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MOA
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
Document Scanning Lead Sheet
Sep-27-2012 3:11 pm
Case Number: CGC-10-504804
Filing Date: Sep-27-2012 3:09
Filed by: WESLEY G. RAMIREZ
Juke Box: 001 Image: 03782781
MOTION (CIVIL GENERIC)
SALVATORE MINEO INDIVIDUALLY, AND ON BEHALF OF ALL et al VS. CITY
SIGHTSEEING CORPORATION, A DELAWARE et al
001C03782781
Instructions:
Please place this sheet on top of the document to be scanned.Ashwin Ladva, Esq. (SB# 206140)
LADVA LAW FIRM 8
530 Jackson St., 2" floor eetnty Sfeerranctaco”
San Francisco, CA 94133 Sep 97 2012
Telephone: (415) 296-8844
ladvalaw@gmail.com CLERK of TE COURT
BY:
. . Deputy Clerk
Daniel Martinez de la Vega, Esq. (SB# 255885)
LAW OFFICES OF DANIEL VEGA
201 Spear Street, Suite 1100
San Francisco, CA 94105
Telephone: (415) 287-6203
Fax: (415) 704-5067
dvega@vegalawyer.com
Attorneys for Salvatore Mineo, Gina Schembari, Phillip T Nails, Benjamin Duax, and David
Hayward individually, and on behalf of all others similarly situated,
SUPERIOR COURT FOR THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCSICO
Salvatore Mineo, Gina Schembari, Case No: CGC-10-504804
Phillip Thomas Nails, Benjamin Duax, COMPLAINT FILED ON: October 22, 2010
and David Hayward individually, and on
behalf of all others similarly situated, CLASS ACTION
PLAINTIFFS’ NOTICE OF MOTION AND
AMENDED MOTION FOR CLASS
Plaintiffs, CERTIFICATION;
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT THEREOF;
vs.
CITY SIGHTSEEING
CORPORATION, A DELAWARE DECLARATION OF ASHWIN LADVA
CORPORATION and DOES 1-500,
inclusive, PLAINTIFFS’ SUPPORTING EVIDENCE
AND DECLARATIONS
fe
Defendants DATE: October 26, 2012
TIME: 9:30 A.M.
DEPT: 302
TO ALL PARTIES AND TO THE ATTORNEYS OF RECORD:
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PLAINTIFFS’ NOTICE OF MOTION AND AMENDED MOTION FOR CLASS CERTIFICATION
Mineo v City Sightseeing Corporation. - GCG-10-504-804an
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NOTICE IS HEREBY GIVEN that on October 26, 2012 at 9:30 A.M., or as
soon thereafter as the matter may be heard, in Department 302 of the above-entitled
Court, Named Plaintiffs, will move this court for an order certifying this action as a
class action.
This motion is made pursuant to California Code of Civil Procedure §382
and supporting case law.
This motion is based on Plaintiffs’ Separate Statement of Evidence and the
Exhibits attached thereto, which was filed concurrently herewith, including:
Declaration of Ashwin Ladva, Declaration of Daniel Vega, Declaration of Salvatore
Mineo, Declaration of Gina Schembari, Declaration of Phillip Thomas Nails,
Declaration of Benjamin Duax, Declaration of David Hayward, Timesheets of
Salvatore Mineo, Plaintiffs’ Third Amended Complaint for Damages, Deposition
excerpts of Defendant’s Person Most Knowledgeable-Andrew Smith; and on the
papers and records on file herein, and on such other oral and documentary evidence
as may be presented at the hearing of this motion.
Dated: oz 7 [1 LZ
Ashwin L:
Attorney for Hlaintiffs
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PLAINTIFFS’ NOTICE OF MOTION AND AMENDED MOTION FOR CLASS CERTIFICATION
Mineo v City Sightseeing Corporation. - GCG-10-504-804nn Rw
IL INTRODUCTION
Named Plaintiffs and proposed Class Representatives seek to represent three classes of
employees of Defendant City Sightseeing Corporation (hereinafter referred to as “CSC” or
“Defendant”).
On August 30, 2012, the Court Certified Class | and 2 regarding violations of California
overtime law. As of the time of preparing this motion the Court bas not confirmed its tentative
decision to certify Class 3. The fact the Court has already found grounds to certify the Classes
for failure to pay overtime therefore the Court must, as a matter of law, now find the same
justification to certify the Classes for a cause of action under the UCL. Plaintiffs seek, by way ofj
this motion, to further certify all three Classes under the UCL for failure to pay overtime and to
certify all employees for misclassification as independent contractors:
Class I & I: All current and former Front Desk Reception/Inside
Sales employees of Defendant who worked at CSC’s San Francisco office
during the class period of October 22, 2006 through October 22, 2010, for:
Violations of UCL and for Misclassification as an Independent
contractors.
Class II: All current and former Bus Driver employees who worked at
CSC’s San Francisco office during the class period of October 22, 2007
through October 22, 2010, for: Violations of UCL for 1) Not being paid
overtime compensation in violation of FLSA and 2) Misclassification as
Independent contractors.
The Court need not go through the lengthy analysis for Class certification presented
below because the Court has already found that the classes are eligible for certification.
However, for completeness, plaintiffs have outlined reasons for certification again below:
The putative class members have already been ascertained, and Defendants have
identified the majority of class members by name and address. Class I consists of 21 members,
Class II has 43 members, and Class III has 49 putative members. All three classes are
sufficiently numerous and joinder is impractical because of the size of the classes, and putative
members’ geographical locations throughout the state. Plaintiffs’ claims are typical of the
classes they represent. They were subject to the same company policies of their respective
putative class members, had the same job duties as their respective putative class members, were
=]-
PLAINTIFFS’ NOTICE OF MOTION AND AMENDED MOTION FOR CLASS CERTIFICATION
Mineo v City Sightseeing Corporation. - GCG- 10-504-804required to work overtime without additional compensation and were misclassified.
Commonality exists for all three proposed classes as the Defendants violations are the
result of company-wide policies and regulations, and have not been individualized to any specifid
potential class member. The job requirements, restrictions, and duties are similar class-wide in
each sub-class. Finally, this class action will clearly be superior to 113 individual lawsuits
regarding these relatively small monetary claims for company wide issues.
IL. SUMMARY OF ACTION
CSC is a California Tour Company that offers various tour services in the San Francisco
Bay Area. CSC employs many categories of employees in its operation including Tour Guides,
Bus Drivers, Front Desk Staff, Street Sales Staff, Dispatchers, Mechanics, Local Sales Staff and
Online Reservations Staff. CSC’s tour offerings were only in California. This Motion for Class
Certification seeks to certify classes representing Front Desk Staff, Tour Guides, and Bus
Drivers in their capacities of employment with CSC. Putative members of Classes I and II have
the same claims and questions of law and fact. Those classes have been so divided to reflect the
commonality of job duties of the putative members of each class. Because class III consists of
Bus Drivers who are subject to the Fair Labor Standards Act, 29 U.S.C § 207 et seq. the
questions of federal law regarding the FLSA in class III are specific to that sub-class.
CSC management has already admitted to having a policy of not paying employees
overtime and misclassifying employees as independent contractors during the class period. These
policies and practices are contrary to state and federal law and the foundations of the Class
claims against CSC. The amount of damages each individual would receive as result of CSC’s
illegal practices is the only difference among the class members.
Il. CALIFORNIA’S JUDICIAL POLICY FAVORS CLASS CERTIFICATION
CALIFORNIA'S JUD A eee ——E—EeEeEEE~=~=—EOor—_—_—_”
In Sav-On Drug Stores, Inc. v. Superior Court (Rocher) (2004) 34 Cal.4th 319, 326, the
California Supreme Court reviewed "the established standards for class certification" as follows:
2
PLAINTIFFS’ NOTICE OF MOTION AND AMENDED MOTION FOR CLASS CERTIFICATION
Mineo v City Sightseeing Corporation. — GCG-10-504-804Accordingly, the two requirements necessary for certification in a California class action
are: (1) an Ascertainable class; and (2) a well-defined community of interest among class
members. Id.
A. Individual Variations among Class Members as To Damages Are Not a Bar
to Class Certification
The one issue not common among putative class members is the amount of damages that
each may be entitled to receive. Such individual variations have been expressly provided for and
are not a bar to class certification.! A requirement that each class member must, at some time,
make an individual showing as to his or her right to recovery or as to the amount of damages
does not render a class action inappropriate.? Therefore, under Sav-On, the only two
requirements the court should consider for a certification motion in a California class action are:
(1) whether the class is ascertainable; and (2) whether there is a well-defined Community of
Interest among class members.
IV. THERE ARE THREE CLASSES THIS COURT SHOULD CERTIFY
SEINE, AIR IN DD OO SOOOOOoOoo——r"'_'”
A. CLASS I & II: All current and former Front Desk Reception/Inside Sales &
Tour Guide employees of Defendant who worked at CSC’s San Francisco office
during the class period of October 22, 2006 through October 22, 2010, :
Violations of UCL and for Misclassification as an Independent contractors.
1. An Ascertainable Class
In determining ascertainability, the court must examine: (1) the class definition; (2) the
size of the class; and (3) the means available for identifying class members. Typically, in
employment cases, ascertainability is not at issue because the class members are easily
identifiable — they are employees of the company and the employer is required under the
California Labor Code and Industrial Wage Orders to maintain their identification and location.4
In this case, the Class I & II definition is objective and narrowly defined to include only
1 Employment Development Dept. v. Superior Court (1981) 30 Cal.3d 256, 266.
2 Ia.
3 Reyes v. Board of Supervisors of San Diego County (1987) 196 Cal.App.3d 1263, 1271
4 Labor Code §§ 226, 1174 and 1175; See Rich v. Schwab (1984) 162 Cal.App.3d 739, 744
[class members ascertainable because identifiable from Defendant’s business records without
unreasonable expense or time].
3:
PLAINTIFFS’ NOTICE OF MOTION AND AMENDED MOTION FOR CLASS CERTIFICATION
Mineo v City Sightseeing Corporation. - GCG-10-504-804employees of CSC whose job description was Front Desk/Inside Sales & Tour Guides during the
class period of October 22, 2006 through October 22, 2011. The Class Sizes are finite and
determinable; based on actual CSC identified class members.>
The questions of law and fact of Class IT members are nearly identical to Class I
members, with the only distinction being job type, Tour Guide vs. Front Desk.
2. A Well-Defined Community Of Interest
“The ‘community of interest’ requirements are more broadly expressed as (1) numerosity
of class members; (2) typicality of claims; (3) adequacy of representation; (4) superiority of the
class action; and (5) predominance of common questions of law and fact. These requirements are
codified in the Consumer Legal Remedies Act (“CLRA”), Civil Code § 1781, and are recognized]
by the California Supreme Court as pragmatic and efficient procedural devices.6
a. Numerosity
Numerosity means the “class is sufficiently numerous that individual joinder is
impracticable. However, “no set number is required as a matter of law for the maintenance of a
class action.” Rose v. City of Hayward (1981) 126 Cal.App. 3d 926. The proposed Plaintiff
Class must be sufficiently numerous that the joinder of its members is impracticable.” Plaintiffs
need not allege the exact number and identities of class members, but must only establish that thel
identifying members is a manageable task8
The joinder of these class members is impracticable for several reasons. The current
location of some of the putative classes makes joinder of all members impracticable as they
reside in different cities throughout the State.? Furthermore, class members are low wage earner
- $11-13 per hour — and individual claims for short-term employees would be very low and cost
inefficient.!°
5 Declaration of Ashwin Ladva, J 11-13
6 Vasquez v. Superior Court (1971) 4 Cal.3d 800, 820.
7 Richmond supra, at 470.
8 See Reyes, supra, at 1274-75
9 Declaration of Ashwin Ladva, 416
10 pgk-BB 411: (Dec. of Salvatore Mineo)
4.
PLAINTIFFS’ NOTICE OF MOTION AND AMENDED MOTION FOR CLASS CERTIFICATION
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b. Typicality
Typicality looks to the nature of the claims or defenses, not the specific facts from which
the claims or defenses arose or the relief sought. Seastrom v. Neways, Inc. (2007) 149
Cal.App.4th 1496, 1502. The test of typicality is “whether other members have the same or
similar injury, whether the action is based on conduct which is not unique to the named
plaintiffs, and whether other class members have been injured by the same course of conduct.”
Id. The claims of each class member need not be identical.!!
Plaintiffs, and putative members of Class I & II were all Front Desk Staff or Tour Guides
employed by CSC in California during the class period. The named Plaintiffs and putative
members of Class I & II all have the same claims based on the practices of CSC which resulted
in Class I & II members being denied overtime compensation in violation of California law and
Missclassified. Accordingly, typicality is satisfied.
e Adequacy
The adequacy requirement is met by fulfilling two conditions — 1) the named plaintiffs
must be represented by counsel qualified to conduct the litigation, 2) the named plaintiffs’
interests in the litigation must not be antagonistic to the class ~ i.e., they must have no disabling
conflict of interest that might hinder the prosecution of the action on behalf of the class. 12
The named Plaintiffs’ interests in the litigation are co-extensive with the interests of the
class as they have been injured in the same manner, though the same practices and policies of
CSC, and seek the same relief as the putative class members. 13 Plaintiffs do not have any
interests in this case that conflict with the interests of the potential class members, they are
willing and able to adequately represent the interests of the classes, have been and will continue
to participate in the litigation, and understand that they must seek the best interest of the class
throughout litigation.!4 Accordingly the adequacy requirement is satisfied.
11 gee Classen v. Weller (1983) 145 Cal.App.3d 27, See also 46-47. Rosack v. Volvo of Americal
Corporation (1982) 131 Cal.App.3d 741, 756-757.
12 McGhee v. Bank of America (1976) 60 Cal.App.3d 442, 451
13 pgE-BB 414, 22-23 (Declaration of Salvatore Mineo)
14 (Declaration of Ashwin Ladva)
5.
PLAINTIFFS’ NOTICE OF MOTION AND AMENDED MOTION FOR CLASS CERTIFICATION
Mineo v City Sightseeing Corporation. - GCG-10-504-804wn
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d. Superiority
Plaintiff must also show that the class action is superior to other available means for the
fair and efficient adjudication of the controversy.!5 The Court must carefully weigh respective
benefits and burdens and will allow maintenance of the class action only where substantial
benefits accrue to both litigants and the courts. See Linder v. Thrift Oil Co. (2000) 23 Cal.4th
429, 435. Class actions are favorable where there are group injuries in which individual are in a
poor position seek legal because they do not know enough or because the redress is
disproportionately expensive. !6 Further, a multitude of individual actions presents a risk of
inconsistent or varying adjudications, which could establish incompatible standards of conduct
for the Defendants, and other members of the industry.
The class action device may be the only method of redress that current CSC employees
have. Many putative class members are current employees and have worked for the Defendant
for an extended period of time.!7 The class action is a superior forum in which to resolve the
issue of CSC’s defenses. Furthermore, it is impracticable to join putative class members
individually into this case because class members live all over California.!8 Deterrence of
illegal conduct is especially important in the wage-and-hour context, and the Courts’
commitment to the use of class actions to resolve controversies involving large numbers of
potential claimants are the primary factors underlying this element. Accordingly, “superiority” is
satisfied.
e. Commonality
In class certification, common issues "predominate" when they constitute a significant
part of the individual cases.!9 The ultimate question in every [proposed class action] is
whether, given an ascertainable class, the issues may be jointly tried, when compared with those
requiring separate adjudication, are so numerous or substantial that the maintenance of the class
15 Dean Witter Reynolds, Inc. v. Superior Court (1989) 211 Cal.App.3d 758, 772-773.
16 See Vasquez v. Superior Court (1971) 4 Cal.3d 800, 807
17 Declaration of Ashwin Ladva, 120
18 Declaration of Ashwin Ladva, 416
19 Jenkins v. Raymark, (1991) 782 F.2d 468, 472
~6-
PLAINTIFFS’ NOTICE OF MOTION AND AMENDED MOTION FOR CLASS CERTIFICATION
Mineo v City Sightseeing Corporation. - GCG-10-504-804action would be advantageous to the judicial process and to the litigants. Brown v. The Regents
of the University of California (1984) 151 Cal.App.3d 982, 989.
There are several questions of law and fact which are common among all proposed Class
I members:
i. Was Front Desk and Tour Guides employee wrongly classified as an independent
contractor a violation of UCL?
In this case, all members of the class were treated uniformly, and were similarly denied
overtime pay and misclassified as a result of company policy.?° The proof of damages to
putative members can easily be calculated by examining Defendant’s records.
A. C. CLASS II: All current and former Bus Driver employees who worked at
CSC’s San Francisco office during the class period of October 22, 2007 through
October 22, 2010, who: Violations of UCL for 1) Not being paid overtime
compensation in violation of FLSA and 2) Misclassification as Independent
contractors.
1. Overview of Class III
Putative Class II] members are all current and former CSC employees who worked for
CSC during the class period.2! The questions of fact are identical to putative Class I and IL
members with the only distinction being job type and that the FLSA applies to the bus drivers.
2. Ascertainability
In this class, the definition for Class III is objective and narrowly defined as those whose
job description was Bus Driver during the class period of October 22, 2006 through October 22,
2011. CSC has identified 49 Bus Driver employees in the San Francisco office during the class
period.22 The Class Size is finite and determinable; based on actual CSC identified class
members. Defendants provided Plaintiffs with times sheets for all employees throughout the
class period. These records contain the hours worked for all of the class members.23
Accordingly all elements of ascertainability have been established.
3. Well-Defined Community of Interest
20 pSE-AA 926-78, (Declaration of Salvatore Mineo)
21 Declaration of Ashwin Ladva 5, 10, 12, 15
22 Declaration of Ashwin Ladva 413
23 Declaration of Ashwin Ladva 417
"7
PLAINTIFFS’ NOTICE OF MOTION AND AMENDED MOTION FOR CLASS CERTIFICATION
Mineo v City Sightseeing Corporation. - GCG-10-504-804a. Numerosity
To establish numerosity, plaintiffs need only show that the proposed Plaintiff Class must
be sufficiently numerous that the joinder of its members is impracticable.24 Joinder of these
class members is impracticable for this class because the 49 class members reside all over the
state of California.25 Additionally, the individual members’ damages, while not insubstantial, are
low enough to make it unlikely that individual members would pursue their individual claims
without the aid of class representation, which in turn would be cost ineffective.
b. Typicality
The named Plaintiffs’ interest must be similar to that of the other members of the
proposed class. Here, Plaintiffs’ and other putative Class III] members’ interests and claims are
identical, and they were all subject to the same policies and practices of CSC.27 Therefore, the
typicality requirement is satisfied.
c Adequacy
Plaintiffs’ counsel is qualified to conduct the litigation, and Plaintiffs’ interests are not
antagonistic to the class. This has been demonstrated through the Plaintiffs and their Counsel’s
declarations, and their dedication to this case throughout the past two and a half years.28
Furthermore, as CSC has done with Class I and Class II proposed representatives, Defendants
have also asserted a cross complaint against Class III proposed representative David Hayward
for the exact same allegations. The fact that CSC never asserted such claims against Mr.
Hayward until after the filing of this action demonstrates that CSC will assert such defenses
against all putative Class II] members. Accordingly, the counterclaims do not diminish Mr.
Hayward’s adequacy as class representatives, but rather, fortifies his adequacy.
d. Superiority
Plaintiff must also show that the class action is superior to other available means for the
24 Richmond, supra, at 470
25 Declaration of Ashwin Ladva 413
26 Richmond, supra, at 470-475
27 PSE-D 922-25 (Declaration of David Hayward); Declaration of Ashwin Ladva, $25-26
28 PSE-D 423-25; Declaration of Ashwin Ladva 29-32,
8.
PLAINTIFFS’ NOTICE OF MOTION AND AMENDED MOTION FOR CLASS CERTIFICATION
Mineo v City Sightseeing Corporation. - GCG-10-504-804owe ND
fair and efficient adjudication of the controversy.29 The class action device may be the only
method of redress that current CSC employees have because many putative Class III members
are current employees and that fact would understandably cause reluctance of such people to
pursue individual lawsuits against CSC for fear of some form of retaliation. Moreover, CSC has
shown, by its counterclaims against proposed the Class III representative, that it intends to utilize|
the same counterclaims against all putative Class II] members. Therefore, the class action is a
superior forum in which to resolve the issue of CSC’s defense. It is impracticable to join
putative class members individually into this case because class members live all over
California.30 Moreover, a class action because Class III members would have minimal claims
and individual prosecution of these claims would be impractical. Accordingly, “superiority” is
satisfied for Class III.
e. Commonality
Questions of law and facts are common among all proposed class members:
i. | Whether Defendant's failure to pay Bus Drivers overtime pay under the FLSA id
a violation of UCL?
ii. Whether Defendant’s failure to pay Bus Drivers overtime pay under Californig
law is a violation of UCL?
iii, | Were Bus Drivers covered as employees under the FLSA?
iv. Were Defendant’s policies and practices a willful violation of the FLSA?
vy. Misclassification of Bus Drivers as Independent Contractors a violation of UCL?
All putative members of the class were treated uniformly, and were similarly denied
overtime pay, as a result of company policy.3! CSC management has admitted that during the
Class period, CSC maintained a policy of not paying any employee overtime,32 These
admissions by CSC show that all Class II] members were subject to the same policies, and that
the only differences between Class III members would be the factual distinction of how much
each individual member is owed. Defendant’s policy & practice that violated the Labor Code
29 Dean Witter Reynolds, Inc. v. Superior Court (1989) 211 Cal.App.3d 758, 772-773.
30 Declaration of Ashwin Ladva 16
31 PSE-AA 926-78
32 pSE-GG (Smith Deposition Excerpts)
PLAINTIFFS’ NOTICE OF MOTION AND AMENDED MOTION FOR CLASS CERTIFICATION
Mineo v City Sightseeing Corporation. - GCG-10-504-804may also be held an “unlawful business practice” under Business & Professions Code sec 17200
et seq. Hudgins v. Nieman Marcus (1995) 34 Cal.App.4th 1109.
e Class III may be based on Unfair Business Competition Claims On
Misclassification and FLSA Overtime Violations.
The UCL may be predicated on the violation of any federal, state or local law, the fact
that Defendant remains potentially in violation of the federal law is sufficient to render the
UCL's safe harbor provision inapposite under the circumstances presented. Burden v.
SelectQuote Ins. Servs., 2012 U.S. Dist. LEXIS 80753 (N.D. Cal. June 8, 2012) *9. Furthermore}
FLSA opt-in procedure does not bar it from being certified in an opt-out certification. Id. At *10.
The Burden Court dealt with this issue directly:
“Defendant's second contention fares no better. Specifically, Defendant argues thay
Plaintiff must utilize the opt-in procedures applicable to actions brought directly unde
the FLSA, as opposed to the opt-out procedures of Rule 23. According to Defendant.
permitting Plaintiff to seek class certification under Rule 23 would circumvent Congress}
[*10] intention to limit the scope of FLSA actions through the opt-in procedure. The fla
in Defendant's argument is that it ignores the fundamental operation of the UCL. "B
proscribing 'any unlawful’ business practices, section 17200 ‘borrows’ violations of other
laws and treats them as unlawful practices that the unfair competition law make:
independently actionable." Cel-Tech Comm'ns, 20 Cal.4th at 180 (internal quotations an:
citations omitted). As such, the "unlawful" prong of the UCL effectively transforms a
violation of the underlying law—here, the FLSA—into a violation of the UCL. Id.
Plaintiff's second cause and fourth causes of action are thus not FLSA claims per se, but
instead are state law UCL claims which "borrow" the provisions of the FLSA. In other
words, the alleged violations of the FLSA are tantamount to violations of California law.
See id. 2 It is for that reason that federal and state courts have rejected the notion that a
UCL claim premised on a violation of the FLSA must utilize the FLSA's opt-in
procedure. E.g., Tomlinson v. Indymac Bank, 359 F. Supp. 2d 898, 900 (C.D. Cal. 2005)
(finding that while non-opt-in claimants "are procedurally barred from bringing a claim
[*11] under the FLSA{,] ... they nevertheless may pursue their independent UCL
claim."); accord Thorpe v. Abbott Labs., Inc., 534 F. Supp. 2d 1120, 1125 (N.D. Cal.
2008) (Whyte, J.); Takacs v. A.G. Edwards and Sons, Inc., 444 F. Supp. 2d 1100, 1116-
17 (S.D. Cal. 2006); Bahramipour v. Citigroup Global Markets, Inc., No. C 04-4440 CW,
2006 U.S. Dist. LEXIS 9010, 2006 WL 449132, *4 (N.D. Cal., Feb 22, 2006) (Wilken,
J.); Barnett v. Washington Mut. Bank, FA, 2004 U.S. Dist. LEXIS 18491, 2004 WL
2011462, *6 (N.D. Cal., Sept. 9, 2004) (Breyer, J.); Harris v. Investor's Business Daily,
Inc., 138 Cal.App.4th 28, 35, 41 Cal. Rptr. 3d 108 (2006).” Id. At *10.
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PLAINTIFFS’ NOTICE OF MOTION AND AMENDED MOTION FOR CLASS CERTIFICATION
Mineo v City Sightseeing Corporation. - GCG-10-504-804Vv. CONCLUSION
For the foregoing reasons, Plaintiffs respectfully submit that Class I, Class II, and Class
III should be certified.
gir
Respectfully submitted,
Date:
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PLAINTIFFS’ NOTICE OF MOTION AND AMENDED MOTION FOR CLASS CERTIFICATION
Mineo v City Sightseeing Corporation. - GCG-10-504-804
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MOA SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet Sep-27-2012 3:11 pm Case Number: CGC-10-504804 Filing Date: Sep-27-2012 3:09 Filed by: WESLEY G. RAMIREZ Juke Box: 001 Image: 03782781 MOTION (CIVIL GENERIC) SALVATORE MINEO INDIVIDUALLY, AND ON BEHALF OF ALL et al VS. CITY SIGHTSEEING CORPORATION, A DELAWARE et al 001C03782781 Instructions: Please place this sheet on top of the document to be scanned.Ashwin Ladva, Esq. (SB# 206140) LADVA LAW FIRM 8 530 Jackson St., 2" floor eetnty Sfeerranctaco” San Francisco, CA 94133 Sep 97 2012 Telephone: (415) 296-8844 ladvalaw@gmail.com CLERK of TE COURT BY: . . Deputy Clerk Daniel Martinez de la Vega, Esq. (SB# 255885) LAW OFFICES OF DANIEL VEGA 201 Spear Street, Suite 1100 San Francisco, CA 94105 Telephone: (415) 287-6203 Fax: (415) 704-5067 dvega@vegalawyer.com Attorneys for Salvatore Mineo, Gina Schembari, Phillip T Nails, Benjamin Duax, and David Hayward individually, and on behalf of all others similarly situated, SUPERIOR COURT FOR THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN FRANCSICO Salvatore Mineo, Gina Schembari, Case No: CGC-10-504804 Phillip Thomas Nails, Benjamin Duax, COMPLAINT FILED ON: October 22, 2010 and David Hayward individually, and on behalf of all others similarly situated, CLASS ACTION PLAINTIFFS’ NOTICE OF MOTION AND AMENDED MOTION FOR CLASS Plaintiffs, CERTIFICATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; vs. CITY SIGHTSEEING CORPORATION, A DELAWARE DECLARATION OF ASHWIN LADVA CORPORATION and DOES 1-500, inclusive, PLAINTIFFS’ SUPPORTING EVIDENCE AND DECLARATIONS fe Defendants DATE: October 26, 2012 TIME: 9:30 A.M. DEPT: 302 TO ALL PARTIES AND TO THE ATTORNEYS OF RECORD: oe PLAINTIFFS’ NOTICE OF MOTION AND AMENDED MOTION FOR CLASS CERTIFICATION Mineo v City Sightseeing Corporation. - GCG-10-504-804an io om ND 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NOTICE IS HEREBY GIVEN that on October 26, 2012 at 9:30 A.M., or as soon thereafter as the matter may be heard, in Department 302 of the above-entitled Court, Named Plaintiffs, will move this court for an order certifying this action as a class action. This motion is made pursuant to California Code of Civil Procedure §382 and supporting case law. This motion is based on Plaintiffs’ Separate Statement of Evidence and the Exhibits attached thereto, which was filed concurrently herewith, including: Declaration of Ashwin Ladva, Declaration of Daniel Vega, Declaration of Salvatore Mineo, Declaration of Gina Schembari, Declaration of Phillip Thomas Nails, Declaration of Benjamin Duax, Declaration of David Hayward, Timesheets of Salvatore Mineo, Plaintiffs’ Third Amended Complaint for Damages, Deposition excerpts of Defendant’s Person Most Knowledgeable-Andrew Smith; and on the papers and records on file herein, and on such other oral and documentary evidence as may be presented at the hearing of this motion. Dated: oz 7 [1 LZ Ashwin L: Attorney for Hlaintiffs -li- PLAINTIFFS’ NOTICE OF MOTION AND AMENDED MOTION FOR CLASS CERTIFICATION Mineo v City Sightseeing Corporation. - GCG-10-504-804nn Rw IL INTRODUCTION Named Plaintiffs and proposed Class Representatives seek to represent three classes of employees of Defendant City Sightseeing Corporation (hereinafter referred to as “CSC” or “Defendant”). On August 30, 2012, the Court Certified Class | and 2 regarding violations of California overtime law. As of the time of preparing this motion the Court bas not confirmed its tentative decision to certify Class 3. The fact the Court has already found grounds to certify the Classes for failure to pay overtime therefore the Court must, as a matter of law, now find the same justification to certify the Classes for a cause of action under the UCL. Plaintiffs seek, by way ofj this motion, to further certify all three Classes under the UCL for failure to pay overtime and to certify all employees for misclassification as independent contractors: Class I & I: All current and former Front Desk Reception/Inside Sales employees of Defendant who worked at CSC’s San Francisco office during the class period of October 22, 2006 through October 22, 2010, for: Violations of UCL and for Misclassification as an Independent contractors. Class II: All current and former Bus Driver employees who worked at CSC’s San Francisco office during the class period of October 22, 2007 through October 22, 2010, for: Violations of UCL for 1) Not being paid overtime compensation in violation of FLSA and 2) Misclassification as Independent contractors. The Court need not go through the lengthy analysis for Class certification presented below because the Court has already found that the classes are eligible for certification. However, for completeness, plaintiffs have outlined reasons for certification again below: The putative class members have already been ascertained, and Defendants have identified the majority of class members by name and address. Class I consists of 21 members, Class II has 43 members, and Class III has 49 putative members. All three classes are sufficiently numerous and joinder is impractical because of the size of the classes, and putative members’ geographical locations throughout the state. Plaintiffs’ claims are typical of the classes they represent. They were subject to the same company policies of their respective putative class members, had the same job duties as their respective putative class members, were =]- PLAINTIFFS’ NOTICE OF MOTION AND AMENDED MOTION FOR CLASS CERTIFICATION Mineo v City Sightseeing Corporation. - GCG- 10-504-804required to work overtime without additional compensation and were misclassified. Commonality exists for all three proposed classes as the Defendants violations are the result of company-wide policies and regulations, and have not been individualized to any specifid potential class member. The job requirements, restrictions, and duties are similar class-wide in each sub-class. Finally, this class action will clearly be superior to 113 individual lawsuits regarding these relatively small monetary claims for company wide issues. IL. SUMMARY OF ACTION CSC is a California Tour Company that offers various tour services in the San Francisco Bay Area. CSC employs many categories of employees in its operation including Tour Guides, Bus Drivers, Front Desk Staff, Street Sales Staff, Dispatchers, Mechanics, Local Sales Staff and Online Reservations Staff. CSC’s tour offerings were only in California. This Motion for Class Certification seeks to certify classes representing Front Desk Staff, Tour Guides, and Bus Drivers in their capacities of employment with CSC. Putative members of Classes I and II have the same claims and questions of law and fact. Those classes have been so divided to reflect the commonality of job duties of the putative members of each class. Because class III consists of Bus Drivers who are subject to the Fair Labor Standards Act, 29 U.S.C § 207 et seq. the questions of federal law regarding the FLSA in class III are specific to that sub-class. CSC management has already admitted to having a policy of not paying employees overtime and misclassifying employees as independent contractors during the class period. These policies and practices are contrary to state and federal law and the foundations of the Class claims against CSC. The amount of damages each individual would receive as result of CSC’s illegal practices is the only difference among the class members. Il. CALIFORNIA’S JUDICIAL POLICY FAVORS CLASS CERTIFICATION CALIFORNIA'S JUD A eee ——E—EeEeEEE~=~=—EOor—_—_—_” In Sav-On Drug Stores, Inc. v. Superior Court (Rocher) (2004) 34 Cal.4th 319, 326, the California Supreme Court reviewed "the established standards for class certification" as follows: 2 PLAINTIFFS’ NOTICE OF MOTION AND AMENDED MOTION FOR CLASS CERTIFICATION Mineo v City Sightseeing Corporation. — GCG-10-504-804Accordingly, the two requirements necessary for certification in a California class action are: (1) an Ascertainable class; and (2) a well-defined community of interest among class members. Id. A. Individual Variations among Class Members as To Damages Are Not a Bar to Class Certification The one issue not common among putative class members is the amount of damages that each may be entitled to receive. Such individual variations have been expressly provided for and are not a bar to class certification.! A requirement that each class member must, at some time, make an individual showing as to his or her right to recovery or as to the amount of damages does not render a class action inappropriate.? Therefore, under Sav-On, the only two requirements the court should consider for a certification motion in a California class action are: (1) whether the class is ascertainable; and (2) whether there is a well-defined Community of Interest among class members. IV. THERE ARE THREE CLASSES THIS COURT SHOULD CERTIFY SEINE, AIR IN DD OO SOOOOOoOoo——r"'_'” A. CLASS I & II: All current and former Front Desk Reception/Inside Sales & Tour Guide employees of Defendant who worked at CSC’s San Francisco office during the class period of October 22, 2006 through October 22, 2010, : Violations of UCL and for Misclassification as an Independent contractors. 1. An Ascertainable Class In determining ascertainability, the court must examine: (1) the class definition; (2) the size of the class; and (3) the means available for identifying class members. Typically, in employment cases, ascertainability is not at issue because the class members are easily identifiable — they are employees of the company and the employer is required under the California Labor Code and Industrial Wage Orders to maintain their identification and location.4 In this case, the Class I & II definition is objective and narrowly defined to include only 1 Employment Development Dept. v. Superior Court (1981) 30 Cal.3d 256, 266. 2 Ia. 3 Reyes v. Board of Supervisors of San Diego County (1987) 196 Cal.App.3d 1263, 1271 4 Labor Code §§ 226, 1174 and 1175; See Rich v. Schwab (1984) 162 Cal.App.3d 739, 744 [class members ascertainable because identifiable from Defendant’s business records without unreasonable expense or time]. 3: PLAINTIFFS’ NOTICE OF MOTION AND AMENDED MOTION FOR CLASS CERTIFICATION Mineo v City Sightseeing Corporation. - GCG-10-504-804employees of CSC whose job description was Front Desk/Inside Sales & Tour Guides during the class period of October 22, 2006 through October 22, 2011. The Class Sizes are finite and determinable; based on actual CSC identified class members.> The questions of law and fact of Class IT members are nearly identical to Class I members, with the only distinction being job type, Tour Guide vs. Front Desk. 2. A Well-Defined Community Of Interest “The ‘community of interest’ requirements are more broadly expressed as (1) numerosity of class members; (2) typicality of claims; (3) adequacy of representation; (4) superiority of the class action; and (5) predominance of common questions of law and fact. These requirements are codified in the Consumer Legal Remedies Act (“CLRA”), Civil Code § 1781, and are recognized] by the California Supreme Court as pragmatic and efficient procedural devices.6 a. Numerosity Numerosity means the “class is sufficiently numerous that individual joinder is impracticable. However, “no set number is required as a matter of law for the maintenance of a class action.” Rose v. City of Hayward (1981) 126 Cal.App. 3d 926. The proposed Plaintiff Class must be sufficiently numerous that the joinder of its members is impracticable.” Plaintiffs need not allege the exact number and identities of class members, but must only establish that thel identifying members is a manageable task8 The joinder of these class members is impracticable for several reasons. The current location of some of the putative classes makes joinder of all members impracticable as they reside in different cities throughout the State.? Furthermore, class members are low wage earner - $11-13 per hour — and individual claims for short-term employees would be very low and cost inefficient.!° 5 Declaration of Ashwin Ladva, J 11-13 6 Vasquez v. Superior Court (1971) 4 Cal.3d 800, 820. 7 Richmond supra, at 470. 8 See Reyes, supra, at 1274-75 9 Declaration of Ashwin Ladva, 416 10 pgk-BB 411: (Dec. of Salvatore Mineo) 4. PLAINTIFFS’ NOTICE OF MOTION AND AMENDED MOTION FOR CLASS CERTIFICATION Mineo v City Sightseeing Corporation. - GCG-10-504-804Co oe ND HW FB WN woN YN YN NN NY SF Fe Fe Pe es ee st Ss BS & WF Oo 8 SF SD we QR DH FY N = & b. Typicality Typicality looks to the nature of the claims or defenses, not the specific facts from which the claims or defenses arose or the relief sought. Seastrom v. Neways, Inc. (2007) 149 Cal.App.4th 1496, 1502. The test of typicality is “whether other members have the same or similar injury, whether the action is based on conduct which is not unique to the named plaintiffs, and whether other class members have been injured by the same course of conduct.” Id. The claims of each class member need not be identical.!! Plaintiffs, and putative members of Class I & II were all Front Desk Staff or Tour Guides employed by CSC in California during the class period. The named Plaintiffs and putative members of Class I & II all have the same claims based on the practices of CSC which resulted in Class I & II members being denied overtime compensation in violation of California law and Missclassified. Accordingly, typicality is satisfied. e Adequacy The adequacy requirement is met by fulfilling two conditions — 1) the named plaintiffs must be represented by counsel qualified to conduct the litigation, 2) the named plaintiffs’ interests in the litigation must not be antagonistic to the class ~ i.e., they must have no disabling conflict of interest that might hinder the prosecution of the action on behalf of the class. 12 The named Plaintiffs’ interests in the litigation are co-extensive with the interests of the class as they have been injured in the same manner, though the same practices and policies of CSC, and seek the same relief as the putative class members. 13 Plaintiffs do not have any interests in this case that conflict with the interests of the potential class members, they are willing and able to adequately represent the interests of the classes, have been and will continue to participate in the litigation, and understand that they must seek the best interest of the class throughout litigation.!4 Accordingly the adequacy requirement is satisfied. 11 gee Classen v. Weller (1983) 145 Cal.App.3d 27, See also 46-47. Rosack v. Volvo of Americal Corporation (1982) 131 Cal.App.3d 741, 756-757. 12 McGhee v. Bank of America (1976) 60 Cal.App.3d 442, 451 13 pgE-BB 414, 22-23 (Declaration of Salvatore Mineo) 14 (Declaration of Ashwin Ladva) 5. PLAINTIFFS’ NOTICE OF MOTION AND AMENDED MOTION FOR CLASS CERTIFICATION Mineo v City Sightseeing Corporation. - GCG-10-504-804wn om ND d. Superiority Plaintiff must also show that the class action is superior to other available means for the fair and efficient adjudication of the controversy.!5 The Court must carefully weigh respective benefits and burdens and will allow maintenance of the class action only where substantial benefits accrue to both litigants and the courts. See Linder v. Thrift Oil Co. (2000) 23 Cal.4th 429, 435. Class actions are favorable where there are group injuries in which individual are in a poor position seek legal because they do not know enough or because the redress is disproportionately expensive. !6 Further, a multitude of individual actions presents a risk of inconsistent or varying adjudications, which could establish incompatible standards of conduct for the Defendants, and other members of the industry. The class action device may be the only method of redress that current CSC employees have. Many putative class members are current employees and have worked for the Defendant for an extended period of time.!7 The class action is a superior forum in which to resolve the issue of CSC’s defenses. Furthermore, it is impracticable to join putative class members individually into this case because class members live all over California.!8 Deterrence of illegal conduct is especially important in the wage-and-hour context, and the Courts’ commitment to the use of class actions to resolve controversies involving large numbers of potential claimants are the primary factors underlying this element. Accordingly, “superiority” is satisfied. e. Commonality In class certification, common issues "predominate" when they constitute a significant part of the individual cases.!9 The ultimate question in every [proposed class action] is whether, given an ascertainable class, the issues may be jointly tried, when compared with those requiring separate adjudication, are so numerous or substantial that the maintenance of the class 15 Dean Witter Reynolds, Inc. v. Superior Court (1989) 211 Cal.App.3d 758, 772-773. 16 See Vasquez v. Superior Court (1971) 4 Cal.3d 800, 807 17 Declaration of Ashwin Ladva, 120 18 Declaration of Ashwin Ladva, 416 19 Jenkins v. Raymark, (1991) 782 F.2d 468, 472 ~6- PLAINTIFFS’ NOTICE OF MOTION AND AMENDED MOTION FOR CLASS CERTIFICATION Mineo v City Sightseeing Corporation. - GCG-10-504-804action would be advantageous to the judicial process and to the litigants. Brown v. The Regents of the University of California (1984) 151 Cal.App.3d 982, 989. There are several questions of law and fact which are common among all proposed Class I members: i. Was Front Desk and Tour Guides employee wrongly classified as an independent contractor a violation of UCL? In this case, all members of the class were treated uniformly, and were similarly denied overtime pay and misclassified as a result of company policy.?° The proof of damages to putative members can easily be calculated by examining Defendant’s records. A. C. CLASS II: All current and former Bus Driver employees who worked at CSC’s San Francisco office during the class period of October 22, 2007 through October 22, 2010, who: Violations of UCL for 1) Not being paid overtime compensation in violation of FLSA and 2) Misclassification as Independent contractors. 1. Overview of Class III Putative Class II] members are all current and former CSC employees who worked for CSC during the class period.2! The questions of fact are identical to putative Class I and IL members with the only distinction being job type and that the FLSA applies to the bus drivers. 2. Ascertainability In this class, the definition for Class III is objective and narrowly defined as those whose job description was Bus Driver during the class period of October 22, 2006 through October 22, 2011. CSC has identified 49 Bus Driver employees in the San Francisco office during the class period.22 The Class Size is finite and determinable; based on actual CSC identified class members. Defendants provided Plaintiffs with times sheets for all employees throughout the class period. These records contain the hours worked for all of the class members.23 Accordingly all elements of ascertainability have been established. 3. Well-Defined Community of Interest 20 pSE-AA 926-78, (Declaration of Salvatore Mineo) 21 Declaration of Ashwin Ladva 5, 10, 12, 15 22 Declaration of Ashwin Ladva 413 23 Declaration of Ashwin Ladva 417 "7 PLAINTIFFS’ NOTICE OF MOTION AND AMENDED MOTION FOR CLASS CERTIFICATION Mineo v City Sightseeing Corporation. - GCG-10-504-804a. Numerosity To establish numerosity, plaintiffs need only show that the proposed Plaintiff Class must be sufficiently numerous that the joinder of its members is impracticable.24 Joinder of these class members is impracticable for this class because the 49 class members reside all over the state of California.25 Additionally, the individual members’ damages, while not insubstantial, are low enough to make it unlikely that individual members would pursue their individual claims without the aid of class representation, which in turn would be cost ineffective. b. Typicality The named Plaintiffs’ interest must be similar to that of the other members of the proposed class. Here, Plaintiffs’ and other putative Class III] members’ interests and claims are identical, and they were all subject to the same policies and practices of CSC.27 Therefore, the typicality requirement is satisfied. c Adequacy Plaintiffs’ counsel is qualified to conduct the litigation, and Plaintiffs’ interests are not antagonistic to the class. This has been demonstrated through the Plaintiffs and their Counsel’s declarations, and their dedication to this case throughout the past two and a half years.28 Furthermore, as CSC has done with Class I and Class II proposed representatives, Defendants have also asserted a cross complaint against Class III proposed representative David Hayward for the exact same allegations. The fact that CSC never asserted such claims against Mr. Hayward until after the filing of this action demonstrates that CSC will assert such defenses against all putative Class II] members. Accordingly, the counterclaims do not diminish Mr. Hayward’s adequacy as class representatives, but rather, fortifies his adequacy. d. Superiority Plaintiff must also show that the class action is superior to other available means for the 24 Richmond, supra, at 470 25 Declaration of Ashwin Ladva 413 26 Richmond, supra, at 470-475 27 PSE-D 922-25 (Declaration of David Hayward); Declaration of Ashwin Ladva, $25-26 28 PSE-D 423-25; Declaration of Ashwin Ladva 29-32, 8. PLAINTIFFS’ NOTICE OF MOTION AND AMENDED MOTION FOR CLASS CERTIFICATION Mineo v City Sightseeing Corporation. - GCG-10-504-804owe ND fair and efficient adjudication of the controversy.29 The class action device may be the only method of redress that current CSC employees have because many putative Class III members are current employees and that fact would understandably cause reluctance of such people to pursue individual lawsuits against CSC for fear of some form of retaliation. Moreover, CSC has shown, by its counterclaims against proposed the Class III representative, that it intends to utilize| the same counterclaims against all putative Class II] members. Therefore, the class action is a superior forum in which to resolve the issue of CSC’s defense. It is impracticable to join putative class members individually into this case because class members live all over California.30 Moreover, a class action because Class III members would have minimal claims and individual prosecution of these claims would be impractical. Accordingly, “superiority” is satisfied for Class III. e. Commonality Questions of law and facts are common among all proposed class members: i. | Whether Defendant's failure to pay Bus Drivers overtime pay under the FLSA id a violation of UCL? ii. Whether Defendant’s failure to pay Bus Drivers overtime pay under Californig law is a violation of UCL? iii, | Were Bus Drivers covered as employees under the FLSA? iv. Were Defendant’s policies and practices a willful violation of the FLSA? vy. Misclassification of Bus Drivers as Independent Contractors a violation of UCL? All putative members of the class were treated uniformly, and were similarly denied overtime pay, as a result of company policy.3! CSC management has admitted that during the Class period, CSC maintained a policy of not paying any employee overtime,32 These admissions by CSC show that all Class II] members were subject to the same policies, and that the only differences between Class III members would be the factual distinction of how much each individual member is owed. Defendant’s policy & practice that violated the Labor Code 29 Dean Witter Reynolds, Inc. v. Superior Court (1989) 211 Cal.App.3d 758, 772-773. 30 Declaration of Ashwin Ladva 16 31 PSE-AA 926-78 32 pSE-GG (Smith Deposition Excerpts) PLAINTIFFS’ NOTICE OF MOTION AND AMENDED MOTION FOR CLASS CERTIFICATION Mineo v City Sightseeing Corporation. - GCG-10-504-804may also be held an “unlawful business practice” under Business & Professions Code sec 17200 et seq. Hudgins v. Nieman Marcus (1995) 34 Cal.App.4th 1109. e Class III may be based on Unfair Business Competition Claims On Misclassification and FLSA Overtime Violations. The UCL may be predicated on the violation of any federal, state or local law, the fact that Defendant remains potentially in violation of the federal law is sufficient to render the UCL's safe harbor provision inapposite under the circumstances presented. Burden v. SelectQuote Ins. Servs., 2012 U.S. Dist. LEXIS 80753 (N.D. Cal. June 8, 2012) *9. Furthermore} FLSA opt-in procedure does not bar it from being certified in an opt-out certification. Id. At *10. The Burden Court dealt with this issue directly: “Defendant's second contention fares no better. Specifically, Defendant argues thay Plaintiff must utilize the opt-in procedures applicable to actions brought directly unde the FLSA, as opposed to the opt-out procedures of Rule 23. According to Defendant. permitting Plaintiff to seek class certification under Rule 23 would circumvent Congress} [*10] intention to limit the scope of FLSA actions through the opt-in procedure. The fla in Defendant's argument is that it ignores the fundamental operation of the UCL. "B proscribing 'any unlawful’ business practices, section 17200 ‘borrows’ violations of other laws and treats them as unlawful practices that the unfair competition law make: independently actionable." Cel-Tech Comm'ns, 20 Cal.4th at 180 (internal quotations an: citations omitted). As such, the "unlawful" prong of the UCL effectively transforms a violation of the underlying law—here, the FLSA—into a violation of the UCL. Id. Plaintiff's second cause and fourth causes of action are thus not FLSA claims per se, but instead are state law UCL claims which "borrow" the provisions of the FLSA. In other words, the alleged violations of the FLSA are tantamount to violations of California law. See id. 2 It is for that reason that federal and state courts have rejected the notion that a UCL claim premised on a violation of the FLSA must utilize the FLSA's opt-in procedure. E.g., Tomlinson v. Indymac Bank, 359 F. Supp. 2d 898, 900 (C.D. Cal. 2005) (finding that while non-opt-in claimants "are procedurally barred from bringing a claim [*11] under the FLSA{,] ... they nevertheless may pursue their independent UCL claim."); accord Thorpe v. Abbott Labs., Inc., 534 F. Supp. 2d 1120, 1125 (N.D. Cal. 2008) (Whyte, J.); Takacs v. A.G. Edwards and Sons, Inc., 444 F. Supp. 2d 1100, 1116- 17 (S.D. Cal. 2006); Bahramipour v. Citigroup Global Markets, Inc., No. C 04-4440 CW, 2006 U.S. Dist. LEXIS 9010, 2006 WL 449132, *4 (N.D. Cal., Feb 22, 2006) (Wilken, J.); Barnett v. Washington Mut. Bank, FA, 2004 U.S. Dist. LEXIS 18491, 2004 WL 2011462, *6 (N.D. Cal., Sept. 9, 2004) (Breyer, J.); Harris v. Investor's Business Daily, Inc., 138 Cal.App.4th 28, 35, 41 Cal. Rptr. 3d 108 (2006).” Id. At *10. -10- PLAINTIFFS’ NOTICE OF MOTION AND AMENDED MOTION FOR CLASS CERTIFICATION Mineo v City Sightseeing Corporation. - GCG-10-504-804Vv. CONCLUSION For the foregoing reasons, Plaintiffs respectfully submit that Class I, Class II, and Class III should be certified. gir Respectfully submitted, Date: ~11- PLAINTIFFS’ NOTICE OF MOTION AND AMENDED MOTION FOR CLASS CERTIFICATION Mineo v City Sightseeing Corporation. - GCG-10-504-804