Sharon Pole v. Estenson Logistics, LLC, No. 2:2015cv07196 - Document 28 (C.D. Cal. 2016)
Court Description: ORDER GRANTING MOTION FOR CLASS CERTIFICATION 15 by Judge Dean D. Pregerson. (lc). Modified on 8/10/2016 (lc).
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Sharon Pole v. Estenson Logistics, LLC Doc. 28 1 2 O 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 SHARON POLE, individually, and on behalf of other members of the putative class, and on behalf of aggrieved employees pursuant to the Private Attorney General Act (“PAGA”), 15 Plaintiff, 16 17 v. 18 ESTENSON LOGISTICS, LLC, a Nevada limited liability company, 19 Defendants. 20 ___________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 15-07196 DDP (Ex) ORDER GRANTING MOTION FOR CLASS CERTIFICATION [Dkt. No. 15] 21 22 Presently before the Court is Plaintiff Sharon Pole’s Motion 23 for Class Certification. (Dkt. 15.) After considering the parties’ 24 submissions and hearing oral argument, the Court adopts the 25 following Order. 26 I. 27 28 BACKGROUND This case arises out of an employee classification dispute between Plaintiff Sharon Pole and her former employer, Defendant Dockets.Justia.com 1 Estenson Logistics, LLC (“Estenson”). Estenson is a third-party 2 trucking company that moves product for its customers from 3 distribution centers to retail stores located in California. 4 (Plaintiff’s Appendix of Evidence (“PA”) 6-7 (Deposition of 5 Michelle Alexander 12:2-15:5).) Plaintiff was formerly employed by 6 Estenson as a “Fleet Manager.” (Complaint ¶ 14.) Plaintiff brings 7 this action on the grounds that Estenson misclassified her as an 8 “exempt” employee and paid her on a salary basis, without any 9 compensation for overtime hours worked and missed meal periods or 10 rest breaks. (Id. ¶ 15.) 11 In the present motion, Plaintiff seeks to certify the 12 following class under Federal Rule of Civil Procedure 23(b)(3): 13 14 15 All current and former California-based salaried “Fleet Managers,” or persons who held similar job titles and/or performed similar job duties, who worked for Estenson within the State of California from September 6, 2010 to final judgment. 16 (Motion for Class Certification (“Mot.”) 1.) The gravamen of 17 Plaintiff’s class certification theory is that “Estenson 18 misclassified her and other Fleet Managers as exempt because their 19 job duties fail to satisfy any of the requirements for the 20 executive or administrative exemptions.” (Id. 1.) 21 A. 22 Estenson operates out of approximately forty-six distribution Estenson’s Operation 23 centers in California, some of which operate 24 hours a day. 24 (Declaration of Michelle Alexander ¶ 2; Alexander Dep. 26:10-17.) 25 Each location is overseen by a single Site Manager. (Alexander Dep. 26 89:21-24.) The site mangers are “ultimately . . . responsible for 27 the operations of each facility.” Each facility also employs 28 administrative staff, drivers, and yard hostlers. (Id. 23:21-24:5.) 2 1 At eleven of these facilities, Estenson employs “Fleet Managers.” 2 (Id. 15:16-16:3.) These facilities are located across California. 3 (Id. 18:7-19 (noting facilities from Redlands, CA in the south to 4 Tracy, CA in the north).) Based on the size of operations, a 5 location can have anywhere from one to five Fleet Managers employed 6 at any given time. (Alexander Decl. ¶ 4.) During her employment, 7 Plaintiff was one of two Fleet Managers at the Lathrop, CA 8 location. (Plaintiff’s Dep. 73:10-11.) 9 10 B. Fleet Manager’s Responsibilities According to Estenson’s 2013 Fleet Manager job description, 11 the position’s responsibilities include ensuring loads are 12 delivered on time, investigating complaints, ensuring company 13 safety policies are understood, assisting in safety inspections and 14 trainings, and filing paperwork generated by shipping activities. 15 (See PA 140-141.) Other versions of the job description include 16 tasks such as enforcing rules and company policies, ensuring safety 17 and compliance, internal and external customer service, HR related 18 tasks like hiring and training, scheduling, billing, complying with 19 reporting requirements, and assisting the site manager. (See PA 20 135-138.) Estenson has confirmed that these job duties apply to all 21 Fleet Managers and are not site-specific. (Alexander Dep. 58:4-8.) 22 Plaintiff asserts that, on a day-to-day basis, Fleet Managers 23 are primarily responsible for dispatching truck drivers, data 24 entry, and taking calls. (PA 190 (Allen Decl. ¶ 4.); PA 193-14 25 (Dorado Decl. ¶ 6); PA 196 (Elliot Decl. ¶ 5); PA 199-200 (Jones 26 Decl. ¶ 6); PA 202 (Taylor Decl. ¶ 5); PA 205 (Thompson Decl. ¶ 27 5.).) Fleet Managers create “route packets” based on a load 28 planners assessment of how to arrange a customer’s delivery 3 1 requests and give these packets to drivers, along with their keys. 2 (Alexander Dep. 26:22-27:24; 61:18-64:25.) Fleet Managers also 3 collect paperwork submitted by truck drivers and input into 4 Estenson’s computer system. (Alexander Dep. 73:16-24.) Furthermore, 5 Fleet Managers handle all in-bound truck driver calls, including 6 accident and maintenance reports. (Alexander Dep. 199:5-7; 92:5- 7 97:6.) Some Fleet Managers were also given a “checklist” that 8 memorializes many of these duties. (PA 143-44; PA 101-02 (Towell 9 Depo. 75:6-76:2.) 10 Estenson elaborates on this account of a Fleet Manager’s 11 duties by noting additional responsibilities. For example, Estenson 12 describes the specific considerations a Fleet Manager might accoutn 13 for when deciding how to assign a particular driver to a delivery 14 route. (Alexander Dep. 36:6-37:9; 46:16-19.) Estenson also notes 15 the various responsibilities involved in responding to customer 16 complaints or handling other customer inquiries. (Suarez Decl. ¶¶ 17 10-11.) While Estenson describes some commonalities in the Fleet 18 Manager role, it also elaborates on the differences. For instance, 19 Estenson explains that larger facilities with more drivers have 20 divided responsibilities among multiple Fleet Managers--with some 21 handling loan planning and billing and others focusing on driver 22 communications--while smaller facilities will have only a single 23 Fleet Manager who is responsible for a broader range of 24 responsibilities. (Towell Dep. 76:3-77:14.) 25 C. Classification of Fleet Managers as Exempt 26 The basis of Plaintiff’s suit is that Estenson misclassifies 27 its Fleet Managers as exempt. (Alexander Dep. 28:4-12.) As exempt 28 employees, Estenson does not pay overtime to its Fleet Managers 4 1 when they work longer than eight hours a day or forty hours a week. 2 (Alexander Dep. 122:13-124:1.) Estenson also does not provide its 3 Fleet Managers with meal and rest breaks. (Towell Dep. 59:22-60:3.) 4 According to Plaintiff, Fleet Managers routinely work longer than 5 eight hours and did not take lunch or rest breaks. (Towell Dep. 6 21:4-12; PA 191 (Allen Decl. ¶ 7); PA 194 (Dorado 7 Decl. ¶ 9); PA 118 (Pole Dep. 104:1-18); PA 191 (Allen Decl. ¶ 8 8.).) Defendants acknowledge that Fleet Managers are not entitled 9 to overtime and do not receive scheduled meal and rest breaks but 10 submit evidence that some Fleet Managers have taken lunch breaks. 11 (Suarez Decl. ¶ 15; Towell Dep. 64:9-20.) 12 II. 13 LEGAL STANDARD The party seeking class certification bears the burden of 14 showing that each of the four requirements of Rule 23(a) and at 15 least one of the requirements of Rule 23(b) are met. See Meyer v. 16 Portfolio Recovery Assocs., LLC, 707 F.3d 1036, 1041 (9th Cir. 17 2012); Hanon v. Dataprods. Corp., 976 F.2d 497, 508-09 (9th Cir. 18 1992). In determining whether to certify a class, a court must 19 conduct a “rigorous analysis” to determine whether the party 20 seeking certification has met the prerequisites of Rule 23 of the 21 Federal Rules of Civil Procedure. Valentino v. Carter-Wallace, 22 Inc., 97 F.3d 1227, 1233 (9th Cir. 1996). Rule 23(a) sets forth 23 four prerequisites for class certification: 24 (1) 25 (2) 26 (3) 27 (4) 28 the class is so numerous that joinder of all members is impracticable; there are questions of law or fact common to the class; the claims or defenses of the representative parties are typical of the claims or defenses of the class; and the representative parties will fairly and adequately protect the interests of the class. 5 1 Fed. R. Civ. P. 23(a); see also Hanon, 976 F.2d at 508. These 2 four requirements are often referred to as (1) numerosity, (2) 3 commonality, (3) typicality, and (4) adequacy. See General Tel. 4 Co. v. Falcon, 457 U.S. 147, 156 (1982). 5 In determining the propriety of a class action, the question 6 is not whether the plaintiff has stated a cause of action or will 7 prevail on the merits, but rather whether the requirements of Rule 8 23 are met. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178 9 (1974). This Court, therefore, considers the merits of the 10 underlying claim to the extent that the merits overlap with the 11 Rule 23(a) requirements, but will not conduct a “mini-trial” or 12 determine at this stage whether Plaintiffs could actually prevail. 13 Ellis v. Costco Wholesale Corp., 657 F.3d 970, 981, 983 n.8 (9th 14 Cir. 2011); see also Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 15 131 S. Ct. 2541, 2551-52 (2011). 16 Rule 23(b) defines different types of classes. Leyva v. 17 Medline Indus. Inc., 716 F.3d 510, 512 (9th Cir. 2012). Relevant 18 here, Rule 23(b)(3) requires that “questions of law or fact common 19 to class members predominate over individual questions . . . and 20 that a class action is superior to other available methods for 21 fairly and efficiently adjudicating the controversy.” Fed. R. Civ. 22 P. 23(b)(3). 23 III. DISCUSSION 24 A. 25 To show that class certification is warranted, Plaintiffs 26 must show that all four prerequisites listed in Rule 23(a) are 27 satisfied. 28 Rule 23(a) Prerequisites 1. Numerosity 6 1 Numerosity is satisfied if “the class is so numerous that 2 joinder of all members is impracticable.” Fed. R. Civ. P. 3 23(a)(1). The Ninth Circuit has elaborated that impracticable is 4 not the same as impossible but instead asks courts to determine 5 whether “potential class members would suffer a strong litigation 6 hardship or inconvenience if joinder were required.” Rannis v. 7 Recchia, 380 F. App’x 646, 650–51 (9th Cir. 2010) (citing Harris 8 v. Palm Springs Alpine Estates, Inc., 329 F.2d 909, 913–14 (9th 9 Cir.1964)). The “numerosity requirement requires examination of 10 the specific facts of each case and imposes no absolute 11 limitations.” Gen. Tel. Co. of the Nw. v. Equal Employment 12 Opportunity Comm’n, 446 U.S. 318, 330 (1980). The Ninth Circuit 13 has typically required at least fifteen members to certify a 14 class, Harik v. Cal. Teachers Ass’n, 326 F.3d 1042, 1051 (9th Cir. 15 2003), and has usually held classes of forty members or more 16 satisfy numerosity, Rannis, 380 F. App’x 651. 17 Plaintiff’s Motion for Class Certification states that the 18 putative class includes approximately “45 Fleet Managers.” (Mot. 19 11.) Both Estenson’s Opposition to the Motion for Class 20 Certification and Plaintiff’s Reply note that there are 55 21 potential class members. (Opp’n 11; Reply 15.) On these 22 representations, the court would be inclined to find the 23 numerosity requirement satisfied. Since the completion of 24 briefing, however, Estenson has submitted a Notice of Newly 25 Acquired Facts stating that thirty-four current Fleet Managers and 26 nine former employees have executed release agreements for all 27 claims at issue, leaving “only 17 former employees” in the 28 7 1 putative class. (Notice of Newly Acquired Facts ¶ 1.) Estenson did 2 not provide a copy of the release. 3 Plaintiff challenges the legal effect and enforceability of 4 these undisclosed releases. (Plaintiff’s Response to Defendant’s 5 Newly Acquired Facts ¶ 1.) According to Plaintiff, the releases 6 must be deemed invalid because they purportedly include a release 7 of the Private Attorney General Act (PAGA) claims, which requires 8 court approval. See Cal. Lab. Code § 2699(l)(2). Plaintiff also 9 contends that even if the releases exist and are valid, they do 10 not alter the class certification analysis because they only 11 release claims that pre-date the release. (Id. ¶ 3 (citing 12 Alexander Dep. 63:18-25, attached to Plaintiff’s Response to 13 Defendant’s Newly Acquired Facts.) At bottom, Plaintiff’s theory 14 of class certification is that Estenson misclassifies Fleet 15 Managers as exempt, and therefore improperly denies them mandated 16 overtime pay and breaks. Even if a current employee released their 17 prior claims, Plaintiff contends that these employees are still 18 misclassified and continue suffer the resulting harms in the 19 course of their employment. Because Plaintiff seeks to certify a 20 class of all Fleet Managers “who worked for Estenson within the 21 State of California from September 6, 2010 to final judgment,” 22 Plaintiff believes these current employees should still be 23 considered part of the class. (Mot. 1.) 24 Without knowing the specifics of the release, the court 25 cannot conclusively determine the validity of the releases. For 26 instance, the court cannot determine if the releases were invalid 27 under California Labor Code section 206.5(a), which prohibits an 28 employer from conditioning wages due on the execution of a 8 1 release. Likewise, Plaintiff correctly notes that a release of 2 PAGA claims requires court approval but the implications of that 3 are less apparent for the class certification motion. While 4 individuals cannot release an employer from liability to the 5 state, individuals can waive their own right to bring PAGA claims. 6 See Waisbein v. UBS Financial Services Inc., No. C-07-2328 MMC, 7 2007 WL 4287334, at *3 (C.D. Cal. Dec. 5, 2007). In the instance 8 case, the PAGA waiver may not have any impact on class 9 certification because Plaintiff does not claim to bring the PAGA 10 claims as a class action. To the contrary, she expressly states in 11 her class certification motion that she is bringing the PAGA claim 12 as a representative action that does not require class 13 certification. (Mot. 1.) Thus, the only filed PAGA claim at this 14 juncture–and thus the only PAGA settlement that might require 15 court approval–is Plaintiff’s representative claim against 16 Estenson. There is no reason to believe that the releases attempt 17 to waive Plaintiff’s right to pursue her PAGA action. 18 Even assuming the validity of the releases, however, the 19 putative class still meets the numerosity requirement because 20 there are more than forty members to pursue the misclassification 21 claim. While the precise number of class members has fluctuated 22 across the parties’ various filing, the last count from Defendant 23 asserts that there are “thirty-four (34) putative class members 24 who are current employees” and “seventeen (17) former employee[s] 25 . . . who have not executed binding settlement agreements with 26 Estenson.” (Notice of Newly Acquired Facts ¶ 1.) Thus, there are 27 at least fifty-one individual with a potential misclassification 28 claim against Estenson who are eligible to participate in the 9 1 putative class action. As Defendant’s notice acknowledges, “the 2 thirty-four current employees who executed release agreements are 3 now barred from pursuing claims for damages that pre-date the date 4 on which they signed the agreements . . . .” (Id. (emphasis 5 added).) 6 At least one California court has confronted precisely this 7 issue when evaluating the effect of a release where employees 8 released their employer “from all claims for unpaid overtime and 9 any other Labor Code violations,” agreed “not to participate in 10 any class action that may include . . . any of the released 11 Claims,” and acknowledged that “he or she had spent more than 50% 12 of the time performing managerial duties.” Chindarah v. Pick Up 13 Stix, Inc., 171 Cal. App. 4th 796, 798 (2009). In that case, the 14 court upheld that validity of the release because the class action 15 only concerned past unpaid overtime and the release “did not 16 purport to exonerate [the employer] from future violations.” This 17 distinction is critical because under California law, “the 18 statutory right to receive overtime pay embodied in section 1194 19 is unwaivable.” Gentry v. Superior Court, 42 Cal. 4th 443, 456 20 (2007) abrogation on other grounds recognized by Iskanian v. CLS 21 Transp. Los Angeles, LLC, 59 Cal. 4th 348, 366 (2014). Here, where 22 the purported class claim includes allegations of an ongoing 23 misclassification violation, any release by current employees of 24 past claims does not exclude these individuals from participating 25 in a class seeking to correct the misclassification. 26 With approximately fifty-one class members, the court 27 concludes that the numerosity requirement is met. Out of an 28 abundance of caution, however, the court proceeds to consider 10 1 whether even a seventeen-member class would meet the numerosity 2 requirement in this case.1 As noted aboved, the “specific facts of 3 each case must be examined to determine if impracticability 4 exists.” Haley v. Medtronic, Inc., 169 F.R.D. 643, 647 (C.D. Cal. 5 1996). In determining whether the requisite numerosity exists in 6 cases where the class number is not great, courts consider “the 7 geographical diversity of class members, the ability of individual 8 claimants to institute separate suits, and whether injunctive or 9 declaratory relief is sought.” Jordan v. Los Angeles Cty., 669 10 F.2d 1311, 1319 (9th Cir. 1982), vacated on other grounds, 459 11 U.S. 810 (1982). 12 13 (a) Geographical Diversity There is “no per se rule on the number of widely dispersed 14 plaintiffs necessary to support a finding of numerosity.” 15 McCluskey v. Trustees of Red Dot Corp. Employee Stock Ownership 16 Plan & Trust, 268 F.R.D. 670, 675 (W.D. Wash. 2010). 17 found that the numerosity requirement was met where plaintiffs 18 were merely dispersed across counties within the same state. 19 (citing Novella v. Westchester County, 443 F.Supp.2d 540, 546 20 (S.D. N.Y., 2006)); see also Brink v. First Credit Resources, 185 Courts have Id. 21 1 22 23 24 25 26 27 28 The court undertakes this inquiry both because, without knowing the specific language of the release, it may emerge that the release is more expansive than currently assumed and in the event that additional releases further alter the numerical composition of the class. In the event that additional releases are secured, district courts have found a “duty to supervise communications with potential class members exists even before a class is certified” if it is required to ensure “‘the fairness of the litigation process, the adequacy of representation, and the administration of justice generally.’” Cheverez v. Plains all Am. Pipeline, LP, No. CV 15-4113 PSG (JEMx), 2016 WL 861107, at *2 (C.D. Cal. Mar. 3, 2016) (quoting In re Oil Spill by the Oil Rig ‘Deepwater Horizon’ in the Gulf of Mexico on Apr. 20, 2010, No. 10-md-02179, 2011 WL 323866, at *2. (E.D. La. Feb. 2, 2011)). 11 1 F.R.D. 567, 570 (D. Ariz. 1999) (holding that the joinder was 2 impractical partially because class members are located throughout 3 the state of Arizona). Similar to the facts at issue here, the 4 court in Agauyo v. Oldenkamp Trucking held that joinder of the 5 proposed class of 34 was impractical because “[t]he plaintiffs are 6 truck drivers who likely live near both . . . Bakersfield, which 7 is within this District, and near Ontario, which is outside this 8 district[.]” 9 *12 (E.D. Cal., October 3, 2005). Aguayo v. Oldenkamp Trucking, 2005 WL 2436477, at Consequently, “[i]t would 10 likely be difficult for individuals to prosecute in this distant 11 forum.” 12 F.R.D. 549, 562 (N.D. Cal. 2015) (holding that numerosity was not 13 met where the proposed class had only seventeen members who were 14 all working in the San Francisco Bay Area). 15 Id.; but see Sandoval v. M1 Auto Collisions Centers, 309 In the present case, Fleet Managers are employed in at least 16 the following California cities: Lathrop, Tracy, Bakersfield, 17 Fremont, Mira Loma, Ontario, Redland, La Mirada, and Fontana. 18 (Alexander Dep. 18:10-15.) Assuming that the release of claims did 19 not result in the remaining putative class members all being 20 located in the same or nearby cities, the court finds that the 21 geographical diversity factor counsels in favor of meeting the 22 numerosity requirement. 23 (b) Ability to Bring Suit Separately 24 The ability of individual class members to bring suit 25 individually can make joinder impractical when potential class 26 members lack the financial resources to file individual suits. 27 McCluskey, 268 F.R.D. at 675. Putative class members are less able 28 to bring their claims individually when their claims are 12 1 relatively small, making it unlikely that the individual would 2 pursue relief absent class certification. 3 Services, Inc., 310 F.R.D. 593, 603 (E.D. Cal. 2015); see also 4 Chastain v. Cam, 2016 WL 1572542, at *1 (D. Ore. April 19, 2016) 5 (holding that joinder is impractical in part because “Plaintiffs 6 allege small amounts of individual damages for unpaid breaks”). 7 Individual class members are also unlikely to sue independently 8 when they face fear or retaliation from an employer. See Buttino, 9 1992 WL 12013803, at *2 (holding that numerosity was satisfied in Millan v. Cascade Water 10 part because “many individual claimants would have difficulty 11 filing individual lawsuits out of fear of retaliation, exposure, 12 and/or prejudice, such that it is unlikely that individual class 13 members would institute separate suits”); see also Aguayo, 2005 WL 14 2435477, at *12 (citing Mullen v. Treasure Chest Casino, LLC, 186 15 F.3d 620, 625 (5th Cir. 1999)) (noting that “some of the potential 16 class members are still employed with defendant and are unlikely 17 to institute action against their employer”). 18 Here, where some potential class members are still employed 19 by Estenson and where the claims are for foregone overtime and 20 breaks, the court finds that ability to individually bring suit 21 counsels in favor of finding numerosity. 22 23 (c) Relief Sought The numerosity requirement is “relaxed” when injunctive or 24 declaratory relief is sought. Sueoka v. U.S., 2004 WL 1042541, at 25 *2 (9th Cir., May 5, 2004). 26 relief sought necessarily implicates judicial economy where a 27 judgment granting an injunction would avoid duplicative suits 28 brought by other class members. This is largely because the type of See Escalante v. California 13 1 Physicians’ Service, 309 F.R.D. 612, 618 (finding that a class of 2 19 is still sufficiently numerous because “Plaintiff in this case 3 is requesting declaratory and injunctive relief” and because 4 “allowing a class action to be brought would be in the interests 5 of judicial economy”). While there may ultimately be some 6 individualized damage calculations, this putative class includes 7 claims for both injunctive and declaratory relief. Given the facts 8 presented in this case, it would be inefficient and unduly burden 9 the court’s docket to require each individual Fleet Manager to 10 11 separately litigate their misclassification claim. Evaluating the numerosity factors as a whole, and bearing in 12 mind considerations of judicial economy, Plaintiff’s putative 13 class satisfies the numerosity requirement. 14 15 2. Commonality Commonality is satisfied if “there are questions of law or 16 fact common to the class.” Fed. R. Civ. P. 23(a)(2). Note that 17 this does not mean that all questions of law and fact must be 18 identical across the class; “[t]he requirements of Rule 23(a)(2) 19 have been construed permissively, and all questions of fact and 20 law need not be common to satisfy the rule.” Ellis v. Costco 21 Wholesale Corp., 657 F.3d 970, 981 (9th Cir. 2011) (internal 22 quotation marks and brackets omitted). However, posing common 23 questions of trivial fact is not enough: the “question” must be 24 one that “will generate common answers apt to drive the resolution 25 of the litigation.” 26 2541, 2551 (2011). 27 28 Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. The common question raised by Plaintiff’s potential class is whether Estenson properly classified Fleet Managers as exempt 14 1 employees, and thus was not required to pay overtime or schedule 2 meal and rest breaks. According to Plaintiff, the commonality 3 requirement is met because the evidence demonstrates that Estenson 4 did not meet any of the requirements of invoking either the 5 administrative or executive exemption. (Mot. 20.) 6 Under California law, an individual “employed in the 7 transportation industry” qualifies as exempt if the following 8 criteria are met: 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 (1) Executive Exemption A person employed in an executive capacity means any employee: (a) Whose duties and responsibilities involve the management of the enterprise in which he/she is employed or of a customarily recognized department or subdivision thereof; and (b) Who customarily and regularly directs the work of two or more other employees therein; and (c) Who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring or firing and as to the advancement and promotion or any other change of status of other employees will be given particular weight; and (d) Who customarily and regularly exercises discretion and independent judgment; and (e) Who is primarily engaged in duties which meet the test of the exemption. . . . (2) Administrative Exemption A person employed in an administrative capacity means any employee: (a) Whose duties and responsibilities involve either: (i) The performance of office or non-manual work directly related to management policies or general business operations of his employer or his/her employer's customers; or (ii) The performance of functions in the administration of a school system, or educational establishment or institution, or of a department or subdivision thereof, in work directly related to the academic instruction or training carried on therein; and (b) Who customarily and regularly exercises discretion and independent judgment; and (c) Who regularly and directly assists a proprietor, or an employee employed in a bona fide executive or administrative capacity (d) Who performs under only general supervision work along specialized or technical lines requiring special training, experience, or knowledge; or 28 15 1 2 (e) Who executes under only general supervision special assignments and tasks; and (f) Who is primarily engaged in duties that meet the test of the exemption. . . . 3 Cal. Code Regs. tit. 8, § 11090. Plaintiff argues that Estenson’s 4 Fleet Managers do not satisfy any of the requirements for invoking 5 an exemption but this is a greater burden than Plaintiff needs to 6 take on to demonstrate commonality. The statutory test for 7 invoking an exemption is conjunctive. Thus, if Plaintiff can 8 demonstrate that all Fleet Managers do not engage in any one of 9 the required duties under each exception or that they are not 10 primarily engaged in such duties, she will have supplied a common 11 answer that will drive the resolution of this litigation. 12 Between Estenson’s uniform job description of the Fleet 13 Manager position and the testimony of Estenson’s Rule 30(b)(6) 14 witness that Estenson expects its Fleet Managers to perform the 15 same duties regardless of their employment location, Plaintiff 16 argues that commonality is satisfied. (Alexander Dep. 57:11-25; 17 58:4-8.) Defendant responds that even if a group of employees are 18 tasked with the same duties, questions about how each employee 19 performs their duty may preclude class certification in the 20 exemption classification context. (Opp’n 18-20.) In support, 21 Estenson relies on Fjeld v. Penske Logistics, LLC, No. CV 22 12-3500-GHK JCGX, 2013 WL 8360535 (C.D. Cal. Aug. 9, 2013). In 23 Fjeld, the court considered whether to certify a class of 24 Operations Supervisors who spent the majority of their time 25 “assign[ing] drivers and trucks to routes to make [timely] 26 deliveries based upon customer needs.” Id. at *5. The court 27 determined that resolution of the exemption claim turned on 28 16 1 whether this task required discretion and independent judgement. 2 Id. (“For there to be classwide answers on whether the relevant 3 tasks are exempt, Plaintiff must make a threshold showing that the 4 putative class members are preforming the tasks in a substantially 5 similar manner, e.g., by taking into account a similar set of 6 factors.”). In the absence of any evidence about how any potential 7 class members other than the plaintiff performed this task, the 8 court found that putative class did not meet the burden of 9 demonstrating commonality. 10 In the Reply, Plaintiff argues that Fjeld does not resolve 11 her certification claim because she submitted evidence about the 12 factors Fleet Managers must rely on to complete the tasks Estenson 13 posits are discretionary. (Reply 18-21.) With regard to assigning 14 drivers to routes, Plaintiff has submitted evidence that a 15 computer program decides whether a driver can be assigned to a 16 route. (Suarez Dep. at 170:8–171:10.) Likewise, with regard to 17 managing truck breakdowns, Plaintiff has submitted evidence that 18 Fleet Managers call a tow truck from a pre-approved list of 19 vendors and follow the instructions of the maintenance 20 coordinator. (Suraez Dep. 127:9-128:1.) According to Plaintiffs, 21 any choice a Fleet Manager must make are highly structured and 22 largely predetermined. 23 While there appears to be some variation in the tasks 24 individual Fleet Managers perform, there is also substantial 25 commonality in the tasks Fleet Managers are expected to perform 26 according to both job descriptions issued by Estenson and the 27 individual testimony submitted before the court. Determining 28 whether these tasks satisfy the requirements for classifying an 17 1 employee as exempt under California law is the sort of question 2 amenable to classwide resolution and adequate to satisfy the 3 commonality requirement under Rule 23(a)(2). 4 5 3. Typicality Typicality is satisfied if “the claims or defenses of the 6 representative parties are typical of the claims or defenses of 7 the class.” 8 typicality requirement is to assure that the interest of the named 9 representative aligns with the interests of the class. Typicality Fed. R. Civ. P. 23(a)(3). “The purpose of the 10 refers to the nature of the claim or defense of the class 11 representative, and not to the specific facts from which it arose 12 or the relief sought. The test of typicality is whether other 13 members have the same or similar injury . . . .” 14 Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992) (internal 15 quotation marks omitted) (citations omitted) (emphasis added). 16 Hanon v. Plaintiff argues that her claims are typical in that they are 17 premised on her employment as a Fleet Manager and that there are 18 no defenses unique to her case. Defendants do not expressly 19 challenge this claim. Perhaps Defendants’ argument that 20 commonality is not satisfied because different Fleet Managers have 21 different responsibilities can be understood to also challenge the 22 typicality of Plaintiff’s claims. But the court has already 23 determined that different Fleet Managers do not appear to have 24 such distinct responsibilities that their classification does not 25 present a common question of law. The court cannot find any 26 additional reason to doubt the typicality of Plaintiff’s claims. 27 Thus, the court concludes that typicality is satisfied. 28 18 1 4. 2 Adequacy Adequacy of representation is satisfied if “the 3 representative parties will fairly and adequately protect the 4 interests of the class.” Fed. R. Civ. P. 23(a)(4). Inasmuch as it 5 is conceptually distinct from commonality and typicality, this 6 prerequisite is primarily concerned with “the competency of class 7 counsel and conflicts of interest.” Gen. Tel. Co. of Southwest v. 8 Falcon, 457 U.S. 147, 158 n.13 (1982). Thus, “courts must resolve 9 two questions: (1) do the named plaintiffs and their counsel have 10 any conflicts of interest with other class members and (2) will 11 the named plaintiffs and their counsel prosecute the action 12 vigorously on behalf of the class?” Ellis, 657 F.3d at 985. In 13 this case, there is no dispute over this requirement. 14 B. 15 A class action may be certified under Rule 23(b)(3) if “the Rule 23(b)(3) 16 questions of law or fact common to class members predominate over 17 any questions affecting only individual members, and that a class 18 action is superior to other available methods for fairly and 19 efficiently adjudicating the controversy.” Fed. R. Civ. P. 20 23(b)(3). In making its findings on these two issues, courts may 21 consider “the class members’ interests in individually controlling 22 the prosecution or defense of separate actions,” “the extent and 23 nature of any litigation concerning the controversy already begun 24 by or against class members,” “the desirability or undesirability 25 of concentrating the litigation of the claims in the particular 26 forum,” and “the likely difficulties in managing a class action.” 27 Id. 28 19 1 2 1. Predominance “The Rule 23(b)(3) predominance inquiry tests whether 3 proposed classes are sufficiently cohesive to warrant adjudication 4 by representation.” Amchem Products, Inc. v. Windsor, 521 U.S. 5 591, 623 (1997). “Even if Rule 23(a)'s commonality requirement may 6 be satisfied by [a] shared experience, the predominance criterion 7 is far more demanding.” Id. at 623-24. Predominance cannot be 8 satisfied if there is a much “greater number” of “significant 9 questions peculiar to the several categories of class members, and 10 to individuals within each category.” Id. at 624. However, Rule 11 23(b)(3) predominance “requires a showing that questions common to 12 the class predominate, not that those questions will be answered, 13 on the merits, in favor of the class.” Amgen Inc. v. Connecticut 14 Ret. Plans & Trust Funds, 133 S. Ct. 1184, 1191 (2013). 15 Plaintiff argues that predominance is satisfied because the 16 realistic requirements of the Fleet Manager positions are 17 identical and that any variation in the position is so minimal as 18 to have no effect on the question of whether a Fleet Manager’s 19 duties satisfy any of the requirements for an administrative or 20 executive exemption. (Mot. 23-24.) Defendant asserts that there is 21 variation in the duties of different Fleet Managers. Defendant 22 also argues that this class cannot be certified because it runs 23 afoul of the holding in Comcast Corp v. Behrend, 133 S. Ct. 1426 24 (2013), that the predominance requirement is not satisfied where 25 “questions of individual damage calculations will inevitably 26 overwhelm questions common to the class.” Id. at 1433. Here, Fleet 27 Managers did not record their time and Plaintiff acknowledges they 28 did not all work the same number of hours. (Alexander Dep. 11:220 1 12:1; Response to Special Interrogatory Nos. 8-10, Gruber Decl., 2 Ex. D.) Thus, Defendant contends that there is no workable method 3 for calculating damages that would not require individual 4 determinations, which overwhelm the efficiency of the class 5 device. 6 As an initial matter, Comcast cannot be read as a general 7 prohibition on class actions when damages cannot be calculated on 8 a classwide basis. Rather, Comcast stands for the proposition that 9 a “plaintiff must be able to show that their damages stemmed from 10 the defendant’s actions that created the legal liability.” Leyva 11 v. Medline Indus., Inc., 716 F.3d 510, 514 (9th Cir. 2013). The 12 issue in Comcast was whether a particular model for calculating 13 damages was permissible if it did not only calculate the damages 14 for the theory of liability advanced by plaintiffs. Comcast, 133 15 S. Ct. at 1433. The Ninth Circuit has repeatedly held since 16 Comcast that “differences in damage calculations do not defeat 17 class certification after Comcast.” Pulaski & Middleman, LLC v. 18 Google, Inc., 802 F.3d 979, 988 (9th Cir. 2015), cert. denied, 136 19 S. Ct. 2410 (2016); accord Jimenez v. Allstate Insurance Co., 765 20 F.3d 1161, 1167 (9th Cir. 2014). 21 Here, the Plaintiff posits a single theory of class 22 liability: Fleet Managers are misclassified as exempt. Assuming 23 that can be demonstrated, Comcast requires a damage model that can 24 computer the injury caused by that misclassification without 25 including additional theories of injury that were not prove. It 26 does not stand for the proposition that no model can be utilized 27 to calculate damages. In this case, Defendants do not provide, nor 28 can the court discern, a reason why the damages model would be 21 1 unable to calculate the injury suffered by unpaid overtime and 2 missed rest and meal breaks of this class of Plaintiffs. As to the 3 question of whether individual questions of liability predominate, 4 the court concludes that this putative class satisfies the 5 predominance requirement. Defendants have submitted evidence that 6 there is some variation in the specifics tasks performed by 7 individual Fleet Managers but Plaintiffs contend that these 8 variations do not address the central question of whether Fleet 9 Managers performed any tasks that would justify an exempt 10 classification. Based on the evidence submitted of the substantial 11 overlap in the Fleet Manager role and the lack of evidence that 12 the some individual Fleet Managers are engaged primarily in exempt 13 tasks, the court finds that predominance requirement is satisfied. 14 15 2. Superiority Rule 23(b)(3) also requires a class action to be “superior to 16 other available methods for fairly and efficiently adjudicating 17 the controversy.” Fed. R. Civ. P. 23(b)(3). 18 provides four factors the Court must consider in Rule 23(b)(3)(A) 19 through (D): 20 (A) 21 (B) 22 23 (C) 24 (D) The Rule further the class members’ interests in individually controlling the prosecution or defense of separate actions; the extent and nature of any litigation concerning the controversy already begun by or against class members; the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and the likely difficulties in managing a class action. 25 Here, Plaintiff argues that Fleet Managers have nearly 26 identical responsibilities and none of those responsibilities 27 qualify the position as exempt. (Mot. 24-25.) Given this theory of 28 22 1 liability, Plaintiff contends that the class device is superior to 2 repeated mini-trials showing that a Fleet Manager performs the 3 same responsibilities and is not properly classified as exempt. 4 (Id.) Defendant main argument as to superiority is that Plaintiff 5 has not submitted “a suitable and realistic plan for trial of the 6 class claims” and that individual trials would allow the court to 7 better assess the duties and responsibilities of individual Fleet 8 Managers. (Opp’n 24 (quoting Zinser v. Accufix Research Inst., 9 Inc., 253 F.3d 1180, 1189 (9th Cir. 2001)).) In this particular 10 case, the variation between Fleet Managers’s responsibilities 11 appears limited and does not contravene Plaintiff’s contention 12 that all Fleet Managers do not engage in certain activities 13 required to invoke either the administrative or executive 14 exemption. This issue appears to amenable to classwide resolution 15 and would more efficiently answer the classification question than 16 requiring numerous individual trials. 17 IV. 18 19 CONCLUSION For the reasons set forth above, the Court GRANTS Plaintiff’s Motion for Class Certification. 20 21 IT IS SO ORDERED. 22 23 Dated: August 10, 2016 DEAN D. PREGERSON United States District Judge 24 25 26 27 28 23
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