Case Number: BC494129 Hearing Date: April 11, 2014 Dept: 34

Moving Party: Defendant Kahuna Restaurant Group LLC dba Fiesta Cantina

Resp. Party: Plaintiff Jordan Shannon

Defendant’s motion for summary judgment and/or adjudication is DENIED.

Objection
1 OVERRULED
2 OVERRULED
3 SUSTAINED
4 SUSTAINED
5 OVERRULED
6 OVERRULED
7 This is not an objection to evidence, but simply a disputed fact.
8 This is not an objection to evidence, but simply a disputed fact.
9 This is not an objection to evidence, but simply a disputed fact.
10 SUSTAINED
11 OVERRULED
12 This is not an objection to evidence, but simply a disputed fact.
13 This is not an objection to evidence, but simply a disputed fact.
14 This is not an objection to evidence, but simply a disputed fact.
15 OVERRULED
16 OVERRULED
17 OVERRULED

BACKGROUND:

Plaintiff commenced this action on October 17, 2012, against defendants for: (1) discrimination (FEHA); (2) retaliation (FEHA); (3) failure to prevent discrimination and harassment (FEHA); (4) intentional infliction of emotional distress; (5) negligence; (6) negligent hiring; and (7) wrongful termination. Plaintiff alleges he was subjected to discrimination and harassment while working at defendant’s establishment. Plaintiff alleges he was not afforded required rest breaks. (See Compl., ¶¶ 20-21.)

ANALYSIS:

Defendant seeks summary judgment and/or adjudication of plaintiff’s claims for meal/rest break violations and failure to pay wages and overtime. As an initial matter, the Court notes that at no point in the complaint does plaintiff allege that defendants failed to pay wages or overtime compensation in violation of the Labor Code. “The pleadings serve as the ‘outer measure of materiality’ in a summary judgment motion, and the motion may not be granted or denied on issues not raised by the pleadings. (Weil & Brown, Civ. Proc. Before Trial (The Rutter Group 2013) ¶ 10:51.1 [citing Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258; Nieto v. Blue Shield of Calif. Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 73; Hutton v. Fidelity Nat’l Title Co. (2013) 213 Cal.App.4th 486, 493].) Therefore, because plaintiff does not allege that defendants failed to pay wages or overtime compensation, the Court declines to consider this issue.

Plaintiff also does not expressly assert a cause of action for failure to provide meal and rest breaks. However, plaintiff does allege facts to support a cause of action for meal and rest break violations. (See Compl., ¶¶ 20-21; Lab. Code, §§ 226.7, 512.)

Defendant argues that these claims fail because plaintiff was a member of a class in a previous class action and agreed to release his meal and rest break claims. It is undisputed that in July 2010 Melissa Gomez filed an action in this Court, case number BC442468, claiming that defendant failed to provide its non-exempt employees with meal and rest periods. (See DMF/PMF 4.) According to the order for final approval of the class action settlement, the class included all persons who were employed in non-exempt positions at various locations, including plaintiff’s location, Fiesta Cantina, from July 26, 2006, to October 27, 2011. (See DMF 5, PMF 5 [though plaintiff opposes the asserted fact that he was a member of the class, he does not oppose the definition of the class].) It is undisputed that plaintiff was employed by defendant from 2002 until 2010. (DMF/PMF 3.) It is undisputed that the settlement released all claims by the class members for failure to provide meal and rest breaks, among other claims. (See DMF 7-8, PMF 7-8 [plaintiff only opposes the asserted fact that he was a member of the class; he does not oppose the asserted language of the release].) The settlement was given preliminary approval by the Court in BC442468 on October 27, 2011. (DMF/PMF 9.)

Defendant asserts that plaintiff was aware of Gomez class action. (See DMF 10.) However, the cited evidence does not support this assertion. When asked at his deposition if he was aware of the class action lawsuit or that he was a member of the class, plaintiff responded that he was not aware of those facts. (See Def. Exh. B, pp. 20-21.)

Defendant asserts that on December 14, 2011, a notice packet regarding the settlement was mailed by first class mail to plaintiff. (See DMF 11.) At a minimum, class members in a class action must be entitled to certain due process protections. (Weil & Brown, supra, ¶ 14:118.) “For adjudication of class claims for money damages or similar relief at law, notice sent by first class mail to the last known address of each member of the plaintiff class is sufficient.” (Id., ¶ 14:119 [citing Phillips Petroleum Co. v. Shutts (1985) 472 U.S. 797, 812] [italics in original].) Plaintiff’s evidence as to whether he actually received the packet is immaterial because “[e]vidence of actual receipt is not required.” (Weil & Brown, ¶ 14:122; see PMF 11.)

A declaration by Krista Tittle, a project manager for Simpluris, Inc., the class action claims administrator, is the only evidence presented by defendant as to the asserted fact that the packet was mailed by first class mail to plaintiff. (See DMF 11.) Plaintiff provides evidence which suggests that Tittle has no personal knowledge of this fact. Tittle testified at her deposition that she did not work on the class action and only took over when another employee at Simpluris left in December 2013. (Story Decl., Exh. A, pp. 28-29.) Tittle testified that she had no involvement in the class action prior to December 2013, it was “done” by the time she took over, and she did not actually work on the case. (Id., pp. 29, 44.) Tittle did not personally mail the packet. (Id., p. 47.) Tittle acknowledged that her knowledge came from reading documents and e-mails. (Id., pp. 107-108.) This evidence establishes that Tittle lacks personal knowledge as to whether the packet was actually mailed to plaintiff. The packet attached as exhibit A to the Tittle declaration does not include proof of service.

Moreover, plaintiff presents evidence that the address where the packet was purportedly mailed was not his last known address. Tittle declares that the packet was mailed to 750 S. Mansfield Ave., Los Angeles, California 90036.. (See Tittle Decl., ¶ 6.) Plaintiff declares that he has lived at 100 N. Doheny Drive # 303, Los Angeles, California 90048 since September 2009. (Shannon Decl., ¶ 3.) Plaintiff does not receive mail at any other address or location. (Id., ¶ 6.) While still employed by defendant, plaintiff informed management of his changed of address before he was terminated in November 2010. (Ibid.) Plaintiff declares that he has not lived at 750 S. Mansfield Ave., Los Angeles, California 90036 since February 2005. (Id., ¶ 4, fn. 1.) Because Tittle did not work on the case until well after the packet was mailed, she lacks personal knowledge as to whether defendant or Simpluris took any steps to verify plaintiff’s last known address. (See Story Decl., Exh. A, pp. 44-47, 59.) Tittle admitted at her deposition that the address had been provided by defendant. (See id., pp. 85, 107.)

Plaintiff’s evidence is sufficient to raise a triable issue of fact as to whether the settlement is binding on plaintiff as a member of the class.

Defendant’s motion for summary judgment and/or adjudication of plaintiff’s meal and rest break claims is DENIED.