Chavez v. Our Lady of Lourdes Hosp. at Pasco, 415 P.3d 224, 190 Wash. 2d 507 (2018)

April 19, 2018 · Washington Supreme Court · NO. 94592-6
415 P.3d 224, 190 Wash. 2d 507

Judith Q. CHAVEZ, Kathleen Christianson, Oralia Garcia, and Marrietta Jones, individually, and on behalf of all similarly situated registered nurses employed by Our Lady of Lourdes Hospital at Pasco, d/b/a/ Lourdes Medical Center, Petitioners,
v.
OUR LADY OF LOURDES HOSPITAL AT PASCO, d/b/a Lourdes Medical Center and John Serle, individually, and in his capacity as an agent and officer of Lourdes Medical Center, Respondents.

NO. 94592-6

Supreme Court of Washington.

Argued January 16, 2018
Filed April 19, 2018

Jack B. Krona Jr., Attorney at Law, 6509 46th St. NW, Gig Harbor, WA, 98335-7212, James Gerard McGuinness, James G. McGuinness, Aaron M. Streepy, Streepy Law, PLLC, 5030 1st Ave. S Ste. 101, Seattle, WA, 98134-2438 for Petitioners.

Aaron Bass, Attorney at Law, Rebecca Watkins, Sather Byerly & Holloway LLP, 111 Sw 5th Ave. Ste. 1200, Portland, OR, 97204-3613 for Respondents.

Blythe H. Chandler, Toby James Marshall, Terrell Marshall Law Group PLLC, 936 N 34th St. Ste. 300, Seattle, WA, 98103-8869, Jeffrey Lowell Needle, Attorney at Law, 705 2nd Ave. Ste. 1050, Seattle, WA, 98104-1759 for Amicus Curiae on behalf of Washington Employment Lawyers Association.

Jennifer L. Robbins, Danielle Elizabeth Franco-Malone, Schwerin Campbell Barnard Iglitzin & Lav, 18 W Mercer St. Ste. 400, Seattle, WA, 98119-3971 for Amicus Curiae on behalf of Washington State Labor Council.

Timothy Sears, Attorney at Law, 575 Andover Park W Ste. 101, Tukwila, WA, 98188-3348 for Amicus Curiae on behalf of Washington State Nurses Association.

Carson Flora, Elizabeth Dedrick, SEIU Healthcare 1199NW, 15 S Grady Way Ste. 200, Renton, WA, 98057-3239 for Amicus Curiae on behalf of Seiu Healthcare 1199NW.

Sanni M-K Lemonidis, Robblee Detwiler PLLP, 2101 4th Ave. Ste. 1000, Seattle, WA, 98121-2346 for Amicus Curiae on behalf of United Food & Commercial Workers Local 21.

Daniel Edward Huntington, Richter-Wimberley PS, 422 W Riverside Ave. Ste. 1300, Spokane, WA, 99201-0305, James Walter Beck, Gordon Thomas Honeywell LLP, 1201 Pacific Ave. Ste. 2100, Tacoma, WA, 98402-4314, Valerie Davis Mcomie, Attorney at Law, 4549 Nw Aspen St., Camas, WA, 98607-8302 for Amicus Curiae on behalf of Washington State Association for Justice Foundation.

John James White Jr., Kevin Blair Hansen, Livengood Alskog, PLLC, PO Box 908, 121 Third Ave., Kirkland, WA, 98083-0908, Timothy J. O'Connell, Stoel Rives LLP, 600 University St. Ste. 3600, Seattle, WA, 98101-3197 for Amicus Curiae on behalf of Washington State Hospital Association and Amicus Curiae on behalf of Association of Washington Public Hospital Districts.

FAIRHURST, C.J.

*227*511¶ 1 Judith Q. Chavez, Kathleen Christianson, Oralia Garcia, Marrietta Jones, and other registered nurses (nurses) sought class certification in their wage action against their employer, Our Lady of Lourdes Hospital at Pasco d/b/a Lourdes Medical Center and John Serle (Lourdes). The trial court denied class certification, and the Court of Appeals affirmed. At issue is whether the trial court properly found that the nurses failed to satisfy the predominance and superiority requirements necessary for class certification. We reverse the Court of Appeals and hold that the trial court abused its discretion by finding that individual issues predominate and by failing to compare alternative methods of adjudication. We hold that predominance is met because the dominant and overriding issue in this litigation is whether Lourdes failed to ensure the nurses could take rest breaks and second meal periods and could record missed breaks.1 We hold superiority is met because a class action is superior to other methods of adjudication for the resolution of these claims. We reverse and remand to the trial court with instructions to certify the class.

I. FACTUAL AND PROCEDURAL BACKGROUND

¶ 2 The nurses were hourly employees at Lourdes. At the relevant time, Lourdes employed more than 100 nurses in nine different departments. Until 2013, Lourdes used a timekeeping system from Kronos Incorporated and an accounting system from Medical Information Technology Inc. called Meditech. Kronos automatically deducted 30 minutes from an employee's compensable time for a meal period during any shift lasting longer than five hours. When an employee clocked out, the employee could account for his or her first missed meal period by canceling the automatic deduction, and Lourdes would later pay for those 30 minutes *512at the appropriate rate. Kronos did not permit nurses to track missed rest breaks. Nor did Kronos permit nurses working 12-hour shifts-a category that includes the majority of nurses at Lourdes-to track missed second meal periods.

¶ 3 In 2012, the nurses filed this individual and class action for unpaid wages, asserting that they regularly missed breaks without *228compensation due to Lourdes' failure to ensure they could take breaks and record missed breaks. They sought monetary, declaratory, and injunctive relief. The parties engaged in extensive discovery for nearly a year and introduced conflicting facts.

¶ 4 In April 2013, the nurses moved for class certification. The court deferred ruling on the motion at that time and directed the nurses to file summary judgment motions before renewing their class certification motion. The nurses brought three summary judgment motions, and the trial court denied each of them, concluding that issues of fact remained as to whether individual nurses were afforded time to take breaks. The trial court noted that availability of a meal break could depend on the particular shift and that some nurses might be able to take intermittent rest breaks.2

*513¶ 5 In 2015, the nurses amended their complaint and renewed their class certification motion to include all registered nurses who worked at least one hourly shift at the hospital from June 2009 through March 20133 and, alternatively, to certify subclasses of these same nurses by department or shift hours. The trial court denied the motion, ruling that the nurses failed to satisfy the predominance and superiority requirements of CR 23(b)(3). The court was concerned that the differences between shift length and nurse type created manageability issues.

¶ 6 The nurses appealed the denial of certification under CR 23(b)(3). The Court of Appeals affirmed, basing its decision solely on the superiority prong. The Court of Appeals emphasized the deferential nature of the abuse of discretion standard. See Chavez v. Our Lady of Lourdes Hosp. at Pasco , No. 33556-9-III, slip op. at 31, 2017 WL 532486 (Wash. Ct. App. Feb. 9, 2017) (unpublished), http://www.courts.wa.gov/opinions/pdf7335569_unp.pdf ("We must assume the hospital's testimony to be accurate or else we do not bestow full deference to the court's ruling favoring the hospital."). Although the trial court had not expressly resolved conflicts in the evidence, the Court of Appeals decided to review the facts "in a light most favorable to Lourdes Medical Center." Id. at 30. The court acknowledged that "no case ... explicitly directs [the court] to view the facts in such a gloss for purposes of reviewing a class action ruling." Id.

¶ 7 The nurses sought this court's review, which we granted. Chavez v. Our Lady of Lourdes Hospital , 189 Wash.2d 1009, 402 P.3d 825 (2017).

II. ISSUE

¶ 8 Whether the trial court abused its discretion in ruling that the nurses failed to satisfy the predominance and superiority requirements of CR 23(b)(3).

*514III. ANALYSIS

¶ 9 A class action is an exception to the usual rule that litigation is conducted by and on behalf of only the individual named parties. Comcast Corp. v. Behrend , 569 U.S. 27, 33, 133 S.Ct. 1426, 185 L.Ed. 2d 515 (2013). A "primary function of the class action is to provide a procedure for vindicating claims [that], taken individually, are too small *229to justify individual legal action but which are of significant size and importance if taken as a group." Brown v. Brown , 6 Wash.App. 249, 253, 492 P.2d 581 (1971).

¶ 10 CR 23(b) concerns the requirements to maintain a class action and forms the basis of this appeal.4 A class action may be maintained under CR 23(b)(3) if the "court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy."5 Factors to be considered by the court when assessing predominance and superiority include

(A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of *515the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action.

CR 23(b)(3).

¶ 11 Washington courts liberally interpret CR 23 because the "rule avoids multiplicity of litigation, 'saves members of the class the cost and trouble of filing individual suits[,] and ... also frees the defendant from the harassment of identical future litigation.' " Smith v. Behr Process Corp ., 113 Wash.App. 306, 318, 54 P.3d 665 (2002) (alterations in original) (quoting Brown , 6 Wash.App. at 256-57, 492 P.2d 581 ). Accordingly, courts should err in favor of certifying a class because the class is always subject to the trial court's later modification or decertification. See Oda v. State , 111 Wash.App. 79, 91, 44 P.3d 8 (2002).

¶ 12 A trial court's decision to grant class certification is reviewed for manifest abuse of discretion. Lacey Nursing Ctr., Inc. v. Dep't of Revenue , 128 Wash.2d 40, 47, 905 P.2d 338 (1995). A trial court's decision to deny class certification will be upheld if " 'the record indicates the court properly considered all CR 23 criteria.' " Schnall v. AT&T Wireless Servs., Inc. , 171 Wash.2d 260, 266, 259 P.3d 129 (2011) (quoting Nelson v. Appleway Chevrolet, Inc. , 160 Wash.2d 173, 188, 157 P.3d 847 (2007) ). However, if the trial court fails to articulate its application of the CR 23 criteria to the facts relevant to class certification, an appellate court will reverse the denial of class certification. See Wash. Educ. Ass'n v. Shelton Sch. Dist. No. 309 , 93 Wash.2d 783, 793, 613 P.2d 769 (1980).6

*516A. The trial court abused its discretion by ruling that the nurses failed to satisfy the predominance requirement

¶ 13 To determine whether common issues predominate over individual ones, *230a trial court pragmatically examines whether there is a common nucleus of operative facts in each class member's claim. Moeller v. Farmers Ins. Co. of Wash. , 155 Wash.App. 133, 148, 229 P.3d 857 (2010), aff'd 173 Wash.2d 264, 267 P.3d 998 (2011). The relevant inquiry is whether the issue shared by class members is the dominant, central, or overriding issue in the litigation. Miller v. Farmer Bros. Co. , 115 Wash.App. 815, 825, 64 P.3d 49 (2003). The trial court ruled that the nurses had not satisfied the predominance prong of CR 23(b)(3) :

The Court finds that common class issues do not predominate over individual questions because issues regarding shift, nurse type, nurse roles and job duties, patient assignments and census, managers, and department cause the specifics for each class member to overrun any generalities.

Clerk's Papers (CP) at 1012. At the class certification hearing, the trial court explained:

I still am going to deny the request for class certification because, in my mind, the class issues do not predominate. There are certainly some important class issues that are there and that exist, but, when the rubber meets the road, what happens from shift to shift, from nurse to nurse, from nurse type to nurse type, from census to census and so on, and so on it goes, if we had a class the generalities of what happened at Lourdes or what happens at Lourdes, I believe, would consume and overrun the specifics.
So, I don't find that the class issues predominate because those specifics are just so important to really understand what's *517going on in the hospital there. I will say if I were to order a class it would have to include these nine sub classes, which then in my mind would mean that the class would be unmanageable. How do you try a case with nine sub classes and keep it all straight?

2 Verbatim Report of Proceedings (VRP) (Apr. 10, 2015) at 406-07.

¶ 14 The trial court failed to set forth factual findings that would support an order denying class certification and failed to identify the evidence it reviewed to support its decision. The trial court's listing of potential categories of putative class members does not suffice as articulate reasoning for its conclusion that the nurses failed to show common issues predominate over individual questions. See Wash. Educ. Ass'n , 93 Wash.2d at 793, 613 P.2d 769. The trial court's decision seems to be driven solely by the belief that having plaintiff-nurses from nine departments would make this class unmanageable. But manageability is only one of the CR 23 criteria a trial court must reference when making a certification decision. See Sitton v . State Farm Mut. Auto Ins. Co. , 116 Wash.App. 245, 257, 63 P.3d 198 (2003). Because the trial court failed to support its CR 23 analysis with sufficient factual findings and adequate reference to the CR 23 criteria,7 we review the trial court's decision without affording it the traditional degree of deference.8

¶ 15 The law requires Lourdes to schedule breaks at regular intervals unless the "nature of the work" allows employees to take intermittent rest periods.

*518WAC 296-126 -092(4), (5) ; see Lopez Demetrio v. Sakuma Bros. Farms, Inc. , 183 Wash.2d 649, 658, 355 P.3d 258 (2015) ("It is not enough for an employer to simply schedule time throughout the day during which an employee can take a break if he or she chooses. Instead, employers must affirmatively promote meaningful break time. A workplace culture that encourages employees to skip breaks violates WAC 296-126-092 because it deprives employees of *231the benefit of a rest break 'on the employer's time.' " (citations omitted) ). The law also requires Lourdes to compensate nurses for all missed breaks. See, e.g., Wingert v. Yellow Freight Sys ., Inc. , 146 Wash.2d 841, 849-51, 50 P.3d 256 (2002). Plaintiff-witnesses affirmed under oath that there was no system in place to ensure they received breaks and that the nature of their duties did not allow them to take intermittent breaks. Plaintiff-witnesses also affirmed under oath that they were never paid for missed breaks because there was no system in place that allowed them to record missed breaks.9 Thus, the dominant and overriding issue common to all putative class members is whether Lourdes failed to ensure nurses could take breaks and record missed breaks.10

¶ 16 The trial court ruled that the nurses could not satisfy the predominance requirement because of the individual issues regarding nurse type and shift length. But the court failed to explain how the differences between nurse type and shift length would be relevant to a determination of whether the hospital maintained an adequate system for ensuring that nurses could take breaks and record missed *519breaks.11 Factors such as nurse type and shift length are relevant to a damages calculation because they help the court determine how many breaks a nurse was entitled to-but those factors are not relevant to determining the hospital's liability regarding its obligation to comply with WAC 296-126-092 or pay nurses for missed breaks. Furthermore, it is not necessary to prove each plaintiff's damages on an individual basis; it is possible to assess damages on a class-wide basis using representative testimony like in Pellino v. Brink's, Inc. 164 Wash.App. 668, 684, 267 P.3d 383 (2011). See Moore v. Health Care Auth. , 181 Wash.2d 299, 307-08, 332 P.3d 461 (2014) ("When liability has already been established, it is not necessary for each plaintiff in a class action to prove the amount of damages on an individualized basis.").

¶ 17 "[T]he predominance requirement is not defeated merely because individual factual or legal issues exist; ... '[a] single common issue may be the overriding one in the litigation, despite the fact that the suit also entails numerous remaining individual questions.' " Miller , 115 Wash.App. at 825, 64 P.3d 49 (third alteration in original) (quoting 1 HERBERT B. NEWBERG & ALBA CONTE, NEWBERG ON CLASS ACTIONS , § 4.25, at 4-85, 4-84 (3d ed. 1992) ). We find that the individual issues in this case do not override the central, predominant issue of whether Lourdes failed to ensure its nurses could take breaks and record missed breaks. We therefore overturn the trial court's finding that the nurses failed to satisfy the predominance requirement and remand for findings consistent with this opinion.12

*520B. The trial court abused its discretion by ruling that the nurses failed to satisfy the superiority requirement

¶ 18 The superiority requirement focuses on a comparison of available alternatives and a determination that a class action is superior to, not just as good as, other available methods.13 Schnall , 171 Wash.2d at 275, 259 P.3d 129. The inquiry must involve rigorous analysis and articulate application of *232the CR 23 criteria to the relevant facts. Miller , 115 Wash.App. at 820, 64 P.3d 49 ; Wash. Educ. Ass'n , 93 Wash.2d at 793, 613 P.2d 769.

¶ 19 The trial court ruled that the nurses had not satisfied the superiority prong of CR 23(b)(3) :

The Court also finds that a class action is not superior to alternatives such as joinder or individual lawsuits for fair and efficient adjudication of the claims. Finally, the Court also finds that the proposed class, or the proposed nine subclasses by department, would be unmanageable at trial.

CP at 1012. At the certification hearing, the court explained:

[T]he class would not be a superior because of that confusion that could arise from trying to manage nine sub classes, and I think those sub classes would be essential because of the differences in each of these different departments in the hospital.

2 VRP (Apr. 10, 2015) at 407.

¶ 20 While the trial court concluded that a class action is not superior to joinder or individual lawsuits, it did not explain why. As a general rule, joinder is impracticable where a class contains at least 40 members. See Miller , 115 Wash.App. at 821, 64 P.3d 49. Because this lawsuit involves well over 40 *521plaintiffs, we hold that a class action is superior to joinder for the resolution of these claims.14

¶ 21 The trial court also ruled that a class action would be unmanageable.15 But the fact that individual issues might take some time to resolve does not make a class action unmanageable. See Miller , 115 Wash.App. at 825-26, 64 P.3d 49 ; 1 NEWBERG & CONTE , supra , § 4.25, at 4-83.16 Trial courts have a "variety of procedural options to reduce the burden of resolving individual damage issues, including bifurcated trials, use of subclasses or masters, pilot or test cases with selected class members, or even class decertification after liability is determined." Sitton , 116 Wash.App. at 255, 63 P.3d 198.

¶ 22 Lourdes' primary argument regarding manageability is that operational differences between nursing departments makes a class action unmanageable because the duties performed by one nurse at Lourdes cannot be generalized to all other nurses. However, the United States Supreme Court has rejected a similar operational differences defense in Tyson Foods, Inc. v. Bouaphakeo , --- U.S. ----, 136 S.Ct. 1036, 194 L.Ed. 2d 124 (2016). In Tyson, workers sued their employer because they were not being *522compensated for time spent donning and doffing protective gear. Id. at 1042. The common question was whether time spent donning and doffing gear was compensable under the Fair Labor Standards Act of 1938, 29 U.S.C. §§ 201 - 219. Id. at 1046. Each worker's specific task determined how much time he or she would spend donning and doffing gear, thereby creating individual issues relating to damages. Id. at 1043-44.

¶ 23 The operational differences between the different types of workers in Tyson is analogous to the operational differences between the different types of nurses in this case. The Court in Tyson affirmed class certification *233for practically the same reasons urged by the nurses here-representative testimony and trial bifurcation could be used to manage the individual issues relating to damages. Id. at 1044-50. Guided by this decision, we hold that the differences between nurse type and shift length do not make a class action unmanageable because those issues can be resolved effectively using traditional class management tools.17 See Klay v. Humana, Inc. , 382 F.3d 1241, 1272-73 (11th Cir. 2004) (holding that manageability concerns "will rarely, if ever, be in itself sufficient to prevent certification of a class"); In re Managed Care Litig. , 209 F.R.D. 678, 692 (S.D. Fla. 2002) ("Courts are generally reluctant to deny class certification based on speculative problems with case management."). We therefore reverse the trial court's decision that the class action would be unmanageable. See Miller , 115 Wash.App. at 820, 64 P.3d 49 ; Wash. Educ. Ass'n , 93 Wash.2d at 793, 613 P.2d 769.

¶ 24 In the interests of judicial economy, and in order to guide the court on remand, we address the superiority requirement directly and hold that a class action is superior to other methods of adjudication for the resolution *523of this case. See Wash. Educ. Ass'n , 93 Wash.2d at 793, 613 P.2d 769 ; Miller , 115 Wash.App. at 823-24, 64 P.3d 49.

¶ 25 The other CR 23(b)(3) factors, in addition to manageability, also weigh in favor of finding that a class action is superior to other methods of adjudication. The first factor considers the interest of each member in "individually controlling the prosecution or defense of separate actions." CR 23(b)(3)(A). Where individual damages are small, the class vehicle is usually deemed to be superior. See 2 WILLIAM B. RUBENSTEIN, NEWBERG ON CLASS ACTIONS § 4:87, at 363-65 (5th ed. 2012) ("[I]n a small claims case, a court can typically fulfill its entire function simply by stating that the case involves small claims. That implies that there is no alternative form of litigation, and ... [that] 'the class action is necessarily the superior method of adjudication.' " (footnote omitted) ). Here, the individual claims of class members are small and well suited for class-wide resolution. Id. § 4:88, at 370 ("[S]mall claims cases somewhat automatically meet the test that a class suit is superior to other forms of adjudication."). The nurses have an interest in litigating their claims together because each nurse's claim arises from a common nucleus of operative facts and relies on the same evidence. "[F]orcing numerous plaintiffs to litigate the alleged pattern or practice ... in repeated individual trials runs counter to the very purpose of a class action." See Sitton , 116 Wash.App. at 256-57, 63 P.3d 198.

¶ 26 The Court of Appeals suggested that the claims under $5,000 should be litigated in small claims court. See Chavez , No. 33556-9-III, slip op. at 38. However, small claims court is not an appropriate forum for the litigation of 100 wage and hour claims because these claims implicate important public safety issues. See, e.g., Lopez Demetrio , 183 Wash.2d at 658-59, 355 P.3d 258 (holding that meal and rest period obligations implicate important public safety issues); Wash. State Nurses Ass'n v. Sacred Heart Med. Ctr. , 175 Wash.2d 822, 832, 287 P.3d 516 (2012) (same); Pellino , 164 Wash.App. at 688, 267 P.3d 383 (same). Small claims courts have limited discovery *524tools and a rule against attorney representation, increasing the risk of inconsistent results. RCW 12.40.080. Federal courts regularly dismiss a defendant's suggestion that the possibility of small claims court cases is superior to a class action because the litigation may still be time consuming and complex. See, e.g., Sandusky Wellness Ctr., LLC v . MedTox Sci., Inc ., 250 F.Supp.3d 354, 362 (D. Minn. 2017) ; A&L Indus., Inc. v. P. Cipollini, Inc ., No. CIV. A. 12-07598 SRC, 2013 WL 5503303, at *4-*5 (D.N.J. Oct. 2, 2013) (unpublished).18 *234¶ 27 The second factor considers "the extent and nature of any litigation concerning the controversy already commenced." CR 23(b)(3)(B). Lourdes is not involved in other litigation regarding its meal and break policies. Therefore, this factor favors certification.

¶ 28 The third factor concerns the desirability "of concentrating the litigation of the claims in the particular forum." CR 23(b)(3)(C). Concentrating these claims into one forum and certifying this class is likely the only way that the nurses' rights will be vindicated because individual nurses may be reluctant to sue their employers. Scott v. Aetna Servs., Inc. , 210 F.R.D. 261, 268 (D. Conn. 2002) ("[C]lass members may fear reprisal and would not be inclined to pursue individual claims."). Individual nurses likely do not have the bargaining power to achieve systemic victories-but here, merely filing this class action appears to have caused Lourdes to uniformly change its break tracking procedures and implement a new accounting system.

¶ 29 Each of the CR 23(b)(3) factors weighs in favor of finding that a class action is superior to alternative methods *525of adjudication such as joinder or small claims court. We remand to the trial court with instructions to certify the class.

IV. CONCLUSION

¶ 30 We reverse the Court of Appeals and overturn the trial court's denial of certification. We remand to the trial court with instructions to certify.

WE CONCUR:

Johnson, J.

Madsen, J.

Owens, J.

Stephens, J.

Wiggins, J.

González, J.

Gordon McCloud, J.

Yu, J.