Judge: Glenda Sanders, Case: 2020-01161554, Date: 2022-11-03 Tentative Ruling
Defendant Clarker, Inc. seeks summary judgment on Plaintiff Christian Lin’s complaint, or in the alternative, summary adjudication “on all causes of action”. ROA 94, NOM. For the reasons set forth below, the Motion is DENIED in its entirety.
Objections: Plaintiff objects to the declarations of Shane Clarker, Royal Clarker, and Diane Mancinelli, and portions of Defendant’s Separate Statement. ROA 131.
As for the Shane Clarker Declaration, the Court SUSTAINS the objections to ¶6, p. 2:27-28 and p. 2:28-3:33 as to the portion “they understand Clarker will not be supervising their breaks, reminding them to take their breaks, or preventing them from taking their breaks”, ¶11, p. 4:15-16 and 4:18-20 as to the sentences beginning with “Plaintiff understood…”, and ¶12, p. 4:28-5:2 as to the sentence beginning with “Plaintiff understood…”. The Court OVERRULES the remaining objections to ¶¶5, 6, 7, 9, 13, 14, 15 and 16.
As for the Royal Clarker Declaration, the Court OVERRULES all objections.
The Court OVERRULES the objections to Exhibits 1 and 6 to the Mancinelli Declaration.
As for Defendant’s Separate Statement, the Court declines to rule on the objections since they are repetitive of the above objections and/or do not properly identify the specific material objected to as required under CRC Rule 3.1354(b).
Relevant Authority: Summary judgment is proper when there are no triable issues of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc. § 437c(c).) A moving defendant is entitled to summary judgment if it establishes either one or more elements of the cause of action cannot be established or there is a complete defense to that cause of action. (Code Civ. Proc. § 437(c)(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.)
To prevail on summary judgment, a defendant must show there is affirmative evidence negating, as a matter of law, an essential element of plaintiff’s claims (Guz v. Bechtel Nat’l, Inc. (2000) 24 Cal.4th 317, 334; Brantley v. Pisano (1996) 42 Cal.App.4th 1591, 1598), or the absence of evidence to support an essential element of plaintiff’s claim. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at 854 [absence of evidence basis requires showing plaintiff “does not possess and cannot reasonably obtain, needed evidence”].) Defendant has the burden of showing it is entitled to summary judgment as to all theories of liability asserted against it by plaintiff. (Lopez v. Superior Court (1996) 45 Cal.App.4th 705, 717.) If the defendant meets its initial burden of production to make a prima facie showing that there are no triable issues of material fact, the burden shifts to the plaintiff to produce evidence showing a triable issue of material fact exists. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at 850.)
The defendant also bears the burden of persuasion. (Evid. Code § 500; Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at 850.)
“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc. §427c(f)(1).)
The same procedural rules that apply to summary judgment apply to summary adjudication. (Code Civ. Proc. § 427c(f)(2).)
The Merits: The instant matter is a PAGA-only action that alleges separate causes of action under PAGA for (1) recovery of unpaid wages and overtime, (2) failure to provide meal periods, (3) failure to provide rest periods, (4) failure to provide accurate itemized wage statements, (5) failure to pay wages due upon termination of employment, and (6) failure to indemnify for expenditures or losses in the discharge of duties. ROA 2, Complaint.
Defendant contends all of Plaintiff’s claims fail because there is no evidence that its policies violate any provision of the Labor Code. Defendant also contends none of Plaintiff’s individual PAGA claims have merit.
Plaintiff does not dispute that Defendant’s policies are compliant on their face. Rather, Plaintiff argues that Defendant’s practices violated the Labor Code. Plaintiff also argues that because this is a PAGA-only action, Defendant must show it has not violated any Labor Codes as to all of its employees, not just as to Plaintiff. Plaintiff contends that since Defendant focused only on whether there were any violations as to Plaintiff, Defendant has not met its initial burden of proof. But even if Defendant has met its initial burden of proof, Plaintiff argues that his evidence of violations of the Labor Code against other employees is sufficient to raise triable issues of material fact as to all the PAGA claims.
The Court finds that although Defendant presented evidence that its policies and practices were compliant with the law (ROA 129, UMF Nos. 4, 6, 9), it has not shown that its practices did not result in any violations as to Plaintiff and/or any other employees as a matter of law.
Defendant has not met its initial burden of showing there was no violation of the Labor Code as to Plaintiff. Defendant’s evidence conflicts on whether Plaintiff was prevented from taking his full 30-minute meal break, whether he should have received premium pay for delayed or short meal breaks, or meal breaks not taken, and whether its time records are accurate. Plaintiff testified that he never took rest breaks or meal breaks and never punched in or out for meal breaks. ROA 96, Mancinelli Decl., Ex. 6 [Plaintiff’s Depo.], pp. 54:9-13, 55:9-13, 88:8-11 and 92:19-25. Plaintiff also testified that he never failed to punch in or out to come to or leave work for the day. ROA 129, Add’l Material Facts (AMF) No. 2. Additionally, Plaintiff testified he could not recall if he reviewed his timesheets while employed by Defendant, had never seen his timesheet report, and was not sure about the accuracy of his timesheets. ROA 96, Mancinelli Decl., Ex. 6, pp. 82:11-25, 83:9-14, 84:19-23.
In contrast, other evidence, particularly Plaintiff’s timesheets, show that he did take meal breaks, but there were occasions when he did not take his meal breaks before his 5th hour of work. E.g. ROA 97, R. Clark Decl., Ex. C, Dec. 27, 30 and 31 entries). The Declarations of Shane Clark (ROA 98) and Royal Clark (ROA 97) indicate that Plaintiff would sometimes “forget” or fail to clock in and out for his shift or meal breaks and would request a correction on a feature called “Notes” that permitted an employee to make a notation on his or her timecard, which Defendant would then correct. ROA 97, R. Clark Decl., ¶¶4, 6; ROA 98, S. Clark Decl., ¶9; ROA 129, Opp. SS No. 11.
Although Defendant presents evidence of the print-out of the edits made (ROA 97, R. Clark Decl., ¶6 and Ex. B), it does not appear that the actual request from Plaintiff is provided, nor is there any other evidence explaining the specific reason for the correction. As a result, it is unclear whether the edits were accurate, whether Plaintiff was actually paid for all hours worked, or whether he was entitled to any premium pay for missed, short or delayed meal breaks. See e.g. ROA 97, R. Clark Decl., Ex. B, 1/14/2020, 2/16/2020 entries. Plaintiff’s pay stubs do not reflect any premium pay for missed, short or delayed meal breaks. E.g. ROA 97, R. Clark Decl., Ex. D; ROA 129, Opp. SS No. 15.
Even if Defendant had met its initial burden, Plaintiff has presented sufficient evidence in Opposition to raise triable issues of material fact whether employees were paid all their wages, accurate records were kept and accurate wages statements were provided. Plaintiff presents evidence from other employees that they were not paid for “off-the-clock” work. ROA 132, Ex. I, Rodriguez Decl., ¶¶7-8, 15; Ex. J, Vasquez Decl., ¶¶7, 14; Ex. K, Villegas Decl., ¶7.
Plaintiff also presents evidence that Defendant put significant pressure on employees to finish their deliveries quickly and frequently added stops on their routes that prevented them from taking their rest breaks or their full 30-minute meal breaks even though TSheets automatically reflected that they took the full 30-minutes and their timesheets were edited to appear as if they took their 30-minute meal break. ROA 132, Ex. H, Alvarez Decl., ¶¶7-11; Ex. I, Rodriguez Decl., ¶¶9-13; Ex. J, Vasquez Decl., ¶¶8-12; Ex. K, Villegas Decl., ¶¶8-12.
Although Defendant left it up to its employees to take rest and meal breaks, the evidence that Defendant pressured them to complete their deliveries, including adding stops, and edited their timesheets to reflect meal breaks even when not taken and without providing premium pay, demonstrate there are triable issues of material facts on whether, in practice, Defendant actually provided its employees with the opportunity to take their rest and meal breaks.
Defendant presents federal cases that have granted summary judgment when employees claim they cannot take breaks because of too much work. However, those cases are distinguishable because Plaintiff has presented evidence that Defendants pressured its employees to complete the work, added deliveries, and edited timesheets to show they took breaks when they had not.
Moreover, Defendant’s practice of automatically recording a 30-minute meal break even if the meal break was shortened because of work, and Plaintiff’s evidence of missed, delayed and short meal periods, including his timesheets, gives rise to the rebuttable presumption of a meal period violation as set forth in Donohue v. AMN Servs., LLC (2021) 11 Cal. 5th 58, 78 [“If time records show noncompliant meal periods, then a rebuttable presumption of liability arises”].) Defendant essentially has a rounding practice for meal breaks because TSheets automatically clocks an employee in after 30 minutes and prevents an employee from clocking in earlier even if they have a shortened meal period because of work. As a result, premium pay for noncompliant meal periods would not be triggered unless the employee kept its own records and took affirmative steps to change his or her clock in time. (Id. at 74 [rounding policy would never trigger premium pay required for a shortened meal period and is not neutral].) As the California Supreme Court explained “[I]t is the employer’s duty to maintain accurate time records; the law does not expect or require employees to keep their own time records to uncover potential meal period violations.” (Id. at 80-81.)
As for indemnification, the reimbursement for cell phone use depends on whether the $5 per week amount is a reasonable percentage of the employee’s cell phone bill and is typically a question of fact. (Cochran v. Schwan's Home Serv., Inc. (2014) 228 Cal. App. 4th 1137, 1143–44; Herrera v. Zumiez, Inc. (9th Cir. 2020) 953 F.3d 1063, 1078.) Reimbursement for laundering the uniforms turns on whether the uniform actually required special laundering because of heavy soil or color. (O'Connor v. Starbucks Corp. (N.D. Cal. 2008) 2008 WL 2761586, at *5.)
Plaintiff presented evidence that $5 per week was not reasonable based on an employee’s personal cell phone use (ROA 132, Ex. H, Alvarez Decl., ¶¶13-14; ROA I, Rodriguez Decl., ¶¶16, 17; Ex. J, Vasquez Decl., ¶15-16; Ex. K, Villegas Decl., ¶13-14), and that their uniforms sometimes did require special laundering because they were extremely dirty and sometimes hazardous material soiled their uniforms. ROA 132, Ex. H, Alvarez Decl., ¶12; ROA 132, Ex. I, Rodriguez Decl., ¶14; Ex. J, Vasquez Decl., ¶13.
Based on the foregoing, there are numerous disputed issues of material fact on the PAGA claim and each alleged Labor Code violation. The Motion is DENIED in its entirety.
The status conference is continued to February 3, 2023 at 9:00 a.m. and the parties are Ordered to file a joint status report not later than January 27, 2023.
Defendant is ordered to give notice.