Order: ALI MALIK et al VS. CITIGROUP et al

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SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

Document Scanning Lead Sheet
Oct-14-2010 10:08 am

Case Number: CGC-07-465171
Filing Date: Oct-14-2010 10:08
Juke Box: 001 Image: 03002254
ORDER

ALI MALIK et al VS. CITIGROUP et al

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Plaintiff,

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Defendants,

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SUPERIOR COURT OF CALIFORNIA.
|
COUNTY OF SAN FRANCISCO
DEPARTMENT NO. 305

ALI MALIK, and all others similarly situated,

CITIGROUP, dba CITIGROUP, INC., and/or
CITIBANK, NA and DOES 1 through 100, inclusive,

NON
B YN

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26 || Plaintiff. Lisa M. Bertain, Esq., and Christopher A. Stecher, Esq., of Keesal, Young & Logan
27! || appeared on behalf of defendant Citibank, N.A.. Having read and considered the materials submitted

28 |! by the parties and having heard argument of counsel, it is hereby ordered that plaintiff's motion for

On September 1, 2010, in Department 305, of the above-entitled Court, the motion for class
certification brought by plaintiff Ali Malik came on regularly for hearing before this Court. Daniel

H. Qualls, Esq., and Robin G. Workman, Esq., of Qualls & Workman, L.L.P. appeared on behalf of

-1-

FELED

nsf Bat Francisco

OCT 1 4 borg

CLERK OF THE GouRT
Deputy Clerk

No. CGC 07-465171

ORDER DENYING PLAINTIFF’S
MOTION FOR CLASS
CERTIFICATIONDATED: OCTOBER 14, 2010

DbeEb eres

“JUDGE JOHN E. MUNTER
JUDGE OF THE SUPERIOR COURTSUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
BEFORE THE HONORABLE JOHN E. MUNTER, JUDGE PRESIDING
DEPARTMENT NUMBER 305

---000---
ALI MALIK,,

Case No. 07-465171
MOTION

Plaintiffs,
vs.
CITIGROUP, et al.,,

Defendants.

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Reporter's Transcript of Proceedings
Wednesday, September 1, 2010
APPEARANCES OF COUNSEL:
For Plaintiffs:

QUALLS & WORKMAN
244 California STreet, Suite 410
San Francisco, CA 94111
BY: DANIEL QUALLS, ESQ.
ROBIN WORKMAN, ESQ.

For Defendants:

KEESAL, YOUNG & LOGAN

450 Pacific Avenue

San Francisco, CA 94133

BY: LISA BERTAIN, ESQ.
CHRISTOPHER STECHER, ESQ.

GOVERNMENT CODE ° 69954(d): "ANY COURT, PARTY, OR PERSON WHO
HAS PURCHASED A TRANSCRIPT MAY, WITHOUT PAYING A FURTHER FEE TO

PURSUANT TO COURT ORDER OR RULE, OR FOR INTERNAL USE, BUT SHALL
NOT OTHERWISE PROVIDE OR SELL A COPY OR COPIES TO ANY OTHER
PARTY OR PERSON."

Reported by: Rhonda L. Aquilina, CSR #9956, RMR, CRR

TS TR TT a a TTT LT TTR:27
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Official ReporterPage 3 }

Wednesday, September 1, 2010 1:30 p.m.

THE COURT: We can go on the record. Please call the case.

THE CLERK: Calling the case of Ali Malik versus Citigroup,
Case No. CGC-07-465171.

Counsel, please state your appearances for the record.

MR. QUALLS: Good afternoon. Daniel Qualls appearing on
behalf of plaintiffs.

MS. WORKMAN: Robbin Workman appearing on behalf of the
plaintiffs. Good afternoon, Your Honor.

MS. BERTAIN: Good afternoon, Your Honor. Lisa Bertain
appearing on behalf of Citibank, and for the record Citigroup
has been dismissed.

MR. STECHER: And good afternoon, Your Honor. Christopher
Stecher also here for defendant.

THE COURT: Okay. And good afternoon. We're here’ on two
matters, Motion for Leave to File Second Amended Complaint and a
Motion for Class Certification.

I'm going to give you a tentative on the motion for leave to
file a second amended complaint and then ask you whether you
want to argue it or you want to submit on the tentative.

The tentative is to grant that motion. It is in the
interest of justice to do so in order that the Court may
appropriately evaluate the accompanying motion for class
certification, also there is no prejudice to the defendant from
allowing the amendment. That's the tentative.

Does anybody want to argue on the tentative or do you want

to submit?Page 4 |
MR. QUALLS: Plaintiff will submit.

MS. BERTAIN: The defendant will submit.

THE COURT: All right. So the tentative is the ruling, and
I have a form of order that I am going to sign. It merely
states this: The matter came on regularly for hearing before
The Honorable John E. Munter, which form was taken I think in
part from that submitted by Mr. Qualls, otherwise I would have
just said Judge John £. Munter rather than The Honorable -- but
I have it here -- in Department 305 of the San Francisco County
Superior Court on September 1, 2010 at 1:30 P-m. Appearances
were as noted, or I should Say, "and" appearances were as noted
on the transcript after briefing and argument. It is hereby
ordered that plaintiffs! motion for leave to file a seconded
amended complaint is granted. The Court finds good cause exists
to permit the amendment sought and the amendment requested will
not cause prejudice to the defendant . Any objection to the form
of that?

MR. QUALLS: No, your Honor.

MS. BERTAIN: No, your Honor.

THE COURT: Okay. So that -- I'm going to sign that then
now, and Craig, I just added a word "and" on the first Page, and
we can file it.

Let me ask you, you can pick up an endorsed copy today after
the hearing here, so given that do you wish to waive any
requirement that the Court has to serve that on you by mail?

MR. QUALLS: Yes, we'll waive the requirement .

MS. BERTAIN: And we'll waive.

THE COURT: Thank you. So you can pick up the endorsed andPage 5]
conformed copies immediately after today's hearing.

So let's turn to the motion for class certification.
Anybody that wishes to argue that may proceed.

MR. QUALLS: Your Honor, for the plaintiff we have made our
very best arguments in our briefs. It's been briefed
extensively. I left nothing out that I can think of to
elaborate, so I am prepared to submit on the basis of the
materials submitted to the Court, unless the Court has any
questions of plaintiff.

THE COURT: No, I don't have any questions, so when you say
you're prepared to submit, does that mean you do submit? —

MR. QUALLS: Yes, sir. I do submit.

THE COURT: All right. Although let me ask defense counsel,
because if they do make an argument, you'll have an opportunity
to respond.

MS. BERTAIN: Thank you, Your Honor. Mr. Stecher will be
making a response, first of all, with respect to our objection
to the request for judicial notice in the response to the
sur-reply for which we -- the plaintiff was allowed the final
word in terms of the briefing, and so since we didn't have an
opportunity to respond to the response to the sur-reply, we'd
like to put our objection on the record with respect to that
second request for judicial notice.

THE COURT: Is this the one that has 11 items on it?

MR. QUALLS: Your Honor, I believe the supplemental request
for judicial notice had three items.

THE COURT: Let me just -- what's the date on that request?

MR. QUALLS: It's August 3rd.Page 6 |

THE COURT: Well, one of them asked me to take judicial
notice of a federal case.

MS. BERTAIN: We have no objection to the federal case in
terms of -- but I'll let mr. Stecher address the objection --
the Court is right, and then I do have --

THE COURT: There's no objection to my taking judicial
notice of a federal district court decision, right?

MS. BERTAIN: Correct.

MR. STECHER: Correct, Your Honor.

THE COURT: That's item 2. Item 1 asks me to take judicial
notice of a regulation issued by the Division of Labor Standards
Enforcement, and you're going to tell me that's irrelevant or
something or what are you going to tell me about that?

MR. STECHER: Your Honor, it's a proposed regulation. It is
a regulation that did not go into effect. The bases for the
objection are that this was something that was submitted for the
first time in the sur sur-reply brief. It was -- there was
nothing that prevented the plaintiff from attaching it toa
moving paper or any subsequent pleadings before we had a chance
to respond to it. This is a document that, as I mentioned, it
is a proposed rule. It is not something that -- actually, it
was adopted as a regulation either by the DLSE or the Department
of Industrial Relations, and therefore I don't believe that the
Evidence Code Provides for judicial notice of that type of a
document .

The third and final document that the plaintiff requested

judicial notice of in his response to the sur-reply brief is a

legislative resolution. It's a concurrent resolution by the27
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Page 7 |

assembly. It is not something that was signed into law by the

governor, and it does not have the force of law.

As with the

first item, this was submitted for the first time in response to

the sur-reply brief,

and we would object on those grounds. We

also object on the grounds that it is not something that is

appropriate. for judicial notice.

THE COURT:

the motion or do you want to submit on it?
MS. BERTAIN:
like to make with respect to the motion.

With respect to the motion itself, Your Honor,

Okay. Do you want to argue any other aspect of

Yes, I think we have a few comments that we'd

as you know,

on August 3rd that was the last of the briefing that was

submitted by the Plaintiff,

and so I'd like to address a few

questions that have not to date been responded to by the

plaintiff.

The first question is they have never responded to

the question of how does an alleged illegal policy result in

compliance 95 to 99 percent of the time according to the

Plaintiffs!

own

expert? They have also not responded to the

question of how this Court would try this case as a class action

when the question of liability cannot be answered on a

class-wide basis given the plaintiffs:

and finally, there!

definition of the class;

s been no explanation or plan offered to the

Court with respect to the time period that there were only

manual time records,

when those records were kept in,

a four-year period between 2003 and 2007

according to the evidence that

we've submitted, 400 different locations as to any plan for

identification of individuals within records that are kept in

400 different locations as to who would even be a potentialBH

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class member. The case has been pending for over three years,
and despite extensive discovery, the plaintiff has failed to
come up with evidence of a single widespread policy that would
apply to the class that he's requesting be certified.

Your Honor will recall that in our motion, the hearing on
the motion to strike the class allegations in November of 2008,
the plaintiff said their theory was not that you could simply
look at the records and find a violation. They claimed to Your
Honor that the reason why the motion should be denied is that
they should be allowed discovery because they had a theory and
they articulated their theory that there was a widespread
Practice that applied to all tellers and service officers which
would require each of the tellers and service officers to obtain
specific permission from their manager on a daily basis and that
those managers denied that request. They requested and they
obtained contact information for over 6,000 putative class
members and electric time records with respect to the last two
years or so, and from that they came up with two alleged
violations, a subclass A where they said where the records show
that they worked a six-hour shift and there was no meal period
taken, and a subclass B where they claim that their records
showed that the meal period didn't start until 5.25 hours after
they began their shift. But the evidence that was unearthed
that's not contradicted in any way by the plaintiff, in fact
it's the plaintiff's own evidence, that with respect to his
proposed subclass B, the plaintiffs' own expert examined the
records and according to that examination there would be

compliance over 99 percent of the time; and that with respect toPage 9}
the subclass B, the lunch breaks that started after 5.25 hours,
there was compliance 95 Percent of the time. There was also
undisputed evidence submitted to Your Honor that Citibank had a
legal policy with respect to lunch periods, that there was
nothing illegal on its face, and I think Your Honor found that
at the last hearing and found that there was substantial
evidence submitted by Citibank in Support of that, but that you
couldn't make the ultimate judicial determination at that time
without full discovery or more fulsome discovery.

THE COURT: I didn't make any "findings."

MS. BERTAIN: I understood, Your Honor. I should have said
statement.

In that regard, the plaintiff has not challenged Citibank's
legal policy with respect to its meal periods.

The evidence has been, according to the Plaintiff and the
defendant, that Citibank Managers are responsible for
determining how to provide lunch breaks within their own branch,
that some Managers schedule them and Some managers do not. The
evidence is undisputed that tellers and service officers are
required to record meal breaks and they're required to mark
missed meal breaks, and when they mark those missed meal breaks
they are paid, so that brings us back to what the Plaintiff

contends the evidence shows, that 5 percent of the time lunches

offered as to why that occurred. There's no evidence of any

illegal policy that is applied to those Proposed classes, and so

without that, they come back to their fallback position, and

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Page 10
their fallback position is that it doesn't matter why, because
they claim there's strict liability, but there is not a single
case or statute that says there's strict liability, and in every
published California case where a court has granted a motion for
class certification in a meal break case there has been no
finding that strict liability is the appropriate legal standard.
It's the plaintiffs! burden to meet all of the class
requirements, and the plaintiffs' legal theory is flawed. The
plaintiff hasn't shown an ascertainable class. It hasn't
answered the question of why. It just Says just look at the
records. It hasn't offered any evidence with respect to the
manual time period of how you would go about or how they would
go about identifying those potential class members so that they
would get appropriate notice by the plaintife.

And with respect to the commonality issue, there's no
evidence of a widespread illegal policy as to their proposed
class. The plaintiff has submitted three briefs on the issue
and yet never really addressed that issue.

We also contend that at the end of the day, with respect to
superiority, it comes down to the question of how do you try
this case, because their Proposed class definition does not
answer the question of liability, so if the Court were to grant
class certification of what the plaintiff has requested,
answering that question and gathering those individuals, you
would still need mini trials with respect to those individuals
as to why didn't you mark a lunch break? Did you actually take
your lunch break and forget to write it down? Did someone

Prevent you from taking your lunch break or did you simply

FATT TE a STR. manual records, again, there's been no plan that's been offered

Page 11]
decide you'd rather go home a little earlier? There were a
multitude of questions that would have to be asked of those
individuals. And even with respect to the individuals they
claim that records show that there is a missed meal period, it's
a very, very small number spread across, what they say is 3,000
people, and so you would then be looking at individuals who the
vast majority of the time, even within that class, would have
received a lunch break which they claim is in compliance, so we
urge the Court to deny class certification of this class.

And with respect to the time period that there are the

for how the plaintiff is even going to identify those potential
class members, so with that argument, I'd be happy to respond to
any points raised by Plaintiff, but we would request that the
motion be denied.

THE COURT: Mr. Qualls.

MR. QUALLS: Yes, just very briefly. The plaintiff submits
in its briefs a legal claim based on interpretation of
Section 512, Section 226.7, and Industrial Welfare Commission
Order 7-200 Section lit(a) and (b). The legal theory with
respect to the plaintiff and the proposed class, which is common
and uniform to every single member of the class with respect t
the legal theory is that submission of records and these records
in this case are uniformly submitted in a way that's common to
every class member, whereby the employer is informed and has.
actual knowledge of the absence of a meal period, give rise to
liability for Payment of an additional hour of compensation.

That is based on, among other things, Section 226.7 which adopts

TTS TOE ITPage 12 |
the requirements for meal periods as set forth in the IWC Wage
Orders, and the Iwc Wage Orders, which in turn specify that no
employer shall employ an employee without a meal period as
specified by the Wage Order, and the Wage Orders which define
the term "employ," which means to suffer or permit, suffer or
permit as a matter of law means with knowledge either actual or
constructively as defined in addition by the Supreme Court in
the Meline decision.

We have submitted evidence that's common to the class under
a common legal theory of liability for the absence of a meal
period where such employees were employed by Citibank without a

meal period. In addition, we have submitted common evidence

statute and give rise to liability by the defendant for an
additional hour of compensation, as specified by Section 226.7.
That analysis in addition is based, at least in part, upon Labor
Code Section 226.7 which adopts Iwc regulation with respect to
meal periods, and in turn the Iwc regulation specifies that meal
periods shall take place after no more than a five-hour work
period. So the claims presented on behalf of the class are
based on common legal issues which predominate and are based on
common facts which predominate as to each class member, and we
believe we've more than met our burden to demonstrate
predominant commonality as to both legal theories. That
Citibank disagrees with our legal theory and our assessment of
the law is a matter for trial. That's a merits question. It's

not uncommon to try a case where both a legal issue with respectTN ND UYU ®F WDB Hw

Page 13
to liability is disputed and factual issues with respect to
liability are disputed. That's a merits question, and that's
not a basis for denial of class certification.

With respect to the manual time records, we have met our
burden to demonstrate the class membership is ascertainable.
That is the burden that we bear for purposes of class
certification, and that is true whether the records are
electronic or whether the records are manual. We're under no
requirement today to identify for the Court exactly who are
members of the class. The standard is not who are members of
the class for purposes of class certification with respect to
individual identity. The standara is if the class identifies a
group of unnamed plaintiffs by describing a set of common
characteristics submitted to allow a member of the group to
identify himself as a member of the group as described, and that
would be the Harper decision, and we have met that standard.

With respect to a plan, I'm not certain what counsel is
referring to, but if counsel is referring to a plan with respect
to class notice, we have a proposal with respect to class notice
as to class membership. The Proposal is that class notice be
given to 6,617 tellers and service officers. The class notice
can simply provide that if you meet the definition of the class,
as set forth in the class notice, you are a class member. This
is not an uncommon form of notice in cases. It's commonly used
in retail class cases and in securities cases. Of the class,
potential class of 6,617 tellers and service officers know from
the electronic records that 3,169 persons, individuals, based on

electronic records, meet the class definition. If the Court is

LT TNT ETT 7 ST a a ETT TEPage ia}
to require the plaintiff or the parties to identify by
individual those additional tellers or service officers who have
records which meet the class definition, that is a task that can
be performed in a relatively straight forward manner, and I have
ideas as to how that would be undertaken, which I'm happy to
share with the Court, but for purposes of class certification
today, and whether the Plaintiff has met its requirements for
class certification with respect to ascertainability, we have
met those requirements.

With respect to notice questions and identification to class
members, we are fully prepared to provide the Court with our
suggestions as to identification of specifically of potential
class members from manual records. It would essentially be,
Your Honor, an exercise whereby what I would envision a team
tasked with a criteria, as set forth by this Court, to simply
review manual records. There would be some time involved, but
by my rough calculation, if one team of three such persons
working on an eight-hour shift could be expected to review 20
records per hour, then that task would require approximately
seven days by my calculation. Tf I'm over optimistic and it's
ten records per hour, then it's 14 days, and so on and SO on, so
we're fully prepared to propose a specific plan for that purpose
should the Court deem it appropriate.

My first suggestion would simply be to provide notice to all
6,617 tellers and service officers with the provision that if
they are -~+ if they are persons that fall within the definition
of the class, as set forth in the notice, then they are being

provided notice for the class proceedings, and that's not anND WU PB WwW pH

Page 15 |
uncommon form of notice. And I have nothing further.

THE COURT: Let me ask you to address the evidentiary issue
on the request for judicial notice. They argue that it comes
late in the game. They don't argue about number 2, but they
argue number 1 and 3 are basically not Proper subjects for
judicial notice ana they're not relevant anyway.

MR. QUALLS: As to late in the game, there are rebuttal
material, they're addressing the question as raised in what I'm
calling the sur-reply filed by the defendant with respect to the
question of the nature of the meal period obligation as intended
by the legislature, and so I believe it is relevant, number one;
number two, it's response --

THE COURT: Well, wait, I don't mean to be rude to you, but
when you say it's relevant, how is a proposed regulation
relevant, and how is an assembly concurrent resolution that
doesn't apparently go beyond that, how are those things relevant
to explain legislative intent?

MR. QUALLS: Here's the weight we're requesting the Court
give it, and maybe in the judge's -- or your assessment afford
it no weight. The relevancy that we see is that it is some
indication, I grant you it is not a determinative indication of
legislative intent, but the Court may consider it to be in its
interpretation of these statutes and legislative intent some
indication of the intention of the legislature with respect to
its enactments. If the Court feels otherwise, that this has no
weight for that purpose, then I'm submitting it for no other
purpose for the Court to consider.

THE COURT: But what about the item 1 is not a legislativePage 16 |
issue, it's an agency issue?

MR. QUALLS: It's a predicate to item 3. To understand item
3 and any weight you may wish to give it, one would want to know
specifically what item 3 was in response to.

THE COURT: Well, did item 3 lead to any legislation?

MR. QUALLS: No, not to my knowledge.

THE COURT: So where is there any authority for the notion
that a resolution passed by one branch of a bicameral
legislature that goes no further than that, where is there any
authority that that makes any difference under the law, either
in any sense, including an expression of an intent of a
legislature. I would point out to you that, first of all, it
doesn't apparently reach both branches of the legislature, and
I'm not aware of any legal principle that attaches weight to
what one branch does, but it isn't even one branch doing
anything other than passing a resolution, so where is there
anything in the law that permits this Court to attach any weight
to it, in other words isn't it irrelevant?

MR. QUALLS: Well, here's my best argument, which I --

THE COURT: I appreciate your candor in phrasing your
response here.

MR. QUALLS: In my mind, it is akin to, for example, a
committee report or a comment in the course of a markup of a
bill or some other indication during the course of a legislative
Process, and I grant you --

THE COURT: But doesn't it have to lead to legislation, in

other words, I would grant you that legislative history mightPage 17]
perhaps relevant to an interpretation of a statute, at least in
some situations, such as when there's ambiguity in a statute,
but this is apparently something by your own concession that led
to nothing, and therefore how is it that a markup on a document
that led to nothing is more than nothing itself.

MR. QUALLS: I am forced to concede that this did not result
in the passage of a statute.

THE COURT: Okay. And are you also forced to concede that
it's not relevant or do you maintain that it is, and if it is,
how is it relevant? 1 understand your analogy, but it seems to
fall apart because we don't have an end Product here.

MR. QUALLS: Well --

THE COURT: At least it seems that way to me initially until
I hear a powerful argument from you in response.

MR. QUALLS: I can tell also that it's not going to have the
power that it requires.

THE COURT: Well, my question for the moment, I will grant
you it's not likely to have any power with me, but my issue
right now is whether it's even relevant for purposes of judicial
notice.

MR. QUALLS: If a legislative body passes a statute,
number one, and if members of that legislative, not the entire
legislative body, but if some members of the same legislative
body at a later time addressing the same statute express a view
with respect to that Statute, I think that has some probative
value as to the intent of the statute historically passed. That
is my best and final argument .

THE COURT: All right. And my last question to you is havePage 18 |
you ever found a case that Supports that argument or-do you know
of any?

MR. QUALLS: In that rarefied, narrow context, no.

THE COURT: Is there some broader context where the answer
might be yes?

MR. QUALLS: No, sir, what I attempting to say that in the
context in which this request for judicial notice is submitted
with respect to this material, the answer is unequivocally no.

THE COURT: Okay. All right. Is this Matter, the motion
the whole thing submitted?

MR. QUALLS: Yes, Your Honor.

MS. BERTAIN: Submitted, Your Honor.

THE COURT: All right. The matter submitted. I'm going to
take a brief recess and I'11 resume the bench and give you the
ruling. Thank you.

(Recess taken at 2:10 p.m.)
(Proceedings resumed at 2:35 p.m.)

THE COURT: We're back on the record, and the matter of the
motion for leave -- the motion for class certification having
been submitted, here's the Court's ruling:

This is a putative class action brought by the plaintiff and
purported class representative Ali Malik, who was employed as a
non-exempt teller and service officer by the defendant Citibank,
N.A. Plaintiff alleges that the defendant failed to provide him
and other similarly situated California employees with timely
meal periods in violation of California Labor Code sections
226.7 and 512 and applicable Industrial Welfare Commission

Orders.The plaintiff has moved to certify a class defined as
follows: "a class of persons in the employ of Citibank, N.A. in
California between July 16, 2003, and the present comprised of
two subclasses of Citibank, N.A. employees: (1) tellers and
service officers for whom Defendant's records depict the absence
of a meal period for work days in excess of 6 hours; and (2)
tellers and service officers for whom Defendant's records depict
a meal period start entry 5.25 hours after commencement of a
work day."

As a preliminary matter, the Court turns to the defendant's
evidentiary objections and the plaintiff's requests for judicial
notice.

As to the defendant's evidentiary objections to the
declarations submitted in Support of the plaintiff's motion for
class certification, the objections to the declarations of Cindy
Aranda, Carol Gehrum, G-E-H-R-U-M, Martha Herrera, and Mike
Ottovich are moot because those declarations have been withdrawn
by the plaintiff. Each of the other objections is overruled,
except the Court sustains the objection to the first sentence of
Paragraph 15 of the May 3, 2010 declaration of Mr. Qualls.

As to the defendant's evidentiary objections to the
declarations submitted in support of Plaintiff's reply brief,
the Court overrules each of those objections.

As to plaintiff's request for judicial notice submitted with
Plaintiff's reply Papers, that request is granted in full. As
to the plaintiff's supplemental request for judicial notice,
dated August 3, be wre request is granted as to item two and

denied the as to items one and three. Items one and three areory DU Rw HH KH

Page 20 |
irrelevant, but even if the Court were to take judicial notice
of them, today's ruling would remain the same.

Turning to the non-evidentiary issues on the motion for
class certification, California Code of Civil Procedure
section 382 provides that "when the question is one of a common
or general interest, of many persons, or when the parties are
numerous, and it is impracticable to bring them all before the
court, one or more may sue or defend for the benefit of all."
The California Supreme Court, in the case of Fireside Bank
versus Superior Court, 40 Cal.4th 1069, at Page 1089, explained
that "Class certification requires proof (1) of a sufficiently
numerous, ascertainable class, (2) of a well-defined community
of interest, and (3) that certification will provide substantial
benefits to litigants and the courts, i.e., that Proceeding as a
class is superior to other methods."

In the words of the California Supreme Court appearing in
the case of Washington Mutual Bank versus Superior Court, 24
Cal.4th 906, at Page 922, "In California it is settled that the
class action Proponent bears the burden of establishing the
propriety of class certification," and that "such burden clearly
contemplates a demonstration of Predominance and manageability."
In the case of Lockheed Martin Corp. versus Superior Court, 29
Cal.4th 1096, at page 1104, the California Supreme Court again
said that the burden is on the party seeking certification to
establish the existence of both an ascertainable class and a
well-defined community of interest among class members.

As to ascertainability, as stated in the case of Reyes,

R-E-Y-E-S, versus Board of Supervisors of San Diego County, 196uu FF Ww YO H

Page 21
Cal.App.3d 1263, at page 1271, "Whether a class is ascertainable
is determined by examining (1) the class definition, (2) the
size of the class, and (3) the means available for identifying
class members." Applying those factors to the proposed class in
this case, the Court first finds that the proposed class
definition clearly describes who would be included in. the class
and what time period is covered. Additionally, as the Plaintiff
contends, it appears that the proposed class is composed of
approximately 3,819 individuals, a number sufficiently large to
make joinder impracticable. Finally, there are sufficient means
available for identifying the Proposed class members through the
defendant's time records based on the criteria stated in the
class definition. Thus, the plaintiff has identified an
ascertainable class.

On the question of whether there is a well-defined community
of interest among class members, the court in the Fireside Bank
case, at page 1089, stated that this requirement "embodies three
factors: (1) predominant common questions of law or fact; (2)
class representatives with claims or defenses typical of the
class; and (3) class representatives who can adequately
represent the class.

In terms of whether common issues predominate, the
California Supreme Court, in the Lockheed Martin case, at
page 1108, stated that the plaintiff's burden "is not merely to
show that some common issues exist, but, rather, to place
substantial evidence in the record that common issues
predominate." The Court went on to state that "this means each

member must not be required to individually litigate numerous

TE TTT ITT SOS aoloC © OB IY DH Bw yp pw

BPR eM op
Ww NH

Page 22]
and substantial questions to determine his or her right to
recover following the class judgment; and the issues which may
be jointly tried, when compared with those requiring separate
adjudication, must be sufficiently numerous and substantial to
make the class action advantageous to the judicial process and
to the litigants." In short, and as stated in the case of
Kennedy -v- Baxter Healthcare Corp., 43 Cal.App.4th 799, at
Page 809, "a class action cannot be maintained if each
individual's right to recovery depends on facts particular to
that individual."

The California Supreme Court, in the case of Sav-On Drug
Stores, Inc. versus Superior Court, 34 Cal.4th 319, at page 327,
stated that in order to determine whether common questions of
law and fact predominate, "Reviewing courts consistently look to
the allegations of the complaint and the declarations of
attorneys representing the plaintiff class." The court went on
to state, at the same page, that, "the focus in a certification
dispute is on what type of questions - common or individual -
are likely to arise in the action, rather than on the merits of
the case." To this end, the court explained, also at page 327,
that trial courts should "consider whether the theory of
recovery advanced by the Proponents of certification is, as an
analytical Matter, likely to Prove amenable to class treatment .

This Court applies the teachings of these appellate cases
after observing the following additional legal principle. While
a court does not properly rule on the merits of a lawsuit when
ruling on class certification, a court may well be required to

consider the elements of the claims in order to determine issues

TT RATT TTTND NU FF WN BH

Page 23
relating to class action requirements. Cases supporting that
conclusion are many, and include the Fireside Bank case, at
Pages 1091 and 1092, and the Lockheed Martin case, at page 1106,
and also the case of Hicks versus Kaufman, 89 Cal.App.4th 908,
at page 916. In the Hicks case, the court summarized a trial
court's duties in this respect, stating, "In order to determine
whether common questions of fact predominate the trial court
must examine the issues framed by the Pleadings and the law
applicable to the causes of action alleged."

Here, the plaintiff alleges that the defendant failed to
provide him and the putative class members with timely meal
periods to which they were entitled by law as non-exempt tellers
and service officers. Thus, the legal test for determining what
an employer must do to provide a meal period is relevant to the
Court's consideration of whether common questions of fact
predominate over individualized questions of fact.

Plaintiff's claim that the defendant failed to provide
timely meal periods is based on Labor Code sections 226.7 and
512, and Industrial Welfare Commission Wage Order 4-2001. Labor
Code section 226.7 prohibits an employer from requiring an
employee to work during any meal period mandated by a Wage
Order. Section 11(A) of Wage Order 4-2001 reads in pertinent
part: "No employer shall employ any person for a work period of
more than five hours without a meal period of not less than 30
minutes." That Wage Order further states that "If an employer
fails to provide an employee a meal period," it must compensate
that employee for the missed meal period. Labor Code

section 512(a) reads in pertinent part: "An employer may notony Dn UW B® w pp

10

Page 24
employ an employee for a work period of more than five hours per
day without providing the employee with a meal period."

The question of what is required of an employer to provide a
meal period is currently under review by the California Supreme
Court in the case of Brinker Restaurant Corp versus Superior
Court, Supreme Court docket number S166350. Because this motion
comes before this Court prior to a determination of this issue
by the California Supreme Court, this Court must rely on and
follow the still extant appellate decisions in California
addressing this issue. In this connection, it is at the urging
of the plaintiff, and over the contrary suggestion of the
defendant, that this issue has been presented and submitted at
this time and without waiting for the Supreme Court's decision
in the Brinker case.

Here, the plaintiff's basic contentions are that an employer
must ensure that an employee takes a timely meal period and that
the employer's knowledge of a failure to record a timely meal
period equates to liability. Plaintiff's contentions are based
on the legal theory that the Operative word in Labor Code
section 512(a) and Wage Order 4-2001 is "employ." Plaintiff
argues that an employer is liable if it employs, meaning suffers
or permits to work, an employee for more than five hours without
a meal period. Plaintiff further argues that an employer
suffers or permits activity if an employer has knowledge of such
activity. Thus, under the Plaintiff's theory, if an employer
has knowledge of the absence of a recorded meal period, or the

recordation of an untimely meal period, the employer is liable

for a meal period.ony DU F Ww HB HB

28

Page 25

In support of his position that an employer must ensure that
an employee takes a meal period, the plaintiff relies on the
case of ci¥iros, c-I-¥-A-I-R-o-s, versus Summit Logistics,
Inc., 133 Cal.App.4th 949. There, the court held that an
employer must provide its employees with meal periods and in
doing so must ensure its employees are relieved of all duty.
Plaintiff interprets this holding to mean that an employer must
ensure that its employees actually take meal periods.

However, the law has not gone that far, at least to this
point. Neither the decision in the cikairos case nor the other
recent case of Faulkinbury, F-A-U-L-K-I-N-B-U-R-Y, versus Boyd &
Associates, Inc., 185 Cal.App.4th 1363, supports the plaintiff's
conclusion that an employer must ensure that an employee take a
meal period. Those cases only state that an employer must
provide its employees with a meal period. Thus, in Cikairos, at
pages 962 and 963, the court, as previously noted, stated that
an employer's obligation is to provide its employees with an
adequate meal period, and that in doing so the employer must
ensure that its employees are relieved of all duty. The court
in Faulkinbury stated that liability would only arise when the
defendant actually failed to provide an employee a meal period
in accordance with the applicable provisions of the Wage Order.

These decisions align with the language of the applicable
Labor Code provisions and Wage Order. Labor Code section 512
states that an employer must provide an employee with a meal
period. Wage Order 4-2001 states that an employer must
compensate an employee if it fails to provide that employee with

a meal period, and in providing a meal period, must relieve thePage 26 |
employee of all duty. Thus, the current legal standard, as
expressed in the case law, applicable Labor Code provisions, and
applicable Wage Order, requires only that an employer provide
its employees with a meal period, and in doing so relieve its
employees of all duties. The law does not require anything
more. It is under this legal standard that the Court examines
the claims of the Plaintiff's two sub-classes to determine

whether common questions of fact predominate.

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PoP oR
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13

14

Turning to that issue, and as to both sub-classes, the

plaintiff states, in his brief of August 3,

to 25,

that he

at page 1, lines 23

"bases his meal period claim on evidence common

to the class:class member meal period records, the submission of

such records to Citibank,

entry by Citibank supervisors."

and review and approval of record

To this end, the Plaintiff has

presented evidence that he and the putative class members record

their meal periods; that the defendant!

s meal period records

sometimes depict the absence of a meal period; that the

defendant!

s meal period records sometimes depict an allegedly

late meal period, meaning a meal period taken at least 5.25

hours after the start of a work day;

and that the plaintiff and

the putative class members submit their records to their

supervisors who review and approve them.

It is noteworthy that

the plaintiff does not challenge any of the defendant's formal

or institutional policies with respect to meal periods.

Defendant contends that those policies are lawful, and plaintiff

does not contend otherwise.

The evidence offered by the plaintiff, when viewed against

the background of the legal standard applicable to the27
28

Page 27 |
Plaintiff's claim, fails to demonstrate that common questions of
fact prevail on the issue of liability. Beyond that and based
on the evidence presented by the defendant, this Court is
satisfied that individual questions of fact, and not common
questions of fact, predominate on the issue of liability.

The defendant has presented persuasive evidence that it has
about 400 retail branch banks in California and that those
branches vary widely and substantially in numerous respects,
including size, number of tellers and service officers, customer
flow, manager style, mix of part-time and full-time employees,
hours of operation, days of operations, and managerial
structure. Against that background, the defendant has presented
substantial and persuasive evidence to the effect that the
circumstances surrounding meal periods vary substantially as
between the defendant's 400 retail branches and as between the
individual supervisors over time at each of those branches.
Evidence has been presented that while supervisors are
responsible for providing meal periods to tellers and service
officers, they are given flexibility in how they do so. To that
end, the defendant has presented evidence that some supervisors
create meal period schedules, that some supervisors allow the
tellers and service officers to schedule their own meal periods,
that some branches do not have scheduled meal periods but allow
tellers and service officers to confer on a daily basis as to
when to take them, that meal periods at some branches are
determined based on shift start times, and that sometimes
tellers and service officers are allowed to switch meal periods

without pre-approval by any supervisor. Further, the defendant

SESS SS SS TE TT SSE RaPage 28
has presented evidence that many tellers and service officers do
not need to ask permission from their supervisors before taking
their meal periods. According to the substantial and persuasive
evidence, there has been no company-wide practice that
supervisors set lunch schedules and thereafter release employees
to take their meal periods. It follows that individual
inquiries would be required to answer questions relating to
issues of liability, including questions as to whether
particular employees were relieved of all duties during
particular meal periods.

More broadly speaking, the substantial and persuasive
evidence presented by the defendant shows that there are myriad
individual circumstances surrounding the handling of meal
periods at various times, in various locations, and involving
different people with different approaches. Putting it in
different words, the substantial evidence presented by the
defendant persuasively shows, and this Court finds and concludes
that, the circumstances surrounding meal periods at the bank
varied substantially depending upon numerous particularized or
individualized factors, including the particular supervisors and
employees involved, the particular decisions made by the
particular supervisors and employees, the particular branch
locations involved, the particular situations occurring at the
particular locations at the particular times, and so on. Thus,
individual questions would predominate over common questions on
such issues as the following: (1) whether a particular employee
actually missed a particular meal period; (2) why a particular

employee missed a particular meal period or took an allegedlyPage 29 |
late meal period; (3) how, by whom, and under what circumstances
particular meal periods of particular employees were scheduled
or chosen; (4) whether particular supervisors prevented
particular employees from taking meal periods on particular
occasions; and (5) whether particular employees were relieved of
all duties on particular meal period occasions. In short, the
resolution of liability issues in this case would require
thousands of individualized inquiries regarding the actual and
varying experiences of proposed class members with respect to
meal periods.

Also relevant to the Court's conclusion that common
questions do not predominate is the defendant's persuasive
showing that the very records upon which the plaintiff bases his

class claim reveal that the proposed class members did record

meal periods 99,33 percent of the time. Those records further
show that over 9Q percent of those recorded meal periods were VG
taken within the first 5.25 hours of the workday. In other
words, it was only on relatively isolated and sporadic occasions
that the records failed to show a meal period or show an

allegedly late meal period. That fact, especially against the

background of the evidence previously reviewed, highlights the

individualized nature of the pertinent inquiries required to
address the issue of liability.

Even in the relatively isolated and sporadic occasions just
mentioned, the time records do not give any reason or other
indication why a meal period might not have been taken on a
given day or taken at a particular time on a given day. The

persuasive evidence here presented shows that the reasons willo© oO I H UH BB

Page 30
vary substantially with respect to particular meal periods of
particular employees, thereby necessitating individualized and
particularized inquiries into particular situations. These
facts further support the Court's conclusion that the
plaintiff's theory is not amenable to class treatment.

And just to add a few more words on that subject. As the
Court has just indicated, the records on which the plaintiff
relies relate to only relatively rare situations, in the case of
one proposed sub-class occurring less than 1 percent of the time
and in the case of the other Proposed sub-class occurring only
5 percent or so of the time. Against that background, the
plaintiff has failed to offer any evidence of any institutional
policy applicable to the relatively rare situations about which
the plaintiff complains. Nor has the plaintiff offered
persuasive evidence of any common facts applicable to those
relatively rare situations. In other words, there is lacking
common evidence to explain the whys or wherefores of the
relatively rarely occurring situations about which the plaintiff
complains.

To summarize, the Plaintiff has failed to show persuasively
that there was a centralized environment within the bank in any.
relevant or meaningful sense with respect to the handling of
meal periods. Defendant has persuasively shown that there was
not such a centralized environment. It follows that the issues
which may be jointly tried, when compared with those requiring
separate adjudication, are not sufficiently numerous or
substantial to make a class action advantageous to the judicial

process or to the litigants.

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