Motion-Secondary: Reginald Lyle et al. vs Doctors Hospital Of Manteca, Inc. et al.

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LITTLER MENDELSON, PC,

eed

-¢pFILED

ELIZABETH STAGGS WILSON, Bar No. 183160 M4 HAR 1G PH 2: 32
SHANNON R. BOYCE, Bar No. 229041

LITTLER MENDELSON, P.C. ROSA JUNO 0, CLER

633 West 5th Street, 63rd Floor f 2
Los Angeles, CA 90071 AM

Telephone: 213.443.4300
Facsimile: 213.443.4299

BY

JOSE MACIAS, JR., Bar No. 265033
Littler Mendelson, P.C.

50 W. San Fernando, 15th Floor

San Jose, CA 951 13.2303
Telephone: 408.998.4150
Facsimile: 408.288.5686

Attomeys for Defendants

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

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN JOAQUIN, STOCKTON BRANCH

REGINALD LYLE, on behalf of himself Case No. STK-CV-UOE-2016-6523 |
and others similarly situated, i
CLASS ACTION
Plaintiff,
REPLY MEMORANDUM OF POINTS AND
v. AUTHORITIES IN SUPPORT OF
DEFENDANTS’ MOTION FOR

DOCTORS HOSPITAL OF MANTECA, NONCERTIFICATION
INC.; AUXILIARY OF DOCTORS
HOSPITAL OF MANTECA; DRS HOSP ASSIGNED FOR ALL PURPOSES TO JUDGE
OF MANTECA INC; SP OF MANTECA MICHAEL MULLVIHILL, DEPT. 10C

INC; TENET HEALTHCARE

CORPORATION; TENET HEALTH Date: March 21, 2019

INTEGRATED SERVICES, INC.; TENET | Time: 9am.

HEALTH; and DOES 1 to 100, Inclusive, Dept.: 10C
Defendants.

Complaint Filed: July 5, 2016
Trial Date: June 10, 2019
'

DEFENDANTS’ REPLY MPA ISO MOTION FOR NONCERTIFICATION

FILED BY FAX4 || IL

4 28

FUITTLER MENDELSON, P.C.

21 || OL

TABLE OF CONTENTS

INTRODUCTION
LEGAL ARGUMENT.....
A. The Standard Governing Class Certification

B. Plaintiff's Assertion That The Proposed Classes And Subclasse:
Ascertairiable Ignores The Existence Of Signed Arbitration Agri

1. Individualized Inquiries Predominate As To Enforceabil

2.‘  Sprunk Has No Applicability Te To This Case Due To Plaintiff's Delay

In Appearing For Deposition...

c. Individual Issues Predominate as to Plaintiff's Proposed Classes and

1. Plaintiffs Presents No Evidence In Support Of His Rounding Claim

2. Plaintiffs On-Call/Stand-By Time Allegations Are ; Individualized in
Nature and His Assertions Otherwise are Entirely Unsupported esseees

3. Lyle’s Meal and Rest Period Claims Are Not Subject to Common
Proof.....esseeseen oseeeneeeen

Plaintiff's Derivative Claim For Waiting Time Penalties Fails...1.....1.-.:-00++

E. Plaintiff's Derivative Claim Under 226 Is Meritless

Plaintiff Is Not Typical Of Hundreds of Putative Class Members Because 1
Has Not Executed An Settlement Agreement, He is not a Union|Member, a
He Worked Solely Within The Distinct Confines of the Surgery/Department.

|
G. Plaintiff's Conclusory Assertions as to a Trial Plan are Wocfully Insufficient......... 18

CONCLUSION. ..cssessesssssssessesssessneesessessncsreerosssnnensensecssesvesvsssnasueesiesscsssssnannasecesesesens

2.

DEFENDANTS! REPLY MPA ISO MOTION FOR NONCERTIFICA\ fIONTABLE OF AUTHORITIES

PAGE

Cases

Amiri v. Cox Communs. Cal., LLC, |
272 F. Supp. 3d 1187 (2017) sssosesesssssessnnssetnseesstaqinceesetnseeeteesnaeinenjeenitnetieesasenveneint

Armendariz v. Foundation Health Psycheare Serv., Inc.,
24 Cal.Ath 83 (2000), abrogated i in "part by ATED. Mobility IS LIC y. » Concepeion,
IB1 S.Ct, 1740 (2011) ssscssscnnsesne ceo snnesenneeceeeypereceencee 8

Bernard v. Gulf Oil Corp.,
841 F.2d 547 (Sth Cir. 1988) ..

Block v. Major League Baseball,
65 Cal. App. 4th 538 (1998)

Brinker Restaurant Corp. v. Superior Court,
53 Cal.4th 1004 (2012)...

Carlistrom v. DecisionOne Corp.,
217 F.R.D. 514 (D. Mont. 2003).....ssescccssssscssssescsssesssssscccensnsscesneesensnneessuneessefateescsntseesenneeesosniinetess 18

Corbin v. Time Warner Entertainment,
821 F.3d 1069 (9th Cir. 2016)

Cornish v. Odyssey HealthCare, Inc., :
2009 WL 10671024 (C.D. Cal. Sept. 22, 2009)... csssssesstsrssessssesessessseteessssenssseessereeseee lO, 13

DePriest v. River W. LP,
187 F. App’x 403 (Sth Cir. 2006) .......eessssssssesssssescssneccsssescsssscsssssncssssnscessnnefessseesssnerssaneeesee LZ, 13

Dickhaut v. Madison Cty., Iowa,
707 F. Supp. 2d 883 (S.D. Lowa 2009) veesssssssssssncessseseeetanssnttnesternseafeeneentenssetefetaseenen 2

Dinges v. Sacred Heart St. Mary's Hospitals, Ine.,
164 F.3d 1056 (7th Cir. 1999)... sasssseesseenersees

Duran y. U.S. Bank National Assn.,
59 Cal. 4th 1 (2014)

Guzman v. Bridgepoint Edue., Inc., .
305 F.R.D. 594 (S.D. Cal. Mar. 26, 2015) ....sccsesssessessnersesneesarsstesneesseeneseneenre JsesseecnesseeeneresrsssnseserseD

Halferty y. Pulse Drug Co.,
864 F.2d 1185 (Sth Cir. 1989)...

3.
\

DEFENDANTS' REPLY MPA ISO MOTION FOR NONCERTIFICATION

| |TABLE OF AUTHORITIES '
(CONTINUED)

Hanon v, Dataproducts Corp.,
976 F. 2d 497 (9th Cir. 1992)

Hendershot v. Ready to Roll Transp.
228 Cal. App. 4th 1213 (2014)

Henry v. Med-Staff, Inc.,
2007 WL 1998653 (C.D. Cal. July 5, 2007)

Hubbs v. Big Lots Stores, Inc.,
2018 WL 5264141 (C.D. Cal. March 16, 2018)

JP. Morgan & Co., Inc. v. Superior Court,
113 Cal. App. 4th 195 (2003)

i

!

Kinney v. United HealthCare Serv., Inc., |
70 Cal.App.4th 1322 (1999) sescssssscesaseeeseseseeen |

Kirby v. Immoos Fire Prot., Inc.,

53 Cal.4th 1244 (2012)

Langbecker v. Electronic Systems Data Corp. |
476 F.3d 299 (Sth Cir, 2007) ...sesseecoeee

Ling v. P.F. Chang's China Bistro, Inc.,
245 Cal. App. 4th 1242 (2016)

Melong v. Micronesian Claims Com.,
643 F.2d 10 (1980)....ssssesseeeee

Mies v. Sephora U.S.A, Inc.,
234 Cal. App. 4th, 967, 985 (2015)

Miner v. B & C Equip., Inc.,
26 F.3d 131 (9th Cir. 1994)

Owens v. Local No. 169, Ass'n of W. Pulp & Paper Workers,
971 F.2d 347 (9th Cir. 1992)...

Pablo y. Servicemaster Global Holdings,
2011 U.S. Dist. LEXIS 87918 (N.D. Cal. 2011)

Palacio v. Jan & Gail's Care Homes, Inc.,
242 Cal. App. 4th 1133 (2015)...

DEFENDANTS' REPLY MPA ISO MOTION FOR NONCERTIFICA *

1
t
i28

LITTLER MENDELSON, P.c.

suet

TABLE OF AUTHORITIES
(CONTINUED)

Pilkenton v, Appalachian Reg’l Hosps., Inc.,
336 F. Supp. 334 (WD. Va. 1971)

Sav-On Drug Stores, Inc. v. Superior Court,
34 Cal. 4th 319 (2004)...

See's Candy Shops, Inc. v. Superior Court (Silva),
210 Cal. App. 4th 889 (2012)

Triad Data Services, Inc. v. Jackson,
200 Cal. Rptr. 418 (1984)

Walsh v. IKON Office Solutions, Inc.,
148 Cal.App.4th 1440 (2007)...

Washington Mutual Bank v. Sup. Ct.,
24 Cal. 4th 906 (2001) ....ssssssesssesseerssressnssssesnesnesseseneeerssneseneceacenes

Statutes

Code of Civil Procedure § 22.
California Labor Code § 226 v..esccsccssessecsessesssessssesseestensesnsssseenseaseneecasanesennenasenenne
California Labor Code § 514
Other Authorities

Wage Order 5, §2(K) ...sseesseccseesressesssesnessessneessessresesssseeseeneesneesen

5.

10, 14

DEFENDANTS! REPLY MPA ISO MOTION FOR NONCERTIFICA4

TIONi

28

LITTLER HENDELSON, F.C.

I. INTRODUCTION

After years of discovery, multiple depositions, and thousands of pages of documentation
produced by Defendants, Plaintiff's Opposition is nothing more than swebping generalizations,
attempts to rewrite Plaintiff's deposition testimony through a self-serving declaration, and woeful
mischaracterizations of deposition testimony provided by Defendant’s witnesses. However, the
actual, admissible evidence before the Court clearly demonstrates that certification is impjoper as to
any claimed class or subclass.' Indeed, there is no ascertainable class to the extent nearly all class
members have executed arbitration agreements and/or individual releases of their claims. Moreover,
Plaintiff's claims are fraught with individualized issues which cannot be adjudicated on a class-wide

basis, including, but not limited to: (1) putative class members work in bothjpatient care and non-

patient care roles, (2) certain employees are unionized, while other employees, such as Plaintiff, arc
not; (3) depending on department, or even the employce’s specific job position, employees may, or
may not, be required to don and doff specialized protective gear (i.e. sterile scrubs, masks, etc.);
(4) depending on department, or even the employee’s specific job position, employees may, or may
not, work on-call/standby time with varying requirements imposed by individual supervisors; and
(5) putative class members may, or may not, perform compensable work during any rounded time
under the suffer and permit standard applicable to healthcare employees. Shockingly, Plaintiff offers
no proposed trial plan to overcome this plethora of individualized issues, even though the trial in
this matter is less than three months away. Plaintiff cannot meet his class certification burden, and
Defendant respectfully requests that its motion be granted.
Ul. LEGAL ARGUMENT

A. The Standard Governing Class Certification.
Plaintiff docs not dispute that he has the burden to “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[.]” Brinker
1

ee 1

1 In numerous instances throughout his brief, Plaintiff offers no evidence and instead attempts to improperly incorporate

arguments and/or evidence from his motion for class certification, filed the day after this | opposition. Notably, the

hearing date on Plaintiff's motion for certification is just one month before trial, thus leaving no time for notice to any

certified class, merits discovery, expert discovery, or any other meaningful trial preparation. |

6.

DEFENDANTS' REPLY MPA ISO MOTION FOR NONCERTIFICATION4
5
6

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Restaurant Corp. y. Superior Court, 53 Cal.4th 1004, 1021 (2012). To meet his burden regarding
the community of interest requirement, Plaintiff must demonstrate: “(1) predominant common
questions of law or fact; (2) class representatives with claims or defenses typicht of the class; and (3)
class representatives who can adequately represent the class.” Jd. A review of Paints Opposition
reveals that Plaintiff cannot meet his burden of proving, by @ preponderance of competent,

admissible, and probative evidence, that he can meet any of these requirements. Accordingly,

Defendants’ motion should be granted in full. |

B. Plaintiff's Assertion That The Proposed Classes And Subclasses Are Readily
Ascertainable Ignores The Existence Of Signed Arbitration Agreements.

1 Individualized Inquiries Predominate As To Enforceability Of The FTP.
Rather than address any of the cases cited by Defendants, Plaintiff instead cites bs a single
case, Hendershot v. Ready to Roll Transp., 228 Cal. App. 4th 1213 (2014), ta assert that this Court
should not consider the arbitration agreements executed by nearly all putative class members.
Hendershot, however, merely found it improper for the trial court to determine, on the merits, that
individuals who signed arbitration agreements or releases could not assert claims. /d. at 1223. Here,

however, Defendant asserts that the existence of signed arbitration agreements create individual

inquiries that predominate and make any class impossible to ascertain, thus making certification
improper.” Walsh v. IKON Office Solutions, Inc., 148 Cal.App.4th 1440, 1450jn.8 (2007).

As acknowledged by the Henderson court, “the trial court may consider ‘the case’s merits”
when considerations of “‘how various claims and defenses relate and may aie the course of the
litigation...’” Hendershot, 228 Cal. App. 4th at 1223 citing to Linder v. Thrifty Oil Co. 23 Cal.4th
429, 439-440 (2000). When considering the impact of these arbitration agreements on the ongoing
litigation, numerous courts have found denial of class certification appropriate, which Plaintiff Jails

to address in his opposition. Pablo v. Servicemaster Global Holdings, 2011 US. Dist. LEXIS 87918

(N.D. Cal. 2011) (denying cert where litigation would be‘devoted to determining which portion of

? Indeed, questions such as (1) which version(s) was signed; (2) the circumstances behind the signing of cach agreement;
and (3) whether each agreement is enforceable as to each individual depending on the sptecment (and sometimes
multiple agreements), must be answered as to each and every putative class member. Contrary to Plaintili"s assertion
otherwise, exemplars of Defendant’s FTP acknowledgments were attached as Exhibit G to the Holzer Declaration, and
the complete Employee Handbook was attached to the Declaration of Counsel (as Exhibit 9 to Plaintiff's Deposition).

7.

DEFENDANTS' REPLY MPA ISO MOTION FOR NONCERTIFICATION
|
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UITTLER MENDELSON. P.C.

putative class signed arbitration agreements); Guzman v. Bridgepoint Educ., .D. 594

(S.D. Cal. Mar. 26, 2015) (same). Indeed, this identical issue was recently addressed in Woods v.
JFK Memorial Hospital, where the Court denied class certification. See Defendants’ Request for
Judicial Notice, (common issues did not predominate and class not Torna due to
individualized determination necessary as to enforceability of arbitration pene) Plaintiff
makes no attempt to distinguish the instant matter from Woods, and the result i be the same,

2. Sprunk Has No Applicability To This Case Due To P|
Appearing For Deposition.

aintiff’s Delay In

Plaintiff's alternative argument with regard to Sprunk v. Prisma is) similarly unavailing.
First, Plaintiff cannot have it both ways — he cannot assert that Defendants did not seek to enforce
Plaintiff's arbitration agreement while simultaneously acknowledging that Defendants sought, and

delay in moving to compel arbitration was due to Plaintiff's failure to ober for deposition for

continue to seek, enforcement of Plaintiff's arbitration agreement in a related case. ole any
nearly seven months, until after Defendants were forced to file a motion to compel his altendance.
At that point, the parties had already engaged in substantial discovery, including use of a discovery
referee, and had fully availed themselves of the class action device. Once; Plaintiff admitted at
deposition that he voluntarily executed a written agreement requiring him to submit all employment-
related disputes to binding arbitration, Defendants moved swifily to compel arbitration of Plaintiff's
claims in his wrongful termination matter, and continue to seek enforcement of his arbitration
agreement through an ongoing appeal.’ Defendants have thus not acted in any/fashion to waive their
right to compel arbitration of Plaintiffs claims, and Plaintiff's assertions othervise are misplaced.

Cc. Individual Issues Predominate as to Plaintiff’s Proposed Classes and Subclasses.

1. Plaintiffs Presents No Evidence In Support Of His Rounding Claim.

Based on nothing more than DHM’s neutral rounding policy and the/existence of a simple

> plaintiff further misstates the law in alleging that the arbitration agreement is unconscionaple as to all ptitative class
members. Unconscionability has two elements: a procedural element and a substantive jelement. Arimendariz v.
Foundation Health Psychcare Serv., Inc., 24 Cal.4th 83, 114 (2000), abrogated in part by ATRT Mobility LLC ».

Concepcion, 131 §. Ct. 1740 (2011). “[[P]rocedural and substantive unconscionability] must both be present in order for

a court to exercise its discretion to refuse to enforce a contract or clause under the docirine
(emphasis in original), Resolution of these issues cannot be determined on a class wide basi
procedural unconscionability focuses on one individual at a specific point in time, name!
formation. Kinney v. United HealthCare Serv., Inc., 70 Cal.App.4th 1322, 1329 (1999).

8.

f unconscionability.” Jd.
is. Instead, the question of
, the instant of contract

DEFENDANTS! REPLY MPA ISO MOTION FOR NONCERTIFICA’

TIONtardiness policy, Plaintiff argues that DHM’s rounding results in systemic

osses for employees.

First, utilizing a rounding policy is not unlawful. See ’s Candy Shops, Inc. v. Superior Court (Silva)

(“See ’s”), 210 Cal. App. 4th 889, 903 (2012); Corbin v. Time Warner Entertaii

1078-79 (9th Cir. 2016). Rather, rounding is /egal if it is “fair and neutral on

ment, 821 ¥.3d 1069,

lits face and!*it is used
j

in such a manner that it will not result, over a period of time, in failure to compensate the employces

properly for all the time they have actually worked.” See’s, 210 Cal. App.
added). Significantly, it is acceptable to evaluate a rounding claim as to th
during the class period and not on an individualized, pay period, or day-to-

Cal. App. 4th at 908; Corbin, 821 F.3d at 1077 (if a “rounding policy wa:

Mth at 907 (emphases
¢ class of employees
day basis. See’s, 210

meant to be applied

individually to each employee to ensure that no employee ever lost a single cent over a pay period,

the regulation would have said as much.”) Yet, that is seemingly what Plaintiff attempts to do here."
However, to obtain certification, Plaintiff must present substantial evidence the policy as a matter of
practice worked to the consistent disadvantage of employees on a class wide basis.” Sav-On Drug
Stores, Inc. v. Superior Court, 34 Cal. 4th 319, 329 (2004); Duran v. U.S. Bank National Assn. 59
Cal. 4th 1, 29 (2014). Plaintiff does not do so here.

Lyle further blatantly ignores the many factual questions inherent ih his rounding claim.

Indeed, time records alone do not evidence (1) whether the employee was pe:
work during the rounded time; and (2) whether the employee was suffered

Lyle further completely fails to address the significant evidence that Kroy

forming compensable
r permitted to do so.

jos records are not a

reliable indicator of the time actually spent working because employees ee clock-in for work

and then perform non-compensable activities, even within the surgical department. Beenes Decl., {

20; Holzer Decl. { 11, Malogan Decl., §{j 20-21; Ugalino Decl., 4 13. Plaintiff'seemingly attempts to
avoid the individualized nature of these inquiries by asserting that employebs within the surgical

department are purportedly required to don and doff surgical scrubs off the clo k, but he admitted at
{
* Plaintiff's arguments are unclear and unsupported to the extent Plaintiff's opposition includes no evidence, and instead
attempts to reference his motion for class certification, which was not filed until day after his opposition was filed.
5 Further, Plaintiff’s assertion that rounding resulted in lost overtime or double time was rejected by the Corbin court.
See 821 F.3d at 1078 (agreeing with See’s Candy in rejecting plaintiff's claim that not all rounded time shoud be treated
equally due to variance in compensation rates). Moreover, as sct forth in Defendant’s moving papers, any analysis of
purported overtime owed requires further individualized analysis under Labor Code 514. }
9.

DEFENDANTS’ REPLY MPA ISO MOTION FOR NONCERTIFICATIONdeposition that he never saw anything in writing nor was he ever told that he was to don and doff
protective gear while off the clock, Pl. Depo., 218:13-23; 249:12-250:25. Indecd, there is no such

requirement.® Lyle’s rounding claim is simply not appropriate for class treatment.
t

2. Plaintiff's On-Call/Stand-By Time Allegations Are Individualized in
Nature and His Assertions Otherwise are Entirely Unsupported.

Throughout his opposition, Plaintiff erroneously refers to whether employees were under

DHM’s “control.” However, Wage Order No.5’s definition of “hours worked” specifically provides:
“fw]ithin the health care industry, the term “hours worked” means the |

time during which an employee is suffered or permitted to work|for the

employer, whether or not required to do so, as interpreted in accordance

with the provisions of the Fair Labor Standards Act.”
Wage Order 5, §2(K) (emphasis added). Despite this differing standard, Piaintit cites exclusively to

the Mendiola, Morrillion, and Ward decisions with regard to compensability of on-call and/or stand-
by time, none of which are relevant. To the contrary, the Court must look authority under the
FLSA and the suffer or permit standard.

In Owens y. Local No. 169, Ass'n of W. Pulp & Paper Workers, 971 la 347, 350 (9th Cir.
1992), the Ninth Circuit first addressed the applicability of the FLSA to ondall time, holding two
considerations are predominant in the analysis of compensability under the FLSA: (1) the degree to
which the employee is free to engage in personal activities; and (2) the agreements . the

parties.” Jd. Applying these factors, it is clear that individualized issues preclude class certification.
|

a. Substantial Evidence Demonstrates that Putative Class Members
are Free to Go About Personal Activities me On Call.

The Owens Court identified seven factors that a court should consider in determining the
degree to which an employee is free to engage in personal activities while on-call, cach of which
requires substantial individual inquiry: (1) whether there was an on-premises living requirement;
(2) whether there were excessive geographical restrictions on employee's movements; (3) whether a
fixed time limit for response was unduly restrictive; (4) whether the on-call employee could easily

trade on-call responsibilities’; (5) whether use of a pager could ease restrictions; (6) whether the
i

6 Indeed, Ugalino even testified to the fact that employees may leave for the day without ever changing out of their
scrubs at the end of the day. Ugalino Depo., 23:20-24:2. i
” Plaintiff admits employees could trade on-call duties. Pl. Depo. 46:6-9; 259:7-19. See Cornish v. Odyssey HealthCare,

10.

DEFENDANTS' REPLY MPA ISO MOTION FOR NONCERTIFICATIONemployee had actually engaged in personal activities during on-call time;) and (7) whether the
frequency of calls was unduly restrictive. Owens, 971 F.2d at 351. Because no one factor is
dispositive, “a court should balance the factors permitting personal pursuits against the factors
restricting personal pursuits” to determine whether the employee is unduly restricted.” dd.

Lyle cannot satisfy his burden of showing that these clements cin be determined for
hundreds of individuals in distinct jobs by common proof. Indeed, Plaintife makes no attempt to
credibly do so, instead opting to mischaracterize deposition testimony ;and make sweeping
generalities unsupported by any evidence. In fact, all the available evidence clearly shows that they
ants presented ample

cannot. For example, although completely ignored by Plaintiff, Defend

evidence that on-call requirements vary significantly and employees are free

activities while on call. Holzer Decl, 4 21 (not all employees even required

Castillo Decl., [3-6 (no restrictions other than no drugs or alcohol); Ugalinog

leeway provided by varying shift managers). Indeed, Plaintiff admitted t
varied, even within the surgical department, and that he was free to engage!

including shopping, getting something to eat, or coffee with friends. PI. Depo.

ito engage in personal
to return to hospital);
Decl., § 11 (differing
at on-call scheduling
in personal activities

253:12-13;:259:7-19,

267:25-269:16.'° The individual nature of this analysis was further highlighted in subsequent
depositions taken by Plaintiff, although omitted in his Opposition. For example, Leila Castillo
specifically testified as to the varying requirements and flexibility with regard to on-call time in the

labor and delivery, nursery, and postpartum units, stating that some employees live an hour away

Inc., 2009 WL 10671024, at *6 (C.D. Cal. Sept. 22, 2009) (finding “ability to trade on-call shifts” factor weifhed against
compensability, even though triage nurse testified she had asked management to relieve her ofjdutics while oh call so she
eros and not ability to

bility to trad¢ shifts with

could have personal time; court found that this allegation pertained only to the triage nurse’s
trade shifts); Henry v, Med-Staff; Inc., 2007 WL 1998653, at *I1 (C.D. Cal. July 5, 2007)
others on an as-needed basis weighed against compensating on-call time on an hourly basis). .
® plaintiff's assertions as to the frequency of call are unsupported by the cited deposition testimony. See Oppo., p. 9, Ins

4-6. While Plaintiff's Opposition claims he was required to report back to the Hospital 85 percent of the time while on .
call, his actual testimony was that he was required to report back to the hospital just 30 perdent of the time during the
week, and roughly 80 percent of the time when on call over the weekend. PI. Depo., 261:14-22, 262:7-11. Plaintiff cites

to no evidence as to the frequency with which any other employce was required to respond whi
® Although not a relevant factor under Owens, Plaintiff also asserts that on-call time is pr

stand-by, regardless of whether called in. Employees thus make money, potentially without
they are called in, the time is paid at a premium rate. There is thus a significant financial bene!

ile on call.
‘imarily for the benefit of

foing anything. Further, if
‘it to employecs.

Defendant without citation to any evidence. However, it is undisputed that employees ca an hourly rate while on

'© Despite the fact that Plaintiff now offers nothing more than his self-serving declaration, he acknowledged at deposition

that he has no knowledge about what any other employee did while on call. Pl. Depo., 271:7-9.

ll.

DEFENDANTS' REPLY MPA ISO MOTION FOR NONCERTIFICATIONaoa

0

28

LITTLER MENDELSON, F.C,
30! eCrs Seat

une
Nanaas Ci Ma E08

from the hospital (the “mountain girls”), and the units simply “fill in” untill
report back. Castillo Depo., 15:11-22."" It is exactly this type of individualize
completed employee-by-employee, thereby rendering Plaintiffs on-call clai:
treatment. Amiri v. Cox Communs, Cal., LLC, 272 F, Supp. 3d 1187 (2017
strike claim which necessarily requires Court to assess difference between
employee, specific procedures, frequency of calls, if the employee engaged in|

call, and so on).

those emplbyees can
analysis th; it must be
n unsuitable for class
(granting motion to
geography, types of

personal activities on

Moreover, any analysis as to on-call or stand by restrictions must be considered against the
i

backdrop of the healthcare industry, where numerous courts have “concluded that an employee's on-

call time was not compensable time under the FLSA even where the employer

requirements on the employce’s freedom, such as requiring the employee fo remain...
i

employer’s premises.” Dickhaut v. Madison Cty., Jowa, 707 F. Supp. 2d 883,
DePriest v. River W. LP, 187 F. App’x 403, 406 (Sth Cir. 2006) (on-call tim
facility not compensable under the FLSA). Here, there is no restriction tl
premises. Rather, at most, employees are required to respond within twe
(although individual managers may grant additional leeway). Such restriction

found to be noncompensable. See, e.g., Halferty v. Pulse Drug Co., 864 F.2d

1989): (finding that an on-call ambulance dispatcher, who was required to sti

p.m. until 8:00 a.m. five nights a week not entitled to compensation under

Sacred Heart St. Mary’s Hospitals, Inc., 164 F.3d 1056, 1058 (7th Cir. 1999

technicians’ on-call time was not compensable under the FLSA even though tl

placed more stringent

on the
|
888 (S.D. Iowa 2009);
e spent at t hospital

at anyone remain on
nty to thirty minutes
s have routinely been
1185, 1189 (Sth Cir.
ry at home from 5:00

lhe FLSA); Dinges v.
}) (emergency medical

hey had to stay within

the general vicinity of their town, Tomahawk, due to the 7-minute response time); Pilkenton v.

Appalachian Reg'! Hosps., Inc., 336 F. Supp. 334, 338 (W.D. Va. 1971) (stand by time during which
4

employee required to stay within 20 minute radius of hospital not compensable

" See also Castillo Depo, 52:21-53:11 (no restrictions while on call, even with regard to co,
Notably, a sobriety requirement does not render on-call time compensable under the}

employee not report under the influence... is a common requirement that does not trigs
12,

Equip., Inc., 26 F.3d 131 (9th Cir. 1994) (opinion not certified for publication) se

under the FLSA).

{

suming a glass of wine).
fsa. Miner v. B& C
irement that an on-call
er FLSA overtime”).

DEFENDANTS’ REPLY MPA ISO MOTION FOR NONCERTIFICATION28

LITTUER MENDELZON, Pc.

b. Agreements Between the Parties Establish that On Call Time is
not Compensable as Time Worked Under the FLSA.

Plaintiff's assertions as to the alleged compensability of on-call or ‘stand-by time further
i

fact that hundreds of putative class members are unionized, and the relevant! collective

ignore the express agreement of the Parties. Indeed, Plaintiff's Opposition mi kes no mention of the
(vein

agreements set an hourly rate for on-call/stand-by work and further provide that “{hJours of stand-
by/on-call will not be considered hours worked...” See, e.g., Holzer Decl., 6, Exhs. A . 163 of
CBA); B (pgs. 159-60 of CBA). Under such circumstances, on-call tinje cannot be deemed
compensable. Cornish, supra, 2009 WL 10671024, at *7 (triage nurse’s on-call time not
compensable in light of express agreement in employee handbook which “unambiguously” excluded
on-call hours “not actually worked”); DePriest v. River W. LP, 187 F. App’x 403, 406 (5th Cir.
2006) (dismissing claims where a radiology technician “willingly entered ind a written agreement”

to remain on the hospital premises while on call at a reduced hourly rate).

The same is true whether there is an express, constructive, and/or implied agreement betwecn
the parties. See, e.g., Henry v. Med-Staff, Inc., 2007 WL 1998653, at *12 (CD. Cal. July 5, 2007)
(holding on-call time not compensable because healthcare staffing coordinators sro to cover

on-call assignments after receiving flat rate compensation rather than hourly|compensatiyn for on-

|
call assignments; this created a “constructive agreement between the parties that on-call time was not
cnn before he

subject to hourly compensation”). Here, Plaintiff knew of on-call/stand-by res|
was even hired by the Hospital. Moreover, the job description he acknowledged in writing also sct
forth his on-call responsibilities. Plaintiff's claim thus fails.

3. Lyle’s Meal and Rest Period Claims Are Not Subjectito Common Proof.

a. Plaintiff's Assertion That Defendant’s Meal Period Waivers Are
Per Se Invalid Is Unsupported And Contrary To the Express
Language of the Wage Order. i
Even though DHM has never actually revoked a waiver'?, Plaintiff; argues DHM’s meal
waiver forms are purportedly per se invalid as they allow both the employee and DHM to fevoke the

waiver. Not surprisingly, Plaintiff offers no legal support for this Propesiep. In fact, Plaintiff's

” Holzer Depo., 242:1-6.
13.

DEFENDANTS' REPLY MPA ISO MOTION FOR NONCERTIFICATION28

LITTLER MENDELSON, PC,

argument contradicts the plain language of the Wage Order, which requires both the employer and
employee agree to the waiver. Moreover, Plaintiff's counsel made this identical argument in both the
Woods and Dezan matters. See Defendant’s Request for Judicial Notice. In both cases, the Courts

rejected the theory and denied class certification.

To certify a class, Plaintiff must submit a viable cause of action. Palacio v. Jan & Gail's
Care Homes, Inc., 242 Cal. App. 4th 1133, 1140-41 (2015). Plaintiff's meat claim is raised under
LC §§ 226.7 and 512 and Wage Order 5, none of which support a cause of action for “improper
waiver.” Instead, each forbids the failure to provide meal periods. Thus even if the waiver at issue is
defective, which it is not, the salient inquiry comes down to whether meal periods were prdvided, not
whether the words on a waiver form were somehow imperfect. As vrata herein, th¢ evidence
shows there was no universal practice to deny meal periods and Plaintiff| presents no contrary
evidence outside of individual anecdotes. As such, individual inquiries are necded and certification

of the improper waiver theory is unwarranted.

b Plaintiff Admits There is no Common Policy or Practice to
Require Surgical Employecs to Don or Doff Protective Gear
During Their Thirty Minute Mea} Period.

Plaintiff clearly and unequivocally testified that he never saw anything in writing, nor was
verbally instructed, to don or doff his sterile scrubs while off-the-clock. PL. Depo., 218:13-23;
249:12-250:25. Despite this, Counsel attempts to assert that surgical employees do not receive
complete, thirty minute off-duty meal breaks because employees are purportedly required to don and
doff their protective gear during their thirty minute meal period. First, Plaintiff misconstrues the
Holzer deposition testimony in this regard, claiming that she testified that or te “no
more than 30 minutes”, when she really only testified to the fact that employces are entitled to
receive a full thirty minute meal break. She further testified that donning land doffing’ scrubs is
considered work time which should be done while on the clock. Holzer Depo.,}123:21-124:17. There
is thus nothing in her testimony to support the notion that employees did not réccive thirty minutes —

or perhaps even more — off the clock for their meal periods. Indeed, the evidence is clear that

surgical employees do receive complete meal breaks, irrespective of any donning of doffing

14,

DEFENDANTS' REPLY MPA ISO MOTION FOR NONCERTIFICATION

|
\28

Ne

requirements. '> For example, as set forth in the Ugalino declaration, surgical ¢
practices when taking their meal breaks. Some employees like to leave the Hos
fast food restaurant (e.g., In and Out Burger, McDonalds, and Car!’s Jr),

like to eat in their cars, the Hospital’s cafeteria, or employee breakroom. Foi

employee breakroom, they often go get their food first and then clock out for|

mployees have varied
pital to go to a ncarby
hile other employces
those who eat in the

their meal periods on

their way to the breakroom. Ugalino Decl., | 8. Ugalino has never disciplined employees for doing

so, and his deposition testimony reflects that employees are given additional time to clock in at the

end of their lunch break to change, if necessary.'° Indeed, Plaintiff admitted

longer than 30 minutes, and was never disciplined. Pl. Depo., 201:19-202:7.

to taking meal breaks

e There Is No Evidence To Support Plaintiff's Claim That Surgical

Employees Must Don or Doff During Rest B

Plaintiff asserts, again without citation to supporting evidence, that

efendant purportedly

has a common policy or practice to require surgical employees to don or doff sterile scrubs during

rest breaks. However, employees are free to take rest breaks within the Hospital without any

requirement that they change. '6 Ugalino Depo., 24:3-11. Even if surgical employees opt to leave

the premises, they are provided additional time to change, if necessary. Ugalino Depo. 38:4-12.

surgical gown, even if leaving the Hospital’s premises. Ugalino Depo., 40:

Moreover, for five years of the statutory period, putative class members ot
;
t

period claim cannot be certified. 7 i

simply don a green

41:2, Plaintiff's rest

d. Plaintiff's Assertions as to Meal and Rest Periods While on Stand-

By or On-Call Have No Evidentiary Basis. |

Despite the fact that employees are free to engage in personal activities while on on-call,

3 Notably, for a majority of the class period there was no requirement to don and doff scrubs if an employee opted to

leave the Hospital for lunch. Rather, the employee could simply put on a green surgical gown,
41:2

1S Employees are not discouraged from leaving the Hospital campus for lunch, Ugalino Depo.
'S Plaintiff's citation to deposition testimony provided by Ugalino does not include referey
following review of the deposition transcript.

Ugalino Dep}., 40:9-

37:19-25, 39:28-20.
ce to clarifications made
j

16 plaintiff admitted at deposition that he was routinely able to take his morning rest break without issue, and others

report secing him on break. Pl. Depo., 208:13-209:7 (he was able to take his first rest bi
surgical cases 1-2/week, depending on whether patients showed up on time); Ugalino Decl., 4
17 To the extent counsel attempts to assert that surgical employee were somehow required to
rest breaks, it does not follow that the Hospital failed to authorize or permit such breaks. Hub
2018 WL 5264141 (C.D. Cal. March 16, 2018) (citing to Augustus and holding that requiring
premises is not sufficient to establish employer control and does not create a claim).

15.

‘cak between his first two
9.

emain on premises during
‘bs v. Big Lots Stores, Inc.,
jan cmployce to remain on

DEFENDANTS! REPLY MPA ISO MOTION FOR NONCERTIFICATIONou KN HM

28

LITTLER MENDELSON, P.C.

edes Sree,

aren 08

Plaintiff asserts that employees were universally denied their meal and rest periods. This argument

is wholly unsupported by the evidence in this matter, including Plaintiff's ow:

that he could get something to eat, grab coffee, or go shopping while on-call.

269:16, Likewise, although omitted by Plaintiff in his opposition, Ugalino tes
get dinner with friends when on-call, go grocery shopping, and he never felt
do things while he was on call as an hourly employee. Ugalino Depo, 55:11
simply no evidence that there needs to be any action taken in less than 30
minutes, and Plaintiff's proposed subclass cannot be certified.

D. Plaintiff's Derivative Claim For Waiting Time Penalties Fail

deposition |testimony
PI al 268:21-
tified to being able to
as though he couldn’t
2.1; 56:2-19. There is

Iminutes, let alone 10

Se.

Plaintiff's waiting time penalty claim is derivative of his other claims, and cannot be certified

for the reasons discussed above. Moreover, no class for waiting time penalties'

‘can be certified based
\

on meal and rest break premiums. See Ling v. P.F. Chang's China Bistro, Inc., 245 Cal. App. 4th
i

|
1242 (2016), Kirby v. Immoos Fire Prot., Inc., 53 Cal.4th 1244, 1256-1257 (2012).
1

Further, to the extent Plaintiff seeks to certify a waiting time penalty Glass ond the filing

date of the instant lawsuit, he may not do so pursuant to the plain language of the statute:

If an employer willfully fails to pay, without abatement or reduction. |.any wages of

an employee who is discharged or who quits, the wages of the

ployee shall

continue as a penalty from the due date thereof at the same rate until paid or until an
action therefor is commenced; but the wages shall not continue forjmore than 30

days... (Emphasis added.)

Accordingly, waiting time penalties can no longer accrue once an action to recover those

penalties is filed. Here, Plaintiff filed an action to recover waiting time penalties on July 5, 2016.

Consequently, he cannot state a claim for waiting time penalties accruing thereafter. is

E. Plaintiffs Derivative Claim Under 226 Is Meritless.

Plaintiff vaguely asserts that Defendant’s wage statements are purportedly improper to the

extent they include a FLSA lump sum payment, However, the Labor Code set forth an obligation to

'8 See, e.g, DLSE Enforcement Policies And Interpretations Manual 4.5 (commencement 0}
penalties from accruing); Triad Data Services, Inc. v. Jackson, 200 Cal. Rptr. 418 (1984
section 203 as a lawsuit, citing Code of Civil Procedure section 22); Cal. Code Civ. Pro. §22

action stops |section 203
(defining “adtion” under
“An action is;an ordinary

proceeding in a court of justice by which one party prosecutes another for the declaration, enforcement, or protection of a

right, the redress or prevention of a wrong, or the punishment of a public offense.”)

16.

DEFENDANTS! REPLY MPA ISO MOTION FOR NONCERTIFICA’

TIONLITILER
Be

oN A HW RF WwW WD

include the hours and agreed upon rates of pay on an employce’s wage statements. See Cal. Labor
Code 226(a). Defendant’s pay stubs do exactly that. Fleming Decl. {ff 34, Exhs. A, B, filed
concurrently herewith. The FLSA sum, however, is not a rate of pay, but father a calculation of
additional sums owed based on hours worked and varying types of compensation which may have
been paid to an individual employee during the relevant period. This FLSA calculation varies based
on the specific work rule that applies to an employee. For example, the FLSA sum is Te for
a 12-hour shift employee on a workweek basis, while the sum for an cight-hour-shift employee who
works an 8/80 schedule is done on a pay period basis. There is nothing in Pints opposition, or
the California Labor Code itself, which requires Defendant to include any further information as to
this calculation on its wage statements.

Moreover, individual inquiries would overwhelm any common questions with respect to this

claim’ as well. Labor Code section 226(e) limits recovery to employees “suffering injury as a result
of a knowing and intentional failure” of the employer to provide proper wage statements, In this
case, each putative class member would need to establish that he or she stiffered an injury as a
consequence of receiving an improper wage statement. Plaintiff has produced no evidence
demonstrating that any putative class member could make such a showing, let alone that the injury

requirement could be decided on proof common to each and every putative class member.

F. Plaintiff Is Not Typical Of Hundreds of Putative Class Members Because He Has
Not Executed An Settlement Agreement, He is not a Union Member; and He
Worked Solely Within The Distinet Confines of the Surgery Department.

Lyle cannot meet the typicality requirement if “his background and factual: situation
require[d] him to prepare to meet defenses that [were] not typical of the defenses which may be
raised against other members of the proposed class.” Hanon v. Dataproducts|Corp., 976 F. 2d 497,

508 (9th Cir. 1992). Plaintiff makes sweeping generalizations, attempts to rewrite his deposition

testimony through the declaration he submits herewith, and woefully mischaracterizes the deposition

testimony of Traci Holzer and Ron Ugalino in an effort to allege that his claims are typical.

However, even if Lyle’s claims could pass the test for commonality, which they cannot, his claims

are not typical for several reasons that Plaintiff simply cannot dispute: (1) his claims, unlike nearly
i

all other members of the putative class, are not covered by an arbitration agreement; (2) he only
17. | |

DEFENDANTS' REPLY MPA ISO MOTION FOR NONCERTIFICATION |
1
ia BD Ww FR WN

worked solely in the surgery department, which he acknowledges is a distinct} working environment
with different practices than any other department; (3) he was not a union memiber while hundreds of
other class members are or were Union members; and (4) he has clear animosity against DHM.
Consequently, his claims are not typical of the putative class. !

Moreover, it is well-settled that, “[w]hen the purported class representative has not executed
a release and need not establish that the release is defective in his individual case, serious questions
are raised concerning the typicality of the class representative’s claims and the adequacy of his
representation of other class members.” Melong v. Micronesian Claims Com., 643 F.pd 10, 13
(1980). Plaintiff is thus not typical of any of the hundreds of employees who lave signed settlement
releases. Bernard v. Gulf Oil Corp., 841 F.2d 547, 550-51 (Sth Cir. 1988) (al plaintiff who has not
signed a release lacks standing to represent employees who have, because |“class representatives
must ‘possess the same interest and suffer the same injury’ as class members); Langbecker v.
Electronic Systems Data Corp., 476 F.3d 299, 313 (Sth Cir. 2007) (reversing certification where

class representatives did not sign releases but 9,000 of the 85,000 proposed class members did);

Carlstrom v. DecisionOne Corp., 217 F.R.D. 514, 516 (D. Mont. 2003) (same),”
G. Plaintiff's Conclusory Assertions as to a Trial Plan are Woefully Insufficient.

Lyle is required to present this Court with a trial plan, demonstrating the Court can manage
differences, but still afford due process to both sides. Duran, supra, 59 Cal. 4th at 29. “In considering
whether a class action is a superior device for resolving a controversy, the manageability of individual

issues is just as important as the existence of common questions uniting the proposed class.” Jd. at 29. A

trial plan is not just sweeping generalities and a suggestion of unspecified “stal
attempts to do here. Rather, Plaintiff must actually show how the case wi

treatment is not appropriate “if every member of the alleged class would be requi

istical prool,” as Lyle
1 be managed. Class

‘ed to litigate numerous

and substantial questions determining his individual right to recover following the ‘class judgment’ on

19 Indeed, Plaintiff's interests are actually adverse to the class in this regard. See J.P. Morgan & Co., Inc. v. Superior
Court, 113 Cal. App. 4th 195, 212 (2003). This again highlights his inadequacy as 2 proposed class representative.
Further, as noted in Defendant’s moving papers, Plaintiff's counsel likewise has conflicts given the competing interests
they serve in this matter — (1) they represent Plaintiff in his individual lawsuit against DHM; (2) with regard to the
PAGA claim, they purportedly represent the State; and (3) they scek to represent a purported flass of employees already
represented by a union, while simultaneously seeking to set aside benefits obtained through the negotiated CBA.

18. ‘

DEFENDANTS' REPLY MPA ISO MOTION FOR NONCERTIFICATION28

LITTLER MENDELSON, P.C.

common issues.” Id. at 28.

Here, Lyle dedicates a mere two sentences of his Opposition to th

: suggests statistical proof could be used to determine liability and damages.

ic issuc, and vagucly

with no explanation

whatsoever. Oppo. 20:19-22. However, Lyle’s claims cannot be resolved by a mere review of punch and

payroll data. Further, while individual issues may sometimes be managed using

tatistical sampling, the

Duran court cautioned, “[t]here must be some glue that binds class members together apart from statistical
evidence. Rather than accepting assurances that a statistical plan will eventually be developed, trial
courts would be well advised to obtain such a plan before deciding to certify a class action.” Id. at 31-32
(emphasis in original); Dailey, 214 Cal. App. 4th at 998; Mies v. Sephora U.S.A, Ine, 234 Cal. App. 4th,
967, 985 (2015) (court not required to accept a plaintiff's unjustified assurances regarding what the plaintiff
could prove, especially given evidence to the contrary).

Plaintiff asks this Court to do exactly what Duran cautioned against. He demands be Court

divine how DHM’s records will be used to manage the resolution of the c!
classes. However, the law is clear that it is the class proponent’s responsibili

judge, to put forward a viable trial plan, and when the proponent fails to do so

ims of the! proposed
ty, not that of the trial

certification should be

denied. See, e.g., Washington Mutual Bank v. Sup. Ct., 24 Cal. 4th 906, 924 (2001) (class action

proponents should not expect court to ferret through, disseminate, and craft manageable schemes when

burden clearly rests with proponents); Block v. Major League Baseball, 65 Cal, App. 4th 538 (1998)

(upholding certification denial where plaintiffs failed to provide concrete proposal as to trial of matter).

Despite his obligation to do so, Lyle has not even attempted to explain, through a Duran-compliant
trial plan, how he proposes to demonstrate class-wide liability. |

Il. CONCLUSION

Plaintiff has no basis for certifying any class in this matter. For the reasons sct fofth above,

the class action allegations of the Complaint should be dismissed, and his casc|ordered to yroceed on

an individual basis.

Dated: March 14, 2019

SHANNON R. BOYCE

LITTLER MENDELSON, P.

Attorneys for Defendants
FIRMWIDE:162976308.3 052845,1344

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DEFENDANTS! REPLY MPA ISO MOTION FOR NONCERTIFICATION