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United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

RODERICK MAGADIA,

Plaintiff,

v.

WAL-MART ASSOCIATES, INC., et al.,

Defendants.

Case No. 17-CV-00062-LHK 

ORDER GRANTING MOTION FOR 

CLASS CERTIFICATION

Re: Dkt. No. 60

Plaintiff Roderick Magadia (“Plaintiff”) brings the instant putative class action against 

Defendants Wal-Mart Stores, Inc. and Wal-Mart Associates, Inc. (collectively, “Wal-Mart”) for 

violations of the California Labor Code. Before the Court is Plaintiff’s motion for class 

certification. The Court finds this matter appropriate for determination without oral argument and 

VACATES the motion hearing set for January 11, 2017. Civil L. R. 7-1(b). Having considered 

the submissions of the parties, the relevant law, and the record in this case, the Court GRANTS 

Plaintiff’s motion for class certification.

I. BACKGROUND

A. Factual Background

1. Parties
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Wal-Mart is “a national retailer with locations throughout the United States.” ECF No. 1-

1, Ex. A (“Compl.”) ¶ 3. Plaintiff is a former employee of Wal-Mart. Specifically, Plaintiff 

worked “as a non-exempt employee at [Wal-Mart’s] store in San Jose, California” from June 17, 

2008 to September 16, 2016. Id. ¶ 4.

2. Plaintiff’s Claims

Plaintiff identifies three “class-wide policies and practices engaged in by” Wal-Mart that 

allegedly violate California law: (1) Wal-Mart’s alleged failure to pay adequate meal period 

premiums to its employees; (2) Wal-Mart’s “failure to specify the hourly rates and number of 

hours worked for [] overtime adjustment wages”; and (3) Wal-Mart’s failure to “list the pay period 

start and end dates” on wage statements issued to terminated employees. ECF No. 60 (“Mot.”) at 

10–11.

a. Meal Period Premium Claim

Plaintiff states that, as required by California law, Wal-Mart has a policy of providing nonexempt California employees “30-minute off-duty meal periods . . . within the first five hours of 

work.” Mot. at 18; see ECF No. 60-1, Ex. B (“Stokes Dep.”) at 35. However, Plaintiff alleges 

that at times, he was required to take late lunches that were not within the first five hours of his 

workday, in violation of California law. See ECF No. 77-1, Ex. 1 (“Pl. Dep.”) at 44–45. When an 

employer fails to provide a meal period to an employee “in accordance with [California] law”—

for instance, by improperly delaying a meal period like in Plaintiff’s case—the employer must pay 

the employee “one additional hour of pay at the employee’s regular rate of compensation”—

otherwise known as a meal period premium. Cal. Lab. Code § 226.7(c). Plaintiff asserts that 

although Wal-Mart has a policy of paying meal period premiums whenever it fails to provide meal 

periods that comply with California law, Wal-Mart’s policy violates California Labor Code § 

226.7(c) because its meal period premiums are inadequate. 

Specifically, Plaintiff points to § 226.7(c)’s requirement that an employee’s meal period 

premium be equal to “one additional hour of pay at the employee’s regular rate of compensation.” 

Plaintiff argues that under California law, an employee’s “regular rate of compensation” must 
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include any non-discretionary remuneration that the employee earned “during the same pay 

period.” Mot. at 18–19. In other words, under Plaintiff’s legal theory, an employee’s meal period 

premium is not always equivalent to one additional hour of pay at the employee’s base rate of pay. 

Instead, if an employer fails to provide its employee a meal period that complies with California 

law, and if that employee earns any non-discretionary remuneration during the same pay period, 

then the employee is entitled to one additional hour of pay at a rate that factors in both the 

employee’s base rate of pay and the employee’s non-discretionary remuneration. 

Thus, Plaintiff asserts that Wal-Mart’s meal period premium policy violates California 

Labor Code § 226.7(c) because Wal-Mart uniformly and invariably pays meal period premiums 

according to its employees’ base rates of pay, “regardless of whether the employee has also earned 

non-discretionary incentive pay during the same pay period.” Mot. at 18–19. Further, Plaintiff 

alleges that because Plaintiff received meal period premiums at his base rate of pay “during pay 

periods in which [he] earned non-discretionary remuneration,” Plaintiff was affected by WalMart’s defective meal period premium policy. Compl. ¶ 25. 

For its part, Wal-Mart does not dispute that it has a policy of calculating meal period 

premiums for its California employees without regard to any non-discretionary remuneration 

earned by those employees. Instead, for purposes of opposing class certification, Wal-Mart 

submits evidence relevant to the issue of whether questions of law or fact common to all class 

members predominate over questions affecting only individual class members. Specifically, WalMart submits evidence that not all employees who received meal period premiums were actually 

deprived of compliant meal periods. According to Todd Stokes, Wal-Mart’s “Regional HR 

Director,” Wal-Mart’s policy “provides that if time records indicate an associate may not have 

received a full meal period on time and without interruption,” Wal-Mart will pay the associate a 

meal period premium “without researching whether the records are accurate (i.e., an associate 

failed to enter punches) or the payment is required by California law, and without regard as to why 

the meal period was skipped, short, interrupted, or late (including, for instance, where the 

associate did so voluntarily.” ECF No. 78 (“Stokes Decl.”) ¶ 5. Further, although Wal-Mart 
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generates a “daily Meal Exception Report at each store,” that Report indicates a “meal 

exception”—in other words, a skipped, delayed, or shortened meal period—according only to an 

“associate’s punches in and out of the time clock.” Id. ¶ 6. Thus, Wal-Mart’s Meal Exception 

Reports will reflect a meal exception “irrespective of whether the associate voluntarily skipped, 

shortened, or took a late meal period, or whether the associate received a full meal period on time 

and without interruption but did not clock-in or clock-out for whatever reason.” Id. Further, as a 

matter of Wal-Mart policy, any associate who appears on a Meal Exception Report will receive a 

meal period premium “regardless of why they are on the report.” Id. 

However, at his deposition, Mr. Stokes also testified that Wal-Mart investigates every 

reported “meal exception” in order to determine and document why the exception happened. 

Stokes Dep. at 44–45, 47–48. According to Mr. Stokes, the purpose of these investigations is not 

to determine which employees should receive meal premium payments. Instead, these 

investigations are conducted for other remedial purposes, such as to determine whether any WalMart managers should be subject to disciplinary action for failing to provide meal periods to 

employees in accordance with California law, or to determine whether an employee who forgot to 

“punch in” his meal period or who voluntarily missed, delayed, or shortened his meal period needs 

to be “coached” to comply with Wal-Mart’s policies. Id. at 47; see Stokes Decl. ¶ 7.

b. Overtime Wage Statement Claim

Plaintiff states that when a non-exempt California employee works overtime during a 

given pay period and earns “non-discretionary remuneration in the same pay period,” Wal-Mart’s 

policy is to pay that employee an “additional overtime wage” called “OVERTIME/INCT.” Mot. 

at 19; see Stokes Dep. at 66–68, 69, 76–77. The purpose of this policy is to ensure that Wal-Mart 

is in compliance with California Labor Code § 510(a), which requires employers to factor in an 

employee’s non-discretionary remuneration when calculating that employee’s overtime pay. See 

Marin v. Costco Wholesale Corp., 169 Cal. App. 4th 804, 807 (2008) (“Because the 

nondiscretionary bonus at issue here increases the regular rate of pay, employees who worked 

overtime during the bonus period and were paid at 1.5 times their hourly rate (unaugmented by the 
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bonus) during that time are entitled to additional overtime pay once the bonus is awarded.”). 

However, Plaintiff alleges that “[a]lthough the ‘OVERTIME/INCT’ is an overtime 

payment, [Wal-Mart] lists it as a lump sum on the employee’s check without listing the applicable 

hourly rates and numbers of hours worked for the overtime pay.” Mot. at 19; see Compl. ¶ 31 

(“[Wal-Mart] fail[s] to identify the correct rates of pay and number of hours worked, including for 

the ‘OVERTIME/INCT,’ item of pay, which is an overtime wage payment.”). Plaintiff asserts 

that Wal-Mart’s policy of listing “OVERTIME/INCT” as a lump sum on wage statements without 

specifying the hourly rates and numbers of hours worked for “OVERTIME/INCT” violates 

California Labor Code § 226(a)(9), which requires employers to furnish “semimonthly or at the 

time of each payment of wages” an “accurate itemized statement” that shows, inter alia, “all 

applicable hourly rates in effect during the pay period and the corresponding number of hours 

worked at each hourly rate by the employee.

c. Final Wage Statement Claim

Plaintiff alleges that when his employment with Wal-Mart was terminated, instead of 

providing Plaintiff “an itemized wage statement with [his] last pay check[],” Wal-Mart provided 

only a “Statement of Final Pay” that did not include the start and end dates of Plaintiff’s final pay 

period. Compl. ¶ 31. According to Mr. Stokes’ deposition testimony, as a matter of Wal-Mart’s 

policy and practice, none of Wal-Mart’s statements of final pay from December 2015 onwards 

included pay period start or end dates. Stokes Dep. at 89–91. Plaintiff asserts that Wal-Mart’s 

policy of not listing pay period start and end dates on statements of final pay violates California 

Labor Code § 226(a)(6), which requires employers to furnish “semimonthly or at the time of each 

payment of wages” an “accurate itemized statement” that shows, inter alia, “the inclusive dates of 

the period for which the employee is paid.”

B. Procedural History

Plaintiff filed this putative class action in the Superior Court for the County of Santa Clara 

on December 2, 2016. See Compl. Plaintiff’s complaint alleges causes of action for (1) violation 

of California Labor Code §§ 226.7 and 512; (2) violation of California Labor Code § 226(a); (3) 
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violation of the Private Attorney Generals Act, Cal. Lab. Code § 2698, et seq.; and (4) violation of 

California’s Unfair Competition Law, Cal. Bus. & Prof. Code § 17200, et seq. Id. On January 5, 

2017, Wal-Mart removed the action to this Court alleging jurisdiction under the Class Action 

Fairness Act, 28 U.S.C. § 1332(d)(2). See ECF No. 1. Then, on February 2, 2017, Wal-Mart filed 

an answer to Plaintiff’s complaint. ECF No. 19. 

On May 31, 2017, this Court “order[ed] the parties to prepare a neutral notice for putative 

class members to opt-out of having their names and contact information provided to Plaintiff’s 

counsel. A third party administrator shall distribute the notice and accept opt-outs from the 

putative class at Plaintiff’s expense.” ECF No. 27, at 1. Then, on June 5, 2017, Plaintiff filed an 

“Administrative Motion Regarding Belaire-West Opt-Out Notice Procedure” requesting this Court 

to (1) order “that the putative class members be given 30 days to opt-out of having their contact 

information provided to Plaintiff’s counsel”; and (2) order Wal-Mart to “provide all known email 

addresses and cell phones to the administrator in connection with the opt-out process and upon the 

expiration of the opt-out period, that this information be provided to Plaintiff’s counsel.” ECF No. 

31 at 3. On June 21, 2017, this Court granted Plaintiff’s first request and denied Plaintiff’s second 

request. ECF No. 33. Accordingly, the Court ordered Wal-Mart to “provide the third-party 

administrator the known mailing addresses and last known home telephone numbers of all putative 

class members as defined by Plaintiff.” Id. at 3. The Court also ordered the notices to be “mailed 

out within ten (10) days of the third-party administrator’s receipt of the putative class members’ 

mailing addresses and last known home phone numbers,” and noted that putative class members 

“will have 30 calendar days from the date of mailing” of the notices to opt-out. Id. at 4. 

On October 9, 2017, Plaintiff filed a motion for class certification, in addition to a sealing 

motion. See Mot; ECF No. 59. Plaintiff’s motion for class certification seeks to certify the 

following proposed classes:

 Meal Period Regular Rate Class: All current and former California non-exempt 

retail store employees of [Wal-Mart] who received non-discretionary remuneration, 

including “MYSHARE INCT,” and was paid any meal period premium payments 
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in the same period that the non-discretionary remuneration was earned, at any time 

between December 2, 2012, through the present.

 OVERTIME/INCT Wage Statement Class: All current and former California 

non-exempt employees of [Wal-Mart] who received “OVERTIME/INCT,” at any 

time between December 2, 2015, through the present.

 Final Wage Statement Class: All former non-exempt employees who worked for 

[Wal-Mart] in the State of California and whose employment terminated (whether 

voluntarily or involuntarily) at any time from December 2, 2015 to the present.

These three classes correspond to the three “class-wide policies and practices engaged in by” WalMart that Plaintiff seeks to challenge, as discussed above.

On October 26, 2017, the Court denied Plaintiff’s sealing motion. ECF No. 65. 

On November 20, 2017, Wal-Mart filed an opposition to Plaintiff’s motion for class 

certification. See ECF No. 75 (“Opp.”). On December 18, 2017, Plaintiff filed a reply. See ECF 

No. 79 (“Reply”).

II. LEGAL STANDARD

Class actions are governed by Rule 23 of the Federal Rules of Civil Procedure. Rule 23 

does not set forth a mere pleading standard. To obtain class certification, Plaintiffs bear the 

burden of showing that they have met each of the four requirements of Rule 23(a) and at least one 

subsection of Rule 23(b). Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1186, amended by

273 F.3d 1266 (9th Cir. 2001). “A party seeking class certification must affirmatively 

demonstrate . . . compliance with the Rule[.]” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 

(2011).

Rule 23(a) provides that a district court may certify a class only if: “(1) the class is so 

numerous that joinder of all members is impracticable; (2) there are questions of law or fact 

common to the class; (3) the claims or defenses of the representative parties are typical of the 

claims or defenses of the class; and (4) the representative parties will fairly and adequately protect 

the interests of the class.” Fed. R. Civ. P. 23(a). That is, the class must satisfy the requirements of 

numerosity, commonality, typicality, and adequacy of representation to maintain a class action. 

Mazza v. Am. Honda Motor Co., Inc., 666 F.3d 581, 588 (9th Cir. 2012).
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If all four prerequisites of Rule 23(a) are satisfied, the Court must also find that Plaintiff 

“satisf[ies] through evidentiary proof” at least one of the three subsections of Rule 23(b). 

Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1242 (2013). Rule 23(b) sets forth three general 

types of class actions. See Fed. R. Civ. P. 23(b)(1)-(3). Of these types, Plaintiff seeks 

certification under Rule 23(b)(3). The Court can certify a class under Rule 23(b)(3) if the Court 

finds that “questions of law or fact common to class members predominate over any questions 

affecting only individual members, and that a class action is superior to other available methods 

for fairly and effectively adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3).

“[A] court’s class-certification analysis must be ‘rigorous’ and may ‘entail some overlap 

with the merits of the plaintiff's underlying claim[.]” Amgen Inc. v. Conn. Ret. Plans & Trust 

Funds, 133 S. Ct. 1184, 1194 (2013) (quoting Dukes, 564 U.S. at 351); see also Mazza, 666 F.3d 

at 588 (“‘Before certifying a class, the trial court must conduct a ‘rigorous analysis' to determine 

whether the party seeking certification has met the prerequisites of Rule 23.’” (quoting Zinser, 253 

F.3d at 1186)). This “rigorous” analysis applies to both Rule 23(a) and Rule 23(b). Comcast, 133 

S. Ct. at 1432 (stating that Congress included “addition[al] . . . procedural safeguards for (b)(3) 

class members beyond those provided for (b)(1) or (b)(2) class members (e.g., an opportunity to 

opt out)” and that a court has a “duty to take a ‘close look’ at whether common questions 

predominate over individual ones”).

Nevertheless, “Rule 23 grants courts no license to engage in free-ranging merits inquiries 

at the certification stage.” Amgen, 133 S. Ct. at 1194–95. “Merits questions may be considered to 

the extent—but only to the extent—that they are relevant to determining whether the Rule 23 

prerequisites for class certification are satisfied.” Id. at 1195. If a court concludes that the moving 

party has met its burden of proof, then the court has broad discretion to certify the class. Zinser, 

253 F.3d at 1186.

III. DISCUSSION

As set forth above, Plaintiff asserts that Wal-Mart’s meal period premiums are inadequate 

under California Labor Code § 226.7(b) because Wal-Mart calculates these premiums without 
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regard to non-discretionary remuneration earned in the same pay period, and correspondingly 

seeks to certify a class of “[a]ll current and former California non-exempt retail store employees of 

[Wal-Mart] who received non-discretionary remuneration, including ‘MYSHARE INCT,’ and was 

paid any meal period premium payments in the same period that the non-discretionary 

remuneration was earned, at any time between December 2, 2012, through the present.” Mot. at 3. 

Further, Plaintiff argues that Wal-Mart’s failure to specify on its wage statements the hourly rates 

and number of hours worked for “OVERTIME/INCT”—an additional overtime wage payment—

violates California Labor Code § 226(a)(9), and correspondingly seeks to certify a class of “[a]ll 

current and former California non-exempt employees of [Wal-Mart] who received 

‘OVERTIME/INCT,’ at any time between December 2, 2015, through the present.” Id. Finally, 

Plaintiff asserts that Wal-Mart’s failure to include pay period start and end dates on its statements 

of final pay violates California Labor Code § 226(a)(6), and correspondingly seeks to certify a 

class of “[a]ll former non-exempt employees who worked for [Wal-Mart] in the State of California 

and whose employment terminated (whether voluntarily or involuntarily) at any time from 

December 2, 2015 to the present.” Id. at 3–4. 

Wal-Mart does not contest that Plaintiff has satisfied the requirements of Rule 23(a), as 

evidenced by the fact that Wal-Mart’s brief in opposition does not address the issue. See generally

Opp. The Court agrees that Plaintiff satisfies all of the Rule 23(a) requirements. 

First, with regards to numerosity, Wal-Mart has identified (1) 51,824 employees “who 

were paid any meal period premiums and additional non-discretionary pay in the same period”

during the relevant class period; (2) 75,791 employees “who received [OVERTIME/INCT] on 

their wage statements during the relevant [class] period”; and (3) 67,211 employees “who received 

a Statement of Final Pay from [Wal-Mart] during the relevant [class] period.” Mot. at 22; see

Stokes Dep. at 93; ECF No. 60-1, Ex. A. 

Second, as to commonality, the resolution of each of Plaintiff’s three claims turns on a 

question of law common to the corresponding class. Specifically, for the “Meal Period Regular 

Rate Class,” every class member’s claim depends in part on whether Wal-Mart’s policy of
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calculating meal period premiums without regard to non-discretionary remuneration violates 

California Labor Code § 226.7(c). Similarly, for the “OVERTIME/INCT Wage Statement Class,” 

every class member’s claim depends on whether Wal-Mart’s policy of listing 

“OVERTIME/INCT” as a lump sum on wage statements without specifying the hourly rates and 

numbers of hours worked for “OVERTIME/INCT” violates California Labor Code § 226(a)(9). 

Finally, for the “Final Wage Statement Class,” every class member’s claim depends on whether 

Wal-Mart’s policy of not listing pay period start and end dates on statements of final pay violates 

California Labor Code § 226(a)(6). 

Third, with regards to typicality, Plaintiff has alleged that within each class, Plaintiff and 

all class members suffered the same injury. Specifically, Plaintiff asserts that (1) all class 

members in the “Meal Period Regular Rate Class” received inadequate meal period premiums; (2) 

all class members in the “OVERTIME/INCT Wage Statement Class” received wage statements 

that improperly failed to identify the hourly rates and numbers of hours worked for 

“OVERTIME/INCT”; and (3) all class members in the “Final Wage Statement Class” received 

statements of final pay that improperly failed to include pay period start and end dates.

Fourth, as to adequacy, there is no indication of any conflict of interest among the class, 

and Plaintiff’s counsel are experienced in litigating wage and hour class actions. See Mot. at 30. 

Instead of contesting whether Plaintiff has satisfied the requirements of Rule 23(a), Wal-Mart 

argues in its opposition that Plaintiff falls short of the predominance and superiority requirements 

of Rule 23(b)(3). The Court addresses each requirement in turn.

A. Predominance

Under Rule 23(b)(3), plaintiffs must show “that the questions of law or fact common to 

class members predominate over any questions affecting only individual members.” Fed. R. Civ. 

P. 23(b)(3). “The Rule 23(b)(3) predominance inquiry” is meant to “tes[t] whether proposed 

classes are sufficiently cohesive to warrant adjudication by representation.” Amchem Prods., Inc. 

v. Windsor, 521 U.S. 591, 623 (1997). The Ninth Circuit has held that “there is clear justification 

for handling the dispute on a representative rather than an individual basis” if “common questions 
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present a significant aspect of the case and they can be resolved for all members of the class in a 

single adjudication.” Hanlon, 150 F.3d at 1022. In ruling on a motion for class certification based 

on Rule 23(b)(3), a district court must conduct a rigorous analysis to determine whether the class 

representatives have satisfied both the predominance and superiority requirements. See Zinser, 

253 F.3d at 1186. The predominance analysis focuses on “the legal or factual questions that 

qualify each class member's case as a genuine controversy” to determine “whether proposed 

classes are sufficiently cohesive to warrant adjudication by representation.” Amchem Prods., 521 

U.S. at 623; see also Fed. R. Civ. P. 23(b)(3) (to certify a class, the court must find that “questions 

of law or fact common to class members predominate over any questions affecting only individual 

members”).

This Court has previously identified five principles that guide the Court's predominance 

inquiry:

First, and most importantly, the critical question that this Court must answer is 

whether common questions predominate over individual questions. Amgen, 133 S. 

Ct. at 1191. In essence, this Court must determine whether common evidence and 

common methodology could be used to prove the elements of the underlying cause 

of action. Id. Second, in answering this question, this Court must conduct a 

“rigorous” analysis. Comcast Corp., 133 S. Ct. at 1432. This analysis may overlap 

with the merits, but the inquiry cannot require Plaintiffs to prove elements of their 

substantive case at the class certification stage. Amgen, 133 S. Ct. at 1194. Third, 

this Court must determine not only the admissibility of expert evidence that forms 

the basis of the methodology that demonstrates whether common questions 

predominate. Ellis, 657 F.3d at 982. Rather, this Court must also determine 

whether that expert evidence is persuasive, which may require the Court to resolve 

methodological disputes. Id.; see also In re Rail Freight Fuel Surcharge Antitrust 

Litig., 725 F.3d 9244, 255 (D.C. Cir. 2013). Fourth, the predominance inquiry is 

not a mechanical inquiry of “bean counting” to determine whether there are more 

individual questions than common questions. Butler v. Sears, Roebuck & Co., 727 

F.3d 796, 801 (7th Cir. 2013). Instead, the inquiry contemplates a qualitative 

assessment, which includes a hard look at the soundness of statistical models. Id.; 

In re Rail Freights Fuel Surcharge Antitrust Litig., 725 F.3d at 255. Fifth, 

Plaintiffs are not required to show that each element of the underlying cause of 

action is susceptible to classwide proof. Amgen, 133 S. Ct. at 1196. Rather, they

need only show that common questions will predominate with respect to their class 

as a whole. Id.

In re High-Tech Empl. Antitrust Litig., 985 F. Supp. 2d 1167, 1186–87 (N.D. Cal. 2013). With 
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these principles in mind, the Court turns to Plaintiff’s motion.

Plaintiff argues that class certification is appropriate for all three of Plaintiff’s claims (and 

their corresponding classes) because each claim challenges a “class-wide polic[y] and practice[].” 

Mot. at 31. In contrast, Wal-Mart asserts that Plaintiff has failed to show predominance for any of 

Plaintiff’s claims. The Court evaluates each of Plaintiff’s claims in turn.

1. Meal Period Premium Claim

Plaintiff argues that class certification is appropriate for Plaintiff’s “Meal Period Regular 

Rate Class” because “if this Court determines that the meal period premium must include 

additional non-discretionary remuneration consistent with the definition of regular rate [in 

California Labor Code § 226.7(c)], then adjudication of this claim will only require mathematical 

computations to calculate the amount of damages/penalties owed.” Mot. at 31. In other words, 

Plaintiff asserts that (1) every class member’s claim depends on the legal question of whether 

Wal-Mart’s policy of calculating meal period premiums without regard to non-discretionary 

remuneration violates California Labor Code § 226.7(c); and (2) this common legal question 

predominates over all individualized inquiries regarding each class member’s damages. 

Wal-Mart asserts that Plaintiff’s meal period premium claim falls short of the 

predominance requirement because even if Plaintiff is correct that Wal-Mart’s method of 

calculating meal period premiums violates California Labor Code § 226.7(c), the Court must 

evaluate individualized evidence and engage in individualized inquiries to determine Wal-Mart’s 

liability. See Opp. at 7–11. This is because (1) Wal-Mart cannot be in violation of § 226.7(c) for 

failing to pay the correct meal period premium to a class member unless Wal-Mart was legally

obligated to pay a meal period premium to that class member in the first place; (2) Wal-Mart can 

only be legally obligated to pay a meal period premium to a class member if Wal-Mart actually 

“fail[ed] to provide [that class member] . . . a meal . . . period in accordance with a state law,” Cal. 

Lab. Code § 226.7(c); and (3) although every class member received at least one meal period 

premium, it cannot be assumed that Wal-Mart was legally obligated to pay every meal period 

premium that it paid to the class members because the payment of a meal period premium to a 
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class member does not necessarily mean that Wal-Mart actually failed to provide that class 

member a compliant meal period. See id. According to Wal-Mart’s “Regional HR Director,” 

Todd Stokes, Wal-Mart’s policy is to pay a meal period premium to an employee whenever a 

Meal Exception Report indicates that the employee’s meal was skipped, shortened, or delayed, 

regardless of “whether the associate voluntarily skipped, shortened, or took a late meal period, or 

whether the associate received a full meal period on time and without interruption but did not 

clock-in or clock-out for whatever reason.” Stokes Decl. ¶ 5. Thus, Wal-Mart has introduced 

evidence indicating that in some instances, a class member may have received a meal period 

premium not because Wal-Mart was legally obligated to pay that meal period premium, but rather 

because the class member either forgot to clock-in and clock-out for his meal period or voluntarily 

skipped or shortened his meal period. In turn, because Plaintiff must establish that Wal-Mart was 

legally obligated to pay a meal period premium to a class member in order to establish a violation 

of § 226.7(c), and because it cannot be assumed that every meal period premium received by a 

class member was legally required, determination of Wal-Mart’s liability would entail 

individualized inquiries into whether each meal period premium received by each class member 

was legally required—that is, prompted by an actual failure by Wal-Mart to provide a compliant 

meal period as opposed to a mere clocking error or voluntary meal period disruption by the class 

member.

Although Wal-Mart is correct that determining Wal-Mart’s liability will necessitate

individualized inquiries into whether each meal period premium received by each class member 

was legally required, Wal-Mart has not demonstrated that such individualized inquiries will 

predominate over the common legal question presented by Plaintiff’s meal period premium claim. 

In affirming class certification in Abdullah v. United States Security Associates, Inc., 731 F.3d 952 

(9th Cir. 2013), the Ninth Circuit ruled on a similar predominance issue. The plaintiff in Abdullah

brought a class action based on a claim that his employer had a policy of requiring employees to 

take “on-duty meal periods” and was “therefore liable for ‘paying premium compensation for 

missed meal periods . . . pursuant to California Labor Code § 226.7.’” Id. at 955. In opposing 
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class certification, the defendant in Abdullah argued that the predominance requirement was not 

met because determining the defendant’s liability would entail individualized inquiries into 

whether each meal period taken by each class member was actually an “on-duty” meal period as 

opposed to an “off-duty” meal period. See id. at 966 (“Finally, USSA argues that individual issues 

will predominate because USSA’s ‘time records will not dispositively show which meal periods 

were off duty meal periods’ for any given employee.”). The Ninth Circuit rejected the defendant’s 

argument by observing that “it would not be difficult to determine USSA’s liability to individual 

plaintiffs” because “Defendant’s records of each employee’s clock-in and clock-out times, how 

much he was paid, and whether he was staffed at a single guard post[] can be used to extrapolate 

whether his meal break was on- or off-duty.” Id. at 966–67. 

Similarly, in the instant case, Wal-Mart’s own records can be used to determine whether 

any particular meal period premium received by a class member was prompted by an actual failure 

by Wal-Mart to provide a compliant meal period (and therefore legally required). Specifically, at 

his deposition, Mr. Stokes testified that Wal-Mart investigates every reported “meal exception”—

which means every meal period that appears to have been skipped, shortened, or late according to 

the Meal Exception Report—in order to determine and document why the exception happened.1 

Stokes Dep. at 44–45, 47–48. Mr. Stokes explained that Wal-Mart conducts these investigations 

in order to determine whether any Wal-Mart managers should be subject to disciplinary action for 

failing to provide compliant meal periods to employees, or whether an employee who forgot to 

“punch in” his meal period or who voluntarily missed, delayed, or shortened his meal period needs 

 

1

The Court notes that Plaintiff appears to conflate the Meal Exception Reports with the records 

that are generated by Wal-Mart’s investigations into every reported meal exception. See Reply at

10 (“Moreover, there is no evidence from the Sandoval case that Walmart provided deposition 

testimony as to the meal exception reports and, in particular, that a supervisor investigates and 

documents the reasons for every meal period violation. In other words, the trial court in Sandoval

failed to address the actual substance of the meal exception reports, or that the plaintiff in that case 

presented such evidence.”). According to Mr. Stokes, these are two different things. Specifically, 

while the Meal Exception Reports will reflect a meal exception “irrespective of whether the 

associate voluntarily skipped, shortened, or took a late meal period, or whether the associate 

received a full meal period on time and without interruption but did not clock-in or clock-out for 

whatever reason,” Stokes Decl. ¶ 6, Wal-Mart will then investigate every reported meal exception

in order to determine and document why the exception happened. Stokes Dep. at 44–45, 47–48.
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to be “coached” to comply with Wal-Mart’s policies. Id. at 47; see Stokes Decl. ¶ 7. Thus, it 

appears that “it would not be difficult to determine [Wal-Mart’s] liability to individual plaintiffs” 

because Wal-Mart’s records of these investigations—which, according to Mr. Stokes, document 

why each meal exception happened—“can be used to extrapolate” whether each meal period 

premium that was paid to a class member was prompted by an actual failure by Wal-Mart to 

provide a compliant meal period. Abdullah, 731 F.3d at 966–67. Further, Wal-Mart does not 

offer any reason to believe that these records cannot be relied upon to make these determinations. 

Wal-Mart further argues that even if Plaintiff can show that the predominance requirement 

is met for Plaintiff’s meal period premium claim, that claim “is based on a flawed legal premise.” 

Opp. at 11. In other words, Wal-Mart argues that Plaintiff is wrong on the merits of his meal 

period premium claim. See id. at 12 (arguing that “inclusion of non-discretionary incentive pay . . 

. in the calculation of the ‘regular rate of compensation’ required by Cal. Labor Code § 226.7(b) . . 

. is a marked departure from California law which is not supported by California legislative 

decisions” and asserting that “no California appellate court, nor any federal court in California 

(applying substantive California law) has reached the conclusion sought by the Plaintiff here”); id.

at 13–14 (stating that “there is a split among the California trial courts on this important issue”); 

id. at 14 (“Nevertheless, there has not been a California appellate court that has ruled on the issue 

of whether non-discretionary incentive bonuses must be included in the ‘regular rate of 

compensation’ for the purposes of meal premium pay. This Court should reject Plaintiff’s request 

to create new law and to take Cal. Labor Code § 226.7 to a place where the California Legislature 

did not intend it to go.”); id. at 17 (“Plaintiff’s interpretation of Section 226.7 is not supported by 

governing law.”). However, as discussed above, “Rule 23 grants courts no license to engage in 

free-ranging merits inquiries at the certification stage.” Amgen, 133 S. Ct. at 1194–95. Thus, 

“[m]erits questions may be considered to the extent—but only to the extent—that they are relevant 

to determining whether the Rule 23 prerequisites for class certification are satisfied.” Id. at 1195. 

Wal-Mart’s argument that Plaintiff asserts an incorrect interpretation of California Labor Code § 

226.7(b) raises a merits question that is completely unrelated to whether any of the Rule 23 
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requirements have been met in the instant case. As a result, at this stage of the proceedings, the 

Court cannot consider Wal-Mart’s merits argument that Plaintiff’s claim “is based on a flawed 

legal premise.” Opp. at 11. 

2. Overtime Wage Statement Claim

Plaintiff argues that class certification is appropriate for Plaintiff’s “OVERTIME/INCT 

Wage Statement Class” because “if this Court finds that” Wal-Mart is currently in violation of 

California Labor Code § 226(a)(9) and therefore “must specify the hourly rates and numbers of 

hours worked for OVERTIME/INCT”—which, as discussed above, is an additional overtime 

wage that is paid in order to ensure compliance with California Labor Code § 510(a)—“then 

Plaintiff can proceed to trial on” the other elements of Plaintiff’s claim and “use mathematical 

computations for the amount of penalties based on the number of violative wage statements.” 

Mot. at 31. 

Wal-Mart argues that Plaintiff cannot satisfy the predominance requirement on Plaintiff’s 

overtime wage statement claim because under California Labor Code § 226(e), Plaintiff can 

establish injury stemming from Wal-Mart’s alleged violation of California Labor Code § 226(a)(9) 

only if Plaintiff demonstrates that Wal-Mart’s employees “‘cannot promptly and easily determine 

from the wage statement[s] alone’ . . . the applicable hourly rates in effect during the pay period 

and the corresponding number of hours worked at each hourly rate.” Opp. at 20–21 (quoting 

Lubin v. Wackenhut Corp., 5 Cal. App. 5th 926, 959 (2016) (quoting Cal. Lab. Code § 

226(e)(2)(B)). Thus, Wal-Mart argues that “the focus would still be an associate by associate 

basis to determine whether a particular associate could not ‘promptly and easily determine’” the 

hourly rates and number of hours worked from “his/her wage statements.” Id. at 21. In other 

words, Wal-Mart asserts that determining Wal-Mart’s liability on this claim would require 

individualized inquiries into whether each particular class member could “promptly and easily 

determine” from his wage statements alone the hourly rates and number of hours he worked in a 

given pay period. 

Wal-Mart’s argument is defeated by the text of California Labor Code § 226. Specifically, 
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§ 226(e)(2)(C) states that “‘promptly and easily determine’ means a reasonable person would be 

able to readily ascertain the information without reference to other documents or information.” 

Cal. Lab. Code § 226(e)(2)(C) (emphasis added). Thus, contrary to Wal-Mart’s assertion, 

determining Wal-Mart’s liability on this claim would not require individualized inquiries into 

whether each particular class member could “promptly and easily determine” the hourly rates and 

number of hours he worked in a given pay period from his wage statements alone. Instead, in 

order to establish injury stemming from Wal-Mart’s alleged violation of California Labor Code § 

226(a)(9), Plaintiff need only demonstrate that “a reasonable person” would not be able to “readily 

ascertain” from Wal-Mart’s wage statements the hourly rates and numbers of hours he worked in a 

given pay period. See Stafford v. Brink’s, Inc., 2015 WL 12699458, *15 (C.D. Cal. Dec. 1. 2015) 

(“[T]he standard . . . is whether ‘a reasonable person would be able to readily ascertain the 

information without reference to other documents or information,’ and not whether the plaintiff or 

each putative class member would be able to readily ascertain the information without reference to 

other documents or information.”). This objective “reasonable person” standard enables Plaintiff 

to demonstrate injury for Wal-Mart’s alleged violation of § 226(a)(9) on a class-wide basis, and 

therefore fatally undermines Wal-Mart’s argument that Plaintiff’s overtime wage statement claim 

fails to meet Rule 23’s predominance requirement. See id. (“This objective standard undermines 

Defendant’s claim that Defendant ‘is entitled to ask each one of the individuals at stake what their 

understanding of the wage statements was before a . . . liability determination is made against it’ . . 

. .”). 

In its opposition, Wal-Mart also argues that Plaintiff’s overtime wage statement claim “is 

built on a faulty legal premise,” and appears to assert a number of merits-based challenges to 

Plaintiff’s claim. Opp. at 18; see id. (“Therefore, there can be no argument that Wal-Mart is 

improperly excluding MyShare incentive awards from an associate’s overtime compensation 

because Wal-Mart is in clear compliance with 29 C.F.R. § 778.208 and with guidance from the 

U.S. Dept. of Labor.”); id. at 20 (“Section 226(a)(9) does not require that the regular rate or 

changes in the regular rate be included on the wage statement. All that is required is that ‘all 
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applicable hourly rates in effect during the pay period’ be listed, and Wal-Mart includes the 

associate’s applicable hourly rate on the wage statements.”). Again, at the class certification stage, 

“[m]erits questions may be considered to the extent—but only to the extent—that they are relevant 

to determining whether the Rule 23 prerequisites for class certification are satisfied.” Amgen, 133 

S. Ct. at 1195. Because Wal-Mart’s merits arguments against Plaintiff’s overtime wage statement 

claim are not relevant to determining whether Rule 23’s predominance requirement is met for 

Plaintiff’s overtime wage statement claim, the Court will not consider them at this stage of the 

proceedings. 

3. Final Wage Statement Claim

Plaintiff argues that class certification is appropriate for Plaintiff’s “Final Wage Statement 

Class” because “if this Court finds that” Wal-Mart’s failure to “specify . . . pay period dates” on its 

statements of final pay violates California Labor Code § 226(a)(6), “then Plaintiff can proceed to 

trial on” the other elements of Plaintiff’s claim and “use mathematical computations for the 

amount of penalties based on the number of violative wage statements.” Mot. at 31. 

Although Wal-Mart states in its opposition that Plaintiff’s claim “cannot be certified 

because it . . . will require individualized proof to establish liability,” in substance, Wal-Mart’s 

argument amounts to a merits-based argument that “Plaintiff’s claim . . . is based on a flawed legal 

premise.” Opp. at 21. Specifically, Wal-Mart asserts the following:

[Plaintiff’s] claim fails to take into account the clear and unequivocal language of 

Cal. Lab. Code § 226(a), which states that an employer must provide detailed wage 

statements “semimonthly or at the time of each payment of wages.” Wal-Mart fully 

complies with Section 226(a) because, although its Statement of Final Pay does not 

include the pay period, its on-cycle wage statements provide this information and 

are provided to associates semimonthly. 

Id. (citation omitted). However, the legal question of whether Wal-Mart need only specify pay 

period dates on its semimonthly on-cycle wage statements to comply with California Labor Code 

§ 226(a)(6) is a merits question that is not relevant to determining whether Plaintiff can satisfy 

Rule 23’s predominance requirement for his final wage statement claim. 

Wal-Mart appears to attempt to turn this merits question into a predominance issue by 
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arguing that (1) “[b]ecause each associate’s regular on-cycle wage statement provides all 

statutorily required information, Plaintiff can only establish liability if he can prove that he (or 

other class members) did not receive the final on-cycle wage statement”; and therefore (2) 

determining Wal-Mart’s liability would require individualized inquiries into whether each 

individual class member received a final on-cycle wage statement. Opp. at 22. However, Plaintiff 

does not allege that Plaintiff or any class member failed to receive a final on-cycle wage 

statement, and does not dispute Wal-Mart’s assertion that every “terminated Wal-Mart associate 

can access his/her final on-cycle wage statement on-line.” See Reply at 5; Opp. at 22. Thus, it is 

clear that Plaintiff’s claim does not in any way depend on whether Plaintiff or any other class 

members actually received a final on-cycle wage statement. Instead, Plaintiff’s claim is that WalMart’s failure to specify pay period dates on its statements of final pay amounts to a violation of 

California Labor Code § 226(a)(6), regardless of whether any (or every) class member received a 

final on-cycle wage statement that specifies pay period dates. Wal-Mart’s argument that § 

226(a)(6) only requires Wal-Mart to specify pay period dates on its on-cycle wage statements may 

be a successful merits argument, but it has no bearing on whether Plaintiff has satisfied the 

requirements of Rule 23 for Plaintiff’s final wage statement claim. As a result, the Court does not 

consider that argument at the class certification stage of the proceedings. 

B. Superiority

Rule 23(b)(3) provides four factors that a court must consider in determining whether a 

class action is superior to other methods of adjudication. These factors are: 

(A) the class members’ interests in individually controlling the prosecution or 

defense of separate actions;

(B) the extent and nature of any litigation concerning the controversy already begun 

by or against class members;

(C) the desirability or undesirability of concentrating the litigation of the claims in 

the particular forum; and

(D) the likely difficulties in managing a class action.

Fed. R. Civ. P. 23(b)(3). “‘[T]he purpose of the superiority requirement is to assure that the class 
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is the most efficient and effective means of resolving the controversy.’” Wolin v. Jaguar Land 

Rover North America, LLC, 617 F.3d 1168, 1175 (9th Cir. 2010) (quoting 7AA Charles Wright, 

Arthur Miller & Mary Kay Kane, Federal Practice and Procedure, § 1779 at 174 (3d ed. 2005)). 

“In cases in which plaintiffs seek to recover relatively small sums and the disparity between 

litigation costs and the recovery sought may render plaintiffs unable to proceed individually, ‘class 

actions may permit the plaintiffs to pool claims which would be uneconomical to bring 

individually.’” Moore v. Ulta Salon, Cosmetics & Fragrance, Inc., 311 F.R.D. 590, 622 (C.D. 

Cal. 2015) (quoting Local Joint Exec. Bd. of Culinary/Bartender Tr. Fund v. Las Vegas Sands, 

Inc., 244 F.3d 1152, 1163 (9th Cir.), cert. denied, 534 U.S. 973 (2001). 

In the instant case, Wal-Mart argues that Plaintiff has not shown that a class action is 

superior to other methods of adjudication because (1) each class member’s potential recovery 

“could be in the multiple thousands of dollars, in addition to recovery of attorney fees as provided 

by statute”; and therefore (2) some class members may have strong interests “in individually 

controlling the prosecution or defense of separate actions.” Opp. at 22; Fed. R. Civ. P. 

23(b)(3)(A). However, courts “routinely find that the class action device is superior to other forms 

of adjudication” for “wage and hour cases under California law” that involve similar claims—and 

therefore similar amounts of damages—to those in the instant case. Moore, 311 F.R.D. at 622; see

Ortega v. J.B. Hunt Transp., Inc., 258 F.R.D. 361, 364–65 (C.D. Cal. 2009) (certifying a class of 

nearly 6,000 employees who alleged that their employer failed to pay minimum wages, provide 

proper meal and rest periods, provide accurate wage statements, or provide wages upon 

termination); see also Arrendondo v. Delano Farms Co., 2011 WL 1486612, *17 (E.D. Cal. 2011) 

(“Courts recognize that employer practices and policies with regard to wages and hours often have 

an impact on large numbers of workers in ways that are sufficiently similar to make class-based 

resolution appropriate and efficient.”). Thus, even though Wal-Mart correctly observes that the 

Ninth Circuit has noted that individual damages exceeding $50,000 weigh against finding that a 

class action is superior to other methods of adjudication, see Zinser, 253 F.3d at 1190–91, the 

individual damages in this wage and hour case—even if they “could be in the multiple thousands 
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of dollars” for some class members, as Wal-Mart asserts—are substantially lower and therefore 

weigh in favor of finding that a class action is superior to other methods of adjudicating the claims 

in the instant case. 

Wal-Mart also asserts that “Plaintiff cannot establish that class certification of his wage 

statement claims in this lawsuit is a superior method because there is another lawsuit pending in 

this federal district with a proposed class-wide settlement that would resolve Plaintiff’s and the 

putative class’ wage statement claims.” Opp. at 22–23. Specifically, Wal-Mart points to Smith v. 

Wal-Mart Stores, Inc., No. 16-CV-02832-JD (N.D. Cal.), and asserts that the impending classwide settlement in Smith will resolve the claims in the instant case because the plaintiff in Smith

“has alleged that she and other California employees of Wal-Mart were not provided with accurate 

wage statements in violation of California’s Labor Code.” Opp. at 23. However, the wage 

statement claims against Wal-Mart in Smith are different from the claims in the instant case. 

Smith is premised on Wal-Mart’s alleged “knowing and intentional failure to furnish wage 

statements accurately showing ‘the name and address of the legal entity that is the employer’ as 

required by California Labor Code section 226(a)(8).” Complaint ¶ 19, Smith v. Wal-Mart Stores, 

Inc., No. 16-CV-02832-JD (N.D. Cal. May 25, 2016), ECF No. 1-1. Thus, as Plaintiff correctly 

points out, “the release [in Smith] is expressly limited to only releasing claims for violation of 

[California] Labor Code Section 226(a)(8).” Reply at 13. Specifically, the release provision of 

the settlement agreement in Smith, which has been preliminarily approved by Judge James 

Donato, states the following:

Upon entry of the Court’s Order of Final Approval and judgment, it is understood 

and agreed by Participating Class Members that each Participating Class Member 

releases Defendants and the Releasees (as defined in paragraph 21) from any and all 

claims based upon Defendants’ alleged failure to furnish and/or maintain wage 

statements accurately setting forth the name of the legal entity that is the employer 

in violation of [California] Labor Code § 226(a)(8), including any claims under 

[California] Labor Code § 226(e) or the California Labor Code Private Attorneys 

General Act of 2004, Labor Code §§ 2698 et seq., based on any alleged violation of 

[California] Labor Code § 226(a)(8), whether known or unknown, suspected or 

unsuspected, that existed or came into existence between March 30, 2015 and 

February 1, 2016. The claims described above are referred to herein as the 
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“Released Claims.” The Released Claims do not include any [California] Labor 

Code claims or any PAGA claims other than claims based on any alleged violation 

of [California] Labor Code § 226(a)(8).

Proposed Class Action Settlement Agreement and Release ¶ 39, Smith v. Wal-Mart Stores, Inc., 

No. 16-CV-02832-JD (N.D. Cal. Nov. 27, 2017), ECF No. 68-2 Ex. 1. 

Based on this release provision, it is clear that the proposed class-wide settlement in Smith

will not resolve any of the claims in the instant case. The release provision in Smith explicitly 

states that the only claims against Wal-Mart that will be released as a result of the settlement in 

Smith are those based on alleged violations of California Labor Code § 226(a)(8). Because the 

claims in the instant case are based on alleged violations of §§ 226(a)(6), 226(a)(9), and 226.7(c), 

none of them are covered by the release provision in Smith. 

Accordingly, the Court finds that a class action is superior to other available methods of 

adjudicating the claims in the instant case. 

IV. CONCLUSION

For the foregoing reasons, the Court GRANTS Plaintiff’s motion for class certification. 

Plaintiff has satisfied the requirements of Rules 23(a) and 23(b)(3), and the Court CERTIFIES the 

following three Rule 23(b)(3) classes: 

Meal Period Regular Rate Class: All current and former California non-exempt 

retail store employees of [Wal-Mart] who received non-discretionary remuneration, 

including “MYSHARE INCT,” and was paid any meal period premium payments 

in the same period that the non-discretionary remuneration was earned, at any time 

between December 2, 2012, through the present.

OVERTIME/INCT Wage Statement Class: All current and former California 

non-exempt employees of [Wal-Mart] who received “OVERTIME/INCT,” at any 

time between December 2, 2015, through the present.

Final Wage Statement Class: All former non-exempt employees who worked for 

[Wal-Mart] in the State of California and whose employment terminated (whether 

voluntarily or involuntarily) at any time from December 2, 2015 to the present.

The Court APPOINTS Roderick Magadia as representative of the class. As Defendants do 

not challenge the adequacy of proposed class counsel, the Court also APPOINTS Larry Lee of 

Diversity Law Group, P.C., Dennis Hyun of Hyun Legal, APC, and William L. Marder of Polaris 
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Law Group LLP as class counsel to represent the class. 

IT IS SO ORDERED.

Dated: January 9, 2018

______________________________________

LUCY H. KOH

United States District Judge