Blackwell v. Commercial Refrigeration Specialists, Inc. ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 1] Tim Blackwell, No. 2:20-cv-01968-KJM-CKD 12 Plaintiff, ORDER 13 v. 14 Commercial Refrigeration Specialists, Inc. & 15 Climate Pros, LLC, 16 Defendants. 17 Plaintiff Tim Blackwell brought this putative class action and a representative action 18 | under the Private Attorney Generals Act (PAGA) against defendants Commercial Refrigeration 19 | Specialists, Inc. and Climate Pros, LLC (collectively, defendants), alleging wage and hour 20 | violations and unfair business practices in connection with his former employment with 21 | defendants. See generally First Am. Compl. (FAC), ECF No. 33. Blackwell moves to certify a 22 | class and five subclasses, see Mot. to Certify (Mot.), ECF No. 43, and moves to strike numerous 23 | declarations filed with defendants’ opposition to class certification, see Mot. Strike, ECF No. 47. 24 | Defendants oppose, Opp’n Mot. Certify (Opp’n), ECF No. 44; Opp’n Mot. Strike, ECF No. 48, 25 | and the matters are fully briefed, Reply, ECF No. 46. For the reasons discussed below, the court 26 | grants in part and denies in part the motion to certify. The court denies the motion to strike. 1 I. BACKGROUND 2 Climate Pros is a commercial refrigeration and HVAC company specializing in 3 maintenance, repair, construction and equipment sales and installation. Ex. A, Decl. of Todd 4 Ernest (Ernest Decl.) ¶ 4, ECF No. 44-1. Climate Pros LLC is the successor entity to 5 Commercial Refrigeration Specialists, Inc. Not. Removal ¶ 2, ECF No. 1; Ex. A, Dep. of Todd 6 Ernest (Ernest Dep.) at 116:13-20, ECF No. 43-3; see also Ex. C, ECF No. 44-1.1 Since April 7 2016, defendants have employed approximately 305 service technicians across four different 8 branch locations in California. Opp’n at 2; Ernest Decl. ¶ 7, ECF No. 44-1. These technicians 9 sometimes hold different job titles, including service journeymen and service apprentices. Ernest 10 Decl. ¶¶ 6, 8. Technicians typically drive company trucks from their homes to customer locations 11 at the start of each day. Ernest Dep. at 184:4-13. Technicians belong to one of fifteen different 12 union locals, and their wages, hours and working conditions are governed by their local’s 13 collective-bargaining agreement (CBA). Ernest Decl. ¶ 8. Blackwell was a service technician 14 employed by defendants from August 2018 to December 2019. Ex. B, Decl. of Tim Blackwell 15 (Blackwell Decl.) ¶ 2, ECF No. 43-3. 16 Defendants’ policy is to compensate employees for any time spent driving beyond the first 17 hour of commute time. Ernest Dep. at 99:18–101:14. Some technicians work after-hours shifts, 18 where they respond to customer requests. Id. at 77:15–22. Defendants’ policy is to pay 19 technicians for these shifts. Id. at 190:16-191:1. Technicians enter their own time using a mobile 20 app on their phones. Ernest Decl. ¶ 12; Ex. B, Decl. of Norm Furtado (Furtado Decl.) ¶ 10, ECF 21 No. 44-1. Defendants provide training on how to use the mobile app. Ernest Dep. at 57:1–15, 22 58:15–59:3. Because defendants expect technicians to account for all their time each workday, 23 technicians have the option of recording their meal breaks, training, and nonpaid or paid commute 24 time. Ernest Decl. ¶ 12; Furtado Decl. ¶ 11. Technicians may take rest breaks whenever they 25 want; they do not need to request breaks from a supervisor or dispatcher. Ernest Decl. ¶ 19; 26 Furtado Decl. ¶ 25. 1 Both parties include excerpts of the Ernest deposition in exhibits attached to their briefings. The court will cite to both exhibits interchangeably as “Ernest Dep.” 1 In July 2020, Blackwell filed this putative class action in Sacramento County Superior 2 Court. Not. Removal Ex. A (Compl.), ECF No. 1-1. Defendants removed the matter, invoking 3 this court’s diversity jurisdiction under the Class Action Fairness Act. See generally Not. 4 Removal. In June 2021, the court consolidated this putative class action with Blackwell’s 5 representative action under the PAGA. See Prev. Order (June 25, 2021) at 2, ECF No. 32. In 6 July 2021, Blackwell filed his consolidated, operative complaint. See generally FAC. Among 7 other claims, Blackwell argues defendants (1) failed to provide required rest breaks by improperly 8 treating split shifts in a workday as two separate shifts, effectively allowing rest breaks only after 9 every 3.5 hours of work; (2) failed to pay for travel time; and (3) failed to pay for on-call, after- 10 hours time spent fielding customer phone calls. See generally FAC; Mot. Mem. (Mem.) at 1, 11 ECF No. 43. 12 Blackwell now moves to certify a class of defendants’ current and former service 13 technicians and other employees performing similar work in California between April 6, 2016 14 and “the present.” Mem. at 1. Blackwell also seeks certification of five subclasses as defined 15 below: 16 1. Rest Break Subclass: All defendants’ current and formerly employed service technicians, 17 service journeymen, service apprentices, and any person performing similar work 18 regardless of job title who worked three and one-half (3.5) hours or more in a day in 19 California during the period from April 6, 2016, to the present; 20 Or, as an alternative: All defendants’ current and formerly employed service 21 technicians, service journeymen, service apprentices, and any person performing 22 similar work regardless of job title who worked three and one-half (3.5) hours or 23 more in a day in California without receiving all paid 10-minute breaks during 24 which they were relieved of all duties, during the period from April 6, 2016, to the 25 present; 26 2. Minimum Wage Subclass: All defendants’ current and formerly employed service 27 technicians, service journeymen, service apprentices, and any person performing similar 1 work regardless of job title who worked in California and were not properly paid all 2 minimum wages during the period from April 6, 2016, to the present; 3 3. On-Call Service Employee Subclass: All defendants’ current and formerly employed 4 service technicians, service journeymen, service apprentices, and any person performing 5 similar work regardless of job title who worked in California at any time during the period 6 from April 6, 2016 to the present, and who also fielded customer after hours on-call 7 requests to determine immediate need for service. 8 4. & 5. Two remaining subclasses—wage statement subclass and terminated employee 9 subclass—are derivative of the rest break and on-call service subclasses. 10 Mot. at 1–2. As noted, defendants oppose the motion to certify, see Opp’n, and Blackwell 11 replied, see Reply. Blackwell also moves to strike declarations filed by defendants in their 12 opposition to class certification. See generally Mot. Strike. Defendants oppose, Opp’n Mot. 13 Strike, and Blackwell has not replied to this motion. 14 The court held a hearing on both motions on January 21, 2022. Kenneth Yoon appeared 15 for Blackwell. Judson Stelter and Michael Chropowicz appeared for defendants. See Min. Order, 16 ECF No. 49. 17 II. LEGAL STANDARD 18 Litigation by a class is “an exception to the usual rule” that only individual named parties 19 bring and conduct lawsuits. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 348 (2011) (citation 20 and internal quotation marks omitted). Only when a class action “promot[es] . . . efficiency and 21 economy of litigation,” should a motion for certification be granted. Crown, Cork & Seal Co. v. 22 Parker, 462 U.S. 345, 349 (1983). A court considers whether class litigation promotes 23 “economies of time, effort, and expense, and . . . uniformity of decision as to persons similarly 24 situated, without sacrificing procedural fairness or bringing about other undesirable results.” Fed. 25 R. Civ. P. 23(b)(3) advisory committee’s note to 1966 amendment. 26 To be eligible for certification, the proposed class must be “precise, objective, and 27 presently ascertainable.” Williams v. Oberon Media, Inc., No. 09-8764, 2010 WL 8453723, at *2 28 (C.D. Cal. Apr. 19, 2010). The proposed class definition need not identify every potential class 1 member from the very start. See, e.g., Doe v. Charleston Area Med. Ctr., Inc., 529 F.2d 638, 645 2 (4th Cir. 1975); O’Connor v. Boeing N. Am., Inc., 184 F.R.D. 311, 319 (C.D. Cal. 1998). The 3 requirement is a practical one. It is meant to ensure the proposed class definition will allow the 4 court to efficiently and objectively ascertain whether a particular person is a class member, see In 5 re TFT-LCD (Flat Panel) Antitrust Litig., 267 F.R.D. 583, 592 (N.D. Cal. 2010), for example, so 6 that each putative class member can receive notice, O’Connor, 184 F.R.D. at 319. 7 Class certification is governed by Federal Rule of Civil Procedure 23. The court must 8 first determine whether to certify a putative class, and if it does, it must then define the class 9 claims and issues and appoint class counsel. Fed. R. Civ. P. 23(c)(1), (g). Under Rule 23(c)(5), 10 for purposes of certification, a subclass is treated exactly like a class. To be certified, a putative 11 class must meet the threshold requirements of Rule 23(a) and the requirements of one of the 12 subsections of Rule 23(b), which defines three types of classes. Leyva v. Medline Indus. Inc., 13 716 F.3d 510, 512 (9th Cir. 2013). Here, Blackwell seeks certification only under Rule 23(b)(3), 14 which provides for certification of a class where common questions of law and fact predominate 15 and a class action is the superior means of adjudication. Mem. at 2. 16 Rule 23(a) imposes four requirements on every class. First, the class must be “so 17 numerous that joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). Second, 18 questions of law or fact must be common to the class. Fed. R. Civ. P. 23(a)(2). Third, the named 19 representatives’ claims or defenses must be typical of those of the class. Fed. R. Civ. P. 23(a)(3). 20 And fourth, the representatives must “fairly and adequately protect the interests of the class.” 21 Fed. R. Civ. P. 23(a)(4). If the putative class meets these requirements, Rule 23(b)(3) imposes 22 two additional requirements: first, “that the questions of law or fact common to class members 23 predominate over any questions affecting only individual members,” and second, “that a class 24 action is superior to other available methods for fairly and efficiently adjudicating the 25 controversy.” The test of Rule 23(b)(3) is “far more demanding,” than that of Rule 23(a). Wolin 26 v. Jaguar Land Rover N. Am., LLC, 617 F.3d 1168, 1172 (9th Cir. 2010) (quoting Amchem 27 Prods., Inc. v. Windsor, 521 U.S. 591, 623–24 (1997)). 1 “The party seeking class certification bears the burden of demonstrating that the 2 requirements of Rules 23(a) and (b) are met.” United Steel, Paper & Forestry, Rubber, Mfg. 3 Energy, Allied Indus. & Serv. Workers Int’l Union, AFL-CIO C.L.C. v. ConocoPhillips Co., 4 593 F.3d 802, 807 (9th Cir. 2010). This burden is real; Rule 23 embodies more than a “mere 5 pleading standard.” Wal-Mart, 564 U.S. at 350. The party must “prove that there are in fact 6 sufficiently numerous parties, common questions of law or fact, etc.” Id. (emphasis in original). 7 The trial court must then conduct a “rigorous analysis” of whether the party has met its burden, 8 id. at 351, and “analyze each of the plaintiff’s claims separately,” Berger v. Home Depot USA, 9 Inc., 741 F.3d 1061, 1068 (9th Cir. 2014) (citing Erica P. John Fund, Inc. v. Halliburton Co., 10 563 U.S. 804, 809 (2011)). The court must verify the putative class’s “actual, not presumed, 11 conformance with Rule 23(a) . . . .” Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160 (1982). 12 This inquiry often overlaps with consideration of the merits of the plaintiffs’ substantive claims. 13 Wal-Mart, 564 U.S. at 351–52. Indeed, “a district court must consider the merits if they overlap 14 with the Rule 23(a) requirements.” Ellis v. Costco Wholesale Corp., 657 F.3d 970, 981 (9th Cir. 15 2011) (emphasis in original) (citing Wal-Mart, 564 U.S. at 351–52); see also Comcast Corp. v. 16 Behrend, 569 U.S. 27, 35 (2013) (“[O]ur cases requir[e] a determination that Rule 23 is satisfied, 17 even when that requires inquiry into the merits of the claim.”). These same “analytical 18 principles” also apply to the court’s analysis of whether the plaintiff meets its burden under 19 Rule 23(b). Comcast, 569 U.S. at 34. 20 III. ANALYSIS 21 A. Predominance 22 The court first considers Rule 23(b)’s predominance requirement, which Blackwell’s 23 proposed rest break and minimum wage subclasses do not satisfy. His on-call subclass, however, 24 does satisfy predominance as explained below. 25 1. Rest Break Subclass 26 Blackwell suggests two common issues of the rest break subclass predominate over any 27 individual questions: (1) defendants’ policy not to provide rest breaks for split shifts; and 28 (2) defendants’ failure to maintain a policy “to affirmatively relieve employees of all duty during 1 rest breaks, but rather, placed the burden on workers to figure out when to take rest breaks.” 2 Reply at 1; Mem. at 9–10 (citing Cal. Code Regs. tit. 8 § 11040). In the context of a wage and 3 hour lawsuit, “common issues predominate in those cases where the plaintiff proffers sufficient 4 evidence to demonstrate that an unofficial policy exists and applies uniformly to all class 5 members.” Campbell v. Vitran Express Inc., 2015 WL 7176110, at *7 (C.D. Cal. Nov. 12, 2015). 6 But “if there is no evidence of a uniform company policy, then the case largely rests on the 7 individual circumstances of each employee’s missed [ ] breaks.” Id. Here, Blackwell has not 8 proffered sufficient evidence of a uniform policy. 9 In fact, Blackwell himself argues defendants let employees figure out their own rest 10 breaks. Mem. at 9. Blackwell knew he could take breaks, no one told him not to take breaks, and 11 nothing prevented him from taking breaks while working. Ex. D, Dep. of Tim Blackwell 12 (Blackwell Dep.) at 63:19–25, 64:8–13, 66:17–23, 67:1–9, 105:22–106:17, ECF No. 44-1. 13 Defendants’ CEO Todd Ernest also testified at deposition that technicians may take a break 14 “whenever they need to,” and “there’s no one policing this for them to say they cannot take a rest 15 break.” Ernest Dep. at 238:14–239:10. Most technicians’ rest breaks were determined under 16 their local unions’ policies, not defendants’ policy. Ernest Dep. at 74:6–13; Ernest Decl. ¶ 22; 17 Furtado Decl. ¶ 26. As a result, Blackwell’s case largely rests on the individual circumstances of 18 each employee. 19 Blackwell’s evidence does show defendants had “no policy to affirmatively relieve 20 employees of all duty during rest breaks, but rather, placed the burden on workers to figure out 21 when to take rest breaks.” Reply at 1 (emphasis added). But “that is just the opposite of a 22 uniform employment practice that would provide the commonality needed for a class action; it is 23 a policy against having uniform employment practices.” Wal-Mart, 564 U.S. at 355 (emphasis in 24 original). Because Blackwell has not identified a common issue that is capable of class-wide 25 resolution, his rest break subclass does not meet the predominance requirement. 26 2. Minimum Wage Subclass 27 To support certification of the minimum wage subclass, Blackwell argues defendants 28 “maintain a common practice of not paying for travel time recorded as commute time, even 1 though defendants maintain an undisputed policy to check employees’ recorded time for accuracy 2 and correct it as needed.” Reply at 2. But defendants’ policy allows technicians to run personal 3 errands during their travel, though this time is unpaid. Ernest Decl. ¶ 10; Furtado Decl. ¶ 29. 4 Technicians are the ones responsible for inputting their time into the mobile app, including unpaid 5 or paid commute time. Ernest Decl. ¶ 12; Furtado Decl. ¶ 11. As a result, supervisors reviewing 6 time records would have no reason to second-guess an employee’s entry of unpaid travel time, 7 since employees may have, permissibly, spent that time engaged in personal business. Opp’n at 8 15. “Because the Court cannot determine whether a driver performed work during the interval in 9 question without undertaking individualized inquiries,” Cornn v. UPS, 2005 U.S. Dist. LEXIS 10 30419, at *17–18 (N.D. Cal. Aug. 26, 2005), the subclass does not satisfy the predominance 11 requirement. 12 3. On-Call Subclass 13 Blackwell’s on-call subclass satisfies the predominance requirement. Blackwell 14 points to three common issues shared by the subclass: (1) whether employees should be 15 compensated for all on-call time; (2) whether employees were paid for on-call time, including 16 time spent fielding customer calls; and (3) whether defendants knew or should have known 17 employees were performing work for which they were not, but should have been, paid. Mem. at 18 14–17. These questions are subject to common proof, such as relevant policies of the defendants 19 and testimony from defendant witnesses. Id. at 14. Moreover, individual inquiries would not 20 overwhelm the common issues; Blackwell’s expert, Dr. Brian Kriegler, testified defendants’ 21 timekeeping data and daily schedules can identify the extent to which employees were not paid 22 for after-hours work. Ex. F, Decl. of Brian Kriegler (Kriegler Decl.) ¶¶ 7–8, ECF No. 43-3. 23 Defendants argue plaintiff does not establish commonality because plaintiff has not 24 identified any common policy requiring technicians to work off the clock. Opp’n at 19. 25 Defendants point to written policies expressly prohibiting technicians from working off-the-clock. 26 Id. Defendants thus argue the subclass’s case requires an individualized inquiry about whether 27 an employee took any after-hours customer calls, or whether the employee was directed not to 28 enter time. Id. Although Blackwell does not identify any common policy, Blackwell challenges 1 a system-wide practice: he says, with support, defendants systematically did not pay technicians 2 for the on-call standby time as required under defendants’ policy. Mem. at 6. Blackwell offers 3 expert opinion and other declarations supporting this allegation. Kriegler Decl. ¶ 16; Blackwell 4 Decl. ¶¶ 5–10; Ex. C, Decl. of Tim Brogdon ¶¶ 7–13, ECF No. 43-3; Ex. D, Decl. of Matthew 5 Brown Decl. ¶¶ 6–8, ECF No. 43-3; Ex. E, David Cummings Decl. ¶¶ 5–9, ECF No. 43-3. 6 Defendants also cite Cornn to support their argument that individualized inquiries 7 preclude class certification. See Opp’n at 20 (citing 2005 U.S. Dist. LEXIS 30419, at *17). 8 Cornn is distinguishable on the facts. In Cornn, the court held individualized questions 9 predominated over whether time spent changing into uniforms, shining shoes, and gathering 10 supplies could be counted as hours worked, and, if so, how much time was spent on these 11 activities. 2005 U.S. Dist. LEXIS 30419, at *18. Here, plaintiff argues technicians should be 12 compensated for any time spent on-call, including fielding customer calls. Even a cursory review 13 of the law indicates time spent fielding customer calls should be counted as hours worked. See, 14 e.g., Cal. Code Regs. tit. 8 § 11040(2)(K). Furthermore, defendants set the length of on-call 15 shifts, so it is possible to determine how much time technicians spent on-call. The challenges in 16 Cornn are not insurmountable issues here. 17 The common policy and the evidence of record satisfy the predominance requirement for 18 the on-call subclass. The court next considers whether the on-call subclass satisfies other 19 requirements under Rules 23(a) and (b). 20 B. Rule 23(a)(1) Numerosity 21 The on-call subclass satisfies the numerosity requirement. “While there is no fixed 22 number that satisfies the numerosity requirement, as a general matter, a class greater than forty 23 often satisfies the requirement, while one less than twenty-one does not.” Johnson v. Serenity 24 Transp., Inc., No. 15-CV-02004-JSC, 2018 WL 3646540, at *6 (N.D. Cal. Aug. 1, 25 2018) (quoting Ries v. Ariz. Beverages USA LLC, 287 F.R.D. 523, 526 (N.D. Cal. 2012)). Here, 26 Blackwell claims over 100 persons belong to the on-call subclass. Mem. at 17. Although 27 defendants argue not all technicians served on-call, the court accepts Blackwell’s estimate at this 28 stage. Thus, the numerosity requirement is met. 1 C. Commonality 2 As discussed above in the predominance discussion, the on-call subclass shares a common 3 question of law or fact. 4 D. Typicality 5 Blackwell’s claim is typical of the on-call subclass because he claims he was not paid for 6 the time fielding customer phone calls during his after-hour shifts. Mem. at 18. Defendants do 7 not dispute the typicality of Blackwell’s claims and defenses. See generally Opp’n. The subclass 8 and Blackwell satisfy the typicality requirement. 9 E. Adequacy 10 Blackwell and his class counsel meet the adequacy requirement. Two questions are 11 relevant for the adequacy inquiry: “(1) do the named plaintiffs and their counsel have any 12 conflicts of interest with other class members and (2) will the named plaintiffs and their counsel 13 prosecute the action vigorously on behalf of the class?” Hanlon v. Chrysler Corp., 150 F.3d 14 1011, 1020 (9th Cir. 1998), overruled on other grounds by Wal-Mart, 564 U.S. 338. Although 15 defendants argue Blackwell blames supervisors in the subclass for inadequate review of other 16 subclass members’ timesheets, see Opp’n at 18–19, this does not strike the court as a serious 17 conflict of interest. Blackwell is challenging practices and policies of defendants, not individual 18 supervisors. Even supervisors who neglected to review timesheets may have been subjected to 19 the alleged unlawful practices. The court finds the adequacy requirement is satisfied. 20 F. Superiority 21 Rule 23(b)(3) requires a court to consider four factors in determining whether a class 22 action is the “superior” method of resolution: 23 (A) the class members’ interests in individually controlling the 24 prosecution or defense of separate actions; (B) the extent and 25 nature of any litigation concerning the controversy already 26 begun by or against class members; (C) the desirability or 27 undesirability of concentrating the litigation of the claims in the 28 particular forum; and (D) the likely difficulties in managing a 29 class action. 1 Fed. R. Civ. P 23(b)(3). Regarding the first factor, “the class members’ interests in individually 2 controlling the prosecution or defense of separate actions,” Fed. R. Civ. P. 23(b)(3)(A), when 3 smaller dollar amounts are in controversy, this factor generally favors certification. Zinser v. 4 Accufix Rsch. Inst., Inc., 253 F.3d 1180, 1190–91 (9th Cir.). Resolution of this factor takes into 5 account the policy of incentivizing legitimate claims even when individual damages are modest. 6 Amchem, 521 U.S. at 617. Large, complex claims do not fit so well in a class as do smaller, 7 simpler claims. See Zinser, 253 F.3d at 1190–91. Here, Blackwell asserts relatively small 8 individual claims for underpayment. Mem. at 20. Such small claims do not make individual 9 litigation attractive or sustainable. This factor favors certification. 10 The second factor, the “extent and nature of any litigation concerning the controversy 11 already begun by or against class members,” Fed. R. Civ. P. 23(b)(3)(B), is meant to “assur[e] 12 judicial economy and reduc[e] the possibility of multiple lawsuits.” Zinser, 253 F.3d at 1191 13 (quoting 7A Charles Alan Wright et al., Federal Practice and Procedure § 1780 at 568–70 (2d 14 ed. 1986)). Here the parties have not described, and the court is not aware of any other related 15 litigation. This factor does not stand in the way of certification. 16 The third factor is “the desirability or undesirability of concentrating the litigation” in this 17 forum. Fed. R. Civ. P. 23(b)(3)(C). This is a statewide class action, and thus a non-California 18 forum would appear undesirable. Although it would be possible to consider smaller classes 19 within each federal judicial district in the state, a single class action representing class members 20 across the state asserting state claims in the judicial district in which the defendant is located 21 appears sufficiently desirable. This factor favors certification. 22 The fourth factor weighs the “likely difficulties in managing a class action.” 23 Fed. R. Civ. P. 23(b)(3)(D). Plaintiff indicates he would like to try the case in two phases: the 24 first to determine liability, and the second to determine damages. See Mem. at 13–15. The first 25 phase would rely on defendant’s policy documents as well as witness testimony to determine 26 whether defendants’ practice violated state law. Id. at 5. The second phase would rely more 27 heavily on information gathered through Dr. Kriegler’s analysis determining damages. 28 Defendants have not challenged the manageability of the action. See generally Opp’n. On 1 balance, application of the four factors suggests a class action is the superior means to try the 2 common questions of law and fact that predominate here. 3 The Ninth Circuit also has required district courts to consider alternative means of 4 litigating a proposed class action. See Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1234–35 5 (9th Cir. 1996) (“A class action is the superior method for managing litigation if no realistic 6 alternative exists.”). Individual litigation, joinder, multidistrict litigation, or an administrative or 7 other non-judicial solution may be superior. See 7A Charles A. Wright, et al., Federal Practice & 8 Procedure § 1779 (3d ed. 2005). Because class members here have modest claims, individual 9 litigation is unlikely to present a viable means of recovery. The number of potential plaintiffs, as 10 many as a few hundred, also makes joinder impracticable. 11 Finally, the court considers defendants’ argument that these claims are better suited to 12 labor arbitrations. The lawsuit is not for a violation of the collective bargaining agreement; 13 therefore, a labor arbitration would be inappropriate. See DiMercurio v. Equilon Enterprises 14 LLC, 2021 WL 3885973, at *12 (N.D. Cal. Aug. 30, 2021). 15 The on-call service employee subclass satisfies the superiority requirement. 16 G. Ascertainability 17 Although not raised as an issue by defendants, the court notes the on-call subclass 18 definition poses an ascertainability issue. The use of the language “to the present” in defining the 19 class period appears to “create[] a moving target and presents potential case management 20 problems.” Gomez v. J. Jacobo Farm Lab. Contractor, Inc., 334 F.R.D. 234, 250 (E.D. Cal. 21 2019), modified on reconsideration, 2020 WL 1911544 (E.D. Cal. Apr. 20, 2020), and modified, 22 No 1:15-1489, 2021 WL 431402 (E.D. Cal. Feb. 8, 2021). To cure this ascertainability issue, the 23 court redefines the end date as the date of this certification order. See id. 24 For the reasons above, the court grants the motion to certify Blackwell’s on-call subclass, 25 with the redefined end date. Because his wage statement and terminated employee subclasses are 26 derivative of the on-call subclass, those two subclasses also are certified. 1] IV. MOTION TO STRIKE 2 As noted above, Blackwell moves to strike defendants’ declarations submitted with their 3 | opposition to class certification. See generally Mot. Strike. Because this court does not rely on 4 | those declarations in this order, the motion is denied as moot. 5] V. CONCLUSION 6 The court denies in part the motion for class certification as to rest break subclass and the 7 | minimum wage subclass. 8 The court grants in part the motion for class certification as to the on-call subclass, wage 9 | statement subclass, and terminated employee subclass with the end dates redefined as the filed 10 | date of this order. 11 The court denies the motion to strike as moot. 12 This order resolves ECF Nos. 43 & 47. 13 IT IS SO ORDERED. 14 | DATED: October 17, 2022. 15 CHIEF ED STATES DISTRICT JUDGE 12