Cirrincione v. Am. Scissor Lift, Inc.

73 Cal.App.5th 619

288 Cal.Rptr.3d 539

Jason CIRRINCIONE, Plaintiff and Appellant,

v.AMERICAN SCISSOR LIFT, INC., et al., Defendants and Respondents.

C092519

Court of Appeal, Third District, California.

Filed December 6, 2021

As Modified January 4, 2022

Shimoda Law Corp., Galen T. Shimoda and Justin P. Rodriguez, Elk Grove, for Plaintiff and Appellant.

Rediger Labor Law, Robert L. Rediger, Justin R. Rediger, Sacramento, and Arielle M. Rediger for Defendants and Respondents.

Duarte, J. Plaintiff Jason Cirrincione appeals from the order denying class certification in this wage and hour action he filed against his former employer, defendant American Scissor Lift, Inc. (ASL). He contends reversal is required for a number reasons, including that the trial court's ruling rests upon improper merits determinations and incorrect assumptions. We disagree and affirm the order denying class certification.

BACKGROUND

We summarize the relevant background and add facts throughout the Discussion section where necessary to resolve the claims raised on appeal.

The Operative Complaint and Class Certification Motion

ASL is in the business of renting heavy machinery equipment such as scissor lifts and machine booms. It is headquartered in Stockton and has locations in West Sacramento, Stockton, Morgan Hill, and El Cajon. From approximately August 2013 to September 2016, plaintiff worked for ASL in Stockton as a non-exempt, hourly employee. His primary duty was to paint rental equipment; he also welded, sanded, cleaned, assembled, and delivered the equipment. Plaintiff and other hourly employees were eligible for production bonuses each pay period (twice a month), based on the amount of equipment they prepared for rental.

In April 2018, plaintiff filed a class action complaint against ASL and others.¹ The operative complaint, the second amended complaint, was filed in March 2019. It alleged causes of action for failure to pay overtime wages ( Lab. Code, §§ 510, 1194² ; Wage Order No. 16-2001 ( Cal. Code Regs., tit. 8, § 11160, subd. 3(A), hereafter Wage Order No. 16), failure to pay minimum wages ( § 1194 ), failure to provide meal breaks or premium wages in lieu thereof (§§ 226.7, 512; Wage Order No. 16, subd. 10(A), (B) & (F)), failure to provide rest breaks or premium wages in lieu thereof (§ 226.7; Wage Order No. 16, subd. 11(A), (D)), waiting time penalties (§§ 201-203), failure to pay reimbursement expenses (§ 2802), and unfair competition ( Bus. & Prof. Code, § 17200 ). Plaintiff purported to represent as many as 50 similarly situated former and current employees of ASL.

The relevant claims alleged in the operative complaint are predicated on ASL's policy and/or practice of rounding the work time of its employees (which allegedly resulted in the systematic underpayment of wages), and ASL's failure to: 1) provide meal breaks or pay premium wages in lieu thereof; 2) authorize or permit employees to take rest breaks or pay premium wages in lieu thereof; 3) timely pay its employees all unpaid wages due at termination or resignation; and 4) reimburse employees for using their personal cell phones, vehicles, and tools for work purposes.

In October 2019, plaintiff moved for class certification. He sought to certify a class or seven subclasses, including a rounding subclass, two meal break subclasses, two rest break subclasses, a no reimbursement subclass, and a final wage subclass. The proposed subclasses consisted of all non-exempt, hourly employees currently or formerly employed by ASL from April 20, 2014, or April 20, 2015 until the date of class certification. The meal and rest break subclasses limited membership in the class to employees who worked a certain number of hours per day. For example, the first meal break subclass was limited to employees who worked more than five hours in a day and the second meal break subclass was limited to employees who worked more than 10 hours in a day.

In support of his class certification motion, plaintiff asserted that "[t]here are at least 54 putative class members falling within the defined class," although he did not specify how many of these individuals were in each of the seven proposed subclasses. Plaintiff sought class certification based on the following theories of liability: 1) "ASL ... engaged in unlawful rounding of employees’ hours worked because it did not have any rounding policy and the net effect of its rounding resulted in the systematic underpayment of wages"; 2) "ASL failed to authorize and permit meal and rest periods by failing to adopt compliant meal and rest period policies, resulting in unpaid meal and rest period premiums"; and 3) "ASL failed to reimburse employees for the use of their personal tools and cell phones by failing to adopt any policy allowing for employees to submit expenses for reimbursement." Plaintiff asserted that ASL's conduct also resulted in derivative liability for waiting time penalties and unfair competition, and that those claims would "satisfy the commonality and predominance requirements to the same extent as the claims they are based on." He argued that class certification was warranted because "[t]he focus of this case is on ASL's actions in that it failed to adopt compliant policies, which resulted in unpaid wages, unreimbursed expenses, penalties, and interest." He added that "[t]he lawfulness of ASL's policies (or lack thereof) is what is being litigated in this action," which are " ‘the sort routinely, and properly, found suitable for class treatment.’ "

ASL opposed the motion, arguing that plaintiff failed to carry his burden to establish the requirements for class certification, including the well-defined community of interest requirement. Among other things, ASL argued that common questions of law and/or fact did not predominate over individual issues because its decisionmaking process was decentralized (each branch location was run by the managers at that location), it had no uniform company-wide policies or practices related to the proposed subclasses (e.g., rounding policy or practice) but the managers at each branch location "followed the law," and the applicable IWC wage order was posted at each branch location, in the employee break room or near the time card clock.

The Trial Court's Ruling

After a hearing, the trial court issued a written order denying plaintiff's motion for class certification in July 2020. The court concluded that class certification was not warranted because plaintiff had failed to establish that common questions of fact or law would predominate over individual questions, or that plaintiff's claims were typical of those of the proposed subclasses. The court provided no analysis of the typicality requirement, but focused on the predominance requirement, as we detail post . As for the class certification requirements of ascertainability and numerosity, the court stated:

"Plaintiff defines his subclasses according to objectively identifiable characteristics, and employees would be able to self-identify according to those definitions. Plaintiff has provided some evidence of numerosity, but only as to the overall number of [ASL's] employees. Plaintiff did not undertake to provide evidence of numerosity as to each subclass." The court, however, did not expressly deny class certification on the basis that plaintiff failed to carry his burden to show numerosity as to any of the proposed subclasses. Instead, it found that ASL's arguments regarding ascertainability and numerosity were "essentially arguments that individual questions predominate over common questions." As we review the trial court's actual reasons for denying class certification, no further discussion of these class certification requirements is warranted.³

( Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435-436, 97 Cal.Rptr.2d 179, 2 P.3d 27 ; Knapp v. AT&T Wireless Services, Inc. (2011) 195 Cal.App.4th 932, 939, 124 Cal.Rptr.3d 565.)

As for the proposed rounding subclass, the trial court began its analysis by noting that an employer's practice of rounding an employees’ work time is not a violation of California law, so long as the rounding is done in a fair and neutral manner that does not result in under compensation over a period of time, such as a policy or practice that encompasses only rounding time down. The court rejected plaintiff's contention that an employer's practice of rounding work time in the absence of a uniform, written rounding policy is a violation of California law, finding that plaintiff had failed to support his position with any case law. The court also rejected plaintiff's contention that any underpayment of wages resulting from ASL's rounding practice could be accomplished by simply reviewing payroll records, explaining that his claim was belied by his own evidence. The court noted that the timecard evidence submitted by plaintiff did not show clock-in or clock-out times for meal periods, and that while plaintiff submitted declarations from several employees indicating they frequently missed meal periods, none of those employees stated that they missed their meal period every day. The court explained that answering the question of whether an employee took a meal break on the days when their hours were rounded was key to determining whether ASL's rounding practice resulted in underpayment of wages and would appear to vary from employee to employee and day to day, and could not be accomplished by mere resort to payroll records because, in at least some cases if not all cases, the payroll records did not show whether meal periods were taken. The court added that the evidence submitted by ASL showed that its rounding practice varied from location to location and supervisor to supervisor. For example, a supervisor at the Morgan Hill branch rounded clock-in and clock-out times up or down to the nearest quarter hour, whereas supervisors at the El Cajon branch and West Sacramento branches always rounded time up in favor of the...