Preview
Alejandro P. Gutierrez, SBN 107688
1 agutierrez@hathawaylawfirm. com
2 HATHAWAY, PERRETT, WEBSTER, POWERS,
CHRISMAN & GUTIERREZ, APC
3 5450 Telegraph Road, Suite 200
Venttira,CA 93006-3577
4 Telephone: (805) 644-7111
Facsimile: (805) 644-8296
5
Daniel J. Palay, SBN 159348
6 djp(^calemploymentcounsel. com
Brian D. Hefelfinger, SBN 253054
7 bdh(^calemploymentcounsel. com
PALAY HEFELFINGER, APC
8 1746 S. Victoria Avenue, Suite 230
Venttira, Califomia 93001
9 Tel: (805) 628-8220
Fax: (805) 765-8600
10
Attorneys for Plaintiffs JOHN BOUDREAU
11 and the Certified Class
12
13 SUPERIOR COURT OF THE STATE OF CALIFORNIA
14 FOR THE COUNTY OF SACRAMENTO (UNLIMITED)
15
JOHN BOUDREAU, an individual, on behalf of CASE NO.: 34-2018-00247272
16 himself and all others similarly situated.
Complaint filed: Dec. 27, 2018
17 Plaintiffs, Assigned to Dept. 54
18 vs.
PLAINTIFF'S AMENDED NOTICE
19 PRIMERITUS FINANCIAL SERVICES, INC., a OF MOTION FOR SUMMARY
Delaware Corporation; CHRIS MCGUINNESS, AJUDICATION PURSUANT TO
20 an individual; and DOES 1 through 10, inclusive, CALIFORNIA CODE OF CIVIL
21 PROCEDURE §437c(t)
Defendants.
22 [RESERVATION #2517993]
Date: October 1, 2020
23 Time: 9:00 a.m.
Dept: 54
24
25
26 TO THE COURT, ALL INTERESTED PARTIES AND THEIR ATTORNEYS:
///
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28 ///
PLAINTIFF'S AMENDED NOTICE OF MOTION FOR SUMMARY AJUDICATION
PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE §437c(t)
1 PLEASE TAKE NOTICE THAT pursuant to the stipulation of the parties, the Court's Order
2 dated January 30, 2020, and the Court's Tentative Ruling dated September 23, 2020, plaintiff John
3 Boudreau ("Plaintiff) hereby notifies all parties herein that the motion for summary adjudication
4 pursuant to Califomia Code of Civil Procedure §437c(t) has been re-scheduled to be heard on October
5. 1, 2020, at 9:00 a.m., in Dept 54 of the above entitled court.
6 Pursuant to said Motion, Plaintiff will and hereby does move this Court for an order summarily
7 adjudicating issues number one through three below. This Motion is made pursuant to California
8 Code of Civil Procedure § 437c(t) and the California Rules of Court, Rule 3.1350.
9 The issues to be determined are as follows:
10 1. Did the Defendant comply with Califomia law with regard to the payment of minimum
II wages for rest periods and other non-productive time worked by class members?
12 2. Do the pay stubs provided to class members comply with Califomia Labor Code
13 §226(a)?
14 3. Does the failure to pay the class at least the minimum wage for rest periods, entitle each
15 class member to one additional hour of pay at the employee's regular rate of compensation for each
16 workday that the rest period was not paid at the minimum wage pursuant to Califomia Labor Code
17 §226.7?
18 This Motion is based upon this Amended Notice of Motion, the original Notice of Motion, the
19 Memorandum of Points and Authorities in Support thereof, the Separate Statement of Undisputed Material
20 Facts and evidence in support thereof; the Declaration of Daniel J. Palay, the Stipulation of the Parties, the
21 exhibits thereto lodged with the Court, the [Proposed] Judgment and/or] Order, all pleadings and records on
22 file herein, and such further argument and evidence as may be received by the Court at the hearing on this
23 matter.
24
25
26 ///
27 ///
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PLAINTIFF'S AMENDED NOTICE OF MOTION FOR SUMMARY AJUDICATION
PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE §437c(t)
1 Pursuant to Local Rule 1.06 (A), the court will make a tentative mling on the merits of this matter by
2 2:00 p.m., the court day before the hearing. The complete text of the tentative mlings for the department may
3 be downloaded from the Court's public access site. (https://services.saccourt.ca.gov/PublicCaseAccess/Civil).
4 If you do not have online access, you may call the dedicated phone number for the department as referenced
5 in the local telephone directory, between the hours of 2:00 p.m. and 4:00 p.m. on the court day before the
6 hearing and listen to the tentative ruling. If you do not call the court and the opposing party by 4:00 p.m. the
7 court day before the hearing, no hearing will be held.
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10 Dated: September 23,2020 PALAY HEFELFINGER, APC
11
12 Daniel J. Palay
Attomeys for Plaintiff JOHN BOUDREAU and
13 the Class
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PLAINTIFF'S AMENDED NOTICE OF MOTION FOR SUMMARY AJUDICATION
PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE §437c(t)
PROOF OF SERVICE
1
2 I am employed in the County of Ventura, State of Califomia. I am over the age of eighteen
(18) years and not a party to the within action. My business address is 5450 Telegraph Road, Suite
3 200, Venttu-a, Califomia 93003.
4 On the date below, I caused to be served, the foregoing document PLAINTIFF'S AMENDED
NOTICE OF MOTION FOR SUMMARY AJUDICATION PURSUANT TO CALIFORNIA
5
CODE OF CIVIL PROCEDURE §437c(t) on the interested parties in said action by placing the tme
6 copies thereof enclosed in sealed envelopes addressed as follows:
7 Keith A. Jacoby Attorneys for Defendant, Primeritus
Bradley E. Schwan
8 Financial Services
Littler Mendelson, PC
9 2049 Centtiry Park East, S"" Floor
Los Angeles, CA 90067-3107
10 Tel: (310) 553-0308 / Fax: (310) 553-5583
kjacoby(^littler.com/bschwan(§littler.com
11
Nathaniel H. Jenkins
12 Littler Mendelson, PC
13 500 Capitol Mall, Suite 2000
Sacramento, CA 95814
14 Tel: (916) 830-7200 / Fax: (916)561-0828
njenkins(^littler.com
15
[ ] BY M A I L : By placing a tme copy thereof enclosed in a sealed envelope addressed to
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the addressee(s) listed above. I am "readily familiar" with the firm's practice of collection and
17 processing correspondence for mailing. Under that practice, it would be deposited with the U.S.
Postal Service on that same date with postage thereon fiilly prepaid at Ventura, Califomia, in the
18 ordinary course of business. I am aware that on motion of the party served, service is presumed
invalid if postal cancellation date or postage meter date is more than one day after date of deposit
19 for mailing in affidavit.
20
[ ] BY OVERNIGHT DELIVERY: By sending a tme copy thereof by ovemight delivery service
21 to the addressee(s) listed above. The envelope was deposited in or with a facility regularly
maintained by the ovemight carrier with delivery fees paid or provided for.
22
[X] ELECTRONIC MAIL: By electronically mailing the document(s) listed above to the e-mail
23
address(es) set forth below, or as stated on the attached service list per agreement in
24 accordance with the Code of Civil Procedure §1010.6 and also Judicial Council Emergency
Rule #12.
25
I declare under penalty of perjury under the laws of the State of Califomia that the
26 foregoing is tme and correct. Executed on September 23, 2020, at Ventura, Califomia.
27
/s/Edna Byerly
28 Edna Byerly
PLAINTIFF'S AMENDED NOTICE OF MOTION FOR SUMMARY AJUDICATION
PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE §437c(t)
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Alejandro P. Gutierrez, SBN 107688 1 agutierrez@hathawaylawfirm. com 2 HATHAWAY, PERRETT, WEBSTER, POWERS, CHRISMAN & GUTIERREZ, APC 3 5450 Telegraph Road, Suite 200 Venttira,CA 93006-3577 4 Telephone: (805) 644-7111 Facsimile: (805) 644-8296 5 Daniel J. Palay, SBN 159348 6 djp(^calemploymentcounsel. com Brian D. Hefelfinger, SBN 253054 7 bdh(^calemploymentcounsel. com PALAY HEFELFINGER, APC 8 1746 S. Victoria Avenue, Suite 230 Venttira, Califomia 93001 9 Tel: (805) 628-8220 Fax: (805) 765-8600 10 Attorneys for Plaintiffs JOHN BOUDREAU 11 and the Certified Class 12 13 SUPERIOR COURT OF THE STATE OF CALIFORNIA 14 FOR THE COUNTY OF SACRAMENTO (UNLIMITED) 15 JOHN BOUDREAU, an individual, on behalf of CASE NO.: 34-2018-00247272 16 himself and all others similarly situated. Complaint filed: Dec. 27, 2018 17 Plaintiffs, Assigned to Dept. 54 18 vs. PLAINTIFF'S AMENDED NOTICE 19 PRIMERITUS FINANCIAL SERVICES, INC., a OF MOTION FOR SUMMARY Delaware Corporation; CHRIS MCGUINNESS, AJUDICATION PURSUANT TO 20 an individual; and DOES 1 through 10, inclusive, CALIFORNIA CODE OF CIVIL 21 PROCEDURE §437c(t) Defendants. 22 [RESERVATION #2517993] Date: October 1, 2020 23 Time: 9:00 a.m. Dept: 54 24 25 26 TO THE COURT, ALL INTERESTED PARTIES AND THEIR ATTORNEYS: /// 27 28 /// PLAINTIFF'S AMENDED NOTICE OF MOTION FOR SUMMARY AJUDICATION PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE §437c(t) 1 PLEASE TAKE NOTICE THAT pursuant to the stipulation of the parties, the Court's Order 2 dated January 30, 2020, and the Court's Tentative Ruling dated September 23, 2020, plaintiff John 3 Boudreau ("Plaintiff) hereby notifies all parties herein that the motion for summary adjudication 4 pursuant to Califomia Code of Civil Procedure §437c(t) has been re-scheduled to be heard on October 5. 1, 2020, at 9:00 a.m., in Dept 54 of the above entitled court. 6 Pursuant to said Motion, Plaintiff will and hereby does move this Court for an order summarily 7 adjudicating issues number one through three below. This Motion is made pursuant to California 8 Code of Civil Procedure § 437c(t) and the California Rules of Court, Rule 3.1350. 9 The issues to be determined are as follows: 10 1. Did the Defendant comply with Califomia law with regard to the payment of minimum II wages for rest periods and other non-productive time worked by class members? 12 2. Do the pay stubs provided to class members comply with Califomia Labor Code 13 §226(a)? 14 3. Does the failure to pay the class at least the minimum wage for rest periods, entitle each 15 class member to one additional hour of pay at the employee's regular rate of compensation for each 16 workday that the rest period was not paid at the minimum wage pursuant to Califomia Labor Code 17 §226.7? 18 This Motion is based upon this Amended Notice of Motion, the original Notice of Motion, the 19 Memorandum of Points and Authorities in Support thereof, the Separate Statement of Undisputed Material 20 Facts and evidence in support thereof; the Declaration of Daniel J. Palay, the Stipulation of the Parties, the 21 exhibits thereto lodged with the Court, the [Proposed] Judgment and/or] Order, all pleadings and records on 22 file herein, and such further argument and evidence as may be received by the Court at the hearing on this 23 matter. 24 25 26 /// 27 /// 28 PLAINTIFF'S AMENDED NOTICE OF MOTION FOR SUMMARY AJUDICATION PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE §437c(t) 1 Pursuant to Local Rule 1.06 (A), the court will make a tentative mling on the merits of this matter by 2 2:00 p.m., the court day before the hearing. The complete text of the tentative mlings for the department may 3 be downloaded from the Court's public access site. (https://services.saccourt.ca.gov/PublicCaseAccess/Civil). 4 If you do not have online access, you may call the dedicated phone number for the department as referenced 5 in the local telephone directory, between the hours of 2:00 p.m. and 4:00 p.m. on the court day before the 6 hearing and listen to the tentative ruling. If you do not call the court and the opposing party by 4:00 p.m. the 7 court day before the hearing, no hearing will be held. 8 9 10 Dated: September 23,2020 PALAY HEFELFINGER, APC 11 12 Daniel J. Palay Attomeys for Plaintiff JOHN BOUDREAU and 13 the Class 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFF'S AMENDED NOTICE OF MOTION FOR SUMMARY AJUDICATION PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE §437c(t) PROOF OF SERVICE 1 2 I am employed in the County of Ventura, State of Califomia. I am over the age of eighteen (18) years and not a party to the within action. My business address is 5450 Telegraph Road, Suite 3 200, Venttu-a, Califomia 93003. 4 On the date below, I caused to be served, the foregoing document PLAINTIFF'S AMENDED NOTICE OF MOTION FOR SUMMARY AJUDICATION PURSUANT TO CALIFORNIA 5 CODE OF CIVIL PROCEDURE §437c(t) on the interested parties in said action by placing the tme 6 copies thereof enclosed in sealed envelopes addressed as follows: 7 Keith A. Jacoby Attorneys for Defendant, Primeritus Bradley E. Schwan 8 Financial Services Littler Mendelson, PC 9 2049 Centtiry Park East, S"" Floor Los Angeles, CA 90067-3107 10 Tel: (310) 553-0308 / Fax: (310) 553-5583 kjacoby(^littler.com/bschwan(§littler.com 11 Nathaniel H. Jenkins 12 Littler Mendelson, PC 13 500 Capitol Mall, Suite 2000 Sacramento, CA 95814 14 Tel: (916) 830-7200 / Fax: (916)561-0828 njenkins(^littler.com 15 [ ] BY M A I L : By placing a tme copy thereof enclosed in a sealed envelope addressed to 16 the addressee(s) listed above. I am "readily familiar" with the firm's practice of collection and 17 processing correspondence for mailing. Under that practice, it would be deposited with the U.S. Postal Service on that same date with postage thereon fiilly prepaid at Ventura, Califomia, in the 18 ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit 19 for mailing in affidavit. 20 [ ] BY OVERNIGHT DELIVERY: By sending a tme copy thereof by ovemight delivery service 21 to the addressee(s) listed above. The envelope was deposited in or with a facility regularly maintained by the ovemight carrier with delivery fees paid or provided for. 22 [X] ELECTRONIC MAIL: By electronically mailing the document(s) listed above to the e-mail 23 address(es) set forth below, or as stated on the attached service list per agreement in 24 accordance with the Code of Civil Procedure §1010.6 and also Judicial Council Emergency Rule #12. 25 I declare under penalty of perjury under the laws of the State of Califomia that the 26 foregoing is tme and correct. Executed on September 23, 2020, at Ventura, Califomia. 27 /s/Edna Byerly 28 Edna Byerly PLAINTIFF'S AMENDED NOTICE OF MOTION FOR SUMMARY AJUDICATION PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE §437c(t)