Judge: Kenneth J. Medel, Case: 37-2021-00050379-CU-OE-CTL, Date: 2023-10-06 Tentative Ruling
SUPERIOR COURT OF CALIFORNIA,
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HALL OF JUSTICE
TENTATIVE RULINGS - October 05, 2023
10/06/2023 09:30:00 AM C-66 COUNTY OF SAN DIEGO
JUDICIAL OFFICER:Kenneth J Medel
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Civil - Unlimited Other employment Summary Judgment / Summary Adjudication (Civil) 37-2021-00050379-CU-OE-CTL CALMA VS SCOOTER BREW INC [E-FILE] CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 02/01/2023
The Court rules on defendant Scooter Brew, Inc.'s (Defendant) motion for summary adjudication as follows: Plaintiff Sean S. Calma's (Plaintiff) Evidentiary Objections. The objections to portions of the Arruda Declaration are overruled.
Defendant's Evidentiary Objections. The objections to the portions of Plaintiff's Exhibits A and E cited in Plaintiff's Additional Undisputed Material Facts, Nos. 36 and 68 are overruled.
Standard for Summary Adjudication A motion for summary adjudication asks the court to determine that one or more causes of action, affirmative defenses, claims for damages, or issues of duty has no merit. (Code Civ. Proc. §437c(f)(1).) The moving party's evidence is strictly construed while the opposing party's evidence is liberally construed. (Binder v. Aetna Life Insurance Co. (1999) 75 Cal.App.4th 832, 838 (hereafter 'Binder').) The Court's sole function is issue finding, not issue determination. (Id. at p. 839.)
Fifth Cause of Action for Failure to Reimburse Business Expenses. Labor Code section 2802 (Section Calendar No.: Event ID: TENTATIVE RULINGS
2999036 51 CASE NUMBER: CASE TITLE: CALMA VS SCOOTER BREW INC [E-FILE] 37-2021-00050379-CU-OE-CTL 2802) provides that employees have the right to reimbursement for expenses directly incurred in the course of their employment. Defendant presented evidence showing that it had a policy and procedure in place for employees to request reimbursement. (Plaintiff's Response to Defendant's Separate Statement (PO DSS), No. 14.) Although Plaintiff does not dispute that he was reimbursed for certain expenses via this procedure (Id., at No 17), Section 2802 does not explicitly state that Plaintiff's claim necessarily fails if the procedure its not utilized. Notably, the court in Wilson v. La Jolla Group (2021) 61 Cal.App.5th 897, 919, held that an employer's duty to indemnify is based on whether the employer either knows or has reason to know that the employee incurred a reimbursable expense. 'Once the employer has such knowledge, then it has the duty to exercise due diligence and take any and all reasonable steps to ensure that the employee is paid for the expense.' (Ibid.) Here, Plaintiff presented evidence that he had to use his cell phone in order to access the BAND app in order to receive notifications from Defendant. Defendant does not dispute that Plaintiff was not reimbursed for this. Thus, triable issues exist and so the motion is denied as to this claim.
First and Second Causes of Action for Failure to Pay All Minimum and Overtime Wages. Defendant presented evidence that it has written policies prohibiting its employees from working off the clock. (PO DSS, No. 26.) However, Plaintiff presented undisputed evidence that he was required to check the BAND app outside of working hours (Plaintiff's Additional Material Facts (PAMF), Nos. 54, 63). In addition, Plaintiff presented evidence that he had to count the money he made in sales and tips after he clocked out (Id., at Nos. 66-68) and continued to work after clocking out for meal periods (Id., at No. 34.) Thus, triable is issues exist and so the motion is denied as to these claims.
Third Cause of action for Failure to Provide Meal Periods. Defendant presented evidence that it has a meal period policy in place, had employees sign an acknowledgement of this policy, and periodically sent reminder memos and messages out with regard to the policy. (PO DSS, Nos. 1-2, 4.) Defendant also noted that Plaintiff signed the acknowledgment and paid him meal period penalties when he missed a meal or when he did not clock-out for the full 30 minutes. (Id., at Nos. 3, 5.) Additionally, Defendant provided evidence that Plaintiff signed a lunch break waiver indicating that he voluntarily waived his 30-minute duty free meal period in the event that his shift lasted no more than 6 hours. (Defendant's Compendium of Evidence, Exh. B-3 (California Lunch Break Waiver).) In response, Plaintiff stated that he was pressured into signing the Lunch Break Waiver. (PAMF), No. 42.) Courts have held that an employer must show that the employee's waiver was voluntary (Lampe v. Queen of the Valley Medical Ctr. (2018) 19 Cal.App.5th 832, 848-851; see also Cal. Code Regs., tit. 8, §11050 subd. 11(D).) Thus, a dispute of fact exists as to whether Plaintiff's signing of the waiver was voluntary or not. Plaintiff also presented evidence showing that Defendant did not hire breakers to provide employees with coverage during their meal breaks, was not paid for time spent working during meal periods, required employees to clock out after 5 hours but continue to work until his or her job duties were finished, and threatened to hire breakers who would keep employees' tips. (Id., at Nos. 32-38.) Thus, triable issues exist and so the motion is denied as to this claim.
Fourth Cause of action for Failure to Provide Rest Breaks. Defendant presented evidence that it has a rest period policy in place, had employees sign an acknowledgement of this policy, and periodically sent reminder memos and messages out with regard to this issue. (PO DSS, Nos. 9-11.) Defendant also noted that Plaintiff signed the acknowledgment. (Id., at No. 11.) In response, Plaintiff presented evidence that he was unable to take uninterrupted rest breaks due to working a skeleton crew and was not paid rest break premiums. Thus, triable issues exist and so the motion is denied as to this claim.
Seventh Cause of Action for Direct and Derivative Wage Statement Violations. Defendant argues that this is a derivative claim which fails due to the failure of Plaintiff's off-the-clock claims. As noted above, the Court has found that triable issues exist as to the off-the-clock claims. Therefore, the motion is denied as to this claim.
Sixth Cause of Action for Unlawful Retention of Gratuities. The parties provided conflicting testimony as to whether money that customers gave to Defendant during Covid were tips or gifts, whether all of it was given and divided among the employees or whether Defendant retained a portion of it before distributing Calendar No.: Event ID: TENTATIVE RULINGS
2999036 51 CASE NUMBER: CASE TITLE: CALMA VS SCOOTER BREW INC [E-FILE] 37-2021-00050379-CU-OE-CTL the money to its employees. (PO DSS, Nos. 22-23.) Thus, triable issues exist and so the motion is denied as to this claim.
IT IS SO ORDERED.
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