Motion,Ex Parte: JASMIN ORTEGA VS CARSON WILD WINGS LLC

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Jul 192021 16:39AM PDT Via Cage Anywhore FILED BY FIA-.
(CRC 2008*

Jonathan M. Lebe (SBN 284605)
Jon@lebelaw.com
Zachary Gershman (SBN 328004)

Zachary@lebelaw.com F
Lebe Law, APLC Superior STEED mia
777 South Alameda Street, 2nd Floor ounty of Los Angeles
Los Angeles, CA 90021
Tel: (213) 444-1973 JUL 20 2021
Sherri R,Parter, Exeowtve Oi
Rodney Mesriani (SBN 184875) By, Helen of Cout
Mesriani Law Group, APLC Tan rer Deputy

Rodney@mesriani.com
5723 Melrose Avenue
Los Angeles, CA 90038
Tel: (310) 921-7056
Fax: (310) 820-1258

Attorneys for Plaintiffs Jasmin Ortega and Julieta Hernandez,
Individually and on behalf of all others similarly-situated

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF LOS ANGELES
Jasmin Ortega and Julieta Hernandez, Case No. BC677389
Individually and on behalf of all others
similarly-situated Honorable Ann Jones — Dept. 11
Plaintiffs, PLAINTIFFS’ NOTICE OF MOTION FOR
y CLASS CERTIFICATION
Carson Wild Wings, LLC, A California Hearing Information:
Limited Liability Company; PCF Restaurant Date: November 19, 2021
Management LLC, A California Limited Time: 1:45 p.m.

Liability Company; Koreatown Wild Wings, Dept.: 11
LLC, A California Limited Liability
Company; Baldwin Hills Wild Wings, LLC, A | [Memorandum and Points of Authorities;

California Limited Liability Company; Declaration of Jonathan M. Lebe and Request for
Torrance Wild Wings, LLC, A California Judicial Notice; Declaration of Jasmin Ortega;
Limited Liability Company; TA Restaurant Declaration of Julieta Hernandez; Declaration of

Group, LLC, A California Limited Liability Rodney Mesriani; Plaintiffs’ Trial Plan; and
Company; Karim Webb, An Individual; and [Proposed] Order Filed Concurrently Herewith]
Edward Barnett, II, an Individual; and Does 8
through 25, Inclusive,

Defendants.

PLAINTIFF’S NOTICE OF MOTION FOR CLASS CERTIFICATIONCoo

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE that on November 19, 2021, at 1:45 p.m. in Department 11 of the Los
Angeles County Court’s Spring Street Courthouse, located at 312 N Spring St, Los Angeles, CA 90012,
Plaintiffs Jasmin Ortega and Julieta Hernandez will, and hereby do, move for an order as follows:

1. Granting Certification of the following proposed classes:

a. The Reporting Time Pay Class: All non-exempt current and former

employees of Defendants in the State of California from September 26, 2014 to and
including the date of class certification.

b. The Overtime Wages Class: All current ‘and former employees of
Defendants in the State of California who received multiple hourly rates for work
performed during the same pay period or received non-discretionary bonuses or
compensation from September 26, 2014 to and including the date of class
certification.

c. The Meal Break Class: All non-exempt current and former employees of
Defendants in the State of California from September 26, 2014 to and including the
date of class certification.

d. The Rest Break Class: All non-exempt current and former employees of
Defendants in the State of California from September 26, 2014 to and including the
date of class certification.

e. The Wage Statement Class: All non-exempt current and former employees
of Defendants in the State of California from September 26, 2016 to and including

the date of class certification.

f. The Timely Separation Pay Class: All of Defendants’ non-exempt former
employees who separated from Defendants from September 26, 2014 to and

including the date of class certification.

2

PLAINTIFF’S NOTICE OF MOTION FOR CLASS CERTIFICATIONg. The 17200 Class: All of Defendants’ non-exempt current and former
employees employed by Defendants from September 26, 2013 to the and including
the date of class certification.
2. Ordering that the Classes, as defined above, may proceed as alleged in Plaintiffs’
Third Amended Complaint;
3. Appointing the Plaintiffs as class representatives for the Classes, as defined above;
4. Appointing Jonathan M. Lebe and Zachary T. Gershman of Lebe Law, APLC, and
Rodney Mesriani of Mesriani Law Group as Class Counsel for the Classes, as defined above; and
5. Granting such other and further relief as the Court may deem just and proper.
Plaintiffs’ motion is based on this Notice of Motion and Motion, the attached Memorandum of
Points and Authorities, along with attached Declarations of Plaintiffs and attached evidence, trial
testimony of various putative class members, the pleadings and other papers filed in this action, and such

further argument or evidence as may be considered at the hearing on this motion.

Dated: July 19, 2021 Lebe Law, APLC

By:

Jonathah YH ebe

Attorney for Plaintiffs Jasmin Ortega and Julieta Hernandez,
Individually and on behalf of all others similarly situated

3

PLAINTIFF’S NOTICE OF MOTION FOR CLASS CERTIFICATIONJonathan M. Lebe (SBN 284605)
Jon@lebelaw.com

Zachary Gershman (SBN 328004)
Zachary@lebelaw.com

Lebe Law, APLC

777 South Alameda Street, 2nd Floor
Los Angeles, CA 90021

Tel: (213) 444-1973

Rodney Mesriani (SBN 184875)
Mesriani Law Group, APLC
Rodney@mesriani.com

5723 Melrose Avenue

Los Angeles, CA 90038

Tel: (310) 921-7056

Fax: (310) 820-1258

Attorneys for Plaintiffs Jasmin Ortega and Julieta Hernandez,
Individually and on behalf of all others similarly-situated

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF LOS ANGELES

Jasmin Ortega and Julieta Hernandez,
Individually and on behalf of all others similarly-
situated

Plaintiffs,
v.

Carson Wild Wings, LLC, A California Limited
Liability Company; PCF Restaurant
Management LLC, A California Limited
Liability Company; Koreatown Wild Wings,
LLC, A California Limited Liability Company;
Baldwin Hills Wild Wings, LLC, A California
Limited Liability Company; Torrance Wild
Wings, LLC, A California Limited Liability
Company; TA Restaurant Group, LLC, A
California Limited Liability Company; Karim
Webb, An Individual; and Edward Barnett, I, an
Individual; and Does 8 through 25, Inclusive,

Defendants.

Case No. BC677389
Honorable Ann Jones — Dept. 11

PLAINTIFFS’ MEMORANDUM OF POINTS
AND AUTHORITIES IN SUPPORT OF
PLAINTIFFS’ MOTION FOR CLASS
CERTIFICATION

Hearing Information:
Date: November 19, 2021

Time: 1:45 p.m.
Dept.: 11

[Notice of Motion for Class Certification;
Declaration of Jonathan M. Lebe and Request fo
Judicial Notice; Declaration of Jasmin Ortega;
Declaration of Julieta Hernandez; Declaration of,
Rodney Mesriani; Plaintiffs’ Trial Plan; and
[Proposed] Order Filed Concurrently Herewith]

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF PLAINTIFFS’ MOTION FOR CLASS CERTIFICATIONI. INTRODUCTION

I. PROPOSED CLASSES
Il. SUMMARY OF COMMON FACTS
A. Defendants’ Meal Period Policies and Practices............+« senecen
B. Defendants’ Rest Break Practices
C. Failure to Pay Overtime and Meal Premiums at the Regular Rate of Pay......... seeaceeenesseeneee 5
D. Defendants’ Failure to Pay Reporting Time Wages .............00+
E. Defendants’ Inaccurate Wage Statements
IV. LEGAL DISCUSSIO
A. The Standard for Class Certification
B. Ascertainability and Numerosity
Cc Well-Defined Community of Interest................ ssevenescesererersesasensesens esevesenessenenceseresseneneseesesnsncnseee 9
Vv. PLAINTIFF’S PROPOSED CLASSES SHOULD BE CERTIFIED ..........000008 aeceneceneesaseessees ll
A.
B.
C.  Plaintiff’s Overtime Pay Class Should Be Certified ............s008 ssscsenceneoseneneenseneneses soeeaee
D. ‘Plaintiffs’ Reporting Time Class Should be Certified peressnereeneeseoee 16
E. The Wage Statement Class Should be Certified
F. The Timely Separation Pay Class Should be Certified
The § 17200 Class Should be Certified
VI. A CLASS ACTION IS THE SUPERIOR PROCEDURE FOR EFFICIENTLY
ADJUDICATING THE CLAIMS OF THE CLASS MEMBERS ......scssssssscsssssecscsssssseceesessesessesneenees 19
VII. CONCLUSION

TABLE OF CONTENTS

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF PLAINTIFFS’ MOTION FOR CLASS CERTIFICATIONTABLE OF AUTHORITIES

Cases

Alberts v. Aurora Behavioral Health (2015) 241 Cal.App.4th 388 .....cccccccsssssssessessesssesseesessessessessee 7, 9, 10
Alvarado y. Dart Container Corp. of California (2018) 4 Cal. Sth 542 .....cccccecsssessssecsecsseessseessessstessseene 15
Amchem Products, Inc. v. George Windsor (1997) 521 U.S. 591 vosceccccecsssssessececsecsesecsesavsnsarsassnsacseenseneaee i
Ayala v. Antelope Valley Newspapers, Inc. (2014) 59. Cal 4th 522 ....cecccecssssssessssecsseesseessseesstscenssssesssecssses 8
Bowles. V. Superior Court (1955) 44 Cal.2d 574 ..esscscsccscsssssesnecsssessesseesssesssccsseessucsssecssescssessesessesssvessses 8
Bradley v. Networkers Internat., LLC (2012) 211 Cal-App.4th 1129 o....ceesccscsssessssesssessseesstesssesseecssecseees 10
Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.Ath 1004 ......seesssscsssessssesssecsessseesseessessse passim
Collins v. Rocha (1972) 7 Cal.3d 232 .....secscecssscssecssesssecssseessnessueesnsesavecsecsuseessecsascsssessuessssesssessecssvessecsssvese 8
Cortez v. Purolator Air Filtration Products Co. (2000) 23 Cal. 4th 163 ..ccccccsccssessessesssesssessessessesssesecssees 19
Donohue v. AMN Services, LLC (2021) 11 Cal. Sth 58 ....ceccscsssssessesseessessssesssecsessneesessssseessessecsesaeenseeee 2,15
Farmers Ins. Exch. V. Superior Court (1992) 2 Cal. 4th 377 ....cscssssssscssssessssessesssessseesssesssecesesssesssceesses 19
Ferra v. Loews Hollywood Hotel, LLC (Cal., July 15, 2021) S259172....ccsssssssssssssessssesssessssesessesusessescssee 13
Gardener v. GC Servs. LP (S.D. Cal. Nov. 1, 2011) 2011 U.S. Dist. LEXIS 126607 ......c.scessesseeseessesses 19
Ghazaryan v. Diva Limousine, Ltd. (2008) 169 Cal.App.4th 1524 .....cccccccccccssessessesssessssssesseesscsssesseenses 10
Hanlon v. Chrysler Corp. (9th Cir. 1998) 150 F.3d 1011, 1019 ..eeesessceesssesssescsseessesssteceseeesseesseeasessseessvess 19
Harper v. 24-Hour Fitness, Inc. (2008) 167 Cal.App.4th 966 ...ccccccsssscssessessssssessesssessesseessesstsstesessessseeseenee 8
Jaimez v Daiohs USA, Inc (2010) 181 Cal.App.4th 1286

Jaimez v. Daiohs USA, Inc. (2010) 181 Cal.App.4th 1286..
Johnson v. GlaxoSmithKline, Inc. (2008) 166 Cal.App.4th 1497
La Sala v. American Sav. & Loan Assn. (1971) 5 Cal.3d 864 ..
Lubin v. The Wackenhut Corp. (2016) 5 Cal. App. 5th 926.
Martinez v. Joe’s Crab Shack Holdings (2014) 231 Cal.App.4th 362
Murphy v. Kenneth Cole Productions (2007) 40 Cal. 4th 1094

nton v. Telecom Network Specialists, Inc. (2012) 220 Cal. App. 4th 70] .cccccssssssssessssesssessssecssssstesssecssees 14

Richmond v. Dart Industries, Inc. (1981) 29 Cal.3d 462, 473 ..ecccscssesssssssssssessssesssessssesssesssvessusessesavecsacenaees 7

Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319 ...cccccsecssescssecssessssesssessssessseessesssees 1,8,9

Seastrom v. Neways, Inc. (2007) 149 Cal.App.4th 1496 ....cecsecsseessssssssessesssecsssecssessseecssesssesesseessessessevens 10

State of California v. Levi Strauss & Co. (1986) 41 Cal.3d 460 oeeesescssscssessseesseccssessssesssssssessadessessssessessses 7

Tyson Foods, Inc. v. Bouaphakeo (2016) 136 S. Ct. 1036 veccccccsesecssessessneesnecssnecsnsesssessseessessecsseceseeeseee 9
ii

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF PLAINTIFFS’ MOTION FOR CLASS CERTIFICATIONA BB wWoN

Union Carbide Corp. v. Superior Court (1984) 36 Cal.3d 15
Van Kempen v. Matheson Tri-Gas, Inc. (N.D. Cal., August 1, 2016) 2016 U.S. Dist. LEXIS 100537... 16
Vasquez v. Superior Court (1971) 4 Cal.3d 800

Statutes

Cal. Bus. & Profs. Code § 17200 ......ccsscscsssssessessessessesssesssesssnsssesuceneeneesussussnesessusenecsussuecseessesecsnesseeseeseess 19
Cal. Civ. Proc. Code § 382 v.sccecsuesssssssescssessssesssesssssuecsusssnessuesseessnsssnsssassnsessusesssessusssseessessssceseseneessesesnee 11
Cal. Lab. Code § 203

Cal. Lab. Code § 226

Cal. Lab, Code § 226.7 ....ccccsssssssssssessesssecsssrsssessnssucsussurssvesucsussneruecarenseeassuessassusenessussussuecaeesecaussnsaeeesessesss 12
Cal. Lab, Code, § 512 ..sccessecsssssssesssessseesssecssnessuessessuesssesssessuessueessnecsnsesnsesuessueesnsesseessusssueessessssessecesecssee 11
Cal Civ. Code § 1781 ...ecessscscsssessssssesssssscssssecssssesssecsessneccsssssssanessssveesssnecssusestsueecsanseeesneeessneessneessneseseneetes 8
Wage Order 5-2001

Other Authorities
Cohelan on California Class Actions (2012-2013 ed) § 2:4.
DLSE Enforcement Policies and Interpretation Manual (Revised) (2002)

iii

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF PLAINTIFFS’ MOTION FOR CLASS CERTIFICATIONIL. INTRODUCTION

Plaintiffs Jasmin Ortega and Julieta Hernandez (“Plaintiffs”) move for class certification based
on the facially and unequivocally illegal wage and hour policies and practices of Defendants Carson Wild
Wings, LLC (“Defendant CWW”), PCF Restaurant Management LLC, A California Limited Liability
Company, Koreatown Wild Wings, LLC, Baldwin Hills Wild Wings, LLC and Torrance Wild Wings,
LLC (collectively “Defendants”). Indeed, as detailed herein, Plaintiffs need only rely on Defendant’s
policy documents, payroll records and time records in order to prove class-wide damages at trial. Claims
which are based on a legal challenge to a policy held uniformly by defendants are entitled to class
certification. (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1033; see also Sav-
On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319; Jaimez v. Daiohs USA, Inc. (2010) 181
Cal.App.4th 1286; and Martinez v. Joe’s Crab Shack Holdings (2014) 231 Cal-App.4th 362, 372.)

In addition to the illegal policies and practices, Plaintiffs submit sworn trial testimony from
putative class members of Defendants’ wage and hour violations from the trial of Ortega v. Carson Wild]
Wings, LLC, Los Angeles Superior Court, Case No. BC677388, in which a jury unanimously found that
Plaintiff Jasmin Ortega had been illegally fired in retaliation for reporting wage and hour violations at
Defendants’ restaurant. Defendants had the opportunity to cross examine these putative class members,
and Plaintiff Ortega proved by clear and convincing evidence that she reported wage and hour violations
at the restaurant and Defendant Carson Wild Wings, LLC wrongfully terminated her in retaliation.

The primary focus for class certification is whether Plaintiffs’ theory of recovery is amenable to
class treatment. Here, the central four issues presented by this case are the legality of: (1) Defendants’
unlawful policies and practices of failing to provide compliant meal and rest breaks; (2) Defendants failing
to pay overtime and other wages at the regular rate of pay; (3) Defendants failing to pay reporting time;
and (4) Defendants’ practice of not including the correct employer name and address on wage statements.

First, Defendants’ meal period policies are facially illegal because they did not instruct class
members to take a meal by the end of the fifth hour of work, did not provide for any second meal period,
and only stated that breaks would “typically” be provided when it was convenient for Defendants and did

not interfere with restaurant operations. Moreover, even once this policy was changed after this lawsuit

1

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF PLAINTIFFS’ MOTION FOR CLASS CERTIFICATIONwas filed, Defendants consistently failed to provide compliant meal periods according to their own
records, creating a presumption of violations under California law. (Donohue v. AMN Services, LLC|
(2021) 11 Cal. 5th 58, 78.) Indeed, Plaintiffs’ expert has found that Defendants failed to provide compliant
meal periods in 37.7% of shifts longer than five hours. Additionally, Defendants’ rest period policies are
illegal because Defendants’ employee handbook fails to provide a rest break policy at all, and instead
class members were instructed to take “off-the-clock” rest periods in violation of the Labor Code. Thus,
Defendants actually kept time records for these illegal “off-the-clock” rest periods, which unequivocally
evidence that paid rest periods were not provided. Indeed, using Defendant’s time records, Plaintiffs’
expert has determined that compliant rest breaks were not provided in 97% of shifts greater than 3.5
hours. Second, Defendants’ overtime practices are unlawful as Defendants fail to include all wages earned
by employees in a given workweek in the regular rate of pay. Similarly, Defendants failed to pay meal
period premiums at the regular rate of pay. Third, Defendants uniformly failed to pay employees reporting
time pay when they showed up to work but were sent home early. Finally, Defendants failed to include
the correct employer name and employer address on wage statements.

Defendants’ unlawful policies and practices apply universally to all class members. The legality’
and existence of Defendants’ policies and practices at issue can and should be determined on a class-wide
basis by resolving these questions of law and fact common to all non-exempt, hourly employees of|
Defendants. Indeed, Plaintiffs’ expert has already analyzed all of the time and payroll records for the
entire class and has determined the violation rates for the claims for which certification is sought. As
these claims can and will be proven by Defendants’ own policies and records, they are eminently suited
for class certification. Accordingly, Plaintiffs respectfully request that the Court grant this motion and
certify the classes.

Il. PROPOSED CLASSES

Plaintiffs seek to certify the following classes: (a) The Reporting Time Pay Class: All non-
exempt current and former employees of Defendants in the State of California from September 26, 2014
to and including the date of class certification; (b) The Overtime Wages Class: All current and former

employees of Defendants in the State of California who received multiple hourly rates for work performed

2

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION23

during the same pay period or received non-discretionary bonuses or compensation from September 26,
2014 to and including the date of class certification; (c) The Meal Break Class: All non-exempt current
and former employees of Defendants in the State of California from September 26, 2014 to and including
the date of class certification; (d) The Rest Break Class: All non-exempt current and former employees
of Defendants in the State of California from September 26, 2014 to and including the date of class
certification; (e) The Wage Statement Class: All non-exempt current and former employees of]
Defendants in the State of California from September 26, 2016 to and including the date of class

certification; (f) The Timely Separation Pay Class: All of Defendants’ non-exempt former employees

who separated from Defendants from September 26, 2014 to and including the date of class certification;
and (g) The 17200 Class: All of Defendants’ non-exempt current and former employees employed by
Defendants from September 26, 2013 to the and including the date of class certification.

Ill. SUMMARY OF COMMON FACTS

During the class period, Defendants have operated four Buffalo Wild Wings restaurants in
California.! The Class Representatives and all proposed class members worked at Defendants’ Buffalo
Wild Wings restaurants in California and were employed by Defendants. Plaintiff Ortega worked at the
Buffalo Wild Wings in Carson from December 2013 to April 2017 as a server and a “Wings Certified
Trainer.”* Plaintiff Hernandez worked at the Buffalo Wild Wings in Carson from December of 2013 to
February of 2016 as a bartender and as a server?

A. Defendants’ Meal Period Policies and Practices

Defendants’ have failed to provide class members with meal periods, maintained a facially
defective meal break policy, and have failed to pay premiums at the regular rate of pay when employees
were not provided a break. Indeed, Defendants’ handbook did not instruct class members to take a meal

by the end of the fifth hour of work and failed to provide a second meal break at all.4 Instead, Defendants

made it clear that breaks were only provided when it was convenient for the company:

Typically, non-salaried employees working at least four consecutive hours are provided with a

' See Declaration of Jonathan M. Lebe (“Lebe Decl.”), Exhibit 3, Deposition of Sandra Reisz at 32:16-33:19 (All future
references to “Exhibit” mean the Exhibits attached to the concurrently-filed Declaration of Jonathan M. Lebe); Exhibits 7-10;
See Exhibit 11, (“Employee Handbook”) at CWW000044.

Declaration of Jasmin rtega ("Ore a Decl") 4 3.
3 Declaration of Julieta Hernandez (“Hernandez Deci.”), 3.
4 Employee Handbook at CWW000058.

3

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF PLAINTIFFS’ MOTION FOR CLASS CERTIFICATIONmeal break of between 30 and 60 minutes. Breaks are scheduled throughout the workday, so as
not to disrupt the business processes of the Company. The Company managers determine
appropriate length and timing of lunch and dinner breaks per their needs.>

This meal break policy was the same throughout Defendants’ four restaurants.® Defendants, after
Plaintiffs filed this lawsuit, changed their employee handbook and revised this policy.’ However, despite
this policy change, Plaintiffs’ expert has found that Defendants have still consistently failed to provide
meal periods or pay meal period premiums owed in 37.7% of eligible shifts.2 This was largely due to
Defendants’ policy of understaffing its restaurants and having the bare minimum number of employees
necessary to service the customers in each restaurant.” Indeed, this failure to provide meal breaks has
been corroborated by putative class members’ sworn testimony in Plaintiff Ortega’s wrongful termination
and whistleblower case, in which the jury unanimously found that Plaintiff Jasmin Ortega had been
illegally fired for reporting wage and hour violations.'° Further, Defendants’ records unequivocally reveal
that meal break penalties were not paid to these employees when they received non-compliant meal
periods as a result of Defendants’ uniform policies and practices.'!

B. Defendants’ Rest Break Practices

Class members were also not provided with rest breaks. Remarkably, Defendants’ original

employee handbook fails to mention rest breaks af all.” Instead, Defendants instructed employees to

clock out of Defendants’ timekeeping system when they would take their rest breaks:

Q. Okay. Just to be clear, the breaks are taken off the clock, so the employees on the system,
they’re swiping out and swiping back in for the rest break; is that true? A. Yeah, that’s what they’re
supposed to be doing, yeah.!?

Further, Defendants admit that they did not schedule rest breaks for employees.’* Instead, employees had

$Id.
© Exhibit 1, Deposition of Person Most Knowledgeable Crystal Barkle (“PMK Barkly Deposition”) at 19:07-21 (“Q The wage|
and hour policies in general have been the same for all four franchise locations; is that correct .. . The Witness: Yes.)

xhibit

it 12, (2017 Revised Employee Handbook”) at CWW007325.
8 Exhibit 13, Declaration of Jarrett Gorlick (“Expert Decl.”), § 12

° PMK Barkley Deposition at 88:15-20.

‘© Exhibit 4, Trial Testimony in Ortega v. Carson Wild Wings, LLC, BC677388 on January 30, 2020 at 64:11-65:28 (“Q...What
about the 30 minute meal breaks? Were you ever provided or were you typically provid witha 30 minute uninterrupted meal
break for every shift longer than five hours? A. It would not happen constantly. They would definitely make you clock out so
they won’t violate, soon paper it looks like ‘Okay Jasmin took a break today but she didn’t.’ It was they would have you work
through it, It was never consistent. . .”); Exhibit 5, Trial Testimony in Ortega v. Carson Wild Wings, LLC, BC677388 on
February 4, 2020 at 33:04-34:09, (“Q. And as a server at the restaurant, did you typically get those 30 minute uninterrupted
meal breaks? A. I wouldn’t say typically, no . . . sometimes we might have got one or two, but overall 1 would say since me
working there it was rare when you got them.®), 79:15-82:07 (*Q. And at the restaurant did you typically get those 30 minute
meal breaks? A. Not most of the time.”).

"Expert Decl., 12, 19.

" PMK Barkley Deposition at 64:16-65:03.

3 PMK Barkley Deposition at 65:15-21, 66:20-25.

‘4 PMK Barkley Deposition at 65:23-24

4

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF PLAINTIFFS’ MOTION FOR CLASS CERTIFICATIONto obtain a manager’s permission to take any break like going to the bathroom.'> Moreover, these policies
and practices were coupled with an understaffing of the restaurants which made it impossible to take rest
breaks.'® Indeed, this failure to provide rest periods was corroborated by putative class members’ sworn
testimony in Plaintiff Ortega’s wrongful termination case.!’ This failure to provide rest breaks has also
been confirmed by Plaintiffs’ expert review of Defendants’ records, due to Defendants’ policy of requiring
rest breaks to be off-the-clock, finding that rest breaks were not provided in 97% of eligible shifts.'®
Plaintiffs’ expert also confirmed that Defendants have never once paid rest period premiums for these
missed breaks, according to the payroll records.!? As a result, these policies and practices led to the
wholesale denial of rest breaks to class members, as captured by Defendants’ own timekeeping system.

C. Failure to Pay Overtime and Meal Premiums at the Regular Rate of Pay

Defendants have to pay all wages due to employees who worked overtime at their correct rate of pay.
Specifically, employees who worked as Wings-Certified Trainers (“WCTs”), trainer employees for
Defendants, were entitled to a dollar more per shift in which they worked as WCTs as a shift premium.°
Additionally, other employees who worked for Defendants would receive bonuses in addition to their
normal wages.”! But, despite these additional wages, Defendants would pay overtime to employees at the
base rate of pay earned during a shift multiplied by 1.5, rather than at the regular rate of pay that an
employee earned based on their average rate of pay including all rates of pay and bonuses multiplied by
1.5. Asa result, Defendants did not pay employees who worked these premium shifts or who received
bonuses all overtime wages owed. Similarly, Defendants use the same IT system for the payment of|

overtime wages as they do for the payment of premium wages for missed meal breaks to its employees.”?

'S PMK Barkley Deposition at 65:25-66:9.
'S See PMK Barkley Deposition at 88:15-30, a
"7 Exhibit 4, Trial Testimony in Ortega vy. Carson Wild Wings, LLC, BC677388 on January 30, 2020 at 63:19-64:10 (“Q. At
the restaurant were you provided with 10 minute paid rest breaks at the restaurant for every four hours you worked? A. No...
ftdhey were never offered and it was just too busy, too many, too many tables to take care of in your Section. You can’t just
leave them there because you could get a walk out. And then you lose money . . . the breaks were not provided.”); Exhibit 5,
Trial Testimony in Ortega v. Carson Wild Wings, LLC, BC677388 on February 4, 2020 at 10:20-11:11 o. As a server at the
restaurant did you ical et 10 minute paid rest breaks? A. No, | did not... That was very rare. And if | did | would have to
ask for it.”), 32:11-33:04 Cos Okay. As an employee at the restaurant did you typically et the 10 minute rest breaks? A. No.
Q. Why not? A: Usually we were just really, really busy. We constantly had people in and no one would have time to give you
a 10 minute break or watch your tables. You were always moving.”), 79:05-14 (“Q. At the restaurant did eu typically get
those 10 minute rest breaks? A. No.”); Exhibit 6, Trial Testimony ‘in Ortega v. Carson Wild Wings, LLC, BC677388 on
February 7, 2020 at 71:04-72:13 (“Q. The 10 minute rest breaks, do you know what those are? A. Yeah the 10 minute. Q. Did
you always get those at the restaurant? A. No. Q. How often did yau not get them? A. All of the time.”)

8 Expert's Decl., § 14.

'° Expert Decl., 4G

0.
20 PMK Barkley eposition at 76:11-13.

2! Expert Decl. {1
22 Expert Decl., {| 18; PMK Barkley Deposition at 32:01-08, 34:24-35:05
23 PMK Barkley Deposition at 32:10-25, 58:17-19.

5

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF PLAINTIFFS’ MOTION FOR CLASS CERTIFICATIONDefendants also failed to pay meal premiums to their employees at the regular rate of pay.24
D. Defendants’ Failure to Pay Reporting Time Wages

As discussed above, Defendants maintained a policy such that their restaurants would only have:
the bare minimum number of employees on duty to service the expected customers in the restaurant.2>
However, when employees were sent home early in furtherance of this policy, they did not receive their
reporting time pay. Defendants’ have claimed that it is their policy is to pay its employees for a minimum
of two hours worked if they are dismissed from their work early.2° However, Defendants do not have an
automatic method of accounting for reporting time pay for its employees, and instead, would award any
purported reporting time pay manually.?’ In deposition, Defendants’ Person Most Knowledgeable was
unaware of the number of times that they had paid employees reporting time pay.® Moreover, two hours
of pay is insufficient for putative class members who typically worked an eight-hour shift or longer, which
would be entitled to four hours of reporting time pay. Plaintiffs expert has determined that the average
shift length for the class was 6.8 hours), so even if two hours of reporting time pay was paid as Defendants
contend, Defendants were unequivocally and admittedly were not paying all reporting time pay for longer
shifts”. Thus, it is little surprise that time and pay records uniformly show that Defendants completely
failed to pay class members reporting time pay.>?

E. Defendants’ Inaccurate Wage Statements

Defendants’ have issued wage statements to employees which failed to include the correct entity
name in violation of Labor Code section 226(a)(8). For example, Defendant CWW issued wage
statements to its employees, including Plaintiff Ortega, which listed the employer name as “Carson Wild
Wings”, rather than “Carson Wild Wings, LLC” and completely failed to include its address.>! Since the
filing of this case, however, Defendants have changed the wage statements they now issue to employees

to include these details — essentially conceding that their previous wage statements were defective.>*

2 Expert Decl. 19.

25 PMK Barkley Deposition at 88:15-20,

26 See PMK Barkley Deposition at 91:06-91:14.

27 PMK Barkley Deposition at 92:04-10.

28 PMK Barkley Deposition at 92:16-23.

2° Expert Declaration, Ex. 3.

*° See Expert Decl., § 10. . .

E Exhibit 14, (Wage statement issued to Plaintiff Ortega); Exhibit 15 (Wage Statements issued to Defendant CWW employee
rika Bustarde).

*? Exhibit 16, (Wage Statement of Torrance Wild Wings, LLC employee Karen Romero dated September 16, 2018.)

6

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF PLAINTIFFS’ MOTION FOR CLASS CERTIFICATIONDefendants’ wage statements also were inaccurate based on the failure to pay meal period premiums, rest
period premiums, overtime, and other wage and hour violations alleged herein.
IV. LEGAL DISCUSSION

A. The Standard for Class Certification

The California Supreme Court has articulated three requirements for the certification of a class:
(See Brinker. 53 Cal. 4th 1004, 1021.) “Specifically, the party advocating class treatment must
demonstrate (1) the existence of an ascertainable and sufficiently numerous class, (2) a well-defined
community of interest, and (3) substantial benefits from certification that render proceeding as a class
superior to the alternatives.” (Alberts v. Aurora Behavioral Health (2015) 241 Cal.App.4th 388, 397,
citing Brinker 53 Cal.4th at 1021.) As discussed further, these factors are al] met in the present case and
Plaintiffs’ motion for class certification should be granted. California’s judicial policy favors the
maintenance of appropriate class actions. (Richmond v. Dart Industries, Inc. (1981) 29 Cal.3d 462, 473.)
Class actions are “an essential tool for the protection . . . against exploitative business practices.” (State
of California v. Levi Strauss & Co. (1986) 41 Cal.3d 460, 471.) California courts are bound by a legislative
mandate to avoid unnecessary procedural barriers to the prosecution of class action lawsuits. (See Union|
Carbide Corp. v. Superior Court (1984) 36 Cal.3d 15, 21-22; La Sala v, American Sav. & Loan Assn.
(1971) 5 Cal.3d 864, 875-76; Vasquez v. Superior Court (1971) 4 Cal.3d 800, 820-21.) This policy in
favor of class actions is so strong that any doubts as to the appropriateness of class treatment must be
resolved in favor of certification, subject to later modification. (Richmond, 29 Cal.3d at 473-75.)

The appropriate certification inquiry here is whether Plaintiffs’ theory of recovery is amenable to
class treatment. When the “theory of recovery” involves, as here, uniform policies and practices
applicable to all putative class members, then the case should be certified. (See Martinez, 231 Cal.App.4th
362 [“classwide relief remains the preferred method of resolving wage and hour claims, even those in
which the facts appear to present difficult issues of proof”); see also Brinker, 53 Cal. 4th at 1033 [Claims
alleging that uniform policy consistently applied to a group of employees in violation of the wage and
hour laws are of the sort routinely, and properly, found suitable for class treatment”); Sav-On Drug Stores,

Inc., 34 Cal.4th at 330; Jaimez, 181 Cal.App.4th at 1299; Ayala v. Antelope Valley Newspapers, Inc.

7

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION(2014) 59 Cal.4th 522, 534; and Martinez, 231 Cal. App. 4th at 372.)

Here, this case is by its nature eminently suitable for class treatment as each of the classes are a
claim based on uniform policies and practices of the Defendants and reflected in Defendants’ own records.
Claims based on a legal challenge to a uniform policy or practice are entitled to class certification. (See
Brinker, 53 Cal.4th 1004, 1033; see also Sav-On Drug Stores, Inc, 181 Cal. App.4th 1286; Ayala v.
Antelope Valley Newspapers, Inc. (2014) 59. Cal.4th 522, 534; and Martinez, 231 Cal.App.4th 362, 372.)

B. Ascertainability and Numerosity

A class is ascertainable if it “identifies a group of unnamed plaintiffs by describing a set of|
common characteristics sufficient to allow a member of that group to identify himself as having a right to
recover based on the description.” (Harper v. 24-Hour Fitness, Inc. (2008) 167 Cal.App.4th 966, 977
[citation omitted.) Here, members of the proposed classes are all non-exempt current and former
employees of the Defendants. The information needed to identify them all can be ascertained from
Defendants’ employment records. Defendants’ personnel files, which are maintained for each and every
employee, include information on the employee’s name and last known contact information.*? Further,
Defendants’ pay and time records which are electronically stored and searchable identify dates and hours
worked, position, and pay rate for each employee.>*

In California, a class is not required to have any specific number of class members to satisfy the
numerosity requirement. Pursuant to California Civil Code section 1781(b)(1) a class is sufficiently
numerous if “it is impracticable to bring all members of the class before the court.” California courts have
approved class treatment for a class with as few as ten members. (Bowles. V. Superior Court (1955) 44
Cal.2d 574; see also Collins v. Rocha (1972) 7 Cal.3d 232 [upholding a class action filed by nine named
plaintiffs on behalf of 35 class members].) Here, Defendants have provided Plaintiffs with lists of non-
exempt employees at their restaurant locations which have revealed that there are hundreds of putative
class members, and Plaintiffs’ expert has separately identified 1,440 potential class members in
Defendants’ time and payroll records.> Thus, the classes are ascertainable based on Defendants’

employment records and numerous under any legal standard.

33 See PMK Barley Deposition at 104:23-105:23.
34 Expert Dec, J 7-8.
35 Lebe Decl {| 13; Expert Decl., 9.

8

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF PLAINTIFFS’ MOTION FOR CLASS CERTIFICATIONC. Well-Defined Community of Interest

A well-defined “community of interest” is established when (1) common questions of law or fact
predominate; (2) the claims of the class representatives are typical of the class; and (3) the class
representatives can adequately represent the class. (Sav-On Drug Stores, Inc., 34 Cal.4th at 326.) There
is a well-defined community of interest here because (a) common questions of law and fact predominate
~ Defendants’ illegal policies and practices were widespread and applied to members of the proposed
Classes; (b) the representative Plaintiffs are seeking the same relief based on the same facially illegal
policies as are the members of the proposed Classes; and (c) the members of the proposed Classes are
adequately represented by the representative Plaintiffs and their counsel.

1. Predominance

Class Certification is “essentially a procedural question that does not ask whether an action is
legally or factually meritorious.” (Alberts, 241 Cal.App.4th at 397, citing Brinker, 53 Cal.4th at 1023;
See Sav-On Drug Stores, Inc. v. Superior Court, 34 Cal.4th at 326; Jaimez v Daiohs USA, Inc (2010) 181
Cal.App.4th 1286, 1298.) “A class certification motion is not a license for a free-floating inquiry into the
validity of the complaint’s allegations; rather; resolution of disputes over the merits of a case generally
must be postponed until after class certification has been decided ....” (Brinker, 53 Cal.4th. at 1023.)
Instead, “the focus in a certification dispute is on what type of questions—common or individual—are
likely to arise in the action...” (Sav-On Drug Stores, Inc, 34 Cal.4th at 327).

“The predominance inquiry asks whether the common, aggregation-enabling, issues in the case
are more prevalent or important.than the non-common, aggregation-defeating, individual issues.” (Tyson
Foods, Inc. v. Bouaphakeo (2016) 136 S. Ct. 1036, 1045.) “The ‘ultimate question’ the element of
predominance presents is whether ‘the issues which may be jointly tried, when compared with those
requiring separate adjudication, are so numerous or substantial that the maintenance of a class action
would be advantageous to the judicial process and to the litigants.’” (Brinker, 53 Cal.4th at 1021.) “Asa
general rule if the defendant’s liability can be determined by facts common to all members of the class, a
class will be certified even if the members must individually prove their damages.” (Jd. at 1021-22.)

“Brinker [citation omitted] does not require class proponents to establish the universal application

9

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF PLAINTIFFS’ MOTION FOR CLASS CERTIFICATIONCD eID

25

of an allegedly illegal policy; rather, a class proponent need only show a ‘consistent’ application of the
policy.” (Alberts, 241 Cal.App.4th 399 at 409.) “{C]ourts have repeatedly found that a defendant
employer’s evidence of an inconsistent application of an illegal policy to be insufficient on its own to
defeat class certification.” (/d.) Thus, as is the case here, “claims alleging that a uniform policy
consistently applied to a group of employees is in violation of the wage and hour laws are of the sort
routinely, and properly, found suitable for class treatment...” (Bradley v. Networkers Internat., LLC|
(2012) 211 Cal.App.4th 1129, 1143, citing Jaimez, 181 Cal.App.4th 1286; also citing Ghazaryan v. Diva
Limousine, Ltd. (2008) 169 Cal.App.4th 1524; also citing Bufil v. Dollar Financial Group, Inc. (2008)
162 Cal.App.4th 1193, 1205-6.)

Here, as detailed below for each proposed class, Plaintiffs show that common issues of fact and
law predominate the classes to be certified. Plaintiffs rely upon uniform policies and practices to show
Defendants’ violation of California wage and hour laws, as well as unequivocal evidence from
Defendant’s own records. Indeed, Defendants’ payroll and time records demonstrate that they failed to
provide complaint meal periods in 37% of shifts* and failed to provide compliant rest periods in 97% of|
shifts.?” Common issues of fact and law predominate.

2. Plaintiffs’ Claims are Typical of the Proposed Classes

The typicality requirement ensures that the interests of the class representatives align with those
of the class. (Seastrom v. Neways, Inc. (2007) 149 Cal.App.4th 1496, 1502.) This typicality requirement
is satisfied “whether other members have the same or similar injury, whether the action is based on conduct
that is not unique to the named plaintiffs, and whether other class members have been injured by the same
course of conduct.” (Johnson v. GlaxoSmithKline, Inc. (2008) 166 Cal.App.4th 1497, 1509.)

Here, the class representatives worked as hourly employees for Defendants for many years and
suffered the same wage and hour violations as all other putative class member, as described above.*® Thus,

their claims are typical of the proposed classes.*?

36 Expert Declaration, 12.

37 Expert Declaration, } 14.

3 Ortega Decl., $f 4-8, 14; Hernandez Decl., $f] 4-5, 9; See PMK Barkley Deposition at 105:25-110:21.

°° If Defendants argue that Plaintiffs are not representative because they Only worked at one restaurant location, Class Counsel
has been retained by additional putative class members who worked for Defendant Baldwin Hills Wild Wings, LLC and
Defendant Torrance Hills Wild Wings, LLC. Moreover, and as explained in Plaintiffs’ concurrently filed trial plan, Defendants|
are liable collectively under an integrated enterprise or joint employment theory.

10

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF PLAINTIFFS’ MOTION FOR CLASS CERTIFICATIONAw BR Ww NY

3. Plaintiffs and Their Counsel Will Adequately Represent the Proposed Classes

“Adequacy” regards examination of both the proposed class representatives and of the proposed
class counsel. (Cal. Civ. Proc. Code § 382.). The class representatives “assume[] a fiduciary obligation
to the members of the class, surrendering any right to compromise the group action in return for an
individual gain.” (La Sala, 5 Cal.3d 864, 871.) The adequacy requirement “serves to uncover conflicts
of interest between named parties and the class they seek to represent.” (Amchem Products, Inc. v. George
Windsor (1997) 521 U.S. 591, 625-26.) And, “[a] key element in determining the class representative’s
adequacy is that person’s ability and willingness to pursue the class members’ claims vigorously.”
(Cohelan on California Class Actions (2012-2013 ed) § 2:4)

Here, Plaintiffs’ claims are entirely coextensive and align with the interests of the proposed
Classes, as Plaintiffs were injured by the same company-wide policies and practices that injured the other
Class members and they seek the same relief.” Likewise, Plaintiffs’ counsel also satisfies the adequacy
requirement. Plaintiffs’ counsel are well-experienced in litigating wage-and-hour class actions. Plaintiffs’
counsel’s wage-and-hour class action expertise establish that they are well-qualified to represent the
interests of the proposed Classes and should be appointed class counsel.*!

v. PLAINTIFF’S PROPOSED CLASSES SHOULD BE CERTIFIED

A. — The Meal Period Class Should Be Certified

An employer in California must provide its non-exempt employees with an uninterrupted meal
period of no less than thirty minutes prior to the fifth hour of work. (Lab. Code, § 512; Wager Order 5-
2001, § 11.) The California Supreme Court has declared that meal periods are a public policy concern
affecting employee and general public health and welfare. (Murphy v. Kenneth Cole Productions (2007)
40 Cal. 4th 1094.) “Employees denied their rest and meal periods face greater risk of work related
accidents and increased stress, especially low-wage workers who often perform manual labor.” (Id. at
1113.) The existence of a non-compliant meal period policy by an employer has been found alone to be
enough to support class certification as to meal period claims against an employer, and reverse denial of|

class certification. (See Alberts v. Aurora Behavioral Health Care (2015) 241 Cal. App. 4th 388, 405-

+ Ortega Decl., 914; Hernandez Decl., ] 9.
‘" Lebe Decl., ff 3-12; Declaration of Rodney Mesriani, {J 2-7.
u

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF PLAINTIFFS’ MOTION FOR CLASS CERTIFICATIONCo em ND HW

406 [Reversing denial of class certification in a case in which an employee’s meal period policy failed to
provide that meal periods must be taken before the end of the fifth hour of work].)

Further, “[i]f time records show noncompliant meal periods, then a rebuttable presumption of|
liability arises. This presumption applies at the summary judgment stage, and the employer may rebut the
presumption with evidence of bona fide relief from duty or proper compensation.” (Donohue, 11 Cal.
Sth at 78.) “An employer’s assertion that an employee waived a meal period ‘is not an element that a
plaintiff must disprove as part of the plaintiff's case-in-chief . . . [i]Jnstead, the assertion is “an affirmative
defense,” and “the burden is on the employer, as the party asserting waiver, to plead and provide it.” (Id.
citing Brinker, 53 Cal.4th 1004, 1034 [conc. opn. of Werdegar, J.].) “[T]he presumption goes to the
question of liability and applies at the summary judgment stage, not just at the class certification stage.”
(Donohue, 11 Cal. Sth at 78.) Labor Code section 226.7 and Wage Order 5-2001, § 11 (B) require an
employer to pay an additional hour of compensation at the regular rate of pay for each meal period the
employer fails to provide a lawful meal period regardless the extent of the violation.

Here, Defendants have failed to provide class members with meal periods. Indeed, Defendants’
original handbook includes a defective policy which did not instruct class members to take a meal by the
end of the fifth hour of work, did not provide for any second meal period, and only stated that breaks
would “typically” be provided.*? Through this uniform policy in force at each of the four restaurants,

Defendants made clear that breaks were only provided when it was convenient for the company:
Typically, non-salaried employees working at least four consecutive hours are provided with a
meal break of between 30 and 60 minutes. Breaks are scheduled throughout the workday, so as

not to disrupt the business processes of the Company. The Company managers determine

appropriate length and timing of lunch and dinner breaks per their needs.

Thus, Defendants failed to provide meal periods before the end of the fifth hour of work (just like the meal
period policy at issue in Alberts), only permitted meal breaks when it was convenient for the company
and failed to provide for second meal periods at all. For these reasons alone, the class should be certified.

Furthermore, Plaintiffs’ expert has found that Defendants have consistently failed to provide meal
periods or pay meal period premiums owed. This was largely due to Defendants’ policy of understaffing

its restaurants and having the bare minimum number of employees necessary to service the customers in

42 Employee Handbook at CWW000058; PMK. Barkley Deposition at 19:19-24,
3 Employee Handbook at CWW000058 (emphasis added).

12

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF PLAINTIFFS’ MOTION FOR CLASS CERTIFICATIONeach restaurant. Further, this failure to provide meal breaks has been corroborated by putative class
members’ sworn testimony in Plaintiff Ortega’s wrongful termination case.*> This practice is also subject]
to common proof through Defendants’ records which show that meal periods were not provided in 37.7%
of eligible shifts (put differently, violations in 65,420 meal period eligible shifts); Defendants only paid
meal premiums for 1,009 violations, or about one-sixtieth of the time when a meal period violation
occurred.“* This damning evidence creates a presumption that Defendants denied class members meal
periods under Donohue.

Defendants also unlawfully failed to pay meal premiums at the regular rate of pay, as the California
Supreme Court recently confirmed is required in Ferra v. Loews Hollywood Hotel, LLC (Cal., July 15,
2021) $259172, *25. Indeed, Defendants failed to include shift premiums and bonuses into the regular
rate of pay for meal premiums.‘” Asa result, this class may be certified independently on this basis alone.

Thus, the meal period class should be certified as a result of Defendants’ facially illegal policies
and documented failure to provide meal periods and corresponding premiums.

B. Plaintiffs’ Rest Period Claim Should Be Certified

Wage Order 5-2001 provides: “Every employer shall authorize and permit all employees to take
rest periods, which insofar as practicable shall be in the middle of each work period. The authorized rest
period time shall be based on the total hours worked daily at the rate of ten (10) minutes net rest'time per
four (4) hours or major fraction thereof. . ..” “Claims alleging that a uniform policy consistently applied
to a group of employees is in violation of the wage and hour laws are of the sort routinely, and properly,
found suitable for class treatment.” (Brinker, 53 Cal. 4th 1004, 1033.)

Here, class members were not provided with rest breaks. Defendants’ employee handbook failed
to mention rest breaks at all.“* California appellate courts have made clear this is grounds alone for
certification: “The lack of a meal/rest break policy and the uniform failure to authorize such breaks are
matters of common proof. Alth