Case Number: GC047856 Hearing Date: April 11, 2014 Dept: NCD

Defendants Yum! Brands, Inc. and Pizza Hut Inc’s Motion for Summary Judgment, or, in the Alternative, Summary Adjudication on Plaintiff Cristobel Lopez’s Third Amended Complaint

Defendants Yum! Brands, Inc. and Pizza Hut Inc’s Motion for Summary Judgment, or, in the Alternative, Summary Adjudication on Plaintiff Dimas Rodriguez’s Third Amended Complaint

Defendants Yum! Brands, Inc. and Pizza Hut Inc’s Motion for Summary Judgment, or, in the Alternative, Summary Adjudication on Plaintiff La’Mon Hazzard’s Third Amended Complaint

Defendants Yum! Brands, Inc. and Pizza Hut Inc’s Motion for Summary Judgment, or, in the Alternative, Summary Adjudication on Plaintiff Charlie Rodriguez’s Third Amended Complaint

TENTATIVE:
Motion for summary judgment is DENIED.
Motion for summary adjudication is GRANTED in part and DENIED in part as follows:

1.) As to defendant Yum Brands, Inc.
The motions are GRANTED as to each cause of action asserted against Yum Brands, Inc. by each defendant on the ground that plaintiffs cannot establish that Yum Brands, Inc. employed them.
The moving papers here establish that Yum is the parent company of PHI, that Yum provides certain payroll services to PHI, but does not direct day to day operations and does not control or direct hiring, termination or personnel decisions of PHI, or direct the way it markets, produces or sells its products. [UMF Nos. 1-7, and evidence cited].
The opposition fails to submit admissible evidence which would raise triable issues of material fact which would support a finding that Yum is responsible for any employment conduct engaged in by any other defendant, in connection with which plaintiffs seek relief.

2.) As to defendant Pizza Hut ,Inc.
The motions as to the First Cause of Action—Discrimination and Third Cause of Action—Harassment are GRANTED for failure of plaintiffs Hazzard, Rodriguez and Rodriguez, Jr. to timely exhaust their administrative remedies under FEHA. It is established that defendant PHI sold the restaurant to SCPC pursuant to a Location Franchise Agreement, and that PHI then terminated all of its employees, including plaintiffs, on August 24, 2009. [UMF No. 20, and evidence cited]. Some of those employees were then hired by SCPC, but PHI has since exercised no control over personal decisions, hired, evaluated, disciplined, set wages, maintained payroll or implemented employment policies. [UMF Nos. 21-29, and evidence cited]. Accordingly, any complaint about any conduct for which PHI would be responsible was required to have been filed, at the latest, by one year later, on or before August 24, 2010. PHI also presents evidence that Rodriguez, Jr.’s employment with PHI ended around August 5, 2009, but that he did not file a complaint until August 4, 2011. [UMF Nos. 101-103]. Hazzard was terminated on August 24, 2009, along with the other employees, filled out a new employment application to be hired by SCPC, and did not file a complaint with FEHA until August 4, 2011. [UMF Nos. 201-203]. Rodriguez was also terminated August 24, 2009, but his complaint was not filed until August 4, 2011. [UMF Nos. 301-303]. The opposition does not present any evidence establishing that PHI remained the employer, or that some other complaint was filed preserving plaintiffs’ rights under FEHA. In addition, defendants have established that plaintiffs Rodriguez and Rodriguez, Jr. did not make any allegations in their administrative complaints that they suffered adverse actions because of protected traits under FEHA. [See UMF Nos. 104 and 304, and evidence cited]. Finally, plaintiff Hazzard will be unable to establish that he suffered any adverse employment action as a result of any alleged FEHA violations.

The motions as to the Ninth Cause of Action for Wrongful Termination as to plaintiffs Rodriguez and Rodriguez Jr. are GRANTED. Plaintiffs have failed to establish a prima facie case of wrongful termination. Defendants have nevertheless come forward with evidence that Rodriguez was terminated for a legitimate nondiscriminatory reason, in effect, that PHI no longer operated the restaurant, and terminated all employees. [UMF No. 20]. With respect to Rodriguez, Jr., the moving papers establish he was terminated based on violations of PHI’s cash control policies, a legitimate business purpose. [UMF Nos. 136-143, and evidence cited]. Plaintiffs have failed to submit admissible evidence to show that defendant’s explanations for the terminations are a mere pretext for illegal termination.

The motions as to the Eleventh Cause of Action for IIED asserted by plaintiffs Rodriguez, Rodriguez, Jr. and Hazzard are GRANTED as the claims are barred by the workers’ compensation preemption. See Vasquez v. Franklin Management Real Estate Fund, Inc. (2013, 2nd Dist.) 222 Cal.App.4th 819, 832-833. Defendants have also established that plaintiffs Rodriguez and Rodriguez, Jr. would in any event be unable to establish conduct sufficiently outrageous to support such a claim and that as to all three plaintiffs, they will be unable to establish severe emotional distress. [See UMF Nos. 142, 144, 145, 217-219, 312, and evidence cited ].

The motions as to the Fourth Cause of Action for Unpaid Wages, Sixth Cause of Action for Failure to Provide Meal Periods, Seventh Cause of Action for Failure to Provide Rest Periods, and Eighth Cause of Action for Overtime Wages are DENIED. The moving papers submit deposition testimony from plaintiffs from which a reasonable inference can be drawn that plaintiffs were not provided with all meal and rest periods, but were actively discouraged from taking meal periods and rest periods, and that they are prepared to provide testimony that they have each performed work which was improperly compensated, or that time entries were changed in a manner that was not legitimate. [See Exhibits B, C, D, E ]. In addition, it can be inferred from that testimony, as well as the declarations submitted, that the supervisory agents of the employer were aware of the practice [See, eg. Rodriguez Decl., paras. 5, 6]. Triable issues remain with respect to these causes of action.

The motions as to the requests for punitive damages are GRANTED pursuant to Brewer v. Premier Golf Properties, L.P. (2008)168 Cal.App.4th 1243, 1252 (“punitive damages are not recoverable when liability is premised solely on the employer’s violation of the Labor Code statutes that regulate meal and rest breaks, pay stubs, and minimum wage laws.”).

BACKGROUND:
MOVING PARTY: Defendants Yum! Brands, Inc. and Pizza Hut, Inc.

RESPONDING PARTY: Plaintiff Cristobal Lopez
Plaintiff Dimas Rodriguez
Plaintiff La’Mon Hazzard
Plaintiff Charlie Rodriguez

RELIEF REQUESTED:
Summary judgment in favor of defendants
In the alternative, summary adjudication of issues

CAUSES OF ACTION: from Third Amended Complaint
1) Discrimination
2) Retaliation **
3) Harassment
4) Failure to pay wages
5) Failure to furnish wage stubs *
6) Failure to provide rest periods
7) Failure to provide meal breaks
8) Failure to pay overtime
9) Wrongful Termination
10) Negligent Supervision and Retention**
11) IIED

*Demurrer sustained without leave to amend as to moving defendants 3/1/13
**Demurrer sustained without leave to amend as to moving defendants 5/24/13

FACTUAL BACKGROUND:
Plaintiffs, who were originally in pro per, but then retained counsel, and are now again in pro per, bring this action against defendants Yum Brands Corporation, Pizza Hut Corporation and Southern California Pizza Corporation, alleging that while plaintiffs were employees at Yum Brands and Pizza Hut, defendants’ agents, Dong Nguyen, a general store manager, and Edgar Toc, an area coach, engaged in racist and abusive conduct toward plaintiffs, by making racial comments, treating plaintiffs differently because they were not Asian, and depriving them of employment compensation or benefits, or retaliating against them, or terminating them, because of race or ethnicity.

It is also alleged that defendants failed to pay appropriate wages and overtime, provide breaks and meal periods, and that defendants engaged in wrongful conduct such as instructing defendants to clock out before their shifts were over, depriving them of earned wages.
ANALYSIS:
Procedural
In response to the motions, plaintiffs have failed to file separate statements responding to defendants’ separate statements. CCP §437c(b) sets forth the specific requirements for opposition papers, including the requirement of the filing of a separate statement of material facts. This subdivision provides: “Failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court’s discretion, for granting the motion.” In the exercise of the Court’s discretion as expressly permitted by CCP §437c(b), the Court will nonetheless consider the opposition papers in determining the motions.

Substantive
Under CCP §437(o), a defendant has the burden of showing that one or more elements of the cause of action cannot be established. Once the defendant has met this burden, the burden shifts to the plaintiff to show a triable issue of material facts exists.

Defendants seek to establish that each plaintiff will be unable to establish each remaining claim as against each of the moving defendants.

Yum Brands, Inc.—No Employment Relationship
Defendants argue that as to each of the plaintiffs, the claims asserted against Yum are not proper because plaintiffs cannot provide any evidence that Yum employed them. The argument is that Yum, as the parent company of PHI, is not responsible for the employment of PHI’s employees. Under Laird v. Capital Cities (1998) 68 Cal.App.4th 727, a certain showing is required to establish liability as an employer on the part of a corporate parent:
“Under both California and federal law, an “employer” includes any agent of an employer. (42 U.S.C. § 2000e(b); Gov. Code, § 12926, subd. (d).) An agent, under California law, is “one who represents another, called the principal, in dealings with third persons.” ( Civ. Code, § 2295.)

However, to establish a parent corporation’s liability for acts or omissions of its subsidiary on an agency theory, a plaintiff must show more than mere representation of the parent by the subsidiary in dealings with third persons. The showing required is that “a parent corporation so controls the subsidiary as to cause the subsidiary to become merely the agent or instrumentality of the parent[.]” ( Linskey v. Heidelberg Eastern, Inc. (E.D.N.Y. 1979) 470 F. Supp. 1181, 1184, italics added; see E.E.O.C. v. Upjohn Corp. (N.D.Ga. 1977) 445 F. Supp. 635, 639.) On this record, which we have discussed above, there is no showing that Cap Cities exercised any control over Sutton’s employment decisions. To the contrary, the undisputed evidence showed that Sutton conducted its own employment decisions free of control by Cap Cities. Sutton is not Cap Cities’ agent.”
Laird, at 741.

The moving papers here establish that Yum is the parent company of PHI, that Yum provides certain payroll services to PHI, but does not direct day to day operations and does not control or direct hiring, termination or personnel decisions of PHI, or direct the way it markets, produces or sells its products. [UMF Nos. 1-7, and evidence cited].

The opposition papers submit unauthenticated exhibits purporting to show that Yum has been named in previous class action lawsuits making similar allegations of pay irregularities [Ex. I] , as well as statements in the declaration of plaintiff Hazzard that although he still works for Pizza Hut, technically he is employed by Yum, “because they have Exclusive Rights as the whole owner of Pizza Hut.” [Hazzard Decl., para. 3]. Hazzard has established no foundation for such a statement, and under Laird the fact of total ownership alone is not sufficient without facts establishing control. The motion is therefore granted in favor of Yum Brands as to all causes of action.

First Cause of Action—Discrimination and Third Cause of Action—Harassment
Failure to Exhaust Administrative Remedies
PHI then argues that the first cause of action for discrimination and third cause of action for harassment by plaintiffs Hazzard, Rodriguez and Rodriguez, Jr. (the cause of action is not pending by Lopez) fail because these parties failed to timely exhaust their administrative remedies.

Under Romano v. Rockwell International, Inc. (1996) 14 Cal.4th 479, a civil action cannot be brought for violation of FEHA without a notice of right to sue, and this requirement is considered jurisdictional:
“Under the FEHA, the employee must exhaust the administrative
remedy provided by the statute by filing a complaint with the Department of Fair
Employment and Housing (Department) and must obtain from the Department a notice
of right to sue in order to be entitled to file a civil action in court based on
violations of the FEHA. The timely filing of an administrative
complaint is a prerequisite to the bringing of a civil action for damages under
the FEHA.”
Romano, at 492 (citations omitted). See also Okoli v. Lockheed Technical Operations Co. (1995) 36 Cal.App.4th 1607.

With certain exceptions not invoked by plaintiffs here, a complaint must be filed within one year from the date upon which the alleged unlawful practice occurred. Gov. Code § 12960(d) (“ No complaint may be filed after the expiration of one year from the date upon which the alleged unlawful practice or refusal to cooperate occurred.”)

The argument here is that defendant PHI sold the restaurant to SCPC pursuant to a Location Franchise Agreement, and that PHI then terminated all of its employees, including plaintiffs, on August 24, 2009. [UMF No. 20, and evidence cited]. Some of those employees were then hired by SCPC, but PHI has since then exercised no control over personal decisions, hired, evaluated, disciplined, set wages, maintained payroll or implemented employment policies. [UMF Nos. 21-29, and evidence cited]. Accordingly, any complaint about any conduct for which PHI would be responsible was required to have been filed, at the latest, by one year later, on or before August 24, 2010. PHI also presents evidence that Rodriguez, Jr.’s employment with PHI ended around August 5, 2009, but that he did not file a complaint until August 4, 2011. [UMF Nos. 101-103]. Hazzard was terminated on August 24, 2009, along with the other employees, filled out a new employment application to be hired by SCPC, and did not file a complaint with FEHA until August 4, 2011. [UMF Nos. 201-203]. Rodriguez was also terminated August 24, 2009, but his complaint was not filed until August 4, 2011. [UMF Nos. 301-303].

The opposition does not present any evidence establishing that PHI remained the employer, or that some other complaint was filed preserving plaintiffs’ rights under FEHA. The motion is therefore granted as to PHI against all three plaintiffs’ causes of action.

Defendants also argue that Rodriguez and Rodriguez, Jr. did not make any allegations in the complaint that they suffered adverse actions because of protected traits under FEHA. [See UMF Nos. 104 and 304, and evidence cited]. The motion is therefore granted as to those parties on this ground as well.

Failure to Establish Elements
Defendants also argue that the discrimination claim fails as to plaintiff Hazzard as he cannot establish an adverse employment action or that any conduct was sufficiently pervasive to constitute racial harassment.

To establish a prima facie case of discrimination, plaintiff must prove:
(a) He was a member of a protected class,
(b) He was performing competently in the position he held,
(c) He suffered an adverse employment action, and
(d) The action was as a result of animus toward his national origin.
Guz v. Bechtel National, Inc (2000) 24 Cal. 4th 317, 355.

In general, a claim for discrimination under FEHA is limited to claims where a plaintiff has been “disqualified from entering or pursuing” his employment, which courts have construed to mean that such a claim may only be made where an individual is denied entrance into or is terminated from a particular employment, and may not be based on conduct which is limited to particular aspects of an individual’s job. Strother v. Southern California Permanente Medical Group (9th Cir. 1996) 79 F.3d 859, 871-872 (applying California law). As defendants argue, it is held that an employer engages in an adverse employment action only if its conduct has a “substantial and material adverse effect on the terms and conditions of the plaintiff’s employment.” Pinero v. Specialty Restaurant Corp. (2005) 130 Cal.App.4th 635, 641.

The evidence here shows only that Hazzard was assigned less desirable tasks, and he is in fact still employed by the franchise, so the discrimination claim is not supported by a showing of a sufficiently severe adverse employment action.

As to harassment, however, this is not a particularly persuasive argument as to Hazzard as the deposition testimony of Hazzard attached to the moving papers supports a reasonable inference that he was assigned less desirable tasks than other employees, and was repeatedly referred to by his supervisor as “my monkey.” [See Ex. E, Hazzard Depo.]. The motion is not granted on this ground.

Ninth Cause of Action—Wrongful Termination
Defendants seek to summarily adjudicate these causes of action which have been brought by plaintiffs Rodriguez and Rodriguez, Jr.
These claims are not based on FEHA, so are not barred, as are the other claims, for failure to exhaust administrative remedies.

Under California Constitution, Article I, § 8, a “person may not be disqualified from entering or pursuing a business, profession, vocation, or employment because of sex, race, creed, color, or national or ethnic origin.”

Under California law, the burdens are well established with respect to showing wrongful termination based on discrimination. First, it is plaintiff’s burden to prove by a preponderance of the evidence a prima facie case of discrimination. The burden then shifts to defendant to provide some legitimate nondiscriminatory reason for its employment decision. If defendant carries this burden, the burden then shifts back to plaintiff to show, by a preponderance of the evidence, that legitimate reasons offered by defendant were not its true reasons but a pretext for discrimination. Guz v. Bechtel National, Inc (2000) 24 Cal. 4th 317, 355-356; Heard v. Lockheed Missiles & Space Co. (1996) 44 Cal.App.4th 1735.

To establish a prima facie case of discrimination, plaintiff must prove:
(a) He was a member of a protected class,
(b) He was performing competently in the position he held,
(c) He suffered an adverse employment action, and
(d) The action was as a result of animus toward his national origin.
Guz, at 355.

Here, plaintiffs have failed to establish any prima facie case of discrimination, including that they were members of a protected class, performing competently, or that there was any animus toward the protected class. Defendant therefore has no burden to establish a legitimate, non-retaliatory explanation for its acts.

Nevertheless, defendants have come forward with evidence that Rodriguez was terminated for a legitimate nondiscriminatory reason, in effect, that PHI no longer operated the restaurant, and terminated all employees. [UMF No. 20].

With respect to Rodriguez, Jr., the moving papers establish that he was terminated by Edgar Toc based on violations of PHI’s cash control policies, a legitimate business purpose not motivated by protected class status issues or a violation of public policy. [UMF Nos. 136-143, and evidence cited].

Again, as noted above, once defendant has established a legitimate non-retaliatory explanation for its acts, the burden shifts to plaintiff to show that defendant’s explanation is a mere pretext for illegal termination. Morgan v. Regents of the University of California (2000) 88 Cal.App.4th 52, 69.

The showing required is described as follows:
“If the employer produces substantial evidence of a legitimate, nondiscriminatory reason for the adverse employment action, the presumption of discrimination created by the prima facie case ” ‘simply drops out of the picture’ ” (Horn, supra, 72 Cal. App. 4th at p. 807, quoting St. Mary’s Honor Center v. Hicks (1993) 509 U.S. 502, 511 [113 S. Ct. 2742, 2749, 125 L. Ed. 2d 407]) and the burden shifts back to the employee to prove intentional discrimination. (Horn, supra, 72 Cal. App. 4th at p. 806; Hersant v. Department of Social Services, supra, 57 Cal. App. 4th at p. 1003; Clark, supra, 6 Cal. App. 4th at p. 664.) T]he plaintiff may establish pretext ‘either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.’ ” (Godwin v. Hunt Wesson, Inc., supra, 150 F.3d at p. 1220, quoting Texas Dept. of Community Affairs v. Burdine (1981) 450 U.S. 248, 256 [101 S. Ct. 1089, 1095, 67 L. Ed. 2d 207].) Circumstantial evidence of ” ‘pretense’ must be ‘specific’ and ‘substantial’ in order to create a triable issue with respect to whether the employer intended to discriminate” on an improper basis. (Godwin, supra, 150 F.3d 1217, 1222; Horn, supra, 72 Cal. App. 4th at p. 807.) 10 With direct evidence of pretext, ” ‘a triable issue as to the actual motivation of the employer is created even if the evidence is not substantial.’ [Citation.] The plaintiff is required to produce ‘very little’ direct evidence of the employer’s discriminatory intent to move past summary judgment.” (Chuang v. University of California Davis (9th Cir. 2000) 225 F.3d 1115, 1128.)”
Morgan, at 68-69.

Here, there is no evidence offered in the opposition indicating that either termination was based on discriminatory animus. The motion is therefore granted.

Eleventh Cause of Action—IIED
Workers’ Compensation Preemption
Defendants argue that the claims for IIED brought by plaintiffs Rodriguez, Rodriguez, Jr. and Hazzard are barred by the workers’ compensation preemption

With a few specific exceptions, Labor Code § 3601(a) provides that the right to recover workers’ compensation for a compensable injury shall be the exclusive remedy for such injury. See Guitierrez v. Petoseed Co. (1980) 103 Cal.App.3d 766, 768.

The exclusivity rule is based on the “presumed compensation bargain” where an employer assumes liability for personal injury without regard to fault in exchange for limitations on the amount of the liability. Julie Loretta Glass Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 708. Accordingly, courts have held that the purpose of section 3601 is to make workers’ compensation the exclusive remedy of an injured worker against his employer. Larry G. Appl. v. Lee Swett Livestock Co. (1987) 192 Cal.App. 3d 466.

The bar generally applies to claims for IIED as well. Livitsanos v. Superior Court (1992) 2 Cal.4th 744.

Plaintiffs have previously argued that there is no bar to this claim under Tameny v. Atlantic Richfield Co. (1980) 27 Cal. 3d 167, under which claims for discrimination or other violations of public policy are not preempted.

Defendants rely on a recent case, Vasquez v. Franklin Management Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819, in which the Second District found the trial court had not abused its discretion by sustaining a demurrer to an IIED cause of action without leave to amend where the allegations were that the employer had failed to reimburse the employer for mileage. Even though the alleged conduct of failure to pay minimum wages in that case was held to have been sufficiently alleged to support a claim for violation of public policy, the Second District noted that cases that recognized an IIED claim for wrongful termination in violation of public policy predated the California Supreme Court decision in Miklosy v. Regents of University of California (2008) 44 Cal.4th 876:
“Appellant cites Cabesuela v. Browning-Ferris Industries of California, Inc. (1998) 68 Cal.App.4th 101 [80 Cal. Rptr. 2d 60], Leibert v. Transworld Systems, Inc. (1995) 32 Cal.App.4th 1693 [39 Cal. Rptr. 2d 65] and Phillips, supra, 63 Cal.App.4th 563 for the proposition that termination in violation of public policy can serve as the basis for recovery under an intentional infliction of emotional distress theory. The cases cited all predate the Supreme Court’s decision in Miklosy v. Regents of University of California (2008) 44 Cal.4th 876 [80 Cal. Rptr. 3d 690, 188 P.3d 629], in which the court held that “ ‘severe emotional distress’ ” arising from “ ‘outrageous’ ” conduct that occurred “at the worksite, in the normal course of the employer-employee relationship” is the type of injury that falls within the exclusive [*833] province of workers’ compensation. (Id. at p. 902.) “An employer’s intentional misconduct in connection with actions that are a normal part of the employment relationship… resulting in emotional injury is considered to be encompassed within the compensation bargain, even if the misconduct could be characterized as ‘manifestly unfair, outrageous, harassment, or intended to cause emotional disturbance.’ ” (Singh v. Southland Stone, U.S.A., Inc. (2010) 186 Cal.App.4th 338, 366 [112 Cal. Rptr. 3d 455]; see id. at p. 367 [workers’ compensation exclusivity rule barred intentional infliction of emotional distress claim where employer “berated and humiliated [plaintiff], criticized his job performance, and insulted him with profanities on a regular basis”]; see also Ferretti v. Pfizer, Inc. (N.D.Cal., Aug. 22, 2012, No. 11-CV-04486) 2012 U.S.Dist. Lexis 119115, pp. *32–*34 [finding employee’s reliance on Cabesuela to support intentional infliction of emotional distress claim based on wrongful termination “misplaced” in view of Miklosy].) Accordingly, the trial court did not abuse its discretion in sustaining respondent’s demurrer to appellant’s claim for intentional infliction of emotional distress.”
Vasquez, at 832-833.

Here, the current motion has eliminated the FEHA and wrongful termination claims, leaving, at best allegations of failure to appropriately pay wages and provide rest breaks, conduct occurring in the normal course of the employer-employer relationship, in the nature of failure to pay mileage. The motion is therefore granted.

Failure to establish elements
Defendants further argue that plaintiffs will be unable to establish the elements of such a claim.

To establish a cause of action for Intentional Infliction of Emotional Distress, plaintiff must plead and prove the following essential elements: Extreme and outrageous conduct with the intention of causing, or reckless disregard of the probability of causing, emotional distress; plaintiff suffered severe or extreme emotional distress; defendant’s outrageous conduct actually and proximately caused emotional distress; the conduct was directed to plaintiff. Christensen v. Superior Court (1991) 54 Cal.3d 868, 903; KOVR-TV, Inc. v. Superior Court (Whittle) (1995) 31 Cal.App.4th 1023.

Defendants have presented evidence showing that plaintiffs in deposition have outlined the conduct, which could only be characterized as potentially outrageous in connection with plaintiff Hazzard. [See UMF Nos. 142, 144, 204-216, 312]. It is also established that as to all three plaintiffs, their emotional distress is relatively less severe than might be expected in connection with claims of this type, consisting of difficulty sleeping, feeling worn out, and frustration. This is not to be harsh with plaintiffs in this regard nor is it to take such difficulties lightly, but the Court believes nonetheless that it is appropriate to make such observations as “one piece of the puzzle” in reaching determinations of the type required by the current motion. [UMF No. 145, 217-219]. The motion is granted on this ground as well.

Sixth Cause of Action—Failure to Provide Meal Periods and Seventh Cause of Action—Failure to Provide Rest Periods
Defendants’ argument here is that these causes of action require a showing that plaintiffs were not provided with all meal and rest periods, and that if a meal period was provided but not taken, there is no actionable wrong. However, in reviewing the deposition testimony attached to the moving papers, it appears that there is substantial testimony that plaintiffs were actively discouraged from taking meal periods and were then clocked out so they were not paid when they failed to take them. There remain triable issues in this area, and the motion is therefore denied.

Fourth Cause of Action—Unpaid Wages and Eighth Cause of Action—Overtime Wages
Defendants argue that these causes of action cannot be supported as the employees have no documentary evidence showing that they have performed work which was improperly compensated, or that time entries were changed in a manner that was not legitimate, and that plaintiffs must also show that the employer knew or should have known that work was performed.

Again, the moving papers provide testimony which supports a reasonable inference that while plaintiffs may not have formal documentary proof (some of which documentation apparently may be in the possession of some combination of the defendants and/or their counsel), they can each directly testify to the fact that they performed work and were not compensated for it. [See Exhibits]. In addition, it can be inferred from that testimony, as well as the declarations submitted, that the supervisor, Dong, was aware of the practice, and that the Area Coach Edgar Toch also knew about it. [See, eg. Rodriguez Decl., paras. 5, 6]. Again, this kind of testimonial evidence may properly be considered by a fact-finder in determining whether some combination of the plaintiffs can meet their burden of establishing wage and hour violations by a preponderance of the evidence.

Triable issues remain with respect to the fourth and eighth causes of action and the motion is therefore denied.
Punitive Damages
CCP § 437c(f) provides that “a motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” Subdivision (f)(1) provides “ a party may move for summary adjudication as to … one or more claims for damages … if that party contends … that there is no merit to a claim for damages as specified in Section 3294 of the Civil Code…”

Defendants seek to summarily adjudicate the claims for punitive damages brought by plaintiffs pursuant to Civil Code section 3294.

Civil Code § 3294 authorizes recovery of punitive damages on the basis of findings that “the defendant has been guilty of oppression, fraud or malice.”

Since the action now consists entirely of wage and hour claims, the punitive damages requested may properly be summarily adjudicated under Brewer v. Premier Golf Properties, L.P. (2008)168 Cal.App.4th 1243, 1252 (“punitive damages are not recoverable when liability is premised solely on the employer’s violation of the Labor Code statutes that regulate meal and rest breaks, pay stubs, and minimum wage laws.”).