Case Name: ?? Herbert Hopkins v. J.W. McClenahan Co., et al.
Case No.: ?????? 16-CV-300512
This is a putative employment class action regarding alleged defects in the wage statements issued by defendant J.W. McClenahan Co., which provides plumbing and other contracting services.? The complaint sets forth a single cause of action for violation of Labor Code section 226 by failing to identify the start date of the payroll period on wage statements issued during the class period.
Before the Court are defendant?s motion for summary judgment and plaintiff?s motion to certify the class.? Both motions are opposed.
- ?Motion for Summary Judgment
Defendant moves for summary judgment on the grounds that plaintiff cannot establish injury under Labor Code section 226, subdivision (e); the alleged violation has been cured; and section 226?s statutory penalties are unconstitutional as applied to the violation at issue.
Defendant?s request for judicial notice of (1) legislative history materials associated with section 226 and (2) the operative complaint in this action is GRANTED.? (Evid. Code, ??452, subds. (c) and (d).)
- Legal Standard for Defendant Seeking Summary Judgment
?A defendant seeking summary judgment must show that at least one element of the plaintiff?s cause of action cannot be established, or that there is a complete defense to the cause of action. ?? ?The burden then shifts to the plaintiff to show there is a triable issue of material fact on that issue.? ?(Alex R. Thomas & Co. v. Mutual Service Casualty Ins. Co. (2002) 98 Cal.App.4th 66, 72; see also Code Civ. Proc., ? 437c, subd. (p)(2).)
This standard provides for a shifting burden of production; that is, the burden to make a prima facie showing of evidence sufficient to support the position of the party in question. ?(See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851.) ?The burden of persuasion remains with the moving party and is shaped by the ultimate burden of proof at trial. ?(Ibid.) ??There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.? ?(Ibid.)? The opposing party must produce substantial responsive evidence that would support such a finding: evidence that gives rise to no more than speculation is insufficient.? (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 162-163.)
The traditional method for a defendant to meet its burden on summary judgment is by ?negat[ing] a necessary element of the plaintiff?s case? or establishing a defense with its own evidence. ?(Guz v. Bechtel Nat?l, Inc. (2000) 24 Cal.4th 317, 334.) ?The defendant may also demonstrate that an essential element of plaintiff?s claim cannot be established by ?present[ing] evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence-as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing.? ?(Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 855.)
Summary judgment ?is a drastic remedy eliminating trial and therefore the moving party?s declarations must be strictly construed and the opposing party?s declaration liberally construed.? ?(Hepp v. Lockheed-California Co. (1978) 86 Cal.App.3d 714, 717; see also Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64 [the evidence is viewed in the light most favorable to the opposing plaintiff; the court must ?liberally construe plaintiff?s evidentiary submissions and strictly scrutinize defendant?s own evidence, in order to resolve any evidentiary doubts or ambiguities in plaintiff?s favor?].) ?Summary judgment may not be granted by the court based on inferences reasonably deducible from the papers submitted, if such inferences are contradicted by other inferences which raise a triable issue of fact. ?(Hepp v. Lockheed-California Co., supra, 86 Cal.App.3d at pp. 717-718.)
- Injury Requirement Under Section 226, Subdivision (e)
Labor Code section 226, subdivision (a)(6) requires that wage statements show ?the inclusive dates of the period for which the employee is paid.?? Subdivision (e)(1) establishes statutory penalties available to employees ?suffering injury as a result of a knowing and intentional failure by an employer to comply with subdivision (a).?? Subdivision (e)(2) further provides:
(B) 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 one or more of the following:
(i) The amount of the gross wages or net wages paid to the employee during the pay period or any of the other information required to be provided on the itemized wage statement pursuant to items (2) to (4), inclusive, (6), and (9) of subdivision (a).
[?] ? [?]
(C) For purposes of this paragraph, ?promptly and easily determine? means a reasonable person would be able to readily ascertain the information without reference to other documents or information.
It is undisputed that the wage statements at issue here did not display the start dates for the pay periods they covered.? (Plaintiff?s Resp. to Separate Statement of Undisputed Material Facts (?PSUMF?), no. 51.)? However, the statements did show the pay periods? end dates and the pay frequency, which for plaintiff Hopkins and other field employees was ?Weekly.?[1]? (PSUMF, nos. 7, 10, 45.)? Defendant contends that, given this information, a reasonable person could readily ascertain the pay periods? start dates.? Defendant points to the facts that plaintiff himself understood that the ?Period Ending? date displayed on the wage statements was the last date of the pay period, and that he was paid each week for the hours he worked the prior week; plaintiff could determine the date one week earlier than the ?Period Ending? date without the use of a calendar; and plaintiff was able to verify whether he had been paid for the correct number of hours worked in each pay period during his employment, accurately correcting errors in this respect on two occasions.? (PSUMF, nos. 11-17.)
Plaintiff argues that whether a reasonable person could ascertain the pay period start date is a triable issue of fact.? He points to his deposition testimony that, while he understood that his pay periods were one week long, he did not know that the work week ran from Sunday through Saturday, specifically.? (Evid. ISO Plaintiff?s Mot. Ex. 3(A), Hopkins Depo. Trans., p. 21, ll. 13-22.)? He also submits a declaration stating that the ?Weekly? pay frequency designation on his wage statements ?did not assist in ascertaining the dates for which I was being paid ?. [B]ecause each wage statement contained both a period ending date and a check date, which were always different from one another, I cannot tell which date is the actual date that my wages are being paid from.?? Finally, plaintiff notes that defendant?s own President and person most knowledgeable designee, Ross Kelly, could not always accurately determine a pay period start date based on the ?Period Ending? date without the use of a calendar.? (PSUMF, nos.?62-63.)[2]
While plaintiff attempts to create a factual dispute with his declaration, his deposition testimony was clear that he was able to determine the pay periods covered by his wage statements and verify whether he was being compensated for all of the hours he worked during each pay period,[3] satisfying the purpose of section 226.? (See Soto v. Motel 6 Operating, L.P. (2016) 4 Cal.App.5th 385, 392 [the purpose of Labor Code section 226 is to document paid wages to ensure the employee is fully informed regarding the calculation of those wages, so that employees are not shortchanged by their employers].)? In any event, the issue is not whether plaintiff, defendant?s person most knowledgeable, or any particular individual was immediately able to determine the pay period start date on a given occasion, but whether a reasonable person could readily do so.? This question must be answered in the affirmative.? While plaintiff argues that the ?Weekly? pay frequency designation engenders confusion since the wage statements display different dates for ?Period Ending? and ?Check Date,? it is self-evident that the pay period runs from the ?Period Ending? date.[4]
Plaintiff contends that Lubin v. Wackenhut Corporation (2016) 5 Cal.App.5th 926 compels the conclusion that essentially any defect in a wage statement satisfies the requirement of harm.? But Lubin was decided on class certification and merely held that the harm requirement is subject to common proof, since there is no need to show individual, monetary harm.? (Id. at pp. 958-960.)? Also distinguishable are federal cases where employees had to refer to outside sources to determine the dates of their pay periods,[5] as well as McKenzie v. Federal Exp. Corp. (C.D. Cal. 2011) 765 F.Supp.2d 1222, where the court determined only that subdivision (a) of section 226 had been violated and expressly did not address the issue of harm under subdivision (e) (at p.?1231-1232 [finding the violation was compensable under the Private Attorneys General Act without the need to satisfy subdivision (e)]).
Contrary to plaintiff?s position, it is clear from the statute that harm as defined by subdivision (e) of section 226 is a separate requirement from the violation defined by subdivision (a).? In defining the harm requirement as it did, the Legislature must have contemplated cases like this, where required information was omitted from wage statements in violation of subdivision (a), but there is no harm because the information can be ascertained from the details that were provided.
Since plaintiff fails to raise a triable issue of fact regarding harm, defendant is entitled to summary judgment, and the Court need not address the remaining arguments raised by its motion.
- Conclusion and Order
The motion for summary judgment is GRANTED.
- Motion for Class Certification
Since summary judgment has been awarded against plaintiff Hopkins, the proposed class representative, plaintiff?s motion for class certification is DENIED.
The Court will prepare the order.
[1] Other employees were paid ?Semimonthly,? but this language is not at issue since the class has not been certified and Hopkins is the only plaintiff at present.
[2] Mr. Kelly did accurately determine at least one pay period start date in this fashion during his deposition.? (See Decl. of Larry W. Lee ISO Opp., Ex. A, Kelly Depo. Trans., p. 26, ll. 1-14.)
[3] Plaintiff?s declaration does not explain how he was able to correctly verify his wage statements if he did not know that the pay periods ran from the ?Period Ending? date as opposed to the ?Check Date.?? For this reason, the Court would be justified in disregarding it entirely.? (See Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1524-1525 [?the D’Amico rule permits a trial court to disregard declarations by a party which contradict his or her own discovery responses (absent a reasonable explanation for the discrepancy)?], citing D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, italics original.)
[4] Notably, plaintiff does not allege that there was any defect in his wage statements with regard to the pay periods? end dates.? This new argument is arguably beyond the scope of the complaint and, as a consequence, this motion.? (See FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381 [on summary judgment, the pleadings delimit the scope of issues and frame the outer measure of materiality].)
[5] See Brewer v. General Nutrition Corporation (N.D. Cal., Aug. 27, 2015, No. 11-CV-3587 YGR) 2015 WL 5072039 at *6, 10 (employees had to refer to an ?online system?); Stafford v. Brink?s, Incorporated (C.D. Cal., Aug. 5, 2014, No. CV141352MWFPLAX) 2014 WL 12586066, at *5 (employees had to refer to multiple wage statements); Lopez v. G.A.T. Airline Ground Support, Inc. (S.D. Cal., July 19, 2010, No.?09-CV-2268-IEG) 2010 WL 2839417, at *5-6 (same); Willner v. Manpower Inc. (N.D. Cal. 2014) 35 F.Supp.3d 1116, 1129 (while wage statements listed dates actually worked in addition to pay period end dates, ?the dates on which an employee worked in any given pay period do not necessarily shed light on the date on which the pay period began, particularly in the context of temporary employment?).