Silvia et al v. Verizon Communications, Inc. et al

MOTION for Summary Judgment

N.D. Cal.July 7, 2017

NOTICE OF MOTION, MOTION FOR PARTIAL SUMMARY JUDGMENT AND MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT THEREOF Case No.: 3:15-cv-04677-JSC 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 BRIAN D. BERTOSSA, ESQ. (SBN 138388) STEPHEN R. McCUTCHEON, JR. ESQ. (SBN 191749) COOK BROWN, LLP 2407 J STREET, SECOND FLOOR SACRAMENTO, CALIFORNIA 95816 TELEPHONE NO.: 916-442-3100 FACSIMILE NO.: 916-442-4227 EMAIL: bbertossa@cookbrown.com smccutcheon@cookbrown.com Attorneys for Defendant ENGINEERING ASSOCIATES, LLC UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA – SAN FRANCISCO DIVISION DEBBIE SILVIA, an individual, and JOHN W. VIEIRA, an individual, on their own behalf and in the interest of the general public, Plaintiffs, v. MCI COMMUNICATIONS SERVICES, INC.; VERIZON BUSINESS NETWORK SERVICES, INC.; and ENGINEERING ASSOCIATES, LLC f/k/a ENGINEERING ASSOCIATES, INC. and EA TECHNICAL SERVICES, INC., Defendants. Case No.: 3:15-cv-04677-JSC DEFENDANT ENGINEERING ASSOCIATES, LLC'S NOTICE OF MOTION, MOTION FOR PARTIAL SUMMARY JUDGMENT, AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Accompanying Documents: 1. Request for Judicial Notice 2. Declaration of Brian D. Bertossa 3. Declaration of Tracey Brewer Date: August 17, 2017 Time: 9:00 a.m. Dept.: Courtroom F, 15th Floor Judge: Hon. Jacqueline Scott Corley /// Case 3:15-cv-04677-JSC Document 139 Filed 07/07/17 Page 1 of 11 NOTICE OF MOTION, MOTION FOR PARTIAL SUMMARY JUDGMENT AND MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT THEREOF Case No.: 3:15-cv-04677-JSC 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 TO THE PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE THAT on August 17, 2017 at 9:00 a.m., or as soon thereafter as counsel may be heard, in Courtroom F, 15th Floor, 450 Golden Gate Avenue, San Francisco, California, the Honorable Jacqueline Scott Corley presiding, Engineering Associates, LLC (“EA”) will and does hereby make the following motion: 1. Defendant is entitled to summary judgment on Plaintiffs’ Third Cause of Action on the ground that there was no willful failure to pay wages by EA, and a good faith dispute exists regarding wages, which precludes the imposition of penalties under Labor Code section 203. 2. Defendant is entitled to summary judgment on Plaintiffs’ Fourth Cause of Action on the ground that Plaintiffs cannot seek penalties under Labor Code section 1194.2 as their claim for allegedly unpaid prevailing wages is not a claim for “the payment of a wage less than the minimum wage fixed by an order of the commission or statute” as prevailing wage is not set by the Industrial Welfare Commission or statute, but is instead fixed by the Director of the Department of Industrial Relations based upon collective bargaining agreements entered between construction labor unions and contractors. 3. Defendant is entitled to summary judgment on Plaintiffs’ Fifth Cause of Action for penalties under Labor Code section 203.5 as EA is not a bonding company or surety to which Section 203.5 applies. 4. Defendant is entitled to summary judgment on Plaintiffs’ Eighth Cause of Action on the ground that Plaintiff Silvia failed to exhaust administrative remedies required by the California Fair Employment and Housing Act by filing an administrative charge and obtaining a Right to Sue letter within one year of the alleged act of harassment prior to filing her Complaint herein. 5. Defendant is entitled to summary judgment on Plaintiffs’ Ninth Cause of Action on the ground that Plaintiff Silvia failed to exhaust administrative remedies required by the California Fair Employment and Housing Act by filing an administrative charge and obtaining a Right to Sue letter within one year of the alleged act of harassment 1 Case 3:15-cv-04677-JSC Document 139 Filed 07/07/17 Page 2 of 11 NOTICE OF MOTION, MOTION FOR PARTIAL SUMMARY JUDGMENT AND MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT THEREOF Case No.: 3:15-cv-04677-JSC 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 prior to filing her Complaint herein. Defendant’s motion will be based upon this Notice of Motion, Motion for Partial Summary Judgment and Memorandum of Points and Authorities, the Declaration of Tracey Brewer, the Declaration of Brian D. Bertossa, the Request for Judicial Notice, and the documentary evidence, all of which are filed herewith, and on the papers, records, and files herein, and such other testimony, evidence, and argument as may be presented at the hearing of the motion. MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Defendant Engineering Associates, LLC (“EA”) is an engineering company that provides engineering design and support services to the telecommunications industry. It is not a construction contractor, and as such, is not licensed as a construction contractor in the State of California. When the Valley Transit Authority (“VTA”) began expanding the Bay Area Rapid Transit (“BART”) system in the San Francisco Bay Area (the “BART Expansion Project”), some of the work took place within the easement where Verizon’s telecommunications infrastructure was buried, and in some areas Verizon’s infrastructure was required to be moved. Verizon contracted with EA and EA in turn hired Debbie Silvia and John Vieira to monitor work being performed by the VTA and its contractors during the BART Expansion Project to ensure that Verizon’s infrastructure was not damaged or improperly relocated. Silvia’s last day of work was July 15, 2015 and she resigned on July 21, 2015, and Vieira’s last day of work was July 28, 2015. Declaration of Tracey Brewer in Support of Motion for Partial Summary Judgment (“Brewer Dec.”) at ¶ 4. 1 Although Plaintiffs were not construction workers, and the California Department of Industrial Relations (“DIR”) has twice determined that their work was not subject to 1 EA researched guidance from the IRS and determined that Plaintiffs did not meet the test for living temporarily away from home, which led EA to conclude that Plaintiffs were no longer eligible to receive tax-free per diem payments. Therefore, EA discontinued payment of per diem and nearly doubled Plaintiffs’ hourly rates to keep them whole. Both Silvia and Vieira disagreed with this change in their terms of employment and resigned. Brewer Dec. at ¶ 4. 2 Case 3:15-cv-04677-JSC Document 139 Filed 07/07/17 Page 3 of 11 NOTICE OF MOTION, MOTION FOR PARTIAL SUMMARY JUDGMENT AND MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT THEREOF Case No.: 3:15-cv-04677-JSC 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 California’s prevailing wage laws, (Brewer Dec. at ¶¶ 8, 9; Request for Judicial Notice in Support of Motion for Partial Summary Judgment (“RJN”) at ¶¶ 2, 4), Plaintiffs nonetheless filed suit claiming entitlement to prevailing wage for their work, including pursuing several other claims without reasonable basis, among them two claims asserted by Silvia under the Fair Employment and Housing Act alleging unlawful sex discrimination. EA is left with no choice but to seek partial judgment prior to the close of discovery on Plaintiffs’ third, fourth, fifth, eighth, and ninth causes of action. Properly limiting the scope of Plaintiffs’ Complaint is paramount to fair and efficient litigation of the action. II. LEGAL STANDARD A motion for summary judgment is appropriately granted when the pleadings and evidence demonstrate “that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party seeking summary judgment bears the burden of demonstrating the absence of a genuine issue of material fact. Celotex, 477 U.S. at 223. A genuine issue of material fact is one that “might affect the outcome of the suit under the governing law.” Anderson, 477 U.S. at 248. In determining whether there exists a genuine issue of material fact, the court must view all facts, and reasonable inferences drawn therefrom, in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Porter v. Cal. Dep't of Corrs., 419 F.3d 885, 891 (9th Cir. 2005). Once the moving party has met its burden, the nonmoving party “may not rest upon the mere allegations or denials of his pleading, but ... must set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 248. If the non-moving party does not produce evidence to show a genuine issue of material fact, the moving party is entitled to summary judgment. See Celotex, 477 U.S. at 323. /// /// 3 Case 3:15-cv-04677-JSC Document 139 Filed 07/07/17 Page 4 of 11 NOTICE OF MOTION, MOTION FOR PARTIAL SUMMARY JUDGMENT AND MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT THEREOF Case No.: 3:15-cv-04677-JSC 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 III. ARGUMENT A. Plaintiff Silvia’s FEHA-Based Claims Are Time Barred. Plaintiff Silvia’s Eighth Cause of Action for discrimination under Government Code section 19240(a) and Ninth Cause of Action for failure to prevent sexual harassment under Government Code section 12940(k) are time barred. To have standing to sue under the FEHA, a plaintiff must first exhaust her administrative remedies by filing an administrative charge with the DFEH and receiving a “Right to Sue” letter. Gov’t. Code § 12965(b); Johnson v. City of Loma Linda, 24 Cal. 4th 61, 70 (2000) (Title VII and FEHA are not the same; a plaintiff alleging a FEHA violation must first obtain a right-to-sue letter); Romano v. Rockwell International, Inc., 14 Cal. 4th 479, 492 (1996) (FEHA claims require an administrative charge and a “Right to Sue” letter). This administrative complaint and request for issuance of a Right to Sue notice must be filed within one year of the date of the allegedly unlawful harassment or discrimination or the claim is statutorily barred. Gov. Code § 12960. The timely filing of an administrative complaint with the DFEH is a jurisdictional prerequisite to bringing a civil action for damages under the FEHA. Ellis v. US. Sec. Assocs., 224 Cal. App. 4th 1213, 1229 (2014) (exhaustion of administrative remedies is a jurisdictional requirement for a FEHA claim, not a procedural requirement); Garcia v. Los Banos Unified School District, 418 F.Supp.2d 1194, 1214-15 (E.D. Cal. 2006) (“exhaustion of administrative remedies under FEHA is a jurisdictional prerequisite to resort to the courts”). The plaintiff has the burden of pleading and proving the exhaustion of administrative remedies, including obtaining a “right-to-sue” letter prior to initiating the action, and the “[f]ailure to exhaust warrants a defense summary judgment.” Garcia, 418 F.Supp at 1215. Silvia’s Second Amended Complaint fails to plead that she satisfied this exhaustion for a very good reason – she failed to do so. Plaintiff Silvia last worked for EA on July 15, 2015, and any alleged unlawful act would have occurred prior to that date. Consequently, any administrative charge with the DFEH was required to have been filed at the very latest on July 15, 2016, and in in any event no later than one year after the 4 Case 3:15-cv-04677-JSC Document 139 Filed 07/07/17 Page 5 of 11 NOTICE OF MOTION, MOTION FOR PARTIAL SUMMARY JUDGMENT AND MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT THEREOF Case No.: 3:15-cv-04677-JSC 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 alleged act. After the lawsuit commenced, and because EA had never been served or put on notice of Silvia’s allegations of discrimination and harassment, EA submitted a Public Records Act request to the DFEH seeking any complaints she filed. On September 28, 2016 the DFEH responded to EA’s Public Records Act request to confirm that it had no record of a complaint having been filed by Silvia. Declaration of Brian D. Bertossa in Support of Motion for Partial Summary Judgment (“Bertossa Dec.”) at ¶¶ 2, 3; Request for Judicial Notice in Support of Motion for Partial Summary Judgment (“RJN”) at ¶ 1 (DFEH letter dated September 28, 2016). It was not until November 4, 2016, approximately sixteen months after she resigned— and after EA informed her counsel that her claims were barred for failure to exhaust—that she finally submitted a claim to the DFEH and requested immediate issuance of the Right to Sue notice. Bertossa Dec. at ¶¶ 5-8; RJN at ¶ 4 (DFEH records). As her claim was not submitted within one year of the alleged unlawful act as required by Government Code section 12960, her FEHA-based claims are time barred and EA is entitled to judgment in its favor on the Eighth and Ninth Causes of Action as a matter of law.2 B. Plaintiffs’ and EA’s Good Faith Dispute Regarding Wages Precludes Penalties Under Labor Code Section 203. Plaintiffs’ Third Cause of Action seeks a “waiting time” penalty under Labor Code section 203 for the alleged failure of EA to pay all wages due at the time their employment ended. However, as there is a good faith dispute regarding their entitlement to payment of prevailing wage, Plaintiffs are not entitled to Section 203 penalties. Labor Code section 203 2 Plaintiff’s and Plaintiff’s counsel’s actions regarding the Eighth and Ninth Causes of Action raise questions under Rule 11. Here, Plaintiff’s claim was not submitted to the DFEH until after Defendant informed Plaintiff’s counsel during the parties’ mediation that the FEHA-based claims were barred for failure to exhaust. Bertossa Dec. at ¶ 5. Even a cursory examination of the FEHA would have verified the claims were no longer valid. Thereafter, Plaintiff Silvia and counsel not only did not remove the FEHA claims from the pleadings, but filed a Second Amended Complaint continuing to assert them, forcing EA and other defendants to respond. This is the type of conduct that Rule 11 and pleading standards are intended to deter. But the conduct here is even worse – filing and pursuing a claim without a reasonable basis and, after receiving notice the claim is statutorily barred, requiring EA to expend resources to respond to a frivolous claim. 5 Case 3:15-cv-04677-JSC Document 139 Filed 07/07/17 Page 6 of 11 NOTICE OF MOTION, MOTION FOR PARTIAL SUMMARY JUDGMENT AND MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT THEREOF Case No.: 3:15-cv-04677-JSC 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 provides for “waiting time” penalties to be imposed against an employer “willfully failing” to timely pay wages due an employee. The meaning of the term “willful,” as used in Labor Code section 203, is that an employer “intentionally fails or refuses to perform an act which is required to be done.” Davis v. Morris, 37 Cal.App.2d 269, 275 (1940). Plaintiffs cannot demonstrate that EA intentionally failed and refused to pay wages that were owed at the time of their resignations. Furthermore, California Code of Regulations, title 8, section 13520 creates an objective standard precluding the imposition of penalties where there is a good faith dispute over wages. This regulation states: A willful failure to pay wages within the meaning of Labor Code Section 203 occurs when an employer intentionally fails to pay wages to an employee when those wages are due. However, a good faith dispute that any wages are due will preclude imposition of waiting time penalties under Section 203. [¶] (a) Good Faith Dispute. A ‘good faith dispute’ that any wages are due occurs when an employer presents a defense, based in law or fact which, if successful, would preclude any recovery on the part of the employee. The fact that a defense is ultimately unsuccessful will not preclude a finding that a good faith dispute did exist. Defenses presented which, under all the circumstances, are unsupported by any evidence, are unreasonable, or are presented in bad faith, will preclude a finding of a ‘good faith dispute.’ Cal.Code Regs., tit. 8, § 13520. See Gonzalez v. Downtown LA Motors, LP, 215 Cal. App. 4th 36, 55 (2013) (good faith belief in a legal defense will preclude a finding of willfulness); FEI Enterprises, Inc. v. Kee Man Yoon, 194 Cal. App. 4th 790, 802 (2011) (good faith defenses preclude application of the penalty). Cf. Lusardi Construction Co. v. Aubry, 1 Cal.4th 976, 997 (1992) (penalties against contractor in appropriate and not in furtherance of substantial justice “when [contractor] acted in good faith and on the express representations of a government entity”). Defendant EA’s good faith belief that Plaintiffs were not entitled to prevailing wages is indisputable, precluding the application of Labor Code section 203 to Plaintiffs’ claims. Within the communications industry, Plaintiffs’ work – to monitor and report on the work of contractors – has not been treated as subject to prevailing wage statutes, and although both Plaintiffs had a history of performing this type of work, neither claimed entitlement to prevailing wage when hired. Brewer Dec. at ¶ 5-7. They did not work with 6 Case 3:15-cv-04677-JSC Document 139 Filed 07/07/17 Page 7 of 11 NOTICE OF MOTION, MOTION FOR PARTIAL SUMMARY JUDGMENT AND MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT THEREOF Case No.: 3:15-cv-04677-JSC 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 the tools of the trades, or perform construction work, such as digging the trenches, laying conduit, pulling fiber optic cable, operating machinery, or any of the other types of tasks that are covered by the prevailing wage law. Brewer Dec. at ¶ 6. In short, they did not perform construction work. Instead, they were observing the work being performed by the construction companies, ensuring that Verizon’s infrastructure was not damaged in the course of their work, and reporting back to Verizon on the progress of their work. Id. On April 28, 2014, shortly after Plaintiff Silvia started working for EA, Verizon requested that the DIR confirm that the monitoring and recordkeeping duties to be performed by Silvia, Vieira, and others were not subject to prevailing wage laws. Verizon wrote to the DIR recounting that “Verizon has been told over the phone by the DLSE that since the inspector is not completing any of the work and assigned to review quality, prevailing wage would not apply,” and requested an opinion confirming that prevailing wage did not apply.3 Brewer Dec. at ¶ 8 & Ex. A. Verizon’s request accurately described the job functions the inspectors such as Silvia and Vieira performed. Id. On May 27, 2014 the DIR concluded that “the work described in your letter does not constitute ‘inspection’ as defined under Labor Code §1720(a)(1) and therefore is not subject to prevailing wage requirements.” Brewer Dec. at ¶ 8 & Ex. B; RJN at ¶ 4 (DIR letter dated May 7, 2014). Silvia also filed a complaint with the DIR claiming entitlement to prevailing wage. She described her job duties and the “tools” she used, such as tape measure, wheel, computer, and a camera. Bertossa Dec. ¶ 4 & Ex. C. After considering her claims, and her description of her job duties and equipment used to perform her work, the DIR concluded that her work was not subject to the Prevailing Wage Law and issued a Notice of Complaint Closed. Id.; RJN at ¶ 2. Based upon long-standing industry practice, the plain language of the statutes, the DIR’s May 7, 2014 opinion letter, and the DIR’s rejection of Plaintiff Silvia’s prevailing wage complaint, it is undisputed that EA had a good faith belief that Plaintiffs were not 3 “DLSE” is the acronym for the California Department of Industrial Relations, Division of Labor Standards Enforcement. 7 Case 3:15-cv-04677-JSC Document 139 Filed 07/07/17 Page 8 of 11 NOTICE OF MOTION, MOTION FOR PARTIAL SUMMARY JUDGMENT AND MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT THEREOF Case No.: 3:15-cv-04677-JSC 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 entitled to be paid prevailing wages. Therefore, EA is entitled to judgment in its favor as to Plaintiffs’ Third Cause of Action. C. Plaintiffs Are Not Entitled To Penalties Under Labor Code Section 1194.2. Plaintiffs’ Fourth Cause of Action seeks an award of “liquidated damages for the failure to pay the minimum wage under Labor Code Section 1194.2 in the amount equal to the underpaid wage amount . . .” Section 1194.2 does not apply to their claims, and Plaintiffs are not entitled to liquidated damages. Section 1194.2 applies only to claims for “the payment of a wage less than the minimum wage fixed by an order of the commission or by statute.” (Emphasis added.) The wages that form the basis of Plaintiffs’ claim are not fixed “by an order of the commission or by statute” as they are not set by the Industrial Welfare Commission or statute adopted by the Legislature. For example, California’s minimum wage is fixed by statute adopted by the Legislature. See Labor Code § 1182.12 (fixing the minimum wage at $9 per hour, $10 per hour after January 1, 2016). Prevailing wage rates applicable to construction work performed on public works projects are set by the Director of the DIR based upon the general prevailing rates in the construction industry, generally by reference to collective bargaining agreements entered between construction labor unions and contractors. See Labor Code §§ 1770, 1773. “The Director of the Department of Industrial Relations (Director) is given the responsibility for determining the general prevailing wage according to statutory criteria. The Director fixes the prevailing wage rates for every category of worker needed for a public works project, which are then used by public entities soliciting bids for the project.” State Bldg. and Const. Trades Council of California v. Duncan, 162 Cal. App. 4th 289, 295 (2008) (emphasis added). The Ninth Circuit has concluded “the prevailing wage determined by the Director is not a fixed statutory or regulatory minimum wage, but one derived from the combined collective bargaining of third parties in a particular locality.” Chamber of Commerce of U.S. v. Bragdon, 64 F.3d 497, 502 (9th Cir. 1995). As Plaintiffs are not seeking damages for failure to pay the minimum wage fixed by an order of the Industrial Welfare Commission or 8 Case 3:15-cv-04677-JSC Document 139 Filed 07/07/17 Page 9 of 11 NOTICE OF MOTION, MOTION FOR PARTIAL SUMMARY JUDGMENT AND MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT THEREOF Case No.: 3:15-cv-04677-JSC 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 statute, their claims are not within the scope of Section 1194.2 and EA is entitled to judgment as a matter of law on this claim. Even if Section 1194.2 was available to Plaintiffs in this case, Section 1194.2 provides – similar to Labor Code section 203 discussed above – that good faith disputes regarding the payment of wages do not result in the imposition of liquidated damages. Section 1194.2(b) provides that if the court is satisfied that the act or omission giving rise to the action was in good faith and that the employer had reasonable grounds for believing that the act or omission was not a violation of any provision of the Labor Code relating to minimum wage, or an order of the commission, the court or the Labor Commissioner may, as a matter of discretion, refuse to award liquidated damages or award any amount of liquidated damages not exceeding the amount specified in subdivision (a). California Labor Code §1194.2(b). Here, the type of work Plaintiffs were performing has not been treated within the industry as subject to the payment of prevailing wages, the DIR issued an opinion that Plaintiffs’ work was not subject to the prevailing wage statutes, and the DIR denied the applicability of the Prevailing Wage Law in response to Silvia’s administrative complaint. EA had reasonable grounds for believing that Plaintiffs were not entitled to prevailing wage. EA is entitled to the protection of Section 1194.2(b), and is also entitled to summary judgment on this basis. D. Plaintiffs’ Claims Under Labor Code Section 203.5 May Only Be Asserted Against Sureties. Plaintiffs’ Fifth Cause of Action seeks penalties under Labor Code section 203.5. Labor Code section 203.5(a) on its face applies only to a “bonding company issuing a bond which secures the payment of wages . . .” and provides for a “penalty against the bonding company or surety. . .” Cal. Lab. Code § 203.5. EA is not a surety or a bonding company, and did not issue a bond securing the payment of wages to Plaintiffs. Brewer Dec. at ¶ 3. Thus, EA cannot be subject to penalties under this code section and EA is entitled to judgment in its favor as a matter of law on this claim.4 4 Plaintiffs’ counsel’s continued pursuit of penalties under Labor Code section 203.5 also 9 Case 3:15-cv-04677-JSC Document 139 Filed 07/07/17 Page 10 of 11 NOTICE OF MOTION, MOTION FOR PARTIAL SUMMARY JUDGMENT AND MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT THEREOF Case No.: 3:15-cv-04677-JSC 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 IV. CONCLUSION For all the reasons stated herein, Defendant Engineering Associates, LLC requests that the Court enter judgment as to the Third, Fourth, Fifth, Eighth, And Ninth Causes Of Action in its favor with prejudice. DATED: July 7, 2017 COOK BROWN, LLP BRIAN D. BERTOSSA, ESQ. STEPHEN R. McCUTCHEON, JR., ESQ. By: /s/ Brian D. Bertossa _______ Attorneys for Defendant ENGINEERING ASSOCIATES, LLC raises issues under Rule 11. Following removal Defendant EA filed a motion to dismiss on the ground that it was not a surety or bonding company, and Plaintiffs could not show that it was a proper defendant to a claim under Section 203.5. The Court’s order granting EA’s motion with leave to amend stated, “It is not plausible that each named Defendant is a surety or bonding company liable on the payment bond.” Yet Plaintiffs and counsel have made no further inquiry or effort to identify a basis for characterizing Defendant EA as a “surety” or “bonding company” subject to Section 203.5, and nevertheless have required Defendant EA to respond to this frivolous claim. 10 Case 3:15-cv-04677-JSC Document 139 Filed 07/07/17 Page 11 of 11