Motion to Strike Initial Pleading in JACOB LOPEZ VS ROSENDIN ELECTRIC INC| Trellis.Law

On April 17, 2018 a Hearing was filed involving a dispute between Lopez Jacob, Williams Brian, and Rosendin Electric Inc., for Other Employment Complaint Case (General Jurisdiction) in the District Court of Los Angeles County.

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Edwin Aiwazian (SBN 232943)
Arby Aiwazian (SBN 269827)
Tara Zabehi (SBN 314706)
Daniel J. Kramer (SBN 314625)
LAWYERS for JUSTICE, PC FILED
410 West Arden Avenue, Suite 203 Superior Gouri ef California
Glendale, California 91203 County of Fas Anaeles
Tel: (818) 265-1020 / Fax: (818) 265-1021 MAR 02 2020

Attorneys for Plaintiffs Sherri R. CarfergExecuave UmiceriClerk of Court
By. zac Deputy
Isaac Love

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - SPRING STREET COURTHOUSE
10
JACOB LOPEZ, BRIAN WILLIAMS, Case No.: BC702388
11
LAWYERS /or JUSTICE, PC

individually, and on behalf of other members of
410 West Arden Avenue, Suite 203

the general public similarly situated; Honorable Maren E. Nelson
Glendale, California 91203

12 Department SSC17
Plaintiff,
13 CLASS ACTION
VS.
14 REQUEST FOR JUDICIAL NOTICE IN
ROSENDIN ELECTRIC, INC., a California SUPPORT OF PLAINTIFFS’
15 corporation; and DOES | through 100, OPPOSITION TO DEFENDANT’S
inclusive, MOTION TO STRIKE CLASS
16 ALLEGATIONS
Defendants.
17 [Filed Concurrently with Opposition of
Defendant’s Motion to Strike Class
Allegations and Declaration of Daniel J.
Kramer]

Date: April 6, 2020
Time: 9:00 a.m.
Department: SSC17

Complaint Filed: April 17, 2018
FAC Filed: June 4, 2018
SAC Filed: December 12, 2018
Jury Trial Date: None Set

REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION FOR
CLASS ALLEGATIONS
TO THE HONORABLE COURT, ALL PARTIES, AND THEIR ATTORNEYS OF

RECORD:

Plaintiffs Jacob Lopez and Brian Williams (“Plaintiffs”) hereby request that the Court take

judicial notice pursuant to California Evidence Code § 452 of the following documents:

1. A true and correct copy of the Order Remanding Action, issued by the United States

District Court, Central District of California, dated June 26, 2018, in the matter of Lopez v.

Rosendin Electric, Inc., Case No. 2:18-cv-05074-FMO-JEM, attached hereto as EXHIBIT

Pursuant to Evidence Code § 452(d), EXHIBIT 1 is properly subject to judicial notice

10 because it is the record of the court of record of the United States. (See Evid. Code§ 452(d)

11 [permitting judicial notice of[rlecords of (1) any court of this state or (2) any court of record of
for JUSTICE, PC
410 West Arden Avenue, Suite 203

12 the United States .. . .”]; see also, Aaronoff v. Martinez-Senfiner (2006) 136 Cal.App.4th 910, 918
Glendale, California 91203

13 [holding judicial notice of “any court record” is proper].)

14 2. A true and correct copy of Industrial Wage Commission, Wage Order No. 16-2001.

15 attached hereto as EXHIBIT 2.
LAWYERS

16 Pursuant to Evidence Code § 452(b), EXHIBIT 2 is properly subject to judicial notice

17 because it is a regulation issued by or under the authority of a public entity in the United States.
18 (See Evid. Code§ 452(b) [permitting judicial notice of “[rJegulations and legislative enactments

19 issued by or under the authority of the United States or any public entity in the United States.”]:

20 see also, Rodriguez v. E.M.E., Inc. (2016) 246 Cal.App.4th 1027, 1036 fn. 4 [holding judicial

21 notice of Wage Order 16-2001 “and the related DLSE opinion letter” is proper].)

Ze 3. A true and correct copy of the Opinion Letter No. 2001.09.17 drafted by the Division of

23 Labor Standards Enforcement (“DLSE”) as obtained from the DLSE’s website on February

24 27, 2020, attached hereto as EXHIBIT 3.

25 Pursuant to Evidence Code § 452(c), EXHIBIT 3 is properly subject to judicial notioce

26 because it is an official act of the judicial deparement of the state of California. (See Evid. Code§
2 452(c) [permitting judicial notice of “official acts of the legislative, executive, and judicial
28 departments of the United States and of any state of the United States.”]; see also, Kao v. Holiday

REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION FOR
CLASS ALLEGATIONS
(2017) 12 Cal.App.5th 947, 959 fn. 4 [court granted plaintiff's request for judicial notice of DLSE

opinion letters and related materials]; Rodriguez v. E.M.E., Inc. (2016) 246 Cal.App.4th 1027.

1036 fn. 4 [holding judicial notice of Wage Order 16-2001 “and the related DLSE opinion letter”

is proper].) Moreover, “while not controlling upon the courts, by reason of their authority” DLSE

opinion letters “do constitute a body of experience and informed judgement to which courts and

litigants may properly resort for guidance.” Brinker Restaurant Corp. v. Superior Court (2012)

53 Cal.4th 1004, 1029, fn. 11.

4. A true and correct copy of the trial court order denying the motion for summary

adjudication issued by the Superior Court of Los Angeles County in Shields v. Sec. Paving

10 Co., Inc., Case No. BC492828, 2017 WL 8890849 attached hereto as EXHIBIT 4.

11 Pursuant to Evidence Code § 452(d), EXHIBIT 4 is properly subject to judicial notice
for JUSTICE, PC
410 West Arden Avenue, Suite 203

12 because it is the records of a California court. (See Evid. Code§ 452(d) [permitting judicial notice
Glendale, California 91203

13 of [records of (1) any court of this state or (2) any court of record of the United States . . . .”}: see

14 also, Mack v. State Bar of California (2001) 92 Cal.App.4th 957, 961 [holding judicial notice of
LAWYERS

15 “the records of a California court” is proper].)

16 This request is made on the grounds that the foregoing document is a proper subject for

17 judicial notice because it is a record of a court of this state, and its contents are not subject to
18 reasonable dispute and are capable of accurate and ready determination by resort to sources whose

19 accuracy cannot reasonably be questioned.

20 Dated: March 2, 2020 LAWYERS for JUSTICE, PC

21 / é L/ } ‘ wr
J we
li ~

22 By: ALL FnKX
Daniel J. Kramer
23 Attorneys for Plaintiffs

24
25
26
Oi
28 2
REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION FOR CLASS
ALLEGATIONS
EXHIBIT 1
Case 2:18-cv-05074-FMQ-1™—=M Document12 Filed 06/26/18 Page 1of7 Page ID #:199

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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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JACOB LOPEZ, ) Case No. CV 18-5074 FMO (JEMx)
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Plaintiff, )
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Vv. ) ORDER REMANDING ACTION
)
ROSENDIN ELECTRIC, INC., )
)
Defendant. )
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On April 17, 2018, plaintiff Jacob Lopez (“plaintiff’ or “Lopez”) filed a Class Action Complaint

in the Los Angeles County Superior Court against Rosendin Electric, Inc. (“defendant” or
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“Rosendin”). (See Dkt. 1, Notice of Removal of Civil Action [] (“NOR”) at J 1; Dkt. 1-1, Class
Action Complaint for Damages (“Complaint’)). The Complaint asserts ten claims for relief under
California law: (1) violation of California Labor Code §§ 510 and 1198 (unpaid overtime); (2):
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violation of California Labor Code §§ 226.7 and 512(a) (unpaid meal period premiums) (3) violation

of California Labor Code § 226.7 (unpaid rest period premiums); (4) violation of California Labor
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Code §§ 1194, 1197, and 1197.1 (unpaid minimum wages); (5) violation of California Labor Code

§§ 201 and 202 (final wages not timely paid); (6) violation of California Labor Code § 204 (wages
not timely paid during employment); (7) violation of California Labor Code § 226(a) (non-compliant

wage statements); (8) violation of California Labor Code § 1174(d) (failure to keep requisite payroll

records; (9) violation of California Labor Code §§ 2800 and 2802 (unreimbursed business
expenses); and (10) violation of California Business & Professions Code §§ 17200, et seq. (See
Case 2:18-cv-05074-FMQ-1FM Document 12 Filed 06/26/18 Page 2of7 Page ID #:200

Dkt. 1-1, Complaint at {] 47-117). On June 4, 2018, plaintiff filed a First Amended Complaint
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(“FAC”) alleging five claims: (1) violation of California Labor Code § 226.7 (unpaid rest period
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premiums); (2) violation of California Labor Code §§ 201 and 202 (final wages not timely paid);
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(3) violation of California Labor Code § 226(a) (non-compliant wage statements); (4) violation of
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California Labor Code §§ 2800 and 2802 (unreimbursed business expenses); and (5) violation of
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California Business & Professions Code §§ 17200, et seq. (See Dkt. 1-3, FAC).
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On June 7, 2018, defendant removed the action to this court on grounds of federal question

jurisdiction pursuant to 28 U.S.C. § 1331 and § 301 of the Labor Management Relations Act
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(“LMRA”), 29 U.S.C. § 185(a). (See Dkt. 1, NOR at J 8). Having reviewed and considered the
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pleadings and all the materials submitted by defendant, the court hereby remands this action to
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state court for lack of subject matter jurisdiction. See 28 U.S.C. § 1447(c).
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LEGAL STANDARD
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Removal of a civil action from the state court where it was filed is proper if the action might
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have originally been brought in federal court. See 28 U.S.C. § 1441(a) (“Except as otherwise
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expressly provided by Act of Congress, any civil action brought in a State court of which the district
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courts of the United States have original jurisdiction, may be removed by the defendant or the
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defendants, to the district court[.]’). “The burden of establishing federal jurisdiction is upon the
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party seeking removall[.]” Emrich v. Touche Ross & Co., 846 F.2d 1190, 1195 (9th Cir. 1988). As
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such, any doubts are resolved in favor of remand. See Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th
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Cir. 1992) (“We strictly construe the removal statute against removal jurisdiction. Federal
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jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance.”)
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(internal citations omitted). Indeed, “[i]f at any time before final judgment it appears that the district
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court lacks subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c).
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DISCUSSION
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Defendant contends that “[t]his court has original jurisdiction over claims in this action
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arising under federal law.” (Dkt. 1, NOR at 8). “As the master of the complaint, a plaintiff may
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defeat removal by choosing not to plead independent federal claims.” ARCO Envt'l Remediation,
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L.L.C. v. Dep't of Health and Envt'l Quality of Montana, 213 F.3d 1108, 1114 (9th Cir. 2000). The
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2
Case 2:18-cv-05074-FMQ-1—FM Document 12 Filed 06/26/18 Page 3of7 Page ID #:201

existence of a federal defense is not enough to justify removal to federal court. See Caterpillar
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Inc. v. Williams, 482 U.S. 386, 393, 107 S.Ct. 2425, 2430 (1987) (‘“[I]t is now settled law that a
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case may not be removed to federal court on the basis of a federal defense, including the defense
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of pre-emption, even if the defense is anticipated in the plaintiffs complaint[.]’) (emphasis in
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original).
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The well-pleaded complaint rule “provides that federal jurisdiction exists only when a federal
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question is presented on the face of the plaintiffs properly pleaded complaint.” Smallwood v.
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Allied Van Lines, Inc., 660 F.3d 1115, 1120 (9th Cir. 2011) (quoting Caterpillar, 482 U.S. at 392,
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107 S.Ct. at 2429). However, “[t]he jurisdictional doctrine of complete preemption serves as an
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exception to the well-pleaded complaint rule.” Ansley v. Ameriquest Mortg. Co., 340 F.3d 858, 861
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(9th Cir. 2003). The complete preemption doctrine “provides that, in some instances, the
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preemptive force of [federal statutes] is so strong that they completely preempt an area of state
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law.” Id. at 861-62 (internal quotation marks omitted). The “proper inquiry focuses on whether
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Congress intended the federal cause of action to be exclusive[.]” Beneficial Nat'l Bank v.
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Anderson, 539 U.S. 1, 91n. 5, 123 S.Ct. 2058, 2064 (2003). “[O]nce an area of state law has been
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completely pre-empted, any claim purportedly based on that pre-empted state law is considered,
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from its inception, a federal claim, and therefore arises under federal law.” Caterpillar, 482 U.S.
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at 393, 107 S.Ct. at 2430. Complete preemption “arises only in ‘extraordinary’ situations.” Ansley,
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340 F.3d at 862.
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Defendant asserts that the claims in plaintiffs FAC “cannot be resolved without reference
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to the collective bargaining agreement which governs the terms and conditions of Plaintiff's former
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employment with Rosendin[.]” (Dkt. 1, NOR at 8). Section 301 of the LMRA provides:
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Suits for violation of contracts between an employer and a labor organization
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representing employees in an industry affecting commerce as defined in this
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chapter, or between any such labor organizations, may be brought in any
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district court of the United States having jurisdiction of the parties, without
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respect to the amount in controversy or without regard to the citizenship of
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the parties.
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Case 2:18-cv-05074-FMQ-1—M Document 12 Filed 06/26/18 Page 4of7 Page ID #:202

29 U.S.C. § 185(a). “The Supreme Court decided early on that in enacting this statute, Congress
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charged federal courts with a ‘mandate . . . to fashion a body of federal common law to be used
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to address disputes arising out of labor contracts.” Burnside v. Kiewit Pac. Corp., 491 F.3d 1053,
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1059 (9th Cir. 2007) (quoting Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 209, 105 S.Ct. 1904,
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1910 (1985)) (alteration in original). “As a result of this broad federal mandate, . . . the ‘preemptive
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force of section 301 is so powerful as to displace entirely any state cause of action for violation

of contracts between an employer and a labor organization.” Burnside, 491 F.3d at 1059. Yet,
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“not every dispute concerning employment, or tangentially involving a provision of a collective-
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bargaining agreement, is pre-empted by § 301.” Kobold v. Good Samaritan Reg’! Med. Ctr., 832
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F.3d 1024, 1032 (9th Cir. 2016) (internal quotation marks omitted).
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To determine if a plaintiffs state law claim is preempted by § 301, the court engages in a
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two-step inquiry. See Kobold, 832 F.3d at 1032. First, the court must determine “whether the
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asserted cause of action involves a right conferred upon an employee by virtue of state law, not
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by a CBA. If the right exists solely as a result of the CBA, then the claim is preempted, and the
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analysis ends there.” Id. (internal alteration marks omitted). To make this determination, the court
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“must focus its inquiry on the legal character of a claim[.]’ Id. at 1033 (internal quotation marks
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omitted; emphasis in original). “A claim brought in state court on the basis of a state-law right that
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is independent of rights under the collective-bargaining agreement, will not be preempted, even
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if a grievance arising from precisely the same set of facts could be pursued.” Valles v. Ivy Hill
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Corp., 410 F.3d 1071, 1076 (9th Cir. 2005) (internal quotation marks omitted).
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Second, “[i]f the court determines that the right underlying the plaintiff's state law claim(s)
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exists independently of the CBA, it moves to the second step, asking whether the right is
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nevertheless substantially dependent on analysis of a collective-bargaining agreement.” Kobold,
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832 F.3d at 1032 (internal quotation marks omitted). This analysis “turns on whether the claim can
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be resolved by ‘looking to’ versus interpreting the CBA. Ifthe latter, the claim is preempted; if the
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former, it is not.” Id. at 1033 (internal quotation and alteration marks omitted). “The plaintiff's
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claim is the touchstone for this analysis; the need to interpret the CBA must inhere in the nature
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of the plaintiff's claim.” Cramer v. Consol. Freightways, Inc., 255 F.3d 683, 691 (9th Cir. 2001),
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4
Case 2:18-cv-05074-FMQ-1FM Document12 Filed 06/26/18 Page5of7 Page ID #:203

cert. denied, 534 U.S. 1078 (2002). “[A]lleging a hypothetical connection between the claim and
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the terms of the CBA is not enough to preempt the claim: adjudication of the claim must require
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interpretation of a provision of the CBA.” Id. at 691-92.
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Defendant does not dispute that plaintiffs claims are all grounded in state law. (See Dkt.
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1-3, FAC; see, generally, Dkt. 1, NOR). Defendant also concedes that the FAC does not, at any
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point, refer to or rely on any provision of the CBA. (See Dkt. 1, NOR at J 10.e.; see, generally,
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Dkt. 1-3, FAC). It is well-settled that if a plaintiffs claims are “plainly based on state law, § 301

preemption is not mandated simply because the defendant refers to the CBA in mounting a
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defense.” Kobold, 832 F.3d at 1033 (internal alteration marks omitted). To the extent defendant
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relies on a defensive use of the CBA, there is no preemption here. See id.; see also Burnside, 491
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F.3d at 1060 (“[R]eliance on the CBA as an aspect of a defense is not enough to ‘inject[] a federal
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question into an action that asserts what is plainly a state-law claim.’”); Humble v. Boeing Co., 305
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F.3d 1004, 1008 (9th Cir. 2002) (“[D]efensive reliance on the terms of the CBA, mere consultation
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of the CBA’s terms, or a speculative reliance on the CBA will not suffice to preempt a state law
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claim.”).
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Despite the fact that plaintiff asserts only state law claims, defendant argues that
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preemption is proper in this case because “his claims are based on and require interpretation of
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the CBA.” (Dkt. 1, NOR at fff] 10.e. & 10.i.-n.). However, defendant merely points to CBA
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provisions that may be relevant to the litigation, but which are neither disputed by the parties nor
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complex enough to require interpretation as opposed to simple application. (See id. at JJ] 10.j.-
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10.n.). “When the parties do not dispute the meaning of contract terms, the fact that a CBA will
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be consulted in the course of state law litigation does not require preemption.” Ward v. Circus
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Circus Casinos, Inc., 473 F.3d 994, 998 (9th Cir. 2007); see also Livadas v. Bradshaw, 512 U.S.
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107, 125, 114 S.Ct. 2068, 2079 (1994) (holding that “the mere need to ‘look to’ the collective-
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bargaining agreement. . . is no reason to hold the state-law claim defeated by § 301”); Burnside,
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491 F.3d at 1060 (“[W]e know that neither look[ing] to the CBA merely to discern that none of its
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terms is reasonably in dispute, nor the simple need to refer to [its terms], is enough to warrant
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preemption.”) (internal quotation marks and citations omitted); Acosta v. AJW Const., 2007 WL
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5
Case 2:18-cv-05074-FMQ-IFM Document 12 Filed 06/26/18 Page 6of7 Page ID #:204

4249852, *4 (N.D. Cal. 2007) (finding action “not preempted by ERISA” where “claims for unpaid
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wages accrued during paid time off . . . require little more than cursory consultation with the
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collective bargaining agreement”).
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For example, defendant asserts that the court will need to “interpret” §§ 3.24 and 3.25 of
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the CBA “to determine what expenses were ‘necessary’ or were in response ‘to the directions of
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Defendants[,]”” which is related to plaintiffs fourth cause of action alleging failure to reimburse for
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business-related expenses and costs. (See Dkt. 1, NOR at J 10,j.). Section 3.24 provides that
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“Cable splicer shall furnish only the following in addition to the tools required for journeymen and
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apprentice wiremen: Shave Hook[,] Ball Peen Hammer|[,] Scissors[,] Lead Dresser[,] Cable Knife”
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and goes on to list 25 other tools. (See Dkt. 2-1, CBA at Art. 3, § 3.24). Section 3.25 provides
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that the employer shall furnish “all other necessary tools or equipment.” (See id. at § 3.25).
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Defendant does not contend that plaintiff disputes that he was required to provide the listed tools,
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(see, generally, Dkt. 1, NOR), and the FAC does not suggest that such a dispute exists. (See,
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generally, Dkt. 1-3, FAC). Even if there was a dispute, the court would only need to make a simple
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determination as to whether the respective job category applies; no interpretation would be
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required, and thus preemption is not appropriate. See Ward, 473 F.3d at 998 (“When the parties
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do not dispute the meaning of contract terms, the fact that a CBA will be consulted in the course
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of state law litigation does not require preemption.”); Livadas, 512 U.S. at 124-25, 114 S.Ct. at
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2079 (concluding that there was not “even a colorable argument’ for preemption because whether
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employer willfully failed to pay wages was “a question of state law, entirely independent of any
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understanding embodied in the collective-bargaining agreement between the union and the
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employer’); Burnside, 491 F.3d at 1060; see also Nu Image, Inc. v. International Alliance of
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Theatrical Stage Employees, 2018 WL 3040126, *5 (9th Cir. 2018) (“[A]bsent some affirmative
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claim by the plaintiff of a violation of the contract, a district court does not have jurisdiction under
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section 301(a).”) (footnote omitted).
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enough to require interpretation rather than mere application. (See, generally, Dkt. 1, NOR). As
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a result, plaintiffs action is not preempted by § 301 of the LMRA.
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6
Case 2:18-cv-05074-FMQ-1FM Document 12 Filed 06/26/18 Page 7of7 Page ID #:205

CONCLUSION
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Based on the foregoing, IT |S ORDERED THAT:
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1. The above-captioned action shall be remanded to the Superior Court of the State of
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California for the County of Los Angeles, 111 North Hill Street, Los Angeles, California 90012, for
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lack of subject matter jurisdiction pursuant to 28 U.S.C. § 1447(c).
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2. The Clerk shall send a certified copy of this Order to the state court.
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Dated this 26th day of June, 2018.
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/s/
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Fernando M. Olguin
United States District Judge
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EXHIBIT 2
OFFICIAL NOTICE
INDUSTRIAL WELFARE COMMISSION
ORDER NO. 16-2001
REGULATING
WAGES, HOURS AND WORKING CONDITIONS IN THE

CERTAINON-SITEOCCUPATIONSINTHECONSTRUCTION,
DRILLING,LOGGINGANDMININGINDUSTRIES
Effective January 1, 2002 as amended

Sections 4(A) and 9(C) amended and republished by the Department of Industrial Relations,
effective January 1, 2019, pursuant to SB 3, Chapter 4, Statutes of 2016 and section 1182.13
of the Labor Code

This Order Must Be Posted Where Employees Can Read It Easily

IWC FORM 1114 (Rev. 11/2018)
®&: OSP 06 98774
Please Post With This Side Show
OFFICIAL NOTICE
Effective January 1, 2002 as amended
Sections 4(A) and 9(C) amended and republished by the Department of Industrial
Relations, effective January 1, 2019, pursuant to SB 3, Chapter 4, Statutes of 2016 and
~**"section 1182.13 of the Labor Code

INDUSTRIAL WELFARE COMMISSION
ORDER NO. 16-2001
REGULATING
WAGES, HOURS AND WORKING CONDITIONS IN THE

CERTAIN ON-SITE OCCUPATIONS IN THE CONSTRUCTION, DRILLING, LOGGING,
AND MINING INDUSTRIES
TAKE NOTICE: To employers and representatives of persons working in industries and occupations in the State of California:
The Department of Industrial Relations amends and republishes the minimum wage and meals and lodging credits in the
Industrial Welfare Commission's Orders as a result of legislation enacted (SB 3, Ch. 4, Stats of 2016, amending section
1182.12 of the California Labor Code), and pursuant of section 1182.13 of the California Labor Code. The amendments and
republishing make no other changes to the IWC’s Orders.

1. APPLICABILITY OF ORDER
This order shall apply to all persons employed in the on-site occupations of construction, including but not limited to work
involving alteration, demolition, building, excavating, renovation, remodeling, maintenance, improvement, and repair work, and
work for which a contractor's license is required by the California Business and Professions Code, Division 3, Chapter 9, Sections
7025 et seq.; drilling, including but not limited to all work required to drill, establish, repair, and rework wells for the exploration or
extraction of oil, gas, or water resources; logging work for which a timber operator's license is required pursuant to California Public
Resources Code Sections 4571 through 4586; and mining (not covered by Labor Code Section 750 et seg.), including all work
required to mine and/or establish pits, quarries, and surface or underground mines for the purposes of exploration or extraction
of nonmetallic minerals and ores, coal, and building materials such as stone and gravel, whether paid on a time, piece rate, com-
mission, or other basis, except that:
(A) The provisions of Sections 3 through 11 shall not apply to persons employed in administrative, executive, or professional
capacities. No person shall be considered to be employed in an administrative, executive, or professional capacity unless the
person is primarily engaged in the duties which meet the test of the exemption, and earns a monthly salary equivalent to not less
than (2) two times the state minimum wage for full-time employment. The duties that meet the test of the exemption are one of the
following set of conditions:
(1) The employee is engaged in work which is primarily intellectual, managerial, or creative, and which requires exercise
of discretion and independent judgment; or
(2) The employee is licensed or certified by the State of California, and is engaged in the practice of one of the following
recognized professions: law, medicine, dentistry, optometry, architecture, engineering, teaching, or accounting, or the employee
is engaged in an occupation that is commonly recognized as a learned or artistic profession: provided, however, that pharmacists
employed to engage in the practice of pharmacy, and registered nurses employed to engage in the practice of nursing, shall not
be considered exempt professional employees, nor shall they be considered exempt from coverage for the purposes of this section
unless they individually meet the criteria established for exemption as executive or administrative employees.
(3) To the extent that there is no conflict with California law (Labor Code Section 515(e) requires than an employee be
“primarily” engaged in exempt work, which means more than one-half of the employee’s work time. Thus the “primary duty” test
set forth in federal regulations does not apply.), the duties that meet the test of the administrative and executive exemptions are
defined as set forth in the following sections of the Code of Federal Regulations as they existed as of the date of this wage order:
29 C.F.R. Sections 541.1 (a)-(c), 541.102, 541.104, 541.105, 541.106, 541.108, 541.109, 541.111, 541.115, and 541.116 (defining
‘executive duties); 29 C.F.R. Sections 541.2 (a)-(c), 541.201, 541.205, 541.208, and 541.210 (defining administrative duties).
(4) For the purposes of this section, “full-time employment” means employment in which an employee is employed for 40
hours per week.
(B) Except as provided in Sections 1, Applicability; 2, Definitions; 4, Minimum Wages; 9, Meals and Lodging; and 18, Penalties,
the provisions of this order shall not apply to any employees directly employed by the State or any political subdivision thereof,
including any city, county, or special district.
(C) The provisions of this order shall not apply to outside salespersons.
(D) The provisions of this order shall not apply to any individual who is the parent, spouse, child, or legally adopted child of
the employer.
(E) The provisions of this order shall not apply to any individual participating in a national service program, such as Ameri-
Corps, carried out using assistance provided under Section 12571 of Title 42 of the United States Code. (See Stats. 2000, ch. 365,
amending Labor Code Section 1171.)

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(F) This order supersedes any industry or occupational order for those employees employed in occupations covered by this
order.

2. DEFINITIONS
(A) “Alternative workweek schedule” means any regularly scheduled workweek proposed by an employer who has control over
the wages, hours, and working conditions of the employees, and ratified by an employee work unit in a neutral secret ballot election,
that requires an employee to work more than eight (8) hours in a 24-hour period.
(B) “Commission” means the Industrial Welfare Commission of the State of California.
(C) “Construction occupations” mean all job classifications associated with construction, including but not limited to work in-
volving alteration, demolition, building, excavation, renovation, remodeling, maintenance, improvement, and repair work, by the
California Business and Professions Code, Division 3, Chapter 9, Sections 7025 et seq., and any other similar or related occupa-
tions or trades.
(D) “Division” means the Division of Labor Standards Enforcement of the State of California.
(E) “Drilling occupations” mean all job classifications associated with the exploration or extraction of oil, gas, or water resources
work, including but not limited to the installation, establishment, reworking, maintenance or repair of wells and pumps by boring,
drilling, excavating, casting, cementing and cleaning for the extraction or conveyance of fluids such as water, steam, gases, or
petroleum.
(F) “Emergency” means an unpredictable or unavoidable occurrence at unscheduled intervals requiring immediate action.
(G) “Employ” means to engage, suffer, or permit to work.
(H) “Employee” means any person employed by an employer.
(I) “Employer” means any person as defined in Section 18 of the Labor Code, who directly or indirectly, or through an agent or
any other person, employs or exercises control over the wages, hours, or working conditions of any person.
(J) “Hours worked” means the time during which an employee is subject to the control of an employer, and includes all the time
the employee is suffered or permitted to work, whether or not required to do so.
(K) “Logging occupations” mean any work for which a timber operator's license is required pursuant to California Public Re-
sources Code Sections 4571-4586, including the cutting or removal or both of timber or other solid wood forest products, including
Christmas trees, from timberlands for commercial purposes, together with all the work that is incidental thereto, including but not
limited to construction and maintenance of roads, fuel breaks, fire breaks, stream crossings, landings, skid trails, beds for the falling
of trees, and fire hazard abatement.
(L) “Mining occupations” mean miners and other associated and related occupations (not covered by Labor Code Sections 750
et seq.) required to engage in excavation or operations above or below ground including work in mines, quarries, or open pits, used
for the purposes of exploration or extraction of nonmetallic minerals and ores, coal, and building materials such as stone, gravel,
and rock, or other materials intended for manufacture or sale, whether paid on a time, piece rate, commission, or other basis.
(M) “Minor” means, for the purpose of this order, any person under the age of 18 years as defined by Labor Code Sections
1285-1312 and 1390-1399.
(N) “Outside salesperson” means any person, 18 years of age or over, who customarily and regularly works more than half
the working time away from the employer’s place of business selling tangible or intangible items or obtaining orders or contracts
for products, services or use of facilities. An “outside salesperson” does not include an employee who makes deliveries or service
calls for the purpose of installing, replacing, repairing, removing, or servicing a product.
(O) “Primarily” means more than one-half the employee’s work time.
(P) “Regularly scheduled workweek” means a schedule where the length of the shift and the number of days of work are pre-
designated pursuant to an alternative workweek schedule.
(Q) “Split shift” means a work schedule, which is interrupted by non-paid non-working periods established by the employer,
other than bona fide rest or meal periods.
(R) “Wages” are as defined by California Labor Code Section 200.
(S) “Workday” and “day” mean any consecutive 24-hour period beginning at the same time each calendar day.
(T) “Workweek” and “week” mean any seven (7) consecutive days, starting with the same calendar day each week. “Workweek”
is a fixed and regularly recurring period of 168 hours, seven (7) consecutive 24-hour periods.
(U) “Work unit” means all nonexempt employees of a single employer within a given craft who share a common work site. A
work unit may consist of an individual employee as long as the criteria for an identifiable work unit in this subsection are met.

3. HOURS AND DAYS OF WORK
(A) Daily Overtime - General Provisions
(1) The following overtime provisions are applicable to employees 18 years of age or over and to employees 16 or 17 years
of,age who are not required by law to attend school and are not otherwise prohibited by law from engaging in the subject work.
Such employees shall not be employed more than eight (8) hours in any workday or more than 40 hours in any workweek unless
the employee receives one and one-half (1*/2) times such employee's regular rate of pay for all hours worked over 40 hours in the
workweek. Employment beyond eight (8) hours in any workday or more than six (6) days in any workweek is permissible provided
the employee is compensated for such overtime at not less than:
(a) One and one-half (1'/2) times the employee's regular rate of pay for all hours worked in excess of eight (8) hours
up to and including 12 hours in any workday, and for the first eight (8) hours worked on the seventh (7th) consecutive day of work
in a workweek; and
(b) Double the employee's regular rate of pay for all hours worked in excess of 12 hours in any workday and for all
hours worked in excess of eight (8) hours on the seventh (7th) consecutive day of work in a workweek.
(c) The overtime rate of compensation to be paid to a nonexempt full-time salaried employee shall be computed by
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using one-fortieth (1/40) of the employee’s weekly salary as the employee's regular hourly rate of pay.
(B) Alternative Workweek Schedu
(1) No employer, who has conto1 over the wages, hours, and working conditions of employees, shall be deemed to have
viclated the provisions of Section 3, Hours and Days of Work, by instituting, pursuant to the election procedures set forth in this
order, a regularly scheduled alternative workweek pursuant to the following conditions:
(a) The alternative workweek schedule shall provide for work by the affected employees of no longer than ten (10) hours
per day within a 40 hour workweek without the payment to the affected employees of an overtime rate of compensation pursuant
to this section.
(b) An affected employee working longer than eight (8) hours but no more than ten (10) hours in a day pursuant to an
alternative workweek schedule adopted pursuant to this section shall be paid an overtime rate of compensation of not less than one
and one-half (1'/2) times the regular rate of pay of the employee for any work in excess of the regularly scheduled hours established
by the alternative workweek agreement and for any work in excess of 40 hours per week.
(c) An overtime rate of compensation of not less than double the employee’s regular rate of pay shall be paid for
any work in excess of 12 hours per day and for any work in excess of eight (8) hours on those days worked beyond the regularly
scheduled workdays established by the alternative workweek agreement.
(d) An employer shall not reduce an employee’s regular rate of hourly pay as a

Case Info

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Maren Nelson Track Judge’s New Case

Case No.

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Document Filed Date

March 02, 2020

Case Filing Date

April 17, 2018

County

Parties

AIWAZIAN EDWIN Attorneys for Plaintiffs
COURT KIMBERLY ANNE Attorney For Defendant
ESPINOSA SAYURI P. Attorneys for Defendants
KRAMER DANIEL JONATHAN Attorneys for Plaintiffs
LOPEZ JACOB Plaintiff
MEHVARY SHAHIN YOUSEF Attorney For Plaintiff
PAGE MICHELLE LAUREN Attorney For Plaintiff
PARKER-FAWLEY ELIZABETH M. Attorneys for Plaintiffs
PAYNE MARK JOSEPH Attorneys for Defendants
ROSENDIN ELECTRIC INC. Defendant
SINCLAIR BRIAN CHRISTOPHER Attorneys for Defendants
WILLIAMS BRIAN Plaintiff
ZABEHI TARA Attorneys for Plaintiffs
ZIELINSKI KENNETH JAMES Attorneys for Defendants
Arby Aiwazian Attorneys for Plaintiffs
Travis Maher Attorney

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Hearing: JACOB LOPEZ VS ROSENDIN ELECTRIC INC

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