Professional Documents
Culture Documents
BH
James Cole,
EDCV 08-1570-VAP (SPx)
Plaintiff,
v. Order GRANTING Defendant’s
Motion for Summary Judgment
CRST, Inc., [Doc. No. 198]
Defendant.
I. BACKGROUND
This action arises out of the compensation system used by Defendant CRST,
a motor carrier that employs truck drivers to transport freight across the United
States. (Doc. No. 200 at 2.) Defendant is based in Cedar Rapids, Iowa, and
operates terminals across the United States, including in Fontana, California. (Id.)
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meal periods pursuant to California Labor Code sections 226.7 and 512, as well as
Industrial Welfare Commission (“IWC”) Wage Order 9; (2) failed to timely pay
wages due at termination pursuant to California Labor Code Sections 201, 202, and
203; (3) violated unfair competition law (“UCL”) pursuant to California Business &
Professions Code section 17200, et seq.; (4) failed to pay minimum wage pursuant
to California Labor Code sections 1194 and 1197, as well as IWC Wage Order 9; (4)
knowingly and intentionally failed to comply with itemized employee wage
statement provisions pursuant to California Labor Code sections 226(b), 1174, and
1175; and (6) violated the California Labor Code Private Attorneys General Act
(“PAGA”) pursuant to California Labor Code section 2698, et seq. (Doc. No. 56.)
On August 5, 2010, the Court granted Plaintiff's motion to certify the class.
(Doc. No. 86.) On April 1, 2016, however, the Court decertified the class after
determining that Plaintiff could not satisfy the predominance requirement of Fed. R.
Civ. P. 23(b). (Doc. No. 184 at 8.)
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Clerks Union Local 648 v. Hub Pharm., Inc., 707 F.2d 1030, 1033 (9th Cir. 1983).
The moving party bears the initial burden of identifying the elements of the claim or
defense and evidence that it believes demonstrates the absence of an issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Where the non-moving party has the burden at trial, however, the moving
party need not produce evidence negating or disproving every essential element of
the non-moving party’s case. Celotex, 477 U.S. at 325. Instead, the moving party’s
burden is met by pointing out that there is an absence of evidence supporting the
non-moving party’s case. Id.
“If a moving party fails to carry its initial burden of production, the
nonmoving party has no obligation to produce anything, even if the nonmoving
party would have the ultimate burden of persuasion at trial.” Nissan Fire & Marine
Ins. Co. v. Fritz Co., 210 F.3d 1099, 1102–03 (9th Cir. 2000). “In such a case, the
nonmoving party may defeat the motion for summary judgment without producing
anything.” Id. at 1103.
If the moving party carries its burden of production, however, the burden
then shifts to the non-moving party to show that there is a genuine issue of material
fact that must be resolved at trial. See Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at
324; Anderson, 477 U.S. at 256; Nissan Fire, 210 F.3d at 1103. The non-moving
party must make an affirmative showing on all matters in issue by the motion as to
which it has the burden of proof at trial. Celotex, 477 U.S. at 322; Anderson, 477
U.S. at 252. See also William W. Schwarzer, A. Wallace Tashima & James M.
Wagstaffe, FEDERAL CIVIL PROCEDURE BEFORE TRIAL, § 14:144. “This burden is
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not a light one. The non-moving party must show more than the mere existence of a
scintilla of evidence.” In re Oracle Corp. Secs. Litig., 627 F.3d 376, 387 (9th Cir.
2010) (citing Anderson, 477 U.S. at 252).
A genuine issue of material fact will exist “if the evidence is such that a
reasonable jury could return a verdict for the non-moving party.” Anderson, 477
U.S. at 248. In ruling on a motion for summary judgment, a court construes the
evidence in the light most favorable to the non-moving party. Barlow v. Ground,
943 F.2d 1132, 1135 (9th Cir. 1991); T.W. Elec. Serv. Inc. v. Pac. Elec. Contractors
Ass’n, 809 F.2d 626, 630-31 (9th Cir. 1987).
To the extent certain facts or conclusions are not mentioned in this Order, the
Court has not relied on them in reaching its decision. The Court has considered
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independently the admissibility of the evidence that both parties submitted and has
not considered irrelevant or inadmissible evidence. The following material facts are
supported adequately by admissible evidence and are uncontroverted. They are
“admitted to exist without controversy” for the purposes of resolving Defendants’
Motion for Summary Judgment. See L.R. 56-3.
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Parties dispute whether this compensation system includes on-duty tasks other than
driving.
IV. DISCUSSION
A. Meal and Rest Break Claims
1. Meal and Rest Break Requirements under California Law
California’s meal and rest break rules require employers to (1) provide
employees the opportunity to take a 30-minute meal period beginning before the
end of the fifth hour of work and a second 30-minute meal period beginning before
the end of the tenth hour of work, and (2) authorize and permit a net ten-minute rest
period for every four hours of work.1 See Cal. Lab. Code § 512(a); 8 Cal. Code
Regs. §§ 11040(11)(A), 11040(12)(A).
1
These requirements are subject to exceptions depending on the total hours
worked each day. See Cal. Lab. Code § 512(a); 8 Cal. Code Regs. §§
11040(11)(A), 11040(12)(A). The Parties do not contend that those exceptions
are relevant here.
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that meal breaks are taken; rather, the employer must not prevent employees from
taking meal breaks. Id. The Brinker decision made clear that employers could
satisfy this obligation in different ways and that the court did not need to delineate
every instance of compliance. Id. In short, the only affirmative obligation that an
employer has that is relevant here is the obligation is to notify employees of
California’s meal and rest break rules. See Doc. No. 184 at 5 (citing Cal. Labor
Code § 1183(d)). An employer may do this by posting a copy of the rules in a
“conspicuous location frequented by employees during the hours of the workday.”
Cal. Labor Code § 1183(d).
2
Defendant contends that the Court should not consider this portion of Plaintiff’s
declaration because it is inconsistent with Plaintiff’s deposition testimony, in
which he states that he would enter the Fontana terminal office to “straighten[]
out” paperwork, such as renewing his parking passes every “one . . . or two
months.” (Doc. No. 201-2 at 32.) The Court, however, views those comments as
consistent. An employee that enters an office only once every two months or only
six times in a calendar year can be said to “rarely” enter that office.
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question; what matters is whether the rules were posted at all. Here, Plaintiff has
not presented any evidence that rebuts Kopecky’s testimony that the rules were
posted in the Fontana terminal. Moreover, as Plaintiff’s job was to transport freight
across the country, the majority of his time was spent inside his truck, not in an
office or terminal. Plaintiff has not pointed to any evidence that there was a more
conspicuous or frequented location where the rules could feasibly be posted.
Accordingly, the Court grants Defendant summary adjudication on this issue.
Id. at 269. Plaintiff contends that Kopecky’s deposition testimony establishes that
Defendant requires its drivers to remain “on call” during their rest periods. (Doc.
No. 199 at 14.)
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at *2 (N.D. Cal. Aug. 28, 2013) (citing Brinker, 53 Cal. 4th at 1040). “Rather, an
employee must show that the employer impeded or discouraged the employee from
taking breaks.” Id.
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Agricola Baja Best, S. De. R.L. de C.V. v. Harris Moran Seed Co., 44 F. Supp. 3d
974, 984 (S.D. Cal. 2014) (citations omitted); see also In re ConAgra Foods, Inc.,
90 F. Supp. 3d 919, 961 (C.D. Cal. 2015) (“An affidavit is not a sham if: (1) it
‘merely elaborat[es] upon, explain[s] or clarif[ies] prior testimony,’ Messick v.
Horizon Industries, Inc., 62 F.3d 1227, 1231 (9th Cir. 1995); (2) if ‘the witness was
confused at that time of the earlier testimony and provides an explanation for the
confusion’ [Pacific Ins. Co. v. Kent, 120 F. Supp. 2d 1205, 1213 (C.D. Cal. 2000)];
or (3) if the declaration concerns newly discovered evidence, id.”).
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Likewise, though Plaintiff testified that no one told him to “use 50 miles per
hour as the average in figuring out how far [he could] drive when doing [his] trip
planning,” that is not the same as testifying that he was never told that he was
required to maintain a minimum average speed of 50 miles per hour. Indeed, the
evidence in the record shows that Defendant has a policy requiring drivers to
average a minimum of 50 miles per hour. Defendant’s “Driver Handbook” states
that drivers “must average 50 mph including fuel stops, driver swaps, meals,
breaks, showers, weigh stations, traffic, etc.” (Doc. No. 199-2 at 70 (emphasis in
original).)
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him to “keep the wheels turning.” (Doc. No. 199-6 at 4-5.) Plaintiff also cites to
his deposition testimony in which he made similar claims. (Doc. No. 199 at 15-16.)
Finally, Plaintiff relies on print outs of Defendant’s training materials, which
confirm that Defendant required drivers to accept “legal loads” and maintain an
average speed of 50 miles per hour. (Doc. No. 199 at 15-16.)
The evidence that Plaintiff relies upon is insufficient to meet his burden to
establish a genuine issue of material fact that must be resolved at trial. The Ninth
Circuit “has refused to find a ‘genuine issue’ where the only evidence presented is
‘uncorroborated and self-serving’ testimony.” Villirimo v. Aloha Island Air, Inc.,
281 F.3d 1054, 1061 (9th Cir. 2002). Plaintiff has not presented evidence to
corroborate his claim that Defendant pressured him to skip break periods. Although
the training materials confirm that drivers were required to accept “legal loads” and
maintain an average speed of 50 miles per hour, Plaintiff has presented no
evidence—aside from his own testimony—that those requirements caused
Defendant to assign him trips with mileage and timing requirements that necessarily
forced him to skip breaks. In fact, Plaintiff fails to identify a single trip he took
where he skipped a break due to Defendant’s delivery deadlines and transition time
rules.
Moreover, there is ample evidence in the record that Defendant did, in fact,
encourage Plaintiff to take breaks. Daniel Jeffers, a former driver for Defendant
and currently Defendant’s Safety Trainer, testified that “[n]o one [employed by
Defendant] ever told me not to take a break. In fact, the opposite is true.
[Defendant] encourages drives to take breaks whenever they feel breaks are
necessary.” (Doc. No. 198-4 at 3.) Kopecky, Defendant’s PMK, testified at his
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deposition that drivers are encouraged during their orientations that they should
incorporate breaks into their trips. (Doc. No. 198-5 at 15.)
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policy was different than its written policy.” Id. The court also pointed out that the
plaintiff “testified that he had time to take both meal breaks and that he ate
something every day that he worked.” Id. Ultimately, the plaintiff’s uncorroborated
“subjective beliefs about Trimac’s actual policy,” without more, were insufficient to
support a claim that Trimac had a policy of discouraging meal breaks. Id. at *4.
3
Although Plaintiff stated that dispatchers told him to “keep the wheels turning,” he
conceded that the same dispatchers told him to take breaks when he was tired. (Doc.
No. 198-5 at 49).
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5. Summary
Plaintiff has failed to present sufficient evidence that Defendant (1) failed to
post the relevant meal and rest break policies in a conspicuous location, (2) required
Plaintiff to remain on call at all times, or (3) pressured him into skipping breaks.
The Court, therefore, grants Defendant summary adjudication on Plaintiff’s meal
and rest break claim.
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related directly to driving, are already covered by the piece-rate pay based on miles
driven. Cf. Klamath Water Users Protective Ass'n v. Patterson, 204 F.3d 1206, 1210
(9th Cir. 1999) (noting that “[a] written contract must be read as a whole and every
part interpreted with reference to the whole, with preference given to reasonable
interpretations.”).
In short, the only evidence Plaintiff has presented in support of his argument
that he was not paid the minimum wage is a single phrase from Defendant’s Driver
Manual, which when read in context does not support his argument. Accordingly,
4
Plaintiff disputes this fact to the degree that it represents a legal conclusion, but
does not controvert it or otherwise show that Plaintiff did not testify in this way.
(Doc. No. 200 at 9-10.)
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the Court finds that Plaintiff has failed to create a material dispute of fact as to
whether he was paid the minimum wage.
Even if the Court were to consider the phrase in the Driver Manual sufficient
to create a material dispute of fact, Plaintiff’s claim would still fail because he has
not presented evidence of specific hours in which he did not receive minimum
wage. See Ayala v. U.S Xpress Enterprises, Inc., No. EDCV 16-137-GW (KKx),
2016 WL 7586910, at *6 (C.D. Cal. Dec. 22, 2016) (noting that, in order to
establish a minimum wage claim, the plaintiff “would have to demonstrate that
there were specific hours in which each putative Class Member did not receive
minimum wage. . . . [M]erely showing that [the defendants] maintained a
compensation system based on mileage does not establish liability for a minimum
wage claim under California law”), adopted as final ruling in Ayala v. U.S Xpress
Enterprises, Inc., No. EDCV 16-137-GW (KKx), 2016 WL 7638165, at *1 (C.D.
Cal. Dec. 27, 2016); Reinhardt v. Gemini Motor Transport, 869 F. Supp. 2d 1158,
1168 (E.D. Cal. 2012) (“[C]ompliance with the minimum wage law is determined
by analyzing the compensation paid for each hour worked; averaging hourly
compensation is not permitted under California Law.” (citing Sheppard v. North
Orange County Regional Occupational Pr., 191 Cal. App. 4th 289, 297 n. 5
(2010))).
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Plaintiff also offers statements from his declaration his declaration in support
of his minimum wage claim, namely that he was “typically” required to spend
several hours “on standby” at the Fontana terminal waiting for a load assignment,
for his co-driver to arrive for work, or for truck maintenance. (Doc. No. 199-6 at 2-
3.) Those statements are inconsistent with Plaintiff’s deposition testimony, in which
he stated that picking up and delivery of the freight, pre- and post-trip inspections,
and waiting to load or unload were on-duty work activities that were covered by
Defendant’s piece-rate compensation. (Doc. No. 198-5 at 53; Doc. No. 200 at 10.)
Moreover, the statements are so vague that the Court cannot assess to which hours
of work they apply. Plaintiff’s failure to provide dates for any of the “standby”
episodes prevents the Court from determining whether or not those episodes
occurred on days in which Plaintiff was being compensated on a flat week or piece-
rate compensations. Such vague, unsupported claims are insufficient to create a
material dispute of fact.
5
Even if Kriegler’s declaration were admissible, it does not support Plaintiff’s ar-
gument. The declaration only identifies two of three purported days (June 12,
2007, and June 18, 2007) on which Plaintiff was allegedly on duty and not pro-
vided minimum wage. (Doc. No. 199-7 at 3.) Plaintiff’s payroll records, howev-
er, show that he was not paid on a piece-rate basis on those days, but rather that he
received a flat amount of $350.00 per week for his work. (Doc. No. 199-2 at 20-
21.) Thus, Plaintiff’s minimum wage claim, which is based on Defendant’s piece-
rate compensation, does not apply to those dates.
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E. UCL Claims
Plaintiff’s UCL claim under Cal. Bus. & Prof. Code section 17200 is
derivative to his other claims. The Court, therefore, grants Defendant summary
6
Even if the Court were to consider Plaintiff’s untimely and improper amendment
to his section 226 claim, it still does not survive summary adjudication because
Plaintiff does not allege he was harmed by any of the newly alleged violations. See
Cal. Lab. Code § 226(e) (authorizing recovery by employees “suffering injury as a
result of a knowing and intentional failure by an employer to” provide properly
itemized statements).
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adjudication as to the UCL claim. See White v. Starbucks Corp., 497 F. Supp. 2d
1080, 1089-90 (N.D. Cal. 2007) (dismissing Section 17200 claim where underlying
claim was invalid).
V. CONCLUSION
For the reasons stated above, the Court GRANTS Defendant’s Motion.
IT IS SO ORDERED.
Dated: 3/30/17
Virginia A. Phillips
Chief United States District Judge
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