Chavez v. Marriott Hotel Services CA2/2

Filed 11/29/22 Chavez v. Marriott Hotel Services CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

GERARDO CHAVEZ, B312136

Plaintiff and Appellant, (Los Angeles County Super. Ct. No. BC720943) v.

MARRIOTT HOTEL SERVICES, INC.,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of Los Angeles County, Maureen Duffy-Lewis, Judge. Affirmed.

The deRubertis Law Firm, David M. deRubertis; Lavi & Ebrahimian, Joseph L. Lavi and Jordan D. Bello for Plaintiff and Appellant.

O’Melveny & Myers, Adam P. KohSweeney, Kristin M. MacDonnell and Melissa C. Cassel for Defendant and Respondent. ______________________________

Plaintiff and appellant Gerardo Chavez (Chavez) brought this wage statement case against his former employer, Marriott Hotel Services, Inc. (Marriott), alleging that Marriott failed to provide its nonexempt employees with pay stubs in accordance with Labor Code section 226, subdivision (a)(9).1 Marriott moved for summary judgment, offering undisputed evidence that all of its employees are provided with compliant wage statements, namely electronic wage statements condoned by the California Department of Labor Standards Enforcement (DLSE). The trial court granted Marriott’s motion, and Chavez appeals. He contends, as he did below, that his claim is not that Marriott failed to provide all employees with proper wage statements; rather, despite what is alleged in the complaint, his claim is now limited to Marriott’s alleged failure to provide him and other employees who requested printed paper checks with proper and accurate wage statements. Because Chavez’s efforts to defeat summary judgment are limited to an unpleaded theory in his complaint, we affirm. BACKGROUND I. Facts A. Marriott’s pay practices Marriott employees choose to receive their wages through either direct deposit or paper paycheck. All employees, regardless of how they choose to receive their wages, are provided with electronic wage statements that can be accessed online from any computer, smartphone, or tablet, including through onsite computers with printers. Employees are instructed during new- hire training to access their wage statements online, and the