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1 R. Craig Clark (SBN 129219)
cclark(®clarklawyers.com
2 JessicaR. Corrales (SBN 298237)
jcorrales(^clarklawyers.com
3 Monique R. Rodriguez (SBN 304223)
mrodriguez(Sclarklawyers.com
4 C L A R K LAW GROUP
205 West Date Street FlLlED/ENDORSED
5 San Diego, CA 92101
Telephone: (619) 239-1321 FEB 14 2018
6 Facsimile: (888) 273-4554
7 Walter Haines (SBN 071075) By: E. Toscano
Deputy Clerk
UNITED E M P L O Y E E S LAW GROUP
8 5500 Bolsa Avenue, Suite 201
Huntington Beach, CA 92649
9 Telephone: (562) 256-1047
Facsimile: (562) 256-1006
10
Attorneys for Plaintiff
11
12 SUPERIOR COURT OF THE STATE OF CALIFORNIA
13 IN AND FOR THE COUNTY OF SACRAMENTO
14 JASON HUDSON, as an individual, on CASE NO.: 34-2016-00202203
15 behalf of himself, and all persons similarly
situated, [Assigned to the Hon. Alan G. Perkins, Dept. 35]
16 CLASS & REPRESENTATIVE ACTION
Plaintiff,
PLAINTIFF JASON HUDSON'S NOTICE
17 OF MOTION AND MOTION FOR CLASS
CERTIFICATION; MEMORANDUM OF
18 POINTS AND AUTHORITIES
19 PACIFIC BELL TELEPHONE
COMPANY, a Califomia corporation Date: April 20, 2018
Time: 10:30 a.m.
20 authorized to do business in the state of
Califomia, and DOES 1 to 10 inclusive. Dep't: 35
21 Defendant. [Filed and served concurrently herewith the
22 Declaration of R. Craig Clark ISO Plaintiffs
Motion for Class Certification, the Declaration of
23 Jason Hudson ISO Plaintiffs Motion for Class
24 Certification, the Compendium of Declarations
ISO Plaintiff's Motion for Class Certification,
25 Plaintiffs Request for Judicial Notice ISO
Plaintiffs Motion for Class Certification, the
26
Declaration of R. Craig Clark ISO Plaintiffs
27 Request for Judicial Notice.]
28
1
PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION;
MEMORANDUM OF POINTS AND AUTHORITIES
1 TO THE COURT, ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
2 PLEASE TAKE NOTICE that on April 20, 2018 at 10:30 a.m., in Department 35 ofthe
3 above-captioned Court, located at 720 9th Street, Sacramento, Califomia 95814, Plaintiff Jason
4 Hudson ("Plaintiff") will seek an order certifying the following classes and/or subclasses in
5 this class action pursuant to Califomia Code of Civil Procedure section 382 and Califomia
6 Rules of Court, Rule 3.764. Plaintiff seeks certification of the following classes and/or
7 subclasses:
8
1. Non-Compliant Meal Period Class: All current and former non-exempt
9 employees ofDefendant who held the position of Premises Technician in the state of
Califomia who were subject to Defendant's performance standards and who worked
10 more than six (6) hours in a work-day at any time during the period ofOctober 24, 2012
11 through the last day of trial, or any date the Court deems just and proper.
12 a. Late Meal Period Sub-Class: All current and former non-exempt employees of
Defendant who held the position of Premises Technician in the state of Califomia
13 who were subject to Defendant's performance standards, who worked more than
14 six (6) hours in a work-day, and whose time records show that they were
provided with a meal period after the 5* hour of work at any time during the
15 period of October 24, 2012 through the last day of trial, or any date the Court
deems just and proper.
16
17 b. Missed Meal Period Sub-Class: All current and former non-exempt employees of
Defendant who held the position of Premises Technician in the state of California
18 who were subject to Defendant's performance standards, who worked more than
19 six (6) hours in a work-day, and whose time records show that they did not log
out for a meal period at any time during the period of October 24, 2012 through
20 the last day of trial, or any date the Court deems just and proper.
21
2. Missed Second Meal Period Class: All current and former non-exempt
22 employees ofDefendant who held the position of Premises Technician in the state of
Califomia who were subject to Defendant's perfonnance standards and who worked
23 more than twelve (12) hours in a work-day at any time during the period of October 24,
24 2012 through the last day of trial, or any date the Court deems just and proper.
25 3. Non-Compliant Rest Period Class: All current and former non-exempt
26 employees ofDefendant who held the position of Premises Technician in the state of
Califomia who were subject to Defendant's performance standards and who worked
27 four (4) or more hours in a work-day at any time during the period ofOctober 24, 2012
through the last day of trial, or any date the Court deems just and proper.
28
PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION;
MEMORANDUM OF POINTS AND AUTHORITIES
4. Unpaid Wages Class: All current and former non-exempt employees of
2 Defendant who held the position of Premises Technician in the state of Califomia who
were subject to Defendant's performance standards and were not paid for all hours
worked at any time during the period of October 24, 2012 through the last day of trial,
4 or any date the Court deems just and proper.
5 a. Equipment and Delivery Sub-Class: All current and former non-exempt
employees ofDefendant who held the position of Premises Technician in the
6 state of Califomia and who were part of the Home Dispatch Program, who were
7 subject to Defendant's performance standards and were not paid for all hours
worked at any time during the period ofOctober 24,2012 through the last day of
^ trial, or any date the Court deems just and proper.
9
5. Waiting Time Class: All former non-exempt employees ofDefendant who held
10 the position of Premises Technician in the state of Califomia who were subject to
11 Defendant's performance standards and who did not receive any and all wages owed
upon separation of employment at any time during the period ofOctober 24, 2012
12 through the last day of trial, or any date the Court deems just and proper.
13 6. Non-Compliant Wage Statement Class: All current and former non-exempt
j4 employees ofDefendant who held the position of Premises Technician in the state of
Califomia who were subject to Defendant's performance standards and who did not
15 receive accurate itemized wage statements at any time during the period of October 24,
2012 through the last day of trial, or any date the Court deems just and proper.
16
17 7. Unfair Competition Class: All current and former non-exempt employees of
Defendant who held the position of Premises Technician in the state of Califomia who
18 were subject to Defendant's performance standards and who were subjected to
Defendant's unlawful, unfair, orfraudulentbusiness practices at any time during the
period of October 24, 2012 through the last day of trial, or any date the Court deems just
20 and proper.
21
a. Unlawfiil Practices Sub-Class: All current and former non-exempt
22 employees ofDefendant who held the position of Premises Technician in the
state of Califomia who were subject to Defendant's performance standards and
23 who were subjected to Defendant's unlawful business practices at any time
24 during the period of October 24,2012 through the last day of trial, or any date
the Court deems just and proper.
25
b. Unfair Practices Sub-Class: All current and former non-exempt employees
ofDefendant who held the position of Premises Technician in the state of
27 Califomia who were subject to Defendant's performance standards and who were
subjected to Defendant's unfair business practices at any time during the period
28
PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION;
MEMORANDUM OF POINTS AND AUTHORITIES
of October 24, 2012 through the last day of trial, or any date the Court deems just
1 and proper.
2
c. Fraudulent Practices Sub-Class: All current and former non-exempt
3 employees ofDefendant who held the position of Premises Technician in the
4 state of Califomia who were subject to Defendant's performance standards and
who were subjected to Defendant'sfraudulentbusiness practices at any time
5 during the period of October 24,2012 through the last day of trial, or any date
the Court deems just and proper.
6
7 This Motion is based upon this Notice of Motion, the Memorandum of Points and
8 Authorities filed herewith, the declarations in support of this Motion, the Request for Judicial
9 Notice, the pleadings and papers filed in this Action, and upon any such other evidence and
10 argument that may be presented to the Court at the time of the hearing.
11 Notice of Tentative Ruling System
12 Pursuant to Local Rule 1.06(A), the Court will make a tentative mling on the merits of
13 this matter by 2:00 p.m., the court day before the hearing. The complete text of the tentative
14 mlings for the department may be downloaded off the Court's website. Ifthe party does not
15 have online access, they may call the dedicated phone number for the department as referenced
16 in the local telephone directory between the hours of 2:00 p.m. and 4:00 p.m. on the court day
17 before the hearing and receive the tentative mling. If you do not call the court and the
18 opposing party by 4:00 p.m. the court day before the hearing, no hearing will be held.
19
20 Dated: Febmary 14,2018 CLARK LAW ^^ROUP
21
22 By:
R. Craig Olark
23 Jessica R. Corrales
Monique R. Rodriguez
24 Attorneys for Plaintiff
25
26
27
28
PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION;
MEMORANDUM OF POINTS AND AUTHORITIES
1 TABLE OF CONTENTS
2 I. INTRODUCTION 9
3 II.
4 III.
5 rv.
6 A. Each ofthe Proposed Classes Have a Weil-Defined Community of Interest 15
7 1. Common Questions of Law and Fact Predominate for Each Class 16
8 i. Pacific Bell has a Common Practice of Failing to Provide Premises
9 Technicians with the Reasonable Opportunity to Take Lawful Off-Duty
10 Meal Periods 16
11 ii. Pacific Bell has a Uniform Practice of Failing to Authorize and Permit
12 Off-Duty Rest Periods 18
13 iii. Pacific Bell has a Uniform Practice of Failing to Pay Premises
14 Technicians for All Hours Worked 20
15 iv. Pacific Bell has a Common Practice of Failing to Pay All Wages Owed
16 Upon Termination of the Employment Relationship 21
17 V. Pacific Bell has a Uniform Practice of Failing to Provide Premises
18 Technicians with Accurate Itemized Wage Statements 22
19 vi. Pacific Bell Violated California's Unfair Competition Law 23
20 2. Plaintiffs Claims are Typical of Those of the Proposed Classes 25
21 3. Plaintiff and His Counsel are Adequate to Represent the Proposed Classes ... 25
22 B. The Proposed Classes are Ascertainable and Sufficiently Numerous 26
23 C. Class Certification is a Superior Way to Resolve the Dispute 27
24 V. PLAINTIFF'S PRIVATE ATTORNEYS GENERAL ACT OF 2004 CLAIMS .28
25 VI. CONCLUSION 28
26
27
28
PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION;
MEMORANDUM OF POINTS AND AUTHORITIES
1 T A B L E OF AUTHORITIES
2 CASES
3 Abdulla V. U.S. Sec. Assoc.
(2013) 731 F.3d 952 20
4
•J
5 Armenta v. Osmose
(2005) 135 Cal.App.4th 314 : 22
6
7 Augustus V. ABM Security Services, Inc.
(2016)2Cal.5th257 18, 19
8
9 Blakemore v. Superior Court
(2005) 129 Cal.App.4th 36 24
10
11 Bradley v. Networkers Internat. LLC
(2012)211 Cal.App.4th 1129 16, 19
12
13 Brinker Restaurant Corp. v. Superior Court
(2012) 53 Cal.4th 1004 15, 16, 17, 18, 19, 20
14
15 Bufil V. Dollar Fin. Grp., Inc.
(2008) 162 Cal.App.4th 1193 26, 27
16
17 B. W.L Custom Kitchen v. Owens-Illinois, Inc.
(1987) 191 Cal.App.3d 1341 25
18
19 CashCall, Inc. v. Superior Court
(2008) 159 Cal. App.4th 273 26
20
21 Cel-Tech Commc 'ns. Inc. v. Los Angeles Cellular Tel. Co.
(1999) 20 CaUth 163 23
22
23 Duran V. U.S. Bank National Assn.
(2014) 59 Cal.4th 1 27
24
25 Jones V. Farmers Ins. Exchange
(2013) 221 Cal.App.4th 986 25
26
27 Kerr's Catering Service v. Department of Industrial Relations
(1962)57Cal.2d319 22
28
6
PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION;
MEMORANDUM OF POINTS AND AUTHORITIES
1 Linder v. Thrifty Oil Co.
(2000)23 Cal.4th429 15
2
3 Lubin V. The Wackenhut Corp.
(2016) 5 Cal.App.5th 926 20
4
5 Martinez v Joe's Crab Shak Holdings
(2014) 231 Cal.App.4th 362 25
6
7 Mc Ghee v. Bank of America
(1976) 60 Cal.App.3d 442 26
8
9 People V. Casa Blanca Convalescent Homes, Inc.
(1984) 159 Cal.App.3d 509 24
10
11 Richmond v. Dar Industries, Inc.
(1981)29 Cal.3d462 25
12
13 Safeway, Inc. v. Superior Court
(2015) 238 Cal.App.4th 1138 24
14
15 Stewart v. San Luis Ambulance, Inc.
(9th Cir. 2017) 878 F.3d 883 21
16
17 STATUTES
18 Califomia Business and Professions Code § 17200 11,23, 24,25
19 Califomia Labor Code § 201 22
20 Califomia Labor Code § 202 22
21 Califomia Labor Code § 203 21, 22
22 Califomia Labor Code § 204 20
23 Califomia Labor Code § 226 21, 22
24 Califomia Labor Code § 226.7 19,22, 23
25 Califomia Labor Code §512 16
26 Califomia Labor Code § 1174 27
27 CaHfomia Labor Code § 1197 20
28 Califomia Labor Code § 1198 20
7
PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION;
MEMORANDUM OF POINTS AND AUTHORITIES
1 Califomia Labor Code § 2698 et seq 28
2 SECONDARY SOURCES
3 Industrial Welfare Commission Wage Order 7-2001 18, 27
4 DLSE Opinion Letter, 2013.04.22 20
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PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION;
MEMORANDUM OF POINTS AND AUTHORITIES
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. INTRODUCTION
3 Plaintiff Jason Hudson's Motion for Class Certification ("Plaintiffs Motion") involves
4 approximately 6,000 non-exempt employees ofDefendant Pacific Bell Telephone Company
5 ("Defendant" or "Pacific Bell") who held the position of Premises Technician in the state of
6 Califomia. Premises Technicians are individuals who typically work alone, drive company
7 service vehicles, and install and repair home intemet, television, and other similar
8 telecommunications products. Plaintiffs Motion seeks to certify distinct but related classes
9 and sub-classes for violations ofthe Califomia Labor Code ("Labor Code") and Califomia
10 Business and Professions Code.
11 The violations have the same or similar pattem and impact on all putative class
12 members. Pacific Bell writes and mouths legally compliant Califomia policies for Premises
13 Technicians but then puts in place performance standards, targets and requirements, along with
14 time reporting systems, that make it simple, and almost necessary that Premises Technicians
15 report inaccurate information, while working off the clock and forgoing or delaying breaks.
16 Pacific Bell's performance standards and time reporting systems are apparently set up to
17 conceal violations. However, once Pacific Bell's scheme and practice is understood and the
18 evidence is evaluated, the violations are clear and common to all Premises Technicians. In
19 fact, the violations are quite straight forward and easy to prove once all ofthe data is properly
20 disclosed and aligned.
21 Plaintiffs Motion will explain the various ways the violations are caused and known by
22 Defendant for each of the proposed classes. For example, Pacific Bell imposes performance
23 standards, which compel and induce Premises Technicians to work through their required
24 breaks, to take late breaks, and/or to work off the clock in order to meet the targets set by
25 Pacific Bell. Moreover, the fact that Pacific Bell ranks Premises Technicians against each other
26 to ensure that a competitive element is put into play only solidifies PlaintifPs contention that
27 Pacific Bell impedes and otherwise discourages Premises Technicians from taking legally
28 compliant meal and rest breaks.
PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION;
MEMORANDUM OF POINTS AND AUTHORITIES
1 Though Defendant will undoubtedly assert that its written policies are legal and in
2 compliance with the mandates of Califomia law. Defendant's argument is severely flawed.
3 Califomia law clearly prohibits an employer from "exerting coercion against the taking of,
4 creating incentives to forego, or otherwise encouraging the skipping of legally protected
5 breaks." However, that is precisely what Pacific Bell has done and continues to do to Premises
6 Technicians. Most importantly, this practice is common to all putative class members.
7 The evidence discovered by Plaintiff further reveals that Pacific Bell not only knows
8 that the putative class members are not working in compliance with the Labor Code, but also
9 discloses that Pacific Bell intentionally set up policies and practices that dissuade Premises
10 Techniciansfromtaking legally complaint breaks and that Pacific Bell ultimately benefits from
11 the obscure stmcture. Pacific Bell's overlapping systems also seek to ensure that the violations
12 remain concealed. Ultimately, class certification should be granted since Defendant's liability
13 can be proven on questions of law and fact that are common to all putative class members.
14 H. FACTS SUPPORTING CERTIFICATION
15 A. Overview of Claims and Classes for Which Certification is Sought
16 Plaintiff Jason Hudson ("Plaintiff) was employed by Defendant Pacific Bell Telephone
17 Company dba AT&T as a Premises Technician in Woodland, Califomiafromapproximately
18 January 2014 until August 2015. Hudson Decl. at T| 10. During his employment, Plaintiff
19 leamed that all Premises Technicians in Califomia have the same or similar job
20 responsibilities, which includes the delivery, installation, upgrade and repair of television,
21 intemet, and other Pacific Bell telecommunication products. Hudson Decl. at 4, 11; see also
22 Plaintiffs Compendium of Declarations ISO Plaintiffs Motion for Class Certification ("Plft's
23 Compen. Decls."). Plaintiff also discovered that Premises Technicians in Califomia are
24 subject to the same or similar written policies and/or guidelines.' RCC Decl., Exhs. 12-14, 16-
25 17, 19- 20, Declaration ofR. Craig Clark ("RCC Decl"), Exhibit 2, Kmeger Depo., pages 74-
26 76, lines 14-6. As a policy and practice, Pacific Bell subjects all Premises Technicians in the
27
' It is important to note that the guideline docunients state that "Premises Technicians are expected to
28 follow these Guidelines, as well as all Company Policies." RCC Decl., Exhs. 13-14,16-17.
10
PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION;
MEMORANDUM OF POINTS AND AUTHORITIES
1 State to the same or similar performance standards, which are set by Pacific Bell and used to
2 evaluate Premises Technicians. RCC Decl. at Exhs. 9, 12-18, 20; Kmeger Depo. at 104:23-
3 105:9; Hill Depo. at 11:5-10; RCC Decl., Exh. 4, Thomas Depo., page 9, lines 8-15; RCC
4 Decl., Exh. 5, Banish Depo., pages 11-12, lines 18 to 8; see also Plft's Compen. Decls.
5 Moreover, Plaintiff discovered that Pacific Bell's performance targets are unrealistic as
6 they did not permit enough time for Premises Technicians to complete their assigned jobs
7 within the allotted time and take the legally required breaks. Hudson Decl. at 14; Longo
8 Decl. at 20. Pacific BeU's performance standards also serve as both a coercive mechanism
9 and an incentive for Premises Technicians to skip or minimize their legally protected breaks
10 and to work off the clock. Hudson Decl. at 114, 13, 15; Plft's Compen. Decls. Despite the fact
11 that Defendant knew that its performance standards were pressuring and impeding Premises
12 Technicians from taking their legally protected breaks and causing Premises Technicians to
13 work off the clock, Pacific Bell failed to take any corrective measures and/or compensate
14 Premises Technicians accordingly. RCC Decl. at Exh. 7; This is tme despite the fact that
15 Defendant's time records show that Premises Technicians took late meal periods and missed
16 meal periods. See e.g. RCC Decl. at Exhs. 6, 8.
17 Based on Plaintiffs experience, Plaintiffhas brought this class action on behalf of
18 himself and putative class members ofthe classes and subclasses proposed herein. Plaintiff
19 alleges that Defendant systematically failed to (1) provide legally compliant meal periods, or
20 compensation in lieu thereof; (2) provide legally compliant rest breaks, or compensation in lieu
21 thereof; (3) adequately compensate Premises Technicians for all hours worked; (4) pay all
22 wages due upon termination of the employment relationship; and (5) provide accurate itemized
23 wage statements. See generally First Amended Complaint. Plaintiff also alleges that Pacific
24 Bell's conduct (6) violates Califomia's Unfair Competition Law ("UCL"). Id. Accordingly,
25 Plaintiff seeks certification of all current and former non-exempt employees ofDefendant who
26 held the position of Premises Technician in the state of Califomia who were subject to
27 Defendant's performance standards at any time during the period ofOctober 24, 2012 through
28
11
PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION;
MEMORANDUM OF POINTS AND AUTHORITIES
1 the last day of trial, or any date that the Court deems just and proper ("Class Period"),
2 including the classes and sub-classes identified in the Notice.
3 B. Common Evidence from Which Plaintiffs Claims will be Proven
4 Pacific Bell has employed approximately 6,000 non-exempt Premises Technicians in
5 the state of Califomia during the Class Period. Kmeger Depo. at 181:22-24. All Premises
6 Technicians in Califomia are subject to the same or similar job duties (Hill Depo. at 55:1-17;
7 Hudson Decl. at 111; Plft's Compen. Decls.), the same or similar written policies and
8 guidelines (RCC Decl. at Exhs. 12-14, 16-17, 19-21; Kmeger Depo. at 74:24-75:3), and the
9 same or similar performance standards and targets (RCC Decl. at Exhs. 9, 10, 14; Banish
10 Depo. at 10:18-25, 11:18-25; Hill Depo. at 12:22-13:2; Thomas Depo. at 9:8-15).
11 Although, Defendant's written policies appear facially compliant with Califomia law
12 (see RCC Decl., Exhs. 19-20), the evidence uncovered by Plaintiff clearly shows that Pacific
13 BeU's written policies are in direct conflict with Califomia law, as Pacific Bell does not
14 relinquish control over Premises Technicians (RCC Decl., Exhs 12-14; Kmeger Depo. at
15 237:23-238:3), nor does Pacific Bell compensate Premises Technicians in the Home Dispatch
16 Program for travel time spentfransportingequipment and goods on behalf ofPacific Bell
17 (RCC Decl., Exhs. 16-17; Thomas Depo. at 102:9-13; Banish Depo. at 62:17-63:6).
18 Additionally, Pacific Bell has a common policy and practice that requires Premises
19 Technicians to "meet and/or exceed" the performance standards and targets set by Pacific
20 Bell.2 RCC Decl. Exhs. 9-17; Kmeger Depo. at 104:23-105:9. Pacific BeU's uniform policy
21 and practice is contrary to Califomia law as it coerces, incentivizes, and/or otherwise
22 encourages Premises Technicians to delay or skip their legaUy compliant breaks and to work
23 off the clock. See Plft's Compen. Decls.; RCC Decl. at Exhs 6, 9; Hill Depo. at 78:20-23.
24 This is largely because all Premises Technicians are scored from zero to one hundred on
25 (1) safety, (2) quality, (3) customer mles, (4) dispatch efficiency, and (5) efficiency. Banish
26 Depo. at 10:18-25, 11:18-25; HiU Depo. at 12:22-13:2, 55:1-14; Thomas Depo. at 9:8-15. For
27
^ Targets typically change at the beginning of the year. Hill Depo. at 11:11-21. The tasks are the same
28 but the expectations for the time to complete the tasks (targets) change. Thomas Depo. at 79:15-19.
12
PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION;
MEMORANDUM OF POINTS AND AUTHORITIES
1 example, most recently Pacific Bell required Premises Technicians to achieve a minimum
2 score of 89% in customer mles (i.e. customer satisfaction). See RCC Decl., Exh. 9; Hill Depo.
3 at 15:8-10; Kmeger Depo. at 45:2-13. However, the only way to achieve the target is to obtain
4 a nearly perfect score on the customer surveys, which asks the customer to rate the technician
5 from zero to ten. A Premises Technicians can only receive one hundred points if they receive a
6 score of nine or ten. Hill Depo. at 14:14-15:10; Thomas Depo. at 86:16-87:6. Moreover,
7 because customer surveys are conducted randomly and only a few are conducted per Premises
8 Technician, Premises Technicians are forced to place customer satisfaction before their legal
9 right to breaks. Hill Depo. at 16:12-17:2; Thomas Depo. at 23:18-25. Additionally, Premises
10 Technicians are instmcted to perform as many jobs as efficiently as possible, in a manner that
11 ensures that customers do not call back for repeat services. Hudson Decl. at 121, Kmeger
12 Depo. at 67:22-68:3. As a result ofthe extreme pressure to meet the targets set by Pacific Bell,
13 many Premises Technicians become stressed and fearful. See e.g. Rodriguez Decl. at Tf 11
14 (sfress and fearfromperformance standards caused health issues). Ultimately, Pacific BeU's
15 policy and practice forces Premises Technicians to almost always be "on dispatch," to work off
16 the clock, and to forgo or delay lawful off-duty meal and rest periods. Plft's Compen. Decls.
17 Premises Technicians are also incentivized to satisfy and exceed the targets set by Pacific Bell
18 by offering rewards and bonuses.^ See e.g. Torres Decl. at Tf 19 (encouraged to "fight it out" for
19 the top percentage scores and rewards); RCC Decl., Exhs. 11,15, Hill Depo. at 78:20-23.
20 However, failing to satisfy the targets set by Pacific Bell could result in disciplinary
21 action, up to and including termination. Plft's Compen. Decls.; Kmeger Depo. at 106:10-19;
22 Hill Depo. at 11:5-10. This practice clearly impedes and/or discourages Premises Technicians
23 from taking legally compliant breaks, as well as encourages off the clock work. For example,
24 for a portion ofthe Class Period, Defendant used a quintile system, where in Pacific BeU
25 ranked Premises Technicians against one another. Kmeger Depo. at 110:9-15; Hill Depo. at
26
27 ^ From 2012 to approximately September 2015 Pacific BeU's incentive program was called the Five
Star /Four Star Program. Thereafter, implemented a different incentive program known as "you Earn.'
28 5eeRCC Decl., Exhs. 11, 15.
13
PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION;
MEMORANDUM OF POINTS AND AUTHORITIES
1 28:24-29:1. If a Premises Technician fell in the bottom twenty percent, regardless of whether
2 they actually satisfied the performance targets set by Pacific Bell, they were subject to
3 discipline and possibly termination. Krueger Depo. at 106:10-19; HiU Depo. at 26:8-19; 37:12-
4 20; See e.g. Davis Decl. Tf 10 (given remedial waming of dismissal); Jewette Decl. at Tf 10
5 (Premises Technicians for low scores); see also Longo Decl. at Tf 10; Semak Decl. at Tf 10;
6 Vandehey Decl. at Tf 12. In fact. Pacific Bell has terminated Premises Technicians for
7 unsatisfactory performance scores. RCC Decl., Exh. 3; Hudson Depo at 135:16-136:8; Dockter
8 Decl. at TI 10; Gentry Decl. at Tf 11; Nastor Decl. at Tf 10; Schuette Decl. at Tf 10.
9 Pacific Bell is undoubtedly aware that Premises Technicians experience difficulty and
10 extreme stress to satisfy the unrealistic targets. Pacific Bell also knows that as a result.
11 Premises Technicians delay or even skip legally required breaks and often work off the clock.
12 See e.g. Hudson Decl. at Tf 31 (complained to manager); Hudson Depo. at 168:6-12
13 (complained to union representatives); Davis Decl. at TI 16; Dominguez Decl. at Til6; Ector
14 Decl. at TI 15; Estioko Decl. at Tf 15; L. Lara Decl. at Tf 17; Medina Decl. at 117; Phillips Decl.
15 at 116; Reyes Decl. at Tf 16; Semak Decl. at Tf 16; Vandehey Decl. at 122. Furthermore,
16 employee time records provided notice to Pacific Bell that Premises Technicians were taking
17 non-compliant meal periods.'' For example, according to the documents produced by
18 Defendant, Plaintiff experienced approximately 275 meal period violations during his
19 employment (151 occurrences of meal periods taken after the fifth hour of work; 2 instances of
20 missed first meal periods; 122 occasions where he missed a second meal period).^ RCC Decl.
21 at Exh. 6; Kmeger Depo. at 131:7-133:13, 133:17-135:17, 139:16-24, 167:5-168:20; 5ee a/w
22 RCC Decl. at Exh. 8 (excerpts of employee time records showing approximately 765 meal
23 period violations). However, Plaintiff and other putative class members were not paid for non-
24 compliant meal and rest periods. Plft's. Compend. Decls.; RCC Decl., Exh. 7; Hill Depo. at
25 195:5-9; Thomas Depo. at 19:13-16; Banish Depo at 54:18-21. Moreover, Pacific Bell's time
26
•* Employee time and payroll records are maintained in the same way. Krueger Depo. at 127:9-128:9.
27 ^ It appears that Plaintiff does not have a signed "Voluntary Waiver of Meal Period" form onfilewith
Pacific Bell, as the document was not produced by Defendant in response to Request for Production
28 No. 1.
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PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION;
MEMORANDUM OF POINTS AND AUTHORITIES
1 keeping records. Defendant's dispatch records, performance data, and Vehicle Tracking
2 System data^ allows for the daily activities of Premises Technicians to be reconstmcted. From
3 the compilation of data Plaintiff will be able to show and determine whether Premises
4 Technicians were provided with the reasonable opportunity to take legally compliant breaks.
5 As such, the compilation of data is common and sfraightforward evidence that can be used to
6 uniformly determine liability and damages,
7 m. LEGAL STANDARD
8 A case may proceed as a class action in Califomia "when the question is one of a
9 common or general interest, of many persons, or when the parties are numerous, and it is
10 impracticable to bring them all before the court. Code Civ. Proc. § 382. It is well established
11 that in Califomia the proponent of class certification must demonstrate: (1) a well-defined
12 community of interest; (2) the existence of an ascertainable class; and (3) that class
13 certification is the superior altemative. Brinker Restaurant Corp. v. Superior Court (2012) 53
14 Cal.4th 1004, 1021. At the class certification stage the question is whether the action is
15 suitable for resolution on a class-wide basis, not whether the action is legally or factually
16 meritorious. Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 439-440. In fact, the Court is
17 only permitted peek into the merits of the action when it is necessary to resolve any legal or
18 factual issues that are necessary to determine whether certification is proper. Brinker, 53
19 CaUthat 1024.
20 rv. THE ELEMENTS FOR CLASS CERTIFICATION ARE SATISFIED
21 A. Each of the Proposed Classes Have a Well-Defined Community of Interest
22 The community of interest requirement tums on three factors (1) predominate of
23 common questions of law or fact; (2) typicality of claims or defenses; and (3) adequacy of
24 representation. Brinker, 53 Cal.4th at 1021.
25
26 * Pacific Bell's Vehicle Tracking System ("VTS"), is similar to GPS, that is located in each ofthe
service vehicles and electronic devices. The VTS tracks the movement of the vehicle anytime the
27 vehicle is moving at a speed of at leastfivemiles per hour. Hill Depo. at 72:1-22.
^ Plaintiffhas requested but has yet to receive all of the data necessary to conduct an adequate analysis
28 to present to the court.
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PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION;
MEMORANDUM OF POINTS AND AUTHORITIES
1 1. Common Ouestions of Law and Fact Predominate for Each Class
2 As a general mle if defendant's liability can be determined on facts common to all
3 putative class members, then a class will be certified even if the members must individually
4 prove their damages. Bradley v. Networkers Internat. LLC (2012) 211 Cal.App.4th 1129, 1142
5 (emphasis added).
6 1. Pacific Bell has a Common Practice of Failing to Provide Premises
7 Technicians with the Reasonable Opportunity to Take Lawful Off-Duty
8 Meal Periods
9 Labor Code section 512 requires employers to provide a meal period of not less than
10 thirty-minutes to employees who work more than five hours in a day. Section 512 also requires
11 employers to provide a second thirty-minute meal period when an employee works more than
12 10 hours, except if the employee works less than twelve hours and the second meal period is
13 waived by mutual consent and the first meal period was not waived. The Califomia Supreme
14 Court has held that an employer's obligation under section 512 is satisfied when the employer
15 relieves its employees of all duty, relinquishes control over their activities, permits them a
16 reasonable opportunity to take an unintermpted thirty-minute meal break, and does not impede
17 or discourage them from doing so. Brinker, 53 Cal.4th at 1040. Although employers are not
18 required to "police" meal periods, employers cannot undermine a formal policy of providing
19 meal breaks by pressuring employees to perform their duties in ways that omit breaks. Id.
20 Plaintiff seeks to certify a Non-Compliant Meal Period Class, a Late Meal Period Sub-
21 Class, a Missed Meal Period Sub-Class and a Missed Second Meal Period Class. First, Pacific
22 BeU's written policies fail to relinquish confrol over Premises Technicians during meal breaks,
23 as Defendant's written policy unreasonably restricts where a Premises Technician can travel
24 during meal and rest breaks, without prior approval. See RCC Exhs. 12-14; Rodriguez Decl. at
25 Tf 15. Pacific BeU's written policy further restricts the number of vehicles and individuals
26 permitted at an establishment during breaks. RCC Exhs. 12, 13. Thus, the common question to
27 all putative class members is whether Pacific Bell's written policies violate Califomia law.
28
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PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION;
MEMORANDUM OF POINTS AND AUTHORITIES
1 Second, Pacific BeU's standardized practice of imposing performance standards and
2 impracticable targets upon Premises Technicians clearly violates the policy set forth in
3 Brinker. The common evidence shows that Pacific Bell's performance standards and associated
4 metrics pressure and otherwise encourage Premises Technicians to (1) forgo off duty meal
5 periods; (2) take meal periods after the fifth hour of work; (3) skip first meal periods; and (4)
6 miss second meal periods. For example, Pacific Bell requires Premises Technicians to achieve
7 a minimum score of 89% in customer satisfaction, but the only way to achieve the target is to
8 obtain a nearly perfect score. As a result. Premises Technicians are pressured to place customer
9 satisfaction before their legal right to breaks. See e.g. Kmeger Depo. at 43:1-10. This causes
10 Premises Technicians to fear that if they leave a job site their targets would not be satisfied
11 because a customer would provide a poor review, as such Premises Technicians are compelled
12 to remain at thejob site and forgo timely off duty meal periods. See e.g. L. Lara Decl. at Tf 16
13 (could not leave a customer's house in the middle of a job because had to provide excellent
14 service); Bui Decl. at TI 15; Medina Decl. at TI 15; McGee Decl. at TI 11; Vazquez Decl. at TI 15;
15 Schuette Decl. at TI 15; A. Lara Decl. at TI 17.
16 Pacific Bell's focus on efficiency and customer satisfaction also causes Premises
17 Technicians to participate in work related activities during their meal periods. For example,
18 many Premises Technicians have expressed that they have had to stay in the "queue" for
19 technical support during a meal period. Kmeger Depo. at 56:15-57:3, 58:1-14; Silva Decl. at TI
20 14; Estioko Decl. at TI 14; Reyes Decl. at TI 15; McGee Decl. at Tf 14. Premises Technicians'
21 meal breaks were also intermpted by managers. See e.g. Phillips Decl. at TI 7 (received calls
22 during meal periods, was reprimanded and told he must always respond); Schuette Decl. at TI 7;
23 Silva Decl. at Tf 7; Nastor Decl. at TI 7.
24 Additionally, Pacific Bell's practice of ranking Premises Technicians against one
25 another further serves to undermine Defendant's formal policy by creating a practice that
26 induces Premises Technicians to forgo legally protected breaks and to work off the clock and
27 rewards them for achieving the set target. See Hudson Decl. at TITI 14,15; Davis Decl. at TI 15;
28 Phillips Decl. at TI 9.
17
PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION;
MEMORANDUM OF POINTS AND AUTHORITIES
1 Third, despite the pressure faced by Premises Technicians many did their best to take
2 meal periods when feasible and recorded late and missed meal periods when possible. This is
3 evidenced by Defendant's time keeping and payroll records. For example, during Plaintiffs
4 employment he recorded 151 instances where he took a meal period after the fifth hour of work
5 and at least 125 occasions where he was entitled to but did not receive a second meal period.
6 SeeRCC Decl. Exh. 6; Kmeger Depo. at 131:7-133:13, 133:17-135:17, 139:16-24, 167:5-
7 168:20. Most importantly on at least 24 occasions. Plaintiffs time records were reviewed and
8 approved by Plaintiffs supervisor, Mr. Hill, who does not recall approving one meal period
9 premium in the five years he has been a supervisor. RCC Decl. Exh. 7; Kmeger Depo at
10 156:12-22,169:16-23; Hill Depo. at 195:5-9. The excerpt of sample employee records also
11 show that Premises Technicians consistentiy logged late and missed meal periods. See RCC
12 Decl., Exh 9. In addition to the time records. Pacific Bell also had notice that Premises
13 Technicians were experiencing difficulty taking meal periods and meeting performance targets.
14 However, Defendant refuses to acknowledge the situation. Gentry Decl. at TI 16 (told manager
15 not getting breaks due to target requirements); Phillips Decl. at TI 9. Despite having this
16 information available to them. Pacific Bell has failed to pay premium wages to Plaintiff and
17 other putative class members. RCC Decl. Exh. 7; Plft's Compend. Decls. In fact, both Mr.
18 Thomas and Mr. Banish do not recall approving meal period premiums. Thomas Depo. at
19 19:13-16; Banish Depo at 54:18-21. As such, the common question is whether Pacific Bell's
20 performance standards prohibit the reasonable opportunity to take lawful meal periods.
21 2. Pacific Bell has a Uniform Practice of Failing to A uthorize and Permit
22 Off-Duty Rest Periods
23 Industrial Welfare Commission Wage Order No. 7-2001 requires employers to
24 authorize and permit off-duty rest periods. See also Brinker, 53 Cal.4th at 1033. Califomia law
25 requires that employers relinquish any and all control over how employees spend their break
26 time and must relieve employees of all duties including any obligations of remaining on call.
27 Augustus V. ABM Security Services, Inc. (2016) 2 Cal.5th 257, 269, 272. Waiver however
28 cannot arise where a required rest break was never authorized because an employee has no
18
PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION;
MEMORANDUM OF POINTS AND AUTHORITIES
1 opporttanity to decline it. Bradley, 211 Cal.App.4th at 1144. When an employee does not
2 receive a legally compliant rest period, the employer is obligated to immediately pay a
3 premium wage as outlined by Labor Code section 226.7. Murphy v. Kenneth Cole Productions,
4 Inc. (2007) 40 Cal.4tii 1094, 1108 (emphasis added).
5 Here, Plaintiff seeks to certify a Non-Compliant Rest Period Class. As indicated above.
6 Pacific BeU's written policies fail to relinquish control over Premises Technicians during rest
7 breaks, as Defendant's written policy unreasonably restricts where a Premises Technician can
8 travel during meal and rest breaks. See RCC Exhs. 12-14; Rodriguez Decl. at TI 15.
9 Furthermore, Pacific Bell's written policies and practices require Premises Technicians to carry
10 the company device on their person. Id.; Thun Decl. at Tf 14. These policies directly conflict
11 with the holdings in Augustus and Brinker. Thus, the common question is whether
12 Defendant's written policies violate the law.
13 Pacific Bell's practice and implementation of its written rest break policy is deeply
14 flawed, as Pacific Bell's performance standards exhort Premises Technicians to work in a
15 manner that maximizes their scores and admonishes them by doing anything that might
16 jeopardize the satisfaction of the target scores. Hudson Decl. at TI 17. As discussed above,
17 many Premises Technicians feel pressured to work through their rest breaks for fear that they
18 will receive a poor customer satisfaction score if they leave in the middle of a job. See Medina
19 Decl. at Tf 8; Bui Decl. at Tf 13; Dominguez Decl. at 112; Bailey Decl. at Tf 15; Burdge Decl. at TI
20 11. Additionally, to achieve the efficiency and quality targets. Premises Technicians participate
21 in work related activities during rest periods, such as answering calls and text messages from
22 customers and managers, and waiting in the queue to receive technical assistance, in order to
23 maximize their scores and meet set targets. Brown Decl. at TI 13; Torres Decl. at TI 18;
24 Rodriguez Decl. at TI 18; Burdge Decl. at TI 14; Vazquez Decl. at TI 18. Moreover, Pacific BeU's
25 ranking system compels Premises Technicians to work through their rest breaks. See Ector
26 Decl. at TI 17; Torres Decl. at TITI 18, 19; Dockter Decl. at TI 16.
27 On a number of occasions Premises Technicians have complained to Pacific Bell that
28 they are unable to take rest breaks due to the extreme pressure to satisfy the performance
19
PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION;
MEMORANDUM OF POINTS AND AUTHORITIES
1 standards. Dockter Decl. at TI 18; Vandehey Decl. at Tf 22. However, Pacific Bell has not paid
2 rest period premiums. Hill Depo at 196:9-16; Banish Depo at 54:23-25; Thomas Depo. at
3 19:13-16. Pacific Bell continues to implement its performance standards and target practices
4 despite the fact that it knows that Premises Technicians have a difficult time meeting the
5 targets while taking legally compliant rest breaks. Pacific BeU also continues to refuse to pay
6 rest period premiums to Premises Technicians. Plft's. Compend. Decls. As such, the common
7 question is whether Pacific Bell authorizes and permits off-duty rest periods when it strictly
8 enforces its performance standards.
9 3. Pacific Bell has a Uniform Practice of Failing to Pay Premises
10 Technicians for All Hours Worked
11 The Labor Code codifies Califomia's public policy of prompt payment of wages. See
12 Labor Code § 204. Pursuant to the Labor Code, employers are required to pay all employees a
13 fixed minimum wage for all time engaged in worked. Labor Code § 1197. AdditionaUy,
14 employees who work more than eight hours in one day, or forty hours in a week are entitled to
15 compensation at time and one half the employee's regular rate of pay. Labor Code § 1198.
16 Although, travel time to and from a work is typically not compensable, when the fravel
17 requires an employee to deliver "any equipment, goods or
Preview
1 R. Craig Clark (SBN 129219) cclark(®clarklawyers.com 2 JessicaR. Corrales (SBN 298237) jcorrales(^clarklawyers.com 3 Monique R. Rodriguez (SBN 304223) mrodriguez(Sclarklawyers.com 4 C L A R K LAW GROUP 205 West Date Street FlLlED/ENDORSED 5 San Diego, CA 92101 Telephone: (619) 239-1321 FEB 14 2018 6 Facsimile: (888) 273-4554 7 Walter Haines (SBN 071075) By: E. Toscano Deputy Clerk UNITED E M P L O Y E E S LAW GROUP 8 5500 Bolsa Avenue, Suite 201 Huntington Beach, CA 92649 9 Telephone: (562) 256-1047 Facsimile: (562) 256-1006 10 Attorneys for Plaintiff 11 12 SUPERIOR COURT OF THE STATE OF CALIFORNIA 13 IN AND FOR THE COUNTY OF SACRAMENTO 14 JASON HUDSON, as an individual, on CASE NO.: 34-2016-00202203 15 behalf of himself, and all persons similarly situated, [Assigned to the Hon. Alan G. Perkins, Dept. 35] 16 CLASS & REPRESENTATIVE ACTION Plaintiff, PLAINTIFF JASON HUDSON'S NOTICE 17 OF MOTION AND MOTION FOR CLASS CERTIFICATION; MEMORANDUM OF 18 POINTS AND AUTHORITIES 19 PACIFIC BELL TELEPHONE COMPANY, a Califomia corporation Date: April 20, 2018 Time: 10:30 a.m. 20 authorized to do business in the state of Califomia, and DOES 1 to 10 inclusive. Dep't: 35 21 Defendant. [Filed and served concurrently herewith the 22 Declaration of R. Craig Clark ISO Plaintiffs Motion for Class Certification, the Declaration of 23 Jason Hudson ISO Plaintiffs Motion for Class 24 Certification, the Compendium of Declarations ISO Plaintiff's Motion for Class Certification, 25 Plaintiffs Request for Judicial Notice ISO Plaintiffs Motion for Class Certification, the 26 Declaration of R. Craig Clark ISO Plaintiffs 27 Request for Judicial Notice.] 28 1 PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION; MEMORANDUM OF POINTS AND AUTHORITIES 1 TO THE COURT, ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 2 PLEASE TAKE NOTICE that on April 20, 2018 at 10:30 a.m., in Department 35 ofthe 3 above-captioned Court, located at 720 9th Street, Sacramento, Califomia 95814, Plaintiff Jason 4 Hudson ("Plaintiff") will seek an order certifying the following classes and/or subclasses in 5 this class action pursuant to Califomia Code of Civil Procedure section 382 and Califomia 6 Rules of Court, Rule 3.764. Plaintiff seeks certification of the following classes and/or 7 subclasses: 8 1. Non-Compliant Meal Period Class: All current and former non-exempt 9 employees ofDefendant who held the position of Premises Technician in the state of Califomia who were subject to Defendant's performance standards and who worked 10 more than six (6) hours in a work-day at any time during the period ofOctober 24, 2012 11 through the last day of trial, or any date the Court deems just and proper. 12 a. Late Meal Period Sub-Class: All current and former non-exempt employees of Defendant who held the position of Premises Technician in the state of Califomia 13 who were subject to Defendant's performance standards, who worked more than 14 six (6) hours in a work-day, and whose time records show that they were provided with a meal period after the 5* hour of work at any time during the 15 period of October 24, 2012 through the last day of trial, or any date the Court deems just and proper. 16 17 b. Missed Meal Period Sub-Class: All current and former non-exempt employees of Defendant who held the position of Premises Technician in the state of California 18 who were subject to Defendant's performance standards, who worked more than 19 six (6) hours in a work-day, and whose time records show that they did not log out for a meal period at any time during the period of October 24, 2012 through 20 the last day of trial, or any date the Court deems just and proper. 21 2. Missed Second Meal Period Class: All current and former non-exempt 22 employees ofDefendant who held the position of Premises Technician in the state of Califomia who were subject to Defendant's perfonnance standards and who worked 23 more than twelve (12) hours in a work-day at any time during the period of October 24, 24 2012 through the last day of trial, or any date the Court deems just and proper. 25 3. Non-Compliant Rest Period Class: All current and former non-exempt 26 employees ofDefendant who held the position of Premises Technician in the state of Califomia who were subject to Defendant's performance standards and who worked 27 four (4) or more hours in a work-day at any time during the period ofOctober 24, 2012 through the last day of trial, or any date the Court deems just and proper. 28 PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION; MEMORANDUM OF POINTS AND AUTHORITIES 4. Unpaid Wages Class: All current and former non-exempt employees of 2 Defendant who held the position of Premises Technician in the state of Califomia who were subject to Defendant's performance standards and were not paid for all hours worked at any time during the period of October 24, 2012 through the last day of trial, 4 or any date the Court deems just and proper. 5 a. Equipment and Delivery Sub-Class: All current and former non-exempt employees ofDefendant who held the position of Premises Technician in the 6 state of Califomia and who were part of the Home Dispatch Program, who were 7 subject to Defendant's performance standards and were not paid for all hours worked at any time during the period ofOctober 24,2012 through the last day of ^ trial, or any date the Court deems just and proper. 9 5. Waiting Time Class: All former non-exempt employees ofDefendant who held 10 the position of Premises Technician in the state of Califomia who were subject to 11 Defendant's performance standards and who did not receive any and all wages owed upon separation of employment at any time during the period ofOctober 24, 2012 12 through the last day of trial, or any date the Court deems just and proper. 13 6. Non-Compliant Wage Statement Class: All current and former non-exempt j4 employees ofDefendant who held the position of Premises Technician in the state of Califomia who were subject to Defendant's performance standards and who did not 15 receive accurate itemized wage statements at any time during the period of October 24, 2012 through the last day of trial, or any date the Court deems just and proper. 16 17 7. Unfair Competition Class: All current and former non-exempt employees of Defendant who held the position of Premises Technician in the state of Califomia who 18 were subject to Defendant's performance standards and who were subjected to Defendant's unlawful, unfair, orfraudulentbusiness practices at any time during the period of October 24, 2012 through the last day of trial, or any date the Court deems just 20 and proper. 21 a. Unlawfiil Practices Sub-Class: All current and former non-exempt 22 employees ofDefendant who held the position of Premises Technician in the state of Califomia who were subject to Defendant's performance standards and 23 who were subjected to Defendant's unlawful business practices at any time 24 during the period of October 24,2012 through the last day of trial, or any date the Court deems just and proper. 25 b. Unfair Practices Sub-Class: All current and former non-exempt employees ofDefendant who held the position of Premises Technician in the state of 27 Califomia who were subject to Defendant's performance standards and who were subjected to Defendant's unfair business practices at any time during the period 28 PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION; MEMORANDUM OF POINTS AND AUTHORITIES of October 24, 2012 through the last day of trial, or any date the Court deems just 1 and proper. 2 c. Fraudulent Practices Sub-Class: All current and former non-exempt 3 employees ofDefendant who held the position of Premises Technician in the 4 state of Califomia who were subject to Defendant's performance standards and who were subjected to Defendant'sfraudulentbusiness practices at any time 5 during the period of October 24,2012 through the last day of trial, or any date the Court deems just and proper. 6 7 This Motion is based upon this Notice of Motion, the Memorandum of Points and 8 Authorities filed herewith, the declarations in support of this Motion, the Request for Judicial 9 Notice, the pleadings and papers filed in this Action, and upon any such other evidence and 10 argument that may be presented to the Court at the time of the hearing. 11 Notice of Tentative Ruling System 12 Pursuant to Local Rule 1.06(A), the Court will make a tentative mling on the merits of 13 this matter by 2:00 p.m., the court day before the hearing. The complete text of the tentative 14 mlings for the department may be downloaded off the Court's website. Ifthe party does not 15 have online access, they may call the dedicated phone number for the department as referenced 16 in the local telephone directory between the hours of 2:00 p.m. and 4:00 p.m. on the court day 17 before the hearing and receive the tentative mling. If you do not call the court and the 18 opposing party by 4:00 p.m. the court day before the hearing, no hearing will be held. 19 20 Dated: Febmary 14,2018 CLARK LAW ^^ROUP 21 22 By: R. Craig Olark 23 Jessica R. Corrales Monique R. Rodriguez 24 Attorneys for Plaintiff 25 26 27 28 PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION; MEMORANDUM OF POINTS AND AUTHORITIES 1 TABLE OF CONTENTS 2 I. INTRODUCTION 9 3 II. 4 III. 5 rv. 6 A. Each ofthe Proposed Classes Have a Weil-Defined Community of Interest 15 7 1. Common Questions of Law and Fact Predominate for Each Class 16 8 i. Pacific Bell has a Common Practice of Failing to Provide Premises 9 Technicians with the Reasonable Opportunity to Take Lawful Off-Duty 10 Meal Periods 16 11 ii. Pacific Bell has a Uniform Practice of Failing to Authorize and Permit 12 Off-Duty Rest Periods 18 13 iii. Pacific Bell has a Uniform Practice of Failing to Pay Premises 14 Technicians for All Hours Worked 20 15 iv. Pacific Bell has a Common Practice of Failing to Pay All Wages Owed 16 Upon Termination of the Employment Relationship 21 17 V. Pacific Bell has a Uniform Practice of Failing to Provide Premises 18 Technicians with Accurate Itemized Wage Statements 22 19 vi. Pacific Bell Violated California's Unfair Competition Law 23 20 2. Plaintiffs Claims are Typical of Those of the Proposed Classes 25 21 3. Plaintiff and His Counsel are Adequate to Represent the Proposed Classes ... 25 22 B. The Proposed Classes are Ascertainable and Sufficiently Numerous 26 23 C. Class Certification is a Superior Way to Resolve the Dispute 27 24 V. PLAINTIFF'S PRIVATE ATTORNEYS GENERAL ACT OF 2004 CLAIMS .28 25 VI. CONCLUSION 28 26 27 28 PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION; MEMORANDUM OF POINTS AND AUTHORITIES 1 T A B L E OF AUTHORITIES 2 CASES 3 Abdulla V. U.S. Sec. Assoc. (2013) 731 F.3d 952 20 4 •J 5 Armenta v. Osmose (2005) 135 Cal.App.4th 314 : 22 6 7 Augustus V. ABM Security Services, Inc. (2016)2Cal.5th257 18, 19 8 9 Blakemore v. Superior Court (2005) 129 Cal.App.4th 36 24 10 11 Bradley v. Networkers Internat. LLC (2012)211 Cal.App.4th 1129 16, 19 12 13 Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004 15, 16, 17, 18, 19, 20 14 15 Bufil V. Dollar Fin. Grp., Inc. (2008) 162 Cal.App.4th 1193 26, 27 16 17 B. W.L Custom Kitchen v. Owens-Illinois, Inc. (1987) 191 Cal.App.3d 1341 25 18 19 CashCall, Inc. v. Superior Court (2008) 159 Cal. App.4th 273 26 20 21 Cel-Tech Commc 'ns. Inc. v. Los Angeles Cellular Tel. Co. (1999) 20 CaUth 163 23 22 23 Duran V. U.S. Bank National Assn. (2014) 59 Cal.4th 1 27 24 25 Jones V. Farmers Ins. Exchange (2013) 221 Cal.App.4th 986 25 26 27 Kerr's Catering Service v. Department of Industrial Relations (1962)57Cal.2d319 22 28 6 PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION; MEMORANDUM OF POINTS AND AUTHORITIES 1 Linder v. Thrifty Oil Co. (2000)23 Cal.4th429 15 2 3 Lubin V. The Wackenhut Corp. (2016) 5 Cal.App.5th 926 20 4 5 Martinez v Joe's Crab Shak Holdings (2014) 231 Cal.App.4th 362 25 6 7 Mc Ghee v. Bank of America (1976) 60 Cal.App.3d 442 26 8 9 People V. Casa Blanca Convalescent Homes, Inc. (1984) 159 Cal.App.3d 509 24 10 11 Richmond v. Dar Industries, Inc. (1981)29 Cal.3d462 25 12 13 Safeway, Inc. v. Superior Court (2015) 238 Cal.App.4th 1138 24 14 15 Stewart v. San Luis Ambulance, Inc. (9th Cir. 2017) 878 F.3d 883 21 16 17 STATUTES 18 Califomia Business and Professions Code § 17200 11,23, 24,25 19 Califomia Labor Code § 201 22 20 Califomia Labor Code § 202 22 21 Califomia Labor Code § 203 21, 22 22 Califomia Labor Code § 204 20 23 Califomia Labor Code § 226 21, 22 24 Califomia Labor Code § 226.7 19,22, 23 25 Califomia Labor Code §512 16 26 Califomia Labor Code § 1174 27 27 CaHfomia Labor Code § 1197 20 28 Califomia Labor Code § 1198 20 7 PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION; MEMORANDUM OF POINTS AND AUTHORITIES 1 Califomia Labor Code § 2698 et seq 28 2 SECONDARY SOURCES 3 Industrial Welfare Commission Wage Order 7-2001 18, 27 4 DLSE Opinion Letter, 2013.04.22 20 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION; MEMORANDUM OF POINTS AND AUTHORITIES 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. INTRODUCTION 3 Plaintiff Jason Hudson's Motion for Class Certification ("Plaintiffs Motion") involves 4 approximately 6,000 non-exempt employees ofDefendant Pacific Bell Telephone Company 5 ("Defendant" or "Pacific Bell") who held the position of Premises Technician in the state of 6 Califomia. Premises Technicians are individuals who typically work alone, drive company 7 service vehicles, and install and repair home intemet, television, and other similar 8 telecommunications products. Plaintiffs Motion seeks to certify distinct but related classes 9 and sub-classes for violations ofthe Califomia Labor Code ("Labor Code") and Califomia 10 Business and Professions Code. 11 The violations have the same or similar pattem and impact on all putative class 12 members. Pacific Bell writes and mouths legally compliant Califomia policies for Premises 13 Technicians but then puts in place performance standards, targets and requirements, along with 14 time reporting systems, that make it simple, and almost necessary that Premises Technicians 15 report inaccurate information, while working off the clock and forgoing or delaying breaks. 16 Pacific Bell's performance standards and time reporting systems are apparently set up to 17 conceal violations. However, once Pacific Bell's scheme and practice is understood and the 18 evidence is evaluated, the violations are clear and common to all Premises Technicians. In 19 fact, the violations are quite straight forward and easy to prove once all ofthe data is properly 20 disclosed and aligned. 21 Plaintiffs Motion will explain the various ways the violations are caused and known by 22 Defendant for each of the proposed classes. For example, Pacific Bell imposes performance 23 standards, which compel and induce Premises Technicians to work through their required 24 breaks, to take late breaks, and/or to work off the clock in order to meet the targets set by 25 Pacific Bell. Moreover, the fact that Pacific Bell ranks Premises Technicians against each other 26 to ensure that a competitive element is put into play only solidifies PlaintifPs contention that 27 Pacific Bell impedes and otherwise discourages Premises Technicians from taking legally 28 compliant meal and rest breaks. PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION; MEMORANDUM OF POINTS AND AUTHORITIES 1 Though Defendant will undoubtedly assert that its written policies are legal and in 2 compliance with the mandates of Califomia law. Defendant's argument is severely flawed. 3 Califomia law clearly prohibits an employer from "exerting coercion against the taking of, 4 creating incentives to forego, or otherwise encouraging the skipping of legally protected 5 breaks." However, that is precisely what Pacific Bell has done and continues to do to Premises 6 Technicians. Most importantly, this practice is common to all putative class members. 7 The evidence discovered by Plaintiff further reveals that Pacific Bell not only knows 8 that the putative class members are not working in compliance with the Labor Code, but also 9 discloses that Pacific Bell intentionally set up policies and practices that dissuade Premises 10 Techniciansfromtaking legally complaint breaks and that Pacific Bell ultimately benefits from 11 the obscure stmcture. Pacific Bell's overlapping systems also seek to ensure that the violations 12 remain concealed. Ultimately, class certification should be granted since Defendant's liability 13 can be proven on questions of law and fact that are common to all putative class members. 14 H. FACTS SUPPORTING CERTIFICATION 15 A. Overview of Claims and Classes for Which Certification is Sought 16 Plaintiff Jason Hudson ("Plaintiff) was employed by Defendant Pacific Bell Telephone 17 Company dba AT&T as a Premises Technician in Woodland, Califomiafromapproximately 18 January 2014 until August 2015. Hudson Decl. at T| 10. During his employment, Plaintiff 19 leamed that all Premises Technicians in Califomia have the same or similar job 20 responsibilities, which includes the delivery, installation, upgrade and repair of television, 21 intemet, and other Pacific Bell telecommunication products. Hudson Decl. at 4, 11; see also 22 Plaintiffs Compendium of Declarations ISO Plaintiffs Motion for Class Certification ("Plft's 23 Compen. Decls."). Plaintiff also discovered that Premises Technicians in Califomia are 24 subject to the same or similar written policies and/or guidelines.' RCC Decl., Exhs. 12-14, 16- 25 17, 19- 20, Declaration ofR. Craig Clark ("RCC Decl"), Exhibit 2, Kmeger Depo., pages 74- 26 76, lines 14-6. As a policy and practice, Pacific Bell subjects all Premises Technicians in the 27 ' It is important to note that the guideline docunients state that "Premises Technicians are expected to 28 follow these Guidelines, as well as all Company Policies." RCC Decl., Exhs. 13-14,16-17. 10 PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION; MEMORANDUM OF POINTS AND AUTHORITIES 1 State to the same or similar performance standards, which are set by Pacific Bell and used to 2 evaluate Premises Technicians. RCC Decl. at Exhs. 9, 12-18, 20; Kmeger Depo. at 104:23- 3 105:9; Hill Depo. at 11:5-10; RCC Decl., Exh. 4, Thomas Depo., page 9, lines 8-15; RCC 4 Decl., Exh. 5, Banish Depo., pages 11-12, lines 18 to 8; see also Plft's Compen. Decls. 5 Moreover, Plaintiff discovered that Pacific Bell's performance targets are unrealistic as 6 they did not permit enough time for Premises Technicians to complete their assigned jobs 7 within the allotted time and take the legally required breaks. Hudson Decl. at 14; Longo 8 Decl. at 20. Pacific BeU's performance standards also serve as both a coercive mechanism 9 and an incentive for Premises Technicians to skip or minimize their legally protected breaks 10 and to work off the clock. Hudson Decl. at 114, 13, 15; Plft's Compen. Decls. Despite the fact 11 that Defendant knew that its performance standards were pressuring and impeding Premises 12 Technicians from taking their legally protected breaks and causing Premises Technicians to 13 work off the clock, Pacific Bell failed to take any corrective measures and/or compensate 14 Premises Technicians accordingly. RCC Decl. at Exh. 7; This is tme despite the fact that 15 Defendant's time records show that Premises Technicians took late meal periods and missed 16 meal periods. See e.g. RCC Decl. at Exhs. 6, 8. 17 Based on Plaintiffs experience, Plaintiffhas brought this class action on behalf of 18 himself and putative class members ofthe classes and subclasses proposed herein. Plaintiff 19 alleges that Defendant systematically failed to (1) provide legally compliant meal periods, or 20 compensation in lieu thereof; (2) provide legally compliant rest breaks, or compensation in lieu 21 thereof; (3) adequately compensate Premises Technicians for all hours worked; (4) pay all 22 wages due upon termination of the employment relationship; and (5) provide accurate itemized 23 wage statements. See generally First Amended Complaint. Plaintiff also alleges that Pacific 24 Bell's conduct (6) violates Califomia's Unfair Competition Law ("UCL"). Id. Accordingly, 25 Plaintiff seeks certification of all current and former non-exempt employees ofDefendant who 26 held the position of Premises Technician in the state of Califomia who were subject to 27 Defendant's performance standards at any time during the period ofOctober 24, 2012 through 28 11 PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION; MEMORANDUM OF POINTS AND AUTHORITIES 1 the last day of trial, or any date that the Court deems just and proper ("Class Period"), 2 including the classes and sub-classes identified in the Notice. 3 B. Common Evidence from Which Plaintiffs Claims will be Proven 4 Pacific Bell has employed approximately 6,000 non-exempt Premises Technicians in 5 the state of Califomia during the Class Period. Kmeger Depo. at 181:22-24. All Premises 6 Technicians in Califomia are subject to the same or similar job duties (Hill Depo. at 55:1-17; 7 Hudson Decl. at 111; Plft's Compen. Decls.), the same or similar written policies and 8 guidelines (RCC Decl. at Exhs. 12-14, 16-17, 19-21; Kmeger Depo. at 74:24-75:3), and the 9 same or similar performance standards and targets (RCC Decl. at Exhs. 9, 10, 14; Banish 10 Depo. at 10:18-25, 11:18-25; Hill Depo. at 12:22-13:2; Thomas Depo. at 9:8-15). 11 Although, Defendant's written policies appear facially compliant with Califomia law 12 (see RCC Decl., Exhs. 19-20), the evidence uncovered by Plaintiff clearly shows that Pacific 13 BeU's written policies are in direct conflict with Califomia law, as Pacific Bell does not 14 relinquish control over Premises Technicians (RCC Decl., Exhs 12-14; Kmeger Depo. at 15 237:23-238:3), nor does Pacific Bell compensate Premises Technicians in the Home Dispatch 16 Program for travel time spentfransportingequipment and goods on behalf ofPacific Bell 17 (RCC Decl., Exhs. 16-17; Thomas Depo. at 102:9-13; Banish Depo. at 62:17-63:6). 18 Additionally, Pacific Bell has a common policy and practice that requires Premises 19 Technicians to "meet and/or exceed" the performance standards and targets set by Pacific 20 Bell.2 RCC Decl. Exhs. 9-17; Kmeger Depo. at 104:23-105:9. Pacific BeU's uniform policy 21 and practice is contrary to Califomia law as it coerces, incentivizes, and/or otherwise 22 encourages Premises Technicians to delay or skip their legaUy compliant breaks and to work 23 off the clock. See Plft's Compen. Decls.; RCC Decl. at Exhs 6, 9; Hill Depo. at 78:20-23. 24 This is largely because all Premises Technicians are scored from zero to one hundred on 25 (1) safety, (2) quality, (3) customer mles, (4) dispatch efficiency, and (5) efficiency. Banish 26 Depo. at 10:18-25, 11:18-25; HiU Depo. at 12:22-13:2, 55:1-14; Thomas Depo. at 9:8-15. For 27 ^ Targets typically change at the beginning of the year. Hill Depo. at 11:11-21. The tasks are the same 28 but the expectations for the time to complete the tasks (targets) change. Thomas Depo. at 79:15-19. 12 PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION; MEMORANDUM OF POINTS AND AUTHORITIES 1 example, most recently Pacific Bell required Premises Technicians to achieve a minimum 2 score of 89% in customer mles (i.e. customer satisfaction). See RCC Decl., Exh. 9; Hill Depo. 3 at 15:8-10; Kmeger Depo. at 45:2-13. However, the only way to achieve the target is to obtain 4 a nearly perfect score on the customer surveys, which asks the customer to rate the technician 5 from zero to ten. A Premises Technicians can only receive one hundred points if they receive a 6 score of nine or ten. Hill Depo. at 14:14-15:10; Thomas Depo. at 86:16-87:6. Moreover, 7 because customer surveys are conducted randomly and only a few are conducted per Premises 8 Technician, Premises Technicians are forced to place customer satisfaction before their legal 9 right to breaks. Hill Depo. at 16:12-17:2; Thomas Depo. at 23:18-25. Additionally, Premises 10 Technicians are instmcted to perform as many jobs as efficiently as possible, in a manner that 11 ensures that customers do not call back for repeat services. Hudson Decl. at 121, Kmeger 12 Depo. at 67:22-68:3. As a result ofthe extreme pressure to meet the targets set by Pacific Bell, 13 many Premises Technicians become stressed and fearful. See e.g. Rodriguez Decl. at Tf 11 14 (sfress and fearfromperformance standards caused health issues). Ultimately, Pacific BeU's 15 policy and practice forces Premises Technicians to almost always be "on dispatch," to work off 16 the clock, and to forgo or delay lawful off-duty meal and rest periods. Plft's Compen. Decls. 17 Premises Technicians are also incentivized to satisfy and exceed the targets set by Pacific Bell 18 by offering rewards and bonuses.^ See e.g. Torres Decl. at Tf 19 (encouraged to "fight it out" for 19 the top percentage scores and rewards); RCC Decl., Exhs. 11,15, Hill Depo. at 78:20-23. 20 However, failing to satisfy the targets set by Pacific Bell could result in disciplinary 21 action, up to and including termination. Plft's Compen. Decls.; Kmeger Depo. at 106:10-19; 22 Hill Depo. at 11:5-10. This practice clearly impedes and/or discourages Premises Technicians 23 from taking legally compliant breaks, as well as encourages off the clock work. For example, 24 for a portion ofthe Class Period, Defendant used a quintile system, where in Pacific BeU 25 ranked Premises Technicians against one another. Kmeger Depo. at 110:9-15; Hill Depo. at 26 27 ^ From 2012 to approximately September 2015 Pacific BeU's incentive program was called the Five Star /Four Star Program. Thereafter, implemented a different incentive program known as "you Earn.' 28 5eeRCC Decl., Exhs. 11, 15. 13 PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION; MEMORANDUM OF POINTS AND AUTHORITIES 1 28:24-29:1. If a Premises Technician fell in the bottom twenty percent, regardless of whether 2 they actually satisfied the performance targets set by Pacific Bell, they were subject to 3 discipline and possibly termination. Krueger Depo. at 106:10-19; HiU Depo. at 26:8-19; 37:12- 4 20; See e.g. Davis Decl. Tf 10 (given remedial waming of dismissal); Jewette Decl. at Tf 10 5 (Premises Technicians for low scores); see also Longo Decl. at Tf 10; Semak Decl. at Tf 10; 6 Vandehey Decl. at Tf 12. In fact. Pacific Bell has terminated Premises Technicians for 7 unsatisfactory performance scores. RCC Decl., Exh. 3; Hudson Depo at 135:16-136:8; Dockter 8 Decl. at TI 10; Gentry Decl. at Tf 11; Nastor Decl. at Tf 10; Schuette Decl. at Tf 10. 9 Pacific Bell is undoubtedly aware that Premises Technicians experience difficulty and 10 extreme stress to satisfy the unrealistic targets. Pacific Bell also knows that as a result. 11 Premises Technicians delay or even skip legally required breaks and often work off the clock. 12 See e.g. Hudson Decl. at Tf 31 (complained to manager); Hudson Depo. at 168:6-12 13 (complained to union representatives); Davis Decl. at TI 16; Dominguez Decl. at Til6; Ector 14 Decl. at TI 15; Estioko Decl. at Tf 15; L. Lara Decl. at Tf 17; Medina Decl. at 117; Phillips Decl. 15 at 116; Reyes Decl. at Tf 16; Semak Decl. at Tf 16; Vandehey Decl. at 122. Furthermore, 16 employee time records provided notice to Pacific Bell that Premises Technicians were taking 17 non-compliant meal periods.'' For example, according to the documents produced by 18 Defendant, Plaintiff experienced approximately 275 meal period violations during his 19 employment (151 occurrences of meal periods taken after the fifth hour of work; 2 instances of 20 missed first meal periods; 122 occasions where he missed a second meal period).^ RCC Decl. 21 at Exh. 6; Kmeger Depo. at 131:7-133:13, 133:17-135:17, 139:16-24, 167:5-168:20; 5ee a/w 22 RCC Decl. at Exh. 8 (excerpts of employee time records showing approximately 765 meal 23 period violations). However, Plaintiff and other putative class members were not paid for non- 24 compliant meal and rest periods. Plft's. Compend. Decls.; RCC Decl., Exh. 7; Hill Depo. at 25 195:5-9; Thomas Depo. at 19:13-16; Banish Depo at 54:18-21. Moreover, Pacific Bell's time 26 •* Employee time and payroll records are maintained in the same way. Krueger Depo. at 127:9-128:9. 27 ^ It appears that Plaintiff does not have a signed "Voluntary Waiver of Meal Period" form onfilewith Pacific Bell, as the document was not produced by Defendant in response to Request for Production 28 No. 1. 14 PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION; MEMORANDUM OF POINTS AND AUTHORITIES 1 keeping records. Defendant's dispatch records, performance data, and Vehicle Tracking 2 System data^ allows for the daily activities of Premises Technicians to be reconstmcted. From 3 the compilation of data Plaintiff will be able to show and determine whether Premises 4 Technicians were provided with the reasonable opportunity to take legally compliant breaks. 5 As such, the compilation of data is common and sfraightforward evidence that can be used to 6 uniformly determine liability and damages, 7 m. LEGAL STANDARD 8 A case may proceed as a class action in Califomia "when the question is one of a 9 common or general interest, of many persons, or when the parties are numerous, and it is 10 impracticable to bring them all before the court. Code Civ. Proc. § 382. It is well established 11 that in Califomia the proponent of class certification must demonstrate: (1) a well-defined 12 community of interest; (2) the existence of an ascertainable class; and (3) that class 13 certification is the superior altemative. Brinker Restaurant Corp. v. Superior Court (2012) 53 14 Cal.4th 1004, 1021. At the class certification stage the question is whether the action is 15 suitable for resolution on a class-wide basis, not whether the action is legally or factually 16 meritorious. Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 439-440. In fact, the Court is 17 only permitted peek into the merits of the action when it is necessary to resolve any legal or 18 factual issues that are necessary to determine whether certification is proper. Brinker, 53 19 CaUthat 1024. 20 rv. THE ELEMENTS FOR CLASS CERTIFICATION ARE SATISFIED 21 A. Each of the Proposed Classes Have a Well-Defined Community of Interest 22 The community of interest requirement tums on three factors (1) predominate of 23 common questions of law or fact; (2) typicality of claims or defenses; and (3) adequacy of 24 representation. Brinker, 53 Cal.4th at 1021. 25 26 * Pacific Bell's Vehicle Tracking System ("VTS"), is similar to GPS, that is located in each ofthe service vehicles and electronic devices. The VTS tracks the movement of the vehicle anytime the 27 vehicle is moving at a speed of at leastfivemiles per hour. Hill Depo. at 72:1-22. ^ Plaintiffhas requested but has yet to receive all of the data necessary to conduct an adequate analysis 28 to present to the court. 15 PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION; MEMORANDUM OF POINTS AND AUTHORITIES 1 1. Common Ouestions of Law and Fact Predominate for Each Class 2 As a general mle if defendant's liability can be determined on facts common to all 3 putative class members, then a class will be certified even if the members must individually 4 prove their damages. Bradley v. Networkers Internat. LLC (2012) 211 Cal.App.4th 1129, 1142 5 (emphasis added). 6 1. Pacific Bell has a Common Practice of Failing to Provide Premises 7 Technicians with the Reasonable Opportunity to Take Lawful Off-Duty 8 Meal Periods 9 Labor Code section 512 requires employers to provide a meal period of not less than 10 thirty-minutes to employees who work more than five hours in a day. Section 512 also requires 11 employers to provide a second thirty-minute meal period when an employee works more than 12 10 hours, except if the employee works less than twelve hours and the second meal period is 13 waived by mutual consent and the first meal period was not waived. The Califomia Supreme 14 Court has held that an employer's obligation under section 512 is satisfied when the employer 15 relieves its employees of all duty, relinquishes control over their activities, permits them a 16 reasonable opportunity to take an unintermpted thirty-minute meal break, and does not impede 17 or discourage them from doing so. Brinker, 53 Cal.4th at 1040. Although employers are not 18 required to "police" meal periods, employers cannot undermine a formal policy of providing 19 meal breaks by pressuring employees to perform their duties in ways that omit breaks. Id. 20 Plaintiff seeks to certify a Non-Compliant Meal Period Class, a Late Meal Period Sub- 21 Class, a Missed Meal Period Sub-Class and a Missed Second Meal Period Class. First, Pacific 22 BeU's written policies fail to relinquish confrol over Premises Technicians during meal breaks, 23 as Defendant's written policy unreasonably restricts where a Premises Technician can travel 24 during meal and rest breaks, without prior approval. See RCC Exhs. 12-14; Rodriguez Decl. at 25 Tf 15. Pacific BeU's written policy further restricts the number of vehicles and individuals 26 permitted at an establishment during breaks. RCC Exhs. 12, 13. Thus, the common question to 27 all putative class members is whether Pacific Bell's written policies violate Califomia law. 28 16 PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION; MEMORANDUM OF POINTS AND AUTHORITIES 1 Second, Pacific BeU's standardized practice of imposing performance standards and 2 impracticable targets upon Premises Technicians clearly violates the policy set forth in 3 Brinker. The common evidence shows that Pacific Bell's performance standards and associated 4 metrics pressure and otherwise encourage Premises Technicians to (1) forgo off duty meal 5 periods; (2) take meal periods after the fifth hour of work; (3) skip first meal periods; and (4) 6 miss second meal periods. For example, Pacific Bell requires Premises Technicians to achieve 7 a minimum score of 89% in customer satisfaction, but the only way to achieve the target is to 8 obtain a nearly perfect score. As a result. Premises Technicians are pressured to place customer 9 satisfaction before their legal right to breaks. See e.g. Kmeger Depo. at 43:1-10. This causes 10 Premises Technicians to fear that if they leave a job site their targets would not be satisfied 11 because a customer would provide a poor review, as such Premises Technicians are compelled 12 to remain at thejob site and forgo timely off duty meal periods. See e.g. L. Lara Decl. at Tf 16 13 (could not leave a customer's house in the middle of a job because had to provide excellent 14 service); Bui Decl. at TI 15; Medina Decl. at TI 15; McGee Decl. at TI 11; Vazquez Decl. at TI 15; 15 Schuette Decl. at TI 15; A. Lara Decl. at TI 17. 16 Pacific Bell's focus on efficiency and customer satisfaction also causes Premises 17 Technicians to participate in work related activities during their meal periods. For example, 18 many Premises Technicians have expressed that they have had to stay in the "queue" for 19 technical support during a meal period. Kmeger Depo. at 56:15-57:3, 58:1-14; Silva Decl. at TI 20 14; Estioko Decl. at TI 14; Reyes Decl. at TI 15; McGee Decl. at Tf 14. Premises Technicians' 21 meal breaks were also intermpted by managers. See e.g. Phillips Decl. at TI 7 (received calls 22 during meal periods, was reprimanded and told he must always respond); Schuette Decl. at TI 7; 23 Silva Decl. at Tf 7; Nastor Decl. at TI 7. 24 Additionally, Pacific Bell's practice of ranking Premises Technicians against one 25 another further serves to undermine Defendant's formal policy by creating a practice that 26 induces Premises Technicians to forgo legally protected breaks and to work off the clock and 27 rewards them for achieving the set target. See Hudson Decl. at TITI 14,15; Davis Decl. at TI 15; 28 Phillips Decl. at TI 9. 17 PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION; MEMORANDUM OF POINTS AND AUTHORITIES 1 Third, despite the pressure faced by Premises Technicians many did their best to take 2 meal periods when feasible and recorded late and missed meal periods when possible. This is 3 evidenced by Defendant's time keeping and payroll records. For example, during Plaintiffs 4 employment he recorded 151 instances where he took a meal period after the fifth hour of work 5 and at least 125 occasions where he was entitled to but did not receive a second meal period. 6 SeeRCC Decl. Exh. 6; Kmeger Depo. at 131:7-133:13, 133:17-135:17, 139:16-24, 167:5- 7 168:20. Most importantly on at least 24 occasions. Plaintiffs time records were reviewed and 8 approved by Plaintiffs supervisor, Mr. Hill, who does not recall approving one meal period 9 premium in the five years he has been a supervisor. RCC Decl. Exh. 7; Kmeger Depo at 10 156:12-22,169:16-23; Hill Depo. at 195:5-9. The excerpt of sample employee records also 11 show that Premises Technicians consistentiy logged late and missed meal periods. See RCC 12 Decl., Exh 9. In addition to the time records. Pacific Bell also had notice that Premises 13 Technicians were experiencing difficulty taking meal periods and meeting performance targets. 14 However, Defendant refuses to acknowledge the situation. Gentry Decl. at TI 16 (told manager 15 not getting breaks due to target requirements); Phillips Decl. at TI 9. Despite having this 16 information available to them. Pacific Bell has failed to pay premium wages to Plaintiff and 17 other putative class members. RCC Decl. Exh. 7; Plft's Compend. Decls. In fact, both Mr. 18 Thomas and Mr. Banish do not recall approving meal period premiums. Thomas Depo. at 19 19:13-16; Banish Depo at 54:18-21. As such, the common question is whether Pacific Bell's 20 performance standards prohibit the reasonable opportunity to take lawful meal periods. 21 2. Pacific Bell has a Uniform Practice of Failing to A uthorize and Permit 22 Off-Duty Rest Periods 23 Industrial Welfare Commission Wage Order No. 7-2001 requires employers to 24 authorize and permit off-duty rest periods. See also Brinker, 53 Cal.4th at 1033. Califomia law 25 requires that employers relinquish any and all control over how employees spend their break 26 time and must relieve employees of all duties including any obligations of remaining on call. 27 Augustus V. ABM Security Services, Inc. (2016) 2 Cal.5th 257, 269, 272. Waiver however 28 cannot arise where a required rest break was never authorized because an employee has no 18 PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION; MEMORANDUM OF POINTS AND AUTHORITIES 1 opporttanity to decline it. Bradley, 211 Cal.App.4th at 1144. When an employee does not 2 receive a legally compliant rest period, the employer is obligated to immediately pay a 3 premium wage as outlined by Labor Code section 226.7. Murphy v. Kenneth Cole Productions, 4 Inc. (2007) 40 Cal.4tii 1094, 1108 (emphasis added). 5 Here, Plaintiff seeks to certify a Non-Compliant Rest Period Class. As indicated above. 6 Pacific BeU's written policies fail to relinquish control over Premises Technicians during rest 7 breaks, as Defendant's written policy unreasonably restricts where a Premises Technician can 8 travel during meal and rest breaks. See RCC Exhs. 12-14; Rodriguez Decl. at TI 15. 9 Furthermore, Pacific Bell's written policies and practices require Premises Technicians to carry 10 the company device on their person. Id.; Thun Decl. at Tf 14. These policies directly conflict 11 with the holdings in Augustus and Brinker. Thus, the common question is whether 12 Defendant's written policies violate the law. 13 Pacific Bell's practice and implementation of its written rest break policy is deeply 14 flawed, as Pacific Bell's performance standards exhort Premises Technicians to work in a 15 manner that maximizes their scores and admonishes them by doing anything that might 16 jeopardize the satisfaction of the target scores. Hudson Decl. at TI 17. As discussed above, 17 many Premises Technicians feel pressured to work through their rest breaks for fear that they 18 will receive a poor customer satisfaction score if they leave in the middle of a job. See Medina 19 Decl. at Tf 8; Bui Decl. at Tf 13; Dominguez Decl. at 112; Bailey Decl. at Tf 15; Burdge Decl. at TI 20 11. Additionally, to achieve the efficiency and quality targets. Premises Technicians participate 21 in work related activities during rest periods, such as answering calls and text messages from 22 customers and managers, and waiting in the queue to receive technical assistance, in order to 23 maximize their scores and meet set targets. Brown Decl. at TI 13; Torres Decl. at TI 18; 24 Rodriguez Decl. at TI 18; Burdge Decl. at TI 14; Vazquez Decl. at TI 18. Moreover, Pacific BeU's 25 ranking system compels Premises Technicians to work through their rest breaks. See Ector 26 Decl. at TI 17; Torres Decl. at TITI 18, 19; Dockter Decl. at TI 16. 27 On a number of occasions Premises Technicians have complained to Pacific Bell that 28 they are unable to take rest breaks due to the extreme pressure to satisfy the performance 19 PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION; MEMORANDUM OF POINTS AND AUTHORITIES 1 standards. Dockter Decl. at TI 18; Vandehey Decl. at Tf 22. However, Pacific Bell has not paid 2 rest period premiums. Hill Depo at 196:9-16; Banish Depo at 54:23-25; Thomas Depo. at 3 19:13-16. Pacific Bell continues to implement its performance standards and target practices 4 despite the fact that it knows that Premises Technicians have a difficult time meeting the 5 targets while taking legally compliant rest breaks. Pacific BeU also continues to refuse to pay 6 rest period premiums to Premises Technicians. Plft's. Compend. Decls. As such, the common 7 question is whether Pacific Bell authorizes and permits off-duty rest periods when it strictly 8 enforces its performance standards. 9 3. Pacific Bell has a Uniform Practice of Failing to Pay Premises 10 Technicians for All Hours Worked 11 The Labor Code codifies Califomia's public policy of prompt payment of wages. See 12 Labor Code § 204. Pursuant to the Labor Code, employers are required to pay all employees a 13 fixed minimum wage for all time engaged in worked. Labor Code § 1197. AdditionaUy, 14 employees who work more than eight hours in one day, or forty hours in a week are entitled to 15 compensation at time and one half the employee's regular rate of pay. Labor Code § 1198. 16 Although, travel time to and from a work is typically not compensable, when the fravel 17 requires an employee to deliver "any equipment, goods or