Opinion
Case No. 5:18-cv-01559-JWH-SHKx
2022-03-22
Ariana MILES, individually and on behalf of other members of the general public similarly situated and on behalf of other aggrieved employees pursuant to the California Private Attorneys General Act, Plaintiff, v. KIRKLAND'S STORES, INC., Defendant.
Arby Aiwazian, Edwin Aiwazian, Jacob L. Karczewski, Kenyon Daniel Harbison, Michelle Lauren Page, Lawyers for Justice PC, Glendale, CA, Caroline Natalie Cohen, Carolyn Hunt Cottrell, David C. Leimbach, Jin Kyoung Oh, Kyle G. Bates, Ian Worthington Forgie, Schneider Wallace Cottrell Konecky Wotky LLP, Emeryville, CA, Michelle S. Lim, Schneider Wallace Cottrell Konecky LLP, Los Angeles, CA, Stanley D. Saltzman, Marlin and Saltzman LLP, Agoura Hills, CA, William Marshall Hogg, Hodges and Foty LLP, Houston, TX, for Plaintiff. Andrew John Deddeh, Clint S. Engleson, Tracie L. Childs, Olgletree Deakins Nash Smoak and Stewart PC, San Diego, CA, for Defendant.
Arby Aiwazian, Edwin Aiwazian, Jacob L. Karczewski, Kenyon Daniel Harbison, Michelle Lauren Page, Lawyers for Justice PC, Glendale, CA, Caroline Natalie Cohen, Carolyn Hunt Cottrell, David C. Leimbach, Jin Kyoung Oh, Kyle G. Bates, Ian Worthington Forgie, Schneider Wallace Cottrell Konecky Wotky LLP, Emeryville, CA, Michelle S. Lim, Schneider Wallace Cottrell Konecky LLP, Los Angeles, CA, Stanley D. Saltzman, Marlin and Saltzman LLP, Agoura Hills, CA, William Marshall Hogg, Hodges and Foty LLP, Houston, TX, for Plaintiff.
Andrew John Deddeh, Clint S. Engleson, Tracie L. Childs, Olgletree Deakins Nash Smoak and Stewart PC, San Diego, CA, for Defendant.
ORDER DENYING PLAINTIFF'S MOTION FOR CLASS CERTIFICATION [ECF No. 64]
John W. Holcomb, UNITED STATES DISTRICT JUDGE
Before the Court is the motion of Plaintiff Ariana Miles, individually and on behalf of others similarly situated, for class certification. The Court conducted a hearing on the Motion on January 14, 2022. After considering the papers filed in support and in opposition, as well as the argument of counsel at the hearing, the Court orders that the Motion is DENIED , as set forth herein.
Pls.’ Memo. in Supp. of the Motion for Class Certification (the "Motion") [ECF No. 65].
The Court considered the following papers: (1) Compl. (the "Complaint") [ECF No. 1-1]; (2) the Motion (including its attachments); (3) Def.’s Opp'n to the Motion (the "Opposition") (including its attachments) [ECF No. 71]; and (4) Pl.’s Reply in Supp. of the Motion (the "Reply") (including its attachments) [ECF No. 78].
I. BACKGROUND
In May 2018, Miles filed her Complaint in Riverside County Superior Court, thereby commencing this putative class action against Defendants Kirkland's Stores, Inc. and Doe Defendants. In her Complaint, Miles asserts the following 11 causes of action: (1) Violation of California Labor Code §§ 510 and 1198 (Unpaid Overtime); (2) Violation of California labor Code §§ 226.7 and 512(a) (Unpaid Meal Period Premiums); (3) Violation of California Labor Code § 226.7 (Unpaid Rest Period Premiums); (4) Violation of California Labor Code §§ 1194, 1197, and 1197.1 (Unpaid Minimum Wages); (5) Violation of California Labor Code §§ 201 and 202 (Final Wages Not Timely Paid); (6) Violation of California Labor Code § 204 (Wages Not Timely Paid During Employment); (7) Violation of California Labor Code § 226(a) (Non-Compliant Wage Statements); (8) Violation of California Labor Code § 1174(d) (Failure To Keep Requisite Payroll Records); (9) Violation of California Labor Code §§ 2800 and 2802 (Unreimbursed Business Expenses); (10) Violation of California Business & Professions Code §§ 17200, et seq. ; and (11) Violation of California Labor Code § 2698, et seq. (California Labor Code Private Attorneys General Act of 2004).
See generally Complaint.
Id.
In July 2018, Kirkland's Stores removed this action to this Court. Miles filed the instant Motion in June 2021, and it is fully briefed. In connection with that briefing, Miles objected to Kirkland's Stores’ declarations (which Objection Miles styled as a "motion to strike), and Kirkland's Stores responded to that evidentiary Objection.
See Def.’s Notice of Removal [ECF No. 1].
Pl.’s Objection to Def.’s Evidence and Motion to Strike" (the "Objection") [ECF No. 79].
Pl.’s Opposition to the Objection (the "Objection Opposition") [ECF No. 81].
II. MILES'S EVIDENTIARY OBJECTION
Specifically, Miles objects to (1) the declaration of Kirkland's Stores’ expert witness Hunter McMahon; (2) the declarations of Kirkland's Stores’ fact witnesses Tracy Fugate and Janice Warnement; and (3) Kirkland's Stores’ so-called "happy camper" declarations. For the reasons discussed below, the Court OVERRULES Miles's Objection.
First, Miles argues that Kirkland's Stores failed to disclose McMahon properly under Rule 26(a)(2) of the Federal Rules of Civil Procedure. Rule 26(a)(2), however, is inapplicable at this stage; that rule primarily concerns expert disclosures relating to trial or expert discovery deadlines. Miles also objects that McMahon is not qualified to rebut the testimony of Miles's expert. But the Court is not required at this stage to determine whether McMahon's testimony would be admissible at trial; the Court declines to do so. See Sali v. Corona Reg'l Med. Ctr. , 909 F.3d 996, 1005 (9th Cir. 2018) ("[I]n evaluating a motion for class certification, a district court need only consider ‘material sufficient to form a reasonable judgment on each [Rule 23(a)] requirement.’ The court's consideration should not be limited to only admissible evidence." (citation omitted) (quoting Blackie v. Barrack , 524 F.2d 891, 901 (9th Cir. 1975) )). Accordingly, Miles's Objection is OVERRULED with respect to McMahon.
Objection 1:2-10.
See Objection Opposition 2:26-4:7.
Objection 5:18-9:15.
Second, Miles argues that Kirkland's Stores filed the declarations of Fugate and Warnement after the Court-imposed deadline and that, therefore, the Court should not consider them. The Court, however, finds that those late filings constitute "excusable neglect" because they were filed in good faith mere minutes after the Court's deadline, without prejudice to Miles, and with minimal impact on the proceedings. See Ahanchian v. Xenon Pictures, Inc. , 624 F.3d 1253, 1261 (9th Cir. 2010) (observing that a court may consider a party's late filing if it constitutes excusable neglect under a four-factor test). Accordingly, Miles's Objection is OVERRULED with respect to the declarations of Fugate and Warnement.
Id. at 1:1-13.
See Objection Opposition 7:3-8:23.
And third, Miles contends that the Court should afford no weight to Kirkland's Stores’ so-called "happy camper" declarations. Yet Miles does not provide persuasive evidence to show why the testimony provided in those declarations, made under penalty of perjury, are inappropriate for the Court's consideration. Accordingly, Miles's Objection is OVERRULED with respect to the "happy camper" declarations.
Objection 12:17-19:14.
See Objection Opposition 5:19-7:2.
III. LEGAL STANDARD
Rule 23 of the Federal Rules of Civil Procedure governs class actions. A party seeking class certification must establish the following:
(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.
Fed. R. Civ. P. 23(a). After satisfying those four prerequisites—typically referred to as "numerosity," "commonality," "typicality," and "adequacy"—a party must also demonstrate one of the following: (1) a risk that separate actions would create incompatible standards of conduct for the defendant or prejudice individual class members not parties to the action; (2) the defendant has treated the members of the class as a class, making appropriate injunctive or declaratory relief with respect to the class as a whole; or (3) common questions of law or fact predominate over questions affecting individual members and that a class action is a superior method for fairly and efficiently adjudicating the action. See Fed. R. Civ. P. 23(b)(1)–(3).
A trial court has broad discretion to grant or deny a motion for class certification. See Bateman v. Am. Multi-Cinema, Inc. , 623 F.3d 708, 712 (9th Cir. 2010). However, "[a] party seeking class certification must affirmatively demonstrate compliance with [ Rule 23 ]—that is, the party must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc." Wal-Mart Stores, Inc. v. Dukes , 564 U.S. 338, 350, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011). A district court must conduct a "rigorous analysis" that frequently "will entail some overlap with the merits of the plaintiff's underlying claim." Id. at 351, 131 S.Ct. 2541.
Rule 23 further provides that "[w]hen appropriate, an action may be brought or maintained as a class action with respect to particular issues," Fed. R. Civ. P. 23(c)(4), or the "class may be divided into subclasses that are each treated as a class under this rule," Fed. R. Civ. P. 23(c)(5). "This means that each subclass must independently meet the requirements of Rule 23 for the maintenance of a class action." Betts v. Reliable Collection Agency, Ltd. , 659 F.2d 1000, 1005 (9th Cir. 1981).
IV. DISCUSSION
Miles asks the Court to certify a class of "all current and former hourly-paid or non-exempt employees who worked for Defendant within the State of California at any time from May 24, 2014 through final judgment" (the "Class").
Motion 16:22-17:1.
To the extent that a narrower definition may be required, Miles also seeks the certification of the following six Subclasses of current and former Kirkland's Stores employees (the "Subclasses"):
(a) [the "Rest Break Subclass":] All of Defendant's past and present California non-exempt employees who worked more than three-and-one-half hours in any shift from May 24, 2014 through final judgment[ ];
(b) [the "Meal Break Subclass":] All of Defendant's past and present California non-exempt employees who worked more than five (5) hours in any shift from May 24, 2014 through final judgment [ ];
(c) [the "Bag Check Subclass":] All of Defendant's past and present California non-exempt employees who were required to go through a bag check or bag check procedure from May 24, 2014 through final judgment [ ];
(d) [the "Overtime Subclass":] All of Defendant's past and present California non-exempt employees who worked more than eight (8) hours in any shift or more than 40 hours in any workweek from May 24, 2014 through final judgment[ ];
(e) [the "Expense Reimbursement Subclass":] All of Defendant's pa[s]t and present California non-exempt employees who were required to use their personal cell phone for work purposes at any time from May 24, 2014 through final judgment[ ]; and
(f) [the "Wage Statement Subclass":] All of Defendant's past and present California non-exempt employees who received an itemized wage statement from May 24, 2014 through final judgment[ ].
Id. at 17:1-14.
Kirkland's Stores argues that class certification should be denied because the claims that Miles seeks to certify "require an astounding number of individualized inquir[ies] before liability and damages can be determined."
Opposition 1:5-8.
A. Rule 23(a) Requirements
1. Numerosity
Rule 23(a)(1) requires the class to be so numerous that joinder of all class members is impracticable. See Fed. R. Civ. P. 23(a)(1). To be impracticable, joinder must be difficult or inconvenient, but need not be impossible. See Keegan v. Am. Honda Motor Co. , 284 F.R.D. 504, 522 (C.D. Cal. 2012). No magic number automatically satisfies the numerosity inquiry, although 40 or more members will generally satisfy the requirement. See id. A plaintiff has the burden to establish that this requirement is satisfied. See United Steel, Paper & Forestry, Rubber, Mfg. Energy v. ConocoPhillips Co. , 593 F.3d 802, 806 (9th Cir. 2010).
Miles argues that the proposed Class is sufficiently numerous because Kirkland's Stores identified 3,050 putative Class members as of September 2020. Miles also asserts that the proposed Subclasses are sufficiently numerous because each Subclass, except for the Overtime Subclass, is "expected to be compromised of the vast majority" of the 3,050 Class members. Moreover, with respect to the Overtime Subclass, Kirkland's Stores’ "payroll and timekeeping records will be able to identify how many Class members were paid overtime during the relevant time period," so, for example, "[i]f only 2% of the 3,050 member-Class worked overtime" during that time period, the Overtime Subclass would be sufficiently numerous. Kirkland's Stores does not appear to contest Miles's numerosity arguments. The Court therefore finds that the proposed Class and Subclasses are sufficiently numerous.
Motion 18:3-5.
Id. at 18:9-12.
Id. at 18:12-16.
2. Commonality
Rule 23(a)(2) requires that there be "questions of law or fact common to the class[.]" Fed. R. Civ. P. 23(a)(2). Courts have construed Rule 23(a)(2) ’s commonality requirement permissively. See Staton v. Boeing Co. , 327 F.3d 938, 953 (9th Cir. 2003). A plaintiff satisfies the commonality requirement when she asserts claims that "depend upon a common contention ... capable of classwide resolution—which means that a determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke." Dukes , 564 U.S. at 350, 131 S.Ct. 2541 ("What matters to class certification ... is not the raising of common questions ... but, rather, the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.") (internal quotation marks and citations omitted) (emphasis added). Importantly, "[e]ven a single common question of law or fact that resolves a central issue" satisfies the commonality requirement. Castillo v. Bank of Am., NA , 980 F.3d 723, 728 (9th Cir. 2020) (citing Dukes , 564 U.S. at 359, 131 S.Ct. 2541 ).
Here, Miles argues that the following common questions of law and fact satisfy the commonality requirement for the Class and Subclasses:
• Does Defendant's exit search "bag check" policy occur off-the-clock and result in systematic failure to pay all wages owed under California law?
• Is Defendant's uniform on-premises rest period policy legal?
• Does Defendant's "bag check" policy result in (1) work being performed during unpaid meal breaks, and/or (2) discouragement of workers from taking their unpaid meal breaks off-premises?
• Does Defendant encourage and require non-exempt workers to use their personal cell phones for work-related purposes?
• Do Defendant's wage statements violate Labor Code § 226 ?
• Are any of the above violations unlawful, unfair, or fraudulent business practices in violation of Business & Professions Code §§ 17200 et seq. ?
Id. at 19:6-16.
The Court finds that the commonality requirement is satisfied here because Miles challenges uniform policies and alleged systemic practices that apply to the putative classes of employees. See Taylor v. Fedex Freight, Inc. , 2015 WL 2358248, at *7 (E.D. Cal. May 15, 2015), report and recommendation adopted , 2015 WL 4557412 (E.D. Cal. July 27, 2015) (collecting cases); see also Stiller v. Costco Wholesale Corp. , 298 F.R.D. 611, 625 (S.D. Cal. 2014), aff'd , 673 F. App'x 783 (9th Cir. 2017), and abrogated on other grounds by Campbell v. City of Los Angeles , 903 F.3d 1090 (9th Cir. 2018) ("The Court finds the questions of whether the Alleged Policy existed, was enforced on a companywide basis, and resulted in Costco's control over employees satisfy the commonality requirement."). 3. Typicality
Reply 9:8-12.
Typicality is fulfilled "if the claims or defenses of the representative parties are typical of the claims or defenses of the class." Castillo , 980 F.3d at 729 (citation and quotations omitted). "Under the rule's permissive standards, representative claims are ‘typical’ if they are reasonably co-extensive with those of absent class members; they need not be substantially identical." Id. (citation and quotations omitted). "The purpose of the typicality requirement is to assure that the interest of the named representative aligns with the interests of the class." Hanon v. Dataproducts Corp. , 976 F.2d 497, 508 (9th Cir. 1992). "The test of typicality is whether other members have the same or similar injury, whether the action is based on conduct which is not unique to the named plaintiffs, and whether other class members have been injured by the same course of conduct." Wolin v. Jaguar Land Rover No. Am. , 617 F.3d 1168, 1175 (9th Cir. 2010) (citation and quotations omitted).
Miles was allegedly subject to the same written policies as all other putative class members. See Bowen v. Target Corp. , 2021 WL 4860690, at *9 (C.D. Cal. June 24, 2021) ("Plaintiffs argue that typicality is satisfied because Plaintiffs were subject to the exact same policies as all other putative class members.... Plaintiffs are correct."). Moreover, her "alleged injuries are of the same type (namely, unpaid wages) as the other class members." Clemens v. Hair Club for Men, LLC , 2016 WL 1461944, at *2 (N.D. Cal. Apr. 14, 2016) (finding typicality was satisfied). For example, Miles testifies in her declaration that she worked as a non-exempt employee at a Kirkland's Stores location in California from approximately 2011 through 2018, during which she experienced uncompensated, off-the-clock bag checks and used her personal cell phone—without reimbursement—to enroll customers in Kirkland's Stores’ rewards program. Accordingly, the Court finds that the typicality requirement is satisfied.
Motion 20:4-10; Reply 9:8-12.
Declaration of Ariana Miles [ECF No. 68-1] ¶¶ 2, 5, & 8.
4. Adequacy
To determine whether a proposed class representative will adequately protect the interests of the class, "we ask two questions: (1) Does the representative Plaintiff and her counsel have any conflicts of interest with other class members, and (2) will the representative Plaintiff and her counsel prosecute the action vigorously on behalf of the class?" Staton , 327 F.3d at 957 (citations omitted).
Kirkland's Stores does not contest that Miles and her counsel will vigorously prosecute the action on behalf of the class or that Miles and her counsel have no conflicts of interest with other class members. Rather, Kirkland's Stores argues that Miles is an inadequate class representative primarily because she lacks credibility. In support, Kirkland's Stores alleges that Miles "testified against the interest of other class members" by asserting "that she would clock out after the bag check was done," even though most of the Subclasses "rely on bag checks being performed after an employee clocks out." The Court, however, is not persuaded that Miles ever testified that she would clock out after the bag check was done.
See Opposition 6:15-8:28.
Id. at 6:28-7:7.
See Reply 11:11-12:5 & 11 n.3.
Kirkland's Stores also argues that Miles lacks credibility because (1) she has given "false and misleading testimony" concerning the number of times that she worked before clocking in for her shifts; and (2) she falsely testified about never being reimbursed for work-related expenses. However, the Court finds that those inconsistencies, even if taken as true, do not so undermine Miles's credibility "as to render [her] unfit to represent the class." See Greko v. Diesel U.S.A., Inc. , 277 F.R.D. 419, 427 (N.D. Cal. 2011) (citation and quotations omitted). Accordingly, the Court finds that Miles and her counsel meet the adequacy requirement.
Opposition 7:8-8:3.
B. Rule 23(b)(3) Requirement
"In addition to satisfying Rule 23(a) ’s prerequisites, parties seeking class certification must show that the action is maintainable under Rule 23(b)(1), (2), or (3)." Amchem Prod., Inc. v. Windsor , 521 U.S. 591, 614, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). Miles seeks to certify her Class and Subclasses under Rule 23(b)(3) —the so-called "predominance" standard—which requires that common questions of law or fact predominate over questions affecting only individual members and that a class action be superior to other potential methods of adjudication. Fed. R. Civ. P. 23(b)(3).
"[T]he focus of the predominance inquiry is whether a proposed class is sufficiently cohesive to warrant adjudication by representation." Castillo , 980 F.3d at 730 (quotations omitted). "But the rule does not require a plaintiff seeking class certification to prove that each element of their claim is susceptible to classwide proof, so long as one or more common questions predominate ." Id. (quotations omitted; emphasis added). "Individual differences in calculating the amount of damages will not defeat class certification where common issues otherwise predominate." Id.
"To ensure that common questions predominate over individual ones, the court must ensure that the class is not defined so broadly as to include a great number of members who for some reason could not have been harmed by the defendant's allegedly unlawful conduct." Id. (quotations omitted). "If many class members have no claim whatsoever because they were never exposed to the challenged conduct to begin with, the class does not satisfy Rule 23(b)(3)." Id. (quotations omitted).
For example, in a discrimination case, the Ninth Circuit concluded that "[i]f there is no evidence that the entire class was subject to the same allegedly discriminatory practice, there is no question common to the class. In other words, the district court must determine whether there was ‘significant proof that [the company] operated under a general [unlawful] policy ....’ " Ellis v. Costco Wholesale Corp. , 657 F.3d 970, 983 (9th Cir. 2011) (quoting Dukes , 564 U.S. at 353, 131 S.Ct. 2541 ).
Kirkland's Stores contends that Miles has not established predominance because "liability cannot be determined on a class-wide basis and individual questions predominate." Kirkland's Stores emphasizes that "multiple threshold questions" must be asked "before liability can be determined as to each individual" class member.
Id. at 9:5-6.
Id. at 11:5-7.
1. Security Bag Checks
Several of Miles's proposed Subclasses rely on employees undergoing security bag checks off the clock: the Meal Break Subclass, Bag Check Subclass, Overtime Subclass, and one theory of liability under both the Rest Break Subclass and Wage Statement Subclass. The parties agree that Kirkland's Stores’ written bag-check policy—which ended sometime in 2019—required employees to submit to mandatory security bag checks whenever they left the store premises, including for meal breaks, and that that written policy applied at every Kirkland's Stores facility in California.
See Reply 2:22-3:7.
That written policy is lawful on its face; it does not require what Miles alleges to be illegal—that bag checks be performed off the clock. Because the written policy is lawful, the predominance inquiry turns on whether there is "significant proof" that Kirkland's Stores "operated under a general [unlawful] policy" of conducting uncompensated off-the-clock bag checks. See Ellis , 657 F.3d at 983. Such proof would prevent individualized inquiries from predominating over common questions.
See Opposition 10:24-28.
To that end, Miles argues that the written bag-check policy necessitated off-the-clock, non-compensable bag checks: "Because employees clock in and out at the cash register in the store, and complete a bag check near the door while exiting," Miles contends, "they necessarily complete these bag checks after they clock out for their shift while leaving the store." In support, Miles cites the declarations of seven former Kirkland's Stores employees, including a store manager and an assistant store manager, from numerous California Kirkland's Stores facilities, who testify regarding off-the-clock bag checks. Kirkland's Stores, in contrast, provides nearly two dozen declarations from former and current Kirkland's Stores employees, including store managers, to show that the written bag-check policy did not, in practice, necessitate off-the-clock bag checks.
Motion 4:8-16; Reply 2:22-3:2.
Motion 5:12-14 & 5 n.18.
See id. at 5:10-14.
Opposition 11:1-5; see Index of Declarations in Supp. of Opposition (the "Opposing Declarations") [ECF No. 74].
The Court finds that there is insufficient evidence to demonstrate a general practice across Kirkland's Stores’ California facilities of unlawful bag checks that predominates over individualized inquires. No uniform, unlawful bag-check practice existed. First, not every employee underwent a bag check—generally consisting of a quick visual inspection—because not every employee brought a bag to work. Second, employees who brought a bag did not necessarily undergo a bag check because each store failed to conduct consistent bag checks. Third, even when bag checks were conducted, they were not necessarily conducted off the clock: Although both parties provide evidence that some bag checks were, indeed, conducted at the door after an employee clocked out at the register, Kirkland's Stores shows that, at other times, bag checks were conducted at the register as the employee clocked out or while the employee was clocked in. In fact, there is no record of whether any one bag check was conducted and whether it was conducted on or off the clock. Fourth, even if a bag check was conducted off the clock, employees could use the time adjustment log to record uncompensated time not captured by the timekeeping system, such as time spent on a bag check.
Opposition 11:10-11; see, e.g. , Declaration of Brian Klagenberg (the "Klagenberg Declaration") [ECF No. 74-1]¶ 6.
See, e.g. , Declaration of Hayley Cocchiarella (the "Cocchiarella Declaration") [ECF No. 74-2] ¶ 11.
See Klagenberg Declaration ¶ 10; Declaration of Stephen Rey (the "Rey Declaration") [ECF No. 74-7] ¶ 8; Declaration of Carrie Hebert (the "Hebert Declaration") [ECF No. 74-11] ¶ 10.
See, e.g. , Cocchiarella Declaration ¶ 11; Declaration of Dawn Sanchez [ECF No. 74-4] ¶ 10; Declaration of Susan Nyuten [ECF No. 74-10] ¶ 10.
See, e.g. , Declaration of Ron Pardue [ECF No. 74-5] ¶ 8; Declaration of Heather Macaulay (the "Macaulay Declaration") [ECF No. 74-6] ¶ 10; Rey Declaration ¶ 8.
Opposition 19:6-9.
Declaration of Carolyn H. Cottell, Ex. A (the Warnement Deposition) [ECF No. 66-1] 66:22-25, 187:4, & 213:3-6; Opposition 19:2-6; Klagenberg Declaration ¶ 5.
As a result, with respect to bag checks, the Court determines that individual questions predominate over common ones because "the only way of showing the [unlawful] ‘practice’ that [Miles] claims existed" across California Kirkland's Stores facilities "would be to determine when and how" the facially lawful bag check policy "was applied in each instance." See Washington v. Joe's Crab Shack , 271 F.R.D. 629, 640 (N.D. Cal. 2010) (finding that individual questions predominate in a meal-break claim).
Accordingly, the Court finds that predominance is not satisfied for the following classes: the Bag Check Subclass, Overtime Subclass, Meal Break Subclass, and—to extent that it rests on the allegedly unlawful bag check practice—the Wage Statement Subclass.
2. Cell Phone Use
Kirkland's Stores argues that predominance is not satisfied for the Expense Reimbursement Subclass. That Subclass includes Kirkland's Stores employees who allegedly had to use their cell phones to meet Kirkland's Stores’ "benchmarks," set at the corporate level, "for the retail stores to sign up a minimum number of customers for Kirkland's Stores’ rewards/membership program that could only be met if workers used their personal cell phones to accomplish the tasks." Miles asserts that employees were not reimbursed for their personal cell phone use, even though "Kirkland's had reason to know workers were using their cell phones for work-related purposes."
Reply 10:1-4.
Id. at 10:4-7.
Kirkland's Stores, however, had an official written policy that employees "are not to use their personal cell phones for work purposes." In fact, until "around 2019," employees were "not allowed to have their personal cell phones on their person while working." Thus, because the Expense Reimbursement Subclass involves an "indisputably lawful polic[y]," the "issue [is] whether there existed unofficial policies and practices at various ... stores"—as Miles alleges—"that deviated from the official" policy. Caudle v. Sprint/United Mgmt. Co. , 2018 WL 6618280, at *4 (N.D. Cal. Dec. 18, 2018) (emphasis added). Sorting out such an issue would "in turn" involve "individualized inquiries and thereby destroy the predominance of a common question." Id.
Opposition 5:22-23 (emphasis added).
Id. at 5:23-24.
Accordingly, the Court finds that the Expense Reimbursement Subclass fails to satisfy predominance.
3. Rest Breaks
Miles's remaining theory of liability concerns the Rest Break Subclass and derivative Wage Statement Subclass. The Rest Break Subclass consists of all of Kirkland's Stores’ "past and present California non-exempt employees who worked more than three-and-one-half hours in any shift from May 24, 2014 through final judgment." Miles argues that Kirkland's Stores requires those employees to remain on premises—while subject to Kirkland's Stores’ control—during paid rest breaks, for which Kirkland's Stores does not compensate employees with regular pay in accordance with California wage laws. If true, then those employees’ wage statements are inaccurate, according to the derivative Wage Statement Subclass.
Motion 17:4-5.
Id. at 6:2-7:9.
Id. at 14:17-15:11 & 17:13-14.
Kirkland's Stores admits that it had a uniform employee handbook policy requiring employees to remain on premises during their 10-minute paid rest breaks until sometime in 2018. Miles argues that that policy, on its face, violates California Labor Code § 226.7(b) because it requires employees to perform work duties during paid rest periods. See Augustus v. ABM Sec. Servs., Inc. , 2 Cal. 5th 257, 269, 211 Cal.Rptr.3d 634, 385 P.3d 823 (2016) (finding that, under California law, "during rest periods employers must relieve employees of all duties and relinquish control over how employees spend their time"). Miles explains that the policy requires employees to perform work duties during rest breaks because "the handbook has been explicit that ‘Employees are required ... to work all scheduled hours and any authorized overtime.’ ... There is no provision within any version of the handbook stating that paid rest periods are to be completely unfettered and free from [Kirkland's Stores’] control." As such, Miles argues, Kirkland's Stores’ non-exempt employees are "required to perform their duties during all scheduled work time, which necessarily includes on-the-clock[, on-premises] rest periods." Miles contends, in other words, that "[s]etting a policy expectation that employees are to perform their duties during scheduled work time, and restricting employees to the employer's premises [during their rest period] ... is a form of employer control."
See Opposition 12:19-20; Motion 7:6-12.
Motion 6:12-14 (emphasis added).
Id. at 6:15-7:2.
Id. at 7:4-9.
Id. at 8:5-8.
Kirkland's Stores, on the other hand, contends that (1) its policy requiring employees to stay on-premises during rest periods has not existed since at least 2018; (2) that policy was not consistently put into practice; and (3) regardless, "on-premises rest breaks are lawful, so long as they allow for duty-free rest breaks," which Kirkland's Stores says that it allowed. There is, indeed, evidence that Kirkland's Stores’ on-premises policy was not consistently implemented: According to the declarations of several Kirkland's Stores employees (including a declaration submitted by Miles ), employees would occasionally or routinely take duty-free or off-premise rest breaks—in compliance with California law—when Kirkland's Stores’ on-premises policy existed. See Castro v. PPG Industries, Inc. , 2020 WL 6205704, at *5 (C.D. Cal. Aug. 28. 2020) (finding that predominance was not satisfied for a class involving meal-break claims partly because "[a]ccording to declarations submitted by several of Defendants’ employees, those employees are routinely able to take their meal breaks without interruption or interference and otherwise in compliance with California's legal requirements").
Opposition 16:9-19 & 17:16-21 (emphasis added).
Declaration of Natalia Brenes [ECF No. 68-3] ¶ 6.
See Klagenberg Declaration ¶ 13; Macaulay Declaration ¶ 13; Declaration of Carrie Hebert [ECF No. 74-11] ¶ 13; Declaration of Jesse Pacheco [ECF No. 74-18] ¶ 11; Declaration of Tina Oldaker [ECF No. 74-19] ¶ 13; Declaration of Katrina Flora [ECF No. 74-23] ¶ 13.
This Court concludes that there is an absence of evidence that Kirkland's Stores’ rest period policy, as implemented class-wide, violates California law, which means that the Court "would have to conduct individualized inquiries" into whether each such Subclass member was denied a duty-free rest break while being required to stay on premises. See Ayala v. U.S. Xpress Enterprises, Inc. , 2016 WL 7586910, at *8 (C.D. Cal. Dec. 22, 2016) ("Absent evidence that [defendant's] policy, as implemented class-wide, violates California law, the Court would have to conduct individualized inquiries into whether each putative Class Member took meal and rest breaks, and if they did not, the reasons why. As such, class certification under Rule 23(b) is inappropriate."). Since Miles cannot show that Kirkland's Stores had a policy of preventing employees from taking duty-free rest breaks on premises, determining whether each employee's rest break was duty-free—and, if not, why not—requires individualized inquiries because "evidence in the record" shows that employees took duty-free breaks. See Cole v. CRST, Inc. , 317 F.R.D. 141, 145–46 (C.D. Cal. 2016) ("As Plaintiff cannot show that Defendant had a policy of preventing drivers from taking meal and rest breaks, and because there is evidence in the record of drivers taking meal and rest breaks without interference from Defendant, individualized inquiries predominate. In order to determine why some drivers took meal and rest breaks while others did not requires individualized inquiries as to each driver.").
Indeed, "[t]o the extent that [Miles] or others" experienced on-premises rest periods that were not duty-free, "determ[ining] liability would require an individualized analysis that might vary by department and supervisor." See Castro , 2020 WL 6205704, at *5 ("To the extent Plaintiff or others felt pressured to skip meal breaks, to determine liability would require an individualized analysis that might vary by department and supervisor.").
Because the remaining theory of liability—the rest-break claim—under the Wage Statement Subclass fails, so too does the Wage Statement Subclass. And with no Subclass satisfying predominance, the proposed Class fails as well. Accordingly, the Court finds that neither the proposed Class nor any proposed Subclass satisfies the predominance requirement.
V. CONCLUSION
For the foregoing reasons, the Court hereby ORDERS as follows:
1. Miles evidentiary Objection is OVERRULED .
2. Miles's instant Motion for Class Certification is DENIED .
3. The parties are DIRECTED to confer forthwith and to file no later than April 1, 2022, a Joint Status Report that provides the Court with their jointly proposed case schedule or, if the parties cannot agree, their respective competing proposed case schedules and the reasons for their disagreement.
4. The video Case Management Conference is CONTINUED to April 15, 2022, at 11:00 a.m.