Faulkinbury v. Boyd & Assoc. 6/24/10 CA4/3

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: G041702

Case Date: 10/14/2010

Preview:Filed 6/24/10

CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE

JOSIE FAULKINBURY et al., Plaintiffs and Appellants, v. BOYD & ASSOCIATES, INC., Defendant and Respondent. G041702 (Super. Ct. No. 05CC00107) OPINION

Appeal from an order of the Superior Court of Orange County, Gail Andrea Andler, Judge. Affirmed in part and reversed in part. Appellants request for judicial notice. Granted. Respondents request for judicial notice. Granted in part and denied in part. Class Action Litigation Group, Katherine J. Odenbreit, Rene L. Barge; Law Offices of Lawrence A. Witsoe, Lawrence A. Witsoe, Dean P. Schroeter; White & Roseman and Leslie Roseman for Plaintiffs and Appellants. Nordman Cormany Hair & Compton, Jonathan Fraser Light, Meghan B. Clark, Curtis A. Graham and Gannon Elizabeth Johnson for Defendant and Respondent. * * *

INTRODUCTION Plaintiffs Josie Faulkinbury and William Levene (together, Plaintiffs), on behalf of themselves and all others similarly situated, appeal from the trial courts order denying their motion for class certification. They sought to represent and certify a class of about 4,000 current and former employees of defendant Boyd & Associates, Inc. (Boyd), which provides security guard services throughout Southern California. Plaintiffs and the putative class members work or worked for Boyd as security guards. They assert Boyd denied the putative class members off-duty meal breaks and off-duty rest breaks, and failed to include certain reimbursements and an annual bonus payment in calculating the employees hourly rate of overtime pay. Plaintiffs proposed three subclasses, which we will refer to as the Meal Break Class, the Rest Break Class, and the Overtime Class. We affirm the order denying the motion for class certification as to the Meal Break Class and the Rest Break Class because, we conclude, the trial court did not abuse its discretion in finding common issues of law and fact did not predominate over individual issues. We reverse the order denying the motion for class certification as to the Overtime Class and remand with directions to certify that class.

BACKGROUND Boyd is a private security guard company providing security services throughout Southern California. Boyds clients include gated residential communities, hospitals, commercial buildings, and retail stores. Plaintiffs brought this action on behalf of themselves and about 4,000 current and former employees of Boyd, who had been employed in the position of security guard, post commander, or post supervisor, or a similar position at any time during the class period, defined as the period beginning four years preceding the filing of the original complaint and ending on the date a class is certified. The third amended 2

complaint, the operative pleading, asserted various causes of action under the Labor Code and Business and Professions Code section 17200 et seq. for alleged failure to pay wages, failure to pay nondiscretionary bonus wages, and failure to provide meal and rest periods. Faulkinbury was employed by Boyd as a security guard from October 2003 to November 2004, and Levene was employed by Boyd as a security guard from January 2003 to February 2005. In declarations, Plaintiffs asserted that, when hired by Boyd, each had to sign an agreement to take on-duty meal periods and that, while employed by Boyd, neither ever took an uninterrupted, off-duty meal break. They also asserted that, while employed by Boyd, they were instructed not to leave their posts and never took any off-duty rest breaks. Plaintiffs declared their hourly rate of pay was reduced by the amount received as a gasoline allowance and as a uniform maintenance allowance. Faulkinbury declared her stated hourly rate was $11.00, which was reduced to $10.30 for the gasoline and uniform maintenance allowances. Levene similarly declared his stated hourly rate was $9.00, which was reduced to $8.30 for the gasoline and uniform maintenance allowances. He declared that his overtime hourly rate was based on the reduced rate of $8.30 per hour.

CLASS CERTIFICATION MOTIONS Plaintiffs first moved for class certification in October 2008. Based on the third amended complaint, the first motion for class certification proposed a broadly defined class of "all of these current and former security guards employed by Boyd at any time during a four-year statute of limitations period consisting of approximately 4,000 putative class members" and proposed eight subclasses.1
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The eight subclasses were: (1) the "On-Duty Meal Break Class," (2) the "Overtime: Bonus Wages Class," (3) the "Overtime: Uniform/Mileage Reimbursement Class," (4) the "Unpaid Bonus Wage Class," (5) the "Itemized Wage Statement Class," (6) the 3

The trial court issued a tentative ruling denying the first motion for class certification "without prejudice." The tentative ruling was lengthy and recited two grounds for denying class certification: (1) inadequacy of the proposed class representatives and (2) lack of typicality of the class representatives claims. The tentative ruling identified problems in Plaintiffs evidence and described additional evidence needed to address the courts concerns. At the conclusion of the hearing on the first motion for class certification, the court stated: "At this time the court denies the motion for certification. [

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