Walter v. Leprino Foods Company ( 2023 )

1 2 3 UNITED STATES DISTRICT COURT 4 EASTERN DISTRICT OF CALIFORNIA 5 6 FRED WALTER, an individual, on CASE NO. 2:20-CV-00700-AWI-BAM behalf of himself and all members of the 7 putative class ORDER ON PLAINTIFF’S MOTION 8 Plaintiff, FOR CLASS CERTIFICATION 9 v. (Doc. No. 32) 10 LEPRINO FOODS COMPANY, a Colorado Corporation; LEPRINO 11 FOODS DAIRY PRODUCTS COMPANY, a Colorado Corporation; 12 and DOES 1–100, inclusive, 13 Defendants. 14 15 16 Pending before the Court is Plaintiff Fred Walter’s motion for class certification. Doc. No. 17 32. Charles Bates filed suit against two cheese manufacturing companies, Leprino Foods 18 Company and Leprino Foods Dairy Products Company (collectively, “Leprino”),1 alleging 19 violations of California’s wage and hour laws for unpaid meal and rest period premiums, unpaid 20 minimum wages, untimely wage payments, non-compliant wage statements, and violations of 21 California’s unfair competition law. Doc. Nos. 1 & 7. After the Court dismissed Bates’ request 22 for statutory penalties for his wage statement claim, and for restitution for his unfair competition 23 law claim, Doc. No. 25, Bates filed the instant motion for class certification. Doc. No. 32. Bates 24 thereafter filed a motion to substitute class representative, seeking to substitute Fred Walter in for 25 Bates as the putative class representative, and withdrew his declaration in support of his motion 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. 1 for class certification. Doc. Nos. 40 & 41. Bates’s motion to substitute attached as an exhibit a 2 copy of the proposed Second Amended Complaint (“SAC”). Doc. Nos. 40 & 40-2. In light of 3 Bates’ motion to substitute, the Court continued the filing deadline for Defendants’ class 4 certification opposition to 45 days from service of a ruling on Bates’ motion to substitute. Doc. 5 No. 43. On August 16, 2022, the Court granted Bates leave to amend the operative complaint to 6 substitute Walter in for Bates, allowed Leprino to depose Walter up to an additional seven hours 7 regarding his role as putative class representative without it counting as an additional deposition 8 against Defendants’ ten deposition limit, and ruled that the Court will set the class certification 9 end period to August 29, 2022 if the Court grants class certification in this case. Doc. No. 52. 10 Walter thereafter filed the SAC, Doc. No. 60, and Leprino filed its Answer. Doc. No. 61. On 11 September 30, 2022, Leprino filed its class certification opposition, Doc. No. 56, and on 12 December 29, 2022, Plaintiff filed his class certification reply. Doc. No. 57.2 13 Having reviewed and considered all the briefing and evidence submitted by the parties, the 14 Court will grant in part and deny in part Walter’s motion for class certification. 15 BACKGROUND 16 Based on the parties’ briefing and evidence, the facts for purposes of adjudicating the 17 certification motion are as follows. Gomez v. J. Jacobo Farm Labor Contractor, Inc., 334 F.R.D. 18 234, 242 (E.D. Cal. 2019) (citing In re Hydrogen Peroxide Antitrust Litigation, 552 F.3d 305, 313 19 (3d Cir. 2008) (“Although the district court’s findings for the purpose of class certification are 20 conclusive on that topic, they do not bind the fact-finder on the merits.”)). 21 22 2 Also before the Court is Defendants’ Request for Court Guidance. Doc No. 58. In this filing, Defendants note that they are unsure whether the separate Objections document (Doc. No. 57-2) that Plaintiff filed alongside his Reply 23 brief (Doc. No. 57) will be considered by the Court. If the Court considers the Objections document, Defendants request an opportunity to respond to it to “correct the record.” Because Defendants do not explain what they mean by 24 “correct the record,” the Court interprets Defendant’s Request as a request to file a sur-reply, which the Court will deny. See Camposeco v. Boudreaux, 2021 U.S. Dist. LEXIS 195447, *12 (E.D. Cal. Oct. 7, 2021); Willard v. 25 Neibert, 2016 U.S. Dist. LEXIS 166201, *4 (E.D. Cal. Dec. 1, 2016). To the extent Leprino believes or is arguing that the Objections document is improperly raising new evidence or arguments in a Reply belief, the Court acknowledges 26 that presenting new arguments and evidence in a Reply brief is improper. Therefore, if Walter presented truly new evidence or arguments in the Objections document, the Court will not consider them. JG v. Douglas Cty. Sch. Dist., 27 552 F.3d 786, 805 (9th Cir. 2008). Additionally, to the extent Walter’s Objections document is inviting the Court to strike any of the challenged declarations and testimony presented by Leprino, the Court will decline Walter’s 28 invitation. See Howell v. Leprino Foods Co., 2022 U.S. Dist. LEXIS 34078, *2 (E.D. Cal. Feb. 24, 2022); Perez v. 1 Leprino manufactures and processes cheese and dairy ingredients at its Tracy facility in 2 Tracy, California. The Tracy facility, which is one of several Leprino facilities in the State of 3 California, generally operates twenty-four hours a day, seven days a week, and employs over 300 4 employees. Unlike Leprino’s other facilities, the Tracy facility operates a single production line 5 that runs through the facility’s production departments. Due to the time sensitive nature of 6 making its cheese, Tracy’s production line generally does not stop running except for routine 7 cleaning or emergencies. 8 Work Shift Policies and Practices 9 Each shift for Leprino’s hourly employees is scheduled for approximately 8.5 hours 10 including a 30-minute non-paid period reserved for meals. Leprino’s corporate policy provides 11 that non-exempt hourly employees “must not work while not on the clock or be on the clock 12 (punched in) while not working.” Every hourly employee is required to comply with the same 13 time clock and time punch procedures outlined in Leprino’s Handbook. Leprino’s time clocks 14 record the exact hour and minute of each punch, but for purposes of payroll, the time punches of 15 hourly employees are rounded to the nearest quarter hour, meaning that a time punch at 7:53 a.m. 16 would be rounded up to 8:00 a.m. and a time punch at 7:52 a.m. would be rounded down to 7:45 17 a.m. These employees are subject to discipline if they punch in more than seven minutes before 18 the start of their shifts or punch out more than seven minutes after the end of their shifts because in 19 either situation unauthorized overtime pay would be generated. 20 Leprino tracks its employees’ lateness and absences pursuant to an Attendance Policy. 21 Leprino’s hourly employees are required to punch in by the start of their shifts, and punching in 22 just a minute after their scheduled start times is grounds for discipline. Hourly employees 23 regularly arrive and punch in up to seven minutes before their scheduled start times. Leprino also 24 requires many hourly employees to put on uniforms and protective equipment and to wash their 25 hands and sanitize in a redline room before proceeding with their work assignments. Leprino’s 26 corporate policy requires non-exempt hourly employees to change into and out of uniform while 27 on the clock. Some employees arrive twenty to thirty minutes before their scheduled start times, 28 change into their gear, and then punch in during the seven-minute pre-shift period. 1 Meal and Rest Break Policies and Practices 2 Teamsters Local No. 439 represents Tracy’s hourly employees, and a collective bargaining 3 agreement (“CBA”) primarily governs the terms and conditions of their work. The CBA includes 4 a “meal period” provision that grants each hourly employee “a meal period not more than five (5) 5 hours after the beginning of his or her shift.” 3 Additionally, the CBA includes a “rest period” 6 provision that provides each hourly employee with a “rest period of reasonable duration (15 7 minutes) in accordance with present practices during the first and second half of work of an eight 8 (8) hour shift.”4 If Leprino interrupts an employee with a work-related matter during a meal or 9 rest break, then the employee is entitled to a premium payment, another break, or both. 10 Many hourly employees have break relief, which means other workers come in to take 11 over their duties while they go on break. However, according to several putative class members, 12 hourly employees must still remain on-call during their breaks to attend to quality and production 13 line issues. Due to the importance of the production line’s continuous operation, hourly 14 employees are allegedly required to shift their responsibilities to attend to the production line 15 whenever an issue arises. For example, when excess cheese builds up on the production line, 16 hourly employees must take off the cheese temporarily through a process called “binning” or 17 “bulking off” to prevent spillage onto the floor. In-person, radio, and intercom communications 18 are used to alert employees when immediate assistance is needed. According to several putative 19 class members, hourly employees have to be ready and willing to respond to supervisors at all 20 times, even during meal and rest breaks. 21 3 The CBA’s meal period provision states: 22 Except in emergencies, each employee shall be granted a meal period not more than five (5) hours after the beginning of his or her shift. The meal period shall not be paid time unless the Employer, because of the 23 nature of the work, requires an on-duty meal period, which shall be paid time. Any employee who is required by the Employer to delay his or her meal period more than five (5) hours after the beginning of his or her 24 shift shall be compensated at one and one-half times the rate of pay from the fifth hour until the meal period is taken. The employee will return to straight time after the meal period is taken. Other arrangements for 25 mealtime may be made by mutual agreement between the Employer and the Local Union. 26 4 The CBA’s rest period provision states: All bargaining unit employees shall receive a rest period of reasonable duration (15 minutes) in accordance 27 with present practices during the first and second half of work of an eight (8) hour shift. The Employer shall not schedule an employee for a rest period during the first hour of work. When an employee is told or 28 scheduled to work nine (9) or more hours he or she shall receive an additional rest period between the eighth 1 LEGAL STANDARD 2 A class action is a procedural mechanism that allows for representative litigation. 3 Amchem Prods. v. Windsor, 521 U.S. 591, 613-19 (1997). This means that one or more class 4 members may “litigate on behalf of many absent class members, and those class members are 5 bound by the outcome of the representative’s litigation.” 1 William Rubenstein, Newberg on 6 Class Actions § 1:1 (5th ed. 2012) [hereinafter, “Newberg on Class Actions”] (citing Supreme 7 Tribe of Ben Hur v. Cauble, 255 U.S. 356, 363 (1921)). “The class action is ‘an exception to the 8 usual rule that litigation is conducted by and on behalf of the individual named parties only.’” 9 Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013) (quoting Califano v. Yamasaki, 442 U.S. 682, 10 700–01 (1979)). 11 Class actions are governed by Rule 23 of the Federal Rules of Civil Procedure, which 12 imposes a two-step test for deciding whether a class may be certified. Under the first step, the 13 court determines whether the moving party has established four perquisites: 14 (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 15 representative parties are typical of the claims or defenses of the class; and (4) the 16 representative parties will fairly and adequately protect the interests of the class. 17 Fed. R. Civ. P. 23(a)(1)–(4). If the prerequisites of Rule 23(a) are met, the court considers 18 whether the proposed class action meets at least one of the three provisions of Rule 23(b). Fed. R. 19 Civ. P. 23(b). Relevant here, Rule 23(b) states that a class action may be maintained if “the court 20 finds that the questions of law or fact common to class members predominate over any questions 21 affecting only individual members, and that a class action is superior to other available methods 22 for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). 23 A party moving to certify a class action bears the burden of affirmatively demonstrating 24 compliance with Rule 23. Comcast, 569 U.S. at 33. “The Rule ‘does not set forth a mere pleading 25 standard,’” but instead demands the moving party establish through evidentiary proof that the 26 proposed class action satisfies the prerequisites of Rule 23(a) and one of the provisions of Rule 27 23(b). Id. (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011)). Courts generally 28 require the moving party to demonstrate by a preponderance of the evidence that class certification 1 is appropriate. Newberg on Class Actions § 7:21 (citing cases, including Martin v. Sysco Corp., 2 325 F.R.D. 343, 354 (E.D. Cal. 2018) (“While Rule 23 does not specifically address the burden of 3 proof to be applied, courts routinely employ the preponderance of the evidence standard.”)). 4 To ensure the moving party has “satisfied” its burden, the district court must conduct a 5 “rigorous analysis.” Comcast, 569 U.S. at 33. Because the “class determination generally 6 involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff’s 7 cause of action,” this rigorous analysis may include “prob[ing] behind the pleadings” and “overlap 8 with the merits of the plaintiff’s underlying claim.” Id. at 33–34. Yet, “‘[n]either the possibility 9 that a plaintiff will be unable to prove his allegations, nor the possibility that the later course of the 10 suit might unforeseeably prove the original decision to certify the class wrong, is a basis for 11 declining to certify a class which apparently satisfies’ Rule 23.” Sali v. Corona Reg’l Med. Ctr., 12 909 F.3d 996, 1004−05 (9th Cir. 2018) (quoting Blackie v. Barrack, 524 F.2d 891, 901 (9th Cir. 13 1975)). Ultimately, the decision to grant or deny a motion for class certification under Rule 23 is 14 committed to the broad discretion of the trial court. Bateman v. Am. Multi–Cinema, Inc., 623 15 F.3d 708, 712 (9th Cir. 2010). 16 DISCUSSION 17 A. Class Definition 18 Rule 23 implicitly requires the proposed class to be ascertainable by reference to objective 19 criteria, at least for class certification under Rule 23(b)(3). See Marcus v. BMW of North 20 America, LLC, 687 F.3d 583, 592-93 (3d Cir. 2012); Jones v. ConAgra Foods, Inc., 2014 U.S. 21 Dist. LEXIS 81292, 2014 WL 2702726, *8 (N.D. Cal. 2014); Lilly v. Jamba Juice Co., 308 F.R.D. 22 231, 236 (N.D. Cal. 2014); Newberg on Class Actions § 3:1. While courts have “ascribe[d] 23 widely varied meanings” to the term “ascertainability,” Briseno v. ConAgra Foods, Inc., 844 F.3d 24 1121, 1124 (9th Cir. 2017), there are three linguistic formulations commonly used to express the 25 test for definiteness: 26 [F]irst, that the class must be “precise, objective, and presently ascertainable”; second, that the class must be “adequately defined and clearly ascertainable”; and 27 third, that the class can be ascertained “by reference to” or “based on” “objective 28 criteria.” 1 2 The ascertainability requirement “protects absent plaintiffs in two ways — by enabling 3 notice to be provided where necessary and by defining who is entitled to relief; and a definable 4 class protects defendants by enabling a final judgment that clearly identifies who is bound by it.” 5 Id. at § 3:1. The movant for class certification bears the burden of sufficiently pleading a 6 sufficiently ascertainable class. See Whitaker v. Bennett Law, PLLC, 2016 U.S. Dist. LEXIS 7 122873, 2016 WL 4595520, at *1 (S.D. Cal. 2016); Brazil v. Dell Inc., 585 F. Supp. 2d 1158, 8 1167 (N.D. Cal. 2008); Newberg on Class Actions § 3:3. While the ascertainability requirement 9 provides for an “objectively ascertainable” class, the Ninth Circuit does not require that the 10 proposed class also be “administratively ascertainable.” Briseno, 844 F.3d at 1123-26. 11 “Administrative feasibility means that identifying class members is a manageable process that 12 does not require much, if any, individual factual inquiry.” Newberg on Class Actions § 3:3. 13 Walter seeks certification of the following class: 14 All non-exempt hourly workers who are currently employed, or formerly have been employed, as non-exempt hourly employees at Leprino’s Tracy plant in Tracy, 15 California, at any time within four years prior to the filing of the original complaint until August 29, 2022.5 16 17 The contours of the class are ascertainable based on objective criteria, namely, whether 18 someone was employed by Leprino as a non-exempt hourly employee at the Tracy facility. 19 Leprino does not contest that the proposed class is ascertainable. Accordingly, the Court finds that 20 the proposed class is ascertainable. 21 B. Numerosity 22 Pursuant to Rule 23(a)(1), a class action is maintainable only if “the class is so numerous 23 that joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). In general, courts find 24 the numerosity requirement satisfied when a class includes at least 40 members. Pena v. Taylor 25 Farms Pac., Inc., 305 F.R.D. 197, 213 (E.D. Cal. 2015) (citing Rannis v. Recchia, 380 F. App'x 26 646, 651 (9th Cir. 2010)); Collins v. Cargill Meat Sols. Corp., 274 F.R.D. 294, 300 (E.D. Cal. 27 28 5 The Court ruled that it will set the class certification end period to August 29, 2022, as agreed to by Plaintiff, if class 1 2011). Based on Walter’s representations, the proposed class includes at least 300 individuals. 2 This satisfies the numerosity requirement of Rule 23(a)(1). See Gomez, 334 F.R.D. at 251 3 (explaining that an exact number of class members is not required for certification if it is 4 reasonable to believe that joinder would be impracticable); Collins, 274 F.R.D. at 300. 5 Leprino contends that the proposed class is not sufficiently numerous because Plaintiff 6 failed to identify any putative class members that experienced an on-duty meal period or a late 7 meal period due to the policies and practices alleged. The Court disagrees. Walter presented 8 evidence that some of the hourly employees’ meal breaks were untimely or short, see Doc. No. 32- 9 1 at 20-21; Doc. No. 32-6 at 11, 15-16; Doc. No. 57 at 42-47, and that class members were 10 required to attend to their duties and the production line during meal and rest periods. See Doc. 11 Nos. 32-1 at 21-26; Doc. No. 57 at 51-63. Accordingly, the Court finds the numerosity 12 requirement satisfied. 13 C. Commonality 14 Pursuant to Rule 23(a)(2), a class action is maintainable only if “there are questions of law 15 or fact common to the class.” Fed. R. Civ. P. 23(a)(2). To meet the commonality requirement, 16 class claims must be based on a “common contention . . . capable of classwide resolution.” Wal- 17 Mart Stores, 564 U.S. at 350. This means that determination of the “truth or falsity” of that 18 contention “will resolve an issue that is central to the validity of each one of the claims in one 19 stroke.” Id. Certification does not turn on “the raising of common ‘questions’—even in droves— 20 but, rather the capacity of a classwide proceeding to generate common answers apt to drive the 21 resolution of the litigation.” Id. (quoted source omitted). In other words, not “every question of 22 law or fact must be common to the class; all that Rule 23(a)(2) requires is ‘a single significant 23 question of law or fact.’” Abdullah v. U.S. Sec. Assocs., Inc., 731 F.3d 952, 957 (9th Cir.2013) 24 (emphasis omitted) (quoting Mazza v. Am. Honda Motor Co., 666 F.3d 581, 589 (9th Cir. 2012)). 25 The commonality requirement has similarities with and serves as the foundation to the 26 commonality-predominance requirement of Rule 23(b)(3). See Newberg on Class Actions § 3:27 27 (explaining that Rule 23(b)(3)’s commonality-predominance requirement “obviously builds on” 28 Rule 23(a)(2)’s commonality requirement). Because of the overlap between these two 1 requirements, the Court will analyze Rule 23(a)(2)’s commonality requirement below when the 2 Court analyzes Rule 23(b)(3)’s commonality-predominance requirement. See Gomez, 334 F.R.D. 3 at 251. 4 D. Typicality 5 Pursuant to Rule 23(a)(3), a class action may be maintained only if the “claims or defenses 6 of the representative parties are typical of the claims or defenses of the class.” Fed. R. Civ. P. 7 23(a)(3). “[T]ypicality determines whether a sufficient relationship exists between the injury to 8 the named plaintiff and the conduct affecting the class so that the court may properly attribute a 9 collective nature to the challenged conduct.” Newberg on Class Actions § 3:29. The test for 10 typicality is (1) “whether other members have the same or similar injury,” (2) “whether the action 11 is based on conduct which is not unique to the named plaintiffs,” and (3) “whether other class 12 members have been injured by the same conduct.” Wolin v. Jaguar Land Rover N. Am., LLC, 13 617 F.3d 1168, 1175 (9th Cir. 2010) (citations omitted). 14 Walter has alleged and produced evidence showing that he and other putative class 15 members suffered the same or similar injuries. For example, Walter presented evidence that his 16 and other class members’ meal breaks were not timely, that they were subjected to Leprino’s same 17 rounding policies, and that they were required to attend to the production line and other duties 18 during meal and rest break periods. Moreover, Walter has alleged and produced evidence showing 19 that he and other putative class members were injured by Leprino’s same conduct—i.e., the 20 alleged on-call breaks, Leprino’s time punch rounding policies, pre- and post-shift duties, and 21 alleged failures to provide premium pay and additional breaks. Walter has not made claims based 22 on conduct that is unique to him, but instead raises claims based on Leprino’s policies and 23 practices as they apply to the putative class. Thus, Walter’s allegations and proffered evidence 24 satisfy the typicality requirement. 25 E. Adequacy of Representation 26 Pursuant to Rule 23(a)(4), a class action is maintainable only if the “the representative 27 parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). The 28 term “parties” refers to both the class representative and class counsel. In re Conseco Life Ins. Co. 1 LifeTrend Ins. Sales & Mktg. Litig., 270 F.R.D. 521, 531 (N.D. Cal. 2010). The Ninth Circuit 2 tests the adequacy as follows: “(1) do the named plaintiffs and their counsel have any conflicts of 3 interest with other class members and (2) will the named plaintiffs and their counsel prosecute the 4 action vigorously on behalf of the class?” Ellis v. Costco Wholesale Corp., 657 F.3d 970, 985 5 (9th Cir. 2011) (quoted source omitted). “Adequate representation depends on, among other 6 factors, an absence of antagonism between representatives and absentees, and a sharing of interest 7 between representatives and absentees.” Id. The standard for adequacy splits into two prongs: 8 adequacy of the proposed class representative and adequacy of the attorneys seeking appointment 9 as class counsel. Newberg on Class Actions § 3:54. 10 1. Adequacy of Class Representative 11 The Court finds that Walter is an adequate class representative. First, despite Leprino’s 12 contentions to the contrary, Walter is not conflicted. Walter declares that he does not have any 13 conflicts with any of the other employees at Leprino and that he never intends to. Doc. No. 40-3 14 at 2, ¶ 2. His stated interest is to help the other employees correct the alleged legal wrongs that 15 Leprino committed. Id. Walter further declares that he will always put the best interests of the 16 other employees first while performing his duties as a potential leader in this case, id. at 2, ¶ 3, and 17 that he will work with his attorneys to help achieve the best result possible for the class. Id. at 4, 18 ¶ 8. Plaintiff’s primary interests also do not conflict with the interests of the supervisors and 19 foremen who are putative members of the class. Simply because they implemented Leprino’s 20 allegedly unlawful policies does not mean that Plaintiff has assigned partial responsibility for 21 wage and hour violations to them. There is no indication that Plaintiff is placing legal blame on 22 the supervisors and foremen. Cf. Hughes v. WinCo Foods, 2012 WL 34483, at *7 (C.D. Cal. Jan. 23 4, 2012) (finding an adequacy conflict where the class representatives “assign[ed] partial 24 responsibility for labor law violations” to members of the proposed class). This is not surprising 25 because there is no indication that the supervisors and foremen were responsible for creating 26 Leprino’s facility-wide policies. Walter is advancing claims that attack Leprino’s facility-wide 27 policies, and those policies allegedly violated the supervisors and foremen’s’ employment rights in 28 the same way that they affected the rights of Walter and the rest of the class. Thus, it is not 1 evident to the Court that they are conflicted with the supervisors and foremen. See Pena v. Taylor 2 Farms Pac., Inc., 305 F.R.D. 197, 215 (E.D. Cal. 2015) (finding no adequacy-conflict where the 3 employer’s policies universally affected all members of the class, including supervisors who 4 implemented the policies but were also putative members of the class). See also J.D. v. Azar, 925 5 F.3d 1291, 1317 (D.C. Cir. 2019) (“[C]ourts have been reluctant to find the class representatives 6 inadequate even if some class members have an explicit desire to maintain the status quo.”) 7 (citations omitted); Ruggles v. WellPoint, Inc., 272 F.R.D. 320, 338 (N.D.N.Y. 2011) (holding 8 that representatives were adequate in wage-and-hour lawsuit although some of the employee class 9 members did not share the goals of the litigation, particularly because “[a]dequacy is not 10 undermined where the opposed class members’ position requires continuation of an allegedly 11 unlawful practice.”). 12 Furthermore, Walter has performed several tasks in his potential role as class leader. He 13 met with counsel to discuss the facts of the case, reviewed documents, maintained 14 communications with counsel regarding the status of the lawsuit, provided counsel with any 15 information or documents they requested, and provided several hours of deposition testimony 16 regarding his experience at Leprino. Doc. No. 40-3 at 3, ¶ 5. He also offered himself for another 17 deposition by Defendants to discuss his role as putative class representative. Although Walter has 18 not prosecuted this case from its inception, he possesses sufficient knowledge of the case to meet 19 the adequacy standard. See Newberg on Class Actions § 3:67 (5th ed.) (“[C]ourts have similarly 20 held that while a plaintiff must have some knowledge of the litigation and facts of the case, a class 21 representative need only possess a minimal degree of knowledge necessary to meet the adequacy 22 standard.”) (quoting New Directions Treatment Services v. City of Reading, 490 F.3d 293, 313 23 (3d Cir. 2007) and citing other federal circuit cases). Thus, Walter satisfies the adequacy of 24 representation requirement. 25 2. Adequacy of Class Counsel 26 The Court finds that Walter’s counsel are adequate representatives. The Parris Law Firm 27 has certified numerous wage-and-hour class actions and has trial experience in the state of 28 California. Doc. No. 32-5 at 2, ¶¶ 3−5. This Court has also recognized The Parris Law Firm as 1 adequate representatives in other wage-and-hour class action lawsuits against Leprino. See Perez 2 v. Leprino Foods Co., 2021 U.S. Dist. LEXIS 2165, *43 (E.D. Cal. Jan. 6, 2021); Vasquez v. 3 Leprino Foods Co., 2020 U.S. Dist. LEXIS 56425, *35 (E.D. Cal. Mar. 30, 2020). The Court also 4 finds that The Parris Law Firm appears to be willing and able to commit sufficient resources to 5 representing the proposed class. Accordingly, the adequacy of class counsel is satisfied in this 6 case. 7 F. Commonality-Predominance 8 The commonality and predominance requirement of Rule 23(b)(3) asks whether the class 9 members’ interests are “sufficiently cohesive to warrant adjudication by representation.” Amchem 10 Prods. v. Windsor, 521 U.S. 591, 623 (1997). The inquiry “logically entails two steps”: first, 11 whether the issues in the case are individual or common; and, second, whether the common issues 12 predominate over the individual issues. Newberg on Class Actions § 4:50. 13 As for the first step, an individual issue is one where “the members of a proposed class will 14 need to present evidence that varies from member to member.” Tyson Foods, Inc. v. Bouaphakeo, 15 577 U.S. 442, 453 (2016) (citing Newberg on Class Actions § 4:50). By contrast, a common issue 16 is one either where “the same evidence will suffice for each member to make a prima facie 17 showing,” id., or, similarly, where the issue is “susceptible to generalized, class-wide proof.” In re 18 Nassau County Strip Search Cases, 461 F.3d 219, 227 (2d Cir. 2006). 19 As for the second step, common issues likely will not predominate if “a great deal of 20 individualized proof” would need to be introduced to address most or all of the elements of a 21 claim, Gomez, 334 F.R.D. at 256 (citing Klay v. Humana, Inc., 382 F.3d 1241, 1255 (11th Cir. 22 2004)), or “a number of individualized legal points” would need to be established after common 23 questions were resolved, id. (citing Klay, 382 F.3d at 1255), or “the resolution of . . . [an] 24 overarching common issue breaks down into an unmanageable variety of individual legal and 25 factual issues.” Id. (quoting Cooper v. Southern Co., 390 F.3d 695, 722 (11th Cir. 2004)). By 26 contrast, common questions likely will predominate if “individual factual determinations can be 27 accomplished using computer records, clerical assistance, and objective criteria — thus rendering 28 unnecessary an evidentiary hearing on each claim,” id. (citing Smilow v. Southwestern Bell 1 Mobile Systems, Inc., 323 F.3d 32, 40 (1st Cir. 2003)), or “when adding more plaintiffs to the 2 class would minimally or not at all affect the amount of evidence to be introduced.” Id. (citing 3 Newberg on Class Actions § 4:50). A finding of predominance will generally not be defeated 4 merely because there is a need to make individualized damage determinations. See Just Film, Inc. 5 v. Buono, 847 F.3d 1108, 1121 (9th Cir. 2017); Leyva v. Medline Indus. Inc., 716 F.3d 510, 514 6 (9th Cir. 2013). 7 Here, Walter presents four sets of common questions—one set concerning his pre-shift 8 rounding claim, one set concerning his untimely meal break claim, one set concerning his on-call 9 break claims, and one set concerning his on-duty meal period claim. The Court will undertake the 10 commonality-predominance inquiry by analyzing Walter’s claims, and his theories of liability for 11 each, in turn. Erica P. John Fund, Inc. v. Halliburton Co., 563 U.S. 804, 809 (2011) (“Considering 12 whether questions of law or fact common to class members predominate begins, of course, with 13 the elements of the underlying cause of action.”); Jimenez v. Allstate Ins. Co., 765 F.3d 1161, 14 1165−66 (9th Cir. 2014) (“Whether a question will drive the resolution of the litigation necessarily 15 depends on the nature of the underlying legal claims that the class members have raised.”). 16 1. Pre-shift Rounding Claim 17 Walter argues that Leprino’s time punch rounding and attendance policies were common 18 across the putative class, and that over a period of time they improperly shaved off time that 19 employees spent working before the start of their shifts. In response, Leprino argues that these 20 policies did not improperly round out compensable time because the employees were not required 21 to work and were not under Leprino’s control during the time leading up to the start of their shifts. 22 Under California law, an employer is permitted to adopt a rounding policy so long as it is 23 “fair and neutral on its face and ‘it is used in such a manner that it will not result, over a period of 24 time, in failure to compensate the employees properly for all the time they have actually worked.’” 25 See’s Candy Shops, Inc. v. Superior Court, 210 Cal. App. 4th 889, 907 (2012) (quoting 29 C.F.R. 26 § 785.48); see also Sali, 909 F.3d at 1009; Corbin v. Time Warner Entm’t-Advance/Newhouse 27 P'ship, 821 F.3d 1069, 1076 (9th Cir. 2016). California’s compensable-time standard 28 encompasses two categories of time: First, time is compensable if an employee is “under the 1 control” of his or her employer, whether or not he or she is engaging in work activities, such as by 2 being required to remain on the employer’s premises or being restricted from engaging in certain 3 personal activities. Sali, 909 F.3d at 1010 (citing Morillion v. Royal Packaging Co., 22 Cal. 4th 4 575 (Cal. 2000) and Aguilar v. Assn. of Retarded Citizens, 234 Cal. App. 3d 21 (Ct. App. 1991)); 5 see also Frlekin v. Apple Inc., 8 Cal. 5th 1038, 1046 (2020). Second, time is compensable if an 6 employee “is suffered or permitted to work, whether or not required to do so.” Sali, 909 F.3d at 7 1010 (citing Morillion, 995 P.2d at 578). This may include “time an employee is working but is 8 not subject to an employer’s control,” such as “unauthorized overtime, which the employer has not 9 requested or required.” Id. (citing Morillion, 995 P.2d at 584-85); see also Frlekin, 8 Cal. 5th at 10 1046. 11 Here, Walter does not argue that Leprino’s rounding policy alone was unfair or not neutral 12 on its face. Rather, Walter argues that when the rounding policy was implemented alongside 13 Leprino’s attendance and pre-shift policies, it rounded the employees’ compensable time against 14 the employees and never for them. According to Walter, the employees’ compensable time 15 included the up-to-seven minutes of time spent clocked in before the start of their shifts and the 16 time they spent working before they clocked in. Walter asserts that during both of these times the 17 employees were restricted from pursuing their own purposes because they had to comply with 18 Leprino’s pre-shift requirements—such as donning their uniforms, completing sanitation 19 procedures, and traveling to pre-shift meeting areas—which collectively took at least fourteen 20 minutes to complete. Doc. No. 32-1 at 31-32; Doc. No. 57 at 27-29. 21 Leprino does not deny that hourly employees regularly clocked in up to seven minutes 22 before—and not after—the start of their shifts, and that Leprino regularly rounded out these up-to- 23 seven minutes of time for payroll purposes. However, Leprino denies that these up-to-seven 24 minutes of time were compensable under California law in the first instance. Leprino also denies 25 Walter’s contention that the time employees spent allegedly working before they clocked in was 26 compensable. According to Leprino, the employees were not required to work nor under 27 Leprino’s control during the time leading up to the start of their shifts. 28 With respect to Walter’s allegations that the putative class acquired compensable time 1 before clocking in, the Court is not convinced that Walter’s proposed common questions would 2 predominate over individualized inquiries. Leprino’s corporate policy expressly prohibited non- 3 exempt employees from working “while not on the clock.” Doc. No. 56 at 18 (citing Doc. No. 33- 4 1 at 189, 225, and 262). Additionally, Leprino’s corporate policy provided that “[n]on-exempt 5 employees who are required to wear uniforms must change into and out of their uniform while on 6 the clock – this means that you will clock in prior to putting on your uniform at the beginning of 7 your shift and will not clock out at the end of your workday until you have changed out of your 8 uniform.” Id. at 19 (citing Doc. No. 33-1 at 190, 226, and 263) (emphasis added). Although 9 Walter presents evidence that some employees arrived at the facility “usually about twenty to 10 thirty minutes before their start times,” Doc. No. 32-1 at 17, and “put on their uniforms before 11 clocking-in,” id. at 20 n.10, this evidence does not show that Leprino’s rounding, time punch, and 12 attendance policies are common evidence that “will suffice for each member to make a prima facie 13 showing.” Tyson Foods, 577 U.S. at 453. Rather, the evidence shows that the experiences of 14 employees before they clocked in for their shifts “varie[d] from member to member.” Id. For 15 example, several employees, including Plaintiff’s witness, stated that when they arrived early to 16 the facility before their shifts, they simply waited in their cars or the break room until they could 17 clock in. See Doc. No. 56-1 at 144-55 (Anaya Dep. 94:12-95:13, 97:6-20, 117:9-18), 329 18 (Chhann Dep. 152:4-9), and 199-200 (Guaydacan Dep. 102:6-13, 103:10-21); see also Doc. No. 19 56-2 at 19 (Hurst Dec. ¶ 3) and 83 (Yates Dec. ¶ 4). Additionally, many employees, including 20 Plaintiff’s witnesses, stated that they clocked in before they changed into their uniforms and 21 completed sanitation procedures. See Doc. No. 56-1 at 200-201 (Guaydacan Dep. 103:19-104:8), 22 154 (Anaya Dep. 116:14-19), 265 (Rosales Dep. 171:13-18), 46 (French Dep. 117:5-8), and 305 23 (DeWalt Dep. 208:10-15); see also Doc. No. 56-2 at 13-14 (Gutierrez Dec. ¶¶ 3, 4), 54 (Renteria 24 Dec. ¶¶ 6-7), 83 (Yates Dec. ¶ 4), 8-9 (Alvarez Dec. ¶ 5), 63 (Travers Dec. ¶ 4). Several 25 employees also stated that they were aware of Leprino’s policy to change into uniforms while on 26 the clock but chose to arrive early and change into their uniforms anyways before clocking in. See 27 Doc. No. 56-1 at 147 (Anaya Dep. 97:6-20); see also Doc. No. 56-2 at 19 (Hurst Dec. ¶ 3) and 83 28 (Yates ¶ 4). Furthermore, several employees, including Plaintiff’s witnesses, stated that they were 1 never asked to perform any work off the clock. See Doc. No. 56-1 at 109 (Allan Dep. 77:10-13), 2 211 (Guaydacan Dep. 149:11-13, 149:23-150:1), 277 (Rosales Dep. 196:16-25), 54 (French Dep. 3 143:5-14), 334 (Chhann Dep. 167:7-22), 156 (Anaya Dep. 118:11-14), and 85 (Smith Dep. 4 206:12-16). In light of this evidence, the Court finds that the question of whether employees were 5 working or under Leprino’s control before they clocked in is not subject to common proof that 6 would predominate over individualized inquiries. 7 Furthermore, with respect to the issue of whether putative class members acquired 8 compensable time from the time they spent clocked in up to seven minutes before the start of their 9 shifts, the Court also finds that common questions do not predominate over individualized 10 inquiries. Although Leprino acknowledges that employees regularly clocked in up to seven 11 minutes before the start of their shifts, Leprino did not expressly require them to do so; Leprino 12 simply required them to be clocked in at the start of their shifts. Doc. No. 56-2 at 44; Doc. No. 13 32-2 at 380-81. Additionally, Plaintiff has not provided sufficient common evidence indicating a 14 reason why all putative class members had to begin their pre-shift requirements before the start of 15 their shifts. Leprino expected employees with pre-shift meetings to be in uniform, with whatever 16 personal protective equipment they were required to wear, when they arrived at their pre-shift 17 meetings by 10 minutes after their scheduled start time.6 Doc. No. 56-2 at 36 (McDaniel Dec. ¶ 18 21); see also Doc. No. 56 at 40-41. While Walter argues that pre-shift requirements took more 19 than 10 minutes to complete, he has not sufficiently shown that this was common or required for 20 all putative class members. Some hourly employees did not have to wear uniforms, and if they 21 did, the type of uniform and personal protective equipment they were required to wear were not all 22 the same. Doc. No. 56-2 at 25 and 73-74. Additionally, some employees did not have pre-shift 23 meetings until well beyond ten minutes after the start of their shifts, id. at 63-64 and 78, and some 24 did not have pre-shift meetings at all, meaning they did not have to complete the pre-shift 25 26 6 Walter argues that pre-shift meetings began at the start time of shifts, citing as authority a series of statements by individual employees. Doc. No. 32-1 at 14 n.3. However, at least two of these individuals stated during their 27 depositions that pre-shift meetings began ten minutes after the start of shifts. See Doc. No. 56 at 41; see also Doc. No 56-1 at 544 (Austin Dep. 183:7-11) and 148 (Anaya Dep. 98:1-5). Additionally, Leprino provided a lengthy series of 28 statements by individual employees that pre-shift meetings began ten minutes after their scheduled shift start times. 1 requirements to attend these meetings. Id. at 25 and 73-74; Doc. No. 56-1 at 102. 2 For the portion of the putative class that had to don uniforms and attend pre-shift meetings 3 ten minutes after the start of their shifts, the evidence shows that the time estimates to complete 4 these pre-shift duties varied significantly by individual. Walter provides testimony from 5 individuals stating that their pre-shift requirements collectively took at least fourteen-to-fifteen 6 minutes to complete.7 Doc. No. 32-1 at 17-19. However, some of the time estimates of Plaintiff’s 7 own witnesses indicate that less time was needed to complete pre-shift tasks. For example, despite 8 Walter’s contention that the process of changing into uniform took “up to an additional fifteen 9 minutes to complete,” Walter’s briefing acknowledges that it took David Anaya approximately 10 seven minutes and Michael Dewalt approximately five minutes. Doc. No. 32-1 at 18 n.8. 11 Additionally, despite Walter’s contention that the sanitation process “takes approximately five 12 minutes,” Walter’s briefing acknowledges that it took David Anaya and Tony Rosales 13 approximately two-to-three minutes. Id. at 19 n.9. Furthermore, Leprino submitted testimony 14 from employees stating that their pre-shift requirements took much less than what Walter 15 suggests. Doc. No. 56 at 20. For example, Lisethe Gutierrez and Roberto Renteria testified that 16 the entire process of grabbing a uniform, putting it on, going through the redline room, and getting 17 to the pre-shift meeting took approximately ten minutes or less. Doc. No. 56-2 at 13-14, 54. 18 It is also unclear whether all putative class members were under Leprino’s control or 19 actually working during the up-to-seven minutes of time they spent clocked in before the start of 20 their shifts. Walter does not argue or present evidence that Leprino prohibited these individuals 21 during the seven-minute window from clocking out, leaving the premises, and clocking back in by 22 the start of their shifts. Additionally, evidence shows that several employees clocked in and spent 23 the time up until the start of their shifts as they pleased, such as by chatting with others, heating up 24 their breakfast, getting coffee, going to the restroom, or simply waiting for their pre-shift meetings 25 to commence. Doc. No. 56-2 at 25; Doc. No. 56-1 at 146-48. For example, Plaintiff’s own 26 witness David Anaya stated he was ready and present at his pre-shift meeting “two or three 27 7 Walter also cites portions of the collective bargaining agreements to show that pre-shift duties took at least fourteen 28 minutes to complete. Doc. No. 32-1 at 19. However, these time estimates were not made in the context of pre-shift 1 minutes before 7:00 o’clock” and waited until the meeting began at 7:10 a.m. Doc. No. 56-1 at 2 146-48. According to Anaya, Leprino provided employees “ten minutes to get to their meeting,” 3 but he chose to not use that time and instead used his own time to arrive at the 7:10 a.m. meeting a 4 few minutes before his shift even started. Id. at 146 (“Me, I am in my [pre-shift meeting] at two or 5 three minutes before 7:00 o’clock. But I don’t use the other people’s [ten minutes of] time. I use 6 my time. And I just go with my time.”). 7 The evidence and statements above evince individual actions by putative class members, 8 and indicate that the Court would need to make individualized inquiries to determine whether the 9 putative class acquired compensable time from the time they spent clocked in up to seven minutes 10 before the start of their shifts. See Meek v. SkyWest, Inc., 562 F. Supp. 3d 488, 497 (N.D. Cal. 11 2021) (finding insufficient commonality where the court would have to determine if each class 12 member actually worked or was under the employer’s control during the rounded period); Wilson 13 v. Pactiv LLC, 2021 U.S. Dist. LEXIS 234111, *19 (C.D. Cal. Dec. 3, 2021) (same). Although 14 some common questions exist regarding whether Leprino’s rounding, time punch, and attendance 15 policies resulted in a failure to compensate employees for all the time they actually worked, they 16 do not predominate over the individualized inquiries discussed above. 17 2. Untimely and Short Meal Break Claim 18 “Under California law, employers must generally provide employees with one 30-minute 19 meal period that begins no later than the end of the fifth hour of work[.]” Donohue v. AMN 20 Servs., LLC, 11 Cal. 5th 58, 61 (2021) (citing Lab. Code § 512(a)). If an employer does not 21 provide an employee with a compliant meal period, then “the employer shall pay the employee 22 one additional hour of pay at the employee’s regular rate of compensation for each workday that 23 the meal … period is not provided.” Id. (citing Lab. Code, § 226.7(c)). The meal periods must be 24 full and timely whenever they are required, and even a minor infringement of the meal period 25 triggers the premium pay obligation. Id. at 68. Accordingly, “employers cannot engage in the 26 practice of rounding time punches—that is, adjusting the hours that an employee has actually 27 worked to the nearest preset time increment—in the meal period context.” Id. at 61. “The practice 28 of rounding time punches for meal periods is inconsistent with the purpose of the Labor Code 1 provisions and the IWC wage order.” Id. at 68. 2 “If time records show noncompliant meal periods, then a rebuttable presumption of 3 liability arises.” Id. at 78; see also Estrada v. Royalty Carpet Mills, Inc., 76 Cal. App. 5th 685, 4 723 (2022) (applying Donohue’s “rebuttable presumption” standard in class certification context); 5 Santillan v. Verizon Connect, Inc., 2022 U.S. Dist. LEXIS 182405, *38 (S.D. Cal. June 13, 2022) 6 (“Donohue’s rebuttable assumption does play an important role in this Court’s consideration of 7 class-certification under Rule 23.”). The employer then “may rebut the presumption” with 8 evidence of proper compensation or that the employees had in fact been provided compliant meal 9 periods during which they chose to work. Donohue, 11 Cal. 5th at 77-78; Estrada, 76 Cal. App. 10 5th at 726 (employer may rebut presumption in class certification context by showing that “a 11 significant number of employees voluntarily chose to skip their meal breaks, creating 12 individualized issues of liability”); Santillan, 2022 U.S. Dist. LEXIS 182405, at *38. 13 Here, Walter argues that the following is a common question that will drive the resolution 14 of the litigation: whether Leprino’s meal period timekeeping system resulted in untimely or short 15 meal periods for the putative class members in violation of California law. In support of this 16 argument, Walter provides evidence of Leprino’s time punch rounding policies, putative class 17 member testimony, and data findings of Dr. Brian Kriegler. In response, Leprino argues that 18 Walter’s commonality argument fails because he has not submitted sufficient evidence showing 19 that Leprino systematically provided the putative class members with meal periods after their fifth 20 hour of work from the start of their shifts. Additionally, Leprino asserts that the putative class 21 member testimony submitted by Plaintiff concerning late meal breaks has nothing to do with 22 Leprino’s rounding policy. Leprino also argues that Kriegler’s methodology is flawed because it 23 assumes any time rounded against an employee was uncompensated. 24 Although the Court agrees with Leprino that the untimely meal break testimony of 25 Plaintiff’s witnesses is unpersuasive,8 the data findings of Kriegler create a rebuttable presumption 26 8 The testimony of Michael DeWalt and Pearla Baeza indicate that they were sometimes unable to take a meal break 27 because of issues that occurred during their shift, not because of Leprino’s rounding policy. Doc. No. 32-4 at 17; Doc. No. 32-2 at 511. Additionally, the testimony of Ricardo Guaydacan indicates that sometimes his meal break was late 28 not because of the rounding policy but because of a lack of break relief. Doc. No. 32-2 at 472. The cited testimony of 1 of Leprino’ liability for improperly rounding meal period time punches. In Donohue, the 2 employer’s time records showed 40,110 short meal periods and 6,651 delayed meal periods that 3 did not show up as short or delayed in the employer’s timekeeping system because of rounding. 4 Donohue, 11 Cal. 5th at 79. The Donohue Court stated that the introduction of these time records 5 would trigger the rebuttable presumption that the employer improperly used rounded time punches 6 to track potentially noncompliant meal periods. Id. As in Donohue, Kriegler presented his 7 findings after analyzing time records of a sample set of approximately 94 putative class members 8 between December 1, 2016 and February 8, 2021. Doc. No. 32-6 at 7-8. Kriegler’s findings 9 indicate that there were a total of 630 short first meal periods with a duration of exactly 30 minutes 10 if based on inferred rounded punches and a total of 1,297 late first meal periods that started exactly 11 five hours after the shift began if based on inferred rounded punches. Id. at 15. The introduction 12 of these findings is sufficient to trigger the rebuttable presumption and shift the burden onto 13 Leprino to show that a significant number of employees either received proper compensation or 14 voluntarily chose to skip their meal breaks, creating individualized issues of liability. Estrada, 76 15 Cal. App. 5th at 726; Santillan, 2022 U.S. Dist. LEXIS 182405, at *38 (citing Donohue, 481 P.3d 16 at 674). 17 Although Leprino argues that Kriegler’s findings improperly assume that employees were 18 uncompensated, Leprino does not present any meaningful evidence showing otherwise. Leprino 19 submits declarations and testimony of putative class members stating they had break relief to 20 provide them with timely breaks, that they always took their meal break before their fifth hour of 21 work, and that they do not recall ever clocking out late for their meal breaks. Doc. No. 56 at 38. 22 Leprino also presents evidence that it insisted that employees take their meal periods by the fifth 23 hour and counseled or disciplined them when they did not do so. Id. at 38-39. Although these 24 declarations and testimonies evince evidence of compliant meal periods, they are not evidence that 25 the employees received proper compensation for untimely meal breaks or that they voluntarily 26 chose to miss some or all of their meal periods. Santillan, 2022 U.S. Dist. LEXIS 182405, at *39. 27 Leprino also argues that Plaintiff failed to offer any evidence that Leprino systematically 28 failed to pay penalty pay. Doc. No. 56 at 39. However, as discussed above, because Plaintiff 1 triggered the rebuttable presumption of class wide liability, the burden shifted to Leprino to show 2 that a significant number of employees either received proper compensation or voluntarily chose 3 to skip their meal breaks, creating individualized issues of liability. Estrada, 76 Cal. App. 5th at 4 726; Santillan, 2022 U.S. Dist. LEXIS 182405, at *38 (citing Donohue, 481 P.3d at 674). Based 5 on Leprino’s submitted evidence and briefing, the Court is unable to find that Leprino rebutted the 6 presumption or that individualized issues of liability predominate over the common question of 7 whether Leprino’s meal period timekeeping system resulted in untimely or short meal periods for 8 the putative class in violation of California law. 9 3. On-Call Break Claim 10 Under California law, “employees must not only be relieved of work duties [during 11 breaks], but also be freed from employer control over how they spend their time.” Augustus v. 12 ABM Sec. Servs., Inc., 2 Cal. 5th 257, 270 (2016); see also Brinker Rest. Corp. v. Superior Court, 13 53 Cal. 4th 1004, 1038-39 (2012) (stating that the “fundamental employer obligations associated 14 with a meal break” are “to relieve the employee of all duty and relinquish any employer control 15 over the employee and how he or she spends the time”). In Augustus, the California Supreme 16 Court explained that if employees are effectively “on call” during meal or rest periods because 17 conditions require them to be ready and capable of being summoned to action, then the breaks 18 provided are not control-free and, consequently, not legally compliant. Augustus, 2 Cal. 5th at 19 270. Employers who fail to provide duty free meal or rest breaks must pay the employee “one 20 additional hour of pay at the employee’s regular rate of compensation for each workday that the 21 meal or rest period [was] not provided.” Cal. Lab. Code § 226.7. 22 Walter claims that the following evidence collectively demonstrate that Leprino’s hourly 23 employees were “on-call” during their meal and rest breaks: (1) Leprino’s policies stressed 24 “quality” and makes “quality” the class members’ responsibility, effectively requiring them to 25 attend to the production line even during breaks; (2) Leprino’s policy regarding responsiveness to 26 supervisors required employees to remain alert and responsive to supervisors’ questions and 27 instructions during breaks; (3) many workers were assigned radios and told to carry them at all 28 times, including during breaks; (4) Leprino installed an intercom in the breakroom so workers 1 could communicate with the floor during breaks; (5) testimony of putative class members confirm 2 that Leprino’s policies and practices have created a culture of on-call breaks; and (6) this Court 3 certified two class actions alleging a similar on-call theory against the same Defendant. Doc. No. 4 32-1 at 36; see Perez, 2021 U.S. Dist. LEXIS 2165, at *34; Vasquez, 2020 U.S. Dist. LEXIS 5 56425, at *51. Walter asserts that the above evidence pose a common question that is central to 6 his claim: namely, in light of Leprino’s uniform policies and practices, are the class members 7 actually on call during breaks? Said differently, are the class members not truly freed from 8 Leprino’s control during their breaks? Vasquez, 2020 U.S. Dist. LEXIS 56425 at *43. 9 Walter has presented sufficient evidence to satisfy the commonality requirement for his on- 10 call break claims. Walter, through several witness declarations and depositions from putative 11 class members, has shown that the putative class was subjected to Leprino’s foregoing policies 12 and practices. Evon v. Law Offices of Sidney Mickell, 688 F.3d 1015, 1029 (9th Cir. 2012) 13 (“[C]ommonality requires the plaintiff to demonstrate the class members ‘have suffered the same 14 injury.’”); Staton v. Boeing Co., 327 F.3d 938, 954 (9th Cir. 2003) (“[T]he breadth and 15 consistency of class counsel's initial evidence places the district court's finding of commonality 16 well within that court's discretion.”). For example, many putative class members stated that they 17 and other employees were regularly contacted during their breaks about work-related matters, be it 18 via radio, intercom, or in person. Doc. No. 32-1 at 23 n.13 (citing Allan Depo. at 68:11–69:11; 19 Anaya Depo. at 69:7–18, 149:10–150:25; Chhann Depo. at 72:18–25, 74:3–25, 88:16–92:23, 20 108:4–111:3; DeWalt Depo. at 41:25–42:8, 204:4–205:7; Gutierrez Depo. at 97:20–98:21, 195:7– 21 196:1; Hurst Depo. at 87:16–22, 92:4–8, 146:13–147:6, 149:17–21, 150:8–151:9, 154:18–155:16; 22 Rosales Depo. at 125:21–126:3; Sun Depo. at 130:23–131:5, 132:20–133:4; Smith Depo. at 94:1– 23 21, 97:25–98:18, 188:18–189:16; Travers Depo. at 85:11–87:15, 89:5–90:9). Additionally, many 24 putative class members stated they were required to attend to their duties and the production line, 25 even during meals and rest periods. Doc. No. 32-1 at 23 n.12 (citing Anaya Depo. at 59:18–60:23, 26 65:1–66:5; DeWalt Depo. at 204:4–205:21; Chhann Depo. at 96:6–25; Guaydacan Depo. at 71:5– 27 14; Hurst Depo. at 145:7–146:12; Travers Depo. at 86:21–87:18; Rosales Depo. at 117:5–14; 28 Withers Depo. at 34:22–35:12; Yates Depo. at. 159:23– 160:1); see also Doc. No. 32-4 at 8 1 (Anaya Decl. at ¶ 6), 4 (Allan Decl. at ¶ 4), 26-27 (DeWalt Decl. at ¶¶ 4, 7), 21 (Chhann Decl. at ¶ 2 5), 39 (Guaydacan Decl. at ¶ 4), 58-59 (Smith Decl. at ¶ 5), and 55 (Rosales Decl. at ¶ 5). 3 In light of this evidence, there exists a common question as to whether Leprino’s uniform 4 policies and practices compelled employees to remain on-call during their meal and rest periods. 5 See Howell v. Leprino Foods Co., 2022 U.S. Dist. LEXIS 52796, *28-29 (E.D. Cal. Mar. 22, 6 2022). This common question is central to Walter’s claim and one that can be answered with 7 common proof regarding common injury. If at trial the jury answers yes, then Leprino is liable to 8 the class for meal and rest period violations; if the answer is no, then Leprino is not liable. Id. at 9 *29. This satisfies the commonality requirement under Rule 23(a)(2). Id.; Perez, 2021 U.S. Dist. 10 LEXIS 2165 at *31 (finding there exists a common question as to whether Leprino’s uniform 11 policies and practices compel employees to remain on-call during their meal and rest periods); 12 Vasquez, 2020 U.S. Dist. LEXIS 56425 at *43-*45 (same); see also Wright v. Renzenberger, Inc., 13 2017 U.S. Dist. LEXIS 225209, *19 (C.D. Cal. Sep. 30, 2017) (finding common question as to 14 whether drivers were on-call during rest periods based on uniform policy); Ayala v. U.S. Xpress 15 Enters., 2017 U.S. Dist. LEXIS 125247, *29 (C.D. Cal. July 27, 2017) (“[L]iability will turn on 16 whether ‘securing the load’ and responding to alerts messages rises to the level of employee 17 control that would turn any break periods provided into impermissible on call breaks, that would 18 consequently require compensation.”). 19 Leprino’s arguments against commonality are not persuasive. First, Leprino argues it does 20 not have an express on-call break policy in writing. However, Walter does not dispute this point; 21 Walter’s on-call break claim is premised on the assertion that Leprino’s policies on quality, 22 production goals, responsiveness to supervisors, and use of communication devices have the effect 23 of putting putative class members on call during their breaks. Therefore, the lack of an express 24 on-call break policy does not defeat Walter’s on-call break claims. 25 Second, Leprino contends it does not have a de facto on-call break policy because (1) 26 Leprino’s emphasis on quality does not require employees to watch production during breaks, (2) 27 Leprino does not require hourly employees to respond to supervisors during breaks, (3) not all 28 hourly employees carry radios, and the few who do are not required to keep them on and respond 1 during breaks, and (4) employees were not required to listen and respond to calls over the 2 facility’s intercom during their breaks. While the Court appreciates Leprino’s challenges to each 3 facet of Plaintiff’s multifaceted theory, Plaintiff has sufficiently shown that the above policies are 4 common and that a reasonable judgment could be formed based on this evidence that they 5 collectively put the putative class on call during their breaks. See Sali, 909 F.3d at 1005; see also 6 Perez, 2021 U.S. Dist. LEXIS 2165 at *31; Vasquez, 2020 U.S. Dist. LEXIS 56425 at *43-*45. 7 Plaintiff has shown, for example, that “quality” was one of Leprino’s core values at the Tracy 8 facility during the putative class period, and that “every employee [was] responsible to make sure 9 [Leprino] produced a quality product.” Doc. No. 32-1 at 22 (citing McDaniel Depo. at 72:7–18). 10 In accordance with this emphasis on quality, Plaintiff submitted evidence that putative class 11 members during their breaks were told to remain on standby or called back to attend to the 12 production line and address issues impacting product quality. Doc. No. 32-2 at 550-53 (Chhann 13 Depo. 108:4–111:3), 446-47 (Anaya Depo. 67:8–68:18), and 507-08 (DeWalt Depo. at 41:25– 14 42:8); Doc. No. 57-1 at 233-34 (Rosales Depo. 130:23–131:16). Plaintiff has also shown that 15 Leprino regarded insubordination to supervisors as a cause for discipline, and that supervisors 16 contacted many putative class members during breaks regarding work-related inquiries or 17 instructions on multiple occasions. Doc. No. 32-1 at 23 n.13 (citing Allan Depo. at 68:11–69:11; 18 Anaya Depo. at 69:7–18, 149:10–150:25; Chhann Depo. at 72:18–25, 74:3–25, 88:16–92:23, 19 108:4–111:3; DeWalt Depo. at 204:4–205:7; Gutierrez Depo. at 195:7–196:1; Rosales Depo. at 20 125:21–126:3; Sun Depo. at 130:23–131:5, 132:20–133:4). Furthermore, Plaintiff has shown that 21 while not every employee carried a radio or was called over a communications device during 22 breaks, evidence of that practice “may be reasonably considered by the factfinder as reflective or 23 symbiotic of a facility-wide policy that prioritizes work above breaks.” Vasquez, 2020 U.S. Dist. 24 LEXIS 56425, at *47; see also Howell, 2022 U.S. Dist. LEXIS 52796, at *31-*32. 25 Finally, Leprino argues that Walter has not presented sufficient evidence that putative class 26 members were subject to Leprino’s “control” during their breaks. Leprino specifically asserts that 27 the element of control cannot be determined through analysis of Leprino’s policies and practices 28 alone and that putative class members disagree about the level of control Leprino had over them 1 during breaks. However, as discussed above, Plaintiff has presented evidence showing that 2 Leprino’s policies and practices regarding quality, responsiveness, and communication were 3 common to the putative class and implemented against putative class members even during their 4 breaks. Additionally, Augustus distinguished the authority Leprino primarily cites in support of its 5 control argument, Madera Police Officers Ass’n v. City of Madera, 36 Cal. 3d 403 (1984), on the 6 ground that Madera concerned on-call 24-hour shifts which are inapposite in the context of rest 7 and meal break periods. Augustus, 2 Cal. 5th at 271 n.13. Therefore, Leprino’s control argument 8 is unavailing. 9 Having found the commonality requirement satisfied with respect to Walter’s on-call break 10 theory, the Court turns to the predominance requirement of Rule 23(b)(3). As previously stated, a 11 central common question regarding this theory is whether Leprino’s uniform policies and practices 12 effectively resulted in employees being placed on call during breaks. The Court finds that the 13 common question predominates over individualized inquires because answering this common 14 question does not require a great deal of individualized proof but can instead be done with the 15 aforementioned facility-wide policies and practices. Howell, 2022 U.S. Dist. LEXIS 52796, at 16 *33-*34. Leprino contends that individualized questions predominate because individualized 17 inquiries are necessary to determine each putative class member’s interpretation and 18 understanding of the aforementioned policies, and whether the putative class members were still 19 under Leprino’s control during break time. The Court disagrees. Leprino’s argument is 20 unavailing because the Court has already found that Walter’s alleged policies and practices are 21 sufficiently facility-wide. Walter presented sufficient objective evidence that Leprino’s policies 22 and practices regarding product quality, responsiveness to supervisors, carrying radios, and 23 intercom use collectively create a common question, and this common question predominates over 24 individualized inquiries into the members’ subjective understanding of these policies and 25 practices. 26 In sum, the Court concludes that Walter’s on-call break claims satisfy the commonality 27 and predominance requirements of Rule 23(a) and Rule 23(b)(3). 28 1 4. On-Duty Meal Period Claim 2 An on-duty meal period is one in which an employee is not “relieved of all duty” for the 3 entire 30-minute period. Brinker, 53 Cal. 4th at 1035. An off-duty meal period, therefore, is one 4 in which the employee “is relieved of all duty during [the] 30 minute meal period.” Id. Absent 5 circumstances permitting an on-duty meal period, an employer’s obligation is to provide an off- 6 duty meal period: an uninterrupted 30-minute period during which the employee is relieved of all 7 duty. Id. An ‘on duty’ meal period shall be permitted only when the nature of the work prevents 8 an employee from being relieved of all duty and when by written agreement between the parties an 9 on-the-job paid meal period is agreed to. Id. The written agreement shall state that the employee 10 may, in writing, revoke the agreement at any time. Id. 11 Walter argues that there is nothing about the nature of the work that prevents the putative 12 class members from being relieved for a proper break. Therefore, to the extent there are putative 13 class members who worked pursuant to a straight eight-hour shift under an on-duty meal period 14 agreement, common questions exist as to whether the on-duty meal period agreement violated 15 California law. In response, Leprino asserts that the only evidence Plaintiff submitted in support 16 of his on-duty meal period claim is an unsigned, undated on-duty meal period agreement form 17 without any evidence of a putative class member working a “straight 8” shift or entering into an 18 on-duty meal period agreement. 19 Upon review, the Court finds that Walter has provided no evidence showing that on-duty 20 meal period agreements were common across the putative class. Without such evidence, the 21 question of whether Leprino utilized improper on-duty meal period agreements will involve 22 individualized inquiries into each putative class member that will predominate over common 23 questions. Therefore, Plaintiff has not satisfied the commonality and predominance requirements 24 of Rule 23(a) and Rule 23(b)(3) for his on-duty meal period claim. 25 G. Superiority 26 Certification under Rule 23(b)(3) also requires a finding that “a class action is superior to 27 other available methods for the fair and efficient adjudication of the controversy.” Fed. R. Civ. P. 28 23(b)(3). To evaluate superiority, the court shall consider four “pertinent” factors: (1) the class 1 members’ interests in individually controlling the prosecution or defense of separate actions; (2) 2 the extent and nature of any litigation concerning the controversy already begun by or against 3 class members; (3) the desirability or undesirability of concentrating the litigation of the claims in 4 the particular forum; and (4) the likely difficulties in managing a class action. Fed. R. Civ. P. 5 23(b)(3)(A)−(D). “A consideration of these factors requires the court to focus on the efficiency 6 and economy elements of the class action so that cases allowed under subdivision (b)(3) are those 7 that can be adjudicated most profitably on a representative basis.” Zinser v. Accufix Research 8 Inst., Inc., 253 F.3d 1180, 1190 (9th Cir. 2001) (citation omitted). “A class action is the superior 9 method for managing litigation if no realistic alternative exists.” Valentino v. Carter–Wallace, 10 Inc., 97 F.3d 1227, 1234 (9th Cir. 1996). In contrast, “[i]f each class member has to litigate 11 numerous and substantial separate issues to establish his or her right to recover individually a class 12 action is not superior.” Zinser, 253 F.3d at 1192. 13 Here, with respect to Walter’s late and short meal break claim, the Court finds the Rule 14 23(b)(3) superiority factors weigh in favor of certification. There is no indication of putative class 15 members wanting to assert late and short meal break claims in separate actions. Nor is there 16 indication of other actions raising the same issues based on the same facts pertaining to Leprino’s 17 Tracy facility. There is also no indication here that managing Walter’s late and short meal break 18 claim as a class action would be unmanageable. To the contrary, this claim seems particularly apt 19 for class adjudication through use of meal period time punch records and data in Leprino’s 20 possession. See Kamar v. Radio Shack Corp., 254 F.R.D. 387, 405 (C.D. Cal. 2008) (finding that 21 inquiries into class members’ actual wages would be relatively manageable because defendant’s 22 payroll records contain that data). Finally, class litigation is superior here for Walter’s late and 23 short meal break claim, as it often is in wage-and-hour lawsuits, because “the individual damages 24 of each employee are too small to make litigation costs effective.” Wright v. Renzenberger, Inc., 25 2017 U.S. Dist. LEXIS 225209, *36 (C.D. Cal. 2017). 26 However, with respect to Walter’s on-call break claims, the Court has concerns under Rule 27 23(b)(3)(B) regarding the extent and nature of the Howell litigation concerning the controversy 28 already begun by hourly employees of the Tracy facility against Leprino. See Howell, 2022 U.S. 1 Dist. LEXIS 52796, at *37 (certifying Howell’s on-call break claims against Leprino on behalf of 2 non-exempt hourly employees at Leprino’s Tracy plant). Rule 23(b)(3)(B) is “intended to serve 3 the purpose of assuring judicial economy and reducing the possibility of multiple lawsuits.” 4 Zinser, 253 F.3d at 1191. If the court finds that several other actions already are pending and that 5 a clear threat of multiplicity and a risk of inconsistent adjudications actually exist, a class action 6 may not be appropriate since, unless the other suits can be enjoined, a Rule 23 proceeding only 7 might create one more action. Id. Rather than allowing the class action to go forward, the court 8 may encourage the class members who have instituted the Rule 23(b)(3) action to intervene in the 9 other proceedings. Id. 10 Here, Plaintiff does not deny that Howell involves the same on-call break claims asserted 11 against Leprino on behalf of non-exempt hourly employees at the same Tracy facility. In fact, 12 Plaintiff frequently cited Howell in this matter to show that the two cases involve the same facts 13 and on-call break claims. The only difference between Howell and the instant case regarding the 14 defined class is that the class period in Howell is from April 24, 2014 to March 22, 2022 while the 15 class period here is from February 28, 2016 to August 29, 2022.9 In other words, the only portion 16 of the class period here that does not overlap with the class period in Howell is from March 23, 17 2022 to August 29, 2022. Walter did not work for Leprino during this approximately five-month 18 period; he worked for Leprino from December 2018 to October 2021, which falls completely 19 under the class period set in Howell. Doc. No. 32-4 at 66. The Court also notes that Plaintiff 20 submitted largely the same declarations and deposition testimonies of putative class members in 21 this case as the class representative did in the Howell case. Counsel for plaintiffs in this case and 22 the Howell case are also the same. In light of the above, the Court finds that the maintenance of 23 Walter’s on-call break claims as a class action would be duplicative and inconsistent with the 24 objectives of Rule 23(b)(3). See Soares v. Flowers Foods, Inc., 320 F.R.D. 464, 485 (N.D. Cal. 25 9 The class in Howell is defined as “All non-exempt hourly workers who are currently employees, or formerly have 26 been employed, as non-exempt hourly employees at Leprino’s Tracy plant in Tracy, California, at any time within four years prior to the filing of the original complaint [April 24, 2014] until the date the Court grants certification 27 [March 22, 2022].” See Howell, 2022 U.S. Dist. LEXIS 52796, at *37. Here, as mentioned above, the proposed class is defined as “All non-exempt hourly workers who are currently employed, or formerly have been employed, as non- 28 exempt hourly employees at Leprino’s Tracy plant in Tracy, California, at any time within four years prior to the 1 2017) (denying class certification because the “clear threat of multiplicity and inconsistent 2 adjudications” that the Ninth Circuit warned against was present in that there was a separate case 3 of consolidated individual claims by putative class members against the same defendant); Shasta 4 Linen Supply v. Applied Underwriters, Inc., 2019 U.S. Dist. LEXIS 14286, *15 (E.D. Cal. Jan. 5 28, 2019) (“If the court finds that several other actions are pending and that a threat of inconsistent 6 adjudications exist, a class action may not be appropriate.”); see also Becker v. Schenley Indus., 7 Inc., 557 F.2d 346, 348 (2d Cir. 1977) (concluding that “the maintenance of the instant case as a 8 class action would be duplicative and inconsistent with the objectives of Fed. R. Civ. P. 23(b)(3)” 9 because class action status had already been granted in another case); Kinkead v. Humana at 10 Home, Inc., 330 F.R.D. 338, 356 (D. Conn. 2019) (“[C]ourts may, in their discretion, deny 11 certification to avoid duplicative class actions.”); Schucker v. Flowers Foods, Inc., 2017 U.S. Dist. 12 LEXIS 136178, *12 (S.D.N.Y. Aug. 24, 2017) (“[T]here is no question that in the class action 13 context, a trial court’s discretion to deny certification ‘has continually been upheld where . . . it 14 has been exercised so as to avoid duplicative class actions.’”) (citing Becker, 557 F.2d at 348). 15 Therefore, the Court finds that Walter’s on-call break claims do not satisfy the Superiority element 16 of Rule 23(b)(3) and will not be certified.10 17 ORDER 18 Accordingly, IT IS HEREBY ORDERED that: 19 1. Walter’s certification motion (Doc. No. 32) is GRANTED IN PART and DENIED 20 IN PART as follows: 21 a. Walter’s late and short meal break claim is CERTIFIED for class 22 aggregation under Rule 23(b)(3); 23 b. Walter’s on-call breaks claims are NOT CERTIFIED for class aggregation 24 under Rule 23; 25 c. Walter’s on-duty meal period claim is NOT CERTIFIED for class 26 aggregation under Rule 23; 27 10 Even if the Court certified Walter’s on-call break claims for only the time period between March 23, 2022 to 28 August 29, 2022, Walter did not work for Leprino during this time period and, therefore, his putative role as class 1 d. Walter’s pre-shift rounding claim is NOT CERTIFIED for class aggregation 2 under Rule 23; 3 e. The class is defined as follows: 4 All non-exempt hourly workers who are currently employed, or formerly have been employed, as non-exempt hourly employees at 5 Leprino’s Tracy plant in Tracy, California, at any time within four years prior to the filing of the original complaint until August 29, 6 2022. 7 f. Fred Walter is APPOINTED as the class representative. 8 g. The Parris Law Firm and The Downey Law Firm are APPOINTED as class 9 counsel; 10 2. Leprino’s Request for Court Guidance (Doc. No. 58) is DENIED; 11 3. The parties must promptly MEET AND CONFER about the submission of a joint 12 stipulated class notice and distribution plan. Within twenty-one (21) days of this 13 order, the parties must FILE either a stipulated class notice and distribution plan or 14 a notice that no stipulation can be agreed to. If the parties cannot agree to a class 15 notice or distribution plan, then Walter must FILE a proposed class notice and 16 distribution plan within thirty-five (35) days of this order, and Leprino shall have 17 fourteen (14) days following Walter’s filing to FILE any objections, and Walter 18 shall have seven (7) days following Leprino’s filing to FILE a reply; and 19 3. This case is REFERRED BACK to the assigned magistrate judge for further 20 scheduling and other proceedings consistent with this order. 21 IT IS SO ORDERED. 53 |Dated: _ April 24, 2023 7 Zz : Z Cb Led "SENIOR DISTRICT JUDGE 24 25 26 27 28 30