Case Name: Santos, et al. v. El Guapos Tacos LLC, et al.
Case No.: 2015-1-CV-285065

This is a wage loss action initiated by Lourdes Santos (“Plaintiff Santos”) and Carolina Chavez-Cortez (“Plaintiff Chavez-Cortez”) (collectively “Plaintiffs”) against defendants Anthony Richard Beers (“Anthony”), James Roberts Beers (“James”) , John Henry Conway, Esq. (“Conway”), David Richard Powell (“Powell”), Jorge Sanchez, Sam Ramirez d.b.a. Chacho’s Tacos, and El Guapos Tacos, LLC (“EGT”).

According to the allegations of the third amended complaint (“TAC”), Plaintiffs were employed by EGT as cooks. During their employment, Plaintiffs were not provided required meal and rest periods, earning statements, or wages.

Plaintiffs allege seven causes of action for: (1) violations of the Private Attorneys General Act (the “PAGA”); (2) failure to provide lawful meal breaks; (3) failure to authorize and permit rest breaks; (4) failure to provide and maintain earnings statement information; (5) failure to pay all wages due timely; (6) unfair competition; and (7) failure to pay wages.
Anthony, James, Conway, and Powell (collectively “Defendants”) presently move for summary judgment or, alternatively, summary adjudication.

I. Legal Standard

“A party may move for summary judgment in any action or proceeding if it is contended that the action has no merit . . . .” (Code Civ. Proc., § 437c, subd. (a)(1).) A defendant moving for summary judgment bears the initial burden of showing the action has no merit. (Code Civ. Proc., § 437c, subd. (p)(2).) An action has no merit if the defendant can show one or more of the elements of a cause of action cannot be established or there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (o)(1)-(2).) “If the defendant fails to make this initial showing, it is unnecessary to examine the plaintiff’s opposing evidence and the motion must be denied.” (Intrieri v. Superior Court (2004) 117 Cal.App.4th 72, 82.) “However, if the moving papers establish a prima facie showing that justifies a judgment in the defendant’s favor, the burden then shifts to the plaintiff to make a prima facie showing of the existence of a triable material factual issue.” (Ibid.; Code Civ. Proc., § 437c, subd. (p)(2).) “The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).)

“A motion for summary adjudication may be made [ ] as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment.” (Code Civ. Proc., § 437c, subd. (f)(2).) A motion for summary adjudication “shall be granted only if it disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).)

II. Evidentiary Matters

A. Requests for Judicial Notice

1. Defendants’ Request

In support of their motion, Defendants request judicial notice of various trial court decisions. A precondition to taking judicial notice of any matter is its relevance to a material issue under review. (People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2 (“Lockyer”).) Here, Defendants submit the decisions from other cases to try and persuade the Court to adopt their reasoning. These orders are irrelevant since the Court is not bound by the rulings of other trial court judges. (See Pereira-Goodman v. Anderson (1997) 54 Cal.App.4th 864, 872, fn. 5.) The request for judicial notice is therefore DENIED.

2. Plaintiffs’ Request

In support of their opposition, Plaintiffs request judicial notice of three “findings and orders” issued by the Labor Commission. These documents are proper subjects of judicial notice pursuant to Evidence Code section 452, subdivision (c), which authorizes courts to judicially notice official acts of any executive department. (See Argento v. Sylvania Lighting Services Corp. (D. Ariz. 2015) 127 F.Supp.3d 1060, 1063 [taking judicial notice of order from Labor Commission].) The documents are additionally relevant to issues raised herein. (Lockyer, supra, 24 Cal.4th at p. 422, fn. 2.) As such, the request is GRANTED.

B. Objections

Plaintiffs and Defendants submitted written evidentiary objections. It is unnecessary to rule on Defendants’ objections as the Court did not rely on any evidence to which they objected in ruling on this motion. (See Code Civ. Proc., § 437c, subd. (q) [the court need rule only on objections to evidence material to the disposition of the motion].)

As to Plaintiffs’ objections, it is only necessary to rule on objections numbered 21-30. It is unnecessary to rule on the remainder of Plaintiffs’ objections. To the extent this motion is directed to Plaintiff Chavez-Cortez, it is denied even if the Courts treats all of Defendants’ evidence as admissible, with the exception of the evidence discussed below. To the extent the motion is directed to Plaintiff Santos, none of the evidence to which Plaintiffs objected was considered in ruling that her claim is time-barred.

Turning to the merit of objections numbered 21-30, in support of their motion, Defendants submitted as evidence their own interrogatory responses as well as those of EGT. Plaintiffs object to these interrogatory responses on the basis they are not used against the responding party. Objections numbered 21-30 concern those responses.

Pursuant to Code of Civil Procedure section 2030.410, “[a]t the trial or any other hearing in the action . . ., the propounding party or any party other than the responding party may use any answer or part of an answer to an interrogatory only against the responding party.” Thus, a party may not rely on its own interrogatories or use interrogatories of a party other than the responding party in support of a motion for summary judgment. (Great American Ins. Companies v. Gordon Trucking, Inc. (2008) 165 Cal.App.4th 445, 450.) Accordingly, the objections numbered 21-30 are sustained.

III. Summary Judgment

The only cause of action asserted against Defendants is the first cause of action for violations of the PAGA. The PAGA was enacted to ensure employers comply with state labor laws and permits aggrieved employees, acting as private attorneys general or on their own behalf, to recover civil penalties for Labor Code violations. (Iskanian v. CLS Transp. Los Angeles, LLC (2014) 59 Cal.4th 348, 379–380 (“Iskanian”).) Plaintiffs allege Defendants violated Labor Code sections 203, 210, 226, 226.3, 226.7, 432, 510, 512, 558, 1174, 1174.5, and 1198, as well as Industrial Welfare Commission (“IWC”) Wage Order 5-2001 (“Wage Order No. 5”).

Some of these provisions concern the amount of work an employee can perform in a day (Lab. Code, §§ 510, 1198), meal breaks (Lab. Code, § 512), rest breaks (Lab. Code, § 226.7), payment of wages (Lab. Code, §§ 203), statements of wages (Lab. Code, § 226), providing a copy of an employment contract (Lab. Code, § 432), and the retention of payroll records for the Labor Commissioner’s review (Lab. Code, § 1174). The remaining provisions provide statutory penalties for violations of the above statutes. (Lab. Code, §§ 210, 226.3, 558, 1174.5; IWC Wage Order 5-2001.)

Defendants argue the claim is barred by the statute of limitations to the extent it is brought by Plaintiff Santos and advance arguments relating to individual Labor Code violations and Wage Order No. 5.

A. Statute of Limitations

Defendants contend the PAGA claim asserted by Plaintiff Santos is time-barred. They argue the cause of action accrued when Plaintiff Santos last worked for EGT in June or July 2013. This lawsuit was filed more than two years later on August 31, 2015. Instead of simply stating this action is time-barred on that basis, they inexplicably shift to arguing Plaintiff Santos failed to exhaust her administrative remedies, pointing out she should have served her notice of the PAGA claim by June or July 2014. They then conclude this claim is time-barred. While there is some interplay between a failure to exhaust administrative remedies and a claim being time-barred, they are distinct concepts.

Before bringing a claim under the PAGA, an employee must comply with certain requirements set forth in Labor Code section 2699.3. (Iskanian, supra, 59 Cal.4th at p. 380; Lab. Code, § 2699, subd. (a).) One such requirement is that the employee give written notice of the alleged Labor Code violation to the employer as well as the Labor and Workforce Development Agency describing the facts and theories regarding the violation. (Iskanian, supra, 59 Cal.4th at p. 380.) This notice must be served within the applicable limitations period, which begins to accrue when the employee is terminated. (Mazzei v. Regal Entertainment Group (C.D. Cal., Dec. 13, 2013, No. SACV 13-1284-DOC) 2013 WL 6633079, at *3 (“Mazzei”).) After the employee serves notice, the limitations period is tolled while he or she exhausts his or her administrative remedies. (Lab. Code, § 2699.3, subd. (d); Ramirez v. Ghilotti Bros. Inc. (N.D. Cal. 2013) 941 F.Supp.2d 1197, 1209.)
The PAGA claims are governed by Code of Civil Procedure section 340, subdivision (a) (“Section 340”), which imposes a one-year statute of limitations upon “[a]n action upon a statute for a penalty or forfeiture, if the action is given to an individual, or to an individual and the state, except if the statute imposing it prescribes a different limitation.” (Thomas v. Home Depot USA Inc. (N.D. Cal. 2007) 527 F.Supp.2d 1003, 1008 (“Thomas”).) That is because “a PAGA claim is, by definition, a claim for civil penalties[.]” (Ibid.)

While Defendants unnecessarily refer to the exhaustion requirement relative to the statute of limitations, it is obvious this claim is time-barred. Defendants present evidence establishing Plaintiff Santos last worked for EGT in June or July 2013 and did not serve notice and initiate this action until 2015. (Def. Sep. Stmnt., UMF Nos. 2-3.) Because Plaintiff Santos did not serve notice until more than one year after her termination, she cannot avail herself of the tolling provision set forth in the PAGA. Consequently, Plaintiff Santos’ claim is time-barred.
Plaintiff Santos’ arguments in opposition do not support a contrary conclusion. Plaintiff Santos does not dispute the underlying facts, i.e. that she stopped working in 2013 and sent notice in 2015. Instead, she argues a three-year limitations period applies. According to Plaintiff Santos, the State applies a three-year statute of limitations in pursuing claims arising under Labor Code section 558 (“Section 558”). She concludes a three-year limitations period should apply in actions brought under the PAGA where the plaintiff is acting as the State’s representative. (See Arias v. Superior Court (2009) 46 Cal.4th 969, 980 [employee suing under the PAGA does so as proxy for the State].) This argument lacks merit as numerous courts have acknowledged that although certain violations of the Labor Code are subject to a three-year limitations period, the PAGA claim predicated on a violation of those sections is nonetheless governed by Section 340. (See Thomas, supra, 527 F.Supp.2d at p. 1008 [“Despite the three-year statute of limitations that applies to some of the Labor Code violations listed in § 2699.5, a THE PAGA claim is, by definition, a claim for civil penalties.”]; Soto v. Castlerock Farming and Transport Inc. (E.D. Cal., Apr. 16, 2012, No. CIV-F-09-0701 AWI) 2012 WL 1292519, at *5.)

Plaintiff Santos also asserts a three-year limitations period applies pursuant to Labor Code section 558.1 (“Section 558.1”), which was promulgated on January 1, 2016, after this action was initiated. That statute provides that “[a]ny employer or other person acting on behalf of an employer, who violates, or causes to be violated, any provision regulating minimum wages or hours and days of work in any order of the Industrial Welfare Commission, or violates, or causes to be violated, Sections 203, 226, 226.7, 1193.6, 1194, or 2802, may be held liable as the employer for such violation.” Plaintiff Santos insists the three-year limitations period applicable to Labor Code sections 226.7 and 1194 applies here. (See Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1114 [holding section 226.7 is governed by a three-year limitations period].)

Plaintiff Santos maintains Section 558.1 can be applied retroactively and permits her to assert a non-PAGA cause of action predicated on the cited provisions of the Labor Code. Even if that were true, Plaintiff Santos’ argument is unavailing because, once again, the subject cause of action is brought under the PAGA, which has a one-year limitations period. (See Thomas, supra, 527 F.Supp.2d at p. 1008.) It is irrelevant that the PAGA claim is predicated on violations of provisions of the Labor Code subject to a longer limitations period since Plaintiff Santos does not assert a cause of action for violations of those provisions against Defendants. (See ibid.) Indeed, the second, third, and seventh causes of action are for violations of certain statutes enumerated in Section 558.1 and they are not asserted against these Defendants; they are only asserted against Defendants EGT and Sam Ramirez. Because the sole cause of action brought against Defendants is brought under the PAGA, the one-year limitations period applies.

Accordingly, Defendants established Plaintiff Santos failed to timely initiate this action, and she failed to raise a triable issue of material fact as to that point. As such, the motion for summary judgment is granted to the extent it is directed to Santos. The remainder of the discussion will thus be limited to Plaintiff Chavez-Cortez.

B. Alleged Violations of the Labor Code and Wage Order No. 5

The Court will first discuss the PAGA claim to the extent it is predicated on violations of Labor Code sections 203, 210, 226, 226.3, 226.7, 432, 510, 512, 1174, 1174.5, and 1198, as well as Wage Order No. 5, and then discuss the claim to the extent it is based on violations of Section 558.

1. Labor Code sections 203, 210, 226, 226.3, 226.7, 432, 510, 512, 1174,
1174.5, and 1198, as well as Wage Order No. 5

Defendants contend a cause of action based on violations of the subject Labor Code sections and Wage Order No. 5 can only be directed to an employer and they were not Plaintiff Chavez-Cortez’s employers.

For context, Plaintiff Chavez-Cortez alleges she was directly employed by EGT, not individually by Defendants. (See TAC, ¶¶ 1-2.) Critically, Plaintiff Chavez-Cortez does not dispute that EGT employed her. (See UMF No. 6.) As such, the main issue is whether Defendants were Plaintiff Chavez-Cortez’s employers through their positions as managers of EGT.

The first question the Court must address is whether Defendants must be Plaintiff Chavez-Cortez’s employers to be liable. Labor Code sections 203, 226, 226.3, 226.7, 510, 512, 1174 and Wage Order No. 5 all relate to the responsibilities of an employer and expressly use that term. For instance, Labor Code section 226 requires an employer to provide an itemized statement of an employee’s wages when the wages are paid. Because these provisions necessarily govern the relationship between an employer and an employee, such a relationship is a prerequisite for a wage and hour claim based thereupon. (See Futrell v. Payday California, Inc. (2010) 190 Cal.App.4th 1419, 1430-31.)

While Defendants acknowledge Labor Code sections 210, 432, and 1198 do not use the term employer, the plain language of the statutes establishes they only apply to employers. (See Martinez v. Combs (2010) 49 Cal.4th 35, 49 (“Martinez”) [finding Labor Code section 1194 only applies to employers since “no generally applicable rule of law imposes on anyone other than an employer a duty to pay wages”].)

Because Defendants must be employers to be held liable, the Court will next address whether they employed Chavez-Cortez. To that point, Defendants argue they were not employers under Reynolds v. Bement (2005) 36 Cal.4th 1075 (“Reynolds”). In Reynolds, the plaintiff alleged he was employed by two entities and several individual defendants who are shareholders or agents of those entities. (Reynolds, supra, 36 Cal.4th at p. 1082, abrogated on other grounds by Martinez v. Combs (2010) 49 Cal.4th 35.) The plaintiff initiated an action against the entities and individual defendants, claiming he was deprived of statutory overtime compensation in violation of Labor Code sections 510 and 1194 as well as IWC wage orders. (Id. at pp. 1082-83.) The individual defendants filed a demurrer, which the trial court sustained and the appellate court affirmed. (Id. at p. 1083.)

On review, the California Supreme Court had to determine the proper definition of the term employer within the meaning of those statutes. (Reynolds, supra, 36 Cal.4th at p. 1085.) The plaintiff advocated for using the IWC employer definition which encompassed an individual exercising control over the wages, hours, and working conditions of the employee, whereas the defendants insisted the IWC definition did not apply and they should not be held personally liable. (Id. at pp. 1085-86.) The California Supreme Court agreed with the defendants, holding nothing in the legislative history suggested the Legislature intended to apply the IWC definition to the Labor Code. (Id. at pp. 1086-87.) Because the IWC definition did not apply, the court looked to common law principles to resolve the dispute. (Id. at p. 1087.) Under common law, corporate agents acting within the scope of their agency are not personally liable for the corporate employer’s failure to pay its employees. (Ibid.) Thus, the court held the individual defendants were not liable.

As such, under Reynolds, Defendants may not be individually liable by virtue of being managing members of EGT. Plaintiff Chavez-Cortez’s argument in opposition does not support a contrary conclusion. She insists that Reynolds was abrogated by Martinez, and under Martinez’s test, there is a triable issue of material fact as to whether Defendants employed her. In Martinez, the California Supreme Court once again evaluated the definition of the term employer. (Martinez, supra, 49 Cal.4th at pp. 49-53.) Although the court ultimately adopted the IWC definition of employer, which the Reynolds court stated was inapplicable, it stated “[t]he opinion in Reynolds . . . properly holds that the IWC’s definition of ‘employer’ does not impose liability on individual corporate agents acting within the scope of their agency.” (Id. at p. 66.) Thus, even though the court used a different legal standard, it stated the outcome in Reynolds was correct. Here, employing the Martinez test as opposed to the Reynolds test does not alter the outcome: Defendants are not individually liable as employers because they were acting within the scope of their agency.

Consequently, Defendants established they are not employers within the meaning set forth by Reynolds and Martinez and Plaintiff Chavez-Cortez failed to raise any triable issue to that point.

2. Section 558

As stated above, under Section 558, “[a]ny employer or other person acting on behalf of an employer who violates, or causes to be violated, a section of this chapter or any provision regulating hours and days of work in any order of the Industrial Welfare Commission shall be subject to a civil penalty[.]” As evident by its plain language, Section 558 only applies to a violation of a section of the chapter in which it is located or IWC wage order. Section 558 is located in Division 2, Part 2, Chapter 1 or the Labor Code, which contains sections 500 through 558.1. Plaintiff Chavez-Cortez alleges violations of Labor Code sections 510 and 512 as well as Wage Order No. 5. Labor Code section 510 states eight hours of labor constitutes a day’s work and any work in excess of that shall be compensated at an increased rate. Wage Order No. 5, section 11 provides that an employee who works more than five hours is entitled to a meal period of at least 30 minutes. Labor Code section 512 sets forth similar requirements and adds that an employee working ten hours a day is entitled to two meal break periods.

Notably, Section 558 provides that “[a]ny employer or other person acting on behalf of an employer who violates, or causes to be violated, a section of this chapter or any provision regulating hours and days of work in any order of the Industrial Welfare Commission shall be subject to a civil penalty[.]” (Lab. Code, § 558, subd. (a), italics added.)

For the reasons stated above, Defendants are not employers for the purposes of this statute. However, they are potentially liable as individuals acting on behalf of EGT. Defendants assert three arguments as to why they are not.

First, Defendants once again rely on Reynolds in support of their argument that they cannot be liable. This is not well-taken as Reynolds is inapplicable here since it did not address Section 558. Unlike the statutes at issue there, Section 558 also applies to individuals acting on behalf of an employer. (See Lab. Code, § 558, subd. (a); see also Cordell v. PICC Lines Plus LLC (N.D. Cal., Sept. 8, 2016, No. 16-CV-01814-TEH) 2016 WL 4702654, at *8 [owner of company could be held liable if he violated a Labor Code provision specifically imposing liability on persons acting on behalf of employer].) Indeed, the Reynolds court specifically stated that the holding does not pose “an obstacle to the Labor Commissioner’s recovering wages owed California workers [because] [i]mposition of individual civil liability under the IWC employer definition is not the only means by which an employee can seek recovery against a corporate agent.” (Reynolds, supra, 36 Cal.4th at p. 1089.) The court provided several examples of how an individual defendant could be liable, expressly citing Section 558. (Ibid.) As such, the court clearly suggested Section 558 was a vehicle in which individuals could be held liable.

Defendants then insist Justice Moreno’s concurring opinion in Reynolds also supports the conclusion they are not employers within the meaning of Section 558. Justice Moreno framed the issue before the court as “whether, under certain narrowly circumscribed conditions, workers should be able to sue corporate officers and agents for unpaid overtime wages where the corporate form is being misused to defraud workers of these wages.” (Reynolds, supra, 36 Cal.4th at p. 1093, conc. opn. of Moreno, J.) Justice Moreno then provided several examples of misuse, including when the employers are acting as partnerships or sole proprietors. (Ibid.) Defendants interpret this to mean Justice Moreno does not contemplate Section 558 applying to individuals without those special circumstances.

As a threshold matter, “a concurring opinion is not the opinion of the court and is not binding.” (People v. Amadio (1971) 22 Cal.App.3d 7, 14.) In any event, Defendants’ interpretation is otherwise misguided. Justice Moreno specified that the exploitation of workers is a public concern, which the Legislature acknowledged by enacting the PAGA. (Reynolds, supra, 36 Cal.4th at p. 1094, conc. opn. of Moreno, J.) He then stated the PAGA, “in time, may provide workers with a mechanism for recovering unpaid overtime wages through private enforcement of section 558, which authorizes civil penalties for violations of the wage laws that include unpaid wages from ‘any employer or other person acting on behalf of an employer,’ a phrase conceivably broad enough to include corporate officers and agents in some cases. (§ 558, subd. (a).)” (Ibid.) He added that the PAGA was “untested” at that point. (Ibid.) Thus, even Justice Moreno recognized that Section 558 could impose individual liability on defendants. His statements only indicated Section 558 was not currently before the court and had not yet been evaluated.

As such, Reynolds does not support the conclusion that Section 558 precludes liability for Defendants. It actually supports finding Defendants may be liable on the basis they acted on behalf of EGT.

Next, Defendants assert the enactment of Section 558.1 shows the Legislature did not intend to ascribe individual liability to corporate agents by promulgating Section 558 absent exceptional circumstances. As stated above, Section 558.1, subdivision (a) provides that any employer or other person acting on behalf of that employer who violates certain Labor Code provisions may be held liable as the employer. Subdivision (b) defines the term “other person acting on behalf of an employer” as a natural person who is an owner, director, officer, or managing agent of the employer. Defendants maintain that if Section 558 applied to individuals, the two sections would be identical and Section 558.1 would be duplicative.

Defendants’ argument is not well-taken because Sections 558 and 558.1 are not identical. Section 558 provides for the imposition of civil penalties for violations of sections within the chapter in which it is located as well as IWC wage orders. (Lab. Code, § 558.) Civil penalties are inherently regulatory, not remedial, and are intended to secure obedience to statutes and regulations validly adopted under the police power.” (Home Depot U.S.A., Inc. v. Superior Court (2010) 191 Cal.App.4th 210, 225, internal quotation marks and citations omitted.) They are also punitive in character. (People v. Union Pacific R. Co. (2006) 141 Cal.App.4th 1228, 1257–58.) As such, they may be imposed “without regard to actual damage that may have been sustained.” (Id. at p. 1258.)
In contrast, Section 558.1 states any employer or person acting on behalf of an employer who violates, or causes to be violated, certain enumerated provisions may be held liable as the employer. (Lab. Code, § 558.1.) It applies to provisions outside of the chapter in which it is located and encompasses provisions authorizing a plaintiff to recover wages. (See Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1103 [Labor Code section 226.7 provides a plaintiff due wages and does not impose a penalty].) Awarding wages is compensatory in nature, as opposed to punitive, as wages consist of all amounts of labor performed by the employee as well as benefits to which an employee is entitled, like room, board, and vacation and sick pay. (Id. at pp. 1103-06.)

As the two statutes provide very different consequences for similar conduct, there is no support for the proposition that Section 558.1 is simply duplicative of Section 558. Indeed, courts have continued to construe Section 558 as authorizing actions against individual defendants even after the enactment of Section 558.1. (See Webb v. Alpha and Omega Services, Inc. (C.D. Cal., May 23, 2017, No. 5:16-CV-01609-RGK-KK) 2017 WL 3000012, at *2 [“Section 558 allows for civil penalties against any ‘person acting on behalf of an employer who violates, or causes to be violated’ a wage and hour provision of the California Labor Code.”].)

Accordingly, Defendants fail to advance any persuasive basis for finding Section 558 does not apply to individual defendants.

Last, it appears Defendants argue Plaintiff Chavez-Cortez cannot introduce any evidence demonstrating they violated or caused any violation of those provisions. Defendants’ presentation of their argument is unclear. At the outset of their memorandum of points and authorities, they identify each defendant and describe his job duties. However, in the analysis portion of the motion, Defendants do not connect the job duties to any argument or even mention them. Thus, while they say there is no evidence they violated or caused any violation, they do not actually point to any evidence at all, rendering that statement a mere legal conclusion. They similarly do not even discuss sections 510 and 512 or Wage Order No. 5. They do not address what acts may constitute a violation of those statutes and wage order. They simply state an individual may not be liable absent exceptional circumstances and state they do not exist here. In brief, their memorandum provides little analysis.

With that said, the separate statement does illuminate the issue. Therein, Defendants point to evidence establishing the following facts. Anthony is a member and manager of EGT. (Anthony Decl., ¶ 2.) As part of his duties, he assists with “back of the house management,” finance, and human resources, and is “not involved in setting staffing requirements, setting schedules for the restaurant/bar employees” or “otherwise supervising/managing/directing the employees at the facility.” (Id. at ¶¶ 3-4.) As such, he never supervised, managed, or directed Plaintiff Chavez-Cortez. (Id. at ¶¶ 11-12.) He has never interfered with an employee’s ability to take a rest break as provided by EGT’s rest break policy, told an employee he or she cannot take the duty free meal period, or instructed an employee to perform work but to not record the time on a time card. (Id. at ¶¶ 5-6, 8.) Conway, James, and Powell are similarly situated and attest to nearly identical facts; the only difference is their job duties. Conway states his job duties consist of “a little bit of everything,” including unclogging toilets, sweeping floors, counseling staff, and training security. (Conway Decl., ¶ 3.) James describes his job duties as handling the finances of the corporation, including processing payroll. (James Decl., ¶ 3.) Powell identifies his duties as being responsible for logos, menus, recipes, training, hiring, and high-level discipline. (Powell, Decl. ¶ 3.)

This evidence establishes Defendants did not violate or cause any violation of the subject statutes. An employer has a duty to “apprise employees of their entitlement” to a break and thereafter may “maintain absolute neutrality as to the exercise of that right.” (Mendoza v. Nordstrom, Inc. (2017) 2 Cal.5th 1074, 1090–91 (“Mendoza”).) To “cause” means to produce an effect, motivate, or induce the actor to act. (Ibid.) In an employer-employee relationship, “[o]ne can envision a host of ways in which an employer can, short of requiring or forcing employees to go without rest, still implicitly make clear that doing so will redound to their benefit, or spare them sanction, and thereby motivate or induce employees to work every day.” (Ibid.) As such, the term “cause” is not limited “to instances of express requirements or compulsions” and encompasses instances of “implied pressure” to forego the statutorily-mandated rest. (Ibid.) Still, to “cause” “require[s] some affirmative role in motivating or inducing action, not simply the passive failure to prevent action.” (Ibid.) Here, the evidence reflects Defendants apprised their employees of their right to take breaks and took no action at all to prevent them from doing so. The evidence also shows Defendants took no actions to withhold overtime payment as they did not even know employees were not being given their required breaks. Defendants therefore establish they did not monitor meal or rest breaks or otherwise know employees, including Plaintiff Chavez-Cortez, were not taking the required breaks.

Accordingly, the burden shifts to Plaintiff Chavez-Cortez to establish a triable issue of material fact. To that point, Plaintiff Chavez-Cortez presents evidence establishing the following facts.
All Defendants, as managing members, are involved in the operation of the business. (Plts. Sep. Stmnt., Plaintiffs’ Additional Facts (“PAF”) No. 146.) Anthony managed the back of the house, i.e. the kitchen, to make sure the operations were running smoothly. (Id. at PAF No. 147.) Although Anthony had no training on wage issues outside of using Google, he and other members created the employee handbook outlining their policies. (Id. at PAF Nos. 149-150.)

James is in charge of finances, human resources, the kitchen, and calculating payroll. (PAF Nos. 160-161.) Being in charge of payroll and finances includes ensuring EGT’s compensation policies comply with California law and reviewing the timekeeping records. (Id. at PAF Nos. 166-167.) When James assumes an employee has not clocked out for lunch, he subtracts that time from the employee’s recorded work hours. (Id. at PAF No. 169.) He similarly does so when he assumes an employee has taken a meal break but failed to punch out. (Ibid.) When James changes the payroll records, he does not ask the individual employee about whether he or she took a break, but rather asks the manager. (Id. at PAF No. 172.) James subtracted time from Plaintiff Chavez-Cortez’s time card without asking her if she actually took a break. (Id. at PAF No. 171.)

Powell was in charge of implementing operating budgets and putting together the employee handbook. (PAF Nos. 205, 208.) Powell was the onsite manager when EGT first opened. (Id. at No. 226.) Powell collaborated with James in creating meal break policies. (Id. at PAF No. 212.) He did not know employees are entitled to second meal breaks if they work for over ten hours. (Id. at PAF No. 213.)

Conway coordinated with Powell to ensure the employee handbook complied with California law and, as such, reviewed it before it was finalized. (PAF Nos. 200-201.) Conway believed the employee handbook complied with California law but has no recollection of ever taking any steps to ensure it was. (Id. at PAF No. 203.)

At EGT, kitchen employees took their meal breaks in sequence, one at a time. (PAF No. 181.) The kitchen manager did not know the meal breaks needed to be provided within the first five hours of work, and thus the lunch period would often start during the fifth hour of work. (Id. at PAF No. 182.) Further, there was no policy to provide second meal breaks for individuals working for more than ten hours. (Id. at PAF No. 184.) In fact, James, who is in charge of setting forth such regulations, did not even know a worker was entitled to more than one break if he or she worked more than ten hours. (Id. at PAF No. 185.)

Berzain Gomez (“Gomez”) was a cashier and then a manager at EGT until 2014 when he was fired. (PAF Nos. 223, 225.) Although he was supposed to be at EGT during work hours, EGT received numerous complaints that he left work to see his girlfriend. (Id. at PAF Nos. 220-221.) Although Gomez was in charge of ensuring the kitchen staff took meal breaks, he would let the staff figure out when to take breaks among themselves. (Id. at PAF No. 231.) Gomez admitted sometimes employees got zero rest breaks during their shifts and he did not inform the kitchen staff they were able to take them because he assumed they knew EGT’s policies. (Id. at PAF Nos. 232-233, 242.) Gomez attests Plaintiff Chavez-Cortez only took meal breaks half of the time because the kitchen was busy and she had to finish her work. (Id. at PAF No. 243.) Defendants were aware there was insufficient staff, which meant employees were not taking all their breaks. (Id. at PAF No. 253.) Gomez also was never asked if any employees took a break and was unaware James deducted time from payroll for unrecorded meal breaks. (Id. at PAF No. 240.)

Another employee, Imelda Mendoza (“Mendoza”) complained to Gomez about the amount of work being performed and that they had to miss breaks. (Kramer Decl., Exh. U, ¶ 32.) Sometimes she would clock out for lunch, and he told her to get back to work. (Ibid.) Mendoza complained to Powell about the lack of breaks and meals, to which he responded it was too busy at the restaurant. (Ibid.) He said the employees could take a break if it was not too busy, but if it were, they had to “go with the flow.” (Ibid.) At the monthly meetings, Mendoza heard Plaintiff Chavez-Cortez complain about the working conditions, specifically that she and other employees did not get their breaks. (PAF No. 259.) Powell heard these complaints and offered no suggestion as to how to improve the working conditions. (Ibid.) He said it was her fault if she did not take any breaks. (Ibid.) Mendoza never saw Plaintiff Chavez-Cortez take uninterrupted meal breaks before the fifth hour or uninterrupted rest breaks. (Ibid.)

As persuasively argued by Plaintiff Chavez-Cortez, these facts raise triable issues as to whether Defendants violated or caused any violation of Section 558. Plaintiff Chavez-Cortez shows there is a triable issue as to whether she was given a fair opportunity to take her meal breaks. She submits evidence reflecting she often did not take her meal breaks and, if she did, it was after the fifth hour of work. She also presents evidence showing she worked shifts longer than ten hours without being provided a second meal break. There is further evidence she did not feel as though she was permitted a reasonable opportunity to take a thirty minute meal break as she was encouraged to keep working throughout lunch and was often interrupted. Last, the evidence reflects there is a triable issue as to whether Defendants caused such potential violations. Plaintiff Chavez-Cortez’s evidence reflects Defendants authored the employee handbook, which did not include a policy authorizing employees to take their meal before the fifth hour of work or second meal breaks. In fact, Defendants did not even know they had to provide such breaks to comply with the law. Further, the evidence suggests Defendants did not properly train their managers about ensuring employees could take their meal breaks and were not prevented from doing so by over work.

This evidence, in totality, raises a triable issue as to whether Defendants caused the meal break violations at issue and the subsequent failure to pay for overtime for missed meal breaks. The evidence suggests Defendants may have effected or induced such violations by failing to develop lawful policies and equip a manager to inform the employees of their entitlement to take such breaks. While there is little evidence of “express requirements,” that is not necessary. (See Mendoza, supra, 2 Cal.5th at pp. 1090–91.)

In reply, Defendants insist they have always had policies complying with California law. However, the evidence they introduce does not establish as much. Defendants rely on deposition testimony from Powell and interrogatory responses. The deposition testimony only identifies their policy regarding rest breaks, not meal breaks. As to the interrogatory responses, as discussed above, they are admissible because they are being used against a party other than the responding party. (See Code Civ. Proc., § 2030.410.) As such, Defendants do not refute Plaintiff Chavez-Cortez’s position that they had a non-compliant employee handbook and failed to properly instruct employees and managers of the entitlement to meal breaks.

Accordingly, Plaintiff Chavez-Cortez raises a triable issue of material fact as to whether Defendants caused any violations of Section 558. As such, summary judgment cannot be granted on the basis Defendants did not violate or cause any violation of Section 558.

C. Conclusion

In light of the above, summary judgment is GRANTED to the extent the motion is directed to Plaintiff Santos and DENIED to the extent the motion is directed to Plaintiff Chavez-Cortez.

IV. Summary Adjudication

Defendants alternatively move for summary adjudication of the following issues: (1) Plaintiff Santos’ first cause of action is time-barred; (2) the first cause of action against Anthony fails because he did not violate or cause to be violated any of the alleged Labor Code sections or IWC regulations; (3) the first cause of action against Conway fails because he did not violate or cause to be violated any of the alleged Labor Code sections or IWC regulations; (4) the first cause of action against James fails because he did not violate or cause to be violated any of the alleged Labor Code sections or IWC regulations; and (5) the first cause of action against Powell fails because he did not violate or cause to be violated any of the alleged Labor Code sections or IWC regulations.

As an initial matter, Defendants’ identification of the issues to be summarily adjudicated reflects a misunderstanding of summary adjudication. A motion for summary adjudication may be directed only to a cause of action, an affirmative defense, a claim for punitive damages, or an issue of duty. (Code Civ. Proc., § 437c, subd. (f)(1).) Thus, the only “issue” that may be independently adjudicated is one of duty. But Defendants do not seek adjudication of any issue of duty here. The Court could disregard the motion on this basis alone.

In any event, there is otherwise no merit to their motion. It is unnecessary to address the first issue because the motion for summary judgment was granted to the extent it was directed to Plaintiff Santos. As to the remainder of the identified issues to be adjudicated, Defendants do not differentiate between their arguments advanced in support of summary judgment and adjudication. Indeed, it appears as though all arguments advanced in support of summary judgment equally apply here. As such, for the reasons stated above relative to summary judgment, there is a triable issue of fact as to whether Defendants violated or caused any violations of Section 558. Consequently, their motion for summary adjudication is DENIED.

After compliance with Rule 3.1312, Defendant shall submit a proposed judgment as to Plaintiff Santos’ claims against them, only. The judgment shall clearly identify by complete name each of the Defendants who is granted judgment.

The Court shall prepare the Order.