Lubin v. Wackenhut Corp.

• Decision Date: 21 November 2016
• Docket Number: B244383
• Citation: 5 Cal.App.5th 926,210 Cal.Rptr.3d 215
• Court: California Court of Appeals Court of Appeals
• Parties: Nivida LUBIN et al., Plaintiffs and Appellants, v. The WACKENHUT CORPORATION, Defendant and Respondent.

5 Cal.App.5th 926

210 Cal.Rptr.3d 215

Nivida LUBIN et al., Plaintiffs and Appellants,

v.The WACKENHUT CORPORATION, Defendant and Respondent.

B244383

Court of Appeal, Second District, Division 4, California.

Filed November 21, 2016

Weinberg, Roger & Rosenfeld, Emily P. Rich, Theodore Franklin, Manuel A. Boigues, Alameda; Posner & Rosen, Howard Z. Rosen, Jason C. Marsili, Brianna M. Primozic, Los Angeles; James R. Hawkings, James R. Hawkings, and Gregory E. Mauro, for Plaintiffs and Appellants.

Gibson Dunn & Crutcher, Theodore J. Boutrous, Jr., Theane Evangelis, Los Angeles, Bradley J. Hamberger, Jennifer E. Rosenberg, Los Angeles; Gordon & Rees, Stephen E. Ronk, Los Angeles, Mollie Burks-Thomas, and Michelle L. Steinhardt, Los Angeles, for Defendant and Respondent.

Horvitz & Levy, John A. Taylor, Jr., Felix Shafir, and Robert H. Wright, Encino, for Chamber of Commerce of the United States of America, National Association of Security Companies, and California Association of Licensed Security Agencies as Amici Curiae on behalf of Defendant and Respondent.

EPSTEIN, P.J.

Appellants Nivida Lubin, Sylvia M. Maresca, and Kevin Denton (together plaintiffs) filed this action on behalf of themselves and similarly situated persons, alleging defendant and respondent The Wackenhut Corporation (Wackenhut)¹ violated California labor laws by failing to provide employees with off-duty meal and rest breaks and by providing inadequate wage statements. The trial court initially granted plaintiffs' motion for class certification. However, as the case approached trial, the United States Supreme Court reversed a grant of class certification in Wal – Mart Stores, Inc. v. Dukes (2011) 564 U.S. 338, 131 S.Ct. 2541, 180 L.Ed.2d 374 (Wal – Mart ). Relying on Wal – Mart, Wackenhut moved for decertification. The trial court granted the motion. Plaintiffs appeal, contending that decertification was not warranted by a change in circumstances or case law and that the court used improper criteria in granting the motion for decertification. We conclude that the trial court erred in granting the motion.

FACTUAL AND PROCEDURAL SUMMARY

Wackenhut is an international security solutions company, employing thousands of private security officers who are assigned to provide physical security services to a variety of clients, including commercial businesses, governmental entities, gated communities, industrial facilities, oil refineries, banks, warehouses, medical clinics, schools, and retail centers. In California, Wackenhut delivers security services from eight area branch offices: San Diego, Orange County, Los Angeles, San Fernando Valley, Riverside, San Jose, San Francisco, and Sacramento. These offices are overseen by general managers, who report to a single regional vice-president responsible for the California region.

Plaintiffs are former security officers employed by Wackenhut. In the operative pleading, they allege that Wackenhut violated the California Labor Code by failing to provide off-duty meal periods, failing to authorize and permit off-duty rest breaks, and providing inadequate wage statements. Employers generally are required to provide a 30-minute off-duty meal break for employees working more than five hours. (Cal. Code Regs., tit. 8, § 11040, subd. (11)(A).) An on-duty meal period is permitted only when the nature of the work prevents an employee from being relieved of all duty and the parties agree in writing to an on-duty paid meal break. The written agreement must include a provision allowing the employee to revoke it at any time. (Ibid .) Labor Code Section 226, subdivision (a) requires employers to provide an accurate itemized wage statement in writing to each employee. Among other things, the statement must show the total hours worked by the employee, the inclusive dates of the period for which the employee is paid, all applicable hourly rates in effect during the pay period, and the corresponding number of hours the employee worked at each hourly rate.

Prior to class certification, plaintiffs moved to compel production of the on-duty meal agreements for all Wackenhut security officers working in California. The trial court denied the motion, finding the production would be burdensome and oppressive. Its denial was without prejudice to "further, more specific requests or interrogatories." In September 2009, plaintiffs, on behalf of themselves and all others similarly situated, moved for class certification. Their motion proposed the following five subclasses: "(a) All non-exempt Security Officers employed by Wackenhut in California from January 7, 2001 through on or about May 23, 2008 who at the time of hire did not sign an on-duty meal period agreement that stated that the Security Officers could revoke the agreement and who were not provided with an off-duty meal period; [¶] (b) All non-exempt Security Officers employed by Wackenhut in California during the Class Period to work at one-officer posts and who, in accordance with the agreement between Wackenhut and its clients, were not provided an off-duty meal period; [¶] (c) All non-exempt Security Officers employed by Wackenhut in California during the Class Period to work at posts with multiple officers and who, in accordance with the agreement between Wackenhut and its clients, were not provided an off-duty meal period; [¶] (d) All non-exempt Security Officers employed by Wackenhut in California during the Class Period who were not authorized and permitted to take rest breaks; [and] [¶] (e) All non-exempt Security Officers employed by Wackenhut in California who were not provided itemized wage statements during each pay period of the Class Period that contained all information specified in Labor Code section 226, subd. (a)."

On March 3, 2010, the trial court granted plaintiffs' motion, certifying the class as " ‘all non-exempt Security Officers employed by Wackenhut in California during the Class Period of January 7, 2001 to the present,’ "² excepting proposed subclasses which the court found were unascertainable. Plaintiffs propounded an interrogatory on March 10, 2010, asking Wackenhut to provide the date on which each class member signed a meal period agreement that included revocation language. In a tentative ruling on May 6, 2010, the court stated that "[m]erits discovery in a certified class action which involves as many current and former employees as this case will inevitably be burdensome and time consuming. The parties may want to consider whether an agreement for statistically valid sampling might be acceptable in lieu of full discovery."

On November 19, 2010, Wackenhut objected to plaintiffs' interrogatory as unduly burdensome and instead offered plaintiffs a reasonable opportunity to inspect responsive documents. After several meet and confer sessions between November 2010 and January 2011, the parties agreed to use statistical sampling in lieu of document production or inspection. They entered into a stipulation under which Wackenhut agreed not to challenge the sampling on the grounds that a less than statistically significant number of personnel files were sampled or that there was a bias in the sample. Wackenhut "reserve[d] all rights to challenge, contest, dispute and/or object to the original 1,200 files selected by Plaintiffs for sampling as being an inappropriate sample for any [other] reason."

On June 20, 2011, the United States Supreme Court reversed a class certification order in Wal – Mart, supra, 564 U.S. 338, 131 S.Ct. 2541. Subsequently, on September 23, 2011, Wackenhut moved for decertification, citing Wal – Mart as a significant change in law justifying reconsideration of class certification. In their opposition to Wackenhut's motion, plaintiffs again proposed five subclasses as a way to obviate some of the concerns raised in Wackenhut's motion.³

Following hearings on Wackenhut's motion, the trial court directed Wackenhut to submit a proposed order granting decertification. Before the court entered a formal order, the California Supreme Court issued its decision in Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 139 Cal.Rptr.3d 315, 273 P.3d 513 (Brinker ), resolving issues in the handling of wage and hour class certification motions. The parties stipulated to further briefing on application of Brinker and decertification of the class. The court conducted an additional hearing on the Brinker briefings but declined to modify its previous ruling decertifying the class. The court's order granting Wackenhut's decertification motion stated two main bases for its ruling: (1) that individualized issues predominated; and (2) that there was no way to conduct a manageable trial of plaintiffs' claims.⁴ The order was entered on August 1, 2012. An order denying certification to an entire class is an appealable order. (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435, 97 Cal.Rptr.2d 179, 2 P.3d 27.)

This timely appeal followed.

DISCUSSION

I

A. Standard of Review

"The party advocating class treatment must demonstrate the existence of an 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. [Citations.] ‘In turn, the "community of interest requirement embodies three factors: (1) predominant common questions of law or fact; (2) class representatives with claims or defenses typical of the class; and (3) class representatives who can adequately represent the class." ’ [Citation.]" (Brinker, supra, 53 Cal.4th at p. 1021, 139 Cal.Rptr.3d 315, 273 P.3d 513.)

The factor at issue in this appeal is predominance. "The ‘ultimate question’ the element of predominance presents is whether ‘the issues which may be jointly tried, when compared with those requiring separate adjudication, are so numerous or substantial that the maintenance of a class action would be advantageous to the judicial process and to the litigants.’ [Cita...