Opinion
G059830
12-29-2021
CECILIA DE LA PENA, Petitioner, v. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent; CHILDREN'S HOSPITAL OF ORANGE COUNTY, Real Party in Interest.
The Myers Law Group, David P. Myers, Jason Hatcher, and Morgan Good for Petitioner. No appearance for Respondent. Littler Mendelson, Stacey E. James and Luis E. Lorenzana for Real Party in Interest.
NOT TO BE PUBLISHED
Original proceedings; petition for a writ of mandate/prohibition to challenge an order of the Superior Court of Orange County No. 30-2018-01014749, Randall J. Sherman, Judge. Petition for writ of mandate granted. Request for judicial notice granted in part.
The Myers Law Group, David P. Myers, Jason Hatcher, and Morgan Good for Petitioner. 1
No appearance for Respondent.
Littler Mendelson, Stacey E. James and Luis E. Lorenzana for Real Party in Interest.
OPINION
O'LEARY, P. J.
Cecilia De La Pena worked as an emergency department monitor technician (EDMT) for Children's Hospital of Orange County (CHOC). She filed a complaint alleging CHOC violated wage and hour laws, and sued CHOC both as a class representative and as a Private Attorney General Act (PAGA) representative. As pertinent here, the trial court granted summary adjudication in favor of CHOC on De La Pena's cause of action for unpaid overtime. De La Pena filed a petition for a writ of mandate, seeking to set aside the trial court's order. We agree the court's grant of summary adjudication on this claim was in error and grant De La Pena's petition for a writ of mandate.
FACTS
On January 23, 2013, CHOC conditionally offered De La Pena the position of EDMT. In so doing, CHOC informed De La Pena that "[w]e anticipate your date of hire to be February 19, 2013 in accordance with our next scheduled Hospital Orientation." De La Pena worked as an EDMT at CHOC from February 19, 2013, to January 26, 2018.
On January 30, 2013, after CHOC offered De La Pena the EDMT position, but before she started working, her work unit approved an alternative workweek schedule involving 12-hour shifts. The unit that approved the alternative schedule consisted of one employee, not De La Pena.
On February 19, 2013, De La Pena acknowledged she would be covered by the terms of the AWS. The AWS stated De La Pena's regular schedule would consist of three, 12-hour shifts. De La Pena generally worked three, 12-hour shifts per week. 2
The pre-election AWS disclosure stated in pertinent part, "In those occasions where the employee works more than 8 hours in the work day, but does not work their 12 hour shift, hours over 8 for the day, but less than 12 are paid at time and one-half." The "12 Hour Shift Questions And Answers" state: "Q: How will overtime be paid? [¶] A: Overtime is paid as follows: [¶] 1. Any hours over 8 in a workday but less than 12 for the shift are paid at time and one-half. Any hours over 12 in a workday are paid at double time. [¶] 2. Any hours over 40 regular hours in a workweek are paid at time and one-half." The post-election AWS Agreement states: "Each affected employee understands that he or she will not be paid any overtime pay for the first 12 hours of actual work in any of his or her scheduled days or the first 40 hours of work in the workweek."
In January 2019, De La Pena filed the operative complaint. It set forth seven causes of action: (1) failure to pay all overtime and double time wages (Labor Code, §§ 510, 1194 &Wage Order No. 5-2001); (2) failure to provide meal periods (§§ 512, 226.7 &Wage Order No. 5-2001; (3) failure to provide rest periods (§§ 512, 226.7 &Wage Order No. 5-2001); (4) failure to pay all wages due at separation (§§ 201, 203); (5) failure to provide accurate wage statements (§ 226); (6) unfair competition (Bus. &Prof. Code, §§ 17200, et seq.); and (7) Private Attorneys General Act (§§ 2698, et seq.). CHOC's affirmative defense alleged that all of the operative complaint's claims were barred because "Plaintiff and the putative class she seeks to represent were exempt from the daily overtime provisions . . . based upon the valid adoption of an alternative workweek schedule ...."
All further statutory references are to the Labor Code, unless otherwise indicated.
De La Pena's deposition testimony stated she never received overtime compensation when working "short shifts" (shifts lasting over eight hours but less than 12 hours) because CHOC coerced employees into "'volunteering'" to leave early to avoid 3 paying overtime compensation. "Q: And, Ms. De La Pena, did you ever work more than eight hours in a workday, but less than twelve hours? [¶] A: Yes. [¶] Q: And in those situations, were there any times when the hospital sent you home, for example, due to census or other reasons why the hospital no longer needed you to work that day? [¶] A: It's -- they did not send me home particularly. They would just say, 'Someone needs to go home.' [¶] . . . [¶] 'You guys can decide who.' So technically I didn't -- they didn't say specifically me, but they asked for a volunteer. [¶] Q: And in those situations, would you indicate on your timecard that you'd been sent home by the hospital? [¶] A: No. [¶] Q: Okay. And why not? [¶] A: Because . . . previously they said, 'If we send you home, it's because you're volunteering, not because we are forcing you to go home.' [¶] Q: And who told you that? [¶] A: We have daily huddles and the charge nurses would tell us. This was in the huddle multiple times by different charge nurses. [¶] . . . [¶] Q: And so would there be any documentation that we could look at that would let us know whether you were voluntarily going home, for example, to pick up your child or whether you were going home because you had volunteered to be one of the people that the hospital had asked to go home? [¶] A: It was just one form and I was just instructed to sign that I was volunteering, regardless if it was personal or if they were sending us home."
The quotations from De La Pena's deposition testimony refer to "Q:" for questions made by counsel and "A:" for answers give by De La Pena. On occasion, "A:" was also referred to as "witness" but we have used "A:" throughout for consistency.
De La Pena further testified: "Q: So were you ever paid overtime consistent with this policy where it says time and one-half regular rate is paid for hours worked in excess of eight and less than twelve? Were you ever paid that overtime for --[¶] A: No. [¶] Q: -- working more than eight hours -- working more than eight hours and less than twelve when the hospital requested that somebody go home and you were that somebody? [¶] A: No, they did not." 4
De La Pena testified she worked overtime hours off the clock without receiving overtime compensation: "Q: Okay. And then you just mentioned that there were times that you also performed work at home; is that correct? [¶] A: Yes. [¶] Q: And what type of work would you perform at home? [¶] A: I would make banners for our department. I would make poster boards for the educators that would be put around the hospital or in our break room or just teaching bulletin boards. [¶] Q: And who asked you to perform this work? [¶] A: Different committees. Basically the charge nurses or Trez, my manager. [¶] Q: And did anyone ever tell you that you either would or would not be paid for this work? [¶] A: Trez said I would be paid, but only until 40 hours and she would not be paying me overtime for these tasks. [¶] Q: Did Trez tell you not to work more than 40 hours on these tasks so that, for example, that your work during the week did not exceed 40 hours? [¶] . . . [¶] A: So she gave me a time limit, but said that she would not pay me over 40 hours. So I did explain to her that I did work more than 40 hours, I mean, with my shifts plus the time at home, and she stated she's not paying me overtime for making the banners. [¶] . . . [¶] Q: Okay. And how many hours do you believe you spent working on these at-home projects? [¶] . . . [¶] Q: Okay. So you believe there's about 40 hours of work for which you were not paid -- [¶] A: Yes."
De La Pena's deposition testimony also stated she performed chart audits off the clock without receiving overtime compensation: "Q: [A]re there any other instances where you believe you were not paid for overtime that you worked where you were entitled to overtime under CHOC's policy? [¶] . . . [¶] A: I did chart audits on some of my days off. Sometimes I would continue doing work even though I already clocked out because she said again that she didn't want to pay me overtime for extra side projects or work."
Based on this deposition testimony, De La Pena disputed CHOC's fact No. 14 its separate statement. Fact No. 14 stated: "[De La Pena] does not dispute that her wages were calculated and paid according to the time she input on her time records, 5 including all overtime she recorded." In her opposition to CHOC's separate statement, De La Pena responded to fact No. 14 that "[CHOC's] Supporting Evidence does not establish this alleged fact. [De La Pena] testified that [CHOC] paid her overtime based on her time records when it showed [De La Pena] worked in excess of 12 hours in a day or 40 hours in a week. [Record citations.] [¶] [CHOC] did not pay overtime for short shifts, that is shifts lasting over 8 hours in a day but less than 12 hours when [CHOC] sent [De La Pena] home. [Record citations including De La Pena's deposition transcript.]."
As pertinent here, the trial court granted summary adjudication in CHOC's favor as to the overtime cause of action. Specifically, the trial court's order stated: "As to Issue No. 1, challenging plaintiff's First Cause of Action for Failure to Pay All Overtime and Double Time Wages, defendant has shown that its Alternative Workweek Schedule applicable to plaintiff was valid. Plaintiff accepted defendant's employment offer on 1/23/13 but didn't start working for defendant until 2/19/13. Defendant held its Alternative Workweek Schedule (AWS) vote for plaintiff's unit on 1/30/13, the only employee in the unit on that date voted in favor of the plan, and the AWS became effective on 2/17/13. Plaintiff contends there is a triable issue of fact as to whether defendant's failure to allow plaintiff to vote on the AWS prevented it from being passed by the required 2/3 vote. The facts on this issue are undisputed, and the issue is one of law. The court concludes that plaintiff was not an employee of defendant on the date of the vote, and the AWS was duly adopted. Plaintiff was not an employee for defendant until her first day on the job, 2/19/13. Labor Code § 3351 defines an employee as 'every person in the service of an employer under any appointment or contract of hire or apprenticeship.' Plaintiff did not come into defendant's service until 2/19/13, after the AWS vote. (Similarly, I was hired by a law firm in early 1979 but didn't start working there until 8/13/79. Was I an employee for them as I finished law school? No.) Labor Code § 511(i) allows a work unit to consist of only one employee, and so that employee's 6 vote was sufficient as a matter of law to validate the AWS for plaintiff's work unit, precluding plaintiff's overtime and double time wage claims."
De La Pena sought writ relief from the trial court's order. On March 12, 2021, this court entered an alternative writ ordering the trial court to: "(1) vacate the order granting summary adjudication, and enter a new order following a hearing directed to the question of whether summary adjudication of the overtime cause of action should be granted. . .; [¶] Or, in the alternative, [¶] (2) SHOW CAUSE before this court why a peremptory writ of mandate should not issue." We explained: "[De La Pena] claims respondent court's December 11, 2020 order incorrectly granted summary adjudication of petitioner's cause of action for unpaid overtime. Among other arguments, [De La Pena] contends that her deposition testimony establishes a triable issue of fact regarding whether she worked: (1) 'off the clock' hours (work performed at home in addition to her normal schedule at the direction of her supervisors) and (2) involuntary 'short shift' hours (which were improperly classified as voluntary decisions by employees to leave work early before the completion of a 12-hour shift). [CHOC] asserts that these theories of recovery were not adequately pleaded in the operative complaint. [CHOC] also posits that [De La Pena's] testimony does not create a triable issue of fact because it is undisputed that [De La Pena] was paid for all overtime actually reported on her timesheets. Respondent court did not explicitly rule on this specific dispute in its order."
The trial court chose not to comply with our order's first alternative. As a result, CHOC filed a return, and De La Pena filed a formal reply.
DISCUSSION
De La Pena asserts the trial court incorrectly granted summary adjudication on her first cause of action for unpaid overtime. She contends CHOC failed to comply with mandatory AWS disclosure requirements and erred by finding she was not an affected employee at the time of the AWS vote. De La Pena also argues that even if the AWS was valid, she demonstrated a triable issue of material fact for unpaid overtime and 7 double time premiums. We agree the trial court erred by granting summary adjudication because De La Pena established a triable issue of material fact as to her claims for unpaid overtime and double time premiums.
I. Review by Petition for Writ of Mandate Is Appropriate
At the outset we consider CHOC's assertion De La Pena failed to identify any circumstances that warrant writ review. (United Health Centers of San Joaquin Valley, Inc. v. Superior Court (2014) 229 Cal.App.4th 63, 74 ["writ review is deemed extraordinary and appellate courts normally are reluctant to grant it"].) CHOC correctly states "[a]ppealing from a judgment after trial ordinarily provides an adequate remedy at law for a party aggrieved by an order granting summary adjudication." (Rehmani v. Superior Court (2012) 204 Cal.App.4th 945, 949 (Rehmani).) This is true even though Code of Civil Procedure section 437c, subdivision (m)(1), specifically permits review of an order granting summary adjudication by way of a petition for writ of mandate. (Quidel Corp. v. Superior Court (2020) 57 Cal.App.5th 155, 163.) However, "[t]he adequacy of an appellate remedy depends on the circumstances of the case, thereby necessarily vesting a large measure of discretion in the appellate court to grant or deny a writ. [Citation.]" (Fisherman's Wharf Bay Cruise Corp. v. Superior Court (2003) 114 Cal.App.4th 309, 319 (Fisherman's Wharf).) Here, several factors persuade us to exercise our discretion and consider the merits of the petition.
In Fisherman's Wharf, the trial court issued an order granting defendant's motion for summary adjudication and dismissing several claims. (Fisherman's Wharf, supra, 114 Cal.App.4th at p. 314.) Plaintiff filed a petition for a writ of mandate, seeking to compel the trial court to vacate its order and to enter an order denying the motion for summary adjudication. (Ibid.) The appellate court concluded writ relief was appropriate for several reasons, which are germane here.
First, the court noted: "If an erroneous ruling creates a likelihood that two trials will be necessary rather than one, the court will issue a writ of mandate. 8 [Citations.]" (Id. at 319.) The court noted "[t]hat likelihood exists", explaining: A "pretrial ruling has summarily disposed of a large portion of the case, while several causes of action remain for trial." (Ibid.) "The summarily adjudicated claims involve close and difficult issues of law." (Ibid.) Without intervention by writ relief, the remaining claims "would go forward while omitting significant legal issues that arise out [of] the same facts, and which quite likely should be tried together. [Citation.]" (Ibid.)
Here, as in Fisherman's Wharf, the trial court's summary adjudication ruling creates the risk of two trials because the overtime claim has been dismissed but several claims remain and absent writ relief, the remaining claims will proceed based on the same or similar facts that should be tried together.
Additionally, "On a motion for summary adjudication, the trial court has no discretion to exercise. If a triable issue of material fact exists as to the challenged causes of action, the motion must be denied. If there is no triable issue of fact, the motion must be granted. [Citation.]" (Fisherman's Wharf, supra, 114 Cal.App.4th at p. 320.) "If the trial court errs, it has made an error of law, which automatically constitutes an abuse of discretion." (Ibid.) Because the trial court granted summary adjudication where there remained a triable issue of material fact, it constituted an abuse of discretion.
II. Standard of Review
"'A defendant making the motion for summary adjudication has the initial burden of showing that the cause of action lacks merit because one or more elements of the cause of action cannot be established or there is a complete defense to that cause of action. [Citations.] If the defendant fails to make this initial showing, it is unnecessary to examine the plaintiff's opposing evidence and the motion must be denied. However, if the moving papers establish a prima facie showing that justifies a judgment in the defendant's favor, the burden then shifts to the plaintiff to make a prima facie showing of the existence of a triable material factual issue.' [Citation.] 'A prima facie showing is one that is sufficient to support the position of the party in question.' [Citation.] [¶] In 9 reviewing an order granting summary adjudication, 'we apply the same standard of review applicable on appeal from a grant of summary judgment. [Citation.] Accordingly, "'. . . we take the facts from the record that was before the trial court when it ruled on that motion. [Citation.] "'We review the trial court's decision de novo, considering all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained.'" [Citation.] We liberally construe the evidence in support of the party opposing summary [adjudication] and resolve doubts concerning the evidence in favor of that party....'"' [Citations.]" (Rehmani, supra, 204 Cal.App.4th at pp. 950-951.)
III. Adequacy and Accuracy of AWS Disclosures
De La Pena asserts the trial court ignored the purportedly misleading disclosures provided by CHOC about the AWS and overtime payments. We determine the disclosures were appropriate as a matter of law.
De La Pena alleges: "[T]he undisputed evidence reveals that CHOC failed to comply with the mandatory AWS disclosure requirements necessary to implement a valid AWS. CHOC's disclosure documents state that employees subject to the AWS will receive overtime compensation when working shifts lasting over 8 hours in a day but less than 12 hours. But CHOC's actual AWS agreement fails to provide for the payment of overtime wages for shifts lasting over 8 hours in a day but less than 12 hours. As such, CHOC failed to accurately disclose, as required, 'the effects of the proposed [AWS] on the employees' wages, hours, and benefits.' (8 C.C.R. § 11050(3)(C)(3).) The failure to comply with the AWS disclosure requirements renders an AWS 'null and void' and subjects an employer to liability for an unpaid overtime claim." (Italics and bold omitted.) We are not persuaded.
In support of her argument, De La Pena points to disclosures provided to her colleague who approved the AWS, indicating overtime would be paid on days when more than eight hours are worked: '"In those occasions where the employee works more 10 than 8 hours in the work day, but does not work their 12 hour shift, hours over 8 for the day, but less than 12 are paid at time and one-half.'" This disclosure applies only to situations in which the employee is sent home after working eight hours but prior to working the full 12-hour shift that is scheduled, also known as a "short-shift." The disclosure explains that overtime is not paid when a regularly scheduled 12-hour shift is worked, in a week where more than 40 hours are not worked.
The disclosure is consistent with California law. The pertinent wage orders provide: "If an employer whose employees have adopted an alternative workweek agreement permitted by this order requires an employee to work fewer hours than those that are regularly scheduled by the agreement, the employer shall pay the employee overtime compensation at a rate of one and one-half (1 ½) times the employee's regular rate of pay for all hours worked in excess of eight (8) hours, and double the employee's regular rate of pay for all hours worked in excess of 12 hours for the day the employee is required to work the reduced hours." (Cal. Code Regs., tit. 8, §§ 11040, subd. (3)(B)(2), 11050, subd. (3)(B)(2).)
Section 510, subdivision (a), similarly provides (as a general proposition) that employees must be paid "one and one-half times" for working beyond eight hours per day, and "twice the regular rate" for hours worked beyond 12 hours in a day. It is uncontested De La Pena was a non-exempt employee of CHOC subject to these overtime protections.
However, section 511 authorizes alternative workweeks in appropriate situations, without the payment of overtime: "(a) Upon the proposal of an employer, the employees of an employer may adopt a regularly scheduled alternative workweek .... A proposal to adopt an alternative workweek schedule shall be deemed adopted only if it receives approval in a secret ballot election by at least two-thirds of affected employees in a readily identifiable work unit." 11
Section 511, subdivision (a), only allows 10-hour alternative workweek shifts without overtime pay, but Wage Orders 4 and 5 (Cal. Code Regs., tit. 8, §§ 11040, 11050) allow employees like De La Pena (technician with a medical field employer) to work up to 12 hours without overtime pay pursuant to a properly authorized alternative workweek schedule. De La Pena was entitled to double time for any time worked beyond her 12-hour shift. (§ 511, subd. (b).)
The actual contract De La Pena signed stated that changes to her scheduled alternative shift would only occur in compliance "with all applicable legal requirements." Thus, the contract incorporated the wage order requirement that overtime must be paid for hours greater than eight if a scheduled 12-hour shift is cut short. The record demonstrated CHOC's official policy was to comply with the law in this area.
Accordingly, the AWS disclosures were valid and enforceable as a matter of law.
IV. Adequacy of Employee Vote to Approve AWS
De La Pena argues the trial court erred by making a factual finding she was not an affected employee, entitled to vote on whether to approve AWS. She also contends the secret ballot requirement included in the wage orders for approval of alternative work schedules are undermined by having a single employee in the "affected employees in the work unit." However, as the trial court accurately noted in its order, a work unit may consist of one employee. (§ 511, subd. (i).) We find no error.
The trial court determined De La Pena was not a member of the "work unit" prior to her first day of work on February 19, 2013. CHOC stated hiring and employment was contingent on completion of administrative matters (such as a legal residency check) and the start date of February 19, 2013, was noted in the offer letter as the beginning of employment assuming successful completion of these contingencies.
De La Pena asserts that, given she was already (tentatively) hired and set to start three weeks later, a better process would have been to wait for her start date to hold a vote on the AWS, or allow her to vote prior to her start date. The relevant work unit 12 would then have been two individuals, requiring unanimous approval to obtain the necessary two-thirds approval. De La Pena's deposition testimony stated she was informed at her interview that the job would include 12-hour shifts, which indicates CHOC expected the AWS to pass prior to De La Pena starting.
De La Pena concedes she received an offer of employment on January 23, 2013, the AWS vote was held on January 30, 2013, and she started working on February 19, 2013. De La Pena states, without legal citation, that "a hired employee who has yet to perform work is an affected employee subject to the AWS election disclosure requirements and is entitled to vote in an AWS election." Her lack of citation is telling. She does cite to an unpublished Ninth Circuit memorandum opinion, Jones v. AB Acquisition, LLC (9th Cir. 2017) 703 Fed.Appx. 563, 564 (Jones II). In Jones II, the Ninth Circuit affirmed summary judgment in favor of defendant employer. (Id. at p. 563.) The underlying facts from the district court explain plaintiff employee contested whether he was "'in the work unit'" at the time of the AWS election (which he voted in favor of and approved as the sole member of the work unit). (Jones v. AB Acquisition LLC (No. CV 14-8535 DSF (JEMX), 2016 WL 7638188, *2 (C.D.Cal., Apr. 4, 2016)) (Jones I).) The district court explained, plaintiff "argues that he was not 'in the work unit' because he had not yet started working in El Cajon when he cast his ballot. He was, however, working for Albertson's in a different location and had already accepted the position in El Cajon when he cast his ballot. [Citations.] His argument that he could not be 'in the work unit' until he worked his first shift in El Cajon is unsupported by the law or context of the AWS regulations. The Division of Labor Standards Enforcement (DLSE) explicitly recognizes that 'some employees of a single employer . . . may be eligible to vote on one particular job site while currently assigned to another job site.' [Citation.]" (Ibid.)
On appeal, the Ninth Circuit observed in dicta: "Indeed, if [plaintiff's] restrictive interpretation were correct, employees who had been offered and accepted a 13 position but not yet worked a shift would be unable to weigh in on the selection of their schedule by employees already in the unit. That result is at odds with what the AWS rules require." (Jones II, supra, 703 Fed.Appx. at p. 564.) The Jones plaintiff was a current employee at the time of the AWS vote. The context of the Ninth Circuit's analysis involved current employees voting on an AWS for a different location. By contrast, De La Pena had not yet started working at the time of the vote. The Jones II court dicta is not persuasive on these facts.
Hamilton v. Wal-Mart Stores, Inc. (C.D.Cal. Feb. 11, 2020) 2020 WL 2041938, *6 (Hamilton), is instructive. In that case, plaintiff employees brought a class action asserting unpaid overtime and other wage and hour claims. (Id. at *2.) Plaintiffs argued the employees who elected to adopt an AWS did so by way of a defective election, rendering the AWS improper. (Ibid.) Following trial, the jury found for Walmart on all counts, and plaintiffs renewed a previous motion for judgment as a matter of law. (Ibid.) Plaintiffs urged several arguments challenging the validity of the AWS, including that 33 employees who were newly hired after the AWS election (and began work the day following the AWS election) were "affected employees" entitled to vote in the AWS election. (Id. at *3.) The court rejected this argument, finding the employees who began working for Walmart after the AWS election "do not constitute 'affected employees' who must participate in elections occurring before commencement of their employment." (Id. at *6.)
Currently pending before the Ninth Circuit Court of Appeal (9th Cir. Case No. 19-56161.)
We agree with the court's reasoning in Hamilton. Employees who begin working after an AWS election do not constitute affected employees before their first day of work. While the timing of the AWS vote precluded De La Pena from participating, CHOC informed her of the AWS before she started working. It makes practical sense that newly hired employees who have been offered a position subject to a background 14 check or other formalities are not entitled to vote before they start working. Otherwise, an employer could end up with a policy voted on by people who never ultimately become employees. Furthermore, there are protections for employees who object to the AWS. De La Pena could have sought to repeal the arrangement or opt out, and CHOC would have been required to make reasonable efforts to provide such an accommodation. There is no evidence De La Pena did either. In fact, it appears she had no concern with the AWS at any time prior to the filing of this lawsuit. De La Pena concedes she started working 20 days after the AWS election and raises no legal grounds for this court to determine she was an affected employee at that time. Accordingly, she raises no material factual dispute as to whether she was an affected employee. The trial court did not err.
V. Other Evidence of Overtime Violations
De La Pena asserts her deposition testimony established a triable issue of fact regarding whether she worked: "off the clock" hours (work performed at home in addition to her normal schedule at the direction of her supervisors) and involuntary "short shift" hours (which were improperly classified as voluntary decisions by employees to leave work early before the completion of a 12-hour shift). CHOC counters these theories of recovery were not adequately pleaded in the operative complaint. It also posits De La Pena's testimony does not create a triable issue of fact because it is undisputed she was paid for all overtime actually reported on her timesheets. De La Pena has the better argument.
De La Pena disputed CHOC's fact No. 14 its separate statement. Fact No. 14 stated: "[De La Pena] does not dispute that her wages were calculated and paid according to the time she input on her time records, including all overtime she recorded." De La Pena opposed fact No. 14, citing her own deposition testimony describing CHOC failed to pay her for off the clock hours and short shifts. De La Pena claimed she was pressured to leave early, prior to the completion of her 12-hour shifts on occasion, and that she did not receive overtime pay as required by law. De La Pena asserted in her 15 testimony she was required to perform work outside her regular hours (often at home on special projects), which resulted in her working either more than 12 hours in a day, more than 40 hours in a week, or both. Her testimony is not specific about particular days. This deposition testimony is contradicted by other witnesses and is somewhat vague.
CHOC contends De La Pena failed to plead these factual assertions. It states the operative complaint "makes clear that the entire basis for her overtime claim and related class claims hinge solely on whether the AWS was valid." We disagree. A review of the operative complaint reveals the validity of the AWS is not pleaded. The complaint is vague, alleging violations of overtime law based on basic principles of law. It does not plead the allegations with particularity. But particularity is not required in this type of claim. Plaintiffs are required only to "set forth the essential facts of [their' case with reasonable precision and with particularity sufficient to acquaint a defendant with the nature, source and extent of his cause of action. [Citation.]" (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245.)
Perfection is not required at this early stage of the proceedings. Because De La Pena's deposition testimony raised a triable issue of material fact as to off the clock and short shift payments, these claims must survive summary adjudication.
VI. Request for Judicial Notice
De La Pena requests we take judicial notice of various articles regarding the law in this area, as well as relevant excerpts from the Division of Labor Standards Enforcement Policies and Interpretations Manual, including sections 43.4.1, 50.2, 56.1, 56.10.1, 56.22.2 (Exhibit No. 7). We grant the request as to exhibit No. 7, but otherwise deny as to the articles. They are not the proper subject of judicial notice. (County of Orange v. Smith (2005) 132 Cal.App.4th 1434, 1450.) 16
DISPOSITION
Let a peremptory writ of mandate issue directing the Orange County Superior Court to vacate its December 11, 2020, order granting CHOC summary adjudication on the first cause of action. The court shall enter a new order, in accordance with the views expressed in this opinion, denying CHOC's motion for summary adjudication on the first cause of action. De La Pena's request for judicial notice is granted as to exhibit No. 7. The case is remanded to the trial court for further proceedings consistent with this opinion. De La Pena shall recover her costs.
WE CONCUR: GOETHALS, J., ZELON, J. [*] 17
[*]Retired Justice of the Court of Appeal, Fourth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.