-PLA Catalina Ricaldai v. US Investigations Services, LLC et al, No. 2:2010cv07388 - Document 79 (C.D. Cal. 2012)

Court Description: ORDER DENYING IN PART AND GRANTING IN PART DEFENDANTS MOTION FOR PARTIAL SUMMARY JUDGMENT 48 by Judge Dean D. Pregerson. (lc) Modified on 5/25/2012 (lc).

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-PLA Catalina Ricaldai v. US Investigations Services, LLC et al Doc. 79 1 2 O 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 CATALINA RICALDAI, on behalf of herself and all others similarly situated, 13 Plaintiff, 14 15 16 17 v. US INVESTIGATIONS SERVICES, LLC, a Delaware limited liability company, Defendant. ___________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 10-07388 DDP (PLAx) ORDER DENYING IN PART AND GRANTING IN PART DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT [Docket No. 48] 18 19 Presently before the court is Defendant’s Motion for Partial 20 Summary Judgment (“Motion”). 21 papers and heard oral argument, the court denies the Motion in 22 part, grants the Motion in part, and adopts the following Order. 23 I. 24 Having reviewed the parties’ moving BACKGROUND From July 2003 to November 2008, Plaintiff Catalina Ricaldai 25 (“Ricaldai”) worked as a field investigator for Defendant US 26 Investigations Services, LLC (“USIS”). 27 conduct background investigations of individuals seeking employment 28 with or already employed by the federal government. USIS field investigators During Dockets.Justia.com 1 Ricaldai’s employment at USIS, field investigators typically worked 2 remotely out of their homes and with a company car, gathering 3 records, conducting interviews, and preparing written reports. 4 (Pl.’s Statement of Genuine Issues in Opp’n to Mot. (“SS”), Nos. 1- 5 2, 6-9.) 6 hours each week and eight hours per day unless they had approved 7 overtime.” 8 investigation within the time allotted to the file.” 9 USIS therefore “trained investigators to build their own daily work “USIS expected California-based investigators to work 40 USIS also “expected investigators to close their (Mot. at 5.) 10 schedule based on the work they had to complete for their 11 investigations, not based on a particular schedule.” 12 (SS No. 13.) Under California state law, if an employee works five or more 13 hours in a day, the employee has the right to a 30-minute meal 14 period, free of any job duties and starting no later than the fifth 15 hour of work.1 16 Rptr. 3d 315, 343-44 (Cal. 2012) (discussing Labor Code section 17 512). 18 employees must be free to attend to any personal business they may 19 choose during the 30-minute period. 20 See Brinker Rest. Corp. v. Super. Ct., 139 Cal. The meal break is not limited to the right to eat; rather, See id. at 340. During Ricaldai’s employment, the USIS employee handbook 21 section on timekeeping included the statement: “Do not start work 22 early, finish work late, work during a meal break or perform any 23 other extra or overtime work unless you are authorized to do so.” 24 (Decl. of Lara K. Strauss in Supp. of Mot. (“Strauss Decl.”), Ex. E 25 at 41.) USIS also posted in its district offices the required 26 27 28 1 If an employee works no more than six hours in a day, the meal period may be waived by mutual consent of the employer and employee. See Brinker, 139 Cal. Rptr. 3d at 344. 2 1 Industrial Welfare Commission (“IWC”) wage order regarding meal 2 periods. 3 however, otherwise train or advise employees as to their meal 4 period rights. 5 that her trainers and supervisors, along with particular company 6 policies, unlawfully pressured her to work during meal periods. 7 USIS also failed to record meal periods, in violation of the 8 applicable IWC wage order. 9 claims that she therefore never took the 30-minute, duty-free meal 10 11 See 8 Cal. Code Regs. tit. 8, § 11040(22). (SS at 45-53.) USIS did not, To the contrary, Ricaldai argues See id. § 11040(7)(A)(3). Ricaldai period provided by California law. Specifically, Ricaldai alleges that during a 2003 field 12 training for “update investigations,” her trainer told her “to pack 13 her lunch because they would not have time to stop and eat lunch.” 14 (SS Nos. 56-58; Decl. of Christine C. Choi in Supp. of Pl.’s Opp’n 15 to Mot. (“Choi Decl.”), Ex. 1 at 66, 75, 79.) 16 training period, Ricaldai and her trainer did in fact “eat lunch 17 while they were looking at the paperwork and reviewing the 18 interviews they had done.” 19 instructing Ricaldai on how to fill out her time cards, the trainer 20 told her that: “it was not okay for [Ricaldai] to do something else 21 during the course of the day for personal reasons, such as go to a 22 doctor’s appointment,” and that Ricaldai “had to work eight hours a 23 day and request time off from the district manager if she needed to 24 incorporate any personal activities.” 25 this field training and a one-week training in Pennsylvania, 26 Ricaldai was also “told that she had to ‘zone’ her work,” meaning 27 that “if she was in a particular geographic area, she had to make 28 sure to fill her day in the zone with scheduled interviews, visits (SS No. 59.) 3 Throughout the Further, while (SS Nos. 60-61.) During 1 to the court, or walks around the neighborhood to try and get more 2 interviews.” 3 (SS Nos. 62, 65-66.) Likewise, at a 2004 training and during quarterly “‘check 4 rides’ with the district manager or team lead” throughout her 5 employment, Ricaldai and the trainer or supervisor again had 6 “working lunch[es].” 7 days that Ricaldai had a check ride, she and her supervisor “would 8 sit down, grab a sandwich, go through a checklist, and talk about 9 different things that they liked or did not like during the 10 11 (SS Nos. 68-72; Choi Decl., Ex. 1 at 80.) interviews that [Ricaldai] had conducted.” On (SS No. 72.) More broadly, Ricaldai asserts that “it was not possible for 12 [her] to take 30 minutes of off-duty time during the day because it 13 was the culture of the job to get as much testimony as possible.” 14 (SS No. 73.) 15 a waste and a failure to correctly zone the geographic area.” 16 Ricaldai also “had to accommodate the schedules and availability of 17 witnesses.” 18 “[a]lways took a working lunch wherein she would review paperwork 19 and type reports on her laptop,” and “[n]ever did any type of 20 personal activity during the course of her day without previously 21 requesting time off.” 22 According to Ricaldai, “[a]ny time off was considered (SS Nos. 74-75.) Ricaldai therefore allegedly (SS Nos. 76-78.) Based on these alleged meal period violations - and overtime 23 issues not relevant to this Motion - Ricaldai filed a putative 24 class action suit against USIS in California state court, on August 25 26, 2010. 26 2010, pursuant to the Class Action Fairness Act of 2005, 28 U.S.C. 27 § 1332(d). 28 (“Complaint”) on June 9, 2011. USIS removed the action to this court on October 4, Ricaldai filed a Second Amended Class Action Complaint In her Complaint, Ricaldai alleges 4 1 six causes of action: 1) failure to provide meal periods, in 2 violation of California Labor Code (“Labor Code”) sections 226.7 3 and 512; 2) failure to properly calculate and pay overtime, in 4 violation of Labor Code section 1194(a); 3) failure to timely pay 5 wages, in violation of Labor Code section 203; 4) failure to 6 maintain and provide accurate itemized statements, in violation of 7 Labor Code section 226; 5) enforcement of the Private Attorneys 8 General Act (“PAGA”), Labor Code § 2698; and 6) unlawful business 9 practices, in violation of California Business and Professions Code 10 section 17200. 11 predicated on her meal period and overtime claims. 12 Ricaldai’s third through sixth causes of action are USIS filed this Motion for Partial Summary Judgment on 13 September 9, 2011. 14 a matter of law on Ricaldai’s meal period claim, because Ricaldai 15 indisputably had the independence and flexibility to set her own 16 schedule and take the required breaks. 17 that it is entitled to summary judgment on claims three through 18 six, to the extent they are based on Ricaldai’s meal period claim. 19 Last, USIS contends that Ricaldai’s PAGA and Labor Code section 226 20 claims are time-barred, and that the section 226 claim also fails 21 because Ricaldai does not allege certain required elements. 22 II. 23 USIS argues that it is entitled to judgment as USIS therefore also argues LEGAL STANDARD Summary judgment is appropriate where “the movant shows that 24 there is no genuine dispute as to any material fact and the movant 25 is entitled to a judgment as a matter of law.” 26 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). 27 In deciding a motion for summary judgment, the evidence is viewed 28 in the light most favorable to the non-moving party, and all 5 Fed. R. Civ. P. 1 justifiable inferences are drawn in its favor. 2 Lobby, Inc., 477 U.S. 242, 255 (1986). Anderson v. Liberty 3 A genuine issue exists if “the evidence is such that a 4 reasonable jury could return a verdict for the nonmoving party,” 5 and material facts are those “that might affect the outcome of the 6 suit under the governing law.” 7 fact exists “[w]here the record taken as a whole could not lead a 8 rational trier of fact to find for the non-moving party.” 9 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 10 11 Id. at 248. No genuine issue of 587 (1986). It is not enough for a party opposing summary judgment to 12 “rest on mere allegations or denials of his pleadings.” 13 477 U.S. at 259. 14 pleadings to designate specific facts showing that there is a 15 genuine issue for trial. 16 existence of a scintilla of evidence” in support of the nonmoving 17 party’s claim is insufficient to defeat summary judgment. 18 Anderson, 477 U.S. at 252. 19 weighing of the evidence, and the drawing of legitimate inferences 20 from the facts are jury functions, not those of a judge,” when he 21 or she is ruling on a motion for summary judgment. 22 III. DISCUSSION 23 24 25 A. Anderson, Instead, the nonmoving party must go beyond the Celotex, 477 U.S. at 324. The “mere But “[c]redibility determinations, the Id. at 255. Meal Period Claim 1. California Meal Period Law after Brinker The California Supreme Court recently clarified the law 26 regarding meal periods, in Brinker Restaurant Corp. v. Superior 27 Court, 139 Cal. Rptr. 3d 315 (Cal. 2012). 28 concluded that “an employer must relieve the employee of all duty 6 Relevant here, the court 1 for the designated period, but need not ensure that the employee 2 does no work.” 3 “worker must be free to attend to any personal business he or she 4 may choose during the unpaid meal period.” 5 Cal. Dep’t of Indus. Relations, Div. of Labor Standards 6 Enforcement, Opinion Letter No. 1991.06.03, at 1). 7 the meal period requirement is only “satisfied if the employee (1) 8 has at least 30 minutes uninterrupted, (2) is free to leave the 9 premises, and (3) is relieved of all duty for the entire period.” 10 Id. at 338. The court further explained that a Id. at 340 (quoting Accordingly, Id. 11 The court also emphasized that, although employers are not 12 required to ensure that employees do not voluntarily choose to work 13 during a meal period, “an employer may not undermine a formal 14 policy of providing meal breaks by pressuring employees to perform 15 their duties in ways that omit breaks.” 16 Cicairos v. Summit Logistics, Inc., 133 Cal. App. 4th 949, 962–63 17 (2005) (finding potential meal period violations where “defendant’s 18 management pressured drivers to make more than one daily trip, 19 making drivers feel that they should not stop for lunch”); Jaimez 20 v. DAIOHS USA, Inc., 181 Cal. App. 4th 1286, 1304–05 (2010) 21 (finding potential violations based on evidence that scheduling 22 policy “made it extremely difficult” for employees to both timely 23 complete deliveries and take all required breaks); Dilts v. Penske 24 Logistics, LLC, 267 F.R.D. 625, 638 (S.D. Cal. 2010) (finding 25 potential violations given evidence of informal anti-meal-period 26 policies “enforced through ‘ridicule’ or ‘reprimand’”)). Id. at 343 (citing 27 In other words, the “wage orders and governing statute do not 28 countenance an employer’s exerting coercion against the taking of, 7 1 creating incentives to forego, or otherwise encouraging the 2 skipping of legally protected breaks.” 3 at 343. 4 [its meal period] obligation if it relieves its employees of all 5 duty, relinquishes control over their activities and permits them a 6 reasonable opportunity to take an uninterrupted 30–minute break, 7 and does not impede or discourage them from doing so.” 8 9 Brinker, 133 Cal. App. 4th Thus, as the court summarized: “The employer satisfies Id.2 Finally, in a concurring opinion joined by Justice Liu, Justice Werdegar emphasized that relevant IWC wage orders also 10 require employers to record meal periods. 11 J., concurring) (citing Cal. Code Regs. tit. 8, § 11050); see also 12 Cal. Code Regs. tit. 8, § 11040(7)(A)(3) (same). 13 therefore concluded that the burden is on the employer to show that 14 it relieved an employee of all duty for a meal period, if the 15 employer fails to record the meal period as required. 16 Justices explained in detail: 17 18 19 20 21 22 Id. at 353 (Werdegar, The Justices As the If an employer’s records show no meal period for a given shift over five hours, a rebuttable presumption arises that the employee was not relieved of duty and no meal period was provided. An employer’s assertion that it did relieve the employee of duty, but the employee waived the opportunity to have a work-free break, is not an element that a plaintiff must disprove as part of the plaintiff’s case-in-chief. Rather, as the Court of Appeal properly recognized, the assertion is an affirmative defense, and thus the burden is on the employer, as the party asserting waiver, to plead and prove it. 23 24 25 26 27 28 2 The court also held that if an employee does in fact voluntarily decide to work during a meal period - free of employer pressure or coercion - the employer may still have to pay for that time worked. See id. at 342 n.19. Specifically, although the employer would not be liable for the “premium pay” penalty for a meal period violation, the employer would be liable for “regular compensation” for the time worked, if it “knew or reasonably should have known that the worker was working through the authorized meal period.” Id. (internal quotation marks omitted). 8 1 . . . . 2 As the Division of Labor Standards Enforcement (DLSE) has explained, even under the less restrictive wage order applicable to agricultural employees, if “a meal period is not taken by the employee, the burden is on the employer to show that the agricultural employee had been advised of his or her legal right to take a meal period and has knowingly and voluntarily decided not to take the meal period. Again, we emphasize, the burden is on the employer.” (Dept. Industrial Relations, DLSE Opinion Letter No. 2003.08.13 (Aug. 13, 2003) p. 2 [interpreting IWC wage order No. 14 (Cal. Code Regs., tit. 8, § 11140)].) To place the burden elsewhere would offer an employer an incentive to avoid its recording duty and a potential windfall from the failure to record meal periods. Both the United States Supreme Court and the courts of this state have rejected such an approach. 3 4 5 6 7 8 9 10 Brinker, 133 Cal. App. 4th at 353 & n.1 (Werdegar, J., concurring) 11 (citations omitted). 12 2. Application of Brinker 13 According to USIS, Ricaldai’s meal period claim fails as a 14 matter of law, because it is undisputed that: 1) Ricaldai had 15 complete control over her schedule, given her remote work and the 16 availability of overtime; and 2) USIS adequately informed Ricaldai 17 of her meal period rights, by posting the relevant IWC wage order 18 and including a statement prohibiting work during meal periods in 19 its employee handbook. USIS therefore contends that, even if 20 Ricaldai never took the required meal breaks, this decision was 21 entirely voluntary. Ricaldai argues, to the contrary, that there 22 is a genuine dispute as to this meal period issue, because USIS: 1) 23 failed to record any meal periods, as required; 2) never informed 24 employees of essential aspects of their meal period rights; and 3) 25 instead, had affirmative policies and trainings that pressured 26 Ricaldai not to take duty-free breaks. Although the question is a 27 close one, and USIS makes valid points that certainly could 28 9 1 convince a trier of fact that USIS complied with its meal period 2 obligations, the court finds that Ricaldai has raised a genuine 3 issue of material fact. 4 find that USIS policies and practices unlawfully discouraged 5 Ricaldai from taking the required duty-free meal periods. Specifically, a reasonable juror might 6 As an initial matter, the court notes its agreement with 7 Justices Werdegar and Liu that it is the employer’s burden to rebut 8 a presumption that meal periods were not adequately provided, where 9 the employer fails to record any meal periods. Otherwise, 10 employers would have an incentive to ignore their recording duty, 11 leaving employees the difficult task of proving that the employer 12 either failed to advise them of their meal period rights, or 13 unlawfully pressured them to waive those rights. 14 Cal. App. 4th at 353 & n.1 (Werdegar, J., concurring) (citing 15 Cicairos, 133 Cal. App. 4th at 961 (“[W]here the employer has 16 failed to keep records required by statute, the consequences for 17 such failure should fall on the employer, not the employee.” 18 (internal quotation marks omitted))). 19 no dispute that USIS failed to record any meal periods. 20 See Brinker, 133 Here, as mentioned, there is However, even if the burden of proof were on Ricaldai, the 21 court would still find a genuine issue of material fact. 22 discussed, Ricaldai has provided evidence that during initial all- 23 day trainings, her trainer expressly informed her that there would 24 not be time for meal breaks. 25 took working lunches, where Ricaldai was not relieved of all duties 26 as required by California law. 27 period violations fall outside the relevant statute of limitations. 28 They still support an inference, however, that USIS implicitly As Ricaldai and her trainer therefore As USIS notes, these apparent meal 10 1 trained Ricaldai to not take duty-free meal periods. 2 be said for Ricaldai’s claim that trainers and supervisors had her 3 take working lunches during subsequent trainings and check rides. 4 As USIS argues, it is unclear whether any of these later trainings 5 or check rides lasted five hours or more; thus, the working lunches 6 did not necessarily violate the meal period requirement. 7 if there was no direct violation on these occasions, USIS’ ongoing 8 practice of having Ricaldai take working lunches still supports an 9 inference of employer pressure to work through meal periods. 10 The same can But even This inference is further supported by evidence that USIS 11 prohibited employees from taking any personal time during the 12 workday, without employer permission. 13 initial trainer allegedly instructed her that “it was not okay . . 14 . to do something else during the course of the day for personal 15 reasons,” and that she had to request time off “if she needed to 16 incorporate any personal activities” in her eight-hour day. 17 Although ambiguous, a reasonable factfinder might conclude that 18 these instructions applied even to personal errands lasting thirty 19 minutes or less. 20 law, because meals breaks are expressly usable for personal 21 matters. 22 thirty-minute period,” where the worker “must be free to attend to 23 any personal business he or she may choose.” 24 App. 4th at 340 (internal quotation marks omitted). 25 the meal break is essentially personal time, where the employee is 26 free to eat or to do anything else for half an hour. 27 all personal activities during the workday is therefore the 28 equivalent of eliminating meal periods. As mentioned, Ricaldai’s If so, the instructions would clearly violate the As Brinker emphasized, employees are entitled to a “full 11 Brinker, 133 Cal. Accordingly, Prohibiting 1 Last, evidence that USIS instructed employees to fill each 2 work day in a given geographic area with relevant job duties - and 3 considered any time off “a waste and a failure” - provides some 4 support for the conclusion that USIS unlawfully discouraged duty- 5 free meal periods. 6 In sum, Ricaldai offers evidence that she was implicitly 7 trained to take working lunches, expressly told that personal 8 errands were prohibited without prior authorization, specifically 9 directed to fill her entire day in each geographic area with job 10 duties, and correspondingly discouraged from taking any time off. 11 Viewing this evidence in the light most favorable to Ricaldai, a 12 rational trier of fact could conclude that USIS pressured her to 13 take working lunches instead of duty-free meal periods, in 14 violation of California meal period law under Brinker. 15 Contrary to USIS’ argument, it does not change the summary 16 judgment analysis that USIS exerted no direct control over Ricaldai 17 during her work day and allowed for overtime, and that Ricaldai 18 therefore admitted at deposition that she technically could have 19 scheduled her work day to incorporate a duty-free meal period while 20 still completing her tasks. 21 evidence that, viewed in the light most favorable to Ricaldai, USIS 22 nonetheless unlawfully discouraged Ricaldai from scheduling a meal 23 period during her workday. As discussed, there is sufficient 24 Nor is USIS entitled to summary judgment simply because 25 Ricaldai admitted at deposition that, if she had read the employee 26 handbook section on timekeeping, she would have known not to work 27 during meal periods. 28 that the aforementioned USIS policies and practices pressured her Throughout the deposition, Ricaldai insisted 12 1 to instead always work through meal breaks. 2 unclear whether Ricaldai’s admission meant that, if she had read 3 the relevant handbook statement, it would have overridden the 4 countervailing employer pressure. 5 is particularly plausible given that the employee handbook 6 contained only a single statement as to meal periods - not to work 7 during them - and did not inform employees of their other essential 8 meal period rights - i.e. to take a 30-minute meal break every 9 workday of five hours or more, and to do so prior to the fifth hour It is therefore Indeed, the opposite conclusion 10 of work. 11 any USIS pressure undermined its limited formal policy as to meal 12 periods, is for the trier of fact to resolve. In any event, this ambiguity, and the question of whether Derivative Claims 13 B. 14 Because the court finds that USIS is not entitled to summary 15 judgment on Ricaldai’s meal period claim, none of her other claims 16 fail simply because they are derivative of this claim. 17 C. 1. 18 19 PAGA & Labor Code Section 226 Claims Statute of Limitations Ricaldai concedes that her PAGA claim is barred by 20 California’s one-year statute of limitations for statutory claims 21 seeking a penalty or forfeiture. 22 340(a). 23 Ricaldai’s fifth cause of action. 24 See Cal. Civ. Proc. Code § USIS is therefore entitled to summary judgment on Ricaldai argues that her Labor Code section 226 (“Section 25 226”) claim is not similarly time-barred, however, because she is 26 also seeking actual damages under the statute. 27 (providing a three-year statute of limitations for all other 28 statutory claims). See id. § 338(a) Ricaldai cites to a district court decision in 13 1 this Circuit that thoroughly addresses this legal issue and 2 directly supports her position. 3 and Co., No. 08cv821, 2008 WL 2899825, at *4-5 (S.D. Cal. July 25, 4 2008). 5 no need to repeat the analysis here. 6 contentions, Ricaldai does adequately seek and allege actual 7 damages in her Complaint,3 and does not concede the absence of such 8 damages in her deposition, as discussed more below. 9 10 See Singer v. Becton, Dickinson The court agrees with the well-reasoned decision and finds 2. Also, contrary to USIS’ Injury & Intent Requirements Finally, USIS argues that it is entitled to summary judgment 11 on Ricaldai’s Section 226 claim, because Ricaldai has failed to 12 show that she suffered an “injury” from any violation of the 13 statute, or that any such violation was “knowing and intentional.” 14 Cal. Labor Code § 226(e). 15 The court disagrees. USIS is correct that “an employee may not recover for 16 violations of Section 226(a) unless he or she demonstrates an 17 injury arising from the missing information.” 18 Corp., 192 Cal. App. 4th 1136, 1142-43 (2011) (stating also that 19 “‘deprivation of that information,’ standing alone is not 20 cognizable injury”). 21 McKenzie v. Fed. Express Corp.: Price v. Starbucks However, as the court helpfully summarized in 22 23 24 25 26 27 28 3 (See Compl. ¶ 51 (“As a result of Defendants’ violation of California Labor Code Section 226(a), Plaintiff and Class Members suffered injuries, including employee confusion over whether they received all wages owed to them, difficulty and expense involved in reconstructing pay records, and forcing employees to make mathematical computations to analyze whether the wages paid in fact properly compensated them.”); id. ¶ 52 (“Pursuant to California Labor Code Section 226(e), Plaintiff and Class Members are entitled to recover . . . all actual damages . . . .”); id. at 24 ¶ 5(b) (seeking, among other relief, “[a] monetary award as damages . . . pursuant to Labor Code Section 226(e)”).) 14 1 [Price] went on to explain that “mathematical injury that requires computations to analyze whether the wages paid in fact compensated [the employee] for all hours worked” is sufficient to establish injury. [192 Cal. App. 4th at 1143] (internal quotation omitted). Specifically, the court noted that this can be proven if the injury arises “from inaccurate or incomplete wage statements,” which require the plaintiff to engage “in discovery and mathematical computations to reconstruct time records to determine if they were correctly paid.” Id. (citations omitted). Likewise, the California Court of Appeals in Jaimez v. DAIOHS USA, Inc., noted that “[w]hile there must be some injury in order to recover damages [under § 226(e)], a very modest showing will suffice.” 181 Cal. App. 4th 1286, 105 Cal. Rptr. 3d 443, 460 (2010). The court further explained that “‘this lawsuit, and the difficulty and expense [the plaintiff has] encountered in attempting to reconstruct time and pay records,’ may well be ‘further evidence of the injury’ he has suffered.” Id. (quoting Wang v. Chinese Daily News, Inc., 435 F. Supp. 2d 1042, 1050 (C.D. Cal. 2006)). 2 3 4 5 6 7 8 9 10 11 12 275 F.R.D. 290, 294 (C.D. Cal. 2011); see also Elliot v. 13 Spherion Pac. Work, LLC, 572 F. Supp. 2d 1169, 1181 (C.D. Cal. 14 2008) (cited approvingly in Price and citing cases finding 15 injuries such as “the possibility of not being paid overtime” 16 and “employee confusion over whether they received all wages 17 owed them”). 18 Applying this standard, the court finds that there is a 19 genuine issue of material fact as to the injury requirement. 20 Contrary to USIS’ characterization, Ricaldai has provided 21 evidence of more than mere technical violations of Section 22 226. 23 overtime rate on her wage statements, but was in fact paying 24 her an incorrect and reduced overtime rate: 25 wage statements, I received a ‘Spanish Incentive’ as part of 26 my wages. 27 ‘Spanish Incentive’ income was included when calculating my 28 overtime pay.” According to Ricaldai, USIS not only failed to list her “As shown on my Based on my computations, I do not believe that the (Decl. of Catalina Ricaldai in Supp. of Pl.’s 15 1 Opp’n to Mot. ¶¶ 3-4.) 2 “had to perform mathematical computations to determine whether 3 her paychecks were accurate.” 4 (describing the alleged injury in more detail).)4 5 trier of fact could believe Ricaldai, and conclude that she 6 suffered an actual injury from having to make these 7 calculations, and from not knowing that she was being 8 underpaid. 9 inconsistent with her declaration. Ricaldai claims that she therefore (Id. ¶ 3; see also supra note 3 A rational Nor is Ricaldai’s deposition testimony clearly Although Ricaldai at one 10 point responded affirmatively that she was not confused by her 11 wage statements and could not recall inaccuracies, there is no 12 indication that she was referring to all aspects of the 13 statements - in particular, the missing and erroneous overtime 14 rates. (See Strauss Decl., Ex. C at 182-86.) 15 With regard to Section 226(e)’s “knowing and intentional” 16 requirement, USIS cites to decisions granting summary judgment 17 to defendants because the court found a “good faith dispute” 18 as to whether the employees were exempt from Section 226’s 19 coverage. 20 C-11-1379, 2012 WL 1564733, at *17 (N.D. Cal. May 2, 2012). 21 Here, USIS does not contend that Ricaldai is exempt from 22 statutory coverage. 23 “cannot possibly demonstrate that USIS knowingly violated wage 24 statement obligations since the reason USIS did not include 25 the meal period premium on [her] wage statements is because it See, e.g., Hurst v. Buczek Enters., LLC, No. Instead, it maintains that Ricaldai 26 4 27 28 As discussed, USIS also failed to record meal periods. If Ricaldai succeeds on her meal period claim, USIS further violated Section 226 by failing to include premium pay for each missed meal period. 16 1 did not believe (and still does not believe) that it owes 2 [her] for any alleged meal period violations.” 3 The court disagrees. 4 similar circumstances, the factual question of whether an 5 employer had a good faith belief that it was not violating 6 Section 226 is generally for the factfinder to resolve at 7 trial. 8 08-05396, 2010 WL 728205, at *9 (N.D. Cal. Mar. 1, 2010) (“UPS 9 cannot carry its burden on summary judgment simply by (Mot. at 21.) As numerous courts have recognized under See, e.g., Lopez v. United Parcel Serv., Inc., No. C 10 asserting in a conclusory fashion in an argumentative pleading 11 that it acted under a good faith belief plaintiff was exempt. 12 The presence or absence of a good faith belief on UPS’s part 13 is a factual question that must be resolved at trial.”); Rieve 14 v. Coventry Health Care, Inc., No. SACV 11-1032, 2012 WL 15 1441341, at *19 (C.D. Cal. Apr. 25, 2012); Perez v. 16 Safety-Kleen Sys., Inc., 253 F.R.D. 508, 517 (N.D. Cal. 2008); 17 Cornn v. United Parcel Serv., No. C03-2001, 2006 WL 449138, at 18 *3 (N.D. Cal. Feb. 22, 2006). 19 Here, even if the court were convinced that any wage 20 statement meal period omissions were made in good faith, it is 21 still entirely unclear whether USIS acted in good faith with 22 regard to the alleged overtime errors. 23 fact could therefore conclude, as Ricaldai alleges, that USIS 24 “knowingly and intentionally failed to provide” Ricaldai with 25 accurate and itemized wage statements, “and did so in order to 26 conceal [its] liability from [Ricaldai].” 27 IV. CONCLUSION 28 17 A reasonable trier of (Compl. ¶ 53.) 1 In sum, and for all the foregoing reasons, the court 2 DENIES USIS’ Motion for Partial Summary Judgment as to 3 Ricaldai’s first, third, fourth, and sixth causes of action, 4 for meal period violations, failure to timely pay wages, 5 Section 226 violations, and unfair business practices. 6 court, however, GRANTS USIS’ Motion for Partial Summary 7 Judgment as to Ricaldai’s fifth cause of action, for 8 enforcement of the Private Attorneys General Act. The 9 10 IT IS SO ORDERED. 11 12 13 14 Dated: May 25, 2012 DEAN D. PREGERSON United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18

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