1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 BRANDAN GRIEGO, Case No.: 20cv401-L-MDD

12 Plaintiff, ORDER DENYING PLAINTIFF’S 13 v. MOTION FOR CLASS CERTIFICATION AND DENYING 14 WAL-MART STORES, INC. et al., PLAINTIFF’S EX PARTE MOTION 15 Defendants. TO RECONSIDER

16 (ECF Nos. 55, 77) 17

18 Pending before the Court are Plaintiff Brandan Griego’s motion for class 19 certification (ECF No. 55) and his ex parte motion to reconsider (ECF No. 77). The 20 Court decides the matters on the papers submitted and without oral argument. See Civ. L.

.1(d)(1). For the reasons stated below, the Court denies Plaintiff’s motion for class 22 certification and denies his ex parte motion as moot. 23 This action was transferred to this Court at Plaintiff’s request. (Pl.’s Mot. for 24 Transfer and Reassignment Under Local Rule 40.1, ECF No. 82.) Plaintiff requested the 25 transfer because a nearly identical case was already pending in this Court, Garcia v. Wal- 26 Mart Associates, Inc., et al., 18cv500-L-MDD (“Garcia”). Both actions assert the same 27 legal claim for waiting time penalties pursuant to California Labor Code §§ 201-203 on 28 behalf of a class and subclass against Wal-Mart Defendants. (Cf. Pl’s Notice of Mot. and 1 Mot. for Class Certification, Garcia ECF No. 34 (“Garcia Class Cert. Mot.”) with Pl.’s 2 Notice of Mot. and Mot. for Class Certification, ECF No. 55 (“Griego Class Cert. Mot.”). 3 This Court agreed to accept the transfer based on Civil Local Rule 40.1 because the same 4 legal claims are asserted based on the same payroll and timekeeping policies and 5 procedures employed by Defendants. 6 On August 26, 2019, the Court granted class certification in Garcia, certifying a 7 class and subclass defined as follows: 8 a. Any and all individuals who worked for Defendants in the State of California whose employment ended at any time from February 1, 2015, 9 through the present, and who received a Statement of Final Pay and then 10 received any additional wages (regular, overtime and/or vacation) on Defendants’ on-cycle payroll immediately subsequent to the issuance of the 11 Statement of Final Pay to the individual (the “Class”); and 12 b. Any and all individuals who worked for Defendants in the State of 13 California whose employment ended at any time from February 1, 2015, 14 through the present, and who received a Statement of Final Pay and then received any additional wages (regular, overtime and/or vacation) more than 15 3 days after the issuance of the Statement of Final Pay on Defendants’ on- 16 cycle payroll immediately subsequent to the issuance of the Statement of Final Pay to the individual (the “Subclass”). 17

18 (Garcia Class Cert. Mot. at ii-iii; Order Granting Pl’s Mot. for Class Certification, 19 Garcia ECF No. 48 at 2-3.) 20 Plaintiff herein seeks class certification for the same claim, failure to pay 21 separating employees all final wages within the time provided by California Labor Code 22 §§ 201(a) and 202(a), based on the same theory of the case. (Cf. Garcia Class Cert. Mot. 23 with Griego Class Cert. Mot.) With the exception of the class period, Plaintiff’s 24 proposed class and subclass definitions are the same as those confirmed in Garcia: 25 a. Any and all individuals who worked for Defendants in the State of California whose employment ended at any time from August 27, 2019, 26 through the date of judgment, and who received a Statement of Final Pay 27 and then received any additional wages (regular, overtime and/or vacation) 28 1 on Defendants on-cycle payroll immediately subsequent to the issuance of the Statement of Final Pay to the individual; 2

3 b. Any and all individuals who worked for Defendants in the State of California whose employment ended at any time from August 27, 2019, 4 through the date of judgment, and who received a Statement of Final Pay 5 and then received any additional wages (regular, overtime and/or vacation) more than 3 days after the issuance of the Statement of Final Pay on 6 Defendants on-cycle payroll immediately subsequent to the issuance of the 7 Statement of Final Pay to the individual (the “Subclass”).

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9 (Griego Class Cert. Mot. at ii-iii.) The only difference between Plaintiff’s proposed class 10 and the class certified in Garcia is the class period. The class period proposed by 11 Plaintiff is entirely subsumed in the class period certified in Garcia. 12 A party seeking class certification must be prepared to prove that he or she meets 13 the requirements of Federal Rule of Civil Procedure 23(a) and the requirements of at least 14 one of the categories under Rule 23(b). Comcast Corp. v. Behrend,

, 33 15 (2013). The moving party must show “through evidentiary proof” that these 16 requirements are met.

17 Plaintiff seeks certification pursuant to Rule 23(b)(3). To prevail, he must show, 18 among other things, that “a class action is superior to other available methods for fairly 19 and efficiently adjudicating the controversy.” Fed. R. Civ. Proc. 23(b)(3). One of the 20 matters pertinent to this finding is “the extent and nature of any litigation concerning the 21 controversy already begun by or against class members.”

Plaintiff did not address 22 this factor in his motion. 23 The Garcia class includes Plaintiff’s proposed class. Plaintiff has not met his 24 burden to show that certifying a class action in his case is superior to other available 25 methods of adjudicating the putative class members’ claims. His motion for class 26 certification is therefore denied. 27 Also pending before the Court is Plaintiff’s ex parte motion to reconsider the Order 28 granting Defendants’ ex parte motion to strike new arguments raised in Plaintiff’s reply 1 ||in support of his motion for class certification. (ECF Nos. 75-77.) Because denial of 2 || Plaintiff’s class certification does not implicate new arguments Defendants claim Plaintiff 3 || raised in the reply, Plaintiff’s ex parte motion is denied as moot. 4 IT IS SO ORDERED. 5 ||Dated: March 31, 2022 pee ep? 7 H . James Lorenz, 3 United States District Judge

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