Case Number: BC619720 Hearing Date: March 16, 2018 Dept: 47

Lesnia Mojica v. Symaction Communications, LLC, et al.

MOTION FOR SUMMARY ADJUDICATION (FURTHER HEARING)

MOVING PARTY: Defendants Symaction Communications, LLC, Alison Wissot, and Michael Wissot

RESPONDING PARTY(S): Plaintiff Lesnia Mojica

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff alleges wage and hour violations, including a PAGA cause of action for civil penalties.

Defendants Symaction Communications, LLC, Alison Wissot, and Michael Wissot move for summary adjudication.

TENTATIVE RULING:

The Court adopts as its final ruling the proposed tentative ruling issued on February 20, 2018 that Defendants Symaction Communications, LLC, Alison Wissot, and Michael Wissot’s motion for summary adjudication is DENIED as to Issue No. 1 re: the third cause of action, Issue No. 2 re: the fourth cause of action, and Issue No. 3 re: the seventh cause of action.

DISCUSSION:

Motion For Summary Adjudication

Plaintiff’s Supplemental Request For Judicial Notice

Plaintiff requests that the Court take judicial notice of: (1) the State of California Department of Industrial Relations, “Domestic Worker Bill of Rights – Frequently Asked Questions”; (2) the legislative history for the Domestic Worker Bill of Rights. Request No. 1 is GRANTED. “[W]e may take judicial notice of this data since they are contained in a publication issued by an agency of the state. (Watson v. Los Altos School Dist. (1957) 149 Cal.App.2d 768, 772-773 [308 P.2d 872].)” Board of Education v. Watson (1966) 63 Cal.2d 829, 836. Request No. 2 is GRANTED. The Court may take judicial notice of legislative history materials relevant to a material issue. See Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 544 n.4.

The Court continued the hearing on this motion to permit the parties to submit supplemental briefing on the issue of whether there is a triable issue of material fact as to whether Plaintiff is a personal attendant for the purposes of her wage and hour claims.

Plaintiff argues that Guerrero v. Superior Court (2013) 213 Cal.App.4th 912, cited by Defendant for the proposition that the time Plaintiff spent cooking and driving the children around, were personal attendant duties, is “outdated, unpersuasive, and easily distinguishable from the facts of this action.” Plaintiff’s Supplemental Brief at Page 2:14-15. In this regard, it is clear that Guerrero, which was decided in 2013, is not controlling as to Labor Code § 1451, which became effective January 1, 2014, to the extent that Guerrero conflicts with Labor Code § 1451.

Labor Code, § 1451 provides in pertinent part as follows:

As used in this part, the following definitions apply:

(a)

(1) “Domestic work” means services related to the care of persons in private households or maintenance of private households or their premises. Domestic work occupations include childcare providers, caregivers of people with disabilities, sick, convalescing, or elderly persons, house cleaners, housekeepers, maids, and other household occupations.

. . .

(c)

(1) “Domestic work employer” means a person, including corporate officers or executives, who directly or indirectly, or through an agent or any other person, including through the services of a third-party employer, temporary service, or staffing agency or similar entity, employs or exercises control over the wages, hours, or working conditions of a domestic work employee.

. . .

(d) “Personal attendant” means any person employed by a private householder or by any third-party employer recognized in the health care industry to work in a private household, to supervise, feed, or dress a child, or a person who by reason of advanced age, physical disability, or mental deficiency needs supervision. The status of personal attendant shall apply when no significant amount of work other than the foregoing is required. For purposes of this subdivision, “no significant amount of work” means work other than the foregoing did not exceed 20 percent of the total weekly hours worked.

Lab. Code, § 1451(a), (c) & (d)(bold emphasis and underlining added).

In this regard, Guerrero is consistent with Labor Code § 1451(c) in that it cites Wage Order No. 15-2001’s definition of a “personal attendant” as follows:

“ ‘Personal attendant’ includes baby sitters and means any person employed by a private householder or by any third party employer recognized in the health care industry to work in a private household, to supervise, feed, or dress a child or person who by reason of advanced age, physical disability, or mental deficiency needs supervision. The status of ‘personal attendant’ shall apply when no significant amount of work other than the foregoing is required.” (Cal. Code Regs., tit. 8, § 11150, subd. 2(J), italics added). The trial court ignored the language we have italicized.

Guerrero, supra, 213 Cal.App.4th at 956 (bold emphasis added).

Defendant argues that Guerrero’s discussion of housework “related to the individual,” which includes “meal preparation, bed making, washing of clothes and other similar services” would not be counted toward the 20% threshold. The Court does not find Guerrero’s discussion of such chores persuasive to the extent it would expand chores beyond “supervis[ing], feed[ing], or dress[ing]” a child, as set forth in Labor Code § 14519c). Thus, Guerrero’s discussion of the Fair Labor Standards Act (“FLSA”) companionship exemption distinguishing household work related to the care of the recipient from general household work unrelated to the care of the recipient is not persuasive to the extent it suggest that “[c]leaning a spill by the client would be non-routine care more related to the individual than to the general household, and would not be included in the twenty percent figure.” Guerrero, supra, 213 Cal.App.4th at 942. This is because Labor Code § 1451(c) does not include “cleaning” of any type which could be excluded from the 20% threshold figure.

As such, the Court finds that tasks such as cleaning, shopping (no children in tow) and washing clothes (cleaning clothes) would could toward the 20% threshold, while tasks such as preparing food for the children (part of “feeding” the children), and driving the children to their various activities (part of “supervising” the children would not count toward the 20% threshold. On the other hand, cooking food for the entire family (not in connection with actually feeding the children) would could toward the 20% threshold (see Department of Industrial Relations, The Domestic Worker Bill of Rights – Frequently Asked Questions)(Pltf’s Supplemental RJN, Exh. A).

In this regard, because Defendant must prevail as to the entire period[1] of Plaintiff’s employment, if there is any period where Plaintiff’s non-personal attendant work exceeded 20%, the obligation to pay Plaintiff for missed meal and rest breaks would be triggered for that period.

In this regard, the Court considers the three “Blocks” set forth in Defendant’s supplemental brief:

¿ Block 1: Start date (June 2012) to early-August 2014:

Plaintiff indicates that during this period she worked on average 5 days per week for an approximate average of 50 hours per week. Supplemental Declaration of Lesnia Mojica, ¶ 7. During this time, she estimates that she spent approximately 2 hours per week cleaning the children’s room (counts toward 20% threshold), approximately 1.5 hours per week doing laundry (counts toward 20% threshold); approximately 3 hours per week preparing food for the children and cleaning up afterwards (2 hours will be excluded from the 20% threshold as feeding children; 1 hour for cleaning will count toward the 20% threshold); approximately 5 hours per week driving the children around to their various activities (will be excluded from the 20% threshold as “supervising” the children.

Thus, only 4.50 hours per week out of 50 hours per week, or 9% of Plaintiff’s work was “other than” personal attendant work. As such, Plaintiff has not demonstrated she fell outside the “personal attendant” exception for this period.

¿ Block 2: Mid-August 2014 to August 2015:

Plaintiff indicates that during this period, she worked on average 5 days per week for an approximate average of 50 hours per week. Supplemental Mojica Decl., ¶ 9. Plaintiff indicates that, on average, she spent approximately the first 5 hours of each day running errands and completing various tasks for Mrs. Wissot without a child under Plaintiff’s care to supervise. Id. at ¶ 11. Such errands included cooking and cleaning for the whole family (5 hours per week, which will count toward 20% threshold), pickup up dry cleaning (counts toward 20% threshold), organizing household closets (counts toward 20% threshold), organizing the children’s rooms (counts toward 20% threshold), and packaging clothing to be stored away or thrown away (counts toward 20% threshold), without any children to supervise since they were in school. Id. at ¶ 12.

By Plaintiff’s estimations, she spent approximately 25 hours per week out of 50 hours per week (50%) on errands and various tasks “other than” personal attendant work. Even were the Court to allocate some of Plaintiff’s cooking time toward feeding the children, there is a triable issue of material fact as to whether Plaintiff still spent more then 20% of her time during this period on errands and various tasks “other than” personal attendant work.

As such, a triable issue of material fact exists as to whether Plaintiff was not exempt from the meal and rest break requirements under the “personal attendant” exception during this period.

¿ Block 3: September 1, 2015 through October 31, 2015:

Plaintiff indicates that during this period, she worked on average 5 days per week for an approximate average of 45 hours per week. Supplemental Declaration of Lesnia Mojica, ¶ 10. Plaintiff indicates that, on average, she spent approximately the first 5 hours of each day running errands and completing various tasks for Mrs. Wissot without a child under Plaintiff’s care to supervise. Id. at ¶ 11. Such errands included cooking and cleaning for the whole family (5 hours per week, which will count toward 20% threshold), pickup up dry cleaning (counts toward 20% threshold), organizing household closets (counts toward 20% threshold), organizing the children’s rooms (counts toward 20% threshold), and packaging clothing to be stored away or thrown away (counts toward 20% threshold), without any children to supervise since they were in school. Id. at ¶ 12.

By Plaintiff’s estimations, she spent approximately 25 hours per week out of 45 hours per week (55%) on errands and various tasks “other than” personal attendant work. Even were the Court to allocate some of Plaintiff’s cooking time toward feeding the children, there is a triable issue of material fact as to whether Plaintiff still spent more then 20% of her time during this period on errands and various tasks “other than” personal attendant work.

As such, a triable issue of material fact exists as to whether Plaintiff was not exempt from the meal and rest break requirements under the “personal attendant” exception during this period.

Accordingly, a triable issue of material fact exists as to whether Plaintiff was not exempt from the meal and rest break requirements under the “personal attendant” exception set forth in IWC Wage Order No. 15-2001(1)(B)[2] during the period Mid-August 2014 through October 31, 2015. As noted, Defendant cannot obtain partial summary adjudication for the period (June 2012) to early-August 2014 because that would not completely dispose of a cause of action.

As the Court noted in its prior tentative ruling, a triable issue of material fact exists as to whether was given a reasonable opportunity to take uninterrupted breaks without having to be available for work during those periods. An employer must authorize meal and rest breaks, during which time, the employee is relieved of all duty, is permitted to relinquish control over activities, and is given a reasonable opportunity to take uninterrupted breaks:

In Brinker, the California Supreme Court clarified that an employer is required to make uninterrupted meal periods and rest breaks available to its employees, but is not obligated to ensure that they are taken. (Brinker, supra, 53 Cal.4th at pp. 1034, 1040–1041.) The court summarized its holding as follows: “An employer’s duty with respect to meal breaks … is an obligation to provide a meal period to its employees. 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. What will suffice may vary from industry to industry, and we cannot in the context of this class certification proceeding delineate the full range of approaches that in each instance might be sufficient to satisfy the law.” (Brinker, supra, 53 Cal.4th at p. 1040.)

Koval v. Pacific Bell Telephone Co. (2014) 232 Cal.App.4th 1050, 1058-59 (bold emphasis added).

Dailey also alleged that Sears “routinely interrupted and/or failed to permit, authorize and/or provide” the proposed class members with meal periods and rest breaks as required by law. There is no substantial evidence, however, that Sears employed any policy or routine practice to deprive proposed class members of “off-duty” meal and rest breaks and, accordingly, Dailey failed to show that this allegation could be proved on a classwide basis.

In Brinker, the California Supreme Court clarified that an employer is required to make uninterrupted meal periods and rest breaks available, but is not obligated to ensure that they are taken. (Brinker, supra, 53 Cal.4th at pp. 1034, 1040–1041.) Additionally, an employer may be liable even when it makes rest and meal breaks available to nonexempt employees, if it also requires them to be available for work during those periods. (See Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1104 [56 Cal. Rptr. 3d 880, 155 P.3d 284] [requirement to provide rest/meal periods implies that employee will “be free of the employer’s control during the meal period”]; see also Sotelo, supra, 207 Cal.App.4th at p. 654 [a class may establish [*1001] liability “by proving a uniform policy or practice by the employer that has the effect on the group of making it likely that group members will … miss rest/meal breaks”].)

Dailey v. Sears, Roebuck & Co. (2013) 214 Cal.App.4th 974, 1000-01 (bold emphasis and underlining added).

Here, the fact that Defendants may not have prevented Plaintiff from taking meal and rest breaks, Defendants have not presented evidence that they expressly authorized Plaintiff to take such breaks during which time she was relieved of all duty, was permitted to relinquish control over activities, and was given a reasonable opportunity to take uninterrupted breaks without having to be available for work during those periods.

Moreover, Plaintiff has presented evidence that Plaintiff did not have complete control over how she spent her work time, and Plaintiff could only choose the order in which assigned tasks could be performed. Opp. Facts Nos. 26 – 31; Mojica Depo., Page 193:19-194:25; 200:11-19; Mojia Decl., ¶ 15.

Accordingly, the Court adopts as its final ruling the proposed tentative ruling issued on February 20, 2018 that Defendants Symaction Communications, LLC, Alison Wissot, and Michael Wissot’s motion for summary adjudication is DENIED as to Issue No. 1 re: the third cause of action, Issue No. 2 re: the fourth cause of action, and Issue No. 3 re: the seventh cause of action.

Plaintiff to give notice, unless waived.

IT IS SO ORDERED.

Dated: March 16, 2018 ___________________________________

Randolph M. Hammock

Judge of the Superior Court