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1 KEITH A. JACOBY, Bar No. 150233
kiacobv@littler.com
2 BRADLEY E. SCHWAN, Bar No. 246457
bschwan@littler.com FILED / ENDORSED
3 LITTLER MENDELSON, P C.
2049 Century Park East
4 5th Floor AUG 1 4 2020
Los Angeles, CA 90067.3107
5 Telephone: 310.553.0308
Fax No.: 310.553.5583 By C. Chapo. Deputy Cierk
6
NATHANIEL H. JENKINS, Bar No. 312067
7 nieDkins@littler.com
LITTLER MENDELSON, P.C.
8 500 Capitol Mall
Suite 2000
9 Sacramento, CA 95814
Telephone: 916.830.7200
10 Fax No.: 916.561.0828
11
Attomeys for Defendant
12 PRIMERITUS FINANCIAL SERVICES, INC.
13
SUPERIOR COURT OF CALIFORNIA
14
COUNTY OF SACRAMENTO
15
JOHN BOUDREAU, an individual, on Case No. 34-2018-00247272
16 behalf of himself and all others similarly
situated. Assigned to Department 41, Hon. David De Alba
17
Plaintiff, DEFENDANT PRIMERITUS FINANCIAL
18 SERVICES, INC.'S RESPONSE TO
PLAINTIFF'S SEPARATE STATEMENT IN
19 SUPPORT OF PLAINTIFFS MOTION FOR
PRIMERITUS FINANCIAL SERVICES, SUMMARY ADJUDICATION
20 INC., A Delaware corporation; CHRIS
McGINNESS, an individual; and DOES 1 Date; September 24, 2020
21 through 10, inclusive. Time: 9:00 a.m.
Dept.: 54
22 Defendants. Judge: Christopher E. Krueger
Reservation No. 2517993
23
Complaint filed: December 27, 2018
24 First Amended Complaint filed: April 12, 2019
25
26
27
28
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DEFENDANT'S RESPONSE TO PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF'S
MOTION FOR SUMMARY ADJUDICATION
MOVING PARTY'S UNDISPUTED MATERIAL FACTS
AND SUPPORTING EVIDENCE
3 1. Issue No. 1; Did the Defendant comply with Califomia law with regard to the payment of
4 minimum wages for rest periods and other non-productive time worked by class members?
5
6 PlaintifTs Undisputed Materials Facts and Defendant's Response and Supporting
Supporting Evidence E\idence
7 1. Defendant Primeritus Financial Services,
Undisputed.
Inc. operates a facility in El Dorado Hills,
8
Califomia. At all times relevant herein. Plaintiff
9 and members of the putative class [now certified]
were employed by Defendants as non-exempt
10 employees in the position of investigator/skip
tracer. Plaintiff and die putative class members'
11 job was to perform skip searches and other desk-
based research to assist Defendant's clients in
12
locating collateral. Defendant plays no role in the
13 physical repossession of collateral.
14 Evidence:
Stipulation of Fact #1, Exhibit 1, attached as
15 Exhibit 1 to the Declaration of Daniel J. Palay
("Palay Decl.").
16
2. Plaintiffs initial complaint in this matter
17 Undisputed.
was filed on December 27, 2018. Accordingly,
with respect to claims that apply a four-year
18 statute of limitations, that would extend back to
19 December 27, 2014.
20 Evidence:
Stipulation of Fact #2, Exhibit 1.
21
3. During the statutory period, all class
Undisputed.
22 members participated in similar pay plans. Each
class member was promised that he/she would
23 receive $8.00 for each hour worked. The named
PlaintifF and the class members, in addition to the
24 $8.00 per each hour worked, were informed that
25 each would be paid pursuant to an incentive plan
on a piece rate basis for each item of collateral
26 located by them and recovered by the third-party
recovery service. Defendants' compensation plan
27 was in effect for Plaintiff and members of the
putative class from December 27, 2014 through
28
LITTLER MENDELSON, P.C
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LD* Ans«l.s CA 900S7 310/ DEFENDANT'S RESPONSE TO PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF'S
310 SSJ 0308
MOTION FOR SUMMARY ADJUDICATION
1 PlaintifTs Undisputed Materials Facts and Defendant's Response and Supporting
2 Supporting Evidence Evidence
August 12, 2019. The aforementioned pay plan
3 awarded points system for each piece of collateral
located by the class member and recovered by the
4 third-party re-possessor. Each point eamed was
5 worth $25.00 of piece rate pay. The number of
"points" eamed per item of collateral recovered
6 depended on which of Defendant's client
accounts the class member worked with. Class
7 members were infonned that they were being
paid in the manner reflected above.
8
Evidence:
9 Stipulation of Fact #9, Exhibit 1
10
11 4. Primeritus admits that the class was paid Disputed, but irrelevant, in part - Plaintiff
an hourly rate of $8.00 for each hour worked and mischaracterizes the Parties' Stipulation. The
12 was also paid a piece-rate. Class was not paid an "hourly rate." As set
forth in the Stipulation at 6:18-19, "[e]ach
13 Evidence: class member was promised that he/she would
Stipulation of Fact #9, Exhibit 1; Exhibit 4 to receive $8.00 for each hour worked."
14 Palay Decl., Responses to RFAs No. 1 and 2.
(Emphasis added.) PlaintifF and the Class were
15 not hourly employees, they were piece rate
employees, and thus Primeritus does not admit
16 that the class was paid an "hourly rate."
17
Palay Decl., Exhibit 2 at 6:18-19; Exhibit 3,
18 Defendant's Response to Plaintiffs RFAs, Set
Two, No. 1.
19
5. The Califomia minimum wage in 2014
Undisputed.
20 and 2015 was $9.00/hour; in 2016 it was
$10.00/hour; in 2017 it was $10.50/hour; and in
21 2018 it was $11.00/hour; and in 2019 it is
$12.00/hour for employers with more than 25
22 employers. During these time periods, the
23 Defendant has stipulated it employed more than
25 employees.
24
Evidence:
25 Stipulation of Fact #11,12, Exhibit 1.
26 6. Although the parties have a factual Disputed in part and contradicts Plaintiffs
disagreement conceming die amount of non- testimony. Thus, Defendant objects on the
27 productive time worked by class members on a grounds that Plaintiff assumes facts not in
weekly basis, the parties agree that rest periods evidence.
28
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Lot Aflgelal. CA 00007.310? DEFENDANT'S RESPONSE TO PLAINTffF'S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF'S
310 SS3.030B
MOTKDN FOR SUMMARY ADJUDICATION
1 PlaintifTs Undisputed Materials Facts and Defendant's Response and Supporting
Supporting Evidence Evidence
2
and possibly other non-productive time (meetings
3 with management, training and time spent Further, the insertion ofthe disputed portion of
tracking collateral located by the class member this fact is a question of law and not a disputed
4 where the collateral was not recovered by the fact. Defendant does not dispute that, on
third-party re-possessor) did occur as that term is occasion, collateral goes unlocated. Defendant
5
defined in California Labor Code §226.2. Any disagrees that, as a matter of law, this is
6 non-productive time occurring during the work nonproductive time.
day was not recorded by Primeritus during the
7 statutory period. There is no written record of the Paragraph 13 of die Parties' Stipulation reads
amount of non-productive time worked by class verbatim as follows: "Although the parties
8 members during the statutory period. have a factual disagreement conceming the
9 amount of non-productive time worked by
Evidence: class members on a weekly basis, the parties
10 Stipulation of Fact #13, Exhibit 1. agree that rest periods and possibly other non-
productive time (meetings with management)
11 did occur as that term is defined in Califomia
Labor Code §226.2. Any non-productive time
12 occurring during the work day was not
13 recorded by Primeritus during the statutory
period. There is no written record of the
14 amount of non-productive time worked by
class members during the statutory period."
15
16 Palay Decl., Exhibit 2 at 7:9-15.
17 PlaintiflF adds an additional, non-productive
time activity consisting of "time spent tracking
18 collateral located by the class member where
the collateral was not recovered by the third-
19 party re-possessor. Plaintiff discussed his non-
20 productive activities at length during his
deposition, but failed to raise this alleged non-
21 productive time activity. In his deposition,
PlaintifF conceded that the only non-
22 productive time activities consist of company
meetings, trainings, or a company-sponsored
23 social event - there is not anything else that
24 would have taken him away from his duties of
actively locating collateral for recovery.
25
Here, PlaintifF provides no evidence that his
26 "time spent tracking collateral located by tlie
class member where tlie collateral was not
27 recovered by the third-party re-possessor" was
28 non-productive time. All time spent actively
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Lot Afisel.t CA 00007.310? DEFENDANT'S RESPONSE TO PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF'S
310 SOJ 0300
MOTION FOR SUMMARY ADJUDICATION
1 PlaintifTs Undisputed Materials Facts and Defendant's Response and Supporting
Supporting Evidence Evidence
2
locating collateral for repossession - whether
3 recovered or not - is time spent working
toward eaming a piece-rate, and thus is
4 productive time. In the same way that a shirt-
5 maker, who is paid by the piece for making
shirts, may not be paid for a shirt that is sewn
6 improperly or contains a tear. Skip Tracers are
not paid for collateral not located. This does
7 not convert productive time working towards a
piece to nonproductive time. To this extent.
8
Plaintiff s addition to the stipulated language
9 regarding nonproductive time addressing time
spent tracking collateral that goes unlocated, is
10 disputed.
11 Specifically, Plaintiff discussed the following:
12
"Q. We talked about meetings and reviews and
13 training. Is there anything else that Primeritus
required you to do that took you away from
14 yoiu- duties as an investigator?
A. Benefit meetings.
15 Q. And how much time did you spend in
16 benefit meetings each year?
A. Typically - typically an hour.
17 Q. Anything else?
A. I can't recall, no.
18 Q. Okay. So aside from anything else that - or
all the things that we've discussed thus far,
19 you can't think of anything else that would
20 have taken you away from your investigator
duties that Primeritus required you to do?
21 A. No."
22 Jenkins Decl., Exhibit 1, Pltf.'s Depo. at 85:7-
22.
23
24 DAmico V. Bd. of Med. Examiners ((1974) 11
Cal.3d 1) recognized that admissions against
25 interest have a very high credibility value.
This is especially tme when.. .the admission is
26 obtained not in the normal course of human
activities and affairs, but in the context of an
27 established pretrial procedure whose purpose
28 is to elicit facts. {Id. at 21-22.) Courts thus
LITTLER MENDELSON. P.C
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Loo Ano.ltB. CA 00007 3107 DEFENDANT'S RESPONSE TO PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF'S
310 063 0308
MOTION FOR SUMMARY ADJUDICATION
1 PlaintifTs Undisputed Materials Facts and Defendant's Response and Supporting
Supporting Evidence Evidence
2
consistently refuse to allow a triable issue of
3 fact to be conjured by the submission of an
affidavit contradicting a declarant's prior
4 deposition testimony. {See NeuVisions Sports,
5 Inc. V. Soren/McAdam/Bartells (2000) 86
Cal.App.4th 303, 309.)
6 7. During rest periods or non-productive
time worked, the Plaintiff did not and could not Undisputed.
7 work toward earning a piece rate.
8 Evidence:
Stipulation of Fact #14, Exhibit 1.
9
8. Defendants admit that Califomia Labor
10
Code §226.2 is applicable to the Plaintiff s claim. Undisputed.
11
Evidence:
12 Palay, Decl ^9; Exhibit 4 to Palay Decl.,
Response to RFA No. 5.
13
14
15 Issue No. 2: Do the pay stubs provided to class members comply with California Labor
16 Code §226(a)?
17
Plaintiffs Undisputed Materials Facts and Defendant's Response and Supporting
18 Supporting Evidence Evidence
9. Plaintiff hereby incorporates UMF facts Defendant hereby incorporates its objections
19 and evidence numbers 1 through 6, and 8. and responses to Plaintiffs UMF Nos. 1
through 6, and 8.
20
21 10. Each class member received wage Undisputed.
statements that are in the same format as
22 are attached as Exhibit " 1 " and which
contained the same type of information.
23
Evidence:
24
Stipulation of Fact #10, Exhibit 1.
25
11. Defendant Primeritus' practices for Undisputed.
26 creating wage statements was uniformly
applied to all class members during the
27 statutory period. The general format of
the wage statements did not vary during
28 the class period.
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3lO iS3 0308
MOTION FOR SUMMARY ADJUDICATION
1 PlaintifTs Undisputed Materials Facts and Defendant's Response and Supporting
Supporting E\idence Evidence
2
Evidence:
3 Stipulation of Fact #10, Exhibit 1.
4 12. The wage statements do not contain the Disputed in part. While looking at the
5 number of piece-rate units eamed and do "exemplar" wage statement attached to the
not contain any applicable piece rate. Parties' Stipulation, it shows that Plaintiff
6 earned a total piece-rate amount of $775.00
Evidence: (which was labeled as "Commission" on the
7 Palay, Decl ^6, Exhibit 1 [see wage statements pay stub). (Given that each piece-rate (here,
attached as Exhibit 1 to Exhibit 1. each point earned) was worth $25.00, all
8 Plaintiff had to do to determine the number of
9 piece-rate unites earned was "simple math."
Taking $775.00 and dividing it by $25.00
10 yields 31 - meaning Plaintiff earned 31 points
(or piece-rate units) during this particular pay
11 period. {See Raines v. Coastal Pac. Food
Distribs., Inc. (2018) 23 Cal.App.5th 667, 677
12 ["[t]he mathematical operation required is
13 division, which is taught in grade school.
Although many people cannot perform the
14 calculation in their heads, it can be easily
performed by use of a pencil and paper or a
15 calculator; no additional documents or
information are necessary"].)
16
17 13. The Defendant admits that the Plaintiff Undisputed.
did not sell any services or property on
18 behalf of the Defendant and was not paid
"commission wages" as that term is
19
defined in California Labor Code §204.1
20 ["Commission wages are compensation
paid to any person for services rendered in
21 the sale of such employer's property or
services and based proportionately upon
22 the amount of value thereof"]
23 Evidence:
Palay, Decl f9. Exhibit 4 to Palay Decl.,
24 Response to RFA Nos. 3 and 4
25
26 Issue No. 3; Does the failure to pay the class at least the minimum wage for rest periods,
27 entitle each class member to one additional hour of pay at the employee's regular rate of
28 compensation for each workday that the rest period was not paid at the minimum wage pursuant to
LITTLER MENDELSON. P.C.
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7.
DEFENDANT'S RESPONSE TO PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF'S
MOTION FOR SUMMARY ADJUDICATION
1 California Labor Code §226.7?
2
PlaintifTs Undisputed Materials Facts anc Defendant's Response and Supporting
3 Supporting Evidence Evidence
14. PlaintifF hereby incorporates UMF facts Defendant hereby incorporates its objections
4
and evidence numbers one throughI and responses to Plaintiffs UMF Nos. 1
5 tliirteen. through 13.
6
ADDITIONAL UNDISPUTED MATERIAL FACTS OFFERED BY DEFENDANT
7
8 Defendant's Undisputed Materials Facts and Plaintiffs Response and Supporting Evidence
Supporting Evidence
9 15. PlaintifF concedes that, with the exception of
10 one time regarding a dispute widi Primeritus
over a deduction of his piece-rate pay, he was
11 not aware of a time when the points he earned
did not match the commission amount on his
12 wage statement.
13
Declaration of Nathaniel Jenkins in Support of
14 Defendant's Opposition to Plaintiff s Motion for
Summary Adjudication ("Jenkins Decl."),
15 Exhibit 1 (Plaintiff s Depo.) at 149:4-25; 150:1-
4.
16
17 16. Plaintiff concedes that his wage statements
accurately reflected what Primeritus paid him.
18
Jenkins Decl., Exhibit 1, Pltf'sDepo. at 151:18-
19 25.
20 17. Plaintiff and the Skip Tracers would keep
21 track of their successful vehicle recoveries and
denote the points they earned for each recovery
22 on a document labeled a "commission sheet."
23 Jenkins Decl., Exhibit 1, Pltf s Depo. at 149:13-
20; Defendant's Request for Judicial Notice
24 ("RJN"), Docket No. 77, Compendium of
25 Evidence ("COE"), Exhibit 3, McGinness Decl.
at 17.
26 18. The Skip Tracers would provide this
commission sheet to Primeritus and sign off on
27 its accuracy before it was provided to Primeritus'
payroll department to be calculated into the Skip
28
LITTLER MENDELSON. P.<
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1 KEITH A. JACOBY, Bar No. 150233 kiacobv@littler.com 2 BRADLEY E. SCHWAN, Bar No. 246457 bschwan@littler.com FILED / ENDORSED 3 LITTLER MENDELSON, P C. 2049 Century Park East 4 5th Floor AUG 1 4 2020 Los Angeles, CA 90067.3107 5 Telephone: 310.553.0308 Fax No.: 310.553.5583 By C. Chapo. Deputy Cierk 6 NATHANIEL H. JENKINS, Bar No. 312067 7 nieDkins@littler.com LITTLER MENDELSON, P.C. 8 500 Capitol Mall Suite 2000 9 Sacramento, CA 95814 Telephone: 916.830.7200 10 Fax No.: 916.561.0828 11 Attomeys for Defendant 12 PRIMERITUS FINANCIAL SERVICES, INC. 13 SUPERIOR COURT OF CALIFORNIA 14 COUNTY OF SACRAMENTO 15 JOHN BOUDREAU, an individual, on Case No. 34-2018-00247272 16 behalf of himself and all others similarly situated. Assigned to Department 41, Hon. David De Alba 17 Plaintiff, DEFENDANT PRIMERITUS FINANCIAL 18 SERVICES, INC.'S RESPONSE TO PLAINTIFF'S SEPARATE STATEMENT IN 19 SUPPORT OF PLAINTIFFS MOTION FOR PRIMERITUS FINANCIAL SERVICES, SUMMARY ADJUDICATION 20 INC., A Delaware corporation; CHRIS McGINNESS, an individual; and DOES 1 Date; September 24, 2020 21 through 10, inclusive. Time: 9:00 a.m. Dept.: 54 22 Defendants. Judge: Christopher E. Krueger Reservation No. 2517993 23 Complaint filed: December 27, 2018 24 First Amended Complaint filed: April 12, 2019 25 26 27 28 LITTLER MENDELSON. P.C. ;04E Csniury Pait EB»I DEFENDANT'S RESPONSE TO PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF'S MOTION FOR SUMMARY ADJUDICATION MOVING PARTY'S UNDISPUTED MATERIAL FACTS AND SUPPORTING EVIDENCE 3 1. Issue No. 1; Did the Defendant comply with Califomia law with regard to the payment of 4 minimum wages for rest periods and other non-productive time worked by class members? 5 6 PlaintifTs Undisputed Materials Facts and Defendant's Response and Supporting Supporting Evidence E\idence 7 1. Defendant Primeritus Financial Services, Undisputed. Inc. operates a facility in El Dorado Hills, 8 Califomia. At all times relevant herein. Plaintiff 9 and members of the putative class [now certified] were employed by Defendants as non-exempt 10 employees in the position of investigator/skip tracer. Plaintiff and die putative class members' 11 job was to perform skip searches and other desk- based research to assist Defendant's clients in 12 locating collateral. Defendant plays no role in the 13 physical repossession of collateral. 14 Evidence: Stipulation of Fact #1, Exhibit 1, attached as 15 Exhibit 1 to the Declaration of Daniel J. Palay ("Palay Decl."). 16 2. Plaintiffs initial complaint in this matter 17 Undisputed. was filed on December 27, 2018. Accordingly, with respect to claims that apply a four-year 18 statute of limitations, that would extend back to 19 December 27, 2014. 20 Evidence: Stipulation of Fact #2, Exhibit 1. 21 3. During the statutory period, all class Undisputed. 22 members participated in similar pay plans. Each class member was promised that he/she would 23 receive $8.00 for each hour worked. The named PlaintifF and the class members, in addition to the 24 $8.00 per each hour worked, were informed that 25 each would be paid pursuant to an incentive plan on a piece rate basis for each item of collateral 26 located by them and recovered by the third-party recovery service. Defendants' compensation plan 27 was in effect for Plaintiff and members of the putative class from December 27, 2014 through 28 LITTLER MENDELSON, P.C 204C Canluiy Psfk Eail Slh Fl.oi LD* Ans«l.s CA 900S7 310/ DEFENDANT'S RESPONSE TO PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF'S 310 SSJ 0308 MOTION FOR SUMMARY ADJUDICATION 1 PlaintifTs Undisputed Materials Facts and Defendant's Response and Supporting 2 Supporting Evidence Evidence August 12, 2019. The aforementioned pay plan 3 awarded points system for each piece of collateral located by the class member and recovered by the 4 third-party re-possessor. Each point eamed was 5 worth $25.00 of piece rate pay. The number of "points" eamed per item of collateral recovered 6 depended on which of Defendant's client accounts the class member worked with. Class 7 members were infonned that they were being paid in the manner reflected above. 8 Evidence: 9 Stipulation of Fact #9, Exhibit 1 10 11 4. Primeritus admits that the class was paid Disputed, but irrelevant, in part - Plaintiff an hourly rate of $8.00 for each hour worked and mischaracterizes the Parties' Stipulation. The 12 was also paid a piece-rate. Class was not paid an "hourly rate." As set forth in the Stipulation at 6:18-19, "[e]ach 13 Evidence: class member was promised that he/she would Stipulation of Fact #9, Exhibit 1; Exhibit 4 to receive $8.00 for each hour worked." 14 Palay Decl., Responses to RFAs No. 1 and 2. (Emphasis added.) PlaintifF and the Class were 15 not hourly employees, they were piece rate employees, and thus Primeritus does not admit 16 that the class was paid an "hourly rate." 17 Palay Decl., Exhibit 2 at 6:18-19; Exhibit 3, 18 Defendant's Response to Plaintiffs RFAs, Set Two, No. 1. 19 5. The Califomia minimum wage in 2014 Undisputed. 20 and 2015 was $9.00/hour; in 2016 it was $10.00/hour; in 2017 it was $10.50/hour; and in 21 2018 it was $11.00/hour; and in 2019 it is $12.00/hour for employers with more than 25 22 employers. During these time periods, the 23 Defendant has stipulated it employed more than 25 employees. 24 Evidence: 25 Stipulation of Fact #11,12, Exhibit 1. 26 6. Although the parties have a factual Disputed in part and contradicts Plaintiffs disagreement conceming die amount of non- testimony. Thus, Defendant objects on the 27 productive time worked by class members on a grounds that Plaintiff assumes facts not in weekly basis, the parties agree that rest periods evidence. 28 LITTLER MENDELSON. P.C. 10*e Cenlgiy t>«it Eait Sth Float Lot Aflgelal. CA 00007.310? DEFENDANT'S RESPONSE TO PLAINTffF'S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF'S 310 SS3.030B MOTKDN FOR SUMMARY ADJUDICATION 1 PlaintifTs Undisputed Materials Facts and Defendant's Response and Supporting Supporting Evidence Evidence 2 and possibly other non-productive time (meetings 3 with management, training and time spent Further, the insertion ofthe disputed portion of tracking collateral located by the class member this fact is a question of law and not a disputed 4 where the collateral was not recovered by the fact. Defendant does not dispute that, on third-party re-possessor) did occur as that term is occasion, collateral goes unlocated. Defendant 5 defined in California Labor Code §226.2. Any disagrees that, as a matter of law, this is 6 non-productive time occurring during the work nonproductive time. day was not recorded by Primeritus during the 7 statutory period. There is no written record of the Paragraph 13 of die Parties' Stipulation reads amount of non-productive time worked by class verbatim as follows: "Although the parties 8 members during the statutory period. have a factual disagreement conceming the 9 amount of non-productive time worked by Evidence: class members on a weekly basis, the parties 10 Stipulation of Fact #13, Exhibit 1. agree that rest periods and possibly other non- productive time (meetings with management) 11 did occur as that term is defined in Califomia Labor Code §226.2. Any non-productive time 12 occurring during the work day was not 13 recorded by Primeritus during the statutory period. There is no written record of the 14 amount of non-productive time worked by class members during the statutory period." 15 16 Palay Decl., Exhibit 2 at 7:9-15. 17 PlaintiflF adds an additional, non-productive time activity consisting of "time spent tracking 18 collateral located by the class member where the collateral was not recovered by the third- 19 party re-possessor. Plaintiff discussed his non- 20 productive activities at length during his deposition, but failed to raise this alleged non- 21 productive time activity. In his deposition, PlaintifF conceded that the only non- 22 productive time activities consist of company meetings, trainings, or a company-sponsored 23 social event - there is not anything else that 24 would have taken him away from his duties of actively locating collateral for recovery. 25 Here, PlaintifF provides no evidence that his 26 "time spent tracking collateral located by tlie class member where tlie collateral was not 27 recovered by the third-party re-possessor" was 28 non-productive time. All time spent actively LITTLER MENDELSON. P.O. 4. 1040 CBMUIIT P.ih E«»( bin r i w j i Lot Afisel.t CA 00007.310? DEFENDANT'S RESPONSE TO PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF'S 310 SOJ 0300 MOTION FOR SUMMARY ADJUDICATION 1 PlaintifTs Undisputed Materials Facts and Defendant's Response and Supporting Supporting Evidence Evidence 2 locating collateral for repossession - whether 3 recovered or not - is time spent working toward eaming a piece-rate, and thus is 4 productive time. In the same way that a shirt- 5 maker, who is paid by the piece for making shirts, may not be paid for a shirt that is sewn 6 improperly or contains a tear. Skip Tracers are not paid for collateral not located. This does 7 not convert productive time working towards a piece to nonproductive time. To this extent. 8 Plaintiff s addition to the stipulated language 9 regarding nonproductive time addressing time spent tracking collateral that goes unlocated, is 10 disputed. 11 Specifically, Plaintiff discussed the following: 12 "Q. We talked about meetings and reviews and 13 training. Is there anything else that Primeritus required you to do that took you away from 14 yoiu- duties as an investigator? A. Benefit meetings. 15 Q. And how much time did you spend in 16 benefit meetings each year? A. Typically - typically an hour. 17 Q. Anything else? A. I can't recall, no. 18 Q. Okay. So aside from anything else that - or all the things that we've discussed thus far, 19 you can't think of anything else that would 20 have taken you away from your investigator duties that Primeritus required you to do? 21 A. No." 22 Jenkins Decl., Exhibit 1, Pltf.'s Depo. at 85:7- 22. 23 24 DAmico V. Bd. of Med. Examiners ((1974) 11 Cal.3d 1) recognized that admissions against 25 interest have a very high credibility value. This is especially tme when.. .the admission is 26 obtained not in the normal course of human activities and affairs, but in the context of an 27 established pretrial procedure whose purpose 28 is to elicit facts. {Id. at 21-22.) Courts thus LITTLER MENDELSON. P.C 2040 C.ntuiy Paik Eoil Olh riooi Loo Ano.ltB. CA 00007 3107 DEFENDANT'S RESPONSE TO PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF'S 310 063 0308 MOTION FOR SUMMARY ADJUDICATION 1 PlaintifTs Undisputed Materials Facts and Defendant's Response and Supporting Supporting Evidence Evidence 2 consistently refuse to allow a triable issue of 3 fact to be conjured by the submission of an affidavit contradicting a declarant's prior 4 deposition testimony. {See NeuVisions Sports, 5 Inc. V. Soren/McAdam/Bartells (2000) 86 Cal.App.4th 303, 309.) 6 7. During rest periods or non-productive time worked, the Plaintiff did not and could not Undisputed. 7 work toward earning a piece rate. 8 Evidence: Stipulation of Fact #14, Exhibit 1. 9 8. Defendants admit that Califomia Labor 10 Code §226.2 is applicable to the Plaintiff s claim. Undisputed. 11 Evidence: 12 Palay, Decl ^9; Exhibit 4 to Palay Decl., Response to RFA No. 5. 13 14 15 Issue No. 2: Do the pay stubs provided to class members comply with California Labor 16 Code §226(a)? 17 Plaintiffs Undisputed Materials Facts and Defendant's Response and Supporting 18 Supporting Evidence Evidence 9. Plaintiff hereby incorporates UMF facts Defendant hereby incorporates its objections 19 and evidence numbers 1 through 6, and 8. and responses to Plaintiffs UMF Nos. 1 through 6, and 8. 20 21 10. Each class member received wage Undisputed. statements that are in the same format as 22 are attached as Exhibit " 1 " and which contained the same type of information. 23 Evidence: 24 Stipulation of Fact #10, Exhibit 1. 25 11. Defendant Primeritus' practices for Undisputed. 26 creating wage statements was uniformly applied to all class members during the 27 statutory period. The general format of the wage statements did not vary during 28 the class period. LITTLER MENDELSON. P.C. 20*e Cantuiy Psik Eaal SlA F i w i l a i Ans*l«i, CA OOOer 3107 DEFENDANT'S RESPONSE TO PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF'S 3lO iS3 0308 MOTION FOR SUMMARY ADJUDICATION 1 PlaintifTs Undisputed Materials Facts and Defendant's Response and Supporting Supporting E\idence Evidence 2 Evidence: 3 Stipulation of Fact #10, Exhibit 1. 4 12. The wage statements do not contain the Disputed in part. While looking at the 5 number of piece-rate units eamed and do "exemplar" wage statement attached to the not contain any applicable piece rate. Parties' Stipulation, it shows that Plaintiff 6 earned a total piece-rate amount of $775.00 Evidence: (which was labeled as "Commission" on the 7 Palay, Decl ^6, Exhibit 1 [see wage statements pay stub). (Given that each piece-rate (here, attached as Exhibit 1 to Exhibit 1. each point earned) was worth $25.00, all 8 Plaintiff had to do to determine the number of 9 piece-rate unites earned was "simple math." Taking $775.00 and dividing it by $25.00 10 yields 31 - meaning Plaintiff earned 31 points (or piece-rate units) during this particular pay 11 period. {See Raines v. Coastal Pac. Food Distribs., Inc. (2018) 23 Cal.App.5th 667, 677 12 ["[t]he mathematical operation required is 13 division, which is taught in grade school. Although many people cannot perform the 14 calculation in their heads, it can be easily performed by use of a pencil and paper or a 15 calculator; no additional documents or information are necessary"].) 16 17 13. The Defendant admits that the Plaintiff Undisputed. did not sell any services or property on 18 behalf of the Defendant and was not paid "commission wages" as that term is 19 defined in California Labor Code §204.1 20 ["Commission wages are compensation paid to any person for services rendered in 21 the sale of such employer's property or services and based proportionately upon 22 the amount of value thereof"] 23 Evidence: Palay, Decl f9. Exhibit 4 to Palay Decl., 24 Response to RFA Nos. 3 and 4 25 26 Issue No. 3; Does the failure to pay the class at least the minimum wage for rest periods, 27 entitle each class member to one additional hour of pay at the employee's regular rate of 28 compensation for each workday that the rest period was not paid at the minimum wage pursuant to LITTLER MENDELSON. P.C. 704£ Canlury P>fk Eaal 7. DEFENDANT'S RESPONSE TO PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF'S MOTION FOR SUMMARY ADJUDICATION 1 California Labor Code §226.7? 2 PlaintifTs Undisputed Materials Facts anc Defendant's Response and Supporting 3 Supporting Evidence Evidence 14. PlaintifF hereby incorporates UMF facts Defendant hereby incorporates its objections 4 and evidence numbers one throughI and responses to Plaintiffs UMF Nos. 1 5 tliirteen. through 13. 6 ADDITIONAL UNDISPUTED MATERIAL FACTS OFFERED BY DEFENDANT 7 8 Defendant's Undisputed Materials Facts and Plaintiffs Response and Supporting Evidence Supporting Evidence 9 15. PlaintifF concedes that, with the exception of 10 one time regarding a dispute widi Primeritus over a deduction of his piece-rate pay, he was 11 not aware of a time when the points he earned did not match the commission amount on his 12 wage statement. 13 Declaration of Nathaniel Jenkins in Support of 14 Defendant's Opposition to Plaintiff s Motion for Summary Adjudication ("Jenkins Decl."), 15 Exhibit 1 (Plaintiff s Depo.) at 149:4-25; 150:1- 4. 16 17 16. Plaintiff concedes that his wage statements accurately reflected what Primeritus paid him. 18 Jenkins Decl., Exhibit 1, Pltf'sDepo. at 151:18- 19 25. 20 17. Plaintiff and the Skip Tracers would keep 21 track of their successful vehicle recoveries and denote the points they earned for each recovery 22 on a document labeled a "commission sheet." 23 Jenkins Decl., Exhibit 1, Pltf s Depo. at 149:13- 20; Defendant's Request for Judicial Notice 24 ("RJN"), Docket No. 77, Compendium of 25 Evidence ("COE"), Exhibit 3, McGinness Decl. at 17. 26 18. The Skip Tracers would provide this commission sheet to Primeritus and sign off on 27 its accuracy before it was provided to Primeritus' payroll department to be calculated into the Skip 28 LITTLER MENDELSON. P.< 8. 20-IE C«nlury Park E