Memorandum Points and Authorities

Cal. Super. - 6th Dist.July 19, 2016

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 --- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT SUMMIT ESTATE, INC.’S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION SANJIV N. SINGH, A PROFESSIONAL LAW CORPORATION Sanjiv N. Singh [SBN 193525] 1650 South Amphlett Blvd. Suite 220 San Mateo, CA 94402 Tel.: (650) 389-2255 ssingh@sanjivnsingh.com Attorneys for Defendant Summit Estate, Inc. SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA UNLIMITED CIVIL JURISDICTION BRYAN GARRISON, AN INDIVIDUAL, Plaintiff, vs. SUMMIT ESTATE, INC.; AND DOES 1-20 INCLUSIVE, Defendant. Case No.: 16CV297817 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT SUMMIT ESTATE, INC.’S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION SUMMIT ESTATE, INC., A CALIFORNIA CORPORATION Cross-Complainant, vs. BRYAN GARRISON, an individual, Cross-Defendant. Hearing Date: June 6, 2019 9:00AM Department: 8 Judge: Hon. Sunil R. Kulkarni Trial Date: July 8, 2019 Action Filed: July 19, 2016 Electronically Filed by Superior Court of CA, County of Santa Clara, on 3/22/2019 12:44 PM Reviewed By: D Harris Case #16CV297817 Envelope: 2660882 16CV297817 Santa Clara - Civil D Harris 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 --- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT SUMMIT ESTATE, INC.’S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION iii TABLE OF CONTENTS I. Introduction .............................................................................................................................. 1 II. FACTUAL BACKGROUND .................................................................................................. 1 Plaintiff Cannot Prove that He Worked Any Hours for Which He was Not Properly Compensated. .............................................................................................................................. 1 i. Summit compensated and produced evidence that Plaintiff was paid for all the work he performed as an hourly overnight facilities manager and a part-time contractor weekend chef. .......................................................................................................................................... 1 ii. Summit paid Mr. Garrison a regular salary for all the work he performed since he was hired as a full-time Chef. .......................................................................................................... 2 iii. Plaintiff himself cannot prove or even recall the hours he arrived and left work while employed at Summit, whereas several witnesses have testified that he regularly arrived late and left early. ............................................................................................................................ 2 Summit Accommodated Plaintiff’s Alleged Disabilities Throughout His Employment Despite The Fact That Plaintiff Never Sought Reasonable Accommodation In Good Faith. ..... 3 III. ARGUMENT ....................................................................................................................... 5 Standards Governing Motions for Summary Judgment and Summary Adjudication. ........ 5 Summary Judgment/Adjudication of Plaintiff’s disability claims (1st, 2nd, 3rd, 4th, 5th, and 15th causes of action) should be granted because Plaintiff was not disabled within the definition provided by FEHA and Plaintiff failed to engage in the interactive process in good faith. ........ 5 i. First Cause of Action: Plaintiff’s disability discrimination cause of action fails because Plaintiff was not disabled under FEHA, could not perform the essential duties of the job, and/or was ultimately terminated for legitimate, nondiscriminatory reasons. ......................... 5 ii. Second Cause of Action: Plaintiff’s claim of failure to accommodate fails because Defendant’s alleged disability apparently did not allow for any reasonable accommodations. 7 iii. Third Cause of Action: Plaintiff’s cause of action for failure to engage in the interactive process fails because Plaintiff himself did not engage in the process and did not offer any potential reasonable accommodation for his disability. ........................................................... 8 iv. Fourth Cause of Action: Plaintiff’s cause of action for FEHA retaliation fails Summit did not retaliate against Plaintiff in violation of FEHA because Plaintiff was not disabled and Summit did not make any employment decisions based on Plaintiff’s alleged disability. ...... 9 v. Fifth Cause of Action: Plaintiff’s cause of action for Failure to Train and Supervise fails because Plaintiff does not have a disability and /or Defendant did not otherwise breach its obligations. ............................................................................................................................. 10 vi. Fifteenth Cause of Action: Plaintiff’s cause of action for Wrongful Termination in Violation of Public Policy fails because Plaintiff does not have a disability and/or Defendant did not violate any statutory law. ........................................................................................... 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 --- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT SUMMIT ESTATE, INC.’S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION iv Summary Judgement/Adjudication of Plaintiff’s Wage and Hour Claims (6th, 7th, 8th, 9th, 10th, 11th, 12th, and 13th causes of action) which arise out of an alleged failure to pay wages should be denied because Plaintiff was not owed any additional wages. .................................. 12 i. Sixth cause of action: Plaintiff’s cause of action for failure to pay wages under FLSA fails because Defendant paid Plaintiff for all hours of work that Plaintiff worked on behalf of Defendant. .............................................................................................................................. 12 ii. Seventh cause of action: Plaintiff’s cause of action for failure to pay wages in violation of the Labor Code fails because Defendant paid Plaintiff for all hours that Plaintiff worked on behalf of Defendant. .......................................................................................................... 14 iii. Eighth cause of action: Plaintiff’s cause of action for liquidated damages in connection with Plaintiff’s 6th and 7th causes of action fails because Plaintiff did not provide work . .... 14 iv. Ninth cause of action: Plaintiff’s 9th cause of action fails Defendant provided Plaintiff with every meal break and rest break to which Plaintiff was entitled. ................................... 15 v. 10th cause of action: Plaintiff’ cause of action for waiting time penalties fails because Plaintiff has failed to identify any work he performed for which he was not compensated and Defendant did not willfully withhold compensation. ............................................................. 16 vi. Eleventh cause of action: Plaintiff’s cause of action for failure to provide accurate wage statements fails because Plaintiff has failed to identify any work performed, or missed breaks or meal periods, for which he was not compensated and Defendant’s failure, if any, was unintentional. .......................................................................................................................... 16 vii. Twelfth cause of action: Plaintiff’s cause of action for civil penalties fails because Defendant has not violated any Labor Laws. ......................................................................... 17 viii. Thirteenth and Fourteenth causes of action: Plaintiff’s PAGA and UCL causes of action fail because Plaintiff cannot support his underlying causes of action. ........................ 18 IV. CONCLUSION .................................................................................................................. 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 --- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT SUMMIT ESTATE, INC.’S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION v TABLE OF AUTHORITIES Federal Cases Anderson v. Mt Clemens Pottery Co. 328 U.S. 680 (1946) ............................................................................................................... 13, 14 Bargas v. Rite Aid Corp. No. CV1303865MWFJEMX, 2017 WL 1156727, at *18 (C.D. Cal. Mar. 28, 2017) .................. 15 Celotex v. Catrett 477 U.S. at 325 (2010) .................................................................................................................... 5 Garcia-Ayala v. Lederle Parenterals, Inc. 212 F.3d 638 (1st Cir. 2000) ........................................................................................................... 6 In Re Oracle Corp. Securities Litigation, 627 F.3d 376 (9th Cir. 2010) .......................................................................................................... 5 Landers v. Quality Commc'ns, Inc., 771 F.3d 638, 644-45 (9th Cir. 2014) .......................................................................................... 12 Samper v. Providence St. Vincent Med. Ctr., 675 F.3d 1233 (9th Cir. 2012).. ...................................................................................................... 7 Taylor v. Principal Financial Group, Inc. 93 F.3d 155, 165 (5th Cir. 1996) ................................................................................................. 12 State Cases Amaral v. Cintas Corp. No. 2, (2008) 163 Cal. App. 4th 1157 ........................................................................................................... 14, 16 Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, ............................................................................................................................ 15 Gelfo v. Lockheed Martin Corp., (2006) 140 Cal. App. 4th 34 ....................................................................................................................... 5 Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215 ......................................................................................................................... 6 M.B. v. City of San Diego (1991) 233 Cal.App.3d 699 ........................................................................................................................ 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 --- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT SUMMIT ESTATE, INC.’S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION vi Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935 ......................................................................................................................... 6 Sandell v. Taylor-Listug, Inc. (2010) 188 Cal. App. 4th 297 ..................................................................................................................... 5 Scotch v. Art Inst. of Cal.-Orange County, Inc. (2009) 173 Cal. App. 4th 986 ..................................................................................................................... 8 Wills v. Superior Court (1995) 195 Cal.App.4th 143 ....................................................................................................................... 5 Statutes 29 U.S.C. § 201 ............................................................................................................................. 11 Business& Professions Code § 17200 .......................................................................................... 18 Business& Professions Code § 17203 .......................................................................................... 18 Code of Civil Procedure § 437c(p)(1) ............................................................................................ 4 Gov. Code § 12940(a) ..................................................................................................................... 9 Gov. Code § 12940(a)(1) ................................................................................................................ 9 Gov. Code § 12940(a)(2) ................................................................................................................ 9 Gov. Code § 12940(m) ................................................................................................................... 7 Gov. Code, §12926(k)(1)(B)........................................................................................................... 5 Labor Code § 1194........................................................................................................................ 15 Labor Code § 203.......................................................................................................................... 16 Labor Code § 226(e) ..................................................................................................................... 16 Labor Code § 510(a) ..................................................................................................................... 14 Labor Code §226.7........................................................................................................................ 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 --- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT SUMMIT ESTATE, INC.’S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION PAGE 1 OF 18 I. INTRODUCTION Plaintiff filed this action nearly 3 years ago and has failed to uncover any evidence that would materially support his causes of action. In every cause of action, given the evidence as set forth below and in Defendant’s Separate Statement of Facts, Plaintiff has failed to find or present sufficient factual evidence to support any of his causes of action. II. FACTUAL BACKGROUND The following summarizes facts relevant to disposition of this matter: Plaintiff Cannot Prove that He Worked Any Hours for Which He was Not Properly Compensated. i. Summit compensated and produced evidence that Plaintiff was paid for all the work he performed as an hourly overnight facilities manager and a part-time contractor weekend chef. Summit initially hired Mr. Garrison as an overnight facilities manager, first as an independent contractor and later as an employee paid on an hourly basis. See Declaration of Sanjiv N. Singh filed with Defendant’s Motion for Summary Judgement, Or Alternatively, Summary Adjudication (Singh Decl.), Exs. 1 at Response 1-2 (Plaintiff’s Response Special Interrogatories, Set One) Ex. 2 (Facilities Manager Job Description), and Ex. 5 (Earnings Record). While working as a facilities manager, Mr. Garrison represented himself as a chef and offered to provide part-time contractor services as a weekend chef. Id. at Ex. 3 (HR Audit Notes) and Ex. 4 (Representative invoice and check for services to Mr. Garrison). Summit compensated Mr. Garrison for every hour he worked, either on an hourly basis as facilities manager or as a part-time independent contractor for his weekend chef services and has kept earnings records to reflect this fact. See Defendant’s Separate Statement Filed in Support of Defendant’s Motion for Summary Judgment Undisputed Material Fact (“UMF”) 37 and 49; see also Singh Decl. at Ex. 5 (Earnings Record), Ex. 6 (Transaction List by Vendor), Ex. 77 (Invoice and Check paid to Mr. Garrison). Mr. Garrison never made a claim for overtime during these periods, and in fact acknowledged that he was also an independent contractor. See UMF 38; see also Singh Decl. at Ex. 8 (Garrison Depo) at 122:24- 123:14. Mr. Garrison received wage statements as a facilities manager and received checks for 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 --- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT SUMMIT ESTATE, INC.’S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION PAGE 2 OF 18 culinary work he performed as an independent contractor. See UMF 37; see also Singh Decl. at Exs. 5 (Earnings Record), 6 (Transaction List by Vendor), 77 (Invoice and Check paid to Mr. Garrison) and 9 (Garrison Depo) at 121:18-122:25. ii. Summit paid Mr. Garrison a regular salary for all the work he performed since he was hired as a full-time Chef. In August 12, 2013, Summit offered Mr. Mr. Garrison the full-time Chef position, Summit gave Mr. Garrison updated copies of all of Summit’s policies, including a policies and procedure handbook which contained all employee policies. Singh Decl. at Ex. 10 (August 12, 2013 Offer Letter), Ex. 11 (Code of Ethics); see also Ex. 12 (Garrison Depo) at 111:18-22. Summit also issued a company debit card to Mr. Garrison to be used exclusively by Mr. Garrison which unfortunately he ultimately used for unauthorized purposes. Id. at Ex. 13 (January 2016 Emails regarding credit card use). In good faith, Summit classified Mr. Garrison as an exempt employee as Mr. Garrison ran Summit’s meal service. Id. at Ex. 14 (Ponomarenko Depo) at 9:2-21, Ex. 16 (Pevar Depo) at 27:13 - 28:5, and Ex. 102 (Patsuris Depo) at 18:20-15. Mr. Garrison remained in the position of residential chef, and subject to the contractual obligations of his employment, until he was terminated on March 30, 2016 for breach of those obligations and for failing to communicate with Summit Estate regarding his alleged disability leave Id. at Ex. 19 (Ponomarenko Depo) at 9:1- 11:14. Summit Estate compensated Mr. Garrison for the work he performed as a residential chef from his hire date until the date of his termination. iii. Plaintiff himself cannot prove or even recall the hours he arrived and left work while employed at Summit, whereas several witnesses have testified that he regularly arrived late and left early. As a Chef at Summit Estate, Mr. Garrison was aware that his primary duties included creating a menu and running the food services department. Singh Decl. at Exs. 24. (Chef Job Description), Ex. 116 (Garrison Depo) at 262:11-15, Ex. 16 (Pevar Depo) at 28:13-17. Mr. Garrison was given wide discretion as to when and how to perform his duties. Id. at Ex. 28 (Ponomarenko Depo) at 128:8-12, 29, 30. Mr. Garrison often arrived late, took extended or multiple breaks, and left early. Several witnesses testified that Mr. Garrison arrived at work 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 --- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT SUMMIT ESTATE, INC.’S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION PAGE 3 OF 18 sometime between 10 and 11AM, and left work between 4PM to 5PM. Singh Decl. at Ex. 27 (Brown Decl.), Ex. 32 (Hernandez Decl.), Ex. 33 (Corral Decl.). This was consistent with the fact that Mr. Garrison was not required to work more than 8 hours on any given day. See Ex. 10 (August 12, 2013 Offer Letter). Mr. Garrison himself could not recount his own hours. Id. at Ex. 34 (Garrison Depo) at 343:14-16, Ex. 35 (Garrison Depo) at 104:13-105:1. Summit Accommodated Plaintiff’s Alleged Disabilities Throughout His Employment Despite The Fact That Plaintiff Never Sought Reasonable Accommodation In Good Faith. While Mr. Garrison was on his first purported disability leave, around November 2015, Summit understandably, as it was its right to do, hired another chef as a Chef to assist filling in for other chefs as a result of Mr. Garrison’s leave of absence and the upcoming holiday season. Singh Decl. Ex. 54 (Sinnott Depo) at 89:20-90:2, Ex. 55 (Ponomarenko Depo) at 141:3-10. Mr. Garrison did not lose his job, nor is there any evidence of a plan to replace him. Id.; see also Ex. 56 (Ponomarenko Depo) at 112:20-113:8, Ex. 57 (November 2015 Staff Emails). On or around January 12, 2016, after the contract Chef’s engagement was already concluded, Summit’s senior management team met with Mr. Garrison regarding his violations of company policies, including what appeared to be unauthorized use of a company credit card and unauthorized switching of schedules. Id. at Ex. 23 (January 12, 2016 Meeting Notes), 61 (Patsuris Depo) at 193:14-25. During this same meeting, Mr. Garrison adopted a belligerent and unprofessional attitude with Summit’s human resources and senior management team and then stormed out. Id.; see also Ex. 63 (Ponomarenko Depo) at 109:14-20. Indeed, oddly and surprisingly, the day after the meeting, on January 13, 2016, Mr. Garrison submitted another doctor’s note from Dr. Perez stating that Mr. Garrison required another week of total disability, followed by another doctor’s note requiring two weeks of disability leave, followed by a third doctor’s note requiring another month of disability leave. Singh Decl. at Exs. 64 (January 2016 Perez WSR), 65 (January 2016 Lynn WSR), 66 (February/March 2016 Perez WSRs) . Mr. Garrison had already taken 3 weeks of total disability leave from September into 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 --- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT SUMMIT ESTATE, INC.’S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION PAGE 4 OF 18 November. Id. at Ex. 41 (Garrison Documents Produced Concerning Disability Including WSRs), Ex. 43 (Garrison WSRs), Ex. 46 (Summit Staff Emails Regarding Garrison Leave), Ex. 47 (Additional Summit Staff Emals Regarding Garrison Leave). Two months into his second disability leave, as his disability leave was ending, Mr. Garrison contacted Summit on March 30, 2016, requesting an extension of his leave for a fourth time. Id. at Ex. 67 (Mar 2016 Perez WSR). At this point, Summit Estate decided to terminate Mr. Garrison because Mr. Garrison’s leaves of absences were lengthy, unforeseeable, and had already left Summit without a full-time chef for a total of 9 weeks. Id. at Ex. 19 (Ponomarenko Depo) at 10:2-19, Ex. 20 (Ponomarenko Depo) at 152:18- 154:6, Ex. 22 (Summit Staff Emails); see also Declaration of Paul Ponomarenko (Ponomarenko Decl) at ¶ 11; see also Singh Decl. at Ex. 19 (Ponomarenko Depo) at 10:2-13, Ex. 20 (Ponomarenko Depo) at 152:18-153:6, Ex. 23 (Jan 12, 2016 Meeting Notes). During this entire time, Mr. Garrison never engaged in the interactive process, or requested any accommodation other than submitting a doctor’s note that alleged he was not fit to work. Id. at Ex. 123 (Patsuris Depo) at 25:18-26:4; see also Ex. 98 (Ponomarenko Depo) at 152:18-23. It has been subsequently discovered that during the period of his second disability claim, from January 2016 onwards, Mr. Garrison was involved in surfing, snowboarding, and extensive business activity. See UMF 27; see also Singh Decl. at Ex. 50 (Garrison Depo) at 79:4-13, Ex. 51 (Garrison Depo) at 84:16-86:12, Ex. 52 (Leube Depo) at 51:4-55:25, Ex. 53 (Ms. Leube’s Wedding Website), Ex. 68 (Garrison Depo) at 331:3-333:10. In fact, during the month of March of 2016, when Mr. Garrison was drawing total disability benefits, Mr. Garrison was travelling hundreds of miles to boat shows trying to launch his boat business. See UMF 27; see also Ex. 70 (Leube Depo) at 59:5-60:22, Ex. 71 (Leube Depo) at 62:1-64:25. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 --- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT SUMMIT ESTATE, INC.’S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION PAGE 5 OF 18 III. ARGUMENT Standards Governing Motions for Summary Judgment and Summary Adjudication. California Code of Civil Procedure § 437c(p)(2) states: “A defendant or cross-defendant 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, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action.” When the non-moving party bears the burden of proof at trial, which is the case here, “the moving party need only prove that there is an absence of evidence to support the non-moving party’s case” In Re Oracle Corp. Securities Litigation 627 F.3d 376 at 388 (9th Cir. 2010) (citing Celotex v. Catrett, 477 U.S. at 325 (1986)). Moreover, California Courts have reiterated that, “justice requires that a defendant be as much entitled to be rid of an unmeritorious lawsuit as a Plaintiff is entitled to maintain a good one…” (Internal Citation Omitted) M.B. v. City of San Diego (1991) 233 Cal.App.3d 699, 704. In this case, Plaintiff has failed to meet even his initial burden of establishing facts to support key elements for each of the various causes of action that he brought even after nearly 3 years of discovery, therefore Defendant’s Motion for Summary Judgment, or alternatively, Summary Adjudication, should be granted. Summary Judgment/Adjudication of Plaintiff’s disability claims (1st, 2nd, 3rd, 4th, 5th, and 15th causes of action) should be granted because Plaintiff was not disabled within the definition provided by FEHA and Plaintiff failed to engage in the interactive process in good faith. i. First Cause of Action: Plaintiff’s disability discrimination cause of action fails because Plaintiff was not disabled under FEHA, could not perform the essential duties of the job, and/or was ultimately terminated for legitimate, nondiscriminatory reasons. “On a disability discrimination claim, the prima facie case requires the plaintiff to show he or she (1) suffered from a disability, or was regarded as suffering a disability; (2) could perform the essential duties of the job with or without reasonable accommodations [i.e., was qualified to 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 --- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT SUMMIT ESTATE, INC.’S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION PAGE 6 OF 18 do the job]; and (3) was subjected to an adverse employment action because of the disability or perceived disability. [Citation.]” Wills v. Superior Court (1995) 195 Cal.App.4th 143, 159-160. According to FEHA, “physically disabled” means a physiological condition that limits a major life activity. See Gov. Code, §12926(k)(1)(B); Sandell v. Taylor-Listug, Inc. (2010) 188 Cal. App. 4th 297, 311; Gelfo v. Lockheed Martin Corp., (2006) 140 Cal. App. 4th 34, 47 (“it is insufficient for [Plaintiff] simply to allege a disability or to identify an injury or physical condition… [Plaintiff] must demonstrate his injury or physical condition…makes “difficult” the achievement of work or some other major life activity.”) In this case, Plaintiff does not meet its initial burden for summary judgment because he was not disabled for the purposes of FEHA since he claimed physical disability but was able to continue sports activities while on disability leave. See supra at Section II(B). Additionally, Defendant decided to terminate Plaintiff independent of Plaintiff’s alleged disability. Singh Decl. at Ex. 19 (Ponomarenko Depo) at 10:2-11:14, Ex. 100 (Patsuris Depo) at 31:22-32:17, 21. Defendant’s decisions about Plaintiff’s employment were all made, not because he was disabled (which he was not), but because Plaintiff had violated company polices, and imposed an undue burden on Summit when the only accommodation apparently available for Plaintiff was an indefinite leave of absence. Id. at Ex. 21 (Jan 10 2016 Progressive Counselling Notice), Ex. 23 (Jan 12 2016 Meeting Notes), Exs. 64 (Jan 2016 Perez WSR), 65 (Jan 2016 Lynn WSR) 66 (Feb/Mar 2016 Perez WSR); Ex. 19 (Ponomarenko Depo) at 11:1-14; Ex. 94 (Ponomarenko Depo) at 10:2-19; Ponomarenko Decl. at ¶ 3. Additionally, even if Plaintiff was disabled, courts have held that holding a position open indefinitely is not a reasonable accommodation. See Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 226 (“Reasonable accommodation does not require the employer to wait indefinitely for an employee's medical condition to be corrected.”); See Also Garcia-Ayala v. Lederle Parenterals, Inc.212 F.3d 638, 648 (1st Cir. 2000); Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 950-951. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 --- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT SUMMIT ESTATE, INC.’S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION PAGE 7 OF 18 Finally, Plaintiff failed to engage in the interactive process with Summit (as more specifically discussed in Section III(B)(iii) below) to determine whether a reasonable accommodation could be found for Plaintiff to continue his employment with Summit. See UMF 17-25, and 29. As a result, even if Plaintiff had not violated company polices, at no time during his employment did Plaintiff provide any evidence that he would have been able perform the essential duties of his job with any reasonable accommodation. Therefore, Defendant should be granted summary adjudication as to Plaintiff’s first cause of action for disability discrimination as well as related FEHA causes of action as further discussed below. Even if it is conceded that there was a disability, there is no evidence that he was terminated due to the disability. ii. Second Cause of Action: Plaintiff’s claim of failure to accommodate fails because Defendant’s alleged disability apparently did not allow for any reasonable accommodations. California Gov. Code § 12940(m) states that it is unlawful for an employer “to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee [except for] any accommodation that is demonstrated by the employer or other covered entity to produce undue hardship.” (emphases added). The court in Samper v. Providence St. Vincent Med. Ctr. specifically held that, “[a]n accommodation that would allow [employee] to ‘simply... miss work whenever she felt she needed to and apparently for so long as she felt she needed to [a]s a matter of law... [is] not reasonable’ on its face.” (Internal Citation Omitted). 675 F.3d 1233 (9th Cir. 2012). In this case, Plaintiff did not seek reasonable accommodation. Defendant did not know what Plaintiff’s disability and limitations would allow, and Plaintiff’s only apparent accommodation-an indefinite leave of absence-resulted in undue hardship on for Defendant. See UMF 17-25, 29. Plaintiff never informed Defendant about any specific limitations caused by his disability. See Id. Moreover, Plaintiff’s various doctor’s notes stating that Plaintiff required a leave of absence from work did not include any alternative accommodations or advisories 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 --- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT SUMMIT ESTATE, INC.’S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION PAGE 8 OF 18 regarding physical or mental limitations. See UMF 24; see also Singh Decl. at 120 (Patsuris Depo) at 124:15-22; 98 (Ponomarenko Depo) at 152:18-23; 99 (Ponomarenko Depo) at 155:5-156:9; and 61 (Patsuris Depo) at 193:5-12. As a result, despite Defendant’s efforts, Defendant was not able to provide Plaintiff with a reasonable accommodation. Moreover, as set forth in the next Section III(B)(iii), Plaintiff failed to engage with Defendant in the interactive process to discuss potential accommodations. Therefore, Defendant should be granted summary adjudication as to Plaintiff’s second cause of action for failure to accommodate in violation of FEHA. iii. Third Cause of Action: Plaintiff’s cause of action for failure to engage in the interactive process fails because Plaintiff himself did not engage in the process and did not offer any potential reasonable accommodation for his disability. Defendant should be granted summary adjudication as to Plaintiff’s third cause of action for similar reasons articulated above in Sections III(B)(i) and (ii) regarding Plaintiff’s related FEHA claims. Plaintiff’s third cause of action specifically fails because Plaintiff himself failed to initiate or engage in the interactive process with Summit. California courts have held that, The interactive process imposes burdens on both the employer and employee. The employee must initiate the process unless the disability and resulting limitations are obvious. ‘Where the disability, resulting limitations, and necessary reasonable accommodations, are not open, obvious, and apparent to the employer, . . . the initial burden rests primarily upon the employee . . . to specifically identify the disability and resulting limitations, and to suggest the reasonable accommodations.’ (Taylor v. Principal Financial Group, Inc. 93 F.3d 155, 165 (5th Cir. 1996)). (Emphasis added.). Scotch v. Art Inst. of Cal.-Orange County, Inc. (2009) 173 Cal. App. 4th 986. In this case, Plaintiff did not inform Defendant about his limitations or how his alleged disability could be accommodated. Additionally, none of Plaintiff’s medical notes contained any information about the nature of his alleged disability aside from a vague reference to the injury being, “industrial in nature”. Defendant could not determine, and Plaintiff did not offer, any 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 --- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT SUMMIT ESTATE, INC.’S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION PAGE 9 OF 18 potential accommodations that might allow Plaintiff to perform the essential duties of his job. Therefore, Defendant should be granted summary adjudication as to Plaintiff’s third cause of action. Singh Decl. at Ex. 64 (Jan 2016 Perez WSR), 65 (Jan 2016 Lynn WSR), 66 (Feb/Mar 2016 Perez WSR), 67 (Mar 2016 Perez WSR); cf. Ex. 23 (Jan 12, 2016 Meeting Notes); see Ex. 94 (Ponomarenko Depo) at 10:2-19, Ex. 120 (Patsuris Depo) at 124:15-22, Ex. 98 (Ponomarenko Depo) at 152:18-23, Ex. 99 (Ponomarenko Depo) at 155:5-156:9. iv. Fourth Cause of Action: Plaintiff’s cause of action for FEHA retaliation fails Summit did not retaliate against Plaintiff in violation of FEHA because Plaintiff was not disabled and Summit did not make any employment decisions based on Plaintiff’s alleged disability. Defendant should also be granted summary adjudication as to Plaintiff’s fourth cause of action for the reasons articulated the previous sections regarding Plaintiff’s related FEHA claims. Plaintiff’s fourth cause of action specifically fails because Defendant did not take any action- including retaliatory action-against Plaintiff based on his alleged disability or medical condition. Gov. Code § 12940(a) provides that it is unlawful for an employer to discriminate against a person with a mental disability, physical disability, or medical condition. However, Gov. Code § 12940(a)(1) expressly states that, (1) This part does not prohibit an employer from refusing to hire or discharging an employee with a physical or mental disability, or subject an employer to any legal liability resulting from the refusal to employ or the discharge of an employee with a physical or mental disability, if the employee, because of a physical or mental disability, is unable to perform the employee’s essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger the employee’s health or safety or the health or safety of others even with reasonable accommodations. See also Gov. Code § 12940(a)(2) which provides the same exception for employees with medical conditions. Defendant’s decisions about Plaintiff’s employment were all made, not because he was disabled (which Defendants now believe he was not), but because he had violated company polices 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 --- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT SUMMIT ESTATE, INC.’S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION PAGE 10 OF 18 and imposed an undue burden on Summit when the only apparent accommodation for Plaintiff’s alleged disability was an indefinite leave of absence. Id. at Ex. 21 (Jan 10 2016 Progressive Counselling Notice), Ex. 23 (Jan 12 2016 Meeting Notes), Exs. 64 (Jan 2016 Perez WSR), 65 (Jan 2016 Lynn WSR) 66 (Feb/Mar 2016 Perez WSR); Ex. 19 (Ponomarenko Depo) at 11:1-14; Ex. 94 (Ponomarenko Depo) at 10:2-19; Ponomarenko Decl. at ¶ 3. First, there is no evidence that Defendant took adverse employment actions against Plaintiff on the basis of his purported disability or medical condition. Despite Plaintiff’s claims, Plaintiff was hired as a full-time chef, and retained that title until he was terminated. See UMF 6. Defendant ultimately terminated Plaintiff on the basis of his past behavior and breach of company policies. See UMF 33; see also Singh Decl. at Exs. 19 (Ponomarenko Depo) at 10:3-9; 98 (Ponomarenko Depo) at 152:18-23; 99 Ponomarenko Depo at 155:5-156:9; and 100 (Patsuris Depo at 31:22-32:1). Moreover, Plaintiff’s indefinite leave of absence was not a reasonable accommodation and caused an undue burden on Defendant. Additionally, there was no apparent reasonable accommodation for Plaintiff’s alleged disability or medical condition that would allow Plaintiff to perform the essential duties of his job, which required regular attendance on-site. See UMF 17-25, 29. Plaintiff did not pursue or offer any other accommodation for his alleged disability. See UMF 25, 29. Moreover, Plaintiff did not give Defendant any details regarding his alleged disability or the limitations that his alleged disability imposed. Id. Therefore, Defendant could not determine what accommodation would be reasonable and rational for Plaintiff. See UMF 24. Singh Decl. at 120 (Patsuris Depo) at 124:15-22; 98 (Ponomarenko Depo) at 152:18-23; 99 (Ponomarenko Depo) at 155:5-156:9; and 61 (Patsuris Depo) at 193:5-12. v. Fifth Cause of Action: Plaintiff’s cause of action for Failure to Train and Supervise fails because Plaintiff does not have a disability and /or Defendant did not otherwise breach its obligations. Defendants should be granted summary judgement as to Plaintiff’s fifth cause of action because this cause of action is derivative of Plaintiff’s FEHA claims, which are all unsupported. Moreover, Plaintiff’s fifth cause of action also fails because Plaintiff has not set forth any evidence 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 --- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT SUMMIT ESTATE, INC.’S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION PAGE 11 OF 18 to support the factual basis of this cause of action in the first place. In fact, Plaintiffs have neither set forth the extent of Defendant’s alleged duty to train and supervise or the facts showing how Defendant breached such duty. Defendant’s employees responded appropriately to Plaintiff’s alleged disability accommodation, given Defendant’s lack of information and Plaintiff’s lack of communication. See Singh Decl. at Ex. 120 (Patsuris Depo) at 124:15-22; see also Ex. 98 (Ponomarenko Depo) at 152:18-23. Defendant met its obligation to engage in the interactive process even though Defendant failed to provide any specifics regarding his alleged disability or leave. Id. at Ex. 64 (Jan 2016 Perez WSR), 65 (Jan 2016 Lynn WSR), 66 (Feb/Mar 2016 Perez WSR), 67 (Mar 2016 Perez WSR). All of Mr. Garrison’s supervisors were provided or had requisite training on how to handle disability issues. See UMF 31; See Ex. 18 (USB Drive), 125 (Patsuris Depo) at 69:15-21, Ex. 89 at 5/42-7/42 (Employee Handbook). Therefore, summary adjudication should be granted as to Plaintiff’s fifth cause of action. vi. Fifteenth Cause of Action: Plaintiff’s cause of action for Wrongful Termination in Violation of Public Policy fails because Plaintiff does not have a disability and/or Defendant did not violate any statutory law. Defendants should be granted summary judgement as to Plaintiff’s fifteenth cause of action because this cause of action is similarly derivative of Plaintiff’s FEHA claims, which are all unsupportable. As stated above in Section III(B)(iv): There is no evidence that Plaintiff was terminated based on his alleged disability. Plaintiff was ultimately terminated for his violation of company policies. See UMF 33; see also Singh Decl. at Exs. 19 (Ponomarenko Depo) at 10:3-9; 98 (Ponomarenko Depo) at 152:18- 23; 99 Ponomarenko Depo at 155:5-156:9; and 100 (Patsuris Depo at 31:22-32:1). Additionally, to the extent that Plaintiff’s indefinite medical leave was taken into consideration: Plaintiff’s indefinite leave of absence was not a reasonable accommodation and caused an undue burden on Defendant. Plaintiff also failed to engage in the interactive process to identify whether a reasonable accommodation could be made, and therefore Defendant could not determine what and whether 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 --- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT SUMMIT ESTATE, INC.’S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION PAGE 12 OF 18 any accommodation could be made for Plaintiff. See UMF 24; see also Singh Decl. at 120 (Patsuris Depo) at 124:15-22; 98 (Ponomarenko Depo) at 152:18-23; 99 (Ponomarenko Depo) at 155:5- 156:9; and 61 (Patsuris Depo) at 193:5-12. . As a result, even if Defendant’s decision to terminate Plaintiff was based on Defendant’s indefinite medical leave, Defendant’s decision did not violate any statutory law or public policy. Therefore, summary adjudication should be granted as to Plaintiff’s fifteenth cause of action. Summary Judgement/Adjudication of Plaintiff’s Wage and Hour Claims (6th, 7th, 8th, 9th, 10th, 11th, 12th, and 13th causes of action) which arise out of an alleged failure to pay wages should be denied because Plaintiff was not owed any additional wages. Defendant’s motion for summary judgment or adjudication should be granted as to Plaintiff’s wage and hour claims because Plaintiff was an exempt employee, was paid a regular salary, and was not entitled to overtime pay. Alternatively, even if Plaintiff was misclassified, summary judgment or adjudication should nevertheless be granted because Plaintiff cannot meet even his initial burden of proving that he worked overtime. See UMF 45; see also Singh Decl. at Exs. 10 (August 12, 2013 Employment Agreement with a daily work schedule of less than 8 hours); 31(Ponomarenko Depo.) at 122:13-16; 76 (Ponomarenko Depo) at 120:23-122:23; 75 (Patsuris Depo) at 112:9-17; 32 (Declaration of Alex Hernandez) at ¶ 3; 33 (Declaration of Manuel Corral) at ¶ 3; 27 (Declaration of Randy Brown) at ¶ 4; 86 (Ponomarenko Depo.) at 125:12-127:5; 87 (Sinnott Depo.) at 74:2-4; and 128 ( Sinnott Depo at 68:24-70:9). i. Sixth cause of action: Plaintiff’s cause of action for failure to pay wages under FLSA fails because Defendant paid Plaintiff for all hours of work that Plaintiff worked on behalf of Defendant. A claim for failure to pay wages under the FLSA requires: (1) Plaintiff was an employee; (2) Plaintiff’s work was engaged in commerce; (3) Plaintiff worked more than 40 hours in a workweek; and (4) Plaintiff did not receive overtime premium compensation for hours worked in excess of forty hours in a workweek. 29 U.S.C. § 201. See also Landers v. Quality Commc'ns, Inc., 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 --- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT SUMMIT ESTATE, INC.’S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION PAGE 13 OF 18 771 F.3d 638, 644-45 (9th Cir. 2014) (“in order to survive a motion to dismiss, a plaintiff asserting a claim to overtime payments must allege that she worked more than forty hours in a given workweek without being compensated for the overtime hours worked during that workweek.”) Moreover, where there are no time records, the Supreme Court held that an employee has met its initial burden of proof only when, “he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference.” Anderson v. Mt. Clemens Pottery Co. 328 U.S. 680, 687 (1946). In this case, Plaintiff has failed to present any admissible evidence that he performed work for Defendant for which he was not properly compensated. See UMF 37-38, 47. Prior to August 2013, Defendant paid Plaintiff for all of the time he worked as a part-time facilities manager along additional 1099 compensation for work he provided as an independent contractor; Defendant has submitted HR audits to show Mr. Garrison was paid for every hour worked, and in some instances, as set forth in Ex. 3, double paid. Id.; see also Singh Decl. at Exs. 3 (HR Audit Notes), 5 (Earnings Record), 6 (Transaction List by Vendor), Ex. 129 (Patsuris Depo) at 92:8-94:10. Beginning in August 2013, Plaintiff was a full-time employee receiving a regular salary despite several witnesses testifying to the fact that Plaintiff regularly arrived to work late and left early. See UMF 45, 46; see also Singh Decl. at Ex. 31 (Ponomarenko Depo) at 112:13-16, Ex. 32 (Hernandez Decl.), Ex. 33 (Corral Decl.); see also Ex. 35 (Garrison Depo) at 104:19-105:12. In fact, Plaintiff himself, despite bringing this lawsuit, could not even answer what hours he purportedly worked in his own deposition. Id. Singh Decl. at Ex. 35 (Garrison Depo) at 104:19- 105:12. Plaintiff has failed to to offer any evidence he worked any hours for which he was not compensated or improperly compensated under FLSA. See UMF 45, 46. Therefore, Defendant’s motion for summary adjudication of Plaintiff’s sixth cause of action for failure to pay wages under FLSA should be granted. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 --- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT SUMMIT ESTATE, INC.’S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION PAGE 14 OF 18 ii. Seventh cause of action: Plaintiff’s cause of action for failure to pay wages in violation of the Labor Code fails because Defendant paid Plaintiff for all hours that Plaintiff worked on behalf of Defendant. Under California Labor Code § 510(a), a claim for failure to pay wages includes: (1) Plaintiff performed work for defendant; (2) Plaintiff worked in excess of 8 hours per day or 40 hours per week; and (3) Plaintiff was not paid the overtime rate for any overtime hours worked. See Huntington Mem'l Hosp. v. Superior Court (2005)131 Cal. App. 4th 893 at 377. As stated in the previous section, Plaintiff has failed to provide any evidence that he worked any overtime for which he is owed additional compensation. See supra at Section III(B)(ii). Even if Defendant did not keep records of an exempt employee’s daily hours, Plaintiff has failed to provide any evidence to support that he provided work to Summit for which he was not compensated. Anderson v. Mt Clemens Pottery Co. 328 U.S. 680, 687 (1946); Amaral v. Cintas Corp. No. 2 (2008) 163 Cal. App. 4th 1157, 1189. Here, Plaintiff has failed to present any evidence that he performed work for which he was not compensated. See supra at Section III(C)(i). Therefore, Defendants should be granted summary adjudication as to Plaintiff’s seventh cause of action for failure to pay wages in violation of California Labor Code. iii. Eighth cause of action: Plaintiff’s cause of action for liquidated damages in connection with Plaintiff’s 6th and 7th causes of action fails because Plaintiff did not provide work . Plaintiff’s eighth cause of action for liquidated damages in connection with Plaintiff’s 6th and 7th causes of action fails for the same reasons that Plaintiff’s sixth cause of action fails. Plaintiff has not provided any proof of hours that he worked for which he was not compensated whereas Defendants have provided ample evidence that Plaintiff was paid properly while working for Defendant as a part-time facilities manager, an independent contractor, and as an exempt employee who was not entitled to overtime, regularly worked less than full-time, and was paid a full-time salary. Singh Decl. at Ex. 31 (Ponomarenko Depo) at 112:13-16, Ex. 32 (Hernandez Decl.), Ex. 33 (Corral Decl.); see also Ex. 35 (Garrison Depo) at 104:19-105:12. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 --- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT SUMMIT ESTATE, INC.’S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION PAGE 15 OF 18 As a result of Plaintiff’s failure to establish that he worked more than 40 hours per workweek or more than 8 hours per day (Ex. 35 (Garrison Depo) at 104:19-105:12) Plaintiff is not entitled to liquidated damages under Labor Code § 1194 as set forth in Plaintiff’s 8th cause of action. See supra at Section III(B)(i) and (ii). iv. Ninth cause of action: Plaintiff’s 9th cause of action fails Defendant provided Plaintiff with every meal break and rest break to which Plaintiff was entitled. An employer satisfies his obligation to provide a meal break “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 Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1040 (emphasis added). Courts require only that employers to provide a reasonable opportunity to take an uninterrupted meal break, not to ensure that every employee does, in fact, take such breaks. Bargas v. Rite Aid Corp., No. CV1303865MWFJEMX, 2017 WL 1156727, at *18 (C.D. Cal. Mar. 28, 2017) In this case, Defendant provided Plaintiff with a copy of Summit Estate’s employee handbook, which included a meal break policy in compliance with California Labor Code §226.7 et seq. Singh Decl. at Ex. 11 (Code of Ethics which references acceptance of other policies), 18 (USB Drive); see also Ex. 89 (Summit Handbook) at p. 17/42. His supervisors have testified that he was aware of the break policies, encouraged to take requisite breaks, and had ample opportunity to do so. Id. at Ex. 29 (Sinnott Depo) at 140:7-18, 76; see also UMF 42-44. Plaintiff himself, when asked whether he took the breaks, could not give a clear answer on the issue and seems to think the mere fact he voluntarily socialized with clients in the common areas during his break time regularly meant he was not taking a break. See UMF 44; see also Singh Decl. at Ex. 130 (Garrison Depo) at 346:6-14. Defendant allowed Plaintiff wide discretion on when and how he was to perform his duties, including the freedom to choose when to take his meal break so long as it was consistent with the employee handbook. See UMF 43; see also at Ex. 29 (Sinnott Depo) at 140:7- 9; See also Ponomarenko Decl. at ¶ 2. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 --- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT SUMMIT ESTATE, INC.’S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION PAGE 16 OF 18 v. 10th cause of action: Plaintiff’s cause of action for waiting time penalties fails because Plaintiff has failed to identify any work he performed for which he was not compensated and Defendant did not willfully withhold compensation. Labor Code § 203 states that an employee may be entitled to waiting time penalties when an employer willfully fails to pay compensation. Amaral, supra at1201 (2008) (“‘willful,’ as used in section 203, is that an employer has intentionally failed or refused to perform an act which was required to be done.”). First, Plaintiff is not due any additional wages for any work that he performed. Please see supra at Section III(C)(i) - (iii). Moreover, Defendant is currently engaged in a good faith dispute regarding whether any wages are due to Plaintiff, and therefore Defendant is not “willfully” failing to pay wages in violation of this Labor Code section. Plaintiff has not provided any evidence that any failure on Defendant’s part to pay wages owed was willful or intentional. As a result, Defendant’s motion for summary adjudication should be granted as to Plaintiff’s 10th cause of action. vi. Eleventh cause of action: Plaintiff’s cause of action for failure to provide accurate wage statements fails because Plaintiff has failed to identify any work performed, or missed breaks or meal periods, for which he was not compensated and Defendant’s failure, if any, was unintentional. Labor Code § 226(e) provides that, “an employee suffering injury as a result of a knowing and intentional failure by employer to [provide accurate wage statements in compliance] with subdivision (a) is entitled to recover the greater of all actual damages or fifty dollars ($50) for the initial pay period in which the violation occurs and one hundred dollars (SI00) per employee for each violation in a subsequent pay period. not exceeding an aggregate penalty of four thousand dollars ($4000). and is entitled to an award of costs and attorneys fees.” (emphasis added). When Plaintiff was working a non-exempt job as Facilities Manager in early 2013, Defendant did keep an appropriate Earnings Record of his overtime hours and he was paid accordingly. Id. at Ex. 5 (Earnings Record). See UMF 37, 38. At all times, Defendant provided Plaintiff with accurate wage statements, copies of which are provided by both Plaintiff and 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 --- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT SUMMIT ESTATE, INC.’S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION PAGE 17 OF 18 Defendant in connection with Plaintiff’s Motion for Summary Judgment and Defendant’s opposition. Id; see also Singh Decl. at Ex. 90 (Wage Statements). Beginning in August 2013, while Plaintiff provided work for Defendant as a full-time exempt employee, Plaintiff was paid a monthly salary and was provided with accurate wage statements that included Plaintiff’s gross wages earned, total hours worked, and hourly rate. Singh Decl. at Ex. 90 (Wage Statements). At all times, Defendant provided Plaintiff with all meal breaks and rest breaks that Plaintiff was entitled to. See UMF 42-44. Plaintiff has not provided any evidence to contrary, and has not provided any evidence of improper compensation. Therefore, Defendant has always provided Plaintiff with accurate wage statements. Even if Plaintiff is ultimately found to be a non-exempt employee, and that his statements should have included applicable hour breakdowns for a non-exempt employee, Defendant’s failure to include applicable hour breakdowns would not have been a “knowing and intentional” failure. Plaintiff has never brought up the issue to Defendant’s attention, and therefore Defendant was unaware of mistakes in the wage statements, if any. Otherwise, Plaintiff cannot provide any proof that any mistakes in the wage statements were knowing and intentional. Therefore, Defendant’s motion for summary adjudication as to Plaintiff’s 11th cause of action should be granted. vii. Twelfth cause of action: Plaintiff’s cause of action for civil penalties fails because Defendant has not violated any Labor Laws. Plaintiff’s 12th cause of action is premised on Plaintiff’s claims that: (1) Plaintiff worked more than 8 hours a day or more than 40 hours per week without being paid overtime; (2) Defendant did not provide Plaintiff with appropriate meal and rest breaks; (3) Defendant willfully withheld payment to which Plaintiff was entitled; and (4) Defendant knowingly provided Plaintiff with inaccurate wage statements. However, as discussed above, Defendant did not violate any of these labor laws and Plaintiff has not provide any evidence in support of his claims. See supra at Section III(B) (i)-(v). 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 --- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT SUMMIT ESTATE, INC.’S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION PAGE 18 OF 18 viii. Thirteenth and Fourteenth causes of action: Plaintiff’s PAGA and UCL causes of action fail because Plaintiff cannot support his underlying causes of action. Plaintiff’s 13th and 14th causes of action are derivative of Plaintiff’s other claims which are all unsupportable. Plaintiff’s claims under PAGA are premised on his arguments that Defendant violated various Labor Codes as set forth in Plaintiff’s 6th through 11th causes of action. However, as provided above, Plaintiff is unable to establish all the elements of any alleged violations. See supra at Section III(C) (i)-(v). Therefore, summary adjudication should be granted here as well. Similarly, Summary Adjudication of Plaintiff’s 14th cause of action for unlawful, unfair and fraudulent business practices in violation of California Business& Professions Code § 17200 and §17203 should be granted because Plaintiff has failed to establish all the elements of any of his causes of action. IV. CONCLUSION After multiple years of discovery, Plaintiff has failed to find any reasonable evidence that supports the causes of action alleged in his complaint. Therefore, for the reasons set forth above, Defendant should be granted Summary Judgement. Dated: March 22, 2019 _______________________ Sanjiv N. Singh, Esq. Sanjiv N. Singh, APLC Counsel for Defendants