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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
Venfiira, CA 93006-3577
4 Telephone: (805) 644-7111 JUL 1 ^ 2020
Facsimile: (805) 644-8296
5 By:. E. Medina
Deputy Clerk
Daniel J. Palay, SBN 159348
6 djp(^calemploymentcounsel. com
Brian D. Hefelfmger, SBN 253054
7 bdh(^calemploymentcounsel. com
PALAY HEFELFINGER, APC
8 1746 S. Victoria Avenue, Suite 230
Venfiira, Califomia 93001
9 Tel: (805) 628-8220
Fax:(805) 765-8600
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 CASE NO.: 34-2018-00247272
of himself and all others similarly situated.
17 Complaint filed: Dec. 27, 2018
Plainfiffs, Assigned to Dept. 54
18
vs. SEPARATE STATEMENT OF
19 MATERIAL FACTS IN SUPPORT OF
PRIMERITUS FINANCIAL SERVICES, PLAINTIFF'S MOTION FOR
20 INC., a Delaware Corporation; CHRIS SUMMARY ADJUDICATION
MCGUINNESS, an individual; and DOES 1
21 through 10, inclusive. {Filed Separately but Concurrently Herewith:
22 Defendants. Notice of Mofion and Motion for Summary
23 Adjudication; Memorandum of Points and
Authorities in support; Declaration of Daniel
24 J. Palay; and [Proposed] Order}
25 RESERVATION #2517993
Date: Sept. 24, 2020
26 Time: 9:00 a.m.
Dept: 54
27
28
PLAINTIFF'S SEPARATE STATEMENT OF MATERIAL FACTS I.S.O. MOTION FOR SUMMARY ADJUDICATION
1 INTRODUCTION
2 Plaintiff JOHN BOUDREAU and the certified class submit this Separate Statement of
3 Undisputed Material Facts, together with references to supporting evidence, in support of their Mofion
4 for Summary Adjudicafion against Defendants.
5 Pursuant to said Mofion, Plaintiff will and hereby does move this Court for an order summarily
6 adjudicafing 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 Califomia 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 Supporting
Supporting Evidence Evidence
13 1. Defendant Primeritus Financial Services,
Inc. operates a facility in El Dorado Hills,
14 Califomia. 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. Plainfiff and the putative class members'
17 job was to perform skip searches and other desk-
based research to assist Defendant's clients in
18
locafing collateral. Defendant plays no role in the
19 physical repossession of collateral.
20 Evidence:
Stipulafion of Fact #1, Exhibit 1, attached as
21 Exhibit 1 to the Declaration of Daniel J. Palay
22 ("Palay Deck").
23 2. Plaintiffs initial complaint in this matter
was filed on December 27, 2018. Accordingly,
24 with respect to claims that apply a four-year
statute of limitations, that would extend back to
25
December 27, 2014.
26
Evidence:
27 Sfipulation of Fact #2, Exhibit 1.
28
PLAINTIFF'S SEPARATE STATEMENT OF MATERIAL FACTS I.S.O. MOTION FOR SUMMARY ADJUDICATION
Plaintiffs Undisputed Materials Facts and Opposing Party's Response and Supporting
1
Supporting Evidence Evidence
2 3. During the statutory period, all class
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
Plainfiff 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
putafive class from December 27, 2014 through
9 August 12, 2019. The aforemenfioned 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 eamed was
11
worth $25.00 of piece rate pay. The number of
12 "points" eamed 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:
Sfipulafion of Fact #9, Exhibit 1
16
17
4. Primeritus admits that the class was paid
18 an hourly rate of $8.00 for each hour worked and
was also paid a piece-rate.
19
Evidence:
20 Stipulafion of Fact #9, Exhibit 1; Exhibit 4 to
21 Palay Decl., Responses to RFAs No. 1 and 2.
22
5. The Califomia minimum wage in 2014 and
23 2015 was $9.00/hour; in 2016 it was $10.00/hour;
24 in 2017 it was $10.50/hour; and in 2018 it was
$11.00/hour; and in 2019 it is $ 12.00/hour for
25 employers with more than 25 employers. During
these time periods, the Defendant has sfipulated it
26 employed more than 25 employees.
27 Evidence:
28 Stipulation of Fact #11,12, Exhibit 1.
PLAINTIFF'S SEPARATE STATEMENT OF MATERIAL FACTS I.S.O. MOTION FOR SUMMARY ADJUDICATION
Plaintiffs Undisputed Materials Facts and Opposing Party's Response and Supporting
1
Supporting Evidence Evidence
2 6. Although the parties have a factual
disagreement conceming the amount of non-
3 productive time worked by class members on a
4 weekly basis, the parties agree that rest periods and
possibly other non-productive time (meetings with
5 management, training and time spent tracking
collateral located by the class member where the
6 collateral was not recovered by the third-party re-
possessor) did occur as that term is defmed in
7
Califomia Labor Code §226.2. Any non-
8 producfive time occurring during the work day was
not recorded by Primeritus during the statutory
9 period. There is no written record of the amount
of non-productive time worked by class members
10 during the statutory period.
11 Evidence:
12 Sfipulafion of Fact #13, Exhibit 1.
13 7. During rest periods or non-productive time
worked, the Plainfiff did not and could not work
14 toward eaming a piece rate.
15
Evidence:
16 Stipulafion of Fact #14, Exhibit 1.
17 8. Defendants admit that Califomia Labor
Code §226.2 is applicable to the Plainfiffs claim.
18
19 Evidence:
Palay, Decl ^9; Exhibit 4 to Palay Deck, Response
20 to RFA No. 5.
21
22
Issue No. 2: Do the pay stubs provided to class members comply with Califomia Labor Code
23
§226(a)?
24
25 Plaintiffs Undisputed Materials Facts and Opposing Party's Response and Supporting
26 Supporting Evidence Evidence
9. Plaintiff hereby incorporates UMF facts
27 and evidence numbers 1 through 6, and 8.
28
4
PLAINTIFF'S SEPARATE STATEMENT OF MATERIAL FACTS I.S.O. MOTION FOR SUMMARY ADJUDICATION
Plaintiffs Undisputed Materials Facts and Opposing Party's Response and Supporting
1 Supporting Evidence Evidence
2 10. Each class member received wage
statements that are in the same format as
3 are attached as Exhibit " 1 " and which
contained the same type of informafion.
4
Evidence:
5
Stipulafion of Fact #10, Exhibit 1.
6
11. Defendant Primeritus' pracfices for
7 creating wage statements was uniformly
applied to all class members during the
8 statutory period. The general format of the
9 wage statements did not vary during the
class period.
10
Evidence:
11 Stipulafion of Fact #10, Exhibit 1.
12
12. The wage statements do not contain the
13 number of piece-rate units eamed and do
not contain any applicable piece rate.
14
Evidence:
15 Palay, Decl T[6, Exhibit 1 [see wage statements
attached as Exhibit 1 to Exhibit 1.
16
17 13. The Defendant admits that the Plainfiff did
not sell any services or property on behalf
18 of the Defendant and was not paid
"commission wages" as that term is
19 defined in Califomia 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:
24 Palay, Decl ^9, Exhibit 4 to Palay Deck, 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, entitle
27
each class member to one additional hour of pay at the employee's regular rate of compensation for each
28
PLAINTIFF'S SEPARATE STATEMENT OF MATERIAL FACTS I.S.O. MOTION FOR SUMMARY ADJUDICATION
1 workday that the rest period was not paid at the minimum wage pursuant to Califomia Labor Code
2 §226.7?
3
Plaintiffs Undisputed Materials Facts and Opposing Party's Response and Supporting
4 Supporting Evidence Evidence
5 14. Plaintiff hereby incorporates UMF facts
and evidence numbers one through
6 thirteen.
7
8
9
Respectfully submitted
10 Dated: July 14, 2020 HATHAWAY PERRETT WEBSTER POWERS
CHRISMAN & GUTIERREZ, APC
11
12
13 Alejandro P.^Gutierrez
14 Attomeys f#Plainfiffs JOHN
BOUDREAU and the Certified Class
15
16
17
18
19
20
21
22
23
24
25
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PLAINTIFF'S SEPARATE STATEMENT OF MATERIAL FACTS I.S.O. 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
3 Telegraph Road, Suite 200, Ventura, Califomia 93003.
4
On the date below, I caused to be served, the foregoing document PLAINTIFF'S
5 SEPARATE STATEMENT RE MOTION FOR SUMMARY AJUDICATION
PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE §437c(t) [Filed
6
Concurrently with Motion for Summary Adjudication; Declarations In Support of Motion;
7 Proposed Order] on the interested parties in said action by placing the tme copies thereof
enclosed in sealed envelopes addressed as follows:
8
Keith A. Jacoby Attorneys for Defendants, Primeritus
9
Bradley E. Schwan
Litfier Mendelson, PC Financial Services and Chris
10
2049 Cenfiiry Park East, 5"' Floor McGinness
11 Los Angeles, CA 90067-3107
Tel: (310) 553-0308 / Fax: (310) 553-5583
12 kjacoby@littler.com^schwan@littler.com
13
Nathaniel H. Jenkins
14 Littler Mendelson, PC
500 Capitol Mall, Suite 2000
15 Sacramento, CA 95814
Tel: (916) 830-7200 / Fax: (916) 561-0828
16 njenkins@littler.com
17
[X] BY MAIL: By placing a tme copy thereof enclosed in a sealed envelope addressed to
18 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 with the U.S.
19 Postal Service on that same date with postage thereon fully prepaid at Ventura, Califomia, in the
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
21 for mailing in affidavit.
22 [X] (ELECTRONIC MAIL) from _@hathawaylawfirm.com and addressed to the above
person(s)/entity(ies)
23
24 I declare under penalty of perjury under the of the State of Califomia that the
foregoing is tme and correct. Executed on July-1 Ventura^ Califomia.
25
26
27
28
PLAINTIFF'S SEPARATE STATEMENT OF MATERIAL FACTS I.S.O. MOTION FOR SUMMARY ADJUDICATION
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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 Venfiira, CA 93006-3577 4 Telephone: (805) 644-7111 JUL 1 ^ 2020 Facsimile: (805) 644-8296 5 By:. E. Medina Deputy Clerk Daniel J. Palay, SBN 159348 6 djp(^calemploymentcounsel. com Brian D. Hefelfmger, SBN 253054 7 bdh(^calemploymentcounsel. com PALAY HEFELFINGER, APC 8 1746 S. Victoria Avenue, Suite 230 Venfiira, Califomia 93001 9 Tel: (805) 628-8220 Fax:(805) 765-8600 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 CASE NO.: 34-2018-00247272 of himself and all others similarly situated. 17 Complaint filed: Dec. 27, 2018 Plainfiffs, Assigned to Dept. 54 18 vs. SEPARATE STATEMENT OF 19 MATERIAL FACTS IN SUPPORT OF PRIMERITUS FINANCIAL SERVICES, PLAINTIFF'S MOTION FOR 20 INC., a Delaware Corporation; CHRIS SUMMARY ADJUDICATION MCGUINNESS, an individual; and DOES 1 21 through 10, inclusive. {Filed Separately but Concurrently Herewith: 22 Defendants. Notice of Mofion and Motion for Summary 23 Adjudication; Memorandum of Points and Authorities in support; Declaration of Daniel 24 J. Palay; and [Proposed] Order} 25 RESERVATION #2517993 Date: Sept. 24, 2020 26 Time: 9:00 a.m. Dept: 54 27 28 PLAINTIFF'S SEPARATE STATEMENT OF MATERIAL FACTS I.S.O. MOTION FOR SUMMARY ADJUDICATION 1 INTRODUCTION 2 Plaintiff JOHN BOUDREAU and the certified class submit this Separate Statement of 3 Undisputed Material Facts, together with references to supporting evidence, in support of their Mofion 4 for Summary Adjudicafion against Defendants. 5 Pursuant to said Mofion, Plaintiff will and hereby does move this Court for an order summarily 6 adjudicafing 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 Califomia 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 Supporting Supporting Evidence Evidence 13 1. Defendant Primeritus Financial Services, Inc. operates a facility in El Dorado Hills, 14 Califomia. 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. Plainfiff and the putative class members' 17 job was to perform skip searches and other desk- based research to assist Defendant's clients in 18 locafing collateral. Defendant plays no role in the 19 physical repossession of collateral. 20 Evidence: Stipulafion of Fact #1, Exhibit 1, attached as 21 Exhibit 1 to the Declaration of Daniel J. Palay 22 ("Palay Deck"). 23 2. Plaintiffs initial complaint in this matter was filed on December 27, 2018. Accordingly, 24 with respect to claims that apply a four-year statute of limitations, that would extend back to 25 December 27, 2014. 26 Evidence: 27 Sfipulation of Fact #2, Exhibit 1. 28 PLAINTIFF'S SEPARATE STATEMENT OF MATERIAL FACTS I.S.O. MOTION FOR SUMMARY ADJUDICATION Plaintiffs Undisputed Materials Facts and Opposing Party's Response and Supporting 1 Supporting Evidence Evidence 2 3. During the statutory period, all class 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 Plainfiff 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 putafive class from December 27, 2014 through 9 August 12, 2019. The aforemenfioned 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 eamed was 11 worth $25.00 of piece rate pay. The number of 12 "points" eamed 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: Sfipulafion of Fact #9, Exhibit 1 16 17 4. Primeritus admits that the class was paid 18 an hourly rate of $8.00 for each hour worked and was also paid a piece-rate. 19 Evidence: 20 Stipulafion of Fact #9, Exhibit 1; Exhibit 4 to 21 Palay Decl., Responses to RFAs No. 1 and 2. 22 5. The Califomia minimum wage in 2014 and 23 2015 was $9.00/hour; in 2016 it was $10.00/hour; 24 in 2017 it was $10.50/hour; and in 2018 it was $11.00/hour; and in 2019 it is $ 12.00/hour for 25 employers with more than 25 employers. During these time periods, the Defendant has sfipulated it 26 employed more than 25 employees. 27 Evidence: 28 Stipulation of Fact #11,12, Exhibit 1. PLAINTIFF'S SEPARATE STATEMENT OF MATERIAL FACTS I.S.O. MOTION FOR SUMMARY ADJUDICATION Plaintiffs Undisputed Materials Facts and Opposing Party's Response and Supporting 1 Supporting Evidence Evidence 2 6. Although the parties have a factual disagreement conceming the amount of non- 3 productive time worked by class members on a 4 weekly basis, the parties agree that rest periods and possibly other non-productive time (meetings with 5 management, training and time spent tracking collateral located by the class member where the 6 collateral was not recovered by the third-party re- possessor) did occur as that term is defmed in 7 Califomia Labor Code §226.2. Any non- 8 producfive time occurring during the work day was not recorded by Primeritus during the statutory 9 period. There is no written record of the amount of non-productive time worked by class members 10 during the statutory period. 11 Evidence: 12 Sfipulafion of Fact #13, Exhibit 1. 13 7. During rest periods or non-productive time worked, the Plainfiff did not and could not work 14 toward eaming a piece rate. 15 Evidence: 16 Stipulafion of Fact #14, Exhibit 1. 17 8. Defendants admit that Califomia Labor Code §226.2 is applicable to the Plainfiffs claim. 18 19 Evidence: Palay, Decl ^9; Exhibit 4 to Palay Deck, Response 20 to RFA No. 5. 21 22 Issue No. 2: Do the pay stubs provided to class members comply with Califomia Labor Code 23 §226(a)? 24 25 Plaintiffs Undisputed Materials Facts and Opposing Party's Response and Supporting 26 Supporting Evidence Evidence 9. Plaintiff hereby incorporates UMF facts 27 and evidence numbers 1 through 6, and 8. 28 4 PLAINTIFF'S SEPARATE STATEMENT OF MATERIAL FACTS I.S.O. MOTION FOR SUMMARY ADJUDICATION Plaintiffs Undisputed Materials Facts and Opposing Party's Response and Supporting 1 Supporting Evidence Evidence 2 10. Each class member received wage statements that are in the same format as 3 are attached as Exhibit " 1 " and which contained the same type of informafion. 4 Evidence: 5 Stipulafion of Fact #10, Exhibit 1. 6 11. Defendant Primeritus' pracfices for 7 creating wage statements was uniformly applied to all class members during the 8 statutory period. The general format of the 9 wage statements did not vary during the class period. 10 Evidence: 11 Stipulafion of Fact #10, Exhibit 1. 12 12. The wage statements do not contain the 13 number of piece-rate units eamed and do not contain any applicable piece rate. 14 Evidence: 15 Palay, Decl T[6, Exhibit 1 [see wage statements attached as Exhibit 1 to Exhibit 1. 16 17 13. The Defendant admits that the Plainfiff did not sell any services or property on behalf 18 of the Defendant and was not paid "commission wages" as that term is 19 defined in Califomia 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: 24 Palay, Decl ^9, Exhibit 4 to Palay Deck, 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, entitle 27 each class member to one additional hour of pay at the employee's regular rate of compensation for each 28 PLAINTIFF'S SEPARATE STATEMENT OF MATERIAL FACTS I.S.O. MOTION FOR SUMMARY ADJUDICATION 1 workday that the rest period was not paid at the minimum wage pursuant to Califomia Labor Code 2 §226.7? 3 Plaintiffs Undisputed Materials Facts and Opposing Party's Response and Supporting 4 Supporting Evidence Evidence 5 14. Plaintiff hereby incorporates UMF facts and evidence numbers one through 6 thirteen. 7 8 9 Respectfully submitted 10 Dated: July 14, 2020 HATHAWAY PERRETT WEBSTER POWERS CHRISMAN & GUTIERREZ, APC 11 12 13 Alejandro P.^Gutierrez 14 Attomeys f#Plainfiffs JOHN BOUDREAU and the Certified Class 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFF'S SEPARATE STATEMENT OF MATERIAL FACTS I.S.O. 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 3 Telegraph Road, Suite 200, Ventura, Califomia 93003. 4 On the date below, I caused to be served, the foregoing document PLAINTIFF'S 5 SEPARATE STATEMENT RE MOTION FOR SUMMARY AJUDICATION PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE §437c(t) [Filed 6 Concurrently with Motion for Summary Adjudication; Declarations In Support of Motion; 7 Proposed Order] on the interested parties in said action by placing the tme copies thereof enclosed in sealed envelopes addressed as follows: 8 Keith A. Jacoby Attorneys for Defendants, Primeritus 9 Bradley E. Schwan Litfier Mendelson, PC Financial Services and Chris 10 2049 Cenfiiry Park East, 5"' Floor McGinness 11 Los Angeles, CA 90067-3107 Tel: (310) 553-0308 / Fax: (310) 553-5583 12 kjacoby@littler.com^schwan@littler.com 13 Nathaniel H. Jenkins 14 Littler Mendelson, PC 500 Capitol Mall, Suite 2000 15 Sacramento, CA 95814 Tel: (916) 830-7200 / Fax: (916) 561-0828 16 njenkins@littler.com 17 [X] BY MAIL: By placing a tme copy thereof enclosed in a sealed envelope addressed to 18 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 with the U.S. 19 Postal Service on that same date with postage thereon fully prepaid at Ventura, Califomia, in the 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 21 for mailing in affidavit. 22 [X] (ELECTRONIC MAIL) from _@hathawaylawfirm.com and addressed to the above person(s)/entity(ies) 23 24 I declare under penalty of perjury under the of the State of Califomia that the foregoing is tme and correct. Executed on July-1 Ventura^ Califomia. 25 26 27 28 PLAINTIFF'S SEPARATE STATEMENT OF MATERIAL FACTS I.S.O. MOTION FOR SUMMARY ADJUDICATION