Judge: Daniel S. Murphy, Case: 23STCV18233, Date: 2025-03-14 Tentative Ruling

Case Number: 23STCV18233    Hearing Date: March 14, 2025    Dept: 32

BACKGROUND

            On August 2, 2023, Plaintiff Lawrence “Leon” Gibbs Avramidis filed this employment action against Defendants Ildico Inc. and Jean “John” Simonian. Plaintiff filed the operative Second Amended Complaint on June 10, 2024. The SAC asserts 19 causes of action pertaining to: wage and meal/rest break violations; breach of contract and the covenant of good faith; discrimination, harassment, and retaliation; unfair competition; and PAGA penalties.

            On December 19, 2024, Plaintiff filed the instant motion for summary adjudication of his third, fourth, sixth, seventh, and ninth causes of action. Defendants filed their opposition on February 21, 2025. Plaintiff filed his reply on March 3, 2025.

LEGAL STANDARD

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code of Civil Procedure section 437c, subdivision (c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”  (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.)

As to each claim as framed by the complaint, the plaintiff moving for summary judgment must satisfy the initial burden of proof by presenting facts to establish each element of the cause of action. (Code Civ. Proc., § 437c, subd. (p)(1).) Once the plaintiff has met that burden, the burden shifts to the defendant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. (Code Civ. Proc., § 437c, subd. (p)(1).) To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

EVIDENTIARY OBJECTIONS

Plaintiff’s Objections

• Objection Nos. 1, 5, 6, 47, and 107 are overruled.

• The remaining objections are duplicative or not pertinent to the Court’s ruling on the motion. (See Code Civ. Proc., § 437c(q).)

• The Court does not consider Plaintiff’s objections to Defendant’s statement of additional facts because Plaintiff objects to the separate statement as opposed to specific items of evidence. The objections fail to quote or set forth the objectionable material. (See Cal. Rules of Ct., Rule 3.1354(b)(3).)  

DISCUSSION

I. Rest and Meal Breaks (Third and Fourth COAs)

            a. Statutory Framework

“An employer shall not require an employee to work during a meal or rest or recovery period mandated pursuant to an applicable statute, or applicable regulation, standard, or order of the Industrial Welfare Commission.” (Lab. Code, § 226.7(a).) Under IWC Wage Order 7-2001, Section 12(A), an employer must authorize and permit all employees to take 10-minute duty-free rest periods for every 4 hours worked. Under IWC Wage Order 7-2001, Section 11(A), an employer must provide a meal period of at least 30 minutes if the work period is over 5 hours.

If an employer fails to provide the requisite meal or rest breaks, it must pay the employee a premium consisting of “one additional hour of pay at the employee’s regular rate of compensation for each workday that the meal or rest or recovery period is not provided.” (Lab. Code, § 226.7(c).)  

            b. Defendant’s Policy

            In this case, Defendant had the following meal and rest break policy:

·       Non-exempt employees are entitled to a 30-minute uninterrupted meal break if working more than 5 hours in a workday;

·       If a non-exempt employee works 10 hours or more in one workday, they will be scheduled a second 30-minute meal break;

·       Non-exempt employees also are authorized and permitted to take a separate 10-minute rest break for every 4 hours of work;

·       Non-exempt employees may not skip their breaks or perform any work during their breaks; and

·       Non-exempt employees otherwise are fully relieved of their job responsibilities for their breaks and meal periods.

(Def.’s Ex. F.)

            Defendant’s policy also states the following regarding who is exempt or non-exempt from the meal and rest break requirements: “exempt employees are exempt from federal and state break and overtime laws and are generally paid a fixed amount of pay for each workweek in which work is performed.” (Plntf.’s Stmt. of Undisputed Facts (UF) 6.) Besides commissions, Plaintiff was paid a fixed amount each workweek. (UF 7.) However, Plaintiff was classified as a “salaried non-exempt employee.” (Cohen Decl. ¶ 6.)

            c. Defendant’s Purported Violation

            Plaintiff contends that because he was paid a fixed amount weekly, it appeared as though he was an exempt employee under the definition contained in Defendant’s policy. Defendant’s policy did not specifically state that commission-earning salespersons like Plaintiff were actually non-exempt. (UF 11, 26.) Because of this, Plaintiff believed that he was an exempt employee. (UF 4.) Plaintiff argues that Defendant is liable as a matter of law because it did not schedule meal or rest periods for Plaintiff and then failed to pay Plaintiff the requisite premiums for the missed breaks. (UF 9, 12, 24, 27.)

            Plaintiff relies on two cases for support. First, the court in Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004 stated the following:

“An employer is required to authorize and permit the amount of rest break time called for under the wage order for its industry. If it does not—if, for example, it adopts a uniform policy authorizing and permitting only one rest break for employees working a seven-hour shift when two are required—it has violated the wage order and is liable. No issue of waiver ever arises for a rest break that was required by law but never authorized; if a break is not authorized, an employee has no opportunity to decline to take it.”

(Id. at p. 1033.)

Second, the court in Alberts v. Aurora Behavioral Health Care (2015) 241 Cal.App.4th 388, 410 further confirmed that “[i]f an employer fails to provide legally compliant meal or rest breaks, the court may not conclude employees voluntarily chose to skip those breaks.”

Plaintiff argues that Defendant failed to provide the requisite meal and rest breaks because Defendant’s policy “suggests” that Plaintiff is exempt from breaks without clarifying that commission-based salespersons like Plaintiff are in fact non-exempt. (Mtn. 13:26-14:1.) Plaintiff argues that as a result, Defendant did not “authorize and permit” or “provide” the opportunity to take breaks as required under Brinker and Alberts. (Mtn. 14:4-7.)

However, Plaintiff cites no authority finding a violation of the wage orders based on an employee’s subjective interpretation of his status as exempt or non-exempt. Defendant’s policy states that exempt employees “are generally paid a fixed amount of pay for each workweek.” (UF 6.) It does not state that all fixed-pay employees are exempt, nor does it state that commission-based salespeople are exempt. Plaintiff merely “believed” that he was an exempt employee based on his reading of this provision. (UF 4.) Defendant’s evidence shows that it actually classified Plaintiff as a “salaried non-exempt employee.” (Cohen Decl. ¶ 6.) Plaintiff cites no evidence that he was told otherwise or told that he did not qualify for meal and rest breaks. Plaintiff does not claim that he was unaware of the policy providing for meal and rest breaks for non-exempt employees. (See Def.’s Ex. F.)

As shown above, Defendant’s policy arguably provides for meal and rest breaks in accordance with the wage orders. (See Def.’s Ex. F.) Under Brinker, Defendant was not required to ensure that Plaintiff actually took breaks. “[A]n employer must relieve the employee of all duty for the designated period, but need not ensure that the employee does no work.” (Brinker, supra, 53 Cal.4th at p. 1034.) “Proof an employer had knowledge of employees working through meal periods will not alone subject the employer to liability for premium pay.” (Id. at p. 1040.) “The employer satisfies [its] obligation if it relieves its employees of all duty, relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted 30-minute break, and does not impede or discourage them from doing so.” (Ibid.) “[T]he employer is not obligated to police meal breaks and ensure no work thereafter is performed.” (Ibid.)

A reasonable trier of fact may find that Defendant’s policy complies with the law by providing for uninterrupted, work-free breaks of the correct duration. (See Def.’s Ex. F.) Plaintiff does not cite any evidence showing that he was interrupted or discouraged from taking the requisite breaks. Plaintiff cites no evidence that he was misclassified as an exempt employee or falsely told that he was an exempt employee. A reasonable trier of fact may find that the policy’s description of exempt employees did not cause Plaintiff to be deprived of meal and rest breaks.

d. Plaintiff Took Breaks

Further contributing to a triable issue is the fact that Plaintiff actually took breaks. For example, Plaintiff testified that he clocked out for lunch breaks to eat and walk around. (Def.’s Ex. B at 181:18-182:14.) Plaintiff also acknowledged that he sometimes left for a coffee shop during work hours. (Id. at 185:1-12.) Plaintiff’s declaration admits that he “did take breaks from [his] work.” (Avramidis Decl. ¶ 4.) Plaintiff was also observed by others taking breaks from work. (Ozpembe Decl. ¶ 4.)

This evidence suggests that Plaintiff actually took breaks, thus supporting a reasonable inference that he was provided with breaks in compliance with the law. Plaintiff cites no authority for the proposition that non-exempt employees must be specifically “trained” on their non-exempt status or on their entitlement to breaks. (See Avramidis Decl. ¶ 4.) Plaintiff does not cite any authority suggesting that an employer is required to schedule breaks for the employee. Plaintiff does not claim that he was unaware of the policy providing for meal and rest breaks. (See Def.’s Ex. F.) At the very least, the evidence is sufficient to raise a triable issue.

Therefore, summary adjudication of the meal and rest break claims is unwarranted.    

II. Timely Payment of Wages (Sixth COA)

            The Labor Code provides the following guidelines for the bimonthly payment of wages: “Labor performed between the 1st and 15th days, inclusive, of any calendar month shall be paid for between the 16th and the 26th day of the month during which the labor was performed, and labor performed between the 16th and the last day, inclusive, of any calendar month, shall be paid for between the 1st and 10th day of the following month.” (Lab. Code, § 204(a).) Commissions are “wages” falling under this requirement. (Id., § 200(a); Peabody v. Time Warner Cable, Inc. (2014) 59 Cal.4th 662, 668.)

            Here, Defendant’s policy on commissions provides the following: “Commissions are paid out by the second or third payroll following the close of the prior month.” (Plnf.’s Ex. F.) Plaintiff contends that this is inconsistent with the payday deadlines imposed by Labor Code section 204(a). Therefore, Plaintiff argues that every commission paid to him (totaling $217,997.74) was necessarily late. Plaintiff seeks 25% of $217,997.74 as a penalty for the late payments. (See Lab. Code, § 210(a)(2).)

            However, “[c]ommission programs which calculate the amount owed once a month (or less often) are common” because “commissions are not earned or owed until agreed-upon conditions have been satisfied.” (Peabody, supra, 59 Cal.4th at p. 668.) “For example, . . . an employment agreement may require receipt of a client's payment before any commissions . . . are earned.” (Ibid.) “[T]here is no obligation to pay unearned commission wages in any pay period. Commissions are owed only when they have been earned, even if it is on a monthly, quarterly, or less frequent basis.” (Ibid.) It is not a violation of Labor Code section 204(a) for commissions to be earned and owed once a month or less. (Ibid.)

            Defendant’s policy states: “Not until the sale is complete, deposit has been applied, the transaction has been paid in full and product delivered to customer, then commission will be calculated.” (Plntf.’s Ex. F.) “No commission is earned or paid on deposits, or orders on hold.” (Ibid.) Plaintiff cites no evidence of when his commissions were earned and owed under this policy, thus leaving a triable issue.  

Evidence of payments totaling $217,997.74 does not prove as a matter of law that each payment was late. Plaintiff takes the total commissions that he was paid throughout his employment and then assumes, based on his reading of Defendant’s policy, that every payment was necessarily late. This speculation is not sufficient for summary adjudication. Plaintiff has not foreclosed the possibility that at least some payments were timely.

            Therefore, summary adjudication is unwarranted as to the late payments claim.

III. Failure to Pay Upon Separation (Seventh COA)

            “If an employer willfully fails to pay, without abatement or reduction, in accordance with Sections 201, 201.3, 201.5, 201.6, 201.8, 201.9, 202, and 205.5, any wages of an employee who is discharged or who quits, the wages of the employee shall continue as a penalty from the due date thereof at the same rate until paid or until an action therefor is commenced; but the wages shall not continue for more than 30 days.” (Lab. Code, § 203(a).)

            Plaintiff argues that he is entitled to waiting time penalties as a matter of law because Defendant failed to pay his meal and rest break premiums for at least 30 days after separation. (Mtn. 17:26-18:4.) However, as discussed above, there is a triable issue on whether Defendant violated the meal and rest break laws and thus owed premiums.

            Therefore, summary adjudication is unwarranted on the waiting time penalties claim. 

IV. Wage Statements (Ninth COA)

            An employer must provide an itemized wage statement, semimonthly or at the time wages are paid, containing, inter alia, the “total hours worked by the employee” and “all applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate.” (Lab. Code, § 226(a)(1), (a)(9).)     

Plaintiff argues that Defendant violated this requirement by providing wage statements showing a flat amount instead of specific hours and hourly rates. (UF 49-50.) Plaintiff seeks penalties as provided in Labor Code section 226(e)(1). However, that provision only allows penalties for “a knowing and intentional failure” to comply with subdivision (a). “[A]n employer’s good faith belief that it is not violating section 226 precludes a finding of a knowing and intentional violation.” (Naranjo v. Spectrum Security Services, Inc. (2023) 88 Cal.App.5th 937, 949.) This is an inherently factual question. Plaintiff cites no evidence establishing as a matter of law that Defendant acted knowingly and intentionally and lacked any good faith belief.

Thus, summary adjudication is unwarranted on the inaccurate wage statements claim.

CONCLUSION

            Plaintiff’s motion for summary adjudication is DENIED.