Case Name: Brian McMahon v. North County Regional Occupational Program (ROP), et al.
Case No.: 2015-1-CV-285449

Motion for Summary Judgment, or in the Alternative, Summary Adjudication to the Complaint by Defendants North County Regional Occupational Program (ROP) and Fremont Union High School District

Factual and Procedural Background

This is an employment action based on various Labor Code violations. In November 2013, plaintiff Brian McMahon (“Plaintiff”) was hired as a full-time Automotive Instructor by defendants North County Regional Occupational Program (“ROP”) and Fremont Union High School District (“District”) (collectively, “Defendants”). (See Complaint at p. 2.) Shortly after being hired, Plaintiff learned that he was replacing a teacher that Defendants had terminated for engaging in inappropriate sexually explicit conduct with his underage students. (Ibid.) Plaintiff became aware that the former instructor continued to have inappropriate conduct with the students and reported this behavior to the school principal. (Id. at pp. 2-3.) However, the principal did not take the matter seriously. (Id. at p. 3.) Thus, Plaintiff contacted the local police department and informed them that the former instructor continued to have inappropriate conduct with the minor students during class time. (Ibid.) The police department contacted the school principal about Plaintiff’s report. (Ibid.) The principal then told Plaintiff that “you should not have done that.” (Ibid.) Following Plaintiff’s report to the police, Plaintiff alleges that the school principal was no longer supportive of his continued employment with the District. (Id. at p. 4.) Plaintiff further alleges that he was denied overtime wages, that Defendants failed to maintain accurate employment records, and Defendants misrepresented the nature of his employment to prevent Plaintiff from obtaining future employment. (Id. at pp. 5, 6, 7, 11.)

On September 10, 2015, Plaintiff filed the operative Complaint against setting forth claims for violations under Labor Code sections 1102.5, 98.6, 226, and 1050.

Motion for Summary Judgment, or in the Alternative, Summary Adjudication to the Complaint

Currently before the Court is Defendants’ motion for summary judgment, or in the alternative, summary adjudication to the Complaint on the ground that no triable issue of material fact exists. (Code Civ. Proc., § 437c.) Plaintiff filed written opposition. Defendants filed reply papers. Trial is set for January 8, 2018.

Oversized Memorandum

As an initial matter, Plaintiff has filed an oversized memorandum in violation of California Rules of Court, rule 3.1113(d). In a summary judgment motion, no opening or responding memorandum may exceed 20 pages. (Cal. Rules of Court, rule 3.1113(d).) A memorandum that exceeds the page limits of these rules must be filed and considered in the same manner as a late-filed paper. (Cal. Rules of Court, rule 3.1113(g).)

Here, Plaintiff’s opposition papers are approximately 24 pages in length. There is nothing in the court file to indicate that Plaintiff made application to the court to file a longer memorandum in compliance with California Rules of Court, rule 3.1113(e). However, Defendants have not raised any objection to the lengthy papers and there appears to be no prejudice. Thus, the Court will address the opposition on its merits. Plaintiff is admonished to comply with court rules and procedures with respect to future filings.

Motion for Summary Adjudication

As a preliminary matter, Defendants’ notice of motion makes an alternative request for summary adjudication. “If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and repeated verbatim, in the separate statement of undisputed material facts.” (Cal. Rules of Court, rule 3.1350(b).) “If a party desires adjudication of particular issues or subissues, that party must make its intentions clear in the motion… [Citation]. There is a sound reason for this rule: ‘… the opposing party may have decided to raise only one triable issue of fact in order to defeat the motion, without intending to concede the other issues. It would be unfair to grant a summary adjudication order unless the opposing party was on notice that an issue-by-issue adjudication might be ordered if summary judgment was denied.’ [Citation.]” (Gonzalez v. Super. Ct. (1987) 189 Cal.App.3d 1542, 1546.)

Here, the notice of motion does not provide Plaintiff or the Court with notice of the specific causes of action or issues that Defendants intend to summarily adjudicate. Instead, the notice sets forth only arguments raised in support of the motion for summary judgment. Therefore, there is no basis for a motion for summary adjudication and the Court treats the present application as a motion for summary judgment.

Legal Standard

“Summary judgment is properly granted when no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. A defendant moving for summary judgment bears the initial burden of showing that a cause of action has no merit by showing that one or more of its elements cannot be established or that there is a complete defense. Once the defendant has met that burden, the burden shifts to the plaintiff ‘to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.’ ‘There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.’” (Madden v. Summit View, Inc. (2008) 165 Cal.App.4th 1267, 1272 [internal citations omitted].)

Motion for Summary Judgment as to Defendant District

As a threshold matter, the moving parties argue that an order for summary judgment with respect to defendant District is appropriate as only ROP was Plaintiff’s employer. In support, Defendants submit a declaration signed under penalty of perjury from Graham Clark (“Clark”), the Associate Superintendent for Administrative Services within the District. According to his declaration, Clark provides the following:

“Defendant ROP is a separate public entity from the District. ROP is a branch of the Joint Powers Authority of Defendant District, Mountain View Los Altos Unified School District, and Palo Alto Unified School District. Functionally, this distinction means that Plaintiff’s employer was the ROP, not the District.”

(See Defendants’ Separate Statement of Undisputed Facts at No. 6 [Clark Declaration at ¶ 4].)

In opposition, Plaintiff contends that Defendants were in a joint employer relationship with him. In Martinez v. Combs (2010) 49 Cal.4th 35, cited by Plaintiff, the California Supreme Court held that, to “employ” means (1) “to exercise control over…wages, hours or working conditions,”; (2) “to suffer or permit to work”; or (3) “to engage, thereby creating a common law employment relationship.” (Id. at p. 64.) “Any of the three is sufficient to create an employment relationship.” (Ochoa v. McDonald’s Corp. (N.D. Cal. 2015) 133 F.Supp.3d 1228, 1233.) Here, Plaintiff provides evidence that (1) Defendants were jointly involved in the interview process to hire him; (2) the District conducted performance evaluations of his employment; and (3) the District was ultimately involved in the process to terminate his employment. (See Plaintiff’s Disputed Facts at No. 6; Plaintiff’s Declaration at ¶¶ 5, 6, 8, 15, 19, 20, 29, 42, 46; Plaintiff’s Depo at pp. 26-27.) Based on this evidence, a trier of fact may conclude that Defendants had an employment relationship with the Plaintiff. Therefore, the Court finds that a triable issue of fact remains as to whether the District was Plaintiff’s employer.

Labor Code Section 98.6

The operative Complaint includes a cause of action under Labor Code section 98.6. That section provides in pertinent part that: “A person shall discharge an employee or in any manner discriminate, retaliate, or take any adverse action against any employee or applicant for employment because the employee or applicant engaged in any conduct delineated in this chapter, including…because the employee or applicant for employment…made a written or oral complaint that he or she is owed unpaid wages.” (Lab. Code, § 98.6, subd. (a).)
With respect to this cause of action, Plaintiff alleges that Defendants agreed to pay him overtime wages if he would clean up the shop after hours and on the weekend. (See Complaint at p. 5.) Plaintiff claims that he came in to work early, stayed late at night and worked on weekends cleaning, organizing and performing repairs to the classroom. (Ibid.) Plaintiff submitted detailed time sheets for his labor and submitted receipts for the tools and supplies to the school principal. (Ibid.) While Plaintiff alleges that he was reimbursed for his expenses, he contends that Defendants failed to pay him overtime wages. (Id. at pp. 5-6.) As a result, Plaintiff contacted the Labor Commissioner’s office and filed a complaint against the District to recover unpaid wages. (Id. at p. 6.)

On summary judgment, Defendants argue that there is no claim under Labor Code section 98.6 because the ROP paid Plaintiff for all of the approved overtime hours. In support, Defendants relies on a portion of the Complaint where Plaintiff alleges the following: “Plaintiff complained to the Principal’s superior for reimbursement of expenses and over the objection of the Principal, was finally paid for all the expenses incurred in performing the overtime.” (See Complaint at p. 6:17-21; see also Myers v. Trendwest Resorts, Inc. (2009) 178 Cal.App.4th 735, 746 [“In moving for summary judgment, a party may rely on the doctrine of judicial admission by utilizing allegations in the opposing party’s pleadings to eliminate triable issues of material fact.”].) Defendants also rely on an excerpt from Plaintiff’s deposition testimony where the following exchange occurred between Plaintiff and counsel:

Q: “So you’re saying you got paid for some overtime but not all the overtime?

A: They paid for all of it…”

(See Separate Statement of Undisputed Facts at No. 46 [Plaintiff’s Depo at p. 65: 23-25].)

The Complaint however does not conclusively dispose of Plaintiff’s claim for failure to pay overtime wages. The portion cited from the Complaint refers to payment of overtime expenses incurred by the Plaintiff. It does not address whether Defendants failed to pay overtime wages to the Plaintiff. In fact, the pleading would suggest otherwise as Plaintiff ultimately filed a complaint with the Labor Commissioner’s office to recover unpaid wages. (See Complaint at p. 6:22-23.) Plaintiff admits in opposition that he notified the Labor Commissioner that he was going to pursue his overtime claim in court as a civil claim along with his other Labor Code violations. (See Plaintiff’s Disputed Fact at No. 46 [Plaintiff’s Declaration at ¶ 47].)

In addition, other portions of Plaintiff’s deposition testimony indicate that he was not paid all of his overtime wages. (See Price v. Wells Fargo Bank (1989) 213 Cal.App.3d 465, 482 [overruled on other grounds in Riverisland Cold Storage, Inc. v. Fresno-Madera Production Credit Assn. (2013) 55 Cal.4th 1169, 1179] [a summary judgment should not be based on tacit admissions or fragmentary and equivocal concessions]; Scheiding v. Dinwiddie Const. Co. (1999) 69 Cal.App.4th 64, 77-78 [same].) For example, the following exchange occurred between Plaintiff and counsel:
Q: “Was there a certain point in time that you no longer were paid for overtime?

A: At some point in time. That’s correct.

Q: Do you recall approximately when that was?

A: I’d say early Spring.”

(See Plaintiff’s Declaration at Exhibit 28 [Plaintiff’s Depo at p. 66:8-12].)

Moreover, Plaintiff reiterates in his declaration that, after the school principal failed to rehire him, that he refused to pay Plaintiff any of his accumulated overtime. (See Plaintiff’s Disputed Fact at No. 46 [Plaintiff’s Declaration at ¶¶ 13-14].) Based on this evidence, a trier of fact may conclude that Defendants failed to pay overtime wages to Plaintiff in support of his claim under Labor Code section 98.6. Since there is a triable issue of fact with respect to this cause of action, the motion for summary judgment must be denied. (See Gleason v. Klamer (1980) 103 Cal.App.3d 782 [appellate court reversed trial court’s order granting summary judgment because there was a single triable issue of fact].)

Disposition

The motion for summary judgment is DENIED.