Durham v. Sachs Electric Company ( 2021 )

1 2 UNITED STATES DISTRICT COURT 3 NORTHERN DISTRICT OF CALIFORNIA 4 SAN JOSE DIVISION 5 WILLIAM DURHAM, et al., 6 Case No. 18-cv-04506-BLF Plaintiffs, 7 v. ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR 8 SACHS ELECTRIC COMPANY, et al., CLASS CERTIFICATION 9 Defendants. [Re: ECF 90] 10 This wage and hour class and PAGA action arises out of Plaintiff William Durham and the 11 proposed class members’ employment by Defendant Sachs Electric Company (“Sachs”) at the 12 California Flats Solar Project. Presently before the Court is Plaintiff’s Second Motion for Class 13 Certification. Mot., ECF 90-1. Durham seeks to certify five California classes (three classes and 14 two subclasses) under Rule 23(b)(3). Notice, ECF 90. For each class, Durham seeks to bring the 15 following five claims: (1) failure to pay wages for hours worked under Cal. Labor Code § 1197; 16 (2) wage statement and record-keeping violations under Cal. Labor Code § 226; (3) failure to pay 17 waiting time wages under Cal. Labor Code § 203; (4) violation of Cal. Labor Code § 2802; and (5) 18 violation of California’s Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code §§ 17200, et 19 seq. First Am. Compl. (“FAC”), ECF 13. Durham separately brings a representative claim for the 20 recovery of civil penalties under the California Private Attorney General Act (“PAGA”), Cal. 21 Labor Code § 2698, et seq. Id. 22 The Court held a hearing on this motion on June 24, 2021. For the reasons stated below, 23 the Court GRANTS IN PART and DENIES IN PART Plaintiff’s motion for class certification. 24 I. BACKGROUND 1 A. California Solar Flats Project 2 Durham alleges that Sachs acted as an employer, co-employer, or joint-employer of 3 Durham and the proposed class members during their work on the California Flats Solar Project, 4 which involved the construction and development of photovoltaic power. FAC ¶¶ 8-9. Relevant 5 here, Durham alleges that Sachs violated California labor laws when the company “controlled” 6 employees “during the mandated travel time before and after their scheduled shifts.” Id. ¶ 29. The 7 SAC explains: 8 After Plaintiff and class members were “badged in” at the security entrance, they were then required to travel approximately 12 or more 9 miles along a route designated by Defendants, at a slow speed limit designated by Defendants, and using non-public roads controlled by 10 Defendants to reach parking lots controlled by Defendants and arrive by a specific time designated by Defendants. Plaintiff and 11 class members were not able to use this travel time effectively for their own purposes. 12 Id. ¶ 27. “[T]ravel time generally took 45 minutes or more each way.” Id. ¶ 29. 13 B. Named Plaintiff 14 Durham was employed at the California Flats Solar Project by Sachs as a journeyman 15 wireman, crew foreman, and general foreman between July 2016 and September 2017. Durham 16 Decl., ECF 90-4 ¶ 2. Durham alleges that Sachs required California Flats Solar Project employees 17 to report to the Security Gate Entrance each day. Id. ¶ 12. At the Security Gate Entrance, Durham 18 was required to wait in line to go through a security process. Id. ¶ 12; see, e.g., id. ¶¶ 16 (“I was 19 told that we workers were required to roll down our windows and present our security 20 identification badges for review and scanning by a security guard.”), 17 (“As I was going through 21 the security entrance process, the security guards would stand beside each vehicle and I could see 22 the security guards as they were looking into the windows of my vehicle and of other vehicles.”). 23 Durham was then required to drive from the Security Gate Entrance down the Access Road to the 24 1 rules and restrictions of the Solar Site including many rules of the road that applied to going 2 through and driving on the restricted Access Road between the Security Gate and the parking lots 3 inside the Solar Site. These Solar Site rules of the road were much more restrictive than the rules 4 that applied to public roads.” Id. ¶ 18; see also id. ¶¶ 18 (listing rules), 19 (same), 20-21 5 (explaining that employees were not permitted to walk or bike on the Access Road to the parking 6 lots). At the end of the day, Sachs required Durham to go through another security process. Id. ¶ 7 28. Durham contends that he was not paid while waiting in security lines or while driving down 8 between the Security Gate and the parking lots. Id. ¶ 43. Durham further contends that California 9 Flats Solar Project management, which includes Sachs, told workers that if they did not follow the 10 Project rules, they would be disciplined, suspended, or fired. Id. ¶¶ 4-7. 11 C. Proffered Evidence 12 In support of his Motion for Class Certification, Durham offers the Court seven additional 13 declarations from Sachs employees and putative class members. See ECF 90-5-11. These 14 declarations largely mimic Durham’s declaration as detailed above. Sachs, for its part, offers the 15 declaration of Sachs Senior Vice President Michael Rega. Rega Decl., ECF 93-2. It also offers 16 declarations filed in opposition to class certification in Justin Griffin v. Sachs Electric Company, 17 et al., Case No. 5:17-cv-03778-BLF (the “Griffin action”).1 Opp., ECF 93 at 4, fn. 1. The 18 declarations are from James Scott Wilkinson, a senior project manager at Sachs, and Abraham 19 Babcock, a project director for McCarthy Building Companies, Inc. Wilkinson Decl., ECF 93-1, 20 Exh. 1; Babcock Decl., ECF 93-1, Exh. 2. 21 D. Proposed Class Definitions 22 Durham seeks to certify five classes under 23(a) and 23(b)(3): 23 i. Unpaid Wages Class (Security Time): 24 1 All non-exempt employees of or worked for Sachs Electric Company who worked on the construction of the California Flats Solar Project 2 at any time within the period from July 25, 2014 through the date of class certification who were not paid for all time waiting in line to go 3 through and going through the mandatory exit security process. 4 ii. Unpaid Wages Class (Controlled Travel Time): 5 All non-exempt persons who were employees of or worked for Sachs Electric Company on the construction of the California Flats Solar 6 Project at any time within the period from July 25, 2014 through the date of class certification who were not paid for all time traveling 7 from the badging-in location at the security gate to when they began to be paid and from when they stopped being paid to when they 8 arrived back at badging-out location at the security gate. 9 iii. Unpaid Wages Class (Paragraph 5(A) Travel Time): All non-exempt persons who were employees of or worked for Sachs 10 Electric Company on the construction of the California Flats Solar Project at any time within the period from July 25, 2014 through the 11 date of class certification who were not paid for all time traveling 12 from the badging-in location at the security gate to when they began to be paid and from when they stopped being paid to when they 13 arrived back at badging-out location at the security gate. iv. Termination Pay Subclass: 14 All member of Class 1, 2, or 3 whose employment with Sachs Electric 15 Company terminated within the period beginning July 25, 2015 to the date of class certification. 16 v. Wage Statement Subclass: 17 All member of Class 1, 2, or 3 whose received wage statements from 18 Sachs Electric Company during the period beginning July 25, 2017 to the date of class certification. 19 Notice at 2-3. 20 II. LEGAL STANDARD 21 Federal Rule of Civil Procedure 23 governs class actions. “Before certifying a class, the 22 trial court must conduct a rigorous analysis to determine whether the party seeking certification 23 has met the prerequisites of Rule 23.” Mazza v. Am. Honda Motor Co., Inc., 666 F.3d 581, 588 24 1 to show, by a preponderance of the evidence, that the prerequisites have been met. See Wal-Mart 2 Stores, Inc. v. Dukes, 564 U.S. 338, 349–50 (2011). 3 Certification under Rule 23 is a two-step process. The party seeking certification must first 4 satisfy the four threshold requirements of Rule 23(a)—numerosity, commonality, typicality, and 5 adequacy. Specifically, Rule 23(a) requires a showing that 6 (1) the class is so numerous that joinder of all members is impracticable; 7 (2) there are questions of law or fact common to the class; 8 (3) the claims or defenses of the representative parties are typical of 9 the claims or defenses of the class; and 10 (4) the representative parties will fairly and adequately protect the interests of the class. 11 The party seeking certification must then establish that one of the three grounds for 12 certification applies under Rule 23(b). Durham invokes Rule 23(b)(3), which provides that a class 13 action may be maintained where 14 the court finds that the questions of law or fact common to class 15 members predominate over any questions affecting only individual members, and that a class action is superior to other available methods 16 for fairly and efficiently adjudicating the controversy. The matters pertinent to these findings include: 17 (A) the class members’ interests in individually controlling the 18 prosecution or defense of separate actions; 19 (B) the extent and nature of any litigation concerning the controversy already begun by or against class members; 20 (C) the desirability or undesirability of concentrating the litigation of 21 the claims in the particular forum; and 22 (D) the likely difficulties in managing a class action. 23 A Rule 23(b)(3) class is appropriate “whenever the actual interests of the parties can be 24 served best by settling their differences in a single action.” Hanlon v. Chrysler Corp., 150 F.3d 1 a significant aspect of the case and they can be resolved for all members of the class in a single 2 adjudication, there is clear justification for handling the dispute on a representative rather than on 3 an individual basis.” Id. (citation and internal quotation marks omitted); accord Mazza, 666 F.3d 4 at 589. 5 In considering a motion for class certification, the substantive allegations of the complaint 6 are accepted as true, but “the court need not accept conclusory or generic allegations regarding the 7 suitability of the litigation for resolution through a class action.” Hanni v. Am. Airlines, Inc., No. 8 08-cv-00732, 2010 WL 289297, at *8 (N.D. Cal. Jan. 15, 2010); see also Jordan v. Paul Fin., 9 LLC, 285 F.R.D. 435, 447 (N.D. Cal. 2012) (“[Courts] need not blindly rely on conclusory 10 allegations which parrot Rule 23 requirements.” (citation and internal quotation marks omitted)). 11 Accordingly, “the court may consider supplemental evidentiary submissions of the parties.” 12 Hanni, 2010 WL 289297, at *8 (citations omitted); see also Blackie v. Barrack, 524 F.2d 891, 901 13 n.17 (9th Cir. 1975). 14 “A court’s class-certification analysis . . . may entail some overlap with the merits of the 15 plaintiff’s underlying claim.” Amgen Inc. v. Connecticut Ret. Plans & Tr. Funds, 568 U.S. 455, 16 465–66 (2013) (citation and internal quotation marks omitted). However, “Rule 23 grants courts 17 no license to engage in free-ranging merits inquiries at the certification stage.” Id. at 466. “Merits 18 questions may be considered to the extent—but only to the extent—that they are relevant to 19 determining whether the Rule 23 prerequisites for class certification are satisfied.” Id. 20 III. DISCUSSION 21 The parties have submitted evidence in support of their respective positions. The Court has 22 reviewed all of this evidence in detail. For the reasons discussed below, the Court is persuaded 23 that it is appropriate to certify the three classes and two subclasses under Rule 23(b)(3) for each of 24 1 the five causes of action.2 This certification, however, is made with modification to the class 2 definitions. 7A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1759 3 (3d ed.) (“[T]he court may construe the complaint or redefine the class to bring it within the scope 4 of Rule 23 or it may allow plaintiff to amend in order to limit the class.”). 5 A. Plaintiff Has Met the Rule 23(a) Requirements 6 A named plaintiff bears the burden of demonstrating that the class meets the following four 7 requirements of Rule 23(a): (1) the class is so numerous that joinder of all members is 8 impracticable; (2) there are questions of law or fact common to the class; (3) the claims or 9 defenses of the representative parties are typical of the claims or defenses of the class; and (4) the 10 representative parties will fairly and adequately protect the interests of the class. See Zinser v. 11 Accufix Research Inst., Inc., 253 F.3d 1180, 1186 (9th Cir.), amended by, 273 F.3d 1266 (9th Cir. 12 2001) (citing Doninger v. Pac. Nw. Bell, Inc., 564 F.2d 1304, 1309 (9th Cir. 1977)). 13 1. Numerosity 14 Rule 23(a)(1) requires that the size of the proposed class be “so numerous that joinder of 15 all the class members is impracticable.” Impracticability is not impossibility, and instead refers 16 only to the “difficulty or inconvenience of joining all members of the class.” Harris v. Palm 17 Springs Alpine Estates, Inc., 329 F.2d 909, 913–14 (9th Cir. 1964) (citation and internal quotation 18 marks omitted). While there is no set number cut-off, the number of individuals who will satisfy 19 the requirements for membership in the proposed classes in this case easily satisfies the 20 numerosity requirement. See Litty v. Merrill Lynch & Co., No. cv 14-0425 PA, 2015 WL 21 22 2 Sachs argues that the Court should not entertain certifying a class given the underlying claims have no legal merit. Opp. at 1-2. Sachs requests that this Court instead resolve its motion for 23 judgment on the pleadings first. Id. (citing Wright v. Schock, 742 F.2d 541 and Kim v. Commandant, 772 F.2d 521, 524 (9th Cir. 1985)). This argument is moot given the Court has 24 denied Sachs’ motion for judgment on the pleadings and no motion for summary judgment is 1 4698475, at *3 (C.D. Cal. Apr. 27, 2015) (“[N]umerosity is presumed where the plaintiff class 2 contains forty or more members.”); Welling v. Alexy, 155 F.R.D. 654, 656 (N.D. Cal. 1994) 3 (noting that courts have certified classes as small as 14 and have often certified classes with 50 to 4 60 members). 5 The Court concludes there is sufficient numerosity. There are approximately 450 class 6 members who worked as Sachs employees at the California Flats Solar during the class period. 7 Mot. at 8 (citing Durham v. Sachs Electric Company, No. 18-CV-04506-BLF, 2021 WL 242874, 8 at *6 (N.D. Cal., Jan. 25, 2021)). Joinder of each of these affected individuals would be 9 impracticable. Sachs does not dispute that this requirement is satisfied. 10 2. Commonality 11 The commonality requirement of Rule 23(a)(2) is met where “the class members’ claims 12 ‘depend upon a common contention’ such that ‘determination of its truth or falsity will resolve an 13 issue that is central to the validity of each [claim] with one stroke.’” Mazza, 666 F.3d at 588 14 (internal citation omitted) (quoting Dukes, 564 U.S. at 350). Thus, a plaintiff seeking to certify a 15 class must “demonstrate ‘the capacity of classwide proceedings to generate common answers’ to 16 common questions of law or fact that are ‘apt to drive the resolution of the litigation.’” Id. 17 (quoting Dukes, 564 U.S. at 350). “[C]ommonality only requires a single significant question of 18 law or fact.” Id. at 589 (citing Dukes, 564 U.S. at 358). “The commonality preconditions of Rule 19 23(a)(2) are less rigorous than the companion requirements of Rule 23(b)(3).” Hanlon, 150 F.3d at 20 1019. “The existence of shared legal issues with divergent factual predicates is sufficient, as is a 21 common core of salient facts coupled with disparate legal remedies within the class.” Id. 22 Durham alleges that common issues to the class include: 23 • Whether any of the exit Security Time constituted compensable “hours worked” under 24 California law. 1 • Whether the Travel Time between the Security Gate and the parking lots constituted 2 compensable “hours worked” under California law. 3 • Whether the Security Gate was the “first location where the employee’s presence is 4 required” for purposes of Paragraph 5(A) of Wage Order 16. 5 Mot. at 8. 6 The Court finds that Durham has satisfied the commonality requirement. Durham’s claims 7 satisfy the low threshold of Rule 23(a)(2). In particular, Durham has identified common legal 8 questions to the class members, such as Sachs’ obligations under California Labor Code §§ 201– 9 03, 226, 1197, and 2802 and the UCL. These commonalities are sufficient to satisfy Rule 23(a)(2). 10 Sachs largely objects to the presence of commonality in the context of the Rule 23(b)(3) 11 predominance inquiry. See Opp. at 3-6. The Court will discuss Sachs’ objections when it analyzes 12 predominance. 13 3. Typicality 14 Rule 23(a)(3) requires that “the [legal] claims or defenses of the representative parties [be] 15 typical of the claims or defenses of the class.” Typicality is satisfied “when each class member’s 16 claim arises from the same course of events, and each class member makes similar legal 17 arguments to prove the defendants’ liability.” Rodriguez v. Hayes, 591 F.3d 1105, 1122 (9th Cir. 18 2010) (citations omitted). “The test of typicality is whether other members have the same or 19 similar injury, whether the action is based on conduct which is not unique to the named plaintiffs, 20 and whether other class members have been injured by the same course of conduct.” Evon v. Law 21 Offices of Sidney Mickell, 688 F.3d 1015, 1030 (9th Cir. 2012) (internal quotation marks and 22 citation omitted). “Under the rule’s permissive standards, representative claims are ‘typical’ if they 23 are reasonably co-extensive with those of absent class members.” Hanlon, 150 F.3d at 1020. Class 24 certification is inappropriate where a putative class representative is subject to unique defenses 1 which threaten to become the focus of the litigation. See Hanon v. Dataprods. Corp., 976 F.2d 2 497, 509 (9th Cir. 1992). 3 Durham has demonstrated that his claims are representative of the claims of the class. 4 Durham alleges that because of Sachs’ security and drive time policies, he was not paid fair wages 5 under California law. See Mot. at 8-9; Durham Decl. at ¶¶ 18 (“I was told at the Solar Site 6 Orientation and in meetings that while we workers were inside the Security Gate of the Solar Site, 7 we were subject to all the job site work policies, rules and restrictions of the Solar Site including 8 many rules of the road that applied to going through and driving on the restricted Access Road 9 between the Security Gate and the parking lots inside the Solar Site”), 19 (“I was told at the Solar 10 Site Orientation and in meetings that other rules applied to all Sachs workers at all times, not only 11 when we are traveling on the Access Road but also while we were inside the Security Gate and 12 until we had gone the exit security process at the Security Site and left the Solar Site.”), 43 13 (“workers were not paid for any of the time waiting for and going through the mandatory entrance 14 and exit security processes or for the time traveling between the Security Gate and the parking 15 lots”). So too for the putative class members. See, e.g., ECF 90-5 ¶ 44; ECF 90-6 ¶ 46; ECF 90-7 ¶ 16 30; ECF 90-8 ¶ 42; ECF 90-9 ¶ 47; ECF 90-10 ¶ 36; ECF 90-11 ¶ 39. If the putative class 17 members were to proceed in an action parallel to this action, they would advance legal and 18 remedial theories similar, if not identical, to those advanced by Durham. 19 4. Adequacy 20 Rule 23(a)(4) requires that the class representatives “fairly and adequately protect the 21 interests of the class.” “Determining whether the representative parties adequately represent a 22 class involves two inquiries: (1) whether the named plaintiff and his or her counsel have any 23 conflicts of interest with other class members and (2) whether the named plaintiff and his or her 24 1 03026, 2012 WL 1668980, at *2 (N.D. Cal. May 11, 2012) (citing Lerwill v. Inflight Motion 2 Pictures, Inc., 582 F.2d 507, 512 (9th Cir. 1978)). These inquiries are guided by the principle that 3 “a class representative sues, not for himself alone, but as representative of a class comprising all 4 who are similarly situated. The interests of all in the redress of the wrongs are taken into his 5 hands, dependent upon his diligence, wisdom and integrity.” Id. (quoting Cohen v. Beneficial 6 Indus. Loan Corp., 337 U.S. 541, 549 (1949)). 7 Durham contends that he is an adequate representative for the class. Mot. at 9. Sachs does 8 not object to class certification on this ground. The Court is satisfied that neither Durham nor 9 Durham’s counsel has any conflicts of interest and that each will act vigorously on behalf of the 10 class. See Durham Decl. ¶¶ 45-50; Dion-Kindem Decl., ECF 90-2 ¶¶ 2-12; Blanchard Decl., ECF 11 90-3 ¶¶ 2-10. 12 B. Plaintiff Has Met the Rule 23(b)(3) Requirements 13 “[T]he presence of commonality alone [under 23(a)(2)] is not sufficient to fulfill Rule 14 23(b)(3).” Hanlon, 150 F.3d at 1022. Rather, “[t]o qualify for certification under [Rule 23(b)(3)], a 15 class must satisfy two conditions in addition to the Rule 23(a) prerequisites: common questions 16 must ‘predominate over any questions affecting only individual members,’ and class resolution 17 must be ‘superior to other available methods for the fair and efficient adjudication of the 18 controversy.’” Id. (quoting Fed. R. Civ. P. 23(b)(3)). In the instant case, Durham seeks to certify 19 three Rule 23(b)(3) classes and two Rule 23(b)(3) subclasses. 20 1. Predominance 21 Under Rule 23(b)(3), plaintiffs must show “that the questions of law or fact common to 22 class members predominate over any questions affecting only individual members.” Fed. R. Civ. 23 P. 23(b)(3). The Rule 23(b)(3) predominance requirement is “even more demanding” than Rule 24 23(a)'s commonality counterpart. Comcast Corp. v. Behrend, 569 U.S. 27, 34 (2013). 1 representation.” Amchem Products, Inc. v. Windsor, 521 U.S. 591, 623 (1997) (citation omitted). 2 The Ninth Circuit has held that “there is clear justification for handling the dispute on a 3 representative rather than an individual basis” if “common questions present a significant aspect of 4 the case and they can be resolved for all members of the class in a single adjudication.” Hanlon, 5 150 F.3d at 1022. “The predominance inquiry ‘asks whether the common, aggregation-enabling, 6 issues in the case are more prevalent or important than the non-common, aggregation-defeating, 7 individual issues.’” Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442, 453 (2016) (quoting 2 8 William Rubenstein, Newberg on Class Actions, § 4:49 at 196–97 (5th ed. 2012)). “When ‘one or 9 more of the central issues in the action are common to the class and can be said to predominate, 10 the action may be considered proper under Rule 23(b)(3) even though other important matters will 11 have to be tried separately, such as damages or some affirmative defenses peculiar to some 12 individual class members.’” Id. (quoting 7AAC Charles Wright, Arthur Miller & Mary Kay Kane, 13 Federal Practice and Procedure, § 1778 at 123–24 (3d ed. 2005)). 14 The predominance requirement is the biggest hurdle for Durham to meet in his quest for 15 certification of the Unpaid Wages Class (Security Time), Unpaid Wages Class (Controlled Travel 16 Time), and Unpaid Wages Class (Paragraph 5(A) Travel Time). These classes encompass 17 employees who were not paid while (1) waiting at the Security Gate and going through the 18 mandatory entrance and exit security process and (2) traveling down the Access Road. Mot. at 3-8 19 (explaining theories of liability). According to Sachs, Durham fails to meet the predominance 20 requirement. See Opp. at 3-6. To this end, it contends that (1) Durham fails to establish that a 21 common policy or practice will predominate in a class-wide trial, Opp. at 3; (2) Sachs’ alleged 22 searching of employees does not warrant class certification, Opp. at 3-5; and (3) bus riders and 23 carpoolers should be excluded from the class, Opp. at 5-6. 24 Durham’s class certification bid is predicated on Sachs’ security and drive time policies. 1 of the wage and hour laws are of the sort routinely, and properly, found suitable for class 2 treatment.” Brinker Restaurant Corp. v. Superior Court, 53 Cal.4th 1004, 1033 (2012). Durham 3 has presented sufficient evidence, in the form of declarations from eight putative class members, 4 to demonstrate that a Sachs policy exists as to security and drive time. See ECF 90-4-11. The 5 declarations generally state that Sachs management told employees at new hire orientation and 6 worker meetings that they were required to follow numerous rules. These rules included reporting 7 to the Security Gate at start time, following mandatory security exit and entrance procedures, and 8 following road rules during the drive between the Security Gate and the parking lot. The 9 declarations further state that workers were not paid between the Security Gate Entrance and the 10 parking lots. The Court has granted class certification motions in similar circumstances in Huerta 11 v. CSI Elec. Contractors, Inc., No. 18-CV-06761-BLF, 2021 WL 1323425 (N.D. Cal. Mar. 12, 12 2021). 13 Sachs contends that its alleged random searching of employee vehicles does not warrant 14 class certification. Opp. at 3-5. But Sachs misunderstands Durham’s theory of liability. Durham is 15 not alleging that merely “being subject to searches exerts control over employees, warranting 16 compensation.” Opp. at 4. Durham is alleging that time spent by employees waiting for and going 17 through mandatory security processes constitutes “hours worked” and that, because the Security 18 Gate was the first location where Sachs required the class members’ presence, all travel time from 19 the Security Gate to the daily work site and back must be compensated pursuant to Paragraph 5(A) 20 of Wage Order 16. Mot. at 3, 7. Indeed, there is sufficient evidence before the Court that Sachs’ 21 entry and exit security policy entailed not just discretionary car searches, but also the scanning of 22 badges by security guards. See, e.g., Durham Decl. ¶ 16. 23 Despite the existence of common security and drive time policies, the Court finds that 24 there is insufficient evidence that this policy uniformly applied to all employees in the proposed 1 Wages Class (Paragraph 5(A) Travel Time). In particular, the Court credits Sachs’ argument that 2 bus riders should be excluded from these classes. Opp. at 5 (“Plaintiff’s primary argument as to 3 why the Drive is compensable is because employees are required to “report” to the guard shack, 4 roll down their windows, and scan a badge before entering the Project. This is completely absent 5 with employees riding the bus.”). The only evidence properly submitted3 by Durham suggests that 6 bus riding employees were subject to different restrictions than car riding employees. Only one of 7 the declarations provided by Durham is from an employee who rode the bus to work: “At some 8 point, riding that bus was changed from mandatory to optional. During the period of time that the 9 school buses were used, I sometimes drove a bus. When I drove a bus, I was paid for the drive but 10 when I was a passenger in one of the buses, I was not paid.” ECF 90-11 ¶ 6. This statement is the 11 extent of the employee’s recounting of the bus ride. See generally id. Another putative class 12 member—who didn’t even ride the bus— alleges that “[t]here were two lanes for badging and one 13 lane for busses to drive through the Security Gate Entrance without badging. The people on the 14 busses badged in at a bus stop that was not on the Solar Site.” ECF 90-9 ¶ 14; see also Wilkinson 15 Decl., ¶ 16; Babcock Decl., ¶ 7. The Court is also persuaded by Sachs’ argument that employees 16 who opted into riding the bus were able to listen to music, socialize among themselves, and sleep 17 during the drive to the parking lot. See Opp. at 5 (citing Morillion v. Royal Packing Co., 22 Cal. 18 4th 575, 588 (2000)). And Durham’s argument that employees could not conduct any “personal 19 business” while on the bus fails to hold weight in the context of an employee’s voluntary decision 20 to ride the bus to work. Reply at 3. The Court has no meaningful evidence before it about the 21 security process for bus riders, about the first location bus riders were required to show up, or 22 23 3 The Court declines to consider Durham’s eleventh-hour supplemental declaration. Supp. Durham Decl., ECF 94-1. Even ignoring the fact that this declaration is procedurally improper, see United 24 States v. Romm, 455 F.3d 990, 997 (9th Cir.2006) (“[A]rguments not raised by a party in its 1 about the applicability, enforcement, and manifestation of Sachs’ road rules on bus riders. This 2 flaw is significant as these kind of facts would support the core of Durham’s theory of liability as 3 to the three proposed classes. See Mot. at 3-8. Durham had ample space in his briefing to discuss 4 this issue—on which he spent a scant two pages—but, for reasons not apparent to the Court, chose 5 not to do so. The Court highlights one additional flaw with including bus riders in the proposed 6 classes: namely, whether Durham would be able to represent them given the divergence of his 7 experience at the California Flats Solar Project. See Opp. at 5 (citing Rega Decl. ¶ 3). The Court 8 has serious doubts whether such representation would be permissible given there is no evidence 9 Durham ever rode the bus to work. Because including bus riders in the Unpaid Wages Class 10 (Security Time), Unpaid Wages Class (Controlled Travel Time), and Unpaid Wages Class 11 (Paragraph 5(A) Travel Time) undermines class cohesion, the Court declines to so include them. 12 The Court edits the class definitions accordingly. See 7A Charles Alan Wright & Arthur R. Miller, 13 Federal Practice and Procedure § 1759 (3d ed.). 14 The Court will also permit carpoolers to remain in the Unpaid Wages Class (Security 15 Time), Unpaid Wages Class (Controlled Travel Time), and Unpaid Wages Class (Paragraph 5(A) 16 Travel Time). There is sufficient evidence that carpoolers were subject to the same uniform 17 security policy as employees who chose to commute via car solo. Even Sachs acknowledges that 18 the carpoolers had to “stop at the guard shack.” Opp. at 5. There is also sufficient evidence that 19 carpoolers were subject to the restrictions of the Access Road. In sum, the Court finds that the 20 common security and drive time policies evinced by Durham properly encompass carpoolers. 21 2. Superiority 22 To satisfy Rule 23(b)(3), Durham also must demonstrate that “a class action is superior to 23 other available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 24 23(b)(3). Rule 23 lists the following factors that Courts should consider in making this 1 (A) the class members’ interests in individually controlling the prosecution or defense of separate actions; 2 (B) the extent and nature of any litigation concerning the 3 controversy already begun by or against class members; 4 (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and 5 (D) the likely difficulties in managing a class action. 6 Durham argues that class litigation is the superior means of litigating the claims asserted. 7 Mot. at 10. Sachs does not object to the motion on this basis. The Court agrees with Durham and 8 finds a class action here would be the superior method of adjudication. The alternative to class 9 action would likely mean an abandonment of claims by most class members since the amount of 10 individual recovery is relatively small. Cf. Mazza, 254 F.R.D. at 628 (finding superiority when 11 damages were $4,000). As such, the Court finds the superiority requirement met. 12 13 C. Appointment of Lead Counsel 14 Federal Rule of Civil Procedure 23(g)(2) states that: “When one applicant seeks 15 appointment as class counsel, the court may appoint that applicant only if the applicant is adequate 16 under Rule 23(g)(1) and (4). Rule 23(g)(1) requires the court to consider: 17 (i) the work counsel has done in identifying or investigating potential claims in the action; 18 (ii) counsel’s experience in handling class actions, other complex 19 litigation, and the types of claims asserted in the action; (iii) counsel’s knowledge of the applicable law; and 20 (iv) the resources that counsel will commit to representing the class. 21 22 In addition, the court “may consider any other matter pertinent to counsel’s ability to fairly and 23 adequately represent the interests of the class.” Rule 23(g)(4) states that the duty of class counsel 24 is to fairly and adequately represent the interests of the class. 1 Plaintiffs have retained capable counsel with extensive experience in prosecuting wage and 2 hour class actions. See Dion-Kindem Decl. ¶¶ 1–12; Blanchard Decl. ¶¶ 1–10. Accordingly, and 3 without any opposition, the Court finds that the Dion-Kindem Law Firm and the Blanchard Law 4 Group, APC are adequate under Rule 23(g)(1) and (4). 5 IV. ORDER 6 For the foregoing reasons, IT IS HEREBY ORDERED that: 7 1. Plaintiff’s Motion for Class Certification is GRANTED IN PART and DENIED IN 8 PART. The action is certified for the Rule 23(b)(3) Class and Subclasses as to wage 9 and hour claims brought pursuant to the Cal. Labor Code and the UCL. 10 2. Pursuant to Rule 23(c)(1)(B), 11 a. The Unpaid Wages Class (Security Time) is defined as “all non-exempt 12 employees of or worked for Sachs Electric Company who worked on the 13 construction of the California Flats Solar Project at any time within the period 14 from July 25, 2014 through the date of class certification who did not ride the 15 bus and were not paid for all time waiting in line to go through and going 16 through the mandatory exit security process.” 17 b. The Unpaid Wages Class (Controlled Travel Time) is defined as “all non- 18 exempt persons who were employees of or worked for Sachs Electric Company 19 on the construction of the California Flats Solar Project at any time within the 20 period from July 25, 2014 through the date of class certification who did not 21 ride the bus and were not paid for all time traveling from the badging-in 22 location at the security gate to when they began to be paid and from when they 23 stopped being paid to when they arrived back at badging-out location at the 24 1 c. The Unpaid Wages Class (Paragraph 5(A) Travel Time) is defined as “all non- 2 exempt persons who were employees of or worked for Sachs Electric Company 3 on the construction of the California Flats Solar Project at any time within the 4 period from July 25, 2014 through the date of class certification who did not 5 ride the bus and were not paid for all time traveling from the badging-in 6 location at the security gate to when they began to be paid and from when they 7 stopped being paid to when they arrived back at badging-out location at the 8 security gate.” 9 d. The Termination Pay Subclass is defined as “all member of Class 1, 2, or 3 10 whose employment with Sachs Electric Company terminated within the period 11 beginning July 25, 2015 to the date of class certification.” 12 e. The Wage Statement Subclass is defined as “all member of Class 1, 2, or 3 13 whose received wage statements from Sachs Electric Company during the 14 period beginning July 25, 2017 to the date of class certification.” 15 3. The class issues are (1) Whether any of the exit Security Time constituted 16 compensable “hours worked” under California law; (2) Whether the Travel 17 Time between the Security Gate and the parking lots constituted compensable 18 “hours worked” under California law; and (3) Whether the Security Gate was 19 the “first location where the employee’s presence is required” for purposes of 20 Paragraph 5(A) of Wage Order 16. 21 4. The Court appoints William Durham as the class representative. 22 5. Pursuant to Rule 23(g), the Court appoints the Dion-Kindem Law Firm and the 23 Blanchard Law Group, APC as co-class counsel. 24 6. Counsel are directed to meet and confer concerning the manner, form and 1 proposal concerning the same to the Court in writing no later than September 2 15, 2021. 3 4 || Dated: August 20, 2021 kom Lh hamas 5 BETH LABSON FREEMAN United States District Judge 6 7 8 9 10 11 12 14 Z 16 17 18 19 20 21 22 23 24 25