2009-00065342-CU-OE

Michael Hodge vs. T and S Business Corporation

Nature of Proceeding:    Motion for Summary Adjudication

Filed By:   Reynolds, Stephanie

The motion of Plaintiff Michael Hodge (“Hodge”) and the class he represents
(collectively “Plaintiffs”) for summary adjudication of issues is DENIED.  Defendant T &
S Business Corporation (“T & S”) twenty-sixth affirmative defense is STRICKEN sua
sponte.

Overview

This is a wage-and-hour class action.  T & S operates several IHOP Restaurants in
California.  Plaintiffs have worked in these restaurants as nonexempt employees.  In
the operative Second Amended Complaint (“SAC”), Plaintiffs allege that T & S
unlawfully required them to authorize automatic deductions from their paychecks to
cover employer-provided meals.  According to Plaintiffs, at least some of them did not
take the meals for which they were required to pay.  Plaintiffs allege that the automatic
deductions resulted in violations of California’s minimum wage laws as well as Wage
Order No. 5-2001 and additional statutes.

The SAC contains eight causes of action.  T & S’ answer to the SAC contains 37
affirmative defenses.  By the instant motion, Plaintiffs move for an order summarily
adjudicating issues within the first, second, sixth and seventh causes of action.
Plaintiffs also move for summary adjudication of T & S’ twenty-sixth affirmative
defense.

Discussion
The First Cause of Action for “Improper Wage Deductions for Employer
Provided Meals in Violation of California Code of Regulations (California
Industrial Welfare Commission Wage Order No. 5-2201) Section 10, and
California Labor Code Sections 221 and 1198, By Persons Employed in the
State of California”

Summary adjudication is DENIED.

In their moving papers, Plaintiffs do not ask the court to summarily adjudicate the
entire first cause of action.  Instead, they seek adjudication of five issues (Issue Nos. 1
-5 in the Moving Separate Statement) that they contend the first cause of action
encompasses.  Two of the five issues relate to whether T & S violated regulations by
making deductions for employer-provided lunch and dinner meals.  The remaining
three issues address whether Plaintiffs violated regulations by failing to maintain
records in relation to employer-provided breakfast meals, lunch meals, and dinner
meals, respectively.

In its Opposition, T & S argues that Plaintiffs are not entitled to summary adjudication
of the five issues in question because an order resolving these issues would not
dispose of the entire first cause of action.  As T & S recognizes, the court may only
enter an order summarily adjudicating an entire cause of action, an entire affirmative
defense, an issue of duty or a claim for damages.  (CCP § 437c(f)(1).)

In the Reply, Plaintiffs attempt to recharacterize their motion as one for summary
adjudication of issues of duty.  Thus, they argue that the court should enter an order
that T & S owed them five duties in relation to deductions and recordkeeping for
employer-provided breakfasts, lunches and dinners.

The court rejects Plaintiffs’ recharacterization.  The Notice of Motion, the Moving
Memorandum of Points and Authorities and the Moving Separate Statement
unambiguously frame the issues for adjudication as whether T & S violated
regulations, not merely whether it had duties not to make deductions and to maintain
proper records.  Because the moving papers are aimed at regulatory violations–not
merely duties–the court will not adjudicate any issues of duty in conjunction with the
first cause of action.

Moreover, the court agrees with T & S that resolution of the issues actually raised will
not dispose of the entire first cause of action.  Whereas the issues in the motion only
encompass the making of deductions for employer-provided meals and associated
recordkeeping, the first cause of action presents the additional issues whether T & S
violated statutory provisions and whether deductions were made when employees did
not actually take meals.  (See SAC, ¶ 21; see also Gutierrez v. Girardi (2011) 194
Cal.App.4th 925, 931 [party moving for summary judgment must confront the
allegations in the pleadings because the pleadings frame the issues for adjudication].)
Because the order that Plaintiffs seek would not dispose of the entire first cause of
action, summary adjudication is unavailable.  (CCP § 437c(f)(1).)

In denying summary adjudication of issues one through five, the court is aware of
cases holding that a court may summarily adjudicate a discrete claim within a cause of
action if the claim could have been pleaded as a separate cause of action.  (See, e.g.,
Lilienthal & Fowler v. Superior Court (1993) 12 Cal.App.4th 1848, 1854.)  Plaintiffs,
however, have not invoked this basis summary adjudication, and T & S has not had an
opportunity to address its applicability.  Consequently, the instant motion does not
present an occasion for the court to summarily adjudicate discrete claims that would
not completely dispose of the first cause of action.

Because the court denies summary adjudication for the reasons above, it does not
address the parties’ further arguments in support of and in opposition to the request for
summary adjudication of issues under the first cause of action.

The Second Cause of Action for “Failure to Pay Minimum Wage in Violation of
California Code of Regulations (California Industrial Welfare Commission Wage
Order No. 5-2001) Section 4, and California Labor Code Section 223, 1182.11,
1182.12, 1194, 1194.2, 1197 and 1198, By Persons Employed in the State of
California”

Summary adjudication is DENIED.

The analysis of the issues posited for summary adjudication under the second cause
of action tracks the analysis in the preceding discussion.  In their moving papers,
Plaintiffs identify five issues for adjudication.  Two of the five issues focus upon the
deduction of wages for employer-provided breakfast and lunch meals, and the other
three issues relate to T & S’ asserted failure to maintain appropriate records.
However, even an order in Plaintiffs’ favor on these five issues, which all relate to
regulatory violations, would not completely dispose of the second cause of action,
which encompasses statutory violations.  In addition, whereas the second cause of
action encompasses an allegation that T & S violated the law by deducting for meals
that employees never took, (SAC, ¶ 27), the instant motion does not address that
allegation.  Consequently, the five issues in question (Issue Nos. 6-10) cannot yield an
order for summary adjudication.

The Sixth and Seventh Causes of Action for Unfair Business Practices

Summary adjudication is DENIED.

Plaintiffs’ sixth and seventh causes of action incorporate by reference all the regulatory
and statutory violations alleged in antecedent causes of action.  (See SAC, ¶¶ 50, 52,
56, 58.)  In addition, Plaintiffs allege that T & S engaged in unfair business practices,
not merely by committing the violations, but also by “failing to take immediate and
appropriate measures to address these violations… .”  (Id. ¶ 52.)  The issues for which
Plaintiffs seek summary adjudication, however, are limited to whether T & S failed to
pay minimum wages and whether it made improper wage deductions.  Hence,
adjudication of the issues would not dispose of Plaintiffs’ allegation T & S committed
unfair business practices by failing to take measures to address such violations.  As a
consequence, Plaintiffs are not entitled to summary adjudication.

The Twenty-Sixth Affirmative Defense

T & S’ twenty-sixth affirmative defense is STRICKEN.

T & S’ twenty-sixth affirmative defense reads, “[t]he claims of Plaintiff are barred, in
whole or in part, because Defendant’s business practices are and were not ‘unlawful’
in that Defendant complied with all applicable statutes and regulations in payment of
wages to Plaintiff.”  The parties dispute whether there is any triable issue of material             fact in connection with this “defense.”  The court need not resolve this dispute because
the twenty-sixth affirmative defense is not a defense at all.  Rather, it is a denial of the
unlawfulness that Plaintiffs have the burden of proving as part of their case in chief.  In
other words, T & S does not bear any burden of demonstrating that its practices were
not unlawful, and thus there is no “affirmative” defense associated with that
proposition.

Pursuant to its authority under CCP §§ 436, the court strikes the twenty-sixth
affirmative defense as improper and irrelevant.

Evidentiary Objections

All of Plaintiffs’ objections that the evidence is irrelevant are SUSTAINED.  The
balance of the objections are OVERRULED.

Conclusion

The motion for summary adjudication is DENIED.

On its own motion, the court STRIKES the twenty-sixth affirmative defense in T & S’
answer to the SAC.

The minute order is effective immediately.  No formal order pursuant to CRC 3.1312 or
further notice is required.