Case Name: Juan Vasquez v. Le Boulanger, Inc., et al.
Case No.: 17-CV-316829

This is a putative class action alleging wage statement violations by defendant Le Boulanger, Inc. Before the Court is defendant’s motion for summary judgment or, alternatively, summary adjudication as to each of the claims alleged by plaintiff on the ground that plaintiff lacks standing to bring this action. Plaintiff opposes defendant’s motion.

I. Factual and Procedural Background

Plaintiff alleges that the wage statements provided by defendant failed to include night shift pay in the total hours worked and hourly rates earned by employees. (Complaint, ¶¶ 19-20.) This practice caused employees to experience confusion over whether they received all wages owed to them and suffer difficulty and expense in reconstructing pay records and making mathematical computations to analyze whether they had been paid correctly. (Id. at ¶ 22.)

Based on these allegations, plaintiff filed this action on behalf of a putative class of non-exempt employees on October 5, 2017. The complaint asserts claims for (1) violation of Labor Code section 226, subdivision (a)(2) and (9) and (2) penalties under the Private Attorneys General Act (“PAGA”). Defendant answered the complaint and filed the instant motion for summary judgment on December 28, 2017.

II. Legal Standard for Defendant Seeking Summary Judgment or Adjudication

“A defendant seeking summary judgment 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; see also Code Civ. Proc., § 437c, subd. (p)(2).)

This standard provides for a shifting burden of production; that is, the burden to make a prima facie showing of evidence sufficient to support the position of the party in question. (See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851.) The burden of persuasion remains with the moving party and is shaped by the ultimate burden of proof at trial. (Ibid.) “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.” (Ibid.) The opposing party must produce substantial responsive evidence that would support such a finding; evidence that gives rise to no more than speculation is insufficient. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 162-163.)

The traditional method for a defendant to meet its burden on summary judgment is by “negat[ing] a necessary element of the plaintiff’s case” or establishing a defense with its own evidence. (Guz v. Bechtel Nat’l, Inc. (2000) 24 Cal.4th 317, 334.) The defendant may also demonstrate that an essential element of plaintiff’s claim cannot be established by “present[ing] evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence-as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing.” (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 855.)

Summary judgment “is a drastic remedy eliminating trial and therefore the moving party’s declarations must be strictly construed and the opposing party’s declaration liberally construed.” (Hepp v. Lockheed-California Co. (1978) 86 Cal.App.3d 714, 717; see also Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64 [the evidence is viewed in the light most favorable to the opposing plaintiff; the court must “liberally construe plaintiff’s evidentiary submissions and strictly scrutinize defendant’s own evidence, in order to resolve any evidentiary doubts or ambiguities in plaintiff’s favor”].) Summary judgment may not be granted by the court based on inferences reasonably deducible from the papers submitted, if such inferences are contradicted by other inferences which raise a triable issue of fact. (Hepp v. Lockheed-California Co., supra, 86 Cal.App.3d at pp. 717-718.)

Even if there are some triable issues in the case, the court has the power to summarily adjudicate that one or more causes of action has no merit, there is no affirmative defense to one or more causes of action, there is no merit to a claim for punitive damages (Civil Code section 3294), or one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. (Code Civ. Proc., § 437c, subd. (f)(1).) Absent a stipulation approved by the court, “[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.” (Ibid.)

III. Evidentiary Issues

Defendant’s request for judicial notice of the complaint in this action is GRANTED. (Evid. Code, § 452, subd. (d).)

The Court will not rule on plaintiff’s objections to evidence since they are immaterial to its disposition of defendant’s motion. (See Code Civ. Proc., § 437c, subd. (q) [“In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.”].)

IV. Analysis

The material facts at issue in defendant’s motion are undisputed. In July and August of 2017, plaintiff’s counsel sent correspondence to defendant stating that plaintiff’s wage statements omitted night shift premium rate and hour information in violation of Labor Code section 226 and forwarding a PAGA letter submitted to the California Labor Workforce and Development Agency. (Pl.’s Separate Statement of Disputed Material Facts in Opp. to Def.’s Mot., nos. 1 and 2 [indicating that these facts are undisputed].) Defendant confirmed that twelve of plaintiff’s 2017 wage statements had “inadvertently excluded” night shift premium rate and hour information. (Id., no. 3.) On August 15, defendant mailed plaintiff’s counsel a check for $1,150, the full amount of statutory penalties to which he would be entitled as an individual. (Id., nos. 4 and 5.) The $1,150 did not include any attorney fees incurred by plaintiff. (Ibid.) Plaintiff’s counsel received the check, but plaintiff did not cash it and instead filed this lawsuit. (Id., nos. 7 and 8.)

Defendant contends that plaintiff’s receipt of the check destroyed his standing to bring claims under either the Labor Code or PAGA. However, it cites no case in which the mere remittance of statutory penalties, as opposed to a settlement consented to by the plaintiff, was held to have this effect. Contrary to defendant’s argument, the uncashed check is properly construed as a rejected settlement offer, and plaintiff’s refusal to accept the check did not impact his standing to bring this action. (See Campbell-Ewald Co. v. Gomez (2016) 136 S.Ct. 663, 672 [“an unaccepted settlement offer or offer of judgment does not moot a plaintiff’s case”]; Chen v. Allstate Ins. Co. (9th Cir. 2016) 819 F.3d 1136 [applying Campbell-Ewald]; see also Wallace v. GEICO General Ins. Co. (2010) 183 Cal.App.4th 1390, 1395 [noting the trial court had rejected GEICO’s argument that a tender of payment mooted the plaintiff’s individual claims].) Furthermore, as in Campbell-Ewald and its progeny (which are not addressed by defendant), this is a putative class action. Beyond individual statutory penalties, plaintiff seeks classwide monetary and injunctive relief, which defendant’s offer did not address. Where a defendant offers “complete relief on a named plaintiff’s individual claims before certification, but fails to offer complete relief on the plaintiff’s class claims, a court should not enter judgment on the individual claims, over the plaintiff’s objection, before the plaintiff has had a fair opportunity to move for class certification.” (Chen, supra, 819 F.3d at p. 1147.)

With regard to plaintiff’s PAGA claim, the statute establishes a procedure by which employers may “cure” certain alleged violations, but defendant does not address this procedure or indicate that it complied with it. (See Lab. Code, § 2699.3, subd. (c)(2) and (3).) The cure provision does not apply to violations of the Labor Code provisions at issue here: section 226, subdivision (a)(2) and (9). (See Lab. Code, §§ 2699.3, subd. (c) [cure provision does not apply to violations set forth in section 2699.5], 2699.5 [identifying “paragraphs (1) to (5), inclusive, (7), and (9) of subdivision (a) of Section 226”]; see also Lopez v. Friant & Associates, LLC (2017) 15 Cal.App.5th 773, 785, fn. 7 [employer does not have a right to cure violations of provisions listed in section 2699.5)].) Defendant’s noncompliant attempt to cure the violations at issue in this action did not eliminate plaintiff’s standing to prosecute a PAGA action on behalf of the state.

V. Conclusion and Order

For the reasons stated above, defendant’s motion is DENIED in its entirety.

The Court will prepare the order.