231 F.R.D. 602 (C.D.Cal. 2005), CV04-1498 CBM, Wang v. Chinese Daily News, Inc.

Docket Nº:CV04-1498 CBM.
Citation:231 F.R.D. 602
Opinion Judge:CONSUELO BLAND MARSHALL, District Judge.
Party Name:Lynne WANG, Yu Fang Ines Kai, and Hui Jung Pao, on behalf of themselves and all others similarly situated, Plaintiffs, v. CHINESE DAILY NEWS, INC., et al., Defendants.
Attorney:Steven D. Atkinson, Cerritos, CA, Scott K. Dauscher, Atkinson, Andelson, Loya, Ruud & Romo, Cerritos, CA, for defendant-petitioner Chinese Daily News. Della Bahan, Jennifer Reisch, Peter Bibring, Bahan & Associates, Pasadena, CA, for plaintiffs-respondents.
Case Date:January 20, 2005
Court:United States District Courts, 9th Circuit, Central District of California
 
FREE EXCERPT

Page 602

231 F.R.D. 602 (C.D.Cal. 2005)

Lynne WANG, Yu Fang Ines Kai, and Hui Jung Pao, on behalf of themselves and all others similarly situated, Plaintiffs,

v.

CHINESE DAILY NEWS, INC., et al., Defendants.

No. CV04-1498 CBM.

United States District Court, C.D. California, Western Division.

January 20, 2005

Page 603

[Copyrighted Material Omitted]

Page 604

Steven D. Atkinson, Cerritos, CA, Scott K. Dauscher, Atkinson, Andelson, Loya, Ruud & Romo, Cerritos, CA, for defendant-petitioner Chinese Daily News.

Della Bahan, Jennifer Reisch, Peter Bibring, Bahan & Associates, Pasadena, CA, for plaintiffs-respondents.

AMENDED ORDER GRANTING PLAINTIFFS' MOTION FOR CLASS CERTIFICATION

CONSUELO BLAND MARSHALL, District Judge.

The matter before the Court is Plaintiffs' Motion for Class Certification. On November 15, 2004, counsel for the parties appeared before the Court, the Honorable Consuelo B. Marshall presiding. Upon consideration of the papers and arguments submitted, Plaintiff's Motion is GRANTED.

JURISDICTION

This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367.

BACKGROUND & PROCEDURAL HISTORY

Plaintiffs Lynne Wang, Yu Fang Ines Kai, and Hui Jung Pao, on behalf of themselves and all others similarly situated, filed this suit on March 5, 2004, alleging multiple labor violations by Defendant Chinese Daily News, Inc. pursuant to the Fair Labor Standards Act (" FLSA" ), the California Business and Professions Code § 17200 et seq. and the California Labor Code. Defendant publishes the largest Chinese language newspaper in North America. Plaintiffs are current and former employees of Defendant's Monterey Park office, which has nearly 200 employees. None of the Plaintiffs is a native English speaker, and some cannot read or write in English. Plaintiffs allege that Defendant violated California Labor laws by denying its employees the following protections: (1) overtime wages and statutory penalties to which they are entitled; (2) the opportunity to take meal and rest breaks or to receive appropriate penalties in lieu of such breaks; and (3) appropriate payroll records and itemized

Page 605

wage statements containing the information required by state law.

On June 24, 2004, Plaintiffs filed this Motion for Class Certification pursuant to the Federal Rules of Civil Procedure 23(b)(2) or, alternatively, 23(b)(3). Plaintiffs request certification of a class consisting of " [a]ll former, current, and future non-exempt employees of Defendant who worked at Chinese Daily News in Monterey Park, California at any time since March 5, 2000." This motion does not concern the FLSA claims, which require individual consent and cannot be litigated pursuant to Rule 23. Defendant filed a timely Opposition on July 26, 2004. Plaintiffs filed a timely Reply on August 8, 2004. The Court issued an order granting the class certification on November 23, 2004. On December 2, 2004, Defendant filed a Motion for Reconsideration, which the Court denied as moot based on its intent to issue this Amended Order addressing the various issues raised in the Motion for Reconsideration.

STANDARD OF LAW

Federal Rules of Civil Procedure Rule 23 (" FRCP 23" ) governs the certification of class actions. A class action must meet the requirements of Rule 23(a) and fall within one of three categories set forth in Rule 23(b). For a class to be certified under Rule 23(a), Plaintiffs must show that the following conditions are met: (1) the class is so numerous that joinder of all members is impractical; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representatives will fairly and adequately represent the interests of the class. See also Amchem Products, Inc. v. Windsor, 521 U.S. 591, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997).

In addition, Rule 23(b) requires one of the following subdivisions to be met: (1) there is risk of inconsistent or unfair adjudication; (2) the defendant acted on grounds generally applicable to the class, making injunctive or declaratory relief appropriate as to the class as a whole; or (3) common questions of law or fact predominate and class resolution is superior to other available methods for fair and efficient adjudication of the controversy. Rule 23(b).

A district court may certify a class only if, after " rigorous analysis," it determines that the plaintiff has established by sufficient evidence that all of the requirements set forth by Rule 23 are satisfied. See General Telephone Co. of the Southwest v. Falcon, 457 U.S. 147, 158-161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982). In determining whether an action warrants class treatment under FRCP 23, " the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met." Eisen, 417 U.S. at 177, 94 S.Ct. 2140. At this early stage of the litigation, the Court must only determine if the plaintiffs have proffered enough evidence to meet the requirements of FRCP 23, not weigh competing evidence. See Staton, et al. v. Boeing Company, 327 F.3d 938, 954 (9th Cir.2003). On a motion for class certification, the court " is bound to take the substantive allegations of the complaint as true." Blackie v. Barrack, 524 F.2d 891, 901 n. 17 (9th Cir.1975).

ANALYSIS

I. FRCP 23(a) Prerequisites to Class Certification are Satisfied

The Court finds that the class consisting of " [a]ll former, current, and future non-exempt employees of Defendant who worked at Chinese Daily News in Monterey Park, California at any time since March 5, 2000" satisfies the four prerequisites for class certification under Rule 23(a).

A. Numerosity

Rule 23(a)(1) provides that a class action may be maintained only if " the class is so numerous that joinder of all parties is impracticable." However, " impracticable" does not mean impossible; it refers only to the difficulty or inconvenience of joining all members of the class. See Harris v. Palm Springs Alpine Estates, Inc., 329 F.2d 909, 913 (9th Cir.1964). Although there is no fixed number of class members which either compels or precludes the certification of a

Page 606

class, " where a class is large in numbers, joinder will usually be impracticable." Jordan v. County of Los Angeles, 669 F.2d 1311, 1319 (9th Cir.1982), vacated on other grounds, 459 U.S. 810, 103 S.Ct. 35, 74 L.Ed.2d 48 (1982). " No exact numerical cut-off can be stated. Rather, the specific facts of each case must be examined." General Telephone Co. v. EEOC, 446 U.S. 318, 330, 100 S.Ct. 1698, 64 L.Ed.2d 319 (1980). Many courts have found that classes of fewer than 100 persons are sufficiently numerous to render joinder impracticable. Jordan, 669 F.2d at 1319 n. 10. In addition to the size of the class, the court may also consider the nature of the action, the size of the individual claims, the inconvenience of trying individual suits, and any other factors relevant to the practicability of joining all the class members. Jordan, 669 F.2d at 1319.

Plaintiffs present a declaration by a former reporter and deputy city editor stating that approximately 190 employees of CDN's Monterey Park office fall within the proposed class. See Chao Decl., ¶ 13. Defendant, however, contends that some of these employees are exempt and therefore do not fall within the definition of the class. Specifically, Defendant argues that reporters and sales department " account executives" are exempt and therefore should not be counted among the members of the class. Defendant further contends that employees with different job duties should be divided into subclasses and that each of these subclasses fails to satisfy the requirement of " numerosity."

These arguments are unpersuasive for several reasons. First, CDN's classification of reporters and account executives as " exempt" is being challenged by Plaintiffs in this case. Requiring Plaintiffs to show that reporters and account executives are " non-exempt" at this stage would involving addressing the success of their claims on the merits. In Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974), the Court found " nothing in either the language or history of Rule 23 that gives a court any authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action." See also Staton, et al. v. Boeing Company, 327 F.3d 938, 954 (9th Cir.2003) (finding that, in deciding whether or not to certify a class, the court must only determine if the plaintiffs have proffered enough evidence to meet the requirements of FRCP 23, not weigh competing evidence); Blackie v. Barrack, 524 F.2d 891, 901 n. 17 (9th Cir.1975) (in deciding a motion for class certification, the court " is bound to take the substantive allegations of the complaint as true" ). Moreover, it is Defendant who has the burden of proving that certain employees are exempt from California's wage and overtime protections, as the application of an exemption is an affirmative defense. See Ramirez, 20 Cal.4th at 794-95, 85 Cal.Rptr.2d 844, 978 P.2d 2 (citing Corning Glass Works v. Brennan, 417 U.S. 188, 196-97, 94 S.Ct. 2223, 41 L.Ed.2d 1 (1974)); Nordquist v. McGraw-Hill Broadcasting Co., 32 Cal.App.4th 555, 562, 38 Cal.Rptr.2d 221 (1995).

Even if this Court were to decide at some future time that two subclasses are appropriate (i.e. one subclass of employees who Defendant acknowledges are non-exempt and another subclass of employees who Defendant classifies as exempt), each subclass would still meet the numerosity requirement of Rule...

To continue reading

FREE SIGN UP