Judge: Elaine W. Mandel, Case: 22SMCV01693, Date: 2023-12-13 Tentative Ruling

Case Number: 22SMCV01693    Hearing Date: December 13, 2023    Dept: P

Tentative Ruling

Barboza, et al. v. Holiday Villa East Management, LP et al., Case No. 22SMCV01693

Hearing Date December 13, 2023

Defendants Holiday Villa East Management & Diller’s Motion for Summary Adjudication

Plaintiffs Barboza, Rhonda Madrid and Anthony Madrid sued their former employer, a senior living facility owned and/or operated by defendant Holiday Villa East Management and managing partner defendant Diller. Plaintiffs allege retaliatory termination for reporting sexual abuse at the facility, hostile work environment, lack of meal/rest breaks, requiring work off-the-clock without pay and failure to reimburse. Defendants move for summary adjudication.

Evidentiary Objections

Plaintiffs’ Objections:

Objection 1 SUSTAINED (lack of personal knowledge), Objection 2 OVERRULED, Objections 3-5 OVERRULED, Objection 6 SUSTAINED (lack of authentication), objection 7 OVERRULED, Objection 8 SUSTAINED (lack of personal knowledge), Objection 9 SUSTAINED (speculation), objections 10-17 OVERRULED.

FEHA Claims: Administrative Exhaustion

A plaintiff seeking to bring a claim for an unlawful employment practice under the Fair Employment and Housing Act (FEHA, Cal. Govt. Code §§12940, et seq.) must exhaust administrative remedies by filing a complaint with the DFEH within the three-year statute of limitations period. Cal. Govt. Code §1260(e)(5).

Defendants argue failure to exhaust administrative remedies. Hechavariaa decl. ¶¶2-4. Plaintiffs present copies of the right-to-sue letters from DFEH. Plaintiffs Exhs. G, I and J. Defendants withdraw these arguments. MOOT.

Wrongful Termination

Defendants argue plaintiffs quit their jobs and were not terminated. In reply, defendants withdraw this argument as to plaintiffs Rhonda and Anthony Madrid but maintain it as to plaintiff Barboza.

Defendants argue Barboza quit. Diller states he received a complaint that Barboza used offensive language. Diller called Barboza, who allegedly quit over the phone. Diller decl. ¶27. Barboza’s alleged statements are admissible as a verbal act and/or a statement by a party opponent. J&M Mash & Barrel, LLC v. Superior Court (2022) 74 Cal.App.5th 1, 19, Cal. Evid. Code §1220. This satisfies defendants’ initial burden on summary adjudication.

Barboza claims he did not quit, but Diller fired him. Barboza decl. ¶¶20-23. Barboza cites an email he sent to Diller in which he denies quitting. Barboza exh. A. The email is an inadmissible out-of-court statement offered for proof of its contents. It is not a party admission (Evid. Code §1220), as this only applies when the out-of-court statement is offered against the declarant.

The parties’ evidence regarding the conversation conflicts. Diller claims Barboza quit; Barboza claims Diller fired him. On summary adjudication the court does not weigh evidence. Blue Mountain Ent., LLC v. Owen (2022) 74 Cal.App.5th 537, 549. The declarations create a triable issue of material fact. DENIED.

Meal and Rest Breaks

Employers must provide a thirty-minute meal period for every five hours worked unless the employee’s total work period per day is no more than six hours. Cal. Lab. Code §512. If an employer fails to provide meal breaks, they must pay an additional hour at the regular hourly rate. Cal. Lab. Code §226.7. Additionally, employees are entitled a ten-minute rest break for every four hours worked. Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1028-1029, Cal. Code Regs., Tit. 8 §11050.

Defendants argue Barboza was not deprived of breaks, presenting time sheets Barboza signed certifying he took all required rests. Defendants’ Exh. D. The employee handbook informs employees of their right to rest breaks. Defendants’ Exh. G. Per Diller, HVE provided regular meal and rest breaks to all employees. Diller decl. ¶17. Diller states Barboza never told him he was missing meal or rest periods. Id. Barboza’s biweekly time sheets (2/18-5/20) indicate he regularly took thirty-minute meal breaks. Defendants’ exh. D.

Plaintiffs argue the time sheets are inadmissible. Diller, HVE’s managing partner, qualifies as a custodian of records. These are admissible business records (Evid. Code §1271).

The time sheets do not indicate whether Barboza took ten-minute rest breaks under §11050. Nor do they account for May-September 2020. Diller states HVE had a written policy of providing meal and rest breaks, and Barboza never told him he was missing meal or rest periods. Diller decl. ¶17. This is sufficient to meet defendants’ initial burden on summary adjudication. The burden shifts to plaintiff to show a triable issue of material fact.

Barboza states the time sheets do not accurately reflect hours worked. He states Diller required him to clock out and buy groceries for the facility twice weekly. He states Diller would “call and scream at [him]” if he submitted accurate timesheets that reflected time spent on these tasks. Barboza decl. ¶13. He claims the tasks took two to four hours each, extending the length of his day and entitling him to additional meal and/or rest breaks that were not provided or reflected in timesheets. Barboza decl. ¶¶7-9.

This creates a triable issue of fact as to whether workdays were longer than recorded in the timesheets. Summary adjudication DENIED.

Failure to Indemnify (Barboza/Madrid)

An employer must indemnify employees for “all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties[.]” Cal. Labor Code §2802(a).

Diller states HVE routinely reimbursed employees for out-of-pocket expenses and paid all expense claims Barboza and Rhonda Madrid made. Diller decl. ¶19. Exhs. I-K, emails from Barboza to Diller with grocery receipts and/or reimbursement checks to Barboza, back up this claim. HVE’s QuickBooks account, which reflects many reimbursements made to Barboza and Rhonda Madrid. Exh. M. This carries defendants’ initial burden.

Plaintiffs claim exhibits I-K, the emails, are illegible and/or unintelligible. The emails show Barboza and Diller were discussing out-of-pocket expenses and reimbursements. Ambiguity about their contents is clarified by Diller’s declaration. Plaintiffs claim exhibit M is inadmissible hearsay. The Quickbooks records are authenticated by Diller and are admissible business records.

Barboza fails to identify specific expenses that were unreimbursed or present evidence that the QuickBooks records were inaccurate or incomplete. His claim that Diller “refused to reimburse [him]” for supplies is refuted by exhibits I-K and M. Barboza fails to carry his burden to show a triable issue of fact as to reimbursement. GRANTED as to Barboza.

Rhonda Madrid contends she was not reimbursed for use of her personal cell phone or gas. Rhonda Madrid decl. ¶9. She fails to provide evidence these expenses were “necessary,” or “a direct consequence of the discharge of [her] duties,” in light of Diller’s declaration that Madrid had access to a company van and telephones and did not need to use her personal phone or car to conduct Holiday Villa business. Diller decl. ¶18. GRANTED as to Rhonda Madrid.

Failure to Pay all Earned Wages/Overtime; Failure to Furnish Accurate Wage and Hour Statements (Barboza)

This cause of action is based on Barboza’s allegation that he was forced to perform regular tasks off-the-clock, and these trips were not included in wages, overtime or wage statements. There is a triable issue of material fact as to whether Diller required Barboza to take these trips and leave them out of his timesheet. Summary adjudication is improper.

Defendants argue Barboza presented no evidence of actual or constructive knowledge of alleged off-the-clock work. Barboza declared Diller required him to omit the supply runs from his timesheet and screamed at him when he included them. Barboza decl. ¶9-13. This is sufficient to create a triable issue of fact as to whether Diller and Holiday Villa directed – and therefore had constructive knowledge of – Barboza’s off-the-clock work. DENIED.