Case Name: Jing Rios v. A2Z Development Center, Inc.
Case No.: 2015-1-CV-281375

This is a dispute between an employer, Defendant A2Z Development Center, Inc. (“Defendant”) and a former employee, Plaintiff Jing Rios (“Plaintiff”). Plaintiff’s operative Second Amended Complaint (“SAC”) states two causes of action: 1) Violation of the PAGA (Labor Code §2698 et seq.), and; 2) Violation of Labor Code §226. Currently before the Court is Defendant’s Motion for Summary Adjudication.

The parties’ identical requests for judicial notice of a July 7, 2008 Opinion Letter from the Division of Labor Standards and Enforcement (“DLSE”) are both GRANTED pursuant to Evid. Code §452(c).

The pleading limits the issues presented on a motion for summary judgment or adjudication. (See Government Employees Ins. Co. v. Sup. Ct. (2000) 79 Cal.App.4th 95, 98; Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258; Nieto v. Blue Shield of Calif. Life & Health Ins. (2010) 181 Cal.App.4th 60, 73 [“the pleadings determine the scope of relevant issues on a summary judgment motion.”].) The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) 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. (See CCP §437c(f)(1); McClasky v. California State Auto. Ass’n (2010) 189 Cal.App.4th 947, 975 [“If a cause of action is not shown to be barred in its entirety, no order for summary judgment—or adjudication—can be entered.”]) Orders granting or denying summary adjudication are not appealable. (See Nye v. 20th Century Ins. Co. (1990) 225 Cal.App.3d 1041, 1043 fn. 1 [“An order granting or denying summary adjudication is not appealable, but is reviewable only by writ.”].) Summary adjudication of general “issues” or of facts is not permitted. (See Raghavan v. The Boeing Company (2005) 133 Cal.App.4th 1120, 1136. See also Paramount Petroleum Corp. v. Superior Court (2014) 227 Cal.App.4th 226, 244.)

The moving party’s declarations and evidence will be strictly construed in determining whether they negate or disprove an essential element of a plaintiff’s claim “in order to resolve any evidentiary doubts or ambiguities in plaintiff’s (or opposing party’s) favor.” (Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64, parentheses added.) While the same standards of admissibility govern both, the opposition declarations are liberally construed while the moving party’s evidence is strictly scrutinized. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.) The evidence must be liberally construed in support of the opposing party, resolving any doubts in favor of that party. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.)

“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.)

Defendant’s Motion for Summary Adjudication of “Issue/Cause of Action No.1,” and “Issue Cause of Action No. 2,” (Notice of Motion at 2:8-17) is DENIED. Each of Defendant’s proposed “issues” fail to wholly dispose of a cause of action, affirmative defense, claim for damages or an issue of duty as required by CCP §437c(f)(1). (See also CCP §437c(t).)

Defendant’s passing references to Lilienthal & Fowler v. Super. Ct. (1993) 12 Cal.App.4th 1848 do not meet its initial burden to establish that its proposed adjudication is permissible and appropriate. The decision in Lilienthal does not stand for the general proposition that a moving party may select “issues of law” within pled causes of action for summary adjudication. (See Bagley v. TRW, Inc. (1999) 73 Cal.App.4th 1092, 1095, fn. 2 [“We question whether Lilienthal properly construed subdivision (f)(1) of section 437c . . . As subsequently amended, subdivision (f)(1) now 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.’”) Emphasis in original. To come within the rule of Lilienthal, even though claims are pleaded in one cause of action, there must be separate and distinct wrongful acts or obligations that are subject to otherwise prohibited piecemeal adjudication because they allege the actual invasion of different primary rights. (See Hindin v. Rust (2004) 118 Cal.App.4th 1247, 1257-1258 [“The primary right theory is a theory of code pleading that has long been followed in California. It provides that a ‘cause of action’ is comprised of a ‘primary right’ of the plaintiff, a corresponding ‘primary duty’ of the defendant, and a wrongful act by the defendant constituting a breach of that duty. [Citation.] The most salient characteristic of a primary right is that it is indivisible: the violation of a single primary right gives rise to but a single cause of action. . . . The manner in which a plaintiff elects to organize his or her claims within the body of the complaint is irrelevant to determining the number of causes of action alleged under the primary right theory. ‘[I]f a plaintiff states several purported causes of action which allege an invasion of the same primary right he has actually stated only one cause of action. On the other hand, if a plaintiff alleges that the defendant’s single wrongful act invaded two different primary rights, he has stated two causes of action, and this is so even though the two invasions are pleaded in a single count of the complaint.’”] Internal citations omitted.)

Defendant’s motion does not offer any arguments regarding Plaintiff’s “primary rights,” much less identify how the “issues” it seeks to adjudicate arise from distinct wrongful acts and/or violations of different primary rights. Therefore Defendant has failed to meet its initial burden and the Court sees no reason to depart from the general rule that “there can be no summary adjudication of less than an entire cause of action. (Code Civ. Proc., § 437c, subd. (f)(1) [“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.”].) Therefore, an order granting summary adjudication ‘to the extent’ a cause of action rests on this or that premise is invalid unless the matter thus adjudicated is properly viewed as a distinct ‘cause of action’ for purposes of the provision thus cited. If a cause of action is not shown to be barred in its entirety, no order for summary judgment—or adjudication—can be entered.” (McClasky v. California State Auto. Ass’n (2010) 189 Cal.App.4th 947, 975.)

As Defendant’s motion is denied for failure to meet the initial burden, Plaintiff’s evidence has not been considered by the Court and Defendant’s objections to Plaintiff’s evidence are moot.