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= LEWIS BRISBOIS BISGAARD & SMITH LLP
SHANE SINGH, SB# 202733
E-Mail: Shane.Singh@lewisbrisbois.com PILED EN eS o
NY
GRACE E. MEHTA, SB# 327676
E-Mail: Grace.Mehta@lewisbrisbois.com
JUN 13 2023
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2020 West El Camino Avenue, Suite 700
Sacramento, California 95833
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Telephone: 916.564.5400 By: E. Macaonald
Depu'y terk
Facsimile: 916.564.5444
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Attorneys for Defendant, ASOMEO
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ENVIRONMENTAL RESTORATION
INDUSTRY, LLC
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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COUNTY OF SACRAMENTO
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JAY ROBINSON and HUGO PINEDA, CASE NO. 34-2019-00262942-CU-OE-GDS
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individually and on behalf of all others
similarly situated,
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DEFENDANT’S OPPOSITION TO
Plaintiffs, MOTION FOR CLASS CERTIFICATION
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BY FAX
VS.
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Date: June 27, 2023
ASOMEO ENVIRONMENTAL Time: 9:00 a.m.
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RESTORATION INDUSTRY, LLC, a Dept.: 54
California Corporation and PHILLIPS &
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JORDAN INC., a North Carolina Corporation Action Filed: August 16, 2019
and DOES 1-10, Trial Date: None Set
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Defendants.
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BISGAARD 125569104.1 1
& SMITH LP
ATTORNEYS AT LAW DEFENDANT’S OPPOSITION TO MOTION FOR CLASS CERTIFICATION
= TABLE OF CONTENTS
Page
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I INTRODUCTION... eescsscseesseesessesecseeseesceseescessesessceseeseescesecsecasesseseessersenseseeeeeeecssesesesess 4
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A. Plaintiffs Failed to Serve All Defendants. ..0........ccssesessesessesescsessesesesesscscsesssscseeeeees 5
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B. Plaintiff Pineda is an Improper Class Representative. ...........:.cccccscesessessesessssssseseeeeese 5
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Cc, Different Contracts and Collective Bargaining Agreements with Different
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Policies and Practices Apply to Class Membefs. ...........:.sccscsccsessessesessssesscsesscssessesees 5
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I. LEGAL ARGUMENT ...... ci eeccssseseeesssssesesseseeseseesesecsecsesecsesseeesesaesessesecsesscscsscsecssceseasessaees 6
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A. Plaintiff's Burden on a Motion for Class Certification. ...sssssssssssssssssssssssssssssssssssssesee 6
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B. Plaintiffs’ Unpaid Wage Claims are Not Appropriate for Class Treatment. ............. a
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1. Plaintiffs fail to offer substantial evidence in support of their unpaid
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ene nennonEnNatauNsnVERESSEUNANiksneoponennnecnennenonered 8
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2. Resolution of Plaintiffs’ unpaid wage allegations undeniably require
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individual inquiries not suitable to class treatment. ..........ccccscsesesesesssseseeees 11
—=—=
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C. Plaintiffs’ Meal Periods Claims Must Not be Certified. ..........c.cccscssscssssssssssseeeeees 11
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1. Defendant’s meal period obligations..............cccccscsssssesssscssssssssscsssssescsceecacees 11
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2. Plaintiffs failed to identify common questions or introduce
substantial evidence for their meal period claims. ............cc.cccccssceeeeeceeeeeeeee |e
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cP Individualized issues predominate. .........c.ccccccscsesssscsssssscscsssscscscsececsceeceeeees 12
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D. Plaintiffs’ Rest Periods Claims Must Not be Certified. .........ccccscscscscscssscecseseeneees 13
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1. Defendant’s rest period obligationS...........cccccssssescsessesessssssescscsscscsesscesseeeeaes 13
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2. Plaintiffs fail to identify common questions or introduce substantial
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evidence for their rest period Claims. ..........c.ccccsesessesessssssescsssesscssceecsseeceeaes 13
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ce Individualized issues predominate. ............ccccscssssssessssescssssssescsssscsceseeecseeees 13
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E. Plaintiffs’ Business Expense Claims Must Not Be Certified. .......c.cccccscscceseseseseeeee 14
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Fe Plaintiffs’ Request for Certification of Their Derivative Claims Must be
DGMI6C,, srerssnssonssnueecensnesnsuwasatttnzcthi5051066dtasnennessonesneneesuneeaaneensyvnrag updpnsenlegemananeesnnnasunss 14
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G. Plaintiffs are Not Typical Class Representatives. ..........ccccccccccssssssssssssssssssesceceseeneees 14
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H. Due to the Overwhelming Number of Individual Issues, a Class Action is
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Not the Superior Means of Resolving this Dispute............c.cccccccsccssssssseseseseseseceeeeees 15
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HL. CONCLUSION 0csssnssansessanssnsunassarevetaanas
s2s6ehsi sss dneonnensneevanaroeneoanexeegyyrseensnpupasnsneanaseneeseeamnssaxse 16
LEWIS
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BRISBOIS
BISGAARD 125569104.1
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ATTORNEYS AT LAW DEFENDANT’S OPPOSITION TO MOTION FOR CLASS CERTIFICATION
TABLE OF AUTHORITIES
Page
NY
State Cases
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Arenas v. El Torito Restaurants, Inc.
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@O10) 183 Cal App Athi 723 sc cssneswseseosenessannacnsusanmecacnesncnmauenenansscanseeesucmnnancessasaentaranaraenaesnensenees 6
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Brinker Restaurant Corp. v. Superior Court
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(2012) 53 Cal Ath TO4 ioc csnnsnenssanessnanseaennanseneenewensnnnanas enenemesanatanusnsinaasennneantsessrenemeanmeaenssa 6, 11
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Duran v. U.S. Bank National Assn.
GOA) SF CAL ATE I orecneaonnanesromsrpsanannesennarecsyersecumranennenest
cect aera geen semana teste dlstanmumcmaranrae 6
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Esparza v. Safeway Inc.
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(2019) 36 Cal. App.Sth 42... ceesseesessecessssescesceeescescescecceseeseeseeseseesceaeeeeeaeessessesesesensensens 4,7
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Fireside Bank v. Superior Court
SF llU Fl
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(2007) 40 Cal.4th 1069... cesssescessesseceseesceeeseeseceeseesecsceeessenseseesseeseeeeesesteseetessensesseese 6
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Linder v. Thrifty Oil Co.
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(2000) 23 Cal.4th 429. cssecsssscssesssecsesecseessecsseessctecsesseesssesseesesesseseesesssseesseeeeeaceecseereseeres 6
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Sav-On Drug Stores, Inc. v. Superior Court
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(2004) 34 Cal.4th 319. esescesecseeseessesessessesseeseescesceseeseesseseeseeseesseseeseeseeaseesesesseesscesceseess 6
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Soderstedt v. CBIZ S. Cal., LLC
(2011) 197 Cal App Athi 133 sssvicsscnersconsnccessvenasasn
asians stvacestststarsecanceecarnoneensnnenscensenceususenessuranincees 16
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Washington Mutual Bank v. Superior Court
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(2001) 24 (Cal i 906 scccraxessanransnassxmmanssansenssnsng
onus tines s\ecunnOveNanGSnsh INAS esousieanansowsansvvanensanvonvarensis 6
Statutes
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California Code of Civil Procedure § 382.........cccsccscsssssssessesessescssesscsesscsessesscsscsscscsesscsssscsceassaeacsaens 6
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BRISBOIS
BISGAARD 125569104.1 3
& SMITH LLP
ATTORNEYS AT LAW DEFENDANT’S OPPOSITION TO MOTION FOR CLASS CERTIFICATION
= I. INTRODUCTION
Plaintiffs Jay Robinson (“Robinson”) and Hugo Pineda (“Pineda”) (collectively
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“Plaintiffs”) Motion for Class Certification (“Motion”) asks the Court to certify the following
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classes against Defendants Asomeo Environmental Restoration Industry, LLC (“Defendant” or
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“AERI”) and Phillips & Jordan (collectively “Defendants”): (1) unpaid overtime class; (2) unpaid
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minimum wage class; (3) meal break class; (4) rest break class; (5) unreimbursed expense class;
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(6) unpaid final wage class; (7) accurate wage statement class; and (8) accurate time records class.
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However, the Motion fails to demonstrate how liability for any of these claims can be
demonstrated on a class-wide basis via common proof. As such, Plaintiffs fail to meet the
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standard for class certification. (Esparza v. Safeway Inc. (2019) 36 Cal.App.Sth 42, 54.) AERI
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does not have any unlawful employment policies or practices. Thus, each of Plaintiffs’ allegations
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require numerous individualized inquiries to adjudicate and Plaintiffs’ request for class
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certification must be denied.
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Plaintiffs’ claims are unique to them and should be adjudicated on an individual basis for
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the following reasons: (1) Plaintiffs failed to serve all Defendants; (2) Plaintiff Pineda is an
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improper class representative as he independently settled any claims he had related to his alleged
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employment with AERI; and (3) different collective bargaining agreements (“CBAs”) with
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different policies and practices apply to class members including: exemptions/specifications for
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overtime, meal periods, and rest periods. These individual issues predominate. The evidence does
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not support certification.
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The individualized issues summarized by Plaintiffs are a microcosm of what prospective
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trial here would entail. AERI maintains lawful policies and practices and works diligently to
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ensure they are followed by all employees and supervisors. Any potential deviances—if in fact
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any exist—from these lawful practices were the result of individualized issues at individualized
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out-of-office, temporary, and autonomous work sites. The Motion fails to offer any sort of
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cognizable plan to adjudicate these claims via common evidence at trial.
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In addition to the overabundance of individualized issues here, the minimal evidence
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submitted in support of the Motion falls well short of the “substantial evidence” standard required
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BISGAARD 125569104.1 4
& SMITH LLP
ATTORNEYS AT LAW DEFENDANT’S OPPOSITION TO MOTION FOR CLASS CERTIFICATION
= at class certification. In fact, the majority of “evidence” in support of the Motion is a list of
unredacted and unauthenticated contact information, unauthenticated employee payroll and time
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records, a few citations to a single deposition of a former AERI employee, and a single
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unreferenced declaration of one of the two Plaintiffs. As explained herein, this “evidence” fails to
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substantiate any common issues or demonstrate how liability here is susceptible to common proof
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and is thus insufficient. For these reasons, and as more fully stated below, Plaintiffs’ Motion must
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be denied.
A. Plaintiffs Failed to Serve All Defendants.
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Plaintiffs’ Counsel failed to serve all named Defendants, namely Defendant Phillips &
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Jordan. (Plaintiffs’ Motion for Class Certification, Proof of Service.) As such, granting Plaintiffs’
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Motion for Class Certification would be improper.
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B. Plaintiff Pineda is an Improper Class Representative.
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Plaintiff Pineda independently entered into a settlement agreement with AERI and settled
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any all any claims he may have had related to his alleged employment with AERI. Despite this
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settlement, Plaintiffs’ counsel has not dismissed Plaintiff Pineda from the case and instead
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attempts to use him as a class representative and a means to certify a class. In response to
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receiving Plaintiffs’ Motion, which clearly continues to identify Plaintiff Pineda, Defendant AERI
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noticed his deposition. (Declaration of Grace Mehta (“Mehta Decl.”), Ex. A.) Plaintiffs’ counsel
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responded to the deposition notice for Plaintiff Pineda and stated, “[p]lease do note, that but for
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one exception, we have not spoken with Mr. Pineda since he was contacted directly by AERI’s
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agent, Jonathan Fannuci, to have him sign a settlement agreement of all claims. We understand
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that he is working for AERI and as there is now a conflict, we cannot produce him for the
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deposition that I understand you set for tomorrow.” (Mehta Decl., Ex. B.) As such, Plaintiffs’
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motion should be denied as Plaintiff Pineda is clearly an improper class representative.
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Cc, Different Contracts and Collective Bargaining Agreements with Different Policies
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and Practices Apply to Class Members.
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NIE
The facts show that no common issues predominate regarding any of Plaintiffs’ claims.
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Plaintiffs’ claims are limited to their unique work experiences. Their claims are not susceptible to
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BRISBOIS
BISGAARD 125569104.1 5
& SMITH LLP
ATTORNEYS AT LAW DEFENDANT’S OPPOSITION TO MOTION FOR CLASS CERTIFICATION
= class-wide proof or class-wide answers. Plaintiffs cannot demonstrate commonality, typicality,
adequacy, or superiority with respect to their unpaid wage claims, meal period claims, rest period
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claims, or business expense claims. Their other claims similarly fail because they are purely
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derivative. As such, AERI respectfully requests that the Court strike all class allegations from
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Plaintiffs’ operative Complaint and issue an Order instructing Plaintiffs to proceed with their
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claims against AERI in their individual capacity only.
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II. LEGAL ARGUMENT
A. Plaintiff's Burden on a Motion for Class Certification.
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In class certification motions, the burden of proof is on the party seeking certification.
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(Washington Mutual Bank v. Superior Court (2001) 24 Cal.4th 906, 922.) To certify a class, a
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plaintiff must overcome “meaningful obstacles” to satisfy their burden that, by design, is “difficult
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to meet.” (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 441.)
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California Code of Civil Procedure section 382 authorizes class actions “when the question
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is one of a common or general interest, of many persons, or when the parties are numerous, and it
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is impracticable to bring them all before the court.” Additionally,
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The party advocating class treatment must demonstrate the existence of an
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ascertainable and sufficiently numerous class, a well-defined community of interest,
and substantial benefits from certification that render proceeding as a class superior
to the alternatives. In turn, the community of interest requirement embodies three
factors: (1) predominant common questions of law or fact; (2) class representatives
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with claims or defenses typical of the class; and (3) class representatives who can
adequately represent the class.
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(Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1021) (internal
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citations omitted.)
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A plaintiff's burden includes submitting “substantial evidence” proving each element
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required for class certification. (Fireside Bank v. Superior Court (2007) 40 Cal.4th 1069, 1089;
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KY
Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 328.) “ [I]f a class action ‘will
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KY
splinter into individual trials,” common questions do not predominate and litigation of the action in
KRY
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the class format is inappropriate.” (Arenas v. El Torito Restaurants, Inc. (2010) 183 Cal.App.4th
Dn
NY
723, 732.) Trial courts deciding whether to certify a class must consider not just whether common
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questions exist, but also whether it will be feasible to try the case as a class action. (Duran v. U.S.
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BISGAARD 125569104.1 6
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ATTORNEYS AT LAW DEFENDANT’S OPPOSITION TO MOTION FOR CLASS CERTIFICATION
= Bank National Assn. (2014) 59 Cal.4th 1, 27.)
In a wage and hour case such as this one, Plaintiffs must also include an explanation to the
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Court as to how wage and hour violations will be demonstrated on a class-wide basis via common
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proof. (Esparza v. Safeway Inc. (2019) 36 Cal.App.5th 42, 54 [holding that the failure to pay meal
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and rest period premiums alone is not a certifiable theory and that a plaintiff must demonstrate
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how liability will be established via common proof. ].)
B. Plaintiffs’ Unpaid Wage Claims are Not Appropriate for Class Treatment.
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Plaintiffs’ Motion seeks to certify claims alleging that Defendants’ employees are not paid
for all hours worked. More specifically, Plaintiffs alleges that Defendants lacked written policies
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that applied to all of the class members and the Plaintiffs’ wage statements show they were not
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properly compensated for all hours worked. These claims are patently false and not supported by
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evidence.
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In support of certifying Plaintiffs’ unpaid wage claims, Plaintiffs attach “Exhibits 4-6” to
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their motion, which purports to be payroll and time records. Plaintiffs’ Exhibits 4-6 are not
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properly identified in Plaintiffs’ memorandum of points and authorities or identified or
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authenticated in any declaration in support of Plaintiffs’ Motion. As such, Plaintiffs’ Exhibits 46
should not be considered in support of Plaintiffs’ Motion. However, should the Court consider the
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records in Plaintiffs’ Exhibits 4-6, the records show the opposite of what Plaintiffs’ claim.
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Despite properly identifying or authenticating Exhibits 4—6, Plaintiffs appear to reference it
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in support of their Motion as follows:
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Plaintiff's theory of liability is that Defendant failed to pay minimum and overtime
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wages to the class members by failing to adequately ensure that hours worked were
accurately recorded, and by failing to pay employees for all hours due. Plaintiffs
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wage statements frequently demonstrated that Plaintiffs were required to work
overtime, nor did they indicate any extra wages were paid for the overtime worked
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or that premium pay was dispensed for the failure to take lawfully required meal
and rest periods. See, AERI Sample Documents, Set 1, pg. 2, 5, 8, 12, 16, 20, and
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Set 2, pg. 3, 11, 15, 19, 22, 27, 31, 35, 39, 43, 47, 51.
(Plaintiffs’ Motion for Class Certification, p. 7, 17, Ins. 1-9.)
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The records in Plaintiffs’ Exhibits 4-6, including those Plaintiffs referenced above, do not
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support Plaintiffs’ theory of liability. Rather, they disprove it. For example, pages 1 and 2 of
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Plaintiffs’ Exhibit 4 (what Plaintiffs appear to cite as “Set 1” in the Motion) clearly correspond
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BISGAARD 125569104.1 7
& SMITH LLP
ATTORNEYS AT LAW DEFENDANT’S OPPOSITION TO MOTION FOR CLASS CERTIFICATION
= and show that this individual worked a total of 71.89 hours for this pay period, 31.89 of which
were overtime hours. It is unclear why Plaintiffs fail to reference the first page of this exhibit as it
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shows this individual was paid double time for all of his overtime work and otherwise properly
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compensated. A review of the other records in Plaintiffs’ Exhibits 4—6 similarly show that each of
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the sample employees were properly compensated for all hours worked in accordance with
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California law and the applicable CBA.
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As the majority of AERI employees were/are subject to the terms and conditions of the
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applicable CBA, they were/are required to follow those terms and conditions which include but
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are not limited to overtime, double time, meal periods, and rest periods. As such, the facts show
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that no common issues predominate regarding Plaintiffs’ unpaid wage claims as both the policies
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governing wages, set forth by the applicable CBA and the records in Plaintiffs’ Exhibits 4-6
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clearly show that AERI employees were properly compensated for all hours worked in accordance
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with California law and in conformance with the applicable union agreement governing the
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respective employees’ employment.
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1. Plaintiffs fail to offer substantial evidence in support of their unpaid wage
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theories.
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Plaintiffs fail to introduce meaningful or compelling evidence in support of their unpaid
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wage Claims. There is no evidence of an unlawful policies, written or otherwise. Instead, all
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Plaintiffs introduced was the following: (1) unauthenticated examples of employee time and
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payroll records and (2) the deposition testimony of Lawrence Kahn. Plaintiffs then boldly assert
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that this evidence is enough to demonstrate that there is a certifiable unlawful class-wide policy
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here and that liability will be shown by common evidence at trial. This falls well below Plaintiffs’
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evidentiary burden at certification.
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Plaintiffs also refer to handwritten clock-in and clock-out records. These handwritten time
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entries were only applicable to work on the Campfire Project during the brief time period AERI
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worked as a subcontractor to Phillips & Jordan. These records were compiled by Phillips &
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Jordan and later sent to SouthEast Personnel Leasing, Inc. (“SPLI”) who utilized the time entries
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to create and issue the employees’ wage statements. (Mehta Decl., Ex. C, Deposition of Lawrence
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BISGAARD 125569104.1 8
& SMITH LLP
ATTORNEYS AT LAW DEFENDANT’S OPPOSITION TO MOTION FOR CLASS CERTIFICATION
= Kahn (“Kahn Depo.”), 57:1-59:17.) AERI has no reason to believe that employees were falsely
reporting their own work hours.
NO
Further, Plaintiffs’ Exhibits 4-6 clearly show that hours worked were clearly recorded
HR
down to the decimal. For example, pages | and 2 of Plaintiffs’ Exhibit 4 (what Plaintiffs appear to
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cite as “Set 1” in the Motion) clearly show that this individual worked for a total of 71.89 hours
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during that pay period. Additionally, as another example, Plaintiffs’ Exhibit 5, pages 3-4 show
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that this individual worked 40.33 total hours for this pay period. This individual’s time record
shows that they worked two hours overtime on March 9, 2022. (Plaintiffs’ Exhibit 5, p. 4.) Those
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two hours of overtime are clearly stated on the corresponding wage statement showing double
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time pay for those two overtime hours. (Plaintiffs’ Exhibit 5, p. 3.) Thus, the time records/wage
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statements clearly provide no evidence of a certifiable unlawful policy or practice here, nor any
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such constructive notice that any time-records, handwritten or otherwise, sent to the applicable
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Professional Employer Organization (“PEO”), in Plaintiffs’ case SPLI, were inaccurate.
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Plaintiffs then point to the Deposition of Lawrence Kahn to support certifying Plaintiffs’
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unpaid wages claims:
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Defendant further identified that there existed no personnel that were directly
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responsible for proper compliance with payroll and time records, only a general
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overseer meant to ensure “health and safety” of personnel. See, Depo of Lawrence
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Kahn, pg. 78, In. 7-15. Individual time cards for which employees could record
their hours were similarly not kept but a “sign in and sign out” sheet was used. See,
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Depo of Lawrence Kahn, pg. 79, In. 1-13. This is an inaccurate representation of
the deposition testimony.
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(Plaintiffs’ Motion for Class Certification, p. 7, 417, Ins. 9-13.)
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Plaintiffs misstate the deposition testimony and fails to account for the agreement between
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|}AERI, Phillips & Jordan, and PG&E and AERI’s agreement with the IBEW. (Akan Decl., 49 3-5,
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Exs. A, B.) Mr. Kahn testified that AERI employees and others working for Phillips & Jordan
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were required to complete a sign-in/sign-out sheet at the start and end of each day. (Mehta Decl.,
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Ex. C, Kahn Depo., 76:15—22.) The sign-in and sign-out sheets were located at Phillips &
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Jordan’s trailer at the main worksite location organized by PG&E. (Ibid.)
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Additionally, Mr. Kahn stated that for safety reasons and also practical reasons due to
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distance, employees could not go back to the trailer to sign-in and sign-out for meal and rest
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BISGAARD 125569104.1 9
& SMITH LLP
ATTORNEYS AT LAW DEFENDANT’S OPPOSITION TO MOTION FOR CLASS CERTIFICATION
= breaks. (/d. at 77:6—78:6.) Instead, employees were to complete a “Job Safety Analysis Form” to
indicate their breaks were properly taken. (Jbid.) PG&E also encouraged employees to take their
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breaks by providing food for the employees to take with them to their respective job sites. (Jbid.)
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The “general overseer” Plaintiffs refer to in their Motion acted as an additional safeguard to ensure
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that AERI employees were taking all required breaks as practicable.
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Plaintiffs further claim “[d]efendant further identified that there existed no personnel that
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were directly responsible for proper compliance with payroll and time records.” (Plaintiffs’
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Motion for Class Certification, p. 7, § 17, Ins. 9-14.) This misstates the deposition testimony and
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fails to account for the IBEW’s written policies as well as the PG&E’s contractual requirements.
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(See Akan Decl., 4, Ex. A, B.) Mr. Kahn further detailed the safeguards in place to ensure AERI
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employees took all required breaks and also explained in detail why having a specific person with
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each crew directly responsible for compliance would be impractical. He explains:
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[F]rom doing quality control over both the sign-in, sign-out period, as well as the
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review of the JSA forms, which showed that the personnel were filling those in. I
was also directly involved in a lot of the briefings to the employees that told them
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that they needed to do these things in order to -- in order to meet these
requirements, but there is simply no way to know when you have employees spread
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over a very, very wide geographic area, you have to trust that when you tell them it
is company policy to take your breaks and to not skip your breaks that they won't,
BAB
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that — you can't have a supervisor with every single crew all the time without
quintupling the price of the work to be done, making it unaffordable. Even if we
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did, the questions is well, how do we know that they are telling the truth? So you
BAH
would have to have people watching the watchers. Who's watching them? At some
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point, you just have to trust that people are going to follow company policy when it
is in their favor.
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(Mehta Decl., Ex. C, Kahn Depo., 88:21—-89:14.)
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Lastly, Plaintiffs fail to account for the fact that these practices were only applicable to
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employees who worked on this Project during the short period of time where AERI acted as a
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NY
subcontractor for Phillips & Jordan on this specific PG&E Project. (Akan Decl., 6; Mehta Decl.,
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Ex. C, Kahn Depo., 115:1-18.)
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In short, Plaintiffs’ Motion falls well short of the “substantial evidence” required to
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achieve class certification of these unpaid wage claims. The critical portions of Plaintiffs’
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certification theory are supported by false claims and misstated deposition testimony that are
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easily disproved by the actual deposition testimony and payroll and time records in Plaintiffs’ own
LEWIS
nv
BRISBOIS
BISGAARD 125569104.1 10
& SMITHLLP
ATTORNEYS AT LAW, DEFENDANT’S OPPOSITION TO MOTION FOR CLASS CERTIFICATION
= exhibits. As such, certification of Plaintiffs’ unpaid wages claims must be denied.
2k Resolution of Plaintiffs’ unpaid wage allegations undeniably require
NH
individual inquiries not suitable to class treatment.
BN OHO
Under Brinker, when there is no evidence of a uniform unlawful policy or practice
Fe
resulting in off-the-clock work, as is the case here, there is a rebuttable presumption that
en
employ
Preview
= LEWIS BRISBOIS BISGAARD & SMITH LLP SHANE SINGH, SB# 202733 E-Mail: Shane.Singh@lewisbrisbois.com PILED EN eS o NY GRACE E. MEHTA, SB# 327676 E-Mail: Grace.Mehta@lewisbrisbois.com JUN 13 2023 OO 2020 West El Camino Avenue, Suite 700 Sacramento, California 95833 > Telephone: 916.564.5400 By: E. Macaonald Depu'y terk Facsimile: 916.564.5444 an Attorneys for Defendant, ASOMEO BD ENVIRONMENTAL RESTORATION INDUSTRY, LLC KN fF SUPERIOR COURT OF THE STATE OF CALIFORNIA eo COUNTY OF SACRAMENTO SC —=-= JAY ROBINSON and HUGO PINEDA, CASE NO. 34-2019-00262942-CU-OE-GDS |= NY individually and on behalf of all others similarly situated, FF DEFENDANT’S OPPOSITION TO Plaintiffs, MOTION FOR CLASS CERTIFICATION F&F FF BY FAX VS. aA FF Date: June 27, 2023 ASOMEO ENVIRONMENTAL Time: 9:00 a.m. FX FBNHeA RESTORATION INDUSTRY, LLC, a Dept.: 54 California Corporation and PHILLIPS & F JORDAN INC., a North Carolina Corporation Action Filed: August 16, 2019 and DOES 1-10, Trial Date: None Set FF Defendants. F-F& 6FS NY KY = KR NeOO NKR Fk» KY nan NY Dn NY NI NY So LEWIS nv BRISBOIS BISGAARD 125569104.1 1 & SMITH LP ATTORNEYS AT LAW DEFENDANT’S OPPOSITION TO MOTION FOR CLASS CERTIFICATION = TABLE OF CONTENTS Page NYO I INTRODUCTION... eescsscseesseesessesecseeseesceseescessesessceseeseescesecsecasesseseessersenseseeeeeeecssesesesess 4 WO A. Plaintiffs Failed to Serve All Defendants. ..0........ccssesessesessesescsessesesesesscscsesssscseeeeees 5 > B. Plaintiff Pineda is an Improper Class Representative. ...........:.cccccscesessessesessssssseseeeeese 5 aA Cc, Different Contracts and Collective Bargaining Agreements with Different HDB Policies and Practices Apply to Class Membefs. ...........:.sccscsccsessessesessssesscsesscssessesees 5 KI I. LEGAL ARGUMENT ...... ci eeccssseseeesssssesesseseeseseesesecsecsesecsesseeesesaesessesecsesscscsscsecssceseasessaees 6 fF A. Plaintiff's Burden on a Motion for Class Certification. ...sssssssssssssssssssssssssssssssssssssesee 6 So B. Plaintiffs’ Unpaid Wage Claims are Not Appropriate for Class Treatment. ............. a — CS 1. Plaintiffs fail to offer substantial evidence in support of their unpaid —_—) WES CCITTCS rcicswsnnesamecsnsvasexeessnensseuaner ene nennonEnNatauNsnVERESSEUNANiksneoponennnecnennenonered 8 = 2. Resolution of Plaintiffs’ unpaid wage allegations undeniably require —=_— NY individual inquiries not suitable to class treatment. ..........ccccscsesesesesssseseeees 11 —=—= HO C. Plaintiffs’ Meal Periods Claims Must Not be Certified. ..........c.cccscssscssssssssssseeeeees 11 FF |= 1. Defendant’s meal period obligations..............cccccscsssssesssscssssssssscsssssescsceecacees 11 un = 2. Plaintiffs failed to identify common questions or introduce substantial evidence for their meal period claims. ............cc.cccccssceeeeeceeeeeeeee |e =F NHB cP Individualized issues predominate. .........c.ccccccscsesssscsssssscscsssscscscsececsceeceeeees 12 F® D. Plaintiffs’ Rest Periods Claims Must Not be Certified. .........ccccscscscscscssscecseseeneees 13 DB FF 1. Defendant’s rest period obligationS...........cccccssssescsessesessssssescscsscscsesscesseeeeaes 13 CO F&F 2. Plaintiffs fail to identify common questions or introduce substantial FS NY evidence for their rest period Claims. ..........c.ccccsesessesessssssescsssesscssceecsseeceeaes 13 KY = ce Individualized issues predominate. ............ccccscssssssessssescssssssescsssscsceseeecseeees 13 Ne NY E. Plaintiffs’ Business Expense Claims Must Not Be Certified. .......c.cccccscscceseseseseeeee 14 HD KR Fe Plaintiffs’ Request for Certification of Their Derivative Claims Must be DGMI6C,, srerssnssonssnueecensnesnsuwasatttnzcthi5051066dtasnennessonesneneesuneeaaneensyvnrag updpnsenlegemananeesnnnasunss 14 eF KRY G. Plaintiffs are Not Typical Class Representatives. ..........ccccccccccssssssssssssssssssesceceseeneees 14 NKR a H. Due to the Overwhelming Number of Individual Issues, a Class Action is NY IDB Not the Superior Means of Resolving this Dispute............c.cccccccsccssssssseseseseseseceeeeees 15 NY HL. CONCLUSION 0csssnssansessanssnsunassarevetaanas s2s6ehsi sss dneonnensneevanaroeneoanexeegyyrseensnpupasnsneanaseneeseeamnssaxse 16 LEWIS So rey BRISBOIS BISGAARD 125569104.1 & SMITH LLP ATTORNEYS AT LAW DEFENDANT’S OPPOSITION TO MOTION FOR CLASS CERTIFICATION TABLE OF AUTHORITIES Page NY State Cases OO Arenas v. El Torito Restaurants, Inc. > @O10) 183 Cal App Athi 723 sc cssneswseseosenessannacnsusanmecacnesncnmauenenansscanseeesucmnnancessasaentaranaraenaesnensenees 6 nN Brinker Restaurant Corp. v. Superior Court Bn (2012) 53 Cal Ath TO4 ioc csnnsnenssanessnanseaennanseneenewensnnnanas enenemesanatanusnsinaasennneantsessrenemeanmeaenssa 6, 11 KI Duran v. U.S. Bank National Assn. GOA) SF CAL ATE I orecneaonnanesromsrpsanannesennarecsyersecumranennenest cect aera geen semana teste dlstanmumcmaranrae 6 mB Esparza v. Safeway Inc. So (2019) 36 Cal. App.Sth 42... ceesseesessecessssescesceeescescescecceseeseeseeseseesceaeeeeeaeessessesesesensensens 4,7 SCS Fireside Bank v. Superior Court SF llU Fl -& (2007) 40 Cal.4th 1069... cesssescessesseceseesceeeseeseceeseesecsceeessenseseesseeseeeeesesteseetessensesseese 6 Ne Linder v. Thrifty Oil Co. luv GT lr (2000) 23 Cal.4th 429. cssecsssscssesssecsesecseessecsseessctecsesseesssesseesesesseseesesssseesseeeeeaceecseereseeres 6 HH Sav-On Drug Stores, Inc. v. Superior Court yk, Uv SFT (2004) 34 Cal.4th 319. esescesecseeseessesessessesseeseescesceseeseesseseeseeseesseseeseeseeaseesesesseesscesceseess 6 ua luv ST Soderstedt v. CBIZ S. Cal., LLC (2011) 197 Cal App Athi 133 sssvicsscnersconsnccessvenasasn asians stvacestststarsecanceecarnoneensnnenscensenceususenessuranincees 16 luv SF A lUvrSFlUvr SF Washington Mutual Bank v. Superior Court BNA (2001) 24 (Cal i 906 scccraxessanransnassxmmanssansenssnsng onus tines s\ecunnOveNanGSnsh INAS esousieanansowsansvvanensanvonvarensis 6 Statutes CBO lS California Code of Civil Procedure § 382.........cccsccscsssssssessesessescssesscsesscsessesscsscsscscsesscsssscsceassaeacsaens 6 CF UNS CUNG = OUNE NY HO COUN FF CUNE Dna NOUN NO A Ca LEWIS ew BRISBOIS BISGAARD 125569104.1 3 & SMITH LLP ATTORNEYS AT LAW DEFENDANT’S OPPOSITION TO MOTION FOR CLASS CERTIFICATION = I. INTRODUCTION Plaintiffs Jay Robinson (“Robinson”) and Hugo Pineda (“Pineda”) (collectively NO “Plaintiffs”) Motion for Class Certification (“Motion”) asks the Court to certify the following WO classes against Defendants Asomeo Environmental Restoration Industry, LLC (“Defendant” or > “AERI”) and Phillips & Jordan (collectively “Defendants”): (1) unpaid overtime class; (2) unpaid a minimum wage class; (3) meal break class; (4) rest break class; (5) unreimbursed expense class; DB (6) unpaid final wage class; (7) accurate wage statement class; and (8) accurate time records class. FHI However, the Motion fails to demonstrate how liability for any of these claims can be demonstrated on a class-wide basis via common proof. As such, Plaintiffs fail to meet the Se standard for class certification. (Esparza v. Safeway Inc. (2019) 36 Cal.App.Sth 42, 54.) AERI = SS does not have any unlawful employment policies or practices. Thus, each of Plaintiffs’ allegations FF = require numerous individualized inquiries to adjudicate and Plaintiffs’ request for class NY FF certification must be denied. OO FF Plaintiffs’ claims are unique to them and should be adjudicated on an individual basis for F§ >» the following reasons: (1) Plaintiffs failed to serve all Defendants; (2) Plaintiff Pineda is an a FF improper class representative as he independently settled any claims he had related to his alleged FX FBNAHNIeA employment with AERI; and (3) different collective bargaining agreements (“CBAs”) with F§ different policies and practices apply to class members including: exemptions/specifications for F& overtime, meal periods, and rest periods. These individual issues predominate. The evidence does F*-*§ BO not support certification. Co NY The individualized issues summarized by Plaintiffs are a microcosm of what prospective KY = trial here would entail. AERI maintains lawful policies and practices and works diligently to NY KY ensure they are followed by all employees and supervisors. Any potential deviances—if in fact KY | any exist—from these lawful practices were the result of individualized issues at individualized Fk» KY out-of-office, temporary, and autonomous work sites. The Motion fails to offer any sort of KY a cognizable plan to adjudicate these claims via common evidence at trial. BAB NY In addition to the overabundance of individualized issues here, the minimal evidence NI NY submitted in support of the Motion falls well short of the “substantial evidence” standard required SoS LEWIS nv BRISBOIS BISGAARD 125569104.1 4 & SMITH LLP ATTORNEYS AT LAW DEFENDANT’S OPPOSITION TO MOTION FOR CLASS CERTIFICATION = at class certification. In fact, the majority of “evidence” in support of the Motion is a list of unredacted and unauthenticated contact information, unauthenticated employee payroll and time NY records, a few citations to a single deposition of a former AERI employee, and a single WO unreferenced declaration of one of the two Plaintiffs. As explained herein, this “evidence” fails to ee substantiate any common issues or demonstrate how liability here is susceptible to common proof Hn and is thus insufficient. For these reasons, and as more fully stated below, Plaintiffs’ Motion must NBD be denied. A. Plaintiffs Failed to Serve All Defendants. PB Plaintiffs’ Counsel failed to serve all named Defendants, namely Defendant Phillips & So Jordan. (Plaintiffs’ Motion for Class Certification, Proof of Service.) As such, granting Plaintiffs’ = OS Motion for Class Certification would be improper. —-& |= B. Plaintiff Pineda is an Improper Class Representative. F Ne Plaintiff Pineda independently entered into a settlement agreement with AERI and settled OO FF any all any claims he may have had related to his alleged employment with AERI. Despite this FF FX settlement, Plaintiffs’ counsel has not dismissed Plaintiff Pineda from the case and instead a FF attempts to use him as a class representative and a means to certify a class. In response to DB FF receiving Plaintiffs’ Motion, which clearly continues to identify Plaintiff Pineda, Defendant AERI NHNH FF noticed his deposition. (Declaration of Grace Mehta (“Mehta Decl.”), Ex. A.) Plaintiffs’ counsel PB F responded to the deposition notice for Plaintiff Pineda and stated, “[p]lease do note, that but for Oo F-& one exception, we have not spoken with Mr. Pineda since he was contacted directly by AERI’s F&F NN agent, Jonathan Fannuci, to have him sign a settlement agreement of all claims. We understand -=|-= NY that he is working for AERI and as there is now a conflict, we cannot produce him for the NY NY deposition that I understand you set for tomorrow.” (Mehta Decl., Ex. B.) As such, Plaintiffs’ OO VY motion should be denied as Plaintiff Pineda is clearly an improper class representative. F&F» NY Cc, Different Contracts and Collective Bargaining Agreements with Different Policies aun KY and Practices Apply to Class Members. BAB NY NIE The facts show that no common issues predominate regarding any of Plaintiffs’ claims. NY Plaintiffs’ claims are limited to their unique work experiences. Their claims are not susceptible to SoS LEWIS Nn BRISBOIS BISGAARD 125569104.1 5 & SMITH LLP ATTORNEYS AT LAW DEFENDANT’S OPPOSITION TO MOTION FOR CLASS CERTIFICATION = class-wide proof or class-wide answers. Plaintiffs cannot demonstrate commonality, typicality, adequacy, or superiority with respect to their unpaid wage claims, meal period claims, rest period NY claims, or business expense claims. Their other claims similarly fail because they are purely oO derivative. As such, AERI respectfully requests that the Court strike all class allegations from > Plaintiffs’ operative Complaint and issue an Order instructing Plaintiffs to proceed with their ana claims against AERI in their individual capacity only. ADB II. LEGAL ARGUMENT A. Plaintiff's Burden on a Motion for Class Certification. fF In class certification motions, the burden of proof is on the party seeking certification. So (Washington Mutual Bank v. Superior Court (2001) 24 Cal.4th 906, 922.) To certify a class, a mt CSC plaintiff must overcome “meaningful obstacles” to satisfy their burden that, by design, is “difficult = to meet.” (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 441.) NRO FOO California Code of Civil Procedure section 382 authorizes class actions “when the question & FO is one of a common or general interest, of many persons, or when the parties are numerous, and it F&F FO is impracticable to bring them all before the court.” Additionally, Un The party advocating class treatment must demonstrate the existence of an BNHeABRA F&F ascertainable and sufficiently numerous class, a well-defined community of interest, and substantial benefits from certification that render proceeding as a class superior to the alternatives. In turn, the community of interest requirement embodies three factors: (1) predominant common questions of law or fact; (2) class representatives FF with claims or defenses typical of the class; and (3) class representatives who can adequately represent the class. F 6 (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1021) (internal F&F NKR citations omitted.) KY = A plaintiff's burden includes submitting “substantial evidence” proving each element Ne NY required for class certification. (Fireside Bank v. Superior Court (2007) 40 Cal.4th 1069, 1089; OO KY Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 328.) “ [I]f a class action ‘will &»_ KY splinter into individual trials,” common questions do not predominate and litigation of the action in KRY an the class format is inappropriate.” (Arenas v. El Torito Restaurants, Inc. (2010) 183 Cal.App.4th Dn NY 723, 732.) Trial courts deciding whether to certify a class must consider not just whether common NY A questions exist, but also whether it will be feasible to try the case as a class action. (Duran v. U.S. So LEWIS nv BRISBOIS BISGAARD 125569104.1 6 & SMITH LLP ATTORNEYS AT LAW DEFENDANT’S OPPOSITION TO MOTION FOR CLASS CERTIFICATION = Bank National Assn. (2014) 59 Cal.4th 1, 27.) In a wage and hour case such as this one, Plaintiffs must also include an explanation to the NYO Court as to how wage and hour violations will be demonstrated on a class-wide basis via common OW proof. (Esparza v. Safeway Inc. (2019) 36 Cal.App.5th 42, 54 [holding that the failure to pay meal > and rest period premiums alone is not a certifiable theory and that a plaintiff must demonstrate Beno how liability will be established via common proof. ].) B. Plaintiffs’ Unpaid Wage Claims are Not Appropriate for Class Treatment. FAN Plaintiffs’ Motion seeks to certify claims alleging that Defendants’ employees are not paid for all hours worked. More specifically, Plaintiffs alleges that Defendants lacked written policies So that applied to all of the class members and the Plaintiffs’ wage statements show they were not mt CC properly compensated for all hours worked. These claims are patently false and not supported by —&§ evidence. me KY In support of certifying Plaintiffs’ unpaid wage claims, Plaintiffs attach “Exhibits 4-6” to WO their motion, which purports to be payroll and time records. Plaintiffs’ Exhibits 4-6 are not fF om properly identified in Plaintiffs’ memorandum of points and authorities or identified or DBA mom authenticated in any declaration in support of Plaintiffs’ Motion. As such, Plaintiffs’ Exhibits 46 should not be considered in support of Plaintiffs’ Motion. However, should the Court consider the NH records in Plaintiffs’ Exhibits 4-6, the records show the opposite of what Plaintiffs’ claim. DB Despite properly identifying or authenticating Exhibits 4—6, Plaintiffs appear to reference it CO in support of their Motion as follows: CFS KN Plaintiff's theory of liability is that Defendant failed to pay minimum and overtime -|§ NO wages to the class members by failing to adequately ensure that hours worked were accurately recorded, and by failing to pay employees for all hours due. Plaintiffs NY NY wage statements frequently demonstrated that Plaintiffs were required to work overtime, nor did they indicate any extra wages were paid for the overtime worked BW NY or that premium pay was dispensed for the failure to take lawfully required meal and rest periods. See, AERI Sample Documents, Set 1, pg. 2, 5, 8, 12, 16, 20, and Fs NY Set 2, pg. 3, 11, 15, 19, 22, 27, 31, 35, 39, 43, 47, 51. (Plaintiffs’ Motion for Class Certification, p. 7, 17, Ins. 1-9.) Ne ua The records in Plaintiffs’ Exhibits 4-6, including those Plaintiffs referenced above, do not Dn NY support Plaintiffs’ theory of liability. Rather, they disprove it. For example, pages 1 and 2 of ArnI NY Plaintiffs’ Exhibit 4 (what Plaintiffs appear to cite as “Set 1” in the Motion) clearly correspond CSCS LEWIS nv BRISBOIS BISGAARD 125569104.1 7 & SMITH LLP ATTORNEYS AT LAW DEFENDANT’S OPPOSITION TO MOTION FOR CLASS CERTIFICATION = and show that this individual worked a total of 71.89 hours for this pay period, 31.89 of which were overtime hours. It is unclear why Plaintiffs fail to reference the first page of this exhibit as it NO shows this individual was paid double time for all of his overtime work and otherwise properly WO compensated. A review of the other records in Plaintiffs’ Exhibits 4—6 similarly show that each of > the sample employees were properly compensated for all hours worked in accordance with aA California law and the applicable CBA. DB As the majority of AERI employees were/are subject to the terms and conditions of the NI applicable CBA, they were/are required to follow those terms and conditions which include but Fe are not limited to overtime, double time, meal periods, and rest periods. As such, the facts show Seo that no common issues predominate regarding Plaintiffs’ unpaid wage claims as both the policies CS governing wages, set forth by the applicable CBA and the records in Plaintiffs’ Exhibits 4-6 _=_ =| clearly show that AERI employees were properly compensated for all hours worked in accordance |= KRY with California law and in conformance with the applicable union agreement governing the oO FF respective employees’ employment. FF FF 1. Plaintiffs fail to offer substantial evidence in support of their unpaid wage FF a theories. BAB FF Plaintiffs fail to introduce meaningful or compelling evidence in support of their unpaid AHA FF wage Claims. There is no evidence of an unlawful policies, written or otherwise. Instead, all FB F§ Plaintiffs introduced was the following: (1) unauthenticated examples of employee time and CBO F& payroll records and (2) the deposition testimony of Lawrence Kahn. Plaintiffs then boldly assert FSF NY that this evidence is enough to demonstrate that there is a certifiable unlawful class-wide policy NY = here and that liability will be shown by common evidence at trial. This falls well below Plaintiffs’ NY NY evidentiary burden at certification. NKR &} Plaintiffs also refer to handwritten clock-in and clock-out records. These handwritten time F}- NKR entries were only applicable to work on the Campfire Project during the brief time period AERI NY a worked as a subcontractor to Phillips & Jordan. These records were compiled by Phillips & Dn NY Jordan and later sent to SouthEast Personnel Leasing, Inc. (“SPLI”) who utilized the time entries NY SAI to create and issue the employees’ wage statements. (Mehta Decl., Ex. C, Deposition of Lawrence LEWIS rev BRISBOIS BISGAARD 125569104.1 8 & SMITH LLP ATTORNEYS AT LAW DEFENDANT’S OPPOSITION TO MOTION FOR CLASS CERTIFICATION = Kahn (“Kahn Depo.”), 57:1-59:17.) AERI has no reason to believe that employees were falsely reporting their own work hours. NO Further, Plaintiffs’ Exhibits 4-6 clearly show that hours worked were clearly recorded HR down to the decimal. For example, pages | and 2 of Plaintiffs’ Exhibit 4 (what Plaintiffs appear to ee cite as “Set 1” in the Motion) clearly show that this individual worked for a total of 71.89 hours en during that pay period. Additionally, as another example, Plaintiffs’ Exhibit 5, pages 3-4 show ND that this individual worked 40.33 total hours for this pay period. This individual’s time record shows that they worked two hours overtime on March 9, 2022. (Plaintiffs’ Exhibit 5, p. 4.) Those fF two hours of overtime are clearly stated on the corresponding wage statement showing double So time pay for those two overtime hours. (Plaintiffs’ Exhibit 5, p. 3.) Thus, the time records/wage S&S statements clearly provide no evidence of a certifiable unlawful policy or practice here, nor any -& —_ such constructive notice that any time-records, handwritten or otherwise, sent to the applicable [|= NY Professional Employer Organization (“PEO”), in Plaintiffs’ case SPLI, were inaccurate. OO FF Plaintiffs then point to the Deposition of Lawrence Kahn to support certifying Plaintiffs’ FF FF unpaid wages claims: FF A Defendant further identified that there existed no personnel that were directly FF responsible for proper compliance with payroll and time records, only a general AA overseer meant to ensure “health and safety” of personnel. See, Depo of Lawrence FF Kahn, pg. 78, In. 7-15. Individual time cards for which employees could record their hours were similarly not kept but a “sign in and sign out” sheet was used. See, TBE FF Depo of Lawrence Kahn, pg. 79, In. 1-13. This is an inaccurate representation of the deposition testimony. CO F- (Plaintiffs’ Motion for Class Certification, p. 7, 417, Ins. 9-13.) CF NY Plaintiffs misstate the deposition testimony and fails to account for the agreement between -= NKR |}AERI, Phillips & Jordan, and PG&E and AERI’s agreement with the IBEW. (Akan Decl., 49 3-5, KR NY Exs. A, B.) Mr. Kahn testified that AERI employees and others working for Phillips & Jordan WO NY were required to complete a sign-in/sign-out sheet at the start and end of each day. (Mehta Decl., KY FF Ex. C, Kahn Depo., 76:15—22.) The sign-in and sign-out sheets were located at Phillips & NY a Jordan’s trailer at the main worksite location organized by PG&E. (Ibid.) DB KRY Additionally, Mr. Kahn stated that for safety reasons and also practical reasons due to AI NY distance, employees could not go back to the trailer to sign-in and sign-out for meal and rest CS LEWIS nN BRISBOIS BISGAARD 125569104.1 9 & SMITH LLP ATTORNEYS AT LAW DEFENDANT’S OPPOSITION TO MOTION FOR CLASS CERTIFICATION = breaks. (/d. at 77:6—78:6.) Instead, employees were to complete a “Job Safety Analysis Form” to indicate their breaks were properly taken. (Jbid.) PG&E also encouraged employees to take their NYO breaks by providing food for the employees to take with them to their respective job sites. (Jbid.) OO The “general overseer” Plaintiffs refer to in their Motion acted as an additional safeguard to ensure > that AERI employees were taking all required breaks as practicable. en Plaintiffs further claim “[d]efendant further identified that there existed no personnel that BD were directly responsible for proper compliance with payroll and time records.” (Plaintiffs’ NKQN Motion for Class Certification, p. 7, § 17, Ins. 9-14.) This misstates the deposition testimony and fe fails to account for the IBEW’s written policies as well as the PG&E’s contractual requirements. So (See Akan Decl., 4, Ex. A, B.) Mr. Kahn further detailed the safeguards in place to ensure AERI _ CS employees took all required breaks and also explained in detail why having a specific person with =| _ each crew directly responsible for compliance would be impractical. He explains: RH | [F]rom doing quality control over both the sign-in, sign-out period, as well as the HOH FF review of the JSA forms, which showed that the personnel were filling those in. I was also directly involved in a lot of the briefings to the employees that told them ek, FF that they needed to do these things in order to -- in order to meet these requirements, but there is simply no way to know when you have employees spread F& A over a very, very wide geographic area, you have to trust that when you tell them it is company policy to take your breaks and to not skip your breaks that they won't, BAB FF that — you can't have a supervisor with every single crew all the time without quintupling the price of the work to be done, making it unaffordable. Even if we FF did, the questions is well, how do we know that they are telling the truth? So you BAH would have to have people watching the watchers. Who's watching them? At some F&F point, you just have to trust that people are going to follow company policy when it is in their favor. BO (Mehta Decl., Ex. C, Kahn Depo., 88:21—-89:14.) Fo NKR Lastly, Plaintiffs fail to account for the fact that these practices were only applicable to = NK employees who worked on this Project during the short period of time where AERI acted as a NY NY subcontractor for Phillips & Jordan on this specific PG&E Project. (Akan Decl., 6; Mehta Decl., Be NY Ex. C, Kahn Depo., 115:1-18.) Fs KY In short, Plaintiffs’ Motion falls well short of the “substantial evidence” required to KY A achieve class certification of these unpaid wage claims. The critical portions of Plaintiffs’ Dn NY certification theory are supported by false claims and misstated deposition testimony that are vYe CAN easily disproved by the actual deposition testimony and payroll and time records in Plaintiffs’ own LEWIS nv BRISBOIS BISGAARD 125569104.1 10 & SMITHLLP ATTORNEYS AT LAW, DEFENDANT’S OPPOSITION TO MOTION FOR CLASS CERTIFICATION = exhibits. As such, certification of Plaintiffs’ unpaid wages claims must be denied. 2k Resolution of Plaintiffs’ unpaid wage allegations undeniably require NH individual inquiries not suitable to class treatment. BN OHO Under Brinker, when there is no evidence of a uniform unlawful policy or practice Fe resulting in off-the-clock work, as is the case here, there is a rebuttable presumption that en employ