Amy Roth et al v. CHA Hollywood Medical Center, L.P. et al, No. 2:2012cv07559 - Document 85 (C.D. Cal. 2013)
Court Description: ORDER DENYING PLAINTIFFS MOTION FOR CLASS CERTIFICATION 55 by Judge Otis D. Wright, II. (lc). Modified on 10/25/2013. (lc).
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Amy Roth et al v. CHA Hollywood Medical Center, L.P. et al Doc. 85 O 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 11 AMY ROTH, SHANA EKIN, as individuals and on behalf of themselves and all others similarly situated, 12 13 14 15 16 v. Plaintiffs, Case No. 2:12-cv-07559-ODW(SHx) ORDER DENYING PLAINTIFF’S MOTION FOR CLASS CERTIFICATION [55] CHA HOLLYWOOD MEDICAL CENTER, L.P., d/b/a CHA Hollywood Presbyterian Medical Center and Hollywood Presbyterian Medical Center; CHS HEALTHCARE MANAGEMENT, L.L.C., Defendants. 17 I. 18 INTRODUCTION 19 On May 24, 2012, Amy Roth1 and Shana Ekin filed a First Amended Complaint 20 in Los Angeles County Superior Court against Defendants CHA Hollywood Medical 21 Center and CHS Healthcare Management, LLC (collectively “HPMC”), alleging 22 claims for failure to provide mandated meal and rest breaks, failure to pay wages 23 when due, failure to provide accurate wage statements, and violation of California’s 24 Unfair Competition Law. After removal to this Court, Ekin moved to certify a class 25 of nonexempt registered nurses (“RN”) and licensed vocational nurses (“LVN”) who 26 worked 12-hour shifts at HPMC and did not receive two meal breaks and three rest 27 28 1 Amy Roth was dismissed from this case while the action was pending in Los Angeles County Superior Court. Dockets.Justia.com 1 breaks as required by California labor law. Though Ekin contends that HPMC has 2 uniform policies and practices that apply to all putative class members, the Court finds 3 that the class is not presently ascertainable, there is no common issue that would 4 resolve all class members’ claims in one stroke, and individual issues would 5 predominate over classwide determinations. The Court therefore DENIES Ekin’s 6 Motion for Class Certification.2 II. 7 HPMC includes 22 departments that employ nurses. (Aug. 24 2012 Braun Dep. 8 9 FACTUAL BACKGROUND3 64:15–25.) All RNs except for the nursing directors and director of nursing 10 operations are nonexempt employees. (Id. 87:1–3.) All LVNs are also nonexempt. 11 (Id. 87:9–11.) 12 HR Policy 504 sets forth HPMC’s policy regarding rest and meal breaks and is 13 included in its human-resources manual. (Id. 152:20–23; 154:10–25.) The policy 14 provides that employees “who work shifts equal to or in excess of ten (10) hours are 15 entitled to two (2) half (1/2) hour unpaid meal periods, unless they have signed an 16 appropriate meal waiver form for one of the two breaks.” (Braun Dep. Ex. 4.) If an 17 employee works during a meal period, “an employee will be paid for this time as ‘time 18 worked’ and may be entitled to additional amounts under applicable California wage 19 and hour law.” (Id.) The policy also states that employees are entitled to “one (1) ten 20 (10) minute break every four (4) hours worked.” (Id.) Further, employees “are 21 entitled to three (3) rest breaks when working twelve-hour shifts.” 22 /// 23 /// (Id.) 24 25 26 27 28 2 After carefully considering the papers filed with respect to this Motion, the Court deems the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; L.R. 7-15. 3 The Court has reviewed each party’s evidentiary objections and responses. To the extent that the Court relies upon evidence to which one or both parties have objected, the Court overrules those objections. The Court finds that the evidence upon which the Court relies is either within the declarants’ personal knowledge or based on nonhearsay under the Federal Rules of Evidence. 2 1 1. Meal breaks 2 Roth, a former charge nurse, testified that she heard through word of mouth that 3 she was to take only one meal break. (Roth Dep. 70:23–71:1.) She also discerned 4 that HPMC’s policy was to take only two rest breaks based on observing other charge 5 nurses. (Id. 76:5–14.) 6 HPMC’s charge nurses schedule the nurses’ meal breaks in some departments. 7 (Back Decl. ¶ 5; Gianan Decl. ¶ 6; Hamzie Decl. ¶ 6; Quilnet Decl. ¶ 7.) Other 8 employees indicated that the meal breaks are not scheduled. (Cruz Decl. ¶ 5; Liu 9 Decl. ¶ 6; Mencias Decl. ¶ 6; Moore Decl. ¶ 6; Nam Decl. ¶ 6.) Ekin adduced staff- 10 assignment sheets that do not appear to have scheduling slots for all mandated breaks. 11 (Whitlock Decl. Ex. 5.) But these sheets are only guidance, and nurses do not always 12 consult them to determine when to take their breaks. (Mar. 5, 2013 Braun Dep. 13 48:18–25; Barkley Decl. ¶ 17; Cortez Dep. 74:13–19.) 14 California law mandates certain nurse-to-patient ratios, which depend upon 15 patients’ acuity. (Doyle Dep. 57:4–8.) Acuity is not a static function but rather can 16 change from hour to hour with each patient. (Id. 56:8–18; see also Cruz Decl. ¶ 5; 17 Dilay Decl. ¶ 5; Gianan Decl. ¶ 5; Hamzie Decl. ¶ 5; Kim Decl. ¶ 6.) Ekin submitted 18 a declaration from Constance Doyle, Ekin’s designated nursing expert, who concluded 19 that “even without the detailed census data and the actual assignment sheets for each 20 department, . . . the policy and practice of the Hospital is, and has been to staff nurses 21 at the minimum needed to meet the statutory nurse to patient requirements.” (Doyle 22 Decl. ¶ 16; see also Barkley Decl. ¶ 10.) She also opined that “there were no relief 23 nurses assigned” to cover breaks despite the industry standard. (Id. ¶¶ 17, 20.) But 24 Doyle did notice that there was a float nurse, though she could not discern where the 25 nurse was assigned. (Doyle Dep. 169:17–20.) 26 Some employees testified that they were always able to take their meal breaks. 27 (Williams Dep. 51:13–15; Dilay Decl. ¶ 7; Gianan Decl. ¶ 8; Ijares Decl. ¶ 8; Lee 28 Decl. ¶ 7; Leyna Decl. ¶ 8; Matz Decl. ¶ 5; Naval Decl. ¶ 7; Oro Decl. ¶ 8; Singh 3 1 Decl. ¶ 7.) Others stated that they never received a second meal break. (Akopian 2 Decl. ¶ 5; Cortez Decl. ¶ 10; De los Santos Decl. ¶ 6; Del Rosario Decl. ¶ 9.) Some 3 employees indicated that there was sometimes no one available to relieve them for a 4 break. (Akopian Decl. ¶ 13; Baladad Decl. ¶ 6; Barkley Decl. ¶ 11; Cortez Decl. ¶ 5; 5 Cuarto Decl. ¶ 9; De los Santos Decl. ¶ 9; Del Rosario Decl. ¶ 6.) Other employees 6 used or were told to use the buddy system, meaning that one nurse would cover the 7 other’s break. (Barkley Decl. ¶ 15.) 8 Each department’s charge nurses are usually the ones designated to cover 9 nurses’ breaks. (Mar. 5, 2013 Braun Dep. 85:8–15.) There was sometimes a recourse 10 nurse to cover nurses’ breaks as well. (Cortez Dep. 23:20–23; Villanueva Decl. ¶ 7; 11 Mar. 5, 2013 Braun Dep. 51:16–17.) But the hospital does not specifically designate 12 anyone as a relief nurse. (Mar. 5, 2013 Braun Dep. 86:11–12.) HPMC also does not 13 prohibit charge nurses from having their own patient assignments. (Mar. 5, 2013 14 Braun Dep. 92:1–5.) 15 Sagra Norma Braun, HPMC’s Vice President of Human Resources, admitted 16 that there are days when nurses are not going to get proper breaks, because there are 17 “so many patients in there that they can’t take a break.” (Id. 59:13–15.) Since the 18 middle of 2011, the time clocks have displayed an electronic attestation stating that 19 the employee agrees with her hours and for the day and that she has received her meal 20 and rest breaks. (Aug. 24 2012 Braun Dep. 187:20–188:17; Mar. 5, 2013 Braun Dep. 21 71:23–72:3.) Before that time, employees could indicate incorrect hours, such as 22 missed breaks, via an “E-time correction form.” (Mar. 5, 2013 Braun Dep. 72:4–13.) 23 New employees receive a packet of forms, which includes a meal waiver. The 24 employee may waive a second meal break if she chooses. (Aug. 24 2012 Braun 25 Dep. 162:13–20; Braun Decl. ¶ 15.) Not all employees waive their second meal 26 break. (See id. Ex. G.) Of the 17 putative class members who submitted a declaration 27 in support of Ekin’s Motion, 12 signed a meal waiver. (Id. ¶ 15.) 28 /// 4 1 2. Rest breaks 2 Several putative class members testified that they were sometimes unable to 3 take rest breaks because the hospital was too busy or there was no relief nurse. (Roth 4 Dep. 81:23–25; Akopian Decl. ¶ 6.) Some employees voluntarily choose not to take 5 all of their rest breaks. (See, e.g., Aranas Decl. ¶ 10; Back Decl. ¶ 10; Cruz Decl. 6 ¶ 11; Dilay Decl. ¶ 11; Ijares Decl. ¶ 11; Lee Decl. ¶ 11.) Others always take their 7 rest breaks. 8 frequently interrupted while taking their meal and rest breaks. (Cortez Decl. ¶ 8; 9 Cuarto Decl. ¶ 7; De los Santos Decl. ¶ 5; Del Rosario Decl. ¶ 8; Gabriel Decl. ¶ 12.) (See, e.g., Kong Decl. ¶ 12.) Some nurses stated that they were 10 3. Shana Ekin 11 Ekin testified that she was free to use her discretion to take a break when she 12 felt it was appropriate. (Ekin Dep. 117:19–22.) Ekin testified that about 50 percent of 13 the time there was a midshift nurse scheduled to cover breaks. (Id. 52:4–19.) For 14 most days, the hospital was fully staffed, which allowed the nurses to maintain the 15 proper nurse-to-patient ratio. (Id. 112:4–16.) 16 Ekin signed a waiver of her second meal break and understood that she could 17 revoke it at any time. (Id. at 83:2–11; Kemple Decl. Ex. 16.) In the eight years that 18 Ekin worked at HPMC, she only missed her meal break twice. (Ekin Dep. 68:24– 19 69:2.) While Ekin documented her missed breaks, she does not recall whether the 20 hospital paid her for those breaks. (Id. 69:3–11.) 21 4. Class-certification motion 22 On September 4, 2013, Defendants removed the case to this Court. (ECF 23 No. 1.) The Court initially remanded the case, but the Ninth Circuit Court of Appeals 24 reversed that decision. (ECF Nos. 21, 30.) This Court subsequently denied a second 25 remand motion. (ECF No. 48.) On September 25, 2013, Ekin moved for class 26 certification. (ECF No. 55.) HPMC timely opposed. That Motion is now before the 27 Court for decision. 28 /// 5 III. 1 2 3 LEGAL STANDARD Under Federal Rule of Civil Procedure 23(a), a party seeking class certification must initially meet four requirements: 4 (1) the class is so numerous that joinder of all members is impracticable; 5 (2) there are questions of law or fact common to the class; 6 (3) the claims or defenses of the representative parties are typical of the 7 claims or defenses of the class; and 8 (4) the representative parties will fairly and adequately protect the 9 interests of the class. 10 The proposed class must also satisfy at least one of the three requirements listed 11 in Rule 23(b). Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2548 (2011). Here, 12 Ekin relies solely on Rule 23(b)(3), which states that a class may be maintained where 13 “questions of law or fact common to class members predominate over any questions 14 affecting only individual members,” and a class action would be “superior to other 15 available methods for fairly and efficiently adjudicating the controversy.” Fed. R. 16 Civ. P. 23(b)(3). 17 The plaintiff bears the burden of demonstrating that the putative class satisfies 18 each of Rule 23(a)’s elements along with one component of Rule 23(b). Conn. Ret. 19 Plans & Trust Funds v. Amgen Inc., 660 F.3d 1170, 1175 (9th Cir. 2011). In that 20 regard, “Rule 23 does not set forth a mere pleading standard. A party seeking class 21 certification must affirmatively demonstrate his compliance with the Rule—that is, he 22 must be prepared to prove that there are in fact sufficiently numerous parties, common 23 questions of law or fact, etc.” Dukes, 131 S. Ct. at 2551. 24 A district court must perform a “rigorous analysis” to ensure that the plaintiff 25 has satisfied each of Rule 23(a)’s prerequisites. Dukes, 131 S. Ct. at 2551; Ellis v. 26 Costco Wholesale Corp., 657 F.3d 970, 980 (9th Cir. 2011). In many cases, “that 27 ‘rigorous analysis’ will entail some overlap with the merits of the plaintiff’s 28 underlying claim. That cannot be helped.” 6 Dukes, 131 S. Ct. at 2551. When 1 resolving such factual disputes in the context of a motion for class certification, 2 district courts must consider “the persuasiveness of the evidence presented.” Ellis, 3 657 F.3d at 982 (holding that a district court must judge the persuasiveness and not 4 merely the admissibility of evidence bearing on class certification). Ultimately the 5 decision to certify a class reposes within the district court’s discretion. Zinser v. 6 Accufix Research Inst., Inc., 253 F.3d 1180, 1186 (9th Cir. 2001). IV. 7 DISCUSSION 8 Ekin moves to certify one class and three subclasses. She defines her general 9 class as all “non-exempt employees who were or are employed by Defendants during 10 any part of the proposed class period in California, and holding the title of nurse, 11 LVN, or RN, and who, at any time during the proposed class period, worked a 12- 12 hour shift, but excluding Clinical Supervisors and Directors.” (Mot. 9.) She defines 13 her Rest Break Subclass as all “class members who did not receive at least three duty- 14 free ten minute rest breaks during the course of a 12-hour shift.” (Id.) In the Meal 15 Period Subclass, Ekin includes all “class members who did not receive mandated meal 16 periods, because they were either late, or not provided at all, or were not duty-free for 17 at least 30 minutes, or because no second meal period was provided.” (Id.) Finally, 18 the Terminated Employee Sub-Class includes all “Class Members whose employment 19 with Defendants terminated during the Class Period.” (Id. at 10.) 20 A. Ascertainability 21 A class definition should be “precise, objective, and presently ascertainable,” 22 that is, the class must be “definite enough so that it is administratively feasible for the 23 court to ascertain whether an individual is a member.” O’Connor v. Boeing N. Am., 24 Inc., 184 F.R.D. 311, 319 (C.D. Cal. 1998) (internal quotation marks omitted). But 25 class treatment is not appropriate if “the court must determine the merits of an 26 individual claim to determine who is a member of the class.” Johns v. Bayer Corp., 27 280 F.R.D. 551, 555 (S.D. Cal. 2012). 28 /// 7 1 Ekin argues that one can determine who is a class member by evaluating 2 HPMC’s payroll records. She also contends that the number of missed breaks could 3 be determined by reviewing the nurse assignment sheets and patient logs from each 4 department. But HPMC asserts that Ekin’s class definition impermissibly requires a 5 liability determination of whether HPMC provided someone with a meal or rest break. 6 HPMC further argues that one cannot ascertain the class from payroll records, because 7 employees do not clock out for rest breaks, and a meal break may be provided by 8 HPMC but not taken at the employee’s election. 9 Defining the class in part based on whether a break “was provided” necessarily 10 entails a legal inquiry. As the California Supreme Court held in Brinker Restaurant 11 Corp. v. Superior Court, an employer “provides” a meal break when “it relieves its 12 employees of all duty, relinquishes control over their activities and permits them a 13 reasonable opportunity to take an uninterrupted 30-minute break, and does not impede 14 or discourage them from doing so.” 53 Cal. 4th 1004, 1040 (2012). Whether HPMC 15 “provided” meal breaks, that is, relieved each putative class member of all duties 16 during those breaks, depends upon a legal determination under Brinker. The necessity 17 for that individual inquiry belies class ascertainability. 18 In her reply, Ekin argues that even if the Court determines that she defined a 19 “failsafe class,” the Court should rewrite the class definition to avoid this result. A 20 failsafe class is one in which the class members “either win or are not in the class.” In 21 re AutoZone, Inc., Wage & Hour Emp’t Practices Litig., 289 F.R.D. 526, 546 (N.D. 22 Cal. 2012) (internal quotation marks omitted). The Ninth Circuit appears hostile to 23 these failsafe classes, though it has not yet held in a published opinion that they are 24 impermissible. Id.; Kamar v. RadioShack Corp., 375 F. App’x 734, 736 (9th Cir. 25 2010). 26 Even if the Court were to permit Ekin’s failsafe class definitions 27 notwithstanding the Ninth Circuit’s enmity, her Rest Break Subclass and Meal Period 28 Subclass definitions would create an unworkable, cart-before-the-horse problem. 8 1 There would be no way to send out individual notices without first making a legal 2 determination of whether HPMC “provided” each putative class member with proper 3 meal breaks under the Brinker formulation. 4 whether a putative class member “received” at least three rest breaks. 5 definitional 6 “administratively feasible.” O’Connor, 184 F.R.D. at 319. 7 B. difficulties foreclose any The same problem holds true with determination that Ekin’s These class is Commonality 8 Like in Dukes, the “crux of this case is commonality.” Dukes, 131 S. Ct. at 9 2250. The Supreme Court held that Rule 23(a)’s commonality element requires a 10 common contention that is “of such a nature that it is capable of classwide 11 resolution—which means that determination of its truth or falsity will resolve an issue 12 that is central to the validity of each one of the claims in one stroke.” Id. at 2551. The 13 focus is not just on raising common questions, “even in droves—but, rather the 14 capacity of a classwide proceeding to generate common answers apt to drive the 15 resolution of the litigation.” Id. (internal quotation marks omitted). 16 Ekin argues that HPMC has several policies and practices that uniformly impact 17 her putative class. First, she contends that HR Policy 504 does not comport with 18 Wage Order No. 5,4 because it fails to acknowledge an employee’s entitlement to a 19 rest break for every four hours worked, “or major fraction thereof.” Second, she 20 asserts that HPMC’s actual policy is to permit only two rest breaks during a 12-hour 21 shift despite nurses being entitled to three rest breaks for 12 hours worked. Ekin 22 further argues that HPMC uniformly permits employees to be interrupted during their 23 meal and rest breaks, thereby preventing the breaks from being duty-free. Doyle, 24 Ekin’s expert, opined that HPMC also has a standard policy of only staffing the 25 minimum number of nurses necessary to meet each department’s statutory nurse-to 26 27 28 4 Wage Order No. 5 provides in relevant part that the “authorized rest period time shall be based on the total hours worked daily at the rate of ten (10) minutes net rest time per four (4) hours or major fraction thereof.” Cal. Code Regs. tit. 8, § 11050(12)(A) (emphasis added). 9 1 patient ratios, which Ekin contends precludes nurses from taking breaks. Lastly, Ekin 2 asserts that HPMC has a companywide policy of requiring all nurses to sign a waiver 3 of their second meal break upon being hired. 4 HPMC ardently disputes Ekin’s alleged common questions. HPMC points out 5 that while HR Policy 504 may omit the “or major fraction thereof” language, the 6 policy specifically states that employees “are entitled to three (3) rest breaks when 7 working twelve-hour shifts.” HPMC also argues that declarations from putative class 8 members show nurses taking anywhere from no rest breaks to as many as they 9 wanted. The declarations also run the gamut on meal breaks, with nurses differing on 10 whether they took two meal breaks. For those putative class members who appear on 11 payroll records to have missed a break, HPMC contends that Ekin has not offered a 12 common method of determining whether HPMC timely provided a break to a nurse 13 who then voluntarily did not take the break until later. Likewise, HPMC argues that 14 there is no way to assess if and why any putative class member worked through a 15 break. Defendants also submitted evidence of several nurses who refused to sign the 16 meal-break waiver and others who voluntarily signed it—including Ekin herself. 17 Ekin has not demonstrated a common factual thread that ties together all 18 putative class members’ claims. First, HR Policy 504’s validity does not constitute a 19 common question for the putative class with respect to rest breaks. While Ekin makes 20 much of the fact that the policy omits the “or major fraction thereof” language 21 contained in Wage Order No. 5, whether that omission renders the policy facially 22 invalid under the California Labor Code is not an issue in this case. Ekin limits her 23 class definition to only nonexempt nurses who “worked a 12-hour shift.” (Mot. 9.) 24 With nurses working 12 hours, there is no issue of the nurses potentially not having 25 received a break at a fraction of four hours, as 12 hours evenly divides into three, four- 26 hour periods—and thus three mandated rest breaks. HR Policy 504 specifically states, 27 “Employees are entitled to three (3) rest breaks when working twelve-hour shifts.” 28 /// 10 1 There is simply no “fraction thereof” issue—and thus no commonality stemming from 2 HR Policy 504. See Brinker, 53 Cal. 4th at 1029. 3 Neither has Ekin established any uniform policy or practice that rendered each 4 putative class member too busy or unable to take statutorily mandated rest or meal 5 breaks. Many declarants testified that they frequently did not have adequate coverage 6 to take proper breaks. But many others nurses asserted that they were able to take 7 their breaks by using the buddy system or being relieved by a charge or recourse 8 nurse. The fact that some putative class members had no issue taking proper breaks 9 demonstrates that there will be no way to determine that HPMC has a uniform, 10 classwide policy of rendering employees unable to take rest and meal periods in each 11 instance. See Gonzalez v. Millard Mall Servs., Inc., 281 F.R.D. 455, 463-64 (S.D. 12 Cal. 2012) (“Because of the varying declarations and conflicting facts of the putative 13 class members, Plaintiffs have failed to show that Defendants had a common policy 14 that ‘prevented’ employees from taking meal breaks and/or failed to ‘permit and 15 authorize’ employees to take rest breaks under Rule 23(a)(2).”). 16 Rather, adjudication of these claims would require an individual determination 17 of whether a particular nurse was too busy, had no coverage, or both for each rest and 18 meal break to which she was entitled. When the impact of an employer’s policies 19 depends on each individual employee’s circumstances, class certification is not 20 appropriate. Brown v. Fed. Express Corp., 249 F.R.D. 580, 586 (C.D. Cal. 2008). 21 Doyle testified that “it appears the policy and practice of the Hospital is, and 22 has been to staff nurses at the minimum needed to meet the statutory nurse to patient 23 requirements.” 24 Doyle’s opinion qualifies for admission under Federal Rule of Evidence 702. 25 Admissibility of expert testimony “entails a preliminary assessment of whether the 26 reasoning or methodology underlying the testimony is scientifically valid and of 27 whether that reasoning or methodology properly can be applied to the facts in issue.” 28 Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592–93 (1993). The testimony But the Court is not persuaded that Ekin has demonstrated that 11 1 must, among other things, be based on sufficient facts or data and be the product of 2 reliable principles and methods. Fed. R. Evid. 702(b), (c). 3 Before giving her opinion, Doyle reviewed 11 declarations and about 42,000 4 staffing and assignment documents. (Doyle Dep. Errata Sheet; 66:17–23.) But Doyle 5 did not review the acuity of any HPMC patients in coming to her opinion. (Id. 74:5– 6 8.) Neither did she conduct any independent investigation. (Id. 82:11–25.) She 7 further admits that Ekin did not provide Doyle with patient-census information, and if 8 Doyle had received this information, she could have “come to very definitive 9 conclusions as to the compliance by the Hospital with the required nurse to patient 10 ratios.” (Doyle Decl. ¶¶ 14–15.) 11 Without having this patient information, it is difficult to understand how Doyle 12 could come to any reliable inference about whether HPMC only staffed the minimum 13 number of nurses to meet the statutory ratios. One cannot determine a nurse-to-patient 14 ratio without having the patient side of the calculation. And without determining this 15 alleged bare-staffing practice, there is no way to tell on a classwide basis whether 16 HPMC invariably prevented all putative class members from taking rest and meal 17 breaks. Indeed, several putative class members indicated that they were able to take 18 proper breaks—a factor counseling against a commonality determination. 19 Even if there were some theoretical way to determine the nurse-to-patient ratio 20 for each of HPMC’s 22 departments that employ nurses, those calculations would 21 vary depending on the time each nurse took her breaks. One would also have to 22 determine on an individual basis whether the particular department was at that discrete 23 point in time minimally staffed to meet the ever-shifting ratio. There is nothing 24 “common” about that individualized inquiry. 25 Ekin’s assertion that nurses were frequently interrupted during their breaks also 26 does not satisfy the commonality requirement. There is no way to determine “in one 27 stroke” whether a particular break for a particular putative class member was 28 interrupted and to what degree. The nurses themselves differ on whether these 12 1 interruptions prevented them from taking duty-free breaks. Ekin did not, for example, 2 show that a putative class member would invariably face a particular type of 3 interruption during each break. 4 Further, Ekin alleges that HPMC has a common policy of requiring all 5 employees to sign a meal waiver as a condition of employment. An employer’s 6 blanket requirement that all employees sign a waiver of a second meal break may 7 satisfy the commonality requirement. See Faulkinbury v. Boyd & Assocs., Inc., 216 8 Cal. App. 4th 220, 234 (Ct. App. 2013). But HPMC submitted evidence that at least 9 28 employees refused to sign the waiver. (Braun Decl. Ex. G.) That substantial 10 number squarely contradicts Ekin’s condition-of-employment assertion. 11 The Court therefore finds that Ekin has not established any common contention 12 the determination of which “will resolve an issue that is central to the validity of each 13 one of the claims in one stroke.” Dukes, 131 S. Ct. at 2551. 14 Ekin’s other causes of action suffer a similar definitional fate. She admits in 15 her Motion that her failure-to-pay-wages-when-due, failure-to-provide-accurate-wage- 16 statements, and Unfair Competition Law claims all derive from HPMC’s alleged 17 failure to provide proper rest and meal breaks. Since the Court finds that Ekin has not 18 demonstrated the requisite commonality for her break claims, the same finding holds 19 true for Ekin’s remaining claims. 20 C. 23(b)(3) requirementS 21 The Supreme Court has held that Rule 23(b)(3)’s predominance inquiry 22 assesses “whether the proposed classes are sufficiently cohesive to warrant 23 adjudication by representation.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623 24 (1997). 25 commonality requirement. Id. at 624. Under the Supreme Court’s recent decision in 26 Comcast Corp. v. Behrend, damages must be “capable of measurement on a classwide 27 basis” to establish predominance. 133 S. Ct. 1426, 1433 (2013). Otherwise, questions 28 of “individual damages calculations will inevitably overwhelm questions common to The predominance element is “far more demanding” than Rule 23(a)’s 13 1 the class.” Id. Rule 23(b)(3) also requires that class-action treatment be the superior 2 method of adjudicating the dispute. 3 Ekin asserts that because all of the putative class members’ claims result from 4 HPMC’s same employment practices, common liability issues predominate. She also 5 cites to the dissent in Comcast and argues that the Supreme Court’s decision should 6 not be read to impose a requirement that damages be measurable on a classwide basis. 7 HPMC contends that one cannot use the nurse-to-patient ratio to determine 8 whether the putative class members were too busy to take breaks, because one cannot 9 know what the ratio was at any given time. HPMC also argues that even if Ekin could 10 establish a common policy of not providing proper rest and meal breaks, she has not 11 identified a common method of proof to determine who took breaks, when, and why. 12 As the Court already determined, HR Policy 504 does not provide the requisite 13 common question sufficient for class certification. And without that common thread, 14 one must engage in individual inquiries regarding each putative class member to 15 determine if, when, and why a nurse did or did not take all mandated breaks. As one 16 district court aptly noted, “a plaintiff must do more than show that a meal break was 17 not taken to establish a violation. Instead, he must show that the employer impeded, 18 discouraged, or prohibited him from taking a proper break.” Washington v. Joe’s 19 Crab Shack, 271 F.R.D. 629, 641 (N.D. Cal. 2010). The crucial inquiry therefore “is 20 the reason that a particular employee may have failed to take a meal break.” Id. 21 (finding for this reason that common issues did not predominate). 22 Neither does Ekin’s argument that one could look to HPMC’s payroll records to 23 determine which putative class members were not provided with required rest and 24 meal breaks help the predominance inquiry. Even assuming that the records are 25 accurate, “the resources that would be expended on determining the reason for missed 26 breaks would exceed those saved by classwide determination of the number of breaks 27 missed. Assuming that the timesheets are accurate, it would take little time for the 28 /// 14 1 number of missed breaks to be established in separate actions.” Brown, 249 F.R.D. at 2 587 (denying class certification). 3 The same holds true for each department’s assignment sheets. The assignment 4 sheets do not reflect why nurses missed breaks, how late the breaks were provided, 5 whether a break was interrupted, or whether an employee waived a break. Several 6 putative class members testified that they did not even consult the assignment sheets 7 in determining when to take their rest and meal breaks. Without any documentary 8 evidence to review, one would have to interview each class member to determine 9 whether she missed breaks and the circumstances surrounding each discrete occasion. 10 The Court therefore finds that common issues do not predominate over noncommon 11 questions. Individual trials would also be the superior method of adjudicating each 12 nurse’s claims—not a class action. 13 D. Numerosity, typicality, and adequate representation 14 Since the Court finds that Ekin has not established Rule 23’s commonality 15 requirement or that common questions predominate, the Court need not address the 16 Rule’s remaining requirements. V. 17 CONCLUSION 18 The Court finds that Ekin has not demonstrated Rule 23’s requirements of 19 ascertainability, commonality, or predominance. The Court consequently DENIES 20 Ekin’s Motion for Class Certification. (ECF No. 55.) 21 IT IS SO ORDERED. 22 23 October 25, 2013 24 25 26 ____________________________________ OTIS D. WRIGHT, II UNITED STATES DISTRICT JUDGE 27 28 15
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