Vazquez v. Kraft Heinz Foods Company et al, No. 3:2016cv02749 - Document 48 (S.D. Cal. 2017)
Court Description: ORDER Granting in Part and Denying in Part Plaintiffs' Motion to Compel Further Discovery [ECF No. 42 ]. Signed by Magistrate Judge Barbara Lynn Major on 12/13/2017. (ajs)
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Vazquez v. Kraft Heinz Foods Company et al Doc. 48 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 16 ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION TO COMPEL FURTHER DISCOVERY Plaintiffs, 14 15 Case No.: 16cv2749-WQH (BLM) ENRIQUE VAZQUEZ, SERGIO ALFONZO LOPEZ, and MARIA VIVEROS, individually and on behalf of themselves and others similarly situated, v. [ECF No. 42] KRAFT HEINZ FOOD COMPANY, et al., Defendants. 17 18 19 Currently before the Court is Plaintiffs’ November 10, 2017 motion to compel further 20 discovery [ECF No. 42 (“MTC”)], Defendant’s November 17, 2017 opposition to Plaintiffs’ motion 21 to compel [ECF No. 46 (“Oppo.”)], and Plaintiffs’ November 22, 2017 reply to Defendant’s 22 response [ECF No. 47 (“Reply”)]. For the reasons set forth below, Plaintiffs’ motion to compel 23 is GRANTED IN PART and DENIED IN PART. 24 I. FACTUAL BACKGROUND 25 The instant class action matter was removed to this Court on November 7, 2016 from the 26 San Diego Superior Court. ECF No. 1. On May 1, 2017, District Court Judge William Q. Hayes 27 ordered the instant class action to be consolidated with Lopez v. H.J. Heinz Company, L.P., et 28 al., case number 17cv77-WQH (AGS), and the instant action was designated the lead case. ECF 1 16cv2749-WQH (BLM) Dockets.Justia.com 1 No. 26. On May 9, 2017, Plaintiffs filed a consolidated class action complaint (“Complaint”) 2 pursuant to Judge Hayes’ Order. ECF No. 29. Plaintiffs, non-exempt employees of Defendant 3 Kraft Heinz in California, allege that they and those similarly situated: 4 (1) were underpaid overtime wages owed to them, due to an improper calculation of their regular rate of pay, during the time period of September 8, 2012 to the present; (2) were underpaid all wages owed to them, due to a rounding mechanism with Defendant’s time-keeping system, which systematically favored the employer, during the time period of September 8, 2012 to the present; (3) were underpaid all wages owed to them, due to donning and doffing protective gear, during the time period of September 8, 2012 to the present; (4) were underpaid all overtime wages when employees who worked pursuant to an Alternative Workweek Schedule worked more than eight hours in a day, but were required to work less hours than provided for by the Alternative Workweek Schedule, during the time period of September 8, 2012 to the present; (5) were not provided with all legally required meal periods, or paid any Labor Code section 226.7 premium payments in lieu thereof, when a legally required meal period was not provided, during the time period of September 8, 2012 to the present; (6) were not authorized or permitted to take all legally required rest periods, or paid any Labor Code section 226.7 premium payments in lieu thereof, when a legally required rest period was not provided, during the time period of September 8, 2012 to the present; and (7) who worked for Defendant during the time period of September 8, 2012 to the present and who separated their employment with Defendant from September 8, 2013 to the present, and were issued inaccurate wage statements in violation of Labor Code section 226 and were not paid all wages owed upon their separation of employment from Defendant in violation of Labor Code sections 201-203. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 MTC at 7; Complaint at 6-12, 16-17. Of the three named Plaintiffs, Vazquez and Lopez worked 24 at a Kraft Heinz location in San Diego, and Plaintiff Viveros worked at a Kraft Heinz location in 25 Fullerton. Id. at 8. 26 /// 27 /// 28 /// 2 16cv2749-WQH (BLM) 1 2 II. LEGAL STANDARD The scope of discovery under the Federal Rules of Civil Procedure is defined as follows: 3 Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable. 4 5 6 7 8 9 Fed. R. Civ. P. 26(b)(1). 10 District courts have broad discretion to determine relevancy for discovery purposes. See 11 Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002). District courts also have broad discretion 12 to limit discovery to prevent its abuse. See Fed. R. Civ. P. 26(b)(2) (instructing that courts must 13 limit discovery where the party seeking the discovery “has had ample opportunity to obtain the 14 information by discovery in the action” or where the proposed discovery is “unreasonably 15 cumulative or duplicative,” “obtain[able] from some other source that is more convenient, less 16 burdensome, or less expensive,” or where it “is outside the scope permitted by Rule 26(b)(1)”). 17 An organization may be deposed in the following manner: 18 In its notice or subpoena, a party may name as the deponent a public or private corporation, a partnership, an association, a governmental agency, or other entity and must describe with reasonable particularity the matters for examination. The named organization must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify. A subpoena must advise a nonparty organization of its duty to make this designation. The persons designated must testify about information known or reasonably available to the organization. This paragraph (6) does not preclude a deposition by any other procedure allowed by these rules. 19 20 21 22 23 24 25 26 27 28 Fed. R. Civ. P. 30(b)(6). III. DISCUSSION Plaintiffs claim that Defendant Kraft Heinz operates eight locations throughout California 3 16cv2749-WQH (BLM) 1 that employ putative class members.1 MTC at 6. The three named Plaintiffs worked at two of 2 the eight locations, and Defendant has refused to respond to any discovery beyond those two 3 locations. 4 locations. Id. at 12. Specifically, Plaintiffs seek an order from the Court requiring: (1) deposition 5 testimony from Defendant’s Rule 30(b)(6) witness as to the relevant policies and practices at all 6 eight California locations; (2) a sampling of putative class member contact information for 7 Defendant’s eight California locations that employed putative class members; and (3) a sampling 8 of putative class member timekeeping and payroll records for Defendant’s eight California 9 locations that employed putative class members. Id. Id. Plaintiffs seek to conduct discovery regarding all of Kraft Heinz’s California 10 Plaintiffs argue that the discovery sought is relevant and discoverable under Rule 26, and 11 that Plaintiffs have made a prima facie showing that these issues impact employees at all of 12 Defendant’s locations in California. Id. Defendant opposes discovery beyond the two facilities 13 where the named Plaintiffs worked because Defendant contends that Plaintiffs have failed to 14 make the required prima facie showing that the elements of Rule 23 are satisfied or that 15 discovery is likely to produce substantiation of the class allegations. Oppo. at 7-9. Defendant 16 argues that Plaintiffs’ allegation that Defendant’s payroll is “centralized” is unsupported and that 17 Plaintiff has provided no evidence that breaks or meals were missed, short or late. Id. at 13-17. 18 Plaintiffs respond in their reply brief that they have provided significant evidence that the 19 requested discovery is likely to “produce substantiation of the class allegations” as required by 20 Mantolete v. Bolger, 767 F.2d 1416, 1424 (9th Cir. 1985), and that Defendant improperly argues 21 merits-based issues. Reply at 3-7. Plaintiffs also contend that they have evidence of missed 22 meal periods and that Defendant misrepresented this evidence to the Court. Id. at 7-9. 23 24 25 26 27 28 The scope of pre-class certification discovery lies within the sound discretion of the trial Contrary to Plaintiffs’ assertion that Kraft Heinz operates eight locations in California, Defendant states that it has employed approximately 3,593 hourly, non-exempt individual at the following eleven locations in California since September 8, 2012: San Diego, Fullerton, Tulare, Irvine, Greenfield, Chatsworth, Stockton, San Leandro, Escalon, and two different locations in Fresno. Oppo. at 5 (emphasis added). 1 4 16cv2749-WQH (BLM) 1 court. Coleman v. Jenny Craig, Inc., 2013 WL 2896884, at *4 (S.D. Cal. June 12, 2013) (citing 2 Kamm v. Cal. City Dev. Co., 509 F.2d 205 (9th Cir.1975)). In seeking discovery before class 3 certification, Plaintiffs bear the burden of making a prima facie showing that the Federal Rule of 4 Civil Procedure 23 requirements are satisfied or that discovery is likely to substantiate the class 5 allegations (Mantolete Burden). Salgado v. O'Lakes, 2014 WL 7272784, at *4 (E.D. Cal. Dec. 6 18, 2014); see also Coleman, 2013 WL 2896884, at *4 (citing Mantolete v. Bolger, 767 F.2d 7 1416, 1424 (9th Cir.1985) (“Although in some cases a district court should allow discovery to 8 aid the determination of whether a class action is maintainable, the plaintiff bears the burden of 9 advancing a prima facie showing that the class action requirements of Fed. R. Civ. P. 23 are 10 satisfied or that discovery is likely to produce substantiation of the class allegations. Absent 11 such a showing, a trial court's refusal to allow class discovery is not an abuse of discretion.”)). 12 13 14 15 16 17 Federal Rule of Civil Procedure 23(a) permits a class action to proceed where (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. Additionally, a class action will only be certified if 21 (1) there is a risk of substantial prejudice from separate actions; or (2) declaratory or injunctive relief benefitting the class as a whole would be appropriate; or (3) “the questions of law and fact common to class members predominate over any questions affecting only individual members and ... a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. 22 Coleman, 2013 WL 2896884, at *4. “In determining whether to grant discovery the court must 23 consider its need, the time required, and the probability of discovery resolving any factual issue 24 necessary for the determination” of whether a class action is maintainable. Id. (citing Kamm, 25 509 F.2d at 210) (stating that “[t]he propriety of a class action cannot be determined in some 26 cases without discovery, as, for example, where discovery is necessary to determine the 27 existence of a class or set of subclasses. To deny discovery in a case of that nature would be an 28 abuse of discretion. Where the necessary factual issues may be resolved without discovery, it 18 19 20 5 16cv2749-WQH (BLM) 1 is not required.”). 2 Here, Plaintiffs have not made a prima facie showing that the Rule 23 class requirements 3 are satisfied for employees outside of the San Diego or Fullerton locations or that the requested 4 discovery—a sampling of putative class member contact information for Defendant’s eight 5 California locations and/or the timekeeping and payroll records from those locations—is relevant, 6 proportional, and likely to establish the class allegations. While Plaintiffs contend that their 7 claims are typical and common of all non-exempt employees of defendant who worked in 8 California, they provide very little evidence to support their claims. 9 Plaintiffs’ primary argument is that the alleged violations relate to improper wage 10 calculations and because Defendant utilized a centralized payroll for all of its locations, Plaintiffs 11 assert that the payroll errors impacted all locations and therefore they are entitled to statewide 12 discovery. MTC, at 8. To support their claim that Defendant used a centralized payroll, Plaintiffs 13 cite largely to the Complaint, which is not evidence. See, e.g., MTC, at 8-9; see, e.g., U.S. v. 14 Bailey, 696 F.3d 794, 801 (9th Cir. Aug. 27, 2012) (“All a complaint establishes is knowledge of 15 what a plaintiff claims.”). The only evidence Plaintiffs cite in support of their argument is a 16 January 2017 PowerPoint presentation about a new online portal for employees to view their 17 paychecks. Haines Decl., ¶ 3; see also ECF No. 42-1, Exhibit B (PowerPoint presentation), 13- 18 27. Defendant opposes Plaintiffs’ argument noting that “[t]he new payroll system—implemented 19 in January 2017, months after the class action was even filed—enables employees to access an 20 online portal in order to view information and make changes regarding paychecks and benefits.” 21 Oppo., at 6 (emphasis in original) (citing Bogan Decl., ¶ 5). In the Declaration of Dave Bogan 22 in Support of Defendants’ Opposition to Plaintiffs’ Motion to Compel Further Discovery, Mr. 23 Bogan, the Director of Human Resources, U.S. Manufacturing and Labor Relations, for Kraft 24 Heinz Foods Company (“KHFC”) explains: 25 26 27 28 In January 2015, KHC implemented a new payroll system with Global Business Solutions (‘GBS’), which enables employees to access an online portal in order to view information and make changes regarding paychecks and benefits. Each KHFC location handles payroll in its own way, with its own practices, and then transfers that data to GBS. Decisions on what is compensable are made at each location 6 16cv2749-WQH (BLM) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and not centralized. With respect to timekeeping practices, the Fullerton facility has not and does not round employees’ time punches, and pays employees based on actual minutes worked, during the time period beginning September 8, 2012 through the present. Bogan Decl., ¶¶ 5, 6. Plaintiffs do not dispute or otherwise respond to Defendant’s arguments in their briefing. Accordingly, the Court agrees with Defendant that the new payroll system and related January 2017 PowerPoint do not support Plaintiffs’ argument that Kraft Heinz has centralized payroll for all of its California locations. Plaintiffs do provide evidence that three of defendant’s locations (San Diego, Chatsworth, and Irvine) have uniform payroll policies and practices. Haines Decl., at ¶¶ 4-5 (citing Exhibits C and D). Mr. Haines explains that attached to his declaration, as Exhibit C, “are payroll configuration rules for Defendant’s Chatsworth, Irvine and San Diego locations, pertaining to the automatic deduction of 30 minutes for a purported meal period in the event that a putative class member doesn’t punch out for a meal period.” Haines Decl., at ¶ 4; see also ECF No. 421, Exhibit C, 28-31 (excerpt from Defendant’s “Workforce Timekeeper Pay Policy and Configuration Rules”). Mr. Haines also explains that attached to his declaration, as Exhibit D, “are payroll configuration rules for Defendant’s Chatsworth, Irvine and San Diego locations, pertaining to Kraft Heinz’s timekeeping rounding rules.” Haines Decl., at ¶ 5; see also ECF No. 42-1, Exhibit D, 32-36 (excerpt from Defendant’s “Workforce Timekeeper Pay Policy and Configuration Rules”). Plaintiffs acknowledge that they do not know whether the same policies and procedures apply to other locations, but they theorize that it is likely. Reply, at 4-5. This evidence still is insufficient to demonstrate company-wide violations because “for most of the class period (before July 2015), these 11 locations were not under common ownership, with five (5) of the locations wholly owned by H.J. Heinz Company, LP (‘Legacy Heinz’) and other six (6) owned by Kraft Foods Group, Inc. (‘Legacy Kraft’).” Oppo., at 8 (citing Bogan Decl., at ¶ 4). In Mr. Bogan’s Declaration, he explains that “[b]efore July 2015, six (6) of the 11 facilities were owned by Legacy Kraft and five (5) of them were owned by Legacy Heinz.” Bogan Decl., at ¶ 4. Notably, Plaintiffs fail to address whether the three locations that Plaintiffs claim have uniform payroll policies and practices were under common ownership prior to July 2015. MTC; Reply. 7 16cv2749-WQH (BLM) 1 Plaintiffs’ evidence also is insufficient to demonstrate company-wide violations because 2 class members at five of the nine locations in question are members of different unions and are 3 subject to different collective bargaining agreements. Oppo., at 8 (citing Bogan Decl., at ¶ 7). 4 In Mr. Bogan’s declaration, he explains: 5 8 Some of KHFC’s California locations were and/or are unionized during the time period beginning September 8, 2012 to the present. The Fullerton, San Leandro, Escalon, Chatsworth, Stockton, and one of the Fresno locations are all unionized and each facility is governed by a different collective bargaining agreement that imposed different workplace rules that are relevant to this case. 9 Bogan Decl., at ¶ 7. Defendant argues that “[m]eal breaks, rest periods, donning and doffing, 10 bonuses, and rounding are all topics that affect wages and working conditions and are required 11 subjects of collective bargaining.” Oppo., at 8. Plaintiffs fail to address in their briefing how 12 these different unions and collective bargaining agreements impact their argument for statewide 13 discovery. MTC; Reply. 6 7 14 In sum, the Court finds that Plaintiffs have not provided evidence making a prima facie 15 showing that the Rule 23 class requirements are satisfied for California employees working 16 outside of the San Diego or Fullerton locations. Plaintiffs provide no testimony, declarations, or 17 discovery responses that indicate company-wide violations or support their contention that the 18 provided policies are in conflict with the law. See Silva v. Avalonbay Communities, Inc., 2015 19 WL 11438549, at *2 (C.D. Cal. Sept. 2, 2015) (limiting discovery to the facility where plaintiff 20 worked and noting that plaintiff “presented no evidence, through declaration, interrogatory 21 response or otherwise, that any other employee experienced the same treatment as he alleges 22 he suffered, or that others were subjected to the same unlawful practices of which he complains, 23 or that defendant maintained an unlawful policy or practice at any or all of its facilities”); see 24 also Dittmar v. Costco Wholesale Corp., 2016 WL 7188231, at *4 (S.D. Cal. Dec. 12, 2016) 25 (permitting some discovery beyond Plaintiff’s work location where there were statements made 26 about employees in other regions, declarations, and deposition testimony concerning violations 27 in multiple regions). 28 involved a nationwide class, and the instant action is a statewide class is unconvincing. MTC, Plaintiffs’ attempt to distinguish Mantolete by arguing that Mantolete 8 16cv2749-WQH (BLM) 1 at 14. Courts, including this court, have found statewide discovery inappropriate when a prima 2 facie case was not made for class violations outside of named plaintiffs’ work locations. See, 3 e.g., Calleros v. Rural Metro of San Diego, Inc., No. 17cv686-CAB (BLM), 2017 WL 4391708, at 4 *3 (S.D. Cal. Oct. 3, 2017) (“While Plaintiffs establish numerosity by alleging that the statewide 5 class has more than 1,993 putative class members, Plaintiffs provide very little evidence to 6 establish commonality for those working outside of the San Diego region.”) 7 Plaintiffs’ motion to compel deposition testimony from Defendant’s Rule 30(b)(6) witness 8 as to the relevant policies and practices at all eight California locations is DENIED. In light of 9 the evidence set forth by Plaintiffs that three of Defendant’s locations (San Diego, Chatsworth, 10 and Irvine) may have uniform payroll policies and practices,2 the Court GRANTS Plaintiffs’ 11 motion to compel deposition testimony from Defendant’s Rule 30(b)(6) witness on the issue of 12 whether Defendant Kraft Heinz has centralized payroll for its California locations. Plaintiffs’ 13 motion to compel a sampling of putative class member contact information for Defendant’s eight 14 California locations that employed putative class members is DENIED. Plaintiffs’ motion to 15 compel a sampling of putative class member timekeeping and payroll records for Defendant’s 16 eight California locations that employed putative class members is also DENIED. 17 IV. 18 For the reasons set forth above, Plaintiffs’ motion is GRANTED IN PART AND DENIED 19 CONCLUSION IN PART as follows: 20 a. Plaintiffs’ motion to compel deposition testimony from Defendant’s Rule 30(b)(6) 21 witness as to the relevant policies and practices at all eight California locations is 22 DENIED. To the extent Plaintiffs seek Rule 30(b)(6) deposition testimony from 23 Defendant Kraft Heinz on the issue of whether Defendant Kraft Heinz has 24 centralized payroll for its California locations, Plaintiffs’ Motion to Compel is 25 GRANTED. On or before January 5, 2018, Plaintiffs may serve a Rule 30(b)(6) 26 deposition notice on Defendant on the issue of whether Defendant Kraft Heinz 27 28 2 Haines Decl., at ¶¶ 4-5 (citing Exhibits C and D). 9 16cv2749-WQH (BLM) 1 2 has centralized payroll for its California locations. b. Plaintiffs’ motion to compel a sampling of putative class member contact 3 information for Defendant’s eight California locations that employed putative 4 class members is DENIED. 5 c. Plaintiffs’ motion to compel a sampling of putative class member timekeeping 6 and payroll records for Defendant’s eight California locations that employed 7 putative class members also is DENIED. 8 IT IS SO ORDERED. 9 10 Dated: 12/13/2017 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 16cv2749-WQH (BLM)
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