Holak v. Kmart Corporation et al, No. 1:2012cv00304 - Document 187 (E.D. Cal. 2015)

Court Description: ORDER Denying Plaintiff's 186 Motion For Certification of Order For Interlocutory Appeal, signed by District Judge Anthony W. Ishii on 8/11/2015. (Plaintiff's motion for certification of the Courts May 19, 2015, order for interlocutory appeal is DENIED.) (Gaumnitz, R)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT FOR THE 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 11 AMIE HOLAK, individually and on behalf of other members of the general public similarly situated, 12 13 14 15 Plaintiff, v. K MART CORPORATION, a Michigan corporation; and DOES 1 through 10, inclusive, 1:12-cv-00304-AWI-MJS ORDER DENYING PLAINTIFF’S MOTION FOR CERTIFICATION OF ORDER FOR INTERLOCUTORY APPEAL (Doc. #186) 16 Defendants. __________________________________/ 17 18 19 20 21 22 23 24 25 26 27 I. INTRODUCTION On July 10, 2015, Amie Holak (“Plaintiff”) filed a motion for certification for interlocutory appeal of the Court’s May 19, 2015 order. (Doc. 186). For the reasons discussed below, the Court finds that Plaintiff has not met the requirements for an interlocutory appeal and therefore Plaintiff’s motion will be denied. II. BACKGROUND Plaintiff claims Defendant violated Labor Code Sections 510, 1198, 1194, 1197, 1197.1, 201, 202, 226(a), 1198, 2698 et seq., as well as California Code of Regulations, Title 8, Section 11070(14) and California Business and Professions Code Section 17200. On November 17, 2014, Defendant filed a motion for partial summary judgment on Plaintiff’s sixth cause of action 28 1 1 for civil penalties under the Private Attorneys General Act (“PAGA”) and fourth cause of action 2 regarding penalties under California Labor Code Section 226(e). (Doc. 150). On May 19, 2015, 3 the Court granted Defendant’s motion. (Doc. 180). The Court’s order concluded, among other 4 things, that (1) Plaintiff is “constrained to her involuntary wait time theory in bringing a claim 5 for PAGA penalties” because it was the only remaining theory properly exhausted in her notice 6 letter, and (2) that Plaintiff cannot recover under Section 226(e) because Plaintiff never suffered 7 an injury. (Doc. 180). Plaintiff now asks the Court to certify its May 19, 2015 order for an 8 immediate interlocutory appeal pursuant to 28 U.S.C. § 1292(b). 9 10 III. LEGAL STANDARD A district judge may certify an order for an interlocutory appeal if such an order involves, (1) 11 a controlling question of law, (2) to which there is substantial ground for difference of opinion, 12 and (3) an immediate appeal from the order may materially advance the ultimate termination of 13 the litigation. 28 U.S.C. § 1292(b). A question is “controlling” if resolution of the “issue on 14 appeal could materially affect the outcome of litigation in the district court.” In re Cement 15 Antitrust Litig. (MDL No. 296), 673 F.2d 1020, 1026 (9th Cir. 1981). The controlling question of 16 law requirement is “intend[ed] to capture those ‘exceptional situations in which allowing an 17 interlocutory appeal would avoid protracted and expensive litigation.’ ” Dalie v. Pulte Home 18 Corp., 636 F. Supp. 2d 1025, 1028 (E.D. Cal. 2009)(quoting U.S. Rubber Co. v. Wright, 359 19 F.2d 784, 785 (9th Cir. 1966)). “To determine if a ‘substantial ground for difference of opinion’ 20 exists under § 1292(b), courts must examine to what extent the controlling law is unclear.” 21 Couch v. Telescope Inc., 611 F.3d 629, 633 (9th Cir. 2010). The requirement of substantial 22 ground for difference of opinion is not satisfied simply because, settled law might be applied 23 differently (Id.), a party strongly disagrees with the court’s decision (Hansen v. Schubert, 459 F. 24 Supp. 2d 973, 1000 (E.D. Cal. 2006)), or there is a “dearth of case” law contradicting the court’s 25 decision (Davis Moreno Const., Inc. v. Frontier Steel Bldg. Corp., 2011 WL 347127, at *2 (E.D. 26 Cal. Feb. 2, 2011)). Third, the ultimate termination of litigation is materially advanced if “trial is 27 28 2 1 avoided or the time to litigate a matter is substantially shortened.” Conte v. Jakks Pac., Inc., 2012 2 WL 3069971, at *3 (E.D. Cal. July 27, 2012). 3 Section 1292(b) should be applied “sparingly and only in exceptional cases.” In re Cement 4 Antitrust Litig. (MDL No. 296), 673 F.2d at 1027. An interlocutory appeal is not “intended 5 merely to provide review of difficult rulings in hard cases.” U. S. Rubber Co. v. Wright, 359 F.2d 6 784, 785 (9th Cir. 1966). Section 1292(b) must be construed narrowly since it is a departure from 7 the general rule that only final judgments are appealable. Zone Sports Ctr., LLC v. Rodriguez, 8 2013 WL 3766749, at *4 (E.D. Cal. July 16, 2013). Generally, a district court should not certify 9 an order for an interlocutory appeal where it would prolong rather than advance resolution of the 10 litigation. Porter v. Mabus, 2014 WL 669778, at *2 (E.D. Cal. Feb. 20, 2014). The burden to 11 show the presence of exceptional circumstances justifying an interlocutory appeal is on the party 12 seeking certification. Hansen v. Schubert, 459 F. Supp. 2d 973, 1000 (E.D. Cal. 2006). 13 14 IV. DISCUSSION Plaintiff seeks certification of two issues, (1) whether the Court may limit a PAGA plaintiff 15 to the specific facts and theories alleged in the PAGA notice letter and the degree of detail 16 required for the letter, and (2) whether Plaintiff herself must have suffered an actual injury to 17 recover under 226(e). Although Plaintiff states she seeks certification of only two questions, the 18 Court believes that the first question is appropriately divided into two separate questions. 19 Plaintiff’s first question addresses two different issues, (1) whether the Court may limit a PAGA 20 plaintiff to the specific theories alleged in the PAGA notice, and (2) the degree of detail required 21 in a PAGA notice letter to exhaust any one specific theory. The Court will address each question 22 separately. 23 1. First Issue – Whether a plaintiff is limited to the theories alleged in the PAGA notice 24 Plaintiff argues the question regarding whether a PAGA plaintiff can be limited to the precise 25 facts and theories enumerated in the notice letter is an issue of disagreement among district 26 courts. (Doc. 186 at 14). Plaintiff acknowledges that the court in Bradescu limited the plaintiff to 27 the theories contained in the notice letter, but argues that other courts have taken a “more 28 3 1 permissive approach.” (Doc. 186 at 14-15)(compare Bradescu v. Hillstone Rest. Grp., Inc., 2014 2 WL 5312546, at *11 (C.D. Cal. Sept. 18, 2014) order confirmed, 2014 WL 5312574 (C.D. Cal. 3 Oct. 10, 2014)(holding that a plaintiff is “limited to specifically those theories (and those Labor 4 Code sections) mentioned” in the PAGA notice); with Ovieda v. Sodexo Operations, LLC, 2013 5 WL 3887873, at *3 (C.D. Cal. July 3, 2013)(holding that a notice must contain at least “some 6 ‘facts and theories’ specific to the plaintiff’s principal claims” to constitute adequate notice)). 7 Substantial Ground for Difference of Opinion 8 Most of the cases cited by Plaintiff address the issue of what constitutes a substantively 9 sufficient notice letter rather than the question of whether a plaintiff is limited to the theories 10 exhausted in their PAGA notice. Cardenas is the only case cited by Plaintiff which comes close 11 to supporting the argument that a plaintiff is not limited to the theories alleged in their PAGA 12 notice. 13 In Cardenas the plaintiffs’ notice letter informed the defendant that “the action was being 14 ‘brought on behalf of thirty-seven truck drivers.’ ” Cardenas v. McLane FoodServices, Inc., 796 15 F. Supp. 2d 1246, 1259 (C.D. Cal. 2011). The letter also stated the defendant employed plaintiffs 16 out of its Southern California distribution center as truck drivers. Id. The defendant argued the 17 letter limited the action to the southern California area and the thirty-seven plaintiffs. Id. The 18 letter did not, according to the defendant, support a PAGA claim on behalf of employees from a 19 distribution center located in northern California. Id. The court determined that the plaintiffs 20 were not bound to the facts and theories exactly as laid out in the letter and that PAGA does not 21 require “inclusion of every potential fact or every future theory.” Id. at 1260. The court held that 22 as long as the letter “reasonably details facts and theories sufficient to comply with PAGA’s 23 administrative procedures…the addition of future employees will not suggest a failure to 24 exhaust.” Id. at 1261. 25 In Cardenas the plaintiffs did not seek to add a new theory of liability. Instead, the plaintiffs 26 sought to expand the membership of the representative action to include employees from a 27 distribution center in northern California who were impacted by the defendant’s same policy in 28 4 1 the same manner. The plaintiffs’ claims and theories of liability were based on the facts and 2 theories explained in the notice letter. Here, Plaintiff’s letter articulated the theory that she and 3 other employees “were ‘required to wait off-the-clock while their supervisors finished up his or 4 her duties, including closing procedures, and physically let them out of the store.’ ” (Doc. 180, p. 5 6). Plaintiff is not attempting to expand the membership of the representative action – based on 6 the same theory – like the plaintiffs in Cardenas; instead she seeks to introduce a new theory of 7 liability that “Defendant failed to pay overtime at a rate of 1.5 times the base hourly rate.” Id. 8 Plaintiff has identified no authority for that proposition. Accordingly, Plaintiff has not 9 demonstrated that there is a substantial ground for difference of opinion on whether a plaintiff is 10 limited to the theories stated in their notice letter. 11 In fact, this case is nearly on all fours with Bradescu. In Bradescu the court noted that the 12 plaintiff’s notice letter was substantively sufficient because it contained facts and theories and 13 specific provisions of the Labor Code which had allegedly been violated. Bradescu v. Hillstone 14 Rest. Grp., Inc., 2014 WL 5312546, at *11 (C.D. Cal. Sept. 18, 2014) order confirmed, 2014 WL 15 5312574 (C.D. Cal. Oct. 10, 2014). Although the court determined the plaintiff’s letter was 16 sufficient, it concluded that the plaintiff’s PAGA claim was “limited to specifically those 17 theories (and those Labor Code sections) mentioned in her PAGA notice.” Id. Since Plaintiff has 18 not demonstrated that there is a substantial difference of opinion on whether a plaintiff is limited 19 to the theories stated in the notice letter, Plaintiff’s request for certification of the order on this 20 issue will be denied. 21 2. Second Issue – Level of detail required for PAGA notice letter 22 Plaintiff argues there is substantial ground for difference of opinion because district courts 23 have disagreed on what degree of specificity is required in a notice letter under PAGA. (Doc. 24 186 at 14-15). Plaintiff claims this is a controlling question of law because it would 25 “substantially affect a large number of cases.” (Doc. 186 at 11). According to Plaintiff, resolution 26 of this issue on appeal would have a “material effect on the outcome of the litigation.” (Doc. 186 27 at 12). 28 5 1 Substantial Ground for Difference in Opinion 2 The Court’s May 19, 2015 order granted summary judgment for Defendant on Plaintiff’s 3 PAGA penalty claims. (Doc. 180). The Court concluded that Plaintiff had not complied with the 4 exhaustion requirements regarding her theory that Defendant violated Section 226(a) by 5 “ ‘incorrectly stat[ing] the overtime rate as an amount markedly less than 1.5 times Plaintiff’s 6 regular rate.’ ” (Doc. 180 at 5). Plaintiff’s PAGA letter stated: 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Violation of California Labor Code § 226(a) California Labor Code § 226(a) requires employers to make, keep, and provide true, accurate, and complete employment records. [Defendant] did not provide Ms. Holak and other aggrieved employees with proper itemized wage statements. The wage statements they received from [Defendant] were in violation of California Labor Code section 226(a). The violations include, without limitation, the failure to include the total hours worked by Ms. Holak and other aggrieved employees and the failure to list all applicable hourly rates. (Doc. 155-3 at 5). The Court held that the quoted section of the letter contained no facts or theories of liability and would not constitute sufficient notice under Section 2699.3 by itself. (Doc. 180 at 6). But, read as a whole the letter was substantively sufficient because it explained the theory that Plaintiff and other aggrieved employees were required to wait off the clock. Id. The Court determined that because only Plaintiff’s off the clock wait time theory had been adequately exhausted, she was limited to that theory of liability in bringing a claim for PAGA penalties. Id. Section 2699.3(a)(1) requires an aggrieved employee to send written notice to the LWDA and the employer detailing the specific Labor Code provisions which have allegedly been violated and the facts and theories to support the alleged violations. Cal. Lab. Code § 2699.3 (West 2015). In Archila, the Ninth Circuit found the plaintiff’s notice letter did not comply with the requirements of Section 2699.3 because it did not contain facts and theories to support the 25 plaintiff’s allegations. Archila v. KFC U.S. Properties, Inc., 420 F. App'x 667, 669 (9th Cir. 26 2011). Soto interpreted Archila as requiring an “exceedingly detailed level of specificity for 27 28 6 1 Section 2699.3(a)(1) to be satisfied.” Soto v. Castlerock Farming & Transp. Inc., 2012 WL 2 1292519, at *8 (E.D. Cal. Apr. 16, 2012)(citing Archila, 420 F. App’x at 669). 3 Relying on Soto, Alcantar applied the higher standard to determine if exhaustion is satisfied. 4 In Alcantar the court explained that the plaintiff’s letter was insufficient because, like the letter 5 in Archila, it only “vaguely list[ed] ways in which the California Labor Code provisions were 6 violated and fail[ed] to allege specific facts.” Alcantar v. Hobart Serv., 2013 WL 228501, at *4 7 (C.D. Cal. Jan. 22, 2013). The letter stated: 8 9 10 11 12 13 14 15 16 Plaintiff contends that defendant (1) failed to pay wages for all time worked; (2) failed to pay overtime wages for overtime worked; (3) failed to include extra compensation required by California Labor Code section 1194 in the regular rate of pay when computing overtime compensation, thereby failing to pay plaintiff and those who earned additional compensation for all overtime wages due; (4) failed to provide accurate wage statements to employees as required by California Labor Code Section 226; (5) failed to provide reimbursement for work related expenses as required by Labor code § 2802; and (6) failed to provide off duty meal periods and to pay compensation for work without off-duty meal periods to its California employees in violation of California Labor Code sections 226.7 and 512, and the applicable Industrial Welfare Commission orders. Said conduct, in addition to the foregoing, violated each Labor Code section as set forth in California Labor Code section 2699.5. 17 Id. at *2. The court did not use the term “exceedingly detailed level of specificity,” but citing 18 Soto the court explained that Soto “demonstrates that simply claiming violations of Labor Code 19 provisions without specifying the factual context underlying those violations is insufficient for 20 satisfying the statutory prerequisites of PAGA.” Id. at *3. 21 Other courts in this Circuit have disagreed with Soto’s reading of Archila, requiring instead 22 that the notice contain “at least some alleged facts and theories.” Ovieda v. Sodexo Operations, 23 LLC, 2013 WL 3887873, at *3 (C.D. Cal. July 3, 2013); Gonzalez v. Millard Mall Servs., Inc., 24 2012 WL 3629056, at *6 (S.D. Cal. Aug. 21, 2012); Moua v. Int'l Bus. Machines Corp., 2012 25 WL 370570, at *5 (N.D. Cal. Jan. 31, 2012); see York v. Starbucks Corp., 2012 WL 10890355, 26 at *4 (C.D. Cal. Nov. 1, 2012); Gonzalez v. Millard Mall Servs., Inc., 2012 WL 3629056, at *3 27 (S.D. Cal. Aug. 21, 2012). Amey, Ovieda, and Moua explicitly applied the lower standard 28 7 1 requiring “some facts and theories” to satisfy the exhaustion requirement. The Amey letter 2 stated1: 3 Violation of California Labor Code § 226(a) 4 California Labor Code section 226(a) requires employers to make, keep and provide true, accurate, and complete employment records. CINEMARK did not provide Ms. Brown and other aggrieved employees with properly itemized wage statements. The wage statements they received from CINEMARK were in violation of California Labor Code section 226(a). The violations include, without limitation, failing to state the total hours they worked as a result of working off-the-clock and not recording or paying for those hours. 5 6 7 8 9 The court noted that the Central District’s opinion in York appeared to support the plaintiffs’ 10 argument that “it is unreasonable to expect [plaintiffs] to include every theory and detail of their 11 allegation under section 226 prior to discovery.” Amey v. Cinemark USA Inc., 2015 WL 12 2251504, at *14-15 (N.D. Cal. May 13, 2015)(citing York v. Starbucks Corp., 2012 WL 13 10890355, at *4 (C.D. Cal. Nov. 1, 2012)). But, the court did not find York to be persuasive. Id. 14 It explained that the sole factual allegation contained in the notice, failure to state the total hours 15 worked as a result of working off the clock, was unrelated to the plaintiffs’ new claim that the 16 overtime rate was listed the same as employees’ hourly rate. Id. at 15. As such, the court 17 determined that the one factual allegation did not adequately give the defendant notice of 18 plaintiffs’ facts and theories regarding the new alleged violation of Section 226. Id. After 19 analyzing a number of cases, the court held that it is clear that “plaintiffs are required to provide 20 at least some information regarding the theories relating to the alleged violations.” Id. at 14. In Ovieda the court held that “to constitute adequate notice under § 2699.3(a), the notice 21 22 must allege at least some ‘facts and theories’ specific to the plaintiff’s principal claims.” Ovieda 23 v. Sodexo Operations, LLC, 2013 WL 3887873, at *3 (C.D. Cal. July 3, 2013). The court found 24 the plaintiff’s letter was insufficient because it did not describe the defendant’s allegedly 25 unlawful policies or practices. Id. at *4. Instead, the letter merely “recit[ed] the statutory 26 1 The letter can be found as Docket item 83-17 in Amey v. Cinemark USA Inc., (Northern District of California 3:13- 27 cv-05669-WHO), publicly available through the Northern District’s CM-ECF system. The Court takes judicial 28 notice of that document. 8 1 requirements defendants allegedly violated.” Id. at *3. The term “principal claims” appears to 2 refer to the underlying labor code provisions.2 The court explains that the notice does not contain 3 “facts specific to [the plaintiff’s] principal meal and rest break claim and unpaid wages claim.” 4 Id. at *4. The court determined the holding from Cardenas, that a letter does not have to include 5 every potential fact or every future theory, is not inconsistent with its holding that a letter must 6 “include some facts specific to the plaintiff’s principal claims.” Id. Ovieda appears to require 7 some facts and theories specific to each alleged labor code violation. The Moua court determined the plaintiff’s letter was sufficient because it named the specific 8 9 employees and identified “at least some facts and theories.” Moua v. Int'l Bus. Machines Corp., 10 2012 WL 370570, at *5 (N.D. Cal. Jan. 31, 2012).3 It appears that Moua applied the same 11 standard as the Amey court which required plaintiffs to provide “at least some information 12 regarding the theories relating to the alleged violations.” See Amey, 2015 WL 2251504 at *14. 13 York did not articulate the standard necessary for exhaustion, but it appears the court used a 14 standard similar to, if not the same as, the “some facts and theories” standard. York v. Starbucks 15 Corp., 2012 WL 10890355, at *4. In York the plaintiffs’ letter stated4: 16 Violation of California Labor Code § 226(a) 17 California Labor Code § 226(a) requires employers to make, keep and provide true, accurate, and complete wage statements showing nine itemized pieces of information. Starbucks Corporation did not provide Ms. York and other aggrieved employees with proper itemized wage statements. The wage statements they received from Starbucks Corporation were in violation of California Labor Code § 226(a). The violations include, without limitation, the 18 19 20 21 22 23 24 25 26 27 28 2 The court does not define “principal claims.” The court describes the issue in the case as “whether [the plaintiff’s] notice included sufficient ‘facts and theories to support the alleged violation[s].’ ” Id. at *2. The court then notes that for a letter to contain “sufficient facts” it must contain some facts and theories specific to the principal claims. Id. at *3. This seems to indicate the term “principal claims” refers to the underlying labor code provisions. 3 The format of the Moua notice letter is unusual. The first section of the letter lists the ways in which the defendant violated the Labor Code. The second section then lists the Labor Code provisions that were violated. The letter can be found as Docket item 66 in Moua v. Int’l Bus. Machines Corp., (Northern District of California 5:10-cv-01070 EJD), publicly available through the Northern District’s CM-ECF system. The Court takes judicial notice of that document. 4 The letter can be found as Docket item 170-3 in York v. Starbucks Corp., (Central District of California 2:08-cv07919-GAF-PJW), publicly available through the Central District’s CM-ECF system. The Court takes judicial notice of that document. 9 1 failure to include total hours worked, and the failure to include the applicable hourly rates. 2 The defendants argued the notice was not sufficient because it did not meet the “exceedingly 3 detailed level of specificity” standard. York v. Starbucks Corp., 2012 WL 10890355, at *3 (C.D. 4 Cal. Nov. 1, 2012). The defendants found fault with the fact that the letter “alleged the 5 ‘applicable hourly rates’ were absent from the wage statements instead of specifically alleging 6 that the ‘overtime rate’ was missing.” Id. at 4. The court noted that Archila and Soto involved 7 more complex claims and that the plaintiff’s letter was more detailed than the letters involved in 8 those cases. Id. The court concluded - without explicitly articulating what standard it applied – 9 that the letter was sufficient and that no case law required the level of detail suggested by the 10 defendants. Id. at *4. 11 The court in Gonzalez also did not explicitly articulate what standard it applied, but it appears 12 the court relied on a standard similar to the “some facts and theories” standard of Moua. The 13 plaintiffs’ letter in Gonzalez stated: 14 15 16 17 18 19 Labor Code § 212(a) forbids employers in California from issuing payment of wages in an instrument that is not (1) negotiable, (2) payable in cash, (3) on demand, (4) without discount, (5) at an established place of business in California, (6) the name and address of which appears on the instrument, and (7) which place of business has been prepared, by the deposit of funds, understanding to pay the money called for by the instrument. In violation of these statutory requirements, the Defendants issued pay checks out of a bank in Illinois and the address of the bank does not appear on the checks. 20 Gonzalez v. Millard Mall Servs., Inc., 2012 WL 3629056, at *3 (S.D. Cal. Aug. 21, 2012). The 21 defendants argued the letter did not provide notice of the facts and theories supporting the 22 allegation that there was no California address where the checks could be cashed. Id. at *5. The 23 court stated that it disagreed with the Soto court’s interpretation that Archila requires a PAGA 24 notice to contain an exceedingly detailed level of specificity. Id. The court explained that the 25 notice “states one specific labor code violation as well as facts to support that violation.” Id. at 26 *6. The court found this constituted “sufficient facts” since the plaintiffs’ theory that there was 27 no California address where the checks could be cashed could be understood from the phrase 28 10 1 “Defendants issued pay checks out of a bank in Illinois and the address of the bank does not 2 appear on the checks.” Id. 3 The notice letters in York and Amey are very similar to Plaintiff’s letter and both apply a 4 lower standard for exhaustion than articulated in Soto. However, York and Amey come to 5 opposite outcomes regarding the adequacy of the largely identical notice letters. York determined 6 that the plaintiff’s letter was sufficient to support the theory that the overtime rate was missing 7 from the wage statements despite the fact that the notice letter only alleged the applicable hourly 8 rates were missing. Amey, on the other hand, held that the plaintiff’s allegation in the notice 9 letter, that defendant failed to state the total hours worked as a result of working off the clock, 10 was not sufficient to support the plaintiff’s new theory that the overtime rate was listed 11 incorrectly. Amey supports this Court’s conclusion that the notice letter regarding Defendant’s 12 alleged Section 226(a) violation is not sufficient to support the theory that Defendant violated 13 Section 226(a) by incorrectly stating the overtime rate as less than 1.5 times Plaintiff’s regular 14 rate. But, York supports Plaintiff’s argument that the portion of the letter explaining the alleged 15 Section 226(a) violation is sufficient to support her PAGA claim. Other courts seem to side with 16 Amey’s and this Court’s conclusion that if a plaintiff gives no notice of a particular theory in 17 their letter, they cannot later rely on that theory of liability. 18 The Court agrees that there is disagreement among federal district courts regarding what 19 standard should be used when determining whether a PAGA notice letter contains sufficient facts 20 and theories. This Court and Alcantar relied on Soto to determine whether the notice letter was 21 sufficient. Amey, Ovieda, and Moua explicitly applied a standard requiring “some facts” or 22 “some information” regarding the plaintiff’s facts and theories. Gonzalez and York appear to 23 apply the same standard – although it was not explicitly articulated. Although these cases applied 24 different standards, all, except York, seem to agree that if a plaintiff provides no notice of a 25 specific theory, that theory is not exhausted under Section 2699.3. Plaintiff’s letter gave no 26 notice of the theory that the wage statements were in violation of Section 226(a) because they 27 incorrectly stated the overtime rate as less than 1.5 times Plaintiff’s regular rate. Even under the 28 11 1 lower standard, providing no notice of a theory is not sufficient to exhaust. The only case 2 supporting Plaintiff’s position is York. But, since a “dearth of cases” –a single outlier in this 3 instance – contradicting the Court’s decision does not constitute a substantial ground for 4 difference of opinion, the Court will not certify an interlocutory appeal on this issue. See Davis 5 Moreno Const., Inc. v. Frontier Steel Bldg. Corp., 2011 WL 347127, at *2 (E.D. Cal. Feb. 2, 6 2011). 7 3. Third Issue – Injury requirement under Section 226(e) Plaintiff argues the Court’s order requiring Plaintiff to have suffered an injury herself during 8 9 her employment “imposed a limitation unsupported in any case law including the pre-2013 10 Amendment case law on which the Court relied.” (Doc. 186 at 9). Further, Plaintiff claims there 11 are competing lines of authority as to whether Section 226(e) requires “actual injury” or whether 12 an injury can be found under an objective standard. (Doc. 186 at 17-20). 13 Substantial Grounds for Difference of Opinion 14 In the May 19, 2015 order the Court concluded that whether information is promptly and 15 easily determinable is an objective standard, but that an employee must have actually viewed the 16 wage statements. (Doc. 180 at 10-11). The Court found that the 2013 amendment “clarified the 17 injury requirement of Section 226(e)” rather than eliminate any actual injury requirement 5. Id. 18 Plaintiff argues the 2013 Amendment “makes clear that inquiry is not based on what Plaintiff 19 actually did or tried to do but what a ‘reasonable person’ could or could not promptly and easily 20 determine from the wage statements alone.” (Doc. 186 at 18). According to Plaintiff, the 21 language of the 2013 Amendment stating “an employee is deemed to suffer injury” creates a 22 reasonable person standard under which the injury requirement can be met regardless of whether 23 Plaintiff actually reviewed her wage statements. Id. 24 25 26 27 28 5 Plaintiff claims “this Court’s conclusion that the amendment changed, rather than clarified, the injury requirement is contrary to the weight of authority.” (Doc 186 at 17). Contrary to Plaintiff’s claim, in the May 19, 2015 order the Court specifically explained, “the 2013 statutory amendment clarified the injury requirement.” (Doc 180 at 11)(emphasis added). The Court continued that “even assuming that … the 2013 Amendment provides a new objective standard….[constituting] a substantive change, the 2013 Amendment does not apply to Plaintiff’s claim.” Id. 12 1 Novoa explained that “the 2013 Amendment is best understood as clarifying that the Section 2 226 injury requirement hinges on whether an employee can ‘promptly and easily determine’ 3 from the wage statement, standing alone, the information needed to know whether he or she is 4 being underpaid.” Novoa v. Charter Commc'ns, 2015 WL 1879631, at *14 (E.D. Cal. Apr. 22, 5 2015). The court determined the plaintiff had suffered an injury because he had to “engage in 6 mathematical computations to reconstruct time records and determine if he was correctly paid.” 7 Id. at 15. 8 Boyd interpreted the 2013 Amendment as clarifying that the injury requirement of Section 9 226(e) is “presumptively satisfied if the employer fails to provide accurate and complete 10 information as required by” Section 226(e)(2)(B). Boyd v. Bank of Am. Corp., 2015 WL 11 3650207, at *33 (C.D. Cal. May 6, 2015). The court found the plaintiffs had satisfied the injury 12 requirement because the plaintiffs could not “readily determine the total hours worked and 13 applicable hourly pay, which made it difficult for them to determine the amount of overtime 14 worked.” Id. Boyd explains that the injury requirement is “presumptively satisfied if the 15 employer fails to provide accurate and complete information.” Here, Plaintiff presumptively 16 satisfied the injury requirement because Defendant failed to provide accurate information on the 17 wage statements. But, nothing indicates that this presumption cannot be rebutted. In her 18 deposition testimony Plaintiff testified that she never viewed her wage statements; rebutting the 19 presumption that she had suffered an injury. (Doc. at 11-12). 20 In Ridgeway the plaintiffs argued they did suffer an injury because the defendant failed to 21 include the required information on their wage statements and as a result they could not 22 “promptly and easily determine from the wage statements alone the total hours worked, piece 23 rates paid, or applicable hourly rates.” Ridgeway v. Wal-Mart Stores, Inc., 2014 WL 2600326, at 24 *8 (N.D. Cal. June 10, 2014). The court granted summary judgment for the defendant because 25 the plaintiffs had not stated in their declarations or depositions that they actually engaged in any 26 mathematical calculation. Id. at *9. The court concluded “that plaintiffs have failed to identify 27 28 13 1 evidence of injury sufficient to raise an issue of material fact as to whether [plaintiffs] suffered a 2 compensable injury under Section 226(e).” Id. In Green the defendant admitted that the plaintiff’s wage statements did not include the 3 4 required information about the applicable hourly rates. Green v. Lawrence Serv. Co., 2013 WL 5 3907506, at *13 (C.D. Cal. July 23, 2013). But, the defendant argued the plaintiff had not 6 suffered an injury and could not recover under Section 226(e). Id. During her deposition, the 7 plaintiff testified that it was not difficult to find the information missing from the wage 8 statements online. Id. at *14. The court found the plaintiff had “never experienced confusion, 9 based on a wage statement, over whether she received all wages she was owed; she also never 10 experienced difficulty in reconstructing pay records, and did not have to perform complex 11 mathematical computations to analyze whether she was properly compensated.” Id. Therefore, 12 although the wage statement did not comply with Section 226(a), the plaintiff could not recover 13 because she had not suffered an injury. Id. Here, Plaintiff never viewed her wage statements, and 14 so, like the plaintiff in Green, she never experienced confusion based on her wage statements. 15 Nguyen held that to recover under Section 226(e) a plaintiff must demonstrate they suffered 16 some injury due to the employer’s violation of Section 226(a). Nguyen v. Baxter Healthcare 17 Corp., 2011 WL 6018284, at *8 (C.D. Cal. Nov. 28, 2011). The court determined that, “in light 18 of the fact [plaintiff] did not check her wage statements electronically,” there was “insufficient 19 evidence to raise a triable issue as to whether [the plaintiff]” suffered an injury. Id. at *9. 20 Courts are in agreement that the injury requirement under Section 226(e) is minimal, but that 21 a plaintiff must still have suffered some injury.6 Since courts are in agreement that a plaintiff 22 must have suffered an injury in order to recover under Section 226(e), there is no substantial 23 24 25 26 27 28 6 Plaintiff notes the Price decision was cited by the legislature as one of the decisions making clarification of the injury standard necessary. (Doc. 186 at 18). Price held, “the injury requirement in Section 226, subdivision (e), cannot be satisfied simply because one of the nine itemized requirements in section 226, subdivision (a) is missing from a wage statement.” Price v. Starbucks Corp., 192 Cal. App. 4th 1136, 1142 (2011). The 2013 Amendment seems to indicate that Price was wrong in determining the injury requirement cannot be satisfied simply because one of the itemized requirements of Section 226(a) is missing. The Amendment clarifies that an employee suffers an injury if an employer does not provide a wage statement or a Section 226(a) requirement is missing and an employee cannot promptly and easily determine that he or she has been underpaid. 14 1 ground for difference of opinion. Therefore, Plaintiff’s request for certification of this question 2 for interlocutory appeal will be denied. 3 4. Materially Advance Termination of Litigation 4 In addition, interlocutory appeal on any question presented would not materially advance 5 termination of this litigation. An appeal cannot be said to materially advance the ultimate 6 termination of litigation, “when litigation will be conducted in substantially the same manner 7 regardless” of the appellate court’s decision. Gitson v. Trader Joe's Co., 63 F. Supp. 3d 1114, 8 1117 (N.D. Cal. 2014)(quoting White v. Nix, 43 F.3d 374, 378-79(8th Cir. 1994)). In Medlock, 9 the plaintiffs filed a motion for certification of an order for interlocutory appeal. Medlock v. Taco 10 Bell Corp., 2014 WL 6389382, at *2 (E.D. Cal. Nov. 14, 2014). The plaintiffs sought to appeal 11 the court’s denial of class certification with respect to plaintiffs’ PAGA claims for alleged wage 12 and hour violations. Id. In denying the motion the court reasoned, 13 14 15 16 17 18 19 20 Id. 21 An appeal would not materially advance the ultimate termination of the litigation. Reversal on appeal would result in the claim being revived and, if anything would protract litigation. There would be little time savings, as the same result would occur if the parties waited for final judgment in this action and appealed the issue at that point…While the Court acknowledges that it may be more convenient in some ways to hold a single discovery period and single trial on Plaintiff’s claims, including the dismissed PAGA claims which Plaintiffs wish to appeal, the time savings associated with a consolidated single trial is not sufficient to meet the “materially advanced” standard, particularly when weighed against the possibility that interlocutory appeal merely wastes more time if this Court’s decision is affirmed. This case is very similar to Medlock. Here, Plaintiff seeks certification of an appeal to revive 22 her PAGA claim and her claim pursuant to Section 226(e). Whether Plaintiff appeals the Court’s 23 order now or waits until final judgment, the same result would occur and little, if any, time 24 would be saved. Plaintiff argues that interlocutory appeal will materially advance the termination 25 of litigation because it would be more “economical” if the Court only has to preside over one 26 trial with one jury. Like the court in Medlock, this Court agrees that while a single trial might be 27 28 15 1 more convenient, it does not satisfy the materially advanced standard justifying certification for 2 an interlocutory appeal. 3 4 V. DISPOSITION Plaintiff’s motion for certification of the Court’s May 19, 2015, order for interlocutory 5 appeal is DENIED. 6 7 IT IS SO ORDERED. 8 Dated: August 11, 2015 SENIOR DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16

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