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Aiman-Smith & Marcy – Superior Court Certified Case Against TNS

SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES

Booker v. Tanintco, Inc., et al.

Motion For Class Certification

The motion is granted as to the workers from the staffing companies. As to the employees TNS hired directly, the motion is denied as to the overtime claims and is otherwise granted. I The lead class representative now is Lorenzo Benton. The court refers to all plaintiffs and representative and putative class members as “Benton.” The court calls the defendant “TNS,” which is shorter and now more accurate than “Tanintco.” Benton’s class action against TNS concerns rest and meal breaks and overtime pay. TNS provides services to the telecommunications industry. Waves of innovation transformed this industry. From 2G to 3G to 4G, cell phones gained speed and features. To make these changes possible, TNS workers traveled to cell towers and sites, tore out old gear, and installed new hardware for end users like AT&T. During the class period, TNS hired 87 workers directly and hired about 975 other workers through 44 staffing companies. TNS used a uniform but evolving form contract with all the staffing companies. TNS’s policy on labor code obligations was to delegate compliance responsibility to the staffing companies. Additional facts can be found in Benton v. Telecom Network Specialists, Inc. (2013) 220 Cal.App.4th 701, 705-715. II Given current law and the factual record now before the court, the motion is granted in all respects except as to the overtime claims of employees TNS hired directly. The Court of Appeal reversed this court’s denial of class certification and remanded the case in 2013. The 2013 Benton appellate opinion provides many controlling holdings for this motion. For instance, evidence some employees worked under conditions that permitted them to take breaks is not a reason to deny class certification. (Benton v. Telecom Network Specialists, Inc., supra, 220 Cal.App.4th 701, 725.) The proper focus is on Benton’s theory of liability, which is that TNS violated wage and hour requirements by failing to adopt a meal and rest period policy. The key question is whether this theory is susceptible to common proof. Whether TNS is required to adopt a rest break policy is a merits argument, for consideration after today’s ruling. (Id. 727.) The fact that staffing companies had different meal and rest period policies is not a basis for denying certification. (Id. 728.) The relevant wage order imposes an affirmative obligation on every employer to authorize and provide legally required meal and rest breaks. If an employer fails to do so, it is liable. (Id. 728.) The class is ascertainable. Benton seeks to represent a class of persons “who provided skilled technical labor for the benefit of TNS’s Customers through TNS where the work was performed in California within a Class Period from June 27, 2002, through entry of judgment.” (Second Amended Complaint, ¶ 24.) People know or can determine whether they worked as a technician on a TNS job site between June 27, 2002 and the present. Common issues predominate as to whether TNS is an employer or coemployer, as to whether TNS authorized and permits meal and rest breaks, and as to Benton’s overtime and derivative claims. Additional common questions are whether TNS can delegate wage-and-hour compliance to its staffing companies, and whether TNS’s meal and rest policy for its employees is legal. Lorenzo Benton and Curtis Walker are adequate class representatives. The court appoints them as class representatives and their lawyers as class counsel. Neither side advocates subclasses, and the court imposes none at this time. All remain free to revisit this issue. III TNS raises seven objections to Benton’s motion. The sixth objection is valid in part: the court refuses to include in this class action the overtime claims by the workers TNS hired directly. The other objections are not good reasons to deny certification. We address TNS’s seven objections in the order in which it presented them. A First, TNS incorrectly denies there are common questions as to whether it employed the class. Common evidence will show, however, whether TNS did or did not employ (or jointly employ) the putative class members. Benton’s theory is that “TNS, as a [coemployer] and entity in control of the work, is liable for failure to provide breaks to all class members.” (Memorandum of Points and Authorities in Support of Plaintiffs’ Motion for Class Certification, p. 1.) This theory creates many important classwide issues. Is S.G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, 349-360 or Martinez v. Combs (2010) 49 Cal.4th 35, 52, 64 the proper source of the law to govern this case? Did TNS’s particular classwide practice create an employment relationship? Did delegation to the staffing companies mean TNS was not a coemployer of the technicians? If TNS was a coemployer, did its delegation policy mean it faced no further responsibility for Labor Code compliance? These questions can be resolved on a classwide basis. TNS did use a particular classwide practice, which began by requiring technicians to submit time sheets to TNS. TNS then delegated to the staffing companies the responsibility for paying technicians according to those time sheets. As TNS stated in its March 16, 2010 Master Installation and Testing Services Agreement, the “Contractor [staffing company] shall be solely responsible for properly compensating its employees for all hours worked, including but not limited to, where required by law, compensation for travel time and preliminary and postliminary activities.” (Declaration of Hallie Von Rock in Support of Plaintiffs’ Memorandum of Points and Authorities in Support of Motion for Class Certification, Exhibit B, p. TNS002948.) This form contract also stated that “[b]y Tuesday at 12:00 pm Central Standard Time of each week, Contractor’s Employees shall submit their time sheets in the TNS Trinity Database for the prior Workweek, including any Work performed on Saturday or Sunday, to the appropriate TNS Site Manager for approval.” (Id. TNS002949.) Donald Goodrich, the person most knowledgeable for CST Services, testified that CST Services “only pay[s] the employees based on the hours that are recorded and approved by TNS.” (Appendix of Exhibits in Support of Defendant Telecom Network Specialists, Inc.’s Opposition to Plaintiffs’ Motion for Class Certification, Exhibit O, p. 107.) Similarly, Mohammed Denish-Bahreini, the person most knowledgeable for PMK Engineering Network International, testified his company noticed TNS would ask technicians to change the number of hours they listed on their time sheets. (Id., Exhibit G, p. 123.) All iterations of the Master Installation and Testing Services Agreement embraced this procedure, which applied to all the staffing companies. (See Memorandum of Points and Authorities in Support of Defendant’s Opposition to Motion for Class Certification, 6:12-18.) TNS revised these classwide agreements in limited ways a few times over the class period. (Compare TNS003132 and TNS003149 with TNS002951 and TNS003167.) TNS incorrectly cites Futrell v. Payday California, Inc. (2010) 190 Cal.App.4th 1419 as a reason to deny certification. Futrell held that “control over wages” signifies the person who has the power to set an employee’s rate of pay, not the person who physically prepares paychecks. (Futrell v. Payday California, Inc., supra, 190 Cal.App.4th 1419, 1432.) Futrell is not on point. Benton does not contend TNS physically prepared the paychecks for the putative class members. Rather, Benton maintains TNS determined the number of hours for which technicians would be paid by requiring the technicians to submit their time sheets to TNS for approval. Futrell’s holding does not apply to this issue. TNS offers merits evidence that is voluminous but not pertinent at the class certification stage: The person most knowledgeable for staffing company Orin was Vincent Camporeale, who testified Orin required its technicians to fill out a “simpler” time sheet for Orin’s records, in addition to the time sheet it filled out for TNS. (Appendix of Exhibits in Support of Defendant Telecom Network Specialists, Inc.’s Opposition to Plaintiffs’ Motion for Class Certification, Exhibit E, pp. 65-66.) Camporeale also testified Orin would go by the time sheet its employees filled out for Orin in the event of a discrepancy between the time sheet its technicians filled out for Orin and the time sheet they filled out for TNS. (Appendix of Exhibits in Support of Defendant Telecom Network Specialists, Inc.’s Opposition to Plaintiffs’ Motion for Class Certification, Exhibit E, pp. 137-138.) Putative class member Jeffrey Doorman testified he submitted his time sheets directly to Leaf, his staffing company, and that he does not recall submitting time sheets to TNS, although he remembers “some discussion” about submitting time sheets to TNS. (Declaration of Jeffrey Doorman, ¶ 8.) Mohammed Denish-Bahreini, the person most knowledgeable for Engineering Network International, testified that, if TNS has not yet approved time sheets for its technicians but the staffing company needed to pay the technicians, his company would pay the technicians based on the hours the technicians represented they worked. (Appendix of Exhibits in Support of Defendant Telecom Network Specialists, Inc.’s Opposition to Plaintiffs’ Motion for Class Certification, Exhibit G, pp. 118-119.) Gus Mercado, the person most knowledgeable for Datalogix, likewise testified Datalogix sometimes paid its technicians before TNS approved their time sheets. (Appendix of Exhibits in Support of Defendant Telecom Network Specialists, Inc.’s Opposition to Plaintiffs’ Motion for Class Certification, Exhibit T, p. 66.) This evidence goes to the merits: whether TNS exerted enough control over the wages of the staffing companies technicians to count as the technicians’ coemployer. The merits evidence is not relevant to class certification. TNS also argues some technicians believed they were “subject to the policies and procedures of the [staffing companies]” and were not “directed by TNS exclusively[.]” (See Memorandum of Points and Authorities in Support of Defendant’s Opposition to Motion for Class Certification, p. 7.) The relationship between the technicians and the staffing companies is irrelevant to Benton’s theory of recovery. Benton seeks to prove TNS was an employer of the technicians regardless of the nature of the technicians’ relationships with the staffing companies. The issue is whether TNS exerted enough control over technicians to make TNS their coemployer. This issue is suitable for resolution on a classwide basis. TNS’s citation of the testimony of two putative class members who claim that they interacted with TNS site managers only slightly does not render the issue inappropriate for resolution on a classwide basis. (See Declarations of John Fillion, ¶ 9 and Jeffrey Dorman, ¶ 5.) TNS also contends it did not control the hours of the technicians. There is a volume of this TNS evidence, but, again, it is irrelevant because it goes to the merits. For instance, class member Lon Irwin testified no one told him he couldn’t take a break between job sites. (Declaration of Lon Irwin, ¶ 15.) Class member Dan Zimmerly testified no one told him he had to go directly from one jobsite to another. (Declaration of Dan Zimmerly, ¶ 4.) Class member Alis Peraza testified he tried to finish his work as quickly as possible, because if he finished his work quickly, he could go home early and still be paid for his entire shift. (Declaration of Alis Peraza, ¶ 5.) Donald Goodrich, the person most knowledgeable for CST Services, testified CST Services asked its technicians to let CST Services know if TNS asked them to work more than 12 hours in a day. (Appendix of Exhibits in Support of Defendant Telecom Network Specialists, Inc.’s Opposition to Plaintiffs’ Motion for Class Certification, Exhibit O, pp. 187-188.) This evidence goes to the merits of whether TNS exerted too little control to qualify as a coemployer. It is not relevant to a determination of whether this case is appropriate for class treatment. B Second, TNS incorrectly claims there is no evidence of a uniform classwide policy on meal and rest breaks. TNS, however, did have a uniform classwide practice: it sought to avoid an employment relationship with the staffing company technicians and to place the onus on staffing companies to ensure technicians received their meal and rest breaks. The court can determine the legality of this practice through the class action mechanism. As the Court of Appeal wrote, Benton’s theory is that responsibility for meal and rest break compliance could not be delegated to a coemployer. Benton claims TNS itself was required to authorize and permit meal and rest periods because it exerted sole control over the technicians’ worksites and the manner in which they reported their hours. Benton’s position is that “the parties’ evidence uniformly showed that (1) TNS dictated the technicians’ day-to-day working conditions, including whether and when the employees could take breaks; (2) TNS was solely responsible for instructing technicians how to report their time, including whether and how to record break periods; and (3) the coemployer staffing companies had no way of knowing or controlling whether technicians took their meal and rest breaks.” (Benton v. Telecom Network Specialists, Inc., supra, 220 Cal.App.4th 701, 729.) Benton argues TNS was not permitted to delegate its meal and rest break obligations to a coemployer staffing company, given the amount of immediate control TNS exerted over the workers. (Ibid.) This theory of liability-that a joint employer who exerts sole control over worksite conditions and the reporting of hours must personally authorize and permit meal and rest breaks-can be determined on a classwide basis. Benton’s evidence to support his motion. TNS sought to place the burden of ensuring compliance with wage and hour laws on the staffing companies. In its March 16, 2010 Master Installation and Testing Services Agreement, TNS stated the “Contractor [staffing company] will notify employees in writing of their rights and responsibilities under applicable state and federal wage and hour laws including but not limited to, where applicable, any entitlement to overtime and/or double time, any entitlement to meal and rest periods and their responsibility for accurately recording all hours worked and the taking of meal periods.” (Declaration of Hallie Von Rock in Support of Plaintiffs’ Memorandum of Points and Authorities in Support of Motion for Class Certification, Exhibit B, p. TNS002947.) TNS also stated “[t]he relationship between TNS and Contractor [staffing company] is that of independent contractor. This Agreement does not create any employee, agency, joint venture or partnership relationship between TNS and Contractor [staffing company], its subcontractors or their respective employees, nor shall any decision or directive issued by TNS, or its designated representatives, to Contractor or its subcontractors confer upon TNS any responsibility for the means, methods or techniques used in the performance of this Agreement.” (Declaration of Hallie Von Rock in Support of Plaintiffs’ Memorandum of Points and Authorities in Support of Motion for Class Certification, Exhibit B, p. TNS002956.) The agreement further provides that the “[s]ubcontractor represents and covenants that it is in compliance with and will at all times comply with all applicable federal, state and local laws, regulations, ordinances and rules that relate to its business and the services to be provided, including but not limited to all rules and regulations pursuant to: [¶] All applicable federal and state wage and hour laws, including applicable recordkeeping, overtime and meal and rest period laws[.]” (Declaration of Hallie Von Rock in Support of Plaintiffs’ Memorandum of Points and Authorities in Support of Motion for Class Certification, Exhibit B, pp. TNS002956-TNS002957.) Other iterations of the Master Installation and Testing Services Agreement are similar. (See, e.g., Declaration of Hallie Von Rock in Support of Plaintiffs’ Memorandum of Points and Authorities in Support of Motion for Class Certification, Exhibit B, pp. TNS003137-TNS003138, TNS003154, TNS003163, TNS003172, TNS003173.) To the same end, TNS’s person most knowledgeable on certain issues, Neal Gee, testified TNS did not “provid[e] subcontracted [technicians] with any kind of handbook or policies and procedures.” (Declaration of Hallie Von Rock in Support of Plaintiffs’ Memorandum of Points and Authorities in Support of Motion for Class Certification, Exhibit A, p. 64.) TNS’s former field lead and project manager, Jeffrey Ellis, testified that, before 2009, TNS did not keep records of its workers’ meal breaks. (Declaration of Hallie Von Rock in Support of Plaintiffs’ Memorandum of Points and Authorities in Support of Motion for Class Certification, Exhibit B, p. 133.) Ellis was unaware of any written policies on meal or rest breaks TNS distributed to technicians it hired through staffing services. (Declaration of Hallie Von Rock in Support of Plaintiffs’ Memorandum of Points and Authorities in Support of Motion for Class Certification, Exhibit B, pp. 159-160.) Benton’s evidence also suggests the staffing companies could not know whether the technicians they supplied to TNS received meal and rest breaks. The person most knowledgeable for staffing company Communication Systems Technical Services testified that company had “no way of knowing” whether the technicians it supplied to TNS took their meal or rest breaks. (Declaration of Hallie Von Rock in Support of Plaintiffs’ Memorandum of Points and Authorities in Support of Motion for Class Certification, Exhibit C, p. 65.) The representative testified staffing company Dataworkforce’s day-to-day supervision of TNS technicians was nil, and that Dataworkforce had no control over whether TNS technicians took their meal and rest breaks. (Declaration of Hallie Von Rock in Support of Plaintiffs’ Memorandum of Points and Authorities in Support of Motion for Class Certification, Exhibit D, p. 46-47.) A representative said Datalogix provided no instruction to the TNS technicians. (Declaration of Hallie Von Rock in Support of Plaintiffs’ Memorandum of Points and Authorities in Support of Motion for Class Certification, Exhibit E, p. 55.) Datalogix had no way of knowing whether TNS technicians took meal and rest breaks. (Declaration of Hallie Von Rock in Support of Plaintiffs’ Memorandum of Points and Authorities in Support of Motion for Class Certification, Exhibit E, p. 108.) The knowledgeable person testified staffing company Orin had no input on how technicians would perform their work for TNS. (Declaration of Hallie Von Rock in Support of Plaintiffs’ Memorandum of Points and Authorities in Support of Motion for Class Certification, Exhibit G, p. 100.) Class member Elston Jackson testified Orin “had no clue on a day-to-day basis what [he] did.” (Declaration of Hallie Von Rock in Support of Plaintiffs’ Memorandum of Points and Authorities in Support of Motion for Class Certification, Exhibit K, p. 100.) Some evidence suggests technicians working at TNS job sites did not receive meal or rest breaks. Benton did not take meal or rest breaks because “the site has to be completed by 6:00 a.m. And if [the technicians] had taken a break or a lunch, it wouldn’t have been completed.” (Declaration of Hallie Von Rock in Support of Plaintiffs’ Memorandum of Points and Authorities in Support of Motion for Class Certification, Exhibit H, p. 100.) Mohammed Habib did not take meal breaks while working for TNS. (Declaration of Hallie Von Rock in Support of Plaintiffs’ Memorandum of Points and Authorities in Support of Motion for Class Certification, Exhibit J, p. 152.) Shakeel Memon testified no one from TNS told him he could take meal breaks during his shifts. (Declaration of Hallie Von Rock in Support of Plaintiffs’ Memorandum of Points and Authorities in Support of Motion for Class Certification, Exhibit L, p. 45.) Guisselba Siles testified no one from TNS ever told her that she could take meal or rest breaks during her shifts. (Declaration of Hallie Von Rock in Support of Plaintiffs’ Memorandum of Points and Authorities in Support of Motion for Class Certification, Exhibit M, pp. 56-57.) Elston Jackson testified Vince Gaytan, another technician, instructed him to record meal breaks that he had not taken. (Declaration of Hallie Von Rock in Support of Plaintiffs’ Memorandum of Points and Authorities in Support of Motion for Class Certification, Exhibit K, p. 43.) Jackson also testified he never took rest breaks while working on TNS job sites. (Declaration of Hallie Von Rock in Support of Plaintiffs’ Memorandum of Points and Authorities in Support of Motion for Class Certification, Exhibit K, p. 44.) He testified that it would have jeopardize his employment if he had left the job site for breaks. (Declaration of Hallie Von Rock in Support of Plaintiffs’ Memorandum of Points and Authorities in Support of Motion for Class Certification, Exhibit K, p. 90.) Evidence suggests TNS’s practices were common to all technicians TNS assigned to job sites. TNS’s former field lead and project manager Jeffrey Ellis testified that technicians who worked directly for TNS and technicians who TNS hired through staffing companies “came to the same meetings, got the same parts, got the same assignments.” (Declaration of Hallie Von Rock in Support of Plaintiffs’ Memorandum of Points and Authorities in Support of Motion for Class Certification, Exhibit B, p. 25.) Plaintiff Curtis Walker testified the technician’s work environment remained the same, regardless of which staffing company supplied the technician to TNS. (Declaration of Hallie Von Rock in Support of Plaintiffs’ Memorandum of Points and Authorities in Support of Motion for Class Certification, Exhibit I, p. 480.) Benton’s evidence supports class treatment. Benton has supported his theory that TNS uniformly placed the responsibility on the staffing companies from which it obtained technicians to ensure that technicians received meal and rest breaks, but this strategy was unworkable as a practical matter because staffing companies could not supervise their technicians on TNS’s job sites. As a result, workers on TNS’s job sites routinely did not receive meal or rest breaks. This evidence shows common issues of law and fact exist on two questions. First, did TNS’s delegation of responsibility to the staffing companies discharged any obligation by TNS to inform technicians that they were authorized and permitted to take meal and rest breaks while on TNS’s job sites? And second, were technicians at TNS’s job sites permitted to take the meal and rest breaks? The meal and rest break claims thus are certified for class treatment. TNS opposition to meal and rest break certification centrally revolves around Dailey v. Sears, Roebuck & Co. (2013) 214 Cal.App.4th 974, 989, 1001, 1002 and Wal-Mart Stores, Inc. v. Dukes (2011) 131 S.Ct. 2541, 2550-2551. (Memorandum of Points and Authorities in Support of Defendant’s Opposition to Motion for Class Certification, 19-21.) TNS argued these legal authorities to the Court of Appeal in this case. The Benton opinion cited neither. Dailey and Wal-Mart Stores, Inc. v. Dukes thus are not pertinent to the issues that the Benton opinion remanded to this trial court. The same holds for TNS’s more limited reliance on Soderstedt v. CBIZ Southern California (2011) 197 Cal.App.4th 133, 153-154. (See also Benton v. Telecom Network Specialists, Inc., supra, 220 Cal.App.4th 701, 727 (“TNS’s assertion that it was not required to adopt the sort of meal and rest break policy envisioned by plaintiffs goes to the merits of the parties’ dispute. The question of certification, however, is essentially a procedural one that does not ask whether an action is legally or factually meritorious.” ) (citations and internal quotation marks omitted).) TNS next urges the court to “consider the variations in the meal and rest break policies of the [staffing companies] and the individual effects of their policies.” (Opposition 22:2-3.) The court did so on May 2, 2012. The Court of Appeal corrected that error in its Benton decision. (Benton v. Telecom Network Specialists, Inc., supra, 220 Cal.App.4th 701, 726.) In sum, the meal and rest break issue can be analyzed on a class basis. C Third, TNS claims there are no common issues as to overtime pay. This claim is erroneous. TNS admits to – indeed, touts – its classwide policy of delegating overtime payments to the staffing companies. (Defendant Telecom Network Specialists, Inc.’s Opposition to Plaintiffs’ Motion for Class Certification 25:23-24.) The legality of this delegation policy is susceptible to class analysis. As the Court of Appeal observed, Benton theorizes that TNS was a joint employer of the technicians and thus had a duty to ensure that its employees were being paid overtime. TNS violated this obligation, Benton claims, by failing to adopt procedures verifying the staffing companies were in fact paying the employees’ overtime. Benton argues TNS would be liable to the class if it violated wage and order laws by failing to ensure its staffing companies paid the technicians overtime wages. (Benton v. Telecom Network Specialists, Inc., supra, 220 Cal.App.4th 701, 730-731.) This theory is appropriate for class analysis. Again, TNS offers evidence on the merits of the issue. Vincent Camporeale testified Orin paid overtime to the technicians it assigned to TNS’s jobsites. (Appendix of Exhibits in Support of Defendant Telecom Network Specialists, Inc.’s Opposition to Plaintiffs’ Motion for Class Certification, Exhibit E, p. 148.) Donald Goodrich testified CST Services likewise paid overtime. (Appendix of Exhibits in Support of Defendant Telecom Network Specialists, Inc.’s Opposition to Plaintiffs’ Motion for Class Certification, Exhibit O, p. 57.) Tom Berrie testified Dataworkforce paid its technicians overtime. (Appendix of Exhibits in Support of Defendant Telecom Network Specialists, Inc.’s Opposition to Plaintiffs’ Motion for Class Certification, Exhibit B, p. 43.) Mohammed Denish-Bahreini, the person most knowledgeable for PMK Engineering Network International, testified that his company paid overtime to some, but not all, of the technicians it supplied to TNS’s job sites. (Appendix of Exhibits in Support of Defendant Telecom Network Specialists, Inc.’s Opposition to Plaintiffs’ Motion for Class Certification, Exhibit G, pp. 136, 139-140.) Gus Mercado, the person most knowledgeable for Datalogix, testified that Datalogix paid overtime to some, but not all, of its technicians. (Appendix of Exhibits in Support of Defendant Telecom Network Specialists, Inc.’s Opposition to Plaintiffs’ Motion for Class Certification, Exhibit T, pp. 95-96, 98.) TNS may rely on this merits evidence to show staffing companies paid staffing company technicians overtime and therefore TNS does not owe them overtime pay. This evidence is irrelevant to certification, however, because Benton’s theory is that TNS delegated responsibility to the staffing companies to ensure that technicians received appropriate overtime pay. As to that theory, class certification is appropriate. D Fourth, TNS mistakenly claims internal class conflicts rule out certification. TNS notes some class members told other class members not to take breaks, or to record breaks that they did not take. (See Memorandum of Points and Authorities in Support of Defendant’s Opposition to Motion for Class Certification, p. 24.) For example, Elston Jackson testified Vince Gaytan, another technician, told him to record meal breaks that he had not taken. (Declaration of Hallie Von Rock in Support of Plaintiffs’ Memorandum of Points and Authorities in Support of Motion for Class Certification, Exhibit K, p. 43.) But Gaytan testified he took his meal and rest breaks, and that told other technicians they were entitled to take their breaks. (Declaration of Vincent Gaytan, ¶¶ 2, 9.) TNS also cites testimony from its former field lead and project manager, Jeffrey Ellis, who stated that TNS’s site manager would be “the most knowledgeable person on site[,]” even if that person worked for a staffing company. (Appendix of Exhibits in Support of Defendant Telecom Network Specialists, Inc.’s Opposition to Plaintiffs’ Motion for Class Certification, Exhibit H, p. 103.) Ellis also testified that TNS would expect other technicians to follow the instructions of that site manager, and that site manager could remove a technician from the job site. (Appendix of Exhibits in Support of Defendant Telecom Network Specialists, Inc.’s Opposition to Plaintiffs’ Motion for Class Certification, Exhibit H, pp. 103-104.) These conflicts do not preclude certification. It is not essential that all class members present factually consistent testimony. Benton does not seek to hold putative class members liable. Rather, Benton pursues TNS for its failure to authorize meal and rest breaks. Any factual conflict in the testimony of members of the putative class is not a conflict of interest with practical consequences to other putative class members. In addition, TNS conflates the position of “field lead” with a technician’s role as “the lead” on a job site. (See Declaration of Michael Hare, ¶ 3.) TNS has only two field leads in the Los Angeles market. (Appendix of Exhibits in Support of Defendant Telecom Network Specialists, Inc.’s Opposition to Plaintiffs’ Motion for Class Certification, Exhibit H, p. 20.) TNS’s evidence that certain technicians worked in lead roles is not equivalent to evidence that these technicians performed the functions of a field lead, which included supervisory duties and approval of time sheets. This issue is insubstantial. E Fifth, TNS claims the class cannot be certified because Benton’s trial plan is deficient. This is not so. Benton provides a plan for managing this case in a fair and efficient way. He envisions no statistical sampling for either liability or for the bulk of damages calculations. (Benton Trial Plan 6:16-21.) Where TNS has kept no records, however, Benton proposes a calculation with simple statistical analysis. (Id. pp. 6-7.) Benton offers the declaration of Dr. Brian Kriegler, Ph.D. in support of his approach. Benton observes that to use a bench trial first to resolve equitable claims “will bind the parties leaving little or nothing to be tried to the jury.” (30:14-15.) This is a logically sound and feasible plan for handling the trial in this case. TNS attacks this trial plan at pages 26 through 28 of his opposition brief. TNS’s first objection (bottom of page 26) is that Benton does not possess most of the relevant policies, time records, or payroll records. But this fact is consistent with Benton’s delegation theory: TNS did not take proper charge of a problem that it owned. If Benton is right that TNS’s policy violated the law, missing records will be a problem for the employer that did not keep records properly, not for Benton. (See Lab. Code, § 1174, subd. (d) (employer bears the burden to “[k]eep, at a central location in the state or at the plants or establishments at which employees are employed, payroll records showing the hours worked daily by and the wages paid to, and the number of piece-rate units earned by and any applicable piece rate paid to, employees employed at the respective plants or establishments.”).) If Benton is wrong, TNS wins the case. TNS’s first point is not a valid argument against certification. TNS next demands more information from Benton on a list of 11 issues. (Memorandum of Points and Authorities in Support of Defendant’s Opposition to Motion for Class Certification, 27:1-24.) Benton properly responds that these demands stem from TNS’s theory of the case and not Benton’s. (See Benton v. Telecom Network Specialists, Inc., supra, 220 Cal.App.4th 701, 729 (TNS could not discharge its affirmative obligation to authorize and permit meal and rest breaks purely through inaction).) Moreover, Duran v. U.S. Bank National Assn. (2014) 59 Cal.4th 1 did not hold that class certification must be denied if the plaintiff fails to state, for instance, “how many [putative class members the plaintiffs] will present at trial” to establish the defendant’s liability. (Memorandum of Points and Authorities in Support of Defendant’s Opposition to Motion for Class Certification, 27:4-5.) TNS thus would erect barriers to class certification that have no legal precedent. Citing Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 769, TNS next attacks one Dr. Kriegler, who is Benton’s statistics expert. Kriegler is nothing like the so-called expert in Sargon, however, who projected that a contract breach would cause over $1 billion in damage to a company that was earning only $100,000 yearly profit. (Sargon, supra, 753.) On the basis of a speculative and invalid method, the Sargon “expert” opined his client’s tiny company was destined to become a worldwide industry leader. By contrast, Kriegler holds a doctorate in the relevant discipline — statistics — and proposes conventional and modest mathematical methods. TNS’s lead objection, for instance, is that some workers may have reported data inaccurately. (Defendant Telecom Network Specialists, Inc.’s Opposition to Plaintiffs’ Motion for Class Certification 28:3-5.) Supposed data imperfections go to the weight of the evidence, however, and not its admissibility. Nearly all data sets have some flaws. This criticism is not fundamental. TNS in its opposition brief makes no effort to demonstrate the quantitative significance, or insignificance, of its point. The fact finder can account for criticisms of this nature if they prove valid and if Kriegler does not adjust his approach in response. In opposition, TNS relies on the declaration of Robert Crandall. Crandall devotes the bulk of his declaration to arguments about the propriety of Benton’s trial plan. This material belongs in a legal brief. This legal argument is not a proper subject for expert testimony. “After a class has been certified, the court’s obligation to manage individual issues does not disappear. . . . Trial courts also have the obligation to decertify a class action if individual issues prove unmanageable.” (Duran v. U.S. Bank National Assn., supra, 59 Cal.4th 1, 29.) This court will retain supervision of this case’s progress. If Benton’s ability to manage the proceeding should become doubtful, the court has the power to revise the trial plan and, if necessary, to decertify the class. F Sixth, TNS correctly argues the technicians it hired directly – the “direct hires” – cannot properly be treated on a class basis on the issue of overtime pay. The evidence is that TNS’s overtime policy fully complied with legal requirements. (Gee deposition and TNS002978 (“It is the policy of the Company to pay employees . . . in a manner that the amount, method, and timing of wage payments comply with any applicable laws . . . .”).) Benton does not challenge the wording of this policy or suggest that it is facially defective. Under this lawful policy, the evidence uniformly shows TNS paid overtime correctly. (Declarations of Lon Irwin, ¶ 19; Brett Martin, ¶ 8; Alis Peraza, ¶ 5; Shane Weeres, ¶ 10; Scott Womack, ¶ 8; Dan Zimmerly, ¶ 11.) Benton offers no contrary evidence. When there is undisputed and uniform proof of lawful conduct, there is no need for a class action. As to the meal and rest break claims, however, Benton does present evidence from employee handbooks of a policy that he charges is illegal on its face. (See exhibits 5-7 to Gee deposition: TNS003012, TNS003209, and TNS003267.) “The theory of liability – that [TNS] has a uniform policy, and that that policy, measured against wage order requirements, allegedly violates the law – is by its nature a common question eminently suited for class treatment.” (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1033.) The meal and rest break claims of the directly hired employees will be included within the class. Benton does not request a subclass for the directly hired employees. Neither does TNS. The Court of Appeal in Benton made no holding on this issue. The court will be free to create a subclass if some pressing need arises as this litigation progresses. There is no apparent reason to address this topic now. G Seventh, TNS argues Benton’s derivative claims should not be certified. TNS argues Benton’s claims for waiting time penalties cannot be certified because “inquiries in this case turn on several individualized questions relating to the particular Contractor making the payment decision.” (Memorandum of Points and Authorities in Support of Defendant’s Opposition to Motion for Class Certification, p. 29. ) As discussed above, the relationship of the technicians to the staffing companies is irrelevant to Benton’s theory of recovery. Benton contends that TNS is the co-employer of the technicians, and is liable in its own right for any wage and hour violations. TNS also complains that, because waiting time penalties under Labor Code section 203 are available for employees who are discharged or quit, “[i]ndividualized inquiries will be required to identify former employees.” Memorandum of Points and Authorities in Support of Defendant’s Opposition to Motion for Class Certification, p. 30.) TNS should be able swiftly to identify technicians who no longer work on its job sites from its own records and the records of the staffing companies. TNS also argues Benton has not demonstrated that any members of the putative class were “terminated in California[.]” (Memorandum of Points and Authorities in Support of Defendant’s Opposition to Motion for Class Certification, p. 29:22.) TNS apparently contends, based on Sullivan v. Oracle Corp. (2011) 51 Cal.4th 1191, that Labor Code section 203 might not apply to residents of other states who were terminated while outside of California. Sullivan suggests the opposite. In Sullivan, the California Supreme Court held that nonresidents may recover under California’s overtime laws for work performed within California. The court explained, “To exclude nonresidents from the overtime laws’ protection would tend to defeat their purpose by encouraging employers to import unprotected workers from other states. Nothing in the language or history of the relevant statutes suggests the Legislature ever contemplated such a result.” (Sullivan v. Oracle Corp., supra, 51 Cal.4th 1191, 1198.) While the court did not consider waiting time penalties under Labor Code section 203, the same logic applies. An employer is liable for any waiting time penalties under Labor Code section 203 for wages earned in California, regardless of residence. Benton seeks to represent a class of persons who worked in California. (Second Amended Complaint, ¶ 24.) If the putative class members worked in California, they are entitled to the protections of California’s wage and hour laws, notwithstanding their states of residence. Benton’s derivative claims are certified. IV Benton filed an unauthorized 13-page “Trial Plan,” to which TNS responded with an unauthorized 11-page brief attacking this trial plan. And TNS filed an unauthorized “Compendium of Testimony in Support of Defendant Telecom Network Specialists, Inc.’s Opposition to Plaintiffs’ Motion for Class Certification.” These documents evade the page limits on briefs. (See Mora v. Big Lots Stores, Inc. (2011) 194 Cal.App.4th 496, 514.) TNS already exceeded the statutory page limits by filing a 30-page memorandum of points and authorities in opposition to the motion by stipulation with Benton. (See Cal. Rules of Court, rule 3.764(c)(2).) The parties must avoid unauthorized filings in the future.

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