resulted in Leprino 27 providing penalty pay for interrupted breaks. Leprino contends that this shows the special effort it 28 made to inform employees that they are not required to monitor radios during breaks. While 19 Case 1:17-cv-00686-AWI-BAM Document 74 Filed 01/06/21 Page 20 of 30 1 evidence of this kind could certainly contribute to a defense against this claim (on both the merits 2 and in damages calculations), it does not erase from the record the other evidence that has been 3 presented. This is also true with regard to Leprino’s argument that a uniform policy cannot exist 4 because employees are free to take breaks outside or away from the facility. Substantial evidence 5 before the Court shows that breaks are interrupted regardless of whether employees have this 6 freedom. 7 c. Red line room 8 For his third theory of liability, Perez contends that employees do not receive full meal and 9 rest periods because of Leprino’s requirement that they complete sanitizing procedures in the “red 10 line room.” Perez argues that employees have not been compensated for these meal and rest 11 period violations, and that there exists a common question as to whether Leprino’s uniform 12 policies and practices deprive employees of the meal and rest periods to which they are entitled. 13 There is no dispute that according to Leprino’s policies employees are to pass through the 14 red line room before entering and exiting to the production floor, Nicks Dep. at 76, 266–68; and 15 that therein employees must spend a few minutes completing boot-scrubbing and hand-washing 16 procedures. Nicks Dep. 81−83. Leprino argues, however, that Perez has presented no evidence 17 that meal and rest periods are actually shortened (to an unlawful level) because of these 18 requirements, much less that any discrepancies occur because of some facility-wide policy or 19 practice. Instead, Leprino continues, employees testified that they complete these tasks on the 20 clock and take break times long enough to compensate for the required procedures. 21 Perez has not identified specific evidence on this theory, nor has he responded to Leprino’s 22 particular points of opposition. With his motion, Perez presented statistical analysis evidence 23 showing that in a sample of over 20,000 shifts approximately 35% featured a meal period less than 24 thirty minutes in duration. Dann Decl. ¶ 12. While it could be argued that this figure is 25 attributable (at least in part) to red line room tasks cutting into employees’ breaks, Perez has not 26 made this case. Instead, he merely cites general evidence regarding the red line room and how 27 long it takes an employee to proceed through the required sanitizing procedures—no causal link is 28 shown. In fact, as Leprino points out, relevant evidence suggests that employees take meal 20 Case 1:17-cv-00686-AWI-BAM Document 74 Filed 01/06/21 Page 21 of 30 1 periods longer than thirty minutes and rest periods longer than ten minutes, and sometimes 2 expressly noted this is done to compensate for time spent walking to and from breakrooms and 3 passing through the red line room. E.g., Agler Dep. at 89–90 (fifteen-minute rest periods); Dillard 4 Decl. ¶ 5 (thirty-minute rest periods and 45-minute lunch periods); Laurel Dep. at 53–54, 64–65 5 (15-minute rest periods, exclusive of walking and cleaning time); Nakken Decl. ¶ 4 (rest periods 6 of at least twenty-five to thirty minutes, exclusive of walking time); Nicks Decl. ¶ 14 (explaining 7 employees typically take twenty minutes or more for rest periods and forty minutes or more for 8 meal periods); Peeler Decl. ¶ 8 (rest periods of fifteen to twenty minutes); Perez Dep. at 78 9 (fifteen-minute rest periods); Post Decl. ¶¶ 6, 7 (rest periods of fifteen to twenty minutes and a 10 thirty-minute off-the-clock meal period); Threadgill Dep. at 68–69, 72–73 (forty-minute meal 11 periods and twenty-minute rest periods); Van Noort Decl. ¶ 4 (fifteen-minute rest periods and a 12 thirty-minute off-the-clock meal periods); Yaeger Decl. ¶ 7 (rest periods of ten to fifteen minutes, 13 exclusive of walking and cleaning time).9 14 In sum, Perez has not done enough to affirmatively demonstrate a common question exists 15 as to whether Leprino’s policies and practices related to the red line room affect employees’ meal 16 and rest periods. See Rojas-Cifuentes, 2018 WL 2264264, at *8 (finding no commonality for a 17 meal period claim based on a walking-time and donning/doffing theory of liability without 18 evidence showing a uniform policy or practice). 19 20 3. Derivative claims 21 Perez asserts that the derivative class claims raise the same common questions that 22 undergird the other two class claims: that is, whether Leprino’s uniform policies and practices 23 effectively require class members to work off the clock and leave class members without legally 24 9 Evidence that could have provided traction for this theory is elsewhere directly contradicted by the same witnesses. For instance, one witness declared that “[i]t takes about 2 minutes to get to the break room during my 15 minute rest 25 break and about 3–4 minutes coming back because of work activities that I have to perform in the red line room.” Jimenez Decl. ¶ 13. But during his deposition, the witness stated he usually took “[a]bout 20 minutes” away from his 26 work area for rest periods. Jimenez Dep. at 31–32. Another witness declared “[t]he walk from the production floor to the break room is about 2 minutes, and about 2–3 minutes coming back. I don’t think I am able to take ten minutes 27 free of work in the break room during my rest breaks.” Haro Decl. ¶ 14. Yet, the witness also described her rest periods as “15 minute rest breaks” in her declaration. Haro Decl. ¶ 8. And at her deposition, the witness testified to 28 taking rest periods lasting “15, 17 minutes.” Haro Dep. at 49, 53 (“15-minute break”). 21 Case 1:17-cv-00686-AWI-BAM Document 74 Filed 01/06/21 Page 22 of 30 1 noncompliant meal and rest periods. The Court agrees, and Leprino does not dispute the issue. 2 Moreover, to the extent unique issues arise with the derivative claims, these too will rest primarily 3 on questions dependent on common proof. See Negrete v. ConAgra Foods, Inc., No. CV 16-0631 4 FMO (AJWx), 2019 WL 1960276, at *12 (C.D. Cal. Mar. 29, 2019) (“These claims flow from the 5 causes of action which this court is certifying. They present common questions, such as whether 6 defendants underpaid quitting or terminated workers, whether defendants provided accurate wage 7 statements to their employees, and whether defendants violated Cal. Bus. & Prof. Code §§ 17200, 8 et seq., by failing to follow California’s wage and hour laws.”); Boyd v. Bank of Am. Corp., 300 9 F.R.D. 431, 442 (C.D. Cal. 2014) (discussing derivative claims including unfair competition law 10 and separation wages violations). 11 Finally, while commonality is satisfied, a subclass is needed for the separation wages class 12 claim given that the relevant Labor Code provisions (§§ 201–203) will not apply to putative class 13 members who have been continuously employed by Leprino throughout the proposed class period. 14 Thus, the Court will exercise its discretion to define a separation wages subclass as follows: 15 All persons who have been discharged from or quit employment as non-exempt hourly employees at Leprino’s Lemoore East plant in Lemoore, California, at any 16 time within four years prior to the filing of the original complaint until January 6, 2021. 17 18 D. Typicality 19 Pursuant to Rule 23(a)(3), a class action may be maintained only if the “claims or defenses 20 of the representative parties are typical of the claims or defenses of the class.” Fed. R. Civ. P. 21 23(a)(3). “[T]ypicality determines whether a sufficient relationship exists between the injury to 22 the named plaintiff and the conduct affecting the class so that the court may properly attribute a 23 collective nature to the challenged conduct.” 1 Newberg on Class Actions § 3:29. The test for 24 typicality is (1) “whether other members have the same or similar injury,” (2) “whether the action 25 is based on conduct which is not unique to the named plaintiffs,” and (3) “whether other class 26 members have been injured by the same conduct.” Wolin v. Jaguar Land Rover N. Am., LLC, 27 617 F.3d 1168, 1175 (9th Cir. 2010) (citations omitted). 28 Leprino largely does not contest Perez’s assertion that, as a class representative, his claims 22 Case 1:17-cv-00686-AWI-BAM Document 74 Filed 01/06/21 Page 23 of 30 1 are typical of those of the class. As a lone reference to typicality, Leprino describes Perez’s 2 testimony that it took him between twelve and eighteen minutes to don and doff as atypical and 3 not illustrative of a common practice amongst the class. Evidence suggests this not to be the case. 4 E.g., Jung Decl. ¶ 6 (donning takes about five to six minutes, doffing takes five minutes or less); 5 Mclean Decl. ¶ 12 (not longer than fourteen minutes to don and doff). But even more importantly, 6 in focusing on Perez’s specific testimony for one part of a single claim, Leprino misses the 7 broader scope of the typicality inquiry. Namely, in presenting his case, Perez has alleged and 8 produced evidence showing that he and the other putative class members have suffered the same 9 injuries—for example, Perez alleges that the class as a whole has not received all earned wages for 10 work performed for Leprino’s benefit. Perez has not made claims based on conduct that is unique 11 to him, but instead raises claims based on Leprino’s policies and practices as they apply to the 12 class. He also contends that the class, himself included, have been injured by the same conduct of 13 Leprino—for instance, the entire class was injured because Leprino failed to provide legally 14 compliant meal and rest periods. In sum, the typicality requirement of Rule 23(a)(3) is satisfied. 15 16 E. Adequacy of representation 17 Pursuant to Rule 23(a)(4), a class action is maintainable only if the “the representative 18 parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). The 19 term “parties” refers to both the class representative and class counsel. In re Conseco Life Ins. Co. 20 LifeTrend Ins. Sales & Mktg. Litig., 270 F.R.D. 521, 531 (N.D. Cal. 2010). The Ninth Circuit 21 tests the adequacy as follows: “(1) do the named plaintiffs and their counsel have any conflicts of 22 interest with other class members and (2) will the named plaintiffs and their counsel prosecute the 23 action vigorously on behalf of the class?” Ellis v. Costco Wholesale Corp., 657 F.3d 970, 985 24 (9th Cir. 2011) (quoted source omitted). “Adequate representation depends on, among other 25 factors, an absence of antagonism between representatives and absentees, and a sharing of interest 26 between representatives and absentees.” Id. 27 The Court finds that Perez is an adequate class representative, a matter that Leprino does 28 not contest. First, Perez is not conflicted. He declares his primary interest is to prove Leprino 23 Case 1:17-cv-00686-AWI-BAM Document 74 Filed 01/06/21 Page 24 of 30 1 violated California’s wage-and-hour laws in ways affecting the members of the proposed class. 2 Perez Decl. ¶¶ 6, 13. In so doing, Perez seeks recovery from Leprino itself, not any supervisors or 3 other employees, and intends to continue in his representative capacity until there is a resolution in 4 this case that is in the best interest of the proposed class. Id., ¶ 8. Second, Perez is sufficiently 5 qualified to serve as class representative. He has sought out and met with counsel to discuss the 6 facts of the case, answer any questions about his experience working for Leprino, and assist in 7 reviewing documents and responding to Leprino’s production requests. Id., ¶¶ 4, 7, 9. He has also 8 sat for a deposition. Id., ¶ 5. Perez recognizes his limitations with respect to his independent 9 knowledge of all the facts and law particular to his claims, but he also understands the essence of 10 this lawsuit. Id., ¶¶ 4, 8, 10−11. 11 Leprino also does not challenge the adequacy of proposed class counsel, R. Rex Parris and 12 the Parris Law Firm. Mr. Parris declares that he and his law firm have significant experience 13 litigating wage-and-hour claims and numerous class action lawsuits. Parris Decl. ¶¶ 2−6. Having 14 considered the factors under Rule 23(g), the Court finds that proposed class counsel is adequate. 15 Counsel (1) have sufficiently identified and investigated potential claims in this lawsuit; (2) have 16 sufficient experience litigating class actions and wage-and-hour-related claims; (3) appear to have 17 sufficient knowledge of the applicable wage-and-hour laws; and (4) appear to be willing and able 18 to commit sufficient resources to representing the proposed class. Fed. R. Civ. P. 23(g)(1)(A). 19 20 F. Predominance 21 Rule 23(b)(3) requires a showing that “questions of law or fact common to class members 22 predominate over any questions affecting only individual members.” Fed. R. Civ. P. 23(b)(3). 23 This requirement “tests whether proposed classes are sufficiently cohesive to warrant adjudication 24 by representation.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623 (1997). The 25 predominance inquiry logically involves two steps: “a court must first characterize the issues in 26 the case as common or individual and then weigh which predominate.” 2 Newberg on Class 27 Actions § 4:50. An individual issue is one where the “members of a proposed class will need to 28 present evidence that varies from member to member.” Tyson Foods, Inc. v. Bouaphakeo, 136 S. 24 Case 1:17-cv-00686-AWI-BAM Document 74 Filed 01/06/21 Page 25 of 30 1 Ct. 1036, 1045 (2016) (citing 2 Newberg on Class Actions § 4:50). Whereas a common issue is 2 one where “the same evidence will suffice for each member to make a prima facie showing [or] 3 the issue is susceptible to generalized, class-wide proof.” Id. 4 In general, common issues will not predominate if “‘a great deal of individualized proof’ 5 would need to be introduced or ‘a number of individualized legal points’ would need to be 6 established after common questions were resolved,” nor would they predominate if the resolution 7 of an “‘overarching common issue breaks down into an unmanageable variety of individual legal 8 and factual issues.’” 2 Newberg on Class Actions § 4:50 (quoting Klay v. Humana, Inc., 382 F.3d 9 1241, 1255 (11th Cir. 2004), and Cooper v. S. Co., 390 F.3d 695, 722 (11th Cir. 2004)). On the 10 other hand, common questions likely will predominate if “individual factual determinations can be 11 accomplished using computer records, clerical assistance, and objective criteria—thus rendering 12 unnecessary an evidentiary hearing on each claim,” or if “adding more plaintiffs to the class would 13 minimally or not at all affect the amount of evidence to be introduced.” Id. (quoting Smilow v. 14 Sw. Bell Mobile Sys., Inc., 323 F.3d 32, 40 (1st Cir. 2003), and Klay, 382 F.3d at 1255). 15 16 1. Off-the-clock claim 17 As discussed above, Perez’s theory for his off-the-clock claim is that Leprino has uniform 18 policies that violate California law to the detriment of the putative class members. The key 19 questions for this claim are whether those uniform policies exist, and if so, whether they violate 20 applicable laws. With these common contentions, predominance is satisfied here. See Negrete, 21 2019 WL 1960276, at *4 (finding predominance for donning and doffing claims). 22 Against predominance, Leprino compares this case to others where an off-the-clock claim 23 was not certified because a uniform policy was not shown to exist. This effort falls flat. In that 24 situation, predominance is not met because, as one court put it, “[i]ndividualized issues regarding 25 which employees performed the relevant functions on or off the clock, and why they performed 26 those functions, predominate over common questions.” Troester v. Starbucks Corp., No. CV 12- 27 07677-CJC (PJWx), 2020 WL 553572, at *8 (C.D. Cal. Jan. 27, 2020). Notably, the Troester 28 case—which is one that Leprino particularly relies upon—contrasted the case at hand where no 25 Case 1:17-cv-00686-AWI-BAM Document 74 Filed 01/06/21 Page 26 of 30 1 uniform practice was shown to exist with other cases where off-the-clock claims were certified 2 because they “generally revolve[d] around company-wide policies.” Id. at *9. Perez’s claim is 3 squarely in the latter camp. He has presented evidence establishing that all putative class members 4 are required to complete the same pre- and post-shift activities. While this claim may entail 5 individualized damages calculations, this alone does not preclude certification if class members 6 are uniformly subject to a policy in a way that gives rise to consistent liability across the class. 7 See Wren v. RGIS Inventory Specialists, 256 F.R.D. 180, 206 (N.D. Cal. 2009) (determining that 8 predominance was “satisfied as to donning and waiting time, notwithstanding the individual issues 9 that will have to be addressed with respect to damages” where evidence suggests “a widespread 10 practice . . . of failing to compensate class members for this time”); see also Comcast, 569 U.S. at 11 35 (Ginsburg and Breyer, JJ., joined by Sotomayor and Kagan, JJ., dissenting) (stating in case 12 resolved on other grounds that “[r]ecognition that individual damages calculations do not preclude 13 class certification under Rule 23(b)(3) is well nigh universal” and that ordinarily “individual 14 damages calculations should not scuttle class certification under Rule 23(b)(3)”). 15 16 2. Meal and rest period claim 17 The common questions identified above for purposes of Perez’s meal and rest period claim 18 also predominate individual inquiries that may appear. Those common questions are based on 19 Perez’s allegations of Leprino’s uniform policies regarding on-duty meal periods and on-call 20 breaks. Whether these policies exist, are deficient, and result in classwide (or subclass-wide) 21 deprivation of legally compliant meal and rest periods are common issues that will not require 22 scores of individualized proof or legal points to be resolved. See Moore v. Ulta Salon, Cosmetics 23 & Fragrance, Inc., 311 F.R.D. 590, 611–12 (C.D. Cal. 2015) (“Courts routinely hold that proof of 24 a defendant’s uniform policy ‘is not plagued by individual inquiry, but is often sufficient to satisfy 25 the predominance requirement.’” (quoting Taylor v. Fedex Freight, Inc., No. 13-cv-1137-LJO- 26 BAM, 2015 WL 2358248 (E.D. Cal. May 15, 2015))). 27 Against predominance for the on-call theory of liability, Leprino argues that Perez’s meal 28 and rest period claim has no single, cohesive issue. Broadly, Leprino contends that Perez has not 26 Case 1:17-cv-00686-AWI-BAM Document 74 Filed 01/06/21 Page 27 of 30 1 shown any common method of proving why employees’ breaks are interrupted. It asserts that the 2 critical question of any meal or rest period discrepancy is asking why an employee was on the 3 clock during his or her break. Here, Leprino contends, the answer to this question will rest on 4 numerous and various individualized factors, as would inquiry into whether employees received 5 another break or compensatory pay for any interrupted break. 6 This argument fails, however, in no small part because it mishandles Perez’s theory. The 7 reason for each interruption to employees’ many breaks is not the focus of Perez’s claim. Instead, 8 the focus is on whether Leprino’s enforces policies and practices that effectively place all putative 9 class members on call during their breaks. If the factfinder determines that to be so, then Leprino 10 is liable across the board. Said differently, if Leprino uniformly enforces on-call policies and 11 practices, there are no individualized inquiries for liability because liability will be established for 12 the entire class. Moreover, while damages calculations stemming from classwide liability could 13 require individualized inquiries,10 this alone will not defeat certification. See Leyva v. Medline 14 Indus. Inc., 716 F.3d 510, 513 (9th Cir. 2013) (quoting Yokoyama v. Midland Nat’l Life Ins. Co., 15 594 F.3d 1087, 1094 (9th Cir.2010)). Wage-and-hour class actions, in particular, often produce 16 individualized damages determinations. Id. at 513−14 (citing Brinker, 53 Cal. 4th at 1054 17 (Werdegar, J., concurring)); see also Wal-Mart Stores, 564 U.S. at 362 (“[W]e think it clear that 18 individualized monetary claims belong in Rule 23(b)(3).”). 19 20 3. Derivative claims 21 Leprino does not argue that the derivative claims fail the predominance test beyond 22 disagreeing with the certifiability of the underlying claims. As discussed above, Perez’s off-the- 23 clock and meal and rest period claims involve common questions that predominate. The same is 24 true for claims that are derivative of those ones. Boyd, 300 F.R.D. at 442 (finding predominance 25 10 Leprino gets at this point by highlighting that some employees may have previously been compensated for certain meal period violations. The record does show that Leprino and the Union executed a memorandum of understanding 26 regarding Leprino’s agreement to compensate certain maintenance employees for interrupted meal periods occurring between January 1, 2013, and September 26, 2015. Doc. No. 52-1 at 96. Under this agreement, Leprino was to pay 27 affected employees one hour of their regular rate of pay for each interrupted and uncompensated meal period. Id. While evidence of this kind could come into play with individualized damages calculations, it does not alone require 28 denial of certification for a claim founded on a common contention regarding an allegedly unlawful uniform policy. 27 Case 1:17-cv-00686-AWI-BAM Document 74 Filed 01/06/21 Page 28 of 30 1 for derivative claims). Thus, to the extent the derivative claims are in fact derivative, these claims 2 satisfy the predominance requirement of Rule 23(b)(3). 3 4 G. Superiority 5 Certification under Rule 23(b)(3) also requires a finding that “a class action is superior to 6 other available methods for the fair and efficient adjudication of the controversy.” Fed. R. Civ. P. 7 23(b)(3). To evaluate superiority, the court shall consider four “pertinent” factors: (1) the class 8 members’ interests in individually controlling the prosecution or defense of separate actions; (2) 9 the extent and nature of any litigation concerning the controversy already begun by or against 10 class members; (3) the desirability or undesirability of concentrating the litigation of the claims in 11 the particular forum; and (4) the likely difficulties in managing a class action. Fed. R. Civ. P. 12 23(b)(3)(A)−(D). “A consideration of these factors requires the court to focus on the efficiency 13 and economy elements of the class action so that cases allowed under subdivision (b)(3) are those 14 that can be adjudicated most profitably on a representative basis.” Zinser v. Accufix Research 15 Inst., Inc., 253 F.3d 1180, 1190 (9th Cir. 2001) (quoting 7A Charles Alan Wright, Arthur R. Miller 16 & Mary Kay Kane, Federal Practice and Procedure § 1780, at 562 (2d ed. 1986)). “A class action 17 is the superior method for managing litigation if no realistic alternative exists.” Valentino v. 18 Carter–Wallace, Inc., 97 F.3d 1227, 1234 (9th Cir. 1996). In contrast, “[i]f each class member has 19 to litigate numerous and substantial separate issues to establish his or her right to recover 20 individually a class action is not superior.” Zinser, 253 F.3d at 1192. 21 Perez argues that class treatment is clearly superior, and Leprino does not substantively 22 address the issue in opposition. The Court finds the Rule 23(b)(3) factors weigh in favor of 23 certification. There is no indication that putative class members have any interest in individually 24 controlling the prosecution of separate actions. Nor is there indication of other actions raising the 25 same issues based on the same facts or indication that there is another forum where an action of 26 this kind could be raised. While managing a class is by nature more difficult than managing the 27 claims of a single plaintiff, there is no suggestion here that the proposed class would be 28 unmanageable. To the contrary, these claims seem particularly apt for class adjudication through 28 Case 1:17-cv-00686-AWI-BAM Document 74 Filed 01/06/21 Page 29 of 30 1 use of records and data in Leprino’s possession. See Kamar v. Radio Shack Corp., 254 F.R.D. 2 387, 405 (C.D. Cal. 2008). Finally, class litigation is superior here, as it often is in wage-and-hour 3 lawsuits, because “the individual damages of each employee are too small to make litigation costs 4 effective.” Wright, 2017 WL 9831398, at *12. 5 6 ORDER 7 Accordingly, IT IS HEREBY ORDERED that: 8 1. Perez’s certification motion (Doc. No. 48) is GRANTED IN PART and DENIED 9 IN PART as follows: 10 a. Consistent with the discussion above, Perez’s off-the-clock, meal and rest 11 period, and derivative claims are CERTIFIED for class aggregation under 12 Rule 23(b)(3). 13 b. Consistent with the discussion above, Perez’s claim for meal and rest period 14 violations is NOT CERTIFIED for purposes of the theories of recovery for 15 which he did not carry his burden under Rule 23. 16 c. The class is defined as follows: 17 All non-exempt hourly workers who are currently employed, or formerly have been employed, as non-exempt hourly employees at 18 Leprino’s Lemoore East facilities in Lemoore, California, at any time within four years prior to the filing of the original complaint 19 until January 6, 2021. 20 d. The on-duty meal period subclass is defined as follows: 21 All non-exempt hourly workers who are currently employed, or formerly have been employed, as non-exempt hourly employees at 22 Leprino’s Lemoore East plant in Lemoore, California, at any time within four years prior to the filing of the original complaint until 23 January 6, 2021, and who worked at least one shift that included an “on-duty meal period,” otherwise described as a shift of continuous 24 work with a meal period taken on the clock or a “straight 8” shift. 25 e. The separation wages subclass is defined as follows: All persons who have been discharged from or quit their 26 employment as non-exempt hourly employees at Leprino’s Lemoore East plant in Lemoore, California, at any time within four years 27 prior to the filing of the original complaint until January 6, 2021. 28 f. John Perez is APPOINTED as the class representative. 29 Case 1:17-cv-00686-AWI-BAM Document 74 Filed 01/06/21 Page 30 of 30 1 g. R. Rex Parris and the Parris Law Firm are APPOINTED as class counsel. 2 2. Leprino’s request for leave to file a sur-reply in opposition to Perez’s motion (Doc. 3 No. 69) is DENIED; 4 3. The parties must promptly MEET AND CONFER about the submission of a joint 5 stipulated class notice and distribution plan. Within twenty-one days of this order, 6 the parties must FILE either a stipulated class notice and distribution plan or a 7 notice that no stipulation can be agreed to. If the parties cannot agree to a class 8 notice or distribution plan, then Perez must FILE a proposed class notice and 9 distribution plan within thirty-five days of this order, and Leprino shall have 10 fourteen days following Perez’s filing to FILE any objections, and Perez shall have 11 seven days following Leprino’s filing to FILE a reply. 12 3. This case is REFERRED BACK to the assigned magistrate judge for further 13 scheduling and other proceedings consistent with this order. 14 IT IS SO ORDERED. 15 16 Dated: January 6, 2021 SENIOR DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 30