DocketNumber: Case No. 5:12-cv-004344-PSG
Citation Numbers: 308 F.R.D. 245
Judges: Grewal
Filed Date: 2/24/2015
Status: Precedential
Modified Date: 11/26/2022
ORDER GRANTING MOTION FOR CLASS CERTIFICATION
(Re: Docket No. 143)
Each weekday, 139,582 people ride the Santa Clara Valley Transportation Authority’s bus and light rail train system.
Whatever their ultimate success on the merits, the substantial record compiled by the parties shows that Plaintiffs meet the requirements for class certification.
I.
“The class action is ‘an exception to the usual rule that litigation is conducted by
Here, Plaintiffs seek certification pursuant to Rule 23(b)(3), the predominance standard.
In evaluating whether a party has met the requirements of Rule 23, “Rule 23 does not set forth a mere pleading standard.”
Over three hundred and eighty bus and train operators perform public transit services for VTA each day.
Throughout the proposed class period, VTA has used Trapeze, a computer software suite, to design schedules for its bus and light rail operators.
Plaintiffs allege that VTA’s compensation system does not pay operators for “all (1) split-shift travel time, (2) turn-in time, (3) bulletin time, (4) meeting time, (5) pre-depar-ture time and (6) all time actually spent driving.”
Plaintiffs now request that the court certify a class with request to these causes of action of “[a]ll individuals who are currently employed, or formerly have been employed, by the Santa Clara Valley Transportation Authority as a bus or train operator at any time on or after August 17, 2009.”
II.
This court has jurisdiction under 28 U.S.C. §§ 1331 and 1338. The parties further consented to the jurisdiction of the undersigned magistrate judge under 28 U.S.C. § 636(c) and Fed. R. Civ. P. 72(a).
III.
At issue is whether Plaintiffs’ proposed class should be certified. Because Plaintiffs
First, Plaintiffs have standing to pursue their claims. “[I]f none of the named plaintiffs purporting to represent a class establishes the requisite of a case or controversy with the defendants, none may seek relief on behalf of himself or any other member of the class.”
VTA suggests that Plaintiffs lack standing to seek compensation for time allegedly worked in excess of eight hours because they are guaranteed eight hours per day under their collective bargaining agreements.
VTA’s assertion that Plaintiffs’ failure to use the procedures provided in the CBAs to grieve their claims is “a jurisdictional bar to pursuing those claims” in this court similarly lacks merit.
Second, Plaintiffs meet the numerosity requirement. Rule 23(a)(1) requires that a class be “so numerous that joinder of all members is impracticable.” The Rule creates greater access to judicial relief, particularly for those persons with claims that would be “uneconomical to litigate individually.”
Plaintiffs have shown, and VTA concedes, that Plaintiffs meet the numerosity requirement.
Third, Plaintiffs have met the commonality requirement. Commonality is met when there are “questions of law or fact common to the class.”
Dissimilarities between class members must be considered in determining whether a common question will generate a common answer because dissimilarities within the proposed class can “impede the generation of common answers.”
In Wal-Mart, the Supreme Court held the plaintiffs had not established commonality when plaintiffs had not alleged an “express
Plaintiffs allege that VTA maintains common policies, procedures and practices relating to the compensation of all operators with respect to each of the six categories of time for which they seek compensation. The court considers each in turn.
To begin, Plaintiffs have presented substantial evidence that VTA maintains a policy not to pay operators for “split-shift travel time.”
Plaintiffs also have presented substantial evidence that VTA has policies not to compensate operators for “pre-departure time” and “turn-in time.”
VTA employee Eric Rosenberg asserts that turn-in time is “obsolete” and that the time that operators spend pulling into the division, parking the buses and walking into the division to turn in their pouches is “built into the run pay” and was “measured at each Division.”
Similarly, Plaintiffs have presented substantial evidence that VTA has common policies and practices not to compensate operators for bulletin time and meeting time. VTA requires operators to spend “bulletin time” checking bulletin boards at their divisions for bulletins and notifications, reviewing any items posted and meeting with superiors if the operator needs clarification or instructions regarding the posted materials.
With respect to Plaintiffs’ claims for additional driving time, Plaintiffs also have provided substantial evidence showing that VTA has a common policy of compensating operators for driving time based on a predetermined schedule rather than the actual time the operators spend driving.
VTA broadly asserts that “[t]he alleged common policies on which Plaintiffs rely do not actually exist.”
VTA cites to its purported policy “to pay for all work performed” to support its contention that commonality is not established because Plaintiffs have not shown that common policies or practices will drive resolution of the lawsuit.
The court finds these claims unavailing. Nothing about the policies VTA identifies negate the classwide nature of the questions of whether the categories of time Plaintiffs identify are compensable work time and whether the failure of VTA’s compensation scheme to separately allocate pay for these categories of time is improper. To the contrary, as Plaintiffs note, VTA’s assertions regarding these policies actually raise additional common questions. For instance, Plaintiffs contend that VTA has constructive and actual knowledge that routinely late time occurs for which operators do not submit extra time requests.
VTA may ultimately be able to show that Plaintiffs’ positions lack merit and that its policies properly compensate the class members. But the court “is required to examine the merits of the underlying claim in this context, only inasmuch as it must determine whether common questions exist” and must not “turn class certification into a mini-trial” by “determin[ing] whether class members could actually prevail on the merits of their claims.”
Plaintiffs have shown that VTA has uniform policies and procedures relating to compensation that “did not leave the relevant compensation decisions to the discretion of local supervisors.”
Fourth, Plaintiffs have met the typicality requirement. Typicality
The named plaintiffs and all members of the proposed class are similar because they all are or were employed as bus or train operators during the proposed class period.
Fifth, Plaintiffs have met the adequacy requirement. “To satisfy constitutional due process concerns, absent class members must be afforded adequate representation before entry of a judgment which binds them.”
VTA contends that the Plaintiffs have not zealously pursued the class members’ interests because they choose to seek unpaid straight time and minimum wage claims when they could have sought claims for unpaid overtime.
Likewise, proposed class counsel’s engagement in alleged misconduct in relation to the Alameda-Contra Costa Transit District in another lawsuit, while more disconcerting than proposed class counsel’s size, also does not establish that proposed class counsel is inadequate. AC Transit concluded that one attorney for proposed class counsel used his position as a board member at AC Transit to gain access to privileged and confidential information regarding FLSA litigation against AC Transit in order to advance litigation against VTA and Tri-County Metropolitan Transportation District of Oregon.
Ultimately, the State Bar of California determined that the allegations of misconduct did not “warrant further action” and the Oregon State Bar concluded that there was not probable cause of an ethics violation.
Sixth, Plaintiffs have shown that common questions of law and fact predominate. Under Rule 23(b)(3), Plaintiffs must establish that “questions of law or fact common to class members predominate over any questions affecting only individual members.” Rule 23(b)(3)’s predominance requirement “tests whether the proposed classes are sufficiently cohesive to warrant adjudication by representation.”
With respect to Plaintiffs’ claims for unpaid wages for time spent on non-driving activities, common questions predominate. Because Plaintiffs have presented substantial evidence that VTA has common policies not to separately allocate pay for these time spent on these activities, Plaintiffs’ claims for these categories of time raise questions regarding “the legality of [VTA’s] payment practices [which] apply to all [operators.”
Likewise, although each operator’s behavior varies, the class is “sufficiently cohesive to warrant adjudication by representation” with respect to Plaintiffs’ claims for routinely late time.
Likewise, VTA’s claim that, like in cases in which courts “repeatedly” held that “off-the-clock claims for unpaid wages present individualized issues that preclude certifications as a class,” VTA’s “policy pays for overtime work and requires that such work be reported” is misguided.
Plaintiffs have also sufficiently explained how they intend to prove damages for their unpaid wage claims on a class-wide basis. In Behrend, the Supreme Court held that in order to satisfy the predominance inquiry, a plaintiff must present a damage model that (1) identifies damages that stem from the defendant’s alleged wrongdoing and (2) establishes that “damages are susceptible of measurement across the entire class.”
To prove that damages could be calculated on a class-wide basis, Plaintiffs offered the opinion of Richard Drogin, who asserted he could determine damages amounts for the unpaid wages that the class members are allegedly owed based on the data Plaintiffs provided to him.
VTA claims that Plaintiff cannot meet the predominance requirement because Plaintiffs have not shown that “damages are capable of measurement on a classwide basis.”
Likewise, VTA’s allegation that Drogin’s first method does not “measure up to the Daubert standard of reliability” is unavailing.
Here, Drogin proposes to calculate damages using standard methodology premised on data common to all class members.
VTA’s attempt to invalidate Drogin’s second proposed method of using random sampling to extrapolate damages is also unavailing. VTA complains that Drogin’s opinion does not apply the facts of the case to the “theoretical possibility” of extrapolating damages based on sampling.
The first factor weighs in favor of certification. A class action is a superior method of adjudication when few class members would have “any meaningful redress against [the defendant]” because “few potential class members could afford to undertake individual litigation against [VTA] to recover the relatively modest damages at issue.”
The second factor also weighs in favor of certification. Plaintiffs’ counsel asserts that it is unaware of any individually filed actions alleging the same claims that Plaintiffs assert here, and VTA makes no representation that such actions exist.
As to the third factor, the court finds that concentration the litigation in this court is desirable. The class members’ claims all stem from VTA’s allegedly improper policies, practices, and procedures. It would be both “redundant” and a “wildly inefficient use of limited judicial resources” for each operator to file an individual lawsuit alleging claims for their unpaid wages.
The fourth factor weighs in favor of certification because adjudication of this case as a class action will not present unmanageable difficulties. VTA’s contention that class treatment of Plaintiffs’ claims is “impossible” because “separate and controlling inquiries” regarding each operator’s claims predominate fails.
IV.
The court GRANTS Plaintiffs’ motion for class certification under Rule 23(b)(3) and appoints named Plaintiffs as class representatives. The court also designates as class counsel under Rule 23(g) The Tidrick Law Firm and grants class counsel authorization to send to all class members the notice attached to the Declaration of Steven G. Ti-drick.
. See Santa Clara Valley Transportation Authority System Summary, http://www.vta.org^ transparency/performance-indicators/system-summary (139,582 average weekday boarding riders for the financial year to date 2015 first quarter).
. By stipulation of the parties, Silveira substituted for former Plaintiff Baljinder Rai. See Docket No. 142.
. See Docket No. 36 at 12-13.
. See Docket No. 143. Plaintiffs seek class certification for the Second and Third Causes of Action of their Fourth Amended Complaint, which allege failure to pay all hours worked. See id. at 12-13; see also Docket No. 143 at 1. Plaintiffs also make other claims not at issue here.
. The court may take judicial notice of a “fact that is not subject to reasonable dispute because it is generally known” or "can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). If the fact is not in dispute and may be verified by resort to the public record, the court takes judicial notice as requested. A court may take judicial notice of laws, city ordinances and opinion letters. See Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022, 1025 n. 2 (9th Cir.2006); Mendoza v. Home Depot, U.S.A., Inc., Case No. 09-05843-SJO(JCx), 2010 WL 424679, at *3 (C.D.Cal. Jan. 21, 2010) (Industrial Wage Orders and California Division of Labor Standards Enforcement Opinion Letters "are properly subject to judicial notice”). Plaintiffs request that the court take judicial notice of (1) the California Industrial Welfare Commission Wage Order 9-2001, codified at 8 Cal. Code Regs. § 11090 (Docket No. 144, Ex. 1); (2) the City of San Jose Minimum Wage Ordinance (Docket No. 144, Ex. 2) and (3) a California Division of Labor Standards Enforcement Opinion Letter of January 29, 2002 (Docket No. 144, Ex. 3). Because none is subject to a reasonable dispute, the court takes notice as requested.
Plaintiffs also object to the tardiness of VTA’s opposition brief, see Docket No. 167 at 2, and further complain that the declarations of Anita Geleynse, Eric Rosenberg and David Terrazas are not signed and lack an attestation by the filer as Civ. L.R. 5-l(i)(3) requires. See id; see also Docket Nos. 154-1, 154-2, 155. Plaintiffs assert that these declarations — along with the declaration of Joseph P. Ryan — are defective because they purport to be "under penalty of perjury under the laws of the State of California,” not under federal law. See Docket No. 167 at 2 (citing Mejia v. City of San Bernardino, Case No. EDCV-1 l-00452-VAP(DTBx), 2012 WL 1079341, at *2 (C.D.Cal. Mar. 30, 2012)); see also Docket No. 154-3. The court does not condone late filings or filings of defective, unsigned declarations. But as explained below, class certification is proper, even considering these declarations and VTA’s opposition brief. For its part, VTA objects that Plaintiffs "filed a voluminous motion just before Thanksgiving” without giving VTA time to discuss a discovery
. Wal-Mart Stores, Inc. v. Dukes, -U.S.-, 131 S.Ct. 2541, 2550, 180 L.Ed.2d 374 (2011) (quoting Califano v. Yamasaki, 442 U.S. 682, 700-1, 99 S.Ct. 2545, 61 L.Ed.2d 176 (1979)).
. Id. at 2551.
. In re Cmty. Bank of N. Va., 622 F.3d 275, 291 (3d Cir.2010) (quoting Fed. R. Civ. P. 23(a)(l)(4)); see also Leyva v. Medline Indus., Inc., 716 F.3d 510, 512 (9th Cir.2013).
. See Fed. R. Civ. P. 23(a)-(b); Hanlon v. Chrysler Corp., 150 F.3d 1011, 1022 (9th Cir.1998); Leyva, 716 F.3d at 512.
. See Docket No. 143 at 18.
. Fed. R. Civ. P. 23(b)(3).
. Stitt v. San Francisco Mun. Transp. Agency, Case No. 12-CV-3704, 2014 WL 1760623 (N.D.Cal. May 2, 2014) (citing Cal. Prac. Guide Fed. Civ. Pro. Before Trial Ch. 10-C § 10:274).
. Hanlon, 150 F.3d at 1022 (internal citations omitted).
. Wal-Mart, 131 S.Ct. at 2551.
. Id. (emphasis in original).
. See id.; see also Wang v. Chinese Daily News, Inc., 737 F.3d 538, 542-43 (9th Cir.2013).
. See Wal-Mart, 131 S.Ct. at 2551; In re Google Inc. Gmail Litig., Case No. 5:13-md-02430-LHK, 2014 WL 1102660, at *11 (N.D.Cal. Mar. 18, 2014); General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 160, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982) ("[A]ctual, not presumed, conformance with Rule 23(a) remains ... indispensable.”).
. See Docket No. 145-2, Tidrick Deck, Ex. G, Cuff Depo. at 26:8-27:10.
. See Docket No. 145-2, Tidrick Deck, Ex. D, Stanislaw Depo. Vol. 1 at 10:13-12:1.
. See id. at 10:20-11:3, 12:9-13, 18:20-25.
. See Docket No. 155, Terrazas Decl. at ¶¶ 3-11, see also Docket Nos. 155-162, Terrazas Deck, Ex. 1-2.
. See Docket No. 145-2, Tidrick Deck, Ex. F, Rosenberg Depo. at 9:7-10:25, 28:3-14, 29:5-19; see also Docket No. 145-2, Tidrick Deck, Ex. D, Stanislaw Depo. Vol. 1 at 18:6-25.
. See Docket No. 145-2, Tidrick Deck, Ex. F, Rosenberg Depo. at 31:7-32:4; Docket Nos. 145-2, 145-3, Tidrick Deck, Stanislaw Depo. Vol. 1, Ex. 1.
. See Docket No. 145-2, Tidrick Deck, Ex. D, Stanislaw Depo. Vol. 1 at 79:23-80:24; Docket No. 145-7, Tidrick Deck, Stanislaw Depo. Vol. 1, Ex. 5 at Section 11, pages 5 ("Synopsis of Runs: Explanation of each Column as Follows” defining the column labeled "STRT TIME” as "Straight Time. A combination of total platform, travel time, allowed time, report time and elapsed time”); see also Docket Nos. 145-2, 145-3, Tidrick Deck, Stanislaw Depo. Vol. 1, Ex. 1.
. See Docket No. 145-7, Tidrick Deck, Stanis-law Depo. Vol. 1, Ex. 5 at Section 11, pages 5.
. See id. (“Synopsis of Runs: Explanation of each Column as Follows” defining “TOTAL PAY” as "[t]he number of hours being paid at straight time rate for STRAIGHT TIME and OVER TIME (Total Run Pay). Multiply this time by the hourly rate to figure total pay for the day”); see also Docket Nos. 145-2, 145-3, Stanislaw Depo. Vol. 1, Ex. 1.
. Docket No. 143 at 5.
. See Docket No. 36 at 12-13.
. Docket No. 143 at 1. Plaintiffs also request that the class exclude "anyone employed by counsel for Plaintiffs in this action, and any Judge to whom this action is assigned and his or her immediate family members.” See id. at 1.
. See id.
. See Lierboe v. State Farm Mut. Auto. Ins. Co., 350 F.3d 1018, 1022 (9th Cir.2003).
. See id. (internal citations omitted); see also Bates v. United Parcel Serv., Inc., 511 F.3d 974, 985 (9th Cir.2007) (en banc) ("In a class action, standing is satisfied if at least one named plaintiff meets the requirements.”)
. See Docket No. 154 at 7-8.
. See Cal. Labor Code § 510(a); 8 C.C.R. § 11090(3).
. See Cal. Lab. Code §§ 510(a)(2), 514; 8 C.C.R. § 11090(3)(H); see also Docket No. 154 at 8; see also Docket No. 155, Terrazas Decl. at ¶¶ 8, 10.
. See Docket No. 167 at 7; cf. Docket No. 144, Ex. 3 at 11 ("Averaging of all wages paid under a CBA or other contract, within a particular pay period, in order to determine whether the employer complied with its minimum wage obligations is not permitted under these circumstances, for to do so would result in the employer paying the employees less than the contract rate for those activities which the CBA or contract requires payment of a specified amount equal to or greater than the minimum wage, in violation of Labor Code sections 221-223.”).
. See Docket No. 154 at 9-10. VTA asserts that a party to a collective bargain agreement which "provides grievance and arbitration machinery for the settlement of disputes" within the scope of such agreement "must exhaust the internal remedies” before seeking redress in court "in the absence of facts excusing such exhaustion.” See Docket No. 154 at 9 (citing Johnson v. Hydraulic Research & Mfg. Co., 70 Cal.App.3d 675, 679, 139 Cal.Rptr. 136 (1977)); see also Docket No. 155, Terrazas Decl., Ex. 1, Part A, Section 19 (providing a grievance procedure for disputes regarding the CBA); Docket No. 159, Terrazas Deck, Ex. 2, Part A, Section 19 (same).
. See Docket No. 167 at 8; cf. Lierboe, 350 F.3d at 1023 (noting that state supreme court had “established” that plaintiff's claim was not viable under state law).
. See id.
. See Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 809, 105 S.Ct. 2965, 86 L.Ed.2d 628 (1985); 7A Charles Alan Wright, et ah. Federal Practice and Procedure § 1762 (3d ed. 2005).
. 1 William B. Rubenstein, Newberg on Class Actions § 3:12, (5th ed.2011); see also Rannis v. Recchia, 380 Fed.Appx. 646, 651 (9th Cir.2010).
. See Docket No. 154 at 4 ("VTA does not question the 'numerosity’ criterion.”).
. See Docket No. 145, Tidrick Deck at ¶ 3 (“VTA produced to Plaintiffs' counsel contact information for a total of 1,083 Operators ... taking into account additional individuals that VTA has hired as Operators since that time, the proposed class size is at least 1,083 people.”).
. Under the ascertainability doctrine, the class must be sufficiently definite so that it is feasible for the court to determine membership by reference to objective criteria. See Williams v. Oberon Media, Inc., 468 Fed.Appx. 768, 770 (9th Cir.2012) (class motion was properly denied because the proposed members are not "precise, objective or presently ascertainable”). VTA does not dispute that this requirement is met, and Plaintiffs have presented sufficient evidence that VTA maintains records from which the class members can be identified. See Docket No. 145-2, Tidrick Deck, Ex. F, Rosenberg Depo. at 21:2-24; Docket No. 145-2, Tidrick Deck, Ex. D, Stanislaw Depo. Vol. 1 at 70:18-23; Docket No. 150, Drogin Deck at ¶¶ 4, 17-18; Docket No. 145, Tidrick Deck at ¶ 3.
. Fed. R. Civ. P. 23(a)(2).
. Wal-Mart, 131 S.Ct. at 2551 (internal citations omitted).
. Id.-, see also Parsons v. Ryan, 754 F.3d 657, 675 (9th Cir.2014).
. Abdullah v. U.S. Sec. Ass., Inc., 731 F.3d 952, 957 (9th Cir.2013) (quoting Wal-Mart, 131 S.Ct. at 2551 (emphasis in original)).
. Wal-Mart, 131 S.Ct. at 2551 (internal citations omitted).
. Amgen Inc. v. Conn. Ret. Plans and Trust Funds, -U.S.-, 133 S.Ct. 1184, 1194-95, 185 L.Ed.2d 308 (2013) (internal citations omitted); see also Ellis v. Costco Wholesale Corp., 657 F.3d 970, 981 (9th Cir.2011) ("[A] district court must consider the merits [of plaintiffs' claims] if they overlap with the Rule 23(a) requirements.”) (emphasis in original).
. Wang, 737 F.3d at 544 (quoting Wal-Mart, 131 S.Ct. at 2556).
. Evon v. Law Offices of Sidney Mickell, 688 F.3d 1015, 1029 (9th Cir.2012) (internal citations omitted).
. Wal-Mart, 131 S.Ct. at 2547-48.
. Id. at 2553 (internal citations omitted).
. Id. at 2553 (internal citations omitted).
. Id. at 2556-57.
. See Docket No. 143 at 5-6.
. See Docket No. 145-2, Tidrick Deck, Ex. F, Rosenberg Depo. at 58:1-59:9, 67:17-68:17; see also Docket No. 145-1, Tidrick Deck, Ex. B, Rosa Deck at ¶¶ 9-12 (describing split-shift travel time); see also Docket Nos. 145-1, 145-2, Ti-drick Deck, Ex. B, Operators’ Decís, (declarations of other operators describing split-shift travel time).
. Docket No. 145-1, Tidrick Deck, Ex. B, Rosa Deck at ¶ 9; see also Docket Nos. 145-1, 145-2, Tidrick Deck, Ex. B, Operators’ Decís.
. See Docket No. 145-2, Tidrick Deck, Ex. F, Rosenberg Depo. at 58:2-23; Docket No. 145-1, Tidrick Deck, Ex. B, Rosa Deck at ¶ 9; see also Docket Nos. 145-1, 145-2, Tidrick Deck, Ex. B, Operators’ Decís.
. See Docket No. 145-2, Tidrick Deck, Ex. F, Rosenberg Depo. at 59:3-60:6, 67:17-68:17; Docket No. 145-1, Tidrick Deck, Ex. B, Rosa Deck at ¶ 10 ("This 'split-shift travel' is the result of Defendant’s route and scheduling decisions and is for the convenience and benefit of Defendant only.”); Docket Nos. 145-1, 145-2, Tidrick Deck, Ex. B, Operators’ Decís, (similar assertions).
. See Docket No. 145-2, Tidrick Deck, Ex. F, Rosenberg Depo. at 55:5-56:9 (payment for "travel time” as a "general rule” does not include time spent "walking or waiting” except that light rail is “paid for the waiting time”).
. See Docket No. 143 at 6-9.
. Operators sometimes relieve other operators at locations on routes that are geographically distant from their current locations. See Docket No. 145-1, Tidrick Deck, Ex. B, Rosa Deck at ¶28 ("I have had to travel from either a relief point or my division to relieve another Operator.”); see also Docket Nos. 145-1, 145-2, Ti-drick Deck, Ex. B, Operators' Decís. VTA recommends that operators take the bus or train to the relief location that is two buses or trains ahead of the bus or train that would get the operator to the relief point at the exact time of or just before the relief that the operator is making. See Docket No. 145-2, Tidrick Deck, Ex. F, Rosenberg Depo. at 77:2-78:2; Docket No. 145-2, Tidrick Deck, Ex. C, Marshall Deck at ¶¶ 6-8. Operators are "subject to discipline” if they do not arrive at the relief point within a certain timeframe, but "excused from such discipline” if they followed VTA’s recommendation regarding
. Some operators’ shifts end at relief points and others end at divisions. See Docket No. 145-2, Tidrick Deck, Ex. D, Stanislaw Depo. Vol. 1 at 32:16-20. VTA maintains policies and procedures that require operators to perform various tasks after pulling into divisions. See id. at 26:10-28:17, 32:21-33:8; Docket No. 145-8, Ti-drick Deck, Stanislaw Depo. Vol. 1, Ex. 6, Rule 4.25 ("Responsibilities After Pull-In”), Docket No. 146, Ex. 7, Rule 4.25 ("Responsibilities After Pull-In”), Docket No. 146-2, Ex. 8, Rule 12.12.13 ("Place the defect card on the clipboard attached to the shop office door.”); Docket No. 145-2, Tidrick Deck, Ex. E, Stanislaw Depo. Vol. 2 at 102:17103:7; Docket No. 146-7, Stanislaw Depo. Vol. 2, Ex. 26, Rule 4.25 (“Responsibilities After Pull-In”); Docket No. 145-1, Tidrick Deck, Ex. B, Rosa Deck at ¶ 13 (describing how VTA requires operator to "turn in various documents (for example, defect cards, run paddles, operator comment forms, lost property tags, and suspect description forms) to the dispatcher at the division at the end of my day’s assignment and/or at the end of a route that requires me to return my vehicle back to the division”); see also Docket Nos. 145-1, 145-2, Tidrick Deck, Ex. B, Operators’ Decís, (describing time spent on similar turn-in activities).
. See Docket No. 154-2, Rosenberg Deck at ¶¶ 8-9.
. See Docket No. 145-2, Tidrick Deck, Ex. D, Stanislaw Depo. Vol. 1 at 79:23-80:24, Docket No. 145-7, Tidrick Deck, Stanislaw Depo. Vol. 1, Ex. 5 at Section 11, pages 4-5 (showing that "straight time” consists of "a combination of total platform, travel time, allowed time, report time and elapsed time” and stating that "Turn In Time” is "[n]ot used at this time”), Docket No. 145-2, Tidrick Deck, Ex. D, Stanislaw Depo. Vol. 1, Ex 1 (indicating no time allocation in "Turn Time” column); Docket No. 145-2, Tidrick Deck, Ex. F, Rosenberg Depo. at 55:5-56:9 (payment for “travel time” as a "general rule” does not include time spent walking or waiting except that light rail operators are paid for waiting time).
. Docket No. 145-1 Tidrick Deck, Ex. B, Sil-veira Deck at ¶¶ 17, 21 (stating that VTA has not compensated operator for all pre-departure and turn-in time); Docket Nos. 145-1, 145-2, Tidrick Deck, Ex. B, Operators' Decís. Plaintiffs also present evidence that operators are not paid for turn-in time because they are "off-the-clock” when they arrive at the gate of the division. See Docket No. 145-2, Tidrick Deck, Ex. D, Stanis-law Depo. Vol. 1 at 25:9-12 ("[P]ull-in” is the "time when the operator is scheduled to pull into the division gate”); Docket No. 145-3, Tidrick Deck, Stanislaw Depo. Vol. 1, Ex. 2 ("Pull In ll:27p” for "Run[] 2128” indicating that the time the vehicle pulls into division is 11:27 pm); Docket No. 145-2, Tidrick Deck, Stanislaw Depo. Vol. 1, Ex.l at 3 ("Time Off ll:27p” indicating that scheduled ending time of run 2128 is 11:27 pm).
. See Docket No. 145-2, Tidrick Deck, Ex. D, Stanislaw Vol. 1 at 68:8-22-69:5, Docket No. 1457, Ex. 6 at pg III-IV, Docket No. 146 Ex. 7,
. See Docket No. 145-1, Tidrick Deck, Ex. B, Rosa Deck at ¶¶ 34-39; see also Docket Nos. 145-1, 145-2, Tidrick Deck Ex. B, Operators' Decís, (describing time spent on similar meeting-related activities).
. Plaintiffs cite to evidence showing that VTA "has maintained a policy and practice of not including Bulletin Time in the Synopsis of Runs that it creates using Trapeze, and not paying for that time.” See Docket No. 143 at 9 (citing Docket No. 145-2, Tidrick Deck, Ex. D, Stanis-law Depo. Vol. 1 at 79:23-80:24; Docket No. 145-7, Ex. 5 at Section 11, page 5 (showing that straight time consists of "total platform, travel time, allowed time, report time and elapsed time”)). VTA also has a policy not to compensate operators for time meeting regarding payroll correction forms. See Docket No. 145-2, Tidrick Deck, Ex. D, Stanislaw Depo. Vol. 1 at 60:1-3 (agreeing that operators are not "paid for the time meeting with the timekeeper about ... paycheck investigation request[s]”).
. See Docket No. 145-2, Tidrick Deck, Ex. H, Chaney Depo. at 21:10-12 ("Your schedule is what you're paid for."); Docket No. 145-1, Ti-drick Deck, Ex. B, Rosa Deck at ¶ 23 ("The amount I receive in compensation per day is set by the same schedule for the particular run assignment. If my vehicle arrives at the ending point after the scheduled arrival time, then I am not compensated for such time.”); see also Docket Nos. 145-1, 142, Tidrick Deck, Ex. B, Operators’ Decís.
. Operators claim that runs are "routinely” late. See Docket Nos. 145-1, 145-2, Tidrick Deck, Ex. B, Operators' Decís. VTA is aware that operators sometimes arrive at the end points of their runs late. See Docket No. 145-2, Tidrick Deck, Ex. H, Chaney Depo. at 17:3-20 (noting that operators complain that "there is not enough time” in the schedule and they are "rushing to get from point A to point B”), 18:20-19:1 (noting that operators submitted "overtime cards for coming in late”), 19:11-20:10 ("I know that occasionally [buses] do come back to the division late.”). Plaintiffs have presented evidence that VTA maintains policies and practices that contribute to this lateness. For instance, VTA’s "general rule ... that [operators are] not supposed to leave [time points] early” prohibits operators from driving ahead of schedule. See Docket No. 145-2, Tidrick Deck, Ex. F, Rosenberg Depo. at 32:5-24, 40:11-41:18.
. See Docket No. 154 at 12-13.
. See Stitt, 2014 WL 1760623 at *4.
. See Docket No. 143 at 15-16.
. See Stitt, 2014 WL 1760623 at *5.
. See Wal-Mart, 131 S.Ct. at 2551.
. See Ellis, 657 F.3d at 981 (internal citations omitted).
. See Docket No. 154 at 10-11; see also Docket No. 155, Terrazas Deck at ¶ 15 ("It is VTA policy that all employees are to be paid for all time worked and that there be no off the clock work unpaid.”).
. See Docket No. 154 — 1, Geleynse Deck at ¶¶ 3-6.
. See Docket No. 154 at 11, 13. VTA receives about "36,500 extra pay requests annually from a workforce of approximately 975 Bus and Light Rail Operators.” See Docket No. 154 — 1, Ge-leynse Deck at ¶¶ 3-6. These requests are "rarely denied.” See id.
. See Docket No. 154 at 11.
. See id.', Docket No. 155, Terrazas Deck at V 11 ("At all times from the year 2008 to present, the Collective Bargaining Agreements between VTA and ATU Local 265 provided for an eight hour daily pay guarantee for all Bus and Light Rail Operators.”).
. Plaintiffs contend that VTA has knowledge that routinely late time occurs because VTA monitors vehicle locations using GPS devices. See Docket No. 143 at 11 (citing Docket No. 145-2, Tidrick Deck, Ex. F, Rosenberg Depo. at 32:5-34:18; Docket No. 145-2, Tidrick Deck, Ex. G, Cuff Depo. at 16:5-16, 29:10-30:19, 32:3-18); see abo Docket Nos. 145-1, 145-2, Tidrick Decl, Ex. B, Operators’ Decís. Plaintiffs also claim that VTA is aware vehicles are routinely late because it has received reports from operators showing that vehicles are late. See Docket No. 143 at 11 (citing Docket No. 145-2, Tidrick Deck, Ex. F, Rosenberg Depo. at 44:1-46:11; Docket No. 145-2, Tidrick Deck, Ex. H, Chaney Depo. at 13:20-14:18; Docket Nos. 148-6 to 149-4, Tidrick Deck, Exs. M, N). Further, VTA is aware that operators do not always submit extra time requests when their vehicles are late. See Docket No. 145-2, Tidrick Deck, Ex. D, Stan-islaw Depo. at Vol. 1 at 61:15-62:1; Docket No. 145-2, Tidrick Deck, Ex. G, Cuff Depo. at 31:8— 22; Docket No. 145-2, Tidrick Deck, Ex. H, Chaney Depo. at 15:3-20.
. See Docket No. 143 at 11-13. Plaintiffs note that VTA keeps blank extra pay request forms at divisions instead of in its transit vehicles or operators’ pouches. See id. at 12 (citing Docket No. 145-2, Tidrick Deck, Ex. H, Chaney Depo. at 38:19-39:19). Further, VTA conceded that it might consider it "excessive” if an operator turned in an extra pay request every day. See Docket No. 145-2, Tidrick Deck, Ex. H, Chaney Depo. at 34:11-20. VTA also does not allow operators to call in their unscheduled time by telephone and does not discipline supervisors who know that operators have performed un
. See Docket No. 143 at 13 (citing Mahoney v. Farmers Ins. Exch., Case No. 4:09-cv-2327, 2011 WL 4458513, at *9 (S.D.Tex. Sept. 23, 2011) (concluding that defendant’s actual practices regarding "off-the-clock work” are evidence of a ' 'policy-to-violate-the-policy' ’)).
. See Docket No. 167 at 7.
. See Ellis, 657 F.3d at 983 n. 8.
. See Abdullah, 731 F.3d at 957 (emphasis in original).
. See Stitt, 2014 WL 1760623 at *6 (citing Eddings v. Health Net, Inc., Case No. 10-1744-JST(RZx), 2011 WL 4526675, at * 1, (C.D.Cal. July 27, 2011) (finding that defendant subjected the purported class members to the same "timekeeping and rounding policies” and plaintiffs’ claim "satisfies Dukes and is proper for class-wide resolution”)).
. See Stitt, 2014 WL 1760623 at *4; see also Docket No. 154-2, Rosenberg Deck at ¶¶ 3-4 (asserting that the data Plaintiffs possess does not show "the reasons why a bus was late” and that "[bjuses can return late to Divisions for many reasons unrelated to work” such as operators running personal errands or taking extended breaks).
. See Docket No. 154 at 12; Bibo v. Fed. Express, Inc., Case No. C-07-2505-TEH, 2009 WL 1068880, at *13 (N.D.Cal. Apr. 21, 2009) (“[Wjhether the amounts of work in question are de minimis is a common question of law.”); see also Stitt, 2014 WL 1760623 at *5-6 (rejecting defendant’s claim that the commonality requirement is not met because defendant claimed that "the record evidence shows that [the time for which plaintiffs seek compensation] is de minim-is"). In the cases to which VTA cites, courts found that de minimis defense weighed against class certification in part because plaintiffs presented substantial evidence of uniform policies and procedures that precluded resolution of the de minimis defense on a classwide level. See Docket No. 154 at 12 (citing cases); Reed v. County of Orange, 266 F.R.D. 446, 461-62 (C.D.Cal.2010) (“Since Plaintiffs have not provided substantial evidence of a single [defendant] policy or practice that violates the FLSA ... the Court finds that proving [the de minimis defense] will be as individualized as the claims are.”); Hawkins v. Securitas Sec. Services USA, Inc., 280
. See Fed. R. Civ. P. 23(a)(3).
. Parsons, 754 F.3d at 685 (internal citation omitted).
. 7A Wright, § 1764.
. Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir.1992).
. Parsons, 754 F.3d at 685 (internal citations omitted).
. See Docket No. 145-1, Tidrick Deck, Ex. B, Rosa Deck at ¶ 2, Silveira Deck at ¶ 2. VTA’s complaint that Silveira is an improper representative because he was "never before identified as a class representative and is a "late minute substitution” lacks merit because VTA stipulated to the substitution and amendment adding Silveira as a representative. See Docket No. 154 at 4; see also Docket Nos. 141, 142.
. See Docket No. 154 at 16-17; see also Docket No. 145-1, Tidrick Deck, Ex. B, Rosa Deck at ¶¶ 7, 11, 15 (asserting that Rosa has been compensated straight time for start-end travel time, split-shift travel time and turn-in time); Docket No. 145-1, Tidrick Deck, Ex. B, Silveira Deck at ¶¶ 7, 11, 21 (asserting that Silveira has not been compensated for all straight time or at one-and-a-half time with respect to start-end travel time, split-shift travel time and turn-in time).
. See Parsons, 754 F.3d at 685.
. See Lopez v. G.A.T. Airline Ground Support, Inc., Case No. 09-cv-2268-IEG(BGS), 2010 WL 3633177, at *7 (S.D.Cak Sept. 13, 2010) ("Notwithstanding these variations in the named Plaintiffs' claims, the Court finds Plaintiffs’ claims are sufficiently representative of the proposed class members ... Although not all the named Plaintiffs can assert all of the claims, their claims are collectively typical of the class members as a whole.”).
. See Docket No. 154 at 16; see also Docket No. 145-1, Tidrick Deck, Ex. B, Silveira Deck at ¶ 19 (turn-in time activities take "up to 5 minutes every work day”), ¶ 30 (routinely late time is between about one and ten minutes); Docket No. 145-1, Tidrick Deck, Rosa Deck at ¶ 13 (turn-in activities take “up to ten (10) minutes every time”).
. See Parsons, 754 F.3d at 685.
. Hanlon, 150 F.3d at 1020.
. See Fed. R. Civ. P. 23(a)(4); Hanlon, 150 F.3d at 1020.
. Stitt, 2014 WL 1760623 at *7 (citing Fed. R. Civ. P. 23(a)(4); 23(g)).
. See id. (citing Newberg on Class Actions § 3:72 (5th ed.)).
. See Docket No. 154 at 17.
. See id.
. See Docket No. 167 at 14.
. Hanlon, 150 F.3d at 1020.
. See Docket No. 145, Tidrick Deck at ¶¶ 17-18; Docket No. 149-4, Ex. 0.
. Docket No. 154 at 17.
. See Docket No. 154-3, Ryan Deck at ¶¶ 3-8.
. See id. at ¶ 6.
. See id. at ¶¶ 7-8; Docket No. 168, Tidrick Deck at ¶ 4.
. See id. at ¶ 4, Exs. A, B.
. See Docket No. 154 at 18.
. See Stitt, 2014 WL 1760623 at *7.
. Wang, 737 F.3d at 545 (internal citations omitted).
. Hanlon, 150 F.3d at 1022.
. See Stitt, 2014 WL 1760623 at *8.
. See id.
. See Wang, 737 F.3d at 545.
. See Docket No. 154 at 13.
. See Stitt, 2014 WL 1760623 at *9 (noting the existence of similar common questions with respect to operators’ claims for routinely late time).
. See Docket No. 154 at 13.
. See Docket No. 154 at 10-11 (citing cases).
. See Brewer v. Gen. Nutrition Corp., No. 11-CV-3587-YGR, 2014 WL 5877695, at *11 (N.D.Cal. Nov. 12, 2014) (internal citations omitted); In re AutoZone, Inc. Wage and Hour Employment Practices Litigation, 289 F.R.D. 526, 539 (N.D.Cal.2012) ("Here, ... there is a uniform policy prohibiting off-the-clock work. In light of that policy, Plaintiffs must present substantial evidence that AutoZone requires its employees to work off-the-clock.”); Collins v. ITT Educational Services, Inc., Case No. 12-CV-1395-DMS-BGS, 2013 WL 6925827, at *6 (S.D.Cal. July 30, 2013) (Because "the only uniform policy Plaintiffs have shown is Defendant’s written policy requiring employees to report all time worked ... and prohibiting off-the-clock work.... In light of that policy, Plaintiffs must establish that they were uniformly required to work overtime and not report it.”); Ortiz v. CVS Caremark Corp., C-12-05859 EDL, 2013 WL 6236743, at *9 (N.D.Cal. Dec. 2, 2013) (employer had policy against off-the-clock work and there was "no evidence” of a policy requiring off-the-clock work).
. SeeBrewer, 2014 WL 5877695 at *11.
. Comcast Corp. v. Behrend,-U.S.-, 133 S.Ct. 1426, 1433, 185 L.Ed.2d515 (2013).
. See id.
. Leyva, 716 F.3d at 514.
. See Docket No. 150, Drogin Decl. at ¶¶ 4-6.
. See id. at V 22.
. See Docket No. 154 at 15 (citing Behrend, 133 S.Ct. at 1433).
. See Docket No. 154 at 14.
. See Behrend, 133 S.Ct. at 1433.
. See Docket No. 154 at 14.
. See Tait v. BSH Home Appliances Corp., 289 F.R.D. 466, 490 (C.D.Cal.2012) (citing Wal-Mart, 131 S.Ct. at 2553-54).
. See id. at 495; (citing In re Zurn Pex Plumbing Products Liab. Litig., 644 F.3d 604, 614 (8th Cir.2011)); see also Sirko v. IBM Corp., Case No. CV-13-03192-DMG, 2014 WL 4452699, at *6 (C.D.Cal. Sept. 3, 2014) ("At the class certification stage, courts should apply a 'tailored' Daubert analysis to determine the reliability of the expert's testimony regarding the Rule 23 requirements, not the merits of the case.”) (internal citations omitted).
. See Docket No. 150, Drogin Decl. at ¶¶ 4-19.
. See id. at ¶ 4.
. See Docket No. 154 at 14.
. Behrend, 133 S.Ct. at 1433.
. See Docket No. 154 at 15.
. See Docket No. 150, Drogin Decl. at ¶¶ 32-33. VTA's assertion that Drogin’s opinion is defective because he did not describe the necessary sample size or anticipated margin of error is incorrect. See Docket No. 154 at 14. Drogin may make that assessment after the parties have stipulated to or the court has ruled on what margin of error is acceptable. See Docket No. 150 at ¶ 29 ("The choice of a required margin of error estimate is an issue that should either be agreed upon by the parties, or set by the court.”).
. See Docket No. 154 at 14-15.
. See Tokoshima v. Pep Boys—Manny Moe & Jack of California, Case No. C-12-4810-CRB, 2014 WL 1677979, at *8 (N.D.Cal. Apr. 28, 2014)
. Fed. R. Civ. P. 23(b)(3)(A)-(D).
. Chamherlan v. Ford Motor Co., 223 F.R.D. 524, 527 (N.D.Cal.2004).
. See Docket No. 143 at 24.
. See Stitt, 2014 WL 1760623 at *10 (internal citation omitted).
. See id. at *10.
. See Docket No. 143 at 24-25.
. See Stitt, 2014 WL 1760623 at *10.
. See Docket No. 154 at 18.
. See id.
. See Stitt, 2014 WL 1760623 at *10.
. See Docket No. 145-1, Tidrick Deck, Ex. A.