Case Name: Garrison v. Summit Estate, Inc.

Case No.: 16CV297817

Defendant Summit Estate, Inc. (“Defendant” or “Summit”) moves for summary judgment, or in the alternative, summary adjudication in its favor and against plaintiff Bryan Garrison (“Plaintiff” or “Garrison”).

I. Factual and Procedural Background
II.

This is an action for wrongful termination, disability discrimination and various Labor Code violations, among other things. According to the allegations of the complaint (“Complaint”), Garrison was initially employed by Summit, an alcoholism and drug abuse rehabilitation center located in Los Gatos, as a weekend chef and worked as a non-exempt employee from January 2011 to March 30, 2016, typically for 50 hours per week. (Complaint, ¶¶ 15-16, 18.)

In January 2013, Plaintiff was promoted to Residential Chef. (Complaint, ¶ 19.) Approximately 20 months later, on September 21, 2015, Plaintiff was injured on the job due to a gas explosion, suffering a concussion, wrist sprain and back pain, among other injuries. (Id., ¶¶ 21-22.) As a result, Plaintiff went on disability leave from September 22, 2015 to November 16, 2015. (Id., ¶ 23.) Upon his return. Plaintiff was demoted from Residential Chef to cook. (Id., ¶ 24.) Nicole Foster (“Foster”) was the Residential Chef hired while Plaintiff was on disability leave. (Id., ¶ 25.) Foster required Plaintiff to work less desirable shifts including Thanksgiving, Christmas Eve, Christmas and some weekend shifts without receiving any additional compensation. (Id., ¶ 26.) On January 9, 2016, Summit gave Plaintiff a write-up for working the days Foster required him to work. (Id., ¶ 27.) Foster was terminated on December 28, 2016. (Id., ¶ 28.)

Upon his return to work, Summit failed to accommodate Plaintiff’s physical limitations, including prohibitions against lifting over 10 pounds and standing for long periods of time. (Complaint, ¶¶ 30-31.) Defendants also did not allow Plaintiff to take meal or rest breaks. (Id., ¶ 32.) Due to Defendant’s failure to accommodate him, on January 11, 2016, Plaintiff’s treating physician recommended that he go on disability leave again. (Complaint, ¶ 35.) On March 11, 2016, Plaintiff informed Summit that his expected date to return to work was April 24, 2016. (Id., ¶ 37.) On March 30, 2016, Summit terminated Plaintiff’s employment. (Id., ¶ 38.)

Plaintiff was misclassified as exempt and should have been at all times classified as a non-exempt employee because he spent the majority of his time performing non-exempt duties such as manual and routine work. (Complaint, ¶¶ 39-40.) Defendant failed to pay Plaintiff statutory overtime wages for hours worked in excess of 8 hours in a workday and 40 hours in a work week. (Id., ¶ 41.) Plaintiff was also not provided with the rest and meal breaks that he was entitled to, nor the wages he should have been paid as a result of not being provided with those breaks. (Id., ¶¶ 42-43.) Finally, the wage statements provided to Plaintiff were not accurate, in violation of the Labor Code. (Id., ¶ 46.)

As a result of the foregoing, on July 19, 2016, Plaintiff filed the Complaint asserting the following causes of action: (1) disability discrimination (Gov. Code § 12940 et seq.); (2) failure to accommodate- FEHA (Gov. Code § 12940 et seq.); (3) failure to engage in interactive process-FEHA (Gov. Code § 12940 et seq.); (4) FEHA retaliation (Gov. Code § 12945.1 et seq.); (5) failure to train and supervise; (6) failure to pay wages- FLSA (29 U.S.C. § 207); (7) failure to pay all straight wages and overtime (Labor Code §§ 510 and 1194 and IWC Wage Orders); (8) liquidated damages pursuant to Labor Code § 1194.2 and FLSA; (9) failure to provide meal and rest periods in violation of Labor Code §§ 226.7 and 512 and IWC Orders; (10) waiting time penalties Labor Code §§ 201, 202 and 203); (11) failure to provide an accurate wage statement in violation of Labor Code § 226(a) and 226(c); (12) civil penalties under Labor Code § 558; (13) violation of PAGA (Labor Code § 2698, et seq.); (14) unlawful, unfair and fraudulent business practices in violation of Business & Professions Code §§ 17200 and 17203 et seq.; and (15) wrongful termination in violation of public policy.

In September 2017, Plaintiff moved for summary judgment, or in the alternative, summary adjudication of his Complaint, which was opposed by Summit. On October 6, 2017, the Court denied the motion in its entirety. On March 22, 2019, Summit filed the instant motion for summary judgment, or in the alternative, summary adjudication of Plaintiff’s claims. Plaintiff opposes the motion. Trial is currently set for July 8, 2019.

III. Summit’s Motion for Summary Judgment, or in the Alternative, Summary Adjudication
IV.

A. Burden of Proof
B.

“A defendant seeking summary judgment [or adjudication] must show that at least one element of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action … The burden then shifts to the plaintiff to show there is a triable issue of material fact on that issue.” (Alex R. Thomas & Co. v. Mutual Service Casualty Ins. Co. (2002) 98 Cal.App.4th 66, 72 [internal citations omitted].)

“The ‘tried and true’ way for defendants to meet their burden of proof on summary judgment motions is to present affirmative evidence (declarations, etc.) negating, as a matter of law, an essential element of plaintiff’s claim.” (Weil & Brown, Cal. Prac. Guide; Civ. Proc. Before Trial (The Rutter Group 2014) ¶ 10:241, p. 10-104, citing Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.) “The moving party’s declaration and evidence will be strictly construed in determining whether they negate (disprove) an essential element of plaintiff’s claim ‘in order to resolve any evidentiary doubts or ambiguities in plaintiff’s (opposing party’s) favor.’” (Id., ¶ 10:241.20, p. 10-105, citing Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64.)

“Another way for a defendant to obtain summary judgment is to ‘show’ that an essential element of plaintiff’s claim cannot be established. Defendant does so by presenting evidence that plaintiff ‘does not possess and cannot reasonably obtain, needed evidence’ (because plaintiff must be allowed a reasonable opportunity to oppose the motion).” (Id., ¶ 10:242, p. 10-105, citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854-855.) “Such evidence usually consists of admissions by plaintiff following extensive discovery to the effect that he or she has discovered nothing to support an essential element of the cause of action.” (Id.)

In reviewing motions for summary judgment/adjudication in employment discrimination cases in particular, California courts employ the burden-shifting formula articulated by the United States Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792. (King v. United Parcel Service (2007) 173 Cal.App.4th986, 1004.) Under McDonnell Douglas, the plaintiff bears the burden of establishing a prima facie case of discrimination, and the burden then shifts to the employer to offer a legitimate, nondiscriminatory reason for the adverse employment action. (Mixon v. Fair Employment and Housing Commission (1992) 192 Cal.App.3d 1306, 1318.)

“A defendant employer’s motion for summary judgment slightly modifies the order or these [McDonnell Douglas] showings. [Citation.]” (Scotch, supra, 173 Cal.App.4th at 1005.) To prevail on its motion for summary judgment, the defendant employer is “required to show either that (1) plaintiff could not establish one of the [prima facie] elements of the FEHA claim, or (2) there was a legitimate, nondiscriminatory reason for the decision to terminate plaintiff’s employment.” (Avila v. Continental Airlines, Inc. (2000) 165 Cal.App.4th 1237, 1247 [internal citations omitted].) The elements for a discrimination claim are: (1) the plaintiff was member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment act, such as termination, demotion, or denial or an available job, and (4) some other circumstance suggests discriminatory motive.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355.)

“If the employer has met its burden by showing a legitimate reason for its conduct, the employee must demonstrate a triable issue by producing substantial evidence that the employer’s stated reasons were untrue or pretextual, or that the employer acted with a discriminatory animus, such that a reasonable trier of fact could conclude that the employer engaged in intentional discrimination or other unlawful action.” (DeJung v. Superior Court (2008) 169 Cal.App.4th 533, 553 [internal citations omitted].) “Speculation cannot be regarded as substantial responsive evidence.” (Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1038.) “Further, an inference of intentional discrimination cannot be drawn solely from evidence, if any, that the company lied about its reasons.” (Guz, supra, 24 Cal.4that 361-362.) “For instance, an employer would be entitled to judgment as a matter of law if the record conclusively revealed some other, nondiscriminatory reason for the employer’s decision, if the plaintiff created only a weak issue of fact as to whether the employer’s reason was untrue and there was an abundant and uncontroverted independent evidence that no discrimination had occurred.” (Id. at 362.)

C. Analysis
D.

With the following motion, Summit maintains that it is entitled to summary judgment of Plaintiff’s Complaint for the following reasons: (1) Plaintiff was sufficiently compensated for all work he performed as an hourly overnight facilities manager and a part-time contractor weekend chef; (2) Summit properly compensated Plaintiff with a regular salary for all work performed since he was hired as a full-time chef; and (3) Summit appropriately accommodated Plaintiff’s alleged disabilities despite him not seeking a reasonable accommodation in good faith. In contrast, Plaintiff asserts that summary judgment should be denied because he was improperly classified as an hourly employee at various points in time and often worked overtime for which he was not compensated. Further, he contends, Summit did not honor his physical limitations as a result of disability and terminated him because of his condition and request for reasonable accommodations.

1. FEHA Claims
2.

With his first five causes of action and his fifteenth cause of action, Plaintiff alleges various violations of the Fair Employment and Housing Act (the “FEHA”) (or the public policy embodies by that act) by Summit, to wit: (1) disability discrimination; (2) failure accommodate; (3) failure to engage in the interactive process; (4) retaliation ; (5) failure to train and supervise and (15) wrongful termination in violation of public policy. Each of these claims will be addressed in turn.

a. Disability Discrimination (1st Cause of Action)
b.

In the first cause of action, Plaintiff alleges that Summit discriminated against him due to his disabilities by, among other things, denying him appropriate accommodations that he requested and deliberately scheduling him to work shifts outside of his doctors’ recommendations. (Complaint, ¶¶ 50-51.) Summit maintains that summary adjudication of this claim should be granted because Plaintiff was not disabled under the FEHA, could not perform the essential duties of his job, and was terminated for legitimate, nondiscriminatory reasons.

Based on the arguments that it is asserting, Summit is attempting to meet its initial burden in two separate ways: one, by demonstrating that Plaintiff cannot establish the prima facie elements of his claim, and two, by establishing that it had a legitimate, nondiscriminatory reason to terminate his employment.

Generally, on a disability discrimination claim, the prima facie case requires the plaintiff to show that he or she “(1) suffered from a disability, or was regarded as suffering a disability; (2) could perform the essential duties of the job with or without reasonable accommodations [i.e., was qualified to do the job]; and (3) was subjected to an adverse employment action because of the disability or perceived disability. [Citation.]” (Wills v. Superior Court (1995) 195 Cal.App.4th 143, 159-160.) A plaintiff in a disability discrimination case has not shown that the defendant has done anything wrong until the plaintiff can show that he or she was able to the job with or without reasonable accommodation. (Green v. State of Calif. (2007) 42 Cal.4th 254, 263.) Here, Summit argues that Plaintiff was not disabled within the meaning of the FEHA because he was able to continue performing “sports activities” while on disability leave.

Under the FEHA, “physical disability” includes having a physiological disease, disorder, or condition that, by affecting the neurological or musculoskeletal body systems, special sense organs or skin, “limits” a “major life activity.” (Gov. Code, § 12926, subd. (k)(1)(A)(B).) “Limits” is synonymous with making the achievement of a major life activity “difficult.” (Id., subd. (k)(1)(B)(ii).) “Major life activity” is construed broadly and includes physical, mental, and social activities, as well as working. (Id., subd. (k)(1)(B)(iii).) “[W]orking is a major life activity, regardless of whether the actual or perceived working limitation implicates a particular employment or a class or broad range of employments.” (Gov. Code, § 12926.1, subd. (c).) Whether a major life activity is limited “shall be determined without regard to mitigating measures such as medications, assistive devices, prosthetics, or reasonable accommodations, unless the mitigating measure itself limits a major life activity.” (Gov. Code, § 12926, subd. (k)(1)(B)(i).)

Summit asserts that during the period of his second disability leave, which began in January 2016, Garrison was involved in a variety of physical activities, including surfing, snowboarding, and traveling hundreds of miles to boat shows to try to launch a boat business. (See Summit’s Separate Statement in Support of Motion for Summary Judgment, or in the Alternative, Summary Adjudication (“UMF”) Nos. 26-28.) The evidence cited in support of Summit’s assertion consists of deposition testimony from Plaintiff and his roommate regarding his participation in various physical recreational and sport activities (e.g. snowboarding and wakeboarding). This evidence, however, only relates to Plaintiff’s physical condition during his second disability leave, and does not speak to his condition during his first disability leave and return to work. If Plaintiff was disabled upon his return to work after the first leave, this claim can still be maintained as the evidence regarding his snowboarding and wakeboarding does not establish that he participated in those activities during that time in particular. Plaintiff’s disability claim is predicated, at least in part, on the treatment he received after returning to work from his first disability leave. (Complaint, ¶¶ 50-51.) Consequently, evidence that Plaintiff engaged in a variety of physical activities during January 2016 and onward does not meet Summit’s initial burden on this cause of action because it does not establish that Plaintiff was not disabled at all relevant times.

Summit also maintains that it had legitimate, nondiscriminatory reasons for its various decisions about Plaintiff’s employment, including moving him to a different position after he returned from his first disability leave and ultimately terminating him. Summit explains that Plaintiff violated several company policies relating to unauthorized use of a company credit card and unauthorized switching of schedules, and his continued leaves of absence, which kept getting extended, caused an undue burden on the business. (Summit’s Evidence in Support of MSJ/MSA, Exhibits 19, 21, 23, 64, 65, 94.) However, the materials submitted by Summit in this regard, which include a document entitled “SERC Progressive Counseling Notice” (notes describing conduct, policy and procedure violations by Garrison in November and December 2016) and notes from a meeting between Garrison and CEO Paul Ponomarenko (“Ponomarenko”), Program Director Richard Ayala (“Ayala”) and HR Manager Annette Patsuris (“Patsuris”) on January 12, 2016 regarding Garrison’s conduct, still only involve his termination and not the adverse employment actions that Plaintiff alleges he was subjected to when he returned from his first leave of absence. Summit briefly addresses this period, stating that he did not lose his job and that it was within in right (and need) to hire another chef to fill in during his absence, but says nothing about Plaintiff’s assertion that he was demoted upon his return and given less desirable shifts. Thus, Summit has not demonstrated that it had legitimate, nondiscriminatory reasons for all of the adverse employment actions that it purportedly took against Plaintiff and therefore has not met its initial burden on the first cause of action. Consequently, its request for summary adjudication of this claim is DENIED. It follows that Summit’s request for summary judgment is also DENIED.

c. Failure to Accommodate (2nd Cause of Action)
d.

In the second cause of action, Plaintiff alleges that Summit failed to meet its obligations under FEHA by failing to reassign him to a vacant, equivalent position or accommodating him in his position, which included limited hours and lifting and standing restrictions that the company could have accommodated. (Complaint, ¶¶ 63-67.) Summit insists that this claim fails and that it is entitled to summary adjudication because Plaintiff never sought a reasonable accommodation or informed Defendant of any specific limitations, it did not know what his disability and limitations would allow and his only apparent accommodation- an indefinite leave of absence- resulted in an undue hardship for Defendant.

“The FEHA imposes on the employer the obligation to make reasonable accommodation for a known mental or physical disability of an employee.” (Scotch v. Art Institute of California, supra, 173 Cal.App.4th at 1003.) “The elements of a failure to accommodate claim are (1) the plaintiff has a disability under the FEHA, (2) the plaintiff is qualified to perform the essential functions of the position, and (3) the employer failed to reasonably accommodate the plaintiff’s disability.” (Id. at 1009-1010.) Employers who are aware of an employee’s disability have an affirmative duty to make reasonable accommodations for such disability, even if the employee has not requested any accommodation. (2 Cal. Regs. § 11068, subd. (a); see Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 949-950.)

In support of its arguments, Summit cites to purportedly undisputed material facts 17-25 and 29 in its separate statement. All but two of these “facts” concern the parties’ conduct in 2016 and not the period of time involving Plaintiff’s first disability leave. The two “facts” that do concern that first leave period, Nos. 24 and 25, do not establish that Plaintiff was reasonably accommodated by Summit during that time. In one of the facts, No. 25, Summit states that Plaintiff did not provide any requests for reasonable accommodations for his disability “outside of [his] doctor’s notes.” But Summit cites no authority which would support its apparent contention that a physician’s note containing physical restrictions for a patient is not a request for a reasonable accommodation. It also does not establish that it complied with Plaintiff’s request, and even if it did, Plaintiff presents evidence which demonstrates that it did not. (See Plaintiff’s Opposing Separate Statement (“PUMF”), No. 25; Plaintiff’s Additional Material Facts (“AUMF”) Nos. 17, 21.)

Because Summit has not demonstrated that Plaintiff did not request a reasonable accommodation, it has not met its initial burden on this cause of action and its request for summary adjudication is DENIED.

e. Failure to Engage in Interactive Process (3rd Cause of Action)
f.

In his third cause of action, Garrison alleges that Summit failed to meet its obligation to engage in a timely, ongoing, good faith interactive process to accommodate him and failed to reasonably accommodate him by (1) assigning him to perform heavy lifting immediately after his doctor restricted him from lifting anything over 10 pounds and (2) requiring him to work for long periods of time without a rest break when he was restricted from standing for such long periods. (Complaint, ¶¶ 72-73.) Plaintiff purportedly continued to request accommodations, but those requests were ignored by Summit, who made no attempts to find an alternative accommodation.

Summit argues that summary adjudication of this claim in its favor is warranted because Plaintiff failed to initiate or engage in the interactive process, and did not inform it of his alleged limitations or how his disability could be accommodated.

“The [FEHA] makes it unlawful for an employer to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for a reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition. [Government Code] § 12940, subdivision (n) imposes separate duties on the employer to engage in the interactive process and make reasonable accommodations.” (Scotch, supra, 173 Cal.App.4th at 1003 [internal quotations and citations omitted].) An employer’s failure to engage in this process is a separate FEHA violation from a failure to accommodate and involves different proof of facts. (Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413, 424-425.) “The interactive process required by the FEHA is an informal process with the employee or the employee’s representative, to attempt to identify reasonable accommodation which will enable the employee to perform the job effectively. Ritualized discussions are not necessarily required.” (Wilson v. City of Orange (2009) 169 Cal.App.4th 1185, 1195 [internal citations and quotations omitted].) The essential elements of such a cause of action are: (1) the plaintiff has a disability that was known to his employer, (2) the plaintiff requested that his employer make a reasonable accommodation for that disability so he would be able to perform the essential job requirements, (3) the plaintiff was willing to participate in an interactive process to determine whether a reasonable accommodation could be made, (4) the employer failed to participate in a timely, good faith interactive process with the plaintiff, (5) the plaintiff was harmed, and (6) the employer’s failure to engage in a good faith interactive process was a substantial factor in causing the plaintiff’s harm. (CACI No. 2546.)

Per the previous cause of action, Summit acknowledges that Plaintiff, after his first disability leave, submitted to it a note from his physician stating that he was not to lift anything over 10 pounds on account of his physical condition. (UMF No. 25; see also AUMF No. 19.) Thus, its assertion that Plaintiff not inform Summit of his limitations or how his alleged disability could be accommodated (at least with regard to his first leave of absence) is unavailing. The Court finds that Summit therefore has not established that Plaintiff himself failed to engage in the interactive process. Consequently, its request for summary adjudication of the third cause of action is DENIED.

g. Retaliation (4th Cause of Action)
h.

In the fourth cause of action, Plaintiff alleges that he was unlawfully demoted following his return from disability in retaliation for taking such leave and was also retaliated against by being terminated after informing Summit of his expected date of return from his second disability leave. (Complaint, ¶¶ 81-83.) Summit argues that this claim fails because Plaintiff was not disabled and it did not make any employment decisions based on his alleged disability.

“[I]n order to establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a ‘protected activity,’ (2) the employer subjected the employee to an adverse employment action, and (3) a causal link [exists] between the protected activity and the employer’s action.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1018, 1042.) The causal link between protected activity and an employer’s action may be established by direct evidence of retaliatory motive, but can also be inferred from circumstantial evidence.” (Morgan v. Regents of University of California (2001) 88 Cal.App.4th 52, 69-70.) An inference of causation may be established from the employer’s knowledge that the employee engaged in protective activities and the proximity in time between the protected activity and the alleged retaliatory employment action. (Id.) Cases uniformly suggest that the lapse of time between the protected activity and the adverse employment action must be relatively short in order to support an inference of causation. (Loggins v. Kaiser Permanente (2007) 151 Cal.App.4th 1102, 1110, fn. 6.)

With regard to the issue of whether Plaintiff had a disability within the meaning of the FEHA, Summit fails, as it did in the first cause of action, to address Plaintiff’s condition during and after his first leave of absence and thus fails to establish that Plaintiff was not disabled at all relevant points in time. Also similar to the first cause of action, while Summit has provided evidence that it terminated Plaintiff’s employment for legitimate, non-retaliatory reasons (i.e., his alleged violation of several company policies relating to unauthorized use of a company credit card and unauthorized switching of schedules), it does not address the adverse employment action- a demotion- that Plaintiff alleges he suffered upon his return from his first leave of absence. Thus, Summit has not demonstrated that it had legitimate, non-retaliatory reasons for all of the adverse employment actions that it purportedly took against Plaintiff and therefore has not met its initial burden on this cause of action. Accordingly, Summit’s request for summary adjudication of the fourth cause of action for retaliation is DENIED.

i. Failure to Train and Supervise (5th Cause of Action)
j.

Plaintiff’s fifth cause of action is predicated on allegations that Summit breached its duty to properly train and supervise its employees so as to keep the workplace free of discrimination and retaliation, i.e., conduct that violates FEHA. Though titled failure to train and supervise, this claim is most accurately described as a claim for negligence. (See e.g., Prilliman v. United Air Lines, supra, 53 Cal.App.4th at 955-956.) The elements of such a claim are (1) a legal duty to use due care, (2) a breach of such legal duty and (3) the breach as the proximate or legal cause of the resulting injury. (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.) Plaintiff asserts that pursuant to FEHA, employers have a duty to ensure that the workplace is kept free of discrimination and retaliation. (See Gov. Code, § 12940, subd. (k); Northern Grumman Corp. v. Workers’ Comp. Appeals Bd. (2002) 103 Cal.App.4th 1021, 1035.) Summary adjudication of this claim in its favor is warranted, Summit contends, because Plaintiff was not disabled and it otherwise did not breach any of its obligations under the FEHA.

It is undisputed that all Summit employees were provided with Summit’s nondiscrimination policies. (UMF No. 31.) Patsuris also testified that she went over the company’s nondiscrimination policy with the program directors, who were instructed to follow up with questions if they had any. (Summit’s Evid., Exhibit 125.) Plaintiff insists that Defendant did not provide any actual discrimination prevention training to its management team, and cites to portions of the depositions of Ponomarenko and Patsuris in support. (AUMF Nos. 12, 13.) The former testified that he never personally participated in or gave any training regarding discrimination prevention before Garrison worked for Summit and could not recall if the managers underwent training specifically relating to that topic. (Id.) Patsuris testified that she discussed the company’s anti-discrimination policies with Ponomarenko, but did not “train” him or anyone else. (Id.) She explained that the policies were presented by the program director to the residential staff.

As the Court explained in its preceding order on Plaintiff’s motion for summary judgment, while it is clear, based on cases like Prilliman, supra, that an employer does have an obligation to train and supervise its employees when it comes to keeping the workplace free of conduct that violates FEHA, the extent of that duty is not clear. That is, Defendant does not articulate precisely what an employer must do in order to meet this duty of care such that it can be determined whether it met that duty. Summit describes the obligation to establish the extent of the duty as Plaintiff’s. While that might be true at trial, where Plaintiff will bear the burden of establishing all of the elements of his claim, this burden is on Defendant here as it is seeking summary adjudication of this cause of action. Even if the Summit’s evidence was deemed sufficient to meet its initial burden, the Court finds that Plaintiff has demonstrated a triable issue of material fact, particularly with respect to whether Summit provided sufficient training and supervision to its employees. Consequently, Summit’s request for summary adjudication of the fifth cause of action is DENIED.

k. Wrongful Termination in Violation of Public Policy (15th Cause of Action)
l.

In California, employers are obligated to refrain from discharging employees in violation of public policies recognized by the state. (Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 172.) If they do so, an employee’s remedy is a common law tort for wrongful discharge. (Id. at 174-175.) Here, Plaintiff alleges that Summit violated public policy as set forth in FEHA and the Labor Code by terminating him while he was on disability leave. Summit notes, accurately, that this claim is derivative of Plaintiff’s FEHA claims. It asserts that because those claims should be summarily adjudicated for the reasons discussed above, it follows that this claim should be as well.

As explained in the disability discrimination claim, Summit has proffered evidence which establishes that Plaintiff was terminated for legitimate, non-discriminatory reasons. Although Summit nevertheless is not entitled to summary adjudication of the first cause of action because it has not addressed all of the adverse employment acts that Plaintiff claims to have suffered, it has met its initial burden on this cause of action with this evidence because it is only predicated on Plaintiff’s termination and not on other adverse actions that took place during his employment. The burden therefore shifts to Plaintiff to raise a triable issue of material fact in this regard.

To this end, Plaintiff maintains that the reasons for his termination are in dispute. He argues that the evidence establishes that he was terminated, at least in part, for requesting a reasonable accommodation in the form of a disability leave of definite duration. (AUMF No. 27.) Plaintiff’s characterization of the evidence cited in support of this “fact” is somewhat misleading. Summit acknowledged that Plaintiff’s continued absence from work, the second time, was part of the reason for his termination, but explained that continuing to accommodate Plaintiff in that way was placing an undue burden on the business. While this sounds like the smoking gun of discriminatory animus, that is not necessarily the case, as where a leave is shown to inflict an undue hardship on an employer’s operations, it may qualify as an unreasonable accommodation. (Garcia-Ayala v. Lederle Parenterals, Inc. (1st Cir. 2000) 212 F.3d 638, 648; Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 950-951.) An employer is not required to make a reasonable accommodation if doing so would impose an undue hardship on him or her. (Cal. Code Regs., tit. 2, §§ 11065, subd. (r) and 11068 [defining “undue hardship”]; Sargent v. Litton Systems, Inc. (N.D. Cal. 1994) 841 F.Supp. 956, 960.) A case-by-case determination is required. (Garcia-Ayala v. Lederle Parenterals, Inc. 212 F.3d at 648.) Patsuris testified that eventually they had to fill the gap caused by Plaintiff’s absence because the staff was having to “juggle” what would normally be his responsibilities and it was straining the company’s resources and placing too big a burden on Summit. The evidence cited by Plaintiff does not establish a discriminatory animus or challenge Summit’s showing that Plaintiff’s continued leave placed an undue burden on the company.

However, Plaintiff presents additional evidence in efforts to raise a triable issue, including so-called “me too” evidence. Various types of circumstantial evidence may be admissible to establish that an employer had discriminatory intent, including evidence showing that the employer discriminated against similarly situated individuals other than plaintiff, thereby establishing a pattern or practice of discrimination against persons in the plaintiff’s protected class. (See McCoy v. Pacific Maritime Assn. (2013) 216 Cal.App.4th 283, 295-298.) Here, Plaintiff cites to several lawsuits filed by other former Summit employees alleging various FEHA violations, including disability discrimination, that were filed in 2017. The lawsuits, however, are nothing more than allegations which the Court cannot accept as true and as evidence that Summit actually engaged in unlawful conduct.

Finally, Plaintiff also challenges Summit’s assertions that he violated company policies relating to credit card usage and work scheduling, arguing that he was simply following the instructions of his supervisor, Nicole Foster, and was impermissibly fired for doing so. (AUMF Nos. 11, 13, 14.) He further argues that allegations that he violated the foregoing policies were pretextual and can be inferred from their timing- shortly after he requested a meeting with management to discuss his lack of accommodations. (AUMF Nos. 20, 33.) Plaintiff correctly notes that evidence of discriminatory intent can be inferred from circumstantial evidence such as temporal proximity between protected activity and an adverse employment action. (See, e.g., Fiat v. North Am. Watch Corp. (1992) 3 Cal.App.4th 467, 478.) Here, Plaintiff’s evidence suggests that he was written up for performance issues shortly after returning from his first disability leave and requesting the aforementioned meeting. Importantly, the act of requesting an accommodation qualifies as a protected activity under the FEHA. (Gov. Code, § 12940, subd. (m)(2).) Plaintiff’s evidence in this regard is sufficient to raise a triable issue regarding the true reasons behind his termination, as a trier of fact could infer pretext from the timing of Summit’s write-up regarding his work performance. Therefore, Defendant’s request for summary adjudication of the fifteenth cause of action for wrongful termination is DENIED.

3. Wage and Hour Claims
4.

a. Failure to Pay Wages (the FLSA)(6th Cause of Action)
b.

In the sixth cause of action, Plaintiff alleges that Defendant, on numerous occasions, permitted him to work in excess of 40 hours per week and failed to pay him overtime wages as required by the federal Fair Labor Standards Act (“FLSA”). Summit asserts that it is entitled to summary adjudication of this cause of action because Plaintiff was an exempt employee, was paid a regular salary and thus was not entitled to overtime pay. (UMF Nos. 39-41, 48.)

The FLSA defines workers’ employment rights under federal law, and makes any “employer” liable for violations of those rights. (29 U.S.C. Chapter 8.) The most common litigated issues under the FLSA have historically been whether employees designated as exempt are being paid on a salaried basis and thus whether they fall within a statutory exemption from overtime and minimum wage laws. (See Chin, Wiseman, Callahan & Exelrod, Cal. Prac. Guide: Employment Litigation (The Rutter Group 2016) ¶ 11:20.) This case is no exception with, as stated above, Summit asserting that Plaintiff was properly classified as an “exempt” employee and therefore was not entitled to overtime pay, while Plaintiff asserts to the contrary.

As for the hours worked, under the FLSA, overtime pay is generally due to all nonexempt employees for all hours worked over 40 hours per week, at the rate of one and one-half times the employee’s regular rate of pay. (29 U.S.C. § 207, subd. (a)(1).) In contrast, under California law, which is relevant to Plaintiff’s seventh cause of action for unpaid wages, overtime pay is due to all nonexempt employees for all hours worked over 8 hours per day up to and including 12 hours in any workday, and for the first eight hours worked on the seventh consecutive day in a workweek. (IWC Wage Orders, 1-2000 through 13-2000, 15-2000; Lab. Code, §§ 510m 551-662.)

The assertion of an exemption from mandatory overtime laws is considered to be an affirmative defense, and therefore the employer bears the burden of proving the employee’s exemption. (Ramirez v. Yosemite Water Co., Inc. (1999) 20 Cal.4th 785, 794-795; Donovan v. Nekton, Inc. (9th Cir. 1983) 703 F.2d 1148, 1151.) Several exemptions exist under both federal and state law that relieve an employer from having to meet statutory minimum wage, overtime and record-keeping requirements. (Chin, Wiseman, Callahan & Exelrod, Cal. Prac. Guide: Employment Litigation (The Rutter Group 2016) ¶ 11:150.) There are three different categories of exempt employees: (1) employees totally exempt from the FLSA; (2) employees exempt from both the FLSA’s minimum wage and overtime pay requirements; and (3) employees exempt from either minimum wage or overtime pay requirements but not both. (Id.) Exemptions are narrowly construed, and related issues present a mixed question of law and fact. (Abshire v. County of Kern (9th Cir. 1990) 908 F.2d 483, 485-486; Myers v. Hertz Corp. (2nd Cir. 2010) 624 F.3d 537, 548.) The question of what duties the employees performed is primarily one of fact, but whether those duties or activities are excluded from the FLSA overtime benefits is a question of law. (Ramos Baldor Specialty Foods, Inc. (2nd Cir. 2012) 687 F.3d 554, 558.) Critically, the FLSA exemptions have limited effect on employment governed by California law because California’s more restrictive rules make it harder to establish an employee’s “exempt” status. (Chin, Wiseman, Callahan & Exelrod, Cal. Prac. Guide: Employment Litigation (The Rutter Group 2016) ¶ 11:155.) Salaried executive, administrative and professional employees are exempt from FLSA’s overtime and minimum wages requirements. (29 U.S.C. 213, subd. (a)(1); Auer v. Robbins (1997) 519 U.S. 452, 456.) Three tests must be satisfied for an employee to be considered exempt under this provision: (1) the “salary basis” test; (2) the “duties” test; and (3) the “salary level” test. (Klem v. County of Santa Clara, Calif. (9th Cir. 2000) 208 F.3d 1085, 1090.)

With regard to the first test, an employee is paid on a salary basis if he or she receives, on a weekly or less frequent basis, “a predetermined amount” of compensation that “is not subject to reduction because of variations in the quality or quantity of the work performed.” (29 C.F.R. § 541.600, subd. (a).) The salary paid is also not dependent on the amount of days or hours worked. (29 C.F.R. § 541.602, subds. (a) and (b).)

Under the second test, the employee’s “primary duty” must be the performance of exempt work (management, administration, professional); the applicable regulations define “primary duty” as the principal, main, major or most important duty that the employee performs, “with major emphasis on the character of the employee’s job as a whole.” (29 C.F.R. § 541.700, subd. (a).) A variety of factors are considered to make this determination, including the amount of time spent performing exempt work, though this is helpful and not definitive. (29 C.F.R. § 541.700, subds. (a) and (b).) Also considered is: the relative importance of the exempt duties as compared to other types of duties; the employee’s relative freedom from direct supervision; and the relationship between the employee’s salary and the wages paid to other employees for the kind of work performed by the employee. (29 C.F.R. § 541.700, subd. (a).) Exempt work for managers, administrators and professionals is defined in greater details (and the determinative factors set forth) in the applicable federal regulations. (29 C.F.R. §§ 541.0- 541.710.)

However, because the federal “primary duty” standard is less protective of the employee, courts in California apply the “primarily engaged in” standard in determining whether state overtime pay requirements apply. (See Pacific Merchant Shipping Assn. v. Aubry (9th Cir. 1990) 918 F.2d 1409, 1426-1427.) FLSA does not preempt California’s application of its overtime pay laws to employees within the state; thus, an employee could conceivably qualify as exempt under FLSA but not under California wage and hour laws. (Id.)

Under the remaining test, the focus is on the particular amount of salary, i.e., the “salary level,” that the employee is compensated at. (Klem v. County of Santa Clara, Calif., supra, 208 F.3d at 1090.)

As with federal law, exemptions from statutory overtime (and mandatory minimum wage) provisions under California law are narrowly construed. (Ramirez v. Yosemite Water Co., Inc., supra, 20 Cal.4th at 794.) As under federal law, persons “employed in an administrative, executive, or professional capacity” are exempt from both the minimum wage and overtime provisions of California law. (Lab. Code, § 515, subd. (a); Cal. Code Regs. § 11010 et seq.)

Here, while Summit proclaims that Plaintiff was an exempt employee and submits evidence that he was salaried starting in August 2013 (prior to that point he was purportedly an independent contractor) (UMF No. 40), it does not discuss in any detail any of the foregoing standards so as to establish how Plaintiff qualified as an exempt employee under the FLSA. In failing to establish Plaintiff’s exempt status, Summit has not met its burden with respect to this claim because the basis of Summit’s request for summary adjudication of this cause of action is that Plaintiff was not entitled to overtime wages due to his employment status.

Summit alternatively asserts that even if Plaintiff was improperly classified, he cannot establish that he worked overtime hours for which he was not compensated. In this vein, Summit is attempting to meet its burden by negating an element of Plaintiff’s claim. A defendant does so by establishing that the plaintiff “does not possess and cannot reasonably obtain, needed evidence.” (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at 854.) Such evidence usually consists of admissions by the plaintiff following extensive discovery to the effect that he or she has discovered nothing to support an essential element of the cause of action, but can also be met by factually-devoid discovery responses where there has been an adequate opportunity for discovery. (Id. at 848; see also Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590.) Critically, however, it is not enough for a defendant to merely show that the plaintiff “has no evidence” on a key element of his or her claim; that defendant must also produce evidence showing the plaintiff cannot reasonably obtain evidence to support that claim. ( (See Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891; see also Zoran Corp. v. Chen (2010) 185 Cal.App.4th 799, 808.) The defendant does not satisfy its burden of proof by producing factually-devoid discovery responses that do not exclude the possibility that the plaintiff may possess or may reasonably obtain evidence sufficient to establish their claim. (Weber v. John Crane, Inc. (2006) 143 Cal.App.4th 1433, 1441-1442.)

Here, Defendant fails to offer evidence which establishes that Plaintiff does not possess, and cannot reasonably obtain, the evidence necessary to establish that he worked unpaid overtime. The materials cited by Summit in this regard primarily consist of the recollections of other Summit employees concerning the hours they observed Plaintiff to have worked. Summit also cites to portions of Garrison’s deposition wherein he testified that he could not specifically recall, at that time, when he arrived in the morning and left in the afternoon/evening on the days that he went to pick up his children at daycare. (UMF Nos. 45, 46.) These materials do not establish Plaintiff’s inability to satisfy the required elements of his claim based on a lack of evidence. Consequently, Summit’s request for summary adjudication of the sixth cause of action is DENIED.

c. Failure to Pay Wages (Labor Code §§ 510, 1194 and Applicable IWC Wage Orders) (7th Cause of Action)
d.

Plaintiff’s seventh cause of action is essentially identical to the preceding claim, with the only difference being that it (for nonpayment of overtime wages) is based on state and not federal law. Both parties rely on the same evidence and arguments as the sixth cause of action, which is logical considering that the analysis regarding employment status is principally the same. Because of this, Summit’s request for summary adjudication of the seventh cause of action is DENIED.

e. Liquidated Damages (Labor Code § 1194.2 and the FLSA) (8th Cause of Action)
f.

In this cause of action, Plaintiff seeks liquidated damages under Labor Code section 1194.2 and the FLSA for Summit’s alleged failure to pay him the overtime wages that he was due under state and federal law. At the outset, although not pointed out by Summit, the Court notes that liquidated damages are not available under California law for failure to pay overtime compensation. (See Lab. Code, § 1194.2, subd. (a) [“In any action … to recover wages because of the payment of a wage less than the minimum wage fixed by an order of the commission or by statute, an employee shall be entitled to recover liquidated damages …. Nothing in this subdivision shall be construed to authorize the recovery of liquidated damages for failure to pay overtime compensation”] [emphasis added].) They are, however, available under the FLSA. (See 29 U.S.C. § 216, subd. (b).) Because summary adjudication of Plaintiff’s underlying claim for failure to pay overtime wages under the FLSA in Summit’s favor is not warranted (see above), summary adjudication of this cause of action is also not appropriate. Therefore, Summit’s request for summary adjudication of the eighth cause of action is DENIED.

g. Failure to Provide Meal and Rest Periods (Labor Code §§ 226.7, 512 and Applicable IWC Wage Orders) (9th Cause of Action)
h.

This claim is based on allegations that Summit failed to provide Plaintiff with the meal and rest periods that he was entitled to under state law. Summit asserts that summary adjudication of this cause of action is appropriate because Plaintiff was provided with every meal and rest break that he was entitled to.

Under Labor Code section 512, subdivision (a) (barring specific exceptions), employees who work more than five hours in a day are entitled to a meal period of at least 30 minutes, and a second meal period of at least 30 minutes if they work more than 10 hours. (See Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1041-1042.) Because the right to a meal period is a nonwaivable statutory right, an employer may not require an employee to work during the meal period mandated by state law. (Lab. Code, § 226.7, subd. (b); Franco v. Athens Disposal Co., Inc. (2009) 171 Cal.App.4th 1277, 1294.) An employer who fails to provide a required meal period must pay the employee one additional hour of pay at the employee’s regular rate of pay for each work day the meal period was not provided. (Lab. Code, § 226.7, subd. (c).) The employer is not required to ensure that no work is performed during the meal break, and fulfills its obligations as long as it relieves the employee of all duties. (Brinker, supra, 53 Cal.4th at 1034-1041.) The employer is not liable if the employee chooses to work, but will be liable if it knew or reasonably should have known the employee was working during the meal period. (Id.)

With regard to rest periods, employers in California generally must provide rest periods of a specified minimum duration- 10 minutes for every four hours worked. (Lab. Code, § 226.7, subd. (d); Cal. Code Regs. §§ 11010-11150, ¶ 12 and 11160, ¶ 11.) These periods are to be permitted in the middle of the shift “insofar as practicable.” (8 Cal. Code Regs. § 11010-11150, ¶ 12(A).) No employer may require an employee to work during any rest or recovery period mandated by state law. (Lab. Code, § 226.7, subd. (b).) An employer who fails to provide rest periods must pay the employee one additional hour of pay at the employee’s regular rate for each day a rest period was not provided. (Lab. Code, § 226.7, subd. (c).)

Here, Summit maintains that Defendant was provided with all of the required meal and rest breaks. In support of this contention, it cites to the following: a copy of Summit’s employee handbook which contained the statutorily compliant meal break policy and was provided to Plaintiff (Summit’s Evid., Exhibits 11, 18, 89); testimony from Timothy Sinnot in which he explained that he would advise Summit employees that they need to take their meal and rest breaks based on the hours worked (Id., Exhibit 29); and testimony from Ponomarenko (UMF No. 43). Plaintiff disputes Summit’s contentions, and submits evidence demonstrating that no one ensured that he took the meal and rest breaks to which he was entitled and that Summit did not have a place onsite that permitted employees to obtain client separation so as to provide them with uninterrupted breaks. (UMF Nos. 12, 13.)

The Court finds that the evidence submitted by Summit is insufficient to establish that it provided Plaintiff with a reasonable opportunity to take the uninterrupted meal and rest breaks to which he was entitled. Sinnot’s testimony discussed meal and rest breaks generally, and not those relating specifically to Plaintiff. Further, merely because Plaintiff was provided with Summit’s handbook and its meal and rest break policies does not establish that he was actually permitted to take those breaks. Consequently, Summit’s request for summary adjudication of the ninth cause of action is DENIED.

i. Waiting Time Penalties (Labor Code §§ 201, 202 and 203) (10th Cause of Action)
j.

In the tenth cause of action, Plaintiff seeks waiting time penalties for Summit’s alleged failure to pay him full compensation for all hours worked (overtime and wages/premiums due for meals breaks and rest periods that were not provided) upon his discharge from his employment. Defendant argues that this claim fails because Plaintiff was not owed any additional compensation and even if there is a dispute as to whether he is, it is a good faith dispute and therefore it did not “willfully” withhold from Defendant compensation that he was owed.

If an employer “willfully” fails to pay wages when due to an employee who is discharged or quits, the employee’s wages continue at the same rate until paid or until suit is filed, but not for more than 30 days. (Lab. Code, § 203; Mamika v. Barca (1998) 68 Cal.App.4th 487, 492.) Unpaid wages are due immediately upon discharge or within 72 hours after resignation. (Lab. Code, §§ 201 and 202.) “Willful” means the employer intentionally failed or refused to pay a wage obligation that was due. (Baker v. American Horticulture Supply, Inc. (2010) 186 Cal.App.4th 1059, 1076.) The term does not require a showing that the employer knew of its obligation and intentionally refused to act. (Id.) A good faith dispute that any wages are due “will preclude imposition of waiting time penalties under [Labor Code] Section 203.” (8 Cal. Code Regs, § 13520.) This cause of action is necessarily tethered to the preceding claims for failure to pay overtime wages and failure to provide meal breaks and rest periods. As summary adjudication of both of those claims is not warranted, it follows that Summit’s request for summary adjudication of the tenth cause of action is DENIED.

k. Failure to Provide Accurate Wage Statement (Labor Code § 226, subs. (a) and (c)) (11th Cause of Action)
l.

In the eleventh cause of action, Plaintiff alleges that Defendant failed to provide him with accurate wage statements because those provided to him did not accurately reflect the actual hours worked or wages earned (due to overtime and meal break/rest period wages that were not paid). Defendant advances the same arguments in support of its request for adjudication of this cause of action as it did for the underlying claims for failure to pay overtime wages and to provide rest and meal breaks.

Under California law, various types of information must be furnished on a pay stub when wages are paid to an employee, including, among other things, the applicable hourly rate and total hours worked. (Lab. Code, § 226, subd. (a); Morgan v. United Retail Inc. (2010) 186 Cal.App.4th 1136, 1146.) If an employer fails to provide a wage statement, provides one that is inaccurate, or provides one that makes it difficult for an employee to determine certain information (e.g., amount of gross wages or net wages paid), an employee is deemed to suffer an injury. (Lab. Code, § 226, subd. (e)(2).) An aggrieved employee may obtain injunctive relief, and if the employer’s violation is “knowing and intentional,” also the greater of all actual damages of $50 for the initial pay period in which a violation occurs and $100 per employee for each violation in a subsequent pay periods, not exceeding an aggregate penalty of $4,000. (Lab. Code, § 226, subd. (e)(2).)

This cause of action, like the preceding claim, is predicated on Plaintiff’s claims for failure to pay overtime wages and failure to provide meal breaks and rest periods, with him alleging that the wage statements he received did not accurately reflect the amount of hours he worked. As summary adjudication of both of those claims is not warranted, it follows that Summit’s request for summary adjudication of the eleventh cause of action is DENIED.

m. Civil Penalties (Labor Code § 558) (12th Cause of Action)
n.

In the twelfth cause of action, Plaintiff seeks civil penalties for violation of various regulations (Labor Code and IWC Wage Orders) regarding hours worked. Under Labor Code section 558, an employer or other person acting on their behalf who violates any Labor Code provision or IWC order regulating hours and days of work is subject to a civil penalty of $50 for any initial violation and $100 for each subsequent violation “for each underpaid employee for each pay period for which the employee was underpaid in addition to an amount sufficient to recover unpaid wages.” (Lab. Code, § 558, subd. (a)(1) and (2).) Wages recovered pursuant this code section are to be paid to the affected employee. (Lab. Code, § 558, subd. (a)(3).)

This cause of action is predicated on Plaintiff’s claims for failure to pay overtime wages, failure to provide meal breaks and rest periods, failure to pay regular wages within the applicable time period and failure to provide an accurate wage statement. (Complaint, ¶ 143.) As summary adjudication of those claims is not warranted for the reasons articulated above, it follows that Summit’s request for summary adjudication of this cause of action is DENIED.

o. PAGA (Labor Code § 2628 et seq.) (13th Cause of Action)
p.

In the thirteenth cause of action, Plaintiff seeks to recover penalties under the Private Attorneys General Act (“PAGA”). PAGA permits an aggrieved employee to bring a civil action personally and on behalf of other current or former employees to recover civil penalties for Labor Code violations. (Iskanian v. CLS Transp. Los Angeles, LLC (2014) 59 Cal.4th 348, 380.) 75 percent of any penalties recovered go to the Labor and Workforce Development Agency (“LWDA”), leaving the remaining 25% for the employee(s). (Id.) PAGA is intended “to augment the limited enforcement capability of [LWDA] by empowering employees to enforce the Labor Code as representatives of the Agency.” (Id. at 383.)

This claim is predicated on all of the preceding claims which allege that Summit violated portions of the Labor Code. Because Plaintiff is not entitled to summary adjudication of all of those claims, it follows that Summit’s request for summary adjudication of this cause of action is DENIED.

5. Violations of the UCL (14th Cause of Action)
6.

Finally, in the fourteenth cause of action, Plaintiff alleges that Defendant has committed acts of unfair competition as defined by the Unfair Business Practices Act (“UCL”), i.e., “any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising and any act prohibited by [California’s false advertising law].” (Bus. & Prof. Code, § 17200.) “Because section 17200 is written in the disjunctive, a business act or practice need only meet one of the three criteria- unlawful, unfair, or fraudulent- in order to be considered unfair competition under the UCL.” (Buller v. Sutter Health (2008) 160 Cal.App.4th 981, 986.)

Here, Plaintiff’s UCL claim is based on the “unlawful prong,” which “borrows violations of other laws … and makes those unlawful practices actionable under the UCL.” (Klein v. Chevron U.S.A., Inc. (2012) 202 Cal.App.4th 1342, 1383.) Violation of almost any law, federal or state, may serve as a sufficient predicate for a claim under the UCL’s “unlawful” prong. (Id.) However, violations of the common law (e.g., breach of contract, common law fraud) are insufficient. (See Shroyer v. New Singular Wireless Servs., Inc. (9th Cir. 2010) 622 F.3d 1035, 1044.) The laws upon which this claim is based include the FLSA, various provisions of the Labor Code and FEHA. However, given that Defendant is not entitled to summary adjudication of all of his claims asserting violations of these laws, it follows that it is not entitled to adjudication of this claim in its favor. Thus, Summit’s request for summary adjudication of the fourteenth cause of action is DENIED.