Case Name: Silvia Hernandez v. Wells Fargo Bank, National Association, et al.
Case No.: 16-CV-299319

* This tentative ruling was issued to the parties on June 5, 2018.

This is a putative wage and hour class action by employees of defendant Wells Fargo Bank, National Association. Before the Court is plaintiff’s motion to certify two classes, which defendant opposes.

I. Factual and Procedural Background

Plaintiff alleges that she worked for Wells Fargo from 2008 to 2013 or 2014, and again from January 2015 to March 28, 2016. (Complaint, ¶ 8.) During her employment, her wage statements did not identify her accurate total hours worked when she was paid shift premium and shift premium overtime wages. (Ibid.) In addition, plaintiff earned non-discretionary incentive pay that was not factored in to her regular rate of pay for purposes of calculating meal period premiums. (Ibid.)

On June 17, 2016, plaintiff filed this action in San Benito County on behalf of two putative classes corresponding to her two theories of liability described above. (Complaint, ¶ 15.) The complaint asserts claims for (1) meal premium violations under Labor Code sections 226.7 and 512, (2) wage statement violations under Labor Code section 226, (3) penalties under the Private Attorneys General Act (“PAGA”), and (4) unfair competition under Business & Professions Code section 17200 et seq. The action was transferred to this Court on August 30, 2016.

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’s request for judicial notice of an unpublished order in another action against Wells Fargo involving meal period claims similar to plaintiff’s is DENIED. Unpublished California opinions “must not be cited or relied on by a court or a party in any other action.” (Cal. Rules of Court, rule 8.1115(a).) Plaintiff’s request for judicial notice of an unpublished order and motion in another Wells Fargo case (request no. 2) is similarly DENIED.

Plaintiff’s request for judicial notice of Wells Fargo’s opposition to its motion to compel further responses to interrogatories in this action (request no. 1) is GRANTED. (Evid. Code, § 452, subd. (d).) Her request for judicial notice of a motion in which defendant stipulated to class certification in another action (request no. 3) is DENIED for lack of relevance. While plaintiff argues that defendant should be estopped from contesting commonality in this action based on its stipulation that rest break claims in a similar case were susceptible to common proof, the Court disagrees considering that different facts and claims were involved in that case.

Plaintiff objects to and moves to strike five putative class member declarations submitted by defendant on three grounds. First, she contends that defendant failed to obtain required conflict waivers from the declarants, citing Richardson v. Interstate Hotels & Resorts, Inc. (N.D. Cal., Mar. 12, 2018, No. C 16-06772 WHA) 2018 WL 1258192 (“Richardson”). In Richardson, counsel improperly represented the declarants during their depositions, which created a conflict of interest necessitating a waiver. (Id. at *6-8.) No such representation occurred here, and plaintiff’s argument that waivers were required accordingly fails. Plaintiff further argues that current employee declarations are inherently biased, citing Avilez v. Pinkerton Government Services (C.D. Cal. 2012) 286 F.R.D. 450 (“Avilez”) (vacated and remanded on another ground by Avilez v. Pinkerton Government Servs., Inc. (9th Cir. 2015) 596 Fed. App’x. 579). However, Avilez struck declarations based on the nondisclosure of declarants’ contact information, not the unreliability of employee testimony. While the Court acknowledges the concerns raised by the opinion in the discussion quoted by plaintiff, these concerns go to the weight to be accorded to current employee declarations and not to their admissibility. Finally, plaintiff argues that the declarations lack foundation because they fail to attach evidence, such as wage statements, proving that the declarants were paid meal period premiums. This argument lacks merit. The declarants’ statements that they employed certain practices when recording their own meal periods provide adequate foundation for their testimony. The employee declarations will be considered by the Court.

In her reply brief, plaintiff contends that the Court should reject the declaration of defendant’s expert, Dr. Jay Finkelman. Dr. Finkelman holds a Ph.D. in Industrial/Organizational Psychology and is a professor at the Chicago School of Professional Psychology. He declares that it is unusual for an organization to pay meal period premiums based on employee self-reporting, as Wells Fargo does, and states that most organizations have a manager or supervisor verify employees’ claims before paying such premiums. Dr. Finkelman goes on to summarize studies supporting his opinion that self-reporting is unreliable because employees have different perceptions of their work environments due to various personal factors.

Plaintiff’s argument does not address these aspects of the declaration, but relates to Dr. Finkelman’s statistical analysis at paragraphs 15-16 of his declaration, in which he concludes that “there is a statistically significant likelihood that factors other than chance caused the discrepancies between the number of times that each employee reported that he or she ‘had no opportunity to take [a] compliant meal period.’ ” The Court agrees with plaintiff that the sample size used by Dr. Finkelman—which is not clearly stated but appears to be 27 or fewer employees—is too small for a class of over a thousand individuals. Further, Dr. Finkelman does not adequately explain his methodology of cutting off his analysis “at the intervals of 17 and 10” reported “no opportunity” selections or gaps in such selections. The Court will accordingly disregard this aspect of Dr. Finkelman’s declaration, but will consider the remainder.

Finally, in objections to plaintiff’s reply evidence filed on May 31, defendant urges the Court to exclude plaintiff’s supplemental declaration. However, defendant’s argument addresses the credibility of plaintiff’s declaration rather than its admissibility. While the Court will consider these arguments in evaluating the weight to accord the supplemental declaration, they do not support excluding it entirely.

IV. 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, plaintiff seeks to certify two classes of employees. The first proposed “Shift Premium Class” corresponding to her wage statement claims is defined as all non-exempt California employees “who were paid shift premium pay, including without limitation ‘Shift Premium’ and ‘Shift Premium OT,’ at any time from June 17, 2015, through the present.” The second proposed “Meal Break Premium Class” is defined as all non-exempt California employees “who were paid any meal break premium payments and earned non-discretionary remuneration, including without limitation ‘Shift Premium,” ‘Shift Premium-OT’ and ‘RB Quarterly Bonus,’ in the same pay period, at any time between June 17, 2012, through the present.”

In response to interrogatories, defendant has stated that there are over 1,000 individuals in each proposed class. Defendant does not dispute that the proposed classes are numerous and readily ascertainable from its records, and the Court finds that these criteria are satisfied.

Wells Fargo does raise one issue with regard to the manner in which the “Meal Break Premium Class” is defined, urging that the class should be defined to encompass employees who received a meal period premium “during a time period covered by nondiscretionary incentive compensation” as opposed to employees who received nondiscretionary pay “in the same pay period.” Plaintiff does not respond to defendant’s argument in her reply brief. The parties are directed to meet and confer on this issue and to address it with the Court at the hearing.

V. 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.)

Defendant argues that plaintiff has failed to establish predominance with regard to either of the proposed classes.

A. The Meal Break Premium Class

The parties appear to agree that, although Wells Fargo has a facially compliant meal period policy, putative class members received late meal breaks from time to time. Wells Fargo’s policy and practice has been to pay meal period premiums for late or otherwise noncompliant meal periods that are self-reported by employees under an “honor system.” Plaintiff does not take issue with this practice or contend that Wells Fargo failed to pay premiums for all noncompliant meal periods. Rather, she alleges that the premiums paid were too low in some cases because non-discretionary incentive pay was not factored in to employees’ regular rates of pay for purposes of this calculation.

As an initial matter, Wells Fargo contends that it appropriately used employees’ base pay rates to calculate meal period premiums, and California law does not require incentive pay to be factored in to the regular rate of pay used for this purpose. However, the rate of pay that must be used to calculate meal period premiums is a merits issue that is not appropriately resolved at class certification. Plaintiff correctly argues that this central issue may readily be resolved on a classwide basis.

Wells Fargo further contends that even if it used a premium rate that was too low in some cases, plaintiff must show that employees were actually entitled to meal period premiums in the first place for liability to result. Because employees self-reported their late meal periods and Wells Fargo made no effort to verify the accuracy of these reports, Wells Fargo urges that its records of noncompliant meal periods are unreliable and that individualized inquiries will predominate with regard to whether meal period premiums were owed to class members.

In raising this issue, Wells Fargo does not appear to suggest that class members falsely reported taking late meal periods. Rather, it correctly urges that employers are “not obligated to police meal breaks and ensure no work thereafter is performed.” (Brinker Restaurant Corp. v. Superior Court (Hohnbaum) (2012) 53 Cal.4th 1004, 1040 (hereinafter, “Brinker”).) “Bona fide relief from duty and the relinquishing of control satisfies the employer’s obligations, and work by a relieved employee during a meal break does not thereby place the employer in violation of its obligations and create liability for premium pay.” (Id. at pp. 1040-1041.) Considering this standard, Wells Fargo contends that employees may have continued working past the time of their scheduled meal breaks even when they were under no obligation to do so, and misreported these late meal periods as triggering premium pay under the “honor system.”

The issue raised by defendant warrants serious attention now and as the action proceeds. Wells Fargo is correct that it does not owe meal period premiums at all where employees voluntarily delayed their meal periods. (See Magadia v. Wal-Mart Associates, Inc. (N.D. Cal., Jan. 9, 2018, No. 17-CV-00062-LHK) — F.R.D. —-, 2018 WL 339139 (hereinafter, “Magadia”), at *8 [holding that the same theory of liability advanced by plaintiff did require an underlying assessment of “whether each meal period premium received by each class member was legally required”].) However, the Court is not persuaded that this issue defeats certification. The evidence shows that throughout the class period, employees have used an online timekeeping system called “Time Tracker” to enter the times they begin and end their meal periods. Time Tracker automatically detects any missed or potentially noncompliant meal periods, and prompts employees to indicate whether they “had no opportunity to take my compliant meal period” or were “provided the opportunity to take my compliant meal period.” If employees select the first option, they are paid a meal period premium without any manager approval or further review by Wells Fargo, following the “honor system.” If employees select the second option, they do not receive a premium. Thus, Wells Fargo’s own recordkeeping system does distinguish between potentially noncompliant meal breaks that resulted from employee choice and truly noncompliant meal periods that occurred when employees “had no opportunity to take” their breaks. (See ibid. [certifying a class where “Wal–Mart’s own records can be used to determine whether any particular meal period premium received by a class member was prompted by an actual failure by Wal–Mart to provide a compliant meal period”].) Wells Fargo does not contend that this evidence is inadmissible or would be ineffective, standing alone, to establish which potentially noncompliant meal periods resulted from employees’ voluntary choices. While it correctly notes that the defendant in Magadia made additional efforts to investigate employee claims of noncompliant breaks before recording them as such, Wells Fargo’s choice of a less robust procedure does not render its records meaningless.

In support of its opposition, defendant submits employee declarations (and the expert declaration discussed above) that show a degree of variance in employees’ interpretations of when they have the “opportunity” to take a break. For example, Jeanette Cid declares that she would record that she had no opportunity to take a break “where a customer walks in and requests to see me and the meeting causes me to start my meal period after the end of my fifth hour of work, whether or not the customer is willing to reschedule” or “if the branch seemed busy and I decided to stay to help out and take my lunch past the fifth hour.” However, Alexandra Delgado would indicate she did have an opportunity to take a break if a customer called for her and delayed her break, because “I always have the choice to call the customer back or transfer the call to another banker.” Kahlil Grier would state he had no opportunity to take a compliant meal period “when I felt that there would not be enough coverage for me to leave for my lunch,” but would state he did have an opportunity to take his break where “I felt there was enough coverage, but the branch seemed busy, and I decided to start my meal period past the fifth hour.”

While the declarations show some variance in employees’ understandings, they are consistent in many regards. For example, no employee—including plaintiff—indicated that he or she would record no opportunity to take a break if he or she delayed a break for personal reasons. Similarly, no employee indicated that he or she would choose this option if there was no apparent reason to keep working, but the employee simply felt like continuing to work. In addition, employees consistently indicated that Wells Fargo would schedule them for compliant breaks—and that some managers would encourage them to take their breaks when scheduled—but Wells Fargo would accept employees’ self-reporting regarding when they had no opportunity to take their breaks and would pay meal period premiums accordingly, without questioning employees regarding the particular circumstances that prompted them to choose this option.

Ultimately, the Court must evaluate this evidence in light of the standard stated in Brinker. Under this standard, an employer satisfies its obligation to provide a meal period “if it relieves its employees of all duty, relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted 30-minute break, and does not impede or discourage them from doing so.” (Brinker, supra, 53 Cal.4th at p. 1040.) Brinker acknowledged that this standard is somewhat fact-specific in that “[w]hat will suffice may vary from industry to industry.” (Ibid.) However, it did not suggest that making this assessment on a classwide basis would be inappropriate where, as here, the defendant has a consistent policy that is implemented in a generally consistent fashion by its employees. Brinker merely held that the class before it was overbroad because the trial court adopted an incorrect legal standard to define the class. (Id. at p. 1050-1051.) In her concurring opinion in Brinker, Justice Werdegar (who also authored the majority opinion) emphasized that “the opinion of the court does not endorse [the] argument … that the question why a meal period was missed renders meal period claims categorically uncertifiable.” (See Brinker, supra, 53 Cal.4th at p. 1052 (conc. opn. of Werdegar, J.).)

Here, as urged by plaintiff, defendant’s records and its payment of meal period premiums in reliance on those records create a rebuttable presumption that employees who received premiums lacked the opportunity to take a timely break. (See Brinker, supra, 53 Cal.4th at p. 1053 (conc. opn. of Werdegar, J.).) While defendant must and will be permitted to challenge this evidence—just as it must and will be permitted to raise affirmative defenses—individual issues that may arise in this process “pose no per se bar” to certification. (Id. at pp. 1053-1054.) Reviewing the declarations submitted in support of Wells Fargo’s opposition, the Court is not persuaded that the modest variance in employees’ practices that appears to exist will make a difference in the analysis of whether employees who recorded no opportunity to take a break were “relieve[d] of all duty … and permit[ed] … a reasonable opportunity to take” their breaks. (Brinker, supra, 53 Cal.4th at p. 1040.) The Court might find that the entire range of circumstances cited by employees as justifying a “no opportunity” entry do support this conclusion. (See Augustus v. ABM Security Services, Inc. (2016) 2 Cal.5th 257, 272 [requiring guards to remain on call during rest periods did not satisfy employer’s obligation to relieve guards from their duties].) Conversely, the Court might find that because Wells Fargo scheduled employees for compliant breaks, had a policy that such breaks be taken, and did not actively interfere with employees’ breaks, none of the circumstances cited by employees show there was no opportunity for a break. This is a merits issue that appears amenable to resolution on a classwide basis.

Notably, while defendant argues that some employees understood and applied the Brinker standard correctly and others did not, it does not take a clear position regarding where the line is properly drawn. Under the circumstances, it is undesirable and unnecessary for the Court to resolve this issue on class certification. Plaintiff has shown that defendant’s records can be used to establish liability in the event that her theory regarding the rate at which meal period premiums must be calculated prevails. (See Duran v. U.S. Bank Nat. Assn., supra, 59 Cal.4th at p. 28.) While defendant will be permitted to challenge plaintiff’s evidence, plaintiff is not required at this juncture to present a trial plan showing how individual issues raised by defendant’s challenge can be effectively managed. When the time comes, “[r]epresentative testimony, surveys, and statistical analysis all are available as tools to render manageable determinations of the extent of liability.” (Brinker, supra, 53 Cal.4th at p. 1054 (conc. opn. of Werdegar, J.).)

In sum, the Court finds that common issues predominate as to the Meal Break Premium Class. Still, it maintains a continuing responsibility to manage individual issues—including those raised by the defendant—and to decertify the class if they prove unmanageable. (Duran v. U.S. Bank Nat. Assn., supra, 59 Cal.4th at p. 29.) The Court will exercise this responsibility in the event that individual issues regarding the accuracy of Wells Fargo’s records cannot be managed as the action progresses.

B. The Shift Premium Class

Plaintiff’s wage statement claims arise from defendant’s practice of “double-counting” hours to which shift premium pay was applied by listing such hours under a “Shift Premium” line item or line items, listing them again under the “Regular Pay” or “OverTime Pay” line item, and then adding these line items together to reach the “Total” hours displayed on the paycheck. Wells Fargo does not dispute that the information on its wage statements is displayed in this manner, which results in an incorrect “Total” number of hours for wage statements that include premium pay.

Wells Fargo argues at length that no injury results from this practice as required to show a violation of Labor Code section 226. Again, however, this is a merits issue that is not appropriately resolved at class certification. While Wells Fargo goes on to suggest that injury is incapable of being established by common proof, plaintiff correctly responds that this assessment is made under an objective, reasonable person standard, and 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].)

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

VI. 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.)

Wells Fargo does not contest that plaintiff and her counsel will adequately represent the class. Having reviewed the declarations submitted in support of plaintiff’s motion, the Court finds that this requirement is satisfied.

Defendant also does not expressly contest typicality as to the proposed Meal Break Premium Class, although it does note that plaintiff self-reported a higher number of late meal periods than some of her coworkers. Wells Fargo does not explain how it selected the handful of coworkers it compares to plaintiff, and does not suggest that these coworkers are typical of the class. This comparison consequently does not support a finding that plaintiff’s claims are atypical of the class. Since plaintiff and other employees who reported late meal periods suffered the same asserted injury arising from a common course of conduct by Wells Fargo, and there is no appreciable evidence that any unique defenses may apply to plaintiff, typicality is satisfied as to the Meal Break Premium Class.

Defendant does contest typicality with respect to the Shift Premium Class. Citing plaintiff’s deposition testimony, it argues that plaintiff was able to determine her accurate total hours worked from the face of her wage statements, and consequently did not suffer the injury she claims on behalf of other class members. Having reviewed plaintiff’s testimony, the Court does not agree that it necessarily shows plaintiff suffered no injury for purposes of Labor Code section 226. While plaintiff responded “yes” when defendant’s counsel asked if she understood that her total hours worked during a particular pay period were her regular hours plus her overtime hours, she later confirmed that the wage statement at issue displayed a different number of “total” hours. When asked by her own counsel whether the “total” hours showed her total hours worked during the pay period she stated, “I don’t know. I don’t understand this much but supposedly.” While the Court agrees with defendant that plaintiff’s testimony does not make the best possible case for a finding of injury, it finds no reason to conclude that her reactions to these questions or to the contradictory information displayed on her wage statements would be atypical of the class. Whether this level of confusion suffices to show harm under section 226 is a merits issue. The Court accordingly finds that plaintiff’s claims are typical of the Shift Premium Class.

VII. 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.

Defendant contends that certification should be denied on the ground that the potential damages are wholly out of proportion to the alleged wrongdoing in this action. However, it cites no California case that has denied certification on this ground. It appears that the bulk of the potential damages in this action relate to plaintiff’s wage statement claims; while the Court understands defendant’s criticisms of the potential penalties under section 226, the Legislature has addressed such criticism by including willfulness and injury requirements in the statute, among other limitations. It is not the Court’s role to second-guess that approach. (See Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 447-448 [reversing denial of class certification despite defendant’s argument that potential penalties were excessive, noting the limitations within the statute itself].)

To conclude, a class action is superior to individual lawsuits under the circumstances.

VIII. Conclusion and Order

Plaintiff’s motion is GRANTED. The parties shall meet and confer regarding the definition of the “Meal Break Premium Class” as discussed in section IV above and shall address this issue with the Court at the hearing.

The parties are also directed to 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.