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1 STAN S. MALLISON, Bar No. 184191
HECTOR R. MARTINEZ, Bar No. 206336
2 MALLISON & MARTINEZ ELECTRONICALLY
1939 Harrison Street, Suite 730 F I L E D
3 Superior Court of California,
Oakland, California 94612 County of San Francisco
4 Telephone: (510) 832-9999
11/13/2019
Email: stanm@themmlawfirm.com Clerk of the Court
5 hectorm@themmlawfirm.com BY: JUDITH NUNEZ
Deputy Clerk
6 EMILY P. RICH, Bar No. 168735
ROBERTA D. PERKINS, Bar No. 153074
7 CAITLIN GRAY, Bar No. 305118
WEINBERG, ROGER & ROSENFELD
8
1001 Marina Village Parkway, Suite 200
9 Alameda, California 94501
Telephone: (510) 337-1001
10 Email: erich@unioncounsel.net
rperkins@unioncounsel.net
11
MATTHEW J. MATERN, Bar No. 159798
12 KIRAN PRASAD, Bar No. 255348
RASTEGAR & MATERN, PC
13
1230 Rosecrans Avenue, Suite 200
14 Manhattan Beach, California 90266
Telephone: (310) 531-1900
15 Email: mmatern@maternlawgroup.com
kiranprasad1000@gmail.com
16
Class Counsel and Attorneys Plaintiffs
17
SUPERIOR COURT OF THE STATE OF CALIFORNIA
18
IN AND FOR THE COUNTY OF SAN FRANCISCO
19
JCCP NO. 4502
20 COORDINATION PROCEEDING
CLASS ACTION
21 SPECIAL TITLE [Rule 1550 (b)]
22 PLAINTIFFS' REPLY IN SUPPORT OF
MOTION TO AMEND OR MODIFY
ABM INDUSTRIES OVERTIME CASES CLASS CERTIFICATION ORDER
23 This Document Relates To: All Actions.
24 Date: November 18, 2019
Time: 1:30 p.m.
25 Dept.: 613
Judge: Hon. Teri Jackson
26 Complaint Filed: April 7, 2006
27
28
PLAINTIFFS’ REPLY IN SUPPORT OF MOTION TO AMEND OR MODIFY CLASS CERTIFICATION ORDER
1
TABLE OF CONTENT
2
3
4 I. INTRODUCTION ............................................................................................................ 5
5 II. ARGUMENT.................................................................................................................... 5
6 A. THIS MOTION IS PROCEDURALLY PROPER ...................................................... 5
7 1. Plaintiffs Seek Amendments to an Existing Class Certification Order Which
Is Permitted by California Rules of Court and Case Law ................................ 5
8
2. The 2011 Order Denying Certification Did Not Survive Appellate Scrutiny
9 and Even If It Did, It Was Expressly Without Prejudice ................................. 6
10 3. Even if the Court Finds Some Part of the 2011 Order Survived, this Motion
Advances New Subclasses Not Addressed by the Prior Order......................... 6
11
4. Plaintiffs Need Not Meet the C.C.P. § 1008 Standard, but Certainly Can ........ 7
12
B. PLAINTIFFS’ COMBINED BREAK CLAIM SHOULD BE CERTIFIED................ 9
13
1. ABM Had a Policy of Combining Breaks in the Los Angeles Region ............. 9
14
2. The Legal Question ABM Notes Is a Predominant Common Question .......... 10
15
3. Plaintiffs’ Claims Are Typical of the Class ................................................... 11
16
4. ABM’s Evidence Suggesting Workers Got “Extra” Breaks Is Irrelevant ....... 12
17
C. PLAINTIFFS’ WAGE STATEMENT CLAIM SHOULD BE CERTIFIED ............. 13
18
1. The Claim Presents Common Questions Susceptible to Common Proof ........ 13
19
2. ABM Will Lose on the Merits of the Wage Statement Claim ........................ 15
20
3. Named Plaintiffs’ Claims Are Typical .......................................................... 16
21
D. THE FAILURE TO PRESERVE RECORDS CLAIM SHOULD BE CERTIFIED .. 16
22
1. ABM’s Newly-Minted Defense that Some Crews “Ceased Operations”
23 Presents a Common Legal Question ............................................................. 16
24 2. ABM Did Not Maintain Employees’ Time Records ...................................... 18
25 E. NO TRIAL PLAN WAS REQUIRED FOR THIS MOTION ................................... 19
26 III. CONCLUSION............................................................................................................... 20
27
28
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PLAINTIFFS’ REPLY IN SUPPORT OF MOTION TO AMEND OR MODIFY CLASS CERTIFICATION ORDER
1
TABLE OF AUTHORITIES
2 Page(s)
3 Federal Cases
Coalition v. McCammon,
4 (E.D. Cal. 2010) 725 F.Supp. 2d 1162 ........................................................................................9
5 Hanlon v. Chrysler Corp.,
6 (9th Cir. 1998) 150 F. 3d 1011 .................................................................................................. 12
7 Lyon v. U.S. Immigration & Customs Enforcement,
(N.D. Cal. 2015) 308 F.R.D. 203 ................................................................................................6
8
Magadia v. Wal-Mart Associates, Inc.,
9
(N.D. Cal. 2018) 319 F.Supp. 3d 1180 ...................................................................................... 16
10
McKenzie v. Federal Exp. Corp.,
11 (C.D. Cal. 2011) 765 F.Supp. 2d 1222 ...................................................................................... 16
12 Ovieda v. Sodexo Operations, LLC,
(C.D. Cal. 2013) 12 GHK 1750………………………………………………………………….15
13
Reinhardt v. Gemini Motor Transport,
14 (E.D.Cal. 2012) 879 F.Supp. 2d 1138 ....................................................................................... 15
15 Senne v. Kan. City Royals Baseball Corp.,
(N.D. Cal. 2016) 315 F.R.D. 523………………………………………………………………..12
16
U.S. v. Taylor,
17 (M.D.N.C. 1996) 166 F.R.D. 356.............................................................................................. 10
18
State Cases
19 ABM Industries Overtime Cases,
(2017) 19 Cal.App.5th 277........................................................................................................ 17
20
21 Armstrong v. Davis,
(9th Cir. 2001) 275 F.3d 849 .......................................................................................................6
22
Atlantic Mutual Ins. Co. v. J. Lamb, Inc.,
23 (2002) 100 Cal.App.4th 1017......................................................................................................9
24
Bradley v. Networkers Internat., LLC,
25 (2012) 211 Cal.App.4th 1129.............................................................................................. 15, 17
26 Brinker Restaurant Corp. v. Superior Court
(2012) 53 Cal.4th 10041. .............................................................................................................. 10
27
28 Bufil v. Dollar Financial Group, Inc.,
(2008) 162 Cal.App.4th 1193.................................................................................................... 15
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PLAINTIFFS’ REPLY IN SUPPORT OF MOTION TO AMEND OR MODIFY CLASS CERTIFICATION ORDER
1
Dailey v. Sears, Roebuck & Co.,
2 (2013) 214 Cal.App.4th 974...................................................................................................... 14
3 Duran v. U.S. Nat’l Bank,
(2018) 19 Cal.App.5th 630........................................................................................................ 19
4
Faulkinbury v. Boyd & Associates, Inc.,
5
(2013) 216 Cal.App.4th 220................................................................................................ 13, 14
6
First American Title Insurance Co. v. Superior Court,
7 (2007) 146 Cal.App.4th 1564.................................................................................................... 12
8 Ghazaryan v. Diva Limousine, Ltd.,
9 (2008) 169 Cal.App.4th 1524.................................................................................................... 14
10 Glade v. Glade,
(1995) 38 Cal.App.4th 1441........................................................................................................8
11
Industrial Welfare Com. v. Superior Court,
12 (1980) 27 Cal.3d 690 ................................................................................................................ 18
13
La Sala v. Am. Sav. & Loan Ass'n,
14 (1971) 5 Cal.3d 864 .................................................................................................................. 12
15 Maldonado v. Epsilon Plastics, Inc.,
(2018) 22 Cal.App.5th 1308........................................................................................................7
16
17 Maldonado v. Superior Court,
(2002) 94 Cal.App.4th 1390........................................................................................................9
18
Occidental Land, Inc. v. Superior Court,
19 (1976) 18 Cal.3d 355 ..................................................................................................................5
20
Payton v. CSI Electrical Contractors, Inc.,
21 (2018) 27 Cal.App.5th 832........................................................................................................ 13
22 Raines v. Coastal Pacific Food Distributors, Inc.,
(2018) 23 Cal.App.5th 667........................................................................................................ 15
23
Rodriguez v. E.M.E., Inc.,
24
(2016) 246 Cal.App.4th 1027......................................................................................................7
25
Scott v. Indian Wells,
26 (1972) 6 Cal.3d 541 .................................................................................................................. 12
27 Trotsky v. Los Angeles Fed. Sav. & Loan,
(1975) 48 Cal.App.3d 134.................................................................................................... ….12
28
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PLAINTIFFS’ REPLY IN SUPPORT OF MOTION TO AMEND OR MODIFY CLASS CERTIFICATION ORDER
Vasquez v. Superior Court,
1
(1971) 4 Cal.3d 800 ....................................................................................................................5
2
Williams v. Russ,
3 (2008) 167 Cal.App.4th 1215.................................................................................................... 10
4 State Statutes
Cal. Code of Civil Procedure § 2025.230…………………………………………………………....9
5
Cal. Code of Civil Procedure § 2025.620(b)………………………………………………………...9
6
7 Cal. Labor Code § 226………………………………………………………………………15, 17, 19
8 Cal. Labor Code § 226 (a)…………………………………………………………………………..15
9 Cal. Labor Code § 226 (e)…………………………………………………………………………..15
10 Cal. Labor Code § 226 (a) (6)……………………………………………………………7, 13, 14, 16
11 Cal. Labor Code § 226 (a) (8)……………………………………………………………………….7
12 Cal. Labor Code § 226 (e) (6)……………………………………………………………………….14
13 Cal. Labor Code § 226.7…………………………………………………………………………….7
14 Cal. Labor Code § 1174………………………………………………………………………….... 16
15 Cal. Labor Code § 1174.5………………………………………………………………………..... 17
16 Federal Rules
Federal Rule of Civil Procedure, Rule 23(c)(1)(C) .........................................................................5
17
18 Other Authorities
ABM cites to Villa v. Tyco Elec. Corp.,
19 2011 U.S. Dist. 1697................................................................................................................. 10
20
3 Newberg on Class Actions § 7:32 (5th ed.)……………………………………………………….6
21
IWC Wage Order 5-2001 § 7 ……………………………………………………………7, 11,17, 19
22
23
24
25
26
27
28
4
PLAINTIFFS’ REPLY IN SUPPORT OF MOTION TO AMEND OR MODIFY CLASS CERTIFICATION ORDER
1 I. INTRODUCTION
2 Plaintiffs have provided sufficient relevant evidence to certify additional subclasses of
3 employees who have performed work for ABM. Although Defendants (“ABM”) raise many issues,
4 none preclude or negate the appropriateness of class certification.
5 II. ARGUMENT
6 A. THIS MOTION IS PROCEDURALLY PROPER
1. Plaintiffs Seek Amendments to an Existing Class Certification Order Which Is
7 Permitted by California Rules of Court and Case Law
8 This motion seeks amendments to an existing certification order. The California Rules of
9 Court expressly permit such amendments. ABM refuses to accept that Plaintiffs are a certified class.
10 Because of this, ABM does not address the CRCs which permit amendments to such orders, nor does
11 it address Plaintiffs’ binding authority, Occidental Land, Inc. v. Superior Court (1976) 18 Cal.3d
12 355, which holds that when plaintiffs are successful in their certification bid, successive motions
13 regarding certification are permitted.
14 Instead, ABM relies on irrelevant cases dealing with challenges to the denial of certification
15 through C.C.P. § 1008, such as Stephen and Safaie. (Opp. pp. 12-13.) Those cases concern only
16 whether plaintiffs can “try again” after an order denying class certification; they have nothing to
17 teach us about amendments to an existing certification order. Also, Payton, which features
18 prominently in ABM’s opposition for the principle that a plaintiff “ordinarily gets one shot at a class
19 certification motion,” has no application here, because, again, there is a certified class. In Payton, the
20 Court of Appeal denied plaintiff’s motion for certification and leave to find another plaintiff because
21 doing so would not correct the certification motion’s flaws.
22 The California Rules of Court do not dictate a standard for amending a certification order.
23 However, courts are authorized “to utilize the procedures in rule 23 of the Federal Rules of Civil
24 Procedure, and observed that a certification order issued under rule 23 ‘may be conditional and may
25 be altered or amended before a decision on the merits.’” (Occidental Land, Inc. v. Superior
26 Court (1976) 18 Cal.3d 355, 360, citing Vasquez v. Superior Court (1971) 4 Cal.3d 800, 821.)
27 The federal rules provide that once class certification is granted that such order “may be …
28 amended before final judgment.” Fed.R.Civ.P. 23(c)(1)(C). Cases interpreting the federal rules leave
5
PLAINTIFFS’ REPLY IN SUPPORT OF MOTION TO AMEND OR MODIFY CLASS CERTIFICATION ORDER
1 this modification to the discretion of the court. (Lyon v. U.S. Immigration & Customs
2 Enforcement (N.D. Cal. 2015) 308 F.R.D. 203, 210; see Armstrong v. Davis (9th Cir. 2001) 275 F.3d
3 849, 871 n. 28 [district courts may revisit certification throughout legal proceedings].) California
4 authority therefore does not require Plaintiffs to meet the C.C.P. § 1008 factors to amend or modify
5 an order to expand the scope of the litigation. (Lyon, supra, 308 F.R.D. at p. 210–211.)
6 Plaintiffs seeking to add classes to an existing order, therefore, need show only that the class
7 certification requirements are met. Having done so, there is no procedural impediment to
8 certification of the three proposed subclasses here.
2. The 2011 Order Denying Certification Did Not Survive Appellate Scrutiny and
9
Even If It Did, It Was Expressly Without Prejudice
10 ABM argues as if Judge Kramer’s denial order survived appellate review. It did not. ABM
11 offers no explanation as to how it did survive, given that every principle in the order was deemed
12 erroneous by the Court of Appeal. (Mot. 17-18.) Plaintiffs’ cases holding that a reversal extends to
13 the entire judgment where the defects causing reversal affect the un-appealed portions, are
14 dispositive on this issue.
15 Next, ABM argues that Judge Kramer intended the order to be with prejudice because he had
16 crossed out “without” at the end of the order. (This is irrelevant, because the order was reversed
17 entirely.) However, the opening paragraph of the order states “without prejudice.” Plaintiffs had
18 submitted their own version of the proposed order denying class certification to the Court and listed
19 a number of edits to the one supplied by ABM. (Plaintiffs’ Compendium of Evidence iso Reply
20 “Reply CE” 1). The trial court elected to sign Plaintiffs’ version which included the “without
21 prejudice” language. ABM had the opportunity to clarify any perceived ambiguity in the order and
22 has waived any argument on this point. If any part of the 2011 order denying class certification
23 survived, however, and the Court finds that the order encompasses the subclasses advanced herein,
24 Plaintiffs still are free to bring this Motion anew because it was made “without prejudice.”
25 3. Even if the Court Finds Some Part of the 2011 Order Survived, this Motion
Advances New Subclasses Not Addressed by the Prior Order
26 The subclass is “created solely to expedite resolution of the case by segregating [a distinct
27 legal] issue [that is] common to some members of the existing [class].” (3 Newberg on Class Actions
28
6
PLAINTIFFS’ REPLY IN SUPPORT OF MOTION TO AMEND OR MODIFY CLASS CERTIFICATION ORDER
1 § 7:32 (5th ed.).) The proposed additional subclasses differ from prior subclasses in both fact and
2 law. Any surviving vestige of the 2011 Order, therefore does not affect the instant motion.
3 The current “combined break subclass” differs from earlier “rest break premium subclass” in
4 both law and fact. Plaintiffs allege that ABM’s policy of combining breaks violates the provision of
5 Wage Order 5-2001 requiring rest breaks to be provided on either side of the meal break and in the
6 middle of each work period. (Labor Code sec. 226.7; Wage Order 5-2001; Rodriguez v. E.M.E., Inc.
7 (2016) 246 Cal.App.4th 1027.) By contrast, the earlier “rest break premium subclass” alleged that
8 ABM did not provide premium pay when employees missed their rest breaks. (Reply CE 2).
9 Factually, the “rest break premium subclass” concerned whether ABM paid premiums for missed
10 rest breaks, whereas the current combined break subclass concerns whether ABM provided a mid-
11 work period opportunity to rest. Because the two subclasses are distinct with respect to fact and law,
12 Judge Kramer’s denial of the “rest break premium subclass” could have no effect on certification of
13 the “combined break subclass” (even if that denial had not been reversed).
14 The wage statement subclass advanced here also differs from the prior paystub subclass in
15 law and fact. Section 226(a)(6) requires employers to provide the inclusive dates of the pay period
16 on the wage statement (“pay period subclass”) whereas Section 226(a)(8) requires employers to
17 supply their address on wage statements (“address subclass”). These classes advance two distinct
18 legal claims. (See, e.g., Maldonado v. Epsilon Plastics, Inc. (2018) 22 Cal.App.5th 1308, 1335.) The
19 two subclasses also differ factually. The current “pay period subclass” depends on whether the wage
20 statement shows the starting date for the pay period, whereas the earlier “address subclass” depended
21 on whether ABM provided a physical address on its wage statements.1 (Reply CE 3).
22 4. Plaintiffs Need Not Meet the C.C.P. § 1008 Standard, but Certainly Can
23 There is no case holding that Plaintiffs must meet the C.C.P. § 1008 standard in order to
24 amend a class certification order. Plaintiffs addressed this issue in the Motion only in the event the
25 Court finds that reconsideration of the 2011 order is warranted (rather than amending the 2018
26 certification order). If, however, Plaintiffs must meet the C.C.P. § 1008 factors, they can.
27
1
28 ABM’s opposition does not allege that Plaintiffs previously sought certification of a record-keeping subclass,
so that subclass need not be addressed here.
7
PLAINTIFFS’ REPLY IN SUPPORT OF MOTION TO AMEND OR MODIFY CLASS CERTIFICATION ORDER
1 The standard for “new facts” justifying reconsideration simply requires a satisfactory
2 explanation as to why those facts were not presented earlier. (Glade v. Glade (1995) 38 Cal.App.4th
3 1441, 1457.) Plaintiffs have provided a satisfactory explanation. A change in the law that prevents
4 reliance on former decisions is a change in law that warrants reconsideration because it changes the
5 legal context surrounding the decision. (See Phillips v. Sprint PCS (2012) 209 Cal.App.4th 758,
6 768-769.) Even without a change of law, a trial court may exercise its inherent jurisdiction to
7 reconsider an interim ruling. (Le Francois v. Goel (2005) 35 Cal.4th 1094, 1107.)
8 As to the combined rest break subclass: Plaintiffs took the PMK deposition re: ABM rest
9 and meal break policies in 2007. Mr. Algaheim unequivocally stated that there is no policy other
10 than the one contained in employee handbook. (CE 2.) ABM claims that the Plaintiffs should have
11 learned of an unwritten combined break policy because there were two declarations attesting to a
12 one-hour break. (Opp. p. 15.) Even if those declarations were sufficient to tip Plaintiffs off as to the
13 region-wide policy, that line of investigation was foreclosed by the PMK testimony that there was no
14 rest break policy other than the employee handbook.
15 As to the failure to preserve records subclass: ABM states that Plaintiffs knew that ABM’s
16 record-keeping as to the sign-in sheets was abysmal back in 2010 when they moved to compel their
17 production for the entire class. (Ibid). This is simply not supported by the record. On December 15,
18 2010, Plaintiffs propounded Request for Production (Set 2) in an effort to procure the "sign-in/sign-
19 out" sheets for the entire class period collected from all California job locations. (Reply CE 4.)
20 Plaintiffs agree to a sample but moved to compel production of the sign-in sheets because the sample
21 ABM had selected and produced was inadequate for Plaintiffs’ expert’s analysis. (Reply CE 5). The
22 motion to compel did not allege that ABM had not maintained the sign-in sheets. Rather, Plaintiffs
23 argued that the sign-in sheets were so important that a fuller production was warranted.
24 ABM’s opposition to the motion to compel admitted that Plaintiffs sought “additional sign
25 in/out sheets over and above the thousands of pages they already have,” asserted that the breadth of
26 sign-in request was tailored to “demonstrating damages at trial, not in support of class certification,”
27 and concluded that “this discovery should be deferred until after the filing of Plaintiffs’ motion for
28 class certification.” (Reply CE 6). Nowhere in ABM’s 2010 opposition did it state it had failed to
8
PLAINTIFFS’ REPLY IN SUPPORT OF MOTION TO AMEND OR MODIFY CLASS CERTIFICATION ORDER
1 maintain the sign-in sheets or had shredded them so production was not possible. After remittitur,
2 Plaintiffs requested a complete production of the timesheets. Plaintiffs were only recently informed
3 that ABM had failed to maintain the required records.2 Even if this Court finds a C.C.P. sec. 1008
4 showing is required here, Plaintiffs have satisfied the “new facts” requirement.
5 As to the wage statement subclass: Labor Code sec. 226 which sets forth the information to
6 be provided in wage statements was amended in 2013 to include subdivision (e)(2)(B), defining
7 injury for purposes of recovery under subdivision (e)(1) as when “the employee cannot promptly and
8 easily determine from the wage statement alone” the inclusive dates of the period for which the
9 employee is paid. Prior to this amendment, when Plaintiffs moved for class certification in 2010, it
10 was not clear that the omission of the initial pay period date on a wage statement caused “injury” for
11 purposes of recovery under sec. 226. This change in the law satisfies the sec. 1008 standard.
12 B. PLAINTIFFS’ COMBINED BREAK CLAIM SHOULD BE CERTIFIED
13 1. ABM Had a Policy of Combining Breaks in the Los Angeles Region
14 ABM spends two pages (Opp. pp. 8-10) citing to new manager declarations to attempt to
15 show that the worksites in the L.A. region did not have a common practice of combining the
16 employees’ two rest breaks with their meal periods. These declarations directly contradict the
17 deposition testimony of James Altieri, ABM’s PMK (CE 3-5), and this Court is under no obligation
18 to consider them. When an organization is a party, all testimony given by its designated Person Most
19 Qualified is admissible and binding against the organization in court. (Cal. Code Civ.
20 Proc. §§ 2025.230 and 2025.620(b).) “[A] PMK’s testimony will be binding upon the organization
21 for all purposes. ... Conflicting information provided later can be barred from use.” (1 Matthew
22 Bender Practice Guide: CA E-Discovery and Evidence 5A.39 (2019); see Maldonado v. Superior
23 Court (2002) 94 Cal.App.4th 1390, 1395–1397; Atlantic Mutual Ins. Co. v. J. Lamb, Inc. (2002) 100
24 Cal.App.4th 1017, 1042 [rejecting party’s arguments that contradicted PMK testimony].)3
25
2
The legal argument that ABM was not required to keep meal records for some of its janitorial employees is a
26 completely new-sprung defense which should be foreclosed based on the prior failure to plead such an
affirmative defense.
27 3
Federal courts in California, when interpreting the effect of the parallel federal rule (Rule 30(b)(6)), have
28 held a PMK’s admissions binding. For example, “Rule 30(b)(6) testimony may be amplified or explained, so
long as a material change or retraction is not made without a reasonable basis.” (Coalition v. McCammon
9
PLAINTIFFS’ REPLY IN SUPPORT OF MOTION TO AMEND OR MODIFY CLASS CERTIFICATION ORDER
1 Mr. Altieri made corrections to his deposition testimony, yet not to his statements regarding
2 the common break practice in the L.A. region. (Reply CE 7.) If Altieri had changed that testimony,
3 Plaintiffs could have explored further. ABM should not be allowed to benefit from its failure to
4 correct whatever inaccuracies by now submitting conflicting evidence. Such a result would be unfair
5 and completely undermine the integrity of the Person Most Qualified deposition process in
6 California. Unless a party is bound by its own PMK’s testimony, that testimony serves no value in
7 the discovery process and permits the party offering the testimony to walk back from its own
8 admissions. This Court should disregard the self-serving contradicting declarations.
9 2. The Legal Question ABM Notes Is a Predominant Common Question
10 ABM cites to Villa v. Tyco Elec. Corp., 2011 U.S. Dist. LEXIS 1697 (D.C. Cal., Jan. 7, 2011
11 (No. C 10-00516 (MHP), to assert that a policy of combining meal and rest breaks is “not per se
12 illegal.” (Opp. p. 18.) As an initial matter, ABM’s argument highlights a legal question which must
13 and can be resolved on a class-wide basis. And, whether the Plaintiffs are ultimately successful on
14 that legal question is not an appropriate question at the class certification stage.
15 Addressing the legal argument, Villa does not address the same issue as here. In Villa, the
16 court granted summary judgment because the plaintiff testified that meal and rest breaks were not
17 combined. As such, there was no triable issue of fact—not because the alleged practice of combining
18 the meals was legal—but because there was no evidence the combining occurred. In this case, there
19 is a PMK admission against interest that such a policy existed.
20 Further, in Rodriguez v. E.M.E., supra, the court specifically noted that Villa should not be
21 relied on because it lacked analysis and because it pre-dated Brinker Restaurant Corp. v. Superior
22 Court (2012) 53 Cal.4th 1004. Rodriguez concludes there are situations in which a meal and a rest
23 period may be properly combined, but a variation from the “preferred scheduled” as defined in the
24 IWC Wage Order is not appropriate simply because it is advantageous to the employer. (Rodriguez,
25 246 Cal.App.4th at pp. 1044-45, 1040-41). Although ABM asserts that Rodriguez stands for the
26
27 (E.D. Cal. 2010) 725 F.Supp.2d 1162, 1173; see also U.S. v. Taylor (M.D.N.C. 1996) 166 F.R.D. 356, 363
[corporation may not “review previous [PMK] deposition testimony and documents previously produced in
28 discovery after the deposition has concluded to then determine its corporate position”].)
10
PLAINTIFFS’ REPLY IN SUPPORT OF MOTION TO AMEND OR MODIFY CLASS CERTIFICATION ORDER
1 proposition that individualized inquiry will be necessary to determine whether combined meal and
2 rest periods are acceptable, ABM misses the point. Brinker instructs that rest and meal breaks are
3 necessary to maintain worker health. Further, Brinker held employers are “subject to a duty to make
4 a good faith effort to authorize and permit rest breaks in the middle of each work period, but may
5 deviate from that preferred course where practical considerations render it infeasible.” (53 Cal.4th at
6 p. 1031.) Brinker dictates that such a deviation must be “tailored to alleviate a material burden that
7 would be imposed on the employer by implementing the preferred schedule.” (Id. at p. 1040.) The
8 showing of an “alleviat[ion of] a material burden”4 must not rely on employee preference but rather
9 puts the affirmative obligation on the employer to authorize and permit rest periods in the middle of
10 each work period (one on each side of a meal period for an 8 hour shift) unless it is “infeasible” and
11 that the infeasibility can be alleviated by the schedule adopted. This is not a matter of preference,
12 advantage, or convenience, but a much higher standard more in the nature of an affirmative defense
13 necessary to show maintaining the Wage-Order-designated schedule is not reasonably possible.
14 3. Plaintiffs’ Claims Are Typical of the Class
15 ABM contends Plaintiffs offered no evidence they were subject to the combined break
16 policy, and therefore, the named Plaintiffs lack typicality. (Opp. pp. 16-18.) This is both a red
17 herring and a false argument. Plaintiffs are not seeking to certify a class of individuals who suffered
18 the combined break. Plaintiffs seek three subclasses through this motion: individuals employed in
19 the L.A region who worked over 5 hours; individuals who received inadequate wage statements,
20 and; individuals for whom ABM failed to keep appropriate documentation.
21 There is no dispute that Plaintiffs fall within these three classes. This has been established by
22 the employer’s own time records (or lack thereof) and wage statements. The named Plaintiffs who
23 worked in the L.A. region worked shifts longer than 5 hours. (Reply CE 8.) Specifically, however,
24 ABM argues that the deposition testimony of the named Plaintiffs shows they were not subject to
25 combined break policy. However, the commonality of the practice is established by ABM’s
26
27 4
James Altieri, ABM’s PMK on the topic, testified that the adoption of the policy was based solely on the
affected employees’ request through their union, thus, Brinker’s standard cannot be met. (Ex. 9 to Matern
28 Dec., Excerpts from the Deposition of Mr. James Altieri, at 51:19-22.)
11
PLAINTIFFS’ REPLY IN SUPPORT OF MOTION TO AMEND OR MODIFY CLASS CERTIFICATION ORDER
1 designated Person Most Qualified, Mr. Altieri who testified that the practice was in place throughout
2 the Los Angeles region. (CE 3, CE 4.) The issue, then, is whether the named Plaintiffs may represent
3 a class for which they themselves may not be eligible for recovery.
4 Although nominally “atypical” (Opp. p. 18), the ability to recover under a particular class or
5 subclass is not a hard and fast prerequisite for class certification. The typicality requirement does not
6 require the named plaintiff to have an identical claim to other class members but rather that the
7 claims of the class members and named plaintiffs are co-extensive or interrelated with the interests
8 of the class members such that those interests will be fairly and adequately protected by the named
9 plaintiff. (See Hanlon v. Chrysler Corp. (9th Cir. 1998) 150 F.3d 1011, 1020; Senne v. Kan. City
10 Royals Baseball Corp. (N.D. Cal. 2016) 315 F.R.D. 523, 567.) Here, named Plaintiffs’ testimony
11 shows that they were deprived mid-work period occasions to rest, which is the injury alleged from
12 the combined break policy. (Opp. p. 17.)
13 Though citing Trotsky v. Los Angeles Fed. Sav. & Loan (1975) 48 Cal.App.3d 134, 146, for
14 the proposition that the named plaintiff must be a member of the class, Trotsky is more nuanced. In
15 Trotsky, the question was whether the named plaintiff, who had filed an amended complaint
16 intentionally omitting a claim made in the original complaint, could bind the class through a class
17 settlement releasing the omitted claim. (48 Cal.App.3d at pp. 139-141.) Thus it is not a class
18 certification case, but a scope of settlement case. The other case cited by ABM fares no better. In
19 First American Title Insurance Co. v. Superior Court (2007) 146 Cal.App.4th 1564, the issue was
20 whether the named plaintiff had the right to seek pre-certification discovery to find a replacement
21 because he never had any claim against the defendant. (146 Cal.App.4th at p. 1574.) The plaintiff
22 was found to be “a stranger” to the action and thus was denied the discovery sought. (146
23 Cal.App.4th at p. 1566.) Here, the named Plaintiffs are not strangers.
24 Further, whether or not a named plaintiff will adequately protect a class, even if they
25 themselves are not eligible to recover for the alleged harm, is a matter within the discretion of the
26 trial court. (Scott v. Indian Wells (1972) 6 Cal.3d 541, 550; La Sala v. Am. Sav. & Loan Ass'n (1971)
27 5 Cal.3d 864, 871.)
28 4. ABM’s Evidence Suggesting Workers Got “Extra” Breaks Is Irrelevant
12
PLAINTIFFS’ REPLY IN SUPPORT OF MOTION TO AMEND OR MODIFY CLASS CERTIFICATION ORDER
1 ABM relies on Payton v. CSI Electrical Contractors, Inc. (2018) 27 Cal.App.5th 832, to
2 argue that the combined break class should be denied because, like Payton, the Court “would need to
3 determine which employees received an additional break.” (Opp. p. 19.) Payton does not apply here.
4 In Payton, the PMK testified that a no combined break policy existed. (Payton, supra, at p. 838.)
5 Here, Mr. Altieri’s PMK testimony establishes a common combined break policy in the L.A. region.
6 ABM’s declarations indicating some employees received additional breaks (as implausible as that
7 sounds), therefore, is a damages issue that does not impede certification. (Faulkinbury v. Boyd &
8 Associates, Inc. (2013) 216 Cal.App.4th 220, 235 [“[T]he employer's liability arises by adopting a
9 uniform policy that violates the wage and hour laws. Whether or not the employee was able to take
10 the required break goes to damages[.]”]
11 C. PLAINTIFFS’ WAGE STATEMENT CLAIM SHOULD BE CERTIFIED
12 1. The Claim Presents Common Questions Susceptible to Common Proof
13 ABM’s PMK testimony established ABM used a common wage statement format across the
14 State of California. (Mot. p. 13.) Whether that common wage statement, which did not include the
15 pay period start date, is violative of Labor Code section 226(a)(6) presents a common question.
16 ABM offers no meaningful rebuttal to Plaintiffs’ showing. Instead, ABM argues that, if
17 certified, the Court would have to look at every individual wage statement to determine if the
18 beginning date of the pay period was provided. ABM’s contention that every wage statement is
19 unique contradicts the evidence in the record. ABM’s PMK stated that she used the common format
20 to print the checks at her location for the entire region. (Reply CE 9.) Through their opposition and
21 objections, ABM tries to cabin their PMK’s testimony to her work in the Southern California region,
22 but ABM produced Ms. Ung to testify as to California-wide practices and she testified about a
23 Northern California check that was consistent with the format she described in her testimony. (Reply
24 CE 10.) There is no evidence that managers were authorized to “mix-it up” by designing their own
25 wage statements. Also, ABM produced an “inter-office” memo issued in the Northern California
26 region “to all employees” indicating that their “detailed pay statement ha[d] been upgraded to
27 provide [them] with more detailed information” and provided an “example of new earnings and
28
13
PLAINTIFFS’ REPLY IN SUPPORT OF MOTION TO AMEND OR MODIFY CLASS CERTIFICATION ORDER
1 deductions section formats.” (Reply CE 11.) The format of the wage statement is identical to the
2 exemplar Ms. Ung testified about in that it is missing an initial pay period date.
3 ABM also offers four documents it claims are non-violative wage statements to argue that an
4 examination of every wage statement would be necessary. But this directly contradicts ABM’s own
5 PMK’s testimony about the common wage statement form – a form which violates Section 226(a)(6)
6 – used throughout California. (Reply CE 12.) And it is questionable whether these four documents
7 are in fact wage statements provided to employees. Those documents were not properly
8 authenticated; a senior paralegal at ABM’s counsel’s office found them during a cursory review of
9 boxes containing ABM documents. (See Def. Exh. U). Whereas the wage statement exemplar
10 Plaintiffs provided was properly authenticated and testified to by ABM’s designated PMK regarding
11 payroll practices. (Reply CE 13.) Despite providing this Court with eighteen declarations from ABM
12 employees, ABM does not provide a single declaration from human resources stating that the four
13 forms were ever given to employees. This omission speaks volumes. (See Dailey v. Sears, Roebuck
14 & Co. (2013) 214 Cal.App.4th 974, 991 [“If the parties’ evidence is conflicting on the issue of
15 whether common or individual questions predominate . . ., the trial court is permitted to credit one
16 party’s evidence over the other’s in determining whether the requirements for class certification have
17 been met.”].)
18 Even if the four forms ABM now offers were provided to some employees, a few valid wage
19 statements, set against ABM’s common policy of furnishing unlawful ones, would make the issue a
20 question of damages alone. As post-Brinker cases show, a class must be certified as long as the
21 plaintiff’s theory of recovery is based on a uniform unlawful policy or practice (or lack thereof) –
22 even if some employees were occasionally (or even regularly) treated
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1 STAN S. MALLISON, Bar No. 184191 HECTOR R. MARTINEZ, Bar No. 206336 2 MALLISON & MARTINEZ ELECTRONICALLY 1939 Harrison Street, Suite 730 F I L E D 3 Superior Court of California, Oakland, California 94612 County of San Francisco 4 Telephone: (510) 832-9999 11/13/2019 Email: stanm@themmlawfirm.com Clerk of the Court 5 hectorm@themmlawfirm.com BY: JUDITH NUNEZ Deputy Clerk 6 EMILY P. RICH, Bar No. 168735 ROBERTA D. PERKINS, Bar No. 153074 7 CAITLIN GRAY, Bar No. 305118 WEINBERG, ROGER & ROSENFELD 8 1001 Marina Village Parkway, Suite 200 9 Alameda, California 94501 Telephone: (510) 337-1001 10 Email: erich@unioncounsel.net rperkins@unioncounsel.net 11 MATTHEW J. MATERN, Bar No. 159798 12 KIRAN PRASAD, Bar No. 255348 RASTEGAR & MATERN, PC 13 1230 Rosecrans Avenue, Suite 200 14 Manhattan Beach, California 90266 Telephone: (310) 531-1900 15 Email: mmatern@maternlawgroup.com kiranprasad1000@gmail.com 16 Class Counsel and Attorneys Plaintiffs 17 SUPERIOR COURT OF THE STATE OF CALIFORNIA 18 IN AND FOR THE COUNTY OF SAN FRANCISCO 19 JCCP NO. 4502 20 COORDINATION PROCEEDING CLASS ACTION 21 SPECIAL TITLE [Rule 1550 (b)] 22 PLAINTIFFS' REPLY IN SUPPORT OF MOTION TO AMEND OR MODIFY ABM INDUSTRIES OVERTIME CASES CLASS CERTIFICATION ORDER 23 This Document Relates To: All Actions. 24 Date: November 18, 2019 Time: 1:30 p.m. 25 Dept.: 613 Judge: Hon. Teri Jackson 26 Complaint Filed: April 7, 2006 27 28 PLAINTIFFS’ REPLY IN SUPPORT OF MOTION TO AMEND OR MODIFY CLASS CERTIFICATION ORDER 1 TABLE OF CONTENT 2 3 4 I. INTRODUCTION ............................................................................................................ 5 5 II. ARGUMENT.................................................................................................................... 5 6 A. THIS MOTION IS PROCEDURALLY PROPER ...................................................... 5 7 1. Plaintiffs Seek Amendments to an Existing Class Certification Order Which Is Permitted by California Rules of Court and Case Law ................................ 5 8 2. The 2011 Order Denying Certification Did Not Survive Appellate Scrutiny 9 and Even If It Did, It Was Expressly Without Prejudice ................................. 6 10 3. Even if the Court Finds Some Part of the 2011 Order Survived, this Motion Advances New Subclasses Not Addressed by the Prior Order......................... 6 11 4. Plaintiffs Need Not Meet the C.C.P. § 1008 Standard, but Certainly Can ........ 7 12 B. PLAINTIFFS’ COMBINED BREAK CLAIM SHOULD BE CERTIFIED................ 9 13 1. ABM Had a Policy of Combining Breaks in the Los Angeles Region ............. 9 14 2. The Legal Question ABM Notes Is a Predominant Common Question .......... 10 15 3. Plaintiffs’ Claims Are Typical of the Class ................................................... 11 16 4. ABM’s Evidence Suggesting Workers Got “Extra” Breaks Is Irrelevant ....... 12 17 C. PLAINTIFFS’ WAGE STATEMENT CLAIM SHOULD BE CERTIFIED ............. 13 18 1. The Claim Presents Common Questions Susceptible to Common Proof ........ 13 19 2. ABM Will Lose on the Merits of the Wage Statement Claim ........................ 15 20 3. Named Plaintiffs’ Claims Are Typical .......................................................... 16 21 D. THE FAILURE TO PRESERVE RECORDS CLAIM SHOULD BE CERTIFIED .. 16 22 1. ABM’s Newly-Minted Defense that Some Crews “Ceased Operations” 23 Presents a Common Legal Question ............................................................. 16 24 2. ABM Did Not Maintain Employees’ Time Records ...................................... 18 25 E. NO TRIAL PLAN WAS REQUIRED FOR THIS MOTION ................................... 19 26 III. CONCLUSION............................................................................................................... 20 27 28 1 PLAINTIFFS’ REPLY IN SUPPORT OF MOTION TO AMEND OR MODIFY CLASS CERTIFICATION ORDER 1 TABLE OF AUTHORITIES 2 Page(s) 3 Federal Cases Coalition v. McCammon, 4 (E.D. Cal. 2010) 725 F.Supp. 2d 1162 ........................................................................................9 5 Hanlon v. Chrysler Corp., 6 (9th Cir. 1998) 150 F. 3d 1011 .................................................................................................. 12 7 Lyon v. U.S. Immigration & Customs Enforcement, (N.D. Cal. 2015) 308 F.R.D. 203 ................................................................................................6 8 Magadia v. Wal-Mart Associates, Inc., 9 (N.D. Cal. 2018) 319 F.Supp. 3d 1180 ...................................................................................... 16 10 McKenzie v. Federal Exp. Corp., 11 (C.D. Cal. 2011) 765 F.Supp. 2d 1222 ...................................................................................... 16 12 Ovieda v. Sodexo Operations, LLC, (C.D. Cal. 2013) 12 GHK 1750………………………………………………………………….15 13 Reinhardt v. Gemini Motor Transport, 14 (E.D.Cal. 2012) 879 F.Supp. 2d 1138 ....................................................................................... 15 15 Senne v. Kan. City Royals Baseball Corp., (N.D. Cal. 2016) 315 F.R.D. 523………………………………………………………………..12 16 U.S. v. Taylor, 17 (M.D.N.C. 1996) 166 F.R.D. 356.............................................................................................. 10 18 State Cases 19 ABM Industries Overtime Cases, (2017) 19 Cal.App.5th 277........................................................................................................ 17 20 21 Armstrong v. Davis, (9th Cir. 2001) 275 F.3d 849 .......................................................................................................6 22 Atlantic Mutual Ins. Co. v. J. Lamb, Inc., 23 (2002) 100 Cal.App.4th 1017......................................................................................................9 24 Bradley v. Networkers Internat., LLC, 25 (2012) 211 Cal.App.4th 1129.............................................................................................. 15, 17 26 Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 10041. .............................................................................................................. 10 27 28 Bufil v. Dollar Financial Group, Inc., (2008) 162 Cal.App.4th 1193.................................................................................................... 15 2 PLAINTIFFS’ REPLY IN SUPPORT OF MOTION TO AMEND OR MODIFY CLASS CERTIFICATION ORDER 1 Dailey v. Sears, Roebuck & Co., 2 (2013) 214 Cal.App.4th 974...................................................................................................... 14 3 Duran v. U.S. Nat’l Bank, (2018) 19 Cal.App.5th 630........................................................................................................ 19 4 Faulkinbury v. Boyd & Associates, Inc., 5 (2013) 216 Cal.App.4th 220................................................................................................ 13, 14 6 First American Title Insurance Co. v. Superior Court, 7 (2007) 146 Cal.App.4th 1564.................................................................................................... 12 8 Ghazaryan v. Diva Limousine, Ltd., 9 (2008) 169 Cal.App.4th 1524.................................................................................................... 14 10 Glade v. Glade, (1995) 38 Cal.App.4th 1441........................................................................................................8 11 Industrial Welfare Com. v. Superior Court, 12 (1980) 27 Cal.3d 690 ................................................................................................................ 18 13 La Sala v. Am. Sav. & Loan Ass'n, 14 (1971) 5 Cal.3d 864 .................................................................................................................. 12 15 Maldonado v. Epsilon Plastics, Inc., (2018) 22 Cal.App.5th 1308........................................................................................................7 16 17 Maldonado v. Superior Court, (2002) 94 Cal.App.4th 1390........................................................................................................9 18 Occidental Land, Inc. v. Superior Court, 19 (1976) 18 Cal.3d 355 ..................................................................................................................5 20 Payton v. CSI Electrical Contractors, Inc., 21 (2018) 27 Cal.App.5th 832........................................................................................................ 13 22 Raines v. Coastal Pacific Food Distributors, Inc., (2018) 23 Cal.App.5th 667........................................................................................................ 15 23 Rodriguez v. E.M.E., Inc., 24 (2016) 246 Cal.App.4th 1027......................................................................................................7 25 Scott v. Indian Wells, 26 (1972) 6 Cal.3d 541 .................................................................................................................. 12 27 Trotsky v. Los Angeles Fed. Sav. & Loan, (1975) 48 Cal.App.3d 134.................................................................................................... ….12 28 3 PLAINTIFFS’ REPLY IN SUPPORT OF MOTION TO AMEND OR MODIFY CLASS CERTIFICATION ORDER Vasquez v. Superior Court, 1 (1971) 4 Cal.3d 800 ....................................................................................................................5 2 Williams v. Russ, 3 (2008) 167 Cal.App.4th 1215.................................................................................................... 10 4 State Statutes Cal. Code of Civil Procedure § 2025.230…………………………………………………………....9 5 Cal. Code of Civil Procedure § 2025.620(b)………………………………………………………...9 6 7 Cal. Labor Code § 226………………………………………………………………………15, 17, 19 8 Cal. Labor Code § 226 (a)…………………………………………………………………………..15 9 Cal. Labor Code § 226 (e)…………………………………………………………………………..15 10 Cal. Labor Code § 226 (a) (6)……………………………………………………………7, 13, 14, 16 11 Cal. Labor Code § 226 (a) (8)……………………………………………………………………….7 12 Cal. Labor Code § 226 (e) (6)……………………………………………………………………….14 13 Cal. Labor Code § 226.7…………………………………………………………………………….7 14 Cal. Labor Code § 1174………………………………………………………………………….... 16 15 Cal. Labor Code § 1174.5………………………………………………………………………..... 17 16 Federal Rules Federal Rule of Civil Procedure, Rule 23(c)(1)(C) .........................................................................5 17 18 Other Authorities ABM cites to Villa v. Tyco Elec. Corp., 19 2011 U.S. Dist. 1697................................................................................................................. 10 20 3 Newberg on Class Actions § 7:32 (5th ed.)……………………………………………………….6 21 IWC Wage Order 5-2001 § 7 ……………………………………………………………7, 11,17, 19 22 23 24 25 26 27 28 4 PLAINTIFFS’ REPLY IN SUPPORT OF MOTION TO AMEND OR MODIFY CLASS CERTIFICATION ORDER 1 I. INTRODUCTION 2 Plaintiffs have provided sufficient relevant evidence to certify additional subclasses of 3 employees who have performed work for ABM. Although Defendants (“ABM”) raise many issues, 4 none preclude or negate the appropriateness of class certification. 5 II. ARGUMENT 6 A. THIS MOTION IS PROCEDURALLY PROPER 1. Plaintiffs Seek Amendments to an Existing Class Certification Order Which Is 7 Permitted by California Rules of Court and Case Law 8 This motion seeks amendments to an existing certification order. The California Rules of 9 Court expressly permit such amendments. ABM refuses to accept that Plaintiffs are a certified class. 10 Because of this, ABM does not address the CRCs which permit amendments to such orders, nor does 11 it address Plaintiffs’ binding authority, Occidental Land, Inc. v. Superior Court (1976) 18 Cal.3d 12 355, which holds that when plaintiffs are successful in their certification bid, successive motions 13 regarding certification are permitted. 14 Instead, ABM relies on irrelevant cases dealing with challenges to the denial of certification 15 through C.C.P. § 1008, such as Stephen and Safaie. (Opp. pp. 12-13.) Those cases concern only 16 whether plaintiffs can “try again” after an order denying class certification; they have nothing to 17 teach us about amendments to an existing certification order. Also, Payton, which features 18 prominently in ABM’s opposition for the principle that a plaintiff “ordinarily gets one shot at a class 19 certification motion,” has no application here, because, again, there is a certified class. In Payton, the 20 Court of Appeal denied plaintiff’s motion for certification and leave to find another plaintiff because 21 doing so would not correct the certification motion’s flaws. 22 The California Rules of Court do not dictate a standard for amending a certification order. 23 However, courts are authorized “to utilize the procedures in rule 23 of the Federal Rules of Civil 24 Procedure, and observed that a certification order issued under rule 23 ‘may be conditional and may 25 be altered or amended before a decision on the merits.’” (Occidental Land, Inc. v. Superior 26 Court (1976) 18 Cal.3d 355, 360, citing Vasquez v. Superior Court (1971) 4 Cal.3d 800, 821.) 27 The federal rules provide that once class certification is granted that such order “may be … 28 amended before final judgment.” Fed.R.Civ.P. 23(c)(1)(C). Cases interpreting the federal rules leave 5 PLAINTIFFS’ REPLY IN SUPPORT OF MOTION TO AMEND OR MODIFY CLASS CERTIFICATION ORDER 1 this modification to the discretion of the court. (Lyon v. U.S. Immigration & Customs 2 Enforcement (N.D. Cal. 2015) 308 F.R.D. 203, 210; see Armstrong v. Davis (9th Cir. 2001) 275 F.3d 3 849, 871 n. 28 [district courts may revisit certification throughout legal proceedings].) California 4 authority therefore does not require Plaintiffs to meet the C.C.P. § 1008 factors to amend or modify 5 an order to expand the scope of the litigation. (Lyon, supra, 308 F.R.D. at p. 210–211.) 6 Plaintiffs seeking to add classes to an existing order, therefore, need show only that the class 7 certification requirements are met. Having done so, there is no procedural impediment to 8 certification of the three proposed subclasses here. 2. The 2011 Order Denying Certification Did Not Survive Appellate Scrutiny and 9 Even If It Did, It Was Expressly Without Prejudice 10 ABM argues as if Judge Kramer’s denial order survived appellate review. It did not. ABM 11 offers no explanation as to how it did survive, given that every principle in the order was deemed 12 erroneous by the Court of Appeal. (Mot. 17-18.) Plaintiffs’ cases holding that a reversal extends to 13 the entire judgment where the defects causing reversal affect the un-appealed portions, are 14 dispositive on this issue. 15 Next, ABM argues that Judge Kramer intended the order to be with prejudice because he had 16 crossed out “without” at the end of the order. (This is irrelevant, because the order was reversed 17 entirely.) However, the opening paragraph of the order states “without prejudice.” Plaintiffs had 18 submitted their own version of the proposed order denying class certification to the Court and listed 19 a number of edits to the one supplied by ABM. (Plaintiffs’ Compendium of Evidence iso Reply 20 “Reply CE” 1). The trial court elected to sign Plaintiffs’ version which included the “without 21 prejudice” language. ABM had the opportunity to clarify any perceived ambiguity in the order and 22 has waived any argument on this point. If any part of the 2011 order denying class certification 23 survived, however, and the Court finds that the order encompasses the subclasses advanced herein, 24 Plaintiffs still are free to bring this Motion anew because it was made “without prejudice.” 25 3. Even if the Court Finds Some Part of the 2011 Order Survived, this Motion Advances New Subclasses Not Addressed by the Prior Order 26 The subclass is “created solely to expedite resolution of the case by segregating [a distinct 27 legal] issue [that is] common to some members of the existing [class].” (3 Newberg on Class Actions 28 6 PLAINTIFFS’ REPLY IN SUPPORT OF MOTION TO AMEND OR MODIFY CLASS CERTIFICATION ORDER 1 § 7:32 (5th ed.).) The proposed additional subclasses differ from prior subclasses in both fact and 2 law. Any surviving vestige of the 2011 Order, therefore does not affect the instant motion. 3 The current “combined break subclass” differs from earlier “rest break premium subclass” in 4 both law and fact. Plaintiffs allege that ABM’s policy of combining breaks violates the provision of 5 Wage Order 5-2001 requiring rest breaks to be provided on either side of the meal break and in the 6 middle of each work period. (Labor Code sec. 226.7; Wage Order 5-2001; Rodriguez v. E.M.E., Inc. 7 (2016) 246 Cal.App.4th 1027.) By contrast, the earlier “rest break premium subclass” alleged that 8 ABM did not provide premium pay when employees missed their rest breaks. (Reply CE 2). 9 Factually, the “rest break premium subclass” concerned whether ABM paid premiums for missed 10 rest breaks, whereas the current combined break subclass concerns whether ABM provided a mid- 11 work period opportunity to rest. Because the two subclasses are distinct with respect to fact and law, 12 Judge Kramer’s denial of the “rest break premium subclass” could have no effect on certification of 13 the “combined break subclass” (even if that denial had not been reversed). 14 The wage statement subclass advanced here also differs from the prior paystub subclass in 15 law and fact. Section 226(a)(6) requires employers to provide the inclusive dates of the pay period 16 on the wage statement (“pay period subclass”) whereas Section 226(a)(8) requires employers to 17 supply their address on wage statements (“address subclass”). These classes advance two distinct 18 legal claims. (See, e.g., Maldonado v. Epsilon Plastics, Inc. (2018) 22 Cal.App.5th 1308, 1335.) The 19 two subclasses also differ factually. The current “pay period subclass” depends on whether the wage 20 statement shows the starting date for the pay period, whereas the earlier “address subclass” depended 21 on whether ABM provided a physical address on its wage statements.1 (Reply CE 3). 22 4. Plaintiffs Need Not Meet the C.C.P. § 1008 Standard, but Certainly Can 23 There is no case holding that Plaintiffs must meet the C.C.P. § 1008 standard in order to 24 amend a class certification order. Plaintiffs addressed this issue in the Motion only in the event the 25 Court finds that reconsideration of the 2011 order is warranted (rather than amending the 2018 26 certification order). If, however, Plaintiffs must meet the C.C.P. § 1008 factors, they can. 27 1 28 ABM’s opposition does not allege that Plaintiffs previously sought certification of a record-keeping subclass, so that subclass need not be addressed here. 7 PLAINTIFFS’ REPLY IN SUPPORT OF MOTION TO AMEND OR MODIFY CLASS CERTIFICATION ORDER 1 The standard for “new facts” justifying reconsideration simply requires a satisfactory 2 explanation as to why those facts were not presented earlier. (Glade v. Glade (1995) 38 Cal.App.4th 3 1441, 1457.) Plaintiffs have provided a satisfactory explanation. A change in the law that prevents 4 reliance on former decisions is a change in law that warrants reconsideration because it changes the 5 legal context surrounding the decision. (See Phillips v. Sprint PCS (2012) 209 Cal.App.4th 758, 6 768-769.) Even without a change of law, a trial court may exercise its inherent jurisdiction to 7 reconsider an interim ruling. (Le Francois v. Goel (2005) 35 Cal.4th 1094, 1107.) 8 As to the combined rest break subclass: Plaintiffs took the PMK deposition re: ABM rest 9 and meal break policies in 2007. Mr. Algaheim unequivocally stated that there is no policy other 10 than the one contained in employee handbook. (CE 2.) ABM claims that the Plaintiffs should have 11 learned of an unwritten combined break policy because there were two declarations attesting to a 12 one-hour break. (Opp. p. 15.) Even if those declarations were sufficient to tip Plaintiffs off as to the 13 region-wide policy, that line of investigation was foreclosed by the PMK testimony that there was no 14 rest break policy other than the employee handbook. 15 As to the failure to preserve records subclass: ABM states that Plaintiffs knew that ABM’s 16 record-keeping as to the sign-in sheets was abysmal back in 2010 when they moved to compel their 17 production for the entire class. (Ibid). This is simply not supported by the record. On December 15, 18 2010, Plaintiffs propounded Request for Production (Set 2) in an effort to procure the "sign-in/sign- 19 out" sheets for the entire class period collected from all California job locations. (Reply CE 4.) 20 Plaintiffs agree to a sample but moved to compel production of the sign-in sheets because the sample 21 ABM had selected and produced was inadequate for Plaintiffs’ expert’s analysis. (Reply CE 5). The 22 motion to compel did not allege that ABM had not maintained the sign-in sheets. Rather, Plaintiffs 23 argued that the sign-in sheets were so important that a fuller production was warranted. 24 ABM’s opposition to the motion to compel admitted that Plaintiffs sought “additional sign 25 in/out sheets over and above the thousands of pages they already have,” asserted that the breadth of 26 sign-in request was tailored to “demonstrating damages at trial, not in support of class certification,” 27 and concluded that “this discovery should be deferred until after the filing of Plaintiffs’ motion for 28 class certification.” (Reply CE 6). Nowhere in ABM’s 2010 opposition did it state it had failed to 8 PLAINTIFFS’ REPLY IN SUPPORT OF MOTION TO AMEND OR MODIFY CLASS CERTIFICATION ORDER 1 maintain the sign-in sheets or had shredded them so production was not possible. After remittitur, 2 Plaintiffs requested a complete production of the timesheets. Plaintiffs were only recently informed 3 that ABM had failed to maintain the required records.2 Even if this Court finds a C.C.P. sec. 1008 4 showing is required here, Plaintiffs have satisfied the “new facts” requirement. 5 As to the wage statement subclass: Labor Code sec. 226 which sets forth the information to 6 be provided in wage statements was amended in 2013 to include subdivision (e)(2)(B), defining 7 injury for purposes of recovery under subdivision (e)(1) as when “the employee cannot promptly and 8 easily determine from the wage statement alone” the inclusive dates of the period for which the 9 employee is paid. Prior to this amendment, when Plaintiffs moved for class certification in 2010, it 10 was not clear that the omission of the initial pay period date on a wage statement caused “injury” for 11 purposes of recovery under sec. 226. This change in the law satisfies the sec. 1008 standard. 12 B. PLAINTIFFS’ COMBINED BREAK CLAIM SHOULD BE CERTIFIED 13 1. ABM Had a Policy of Combining Breaks in the Los Angeles Region 14 ABM spends two pages (Opp. pp. 8-10) citing to new manager declarations to attempt to 15 show that the worksites in the L.A. region did not have a common practice of combining the 16 employees’ two rest breaks with their meal periods. These declarations directly contradict the 17 deposition testimony of James Altieri, ABM’s PMK (CE 3-5), and this Court is under no obligation 18 to consider them. When an organization is a party, all testimony given by its designated Person Most 19 Qualified is admissible and binding against the organization in court. (Cal. Code Civ. 20 Proc. §§ 2025.230 and 2025.620(b).) “[A] PMK’s testimony will be binding upon the organization 21 for all purposes. ... Conflicting information provided later can be barred from use.” (1 Matthew 22 Bender Practice Guide: CA E-Discovery and Evidence 5A.39 (2019); see Maldonado v. Superior 23 Court (2002) 94 Cal.App.4th 1390, 1395–1397; Atlantic Mutual Ins. Co. v. J. Lamb, Inc. (2002) 100 24 Cal.App.4th 1017, 1042 [rejecting party’s arguments that contradicted PMK testimony].)3 25 2 The legal argument that ABM was not required to keep meal records for some of its janitorial employees is a 26 completely new-sprung defense which should be foreclosed based on the prior failure to plead such an affirmative defense. 27 3 Federal courts in California, when interpreting the effect of the parallel federal rule (Rule 30(b)(6)), have 28 held a PMK’s admissions binding. For example, “Rule 30(b)(6) testimony may be amplified or explained, so long as a material change or retraction is not made without a reasonable basis.” (Coalition v. McCammon 9 PLAINTIFFS’ REPLY IN SUPPORT OF MOTION TO AMEND OR MODIFY CLASS CERTIFICATION ORDER 1 Mr. Altieri made corrections to his deposition testimony, yet not to his statements regarding 2 the common break practice in the L.A. region. (Reply CE 7.) If Altieri had changed that testimony, 3 Plaintiffs could have explored further. ABM should not be allowed to benefit from its failure to 4 correct whatever inaccuracies by now submitting conflicting evidence. Such a result would be unfair 5 and completely undermine the integrity of the Person Most Qualified deposition process in 6 California. Unless a party is bound by its own PMK’s testimony, that testimony serves no value in 7 the discovery process and permits the party offering the testimony to walk back from its own 8 admissions. This Court should disregard the self-serving contradicting declarations. 9 2. The Legal Question ABM Notes Is a Predominant Common Question 10 ABM cites to Villa v. Tyco Elec. Corp., 2011 U.S. Dist. LEXIS 1697 (D.C. Cal., Jan. 7, 2011 11 (No. C 10-00516 (MHP), to assert that a policy of combining meal and rest breaks is “not per se 12 illegal.” (Opp. p. 18.) As an initial matter, ABM’s argument highlights a legal question which must 13 and can be resolved on a class-wide basis. And, whether the Plaintiffs are ultimately successful on 14 that legal question is not an appropriate question at the class certification stage. 15 Addressing the legal argument, Villa does not address the same issue as here. In Villa, the 16 court granted summary judgment because the plaintiff testified that meal and rest breaks were not 17 combined. As such, there was no triable issue of fact—not because the alleged practice of combining 18 the meals was legal—but because there was no evidence the combining occurred. In this case, there 19 is a PMK admission against interest that such a policy existed. 20 Further, in Rodriguez v. E.M.E., supra, the court specifically noted that Villa should not be 21 relied on because it lacked analysis and because it pre-dated Brinker Restaurant Corp. v. Superior 22 Court (2012) 53 Cal.4th 1004. Rodriguez concludes there are situations in which a meal and a rest 23 period may be properly combined, but a variation from the “preferred scheduled” as defined in the 24 IWC Wage Order is not appropriate simply because it is advantageous to the employer. (Rodriguez, 25 246 Cal.App.4th at pp. 1044-45, 1040-41). Although ABM asserts that Rodriguez stands for the 26 27 (E.D. Cal. 2010) 725 F.Supp.2d 1162, 1173; see also U.S. v. Taylor (M.D.N.C. 1996) 166 F.R.D. 356, 363 [corporation may not “review previous [PMK] deposition testimony and documents previously produced in 28 discovery after the deposition has concluded to then determine its corporate position”].) 10 PLAINTIFFS’ REPLY IN SUPPORT OF MOTION TO AMEND OR MODIFY CLASS CERTIFICATION ORDER 1 proposition that individualized inquiry will be necessary to determine whether combined meal and 2 rest periods are acceptable, ABM misses the point. Brinker instructs that rest and meal breaks are 3 necessary to maintain worker health. Further, Brinker held employers are “subject to a duty to make 4 a good faith effort to authorize and permit rest breaks in the middle of each work period, but may 5 deviate from that preferred course where practical considerations render it infeasible.” (53 Cal.4th at 6 p. 1031.) Brinker dictates that such a deviation must be “tailored to alleviate a material burden that 7 would be imposed on the employer by implementing the preferred schedule.” (Id. at p. 1040.) The 8 showing of an “alleviat[ion of] a material burden”4 must not rely on employee preference but rather 9 puts the affirmative obligation on the employer to authorize and permit rest periods in the middle of 10 each work period (one on each side of a meal period for an 8 hour shift) unless it is “infeasible” and 11 that the infeasibility can be alleviated by the schedule adopted. This is not a matter of preference, 12 advantage, or convenience, but a much higher standard more in the nature of an affirmative defense 13 necessary to show maintaining the Wage-Order-designated schedule is not reasonably possible. 14 3. Plaintiffs’ Claims Are Typical of the Class 15 ABM contends Plaintiffs offered no evidence they were subject to the combined break 16 policy, and therefore, the named Plaintiffs lack typicality. (Opp. pp. 16-18.) This is both a red 17 herring and a false argument. Plaintiffs are not seeking to certify a class of individuals who suffered 18 the combined break. Plaintiffs seek three subclasses through this motion: individuals employed in 19 the L.A region who worked over 5 hours; individuals who received inadequate wage statements, 20 and; individuals for whom ABM failed to keep appropriate documentation. 21 There is no dispute that Plaintiffs fall within these three classes. This has been established by 22 the employer’s own time records (or lack thereof) and wage statements. The named Plaintiffs who 23 worked in the L.A. region worked shifts longer than 5 hours. (Reply CE 8.) Specifically, however, 24 ABM argues that the deposition testimony of the named Plaintiffs shows they were not subject to 25 combined break policy. However, the commonality of the practice is established by ABM’s 26 27 4 James Altieri, ABM’s PMK on the topic, testified that the adoption of the policy was based solely on the affected employees’ request through their union, thus, Brinker’s standard cannot be met. (Ex. 9 to Matern 28 Dec., Excerpts from the Deposition of Mr. James Altieri, at 51:19-22.) 11 PLAINTIFFS’ REPLY IN SUPPORT OF MOTION TO AMEND OR MODIFY CLASS CERTIFICATION ORDER 1 designated Person Most Qualified, Mr. Altieri who testified that the practice was in place throughout 2 the Los Angeles region. (CE 3, CE 4.) The issue, then, is whether the named Plaintiffs may represent 3 a class for which they themselves may not be eligible for recovery. 4 Although nominally “atypical” (Opp. p. 18), the ability to recover under a particular class or 5 subclass is not a hard and fast prerequisite for class certification. The typicality requirement does not 6 require the named plaintiff to have an identical claim to other class members but rather that the 7 claims of the class members and named plaintiffs are co-extensive or interrelated with the interests 8 of the class members such that those interests will be fairly and adequately protected by the named 9 plaintiff. (See Hanlon v. Chrysler Corp. (9th Cir. 1998) 150 F.3d 1011, 1020; Senne v. Kan. City 10 Royals Baseball Corp. (N.D. Cal. 2016) 315 F.R.D. 523, 567.) Here, named Plaintiffs’ testimony 11 shows that they were deprived mid-work period occasions to rest, which is the injury alleged from 12 the combined break policy. (Opp. p. 17.) 13 Though citing Trotsky v. Los Angeles Fed. Sav. & Loan (1975) 48 Cal.App.3d 134, 146, for 14 the proposition that the named plaintiff must be a member of the class, Trotsky is more nuanced. In 15 Trotsky, the question was whether the named plaintiff, who had filed an amended complaint 16 intentionally omitting a claim made in the original complaint, could bind the class through a class 17 settlement releasing the omitted claim. (48 Cal.App.3d at pp. 139-141.) Thus it is not a class 18 certification case, but a scope of settlement case. The other case cited by ABM fares no better. In 19 First American Title Insurance Co. v. Superior Court (2007) 146 Cal.App.4th 1564, the issue was 20 whether the named plaintiff had the right to seek pre-certification discovery to find a replacement 21 because he never had any claim against the defendant. (146 Cal.App.4th at p. 1574.) The plaintiff 22 was found to be “a stranger” to the action and thus was denied the discovery sought. (146 23 Cal.App.4th at p. 1566.) Here, the named Plaintiffs are not strangers. 24 Further, whether or not a named plaintiff will adequately protect a class, even if they 25 themselves are not eligible to recover for the alleged harm, is a matter within the discretion of the 26 trial court. (Scott v. Indian Wells (1972) 6 Cal.3d 541, 550; La Sala v. Am. Sav. & Loan Ass'n (1971) 27 5 Cal.3d 864, 871.) 28 4. ABM’s Evidence Suggesting Workers Got “Extra” Breaks Is Irrelevant 12 PLAINTIFFS’ REPLY IN SUPPORT OF MOTION TO AMEND OR MODIFY CLASS CERTIFICATION ORDER 1 ABM relies on Payton v. CSI Electrical Contractors, Inc. (2018) 27 Cal.App.5th 832, to 2 argue that the combined break class should be denied because, like Payton, the Court “would need to 3 determine which employees received an additional break.” (Opp. p. 19.) Payton does not apply here. 4 In Payton, the PMK testified that a no combined break policy existed. (Payton, supra, at p. 838.) 5 Here, Mr. Altieri’s PMK testimony establishes a common combined break policy in the L.A. region. 6 ABM’s declarations indicating some employees received additional breaks (as implausible as that 7 sounds), therefore, is a damages issue that does not impede certification. (Faulkinbury v. Boyd & 8 Associates, Inc. (2013) 216 Cal.App.4th 220, 235 [“[T]he employer's liability arises by adopting a 9 uniform policy that violates the wage and hour laws. Whether or not the employee was able to take 10 the required break goes to damages[.]”] 11 C. PLAINTIFFS’ WAGE STATEMENT CLAIM SHOULD BE CERTIFIED 12 1. The Claim Presents Common Questions Susceptible to Common Proof 13 ABM’s PMK testimony established ABM used a common wage statement format across the 14 State of California. (Mot. p. 13.) Whether that common wage statement, which did not include the 15 pay period start date, is violative of Labor Code section 226(a)(6) presents a common question. 16 ABM offers no meaningful rebuttal to Plaintiffs’ showing. Instead, ABM argues that, if 17 certified, the Court would have to look at every individual wage statement to determine if the 18 beginning date of the pay period was provided. ABM’s contention that every wage statement is 19 unique contradicts the evidence in the record. ABM’s PMK stated that she used the common format 20 to print the checks at her location for the entire region. (Reply CE 9.) Through their opposition and 21 objections, ABM tries to cabin their PMK’s testimony to her work in the Southern California region, 22 but ABM produced Ms. Ung to testify as to California-wide practices and she testified about a 23 Northern California check that was consistent with the format she described in her testimony. (Reply 24 CE 10.) There is no evidence that managers were authorized to “mix-it up” by designing their own 25 wage statements. Also, ABM produced an “inter-office” memo issued in the Northern California 26 region “to all employees” indicating that their “detailed pay statement ha[d] been upgraded to 27 provide [them] with more detailed information” and provided an “example of new earnings and 28 13 PLAINTIFFS’ REPLY IN SUPPORT OF MOTION TO AMEND OR MODIFY CLASS CERTIFICATION ORDER 1 deductions section formats.” (Reply CE 11.) The format of the wage statement is identical to the 2 exemplar Ms. Ung testified about in that it is missing an initial pay period date. 3 ABM also offers four documents it claims are non-violative wage statements to argue that an 4 examination of every wage statement would be necessary. But this directly contradicts ABM’s own 5 PMK’s testimony about the common wage statement form – a form which violates Section 226(a)(6) 6 – used throughout California. (Reply CE 12.) And it is questionable whether these four documents 7 are in fact wage statements provided to employees. Those documents were not properly 8 authenticated; a senior paralegal at ABM’s counsel’s office found them during a cursory review of 9 boxes containing ABM documents. (See Def. Exh. U). Whereas the wage statement exemplar 10 Plaintiffs provided was properly authenticated and testified to by ABM’s designated PMK regarding 11 payroll practices. (Reply CE 13.) Despite providing this Court with eighteen declarations from ABM 12 employees, ABM does not provide a single declaration from human resources stating that the four 13 forms were ever given to employees. This omission speaks volumes. (See Dailey v. Sears, Roebuck 14 & Co. (2013) 214 Cal.App.4th 974, 991 [“If the parties’ evidence is conflicting on the issue of 15 whether common or individual questions predominate . . ., the trial court is permitted to credit one 16 party’s evidence over the other’s in determining whether the requirements for class certification have 17 been met.”].) 18 Even if the four forms ABM now offers were provided to some employees, a few valid wage 19 statements, set against ABM’s common policy of furnishing unlawful ones, would make the issue a 20 question of damages alone. As post-Brinker cases show, a class must be certified as long as the 21 plaintiff’s theory of recovery is based on a uniform unlawful policy or practice (or lack thereof) – 22 even if some employees were occasionally (or even regularly) treated