Preview
FlLED/EMDOeSED
JUL 1 5 2020
1 KEITH A. JACOBY, Bar No. 150233
kjacobv@littler.com Bv:. S Khorn
Oe.puty Cic.'k
2 BRADLEY E. SCHWAN, Bar No. 246457
bschwan@littler.com
3 LITTLER MENDELSON, P.C.
2049 Century Park East
4 5th Floor
Los Angeles, CA 90067.3107
5 Telephone: 310.553.0308
Fax No.: 310.553.5583
6
X NATHANIEL H. JENKINS, Bar No. 312067
7 njenkins@littler.com
o 8
LITTLER MENDELSON, P.C.
500 Capitol Mall
Suite 2000
LL- 9 Sacramento, CA 95814
Telephone: 916.830.7200
10 Fax No.: 916.561.0828
Attomeys for Defendant
12 PRIMERITUS FINANCIAL SERVICES, INC.
13
SUPERIOR COURT OF CALIFORNIA
14
COUNTY OF SACRAMENTO
15
JOHN BOUDREAU, an individual, on CaseNo. 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 NOTICE OF MOTION
V. AND MOTION FOR SUMMARY
19 ADJUDICATION
PRIMERITUS FINANCIAL SERVICES,
20 INC., A Delaware corporation; CHRIS Date: September 24, 2020
McGlNNESS, an individual; and DOES 1 Time: 9:00 a.m.
21 through 10, inclusive. Dept.: 54
Judge: Christopher E. Krueger
22 Defendants. Reservation No. 2519118
23 Complaint filed: December 27, 2018
First Amended Complaint filed: April 12, 2019
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25
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LITTLER MENDELSON, P.C. 4835-6767-2760.1 087308.1007
2048 Cenm-y Park E>ti
DEFENDANT PRIMERITUS FINANCIAL SERVICES, INC.'S NOTICE OF MOTION AND MOTION FOR
SUMMARY ADJUDICATION
1 TO PLAINTIFF AND HIS ATTORNEYS OF RECORD:
2 YOU ARE HEREBY NOTIFIED that on Thursday, September 24, 2020, at 9:00 a.m.
3 in Department 54 of this Court, located at 813 6th Street, Hall of Justice Building, Sacramento,
4 Califomia, Defendant PRIMERITUS FfNANClAL SERVICES, INC. will move, and hereby does
5 move this Court for summary adjudication in favor of PRIMERITUS FINANCIAL SERVICES,
6 fNC. and against Plaintiff JOHN BOUDREAU and for costs of suit incurred herein and such other
7 relief as may be just.
8 Defendant's motion is be made upon the grounds that Plaintiffs claims fail as a
9 matter of law. There is no triable issue of material fact as to how Plaintiff and the Class Members
10 were paid. Accordingly, Defendant seeks summary adjudication on Plaintiffs claims as follows:
11 Plaintiffs First Cause of Action for Failure to Pay Minimum Wage fails as a matter
12 of law because:
13 (1) Primeritus provided a separate component of pay to Skip Tracers to
14 compensate them for rest periods and other nonproductive time;
15 (2) The separate amount Primeritus paid was more than sufficient to cover rest
16 breaks at their average hourly rate;
17 (3) The separate amount Primeritus paid was also more than sufficient to
18 cover other nonproductive time at the minimum wage; and
19 (4) The amount Primeritus paid for other nonproductive time was based on
20 Primeritus' reasonable estimates.
21 Plaintiffs Second Cause of Action for Failure to Timely Pay Wages fails as a matter
22 of law because it is derivative of Plaintiff s First Cause of Action;
23 Plaintiffs Third Cause of Action for Failure to Property Compensate for Rest
24 Periods fails as a matter of law because:
25 (1) Primeritus separately compensated Plaintiff and the Class for all rest
26 periods at or above their average hourly rate.
27 Plaintiffs Sixth Cause of Action for Violation of the Unfair Competition Law and
28 Business and Professions Code Section 17200 fails as a matter of law to the extent it is duplicative of
LITTLER MENDELSON, P.C. 4835-6767-2760.1087308.1007 2.
1049 CeiMU-J P M H E » H
Sth ^loor
Lot Angeles. CA 80067.3107 DEFENDANT PRIMERITUS FINANCIAL SERVICES, INC.'S NOTICE OF MOTION AND MOTION FOR
31D 553.0300
SUMMARY ADJUDICATION
1 his First and Third Causes of Action; and
2 Plaintiffs Seventh Cause of Action for Civil Penalties under PAGA fails as a matter
3 of law to the extent it is duplicative of his First, Second, and Third Causes of Action.
4 Defendant's motion is based upon this Notice of Motion, the Memorandum of Points
5 and Authorities, the Separate Statement of Undisputed Material Facts, the Declarations of Nathaniel
6 H. Jenkins, Christopher McGinness, and Michael P. Ward, and all of the exhibits attached thereto,
7 all of which are filed herewith, and all other supporting matters and materials.
8 Pursuant to Local Rule 1.06 (A), the court will make a tentative ruling on the merits
9 of this matter by 2:00 p.m., the court day before the hearing. The complete text of the tentative
10 rulings for the department may be downloaded off the court's website. If the party does not have
11 online access, they may call the dedicated phone number for the department as referenced in the
12 local telephone directory between the hours of 2:00 p.m. and 4:00 p.m. on the court day before the
13 hearing and receive the tentative ruling. If you do not call the court and the opposing party by 4:00
14 p.m. the court day before the hearing, no hearing will be held.
15 Dated: July 15, 2020
16
17
KEITH A. JACOBY
18 BRADLEY E. SCHWAN
NATHANIEL H. JENKINS
19 LITTLER MENDELSON, P.C.
Attomeys for Defendant
20 PRIMERITUS FINANCIAL SERVICES, INC.
21
22
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27
28
4835-6767-2760.1 087308.1007
LITTLER MENBELSON, P.C.
2tllB Cenru.y ParK Eosr
SIS sjoor
Los Angslas. CA 000G7.3107 DEFENDANT PRIMERITUS FINANCIAL SERVICES, INC.'S NOTICE OF MOTION AND MOTION FOR
3tO SS3.03aB
SUMMARY ADJUDICATION
KEITH A. JACOBY, Bar No. 150233
kjacobv@littler.com
BRADLEY E. SCHWAN, Bar No. 246457
bschwan@littler.com
LITTLER MENDELSON, P.C.
2049 Century Park East
5th Floor
Los Angeles, CA 90067.3107
Telephone: 310.553.0308
Fax No.: 310.553.5583
NATHANIEL H. JENKINS, Bar No. 312067
X njenkins@littler.com
LITTLER MENDELSON, P.C.
0 500 Capitol Mall
Suite 2000
'9 Sacramento, CA 95814
CO 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, [PROPOSED] ORDER GRANTING
18 DEFENDANT PRIMERITUS FINANCIAL
SERVICES, INC.'S MOTION FOR
19 SUMMARY ADJUDICATION
PRIMERITUS FINANCIAL SERVICES,
20 f N C , A Delaware corporation; CHRIS Date: September 24, 2020
McGlNNESS, an individual; and DOES 1 Time: 9:00 a.m.
21 through 10, inclusive. Dept.: 54
Judge: Christopher E. Krueger
22 Defendants. Reservation No. 2519118
23 Complaint filed: December 27, 2018
First Amended Complaint filed: April 12, 2019
24
25
26
7
LITTLER MENDELSON, P.C
2040 Ceniu.) Par)( EBSI
Sirr =lDOr
4850-0553-2611.1 087308.1007
Los AngereS. CA 60007.3107
31D SS3.D308
[PROPOSED] ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY ADJUDICATION
1 [PROPOSED] ORDER
2
On , 2020, at 9:00 a.m. Department 54 of this Court,
3
located at 813 6th Street, Hall of Justice Building, Sacramento, Califomia, Defendant PRIMERITUS
4
FINANCIAL SERVICES, INC.'S ("Defendant") Motion for Summary Adjudication ("Motion"),
5
came on regularly for hearing in the above-captioned matter.
6
The Court, having read and considered the papers submitted both in support of and in
7
opposition to the Motion, and based upon the papers and pleadings on file in this matter as well as
8
oral argument, if any, of the parties, and GOOD CAUSE appearing therefore,
9
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that Defendant has
10
shown by admissible evidence and reasonable inference therefrom, not contradicted by other
11
evidence and reasonable inferences, that there is no triable issue of any material fact with respect to
12
the following issues and therefore. Defendant is entitled to summary adjudication as follows:
13
Plaintiffs First Cause of Action for Failure to Pay Minimum Wage fails as a matter
14
of law because:
15
(1) Primeritus provided a separate component of pay to Skip Tracers to
16
compensate them for rest periods and other nonproductive time;
17
(2) The separate amount Primeritus paid was more than sufficient to cover rest
18
breaks at their average hourly rate;
19
(3) The separate amount Primeritus paid was also more than sufficient to
20
cover other nonproductive time at the minimum wage; and
21
(4) The amount Primeritus paid for other nonproductive time was based on
22
Primeritus' reasonable estimates.
23
Plaintiffs Second Cause of Action for Failure to Timely Pay Wages fails as a matter
24
of law because it is derivative of Plaintiff s First Cause of Action;
25
Plaintiffs Third Cause of Action for Failure to Property Compensate for Rest
26
Periods fails as a matter of law because:
27
///
28
LITTLER MENDELSON. P.C. 4850-0553-2611.1 087308.1007 2.
7049 Cenru.y Park Easr
Sih 'loor
Los Angeres. CA B00B7.31D7
310 SS3.03aB
[PROPOSED] ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY ADJUDICATION
(I) Primeritus separately compensated Plaintiff and the Class for all rest
2 periods at or above their average hourly rate.
3 Plaintiffs Sixth Cause of Action for Violation of the Unfair Competition Law and
4 Business and Professions Code Section 17200 fails as a matter of law to the extent it is duplicative of
5 his First and Third Causes of Action; and
6 Plaintiffs Seventh Cause of Action for Civil Penalties under PAGA fails as a matter
7 of law to the extent it is duplicative of his First, Second, and Third Causes of Action.
8
9 IT IS SO ORDERED.
10
11 Dated:
HON. CHRISTOPHER E. KRUEGER
12 JUDGE OF THE SUPERIOR COURT
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'•'^^'7».''.Spt,!6a''s;'''^
Sth ^iDor
4850-0553-2611.1 087308.1007 3.
lot Angeles. CA SO0S7.310T
310 553.030S
[PROPOSED] ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY ADJUDICATION
Preview
FlLED/EMDOeSED JUL 1 5 2020 1 KEITH A. JACOBY, Bar No. 150233 kjacobv@littler.com Bv:. S Khorn Oe.puty Cic.'k 2 BRADLEY E. SCHWAN, Bar No. 246457 bschwan@littler.com 3 LITTLER MENDELSON, P.C. 2049 Century Park East 4 5th Floor Los Angeles, CA 90067.3107 5 Telephone: 310.553.0308 Fax No.: 310.553.5583 6 X NATHANIEL H. JENKINS, Bar No. 312067 7 njenkins@littler.com o 8 LITTLER MENDELSON, P.C. 500 Capitol Mall Suite 2000 LL- 9 Sacramento, CA 95814 Telephone: 916.830.7200 10 Fax No.: 916.561.0828 Attomeys for Defendant 12 PRIMERITUS FINANCIAL SERVICES, INC. 13 SUPERIOR COURT OF CALIFORNIA 14 COUNTY OF SACRAMENTO 15 JOHN BOUDREAU, an individual, on CaseNo. 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 NOTICE OF MOTION V. AND MOTION FOR SUMMARY 19 ADJUDICATION PRIMERITUS FINANCIAL SERVICES, 20 INC., A Delaware corporation; CHRIS Date: September 24, 2020 McGlNNESS, an individual; and DOES 1 Time: 9:00 a.m. 21 through 10, inclusive. Dept.: 54 Judge: Christopher E. Krueger 22 Defendants. Reservation No. 2519118 23 Complaint filed: December 27, 2018 First Amended Complaint filed: April 12, 2019 24 25 26 27 28 LITTLER MENDELSON, P.C. 4835-6767-2760.1 087308.1007 2048 Cenm-y Park E>ti DEFENDANT PRIMERITUS FINANCIAL SERVICES, INC.'S NOTICE OF MOTION AND MOTION FOR SUMMARY ADJUDICATION 1 TO PLAINTIFF AND HIS ATTORNEYS OF RECORD: 2 YOU ARE HEREBY NOTIFIED that on Thursday, September 24, 2020, at 9:00 a.m. 3 in Department 54 of this Court, located at 813 6th Street, Hall of Justice Building, Sacramento, 4 Califomia, Defendant PRIMERITUS FfNANClAL SERVICES, INC. will move, and hereby does 5 move this Court for summary adjudication in favor of PRIMERITUS FINANCIAL SERVICES, 6 fNC. and against Plaintiff JOHN BOUDREAU and for costs of suit incurred herein and such other 7 relief as may be just. 8 Defendant's motion is be made upon the grounds that Plaintiffs claims fail as a 9 matter of law. There is no triable issue of material fact as to how Plaintiff and the Class Members 10 were paid. Accordingly, Defendant seeks summary adjudication on Plaintiffs claims as follows: 11 Plaintiffs First Cause of Action for Failure to Pay Minimum Wage fails as a matter 12 of law because: 13 (1) Primeritus provided a separate component of pay to Skip Tracers to 14 compensate them for rest periods and other nonproductive time; 15 (2) The separate amount Primeritus paid was more than sufficient to cover rest 16 breaks at their average hourly rate; 17 (3) The separate amount Primeritus paid was also more than sufficient to 18 cover other nonproductive time at the minimum wage; and 19 (4) The amount Primeritus paid for other nonproductive time was based on 20 Primeritus' reasonable estimates. 21 Plaintiffs Second Cause of Action for Failure to Timely Pay Wages fails as a matter 22 of law because it is derivative of Plaintiff s First Cause of Action; 23 Plaintiffs Third Cause of Action for Failure to Property Compensate for Rest 24 Periods fails as a matter of law because: 25 (1) Primeritus separately compensated Plaintiff and the Class for all rest 26 periods at or above their average hourly rate. 27 Plaintiffs Sixth Cause of Action for Violation of the Unfair Competition Law and 28 Business and Professions Code Section 17200 fails as a matter of law to the extent it is duplicative of LITTLER MENDELSON, P.C. 4835-6767-2760.1087308.1007 2. 1049 CeiMU-J P M H E » H Sth ^loor Lot Angeles. CA 80067.3107 DEFENDANT PRIMERITUS FINANCIAL SERVICES, INC.'S NOTICE OF MOTION AND MOTION FOR 31D 553.0300 SUMMARY ADJUDICATION 1 his First and Third Causes of Action; and 2 Plaintiffs Seventh Cause of Action for Civil Penalties under PAGA fails as a matter 3 of law to the extent it is duplicative of his First, Second, and Third Causes of Action. 4 Defendant's motion is based upon this Notice of Motion, the Memorandum of Points 5 and Authorities, the Separate Statement of Undisputed Material Facts, the Declarations of Nathaniel 6 H. Jenkins, Christopher McGinness, and Michael P. Ward, and all of the exhibits attached thereto, 7 all of which are filed herewith, and all other supporting matters and materials. 8 Pursuant to Local Rule 1.06 (A), the court will make a tentative ruling on the merits 9 of this matter by 2:00 p.m., the court day before the hearing. The complete text of the tentative 10 rulings for the department may be downloaded off the court's website. If the party does not have 11 online access, they may call the dedicated phone number for the department as referenced in the 12 local telephone directory between the hours of 2:00 p.m. and 4:00 p.m. on the court day before the 13 hearing and receive the tentative ruling. If you do not call the court and the opposing party by 4:00 14 p.m. the court day before the hearing, no hearing will be held. 15 Dated: July 15, 2020 16 17 KEITH A. JACOBY 18 BRADLEY E. SCHWAN NATHANIEL H. JENKINS 19 LITTLER MENDELSON, P.C. Attomeys for Defendant 20 PRIMERITUS FINANCIAL SERVICES, INC. 21 22 23 24 25 26 27 28 4835-6767-2760.1 087308.1007 LITTLER MENBELSON, P.C. 2tllB Cenru.y ParK Eosr SIS sjoor Los Angslas. CA 000G7.3107 DEFENDANT PRIMERITUS FINANCIAL SERVICES, INC.'S NOTICE OF MOTION AND MOTION FOR 3tO SS3.03aB SUMMARY ADJUDICATION KEITH A. JACOBY, Bar No. 150233 kjacobv@littler.com BRADLEY E. SCHWAN, Bar No. 246457 bschwan@littler.com LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 Telephone: 310.553.0308 Fax No.: 310.553.5583 NATHANIEL H. JENKINS, Bar No. 312067 X njenkins@littler.com LITTLER MENDELSON, P.C. 0 500 Capitol Mall Suite 2000 '9 Sacramento, CA 95814 CO 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, [PROPOSED] ORDER GRANTING 18 DEFENDANT PRIMERITUS FINANCIAL SERVICES, INC.'S MOTION FOR 19 SUMMARY ADJUDICATION PRIMERITUS FINANCIAL SERVICES, 20 f N C , A Delaware corporation; CHRIS Date: September 24, 2020 McGlNNESS, an individual; and DOES 1 Time: 9:00 a.m. 21 through 10, inclusive. Dept.: 54 Judge: Christopher E. Krueger 22 Defendants. Reservation No. 2519118 23 Complaint filed: December 27, 2018 First Amended Complaint filed: April 12, 2019 24 25 26 7 LITTLER MENDELSON, P.C 2040 Ceniu.) Par)( EBSI Sirr =lDOr 4850-0553-2611.1 087308.1007 Los AngereS. CA 60007.3107 31D SS3.D308 [PROPOSED] ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY ADJUDICATION 1 [PROPOSED] ORDER 2 On , 2020, at 9:00 a.m. Department 54 of this Court, 3 located at 813 6th Street, Hall of Justice Building, Sacramento, Califomia, Defendant PRIMERITUS 4 FINANCIAL SERVICES, INC.'S ("Defendant") Motion for Summary Adjudication ("Motion"), 5 came on regularly for hearing in the above-captioned matter. 6 The Court, having read and considered the papers submitted both in support of and in 7 opposition to the Motion, and based upon the papers and pleadings on file in this matter as well as 8 oral argument, if any, of the parties, and GOOD CAUSE appearing therefore, 9 IT IS HEREBY ORDERED, ADJUDGED AND DECREED that Defendant has 10 shown by admissible evidence and reasonable inference therefrom, not contradicted by other 11 evidence and reasonable inferences, that there is no triable issue of any material fact with respect to 12 the following issues and therefore. Defendant is entitled to summary adjudication as follows: 13 Plaintiffs First Cause of Action for Failure to Pay Minimum Wage fails as a matter 14 of law because: 15 (1) Primeritus provided a separate component of pay to Skip Tracers to 16 compensate them for rest periods and other nonproductive time; 17 (2) The separate amount Primeritus paid was more than sufficient to cover rest 18 breaks at their average hourly rate; 19 (3) The separate amount Primeritus paid was also more than sufficient to 20 cover other nonproductive time at the minimum wage; and 21 (4) The amount Primeritus paid for other nonproductive time was based on 22 Primeritus' reasonable estimates. 23 Plaintiffs Second Cause of Action for Failure to Timely Pay Wages fails as a matter 24 of law because it is derivative of Plaintiff s First Cause of Action; 25 Plaintiffs Third Cause of Action for Failure to Property Compensate for Rest 26 Periods fails as a matter of law because: 27 /// 28 LITTLER MENDELSON. P.C. 4850-0553-2611.1 087308.1007 2. 7049 Cenru.y Park Easr Sih 'loor Los Angeres. CA B00B7.31D7 310 SS3.03aB [PROPOSED] ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY ADJUDICATION (I) Primeritus separately compensated Plaintiff and the Class for all rest 2 periods at or above their average hourly rate. 3 Plaintiffs Sixth Cause of Action for Violation of the Unfair Competition Law and 4 Business and Professions Code Section 17200 fails as a matter of law to the extent it is duplicative of 5 his First and Third Causes of Action; and 6 Plaintiffs Seventh Cause of Action for Civil Penalties under PAGA fails as a matter 7 of law to the extent it is duplicative of his First, Second, and Third Causes of Action. 8 9 IT IS SO ORDERED. 10 11 Dated: HON. CHRISTOPHER E. KRUEGER 12 JUDGE OF THE SUPERIOR COURT 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 '•'^^'7».''.Spt,!6a''s;'''^ Sth ^iDor 4850-0553-2611.1 087308.1007 3. lot Angeles. CA SO0S7.310T 310 553.030S [PROPOSED] ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY ADJUDICATION