Request,Application: Reginald Lyle et al. vs Doctors Hospital Of Manteca, Inc. et al.

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ELIZABETH STAGGS WILSON, Bar No. 183160

SHANNON R. BOYCE, Bar No. 229041
LITTLER MENDELSON, P.C.

633 West 5th Street, 63rd Floor

Los Angeles, CA 90071

Telephone: 213.443.4300
Facsimile: 213.443.4299

JOSE MACIAS, JR., Bar No. 265033
LITTLER MENDELSON, P.C.

50 W. San Fernando, 15th Floor

San Jose, CA 95113.2303
Telephone: 408.998.4150
Facsimile: 408.288.5686

Attorneys for Defendants

DOCTORS HOSPITAL OF MANTECA, INC.;
AUXILIARY OF DOCTORS HOSPITAL OF

MANTECA; TENET HEALTHCARE
CORPORATION; TENET HEALTH
INTEGRATED SERVICES, INC.

SUPERIOR COURT OF CALIFORNIA

COUNTY OF SAN JOAQUIN, STOCKTON BRANCH

REGINALD LYLE, on behalf of himself
and others similarly situated,

Plaintiff,
v.

DOCTORS HOSPITAL OF
MANTECA, INC.; AUXILIARY OF
DOCTORS HOSPITAL OF
MANTECA; DRS HOSP OF
MANTECA INC; SP OF MANTECA
INC; TENET HEALTHCARE
CORPORATION; TENET HEALTH
INTEGRATED SERVICES, INC.;
TENET HEALTH; and DOES 1 to 100,
Inclusive,

Defendants.

Case No. STK-CV-UOE-2016-6523
CLASS ACTION

ASSIGNED FOR ALL PURPOSES TO JUDGE
MICHAEL J. MULVIHILL

REQUEST FOR JUDICIAL NOTICE IN
SUPPORT OF DEFENDANTS’ MOTION
FOR NON-CERTIFICATION

nsf MAR ipa
ept.:

t.b.d. / d Q&

Complaint Filed: July 5, 2016

REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANTS’ MOTION FOR NON-CERTIFICATION

FILED BY FAX28

LITTLER UENDELSON, P.C.
"HH9 eat

Pursuant to California Evidence Code sections 452 and 453, Defendants DOCTORS
HOSPITAL OF MANTECA, INC.; AUXILIARY OF DOCTORS HOSPITAL OF MANTECA;
TENET HEALTHCARE CORPORATION; and TENET HEALTH INTEGRATED SERVICES,
INC. (collectively, “Defendants”) hereby request the Court to take judicial notice of the following:

1, The December 14, 2018 Order Denying Motion for Class Certification in Woods v.
JFK Hospital, Riverside County Superior Court, Case No. INC 1205209, in Department PSI,
Honorable James T. Latting, presiding, attached hereto as Exhibit A. Pursuant to California
Evidence Code sections 452 and 453, the Court should take judicial notice of this fact as it is a
record of a court, is not reasonably subject to dispute, and is capable of immediate and accurate
determination by resort to sources of reasonably indisputable accuracy. Cal. Evid. Code '§§ 452(d),
(h), 453; see Duggal v. G.E. Capital Communications Servs., 81 Cal. App. 4th 81, 86 (2000) (“Court
may take judicial notice of the records of a California court.”).

2. The December 21, 2017 Order Denying Motion for Class Certification in Clayton
Dezan et al. v. Dignity Health et al, San Bernardino County Superior Court, Case No.
CIVDS1516658, in Department $26, Honorable David Cohn, presiding, attached hereto as Exhibit
B. Pursuant to California Evidence Code sections 452 and 453, the Court should take judicial notice
of this fact as it is a record of a court, is not reasonably subject to dispute, and is capable of
immediate and accurate determination by resort to sources of reasonably indisputable accuracy. Cal.
Evid. Code §§ 452(d), (h), 453; see Duggal, 81 Cal. App. 4th at 86 (2000) (“Court may take judicial

notice of the records of a California court.”)

Dated: February 4, 2019

sy

SHANNON R. BOYCE

LITTLER MENDELSON, P.C.

Attorneys for Defendants

DOCTORS HOSPITAL OF MANTECA,
INC.; AUXILIARY OF DOCTORS
HOSPITAL OF MANTECA; TENET
HEALTHCARE CORPORATION; TENET
HEALTH INTEGRATED SERVICES, INC.

1.

REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANTS’ MOTION FOR NON-CERTIFICATIONExhibit A —ELIZABETH STAGGS WILSON, Bar No. 183160 FILED
SHANNON R, BOYCE, Bar No. 229041 SUPERIOR COURT OF CALIFORNIA
ANTHONY G. LY, Bar No, 228883

JYOTI MITTAL, Bar No, 288084 DEC 14 2018
LITTLER MENDELSON, PC. ,

2049 Cent ‘ark East

5th Floor tury . Lucero Zuniga

Los Angeles, CA 90067.3107
Telephone: 310.553.0308
Fax No: 310.553.5583

Attorneys for Defendant
JFK MEMORIAL HOSPITAL, INC,

SUPERIOR COURT OF THE STATE OF CALIFORNIA.

FOR THE COUNTY OF RIVERSIDE
DAREL D, WOODS, on behalf of Case No. INC 1205209
himself and all others similarly situated
and the general public, “TEROPOSED} ORDER DENYING CLASS
CERTIFICATION
Plaintiff,
ASSIGNED FOR ALL PURPOSES TO HON.
v. JAMES T. LATTING
JFK MEMORIAL HOSPITAL, INC. a Trial Date: None Set
California corporation; and DOES 1 to Complaint Filed; July 24, 2012
100, inclusive,
Defendants.

PROPOSED] ORDER DENYING CLASS CERTIFICATION28

TILER MENDELSON, PC
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Plaintiff Darel D, Woods’ Motion for Class Certification came on regularly for hearing
before this Court, in Department PS1, the Honorable James T. Latting presiding, on October 25,
2018. Elizabeth Staggs Wilson and Shannon R. Boyce appeared on behalf of Defendant JFK
Memorial Hospital, Joseph Antonelli and Janelle Carney appeared on behalf of Plaintiff Darel D,
Woods, After full consideration of the papers, evidence and. authorities submitted by the Parties and
in the Court’s files, as well os the Parties’ oral argument thereon, the Court finds that Plaintiff's
Motion for Class Certification should be DENIED.

IT IS HEREBY ORDERED as follows:

i Relevant Background

This is a putative. wage and hour class action. Plaintiff Darel D, Woods ("Plaintiff") was
employed by Defendant JKF Memorial Hospital (“Defendant”) from September 6, 2005 through
July 11, 2012 as a registered nurse assigned primarily to the ICU and CCU. Plaintiff alleges that he
and other non-exempt employees were often required to work 10 or 12 hour shifts and that
Defendant used a base rate to calculate overtime that was not the regular hourly rate. Plaintiff argues
that Defendant failed to pay all wages and accrued vacation within 24 hours of separation, Plaintiff
further alleges that Defendant improperly rounded time in a manner that disadvantaged employees
and resulted in unpaid hours. He also claims that Defendant did not pay meal break premiums at the
regular hourly rate and provided invalid meal waivers. Plaintiff alleges that Defendant did not
adequately compensate employees for “on call” hours.

Defendant asserts that many of the challenged terms of employment, including rate of
overtime and meal period premium pay and “on-call” pay, as well as alternative work schedules for
nursing staff were negotiated pursuant to collective bargaining agreements (CBA) with various
unions representing different groups of employees. It argues that its rounding, on-call, and meal and
rest period policies comply with statutory requirements,

Plaintiff filed his Complaint on July 24, 2012, and the operative First Amended Complaint on
April 15, 2015, He asserts nine causes of action for: (1) Violation of Bus, Prof. Code §17200;
(2) Violation of Labor Code §§204, 510, 1194 and 1198; (3) Violation of Labor Code §200 et seq.;

(4) Failure to Pay Meal Break Penalty at the Proper Regular Rate Pursuant to Labor Code §226.7 &
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512 et seq,; (5) Failure to Provide and Maintain Aceurate Wage Statements Pursuant to Labor Code
§226; (6) Failure to Provide Meal Breaks; (7) Failure to Provide Rest Breaks; (8) Violation of Labor
Code §2698-2699 (PAGA); and (9) Unpaid Wages Due to Hlegal Rounding,

On September 19, 2012, Defendant filed a Motion to Compel Arbitration, which was granted
by this Court, Plaintiff appealed the decision and the proceedings were stayed pending appeal. On
October 20, 2014, the Court of Appeal issued its opinion reversing this Court's order, The Court of
Appeal determined the terms of the CBA in place at the time required any arbitration agreement to
be knowing and voluntary. The Court of Appeal held that the evidence of adhesion indicated that the
arbitration agreement was not voluntarily signed by Plaintiff in violation of the CBA, and therefore,
was not valid.

On May 2, 2017, Plaintiff filed the present Motion for Class Certification. He seeks to certify
the following classes:

* Class 1: All hourly non-exempt employees of Defendant who worked at least one day from
November 25, 2008 though the date of class certification order, who were paid wages
pursuant to a Collective Bargaining Agreement with JFK and any union. (CBA Wage &
Overtime Class)

* Class 2; All hourly non-exempt employees of Defendant who worked at least one day from
May 25, 2008 through the date of the class certification order, who were underpaid wages as
a result of Defendant’s rounding policy and pay practice (Rounding Class).

e All hourly non-exempt employees of Defendant who worked at least one day from May 25,
2008 through the date of the class certification order, who were not provided at least one
legally-compliant meal period (Meal Break Class).

° Subclass 1: All hourly non-exempt employees of Defendant who worked at least one
day from May 25, 2008 through the date of the class certification order, who signed a
meal waiver which contains a clause permitting JFK to revoke the meal waiver (Meal
Waiver Revocation Subclass). ,

o All hourly non-exempt employees of Defendant who worked at least one day from

May 25, 2008 through the date of the class certification order, who were paid for
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meal break violation at their base rate of pay (Meal Premium Reduced Rate
Subclass), ,

* Class 4: All hourly non-exempt 10 and 12 hour shift employees of Defendant who worked at
least one day from May 25, 2008 through the date of the class certification order, who were
not permitted or autharized to take on legally-compliant rest period break during any shift
(Rest Break Class).

© Subclass 3: All hourly non-exempt employees of Defendant who worked at least one
day ftom May 25, 2008 through the date of the class certification order, who were
paid for a rest. period break violation at their base rate of pay (Rest Premium Reduced
Rate Subclass).

¢ Class 5: All hourly non-exempt employees of Defendant who worked at least one day from
May 25, 2008 through the date of the class certification order, who were provided a paystub
(a.k.a. wage statement) from Defendant (Pay Stub Class).

Plaintiff argues that there are several common questions that predominate over individualized
issues because-the claims are based on general, uniform policies and procedures, He contends that
Cal. Lab. Code §514, whieh provides an exemption from overtime and work hour requirements for
employees covered by a valid collective bargaining agreement, does not apply because the subject
CBAs do not expressly define all wages, hours of work and working conditions, including wages for
on-call/stand-by shifts, which are compensated below the state minimum wage, Plaintiff asserts that
Defendant's meal period waivers are invalid because they can be revoked by the employer as well as
the employees, He argues that the overtime rate and meal premium rates are not based on the
employee’s regular hourly rate, Plaintiff asserts that the rounding policy fails to compensate for all
hours worked, Plaintiff argues that the waiting time penalties and pay stub violations involve
uniform policies common to all Class Members.

In his initial motion, Plaintiff argued that his claims were typical because he was a non-
exempt employee who regularly worked 12 hour shifts, He asserted that his attomeys, including
Joseph Antonelli (“Class Counsel”), have extensive class action experience and can adequately

represent the Class,
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__=}PROPOSED] ORDER DENYING CLASS CERTIFICATIONwo eI AH BR Ow

Pursuant to the Opposition, filed on October 13, 2017, Defendant - argues that class

| certification is improper because the proposed classes include a diversified workforce encompassing

130 job positions in numerous departments subject to different policies and procedures and CBAs
negotiated with different unions, all of which will require individualized factual determinations. It
claims that most putative class mernbers signed arbitration agreements, which will also require
individualized determinations as to validity. Defendant argues that Plaintiff is not o proper class
representative because he admitted that he never suffered any of the claimed violations and was a
difficult employee who was disciplined: and terminated-for disrespectful conduct.

Defendant argues that the CBAs satisfy the requirements for exemption because they provide
for wages, hours, and working conditions in sufficient detail. It claims that the on-call time is not

compensable under the relevant CBAs because Defendant does not control on-call employees,

. Defendant contends thatthe Court already determined that the rounding policy is neutral and

requires individual inquiries as to whether each employee worked uncompensated hours, Defendant
claims that the meal period premium pay rate is based on a base rates negotiated pursuant to the
relevant CBAs. It contends-that there is no policy or statute preventing an employer from revoking a
meal period waiver. In his original Reply, Plaintiff argues that despite the different job positions and
departments, Defendant has a uniform set of payroll policies that affect the entire class, He argues
that the applicability of the Labor Code $514 affirmative defense is a common issue because
Defendant does not provide separate CBAs for each job title or department. He asserts that the
validity of the meal waivers is alsa 2 common issue, Plaintiff contends that Defendant focused on the
merits of the claims rather than commonality.

In March 2018, Plaintiff passed away after filing the instant Motion for Class Certification.
Following Plaintiff's death, counsel moved for leave to amend to substitute Damelia E. Reyes, a
registered nurse employed by Defendant during the relevant class period, as class representative,
Plaintiff later withdrew this motion and filed a supplemental brief in support of class certification, in
which he argues that the estate of Darel Woods (‘‘Estate") should be substituted as class
Tepresentative,

In his supplemental brief, Plaintiff argues that the Estate is an adequate class representative
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because his claims, including those asserted under PAGA, survived his death, and therefore can be
pursued by the Estate, He claims that Class Counsel agreed to assume all costs of litigation to avoid
conflicting interests between the class and beneficiaties of the Estate. Plaintiff contends that the
Estate’s claims are typical of the class because they are Plaintiff's claims. Plaintiff contends that
because he was deposed prior to his death, Defendant and the Class will not be prejudiced by the

Estate’s lack of personal knowledge. Plaintiff provides new case law addressing the merits of several

| claims, He contends that the meal and rest period claims can be easily certified and that he has an

effective trial plan.
In its supplemental opposition, Defendant argues that the Estate is not an adequate
Tepresentative because the executor does not have personal knowledge of Defendant’s labor

practices or Plaintiff's individual work experiences. Defendant asserts that Class Counsel is directing

the litigation and that the Estate is not sufficiently informed about the issues. Defendant argues that |

allowing the Estate to act as class representative would violate its due process rights because it will
not have the opportunity to cross-examine a representative with personal knowledge. Defendant
argues that the Estate does not have standing to bring a PAGA because the executor was not an
aggrieved employee. It argues that the new cases cited by Plaintiff are not dispositive of the merits of
the claims. It contends that Plaintiff's counsel’s trial plan relies entirely on statistical sampling,
which is improper,

In his supplemental reply, Plaintiff argues that the Estate has sufficient understanding of the
issues to be an adequate representative, is willing to vigorously pursue the claims and does not have
any conflicts of interest. Plaintiff requests that Court allow him to amend the FAC to substitute a
class representative if the Court determines that tlie Estate is not adequate. He contends that Class
Counsel is adequate, Plaintiff argues Defendants will not be deprived of due process because
Plaintiff was deposed before his death and the deposition testimony may be used at trial. Plaintiff
again argues that the Court should not address the merits of the claims at this time, but asserts that if
the CBAs violate wage and hour laws, they are invalid, He contends that compensable time is time

during which an employee is under the control of the employer and is suffered or permitted to work.

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Il. Class Certification ls Denied
Cal. Code Civ. Pro. § 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.” There are two requirements .
| for a class action: (1) an ascertainable class and (2) a well-defined community of interest in the

; questions of law and fact involved. (Bell v. Farmers Insurance Exchange (2004) 115 Cal.App.4th

715, 740.).A party seeking class certification bears the burden of satisfying the CCP § 382
requirements, This-must be established by admissible evidence, (Soderstadt v, CBIZ Southern Calif,
LLC (2011) 197 Cal.App.4th 133, 154-155.)

The certification question is-“essentially a procedural one that does not ask whether an action
is legally or factually meritorious.” (Linder v, Thrifty Oil Co. (2000) 23 Cal. 4th 429, 439.) It is
improper for the Court to determine the merits of the claims pursuant to a motion for certification,
(Dailey v. Sears, Roebuck & Co, (2013) 214-Cal.App.4th 974, 990.) “When evidence or legal issues
germane to the certification question bear as well on aspects of the merits, a court may properly
evaluate them.” (Brinker Restaurant Corp, y, Sup. Ct, (2012) 53 Cal.4thi 1004, 1023-1024.) This
includes a consideration of the plaintiff's theories of liability. as well as affirmative defenses raised
by the defendant, (Dailey, supra, 214 Cal. App. 4th at 990,)

A. Ascertainability of the Proposed Class

Jn determining whether a class is ascertainable, the trial court examines the class definition,
the size of the class and the means of identifying class members. (Sotelo v. Medianews Group Ine,
(2012) 207 Cal. App. 4th 639, 648.) To establish that a proposed class is ascertainable, the class
definition must be precise and objective, (Global Minerals & Metals Corp. v. Superior Court (2003)
113 Cal. App. 4th 836, 858.) While the statute requires that there be many parties to a class action,
there is no set minimal number of class members necessary for certification, and classes with as few
as ten claimants have been upheld. (Rose v, City of Hayward (1981) 126 Cal, App. 3d 926, 934,)

Plaintiff indicates that the number of putative class members is approximately 1,381, (Camey
Decl, {28.) However, Defendant asserts that over 80% of these putative class members have signed a

Tenet Fair Treatment Process (FTP) form, which includes an arbitration agreement requiring all
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claims and disputes arising out of employment to be submitted to binding arbitration. (Konieczek
Decl, $12, Ex. 1.) Although 80% of the putative class members that signed the FTP may be barred
from participating in the class action, there are 276 putative class members remaining who
apparently did not sign. This is sufficiently numerous to warrant class certification. Accordingly,
Plaintiff has satisfied the numerosity requirement.

“Class certification is properly denied for lack of ascertainability when the proposed

definition is overbroad and the plaintiff offers no means by which only those class members who

have claims canbe identified from those who should not be included in the class.” (Hale y. Sharpe ;

Healthcare (2014) 232 Cal. App. 4th 58-59.)

Plaintiff argues that the class members are ascertainable because they are current or former
employees of Defendant who can be identified by personnel records, However, many current and
former employees have signed arbitration agreements, which, if valid, bar the employees from
tesolving. employment related disputes through this litigation. The FTP states, “I hereby voluntarily
agree to use the Company’s Fair Treatment Process and submit to final’ and binding arbitration of
any and-all claims and disputes that are related in any way to my employment or the termination of
my employment with Tenet.” (Konieczek Decl, Ex. 1,)

Generally, a mandatory employment arbitration agreement is enforceable. (Sonic-Calabasas
v. Moreno (2013) 57 Cal, 4th 1109, 1130-1131.) However, under the terms of the CBA in place at
the time Plaintiff was hired, any agreement to arbitrate must be voluntary. The Court of Appeal
determined that Plaintiff was coerced into signing the arbitration agreement as a condition of
employment, “which was precisely what it was not supposed to be under the CBA.” (RJN, Ex. 5, p.
10,) After evaluating the terms and circumstances of the arbitration agreement at issue, the Court
held that, taken as a whole, the arbitration agreement was procedurally and substantively
unconscionable. (Id at 16.)

While the Court of Appeal determined that Plaintiff's arbitration agreement was
unenforceable, Defendant asserts that the FTP has evolved and the putative class members have
signed different versions, which were presented in different ways, (Konieczek Decl, 913.) The

validity of each employee's FTP will have to be evaluated for its conscionability and voluntariness
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in order to determine if an employee {s eligible to participate in the class action. As such, the Court
would be required to make an individual determination of the merits of the individual arbitration

agreements to determine whether an employee may participate as a class member prior to

| certification, which is improper. (Guzman v, Bridgeport Educ., Ine. (2015) 205 F.R.D. 594, 612.)

Accordingly, Plaintiff has not established thatthe class is ascertainable as currently defined.
B Community of Interests,

“The community of interest requirement involves 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.” (Linde, supra, 23 Cal. 4th at 435.)
“The ultimate question the element of predominance presents is whether the issues which may be
jointly tried, when. compared with those requiring separate adjudication, are so numerous or
substantial that the maintenance of a class action would be advantageous to the judicial process and
to the litigants.” (Brinker, supra, 53 Cal. 4th at 1021), Certification is not appropriate “if every
member of the. alleged class would. be required to litigdte numerous and substantial questions
detérmining his individual. right to recover following the class judgment.” (City of San Jose vy.
Superior Court (1974) 12 Cal.3d 447, 459.) However, that each class member might be required
ultimately to justify an individual claim does not necessarily preclude maintenance of a class action.
(Collins v. Rocha, supra, 7 Cal. 3d at 238.)

Cc Predominance,

Plaintiff argues that common issues of fact and law predominate because his claims-are based
on uniform policies and procedures that apply to all employees in all departments. “Claims alleging
that a uniform policy consistently applied to a group of employees is in violation of the wage and
hour Jaws are of the sort routinely and properly found to suitable for class treatment.” (Brinker,
supra, 45 Cal. 4th at 1033.) However, class certification is improper if the defendant will be denied
the opportunity to litigate defenses to individual claims. (Duran v. U.S. Bank N.A. (2014) 59 Cal. 4th
1,35.)

Defendant contends that the Cal. Lab, Code §514 provides a defense to the overtime claims

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for union employees, Under this statute, sections 510! and 511 do not apply to-an employee covered
by a valid collective bargaining agreement if the agreement expressly provides for the wages, hours
of work, and working conditions of the employees, and if the agreement provides premium wage |-
rates for all overtime hours worked and a regular rate of pay for those employees of not less than 30
percent more than the state minimum wage, (Cal, Lab. Code §514.)

Defendant produced evidence that there were three CBAs in place during the class period,
(Thayer Decl., 4 and 5.) Defendant indicates that most, but not all employees were members of
either the Service Employees International Union (SEUI) Local 1212 RN or SEUI United Health
Workers West. (Konieczek Decl, {8.). The application of the Section 514 exemption defense requires

individualized determinations of whether each putative class member was a member of 2 union and

|. whether each CBA adequately provided for wages, hours and working conditions, (Allchin v,

Volume Services (2017) Lexis 123669 *17, due to possible Section 514 defense which would
splinter resolution of overtime claims, plaintiff did not establish predominance or that she would be
able to adequately represent non-union employees.) This potentially dispositive defense involves
individual issues of fact and law whieh are central to the resolution of the overtime claims.

Additionally, as stated above, a majority of the putative class members have signed
arbitration agreements. Defendant may seek to compel arbitration of cach of these employee's
claims, which will require individualized evaluations of the enforceability of the arbitration
agreement in each case as stated above. Although this is not a defense, it is an issue that will have to
be determined on an individual basis before the litigation goes forward. Because several
individualized issues are present that may have a significant impact on the litigation, Plaintiff has not
established that common issues predominate.

D Typicality.
Because the classes are broad, Plaintiff has not demonstrated that his claims are typical of all

class members. “Typicality refers to the nature of the claim or defense of the class Tepresentative,

' pursuant to Section 510, any work in excess of eight hour in one workday ond any wark in excess of 40 hours in any
workweek shall be compensated at the rate of no less than one and one-half the regular rate of pay and any work in
excess of 12 hours in one day shal! be compensated at the rate of no less than twice the regular rate of pay.

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and not to the specific facts from which it arose or the relief sought. The test of typicality is whether
other members have the same or similar injury, whether the action is based on conduct which is not
unique to the named plaintiffs, and whether other class members have been injured by the same

course of conduct.” (Martinez v, Joe's Crab Shack Holdings (2014) 231 Cal. App, 4th 362, 375)

The putative class members work in more than 130 job position, some of which involve
patient care, while others are administrative or operational. (Konieczek Decl., 7.) Some employees

are full-time, while others work part-time or on a per diem basis. (/d.) Plaintiff indicates that he

worked as a registered nurse in the [CU/CCU where he was often required to work 12-hour shifts,

(Woods Decl, 2.) As such, Plaintiff's job involved patient care. There is no evidence that his
claims as a patient care provider are typical of administrative employees who work regular business
hours.

The majority of the putative class members belong to one of two unions, although it appears
that some employees are not unionized. (Jd at $8.) Because union members are governed by
collective bargaining agreements, they may not suffer the same injuries as non-union employees.
(Romero v, Alta-Dena Certified Dairy, 2014 U.S, Dist, LEXIS 193276, *3-4 [non-union employee's
claims were not-typical of claims of union employees.]) All registered nurses were subject to CBAs,
(Thayer Decl, 3.) As a union member, Plaintiff's claims are-not typical of non-union employees.
Accordingly, Plaintiff has not established that his injuries are typical of all putative class members.

E. Adequacy of Representation.

A class action representative assumes a fiduciary responsibility to prosecute the action on
behalf of the absent class members, and is responsible for trying the case, appearing in court, and
working with class counsel. (Soderstedt v. CBIZ Southern California (2011) 197 Cal. App. 4th 133,
156.) The adequacy of representation requirement serves to uncover conflicts of interest between
named parties and the class they seek to represent, (Martinez, supra, at 375,) The primary criterion
for determining adequate representation is whether the representative, through qualified counsel, can
vigorously and tenaciously protect the interests of the class. (Simons v, Horowitz (1984) 151 Cal.
App. 3d 834, 846.)

Plaintiffs seeking class certification have the burden of proving the adequacy of their
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-[PROPOSED} ORDER DENYING CLASS CERTIFICATIONrepresentation by a member of the putative class, (Richmond v. Dart Industries, Ine. (1981) 29
Cal.3d 462, 470.) The class representatives must be personally adequate and may not merely lend
their name to a lawsuit controlled entirely by class counsel. (Espejo v, The Copley Press, Ine, (2017)
13 Cal. App. Sth 329, 353-354.) Courts may deny class certification based on inadequacy of
representation where the trial of the claims would focus on: the named plaintiff's problematic
employment history, which may not be typical ofthe class, (Mora v. Big Lots Stores, Inc. (2011) 194
Cal, App. 4th 496, 505.) The trial court may also take into account that the named plaintiffs have
already obtained individual benefits. (Sala v. American Sav. & Loan Assn. (1971) 5 Cal. 3d 864,
871-87.)

Defendant argues that Plaintiff's estate represented by the executor, Rosanna Woods, is not
an adéquate representative and that her claims are not typical of the Class. Pursuant to Cal. Code
Civ. Pro, §377.3, a cause of action that survives the death of the person entitled to commence an
action or proceeding passas to the decedent's successor in interest. Although there is no California
authority on this issue, it appears that there is no bar to an estate acting as a class representative in a
class action lawsuit if all other requirements are met, (See Kaplan v. Pomerantz (1990) 131 F.R.D.
118; 123; Shamberg v, Ahlstrom (1986) 111 F.R.D. 689, 693.) Courts have noted that a conflict may
arise where the administrator owed a duty to the beneficiaries and creditors of the estate to settle the
estate efficiently and the obligation as class representative to expend fisnds to cover the costs of
litigation. (First Interstate Bank, N.A. v. Chapman & Cutler (1988) 837 F.2d 775, 781-782.) This
tisk of conflict is reduced where class counsel agrees to advance the litigation costs. (Kaplan, supra,
131 F.R.D. at 125.)

Rosanna Woods declares: that, under the terms of Plaintiff's will, she is the sole named
beneficiary. (Woods Dec. 42.) She states that no person has a superior right to be substituted for
Plaintiff in the pending action. (Id, §3.) Plaintiff's counsel states that he will advance the costs of the
litigation. (Supp. Dec, of Antonelli, 44.) Because estate funds will not be used to fund the litigation,
there are no conflicts of interests. However, there is no evidence that Ms. Woods has any
understanding of the issues involved jn the litigation or her obligations as class representative, By

failing to file a declaration showing an understanding of the fiduciary obligations owed to class
12.

PROPOSED} ORDER DENYING CLASS CERTIFICATION1 |] members, Ms. Woods failed to prove that she is an adequate class representative. (See Jones v,
Farmers Ins. Exchange (2013) 221 Cal. App. 4th 986, 998.) A declaration may fall short of
establishing the willingness to act as a fiduciary if it shows that the declarant intends to do nothing

beyond what any litigant would do in prosecuting an action on his or her own behalf. (Jd; Soderstedt,

2
3
4
5 || surpa, 197 Cal, App. 4th at 156.) Therefore, Plaintiff has not established that the Estate can
6 || adequately represent the class,

7 Furthermore, conflicts may develop between Plaintiff, through his estate, based on Plaintiff's
8 |) claims, Plaintiff asserts that because the CBA does not provide overtime: premiums, it is invalid.
9 || Presumably, the unions obtained a benefit in exchange for conceding on overtime pay, As a dead
10 || former employee, Plaintiff can no longer obtain any benefits from the CBAs. However, his attempt
11 || to invalidate the CBA could have an adverse effect on the current employees who may enjoy the
12 || bargainedfor working. arrangements. Based on this potential conflict of interest, it does not appear
13 || that Plaintiff is an adequate class representative.

14 Because-Plaintiff has failed to show that the classes as currently defined are ascertainable, or
15 || that there is a well-defined community. of interest, class certification is denied. However, if a named
16 || plaintiff-cannot suitably represent a-class, the court should afford the party the opportunity to amend
17 || the complaint, to redefine the class, or to add new individual plaintiffs, or both, in order to establish
18 || asuitable representative. (La Sala v, American Sav. & Loan Assn, (1971) 5 Cal, 3d 864, 872.)

19 III, Rulings-‘On Requests for Judicia! Notice

20 Plaintiff requests judicial notice of several court documents filed in this case, such as the
21 || FAC, Defendant’s Answer, Notice of Ruling on Defendant’s Motion for Summary Adjudication,
22 || Stipulated Protective Otder, Defendant's Memorandum in Support of MSA, Declaration of Anthony
23 || G. Ly in Support of MSA, Declaration of Raymond Konlexezek in Support of MSA and Declaration
24 || of Janis Thayer in Support of MSA. These documents may be judicially noticed pursuant to Cal.
25 || Evid. Code §452(d), which permits judicial notice of court records. However, “although the
26 || existence of a document may be judicially noticeable, the truth of statements contained in the

27 | document and its proper interpretation are not subject to judicial notice if those matters are

28 || reasonably disputable.” (Fremont Indemmity Co. v, Fremont General Corp. (2007) 148 Cal. App. 4th
On. PE 1 3. .

-PREPOSED] ORDER DENYING CLASS CERTIFICATION

TILER MEND!
Fei Gaus

ae tase 1
sieishatoe97, 113.) Although a court may take judicial notice of the existence of each document in a court file,
it can only take judicial notice of the truth of facts asserted in documents such as orders, findings of
fact and conclusions of law, and judgment. (Ramsden v, Western Union (1977) 71 Cal. App. 3d 873,
879,) ,

Plaintiff also requests judicial notice of the Statement of Decision in Mutue y, Huntington

Memorial Hospital, Supplemental Statement. of Decision in Mutuc, Order Gtanting in Part and

Denying in Part Plaintiffs’ Joint Motion for Class Certification in Escano v, Kindred: Healthcare
Operating, Inc, and Statement of Decision-on Phase I of Trial in Lopes v. Kohl's Department Stores,
Again, these: documents may be judicially noticed under Cal. Evid. Code §452(d),

Plaintiff requests judicial notice of California Industrial Welfare Commission Wage Order 5-
2001, Division of Labor Standards Enforcement Policies and Interpretations Manual. These
documents may be judicially noticed pursuant to Cal. Evid. Code §452(b), which permits judicial
notice of regulations and legislative enactments issued by or under the authority of United States or
any public entity in the United States.

Finally, Plaintiff requests judicial notice of U.S, Department of Labor Fact Sheet #4 and #53,
History of California Minimum Wage chart and two advice letters from DLSE Chief Counsel's
regarding on-call time, Although these decuments refer to regulations, they are not regulations.
Plaintiff has not established any other basis for judicial notice of these documents. Therefore,
judicial notice of these documents is denied.

Defendant requests judicial notice of several documents filed in this case, including, the
Order on Motion for Summary Adjudication, Order on Motion to Compel Arbitration and the Court
of Appeals opinion reversing the Order on Motion to Compe! Arbitration. Defendant also requests
judicial notice of documents from other cases. These documents are judicially noticed under Cal,
Evid. Code §452(d) as stated above.

Additionally, Defendant requests judicial notice of Assembly Bill 10, which may be
judicially noticed under Cal. Evid. Code §452(b).

IV. Rulings On Evidentiary Objections

Although Antonelli*s original declaration contains primarily objectionable content that
14.

PROPOSED] ORDER DENYING CLASS CERTIFICATIONoD WN AD Hh RB Ye

28

includes legal arguments and conclusions, improper opinions, hearsay and speculation, this evidence
was not relied on in.evaluating the merits of the motion. Likewise, the declarations of Tonya Halfhill
| and Brian Kriegler were not relied on in evaluating the Motion for Class Certification.
Declaration of Darel Woods:

1, Overrule

2, Overrule

3. Sustain

4. Overrule

5, Sustain

6. Sustain

7, Sustain

8. Sustain

9. Sustain

10, Sustain

11. Sustain

12, Sustain

13. Sustain

14, Overmle

15, Sustain

16, Overrule

17, Sustain

Declaration of Janelle Carney:

1. Overrule

2. Overrule

3. Overrule

4, Overrule

5. Overtule

ITLER MenOELGOR, PC
TN Gove Pet Ea

we sone Ger 307
Srieo

6. Sustain
15.

~dPROROSEBPORDER DENYING CLASS CERTIFICATIONeo me Be ANH Fw

27

28

TILER MERDELSGHL PC
BH come

ww

ager 30
Siesth cite

7, Sustain

8. Overrule
10. Overrule
11, Overrule
12, Overrule
13. Sustain
14, Overrule
15. Overrule
16. Overrule
17, Sustain
18. Overmle
19, Overrule
20. Overrule
21, Sustain
22, Sustain
23. Overrule
24, Overmule
25. Overrule
26, Overrule
27, Overrule
Supplemental Declaration of Joseph Antonelli:
1. Sustain

2, Sustain

3. Sustain

16,

——"[EGSESEERLORDER DENYING CLASS CERTIFICATION1 Declaration of Rosanna Woods:

1, Overrule
2, Sustain

IT IS SO ORDERED.

Dated: _—November——,2018-

DEC 14 2018
James T. Latting

HON. JAMES T. LATTING
JUDGE OF THE SUPERIOR COURT

FIRM WIDE: 159277609,2 052845.1263

28

maggots ne 17.

w

“acer 3700

“tata —{PROPOSED}ORDER DENYING CLASS CERTIFICATIONExhibitCIV-171221-CIV-DS1516658-MISC-161502

OTERO

Scanned Document Coversheet

System Code: CIV
Case Number: DS1516658
Case Type: CIV

THIS COVERSHEET IS FOR COURT

Action Code: MISC PURPOSES ONLY, AND THIS IS NOT
Action Date; 12/24/17 A PART OF THE OFFICIAL RECORD.
Action Time: 4:16 YOU WILL NOT BE CHARGED FOR

Action Seq: 0002 THIS PAGE

Printed by: AGUAR

RULING DENYING MOTION FOR CLASS
CERTIFICATION filed.

IOAN

NEW FILEan oaep wn

Superior Court of California supeb L ecouer.
County of San Bernardino COUNTY OF en IARDINO
247 W. Third Street, Dept. S-26 SAN BERNARDNO DSTA
San Bernardino, CA 92415-0210 DEC 2 1 2017

wr lalsthitntale
AFLENE GUARDADO, DEPUTY

SUPERIOR COURT OF CALIFORNIA

COUNTY OF SAN BERNARDINO, SAN BERNARDINO DISTRICT

CLAYTON DEZAN; CATHY RHINEHART; and
SHELLEY WALDROP, on behaif of themselves and
all others similarly situated and the general
public,

Case No.: CIVDS 1516658

Ruling Denying Motion for Class Certification
Plaintiffs,

v.

DIGNITY HEALTH, a California Corporation,;
COMMUNITY HOSPITAL OF SAN BERNARDINO, A
California Corporation; and DOES 1 to 100,

inclusive,

Defendant.

Background
Plaintiffs seek to certify a class of 2,337 current and former employees of defendant Community|
Hospital of San Bernardino (CHSB). The named plaintiffs—Clayton Dezan, Cathy Rhinehard, and Shelley
Wardrop—are Registered Nurses. Dezan and Wardrop are current CHSB employees; Dezan works in
Behavior Health Services and Wardrop works in Labor and Delivery. Rhinehart is retired, but previously

worked in Behavior Health Services at CHSB.The putative class, however, comprises not only Registered Nurses and other employees
engaged in patient care, but also administrative personnel and other non-patient-care employees who
work in approximately 260 different job positions in forty-eight different departments at the hospital

complex.
Most CHSB employees are unionized. They belong either to the California Nurses Association

(CNA) or to the Service Employees International Union (SEIU). The unionized workers, whether patient-
care or non-patient-care employees, are all covered by Collective Bargaining Agreements. The named
plaintiffs are union members; as Registered Nurses, they belong to CNA.

The class and subclasses plaintiffs seek to certify embrace a variety of “wage and hour” claims—
claims for unpaid overtime compensation; claims for underpayment of wages due to a “rounding” policy
for the calculation of hours worked; claims for compensation due to shortened or absent meal and rest
breaks; and claims arising from the receipt of paystubs that did not properly reflect all compensation
plaintiffs allege was due and unpaid.

The named plaintiffs propose to assert these claims on behalf of all 2,337 members of the
proposed class—every hourly, non-exempt employee of CHSB, irrespective of job title, department, or
union membership. For the reasons set forth below, they cannot.

nl
The Standard for Class Certification

The California Supreme Court summarized the requirements for class certification in Brinker

Restaurant Group v. Superior Court (Hohnbaum) (2012) 53 Cal.4"" 1004, 1021:

Originally creatures of equity, class actions have been statutorily
embraced by the Legislature whenever “the question [in a case] 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...” (Code Civ. Proc. §382; (Citations omitted.]} Drawing on the
language of . , . section 382 and federal precedent, we have articulated
clear requirements for the certification of a class. The party advocating

-2-an Om Fk WO KH =

26

class treatment must demonstrate the existence of an ascertainable and
sufficiently numerous class, a well-defined community of interest, and
substantial benefits from certification that render proceeding as a class
superior to the alternatives. [Citations omitted.) “In turn, the
‘community of interest 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.’” [Citations omitted.]

“California courts may look to federal authority for guidance on matters involving class action
procedures.” (Apple Computer v. Superior Court (Cagney) (2005) 126 Cal.App.4th 1253, 1264, fn.4.)
Plaintiffs bear the burden of affirmatively demonstrating all the prerequisites for a class action. (Wal-
Mart Stores, Inc. v. Dukes (2011} 564 U.S. 338, 351.)

i
Ascertainability and Numerosity

As explained in Brinker, supra, the proposed class must be ascertainable and numerous. The
proposed class and subclasses in this case are both. The identities of the class members are readily
identifiable from CHSB’s employment records. Even if certain segments of the proposed class were
excluded—such as non-union employees, members of SEIU, or employees in non-patient care
positions—the size of the putative class and subclasses would remain large, consisting of hundreds of
employees. There is no dispute that the putative class is both ascertainable and numerous.

Vv
A “Well-Defined Community of Interest”

As explained in Brinker, supra, the “well-defined community of interest” requirement embodies

three related factors: predominant common questions of law or fact, class representative with claims

that are typical of the class, and class representative who can adequately represent the class. di

5

tase, common questions arguably prédominate, but plaintiffs Have failed to show: that they can,

adequately, represent class:members.who:work pursuant to:collective bargaining agreements—whether,ty

‘SEIU's.or(CNA’s—or class members who aré non-unio

claims, byemployee.groups othenthiaiy theit own—Reg

rir sac

A. Commonality

The Supreme Court in Brinker, supra at p. 1022, elucidated the requirement that common
questions of law or fact predominate:

The “ultimate question” the element of predominance presents is
whether “the issues which may be jointly tried, when compared with
those requiring separate adjudication, are so numerous or substantial
that the maintenance of a class action would be advantageous to the
Judicial process and to the litigants.” [Citations omitted.] The answer
hinges on “whether the theory of recovery advanced by the proponents
of certification is, as an analytical matter, likely to prove amenable to
class treatment.” (Citation omitted.] A court must examine the
allegations of the complaint and supporting declarations {citation
omitted] and consider whether the legal and factual issues they present
are such that their resolution in a single class proceeding would be both
desirable and feasible. [Footnote omitted.] “As a general rule if the
defendant's liability can be determined by facts common to all members
of the class, a class will be certified even if the members must
individually prove their damages.” [Citations omitted.)

“A theory of liability that a defendant has ‘a uniform policy ... [that] allegedly violates the law ...
is by its nature a common question eminently suited for class treatment.” Nicodemus v. Saint Francis
Memorial Hospital (2016) 3 Cal.App.5" 1200, 1218, quoting Brinker, supra, at p. 1033.)

In this case, individualized questions may exist, but common questions predominate under the
standard articulated in Brinker. The primary common question, posed simply if broadly, is whether
CHSB’s policies and practices regarding the payment of overtime and the provision of meal and rest
breaks comply with California law. Nicodemus indicates that such a question, “by its nature,” is a
“cammon question suited for class treatment.” (/bid.) To be sure, the administration of the policies and

practices may vary from department to department, and this might require evidence unique to thean Om aA ke WoO NH >

~

different departments. For example, the scheduling of meal and rest breaks in the emergency room is
obviously more problematic than it is in the accounting department. This would also likely require the
creation of subclasses other than or in addition to those proposed by plaintiffs, perhaps based upon the
different hospital departments. But there is no evidence presented to the court that CHSB deviated
from its policies and practices on an employee by employee basis, such that would require alleged
violations to be proven or disproven only through the individualized testimony of a large number of
employees, In fact, it appears likely that the parties could proceed to trial in large part based on
stipulated facts. While the evidence may differ for different departments, the common questions of law
and fact still predominate.

B. Typicality and Adequate Representation

Although plaintiffs have demonstrated an ascertainable and numerous class, and have shown
that common questions of law or fact predominate, their motion for certification founders on the latter
two elements—that the plaintiffs’ claims be “typical” of the claims of absent class members, and that

plaintiffs “adequately represent” the class. (This proposed Class comprises fot only union members, but

also non-tinion employees. (It'com

émiployess ses Ht Sily REGRtETE NUTSSS, bit SISO Ron-AUrs

fe as Well as those éngaged'in a myriad of other functions. ‘As forthe

1, SEIU Members and Non-Union Employees

The interests and concerns of CNA members, such as plaintiffs, may differ substantially from the
interests and concerns of SEIU members and of non-union employees. At the least, plaintiffs have not

shown that they are the same.aon Oa FR oO NB =

‘oe

In Adams v. Inter-Con Sec. Systems, inc. (N.D. Cal. 2007) 242 F.R.D. 530, 539, involving a
putative collective action under the Fair Labor Standards Act (FLSA), the court observed that employees
who were subject to collective bargaining agreements would not be suitable representative plaintiffs in
a collective action involving employees whose employment was not subject to collective bargaining
agreements.

{n Romero v. Alta-Dena Certified Dairy, LLC (C.D.Cal. 2014) 2014 WL 12479370, p. 2, the court
wrote: “Plaintiff admits that he is not a union member and that approximately 700 of the 995 putative
class members are. These union members’ overtime payments are governed by a series of collective
bargaining agreements. Because of this, Plaintiff's claim based on overtime is not typical of the
overtime class he seeks to represent.” {f the claims of a non-union member are not typical of the claims|
of a union member, the reverse is equally true: A union member's claims would not be typical of a non-
union member's claims. And, by extension, one would not adequately represent the other. As the
court observed in Alichin v. Volume Services, Inc. {S.D. Cal, 2017) 2017 WL 3337141, “as the named
plaintiffs only include individuals covered by collective bargaining agreements, there is a possibility that
they will fail to fully protect the interests of employees not covered by one.”

(Why Would Ton-Unionized; Non-edical Workers