Preview
1 Gregory J. Wood (200780)
B. Douglas Robbins (219413)
2 Leyla M. Pasic (250705)
Dawn D. Johnson (227076)
3 WOOD ROBBINS, LLP
One Post St., Suite 800
4 San Francisco, Califomia 94104
Telephone: (415) 247-7900
5 Facsimile: (415) 247-7901
6 Attomeys for Plaintiffs and Cross-Defendants
MIGUEL OSUNA and OSCAR J. ALMAZAN-MARTINEZ,
7 And Plaintiff JOSE J. MEJIA, And Putative Class Members
8 IN THE SUPERIOR COURT OF CALIFORNIA
9 IN AND FOR THE COUNTY OF SACRAMENTO
10 JOSE J. MEJIA, an individual; MIGUEL Case No.: 34-2016-00190824-CU-OE-GDS
OSUNA, an individual; and OSCAR J.
11 ALMAZAN-MARTINEZ, an individual, on PLAINTIFFS' COMBINED REPLY
behalf of themselves, and on behalf of others BRIEF IN SUPPORT OF MOTION
12 similarly situated. FOR CLASS CERTIFICATION
13 Plaintiffs,
Date: Sept. 14, 2017
14 Time: 9:00 a.m.
Dept. 54
15 ROUSSOS CONSTRUCTION, INC., a
Califomia corporation; MATTHEW NOTICE TO DEFENDANTS: Pursuant
16 HAWKINS, dba FOCUS FLOORING, a sole to Local Rule 1.06(A), the court will make a
proprietorship; FOCUS FLOORING, INC., a tentative mling on the merits ofthis matter
17 Califomia corporation; MICHAEL CHAVEZ by 2:00 p.m., the court day before the
dba FLOORS UNLIMITED and/or dba MC hearing. The complete text of the tentative
18 FLOOR COVERING, a sole proprietorship; J. mlings for the department may be
TRINIDAD NINO dba NINO'S CARPET, a downloaded off the court's website. If the
19 sole proprietorship, NICHOLAS SPERIS, an party does not have online access, they may
individual, and DOES 1 through 100, inclusive. call the dedicated phone number for the
20 department as referenced in the local
Defendants. telephone directory between the hours of
21 2:00 p.m. and 4:00 p.m. on the court day
before the hearing and receive the tentative
22 mling. If you do not call the court and the
opposing party by 3:00 pm the court day
23 before the hearing, no hearing will be held.
24
Complaint Filed: Oct. 23,2015
25 Cross-Complaint Filed: Oct. 28, 2016
AND RELATED CROSS-ACTION.
Trial Date: Jan. 29, 2018
26
27
28
REPLY ISO MOTION FOR CLASS CERTIFICATION
CASE NO. 34-2016-00190824-CU-OE-GDS
TABLE OF CONTENTS
2 Pg|
3 I. REPLY ARGUMENT l
4 A. The Misclassification Inquiry is Suitedfor Class-Wide
Disposition 1
5
1. Roussos' Argument Re Misclassification 1
6
2. Hawkins' Argument Re Misclassification 1
7
Plaintiffs' Claims Are Suited for Class-Wide Disposition 4
8
1. Roussos'Argument 4
9
2. Hawkins Argument 4
10
Roussos' Relationship to Defendants Is Irrelevant at
11 This Stage 6
12 D. Roussos Is Not Shieldedfrom Liability as a Matter of Law 8
13 E. The Class Is Readily Ascertainable 9
14 F. Plaintiffs' Claims Are Typical 10
15 G. Plaintiffs are Adequate Class Representatives 11
16 H. Class Action is a Superior Means of Resolving This Dispute 12
17 II. CONCLUSION 13
18
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20
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REPLY ISO MOTION FOR CLASS CERTIFICATION
CASE NO. 34-2016-00190824-CU-OE-GDS
1 TABLE OF AUTHORITIES
2 Page(s)
3 Cases
4 AU V. U.S.A. Cab Ltd.,
5 176 Cal. App. 4th 1333 (2009) 2
6 Benton V. Telecom Network Specialists, Inc.,
220 Cal. App. 4th 701 (2013) 7, 8
7
Harris v. Vector Marketing Corp,
8 753 F. Supp. 2d 996 11, 12
9 Jaimez v. DAIOHS USA, Inc.,
10 181 Cal.App. 4th 1286 (2010) 6, 11
11 Johnson v. Serenity Transportation, Inc.,
No. 15-CV-02004-JSC, 2017 WL 1365112 (N.D. Cal. Apr. 14, 2017) 9
12
Jones V. Farmers Insurance Exchange,
13 221 Cal. App. 4th 986 (2013) 11
14 Laird v. Capital Cities/ABC, Inc.,
68 Cal. App. 4th 727 (1998), overmled by Reidv. Google, Inc., 50 Cal. 4th
15
512(2010)
16
Martinez v. Combs,
17 49 Cal. 4th 35 (2010) 4, 7,8
18 Noe V. Superior Court,
237 Cal. App. 4th 316 (2015) 1
19
Roman v. Jan-Pro Franchising Int 'I, Inc.,
20 No. C 16-05961 WHA, 2017 WL 2265447 (N.D. Cal. May 24, 2017) 7
21
Rose V. City of Hayward,
22 126 Cal. App. 3d 926 (1981) 10
23 Sanders Construction Co., Inc. v. Cerda,
175 Cal. App. 4th 430 (2009) 8
24
Sotelo V. MediaNews Grp., Inc.,
25
207 Cal. App. 4th 639 (2012) 2, 6, 8, 10
26
Statutes
27 Califomia Labor Code Section 226.8 1
28 Califomia Labor Code Section 2750.5 8
ii
REPLY ISO MOTION FOR CLASS CERTIFICATION
CASE NO. 34-2016-00190824-CU-OE-GDS
Califomia Labor Code Section 2810.3 8, 9
1
2 Califomia Labor Code Section 3700
3 Califomia Labor Code Section 6300
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
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22
23
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27
28
in
REPLY ISO MOTION FOR CLASS CERTIFICATION
CASE NO. 34-2016-00190824-CU-OE-GDS
1 Plaintiffs JOSE J. MEJIA, MIGUEL OSUNA, and OSCAR J. ALMAZAN-MARTINEZ
2 ("Plaintiffs") hereby submits this COMBINED Reply to ALL of Defendants' Oppositions to
3 Plaintiffs' Motion for Class Certification.
4 I. REPLY ARGUMENT
5 A. The Misclassification Inquiry is Suited for Class-Wide Disposition
6 A pivotal issue in this case is whether Plaintiffs and class members were misclassified as
7 independent contractors. Defendants argue that the misclassification issue is not suitable for class
8 treatment. But Defendants are wrong.
9 1. Roussos' Argument Re Misclassification
10 Roussos contends that Plaintiffs' operative pleading "does not even include a cause of
11 action alleging willful misclassification (i.e., violation of labor Code section 226.8) nor may
12 Plaintiffs pursue such a claim because there is no private cause of action available." Roussos
13 Opp'n 7:9-12. But Roussos misunderstands the law.
14 Plaintiffs are "permitted to enforce section 226.8 through a PAGA claim." Noe v.
15 Superior Court, T i l Cal. App. 4"^ 316, 335 (2015). Plaintiffs seek to do so here, and PAGA does
16 not require class certification. See TAC \ 89 (alleging under the authority of PAGA that
17 "Defendants have violated the Califomia Labor Code, including but not limited to violations of
18 sections ... 226.8"). Therefore, Roussos' cursory argument does not address the actual issue:
19 whether Plaintiffs' misclassification theory, properly advanced, is suitable for class certification.
20 2. Hawkins' Argument Re Misclassification
21 For his part, Hawkins argues "this is not a case where the installer's relationships and/or
22 duties were govemed by a universal policy" suitable for class certification. Hawkins Opp'n 12:8-
23 9; 13:6-12. Hawkins' proof of the lack a "universal policy," is that the Defendant employers did
24 not issue "handbooks or guidelines." Id. But Hawkins fails to submit any admissible evidence on
25 this point. Moreover, Hawkins fails to address Plaintiffs' substantial evidence and argument that
26 all installers do the exact same thing - install vinyl and carpet pursuant to exacting specifications
27 laid out in Roussos' Work Orders. See Memo, of Points and Authorities in Support of Motion for
28 Class Certification 9:1 - 16:5. In effect there is a "universal policy" as evinced by the pattem and
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CASE NO. 34-2016-00190824-CU-OE-GDS
1 practice of the parties. Defendants may not escape liability for violations of the Califomia Labor
2 Code simply because they did not codify their unlawful scheme in a handbook.
3 Hawkins relies on Sotelo v. MediaNews Grp., Inc., 207 Cal. App. 4"" 639 (2012)
4 ("Sotelo") and AU v. U.S.A. Cab Ltd., 176 Cal. App. 4* 1333 (2009) ("Ali") to argue Plaintiffs'
5 misclassification theory is not suitable for class wide disposition. But those cases are inapposite.
6 In Ali, for example, taxi drives alleged they were misclassified as independent
7 contractors. Ali, 176 Cal. App. 4"' at 1349. The evidence, however, showed that the drivers were
8 "not required to use USA Cab's dispatch service," that some of the taxi drivers "independently
9 advertised and promoted their own services on Web sites and in phonebooks, and by giving out
10 business cards and their personal cell phone numbers," that taxi cab drivers had control over the
11 prices they charged their customers, that "USA Cab did not require them to charge customers the
12 standard metered rate," and that taxi drivers "chose to set their own rates, such as flat rates for
13 trips, or rates below the standard metered rate." Id. In other words, on facts entirely different
14 from the facts here, the trial court was satisfied that USA Cab did not exercise pervasive and
15 significant control over the taxi drivers.
16 Similarly, in Sotelo, the trial court "found variance in the 'method of payment' factor
17 because some carriers were paid by a piece rate and some on a buy/sell basis." Sotelo, 207 Cal.
18 App. 4'*' at 658. But here there is no such variance, and Hawkins fails to cite to any evidence that
19 there is. Moreover, the Sotelo court found some plaintiffs "had their own businesses," that some
20 had the opportunity for profit based on entrepreneurial and management skills, etc. Id. at 658 -
21 659. Again, those are not the facts here. Defendants fail to offer any evidence on this issue either.
22 Of note, the Court of Appeal in Sotelo observed that "The conclusions of fact that [a different]
23 court reached upon its record do not compel the trial court here, or us, to reach the same
24 conclusion." Id. at 659. The same is tme here. Just because the Sotelo and Ali courts came to
25 certain conclusions does not mean that those same conclusions must be reached when the facts,
26 here, do not support them.
27 Though Hawkins procured declarations of three individuals apparently to show they were
28 independent contractors, those declarations are woefully inadequate, vague, and irrelevant. Most
2
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CASE NO. 34-2016-00190824-CU-OE-GDS
1 significantly, all three declarants fail to declare that they are members of the class, i.e., that they
2 are unlicensedflooring installers who installedflooring pursuant to Roussos Work Orders during
3 the class period. See generally Declaration of James Lick, Sept. 27, 2016; Declaration of
4 Gilberto J. Velesco, Sept. 27, 2016; Declaration of Hermino Gomez, Sept. 28, 2016. There is no
5 mention whatsoever of "floor installation" or "Roussos" or "Roussos Work Orders" anywhere in
6 any ofthe three declarations. And all three declarations were allegedly secured approximately
7 one year ago and not for purposes of this Motion. Moreover, not one of the declarants explain
8 precisely how they exercised control over the manner and means offloor installation, and
9 instead, offer irrelevant conclusions. To the contrary, the evidence here shows Defendants had
10 the right to (and actually did) control the work of the class members using the same policies day
11 in and day out. Chavez Depo. Trans. 20:8-22, 46:16 - 50:23, 51:21 - 52:9, 52:16-22 54:24 -
12 55:7,58:6-13,72:20-73:11; 106:5-11, 107:24- 108:12, 108:20- 109:15, 133:12-16, 157:12-
13 25, 160:13-20, 163:5- 164:3, 183:14-185:25, 187:2-6, 187:18-25, 229:24-25,230:6-9, 230:24-
14 231:1, 231:18-20, 232:8-21, 233:6-10; Hawkins Depo. Trans. 36:12-19, 41:12-15, 60:16-25,
15 66:25 - 67:16, 82:18-13, 86:19 - 87:17, 88:16 - 90:3, 90:13-17, 90:23 - 96:11; 102:5-18,
16 102:24-105:19, 112:22-115:16, 115:22- 116:7, 132:22- 134:20, 137:21 - 138:21, 162:8-12,
17 188:9-19, 194:17 - 195:9, 242:23 - 243:7, 244:20-23, 246:12-19, 249:1-3, 250:8 - 251:15,
18 256:23 - 257:13, 263:24 - 264:2; Nino Depo. Trans. 23:12-17, 24:2-11, 93:15 - 96:19, 96:22 -
19 98:11, 112:20-113:1, 125:9-12, 148:12-14, 149:2-6, 149:15-24, 153:18-154:1; Speris Depo.
20 Trans. 42:1-15, 76:21 - 77:4. Martinez Decl. 8-17, 26-28; Osuna Decl. 13-33, Mejia Decl.
21 4, 6-34, Pasic Decl. I t 14-17, 24, 26, Ex. M - Ex. P, Ex. W, Ex. Y. Plaintiffs have also
22 offered substantial, undisputed evidence of the Borello secondary indicia that supports class
23 certification. Chavez Depo. Trans. 49:3 - 50:23, 87:4-7, 106:24 - 107:3, 108:20 - 109:15,
24 109:22-24, 115:13-21, 144:22-24, 156:18-25, 157:12-25, 160:13-20, 163:5- 164:3; Hawkins
25 Depo. Trans. 115:17-21, 137:21 - 138:21, 165:15-18 188:9-19, 193:7- 194:7, 194:17- 195:9;
26 Nino Depo. Trans. 18:2-4, 102:24- 103:25, 110:15-25; Speris Depo. Trans. 45:10-16; Martinez
27 Decl. 12-4, 6, 8-13, 27-28, 30, 33, 36-37, 40, 41; Osuna Decl. t 3, 6, 15, 32, 42-44; Mejia Decl.
28 12-3, 5-7, 10-11, 16-17, 28, 32-33, 35, 37, 38; Pasic Decl. f 6, Ex. E. Other than citing to cases
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REPLY ISO MOTION FOR CLASS CERTIFICATION
CASE NO. 34-2016-00190824-CU-OE-GDS
1 with facts different from those here. Defendants have offered absolutely no evidence to rebut
2 Plaintiffs' evidence.
3 In any event, it will be the fact finder's task to weigh the types of available common
4 evidence described above and determine whether the class members are controlled by
5 Defendants and whether their work is more like that of an employee or an independent
6 contractor. Plaintiffs have demonstrated, though, that the class members are similarly situated
7 with respect to the Borello and Martinez factors and that common evidence is available that
8 makes a representative proceeding efficient and appropriate.
9 B. Plaintiffs' Claims Are Suitedfor Class-Wide Disposition
10 1. Roussos' Argument
11 Without any substantive analysis whatsoever, Roussos simply concludes that Plainfiffs'
12 wage and hour claims can be pursued only against the employer and that Roussos is not their
13 employer because it does not directly engage them. Roussos Opp'n 7:17 - 20.
14 But under law, Roussos scheme of having Supervisor Defendants hire class members
15 does not shield Roussos from liability for wage and hour violations. Indeed multiple separate
16 entities may be found to be the employer if they either (a) exercise control over the wages, hours
17 or working conditions; or (b) suffer or permit Plaintiffs to work; or (c) engage, thereby creating
18 a common law employment relationship. Martinez v. Combs, 49 Cal. 4'*' 35, 73 (2010). Under the
19 "suffer or permit" prong, "the basis of liability is the defendant's knowledge of and failure to
20 prevent the workfi"omoccurring." Id. at 70.
21 Here, Roussos readily concedes that it suffers and/or permits class members to install
22 floor pursuant to its Work Orders and that it has done nothing to stop their work. See e.g.,
23 Artemios "Demis" Roussos Decl. H 14,18. Moreover, though Roussos simply concludes,
24 without analysis, that it does not have the right to control class members under Borello, Plaintiffs
25 have offered substantial evidence to the contrary in its motion papers. In its Opposition, Roussos
26 simply ignores that evidence. But at trial, the jury will likely not ignore the evidence before it.
27 2. Hawkins Argument
28 Hawkins argues that Plaintiffs "fail[ed] to discuss or make a factual showing of any
4
REPLY ISO MOTION FOR CLASS CERTIFICATION
CASE NO. 34-2016-00190824-CU-OE-GDS
1 uniform policy to deny putafive members the ability to take rest or meal breaks, or any policy to
2 deny overtime pay." Hawkins Opp'n 15:8-10.
3 To the contrary. Plaintiffs submitted substantial evidence, including Defendants' own
4 discovery responses, to demonstrated Defendants' uniform policy that all but guaranteed that
5 class members would work overtime hours without overtime pay and/or missed rest and meal
6 breaks. See e.g., Mejia's RFA, Set I to Nicholas Speris and Speris Verified Resps., Nos. 10, 12,
7 attached to Pasic Decl. f 21, Ex. T;; Mejia's RFA Set I to Chavez and Chavez Verified Resps.,
8 Nos. 15, 16, 19, 27, 28, 49, attached to Pasic Decl. 122,; Ex. U; Mejia's RFA Set I to Nino and
9 Nino's Verified Resps., Nos. 15, 16, 19, 27, 28, 49, attached to Pasic Decl. 123, Ex. V; Hawkins
10 Resps. to RFA, Set 1 and Hawkins 2nd Am. Resps. to Form Interrogs., Set I., No. 17.1 re RFA
11 Nos. 16, 20, 28, attached to Pasic Decl. 1| 24, Ex. W; Roussos Verified Resps. to Mejia's RFA,
12 Set I, and Roussos Verified Resps. to Mejia's Form Interrogs., Set I, No. 17.1 attached to Pasic
13 Decl. t 25, Ex. X. For example. Plaintiffs presented evidence that class members were required
14 to show up to Roussos warehouse between 6:30 and 7 am because, per Roussos' express
15 instmcfion "load up is between 7 a.m. and 8:00 a.m."; that as a matter of uniform pracfice
16 Defendants pay "per piece" rather than by the hour; and that Defendants, as a matter of practice
17 do not pay overtime and leave it up to the installers to take meal and rest breaks. Pasic Decl.t 15,
18 Ex. N; Hawkins Depo. Trans. 41:12-15, 60:16-25, 94:2-19, 263:5 - 264:2; Chavez Depo. Trans.
19 58:6-13, 133:12-16; Nino Depo. Trans. 23:12-17, 64:1-3; Martinez Decl. 1| 9, 17, 32-34; Mejia
20 Decl. 127, 29-31; Osuna Decl. 1 15, 25-26, 37-40, Mejia's RFA, Set I to Nicholas Speris and
21 Speris Verified Resps., Nos. 10, 12, attached to Pasic Decl. f 21, Ex. T;; Mejia's RFA Set I to
22 Chavez and Chavez Verified Resps., Nos. 15, 16, 19, 27, 28, 49, attached to Pasic Decl. 122,;
23 Ex. U; Mejia's RFA Set I to Nino and Nino's Verified Resps., Nos. 15, 16, 19, 27, 28, 49,
24 attached to Pasic Decl. f 23, Ex. V; Hawkins Resps. to RFA, Set I and Hawkins 2nd Am. Resps.
25 to Form Interrogs., Set I., No. 17.1 re RFA Nos. 16, 20, 28, attached to Pasic Decl. f 24, Ex. W;
26 Roussos Verified Resps. to Mejia's RFA, Set I, and Roussos Verified Resps. to Mejia's Form
27 Interrogs., Set I, No. 17.1 attached to Pasic Decl. 125, Ex. X). In fact, in his verified discovery
28 responses, Hawkins conceded this uniform policy:
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REPLY ISO MOTION FOR CLASS CERTIFICATION
CASE NO. 34-2016-00190824-CU-OE-GDS
It was up to the Contractors to take rest and meal breaks. THE CONTRACTORS
1 WERE PAID ON A PIECE RATE BASIS, IT IS UP TO THEM TO TAKE
BREAKS AND LUNCHES, IF THEY SO CHOOSE. Further, [Hawkins]
2 contends that Plaintiffs PIECE RATE BASIS PAY included saidfimeperiods for
rest and meal breaks.
3
4 Hawkins Response to Form Interrogatory No. 17.1 re RFA No. 16, attached to, Plaintiffs Index
5 of Exhibits to Motion for Class Certification ("Ps' Index"), Ex. T.
6 Thus, Plaintiffs made a factual showing that Defendants characterized them as
7 independent contractors, failed to pay them time and a half for overtime hours they worked, and
8 used a pay stmcture that resulted, at least some ofthefime,in a failure to pay for all hours
9 worked. Thus, this case is more Uke Jaimez v. DAIOHS USA, Inc., 181 Cal. App. 4* 1286
10 (2010), where Plainfiffs "actually presented the court with theory of recovery that specified the
11 uniform policies and practices ofthe defendant that acted to establish liability for overtime."
12 Sotelo, 207 Cal. App. 4* at 654. Defendants do not dispute these uniform policies, and instead,
13 confuse liability with certificafion. For purposes of certification, however, Plaintiffs only have to
14 show that these policies similarly affected them and members of the putative class. Plaintiffs
15 have done so here.
16 C. Roussos' Relationship to Defendants Is Irrelevant at This Stage
17 Roussos and Hawkins then argue that the question of Defendants' relationship to each
18 other is yet another bar to class certification. For its part, Roussos argues that "if certification is
19 granted, the Borello multi-factor test will need to be applied at the very least at two levels:" (1)
20 by each of the Named Defendants to each of the Plaintiffs; and (2) by Roussos "to each of the
21 five Subcontractor Defendants, to establish whether Subcontractor Defendants are employees or
22 independent contractors of RCl." Roussos Opp'n 9:5-10. Hawkins contends that "Plaintiffs'
23 Mofion assumes the existence of a joint employer relafionship, but ignores the fact that
24 determining whether or not this type of relationship existed requires a fact-intensive analysis of
25 the relationships between Roussos, Hawkins, Chavez, Nino, and Speris, and the flooring
26 installers, which cannot be determined by common proof" Hawkins Opp'n 10:23-26.
27 That Defendants' argument lack merit is evidenced by Roussos' failure to cite to any
28 authority in support of its argument, as well as Hawkins' reliance on an irrelevant summary
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CASE NO. 34-2016-00190824-CU-OE-GDS
1 judgment case that has in any event been overmled. See Roussos Opp'n 9:3-10; Hawkins Opp'n
2 10:20-22; Lairdv. Capital Cities/ABC, Inc., 68 Cal. App. 4^^ 727 (1998), overruled by Reid v.
3 Google, Inc., 50 Cal. 4^^ 512 (2010). In fact, both Roussos and Hawkins misunderstand the law.
4 Contrary to what Roussos contends, Califomia law does not require Plainfiffs to establish
5 that Roussos is also the employer of Supervisor Defendants. Instead, the issue at certification
6 stage is whether these multiple entities can be deemed employers of the putative class. That issue
7 is examined under Martinez. See e.g., Roman v. Jan-Pro Franchising Int'l, Inc., No. C 16-05961
8 WHA, 2017 WL 2265447, at *3 (N.D. Cal. May 24, 2017). In Martinez, the Califomia Supreme
9 Court held that the definition of "employer," which encompasses any enfity that (a) "exercise[s]
10 control over the wages, hours or working conditions, or (b) suffers or permits [another] to work,
11 or (c) engage[s], thereby creating a common law employment relationship," "has the obvious
12 utility of reaching situations in which multiple entities control different aspects of the
13 employment relationship, as when one entity, which hires and pays workers, places them with
14 other entifies that supervise that work." Martinez v. Combs, 49 Cal. 4* at 59 (emphasis added).
15 Evidence presented by Plaintiffs shows that, at the very least, Roussos exercised control
16 over the hours and working conditions of Plaintiffs by requiring them to arrive to Roussos
17 warehouse daily by no later than 7:00 am; requiring them to install carpet and vinyl pursuant to
18 exacting instmctions laid out in its Work Orders, including dates and times, and requiring them
19 to engage in daily warehouse cleaning activities, without pay. Hawkins Depo. Trans. 41:12-15,
20 60:16-25, 91:10-12, 94:2-19, 102:5-18, 263:5-264:2; Chavez Depo. Trans. 58:6-13, 106:5-11,
21 133:12-16; Nino Depo. Trans. 23:12-17, 64:1-3; Martinez Decl. 9, 17; Osuna Decl. t t 15, 17,
22 25-26; Mejia Decl. t 8; Pasic Decl. t t l 5 , 16, 26, Ex. N, O, Y. Likewise, unlike in Martinez,
23 Roussos here suffers and permits class members to work because it knows that class members
24 are installing pursuant to its Work Orders, has the power to prevent them from doing so, but has
25 done nothing about it. Speris Depo. Trans. 76:21 - 77:4; Artemios "Demis" Roussos Decl. t t 14
26 18.
27 Thus, whether Roussos is an employer of class members is an issue that should be
28 answered only once. See e.g., Benton v. Telecom Network Specialists, Inc., 220 Cal. App. 4'*'
7
REPLY ISO MOTION FOR CLASS CERTIFICATION
CASE NO. 34-2016-00190824-CU-OE-GDS
1 701, 730-731 (2013) (holding "trial court could not deny class certification of technicians'
2 overtime claims [because], to the extent company was a joint employer, it had a duty to ensure
3 that all of its employees were being paid overtime but violated that obligafion by failing to adopt
4 procedures verifying that the staffing companies were in fact paying overtime"); see also Sotelo,
5 143 Cal. App. 4"^ at 661 (holding "[u]nder Martinez, then, the trial court should not have limited
6 itself to the test for a common law employment relationship" in denying class certification).
7 D. Roussos Is Not Shielded from Liability as a Matter of Law
8 Roussos argues that as a matter of law, it has no liability for wage and hour violations as
9 against licensed subcontractors. Roussos Opp'n 10:19-22. But the instant Motion is not one for
10 summary judgment. And Plaintiffs are not asking for a determination, as a matter of law, that
11 Roussos is the employer of class members. Rather, Plaintiffs contends that common proof
12 establishes Roussos' employer status under Martinez and Borello.
13 Roussos cites to Sanders for support. Roussos Opp'n 10:27-28. But Sanders is not
14 especially helpful to Roussos. It stands for the contrary proposition that "Labor Code section
15 2750.5 operates to conclusively determine that a general contractor is the employer of not only
16 its unlicensed subcontractors but also those employed by the unlicensed subcontractors."
17 Sanders, 175 Cal. App. 4*^ at 434-435.
18 Referring to Labor Code Section 2810.3, Roussos argues it is not a joint employer as a
19 matter of law because it is a general contractor utilizing licensed subcontractors. Roussos Opp'n
20 11:8- 14. But almost the exact opposite of what the Labor Code actually says. Roussos' blatant
21 misrepresentation of that code section is alarming and a violation of a lawyer's duties of candor
22 to the court. See Cal. R. Prof. Conduct 5-200 ("In presenting a matter" to the court, a lawyer
23 "shall not seek to mislead the judge . . . by . . . false statement of fact or law . . . . " ) . Califomia
24 Labor Code Secfion 2810.3 actually reads:
25 (b) A client employer shall share with a labor contractor all civil legal
responsibility and civil liability for all workers supplied by that labor contractor
26 for both ofthe following:
27 (1) The payment of wages.
28
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CASE NO. 34-2016-00190824-CU-OE-GDS
(2) Failure to secure valid workers' compensation coverage as
1 required by Section 3700.
2 (3) A client employer shall not shift to the labor contractor any legal
duties or liabilities under Division 5 (commencing with secfion
3 6300) with respect to workers supplied by the labor contractor.
4 Though less than ten courts have actually examined this provision, one court aptly noted,
5 "the various legislative committees that examined the bill expressed concem generally about
6 client employers evading liability for wage-and-hour and working condition violations for
7 subcontracted workers given the increased prevalence of this type of working arrangement in
8 Califomia." Jb/jn^on v. Serenity Transportation, /«c.,No. 15-CV-02004-JSC, 2017 WL
9 1365112, at *23 (N.D. Cal. Apr. 14, 2017) (emphasis added).
10 Secfion 2810.3, thus, supports Plainfiffs' theory that Roussos cannot escape liability for
11 its Labor Code violations simply by devising a fraudulent business scheme that relies wholly on
12 subcontracted work. In any event, to the extent Roussos contends it is not an employer as a
13 matter of law, that argument should be raised in a motion for summary judgment, not here.
14 Roussos has not filed such a motion.
15 E. The Class Is Readily Ascertainable
16 Hawkins argues that a "fact sensitive analysis [is required] of whether each and every
17 putative class member understood this complicated theory that they were working for joint
18 employers." Hawkins Opp'n 7:3 - 7. But no law requires class members to understand any
19 complicated theory of liability in order to enforce their rights under the Labor Code. Nor does
20 Plainfiffs' class definition assume a "joint employer relationship." All that the prospective class
21 members are required to answer is whether they are unlicensed flooring installers who installed
22 flooring pursuant to Roussos Work Orders during a specified time period.
23 Then Hawkins argues that the class definition is overly broad because it includes
24 "unknown installers who performed work only for Roussos and had absolutely no connection to
25 any of the Subcontractor Defendants." Hawkins Opp'n, 8:10-12. But this argument works only if
26 one ignores the facts of this case. In this case, there were no such installers. Roussos' scheme, as
27 conceded to in its papers, was to subcontract all of its floor installation work to its "first tier
28 subcontractors," who then further subcontracted to class members. Thus, there are no "unknown'
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1 installers.
2 "Class members are 'ascertainable' where they may be readily identified without
3 unreasonable expense or time by reference to official records." Rose v. City of Hayward, 126
4 Cal. App. 3d 926, 932 (1981). "If necessary to preserve the case as a class action, the court itself
5 can and should redefine the class where the evidence before it shows such a redefined class
6 would be ascertainable." Sotelo, 207 Cal. App. 4* at 651. Thus, to the extent there is any issue
7 with respect to the ascertainability of the class, which, in this case, there is none, the Court
8 should assist plaintiffs in redefining the class in order to preserve this case as a class action. If
9 necessary, the court could help to redefine the class by limiting the definifion to those class
10 members already identified by Defendants in verified discovery responses, or by creafing five
11 subclasses of those installers who worked pursuant to Roussos work orders under (1) Nino, (2)
12 Chavez, (3) Hawkins, and (4) Speris. See Sotelo, 207 Cal. App. 4*^ at 651 (noting "limiting the
13 class to those identified from respondents' records would result in an ascertainable class; indeed,
14 a list had already been generated during discovery").
15 Hawkins argues each subclass is not sufficiently numerous. Hawkins Opp'n 9:3-6. But
16 each Defendant Subcontractor ufilized mulfiple installers - in Hawkins case as many as 4\.See
17 e.g., Hawkins First Amended Response to Special Interrogatories, Set I, No. 1, attached to, Ps'
18 Index, Ex. J.
19 F. Plaintiffs' Claims Are Typical
20 Hawkins argues Plaintiffs' claims are "unique" and other workers might not have been
21 "similarly . . . injured." Hawkins Opp'n 17:8-14. But the evidence demonstrates that there is
22 nothing "unique" about Plaintiffs' experiences at Roussos.
23 To the contrary. Defendants own discovery responses and deposition testimony evinces
24 uniform employment practices and policies affecting all class members equally across the board,
25 and in the same exact manner as set out in Plaintiffs' declarations. See e.g. Artemios "Demis"
26 Roussos Decl. tt3-4, 8, 12, 14.
27 Hawkins submits declarations allegedly showing that three workers do not agree with
28 Plaintiffs' allegations. Hawkins Opp'n 12-14. But none of these declarants state that they are
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1 prospective class members, i.e., that they are unlicensedfloorinstallers who work(ed) pursuant
2 to Roussos' Work Orders during the specified period. For that reason alone the contents of the
3 declarafions must be struck. Finally, the contents of these declarafions are largely conclusory and
4 do not prove that Plainfiffs' claims are somehow atypical. To the contrary, the vast cache of
5 evidence suggests that these declarants' opinions—not the Plaintiffs' opinions—are atypical.
6 G. Plaintiffs are Adequate Class Representatives
7 All three defendants contend that Plaintiffs are not adequate class members. See e.g.,
8 Hawkins Opp'n 17:15 - 19:2; Chavez Opp'n 4:9 - 5:18; Roussos Opp'n 13:8-15. But these
9 arguments find no support in the applicable law.
10 The adequacy of the class representatives is not a reason to deny certification. "The lack
11 of an adequate class representative . . . does not justify the denial of the class certification
12 motion. Instead, the trial court must allow Plaintiffs an opportunity to amend their complaint to
13 name a suitable class representative." Jones v. Farmers Insurance Exchange, 221 Cal. App. 4*
14 986, 999 (2013). Moreover, there is simply no evidence that any of the Plaintiffs are inadequate
15 class representafives.
16 First, Defendants fail to cite to any Califomia law suggesting that the issues raised
17 regarding Plaintiff Osuna's "credibility" warrant the Court's denial of Plaintiff s request for class
18 certification. Hawkins cites to Jaimez, in which the proposed class representative was found
19 inadequate because he lied on his employment application about a felony conviction and
20 incarcerafion. Jaimez v. DAIOHS USA, Inc., 181 Cal. App. 4'*' 1286, 1296 (2010). Defendants do
21 not contend that Osuna lied to them or that he was convicted of a felony or incarcerated or that
22 he admitted it is okay to lie in order to procure employment.
23 Second, "[c]redibility problems do not automatically render a proposed class
24 representative inadequate." Harris v. Vector Marketing Corp, 753 F. Supp. 2d 996, 1015. "There
25 is 'inadequacy only where the representafive's credibility is questioned on issues directly
26 relevant to the litigation or there are confirmed examples of dishonesty, such as a criminal
27 conviction for fraud." Id (intemal citations omitted). "[G]enerally, unsavory character or
28 credibility problems will not justify afindingof inadequacy unless related to the issues in the
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1 lifigafion." Id.
2 Here, at his deposifion, Osuna expressed confusion between his use of an Individual
3 Taxpayer Identification Number ("ITfN") and Social Security number making Defendants'
4 arguments additionally unpersuasive. See e.g., Osuna Depo Trans. 44:16, attached to, De La
5 Riva Decl., 13, Ex. B. Confusion as to tax status is not the same as dishonesty. Defendants offer
6 no evidence that Osuna's use of ITIN and social security numbers for employment and/or
7 immigration purposes is illegal or unsavory. Instead, they throw any potenfially scandalous
8 matter at the Court in hopes that something will stick. This does not.
9 Defendants also argue that Osuna was found to be an employer in another case. But the
10 Labor Commissioner's finding that Osuna was an employer of Jose Montiel, who is not a
11 member of the class, is irrelevant. Osuna can be simultaneously Defendants' employee while
12 employing a third party. There is nothing logically nor legally inconsistent with this
13 arrangement.
14 Finally, Defendants argue Plaintiffs are "mere puppets" of their attomeys. But there is no
15 evidence of this. And making scurrilous accusations at counsel and the parties mns contrary to
16 the State Bar's Rules of Civility. See Califomia Attomey Guidelines of Civility and
17 Professionalism § 4(c) ("An attomey should not disparage the intelligence, integrity, ethics,
18 morals or behavior o f . . . other counsel, parties or participants when those characteristics are not
19 at issue."). As far as the facts go, each Plaintiff submitted extremely detailed declarations stating
20 under penalty of perjury that each Plaintiff had no interest antagonisfic to the class, that each had
21 been actively involved in this litigation and in regular contact with his counsel, and that each
22 took his responsibility as a class representative seriously. See e.g., Osuna Decl. 148; Mejia Decl.
23 140; Almazan-Martinez t 44. Plaintiffs are, thus, adequate class representatives.
24 H. Class Action is a Superior Means of Resolving This Dispute
25 Finally, Hawkins argues that a class action is not superior because there is a
26 "predominance of individual issues." Hawkins Opp'n 20:17-18. But other than simply repeating
27 his mantra that there are "countless individual inquiries," Hawkins does not actually say what
28 those individual inquiries might be. In fact, even Hawkins concedes that the key issue in this case
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1 is whether Defendants misclassified the class members. Hawkins Opp'n 20-22.
2 IL CONCLUSION
3 For all reasons stated in Plaintiffs' moving papers, and further set forth above. Plaintiffs
4 respectfully request that the Court GRANT this Motion, certify the Class, appoint Plaintiffs as
5 Class Representatives, and appoint Wood Robbins, LLP as Class Counsel.
6
7 Dated: September 7,2017 WOOD ROBBINS, LLP
8
By: /s/Leyla Pasic
9
Leyla Pasic
10 Attomeys for Plaintiffs JOSE J. MEJIA,
MIGUEL OSUNA, and OSCAR J.
11 ALMAZAN-MARTINEZ and the Putative
Class
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Preview
1 Gregory J. Wood (200780) B. Douglas Robbins (219413) 2 Leyla M. Pasic (250705) Dawn D. Johnson (227076) 3 WOOD ROBBINS, LLP One Post St., Suite 800 4 San Francisco, Califomia 94104 Telephone: (415) 247-7900 5 Facsimile: (415) 247-7901 6 Attomeys for Plaintiffs and Cross-Defendants MIGUEL OSUNA and OSCAR J. ALMAZAN-MARTINEZ, 7 And Plaintiff JOSE J. MEJIA, And Putative Class Members 8 IN THE SUPERIOR COURT OF CALIFORNIA 9 IN AND FOR THE COUNTY OF SACRAMENTO 10 JOSE J. MEJIA, an individual; MIGUEL Case No.: 34-2016-00190824-CU-OE-GDS OSUNA, an individual; and OSCAR J. 11 ALMAZAN-MARTINEZ, an individual, on PLAINTIFFS' COMBINED REPLY behalf of themselves, and on behalf of others BRIEF IN SUPPORT OF MOTION 12 similarly situated. FOR CLASS CERTIFICATION 13 Plaintiffs, Date: Sept. 14, 2017 14 Time: 9:00 a.m. Dept. 54 15 ROUSSOS CONSTRUCTION, INC., a Califomia corporation; MATTHEW NOTICE TO DEFENDANTS: Pursuant 16 HAWKINS, dba FOCUS FLOORING, a sole to Local Rule 1.06(A), the court will make a proprietorship; FOCUS FLOORING, INC., a tentative mling on the merits ofthis matter 17 Califomia corporation; MICHAEL CHAVEZ by 2:00 p.m., the court day before the dba FLOORS UNLIMITED and/or dba MC hearing. The complete text of the tentative 18 FLOOR COVERING, a sole proprietorship; J. mlings for the department may be TRINIDAD NINO dba NINO'S CARPET, a downloaded off the court's website. If the 19 sole proprietorship, NICHOLAS SPERIS, an party does not have online access, they may individual, and DOES 1 through 100, inclusive. call the dedicated phone number for the 20 department as referenced in the local Defendants. telephone directory between the hours of 21 2:00 p.m. and 4:00 p.m. on the court day before the hearing and receive the tentative 22 mling. If you do not call the court and the opposing party by 3:00 pm the court day 23 before the hearing, no hearing will be held. 24 Complaint Filed: Oct. 23,2015 25 Cross-Complaint Filed: Oct. 28, 2016 AND RELATED CROSS-ACTION. Trial Date: Jan. 29, 2018 26 27 28 REPLY ISO MOTION FOR CLASS CERTIFICATION CASE NO. 34-2016-00190824-CU-OE-GDS TABLE OF CONTENTS 2 Pg| 3 I. REPLY ARGUMENT l 4 A. The Misclassification Inquiry is Suitedfor Class-Wide Disposition 1 5 1. Roussos' Argument Re Misclassification 1 6 2. Hawkins' Argument Re Misclassification 1 7 Plaintiffs' Claims Are Suited for Class-Wide Disposition 4 8 1. Roussos'Argument 4 9 2. Hawkins Argument 4 10 Roussos' Relationship to Defendants Is Irrelevant at 11 This Stage 6 12 D. Roussos Is Not Shieldedfrom Liability as a Matter of Law 8 13 E. The Class Is Readily Ascertainable 9 14 F. Plaintiffs' Claims Are Typical 10 15 G. Plaintiffs are Adequate Class Representatives 11 16 H. Class Action is a Superior Means of Resolving This Dispute 12 17 II. CONCLUSION 13 18 19 20 21 22 23 24 25 26 27 28 1 REPLY ISO MOTION FOR CLASS CERTIFICATION CASE NO. 34-2016-00190824-CU-OE-GDS 1 TABLE OF AUTHORITIES 2 Page(s) 3 Cases 4 AU V. U.S.A. Cab Ltd., 5 176 Cal. App. 4th 1333 (2009) 2 6 Benton V. Telecom Network Specialists, Inc., 220 Cal. App. 4th 701 (2013) 7, 8 7 Harris v. Vector Marketing Corp, 8 753 F. Supp. 2d 996 11, 12 9 Jaimez v. DAIOHS USA, Inc., 10 181 Cal.App. 4th 1286 (2010) 6, 11 11 Johnson v. Serenity Transportation, Inc., No. 15-CV-02004-JSC, 2017 WL 1365112 (N.D. Cal. Apr. 14, 2017) 9 12 Jones V. Farmers Insurance Exchange, 13 221 Cal. App. 4th 986 (2013) 11 14 Laird v. Capital Cities/ABC, Inc., 68 Cal. App. 4th 727 (1998), overmled by Reidv. Google, Inc., 50 Cal. 4th 15 512(2010) 16 Martinez v. Combs, 17 49 Cal. 4th 35 (2010) 4, 7,8 18 Noe V. Superior Court, 237 Cal. App. 4th 316 (2015) 1 19 Roman v. Jan-Pro Franchising Int 'I, Inc., 20 No. C 16-05961 WHA, 2017 WL 2265447 (N.D. Cal. May 24, 2017) 7 21 Rose V. City of Hayward, 22 126 Cal. App. 3d 926 (1981) 10 23 Sanders Construction Co., Inc. v. Cerda, 175 Cal. App. 4th 430 (2009) 8 24 Sotelo V. MediaNews Grp., Inc., 25 207 Cal. App. 4th 639 (2012) 2, 6, 8, 10 26 Statutes 27 Califomia Labor Code Section 226.8 1 28 Califomia Labor Code Section 2750.5 8 ii REPLY ISO MOTION FOR CLASS CERTIFICATION CASE NO. 34-2016-00190824-CU-OE-GDS Califomia Labor Code Section 2810.3 8, 9 1 2 Califomia Labor Code Section 3700 3 Califomia Labor Code Section 6300 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 in REPLY ISO MOTION FOR CLASS CERTIFICATION CASE NO. 34-2016-00190824-CU-OE-GDS 1 Plaintiffs JOSE J. MEJIA, MIGUEL OSUNA, and OSCAR J. ALMAZAN-MARTINEZ 2 ("Plaintiffs") hereby submits this COMBINED Reply to ALL of Defendants' Oppositions to 3 Plaintiffs' Motion for Class Certification. 4 I. REPLY ARGUMENT 5 A. The Misclassification Inquiry is Suited for Class-Wide Disposition 6 A pivotal issue in this case is whether Plaintiffs and class members were misclassified as 7 independent contractors. Defendants argue that the misclassification issue is not suitable for class 8 treatment. But Defendants are wrong. 9 1. Roussos' Argument Re Misclassification 10 Roussos contends that Plaintiffs' operative pleading "does not even include a cause of 11 action alleging willful misclassification (i.e., violation of labor Code section 226.8) nor may 12 Plaintiffs pursue such a claim because there is no private cause of action available." Roussos 13 Opp'n 7:9-12. But Roussos misunderstands the law. 14 Plaintiffs are "permitted to enforce section 226.8 through a PAGA claim." Noe v. 15 Superior Court, T i l Cal. App. 4"^ 316, 335 (2015). Plaintiffs seek to do so here, and PAGA does 16 not require class certification. See TAC \ 89 (alleging under the authority of PAGA that 17 "Defendants have violated the Califomia Labor Code, including but not limited to violations of 18 sections ... 226.8"). Therefore, Roussos' cursory argument does not address the actual issue: 19 whether Plaintiffs' misclassification theory, properly advanced, is suitable for class certification. 20 2. Hawkins' Argument Re Misclassification 21 For his part, Hawkins argues "this is not a case where the installer's relationships and/or 22 duties were govemed by a universal policy" suitable for class certification. Hawkins Opp'n 12:8- 23 9; 13:6-12. Hawkins' proof of the lack a "universal policy," is that the Defendant employers did 24 not issue "handbooks or guidelines." Id. But Hawkins fails to submit any admissible evidence on 25 this point. Moreover, Hawkins fails to address Plaintiffs' substantial evidence and argument that 26 all installers do the exact same thing - install vinyl and carpet pursuant to exacting specifications 27 laid out in Roussos' Work Orders. See Memo, of Points and Authorities in Support of Motion for 28 Class Certification 9:1 - 16:5. In effect there is a "universal policy" as evinced by the pattem and 1 REPLY ISO MOTION FOR CLASS CERTIFICATION CASE NO. 34-2016-00190824-CU-OE-GDS 1 practice of the parties. Defendants may not escape liability for violations of the Califomia Labor 2 Code simply because they did not codify their unlawful scheme in a handbook. 3 Hawkins relies on Sotelo v. MediaNews Grp., Inc., 207 Cal. App. 4"" 639 (2012) 4 ("Sotelo") and AU v. U.S.A. Cab Ltd., 176 Cal. App. 4* 1333 (2009) ("Ali") to argue Plaintiffs' 5 misclassification theory is not suitable for class wide disposition. But those cases are inapposite. 6 In Ali, for example, taxi drives alleged they were misclassified as independent 7 contractors. Ali, 176 Cal. App. 4"' at 1349. The evidence, however, showed that the drivers were 8 "not required to use USA Cab's dispatch service," that some of the taxi drivers "independently 9 advertised and promoted their own services on Web sites and in phonebooks, and by giving out 10 business cards and their personal cell phone numbers," that taxi cab drivers had control over the 11 prices they charged their customers, that "USA Cab did not require them to charge customers the 12 standard metered rate," and that taxi drivers "chose to set their own rates, such as flat rates for 13 trips, or rates below the standard metered rate." Id. In other words, on facts entirely different 14 from the facts here, the trial court was satisfied that USA Cab did not exercise pervasive and 15 significant control over the taxi drivers. 16 Similarly, in Sotelo, the trial court "found variance in the 'method of payment' factor 17 because some carriers were paid by a piece rate and some on a buy/sell basis." Sotelo, 207 Cal. 18 App. 4'*' at 658. But here there is no such variance, and Hawkins fails to cite to any evidence that 19 there is. Moreover, the Sotelo court found some plaintiffs "had their own businesses," that some 20 had the opportunity for profit based on entrepreneurial and management skills, etc. Id. at 658 - 21 659. Again, those are not the facts here. Defendants fail to offer any evidence on this issue either. 22 Of note, the Court of Appeal in Sotelo observed that "The conclusions of fact that [a different] 23 court reached upon its record do not compel the trial court here, or us, to reach the same 24 conclusion." Id. at 659. The same is tme here. Just because the Sotelo and Ali courts came to 25 certain conclusions does not mean that those same conclusions must be reached when the facts, 26 here, do not support them. 27 Though Hawkins procured declarations of three individuals apparently to show they were 28 independent contractors, those declarations are woefully inadequate, vague, and irrelevant. Most 2 REPLY ISO .MOTION FOR CLASS CERTIFICATION CASE NO. 34-2016-00190824-CU-OE-GDS 1 significantly, all three declarants fail to declare that they are members of the class, i.e., that they 2 are unlicensedflooring installers who installedflooring pursuant to Roussos Work Orders during 3 the class period. See generally Declaration of James Lick, Sept. 27, 2016; Declaration of 4 Gilberto J. Velesco, Sept. 27, 2016; Declaration of Hermino Gomez, Sept. 28, 2016. There is no 5 mention whatsoever of "floor installation" or "Roussos" or "Roussos Work Orders" anywhere in 6 any ofthe three declarations. And all three declarations were allegedly secured approximately 7 one year ago and not for purposes of this Motion. Moreover, not one of the declarants explain 8 precisely how they exercised control over the manner and means offloor installation, and 9 instead, offer irrelevant conclusions. To the contrary, the evidence here shows Defendants had 10 the right to (and actually did) control the work of the class members using the same policies day 11 in and day out. Chavez Depo. Trans. 20:8-22, 46:16 - 50:23, 51:21 - 52:9, 52:16-22 54:24 - 12 55:7,58:6-13,72:20-73:11; 106:5-11, 107:24- 108:12, 108:20- 109:15, 133:12-16, 157:12- 13 25, 160:13-20, 163:5- 164:3, 183:14-185:25, 187:2-6, 187:18-25, 229:24-25,230:6-9, 230:24- 14 231:1, 231:18-20, 232:8-21, 233:6-10; Hawkins Depo. Trans. 36:12-19, 41:12-15, 60:16-25, 15 66:25 - 67:16, 82:18-13, 86:19 - 87:17, 88:16 - 90:3, 90:13-17, 90:23 - 96:11; 102:5-18, 16 102:24-105:19, 112:22-115:16, 115:22- 116:7, 132:22- 134:20, 137:21 - 138:21, 162:8-12, 17 188:9-19, 194:17 - 195:9, 242:23 - 243:7, 244:20-23, 246:12-19, 249:1-3, 250:8 - 251:15, 18 256:23 - 257:13, 263:24 - 264:2; Nino Depo. Trans. 23:12-17, 24:2-11, 93:15 - 96:19, 96:22 - 19 98:11, 112:20-113:1, 125:9-12, 148:12-14, 149:2-6, 149:15-24, 153:18-154:1; Speris Depo. 20 Trans. 42:1-15, 76:21 - 77:4. Martinez Decl. 8-17, 26-28; Osuna Decl. 13-33, Mejia Decl. 21 4, 6-34, Pasic Decl. I t 14-17, 24, 26, Ex. M - Ex. P, Ex. W, Ex. Y. Plaintiffs have also 22 offered substantial, undisputed evidence of the Borello secondary indicia that supports class 23 certification. Chavez Depo. Trans. 49:3 - 50:23, 87:4-7, 106:24 - 107:3, 108:20 - 109:15, 24 109:22-24, 115:13-21, 144:22-24, 156:18-25, 157:12-25, 160:13-20, 163:5- 164:3; Hawkins 25 Depo. Trans. 115:17-21, 137:21 - 138:21, 165:15-18 188:9-19, 193:7- 194:7, 194:17- 195:9; 26 Nino Depo. Trans. 18:2-4, 102:24- 103:25, 110:15-25; Speris Depo. Trans. 45:10-16; Martinez 27 Decl. 12-4, 6, 8-13, 27-28, 30, 33, 36-37, 40, 41; Osuna Decl. t 3, 6, 15, 32, 42-44; Mejia Decl. 28 12-3, 5-7, 10-11, 16-17, 28, 32-33, 35, 37, 38; Pasic Decl. f 6, Ex. E. Other than citing to cases 3 REPLY ISO MOTION FOR CLASS CERTIFICATION CASE NO. 34-2016-00190824-CU-OE-GDS 1 with facts different from those here. Defendants have offered absolutely no evidence to rebut 2 Plaintiffs' evidence. 3 In any event, it will be the fact finder's task to weigh the types of available common 4 evidence described above and determine whether the class members are controlled by 5 Defendants and whether their work is more like that of an employee or an independent 6 contractor. Plaintiffs have demonstrated, though, that the class members are similarly situated 7 with respect to the Borello and Martinez factors and that common evidence is available that 8 makes a representative proceeding efficient and appropriate. 9 B. Plaintiffs' Claims Are Suitedfor Class-Wide Disposition 10 1. Roussos' Argument 11 Without any substantive analysis whatsoever, Roussos simply concludes that Plainfiffs' 12 wage and hour claims can be pursued only against the employer and that Roussos is not their 13 employer because it does not directly engage them. Roussos Opp'n 7:17 - 20. 14 But under law, Roussos scheme of having Supervisor Defendants hire class members 15 does not shield Roussos from liability for wage and hour violations. Indeed multiple separate 16 entities may be found to be the employer if they either (a) exercise control over the wages, hours 17 or working conditions; or (b) suffer or permit Plaintiffs to work; or (c) engage, thereby creating 18 a common law employment relationship. Martinez v. Combs, 49 Cal. 4'*' 35, 73 (2010). Under the 19 "suffer or permit" prong, "the basis of liability is the defendant's knowledge of and failure to 20 prevent the workfi"omoccurring." Id. at 70. 21 Here, Roussos readily concedes that it suffers and/or permits class members to install 22 floor pursuant to its Work Orders and that it has done nothing to stop their work. See e.g., 23 Artemios "Demis" Roussos Decl. H 14,18. Moreover, though Roussos simply concludes, 24 without analysis, that it does not have the right to control class members under Borello, Plaintiffs 25 have offered substantial evidence to the contrary in its motion papers. In its Opposition, Roussos 26 simply ignores that evidence. But at trial, the jury will likely not ignore the evidence before it. 27 2. Hawkins Argument 28 Hawkins argues that Plaintiffs "fail[ed] to discuss or make a factual showing of any 4 REPLY ISO MOTION FOR CLASS CERTIFICATION CASE NO. 34-2016-00190824-CU-OE-GDS 1 uniform policy to deny putafive members the ability to take rest or meal breaks, or any policy to 2 deny overtime pay." Hawkins Opp'n 15:8-10. 3 To the contrary. Plaintiffs submitted substantial evidence, including Defendants' own 4 discovery responses, to demonstrated Defendants' uniform policy that all but guaranteed that 5 class members would work overtime hours without overtime pay and/or missed rest and meal 6 breaks. See e.g., Mejia's RFA, Set I to Nicholas Speris and Speris Verified Resps., Nos. 10, 12, 7 attached to Pasic Decl. f 21, Ex. T;; Mejia's RFA Set I to Chavez and Chavez Verified Resps., 8 Nos. 15, 16, 19, 27, 28, 49, attached to Pasic Decl. 122,; Ex. U; Mejia's RFA Set I to Nino and 9 Nino's Verified Resps., Nos. 15, 16, 19, 27, 28, 49, attached to Pasic Decl. 123, Ex. V; Hawkins 10 Resps. to RFA, Set 1 and Hawkins 2nd Am. Resps. to Form Interrogs., Set I., No. 17.1 re RFA 11 Nos. 16, 20, 28, attached to Pasic Decl. 1| 24, Ex. W; Roussos Verified Resps. to Mejia's RFA, 12 Set I, and Roussos Verified Resps. to Mejia's Form Interrogs., Set I, No. 17.1 attached to Pasic 13 Decl. t 25, Ex. X. For example. Plaintiffs presented evidence that class members were required 14 to show up to Roussos warehouse between 6:30 and 7 am because, per Roussos' express 15 instmcfion "load up is between 7 a.m. and 8:00 a.m."; that as a matter of uniform pracfice 16 Defendants pay "per piece" rather than by the hour; and that Defendants, as a matter of practice 17 do not pay overtime and leave it up to the installers to take meal and rest breaks. Pasic Decl.t 15, 18 Ex. N; Hawkins Depo. Trans. 41:12-15, 60:16-25, 94:2-19, 263:5 - 264:2; Chavez Depo. Trans. 19 58:6-13, 133:12-16; Nino Depo. Trans. 23:12-17, 64:1-3; Martinez Decl. 1| 9, 17, 32-34; Mejia 20 Decl. 127, 29-31; Osuna Decl. 1 15, 25-26, 37-40, Mejia's RFA, Set I to Nicholas Speris and 21 Speris Verified Resps., Nos. 10, 12, attached to Pasic Decl. f 21, Ex. T;; Mejia's RFA Set I to 22 Chavez and Chavez Verified Resps., Nos. 15, 16, 19, 27, 28, 49, attached to Pasic Decl. 122,; 23 Ex. U; Mejia's RFA Set I to Nino and Nino's Verified Resps., Nos. 15, 16, 19, 27, 28, 49, 24 attached to Pasic Decl. f 23, Ex. V; Hawkins Resps. to RFA, Set I and Hawkins 2nd Am. Resps. 25 to Form Interrogs., Set I., No. 17.1 re RFA Nos. 16, 20, 28, attached to Pasic Decl. f 24, Ex. W; 26 Roussos Verified Resps. to Mejia's RFA, Set I, and Roussos Verified Resps. to Mejia's Form 27 Interrogs., Set I, No. 17.1 attached to Pasic Decl. 125, Ex. X). In fact, in his verified discovery 28 responses, Hawkins conceded this uniform policy: 5 REPLY ISO MOTION FOR CLASS CERTIFICATION CASE NO. 34-2016-00190824-CU-OE-GDS It was up to the Contractors to take rest and meal breaks. THE CONTRACTORS 1 WERE PAID ON A PIECE RATE BASIS, IT IS UP TO THEM TO TAKE BREAKS AND LUNCHES, IF THEY SO CHOOSE. Further, [Hawkins] 2 contends that Plaintiffs PIECE RATE BASIS PAY included saidfimeperiods for rest and meal breaks. 3 4 Hawkins Response to Form Interrogatory No. 17.1 re RFA No. 16, attached to, Plaintiffs Index 5 of Exhibits to Motion for Class Certification ("Ps' Index"), Ex. T. 6 Thus, Plaintiffs made a factual showing that Defendants characterized them as 7 independent contractors, failed to pay them time and a half for overtime hours they worked, and 8 used a pay stmcture that resulted, at least some ofthefime,in a failure to pay for all hours 9 worked. Thus, this case is more Uke Jaimez v. DAIOHS USA, Inc., 181 Cal. App. 4* 1286 10 (2010), where Plainfiffs "actually presented the court with theory of recovery that specified the 11 uniform policies and practices ofthe defendant that acted to establish liability for overtime." 12 Sotelo, 207 Cal. App. 4* at 654. Defendants do not dispute these uniform policies, and instead, 13 confuse liability with certificafion. For purposes of certification, however, Plaintiffs only have to 14 show that these policies similarly affected them and members of the putative class. Plaintiffs 15 have done so here. 16 C. Roussos' Relationship to Defendants Is Irrelevant at This Stage 17 Roussos and Hawkins then argue that the question of Defendants' relationship to each 18 other is yet another bar to class certification. For its part, Roussos argues that "if certification is 19 granted, the Borello multi-factor test will need to be applied at the very least at two levels:" (1) 20 by each of the Named Defendants to each of the Plaintiffs; and (2) by Roussos "to each of the 21 five Subcontractor Defendants, to establish whether Subcontractor Defendants are employees or 22 independent contractors of RCl." Roussos Opp'n 9:5-10. Hawkins contends that "Plaintiffs' 23 Mofion assumes the existence of a joint employer relafionship, but ignores the fact that 24 determining whether or not this type of relationship existed requires a fact-intensive analysis of 25 the relationships between Roussos, Hawkins, Chavez, Nino, and Speris, and the flooring 26 installers, which cannot be determined by common proof" Hawkins Opp'n 10:23-26. 27 That Defendants' argument lack merit is evidenced by Roussos' failure to cite to any 28 authority in support of its argument, as well as Hawkins' reliance on an irrelevant summary 6 REPLY ISO MOTION FOR CLASS CERTIFICATION CASE NO. 34-2016-00190824-CU-OE-GDS 1 judgment case that has in any event been overmled. See Roussos Opp'n 9:3-10; Hawkins Opp'n 2 10:20-22; Lairdv. Capital Cities/ABC, Inc., 68 Cal. App. 4^^ 727 (1998), overruled by Reid v. 3 Google, Inc., 50 Cal. 4^^ 512 (2010). In fact, both Roussos and Hawkins misunderstand the law. 4 Contrary to what Roussos contends, Califomia law does not require Plainfiffs to establish 5 that Roussos is also the employer of Supervisor Defendants. Instead, the issue at certification 6 stage is whether these multiple entities can be deemed employers of the putative class. That issue 7 is examined under Martinez. See e.g., Roman v. Jan-Pro Franchising Int'l, Inc., No. C 16-05961 8 WHA, 2017 WL 2265447, at *3 (N.D. Cal. May 24, 2017). In Martinez, the Califomia Supreme 9 Court held that the definition of "employer," which encompasses any enfity that (a) "exercise[s] 10 control over the wages, hours or working conditions, or (b) suffers or permits [another] to work, 11 or (c) engage[s], thereby creating a common law employment relationship," "has the obvious 12 utility of reaching situations in which multiple entities control different aspects of the 13 employment relationship, as when one entity, which hires and pays workers, places them with 14 other entifies that supervise that work." Martinez v. Combs, 49 Cal. 4* at 59 (emphasis added). 15 Evidence presented by Plaintiffs shows that, at the very least, Roussos exercised control 16 over the hours and working conditions of Plaintiffs by requiring them to arrive to Roussos 17 warehouse daily by no later than 7:00 am; requiring them to install carpet and vinyl pursuant to 18 exacting instmctions laid out in its Work Orders, including dates and times, and requiring them 19 to engage in daily warehouse cleaning activities, without pay. Hawkins Depo. Trans. 41:12-15, 20 60:16-25, 91:10-12, 94:2-19, 102:5-18, 263:5-264:2; Chavez Depo. Trans. 58:6-13, 106:5-11, 21 133:12-16; Nino Depo. Trans. 23:12-17, 64:1-3; Martinez Decl. 9, 17; Osuna Decl. t t 15, 17, 22 25-26; Mejia Decl. t 8; Pasic Decl. t t l 5 , 16, 26, Ex. N, O, Y. Likewise, unlike in Martinez, 23 Roussos here suffers and permits class members to work because it knows that class members 24 are installing pursuant to its Work Orders, has the power to prevent them from doing so, but has 25 done nothing about it. Speris Depo. Trans. 76:21 - 77:4; Artemios "Demis" Roussos Decl. t t 14 26 18. 27 Thus, whether Roussos is an employer of class members is an issue that should be 28 answered only once. See e.g., Benton v. Telecom Network Specialists, Inc., 220 Cal. App. 4'*' 7 REPLY ISO MOTION FOR CLASS CERTIFICATION CASE NO. 34-2016-00190824-CU-OE-GDS 1 701, 730-731 (2013) (holding "trial court could not deny class certification of technicians' 2 overtime claims [because], to the extent company was a joint employer, it had a duty to ensure 3 that all of its employees were being paid overtime but violated that obligafion by failing to adopt 4 procedures verifying that the staffing companies were in fact paying overtime"); see also Sotelo, 5 143 Cal. App. 4"^ at 661 (holding "[u]nder Martinez, then, the trial court should not have limited 6 itself to the test for a common law employment relationship" in denying class certification). 7 D. Roussos Is Not Shielded from Liability as a Matter of Law 8 Roussos argues that as a matter of law, it has no liability for wage and hour violations as 9 against licensed subcontractors. Roussos Opp'n 10:19-22. But the instant Motion is not one for 10 summary judgment. And Plaintiffs are not asking for a determination, as a matter of law, that 11 Roussos is the employer of class members. Rather, Plaintiffs contends that common proof 12 establishes Roussos' employer status under Martinez and Borello. 13 Roussos cites to Sanders for support. Roussos Opp'n 10:27-28. But Sanders is not 14 especially helpful to Roussos. It stands for the contrary proposition that "Labor Code section 15 2750.5 operates to conclusively determine that a general contractor is the employer of not only 16 its unlicensed subcontractors but also those employed by the unlicensed subcontractors." 17 Sanders, 175 Cal. App. 4*^ at 434-435. 18 Referring to Labor Code Section 2810.3, Roussos argues it is not a joint employer as a 19 matter of law because it is a general contractor utilizing licensed subcontractors. Roussos Opp'n 20 11:8- 14. But almost the exact opposite of what the Labor Code actually says. Roussos' blatant 21 misrepresentation of that code section is alarming and a violation of a lawyer's duties of candor 22 to the court. See Cal. R. Prof. Conduct 5-200 ("In presenting a matter" to the court, a lawyer 23 "shall not seek to mislead the judge . . . by . . . false statement of fact or law . . . . " ) . Califomia 24 Labor Code Secfion 2810.3 actually reads: 25 (b) A client employer shall share with a labor contractor all civil legal responsibility and civil liability for all workers supplied by that labor contractor 26 for both ofthe following: 27 (1) The payment of wages. 28 8 REPLY ISO MOTION FOR CLASS CERTIFICATION CASE NO. 34-2016-00190824-CU-OE-GDS (2) Failure to secure valid workers' compensation coverage as 1 required by Section 3700. 2 (3) A client employer shall not shift to the labor contractor any legal duties or liabilities under Division 5 (commencing with secfion 3 6300) with respect to workers supplied by the labor contractor. 4 Though less than ten courts have actually examined this provision, one court aptly noted, 5 "the various legislative committees that examined the bill expressed concem generally about 6 client employers evading liability for wage-and-hour and working condition violations for 7 subcontracted workers given the increased prevalence of this type of working arrangement in 8 Califomia." Jb/jn^on v. Serenity Transportation, /«c.,No. 15-CV-02004-JSC, 2017 WL 9 1365112, at *23 (N.D. Cal. Apr. 14, 2017) (emphasis added). 10 Secfion 2810.3, thus, supports Plainfiffs' theory that Roussos cannot escape liability for 11 its Labor Code violations simply by devising a fraudulent business scheme that relies wholly on 12 subcontracted work. In any event, to the extent Roussos contends it is not an employer as a 13 matter of law, that argument should be raised in a motion for summary judgment, not here. 14 Roussos has not filed such a motion. 15 E. The Class Is Readily Ascertainable 16 Hawkins argues that a "fact sensitive analysis [is required] of whether each and every 17 putative class member understood this complicated theory that they were working for joint 18 employers." Hawkins Opp'n 7:3 - 7. But no law requires class members to understand any 19 complicated theory of liability in order to enforce their rights under the Labor Code. Nor does 20 Plainfiffs' class definition assume a "joint employer relationship." All that the prospective class 21 members are required to answer is whether they are unlicensed flooring installers who installed 22 flooring pursuant to Roussos Work Orders during a specified time period. 23 Then Hawkins argues that the class definition is overly broad because it includes 24 "unknown installers who performed work only for Roussos and had absolutely no connection to 25 any of the Subcontractor Defendants." Hawkins Opp'n, 8:10-12. But this argument works only if 26 one ignores the facts of this case. In this case, there were no such installers. Roussos' scheme, as 27 conceded to in its papers, was to subcontract all of its floor installation work to its "first tier 28 subcontractors," who then further subcontracted to class members. Thus, there are no "unknown' 9 REPLY ISO MOTION FOR CLASS C E k T l P I t A T I O N CASE NO. 34-2016-00190824-CU-OE-GDS 1 installers. 2 "Class members are 'ascertainable' where they may be readily identified without 3 unreasonable expense or time by reference to official records." Rose v. City of Hayward, 126 4 Cal. App. 3d 926, 932 (1981). "If necessary to preserve the case as a class action, the court itself 5 can and should redefine the class where the evidence before it shows such a redefined class 6 would be ascertainable." Sotelo, 207 Cal. App. 4* at 651. Thus, to the extent there is any issue 7 with respect to the ascertainability of the class, which, in this case, there is none, the Court 8 should assist plaintiffs in redefining the class in order to preserve this case as a class action. If 9 necessary, the court could help to redefine the class by limiting the definifion to those class 10 members already identified by Defendants in verified discovery responses, or by creafing five 11 subclasses of those installers who worked pursuant to Roussos work orders under (1) Nino, (2) 12 Chavez, (3) Hawkins, and (4) Speris. See Sotelo, 207 Cal. App. 4*^ at 651 (noting "limiting the 13 class to those identified from respondents' records would result in an ascertainable class; indeed, 14 a list had already been generated during discovery"). 15 Hawkins argues each subclass is not sufficiently numerous. Hawkins Opp'n 9:3-6. But 16 each Defendant Subcontractor ufilized mulfiple installers - in Hawkins case as many as 4\.See 17 e.g., Hawkins First Amended Response to Special Interrogatories, Set I, No. 1, attached to, Ps' 18 Index, Ex. J. 19 F. Plaintiffs' Claims Are Typical 20 Hawkins argues Plaintiffs' claims are "unique" and other workers might not have been 21 "similarly . . . injured." Hawkins Opp'n 17:8-14. But the evidence demonstrates that there is 22 nothing "unique" about Plaintiffs' experiences at Roussos. 23 To the contrary. Defendants own discovery responses and deposition testimony evinces 24 uniform employment practices and policies affecting all class members equally across the board, 25 and in the same exact manner as set out in Plaintiffs' declarations. See e.g. Artemios "Demis" 26 Roussos Decl. tt3-4, 8, 12, 14. 27 Hawkins submits declarations allegedly showing that three workers do not agree with 28 Plaintiffs' allegations. Hawkins Opp'n 12-14. But none of these declarants state that they are 10 REPLY ISO MOTION FOR CLASS CERTIFICATION CASE NO. 34-2016-0C190824-CU-OE-GDS 1 prospective class members, i.e., that they are unlicensedfloorinstallers who work(ed) pursuant 2 to Roussos' Work Orders during the specified period. For that reason alone the contents of the 3 declarafions must be struck. Finally, the contents of these declarafions are largely conclusory and 4 do not prove that Plainfiffs' claims are somehow atypical. To the contrary, the vast cache of 5 evidence suggests that these declarants' opinions—not the Plaintiffs' opinions—are atypical. 6 G. Plaintiffs are Adequate Class Representatives 7 All three defendants contend that Plaintiffs are not adequate class members. See e.g., 8 Hawkins Opp'n 17:15 - 19:2; Chavez Opp'n 4:9 - 5:18; Roussos Opp'n 13:8-15. But these 9 arguments find no support in the applicable law. 10 The adequacy of the class representatives is not a reason to deny certification. "The lack 11 of an adequate class representative . . . does not justify the denial of the class certification 12 motion. Instead, the trial court must allow Plaintiffs an opportunity to amend their complaint to 13 name a suitable class representative." Jones v. Farmers Insurance Exchange, 221 Cal. App. 4* 14 986, 999 (2013). Moreover, there is simply no evidence that any of the Plaintiffs are inadequate 15 class representafives. 16 First, Defendants fail to cite to any Califomia law suggesting that the issues raised 17 regarding Plaintiff Osuna's "credibility" warrant the Court's denial of Plaintiff s request for class 18 certification. Hawkins cites to Jaimez, in which the proposed class representative was found 19 inadequate because he lied on his employment application about a felony conviction and 20 incarcerafion. Jaimez v. DAIOHS USA, Inc., 181 Cal. App. 4'*' 1286, 1296 (2010). Defendants do 21 not contend that Osuna lied to them or that he was convicted of a felony or incarcerated or that 22 he admitted it is okay to lie in order to procure employment. 23 Second, "[c]redibility problems do not automatically render a proposed class 24 representative inadequate." Harris v. Vector Marketing Corp, 753 F. Supp. 2d 996, 1015. "There 25 is 'inadequacy only where the representafive's credibility is questioned on issues directly 26 relevant to the litigation or there are confirmed examples of dishonesty, such as a criminal 27 conviction for fraud." Id (intemal citations omitted). "[G]enerally, unsavory character or 28 credibility problems will not justify afindingof inadequacy unless related to the issues in the n REPLY ISO MOTION FOR CLASS CERTIFICATION CASE NO. 34-2016-00190824-CU-OE-GDS 1 lifigafion." Id. 2 Here, at his deposifion, Osuna expressed confusion between his use of an Individual 3 Taxpayer Identification Number ("ITfN") and Social Security number making Defendants' 4 arguments additionally unpersuasive. See e.g., Osuna Depo Trans. 44:16, attached to, De La 5 Riva Decl., 13, Ex. B. Confusion as to tax status is not the same as dishonesty. Defendants offer 6 no evidence that Osuna's use of ITIN and social security numbers for employment and/or 7 immigration purposes is illegal or unsavory. Instead, they throw any potenfially scandalous 8 matter at the Court in hopes that something will stick. This does not. 9 Defendants also argue that Osuna was found to be an employer in another case. But the 10 Labor Commissioner's finding that Osuna was an employer of Jose Montiel, who is not a 11 member of the class, is irrelevant. Osuna can be simultaneously Defendants' employee while 12 employing a third party. There is nothing logically nor legally inconsistent with this 13 arrangement. 14 Finally, Defendants argue Plaintiffs are "mere puppets" of their attomeys. But there is no 15 evidence of this. And making scurrilous accusations at counsel and the parties mns contrary to 16 the State Bar's Rules of Civility. See Califomia Attomey Guidelines of Civility and 17 Professionalism § 4(c) ("An attomey should not disparage the intelligence, integrity, ethics, 18 morals or behavior o f . . . other counsel, parties or participants when those characteristics are not 19 at issue."). As far as the facts go, each Plaintiff submitted extremely detailed declarations stating 20 under penalty of perjury that each Plaintiff had no interest antagonisfic to the class, that each had 21 been actively involved in this litigation and in regular contact with his counsel, and that each 22 took his responsibility as a class representative seriously. See e.g., Osuna Decl. 148; Mejia Decl. 23 140; Almazan-Martinez t 44. Plaintiffs are, thus, adequate class representatives. 24 H. Class Action is a Superior Means of Resolving This Dispute 25 Finally, Hawkins argues that a class action is not superior because there is a 26 "predominance of individual issues." Hawkins Opp'n 20:17-18. But other than simply repeating 27 his mantra that there are "countless individual inquiries," Hawkins does not actually say what 28 those individual inquiries might be. In fact, even Hawkins concedes that the key issue in this case 12 REPLY ISO MOTION FOR CLASS CERTIFICATION CASE NO. 34-2016-00190824-CU-OE-GDS 1 is whether Defendants misclassified the class members. Hawkins Opp'n 20-22. 2 IL CONCLUSION 3 For all reasons stated in Plaintiffs' moving papers, and further set forth above. Plaintiffs 4 respectfully request that the Court GRANT this Motion, certify the Class, appoint Plaintiffs as 5 Class Representatives, and appoint Wood Robbins, LLP as Class Counsel. 6 7 Dated: September 7,2017 WOOD ROBBINS, LLP 8 By: /s/Leyla Pasic 9 Leyla Pasic 10 Attomeys for Plaintiffs JOSE J. MEJIA, MIGUEL OSUNA, and OSCAR J. 11 ALMAZAN-MARTINEZ and the Putative Class 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13 REPLY ISO MOTION FOR CLASS CERTIFICATION CASE NO. 34-2016-00190824-CU-OE-GDS