Barriga v. 99 Cents Only Stores LLC.

• Decision Date: 26 June 2020
• Docket Number: E069288
• Court: California Court of Appeals Court of Appeals
• Parties: Sofia Wilton BARRIGA, Plaintiff and Appellant, v. 99 CENTS ONLY STORES LLC., Defendant and Respondent.

51 Cal.App.5th 299

265 Cal.Rptr.3d 1

Sofia Wilton BARRIGA, Plaintiff and Appellant,

v.99 CENTS ONLY STORES LLC., Defendant and Respondent.

E069288

Court of Appeal, Fourth District, Division 2, California.

Filed June 26, 2020

OPINION

McKINSTER Acting P. J.

I.INTRODUCTION

Plaintiff Sofia Wilton Barriga filed this lawsuit against 99 Cents Only Stores LLC, (99 Cents) on her own behalf and on behalf of similarly situated current and former nonexempt employees of 99 Cents hired before October 1, 1999, and who worked the graveyard shift after January 1, 2012, until the conclusion of her lawsuit, pleading various Labor Code violations and violation of the unfair competition law. ( Bus. & Prof. Code, § 17200 et seq. ) Plaintiff alleged 99 Cents has a zero-tolerance policy that requires its stores to lock their doors at closing time, therefore, forcing nonexempt, nonmanagerial employees, who work the graveyard shift and clock out for their meal break or at the end of their shift, to wait for as long as 15 minutes for a manager with a key to let them out of the store. According to plaintiff, 99 Cents does not pay its employees for the time they have to wait be let out of the store, and its zero-tolerance policy denies employees their full half-hour meal break. In addition, plaintiff alleges 99 Cents does not promptly pay employees the wages they are owed upon termination or resignation and does not provide employees with accurate wage statements.

Plaintiff moved the trial court to certify two classes: (1) "Off the Clock Class," consisting of employees who were locked in the store and not paid for the time they waited, and (2) "Meal Period Class," comprised of employees who were denied full meal breaks because they were locked in. Thereafter, 99 Cents opposed plaintiff's motion to certify the proposed classes, contending there is no community of interests among putative class members, and the lack of common issues among putative class members will render a class action unmanageable. In support of its opposition, 99 Cents submitted 174 declarations from current and former nonexempt employees to establish, inter alia, that its closed-door policy was often observed in the breach, meaning graveyard shift employees could leave the store immediately without waiting to be let out, and those employees who did have to wait were let out promptly and paid for the time they waited. Only 53 of the declarants were members of the proposed classes. All 174 declarations included an identical or nearly identical paragraph stating the declarants knew their declarations could be used by 99 Cents to defend itself against a class action lawsuit about its wage policies and practices, and an identical or nearly identical paragraph purporting to state the declarants had not been coerced into signing their declaration and understood what they were signing.

Plaintiff deposed 12 of the employee declarants who were members of the proposed classes. Most of the deponents clearly testified they understood what they were signing, and they did so freely and without coercion or promise of promotion or a pay raise. However, some of the deponents testified they had no idea what the lawsuit was about or even why they had been called upon to testify. And, most of the deponents testified they had been summoned, during working hours, to an office, by a representative from human resources, and presented with a declaration for their signature.

Plaintiff moved to strike all 174 declarations on the grounds the process by which they had been obtained was improper, and because they were substantively inconsistent with the subsequent deposition testimony of 12 of the declarants. Concluding it lacked the statutory authority to strike the declarations, the trial court denied plaintiff's motion to strike. In the alternative, the court concluded there was no coercion to justify striking the declarations from putative class members, and it lacked the authority to review for coercion let alone strike any of the declarations from nonputative class members. And, based on all 174 declarations, the court concluded plaintiff had not demonstrated a community of interests or a commonality of issues among putative class members. Therefore, the court denied plaintiff's class certification motion. Plaintiff appeals those orders.

Adopting the standards articulated in Gulf Oil Co. v. Bernard (1981) 452 U.S. 89, 101 S.Ct. 2193, 68 L.Ed.2d 693 ( Gulf Oil ), California courts have recognized the trial court has both the duty and the authority to exercise control over precertification communications between the parties and putative class members to ensure fairness in class actions.¹ Moreover, the lower federal courts have consistently held that an ongoing business relationship between the class opponent and putative class members—especially a current employer-employee relationship—is rife for abuse and coercion. Therefore, those courts have cautioned that statements obtained by the class opponent from its employees, to oppose a class certification motion, must be carefully scrutinized for actual or threatened abuse. And, if the trial court concludes the statements were obtained under coercive or potentially abusive circumstances, it has discretion to either strike those statements entirely or discount the evidentiary weight to be given to them. In addition, some lower federal courts have concluded the trial court's duty and authority to protect the integrity and fairness of actions extends to communications with a defendant's employees who are not currently or potentially members of the class.

The record demonstrates the trial court in this case was unaware of the need to scrutinize 99 Cents' declarations carefully and was either unaware of or misunderstood the scope of its discretion to either strike or discount the weight to be given the 174 declarations, including the declarations of employees who were not members of the putative classes, if it concluded they were obtained under coercive or abusive circumstances. Therefore, we reverse the orders denying plaintiff's motion to strike 99 Cents' declarations and class certification motion, and we remand for the trial court to reconsider them.²

II.FACTS AND PROCEDURAL HISTORY

A. Plaintiff's Complaint and Class Certification Motion.

In her complaint for damages, plaintiff alleged she was employed by 99 Cents as a nonexempt worker from approximately 1997 until her termination on or about April 3, 2013. According to plaintiff, 99 Cents' "policies and practices unlawfully require off-the-clock work. Defendants^{[3 ]} have a policy of locking their retail stores during the graveyard shift while the stores are being stocked. As part of their policy and practice, Defendants also require employees who are leaving the store for a meal break or at the end of their shifts to clock out and then wait up to 15 minutes for a manager to inspect the premises and/or unlock the doors. Defendants do not compensate employees for the time they spend while waiting to be released from the premises, during which time they are subject to Defendants' control."

Plaintiff alleged 99 Cents acted in furtherance of policies and practices that denied her and the members of the proposed classes of: (1) compensation for all hours worked, in violation of Labor Code section 1194 and the Industrial Welfare Commission's wage order No. 7 ;⁴ (2) half-hour off-duty meal breaks, in violation of Labor Code section 226.7 and wage order No. 7 ; (3) payment for wages earned in a timely manner upon termination or resignation, in violation of Labor Code sections 201 and 202 ; and (4) accurate wage statements, in violation of Labor Code section 226, subdivision (a). In addition, plaintiff alleged 99 Cents engaged in unlawful, deceptive, and/or unfair business practices in violation of Business and Professions Code section 17200 et seq.

Plaintiff sought to bring her lawsuit on behalf of all similarly situated nonexempt employees of 99 Cents' California stores who worked the graveyard shift between the four years before she filed the lawsuit and the conclusion of the lawsuit. Plaintiff alleged (1) there was a well-defined community of interests in the lawsuit and the proposed class was easily ascertainable; (2) the class was estimated to be in excess of 1,000 individuals, so joinder of all affected class members was impractical; (3) the lawsuit involved common issues of law and fact regarding 99 Cents' "systematic course of illegal practices and policies throughout the State of California"; (4) plaintiff's individual claims were typical to the claims of class members; (5) plaintiff's counsel would provide fair and adequate representation to the classes; and (6) a class action was superior to individual lawsuits by members of the classes. Therefore, plaintiff prayed for an order certifying the lawsuit as a class action pursuant to Code of Civil Procedure section 382.

In her motion for class certification, plaintiff requested the trial court certify two opt-out classes: (1) "Off the Clock Class," which consisted of "All non-exempt, non-managerial employees of 99 Cents Only Stores retail store locations in the [S]tate of California who were hired any time before October 1, 1999, and who worked one or more shifts in a non-key holder position from January 1, 2012 through the date of final disposition of this action in which they clocked out to end their shift during overnight hours when the store was not open to the public"; and (2) "Meal Period Class," which consisted of "All non-exempt, non-managerial employees of 99 Cents Only Stores retail store locations in the [S]tate of California who were hired any time before October 1, 1999, and who worked one or more shifts in a non-key holder position from January 1, 2012 through the date of final disposition of this action in which they clocked out for a meal period during overnight hours when the store was not open to the public."⁵

According to plaintiff, 99...