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1 JONES DAY
MICHAEL J. GRAY (pro hac vice)
2 mjgray@Jonesday.com
JENNIFER PLAGMAN (pro hac vice)
3 jpIagman@jonesday.com
77 West Wacker APR 12 2019
4 Chicago, Illinois 60601
Telephone: (312) 782-3939
5 Facsimile: (312) 782-8585
6 CINDI L. RITCHEY, SBN 216899
critchey@Jonesday.com
7 4655 Executive Drive, Ste. 1500
San Diego, Califomia 92121
8 Telephone: (858)314-1195
Facsimile: (844) 345-3178
9
KELSEY ISRAEL-TRUMMEL, SBN 282272
10 kitrummel@Jonesday.com
555 Califomia St., 26th Floor
11 San Francisco, Califomia 94104
Telephone: (415) 875-5831
12 Facsimile: (415) 875-5700
13 Attomeys for Defendant
STEVEN MADDEN RETAIL, INC.
14
15 SUPERIOR COURT OF THE STATE OF CALIFORNIA
16 COUNTY OF SACRAMENTO
17
18 EVYANNE PHELPS, individually and on CASE NO. 34-2015-00175330-CU-OE-GDS
behalf of other members of the general public
19 similarly situated. CLASS ACTION
20 Plaintiff, DEFENDANT'S OPPOSITION TO
PLAINTIFF'S MOTION FOR CLASS
21 V. CERTIFICATION
22 STEVEN MADDEN RETAIL, INC. an DATE: June 7,2019
unknown business entity; and DOES 1 TIME: 1:30 pm.
23 through 100, inclusive, DEPT: 35
24 Defendants. Complaint Filed: Febmary 18,2015
25
26
27
28
DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR CLASS CERTIFICATION
1 TABLE OF CONTENTS
^ Page
3 L INTRODUCTION 1
4 II. PLAINTIFF CANNOT SATISFY THE CLASS ACTION REQUIREMENTS 1
5 A. Individualized Issues Predominate in PlaintifPs Off-the-Clock Bag Check
Claim 2
6
B. PlaintifPs Meal and Rest Period Claims Cannot Be Certified 3
7 ..
1. Plaintiff Has Not Demonstrated Any Certifiable Class Based on
8 Steve Madden's Written Policies 3
9 2. Plaintiff Cannot Show a Classwide Practice of Requiring On-Duty
Meals 7
10
3. Plaintiff Is Not An Adequate Class Representative For Her
11 Manager On-Duty Claim, Which Is Not Certifiable In Any Event 8
12 4. Individualized Issues Overwhelm PlaintifPs Claims That Bag
Check and Customer Service Practices Cause Break Violations 10
13
5. Plaintiff Cannot Assert A Class Claim Based On An Alleged
14 Failure to Pay Adequate Meal or Rest Period Premiums 12
15 C. PlaintifPs Wage Statement And Recordkeeping Claims Cannot Be
Certified 14
16 D. PlaintifPs Expense Reimbursement Claim Cannot Be Certified 15
17 E. PlaintifTs Derivative Claims Are Equally,Flawed And A Class Action is
18 Not Superior .; 18
19 F. Plaintiffis Not an Adequate Representative 18
20 G. PlaintifPs Counsel Is Not Adequate 19
21
22
23
24
25
26
27
28
1
DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR CLASS CERTIFICATION
1 TABLE OF AUTHORITIES
2 Page
3 CASES
4 AU V. USA Cab Ltd.,
5 176 Cal. App. 4th 1333 (2009) 1
6 Arenas v. El Torito Rests., Inc.,
^ 183 Cal. App. 4th 723 (2010) ...1
g Basurco v. 21st Century Ins. Co.,
108 Cal. App. 4th 110 (2003) 17
9
Bomersheim v. L.A. Gay & Lesbian Ctr.,
10 184 Cal. App. 4th 1471 (2010) 17
11 Brewer v. Gen. Nutrition Corp.,
12 2014 WL 5877695 (N.D. Cal. Nov. 12, 2014) 12
13
Cal Pak Delivery, Inc. v. United Parcel Service, Inc.,
14 52 Cal. App. 4th 1 (1997) 19
15 Campbell v. Best Buy Stores, L.P.,
16 2013 WL 5302217 (CD. Cal. Sept. 20, 2013) , 12
17 Carov. Procter & Gamble Co.,
18 Cal. App. 4th 644 (1993) 5, 7
18
J^ City ofSan Jose v. Sup. Ct.,
12 Cal. 3d 447(1974) ; 18
20 Clark V. Superior Court,
21 50 Cal. 4th 605 (2010).: 13
22
Duran v. US Bank National Ass 'n,
23 59 Cal. 4th 1 (2014) 18
24 Evans v. lAC/Interactive Corp.,
25 244 F.R.D. 568 (CD. Cal. 2007) 19,20
26 Fireside Bank V. Sup. Ct.,
2^ 40 Cal. 4th 1069 (2007) 1
28
n
DEFENDANT'S OPPOSFFION TO PLAINTIFF'S MOTION FOR CLASS CERTIFICATION
1 Frausto v. Bank ofAm.,
2018 WL 3659251 (N.D. Cal. Aug. 2, 2018).... 14
2
3 Gattuso V. Harte-Hanks Shoppers, Inc.,
42 Cal. 4th 554 (2007) , 17
4
Hale V. Sharp Healthcare,
5
232 Cal. App. 4th 50 (2014) ; 14
6
Howard v. Gap, Inc.,
2009 WL 3571984 (N.D. Cal. Oct. 29, 2009)...; 16
8
Jimenez v. Domino's Pizza, Inc.,
9 238 F.R.D. 241 (CD. Cal. 2006) 19
10 Jones V. Farmers Ins. Exch.,
11 221 Cal. App. 4th 986 (2013) ......18
12 Kaanaana v. Barrett Bus. Servs., Inc.,
29 Cal. App. 5th 778 (2018) .......10
14 Kingsepp v. Wesleyan Univ.,
142 F.R.D. 597 (S.D.N.Y. 1992) 19
15 Kirby v. Immoos Fire Prot., Inc.,
16 53 Cal. 4th 1244 (2012) .....13
17 Kizer V. Tristar Risk Mgmt.,
13 Cal. App. 5th 830 (Ct. App. 2017) 3
18
^^ Koval V. Pac. Bell Tel. Co.,
20 232 Cal. App. 4th 1050 (2014) ...3
21 Lao V. H&MHennes & Mauritz, L.P.,
22
2018 WL 3753708 (N.D. Cal. Aug. 8,2018) .11
23 Lockheed Martin Corp. v. Sup. Ct.,
29 Cal. 4th 1096 (2003) 1
24
2j Madrigal v. Tommy Bahama Group, Inc.,
2011 WL 10511339 (CD. Cal. June 27, 2011) 16
26
Morgan v. Wet Seal, Inc.,
210 Cal. App. 4th 1341 (2012) , 16
28
in
DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR CLASS CERTIFICATION
1 Murphy v. Kenneth Cole Prods,
2 40 Cal. 4th 1094 14
3 Payton v. CSI Electrical Contractors, Inc.,
27 Cal. App. 5th 832, 846 (2018) 14
4
^ Pena v. Taylor Farms Pacific, Inc.,
305 F.R.D. 197 (E.D. Cal. 2015) 15
6 Silva V. AvalonBay Cmtys., Inc.,
7 2016 U.S. Dist. LEXIS 194105 18
8
Soderstedtv. CBIZS. Cal, LLC,
9 197 Cal. App. 4th 133 (2011) 3, 18
^ ^ Van de Kamp v. Bank ofAm.,
11 204 Cal. App. 3d 819 (1988) 18
12 Vasquez v. First Student, Inc.,
2015 WL 1125643 (CD. Cal. Mar. 12,2015) 15
14 Washington Mutual v. Sup. Ct.,
24 Cal. 4th 906 (2001) 1, 16
15 Weaver v. Pasadena Tournament of Roses,
16 32 Cal. 2d 833.... '. 18
17
STATUTES
18
19 Cal. Code Civ. Proc. § 340 14
20 Cal. Code Civ. Proc. § 2025.430 20
21 Cal. Lab. Code § 226... 14
22
Cal. Lab. Code § 1174 14
23
Cal. Lab. Code § 2802 17
24
25
26
27
28
IV
DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR CLASS CERTIFICATION
1 GLOSSARY
2
The following evidence citations are used throughout this Opposition to PlaintifPs Motion
3
for Class Certification:
4
Citation Reference
5
Aguilar Lara Attempted deposition of Veronica Aguilar Lara, attached as Tab 9
6 to Defendant's Opposition to PlaintifPs Motion for Class
7 Certificationfiledherewith
8 Allen Excerpts from the deposition of Jalin Allen, attached as Tab 10 to
Defendant's Opposition to PlaintifPs Motion for Class Certification
9 filed herewith
10 Anderson Declaration of Ted Anderson, attached as Tab 2 to Defendant's
Opposition to PlaintifPs Motion for Class Certification filed
11 herewith
12
Attiya Excerpts from the deposition of Michele Attiya, attached as Tab 11
13 to Defendant's Opposition to PlaintifPs Motion for Class
Certificationfiledherewith
14
Belle Excerpts from the deposition of Evyanne (Phelps) Belle attached as
15 Tab 12 to Defendant's Opposition to PlaintifPs Motion for Class
Certificationfiledherewith
16
17 Benson I Declaration of Lyndsey Benson in Support of Defendant's Motion
to Deny Class Certification dated Febmary 6,2019, attached as Tab
18 4 to Defendant's Opposition to PlaintifPs Motion for Class
Certificationfiledherewith
19
Benson II Declaration of Lyndsey Benson dated April 12, 2019, attached as
20 Tab 5 to Defendant's Opposition to PlaintifPs Motion for Class
21 Certificationfiledherewith
22 Capizzelli Excerptsfi-omthe deposition of Talia Capizzelli, attached as Tab 13
to Defendant's Opposition to PlaintifPs Motion for Class
23 Certificationfiledherewith
24 Chen Excerpts from the deposition of Lilian (Lily) Chen, attached as Tab
25 14 to Defendant's Opposition to PlaintifPs Motion for Class
Certificationfiledherewith
26
Drogin Excerpts from the deposition of Richard Drogin, attached as Tab 15
27 to Defendant's Opposition to PlaintifP s Motion for Class
Certificationfiledherewith
28
V
DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR CLASS CERTIFICATION
1
Citation Reference
2
Encinas I Declaration of Janice Encinas, attached as Tab 3 to Defendant's
3 Opposition to PlaintifPs Motion for Class Certification filed
herewith
4
A. Enriquez Attempted deposition of Anthony Enriquez, attached as Tab 16 to
5 Defendant's Opposition to PlaintifPs Motion for Class Certification
6 filed herewith
7 E. Enriquez Excerpts fi-om the deposition of Elizabeth (Liz) Enriquez, attached
as Tab 17 to Defendant's Opposition to PlaintifPs Motion for Class
8 Certificationfiledherewith
9 Gulachek Excerpts from the deposition of Joshua Gulachek, attached as Tab
18 to Defendant's Opposition to PlaintifPs Motion for Class
10
Certificationfiledherewith
11
Latz Excerpts from the deposition of Jordan Latz, attached as Tab 19 to
12 Defendant's Opposition to PlaintifPs Motion for Class Certification
filed herewith
13
Lopez Excerpts from the deposition of Ingrid Lopez, attached as Tab 20 to
14 Defendant's Opposition to PlaintifPs Motion for Class Certification
15 filed herewith
16 Mayer Excerpts from the deposition of Allison Mayer, attached as Tab 21
to Defendant's Opposition to PlaintifPs Motion for Class
17 Certificationfiledherewith
18 Molina I Declaration of Melissa Molina attached as Tab 6 to Defendant's
Opposition to PlaintifPs Motion for Class Certification filed
19 herewith
20
Molina II Excerpts from the deposition of Melisa Molina, attached as Tab 22
21 to Defendant's Opposition to Plaintiff' s Motion for Class
Certificationfiledherewith
22
Ritchey Declaration of Cindi Ritchey, attached as Tab 1 to Defendant's
23
Opposition to PlaintifPs Motion for Class Certification filed
24 herewith
25 Santiago Excerpts from the deposition of Nora Santiago, attached as Tab 23
to Defendant's Opposition to PlaintifPs Motion for Class
26 Certificationfiledherewith
27
28
. vi
DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR CLASS CERTIFICATION
1
' Citation ^ ••'i'X: Reference''; • •
2
Serrano Excerpts from the deposition of Catherine Serrano, attached as Tab
3 24 to Defendant's Opposition to Plaintiffs Motion for Class
Certificationfiledherewith
4
Tillmanns Declaration of Nora Tillmanns, attached as Tab 7 to Defendant's
5 Opposition to PlaintifPs Motion for Class Certification filed
6 herewith
7 Vazquez Excerpts from the deposition of Jose Vazquez, attached as Tab 25
to Defendant's Opposition to Plaintiffs Motion for Class
8 Certificationfiledherewith
9 Velazquez Excerpts from the deposition of Pedro (Peter) Velazquez, attached
as Tab 26 to Defendant's Opposition to PlaintifPs Motion for Class
10 Certificationfiledherewith
11
Waddell I Declaration of Fantasia Waddell attached as Tab 8 to Defendant's
12 Opposition to PlaintifPs Motion for Class Certification filed
herewith
13
Waddell D Excerpts from the deposition of Fantasia Waddell, attached as Tab
14 27 to Defendant's Opposition to Plaintiffs Motion for Class
15 Certificationfiledherewith
16
17
18
19
20
21
22
23
24
25
26
27
28
vn
DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR CLASS CERTIFICATION
1 I. INTRODUCTION
2 PlaintifF Evyarme Phelps asks the Court to certify a sprawling class (and seven subclasses)
3 encompassing all of Defendants' non-exempt retail employees, managers and non-managers
4 alike, who worked at any Job, at any of the over two dozen Steven Madden stores operating
5 across Califomia at any point in the last eight years. But Plaintiff, even with games, admittedly
6 false declarations, mischaracterized evidence and misstated law, fails to demonstrate that
7 common issues predominate any of her claims - that putative class members were subject to
8 common, unlawful polices or practices, such that her claims are subject to common adjudication.
9 To the.contrary, the only policies that PlaintifF identifies are lawful, and her own witnesses testify
10 to widely varying practices, making classwide determinations impossible. But that is hardly the
11 only deficiency in Plaintiffs Motion. As to many of her claims. Plaintiff fails to demonstrate that
12 an ascertainable class exists. As to others, she has failed to establish numerosity. And, throughout,
13 PlaintifF fails to demonstrate that either she or her counsel would be adequate class
14 representatives. This Court should deny Plaintiffs Motion in its entirety.
15 II. PLAINTIFF CANNOT SATISFY THE CLASS ACTION REQUIREMENTS
16 The party seeking certification bears the burden to establish an ascertainable class and a
17 well-defined community of interest among class members, and must present substantial evidence
18 that common issues predominate. Washington Mutual v. Sup. Ct., 24 Cal. 4th 906, 913 (2001);
19 Fireside Bank v. Sup. Ct., 40 Cal. 4th 1069, 1089 (2007). This means that "each member must not
20 be required to individually litigate numerous and substantial questions to determine his right to
21 recover following the class Judgment[.]" Lockheed Martin Corp. v. Sup. Ct., 29 Cal. 4th 1096,
22 1103-1104 (2003). PlaintifF must demonstrate that (1) common questions of law or fact
23 predominate; (2) her claims are typical of the class; and (3) she will adequately represent the
24 class. Fireside, 40 Cal. 4th at 1089. A "class action will not be permitted .. .where there are
25 diverse factual issues to be resolved, even though there may be common questions of law. AU v.
26 USA Cab Ltd., 176 Cal. App. 4th 1333,1347 (2009); see also Arenas v. El Torito Rests., Inc., 183
27 Cal. App. 4th 723, 732 (2010) ("[FJf a class action 'will splinter into individual trials,' common
28 questions do not predominate and litigation of the action in the class format is inappropriate.").
1
DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR CLASS CERTIFICATION
1 A. Individualized Issues Predominate in Plaintiffs Off-the-Clock Bag Check Claim
2 Plaintiffs "off-the-clock" bag check claim clearly is not suitable for class treatment.
3 Indeed, the only common evidence PlaintifF can point to is Steve Madden's lawful policy that
4 employees be clocked-in during bag checks. Benson I, Exs. D, E, F. Plaintiff produced no
5 evidence of a common classwide practice of conducting off-the-clock bag checks. The Court
6 would have to answer highly individual questions to assess whether an employee was subjected to
7 an off-the-clock bag check. These include:
• whether employees were in fact required to undergo bag checks, which could tum on
8 whether they chose to bring a bag to work {see, e.g., Capizzelli 174:1-4,159:17-18 (no
9 check if no bag); Chen 76:10-16 (same); Encinas I If 21)
• whether employees were required to wait to have bags checked and, if so, variability in
10 wait times and duration of bag checks {see, e.g., Gulachek 157:25-158:9 (did not make
employees wait for bag checks, and bag checks took two seconds); Capizzelli 173:17-22
^^ (never made an employee wait longer than 30 seconds for a bag check and took 10-30
j2 seconds to do a bag check); Allen 103:11-104:10 (waited 2-3 minutes for bag check if the
store was busy); Vazquez 147:10-13; 150:10-25 (didn't have to wait for bag checks which
13 took only "a second"); Phelps 102:11 -22 (between 5 to 15 minutes));
• individual manager practices regarding bag checks (Waddell IH 22; Velazquez 40:19-
14 41:15; Santiago 56:2-57:23); and
• whether bag checks were conducted on or off the clock (Allen 99:6-100:25 (off); Vazquez
15 147:4-6 (oflO; Latz 90:20-25 (on); Serrano 70:6-71:4, 72:6-17, 88:6-23 (on)).
16 There are simply no uniform, common answers to these questions, even employees working in
17 the same store experienced different bag check practices. Cf. Allen 99:6-9; 100:21-25 (did off-
18 the-clock bag checks) with Gulachek 152:1-7,21-25 (did on-the-clock bag checks).
19 PlaintifF attempts two other arguments to undermine the company's written on-the-clock
20 bag check policy. Both fail. First, she argues "it is not possible" for employees to undergo bag
21 checks before clocking out, but that position is contradicted by her ovm declarant and other
1")
putative class members. See Gulachek 153:11-24 (ensured employees were clocked in during bag
check); 160:1-3 (clocked out after bag check); Molina II 35:14-21 ("you can clock out at the front
register ... you get the bag check, and then you can clock out there at the register and then
24 "
25 leave."); Cheri 73:9-12 (employees do not clock out until after bag check); Capizzelli 57:16-24;
106:7-14 (on the clock bag checks). Second, PlaintifF argues employees would be in violation of
27
another company policy if they brought bags to the register to undergo an on-the-clock bag check.
28
° Mot. at 4. Plaintiffs strained interpretation ofthe policy is unsupported by evidence. As store
2
DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR CLASS CERTIFICATION
1 manager Melisa Molina testified, it is not a violation of that policy for an employee to present
2 their bag at the register for a bag check. Molina II 97:12-25. The policy simply prohibits
3 employees from storing belongings at the register. Id.; see also id. 73:20-74:7; Serrano 88:19-
4 89:19.
5 A. Plaintiffs Meal and Rest Period Claims Cannot Be Certified
6 Each of Plaintiff s proposed theories of liability for meal and rest break claims fails for
7 multiple, independent reasons.
^ 1. Plaintiff Has Not Demonstrated Any Certifiable Class Based on Steve
Madden's Written Policies.
9
Plaintiff points to two memos—one from 2010 and one from 2013—as evidence of
10
"facially unlawfiil" policies. Mot. at 5, 8. But she fails to provide evidence that these memos
11
were common to the class she seeks to represent. Nor does she provide evidence showing that
12
the language she terms "facially unlawful" resulted in violations of putative class members'
13
meal or rest breakrights,let alone show how those putative class members could be identified.
14
(a) Neither the 2010 nor the 2013 Memo Is A Uniform Unlawfiil Policy.
15
Contrary to PlaintifPs assertions, the mere existence of a company-wide policy does not
16
mandate class certification. The plaintiff must "present substantial evidence that proving both
17
the existence of [the employer's] uniform policies and practices and the alleged illegal effects of
18
[the employer's] conduct could be accomplished efficiently and manageably within a class
19
setting." Kizer v. Tristar Risk Mgmt., 13 Cal. App. 5th 830, 842 (Ct. App. 2017), as modified
20
(July 26,2017), rev. denied (Nov. 1,2017). Where uniform policies are applied differently to
21
different individuals, individualized inquiries are required. See, e.g., Soderstedt v. CBIZS. Cal,
22
LLC, 197 Cal. App. 4th 133,154 (2011) (afiPirming certification denial and holding that
23
existence of a uniform policy did not create common issue of fact where "the evidence showed
24
that the manner in which those policies and standards were implemented as to each [employee]
25
varied depending on multiple factors"); Koval v. Pac. Bell Tel Co., 232 Cal. App. 4th 1050,
26
1062-63 (2014) (denying certification of meal and rest break claims because, "while the written
27
[policies] themselves arguably constituted articulable companywide policies, the manner in
28
• 3
DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR CLASS CERTIFICATION
1 which the policies were implemented was anything but uniform").
2 With regard to the 2010 memo, PlaintifF suggests that she can assert a classwide claim
3 based on a statement in the memo that rest breaks are provided for "every 4 hours worked in one
4 shift." Mot. at 8-9. PlaintifF merely attaches the memo as an exhibit to her attomey's declaration
5 as a document produced in discovery (Parker f l i ) , and presents no evidence to demonstrate that
6 the 2010 memo was in effect in any store at any time relevant to this lawsuit or that it resulted in
7 uniform, unlawful rest break practices. In fact, the memo pre-dates the Class Period, and
8 Plaintiff acknowledges that a 2013 memo clarified that employees are "entitled to 10 minutes of
9 paid rest break for shiftsfi-om3.5 to 6 hours, 20 minutes for shifts of more than 6 up to 10 hours,
10 30 minutes for shifts of more than 10 up to 14 hours, etc.," but does not propose any means to
11 address that change. Indeed, no one has testified that the 2010 memo was followed in their store
12 or described practices in which rest breaks were not provided for employees who worked shifts
13 lasting 3.5 to 4 hours or 6 to 8 hours.' This includes people employed in 2011, 2012, and 2013,
14 before the 2013 memo eliminated the language to which Plaintiff objects. To the contrary, the
15 evidence demonstrates variation in the rest break practices from store to store. See Madden Mot.
16 to Deny Cert, at 15-16. For example, Melisa Molina, an employee since 2010, testified that
17 employees in her store who work less than 5 hours are provided a 10-minute rest break and those
18 who work 8 hours are provided two 10-minute breaks. Molina 11| 9-10, 17, 19; Molina II 30:6-
19 7, 63:23-64:12; 71:22-72:5. Lily Chen, employed since 2012, explained that employees get a
20 first rest break if they work over two hours and a second rest break "[i]f they take a lunch." Chen
21 102:12-23,106:22-107:1. Allison Mayer, employedfi-om2010 to 2012, testified that employees
22 were permitted afirstrest break if they "worked more than three and a half hours in a shift" and
23 a second rest break if they ">yorked more than six hours in a shift." Mayer 20:3-15, 69:18-19,
24 117:9-16; see also Attiya 20:12-24, 76:25-77:25.
25 This case is nothing like the Brinker and Alberts cases on which Plaintiff relies. There,
26 ,
' Plaintiffs declarants asserted that they were "not permitted to take two 10-minute unintermpted
27 rest breaks for every four hours [they] worked." Allen 18; Gulacheck 16. But the declarants who
appeared for their depositions disavowed those statements, and admitted that the policy in their
2g store was to provide afirstrest break after no more than 3.5 hours and a second rest break after no
more than 6. See, e.g, Allen 122:25-123:7; Gulachek 143:20-144:2; Vazquez 120:13-121:22.
4
DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR CLASS CERTIFICATION
1 the employers conceded that they had uniform rest break policies that did not provide afirstrest
2 break until an employee worked at least four hours or a second rest break until an employee
3 works at least eight hours. Here, the evidence shows widespread variation in rest break practices,
4 and no evidence at all from which the Court couldfindclasswide liability. Determining when
5 and whether the 2010 memo applied to an employee and whether that application triggered a
6 violation of rest break rights is an individualized inquiry that prevents certification.^
7 PlaintifF also argues unconvincingly that the 2010 and 2013 memos are evidence of a
8 facially unlawful "policy" of (1) failing to provide meal periods to employees who did not sign
9 meal waivers and worked 5 to 6 hours and (2) requiring employees to clock out for meal periods
10 even if they did not take them. Mot. at 5-6. She has no evidence that any such practices even
11 existed, much less that they were uniformly implemented in the manner she suggests.
12 Individualized inquiries predominate because meal break practices for shifts lasting between 5
13 and 6 hours vary widely. Latz 76:11-15, 132:1-5 (employees who have not waived meal get a
14 meal period for shifts over 5 hours; employees who have "don't get" a meal for 5.5 hour shifts,
15 but store manager schedules one anyway); Molina II 59:22-60:10 (employees who waive meal
16 periods still have option to take meal periods for shifts less than six hours, "but most... prefer
17 Just to get the rest break and work through"); Chen 76:22-77:15, 88:9-18 (employees who work
18 "over six hours" are entitled tofirstmeal period because everyone in store signed waiver).
19 Additionally, meal period waivers varied over time. Different employees sign different versions,
20 and some employees sign multiple versions. Benson I 10-12, Exs. L, M, & N; Waddell II 67-
21 68,151-52; E. Enriquez 148:6-14. Some employees choose not to sign waivers; at some stores,
22 everyone signs one. Latz 140:6-13.
23 Individualized issues likewise predominate with respect to the determination of whether
24 employees clocked out for meal periods they did not take in violation of Steve Madden's written
25 policies. Many putative class members testified that if they did not take a meal period, they did
26 ^ Plaintiffhas not alleged that she was denied rest breaks due to the 2010 memo. She "did not
recognize" the 2010 memo, and claims instead that she was not informed that she was "entitled to
27 rest breaks." Phelps 115:10-24; Phelps 110. This provides a separate and independent basis to
deny certification on this theory. Cara v, Procter & Gamble Co., 18 Cal. App. 4th 644, 663
28 (1993) ("The cases uniformly hold that a plaintiff seeking to maintain a class action must be a
member ofthe class he claims to represent.")
5 ,
DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR CLASS CERTIFICATION
1 not clock out for one and were automatically paid a meal period premium. See, e.g., Mayer
2 98:10-99:25. Evidence that some of Plaintiff s declarants occasionally worked through meal
3 periods that they had recorded does not establish a classwide practice.^
4 The expert's analysis of time records confirms this variability. Depending on the year,
5 employees who worked betweenfiveand six hours recorded a meal period anywhere from 21.1
6 to 6% ofthe time. Anderson, tbl. 5. Ofthe shifts for which an employee did not record a meal
7 period, meal premium was paid anywhere from 1.3 to 14.4% of the time (presumably depending
8 on whether they had or had not waived their break). Id. '* Rates of compliant meal periods for
9 shifts over 6 hours vary by store, position, and year as well. For example, shoe stylists did not
10 record afirstmeal period in 11.9% of shifts while lead stock associates only failed to record one
11 in 1.7% of shifts. Id., tbl. 2. During the Class Period, the rate of unrecordedfirstmeal periods in
12 some stores is 16.4%; in others it is only 0.7%. Id, tbl. 1. In 2011, the percentage of shifts
13 overall with potential meal violations was 1.9%. Id., app'x 1. In 2017, it was 3.6%. Id.
14 (b) PlaintiffAlso Fails To Show That a Subclass Based on the Application of
the 2010 or 2013 Memo is Sufficiently Numerous or Ascertainable.
15
Plaintiff asserts that because the discovery list included 2,129 employees, the "proposed
16
class is sufficiently numerous." Mot. at 16. That makes no sense. She makes no attempt to
17
quantify or identify which current or former employees worked at stores or under store managers
18
who were even aware of the 2010 and 2013 memos, let alone which employees were denied rest
19
periods under the 2010 memo or who were not provided with meal periods or falsely recorded
20
meal periods under the 2010 and 2013 memos.
21
Instead, she PlaintifF incorrectly suggests that Madden's time records can be used render
22
her policy-based meal and rest break claims manageable. But because employees' rest breaks are
23
24 ^ Declarants who appeared for their depositions admitted either that, contrary to their declarations,
they had always been able to take their meal periods or that when they did not take a meal period
25 to which they were entitled, they did not clock out and were paid a meal period premium.
* Plaintiffs expert failed to identify the percentage of shifts between 5 and 6 hours with recorded
26 meal breaks, and admitted that his analysis did not account for meal period waivers, explaining
that he had been instmcted that the waiver was "deficient." But Plaintiffs only criticism of the
27 meal period waivers is that a prior version required on-duty meal periods (Mot. at 6-7), a separate
issue that would not invalidate a meal period waiver for shifts between 5 and 6 hours. Plaintiff
28 offers no explanation for how the Court could identify which employees who did not take meal
periods for shifts between 5 and 6 hours did not sign waivers.
6
DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR CLASS CERTIFICATION
1 not recorded, time records say nothing about whether a rest break was or was not taken.
2 Similarly, the time records do not show whether or which version of a meal break waiver an
3 employee signed. Therefore, they cannot identify employees who were entitled to but did not
4 record meal periods during 5-6 hour shifts. And PlaintifPs theory that employees recorded meal
5 periods that they did not take is premised on inaccurate time records. Yet the time records
6 provide no evidence at all as to whether a recorded meal period was or was not taken. Plaintiff
7 has not met her burden to show that her facial invalidity claims are ascertainable or even
8 attempted to estimate the number of employees with the right to recover under then.^
9 2. Plaintiff Cannot Show a Classwide Practice of Requiring On-Duty Meals.
10 Plaintiff bases her on-duty meal period claim on an earlier version of Steve Madden's
11 meal period waiver, that she admits is no longer in use, not an on duty meal period agreement.
12 But this has not stopped her from asking the Court to certify a class based on Steve Madden's on
13 duty meal period policy. Mot. at 6, n.5. As an initial matter. Plaintiff is not an adequate
14 representative for this claim as she never signed any meal period waiver. Phelps 113:2-20; see
15 Caro, 18 Cal. App. 4th at 663.
16 Plaintiff interprets the following two sentences in the meal period waiver as requiring
17 employees working over six hours to take an on-duty meal period:
18 My signature below indicates that I am waiving my meal period and I acknowledge that
any time worked in excess of six hours will require a meal period. I also acknowledge that
19 this meal period shall be considered an "on duty" meal period that is counted as hours
worked, which must be compensated at my regular rate of pay.
Mot. at 6. At best, this language is ambiguous as to whether the "on duty" meal period is the one
that is being waived or the one that is provided when an employee works in excess of six hours.
But Plaintiffs on duty meal break claim does not tum on the proper interpretation of the meal
period waiver. Rather, it tums on whether the meal period waiver as applied in Steve Madden's
stores violated employees' rights.
Unlike the Abdullah and Faulkinbury cases on which Plaintiff relies, here there was no
uniform policy requiring employees to take on duty meal periods and thus no corimion practice
questions through sampling also fails.
DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR CLASS CERTIFICATION
1 that lends itself to classwide adjudication. Plaintiffhas not pointed to any evidence that any
2 employees ever took on duty meal periods for which they were not paid a meal period premium,
3 let alone that it was a uniform or common practice to do so. Instead, the testimony from putative
4 class members and Steve Madden corporate representatives shows that in most cases, employees
5 were fi-ee to leave their stores during their meal periods—a practice antithetical to the concept of
6 an on-duty meal period—and that actual practices regarding meal periods varied. Hare Dep.
7 186:22-24 (employees allowed to leave); Mayer 114:13-15 (always left); Serrano 102:7-17
8 (some employees leave store, others stay in break room and "watch Netflix"). Employees who
9 remained in the store were typically expected to refrain from performing any work during those
10 breaks. Molina II 67:4-13, 69:6-20, 79:23-80:3; Chen 97:16-21.^ On those occasions where
11 employees were required to remain in the store and on duty during a meal period, the meal
12 period was treated as a missed meal period and they were paid a meal period premium. Mayer
13 35:14-36:9, 98:18-99:19 (told to remain in store for lunch break only on certain Sundays when
14 store was understaffed and told not to record a meal period so she would receive a premium);
15 Allen 20:6-21:10. Identification of when or why an employees took an on duty meal period
16 would require the type of individualized inquiries fatal to certification.
17 3. Plaintiff Is Not An Adequate Class Representative For Her Manager On-Duty
Claim, Which Is Not Certifiable In Any Event.
18 Plaintiff also seeks to bring a class claim based on a theory of liability that putative class
19 members are required to "miss, take late, shorten, and/or intermpt their meal and rest breaks" to
20 comply with non-break policies. Mot. at 9-10. This theory of liability is really three separate
21 theories of liability based on three sets of policies and practices: "on duty manager" policies and
22 practices, bag check policies and practices, and customer service policies and practices. Steve
23 Madden addresses the first of these theories here, and the other two in the following section.
24 Plaintiffs "manager on duty" theory seems to be based on a claim that Steve Madden
25 has a policy requiring at least one manager to be on duty at all times, which prevents managers
26
firom taking their meal and rest breaks. Plaintiff, however, admits that she was never a manager
27
^ To the extent Plaintiff suggests that a meal period that is "intermpted" is an on-duty rneal
28 period, this claim collapses into her claim based on "short, late, and intermpted" breaks, and fails
for the reasons set forth below in section I.A.4.
8
DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR CLASS CERTIFICATION
1 in any of Steve Madden's Califomia stores. Phelps ^ 3. Thus, no manager-on-duty policy
2 applied to her during the relevant period or prevented her from taking the meal and rest breaks to
3 which she was entitled. Nor does she suggest that it did. See Mot. at 18-19. Because she was
4 never subject to the alleged classwide policy, her experiences are not "typical" of the class she
5 seeks to represent. As a result, she cannot serve as class representative.' , .
6 But even if Plaintiff were an adequate class representative. Plaintiff cannot show that
7 common issues will predominate over individualized ones. While some managers confirmed that
8 a manager on duty policy exists in their stores, their testimony demonstrated significant variations
9 both in both what that policy requires and whether application causes them to experience missed
10 or denied meal and rest breaks. For example, some managers testified that the policy prevented
11 them from taking duty-free meal breaks when they were the only manager in the store, but not
12 rest breaks. Mayer 117:17-118:8; Chen 91:2-14. Others testified that the policy applied to meal
13 and rest breaks alike. Allen 190:3-20. Still others suggested the policy applied only when their
14 store was open to the public. Latz 48:24-49:15, 92:17-23 (typically takes first rest break before
15 store opens when he is only employee working because "it's easy").
16 There is also wide variation in whether whatever version of the policy was in effect at
17 their store impacted their ability to take compliant meal and rest breaks. For example, during
18 shifts when there are periods of time only one manager is on duty, the opening and closing
19 managers are often scheduled so that they overlap in such a manner as to permit each manager to
20 take duty-firee breaks. See Santiago 45:1-10 (closing manager takes lunch break before opening
21 manager scheduled to leave). And even for shifts where there is only one manager ever in the
22 store, there are variations as to whether that circumstance prevented the managerfi-omtaking
23 duty-fi-ee breaks.* Mayer 117:17-118:8 (sometimes could, but sometimes could not).
24 ,
Indeed, Plaintiff never addresses the issue of whether her experiences are typical of the class of
25 managers allegedly denied breaks due to the manager on duty policy. The single paragraph
addressing typicality fails to address the manager on duty theory at all. Mot. at 18-19. It appears
26 from her declaration that her counsel may intend to argue that because she was a mmiager when
she worked in Illinois, she is an adequate representative for the claims of managers in Califomia.
27 5ee Phelps 110. Any such argument would be beyond frivolous.
* Moreover, managers who reported isolated instances in which they were unable to take duty free
28 mta\ breaks did not record a meal period and were paid a meal period premium. It is not clear
what classwide damages remain to be recovered. See Kaanaana v. Barrett Bus. Servs., Inc., 29
9
DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR CLASS CERTIFICATION
1 The evidence thus shows that—far from a common practice and policy of denying
2 managers duty-free breaks—^there are varying circumstances in different stores with different
3 practices. Plaintiff does not identify any common proof that would allow the Court to adjudicate
4 her "manager on duty" claim on a class basis; she cannot even show common proof as to what
5 the manager on duty policy was or a means identify the current and former employees with on
6 duty manager claims. She has failed to meet her burdens to demonstrate that common issues
7 predominate and that the subclass is ascertainable and sufficiently numerous.
8 4. Individualized Issues Overwhelm Plaintiffs Claims That Bag Check and
Customer Service Practices Cause Break Violations.
9
Plaintiffs remaining theories of liability for short, late, missed and intermpted breaks
10
rely on Steve Madden's bag check and customer service practices. But Plaintiffhas no evidence
11
that these practices resulted in a common practice of denying compliant meal or rest breaks.
12
Plaintiffs proffered evidence raises individualized issues, not common questions of law or fact.
13
With respect to bag check policies, the only evidence of common practices is Steve
14
Madden's written bag check policy, which provides that bag checks—to the extent that one is
15 required—be conducted on the clock. Benson I Exs. E «& F. In most cases, employees are in
16 charge of making sure they take complete breaks. Velazquez 59:7-23. While many store
17 managers confirmed that they conduct bag checks on the clock, before employees clock out for
18 their meal period or begin their rest break, (Chen 72:19-23; Capizzelli 42:11-20) the trier of fact
19 will fact numerous questions unique to the individual and shift at issue to determine whether the
20 bag check policy prevented an employee from taking a full meal or rest break. Those questions
21 include, for example:
22 • Did the employee chose to stay in the store during his or her break (in which case, there
was no bag check at all)?
23 • If the employee left the store, did he or she choose to take a bag with him or her?
• If the employee did leave the store and did bring a bag, did the employee clock out for
24 meal period or begin timing rest period before or after having bag checked?
• If the employee clocked out or began timing his or her break before the bag check, was
25 their break nonetheless at least 30 minutes or 10 minutes, respectively?
26 None of these questions are capable of a classwide resolution. Indeed, the court in Lao v. H&M
27 Hennes & Mauritz, L.P. denied certification in almost identical circumstances for these very
28 Cal. App. 5th 778, 802-08 (2018).
10
DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR CLASS CERTIFICATION
1
1 reasons. 2018 WL 3753708, at *6 (N.D. Cal. Aug. 8, 2018).
2 Plaintiffs suggestion that Steve Madden's "prioritization" of customer service results in
3 meal and rest break violations fares no better. PlaintifF points to language in the 2010 and 2012
4 Handbooks asking employees to "cooperate with your supervisor in taking meal breaks at a time
5 when there will be no interference with the business." Mot. at 10. The policy says nothing about
6 sacrificing meal breaks in the name of customer service and does not even mention rest breaks.
7 And the prior paragraph expressly instructs employees to "take all your meal ahd break periods"
8 and "take your full allotment of time for your meal(s) and break(s)," and not to "perform any
9 work during these periods." Benson I Exs. A (at Madden 0032) & B (at Madden 0086).
10 The evidence does not support a common practice of meal and rest break violations
11 resulting from Defendant's customer service policy. PlaintifF suggests that there were times class
12 members shortened, delayed, intermpted, or missed meal breaks to "provide customer service on
13 demand" (Mot. at 10-11) but Plaintiffs own declarants testified that customer service did not
14 tmmp meal or rest breaks. Allen 130:5-11; Velazquez 107:24-108:9; Waddell II225-26. Some
15 store managers explained that an employee might be asked to delay a meal or rest period when
16 the store was busy, but that those breaks are not denied or shortened. Gulachek 51:21 -52:10;
17 Vazquez 118:21-119:3. PlaintifF offers no evidence to suggest that such delays commonly
18 trigger meal and rest break violations. And on many days and during many shifts, employees are
19 able to take their breaks at their scheduled time or at a time of their choice. Velazquez 53:25-
20 54:19; Belle 131:9-16. Evidence that some employees intermpted their breaks on some
21 occasions is not enough to show common evidence of a violation where there is also evidence:
• putative class members were usually free to leave the store for all their breaks, and
Preview
1 JONES DAY MICHAEL J. GRAY (pro hac vice) 2 mjgray@Jonesday.com JENNIFER PLAGMAN (pro hac vice) 3 jpIagman@jonesday.com 77 West Wacker APR 12 2019 4 Chicago, Illinois 60601 Telephone: (312) 782-3939 5 Facsimile: (312) 782-8585 6 CINDI L. RITCHEY, SBN 216899 critchey@Jonesday.com 7 4655 Executive Drive, Ste. 1500 San Diego, Califomia 92121 8 Telephone: (858)314-1195 Facsimile: (844) 345-3178 9 KELSEY ISRAEL-TRUMMEL, SBN 282272 10 kitrummel@Jonesday.com 555 Califomia St., 26th Floor 11 San Francisco, Califomia 94104 Telephone: (415) 875-5831 12 Facsimile: (415) 875-5700 13 Attomeys for Defendant STEVEN MADDEN RETAIL, INC. 14 15 SUPERIOR COURT OF THE STATE OF CALIFORNIA 16 COUNTY OF SACRAMENTO 17 18 EVYANNE PHELPS, individually and on CASE NO. 34-2015-00175330-CU-OE-GDS behalf of other members of the general public 19 similarly situated. CLASS ACTION 20 Plaintiff, DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR CLASS 21 V. CERTIFICATION 22 STEVEN MADDEN RETAIL, INC. an DATE: June 7,2019 unknown business entity; and DOES 1 TIME: 1:30 pm. 23 through 100, inclusive, DEPT: 35 24 Defendants. Complaint Filed: Febmary 18,2015 25 26 27 28 DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR CLASS CERTIFICATION 1 TABLE OF CONTENTS ^ Page 3 L INTRODUCTION 1 4 II. PLAINTIFF CANNOT SATISFY THE CLASS ACTION REQUIREMENTS 1 5 A. Individualized Issues Predominate in PlaintifPs Off-the-Clock Bag Check Claim 2 6 B. PlaintifPs Meal and Rest Period Claims Cannot Be Certified 3 7 .. 1. Plaintiff Has Not Demonstrated Any Certifiable Class Based on 8 Steve Madden's Written Policies 3 9 2. Plaintiff Cannot Show a Classwide Practice of Requiring On-Duty Meals 7 10 3. Plaintiff Is Not An Adequate Class Representative For Her 11 Manager On-Duty Claim, Which Is Not Certifiable In Any Event 8 12 4. Individualized Issues Overwhelm PlaintifPs Claims That Bag Check and Customer Service Practices Cause Break Violations 10 13 5. Plaintiff Cannot Assert A Class Claim Based On An Alleged 14 Failure to Pay Adequate Meal or Rest Period Premiums 12 15 C. PlaintifPs Wage Statement And Recordkeeping Claims Cannot Be Certified 14 16 D. PlaintifPs Expense Reimbursement Claim Cannot Be Certified 15 17 E. PlaintifTs Derivative Claims Are Equally,Flawed And A Class Action is 18 Not Superior .; 18 19 F. Plaintiffis Not an Adequate Representative 18 20 G. PlaintifPs Counsel Is Not Adequate 19 21 22 23 24 25 26 27 28 1 DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR CLASS CERTIFICATION 1 TABLE OF AUTHORITIES 2 Page 3 CASES 4 AU V. USA Cab Ltd., 5 176 Cal. App. 4th 1333 (2009) 1 6 Arenas v. El Torito Rests., Inc., ^ 183 Cal. App. 4th 723 (2010) ...1 g Basurco v. 21st Century Ins. Co., 108 Cal. App. 4th 110 (2003) 17 9 Bomersheim v. L.A. Gay & Lesbian Ctr., 10 184 Cal. App. 4th 1471 (2010) 17 11 Brewer v. Gen. Nutrition Corp., 12 2014 WL 5877695 (N.D. Cal. Nov. 12, 2014) 12 13 Cal Pak Delivery, Inc. v. United Parcel Service, Inc., 14 52 Cal. App. 4th 1 (1997) 19 15 Campbell v. Best Buy Stores, L.P., 16 2013 WL 5302217 (CD. Cal. Sept. 20, 2013) , 12 17 Carov. Procter & Gamble Co., 18 Cal. App. 4th 644 (1993) 5, 7 18 J^ City ofSan Jose v. Sup. Ct., 12 Cal. 3d 447(1974) ; 18 20 Clark V. Superior Court, 21 50 Cal. 4th 605 (2010).: 13 22 Duran v. US Bank National Ass 'n, 23 59 Cal. 4th 1 (2014) 18 24 Evans v. lAC/Interactive Corp., 25 244 F.R.D. 568 (CD. Cal. 2007) 19,20 26 Fireside Bank V. Sup. Ct., 2^ 40 Cal. 4th 1069 (2007) 1 28 n DEFENDANT'S OPPOSFFION TO PLAINTIFF'S MOTION FOR CLASS CERTIFICATION 1 Frausto v. Bank ofAm., 2018 WL 3659251 (N.D. Cal. Aug. 2, 2018).... 14 2 3 Gattuso V. Harte-Hanks Shoppers, Inc., 42 Cal. 4th 554 (2007) , 17 4 Hale V. Sharp Healthcare, 5 232 Cal. App. 4th 50 (2014) ; 14 6 Howard v. Gap, Inc., 2009 WL 3571984 (N.D. Cal. Oct. 29, 2009)...; 16 8 Jimenez v. Domino's Pizza, Inc., 9 238 F.R.D. 241 (CD. Cal. 2006) 19 10 Jones V. Farmers Ins. Exch., 11 221 Cal. App. 4th 986 (2013) ......18 12 Kaanaana v. Barrett Bus. Servs., Inc., 29 Cal. App. 5th 778 (2018) .......10 14 Kingsepp v. Wesleyan Univ., 142 F.R.D. 597 (S.D.N.Y. 1992) 19 15 Kirby v. Immoos Fire Prot., Inc., 16 53 Cal. 4th 1244 (2012) .....13 17 Kizer V. Tristar Risk Mgmt., 13 Cal. App. 5th 830 (Ct. App. 2017) 3 18 ^^ Koval V. Pac. Bell Tel. Co., 20 232 Cal. App. 4th 1050 (2014) ...3 21 Lao V. H&MHennes & Mauritz, L.P., 22 2018 WL 3753708 (N.D. Cal. Aug. 8,2018) .11 23 Lockheed Martin Corp. v. Sup. Ct., 29 Cal. 4th 1096 (2003) 1 24 2j Madrigal v. Tommy Bahama Group, Inc., 2011 WL 10511339 (CD. Cal. June 27, 2011) 16 26 Morgan v. Wet Seal, Inc., 210 Cal. App. 4th 1341 (2012) , 16 28 in DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR CLASS CERTIFICATION 1 Murphy v. Kenneth Cole Prods, 2 40 Cal. 4th 1094 14 3 Payton v. CSI Electrical Contractors, Inc., 27 Cal. App. 5th 832, 846 (2018) 14 4 ^ Pena v. Taylor Farms Pacific, Inc., 305 F.R.D. 197 (E.D. Cal. 2015) 15 6 Silva V. AvalonBay Cmtys., Inc., 7 2016 U.S. Dist. LEXIS 194105 18 8 Soderstedtv. CBIZS. Cal, LLC, 9 197 Cal. App. 4th 133 (2011) 3, 18 ^ ^ Van de Kamp v. Bank ofAm., 11 204 Cal. App. 3d 819 (1988) 18 12 Vasquez v. First Student, Inc., 2015 WL 1125643 (CD. Cal. Mar. 12,2015) 15 14 Washington Mutual v. Sup. Ct., 24 Cal. 4th 906 (2001) 1, 16 15 Weaver v. Pasadena Tournament of Roses, 16 32 Cal. 2d 833.... '. 18 17 STATUTES 18 19 Cal. Code Civ. Proc. § 340 14 20 Cal. Code Civ. Proc. § 2025.430 20 21 Cal. Lab. Code § 226... 14 22 Cal. Lab. Code § 1174 14 23 Cal. Lab. Code § 2802 17 24 25 26 27 28 IV DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR CLASS CERTIFICATION 1 GLOSSARY 2 The following evidence citations are used throughout this Opposition to PlaintifPs Motion 3 for Class Certification: 4 Citation Reference 5 Aguilar Lara Attempted deposition of Veronica Aguilar Lara, attached as Tab 9 6 to Defendant's Opposition to PlaintifPs Motion for Class 7 Certificationfiledherewith 8 Allen Excerpts from the deposition of Jalin Allen, attached as Tab 10 to Defendant's Opposition to PlaintifPs Motion for Class Certification 9 filed herewith 10 Anderson Declaration of Ted Anderson, attached as Tab 2 to Defendant's Opposition to PlaintifPs Motion for Class Certification filed 11 herewith 12 Attiya Excerpts from the deposition of Michele Attiya, attached as Tab 11 13 to Defendant's Opposition to PlaintifPs Motion for Class Certificationfiledherewith 14 Belle Excerpts from the deposition of Evyanne (Phelps) Belle attached as 15 Tab 12 to Defendant's Opposition to PlaintifPs Motion for Class Certificationfiledherewith 16 17 Benson I Declaration of Lyndsey Benson in Support of Defendant's Motion to Deny Class Certification dated Febmary 6,2019, attached as Tab 18 4 to Defendant's Opposition to PlaintifPs Motion for Class Certificationfiledherewith 19 Benson II Declaration of Lyndsey Benson dated April 12, 2019, attached as 20 Tab 5 to Defendant's Opposition to PlaintifPs Motion for Class 21 Certificationfiledherewith 22 Capizzelli Excerptsfi-omthe deposition of Talia Capizzelli, attached as Tab 13 to Defendant's Opposition to PlaintifPs Motion for Class 23 Certificationfiledherewith 24 Chen Excerpts from the deposition of Lilian (Lily) Chen, attached as Tab 25 14 to Defendant's Opposition to PlaintifPs Motion for Class Certificationfiledherewith 26 Drogin Excerpts from the deposition of Richard Drogin, attached as Tab 15 27 to Defendant's Opposition to PlaintifP s Motion for Class Certificationfiledherewith 28 V DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR CLASS CERTIFICATION 1 Citation Reference 2 Encinas I Declaration of Janice Encinas, attached as Tab 3 to Defendant's 3 Opposition to PlaintifPs Motion for Class Certification filed herewith 4 A. Enriquez Attempted deposition of Anthony Enriquez, attached as Tab 16 to 5 Defendant's Opposition to PlaintifPs Motion for Class Certification 6 filed herewith 7 E. Enriquez Excerpts fi-om the deposition of Elizabeth (Liz) Enriquez, attached as Tab 17 to Defendant's Opposition to PlaintifPs Motion for Class 8 Certificationfiledherewith 9 Gulachek Excerpts from the deposition of Joshua Gulachek, attached as Tab 18 to Defendant's Opposition to PlaintifPs Motion for Class 10 Certificationfiledherewith 11 Latz Excerpts from the deposition of Jordan Latz, attached as Tab 19 to 12 Defendant's Opposition to PlaintifPs Motion for Class Certification filed herewith 13 Lopez Excerpts from the deposition of Ingrid Lopez, attached as Tab 20 to 14 Defendant's Opposition to PlaintifPs Motion for Class Certification 15 filed herewith 16 Mayer Excerpts from the deposition of Allison Mayer, attached as Tab 21 to Defendant's Opposition to PlaintifPs Motion for Class 17 Certificationfiledherewith 18 Molina I Declaration of Melissa Molina attached as Tab 6 to Defendant's Opposition to PlaintifPs Motion for Class Certification filed 19 herewith 20 Molina II Excerpts from the deposition of Melisa Molina, attached as Tab 22 21 to Defendant's Opposition to Plaintiff' s Motion for Class Certificationfiledherewith 22 Ritchey Declaration of Cindi Ritchey, attached as Tab 1 to Defendant's 23 Opposition to PlaintifPs Motion for Class Certification filed 24 herewith 25 Santiago Excerpts from the deposition of Nora Santiago, attached as Tab 23 to Defendant's Opposition to PlaintifPs Motion for Class 26 Certificationfiledherewith 27 28 . vi DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR CLASS CERTIFICATION 1 ' Citation ^ ••'i'X: Reference''; • • 2 Serrano Excerpts from the deposition of Catherine Serrano, attached as Tab 3 24 to Defendant's Opposition to Plaintiffs Motion for Class Certificationfiledherewith 4 Tillmanns Declaration of Nora Tillmanns, attached as Tab 7 to Defendant's 5 Opposition to PlaintifPs Motion for Class Certification filed 6 herewith 7 Vazquez Excerpts from the deposition of Jose Vazquez, attached as Tab 25 to Defendant's Opposition to Plaintiffs Motion for Class 8 Certificationfiledherewith 9 Velazquez Excerpts from the deposition of Pedro (Peter) Velazquez, attached as Tab 26 to Defendant's Opposition to PlaintifPs Motion for Class 10 Certificationfiledherewith 11 Waddell I Declaration of Fantasia Waddell attached as Tab 8 to Defendant's 12 Opposition to PlaintifPs Motion for Class Certification filed herewith 13 Waddell D Excerpts from the deposition of Fantasia Waddell, attached as Tab 14 27 to Defendant's Opposition to Plaintiffs Motion for Class 15 Certificationfiledherewith 16 17 18 19 20 21 22 23 24 25 26 27 28 vn DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR CLASS CERTIFICATION 1 I. INTRODUCTION 2 PlaintifF Evyarme Phelps asks the Court to certify a sprawling class (and seven subclasses) 3 encompassing all of Defendants' non-exempt retail employees, managers and non-managers 4 alike, who worked at any Job, at any of the over two dozen Steven Madden stores operating 5 across Califomia at any point in the last eight years. But Plaintiff, even with games, admittedly 6 false declarations, mischaracterized evidence and misstated law, fails to demonstrate that 7 common issues predominate any of her claims - that putative class members were subject to 8 common, unlawful polices or practices, such that her claims are subject to common adjudication. 9 To the.contrary, the only policies that PlaintifF identifies are lawful, and her own witnesses testify 10 to widely varying practices, making classwide determinations impossible. But that is hardly the 11 only deficiency in Plaintiffs Motion. As to many of her claims. Plaintiff fails to demonstrate that 12 an ascertainable class exists. As to others, she has failed to establish numerosity. And, throughout, 13 PlaintifF fails to demonstrate that either she or her counsel would be adequate class 14 representatives. This Court should deny Plaintiffs Motion in its entirety. 15 II. PLAINTIFF CANNOT SATISFY THE CLASS ACTION REQUIREMENTS 16 The party seeking certification bears the burden to establish an ascertainable class and a 17 well-defined community of interest among class members, and must present substantial evidence 18 that common issues predominate. Washington Mutual v. Sup. Ct., 24 Cal. 4th 906, 913 (2001); 19 Fireside Bank v. Sup. Ct., 40 Cal. 4th 1069, 1089 (2007). This means that "each member must not 20 be required to individually litigate numerous and substantial questions to determine his right to 21 recover following the class Judgment[.]" Lockheed Martin Corp. v. Sup. Ct., 29 Cal. 4th 1096, 22 1103-1104 (2003). PlaintifF must demonstrate that (1) common questions of law or fact 23 predominate; (2) her claims are typical of the class; and (3) she will adequately represent the 24 class. Fireside, 40 Cal. 4th at 1089. A "class action will not be permitted .. .where there are 25 diverse factual issues to be resolved, even though there may be common questions of law. AU v. 26 USA Cab Ltd., 176 Cal. App. 4th 1333,1347 (2009); see also Arenas v. El Torito Rests., Inc., 183 27 Cal. App. 4th 723, 732 (2010) ("[FJf a class action 'will splinter into individual trials,' common 28 questions do not predominate and litigation of the action in the class format is inappropriate."). 1 DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR CLASS CERTIFICATION 1 A. Individualized Issues Predominate in Plaintiffs Off-the-Clock Bag Check Claim 2 Plaintiffs "off-the-clock" bag check claim clearly is not suitable for class treatment. 3 Indeed, the only common evidence PlaintifF can point to is Steve Madden's lawful policy that 4 employees be clocked-in during bag checks. Benson I, Exs. D, E, F. Plaintiff produced no 5 evidence of a common classwide practice of conducting off-the-clock bag checks. The Court 6 would have to answer highly individual questions to assess whether an employee was subjected to 7 an off-the-clock bag check. These include: • whether employees were in fact required to undergo bag checks, which could tum on 8 whether they chose to bring a bag to work {see, e.g., Capizzelli 174:1-4,159:17-18 (no 9 check if no bag); Chen 76:10-16 (same); Encinas I If 21) • whether employees were required to wait to have bags checked and, if so, variability in 10 wait times and duration of bag checks {see, e.g., Gulachek 157:25-158:9 (did not make employees wait for bag checks, and bag checks took two seconds); Capizzelli 173:17-22 ^^ (never made an employee wait longer than 30 seconds for a bag check and took 10-30 j2 seconds to do a bag check); Allen 103:11-104:10 (waited 2-3 minutes for bag check if the store was busy); Vazquez 147:10-13; 150:10-25 (didn't have to wait for bag checks which 13 took only "a second"); Phelps 102:11 -22 (between 5 to 15 minutes)); • individual manager practices regarding bag checks (Waddell IH 22; Velazquez 40:19- 14 41:15; Santiago 56:2-57:23); and • whether bag checks were conducted on or off the clock (Allen 99:6-100:25 (off); Vazquez 15 147:4-6 (oflO; Latz 90:20-25 (on); Serrano 70:6-71:4, 72:6-17, 88:6-23 (on)). 16 There are simply no uniform, common answers to these questions, even employees working in 17 the same store experienced different bag check practices. Cf. Allen 99:6-9; 100:21-25 (did off- 18 the-clock bag checks) with Gulachek 152:1-7,21-25 (did on-the-clock bag checks). 19 PlaintifF attempts two other arguments to undermine the company's written on-the-clock 20 bag check policy. Both fail. First, she argues "it is not possible" for employees to undergo bag 21 checks before clocking out, but that position is contradicted by her ovm declarant and other 1") putative class members. See Gulachek 153:11-24 (ensured employees were clocked in during bag check); 160:1-3 (clocked out after bag check); Molina II 35:14-21 ("you can clock out at the front register ... you get the bag check, and then you can clock out there at the register and then 24 " 25 leave."); Cheri 73:9-12 (employees do not clock out until after bag check); Capizzelli 57:16-24; 106:7-14 (on the clock bag checks). Second, PlaintifF argues employees would be in violation of 27 another company policy if they brought bags to the register to undergo an on-the-clock bag check. 28 ° Mot. at 4. Plaintiffs strained interpretation ofthe policy is unsupported by evidence. As store 2 DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR CLASS CERTIFICATION 1 manager Melisa Molina testified, it is not a violation of that policy for an employee to present 2 their bag at the register for a bag check. Molina II 97:12-25. The policy simply prohibits 3 employees from storing belongings at the register. Id.; see also id. 73:20-74:7; Serrano 88:19- 4 89:19. 5 A. Plaintiffs Meal and Rest Period Claims Cannot Be Certified 6 Each of Plaintiff s proposed theories of liability for meal and rest break claims fails for 7 multiple, independent reasons. ^ 1. Plaintiff Has Not Demonstrated Any Certifiable Class Based on Steve Madden's Written Policies. 9 Plaintiff points to two memos—one from 2010 and one from 2013—as evidence of 10 "facially unlawfiil" policies. Mot. at 5, 8. But she fails to provide evidence that these memos 11 were common to the class she seeks to represent. Nor does she provide evidence showing that 12 the language she terms "facially unlawful" resulted in violations of putative class members' 13 meal or rest breakrights,let alone show how those putative class members could be identified. 14 (a) Neither the 2010 nor the 2013 Memo Is A Uniform Unlawfiil Policy. 15 Contrary to PlaintifPs assertions, the mere existence of a company-wide policy does not 16 mandate class certification. The plaintiff must "present substantial evidence that proving both 17 the existence of [the employer's] uniform policies and practices and the alleged illegal effects of 18 [the employer's] conduct could be accomplished efficiently and manageably within a class 19 setting." Kizer v. Tristar Risk Mgmt., 13 Cal. App. 5th 830, 842 (Ct. App. 2017), as modified 20 (July 26,2017), rev. denied (Nov. 1,2017). Where uniform policies are applied differently to 21 different individuals, individualized inquiries are required. See, e.g., Soderstedt v. CBIZS. Cal, 22 LLC, 197 Cal. App. 4th 133,154 (2011) (afiPirming certification denial and holding that 23 existence of a uniform policy did not create common issue of fact where "the evidence showed 24 that the manner in which those policies and standards were implemented as to each [employee] 25 varied depending on multiple factors"); Koval v. Pac. Bell Tel Co., 232 Cal. App. 4th 1050, 26 1062-63 (2014) (denying certification of meal and rest break claims because, "while the written 27 [policies] themselves arguably constituted articulable companywide policies, the manner in 28 • 3 DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR CLASS CERTIFICATION 1 which the policies were implemented was anything but uniform"). 2 With regard to the 2010 memo, PlaintifF suggests that she can assert a classwide claim 3 based on a statement in the memo that rest breaks are provided for "every 4 hours worked in one 4 shift." Mot. at 8-9. PlaintifF merely attaches the memo as an exhibit to her attomey's declaration 5 as a document produced in discovery (Parker f l i ) , and presents no evidence to demonstrate that 6 the 2010 memo was in effect in any store at any time relevant to this lawsuit or that it resulted in 7 uniform, unlawful rest break practices. In fact, the memo pre-dates the Class Period, and 8 Plaintiff acknowledges that a 2013 memo clarified that employees are "entitled to 10 minutes of 9 paid rest break for shiftsfi-om3.5 to 6 hours, 20 minutes for shifts of more than 6 up to 10 hours, 10 30 minutes for shifts of more than 10 up to 14 hours, etc.," but does not propose any means to 11 address that change. Indeed, no one has testified that the 2010 memo was followed in their store 12 or described practices in which rest breaks were not provided for employees who worked shifts 13 lasting 3.5 to 4 hours or 6 to 8 hours.' This includes people employed in 2011, 2012, and 2013, 14 before the 2013 memo eliminated the language to which Plaintiff objects. To the contrary, the 15 evidence demonstrates variation in the rest break practices from store to store. See Madden Mot. 16 to Deny Cert, at 15-16. For example, Melisa Molina, an employee since 2010, testified that 17 employees in her store who work less than 5 hours are provided a 10-minute rest break and those 18 who work 8 hours are provided two 10-minute breaks. Molina 11| 9-10, 17, 19; Molina II 30:6- 19 7, 63:23-64:12; 71:22-72:5. Lily Chen, employed since 2012, explained that employees get a 20 first rest break if they work over two hours and a second rest break "[i]f they take a lunch." Chen 21 102:12-23,106:22-107:1. Allison Mayer, employedfi-om2010 to 2012, testified that employees 22 were permitted afirstrest break if they "worked more than three and a half hours in a shift" and 23 a second rest break if they ">yorked more than six hours in a shift." Mayer 20:3-15, 69:18-19, 24 117:9-16; see also Attiya 20:12-24, 76:25-77:25. 25 This case is nothing like the Brinker and Alberts cases on which Plaintiff relies. There, 26 , ' Plaintiffs declarants asserted that they were "not permitted to take two 10-minute unintermpted 27 rest breaks for every four hours [they] worked." Allen 18; Gulacheck 16. But the declarants who appeared for their depositions disavowed those statements, and admitted that the policy in their 2g store was to provide afirstrest break after no more than 3.5 hours and a second rest break after no more than 6. See, e.g, Allen 122:25-123:7; Gulachek 143:20-144:2; Vazquez 120:13-121:22. 4 DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR CLASS CERTIFICATION 1 the employers conceded that they had uniform rest break policies that did not provide afirstrest 2 break until an employee worked at least four hours or a second rest break until an employee 3 works at least eight hours. Here, the evidence shows widespread variation in rest break practices, 4 and no evidence at all from which the Court couldfindclasswide liability. Determining when 5 and whether the 2010 memo applied to an employee and whether that application triggered a 6 violation of rest break rights is an individualized inquiry that prevents certification.^ 7 PlaintifF also argues unconvincingly that the 2010 and 2013 memos are evidence of a 8 facially unlawful "policy" of (1) failing to provide meal periods to employees who did not sign 9 meal waivers and worked 5 to 6 hours and (2) requiring employees to clock out for meal periods 10 even if they did not take them. Mot. at 5-6. She has no evidence that any such practices even 11 existed, much less that they were uniformly implemented in the manner she suggests. 12 Individualized inquiries predominate because meal break practices for shifts lasting between 5 13 and 6 hours vary widely. Latz 76:11-15, 132:1-5 (employees who have not waived meal get a 14 meal period for shifts over 5 hours; employees who have "don't get" a meal for 5.5 hour shifts, 15 but store manager schedules one anyway); Molina II 59:22-60:10 (employees who waive meal 16 periods still have option to take meal periods for shifts less than six hours, "but most... prefer 17 Just to get the rest break and work through"); Chen 76:22-77:15, 88:9-18 (employees who work 18 "over six hours" are entitled tofirstmeal period because everyone in store signed waiver). 19 Additionally, meal period waivers varied over time. Different employees sign different versions, 20 and some employees sign multiple versions. Benson I 10-12, Exs. L, M, & N; Waddell II 67- 21 68,151-52; E. Enriquez 148:6-14. Some employees choose not to sign waivers; at some stores, 22 everyone signs one. Latz 140:6-13. 23 Individualized issues likewise predominate with respect to the determination of whether 24 employees clocked out for meal periods they did not take in violation of Steve Madden's written 25 policies. Many putative class members testified that if they did not take a meal period, they did 26 ^ Plaintiffhas not alleged that she was denied rest breaks due to the 2010 memo. She "did not recognize" the 2010 memo, and claims instead that she was not informed that she was "entitled to 27 rest breaks." Phelps 115:10-24; Phelps 110. This provides a separate and independent basis to deny certification on this theory. Cara v, Procter & Gamble Co., 18 Cal. App. 4th 644, 663 28 (1993) ("The cases uniformly hold that a plaintiff seeking to maintain a class action must be a member ofthe class he claims to represent.") 5 , DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR CLASS CERTIFICATION 1 not clock out for one and were automatically paid a meal period premium. See, e.g., Mayer 2 98:10-99:25. Evidence that some of Plaintiff s declarants occasionally worked through meal 3 periods that they had recorded does not establish a classwide practice.^ 4 The expert's analysis of time records confirms this variability. Depending on the year, 5 employees who worked betweenfiveand six hours recorded a meal period anywhere from 21.1 6 to 6% ofthe time. Anderson, tbl. 5. Ofthe shifts for which an employee did not record a meal 7 period, meal premium was paid anywhere from 1.3 to 14.4% of the time (presumably depending 8 on whether they had or had not waived their break). Id. '* Rates of compliant meal periods for 9 shifts over 6 hours vary by store, position, and year as well. For example, shoe stylists did not 10 record afirstmeal period in 11.9% of shifts while lead stock associates only failed to record one 11 in 1.7% of shifts. Id., tbl. 2. During the Class Period, the rate of unrecordedfirstmeal periods in 12 some stores is 16.4%; in others it is only 0.7%. Id, tbl. 1. In 2011, the percentage of shifts 13 overall with potential meal violations was 1.9%. Id., app'x 1. In 2017, it was 3.6%. Id. 14 (b) PlaintiffAlso Fails To Show That a Subclass Based on the Application of the 2010 or 2013 Memo is Sufficiently Numerous or Ascertainable. 15 Plaintiff asserts that because the discovery list included 2,129 employees, the "proposed 16 class is sufficiently numerous." Mot. at 16. That makes no sense. She makes no attempt to 17 quantify or identify which current or former employees worked at stores or under store managers 18 who were even aware of the 2010 and 2013 memos, let alone which employees were denied rest 19 periods under the 2010 memo or who were not provided with meal periods or falsely recorded 20 meal periods under the 2010 and 2013 memos. 21 Instead, she PlaintifF incorrectly suggests that Madden's time records can be used render 22 her policy-based meal and rest break claims manageable. But because employees' rest breaks are 23 24 ^ Declarants who appeared for their depositions admitted either that, contrary to their declarations, they had always been able to take their meal periods or that when they did not take a meal period 25 to which they were entitled, they did not clock out and were paid a meal period premium. * Plaintiffs expert failed to identify the percentage of shifts between 5 and 6 hours with recorded 26 meal breaks, and admitted that his analysis did not account for meal period waivers, explaining that he had been instmcted that the waiver was "deficient." But Plaintiffs only criticism of the 27 meal period waivers is that a prior version required on-duty meal periods (Mot. at 6-7), a separate issue that would not invalidate a meal period waiver for shifts between 5 and 6 hours. Plaintiff 28 offers no explanation for how the Court could identify which employees who did not take meal periods for shifts between 5 and 6 hours did not sign waivers. 6 DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR CLASS CERTIFICATION 1 not recorded, time records say nothing about whether a rest break was or was not taken. 2 Similarly, the time records do not show whether or which version of a meal break waiver an 3 employee signed. Therefore, they cannot identify employees who were entitled to but did not 4 record meal periods during 5-6 hour shifts. And PlaintifPs theory that employees recorded meal 5 periods that they did not take is premised on inaccurate time records. Yet the time records 6 provide no evidence at all as to whether a recorded meal period was or was not taken. Plaintiff 7 has not met her burden to show that her facial invalidity claims are ascertainable or even 8 attempted to estimate the number of employees with the right to recover under then.^ 9 2. Plaintiff Cannot Show a Classwide Practice of Requiring On-Duty Meals. 10 Plaintiff bases her on-duty meal period claim on an earlier version of Steve Madden's 11 meal period waiver, that she admits is no longer in use, not an on duty meal period agreement. 12 But this has not stopped her from asking the Court to certify a class based on Steve Madden's on 13 duty meal period policy. Mot. at 6, n.5. As an initial matter. Plaintiff is not an adequate 14 representative for this claim as she never signed any meal period waiver. Phelps 113:2-20; see 15 Caro, 18 Cal. App. 4th at 663. 16 Plaintiff interprets the following two sentences in the meal period waiver as requiring 17 employees working over six hours to take an on-duty meal period: 18 My signature below indicates that I am waiving my meal period and I acknowledge that any time worked in excess of six hours will require a meal period. I also acknowledge that 19 this meal period shall be considered an "on duty" meal period that is counted as hours worked, which must be compensated at my regular rate of pay. Mot. at 6. At best, this language is ambiguous as to whether the "on duty" meal period is the one that is being waived or the one that is provided when an employee works in excess of six hours. But Plaintiffs on duty meal break claim does not tum on the proper interpretation of the meal period waiver. Rather, it tums on whether the meal period waiver as applied in Steve Madden's stores violated employees' rights. Unlike the Abdullah and Faulkinbury cases on which Plaintiff relies, here there was no uniform policy requiring employees to take on duty meal periods and thus no corimion practice questions through sampling also fails. DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR CLASS CERTIFICATION 1 that lends itself to classwide adjudication. Plaintiffhas not pointed to any evidence that any 2 employees ever took on duty meal periods for which they were not paid a meal period premium, 3 let alone that it was a uniform or common practice to do so. Instead, the testimony from putative 4 class members and Steve Madden corporate representatives shows that in most cases, employees 5 were fi-ee to leave their stores during their meal periods—a practice antithetical to the concept of 6 an on-duty meal period—and that actual practices regarding meal periods varied. Hare Dep. 7 186:22-24 (employees allowed to leave); Mayer 114:13-15 (always left); Serrano 102:7-17 8 (some employees leave store, others stay in break room and "watch Netflix"). Employees who 9 remained in the store were typically expected to refrain from performing any work during those 10 breaks. Molina II 67:4-13, 69:6-20, 79:23-80:3; Chen 97:16-21.^ On those occasions where 11 employees were required to remain in the store and on duty during a meal period, the meal 12 period was treated as a missed meal period and they were paid a meal period premium. Mayer 13 35:14-36:9, 98:18-99:19 (told to remain in store for lunch break only on certain Sundays when 14 store was understaffed and told not to record a meal period so she would receive a premium); 15 Allen 20:6-21:10. Identification of when or why an employees took an on duty meal period 16 would require the type of individualized inquiries fatal to certification. 17 3. Plaintiff Is Not An Adequate Class Representative For Her Manager On-Duty Claim, Which Is Not Certifiable In Any Event. 18 Plaintiff also seeks to bring a class claim based on a theory of liability that putative class 19 members are required to "miss, take late, shorten, and/or intermpt their meal and rest breaks" to 20 comply with non-break policies. Mot. at 9-10. This theory of liability is really three separate 21 theories of liability based on three sets of policies and practices: "on duty manager" policies and 22 practices, bag check policies and practices, and customer service policies and practices. Steve 23 Madden addresses the first of these theories here, and the other two in the following section. 24 Plaintiffs "manager on duty" theory seems to be based on a claim that Steve Madden 25 has a policy requiring at least one manager to be on duty at all times, which prevents managers 26 firom taking their meal and rest breaks. Plaintiff, however, admits that she was never a manager 27 ^ To the extent Plaintiff suggests that a meal period that is "intermpted" is an on-duty rneal 28 period, this claim collapses into her claim based on "short, late, and intermpted" breaks, and fails for the reasons set forth below in section I.A.4. 8 DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR CLASS CERTIFICATION 1 in any of Steve Madden's Califomia stores. Phelps ^ 3. Thus, no manager-on-duty policy 2 applied to her during the relevant period or prevented her from taking the meal and rest breaks to 3 which she was entitled. Nor does she suggest that it did. See Mot. at 18-19. Because she was 4 never subject to the alleged classwide policy, her experiences are not "typical" of the class she 5 seeks to represent. As a result, she cannot serve as class representative.' , . 6 But even if Plaintiff were an adequate class representative. Plaintiff cannot show that 7 common issues will predominate over individualized ones. While some managers confirmed that 8 a manager on duty policy exists in their stores, their testimony demonstrated significant variations 9 both in both what that policy requires and whether application causes them to experience missed 10 or denied meal and rest breaks. For example, some managers testified that the policy prevented 11 them from taking duty-free meal breaks when they were the only manager in the store, but not 12 rest breaks. Mayer 117:17-118:8; Chen 91:2-14. Others testified that the policy applied to meal 13 and rest breaks alike. Allen 190:3-20. Still others suggested the policy applied only when their 14 store was open to the public. Latz 48:24-49:15, 92:17-23 (typically takes first rest break before 15 store opens when he is only employee working because "it's easy"). 16 There is also wide variation in whether whatever version of the policy was in effect at 17 their store impacted their ability to take compliant meal and rest breaks. For example, during 18 shifts when there are periods of time only one manager is on duty, the opening and closing 19 managers are often scheduled so that they overlap in such a manner as to permit each manager to 20 take duty-firee breaks. See Santiago 45:1-10 (closing manager takes lunch break before opening 21 manager scheduled to leave). And even for shifts where there is only one manager ever in the 22 store, there are variations as to whether that circumstance prevented the managerfi-omtaking 23 duty-fi-ee breaks.* Mayer 117:17-118:8 (sometimes could, but sometimes could not). 24 , Indeed, Plaintiff never addresses the issue of whether her experiences are typical of the class of 25 managers allegedly denied breaks due to the manager on duty policy. The single paragraph addressing typicality fails to address the manager on duty theory at all. Mot. at 18-19. It appears 26 from her declaration that her counsel may intend to argue that because she was a mmiager when she worked in Illinois, she is an adequate representative for the claims of managers in Califomia. 27 5ee Phelps 110. Any such argument would be beyond frivolous. * Moreover, managers who reported isolated instances in which they were unable to take duty free 28 mta\ breaks did not record a meal period and were paid a meal period premium. It is not clear what classwide damages remain to be recovered. See Kaanaana v. Barrett Bus. Servs., Inc., 29 9 DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR CLASS CERTIFICATION 1 The evidence thus shows that—far from a common practice and policy of denying 2 managers duty-free breaks—^there are varying circumstances in different stores with different 3 practices. Plaintiff does not identify any common proof that would allow the Court to adjudicate 4 her "manager on duty" claim on a class basis; she cannot even show common proof as to what 5 the manager on duty policy was or a means identify the current and former employees with on 6 duty manager claims. She has failed to meet her burdens to demonstrate that common issues 7 predominate and that the subclass is ascertainable and sufficiently numerous. 8 4. Individualized Issues Overwhelm Plaintiffs Claims That Bag Check and Customer Service Practices Cause Break Violations. 9 Plaintiffs remaining theories of liability for short, late, missed and intermpted breaks 10 rely on Steve Madden's bag check and customer service practices. But Plaintiffhas no evidence 11 that these practices resulted in a common practice of denying compliant meal or rest breaks. 12 Plaintiffs proffered evidence raises individualized issues, not common questions of law or fact. 13 With respect to bag check policies, the only evidence of common practices is Steve 14 Madden's written bag check policy, which provides that bag checks—to the extent that one is 15 required—be conducted on the clock. Benson I Exs. E «& F. In most cases, employees are in 16 charge of making sure they take complete breaks. Velazquez 59:7-23. While many store 17 managers confirmed that they conduct bag checks on the clock, before employees clock out for 18 their meal period or begin their rest break, (Chen 72:19-23; Capizzelli 42:11-20) the trier of fact 19 will fact numerous questions unique to the individual and shift at issue to determine whether the 20 bag check policy prevented an employee from taking a full meal or rest break. Those questions 21 include, for example: 22 • Did the employee chose to stay in the store during his or her break (in which case, there was no bag check at all)? 23 • If the employee left the store, did he or she choose to take a bag with him or her? • If the employee did leave the store and did bring a bag, did the employee clock out for 24 meal period or begin timing rest period before or after having bag checked? • If the employee clocked out or began timing his or her break before the bag check, was 25 their break nonetheless at least 30 minutes or 10 minutes, respectively? 26 None of these questions are capable of a classwide resolution. Indeed, the court in Lao v. H&M 27 Hennes & Mauritz, L.P. denied certification in almost identical circumstances for these very 28 Cal. App. 5th 778, 802-08 (2018). 10 DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR CLASS CERTIFICATION 1 1 reasons. 2018 WL 3753708, at *6 (N.D. Cal. Aug. 8, 2018). 2 Plaintiffs suggestion that Steve Madden's "prioritization" of customer service results in 3 meal and rest break violations fares no better. PlaintifF points to language in the 2010 and 2012 4 Handbooks asking employees to "cooperate with your supervisor in taking meal breaks at a time 5 when there will be no interference with the business." Mot. at 10. The policy says nothing about 6 sacrificing meal breaks in the name of customer service and does not even mention rest breaks. 7 And the prior paragraph expressly instructs employees to "take all your meal ahd break periods" 8 and "take your full allotment of time for your meal(s) and break(s)," and not to "perform any 9 work during these periods." Benson I Exs. A (at Madden 0032) & B (at Madden 0086). 10 The evidence does not support a common practice of meal and rest break violations 11 resulting from Defendant's customer service policy. PlaintifF suggests that there were times class 12 members shortened, delayed, intermpted, or missed meal breaks to "provide customer service on 13 demand" (Mot. at 10-11) but Plaintiffs own declarants testified that customer service did not 14 tmmp meal or rest breaks. Allen 130:5-11; Velazquez 107:24-108:9; Waddell II225-26. Some 15 store managers explained that an employee might be asked to delay a meal or rest period when 16 the store was busy, but that those breaks are not denied or shortened. Gulachek 51:21 -52:10; 17 Vazquez 118:21-119:3. PlaintifF offers no evidence to suggest that such delays commonly 18 trigger meal and rest break violations. And on many days and during many shifts, employees are 19 able to take their breaks at their scheduled time or at a time of their choice. Velazquez 53:25- 20 54:19; Belle 131:9-16. Evidence that some employees intermpted their breaks on some 21 occasions is not enough to show common evidence of a violation where there is also evidence: • putative class members were usually free to leave the store for all their breaks, and