Case Number: BC482183    Hearing Date: July 16, 2014    Dept: 46

Posted 7-15-2014 at 1:30 p.m.
For 7-16-2014 Calendar, Matter #5

Case Number: BC482183
HARRIETTE TAPIA VS THE CLARKS COMPANIES N A ET AL
Filing Date: 04/03/2012
Case Type: Other Employment Complaint (General Jurisdiction)

7/16/2014

Motions for Summary Judgment and Summary Adjudication of Issues by Defendants Clarks Companies, North America (also erroneously named as The Clarks Companies, N.A.); C. & J. Clark Retail, Inc.; C&J Clark America, Inc.; Clarks Companies Foundation; Dennis Moyer and Bradley Hall. Opposition to motion by Plaintiff Harriette Tapia, an individual, on behalf of herself and all others similarly situated.

Tentative Ruling: Motion for Summary Judgment is GRANTED. Defendants have met their burden of showing that there is no triable issue of material fact and the moving parties are entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) Defendants have met their burden of showing that none of Plaintiffs causes of action has merit or that one or more elements of the cause of action cannot be established. Code Civ. Proc., § 437c, subd. (o)(2); see also, Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 486–487. The burden shifted to the plaintiff to show a triable issue of material fact exists, Code Civ. Proc., § 437c, subd. (o)(2), but has failed to do so as to any of the cause of action in the First Amended Complaint as stated herein. Judgment is to be entered for Defendants and against Plaintiff. Defendants are ordered to prepare and lodge with the court an Order Granting Summary Judgment and Judgment thereon.

1. The First Amended Complaint [“FAC”]. The matter is at-issue as to the 6/6/12 FAC which contains causes of action for: (1) Unpaid Wages (Labor Code §§ 216 and 1194); (2) Failure to Pay Minimum Wage (Labor Code §§ 1194 et seq.); (3) Failure to Pay Overtime Compensation (Labor Code §§ 510 and 1194); (4) Failure to Provide Meal & Rest Periods (Labor Code §§ 226.7 and 512); (5) Violation of Labor Code § 204; (6) Failure to Furnish Accurate Wage and Hour Statements (Labor Code § 226); (7) Waiting Time Penalties (Labor Code §§ 201-203); (8) Common Law Conversion; (9) Unfair Competition (Business and Professions Code §§ 17200, et seq.) and (10) Private Attorney General Act (Labor Code §§ 2698 et seq.) against Defendants The Clarks Companies, N.A.; Clarks Companies, North America; C.&J. Clark Retail, Inc.; C.&J. Clark America, Inc.; The Clarks Companies Foundation and DOES 1-25.

2. Answer by named defendants and later Doe Amendment to FAC. On 6/29/12, Ds Clarks Companies, North America (also erroneously named as The Clarks Companies, N.A.); C. & J. Clark Retail, Inc.; C&J Clark America, Inc. and Clarks Companies Foundation (hereinafter collectively, “Clarks”) filed their Answer. On 7/19/12, P filed 2 “Amendment[s] to Complaint,” wherein Bradley Hall (hereinafter, “Hall”) was named in lieu of DOE1 and Dennis Moyer (hereinafter, “Moyer”) was named in lieu of DOE 2. On 9/4/12, Ds Hall and Moyer each answered the FAC.

3. The motion for summary judgment [“MSJ”] and the motion for summary adjudication of issues [“MSA”] were filed on 1/31/14 and are made on behalf of all named and “Doe, this instant motion was filed and personally served. On 7/2/14, P’s opposition thereto was filed and served via overnight mail. On 7/11/14, Ds’ reply brief was filed and served via FedEx. Summary of issues:

3.a. This is a putative class action brought on behalf of P and all other individuals employed as store managers against Defendants at any time during the four years preceding the filing of this action, and continuing while this action is pending, who were purportedly denied various Labor Code benefits and protections.

3.b. 1st Cause of Action [hereinafter “COA”] (i.e., for Unpaid Wages)
a. Issue #1: P’s 1st COA fails, because she was paid all wages owed her;
b. Issue #2: P’s 1st COA fails, because she was properly classified as exempt under the inside retail sales exemption and was owed no overtime;
c. Issue #3: P’s 1st COA fails, because more than ½ of her compensation represents commissions on goods or services;
d. Issue #4: P’s 1st COA fails, because the Percent Total Volume (hereinafter, “PTV”) compensation is a commission as defined under Labor Code §204.1 and Keyes Motors, Inc. v. Division of Labor Standards Enforcement (1987) C.A.3d 557;
3.c. 2nd COA (i.e., for Failure to Pay Minimum Wage)
a. Issue #5: P’s 2nd COA fails, for the same reason as Issue #1;
b. Issue #6: P’s 2nd COA fails, for the same reason as Issue #2;
c. Issue #7: P’s 2nd COA fails, for the same reason as Issue #3;
d. Issue #8: P’s 2nd COA fails, for the same reason as Issue #4;
3.d. 3rd COA (i.e., for Failure to Pay Overtime Compensation)
e. Issue #9: P’s 3rd COA fails, for the same reason as Issue #2;
f. Issue #10: P’s 3rd COA fails, because her earnings exceeded 1½ times minimum wage;
g. Issue #11: P’s 3rd COA fails, for the same reason as Issue #3;
h. Issue #12: P’s 3rd COA fails, for the same reason as Issue #4;
3.d. 4th COA (i.e., for Failure to Provide Meal & Rest Periods)
a. Issue #13: P’s 4th C0OA fails, because D Clarks provided P with all legally required meal periods and did not prevent her from taking them;
b. Issue #14: P’s 4th COA fails, because D Clarks authorized and permitted her to take rest breaks and did not prevent her from doing so;
3.e. 5th COA (i.e., for Violation of Labor Code § 204)
a. Issue #15: P’s 5th COA fails, because there is no private right of action under Labor Code § 204;
b. Issue #16: P’s 5th COA fails, because she was paid all wages owed her in weekly paychecks in compliance with applicable state law;
3.f. 6th COA: (i.e., for Failure to Furnish Accurate Wage and Hour Statements)
a. Issue #17: P’s 6th COA fails, because D Clarks complied with Labor Code § 226 in providing her with wage statements which accurately described the payments made;
b. Issue #18: P’s 6th COA fails, because it would constitute an unconstitutional double penalty;
c. Issue #19: P’s 6th COA fails, because D Clarks did not knowingly or intentionally violate Labor Code § 226;
d. Issue #20: P’s 6th COA fails, because P has shown no injury as a result of a knowing or intentional failure by D Clarks to comply with Labor Code § 226;
3.g. 7th COA (i.e., for Waiting Time Penalties)
a. Issue #21: P’s 7th COA fails, because she was properly classified as exempt and was paid all wages due her at the time of her termination;
b. Issue #22: P’s 7th COA fails, because she voluntarily resigned and was paid all wages owed her in her final paycheck;
c. Issue #23: P’s 7th COA fails, because any alleged failure by D Clarks to pay her was not willful as there is a “good faith dispute” as to whether P was properly classified as exempt;
3.h. 8th COA (i.e., Common Law Conversion)
a. Issue #24: P’s 8th COA fails, because the Labor Code provides an exclusive statutory remedy for any alleged violation of her rights;
3.i. 9th COA (i.e., for Unfair Competition)
a. Issue #25: P’s 9th COA fails, because P was properly classified as exempt, provided meal periods, and authorized and permitted to take rest breaks, and therefore has shown no unlawful, unfair or fraudulent conduct to support her derivative Section 17200 claim;
b. Issue #26: P’s 9th COA fails, because the Labor Code provisions cited by P do not provide restitutionary relief;
c. Issue #27: P’s 9th COA fails, because as a former employee, she has no standing to enforce any injunctive rights; and
3.j. 10th COA (i.e., for Violation of the Private Attorneys General Act)
a. Issue #28: P’s 10th COA fails, because it is a derivative claim and all of her underlying Labor Code claims fail as a matter of law.

4. REQUESTS FOR JUDICIAL NOTICE [“RJN”]

4.a. Defendants’ RJN:

a. GRANTED as to Exhibit “G” (i.e., 7/6/06 letter from the State of CA, Department of Industrial Relations “Re: Electronic Itemized Wage Statements”);
b. GRANTED as to Exhibit “H” (i.e., June 2002 “Division of Labor Standards Enforcement—Enforcement Policies and Interpretations Manual”);
c. GRANTED as to Exhibit “I” (i.e., 10/31/05 letter from Boise Cascade, LLC to “Mr. Robert Jones, Chief Counsel, Division of Labor Standards Enforcement”) and
d. GRANTED as to Exhibit “J” (i.e., “CA Minimum Wage—MW-2014”).

4.b. Plaintiffs’ RJN

a. GRANTED as to Exhibit “15” (i.e. “DLAE Opinion Letter 2002.06.13-2”)

5. DEFENDANTS’ OBJECTIONS TO EVIDENCE [FILED 7-11-2014]

a. Michael Boyamin Declaration: Objections 1 – 4 are overruled; Objections 6 – 15 are sustained and the related testimony is ordered stricken;
b. Harriette Tapia Declaration
c. Edgar V. Rodriguez Declaration: Objection 1 is overruled up to “due to” but the rest of that objection is sustained and related testimony is stricken; Objections 2, 4, 5, 8, 9 – 17 and 19 are Overruled; the remaining objections are sustained and the related testimony is ordered stricken;
d. Joseph Barbera Declaration: All objections are sustained and the related testimony is ordered stricken;
e. Trina Chang Declaration: All objections are sustained and the related testimony is stricken;
f. Plaintiff’s Opposition Brief: all objections are overruled as it is improper to object to a statement of argument in a brief – these arguments are not taken as proof of any fact.

6. 3rd COA: (i.e., for Failure to Pay Overtime Compensation)

6.a. IWC Wage Order No. 7-2001 states (hereinafter, “Wage Order 7”), in relevant part, as follows:

“1. Applicability of Order. This order shall apply to all persons
employed in the mercantile industry whether paid on a time, piece
rate, commission, or other basis…
3. Hours and Days of Work.
(A) Daily Overtime – General Provisions
(1) The following overtime provisions are applicable to employees
18 years of age or over and to employees 16 or 17 years of age
who are not required by law to attend school and are not otherwise
prohibited by law from engaging in the subject work. Such
employees shall not be employed more than eight (8) hours in any
workday or more than 40 hours in any workweek unless the employee
receives one and one-half (1 ½) times such employee’s regular rate
of pay for all hours worked over 40 hours in the workweek. Eight (8)
hours of labor constitutes a day’s work. Employment beyond eight
(8) hours in any workday or more than six (6) days in any workweek is permissible provided the employee is compensated for such overtime
at not less than:
(a) One and one-half (1 ½) times the employee’s regular rate of pay for
all hours worked in excess of eight (8) hours up to and including 12
hours in any workday, and for the first eight (8) hours worked on the
seventh (7th) consecutive day of work in a workweek; and
(b) Double the employee’s regular rate of pay for all hours worked in
excess of 12 hours in any workday and for all hours worked in excess
of eight (8) hours on the seventh (7th) consecutive day of work in a
workweek.
(c) The overtime rate of compensation required to be paid to a
nonexempt full-time salaried employee shall be computed by using
the employee’s regular hourly salary as one-fortieth (1/40) of the
employee’s weekly salary…”

6.b. Labor Code § 510 states, in relevant part, as follows:

“(a) Eight hours of labor constitutes a day’s work. Any work in excess
of eight hours in one workday and any work in excess of 40 hours in
any one workweek and the first eight hours worked on the seventh
day of work in any one workweek shall be compensated at the rate
of no less than one and one-half times the regular rate of pay for an
employee. Any work in excess of 12 hours in one day shall be
compensated at the rate of no less than twice the regular rate of pay
for an employee. In addition, any work in excess of eight hours on any
seventh day of a workweek shall be compensated at the rate of no less
than twice the regular rate of pay of an employee…”

6.c. Labor Code § 1194 sets forth an employee’s right to pursue a civil action to recoup any overtime monies due him.

6.d. Defendants correctly contend, the undisputed evidence establishes, and there is no triable issue of fact as to the conclusion that Plaintiff is exempt from overtime protections set forth in IWC Wage Order 7-2001 and Labor Code §§510 and 1194 because of the “inside retail sales” exemption. Wage Order 7(3)(D) provides that the “[p]rovisions of subsections (A), (B), and (C) above shall not apply to any employee whose earnings exceed one and one-half (1 ½) times the minimum wage if more than half of that employee’s compensation represents commissions” (emphasis added).

6.e. The undisputed facts, information considered based upon the court taking judicial notice and the declarations provided clearly establish that Plaintiff had a regular rate of pay that exceeded 1 ½ times the minimum wage.

a. Clarks is a Retail Establishment

Clarks owns and operates retail stores in full service and outlet malls. (UMF No. 1). It also operates free-standing stores. (Id.). It is involved in the retail sale of shoes and accessories, including handbags, wallets, socks and shoe polish to customers who come into its stores. (Id.).

b. P’s Earnings Exceeded 1.5 Times the Minimum Wage

Again, to qualify for the exemption, an employee’s regular rate of pay must be more than 1 ½ ties the minimum wage rate. P was employed as a store manager from 4/10 to 12/31/11. (UMF No. 3). The applicable CA minimum wage during that period was $8/hr. (RJN, Exhibit “J”).

c. Moyer, Clarks’ Regional Sales Manager, has attested, in pertinent part, as follows:

“5. When Plaintiff was promoted to store manager in April 2010, she
was provided with her Estimated Pay Structure. This form provided
her with information regarding her fixed salary pay, estimated store
volume of sales to be made by her store, estimated personal
commission pay, estimated Percent Total Volume (‘PTV’) pay, and
estimated multiple sales bonus…

6. As a store manager, Plaintiffs weekly fixed pay or base salary was
$325. Regardless of the number of hours Plaintiff worked, this weekly
salary did not vary…

8. As a store manager, Plaintiff was eligible to receive two types of
commissions. These commissions were based on sales made from
the store for which she was the store manager. A true and correct
copy of Clarks’ compensation policy for full service store managers
is attached hereto as Exhibit B.

9. One commission was based on net sales that she personally made
to customers from her store, which are commonly referred to by Clarks
as ‘personal commissions.’ Plaintiffs personal commissions were
calculated by applying a 6% rate (e.g., 0.06 x) to the sum of the price
of all net shoe sales, and 10% rate (e.g., 0.10 x) of all net accessory
sales made by Plaintiff during the week.

10. The other type of commission, PTV, was based on all net sales
made by Plaintiffs store — both the sales she had made and sales
made by other store employees. Plaintiffs PTV commissions were
calculated by applying a 1.25% percentage rate (e.g., 0.0125 x) to the
sum of the price of the net sales made by the store during the week…

13. I have reviewed Plaintiffs payroll and earnings records for the
period April 25, 2010 to December 31, 2011, the time during which
she worked as a store manager. During that time, Plaintiffs total
earnings were $79,131.56, of which $48,172.56 (or 66.2%) was from
commissions paid based on sales Tapia personally made or were made
at the Thousand Oaks store. During the same period, Plaintiffs lowest
hourly rate in a week was $15.91 and her highest was $202.34. Her
average hourly rate was $21.62. True and correct copies of Plaintiffs
earnings statements for the period April 25, 2010 to December 31, 2011
are attached hereto as Exhibit C…” (D Moyer Declaration, ¶¶ 5, 6, 8, 9,
10 and 13).

6.f. More than Half of Plaintiff’s Compensation Represents “Commissions, Goods or Services” such that Plaintiff qualifies for the “inside retail sales exemption.

a. While the term “commission” is not defined in the regulations or Wage Order 7, Labor Code § 204.1 (i.e., in the context of employees of vehicle dealers) defines “commissions” as:

“…[c]omission wages are compensation paid to any person for services rendered in the sale of such employer’s property or services and based proportionately upon the amount or value thereof.”

b. “In order for th[e] Court to conclude that ‘more than half of th[e] employee’s compensation represents commissions,’ it must first determine if the wages are ‘commissioned wages.’ See Ramirez v. Yosemite Water Co., Inc. [(1999)] 20 C.4th [785,] at 804. The court in Ramirez cited to Keyes Motors, Inc. v. DLSE (1987) 197 C.A.3d 557, which established two requirements that must be met before a compensation scheme is deemed to constitute ‘commissioned wages’: 1. ‘[E]mployees must be involved principally in selling a product or service’; and 2. The amount of compensation must make up a percentage of the product or service’s price. Ramirez, 20 C.4th at 804, citing to Keyes Motors, 197 C.A.3d at 563. Ramirez also requires that the employee’s sales duties not include ‘”making the product or rendering the service.”’ Id.” Takacs v. A.G. Edwards and Sons, Inc. (S.D.Cal. 2006) 444 F.Supp.2d 1100, 1119.

c. Both requirements of the Keyes Motors test are satisfied here. Plaintiff testified as follows:

“Q. How many hours a week did you generally work?

A. Minimum, 44.

Q. What is the maximum?

A. Sometimes probably 65 hours a week, maybe more.

Q. And how much of that time would you say was allocated to selling
shoes?

A. 85 percent of your job is selling shoes.

Q. And when you refer to the 85 percent, you are talking about the
time actually out there, greeting customers, trying on shoes, helping
them select shoes and accessories. Is that right?

A. Correct.

Q. You estimate that about 85 percent of your time was actually
engaged in selling shoes?

MR. HENDERSON: Objection. Asked and answered.

THE WITNESS: Correct…” (Motion, Exhibit “K,” 103:20-104:10).

d. Based upon these facts, it cannot be disputed that Plaintiff was “involved principally in selling a product or service, not making the product or rendering the service.” Accordingly, any form of compensation P received qualified as a “commission” for purposes of the “inside retail sales” exemption so long as that form of compensation also meets the 2nd element of the test espoused in Keyes Motors.

e. This 2nd element is that it must be “based proportionately upon the amount or value” of the “sale of [the] employer’s property or services.” A commission can be based on the amount of sales. See Areso v. CarMax, Inc. (2011) 195 C.A.4th 996 (i.e., a car dealership’s uniform payment for each vehicle sold constituted a commission). It can also be based on the value of sales such as the gross or net price or profitability of the items sold. See Muldrow v. Surrex Solutions Corporation (2012) 208 C.A.4th 1381.

f. The personal sales and PTV compensation P earned qualified as “commissions” because they were based proportionately upon the value of items sold by P and by her store, respectively. P does not provide any legal authority for her argument that, because PTV is based on sales other than sales that she personally made to customers, it does not constitute a commission. Labor Code § 204.1 defines “commissions” as “compensation paid to any person for services rendered in the sale of such employer’s property or services and based proportionately upon the amount or value thereof.” PTV was calculated at 1.25& of the net revenue of sales made by Plaintiff’s store; as such, it was “based proportionally on the amount” of the sales of Clark’s merchandise. As Defendants point out, “nothing in the definition requires that only a person’s individual sales be included in the calculation. The definition covers ‘compensation’ to ‘any person for services rendered in the sale of’ merchandise. (Emphasis added). The language does not say ‘to the person who completes the sale.’ Certainly, the legislature could have narrowed the definition had it chosen to do so.” (Reply, 3:12-16; emphasis theirs). “’As in any case involving statutory interpretation, our fundamental task is to determine the Legislature’s intent so as to effectuate the law’s purpose.’ (People v. Murphy (2001) 25 C.4th 136, 142). The rules for performing this task are well established. We begin by examining the statutory language, giving it a plain and commonsense meaning. (Ibid.). We do not, however, consider the statutory language in isolation; rather, we look to the entire substance of the statutes in order to determine their scope and purposes. (Ibid.). That is, we construe the words in question in context, keeping in mind the statutes’ nature and obvious purposes. (Ibid.). We must harmonize the various parts of the enactments by considering them in the context of the statutory framework as a whole. (Ibid.). If the statutory language is unambiguous, then its plain meaning controls.” People v. Cole (2006) 38 C.4th 964, 974-975.

g. Moreover, “California’s wage orders are closely modeled after (although they do not duplicate), section 7(a)(1) of the Fair Labor Standards Act of 1938. (29 U.S.C. § 207(a)(1)). It has been held that when California’s laws are patterned on federal statutes, federal cases construing those federal statutes may be looked to for persuasive guidance. (See, e.g., Building Material & Construction Teamsters’ Union, Local 216 v. Farrell (1986) 41 C.3d 651, 658; Nishikawa Farms, Inc. v. Mahoney (1977) 66 C.A.3d 781, 787 [construing ALRB, based on NLRB].).” Alcala v. Western Ag Enterprises (1986) 182 C.A.3d 546, 550.

h. The Department of Labor’s Field Operations Handbook advises, in ¶ 21h06 therein, as follows: “Commissions paid to department or store managers : In some cases a department manager or store manager is paid a commission on all or some of the sales made by his department or store. For purposes of applying Sec 7(i) to such a manager, these payments are considered to represent commissions on goods or services, even though the other employees actually made all or most of the sales. The role, position and function of the manager greatly contribute to the sales of his store or department.”

i. Additionally, the “Estimated Pay Structure” (hereinafter, “EPS”) P was provided when Plaintiff was promoted to store manager in April 2010 (Moyer Declaration, ¶ 5), lists “PVT” under the heading “Weekly Estimated Variable Pay**.” The next page of the EPS provides, in pertinent part, as follows:

“** This is commission based pay. Therefore, factors such as your own personal sales, store performance and multiples sales bonus plan will dictate how much you are paid…” (Id., Exhibit “A;” emphasis added).

7. Plaintiff’s claim that Plaintiff was misclassified. Plaintiff argues that she was misclassified as exempt and worked overtime that she did not report to Clarks and for which she was not paid. However, Under Wage Order 7(2)(G), “’[h]ours worked’ means the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so.”

7.a. “[T]he phrase ‘suffered or permitted to work, whether or not required to do so’ (subd. 2(G)) encompasses a meaning distinct from merely ‘working.’…the California Labor Commissioner notes that ‘the time the employee is suffered or permitted to work, whether or not required to do so’ ( ibid.) can be interpreted as time an employee is working but is not subject to an employer’s control. This time can include work such as unauthorized overtime, which the employer has not requested or required. ‘Work not requested but suffered or permitted is work time. For example, an employee may voluntarily continue to work at the end of the shift…. The employer knows or has reason to believe that he is continuing to work and the time is working time. [Citations.]’ (29 C.F.R. § 785.11 (1998)). ‘In all such cases it is the duty of the management to exercise its control and see that the work is not performed if it does not want it to be performed.’ (29 C.F.R. § 785.13 (1998)). Although our state cases have not interpreted the phrase, federal cases have discussed the meaning of ‘suffer or permit to work’ defining ‘[e]mploy’ under the FLSA. (29 U.S.C. § 203(g)). ‘”[T]he words ‘suffer’ and ‘permit’ as used in the statute mean ‘with the knowledge of the employer.’” [Citation.] Thus an employer who knows or should have known that an employee is or was working overtime must comply with the provisions of [29 U.S.C.] § 207 [maximum hours].’(Forrester v. Roth’s I.G.A. Foodliner, Inc. (9th Cir. 1981) 646 F.2d 413, 414; see also 29 C.F.R. §§ 785.11, 785.13).” Morillion v. Royal Packing Co. (2000) 22 C.4th 575, 584-585.

7.b. Clark’s policy requires employees to prepare and submit accurate time records. (D Moyer Declaration, ¶14; see also, Exhibit “D”)

7.c. Plaintiff testified as follows:

“Q. By signing the weekly total hours, are you confirming that that
accurately reflects your week’s hours?

MR. HENDERSON: Objection. Argumentative, misstates
the prior testimony.

THE WITNESS: Yes.

BY MR. MILLS:

Q. Do you—well, I suppose ultimately you did understand. But what
did you understand the purpose of Joey’s signature to be on the
manager signature line?

A. That it was correct.

Q. And the same would be the case—everywhere there’s an employee
signature on Exhibit No. 4, does that reflect your signature?

A. Yes.

Q. And—okay. Going to, if you see in the bottom right, there is what’s
called Bates numbers. It starts around 1—168. If you go to document
no. 193, it appears to me, at least, that that is your signature on both
employee signature and manager signature.
Is that correct?

A. Yes.

Q. Why—why were you signing in both places?

A. Because it was for my timecard, and I’m the manager.

Q. And that would continue for the rest of these timecards. Is that right?

A. Correct.

Q. So the rest of these timecards after May 1, 2010—well, I guess after
April 29, 2010, all reflect only your signatures because you’re signing
both as a manager and as the employee. Right?

A. Correct.

Q. So you’re the employee verifying your time, and you are also the
manager verifying your time?

A. Correct.

Q. And then if we look at other employees’ timecards at the Thousand
Oaks store, we would see their signature on the employee signature
line and your signature on the manager signature line. Correct?

A. Correct.

Q. And what was your purpose for signing under manager signature line
for those employees?
A. To make sure they clock in and out correctly.

Q. Were you verifying that those timecards accurately reflected the time
that the employees worked?

A. Correct.

Q. And then by your signature on your own card, you were verifying both
as the employee and as a manager that those time entries were accurate.
Is that correct?

A. Correct.” (Motion, Exhibit “K,” 246:25-248:25).

Plaintiff did not correct or object to any time records she submitted. (D Moyer Declaration, ¶ 15). Plaintiff does claim that, although at least some of the timecards did not accurately reflect how long she was at the store, she signed them anyways. Plaintiff, however, further testified as follows:

“Q. Are you able to estimate or provide—well, are you able to provide
any estimate as to how many of these time records are false?

MR. HENDERSON: Objection. Rifkind. You can answer.

THE WITNESS: I don’t know.

BY MR. MILLS:
Q. Wait. Okay. And that—and that’s fine. Is there—can you provide any
estimate at all?

MR. HENDERSON: Same objection. Also vague and ambiguous.

THE WITNESS: I don’t know.” (Motion, Exhibit “K,” 249:1-19).

Plaintiff further testified that she has no way of going back over her time records and schedule to determine what days and how many hours she allegedly worked off-the-clock:

“Q. Were there times when you worked longer than your scheduled time
and accurately recorded that you had worked loner than your scheduled
time?

A. Yes.

Q. And, apparently, there were times when you worked longer than
your scheduled time and did not accurately record that. Is that right?

A. Correct.

Q. Now, is there any way to look at these schedules and know when that
was?

A. No.

Q. Is there any way to look at the schedules and know how long you
stayed after?

A. No.

Q. Is there any way to estimate how long you stayed after on any given
day as a store manager at the Thousand Oaks store?

A. No.

Q. Are you able to provide an estimate of how long you stayed after your scheduled hours on any given day while a manager at the Thousand Oaks
store?…

THE WITNESS: I don’t know.” (Id. at 238:10-239:17).

Plaintiff therefore admits that she has no specific records identifying the hours she worked per workweek or workday during the course of her employment to contradict the hours she recorded on her timesheets. She also does not demonstrate that her supervisor or any other manager at Clarks had any knowledge or awareness that she was not recording all hours she worked.

8. 5th COA (i.e., for Violation of Labor Code § 204)- Plaintiff has not stated a right of action under this statute

8.a. Labor Code §204 states as follows:

“(a) All wages, other than those mentioned in Section 201, 201.3,
202, 204.1, or 204.2, earned by any person in any employment
are due and payable twice during each calendar month, on days
designated in advance by the employer as the regular paydays.
Labor performed between the 1st and 15th days, inclusive, of any
calendar month shall be paid for between the 16th and the 26th
day of the month during which the labor was performed, and labor
performed between the 16th and the last day, inclusive, of any
calendar month, shall be paid for between the 1st and 10th day of
the following month. However, salaries of executive, administrative,
and professional employees of employers covered by the Fair Labor
Standards Act, as set forth pursuant to Section 13(a)(1) of the Fair
Labor Standards Act, as amended through March 1, 1969, in Part
541 of Title 29 of the Code of Federal Regulations, as that part now
reads or may be amended to read at any time hereafter, may be paid
once a month on or before the 26th day of the month during which the
labor was performed if the entire month’s salaries, including the
unearned portion between the date of payment and the last day of the
month, are paid at that time.

(b)(1) Notwithstanding any other provision of this section, all wages
earned for labor in excess of the normal work period shall be paid no
later than the payday for the next regular payroll period.
(2) An employer is in compliance with the requirements of subdivision
(a) of Section 226 relating to total hours worked by the employee, if
hours worked in excess of the normal work period during the current
pay period are itemized as corrections on the paystub for the next
regular pay period. Any corrections set out in a subsequently issued
paystub shall state the inclusive dates of the pay period for which the
employer is correcting its initial report of hours worked.
(c) However, when employees are covered by a collective bargaining
agreement that provides different pay arrangements, those
arrangements shall apply to the covered employees.
(d) The requirements of this section shall be deemed satisfied by the
payment of wages for weekly, biweekly, or semimonthly payroll if the
wages are paid not more than seven calendar days following the close
of the payroll period.”

8.b. The above provisions only requires that wages earned during employment be paid at certain intervals; it does not provide a right to wages. The only statutory remedy for §204 violations is a civil penalty set forth in § 210 [See Singer v. Becton, Dickinson and Co. (S.D. Cal. 2008) 2008 WL 2899825 (not reported in F.Supp.2d)]; subsection (b) therein provides that “[t]he penalty shall be recovered by the Labor Commissioner as part of a hearing held to recover unpaid wages and penalties pursuant to this chapter or in an independent civil action…”

8.c. “[A] private right of action exists only if the language of the statute or its legislative history clearly indicates the Legislature intended to create such a right to sue for damages. If the Legislature intends to create a private cause of action, we generally assume it will do so ‘”directly[,] … in clear, understandable, unmistakable terms ….” [Citation.]’ (Moradi-Shalal v. Fireman’s Fund Ins. Companies (1988) 46 C.3d 287, 294-295…).” Vikco Ins. Services, Inc. v. Ohio Indem. Co. (1999) 70 C.A.4th 55, 62-63 (emphasis theirs).

9. 4th COA (i.e., Failure to Provide Meal & Rest Periods)

a. The undisputed evidence indicates that Plaintiff Was Permitted to Take Rest Breaks

Wage Order 7(12) states, in relevant part, as follows:

“12. Rest Periods.

(A) Every employer shall authorize and permit all employees to take
rest periods, which insofar as practicable shall be in the middle of
each work period. The authorized rest period time shall be based on
the total hours worked daily at the rate of ten (10) minutes net rest time
per four (4) hours or major fraction thereof. However, a rest period need
not be authorized for employees whose total daily work time is less than
three and one-half (3 ½) hours. Authorized rest period time shall be
counted as hours worked for which there shall be no deduction from
wages.”

b. A DLSE 1/28/02 Opinion Letter advises that “an employer is not subject to any sort of penalty or premium pay obligation if an employee who was truly authorized and permitted to take a rest break, as required under the applicable wage order, freely chooses without any coercion or encouragement to forego or waive a rest period.” (Emphasis theirs; see attached).

c. It is Defendant Clarks’ policy that employees take the 30-minute meal periods and ten-minute rest breaks as required under California law.” (UMF No. 14). In that regard Plaintiff testified as follows:

“Q. You understood that it was company policy that employees take
these ten-minute rest breaks. Is that right?

A. Correct…

Q. And the company policy on rest periods and meal periods apply equally
to store managers, assistant store managers, key holders, and part-time associates?

A. Correct.

Q. And you said that most of the time you took ten-minute rest breaks as
a store manager at the Thousand Oaks store. Is that right?

A. Correct.

Q. And I take that to mean that there was, at least, an occasion or some occasions where you did not take a ten-minute rest break every three and
a half to four hours that you worked?

A. Yes.

Q. Can you estimate how many times that would have happened while you
were a store manager?

MR. HENDERSON: Objection. Overbroad.

BY MR. MILLS:

Q. If you can.

A. No.

Q. Would you say it was more than five times?

MR. HENDERSON: Same objection.

THE WITNESS: Yes.

BY MR. MILLS:

Q. More than ten times?

MR. HENDERSON: Same objection.

THE WITNESS: I don’t recall.” (Motion, Exhibit “K,” 142:3-143:12).

d. Plaintiff also testified that the instances where she was not able to take her 10-minute break occurred when she was busy with customers. (Declaration of Michael Boyamian [hereinafter, “Boyamian”, Exhibit “1,” 152:22-153:7). When that happened, however, she could “sometimes” just take her ten-minute break after the customer traffic had cleared. (Id., 155:16-24).

10. The undisputed evidence indicates that Plaintiff was permitted to take meal breaks

a. Labor Code § 512(a) provides, in part, that “[a]n employer may not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than 30 minutes…”

b. The employer satisfies this obligation if it relieves its employees of all duty, relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted 30–minute break, and does not impede or discourage them from doing so.” Brinker Restaurant Corp. v. Superior Court (2012) 53 C.4th 1004, 1040. “Proof an employer had knowledge of employees working through meal periods will not alone subject the employer to liability for premium pay; employees cannot manipulate the flexibility granted them by employers to use their breaks as they see fit to generate such liability. On the other hand, an employer may not undermine a formal policy of providing meal breaks by pressuring employees to perform their duties in ways that omit breaks. (Cicairos v. Summit Logistics, Inc. (2005) 133 C.A.4th 949, 962-963).” Id.

c. Clarks’ policy is compliant with CA law. (See UMF No. 14). Plaintiff has provided no evidence that she was pressured to work through meal breaks. She testified as follows:

“Q. And part of your—was part of your job ensuring that employees were provided the opportunity take 30-minute meal periods?

A. Yes…

Q. Did you schedule yourself for 30-minute meal periods?

MR. HENDERSON: Objection. Vague and ambiguous.

THE WITNESS: Yes.

BY MR. MILLS:
Q. Did you take 30-minute meal periods?

MR. HENDERSON: Same objection.

THE WITNESS: Yes.

BY MR. MILLS:

Q. Did you consistently take them when you worked a schedule of five
hours or more?

MR. HENDERSON: Same objection.

THE WITNESS: Yes.” (Motion, Exhibit “K,” 134:7-135:13).

d. Although P subsequently testified that she did not take a full, 30-minute uninterrupted meal period more than once, she could not remember when this occurred or if this occurred more than five times. (Id., 136:9-137:11). Plaintiff cannot, then, manufacture a claim that Defendant Clarks did not provide her with the required meal breaks, or that it prevented or discouraged her from taking those breaks.

11. 1st, 2nd and 6th-10th COAs (i.e., Unpaid Wages, Failure to Pay Minimum Wage, Failure to Furnish Accurate Wage and Hour Statements, Waiting Time Penalties, Common Law Conversion, Unfair Competition and Private Attorney General Act, Respectively)

a. As Defendants note, Plaintiff’s 1st, 2nd and 6th-10th COAs fail, because they are premised on, and derivative of, her flawed overtime and meal and rest break claims.

b. Additionally, P’s 1st COA is based on Labor Code § 216, which is a criminal statute that cannot form the basis for a civil claim.

c. Plaintiff’s 6th COA also fails, because Labor Code § 226 only requires that employers accurately describe the monies that are being paid “at the time of each payment of wages;” it does not require that employees describe monies that are not being paid. Subsection (e), moreover, provides for a penalty for the failure to provide an accurate itemized wage statement only where the employee proves that she suffered “injury as a result of a knowing and intentional failure by an employer to comply with subdivision (a).” Although Plaintiff was provided the opportunity to testify how any of the wage statements caused her injury or damages, she declined to answer same. (Motion, Exhibit “K,” 261:3-11).

d. Plaintiff’s 7th COA additionally fails because there is no evidence that Defendants “willfully fail[ed] to pay…any wages of an employee who is discharged or who quit.” Labor Code § 203.

e. Plaintiff’s 8th COA also fails, because the “new right—exclusive remedy” doctrine “provides that ‘[w]here a statute creates new rights and obligations not previously existing in the common law, the express statutory remedy is deemed to be the exclusive remedy available for statutory violations, unless it is inadequate.’ (Italics added; accord, Rojo v. Kliger (1990) 52 C.3d 65, 79 [in such situations ‘the statutory remedy is exclusive’]; cf., Stevenson v. Superior Court (1997) 16 C.4th 880, 900).” Brewer v. Premier Golf Properties (2008) 168 C.A.4th 1243, 1252. “[T]he Labor Code statutes regulating pay stubs (§ 226) and minimum wages (§ 1197.1) create new rights and obligations not previously existing in the common law. Moreover, those same statutes provide express statutory remedies, including penalties for the violation of those statutes that are punitive in nature, that are available when an employer has violated those provisions.” Id. P’s conversion COA is premised entirely on alleged violations of the Labor Code. P’s reliance on Lu v. Hawaiian Gardens Casino, Inc. (2010) 50 C.4th 592 is distinguishable, because Labor Code § 351 did not provide a private right of action; the CA Supreme Court said that “our holding that section 351 does not provide a private cause of action does not necessarily foreclose the availability of other remedies. To the extent that an employee may be entitled to certain misappropriated gratuities, we see no apparent reason why other remedies, such as a common law action for conversion, may not be available under appropriate circumstances.” Id. at 603. The CA Supreme Court in Cortez v. Purolator Air Filtration Products Co. (2000) 23 C.4th 163 did not state that a CL conversion COA could be brought where there is a remedy under the Labor Code; rather, it determined that an employee could bring a COA for restitution under B&P § 17200.