Case Name: Jennifer Richert v. Samaritan, LLC, et al.
Case No.: 17-CV-314186

This is a putative employment class action alleging wage statement violations by defendant Samaritan, LLC. Before the Court is plaintiff’s motion for class certification, which defendant opposes.

I. Allegations of the Operative Complaint

Plaintiff has been employed by Samaritan since at least June of 2014. (First Amended Class Action Complaint (“FAC”), ¶ 7.) She alleges that, during pay periods when she received overtime wages, her wage statements failed to identify the accurate rates of overtime pay and the accurate total hours worked as required by the Labor Code. (Ibid.) Based on these allegations, plaintiff brings a putative class claim under Labor Code section 226 and a representative claim under the Private Attorneys General Act (“PAGA”).

Plaintiff now moves to certify the alleged class of “all current and former California non-exempt employees, who were paid overtime wages by Defendant, at any time between August 8, 2016 to the present.” (See FAC, ¶ 14.)

II. Legal Standard

As explained by the California Supreme Court,

The certification question is essentially a procedural one that does not ask whether an action is legally or factually meritorious. A trial court ruling on a certification motion determines whether the issues which may be jointly tried, when compared with those requiring separate adjudication, are so numerous or substantial that the maintenance of a class action would be advantageous to the judicial process and to the litigants.

(Sav-On Drug Stores, Inc. v. Superior Court (Rocher) (2004) 34 Cal.4th 319, 326, internal quotation marks, ellipses, and citations omitted.)

California Code of Civil Procedure section 382 authorizes certification of a class “when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court ….” As interpreted by the California Supreme Court, section 382 requires: (1) an ascertainable class and (2) a well-defined community of interest among the class members. (Sav-On Drug Stores, Inc. v. Superior Court, supra, 34 Cal.4th at p. 326.)

The “community-of-interest” requirement encompasses three factors: (1) predominant questions of law or fact; (2) class representatives with claims or defenses typical of the class; and (3) class representatives who can adequately represent the class. (Sav-On Drug Stores, Inc. v. Superior Court, supra, 34 Cal.4th at p. 326.) “Other relevant considerations include the probability that each class member will come forward ultimately to prove his or her separate claim to a portion of the total recovery and whether the class approach would actually serve to deter and redress alleged wrongdoing.” (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435.)

The plaintiff has the burden of establishing that class treatment will yield “substantial benefits” to both “the litigants and to the court.” (Blue Chip Stamps v. Superior Court (Botney) (1976) 18 Cal.3d 381, 385.) The court must examine all the evidence submitted in support of and in opposition to the motion “in light of the plaintiffs’ theory of recovery.” (Department of Fish and Game v. Superior Court (Adams) (2011) 197 Cal.App.4th 1323, 1349.) The evidence is considered “together”: there is no burden-shifting as in other contexts. (Ibid.)

III. Evidentiary Issues

Defendant objects to statements in plaintiff’s declaration that characterize the manner in which her overtime rates and hours were presented on her wage statements and explain why she found the wage statements confusing. Defendant argues that these statements constitute improper argument, legal conclusions, and opinion and violate the secondary evidence rule. These objections are OVERRULED, as plaintiff’s testimony addresses her own experience in interpreting her wage statements, a subject on which she clearly has personal knowledge and which does not constitute argument or opinion.

IV. Merits Argument

As indicated above, a court generally will not consider the merits of a claim on a motion for class certification because the certification question is essentially a procedural one. (Brinker Restaurant Corp. v. Superior Court (Hohnbaum) (2012) 53 Cal.4th 1004, 1023.) In some circumstances, however, the merits of a case may become “enmeshed” with class action requirements. (Ibid.) “When evidence or legal issues germane to the certification question bear as well on aspects of the merits, a court may properly evaluate them.” (Id. at pp. 1023-1024.) “In particular, whether common or individual questions predominate will often depend upon resolution of issues closely tied to the merits,” as the court “must determine whether the elements necessary to establish liability are susceptible of common proof,” which “can turn on the precise nature of the element and require resolution of disputed legal or factual issues affecting the merits.” (Id. at p. 1024.) “For example, whether reliance or a breach of duty can be demonstrated collectively or poses insuperable problems of individualized proof may be determinable only after closer inspection of the nature of the reliance required or duty owed and, in some instances, resolution of legal or factual disputes going directly to the merits.” (Ibid.) “Such inquiries are closely circumscribed. … [A]ny ‘peek’ a court takes into the merits at the certification stage must be limited to those aspects of the merits that affect the decisions essential to class certification.” (Id. at p. 1024, internal citations and quotations omitted.)

Here, both parties present extensive merits argument in their briefing. However, with one exception addressed below (the issue of the legal standard governing section 226’s injury requirement), this is not a case where the merits are “enmeshed” with the class certification requirements under Brinker. The Court accordingly will not address the parties’ merits arguments at this time.

V. Numerous and Ascertainable Class

“The trial court must determine whether the class is ascertainable by examining (1) the class definition, (2) the size of the class and (3) the means of identifying class members.” (Miller v. Woods (1983) 148 Cal.App.3d 862, 873.) Generally, “[c]lass members are ‘ascertainable’ where they may be readily identified without unreasonable expense or time by reference to official records.” (Rose v. City of Hayward (1981) 126 Cal. App. 3d 926, 932.) Ascertainability is required in order to give notice to putative class members as to whom the judgment in the action will be res judicata; merits-related issues like whether class members will be able to prove their damages are not to be considered in relation to this factor. (See Cohen v. DIRECTV, Inc. (2009) 178 Cal.App.4th 966, 975-976 [“The defined class of all HD Package subscribers is precise, with objective characteristics and transactional parameters, and can be determined by DIRECTV’s own account records. No more is needed.”].)

Here, defendant has already identified the 2,453 current and former employees who received overtime wages during the class period based on its records. The class definition is clear, objective, and appropriate. Defendant does not contest that the proposed class is numerous and ascertainable, and the Court finds that these requirements are satisfied.

VI. Predominant Questions of Law and Fact

Regarding predominance,

[t]he ultimate question in every case of this type is whether . . . the issues which may be jointly tried, when compared with those requiring separate adjudication, are so numerous or substantial that the maintenance of a class action would be advantageous to the judicial process and to the litigants.

(Lockheed Martin Corp. v. Superior Court (Carrillo) (2003) 29 Cal.4th 1096, 1104-1105, quoting Collins v. Rocha (1972) 7 Cal.3d 232, 238.) For example, “if the community of interest is mainly one of law, and if the factual issues requiring separate adjudication are numerous and substantial, a class action does not subserve the judicial process or the litigants.” (Bozaich v. State of California (1973) 32 Cal.App.3d 688, 694-695.) Nevertheless, “[a] class action can be maintained even if each class member must at some point individually show his or her eligibility for recovery or the amount of his or her damages, so long as each class member would not be required to litigate substantial and numerous factually unique questions to determine his or her individual right to recover.” (Acree v. General Motors Acceptance Corp. (2001) 92 Cal.App.4th 385, 397.) Predominance ultimately “hinges on whether the theory of recovery advanced by the proponents of certification is, as an analytical matter, likely to prove amenable to class treatment.” (Duran v. U.S. Bank Nat. Assn. (2014) 59 Cal.4th 1, 28, internal citation and quotations omitted.)

Here, there is no dispute that class members received wage statements that presented their overtime rates of pay and total hours worked in the same manner. In this regard, plaintiff’s claim is clearly amenable to class treatment “as an analytical matter.” (Brinker Restaurant Corp. v. Superior Court, supra, 53 Cal.4th at p. 1021.)

Nevertheless, defendant contends that plaintiff has failed to submit evidence that class members suffered injury from its practice, and this issue will raise individual inquiries fatal to commonality. Plaintiff correctly responds that section 226’s injury requirement is minimal and is analyzed under an objective, reasonable person standard, which does not require an individualized showing of harm. (See Lab. Code, § 226, subd. (e) [an employee suffers injury if he or she cannot “promptly and easily determine” the total hours worked during a pay period, meaning “a reasonable person would [not] be able to readily ascertain the information without reference to other documents or information”]; Lubin v. Wackenhut Corporation (2016) 5 Cal.App.5th 926, 959-960 [trial court erred in declining to certify a wage statement class due to the injury requirement].) Defendant’s argument accordingly lacks merit.

In addition, defendant contends that the issue of whether any wage statement violations were “knowing and intentional” on its part raises individual issues. It does not even attempt to explain this argument, which does not persuade the Court. All indications are that defendant’s wage statements were issued pursuant to general policies or decisions that impacted the class members in the same manner, and defendant’s intent in adopting those policies or decisions can be determined on a classwide basis.

Finally, defendant argues that the Court should not certify a class because plaintiff has not presented a specific trial plan. However, there is no indication that statistical evidence will be utilized in this case, or that individual issues otherwise threaten to interfere with defendant’s due process rights as the case is litigated. Under these circumstances, there is no requirement that plaintiff present a trial plan at this juncture. (See Duran v. U.S. Bank National Assn., supra, 59 Cal.4th at p. 31 [court should consider trial plan at the certification stage where statistical evidence will comprise part of plaintiff’s proof].)

Plaintiff’s wage statement theory is straightforward and does not implicate individualized issues. Common issues predominate as to this claim.

VII. Adequacy and Typicality

“Adequacy of representation depends on whether the plaintiff’s attorney is qualified to conduct the proposed litigation and the plaintiff’s interests are not antagonistic to the interests of the class.” (McGhee v. Bank of America (1976) 60 Cal.App.3d 442, 450.) The fact that a class representative does not personally incur all of the damages suffered by each different class member does not necessarily preclude the representative from providing adequate representation to the class. (Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 238.) Only a conflict that goes to the very subject matter of the litigation will defeat a party’s claim of representative status. (Ibid.)
“Although the questions whether a plaintiff has claims typical of the class and will be able to adequately represent the class members are related, they are not synonymous.” (Martinez v. Joe’s Crab Shack Holdings (2014) 231 Cal.App.4th 362, 375.) “The test of typicality is whether other members have the same or similar injury, whether the action is based on conduct which is not unique to the named plaintiffs, and whether other class members have been injured by the same course of conduct.” (Ibid., quoting Seastrom v. Neways, Inc. (2007) 149 Cal.App.4th 1496, 1502.)

Defendant contends that plaintiff is not an adequate or typical class representative because she suffered no injury from the alleged wage statement violations and consequently lacks standing to bring any claim under section 226. It cites her deposition testimony that, while she was confused by her wage statements, this never caused her to miss bill payments, experience stress or anxiety requiring medical treatment, or suffer other physical or economic injuries. However, these are not the type of injuries required by the statute. As discussed above, the statute specifically defines the required injury as an inability to “promptly and easily determine” the total hours worked during a pay period, meaning “a reasonable person would [not] be able to readily ascertain the information without reference to other documents or information.” (See Lab. Code, § 226, subd. (e).) Having reviewed the deposition transcript submitted by defendant, the Court finds no reason to conclude that plaintiff’s testimony on this issue would be atypical of other class members or uniquely inconsistent with standing under section 226. Whether plaintiff can ultimately establish injury under section 226 is a merits issue, which the Court will not decide on class certification.

Having reviewed the declarations submitted by plaintiff, the Court finds that her claims are otherwise typical of the class. She and her counsel are qualified to represent the class and their interests are aligned with this role. Adequacy and typicality are satisfied under these circumstances.
VIII. Superiority

Finally, a class action should not be certified unless substantial benefits accrue both to litigants and the courts. (Basurco v. 21st Century Ins. Co. (2003) 108 Cal.App.4th 110, 120.) The question is whether a class action would be superior to individual lawsuits. (Ibid.) “Thus, even if questions of law or fact predominate, the lack of superiority provides an alternative ground to deny class certification.” (Ibid.) Generally, “a class action is proper where it provides small claimants with a method of obtaining redress and when numerous parties suffer injury of insufficient size to warrant individual action.” (Id. at pp. 120-121, internal quotation marks omitted.)

Here, each class member will have a small claim. Without a class action, it is highly unlikely that any class member would have the incentive to bring a lawsuit. In addition, there are thousands of members of the proposed classes. It would be inefficient for the Court to hear and decide the same issues separately and repeatedly for each class member. A class action is superior to individual lawsuits under the circumstances.

IX. Conclusion and Order

Plaintiff’s motion is GRANTED. The following class is certified:

All current and former California non-exempt employees, who were paid overtime wages by Defendant, at any time between August 8, 2016 to the present.

The parties shall meet and confer regarding a procedure for providing notice to the class and a form of notice. If they come to agreement, plaintiff shall file a stipulation along with a statement and proposed order pursuant to California Rules of Court, rule 3.766. If there is any dispute regarding these issues, the parties shall advance their next case management conference to a mutually agreeable date so that the issues may be promptly addressed.

The Court will prepare the order.