Case Name: Kennedy v. Odwalla, Inc.
Case No.: 16-CV-290202

Defendant Odwalla, Inc. (“Defendant” or “Odwalla”) moves for summary judgment, or in the alternative, summary adjudication in its favor and against plaintiff Ken Kennedy (“Plaintiff”).

After full consideration of the evidence, separate statements and authorities submitted by the parties, the Court makes the following rulings:

Odwalla’s request for judicial notice is GRANTED. (Evid. Code, § 452, subd. (h).)

Odwalla’s request for summary judgment is GRANTED IN PART and DENIED IN PART. The motion is GRANTED as to the representative portion of the Complaint (i.e., to the extent the claims are brought under PAGA) due to Plaintiff’s lack of standing to assert those claims on behalf of others, and DENIED as to the individual portion of the Complaint (i.e., Plaintiff’s individual claims).

Plaintiff’s alternative motion for summary adjudication as to his individual claims is GRANTED IN PART and DENIED IN PART. The motion is GRANTED as to the first, second, third, fourth and fifth causes of action and DENIED as to the sixth and seventh causes of action.

First, with regard to the issue of Plaintiff’s exhaustion of administrative remedies under PAGA, under California’s Labor Code, the requisite written notice is sufficient so long as it contains some basic facts about the violations, such as which provision was allegedly violated and who was allegedly harmed. (See Alcantar v. Hobart Serv. (9th Cir. 2015) 800 F.3d 1047.) Here, contrary to Defendant’s assertions, the contents of Plaintiff’s notice to the LWDA were sufficiently particular to satisfy his obligations under PAGA. The notice sets forth the specific basis for his PAGA claims and facts specific to those claims. As to the meal and rest break claims, Plaintiff alleges that he and other “Route Service Representatives” (“RSRs”), i.e., delivery drivers, were unable to take meal and rest breaks in order to complete the routes assigned to them; that Odwalla knew or should have known of this because its GPS systems would reveal that legally required breaks were routinely missed by RSRs. (FAC, Exhibit 1.) Plaintiff specifically asserts that Defendant did, in fact, monitor its GPS systems and knew where Plaintiff was at all times, having fired him for going to the gym using a company vehicle. (Id.) As to his personnel and payroll document claims, Plaintiff sets forth that he made requests for his files on specific dates and did not receive a response. It is clear that Plaintiff’s notice is comprised of far more than a simple list of Labor Code violations, which by itself would be insufficient.

As to Odwalla’s assertion that the notice is insufficient because other wronged employees are not specifically identified, case law does not bear this out. In Cardenas v. McLane FoodServices, Inc. (2011) 796 F.Supp.2d 1246, the court, while considering the issue of administrative exhaustion based on the contents of the plaintiff’s notice to the LWDA, rejected the defendant employer’s contention that the plaintiffs were required to list every aggrieved employee upon their action was brought, noting that brining claims on behalf of other aggrieved employees “is the very premise of PAGA.” (Cardenas, 796 F.Supp.2d at 1260.) Moreover, as Plaintiff contends in his opposition, the cases to which Defendant cites for the proposition that every employee represented must be named in an LWDA notice do not actually evaluate whether the plaintiff exhausted administrative remedies for PAGA purposes, but rather whether the plaintiff adequately pleaded a claim for relief under Federal Rules of Civil Procedure, Rule 8. (See, e.g.Chie v. Reed Elsevier, Inc. (N.D. Cal. 2011) 2011 WL 3879495, *4; Jeske v. Maksim Healthcare Services (E.D. Cal. 2012) 2012 WL 78242, *13.) These are not the same questions. In sum, the Court finds that Kennedy’s notice is sufficiently specific and thus Odwalla is not entitled to summary judgment on this basis.

As for the issue of whether Odwalla received the LWDA notice, Odwalla insists, citing to the declaration of Karine Kerba, identified as Human Resources Business Partner for the company, that there is no record of it having received it. (Declaration of Karine Kerba in Support of Motion for Summary Judgment/Adjudication (“Kerba Decl.”), ¶ 4.) Ms. Kerba explains that the company made a “good faith and diligent search” for the letter from Plaintiff’s counsel dated October 23, 2015, but was unsuccessful in locating it or proof that it was received. (Id.) Plaintiff responds in his opposition that the letter was provided to Defendant, and submits a copy of a signed postal delivery receipt from one of Odwalla’s authorized agents evidencing having received Kennedy’s LWDA notice on October 27, 2015. (See Declaration of Vladimir Kozina in Support of Opposition to Motion for Summary Judgment/Adjudication (“Kozina Decl.”), ¶ 4 and Exhibit 2.) This evidence effectively raises a triable issue with regard to whether Odwalla was provided the requisite notice under PAGA, and therefore Odwalla is not entitled to summary judgment on this basis. Thus, Defendant’s arguments regarding Plaintiff’s alleged failure to exhaust his administrative remedies under subdivision (a) of Section 2699.3 are without merit.

As to the issue of Plaintiff’s standing to pursue claims on behalf of himself and others under PAGA, i.e., whether he qualifies as an “aggrieved employee,” Defendant establishes that Plaintiff did not suffer violations of the Labor Code sections upon which the first, second, third, fourth and fifth causes of action are predicated, and therefore was not “aggrieved” under those provisions.

Under the PAGA, an “aggrieved employee” is defined as “any person who was employed by the alleged violator and against whom one or more of the alleged violations was committed.” (Lab. Code, § 2699, subd. (c).) In the third and fourth causes of action, Plaintiff alleges that Defendant failed to provide him and the other current and former employees he is filing suit on behalf of with the meal and/or rest breaks that they were entitled to under Labor Code sections 226.7 (“Section 226.7”) and 512 (“Section 512”) and all applicable IWC orders. (FAC, ¶¶ 45, 53.) Plaintiff further alleges that he and other delivery drivers were regularly not provided for or paid for their breaks due to Odwalla’s illegal policies and practices which prevented them from timely taking lunch. (Id., ¶ 18.) Kennedy asserts that in order to complete the routes assigned by Defendant, he and the other drivers routinely needed to skip their lunch breaks and Odwalla, because it tracks its drivers, was aware that they were not taking or being compensated for missing lunch. (Id.)

As a general matter, an employer satisfies the obligation to “provide” a meal break “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 Cal.4th 1004, 1040.) The 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 Cal.App.4th 949, 962-963; see also Jaimez v. Daiohas USA, Inc. (2010) 181 Cal.App.4th 1286, 1304-1305 [proof of common scheduling policy that made taking breaks extremely difficult would show violation].)

Odwalla first contends that it “unquestionably” satisfied the foregoing standard, i.e. provided Plaintiff with the meals breaks that he was entitled to. It submits evidence, principally portions of Plaintiff’s deposition testimony, that demonstrate that Plaintiff received, acknowledged, and received training on the company’s meal period policy, which was that the employee was provided with at least a 30 minute meal period which was to start before the end of the fifth hour of work. (Defendant’s Separate Statement of Undisputed Material Facts in Support of Motion for Summary Judgment (“UMF”), Nos. 4-5.) Per the policy, the employee was relieved of all duties during the unpaid meal time and permitted to “leave [his] route or premises.” (UMF No. 5.) Plaintiff testified that he knew Odwalla’s policy on meal breaks and that there were no policies or procedures by Odwalla that caused him to have to miss meal breaks or take them late. (UMF Nos. 9-11.) He further testified that no one ever told him to take a meal break late, or to work through some or all of a meal break, and he was always told to take it for 30-35 minutes and before five hours into his sift. (UMF No. 12.) He also testified that he always punched in and out for lunch and he could do whatever he wanted on his meal break and was never told that he could not drive his truck on a break. (UMF No. 4.) Plaintiff acknowledged that he never complained to Odwalla with respect to his meal breaks.

In the Complaint, Plaintiff alleges that “[i]n order to complete the routes Odwalla assigned, Kennedy and the other delivery drivers routinely needed to skip their lunch breaks,” however, Odwalla submits evidence that Plaintiff’s employment was terminated based on his own admissions that he falsified his time records to show that he was working when he was in fact exercising at Gold’s Gym. (UMF No. 17.) Plaintiff admitted that he did not like the meal break policy because it did not allow him to complete his workout routine at the gym on his lunch break in the middle of his work day, and would have preferred to take a later and longer lunch so he could work out during that time. (UMF No. 18.) To avoid accumulating violations of Odwalla’s time and attendance policy, which would have happened had he worked out on his preferred schedule, Plaintiff would clock out as if he were taking a policy compliant meal break but not actually take the break. (UMF Nos. 19-20.) Then, later in the day, he would go to the gym while remaining on the clock and “take” that meal break. (UMF No. 20.)

In December 2014, another RSR told Scott Clark (“Clark”), Plaintiff’s direct supervisor and a District Sales Manager for Odwalla, that he saw Plaintiff driving in an area that was remote from his route. (UMF No. 21.) That prompted Clark to log onto Telogis’ website, a third party vendor used by Odwalla to monitor the temperature of its trucks to avoid product loss, and utilized its GPS function to locate Plaintiff’s truck. (Declaration of Scott Clark in Support of Motion for Summary Judgment/Adjudication (“Clark Decl.”), ¶ 8.) Plaintiff’s truck was revealed to be in area not recognized as a customer account, which prompted Clark to ask him about his meal break practices and revealed the falsification of his time records. (Id.)

In addition to the foregoing testimony, Plaintiff also asserted at his deposition that he did not take breaks because he had to complete each stop before the customer’s receiving window closed. (Defendant’s Evidence, Exhibit 2 (Plaintiff’s Deposition), p. 68:8-16.) However, Odwalla submits evidence that Plaintiff was always required to take his meal breaks according to policy and had a great deal of discretion with respect to how he serviced his route so that he could take meal breaks. Plaintiff testified that he was able to run his route the way he wanted (i.e., decide the order of the accounts serviced, adjust his route, schedule and breaks on his own accord) and while his work day did not end at any set time, it was his personal preference to end his work day earlier. (UMF Nos. 23-26.)

Specific to receiving windows, Plaintiff admitted that he had the option of returning after the receiving window closed but that it was his preference not to wait, though he could also call someone at the store to reopen the window to receive the product. (UMF Nos. 27-28.) Additionally, he was not required to fully service a location in one stop and could return later to merchandize the store display. (UMF Nos. 29-30.) Plaintiff also had the option of contacting management if he encountered difficulties completing his route, and could also contact the people setting the routes if there was a need for them to be modified. (UMF Nos. 31-32.) Finally, because Plaintiff had discretion regarding when to clock in for the start of his work day, he could adjust the start time of his day to better accommodate the closing of the receiving windows as long as he kept management apprised. (UMF No. 33.)

Given Plaintiff’s admissions that (1) he was never instructed not to take or work through his meal breaks or to take them late, (2) there were no policies or procedures that caused him to miss them or take them late, (3) he was aware of when he was to take those breaks and (4) had discretion over his route and the ability to request changes to it but structured his meal break in such a way to accommodate his own personal preferences, Odwalla has demonstrated that Plaintiff was provided with his meal periods in accordance with California law.

In his opposition, Plaintiff insists that evidence “abounds” that he and other RSRs were not furnished with meal breaks as required by law. However, for the purposes of determining Plaintiff’s standing to bring this PAGA suit, i.e., his status as an “aggrieved employee,” what may have happened to other employees is irrelevant.

With respect to Plaintiff specifically, and citing to his own deposition testimony, he asserts that he worked through his rest and meal breaks. (Plaintiff’s Additional Material Facts in Support of Opposition to Motion for Summary Judgment/Adjudication (“AMF”) No. 35.) However, he explained in his testimony that this was because he wanted to make the receiving routes on his route so that he could complete his schedule when he wanted to, and admitted that there were no policies or procedures by Odwalla that caused him to miss his breaks or take them late. (UMF Nos. 9-12.)

Citing to the deposition testimony of two other employees, Plaintiff insists that working through meal and rest breaks was part of Odwalla’s corporate culture and it had been a longstanding and continuous practice for RSRs to have to work through those breaks. (UMF Nos. 20-21.) However, one of the employees was referring to the culture of the company as it existed in 2010 when he was hired, the other explained he did not know of the company encouraging the practice of skipping meal breaks, and neither of their testimony speaks to whether Plaintiff in particular was deprived of his meal (and rest) breaks by Defendant. Further, even if Plaintiff and these other employees worked through their meal breaks, that does not necessary create liability on the part of Odwalla. In Brinker Restaurant Group, supra, the California Supreme Court concluded that “the employer is not obligated to police meal breaks and ensure no work thereafter is performed. Bona fide relief from duty and the relinquishing of control satisfies the employer’s obligations, and work by a relieved employee during a meal break does not thereby place the employer in violation of its obligations and create liability for premium pay ….” (Brinker Restaurant Group v. Superior Court, supra, 53 Cal.4th at 1040.) Plaintiff testified he was aware of Odwalla’s meal break policies, and structured them as he did in order to accommodate his schedule preferences, i.e., finishing earlier so that he could go to the gym. While Plaintiff also cites testimony where he stated that in 2015 one of his supervisors spoke to him after noticing he failed to punch out and in for lunch and described, in his separate statement, that supervisor as concerned only with the records and not whether he actually took a break, the testimony does not reflect as much. (AMF No. 38.) In actuality, Plaintiff testified that when the supervisor inquired as to why he did not punch in and out for lunch, he explained that he had forgotten to take the break, and the supervisor responded that he would not dock Plaintiff attendance points for forgetting to do so. (Id.)

Plaintiff proffers additional evidence, principally deposition testimony, which is ultimately not helpful to his status as an aggrieved employee because it speaks to other RSRs and not himself. Additionally, much of this evidence consists of employees explaining that they skipped breaks in order to complete their routes, but “courts have not hesitated to grant summary judgment where plaintiffs have skipped breaks of their own accord due to pressure they feel to complete their job in a given amount of time, absent evidence that their employer took action to prevent or impede employees from taking their meal or rest breaks.” (Cleveland v. Groceryworks.com, LLC (N.D. Cal.) 200 F.Supp.3d 924, 946.) When it comes to determining what suffices to give rise to liability for failure to provide breaks, courts have agreed that “[l]iability for failure to provide meal breaks and rest breaks is premised on the employer’s actions, and not necessarily the employee’s actions.” (Carrasco v. C.H. Robinson Worldwide, Inc. (E.D. Cal. 2013) 2013 WL 6198944, *9.) Plaintiff does not present any evidence that Odwalla ever coerced or pressured him not to take his meal breaks; the evidence before the Court only supports Defendant’s contention that any missed breaks or improper punching in on the time clock was the result of Plaintiff’s actions to accommodate his personnel scheduling preferences, and nothing more.

Kennedy also insists that Odwalla should have known that he was working through his meal breaks because it is “fully capable of monitoring its RSRs” through the Telogis GPS system, through Kronos (its timekeeping system) time punches, and through document registers produced by handheld devices maintained by the RSRs. (Plaintiff’s Opp., 4:4-9.) However, per Odwalla’s evidence, which Plaintiff fails to dispute, it has no automatic or systematic means of comparing Telogis information with Kronos time punches or data generated through the handheld devices, and has never required that management continuously monitor the location of its trucks through the Telogis GPS. (Clark Decl., ¶¶ 5, 7.) Further, even when location of the truck is shown, the website provides no information regarding where the actual RSR is or what they are doing. (Id., ¶ 6.) Additionally, Plaintiff does not dispute that he recorded false time punches, thereby creating a presumption that he was not working during those times. (UMF No. 50.) Importantly, Defendant had “no obligation to sift through the volumes of electronic data produced by the scanning devices to determine whether [Plaintiff was] actually taking [his] authorized breaks.” (Yvette v. Green, et al. v. Federal Express Corporation (9th Cir. 2015) 614 Fed.Appx.905, 908.) The law does not permit an employee to “manipulate the process and manufacture claims by skipping breaks … entitling [him] to compensation of one hour or pay for each violation.” (White v. Starbucks Corp. (N.D. Cal. 2007) 497 F.Supp.2d 1080, 1089.) In sum, the evidence supports Odwalla’s contention that Plaintiff was not knowingly permitted to work off the clock.

Thus, Plaintiff fails to raise a triable issue of material fact with regard to meal break violations suffered by him personally, and does not qualify as an “aggrieved employee” based on conduct upon which the third cause of action is predicated.

With respect to the fourth cause of action, both Odwalla and Plaintiff essentially rely on the exact same evidence and arguments as they did for the preceding cause of action relating to meal breaks. Odwalla first proffers evidence that it has a policy of providing its non-exempt employees, like Plaintiff, 15 minute paid rest periods, inclusive of 5 minutes of walking time. (UMF No. 34.) These employees are authorized and permitted to take a 15 minute paid rest break, during which they are relieved of all duties, for every four hours worked or a major fraction thereof. (UMF No. 35.) All employees, including Plaintiff, received, acknowledged, and received training on Odwalla’s meal period and rest break policies. (UMF No. 36.)
Plaintiff alleges that in order to complete his assigned route he could not take rest breaks. (Complaint, ¶ 20.) However, as the undisputed evidence set forth above demonstrates, there was no set deadline for Plaintiff to finish his route each day, but his personal preference was to finish earlier, between 11:30 a.m. and 12:30 p.m. so that he could complete his workout at the gym. (UMF No. 37.) Importantly, there is a distinction between “being ordered to [skip] breaks and being ordered to complete one’s assigned tasks, which results in one skipping breaks.” (Lopez v. Wendy’s International, Inc. (C.D. Cal. 2011) 2011 WL 6967932, *3.) Here, Plaintiff testified at his deposition that he was never told that he could not take a rest break. (UMF No. 38.) When viewed in toto, the foregoing evidence is sufficient to establish that Odwalla provided Plaintiff with rest breaks in accordance with California law.

Plaintiff’s opposition relies on the same evidence discussed above with respect to the meal break claim. Thus, Plaintiff once again relies, improperly, on the experiences of other RSRs, which are irrelevant for the purposes of determining his standing to bring this PAGA action. He otherwise fails to present any evidence that Odwalla ever coerced or pressured him not to take his rest breaks; the evidence before the Court only supports Defendant’s contention that any missed breaks or improper punching in on the time clock was the result of Plaintiff’s actions to accommodate his personnel scheduling preferences, and nothing more.

Therefore, Plaintiff fails to raise a triable issue of material fact with regard to rest break violations allegedly suffered by him personally, and does not qualify as an “aggrieved employee” based on conduct upon which the fourth cause of action is predicated.

Plaintiff’s failure to pay claims, i.e., the first, second and fifth causes of action, are predicated entirely on the notion that he was entitled to premium pay for rest and meal breaks missed and was not provided with those amounts timely (Labor Code § 204) or upon his termination (Labor Code § 203) and thus received an inaccurate wage statement (Labor Code § 226). Because Plaintiff has not established a triable issue with regard to whether he was provided with those breaks by Odwalla, it follows that his claims which depend upon him not receiving those breaks in order to qualify for premium pay and then not receiving that pay also fail. Thus, Plaintiff does not qualify as an “aggrieved employee” based on the conduct upon which the first, second and fifth causes of action are predicated.

In the remaining two causes of action, Plaintiff alleges that Odwalla failed to provide him with his employment and personnel records upon request in violation of Labor Code sections 226, subdivision (c), and 1198.5. In asserting that Plaintiff is not aggrieved with respect to these claims, Defendant first contends that he has not suffered a violation of these Labor Code sections because he did not direct his records request to its designated recipient. According to Odwalla, the “HeRe! Team” is the appropriate addressee for requests for personnel and employment records. (UMF No. 58.) In support of this contention, Odwalla cites to portions of Plaintiff’s deposition testimony, as well as various exhibits from that deposition that consist of photographs of posters displayed at Plaintiff’s former worksite. These materials, however, do not establish that HeRe! Is Defendant’s designated recipient for employee requests received pursuant to Labor Code sections 226 and 1198.5. First, Odwalla does not articulate what exactly “HeRe!” is or its relationship to the company, nor is this explained by the deposition testimony cited. Second, the exhibits cited from Plaintiff’s deposition provide no explanation for what HeRe! is or specifically state that HeRe! is designated as the “person” to whom employee records requests are to be made. Moreover, Plaintiff presents evidence that he addressed his two requests for documents to Odwalla’s corporate headquarters and each clearly identified what records were being sought. (AMF Nos. 331, 333.) Consequently, Defendant’s first argument is unavailing.

Next, Odwalla argues that Plaintiff is not “aggrieved” because it offered him payment of the maximum penalties. According to Odwalla’s evidence, on April 28, 2016, it sent Plaintiff a check for the maximum amount of penalties ($1,500) under Sections 226, subdivision (f), 1198.5, subdivision (k) and 2699, subdivision (a). (Declaration of Lena K. Sims in Support of Motion for Summary Judgment/Adjudication, Exhibits A-D.) It therefore contends that any violation of the aforementioned code sections is mooted. However, as Plaintiff notes, he did not accept the settlement offer, which did not contain attorney’s fees. (AMF Nos. 334, 335.) Plaintiff retained an attorney in order to request his records; arguably, those fees are recoverable, thus the settlement offered did not moot the records claims.

However, Odwalla also submits evidence that Plaintiff was the only current or former employee who requested personnel or employment records from the company, and therefore is the only individual who can maintain this claim. (Kerba Decl., ¶ 3.) Because Plaintiff does not share this claim with the current and former employees he represents in this PAGA action, and does not in fact share any claim with them for the reasons articulated above, he does not qualify as an “aggrieved employee” who can maintain this PAGA action on behalf of others. (See Miguel v. JP Morgan Chase Bank, N.A. (2013) 2013 WL 452418, *10 [stating that the PAGA statute “indicates that [an] employee can pursue claims on behalf of others only if he also pursues claims on behalf of himself; the statute allows an aggrieved employee to bring a civil action ‘on behalf of himself or herself and other current or former employees,’ not on behalf of himself or other employees”].) Plaintiff is not a representative of other employees if they share nothing in common. In consideration of this, Plaintiff therefore cannot maintain any of the PAGA claims.

Plaintiff insists that even if the Court were to find in Odwalla’s favor on the issue of whether he qualifies as aggrieved under PAGA, summary judgment is inappropriate because he also asserts individual claims for recovery of unpaid wages and statutory claims. Odwalla, conversely, asserts that Plaintiff has pleaded his claims as PAGA claims only because he likely knew that his individual claims were subject to an arbitration agreement. While it is true that PAGA is referenced in each separate cause of action in the Complaint, Plaintiff also expressly pleads in each that he is personally aggrieved, i.e., suffered a violation of the particular statutes. Thus, the Complaint can be interpreted as Plaintiff asserting claims both in his individual and representative capacities. Given the preceding analysis, however, the only claims remaining in the Complaint are individual claims by Plaintiff for violation of Labor Code sections pertaining to obtaining access to one’s employment and personnel records.