Judge: Monica Bachner, Case: 20STCV31837, Date: 2022-12-21 Tentative Ruling

Department 71: Attorneys who elect to submit on these published tentative rulings, without making an appearance at the hearing, may so notify the Court by communicating this to the Department's staff at (213) 830-0771 before the set hearing time.  See, e.g., CRC Rule 324(b).   All parties are otherwise encouraged to appear by Court Call for all matters.

Case Number: 20STCV31837    Hearing Date: December 21, 2022    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Defendant Wayfair, LLC’s motion for summary judgment is granted. Alternatively, for appeals purposes only, the Court grants summary adjudication as to issues nos. 1 and 2.

Defendant Wayfair, LLC (“Wayfair”) (“Defendant”) moves for summary judgment, or in the alternative, summary adjudication of the 1st (Civil Penalties Pursuant to the Private Attorneys General Act of 2004 (“PAGA”), Labor Code §§2698 et seq.) cause of action as asserted by Plaintiff Manuel Morales (“Morales”) (“Plaintiff”) in his complaint (“Complaint”). Defendant moves for summary judgment, or in the alternative adjudication, on the grounds that (1) Plaintiff’s PAGA’s cause of action based on Wage Order 14 fails because Plaintiff’s mandatory notice letter to the Labor and Workforce Development Agency (“LWDA”) and Defendant failed to set forth “the facts and theories supporting the alleged” seating violations [Issue 1]; (2) Plaintiff’s cause of action based upon Wage Order 15 fails because (a) Plaintiff cannot establish an industry-wide standard for temperature that applies to Defendant’s California warehouse distribution centers [Issue 2]; (b) Plaintiff does not have, and cannot reasonably obtain, evidence that he was subjected to a temperature in excess of an industry-wide standard while working in Defendant’s warehouse and therefore cannot establish standing to use under PAGA as an “aggrieved employee” [Issue 3]; and (4) Wage Order section 15 is unconstitutionally vague as applied to Defendant, as there is no clearly applicable industry-wide standard for temperature in its California warehouse distribution centers [Issue 4].  (Notice of Motion, pg. 2; Lab. Code §2699.3(a)(1)(A).) 

CRC Violations

          Plaintiff’s 11/8/22 request for judicial notice violates C.R.C. Rule §3.1350(e) and §3.1306(c), which requires the party to provide a copy of the material.  Instead, the documents to be noticed are referenced with Plaintiff’s compendium of evidence in opposition to Defendant’s motion.  Plaintiff also fails to cite any page and line numbers in his Opposition Separate Statement in reference to his RJN in violation of C.R.C. 3.1350(f)(2).

Request for Judicial Notice

Defendant’s 8/24/22 request for judicial notice of Cal/OSHA’s April 22, 2019 revised draft text for Heat Illness Prevention in Indoor Places of Employment is granted.  (D-RJN, Exh. A.) 

Plaintiff’s 11/8/22 request for judicial notice of Matter of National Distribution Center (2015) Cal-OSHA App. 12-R6D2-0391 and of the OSHA Technical Manual are denied  (P-RJN, Exh. 6 and 7.)

Evidentiary Objections

Defendant’s 11/4/22 evidentiary objections to the Deposition of Morales (Decl. of Patel, Exh. 3) are overruled as to Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, and 16.

Defendant’s 11/4/22 evidentiary objections to the Declaration of Morales (Decl. of Patel, Exh. 4) are sustained as to No. 18, and overruled as to No. 17.

Defendant’s 11/4/22 evidentiary objections to the Declaration of Velasquez (Decl. of Patel, Exh. 5) are overruled as to Nos. 19, 20, 21, and 22.

Procedural Background

On August 20, 2020, Plaintiff filed his complaint against Defendant alleging one (1) cause of action for civil penalties pursuant to PAGA.  On August 24, 2022, Defendant filed the instant motion. On October 27, 2022, Plaintiff filed his opposition. Defendant filed its reply on November 4, 2022.

Summary of Allegations

Plaintiff brings his representative action under PAGA on behalf of himself and all other current and former aggrieved California-based hourly non-exempt warehouse employees, and the State of California, seeking civil penalties associated with Defendants’ violations of the Labor Code based on Defendant’s failure to maintain temperature providing reasonable comfort and failure to provide suitable seats.  (Complaint ¶1.)  Plaintiff alleges he is and was domiciled in and a resident of California and was employed by Defendant as an hourly non-exempt employee within one (1) year preceding the filing of the PAGA Claim Notice with the LWDA.  (Complaint ¶3.)  Plaintiff alleges he and other current and former distribution center employees were subjected to excessive heat and/or humidity resulting in temperatures equaling or exceeding 82 degrees Fahrenheit, and Defendant failed to provide Plaintiff and other distribution center employees with reasonable comfort by maintaining the indoor temperature within the range of industry standards by providing adequate air conditioning or ventilation.  (Complaint ¶14.)  Plaintiff alleges when he and other current and formerly aggrieved employees were not engaged in active duties of their employment and the nature of the work required standing, Defendants failed to place an adequate number of suitable seats in reasonable proximity to the work area and failed to permit Plaintiff and other employees to use such seats when it did not interfere with the performance of their duties.  (Complaint ¶17.) 

Plaintiff alleges he complied with the procedures for bringing suit specified in Labor Code §26699.3 and filed a notice with the LWDA and Defendant on June 15, 2020, by certified mail with provided notice of the specific provision of the Labor Code alleged to be violated, including the facts and theories to support the alleged violations.  (Complaint ¶20, Exh. A.)

Legal Standards

A defendant may move for summary judgment of an action, or summary adjudication as to a cause of action (including distinct theories in a PAGA claim), by showing at least one element of the cause of action cannot be established or that there is a complete defense.  (See C.C.P. §§437c(a)(1), (f)(1), (p)(2); Silva v. See’s Candy Shops, Inc. (2016) 7 Cal. App. 5th 235, 257-260 [summary adjudication appropriate as to distinct theories in PAGA claim], disapproved on another ground in Donohue v. AMN Services, LLC (2021) 11 Cal. 5th 58, 77.)  Once the defendant meets its initial prima facie burden, “the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.”  (C.C.P. §437c(p)(2); see also Aguilar v. Atlantic Richfield Co. (2021) 25 Cal. 4th 826, 850-851, 853.)

Where the plaintiff bears the burden of proof, summary adjudication is appropriate if the defendant shows that the plaintiff lacks and cannot reasonably obtain “needed evidence” to support the claim.  (Aguilar, 25 Cal.4th at pg. 855.) “When a defendant seeking summary judgment submits the plaintiff’s . . . deposition testimony [or the plaintiff’s factually devoid discovery responses] indicating the plaintiff does not possess any evidence to support one or more elements of the plaintiff’s claim, the burden shifts to the plaintiff to present evidence sufficient to raise a triable issue of material fact.”  (Sweeting v. Murat (2013) 221 Cal. App. 4th 507, 514 n.8; Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590 [“[A] moving defendant may rely on factually devoid discovery responses to shift the burden of proof pursuant to section 437c, subdivision (o)(2).”].)

Civil Penalties Pursuant to the Private Attorneys General Act of 2004 (“PAGA”), Labor Code §§2698 et seq. (1st COA)

The LWDA is authorized to assess and collect civil penalties for certain violations of the Labor Code. Because the LWDA and its constituent departments and divisions are unable to prosecute employers for every Labor Code violation, the Legislature enacted PAGA, which allows employees to initiate a civil action against their employers.  (See Labor Code §2698; Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 379; Franco v. Athens Disposal Co., Inc. (2009) 171 Cal.App.4th 1277, 1301.)  The aggrieved employee generally retains only 25% of any civil penalty recovery. The remaining 75% goes to the LWDA for education and enforcement purposes.  (Labor Code §2699(i); see Caliber Bodyworks, Inc. v. Superior Court (2005) 134 Cal.App.4th 365, 370.)

“Aggrieved employee” means anyone who was employed by the alleged violator and against whom one or more of the alleged violations was committed. (Labor Code §2699(c); see Amalgamated Transit Union, Local 1756, AFL-CIO v. Superior Court (2009) 46 Cal.4th 993, 1004-1005.)  PAGA does not limit the employee’s right to pursue other remedies available under state or federal law “either separately or concurrently with an action taken under this part.”  (Labor Code §2699(g)(1); Caliber Bodyworks, Inc, 134 Cal.App.4th at pg. 375.)

1. Whether Plaintiff’s cause of action based on Wage Order §14 fails because Plaintiff did not satisfy PAGA’s mandatory pre-suit administrative requirement that his notice letter to the LWDA and Defendant failed to set forth the “facts and theories to support the alleged” seating violations [Issue 1]

Labor Code §2699.3 provides:

1. A civil action by an aggrieved employee pursuant to subdivision (a) or (f) of Section 2699 alleging a violation of any provision listed in Section 2699.5 shall commence only after the following requirements have been met:

    

1. (A) The aggrieved employee or representative shall give written notice by online filing with the [LWDA] and by certified mail to the employer of the specific provisions of this code alleged to have been violated, including the facts and theories to support the alleged violation.

(Lab. Code, § 2699.3(a)(1)(A).)

Wage Order §14 provides:

1. All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.

    

2. When employees are not engaged in the active duties of their employment and the nature of the work requires standing, an adequate number of suitable seats shall be placed in reasonable proximity to the work area and employees shall be permitted to use such seats when it does not interfere with the performance of their duties.

(8 Cal. Code Regs. §11070(14)(A)-(B).)

          Defendant argues Plaintiff’s first cause of action fails as to the Section 14 claim because Plaintiff failed to exhaust PAGA’s administrative requirement to give written notice to the LWDA and Defendant was factually deficient as to Plaintiff’s seating claim because it is a string of legal conclusions.  (Brown v. Ralphs Grocery Co. (2018) 28 Cal.App.5th 824, 837; Alcantar v. Hobart Service (9th Cir. 2015) 800 F.3d 1047, 1057.)  Defendant argues it is impossible to discern notice and the basis and scope of Plaintiff’s seating claim because Plaintiff’s letter does not attempt to describe (1) Plaintiff’s job position; (2) when or where within any warehouse the nature of his work or any other employee’s work allegedly permitted a seat that was not provided in violation of section 14(A); (3) when or where within any warehouse a seat allegedly should have been provided when the nature of the work required standing in violation of section 14(B); or (4) the scope of job positions at issue.  (Memorandum, pg. 18.)  Defendant argues a “string of legal conclusions that parrot[] the allegedly violated Labor Code provisions” or applicable regulations “with no factual allegations or theories to support them” is inadequate.  (Brown, 28 Cal.App.5th at pg. 837; Alcantar, 800 F.3d at pg. 1057.)  The notice must “give sufficient information for the LWDA to assess the seriousness of the alleged violations and decide whether to allocate scarce resources to an investigation,” and “for defendants to determine what policies or practices were being complained of, have an opportunity to cure the violations, and prepare a meaningful response.” (Brown, 28 Cal.App.5th at pgs. 837-838.)

          Defendant submitted evidence that Plaintiff’s 1st cause of action fails because Plaintiff did not satisfy PAGA’s mandatory pre-suit administrative requirement to set forth the “facts and theories to support the alleged” seating violations.  Specifically, Defendant submitted the letter Plaintiff submitted to the LWDA and Defendant on June 15, 2020.  That letter states the following:

In this case, Employee maintains that Employer failed to comply with the requirements of Section 14(A) of Wage Order 9 by failing to provide suitable seating to him and other current and former aggrieved California-based hourly non-exempt warehouse employees who performed duties that reasonably permitted the use of seats despite that the nature of their work reasonably permitted the use of seats. Employee further maintains that Employer failed to comply with the requirements of Section 14(B) of Wage Order 9 by failing to provide suitable seating to him and other current and former aggrieved California-based hourly non-exempt warehouse employees when they were not engaged in the active duties of their employment and the nature of the work required standing, Employer failed to provide an adequate number of suitable seats placed in reasonable proximity to the work and further failed to permit Employee and other current and former aggrieved California-based hourly non-exempt warehouse employees to use such seats when it did not interfere with the performance of their duties.

Based on these violations, Employee will seek civil penalties pursuant to Labor Code section 2699(a) for himself and other current and former California-based hourly non-exempt warehouse employees who worked for Employer and who performed other duties that reasonably permitted the use of seats and/or who performed duties that required standing, but were not provided suitable seats within a reasonable proximity of their work areas for Employer’s violation of Wage Order 9 and California Labor Code section 1198, on behalf of the LWDA against Employer if authorized to filed a representative action on behalf of the State of California.

(Undisputed Separate Statement of Fact [“USSF”] 2; D-COE, Decl. of Campbell [Attach. B], Exh. 1 at pgs. 3-4.)  This letter is a string of conclusions which parrots the wage order.  Defendant sufficiently met its burden on summary adjudication, shifting the burden to Plaintiff to create a triable issue of material fact.

Plaintiff failed to submit evidence creating a triable issue of material fact as to whether he can satisfy PAGA’s mandatory pre-suit administrative requirement that his notice letter to the LWDA and Defendant set forth the “facts and theories to support the alleged” seating violations and does not parrot the allegedly violated Labor Code provisions.  (Brown, 28 Cal.App.5th at pg. 837.)

Accordingly, Defendant’s motion for summary judgment is granted.  Alternatively, for appeal purposes, summary adjudication of the Section 14 claim of the first cause of action is granted.

1. Whether Plaintiff’s cause of action based on Wage Order §15 fails because Plaintiff cannot establish an industry-wide standard for temperature that applies to Defendant’s California warehouse distribution centers [Issue 2]

Wage Order §15(A) provides, “[t]he temperature maintained in each work area shall provide reasonable comfort consistent with industry-wide standards for the nature of the process and the work performed.”  (8 Cal. Code Regs. §11070(15)(A).)  

To prove a violation of §15, Plaintiff must establish: (1) that Defendant failed to maintain the temperature in a work area in a range “provid[ing] reasonable comfort consistent with industry-wide standards for the nature of the process and the work performed”; and (2) that Plaintiff and other employees were subjected to the alleged excessive temperature.  (8 Cal. Code Regs. §11070(15)(A).)

Defendant argues Plaintiff’s cause of action based on Wage Order §15 fails because Plaintiff cannot establish an industry-wide standard for temperature applicable to Defendant’s warehouse operational floors.  (Memorandum, pg. 21.)

Defendant submitted evidence that Plaintiff’s 1st cause of action fails because Plaintiff cannot establish an industry-wide standard for temperature applicable to Defendant’s warehouse operational floors.  Specifically, Defendant submitted evidence that there is no industry standard applying to Defendant’s California warehouse distribution centers with respect to Wage Order §15(A) or maintenance of indoor temperatures: there are neither OSHA nor Cal/OSHA standards.  (Disputed Separate Statement of Fact [“DSSF”] 8; D-COE Decl. of Brown [Attach. A] ¶¶11, 12, 13, 14.)  Accordingly, Defendant met its burden on summary adjudication, shifting the burden to Plaintiff to create a triable issue of material fact. (See Fobroy v. Video Only, Inc. (N.D. Cal Nov. 14, 2014) 2014 WL 6306708, at *6 [granting summary adjudication of similar temperature claim where only evidence was Plaintiff’s declaration, but Plaintiff failed to “quantify the temperature or otherwise introduce evidence of applicable ‘industry-wide standards’”]; Jeske v. Maxim Healthcare Servs, Inc. (E.D. Cal. Jan. 10, 2012) 2012 WL 78242,  *17 [dismissing similar claim as plaintiff had failed to explain “how or why the temperature ... was not at reasonable/acceptable standards or was not consistent with industry-wide standards for the nature of the process and work performed”].)

Plaintiff failed to submit evidence that there is a triable issue of material fact as to whether there is an industry-wide temperature standard that applies to Defendant’s California warehouse distribution center work areas.  Plaintiff referred to American Conference of Governmental Industrial Hygienists [2016] Heat Stress and Heat Strain Threshold Limit Value, 2016 Threshold Limit Values and Biological Exposure Indices and a revised draft standard of Cal/OSHA’s Heat Illness Prevention in Indoor Places of Employment, but failed to produce that evidence to the Court or specifically explain how that evidence created a triable issue of material fact.  (DSSF 8; P-COE Decl. of Patel ¶4-5, Exhs. 1-2; P-RJN Exhs. 6-7.)  Moreover, an unadopted draft regulation, is not an industry-wide standard that can support Plaintiff’s claim.  (Cf. Chaparral Greens v. City of Chula Vista (1996) 50 Cal.App.4th 1134, 1145 & n.7 [“proposed or draft” regulations “cannot be said to be nonetheless legally applicable, or enforceable”]; Modern Management Method v. Superior Court (1971) 20 Cal.App.3d 496, 498 [“an as yet unadopted law” is irrelevant].)  Plaintiff failed to meet his burden to create a triable issue of material fact. 

Accordingly, Defendant’s motion for summary judgment is granted.  Alternatively, for appeal purposes, summary adjudication of the Section 15 claim of the first cause of action is granted.[1]

Dated:  December _____, 2022

Hon. Monica Bachner

Judge of the Superior Court