Anastacio Rodriguez v. Meeder Equipment Company

Code of Civil Procedure section 437c, subdivision (c) provides that summary judgment "shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." A defendant moving for summary judgment has the initial burden of presenting evidence that a cause of action lacks merit because the plaintiff cannot establish an element of the cause of action or there is a complete defense. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853 (Aguilar).) If the defendant satisfies this initial burden, the burden shifts to the plaintiff to present evidence demonstrating there is a triable issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, at p. 850.) 5

The trial court must "carefully scrutinize the moving party's papers and resolve all doubts regarding the existence of material, triable issues of fact in favor of the party opposing the motion." (Connelly v. County of Fresno (2006) 146 Cal.App.4th 29, 36.) The court must strictly construe the moving party's declarations and liberally construe the opposing party's declarations. (Villacres v. ABM Industries Inc. (2010) 189 Cal.App.4th 562, 575 [affirming trial court's granting of employer's summary judgment motion]; Binder v.

Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839 [reversing summary judgment where evidence suggested strong possibility trier of fact would resolve issues in favor of moving defendant, but not necessarily so].) "A triable issue of fact is created when the evidence reasonably permits the trier of fact, under the applicable standard of proof, to find the purportedly contested fact in favor of the party opposing the motion." (Loomis v. Amazon.com LLC (2021) 63 Cal.App.5th 466, 475 [reversing summary judgment where genuine issues of material fact existed on consumer's strict products liability claim].)

Separate Statements

In Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243 (Nazir), the court included the following cautionary note about the format and purpose of the separate statement of undisputed facts:

“Separate statements are required not to satisfy a sadistic urge to torment lawyers, but rather to afford due process to opposing parties and to permit trial courts to expeditiously review complex motions for [summary adjudication] and summary judgment to determine quickly and efficiently whether material facts are undisputed.” (United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 335.) The separate statement “provides a convenient and expeditious vehicle permitting the trial court to hone in on the truly disputed facts.” (Collins v. Hertz Corp. (2006) 144 Cal.App.4th 64, 74.) That hardly describes defendants' separate statement here.

The separate statement is, as noted, 196 pages. The exact number of supposedly material facts is impossible to know without actually counting them, as many of the facts are often repeated with the same numbers. But whatever the number, many of the facts are not material, as defendants concede, their separate statement beginning with this quizzical footnote: “The facts are deemed undisputed for purposes of this motion only and do not constitute any admission. For purposes of this motion only, Plaintiff's statements are accepted as true. Not all facts listed herein are necessarily material, as certain facts are asserted for background, foundational, information, or other purposes. Also, by including the facts set forth herein, Defendants are not waiving their right to challenge the admissibility of such facts in connection with this motion or for other purposes in this case.”

We offer two observations about this footnote. The first is that it ignores the advice from the leading practice treatise: “PRACTICE POINTER: [¶] ... [¶] Include only those facts which are truly material to the claims or defenses involved because the separate statement effectively concedes the materiality of whatever facts are included. Thus, if a triable issue is raised as 6

to any of the facts in your separate statement, the motion must be denied!” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2009) § 10:95.1, p. 10–35, bold and italics in original.) The second is that there seems to be some disconnect between defendants' concession that “Plaintiff's statements are accepted as true” and defendants' 325 objections to plaintiff's testimony. In short, defendants' separate statement was particularly inappropriate. [Fn.]

(Id. at pp. 251–252.)

Here Defendants' separate statement is 72 pages, with facts numbered from 1 to 343. It is difficult to know the exact number of supposedly material facts because, in addition to incorporating some facts by reference, many facts are repeated verbatim with different numbers. (E.g., compare Fact Nos. 9, 69, 150, 198, 276, 322, 328 ["Plaintiff's employment at Meeder commenced in 1983 or 1984."].)2 In response, Plaintiff's separate statement is 94 pages, with no additional facts. As the leading practice treatise notes, by including a fact in the separate statement, Defendants effectively concede the materiality of each included fact. (Nazir, supra, 178 Cal.App.4th at p. 252.)

Apart from the high number of facts and repeated facts, Defendants generally follow the required format for their motion for summary adjudication by specifying the issues and relevant facts for each cause of action. (Cal. Rules of Court, rule 3.1350(h).) In ruling on the 17 issues presented by Defendants, the court will follow the numbering used by Defendants.

First and Second Causes of Action (Issue Nos. 1-5)

Defendants move for summary adjudication of Plaintiff's first cause of action for retaliation in violation as to California Family Rights Act (Issue Nos. 1-2) and the second cause of action for retaliation in violation of the California Fair Employment and Housing Act (FEHA, Issue Nos. 3-5)). Although Plaintiff disputes some of Defendants' facts in connection with his remaining causes of action, Plaintiff does not oppose summary adjudication as to the first and second causes of action. Therefore, the court grants Defendants' motion for summary adjudication as to the first and second causes of action without further analysis.

Third Cause of Action (Issue Nos. 6-8)

Plaintiff's third cause of action is for whistleblower retaliation in violation of Labor Code section 1102.5. Defendants contend Plaintiff's whistleblower claims fail for three independent reasons: (1) Plaintiff cannot establish the element that his allegations disclosed a violation of law, rule, or regulation (Issue No. 6); (2) Plaintiff cannot establish the element that his allegations were a substantial factor in his termination on July 26, 2023 (Issue No. 7); and (3) clear and convincing evidence establishes that Meeder would

2Although Plaintiff's complaint includes the allegation that his employment began in "about 1984"

(comp, ¶ 9), defendants include this plainly undisputed fact seven times in their separate statement, with seven different numbers. 7

have terminated Plaintiff on July 26, 2023, for the safety violation Plaintiff committed on July 20, 2023 (Issue No. 8).

In his whistleblower claim, Plaintiff alleges a violation of Labor Code section 1102.5, subdivision (b), which provides;

An employer, or any person acting on behalf employer, shall not retaliate against an employee for disclosing information, or because the employer believes that the employee disclosed or may disclose information, to a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, or for providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee's job duties.

In Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, the California Supreme Court explained the framework to determine a whistleblower violation as follows:

[Labor Code s]ection 1102.6 provides the governing framework for the presentation and evaluation of whistleblower retaliation claims brought under section 1102.5. First, it places the burden on the plaintiff to establish, by a preponderance of the evidence, that retaliation for an employee's protected activities was a contributing factor in a contested employment action. The plaintiff need not satisfy McDonnell Douglas [Corp. v. Green (1973) 411 U.S. 792] in order to discharge this burden. Once the plaintiff has made the required showing, the burden shifts to the employer to demonstrate, by clear and convincing evidence, that it would have taken the action in question for legitimate, independent reasons even had the plaintiff not engaged in protected activity.

(Id. at p. 718.)

Issue No. 6

For Issue No. 6, Defendants contend Plaintiff cannot establish the element that his allegations disclosed a violation of law, rule, or regulation. To support this issue, they offer several facts (Fact Nos. 116-132), but none conclusively establish that plaintiff failed to disclose a violation of law, rule, or regulation. Defendants' Fact No. 121 provides:

In or about July 2020, Plaintiff told Angrest Harris that Plaintiff did not wish to be assigned any work outside in the field without another person to act as fire watch, or to be available if Plaintiff was injured. On Plaintiff’s last trip to weld a tank in a field, the grass around the tank had been cleared to a safe distance. Angrest Harris said that Plaintiff did not need a fire watch. 8

Plaintiff counters that what he describes as safety complaints or suggestions relate to Cal-OSHA requirements:

Defendants’ primary argument as to the issue of protected activity is that what Plaintiff communicated to Defendant Harris and others about safety issues was not protected activity because Plaintiff testified at deposition that he was not complaining about specific regulatory violations. This argument conflates Plaintiff’s subjective characterization of his conduct with the objective legal standard. Section 1102.5(b) protects disclosures where the employee has reasonable cause to believe the information discloses a violation. That is an objective standard.

As discussed above, Plaintiff’s safety complaints, including a shortage of PPE, and complaints related to fire watch protocols where he declined to perform what he believed was unsafe offsite welding work alone, were substantive, and relate to Cal-OSHA requirements governing PPE and fire safety requirements. The fact that Plaintiff called these “suggestions” under questioning at a deposition does not determine whether a person in his position had reasonable cause to believe the conditions he described were violations of some statute or regulation.

(Opp., p. 12:2-14.)

Plaintiff distinguishes Vatalaro v. County of Sacramento (2022) 79 Cal.App.5th 367 (Vatalaro), cited by Defendants, because the employee in Vatalaro was complaining about her job assignments that she believed were below her civil service classification, rather than violations of laws, statutes, rules, regulations, or safety concerns.

Although Plaintiff could not cite an actual regulation, a reasonable trier of fact could conclude, based on the evidence, that Plaintiff voiced a reasonable suspicion that a violation of a regulatory provision occurred. For example, his deposition testimony included his experiences with safety inspectors, who asked about his "fire watch" based on Cal-OSHA regulations, and his own work experiences confirmed the need for a fire watch. (See e.g., Cal. Code Regs., tit. 8, §§ 4848 [fire prevention and suppression procedures and methods], 6777 [contains required practices and procedures necessary to protect employees from fire and explosion hazards associated with "hot work"]; 29 C.F.R. § 1910.252 [fire watchers required whenever welding is performed in locations where fire might develop].)

In their moving papers, Defendants include Plaintiff's deposition testimony wherein he identified the following incident in response to a question asking Plaintiff to identify incidents to support his claim that Defendants "tried to get [Plaintiff] fired":

A. [by Plaintiff] There was -- well, there was an incident – well, the thing with the -- he had told me -- when I came back from a job, I told him that I would not go out on a jobsite anymore. And I go -- this is after Jeff [previous owner] passed away, 9

I said, "I can't go out on the jobsite no more unless I have a fire watch." And he goes, "You don't need a fire watch."

(Plaintiff's depo., pp. 141:24 – 142:6.) Based on Defendants' submitted evidence, the court finds Defendants fail to meet their initial burden to show Plaintiff cannot establish the element that his allegations disclosed a violation of law, rule, or regulation as a matter of law.

The court denies summary adjudication on Issue No. 6 for the additional reason that Plaintiff disputes Defendants' Fact No. 122, which Defendants concede is material by including the fact in their separate statement. Fact No. 122 provides: "Plaintiff was not assigned to, and did not perform, offsite work in the field after July 20, 2020." Plaintiff provides evidence that he performed field work, including work involving fire watch and safety concerns that he had raised to Harris, in 2022 or 2023. (Plaintiff’s depo., pp. 141:24- 142:24.) Although the trier of fact might reach a different conclusion based on Defendants' evidence, on summary judgment the court must carefully scrutinize Defendants' papers and resolve all doubts regarding the existence of material, triable issues of fact in Plaintiff's favor.

Issue No. 7

For Issue No. 7 (Plaintiff cannot establish the element that his allegations were a substantial factor in his termination on July 26, 2023), Defendants rely on Fact Nos. 133 through 197. The court finds Defendants' evidence fails to meet their burden on Issue No.

7. Defendants proffered facts include Fact No. 168, which provides:

When unsafe, Meeder prohibits one employee from working performing welding work or other work on the exterior of a propane tank or the attached truck while another employee is inside the tank.

Defendants' submitted evidence to support Fact No. 168 fails to show a specific policy prohibiting the described work. In addition, the court finds Fact No. 168 is disputed for the reasons stated in Plaintiff's response to Defendants' separate statement.3 The court also finds Fact No. 183 is unsupported and disputed by Plaintiff. (Fact No. 183: "Had Plaintiff

3 Plaintiff disputes Fact No. 168 as follows:

Disputed. Defendant Harris testified there was no written policy prohibiting exterior work on a propane tank while someone worked inside, and that Meeder’s policies do not detail every possible situation involving simultaneous interior and exterior tank work. (Ex. 3, Harris PMK Depo. 49:19-50:6.) Asked directly whether a policy prohibited the specific conduct at issue here, Harris testified only that Meeder does “not have a policy that allows” it, i.e. not that a policy affirmatively prohibited it. (Ex. 3, Harris PMK Depo. 79:23-80:11.)

Gustavo Garcia, the spotter on the job, testified he did not recall any policy requiring him to be notified before someone worked the tank’s exterior. (Ex. 6, Garcia Depo. 26:19- 25.) The “when unsafe” language in this fact does not appear in the cited testimony. To the extent this fact is offered to establish that a specific rule was communicated to Plaintiff and that rule was violated, that contention is disputed.

checked for other employees working in or on the tank prior to using the impact tool, he would have seen that Eleno Galarza was working inside the tank.")4 Therefore, the court denies summary adjudication on Issue No. 7

Issue No. 8

To prevail on Issue No 8, Defendants must establish by clear and convincing evidence, that Meeder would have terminated Plaintiff on July 26, 2023, for the safety violation Plaintiff committed on July 20, 2023, which was a legitimate, independent reason. (Lawson v. PPG Architectural Finishes, Inc., supra, 2 Cal.5th at p. 718.) Defendants rely on Fact Nos. 198 through 240 to support Issue No.

8. Plaintiff's testimony supports his theory that the incident on July 20, 2023, was not a safety violation. He provides evidence that he started his work first, before Eleno Galarza entered the tank, the spotter could not see Plaintiff working under the tank, Plaintiff was working with ear plugs, Plaintiff believed Eleno Galarza would not start his work until the next day, and Defendants' poor planning led to the accident. (Opp., pp. 6:12-7:5.) When Harris asked Plaintiff about the incident, Plaintiff testified Harris did not want to hear his explanation:

He asked me at first, and then I says, "I know now." I mean, I knew after. I found out after I hit the -- the impact. But that was it. But then I started trying -- I tried to tell him my story. He didn't want to hear it.

(Plaintiff depo., p. 168:7-11.)

One of the facts Defendants upon for Issue No. 8 is Fact No. 215, which restates verbatim Fact No. 168, and provides:

When unsafe, Meeder prohibits one employee from working performing welding work or other work on the exterior of a propane tank or the attached truck while another employee is inside the tank.

Plaintiff argues that the qualifier, "when unsafe," "concedes the rule is conditional, not absolute. (Opp., p. 15:26-27.)

The court agrees with Plaintiff's analysis that "[w]hether the conditions supposedly triggering [Plaintiff's firing] were present on July 20, 2023, and whether Plaintiff had reason to know they were present, are themselves disputed questions of fact that cannot be resolved on summary judgment." (Opp., pp. 15:27-16:2.) The evidence offered to support

4 Plaintiff disputes Fact No. 183 because Plaintiff testified he would have seen the spotter, not the

worker inside the tank: Disputed. Plaintiff did not testify that he would have seen Eleno Galarza working inside the tank. Mr. Galarza was inside the tank and, by definition, not visible from outside it. The cited testimony concerns only whether Plaintiff would have seen Gustavo Garcia, the spotter positioned outside. (Ex. 1, Plaintiff’s Depo 123:22- 124:11.) 11

the characterization of Plaintiff's conduct as malicious, insubordinate, or careless, raises a material disputed issue of fact.5

In their reply, Defendants respond to Plaintiff's contention that "'Defendant Harris's description of Plaintiff's conduct as supposedly malicious (among other things) is itself a disputed fact,'" by contending the subject is immaterial because Defendants' motion does not rely on this evidence. (Rpy., pp. 7:25-8:2, quoting Plaintiff's opp., p. 16:18-19.) But in their separate statement, Defendants cite Harris's description of Plaintiff's conduct as malicious to support Fact No. 240, which provides: "Angrest Harris made the decision to terminate Plaintiff because Plaintiff had placed an employee in harm’s way."

Defendant's supporting evidence for Fact No. 240 includes Harris's PMK deposition testimony wherein he responded simply and clearly to the question: "Q. [By Mr. Morris] So it's the company's position that [Plaintiff] acted maliciously that day [July 20, 2023]?"—"A. [By Harris] Yes." (Defs.' SOE, ex. D, depo. of Meeder PMK, pp. 70:7- 71:9 [quotation at 71:7- 9].) By including Fact No. 240 in their separate statement, Defendants concede their own supporting evidence is material.

The court finds Defendants fail to meet their burden on Issue No. 8 to show that clear and convincing evidence establishes that Meeder would have terminated Plaintiff on July 26, 2023, for legitimate, independent reasons even had Plaintiff not engaged in protected activity, and Plaintiff raises triable issues of material fact.

After carefully scrutinizing Defendants' papers and resolving all doubts regarding the existence of material, triable issues of fact in Plaintiff's favor, the court finds Defendants are not entitled to summary adjudication as to the third cause of action based on Issue Nos. 6, 7, or 8. Therefore, the court denies the motion for summary adjudication as to the third cause of action.

Fourth Cause of Action (Issue Nos. 9-10)

Defendants contend Plaintiff's fourth cause of action for wrongful termination in violation of public policy fails for the same reason as his third cause of action for whistleblower retaliation—Plaintiff fails "to allege, much less offer evidence of, a violation of law in connection with his 'safety suggestions.'" (Memo., p. 17:10-11.)

Issue No. 9

To prevail on Issue No. 9, Defendants must establish that Plaintiff cannot establish the element that his termination was in response to his allegations that Meeder violated the law. For the reasons noted above, the court finds Defendants fail to meet their burden on Issue No. 9, and triable issues of fact exist.

5 See, e.g., Harris PMK depo., p. 85:8-11, (Morris decl., ex. 3) wherein Harris described Plaintiff's

conduct as purposeful, malicious, unlawful, dangerous, poor judgment, bad judgment—"[t]hat's why he was terminated."

Issue No. 10

To prevail on Issue No. 10, Defendants must establish that Plaintiff cannot establish the element of a causal connection between his termination on July 26, 2023, and his complaints to Meeder. For Issue No. 10, Defendants rely on 63 facts, including Fact No. 265, which provides: "Plaintiff was not assigned to, and did not perform, offsite work in the field after July 2020." Fact No. 265 is the same as Fact No. 122. The court finds Fact No. 265 is disputed for the same reason previously stated for Fact No. 122—Plaintiff provides evidence that he performed field work, including work involving fire watch and safety concerns that he had raised to Harris, in 2022 or 2023. (Plaintiff’s depo., pp. 141:24- 142:24.)

The court finds Defendants are not entitled to summary adjudication as to the fourth cause of action based on Issue Nos. 9 or 10. Therefore, the court denies the motion for summary adjudication as to the fourth cause of action.

Fifth Cause of Action (Issue No. 11)

Defendants contend Plaintiff's fifth cause of action for failure to pay minimum wage (off-the-clock work) fails because Plaintiff cannot establish the element that Meeder knew of any occasion on which Plaintiff worked off the clock. In support of Issue No. 11, Defendants rely on Fact Nos. 322 through 325, and 327. (The separate statement does not include a Fact No. 326.)

Defendants correctly contend an employer has no liability for uncompensated time "where that employer has no knowledge that an employee is engaging in overtime work and that employee fails to notify the employer[.]" (Jong v. Kaiser Foundation Health Plan, Inc. (2014) 226 Cal.App.4th 391, 395, internal quotation marks and citation omitted.) To establish Issue No. 11, Defendants rely on Plaintiff's testimony wherein he stated he was not aware if Harris knew he worked off the clock (Plaintiff's depo., p. 217:20-22), and Harris did not know Plaintiff worked off the clock (Fact No. 327). But Defendants include no evidence to establish that Meeder had no constructive notice about Plaintiff working off the clock, based on the knowledge of supervisors other than Harris. (See, e.g., Plaintiff's depo., p. 217:14-19 [former owner was aware that Plaintiff worked off the clock].)

The court finds Defendants fail to meet their initial burden on Issue No. 11 because they fail to offer evidence to establish, as a matter of law, that Plaintiff's employer, Meeder, had no constructive knowledge that Plaintiff worked off the clock. Therefore, the court denies the motion for summary adjudication as to the fifth cause of action.

Sixth Cause of Action (Issue No. 12)

Defendants contend Plaintiff's sixth cause of action for failure to provide meal periods fails because Plaintiff cannot establish the element that Meeder failed to make any required meal period available to Plaintiff. Defendants rely on Fact Nos. 328 through 333.

Defendants' own evidence establishes that Plaintiff missed some meal periods. For example, Fact No. 332 provides: 13

Plaintiff missed a meal period once or twice per month when the trucks happened to arrive around noon. This primarily occurred in and before 2018, and sometimes later. Plaintiff took all other meal periods.

The fact the missed meal periods occurred "primarily" in 2018 "and sometimes later" does not establish that all missed meals are barred by the applicable statute of limitations. The court finds Defendants fail to meet their initial burden of persuasion and production on the sixth cause of action. Therefore, the court denies the motion for summary adjudication as to sixth cause of action.

Seventh Cause of Action (Issue No. 13)

Defendants contend Plaintiff's seventh cause of action for failure to provide accurate wage statements, pursuant to Labor Code section 226, subdivision (a), fails because Plaintiff cannot establish the element that Plaintiff’s wage statements contained inaccuracies. Defendants incorporate by reference Fact Nos. 322 through 333. As discussed above, Fact No. 332 establishes that Plaintiff missed some meal periods, which would result in an inaccurate wage statement. The court finds Defendants fail to meet their initial burden of persuasion and production on the seventh cause of action. Therefore, the court denies the motion for summary adjudication as to the seventh cause of action.

Eighth Cause of Action (Issue Nos. 14-15)

Issue No. 14

Based on Issue No. 14, Defendants contend Plaintiff’s eighth cause of action for failure to indemnify business expenses, pursuant to Labor Code section 2802 fails because Plaintiff did not bring this cause of action within the three-year statute of limitations prescribed by Code of Civil Procedure section 388, subdivision (a). To support this contention, Defendants rely on Fact No. 337: "Plaintiff was not assigned to, and did not perform, offsite work in the field after July 20, 2020." Fact No. 337 is the same as Fact No. 122, which the court already has determined is disputed. Therefore, the court finds Defendants are not entitled to summary adjudication based on Issue No.

14.

Issue No. 15

Based on Issue No. 15, Defendants contend Plaintiff’s eighth cause of action for failure to indemnify business expenses (Labor Code, § 2802) fails because Plaintiff cannot establish the element that Meeder required Plaintiff to incur the expenses he identified. Issue No. 15 is based on a single fact, Fact No. 338, which provides: "Plaintiff states he used his personal cell phone while in the field, but was not required by Meeder to buy a personal cell phone." Defendants' Fact No. 338 addresses only Plaintiff's alleged cell phone expenses. But Defendants support Fact No. 338 with nothing more than a short excerpt of Plaintiff's deposition testimony, which describes other expenses Plaintiff incurred to do his job:

Q. [By Ms. Hatmaker] At any time that you worked at Meeder 14

Ransome, did you use a cell phone for work? A. [By Plaintiff] Yes. Q. When was that? A. When I was at the field. Q. Okay. Other than out in the field, you didn't have a need to use a cell phone; correct? A. No. Q. Was there any -- anything at all that you had to purchase on your own to do your job? A. Just your own hood, your boots, whatever stuff you wanted to use for your tools, whatever tools you needed. Q. Okay. And you chose to bring your tools; right? A. My own tools, yes.

(SOE, ex. A, Pltf. depo., pp. 224:24-225:14.)

Defendants contend "Plaintiff testified that Meeder did not require him to purchase a cell phone." (Memo., p. 20:7-8, citing Fact No. 338.) With respect to Fact No. 338, Defendants do not accurately paraphrase Plaintiff's cited deposition testimony— Plaintiff never stated he was not required to buy a personal cell phone. Also, Defendants' own cited evidence could support a finding that Plaintiff was required to incur other necessary expenses in addition to a cell phone, such as tools and protective clothing Plaintiff needed to do his welding job.

In their reply, Defendants argue that Plaintiff fails to establish that use of his cell phone was required. But on a motion for summary judgment, as the moving parties, Defendants, not Plaintiff, have the initial burden to show Plaintiff cannot prove an essential element as a matter of law. Defendants fail to meet their initial burden, therefore, the burden does not shift to Plaintiff to present evidence demonstrating there is a triable issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, at p. 850.) The court finds Defendants are not entitled to summary adjudication based on Issue No.

15.

The court finds Defendants fail to meet their initial burden of persuasion and production on the eighth cause of action. Therefore, the court denies the motion for summary adjudication as to the eighth cause of action.

Ninth Cause of Action (Issue No. 16)

Defendants contend Plaintiff's ninth cause of action for failure to pay wages due upon termination (waiting time penalties) fails because Plaintiff cannot establish the element that Plaintiff was owed wages above those he received. Defendants again incorporate by reference Fact Nos. 322 through 333, and also incorporate by reference Fact Nos. 336 through 338. As discussed above, Fact No. 332 establishes that Plaintiff missed some meal periods, which would result in an inaccurate wage statement; and Defendants do not accurately paraphrase the evidence they cite to support Fact No. 338. The court finds Defendants fail to meet their initial burden of persuasion and production on the ninth cause of action. Therefore, the court denies the motion for summary adjudication as to the ninth cause of action. 15

Tenth Cause of Action (Issue No. 17)

Defendants contend Plaintiff's 10th cause of action for unfair business practices under California Business and Professions Code section 11200 et seq. fails because Plaintiff cannot establish the element of an unlawful predicate act. While this contention may have merit, Defendants fail to brief the elements or the requirements to establish a claim for unfair competition. In their separate statement, Defendants rely on one new fact (Fact No. 342), and incorporate by reference Fact Nos. 322 through 333 and 336 through 338.

Defendants' new Fact No. 342 is a legal conclusion that Plaintiff's 10th cause of action for unfair business practices "is based solely upon the violations of law alleged in Plaintiff’s Fifth, Sixth, and Eighth Causes of Action." Defendants cite Plaintiff's complaint at paragraphs 105 and 106 to support this conclusion. The parties agree that Plaintiff's 10th cause of action is based on violations of California's wage and hour laws and California's laws for maintaining business records. (Comp., ¶ ¶105, 106.)

The court has already determined that Fact No. 332 could support a finding that Plaintiff received at least one inaccurate wage statement, and Defendants' cited evidence fails to support Fact No. 338. The court finds Defendants fail to meet their initial burden of persuasion and production on the 10th cause of action. Therefore, the court denies the motion for summary adjudication as to the 10th cause of action.

Evidentiary Objections

The court declines to rule on the parties' evidentiary objections because none are directed to evidence that is material to the disposition of Defendants' motion. (Code Civ. Proc., § 437c, subd. (q) [court need rule only on objections court deems material to its disposition].)

Conclusion

The court denies Defendants' motion for summary judgment. The court grants Defendants' motion for summary adjudication as to the first and second causes of action. The court denies Defendants' motion for summary adjudication as to the third through tenth causes of action.

Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.

Tentative Ruling

Issued By: JS on 8/3/2026. (Judge’s initials) (Date)

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