Case Number: BC619720 Hearing Date: February 20, 2018 Dept: 47

¿Lesnia Mojica v. Symaction Communications, LLC, et al.

MOTION FOR SUMMARY ADJUDICATION

MOVING PARTY:¿Defendants Symaction Communications, LLC, Alison Wissot, and Michael Wissot

RESPONDING PARTY(S):¿Plaintiff Lesnia Mojica

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

¿

¿Plaintiff alleges wage and hour violations, including a PAGA cause of action for civil penalties.

¿Defendants Symaction Communications, LLC, Alison Wissot, and Michael Wissot move for summary adjudication.

TENTATIVE RULING:

¿Defendants Symaction Communications, LLC, Alison Wissot, and Michael Wissot’s motion for summary adjudication is DENIED as to Issue No. 1 re: the third cause of action, Issue No. 2 re: the fourth cause of action, and Issue No. 3 re: the seventh cause of action.

DISCUSSION:

Motion For Summary Adjudication

1.¿Issue No. 1: “Plaintiff’s Third Cause of Action For Failure To Provide Meal Breaks Fails As A Matter of Law Because (1) Plaintiff Was A Personal Attendant and Thus Not Entitled To Meal Breaks and (2) Plaintiff Admits the Wissots Never Prevented Her From Taking Breaks and That She Had Complete Control Over How She Spent Her Workday.”

¿Defendants argue that Plaintiff was a “personal attendant” per IWC Wage Order 15-2011 and was therefor not entitled to meal breaks. However, Defendants have not met the initial burden of demonstrating that Plaintiff qualified as a “personal attendant” as that term is defined in Labor Code § 1451(d).

As used in this part, the following definitions apply:

. . .

(d) “Personal attendant” means any person employed by a private householder or by any third-party employer recognized in the health care industry to work in a private household, to supervise, feed, or dress a child, or a person who by reason of advanced age, physical disability, or mental deficiency needs supervision. The status of personal attendant shall apply when no significant amount of work other than the foregoing is required. For purposes of this subdivision, “no significant amount of work” means work other than the foregoing did not exceed 20 percent of the total weekly hours worked.

Lab. Code § 1451 (bold emphasis added)

¿

¿Defendants’ separate statement does not address this 20% threshold. Thus, Defendants’ argument that Plaintiff was a “personal attendant” is not persuasive. Moreover, Plaintiff has presented evidence which raises a triable issue of material fact as to whether more than 20% of the work she performed was other than to supervise, feed, or dress a child. See Opp. Sep. State. Opp. Facts Nos. 20, 24; Mojica Depo., pages 192:9-193:3, 221:2-223:11; Mojica Decl., ¶ 14.

¿As such, a triable issue of material fact exists as to whether Plaintiff was a “personal attendant.”

¿Defendants’ argument that Plaintiff admitted that Defendants never prevented her from taking breaks and that she had complete control over how she spent her workday is insufficient to meet Defendants’ initial burden of demonstrating that they are entitled to judgment as to this cause of action. In order to meet their burden, employer must authorize meal and rest breaks, during which time, the employee is relieved of all duty, is permitted to relinquish control over activities, and is given a reasonable opportunity to take uninterrupted breaks:

In Brinker, the California Supreme Court clarified that an employer is required to make uninterrupted meal periods and rest breaks available to its employees, but is not obligated to ensure that they are taken. (Brinker, supra, 53 Cal.4th at pp. 1034, 1040–1041.) The court summarized its holding as follows: “An employer’s duty with respect to meal breaks … is an obligation to provide a meal period to its employees. The employer satisfies this obligation 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. What will suffice may vary from industry to industry, and we cannot in the context of this class certification proceeding delineate the full range of [*1059] approaches that in each instance might be sufficient to satisfy the law.” (Brinker, supra, 53 Cal.4th at p. 1040.)

Koval v. Pacific Bell Telephone Co. (2014) 232 Cal.App.4th 1050, 1058-59 (bold emphasis added).

Dailey also alleged that Sears “routinely interrupted and/or failed to permit, authorize and/or provide” the proposed class members with meal periods and rest breaks as required by law. There is no substantial evidence, however, that Sears employed any policy or routine practice to deprive proposed class members of “off-duty” meal and rest breaks and, accordingly, Dailey failed to show that this allegation could be proved on a classwide basis.

In Brinker, the California Supreme Court clarified that an employer is required to make uninterrupted meal periods and rest breaks available, but is not obligated to ensure that they are taken. (Brinker, supra, 53 Cal.4th at pp. 1034, 1040–1041.) Additionally, an employer may be liable even when it makes rest and meal breaks available to nonexempt employees, if it also requires them to be available for work during those periods. (See Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1104 [56 Cal. Rptr. 3d 880, 155 P.3d 284] [requirement to provide rest/meal periods implies that employee will “be free of the employer’s control during the meal period”]; see also Sotelo, supra, 207 Cal.App.4th at p. 654 [a class may establish [*1001] liability “by proving a uniform policy or practice by the employer that has the effect on the group of making it likely that group members will … miss rest/meal breaks”].)

Dailey v. Sears, Roebuck & Co. (2013) 214 Cal.App.4th 974, 1000-01 (bold emphasis and underlining added).

¿Here, the fact that Defendants may not have prevented Plaintiff from taking meal and rest breaks, Defendants have not presented evidence that they expressly authorized Plaintiff to take such breaks during which time she was relieved of all duty, was permitted to relinquish control over activities, and was given a reasonable opportunity to take uninterrupted breaks without having to be available for work during those periods.

¿Moreover, Plaintiff has presented evidence that Plaintiff did not have complete control over how she spent her work time, and Plaintiff could only choose the order in which assigned tasks could be performed. Opp. Facts Nos. 26 – 31; Mojica Depo., Page 193:19-194:25; 200:11-19; Mojia Decl., ¶ 15.

¿Accordingly, the motion for summary adjudication as to Issue No. 1 re: the third cause of action is DENIED.

2.¿Issue No. 2: “Plaintiff’s Fourth Cause of Action For Failure To Provide Rest Periods Fails As A Matter of law Because (1) Plaintiff Was A Personal Attendant and Thus Not Entitled To Meal Breaks and (2) Plaintiff Admits the Wissots Never Prevented Her From Taking Breaks and That She Had Complete Control Over How She Spent Her Workday.”

¿For the reasons discussed above re: Issue No. 1, which is hereby incorporated by reference, the motion for summary adjudication as to Issue No. 2 re: the fourth cause of action is DENIED.

3.¿Issue No. 3: “Plaintiff’s Seventh Cause of Action For Intentional Misclassification Fails As A Matter of Law Because (1) There Is No Private Right of Action for a Labor Code § 226.8 Violation and (2) Even If There Was, the Undisputed Evidence Establishes That the Wissots Did Not Intentionally Misclassify Plaintiff.”

¿Defendants’ argument that there is no private right of action for a Labor Code § 226.8 violation is inapposite. The seventh cause of action for violation of Labor Code § 226.8 purports to be a PAGA claim (see 1AC, ¶¶ 106 – 110), which is proper. See Noe v. Superior Court (2015) 237 Cal.App.4th 316, 334-341 (bold emphasis and underlining added).

¿Defendants’ argument that the Wissots did not intentionally misclassify Plaintiff is not persuasive. Whether an intent to misclassify was willful is inherently a triable issue of material fact for the jury to determine.

(a) It is unlawful for any person or employer to engage in any of the following activities:

(1) Willful misclassification of an individual as an independent contractor.

. . .

(i) For purposes of this section, the following definitions apply:

. . .

(4) “Willful misclassification” means avoiding employee status for an individual by voluntarily and knowingly misclassifying that individual as an independent contractor.

Labor Code § 226.8.

¿“[S]ummary judgment may be denied in the discretion of the court . . . if a material fact is an individual’s state of mind, or lack thereof, and that fact is sought to be established solely by the individual’s affirmation thereof.” CCP § 437c(e).

¿The motion for summary adjudication as to Issue No. 3 re: the seventh cause of action is DENIED.

¿Plaintiff to give notice, unless waived.

IT IS SO ORDERED.

Dated: February 20, 2018¿___________________________________

¿ Randolph M. Hammock

¿Judge of the Superior Court