SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA CLARA

MARIE DIAZ-SIDBURY, an individual, on behalf of herself and on behalf of all persons similarly situated,

Plaintiff,

vs.

STANFORD HEALTH CARE d/b/a STANFORD UNIVERSITY MEDICAL CENTER, a California corporation, and DOES 1 through 50, inclusive,

Defendants.
Case No. 2014-1-CV-273362

TENTATIVE RULING RE: MOTION FOR CLASS CERTIFICATION

The above-entitled action comes on for hearing before the Honorable Thomas E. Kuhnle on October 26, 2018, at 9:00 a.m. in Department 5. The Court now issues its tentative ruling as follows:

I. INTRODUCTION

This is a putative class action. According to the allegations of the Fourth Amended Class Action Complaint (“4AC”), filed on September 11, 2017, plaintiff Marie Diaz-Sidbury (“Plaintiff”) worked for defendant Stanford Health Care d/b/a Stanford University Medical Center (“Defendant”) from November 2008 to November 2015 as a non-exempt employee. (4AC, ¶ 3.) Plaintiff alleges Defendant failed and continues to fail to correctly record and pay Plaintiff and the putative class for untimely and skipped meal periods that occurred during shifts lasting fewer than eight hours. (4AC, ¶ 12.) Defendant has programmed its electronic timekeeping systems to automatically pay meal period penalties to employees who fail to clock out at all for a meal period during shifts lasting more than eight hours. (Id. at ¶ 13.) Defendant’s systems, however, are not programmed to automatically pay penalties to class members who clocked untimely meal periods or missed meal periods during shifts lasting fewer than eight hours. (Ibid.) Plaintiff’s theory of liability for her UCL claim is that Defendant unlawfully, unfairly, or deceptively failed to provide premium wages for those untimely meal periods that were apparent from a review of Defendant’s own time records. (Id. at ¶ 15.)

Based on these allegations, the 4AC sets forth the following causes of action: (1) Unlawful Business Practices; (2) Failure to Provide Accurate Itemized Statements; (3) Failure to Pay Wages When Due; and (4) Failure to Pay Overtime Compensation.

On July 25, 2017, the Court denied Plaintiff’s earlier motion for class certification, finding Plaintiff sought certification of a theory of liability not alleged in the operative Third Amended Complaint. Following that ruling, Plaintiff moved for leave to file the 4AC and a renewed motion for class certification. The Court granted the motion on September 7, 2017. Plaintiff now brings her renewed motion for class certification.

II. PRELIMINARY ISSUES

A. Defendant’s Motion to Exclude and/or Strike Supplemental Declaration of Plaintiff Marie Diaz-Sidbury in Support of Renewed Motion for Class Certification

Defendant moves to exclude and/or strike the supplemental declaration of class representative Marie Diaz-Sidbury. Defendant argues Plaintiff was not granted leave by the Court to augment the record with testimony or assertions not presented in support of Plaintiff’s original motion for class certification. Defendant also contends several of the paragraphs in the supplemental declaration conflict with Diaz-Sidbury’s January 2018 deposition testimony.

First, Plaintiff did not need leave of Court to file a supplemental declaration. The Court recognizes Defendant’s concern about a new declaration being filed in connection with this class certification motion after Plaintiff already had a prior opportunity to move for class certification. Nevertheless, Plaintiff filed a new pleading (the 4AC) with leave of Court and is not precluded from supporting its new motion for class certification with evidence.

With regard to any possible conflicts between the supplemental declaration and Plaintiff’s deposition testimony, the Court is aware of the general rule that, where a declaration submitted by a party contradicts the declarant’s earlier deposition testimony, the trial court may disregard the declaration. (See Whitmire v. Ingersoll-Rand Co. (2010) 184 Cal.App.4th 1078, 1087.)

To the extent there is any such conflict in the evidence, the Court will give precedence to Plaintiff’s deposition testimony. However, it is not necessary to strike the supplemental declaration.

Defendant’s motion to exclude and/or strike the supplemental declaration is DENIED.

B. Plaintiff’s Motion to Exclude and/or Strike Certain Declarations of Putative Class Members Attached to the Declaration of Geneva A. Collins
Plaintiff moves to exclude and/or strike the declarations of seven of Defendant’s employees that were submitted by Defendant in opposition to the class certification motion. Plaintiff argues payroll and time records for these individuals were not served until September 27, 2018, one day before Plaintiff’s reply papers were due. Plaintiff contends she was prejudiced by the inability to utilize the documents to refute the unsupported statements made in the declarations.
Defendant responds that on May 3, 2018, the parties entered into a stipulation and order regarding the conduct of depositions and the scope and timing of document production. Defendant asserts it complied with the order.

While there does appear to be some gamesmanship by Defendant in producing the documents one day before the reply brief was due, Defendant did not violate any order. This is a discovery issue and Plaintiff could have moved to depose or obtain records from these individuals earlier. In fact, Plaintiff acknowledges she made a conscious decision to forgo seeking the depositions of these declarants. (Plaintiff’s Reply Memorandum in Support of Motion to Exclude and/or Strike Certain Declarations of Putative Class Members Attached to the Declaration of Geneva A. Collins, p. 2:16-21.)

Plaintiff’s motion to exclude and/or strike the declarations is DENIED.

III. DISCUSSION

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.) These requirements are discussed below.

A. 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.) “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 moves for certification of a class of non-exempt employees whose meal period rights were not modified by a union agreement or any on-duty meal period agreement who worked for Defendant from November 18, 2010 to the present. There are approximately 8,446 putative class members. Plaintiff seeks to certify this class with regard to the first cause of action for unlawful business practices (“UCL”).

Class members can be identified from Defendant’s records. Therefore, the class is ascertainable.

B. Community of Interest

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.)

1. Predominant Questions of Law or Fact

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.)

Plaintiff’s alleged theory of liability for the UCL claim is that Defendant failed to provide premium wages or untimely meal periods that were apparent from a review of Defendant’s own time records. (4AC, ¶ 15.) Plaintiff contends there are common issues regarding the determination of whether Defendant’s policies were unlawful, unfair, or deceptive given Defendant’s implementation of a uniform system that (a) informs class members about their right to premium pay for skipped meal periods, (b) ascertains all skipped meal period premiums for shifts lasting more than eight hours, and (c) automatically pays premiums for all skipped meal periods for shifts lasting more than eight hours, but uniformly fails to take any of these three measures with respect to untimely meal periods falling after the fifth hour of work. (Ibid.)

In the moving papers, Plaintiff states she has two theories of legal liability: (1) Defendant violated the UCL by maintaining a facially unlawful policy that failed to authorize meal breaks to class members working a shift of between six and eight hours; and (2) Defendant violated the UCL by failing to automatically pay penalties for meal breaks employees were prevented from taking on time or during shifts under eight hours as promised by the policy.

Plaintiff’s first theory of liability is premised mainly on language in an older version of Defendant’s employee handbook. The handbook states: “Non-exempt employees receive two paid 15-minute periods and an unpaid meal break of at least one half hour for each 8-hour shift. . . .” (Declaration of Molly A. Desario in Support of Motion for Class Certification, Ex. 7, § 5.5.) As Defendant points out, however, this language does not state employees are only entitled to meal breaks if they work an eight-hour shift. In addition, Defendant provides evidence the Work Schedules and Attendance Policy that was linked to the handbook on the Intranet provided that non-exempt employees who work more than five hours are entitled to a meal period of no less than 30 minutes that must start before the end of the fifth hour of work. (Declaration of Geneva A. Collins in Support of Stanford Health Care’s Opposition to Plaintiff’s Renewed Motion for Class Certification (“Collins Decl.”), Ex. C.) Similar language is also set forth in a more recent version of the handbook. (See Supplemental Declaration of Marie Diaz-Sidbury, Ex. 1, § 5.5.) This evidence shows Defendant did not have a uniform policy of only authorizing meal breaks for eight-hour shifts.

Consistent with Defendant’s evidence, Diaz-Sidbury, the class representative, testified at deposition that she understood meal periods must start no later than the end of the fifth hour of work. (Collins Decl., Ex. B (Deposition of Marie Diaz-Sidbury, Vol. II), p. 246:11-15.) She also testified at deposition that she understood employees could request a meal break penalty using an MBPR (meal break penalty request) code. (See id. at pp. 255:22-256:6, 258:25-259:5.)

The evidence thus demonstrates Defendant did not have a uniform policy of not paying for missed or late meal breaks unless an employee worked an eight-hour shift. The Court agrees with Defendant that the language in the older version of the handbook does not state employees are only entitled to meal breaks if they work an eight-hour shift, and the Court agrees the handbook language should be read in conjunction with the Work Schedules and Attendance Policy, which accurately sets forth the proper requirements.

In the absence of a common policy that is inconsistent with California law, it would be necessary to look at each class member’s understanding of the language in the handbook as well as the reasons why a class member may or may not have taken a break on a particular day and why a class member may or may not have submitted a request with the MBPR code. These are necessarily individual determinations. (See Lampe v. Queen of the Valley Medical Center (2018) 19 Cal.App.5th 832, 851 [“To determine why each employee did not take their first meal break after five hours would require an individualized determination and review of individual employee files and pay stubs.”].) As stated in Lampe, “The question of whether a missed meal break was due to the employer’s failure to allow it or from the employee’s voluntary choice not to take it requires an individualized inquiry.” (Id. at p. 848.)

Diaz-Sidbury’s testimony also highlights the problem with certifying the second theory of liability – that Defendant violated the UCL by failing to automatically pay penalties for meal breaks that employees were prevented from taking on time or during shifts under eight hours as promised by the policy. As argued by Defendant, a UCL claim can only be brought by someone who has been injured as a result by a person who has lost money or property as a result of the unfair competition. (Bus. & Prof. Code, § 17204.) Diaz-Sidbury testified at deposition that she understood she could submit an MBPR claim. Therefore, she would not have lost money “as a result of” Defendant’s failure to automatically pay penalties for missed or late meal breaks for shifts under eight hours. To the extent other employees did or did not understand that option, individual issues regarding those employees’ understanding would arise.

In sum, the Court finds common questions of law and fact do not predominate over individual issues.

2. Typicality

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 argues Plaintiff’s claims are subject to credibility issues that are unique to her and threaten to become the focus of the litigation. Defendant argues further that Plaintiff’s individual claims for alleged late meal breaks arise out of circumstances unique to her.

Plaintiff’s theories of liability concern the alleged failure of Defendant to pay for missed or late meal breaks and the failure to automatically pay penalties for meal breaks employees were prevented from taking on time or during shifts under eight hours. As discussed in connection with the issue of whether common issues predominate, the evidence shows Plaintiff was aware of Defendant’s policies and the ability of, and need for, Plaintiff to submit an MBPR code. Further, Plaintiff has testified that in the instances when she used paper time cards, those records are not accurate because she always wrote down the time she was scheduled to go to lunch, not the time she actually went, based on her manager’s instructions. (Collins Decl., Ex. B., pp.197:17-199:9.)
These issues raise defenses unique to the class representative. Consequently, the Court finds the typicality requirement has not been met.

3. Adequacy of Representation

“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 argues Plaintiff is not an adequate class representative due to well-documented hostility towards potential class members. Defendant asserts Plaintiff has made antagonistic and racist comments about and has threatened co-workers/class members. While the Court does not condone such behavior, it does not establish Plaintiff’s interests with regard to the claims in this lawsuit are antagonistic to the interests of the class. There is no indication Plaintiff and Plaintiff’s counsel would not act in the best interests of the class as a whole.

The Court finds the adequacy requirement has been satisfied.

IV. CONCLUSION

For the reasons discussed, Plaintiff’s motion for class certification is DENIED.

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