Judge: Richard Y. Lee, Case: 30-2021-01231426, Date: 2023-08-17 Tentative Ruling
Plaintiff, Stephanie Loput, (“Plaintiff”) moves for summary adjudication on 23 issues including as to Defendants Line Drive Trucking, Inc. and Mark Ward’s Affirmative Defense Nos. 17, 21, 49, 61, 62, 63, 64, 65, 66, 70, 71, 72, 73, 74, 100, 107, 135, and 147 (Issues 1, 2, 4-19 and to Defendant Man Staffing, LLC’s Affirmative Defense No. 17 (Issue 20), as well as summary adjudication on the issues that Defendants were Plaintiff’s joint employer; that Plaintiff was misclassified as exempt; and that Plaintiff was not reimbursed for business expenses incurred for Defendants’ benefit. (Issues 21-23.)
Defendants Line Drive Trucking, Inc. (“Line Drive”) and Mark Ward (“M. Ward”) (together, “Defendants”) filed an opposition.
Defendant Man Staffing, LLC (“Man Staffing”) has not filed an opposition.
Plaintiff contends that the motion concerns three (3) primary issues, and the affirmative defenses related thereto: (1) That Line Drive, M. Ward, and Man Staffing were Plaintiff’s joint employers and are therefore liable for her damages; (2) That Plaintiff was misclassified as salaried/exempt when she should have been paid hourly under the law; and (3) That Defendants failed to reimburse Plaintiff for her business expenses. Plaintiff contends that the Court should grant summary adjudication as to Defendants Line Drive and M. Ward’s Affirmative Defense Nos. 49 (Issue 4), 70-74 (Issues 11-15), 100 (Issue 16), 107 (Issue 17), 135 (Issue 18), 147 (Issue 19) because they were joint employers with Man Staffing under the wages, hours, or working conditions test, under the suffer or permit test, and under the common law test.
Plaintiff also contends that summary adjudication should be granted as to Defendants’ Affirmative Defense Nos. 17 (Issue 1), 21 (Issue 2), 61-66 (Issues 5-10), as well as Defendant Man Staffing’s Affirmative Defense No. 17 (Issue 20) because the realistic requirements of Plaintiff’s dispatcher position clearly demonstrate that she was misclassified, the executive, administrative, professional, and computer professional exemptions do not apply, and Defendants cannot meet their burden of proving that Plaintiff performed exempt duties more than fifty percent of the time.
Lastly, Plaintiff contends that once the Court rules on the issue of Plaintiff’s misclassification as exempt, the Court should find that Defendants failed to reimburse Plaintiff for her necessary business expenses incurred for Defendants’ benefit as Plaintiff satisfies all of the elements required for reimbursement under Labor Code section 2802.
Defendants contend that Plaintiff motion violates the California Rules of Court as Plaintiff’s notice fails to specifically state the specific affirmative defenses by omitting essential parts of each affirmative defense, such as Affirmative Defense Nos. 21 and 100; that the 19 affirmative defenses and 3 issues were not repeated, verbatim, in Plaintiff’s Separate Statement; and that Plaintiff indiscriminately put together the joint employment issue and exemption issue along with all relevant affirmative defenses in violation of CRC, rule 3.1350(d)(1). As to the merits, Defendants assert that Plaintiff’s 3 “issues” concerning joint employment, misclassification, and business expenses are not “issues of duty” within the meaning of Code of Civil Procedure section 437c(f), and are “legal issues” which can be summarily adjudicated under Code of Civil Procedure section 437c(t), but that Plaintiff did not complete the requirements set forth therein, such that these three issues should not be considered.
Defendants also argue that Plaintiff cannot meet her initial burden as to Affirmative Defense Nos. 49 (Issue 4), 70-74 (Issues 11-15), 100 (Issue 16), 107 (Issue 17), 135 (Issue 18), 147 (Issue 19) as Plaintiff neglects to show a prima facie showing and fails to address any elements, reasoned argument or authorities for the 6th, 7th, 8th, 9th, 10th, 11th, 12th, and 13th causes of action to which these affirmative defenses and the joint employment issue are directed, such that Plaintiff’s Motion is abandoned and waived as to these affirmative defenses and the burden does not shift to Defendants to create a triable issue of material fact. Defendants argue that Plaintiff also failed to establish that Line Drive and M. Ward were indisputably her joint employers as the motion addressed only 9 of the 13 factors under the Borello test, omitting 4 factors when all potentially relevant factors must be considered, and that Plaintiff waived her joint employment claim based on the suffer and permit test which requires the joint employers’ knowledge of illegality and failure to prevent while they had the power to stop it as Plaintiff’s motion actually brought evidence of Defendant’s lack of education and understanding about labor law violations. Defendants additionally argue that Plaintiff’s evidence is mostly inadmissible for joint employment under the control test, Plaintiff relies on her own declaration of material facts in support of control, and triable issue of material fact exist as to the suffer and permit test and control test.
Additionally, Defendants assert that Plaintiff cannot meet her initial burden as to Affirmative Defense Nos. 17 (Issue 1), 21 (Issue 2), and 61-66 (Issues 5-10) and the exemption issue, and that Plaintiff fails make any prima facie showing for each element of her 6th, 7th, 8th, 9th, 11th, 12th, and 13th causes of action to which the subject defenses and exemption issue are directed such that these claims are waived as no points or reasoned argument or supporting authorities were contained in the motion as to each element of these causes of action. Defendants also argue that there are triable issues of material fact as to the applicability of the executive and administrative exemptions, and that no affirmative defenses at issue solely address professional exemption and computer professional exemption.
Finally, Defendants contend that summary adjudication should be denied as to Affirmative Defense Nos. 48 and 49 and the issue of business expense reimbursement because Plaintiff cannot meet her initial burden of production, because she cannot meet the initial burden of production to establish the joint employment of Line Drive and M. Ward, as stated above, and that triable issues of material facts exist as to whether Plaintiff incurred her personal cell phone fees for her work duties in obedience to the direction of Line Drive and M. Ward. Defendants argue that Plaintiff’s SS has no undisputed material fact regarding whether Plaintiff incurred home internet and home laptop fees in discharge of her duties to obey the directions of Defendants, that it is disputed whether Plaintiff incurred necessary costs regarding the three items at issue, and that Plaintiff had the company credit card and was authorized by Line Drive to charge “anything to pertain to work,” but declined to utilize it.
Procedural Deficiencies
In order to move for summary adjudication, the party moving must specify in its notice of motion and motion the claim, causes of action, or issues it is moving on. (California Rules of Court, Rule 3.1350 (b).) A notice of motion must state the “grounds upon which it will be made.” (Homestead Savings v. Superior Court (1986) 179 Cal.App.3d 494, 498 [citing Code Civ. Proc. § 1010] (“Homestead”).) The court has no power to adjudicate others. (Maryland Cas. Co. v. Reeder (1990) 221 Cal. App. 3d 961, 974 n. 4; Homestead, supra, 179 Cal. App. 3d at p. 498.) A party does not waive any requirement of notice for a subissue that was not set forth in the notice by responding to the argument. (Homestead, supra, 179 Cal. App. 3d at p. 498.)
The court in Homestead reasoned, “If a party desires adjudication of particular issues or subissues, that party must make its intentions clear in the motion. It is no doubt tempting for a trial court to ‘adjudicate’ subissues it considered during examination of an issue presented by the moving party. In many cases, the trial court’s analysis of the subissue may be correct and the defending party may have put forth all available evidence and argument on the subissue. But neither the moving party nor the court can be certain that the defending party has fully defended the subissue. Any gain in efficiency the court might make by adjudicating subissues not targeted by the motion is outweighed by the unfairness to the defending party who has not been properly notified of the danger of such a ruling.” (Homestead, supra, 179 Cal. App. 3d at p. 498.)
“A summary adjudication motion tenders only those issues or causes of action that are specified in the notice of motion and may only be granted as to these specified matters. A judge must deny the motion if the moving party fails to establish an entitlement to summary adjudication on the specified matters and cannot summarily adjudicate other issues or claims even if a basis to do so appears from the papers.” (California Judges Benchbook: Civil Proceedings-Before Trial § 13.45 Summary Judgment and Summary Adjudication Motions, citing Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 743-744.)
If summary adjudication is sought, “the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.” (California Rules of Court (“CRC”), rule 3.1350(b).)
CRC, rule 3.1350(d) states:
“(1) The Separate Statement of Undisputed Material Facts in support of a motion must separately identify:
“(A) Each cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion; and
“(B) Each supporting material fact claimed to be without dispute with respect to the cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion.”
(CRC, rule. 3.1350(d)(1)(A)-(B).)
Initially, the Court notes that the notice of motion sets forth a numbered list of Defendants Line Drive and M. Ward’s affirmative defenses which are at issue. Said numerical list does not include Affirmative Defense No. 48, although “Issue 3” purports to concern Affirmative Defense No. 48. The list of affirmative defenses set forth in Plaintiff’s SS likewise omits Affirmative Defense No. 48. Thus, the list of affirmative defenses at issue is not consistent with the issues set forth in the notice of motion as to Affirmative Defense No. 48.
Additionally, Plaintiff does not repeat the specific affirmative defenses or issues, verbatim, in the SS, and the SS does not separately identify each issue of duty or affirmative defense and each supporting material fact claimed to be without disputes as to the issue of duty or affirmative defense.
In light of the omissions noted above, the Court declines to address Affirmative Defense No. 48.
“Issue of Duty” and Affirmative Defenses
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).) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Ibid.)
“[O]n a motion for summary adjudication, the court may rule whether a defendant owes or does not owe a duty to plaintiff without regard for the dispositive effect of such ruling on other issues in the litigation, except that the ruling must completely dispose of the issue of duty.” (Linden Partners v. Wilshire Linden Associates (1998) 62 Cal.App.4th 508, 521.) The words “an issue of duty” apply not only to negligence causes of action but to the existence or nonexistence of a duty in nature of contractional obligation. (Id. at pp., 517-518.)
Plaintiff seeks adjudication on three purported issues: (1) that Defendants were Plaintiff’s joint employers (Issue 21); (2) that Plaintiff was misclassified as exempt (Issue 22); and (3) that Plaintiff was not reimbursed for business expenses incurred for Defendants’ benefit (Issue 23). As relevant here, none of these issues appear to constitute “an issue of duty” as they do not seek whether Defendants either owed or did not owe a duty to Plaintiff. Plaintiff fails to show that any of these three issues constitutes “an issue of duty” as contemplated under Code of Civil Procedure section 437c(f)(1). Therefore, the Court does not reach Issues 21-23.
Defendants argue that Plaintiff’s notice fails to specifically state the specific affirmative defenses by omitting essential parts of each affirmative defense, such as Affirmative Defense Nos. 21 and 100. This is accurate. Affirmative Defense No. 21 concerns the allegation that “[s]ome or all of Plaintiff’s claims resulting from a reclassification of Plaintiff’s exempt employee status must be reduced by the doctrine of set-off, rescission, and/or restitution.” (Defendant’s Answer, at p. 4, ROA 25.) However, the allegation of reclassification and the doctrines are not address. Additionally, Defendants’ Affirmative Defense No. 100 alleges, “Plaintiff’s retaliation claims are barred to the extent that non-employer individuals are not personally liable for their role in retaliation, if any.” (Id. at p. 12.) Plaintiff does not address whether a non-employer individual is personally liable. Based on the foregoing, Plaintiff fails to completely resolve these affirmative defenses at the outset, and the motion for summary adjudication is DENIED as to Issues 2 and 16 (Affirmative Defense Nos. 21 and 100, respectively).
Merits on Affirmative Defenses
“A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment.” (Code Civ. Proc. § 437c(f)(2).)
“A ‘party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.’ [Citation.] Once the moving party meets this initial burden, the burden then shifts to the party opposing summary judgment to establish, by means of competent and admissible evidence, that a triable issue of material fact still remains. [Citation.]” (Brown v. Ransweiler (2009) 171 Cal.App.4th 516, 525–526.)
“The plaintiff bears the initial burden to show there is no triable issue of material fact as to the defense and that he or she is entitled to judgment on the defense as a matter of law. In so doing, the plaintiff must negate an essential element of the defense, or establish the defendant does not possess and cannot reasonably obtain evidence needed to support to the defense. [Citations.]
“If the plaintiff does not make this showing, it is unnecessary to examine the [defendant’s] opposing evidence and the motion must be denied. [Citation.] However, if the moving papers establish a prima facie showing that justifies a [ruling] in the [plaintiff’s] favor, the burden then shifts to the [defendant] to make a prima facie showing that justifies a [ruling] in the [plaintiff’s] favor, the burden then shifts to the [defendant] to make a prima facie showing of the existence of a triable material factual issue. [Citation.]”
(See’s Candy Shops, Inc. v. Superior Court (2012) 210 Cal.App.4th 889, 900, internal quotations and citations omitted.)
All of the evidence and all of the inferences reasonably drawn therefrom must be viewed in the light most favorable to the opposing party. (See’s Candy Shops, supra, 210 Cal.App.4th at p. 900.) “Summary adjudication is a drastic remedy and any doubts about the propriety of summary adjudication must be resolved in favor of the party opposing the motion. [Citation.]” (Ibid.)
A moving party should “[i]nclude only those facts which are truly material to the claims or defenses involved because the separate statement effectively concedes the materiality of whatever facts are included. Thus, if a triable issue is raised as to any of the facts in [the] separate statement, the motion may be denied.” (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252.) “[T]he court’s sole function on a motion for summary judgment is to determine from the submitted evidence whether there is a ‘triable issue as to any material fact’ [citation], and to be ‘material’ a fact must relate to some claim or defense in issue under the pleadings [citation].” (Zavala v. Arce (1997) 58 Cal.App.4th 915, 926.)
Here, Plaintiff seeks summary adjudication of Defendants Line Drive and Ward’s Affirmative Defense Nos. 17, 21, 49, 61, 62, 63, 64, 65, 66, 70, 71, 72, 73, 74, 100, 107, 135, and 147 (Issues 1, 2, 4-19) and to Defendant Man Staffing’s Affirmative Defense No. 17 (Issue 20). Adjudication of these affirmative defenses rests on the same three issues above. That Plaintiff was misclassified as exempt goes to Defendants Line Drive and Ward’s Affirmative Defense Nos. 17 (Issue 1), 21 (Issue 2), 61-66 (Issues 5-10), as well as Defendant Man Staffing’s Affirmative Defense No. 17 (Issue 20). That all defendants were Plaintiff’s joint employers goes to Defendants Line Drive and Ward’s Affirmative Defense Nos. 49 (Issue 4), 70-74 (Issues 11-15), 100 (Issue 16), 107 (Issue 17), 135 (Issue 18), 147 (Issue 19).
Despite seeking summary adjudication on 18 affirmative defenses as to Defendants and one (1) affirmative defense as to Defendant Man Staffing, Inc., Plaintiff does not set forth, address, or discuss any of the elements of any of the affirmative defenses upon which Plaintiff seeks summary adjudication, and does not show that any of the purported affirmative defenses at issue is a new matter constituting an affirmative defense, as opposed to a specific denial.
An answer may include a general denial, specific denial or new matter constituting an affirmative defense. (Code Civ. Proc. §431.30(b).) A general denial in an answer puts in issue the material allegations of the complaint, including all essential elements of the claims. (Advantac Group, Inc. v. Edwin’s Plumbing Co., Inc. (2007) 153 Cal.App.4th 621, 627.) “New matter” is something relied on by a defendant which is not put in issue by the plaintiff, and including any issue on which defendant bears the burden of proof which must be specially pleaded in the answer. (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 239; Quantification Settlement Agreement Cases (2011) 201 Cal.App.4th 758, 812-813)
To the extent that any of the purported affirmative defenses at issue, is, in fact, an affirmative defense, Plaintiff fails to show that an essential element for Defendants’ Affirmative Defense Nos. 17 (Issue 1), 21 (Issue 2), 61-66 (Issues 5-10), as well as Defendant Man Staffing’s Affirmative Defense No. 17 is that Plaintiff was misclassified as exempt. Similarly, Plaintiff fails to show that an essential element for Defendants’ Affirmative Defense Nos. 49 (Issue 4), 70-74 (Issues 11-15), 100 (Issue 16), 107 (Issue 17), 135 (Issue 18), and 147 (Issue 19) is that all defendants were Plaintiff’s joint employers. Accordingly, Plaintiff fails meet her burden to show that she has negated an essential element of each and every one of the purported affirmative defenses at issue.
As Plaintiff has failed to meet her initial burden, the Court need not examine the opposing evidence, and the motion for summary adjudication is DENIED in its entirety.
Defendants’ Objections to Evidence (ROA 102)
Defendants assert objections to the Declaration of Stephanie Loput and the deposition testimony of Vanessa Navarro.
“In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to the disposition of the motion.” (Code Civ. Proc. § 437c(q).)
In light of the Court’s ruling above, the objections are not material to the disposition of the motion.
Defendants to give notice.