govinfo:USCOURTS-casd-3_24-cv-01058-1

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UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF CALIFORNIA 
 
JOSE DE LA CERDA, on behalf of others 
similarly situated, 
Plaintiff, 
v. 
SAN DIEGO CONVENTION CENTER 
CORPORATION, INC., 
Defendant. 
 Case No.:  3: 24-cv-1058-CAB-DDL 
 
ORDER PARTIALLY GRANTING 
MOTION TO CONDITIONALLY 
CERTIFY COLLECTIVE ACTION 
 
[Doc. No. 32] 
 
 Before the Court is a Motion for Conditi onal Certification and Approval of Notice 
filed by Plaintiff Jose De La Cerda (“Plaintiff” or “De La Cerda”).  [Doc. No. 32.]  For the 
following reasons, the Court PARTIALLY GRANTS the motion for the limited purposes 
of providing notice to prospective collective action members as described in detail below.   
I. BACKGROUND 
On June 19, 2024, Plaintiff filed this Co llective Action Complaint under the Fair 
Labor Standards Act (“FLSA”).  [Doc. No. 1 (“Complaint”).]  The Complaint alleges that 
Defendant San Diego Conventi on Center Corporation (“SDCCC” or “Defendant”) failed 
to (1) pay all overtime wages and (2) pay employees for all hours worked.   
SDCCC owns and operates the San Diego Convention Center.  Plaintiff is currently 
employed by SDCCC as a Carpenter, has worked for SDCCC since February 2017, and is 
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a member of the Cabinet Makers, Millmen and Industrial Carpenters Local 721, United 
Brotherhood of Carpenters and Joiners of Amer ica (the “Union”).  The Court previously 
denied SDCCC’s motion to compel arbitration based on a collective bargaining agreement 
(“CBA”) between SDCCC and the Union.  [Doc. No. 7.]  Beyond the named Plaintiff, 
SDCCC employs “hundreds of people . . . in nineteen separate de partments,” many of 
whom are represented by unions and subject to other CBAs.   [Doc. No. 33-1 at 2.]   
Plaintiff now asks the Court to conditionally certify a Proposed FLSA Collective as 
follows: 
All current and former non-exempt hourly employees of San Diego 
Convention Center Corporatio n, Inc. who worked in the United States of 
America at any time during the three ye ars preceding the filing of this action 
through the present date. 
[Doc. No. 32-1 at 6.]  Plaintiff alleges that members of this Proposed FLSA Collective are 
similarly situated with respect to three diff erent pay-related policie s: (1) automatic meal 
period deductions; (2) overtime pay calculation; and (3) non-neutral time rounding.  [Doc. 
No. 32-1 at 7–8.]   
Plaintiff also asks the Court to (1) approve a 90-day opt-in period, (2) approve 
Plaintiff’s proposed notice, (3) direct notic e to potential collective members, (4) direct 
SDCCC to post copies of the approved notice in a conspicuous workplace location, (5) 
allow opt-in collective members to submit th eir consent to join through a convenient 
medium, and (6) toll the statute of limitations due to SDCCC’s allegedly bad faith 
discovery delays.  [Doc. No. 32-1 at 6, 13.]    
SDCCC opposes the motion, arguing that due to the size and variance in duties, 
members of the Proposed FLSA Collective ar e not similarly situated.  SDCCC further 
contends that if the Court certifies the Proposed FLSA Collective, it should not approve 
Plaintiff’s notice or process, nor toll the statute of limitations. 
II. LEGAL STANDARD 
The FLSA provides for a private right of action to enforce its provisions “by any one 
or more employees for and in behalf of himself or themselves and other employees 
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similarly situated.”  29 U.S.C. § 216(b).  However, unlike class actions under Federal Rule 
of Civil Procedure 23, the FLSA requires putative collective action plaintiffs to “opt-in” to 
the collective: “[n]o employee shall be a party plaintiff to any such action unless he gives  
his consent in writing to become such a party and such consent is filed in the court in which 
such action is brought.”  Id.  “Determining whether a collect ive action is appropriate is 
within the discretion of the district court.”  Leuthold v. Destination Am., Inc. , 224 F.R.D. 
462, 466 (N.D. Cal. 2004).   
The Ninth Circuit employs a two-stage appr oach to collective action certification: 
(1) preliminary certification and (2) decertification.  Campbell v. City of Los Angeles, 903 
F.3d 1090, 1100, 1110 (9th Cir. 2018).  At th e first stage, preliminary or conditional 
certification, the district court evaluates wh ether the identified co llective is “similarly 
situated.”  The burden at the first step is “light” and “requires nothing more than substantial 
allegations that the putative class members were  together the victims of a single decision, 
policy, or plan.”   Colson v. Avnet, Inc., 687 F. Supp. 2d 914, 925 (D. Ariz. 2010) (cleaned 
up).  “Given the light burden, motions to conditionally certify a class for notification 
purposes are typically granted.”  Id. (internal quotation marks omitted). 
“In exercising the discretionary authority to oversee the notice-giving process, courts 
must be scrupulous to respect judicial neutrality.  To that end, trial courts must take care to 
avoid even the appearance of judicial endorsement of the merits of the action.”  Hoffman-
La Roche Inc. v. Sperling, 493 U.S. 165, 174 (1989).   
III. DISCUSSION 
A. Ripeness 
Defendant argues at the threshold that the issues presented in Plaintiff’s motion are 
not ripe for adjudication and the Court should decline to c onditionally certify a collective 
for prudential reasons.  [Doc. No. 33 at 4–5.]  In particular, Defendant argues that Plaintiff 
and other proposed collective members are subj ect to CBAs that require them to follow a 
specific grievance procedure before filing suit.  As Plaintiff correctly highlights, this Court 
already considered and rejected this argume nt in denying Defendant’s motion to compel 
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arbitration because “Plaintiff’ s FLSA claims do not fall with in the scope of the CBA.”  
[Doc. No. 7 at 4.]   
B. Similarly Situated 
At the conditional certification stage, Plai ntiff must show that he and the Proposed 
FLSA Collective members are “similarly situated.”  The Court finds that Plaintiff has met 
this burden to conditionally certify a Proposed FLSA Collective with respect to SDCCC’s 
alleged non-neutral rounding a nd overtime pay calculation practices, but not the alleged 
automatic meal deduction practice.   
Regarding the non-neutral rounding practice,  Plaintiff alleges that SDCCC used a 
non-neutral rounding system that encouraged unpaid time rounding but “expressly forbid” 
paid time rounding.  [Doc. No . 32-1 at 8.]  In support he shows via his paystubs from 
February 15, 2024 to April 24, 2024 that unpaid  rounding (2.06 hours) exceeded paid 
rounding (0.18 hours) by more than tenfold.  [Doc. No. 32-3 at ¶¶ 9–12.]  Plaintiff also 
alleges that “other hourly employees of SDCCC were also subject to the time rounding 
policies and procedures that I was exposed to.”  [Id. at ¶ 12.]   
Defendant does not contest Plaintiff’s calculations on the merits
1, nor offer evidence 
supporting that Plaintiff’s rounding wa s an outlier from other employees.  Instead, 
Defendant argues that the FLSA  does not prohibit rounding; it is only when an employer 
always rounds down that a violation occurs.  [Doc . No. 33 at 8.]  This is an argument on 
the merits of Plaintiff’s claim, which the Court rejects because conditional certification “is 
not the time to conduct ‘an in-depth examination of the underlying merits’ or ‘to determine 
whether class members could actually prevail on the merits of their claims.’ ‘To hold 
otherwise would turn class certification into a mini-trial.’”  Tapia v. Zale Delaware Inc. , 
 
1 Defendant does take issue with the declaration itself as self-serving, lacking foundation, and calling for 
speculation.  [Doc. No. 33 at 7–8; Doc. No. 33-3 (Objections to Pl aintiff’s Proffered Evidence in 
Opposition to Motion for Conditional Ce rtification).]  Defendant provides no legal basis to exclude 
Plaintiff’s declaration under the Federal Rules of Evidence at this stage of the litigation.   
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No. 13-CV-1565-BAS (PCL), 2016 WL 1385181, at *3 (S.D. Cal. Apr. 6, 2016) (quoting 
Ellis v. Costco Wholesale Corp., 657 F.3d 970, 983 n.8 (9th Cir. 2011)).  
Regarding the calculation of overtime, Pl aintiff alleges via his declaration and 
paystubs that SDCCC did not include his non- discretionary pay (e.g ., differential pay or 
non-discretionary bonuses) in th e calculation of his regular rate of pay for a given pay 
period.  [Doc. No. 32-1 at 7–8 (citing Doc. No. 32-3 at ¶¶ 6–8).]  Defendant’s arguments—
that any bonuses or salary increases are discretionary and the various CBAs specify 
differential rates of pay [Doc. No. 33 at 7]—are again aimed at  the merits of Plaintiff’s 
claims and not whether putative collective me mbers were victims of  a uniform practice 
with respect to the calculation of overtime based on the regular versus the base rate of pay.   
On the other hand, the Court does not find that Plaintiff has met his burden with 
respect to SDCCC’s alleged meal break de duction practices.  Plaintiff alleges that 
employees would “simply mark whether [they] were able to take a lunch or not, and 
SDCCC would automatically deduct thirty (30) minutes from [their] hours for that shift.”  
[Doc. No. 32-3 at ¶ 5.]  He further alleges that “[o]ccasionally, [he] would quickly eat [his] 
lunch and get back to work du e to operational pressure.”  [ Id.]  This vague allegation of 
“operational pressure” does not show a uniform policy or practice that applied to any other 
employee, let alone to employees in at least eighteen other SDCCC departments.  See 
Delnoce v. Globaltranz Enters., Inc. , No. CV-17-01278-PHX-MHB, 2017 WL 4769529, 
at *5 (D. Ariz. Sept. 25, 2017) (“The declarations of the named Plaintiff are . . . vague, 
conclusory, and, more importantly, are silent where one would expect important detail.”).   
For the foregoing reasons, Plaintiff has met the lenient notice-stage standard for 
conditional certification with respect to Defendant’s alleged rounding and overtime 
calculation practices.  If, after the close of discovery, it becomes apparent that these claims 
should be pursued on an individual basis, Defendant may move to decertify the collective.  
Accordingly, the Court GRANTS Plaintiff’s motion for conditional certification of a 
collective under the FLSA with respect to De fendant’s alleged non-neutral rounding and 
overtime calculation practices. 
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C. Proposed Notice 
Defendant objects to Plaintiff’s proposed notice and provides its own version.  
Plaintiff’s reply raises no specific objections to  Defendant’s version.  [Doc. No. 34 at 7.]  
The Court has reviewed both proposed notices  and finds that Defendant’s version has a 
neutral tone, describes the natu re of the action and the import of choosing or declining to 
opt-in, and makes clear that th e Court has not ruled on the merits of the case.  The Court 
therefore orders that notice be provided using Defendant’s proposed notice, with the 
exception of changing the 60-day response period to a 90-day one and providing an email 
address where opt-in forms can be submitted electronically.  [Doc. No. 33-4 at 142–45.]   
As to how the notice will be distributed to  the Proposed FLSA Collective, Plaintiff 
proposes providing notice by requiring Defenda nt to (1) post the notice in one or more 
conspicuous places on the grounds of SDCC and (2) provide the notice to each employee 
with their paycheck.  [Doc. No. 32-1 at 12–13. ]  Defendant objects because it has already 
“produced the name, address, phone number, and email address of all requested employees, 
excluding those who opted out of the Belaire process.”  [Doc. No. 33 at 9.]  Defendant 
instead proposes providing notice by email.   
The Court deems notice by email sufficien t.  Plaintiff may email the potential 
collective members for whom Plaintiff has re ceived email addresses.  Plaintiff may 
additionally identify any employees for w hom no email address has been produced by 
Defendant and provide a list of those employees to Defendant.  Defendant must then mail 
a copy of the notice to the employee’s address.  The Court denies Plaintiff’s request to post 
the notice in the San Diego Convention Center because Plaintiff has not shown how that 
would reach potential collective members not otherwise notified as outlined above.       
D. Tolling the Statute of Limitations 
Equitable tolling of a statute of limitations is appropriate where the plaintiff is 
prevented from asserting a claim due to a defendant’s wrongful conduct or when 
extraordinary circumstances beyond the plain tiff’s control caused an innocent delay.  See 
Stoll v. Runyon, 165 F.3d 1238, 1242 (9th Cir. 1999).  Here, Plaintiff asks the Court to toll 
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the statute of limitations for all individuals  who ultimately opt-in to the Proposed FLSA 
Collective from June 19, 2024, the date Plaintiff filed his complaint, to the date of the 
Court’s decision conditionally certifying the collective and approving notice, plus an 
additional fifty-five days to account for SDCCC’s alleged discovery delays.  [Doc. No. 32-
1 at 13–14.]   
Plaintiff first propounded discovery on Janua ry 28, 2025, but the parties agreed to 
participate in mediation and so stayed discovery until July 7, 2025.  [Doc. No. 32-1 at 13; 
Doc. No. 33 at 9.]  SDCCC ultimately comp leted production on Fe bruary 27, 2026 and 
Plaintiff filed this motion on March 11, 2026.  The Court does not find any wrongful 
conduct by SDCCC that warrants equitable tolling, particularly when, as SDCCC 
highlights, the documents submitted by Plaintiff in support of this motion were produced 
to Plaintiff before this action was filed a nd again on July 21, 2025 in connection with the 
parties’ mediation.  [Doc. No. 33 at 9–10.]   
Instead, the Court finds it in the interest of  justice to equitably toll the statute of 
limitations for opt-in members of the collective for the time the arbitration motion and this 
certification motion were pending before the Court, as well as the time spent by the parties 
in mediation.  This comports with Plaintiff’s cited cases, where the courts tolled the statute 
of limitations for the period that the motion for conditional certifi cation was pending.  
McNutt v. Swift Transportation Co. of Arizona, LLC , No. C18-5668 BHS, 2020 WL 
3819239, at *10 (W.D. Wash. July 7, 2020); Carlson v. United Nat. Foods, Inc., No. C20-
5476-JCC, 2021 WL 3616786, at *6 (W.D. Wash. Aug. 14, 2021); Douglas v. Xerox Bus. 
Servs., LLC, No. C12-01798-JCC, 2014 WL 11320703, at *4 (W.D. Wash. Nov. 21, 2014), 
order clarified, No. C12-01798-JCC, 2015 WL 12930486 (W.D. Wash. Feb. 9, 2015).   
The Court thus equitably tolls the state of limitations for 390 days, which accounts 
for the time (1) the motion for conditional cer tification was fully briefed and pending 
before the Court (April 8, 2026 – June 18, 2026); (2) the prior motion to compel arbitration 
was fully briefed and pending before the Court (September 16, 2024 – December 10, 2024); 
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and (3) the case was stayed while the partie s jointly pursued mediation (February 6, 2025 
– September 26, 2025).      
IV. CONCLUSION 
For the reasons set forth above, the motion to conditionally certify the Proposed FLSA 
Collective is PARTIALLY GRANTED and the Court ORDERS notice to be provided 
according to this Order. 
 IT IS SO ORDERED. 
Dated:  June 18, 2026  
 
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