Motion for Summary Judgment in BRITTNEE LOFTON VS. APEX LIFE SCIENCES LLC A DELAWARE COMPANY ET AL| Trellis.Law

On January 25, 2019 a Motion-Secondary was filed involving a dispute between Lofton, Brittnee, and Apex Life Sciences, Llc, Apex Life Sciences Llc A Delaware Company, Does 1 To 100, Inclusive, for OTHER NON EXEMPT COMPLAINTS in the District Court of San Francisco County.

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1 SUGG & PARACUELLOS, LLP
Wendy Sugg, Bar No. 223335
2 wendy@sugglaw.com
384 Forest Avenue, Suite 15 ELECTRONICALLY
3 Laguna Beach, CA 92651 F I L E D
Telephone: 949.260.9548 Superior Court of California,
4 County of San Francisco
Attorneys for Defendant 07/31/2020
5 APEX LIFE SCIENCES, LLC Clerk of the Court
BY: JUDITH NUNEZ
Deputy Clerk
6

8 SUPERIOR COURT OF THE STATE OF CALIFORNIA

9 COUNTY OF SAN FRANCISCO

11 BRITNEE LOFTON, individually, and on Case No. CGC-19-573175
behalf of other members of the general
12 public similarly situated and on behalf of
aggrieved employees pursuant to the MEMORANDUM OF POINTS AND
13 Private Attorneys General Act (“PAGA”); AUTHORITIES IN SUPPORT OF
DEFENDANT’S MOTION FOR
14 Plaintiff, SUMMARY JUDGMENT, OR IN THE
ALTERNATIVE, SUMMARY
15 v. ADJUDICATION

16 APEX LIFE SCIENCES, LLC., a [Notice of Motion and Motion; Appendix of
Delaware company; and Does 1 through Declarations and Evidence; Separate Statement;
17 100, inclusive; and [Proposed] Order filed concurrently
herewith]
18 Defendants.

19 Date: October 16, 2020
Time: 9:30 a.m.
20 Dept.: 302

21
Complaint Filed: January 25, 2019
22 FAC Filed: February 26, 2019
Trial Date: November 16, 2020
23

28
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MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT
1 TABLE OF CONTENTS
2 Page
3 I. INTRODUCTION .............................................................................................................. 6
4 II. FACTUAL BACKGROUND ............................................................................................. 7
A. Plaintiff Was A Temporary Employee Who Worked Unsupervised By
5 Apex ........................................................................................................................ 7
6 B. Apex Provided Plaintiff With Compliant Policies, An Opportunity To
Record All Time Worked And Take Breaks, And An Opportunity To
7 Report Any Problems .............................................................................................. 8
C. Plaintiff Did Not Inform Apex Of Any Unrecorded time, Missed Breaks,
8
Or Business Expenses ........................................................................................... 11
9 III. SUMMARY JUDGMENT IS APPROPRIATE IN THIS ACTION ................................ 12
IV. PLAINTIFF’S CLAIM FOR FAILURE TO PAY WAGES FAILS BECAUSE
10 APEX HAD NO KNOWLEDGE OF ANY ALLEGED OFF-THE-CLOCK
WORK .............................................................................................................................. 12
11
V. PLAINTIFF’S MEAL AND REST PERIOD CLAIMS FAIL ......................................... 14
12 A. Employers Are Only Required To Make Meal And Rest Periods Available ....... 14
13 B. Plaintiff Was Made Aware Of Apex’s Meal And Rest Period Policies,
Could Report Missed Breaks, And Did Not Put Apex On Notice Of Any
14 Missed Breaks ....................................................................................................... 17
VI. PLAINTIFF’S CLAIM FOR ALLEGED FAILURE TO REIMBURSE
15 BUSINESS EXPENSES FAILS ....................................................................................... 19
16 A. Plaintiff’s Claim Is Barred By The Statute of Limitations ................................... 19
B. Plaintiff Did Not Incur Any Necessary And Reasonable Business Expenses ...... 20
17 VII. APEX’S GOOD-FAITH DEFENSES TO PLAINTIFF’S CLAIMS PRECLUDE
ANY RECOVERY UNDER LABOR CODE SECTIONS 200-203 ................................ 21
18
A. Plaintiff Cannot Recover Waiting Time Penalties When There Is No
19 Willful Violation ................................................................................................... 21
VIII. THERE IS NO INDEPENDENT RECOVERY FOR PLAINTIFF’S LABOR
20 CODE SECTION 226 CLAIM ......................................................................................... 22
21 IX. PLAINTIFF’S CAUSE OF ACTION IS BARRED BY THE AFFIRMATIVE
DEFENSE OF UNCLEAN HANDS ................................................................................ 22
22 X. CONCLUSION ................................................................................................................. 23
23

28
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MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT
1 TABLE OF AUTHORITIES
2 Page(s)
3 Cases
4 Amaral v. Cintas Corp. No. 2,
5 163 Cal.App.4th 1157 (2008) ...................................................................................................21

6 Armenta v. Osmose, Inc.,
135 Cal.App.4th 314 (2005) .....................................................................................................21
7
Brantley v. Pisaro,
8 42 Cal.App.4th 1591 (1996) .....................................................................................................12
9 Brinker Restaurant Corp. v. Superior Court,
10 53 Cal.4th 1004 (2012) ...................................................................................................6, 15, 18

11 Brown v. Ralphs Grocery Co.,
28 Cal.App.5th 824 (2018) .......................................................................................................14
12
Caliber Bodyworks, Inc. v. Sup. Ct.,
13 134 Cal.App.4th 365 (2005) ...............................................................................................13, 20
14 Cochran v. Schwan’s Home Services, Inc.,
228 Cal.App.4th 1137 (2014) ...................................................................................................21
15

16 Dailey v. Sears, Roebuck & Co.,
214 Cal.App.4th 974 (2013) .....................................................................................................15
17
David v. Queen of Valley Med. Ctr.,
18 51 Cal.App.5th 653 (2020) .................................................................................................18, 19
19 Derosa v. Transamerica Title Ins. Co.,
213 Cal.App.3d 1390 (1989).....................................................................................................23
20
De Simas v. Big Lots Stores, Inc.,
21
No. C06-6614, 2007 WL 686638 (N.D. Cal. March 2, 2007) ..................................................13
22
Donohue v. AMN Services, LLC,
23 29 Cal.App.5th 1068 (2018) ...............................................................................................18, 19

24 Forrester v. Roth’s I.G.A. Foodliner, Inc.,
646 F.2d 413 (9th Cir. 1981).....................................................................................................13
25
Grande v. Eisenhower Medical Cernter,
26
44 Cal.App.5th 1147 (2000) .....................................................................................................16
27

28
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MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT
1 Green v. Lawrence Serv. Co.,
No. LA CV-12-06155 JAK(VBKx), 2013 WL 3907506 (C.D. Cal. Jul. 23,
2 2013) .........................................................................................................................................16
3 Jones v. Tracy School Dist.,
4 27 Cal.3d 99 (1980) ..................................................................................................................13

5 Jong v. Kaiser Foundation Health Plan, Inc.,
226 Cal.App.4th 391 (2014) .....................................................................................................13
6
Kahn v. Dunn-Edwards Corp.,
7 19 Cal.App.5th 804 (2018) .......................................................................................................14
8 Maldonado v. Epsilon Plastics, Inc.,
9 22 Cal.App.5th 1308 (2018) .....................................................................................................22

10 Marshak v. Ballesteros,
72 Cal.App.4th 1514 (1999) .....................................................................................................12
11
Moreno v. Autozone,
12 No. C05-04432, 2007 WL 1650942 (N.D. Cal. June 5, 2007) .................................................13
13 Morillion v. Royal Packing Co.,
22 Cal.4th 575 (2000) ...............................................................................................................13
14

15 Murphy v. Kenneth Cole Productions,
40 Cal.4th 1094 (2007) .............................................................................................................15
16
Plaisted v. The Dress Barn, Inc.,
17 No. 2:12-cv-016979-ODW(SHx), 2013 WL 300913 (C.D. Cal. Jan. 25, 2013) ......................16
18 Porch v. Masterfoods USA, Inc.,
685 F.Supp.2d 1058 (C.D. Cal. 2008) ......................................................................................16
19
Reece v. Unitrin Auto & Home Inc. Co.,
20
No. 5:11-cv-03960 EJD, 2013 WL 245452 (N.D. Cal. Jan. 22, 2013) .....................................15
21
Serrano v. Aerotek, Inc.,
22 36 Cal.App.5th 733 (2018) .......................................................................................................16

23 Stuart v. RadioShack Corp.,
641 F.Supp.2d 901 (N.D. Cal. 2009) ........................................................................................21
24
Thomas v. Home Depot USA Inc.,
25
527 F.Supp.2d 1003 (2007).................................................................................................14, 20
26
Thompson v. Halvonik,
27 36 Cal.App.4th 657 (1995) .......................................................................................................12

28
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MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT
1 Turner v. Anheuser Busch, Inc.,
7 Cal.4th 1238 (1994) ...............................................................................................................12
2
White v. Starbucks Corp.,
3 497 F.Supp.2d 1080 (N.D. Cal. 2007) ................................................................................13, 18
4
Statutes
5
Civil Code § 340(a) ...................................................................................................................14, 20
6
Civil Code § 3517 ...........................................................................................................................18
7
Code of Civil Procedure § 437c(f)(1) .............................................................................................12
8
Code of Civil Procedure § 437c(o) .................................................................................................12
9
Evidence Code § 622 ......................................................................................................................18
10

11 Evidence Code § 623 ......................................................................................................................17

12 Labor Code § 203 ......................................................................................................................21, 22

13 Labor Code § 2699(a) .....................................................................................................................20

14 Labor Code § 2699(f) ......................................................................................................................20

15 Labor Code § 2802 ..........................................................................................................................20
16 Title 8 Cal. Code Regs. § 13520 .....................................................................................................22
17

28
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MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT
1 I. INTRODUCTION

2 In this action for penalties pursuant to the Private Attorney General Act (2699), Plaintiff

3 Brittnee Lofton (“Plaintiff”) has sued her former employer, temporary staffing company Apex

4 Life Sciences, LLC (“Apex”) for alleged violations of Labor Code sections for Apex’s failure to

5 pay all meal period wages and rest break wages, failure to properly calculate and pay all

6 minimum and overtime wages, failure to provide accurate wage statements, failure to pay all

7 wages due and owing upon termination of employment, and failure to reimburse all necessary

8 business expenses. As discussed below, Plaintiff’s own admissions demonstrate that herꞏclaims

9 are meritless and Plaintiff is not an aggrieved employee who may maintain this action.

10 Indeed, Plaintiff’s own admissions prove she was provided with the opportunity to timely

11 take all meal and rest periods in accordance with the requirements of California law and that she

12 was never prevented from taking a compliant break by Apex. As the California Supreme Court

13 has explained in Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1040-41, an

14 employer need only make meal periods and breaks available to employees; it need not ensure that

15 they are taken. There is liability only if the employer prevents an employee from taking a meal

16 period or break, which did not happen here as Apex personnel were not even on site with Plaintiff

17 and Plaintiff admits that no one from Apex interfered with her breaks.

18 Moreover, Plaintiff was paid for all hours she reported working and Apex did not know

19 and had no reason to know of any unrecorded time. Plaintiff’s claims for alleged unpaid hours

20 worked are based on her contention that she willingly showed up early to get ready for work

21 without being told to and never recorded that time, and this in turn made her meal periods start

22 later than the end of her claimed fifth hour of work. Plaintiff’s decision to arrive early to work

23 without notice to Apex is not a valid basis for an unpaid wages or break claim.

24 Plaintiff’s claim for allegedly unreimbursed business expenses – the purchase of a pair of

25 sneakers – is barred by the statute of limitations as the expense was incurred outside of the one

26 year period for which penalties under the PAGA may be sought. Further, Plaintiff has admitted

27 that no one told her to purchase anything for the job and she never informed Apex of her

28 purchase.
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MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT
1 Here, it is undisputed that Apex has fully compliant timekeeping, reimbursement, and

2 break policies applying to temporary employees on their assignments for clients, and that Apex

3 gave these policies to Plaintiff before she commenced her assignments. Moreover, it is also

4 undisputed that Apex never said or did anything that was inconsistent with what was set forth in

5 those policies. More specifically, no one from Apex ever told Plaintiff that she could not take

6 meal periods in compliance with the terms set forth in the policy, that she could not record all

7 time worked as she was directed to do by the policy, and that she could not submit a request for

8 expense reimbursement as provided by the policy.

9 Not unimportantly, Plaintiff never asked Apex any questions about these policies, despite

10 being instructed that she should do so. And although Apex’s policies expressly instruct

11 employees to inform Apex if they are ever prevented from taking a compliant meal period or

12 break, Plaintiff has admitted that she never reported any concerns to Apex. Not once. What

13 Plaintiff has admitted is that she never read any of these policies.

14 Finally, because Plaintiff’s final pay and wage statement claims are derivative of her

15 claims for failure to pay wages and failure to provide meal and rest periods, those claims fail as

16 well. For all of these reasons and those discussed below, Apex is entitled to summary judgment

17 on all of Plaintiffs claims. Indeed, under similar circumstances, courts have not hesitated to award

18 summary judgment to employers.

19 II. FACTUAL BACKGROUND

20 A. Plaintiff Was A Temporary Employee Who Worked Unsupervised By Apex

21 Plaintiff Brittnee Lofton was employed by Defendant Apex Life Sciences, LLC from

22 March 14, 2017 until December 20, 2017. (Facts 1, 3.) Apex Life Sciences is a staffing company

23 and placed Lofton on assignment at the University of California San Francisco (“UCSF”) as a

24 temporary employee. (Fact 2.) In her First Amended Complaint (“FAC”), Plaintiff brings her

25 action pursuant to the Private Attorneys General Act of 2004 (“PAGA”) for violations of Labor

26 Code sections 201, 202, 203, 204, 226(a), 226.3, 226.7, 510, 512(a), 1174(d), 1194, 1197, 1197.1,

27 1198, 2800, and 2802. (Sugg Decl. at Ex. 8 (FAC, ¶¶ 1, 13).) Plaintiff alleges that Apex Life

28 Sciences violated the labor laws by: (1) failing to pay all meal period wages and rest break wages;
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MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT
1 (2) failing to properly calculate and pay all minimum and overtime wages; (3) failing to provide

2 accurate wage statements; (4) failing to pay all wages due and owing upon termination of

3 employment; and (5) failing to reimburse all necessary business expenses. (Id., ¶¶ 3, 18-29.)

4 Plaintiff worked as an Animal Technician at the UCSF site. (Facts 1 - 2.) There was no

5 representative from Apex Life Sciences present at Plaintiff’s work location and her work at UCSF

6 was not supervised by any on-site Apex employee. (Fact 11). Nor was her work directly

7 monitored by a UCSF employee. (Fact 12.) Plaintiff admits that she worked “independently.”

8 (Fact 12.)

9 B. Apex Provided Plaintiff With Compliant Policies, An Opportunity To Record

10 All Time Worked And Take Breaks, And An Opportunity To Report Any

11 Problems

12 At the time she was hired, Plaintiff was provided with Apex Life Sciences’ employee

13 handbook, which contained a meal and rest break policy as well as a policy regarding the

14 Company’s timekeeping procedures. (Fact 9.) She was also provided with and executed an

15 employee agreement that detailed the meal and rest policy and her obligation to report any days

16 when she was not provided with the opportunity to take her breaks. (Facts 6, 9.)

17 Apex Life Sciences handbook meal and rest break policy provided, in pertinent part, as

18 follows:

19 Meal and Break Periods

20 Apex Life Sciences expects contract employees to take meal and rest breaks in accordance

21 with applicable law. Questions regarding such requirements should be directed to Apex Life

22 Sciences Contractor Care at 866-612-2739. If contract employee believes that s/he is not being

23 provided with appropriate meal and rest breaks during his or her temporary assignment, contract

24 employee must notify Apex Life Sciences immediately by contacting Contractor Care. (Mccauley

25 Decl. at Ex. 1 at p.26, 63-64.)

26 Meal and Rest Breaks

27 The Company complies with federal and state legal requirements concerning meal and

28 rest breaks. The Company recognizes that employees perform at their best when they have the
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MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT
1 rest and nourishment they need. This policy explains when the Company expects employees to

2 take meal and rest breaks. (Id.)

3 Meal Breaks

4 The Company provides at least a 30-minute meal period to employees who work more

5 than five hours and a second 30-minute meal period to employees who work more than 10 hours

6 in a workday, unless they have elected to waive a meal period in accordance with the Company’s

7 policy and state law. Employees are relieved of all of their duties during meal periods and are

8 allowed to leave the premises. (Id.)

9 Rest Breaks

10 Employees are authorized and permitted to take a 10-minute paid rest break for every four

11 hours worked, or major fraction thereof. (Id. at p.64-65.)

12 RESPONSIBILITIES

13 Supervisors are responsible for administering their department’s meal and rest breaks.

14 Any non-exempt employee who is not provided with a meal period or authorized and permitted to

15 take a rest break pursuant to the terms of this Policy is immediately entitled to a meal or rest

16 break premium. … Employees are responsible for reporting to their supervisor any meal break

17 that was not provided or any rest break not authorized and permitted where the supervisor would

18 have no reason to otherwise know of this fact. Any employee who feels that he or she is owed a

19 premium as a result of this Policy, but has not received the premium should report the missing

20 premium immediately to his or her supervisor.

21 (Id. at 65.)

22 The Apex Life Sciences handbook also contained the following policy regarding

23 recording all hours worked:

24 Time Entry

25 A. Contract employees shall report to the Company all hours worked each week by

26 entering those hours into the Company’s web-based time entry system, MyApex.

27 B. Hours worked must be entered into MyApex by 11:59 PM ET each Sunday. Failure to

28 enter hours may result in a delay of wage computation.
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MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT
1 C. If problems are encountered with MyApex, please notify the Company by submitting a

2 support ticket via the “Support Ticket” link on the MyApex homepage. Your branch

3 representative can then assist you with getting your hours entered and thus paid.

4 D. Be sure to enter any accrued expenses into MyApex.

5 E. It is a violation of the Company’s policy for anyone to instruct or encourage another

6 employee to work “off the clock,” to incorrectly report hours worked, or to alter

7 another employee’s time records. If any employee is directed or encouraged to

8 incorrectly report hours worked, or to alter another employee’s time records, he or she

9 should report the incident immediately to a supervisor or Human Resources.

10 F. For overtime pay calculation purposes, the workday begins at 12:00 AM and ends at

11 11:59 PM. The workweek begins at 12:00 AM Monday and ends at 11:59 PM the

12 following Saturday.

13 The proper and prompt recording of time in our electronic timekeeping system is

14 extremely important to the Company.

15 (Fact 9); (Mccauley Decl. at Ex. 1 at p.25-26).

16 At the time of her hire in March 2017, Plaintiff was also provided with the MyApex

17 timekeeping manual, which informed her how to record her time worked, including meal periods.

18 (Fact 9.) Apex required employees to record their own hours worked in the MyApex system,

19 which was available to employees 24 hours a day so that they could record time at their

20 convenience. (Fact 4.)

21 Plaintiff was required to and did record her hours worked, including start and stop times

22 each day and time at which she took her meal period. (Fact 10.) Plaintiff was to record her time

23 by logging into the MyApex system and recording her own hours worked and her meal periods.

24 (Fact 4.) Plaintiff often failed to enter her time by the weekly deadline and Apex employees

25 would regularly contact her to request that she provide them with her hours worked. (Fact 10.)

26 In conjunction with reporting her time worked and meal periods, Plaintiff was required to

27 verify the accuracy of the information she provided. (Facts 13, 23.) She certified to Apex for each

28 of payroll periods ending November 18, 2017, November 25, 2017, December 2, 2017, December
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MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT
1 16, 2017, and December 23, 2017, that her entered time “accurately reflects all of the hours I

2 worked this pay period.” (Fact 14.) This was for 5 of the 6 paychecks issued during the applicable

3 PAGA period. For the only other pay period ending November 11, 2017, Lofton did not enter her

4 own hours into MyApex, but informed Apex directly of her hours worked and meal period times.

5 (Fact 10.; Mccauley Decl. at Ex. 5 (APEX000168-000169).) In addition to those weekly

6 certifications, she expressly admitted that she did not notify Apex of any off-the-clock work or

7 time for which she was not compensated. (Facts 15, 25.) The MyApex Time Management

8 System: Contract Employee Guide included specific instructions for employees to certify whether

9 all of their hours worked were correct and whether they had been provided with the opportunity

10 to timely take all meal periods and breaks. (Fact 9.; Mccauley Decl. at Ex. 2 (APEX001249).)

11 As a part of those certifications of hours worked, Plaintiff also certified that she received

12 the opportunity to take all of her breaks and did not report any missed or shortened breaks.

13 (Fact 23.) She certified to Apex for each of payroll periods ending November 18, 2017,

14 November 25, 2017, December 2, 2017, December 16, 2017, and December 23, 2017, that Apex

15 “provided me with the meal periods and/or appropriate breaks on each workday reflected on this

16 time card.” (Fact 24). Plaintiff did not inform anyone at Apex Life Sciences that her certifications

17 were not true. (Fact 15.)

18 C. Plaintiff Did Not Inform Apex Of Any Unrecorded Time, Missed Breaks, Or

19 Business Expenses

20 During her employment, Plaintiff never made any complaints to Apex regarding any of

21 the issues in the FAC. (Facts 8, 25.) She never made any complaints about Apex purportedly

22 failing to: pay overtime, provide the opportunity to take timely and full meal and rest breaks,

23 provide accurate wage statements, reimburse business expenses, or pay her in full when her

24 position concluded. (Facts 8, 25.) She recorded her own time worked and did not inform anyone

25 at Apex Life Sciences that any of the time entries she certified were not correct or that her

26 certifications regarding her time were untruthful. (Fact 15.) Nor did she inform anyone at Apex

27 Life Sciences that the time she recorded for her meal periods was incorrect or that her

28 certification that she was provided with meal periods and/or appropriate breaks for each day she
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MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT
1 worked was unthruthful. (Fact 15.)

2 III. SUMMARY JUDGMENT IS APPROPRIATE IN THIS ACTION

3 Employment claims are properly subject to motions for summary judgment. Turner v.

4 Anheuser Busch. Inc. (1994) 7 Cal.4th 1238, 1252. On a defendant’s motion for summary

5 judgment, the defendant’s burden is to establish a complete defense or to negate each of the

6 plaintiff’s theories of recovery. A defendant meets this burden by showing that one or more

7 elements of the cause of action cannot be established. Once the defendant meets that burden, the

8 burden is on the plaintiff to show a triable issue of fact. C.C.P § 437c(f)(1), 437c(o); Marshak v.

9 Ballesteros (1999) 72 Cal.App.4th 1514, 1518. “A cause of action cannot be established if the

10 undisputed facts presented by the defendant prove the contrary of the plaintiff’s allegations as a

11 matter of law.” Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1597. When the defendant’s

12 supporting evidence establishes the “absence of an essential element of the plaintiff’s case,” and

13 “the plaintiffs opposing documentation does not show ... that an essential element exists,

14 summary judgment should be granted.” Thompson v. Halvonik (1995) 36 Cal.App.4th 657, 661.

15 IV. PLAINTIFF’S CLAIM FOR FAILURE TO PAY WAGES FAILS BECAUSE APEX

16 HAD NO KNOWLEDGE OF ANY ALLEGED OFF-THE-CLOCK WORK

17 In support of her allegations that Apex failed to pay her minimum wage and overtime,

18 Plaintiff alleges that, “As a pattern and practice, Defendants failed to compensate Plaintiff and

19 other aggrieved current and former employees for all hours worked, resulting in a failure to pay

20 all minimum wages and overtime wages, where applicable.” (See Complaint at ¶ 19.) Though her

21 complaint contains only a bare minimum allegation, in her sworn testimony Plaintiff revealed that

22 she did not record all of her hours worked and therefore believes that Apex owes her additional

23 compensation. (Sugg Decl., Ex. 9 (Lofton Depo. at 25:5-21). Thus, Plaintiff’s theory of liability

24 appears to be an “off-the-clock” work claim.

25 The applicable Industrial Welfare Commission (“IWC”) wage order, Wage Order 4,

26 defines “hours worked” as the “time during which an employee is subject to the control of an

27 employer, and includes all the time the employee is suffered or permitted to work, whether or not

28 required to do so. . .” The words “suffer” and “permit” have been interpreted to mean “with
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MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT
1 knowledge of the employer.” Jong v. Kaiser Foundation Health Plan, Inc., (2014) 226

2 Cal.App.4th 391, 395; Forrester v. Roth’s I.G.A. Foodliner, Inc., 646 F.2d 413, 414 (9th Cir.

3 1981).

4 An employee is entitled to compensation only for those hours of work for which the

5 employer had actual or constructive knowledge. See, e.g., Morillion v. Royal Packing Co. (2000)

6 22 Cal.4th 575, 585; Jong, 226 Cal.App.4th at 395; Forrester, 646 F.2d at 414; White v. Starbucks

7 Corp., 497 F.Supp.2d 1080, 1084 (N.D. Cal. 2007). Thus, only an employer who knows or should

8 have known of hours worked by an employee must comply with minimum wage and overtime

9 compensation requirements. Jong, 226 Cal.App.4th at 399 (employer’s motion for summary

10 judgment regarding employee’s off-the-clock overtime claim was properly granted by trial court

11 because employee failed to present evidence employer was aware of employee’s unreported

12 overtime work); Forrester, 646 F.2d at 414 (an off-the-clock claim cannot proceed where an

13 employer has no knowledge that an employee is engaging in [uncompensated] overtime work and

14 where the employee fails to notify the employer or deliberately prevents the employer from

15 acquiring knowledge of the overtime work); White, 497 F.Supp.2d at 1084.

16 A cause of action for unpaid wages accrues when the wages first become legally due, i.e.,

17 on the regular payday for the pay period in which the employee performed the work; when the

18 work is continuing and the employee is therefore paid periodically (e.g., weekly or monthly) a

19 separate and distinct cause of action accrues on each payday, triggering on each occasion the

20 running of a new period of limitations. See Jones v. Tracy School Dist. (1980) 27 Cal.3d 99, 105-

21 106. For purposes of her PAGA claim, the only time period at issue here are those pay periods

22 that fall within the applicable one-year statute of limitations. Cal. Civil Code section 340(a)

23 imposes a one-year statute of limitations upon “[a]n action upon a statute for a penalty or

24 forfeiture, if the action is given to an individual, or to an individual and the state, except if the

25 statute imposing it prescribes a different limitation.” The civil penalties that Plaintiff seeks to

26 recover under PAGA are a “penalty” within the meaning of section 340(a). See Caliber

27 Bodyworks, Inc. v. Sup. Ct. (2005) 134 Cal.App.4th 365, 374-76; Moreno v. Autozone, No. C05-

28 04432, 2007 WL 1650942, at *2-4 (N.D. Cal. June 5, 2007); De Simas v. Big Lots Stores, Inc.,
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MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT
1 No. C06-6614, 2007 WL 686638, at *3-4 (N.D. Cal. March 2, 2007). Accordingly, a one-year

2 statute of limitations will apply unless PAGA “prescribes a different limitation.” Civil Code

3 § 340(a). Esparza v. KS Inds., LP, (2017) 13 Cal.App.5th 1228, joined a slate of recent California

4 appellate decision that have likewise strictly construed PAGA’s pre-filing requirements, see,

5 e.g., Brown v. Ralphs Grocery Co., (2018) 28 Cal.App.5th 824, and Khan v. Dunn-Edwards

6 Corp., (2018) 19 Cal.App.5th 804. Accordingly, Plaintiff may not seek penalties for alleged

7 violations of the Labor Code that occurred outside of a one-year period prior to her PAGA claim.

8 Thomas v. Home Depot USA Inc., 527 F.Supp.2d 1003, 1008 (N.D. Cal. 2007).

9 As in Jong and White, Plaintiff cannot submit evidence that Apex had actual or

10 constructive knowledge that she performed any work for which Apex failed to compensate her for

11 the time period November 9, 2017 through the end of her employment on December 20, 2017.

12 Instead, all of the evidence indicates that Apex fully compensated Plaintiff for all work it had

13 actual or constructive knowledge she performed. As noted above, Apex’s policy was to prohibit

14 off-the-clock work. (Facts 4-5.) Lofton was required to accurately record her time and verify its

15 accuracy. (Facts 4, 13). She provided her time to Apex or directly recorded it in MyApex.

16 (Facts 4, 10.) She also certified to Apex for each of payroll periods ending November 18, 2017,

17 November 25, 2017, December 2, 2017, December 16, 2017, and December 23, 2017, that her

18 entered time “accurately reflects all of the hours I worked this pay period.” (Fact 14). In addition

19 to those weekly certifications, she expressly admitted that she did not notify Apex of any off-the-

20 clock work or time for which she was not compensated. (Fact 8.) Thus, there is no evidence Apex

21 had actual or constructive knowledge that Plaintiff performed work for which she was not

22 compensated. Because there is no evidence that Apex failed to properly compensate her for all

23 work performed, Plaintiff’s first cause of action on the basis of failure to pay all wages due,

24 including minimum and overtime wages, fails.

25 V. PLAINTIFF’S MEAL AND REST PERIOD CLAIMS FAIL

26 A. Employers Are Only Required To Make Meal And Rest Periods Available

27 Labor Code Section 512 provides, in pertinent part, that “[a]n employer may not employ

28 an employee for a work period of more than five hours per day without providing the employee
- 14 -
MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT
1 with a meal period of not less than 30 minutes.” The California Supreme Court clarified in

2 Brinker, 53 Cal.4th at 1034, that the requirement of an employer to “provide” a meal period

3 merely requires the employer to “relieve the employee of all duty for the designated period, but

4 [not to] ensure that the employee does no work.” Such a duty is satisfied by notifying the

5 employee of the right to take a meal period and to “relinquish any employer control over the

6 employee and how he or she spends the [break] time.” Id. at 1038-39. In other words, employers

7 need only give employees a bona fide opportunity to stop working for thirty minutes and be free

8 of employer control during that period. Employees may, at their option, work through part or all

Case Info

Judge

Samuel K. Feng Track Judge’s New Case

Case No.

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Document Filed Date

July 31, 2020

Case Filing Date

January 25, 2019

County

Parties

APEX LIFE SCIENCES, LLC Defendant
APEX LIFE SCIENCES LLC A DELAWARE COMPANY Defendant
DOES 1 TO 100, INCLUSIVE Defendant
DOYEL, DAVID Other
HAN, DOUGLAS Attorneys for Plaintiffs
HAN, DOUGLAS Attorney for the Plaintiff
LOFTON, BRITTNEE Plaintiff
SUGG, WENDY Attorney for the Defendant
Arsine Grigoryan Attorneys for Plaintiffs
Shunt Tatavos-Gharajeh Attorneys for Plaintiffs
Michael Beck Attorneys for Plaintiffs
Julia Trankiem Attorneys for Plaintiffs
Daniel Park Attorneys for Plaintiffs

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Motion-Secondary: BRITTNEE LOFTON VS. APEX LIFE SCIENCES LLC A DELAWARE COMPANY ET AL

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