1)??? Motion for Summary Judgment and/or Adjudication
2)?? Status Conference
Defendant 24 Hour Fitness USA, Inc.?s motion for summary judgment or, alternatively, for summary adjudication of issues, is DENIED.
Preliminary Issues
First, Defendant?s 05/09/16 unopposed request for judicial notice is GRANTED.? Second, the Court declines to rule on Defendant?s 07/20/16 objections. ?[T]he court need rule only on those objections to evidence that it deems material to its disposition of the motion.? (CCP ? 437c(q).) Here, none of the objections are directed to evidence pertaining to the wage statement claim which is the basis of the court?s ruling. Third, the Court did not consider Defendant?s 07/20/16 ?Separate Statement Reconciling Evidence Proffered in Support of, and in Opposition to, Defendants? Motion for Summary Judgment.? There is no provision in CCP ??437c or California Rule of Court (CRC) 3.1350 for a reply or responsive separate statement.?(Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252.)?Moreover, this 51-page statement consists largely of arguments that are properly contained in a Reply.
Summary Adjudication
Although Defendant seeks summary adjudication as an alternative request, the Court considers this motion one for summary judgment only.
First, the motion fails to comply with CRC 3.1350. The issues contained in the notice of motion are not repeated verbatim in the separate statement of undisputed material facts. Indeed, Defendant?s Notice of Motion lists 5 issues, but its Separate Statement identifies only 3 issues. Accordingly, the Court exercises its discretion to deny the motion for this reason.? (Truong v. Glasser (2009) 181 Cal.App.4th 102, 118; Schmidlin v. City of Palo Alto?(2007) 157 Cal.App.4th?728, 744.)
Second, even if Defendant had set forth the issues verbatim in the Separate Statement, none of the issues identified by Defendant completely disposes of a cause of action, affirmative defense, or an issue of duty, as required by CCP ? 437c(f)(1). In this case, all of the alleged Labor Code violations supporting the request for PAGA penalties are contained in a single cause of action.? ?PAGA requires that the representative plaintiff establish that the employer have committed the Labor Code violations for which recovery is sought against the aggrieved employees. At least one violation must have been committed against the representative plaintiff. (Lab. Code, ? 2699, subds.(a) & (c); see alsoArias v. Superior Court, supra, 46 Cal.4th at p. 987, 95 Cal.Rptr.3d 588, 209 P.3d 923.)? (Rope v. Auto-Chlor System of Washington, Inc. (2013) 220 Cal.App.4th 635, 651, fn. 7, superseded by statute on other grounds due to Legislative Action Stats. 2015, c. 122 (A.B.987), ? 2.) In other words, if one violation has been committed against Plaintiff, she has standing to bring a PAGA action to recover for all alleged violations.
Summary Judgment
In light of the foregoing, Defendant ?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? (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850); i.e. that, as to each cause of action, one or more elements of the cause of action cannot be established or there is a complete defense (CCP ??437c(a)(1)). ??The defendant must demonstrate that under no hypothesis is there a material factual issue requiring trial.? [Citation.]? If the defendant does not meet this burden, the motion must be denied.?? (Eriksson v. Nunnink (2011) 191 Cal.App.4th 826, 850.)
In this case, the First Amended Complaint (?FAC?) includes an allegation that Defendant failed to issue accurate itemized wage statements pursuant to Labor Code ??226. (FAC ? 7, 9, 22, 35, 38.) The FAC refers to a supplemental letter Plaintiff sent to the LWDA with respect to the overtime wage violations. (FAC ? 37, Exh.?3.) One complaint was that Plaintiff?s paystub shows that Defendant ?calculated her overtime pay at ?overtime premium .5? even though she is clearly an hourly employee entitled to a 1.5 multiplier.? (FAC Exh.?3.)
In its Motion, Defendant argues that there is no merit to any argument by Plaintiff that her wage statement was inaccurate because it itemized the ?Overtime Premium? as 0.5 instead of 1.5. For the reasons discussed below, the Court finds that there is at triable issue of material fact as to whether the wage statements issued by Defendant to Plaintiff violated LC ? 226.
?The proper interpretation of a statute, and its application to undisputed facts, presents a question of law.? (Morgan v. United Retail Inc. (2010) 186 Cal.App.4th 1136, 1142.) LC ? 226(a) requires employers to provide ?accurate itemized statements in writing showing . . . (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.?
?An employee suffering injury as a result of a knowing and intentional failure by an employer to comply with subdivision (a) is entitled to recover the greater of? actual damages or a set amount for each violation, which is capped at $4,000, in addition to reasonable attorney fees and costs. (LC ? 226(e).) ?An employee is deemed to suffer injury for purposes of this subdivision if the employer fails to provide accurate and complete information as required by any one or more of items (1) to (9), inclusive, of subdivision (a) and the employee cannot promptly and easily determine from the wage statement alone . . . any information required to be provided on the itemized wage statement pursuant to items (2) to (4), inclusive, (6), and (9) of subdivision (a).? (LC ? 226(e)(2)(B).) The phrase ??promptly and easily determine? means a reasonable person would be able to readily ascertain the information without reference to other documents or information.? (LC ? 226(e)(2)(C).)
?In 2000, the Legislature [ ] amended the statute to add the ninth requirement concerning ?all applicable hourly rates in effect? and the ?corresponding number of hours worked at each hourly rate.? (Stats.2000, ch. 876, ? 6.) The 2000 amendment thus expanded the scope of information to be included by employers in the itemized wage statements furnished to employees. Following the amendment, an employer that previously listed the total hours worked by an employee in a single category was now required to list both the total regular hours worked and the total overtime hours worked, along with the corresponding hourly rates. It appears that by adding this more specific requirement, the statute made it easier for employees to determine whether they were being paid for all hours worked at the appropriate rates of pay.? (Morgan v. United Retail Inc. (2010) 186 Cal.App.4th 1136, 1148.)
Strictly speaking, the wage statements issued by Defendant to Plaintiff in this case do not accurately show ?all applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate by the employee.? (LC ? 226(a)(9).) As noted by Plaintiff, the wage statements list a category of ?Regular Pay? and a category of ?Overtime Premium .5?, instead of an overtime hourly rate that represents 1.5 of the employee?s regular rate of pay. (Healon Decl. Exh. A.)
Defendant relies heavily on Hernandez v. BCI Coca-Cola Bottling Co., No. CV 11-9484 SVW SSX, 2012 WL 12272348, at *3-4 (C.D. Cal. Apr. 12, 2012) aff?d, 554 F. App?x 661 (9th Cir. 2014), for the proposition that a wage statement may properly break the overtime calculation into two component parts: the regular rate and the 50% premium for overtime. The wage statements in this case, however, are not identical to those inHernandez. The wage statements in Hernandez listed a regular rate (?Hourly Pay?), an overtime base rate (?OT Base 100%?), and an overtime premium rate (OT Prero 50%). Based on these separately identified rates, the Hernandez court concluded that an employee could easily add the overtime base rate and the overtime premium rate to calculate the applicable overtime hourly rate.
In this case, the organization of the wage statement is more confusing than the Hernandez wage statement. As noted by Plaintiff, Defendant listed a category of ?Regular Pay? which it now claims included overtime pay, and also listed an ?Overtime Premium .5? rate. It is not readily apparent to a reasonable person that one need only add the regular pay rate and the overtime premium rate to calculate the applicable overtime hourly rate.
Defendant argues that the ?wage statements make transparent the fact that Defendant calculated Plaintiff?s effective overtime rate by multiplying her regular rate by 1.5 times.? (Motion p.?16:10-12.) But even under Defendant?s proposed calculation, the applicable overtime hourly rate is not always accurate. Plaintiff?s 11/22/13 (Healon Decl. Exh. A-DEF-AM 00283) and 10/19/13 wage statements are examples of this. Plaintiff?s 10/19/13 wage statement (Healon Decl. Exh. A ? DEF-AM 00282.) lists ?Regular Pay? rates of $8.00 and $8.50. If Plaintiff were to multiply either of these regular rates by 1.5, it would not equal the applicable overtime hourly rate for this wage statement. Indeed, $4.16 is the stated ?Overtime Premium .5? rate. Under the rationale of Hernandez, Plaintiff should be able to add the regular rate and overtime rate to calculate the applicable overtime hourly rate. But if Plaintiff were to add the overtime premium rate of $4.16 to the regular rate of $8.00, the overtime hourly rate would be $12.16. And if Plaintiff were to add the overtime premium rate of $4.16 to $8.50, the overtime hourly rate would be $12.66. In fact, it appears that neither the $12.16 nor the $12.66 figure is the correct overtime hourly rate for that wage statement. Instead, it appears that Defendant was applying an overtime hourly rate of $12.48 ($4.16 x 3). The same is true with respect to the 11/22/13 wage statement.
Based on the foregoing, there is a triable issue of material fact as to whether a reasonable person would be able to readily ascertain the applicable overtime hourly rate in the wage statements without reference to documents or other information, and as a result, whether Defendant?s wage statements were in violation of LC ? 226(a). And as long as Plaintiff is ?aggrieved? as to one violation to support a PAGA claim she may bring a PAGA claim for all alleged violations. (LC ? 2699(a), (c); Rope v. Auto-Chlor System of Washington, Inc., supra, 220 Cal.App.4th at 651, fn. 7.) Consequently, the Court need not reach the merits of Plaintiff?s allegations of rest period and overtime payment violations.