Judge: David S. Cunningham, Case: 19STCV43133, Date: 2023-01-05 Tentative Ruling

Case Number: 19STCV43133    Hearing Date: January 5, 2023    Dept: 11

19STCV43133 (Hernandez)

Tentative Ruling Re: Motion for Summary Adjudication

Date:                           1/5/23

Time:                          1:45 pm

Moving Party:           Daisy Hernandez (“Plaintiff”)

Opposing Party:        Lyneer Staffing Solutions, LLC (“Lyneer”)

Department:              11

Judge:                        David S. Cunningham III

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TENTATIVE RULING

Lyneer’s objections to Plaintiff’s UMFs 6, 11, 12, 16, 17, 18, 20, 21, 22, and 23 are overruled (UMFs are not evidence).

Lyneer’s objections to Plaintiff’s Exhibits 2, 3, 5, 12, 13, 15, 17, and 18 are overruled.

Lyneer’s objections to Plaintiff’s Exhibits 8, 10, and 16 are sustained.

Plaintiff’s objections to paragraphs 9, 10, and 11 to the declaration of Stacey Cooper are overruled.

Plaintiff’s objections to Lyneer’s Exhibits G, H, and I are overruled.

Plaintiff’s motion for summary adjudication is denied in full.

BACKGROUND

“Oxgord [Inc. (‘Oxgord’)] is a company in Gardena, California that sells car accessories.  ‘It employs approximately 25 to 55 warehouse employees at any given time.’”  (5/5/22 Notice of Order Granting Plaintiff’s Motion for Class Certification, Ex., p. 1 [attaching 5/5/22 Tentative Ruling Re: Motion for Class Certification].)  “Some of the warehouse employees are employed by Oxgord,” and “a ‘temporary staffing agency’ called Lyneer” allegedly employs the others.  (Ibid.) 

Lyneer employed Plaintiff and placed her to work for Oxgord.  (See Lyneer’s Opposition to Plaintiff’s Separate Statement, UMF 7.)  Plaintiff “claims Oxgord and Lyneer jointly employed her.”  (5/5/22 Notice of Order Granting Plaintiff’s Motion for Class Certification, Ex., p. 1.)  “She alleges that they failed to pay her for the time she spent going through security checks before clocking in and after clocking out.”  (Ibid.) 

“Instead of paying wages, Plaintiff claims [Oxgord and Lyneer] ‘add[] five minutes to each of the two 10-minute paid rest breaks during the day[.]’”  (Id. at Ex., p. 2.)  “She contends ‘this practice is unlawful because . . . additional rest break time’ is not an approved ‘substitute for wage payments.’”  (Ibid.) 

On 5/5/22, the Court granted Plaintiff’s motion for class certification, certifying an issue class to analyze the lawfulness of Oxgord and Lyneer’s purported “practice of substituting additional break minutes for wages for warehouse employees who pass through security.”  (Id. at Ex., p. 15.) 

Now, Plaintiff seeks summary adjudication of liability regarding the first cause of action “(unpaid wages for the time spent by employees waiting for and going through pre- and post-shift security checks).” (Notice of Motion for Summary Adjudication, p. 1.) She requests a legal determination that Oxgord’s “practice of adding break minutes in place of wages to compensate warehouse employees for time spent on security checks is unlawful under California law” and that Oxgord and Lyneer “have no defense . . . .”  (Ibid.)  She contends the issue of damages should be addressed in a future motion for summary adjudication or at trial.  (See ibid.) 

LAW

When a plaintiff moves for summary judgment/adjudication, “the burden is to produced admissible evidence of each element of a ‘cause of action’ entitling him or her to judgment.”  (Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial (The Rutter Group 2022) ¶ 10:233.)  “This means that plaintiffs who bear the burden of proof at trial by a preponderance of evidence must produce evidence that would require a reasonable trier of fact to find any underlying material fact more likely than not.”  (Ibid., emphasis in original.)  “[O]therwise, he would not be entitled to judgment as a matter of law.”  (Ibid., emphasis in original.)  “At that point, the burden shifts to defendant (or cross-defendant) ‘to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.’”  (Ibid.)

DISCUSSION

Oxgord did not file an opposition (the time for filing a timely opposition has passed). 

Plaintiff still needs to meet her initial burden to win summary adjudication.  Does she?    

At the certification stage, Plaintiff submitted Oxgord’s written discovery responses.  The responses “clearly state that Oxgord ‘adds five minutes’ to each rest break to ‘compensate hourly workers for going through security checks[.]’”  (5/5/22 Notice of Order Granting Plaintiff’s Motion for Class Certification, Ex., p. 15 [quoting Plaintiff’s responses], emphasis added.)  Oxgord’s person most knowledgeable (“PMK”) “verified the responses [citation], and, at his deposition, he confirmed that the practice remains active today.  [Citation.]”  (Ibid.)  In fact, he characterized the extra five minutes as pay.  (See Jusuf Decl., Ex. 6, p. 120 [“Q Okay. So, to your knowledge, the company has not done anything to pay employees who go through security checks? A What does that mean? We do. Because we add five minutes to each of the breaks that are paid.”], emphasis added.)  The Court found that “[t]hese facts tend to show a unilateral common practice of substituting additional break minutes for wages for warehouse employees who pass through security.”  (5/5/22 Notice of Order Granting Plaintiff’s Motion for Class Certification, Ex., p. 15.) 

Plaintiff relies on the same evidence here.  (See Plaintiff’s Separate Statement, UMFs 22-23; see also Jusuf Decl., Ex. 6, pp. 119-122, Ex. 10, pp. 11-12 [attaching Oxgord’s response to form interrogatory 17.1].)  

Nevertheless, the Court finds that the motion should be denied.  As noted above, Plaintiff asks the Court to make a legal determination concerning liability and to leave the issue of damages for another day.  Summary adjudication must dispose of a cause of action, a defense, an issue of damages, or an issue of duty.  (See Code Civ. Proc. § 437c, subd. (f)(1).)  Isolating liability fails to satisfy this requirement, and partial or piecemeal summary adjudication is improper because Plaintiff fails to demonstrate compliance with Code of Civil Procedure section 437c(t). 

Plaintiff’s citation to People ex rel. Feuer v. Superior Court (2015) 234 Cal.App.4^th 1360 is unavailing.  (See Motion for Summary Adjudication, pp. 11-12 [arguing that, “[i]f the amounts sought are remedies (as opposed to an element of a cause of action), summary adjudication as to a cause of action is appropriate before the amounts of remedies or other relief sought are determined”].)  In declining to certify more than an issue class, the Court emphasized that Plaintiff failed to show common harm.  (See 5/5/22 Notice of Order Granting Plaintiff’s Motion for Class Certification, Ex., p. 16.)  The same is true at this stage.  Having a security check, alone, is not a violation; it is the time and level of control that determine whether an employee must be compensated.  (See, e.g., Frlekin v. Apple Inc. (2020) 8 Cal.5^th 1038.)  The fact that Oxgord chose, as a matter of policy, to add five minutes to all rest breaks does not mean actual violations occurred, especially since there is evidence suggesting that many employees went through security checks without waiting or being stopped.  (See, e.g., Jusuf Decl., Ex. 6, pp. 102-106 [PMK testifying that Oxgord does not scan badges, security guards stand at the entrance/exit as a security presence, he has never seen the guards check bags, and he has never seen long lines of employees lining up to pass the guards to go into the warehouse]; see also, e.g., id. At Ex. 11, pp. 39-46 [human resources representative testifying that Oxgord stopped scanning employee badges in 2018, she has never been scanned because the guards recognize her, passing through security is “really quick[,]” and employees with clear bags do not have to remove the bags from their shoulders or backs, do not have to open the bags, and can “walk right by” the guards].)  Those people received the benefit of two extended rest breaks per day and, likely, did not suffer violations.  So, while Plaintiff’s evidence establishes a common practice, it fails to establish class-wide liability and is insufficient to support summary adjudication. 

A further problem is noteworthy.  Plaintiff’s declaration states that she spent five minutes each shift, on average, in pre- and post-shift security lines.  (See Hernandez Decl., paras. 5-6.)  She declares that she observed other unidentified employees “spen[d] about the same amount time” going through the lines.  (See ibid.)  But she only worked at Oxgord for a few months of the class period.  Even assuming her declaration shows that some employees suffered violations during the time she worked there, she cannot say what happened after she left or to employees she did not see.  Her evidence fails to cover the entire class for the entire class period (the notice does not request summary adjudication of her individual claim). 

The motion fails as to Lyneer – and should be denied – for the same reasons. 

Also, the motion should be denied because several UMFs asserted by Plaintiff are unestablished, overstated, and/or disputed.  For example:

* UMF 3 – Plaintiff states that Lyneer employs some of the 25 to 55 warehouse employees working at Oxgord at any given time.  (See Plaintiff’s Separate Statement, UMF 3.)  The PMK was asked how many employees Oxgord had in the warehouse on the day of the deposition or the day before.  He said 25 to 55.  (See Jusuf Decl., Ex. 6, pp. 74-75.)  He said they probably included Lyneer employees, then he clarified that he did not know if Oxgord was still working with Lyneer.  (See id. at Ex. 6, p. 76.) The truth is that Lyneer stopped providing workers to Oxgord months before the deposition took place in June 2021.  (See Lyneer’s Opposition to Plaintiff’s Separate Statement, UMF 3.)  Bottom line, Lyneer did not provide workers to Oxgord for the whole class period, and Plaintiff fails to cite evidence identifying a specific Lyneer employee, other than possibly herself, who incurred a violation.  

* UMF 12 – Plaintiff claims all warehouse employees must show their identification badges to the security guards for scanning.  (See Plaintiff’s Separate Statement, UMF 12.)  In contrast, the human resources representative testified that the guards stopped scanning badges in 2018 because “the software broke down and there was no point in fixing it.”  (Jusuf Decl., Ex. 11, pp.  40-46.)  The PMK said Oxgord does not scan badges.  (See, e.g., id. At Ex. 6, pp. 102-106.)  The evidence indicates that a substantial portion of the class period did not involve scanning. 

* UMF 18 – Plaintiff asserts that, after clocking out, all warehouse employees must go through security lines and open their bags for searches by the security guards.  (See Plaintiff’s Separate Statement, UMF 18.)  Plaintiff cites the human resources representative as support, yet she said the opposite.  To reiterate, she testified that passing through security is “really quick[,]” and employees with clear bags do not have to remove the bags from their shoulders or backs, do not have to open the bags, and can “walk right by” the guards.  (Jusuf Decl., Ex. 11, pp. 39-46; see also id. At Ex. 6, pp. 102-106 [PMK testifying that security guards stand at the entrance/exit as a security presence, he has never seen the guards check bags, and he has never seen long lines of employees lining up to pass the guards to go into the warehouse]; see also, e.g., Cooper Decl., Ex. F, p. 101 [PMK testifying that security guards just “stand there” as people walk in and out and do not scan or check bags].) 

* UMF 23 – Plaintiff claims Lyneer failed to pay Plaintiff and the warehouse employees for the security checks.  (See Plaintiff’s Separate Statement, UMF 23.) The only evidence cited is Oxgord’s PMK testimony and Oxgord’s discovery responses.  The documents do not show violations by Lyneer.   

Finally, the Court notes:

* There is a potential credibility issue due to discrepancies between Plaintiff’s declaration and deposition testimony.  Her descriptions of security lines and security checks at her post-declaration deposition do not seem to match the descriptions in her declaration – e.g., she testified that the security lines formed in a parking lot a substantial distance away from the warehouse, none of which is mentioned in the declaration.  The trier of fact arguably should be the one to assess her credibility and which version, if any, is true.  But since the motion is deniable on other grounds, the Court declines to focus on this issue.

* Lyneer submitted declarations from employees who say they never wait in line or go through bag checks before or after work.  (See Cooper Decl., Exs. G-I.) The declarations fail to state whether Lyneer employs the declarants, whether they work in Oxgord’s warehouse, and whether they are class members.  The motion can be denied independent of the declarations; however, the Court will give Lyneer an opportunity at the hearing show that they are class members. 

* Lyneer contends the California Supreme Court is currently reviewing a case about security checks called Huerta v. CSI Electric Contractors, Inc.  Given that the motion should be denied for other reasons, it is unnecessary to continue the hearing pending the Supreme Court’s decision.