ORDER ADOPTING IN PART THE FINDINGS AND RECOMMENDATIONS GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR CLASS CERTIFICATION [(Doc. 192)

ANTHONY W. ISHII, District Judge.

Pursuant to Rule 23 of the Federal Rules of Civil Procedure, Plaintiffs Santiago Rojas, Josefino Rameriz, Catalina Robles, Juan Montes, Benito Espino, and Guillermina Perez (collectively, "Plaintiffs") seek class certification of individuals who worked for Defendant Sunview Vineyards of California, Inc. ("Sunview" or "Defendant"). Specifically, Plaintiffs seek to certify the following classes:

(Doc. 165 at 24-26) (emphasis omitted). On February 9, 2012, the Magistrate Judge recommended Plaintiffs' motion for class certification be granted in part and denied in part. (Doc. 192). Plaintiffs and Defendant filed timely objections to Findings and Recommendations on February 23, 2012 (Docs. 194-198), and filed responses to the objections on March 8, 2012 (Docs. 199-200).

I. LEGAL STANDARDS

Class certification is governed by the Federal Rules of Civil Procedure, which provide a class action is proper if:

Fed. R. Civ. P. 23(a). These prerequisites are generally referred to as numerosity, commonality, typicality, and adequacy of representation, and "effectively limit the class claims to those fairly encompassed by the named plaintiff's claims." General Telephone Co. of the Southwest. v. Falcon, 457 U.S. 147, 155-56 (1982) (citing General Telephone Co. v. EEOC, 446 U.S. 318, 330 (1980)).

The Court is required to perform a "rigorous analysis," which may require it "to probe behind the pleadings before coming to rest on the certification question." Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2551 (2011) (quoting Falcon, 457 U.S. at 160-61). The discretion of whether to certify a class is committed to the discretion of the Court within the guidelines of Rule 23. See Fed. R. Civ. P. 23; Doninger v. Pacific Northwest Bell, Inc., 563 F.2d 1304, 1308 (9th Cir. 1977).

II. FINDINGS OF THE MAGISTRATE JUDGE

The Magistrate Judge found Plaintiffs demonstrated the requirements of Rule 23 were satisfied by the Sub-Minimum Hourly Wage Plus Piece Rate Class and a Tray Washing Class. However, Plaintiffs failed do demonstrate class certification was proper for the Pure Piece Rate Subclass, the Reimbursement Class, and the Pre-Shift Work Class.

A. The Piece Rate Classes

Originally, Plaintiffs moved to certify a class of "all fieldworkers who were paid a piece rate at any time between 11/9/2011 to the present." (Doc. 57 at 1). Plaintiffs noted Sunview had two methods of pay, which included hourly pay plus piece rate and pure piece rate. Id. In their reply to Defendants' opposition, Plaintiffs asserted their were two subclasses to be certified from the piece rate workers, including workers paid a pure piece rate, and those who were paid a sub-hourly minimum hourly wage plus piece rate. (Doc. 165 at 24). The Magistrate Judge noted a class may be divided into subclasses, but each is treated as its own class and "must independently meet Rule 23 certification requirements." (Doc. 192 at 22) (quoting Betts v. Reliable Collection Agency, 659 F.2d 1000, 1005 (9th Cir. 1981)). Therefore, the Magistrate Judge considered whether Plaintiffs established the requirements were satisfied for (1) the "pure piece rate" subclass and (2) the "sub-minimum hourly plus piece rate" subclass.

1. Pure Piece Rate Subclass

The Magistrate Judge observed "a named plaintiff must have a `personal stake in the outcome' and be a member of the class that he or she seeks to represent for the class to be certified." (Doc. 192 at 22) (quoting O'Shea v. Littleton, 414 U.S. 488, 494 (1974)); see also Falcon, 457 U.S. at 156 ("a class representative must be a part of the class and possess the same interest and suffer the same injury as the class members"). In addition, the Magistrate Judge noted the Ninth Circuit's observation that it is "of particular importance . . . that the court be certain each subclass is adequately represented." Id. (quoting Betts, 659 at 1005).

Based upon the evidence presented by the parties, the Magistrate Judge found "it does not appear any of the named plaintiffs worked on a pure piece rate basis." (Doc. 192 at 24). The Magistrate Judge noted Santiago Rojas reported he was paid "on an hourly rate and also on piece rate," but later testified "experience at Sunview was different from other vineyards for which he worked, because sometimes his pay at the other vineyards `was done by piecework.'" Id. at 23 (comparing Rojas Decl. ¶ 5 with Rojas Depo. at 158:18-159:5). The Magistrate Judge concluded it appeared Mr. Rojas was not paid on a pure piece rate at Sunview. In addition, the Magistrate Judge noted Guillermina Perez, Benito Espino, and Catalina Robles asserted they were "paid by Sunview on an hourly basis and also provided a modest per box bonus during the harvest." Id. at 23-24. Though Plaintiff's counsel argued at the hearing that the Court should presume certain named Plaintiffs were paid on a pure piece rate basis because they performed "tying" work, the Magistrate Judge declined to do so because there was "no evidence . . . tying usually is paid on a piece rate basis, let alone invariably paid by this method." Id. at 24, n. 9. Therefore, because Plaintiffs failed to demonstrate they worked on a pure piece rate basis, the Magistrate Judge concluded Plaintiffs lacked standing to represent the pure piece rate subclass. Id.

Although the Magistrate Judge found Plaintiffs lacked standing to represent a pure piece rate subclass, she continued to examine whether the Rule 23(a) factors were satisfied. (Doc. 192 at 24). The Magistrate Judge found Plaintiffs failed to provide "any information regarding the number of workers who worked on a pure piece rate from Sunview during the class period," and "not one putative class member asserts that he or she received pure piece rate pay from Sunview." Id. Because Plaintiffs had a burden to "affirmatively demonstrate . . . that there are in fact sufficiently numerous parties," the Magistrate Judge found Plaintiffs did not satisfy the numerosity requirement. Id. (quoting Dukes, 131 S. Ct at 2551). The typicality requirement was defeated by the failure to show personal injury. Id. at 25. As a result, the Magistrate Judge concluded the Rule 23(a) factors were not satisfied by this subclass. Id.

2. Sub-minimum Hourly Wage Plus Piece Rate Subclass

The Magistrate Judge observed Ms. Perez and Ms. Robles alleged Sunview paid them a sub-minimum hourly wage plus piece rate, and concluded Plaintiffs have standing to represent this subclass. (Doc. 192 at 24). The Magistrate Judge reviewed the evidence provided by the parties, and noted field hand laborers were paid a base hourly rate less than the minimum wage from January 2002 through June 2003. Id. at 25 (citing Gallegos Decl. ¶ 30). Plaintiffs contended the workers should have been paid at "their usual rate of pay" for their state-mandated rest time, which was required to be at least minimum wage. Id. On the other hand, Defendants argued Plaintiff's theory of liability was not an accurate statement of an employer's obligations. Id. The Magistrate Judge noted the requirements of Wage Order 14 are currently under review by the California Supreme Court, and "it is improper to advance a decision on the merits to the class certification stage." Id. at 25-26. Therefore, the Magistrate Judge determined the proper inquiry was not whether Plaintiffs may proceed on this theory of liability, but rather whether Plaintiffs demonstrated the requirements of Rule 23 were satisfied by the "Sub-minimum Hourly Wage Plus Piece Rate" subclass. Id. at 26.

As an initial matter, the Magistrate Judge noted Plaintiffs failed to provide evidence regarding the number of workers who were paid a sub-minimum hourly wage plus piece rate. (Doc. 192 at 26). However, the Magistrate Judge found evidence provided by Defendant that workers from January 2002 to July 2003 were paid on this basis, coupled with Sunview employing approximately 2,000 field workers during the harvest, satisfied the numerosity requirement. Id. The Magistrate Judge determined the commonality requirement was satisfied "[b]ecause a determination of whether the sub-minimum hourly wage as a base rate for piece-rate work in 2002 and 2003 violated California rest break law `will resolve an issue that is central to the validity of each one of the claims in one stroke.'" Id. at 26 (quoting Dukes, 131 S. Ct. at 2551). Likewise, the typicality requirement was satisfied because "Plaintiffs were subjected to the same pay practices as putative class members .. ., the pay particles were not unique to the named plaintiffs, and other class members were subject to the same course of conduct." Id. at 26-27 (quotation marks omitted). Finally, the Magistrate Judge found Plaintiffs and proposed class counsel demonstrated they were adequate representatives for the putative class members. Id. at 27.

B. The Reimbursement Class

Plaintiffs alleged workers "are required to buy their own tools, including picking clippers/scissors, sharpening stones, clipper sheaths, gloves, and goggles . . ." (Doc. 57 at 10). Plaintiffs asserted the "legal framework" for the Reimbursement Class was found in Cal. Labor Code § 2802(a), which provides "[a]n employer shall indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties." Id. at 18. Originally, Plaintiffs sought to incorporate the reimbursement claim in the classes defined as "all harvest season fieldworkers" and "all off-season fieldworkers" employed by Sunview (id. at 2-3), but Plaintiffs narrowed the class definition to "[a]ll non-supervisory fieldworkers employed by Sunview between 11/9/2001 to the present who used scissors or clippers for their work and purchased holsters for those scissors or clippers. (Doc. 165 at 24).

Because the class definition included "all workers who purchased a holster, even if they received compensation for the purchase," the Magistrate Judge found the class definition was overbroad. (Doc. 192 at 28) (citing Wolph v. Acer Am. Corp., 272 F.R.D. 477, 482-83 (N.D. Cal. 2011); Mazur v. eBay, Inc., 247 F.R.D. 562, 567 (N.D. Cal. 2009)). Further, the Magistrate Judge observed Plaintiff's identified the class as the "Reimbursement Class," and opined it was "clear" Plaintiffs "intended to limit class membership to individual who failed to receive reimbursement for the purchase of holsters from Sunview." Id. Noting the Court has the power to cure the defect of a class definition to protect a class, the Magistrate Judge amended the definition to include "all non-supervisory fieldworkers employed by Sunview between 11/9/2001 to the present who used scissors or clippers for their work and purchased holsters for those scissors or clippers without reimbursement from Sunview." Id. at 28-29. With this amended definition in mind, the Magistrate Judge proceeded to analyze whether the class satisfied the prerequisites of Rule 23(a).

The Magistrate Judge found Plaintiffs failed to carry their burden to demonstrate the class was sufficiently numerous to satisfy Rule 23(a). (Doc. 192 at 29). The Magistrate Judge noted, "Plaintiffs have not . . . given an estimate of the number of individuals" who would have been affected by a policy of not reimbursing employees for the purchase of a scissor holster. Id. In addition, the Magistrate Judge observed,

(Doc. 192 at 29) (footnote omitted). The Magistrate Judge declined to presume the number of class members was sufficient to meet the Rule 23 requirements because Plaintiffs did not affirmatively demonstrate the number of workers who purchased a holster without reimbursement. Id. Further, the Magistrate Judge found the claims of the class representatives did not satisfy the commonality or typicality requirements, because Mr. Rojas was the only individual whose testimony supported this claim. Id. Consequently, the Magistrate Judge concluded Rule 23(a) requirements were not satisfied by the Reimbursement Class. (See Doc. 192 at 42, n. 15).

C. The Tray-Washing Classes

Plaintiffs seek to certify classes of "non-supervisory field workers employed by Sunview who took trays home and washed them without compensation (1) during the 2001 and 2002 harvests, and (2) during the harvests of 2003, 2004 and 2005 while Sunview phased in trailers and/or machines to wash trays." (Doc. 192 at 30) (citation omitted). In response, Defendant argued the time spent washing trays was de minimus and precludes certification of a class. (Doc. 101 at 34).

Although the Ninth Circuit opined "[t]here is no precise amount of time that may be denied compensation as de minimus," it set forth a number of factors to determine whether the time expended should be compensated, including "(1) the practical administrative difficulty of recording the time; (2) the aggregate amount of compensable time; and (3) the regularity of the additional work." Lindow v. United States, 738 F.2d 1057, 1062-63 (9th Cir. 1984). Considering these factors, the Magistrate Judge found the aggregate amount of time and the regularity of the additional work weighed against finding the time washing trays was de minimus, though it would have been difficult for Sunview to record the additional time. (Doc. 192 at 31). Further, the Magistrate Judge noted the variance in time the workers spent washing trays, ranging from 1-2 minutes to 90 minutes. Id. (comparing B. Moreno Decl. ¶7 with J. Campos Decl. ¶ 15). Therefore, the Magistrate Judge concluded "Defendant has not shown the damages are de minimus or that Sunview employees should not be compensated for time spent washing trays." Id.

1. 2001-2002 Subclass

The Magistrate Judge found the parties provided evidence demonstrating the numerosity requirement was satisfied, because a number of Plaintiffs' and Defendant's reported they were required to wash trays at home during 2001 and 2002, or before Sunview brought the machines for washing to the field. (Doc. 192 at 32). Further, the Magistrate Judge determined the commonality requirement was satisfied because "both parties present declarations from employees who assert they took trays home and washed them." Id. at 34. In addition, the Magistrate Judge found a common question the class was "whether the time spent workers washing trays at home from 2001 to 2002 was compensable. Id. at 35. The typicality requirement was satisfied, because the named plaintiffs asserted they washed trays at home and "were subject to the same policy that either allowed or required workers to wash trays at home without compensation from 2001 to 2002." Id. Finally, the Magistrate Judge found Plaintiffs satisfied the requirement that the class be "fairly and adequately" represented. Id.

2. 2003-2005 Subclass

The Magistrate Judge noted Plaintiffs assert, without citing evidence, Sunview "testified it is necessary to have four washing machines to handle all class members trays, and testified that there were only two machines in 2003 and fewer than four in 2004 and 2005." (Doc. 192 at 30) (quoting 165 at 25-26). Plaintiffs "admitted at the hearing" a policy was implemented in June 2003 prohibiting workers from taking trays home. Id. at 32. Nonetheless, Plaintiffs argued Defendant "did not have sufficient trailers and tray-washing machines to service all trays for the entire class." Id. (quoting Doc. 165 at 25-26). The Magistrate Judge observed: "[T]he Court cannot infer that two machines were insufficient for washing the trays of all employees, or that the additional machines were required for all trays to be washed. Indeed, another reasonable inference is that the number of machines increased when the number of trays need increased." Id. at 32-33.

The Magistrate Judge observed Plaintiffs and Defendant presented conflicting evidence regarding whether workers took trays home to wash after 2002. For example, "several of Plaintiffs' declarants assert they were not longer required to take trays home to wash once the company began bringing in trailers for washing, although there is conflicting evidence as to when this occurred." (Doc. 192 at 33). Although Plaintiffs presented evidence demonstrating "workers in crews 260, 170, 860, and 150 were required to wash trays at home during the 2003 harvest or later," Plaintiffs also presented evidence from individuals on the same crews who asserted crew members were no longer required to take trays home to wash. Id. Given the conflicting evidence, the Magistrate Judge found Plaintiffs had not demonstrated the number of workers who washed trays were sufficiently numerous to satisfy the requirements of Rule 23(a). Id. at 34. In addition, the Magistrate Judge noted "the conflicts in Plaintiffs' own evidence defeats a finding that the commonality requirement is satisfied." Id. at 34, n. 13 (citing Washington v. Joe's Crab Shack, 271 F.R.D. 629 (N.D. Cal. 2010); Garcia v. Sun Pacific Farming Coop., 2008 U.S. Dist. LEXIS 111969 at *36-37) (E.D. Cal. May 14, 2008), aff'd 359 Fed. App. 724 (9th Cir. Nov. 13, 2009)).

D. The Pre-Shift Work Class

Plaintiffs submitted anecdotal evidence in support of certification of this class because pre-shift, off-the-clock work was not documented in timekeeping and payroll records. (Doc. 195 at 35). Plaintiffs alleged, "Workers brought their trays, hooks and scales from their car, set up tables, gathered boxes, and bags, etc . . . in preparation to begin their workday." (Doc. 165 at 26).

The Magistrate Judge noted Plaintiffs narrowed the class definition "from `harvest season fieldworkers' to `non-supervisory fieldworkers employed by Sunview during harvest.'" (Doc. 192 at 36) (comparing Doc. 57 at 3 with Doc. 165 at 26). Opining it was "unlikely" this change had "a significant impact," the Magistrate Judge found the numerosity requirement was satisfied because Sunview may employ more than 2,000 fieldworkers during a harvest and Defendant did not dispute the requirement was satisfied under the first class definition. Id.

Examining the evidence provided by the parties, the Magistrate Judge discussed the declarations of class representatives, who reported Sunview foremen required the workers to arrive fifteen to thirty minutes prior to the start of the shift to perform uncompensated work. (See Doc. 192 at 36-37). The Magistrate Judge noted "putative class member declarants echo the assertions," and alleged foremen required crews to arrive prior to the official start time to prepare materials. Id. at 37. Further, the Magistrate Judge discussed evidence presented by Defendant's declarants, who reported they arrived at work early by choice and were not required to do so by Sunview foremen. Id. at 37-38. Defendant's declarants asserted they were paid for time spent in "school," and Sunview did not allow workers to perform work prior to start time. Id. Crew bosses and supervisors reported workers were prohibited from working before the official start time, and the Magistrate Judge found this evidence corroborated the testimony of Defendant's putative class members. Id. at 39.

The Magistrate Judge observed, "[T]he evidence provided by Plaintiffs and Defendant regarding pre-shift work appears to be directly in conflict." (Doc. 192 at 39). The Magistrate Judge observed, "Conflicting testimony poses a significant concern for managing a class action." Id. (quoting Garcia, 2008 U.S. Dist. LEXIS 111969). The Magistrate Judge found:

(Doc. 192 at 40). Although Plaintiffs asserted the "key question" was "whether Sunview policies or practices resulted in some employees being `suffered' or `permitted to work' before the start of the shift," the Magistrate Judge found this was not a proper question where the class is comprised of all harvest employees. Id. at 41. Therefore, because of the dissimilarities and conflicting testimony of putative class members, the Magistrate Judge concluded Plaintiffs failed to demonstrate "a common contention . . . capable of classwide resolution" to satisfy the commonality requirement. Id. (quoting Dukes, 131 S. Ct. at 2551).

Further, the Magistrate Judge found the parties' conflicting evidence defeated finding the typicality requirement was satisfied. (Doc. 192 at 41-42) (citing Washington v. Joe's Crab Shack, 271 F.R.D. 628 (N.D. Cal. 2010); Garcia, 2008 U.S. Dist. LEXIS 111969, at *36-37). The Magistrate Judge noted "the harvest workers provide differing accounts of what work was required by Sunview through the practices of its foremen." Id. at 42. Therefore, the Magistrate Judge concluded Plaintiffs did not have "the same or similar injury as many of the putative class members who assert pre-shift, off-the-clock work as neither required nor permitted." Id. (quotation marks omitted).

Finally, because Plaintiffs were unable to meet the requirements of commonality and typicality, the Magistrate Judge determined Plaintiffs would not be proper class representatives. (Doc. 192 at 42) (citing Stearns v. Ticketmaster Corp., 655 F.3d 1013,1027 (9th Cir. 2011)) (affirming a finding that the named plaintiffs "are not proper class representatives" because their claims were "not typical of the class members").

E. Rule 23(b)(3) Certification

Finding Plaintiffs established the Rule 23(a) prerequisites were satisfied by the Sub-Minimum Hourly Wage Plus Piece Rate class and the Tray Washing Class for 2001-2002, the Magistrate Judge then examined whether certification was proper under Rule 23(b). (Doc. 192 at 42-46). Plaintiffs seek certification under Rule 23(b)(3), which requires finding "the questions of law or fact common to class members predominate over any questions affecting only individual members," and "a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." Fed. R. Civ. P. 23(b)(3).

1. Predominance

Defendants argued Plaintiffs could not satisfy the requirements of Rule 23(b)(3) because individual questions predominated over their claims. (Doc. 101 at 24). However, the Magistrate Judge noted certification could not be defeated by damages calculations, and "the only individualized questions identified go to potential damages for the time spent by working trays." Id. at 44. In addition, the Magistrate Judge found Plaintiff's demonstrated commonality regarding Defendant's policies. Id. Therefore, the Magistrate Judge concluded common questions predominated over the action. Id.

2. Superiority

Rule 23(b)(3) sets forth four non-exclusive factors to determine whether a class action is a superior method to adjudicate claims, including (1) the class members' interest in individual litigation, (2) other pending litigation, (3) the desirability of concentrating the litigation in one forum, and (4) difficulties with the management of the class action.

The Magistrate Judge found these factors weighed in favor of class certification. (Doc. 192 at 44-45). First, the Magistrate Judge noted there was "no evidence the putative class members would have an interest individually pursuing or controlling their own cases." Id. Second, the Magistrate Judge observed no other actions involving the parties in this case have been identified. Id. at 45. Third, the Magistrate Judge concluded "determination of the claims in one forum appears desirable" because the claims of putative class members arise within the same forum, and the single action would reduce duplicative litigation and promote judicial economy. Id. (citing Galvan v. KDI Distrib., 2011 U.S. Dist. LEXIS 127602, at*37 (C.D. Cal. Oct. 25, 2011). Finally, the Magistrate Judge concluded "any difficulties in managing the class action appear to be outweighed by the other factors." Id.

Based upon the foregoing, the Magistrate Judge recommended Plaintiff's motion for class certification be granted as to the "Tray Washing Class" for the period of 2001 to 2002 and the "Sub-Minimum Hourly Wage Plus Piece Rate Class," comprised of workers who were paid on an hourly wage less than minimum wage plus piece rate from January 2002 to July 2003. (Doc. 192 at 46).

III. PLAINTIFFS' OBJECTIONS

Plaintiffs object to the Magistrate Judge's findings and recommendations to grant in part and deny in part their motion for class certification, and reassert several arguments made in support of class certification. Plaintiffs "request that the Court review four discrete issues de novo," including (1) certification of the Pure Piece Rate Class, (2) the limitation of the Sub-Minimum Wage Plus Piece Rate Class to employees working from January 2002 to July 2003, (3) certification of the Reimbursement Class, and (4) the time limitation of the Tray Washing Class. (Doc. 196 at 5-6).

A. The Pure Piece Rate Class

Plaintiffs assert the "Pure Piece Rate Class should be subsumed within the Sub-Minimum Wage Plus Piece Rate Class," or in the alternative certified as its own class because "[b]y definition, the Pure Piece rate class in which employees are not paid an hourly rate is a sub-minimum wage class." (Doc. 196 at 5). Plaintiffs contend, "the legal arguments that the Plaintiffs intend to put forth at trial regarding these two classes are wholly identical." Id. at 7. Specifically, Plaintiffs argue: "If individual is paid piece rate for a portion of his compensation and he or she is paid less than minimum wage, that individual will automatically be paid less than minimum wage for the rest break time. This is true in both a pure piece rate analysis and a hybrid analysis." Id. According to Plaintiffs, the Magistrate Judge "inappropriately segregates and eliminates employees who were paid $0 per hour (pure piece rate) and only certifies a class where the hourly rate is between $0.01-$7.99 (sub-minimum wage)." Id. at 8.

Plaintiffs argue, as an alternative to joining the piece rate classes, the Court should certify the Pure Piece Rate Class. (Doc. 192 at 10). Although the Magistrate Judge found no evidence a proposed class representative worked on a pure piece rate basis, Plaintiffs seek to submit evidence "which demonstrates Plaintiffs Espino, Robles, and Montes have standing as they worked pure piece rate." Id. at 5. In addition, Plaintiffs contend, "Defendant's own expert, Dr. Peter Nickerson, has provided testimonial evidence stating that 2,310 class members worked pure piece rate during the class period." Id. at 10 (citing Doc. 144-1 at 12). Plaintiffs seek to support these claims with evidence produced during discovery, including Defendant's timekeeping entries. Id. Therefore, Plaintiffs conclude certification is appropriate for the Pure Piece Rate Class.

B. The Sub-Minimum Hourly Wage Plus Piece Rate Class

Plaintiffs argue the time limitation in the Sub-Minimum Hourly Wage Plus Piece Rate Class is "unwarranted" and the Magistrate Judge "improperly narrow[ed] the class" based upon evidence provided by Defendant, which was used to demonstrate the numerosity requirement was satisfied. (Doc. 196 at 9). Plaintiffs contend they do not have a "burden to establish numerosity for separate and discrete time periods where the legal issues are identical." Id. Plaintiffs argue they "established the requisite numerosity, typicality and commonality issues at any time during the class period because the legal issues are identical." Id. Therefore, Plaintiffs assert the class definition should be amended "to delete any time restrictions." Id.

C. The Reimbursement Class

Plaintiffs assert the Magistrate Judge erred in finding the Reimbursement Class does not satisfy the requirements for certification. First, Plaintiffs contend the Magistrate Judge erred in finding the numerosity requirement was not satisfied, and argue: "just because the word `reimbursement' is absent from the many class member declarations, the fact remains that field workers are not provided with the necessary tools needed to perform their jobs, namely scissor holsters, and are therefore forced to purchase them without reimbursement." (Doc. 196 at 13). According to Plaintiffs, "Defendant readily admits that they do not provide holster[s] nor do they reimburse workers who purchase." Id.

Second, Plaintiffs argue the Magistrate Judge "fail[ed] to give proper deference to Wage Order 14 section 9(B)," which provides tools and equipment shall be provided and maintained by an employer, except for employees whose wages are at least two times the minimum wage. (Doc. 196 at 13). Plaintiffs contend "[w]hether or not the Defendant reimbursed class members for necessary tools they failed to provide is not the relevant inquiry under Wage Order 14(B)." Id. at 13-14. Because Plaintiffs presented declarations of 30 individuals who assert they were not provided April 11, 2012 with holsters, they conclude the requirements of numerosity and commonality were satisfied. Id. at 14.

D. The Tray Washing Classes

Plaintiffs contend the Tray Washing Class should include crews who worked from 2003 to 2005. (Doc. 196 at 15). According to Plaintiffs, because the Magistrate Judge concluded "it cannot be inferred that tray washing machines provided in 2003 were incapable of sufficiently washing all class members' trays," it appears the Magistrate Judge "was looking at the evidence in the light most favorable to Defendant when, in ruling on a class certification motion, any error in deciding said motion should be in favor of the Plaintiff." Id. at 15 (citing Doc. 192 at 32).

In addition, Plaintiffs assert the "class members who no longer took trays home after 2003 would not be included" in the class, and therefore the evidence demonstrating individuals no longer took trays home "does not prove anything." (Doc. 196 at 15). Plaintiffs allege they "reviewed the evidence submitted by both sides" and found as follows:

Id. at 16. Plaintiffs assert, "Now that the concerns of the court to the 2003-2005 tray washing class are better understood, it seems in the interest of justice that the 2003-2005 tray washing class can be redefined in a narrower way to ensure that common issues of fact to indeed predominate." Id. at 16. Therefore, Plaintiffs seek to certify a class for 2005 including "individuals who worked one or more shifts in the harvest season in [c]rews 78, 270, 300, 600 and 610;" a class for the 2004 harvest season including "the 2003 crews, plus [crews] 100, 160 and 550;" and a class for 2003-2005, including "the 2004 and 2005 crews plus crews 110, 150, 240, 250, 260, 380, and 860." Id. at 17.

IV. DEFENDANT'S OBJECTIONS

Defendant objects to the certification of the "Sub-Minimum Hourly Wage Plus Piece Rate" and "Tray Washing" classes. (Doc. 194 at 7). Defendant asserts the Court should conduct a de novo review of the findings and recommendation, and deny certification of the classes "because Plaintiffs failed to meet their burden of proving that all of the required elements of F.R.C.P. 23(a) have been met and that these two classes satisfy the requirements of F.R.C.P. 23(b)(3)." Id.

A. The Sub-Minimum Hourly Wage Plus Piece Rate Class

According to Defendant, the Magistrate Judge erred in concluding she should not weigh the merits of Plaintiffs' claim, and by doing so "failed to identify any valid, legally cognizable theory of liability that would be litigated as to this class." (Doc. 194 at 7-8). Defendant contends the Supreme Court has "mandated" the inquiry into whether the Rule 23 requirements are met "must include considerations of the legal issues underlying a plaintiff's claims." Id. (emphasis omitted) (citing Dukes, 131 S. Ct. at 2551-52. Further, according to Defendant, the merits of the claim "overlap with and are inextricably intertwined with class certification issues such as whether commonality and predominance/superiority exist." Id. at 14.

Defendant argues Wage Order 14 "does not require an employer to provide separately `paid' rest breaks; rather the Wage Order requires only that an employer make `no deduction from wages' for the time spent on a rest break." (Doc. 194 at 8). Further, Defendant asserts, "Wage Order 14 does not require payment of a `regulars rate of pay' for `hours worked'; rather it requires only payment of no less than minimum wage for all hours worked." Id. Therefore, Defendant concludes "the Magistrate Judge apparently certified this class based upon a completely unprecedented and legally incorrect theory of liability [and] her Findings have absolutely no legal support and contrary to law." Id. at 9. Further, Defendant argues certification is "unjustified" for the following reasons:

Id. Believing the "true up" system is in compliance with California law, Defendant re-asserts its argument that "Sunview lawfully paid its fieldworkers wages on a piece rate basis," and "no separate, additional compensation for rest periods is required under the law." Id. at 15-16, 22. In support of Sunview's interpretation of Wage Order 14, Defendant presents evidence regarding the legislative history of the Wage Order, and proposed amendments thereto. Id. at 17-19.

B. The Tray Washing Class

Defendant contends, "The proposed `Tray Washing Class' is unascertainable, cannot meet the commonality or typicality standards set forth in Dukes, and would be utterly unmanageable if it were to go to trial." (Doc. 194 at 24). In addition, Defendant argues the Tray Washing class "deviates significantly from the class proposed by Plaintiffs in their Motion." Id. at 26. Defendant argues it was inappropriate for the Magistrate Judge to consider the definition proposed by Plaintiffs in their reply, because "Defendant was not given the opportunity to address Plaintiffs' new legal theory or the specific ascertain ability issues raised by their ill-defined class." Id. at 27 (citing State of Nev. v. Watkins, 914 F.2d 1545, 1560 (9th Cir. 1990) ("[Parties] cannot raise a new issue for the first time in their reply briefs")). Defendant asserts, "By certifying a class based on a legal theory presented for the first time in a reply brief, the Magistrate Judge condoned Plaintiffs' failure to abide by court rules and due process." Id.

1. Conflicting evidence, commonality and typicality

Defendant asserts there is conflicting anecdotal evidence regarding whether individuals washed trays at home, and the "there is no evidence that will produce a `common answer' [to] satisfy Rule 23(a)(2)." (Doc. 194 at 24, 32). Defendant contends the Magistrate Judge impermissible "`weighed' the number of Plaintiffs' declarations verus Defendant's declarations to conclude that because more declarants attested to taking trays home and washing them, common issues predominated." Id. at 34.

According to Defendant, with regard to commonality, "The Magistrate Judge's reasoning is flawed: even if the answer to the question `is time spent washing trays compensable?' is `yes,' that is not a common answer that will resolve liability on a classwide basis because some fieldworkers never took trays home and/or never washed trays at home." Id. at 32. Defendant argues Sunview did not have a "policy requiring field workers to wash trays," and the evidence demonstrates crew bosses gave workers different instructions. Id. at 33. Further, Defendant contends Plaintiffs are unable to establish typicality, because their "off-the-clock tray washing claims are not typical," noting the Magistrate Judge cited evidence regarding the pre-shift class from putative class members who asserted "pre-shift, off-the-clock work was neither required nor permitted." Id. at 34 (quoting Doc. 192 at 42). Because Defendant contends the commonality requirement is not satisfied, Defendant argues common issues do not predominate and there is no common proof for the class to satisfy Rule 23(b)(3). Id. at 35-36.

2. Ascertainability

Finally, Defendant asserts the "testimony shows a diverse range of experiences among Sunview fieldworkers and illuminates why it will be impossible to ascertain who will be a member of the class defined by the Magistrate Judge." (Doc. 194 at 24). In addition, Defendants assert the class is not manageable because a "mini-trial" would be required to determine the "liability to each putative class member." Id. at 37.

V. DISCUSSION AND ANALYSIS

A district judge may "accept, reject or modify, in whole or in part, the findings and recommendations . . ." 28 U.S.C. § 636(b)(1). If objections to the findings and recommendations are filed, "the court shall make a de novo determination of those portions of the report or specified proposed finding or recommendations to which objection is made. Id. A de novo review requires the court to "consider[] the matter anew, as if no decision had been rendered." Dawson v. Marshall, 561 F.3d 930, 932 (9th Cir. 2009).

A. Presentation of Additional Evidence

As discussed above, Plaintiffs seek to present additional evidence in support of certification of the Pure Piece Rate class. (Doc. 195 at 5, 10). Plaintiffs first requested permission to file these new declarations at the hearing on class certification and the request was denied by the Magistrate Judge, in part due to "concerns about reopening discovery." (Doc. 193, Transcript 63:24-25, 67:4-5). Notably, Local Rule 303 provides, "Rulings by the Magistrate Judges . . . shall be final if no consideration thereof is sought from the Court within fourteen (14) days calculated from the date of service of the ruling on the parties." Because the Magistrate Judge's evidentiary ruling was served orally on the parties at the hearing on February 8, 2012, any request for reconsideration was due by February 22, 2012. See Local Rule 303(b). Plaintiffs did not file a request for reconsideration, or again seek to have the evidence admitted, until after expiration of the fourteen-day deadline. Accordingly, the ruling of the Magistrate Judge is final, and the declarations shall not be admitted as evidence.

Moreover, the Court is not required to consider new evidence Plaintiffs seek to present with their Objections. The Ninth Circuit explained, "[A] district court has discretion, but is not required, to consider evidence presented for the first time in a party's objection to a magistrate judge's recommendation." United States v. Howell, 231 F.3d 615, 621 (9th Cir. 2000). As noted by the Magistrate Judge, the presentation of evidence raises an issue of allowing additional discovery in the matter. Previously, this Court has declined to consider new evidence filed with a party's objections because consideration of new evidence would require the Court to give the opposing party "an opportunity to respond and submit additional evidence." Galik v. Nangalama, 2012 U.S. Dist. LEXIS 14927, at *6 (E.D. Cal. Feb. 7, 2012). The Court observed "allowing new evidence . . . would defeat the reasons that the motion is referred to the Magistrate Judge," and explained:

Id. at *6-7; see also Howell, 231 F.3d at 622 (observing a requirement to consider new evidence not presented to a magistrate judge when considering a party's objections "would effectively nullify the magistrate judge's consideration of the matter and would not help relieve the workload of the district court"). For these reasons, the Court will exercise its discretion and decline to consider Plaintiff's new evidence submitted with their Objections, and adopt the findings of the Magistrate Judge on the issues of standing and certification of the Pure Piece Rate Class.

B. Deciding the Merits at Class Certification

The Magistrate Judge declined to determine whether Plaintiffs may succeed on their theory of liability for alleged violations of Wage Order 14 because "it is improper to advance a decision on the merits to the class certification stage." (Doc. 192 at 25) (quoting Moore v. Hughes Helicopters, Inc., 708 F.2d 475, 480 (9th Cir. 1983). Defendant argues the Magistrate Judge erred by refusing to evaluate the merits of Plaintiffs' claims regarding the alleged violations of Wage Order 14. (Doc. 194 at 7-8). According to Defendant, the Magistrate Judge was required to examine the merits of the action when examining whether the Rule 23 requirements were satisfied by the proposed classes of piece-rate workers who allege receiving pay less than what is required under California law. Id. Defendant contends Plaintiffs cannot succeed on the merits, and there is no "valid, legally cognizable theory" to find Sunview failed to pay proper wages for rest breaks. Id. at 7.

Significantly, the Supreme Court has repeatedly mandated against a determination of the merits at the class certification stage. At the class certification stage, "the question is not whether the plaintiff or plaintiffs have stated a cause of action, but rather whether the requirements of Rule 23 are met." Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78 (1974) (noting the judge improperly conducted a preliminary inquiry into the merits of a suit to shift the costs of notice, rather than determine the propriety of class certification); see also Coopers & Lybrand v. Livesay, 437 U.S. 463, 469 (1978) (while the factual and legal issues are related, when determining class certification, the district court does not resolve the merits). Although "a district court must consider the merits if they overlap with Rule 23(a) requirements," the court does not determine whether the class "could actually prevail on the merits of their claims." Ellis v. Costco Wholesale Corp., 657 F.3d 970, 983 n. 8 (citing Dukes, 131 S. Ct at 2552, n.6) (clarifying Rule 23 does not authorize a preliminary inquiry into the merits for purposes other than determining whether class certification is proper).

Moreover, as observed by the Magistrate Judge, "the standards of law regarding rest breaks are uncertain at this time," and the strictures of Wage Order 14 are under review by the California Supreme Court in Brinker Restaurant Corp. v. Superior Court, 165 Cal.App.4th 25 (2008), petition for review granted October 22, 2008. (Doc. 192 at 25-26, n. 10) (citing Forrand v. Fed. Express Corp., 2011 U.S. App. LEXIS 544, at *3 (9th Cir. Cal. Jan. 5, 2011) ("the resolution of Brinker may dictate what California law requires employers must do to comply with California state labor laws regulating employee meals and rest breaks"). Although Defendant seeks an affirmative finding that its actions were not in contrary to California law, what the law requires is a question pending resolution, and may be a common legal question for the putative class. Based upon the foregoing, it was not an error for the Magistrate Judge to refuse to determine the validity of Plaintiffs' claims at the class certification stage.

C. The Sub-Minimum Hourly Wage Plus Piece Rate Class

1. Exclusion of pure piece-rate workers

As discussed above, as an alternative to certification of the Pure Piece Rate Class, Plaintiffs contend the piece-rate workers should be "subsumed" in the "Sub-Minimum Hourly Wage Plus Piece Rate Class," instead of breaking that group into the two subclasses. (Doc. 196 at 7). In so arguing, Plaintiffs seem to desire to revert to the class definition first proposed in their motion for class certification of a "Piece-Rate Class" comprised of "[a]ll fieldworkers employed by Sunview who were paid a piece rate at any time between 11/9/2001 to the present." (Doc. 57 at 1). With the class so defined, Plaintiffs noted Sunview had "two basic methods of pay," including "a rate per hour that may be combined with a piece rate for units produced" and a piece rate pay "strictly . . . for units produced." Id. Plaintiffs argued both methods of pay violated California law because employees were not compensated at a regular rate of pay for the rest breaks. Id. at 16-17. However, in their reply brief, Plaintiffs distinguished the payment methods and asserted "two variants" of the Piece-Rate Class should be certified, including:

(Doc. 165 at 24). Although the Magistrate Judge recommended certification of the Sub-Minimum Hourly Wage Plus Piece Rate Class, she determined Plaintiffs lacked standing to represent the Pure Piece Rate Class. (Doc 192 at 22-24, 46).

Now aware of the deficiency identified in the Magistrate Judge's recommendations, Plaintiffs change their argument to assert the Court should certify a single class similar to that first proposed, and not differentiate between workers who, allegedly, (1) did not receive a paid rest break and (2) received a rate less than minimum wage for their rest breaks. In support of their argument, Plaintiffs contend the Magistrate Judge "inappropriately segregates and eliminates" the pure piece rate employees from a class (Doc. 196 at 8). Significantly, however, Plaintiffs — not the Magistrate Judge — "segregated" the Sunview employees into two distinct classes. (See Doc 165 at 24). This change in strategy and re-defining of the class definition is not a proper objection to the findings of the Magistrate Judge. Accordingly, Plaintiffs' request to amend the class definition to "subsume" the pure piece rate workers into the Sub-Minimum Hourly Wage Plus Piece Rate Class is denied.

2. Time limitation in the class definition

Plaintiffs contend they established the Rule 23 requirements were satisfied by the class, and the limitation of the class to "workers who were paid an hourly wage less than minimum wage plus piece rate from January 2002 to July 2003 " was improper. (Doc. 196 at 9). This limitation likely was imposed because the evidence presented to the Magistrate Judge demonstrated the only time Sunview paid a base hourly wage below the minimum wage was from January 2002 to July 2003. However, as Plaintiffs note, the requirements for Rule 23 were satisfied by the class, regardless of the time period. Accordingly, the class definition is amended to incorporate all workers from the class period, and shall include "workers who were paid an hourly wage less than minimum wage plus piece rate from any time between 11/9/2001 and the present."

D. The Tray Washing Classes

As an initial matter, Defendant asserts there are due process concerns with the proposed definitions of the Tray Washing Classes. Defendant contends it was inappropriate for the Magistrate Judge to consider the definition proposed by Plaintiffs in their reply, because raising a different class definition deprived Defendant of its right to due process. (Doc. 194 at 27). Significantly, the Court may consider proposals to change a class definition first raised in a plaintiff's reply. See, e.g., Thomas & Thomas Rodmakers, Inc. v. Newport Adhesives & Composites, Inc., 209 F.R.D. 159, 161 (C.D. Cal. 2002) (in response to the defendant's objections that individual factual assessments precluded class certification, to "alleviate[] these concerns," the plaintiffs proposed an amended definition in their reply brief, which was considered by the court in evaluating the Rule 23 requirements); Conant v. McCaffrey, 172 F.R.D. 681, 683 (N.D. Cal. 1997) (finding the plaintiffs "substantially alleviated" the problem resulting from an overly broad class definition by "revising the class definition in their reply brief"). Although Defendant asserts Sunview was denied an "opportunity to address Plaintiffs' new legal theory (Doc. 194 at 27)," Plaintiffs did not raise a new legal theory on reply. Rather, Plaintiffs theory that Defendant suffered or permitted off-the-clock work after the official end time remained the same. Moreover, the Court has the authority to refine a class, and as such there is no reason the Court should not consider the language a plaintiff has offered by way of amendment. See Kamar v. Radio Shack Corp., 254 F.R.D. 387, 391, n.2 (C.D. Cal. 2008). Therefore, the Magistrate Judge's consideration of the narrowed definition proposed in the reply brief was not an error, and the Court will continue to evaluate the Tray Washing Classes as proposed in Plaintiffs' reply brief.

2. Limitation to the 2001-2002 harvest seasons

At the hearing, the Magistrate Judge observed there were conflicts in the testimony from individuals in the same crew as to when they stopped taking trays home to wash because Sunview brought machines to the field to wash the trays. (Doc.193, Transcript 5:23-6:6). As examples, the Magistrate Judge identified named plaintiffs Ms. Robles and Mr. Montes who both worked in crew 150, but "talk[] about different time periods." (Id. at 6:4-6). The Magistrate Judge suggested the conflict may be resolved if the parties "agree when the policy [of prohibiting workers to take trays home to wash] came into effect is when these particular people . . . stopped taking home the trays." (Id. at 7:9-11). In response, Plaintiffs reported they would be "satisfied" if the Magistrate Judge "were to limit the class . . . to the June 2003 date for the policy implementation." (Id. at 7:16-22). Plaintiffs observed it was "undisputed" the policy of not allowing workers to take trays home to wash was implemented in June 2003.2 (Id. at 7:18-22). Therefore, Plaintiffs opined limitation of the class up to the date of policy implementation was "a sufficient way to narrow and resolve that issue." (Id. at 7:22-23).

The Magistrate Judge found evidence the proposed class for the harvests of 2001 and 2002 was sufficiently numerous, but found conflicting evidence regarding what crews were allegedly required to take trays home to wash during the harvests from 2003 to 2005 defeated an inference that the class was sufficiently numerous. (Doc. 192 at 32-34). The Magistrate Judge observed:

(Doc. 192 at 33). Harmonizing this evidence, the Magistrate Judge found it appeared "the practice of taking trays home for washing, after Sunview began using trailers, was not required of all employees or, even, all members of the same crew. Id. at 34.

Now, Plaintiffs seek to have the limitation to the harvests of 2001 and 2002 removed, and propose to certify three classes of workers for the harvests of 2003 through 2005 "which should . . . satisfy numerosity." (Doc. 196 at 16). Plaintiffs contend "it seems in the interests of justice that the 2003-2005 tray washing class can be redefined in a narrower way to ensure that common issues of fact do indeed predominate. Id. However, Plaintiffs construction of the evidence fails to acknowledge conflicting testimony of crew members, which defeated finding all members of the same crew were required to take the trays home. (See Doc. 192 at 33-34). Moreover, the Court's de novo review does not entitle Plaintiffs to a second bite at the apple for certification of newly-defined classes, and the Magistrate Judge did not err in finding Plaintiffs failed to demonstrate the Tray Washing Class for 2003 to 2005 was sufficiently numerous.

3. Rule 23 standards

Defendants object to the certification of the Tray Washing Class for 2001 to 2002, and argues the class is not ascertainable. (Doc. 194 at 24, 37). In response, Plaintiffs contend, "given the policy [to take trays home] applied to all field workers during 2001 and 2002 the class is ascertainable." (Doc. 200 at 21). Because Defendant has admitted there was not a policy in place prohibiting workers from taking trays home during the harvests until 2003, and, in fact, many workers were instructed to do so, the Court finds the class of workers is sufficiently ascertainable.

Further, Defendant contends the Rule 23(a) requirements of commonality and typicality, in addition to the Rule 23(b) requirements, are not satisfied. Id. at 32-36. However, the Magistrate Judge found there is a common question for this class: "whether the time workers spent washing trays at home from 2001 to 2002 was compensable." Although Defendant argues this class cannot be certified, Defendant has not demonstrated this question cannot be resolved for all putative class members "because some fieldworkers never took trays home and/or never washed trays at home" (Doc. 194 at 32), those who never took trays home are not included in the class definition. Further, as the Magistrate Judge found, Plaintiffs were subject to the same practice as putative class members, which either required or permitted them to take trays home to wash. (Doc. 192 at 35). Accordingly, the commonality and typicality requirements are satisfied.

Finally, Defendant argues Plaintiffs failed to satisfy Rule 23(b)(3), because common issues do not predominate and Plaintiffs' claims are not susceptible to common proof. (Doc. 194 at 30). However, the Magistrate Judge addressed these concerns in the findings and recommendations, and the Court's review does not reveal errors in the discussion and analysis. As noted by the Magistrate Judge, there is a issue of whether the tray washing time was compensable, and individualized inquiries into damages cannot defeat certification. (Doc. 192 at 44) (citing Yokoyama v. Midland Nat'l Life Ins. Co., 594 F.3d 1087, 1094 (9th Cir. 2010)). In addition, Plaintiffs' claims are susceptible to the common proof of a policy that suffered or permitted the field workers to perform off-the-clock work. Thus, individual issues do not predominate, because Defendant's liability may be established without individual trials. See Kenny v. Supercuts, Inc., 253 F.R.D. 641, 646 (N.D. Cal. 2008) (finding individual issues predominated, because "[l]iability cannot be established without individual trials for each class member . . ."). Accordingly, the requirements of Rule 23 were satisfied by the Tray Washing Class encompassing workers for the 2001 and 2002 harvest seasons.

E. The Reimbursement Class

Plaintiffs object to the recommendation to not certify the Reimbursement Class. (Doc. 196 at 13-15). According to Plaintiffs, "just because the world `reimbursement' is absent from many class members declarations, the fact remains that field workers are not provided with the tools needed to perform their jobs, namely scissor holsters, and are therefore forced to purchase them without reimbursement." Id. at 13. However, as noted by the Magistrate Judge, Plaintiffs failed to cite evidence that Sunview refused to reimburse employees for the purchase of scissor holsters. (Doc. 192 at 29). Because only one individual asserts Sunview did not reimburse him for the purchase of a scissor holster, Plaintiffs have not presented evidence that the Reimbursement Class is sufficiently numerous. Id. As noted observed Defendant, "Plaintiffs do not contest that five of the six named Plaintiffs/putative class representatives do not even allege a tool holster was necessary or that they purchased one." (Doc. 199 at 26). That one named plaintiff purchased scissor holster without reimbursement belies finding the class representatives claims' satisfy the requirements of commonality and typicality are satisfied. Accordingly, the Court adopts the recommendation that certification of the Reimbursement Class be denied.

VI. CONCLUSION AND ORDER

In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C) and Britt v. Simi Valley United School Dist., 708 F.2d 452, 454 (9th Cir. 1983), this Court has conducted a de novo review of the case. Having carefully reviewed the entire file, the Court finds that the Magistrate Judge's findings and recommendation are supported by the record and by proper analysis.

Accordingly, IT IS HEREBY ORDERED the Findings and Recommendations filed February 9, 2012 are ADOPTED as follows:

IT IS SO ORDERED.