SUPERIOR COURT OF CALIFORNIA

COUNTY OF SANTA CLARA

CORINTHIAN INTERNATIONAL WAGE AND HOUR CASES

Coordinated Actions:

Turner v. Corinthian International Parking Services, Inc.,

Santa Clara County Superior Court Case No. 16CV292208

Rocquemore v. Corinthian International Parking Services, Inc.

Alameda County Superior Court Case No. RG16801065

Case No. JCCP 4886

TENTATIVE RULING RE: MOTION FOR CLASS CERTIFICATION AND RENEWED MOTION FOR CLASS CERTIFICATION

The above-entitled action comes on for hearing before the Honorable Thomas E. Kuhnle on August 30, 2019, at 9:00 a.m. in Department 5. The Court now issues its tentative ruling as follows:

I. INTRODUCTION
II.
These are two coordinated cases arising out of alleged Labor Code violations. The Turner case is a putative class action. Turner’s First Amended Class Action Complaint for Damages, filed on June 11, 2015, in Alameda County, sets forth the following causes of action: (1) Violation of California Labor Code sections 510 and 1198 (Unpaid Overtime); (2) Violation of California Labor Code sections 226.7 and 512, subdivision (a) (Unpaid Meal Period Premiums); (3) Violation of California Labor Code section 226.7 (Unpaid Rest Period Premiums); (4) Violation of California Labor Code sections 1194, 1197, and 1197.1 (Unpaid Minimum Wages); (5) Violation of California Labor Code sections 201 and 202 (Final Wages Not Timely Paid; (6) Violation of California Labor Code section 2802 (Unreimbursed Business Expenses); (7) Violation of California Business & Professions Code section 17200, et seq. (Unfair Competition/Unfair Business Practices).

On March 22, 2019, Plaintiff Adrian Turner’s (“Plaintiff”) motion for class certification was argued before the Court. The Court found Plaintiff’s rounding claim and split shift premium claim were not alleged in Plaintiff’s First Amended Complaint. The Court permitted Plaintiff to file a renewed motion for certification of those claims and deferred ruling on the remainder of the original motion in the meantime. On July 1, 2019, Plaintiff filed a Second Amended Class Action Complaint, which included allegations regarding the rounding claim. Plaintiff has abandoned the split shift premium claim, but has filed a renewed motion on the rounding claim. The Court will now rule on the original motion and the renewed motion together.

III. LEGAL STANDARD
IV.
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 (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 (1976) 18 Cal.3d 381, 385.)

V. DISCUSSION OF ORIGINAL MOTION NOT INCLUDING ROUNDING CLAIM
VI.
A. Defendant’s Request for Judicial Notice
B.
Defendant requests judicial notice of the following:

(1) DLSE Enforcement Policies and Interpretation Manual §§ 45.5.2, 45.5.5, and 45.5.6 (June 2002);
(2)
(3) “History of California Minimum Wage” from the California Department of Industrial Relations website (https://www.dir.ca.gov/iwc/MinimumWageHistory.htm);
(4)
(5) DLSE Enforcement and Interpretation Manual §§ 47.1-47.4 (December 2018); and
(6)
(7) DLSE Enforcement and Interpretation Manual § 45.2.3.1 (December 2018).
(8)
Defendant’s request for judicial notice is GRANTED. (Evid. Code, § 452, subd. (c); Church v. Jamison (2006) 143 Cal.App.4th 1568, 1579, fn. 19 [taking judicial notice of DLSE manual].)

C. Ascertainable Class
D.
“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.) “Class 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.)

Plaintiff seeks certification of the following class:

All current and former hourly-paid or non-exempt individuals who were employed by Corinthian International Parking Services, Inc. (“Defendant”) within the State of California at any time during the period from June 11, 2011 up to the deadline, to be determined by the Court at a later date, by which class members may opt-out after being provided notice of certification (the “Class period”), and who are residents of California as of the opt-out deadline.

(Plaintiff Adrian Turner’s Notice of Motion and Motion for Class Certification, p. i:6-13.)

Plaintiff also seeks certification of the following subclasses:

(1) Rounding Subclass : All members of the Class who were subject to Defendant’s rounding policy at any time during the Class Period;
(2)
(3) Meal Period Subclass: All members of the Class who worked at least one shift of more than five hours at any time during the Class Period;
(4)
(5) Rest Period Subclass: All members of the Class who worked at least one shift of three and on-half hours or more at any time during the Class Period;
(6)
(7) Expense Reimbursement Subclass: All members of the Class who purchased shoes and/or apparel to comply with Defendant’s dress code policy at any time during the Class Period.
(8)
(Plaintiff Adrian Turner’s Notice of Motion and Motion for Class Certification, p. i:14-24.)

Plaintiff states in response to discovery that Defendant produced a list of current and former employees that fall within the class definition. Plaintiff asserts that, as of March 25, 2016, there were approximately 2,391 potential class members. Defendant makes no argument in opposition to this factor. Plaintiff has met the ascertainability requirement.

E. Community of Interest
F.
i. Predominant Questions of Law or Fact
ii.
Regarding the predominance of questions of law or fact:

The 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 (2003) 29 Cal.4th 1096, 1104-1105, quoting Collins v. Rocha (1972) 7 Cal.3d 232, 238.)

This is the main disputed factor between the parties. Plaintiff argues common questions predominate with respect to each of his claims.

a. Meal break claim
b.
Plaintiff contends Defendant has a written policy that requires employees to take late meal periods. Plaintiff provides evidence Defendant’s meal and rest period policy states “Current California state law requires an unpaid meal break after five hours of work (or six hours with a signed waiver by the employee), of a period of not less than thirty minutes, and an additional unpaid meal break after ten hours of work, of a duration of not less than thirty minutes.” (Declaration of Jill J. Parker in Support of Plaintiff Adrian Turner’s Motion for Class Certification (“Parker Decl.”), Ex. F.) Additionally, employees in the capacity of “Class A, Class B and/or Class C/PUC driver are required to take . . . one unpaid meal break after six hours of work [and] a second unpaid meal break after ten hours of work. . . .” (Ibid.)

Plaintiff argues this written policy is facially unlawful, citing to Labor Code section 512 for the proposition that the first meal period must be provided before the end of the fifth hour of work, and the second meal period must be provided before the end of the tenth hour of work. Plaintiff provides evidence of instances in which meal period premiums were not paid. (See Parker Decl., Ex. X (Deposition of Douglas Edward Knapp), pp. 98:19-99:23.) Plaintiff also states Defendant fails to schedule meal periods for employees, but instead places the burden on employees to try to find a time to take meal periods in the middle of their demanding job duties. Lastly, Plaintiff asserts Defendant trains employees using timecards that reflect late, short, and missed meal periods.

In opposition, Defendant argues Plaintiff cannot show the meal break claim can be litigated on a class-wide basis. Specifically, Defendant asserts it provides its employees with sufficient opportunity to take meal breaks and is not required to schedule meal breaks. Defendant contends late meal breaks were the exception, not the rule, and that the common practice was to have meal breaks within the first five hours of work. Defendant states meal break premiums have been paid by Defendant since at least 2011.

Defendant relies on the case of Lampe v. Queen of the Valley Medical Center (2018) 19 Cal.App.5th 832. In that case class certification for meal break claims was denied because the employer’s policy provided for meal breaks, allowed meal break waivers, and the plaintiff failed to show evidence any waiver had been compelled. Plaintiff responds that Lampe is distinguishable because in that case there was no evidence of a uniform policy to deny meal breaks and because the employer in Lampe had a form employees could fill out to request meal premium pay.

Plaintiff’s arguments have merit. While it appears meal premium payments were made in some instances and that meal period waivers were signed by some employees , there is no dispute that Defendant had a common written meal period policy. Where an employer has a uniform written policy that is allegedly unlawful, that gives rise to a common question suited for class treatment. (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1033.) To the extent Defendant contends it provides an opportunity for employees to take meal breaks and pays meal break premiums when due, those are substantive merits arguments, which are not properly before the Court on a motion for class certification.

c. Rest period claim
d.
Plaintiff argues Defendant’s meal and rest period policy does not properly inform employees of the number of rest periods they are entitled to and when they are entitled to take them. Plaintiff asserts the policy states only that “[r]est periods consist of a paid uninterrupted ten (10) minute period, and the employee is not required to note such on his time card.” (Parker Decl., Ex. F.) Plaintiff states Defendant does not schedule rest periods for employees or keep any records of whether rest periods are taken. Plaintiff also states Defendant has admitted (in response to requests for admission) it did not pay any rest period premium payments during the entire class period.

Plaintiff provides evidence employees are discouraged from asking customers to wait to be driven during a break because there is a potential for a customer complaint, and that certain employees could not take breaks during their shifts where they were not on call. (See, e.g., Parker Decl., Ex. N, pp. 51:8-52:19; Ex. Y, pp. 140:22-141:2.)

Defendant argues the rest break policy was sufficient to remind employees of their right to take rest breaks. Defendant argues further that Plaintiff’s evidence only proves a rest break claim would be unascertainable and unmanageable on a class-wide basis because the only way to determine if an employee was denied a rest period would be to make an individualized inquiry of each employee. Defendant contends it was easy for employees to take rest breaks and provides evidence employees were able to take rest breaks regularly. (See, e.g., Declaration of John Armas, ¶¶ 22-23; Declaration of Mark Jilbert, ¶¶ 26-27; Declaration of Radley Funtanilla, ¶¶ 24 25.)

“[W]hen analyzing the element of predominance for purposes of class certification ‘the focus must be on the policy the plaintiffs are challenging and whether the legality of that policy can be resolved on a classwide basis.’” (ABM Industries Overtime Cases (2017) 19 Cal.App.5th 277, 308, quoting Lubin v. The Wackenhut Corp. (2016) 5 Cal.App.5th 926, 940.) As stated in a similar case: “For purposes of liability, the question is not how many breaks Defendant “forced” the [d]rivers to miss, but instead whether Defendant had an unofficial policy of not providing breaks or created an atmosphere of discouraging [d]rivers from taking breaks.” (Ruiz v. XPO Last Mile, Inc. (S.D. Cal. 2016) 2016 WL 4515859, at *10, emphasis in original.) When there are several declarants that indicate “the schedules set by Defendant did not allow for meal or rest breaks, [] a fact finder could determine from their testimony and other evidence presented [] that Defendant had an unofficial policy of not providing breaks or created a work atmosphere that discouraged taking breaks, and thus violated California law.” (Ibid.)

Further, as stated previously, it is undisputed that Defendant has not paid any rest break premiums at all. Whether a “system-wide failure to pay appropriate [] break premiums” makes Defendant liable to the putative class is a common issue making certification proper. (See Safeway, Inc. v. Superior Court (2015) 238 Cal.App.4th 1138, 1153 and 1158.) In light of the “methods of rendering a class action manageable, including representative testimony, surveys, and statistical analysis, there is no per se bar to class actions related to missed [] breaks.” (Id. at p. 1160.)

While there are some individual issues raised in connection with the rest break claim, those issues mainly concern damages, and additionally, the common issues raised by this claim are more significant. In sum, the Court finds common questions of law and fact predominate over individual issues.

e. Unreimbursed business expenses claim
f.
Plaintiff states Defendant requires putative class members to wear certain clothing, but Defendant does not provide the clothing. Plaintiff alleges Defendant fails to reimburse employees for those costs as required by Labor Code section 2802. (Turner Complaint, ¶¶ 81 83.)

Defendant does not dispute it does not pay employees for the uniforms it requires them to wear. Rather, Defendant argues Plaintiff cannot show this policy violates any law. This argument goes to the substantive merits of the claim and is not properly before the Court on a motion for class certification. (Linder v. Thrifty Oil Co., supra, 23 Cal.4th at pp. 439-440 [the question of certification is essentially a procedural one that does not ask whether an action is legally or factually meritorious].)

Defendant cites to Payton v. CSI Electrical Contractors, Inc. (2018) 27 Cal.App.5th 832, 843, where the court states: “The existence of any common policy is not sufficient to show that common issues predominate. The policy in question must be a means to establish liability on a class-wide basis.” This statement by the court simply stands for the proposition that there must be common proof presented that can support the theory advanced by the plaintiff; it does not mean the plaintiff must establish liability at the class certification stage.

Therefore, common issues predominate with regard to the unreimbursed business expenses claim.

g. Wage statement and waiting time penalties; UCL claims
h.
These claims are derivative of the other claims and therefore the Court finds common issues predominate for the same reasons discussed in connection with the meal break, rest break, and unreimbursed business expenses claims.

iii. Typicality
iv.
The typicality requirement is meant to ensure that the class representative is able to adequately represent the class and focus on common issues. It is only when a defense unique to the class representative will be a major focus of the litigation, or when the class representative’s interests are antagonistic to or in conflict with the objectives of those she purports to represent that denial of class certification is appropriate. But even then, the court should determine if it would be feasible to divide the class into subclasses to eliminate the conflict and allow the class action to be maintained.

(Medrazo v. Honda of North Hollywood (2008) 166 Cal.App.4th 89, 99, internal citations, brackets, and quotation marks omitted.)

Defendant makes no argument in opposition to this factor and no issue has been raised regarding Plaintiff’s ability to represent the class and focus on common issues. Accordingly, the Court finds the typicality requirement has been met.

v. Adequacy of Representation
vi.
“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.)

Defendant makes no argument in opposition to this factor. The Court finds the adequacy requirement has been satisfied.

G. Substantial Benefits of Class Litigation
H.
“[A] class action should not be certified unless substantial benefits accrue both to litigants and the courts. . . .” (Basurco v. 21st Century Ins. (2003) 108 Cal.App.4th 110, 120, internal quotation marks omitted.) 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.)

There are significant common issues in this case. There are also a large number of class members and it would be inefficient for the class members to bring many individual lawsuits. Accordingly, the Court finds there are substantial benefits of class litigation.

I. Defendant’s Objections
J.
Defendant objects that certain of Plaintiff’s declarations are false or taken out of context and should be disregarded. Defendant points out inaccuracies in some of the declarations regarding the dates each individual worked for Defendant (and in one case an individual who did not work for Defendant at all) and various other inaccuracies. The Court has not relied on these declarations.

K. Manageable Trial Plan
L.
In connection with the motion, Plaintiff submits a trial plan. Defendant opposes the submission of the trial plan, arguing that it is improper argument that violates the twenty-page rule and that it fails to address individualized issues.

In reviewing the trial plan, the Court notes that the plan does not add argument regarding certification, but instead addresses how the case can be litigated following certification. The Court therefore does not consider the trial plan to be improper additional argument. It is appropriate for a trial plan to be submitted so it can be determined how individual issues can be managed in the litigation. (See Duran v. U.S. Bank National Assn. (2014) 59 Cal.4th 1, 32.)

While the trial plan may need to be modified in the future, the Court finds it adequately addresses how individual issues, such as damages, can be determined at trial. Accordingly, the Court does not find the trial plan is unworkable such that class certification should be denied.

M. Arbitration Agreements
N.
Defendant asserts that, after this action was filed, a number of putative class members signed arbitration agreements by which they agreed to waive class treatment of claim arising after the signing of the agreements. Defendant contends any class that is certified should be limited to those who did not sign a class waiver.

As pointed out by Plaintiff, no evidence of these agreements has been presented. Moreover, to the extent the agreements exist, a determination would need to be made in connection with a separate motion whether the agreements are enforceable.

O. Conclusion
P.
Plaintiff’s original motion for class certification is GRANTED as to the main class, the meal period subclass, the rest period subclass, and the expense reimbursement subclass.

VII. DISCUSSION OF RENEWED MOTION
VIII.
Plaintiff moves for certification of the following rounding subclass:

All current and former hourly-paid or non-exempt individuals who were employed by Corinthian International Parking Services, Inc. within the State of California at any time during the period from June 11, 2011 to February 13, 2017 and who are residents of California as of the opt-out deadline.

At least one court in California has adopted the federal employee time-rounding standard, stating “the rule in California is that an employer is entitled to use the nearest-tenth rounding policy if the rounding policy is fair and neutral on its face and it is used in such a manner that it will not result, over a period of time, in failure to compensate the employees properly for all the time they have actually worked.” (See’s Candy Shops, Inc. v. Superior Court (2012) 210 Cal.App.4th 889, 907, quotation marks omitted.)

Plaintiff contends Defendant utilized a rounding policy by which employees’ time entries would be rounded to the closest quarter hour. For example, an employee clocking in at 8:53 a.m. would have their time entry rounded to 9:00 a.m., as would an employee who clocks in at 9:07 a.m. Plaintiff argues further that Defendant’s rounding policy operated in such a manner as to deprive putative class members of meal periods and denied them meal premium pay because employee time would sometimes be rounded down to a number of hours that did not require Defendant to pay a late meal period premium. For example, Plaintiff states on September 15, 2012, he punched in at 10:24 a.m., but did not clock out for lunch until 4:30 p.m., six hours and six minutes after he started work. Defendant rounded the time entry to reflect Plaintiff only worked six hours, thereby depriving Plaintiff of a late meal period premium.

In opposition, Defendant argues: (1) Plaintiff does not meet the typicality requirement because he was overpaid as a result of rounding, which means he is not a member of the sounding subclass; (2) Time-rounding has been confirmed as a lawful practice by California courts; and (3) Plaintiff has not presented a manageable trial plan.

A. Typicality
B.
Although Defendant made no argument regarding typicality in the original motion for class certification, Defendant now argues Plaintiff does not meet the typicality requirement. Defendant contends Plaintiff benefited from the rounding policy because the policy resulted in a gain of 3.32 hours for Plaintiff.

In support of this assertion, Defendant relies on the Third Declaration of Judy Yip. Judy Yip is a principal in the Forensic and Financial Consulting Services Group at Hemming Morse, LLP in San Mateo, California. (Third Declaration of Judy Yip, ¶ 2.) She states she reviewed 219 days of time records for Plaintiff – from September 2, 2011 to October 19, 2012. (Id. at ¶ 4.) She did not consider one time entry for September 16, 2011 or the time records for May 12, 2012. (Id. at ¶ 6.) For September 16, she states she cannot determine if any rounding was done, and for May 12 she states there was an error related to the hours paid, unrelated to rounding. (Ibid.) She also did not consider a timecard with the name “Chris Turner” on it because it did not have Adrian Turner’s name on it. (Id. at ¶ 7.)

Not including the three referenced timecards, Yip calculated the large handwritten numbers on the timecards total 3.32 hours more than the time records show. (Third Declaration of Judy Yip, ¶ 8.) Therefore, if Plaintiff was paid based on the large handwritten numbers, he was paid for 3.32 hours more than he actually worked as a result of the rounding. (Ibid.)

Defendant argues the Yip Declaration establishes Plaintiff has no claim for unpaid wages under the rounding policy because the policy benefitted him. Defendant argues therefore that Plaintiff is not a member of the rounding subclass and cannot represent the subclass.

Defendant’s argument lacks merit. While it is generally true that the named plaintiff in a class action must be a member of the class he purports to represent, “[i]ssues of standing are generally determined by reference to the allegations made in the complaint.” (First American Title Ins. Co. v. Superior Court (2007) 146 Cal.App.4th 1564, 1573-1574.) Even if the Court looked beyond the allegations of the operative pleading, determining whether Plaintiff was injured and can properly assert a claim would require looking at the merits of Plaintiff’s claim. Generally, however, the validity of a complaint’s allegations is not at issue on class certification. (Dailey v. Sears, Roebuck & Co. (2013) 214 Cal.App.4th 974, 990.) Rather, a court looks at the nature of the legal and factual disputes likely to be presented as those disputes are framed by the pleadings. (See ibid.)

Moreover, the evidence submitted by Defendant does not establish Plaintiff benefitted from the rounding policy and has no claim. Yip admits in her declaration that she did not include several time records in her determination of Plaintiff’s pay. (Third Declaration of Judy Yip, ¶¶ 6-8.) Therefore, her conclusion regarding the number of hours impacted by rounding for which Plaintiff was paid is based on incomplete information.

Additionally, Yip’s conclusion that Plaintiff was paid for 3.32 hours more than he actually worked as a result of rounding relies on the assumption that Plaintiff was paid based on the large handwritten numbers on the timecards. (Third Declaration of Judy Yip, ¶ 8.) The Court cannot make that assumption, but must rely on actual evidence submitted.

In sum, Defendant has not shown Plaintiff has no claim and is not part of the rounding subclass. Plaintiff fits within the class definition and therefore can represent the class.

C. Legality of Time-Rounding
D.
Defendant spends several pages discussing the legality of time-rounding, arguing that such a policy is lawful. Defendant contends that if an employer has a uniform written policy that is lawful, class treatment should be improper.

Plaintiff correctly points out on reply that the cases on which Defendant relies regarding the legality of time-rounding are merits decisions, mainly involving summary judgment motions. As stated in connection with the original motion for class certification, the question of certification is essentially a procedural one that does not ask whether an action is legally or factually meritorious. (Linder v. Thrifty Oil Co., supra, 23 Cal.4th at pp. 439-440.) The existence of an allegedly illegal common policy, the legality of which can be determined on a class-wide basis, is precisely the type of claim suitable for class treatment. (ABM Industries Overtime Cases, supra, 19 Cal.App.5th at p. 308, quoting Lubin v. The Wackenhut Corp., supra, 5 Cal.App.5th at p. 940 [the focus must be on the policy the plaintiffs are challenging and whether the legality of that policy can be resolved on a classwide basis].)

Consequently, whether or not the rounding policy was legal is not relevant to the certification decision; it only matters that the rounding policy was applied on a common basis to the entire putative class.

E. Trial Plan
F.
Plaintiff states a class action trial will be manageable and the Court has the authority to implement a trial plan using statistical evidence. Plaintiff asserts, however, that statistical evidence will unnecessary because Plaintiff can rely on Defendant’s own records to calculate the amount of money each class members lost due to the rounding policy.

Defendant contends managing a rounding subclass would be neither efficient nor manageable. Specifically, Defendant argues: (1) about half of the putative class was overpaid as a result of the rounding policy and should not receive a windfall and (2) Defendants’ time and pay records consist of thousands of individually written or punched time cards stored in bankers’ boxes.

Defendant’s first argument is irrelevant to manageability and a trial plan; it simply means class members who are found to have suffered no damage will not receive compensation. With regard to the second argument, as explained by one case:

[W]here the employer’s records are inaccurate or inadequate and the employee cannot offer convincing substitutes a . . . difficult problem arises. The solution, however, is not to penalize the employee by denying him any recovery on the ground that he is unable to prove the precise extent of uncompensated work. Such a result would place a premium on an employer’s failure to keep proper records in conformity with his statutory duty; it would allow the employer to keep the benefits of an employee’s labors without paying due compensation . . . . In such a situation we hold that an employee has carried out his burden if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference. The burden then shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negative the reasonableness of the inference to be drawn from the employee’s evidence. If the employer fails to produce such evidence, the court may then award damages to the employee, even though the result be only approximate.

(Hernandez v. Mendoza (1988) 199 Cal.App.3d 721, 727, quoting Anderson v. Mt. Clemens Pottery Co. (U.S. 1946) 328 U.S. 680, 687-688.)

Defendant cannot rely on the inadequacy of its own records to prevent certification. Moreover, the Court notes Plaintiff previously submitted a trial plan for the case, which the Court found adequately addresses how individual issues, such as damages, can be determined at trial.

G. Conclusion
H.
Plaintiff’s renewed motion for class certification is GRANTED.

The Court will prepare the final order if this tentative ruling is not contested.