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1 Alejandro P. Gutierrez, SBN 107688
agutierrez@hathawaylawfirm. com
2 HATHAWAY, PERRETT, WEBSTER, POWERS,
CHRISMAN & GUTIERREZ, APC
3 5450 Telegraph Road, Suite 200
Ventura, CA 93006-3577
4 Telephone: (805) 644-7111
Facsimile: (805) 644-8296
5
Daniel J. Palay, SBN 159348 Ffimm lORSIED
6 djp@calemploymentcounsel. com
Brian D. Hefelfinger, SBN 253054
7 bdh@calemploymentcounsel. com SEP - 3 2020
PALAY HEFELFINGER, APC
8 1746 S. Victoria Avenue, Suite 230 By: A. Macias
Deputy Clerk
Venmra, California 93001
9 Tel: (805) 628-8220
Fax:(805)765-8600
10
11 Attorneys for Plaintiffs JOHN BOUDREAU
and the Certified Class
12
13 SUPERIOR COURT OF THE STATE OF CALIFORNIA
14 FOR THE COUNTY OF SACRAMENTO (UNLIMITED)
15
16 JOHN BOUDREAU, an individual, on behalf CASE NO.: 34-2018-00247272
17 of himself and all others similarly situated, Complaint filed: Dec. 27, 2018
18 Plaintiffs, Assigned to Dept. 54
vs. PLAINTIFF'S REPLY TO SEPARATE
19
STATEMENT OF MATERIAL FACTS
PRIMERITUS FINANCIAL SERVICES, IN SUPPORT OF PLAINTIFF'S
20 INC., a Delaware Corporation; CHRIS
MOTION FOR SUMMARY
21 MCGUINNESS, an individual; and DOES 1
through 10, inclusive.
ADJUDICATION
22
Defendants. RESERVATION #2517993
23 Date: Sept. 24, 2020
Time: 9:00 a.m.
24 Dept: 54
25
26
27
28
PLAINTIFF'S REPLY TO SEPARATE STATEMENT OF MATERIAL FACTS ISO PLAINTIFF'S MOTION FOR SUMMARY
ADJUDICATION
1 INTRODUCTION
2 Plaintiff JOHN BOUDREAU and the certified class submit this Reply to the Separate Statement
3 of Undisputed Material Facts, together with references to supporting evidence, in support of their Motion
4 for Summary Adjudication against Defendants.
5 Pursuant to said Motion, Plaintiff will and hereby does move this Court for an order summarily
6 adjudicating Defendants' Affirmative Defenses as set forth in the underlying Motion.
7 MOVING PARTY'S UNDISPUTED MATERIAL FACTS
8 AND SUPPORTING EVIDENCE
9 1. Issue No. 1; Did the Defendant comply with California law with regard to the payment of
10 minimum wages for rest periods and other non-productive time worked by class members?
11
12 Plaintiffs Undisputed Materials Facts and Opposing Party's Response and Response
Supporting Evidence
13 1. Defendant Primeritus Financial Services,
Undisputed.
Inc. operates a facility in El Dorado Hills,
14
California. At all times relevant herein. Plaintiff
15 and members of the putative class [now certified]
were employed by Defendants as non-exempt
16 employees in the position of investigator/skip
tracer. Plaintiff and the putative class members'
17 job was to perform skip searches and other desk-
based research to assist Defendant's clients in
18
locating collateral. Defendant plays no role in the
19 physical repossession of collateral.
20 Evidence:
Stipulation of Fact #1, Exhibit 1, attached as
21 Exhibit 1 to the Declaration of Daniel J. Palay
("Palay Decl.").
22
23 2. Plaintiffs initial complaint in this matter
Undisputed.
was filed on December 27, 2018. Accordingly,
24 with respect to claims that apply a foiu'-year
stamte of limitations, that would extend back to
25 December 27, 2014.
26 Evidence:
27 Stipulation of Fact #2, Exhibit 1.
28
PLAINTIFF'S REPLY TO SEPARATE STATEMENT OF MATERIAL FACTS ISO PLAINTIFF'S MOTION FOR SUMMARY
ADJUDICATION
Plaintiffs Undisputed Materials Facts and Opposing Party's Response and Response
1
Supporting Evidence
2 3. During the stamtory period, all class
Undisputed.
members participated in similar pay plans. Each
3 class member was promised that he/she would
4 receive $8.00 for each hour worked. The named
Plaintiff and the class members, in addition to the
5 $8.00 per each hour worked, were informed that
each would be paid pursuant to an incentive plan
6 on a piece rate basis for each item of collateral
located by them and recovered by the third-party
7 recovery service. Defendants' compensation plan
8 was in effect for Plaintiff and members of the
putative class from December 27, 2014 through
9 August 12, 2019. The aforementioned pay plan
awarded points system for each piece of collateral
10 located by the class member and recovered by the
third-party re-possessor. Each point earned was
11
worth $25.00 of piece rate pay. The number of
12 "points" earned per item of collateral recovered
depended on which of Defendant's client
13 accounts the class member worked with. Class
members were informed that they were being
14 paid in the manner reflected above.
15 Evidence:
16 Stipulation of Fact #9, Exhibit 1
17
4. Primerims admits that the class was paid an Disputed, but irrelevant, in part - Plaintiff
18 hourly rate of $8.00 for each hour worked and was mischaracterizes the Parties' Stipulation. The
also paid a piece-rate. Class was not paid an "hourly rate." As set forth
19 in the Stipulation at 6:18-19, "[e]ach class
Evidence: member was promised that he/she would
20
Stipulation of Fact #9, Exhibit 1; Exhibit 4 to Palay receive $8.00 for each hour worked."
21 Decl., Responses to RFAs No. 1 and 2. (Emphasis added.) Plaintiff and the Class were
not hourly employees, they were piece rate
22 employees, and thus Primeritus does not admit
that the class was paid an "hourly rate."
23 Palay Decl., Exhibit 2 at 6:18-19; Exhibit 3,
24 Defendant's Response to Plaintiffs RFAs, Set
Two, No. 1.
25
Plaintiffs response.
26
Here Primertus is not only disputing its own
27 stipulations of facts, it is dispufing the language
28 in its own pay statements and contradicting its
PLAINTIFF'S REPLY TO SEPARATE STATEMENT OF MATERIAL FACTS ISO PLAINTIFF'S MOTION FOR SUMMARY
ADJUDICATION
Plaintiffs Undisputed Materials Facts and Opposing Party's Response and Response
1
Supporting Evidence
2 responses to its Request for Admissions.
Further, it supplies no evidence to support that
3 the fact is disputed. There is simply no
4 evidence, declaratory or otherwise provided to
support Defendant's indication that the fact is
5 in dispute. In such a situation, the court is
neither permitted to act sua sponte nor solely
6 upon the basis of argument in its determination
as to whether the Defendant has supplied
7 evidence to dispute the alleged fact. Here, the
8 court shall consider all of the evidence set forth
in the papers, ... and all inferences reasonably
9 deducible from the evidence (§ 437c, subd.
(c), italics added.) Section 437c also provides
10 that moving party ... may not rely upon the mere
allegations or denials of its pleadings to show
11 ... a triable issue of material fact exists but,
12 instead, shall set forth the specific facts
showing that a triable issue
13 of material fact exists...." (Id., subd. (o)(2).)
"The statute itself thus implies the
14 corresponding need for concrete evidence from
the party and expressly requires the party to
15 supply more than the bare assertion, whether
16 alleged in a pleading or by way of argument."
17 Scheiding v. Dinwiddle Const. Co., 69 Cal.
App. 4th 64, 75-76, 81 Cal. Rptr. 2d 360, 367
18 (1999)
19
20 Fact #9 of the stipulation relates: "During the
statutory period, all class members participated
21 in similar pay plans. Each class member was
promised that he/she would receive $8.00 for
22 each hour worked. The named Plaintiff and the
class members, in addition to the $8.00 per each
23
hour worked, were informed that each would be
24 paid pursuant to an incentive plan on a piece
rate basis for each item of collateral located by
25 them and recovered by the third party recovery
service." [emphasis added]
26
27 Stipulated Fact #16, relates, "Primertus
contends that the eight dollars paid for each
28
PLAINTIFF'S REPLY TO SEPARATE STATEMENT OF MATERIAL FACTS ISO PLAINTIFF'S MOTION FOR SUMMARY
ADJUDICATION
Plaintiffs Undisputed Materials Facts and Opposing Party's Response and Response
1
Supporting Evidence
2 hour worked satisfied any requirement to
separately pay for non-productive time and that,
3 given the amount of hourly pay received and
4 the limited non-productive time, no minimum
wage violation occurred."
5
Stipulated Fact #10 relates: "Each class
6 member received wage statements that are in
the same form as are attached as Exhibit " 1 "
7 and which contain the same type of
8 information. Defendant Primertus practices for
creating wage statements was uniformly
9 applied to all class members during the
statutory period. The general format of the
10 wage statements did not vary during the class
period."
11
12 Exhibit " 1 " [the exemplar pay statement]
indicates that the regular rate of pay was $8.00
13 per hour."
14 Request for Admission No. 2 [Exhibit 3]
relates: "Admit that in addition to being paid a
15 "piece rate" as that term is defined in California
16 Labor Code §226.2 and §2.5.1 of the DLSE
Enforcement Manual ["Work paid for
17 according to the number of units turned out."].
Plaintiff was also paid an hourly rate of $8.00
18 per hour during his employment with the
Defendant."
19
20 Defendant's Response to Reques for
Admission No. 2 [Exhibit 3] was as follows:
21 "Defendant objects to this Request to the extent
it seeks a legal opinion or conclusion. Subject
22 to and without waiving the foregoing objection,
Defendant responds as follows:
23 Defendant admits that Plaintiff received a base
24 hourly pay of $8.00 for each hour worked in
addition to his piece rate pay." [emphasis
25 added].
26 Here a party is not permitted to create a triable
issue of material fact by contradicting its own
27 admissions. "For summary judgment purposes.
28
PLAINTIFF'S REPLY TO SEPARATE STATEMENT OF MATERIAL FACTS ISO PLAINTIFF'S MOTION FOR SUMMARY
ADJUDICATION
Plaintiffs Undisputed Materials Facts and Opposing Party's Response and Response
1
Supporting Evidence
2 a party is bound by his or her admissions made
in the course of discovery!' (Weil & Brown,
3
Cal. Practice Guide: Civil Procedure before
4 Trial (1988) 10:84.))" D'Amico v. Board of
Medical Examiners (1974) 11 Cal.3d 1, 112
5 Cal.Rptr. 786, 520 P.2d \0 (D'Amico);
Scheiding v. Dinwiddie Const. Co., supra.
6
7
5. The California minimum wage in 2014 and
Undisputed.
8 2015 was $9.00/hour; in 2016 it was $10.00/hour;
in 2017 it was $]0.50/hour; and in 2018 it was
9 $11.00/hour; and in 2019 it is $12.00/hour for
employers with more than 25 employers. During
10 these time periods, the Defendant has stipulated it
11 employed more than 25 employees.
12 Evidence:
Stipulation of Fact #11, 12, Exhibit 1.
13
6. Although the parties have a factual Disputed in part and contradicts Plaintiffs
14
disagreement concerning the amount of non- testimony. Thus, Defendant objects on the
15 productive time worked by class members on a grounds that Plaintiff assumes facts not in
weekly basis, the parties agree that rest periods and evidence
16 possibly other non-productive time (meetings with
management, training and time spent tracking Further, the insertion of the disputed portion of
17 collateral located by the class member where the this fact is a question of law and not a disputed
collateral was not recovered by the third-party re- fact. Defendant does not dispute that, on
18 occasion, collateral goes unlocated. Defendant
possessor) did occur as that term is defined in
19 Califomia Labor Code §226.2. Any non- disagrees that, as a matter of law, this is
productive time occurring during the work day was nonproductive time. Paragraph 13 of the
20 not recorded by Primeritus during the statutory Parties' Stipulation reads verbatim as follows:
period. There is no written record of the amount "Although the parties have a factual
21 of non-productive time worked by class members disagreement concerning the amount of non-
during the stamtory period. productive time worked by class members on a
22 weekly basis, the parties agree that rest periods
Evidence: and possibly other nonproductive time
23
Stipulation of Fact #13, Exhibit 1. (meetings with management) did occur as that
24 term is defined in Califomia Labor Code
§226.2. Any non-productive time occurring
25 during the work day was not recorded by
Primerims during the stamtory period. There is
26 no written record of the amount of non-
27 productive time worked by class members
during the stamtory period." Palay Deck,
28
PLAINTIFF'S REPLY TO SEPARATE STATEMENT OF MATERIAL FACTS ISO PLAINTIFF'S MOTION FOR SUMMARY
ADJUDICATION
Plaintiffs Undisputed Materials Facts and Opposing Party's Response and Response
1
Supporting Evidence
2 Exhibit 2 at 7:9-15. Plaintiff adds an additional,
non-productive time activity consisting of
3 "time spent tracking collateral located by the
4 class member where the collateral was not
recovered by the thirdparty re-possessor.
5 Plaintiff discussed his nonproductive activities
at length during his deposition, but failed to
6 raise this alleged nonproductive time activity.
In his deposition. Plaintiff conceded that the
7
only nonproductive time activities consist of
8 company meetings, trainings, or a company-
sponsored social event - there is not anything
9 else that would have taken him away from his
duties of actively locating collateral for
10 recovery. Here, Plaintiff provides no evidence
that his "time spent tracking collateral located
11
by the class member where the collateral was
12 not recovered by the third-party re-possessor"
was non-productive time. All time spent
13 actively locating collateral for repossession -
whether recovered or not - is time spent
14 working toward earning a piece-rate, and thus
15 is productive time. In the same way that a
shirtmaker, who is paid by the piece for making
16 shirts, may not be paid for a shirt that is sewn
improperly or contains a tear. Skip Tracers are
17 not paid for collateral not located. This does not
convert productive time working towards a
18 piece to nonproductive time. To this extent.
19 Plaintiffs addition to the stipulated language
regarding nonproductive time addressing time
20 spent tracking collateral that goes unlocated, is
disputed. Specifically, Plaintiff discussed the
21 following: "Q. We talked about meetings and
reviews and training. Is there anything else that
22 Primerims required you to do that took you
23 away from your duties as an investigator? A.
Benefit meetings. Q. And how much time did
24 you spend in benefit meetings each year? A.
Typically - typically an hour. Q. Anything
25 else? A. I can't recall, no. Q. Okay. So aside
from anything else that - or all the things that
26
we've discussed thus far, you can't think of
27 anything else that would have taken you away
from your investigator duties that Primerims
28
PLAINTIFF'S REPLY TO SEPARATE STATEMENT OF MATERIAL FACTS ISO PLAINTIFF'S MOTION FOR SUMMARY
ADJUDICATION
Plaintiffs Undisputed Materials Facts and Opposing Party's Response and Response
1
Supporting Evidence
2 required you to do? A. No." Jenkins Deck,
Exhibit 1, Pltf's Depo. at 85:7- 22. D'Amico v.
3 Bd. of Med. Examiners ((1974) 11 Cal.3d 1)
4 recognized that admissions against interest
have a very high credibility value. This is
5 especially true when...the admission is
obtained not in the normal course of human
6 activities and affairs, but in the context of an
established pretrial procedure whose purpose is
7 to elicit facts. (Id. at 21-22.) Courts thus
8 consistently refuse to allow a triable issue of
fact to be conjured by the submission of an
9 affidavit contradicting a declarant's prior
deposition testimony. (See NeuVisions Sports,
10 Inc. V. Soren/McAdam/Bartells (2000) 86
Cal.App.4th 303, 309.)
11
12 Plaintiffs response
13 The portion disputed by the Defendant is
immaterial to the issue and Claimant will agree
14 to strike the following words: "training and
15 time spent tracking collateral located by the
class member where the collateral was not
16 recovered by the third-party re-possessor" so
that the proposed fact is identical to Stipulated
17 Fact #13.
7. During rest periods or non-productive time
18 Undisputed.
worked, the Plaintiff did not and could not work
19 toward earning a piece rate.
20 Evidence:
Stipulation of Fact #14, Exhibit 1.
21
8. Defendants admit that Califomia Labor
22 Undisputed.
Code §226.2 is applicable to the Plaintiffs claim.
23
Evidence:
24 Palay, Decl ^9; Exhibit 4 to Palay Deck, Response
to RFA No. 5.
25
26
27
28
PLAINTIFF'S REPLY TO SEPARATE STATEMENT OF MATERIAL FACTS ISO PLAINTIFF'S MOTION FOR SUMMARY
ADJUDICATION
1 Issue No. 2; Do the pay smbs provided to class members comply with Califomia Labor Code
2 §226(a)?
3
4 Plaintiffs Undisputed Materials Facts and Opposing Party's Response and Supporting
Supporting Evidence Evidence
5 9. Plaintiff hereby incorporates UMF facts Defendant hereby incorporates its objections
and evidence numbers 1 through 6, and 8. and responses to Plaintiffs UMF Nos. 1
6 through 6, and 8.
10. Each class member received wage Undisputed.
7
statements that are in the same format as
8 are attached as Exhibit " 1 " and which
contained the same type of information.
9
Evidence:
10 Stipulation of Fact #10, Exhibit 1.
11
11. Defendant Primerims' practices for Undisputed.
12 creating wage statements was uniformly
applied to all class members during the
13 stamtory period. The general format of the
wage statements did not vary during the
14
class period.
15
Evidence:
16 Stipulation of Fact #10, Exhibit 1.
17 12. The wage statements do not contain the Disputed in part. While looking at the
18 number of piece-rate units earned and do "exemplar" wage statement attached to the
not contain any applicable piece rate. Parties' Stipulation, it shows that Plaintiff
19 earned a total piece-rate amount of $775.00
Evidence: (which was labeled as "Commission" on the
20 Palay, Decl T|6, Exhibit 1 [see wage statements pay smb). (Given that each piece-rate (here,
attached as Exhibit 1 to Exhibit 1. each point eamed) was worth $25.00, all
21 Plaintiff had to do to determine the number of
22 piece-rate unites eamed was "simple math."
Taking $775.00 and dividing it by $25.00 yields
23 31 - meaning Plaintiff eamed 31 points (or
piece-rate units) during this particular pay
24 period. (See Raines v. Coastal Pac. Food
Distribs., Inc. (2018) 23 Cal.App.5th 667, 677
25 ["[t]he mathematical operation required is
26 division, which is taught in grade school.
Although many people cannot perform the
27 calculation in their heads, it can be easily
performed by use of a pencil and paper or a
28
PLAINTIFF'S REPLY TO SEPARATE STATEMENT OF MATERIAL FACTS ISO PLAINTIFF'S MOTION FOR SUMMARY
ADJUDICATION
Plaintiffs Undisputed Materials Facts and Opposing Party's Response and Supporting
1 Supporting Evidence Evidence
2 calculator; no additional documents or
information are necessary"].)
3
Plaintiffs Response:
4
5 Defendant cannot dispute that the wage
statements do not list the number of pieces as
6 required by law. Rather, it contends that by
showing the piece rate amount "labeled as
7 'Commission' on the pay smb, the Plaintiff
(and apparently each class member) could
8
simply perform what it refers to as "simple
9 math to determine the number of piece rate
units." This is argument and not a legitimate
10 dispute of the fact alleged. Further, such an
argument isflawedfor three basic reasons.
11
12 First, it does not dispute the fact that the number
of piece rate units is not on the paysmbs as
13 required by Califomia Labor Code §226. In
fact, according to the Defendant, the total
14 amount paid for piece rates is listed under
"commissions".
15
16 Second, there is simply no evidence,
declaratory or otherwise provided to support
17 Defendant's indication that the fact is in
dispute. In such a simation, the court is neither
18 permitted to act sua sponte nor solely upon the
basis of argument in its determination as to
19
whether the Defendant has supplied evidence to
20 dispute the alleged fact. Here, the court shall
consider all of the evidence set forth in the
21 papers, ... and all inferences reasonably
deducible from the evidence (§ 437c, subd.
22 (c), italics added.) Section 437c also provides
23 that moving party ... may not rely upon the mere
allegations or denials of its pleadings to show
24 ... a triable issue of material fact exists but,
instead, shall set forth the specific facts
25 showing that a triable issue
of material fact exists...." (M, subd. (o)(2).)
26 "The stamte itself thus implies the
27 corresponding need for concrete evidence from
the party and expressly requires the party to
28
PLAINTIFF'S REPLY TO SEPARATE STATEMENT OF MATERIAL FACTS ISO PLAINTIFF'S MOTION FOR SUMMARY
ADJUDICATION
Plaintiffs Undisputed Materials Facts and Opposing Party's Response and Supporting
1
Supporting Evidence Evidence
2 supply more than the bare assertion, whether
alleged in a pleading or by way of argument."
3 Scheiding v. Dinwiddie Const Co., 69 Cal.
App. 4th 64, 75-76, 81 Cal. Rptr. 2d 360, 367
4
(1999)
5
6 Third, such a contention that "simple math"
would solve the problem is unsupported by
7 evidence and does not shield the Defendant
from liability. "The purpose of the requirement
8
is that employees need not engage in the
9 discovery and mathematical computations to
analyze the very information that Califomia
10 law requires.
11 Wang V. Chinese Daily News, Inc^, 435 F. Supp.
12 2d 1042, 1051 (CD. Cal. 2006), affd, 623 F.3d
743 (9th Cir. 2010), [(explaining that Section
13 226 is violated i f employees are required to
perform "arithmetic computations" ]
14
Here, even assuming simple math could be
15
used, the employee would have to understand
16 that by "Commissions", the Employer really
meant "Piece Rate" and there is no way for the
17 employee to determine exactly how many
"pieces" were completed, no way to check the
18 math, and no way to determine if the overtime
was paid correctly for the piece rate without
19
engaging in discovery of the information and
20 complicated mathematics. In fact, the Plaintiff
testified that he had to request the formula from
21 the Defendants to attempt to calculate the
wages and he kept coming up with differing
22 amounts. [Plaintiff s deposition 150:5-25].
23 13. The Defendant admits that the Plaintiff did Undisputed.
not sell any services or property on behalf
24 of the Defendant and was not paid
"commission wages" as that term is
25 defined in Califomia Labor Code §204.1
["Commission wages are compensation
26
paid to any person for services rendered in
27 the sale of such employer's property or
28
11
PLAINTIFF'S REPLY TO SEPARATE STATEMENT OF MATERIAL FACTS ISO PLAINTIFF'S MOTION FOR SUMMARY
ADJUDICATION
Plaintiffs Undisputed Materials Facts and Opposing Party's Response and Supporting
1 Supporting Evidence Evidence
2 services and based proportionately upon
the amount of value thereof"]
3
Evidence:
4 Palay, Decl ^9, Exhibit 4 to Palay Deck, Response
to RFA Nos. 3 and 4
5
6
7 Issue No. 3: Does the failure to pay the class at least the minimum wage for rest periods, entifle
8 each class member to one additional hour of pay at the employee's regular rate of compensation for each
9 workday that the rest period was not paid at the minimum wage pursuant to Califomia Labor Code
10 §226.7?
11
Plaintiffs Undisputed Materials Facts and Opposing Party's Response and Supporting
12 Supporting Evidence Evidence
14. Plaintiff hereby incorporates UMF facts Defendant hereby incorporates its objections
13 and evidence numbers one through and responses to Plaintiffs UMF Nos. 1
14 thirteen. through 13.
15
ADDITIONAL UNDISPUTED MATERIAL FACTS OFFERED BY DEFENDANT
16
17 Defendant's Undisputed Materials Facts and Plaintiffs Response and Supporting
Supporting Evidence Evidence
18 15. Plaintiff concedes that, with the exception Undisputed but irrelevant.
19 of one time regarding a dispute with
Primerims over a deduction of his piece-
20 rate pay, he was not aware of a time when
the points he eamed did not match the
21 commission amount on his wage
statement.
22
Declaration of Nathaniel Jenkins in
23 Support of Defendant's Opposition to
24 Plaintiffs Motion for Summary
Adjudication ("Jenkins Deck"), Exhibit 1
25 (Plaintiffs Depo.) at 149:4-25; 150:1-4
16. Plaintiff concedes that his wage statements Objection and Disputed. Defendant misstates
26 accurately reflected what Primerims paid the deposition testimony of the Plaintiff as he
27 him. never conceded the wage statement was
accurate. That actoal testimony is as follows:
28 12
PLAINTIFF'S REPLY TO SEPARATE STATEMENT OF MATERIAL FACTS ISO PLAINTIFF'S MOTION FOR SUMMARY
ADJUDICATION
Defendant's Undisputed Materials Facts and Plaintiffs Response and Supporting
1 Supporting Evidence Evidence
2 Jenkins Deck, Exhibit 1, Pltf's Depo. at "Q. Yes. This is a wage statement we looked
151:18-25. at earlier. Is there anything on this wage
3 statement that inaccurately reflects what you
were paid on that particular pay period?"
4 "MR. GUTIERREZ: If you know.
THE WITNESS: Well, I would say - I would
5
say I don't know. The commission rate and the
6 overtime on commission, I'm taking at faith
because it's not broken down." [Plaintiffs depo
7 at 148:20-149:3][Exhibit "A" attached to the
Declaration of Daniel J. Palay]..
8
9 17. Plaintiff and the Skip Tracers would keep Undisputed but irrelevant.
track of their successfiil vehicle recoveries
10 and denote the points they eamed for each
recovery on a document labeled a
11 "commission sheet."
12
Jenkins Deck, Exhibit 1, Pltfs Depo. at
13 149:13- 20; Defendant's Request for
Judicial Notice ("RJN"), Docket No. 77,
14 Compendium of Evidence ("COE"),
Exhibit 3, McGinness Decl. at H 7
15 18. The Skip Tracers would provide this Undisputed but irrelevant.
16 commission sheet to Primerims and sign
off on its accuracy before it was provided
17 to Primerims' payroll department to be
calculated into the Skip Tracers' paycheck.
18
Jenkins Deck, Exhibit 1, Pltfs Depo. at
19
149:13- 20; Defendant's RJN, Docket No.
20 77, COE, Exhibit 3, McGinness Decl. at ^
7
21 19. Primerims retained the commission sheets Undisputed but irrelevant.
denoting the points for each Skip Tracer.
22
23 Defendant's RJN, Docket No. 77, COE,
Exhibit 3, McGinness Decl. at ^ 7
24
25
///
26
///
27
28
13
PLAINTIFF'S REPLY TO SEPARATE STATEMENT OF MATERIAL FACTS ISO PLAINTIFF'S MOTION FOR SUMMARY
ADJUDICATION
1 Respectfully submitted
Dated : Sept. 3, 2020 HATHAWAY PERRETT WEBSTER POWERS
2 CHRISMAN & GUTIERREZ, APC
3
4 By:
Alejandro P. Gutierrez
5 Attomeys for Plaintiffs JOHN
6 BOUDREAU and the Certified Class
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28 14
PLAINTIFF'S REPLY TO SEPARATE STATEMENT OF MATERIAL FACTS ISO PLAINTIFF'S MOTION FOR SUMMARY
ADJUDICATION
PROOF OF S E R V I C E
1
2 I am employed in the County of Ventura, State of Califomia. I am over the age of
eighteen (18) years and not a party to the within action. My business address is 5450 Telegraph
3 Road, Suite 200, Ventura, Califomia 93003.
4
On the date below, I caused to be served, the foregoing document PLAINTIFF'S REPLY TO
5 SEPARATE STATEMENT OF MATERIAL FACTS IN SUPPORT OF PLAINTIFF'S MOTION
FOR SUMMARY ADJUDICATION on the interested parties in said action by placing the true
6
copies thereof enclosed in sealed envelopes addressed as follows:
7
Keith A. Jacoby Attorneys for Defendants, Primeritus
8 Bradley E. Schwan
Littler Mendelson, PC Financial Services and Chris
9 McGinness
2049 Cenmry Park East, 5*^ Floor
10 Los Angeles, CA 90067-3107
Tel: (310) 553-0308 / Fax: (310) 553-5583
11 kjacoby@littler.com/bschwan@littler.com
12 Nathaniel H. Jenkins
Littler Mendelson, PC
13
500 Capitol Mall, Suite 2000
14 Sacramento, CA 95814
Tel: (916) 830-7200 / Fax: (916) 561-0828
15 njenkins@littler.com
16 [ ] BY MAIL: By placing a tme copy thereof enclosed in a sealed envelope addressed to
17 the addressee(s) listed above. I am "readily familiar" with the firm's practice of collection
and processing correspondence for mailing. Under that practice, it would be deposited
18 with the U.S. Postal Service on that same date with postage thereon fully prepaid at
Venmra, Califomia, in the ordinary course of business. I am aware that on motion of the
19 party served, service is presumed invalid if postal cancellation date or postage meter date
is more than one day after date of deposit for mailing in affidavit.
20
21 [X] (ELECTRONIC MAIL) from _@hathawaylawfirm.com and addressed to the
above person(s)/entity(ies)
22
I declare under penalty of perjury under the laws of the State of Califomia that the
23 foregoing is true and correct. Executed on September 4, 2020Ventura, California.
24
25
26 Edna Byerly
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28 15
PLAINTIFF'S REPLY TO SEPARATE STATEMENT OF MATERIAL FACTS ISO PLAINTIFF'S MOTION FOR SUMMARY
ADJUDICATION
Preview
1 Alejandro P. Gutierrez, SBN 107688 agutierrez@hathawaylawfirm. com 2 HATHAWAY, PERRETT, WEBSTER, POWERS, CHRISMAN & GUTIERREZ, APC 3 5450 Telegraph Road, Suite 200 Ventura, CA 93006-3577 4 Telephone: (805) 644-7111 Facsimile: (805) 644-8296 5 Daniel J. Palay, SBN 159348 Ffimm lORSIED 6 djp@calemploymentcounsel. com Brian D. Hefelfinger, SBN 253054 7 bdh@calemploymentcounsel. com SEP - 3 2020 PALAY HEFELFINGER, APC 8 1746 S. Victoria Avenue, Suite 230 By: A. Macias Deputy Clerk Venmra, California 93001 9 Tel: (805) 628-8220 Fax:(805)765-8600 10 11 Attorneys for Plaintiffs JOHN BOUDREAU and the Certified Class 12 13 SUPERIOR COURT OF THE STATE OF CALIFORNIA 14 FOR THE COUNTY OF SACRAMENTO (UNLIMITED) 15 16 JOHN BOUDREAU, an individual, on behalf CASE NO.: 34-2018-00247272 17 of himself and all others similarly situated, Complaint filed: Dec. 27, 2018 18 Plaintiffs, Assigned to Dept. 54 vs. PLAINTIFF'S REPLY TO SEPARATE 19 STATEMENT OF MATERIAL FACTS PRIMERITUS FINANCIAL SERVICES, IN SUPPORT OF PLAINTIFF'S 20 INC., a Delaware Corporation; CHRIS MOTION FOR SUMMARY 21 MCGUINNESS, an individual; and DOES 1 through 10, inclusive. ADJUDICATION 22 Defendants. RESERVATION #2517993 23 Date: Sept. 24, 2020 Time: 9:00 a.m. 24 Dept: 54 25 26 27 28 PLAINTIFF'S REPLY TO SEPARATE STATEMENT OF MATERIAL FACTS ISO PLAINTIFF'S MOTION FOR SUMMARY ADJUDICATION 1 INTRODUCTION 2 Plaintiff JOHN BOUDREAU and the certified class submit this Reply to the Separate Statement 3 of Undisputed Material Facts, together with references to supporting evidence, in support of their Motion 4 for Summary Adjudication against Defendants. 5 Pursuant to said Motion, Plaintiff will and hereby does move this Court for an order summarily 6 adjudicating Defendants' Affirmative Defenses as set forth in the underlying Motion. 7 MOVING PARTY'S UNDISPUTED MATERIAL FACTS 8 AND SUPPORTING EVIDENCE 9 1. Issue No. 1; Did the Defendant comply with California law with regard to the payment of 10 minimum wages for rest periods and other non-productive time worked by class members? 11 12 Plaintiffs Undisputed Materials Facts and Opposing Party's Response and Response Supporting Evidence 13 1. Defendant Primeritus Financial Services, Undisputed. Inc. operates a facility in El Dorado Hills, 14 California. At all times relevant herein. Plaintiff 15 and members of the putative class [now certified] were employed by Defendants as non-exempt 16 employees in the position of investigator/skip tracer. Plaintiff and the putative class members' 17 job was to perform skip searches and other desk- based research to assist Defendant's clients in 18 locating collateral. Defendant plays no role in the 19 physical repossession of collateral. 20 Evidence: Stipulation of Fact #1, Exhibit 1, attached as 21 Exhibit 1 to the Declaration of Daniel J. Palay ("Palay Decl."). 22 23 2. Plaintiffs initial complaint in this matter Undisputed. was filed on December 27, 2018. Accordingly, 24 with respect to claims that apply a foiu'-year stamte of limitations, that would extend back to 25 December 27, 2014. 26 Evidence: 27 Stipulation of Fact #2, Exhibit 1. 28 PLAINTIFF'S REPLY TO SEPARATE STATEMENT OF MATERIAL FACTS ISO PLAINTIFF'S MOTION FOR SUMMARY ADJUDICATION Plaintiffs Undisputed Materials Facts and Opposing Party's Response and Response 1 Supporting Evidence 2 3. During the stamtory period, all class Undisputed. members participated in similar pay plans. Each 3 class member was promised that he/she would 4 receive $8.00 for each hour worked. The named Plaintiff and the class members, in addition to the 5 $8.00 per each hour worked, were informed that each would be paid pursuant to an incentive plan 6 on a piece rate basis for each item of collateral located by them and recovered by the third-party 7 recovery service. Defendants' compensation plan 8 was in effect for Plaintiff and members of the putative class from December 27, 2014 through 9 August 12, 2019. The aforementioned pay plan awarded points system for each piece of collateral 10 located by the class member and recovered by the third-party re-possessor. Each point earned was 11 worth $25.00 of piece rate pay. The number of 12 "points" earned per item of collateral recovered depended on which of Defendant's client 13 accounts the class member worked with. Class members were informed that they were being 14 paid in the manner reflected above. 15 Evidence: 16 Stipulation of Fact #9, Exhibit 1 17 4. Primerims admits that the class was paid an Disputed, but irrelevant, in part - Plaintiff 18 hourly rate of $8.00 for each hour worked and was mischaracterizes the Parties' Stipulation. The also paid a piece-rate. Class was not paid an "hourly rate." As set forth 19 in the Stipulation at 6:18-19, "[e]ach class Evidence: member was promised that he/she would 20 Stipulation of Fact #9, Exhibit 1; Exhibit 4 to Palay receive $8.00 for each hour worked." 21 Decl., Responses to RFAs No. 1 and 2. (Emphasis added.) Plaintiff and the Class were not hourly employees, they were piece rate 22 employees, and thus Primeritus does not admit that the class was paid an "hourly rate." 23 Palay Decl., Exhibit 2 at 6:18-19; Exhibit 3, 24 Defendant's Response to Plaintiffs RFAs, Set Two, No. 1. 25 Plaintiffs response. 26 Here Primertus is not only disputing its own 27 stipulations of facts, it is dispufing the language 28 in its own pay statements and contradicting its PLAINTIFF'S REPLY TO SEPARATE STATEMENT OF MATERIAL FACTS ISO PLAINTIFF'S MOTION FOR SUMMARY ADJUDICATION Plaintiffs Undisputed Materials Facts and Opposing Party's Response and Response 1 Supporting Evidence 2 responses to its Request for Admissions. Further, it supplies no evidence to support that 3 the fact is disputed. There is simply no 4 evidence, declaratory or otherwise provided to support Defendant's indication that the fact is 5 in dispute. In such a situation, the court is neither permitted to act sua sponte nor solely 6 upon the basis of argument in its determination as to whether the Defendant has supplied 7 evidence to dispute the alleged fact. Here, the 8 court shall consider all of the evidence set forth in the papers, ... and all inferences reasonably 9 deducible from the evidence (§ 437c, subd. (c), italics added.) Section 437c also provides 10 that moving party ... may not rely upon the mere allegations or denials of its pleadings to show 11 ... a triable issue of material fact exists but, 12 instead, shall set forth the specific facts showing that a triable issue 13 of material fact exists...." (Id., subd. (o)(2).) "The statute itself thus implies the 14 corresponding need for concrete evidence from the party and expressly requires the party to 15 supply more than the bare assertion, whether 16 alleged in a pleading or by way of argument." 17 Scheiding v. Dinwiddle Const. Co., 69 Cal. App. 4th 64, 75-76, 81 Cal. Rptr. 2d 360, 367 18 (1999) 19 20 Fact #9 of the stipulation relates: "During the statutory period, all class members participated 21 in similar pay plans. Each class member was promised that he/she would receive $8.00 for 22 each hour worked. The named Plaintiff and the class members, in addition to the $8.00 per each 23 hour worked, were informed that each would be 24 paid pursuant to an incentive plan on a piece rate basis for each item of collateral located by 25 them and recovered by the third party recovery service." [emphasis added] 26 27 Stipulated Fact #16, relates, "Primertus contends that the eight dollars paid for each 28 PLAINTIFF'S REPLY TO SEPARATE STATEMENT OF MATERIAL FACTS ISO PLAINTIFF'S MOTION FOR SUMMARY ADJUDICATION Plaintiffs Undisputed Materials Facts and Opposing Party's Response and Response 1 Supporting Evidence 2 hour worked satisfied any requirement to separately pay for non-productive time and that, 3 given the amount of hourly pay received and 4 the limited non-productive time, no minimum wage violation occurred." 5 Stipulated Fact #10 relates: "Each class 6 member received wage statements that are in the same form as are attached as Exhibit " 1 " 7 and which contain the same type of 8 information. Defendant Primertus practices for creating wage statements was uniformly 9 applied to all class members during the statutory period. The general format of the 10 wage statements did not vary during the class period." 11 12 Exhibit " 1 " [the exemplar pay statement] indicates that the regular rate of pay was $8.00 13 per hour." 14 Request for Admission No. 2 [Exhibit 3] relates: "Admit that in addition to being paid a 15 "piece rate" as that term is defined in California 16 Labor Code §226.2 and §2.5.1 of the DLSE Enforcement Manual ["Work paid for 17 according to the number of units turned out."]. Plaintiff was also paid an hourly rate of $8.00 18 per hour during his employment with the Defendant." 19 20 Defendant's Response to Reques for Admission No. 2 [Exhibit 3] was as follows: 21 "Defendant objects to this Request to the extent it seeks a legal opinion or conclusion. Subject 22 to and without waiving the foregoing objection, Defendant responds as follows: 23 Defendant admits that Plaintiff received a base 24 hourly pay of $8.00 for each hour worked in addition to his piece rate pay." [emphasis 25 added]. 26 Here a party is not permitted to create a triable issue of material fact by contradicting its own 27 admissions. "For summary judgment purposes. 28 PLAINTIFF'S REPLY TO SEPARATE STATEMENT OF MATERIAL FACTS ISO PLAINTIFF'S MOTION FOR SUMMARY ADJUDICATION Plaintiffs Undisputed Materials Facts and Opposing Party's Response and Response 1 Supporting Evidence 2 a party is bound by his or her admissions made in the course of discovery!' (Weil & Brown, 3 Cal. Practice Guide: Civil Procedure before 4 Trial (1988) 10:84.))" D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 112 5 Cal.Rptr. 786, 520 P.2d \0 (D'Amico); Scheiding v. Dinwiddie Const. Co., supra. 6 7 5. The California minimum wage in 2014 and Undisputed. 8 2015 was $9.00/hour; in 2016 it was $10.00/hour; in 2017 it was $]0.50/hour; and in 2018 it was 9 $11.00/hour; and in 2019 it is $12.00/hour for employers with more than 25 employers. During 10 these time periods, the Defendant has stipulated it 11 employed more than 25 employees. 12 Evidence: Stipulation of Fact #11, 12, Exhibit 1. 13 6. Although the parties have a factual Disputed in part and contradicts Plaintiffs 14 disagreement concerning the amount of non- testimony. Thus, Defendant objects on the 15 productive time worked by class members on a grounds that Plaintiff assumes facts not in weekly basis, the parties agree that rest periods and evidence 16 possibly other non-productive time (meetings with management, training and time spent tracking Further, the insertion of the disputed portion of 17 collateral located by the class member where the this fact is a question of law and not a disputed collateral was not recovered by the third-party re- fact. Defendant does not dispute that, on 18 occasion, collateral goes unlocated. Defendant possessor) did occur as that term is defined in 19 Califomia Labor Code §226.2. Any non- disagrees that, as a matter of law, this is productive time occurring during the work day was nonproductive time. Paragraph 13 of the 20 not recorded by Primeritus during the statutory Parties' Stipulation reads verbatim as follows: period. There is no written record of the amount "Although the parties have a factual 21 of non-productive time worked by class members disagreement concerning the amount of non- during the stamtory period. productive time worked by class members on a 22 weekly basis, the parties agree that rest periods Evidence: and possibly other nonproductive time 23 Stipulation of Fact #13, Exhibit 1. (meetings with management) did occur as that 24 term is defined in Califomia Labor Code §226.2. Any non-productive time occurring 25 during the work day was not recorded by Primerims during the stamtory period. There is 26 no written record of the amount of non- 27 productive time worked by class members during the stamtory period." Palay Deck, 28 PLAINTIFF'S REPLY TO SEPARATE STATEMENT OF MATERIAL FACTS ISO PLAINTIFF'S MOTION FOR SUMMARY ADJUDICATION Plaintiffs Undisputed Materials Facts and Opposing Party's Response and Response 1 Supporting Evidence 2 Exhibit 2 at 7:9-15. Plaintiff adds an additional, non-productive time activity consisting of 3 "time spent tracking collateral located by the 4 class member where the collateral was not recovered by the thirdparty re-possessor. 5 Plaintiff discussed his nonproductive activities at length during his deposition, but failed to 6 raise this alleged nonproductive time activity. In his deposition. Plaintiff conceded that the 7 only nonproductive time activities consist of 8 company meetings, trainings, or a company- sponsored social event - there is not anything 9 else that would have taken him away from his duties of actively locating collateral for 10 recovery. Here, Plaintiff provides no evidence that his "time spent tracking collateral located 11 by the class member where the collateral was 12 not recovered by the third-party re-possessor" was non-productive time. All time spent 13 actively locating collateral for repossession - whether recovered or not - is time spent 14 working toward earning a piece-rate, and thus 15 is productive time. In the same way that a shirtmaker, who is paid by the piece for making 16 shirts, may not be paid for a shirt that is sewn improperly or contains a tear. Skip Tracers are 17 not paid for collateral not located. This does not convert productive time working towards a 18 piece to nonproductive time. To this extent. 19 Plaintiffs addition to the stipulated language regarding nonproductive time addressing time 20 spent tracking collateral that goes unlocated, is disputed. Specifically, Plaintiff discussed the 21 following: "Q. We talked about meetings and reviews and training. Is there anything else that 22 Primerims required you to do that took you 23 away from your duties as an investigator? A. Benefit meetings. Q. And how much time did 24 you spend in benefit meetings each year? A. Typically - typically an hour. Q. Anything 25 else? A. I can't recall, no. Q. Okay. So aside from anything else that - or all the things that 26 we've discussed thus far, you can't think of 27 anything else that would have taken you away from your investigator duties that Primerims 28 PLAINTIFF'S REPLY TO SEPARATE STATEMENT OF MATERIAL FACTS ISO PLAINTIFF'S MOTION FOR SUMMARY ADJUDICATION Plaintiffs Undisputed Materials Facts and Opposing Party's Response and Response 1 Supporting Evidence 2 required you to do? A. No." Jenkins Deck, Exhibit 1, Pltf's Depo. at 85:7- 22. D'Amico v. 3 Bd. of Med. Examiners ((1974) 11 Cal.3d 1) 4 recognized that admissions against interest have a very high credibility value. This is 5 especially true when...the admission is obtained not in the normal course of human 6 activities and affairs, but in the context of an established pretrial procedure whose purpose is 7 to elicit facts. (Id. at 21-22.) Courts thus 8 consistently refuse to allow a triable issue of fact to be conjured by the submission of an 9 affidavit contradicting a declarant's prior deposition testimony. (See NeuVisions Sports, 10 Inc. V. Soren/McAdam/Bartells (2000) 86 Cal.App.4th 303, 309.) 11 12 Plaintiffs response 13 The portion disputed by the Defendant is immaterial to the issue and Claimant will agree 14 to strike the following words: "training and 15 time spent tracking collateral located by the class member where the collateral was not 16 recovered by the third-party re-possessor" so that the proposed fact is identical to Stipulated 17 Fact #13. 7. During rest periods or non-productive time 18 Undisputed. worked, the Plaintiff did not and could not work 19 toward earning a piece rate. 20 Evidence: Stipulation of Fact #14, Exhibit 1. 21 8. Defendants admit that Califomia Labor 22 Undisputed. Code §226.2 is applicable to the Plaintiffs claim. 23 Evidence: 24 Palay, Decl ^9; Exhibit 4 to Palay Deck, Response to RFA No. 5. 25 26 27 28 PLAINTIFF'S REPLY TO SEPARATE STATEMENT OF MATERIAL FACTS ISO PLAINTIFF'S MOTION FOR SUMMARY ADJUDICATION 1 Issue No. 2; Do the pay smbs provided to class members comply with Califomia Labor Code 2 §226(a)? 3 4 Plaintiffs Undisputed Materials Facts and Opposing Party's Response and Supporting Supporting Evidence Evidence 5 9. Plaintiff hereby incorporates UMF facts Defendant hereby incorporates its objections and evidence numbers 1 through 6, and 8. and responses to Plaintiffs UMF Nos. 1 6 through 6, and 8. 10. Each class member received wage Undisputed. 7 statements that are in the same format as 8 are attached as Exhibit " 1 " and which contained the same type of information. 9 Evidence: 10 Stipulation of Fact #10, Exhibit 1. 11 11. Defendant Primerims' practices for Undisputed. 12 creating wage statements was uniformly applied to all class members during the 13 stamtory period. The general format of the wage statements did not vary during the 14 class period. 15 Evidence: 16 Stipulation of Fact #10, Exhibit 1. 17 12. The wage statements do not contain the Disputed in part. While looking at the 18 number of piece-rate units earned and do "exemplar" wage statement attached to the not contain any applicable piece rate. Parties' Stipulation, it shows that Plaintiff 19 earned a total piece-rate amount of $775.00 Evidence: (which was labeled as "Commission" on the 20 Palay, Decl T|6, Exhibit 1 [see wage statements pay smb). (Given that each piece-rate (here, attached as Exhibit 1 to Exhibit 1. each point eamed) was worth $25.00, all 21 Plaintiff had to do to determine the number of 22 piece-rate unites eamed was "simple math." Taking $775.00 and dividing it by $25.00 yields 23 31 - meaning Plaintiff eamed 31 points (or piece-rate units) during this particular pay 24 period. (See Raines v. Coastal Pac. Food Distribs., Inc. (2018) 23 Cal.App.5th 667, 677 25 ["[t]he mathematical operation required is 26 division, which is taught in grade school. Although many people cannot perform the 27 calculation in their heads, it can be easily performed by use of a pencil and paper or a 28 PLAINTIFF'S REPLY TO SEPARATE STATEMENT OF MATERIAL FACTS ISO PLAINTIFF'S MOTION FOR SUMMARY ADJUDICATION Plaintiffs Undisputed Materials Facts and Opposing Party's Response and Supporting 1 Supporting Evidence Evidence 2 calculator; no additional documents or information are necessary"].) 3 Plaintiffs Response: 4 5 Defendant cannot dispute that the wage statements do not list the number of pieces as 6 required by law. Rather, it contends that by showing the piece rate amount "labeled as 7 'Commission' on the pay smb, the Plaintiff (and apparently each class member) could 8 simply perform what it refers to as "simple 9 math to determine the number of piece rate units." This is argument and not a legitimate 10 dispute of the fact alleged. Further, such an argument isflawedfor three basic reasons. 11 12 First, it does not dispute the fact that the number of piece rate units is not on the paysmbs as 13 required by Califomia Labor Code §226. In fact, according to the Defendant, the total 14 amount paid for piece rates is listed under "commissions". 15 16 Second, there is simply no evidence, declaratory or otherwise provided to support 17 Defendant's indication that the fact is in dispute. In such a simation, the court is neither 18 permitted to act sua sponte nor solely upon the basis of argument in its determination as to 19 whether the Defendant has supplied evidence to 20 dispute the alleged fact. Here, the court shall consider all of the evidence set forth in the 21 papers, ... and all inferences reasonably deducible from the evidence (§ 437c, subd. 22 (c), italics added.) Section 437c also provides 23 that moving party ... may not rely upon the mere allegations or denials of its pleadings to show 24 ... a triable issue of material fact exists but, instead, shall set forth the specific facts 25 showing that a triable issue of material fact exists...." (M, subd. (o)(2).) 26 "The stamte itself thus implies the 27 corresponding need for concrete evidence from the party and expressly requires the party to 28 PLAINTIFF'S REPLY TO SEPARATE STATEMENT OF MATERIAL FACTS ISO PLAINTIFF'S MOTION FOR SUMMARY ADJUDICATION Plaintiffs Undisputed Materials Facts and Opposing Party's Response and Supporting 1 Supporting Evidence Evidence 2 supply more than the bare assertion, whether alleged in a pleading or by way of argument." 3 Scheiding v. Dinwiddie Const Co., 69 Cal. App. 4th 64, 75-76, 81 Cal. Rptr. 2d 360, 367 4 (1999) 5 6 Third, such a contention that "simple math" would solve the problem is unsupported by 7 evidence and does not shield the Defendant from liability. "The purpose of the requirement 8 is that employees need not engage in the 9 discovery and mathematical computations to analyze the very information that Califomia 10 law requires. 11 Wang V. Chinese Daily News, Inc^, 435 F. Supp. 12 2d 1042, 1051 (CD. Cal. 2006), affd, 623 F.3d 743 (9th Cir. 2010), [(explaining that Section 13 226 is violated i f employees are required to perform "arithmetic computations" ] 14 Here, even assuming simple math could be 15 used, the employee would have to understand 16 that by "Commissions", the Employer really meant "Piece Rate" and there is no way for the 17 employee to determine exactly how many "pieces" were completed, no way to check the 18 math, and no way to determine if the overtime was paid correctly for the piece rate without 19 engaging in discovery of the information and 20 complicated mathematics. In fact, the Plaintiff testified that he had to request the formula from 21 the Defendants to attempt to calculate the wages and he kept coming up with differing 22 amounts. [Plaintiff s deposition 150:5-25]. 23 13. The Defendant admits that the Plaintiff did Undisputed. not sell any services or property on behalf 24 of the Defendant and was not paid "commission wages" as that term is 25 defined in Califomia Labor Code §204.1 ["Commission wages are compensation 26 paid to any person for services rendered in 27 the sale of such employer's property or 28 11 PLAINTIFF'S REPLY TO SEPARATE STATEMENT OF MATERIAL FACTS ISO PLAINTIFF'S MOTION FOR SUMMARY ADJUDICATION Plaintiffs Undisputed Materials Facts and Opposing Party's Response and Supporting 1 Supporting Evidence Evidence 2 services and based proportionately upon the amount of value thereof"] 3 Evidence: 4 Palay, Decl ^9, Exhibit 4 to Palay Deck, Response to RFA Nos. 3 and 4 5 6 7 Issue No. 3: Does the failure to pay the class at least the minimum wage for rest periods, entifle 8 each class member to one additional hour of pay at the employee's regular rate of compensation for each 9 workday that the rest period was not paid at the minimum wage pursuant to Califomia Labor Code 10 §226.7? 11 Plaintiffs Undisputed Materials Facts and Opposing Party's Response and Supporting 12 Supporting Evidence Evidence 14. Plaintiff hereby incorporates UMF facts Defendant hereby incorporates its objections 13 and evidence numbers one through and responses to Plaintiffs UMF Nos. 1 14 thirteen. through 13. 15 ADDITIONAL UNDISPUTED MATERIAL FACTS OFFERED BY DEFENDANT 16 17 Defendant's Undisputed Materials Facts and Plaintiffs Response and Supporting Supporting Evidence Evidence 18 15. Plaintiff concedes that, with the exception Undisputed but irrelevant. 19 of one time regarding a dispute with Primerims over a deduction of his piece- 20 rate pay, he was not aware of a time when the points he eamed did not match the 21 commission amount on his wage statement. 22 Declaration of Nathaniel Jenkins in 23 Support of Defendant's Opposition to 24 Plaintiffs Motion for Summary Adjudication ("Jenkins Deck"), Exhibit 1 25 (Plaintiffs Depo.) at 149:4-25; 150:1-4 16. Plaintiff concedes that his wage statements Objection and Disputed. Defendant misstates 26 accurately reflected what Primerims paid the deposition testimony of the Plaintiff as he 27 him. never conceded the wage statement was accurate. That actoal testimony is as follows: 28 12 PLAINTIFF'S REPLY TO SEPARATE STATEMENT OF MATERIAL FACTS ISO PLAINTIFF'S MOTION FOR SUMMARY ADJUDICATION Defendant's Undisputed Materials Facts and Plaintiffs Response and Supporting 1 Supporting Evidence Evidence 2 Jenkins Deck, Exhibit 1, Pltf's Depo. at "Q. Yes. This is a wage statement we looked 151:18-25. at earlier. Is there anything on this wage 3 statement that inaccurately reflects what you were paid on that particular pay period?" 4 "MR. GUTIERREZ: If you know. THE WITNESS: Well, I would say - I would 5 say I don't know. The commission rate and the 6 overtime on commission, I'm taking at faith because it's not broken down." [Plaintiffs depo 7 at 148:20-149:3][Exhibit "A" attached to the Declaration of Daniel J. Palay].. 8 9 17. Plaintiff and the Skip Tracers would keep Undisputed but irrelevant. track of their successfiil vehicle recoveries 10 and denote the points they eamed for each recovery on a document labeled a 11 "commission sheet." 12 Jenkins Deck, Exhibit 1, Pltfs Depo. at 13 149:13- 20; Defendant's Request for Judicial Notice ("RJN"), Docket No. 77, 14 Compendium of Evidence ("COE"), Exhibit 3, McGinness Decl. at H 7 15 18. The Skip Tracers would provide this Undisputed but irrelevant. 16 commission sheet to Primerims and sign off on its accuracy before it was provided 17 to Primerims' payroll department to be calculated into the Skip Tracers' paycheck. 18 Jenkins Deck, Exhibit 1, Pltfs Depo. at 19 149:13- 20; Defendant's RJN, Docket No. 20 77, COE, Exhibit 3, McGinness Decl. at ^ 7 21 19. Primerims retained the commission sheets Undisputed but irrelevant. denoting the points for each Skip Tracer. 22 23 Defendant's RJN, Docket No. 77, COE, Exhibit 3, McGinness Decl. at ^ 7 24 25 /// 26 /// 27 28 13 PLAINTIFF'S REPLY TO SEPARATE STATEMENT OF MATERIAL FACTS ISO PLAINTIFF'S MOTION FOR SUMMARY ADJUDICATION 1 Respectfully submitted Dated : Sept. 3, 2020 HATHAWAY PERRETT WEBSTER POWERS 2 CHRISMAN & GUTIERREZ, APC 3 4 By: Alejandro P. Gutierrez 5 Attomeys for Plaintiffs JOHN 6 BOUDREAU and the Certified Class 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14 PLAINTIFF'S REPLY TO SEPARATE STATEMENT OF MATERIAL FACTS ISO PLAINTIFF'S MOTION FOR SUMMARY ADJUDICATION PROOF OF S E R V I C E 1 2 I am employed in the County of Ventura, State of Califomia. I am over the age of eighteen (18) years and not a party to the within action. My business address is 5450 Telegraph 3 Road, Suite 200, Ventura, Califomia 93003. 4 On the date below, I caused to be served, the foregoing document PLAINTIFF'S REPLY TO 5 SEPARATE STATEMENT OF MATERIAL FACTS IN SUPPORT OF PLAINTIFF'S MOTION FOR SUMMARY ADJUDICATION on the interested parties in said action by placing the true 6 copies thereof enclosed in sealed envelopes addressed as follows: 7 Keith A. Jacoby Attorneys for Defendants, Primeritus 8 Bradley E. Schwan Littler Mendelson, PC Financial Services and Chris 9 McGinness 2049 Cenmry Park East, 5*^ Floor 10 Los Angeles, CA 90067-3107 Tel: (310) 553-0308 / Fax: (310) 553-5583 11 kjacoby@littler.com/bschwan@littler.com 12 Nathaniel H. Jenkins Littler Mendelson, PC 13 500 Capitol Mall, Suite 2000 14 Sacramento, CA 95814 Tel: (916) 830-7200 / Fax: (916) 561-0828 15 njenkins@littler.com 16 [ ] BY MAIL: By placing a tme copy thereof enclosed in a sealed envelope addressed to 17 the addressee(s) listed above. I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing. Under that practice, it would be deposited 18 with the U.S. Postal Service on that same date with postage thereon fully prepaid at Venmra, Califomia, in the ordinary course of business. I am aware that on motion of the 19 party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. 20 21 [X] (ELECTRONIC MAIL) from _@hathawaylawfirm.com and addressed to the above person(s)/entity(ies) 22 I declare under penalty of perjury under the laws of the State of Califomia that the 23 foregoing is true and correct. Executed on September 4, 2020Ventura, California. 24 25 26 Edna Byerly 27 28 15 PLAINTIFF'S REPLY TO SEPARATE STATEMENT OF MATERIAL FACTS ISO PLAINTIFF'S MOTION FOR SUMMARY ADJUDICATION