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[103 Fed.R.Serv.3d 568] D. Alan Harris, Priya Mohan, Harris and Ruble, Glendale, CA, for Plaintiff.
Cheryl Johnson-Hartwell, Mitchell A. Wrosch, Paloma P. Peracchio, Susan E. Coleman, Burke Williams and Sorensen LLP, Los Angeles, CA, for Defendant.
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR CERTIFICATION OF THE WAGE STATEMENT CLASS [81]
HONORABLE ANDRÉ BIROTTE JR., UNITED STATES DISTRICT COURT JUDGE
Before the Court is Plaintiff Lerna Mays’s ("Plaintiff") Motion For Certification of a Wage Statement Class. (Dkt. No. 81 (hereinafter, "Mot.").) Defendant Wal-Mart Stores, Inc. ("Walmart") filed an opposition, and Plaintiff filed a reply. (Dkt. No. 86 (hereinafter, "Opp’n"); Dkt. No. 89 (hereinafter, "Reply").) The Court heard argument on the Motion on February 8, 2019, and took the matter under submission. Having carefully reviewed the parties’ submissions and considered the arguments presented during oral argument, and for the reasons indicated below, the Court GRANTS in part and DENIES in part the Motion.
[103 Fed.R.Serv.3d 569] I. BACKGROUND
A. Factual Background
The facts underlying this case are familiar to the parties and the Court. The Court has already described them in detail in its August 22, 2018 Order Denying Class Certification. (Dkt. No. 61 (hereinafter, "Class Cert. Order").) Accordingly, only a brief summary is provided in this section.
Plaintiff is a former nonexempt employee of Wal-Mart Stores, Inc. in California from approximately August 2007 to February 10, 2017. (Mot. at 4; Dkt. No. 81-1, Declaration of Alan Harris ("Harris Decl.") ¶ 5, Ex. 1 (hereinafter, "Mays Decl.") ¶¶ 4, 7-8.) Plaintiff brings this suit against Walmart on behalf of a putative class of former and current Walmart employees for alleged violations of the California Labor Code.
Walmart’s evidentiary objections to statements in the Harris Declaration and Priya Mohan Declaration are moot because the Court does not consider the statements at issue in ruling on this Motion. (Dkt. No. 87 at 20-22.)
Plaintiff identifies two "class-wide" policies and practices of Walmart that allegedly violate California law: (1) Walmart’s alleged failure "to provide the legal name of the employer on any of its wage statements" and (2) Walmart’s alleged failure "to provide the inclusive dates of the pay period" on wage statements issued to terminated employees. (Mot. at 1.) Plaintiff also claims terminated employees did not receive paper copies of any wage statements issued after their Final Statement of Pay in violation of Labor Code section 226(a); however, it is unclear if this is an additional theory under her Final Wage Statement Class. (See Mot. at 4-5.)
1. Wage Statement Claim
Mays asks the Court, for the second time, to certify a class of Walmart employees who received a wage statement between December 16, 2016 to present. Mays contends Walmart’s wage statements violate California Labor Code section 226(a)(8) because the statements identify "Wal-Mart Associates, Inc." as the employer instead of "Wal-Mart Stores, Inc."
In 2018, Walmart allegedly changed its legal name from "Wal-Mart Stores, Inc." to "Wal-Mart, Inc." (Mot. at 5.) Plaintiff contends the "new" legal name of the company, "Wal-Mart, Inc.," does not appear on the wage statements and that only "Wal-Mart Associates, Inc." appears on the wage statements. (Id. )
Walmart counters by arguing that "Wal-Mart Associates, Inc." is the actual employer of Walmart’s employees. (Opp’n at 1.) Walmart points out that its corporate representative "testified to this at deposition" and "Plaintiff similarly testified that she worked for ‘Wal-Mart Associates, Inc.’ " (Id. ) Walmart argues that, "[b]ased on this evidentiary record, Plaintiff cannot show that she was actually injured by her wage statements listing ‘Wal-Mart Associates, Inc.’ as her employer— because it was her employer, and she believed it was her employer." (Id. ) In Walmart’s view, Plaintiff "does not have standing, is not an adequate representative of the class, and is not typical of its members." (Id. ) Walmart further argues that Plaintiff "fails to provide evidence of class-wide injury" and fails to propose "a common method of proof for identifying which associates, if any, were actually injured by viewing their wage statements during their employment." (Id. )
2. Final Wage Statement Claim
Plaintiff also asks the Court, for the first time, to certify a class of former Walmart employees whose employment ended between January 10, 2018 to the present. (See Mot. at 2.) Plaintiff alleges that when Walmart terminated her employment, instead of providing Plaintiff an itemized wage statement with her last pay check, Walmart provided only a "Statement of Final Pay" that did not include the start and end dates of Plaintiff’s final pay period. (Harris Decl. ¶ 5; Mays Decl. ¶ 7.) Plaintiff alleges that, as a matter of policy and practice, Walmart’s statements of final pay from the termination date onwards does not include pay period start or end dates. Plaintiff asserts that Walmart’s policy of not listing pay period start and end dates on statements of final pay violates California Labor Code section 226(a)(6), which requires employers to furnish "semimonthly or at the time of each [103 Fed.R.Serv.3d 570] payment of wages" an "accurate itemized statement" that shows "the inclusive dates of the period for which the employee is paid." (Mot. at 7.)
Walmart points out that Plaintiff "does not have standing to be a member of this subclass, cannot adequately represent it, and ... is not typical of its members" because Plaintiff was terminated in February 2017— nearly one year before the proposed class period begins. (Opp’n at 2; see Mays Decl. ¶ 7.) Walmart also points out that Judge Lucy Koh certified an identical class in Magadia v. Wal-Mart Associates, Inc., Case No. 17-cv-00062, appointing a different class representative and different class counsel. (Opp’n at 2.) Walmart therefore argues that "[n]either Plaintiff nor her attorneys can adequately represent the interests of the Final Wage Statement Subclass because they are prohibited from communicating with its already represented class members." (Id. )
Walmart further argues that Plaintiff (1) "did not move to certify this subclass in her First Motion for Class Certification," or "obtain leave to belatedly move to certify it now" and (2) "neglected to inform Walmart she was moving to certify this brand-new subclass." (Opp’n at 3.) Thus, Walmart contends Plaintiff violated this district’s local rule requiring that parties meet and confer before filing a motion. See C.D. Cal. L.R. 7-3. Walmart also contends that Plaintiff violated a local rule requiring that plaintiffs move for class certification within ninety days of serving the summons and complaint. See C.D. Cal. L.R. 23-3.
B. Procedural History
On December 18, 2017, Plaintiff initiated this action by filing her initial complaint against Walmart. (Dkt. No. 1.) On July 8, 2018, Plaintiff moved to certify two classes of Walmart employees:
1. The Wage Statement Class: all California workers who received a wage statement between December 16, 2016 to date; and
2. The Former Employee Class: all California workers who received one or more wage payments during the period from December 18, 2014 to date, whose employment terminated on or after December 18, 2014, who received additional wages or vacation pay following the issuance of their Statement of Final Wages.
In her initial complaint, Plaintiff alleged Walmart engaged in three "class-wide policies and practices" that violate California law, including: (1) failing to provide the legal name of the employer on its wage statements; (2) failing to list net wages earned on certain wage statements issued after the Statement of Final Wages; and (3) failing to timely pay all accrued wages immediately upon separation of employment. (Dkt. No. 43 at 1-2.)
On August 22, 2018, this Court denied the motion. (See generally Class Cert. Order.) As to the Former Employee Subclass, the Court determined Plaintiff failed to establish numerosity, commonality, and predominance. (Id. at 7-13.) As to the Wage Statement Class, the Court found Plaintiff alleged no plausible concrete injury and therefore did not have standing to sue in federal court. (Id. at 19.) Accordingly, the Court dismissed Plaintiff’s second cause of action for lack of standing with leave to file an amended complaint "to cure the standing defects outlined [in the Order]." (Id. at 20-21.) The Court denied Plaintiff’s subsequent motion for reconsideration of the order denying class certification. (Dkt. Nos. 63, 74.)
On September 12, 2018, Plaintiff filed the First Amended Complaint adding a representative claim under the Labor Code’s Private Attorneys General Act ("PAGA") of 2004, Cal. Lab. Code § 2698 et seq. (See generally Dkt. No. 64 (hereinafter, "FAC").) Plaintiff also added an allegation that Walmart’s "failure to provide the accurate name of the employer on wage statements has injured Plaintiff by causing confusion as to who was her actual employer while Plaintiff was working for Defendant." (FAC ¶ 15 (emphasis added).)
On December 11, 2018, Walmart moved for judgment on the pleadings as to Plaintiff’s second cause of action for failure to provide adequate wage statements under California Labor Code section 226(a) and partial judgment [103 Fed.R.Serv.3d 571] on Plaintiff’s seventh cause of action for civil penalties under PAGA on the ground that Plaintiff failed to exhaust administrative remedies. (Dkt. No. 82.) On January 29, 2018, the Court denied Walmart’s Motion for Judgment on the Pleadings. (Dkt. No. 90.)
Plaintiff now asks the Court to certify a Wage Statement Class and Final Wage Statement Subclass, defined as follows:
1. The Wage Statement Class: All Wal-Mart Stores, Inc. California workers who received one or more wage payments during the period from Friday, December 16, 2016 to the date on which this Motion may be decided.
2. Final Wage Statement Subclass: All former non-exempt employees who worked for Wal-Mart Stores, Inc. in California and whose employment terminated (whether voluntarily or involuntarily) at any time from January 10, 2018 to the date of which this Motion may be decided.
Both parties filed requests for judicial notice in support of their respective positions.
The Court GRANTS Walmart’s Request for Judicial Notice. (Dkt. No. 87-2 ¶ 1.) The Court takes notice that the brief was filed in Magadia v. Wal-Mart Associates, Inc., No. 5:17-cv-00062-LHK. The Court also GRANTS Plaintiff’s Request for Judicial Notice, and likewise takes notice of Magadia filings identified in Plaintiff’s request, as well as the information listed on the California and Oregon Secretary of State’s websites. As to the online article, the Court will take notice of the fact that it was published online on a specific date. (Dkt. No. 81-3; Harris Decl. ¶¶ 9-12, Exs. 1-5.) Although the Court may judicially notice the documents filed in other proceedings, it may not notice the documents for the truth of any facts or arguments recited therein. See Lee v. City of Los Angeles, 250 F.3d 668, 690 (9th Cir. 2001). The Secretary of State documents have either been issued by or filed with a public agency and are therefore matters of public record. Fed.R.Evid. 201; Simon v. Healthways Inc., No. CV 14-08022 BRO JCX, 2015 WL 1568230, at *3 (C.D. Cal. Apr. 7, 2015). Accordingly, the existence and authenticity of these public records are beyond dispute and therefore properly the subject of judicial notice, but the Court does not take judicial notice of the facts alleged therein. The Court therefore GRANTS Plaintiff’s Request for Judicial Notice.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 23 ("Rule 23") controls class certification. Under Rule 23(a) a party may represent a class only if: "(1) the class is so numerous that joinder of all members is impracticable, (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 representative parties will fairly and adequately protect the interests of the class." Fed.R.Civ.P. 23(a). A plaintiff must establish all four prerequisites— numerosity, commonality, typicality, and adequacy of representation— to obtain class certification.
Further, a plaintiff must also demonstrate that the action is one of the three "types" of class actions identified in Rule 23(b). Plaintiff seeks certification under Rule 23(b)(3). Rule 23(b)(3) permits certification if the action is one in which "the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." Fed.R.Civ.P. 23(b)(3).
The U.S. Supreme Court in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 351, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011) held that class certification is permitted only if the trial court is satisfied, following a "rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied." Although class certification analysis may often bleed into a court’s analysis of a plaintiff’s claims, id., "[m]erits questions may be considered to the extent— but only to the extent— that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied." Amgen, Inc. v. Conn. Retirement Plans & Tr. Funds, 568 U.S. 455, 465-66, 133 S.Ct. 1184, 185 L.Ed.2d 308 (2013).
III. DISCUSSION
A. The Court Grants Plaintiff’s Motion to Certify the Wage Statement Class.
Plaintiff’s "Wage Statement Class" is based on Walmart’s alleged violation of Labor Code section 226(a)(8), which requires [103 Fed.R.Serv.3d 572] employers to provide accurate, itemized wage statements to employees that list "the name and address of the legal entity that is the employer. " (FAC ¶ 15.) Specifically, Plaintiff contends Walmart violated section 226(a)(8) because Walmart’s wage statements listed "Wal-Mart Associates, Inc.,"— Walmart’s payroll company— instead of "Wal-Mart Stores, Inc." or "Wal-Mart, Inc."— Plaintiff’s employer. (See id. )
Walmart challenges class certification, arguing that Plaintiff failed to meet her commonality, typicality, and adequate representation burdens under Rule 23(a) , and fails to meet her burden under Rule 23(b)(3). (Opp’n at 4-16.) Further, Walmart argues that Plaintiff lacks standing. As threshold matters, the Court will first address whether (1) Plaintiff has standing to pursue claims on behalf of putative class members in Wage Statement Class and (2) it is administratively feasible to ascertain whether individuals are members of the proposed Wage Statement Class. Then the Court will address commonality, typicality, adequacy, and predominance.
Walmart does not dispute that the proposed class would meet the numerosity prerequisite under Rule 23(a)(1). (See generally Opp’n.)
1. Statutory Standing
a. Violation of Labor Code Section 228(a)
Walmart asserts Plaintiff does not have standing to represent the Wage Statement Class because "Wal-Mart Associates, Inc." was Plaintiff’s employer and Plaintiff believed "Wal-Mart Associates, Inc." was her employer. (Opp’n at 4-6.)
California Labor Code section 226(e) provides that an employee who suffers an injury "as a result of a knowing and intentional failure by an employer to comply with subdivision (a) is entitled to recover" damages. To recover under section 226(e), a plaintiff must show: (1) a violation of section 226(a) that (2) was knowing and intentional, and (3) an injury suffered as a result of the violation. See Suarez v. Bank of Am. Corp., No. 18-CV-01202-MEJ, 2018 WL 3659302, at *11 (N.D. Cal. Aug. 2, 2018); Novoa v. Charter Comm’ns, Inc., 100 F.Supp.3d 1013, 1025 (N.D. Cal. 2015).
Walmart does not dispute that Plaintiff satisfies the knowing and intentional requirement. (See Opp’n at 4-6.)
The Court thoroughly discussed whether Plaintiff alleged a violation of section 226(a)(8) in the Court’s January 29, 2019 Order Denying Walmart’s Motion for Judgment on the Pleadings. (Dkt. No. 90.) The Court incorporates by reference the Court’s analysis and analyzes whether Plaintiff has now put forth evidence to support those allegations for class certification. The Court finds she has.
The Court notes that the parties have presented conflicting evidence as to which entity employed Plaintiff and as to whom Plaintiff believed to be her employer. An obvious dispute exists as to which entity was Plaintiff’s employer, the determination of which goes to the merits of her claim. The Court has thoroughly reviewed the evidence, including the deposition transcripts, and finds Plaintiff has put forth sufficient evidence to show she personally experienced the same alleged statutory violation as the class.
Here, Plaintiff attached a statement of earnings and deductions to her complaint, which has a "Walmart" logo at the top of the page and includes the following information:
Wal-Mart Statement of Earnings and Deductions
Wal-Mart Associates, Inc.
792 S.W. 8th Street 3522
Bentonville, AR 72716
(FAC, Ex. 8.)
Plaintiff resubmits the declaration she filed in support of her previous motion for class certification in which she declared: "I was employed by Wal-Mart Stores, Inc. from 2007 when I submitted a formal application for employment by Wal-Mart Stores, Inc." (Mays Decl. ¶ 4.) Plaintiff has also attached various employment documents that suggest Wal-Mart Stores, Inc. was her employer. [103 Fed.R.Serv.3d 573] (FAC, Ex. 3 at WM0006.) Walmart, on the other hand, relies on deposition testimony of its corporate representative, Diana McChristian, to show "Wal-Mart Associates, Inc." employed Plaintiff. Direct quotes of McChristian’s deposition follow below:
Plaintiff attached to the complaint a document titled "Notice to Employee" to "communicate employment-related information," which lists "Wal-Mart Stores, Inc." as the name of her employer and 702 S.W. 8th Street, Bentonville, AR 72716 as the physical and mailing address. (FAC, Ex. 3 at WM0006.) The notice lists other names that the employer does business as: "Wal-Mart Supercenter, Wal-Mart Neighborhood Market, Wal-Mart, Wal-Mart Vacations, Sam’s Club, [and] Wal-Mart Distribution Center." (Id. ) Finally, the notice states "[t]he worksite employer does not use any other business entity to hire employees or administer wages or benefits." (Id. ) The notice contains no information about the alleged payroll entity "Wal-Mart Associates, Inc."
Q: ... [A]re you familiar with the entity Wal-Mart Associates, Inc.?
A: I am.
Q: And is that a business for payroll processing for the Associates of Wal-Mart Stores?
A: Our associates are paid by Wal-Mart, Associates, Inc. and all reporting for wage and tax purposes is done by Wal-Mart Associates, Inc. They’re, in essence, the employer.
(Dkt. No. 86-2, Declaration of Mitchell Wrosch ("Wrosch Decl.") ¶ 3, Ex. B (hereinafter, "McChristian Depo.") at 60:23-61:5.) Walmart also points to an instance during Plaintiff’s deposition where Plaintiff testified that Wal-Mart Associates, Inc. was her employer:
Q: Do you know what Wal-Mart Associates, Incorporated is?
A: To my understanding, I just know I worked for that company.
(Wrosch Decl. ¶ 2, Ex. A (hereinafter, "Mays Depo.") at 46:11-15.)
McChristian’s deposition testimony that Wal-Mart Associates, Inc. is "in essence" Plaintiff’s employer and Plaintiff’s deposition testimony that she "worked for" Wal-Mart Associates, Inc. are isolated and equivocal. The Court is not persuaded that these ambiguous statements vitiate all of the evidence suggesting Wal-Mart Stores, Inc. was Plaintiff’s employer and that she believed the same. For this reason, the Court declines to disregard Plaintiff’s declaration under the sham affidavit rule. See Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir. 1991) ("The general rule in the Ninth Circuit is that a party cannot create an issue of fact by an affidavit contradicting his prior deposition testimony.").
The Court overrules Walmart’s objections to the Mays Declaration. (Dkt. No. 87 at 16-20.) Even if the declaration itself is not admissible at trial, information from her declaration could be brought out in admissible form at trial. To the extent the Mays Declaration contains legal conclusions, Walmart’s objections are moot because the Court does not consider those statements in ruling on this Motion. See Sali v. Corona Reg’l Med. Ctr., 909 F.3d 996, 1004-05 (9th Cir. 2018) (holding that at the class certification stage "[t]he court’s consideration should not be limited to only admissible evidence.").
Accordingly, the Court finds Plaintiff has presented sufficient evidence, at least at this stage, that suggests she was subject to and suffered injury from the same alleged violation of section 226(a)(8) as other class members.
b. Resulting Injury
A plaintiff suffers an injury for purposes of Labor Code section 226(e) if: (1) the employer fails to provide a wage statement altogether; or (2) the employer omits an item required by section 226(a) and the employee "cannot promptly and easily determine from the wage statement alone" one of four enumerated categories of information— one of which is "the name and address of the employer." See Cal. Lab. Code § 226(e)(1), (2); Derum v. Saks & Co., 95 F.Supp.3d 1221, 1229 (S.D. Cal. 2015). "Courts interpreting California law have recognized that ‘the possibility of not being paid overtime, employee confusion over whether they received all wages owed them, difficulty and expense in reconstructing pay records, and forcing employees to make mathematical computations to analyze whether the wages paid in fact compensated them for all hours worked’ can constitute an injury under section 226(e)." Alonzo v. Maximus, Inc., 832 F.Supp.2d 1122, 1135 (C.D. Cal. 2011) (quoting Ortega v. J.B. Hunt Transp., Inc., 258 F.R.D. 361, 374 (C.D. Cal. 2009) ); see [103 Fed.R.Serv.3d 574] Perez v. Performance Food Group, Inc., No. LA CV 17-00357 JAK (SKx), 2017 WL 6940526, at *11 (C.D. Cal. Dec. 15, 2017).
Here, Plaintiff alleges that Walmart’s "failure to provide the accurate name of the employer on wage statements has injured Plaintiff by causing confusion as to who was her actual employer while Plaintiff was working for Defendant." (FAC ¶ 15.) Plaintiff further alleges:
During the course of Plaintiff’s employment with [Walmart], wage statements provided to Plaintiff previously listed "Wal-Mart Stores, Inc." on the statements. Subsequently, [Walmart] made the decision to list "Wal-Mart Associates, Inc." on the statements. Obviously, this change caused confusion to Plaintiff and Aggrieved employees as to which was the entity that actually employed them, especially considering that other documents provided to Plaintiff by Defendant clearly indicated that Plaintiff was in fact employed by Wal-Mart Stores, Inc.
(Id. ) Walmart’s position is that Plaintiff must present "evidence " to demonstrate injury under Rule 226(e)— presumably by declaration or deposition in which she states she was "confused" by the name on her wage statements. (Opp’n 4-6.) However, for purposes of section 226(e), a plaintiff is "injured" "if the accuracy of any of the items enumerated in § 226(a) [including the name of the employer] cannot be ascertained from the four corners of the wage statement." Raines v. Coastal P. Food Distribs., Inc., 23 Cal.App.5th 667, 676, 234 Cal.Rptr.3d 1 (Ct.App. 2018); see Ovieda v. Sodexo Operations, LLC, No. CV 12-1750-GHK (SSx), 2013 WL 12122413, at *3 (C.D. Cal. Oct. 3, 2013). The standard to establish "injury" under section 226(e) is therefore an objective standard— whether " a reasonable person would be able to readily ascertain the information without reference to other documents or information,"— and not a subjective standard— "not whether the plaintiff or each putative class member was able to readily ascertain the information without reference to other documents or information." Stafford v. Brink’s, Inc., No. CV- 14-01352 MWF (PLAx), 2015 WL 12699458, at *7 (C.D. Cal. Dec. 1, 2015) (quoting Cal. Lab. Code § 226(e)(2)(C) ); see also Brewer v. Gen. Nutrition Corp., No. 11-CV-3587 YGR, 2014 WL 5877695, at *5 (N.D. Cal. Nov. 12, 2014) ("[P]roof of injury is based upon what a ‘reasonable person’ would understand from the face of those wage statements.").
The Court has reviewed all of the wage statements attached to Plaintiff’s complaint and concludes that there is a genuine dispute regarding whether a reasonable person could "promptly and easily determine from the wage statement alone" the name of her employer. Admittedly, the Court cannot discern any reason why Plaintiff felt the need to look at her wage statements and scrutinize the employer name so closely. But that is not a prerequisite for a finding of injury under the statute because "[w]hether an employee suffered injury is based solely on the information provided on the wage statement." Garnett v. ADT LLC, 139 F.Supp.3d 1121, 1131-32 (E.D. Cal. 2015).
Accordingly, the Court is satisfied that Plaintiff has presented sufficient evidence, at least at this stage, that she suffered injury within the meaning of section 226(e).
2. Article III Standing
a. Three Standing Requirements
Standing is a threshold issue the Court must resolve before class certification. Lierboe v. State Farm Mut. Auto. Ins. Co., 350 F.3d 1018, 1022 (9th Cir. 2003) ("[S]tanding is the threshold issue in any suit. If the individual plaintiff lacks standing, the court need never reach the class action issue."); see also Melendres v. Arpaio, 784 F.3d 1254, 1262 (9th Cir. 2015) ("[O]nce the named plaintiff demonstrates her individual standing to bring a claim, the standing inquiry is concluded, and the court proceeds to consider whether the Rule 23(a) prerequisites for class certification have been met.") (citation omitted).
As the party invoking federal jurisdiction, Plaintiff bears the burden of properly alleging standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Where, as here, a case has reached the certification stage, the named plaintiff must show standing "through [103 Fed.R.Serv.3d 575] evidentiary proof." Comcast Corp. v. Behrend, 569 U.S. 27, 133 S.Ct. 1426, 1432, 185 L.Ed.2d 515 (2013); In re First Am. Corp. ERISA Litig., Nos. SACV 07-013577-JVS (RNBx), CV 07-07602, CV 07-07585, SACV 08-0010, 2009 WL 928294, at *2 (C.D. Cal. Apr. 2, 2009) ("[A]t the class certification stage, ... unlike on a motion to dismiss, the would-be class representative must show standing, rather than merely allege it."). "In a class action, standing is satisfied if at least one named plaintiff meets the requirements." Bates v. United Parcel Serv., Inc., 511 F.3d 974, 985 (9th Cir. 2007) (citing Armstrong v. Davis, 275 F.3d 849, 860 (9th Cir. 2001) ). In addition to satisfying constitutional standing requirements, such a plaintiff "bears the burden of showing that he has standing for each type of relief sought." Summers v. Earth Island Inst., 555 U.S. 488, 493, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009).
To establish Article III standing, a plaintiff must (1) have suffered an "injury in fact" that was (2) caused by the defendant’s challenged actions and would (3) be "redressed by a favorable court decision." Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130. Walmart takes issue with the injury in fact requirement.
b. Standard to Demonstrate Injury In Fact
To satisfy the first requirement, a plaintiff must show that she "has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical," Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 180, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). The injury "must actually exist"— that is, it must be "real," not "abstract" or purely "procedural"— but it need not be tangible. Spokeo, Inc. v. Robins, __ U.S. __, 136 S.Ct. 1540, 1548-49, 194 L.Ed.2d 635 (2016).
An intangible injury may constitute injury in fact. Id. In Spokeo, the Supreme Court noted that even the risk of real harm might satisfy concreteness. Id. In evaluating whether an intangible injury satisfies the "concreteness" requirement, the Supreme Court reiterated two important considerations: (1) history, which may reveal "whether an alleged intangible harm has a close relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit in English or American courts"; and, (2) the judgment of Congress, which "has the power to define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before." Id. (quoting Lujan, 504 U.S. at 580, 112 S.Ct. 2130 (Kennedy, J., concurring in part and concurring in judgment) ).
With respect to this congressionally-defined, or statutory, standing, the Spokeo Court explained: "Article III standing requires a concrete injury even in the context of a statutory violation." Id. Thus, a plaintiff "could not, for example, allege a bare procedural violation, divorced from any concrete harm, and satisfy the injury-in-fact requirement of Article III." Id. (citing Summers v. Earth Island Inst., 555 U.S. 488, 496, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009) ("[D]eprivation of a procedural right without some concrete interest that is affected by the deprivation ... is insufficient to create Article III standing.") ). Regarding the Fair Credit Reporting Act— the statute that was at issue in Spokeo — the Supreme Court noted that "not all inaccuracies cause harm or present any material risk of harm." Id. at 1550. By way of example, the Supreme Court suggested that it would be "difficult to imagine how the dissemination of an incorrect zip code, without more, could work any concrete harm." Id.
The Court also observed that in cases in which "harms may be difficult to prove or measure[,]" "the violation of a procedural right granted by statute can be sufficient ... [and] a plaintiff in such a case need not allege any additional harm beyond the one Congress has identified." Id. at 1549. A plaintiff may therefore suffer "a concrete informational injury where [she or] he is denied access to information required to be disclosed by statute, and [she or] he ‘suffers, by being denied access to that information, the type of harm Congress sought to prevent by requiring disclosure.’ " Dreher v. Experian Info. Sols., Inc., 856 F.3d 337, 345 (4th Cir. 2017) (quoting Friends of Animals v. Jewell, 828 F.3d 989, 992 (D.C. Cir. 2016) ). In such a situation, an informational injury [103 Fed.R.Serv.3d 576] can become constitutionally cognizable when "a person lack[s] access to information to which [she or] he is legally entitled and ... the denial of that information creates a ‘real’ harm with an adverse effect." Id. at 345 (citing Spokeo, 136 S.Ct. at 1548).
On remand, the Ninth Circuit concluded that courts must "ask: (1) whether the statutory provisions at issue were established to protect [the plaintiff’s] concrete interests (as opposed to purely procedural rights), and if so, (2) whether the specific procedural violations alleged in [the] case actually harm, or present a material risk of harm to, such interests." Robins v. Spokeo, Inc. (Spokeo II), 867 F.3d 1108, 1113 (9th Cir. 2017). In making the first inquiry, the court must ask "whether Congress enacted the statute at issue to protect a concrete interest that is akin to a historical, common law interest." Dutta v. State Farm Mut. Auto. Ins. Co., 895 F.3d 1166, 1174 (9th Cir. 2018) The second inquiry "requires some examination of the nature of the specific alleged [violations] to ensure that they raise a real risk of harm to the concrete interests [the statute] protects." Spokeo II, 867 F.3d at 1116. In other words, the Court must consider whether, in the case before us, the violation caused a real harm or a material risk of harm. Using this approach, Plaintiff’s claim as pleaded— i.e., that Walmart violated her statutory right to a wage statement identifying the name of her legal employer— must be evaluated to determine whether it presents a concrete harm.
The Court notes that Plaintiff’s deposition testimony demonstrates that she was confused about which entity employed her because she indicated that "Wal-Mart Associates, Inc." was her employer. (See Mays Depo. at 46:11-15 ("Q: Do you know what Wal-Mart Associates, Incorporated is? A: To my understanding, I just know I worked for that company.").) Plaintiff’s confusion further supports the Court’s finding that Plaintiff has Article III standing.
3. Plaintiff Establishes an Injury In Fact.
While Spokeo I refers to Congress, neither side disputes that state legislatures are equally well-positioned to determine when an intangible harm is a concrete injury. Even though "this conclusion pre-dates Spokeo I, nothing there undercuts it. To be sure, state law cannot create Article III standing where none exists under our federal precedents." Patel v. Facebook Inc., 290 F.Supp.3d 948, 952-53 (N.D. Cal. 2018). However, "there is no good reason why the judgment of a state legislature should be treated as less important than that of Congress in deciding when the violation of a statutory grant in itself amounts to a real and concrete injury." Id.
Here, the California Legislature enacted Labor Code section 226 to require that employer’s list their name and address on wage statements for transparency. Indeed, at least one district court has found that various legislative materials show that "the Legislature amended the bill to require a name and address of the employer because it would be ‘useful when grievances arise out of wages, for unemployment insurance purposes and for income tax and pension purposes.’ " Mejia v. Farmland Mut. Ins. Co., No. 2:17-CV-00570 TLN (KJNx), 2018 WL 3198006, at *6 (E.D. Cal. June 26, 2018) (analyzing Bill Memorandum of Labor Code section 226 and letter from Assemblyman) (quoting Bill Memorandum to Assembly Bill 1750, Jun. 24, 1963); see also Soto v. Motel 6 Operating, L.P., 4 Cal.App.5th 385, 390, 208 Cal.Rptr.3d 618 (2016) ("Section 226(a) is intended to require employers to provide an adequate wage statement, itemizing the information to be included, ‘to assist the employee in determining whether he or she has been compensated properly.’ ").
The district court in Garnett, 139 F.Supp.3d at 1131-32, thoroughly analyzed the statute’s more recent legislative history concerning the definition of "suffering injury," which is worth quoting in full:
This statutory language was added to section 226 by Senate Bill 1255 in 2013 in order to "define what constitutes ‘suffering injury’ " and "provide clarity regarding the information that must be included in a workers wage statement." (Pl.’s Req. for J. Notice Ex. 1, Senate Comm. on Labor & Indus. Relations Hearing Report on SB 1255, Apr. 11, 2012 (Docket No. 26-4).) The amendment was a reaction to the [103 Fed.R.Serv.3d 577] "very restrictive and erroneous interpretation of what constitutes ‘suffering injury’ " that had been adopted by several state and federal courts. (Id. ) "[T]hese courts found that there was no injury even though there was key payroll information either missing from, or reported incorrectly on, the workers’ wage statements" because the plaintiffs failed to demonstrate actual injury, such as loss of wages. (Id. ) The California legislators explained that "[s]uch an interpretation flouts the entire purpose of this provision, which is to ensure compliance so that workers can easily and adequately understand the breakdown and source of their pay." (Id. at Ex. 2, Senate Judiciary Committee Report on SB 1255, Apr. 30, 2012.)
The amendment made clear that the "lack of each item of required information in and of itself could harm the employee." (Id. at Ex. 2, Senate Judiciary Committee Report on SB 1255, Apr. 30, 2012.) The California Rural Legal Assistance Foundation, the co-sponsor of the bill, stated that "employees benefit from this bill’s affirmation that Labor Code section 226(a) means what it says: Employees must get an itemized pay stub that contains accurate and complete information about all nine of the required pay-related information items, and the analysis of whether the employee suffered injury is to be based solely on what information the employer provided on the pay stub." (Id. at Ex. 4, Assembly Committee on Labor and Employment Hearing Report on SB 1255, May 15, 2012 (emphasis added).)
Garnett, 139 F.Supp.3d at 1132 (citations omitted).
The plain language of section 226(e) and the legislative history of section 226 confirm that section 226(a) and (e) were intended to provide Plaintiff with sufficient information to quickly identify who employed her during and after her employment was terminated. The Court finds that Plaintiff’s alleged confusion and inability to ascertain whether "Wal-Mart Associates, Inc." or "Wal-Mart Stores, Inc." employed her based solely on what information Walmart provided on her pay stub "actually harms or present[s] a material risk of harm" to that interest.
Thus, the Court finds Plaintiff satisfies the injury-in-fact requirement at this stage.
2. The Wage Statement Class Is Ascertainable.
A class certification requirement not included in Rule 23 is ascertainability, a prudential standard that requires courts to find whether it is administratively feasible to ascertain whether individuals are members of proposed classes. O’Connor v. Boeing N. Am., Inc., 184 F.R.D. 311, 319 (C.D. Cal. 1998); see also Pryor v. Aerotek Scientific, LLC, 278 F.R.D. 516, 523 (C.D. Cal. 2011) ("A class is sufficiently defined and ascertainable if it is administratively feasible for the court to determine whether a particular individual is a member.") (citation omitted). Courts use objective criteria to determine ascertainability; subjective material such as a person’s state of mind is not permitted. Schwartz v. Upper Deck Co., 183 F.R.D. 672, 677 (S.D. Cal. 1999); see also Bussey v. Macon Cnty. Greyhound Park, Inc., 562 Fed.Appx. 782, 787 (11th Cir. 2014) ("The analysis of the objective criteria also should be administratively feasible. ‘Administrative feasibility’ means ‘that identifying class members is a manageable process that does not require much, if any, individual inquiry.’ ") (citation omitted); In re Methyl Tertiary Butyl Ether ("MTBE") Prods. Liab. Litig., 209 F.R.D. 323, 337 (S.D.N.Y. 2002) ("An identifiable class exists if its members can be ascertained by reference to objective criteria. Where any criterion is subjective, e.g. state of mind, the class is not ascertainable.") (citation omitted). Courts may frame ascertainability complications as problems with Rule 23(a) commonality, typicality, or adequacy of representation. Dzieciolowski v. DMAX Ltd., No. CV 15-2443-AG (ASX), 2016 WL 6237889, at *4 (C.D. Cal. Apr. 27, 2016); see also Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 158 n.13, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982) ("The commonality and typicality requirements of Rule 23(a) tend to merge.").
Plaintiff’s position is that members of the Wage Statement Class can easily be ascertained by Walmart’s payroll records, which provide the name of employees who received [103 Fed.R.Serv.3d 578] wage statements during the relevant period. (Mot. at 13-14.) Walmart counters that all class members must have Article III standing, which would require the Court to determine (1) "whether each associate viewed his or her wage statements," and "whether each associate viewed the section of the wage statement that lists the name of the employer"; (2) "whether the associate was injured by viewing that specific section of the wage statements"; (3) "whether the injury suffices to support Article III standing"; and (4) "the date(s) when the associate viewed his or her wage statement and experienced sufficient injury." (Opp’n at 10.)
The Court is unconvinced by Walmart’s parade of horribles. Walmart’s argument that the class cannot be certified because it would include members who lack standing rests on the Ninth Circuit’s statement in Mazza v. American Honda Motor Co. that "[n]o class may be certified that contains members lacking Article III standing." 666 F.3d 581, 594 (9th Cir. 2012). The Ninth Circuit has since clarified that Mazza’s "statement taken in context signifies only that it must be possible that class members have suffered injury, not that they did suffer injury, or that they must prove such injury at the certification phase." Davidson v. Apple, Inc., No. 16-CV-04942-LHK, 2018 WL 2325426, at *9 (N.D. Cal. May 8, 2018), appeal dismissed sub nom. Siegal v. Apple Inc., No. 18-80060, 2018 WL 6131860 (9th Cir. Aug. 24, 2018) (citing Bates v. United Parcel Serv., Inc., 511 F.3d 974, 985 (9th Cir. 2007) and Stearns v. Ticketmaster Corp., 655 F.3d 1013 (9th Cir. 2011) ("[O]ur law keys on the representative party, not all of the class members, and has done so for many years.") ). As explained above, "it is sufficient for jurisdictional purposes that ‘at least one named plaintiff must satisfy Article III standing.’ " Davidson, 2018 WL 2325426, at *9. The Court has already concluded that Plaintiff has standing to represent the Wage Statement Class. Thus, Walmart’s challenge fails.
In its August 22, 2018 Order Denying Class Certification, the Court concluded that Plaintiff had defined the Wage Statement Class on objective criteria, specifically that each class member was employed by Walmart in California and received one or more wage statements during the class period. (Class Cert. Order at 6.) The Court also noted that it is administratively feasible for the Court to determine whether a particular individual is a member of the Wage Statement Class from evidence "such as wage statements, employment contracts, and other records." (Id. ) The Court sees no reason to depart from its previous conclusion that the Wage Statement Class is ascertainable.
The Court now turns to the heart of this case— whether Plaintiff’s wage statement claim satisfies the requirements of Rule 23(a) and Rule 23(b).
3. Plaintiff’s Proposed Class Satisfies the Prerequisites of Rule 23(a) .
To certify a class action under Rule 23(a), one or more proposed class members may sue or be sued as representative parties on behalf of all proposed class members only if (1) the proposed class is so numerous that joinder of all members proves impracticable (numerosity), (2) the proposed class presents questions of law or fact common to the class (commonality), (3) representative parties’ claims or defenses are typical of class claims or defenses (typicality), and (4) representative parties fairly and adequately protect class interests (adequacy). As stated, Plaintiff must establish all four of the prerequisite elements of Rule 23(a).
Walmart does not challenge numerosity, and the Court finds that element satisfied. (See Class Cert. Order at 14 n.3 ("As to numerosity, Defendant employed thousands of individuals during the relevant time period, all of whom received wage statements listing "Wal-Mart Associates, Inc.").) The Court now turns to commonality, typicality, and adequacy.
a. Commonality
"[C]ommonality requires that the class members’ claims ‘depend upon a common contention’ such that ‘determination of its truth or falsity will resolve an issue that is central to the validity of each [claim] in one stroke.’ " Mazza, 666 F.3d at 588. "The plaintiff must demonstrate the capacity of classwide [103 Fed.R.Serv.3d 579] proceedings to generate common answers to common questions of law or fact that are apt to drive the resolution of the litigation." Id. (internal quotation marks omitted). In other words, the plaintiff must identify a common question with a common answer that can be proved with common evidence.
Walmart correctly notes that what matters in class certification "is not the raising of common ‘questions’— even in droves— but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation." Dukes, 564 U.S. at 350, 131 S.Ct. 2541; see Opp’n at 11. However, the resolution of Plaintiff’s wage statement claim turns on a question of law common to the corresponding class. For the Wage Statement Class, every class member’s claim depends in part on whether Walmart’s policy of listing "Wal-Mart Associates, Inc." instead of "Wal-Mart Stores, Inc." or "Wal-Mart, Inc." on wage statements violates Labor Code section 226(a)(8). The injury of the entire class rises and falls with that question. Because "one or more [of these] questions yield common answers which can drive the litigation, commonality is satisfied." In re Myford Touch I Consumer Litig., No. 13-cv-03072-EMC , 2016 WL 7734558, at *9 (N.D. Cal. Sept. 14, 2016) (citing Dukes, 564 U.S. at 350, 131 S.Ct. 2541).
Accordingly, the Court finds the commonality requirement is met.
b. Plaintiff’s Claims Are Typical of the Proposed Class.
To certify a proposed class under Rule 23(a)(3), the plaintiff must show that a named party’s claims are typical of the proposed class. The typicality test asks "whether other members have the same or similar injury, whether the action is based on conduct which is not unique to the named plaintiffs, and whether other class members have been injured by the same course of conduct." Ellis v. Costco Wholesale Corp., 657 F.3d 970, 984 (9th Cir. 2011) (quoting Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992) ). The named plaintiff’s claims need not be identical to those of every other class member or stem from identical fact narratives. Id. at 985 n.9 (quoting Hanon, 976 F.2d at 508). "We do not insist that the named plaintiffs’ injuries be identical with those of the other class members, only that the unnamed class members have injuries similar to those of the named plaintiffs and that the injuries result from the same, injurious course of conduct." Parsons v. Ryan, 754 F.3d 657, 685 (9th Cir. 2014) (quoting Armstrong v. Davis, 275 F.3d 849, 868-69 (9th Cir. 2001) ). A named plaintiff may fail to satisfy Rule 23(a)(3) if their "unique background and factual situation" imposes atypical defense preparations on the named plaintiff when compared to other class members. Ellis, 657 F.3d at 984.
Plaintiff asserts that her claims are typical of those within the proposed class, as all worked at Walmart and received wage statements that failed to specify the name and address of the employer during the same period. (Mot. at 18.) Walmart responds with an extensive rebuttal of Plaintiff’s typicality claims and argues that (1) Plaintiff lacks standing because "she was not injured"; (2) Plaintiff is subject to defenses that are not typical of the proposed class because she fails "to show a violation of [Labor Code] section 226"; and (3) suffered an atypical injury because "there is no indication that other class members were similarly confused by Walmart’s wage statements." (Opp’n at 12-14.)
Given the Court’s finding that Plaintiff has standing in this case, along with the similar experiences between Plaintiff and class members regarding Walmart’s policy of not identifying the legal employer’s name on wage statements, Plaintiff’s claims are typical of the proposed Wage Statement Class as the class is currently defined. Nothing about Plaintiff’s wage statement claim or the facts supporting her claim is unique to Plaintiff. Here, the Rule 23(a)(3) prerequisite is fulfilled.
However, the Court modifies the end date of the class period for the reasons identified in Section I.A.5.
[103 Fed.R.Serv.3d 580] c. Adequacy
Rule 23(a)(4) requires that the representative "fairly and adequately protect the interests of the class." Whether the class representatives satisfy the adequacy requirement depends on "the qualifications of counsel for the representatives, an absence of antagonism, a sharing of interests between representatives and absentees, and the unlikelihood that the suit is collusive." Crawford v. Honig, 37 F.3d 485, 487 (9th Cir. 1994) (quoting Brown v. Ticor Title Ins. Co., 982 F.2d 386, 390 (9th Cir. 1992) ).
Here, the Court does not question Plaintiff’s overall character. There is no indication of any conflicts of interest among the class, and Plaintiff’s counsel are experienced in litigating wage and hour class actions. (See Harris Decl. ¶ 36.) Walmart’s only argument with respect to adequacy is that Plaintiff "is not a typical representative." (Opp’n at 14.) The Court has already considered and rejected this argument in the standing context and under the typicality requirement; the argument is no more persuasive here.
4. Plaintiff’s Proposed Wage Statement Class Satisfies the Prerequisites of Rule 23(b) .
a. Predominance
Under Rule 23(b)(3), plaintiffs must show "that the questions of law or fact common to class members predominate over any questions affecting only individual members." Fed.R.Civ.P. 23(b)(3). "The Rule 23(b)(3) predominance inquiry" is meant to "tes[t] whether proposed classes are sufficiently cohesive to warrant adjudication by representation." Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). The Ninth Circuit has held that "there is clear justification for handling the dispute on a representative rather than an individual basis" if "common questions present a significant aspect of the case and they can be resolved for all members of the class in a single adjudication." Hanlon v. Chrysler Corp., 150 F.3d 1011, 1022 (9th Cir. 1998).
In ruling on a motion for class certification based on Rule 23(b)(3), a district court must conduct a rigorous analysis to determine whether the class representatives have satisfied both the predominance and superiority requirements. See Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1186 (9th Cir. 2001), as modified on denial of reh’g, 273 F.3d 1266 (9th Cir. 2001). The predominance analysis focuses on "the legal or factual questions that qualify each class member’s case as a genuine controversy" to determine "whether proposed classes are sufficiently cohesive to warrant adjudication by representation." Amchem Prods., 521 U.S. at 623, 117 S.Ct. 2231; see also Fed.R.Civ.P. 23(b)(3) (to certify a class, the court must find that "questions of law or fact common to class members predominate over any questions affecting only individual members").
Here, Plaintiff asserts that certification is appropriate because "Plaintiff’s claims arise solely from [Walmart]’s standardized policies" and Walmart’s "liability turns exclusively on the blanket legality of those policies." (Mot. at 19.) Plaintiff contends that "once it is determined that an employee has not been provided with the required data regarding the legal name of the employer," "nothing more is needed to determine whether the worker received a compliant pay stub, and damages are readily computed." (Mot. at 21.)
Walmart argues that Plaintiff can satisfy the predominance requirement on Plaintiff’s wage statement claim only if Plaintiff demonstrates "a common, class-wide injury." (Opp’n at 15.) Walmart argues that determining Walmart’s liability on the wage statement claim will require individualized inquiries into whether class members viewed their statements and were confused by the name on the statements. In Walmart’s view, this class cannot be certified because the presence of certain non-injured employees within the class defeats predominance. Walmart contends that the class is too large and [103 Fed.R.Serv.3d 581] too broad because it might include employees who were subject to, but not injured by, Walmart’s alleged policy of misidentifying the name of the employer on wage statements. However, "[t]his merely highlights the possibility that an injurious course of conduct may sometimes fail to cause injury to certain class members." Torres v. Mercer Canyons Inc., 835 F.3d 1125, 1136 (9th Cir. 2016) (emphasis added). But "it fails to reveal a flaw that may defeat predominance, such as the existence of large numbers of class members who were never exposed to the challenged conduct to begin with." Id. (citing Mazza, 666 F.3d at 596).
Walmart accuses Plaintiff of "wrongly suggest[ing] that liability and damages can be ‘determined by the data in [Walmart]’s computers’ " because "Walmart does not maintain any data regarding which associates view their electronic wage statements" and "merely viewing the wage statement is [not] sufficient to establish liability." (Opp’n at 15 n.2.)
At oral argument, defense counsel suggested large class actions based on Labor Code section 226(a) violations cannot be certified in federal court because it is possible that some class members lack Article III standing. This argument is neither persuasive nor appropriate for resolution at the certification phase. The Court has no reason to believe that some class members lack standing or that they were not exposed to the alleged wage statement violation. See Torres, 835 F.3d at 1137-38 (noting statement in Mazza that "no class may be certified that contains members lacking Article III standing," "taken in context signifies only that it must be possible that class members have suffered injury, not that they must prove such injury at the certification phase").
The text of Labor Code section 226 also defeats Walmart’s argument because section 226(e)(2)(C) states that " ‘promptly and easily determine’ means a reasonable person would be able to readily ascertain the information without reference to other documents or information." Cal. Lab. Code § 226(e)(2)(C) (emphasis added). Thus, determining Walmart’s liability on the wage statement claim "would not require individualized inquiries into whether each particular class member could ‘promptly and easily determine’ " the name of the legal employer in any given pay period from his or her wage statements alone. Magadia v. Wal-Mart Associates, Inc., 324 F.R.D. 213, 224 (N.D.Cal. 2018). Instead, to establish an injury resulting from Walmart’s alleged violation of Labor Code section 226(a)(8), Plaintiff need only show that "a reasonable person" would not be able to "readily ascertain" from Walmart’s wage statements the legal name of the employer in a given pay period. Id. ; accord Stafford, 2015 WL 12699458 at *15 (same). Because this is an objective standard and not a subjective standard, Plaintiff can demonstrate injury for the alleged violation of section 226(a)(8) on a class-wide basis.
The Court finds that Plaintiff’s wage statement claim meets Rule 23’s predominance requirement.
b. Superiority
Rule 23(b)(3) also sets forth four non-exhaustive factors to consider in determining whether "a class action is superior to other available methods for fairly and efficiently adjudicating the controversy": "(A) the class members’ interests in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already begun by or against class members; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (D) the likely difficulties in managing a class action." Fed.R.Civ.P. 23(b) (3).
Walmart argues that because Plaintiff has not established commonality, typicality, and predominance, a class action is not the superior method for resolving this case. (Opp’n at 16-17.) Walmart also argues this case is "unmanageable" because "Walmart does not maintain any data regarding which associates actually view their electronic wage statements, and Plaintiff has not offered any common method of proof for ascertaining this information." (Opp’n at 17.) As discussed above, the objective standard applies to the question of whether there has been an injury under section 226(e). This defeats Walmart’s argument to the contrary.
Accordingly, Plaintiff has met her burden of establishing "superiority" under Rule 23(b)(3).
5. The Court Modifies the Class Period.
The proposed class definition for the Wage Statement Class includes "[a]ll Wal-Mart Stores, Inc. California workers who received one or more wage payments during the period from Friday, December 16, 2016 to the date on which this Motion may be decided." But on February 1, 2018, Walmart allegedly changed its legal name from "Wal-Mart [103 Fed.R.Serv.3d 582] Stores, Inc." to "Wal-Mart, Inc." (Mot. at 5; Harris Decl. ¶ 12; Moses Decl. ¶ 29 .) Because the legal name "Wal-Mart Stores, Inc." ceased to exist after this name change on February 1, 2018, the Court modifies the class period to end January 31, 2018— the day before Walmart changed it’s name from Wal-Mart Stores, Inc. to Wal-Mart, Inc. (Mot. at 4.)
Walmart’s evidentiary objections to the Moses Declaration are overruled for the same reasons as the objections to the Mays Declaration.
Two other reasons support the Court’s decision to modify the class period. First, Plaintiff was not an employee of "Wal-Mart, Inc." at any time because Walmart terminated her employment on February 10, 2017, which is about one year before Walmart changed its name from "Wal-Mart Stores, Inc." to "Wal-Mart, Inc." Second, Plaintiff failed to raise her Wal-Mart, Inc. argument in her prior motion to certify the wage statement class and failed to allege any facts regarding Wal-Mart, Inc. in her original complaint or First Amended Complaint. At the hearing on the Motion, Plaintiff’s counsel requested time to find a class representative who was a Wal-Mart, Inc. employee. The Court denies Plaintiff’s request. This is Plaintiff’s second and final motion for class certification. The Court is not inclined to consider a third motion for class certification to address whether the new representative meets the typicality and adequacy requirements.
B. The Court Denies Plaintiff’s Motion to Certify the Final Wage Statement Subclass.
Walmart argues Plaintiff (1) failed to meet and confer regarding the substance of her Motion in violation of Local Rule 7-3; (2) failed to file her Motion within ninety days of filing the complaint, as required by Local Rule 23-3; (3) lacks standing to be a member of the subclass because she was terminated in February 2017— nearly one year before the proposed class period begins; (4) cannot adequately represent the subclass; and (5) is not typical of its members. (Opp’n at 2-3.) The Court will address each argument in turn.
1. Plaintiff Failed to Meet and Confer Regarding the Substance of the Contemplated Motion.
At the hearing on the Motion, Plaintiff’s counsel apologized to the Court for failing to meet and confer with Walmart regarding the Final Wage Statement Subclass. Plaintiffs submitted on the Court’s tentative ruling with respect to the Final Wage Statement Subclass.
The Court reminds Plaintiff that Local Rule 7-3 requires counsel to meet and confer at least seven days prior to filing a motion in a civil matter. To satisfy Local Rule 7-3, counsel must first "contact opposing counsel to discuss thoroughly, preferably in person, the substance of the contemplated motion and any potential resolution." If the moving party does not comply with Local Rule 7-3, the Court may refuse to hear the motion. See, e.g., Singer v. Live Nation Worldwide, Inc., No. SACV 11-0427 DOC (MLGx), 2012 WL 123146, *2 (C.D. Cal. Jan. 13, 2012) (denying motion due to movant’s failure to abide by Local Rule 7-3).
Here, the parties met and conferred twice in October 2018 and twice in November 2018 about the instant motion. (Wrosch Decl. ¶¶ 4-7.) While the parties "agreed to a briefing schedule for Plaintiff’s putative Wage Statement Class," it appears "[t]here was no discussion of the Final Wage Statement Subclass." (Opp’n at 19; Wrosch Decl. ¶¶ 7-8.) Walmart contends it did not know Plaintiff intended to add this subclass until it was served with Plaintiff’s Motion. Walmart asserts Plaintiff’s failure to meet and confer "is particularly egregious here, as Plaintiff solicited Walmart’s stipulation for a briefing schedule for her Wage Statement Class while concealing the fact that she would also be moving to certify a new and previously unmentioned subclass." (Opp’n at 19.) Plaintiff does not deny Walmart’s accusations. Instead, Plaintiff argues "the Subclass is just a wholly contained subset of the overarching Wage-Statement Class for which [Walmart] takes no procedural issue." (Reply at 15.)
The Court concludes Plaintiff made no effort to "thoroughly" discuss the "substance of the contemplated motion," as required by the Local Rule 7-3. The Court finds no justification for Plaintiff’s failure to inform Walmart that she would move to certify the Final Wage Statement Subclass. Therefore, Plaintiff’s failure to comply with Local Rule 7-3 is an independent ground on which the Court DENIES Plaintiff’s Motion to Certify the [103 Fed.R.Serv.3d 583] Final Wage Statement Subclass. The Court expects the parties to fully comply with the spirit and letter of Local Rule 7-3 going forward and make every effort to avoid unnecessary litigation and resolve disputes which need not involve the Court.
Courts have summarily denied a party’s motion for failure to comply with Local Rule 7-3. See, e.g., Thomas v. Brett Sports & Entm’t, Inc., No. CV 16-00480-AB (DTBx), 2016 WL 4472995, at *2 (C.D. Cal. Aug. 23, 2016) (denying motion to strike class allegations for failure to comply with Local Rule 7-3); Alcatel-Lucent USA, Inc. v. Dugdale Commc’ns, Inc., No. CV 09-2140 PSG (JCx), 2009 WL 3346784, at *3-4 (C.D. Cal. Oct. 13, 2009) (denying motion to dismiss for lack of service of process for failure to comply with Local Rule 7-3).
2. Plaintiff Failed to Comply with Local Rule 23-3 , Federal Rule of Civil Procedure 23(c) , and this Court’s Prior Orders.
Walmart argues the Court should deny the Motion to Certify the Final Wage Statement Subclass because Mays failed to file a timely motion for class certification under Local Rule 23-3. (Opp’n at 17-18.) Plaintiff counters by arguing the Ninth Circuit recently "invalidated" Local Rule 23-3. (Reply at 15.)
Local Rule 23-3 requires Plaintiffs to file a motion for class certification within ninety days after service of the complaint. The Ninth Circuit recently found this "bright-line" rule is "incompatible with Federal Rule of Civil Procedure 23," ABS Entm’t, Inc. v. CBS Corp., 908 F.3d 405, 427 (9th Cir. 2018), which calls for a determination on class certification "[a]t an early practicable time after a person sues or is sued as a class representative." Fed.R.Civ.P. 23(c)(1)(A). The court noted that this flexible approach "makes sense" because "[t]he class action determination can only be decided after the district court undertakes a ‘rigorous analysis’ of the prerequisites for certification," which "may require discovery." ABS Entm’t, Inc., 908 F.3d at 427 (quoting Dukes, 564 U.S. at 350-51, 131 S.Ct. 2541).
Here, Plaintiff filed her initial complaint on December 18, 2017. (Dkt. No. 1) The parties stipulated to extend the motion for class certification deadline to July 2018— more than six months after Plaintiff filed her complaint. (Dkt. No. 36.) In July 2018, Plaintiff moved to certify two classes: (1) a Wage Statement Class comprised of "[a]ll Wal-Mart Stores, Inc. California workers who received one or more wage payments during the period from Friday, December 16, 2018, to date on which this Motion may be decided" and (2) a Former Employee Class comprised of "All Wal-Mart Stores, Inc. California workers who received one or more wage payments during the period from December 18, 2014, to the date on which this Motion may be decided, whose employ by Defendant terminated on or after December 18, 2014, yet who were provided additional wages or vacation pay after their Statement of Final Wages was issued." (Dkt. No. 43.)
On August 22, 2018, the Court denied Plaintiff’s prior Motion to Certify the "Former Employee Subclass" for failure to establish numerosity, commonality, and predominance and denied the Motion to Certify the "Wage Statement Class" for lack of standing with leave to amend "to cure the standing defects outlined [in the Order]." (Class Cert. Order at 7-13, 20-21 (emphasis added).) Plaintiff filed an amended complaint on September 12, 2018, (Dkt. No. 64), and now moves to certify, for the first time, a Final Wage Statement Subclass comprised of "All former non-exempt employees who worked for Wal-Mart Stores, Inc. in California and whose employment terminated (whether voluntarily or involuntarily) at any time from January 10, 2018 to the date on which this Motion may be decided." (Mot. at 2.)
The court in ABS Entertainment was concerned about a bright-line rule requiring litigants to move for class certification within ninety days of serving the complaint even though some cases necessarily require pre-certification discovery to survive a "rigorous analysis" of the class certification requirements. The court was not concerned with the circumstances at issue here— when a plaintiff moves to certify a brand-new subclass more than thirteen months after filing her initial complaint and that is outside the scope of a Court’s prior certification order. Plaintiff had plenty of time to conduct discovery prior to filing her first motion for class certification. The Court does not see a basis to reconsider [103 Fed.R.Serv.3d 584] its earlier denial of class certification for an entirely new subclass. Neither Federal Rule of Civil Procedure 23(c)(1)(A) nor the Court’s prior certification order requires that Plaintiff get a second bite at the apple.
3. Plaintiff Fails to Satisfy Rule 23 ’s Typicality and Adequacy Requirements as to the Final Wage Statement Subclass.
Plaintiff’s claim is atypical because she is not a member of the Final Wage Statement Subclass. Here, Walmart terminated her employment on February 10, 2017 and the class period is from January 10, 2018 to the current date. This means that Plaintiff did not receive a final wage statement within the entire period of the subclass.
Plaintiff also does not satisfy Rule 23’s adequacy requirement. A named plaintiff must be a member of the class she seeks to represent and Plaintiff does not qualify. Sali v. Corona Reg’l Med. Ctr., 909 F.3d 996, 1007 (9th Cir. 2018). Plaintiff acknowledges the problem this poses for her representation of the subclass. Plaintiff requests that the Court certify the subclass because Plaintiff suffered the same type of violation, but at a different time, or, if the Court takes issue with her representation of the Final Wage Statement Subclass, the Court give her the opportunity to locate another class representative for the subclass. The Court finds that the Final Wage Statement Subclass should not be certified because Lerna Mays, the named Plaintiff, is not a member of the Final Wage Statement Subclass. The Court will not allow Plaintiff’s counsel to substitute another class representative in place of Mays at this stage.
The Court is also troubled by the fact that Plaintiff’s class definition is identical to the class definition in Magadia. As Walmart points out, "the only difference is that the Magadia class period is December 2, 2015 to January 9, 2018" and Plaintiff’s "class period begins the day after." (Opp’n at 21.) The Court is not persuaded that Plaintiff or her counsel can adequately represent the proposed Final Wage Statement Subclass given that Magadia is a recent decision and counsel may be prohibited from communicating with those class members.
Thus, the Court DENIES Plaintiff’s Motion to Certify the Final Wage Statement Subclass.
IV. CONCLUSION
For the foregoing reasons, the Motion is GRANTED in part and DENIED in part. The parties are ORDERED to meet and confer and submit a joint proposed class notice within fourteen (14) days of the date of this Order, along with a proposed order approving the notice. The Class is CERTIFIED as defined below:
• The Wage Statement Class: All Wal-Mart Stores, Inc. California workers who received one or more wage payments during the period from Friday, December 16, 2016 to January 31, 2018.
• Lerna Mays is APPOINTED as Class Representative.
• Harris & Ruble is APPOINTED as Class Counsel.
IT IS SO ORDERED.