First, the Court rejected defendant’s claim that numerosity could not be satisfied based solely on the named plaintiff’s declaration testimony that “he has worked alongside at least 40 other Installers” when Defendant was unable to present competing evidence disproving such testimony:
[A]s Plaintiff correctly notes, a "court may consider evidence that may not be admissible at trial," for purposes of certifying a class. Alonzo v. Maximus, Inc., 275 F.R.D. 513, 519 (C.D. Cal. 2011) (internal quotation marks omitted); see also In re Coordinated Pretrial Proc. in Petroleum Prods. Antitrust Litig., 691 F.2d 1335, 1342 (9th Cir. 1982) ("[I]n determining whether to certify the class, the district court is bound to take the substantive allegations of the complaint as true . . . ."). The court therefore finds Plaintiff's allegations in his sworn declaration adequate at this stage…. Moreover, although Defendant questions Plaintiff's proof, Defendant does not actually dispute any of these numbers or claims. Accordingly, the court finds that Plaintiff has met Rule 23(a)'s numerosity requirement.Sibert, 2012 U.S. Dist. LEXIS 118245, at 4-5.
Second, the Court concluded that a challenge to the element of “control” under the Borello test was sufficient to establish commonality/predominance when defendant’s own marketing to customers highlighted the company’s oversight and control over installation as a feature of the services being offered:
Although Defendant may be right that some of the secondary factual inquiries will vary by individual, the court finds that the primary factor - TV Magic's right to control the Installers -as well as most of the secondary indicia, will involve common inquiries across the proposed classes. As discussed, Plaintiff alleges that TV Magic set and paid all of the Installers hourly rates, then assigned them to work together on different job sites, but classified them all as independent contractors. Because Plaintiff bases the proposed classes on these alleged facts, the classes also exclude any installation workers contracted through third parties or categorized by TV Magic as employees. Plaintiff further alleges that he and the other Installers typically worked the same number of hours and overtime hours per week, and performed the same basic job duties: "running cables, installing monitors, and installing and configuring various pieces of broadcast equipment." (Sibert Decl. ¶ 2.) TV Magic's own website suggests other commonalities, including as to the primary "right to control" factor: "We order the equipment"; "we install the equipment in racks and run cable with an experienced crew"; "[a] project manager assures inventory control [and] supports our crews." (Tracy Decl. ¶ 9, Ex. 1.)See Sibert, 2012 U.S. Dist. LEXIS 118245, at 9-10.