Hernandez v. Overhill Farms

 

 

 

 

 

 

 

 

 

Filed 11/6/13  Hernandez v. Overhill Farms CA2/4

 

 

 

 

 

 

NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS

 

 

 

 

California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b).  This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.

 

 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

 

SECOND APPELLATE DISTRICT

 

DIVISION FOUR

 

 

 

 

 

 
>

ISELA HERNANDEZ et al.,               Plaintiffs and Appellants,               v.   OVERHILL FARMS, INC.,               Defendant and Respondent.

B243844         (Los Angeles County       Super. Ct. No. BC416954)

 

 

 

            APPEAL
from an order of the Superior
Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, David L. Minning, Judge. 
Affirmed.

            The
Myers Law Group, David P. Myers, Ann Hendrix, Vanessa Godinez-Elisarraraz;
Righetti Law Firm, Matthew Righetti, John Glugoski, and Michael Righetti for
Plaintiffs and Appellants.

            Rutan
& Tucker, Mark J. Payne, and Brandon L. Sylvia for Defendant and
Respondent.




INTRODUCTION

 

            Plaintiffs
are former employees of Overhill Farms, Inc. (Overhill), a company that manufactures
frozen food products for sale to distributors and wholesalers.  Plaintiffs asserted wage and hour claims
against Overhill on behalf of a purported class made up of Overhill’s nonexempt
(hourly) employees who worked in identified departments between July 1, 2005,
and the present. 

            The
trial court denied plaintiffs’ motion for class certification, concluding that the
named plaintiffs were not adequate class representatives and individual issues
predominated over common ones. 
Plaintiffs appeal, contending that the trial court applied incorrect href="http://www.fearnotlaw.com/">legal standards and substantial evidence
did not support its conclusions.

            Our
review of a denial of a motion for class certification is limited—we must
affirm an order supported by substantial evidence unless the trial court used
improper criteria or made erroneous legal assumptions.  Further, we defer to the trial court’s
credibility determinations.  Because we
find that, in light of the trial court’s credibility determinations,
substantial evidence supported the trial court’s conclusion that individual
issues predominated over common ones, we affirm. 

 

>PROCEDURAL BACKGROUND

> 

I.          Complaint

            On
July 1, 2009, Bohemia Agustiana, Isela Hernandez, and Ana Munoz filed the
present class action complaint against Overhill.  The complaint alleged various labor law
violations on behalf of plaintiffs and a class of persons employed by Overhill
as hourly workers. 

            On
October 31, 2011, Agustiana was dismissed from the action.  Plaintiffs sought leave to add new named plaintiffs,
and on November 28, 2011, they substituted Guadalupe Baez, Anastacio Mendez
Trinidad, Zulema Sanchez, and Maria Gonzalez in place of Bohemia Augustiana and
Ana Munoz. 

            Plaintiffs
filed the operative second amended class action complaint on December 21,
2011.  It alleged that plaintiffs and
other members of the proposed class were current and former employees employed
in hourly positions at Overhill in the following areas:  production, assembly, shipping/receiving,
packing, sanitation, quality control and cooking.  Plaintiffs typically were scheduled to work
eight hours each day.  Defendant required
plaintiffs to wear protective gear that included a hairnet, coat, and gloves,
and to wash their hands for at least 20 seconds before starting work.  Defendant required plaintiffs to don
protective gear and wash their hands prior to the beginning of their shifts and
after meal breaks, but it did not pay them for this time.  Defendant also had a practice of rounding
time worked at the beginning and end of each shift to its own advantage.  Finally, during equipment breakdowns, which
occurred regularly, plaintiffs were required to remain in the plant under
defendant’s control, but they were not paid for so-called “waiting time.”  The second amended complaint asserted four
causes of action arising out of these common factual allegations:  failure to pay minimum wage for all hours
worked (first cause of action); failure to provide itemized wage statements, as
required by Labor Code section 226href="#_ftn1"
name="_ftnref1" title="">[1]
(second cause of action); waiting time penalties (§§ 201-203) (third cause
of action); and unfair business practices
(Bus. & Prof. Code, § 17200 et seq.) (fourth cause of action). 

 

>II.        Motion
for Class Certification

            On March 21, 2012, plaintiffs moved
to certify a class defined as follows:

            “All
non-exempt current and former employees of Overhill Farms in California, who
work in the following areas:  Production,
Assembly, Shipping/Receiving, Packing, Sanitation, Quality Control and Cooking
in the State of California at any time since July 1, 2005.

            “All
nonexempt former employees of Overhill Farms in California, who work in the
following areas:  Production, Assembly,
Shipping/Receiving, Packing, Sanitation, Quality Control and Cooking in the
State of California at any time since July 1, 2005 to the present for waiting
time penalties pursuant to Labor Code Section 203.” 

            On
April 18, 2012, the court stated that the class was ascertainable and numerous,
class representatives Hernandez, Mendez, Sanchez, Baez, and Gonzalez were
typical of the class, and proposed class counsel was qualified to conduct the
proposed litigation.  However, the court
said that the proposed class representatives could not adequately represent the
proposed class because some proposed class representatives were subject to agreements
that required their employment disputes be resolved through binding arbitration,
and none of the proposed class representatives demonstrated that they
understood the obligations a class representative owes the class members.  Further, the court said, none of the proposed
class representatives was adequate because each provided Overhill with an
invalid Social Security number when applying for his or her job.  This casts strong doubts on their credibility
and honesty.  “The credibility of a named
plaintiff is relevant to their adequacy as class representative.  [Citation.] 
The fact that Named Plaintiffs used invalid [S]ocial [S]ecurity numbers
when applying for their jobs, and did not correct those numbers when provided
the opportunity, does raise doubts about their credibility.  Whether those doubts are significant enough
to find Named Plaintiffs inadequate to represent the class, however, is a
difficult question.  In >Jaimez [v. Daiohs USA, Inc. (2010) 181 Cal.App.4th 1286,] the proposed
class representative was found inadequate because he:  â€˜[l]ied on his . . . employment
application about his felony conviction and incarceration, he admitted his view
that it is acceptable to lie in order to obtain or maintain employment,
questions surrounded his purported falsification of time records and other
documents (notably, manifests), and his declaration may be contradicted by his
deposition testimony.’  >Id. at 1296.  The falsification of [S]ocial [S]ecurity
numbers in this case raises similar credibility issues as in >Jaimez, especially since named
Plaintiffs had the opportunity to correct the information and did not do
so.  Based on these credibility issues,
named Plaintiffs are arguably not adequate to represent the class members. . . .”  (Fn. and internal record references
omitted.) 

            The
court also questioned the predominance of common issues and continued the
motion for further briefing “regarding substitute named Plaintiffs and whether
common questions predominate.”  >

            Following
supplemental briefing, the court denied the motion for class certification on August
6, 2012.  With regard the adequacy of
proposed class representatives, the court repeated the analysis of its April 18
tentative, and added as follows:

            “Plaintiffs
point to a number of cases in support of their contention that classes have
been certified regardless of the named plaintiffs’ immigration status.  In Ansoumana
v. Gristede’s Operating Corp., the district court ruled that the defendant’s
‘concerns regarding the immigration status of the various named Plaintiffs as
bearing on their potential credibility and fitness as class representatives
[were] without merit.’  (SDNY 2001) 201 F.R.D.
81, 88.  Those concerns are not discussed
in the opinion, however, so it is difficult to analogize the facts of that case
to this one.  On the other hand, it does
demonstrate that cases have been certified where the immigrant status of the
named plaintiff was used to challenge their adequacy and credibility.  In Leyva
v. Buley, the district court found the defendant’s allegations of
‘improprieties and/or possible illegal activities’ by the named plaintiff were
‘not substantiated with documentation.’  (ED
Wash.) 125 F.R.D. 512, 516-517.  This
differs from this case, where the evidence of Plaintiffs’ use of incorrect [S]ocial
[S]ecurity numbers is credible and specific.

            “These
cases, therefore[,] do not provide sufficient authority to require the Court to
ignore the facts in this case.  The facts
here are that Named Plaintiffs twice lied to their employer with respect to
their [S]ocial [S]ecurity numbers.  This
is a serious charge against their credibility and raises serious doubts that
they should stand in a position of fiduciary responsibility to the class
members.  Therefore, Hernandez, Mendez,
Sanchez, Baez and Gonzalez are not adequate Class Representatives.  However, they should be provided an
opportunity to locate new class representatives if one of the class claims is
suitable for certification.” 

            For
reasons discussed in detail below, the court also found that common questions
did not predominate because each of the issues raised by the plaintiffs required
individualized inquiries.  Finally, the
court concluded that the plaintiffs had not demonstrated that a class action
was a superior means of resolving the litigation:  “The parties’ evidence demonstrates that this
class does not meet certain requirements for certification, including adequacy
of class representative and commonality. 
The lack of commonality for the claims raised on behalf of the class
means the Court will have to conduct an individual inquiry into each class
members’ claim for unpaid wages and missed meal breaks.  Consolidation of numerous individual
inquiries into a single action is not desirable.  Therefore, superiority is not
satisfied.” 

            The
order denying class certification was entered August 6, 2012, and notice of
entry was served August 13, 2012. 
Plaintiffs timely appealed. 

 

DISCUSSION

 

            Plaintiffs
contend that the trial court erred in concluding that individual questions
predominated with regard to their claims that Overhill (1) required employees
to perform unpaid pre- and post-shift work, including “donning and doffing”
protective gear, (2) illegally rounded employees’ shift times, (3) failed
to pay employees during equipment breakdowns, and (4) limited employees meal
breaks to 25 minutes, rather than the 30 minutes required by law.  Plaintiffs further contend that the trial
court committed reversible error when it (5) concluded that all named
appellants were inadequate class representatives.  

            For
the reasons that follow, we conclude that substantial evidence supported the
trial court’s conclusion that individual questions predominated over common
ones with regard to each of the plaintiffs’ four theories of recovery.  Because the proposed class therefore is not
subject to certification, we do not reach plaintiffs’ contentions regarding the
adequacy of proposed class representatives.

 

I.          Applicable Legal
Principles and Standard of Review

            “‘Code
of Civil Procedure section 382 authorizes class actions “when the question is
one of a common or general interest, of many persons, or when the parties are
numerous, and it is impracticable to bring them all before the court . . . .”  The party seeking certification has the
burden of establishing the existence of both an ascertainable class and a
well-defined community of interest among class members . . .’ (>Sav-On Drug Stores, Inc. v. Superior Court
(2004) 34 Cal.4th 319, 326 [Sav-On])
and ‘substantial benefits from certification that render proceeding as a class
superior to the alternatives.’  (>Brinker Restaurant Corp. v. Superior Court
(2012) 53 Cal.4th 1004, 1021 . . . .)”  (Hendleman
v. Los Altos Apartments, L.P. (2013) 218 Cal.App.4th 1380, 1389-1390 (>Hendleman).)  The “community of interest” requirement
embodies three factors:  (1) predominant
common questions of law or fact; (2) class representatives with claims or
defenses typical of the class; and (3) class representatives who can adequately
represent the class.  (>Sav-On, supra, 34 Cal.4th at p. 326.)

            “The
certification question is ‘essentially a procedural one that does not ask
whether an action is legally or factually meritorious.’  (Linder
v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 439-440 (Linder).)  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.’  (>Collins v. Rocha (1972) 7 Cal.3d 232,
238; accord, Lockheed [Martin Corp. v.
Superior Court (2003)] 29 Cal.4th [1096,] 1104-1105.)”  (Sav-On,
supra, 34 Cal.4th at p. 326.)

            “As
‘“trial courts are ideally situated to evaluate the efficiencies and
practicalities of permitting group action, they are afforded great discretion
in granting or denying certification.”’ 
(Sav-On Drug Stores, Inc. v.
Superior Court, supra, 34 Cal.4th
at p. 326.)  Accordingly, ‘in the absence
of other error, a trial court ruling supported by substantial evidence
generally will not be disturbed “unless (1) improper criteria were used
[citation]; or (2) erroneous legal assumptions were made [citation]”
[citation].  Under this standard, an
order based upon improper criteria or incorrect assumptions calls for reversal
“‘even though there may be substantial evidence to support the court’s
order.’”  [Citations.]  Accordingly, we must examine the trial
court’s reasons for denying class certification’ (Linder[, supra,] 23
Cal.4th [at pp.] 435-436) and ‘ignore any unexpressed grounds that might
support denial.’  (Kaldenbach v. Mutual of Omaha Life Ins. Co. (2009) 178 Cal.App.4th
830, 844.)  ‘We may not reverse, however,
simply because some of the court’s
reasoning was faulty, so long as any
of the stated reasons are sufficient to justify the order.  [Citation.]’ 
(Ibid.)”  (Hendleman,
supra, 218 Cal.App.4th at p. 1390.)

 

II.        Unpaid Pre- and Post-shift
Work (“Donning and Doffing” Claim)

            It
is undisputed that time spent “donning and doffing” protective gear is
compensable.  (IBP, Inc. v. Alvarez (2005) 546 U.S. 21, 30 [“[A]ctivities, such as
the donning and doffing of specialized protective gear, that are ‘performed
either before or after the regular work shift, on or off the production line,
are compensable under the portal-to-portal provisions of the Fair Labor Standards
Act if those activities are an integral and indispensable part of the principal
activities for which covered workmen are employed and are not specifically
excluded by Section 4(a)(1).’”].)  At
issue here is whether the trial court erred in concluding that common claims
did not predominate with regard to plaintiffs’ allegation that Overhill
required them to “don” and “doff” protective gear off-the-clock.  For the reasons that follow, we conclude that
the trial court did not err.

 

            >A.         Plaintiffs’
Evidence

            Plaintiffs’
declarations stated that Overhill employees were required to clock in five to
seven minutes prior to the start of their shifts to perform work for which they
were not compensated.  Isela Hernandez’s
declaration is illustrative:

            “2.       I worked for Overhill Farms from January
2000 until May, 2009.  During my
employment I first worked as a production worker, and my last position was in quality
control.

            “3.       I normally worked in Plant 1 during my
employment, but I worked in Plant 2 a couple of times.  I was usually scheduled to start work at 4:30
p.m. and my end time varied, often ending at 2:00 or 3:00 a.m.  My pay was $10.65 per hour.  The requirements for clocking in and what to
do immediately after clocking in were identical in both plants except in Plant
2, the time clock is [out]side the building and in Plant 1, the time clock is
inside the building.

            “4.       Overhill Farms required me to clock in 5
to 7 minutes before my shift started, and I was not allowed to clock in earlier
than that.  I was verbally reprimanded if
I clocked in later than 5 minutes before my scheduled shift start time.  I was disciplined if I clocked in later than
my scheduled start time.

            “5.       After I arrived at work, I was required
to perform the following tasks:

            “6.       I got a hairnet from outside the entrance
and put it on, and fixed it in the bathroom at the mirror because I was
required to have no hair sticking out.

            “7.       I got a coat and put it on.

            “8.       I went upstairs to the Quality Control
room and filled out paper work.

            “9.       The company required us to wash our hands
for 20 seconds, which I did.

            “10.     I put on gloves.

            “11.     When I became a quality control worker, I
worked closely with production workers. 
There was no change to the routine that production workers were required
to perform when they arrived for work from the routine I was required to
perform as a production worker.

            “12.     Overhill Farms required the production
workers to punch in 5 to 7 minutes before their scheduled shift time, and they
were not allowed to clock in earlier than that. 
They were disciplined if they clocked in later than their scheduled
shift start time and their time was docked 15 minutes.  For example, if their scheduled start time
was 5:00 pm and they tried to clock in at 5:02, they would be docked 15
minutes of pay.

            “13.     The production workers were required to
perform the following tasks before their scheduled shift time:

            “14.     They got hairnets from outside the entrance
and if needed, they fixed it in the bathroom at the mirror because they were
required to have no hair sticking out.

            “15.     The company required them to wash their
hands for 20 seconds, which they did. 

            “16.     They put on their coats.

            “17.     They put on gloves, which were cloth if
handling cold items.” 

            Guadalupe
Baez (production, 2000-2009), Maria Gonzalez (production, 1983-2007), Maria
Zulema Sanchez (production, 1999-2009), Anastacio Mendez Trinidad (production,
2006-2007; sanitation, 2007-2009), Maria Magdalena (assembly, 2001-2007;
assistant to lead worker, 2007-2009), Juana Vasquez (packaging, 2006-2009), and
Maria Vasquez (production and assembly, 2002-2009) submitted similar
declarations. 

            Plaintiffs
also submitted portions of the transcript of the deposition of Yolanda Diaz, Overhill’s
vice president of human resources, who testified that employees were expected
to be in their workrooms at the start of their shifts, and were expected to put
on hairnets and earplugs and to wash their hands before arriving at their
workrooms.  They further introduced an
Overhill memorandum, dated March 8, 2005, regarding “Punch In/Out Times.”  The memo stated:  “Please be advised that according to Federal
Regulation 29 CFR Sec. 785.48, since we calculate your pay every quarter hour,
you may not punch in any earlier than 7 minutes before your scheduled starting
time, or any later than 7 minutes after your scheduled hour to leave.  For example, if you start at 6:00 a.m. you
may punch in from 5:53 to 6:00.  If you
leave at 2:30 p.m. you may punch out from 2:30 to 2:37.  Also please remember that company policy
requires you to be at your work station at your starting time.  Failure to follow these guidelines will
result in disciplinary action, which could include dismissal.” 

            Finally,
plaintiffs submitted employee timecards, which demonstrated that many employees
clocked in before the beginning of their shifts and clocked out after the end
of their shifts.href="#_ftn2" name="_ftnref2"
title="">[2] 

 

>            B.         Overhill’s Evidence

            In
opposition to class certification, Overhill introduced several declarations, as
follows.

            Yolanda
Diaz declared that since at least July 1, 2005 (the beginning of the class
period), Overhill “has not had any written or unwritten policy requiring that employees
punch in or perform any work prior to their scheduled start time, and it has
had no policy requiring them to perform any sort of preparatory activities
before their scheduled start time.  To
the contrary, the CBA [Collective Bargaining Agreement] throughout this time
period has always required Overhill to allow employees to clock in at the
scheduled starting time if they arrive for work on time.  Specifically, Section ‘F’ of Article XI of
the CBA . . . provides, ‘Employees who arrive for work on time will
be allowed to clock in at the scheduled starting time and will be paid for all
waiting time from the scheduled starting time until commencing work.’  The employees have been represented by Local
770 throughout this time period, and although employees have filed complaints
and grievances about numerous other issues, neither the Union nor any employee
has ever filed any grievance about Overhill’s compliance with this provision of
the CBA.

            “10.     In addition, Section ‘C’ of Article XII of
the 2005-2008 CBA explicitly provides for payment of work before the scheduled
start time.  The provision was also in
effect during the 2008-2011 CBA (Art XII (E)). 
Employee punch details reflect early call in pay and the employees are
well aware of this provision.  If they
had been ‘working’ prior to their scheduled start time, they would have
demanded (and received) early call in pay. 

            “11.     Plaintiffs have indicated that a March 8,
2005 memorandum is evidence of a general rounding policy at Overhill.  Prior to its production in this lawsuit by
one of the named plaintiffs, I had never seen this memo before.  I am not aware of its ever having been
distributed to employees, it is not posted anywhere that I know of, and it has
not been distributed to any employees that I know of.  In any event, the memo, which pre-dates the
class period in this case, specifically instructs employees that they can clock
in at their scheduled start time.  The
memo does not require early punch in, and it does not require any work prior to
the scheduled start time.

            “.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . .

            “13.     Overhill has no policy requiring employees
to perform any work off-the-clock. 
Overhill also has no policy requiring employees to perform any work,
including putting on any clothing or other equipment, prior to their scheduled
starting time.” 

            Jose
Menendez, Overhill’s quality control supervisor from 2005 to 2011, declared
that he “considered someone ‘on time’ as long as they were clocked in at their
scheduled start time.  I never required
any [Quality Control (QC)] employee to report to work before their assigned
start time, and I am not aware of any policy that would require that. . . .
 [¶]  . . . Some QC employees would arrive
before their start time, while others would arrive at work immediately before
their start time.  Those that came to
work earlier than necessary did so out of personal preference.  For example, some QC employees would ride the
bus, and the bus schedule would have them dropped off earlier than their assigned
start time.  Other employees would
carpool together, which often resulted in employees arriving early.  If, for example, one technician was assigned
an earlier start time than the others, the others would simply wait around in
the break room for their scheduled start time. 
And, particularly at Plant 2 (which has fewer employee parking spots
than Plant 1), some employees arrived early to work to make sure that they got
good parking spots.  Employees who
arrived early would often sit outside and chat with a friend, or sit in the break
room and have coffee.  I never saw an
employee arrive early for work and then begin working prior to their scheduled
start time.  The only exception to this
is that, on rare occasions, I would ask for volunteers to switch to an earlier
shift with an employee who called in sick, or who had car trouble.  If anyone volunteered to switch shifts, they
would clock in prior to beginning work, and would be paid for the time after
they clocked in.” 

            Julieta
Perez declared:  “In the past, we were
free to clock in before the scheduled start time, but we were not expected to
arrive or clock in until the scheduled start time, though I generally would
clock in a few minutes before the scheduled start time.  I did this simply because I was already at
work because I take the bus, and preferred to get ready a few minutes early so
that I could get a preferred assigned station on the packing line.  The positions were assigned on a first come,
first served basis, so if I was a few minutes early I was more likely to get the
packing of food in boxes as opposed to having to work near the freezer.  I also did not like to feel rushed and
preferred to do these activities a few minutes earlier than necessary.  Some employees were like me and liked to get
to work a few minutes early, but other employees preferred to arrive right at
the scheduled start time.  It was a
matter of personal preference.” 

            Teodoro
Garcia declared that he has worked for Overhill since 2008, either as a packer
or on the line.  He stated:  “I always clock in at the exact time in order
to start working.  I was never asked or
expected to perform any work prior to the scheduled start time for my assigned
shift, and I never performed any work before clocking in. . . .  [¶] 
. . . I always clock in [in] order to start working exactly at
2:30.  The company does not expect me to
clock in earlier.  [¶]  . . .  [¶] 
. . .  At the end of the
shift, we stop the assembly line for about 2 or 3 minutes so that everyone can
finish.  Once the line finishes, then we
are done.  Then at the packing area, the
day ends when the last product comes on the line and the person for the next
shift arrives to replace us.  Once that
person arrives then we go.  Then I take
off my gloves and then my smock before clocking out.”  Dolores Martinez, Beatriz Martinez, and Nestora
Cabada submitted similar declarations. 

 

            C.        Trial Court’s Findings

            In
its June 26, 2012 ruling denying class certification, the court said as follows
with regard to plaintiffs’ “donning and doffing” claim: 

            “The
evidence that class members are required to be at their work station ready to
work at the start of their shift is contradictory.  Plaintiffs point to a memorandum on punching
in and punching out, issued on March 8, 2005, which states that employees are
to be at their work station at the start of their shift.  It is unclear whether this memorandum was
distributed classwide.  They also point
to their declarations, as well as the declarations of three other class members
who all state identically that they were required to clock in five to seven
minutes before their shifts started. 
Finally, they point to the deposition testimony of Ms. Diaz, who stated
that the company expects the workers to be in their assigned workroom at the
start of their shift.  Of this evidence,
the Named Plaintiffs’ and class members’ declarations lack credibility insofar
as the declarations are all identical and boilerplate in nature.  The declarations do not provide any specific
details, such as who told the class members to clock in early or that they
would be disciplined for clocking in late.

            “Moreover,
other class members testified that they clocked in exactly when their shift was
scheduled to start.  Beatriz Martinez
testified that her scheduled start time has been 7:30 am for the past two years
and that she clocks in exactly at 7:30 am.  She also testified that after clocking in she
puts on her protective gear, washes her hands, and then goes to her line.  She further testified that the other assembly
line workers that punch in at the same time as her also clock in at exactly
7:30 am.  This has been the practice for
the eight years she has worked for Defendant. 
Class member Teodoro Garcia testified that he and the persons he work[s]
with also clock in right at the start of their shift, and that this was the
company’s policy.  This is also confirmed
by class member Dolores Martinez, who worked for Defendant as a lead
person.  Ms. Martinez specifically testified
that she had never heard of a practice whereby the class members clock in before
the start of their shift.

            “In
reply, Plaintiffs provide the deposition testimony of some class members who
state that they were disciplined for clocking in at the scheduled start of
their shift because that was considered ‘late.’ 
However, this does not bolster Plaintiffs’ argument of commonality as it
does not disprove the testimony of class members who clocked in exactly at
their scheduled start time.  The reply
deposition testimony, therefore, highlights that different class members had
different experiences when they clocked in at the start of their scheduled
shift.  Some class members were evidently
disciplined while others were not.  This
weighs against a finding of a classwide policy requiring class members to clock
in prior to their scheduled start time.

            “Plaintiffs’
other evidence that there was a classwide and uniform practice that class
members were required to clock in five to seven minutes before the start of
their shift in order to don protective gear and washing their hands is also not
persuasive.  The class members’
declarations lack credibility, as noted above. 
While it appears that Defendant had an expectation that the class
members would be at their assigned workroom at the start of their shift, Ms.
Diaz’s testimony does not indicate that this expectation was ever communicated
or enforced as to all class members. 
Therefore, Plaintiffs have not provided substantial evidence of a
uniform and classwide practice requiring class members to be at their place in
the work line at the exact start of their scheduled shift or exactly 30 minutes
after the start of their meal break.”  (Internal
record references omitted.) 

           

            D.        Analysis

            Plaintiffs
contend that the trial court erred in concluding that common issues did not
predominate with regard to plaintiffs’ “donning and doffing” claim.  Although their contention is not entirely
clear, plaintiffs appear to suggest that the evidence is undisputed that many employees
clocked in prior to the scheduled start of their shifts and performed work for
which they were not compensated. 
Further, plaintiffs urge that the trial court improperly reached the
merits of the case, which it was not permitted to do at the class certification
stage. 

            We
note as an initial matter that our inquiry on appeal is not whether plaintiffs’
evidence may have been sufficient to support class certification, but rather
whether the record contains substantial evidence supporting the trial court’s
conclusion that individual facts are more numerous and significant than common
issues.  (Dailey v. Sears, Roebuck & Co. (2013) 214 Cal.App.4th 974, 992
(Dailey).)  Further, in considering the substantiality of
the evidence, we must defer to the trial court’s credibility
determinations:  “[I]f the parties’
evidence is conflicting on the issue of whether common or individual questions
predominate (as it often is and as it was here), the trial court is permitted
to credit one party’s evidence over the other’s in determining whether the
requirements for class certification have been met.”  (Id.
at p. 991.) 

            In
the present case, the trial court had before it plaintiffs’ testimony that
Overhill employees were required to clock in before the start of their
shifts.  Had the trial court accepted
this evidence, class certification of the “donning and doffing” issue would
have been proper.  The court accorded
little weight to these declarations, however, concluding they lacked
credibility.  This credibility
determination was well within the trial court’s broad discretion in reviewing a
class certification motion.  (See >Dailey, supra, 214 Cal.App.4th at pp. 991-992; Mora v. Big Lots Stores, Inc. (2011) 194 Cal.App.4th 496, 508-509 (>Mora).)

            The
trial court’s conclusion that common questions did not predominate with regard
to the “donning and doffing” issue was supported by the testimony of numerous
hourly workers (Beatriz Martinez, Teodoro Garcia, Dolores Martinez, Julieta
Perez, and Nestora Cabado) who said that they and their coworkers always
clocked in precisely at the start of their shifts, or that they clocked in a
few minutes early as a matter of personal preference.  These workers also testified that they had
never heard of a policy requiring them to clock in prior to the start of their
shifts, and had never been asked or expected to perform any work prior to the start
of their shifts.  The trial court’s
conclusion also was supported by the testimony of Overhill’s vice president of
human resources, who said Overhill never had a written or unwritten policy
requiring workers to punch in or perform any work, including any preparatory
activities, prior to their scheduled start times.  To the contrary, Overhill’s policy throughout
the class period was that employees who arrived at or prior to their scheduled
start times would be paid from their scheduled start times.  Taken together, this testimony was
substantial evidence in support of the trial court’s conclusion there was no
uniform, company-wide policy requiring all employees to clock in prior to their
scheduled start times—and thus that while some employees may have been required
to clock in early, individual questions concerning such requirements
predominated over common questions.

            Our
conclusion in this regard is similar to that reached by the Court of Appeal in >Dailey, supra, 214 Cal.App.4th 974. 
There, Dailey brought suit individually and on behalf of a proposed
class of similarly situated individuals, alleging that he and other managers
and assistant managers regularly spent more than half their time performing
nonexempt work and worked more than 40 hours per week, for which they were paid
no overtime.  (Id. at p. 981.)  In support
of his motion for class certification, Dailey submitted the declarations of 21
proposed class members, all of whom said they spent 75 to 90 percent of their
time performing nonexempt work.  In opposition,
Sears argued that the tasks of managers and assistant managers varied greatly
from day to day and from store to store. 
(Id. at p. 984.) 

            The
trial court denied the motion for class certification, finding that certification
was inappropriate because individual facts and issues were more numerous and
significant than common issues.  (>Dailey, supra, 214 Cal.App.4th at p. 985.) 
The Court of Appeal affirmed, explaining as follows:

            “Critically,
if the parties’ evidence is conflicting on the issue of whether common or
individual questions predominate (as it often is and as it was here), the trial
court is permitted to credit one party’s evidence over the other’s in
determining whether the requirements for class certification have been met—and
doing so is not, contrary to Dailey’s apparent view, an improper evaluation of
the merits of the case.  (>Sav-On, supra, 34 Cal.4th at pp. 328, 331; see Mora[, supra,]> 194 Cal.App.4th [at pp.] 508-509 . . .
[it is within trial court’s discretion to credit defendant’s evidence
over plaintiff’s].)  For example, the
Supreme Court in Sav-On concluded
that the record in that case contained ‘substantial, if disputed, evidence that deliberate misclassification was
defendant’s policy and practice.  The
record also contain[ed] substantial evidence that, owing in part to operational
standardization . . . , classification based on job descriptions
alone resulted in widespread de facto misclassification.’  (Sav-On,
at p. 329, italics added.)  The court
acknowledged that the defendant disputed the plaintiff’s misclassification
theories and presented its own evidence that those theories could not be proved
on a classwide basis because how class members spent their time varied
significantly from manager to manager.  (>Id. at p. 331.)  â€˜But the
trial court was within its discretion to credit plaintiffs’ evidence on these
points over defendant’s . . . .’  (Ibid.,
italics added.)  The court emphasized
that ‘[t]he trial court was not deciding—nor are we—the merits of plaintiffs’
case.’  (Ibid.)  Rather, it was merely
recognizing that plaintiffs had established they likely could prove with evidence
common to the class that ‘misclassification was the rule rather than the
exception . . . .’  (>Id. at p. 330.)

            “We
see nothing inappropriate in the trial court’s examination of the parties’
substantially conflicting evidence of Sears’s business policies and practices
and the impact those policies and practices had on the proposed class members.  Neither the court’s order nor the class
certification hearing transcript indicates the trial court improperly focused
on the validity of Dailey’s allegations, and Dailey identifies nothing in the
record suggesting otherwise.  We
therefore infer the trial court, as in Sav-On,
weighed the parties’ conflicting evidence for the sole, entirely proper,
purpose of determining whether the record sufficiently supported the existence
of predominant common issues provable with classwide evidence, such that ‘“the
maintenance of a class action would be advantageous to the judicial process and
to the litigants.”’  (>Sav-On, supra, 34 Cal.4th at p. 326.)  In determining the record did not support
class certification, the trial court appears to have credited Sears’s evidence
indicating that highly individualized inquiries would dominate resolution of
the key issues in this case.  Under the
foregoing authorities, it was acting within its discretion in doing so.

            “.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . .

            “Having
established that the trial court was permitted, in its discretion, to credit
Sears’s evidence over Dailey’s in finding a lack of commonality, we must now
consider whether that evidence is substantial, and thus sufficient, to support
the trial court’s ruling.  [Citation.] 
Dailey argues it is not.  We
disagree.

            “Initially,
we observe that in his briefs on appeal, Dailey seems to focus less on whether
Sears’s evidence is substantial than on whether his own evidence satisfies that
standard.  This misconstrues the function
of this court.  Our role on this appeal
is narrowly confined to examining whether the trial court’s ruling is supported
by substantial evidence, and if it is, we may not substitute our own judgment
for that of the trial court.  [Citation.]
 To affirm the certification order, we ‘need
not conclude that [Sears’s] evidence is compelling, or even that the trial
court would have abused its discretion if it had credited [Dailey’s] evidence instead.’
 [Citations.]  ‘[I]t is of no consequence that the trial
court believing other evidence, or drawing other reasonable inferences, might
have reached a contrary conclusion.’ 
[Citation.]  Accordingly, we do
not ask on this appeal whether Dailey’s evidence may have been sufficient to
support class certification, but confine our analysis to whether the record
contains substantial evidence supporting the trial court’s conclusion that ‘individual
facts and issues . . . requiring separate adjudication are more
numerous and significant than the common issues.’

            “As
noted, Dailey’s principal theory of liability is that Sears implemented uniform
policies and practices that resulted in the classwide misclassification of
Managers and Assistant Managers as exempt employees.  Sears presented substantial evidence,
including the declarations and/or deposition testimony of 21 proposed class
members and six corporate managers or other personnel, that the policies and
practices identified by Dailey either do not exist, or if they do, they do not
have the alleged uniform, illegal effect of requiring Managers and Assistant
Managers to engage primarily in nonexempt work.

“. . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . .

“Furthermore,
Sears’s evidence undermines the essential premise of Dailey’s motion for class certification,
namely, that Sears’s liability could be established with common evidence
because Sears’s allegedly uniform business practices had the same impact on
Managers and Assistant Managers classwide.  Based on Sears’s evidence, the trial court
reasonably could infer not only that the proposed class members have flexibility
in applying the allegedly ‘uniform’ policies and practices in their stores, but
also that the day-to-day tasks of Managers and Assistant Managers, rather than
being uniformly dictated by these few policies and practices, vary greatly
depending on a number of factors, ranging from the store's location to particular
management styles and preferences.

            “Whether
the trial court could have properly certified a class based on Dailey’s
conflicting evidence of centralized behavior on the part of Sears toward its
auto center Managers and Assistant Managers, with the resulting classwide
effect of misclassification, is not the inquiry before this court.  In light of Sears’s substantial evidence
disputing the uniform application of its business policies and practices, and
showing a wide variation in proposed class members’ job duties, the trial court
was acting within its discretion in finding that plaintiff’s theory of Sears’s
liability was not susceptible of common proof at trial.  [Citation.]” 
(Dailey, supra, 214 Cal.App.4th at pp. 991-997.)

            For
all of these reasons, we conclude that the trial court did not abuse its
discretion in declining to certify a class with regard to plaintiffs’ “donning
and doffing” claim.

 

>III.       Overhill’s
Rounding Policy

            The
parties agree that rounding of an employee’s time is permitted under California
law if the rounding is a “‘neutral calculation tool for providing full payment
to employees.’”  (Quoting >See’s Candy Shops, Inc. v. Superior Court
(2012) 210 Cal.App.4th 889, 901-902 (See’s
Candy).)  Plaintiffs allege that
Overhill employed a rounding policy throughout the class period that was not
neutral.  Specifically, they assert that
Overhill rounded employee time as follows: 


            ●         Employees were not permitted to clock
in more than seven minutes before the start of their shifts.

            ●         If employees clocked in one to seven
minutes before the start of their shifts, their time was rounded forward to the
start of shift.

            ●         If employees clocked in after the start
of shift, even by one minute, their time was rounded forward to 15 minutes
after the start of shift.

            ●         If employees clocked out one to seven
minutes after the end of shift, their time was rounded backward to the end of
shift.

            ●         Employees were not permitted to clock
out more than seven minutes after the end of shift.

            The
effect of this rounding policy, plaintiffs assert, was to deny them full
payment of their wages because employee time was always rounded forward, never
backward.  Plaintiffs thus contend that
Overhill’s rounding policy violated state law; further, because the policy was
uniformly enforced, it is appropriate for class treatment.

            We
begin by discussing See’s Candy, >supra, 210 Cal.App.4th 889, which
plaintiffs and Overhill agree articulates the legal standard applicable to
claims of rounding.  We then discuss the
evidence offered by the parties in support of and opposition to class
certification, concluding that the trial court did not abuse its discretion in
concluding that common issues did not predominate with respect to this claim.

           

            A.         See’s Candy

            In
See’s Candy, supra, 210 Cal.App.4th 889, the court considered the legality of two
timekeeping policies employed by See’s.  (>Id. at p. 892.)  Under the “nearest-tenth” policy, in and out
punches were rounded up or down to the nearest tenth of an hour, i.e., to the
nearest three-minute mark.  Thus, if an
employee clocked in at 7:58 a.m., the system rounded forward to 8:00 a.m.; if
the employee clocked in at 8:02 a.m., the system rounded back to 8:00 a.m.  Under the “grace period” policy, employees
were permitted to punch in up to 10 minutes before their scheduled start time
and 10 minutes after their scheduled end time. 
Under the company’s rules, employees were not permitted to work during
the grace period, but were expected to use the time for personal
activities.  Because See’s assumed the
employees were not working during the 10-minute grace period, if an employee
punched into the system during the grace period, the employee was paid based on
his or her scheduled start/stop time, rather than the punch time.  (Id.
at pp. 892-893.)

            The
trial court certified a class composed of all See’s hourly employees.  (See’s
Candy, supra, 210 Cal.App.4th at
p. 893.)  Plaintiff then moved for
summary adjudication of See’s affirmative defense that its timekeeping policies
were consistent with state and federal laws. 
The trial court granted summary adjudication for plaintiff, and See’s
filed a petition for writ of mandate.  (>Id. at pp. 894-899.)

            The
Court of Appeal issued the writ.  It
explained that although California employers have long engaged in employee
time-rounding, there is no specific California statute or case law specifically
authorizing or prohibiting the practice. 
However, the California Department of Labor Standards Enforcement
(DLSE), the state agency charged with enforcing California wage and hours laws,
has adopted the following federal regulation:  â€œâ€˜It has been found that in some industries,
particularly where time clocks are used, there has been the practice for many
years of recording the employees’ starting time and stopping time to the
nearest 5 minutes, or to the nearest one-tenth or quarter of an hour.  Presumably, this arrangement averages out so
that the employees are fully compensated for all the time they actually work.  For
enforcement purposes this practice of computing working time will be accepted,
provided that 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.’  (29
C.F.R. § 785.48(b) (2012), italics added.)” 
(See’s Candy, >supra, 210 Cal.App.4th at p. 901.)

            The
court noted that although statements in the DLSE Manual are not binding on the
courts, they may be considered for their persuasive value.  Further, in the absence of controlling or
conflicting California law, California courts generally look to federal
regulations under the FLSA for guidance.  Thus, it said, “[t]he policies underlying the
federal regulation—recognizing that time-rounding is a practical method for
calculating worktime and can be a neutral calculation tool for providing full
payment to employees—apply equally to the employee-protective policies embodied
in California labor law.  Assuming a
rounding-over-time policy is neutral, both facially and as applied, the
practice is proper under California law because its net effect is to permit
employers to efficiently calculate hours worked without imposing any burden on
employees.  (See Gillings v. Time Warner Cable LLC [(C.D.Cal., Mar. 26, 2012, No. CV
10-5565-AG(RNBx))] 2012 WL 1656937 at *5.)” 
(Id. at pp. 901-903.)

            Having
concluded that a rounding policy complies with California law if it is fair and
neutral, the court then considered whether See’s Candy’s rounding policies
complied with this standard.  (>See’s Candy, supra, 210 Cal.App.4th at p. 907.) 
It concluded that the issue could not be resolved on the summary
adjudication record before it.  The court
noted that it was undisputed that California law permitted a grace period (“the
time during which an employee punches in before his or her compensable pay is
triggered”) so long as the employee was
not working or was not otherwise under the employer’s control during that
period.  (Id. at p. 909.)  Accordingly,
an employee’s claim that he or she should have been paid during the grace
period “raises factual questions involving whether the employee was in fact
working and/or whether the employee was under the employer’s control during the
grace period.”  (Ibid.)  Because the plaintiff
had not produced any evidence showing that class members who clocked in during
the grace period were working or were under the employer’s control, the court
held the summary adjudication motion should not have been granted.  (Id.
at pp. 910-914.)

            With
the principles articulated in See’s Candy
in mind, we turn now to the record and contentions of the parties in the
present case.

 

            B.         Plaintiff’s Evidence

            In
support of class certification of the rounding issue, plaintiffs relied on the March
8, 2005 memorandum discussed above.  (See
p. 10, ante.)  They also cited portions of the deposition of
Yolanda Diaz, who testified that if employees clocked in early, the timekeeping
system rounded forward to their scheduled start times.  If employees clocked in late, the timekeeping
system rounded forward to the next quarter hour.  Thus, if an employee scheduled to start work
at 7:00 a.m. clocked in at 6:45, the timekeeping system rounded forward to
7:00; if the same employee clocked in at 7:05, the timekeeping system rounded
forward to 7:15.  An employee who clocked
in after his or her scheduled start of shift “could be sent to the
. . . lunch room.  They could
be permitted to work. . . . 
It would depend on the production schedule, how late they were, how many
employees we needed.”  An employee sent
to the lunch room would be “free to do whatever they’d like to do.” 

            Further,
plaintiffs submitted employee declarations stating that Overhill employees were
required to clock in five to seven minutes before the start of their shifts,
during which time they performed work for which they were not compensated.  They were not allowed to clock in more than
seven minutes early.  Plaintiffs also
said that if they clocked in even one minute after the start of their shifts, their
time was docked up to 15 minutes.  For
example, if their scheduled start time was 5:00 p.m. and they tried to clock in
at 5:02, they would be docked 13 minutes of pay. 

            Plaintiffs’
declarations said that at shift’s end, they were told when to clock out, but “[s]ometimes
I would not be allowed to clock out if the time clock was already past the
halfway mark of the quarter hour (for example, 1:08 p.m.).  Then I had to wait until the quarter hour
(for example, 1:15 p.m.) to clock out. 
If the time clock was earlier than that (for example, 1:06 p.m.), then I
could clock out.  Other times, the human
resources clerical worker would ask the lead worker what end time the
production workers would be paid until on that day.  On those days, we could clock out any time
because the clerical worker would adjust the time to what the lead worker
said.” 

 

>            C.        Overhill’s Evidence

            In
opposition to class certification, Overhill relied on the declaration of Yolanda
Diaz; as relevant to the rounding issue, Diaz said:  “Throughout the employment of the named
plaintiffs in this case, Overhill paid employees only from their scheduled
start time, as required by the CBA; thus, it did not matter whether they
clocked in 1 minute early or 10 minutes early, they would be paid only from
their scheduled start time.  In addition,
if they clocked in late, then Overhill imposed a penalty of up to 15
minutes.  The CBA states that employees
will be paid from the scheduled start time.” 


            Overhill
also relied on the declarations of several Overhill employees.  Jose Menendez (quality control supervisor)
said in his declaration that some employees chose to arrive at work and clock
in prior to the scheduled start of their shifts, but those who did so “would
often sit outside and chat with a friend, or sit in the break room and have
coffee.  I never saw an employee arrive
early for work and then begin working prior to their scheduled start time.”  Julieta Perez, a packer, stated in her declaration
that she used to arrive at work early because she took the bus, but she was
never asked or expected to perform any work prior to the scheduled start of her
shift and she never performed any work before clocking in.  Teodoro Garcia, Dolores Martinez, Beatriz
Martinez, Julieta Perez, and Nestora Cabada all stated in declarations that
they “never felt that a supervisor manipulated the timing of when I left to
somehow take paid time away from me.” 

 

            D.        The Trial Court’s Findings

            The
trial court held that the rounding allegation was not appropriate for class
treatment because common issues did not predominate: 

            “[Plaintiffs
allege that] Defendant uniformly rounds time for pre- and post-shift work
always in its favor.  Plaintiffs contend
this is unlawful under the DLSE Enforcement Manual, which states that rounding
practices ‘will be accepted by DLSE, provided that 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.’  DLSE Enforcement Manual 2002 Update § 47.2.

            “The
evidence demonstrates that Defendant had a policy of rounding the class
members’ time.  First, Defendant issued a
‘punch in punch out’ memo, which states class members were not to punch in or
out more than seven minutes outside of their scheduled shift so that Defendant
would always be able to round to the nearest hour.  Second, Ms. Diaz testified that class
members are only paid from the start of their shift, not before.  This is evidenced by the time members’ time
records, which are rounded to exclude time that is outside their scheduled
shifts.

            “Defendant
argued in opposition that the class members were not always working during the
time that they clocked in before or clocked out after their scheduled shift,
which raises individualized questions as to whether the rounding failed to
compensate the employees for time actually worked.  As this is an affirmative defense raised by
Defendant, its impact on commonality must be examined.  Although Plaintiffs contend in their
supplemental briefing that liability turns solely on the record created by the
clock in and clock out times, the original motion for certification belies this
argument.  In order to avoid the
individualized questions raised by Defendant’s affirmative defense, Plaintiffs
spent significant time arguing that the class members are required to perform
pre- and post- shift work (donning and doffing of protective gear, hygiene
activities, etc.) and must be ready to work at the scheduled start of their
shifts.  Plaintiffs’ current contentions,
that their argument regarding the donning and doffing policy was irrelevant, is
difficult to countenance.  As noted
earlier, Plaintiffs did not provide substantial evidence of a classwide policy
to be ‘ready to work’ at the scheduled start of their shift such that they had
to perform work prior to their shift.”  (Internal
record references omitted.) 

 

            >E.         Analysis

            Plaintiffs
assert that Overhill’s rounding policy violates applicable law because it
uniformly rounds in the employer’s favor. 
The rounding policy is appropriate for class treatment, plaintiffs
assert, because Overhill uniformly applied it to the entire proposed class.  Further, they say, the trial court applied
improper legal criteria when it “reached into the merits of the issue as to
what worker[s] did during their time pre and post shift that was rounded,
rather than focusing on the actual issue for class certification, the question
of whether or not [Overhill’s] rounding policy is lawful or not lawful.”

            We
do not agree with plaintiffs that the trial court applied improper legal
criteria by considering whether employees who clocked in early or late were
working during the pre- and post-shift periods for which they were not
paid.  Indeed, See’s Candy mandates this inquiry. 
It held that if an employee clocks in prior to the start of his or her
shift, such time is properly rounded forward to the start of shift “>if the employee is not working or is not
under the employer’s control.”  (>See’s Candy, supra, 210 Cal.App.4th at p. 909.) 
Thus, the trial court could not evaluate the legality of Overhill’s
rounding policy without knowing whether employees were working or otherwise
were under Overhill’s control after they clocked in pre-shift.

            Further,
substantial evidence supported the trial court’s conclusion that individual
questions predominated with regard to Overhill’s pre- and post-shift rounding
policy.  Although several of the named
plaintiffs stated in their declarations that they performed work for which they
were not compensated prior to their scheduled start of their shifts, other
workers testified that while they sometimes clocked in before the start of
their shifts, they did not begin working until the shift began.  For example, Jose Menendez stated in his
declaration that although some quality control workers clocked in before the
start of their shifts, he never saw any worker begin working prior to the start
of his or her scheduled time.  Instead,
they “would often sit outside and chat with a friend, or sit in the break room
and have coffee.”