Chavez v. United Security Bank

1 The motion does not seek certification of the meal period claim or the vacation wages claim.

(1) predominant common questions of law or fact; (2) claims typical of the class; and (3) a representative who can adequately protect the class. (Ibid.) Common questions predominate only when liability can be shown through common proof. The existence of a policy is not enough; the policy must permit liability to be determined on a class-wide basis. (Duran v. U.S. Bank National Assn. (2014) 59 Cal.4th 1, 28–29.) A class is ascertainable when it is defined by objective criteria. The definition must supply a reasonable means of identifying members. A class may be ascertainable even if it includes persons who were not injured. (Noel v. Thrifty Payless, Inc. (2019) 7 Cal.5th 955, 980–986.) The moving party must also show that a class action is superior to other methods of adjudication.

III. Timeliness Defendant contends the motion is untimely because it was served one day after the September 24, 2025 deadline. (Opposition, p. 3.) Plaintiff’s reply that the motion was filed on the deadline and served one day later, with no prejudice to Defendant. (Reply, p. 2.) Here the papers were not filed late, and even if they had been, the Court has discretion to consider or to disregard late-filed papers, so long as it does not do so arbitrarily. (Cal. Rules of Court, rule 3.1300(d); Kapitanski v. Von’s Grocery Co. (1983) 146 Cal.App.3d 29, 32–33.) The Court OVERRULES Defendant’s timeliness objection because defendant has not shown any prejudice and has filed a detailed opposition on the merits.

IV. The Proposed Classes Plaintiff seeks certification of five classes:

1. Off-the-Clock Class: all non-exempt, hourly employees who clocked an opening or closing shift, from September 10, 2017 through final judgment.

2. On-Premises Rest Break Class: all non-exempt, hourly employees who worked a shift in excess of three and one-half hours, from September 10, 2017 through final judgment.

3. Regular Rate Class: all non-exempt employees who were not paid a meal or rest premium, or overtime, at the correct regular rate of pay, from September 10, 2018 through certification.

4. Late Final Pay Class: all non-exempt, hourly individuals who separated from employment on or after September 10, 2018.

5. Wage Statement Class: all non-exempt, hourly individuals who did not receive compliant wage statements, from September 10, 2020 through final judgment.

V.

Analysis

A. On-Premises Rest Break Class This class consists of non-exempt hourly employees who worked shifts longer than three and one-half hours. The claim is that Defendant required employees to remain on the premises during rest breaks and also required employees who left the premises to clock out and they were not paid. (Memorandum, pp. 4–6; Reply, pp. 3–4; Augustus v. ABM Security Services, Inc. (2016) 2 Cal.5th 257.) Plaintiff does not meet her burden on the record before the Court. (See Opposition, pp. 8–9; 12–13.)

The handbook provision on which Plaintiff relies appears in the section governing attendance and punctuality. Defendant’s rest and recovery policy treats rest periods as paid time. The person most knowledgeable testified that employees should clock out when they leave the building. The person most knowledgeable also testified that employees are not required to clock out for rest breaks. Defendant’s time records show that breaks for which employees clocked out were paid. The record does not establish a uniform policy requiring onpremises rest breaks or a uniform practice that caused rest breaks to go unpaid.

Whether a noncompliant break occurred would depend on the circumstances of each shift. Plaintiff’s declaration states that she remained on the premises during her rest breaks, and she testified at her deposition that she did not take rest breaks. Plaintiff’s deposition testimony contradicts her declaration, and this contradiction threatens to dominate the litigation. Therefore, Plaintiff’s claim is subject to individualized defenses and is not typical of the class. (Seastrom v. Neways, Inc. (2007) 149 Cal.App.4th 1496, 1502.)

Common questions do not predominate on this record, and the representative is not typical of the proposed class. Even so, it is possible that these defects can be cured through amendment, intervention, or substitution of class representative. (See, e.g., La Sala v. American

Sav. & Loan Assn. (1971) 5 Cal.3d 864; Branick v. Downey Savings & Loan Assn. (2006) 39 Cal.4th 235.) Accordingly, the motion for class certification of the On-Premises Rest Break Class is denied without prejudice.

B. Off-the-Clock Class This class consists of non-exempt hourly employees who clocked an opening or closing shift. The claim is that employees performed compensable security and waiting tasks off the clock. (Memorandum, pp. 6–7; Reply, pp. 4–5; Frlekin v. Apple, Inc. (2020) 8 Cal.5th 1038; Troester v. Starbucks Corp. (2018) 5 Cal.5th 829.) Plaintiff does not meet her burden on the record before the Court. (See Opposition, pp. 9–13.) The person most knowledgeable testified that non-exempt employees do not open or close branches.

The class is defined by opening and closing shifts worked by non-exempt employees. The expert treated each time punch outside public branch hours as off-the-clock work. A punch entered before the branch opens reflects recorded, on-the-clock time. Plaintiff was scheduled to begin work before the branch opened. The waiting time described in the claim is not recorded. Unrecorded time does not appear in the punch data. The expert’s analysis does not measure the time at issue. The declarants worked at three of Defendant’s thirteen branches.

The declarants stopped working for Defendant by 2021. The class period extends beyond that date. A branch manager declared that non-exempt employees complete closing tasks on the clock. The same manager declared that non-exempt employees do not wait for managers to finish closing. Liability would turn on the circumstances of each employee and each branch. Common questions do not predominate, and Plaintiff’s claims are not typical. Accordingly, the motion for class certification of the Off-the-Clock Class is denied without prejudice.

C. Regular Rate Class

This class consists of non-exempt employees who were not paid premiums or overtime at the correct regular rate. The claim is that Defendant excluded non-discretionary incentive payments from the regular rate. (Memorandum, pp. 7–8; Reply, pp. 8–9; Ferra v. Loews Hollywood Hotel, LLC (2021) 11 Cal.5th 858.) Plaintiff does not meet her burden on the record before the Court. (Opposition, p. 11.) A payment enters the regular rate only if it is non-discretionary. The record does not establish that the incentive payments were non-discretionary.

The expert could not calculate any underpayment for the incentive payments. The earning periods and hours for those payments were not available. The record does not state the number of employees who received incentive payments together with overtime. Numerosity is not established. Plaintiff has not established numerosity or that liability can be shown through common evidence. Accordingly, the motion for class certification of the Regular Rate Class is denied without prejudice.

D. Late Final Pay Class This class consists of non-exempt hourly employees who separated from employment on or after September 10, 2018. The claim for waiting time penalties depends on an underlying failure to pay wages. (Lab. Code, § 203; Memorandum, p. 8.) Plaintiff does not meet her burden on the record before the Court. (Opposition, pp. 6:1- 10, 7:10-13.) The underlying classes are not certified. No predicate violation is established through common proof. The class includes every separated employee. The class is not limited to employees who were paid late or to employees who were owed wages. In addition, numerosity is not established. Accordingly, the motion for class certification of the Late Final Pay Class is denied without prejudice.

E. Wage Statement Class

This class consists of non-exempt hourly employees who received non-compliant wage statements on or after September 10, 2020. The claim depends on the underlying wage claims. (Lab. Code, § 226; Memorandum, pp. 8:6-12, 15–16.) Plaintiff does not meet her burden on the record before the Court. (Opposition, pp. 11– 12.) The class period begins September 10, 2020. Plaintiff’s employment ended in March 2020. Plaintiff is not a member of this class. A class representative must be a member of the class she seeks to represent; the representative must personally hold a live, timely claim of the same type of the class. (City of San Jose v.

Superior Court (1974) 12 Cal.3d 447.) While typicality is construed more broadly, the rule that the plaintiff need not have suffered every injury (Class v. Weller (1983) 145 Cal.App.3d 27, 45), that rule presupposes that the plaintiff is within the class and has a viable claim. Here, the underlying claims are not certified, and Plaintiff is not a typical or adequate representative of this class. In addition, numerosity is not established. Accordingly, the motion for class certification of the Wage Statement Class is denied without prejudice.

VI.

Conclusion

The Court DENIES the motion for class certification in its entirety, without prejudice. Defendant shall prepare the order in accordance with California Rules of Court, rule 3.1312.

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