Judge: Peter Wilson, Case: 30-2019-01104920, Date: 2023-06-15 Tentative Ruling
Motion for Summary Adjudication
Plaintiff Marisela Mora seeks an order granting summary adjudication as against Defendant Diamond ZB Staffing Services, LLC of the following separate issues as to the Sixth Cause of Action for Wage Statement Violations under PAGA:
· Issue No. 1: Defendant Diamond violated Labor Code section 226, subdivision (a)(7) as a matter of law because Defendant Diamond showed the full nine digits of the social security numbers of Plaintiff and other employees on the wage statements the Defendant furnished Plaintiff and those other employees.
· Issue No. 2: Defendant has no defense on the issue of liability as to the Sixth Cause of Action because Defendant Diamond showed the full nine digits of the social security numbers of Plaintiff and other employees on the wage statements the Defendant furnished Plaintiff and those other employees.
· Issue No. 3: Plaintiff is entitled to recover on behalf of herself and other “aggrieved employees” the civil penalties provided in Labor Code section 2699, subdivisions (f)(2) and (e)(2), in the amounts to be determined at trial, a subsequent motion for summary adjudication, or other future proceedings, because Defendant Diamond showed the full nine digits of the social security numbers of Plaintiff and other employees on the wage statements the Defendant furnished Plaintiff and those other employees, in violation of Labor Code section 226(a)(7).
For the reasons stated below, the Motion is GRANTED as to Issue 1 and 2 and DENIED as to Issue 3.
ROA 350, Defendant’s objections to Plaintiff’s evidence are DENIED in their entirety.
ROA 351, Defendant’s Request for Judicial Notice of its Notice of Withdrawal of Motion to Compel Arbitration is GRANTED. The Court takes judicial notice of the date of filing and legal effect but not any hearsay statements.
The Court DENIES Defendant’s Request for Stay. Defendant argues that Plaintiff’s standing to bring PAGA claims is at issue because she was compelled to arbitration and then settled her case. Defendant seeks to continue this motion until a decision in Adolph v. Uber Technologies, which it contends will decide whether Plaintiff has standing to bring PAGA claims. ROA 349, Opp., pp. 1-2.
Plaintiff responds that there is no standing issue because under Kim v. Reins International California, Inc. (2020) 9 Cal.5th 73, 80, a plaintiff who settles or dismisses his or her individual claims may still pursue PAGA claims. Plaintiff further responds that Viking River Cruises, Inc. v. Moriana and Adolph v. Uber Technologies, Inc. do not affect Plaintiff’s standing because the arbitration agreement excluded all PAGA claims from arbitration, Plaintiff was never ordered to arbitration of any portion of her PAGA claims and the issue to be decided by Adolph is “whether an aggrieved employee who has been compelled to arbitrate claims under [PAGA] that are ‘premised on Labor Code violations actually sustained by’ the aggrieved employee … maintains statutory standing to pursue ‘PAGA claims arising out of events involving other employees’ in court or in any other forum the parties agree is suitable.” (Adolph v. Uber Technologies (August 1, 2022 Case No. S274671).)
Plaintiff is correct. Kim v. Reins International California, Inc. is controlling law on Plaintiff’s standing to bring PAGA claims.
Additionally, Plaintiff was only compelled to arbitrate her individual claims. ROA 270, Ex. 6, 10/8/2020 Minute Order [compelled to arbitrate the 1st-5th COAs in the FAC]. Plaintiff then waived her class claims and the Court stayed the remainder of the action. Id. [all PAGA claims]. On January 3, 2022, only Plaintiff’s individual claims against Defendant were dismissed since they settled her individual claims. ROA 173 and 175, Stip. and Order and Notice of Entry of Stip. and Order.
Summary Adjudication. 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 that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or 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. (Code Civ. Proc., § 437c(f)(1).)
In order to move for summary adjudication, the moving party must specify in its notice of motion and motion the claim, causes of action, or issues it is moving on. (CRC 3.1350.) The court has no power to adjudicate others. (Maryland Cas. Co. v. Reeder (1990) 221 Cal. App. 3d 961, 974 n. 4; Homestead Savings v. Superior Court (1986) 179 Cal. App. 3d 494, 498.)
A court may grant summary adjudication and terminate a specific cause of action without trial upon a showing that there is no triable issue of material fact. Cal. Civ. Proc. § 437c(f)(1). The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if the movant carries this burden of production, the burden shifts to the opposing party “to make a prima facie showing of the existence
of a triable issue of material fact.” (Choochagi v. Barracuda Networks, Inc. (2020) 60 Cal. App. 5th 444, 453.)
The moving party’s papers are to be strictly construed, while the opposing party’s papers are to be liberally construed. (Committee to Save Beverly Highland Homes Ass’n v. Beverly Highland (2001) 92 Cal.App.4th 1247, 1260.)
A court may not make credibility determinations or weigh the evidence on a motion for summary judgment or adjudication, and all evidentiary conflicts are to be resolved against the moving party. (McCabe v. American Honda Motor Corp. (2002) 100 Cal.App.4th 1111, 1119.)
Here, rather than seeking summary adjudication on the entire 6th COA, Plaintiff seeks summary adjudication on three “separate issues” concerning the 6th COA. ROA 268, NOM. Issue 1 (violation of Labor Code § 226(a)(7)) can be characterized as summary adjudication on the 6th COA while Issue 2 (no defenses) can be characterized as seeking summary adjudication on all defenses. But Issue 3 (penalties can be determined in the future) does not constitute a cause of action, affirmative defense, claim for damages or issue of duty.
Defendant does not argue that the separate issues identified by Plaintiff are not proper subjects of a summary adjudication motion.
Plaintiff contends that in order to establish her claim for PAGA civil penalties based on a violation of under Labor Code §226(a)(7), she does not need to prove the elements of “injury” and “knowing and intentional”. Plaintiff also contends she is not required to establish the amount of civil penalties in order to obtain summary adjudication on the 6th COA because penalties are not a required element. Plaintiff is correct.
In Lopez v. Friant & Associates, LLC (2017) 15 Cal.App.5th 773, the Appellate Court held that the trial court had improperly denied summary judgment on Plaintiff’s claim for PAGA civil penalties based on Labor Code § 226(a)(7) because the trial court believed Plaintiff was required to prove the elements of “injury” and “knowing and intentional” requirements of Labor Code § 226(e)(1). (Id. at 787-788.) In reaching this holding, the Lopez court explained that based on the plain text of the statute and its legislative history, the “injury” and “knowing and intentional” elements are for a private cause of action for damages and statutory penalties under Labor Code § 226(e)(1), but PAGA recognizes a claim for violation of Labor Code § 226(a) and does not mention Labor Code § 226(e). (Id. at 785.) Thus, a plaintiff seeking civil penalties under PAGA based on a violation of Labor Code § 226(a) need only show that he or show has complied with the administrative procedures under Labor Code § 2699.3, i.e. notice of the PAGA claims to the LWDA and allowing the employer the opportunity to cure certain violations not listed under Labor Code § 2699.5, and a violation of Labor Code § 226(a)(7).
Although not a PAGA case, People v. Superior Court of Los Angeles (2015) 234 Cal.App.4th 1360, 1364, 1379-1380 (Cahuenga’s the Spot) explained that civil penalties are a remedy and not a required element of a cause of action for an enforcement action. In Cahuenga’s the Spot, the trial court denied the People’s omnibus motion for summary judgment, or alternatively, for summary adjudication, on enforcement actions based on violations of the Los Angeles Municipal Code, California Health and Safety Code, and the state unfair competition law against more than 80 operators and owners of marijuana facilities, on the grounds that the People did not support their claims for civil penalties. (Id. at 1364.) The trial court held that the civil penalties are elements of the causes of action, and primarily relied on People v. Superior Court (1973) 9 Cal.3d 283 (Jayhill). The Appellate Court disagreed and held that the civil penalties are among the remedies available rather than elements of the cause of action. (Id.)
The Cahuenga’s on the Spot court explained that contrary to the trial court’s conclusion, Jayhill actually held that civil penalties are a form of relief under a cause of action for violation of Bus. & Prof. Code § 17500 and not part of the cause of action. (Cahuenga’s On the Spot, 234 Cal.App.4th at 1379-1380.) The Jayhill court explained that the Attorney General had a cause of action for violation of a particular statute, i.e. Bus. & Prof. Code § 17500 and among the remedies for that violation is the determination of civil penalties the amount of which is dependent on the number of violations of the statute committed by defendant. (Id. at 1380.) As such, the amount of civil penalties is not an element of the cause of action but a remedy.
Here too the amount of civil penalties under the PAGA statute is not part of the cause of action but a remedy, which an aggrieved employee may seek along with “other remedies available under state or federal law, either separately or concurrently with” an action under the PAGA statute. (Code Civ. Proc. § 2699(g)(1).)
Defendant does not dispute these arguments or address these issues.
It is undisputed that the 6th COA seeks PAGA civil penalties based on the violation of Labor Code §226(a)(7), which permits a wage statement to show the name of the employee and only the last four digits of that employee’s social security number. ROA 270, Ex. 3, ¶¶46-48. Plaintiff presents undisputed evidence that the full 9 digits of the social security numbers of 1,244 employees, including Plaintiff, were included in their wage statements. ROA 352, Defendant’s Opp. Sep. Stmt.
Defendant seeks to create triable issues of material fact based on its objections to the Mora Declaration and Jusuf Declaration. However, as indicated above, the Court overrules these objections. Plaintiff has personal knowledge of who she worked for and what was on her wage statements and her counsel has personal knowledge of the letter he sent to the LWDA and the response by the LWDA.
It appears Defendant disputes Plaintiff is its employee but has presented no evidence to support that argument. ROA 352, Opp. Sep. Stmt., UMF No. 1. Additionally, the undisputed declaration of Defendant’s own employee shows Plaintiff was Defendant’s employee. ROA 270, Ex. 5, Lake Decl., ¶2.
Defendant also argues that Plaintiff must present evidence of the existence of each alleged violation and each wage statement that showed the full SSNs and that they were all covered during the operative PAGA period. But Plaintiff met that requirement by presenting Defendant’s verified Supplemental Response to Special Interrogatory No. 20 in which Defendant represented that the full nine digits of employees’ social security numbers were provided to 1,244 employees from October 1, 2018 to December 31, 2022. ROA 270, Ex. 10, pp. 12 and 13.
Thus, Plaintiff met her burden of demonstrating she satisfied the administrative requirements under PAGA and that Defendant violated Labor Code § 226(a)(7). Defendant has presented no counter evidence or arguments that dispute Plaintiff’s evidence or demonstrates it has any defenses.
Accordingly, summary adjudication is GRANTED on Issue 1 and Issue 2, and DENIED as to Issue 3.
Discovery motions
Plaintiff seeks to compel defendant Diamond ZB Staffing Services, LLC to supplement its responses to Special Interrogatories (Set Two) Nos. 17, 18, 19, 23 and 24.
Plaintiff also seeks to compel Defendant to supplement its responses and produce documents responsive to Requests for Production of Documents (Set Two) Nos. 4, 5 and 6.
The parties respectively seek sanctions with respect to each of these motions.
These motions are continued to August 17, 2023 at 2 PM, and the Court hereby further Orders as follows.
The parties are ordered to meet and confer in person concerning all outstanding issues regarding these motions. In person means that the parties are to speak with each other, face to face or via telephone or videoconferencing. An exchange of correspondence will not be in compliance with this Order. The parties are Ordered to complete their meet and confer efforts by not later than June 30, 2023.
Regarding Special Interrogatories (Set Two) Nos. 17, 18, 19, 23 and 24, for any interrogatories not fully resolved in the meet and confer process, Defendant is ordered to file a verified supplemental response, by not later than July 14, 2023, without any objections other than those based on the attorney-client privilege and/or attorney work product. If defendant continues to elect to produce documents in lieu of responding to any of these interrogatories, all such documents, properly bates-stamped for identification, shall be produced by not later than July 14, 2023.
Regarding Requests for Production of Documents (Set Two) Nos. 4, 5 and 6, for any request not fully resolved in the meet and confer process, Defendant is ordered to file a verified supplemental response, by not later than July 14, 2023, without any objections other than those based on the attorney-client privilege and/or attorney work product. All responsive documents, properly bates-stamped for identification, shall be produced by not later than July 14, 2023.
With respect to any discovery withheld on the basis of the assertion of a privilege, Defendant shall serve on Plaintiff a privilege log by not later than July 14, 2023.
Unless these motions are fully resolved in the meet and confer process, Plaintiff may file a supplemental brief in support of each motion, not to exceed 10 pages excluding attachments, by not later than July 28, 2023, specifically identifying all remaining issues, and Defendant may file a supplemental opposition brief in each motion, not to exceed 10 pages excluding attachments, by not later than August 7, 2023.
Deposition of Veronica Lake
Plaintiff seeks to compel Defendant to produce Veronica Lake to appear for deposition, and monetary sanctions.
Defendant also seeks monetary sanctions against Plaintiff.
Subsequent to the filing of this Motion, Defendant has agreed to produce Veronica Lake for an in-person deposition on June 22, 2023 at Premier Workplaces, One Park Plaza, Suite 600, Irvine, CA 92614. ROA 365, Reply, p. 1, lines 17-18; ROA 367, Joint Status Report, p. 2, lines 2-6; ROA 369, Ex. A, p. 1, lines 20-24. Plaintiff nevertheless seeks an Order, to ensure that the deposition takes place as agreed.
The Court GRANTS the Motion. Per the parties’ agreement, Veronica Lake is ordered to appear for her deposition in person on June 22, 2023 at Premier Workplaces, One Park Plaza, Suite 600, Irvine, CA 92614.
Regarding this deposition, the Court denies all requests for monetary sanctions, as each side was substantially justified in her or its position.
Status Conference
The Court sets a further status conference on August 17, 2023 at 2 PM. The parties are ordered to file one joint status report, by not later than August 14, 2023. The status report need not address the discovery issues referenced above. The Court has reviewed the parties’ respective reports filed June 12, 2023 and reiterates: The parties are to meet and confer and file one joint status report.
Plaintiff is ordered to give notice as to all matters addressed herein.
All counsel are again directed to the Orange County Bar Association Civility Guidelines. The Court requires that those Guidelines be adhered to, in this case and all other cases before this Court.