Rough v. Costco Wholesale Corp. ( 2021 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 MEGAN ROUGH, individually and on No. 2:19-cv-01340-MCE-DB behalf of all similarly situated current 11 and former employees of DEFENDANTS in the State of 12 California, MEMORANDUM AND ORDER 13 Plaintiff, 14 v. 15 COSTCO WHOLESALE CORPORATION, a Delaware 16 corporation; and DOES 1-50, inclusive, 17 Defendants. 18 19 By way of this action, Plaintiff Megan Rough seeks relief on behalf of herself and 20 others similarly situated (“Plaintiff”) against their former employer, Defendant Costco 21 Wholesale Corporation (“Defendant”). According to the First Amended Complaint 22 (“FAC”) (ECF No. 32), Defendant failed to correctly pay Plaintiff all minimum, regular, 23 and overtime wages owed by failing: (1) to factor a “nondiscretionary punctuality bonus” 24 into the regular rate of pay for purposes of calculating overtime wages and (2) to 25 compensate employees for off-the-clock (“OTC”) time employees accrued between 26 clocking out and completing Defendant’s exit security procedures. As a result, when 27 Plaintiff’s employment ended, she and members of the putative class purportedly failed 28 to receive unpaid wages owed and received inaccurate wage statements. Plaintiff’s FAC 1 thus alleges five wage-and-hour causes of action for violations of the California Labor 2 Code, the Industrial Welfare Commission (“IWC”) Wage Order, and the California 3 Business and Professions Code. 4 Presently before the Court is Defendant’s Motion to Dismiss and Strike (ECF 5 No. 33) pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12(f),1 on the grounds 6 that the FAC fails to state claims on which relief can be granted regarding the alleged 7 “nondiscretionary punctuality bonus” and should be stricken from the complaint. 8 Defendant has also filed a Motion for Partial Summary Judgment pursuant to Rule 56 9 (ECF No. 39), to be considered in the event this Court does not grant Defendant’s 10 Rule 12 Motion. Pursuant to Rule 23, Plaintiff has also moved for class certification 11 (ECF No. 46), while Defendant has filed a Motion to Deny Class Certification (ECF 12 No. 44). Finally, in connection with the class certification motions, both sides have filed 13 motions to strike evidence, and Plaintiff has filed a request to file a sur-reply. ECF 14 Nos. 54, 55, 58, 68. 15 As set forth below, Defendant’s Motion to Dismiss and to Strike (ECF No. 33) is 16 DENIED as MOOT, Defendant’s Motion for Partial Summary Judgment (ECF No. 39) 17 and Motion to Deny Class Certification are GRANTED (ECF No. 44) and the remaining 18 Motions are all DENIED.2 19 20 BACKGROUND3 21 22 Plaintiff worked as a non-exempt employee for Defendant on or about December 23 2017 to January 2018 and March 2018 to April 2019. She alleges that, while working 24 25 1 All further references to “Rule” or “Rules” are to the Federal Rules of Civil Procedure. 2 Because oral argument would not have been of material assistance, the Court ordered these 26 matters submitted on the briefs. ECF Nos. 34, 40, 45, 50, 69; see E.D. Cal. Local Rule 230(g). 27 3 Unless otherwise indicated, the facts set forth in this Section are taken, at times verbatim, from the Statement of Undisputed Facts in Support of Defendant’s Motion for Partial Summary Judgment. ECF 28 No. 39-2. 1 closing shifts during her employment, employees were required to work after clocking 2 out. 3 More specifically, at the end of shifts, Defendant did not allow its employees to 4 immediately leave the store through the front entrance. Instead, Defendant required 5 employees to walk to a designated exit location and call for a manager. Once the 6 manager arrived, a search of “employees’ bags for store merchandise” was conducted. 7 FAC, ECF No. 32, ¶ 27. The manager would then radio the parking lot security guards 8 to ensure it was safe to open the exit doors. Employees were only allowed to exit the 9 store upon confirmation from a manager. 10 These putative class members often had to wait “several minutes to complete this 11 process . . . [and] were not relieved of all duties until several minutes after clocking out.” 12 Id. Accordingly, employees were not compensated for the exit security procedure. As a 13 result, they were deprived of the statutory minimum wage for all time worked, leading to 14 a miscalculation of the regular rate for the proper compensation of overtime pay for all 15 hours worked. 16 Plaintiff also alleges Defendant maintains a “‘3-Minute Window (‘Rounding’)’ 17 policy” (the “Rounding Policy”) to provide compensation for adherence to assigned work 18 schedules in addition to payment for hours actually worked. Id. ¶ 24. Under the 19 Rounding Policy, employees receive pay as though they had clocked in or out at their 20 scheduled times so long as they actually clocked in within a three-minute grace period.4 21 Plaintiff asserts the Rounding Policy is communicated to employees through 22 managers, supervisors, and payroll clerks and that, since the Rounding Policy is used to 23 “induce the employee to adhere to and remain in compliance with their scheduled shift[,] 24 [it] is therefore a nondiscretionary punctuality bonus.” Id. ¶ 25. Given that, Plaintiff 25 further contends, “[t]he payments being made . . . are non-discretionary flat sums, which 26 4 For example, an employee scheduled to start at 9:00 a.m. who clocked in at 9:01 a.m. would be 27 compensated as if they had clocked in at their scheduled start time. This policy applies up until 9:03 AM, after which the employee would be paid based upon their actual time punch. FAC., ¶ 24; see also ECF 28 No. 33-1, 5:10-17. 1 are to be taken into account in an employee’s regular rate of pay.” Plf. Opp. to Summ. J. 2 Mot., ECF No. 43 at 10. Stated another way, Plaintiff contends that the Rounding Policy 3 results in employees receiving pay for time not worked and should be considered a 4 bonus, which would increase their hourly rate of pay for purposes of calculating their 5 overtime rates. It follows, according to Plaintiff, that employees were “regularly and 6 systematically deprived of full compensation for all overtime hours worked at the correct 7 rate of pay for overtime.” Id. 8 On May 28, 2019, Plaintiff filed the Complaint in California Superior Court, after 9 which Defendant timely removed the action by asserting federal jurisdiction under the 10 Class Action Fairness Act of 2005 (“CAFA”). 28 U.S.C. § 1332(d)(2). Plaintiff asserts 11 five causes of action for violation of: (1) Cal. Labor Code §§ 1194, 1197, and 1198 and 12 the “Minimum Wages” section of the Applicable IWC Wage Order; (2) Cal. Labor Code 13 §§ 510, 1194, and 1198, and the “Hours and Days of Work” section of the Applicable 14 IWC Wage Order; (3) Cal. Labor Code §§ 226 and 1198 and the “Records” section of the 15 Applicable IWC Wage Order; (4) Cal. Labor Code §§ 201, 203, 1198, and the “Minimum 16 Wages” and “Hours and Days of Work” sections of the Applicable IWC Wage Order; and 17 (5) Business and Professions Code §§ 17200, et seq., prohibiting acts of unfair 18 competition (“UCL”). She seeks to represent a class of “[a]ll current and former non- 19 exempt employees who worked for Defendants in the State of California at any time from 20 four years prior to the filing of the Complaint through the present,” totaling approximately 21 70,000 putative class members. Id. ¶ 33; Mot. Certify Class, ECF No. 46-1, 16:14. 22 Additionally, Plaintiff seeks to establish three subclasses: (1) The Wage Statement 23 Subclass, (2) The Waiting Time Penalties Subclass, and (3) The Closing-Shift Subclass. 24 Id. at 6-7. 25 /// 26 /// 27 /// 28 /// 1 STANDARD 2 3 A. Motion to Dismiss and Strike 4 Because Defendant’s Motion for Partial Summary Judgment is GRANTED, the 5 Court need not address the Rule 12 Standard applicable to this Motion, which is 6 DENIED as moot. 7 B. Motion for Summary Judgment 8 The Federal Rules of Civil Procedure provide for summary judgment when “the 9 movant shows that there is no genuine dispute as to any material fact and the movant is 10 entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. 11 Catrett, 477 U.S. 317, 322 (1986). One of the principal purposes of Rule 56 is to 12 dispose of factually unsupported claims or defenses. Celotex, 477 U.S. at 325. 13 Rule 56 also allows a court to grant summary judgment on part of a claim or 14 defense, known as partial summary judgment. See Fed. R. Civ. P. 56(a) (“A party may 15 move for summary judgment, identifying each claim or defense—or the part of each 16 claim or defense—on which summary judgment is sought.”); see also Allstate Ins. Co. v. 17 Madan, 889 F. Supp. 374, 378-79 (C.D. Cal. 1995). The standard that applies to a 18 motion for partial summary judgment is the same as that which applies to a motion for 19 summary judgment. See Fed. R. Civ. P. 56(a); State of Cal. ex rel. Cal. Dep’t of Toxic 20 Substances Control v. Campbell, 138 F.3d 772, 780 (9th Cir. 1998) (applying summary 21 judgment standard to motion for summary adjudication). 22 In a summary judgment motion, the moving party always bears the initial 23 responsibility of informing the court of the basis for the motion and identifying the 24 portions in the record “which it believes demonstrate the absence of a genuine issue of 25 material fact.” Celotex, 477 U.S. at 323. If the moving party meets its initial 26 responsibility, the burden then shifts to the opposing party to establish that a genuine 27 issue as to any material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith 28 /// 1 Radio Corp., 475 U.S. 574, 586-87 (1986); First Nat’l Bank v. Cities Serv. Co., 391 U.S. 2 253, 288-89 (1968). 3 In attempting to establish the existence or non-existence of a genuine factual 4 dispute, the party must support its assertion by “citing to particular parts of materials in 5 the record, including depositions, documents, electronically stored information, 6 affidavits[,] or declarations . . . or other materials; or showing that the materials cited do 7 not establish the absence or presence of a genuine dispute, or that an adverse party 8 cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). The 9 opposing party must demonstrate that the fact in contention is material, i.e., a fact that 10 might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, 11 Inc., 477 U.S. 242, 248, 251-52 (1986); Owens v. Local No. 169, Assoc. of W. Pulp and 12 Paper Workers, 971 F.2d 347, 355 (9th Cir. 1987). The opposing party must also 13 demonstrate that the dispute about a material fact “is ‘genuine,’ that is, if the evidence is 14 such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 15 477 U.S. at 248. In other words, the judge needs to answer the preliminary question 16 before the evidence is left to the jury of “not whether there is literally no evidence, but 17 whether there is any upon which a jury could properly proceed to find a verdict for the 18 party producing it, upon whom the onus of proof is imposed.” Anderson, 477 U.S. at 251 19 (quoting Improvement Co. v. Munson, 81 U.S. 442, 448 (1871)) (emphasis in original). 20 As the Supreme Court explained, “[w]hen the moving party has carried its burden under 21 Rule [56(a)], its opponent must do more than simply show that there is some 22 metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586. Therefore, 23 “[w]here the record taken as a whole could not lead a rational trier of fact to find for the 24 nonmoving party, there is no ‘genuine issue for trial.’” Id. at 587. 25 In resolving a summary judgment motion, the evidence of the opposing party is to 26 be believed, and all reasonable inferences that may be drawn from the facts placed 27 before the court must be drawn in favor of the opposing party. Anderson, 477 U.S. at 28 255. Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s 1 obligation to produce a factual predicate from which the inference may be drawn. 2 Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d, 3 810 F.2d 898 (9th Cir. 1987). 4 C. Plaintiff’s Motion for Class Certification/Defendant’s Motion to Deny Class Certification 5 6 A court may certify a class if a plaintiff demonstrated that all of the prerequisites of 7 Federal Rule of Civil Procedure 23(a) have been met, and that at least one of the 8 requirements of Rule 23(b) have been met. Fed. R. Civ. P. 23; see also Valentino v. 9 Carter-Wallace, Inc., 97 F.3d 1227, 1234 (9th Cir. 1996). Rule 23(a) requires 10 numerosity, commonality, typicality, and adequacy. Fed. R. Civ. P. 23(a). Rule 23(b) 11 requires a plaintiff to establish one of the following: (1) that there is a risk of substantial 12 prejudice from separate actions; (2) that declaratory or injunctive relief benefitting the 13 class as a whole would be appropriate; or (3) that common questions of law or fact 14 predominate and the class action is superior to other available methods of adjudication. 15 Fed. R. Civ. P. 23(b). 16 It is within the court’s broad discretion to “determine whether a class should be 17 certified, and to revisit that certification throughout the legal proceedings.” Salas v. 18 Toyota Motor Sales, U.S.A., Inc., No. CV 15-8629, 2019 WL 1940619, at *2 (C.D. Cal. 19 Mar. 27, 2019) (quoting United Steel, Paper & Forestry, Rubber Mfg. Energy, Allied 20 Indus. & Serv. Workers Int’l Union, AFL-CIO, CLC v. ConocoPhillips Co., 593 F.3d 802, 21 810 (9th Cir. 2010)). The court is tasked with conducting a “rigorous” analysis before 22 granting or denying class certification. This analysis may “entail some overlap with the 23 merits of the plaintiff’s underlying claim[,]” and the court may find it necessary to, at 24 times, “probe behind the pleadings[.]” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 25 350-51, 131 S. Ct. 2541, 180 L. Ed. 2d 374 (2011). But, even so, “merits questions may 26 be considered to the extent – but only to the extent – that they are relevant to 27 determining whether the Rule 23 prerequisites . . . are satisfied.” Amgen Inc. v. Conn. 28 Ret. Plans & Tr. Funds, 568 U.S. 455, 466, 133 S. Ct. 1184, 185 L. Ed. 2d 308 (2013). 1 Rule 23 does not permit a “free-ranging merits inquir[y] . . . at the certification stage.” Id.; 2 see also Ellis v. Costco Wholesale Corp., 657 F.3d 970, 983 n.8 (9th Cir. 2011) 3 (explaining that a district court’s examination of the merits should take place “only 4 inasmuch as [the court] must determine whether common questions exist; not to 5 determine whether class members could actually prevail on the merits of their claims.”). 6 Class certification should not become a “mini-trial.” Ellis, 657 F.3d at 983 n.8; see also 7 Salas, 2019 WL 1940619, at *2. 8 9 ANALYSIS 10 11 A. Motion for Partial Summary Judgment 12 Defendant moves for partial summary judgment of Plaintiff’s claims involving 13 Defendant’s Rounding Policy. ECF No. 39. California law holds that “[a]ny work in 14 excess of eight hours in one workday and any work in excess of 40 hours in any one 15 workweek . . . shall be compensated at the rate of no less than one and one-half times 16 the regular rate of pay for an employee.” Cal. Labor Code § 510 (emphasis added). 17 California law does not define what constitutes the regular rate of pay, but where there is 18 an “absence of controlling or conflicting California law, California courts generally look to 19 federal regulations under the [Fair Labor Standards Act (“FLSA”)] for guidance.” See’s 20 Candy Shops, Inc. v. Superior Court, 210 Cal. App. 4th 889, 903 (2012). Additionally, 21 while not binding on the courts, the California Division of Labor Standards Enforcement’s 22 (“DLSE”) Enforcement and Policy Manual (“DLSE Manual”) “may be considered for 23 persuasive value.” See’s Candy Shops, 210 Cal. App. 4th at 902. 24 FLSA defines the “‘regular rate of pay’ . . . to include all remuneration for 25 employment paid to . . . the employee, but shall not be deemed to include…payments 26 made for occasional periods when no work is performed . . . .” 29 U.S.C.A. § 207(e)(2). 27 The DLSE Manual in turn provides that the regular rate must include “any sum paid for 28 hours worked . . . [and] any payment for performing a duty.” DLSE Manual (Rev. 2006) 1 § 49.1.2.3. Further, a non-discretionary bonus must be included in the regular rate, and 2 “[b]onuses which are announced to employees to induce them to work more steadily or 3 more rapidly or more efficiently or to remain with the firm are regarded as part of the 4 regular rate of pay.” 29 C.F.R. § 778.211. The DLSE Manual defines a bonus as 5 “money promised to an employee in addition to the . . . hourly rate usually due as 6 compensation[,] . . . [a]n addition to salary or wages normally paid for extraordinary work, 7 [or a]n inducement to employees to procure efficient or faithful service.” DLSE Manual 8 (Rev. 2006) § 35.1. 9 Defendant asserts that the Rounding Policy is a lawful payment for time not 10 worked because “[employees] do not receive this pay for performing any duty” and there 11 was “no promise of a bonus announced to employees.” ECF 39-1 at 7-12.5 Defendant, 12 therefore, contends there is no question that an increased rate was warranted under the 13 Rounding Policy. Id. at 12-14. Plaintiff, on the other hand, alleges Defendant’s 14 Rounding Policy was intended to pay employees “in addition to the employee’s hourly 15 wage, and was paid to induce employees to adhere to and remain substantially in 16 compliance with their assigned shift,” thus constituting a bonus. ECF No. 43 at 10-11; 17 see also, FAC, ¶ 24-25. Plaintiff thus contends that the Rounding Policy payments must 18 be calculated as part of the regular rate. Id. at 11. 19 Plaintiff’s unsupported claim that the Rounding Policy is a punctuality bonus is 20 dubious at best. In fact, the policy actually encourages employees to clock in three 21 minutes late and to clock out three minutes early. Moreover, if the Court were to accept 22 Plaintiff’s argument, then regular rate of pay for essentially any employee in California, if 23 not the nation, that is subject to a time-keeping system would be called into question 24 because “all timekeeping entails rounding of some sort: the question is not whether to 25 round, but how much to round—to the nearest quarter-hour, the nearest tenth-hour, the 26 nearest minute, the nearest second, or the nearest nanosecond.” ECF No. 39-1 at 7. 27 5 Defendant cites the following persuasive authority in support of its argument, id. at 12: “A bonus is money promised to an employee in addition to the monthly salary, hourly wage, commission or piece 28 rate usually due as compensation.” DLSEManual (Rev.) § 2.5.5 at 2-3, § 35.1 at 35-1 (June 2002). 1 Regardless, though, Defendant has proffered undisputed evidence that the Rounding 2 Policy was actually implemented as a three-minute grace period for employees that 3 clock in or out slightly too early or too late. ECF No. 39-1 at 14. By its nature, this 4 payment is neither remuneration for hours worked nor for performing any employment 5 duty and, thus, not included in the regular rate of pay. 6 Because the evidence clearly supports that Defendant’s Rounding Policy is a 7 lawful payment for time not worked, payments made pursuant to that policy need not be 8 included in the calculation of overtime wages. Defendant’s Motion for Partial Summary 9 Judgment is GRANTED, and Defendant’s Motion to Dismiss and Strike is DENIED as 10 moot. 11 B. Plaintiff’s Motion for Class Certification and Defendant’s Motion to Deny Class Certification 12 13 Plaintiff’s Motion for Class Certification seeks to establish the “Nonexempt Class,” 14 which consists of “[a]ll current and former nonexempt employees who worked for Costco 15 in the State of California at any time from four years prior to the filing of the Complaint 16 through the present.” Pl’s. Mot. Class Cert., ECF No. 46, at 6. Plaintiff also requests the 17 establishment of three subclasses: (1) The Wage Statement Subclass, which includes 18 class members who “worked for Defendant in the California [sic] within one year of the 19 filing of the complaint and whose times punches were automatically changed through the 20 Defendant’s Three Minute Window Policy”; (2) the Closing Shift Subclass, that includes 21 class members “who worked for Defendants in the State of California at one of 22 Defendants’ warehouse stores and who worked one or more closing shifts at any time 23 from four years prior to the filing of the Complaint to March 4, 2019”; and (3) The Waiting 24 Time Subclass, which includes class members “whose employment with Costco ended 25 at any time from three years prior of the filing of the Complaint to the present.” Id. at 6-7. 26 However, because the allegations involving the Rounding Policy have been dismissed 27 and struck from the complaint, this Court need not address the arguments involving the 28 /// 1 “Wage Statement Subclass” and certification of the “Wage Statement Subclass” is 2 DENIED as a matter of law. 3 The Court further finds that both of the remaining proposed subclasses fail to 4 satisfy the requirements of Rule 23. Specifically, the predominance inquiry 5 of adjudication by representation.” Amchem Prods, Inc. v. Windsor, 521 U.S. 591, 594 6 (1997); see also Tait v. BSH Home Appliances Corp., 289 F.R.D. 466, 478 (C.D. Cal. 7 2012). While there is “substantial overlap” between the commonality and predominance 8 test, the predominance test is “far more demanding.” Wolin v. Jaguar Land Rover 9 N. Am. LLC, 617 F.3d 1168, 1172 (9th Cir. 2010). The predominance analysis “asks 10 whether the common, aggregating-enabling, issues in the case are more prevalent or 11 important than non-common, aggregation defeating, individual issues.” Tyson Foods 12 Inc. v. Bouaphakeo, 577 U.S. 442, 453 (2016). 13 Plaintiff points to two specific questions of fact and law that she asserts are 14 common to the remaining proposed classes: “Whether Costco’s exit procedures deprive 15 employees of compensation for all hours suffered and permitted to work; and [w]hether 16 Costco’s . . . exit procedures result in employees failing to be compensated for all wages 17 upon discharge of employment.” ECF No. 46 at 17:18-21. In support, Plaintiff points to 18 a number of instances in which courts granted class certification when faced with similar 19 common questions that predominate. See e.g., Utne v. Home Depot U.S.A., Inc., 20 No. 16-cv-01854-RS, 2018 WL 1989499 (N.D. Cal. 2018); Frlekin v. Apple Inc., 21 309 F.R.D. 518 (N.D. Cal. 2015); Moore v. Ulta Salon, Cosmetics & Fragrance, Inc., 22 311 F.R.D. 590 (C.D. Cal. 2015); Rodriguez v. Nike Retail Services, Inc., No. 5:14-cv- 23 01508-BLF, 2016 WL 8729923 (N.D. Cal. 2016). 24 Defendant nonetheless contends that Plaintiff failed to establish that common 25 issues predominate here because resolving the claims alleged would require an 26 examination, for each of the 70,000 class members, of whether: “(1) the employee in 27 question experienced a delay, (2) the delay resulted from Costco’s action, (3) it was 28 more than de minimis, (4) it was not recorded by exception log, (5) it was not covered by 1 rounding in effect that day, and (6) managers knew or should have known of an unpaid 2 delay and nonetheless stood idly by.” ECF No. 44-1 at 7. This Court agrees. 3 California Law requires three elements to establish a claim for failure to 4 compensate for OTC work: “[A] plaintiff may establish liability for an off-the-clock claim 5 by proving that (1) he performed work for which he did not receive compensation; 6 (2) that defendants knew or should have known that plaintiff did so; but that (3) the 7 defendants stood idly by.” Jimenez v. Allstate Ins. Co., 765 F.3d 1161, 1165 (9th Cir. 8 2014). “‘Where no substantial evidence points to a uniform, companywide policy,’ and 9 ‘proof of off-the-clock liability would have had to continue in an employee-by-employee 10 fashion,’ class certification is inappropriate.” Nevarez v. Costco Wholesale Corporation, 11 2:19-cv-03454-SVW-SK, 2019 WL 7421960, at *6 (C.D. Cal. Dec. 26, 2019) (quoting 12 Howard v. CVS Caremark Corp., CV 13-04748 SJD (PJWx), 2014 WL 11497793, at *10 13 (C.D. Cal. Dec. 19, 2014)). 14 Indeed, class-wide predominance is typically met when an employer’s express 15 policy universally creates periods of off-the-clock work. See Dukes, 564 U.S. at 359 16 (finding no common question predominates the class because there is no companywide 17 discriminatory pay and promotion policy). However, Defendant produced evidence that it 18 has no uniform, companywide policy creating exit delays; instead, Defendant’s policy 19 “has always been to pay employees for any exit delays and inform employees as such.” 20 See ECF No. 44-1 at 7-9; ECF No. 44-6, Rajski Decl. ¶ 29, Ex. 10, Vasquez Decl. ¶¶ 9, 21 11-17, Kang Decl. ¶¶ 4-6, 11, 15, and Ex. 15 ECF No. 44-1, at 8-10. Indeed, per 22 Costco’s policy, “each warehouse manager exercises discretion as to exit practices.” 23 ECF No. 44-1 at 7. Moreover, “[c]losing-shift exits vary from warehouse to warehouse, 24 manager to manager, employee to employee, day to day.” Id. at 8; see also ECF 25 No. 44-6, Vasquez Decl. ¶ 9. Finally, bag checks are also conducted at the discretion of 26 each store manager, not according to corporate policy. Id. at Kang Decl. ¶¶ 5, 11. 27 Because there is no companywide policy common to all Costco stores, the 28 predominance element of Rule 23 is not met. See Nevarez v. Costco Wholesale 1 | Corporation, 2019 WL 7421960, at *8. Plaintiffs’ Motion for Class Certification is 2 | DENIED, and Defendant's Motion to Deny Class Certification is GRANTED.® 3 4 CONCLUSION 5 6 For the aforementioned reasons, Defendant’s Motion to Dismiss and to Strike 7 | (ECF No. 33) is DENIED as MOOT, Defendant’s Motion for Partial Summary Judgment 8 | is GRANTED (ECF No. 39), Defendant’s Motion to Deny Class Certification is 9 | GRANTED (ECF No. 44), Plaintiffs’ Motion for Class Certification is DENIED (ECF 10 | No. 46), Defendant’s Motion to Strike Portions of Plaintiffs’ Evidence Submitted In 11 | Support of Motion for Class Certification is DENIED (ECF No. 54), Defendant’s Daubert 12 | Motion to Strike Evidence is DENIED (ECF No. 55), Plaintiffs’ Motion to Strike 13 | Defendant's Evidence In Support of Motion to Deny Class Certification is DENIED (ECF 14 | No. 58), and Plaintiffs’ Request to File Sur-Reply to Defendant’s Motion to Deny Class 15 | Certification is DENIED (ECF No. 68). 16 IT |S SO ORDERED. 17 | Dated: September 27, 2021 "8 AK _ LCs □ 19 MORRISON C. ENGLA JR) SENIOR UNITED STATES D Xt T JUDGE 20 21 22 23 24 25 ® Defendant's Motion to Strike Portions of Plaintiff's Evidence Submitted In Support of Motion for 26 Class Certification is DENIED as moot. As a result of the proposed classes failing to satisfy the predominance requirement of Rule 23 concerning Defendant’s companywide policies, the Court did not rely on the portions of evidence Plaintiff moved to strike in her instant motion (ECF No. 58). Accordingly, 27 Plaintiff's Motion to Strike Defendant’s Evidence In Support of Motion to Deny Class Certification is DENIED on the merits as is her Request to File Sur-Reply to Defendant’s Motion to Deny Class 28 | Certification. 13