2015-00188249-CU-OE

Robert Sorensen vs. Dignity Health

Nature of Proceeding: Motion for Summary Judgment and/or Adjudication

Filed By: McQueen, Daniel J.

Defendant Dignity Health’s Motion for Summary Judgment or, Alternatively Summary Adjudication, is granted.

Dignity Health’s Evidentiary Objections to the Plaintiff’s Exhibits to the Declaration of Stuart Talley are sustained as to the Exhibit 10, produced by plaintiff in the litigation. This Exhibit lacks authentication, foundation, and personal knowledge. The objections of Dignity Health to the remaining exhibits that were produced by Dignity in this litigation are overruled. See Formal Order on Dignity Health’s Objections to Plaintiff’s Evidence.

Plaintiff Robert Sorenson sues his former employer Dignity Health, alleging the following causes of action: (1) Failure to compensate for all hours worked; (2) Failure to provide accurate itemized wage statements (i.e., paystubs); (3) Waiting time penalties under Labor Code section 203; and (4) Unfair business practices under Business and Professions Code sections 17200, et seq.

Plaintiff worked as an hourly computer technician. Plaintiff was

assigned a number of “on-call” weeks where he was required to respond to computer-related requests after normal business hours and on the weekend. Plaintiff was paid for all time he actually spent responding to on-call requests. Plaintiff contends that because all of his time spent on-call (the entire week) was primarily for the benefit of Dignity Health, he should have been paid for all other time during the week in addition to his regular working hours, even if he was not responding to on-call requests.

Dignity contends that since Plaintiff admitted at his deposition that [when not working] he engaged in a variety of purely personal pursuits while on call, and he was effectively able to use the time for his own purposes, no reasonable jury could conclude that plaintiff’s on-call time was spent primarily for Dignity’s benefit or that such time was compensable. Since the “failure to compensate for all hours worked” claim is based only on Plaintiff’s on-call theory, and all the other causes of action are derivative, Dignity contends that it is entitled to summary judgment. The Court agrees.

Dignity offers the following facts in its separate statement:

Plaintiff was hired by Dignity on October 1, 2012. (Undisputed Material Fact (“UMF”) 1.) He worked in the End User Services Department as a technician. (UMF 2.) As a technician, Plaintiff was responsible for “fix[ing] any computer problem that came up….

Just any computer problem you could think of.” (UMF 3.) Plaintiffs regular work hours were 7:00 a.m. to 4:00 p.m., Monday through Friday. (UMF 4.) Dignity operates 24 hours a day, seven days a week. (Sorenson Depo., 59:18-23; 61:17-22.’) Computer issues sometimes occur after regular business hours. (Id.) Thus, Plaintiff was sometimes scheduled to remain “on-call” to resolve computer-related problems after hours and on weekends. (UMF 5.) Plaintiff s job description stated he was expected to “participate[] in on-call rotation and provide[] on-call support.” (UMF 6.) Plaintiff understood that providing on-call support was one of his job responsibilities. (UMF 7.) Plaintiff shared on-call responsibilities with other employees. (UMF 8.) Generally speaking, computer-related issues were routed first through Dignity’s “help
desk.” (UMF 8.) If the help desk personnel could not resolve the issue, the requests were re-routed to technicians such
as Plaintiff. (UMF 9.) Each week, Plaintiffs manager would assign a “primary” and a “secondary” on-call technician to cover the week. (UMF 11.) On-call requests were first sent to the primary. If the primary did not respond, requests rolled over to the secondary. If neither the primary nor secondary responded, requests rolled over to the lead technician. (UMF 12.) From October through December 2012, Plaintiff was actively engaged in on-call responsibilities during approximately one week. (UMF 13.) During 2013, Plaintiff was actively engaged in on-call responsibilities during approximately five weeks. (UMF 14.) During 2014, Plaintiff was actively engaged in on-call responsibilities during approximately four weeks. (UMF 15.) In 2015, Plaintiff was actively engaged in on-call responsibilities during approximately one week. (UMF 16.) Requests were sent to Plaintiff by text message. (Sorenson Depo., 70:19-25; 71:24-72:13.) Each request was assigned a “ticket number”. (Sorenson Depo., 25:4-8.) When he worked on a request during his on-call time, Plaintiff recorded the ticket number on his time sheets in the “line item comments” section. (UMF 17.) Depending on their complexity Plaintiff could resolve the on-call tickets he received over his cell phone while out and about in the community, at home, or by traveling to the relevant Dignity facility. (UMF 18.)

The number of tickets Plaintiff actively worked on during his on-call weeks varied. While on call Plaintiff estimates he received an average of approximately two to three

after-hours tickets – in total – from Monday to Friday, and that he almost always got at least one ticket from Saturday to Sunday. (UMF 19.) Plaintiff recalls that the highest number of tickets he received on a weekend was “probably over ten.” (UMF 20.) Plaintiff admitted that while on call, for example, he went camping and fishing, engaged in various household-related activities, such as cooking and grocery shopping, watched television, participated in fantasy football activities, read for pleasure, played sports, slept, took care of his daughter, had friends over to his house, went to a Kings basketball game, and worked a second job at a winery. (UMF 23). Defendant contends that this evidence shows there were no limitations placed on his freedom to engage in personal activities during his on-call time. Plaintiff further concedes Dignity did not place any geographic restrictions on where he could travel and no one ever told him he was required to stay home while on call. (UMF 24.) Also, as indicated. Plaintiff responded to many on-call requests through a cell phone. (Sorenson Depo. 72:24-73:24; 121:9-22.) This allowed Plaintiff the freedom to engage in personal activities anywhere there was cell phone service while on call. In fact, during some of his on-call time, Plaintiff rarely traveled to locations where there was no cell phone servicer. (UMF 25.) Plaintiff had the ability to trade on-call shifts with other employees and did so on two to three occasions. (UMF 26) [see, e.g. Gomez v. Lincare, Inc. (2009) 173 Cal. App. 4th 508, 524; one of the “factors” to be considered is whether the on-call employee could easily trade on-call responsibilities.]

Dignity contends that the fact that plaintiff was: obligated to respond to on-call tickets within 15 minutes, (UMF 27.) that he understood he could drink in moderation while on call, he was not permitted to “come in drunk, ” (UMF 28.) and plaintiff’s articulated concern that he was generally afraid that an on-call request might arrive while he was engaged in a personal activity and, as such, he either self-limited his personal activities or did not enjoy them as much as he might have otherwise, is insufficient as a matter of law to meet the test of compensable time off, i.e. to show that all on-call time was primarily for Dignity’s benefit. (Sorenson Depo., 109:10-18; 112:18-21; 115:23-25.)

An employer may lawfully require employees to remain on “standby” or “on-call” status. Mendiola v. CPS Security Solutions. Inc.(2015) 60 Cal.4th 833, 840. On-call time is compensable if it is spent “primarily for the benefit of the employer.” On-call time need not be paid unless it qualifies as “hours worked.” Id. “California courts considering whether on-call time constitutes hours worked have primarily focused on the extent of the employer’s control.” Id. When “an employer directs, commands or restrains an employee from leaving the work place [while on call], that employee must be paid.” Id. However, if the employee is free to use “the time effectively for his or her own purposes,” no compensation is due. Id. Generally speaking, California (and federal) courts look to whether the on-call waiting time “is spent primarily for the benefit of the employer and its business.” Gomez v. Lincare, supra, at p. 523. If so, the time is compensable. If, however, the employee can use the time primarily for him or herself, no additional pay is owed. Courts “have identified various factors bearing on an employer’s control during on-call time: (1) whether there was an on-premises living requirement; (2) whether there were excessive geographical restrictions on employee’s movements; (3) whether the frequency of calls was unduly restrictive; (4) whether a fixed time limit for response was unduly restrictive; (5) whether the on-call employee could easily trade on-call responsibilities; (6) whether use of a pager could ease restrictions; and (7) whether the employee had actually engaged in personal activities during call-in time.'” Id. at 841, quoting from Owens v. Local No. 169 (9th Cir. 1922) 971 F.2d 347, 350-355.

The court in Mendiola granted the employers motion for summary judgment despite the fact that the employer exerted far more control over the employees, who were security guards. In that case, guards: (1) could not consume any alcohol; (2) could never have visits from their children or pets; and (3)could only host adult visitors with express pre-approval, and were required to remain at the work-site during the entirety of their on-call time. “An on-call guard wanting to leave the worksite had to notify a dispatcher and indicate where he or she would be and for how long. If another employee was available for relief, the guard had to wait onsite until the reliever arrived. If no reliever was available, the guard had to remain onsite, even in the case of a personal emergency. If relieved, a guard had to be accessible by pager or radio phone and to stay close enough to the site to return within 30 minutes.” Id. Mendiola, 60 Cal.4th at 837. In another case decided on summary judgment, Gomez v Lincare (2009) 173 Cal.App.4th 508, the employer prevailed and the employees’ on call time was also held non compensable. In that case, all employees who provided services in patients’ homes were on call at all times (not just a few weeks a year), they were not allowed to drink any alcohol and were required to respond to a call within 30 minutes and respond to patient calls in person within two hours. The Gomez court explained: “We do not believe plaintiffs’ unilateral decisions to avoid personal activities while on call changes the fact that they did engage in some activities and could have continued to do so.

The following cases, among others cited in defendant’s brief, have held that a 15 minute or less response time is not unduly restrictive: Owens, supra, 971 F.2d at 350, Berry v County of Sonoma (9th Cir 1994) 30 F.3d 1174, 1187. Federal cases interpreting on-call time under the Fair Labor Standards Act are persuasive and may be relied (as did the Supreme Court of California in Mendiola) on as long as there is no controlling California law to the contrary.

The facts that support the motion are essentially undisputed, although plaintiff contends many of them are undisputed but “incomplete.” The facts contended to be “disputed” are not actually supported by admissible evidence that the employer exerted the type of control sufficient for a reasonable trier of fact to conclude that all on -call time was primarily for the benefit of the employer. For example, plaintiff’s contention that he felt compelled to stay at home most of the time is not the type of geographic restriction that entitled plaintiff to compensation for that time. (See Mendiola, Gomez) Plaintiff also disputes the fact that he was able to drink in moderation. Plaintiff contends that since he was not permitted to consume alcohol if it would affect him in “any detectable manner” as set forth in the Drug and Alcohol Abuse/Fitness for Duty policy, he was subject to too much employer control during his on-call hours. However, in Gomez v Lincare (2009) 173 Cal.App.4th 508, 524, the court held that on-call employees who could never drink any alcohol while on call were not entitled to compensation for all hours worked.

Plaintiff’s reliance on the case Augustus v ABM Security Services Inc. (2016) 2 Cal.5th 257, is misplaced. That case is not relevant as it concerned rest breaks in which the guards were required to continue their work, not on-call time. Plaintiff’s additional facts in his own separate statement concern the nature of the work at the hospital and the fact that the hospital is a 24/7 business. These facts do not create an issue of material fact as to whether plaintiff’s on-call time was primarily for the benefit of the employer. Plaintiff appears to contend that unless he was free of any employer control and had no restrictions on his personal activities, he should be paid for the time. This is not the

test for compensable on-call time. On-call time presupposes at least some level of control over an employee’s freedom.

In evaluating a motion for summary judgment or summary adjudication the court engages in a three step process. The Court first identifies the issues framed by the pleadings. The pleadings define the scope of the issues on a motion for summary judgment or summary adjudication. (FPI Dev. Inc. v. Nakashima (1991)

231 Cal. App. 3d 367, 381-382). Because a motion for summary judgment or summary adjudication is limited to the issues raised by the pleadings (Lewis v. Chevron (2004) 119 Cal. App. 4th 690, 694), all evidence submitted in support of or in opposition to the motion must be addressed to the claims and defenses raised in the pleadings. An issue that is “within the general area of issues framed by the pleadings” is properly before the court on a summary judgment or summary adjudication motion. (Lennar Northeast Partners v. Buice (1996) 49 Cal. App. 4th 1576, 1582-1583.) The Court cannot consider an unpleaded issue in ruling on motion for summary judgment or adjudication. Roth v. Rhodes (1994) 25 Cal.App.4th 530, 541. The papers filed in response to a defendant’s motion for summary judgment may not create issues outside the pleadings and are not a substitute for an amendment to the pleadings. Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1342.

As plaintiff has offered no evidence in the opposition that raises an issue of material fact as to the employer’s control over plaintiff during his on-call hours, the motion for summary adjudication of each cause of action, and the motion for summary judgment, are granted. The Court finds that the undisputed evidence as well as plaintiff’s evidence that purports to dispute Dignity’s evidence does not meet the Mendiola test to require compensation.