Judge Robert B. Broadbelt, Case 20STCV14710 2022-07-28 Tentative Ruling

Judge: Robert B. Broadbelt, Case: 20STCV14710, Date: 2022-07-28 Tentative Ruling

Tentative rulings are sometimes, but not always, posted. The purpose of posting a tentative ruling is to to help focus the argument. The posting of a tentative ruling is not an invitation for the filing of additional papers shortly before the hearing.

Case Number: 20STCV14710 Hearing Date: July 28, 2022 Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

antonio ulloa ; Plaintiff, vs. sasco , et al., Defendants.	Case No.:	20STCV14710

	Hearing Date:	July 28, 2022

	Time:	10:00 a.m.

	[Tentative] Order RE: motion for summary judgment or, in the alternative, summary adjudication

MOVING PARTY: Defendant SASCO

RESPONDING PARTY: Plaintiff Antonio Ulloa

Motion for Summary Judgment or, in the Alternative, Summary Adjudication

The court considered the moving, opposition, and reply papers filed in connection with this motion.

REQUEST FOR JUDICIAL NOTICE

The court denies Plaintiff’s request for judicial notice as an improper subject for judicial notice. (Evid. Code § 452.)

EVIDENTIARY OBJECTIONS

The court overrules Plaintiff’s evidentiary objections, filed August 2, 2021.

The court rules on Defendant’s evidentiary objections, filed August 11, 2021, as follows:

The court sustains Objections Nos. 1, 3.

The court overrules Objection No. 2.

LEGAL STANDARD

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant or cross-defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) “Once the defendant or cross-defendant has met that 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.” (Code Civ. Proc., § 437c, subd. (p)(2).) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.) “When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Id. at p. 467; Code Civ. Proc., § 437c, subd. (c).)

DISCUSSION

Defendant SASCO moves for summary judgment or, in the alternative, summary adjudication as to each of Plaintiff’s sixteen causes of action. Because Plaintiff’s eleventh cause of action for failure to pay wages due is based on the allegations that Plaintiff was not paid (1) overtime wages and (2) additional compensation for each day that he was not provided a meal and rest period, the court elects, for purposes of clarity, to first discuss Plaintiff’s twelfth and thirteenth causes of action for failure to pay overtime compensation and failure to provide meal and rest periods, respectively, before addressing Plaintiff’s eleventh cause of action. The court addresses all other causes of action in numerical order.

1. Motion for Summary Judgment: NLRA Preemption

Defendant first moves the court for an order granting summary judgment on the ground that Plaintiff’s Complaint is preempted by the National Labor Relations Act (NLRA). “When it is clear or may fairly be assumed that the activities which a State purports to regulate are protected by [section] 7 of the National Labor Relations Act, or constitute an unfair labor practice under [section] 8, due regard for the federal enactment requires that state jurisdiction must yield.” (San Diego Bldg. Trades Council v. Garmon (1959) 359 U.S. 236, 244.) This principle is referred to as the “Garmon preemption.”

The court finds that Defendant has not met its burden of showing that Plaintiff’s Complaint has no merit because Defendant has not shown that the Complaint is barred by the National Labor Relations Act. Defendant contends that Plaintiff’s Complaint falls within the protection afforded by the NLRA because Plaintiff contends that he was discriminated and retaliated against for exercising his protective statuses and complaining about wage and hour violations.

The Garmon preemption “is subject to exceptions where the activity in question is a ‘merely peripheral concern’ of the NLRA, or where ‘the regulated conduct touche[s] interests so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction, we could not infer that Congress had deprived the States of the power to act.’” (Doe v. Google, Inc. (2020) 54 Cal.App.5th 948, 957.) This preemption “‘has its greatest force when applied to state laws regulating the relations between employees, their union, and their employer.’” (Ibid.)

The court finds that Defendant has failed to meet its burden to establish that each of Plaintiff’s causes of action is preempted by the NLRA, and has instead argued, in conclusory fashion, that, because Plaintiff (1) is a member of the Electrician Union and subject to the union’s Collective Bargaining Agreement and (2) has alleged claims of discrimination, retaliation, and violations of wage and hour laws, his entire action is precluded. Even if Defendant had presented argument and evidence in support of its preemption argument, the court would conclude that Plaintiff’s Complaint does not implicate the NLRA.

Defendant has not proven that Plaintiff’s Complaint concerns (1) his and other employee’s rights to self-organization, collective bargaining, or to engage in other concerted activities for the purpose of collective bargaining or (2) unfair labor practices by an employer due to interference with the rights guaranteed in section 7 or the administration of any labor organization, discrimination in regard to the hire or tenure of employment to encourage or discourage membership in any labor organization, or discrimination against an employee because he filed charges or gave testimony under the NLRA. (29 U.S.C. §§ 157, 158.) Instead, Plaintiff’s claims focus on harms suffered as an individual employee. Specifically, Plaintiff’s FEHA causes of action are based on alleged discrimination and retaliatory acts taken against him by Defendant based on his protected characteristics (age and disability) and because he engaged in protected acts in exercising his right to medical leave. Accordingly, Plaintiff has not alleged that Defendant discriminated against him “to encourage or discourage membership in any labor organization.” (29 U.S.C. § 158, subd. (a)(3).)

Similarly, Plaintiff’s wage and hour claims are based on allegations that Defendant failed to pay wages lawfully owed. Plaintiff’s claims are not, for example, based on allegations that Defendant ordered Plaintiff and other employees not to discuss wages in an effort to interfere or discourage the formation of a labor organization. “Nothing about the NLRA manifests a purpose to displace state labor laws regulating wages, hours, and other terms of employment, as the NLRA is “aimed at ‘safeguard[ing], first and foremost, workers' rights to join unions and to engage in collective bargaining.’” (Doe, supra, 54 Cal. App. 5th at p. 961.) The court finds that the matters complained of by Plaintiff are merely peripheral to the NLRA.

The court therefore finds that Defendant has not met its burden to establish that the NLRA preempts each cause of action asserted in Plaintiff’s Complaint.

The court therefore denies Defendant’s motion for summary judgment as to the Complaint on the ground of preemption under the National Labor Relations Act.

2. First Cause of Action for Discrimination in Violation of FEHA (Issue Nos. 1-3)

It is an unlawful employment practice for an employer, because of race, color, sex, gender, age, or physical or mental disability, to bar or discharge a person from employment or to discriminate against the person in terms, conditions, or privileges of employment. (Gov. Code § 12940, subd. (a).) “A prima facie case for discrimination ‘on grounds of physical disability under the FEHA requires plaintiff to show: (1) he suffers from a disability; (2) he is otherwise qualified to do his job; and (3) he was subjected to adverse employment action because of his disability.’” (Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 344-345.) Similarly, “[i]n order to make out a prima facie case of age discrimination under FEHA, a plaintiff must present evidence that the plaintiff (1) is over the age of 40; (2) suffered an adverse employment action; (3) was performing satisfactorily at the time of the adverse action; and (4) suffered the adverse action under circumstances that give rise to an inference of unlawful discrimination, i.e., evidence that the plaintiff was replaced with someone significantly younger than the plaintiff.” (Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 321.)

The McDonnell Douglas burden-shifting test has been adopted in employment discrimination cases that do not involve mixed motives. (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 214.) Under this test, the “plaintiff has the initial burden to make a prima facie case of discrimination by showing that it is more likely than not that the employer has taken an adverse employment action based on a prohibited criterion. A prima facie case establishes a presumption of discrimination. The employer may rebut the presumption by producing evidence that its action was taken for a legitimate, nondiscriminatory reason. If the employer discharges this burden, the presumption of discrimination disappears. The plaintiff must then show that the employer's proffered nondiscriminatory reason was actually a pretext for discrimination, and the plaintiff may offer any other evidence of discriminatory motive. The ultimate burden of persuasion on the issue of discrimination remains with the plaintiff.” (Id. at pp. 214-215.)

The court finds that Defendant has not met its burden of showing that the first cause of action for discrimination has no merit because Defendant has not shown that the element of an adverse employment action cannot be established. It is undisputed that Plaintiff was terminated on February 28, 2019. (Undisputed Material Fact (“UMF”) No. 44.) The termination of a plaintiff-employee constitutes an adverse employment action. (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 885 [explaining that an element of an unlawful discrimination claim requires proof that the plaintiff “suffered an adverse employment action such as termination”].)

The court therefore denies Defendant’s motion for summary adjudication as to the first cause of action for discrimination on the ground that there was no adverse employment action.

The court finds that Defendant has met its burden of showing that the first cause of action for discrimination has no merit because Defendant has shown that an element of the cause of action (causation, i.e., that Plaintiff was subjected to an adverse employment action because of his protected characteristics) cannot be established.

Defendant contends that Plaintiff was laid off because it had been determined that, after reviewing the schedule for the Mobilitie project to which Plaintiff was assigned, one installation crew needed to be terminated, therefore establishing a legitimate business reason for termination. Defendant further contends that Plaintiff has no evidence of pretext because (1) Plaintiff was hired when he was 51 years old; (2) the younger employee Plaintiff contends replaced him had been hired nearly two years prior to Plaintiff’s termination; (3) a stray remark by Andres Contreras or Frank Niels is insufficient to meet his burden; (4) no issues with Plaintiff’s disability arose after Plaintiff’s return; and (5) Plaintiff does not have a medical condition as contemplated by FEHA. Defendant introduces the following evidence. First, Angel Marquez (“Marquez”) states in his declaration that Plaintiff was chosen to be laid off after the field team learned the Mobilitie job had started to ramp down, and because Plaintiff’s crew would be finished with their scope of work by the end of February, 2019. (Def. Material Fact Nos. Marquez Decl., ¶¶ 3-4.) Second, Andres Contreras (“Contreras”) testified that he suggested to Marquez that Plaintiff be terminated because (1) the Mobilitie project was coming to an end and (2) Plaintiff was “doing things [Contreras] wasn’t aware of on the project on his own.” (Ex. F, Contreras Dep., 24:11-13, 26:4-13.) The court finds that this evidence establishes that Defendant terminated Plaintiff for legitimate, business reasons due to the Mobilitie project coming to a close and perceived issues with Plaintiff’s insubordination.

The court finds that Plaintiff has not met his burden to show that a triable issue of material fact exists as to the element of causation (i.e., that Plaintiff was subjected to an adverse employment action because of his protected characteristics). First, Plaintiff argues that Superintendent Jack Ivy (“Ivy”) testified that work on the Mobilitie project continued to be performed following his termination. Although Ivy did acknowledge that another crew “was going to finish the other sites” before the conclusion of the project, Ivy testified that Plaintiff’s crew had finished “the poles that they were doing in their area” such that there was no more work for Plaintiff and his crew member, Edgar Alvarez (“Alvarez”). (Pl. COE, Ex. 3, Ivy Dep., 30:16-20.) Ivy later confirmed that the remaining crew on the Mobilitie project finished their antenna sites before the project ended. (Pl. COE, Ex. 3, Ivy Dep., 39:7-10.) Thus, this evidence is insufficient to establish that Plaintiff’s termination was pretextual, as Ivy’s testimony establishes that the other crew continued to work on the Mobilitie project in order to finish their assignments.

Second, Plaintiff contends that two other projects, which were staffed with journeymen electricians, were ongoing at the time of his termination. Campos testified that, in early 2019, Campos was working with the Ameron and Edison projects. (Pl. COE Ex. 4, Campos Dep., 29:22-30:1.) As of the date of his deposition, Campos testified that four crew members working on the Edison project had the same job title that Plaintiff had in early 2019. (Pl. COE, Ex. 4, Campos Dep., 30:2-8.) As of the date of his deposition, Campos testified that five crew members working on the Ameron project had the same job title that Plaintiff had in early 2019. (Pl. COE Ex. 4, Campos Dep., 30:9-15.) Based on this evidence, Plaintiff contends that (1) he had previously worked on the Ameron project and could have been transferred, and (2) “all” of the journeymen electricians were younger than Plaintiff and did not have a disability. (Opp., 20-21.) Specifically, one such journeyman, Daniel Rios, was moved to the Ameron steel pole replacement project. (Pl. COE Ex. 5, Contreras Dep., 39:19-22.) Daniel Rios is younger than Plaintiff, and was estimated to be “in his thirties.” (Pl. COE Ex. 5, Contreras Dep., 45:18-46:10.) One other unidentified journeyman was estimated to be in his thirties, and a third was estimated to be “older” and “close” to Plaintiff’s age. (Pl. COE Ex. 5, Contreras Dep., 46:11-47:1.) This evidence is insufficient to establish discriminatory motive, because (1) Defendant retained another journeyman “close” to Plaintiff’s age; (2) Plaintiff was hired in 2013, when he was 51 years old (UMF 9), which negates the inference that he was terminated due to his age; and (3) although Plaintiff contends that the other journeymen did not have a disability, Plaintiff introduces no evidence of that fact.

Third, as to Albert Paz, the court recognizes that, although there is no evidence identifying his exact age, it appears undisputed that Paz is younger than Plaintiff. However, that Paz later became a journeyman electrician is not sufficient to establish that Paz was groomed to replace Plaintiff, as argued. Plaintiff’s evidence confirms only that (1) Paz was hired in August of 2017, one and a half years before Plaintiff was terminated, and (2) Paz became a journeyman electrician through Defendant and the union’s apprenticeship program. (UMF 57, Pl. COE Ex. 5, Contreras Dep., 33:19-22) This is insufficient.

Finally, the court recognizes that Contreras testified that he “might have” called Plaintiff an “old-timer” “once or twice.” (Pl. COE, Ex. 5, Contreras Dep., 70:16-18, 71:3-5.) Defendant contends that any comments made to Plaintiff about being an “old-timer” amount to nothing more than a stray remark and is therefore insufficient to establish discriminatory motive. Under this doctrine, “a ‘stray’ discriminatory remark that a court determines is unconnected to the adverse employment action is insufficient evidence of a discriminatory motive, as a matter of law, and may be wholly disregarded by the court. [Citations.] However, the Supreme Court recently clarified that California courts are not to apply the stray remarks doctrine because ‘its categorical exclusion of evidence might lead to unfair results.’ [Citation.]” (Sandell, supra, 188 Cal. App. 4th at p. 320.) The court, therefore, does not exclude or disregard these admitted remarks. However, this is the only remaining evidence proffered by Plaintiff in support of his contention that his termination was pretextual. The court finds that this evidence, alone, is insufficient to establish discriminatory animus.

The court therefore grants Defendant’s motion for summary adjudication as to the first cause of action for discrimination in violation of FEHA.

3. Second Cause of Action for Retaliation in Violation of FEHA (Issue Nos. 4-6)

“[I]n order to establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a ‘protected activity,’ (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer's action.” (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) “The causal link may be established by an inference derived from circumstantial evidence, ‘such as the employer's knowledge that the [employee] engaged in protected activities and the proximity in time between the protected action and allegedly retaliatory employment decision.” (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 69.)

The court finds that Defendant has met its burden of showing that the second cause of action for retaliation has no merit because Defendant has shown that an element of the cause of action (a causal link between Plaintiff’s protected activity and his termination) cannot be established. As set forth above, Defendant has introduced evidence that Plaintiff’s termination was based on legitimate business reasons (i.e., the conclusion of the project to which Plaintiff was assigned) and not because of Plaintiff’s exercise of his right to take medical leave.

The court finds that Plaintiff has not met his burden to show that a triable issue of material fact exists as to the element of causation. The court notes that Plaintiff references evidence regarding his complaints made about meal and rest periods and safety violations, as well as the comments made about his age. However, in this cause of action, Plaintiff has only alleged that the protected activity consisted of him “taking medical leave.” (Compl., ¶¶ 49, 51.) Accordingly, the evidence relating to allegedly discriminatory comments about Plaintiff’s age, as well as Plaintiff’s other, unrelated wage and hour complaints are irrelevant to this cause of action.

Plaintiff contends that there are triable issues of fact as to Defendant’s retaliatory motive because (1) Plaintiff took medical leave which was known by Defendant and (2) Defendant terminated Plaintiff within a short time after his medical leave. (Opp., 17:6-9.) The court finds this evidence to be insufficient to establish pretext. “[T]emporal proximity, although sufficient to shift the burden to the employer to articulate a nondiscriminatory reason for the adverse employment action, does not, without more, suffice also to satisfy the secondary burden borne by the employee to show a triable issue of fact on whether the employer’s articulated reason was untrue and pretextual.” (Loggins v. Kaiser Permanente International (2007) 151 Cal.App.4th 1102, 1112.)

The court therefore grants Defendant’s motion for summary adjudication as to the second cause of action for retaliation in violation of FEHA.

4. Third Cause of Action for Failure to Prevent Discrimination and Retaliation in Violation of FEHA (Issue Nos. 7-11)

It is an unlawful employment practice for an employer to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring. (Gov. Code § 12940, subd. (k).) A cause of action for failure to prevent must be based on claims of discrimination or harassment. (Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 289 [“Employers should not be held liable to employees for failure to take necessary steps to prevent such conduct, except where the actions took place and were not prevented”].)

The court finds that Defendant has met its burden of showing that the third cause of action for failure to prevent discrimination and retaliation has no merit because Defendant has shown that an element of the cause of action (an underlying claim of discrimination or harassment) cannot be established since the court has granted Defendant’s motion for summary adjudication on Plaintiff’s first cause of action for discrimination and second cause of action for retaliation in violation of FEHA.

The court finds that Plaintiff has not met his burden to show a triable issue of material fact exists as to the element of a valid, underlying cause of action for discrimination and retaliation since Plaintiff has failed to show that triable issues of material fact exist as to his first and second causes of action.

The court therefore grants Defendant’s motion for summary adjudication as to the third cause of action for failure to prevent discrimination and retaliation in violation of FEHA.

5. Fourth Cause of Action for Failure to Provide Reasonable Accommodation in Violation of FEHA (Issue Nos. 12-13)

It is an unlawful employment practice for an employer to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee. (Cal. Gov. Code § 12940, subd. (m)(1).) “The essential elements of a failure to accommodate claim are: (1) the plaintiff has a disability covered by the FEHA; (2) the plaintiff is a qualified individual (i.e., he or she can perform the essential functions of the position); and (3) the employer failed to reasonably accommodate the plaintiff’s disability.” (Cuiellette v. City of Los Angeles (2011) 194 Cal.App.4th 757, 766 [internal quotations omitted].) ‘“[R]easonable accommodation’ in the FEHA means…a modification or adjustment to the workplace that enables the employee to perform the essential functions of the job held or desired.” (Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 974.) Thus, “an employer is liable under section 12940(m) [of the FEHA] for failing to accommodate an employee only if the work environment could have been modified or adjusted in a manner that would have enabled the employee to perform the essential functions of the job.” (Id. at p. 975.)

The court finds that Defendant has met its burden of showing that the fourth cause of action for failure to provide reasonable accommodation has no merit because Defendant has shown that an element of the cause of action (the failure to reasonably accommodate Plaintiff) cannot be established. On October 15, 2018, Plaintiff suffered a heart attack while at work and was taken to the hospital. (UMF Nos. 23-24.) Plaintiff was asked about the nature of his disability, for which Defendant discriminated against Plaintiff, and testified that it was his heart attack. (Def. COE Ex. B, Ulloa Dep., 48:17-20 [Plaintiff was asked “what is the disability you believe you were discriminated for?” and testified “My age, my heart attack…”].) It is undisputed that Defendant never denied Plaintiff the leave requested as a result of his heart attack. (UMF No. 28; Def. COE Ex. C, Smith Dep., 60:2-7.)

The court finds that Plaintiff has not met his burden to show that a triable issue of material fact exists as to the element of Defendant’s failure to provide reasonable accommodation to Plaintiff. Plaintiff testified that, when he returned to work following his heart attack, he was able to perform all the tasks assigned to him. (Pl. COE Ex. 1, Ulloa Dep., 85:2-12.) Plaintiff did not ask for an accommodation, and stated that he had been released “for full capacity” by the time he returned to work. (Pl. COE Ex. 1, Ulloa Dep., 85:15-24.) Plaintiff argues that (1) Defendant was required to accommodate the residual effects of Plaintiff’s disability by allowing him to take additional breaks, and (2) Defendant could not have reasonably accommodated Plaintiff because Ivy testified that he had not heard of the term “reasonable accommodation.” The court finds that the evidence and argument submitted by Plaintiff are insufficient, because (1) there is no evidence demonstrating that Plaintiff suffered any residual effects for which accommodation was required, especially considering that Plaintiff testified that he was able to perform all required tasks, and (2) that Ivy had never heard the legal term “reasonable accommodation” does not establish that Plaintiff was entitled to and denied a reasonable accommodation. (Pl. COE Ex. 1, Ulloa Dep., 85:2-12; Pl. COE Ex. 3, Ivy Dep., 40:19-21 [testifying that he had not heard the term reasonable accommodation].)

Finally, the court notes that, in the Separate Statement, Plaintiff state that he was diagnosed with injuries to his neck, back, right ankle, and bilateral knees. (Pl. Response to Def. Material Fact No. 29.) The report which includes these findings was based on an April 6, 2019 examination. (Pl. COE Ex. 7, PL000002.) Although the report indicates that he has reported injuries to Defendant, there is no evidence that (1) these injuries rendered Plaintiff unable to perform his duties without an accommodation and (2) Plaintiff had obtained a medical diagnosis before April 6, 2019, which followed his February 28, 2019 termination. The court therefore finds this evidence insufficient to show that a triable issue of material fact exists as to whether Defendant failed to provide to Plaintiff a reasonable accommodation.

The court therefore grants Defendant’s motion for summary adjudication as to the fourth cause of action for failure to provide reasonable accommodation.

6. Fifth Cause of Action for Failure to Engage In Good Faith Interactive Process in Violation of FEHA (Issue Nos. 14-15)

It is an unlawful employment practice for an employer or other entity to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition. (Cal. Gov. Code § 12940, subd. (n).) To prevail on a failure to engage claim, “an employee must identify a reasonable accommodation that would have been available at the time the interactive process should have occurred.” (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1018.)

The court finds that Defendant has met its burden of showing that the fifth cause of action for failure to engage in the good faith interactive process has no merit because Defendant has shown that an element of the cause of action (the failure to engage in the interactive process) cannot be established. Defendant introduces Plaintiff’s deposition testimony, wherein Plaintiff stated that he did not ask for an accommodation to assist Plaintiff in performing his job. (Def. COE Ex. B, Ulloa Dep., 95:15-19.) An employee “must initiate the process unless the disability and resulting limitations are obvious.” (Scotch, supra, 173 Cal.App.4th at p. 1013.) “If the employee fails to request an accommodation, the employer cannot be held liable for failing to provide one.” (Spitzer v. Good Guys, Inc. (2000) 80 Cal.App.4th 1376, 1384.) Plaintiff testified that he was able to perform all required tasks, thereby establishing that any limitations as a result of Plaintiff’s heart attack were not obvious. (Def. COE Ex. B, Ulloa Dep., 85:1-12.) Defendant has established that Plaintiff did not request an accommodation, and therefore did not meet his burden in specifically identifying his disability, the resulting limitations, and to suggest reasonable accommodations. (Scotch, supra, 173 Cal.App.4th at p. 1013.) Defendant has therefore met its burden to show that it did not fail to engage in the interactive process with Plaintiff.

The court finds that Plaintiff has not met his burden to show that a triable issue of material fact exists as to the element of Defendant’s failure to engage in the interactive process. Plaintiff argues that Defendant was aware of the need for an accommodation because Plaintiff requested reasonable accommodations of rest and meal breaks and the ability to work at a slower pace. Plaintiff states in his declaration that he spoke to Contreras and informed him that he would need to work at a slower pace due to his heart attack. (Ulloa Decl., ¶ 7.) In addition, Plaintiff argues that Defendant did not engage in the interactive process with him because (1) Defendant’s General Executive, Smith, testified that he did not know what the term “good faith interactive process” meant and (2) Superintendent Ivy testified that he had never heard the term “interactive process.” (Pl. COE Ex. 2, Smith Dep., 21:25-22:2; Pl. COE Ex. 3, Ivy Dep., 40:16-18.) The court finds that Plaintiff’s evidence is insufficient to show that a triable issue of material fact exists.

First, Plaintiff’s statement to Contreras does not appear to be an initiation of the good faith interactive process, because Plaintiff testified in deposition that he had not previously asked for an accommodation and that he was able to perform all required tasks. Second, that Smith and Ivy did not have a full, legal understanding of the term “interactive process” does not establish that Defendant failed to engage in this process with Plaintiff. “[I]n order to avert summary judgment the plaintiff must produce substantial responsive evidence sufficient to establish a triable issue of material fact on the merits of the defendant’s showing.” (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 162-163.) The court finds that Plaintiff has failed to introduce “substantial responsive evidence” to show that a triable issue of material fact exists as to Plaintiff’s initiation of the interactive process and Defendant’s subsequent failure to engage therein.

The court therefore grants Defendant’s motion for summary adjudication as to the fifth cause of action for failure to engage in the interactive process.

7. Sixth Cause of Action for Retaliation in Violation of the California Family Rights Act (Issue Nos. 16-18)

The California Family Rights Act (“CFRA”) provides that it shall be an unlawful employment practice for any employer to refuse to hire, or to discharge, fine, suspend, expel, or discriminate against any individual because of the individual’s exercise of the right to family care and medical leave as provided by CFRA. (Gov. Code § 12945.2, subd. (k)(1).) “A plaintiff can establish a prima facie case of retaliation in violation of the CFRA by showing the following: (1) the defendant was a covered employer; (2) the plaintiff was eligible for CFRA leave; (3) the plaintiff exercised his or her right to take a qualifying leave; and (4) the plaintiff suffered an adverse employment action because he or she exercised the right to take CFRA leave.” (Rogers v. County of Los Angeles (2011) 198 Cal.App.4th 480, 491 [emphasis in original].)

The court finds that Defendant has met its burden of showing that the sixth cause of action for retaliation in violation of the CFRA has no merit because Defendant has shown that an element of the cause of action (that Plaintiff was terminated because he exercised the right to take CFRA leave) cannot be established. As set forth above, Defendant has introduced evidence that Plaintiff’s termination was based on legitimate business reasons (e.g., the conclusion of the project to which Plaintiff was assigned) and not because of Plaintiff’s exercise of his right to take medical leave.

The court finds that Plaintiff has not met his burden to show that a triable issue of material fact exists as to the element of causation. As set forth above, the evidence submitted by Plaintiff in relation to his taking protected medical leave consists solely of temporal proximity between his leave and termination. Evidence of temporal proximity, alone, is insufficient to show that a triable issue of material fact exists as whether Defendant’s proffered reason for Plaintiff’s termination was pretextual. (Loggins, supra, 151 Cal.App.4th at p. 1112.)

The court therefore grants Defendant’s motion for summary adjudication as to the sixth cause of action for retaliation in violation of the California Family Rights Act.

8. Seventh Cause of Action for Declaratory Judgment (Issue Nos. 19-20)

Any person interested under a written instrument or under a contract, or who desires a declaration of his rights or duties with respect to another, may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action for a declaration of rights and duties, and the court may make a binding declaration of these rights or duties. (Code Civ. Proc., § 1060.) “‘The fundamental basis of declaratory relief is the existence of an actual, present controversy over a proper subject.’” (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 79.) Thus, there are two elements required to establish a right to declaratory relief: (1) a proper subject of declaratory relief, and (2) an actual controversy involving justiciable questions relating to the party’s rights or obligations. (Jolley, supra, 213 Cal.App.4th at p. 909.)

In his seventh cause of action, Plaintiff seeks a declaration that Defendant discriminated against Plaintiff and terminated Plaintiff based on his protected characteristics and exercise of protected leave. (Compl., ¶¶ 98-99.) Defendant moves for summary adjudication on the ground that this cause of action is (1) duplicative and (2) derivative of his preceding FEHA causes of action.

The court finds that Defendant has met its burden of showing that the seventh cause of action for declaratory relief has no merit because Defendant has shown that the cause of action is (1) duplicative of Plaintiff’s previous causes of action under FEHA and (2) derivative of the FEHA causes of action, to which the court has granted summary adjudication. (California Insurance Guarantee Assoc. v. Superior Court (1991) 231 Cal.App.3d 1617, 1624.)

The court finds that Plaintiff has not met his burden to show a triable issue of material fact exists as to the validity of his derivative causes of action for discrimination and retaliation for the reasons set forth above.

The court therefore grants Defendant’s motion for summary adjudication as to the seventh cause of action for declaratory relief.

9. Eighth Cause of Action for Wrongful Termination in Violation of Public Policy (Issue Nos. 21-27)

“The elements of a claim for wrongful discharge in violation of public policy are (1) an employer-employee relationship, (2) the employer terminated the plaintiff’s employment, (3) the termination was substantially motivated by a violation of public policy, and (4) the discharge caused the plaintiff harm.” (Yau v. Allen (2014) 229 Cal.App.4th 144, 154.) The California Supreme Court has “described ‘four categories of employee conduct subject to protection under a claim of wrongful discharge in violation of fundamental public policy: “(1) refusing to violate a statute [citations]; (2) performing a statutory obligation [citation]; (3) exercising a statutory right or privilege [citation]; and (4) reporting an allegation violation of a statute of public importance [citation].”’” (Casella v. SouthWest Dealer Services, Inc. (2007) 157 Cal.App.4th 1127, 1139.)

The court finds that Defendant has met its burden of showing that the eighth cause of action for wrongful termination in violation of public policy has no merit because Defendant has shown that an element of the cause of action (that the termination was substantially motivated by a violation of public policy) cannot be established since the court has granted summary adjudication as to Plaintiff’s underlying, derivative causes of action. (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 229; Compl., ¶¶ 105-109.)

The court finds that Plaintiff has not met his burden to show that a triable issue of material fact exists as to whether his termination was substantially motivated by a violation of public policy since Plaintiff failed to show that triable issues of material fact exist as to the underlying discrimination and retaliation causes of action for the reasons discussed above.

The court therefore grants Defendant’s motion for summary adjudication as to the eighth cause of action for wrongful termination in violation of public policy.

10. Ninth Cause of Action for Retaliation (Issue Nos. 28-31)

“A person shall not discharge an employee or in any manner discriminate, retaliate, or take any adverse action against employee . . . because the employee or applicant for employment has filed a bona fide complaint or claim or instituted or caused to be instituted any proceeding under or relating to his or her rights that are under the jurisdiction of the Labor Commissioner, made a written or oral complaint that he or she is owed unpaid wages, or because the employee has initiated any action or notice pursuant to section 2699. . . .” (Lab. Code § 98.6, subd. (a).)

The court finds that Defendant has not met its burden of showing that the ninth cause of action for retaliation in violation of Labor Code section 98.6 has no merit and is barred because Defendant has not shown that Plaintiff was required to exhaust administrative remedies before bringing this cause of action. (Reply, 8:4-5 [“Defendant concedes that there is no longer a requirement to exhaust administrative remedies under” section 98.6]; Lab. Code § 98.7, subd. (g) [“In the enforcement of this section, there is no requirement that an individual exhaust administrative remedies or procedures”].)

The court therefore denies Defendant’s motion for summary adjudication as to the ninth cause of action for retaliation under Labor Code section 98.6 on the ground that Plaintiff is barred from bringing this cause of action for failure to exhaust administrative remedies.

The court finds that Defendant has not met its burden of showing that the ninth cause of action for retaliation in violation of Labor Code section 98.6 has no merit because Defendant has not shown that Plaintiff did not suffer an adverse employment action because, as set forth above, Plaintiff was terminated. (UMF 44.)

The court finds that Defendant has met its burden of showing that the ninth cause of action for retaliation in violation of Labor Code section 98.6 has no merit because Defendant has shown that an element of the cause of action (that Plaintiff has engaged in activity protected under this statute) cannot be established. Defendant introduces evidence that Plaintiff did not make any complaints to another government agency and therefore has established that Plaintiff did not file a complaint or institute any proceeding under the jurisdiction of the Labor Commissioner. (Lab. Code § 98.6, subd. (a).)

The court finds that Plaintiff has met his burden to show that a triable issue of material fact exists as to the element of Plaintiff’s protected activity. Plaintiff testified that he did not get paid for loading time while working with Defendant, and complained to Andy about the failure to pay wages for those hours worked. (Pl. COE Ex. 1, Ulloa Dep., 153:4-23.) Plaintiff’s testimony shows that a triable issue of material fact exists as to whether Plaintiff engaged in the type of activity protected by Labor Code section 98.6 by making “a written or oral complaint that he…[was] owed unpaid wages.” (Lab. Code § 98.6, subd. (a).)

The court finds that Defendant has met its burden of showing that the ninth cause of action for retaliation in violation of Labor Code section 98.6 has no merit because Defendant has shown that an element of the cause of action (causation, i.e., that Plaintiff was discharged because of his protected complaints) cannot be established. As set forth above, Defendant has introduced evidence that Plaintiff’s termination was based on legitimate business reasons (e.g., the conclusion of the project to which Plaintiff was assigned) and not because of Plaintiff’s complaints under this statute.

The court finds that Plaintiff has not met his burden to show that a triable issue of material fact exists as to the element of causation. The only argument advanced by Plaintiff specifically relating to the making of the wage and hour complaints is that Plaintiff made the protected complaints, of which Defendant was aware, and Plaintiff was terminated a short time later. (Opp., 17:6-14.) Specifically, Plaintiff argues that he was terminated “less than a week” after making his complaints. (Opp., 17:14.) However, Plaintiff has not cited any evidence in support of this timeline, and the court’s review of the cited pages of Plaintiff’s deposition does not appear to reveal the dates on which Plaintiff made the subject complaints. Even if the court were to consider this timeline, the temporal proximity between the complaints and the termination, alone, does not constitute substantial responsive evidence to show that a triable issue of material fact exists as to causation. (See Sangster, supra, 68 Cal.App.4th at pp. 162-163.) Further, the court finds relevant that Plaintiff, in his declaration, attributes the reason for his termination and reduction of hours to be due to his “age, [his] heart attack incident, [his] ongoing heart condition and disability, [his] need to work slower, and [his] medical leave” and not because of the complaints made about the failure to remit wages owed. (Ulloa Decl., ¶¶ 12-13.)

The court therefore grants Defendant’s motion for summary adjudication as to the ninth cause of action for retaliation in violation of Labor Code section 98.6.

11. Tenth Cause of Action for Retaliation (Issue Nos. 32-35)

To establish a retaliation claim under Labor Code section 1102.5, subdivision (b), “a plaintiff must show (1) she engaged in protected activity, (2) her employer subjected her to an adverse employment action, and (3) there is a causal link between the two.” (Patten v. Grant Joint Union High School Dist. (2005) 134 Cal.App.4th 1378, 1384.)

The court finds that Defendant has not met its burden of showing that the tenth cause of action for retaliation in violation of Labor Code sections 1102.5 and 1102.6 has no merit and is barred because Defendant has not shown that Plaintiff was required to exhaust administrative remedies before bringing this cause of action. (Reply, 8:4-5 [“Defendant concedes that there is no longer a requirement to exhaust administrative remedies under” section 1102.5].)

The court therefore denies Defendant’s motion for summary adjudication as to tenth cause of action for retaliation in violation of Labor Code sections 1102.5 and 1102.6 on the ground that Plaintiff is barred from bringing this cause of action for failure to exhaust administrative remedies.

The court finds that Defendant has not met its burden of showing that the tenth cause of action for retaliation in violation of Labor Code sections 1102.5 and 1102.6 has no merit because Defendant has not shown that Plaintiff did not suffer an adverse employment action because, as set forth above, Plaintiff was terminated. (UMF 44.)

The court finds that Defendant has met its burden of showing that the tenth cause of action for retaliation in violation of Labor Code sections 1102.5 and 1102.6 has no merit because Defendant has shown that an element of the cause of action (a causal link between Plaintiff’s activity and termination) cannot be established. As set forth above, Defendant has introduced evidence that Plaintiff’s termination was based on legitimate business reasons (e.g., the conclusion of the project to which Plaintiff was assigned) and not because of Plaintiff’s complaints under this statute.

The court finds that Plaintiff has not met his burden to show that a triable issue of material fact exists as to the element of a causal link between Plaintiff’s complaints and his termination. As with the ninth cause of action, Plaintiff relies solely on the alleged temporal proximity between his complaints and his termination. The court again finds that the temporal proximity between any complaints and the termination, alone, does not constitute substantial responsive evidence sufficient to show that a triable issue of material fact exists as to the element of causation. (See Sangster, supra, 68 Cal.App.4th at pp. 162-163.) Further, the court again notes that Plaintiff’s declaration attributes the reason for his termination and reduction of hours to be due to his “age, [his] heart attack incident, [his] ongoing heart condition and disability, [his] need to work slower, and [his] medical leave” and not because of any complaints under the Labor Code. (Ulloa Decl., ¶¶ 12-13.)

The court therefore grants Defendant’s motion for summary adjudication as to the tenth cause of action for retaliation in violation of Labor Code sections 1102.5 and 1102.6.

12. Twelfth Cause of Action for Failure to Pay Overtime Compensation (Issue Nos. 38-39)

Any work in excess of eight hours in one workday and any work in excess of 40 hours in any one workweek shall be compensated at the rate of no less than one and one-half times the regular rate of pay for an employee. (Lab. Code § 510, subd. (a).) Any employer who violates this provision is subject to a civil penalty as follows. (Lab. Code § 558, subd. (a).) First, for any initial violation, a $50 penalty will be imposed for each underpaid employee for each pay period for which the employee was underpaid. (Lab. Code § 558, subd. (a)(1).) Second, for each subsequent violation, a $100 penalty will be imposed for each underpaid employee for each pay period for which the employee was underpaid in addition to an amount sufficient to recover underpaid wages. (Lab. Code § 558, subd. (a)(2).)

The court finds that Defendant has met its burden of showing that the twelfth cause of action for failure to pay overtime compensation has no merit because Defendant has shown that an element of the cause of action (the failure to pay overtime wages) cannot be established. Plaintiff testified that he reviewed his time sheets against the notes he took on the number of hours worked each day, which he kept in his car. (UMF No. 48; Def. COE Ex. B, Ulloa Dep., 93:22-94:4.) Upon review, Plaintiff would report any errors on his timesheets. (Def. COE Ex. B, Ulloa Dep., 94:14-19.) Plaintiff testified that he did receive overtime pay if overtime hours were worked because he “made sure that [he] had it on [his] check.” (Def. COE Ex. B, Ulloa Dep., 113:25-114:11.)

The court finds that Plaintiff has not met his burden to show that a triable issue of material fact exists as to the element of Defendant’s failure to pay overtime wages. Plaintiff argues that he was not paid for meal or rest periods, and that Plaintiff was not compensated for loading time. (Pl. COE Ex. 1, Ulloa Dep., 153:7-13.) Although this may establish that Plaintiff had not been paid wages due, Plaintiff did not present evidence that on the dates on which Plaintiff would be entitled to overtime compensation based on the failure to pay those wages.

The court therefore grants Defendant’s motion for summary adjudication as to the twelfth cause of action for failure to pay overtime wages.

13. Thirteenth Cause of Action for Failure to Provide Meal and Rest Breaks (Issue Nos. 42-44)

“State law obligates employers to afford their nonexempt employees meal periods and rest periods during the workday.” (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1018 (“Brinker”.) Employers may not require an employee to work during a meal or rest or recovery period mandated pursuant to an applicable statute, regulation, or standard. (Lab. Code § 226.7, subd. (b).) “An employer shall not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than 30 minutes, except that if the total work period per day of the employee is no more than six hours, the meal period may be waived by mutual consent of both the employer and employee.” (Lab. Code § 512, subd. (a).) “The employer satisfies this obligation if it relieves its employees of all duty, relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted 30-minute break, and does not impede or discourage them from doing so.” (Brinker, supra, 53 Cal.4th at p. 1040.) An employer “is not obligated to police meal breaks”—a “[b]ona fide relief from duty and the relinquishing of control satisfies the employer’s obligations….” (Id. at pp. 1040-1041.)

The court finds that Defendant has met its burden of showing that the thirteenth cause of action for failure to provide meal and rest breaks has no merit because Defendant has (1) shown that section 512 does not apply to Plaintiff and (2) shown that Defendant did not require Plaintiff to work during a rest or recovery period.

First, the court finds that Defendant has produced sufficient evidence demonstrating that section 512 is inapplicable to Plaintiff. Section 512, subdivision (a) does not apply to an employee employed in a construction occupation if (1) the employee is covered by a valid collective bargaining agreement and (2) the agreement “expressly provides for the wages, hours of work, and working conditions of employees, and expressly provides for meal periods for those employees, final and binding arbitration of disputes concerning application of its meal period provisions, premium wage rates for all overtime hours worked, and a regular hourly rate of pay of not less than 30 percent more than the state minimum wage rate.” (Lab. Code §§ 512, subd. (f)(1), subd. (e).) This constitutes “an exception to the ordinary rule that an employer must provide meal periods of a specified time after a specified amount or work; that is, it provides that where a collective bargaining agreement meets certain requirements,” section 512, subdivision (a) does not apply. (Araquistain v. Pacific Gas & Electric Co. (2014) 229 Cal.App.4th 227, 236.) Similarly, Industrial Welfare Commission Order number 16-2001 states its requirements do not apply to any employee covered by a collective bargaining agreement if the agreement expressly provides for the wages, hours of work, and working conditions of the employee, and if the agreement provides premium wage rates not less than 30 percent more than the state minimum wage. (IWC Order, §§ 10, subd. (a), (e).)

Defendant produces evidence that (1) Plaintiff is a field employee involved in Defendant’s construction operation and therefore is an individual employed in a construction operation; (2) a valid collective bargaining agreement covers Plaintiff’s employment; (3) the agreement expressly provides for the meal periods of its employees, since it states that employees are to have a thirty-minute lunch period between 9:30 a.m. and 1:30 p.m, “to be decided by conditions of the job;” and (4) Plaintiff’s starting wage amounted to $40.80 per hour and later was raised $45.25 at the end of his employment, which is not less than 30 percent more than California’s minimum wage, which was $10 per hour in 2016 and was raised to $12 per hour for the year of 2019. (Smith Decl., ¶¶ 4, 7; Def. COE Ex. G, Intelligent Transportation Systems Agreement, § 3.01; Araquistain, supra, 229 Cal.App.4th at p. 237 [finding that an agreement providing that employees are permitted to eat their meals during work hours “expressly provide[d] for meal periods for those employees”]; UMF No. 58; Lab. Code § 1181.12 [setting forth California minimum wage rates].) For the reasons set forth above, Defendant has introduced evidence demonstrating that section 512 “do[es] not apply” to Plaintiff as to his failure to provide meal periods claims.

Second, Defendant has presented evidence that Plaintiff did take rest periods, albeit for only five minutes at a time. (Def. COE Ex. B, Ulloa Dep., 106:11-17.) However, Plaintiff could not identify an employee who prevented Plaintiff from taking a lunch or rest break, stating instead that it was “the way the company ran.” (Def. COE Ex. B, Ulloa Dep., 71:11-13.) Plaintiff then clarified that “it was just the way the job was running” and that some employees would take a lunch, and others would not. (Def. COE Ex. B, Ulloa Dep., 72:6-12.) Specifically, Plaintiff testified that it was the truck drivers who would “give” a lunch break; however, those truck drivers were not employees of Defendant, but rather, were employed by a separate company. (Def. COE Ex. B, Ulloa Dep., 71:16-19, 72:16-20.) Defendant has therefore presented evidence that (1) Plaintiff did take rest breaks, and (2) when Plaintiff did not take meal or rest breaks or did not take the full amount of time for a rest break, it was not at the direction of Defendant, but rather, at the direction of a truck driver employed by a different subcontractor.

The court finds that Plaintiff has not met his burden to show that a triable issue of material fact exists as to the applicability of sections 512 and 226.7 to Plaintiff. First, as to his meal period claims, Plaintiff has not established a triable issue of fact as to the applicability of section 512 to his claims as a unionized worker earning not less than 30 percent more than California’s minimum wage and covered by a collective bargaining agreement which provided for meal periods. Plaintiff has not submitted any evidence refuting the exception set forth in section 512, subdivision (e). The court notes that Plaintiff has asserted, in the Separate Statement, that he disputes Defendant’s material fact asserting that Plaintiff’s employment was controlled by the collective bargaining agreement. However, Plaintiff’s response concedes that the terms of his employment were controlled, at least in part, by the collective bargaining agreement. (Pl. Response to Def. Material Fact No. 7.) The court also recognizes that Plaintiff testified that Defendant’s “motto” was “work through lunch” which created an impression that Plaintiff could not take a meal break. (Pl. COE Ex. 1, Ulloa Dep., 98:16-99:6.) However, Plaintiff’s claims have been brought under section 512 of the Labor Code and do not apply to Plaintiff. Thus, this statute does not provide a remedy for Plaintiff as to Defendant’s alleged failure to provide meal breaks.

Second, as to the rest period claims, the cited testimony by Plaintiff (1) concerns the alleged failure to take meal breaks, which is insufficient for the reasons outlined above; (2) establishes, as above, that Plaintiff did, at times, take some rest breaks; and (3) does not establish that there was the same “motto” or impression created by Defendant that would bar or discourage Plaintiff from taking rest breaks. (Pl. Material Fact No. 37.) The court therefore finds that Plaintiff has not shown that a triable issue of material fact exists as to (1) the applicability of section 512 as it relates to his meal period claims and (2) Defendant’s failure to provide to Plaintiff rest periods.

The court therefore grants Defendant’s motion for summary adjudication as to Plaintiff’s thirteenth cause of action for failure to provide meal and rest periods.

14. Eleventh Cause of Action for Failure to Pay Wages (Issue Nos. 36-37)

“If an employer discharges an employee, the wages earned and unpaid at the time of discharge are due and payable immediately.” (Lab. Code § 201, subd. (a).) Any employee receiving less than the legal minimum wage or legal overtime compensation is entitled to recover in a civil action the unpaid balance of the full amount of this minimum wage or overtime compensation, including interest thereon. (Lab. Code § 1194, subd. (a).)

The court finds that Defendant has met its burden of showing that the eleventh cause of action for failure to pay wages has no merit because Defendant has established that (1) Plaintiff’s derivative cause of action for failure to pay overtime compensation has no merit and (2) Plaintiff’s derivative cause of action for failure to pay meal and rest periods has no merit for the reasons set forth above. Plaintiff’s Complaint alleges as follows: “At all relevant times, Defendants failed and refused to pay Plaintiff wages earned and required by 8 Code of Regulations §11160, as set forth hereinabove. As alleged herein, Plaintiff was not paid overtime premium compensation and an additional hour compensation at the requisite wage rate for each day on which he was not provided a statutory meal/rest period.” (Compl., ¶ 133 [emphasis added].) Plaintiff’s Complaint, therefore, establishes that this cause of action is based on his causes of action for failure to pay overtime wages and compensation for missed meal and rest breaks. Although Plaintiff refers to “wages earned and required by 8 Code of Regulations § 11160,” Plaintiff does not describe or allege in the Complaint, or explain in his opposition, which wages he is referring to as “wages earned” pursuant to this regulation. Accordingly, because the court has granted summary adjudication as to the causes of action to pay overtime wages and compensation for missed meal and rest breaks, the court finds that Defendant has established that the eleventh cause of action for failure to pay wages has no merit because the causes of action on which this is based have been summarily adjudicated.

The court finds that Plaintiff has not met his burden to show that a triable issue of material fact exists as to the failure to pay wages due. In addition to the arguments made in connection with the derivative causes of action, Plaintiff has introduced as evidence his testimony, wherein he states that he did not get paid for loading time while working with Defendant. (Pl. COE Ex. 1, Ulloa Dep., 153:4-23.) Although the court recognizes that Plaintiff has submitted this evidence, Plaintiff did not explain how the failure to pay for this loading time constitutes a failure to pay for overtime wages. Instead, this evidence appears to demonstrate that Plaintiff was not paid wages due at his regular hourly rate for time spent driving. However, Plaintiff’s cause of action is pleaded as relying purely on the allegations that Plaintiff was not paid overtime wages earned and additional compensation at the requisite wage rate for each day that he was not provided a statutory meal or rest period. Plaintiff’s Complaint does not, as pleaded, request relief for failure to pay regular wages for loading time as described in his testimony. Thus, this evidence is insufficient to establish a triable issue of fact.

The court therefore grants Defendant’s motion for summary adjudication as to the eleventh cause of action for failure to pay wages due.

15. Fourteenth Cause of Action for Failure to Furnish Wage and Hour Statements (Issue Nos. 40-41)

Employers must furnish to their employees an accurate itemized statement in writing showing (1) gross wages earned, (2) total hours worked by the employee, (3) the number of piece-rate units earned, (4) all deductions, (5) net wages earned, (6) the inclusive dates of the period for which the employee is paid, (7) the name of the employee and only the last four digits of the employee’s social security or employee identification number, (8) the name and address of the legal entity that is the employer, and (9) all applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate by the employee. (Lab. Code § 226, subd. (a).)

The court finds that Defendant has met its burden of showing that the fourteenth cause of action for failure to furnish wage and hour statements has no merit because Defendant has shown that the inaccuracy of Plaintiff’s wage statements cannot be established since the court has granted summary adjudication of Plaintiff’s predicate wage and hour causes of action.

The court finds that Plaintiff has failed to meet his burden to show that a triable issue of material fact exists as to the derivative twelfth and thirteenth causes of action for failure to pay overtime wages and failure to provide meal and rest periods, as described above, since Plaintiff failed to establish that Plaintiff was denied overtime compensation and compensation for wage and hour compensation for missed meal and rest breaks. Accordingly, the court finds that Plaintiff has failed to meet his burden to show that a triable issue of material fact exists as to the accuracy of the wage statements.

The court therefore grants Defendant’s motion for summary adjudication as to the fourteenth cause of action for failure to furnish accurate, itemized wage statements.

16. Fifteenth Cause of Action for Unfair Competition (Issue Nos. 45-46)

California’s unfair competition law prohibits “any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue, or misleading advertising….” (Bus. & Prof. Code, § 17200.) “Therefore, under the statute there are three varieties of unfair competition: practices which are unlawful, unfair or fraudulent.” (Pfizer Inc. v. Superior Court (2010) 182 Cal.App.4th 622, 629.) ‘“By proscribing ‘any unlawful’ business act or practice [citation], the UCL ‘borrows’ rules set out in other laws and makes violations of those rules independently actionable. [Citation.] A ‘violation of another law is a predicate for stating a cause of action under the UCL’s unlawful prong.’” (Graham v. Bank of America, N.A. (2014) 226 Cal.App.4th 594, 610.)

The court finds that Defendant has met its burden of showing that the fifteenth cause of action for violation of California’s unfair competition law has no merit because Defendant has shown that the derivative causes of action on which this cause of action is based have no merit. Plaintiff bases this cause of action on the failure of Defendant to pay Plaintiff overtime wages earned and additional compensation for days on which he was not provided statutory meal and rest breaks. (Compl., ¶ 163.) The court has granted summary adjudication as to those predicate causes of action, as set forth above, finding that Plaintiff has not shown that a triable issue of material fact exists as to his entitlement to receive unpaid overtime wages or additional compensation for the days that Plaintiff was unable to take a meal or rest break.

The court finds that Plaintiff has not met his burden to show that a triable issue of material fact exists as to the twelfth and thirteenth causes of action for failure to pay overtime wages and failure to provide meal and rest periods, as described above, since Plaintiff failed to establish that Plaintiff was denied overtime compensation and compensation for wage and hour compensation for missed meal and rest breaks. Accordingly, the court finds that Plaintiff has failed to meet his burden to show that a triable issue of material fact exists as to the underlying violations of law as expressed in the twelfth and thirteenth causes of action.

The court therefore grants Defendant’s motion for summary adjudication as to the fifteenth cause of action for violation of California’s unfair competition law.

17. Sixteenth Cause of Action for Waiting Time Penalties (Issue Nos. 47-48)

If an employer willfully fails to pay any wages of an employee who is discharged, the wages of the employee shall continue as a penalty from the due date thereof at the same rate until paid or until an action therefor is commenced. (Lab. Code § 203, subd. (a).)

The court finds that Defendant has met its burden of showing that the sixteenth cause of action for waiting time penalties has no merit because Defendant has shown that the derivative causes of action on which this cause of action is based have no merit. Specifically, Plaintiff requests payment of his entitled overtime wages and meal and rest periods in connection with this cause of action, and the court has granted summary adjudication as to the twelfth and thirteenth causes of action for failure to pay overtime wages and compensation for missed meal and rest periods, respectively. (Compl., ¶ 169.)

The court finds that Plaintiff has met his burden to show a triable issue of material fact exists as to Defendant’s failure to remit unpaid wages. As described above, Plaintiff introduces deposition testimony to establish that he did not get paid for loading time while working with Defendant. (Pl. COE Ex. 1, Ulloa Dep., 153:4-23.) The court finds, for the reasons set forth in connection with the other wage and hours causes of actions, that this evidence is insufficient to establish Defendant’s failure to remit overtime wages and compensation for missed meal and rest breaks. However, unlike Plaintiff’s preceding wage and hour causes of action, the sixteenth cause of action is also supported by an allegation that Defendant failed to pay “unpaid wages,” and has not solely based this cause of action on Defendant’s failure to unpaid overtime and compensation for missed breaks. Accordingly, this evidence is sufficient to show that a triable issue of material fact exists as to Defendant’s failure to pay wages owed to Plaintiff for loading time.

The court therefore denies Defendant’s motion for summary adjudication as to the sixteenth cause of action for waiting time penalties.

18. Plaintiff’s Claim for Punitive Damages (Issue Nos. 49-51)

Defendant moves the court for an order granting summary adjudication as to Plaintiff’s claim for punitive damages. Plaintiff has requested punitive damages in connection with his first through sixth, eighth, ninth, and tenth causes of action. (Compl., ¶¶ 44, 56, 62, 70, 78, 81, 114, 121, 130.)

The court has granted Defendant’s motion for summary adjudication as to those causes of action. The court finds that Defendant has met its burden of showing that Plaintiff’s claim for punitive damages has no merit because Plaintiff cannot establish that Defendant has been guilty of oppression, fraud, or malice as required by Civil Code section 3294. The court therefore finds (1) Defendant has met its burden to show that it has not been guilty of fraud, malice, or oppression, and (2) Plaintiff has not met his burden to show that a triable issue of material fact exists as to his claim for punitive damages.

The court therefore grants Plaintiff’s motion for summary adjudication as to Plaintiff’s claim for punitive damages.

ORDER

The court denies defendant SASCO’s motion for summary judgment.

The court grants defendant SASCO’s motion for summary adjudication as to Plaintiff’s first through fifteenth causes of action and Plaintiff’s claim for punitive damages.

The court denies defendant SASCO’s motion for summary adjudication as to Plaintiff’s sixteenth cause of action.

The court orders defendant SASCO to give notice of this ruling.

IT IS SO ORDERED.

DATED: July 28, 2022

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court