Preview
ORIGINAL
PATRICIA A. SAVAGE, SBN 236235
E. RYAN LAMB, SBN 266850
SAVAGE, LAMB, & REIMER, LLC
1550 Humboldt Road, Suite 4
Chico, CA 95928
FILED/ENDORSCD
Telephone: (530) 592-3861
Fax: (530) 592-3865 JUN 14 2023
Attorneys for Plaintiff, By: E. Macdonald
Deputy Clerk
JAY ROBINSON and
HUGO PINEDA, individually and on
behalf of all others similarly situated
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SACRAMENTO
JAY ROBINSON and Case No. 34-2019-00262942
HUGO PINEDA, individually and on behalf of
all others similarly situated, PLAINTIFF’S JAY ROBINSON AND
14 HUGO PINEDA’S SEPARATE
15 Plaintiffs, STATEMENT OF UNDISPUTED
MATERIAL FACTS IN SUPPORT OF
16 V. PLAINTIFF’S MOTION FOR
SUMMARY JUDGMENT AS TO
17 ASOMEO ENVIRONMENTAL PLAINTIFF’S 474, 574, AND 774 CAUSES
18 RESTORATION INDUSTRY, LLC, a OF ACTION ALLEGED IN THE
California Corporation and SECOND AMENDED COMPLAINT, OR
19 PHILLIPS & JORDAN INC. a North Carolina IN THE ALTERNATIVE, SUMMARY
Corporation and ADJUDICATION AS TO PLAINTIFF’S
20 DOES 1-10, 4TH, 5TH, AND 77 CAUSES OF ACTION
21 ALLEGED IN THE SECOND AMENDED
Defendants. COMPLAINT
2
[Filed concurrently with the Notice of Motion;
23 Memorandum of Points and Authorities;
24 Appendix of Evidence; Proposed Order]
25 Date: August 29, 2023
Time: 9:00 a.m.
26 Dept.: 54
27 Judge: Hon. Christopher E. Krueger
28 Action Filed: August 16, 2019
Trial: No Date Set
PLAINTIFF’S JAY ROBINSON AND HUGO PINEDA’S SEPARATE STATEMENT OF UNDISPUTED
MATERIAL FACTS IN SUPPORT OF PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AS TO
PLAINTIFF’S 4TH, 5TH, AND 7TH CAUSES OF ACTION ALLEGED IN THE SECOND AMENDED
COMPLAINT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION AS TO PLAINTIFF'S 4TH, 5TH,
AND 7TH CAUSES OF ACTION ALLEGED IN THE SECOND AMENDED COMPLAINT - 1
Plaintiff's Jay Robinson and Huge Pineda (collectively referred to as “Plaintiffs”’) in the
above-entitled action submits the following undisputed material facts pursuant to California Code
of Civil Procedure § 437c(b)(1) in support of Plaintiff's Motion for Summary Judgment, or in the
alternative, Summary Adjudication.
ISSUE 1
FOURTH CAUSE OF ACTION FOR VIOLATIONS OF LABOR CODE § 512
Failure to Provide Meal Periods, or Premium Pay in Lieu Thereof
Moving Party’s Undisputed Material Facts and Opposing Party’s Response and Supporting
Supporting Evidence: Evidence:
10 1, Defendant has no defense to the causes of
action alleged in this proceeding.
11
“A party may move for summary judgment in
12 any action or proceeding if it is contended that
the action has no merit or there is no defense
13 to the action or proceeding.” Cal. Civ. Proc.
Code § 437c(a)(1) (emphasis added).
14
No employee meal periods were recorded as
15 being clocked in or out.
16 Wage statements provided by Defendant
demonstrate that no meal periods were taken
17 or recorded during the course of Plaintiff's
employment. See, AERI Sample Documents,
18 set 2, pg. 3, 11, 15, 19, 22, 27, 31, 35, 39, 43,
47, 51.
19
Defendant had no system in place ensuring
20 compliance with meal requirements.
21 “T was also involved in a lot of the briefings to
the employees that told them they needed to
22 do these things in order to — in order to meet
these requirements, but there is simply no way
23 to know when you have employees spread
over a very, very wide geographic area, you
24 have to trust that when you tell them it is
company policy to take your breaks and to not
25 skip your breaks they won’t, that —- you can’t
have a supervisor with every single crew all
26 the time without quintupling the price of the
work to be done, making it unaffordable. See,
27 Deposition of Lawrence Kahn, pg. 88, In. 24-
pg 89, In. 14.
28
PLAINTIFF’S JAY ROBINSON AND HUGO PINEDA’S SEPARATE STATEMENT OF UNDISPUTED
MATERIAL FACTS IN SUPPORT OF PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AS TO
PLAINTIFF’S 4TH, STH, AND 7TH CAUSES OF ACTION ALLEGED IN THE SECOND AMENDED
COMPLAINT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION AS TO PLAINTIFF’S 4TH, 5TH,
AND 7TH CAUSES OF ACTION ALLEGED IN THE SECOND AMENDED COMPLAINT - 2
4. Employees began work at 7 AM, and
eventually 6:30 AM, and did not take a lunch
break until Noon, being five (5), and
eventually five- and one-half (5.5), hours after
employees began working.
“The answer is — the answer is approximately
the noon hour, That’s what’s required...At the
time I believe that — due to daylight savings
and daylight issues, I believe they started at
around 7:00 a.m. at that period in time;
however, once daylight savings ended and it
became light earlier in the day, I think it
shifted to 6:30 at some point.” See,
Declaration of Lawrence Khan, pg. 79 \n. 25-
pg. 80 In. 1, and pg. 81 In, 22-25.
5. Plaintiffs were made to work for a period in
10 excess of five (5) hours without the ability to
take a meal period.
11
“An employer may not employ an employee
12 for a work period of more than five hours per
day without providing the employee with a
13 meal period of not less than 30 minutes.” Cal.
Lab, Code § 512(a). Plaintiffs wage statements
14 indicated that a period of twelve (12) hour
elapsed between “clock in” and “clock out”
15 periods without a meal period. See, AERI
Sample Documents, Set 1, pg. 2, 5, 8, 12.
16 6. Plaintiffs’ failure to take required meal periods
causes health and safety concerns due to a lack
17 of rest.
18 Statutes governing conditions of employment
are to be construed broadly in favor of
19 protecting employees. See, Murphy v. Kenneth
Cole Prods., Inc., 40 Cal. 4th 1094, 1095, 56
20 Cal. Rptr. 3d 880, 883, 155 P.3d 284, 287
(2007). Plaintiffs were required to work a
21 period of twelve (12) hours during which no
meal periods were recorded. See, AERI
22 Sample Documents, Set 1, pg. 2, 5, 8, 12.
7. Plaintiffs were required to work through their
23 lawfully required meal period.
24 By law, remaining on duty for the benefit of
one's employer is compensable work
25 (Industrial Wage Commission wage order No.
4-2001, § 11(A) (Cal. Code Regs., tit. 8, §
26 11040, § 11(A))). Wage statements provided
by Defendant indicate that Plaintiffs were
27 required to clock in at 6:00 AM and did not
clock out until 5:30 PM, a period of twelve
28 (12) hours later. See, AER] Sample
Documents, Set 1, pg. 2, 5, 8, 12.
PLAINTIFF’S JAY ROBINSON AND HUGO PINEDA’S SEPARATE STATEMENT OF UNDISPUTED
MATERIAL FACTS IN SUPPORT OF PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AS TO
PLAINTIFF’S 4TH, 5TH, AND 7TH CAUSES OF ACTION ALLEGED IN THE SECOND AMENDED
COMPLAINT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION AS TO PLAINTIFF’S 4TH, 5TH,
AND 7TH CAUSES OF ACTION ALLEGED IN THE SECOND AMENDED COMPLAINT - 3
ISSUE 2
FIFTH CAUSE OF ACTION FOR VIOLATION OF LABOR CODE § 226.7
Failure to Provide Rest Periods, or Premium Pay in Lieu Thereof
Moving Party’s Undisputed Material Facts and Opposing Party’s Response and Supporting
Supporting Evidence: Evidence:
1. Defendant has no defense to the causes of
action alleged in this proceeding.
“A party may move for summary judgment in
any action or proceeding if it is contended that
the action has no merit or there is no defense
to the action or proceeding.” Cal. Civ. Proc.
Code § 437c(a)(1) (emphasis added).
10 2. No employee rest periods were provided by
Defendant AERI.
11
Wage statements provided by Defendant
12 indicate that no rest periods were provided
during Plaintiffs employment. See, AER/
13 Sample Employee Documents, Sets 1, pg. 2, 5,
8, 12.
14
3. Defendant had no system in place ensuring
15 compliance with rest requirements.
16 “T was also involved in a lot of the briefings to
the employees that told them they needed to
17 do these things in order to — in order to meet
these requirements, but there is simply no way
18 to know when you have employees spread
over a very, very wide geographic area, you
19 have to trust that when you tell them it is
company policy to take your breaks and to not
20 skip your breaks they won’t, that — you can’t
have a supervisor with every single crew all
21 the time without quintupling the price of the
work to be done, making it unaffordable. See,
22 Deposition of Lawrence Kahn, pg. 88, In. 24-
pg 89, In. 14.
23
4. Plaintiffs were required to work through their
24 lawfully required rest period.
25 By law, remaining on duty for the benefit of
one's employer is compensable work
26 (Industrial Wage Commission wage order No.
4-2001, § 11(A) (Cal. Code Regs., tit. 8, §
27 11040, § 11(A))). Wage statements provided
by Defendant indicate that no meal or rest
28 periods were taken between when Plaintiffs
clocked in at or around 6:00 AM and clocked
out at or around 6:30 PM. See, AER/ Sample
Employee Documents, Set 1, pg. 2, 5, 8, 12.
PLAINTIFF’S JAY ROBINSON AND HUGO PINEDA’S SEPARATE STATEMENT OF UNDISPUTED
MATERIAL FACTS IN SUPPORT OF PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AS TO
PLAINTIFF’S 4TH, 5TH, AND 7TH CAUSES OF ACTION ALLEGED IN THE SECOND AMENDED
COMPLAINT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION AS TO PLAINTIFF’S 4TH, STH,
AND 7TH CAUSES OF ACTION ALLEGED IN THE SECOND AMENDED COMPLAINT - 4
ISSUE 3
SEVENTH CAUSE OF ACTION FOR VIOLATION OF LABOR CODE § 226
Failure to Maintain Accurate Wage Statements
Moving Party’s Undisputed Material Facts and Opposing Party’s Response and Supporting
Supporting Evidence: Evidence:
1. Defendant has no defense to the causes of
action alleged in this proceeding.
“A party may move for summary judgment in
any action or proceeding if it is contended that
the action has no merit or there is no defense
to the action or proceeding.” Cal. Civ. Proc.
Code § 437c(a)(1) (emphasis added).
10
2. Employee wage statements did not accurately
11 reflect true clock in or clock out times,
including for meal and rest periods, as
12 required by law.
13 See, AERI Sample Documents, Set 2, pg. 3,
11, 15, 19, 22, 27, 31, 35, 39, 43, 47, 51.
14
3. Defendant failed to maintain accurate wage
15 statements.
16 Plaintiffs wage statements do not indicate any
additional compensation was provided for
17 unrecorded meal and rest periods as required
by state law. See, AERJ Sample Documents,
18 Set 3, pg. 25, 33, 49, 53, 61, 65, 69, 73, 81, 85,
89, 93, 97.
4. Wage statements failed to record meal and rest
periods, and the subsequent mandatory
20 premium pay in lieu thereof was not recorded
in the wage statement, rendering the wage
21 statements inaccurate.
22 Lab. Code, § 226, does not require employers
to report only those amounts it deigns to pay;
23 rather, it requires an employer to accompany
each payment of wages with an accurate
24 itemized statement specifying, among other
details, the gross wages earned, and net wages
25 earned — in other words, all amounts earned
and now owing, not just those amounts
26 actually paid. § 226, subd. (a). A statement
that conceals amounts earned, on the ground
27 that they also were not paid, is not an accurate
statement, and it does not comply with the
28 statute. See, Naranjo v. Spectrum Sec. Servs.,
Inc., 13 Cal. 5th 93, 93, 509 P.3d 956, 958
(2022).
PLAINTIFF’S JAY ROBINSON AND HUGO PINEDA’S SEPARATE STATEMENT OF UNDISPUTED
MATERIAL FACTS IN SUPPORT OF PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AS TO
PLAINTIFF’S 4TH, 5TH, AND 7TH CAUSES OF ACTION ALLEGED IN THE SECOND AMENDED
COMPLAINT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION AS TO PLAINTIFF’S 4TH, STH,
AND 7TH CAUSES OF ACTION ALLEGED IN THE SECOND AMENDED COMPLAINT - 5
See, AERI Sample Documents, Set 1, pg. 2, 5,
8, 12, 16, 20, and Set 2, pg. 3, 11, 15, 19, 22,
27, 31, 35, 39, 43, 47, 51.
5. Plaintiffs were not credited one additional
hour of pay for which a lawful break is not
provided.
Lab. Code, § 226.7, requires an employer to
pay one additional hour of pay for each day in
which a lawful break is not provided. § 226.7,
subd. (c). In that situation, both that additional
credited hour of work and the corresponding
premium pay owed must be reported on the
wage statement. Failure to do so deprives the
employee of information needed to evaluate
whether the payment is correct, and in so
doing results in injury under the terms of the
10 statute. § 226, subd. (e)(2)(B). See, Naranjo v.
Spectrum Sec. Servs., Inc., 13 Cal. Sth 93, 93,
11 509 P.3d 956, 958 (2022).
12 See, AERI Sample Documents, Set 1, pg. 2, 5,
8, 12, 16, 20, and Set 2, pg. 3, 11, 15, 19, 22,
13 27, 31, 35, 39, 43, 47, 51.
14 6. Employee documents propounded by
Defendant do not show that required meal
15 breaks were taken and are therefore inaccurate
under the provisions of Lab. Code § 226.
16
See, AERI Sample Documents, Set 2, pg. 3,
17 11, 15, 19, 22, 27, 31, 35, 39, 43, 47, 51.
18
19
20
21
Date: June 12, 2023 SAVAGE, LAMB, & REIMER, LLP
22
23
24
25 Patricia A. Savage
Attorney for Plaintiff
26 Jay Robinson
Hugo Pineda
27
28
PLAINTIFF’S JAY ROBINSON AND HUGO PINEDA’S SEPARATE STATEMENT OF UNDISPUTED
MATERIAL FACTS IN SUPPORT OF PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AS TO
PLAINTIFF’S 4TH, 5TH, AND 7TH CAUSES OF ACTION ALLEGED IN THE SECOND AMENDED
COMPLAINT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION AS TO PLAINTIFF’S 4TH, 5TH,
AND 7TH CAUSES OF ACTION ALLEGED IN THE SECOND AMENDED COMPLAINT - 6
Preview
ORIGINAL PATRICIA A. SAVAGE, SBN 236235 E. RYAN LAMB, SBN 266850 SAVAGE, LAMB, & REIMER, LLC 1550 Humboldt Road, Suite 4 Chico, CA 95928 FILED/ENDORSCD Telephone: (530) 592-3861 Fax: (530) 592-3865 JUN 14 2023 Attorneys for Plaintiff, By: E. Macdonald Deputy Clerk JAY ROBINSON and HUGO PINEDA, individually and on behalf of all others similarly situated SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SACRAMENTO JAY ROBINSON and Case No. 34-2019-00262942 HUGO PINEDA, individually and on behalf of all others similarly situated, PLAINTIFF’S JAY ROBINSON AND 14 HUGO PINEDA’S SEPARATE 15 Plaintiffs, STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF 16 V. PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AS TO 17 ASOMEO ENVIRONMENTAL PLAINTIFF’S 474, 574, AND 774 CAUSES 18 RESTORATION INDUSTRY, LLC, a OF ACTION ALLEGED IN THE California Corporation and SECOND AMENDED COMPLAINT, OR 19 PHILLIPS & JORDAN INC. a North Carolina IN THE ALTERNATIVE, SUMMARY Corporation and ADJUDICATION AS TO PLAINTIFF’S 20 DOES 1-10, 4TH, 5TH, AND 77 CAUSES OF ACTION 21 ALLEGED IN THE SECOND AMENDED Defendants. COMPLAINT 2 [Filed concurrently with the Notice of Motion; 23 Memorandum of Points and Authorities; 24 Appendix of Evidence; Proposed Order] 25 Date: August 29, 2023 Time: 9:00 a.m. 26 Dept.: 54 27 Judge: Hon. Christopher E. Krueger 28 Action Filed: August 16, 2019 Trial: No Date Set PLAINTIFF’S JAY ROBINSON AND HUGO PINEDA’S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AS TO PLAINTIFF’S 4TH, 5TH, AND 7TH CAUSES OF ACTION ALLEGED IN THE SECOND AMENDED COMPLAINT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION AS TO PLAINTIFF'S 4TH, 5TH, AND 7TH CAUSES OF ACTION ALLEGED IN THE SECOND AMENDED COMPLAINT - 1 Plaintiff's Jay Robinson and Huge Pineda (collectively referred to as “Plaintiffs”’) in the above-entitled action submits the following undisputed material facts pursuant to California Code of Civil Procedure § 437c(b)(1) in support of Plaintiff's Motion for Summary Judgment, or in the alternative, Summary Adjudication. ISSUE 1 FOURTH CAUSE OF ACTION FOR VIOLATIONS OF LABOR CODE § 512 Failure to Provide Meal Periods, or Premium Pay in Lieu Thereof Moving Party’s Undisputed Material Facts and Opposing Party’s Response and Supporting Supporting Evidence: Evidence: 10 1, Defendant has no defense to the causes of action alleged in this proceeding. 11 “A party may move for summary judgment in 12 any action or proceeding if it is contended that the action has no merit or there is no defense 13 to the action or proceeding.” Cal. Civ. Proc. Code § 437c(a)(1) (emphasis added). 14 No employee meal periods were recorded as 15 being clocked in or out. 16 Wage statements provided by Defendant demonstrate that no meal periods were taken 17 or recorded during the course of Plaintiff's employment. See, AERI Sample Documents, 18 set 2, pg. 3, 11, 15, 19, 22, 27, 31, 35, 39, 43, 47, 51. 19 Defendant had no system in place ensuring 20 compliance with meal requirements. 21 “T was also involved in a lot of the briefings to the employees that told them they needed to 22 do these things in order to — in order to meet these requirements, but there is simply no way 23 to know when you have employees spread over a very, very wide geographic area, you 24 have to trust that when you tell them it is company policy to take your breaks and to not 25 skip your breaks they won’t, that —- you can’t have a supervisor with every single crew all 26 the time without quintupling the price of the work to be done, making it unaffordable. See, 27 Deposition of Lawrence Kahn, pg. 88, In. 24- pg 89, In. 14. 28 PLAINTIFF’S JAY ROBINSON AND HUGO PINEDA’S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AS TO PLAINTIFF’S 4TH, STH, AND 7TH CAUSES OF ACTION ALLEGED IN THE SECOND AMENDED COMPLAINT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION AS TO PLAINTIFF’S 4TH, 5TH, AND 7TH CAUSES OF ACTION ALLEGED IN THE SECOND AMENDED COMPLAINT - 2 4. Employees began work at 7 AM, and eventually 6:30 AM, and did not take a lunch break until Noon, being five (5), and eventually five- and one-half (5.5), hours after employees began working. “The answer is — the answer is approximately the noon hour, That’s what’s required...At the time I believe that — due to daylight savings and daylight issues, I believe they started at around 7:00 a.m. at that period in time; however, once daylight savings ended and it became light earlier in the day, I think it shifted to 6:30 at some point.” See, Declaration of Lawrence Khan, pg. 79 \n. 25- pg. 80 In. 1, and pg. 81 In, 22-25. 5. Plaintiffs were made to work for a period in 10 excess of five (5) hours without the ability to take a meal period. 11 “An employer may not employ an employee 12 for a work period of more than five hours per day without providing the employee with a 13 meal period of not less than 30 minutes.” Cal. Lab, Code § 512(a). Plaintiffs wage statements 14 indicated that a period of twelve (12) hour elapsed between “clock in” and “clock out” 15 periods without a meal period. See, AERI Sample Documents, Set 1, pg. 2, 5, 8, 12. 16 6. Plaintiffs’ failure to take required meal periods causes health and safety concerns due to a lack 17 of rest. 18 Statutes governing conditions of employment are to be construed broadly in favor of 19 protecting employees. See, Murphy v. Kenneth Cole Prods., Inc., 40 Cal. 4th 1094, 1095, 56 20 Cal. Rptr. 3d 880, 883, 155 P.3d 284, 287 (2007). Plaintiffs were required to work a 21 period of twelve (12) hours during which no meal periods were recorded. See, AERI 22 Sample Documents, Set 1, pg. 2, 5, 8, 12. 7. Plaintiffs were required to work through their 23 lawfully required meal period. 24 By law, remaining on duty for the benefit of one's employer is compensable work 25 (Industrial Wage Commission wage order No. 4-2001, § 11(A) (Cal. Code Regs., tit. 8, § 26 11040, § 11(A))). Wage statements provided by Defendant indicate that Plaintiffs were 27 required to clock in at 6:00 AM and did not clock out until 5:30 PM, a period of twelve 28 (12) hours later. See, AER] Sample Documents, Set 1, pg. 2, 5, 8, 12. PLAINTIFF’S JAY ROBINSON AND HUGO PINEDA’S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AS TO PLAINTIFF’S 4TH, 5TH, AND 7TH CAUSES OF ACTION ALLEGED IN THE SECOND AMENDED COMPLAINT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION AS TO PLAINTIFF’S 4TH, 5TH, AND 7TH CAUSES OF ACTION ALLEGED IN THE SECOND AMENDED COMPLAINT - 3 ISSUE 2 FIFTH CAUSE OF ACTION FOR VIOLATION OF LABOR CODE § 226.7 Failure to Provide Rest Periods, or Premium Pay in Lieu Thereof Moving Party’s Undisputed Material Facts and Opposing Party’s Response and Supporting Supporting Evidence: Evidence: 1. Defendant has no defense to the causes of action alleged in this proceeding. “A party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or there is no defense to the action or proceeding.” Cal. Civ. Proc. Code § 437c(a)(1) (emphasis added). 10 2. No employee rest periods were provided by Defendant AERI. 11 Wage statements provided by Defendant 12 indicate that no rest periods were provided during Plaintiffs employment. See, AER/ 13 Sample Employee Documents, Sets 1, pg. 2, 5, 8, 12. 14 3. Defendant had no system in place ensuring 15 compliance with rest requirements. 16 “T was also involved in a lot of the briefings to the employees that told them they needed to 17 do these things in order to — in order to meet these requirements, but there is simply no way 18 to know when you have employees spread over a very, very wide geographic area, you 19 have to trust that when you tell them it is company policy to take your breaks and to not 20 skip your breaks they won’t, that — you can’t have a supervisor with every single crew all 21 the time without quintupling the price of the work to be done, making it unaffordable. See, 22 Deposition of Lawrence Kahn, pg. 88, In. 24- pg 89, In. 14. 23 4. Plaintiffs were required to work through their 24 lawfully required rest period. 25 By law, remaining on duty for the benefit of one's employer is compensable work 26 (Industrial Wage Commission wage order No. 4-2001, § 11(A) (Cal. Code Regs., tit. 8, § 27 11040, § 11(A))). Wage statements provided by Defendant indicate that no meal or rest 28 periods were taken between when Plaintiffs clocked in at or around 6:00 AM and clocked out at or around 6:30 PM. See, AER/ Sample Employee Documents, Set 1, pg. 2, 5, 8, 12. PLAINTIFF’S JAY ROBINSON AND HUGO PINEDA’S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AS TO PLAINTIFF’S 4TH, 5TH, AND 7TH CAUSES OF ACTION ALLEGED IN THE SECOND AMENDED COMPLAINT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION AS TO PLAINTIFF’S 4TH, STH, AND 7TH CAUSES OF ACTION ALLEGED IN THE SECOND AMENDED COMPLAINT - 4 ISSUE 3 SEVENTH CAUSE OF ACTION FOR VIOLATION OF LABOR CODE § 226 Failure to Maintain Accurate Wage Statements Moving Party’s Undisputed Material Facts and Opposing Party’s Response and Supporting Supporting Evidence: Evidence: 1. Defendant has no defense to the causes of action alleged in this proceeding. “A party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or there is no defense to the action or proceeding.” Cal. Civ. Proc. Code § 437c(a)(1) (emphasis added). 10 2. Employee wage statements did not accurately 11 reflect true clock in or clock out times, including for meal and rest periods, as 12 required by law. 13 See, AERI Sample Documents, Set 2, pg. 3, 11, 15, 19, 22, 27, 31, 35, 39, 43, 47, 51. 14 3. Defendant failed to maintain accurate wage 15 statements. 16 Plaintiffs wage statements do not indicate any additional compensation was provided for 17 unrecorded meal and rest periods as required by state law. See, AERJ Sample Documents, 18 Set 3, pg. 25, 33, 49, 53, 61, 65, 69, 73, 81, 85, 89, 93, 97. 4. Wage statements failed to record meal and rest periods, and the subsequent mandatory 20 premium pay in lieu thereof was not recorded in the wage statement, rendering the wage 21 statements inaccurate. 22 Lab. Code, § 226, does not require employers to report only those amounts it deigns to pay; 23 rather, it requires an employer to accompany each payment of wages with an accurate 24 itemized statement specifying, among other details, the gross wages earned, and net wages 25 earned — in other words, all amounts earned and now owing, not just those amounts 26 actually paid. § 226, subd. (a). A statement that conceals amounts earned, on the ground 27 that they also were not paid, is not an accurate statement, and it does not comply with the 28 statute. See, Naranjo v. Spectrum Sec. Servs., Inc., 13 Cal. 5th 93, 93, 509 P.3d 956, 958 (2022). PLAINTIFF’S JAY ROBINSON AND HUGO PINEDA’S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AS TO PLAINTIFF’S 4TH, 5TH, AND 7TH CAUSES OF ACTION ALLEGED IN THE SECOND AMENDED COMPLAINT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION AS TO PLAINTIFF’S 4TH, STH, AND 7TH CAUSES OF ACTION ALLEGED IN THE SECOND AMENDED COMPLAINT - 5 See, AERI Sample Documents, Set 1, pg. 2, 5, 8, 12, 16, 20, and Set 2, pg. 3, 11, 15, 19, 22, 27, 31, 35, 39, 43, 47, 51. 5. Plaintiffs were not credited one additional hour of pay for which a lawful break is not provided. Lab. Code, § 226.7, requires an employer to pay one additional hour of pay for each day in which a lawful break is not provided. § 226.7, subd. (c). In that situation, both that additional credited hour of work and the corresponding premium pay owed must be reported on the wage statement. Failure to do so deprives the employee of information needed to evaluate whether the payment is correct, and in so doing results in injury under the terms of the 10 statute. § 226, subd. (e)(2)(B). See, Naranjo v. Spectrum Sec. Servs., Inc., 13 Cal. Sth 93, 93, 11 509 P.3d 956, 958 (2022). 12 See, AERI Sample Documents, Set 1, pg. 2, 5, 8, 12, 16, 20, and Set 2, pg. 3, 11, 15, 19, 22, 13 27, 31, 35, 39, 43, 47, 51. 14 6. Employee documents propounded by Defendant do not show that required meal 15 breaks were taken and are therefore inaccurate under the provisions of Lab. Code § 226. 16 See, AERI Sample Documents, Set 2, pg. 3, 17 11, 15, 19, 22, 27, 31, 35, 39, 43, 47, 51. 18 19 20 21 Date: June 12, 2023 SAVAGE, LAMB, & REIMER, LLP 22 23 24 25 Patricia A. Savage Attorney for Plaintiff 26 Jay Robinson Hugo Pineda 27 28 PLAINTIFF’S JAY ROBINSON AND HUGO PINEDA’S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AS TO PLAINTIFF’S 4TH, 5TH, AND 7TH CAUSES OF ACTION ALLEGED IN THE SECOND AMENDED COMPLAINT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION AS TO PLAINTIFF’S 4TH, 5TH, AND 7TH CAUSES OF ACTION ALLEGED IN THE SECOND AMENDED COMPLAINT - 6