Judge Joel R Wohlfeil, Case 37-2022-00025334-CU-OE-CTL 2023-09-08 Tentative Ruling

Judge: Joel R Wohlfeil, Case: 37-2022-00025334-CU-OE-CTL, Date: 2023-09-08 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - September 05, 2023

09/08/2023 09:00:00 AM C-73 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Joel R. Wohlfeil

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Civil - Unlimited Other employment Summary Judgment / Summary Adjudication (Civil) 37-2022-00025334-CU-OE-CTL SALDANA VS MARISCOS AND STREET TACOS INC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 06/23/2023

The Motion (ROA # 126) of Defendants MARISCOS AND STREET TACOS, INC. ('MARISCOS'), CARLOS ROBLES ('Robles') and MARGARITA ROBLES ('Mrs. Robles') for summary adjudication of causes of action 2, 3, 6 and 8 in the Complaint by Plaintiff MARCO SALDANA ('Plaintiff'), is DENIED.

This ruling is based on the analysis set forth below.

2nd COA: FAILURE TO TIMELY FURNISH ACCURATE ITEMIZED WAGE STATEMENTS This cause of action is premised on Labor Code section 226, and seeks damages pursuant to subsection (e)(1): 'An employee suffering injury as a result of a knowing and intentional failure by an employer to comply with subdivision (a) is entitled to recover the greater of all actual damages or fifty dollars ($50) for the initial pay period in which a violation occurs and one hundred dollars ($100) per employee for each violation in a subsequent pay period, not to exceed an aggregate penalty of four thousand dollars ($4,000), and is entitled to an award of costs and reasonable attorney's fees.' A three-year limitations period applies to '[a]n action upon a liability created by statute, other than a penalty or forfeiture.' Code Civ. Proc. 338(a).

A one-year limitations period applies to '[a]n action upon a statute for a penalty or forfeiture.' Code Civ.

Proc. 340(a).

Neither party to this action cites applicable California authority.

The Court finds the following statement from a federal district court order to be both directly applicable and persuasive: 'United States District Courts in California have, relying on the plain language of the statute, interpreted the language in section 226 as allowing plaintiffs to seek either actual damages or statutory penalties. Singer v. Becton, Dickinson & Co., 2008 WL 2899825, at *5 (S. D. Cal. July 25, 2008); Ricaldai v. U.S. Investigations Servs., LLC, 878 F. Supp. 2d 1038, 1045 (C. D. Cal.2012) (adopting reasoning in Singer). When a plaintiff is seeking actual damages, the three-year statute of limitations applies, but when a plaintiff is seeking statutory penalties, the one-year statute of limitations applies.

Singer, 2008 WL 2899825, at *5 ('Although Plaintiff may not seek penalties for a violation of 226(a) because of the one year statute of limitations, claims for actual damages and injunctive relief for a violation of 226(a) are timely because they have been brought within the three year statute of limitations Calendar No.: Event ID: TENTATIVE RULINGS

2984175 CASE NUMBER: CASE TITLE: SALDANA VS MARISCOS AND STREET TACOS INC [IMAGED] 37-2022-00025334-CU-OE-CTL and constitute 'liability created by statute, other than a penalty or forfeiture.'); Ricaldai v. U.S.

Investigations Servs., LLC, 878 F. Supp. 2d 1038, 1045 (C. D. Cal.2012) (adopting reasoning in Singer ).

Defendant argues Singer and Ricaldi failed to consider the California Supreme Court decision in Murphy v. Kenneth Cole Productions, Inc., and thus are not an accurate statement of California law. See 40 Cal. 4th 1094, 1108 (2007). In Murphy, the issue before the California Supreme Court was whether the 'one additional hour of pay' provided in Labor Code section 226.7 constitutes a wage subject to a three-year statute of limitation, or a penalty subject to a one-year statute of limitation. 40 Cal. 4th at 1099. In discussing whether the language in section 226.7 constituted a penalty, the Court noted that '[i]n section 226, the Legislature imposed a penalty on employers who fail to provide itemized wage statements that comply with the Labor Code.' Id. at 1108. Later, in a footnote, the Court noted that the plaintiff's claim for itemized wage statement violations was 'undisputedly governed by a one-year statute of limitations.' Id. at 1118 n. 6.

In Murphy, the plaintiff was seeking only statutory penalties under section 226.7 Murphy does not address the issue of actual damages under section 226(e), and therefore it cannot represent a holding that regardless of whether a plaintiff chooses to pursue actual damages or statutory penalties under section 226(e), he or she is in fact seeking penalties. Accordingly, the Court finds the Singer Court's reasoning persuasive. Therefore, if Plaintiffs are in fact seeking actual damages, their claim is not barred by the one-year statute of limitations.

Footnote 7: Defendant also cites to Dunlap v. Superior Court, 142 Cal. App. 4th 330, 341 (2006), which addressed whether a wage claimant was entitled to recover a statutory penalty under section 226 prior to the adoption of PAGA. As in Murphy, the plaintiff was not seeking actual damages, and thus the court only addressed whether there was an entitlement to a statutory penalty. Thus, Dunlap is not on point as to the issue of the statute of limitations for actual damages under section 226(e).' Mouchati v. Bonnie Plants, Inc. (C. D. Cal., Mar. 6, 2014, No. EDCV 14-00037-VAP) 2014 WL 1661245, at *8 - 9 (emphasis added, one footnote omitted).

It is undisputed that Plaintiff 'left the employ of the defendants' more than one year before this action was filed. Separate Statement no. 1. Plaintiff's opposition acknowledges that this action was filed beyond the one-year limitations period such that Plaintiff is not entitled to recover a statutory penalty.

The party moving for summary judgment bears the ultimate burden of persuasion that there is no triable issue of material fact and that they are entitled to judgment as a matter of law. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850.

In addition, the party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact. Id. If this burden of production is satisfied it is shifted, and the opposing party is then subjected to a burden of production to make a prima facie showing of the existence of a triable issue of material fact. Id. A Defendant moving for summary judgment must present evidence that would require a reasonable trier of fact not to find any underlying material fact more likely than not. Id. at 851.

A Defendant must show that one or more elements of the cause of action cannot be established by the plaintiff. Id. at 853.

A Defendant can meet this burden by showing that Plaintiff does not possess, and cannot reasonably obtain, needed evidence. Id. at 854.

A Defendant must show that Plaintiff does not possess needed evidence. Id. Calendar No.: Event ID: TENTATIVE RULINGS

2984175 CASE NUMBER: CASE TITLE: SALDANA VS MARISCOS AND STREET TACOS INC [IMAGED] 37-2022-00025334-CU-OE-CTL Importantly, a Defendant moving for summary judgment must present evidence, and not simply point out that the plaintiff does not possess, and cannot reasonably obtain, needed evidence. Id. Paragraph 38 of the Complaint within the second cause of action alleges as follows: 'Plaintiff seeks damages pursuant to Labor Code §226(e) for each violation by Defendants of Labor Code §226 of at least $4,000.00, and pursuant to §§ 226.3, 558.1, plus attorneys' fees and costs. In addition, Plaintiff seeks preliminary and permanent injunctive relief pursuant to Labor Code §226(h).' Paragraph 38 appears to allege the recovery of actual damages in addition to any available statutory penalty. As a result, Defendants fail to satisfy their initial burden with respect to summary adjudication of this cause of action. They do not produce evidence demonstrating the absence of actual damages (e.g., discovery responses).

This Motion does not address the applicable limitations period for the claim for injunctive relief.

Therefore, summary adjudication of this cause of action is denied.

3rd COA: UNFAIR BUSINESS PRACTICES Defendants argue this cause of action is improper because adequate remedies are available to Plaintiff via the other causes of action. However, this cause of action is unique in that it seeks restitution and not damages. This claim also has a different limitations period and seeks potentially unique injunctive relief.

As a result, Defendants' argument is not persuasive and summary adjudication is denied.

Defendants' reply brief argues this claim cannot apply to other persons because Plaintiff did not allege the class action requirements under Code of Civil Procedure section 382. The Court disregards this argument because it was not included within the moving papers.

6th COA: FAILURE TO TIMELY PROVIDE COPY OF PAYROLL RECORDS/EMPLOYEE FILE Labor Code section 226(c) and (f) provide, in part: '....

(c) An employer who receives a written or oral request to inspect or receive a copy of records pursuant to subdivision (b) pertaining to a current or former employee shall comply with the request as soon as practicable, but no later than 21 calendar days from the date of the request. A violation of this subdivision is an infraction. Impossibility of performance, not caused by or a result of a violation of law, shall be an affirmative defense for an employer in any action alleging a violation of this subdivision. An employer may designate the person to whom a request under this subdivision will be made.

....

(f) A failure by an employer to permit a current or former employee to inspect or receive a copy of records within the time set forth in subdivision (c) entitles the current or former employee or the Labor Commissioner to recover a seven-hundred-fifty-dollar ($750) penalty from the employer.

....' As this cause of action only seeks a penalty, the one-year limitation period applies.

Paragraph 53 of the Complaint alleges this cause of action is premised on a request for employment records that was made on April 15, 2022. Thus, the records were due in May 2022. It is disputed whether Defendants failed to timely provide records in May 2022. Separate statement no. 11. Thus, the statute of limitations began to run in May 2022 when the violation occurred. This is within one year from Calendar No.: Event ID: TENTATIVE RULINGS

2984175 CASE NUMBER: CASE TITLE: SALDANA VS MARISCOS AND STREET TACOS INC [IMAGED] 37-2022-00025334-CU-OE-CTL the Complaint filing date of June 28, 2022 and summary adjudication is denied.

8th COA: PRIVATE ATTORNEYS GENERAL ACT PER LABOR CODE §2699 A PAGA action is subject to a one-year statute of limitations. Esparza v. Safeway, Inc. (2019) 36 Cal. App. 5th 42, 59 (citing Code Civ. Proc. 340(a)). Disputed facts exist demonstrating that Plaintiff is within the statute of limitations to bring this claim based on the predicate violation set forth within the sixth cause of action. As a result, Defendants' argument is not persuasive and summary adjudication is denied.

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