Opinion
D071649
06-07-2018
ADRIAN SOLIS, Plaintiff and Appellant, v. AMERI-FORCE MANAGEMENT SERVICES, INC. et al., Defendants and Respondents.
Setareh Law Group, Shaun Setareh, H. Scott Leviant and Thomas Segal for Plaintiff and Appellant. Dillon Gerardi Hershberger Miller & Ahuja, Timothy P. Dillon and Sunjina K. Ahuja, for Defendant and Respondent Ameri-Force Management Services, Inc. Paul, Plevin, Sullivan & Connaughton, Michael C. Sullivan, Aaron A. Buckley and Kara Siegel, for Defendant and Respondent International Marine and Industrial Applicators, LLC.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2014-00013506-CU-OE-CTL) APPEAL from an order of the Superior Court of San Diego County, Randa Trapp, Judge. Affirmed. Setareh Law Group, Shaun Setareh, H. Scott Leviant and Thomas Segal for Plaintiff and Appellant. Dillon Gerardi Hershberger Miller & Ahuja, Timothy P. Dillon and Sunjina K. Ahuja, for Defendant and Respondent Ameri-Force Management Services, Inc. Paul, Plevin, Sullivan & Connaughton, Michael C. Sullivan, Aaron A. Buckley and Kara Siegel, for Defendant and Respondent International Marine and Industrial Applicators, LLC.
I
INTRODUCTION
Adrian Solis appeals from an order denying class certification in his lawsuit against Ameri-Force Management Services, Inc. (Ameri-Force) and International Marine and Industrial Applicators, LLC (International Marine) for wage and hour law violations. Solis contends the court abused its discretion in denying class certification because he met his burden of establishing common issues predominated over individual issues and a class action was the superior means of adjudicating the class claims.
International Marine filed a respondent's brief and Ameri-Force filed a notice joining in International Marine's brief.
We conclude the court did not abuse its discretion in denying class certification because Solis failed to show the class claims were the result of sufficiently uniform practices and procedures to permit common proof of liability. He also failed to show any issues not susceptible to common proof could be proven efficiently and manageably within a class setting. Consequently, we affirm the order.
II
BACKGROUND
A
Solis sued International Marine and Ameri-Force for various wage and hour law violations. International Marine performs marine vessel preservation and auxiliary tasks at three shipyards and two Naval bases in San Diego under contracts with the government or subcontracts with other government contractors. International Marine staffs its contracts with permanent and temporary employees. Ameri-Force provides temporary employees to International Marine in San Diego.
The parties' briefs refer to the employees at issue in this appeal as International Marine's employees regardless of whether they worked directly for International Marine or were supplied to International Marine through Ameri-Force. We do the same.
International Marine's hourly employees include supervisors, painters, riggers, technicians, sandblasters, administrative professionals, cleaners, laborers, and drivers. Solis worked for International Marine as a painter and laborer at various times between 2010 and 2013.
To enter and leave the facility where he worked, Solis had to go through security checks, which took approximately 15 to 20 minutes. Several of Solis's coworkers also had to undergo security checks each day. The security checks took from five to 30 minutes. At least some of Solis's coworkers were not paid for this time.
Solis also had to don protective gear before beginning work and doff it at the end of his shift. Each donning and doffing took approximately three minutes. He was not paid for this time. Several of Solis's coworkers also had to spend uncompensated time donning and doffing protective gear at the beginning and end of their shifts.
International Marine had no written meal or rest break policy. The facility where Solis worked used a bell system for meal and rest breaks. For meal breaks, the bell sounded three times: at the beginning of the break, five minutes before the end of the break, and at the end of the break. Solis doffed his protective gear after the bell sounded for the start of the break and he donned his gear when the five-minute warning bell sounded because he had to be back at work when the final bell sounded. Several of his coworkers also received meal breaks based on a bell system, where the first bell indicated the beginning of the break and a warning bell sounded five minutes before the end of the break. They also doffed their protective gear when the first bell sounded and donned it when the five-minute warning bell sounded.
According to Solis, the security check requirement made it impossible for him and his coworkers to leave the premises for their meal breaks. In addition, the time required to don and doff protective gear resulted in the meal breaks being less than the 30 minutes required by law. He and several of his coworkers also were not provided a second meal break for shifts of more than 10 hours, and they routinely did not receive rest breaks because of the pressure to get work done and the need to don and doff protective gear.
Based on the above evidence, Solis moved for an order certifying six classes of International Marine's and Ameri-Force's hourly or nonexempt employees employed at shipyards in San Diego. The classes were: (1) a security check class including all such employees from April 29, 2010 to present; (2) a donning and doffing class including all such employees from April 29, 2010 to present who had to don and doff protective gear before and after working; (3) a meal break class including all such employees from April 29, 2010 to present who worked a shift of five hours or more; (4) a rest break class including all such employees from April 29, 2010 to present who worked a shift of three and a half hours or more; (5) a wage statement penalties class including all such employees from April 29, 2013 to present who were members of one or more of the preceding classes; and (6) a waiting time penalties class including all such employees who were members of one or more of the preceding classes and who separated from their employment with the defendants on or after April 29, 2011.
B
International Marine opposed class certification, arguing Solis had not established that common issues predominated over individual issues or that class treatment was a superior means of resolving the class claims. To support its position, International Marine submitted evidence showing its hourly employees may work in one or more locations depending on their positions and project assignments. The shipyards are operated by different companies and the bases are operated by the United States Navy. Each shipyard and each base has its own policies, practices, and procedures. In addition, because both the shipyards and the bases host military vessels, the federal government imposes baseline security requirements on all employees working at the shipyards and the bases, including International Marine's employees. However, the policies and practices implementing the security requirements vary among the shipyards and the bases as the operators of the facilities have some discretion in determining how best to meet the security requirements.
International Marine's hourly employees work varying and fluctuating schedules. The schedule differences affect when and where employees must pass through security checks, how frequently they must do so, and how long it takes them to do so. Administrative employees may only visit the shipyards or bases once a week. Safety and quality-control employees, ship supervisors, and drivers pass through security checks multiple times a day at various locations according to the projects they need to visit. Production employees pass through security checks at least at the beginning of their shifts.
Some shipyards have multiple security gates with multiple lanes and turnstiles and employees may choose through which gate they wish to enter. Depending on the chosen gate, time, and whether the person is selected for a secondary security check, passing through a security check at a shipyard may take from a few seconds to several minutes. The bases have more security checks and it can take employees longer to pass through security there.
The work schedule differences also affect how employees are notified when to take meal and rest breaks as well as the timing and frequency of meal and rest breaks. Some supervisors notify employees when to take meal and rest breaks. Some employees keep track of their own breaks. Some employees coordinate their meal and rest breaks with members of their team. Employees assigned to projects at a shipyard using a bell system may take their breaks according to the bell system. Other employees ignore the shipyard's bell schedule. Some employees take their meal breaks at set times according to whatever shift they are working. Some aim to take a meal break at a certain time, but may take it earlier or later because of their preferences, because they get distracted with work, or because they are trying to finish up a project or task. Some take their meal break according to their preferences.
Some employees only take 30-minute meal breaks. Some take 45-minute or 60-minute meal breaks. Some split their meal breaks into two breaks. Employees who work a long enough shift to receive a second meal break sometime choose to waive the meal break, sometimes take a 30-minute break, and sometime take a longer break.
Employees spend their breaks at different locations and engage in different activities. Regardless of when or where employees take their breaks, International Marine permits employees to stop working and doff any project-specific protective gear before the break begins. It also permits employees to don any project-specific protective gear after they clock back in from the break. Different project teams follow different practices to ensure this occurs.
C
After considering the parties' evidence and arguments, the court denied the motion, finding "there are significant differing factual issues precluding class certification as the classes are defined. Specifically, there is no dispute that the class members worked at different locations at different times . . . . Evidence has been presented that class members performed diverse jobs and some class members performed different jobs at different times under the supervision of different supervisors, some of whom keep track of break times and others do not. Some supervisors indicated [breaks] with a bell system, but not all did. Protective gear varied with the type of job performed. They work different hours and different shifts at different locations which impacted the type of security they must go through and how many times during a day. In addition, they sometimes are selected for additional security. [¶] The court finds these predominate factual issues also weigh against a finding that the class action method is superior to other available methods for the fair and efficient adjudication of the controversy."
III
DISCUSSION
The Code of Civil Procedure authorizes class actions "when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court." (Code Civ. Proc., § 382.) "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." ' " (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1021 (Brinker).)
In this case, the court found Solis had not demonstrated that common questions of law or fact predominated and that class treatment was the superior means of adjudicating the class claims. "We review the trial court's ruling for abuse of discretion and generally will not disturb it ' "unless (1) it is unsupported by substantial evidence, (2) it rests on improper criteria, or (3) it rests on erroneous legal assumptions." ' [Citation.] We review the trial court's actual reasons for granting or denying certification; if they are erroneous, we must reverse, whether or not other reasons not relied upon might have supported the ruling." (Ayala v. Antelope Valley Newspapers, Inc. (2014) 59 Cal.4th 522, 530 (Ayala).)
"To assess predominance, a court 'must examine the issues framed by the pleadings and the law applicable to the causes of action alleged.' [Citation.] It must determine whether the elements necessary to establish liability are susceptible of common proof or, if not, whether there are ways to manage effectively proof of any elements that may require individualized evidence." (Brinker, supra, 53 Cal.4th at p. 1024; accord, Ayala, supra, 59 Cal.4th at p. 533.)
Applying these standards in this case, the court had to first consider whether International Marine's practices and procedures for employee security checks, donning and doffing protective gear for rest and meal breaks, and second meal breaks were sufficiently uniform to permit classwide assessment. In other words, was there a common way to show whether International Marine's practices and procedures in these areas violated applicable state wage and hour laws? (See Ayala, supra, 59 Cal.4th at p. 533.) The court determined there was not sufficient uniformity to permit classwide assessment or common proof, and there is substantial evidence to support the court's determination. Indeed, International Marine's evidence, which we previously described and the court implicitly credited, shows significant disparities in International Marine's practices and procedures in these areas depending on employees' positions, shifts, project assignments, and work locations. (See Brinker, supra, 53 Cal.4th at p. 1022 [predominance is a factual question which an appellate court reviews for substantial evidence and presumes in support of the trial court's determination the existent of every fact the trial court could reasonably deduce from the record].) Consequently, Solis has not established the court abused its discretion in declining to certify the proposed classes because common questions did not predominate. (Brinker, supra, 53 Cal.4th at pp. 1051-1052 [class certification is properly denied if the class claim does not involve a uniform policy or there is no apparent common method for proving the claim]; Bradley v. Networkers Internat., LLC (2012) 211 Cal.App.4th 1129, 1156 [same].)
Even if Solis had established a uniform policy or common method of proof, he did not establish class treatment was the superior means of resolving the class claims. "In wage and hour cases where a party seeks class certification based on allegations that the employer consistently imposed a uniform policy or de facto practice on class members, the party must still demonstrate that the illegal effects of this conduct can be proven efficiently and manageably within a class setting." (Duran v. U.S. Bank National Assn. (2014) 59 Cal.4th 1, 29.) Solis's arguments on this point rested almost entirely on his insistence common issues predominated and any individual issues related solely to damages, when the disparities in International Marine's practices and procedures unquestionably related to liability as well. Not only did Solis not demonstrate how the court could efficiently manage proof of the individual liability issues, but he also faults the court for not proposing and considering solutions to the superiority concerns on its own despite the absence of any authority shifting the burden of proving superiority from him to the court. Accordingly, he has not established the court abused its discretion in denying class certification because class treatment was not a superior method of handling the class claims.
IV
DISPOSITION
The order is affirmed. International Marine is awarded its appeal costs against Solis. Ameri-Force is to bear its own appeal costs.
McCONNELL, P. J. WE CONCUR: HUFFMAN, J. O'ROURKE, J.