Judge: Mark C. Kim, Case: NC061639, Date: 2022-08-02 Tentative Ruling

Case Number: NC061639    Hearing Date: August 2, 2022    Dept: S27

1.     Background Facts

Plaintiff, Eversoft, Inc. dba HD Chem filed this action against Defendants, Gary Erlandson and Butler Chemicals, Inc. for damages arising out of Erlandson’s alleged taking of trade secrets from Plaintiff and using them in his employment with competing company, Butler.  Erlandson filed a cross-complaint against Eversoft for employment-based claims.    

2.     Motion in Limine #1

Erlandson claims, by way of his cross-complaint, that he was improperly classified as an exempt employee and should have been paid for overtime.  Eversoft designated Rosen as a damages expert to testify concerning calculation of any overtime wages; during Rosen’s deposition, he produced a “Schedule 1R, Wages Calculated v. Wages Paid,” which document calculates overtime wages at the rate that would be paid to a service technician, rather than the rate paid to a salesperson, which is the job Erlandson was hired to do. 

Erlandson moves, in limine, to exclude the schedule and any opinion from Rosen that Erlandson’s wages should be calculated at a lower number than the number actually paid to him.  The Court heard argument on the motion, and set it for further briefing. 

As an initial note, Erlandson’s briefs violate CRC 2.108(4), which requires line numbers to align with a line of type; Erlandson has squeezed 33 lines of type into 28-line paper.  Compounding this issue, his reply brief is fifteen pages long, in violation of CRC 3.1113(d).  The Court notes that the briefs were unnecessarily long, and could have been condensed.  Counsel must ensure compliance with all Rules of Court in the future in connection with this and other actions.

The motion in limine is granted.  Erlandson provides substantial authority establishing how overtime is calculated.  It is calculated using the employee’s base rate of pay.  There is no authority in Eversoft’s brief permitting an employer to use a rate of pay that it pays to other employees to calculate the rate of pay it should be using for the employee at issue.  Once Eversoft agreed to a certain pay structure for Erlandson, that is the pay structure it became obligated to use, regardless of what job duties Erlandson actually performed.  Absent any contrary authority, the motion is granted.

The Court notes that the parties spend time discussing whether or not Erlandson’s commissions should be used in calculating his rate of pay.  Commissions were not the subject of the motion in limine, and the Court will not rule on an issue not before it. 

Erlander is ordered to give notice. 

Parties who intend to submit on this tentative must send an email to the court at gdcdepts27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If any party does not submit on the tentative, the party should make arrangements to appear remotely at the hearing on this matter.