Case Name:   Maria Ortiz, et al. vs. Headstart Nursery, Inc.

Case No.:       1-11-CV-211336

 

In this putative class action, plaintiffs Maria Ortiz (“Ortiz”), Rosalia Garcia Arriaga (“Arriaga”), and Mariana Rojas (“Rojas”) (collectively “Plaintiffs”) sue defendant Headstart Nursery, Inc. (“Defendant”) for not providing full 30-minute meal breaks as required by law.  In the operative Second Amended Complaint (“SAC”), filed July 31, 2013, Plaintiffs allege that Defendants owns and operates a business that produces, grows, ships and sells vegetable transplants and ornamental plugs and liners,[1] and Plaintiffs and the putative class are non-exempt employees who were paid on an hourly, piece rate, or incentive plan basis.[2]  The SAC asserts four causes of action for: (1) unfair business practices, violation of Business & Professions Code section 17200; (2) violation of Labor Code section 200 et seq.; (3) violation of Labor Code sections 226.7 and 512, failure to provide required meal periods; and (4) violation of Labor Code section 226, failure to provide accurate statements.

 

Plaintiffs allege they were required to work through their meal periods and/or to take their lunch breaks late due to the necessity of completing their assigned tasks and the time spent to commute between their assigned work stations in the field and the designated lunch area.  Plaintiffs allege that Defendant has an explicit policy requiring employees, including named Plaintiffs and other class members to eat in a designated “lunch area” on the business premises, which was at a great distance from where employees worked on the field.[3]  Plaintiffs and the putative class were also required “to spend a material amount of time thoroughly cleaning themselves before they could safely consume a meal” and were not compensated for this time.[4]  Plaintiffs further allege that Defendant failed to provide them with proper field sanitation facilities as required by law.[5]

 

The SAC defines four classes:

 

(1)  Class I (Meal Period Class):  All California based non-exempt employees who were paid hourly based and/or piece rate based and/or incentive plan based who were or are employed by Defendant within the last four years who were subject to Defendant’s uniform meal period policy to work through their meal periods and/or to take their lunch breaks late, through necessity of completing their assigned tasks; to spend time to commute by walking/running between their assigned work stations in the field and a suitable lunch area and were not paid an hour of pay for meal period violations.

(2)  Class II (Waiting Time Penalty Class):  All California based employees employed by Defendant in California any time within the last four years who left employment with Defendant and did not receive all wages due as a result of Defendant’s failure to pay meal period violations on termination.

(3)  Class III (Pay Stub Class – Injunctive Relief):  All California based employees employed by Defendant in California any time within the last four years who received a non-compliant pay stub that failed to comply with Labor Code section 226, i.e., failed to properly report the pay rate, failed to properly report total hours worked, and failed to provide an accurate explanation of the incentive plan formula and/or piece rate among other deficiencies.

(4)  Class IV (Field Sanitation Class – Injunctive Relief):  All California based employees employed by Defendant in California any time within the last four years who were not provided with proper field sanitation facilities as required by California Code of Regulations Title 8, Section 3457, Health & Safety Code sections 113310-113360, and Labor Code section 6712.

 

On September 18, 2013, the Court denied Defendant’s motion to strike class allegations in the SAC.

Plaintiffs now move for certification of three classes: (1) Meal Period Class; (2) Waiting Time Penalty Class; and (3) Pay Stub Class, Injunctive Relief Only.[6]

 

Judicial Notice

 

In support of the motion, Plaintiffs seek judicial notice of: (1) statement regarding compensable time for washing by the Division of Labor Standards and Enforcement (“DLSE”) in DLSE Enforcement Policies & Interpretations Manual § 46.6.4 (June 2002) (RJN Exh. 1); (2) DLSE Opinion Letter 1988.05.16 (RJN Exh. 2); (3) DLSE Opinion Letter 1994.02.03-3 (RJN Exh. 3); (4) DLSE Opinion Letter 1994.02.16 (RJN Exh. 4); and (5) DLSE Opinion Letter 1998.12.23 (RJN Exh. 5).

 

The unopposed request is GRANTED.  The Court may take judicial notice of the existence of the DLSE Enforcement Policies and Interpretations Manual and the DLSE Opinion Letters as “official acts” of the state executive branch.  (See Evid. Code, § 452, subd. (c).)  The DLSE “is the state agency empowered to enforce California’s labor laws.”  (Tidewater Marine Western, Inc. v. Bradshaw (1996) 14 Cal.4th 557, 561-562.)

 

Parties’ Arguments/Supporting Evidence; Evidentiary Objections

 

Plaintiffs submit that they and the putative class members worked at Defendant’s facilities in Gilroy, Mecca, San Martin, San Juan Bautista, Castroville, and Salinas, and helped maintain, process, and package agricultural products.  According to Plaintiffs, Defendant provided a 30-minute lunch period, usually from 12:00 p.m. until 12:30 p.m., with a tone (e.g., bell, whistle) signifying the beginning and end of the period.  However, Plaintiffs contend that they and the putative class did not receive an uninterrupted, duty-free meal period as required by law because during the lunch period, they were expected to wash their hands, walk to a designated lunch area, eat lunch, walk back from the designated lunch area and wash their hands a second time to avoid contaminating the plants.  Plaintiffs submit that they were not allowed to start walking to the designated lunch area or wash their hands until after the start of the 30-minute period, and they were required to be washed, back at their workstations, and ready to work by the conclusion of the 30-minute period.  Plaintiffs contend that hand washing was necessary given the nature of industrial agricultural labor and the potential for harmful exposure, and they typically spent one minute or more lathering, washing and drying their hands, which did not include time spent waiting in line.  Plaintiffs further contend that those who failed to be back at their work stations by the conclusion of the 30-minute lunch period were subject to verbal discipline and possibly a written ticket, and that Defendant had supervisors drive around on golf carts to tell employees to hurry back to their workstations by 12:30 p.m.

 

Regarding the designated lunch areas, Plaintiffs submit that the main lunch area in Gilroy is “Greenhouse 312”, which is one minute away from closest workstation, and more than eight minutes from the farthest workstation.  Plaintiffs contend that Greenhouse 312 doubles as a production area with only a plastic curtain dividing the eating area from plants and pesticides, and there is no refrigerator or microwave and not enough chairs.  Plaintiffs submit that until 2013, Defendant’s Mecca facility had only a single designated lunch area with no refrigerator, and it took no less than a couple of minutes each way for putative class members to commute to lunch.  Plaintiffs submit that Defendant’s San Martin and San Juan Bautista facilities each have only a single lunch area, approximately one to two minutes from the nearest workstation.  Plaintiffs submit that discovery is continuing on Defendant’s Castroville and Salinas locations.

 

Regarding wage statements, Plaintiffs argue that for meal periods, Defendant improperly deducted pay for a full 30-minute meal break, despite the fact that Plaintiffs and the putative class members did not receive a full, uninterrupted meal period.  Plaintiffs further submit that for pay on a piece-rate basis (e.g., $0.04 for every unit processed over 200 units), Defendant failed to issue wage statements which detailed the base rate of pay or the number of units subject to said pay, even though this information was readily available and could have easily been included in the wage statements.

 

Plaintiffs argue the putative class is ascertainable from company records.  Plaintiffs argue common questions of law and fact will predominate because all Headstart facilities followed a single policy with respect to commuting and washing around lunchtime.  Plaintiffs contend the primary questions of law common to all putative class members are whether commuting and washing are essential functions of the job, whether the daily nature of the alleged meal period violations and the aggregate minimum reasonable amount of time spent washing and commuting satisfy the de minimis test discussed in DLSE Opinion Letters, and whether the failure to provide full meal periods and piece rate information violate the Labor Code requirements for wage statements.  Plaintiffs argue they share the same interests and suffered the same harm as the putative class to satisfy the typicality and adequacy of representation requirements, and their counsel is experienced wage and hour litigation.  Plaintiffs argue a class action is a superior means for adjudicating controversies like this involving unsophisticated victims that lack the financial motivation or resources to sue on their own.

 

The supporting evidence includes portions of the deposition transcripts of Defendant’s person most qualified (PMQ) Grant Cornia,[7] plaintiffs Ortiz[8] and Rojas,[9] and putative class members Maria Cecilia Cedeno (“Cedeno”),[10] Angel M. Leon (“Leon”),[11]Olga Gonzalez,[12] Zacarias Vasquez,[13] Margarita Flores Gutierrez (“Gutierrez”),[14] Maria Teresa Alvarado,[15] Maria del Carmen de la Riva (“Riva”),[16] Lourdes Flora (“Flora”),[17] Delia Nino Cruz (“Cruz”),[18] Maria Olivia Marin de Bucio (“Bucio”),[19] Angela Crispin (“Crispin”),[20] Amelia Delgado Martinez (“Martinez”),[21] Alta Gracia Santos,[22] Eduardo Gonzalez,[23] and Elia Gonzalez.[24]  The evidence also includes a copy of a written “Employee Warning” concerning Ortiz,[25] portions of Defendant’s Employee Handbook regarding company policy on “Rest and Meal Breaks,” “Work Rules and Regulations,” and “Attendance and Punctuality”,[26] Defendant’s business records regarding piece rate bonuses and payroll,[27] Defendant’s responses to Special Interrogatories Set 3,[28] and this Court’s September 18, 2013 Order Re: Motion to Strike Class Allegations.[29]

 

Plaintiffs also submit their declarations, as well as the declarations of their counsel (Andrew G. Watters, Daniel B. Swerdlin, Parviz Darabi) in support of the adequacy of counsel, and the declaration of physicist Paul Herman, Ph.D.  Dr. Herman states that he analyzed all of Defendant’s facilities to see how far employees had to walk to lunch areas, and he personally inspected the Gilroy facility on October 11, 2012.[30]

 

Defendant has submitted written objections to the declarations of Plaintiffs and Dr. Herman.  Defendant objects to Plaintiffs’ declarations on the grounds of lack of personal knowledge, no foundation, speculation, hearsay, and contradicting their deposition testimony.  Defendant objects to Dr. Herman’s declaration on the grounds that the statements are conclusory, speculative, argumentative, vague, ambiguous, lacking in foundation, improper opinion testimony, and irrelevant.  The objections are OVERRULED.  Plaintiffs’ employment with Defendant gives them sufficient personal knowledge, foundation and competence to attest to Defendant’s lunch break practices in detail.  Plaintiffs’ declarations either do not clearly contradict their deposition testimony, or Defendant does not provide the necessary pages of their deposition testimony in Defendant’s own exhibits to identify the conflict.  The hearsay objections are without merit because Plaintiffs’ declarations do not include out-of-court statements submitted for their truth.  Dr. Herman’s declaration is based on his personal inspection of the lunch areas at the Gilroy facility and is therefore not speculative, lacking in foundation, or irrelevant.  Dr. Herman’s expertise in physics makes him qualified to estimate walk times based on his observation of the Gilroy facility.

 

In opposition, Defendant submits that it actually has nine different facilities in seven cities (Gilroy; “Desert Sea”/Mecca; “Desert Sun”/Mecca; “Desert Palms” in Thermal; San Martin; San Juan Bautista; Castroville; Salinas/Potter Rd.; and Salinas/Encinal Rd.) which vary in size and scope of operations, and only three of these facilities (Gilroy, Desert Sea/Mecca, and Castroville) used a horn to signal the start and end of the meal breaks.  Defendant argues it has a lawful written meal period policy that mandates a 30-minute meal break and auto-deducts 30 minutes from the employees’ time to account for the unpaid break.[31]

 

Defendant argues this case is not suitable for class treatment because common questions of law and fact will not predominate.  Specifically, Defendant contends there is no corporate policy requiring employees to be back at work when the second horn blew.  Instead, Defendant argues the policy was that the second horn signaled the end of the meal period and the time for employees to pack up and return to their work stations.  Defendant submits that numerous employees testified they were permitted to be away from their work stations for more than 30 minutes, and were never disciplined when they returned after 12:30 p.m.  Defendant argues that Plaintiffs’ two examples of discipline for returning late from lunch occurred prior to the class period.

 

Defendant further argues that employees were not uniformly required to take their meal breaks in a designated area, and in fact, they were permitted to eat anywhere other than inside a greenhouse, as confirmed by Plaintiffs’ testimony that they ate snacks outside the greenhouses they were working in.  Defendant argues Plaintiffs have not provided substantive information about the number or nature of the designated lunch areas at the Castroville, Encinal, Potter, Desert Palms, or Desert Sun facilities.

 

Defendant further argues there was no uniform policy requiring employees to wash their hands during their meal periods or in any particular way, nor were employees told that they were required to wait until the first horn sounded to wash their hands.  Defendant submits that many employees left prior to the first horn to wash their hands, and no one has ever been written up for not adequately washing their hands or for leaving too early for lunch.  Defendant submits that employees are allowed to use the bathroom at any time, and many employees go to the bathroom a few minutes prior to lunch to wash their hands.

 

Defendant argues that Plaintiffs’ claim is premised upon a legal fallacy that an employee’s 30-minute meal break cannot begin until they arrive at their desired lunch location.  Defendant argues that Wage Order 14 (Agricultural Occupations) requires 10 minutes of “net” rest time to ensure that employees’ rest period would not include any time to walk or travel to a place of rest, but the DLSE did not impose a similar requirement of 30 minutes of “net” meal time.

 

Defendant argues that the case will be fraught with individualized issues such as whether each putative class member worked at a facility that used horns, how far apart the horns blew, what the individual understood the second horn meant, and whether the individual was permitted to wash their hands prior to the start of the meal period.

 

Regarding Greenhouse 312 at Gilroy, Defendant argues that pesticides or toxic chemicals are not stored in Greenhouse 312 and are locked up in a container with limited access.

 

Regarding the Pay Stub Class, Defendant argues that Plaintiffs are inadequate class representatives because the Pay Stub Class claims seek only injunctive relief, but as former employees, Plaintiffs no longer have standing to seek injunctive relief.

 

Defendant argues Plaintiffs’ claims not typical of the putative class because they only worked at the Gilroy, San Martin and San Juan Bautista facilities, and each facility is different.

 

Defendant argues a class is not a superior method for resolving his matter due to the individualized issues on the impact of walking and/or hand washing on each individual’s meal break.

 

The supporting evidence includes portions of the deposition transcripts of plaintiffs Arriaga,[32] Ortiz[33] and Rojas,[34] Defendant’s PMQ Cornia,[35] and putative class members Maria Teresa Alvarado,[36] Cedeno,[37] Crispin,[38] Cruz,[39] Bucio,[40] Riva,[41] Flora,[42] Adriana Vargas Garcia,[43] Elia Gonzalez,[44] Eduardo Gonzalez,[45] Gutierrez,[46] Leon,[47] Martinez,[48] Ernesto Bautista Partida,[49] Azucena G. Rodriguez,[50] Maximina Rodriguez,[51] and Alta Gracia Santos.[52]  Defendant also submits the declarations of putative class members Maria Vargas Alvarado,[53] Maria Elva Alvarado,[54] Abraham V. Barajas,[55] Marcela Ulloa Escareno,[56] Marcelo Flores,[57] Olga Gonzalez,[58] Jorge Gonzalez,[59] Luis Angel Arreola Gonzalez,[60] Lazaro Flores Gonzalez,[61] Pilar Gutierrez Medina,[62] Eduardo Gonzalez Morales,[63] Humberto Pina,[64] Victorina Retiz,[65] Maria Elena Santos,[66] Rafael Valdez,[67] and Albino Gonzalez Zuniga.[68]  Defendant also submits the declaration of Cornia attaching Defendant’s written meal period policy.[69]

 

Plaintiffs have submitted written evidentiary objections to the putative class member declarations attached as Exhibits 2, 3, 5, 7, 8, 9, 12, 14, and 15 to the Muraco declaration.  Plaintiffs attack the boilerplate nature of the declarations, the lack of personal knowledge, lack of foundation, the fact that the declarations only provide options for the declarants to circle, and the lack of authentication.  Plaintiffs also argue that the declarations contain no language which shows the declarants understood that these declarations could be used against their own interests.

 

Notably, all of Defendant’s declarations (Muraco Exhs. 1-16) are similarly-worded, but exhibits 2, 3, 5, 7-9, 12, 14-15 are even more boilerplate in that they simply provide blanks for the declarant to fill in with personal information (e.g., names, position, work hours).  However, because there is a paragraph in each declaration attesting to the declarant’s personal knowledge, as well as a statement that the declarations are signed under penalty of perjury under the laws of the State of California, the declarations are not blatantly inadmissible.  The putative class members are competent to attest to Defendant’s meal period practices.  Although Plaintiffs suggest that the declarants did not fully understand the nature of the declarations they were providing to Defendant, Plaintiffs provide no evidence to suggest the declarations were obtained under circumstances of coercion or deception in order to justify striking them in their entirety.  (See Quezada v. Schneider Logistics Transloading & Distribution (C.D. Cal. 2013) 2013 U.S. Dist. LEXIS 47639, *11-14 [factors for whether pre-certification communications between employers and employees are sufficiently deceptive or coercive to warrant relief].)  Thus, the objections are OVERRULED.  However, due to the pure boilerplate nature of these declarations, they are entitled to very little weight on any contested issues raised in the motion.

 

Legal Standards

 

California Code of Civil Procedure section 382 authorizes class actions “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, one or more may sue or defend for the benefit of all.”

 

“The party seeking certification has the burden to establish the existence of both an ascertainable class and a well-defined community of interest among class members.  [Citations.]  The ‘community of interest’ requirement embodies three factors: (1) predominant common 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.  [Citation.]  [¶]  The certification question is ‘essentially a procedural one that does not ask whether an action is legally or factually meritorious.’  [Citation.]  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.’  [Citations.]”  (Sav-On, Inc. v. Superior Court (2004) 34 Cal.4th 319, 326.)

 

“The ‘ultimate question’ the element of predominance presents 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.’  [Citations.]  The answer 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.’  [Citation.]  A court must examine the allegations of the complaint and supporting declarations [citation] and consider whether the legal and factual issues they present are such that their resolution in a single class proceeding would be both desirable and feasible.  ‘As a general rule if the defendant’s liability can be determined by facts common to all members of the class, a class will be certified even if the members must individually prove their damages.’  [Citations.]”  (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1021-1022.)

 

Numerosity, Ascertainability, Typicality, and Adequacy of Representation

 

Although the total number of putative class members is unclear from the papers, there appears to be no dispute that the putative class is sufficiently numerous to make joinder impracticeable.  (See Miller v. Woods (1983) 148 Cal.App.3d 862, 873.)  Nor is there any dispute that the putative class definitions are sufficiently precise and objective for purposes of ascertainability (see Global Minerals & Metal Corp. v. Superior Court (2003) 113 Cal.App.4th 836, 858) or that the putative class members’ identities are ascertainable from Defendant’s records.  Finally, there is no dispute that Plaintiffs’ counsel is qualified to conduct the proposed litigation.  (See McGhee v. Bank of America (1976) 60 Cal.App.3d 442, 450-451 [adequacy of representation].)

 

Defendant’s challenges to the typicality of Plaintiffs’ claims and Plaintiffs’ adequacy as class representatives are not well-taken as to the Meal Period and Waiting Time Penalty Classes.  Any differences among Defendant’s facilities do not change the fact that Plaintiffs have “the same or similar injury” as the members of the putative class (see Seastrom v. Neways, Inc. (2007) 149 Cal.App.4th 1496, 1502) and have the motive to litigate on behalf of all putative class members (see Classen v. Weller (1983) 145 Cal.App.3d 27, 45).

 

However, Defendant’s point is well-taken that Plaintiffs are not adequate representatives of the putative Pay Stub Class.  For this class, Plaintiffs “seek injunctive relief only pursuant to Labor Code § 226 (h).”[70]  However, Plaintiffs state in their declarations that they are no longer employees of Defendant as of June 2010.[71]  Thus, Plaintiffs no longer stand to be harmed by Defendant’s pay stub practices for purposes of entitling them to any injunctive relief, and they cannot seek injunctive relief as a remedy for past wrongs. “Injunctive power is not used as punishment for past acts and is ordered against them only if there is evidence they will probably recur.”  (Mallon v. Long Beach (1958) 164 Cal.App.2d 178, 190.)

 

In reply, Plaintiffs argue that they are fully entitled to pursue their claims as “former employees” under Labor Code section 226 subdivisions (c), (f) and (h).  Labor Code section 226 subdivisions (c) and (f) pertain to the right of “current or former employees” to inspect records pertaining to their employment upon request to the employer.  Subdivision (f) allows current or former employees to recover a $750 penalty if their employer violates subdivision (c), and subdivision (h) provides that “[a]n employee may also bring an action for injunctive relief to ensure compliance with this section, and is entitled to an award of costs and reasonable attorney’s fees.”  As mentioned above, Plaintiffs’ Pay Stub claims seek only injunctive relief under subdivision (h).  They do not seek penalties under Labor Code section 226 subdivision (f) for violations of subdivision (c) or even allege that Defendant failed to allow them to inspect employment records.  The fact that Labor Code section 226 refers to “current or former employees” in subdivisions (b), (c), and (f) but not in subdivision (h) suggests that the remedy of injunctive relief in subdivision (h) is not available to former employees, which is consistent with the legal principle that an injunction is not meant to punish for past acts.

 

If Plaintiffs lack standing to enjoin Defendant’s pay stub practices regarding piece-rate pay, they are not members of the putative Pay Stub Class.  “[T]he named plaintiff in a class action must be a member of the class he purports to represent.”  (Trotsky v. Los Angeles Fed. Sav. & Loan Assn. (1975) 48 Cal.App.3d 134, 146.)  Thus, the Court finds that Plaintiffs are not adequate representatives of the Pay Stub Class, and the motion for certification of the Pay Stub Class is DENIED.

 

This leaves the Meal Period Class and the related Waiting Penalty Class.  Notably, Plaintiffs do not appear to be moving for certification of a Field Sanitation Class, even though this class is defined in the SAC, and Plaintiffs did submit evidence regarding the unsanitary conditions of Greenhouse 312 at the Gilroy facility.[72]

 

Predominant Questions of Law or Fact

 

A fair portion of Defendant’s opposition brief is devoted to arguing the merits of Plaintiffs’ meal period claims, which is not germane to the certification analysis.

Plaintiffs demonstrate the existence of a number of company policies that relate to meal periods.  First, there is a company-wide policy that meal periods begin at designated times.  The Employee Handbook states, “Meal breaks will be set by your supervisor.”[73]  In three of Defendant’s nine locations (Gilroy, Desert Sea/Mecca, and Castroville), a horn is used to signal the start of meal period.  Until January 2013, the horn blew first at 12:00 p.m. and then at 12:30 p.m.[74]  Employees were required to perform their job tasks right up to the start of the lunch period, e.g., the sound of the first bell.[75]  “[T]he horn goes off at 12:00, you stop working.”[76]  Other than unique scheduling in the desert during the summer months, the lunch-break policy is the same at all of Defendant’s facilities.[77]

 

Second, Plaintiffs demonstrate the existence of a company-wide policy regarding hand washing before lunch.  Defendant’s PMQ specifically testified that Defendant’s “official policy” is that all direct outside laborers must wash their hands before lunch,[78] that this policy on hand washing is the same at all facilities,[79] and that Defendant uses its supervisors to trains employees on how to wash before lunch.[80]  Cornia further testified that this corporate policy on hand washing is dictated through Defendant’s “GAP” or “Good Agricultural Practices” program, and that GAP information is conveyed through safety meetings.[81]  Cornia testified that if an employee is caught not washing their hands, they are given verbal warnings and constant reminders.[82]

 

Although Defendant argues that employees were free to wash their hands immediately prior to the first lunch horn, Cornia’s testimony supports that the common practice was for most employees to work up to the first lunch horn.  “Q.  After that bell rang that told them it was okay to go wash their hands?  A.  If they want to get up and wash their hands before that, we’re not going to stop them.  Q.  But for most of the workers, when they heard that bell, that meant, ‘Stop what you’re doing’; correct?  A.  Yes.”[83]

 

Plaintiffs’ theory also posits that it is Defendant’s policy to require employees to wash their hands a second time after lunch.  Ortiz specifically testified that washing a second time after lunch was “the policy of the nursery.  Because I had eaten and I couldn’t contaminate the plant if I had grease or something on my hands.”[84]  Ortiz attributed her knowledge of this policy to “a booklet” and her supervisor Victorina Retiz.[85]  Likewise, Rojas testified, “Vicky told us that when – we had to wash our hands before going to lunch and when we were walking back after lunch going back to work.”[86]

 

Third, Plaintiffs demonstrate the existence of a company policy restricting where meal breaks can be taken.  The Employee Handbook states unequivocally that “meal breaks may only be taken in designated areas.”[87]  “Eating in unapproved areas after notification by management” is subject to “disciplinary action.”[88]  Dr. Herman states that on his inspection of the Gilroy facility, “[f]ive separate areas were identified by Headstart Nursery as designated lunch areas.”[89]  Plaintiffs provide further evidence that the designated lunch areas at the other facilities were some distance from the work stations, requiring a walk of anywhere between one to ten minutes.[90]  Defendant’s evidence that some of the Plaintiffs admitted eating “snacks” just outside of where they were working[91] is irrelevant to the issue of whether Defendant had a policy of requiring “meal breaks” to be taken only in designated areas.

 

Plaintiffs’ theory of liability also posits that Defendant’s employees must be back at their work stations by the second horn.  Plaintiffs cite a portion of the Employee Handbook requiring employees “to be in your assigned work area to begin work at the scheduled starting time.”[92]  A few putative class members testified that it was “the rule” to be back at the work areas at 12:30 p.m., citing the presence of supervisors and the threat of verbal attention or written tickets.[93]  In contrast, Cornia testified that the second horn did not exist to tell people that they had to be back at their stations, but rather, “[t]o let people know to stop eating, that it’s time to start heading back to work.”[94]  However, Plaintiffs submit a written “Employee Warning” document from August of 2001 in which Ortiz was accused of “arriving late to her work area 12:30 pm.”[95]  The document goes on to state that Ortiz should “[b]e conscious of the time we have, it is … 25 minutes for lunch time. . . . Lunch 12:00 to 12:25 pm”.[96]  As Defendant points out, this event occurred well before the relevant class period, but it is still probative that the warning document specifically represented the lunch period to be only 25 minutes long and required Ortiz to be back at her work area by 12:30 p.m.

 

The Court finds that Plaintiffs’ theory of liability is “likely to prove amenable to class treatment” (Brinker, supra, 53 Cal.4th at p. 1021) for the three locations (Gilroy, Desert Sea/Mecca, Castroville) that used a 12:00 p.m. to 12:30 p.m. horn system until January 2013.  Under this theory, if the putative class members were required to work until the 12:00 p.m. lunch horn, wash their hands before eating, walk to a designated lunch area in order to eat, wash again upon return, and be ready to work again by the 12:30 p.m. horn, these workers would inevitably spend at least some portion of their 30-minute meal period conducting themselves in accordance with Defendant’s explicit policies regarding hand washing and meal breaks.  Whether this constitutes a sufficient duty-free meal period for purposes of Labor Code section 512 subdivision (a), Brinker, supra, 53 Cal.4th 1004, and the relevant wage orders goes to the merits of the theory.  By itself, the theory is based on evidence of Defendant’s policies that appear common to the putative Meal Period Class at the Gilroy, Desert Sea/Mecca and Castroville locations.

 

However, the class period is limited to October 2007 to December 2013.  Proving liability under the new system, effective January 2013 (which allots 40 total minutes for lunch and commuting) portends individualized inquiries because 40 minutes appears to be a sufficient amount of time for a full 30-minute meal break and for hand-washing and commuting from most work stations.

 

As for Defendant’s six other facilities, Plaintiffs have not presented a clear picture of how they can prove Defendant’s liability based on predominantly common facts and evidence for facilities where horns were not used.  Plaintiffs point out that Defendant’s meal policies are generally the same at all locations, but proving liability at facilities where horns were not used threatens to devolve into individualized inquiries on how each of the employees were notified of the start and end of the meal periods.

 

Defendant submits that several putative class members testified being able to start walking to the lunch area before the first horn went off and returning after the second horn.[97]  Defendant cites further deposition testimony of putative class members that they are permitted to be away for from their work stations for more than 30 minutes and have not been disciplined for not returning at 12:30 p.m.[98]  Some of Defendant’s declarants state that there are days when they leave for lunch a few minutes before the first bell.[99]  As discussed above, Defendants’ boilerplate declarations should be given little weight.  The deposition testimony of putative class members, though suggestive of individualized circumstances, does not tend to demonstrate that individualized inquiries will likely predominate over common ones at the facilities where horns were used.  For instance, Defendant relies on the deposition testimony of Margarita Flores Gutierrez, who testified that when the second lunch bell rang at 12:30, “[s]ome” of her fellow employees “were already coming back.  Some would make it like 2 minutes after.”[100]  Her observations about “some” employees do not tell us about what commonly occurred, and she even observed that “some” of her co-employees were back when the second bell rang, so the evidence is, at best, equivocal.  She was later asked, “Did you ever, in the time before the lunch bell changed … see anybody leave early to go for lunch, before noon?” and replied, “There were people that would leave 3 to 5 minutes before, and there were other people that would leave right on time. . . . But it was only two supervisors that would be right on you, harassing the people.”[101]  Again, her testimony that “there were people” who left for lunch early does not tend to demonstrate what occurred among most of the putative class, and she recognized that supervisors would harass and “be right on you” for leaving early.  Defendant also relies on the testimony of Amelia Delgado Martinez, who testified regarding the start of meal periods that “sometimes we’re already there when the siren goes off and sometimes it’s been a little bit since it already went off and you still haven’t made it there.”[102]  Her testimony that she is “sometimes” already at a meal area when the siren goes off does not demonstrate what commonly occurs.  Even the boilerplate declarations are not clear on what commonly occurs.  They merely state, “[t]here are days when my co-workers and I prepare to go to our lunch period a few minutes before the bell that marks the beginning of the lunch period. . . . I can go to the bathroom a few minutes before my lunch period to use it and wash hands before the bell rings.”[103]  The boilerplate declarations tend to confirm that employees wait until the first bell to go to lunch, and they do not state that using the bathroom to wash hands before the bell rings is the predominant norm, rather than the exception.

 

Defendant also contends there is a dearth of evidence that employees were disciplined for leaving for lunch too early, eating at a non-designated lunch area, or not returning to their work stations by the second lunch horn.  Several putative class members testified that they were told they would be given a ticket for not being back at their work stations by 12:30,[104] and Maria Cedeno testified that she was given a ticket for being late on two occasions.[105]  Furthermore, Plaintiffs submit the 2001 written warning to Ortiz.  Defendant dismisses this record as having been issued prior to the class period, but it is difficult to ignore the fact that a supervisor represented the lunch period to be only 25 minutes long and required Ortiz to be back at her work area by 12:30 p.m.  Defendant does not contend there was any sort of policy change since 2001 (at least until January 2013) that would explain these statements in the 2001 document.  Furthermore, the lack of evidence of discipline could just as well suggest that the more common practice of Defendant’s employees was to simply follow Defendant’s clearly-stated company policies.

 

Superiority

 

In deciding whether a class action would be superior to individual lawsuits, ‘the court will usually consider [four factors]: [¶] [(1)] The interest of each member in controlling his or her own case personally; [¶] [(2)] The difficulties, if any, that are likely to be encountered in managing a class action; [¶] [(3)] The nature and extent of any litigation by individual class members already in progress involving the same controversy; [and] [¶] [(4)] The desirability of consolidating all claims in a single action before a single court.’”  [Citation.]”  (Ali v. U.S.A. Cab Ltd. (2009) 176 Cal.App.4th 1333, 1353.)

 

Each of these factors favors class treatment.  Here, it is likely the putative class members would not prefer to control their cases personally, since the claims derive from common policies and practices that can be adjudicated in one trial.  As for the difficulties in managing a class action, “when individual issues of fact predominate over common issues…, ‘a class action would be extremely difficult to manage … .’ [Citation.]”  (Ali, supra, 176 Cal.App.4th at p. 1353.)  As discussed above, the record demonstrates sufficient common questions of law and fact as to a subset of the putative Meal Period Class.  There are no related cases cited by the parties.  The proposed class appears large enough to make consolidation of motions and trials worthwhile.  The Court finds that four factors discussed above demonstrate the superiority of class treatment over potential individual lawsuits.

 

Defendant argues that even if a class is certified, Defendant must still be entitled to contest individual claims on any ground not resolved in the trial of common issues, and thus, statistical sampling may be necessary.  Under Duran v. US Bank Nat’l Assoc. (2014) 59 Cal.4th 1, Plaintiffs would need to present a specific trial plan for the use of such evidence at the certification stage.  Plaintiffs argue that statistical sampling will not be necessary to show baseline amounts of time spent commuting and washing.

 

Generally speaking, “[i]ndividual issues do not render class certification inappropriate so long as such issues may effectively be managed. [Citations.]”  (Sav-On, supra, 34 Cal.4th at p. 334.)  Thus, the fact that Defendant would challenge certain class members’ claims for individualized reasons should not defeat certification if those individualized issues can be managed (e.g., bifurcation, summary dismissal, exclusion from the class).  The Court remains open to the possibility that the evidence will show that deviations from Defendant’s policies (e.g., leaving for lunch early, not washing hands) were more common than the few equivocal examples cited in opposition, in which case statistical sampling may become necessary to fairly adjudicate how often Defendant’s policies resulted in truncated meal breaks.  And of course, there is always the option of decertification if such individualized issues prove to be predominant.  (See Cal. Rules of Court, 3.764(a)(4).)

 

For all of these reasons, the motion for class certification is GRANTED IN PART.  The Court certifies a Meal Period Class of all California based non-exempt employees of Defendant who worked at the Gilroy, Desert Sea/Mecca and Castroville locations from October 2007 through December 2013 and were subject to Defendant’s uniform meal period and hand washing policies and were not paid an hour of pay for meal period violations.  The Court also certifies a Waiting Time Penalty Class of all California based employees employed by Defendant at the Gilroy, Desert Sea/Mecca and Castroville locations from October 2007 through December 2013 who left employment with Defendant and did not receive all wages due as a result of Defendant’s failure to pay meal period violations on termination.

 

The motion for class certification is DENIED WITHOUT PREJUDICE as to the inclusion of individuals employed at Defendant’s other facilities.

 

The motion for class certification of the Pay Stub Class is DENIED.