Stickles v. Atria Senior Living, Inc. ( 2021 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 NORTHERN DISTRICT OF CALIFORNIA 8 9 10 GEORGE STICKLES and MICHELE RHODES, 11 No. C 20-09220 WHA Plaintiffs, 12 v. 13 ORDER RE MOTION TO ATRIA SENIOR LIVING, INC. and ATRIA CERTIFY CLASS 14 MANAGEMENT COMPANY, LLC, 15 Defendants. 16 17 INTRODUCTION 18 In this wage-and-hour action, plaintiff George Stickles alleges defendants misclassified 19 his position as exempt from California overtime, meal break, and rest break rules under the 20 outside salesperson exemption. Plaintiff Stickles seeks to certify a class of former and current 21 employees in the same position whom defendants classified as exempt outside salespersons. 22 For the reasons that follow, this order CERTIFIES the following class: CSDs who did not sign 23 arbitration agreements and whom defendants classified as exempt outside salespersons from 24 the date plaintiff Stickles began his employment with defendants through September 29, 2019. 25 For now, certification applies solely to this issue: whether defendants properly classified CSDs 26 as exempt outside salespersons. Certification of the underlying wage-and-hour claims is HELD 27 A . 1 STATEMENT 2 Plaintiffs George Stickles and Michele Rhodes each worked as a “Community Sales 3 Director” for defendants, Atria Senior Living, Inc. and Atria Management Company, LLC. 4 Plaintiff Stickles worked for defendants from April 2018 to August 2018, and plaintiff Rhodes 5 worked for defendants from October 2019 to April 2020. Defendants were affiliated entities 6 that operated 46 senior living communities throughout California. Defendants leased living 7 spaces at their communities to senior citizens. 8 Each community employed at least one full-time CSD like plaintiffs. The job description 9 that plaintiffs signed provided, in part, the following essential functions of the CSD position: 10 • Primarily focused on sales activities outside the community by making sales calls to potential residents, referral sources 11 and other resources. 12 • Meet or exceed weekly company/community sales standards. 13 • Respond to telephone inquiries, remotely and in real time 14 where possible, and conduct walk-in and scheduled tours with prospective residents or interested parties. 15 • Develop and maintain relationships with any and all 16 potential referral sources and conduct on-going field visits. 17 (Stickles Dep., Exh. 5; Rhodes Dep., Exh. 6). Defendants had CSDs sign this job description 18 until September 30, 2019. On that date, defendants updated the CSD job description (Bedell 19 Dep., Exh. 2 at 2). 20 CSDs reported to and were supervised by the executive directors at their respective 21 communities. CSDs’ ultimate goal was to attract seniors to their living communities. CSDs 22 had to record all their sales activities every day in a “Customer Relationship Management” 23 database by choosing from a common set of categories. This common database did not track 24 CSD hours, but it did track each individual CSD’s daily activities. Defendants paid flat 25 salaries to CSDs, and defendants paid commissions to CSDs based on total company revenue. 26 Defendants did not pay CSDs for overtime and did not provide CSDs with meal or rest breaks. 27 But because defendants classified CSDs as “outside salespersons,” CSDs were exempt from 1 Like the putative class members he seeks to represent, plaintiff Stickles earned a flat 2 salary and was not provided overtime pay, meal breaks, or rest breaks. Although plaintiff 3 Stickles did not sign an arbitration agreement, 49 of the approximately 154 CSDs whom 4 defendants classified as exempt during the proposed class period signed arbitration agreements. 5 Thus, plaintiff Stickles alleges violations of California’s meal break, rest break, and 6 overtime compensation rules. Cal. Lab. Code §§ 226.7, 510, 512, 1194. Plaintiff Stickles also 7 makes derivative claims for wage statement and waiting time penalties. Id. §§ 201, 202, 203, 8 226. 9 Plaintiff Michele Rhodes, however, signed an arbitration agreement. The parties filed a 10 joint stipulation stating that plaintiff Rhodes agreed to dismiss her individual and class claims 11 due to the arbitration agreement. The parties also filed a first amended complaint reflecting 12 this change. Now, she brings only a representative claim under the Private Attorney General 13 Act of 2004 for civil penalties based on overtime, meal break, rest break, and wage statement 14 violations resulting from her alleged misclassification. Cal. Lab. Code § 2698, et seq. 15 Thus, for the remainder of this order, “plaintiff” refers only to plaintiff George Stickles. 16 In the instant motion, plaintiff seeks to certify a class of “[a]ll persons employed by 17 Defendants in the position of Community Sales Director in California and classified as exempt 18 from December 18, 2016 through December 31, 2019 who did not execute an arbitration 19 agreement with Defendants” (Proposed Ord. 1). This order follows full briefing and a 20 telephonic hearing. 21 For the reasons that follow, this order CERTIFIES the following class: CSDs who did not 22 sign arbitration agreements and whom defendants classified as exempt outside salespersons 23 from the date plaintiff began his employment with defendants through September 29, 2019. 24 For now, certification applies solely to this issue: whether defendants properly classified 25 CSDs as exempt outside salespersons. We will revisit possible certification of the underlying 26 wage-and-hour claims after we resolve the certified issue. At that point, the Court will be 27 better informed to determine how plaintiff might establish class-wide overtime liability. 1 Accordingly, certification of the meal break, rest break, overtime, wage statement, and waiting 2 time claims is HELD IN ABEYANCE. 3 ANALYSIS 4 Certification of a class action is governed by FRCP 23. Plaintiff must show that the 5 proposed class action satisfies each of the four prerequisites of FRCP 23(a) and one of the 6 three requirements of FRCP 23(b). FRCP 23(a) requires plaintiff to show: 7 (1) the class is so numerous that joinder of all members is impracticable; 8 (2) there are questions of law or fact common to the class; 9 (3) the claims or defenses of the representative parties are typical 10 of the claims or defenses of the class; and 11 (4) the representative parties will fairly and adequately protect the interests of the class. 12 In addition, plaintiff seeks certification under FRCP 23(b)(3), which requires he show: 13 the questions of law or fact common to class members predominate 14 over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and 15 efficiently adjudicating the controversy. 16 A district court must do a rigorous analysis to determine if the requirements of FRCP 23 17 are satisfied. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350–51 (2011). “Frequently that 18 rigorous analysis will entail some overlap with the merits of the plaintiff’s underlying claim. 19 That cannot be helped. The class determination generally involves considerations that are 20 enmeshed in the factual and legal issues comprising the plaintiff’s cause of action.” Id. at 351 21 (cleaned up). 22 1. NUMEROSITY. 23 The proposed class is “[a]ll persons employed by Defendants in the position of 24 Community Sales Director in California and classified as exempt from December 18, 2016 25 through December 31, 2019 who did not execute an arbitration agreement with Defendants” 26 (Proposed Ord. 1). Of the approximately 154 CSDs whom defendants classified as exempt 27 during the proposed class period, only 49 signed arbitration agreements (Dkt. No. 31-2, Exh. 5, 1 we certify today — the time period for which is approximately half that of the proposed class 2 — likely exceeds fifty individuals. Numerosity is satisfied. 3 2. COMMONALITY. 4 The commonality element requires that there be a common contention among all class 5 members which is “of such a nature that it is capable of classwide resolution—which means 6 that determination of its truth or falsity will resolve an issue that is central to the validity of 7 each one of the claims in one stroke.” Wal-Mart Stores, 564 U.S. at 350. 8 Here, the common misclassification contention is necessarily central to the class 9 members’ claims because no class member can recover if defendants’ classification of CSDs 10 was proper. And defendants rely on the classification of CSDs as exempt outside salespersons 11 as an affirmative defense to all of plaintiff’s wage-and-hour claims (Dkt. No. 28 at 12). 12 Defendants do not argue that commonality is not satisfied. Commonality is satisfied. 13 3. TYPICALITY. 14 Typicality requires that the “claims or defenses of the representative parties are typical of 15 the claims or defenses of the class.” FRCP 23(a)(3). “The test of typicality is whether other 16 members have the same or similar injury, whether the action is based on conduct which is not 17 unique to the named plaintiffs, and whether other class members have been injured by the same 18 course of conduct.” Wolin v. Jaguar Land Rover N. Am., LLC, 617 F.3d 1168, 1175 (9th Cir. 19 2010). “‘Typicality refers to the nature of the claim or defense of the class representative, and 20 not to the specific facts from which it arose or the relief sought.’” Hanon v. Dataproducts 21 Corp., 976 F.2d 497, 508 (9th Cir. 1992) (citation omitted). “Under [FRCP 23(a)(3)]'s 22 permissive standards, representative claims are ‘typical’ if they are reasonably co-extensive 23 with those of absent class members; they need not be substantially identical.” Hanlon v. 24 Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998). “The commonality and typicality 25 requirements of [FRCP] 23(a) tend to merge.” Gen. Telephone Co. of Sw. v. Falcon, 457 U.S. 26 147, 157 n. 13 (1982). 27 Here, plaintiff’s defining contention is that defendants improperly classified him as an 1 not argue that plaintiff’s claims are unique from those of the class or that defendants would 2 have defenses unique to some class members. Rather, defendants assert that plaintiff’s 3 experience was different than that of the putative class members. Specifically, defendants 4 argue that plaintiff engaged in outside sales activities far less than the putative class members 5 did, which defeats typicality (Opp. 22). 6 But defendants allegedly injured both plaintiff and the putative class members by failing 7 to provide them with overtime pay, meal breaks, and rest breaks. This alleged injury arose 8 from defendants’ conduct of classifying plaintiff and the putative class members as exempt. 9 Thus, plaintiff and the putative class members allege the same injury arising from the same 10 conduct. Although there may be some differences between plaintiff’s experiences and those of 11 the putative class members, plaintiff’s claims are reasonably co-extensive with those of the 12 putative class members. Typicality is satisfied. 13 4. ADEQUACY. 14 The final requirement of FRCP 23(a) is that the class representative fairly and adequately 15 protect the interests of the class. Thus, the representative plaintiff and class counsel cannot 16 have conflicts of interest with the putative class members and must prosecute the action 17 vigorously on behalf of the class. Staton v. Boeing Co., 327 F.3d 938, 957 (9th Cir. 2003). 18 Here, plaintiff’s lead counsel submitted a declaration describing his qualifications and 19 extensive experience in wage-and-hour litigation, including serving as class counsel in 20 numerous wage-and-hour cases (Hayes Decl. ¶ 20). His law partner also has extensive 21 experience in wage-and-hour litigation and would serve as class counsel (ibid.). 22 Thus far, plaintiff’s counsel has vigorously litigated this case. In support of the instant 23 motion, plaintiff’s counsel deposed two of defendants’ employees who hold the position of 24 “Vice President of Sales” (Bedell Dep.; Floyd Dep.) and one employee in defendants’ 25 “Business Optimization Team” who helped to create the commission and bonus plan 26 documents that apply to all CSDs in California (Heffernan Dep. 13–14). Plaintiff’s counsel 27 also retained an expert, Dr. Brian Kriegler, Ph.D. statistics, who used defendants’ Customer 1 Relationship Management database to provide statistics on the activities that CSDs performed 2 between January 2017 and December 2019 (Krieger Decl. ¶¶ 8–10). 3 Plaintiff submitted a declaration stating that he understands his duty to always consider 4 “the best interests of the class before his own” and to actively participate in the lawsuit 5 (Stickles Decl. ¶ 11). He also declared that he has no conflicts of interest with the putative 6 class members (id. ¶ 13). 7 But plaintiff is adequate to represent only those CSDs who did not sign arbitration 8 agreements and whom defendants classified as exempt from his first date of employment 9 through September 29, 2019, as follows. A signature on a job description is unnecessary to 10 bind an employee to its terms. What is necessary, however, is that the employee is on notice of 11 the job description and continues to work for his employer, thereby assenting to the job 12 description. Here, plaintiff could not have been on notice of the updated job description 13 because he was not a CSD on or after the date of the update (September 30, 2019) (Stickles 14 Decl. ¶ 2). Thus, there is no plaintiff adequate to represent CSDs classified as exempt on or 15 after September 30, 2019. 16 Defendants have pointed to no reason to believe that plaintiff’s counsel has any conflicts 17 of interest with the putative class members or that plaintiff and plaintiff’s counsel would not 18 vigorously prosecute this action on behalf of the certified class; this order finds none. 19 Adequacy of representation is satisfied. 20 5. FRCP 23(B)(3). 21 To certify a class under FRCP 23(b)(3), plaintiff must show that “the questions of law or 22 fact common to the class members predominate over any questions affecting only individual 23 members, and that a class action is superior to other available methods for fairly and efficiently 24 adjudicating the controversy.” “The Rule 23(b)(3) predominance inquiry tests whether 25 proposed classes are sufficiently cohesive to warrant adjudication by representation.” Amchem 26 Prods., Inc. v. Windsor, 521 U.S. 591, 623 (1997). “This analysis presumes that the existence 27 of common issues of fact or law have been established pursuant to Rule 23(a)(2); thus, the 1 23(a)(2), Rule 23(b)(3) focuses on the relationship between the common and individual 2 issues.” Hanlon, 150 F.3d at 1022. Underlying both predominance and superiority is “a 3 concern for judicial economy.” Wolin, 617 F.3d at 1176. 4 Our court of appeals has held that, while an employer’s policy of uniformly classifying a 5 group of employees as exempt outside salespersons is a relevant factor in the FRCP 23(b)(3) 6 analysis, “it is an abuse of discretion to rely on such policies to the near exclusion of other 7 relevant factors touching on predominance.” In re Wells Fargo Home Mortg. Overtime Pay 8 Litig., 571 F.3d 953, 955 (9th Cir. 2009). 9 Our court of appeals has also recognized, however, that class certification is appropriate 10 where a plaintiff shows “(a) company-wide policies governing how employees spend their 11 time, or (b) uniformity in work duties and experiences that diminish the need for individualized 12 inquiry.” Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935, 947 (9th Cir. 2009) (citation 13 omitted). 14 Here, plaintiff argues that there is sufficient uniformity in work duties and experiences 15 among CSDs to diminish the need for individualized inquiries (Br. 19; Reply Br. 3–8), and 16 there is common proof of the actual work that CSDs performed (Reply Br. 8–10). 17 A. THE OUTSIDE SALESPERSON EXEMPTION. 18 Before addressing the predominance inquiry, this order must discuss the outside 19 salesperson exemption. Under California law, employees who are “outside salespersons” are 20 exempt from meal break, rest break, and overtime protections. Cal. Lab. Code §§ 226.7(e), 21 1171. An “outside salesperson” is an employee who: 22 customarily and regularly works more than half the working time away from the employer’s place of business selling tangible or 23 intangible items or obtaining orders or contracts for products, services or use of facilities. 24 Wage Order 7-2001 § 2(J) (Cal. Indus. Welfare Comm’n 2001) (codified at Cal. Code Reguls. 25 tit. 8 § 11070). 26 The California Division of Labor Standards Enforcement, the state agency charged with 27 enforcing the wage orders, has explained the rationale behind the exemption: Outside salesman have historically been exempt because it’s very 1 difficult to control their hours and working conditions. They set their own time, and they’re on the road, they call on their 2 customers. Rarely do you know what they’re doing on an hour-to- hour basis. 3 Opinion Letter on Applicability of Outside Salesperson Exemption to Tract Homes 4 Salespersons (Sep. 8, 1998), available at https://www.dir.ca.gov/dlse/opinions/1998-09-08.pdf. 5 Regarding the federal counterpart to the California exemption, the Tenth Circuit has 6 explained: 7 The reasons for excluding an outside salesman are fairly apparent. 8 Such salesman, to a great extent, work individually. There are no restrictions respecting the time he shall work and he can earn as 9 much or as little, within the range of his ability, as his ambition dictates. In lieu of overtime, he ordinarily receives commissions as 10 extra compensation. He works away from his employer’s place of business, is not subject to the personal supervision of his employer, 11 and his employer has no way of knowing the number of hours he works per day. To apply hourly standards primarily devised for an 12 employee on a fixed hourly wage is incompatible with the individual character of the work of an outside salesman. 13 Jewel Tea Co. v. Williams, 118 F.2d 202, 207–08 (10th Cir. 1941). 14 In Ramirez v. Yosemite Water Co., Inc., 20 Cal. 4th 785 (1999), the California Supreme 15 Court set forth the authoritative construction of the state outside salesperson exemption. The 16 Ramirez decision contrasted the state exemption with the federal counterpart and described the 17 relevant inquiry: 18 19 [T]he federal exemption focuses on defining the employee’s “primary function,” not on how much work time is 20 spent selling. Although the federal exemption does place a 20 percent cap on nonexempt (i.e., nonsales) work, that cap does not 21 apply to any nonsales activities that are “incidental” to outside sales, including the making of deliveries. In other words, so long 22 as it can be shown that the individual’s chief duty or primary function is making sales, then every activity in any way incidental 23 to sales may be funneled into the exempt category and excluded from the 20 percent cap on nonexempt work. 24 Wage Order No. 7-80, on the other hand, makes no 25 mention of the primary function for which the person is employed. Rather, the state regulation takes a purely quantitative approach, 26 focusing exclusively on whether the individual “works more than half the working time . . . selling . . . or obtaining orders or 27 contracts.” State law also differs from the federal regulation in that it does not contain any provision that reclassifies intrinsically incidental to sales. The language of the state exemption only 1 encompasses work directly involved in “selling . . . items or obtaining orders or contracts.” 2 * * * 3 Having recognized California’s distinctive quantitative 4 approach to determining which employees are outside salespersons, we must then address an issue implicitly raised by 5 the parties . . . Is the number of hours worked in sales-related activities to be determined by the number of hours that the 6 employer, according to its job description or its estimate, claims the employee should be working in sales, or should it be 7 determined by the actual average hours the employee spent on sales activity? The logic inherent in the IWC’s quantitative 8 definition of outside salesperson dictates that neither alternative would be wholly satisfactory. On the one hand, if hours worked on 9 sales were determined through an employer’s job description, then the employer could make an employee exempt from overtime laws 10 solely by fashioning an idealized job description that had little basis in reality. On the other hand, an employee who is supposed 11 to be engaged in sales activities during most of his working hours and falls below the 50 percent mark due to his own substandard 12 performance should not thereby be able to evade a valid exemption. A trial court, in determining whether the employee is 13 an outside salesperson, must steer clear of these two pitfalls by inquiring into the realistic requirements of the job. In so doing, the 14 court should consider, first and foremost, how the employee actually spends his or her time. But the trial court should also 15 consider whether the employee’s practice diverges from the employer’s realistic expectations, whether there was any concrete 16 expression of employer displeasure over an employee’s substandard performance, and whether these expressions were 17 themselves realistic given the actual overall requirements of the job. 18 Id. at 797, 801–02 (1999) (citations omitted). “Considerations such as ‘the employer’s realistic 19 expectations’ and ‘the actual overall requirements of the job’ are likely to prove susceptible of 20 common proof.” Sav-On Drug Stores, Inc. v. Super. Ct., 34 Cal. 4th 319, 337 (2004) (citation 21 omitted). 22 Although the Ramirez opinion states how courts must determine the number of hours 23 employees spend on outside sales activities, the opinion does not give clear guidance on what 24 constitutes a sale. D’Este v. Bayer Corp., 565 F.3d 1119, 1123 (9th Cir. 2009). Neither do the 25 California wage orders nor our court of appeals provide further definitions for what constitutes 26 a sale. Ibid. In Bayer Corp., a class action involving misclassification of employees, the 27 plaintiff argued that employees must “consummate their own sales” to be considered outside 1 salespersons. Ibid. By contrast, the defendant argued that employees who “engage in any part 2 of the multiple-step process of selling or obtaining orders,” regardless of whether they close 3 sales or receive orders, are exempt outside salespersons. Ibid. Our court of appeals found that 4 “the plain language of the [outside salesperson exemption] is susceptible to both 5 interpretations.” Ibid. Ultimately, our court of appeals declined to rule on the issue of what 6 constitutes a sale and certified the issue to the California Supreme Court. Id. at 1124. The 7 California Supreme Court declined to take up the question. D’Este v. Bayer Corp., No. 8 S172832 (June 10, 2009), docket available at 9 https://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=0&doc_id=1907570&doc 10 _no=S172832&request_token=NiIwLSEmTkg9WzBRSCM9XEtIQFQ0UDxfJCI%2BJzlTUC 11 AgCg%3D%3D. 12 In the absence of binding authority elaborating on the definition of sale after the Ramirez 13 decision, this order finds useful the opinion in Barnick v. Wyeth, 522 F. Supp. 2d 1257 (C.D. 14 Cal. October 25, 2007) (Judge Stephen V. Wilson). In Barnick, the plaintiff brought a class 15 action against the defendant pharmaceutical company, claiming the defendant misclassified 16 certain employees as exempt under the outside salesperson exemption. Id. at 1258–60. The 17 district court stated the following regarding what constitutes a sale: 18 If an employee directs his efforts at persuading a particular customer to purchase a product and is compensated on the basis of 19 his success in doing so then the employee is clearly engaged in sales activity and not mere general promotion of the product. 20 Whether or not the employee at the close of the conversation requests some sort of commitment rather than leaving the customer 21 to make that decision at a later time should not by itself transform the general nature of the employee's efforts from sales to 22 promotion. This is particularly so when, as in the case, it has not been alleged that any other employee will affirmatively make 23 further contact with the customer to consummate the sale. The distinction between sales and promotion is more logically made 24 dependent on whether an employee's efforts are directed at persuading particular individuals to purchase a product rather than 25 the general public and whether an employee is compensated based on the employee's success in securing purchases from particular 26 individuals. 27 Id. at 1264–65. The district court classified the plaintiff as an exempt outside salesperson 1 sales training at sales conferences, he solicited new business, and his pay was based partially 2 on sales he generated. Id. at 1263. Although the plaintiff was engaged in only indirect sales of 3 pharmaceutical products to physicians, the district court noted that physicians “control the 4 product’s ultimate purchase” and are “appropriately the target for sales efforts and 5 appropriately considered [defendant]’s customers.” Id. at 1264. 6 The Barnick decision aligns with the Ramirez decision. The California Supreme Court 7 stated that sales activity encompasses work “directly involved in ‘selling . . . items or obtaining 8 orders or contracts.’” Ramirez, 20 Cal. 4th at 797 (emphasis added). Work that is merely 9 “incidental to sales” is not classified as exempt under California law. Ibid. (emphasis in 10 original). Similarly, Judge Wilson stated that whether an employee’s efforts are “directed at 11 persuading particular individuals to purchase a product” is central to the distinction between 12 sales and promotion. Barnick, 522 F. Supp. 2d at 1265 (emphasis added). This order will use 13 the Barnick decision to aid its analysis below. 14 B. COMMON QUESTIONS PREDOMINATE AS TO THE CLASSIFICATION ISSUE. 15 “When appropriate, an action may be brought or maintained as a class action with respect 16 to particular issues.” FRCP 23(c)(4). Issue certification is appropriate when “adjudication of 17 the certified issues would significantly advance the resolution of the underlying case, thereby 18 achieving judicial economy and efficiency.” Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 19 1229 (9th Cir. 1996). A court may consider other methods, such as procedural alternatives, for 20 adjudicating the claims in a case. See id.; 2 Newberg on Class Actions § 4:91 (5th ed. 2021). 21 Issue certification requires that common questions predominate over individual questions with 22 respect to only the specific issue that is certified. Valentino, 97 F.3d at 1234. 23 (i) Company-wide Policies Governed How CSDs Spent Their Time. 24 Here, the classification issue is a common issue susceptible of common proof. Below is 25 a list of uniform, company-wide policies that governed how CSDs spent their work time: 26 • CSDs had to work full-time for at least five consecutive days 27 each week (Bedell Dep. 28). 1 • CSDs had to be available to respond to inquiries between 7:00 2 a.m. and 9:00 p.m. (Bedell Dep. 158). 3 • CSDs had to respond within four hours of receiving an inquiry 4 (Bedell Dep. 158). 5 • CSDs had to record all their sales activities in a common 6 database every day by choosing from a common set of 7 categories (Floyd Dep. 110). 8 • CSDs had targets for the number of sales calls they had to 9 make each week (Bedell Dep. 60, 64). 10 • CSDs had to provide tours at the communities to prospective 11 residents (Floyd Dep. 98). 12 • CSDs had common guidelines for how they could structure 13 their workdays (Dkt. No. 31-2, Exh. 11). 14 Further, the job description that plaintiff signed stated that all CSDs must develop 15 relationships with potential referral sources by conducting field visits (Stickles Dep., Exh. 5). 16 These referral sources included health care providers, persons at trade shows and networking 17 events, real estate agents, and local organizations (Bedell Dep. 39, 41, 49). Regional vice 18 presidents advised CSDs that “the best way to lease apartments was to get professional 19 referrals” (Rhodes Dep. 79). 20 There is common evidence of whether CSD interactions with referral sources constituted 21 sales: none of the referral sources controlled the market for move-ins (see Bedell Dep. 40–41, 22 75–76), and the referral sources did not pay defendants for living spaces at the communities 23 (id. at 75–76). Rather, defendants hoped that, by fostering relationships with referral sources, 24 the referral sources would recommend defendants’ living communities to seniors (id. at 41). 25 (ii) CSDs Had Uniform Work Duties and Experiences. 26 In addition, the common proof that plaintiff offers, including the CSD job description, the 27 depositions of two of defendants’ vice presidents of sales (Melanie Bedell and Jamie Floyd), 1 establishes the following uniform work duties and experiences that will allow class-wide 2 adjudication of the classification issue: 3 • All CSDs reported to and were supervised by executive 4 directors (Bedell Dep. 15–16). 5 • CSDs underwent uniform standardized training upon hiring 6 (Bedell Dep. 113). 7 • CSDs received flat salaries and were subject to a uniform 8 commission and bonus plan (Heffernan Dep. 15–16). 9 • CSDs received commissions based on total company revenue 10 — not based on their personal involvement in securing new 11 customers (Floyd Dep. 103). 12 • When CSDs secured move-in commitments, other non-CSD 13 employees always made further contact with customers to 14 consummate sales by providing and executing lease documents 15 (Bedell Dep. 89–90). 16 • CSDs were subject to uniform policies and procedures for 17 responding to inquiries and conducting tours (Floyd Dep. 16– 18 17; Bedell Dep. 23–24). 19 • CSDs were expected to never involve themselves in the lease- 20 signing process (Bedell Dep. 90). 21 • CSDs were assigned offices at the communities and had to give 22 notice whenever they left the communities (Bedell Dep. 31, 23 121–22). 24 • Defendants never disciplined CSDs for spending less than a 25 majority of their time on outside sales activities (Bedell Dep. 26 75). 27 1 • More than 57 percent of CSD workweeks in the common 2 database included three or more days with at least one entry for 3 a community tour (Kriegler Decl. ¶ 10). 4 • More than ninety percent of CSD workweeks in the common 5 database had no entries for visits to seniors at homes, hospitals, 6 or rehabilitation facilities (Kriegler Decl. ¶ 10). 7 This order stresses that its finding of predominance does not rest solely on defendants’ 8 uniform exemption policy. Rather, defendants’ company-wide policies and uniform duties for 9 CSDs are examples of “centralized rules . . . suggest[ing] a uniformity among employees that 10 is susceptible to common proof.” In re Wells Fargo, 571 F.3d at 958–59. There was 11 “standardized hierarchy, standardized corporate policies and procedures governing employees, 12 uniform training programs, and other factors susceptible to common proof.” Vinole, 571 F.3d 13 at 946. And the common database will aid our determination of how much time CSDs actually 14 spent on different types of work activities, such as “deposit,” “lease signing,” “professional 15 sales call,” “home visit,” and “hospital/rehab visit” (see Floyd Dep., Exh. 5). Thus, there is 16 sufficient common proof of defendants’ “realistic requirements” to resolve the classification 17 issue on a class-wide basis. Ramirez, 20 Cal. 4th at 802. 18 C. ADJUDICATION OF THE CLASSIFICATION ISSUE WILL SIGNIFICANTLY ADVANCE RESOLUTION OF THE CASE. 19 The classification issue is necessarily central to plaintiff’s claims, and one of defendants’ 20 affirmative defenses relies on this issue. Thus, adjudication of the classification issue will 21 significantly advance resolution of this case as a whole. 22 D. THERE ARE NO SUPERIOR PROCEDURAL ALTERNATIVES. 23 There are no superior procedural alternatives to certification of a class of CSDs with 24 respect to the classification issue. As shown above, common questions predominate and class- 25 wide adjudication will enhance judicial economy, so a class action is superior to individual 26 actions. Moreover, the class members’ individual monetary claims are small relative to the 27 1 costs of litigating them, which weighs in favor of trying them on a class-wide basis rather than 2 on an individual basis. 3 E. DEFENDANTS’ ARGUMENTS CHALLENGING PREDOMINANCE AND SUPERIORITY ARE UNPERSUASIVE. 4 Defendants’ primary response to plaintiff’s motion for class certification is that variation 5 in individual CSD experiences refutes predominance, and the CSD job description does not 6 serve as common proof (Opp. 11). On this point, our court of appeals has stated: 7 Where . . . there is evidence that the duties of the job are largely 8 defined by comprehensive corporate procedures and policies, district courts have routinely certified classes of employees 9 challenging their classification as exempt, despite arguments about ‘individualized’ differences in job responsibilities. 10 In re Wells Fargo, 571 F.3d at 958 (citation omitted). Thus, although this order acknowledges 11 that there may be variation in the actual work performed by CSDs, the company-wide policies 12 and uniform work duties discussed above show there are “comprehensive procedures and 13 policies” in place allowing class-wide adjudication of this matter. Ibid. (citation omitted). 14 And plaintiff has also presented common proof of how CSDs actually spent their time in the 15 form of statistics. 16 Further, defendants argue that common questions do not predominate because the 17 common database did not track CSD time, so it is impossible to determine how much time 18 CSDs actually spent on outside sales activities without resorting to individual inquiries (Opp. 19 14). And defendants argue that plaintiff’s expert did not have a methodology for tracking CSD 20 time, and the average and weekly frequencies of CSD work amount to “pure speculation” (id. 21 at 16). The relevant inquiry under Ramirez, however, is not how the employee actually spends 22 his or her time but the “realistic requirements” of the job. 20 Cal. 4th at 802. Although the 23 way an employee actually spends his or her time is, perhaps, the most probative indicator of 24 the realistic requirements of the job, the employer’s realistic expectations and the actual overall 25 requirements of the job are also relevant. Ibid. Here, there is sufficient common proof to 26 determine defendants’ realistic expectations and the actual overall requirements for the CSD 27 position. These primary determinations will permit a finding of the realistic requirements of 1 the CSD position for purposes of the classification issue. And although the Ramirez decision 2 cautions against using averages to determine employee classification, this order stresses that it 3 does not rely solely on statistics in concluding that common issues predominate. The statistics 4 that plaintiff’s expert provided merely support the conclusion here. 5 In addition, defendants provide numerous unavailing reasons for why plaintiff’s expert 6 performed an unreliable analysis of the CSD data (Opp. 15). Defendants argue that plaintiff’s 7 expert did not analyze CSD entries for “assessment,” but deposition testimony reveals that 8 performing an “assessment” is not part of the CSD job duties (Bedell Dep. 89, 162). 9 Defendants also argue that the expert’s analysis omits “most of the non-outside sales tasks 10 recorded in the data,” but defendants do not provide any examples of such tasks (Opp. 16) 11 (emphasis in original). Further, defendants argue that the data is inherently flawed because 12 defendants did not require CSDs to record networking events, trade shows, and various 13 meetings in the common database (ibid. n. 7). But it is unlikely that these types of events 14 qualified as outside sales activities, as these events seem to have involved only indirect sales 15 opportunities (see Bedell Dep. 38–39). Additionally, defendants argue that the expert’s 16 analysis is flawed because it contains entries by CSDs who signed arbitration agreements 17 (Opp. 17). Yet defendants do not explain how the inclusion of this data makes the analysis 18 unreliable. Defendants do not assert that there was any difference in duties between CSDs who 19 signed arbitration agreements and those who did not. 20 Defendants also argue that, unlike in Troyer v. The Yerba Mate Co., LLC, in which the 21 employer maintained a software application that tracked employee hours, here, the common 22 database did not track CSD hours. No. 20-06065, 2021 WL 2662109 at *7 (N.D. Cal. June 29, 23 2021). Troyer did not hinge on the amount of time data available. Rather, the Troyer decision 24 rested on company-wide policies governing how employees spent their time and common 25 proof of uniform work experiences. So too here. The lack of time data does not preclude class 26 certification because there are sufficient company-wide policies and common proof of uniform 27 work duties and experiences to resolve the classification issue. 1 Finally, defendants’ argument that plaintiff's failure to submit a trial plan precludes class 2 certification is meritless. Defendants assert that our court of appeals vacated the certification 3 order in Valentino because the plaintiffs did not show “how the class trial could be conducted.” 4 97 F.3d at 1234. That is not true. The underlying reason for vacating the order was that it was 5 “silent as to any reason why common issues predominate[d] over individual issues... .” 6 Valentino, 97 F.3d at 1234. Moreover, our court of appeals has clarified that the Valentino 7 decision did not consider failure to adopt a trial plan at class certification an abuse of 8 discretion. Chamberlan v. Ford Motor Co., 402 F.3d 952, 961 n. 4 (9th Cir. 2005). Because 9 plaintiff has demonstrated that common questions predominate here, plaintiffs failure to 10 provide a trial plan is not fatal. 11 Predominance and superiority are satisfied. 12 CONCLUSION 5 13 A class of CSDs who did not sign arbitration agreements and whom defendants classified 14 as exempt outside salespersons from the date plaintiff Stickles began his employment with 3 15 defendants through September 29, 2019 is CERTIFIED. For now, certification applies solely to 16 this issue: whether defendants properly classified CSDs as exempt outside salespersons. 3 17 Plaintiff George Stickles is APPOINTED representative of the class. 18 Hayes Pawlenko LLP is APPOINTED counsel for the class. 19 WITHIN TWO WEEKS OF THIS ORDER, the parties shall file a joint proposed class notice 20 together with a plan of distribution and timeline for opt out. The proposed notice should 21 conform to FRCP 23(c)(2)(B). 22 23 IT IS SO ORDERED. 24 25 Dated: December 27, 2021. LAs Pee 27 ~ WILLIAM ALSUP 28 UNITED STATES DISTRICT JUDGE