words amounting controversy which is contained in cafes removal statute twenty eight u s c thirteen thirty two d and unlike the court in your bar a which laid out the standards for  ago this court has the benefit of layers and layers and layers of evidence that more than five million dollars in this is in controversy what is what is in controversy me what is in controversy is what is its state it's what's being litigated and this court knows what's being litigated for many many reasons it's in the complaint years and years of liability is being tested for the entire class of california nonexempt employees who are employed by pm realty what's at stake how how many work weeks are at stake how many million rest periods will be tested is in the record with you you make a couple of arguments and in this case one is relying only on the language of the complaint if it can't be that at all relevant times then that broadens the class to this huge number i think you better argument is an evidentiary showing of what was at stake the plaintiffs in this case class counsel has shown his hand he testified at deposition that he was rarely if ever given a rest period he testified in deposition but he generally was not given a meal period  class certification he submitted declarations from three class members who said they never got rest periods and most importantly in discovery he asked for all of the time cards of all of the class members for every pay period for every work week so i would note that what some district courts including this district court relied on is the violation rate the word violation weight is nowhere in thirteen thirty suggested and another one well we'll just take two but two violations per week per class member yes we did all correct we saw for two on if you were how let's take the two which i guess you characterize did that come from what we did is we looked at the complaint and the complaint said that often but it said that systematically pm realty denied people respirators when the city has they have policies yes they never really out what those i still can't figure out what those policies are well if this case was attacked on remand at the plea right after removal we might have this problem which is what i think the court faced in your bar that you're not quite sure what that means it ha can't apply that to every class it's not there's not a proper basis to apply that to every class member because he pointed out two things as i understand what he did one of the potential class members here in compass both the field and the field workers technicians and engineers and  onsite administrative staff yes overwhelmed and it was sort of acknowledged although there were i don't believe there was us any stipulation to the to that effect to this effect but th types were really not part of the class if you look at the class definition because what the class definition talks about was the way in which they arranged for the taking of a break they didn't provide enough backup but that doesn't fit with the administrative staff well that is it is true that the administrative staff is different from the field staff again we don't have to guess about what's in controversy because a class sort of occasion at the very end of the story mr mahoney did not seek to limit the class to exclude the administrative personnel his motion for class sort of occasion seeks to include well but yet that's because he has a number of claims that wouldn't possibly encompass them well i think but whatever you know have he could have moved for some classes he could have never there but he did so i don't know why not i mean what it's pretty clear that his claims possibly could encompass because he has this claim about they didn't keep adequate records that would encompass everybody what the court does know is that the judge really would have granted the motion for certification my client would be required to defend every claim he didn't seek to certify some claims that's just guesswork while it is true that mr branch's claims that he in the putative class members were often forced to forgo a meal period and or work during their meal period this does not mean that such bio lesions occurred in each and every shift of each and every class member it says nothing of the frequency that would deprive class members of their entitled meal or rest periods what he's basically doing is he's asking us to either confess liability with the ninth circuit case to say we do not have to do or to be fortune say even though there were strict limits prior to class sort of occasion on the kind of discovery you can do with respect to absent class members and that is why the only evidence of absent class members comes from the point of who voluntarily produced it that if you can tell us what the violation rate is for absent class members you can stay in federal court i think that is not the way class certification discovery is structured it's certainly not what kaffir requires and i frankly think that it is calculation to include as judge pies pointed out office workers so to what extent is the stipulation in the record that office workers are situated differently matter in terms of the analysis well the office workers i believe the reason why plaintiffs included the office workers in the punitive class and in the proposed certify classes because they are subject to the same meal and rest policy rules as the people in the field they may not be subject to the same field conditions there is no evidence that those office workers were not relieved of their duty in fact they were relieved of their duty all the office workers for the most part are now working at the company who succeeded p and so think about what that means let's look at over time which is an easier example you are in over time after forty hours a week potentially you can work up to one hundred sixty nine hours a week but what you're not allowed to do is you're not allowed to say well we need thirty hours of overtime to get us over five million so we have thirty that's just pulling numbers out of thin air nowhere in this record from the day we removed the case to today have we pull numbers out of thin air at the numbers or we're we're relying on our all uncontrover take issue with the wage rate what we did was we took the wage rate of the field workers which is around twenty five dollars there is a range and we averaged it and multiply that across the class i think to do an  of taking each individual's wage rate and multiplying it against each penalty provision the hundred dollars into twenty six the thirty days pay in two or three i believe is a level of precision that is not required but you can really hear where when is well be very precise to me as a matter of law in california the waiting time is paid at the last rate of pay and typically workers make more money as they progress through the year so the average rate is probably an underestimate there is no evidence in the record and we produced an awful lot of records in this case that the twenty five dollars does not reasonably approximate what most of the workers were working it was within i believe a dollar of what the plaintiff mr branch a conservative so shall we say the average relates only to the meals and breaks i believe what you would do if you were actually multiplying this out would look at their weight at the time that the penalty was missed and that should be for someone who worked the entirety of a class period that's likely to approximate the average they certainly haven't presented any evidence yet the only reason why i use that is because that's the substitute for missing a break  to our yes and again what we did was we averaged all of the employees wage rates together so it's not like we didn't account for the few workers who were on ten dollars an hour they'd drop down the average the figure one  is that only field people there is that the combination of the field and on site it's a combination of the two it's mostly people mostly what it's mostly feel guilty and again that they're constantly getting calls while they were taking a break more often than not i did and i think that would be the kind of speculation that is not required and i'd like to reserve my two minutes ok office workers were part of this class at mr branch just deposition the party stipulated the office workers so that did they actually say i stipulate that or that i agree there are little different plaintiff and defense counsel we stipulated that the similarity between the the field workers and the office workers were so dissimilar that it made no sense to include them in the class so for purposes of not this in a deposition yes your honor is deposition part of the record it is your honor and so for purposes of the camp's deposition direct your honor for purposes of the calculations and this is why it's very important at this stage to remove all the fence utilize a number of one hundred eighty four employees and came up with their spreadsheet in terms of damages at the deposition the parties stipulate to remove the office workers the fender still used do you have the record accurate right in front of you that you can read to us what the terms and conditions  party said that the the office workers were not going to be part of the motion of class certification at the removal defendants you utilize a number of one hundred eighty four class members which consumed the entirety of their employees after the stipulation defendant still utilized one hundred eighty four employees for purposes of the damage calculation with their petition to appeal if you can i get back to the deposition for a moment because i have that record and if i look at the right page it's mr mahoney says and i think for purposes of this case we would even stipulate that the people in the office at torrance probably is different from those outside is that the simulation you're referring to correct  sept office workers corrector on it in the motion itself it didn't say except however once again the parties did stipulate to it so while it didn't carve out specifically in the in the motion itself the understanding between the parties was exactly that that these people would not be included so let's say that we we agree that an estimate of two meals and two rest break violations per week or work or was reasonably supported by the time claims those seem to me to be factual issues that are more appropriately sorted out at the district court level to see whether if you exclude certain people be not then falls below the katha threshold or whether you have to also look at the now bring forth new numbers also and they call them post removal numbers the reality is these numbers are based on nothing but pure speculation how do you now come up with more damages when you have this there's no more evidence introduced to show that well we did this analysis and therefore it's just here's some more numbers and it's even higher now there's and that adequately supported whether that was reasonable based on the evidence presented in the acting director on or and i think judge rio had it correct and as the dark court said the the district court that the parties put forth the evidence and the district court to make the determination on where the the  outlook that the evidence he cited to plaintiff's testimony and said exactly what this court has already said you cannot simply look at mr mr branches testimony and now say that every class member  so so that's even more problematic for defendants calculation will they all sit well they all seem to say if i'm not mistaken that with least with respect to their rest break that they rarely if ever going to rest break right well your hon and then for a meal breaks they would frequently take calls during meal breaks and rarely if ever get rest breaks and these violations are stemming out of policies in handbook that are ply uniformly consistently so if you take all of that together to violations meals and rest per week doesn't seem reasonable you're out i'll just say this even if we take these violation raise the numbers are flawed  that mr branch testified to making twenty five dollars an hour mr branch testified that he made he started at seventeen dollars an hour and at the end of his his employment he was at seventeen dollars and sixty nine cents an hour their numbers are inflated if we take their numbers as is upon remove all at five million dollars five plus million all we have to do is a mathematical calculation there you take seventeen but they relied on twenty five take a third off because they've inflated the numbers mr brass testify not only did he make seventeen dollars upon starting that he ended at seventeen dollars and sixty ni and to his knowledge field technicians all were paid starting at seventeen dollars mr mahoney how do we deal with all that when the district court made no findings to help us on that and the district corps factual we possibly deal with that when there's no factual findings beyond the i think this court said earlier judge reale specifically stated that your numbers are flawed on these two issues therefore you do not meet the requirement if they cannot meet the rate if their numbers are a flawed on their meal or rest break lanes and they could not reach the kafir requirement there is no need for the district court to continue on  forty five hours a week and did they den went to the actual store managers and got testimony in declarations saying they did work these hours defendants have put forth no evidence from any field technician saying yes i often did this i work this many days i work this much overtime there's nothing in the record by fenice what they've submitted is a declaration from an h r person who says there's almost twenty thousand work weeks and then they use this inflated average hourly rate the courts looked at all this and the court made a determination that you didn't hit the coffin number because these two things were flawed dart says that you know the district court has to make that determination there's no need to go back to do a factional now assess because i would i would presume would be the same thing the court will go on to say well what the other claims you did one hundred percent violation rate you cannot do that this court has said you cannot just jazz we rarely get interrupted uninterrupted meal breaks we rarely that was barsamian in the air all three of them said they rarely got  that the court looked at it was because the civically the court said you cannot simply use mr branch's testimony and apply it to the core class members unilaterally with zen i mean are you suggest class action in which the purpose for the class is to be able act more efficiently collectively are you saying that a deposition happy taken of each class defendants are in control of all of this information sort of like the court question counselor earlier well how did you come to this average did you take the average of the office workers versus the field workers no we didn't  honor but this is the type of information that is not in their hands it's in your hands because this is testimonial type evidence and they're your clients they're the ones who can who can testify there's no document you can steps to can establish that rarely if ever did they get the rest right user well that's not necessarily correct or are there their document is it was there was that in other cases i've done you have meal period is why is even more important that as i was saying the finance have every record we need which would be for instance let's just take the pay rate i mean this is this is the this is really the basis for the damages what is the average hourly rate if they can't get that right then how do we trust anything that stems from it the court just asked well how did you get to this rate well you know your honor let me tell you the problem having you and i having more discussion about the facts and seems like this record and well your honor i would disagree to the extent that i believe the court looked at the testimony and i mean the deposition was submitted the declarations were submitted and the the field technicians it would not apply to the office workers but let's take that your honor the fence unilaterally used a let's call it one hundred percent violation rate every day for the drive time  mr branch testified that there were days that he would go home early so you can so once again the finish you know laterally decided we're going to set up an arbitrary average hourly rate and we're just going to across the board  say this happened to everybody at the same or so they understand what was to happen here so they look at the theory of your case of the claims that you're raising and really you know sure looks like they're seeking damages over five million so we have to put forward some evidence your honor i think would defend it and there's a judge where he said you can expect him to to pose every class member i don't disagree but this court said a removing defendant cannot assume one hundred percent violation when a plaintiff alleges definit had a pattern and practice of committing wage and hour violation zubar yes this is an of our you know i think that's why we're talking about their more conservative numbers rather than i think it was eleven million if you if you take the complaint and apply it across the board but if even if we did then talk about the more conservative number your honor that was only were respected miller aspirate i mean let's take the other violations or the other claims once again it assumes that everybody who was that picked up the contract yes correct now their argument in their in their opposition to class or it is we don't know these people anything because they were offered jobs so on one hand you say well own anything because they were offered jobs but you use sixty days as the the amount in controversy for that claim i thought the conservative numbers applied all the claims  conservative number a per week what is that based on i don't know if it's two i don't know if is five i don't know if it's three i don't know as well as one where it's it's they give you a range in the valar if it's two it's nine thousand dollars it was five is two million correct so if we know i'm not so if we take it on the low end eight nine hundred thousand for each once again i just show that the problem with the war not claim that people left the employment to take another job so not everybody fits the sixty days of wages so the one the million eighty nine dollars cannot be factually based on anything other than we took eighty four people because we have records for them we use a violation rate of twenty five dollars and we multiply that out by sixty days i mean this is the problem like they are required to do some sort of analysis they have these records they have the records of who left why they left when they l instead once again we use you know arbitrary numbers we let you go overtime thank you thank you very much interesting ok you have a couple minutes for rebuttal but i your honor in this last one act extreme shows the folly of plaintiff approach of look in the camera so my client can see it on you tube we assert they are owed nothing we assert that they're worn out a claim should be granted summary judgment in our favor that does not mean that nothing is in controversy that is the employees versus the field police who are not part of the class nevertheless is most one a for we did not stipulate to that what we stipulated to is that there is a difference between the two and i read the record in its entirety and all this court needs to do is go to his class certification motion where he says i'm seeking to certify a class of all hundred eighty four employees so despite the acknowledgment which i continue to make here that there may be differing circumstances for the administrative workers they're not going to interface with the policy in the same way knowing that taking my client for our night's deposition for five plus hours before to certify all of them and i will close on one thing that mr mahoney certainly cannot do he cannot  size of this class to get the case remanded to state court what is in controversy is judge at remove ability he can throw out all of the administrative workers he could throw out everybody but ten people and it would make this case any less of a federal case it's judge at remove ability at the time of removal there are one hundred eighty four people in this class and controversy at the time of removal he sought sixty days pay under the warning act uncontroverted at the time of removal he said the people in his  i would agree with the court that factual determinations are reviewed for clearly erroneous notice but the ultimate finding of jurisdiction is a legal determination that is reviewed to know when i think we have to say that his determination is clearly break i mean there's no evidence here of someone who said i was always given my brakes there's no evidence in here that someone said i usually had my meals in his truck murphy pointed out that evidence is in the province of the point of ms i'm sure joe drill would like evidence from all hundred eighty four class members but under the federal rules of civil procedure i only get to take ten depositions so that's not possible and i can't talk to his clients so that this is this is putting the bar in a place that you simply won't be able to remove cases and that's what the senate decide we appreciate your arguments in this case very interesting and i will submit it at this time