Bruno Silva vs. Select Physical Therapy Holdings, Inc.

Opposition

Cal. Super. - 4th Dist.February 10, 2017

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DENIS & RASI, PC Paul Denis: SBN 279026 Ethan Rasi: SBN 289848 38 Corporate Park Irvine, CA 92606 Tel: (714) 242-4557; Fax: (213) 443-9601 ELECTROMICALLY FILED Superior Court of Califarnia, County of Orange 09/25/2018 at 11:59:00 PM Clerk of the Superior Court By Olga Lopez, Deputy Clerk E-mail: erasi@denisrasilaw.com; pdenis @denisrasilaw.com LAW OFFICE OF ROBERT W. SKRIPKO, JR., PC Robert W. Skripko, Jr.: SBN 151226 38 Corporate Park Irvine, California 92606 Tel: (949) 476-2000; Fax: (949) 476-2007 E-mail: rwskripko@skripkolaw.com Attorneys for Plaintiffs, BRUNO SILVA, JENNA HANSEN HONEYCUTT, and KRISTEN ROSS SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE BRUNO SILVA, an individual; JENNA HANSEN HONEYCUTT, an individual; KRISTEN ROSS, an individual; Plaintiffs, SELECT PHYSICAL THERAPY HOLDINGS, INC., a Pennsylvania corporation; GREGORY JUE, an individual; and DOES 1 through 20 inclusive, Defendants. [UNLIMITED CIVIL] Case No.: 30-2017-00902789-CU-OE-CJC Assigned for All Purposes to: The Hon. Ronald L. Bauer Dept: CX103 PLAINTIFFS’ BRUNO SILVA, JENNA HANSEN HONEYCUTT AND KRISTEN ROSS’S COLLECTIVE OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Complaint Filed: February 10, 2017 Trial Date: November 13, 2018 Hearing Date: October 9, 2018 Time: 9:00 a.m. TO ALL PARTIES HEREIN, THEIR COUNSEL OF RECORD, AND THE HONORABLE COURT: COMES NOW Plaintiffs Bruno Silva, Jena Hansen Honeycutt, and Bruno Silva (“Plaintiffs”) and hereby respectfully submits the following Opposition to Defendants, Select Physical Therapy Holdings, Inc. and Gregory Jue’s Motion for Summary Judgment or, In The Alternative, Summary Adjudication as to the Claims of Plaintiff Kristen Ross in connection with the above-captioned action. PLAINTIFFS’ BRUNO SILVA, JENNA HANSEN HONEYCUTT AND KRISTEN ROSS’S COLLECTIVE OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II. III. Iv. Table of Contents INTRODUCTION. ..ccuuiiuiiuicnissncssecsensesssncssessasssisssessnssssssssssasssasssssssssssssssssasssssssssssssssssssssassssssss 1 STATEMENT OF FACTS AND PROCEDURAL BACKGROUND........cccceruesueeersaecaessaces 4 LEGAL STANDARD ...uuooiiriiiinstinseisnissncssissecssecssessnssssssssssasssessssssessssssssssasssssssssssssssssssssassssssss 3 A. Summary Judgment is Proper Only When There Is No Triable Issue As To Any Material Fact and the Moving Party Is Entitled To a Judgment As a Matter of Law 5 B. The Right To a Jury Trial Embodied in Article I, Section 16 of the California Constitution Is At Stake and the Granting of Such a Motion Should Be Used With Caution, So That It Does Not Become a Substitute for Trial.........cccceeeceeeecercnneecescnnecens 5 C. Opposition Papers Are Liberally Construed and Moving Papers Are Strictly Construed 6 ARGUMENT iccocsusssnsassunasencssssunesessssesssonsns sass eanssssss sess si sies sesss ss ss ss ss sie sms ais sasussss esss 6 A. ISSUE NO. 1: DEFENDANTS’ MOTION FAILS AS THERE ARE TRIABLE ISSUES OF MATERIAL FACT CONCERNING PLAINTIFF’S OVERTIME CLAIM (COUNT 1) 6 1. Plaintiffs Were Not Paid for All Hours They Worked, Including Overtime, Because They were Not Allowed to Record His Actual Hours Worked............... 6 2, Plaintiff is Entitled To 30 Minutes of Overtime for Any Eight Hour Shift In Which They were Required to Work During His Meal Period .........cccccceeeeeuerncvnennns 7 B. ISSUE NO. 2: DEFENDANTS’ MOTION FAILS AS THERE ARE TRIABLE ISSUES OF MATERIAL FACT CONCERNING PLAINTIFF’S MEAL AND REST PERIOD CLAIMS (COUNT 2 AND 3) .cccesssescussssossossssssssssassnsrossnsssssessnssonssssnasonssassnssssse 8 1. Plaintiffs Were Consistently Required to Work During Meal and Rest Periods 8 C. ISSUE NO. 3: DEFENDANTS’ MOTION FAILS AS THERE ARE TRIABLE ISSUES OF MATERIAL FACT CONCERNING PLAINTIFF'S CLAIM FOR DEFENDANTS’ FAILURE TO PROVIDE ACCURATE, ITEMIZED WAGE -1i- PLAINTIFFS’ BRUNO SILVA, JENNA HANSEN HONEYCUTT AND KRISTEN ROSS’S COLLECTIVE OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STATEMENTS (COUNT 4) cssassssssssssnsenssussusssssssnsussssusnsnsusussnsussasssssmssssasonsanesassssssasassanssnsns 10 1. Defendants Have Not Met Their burden that Plaintiff’s Claims for Overtime and Failure to Provide Meal and Rest Periods Fail as a Matter of Law, Rendering Plaintiff’s Labor Code §226 Claim a Valid Derivative Claim ............ccceceeeuernnee 10 2, Plaintiff “Suffered an Injury’ Associated With The Wage Statements Issued by Defendants, Pursuant to Labor Code § 226, As Revised on January 1, 2016.....12 D. ISSUE NO. 4: DEFENDANTS’ MOTION FAILS AS TO PLAINTIFF’S CLAIM FOR WAITING TIME PENALTIES (COUNT 5)....ccecceseesuncnnens 12 1. Defendants Have Not Met Their burden that Plaintiff’s Claims for Overtime and Failure to Provide Meal and Rest Periods Fail as a Matter of Law, Rendering Plaintiff’s Labor Code §203 Claim a Valid Derivative Claim ........cc.ccceeeeeuernnees 13 2, Defendants Willfully Violated Labor Code § 203 By Requiring Plaintiff to Falsify Time Records and Refuse to Pay Meal and Rest Period Premiums .....13 E. ISSUE NO. 5: DEFENDANTS’ MOTION FAILS AS THERE ARE TRIABLE ISSUES OF MATERIAL FACT CONCERNING PLAINTIFF'S CLAIM FOR DEFENDANTS’ FAILURE TO REIMBURSE BUSINESS EXPENSES (COUNT 6)....... 14 1. Plaintiffs Were Required to Use His Personal Cellphone In The Discharge of His Duties To Defendants ..........c.ccouicnviicceinsncssncssnisssissnsssansssssssssssssssssssssssssss 14 F. ISSUE NO. 6: DEFENDANTS’ MOTION FAILS AS TO PLAINTIFF’S CLAIM FOR CONVERSION (COUNT 7) cucccceecsersuecssessncssesecsansascsssssacssenes 14 1. Defendants Misstate The Elements Conversion, Excluding the Alternative Element 2: “[preventing [name of plaintiff] from having access to the [insert item af personal PrOPErLY [swessssonssesssnsasssssnsvevensvasssssssyasss sss sms sss assm mmm vss vaseaay 14 2. Plaintiff’s Conversion Claim is Supported by the California Supreme Court’s Determination that the Labor Code Does Not Provide the Exclusive Remedies for Unpaid Wages 15 G. ISSUE NO. 7: DEFENDANTS’ MOTION FAILS AS TO PLAINTIFF’S CLAIMS AGAINST GREGORY JUE INDIVIDUALLY ....ccceeceeerunccnrranne 16 -iii- PLAINTIFFS’ BRUNO SILVA, JENNA HANSEN HONEYCUTT AND KRISTEN ROSS’S COLLECTIVE OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1. Defendants Misstate California Law as to Individual Corporate Agent’s Liability for Acts Committed Within the Scope of Employment by Failing to Address Corporate Agent’s Liability Under Labor Code § 558.1.......ccccceeeeenrnncensanccssanccssenes 16 -iv- PLAINTIFFS’ BRUNO SILVA, JENNA HANSEN HONEYCUTT AND KRISTEN ROSS’S COLLECTIVE OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES CASES City of Oceanside v. Superior Court (2000) 81 Cal. App.4th 269.......cccoevviiiniinniiiinieieiee 7 Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826 .......coovuiiiiiiiiiiiiiiiiieeeeeee c c 6 Augustus v. ABM Sec. Serv, Ing. (2016), 2 Cal. Sth 257 cosasamenmmsasmammmesomss oman as 9,10 Bahl v. Bank of America (2001) 89 Cal.App.4th 389 ....ccoiiiiiie ee 7 Brinker Restaurant Corp. v. Super. Ct.(2012) 53 Cal.4™ 1004 .......c.oeveeeeeeeeeeeeeeeeeeeeeeeeeeee, 10 Brown v. Crown Gold Milling Co.(1907), 150 Cal. 376 .......ccooeuiiiieeiieee ects 15 Cortez v. Purolator Air Filtration Prods. Co.(2000), 23 Cal. 4th 163 .........cccovvvveeiiieeeieiiirreenee. 14 Jaimez v. DAIOHS USA, Inc., 181 Cal. App. 4th 1285 o.oo 1 Laabs v. Southern California Edison Co. (2009) 175 Cal. App. 4th 1260........ccccceevvviivniiinnnennnnn 6 Lubin v. The Wackenhut Corp. (2016) 5 Cal. App.5th 926 .......ccoviiiiiiiiiiiiiiiieneeeeeee 2,12 Lushbaugh v. Home Depo U.S.A., Inc. (2001) 93 Cal.App.4th 1159 ....cccccvviiiiiniiiiiiiiieeeieee 6 Martinez v. Combs (2010), 49 Cal.dth 35.....oueeiiiiiiiiiieeeee cece 2,14, 16 Moilkeo v. Holy Spirit Assi. (1988) 46 Cal 3d 1092 ceases sesame avsmossumonss sosuevsssmswessvsumnss 7 Oates v. City of Lincoln (2001) 93 Cal. APP.4Ath 25 o.oo eee 7 Price v. Starbucks Corp, (2011) 192 Cal. App: 4th 1136. mswnsasssmnmsmnmasemnsnsmosssmmresnsmssssnmass 1 Rojo v. Kliger (1990), 52 Cal. 3d 65 ...c..ooviiiieiiie ters eee ate seers eae 15 Suarez v. Pacific Northstar Mechanical, Inc. (2009) 180 Cal. App. 4th 430.......ccccovviiiviiinnneannnn. 6 White v. Ultramar (1999) 21 C.4th 563 ........oouiiiiiiiieeieee sete se eceee esa es 16, 17 STATUTES CIVIL COE § 3294... eee eee steers eae eb te she stent eee 16, 17 COE CAV. POC. § 437 coe eee eee eee tetera esas eee e ates sees ee ease aa esse esse sess esse eesesennanes 6 Labor Code § 1193.6... eee eee eee eee 2,16 Labor COE § 1194... eee eee eee eee eee eet eee ee ee etter sees se ee tester es esse sesearnnen ees 2,16 v- PLAINTIFFS’ BRUNO SILVA, JENNA HANSEN HONEYCUTT AND KRISTEN ROSS’S COLLECTIVE OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Labor Code § 226........ccoiiiiiiiiiiiiiiiicc es 2,10, 11, 12, 16 Labor Code § 226.7 ...c.ueiiiieeiieeie eee sects seeeeeeeesreesaeeeeeeeesteesreeseneeeesnee 2,9,10, 16 Labor Code § 2802........cooiiiiiiiiiiiiii cere 2,13, 16 J E21 oY) of oY [IR T 0 J R 7 Labor Code § 558.1 ...cuiiiiiiii ce 2,15, 16 Labor Code §8§ 203.......oe ieee eects eerste ree sere eres 2,4,12,16 LabOT COE § S12... eee eee eee eee eee eee 9 Labor COE § 558. coir ee eee tetera eee e eee t eases sete testes esse serene ees 2,16 vi- PLAINTIFFS’ BRUNO SILVA, JENNA HANSEN HONEYCUTT AND KRISTEN ROSS’S COLLECTIVE OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Defendants SELECT PHYSICAL THERAPY HOLDINGS, INC. (“Defendant Select”), and its managing agent, GREGORY JUE (“Defendant Jue,” hereinafter collectively “Defendants”) have presented this Court with a voluminous paper tiger veiled in the legal guise of a Motion for Summary Judgment/Adjudication. As exposed in detail hereinbelow, Defendants have propped up their specious effort at a procedural blitzkrieg with blatant misrepresentations of the law and their written policies, and a wholesale disregard of an honest recitation of the facts in this case. In short, Defendants” motion is nothing more than thinly veiled act of deception upon this Court. As addressed in detail below, in the course of this litigation, Plaintiffs have both testified at length, and presented significant documentary evidence, attesting to Defendants’ fundamental violations of California labor law. Defendants labor violations include, but are not limited to the following: instructing Plaintiffs to merely document their scheduled hours of work on their time records as opposed to the hours they actually worked; instructing Plaintiffs to record a meal break whether or not they actually took one; as well as permitting the clientele they service (ex. Disney) to require Plaintiffs to carry and respond to calls on the company issued “walkie-talkie” (two way radio) during all meal and rest breaks. Defendants conveniently fail to disclose to this Court the extensive testimony they elicited at Plaintiffs’ respective depositions, which attests to Defendants’ unlawful labor practices. Rather than present this Court with an honest recitation of the facts and evidence, Defendants deceptively “cherry pick” and/or take out of context, Plaintiffs’ sworn deposition testimony - in a number of occasions, outright misstate Plaintiffs’ testimony, all in an obvious attempt to create a fraudulent artifice of evidence to support their claimed entitlement to summary judgment/adjudication. Alas, Defendants acts of deception didn’t stop with the facts; on the contrary, Defendants proceed to misstate and/or omit applicable law (i.e. Labor Code§558.1), cite to outdated/inapplicable cases and statutes (i.e. Labor Code §558), or conveniently fail to identify alternative grounds upon which Plaintiffs predicate their liability claims (e.g. citing only one of the five separate and independent bases for a claim for conversion, i.e. see CACI 2100-Conversion). By way of example, Defendants cite 1 PLAINTIFFS’ BRUNO SILVA, JENNA HANSEN HONEYCUTT AND KRISTEN ROSS’S COLLECTIVE OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 to Price v. Starbucks Corp. (2011) 192 Cal. App. 4th 1136; and Jaimez v. DAIOHS USA, Inc., 181 Cal. App. 4th 1285; as “well-settled precedent’ to argue to this Court that they are entitled to summary judgment on Plaintiffs’ Labor Code § 226 wage statement claim because Plaintiffs did not prove they suffered an “actual injury”. (See MSJ 12:19-24). As this Court is likely aware, over five years ago, in 2013, the California Legislature specifically amended Labor Code § 226 (e) to clarify that no “actual injury” is necessary for an employee to assert a Labor Code §226 claim; rather, the Legislature codified that an injury is deemed to have been suffered when an employer fails to comply with the requirements of Labor Code§226(e) and the employee cannot promptly and easily determine from the wage statement alone, the statutorily required information. See, Labor Code § 226, Lubin v. The Wackenhut Corp. (2016) 5 Cal. App.5th 926, 959. Similarly, arguing against their Market Manager Greg Jue’s individual liability, Defendants cite to Labor Code §558 and Martinez v. Combs (2010)’s analysis of what constitutes a “corporate agents” in determining their liability for unpaid employee wages. Defendants conveniently fail to disclose to the Court that the very next Code §, Labor Code § 558.1, which came into effect over two and a half years ago (January 1, 2016), provides for corporate agent liability for “other person[s] acting on behalf of an employer” who violate or cause to be violated any provision regulating minimum wages or hours and days of work in any IWC Wage Order or who violates Labor Code §§ 203, 226, 226.7, 1193.6, 1194, or 2802. Defendants again misrepresent the law to this Court by boldly and falsely proclaiming that the “only exception to this well-settled law” is the “alter ego” theory. (MSJ 18:17-8, 19:1-2). Defendants employ similarly deceptive efforts by intentionally misrepresenting their purported “robust” written labor policies to this Court by conflating their facially invalid written policies regarding meal and rest periods, with a subsequent and inapplicable revised policy which was implemented AFTER Plaintiffs Silva and Hansen Honeycutt had already left Defendants’ employ. MSJ 6:7-10. In fact, the relevant written policy regarding meal periods, in effect for the entire duration of Plaintiffs Silva and Hansen Honeycutt’s respective employment with Defendants, did not provide for any meal period premium whatsoever for missed meal periods (on the contrary, in contrast to the 2 PLAINTIFFS’ BRUNO SILVA, JENNA HANSEN HONEYCUTT AND KRISTEN ROSS’S COLLECTIVE OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 statutory mandates of California Labor Code §226.7, Defendants’ written policy awarded an employee who was not provided an earned meal with a later meal period or payment of 30 minutes of time, at Defendants’ election. Further, Defendants’ original unlawful written policy regarding meal periods conveniently failed to advise Plaintiffs of their entitlement to a meal periods before the end of the fifth hour, as required by California Labor Code §512. The records produced by Defendants reflect that they never paid Plaintiff Ross a single meal or rest period premium despite his over 5 years of employment with Defendants. (Defendants’ Appendix, Ex. L) In fact, it was not until almost a year after the filing of Plaintiffs’ lawsuit, that Defendants finally issued a revised written policy which provided for meal and rest period premiums and properly addressed the timing of meal and rest periods. SUMF 34, 35, 36. By reference to their Motion for Summary Judgment, Defendants would have the Court erroneously believe that they always provided a meal and rest period premium, based on the latter revised written policy, but are betrayed by their own “Meal Break Authorization Form,” submitted in support of the MSJ, which states in pertinent part: Kronos timekeeping system is programmed to automatically deduct up to two 30-minute meal breaks per day, one after 6 hours and another after 14 14 hours on the clock. [...] In the event I do work through my lunch, it is my responsibility to notify management and submit an approved Time Clock Adjustment form fo account for the time worked. [emphasis added] MSJ, Ex. C-1, “Meal Break Authorization Form” Defendants’ policy further clarifies that “if any portion of the meal break is interrupted by work responsibilities, the entire 30 minutes of the period will be paid or the employee is given another uninterrupted 30 minutes for a meal break.” Ibid. Defendants’ applicable written rest period policy equally fails to comply with California law. Defendants attempt to mislead the Court by deliberately excluding egregiously unlawful portions of their written rest period policy from the record. Defendants’ motion fails to quote the underlined sections below: POLICY: Employees do not automatically receive rest breaks. When time allows and the breaks will not disrupt staffing, patient care or operations, an employee may take up to one 15-minute rest period for each 4 hours of time worked. [...] Since breaks [Breaks/Rest Periods] are considered work time, employees must comply with standards of professionalism required of all employees while they are at work. 3 PLAINTIFFS’ BRUNO SILVA, JENNA HANSEN HONEYCUTT AND KRISTEN ROSS’S COLLECTIVE OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Employees generally remain on the premises™ during breaks. Should the employee choose to leave the premises during a break, the employee must swipe out regardless of how long they are gone. As detailed hereinbelow, Defendants’ motion is replete with arguments which misrepresent the facts and/or legal support, overstate positions, and deliberately ignore any evidence/authority contrary to Defendants’ effort at securing summary judgment. The nature and extent of Defendants’ flagrant misrepresentations is so pervasive as to negate any possible defense of “inadvertence” or “mistake.” Defendants seem to believe that the Court, confronted with a “mountain” of paper, will fail to see the truth - that Defendants cannot meet their burden of proof to establish the absence of a triable issue of material fact, and that they testimony their counsel elicited at Plaintiffs’ respective depositions, along with Defendants’ own records and policies, establish not only the existence of triable issues of material fact for the trier of fact to adjudicate, but that Plaintiffs are more likely than not to prevail on the causes of action at issue in this lawsuit. II. STATEMENT OF FACTS AND PROCEDURAL BACKGROUND Plaintiff SILVA (“Plaintiff Silva”) filed the instant action against Defendants SELECT PHYSICAL THERAPY HOLDINGS, INC. (“Defendant Select”), GREGORY JUE (“Defendant Jue,” hereinafter collectively “Defendants”) on February 10, 2017, alleging among other things, Defendants’: 1) Failure to Pay Overtime Wages; 2) Failure to Provide Meal Periods or Compensation in Lieu Thereof; 3) Failure to Provide Rest Periods or Compensation in Lieu Thereof; 4) Failure to Provide Accurate, Itemized Wage Statements; 5) Waiting Time Penalties Pursuant to Labor Code § 203; 6) Failure to Reimburse Business Expenses; and 7) Conversion. Defendants erroneously assert that Plaintiffs’ seven causes of action against Defendants cannot proceed because: 1) Documentary and testimonial evidence “irrefutably” disproves Plaintiff’s assertions, and 2) Claims against Defendant Greg Jue are barred because they is an individual supervisor. Plaintiff Ross was employed by Defendants as an athletic trainer from November 2011 to April 2018. (SUMF 44, 45; Plaintiffs’ Appendix, Ex. 3, Ross Depo., pg. 134, lines 20-23). During his employment with Defendants in California, Plaintiffs were assigned to work onsite and off-site at 4 PLAINTIFFS’ BRUNO SILVA, JENNA HANSEN HONEYCUTT AND KRISTEN ROSS’S COLLECTIVE OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Disneyland. (Plaintiffs Appendix, Ex. 3, Ross Depo., pg. 141, lines 6-10; pg. 155, lines 12-18) Plaintiff Silva was employed by Defendants as an athletic trainer from April 2014 to February 2016. SUMF 44 — 63 During his employment with Defendants, Plaintiff Silva was assigned to work at Los Angeles Kiss Football for part of the year, while being assigned to work at Disneyland for the rest of the year. As detailed below, throughout Plaintiffs’ respective employment with Defendants, Plaintiffs Were subjected to Defendants’ violations of California labor law, in general, and the California Labor Code, and applicable Industrial Welfare Commission Wage Order, in particular. III. LEGAL STANDARD A. Summary Judgment is Proper Only When There Is No Triable Issue As To Any Material Fact and the Moving Party Is Entitled To a Judgment As a Matter of Law Summary judgment or summary adjudication is proper only when there is no triable issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Code Civ. Proc. § 437c¢(c); Code Civ. Proc. § 437¢(f)(2). “From commencement to conclusion, the moving party defendant bears the burden of persuasion that there is no triable issue of material fact and that the defendant is entitled to judgment as a matter of law.” Laabs v. Southern California Edison Co. (2009) 175 Cal. App. 4th 1260, 1268-69. A defendant moving for summary judgment must “present evidence, and not simply point out that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 854. “Summary judgment is a drastic remedy to be used sparingly, and any doubts about the propriety of summary judgment must be resolved in favor of the opposing party.” Suarez v. Pacific Northstar Mechanical, Inc. (2009) 180 Cal. App. 4th 430, 436. B. The Right To a Jury Trial Embodied in Article I, Section 16 of the California Constitution Is At Stake and the Granting of Such a Motion Should Be Used With Caution, So That It Does Not Become a Substitute for Trial Summary judgment is considered a drastic procedure because it denies the opposing party the right to trial, and therefore, it should be used with caution. Lushbaugh v. Home Depo U.S.A., Inc. 5 PLAINTIFFS’ BRUNO SILVA, JENNA HANSEN HONEYCUTT AND KRISTEN ROSS’S COLLECTIVE OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (2001) 93 Cal.App.4th 1159, 1164. All doubts as to whether any material triable issues of fact exist are to be resolved in favor of the party opposing summary judgment. Oates v. City of Lincoln (2001) 93 Cal.App.4th 25, 30. The granting of summary judgment is a drastic matter that deprives the losing party of a trial on the merits. Bahl v. Bank of America (2001) 89 Cal. App.4th 389, 395; Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107. C. Opposition Papers Are Liberally Construed and Moving Papers Are Strictly Construed The moving party’s papers are strictly construed, while the opposing party’s are liberally construed. Any doubts as to the propriety of granting the motion should be resolved against the moving party. City of Oceanside v. Superior Court (2000) 81 Cal.App.4th 269, 273. IV. ARGUMENT A. ISSUE NO. 1: DEFENDANTS’ MOTION FAILS AS THERE ARE TRIABLE ISSUES OF MATERIAL FACT CONCERNING PLAINTIFF'S OVERTIME CLAIM (COUNT 1) Under Labor Code § 510, employees are entitled to one and one-half times their regular rate when they work more than eight hours in a single day, more than forty hours in a workweek, or during the first eight hours of the seventh straight day of a single workweek. Labor Code § 510; IWC Wage Order. 1. Plaintiffs Were Not Paid for All Hours They Worked, Including Overtime, Because They were Not Allowed to Record His Actual Hours Worked Defendants boldly assert that Plaintiff’s claim for overtime fails because they completed their own time sheets, were paid overtime on 31 occasions, and that they reported “every” discrepancy. This is a flagrant misrepresentation of Plaintiff’s testimony and Defendants’ own records. Def. MSJ 8:9-23. Defendants fail to cite Plaintiff’s sworn deposition testimony expressly contradicting and/or clarifying Defendant’s “cherry-picked” excerpts, or outright misstatements of Plaintiff’s testimony. Defendants’ assertion that they were paid overtime on 31 occasions, therefore their claim for 6 PLAINTIFFS’ BRUNO SILVA, JENNA HANSEN HONEYCUTT AND KRISTEN ROSS’S COLLECTIVE OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 overtime fails, is directly refuted by Plaintiffs sworn deposition testimony. Plaintiff credibly testifies that they were specifically instructed by Select management, Defendant Jue, to NOT record his actual hours worked on his time records; rather, they were to document only his scheduled hours of work. (Plaintiffs’ Appendix., Ex. 3, Ross Depo., pg. 57, line 3-12; pg. 58, lines 2-25; pg. 114, lines 19-25; pg. 115, lines 13-20) 66:14-17, 67:1-2), (Honeycutt Depo. Pg. 101, lines 2-5; pg. 102, lines 4-7; pg. 106, lines 17-22) Plaintiffs’ Appendix, Ex. 1, Silva Depo. Tr. 66:14-17, 67:1-2; Defendants management personnel instructed him to not record his actual hours worked—which exceeded 8 hours a day and/or 40 hours weekly on occasion—and instead was instructed by Defendant Jue to record his scheduled hours. (Plaintiffs Appendix., Ex. 3, Ross Depo., pg. 57, line 3-12; pg. 58, lines 2-25; pg. 114, lines 19- 25; pg. 115, lines 13-20)(Silva Depo at 61:15-16; 118:8-10, 21-25; 119:1-4, 14-20) (Honeycutt Depo., pg. 30, lines 22-25; pg. 31, lines 1-4; pg. 96, lines 4-10; pg. 98, lines 16-20.) 2. Plaintiff is Entitled To 30 Minutes of Overtime for Any Eight Hour Shift In Which They were Required to Work During His Meal Period Plaintiff testified that Defendants’ managing agents, Defendant Greg Jue, Mike Montez, and Tyson Allies instructed him to write down meal periods as having been taken in the middle of his shift and, as such, not paid wages or otherwise compensated for said time, even though very common for him not to be provided the opportunity to take the meal period to which they were statutorily entitled. (Plaintiffs’ Appendix., Ex. 3, Ross Depo., pg. 71, lines 13-25; pg. 72, lines, 1-21; pg. 73, 14-25; pg. 74, lines 1-14; pg. 75, lines 18-25; pg. 76, lines 4-13, lines 21-25; pg. 1-25; pg. 78, line 1; pg. 78, lines 5-19; pg. 98, line 25; pg. 99, lines 1-3)( Silva Depo. Tr. 206:19-25, 207:1-7; SUMF 55) (Honeycutt Depo pg. 31, lines 10-22; pg. 32, lines 11-25; pg.46, lines 14-17; pg.63, lines 18-25; pg. 64, lines 1-9; pg. 74, lines 21-25; pg. 75, lines 1-8; pg. 76, lines 1-14; pg. 79, lines 2-18 (specifically about being told not to take lunch); pg. 86, lines 1-13 and 21-25; pg. 87, lines 1-7 and 21-25; pg. 88, lines 1-4 (complaining about not receiving a lunch); pg. 89, lines 19-25; pg. 90, lines 1-6 (other employees complaining); pg. 109, lines 15-22. Even when they had the opportunity to grab something to eat, Plaintiffs were not relieved of all job duties as they were required by SPT management to have a radio on hand to receive notifications and be dispatched during said periods. Plaintiffs’ Appendix, Ex. 3, Ross Depo., pg. 72, lines 7 PLAINTIFFS’ BRUNO SILVA, JENNA HANSEN HONEYCUTT AND KRISTEN ROSS’S COLLECTIVE OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5-21; pg. 85, lines 3-25; pg. 105, lines 10-16; pg. 144, lines 7-22; pg. 145, lines 7-14). Defendants’ assertion that Plaintiff’s claim for overtime fails because they supposedly completed his own time sheets, was paid overtime on 31 occasions, and had reported “every” discrepancy is a flagrant misstatement of Plaintiff’s sworn deposition testimony and Defendants’ own records. Def. MSJ 8:9-23. Defendants fail to cite Plaintiff’s testimony expressly contradicting and/or clarifying their “cherry- picked” citations, or outright misstate Plaintiff’s testimony. B. ISSUE NO. 2: DEFENDANTS’ MOTION FAILS AS THERE ARE TRIABLE ISSUES OF MATERIAL FACT CONCERNING PLAINTIFF'S MEAL AND REST PERIOD CLAIMS (COUNT 2 AND 3) Labor Code § 512 prohibits employers from, “employ[ing] an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than 30 minutes, except that fi the total work period per day of the employee is no more than six hours, the meal period may be waived by mutual consent of both the employer and the employee. An employer may not employee an employee for a work period of more than 10 hours per day without providing the employee with a second meal period of not less than 30 minutes, except that if the total hours worked is no more than 12 hours, the second meal period may be waived by mutual consent of the employer and the employee only if the first meal period was not waived.” Labor Code § 226.7 provides, “An employer shall not require an employee to work during a meal or rest or recovery period mandated pursuant to applicable statute, or applicable regulation, standard or order of the Industrial Welfare Commission....” And “If an employer fails to provide an employee a meal or rest or recovery period in accordance with state law..., the employer shall pay the employee one additional hour of pay at the employee’s regular rate of compensation for each workday that a meal or rest or recovery period is not provided.” 1. Plaintiffs Were Consistently Required to Work During Meal and Rest Periods Defendants’ recite the Brinker standard to stand for the proposition that they need not police or ensure employees take meal breaks. Def. MSJ 11:4-16. However, Defendants interestingly cite to 8 PLAINTIFFS’ BRUNO SILVA, JENNA HANSEN HONEYCUTT AND KRISTEN ROSS’S COLLECTIVE OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Augustus v. ABM Sec. Servs., Inc. (2016), 2 Cal. 5th 257, without addressing its main holding, which is directly applicable to Plaintiff's claim for meal and rest period violations in this case. (Ibid. See also Augustus at 269.) In analyzing an employer’s obligation to provide lawful meal and rest periods, Augustus specifically addressed the issue of employer control during meal and rest periods in the context of guards required to carry and respond by two-way radios during meal and rest breaks. (Id. at 261). There, the court held, “one cannot square the practice of compelling employees to remain at the ready, tethered by time and policy to particular locations or communications devices, with the requirement to relieve employees of all work duties and employer control during 10-minute rest periods.” (Id. At 269.) “In the context of a 10-minute break that employers must provide during the work period, a broad and intrusive degree of control exists when an employer requires employees to remain on call and respond during breaks.” (Id. at 270). Moreover, Labor Code § 226.7’s prohibition applies in identical fashion to meal and rest periods, with its premium-pay remedy (§ 226.7, subd. (b)) triggered by the failure to provide either. We have explained that during meal periods, employers must “relieve the employee of all duty and relinquish any employer control over the employee and how they or she spends the time.” (Brinker Restaurant Corp. v. Super. Ct.(2012) 53 Cal.4™ 1004, 1038-1039.) Plaintiff has provided sworn deposition testimony that while working at the Disney assignment, they were required to carry a two-way radio with him during all meal and rest periods in order to receive notifications and be dispatched during said period. (Plaintiffs Appendix., Ex. 3, Ross Depo., pg. 72, lines 5-21; pg. 85, lines 3-25; pg. 105, lines 10-16; pg. 144, lines 7-22; pg. 145, lines 7-14) Further, it was very common for Defendants to not permit Plaintiffs the opportunity to take the rest period to which they were statutorily entitled. (Plaintiffs’ Appendix, Ex. 3, Ross Depo., pg. 80, lines 1-25; pg. 81, lines 1-4; pg. 84, lines 17-24; pg. 142, lines 10-23) Plaintiffs was instructed by SPT Management that they would neither get, nor to take, rest breaks. (Plaintiffs’ Appendix, Ex. 3, Ross Depo. pg. 81, lines 12-22; pg. 84, lines 8-16; pg. 104, lines 8-13) In the five years Plaintiffs were employed by SPT, there was not a single instance where they received rest period or meal period Labor Code § 226.7 premium pay. (See, Defs’ Appendix to MSJ, Ex. “L” para. ) Plaintiff Ross repeatedly 9 PLAINTIFFS’ BRUNO SILVA, JENNA HANSEN HONEYCUTT AND KRISTEN ROSS’S COLLECTIVE OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 complained to SPT management about not being permitted to take his earned rest periods and was retaliated against for speaking up. (pg. 82, lines 4-19; pg. 90, lines 13-25; pg. 91, lines 1-16; pg. 92, lines 1-25; pg. 93, lines 12-19) C. ISSUE NO. 3: DEFENDANTS’ MOTION FAILS AS THERE ARE TRIABLE ISSUES OF MATERIAL FACT CONCERNING PLAINTIFF’S CLAIM FOR DEFENDANTS’ FAILURE TO PROVIDE ACCURATE, ITEMIZED WAGE STATEMENTS (COUNT 4) Labor Code § 226 (a) requires that each wage statement of non-exempt employees show (1) gross wages earned; (2) total hours worked by the employee; (3) the number of piece-rate units earned (for piece-rate workers); (4) all deductions taken; (5) net wages earned;230 (6) the inclusive dates of the period for which the employee is paid; (7) the name of the employee and either the last four digits of the employee’s social security number or the employee ID number;231 (8) the name and address of the employer; and (9) all applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate. In January 1, 2013, the Legislature amended Labor Code § 226 to clarify the definition of “injury” for purposes of certain violations of the statute. An employee now is deemed to suffer injury if (A) the employer fails to provide a wage statement or (B) fails to provide accurate and complete information and the employee cannot promptly, without reference to other documents or information, determine the following from the wage statement alone: (1) gross or net wages paid during the pay period, (2) total hours worked, (3) piece-rate units earned and rate, (4) deductions, (5) pay period, (6) hourly rates and corresponding hours worked at each rates, (7) the employer’s name and address, (8) the employee’s name, and (9) the employee’s last 4 digits (only) of his or her social security number or employee identification number. Following this amendment, an employer can no longer argue that employees must individually demonstrate that they suffered actual injury resulting from a violation of Labor Code § 226(a). 1. Defendants Have Not Met Their burden that Plaintiff’s Claims for Overtime and Failure to Provide Meal and Rest Periods Fail as a Matter of Law, 10 PLAINTIFFS’ BRUNO SILVA, JENNA HANSEN HONEYCUTT AND KRISTEN ROSS’S COLLECTIVE OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Rendering Plaintiff’s Labor Code §226 Claim a Valid Derivative Claim Defendants argue that Plaintiff’s wage statement claim under Labor Code §226 fails because Defendants have somehow conclusively demonstrated that they (1) correctly calculated and paid overtime wages in accordance with California law, and (2) complied with its obligation to make available rest and meal periods. As the sworn deposition testimony excerpted below attests, Plaintiff credibly testified that it was a common occurrence that they were not permitted to take and/or not provided his earned rest/meal periods, and/or had his rest/meal periods interrupted. (Plaintiffs’ Appendix, Ex. 3, Ross Depo., pg. 71, lines 13-25; pg. 72, lines, 1-21; pg. 73, 14-25; pg. 74, lines 1-14; pg. 75, lines 18-25; pg. 76, lines 4-13, lines 21-25; pg. 1-25; pg. 78, line 1; pg. 78, lines 5-19; pg. 98, line 25; pg. 99, lines 1-3) Even when they had the opportunity to grab something to eat, Plaintiffs were not relieved of all job duties as they were required by SPT management to have a radio on hand to receive notifications and be dispatched during said period. (Plaintiffs’ Appendix, Ex. 3, Ross Depo., pg. 72, lines 5-21; pg. 85, lines 3-25; pg. 105, lines 10-16; pg. 144, lines 7-22; pg. 145, lines 7-14) Further, it was very common for Defendants to not permit Plaintiff Ross the opportunity to take the rest period to which they were statutorily entitled. (Plaintiffs’ Appendix, Ex. 3, Ross Depo., pg. 80, lines 1-25; pg. 81, lines 1-4; pg. 84, lines 17-24; pg. 142, lines 10-23) Plaintiffs were instructed by SPT Management that they would neither get, nor to take, rest breaks. (Plaintiffs’ Appendix, Ex. 3, Ross Depo. pg. 81, lines 12-22; pg. 84, lines 8-16; pg. 104, lines 8-13) In the five years Plaintiffs were employed by SPT, there was not a single instance where they received rest period or meal period Labor Code § 226.7 premium pay. (See, Defs’ Appendix to MSJ, Ex. “L”) Plaintiff Ross repeatedly complained to SPT management about not being permitted to take his earned rest periods and was retaliated against for speaking up. (pg. 82, lines 4-19; pg. 90, lines 13-25; pg. 91, lines 1-16; pg. 92, lines 1-25; pg. 93, lines 12-19) As a result, during eight hour shifts while assigned to Disney, Plaintiff is entitled to 30 minutes of overtime for having worked through his meal period, which was not compensated because Defendants required Plaintiff fill in a 30 minute meal period on time records despite not receiving them. Plaintiffs were instructed by SPT management personnel to falsify his time. (Plaintiffs’ Appendix., Ex. 3, Ross Depo., pg. 71, lines 13-25; pg. 72, lines, 1-21; pg. 73, 14-25; pg. 74, lines 1-14; 11 PLAINTIFFS’ BRUNO SILVA, JENNA HANSEN HONEYCUTT AND KRISTEN ROSS’S COLLECTIVE OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 pg. 75, lines 18-25; pg. 76, lines 4-13, lines 21-25; pg. 77, lines 1-25; pg. 78, line 1; pg. 78, lines 5-19; pg. 98, line 25; pg. 99, lines 1-3) 2. Plaintiff “Suffered an Injury’ Associated With The Wage Statements Issued by Defendants, Pursuant to Labor Code § 226, As Revised on January 1, 2016 Defendants’ argument that Plaintiff’s wage statement claim fails because it is “speculative” is founded on the outdated Labor Code §226 language, and the corresponding cases analyzing said language. (Def. MSJ 12:17-24, 13:1-11). In particular, Labor Code §226(¢e) was amended on January 1, 2016 to clarify that no “actual injury” is necessary to have standing to assert a Labor Code §226 violation; rather, an injury is deemed to be suffered if the employer fails to comply with the requirements of subsection (e) and an employee cannot promptly and easily determine from the wage statement alone the information required. Labor Code § 226, Lubin v. The Wackenhut Corp. (2016) 5 Cal. App.5th 926, 959. Plaintiff Ross provided sworn testimony that they were instructed by SPT management personnel to input, as well as fill in handwritten time cards, his scheduled hours of work — NOT his actual hours worked. There were instances were Plaintiffs were instructed by SPT management personnel not to record overtime worked. (Plaintiffs’ Appendix, Ex. 3, Ross Depo., pg. 57, line 3-12; pg. 58, lines 2-25; pg. 114, lines 19-25; pg. 115, lines 13-20) On the contrary, Plaintiffs were instructed by SPT management personnel to falsify his time. (Plaintiffs Appendix, Ex. 3, Ross Depo. pg. 77, lines 2-24; pg. 78, lines 1-19) In particular, they were instructed by SPT management personnel to write down meal periods as having been taken in the middle of his shift and, as such, not paid wages or otherwise compensated for said time, even though very common for him not to be provided the opportunity to take the meal period to which they were statutorily entitled. (Plaintiffs’ Appendix, Ex. 3, Ross Depo., pg. 71, lines 13-25; pg. 72, lines, 1- 21; pg. 73, 14-25; pg. 74, lines 1-14; pg. 75, lines 18-25; pg. 76, lines 4-13, lines 21-25; pg. 1-25; pg. 78, line 1; pg. 78, lines 5-19; pg. 98, line 25; pg. 99, lines 1-3) D. ISSUE NO. 4: DEFENDANTS’ MOTION FAILS AS TO PLAINTIFF'S CLAIM 12 PLAINTIFFS’ BRUNO SILVA, JENNA HANSEN HONEYCUTT AND KRISTEN ROSS’S COLLECTIVE OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FOR WAITING TIME PENALTIES (COUNT 5) 1. Defendants Have Not Met Their burden that Plaintiff’s Claims for Overtime and Failure to Provide Meal and Rest Periods Fail as a Matter of Law, Rendering Plaintiff’s Labor Code §203 Claim a Valid Derivative Claim Plaintiff credibly testifies that they consistently worked more hours than they were allowed to record on his time records, regularly failed to receive a lawful meal and rest period, and did not receive any meal or rest period premiums. (Plaintiffs’ Appendix, Ex. 3, Ross Depo., pg. 57, line 3-12; pg. 58, lines 2-25; pg. 71, lines 13-25; pg. 72, lines, 1-21; pg. 73, 14-25; pg. 74, lines 1-14; pg. 75, lines 18- 25; pg. 76, lines 4-13, pg. 77, lines 2-25; pg. 78, lines 1-19; pg. 98, line 25; pg. 99, lines 1-3; pg. 114, lines 19-25; pg. 115, lines 13-20) Defendants’ assertion that Plaintiff did not have any evidence to support this claim is a flagrant misrepresentation of Plaintiff’s testimony. 2, Defendants Willfully Violated Labor Code § 203 By Requiring Plaintiff to Falsify Time Records and Refuse to Pay Meal and Rest Period Premiums Defendants’ facially invalid meal and rest period policies, coupled with the unlawful practice of requiring employees to falsify time records, cannot shelter Defendants from liability under Labor Code §203. Defendants cannot allege there was a “good faith mistake” in their obligations to provide meal periods before the end of the 5" hour, their obligation to relieve Plaintiff of all duties during his breaks, or upon notice that Plaintiff did not receive a meal or rest period, not pay Plaintiff for time worked AND one hour of premium pay. (Plaintiffs’ Appendix., Ex. 3, Ross Depo. (Plaintiffs’ Appendix, Ex. 3, Ross Depo., pg. 57, line 3-12; pg. 58, lines 2-25; pg. 114, lines 19-25; pg. 115, lines 13-20) On the contrary, Plaintiffs were instructed by SPT management personnel to falsify his time. (Plaintiffs Appendix, Ex. 3, Ross Depo. pg. 77, lines 2-24; pg. 78, lines 1-19) In particular, they were instructed by SPT management personnel to write down meal periods as having been taken in the middle of his shift and, as such, not paid wages or otherwise compensated for said time, even though very common for him not to be provided the opportunity to take the meal period to which they were statutorily entitled. (Plaintiffs Appendix, Ex. 3, Ross Depo., pg. 71, lines 13-25; pg. 72, lines, 1-21; pg. 73, 14-25; pg. 74, lines 1-14; pg. 75, lines 18-25; pg. 76, lines 4-13, lines 21-25; pg. 1-25; pg. 78, line 1; pg. 78, lines 5-19; 13 PLAINTIFFS’ BRUNO SILVA, JENNA HANSEN HONEYCUTT AND KRISTEN ROSS’S COLLECTIVE OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 pg. 98, line 25; pg. 99, lines 1-3) Plaintiff credibly testifies that they consistently worked more hours than they were allowed to record on his time records, regularly failed to receive a lawful meal and rest period, and did not receive any meal or rest period premiums. (Ibid.) As such, there is substantial evidence that Defendants knowingly and intentionally violated Plaintiff’s right to overtime and lawful meal and rest periods. E. ISSUE NO. 5: DEFENDANTS’ MOTION FAILS AS THERE ARE TRIABLE ISSUES OF MATERIAL FACT CONCERNING PLAINTIFF'S CLAIM FOR DEFENDANTS’ FAILURE TO REIMBURSE BUSINESS EXPENSES (COUNT 6) 1. Plaintiffs Were Required to Use His Personal Cellphone In The Discharge of His Duties To Defendants Labor Code § 2802 provides that an employer shall indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer. Plaintiff testify credibly that they required to use his personal cellphone to communicate with athletes, provide athletic training services, and receive directions from Defendant Gregory Jue, in the discharge of his duties for Defendants. (Plaintiffs’ Appendix., Ex. 3, Ross Depo., pg. 86, lines 1-25; pg. 87, lines 1-17; pg. 146, lines 4-20; pg. 147, lines 1-23) F. ISSUE NO. 6: DEFENDANTS’ MOTION FAILS AS TO PLAINTIFF’S CLAIM FOR CONVERSION (COUNT 7) 1. Defendants Misstate The Elements Conversion, Excluding the Alternative Element 2: “[preventing [name of plaintiff] from having access to the [insert item of personal property] Plaintiff need not establish Defendants possessed his personal property to prevail on a claim for conversion. Defendants state that Plaintiff fails to present any facts as to the Defendants’ possession of his property, and so his claim fails as a matter of law (Def. MSJ, 17:10-11). California Civil Jury Instruction (CACI) 2100 — Conversion, enumerates the essential factual elements of conversion, 14 PLAINTIFFS’ BRUNO SILVA, JENNA HANSEN HONEYCUTT AND KRISTEN ROSS’S COLLECTIVE OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 including alternatives to the second element of “possession.” Defendants challenges Plaintiff’s ability to establish that possession second element by misstating the law and conveniently excluding the alternative element 2 applicable to Plaintiff . CACI 2100. However, Plaintiff can also establish this prong of claim by proving that Defendants intentionally and substantially interfered with Plaintiff’s property by: “[preventing [name of plaintiff] from having access to the [insert item of personal property].” CACI 2100, Conversion. 2 Plaintiff’s Conversion Claim is Supported by the California Supreme Court’s Determination that the Labor Code Does Not Provide the Exclusive Remedies for Unpaid Wages The California Supreme Court determined that the Labor Code does not provide the exclusive remedies for unpaid wages. Cortez v. Purolator Air Filtration Prods. Co.(2000), 23 Cal. 4th 163. California established the Industrial Welfare Commission (“IWC”), the entity charged with determining and enforcing a minimum wage, by statute in 1913. Martinez v. Combs (2010), 49 Cal.4th 35, 50. The first minimum wage of $0.16 per hour was established in 1916. Also, in 1913, the California legislature enacted a statute enabling any employee to recover wages due under the minimum wage and overtime laws. Martinez, 49 Cal.4th at 50 (citing Cal. Lab. Code § 1194). Prior to 1913, actions existed to recover unpaid wages and overtime wages at common law. Under the common law, an employee could recover unpaid wages through an action in contract or, if the contract was legally void, in quantum meruit for the value of services rendered. Brown v. Crown Gold Milling Co.(1907), 150 Cal. 376, 383- 84, (discussing actions for breach of an employment contract and actions in quantum meruit for recovery of the value of services rendered in employment). Historically, employees seeking restitution for unlawfully withheld wages have been afforded the opportunity to obtain relief under multiple legal theories including, inter alia, common law actions, breach of contract, quantum meruit and/or violation of the California Business and Professions Code. When enacted, the California Labor Code merely codified employees’ existing rights to the restitution of unlawfully withheld wages. If a right existed at common law, a statutory remedy is generally cumulative, even if the remedy 15 PLAINTIFFS’ BRUNO SILVA, JENNA HANSEN HONEYCUTT AND KRISTEN ROSS’S COLLECTIVE OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 is comprehensive. Rojo v. Kliger (1990), 52 Cal. 3d 65, 79-80. Plaintiff’s wage and hour allegations are not held to the “new right-exclusive remedy” doctrine because: (1) said claims have historically been brought under multiple theories of liability, including conversion; and (2) the applicable California Labor Codes do not create a new right, but rather, codify an existing right—restitution for unlawfully withheld wages. Plaintiff has alleged and provided substantial evidence in support of his claims for unpaid wages, overtime, meal and rest period premiums, and reimbursement for necessary business expenses. G. ISSUE NO. 7: DEFENDANTS’ MOTION FAILS AS TO PLAINTIFF’S CLAIMS AGAINST GREGORY JUE INDIVIDUALLY 1. Defendants Misstate California Law as to Individual Corporate Agent’s Liability for Acts Committed Within the Scope of Employment by Failing to Address Corporate Agent’s Liability Under Labor Code § 558.1 Defendants cite to Martinez v. Combs (2010), as well as Labor Code §558, to erroneously represent to this Court that it is well settled that Defendant Gregory Jue cannot be held personally liable for his acts as a corporate agent, but for the sole exception of the alter ego doctrine. (Def. MSJ, 17:21- 26, 18:17-8, 19:1-2). However, Defendants conveniently fail to disclose to the Court that said case law has been superceded by Labor Code § 558.1, effective January 1, 2016. Labor Code § 558.1 provides in pertinent part, for corporate agent liability for “other person(s] acting on behalf of an employer” who violate or cause to be violated any provision regulating minimum wages or hours and days of work in any IWC Wage Order or who violates Labor Code §§ 203, 226, 226.7, 1193.6, 1194, or 2802, may be held liable as the employer for such violation. Labor Code § 558.1(b) further defines the “other person acting on behalf of an employer” as having the same meaning as “managing agent” in subdivision (b) of Section 3294 of the Civil Code. Under Civil Code § 3294 and case law, “managing agents” are all employees who exercise substantial independent authority and judgment in their corporate decision-making such that their decisions ultimately determine corporate policy. In the seminal case on the issue, White v. Ultramar (1999) 21 C.4th 563, the court deemed a supervisor a “managing agent” under Civil Code § 3294. The 16 PLAINTIFFS’ BRUNO SILVA, JENNA HANSEN HONEYCUTT AND KRISTEN ROSS’S COLLECTIVE OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 supervisor was a “zone manager” responsible for managing 8 stores with at least 65 employees, with other store managers reporting to her, and she, in turn, reported to department heads in defendant's retail management department. (2) [§ 1753]Definition of Managing Agent., 6 Witkin, Summary 11th Torts § 1753 (2018). Under White, the supervisor with these responsibilities was deemed to have substantial discretion in their decision making such that that their decisions ultimately determine corporate policy, rendering her a “managing agent” for purposes of Civil Code § 3294. (See White at 577). Here, Defendants’ own SUMF admits that Defendant Jue is a market manager who oversees and manages the managers and site supervisors of various Select PT locations in the Southern California area, including LA Kiss, Disneyland, Delta at LAX, and primarily, the LA Clinic. (Def. MSJ, SUMF 8-9.) Further, Defendant Jue, also, among other things, manages all employee relations in his defined geographic area of Southern California, and ensures compliance with equitable application of Human Resource Policy and Procedures. (Def. MSJ, SUMF 10.) Defendant Jue effectively oversees and manages an entire geographic region, and in delegating most if not all of the responsibilities for running these assignments, Defendant Jue has substantial discretionary authority over vital aspects of Defendants’ business. Further, Defendant Jue had the authority to limit the hours for which Plaintiff received compensation, and the authority to deny him meal and rest periods, in contravention with California law and public policy. On multiple occasions, Plaintiff Ross complained to Mr. Jue about not being provided his meal periods, yet SPT records do not reflect even one instance of Defendants paying Plaintiff Ross one hour of premium pay in accordance with Labor Code § 226.7. (Plaintiffs’ Appendix, Ex. 3, Ross Depo., pg. 73, lines 14-18, 24-25; pg. 74, lines 1-14; pg. 93, lines 12-22; See, Defs’ Appendix to MSJ, Ex. “L’) Also, on multiple occasions, Plaintiff Ross complained to Mr. Jue about not receiving his pay increases which were then subsequently addressed by SPT. (Plaintiffs’ Appendix, Ex. 3, Ross Depo., pg. 110, lines 8-25) V. CONCLUSION For the foregoing reasons, Plaintiffs Bruno Silva, Jena Hansen Honeycutt, and Bruno Silva (“Plaintiffs”) respectfully requests the Court deny Defendants” Motion for Summary Judgment or, in 17 PLAINTIFFS’ BRUNO SILVA, JENNA HANSEN HONEYCUTT AND KRISTEN ROSS’S COLLECTIVE OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the Alternative, Summary Adjudication with respect to all Plaintiff’s causes of action. Dated: September 25, 2018 DENIS & RASI, PC ow WIL PAUL J. DENIS ETHAN E. RASI Attorneys for Plaintiff BRUNO SILVA, JENNA HANSEN HONEYCUTT, and KRISTEN ROSS 18 PLAINTIFFS’ BRUNO SILVA, JENNA HANSEN HONEYCUTT AND KRISTEN ROSS’S COLLECTIVE OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE I, the undersigned, am employed in the County of Los Angeles, State of California. I am over the age of eighteen years and not a party to the within entitled action. My business address is 38 Corporate Park, Irvine, California 92606. On date set forth below, I served the foregoing documents on the interested parties in this action: PLAINTIFFS’ BRUNO SILVA, JENNA HANSEN HONEYCUTT AND KRISTEN ROSS’S COLLECTIVE OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION; PLAINTIFFS’ BRUNO SILVA, JENNA HANSEN HONEYCUTT AND KRISTEN ROSS’S RESPECTIVE SEPARATE STATEMENTS OF DISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION AS TO THE CLAIMS OF PLAINTIFFS; PLAINTIFFS’ COLLECTIVE APPENDIX OF EXHIBITS DEFENDANTS SELECT PHYSICAL THERAPY HOLDINGS, INC. AND GREGORY JUE TUCKER ELLIS LLP NDUBISI A. EZEOLU SBN 256834 ndubisi.ezeolu @tuckerellis.com EDWARD W. RACEK SBN 235184 edward.racek@tuckerellis.com NICHOLAS V. JANIZEH SBN 307816 nicholas.janizeh @tuckerellis.com 515 South Flower Street Forty-Second Floor Los Angeles, CA 90071-2223 _ MAIL: Tam "readily familiar" with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with U.S. postal service on that same day with postage thereon fully prepaid at Irvine, California in the ordinary course of business. I am aware that, on motion of party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. BY PERSONAL SERVICE: I caused such envelope(s) to be delivered by hand to the office of counsel identified above. BY FACSIMILE TRANSMISSION: From Fax No.: (714) 543-6140 to fax number: as indicated on the attached Mailing List. The facsimile machine I used complied with Rule 2003(3) and no error was reported by the machine. Pursuant to Rule 2005(i), I caused the machine to print a record of the transmission. BY OVERNIGHT MAIL: I caused such envelope(s) to be deposited in a box or other facility regularly maintained by the express service carrier, or delivered to an authorized courier or driver authorized by the express service carrier to receive documents, in an envelope or package designated by the express service carrier with delivery fees paid for or provided for, addressed to the person on whom it is to be served, at the office address as last given by that person on any documented filed in the cause and served on the party making service; otherwise that party’s place of residence. __X_ BY E-MAIL: I caused the above-referenced document to be electronically transmitted to the attorneys referenced above. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on September 25, 2018 in Irvine, California. WOBERT W. SKRIPKO, JR.