Preview
Alejandro P. Gutierrez, SBN 107688
1 agutierrez@hathawaylawfirm.com
HATHAWAY, PERRETT, WEBSTER, POWERS,
2 CHRISMAN & GUTIERREZ, APC
5450 Telegraph Road, Suite 200
3 Ventura, CA 93006-3577
Telephone: (805) 644-7111
4 Facsimile: (805) 644-8296
5 Daniel J. Palay, SBN 159348
djp@calemploymentcounsel. com
6 Brian D. Hefelfinger, SBN 253054
bdh@calemploymentcounsel.com '/I
7 PALAY HEFELFINGER, APC
1746 S. Victoria Avenue, Suite 230 SEP - 3 2020
8 Ventura, California 93001
Tel: (805) 628-8220 By: A. Macias
9 Fax: (805) 765-8600 Deputy Clerk
10 Attorneys for Plaintiffs JOHN BOUDREA U
11 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 of CASE NO.: 34-2018-00247272
himself and all others similarly situated,
17 Complaintfiled:Dec. 27,2018
Plaintiffs, Assigned to Dept. 54
18
vs.
19 PRIMERITUS FINANCIAL SERVICES, INC., DECLARATION OF DANIEL J. PALAY
a Delaware Corporation; CHRIS IN SUPPORT OF REPLY TO
20 MCGUINNESS, an individual; and DOES 1 DEFENDANT'S OPPOSITION TO
21 through 10, inclusive. PLAINTIFF'S MOTION FOR
SUMMARY ADJUDICATION
22 Defendants.
23 RESERVATION #2517993
24 Date: Sept. 24,2020
Time: 9:00 a.m.
25 Dept: 54
26
27
28
1
DECLARATION OF DANIEL J. PALAY IN SUPPORT OF REPLY TO DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION
FOR SUMMARY ADJUDICATION
1 TO T H E COURT, A L L PARTIES AND T H E I R A T T O R N E Y S OF R E C O R D HEREIN:
2 I, DANIEL J. PALAY, hereby declare as follows:
3 1. I am an attorney at law admitted to practice before all courts of the State of California,
4 and am an attorney with the law firm of Palay Hefelfinger, APC. I am one of the attorneys of record for
5 Plaintiff John Boudreau and the certified class in the above-entitled case. If called as a witness, I
6 would and could competently testify hereto of my own personal knowledge.
7 2. I give this declaration in support of Plaintiffs Reply To Defendant's Opposition To
8 Plaintiffs Motion for Summary Adjudication.
9 3. On or about November 19, 2019, the deposition of the Plaintiff, John Boudreau, was
10 taken by Defendant's counsel. True and correct copies of excerpts fi-om pages 148 and 149 of his
11 deposition are attached hereto as Exhibit "A".
12 I declare under penalty of perjury under the laws of the State of California that the foregoing is
13 true and correct.
14 Dated on September 3, 2020 at Ventura, California.
15
16
DANIEL P. PALAY/
17 Attorneys for Plaintiff
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19
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DECLARATION OF DANIEL J. PALAY IN SUPPORT OF REPLY TO DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION
FOR SUMMARY ADJUDICATION
EXHIBIT A
Declaration of D. Palay
JOHN BOUDREAU - 11/19/2019
1 SUPERIOR COURT OF CALIFORNIA
2 COUNTY OF SACRAMENTO
3
4 JOHN BOUDREAU, AN INDIVIDUAL,
5 ON BEHALF OF HIMSELF AND ALL
6 OTHERS SIMILARLY SITUATED,
7 P l a i n t i f f (s),
8 V. Case No.
9 PRIMERITUS FINANCIAL SERVICES, 34-2018-00247272
10 INC., A DELAWARE CORPORATION;
11 CHRIS McGINNESS, AN INDIVIDUAL;
12 AND DOES 1 THROUGH 10, INCLUSIVE,
13 Defendant(s)
/
14
15
16 VIDEOTAPED DEPOSITION OF JOHN BOUDREAU
17 TUESDAY, NOVEMBER 19, 2 019
18
19
20 Reported by;
21 KAREN A. URBANO, CSR License No. 6698
22 Registered Professional Reporter
23 Job No: 3618506
24
25 PAGES 1 - 214
Page 1
Veritext Legal Solutions
866 299-5127
JOHN BOUDREAU - 11/19/2019
1 don't work overtime? 1 Q. BYMR. SCHWAN: So can you recall an instance
2 A. Yes. 2 where your wanted to work overtime and Primeritus
3 Q. Okay. Were there ever any other times where 3 prevented you or didn't allow you to do so?
4 they were telling you you could work overtime like in a 4 A. I can't recall.
5 specific pay period or specific time or on a specific 14:37:20 5 Q. Was there ever a time where you were 14:39:29
6 account, or were those kind of the only two regimes that 6 disciplined for working overtime?
7 we're talking about? 7 A. 1 don't believe so.
8 A. You could put in a Saturday, which would then 8 Q. Did you ever work double time hours, meaning in
9 make it overtime. 9 excess of 12 hours in any one day?
10 Q. And was that always available or sometimes 14:37:32 10 A. No, no. 14:39:47
11 available? 11 MR. SCHWAN: All right. Why don't we take a
12 A. It was - the time I was there, it was almost 12 break?
13 always ~ there were times that it would be blacked out 13 THE VIDEOGRAPHER: Going off record
14 where there weren't any Saturdays being worked. And 14 approximately 2:40.
15 then there were times where they were open every 14:37:45 15 (Whereupon a recess was taken.) 14:40:04
16 Saturday. 16 THE VIDEOGRAPHER: Back on record,
17 Q. And in those instances, did you accurately 17 approximately 3:03.
18 record all of the overtime that you worked? 18 Q. BY MR. SCHWAN: Can you pull up Exhibit 9.
19 A. I didn't--1 rarely worked a Saturday. I'd 19 A. Is that Bates 395?
20 put in a Saturday when 1 was busy. 14:37:59 20 Q. Yes. This is a wage statement we looked at : 15:03:28
21 Q. Well, I'm not just talking about Saturday. I'm 21 earlier. Is there anything on this .wage statement that
22 just talking about overtime generally now. 22 inaccurately reflects what .you were paid on that
23 In those instances when you worked overtime, 23 particular pay period?.
24 did you accurately record the time that you worked? 24 -MR, GUTIERREZ; tf you know.
25 A. Yes. 14:38:10 25 THEWITNESS: Well, I would s a y - I would say 15:03:44
Page 146 Page 148
1 Q. And did Primeritus pay you an additional amount 1 I don't kiiow. The comrriission rate.and the overtime on
2 and a premium on your commission for the times that you 2 coininission, I'm taking at faith because it's not broken
3 worked overtime? 3 down.
4 MR. GUTIERREZ: Calls for legal conclusion. 4 Q. BY MR. SCHWAN: Fair enough. But looking at
5 THEWITNESS: However that was calculated. 14:38:23 5 this wage statement right now, is there anything that 15:04:06
6 Q. BY MR. SCHWAN: Yes or no? 6 you can identify as being inaccurate?
7 Yes, however that — yes. 7 A. No.
8 Q. They paid you an additional amount over your $8 8 Q. Okay. And Primeritus provided you
9 base rate for overtime hours, correct? 9 documentation with respect to the points that you
10 A. Yes. 14:38:35 10 earned, or actually you submitted documentation with 15:04:29
11 Q. And then they paid you an additional amount in 11 respect to the points that you earned, correct?
12 a premium on your commission for the overtime hours that 12 MR. GUTIERREZ: Vague as phrased.
13 you worked, correct? 13 Q. BY MR. SCHWAN: Yeah, so let me rephrase that.
14 MR. GUTIERREZ: Calls for a legal conclusion. 14 You submitted documentation each pay period
15 THEWITNESS: Yes. 14:38:47 15 with respect to the points that you accumulated, 15:04:39
16 Q. BY MR. SCHWAN: Okay. Was there ever a time 16 cortect?
17 when you wanted to work overtime when Primeritus did not 17 A. Yes, we turned in commission sheets.
18 allow you to? 18 Q. And that was then reflected in your commission
19 MR. GUTIERREZ: Other than what he's testified 19 amount, correct?
20 to? 14:39:03 20 A. It should be, yes. 15:04:48
21 THEWITNESS: I can't think of--1 can't 21 Q. And are you aware of a time when the points did
22 think ~ as I said, when it was busy, it was busy. And 22 not match the commission amount that you expected for
23 there wasn't an issue with overtime. 23 any given pay period?
24 When it wasn't busy, then I had no interest in 24 A. Only the time when 1 was required to deduct
25 working overtime. 14:39:16 25 $200 from my check. 15 .05 .03
Page 147 Page 149
38 (Pages 146 - 149)
Veritext Legal Solutions
866 299-5127
PROOF OF SERVICE
I am employed in the County of Ventura, State of California. I am over the age of
eighteen (18) years and not a party to the within action. My business address is 5450
Telegraph Road, Suite 200, Ventura, California 93003.
On the date below, I caused to be served, the foregoing document
DECLARATION OF DANIEL J. PALAY IN SUPPORT OF REPLY TO
DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY
ADJUDICATION on the interested parties in said action by placing the true copies
thereof enclosed in sealed envelopes addressed as follows:
8 Keith A. Jacoby Attorneys for Defendants, Primeritus
Bradley E. Schwan
9 Financial Services
Littler Mendelson, PC
10 2049 Century Park East, 5*^ Floor
Los Angeles, CA 90067-3107
11 Tel: (310) 553-0308 / Fax: (310) 553-5583
kjacoby@littler.com/bschwan@littler.com
12
13 Nathaniel H. Jenkins
Littler Mendelson, PC
14 500 Capitol Mall, Suite 2000
Sacramento, CA 95814
15 Tel: (916) 830-7200 / Fax: (916) 561-0828
njenkins@littler.com
16
17 [ ] BY MAIL: By placing a true copy thereof enclosed in a sealed envelope addressed to
the addressee(s) listed above. I am "readily familiar" with the firm's practice of collection and
18 processing correspondence for mailing. Under that practice, it would be deposited with the U.S.
Postal Service on that same date with postage thereon fully prepaid at Ventura, California, in the
19 ordinary course of business. I am aware that on motion of the party served, service is presumed
20 invalid if postal cancellation date or postage meter date is more than one day after date of deposit
for mailing in affidavit.
21
[X] (ELECTRONIC MAIL) from _@hathawaylawfirm.com and addressed to the above
22 person(s)/entity(ies)
23
I declare under penalty of perjury under the laws of the State of California that the
24 foregoing is true and correct. Executed on Sept. 4, 2020 at Ventura, California.
25
26 Edna Byerly
27
28
DECLARATION OF DANIEL J. PALAY IN SUPPORT OF REPLY TO DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION
FOR SUMMARY ADJUDICATION
Preview
Alejandro P. Gutierrez, SBN 107688 1 agutierrez@hathawaylawfirm.com HATHAWAY, PERRETT, WEBSTER, POWERS, 2 CHRISMAN & GUTIERREZ, APC 5450 Telegraph Road, Suite 200 3 Ventura, CA 93006-3577 Telephone: (805) 644-7111 4 Facsimile: (805) 644-8296 5 Daniel J. Palay, SBN 159348 djp@calemploymentcounsel. com 6 Brian D. Hefelfinger, SBN 253054 bdh@calemploymentcounsel.com '/I 7 PALAY HEFELFINGER, APC 1746 S. Victoria Avenue, Suite 230 SEP - 3 2020 8 Ventura, California 93001 Tel: (805) 628-8220 By: A. Macias 9 Fax: (805) 765-8600 Deputy Clerk 10 Attorneys for Plaintiffs JOHN BOUDREA U 11 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 of CASE NO.: 34-2018-00247272 himself and all others similarly situated, 17 Complaintfiled:Dec. 27,2018 Plaintiffs, Assigned to Dept. 54 18 vs. 19 PRIMERITUS FINANCIAL SERVICES, INC., DECLARATION OF DANIEL J. PALAY a Delaware Corporation; CHRIS IN SUPPORT OF REPLY TO 20 MCGUINNESS, an individual; and DOES 1 DEFENDANT'S OPPOSITION TO 21 through 10, inclusive. PLAINTIFF'S MOTION FOR SUMMARY ADJUDICATION 22 Defendants. 23 RESERVATION #2517993 24 Date: Sept. 24,2020 Time: 9:00 a.m. 25 Dept: 54 26 27 28 1 DECLARATION OF DANIEL J. PALAY IN SUPPORT OF REPLY TO DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY ADJUDICATION 1 TO T H E COURT, A L L PARTIES AND T H E I R A T T O R N E Y S OF R E C O R D HEREIN: 2 I, DANIEL J. PALAY, hereby declare as follows: 3 1. I am an attorney at law admitted to practice before all courts of the State of California, 4 and am an attorney with the law firm of Palay Hefelfinger, APC. I am one of the attorneys of record for 5 Plaintiff John Boudreau and the certified class in the above-entitled case. If called as a witness, I 6 would and could competently testify hereto of my own personal knowledge. 7 2. I give this declaration in support of Plaintiffs Reply To Defendant's Opposition To 8 Plaintiffs Motion for Summary Adjudication. 9 3. On or about November 19, 2019, the deposition of the Plaintiff, John Boudreau, was 10 taken by Defendant's counsel. True and correct copies of excerpts fi-om pages 148 and 149 of his 11 deposition are attached hereto as Exhibit "A". 12 I declare under penalty of perjury under the laws of the State of California that the foregoing is 13 true and correct. 14 Dated on September 3, 2020 at Ventura, California. 15 16 DANIEL P. PALAY/ 17 Attorneys for Plaintiff 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF DANIEL J. PALAY IN SUPPORT OF REPLY TO DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY ADJUDICATION EXHIBIT A Declaration of D. Palay JOHN BOUDREAU - 11/19/2019 1 SUPERIOR COURT OF CALIFORNIA 2 COUNTY OF SACRAMENTO 3 4 JOHN BOUDREAU, AN INDIVIDUAL, 5 ON BEHALF OF HIMSELF AND ALL 6 OTHERS SIMILARLY SITUATED, 7 P l a i n t i f f (s), 8 V. Case No. 9 PRIMERITUS FINANCIAL SERVICES, 34-2018-00247272 10 INC., A DELAWARE CORPORATION; 11 CHRIS McGINNESS, AN INDIVIDUAL; 12 AND DOES 1 THROUGH 10, INCLUSIVE, 13 Defendant(s) / 14 15 16 VIDEOTAPED DEPOSITION OF JOHN BOUDREAU 17 TUESDAY, NOVEMBER 19, 2 019 18 19 20 Reported by; 21 KAREN A. URBANO, CSR License No. 6698 22 Registered Professional Reporter 23 Job No: 3618506 24 25 PAGES 1 - 214 Page 1 Veritext Legal Solutions 866 299-5127 JOHN BOUDREAU - 11/19/2019 1 don't work overtime? 1 Q. BYMR. SCHWAN: So can you recall an instance 2 A. Yes. 2 where your wanted to work overtime and Primeritus 3 Q. Okay. Were there ever any other times where 3 prevented you or didn't allow you to do so? 4 they were telling you you could work overtime like in a 4 A. I can't recall. 5 specific pay period or specific time or on a specific 14:37:20 5 Q. Was there ever a time where you were 14:39:29 6 account, or were those kind of the only two regimes that 6 disciplined for working overtime? 7 we're talking about? 7 A. 1 don't believe so. 8 A. You could put in a Saturday, which would then 8 Q. Did you ever work double time hours, meaning in 9 make it overtime. 9 excess of 12 hours in any one day? 10 Q. And was that always available or sometimes 14:37:32 10 A. No, no. 14:39:47 11 available? 11 MR. SCHWAN: All right. Why don't we take a 12 A. It was - the time I was there, it was almost 12 break? 13 always ~ there were times that it would be blacked out 13 THE VIDEOGRAPHER: Going off record 14 where there weren't any Saturdays being worked. And 14 approximately 2:40. 15 then there were times where they were open every 14:37:45 15 (Whereupon a recess was taken.) 14:40:04 16 Saturday. 16 THE VIDEOGRAPHER: Back on record, 17 Q. And in those instances, did you accurately 17 approximately 3:03. 18 record all of the overtime that you worked? 18 Q. BY MR. SCHWAN: Can you pull up Exhibit 9. 19 A. I didn't--1 rarely worked a Saturday. I'd 19 A. Is that Bates 395? 20 put in a Saturday when 1 was busy. 14:37:59 20 Q. Yes. This is a wage statement we looked at : 15:03:28 21 Q. Well, I'm not just talking about Saturday. I'm 21 earlier. Is there anything on this .wage statement that 22 just talking about overtime generally now. 22 inaccurately reflects what .you were paid on that 23 In those instances when you worked overtime, 23 particular pay period?. 24 did you accurately record the time that you worked? 24 -MR, GUTIERREZ; tf you know. 25 A. Yes. 14:38:10 25 THEWITNESS: Well, I would s a y - I would say 15:03:44 Page 146 Page 148 1 Q. And did Primeritus pay you an additional amount 1 I don't kiiow. The comrriission rate.and the overtime on 2 and a premium on your commission for the times that you 2 coininission, I'm taking at faith because it's not broken 3 worked overtime? 3 down. 4 MR. GUTIERREZ: Calls for legal conclusion. 4 Q. BY MR. SCHWAN: Fair enough. But looking at 5 THEWITNESS: However that was calculated. 14:38:23 5 this wage statement right now, is there anything that 15:04:06 6 Q. BY MR. SCHWAN: Yes or no? 6 you can identify as being inaccurate? 7 Yes, however that — yes. 7 A. No. 8 Q. They paid you an additional amount over your $8 8 Q. Okay. And Primeritus provided you 9 base rate for overtime hours, correct? 9 documentation with respect to the points that you 10 A. Yes. 14:38:35 10 earned, or actually you submitted documentation with 15:04:29 11 Q. And then they paid you an additional amount in 11 respect to the points that you earned, correct? 12 a premium on your commission for the overtime hours that 12 MR. GUTIERREZ: Vague as phrased. 13 you worked, correct? 13 Q. BY MR. SCHWAN: Yeah, so let me rephrase that. 14 MR. GUTIERREZ: Calls for a legal conclusion. 14 You submitted documentation each pay period 15 THEWITNESS: Yes. 14:38:47 15 with respect to the points that you accumulated, 15:04:39 16 Q. BY MR. SCHWAN: Okay. Was there ever a time 16 cortect? 17 when you wanted to work overtime when Primeritus did not 17 A. Yes, we turned in commission sheets. 18 allow you to? 18 Q. And that was then reflected in your commission 19 MR. GUTIERREZ: Other than what he's testified 19 amount, correct? 20 to? 14:39:03 20 A. It should be, yes. 15:04:48 21 THEWITNESS: I can't think of--1 can't 21 Q. And are you aware of a time when the points did 22 think ~ as I said, when it was busy, it was busy. And 22 not match the commission amount that you expected for 23 there wasn't an issue with overtime. 23 any given pay period? 24 When it wasn't busy, then I had no interest in 24 A. Only the time when 1 was required to deduct 25 working overtime. 14:39:16 25 $200 from my check. 15 .05 .03 Page 147 Page 149 38 (Pages 146 - 149) Veritext Legal Solutions 866 299-5127 PROOF OF SERVICE I am employed in the County of Ventura, State of California. I am over the age of eighteen (18) years and not a party to the within action. My business address is 5450 Telegraph Road, Suite 200, Ventura, California 93003. On the date below, I caused to be served, the foregoing document DECLARATION OF DANIEL J. PALAY IN SUPPORT OF REPLY TO DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY ADJUDICATION on the interested parties in said action by placing the true copies thereof enclosed in sealed envelopes addressed as follows: 8 Keith A. Jacoby Attorneys for Defendants, Primeritus Bradley E. Schwan 9 Financial Services Littler Mendelson, PC 10 2049 Century Park East, 5*^ Floor Los Angeles, CA 90067-3107 11 Tel: (310) 553-0308 / Fax: (310) 553-5583 kjacoby@littler.com/bschwan@littler.com 12 13 Nathaniel H. Jenkins Littler Mendelson, PC 14 500 Capitol Mall, Suite 2000 Sacramento, CA 95814 15 Tel: (916) 830-7200 / Fax: (916) 561-0828 njenkins@littler.com 16 17 [ ] BY MAIL: By placing a true copy thereof enclosed in a sealed envelope addressed to the addressee(s) listed above. I am "readily familiar" with the firm's practice of collection and 18 processing correspondence for mailing. Under that practice, it would be deposited with the U.S. Postal Service on that same date with postage thereon fully prepaid at Ventura, California, in the 19 ordinary course of business. I am aware that on motion of the party served, service is presumed 20 invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. 21 [X] (ELECTRONIC MAIL) from _@hathawaylawfirm.com and addressed to the above 22 person(s)/entity(ies) 23 I declare under penalty of perjury under the laws of the State of California that the 24 foregoing is true and correct. Executed on Sept. 4, 2020 at Ventura, California. 25 26 Edna Byerly 27 28 DECLARATION OF DANIEL J. PALAY IN SUPPORT OF REPLY TO DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY ADJUDICATION