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Julia Mack (SBN 241024) Law Offices of Julia Mack 5455 Wilshire Blvd, Suite 2112 Los Angeles, CA 90036 Phone No. (323)372-1233 Fax No. (323)372-0143 Julia@macklawfirm.com Attorney for Defendant Academy Limousine Service, Inc.

SUPERIOR COURT FOR THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES, CENTRAL DISTRICT

BATIR SULEYMANOV, individually and on behalf of similarly situated and the California general public, vs Plaintiff,

Case No.: BC439306 [Assigned to Hon. Ruth Ann Kwan, Dept. 72 ] NOTICE OF MOTION AND MOTION FOR JUDGMENT ON THE PLEADINGS; MEMORANDUM OF POINTS AND AUTHORITIES IIN SUPPORT THEREOF [Filed Concurrently With Request for Judicial Notice] DATE: August 15, 2011 TIME: 9:00 a.m. DEPT: 72 Complaint Filed: June 8, 2010 Trial Date: October 3, 2011

ACADEMY LIMOUSINE SERVICE, INC.; GENE SOKOLOVSKY; and DOES 1 through 100 inclusive, Defendants

TO ALL PARTIES HEREIN AND THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE that on August 15, 2011, or as soon thereafter as the matter can be heard in Department 72 of the Los Angeles Superior Court, located at 111 North Hill Street, Los Angeles, California, Defendant Academy Limousine

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MOTION FOR JUDGMENT ON THE PLEADINGS

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Service, Inc. 1will move the Court for an Order granting judgment on the pleadings as to the Sixth Cause of Action of Plaintiffs First Amended Complaint. /// This motion will be made pursuant to California Code of Civil Procedure Section 438 on the grounds that Plaintiff cannot state a cause of action against this moving Defendant in the Sixth Cause of Action of the First Amended Complaint. This motion will be based on this Notice, the Memorandum of Points and Authorities served and filed herewith, the concurrently filed Request for Judicial Notice, upon all records, pleadings and files herein in this action, and upon such oral and documentary evidence as may be presented at the time of the hearing on this motion. Date: July 22, 2011 BY:_______________________________ Julia Mack Attorney for Defendant Academy Limousine Service, Inc.

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MEMORANDUM OF POINTS AND AUTHORITIES I. 1INTRODUCTION. Plaintiff BATIR SULEYMANOV, individually and on behalf of similarly situated and the California general public (hereinafter Plaintiff), filed a First Amended Complaint (FAC) in this action, which included a Sixth Cause of Action for Recovery of Penalties Under the Labor Code Private Attorney General Act of 2004 (PAGA Claims) against GENE SOKOLOVKSY (hereinafter Defendant). A demurrer to the FAC was filed and this court overruled Plaintiffs Sixth Cause of Action. However, Defendant has provided further grounds in this motion as to why this court should sustain Plaintiffs Sixth Cause of Action ( 86 through 97 of the FAC) without leave to amend as to this Defendant. II. PROCEDURAL BACKGROUND. On June 8, 2009, Plaintiff filed his initial Complaint. On August 12, 2010, Plaintiff filed a FAC, adding this moving party as an individually named Defendant. (A copy of the FAC is attached to the concurrently filed Request for Judicial Notice (RJN) as Exhibit A.) The only causes of action in the FAC brought against this Defendant were the Fifth and Sixth Causes of Action. On December 7, 2010, Defendants demurrer to the FAC was heard. This court issued its Order on said demurrer. (See Exhibit B to the RJN.) The court sustained without leave to amend Plaintiffs First Cause Action (unlawful nonpayment of overtime compensation), one of the issues which Plaintiff bases his Sixth Cause of Action against this Defendant. The court overruled the Sixth Cause of Action.

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MOTION FOR JUDGMENT ON THE PLEADINGS

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A.

On July 7, 2011 Defendants Motion for Judgment on the Pleading was heard for 2nd, 3rd, 4th and 6th causes of action. It was granted for 2nd and 3rd causes of action [with leave to amend by July 22, 2011] and denied as to the 4th and 5th causes of action, due to the fact that Defendants 30-page motion for judgment on the pleading well exceeds the 15-page limit (pg. 2 of Courts Tentative Ruling filed July 7, 2011 and attached as an Exhibit C, to the RJN). Consequently, this motion for judgment on the pleadings will address only the claims of the Sixth Cause of Action. III. ARGUMENT. DEFENDANTS MOTION FOR JUDGMENT ON THE PLEADINGS IS

PROPER. California Code of Civil Procedure Section 438 states in pertinent part that: A party may move for judgment on the pleadings on the following grounds, if the moving party is a defendant that the complaint does not state facts sufficient to constitute a cause of action against the defendant. Section 438 further provides that a motion for judgment on the pleadings may be made when the moving party did not demur to the complaint or answer, as the case may be, on the same grounds as is the basis for the motion provided for in this section. (Emphasis added.) As will be shown below, Defendant has provided further grounds as to why this court should dismiss Plaintiffs Sixth Cause of Action. B. PLAINTIFFS SIXTH CAUSE OF ACTION DOES NOT STATE FACTS

SUFFICIENT TO CONSTITE A CAUSE OF ACTION.

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1.

As to Paragraph 89 of the Sixth Cause of Action,

Defendant Did Not Violate Labor Code 510. Paragraph 89 of the FAC alleges that DEFENDANTS violated Labor Code 510 by failing to pay PLAINTIFFS the applicable overtime rate for overtime hours worked. However, in its 12/07/10 Order, this court sustained without leave to amend Plaintiffs claim for unlawful nonpayment of overtime compensation. (Exhibit B to RJN, page 4.) Consequently, Plaintiff and other similarly situated employees are exempt from overtime in accordance with court order dated 12/07/10, and thus should not be subject to a civil penalty under Labor Code 558. 2. As to Paragraph 90 of the Sixth Cause of Action,

Defendant Did Not Violate Labor Code 226(a). Plaintiff alleges in paragraph 90 of the FAC that Defendants Violated Labor Code 226(a) by filing to provide accurate itemized statements, for which 226.3 provides a civil penalty recoverable by Plaintiffs on behalf of themselves and other current and former employees. However, Plaintiff contradicts this allegation in the FAC at paragraph 50, which states: Defendants paid Batir Suleymanov with an itemized statement . . . Further, in Plaintiffs notice to the LWDA, Plaintiff cites the following Labor Code Violations by Defendant: 226: EMPLOYER failed to furnish, at the time of each payment of wages, to each of his or her employees, an accurate wage statement reflecting the total hours employees worked. 226.3: Employer violated subdivision (a) of Section 226 by failing to furnish, at the time of each payment of wages, to each of his or her employees, an accurate itemized wage statement for all Employees hours worked. Although Employer provided an itemized wage statement, it did not state the total hours
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Employee and other current and former employees worked or Employees and other current and former employees hourly rate. Thus, Employer is subject to a civil penalty as set forth under this section. (Emphasis added.) Labor Code 226.3 provides that: Any employer who violates subdivision (a) of Section 226 shall be subject to a civil penalty in the amount of two hundred fifty dollars ($250) per employee per violation in an initial citation and one thousand dollars ($1,000) per employee for each violation in a subsequent citation, for which the employer fails to provide the employee a wage deduction statement or fails to keep the records required in subdivision (a) of Section 226. The civil penalties provided for in this section are in addition to any other penalty provided by law. In enforcing this section, the Labor Commissioner shall take into consideration whether the violation was inadvertent, and in his or her discretion, may decide not to penalize an employer for a first violation when that violation was due to a clerical error or inadvertent mistake. Here, Plaintiff is making a fundamental mistake in his interpretation of Labor Code Section 226.3. Plaintiff alleges in paragraph 90 of the FAC that DEFENDANTS violated Labor Code 226(a) by failing to provide accurate itemized statements. Labor Code Section 226.3 provides civil penalties for failure

to provide wage statement, and not for omitting total hours worked on this statement. In fact, in his letter to LWDA, Plaintiff stated that Employer provided an itemized wage statement. In his FAC, Plaintiff stated the same: Defendants paid Batir Suleymanov with an itemized statement (Emphasis added.) ( 50 of the FAC, pg. 10, lines 25-26). Thus, it is very clear that Plaintiff interpreted section 226.3 incorrectly and his allegations are meritless because, Defendant(s), in fact, provided itemized wage deduction statement. Therefore, in his PAGA letter he failed to allege facts sufficient to maintain cause of action for civil penalties under Labor Code Section 226.3 and did not give proper notice to LWDA (who has

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not and will not investigate Defendants alleged failure to state total hours worked on its wage statement, as it would not be able to assert civil penalties for this violation). Additionally, the notice to the LWDA was defective for two reasons: First, in his letter to LWDA, Plaintiff did not allege which particular subcategory of the Labor Code Section 226 was violated. In accordance with LC 2699.5, The provisions of subdivision (a) of Section 2699.3 apply to any alleged violation of the following provisions: . . . subdivision (a) of Section 226, Sections 226.7. By failure to state subcategory of LC 226 in his letter to LWDA, Plaintiff violated LC 2699.3, which states: (a) A civil action by an aggrieved employee pursuant to subdivision (a) or (f) of Section 2699 alleging a violation of any provision listed in Section 2699.5 shall commence only after the following requirements have been met: (1) The aggrieved employee or representative shall give written notice by certified mail to the Labor and Workforce Development Agency and the employer of the specific provisions of this code alleged to have been violated, including the facts and theories to support the alleged violation. (Emphasis added.) Second, by stating that Employer provided an itemized wage statement and not stating that Employer failed to keep records pursuant to LC 226(a), in his letter to LWDA dated May 25, 2010, Plaintiff did not give sufficient Notice to LWDA, satisfying requirements of LC 2699.3(a)(1). LWDA has not and will not investigate Defendants alleged failure to state total hours worked on its wage statement, as it would not be able to assert civil penalties for this violation.

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Failure to include all facts and theories to support alleged violations of the Labor Code, are fatal to a claim under PAGA. (Caliber Body Works v. Superior Court (2005) 134 Cal.App.4th 365, 381-82.). As Plaintiffs notice to the LWDA was defective, he cannot maintain a PAGA action as he did not satisfy the pre-filing requirements by his failure to state facts sufficient to maintain the sixth cause of action.

3.

As to Paragraph 91 of the Sixth Cause of Action,

Defendant Did Not Violate Labor Code 1174. Plaintiff alleges in Paragraph 91 of the FAC that Defendants failed to comply with LC 1174, by failing to maintain records, which employers are required to maintain, including, but not limited to, records of meal periods, total hours worked, and all applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate by the employee. (Emphasis added.) In Plaintiffs notice to the LWDA, Plaintiff cites the violations by Defendant to this Section 1174, et seq. as follows: Sec 1174: Employer failed to keep, at a central location in the state or at the plants or establishments at which employees are employed, payroll records showing the hours worked daily by and wages paid to employees employed at the respective plants or establishments. (Emphasis added.) Sec 1174.5: Employer violated Labor Code 1174 by failing to maintain required records and is, therefore, subject to a civil penalty. Labor Code 1174, subsections (c) and (d) provides that employers must: (c) Keep a record showing the names and addresses of all employees employed and the ages of all minors.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (d) Keep, at a central location in the state or at the plants or establishments at which employees are employed, payroll records showing the hours worked daily by and the wages paid to, and the number of piece-rate units earned by and any applicable piece rate paid to, employees employed at the respective plants or establishments. These records shall be kept in accordance with rules established for this purpose by the commission, but in any case shall be kept on file for not less than two years.

Labor Code 1174.5 provides that: Any person employing labor who willfully fails to maintain the records required by subdivision (c) of Section 1174 or accurate and complete records required by subdivision (d) of Section 1174, or to allow any member of the commission or employees of the division to inspect records pursuant to subdivision (b) of Section 1174, shall be subject to a civil penalty of five hundred dollars ($500). First, Plaintiff failed to identify which subdivision of LC 1174 was violated by Defendants. According to LC 2699.5: provisions of subdivision (a) of Section 2699.3 apply to any alleged violation of the following provisions: subdivisions (c) and (d) of Section 1174. Plaintiff did not allege which subdivision of LC 1174 was violated. Plaintiff left LWDA, judge and others to guess which subsection was violated and if there is even a civil penalties assessment for these violations. That, by itself, violates the requirement to give proper notice to the LWDA. As such, he did not meet the notice requirements, as provided in LC 2699.3. Second, in his FAC Plaintiff did not allege that Employers act of not maintaining records was willful. Although, in FAC paragraph 60, he stated that Defendants failure to pay [overtime] wages was willful, he did not state that failure to keep and/or maintain records was willful as well. As such, Plaintiff(s) did not meet the notice requirements to LWDA, did not have fact sufficient in his
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letter to LWDA or his complaint, to allege that Defendant(s) purported violation of LC 1174 was willful and, thus, ineligible to collect civil penalties under 1174.5. Third, assuming that Plaintiff meant Defendant violated LC 1174(c) (i.e., failure to keep, at a central location, payroll records showing hours worked daily and wages paid to employees), Plaintiff did nor alleged any of the required facts and theories in his complaint to support such an allegation. In FAC Paragraph 90, he specifically alleged that Defendants failed to maintain records of meal periods, total hours worked, applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate by the employee." Clearly, nothing has been stated about defendants failing to keep payroll records at a central location, showing hours worked and daily and wages paid. In addition, Plaintiff did not specifically allege that Defendants did not keep a record showing the names and addresses of all employees. The requirements of Labor Code Section 2699.3(a), which Plaintiff fails to comply with in paragraphs 90, 91 and 94 of the FAC, are essential in order to bring a civil action under PAGA. Failure to include all facts and theories to support alleged violations of the Labor Code, are fatal to a claim under PAGA. (Caliber Body Works v. Superior Court (2005) 134 Cal.App.4th 365, 381-82.) Plaintiff was required to include in his May 25, 2010 letter to the LWDA (attached as Exhibit 1 to the FAC) the required facts and theories to support the specific alleged violations of the Labor Code in those paragraphs against Defendant. As Plaintiff has not met these requirements, the sixth cause of action against this Defendant should be dismissed.

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Plaintiff is also prohibited from recovering civil penalties under PAGA on behalf of himself and similarly situated aggrieved employees, as he did not give a sufficient detailed notice to LWDA. Again, proper notice requirements are an essential component to bring PAGA action.

4.

As to Paragraph 92 and 93 of the Sixth Cause of Action,

Defendant Is Not Subject to the Civil Penalty Provision of Labor Code 2699(f). Plaintiff alleges in paragraph 92 of the FAC that Labor Code 2699(f) provides that there is established a civil penalty of a violation of these provisions [any provisions of the Labor Code] as follows: one hundred dollars ($100) for each aggrieved employee per pay period for the initial violation and two hundred dollars ($200) for each aggrieved employee per pay period for each subsequent violation. In accordance with Labor Code 2699(a) any provision of this [Labor] code that provides for a civil penalty to be assessed and collected by the Labor and Workforce Development Agency or any of its departments, divisions, commissions, boards, agencies, or employees, for a violation of this code, may, as an alternative, be recovered through a civil action brought by an aggrieved employee on behalf of himself or herself and other current or former employees pursuant to the procedures specified in Section 2699.3. (Emphasis added.) Labor Code 2699.3(a) further provides: A civil action by an aggrieved employee pursuant to subdivision (a) or (f) of Section 2699 alleging a violation of any provision listed in Section 2699.5 [LC 226.3] shall
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commence only after the following requirements have been met: 1. The aggrieved employee or representative shall give written notice by certified mail to the Labor and Workforce Development Agency and the employer of the specific provisions of this code alleged to have been violated, including the facts and theories to support the alleged violation.

In Plaintiffs letter to LWDA dated May 19, 2011 (attached as Exhibit 1 to the FAC), Plaintiff stated how Defendants violated LC 226 as follows: Employer failed to furnish, at the time of each payment of wages, to each of his or her employees, an accurate itemized wage statement reflecting the total hours employees worked. However, Plaintiff never included any specific facts or theories proving that Defendants failed to keep the records required in subdivision (a) of Section 226. Therefore Plaintiff is prohibited from recovering civil penalties under Labor Code Private Attorney General Act, as he did not give a sufficient notice to LWDA. Notice requirements are an essential component to bring PAGA action. Failure to give sufficient notice precludes Plaintiff from collecting civil penalties for himself and on behalf of similarly situated aggrieved employees. 5. As to Paragraph 94 of the Sixth Cause of Action, Defendant Did

Not Violate Labor Code 226.7, and it Fails To State A Claim For Relief. Plaintiff alleges at paragraph 94 that DEFENDANTS violated Labor Code 226.7 by failing to provide the required meal periods to Plaintiffs, for which Labor

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Code 2699(f) provides a civil penalty recoverable by Plaintiffs on behalf of themselves and other current and former employees. Plaintiff has failed to notify LWDA that Defendant violated Labor Code 226.7 and specific facts and theories which support his allegation that Defendants failed to provide the required meal periods to Plaintiffs. There is absolutely nothing in his letter to LWDA about Defendant(s) purported violation of LC 226.7 and/or Defendant(s) failure to provide required meal periods, as alleged in Paragraph 94 of FAC. Notice requirements are essential to bring PAGA action. Plaintiffs failure to include all facts and theories to support alleged violations of the Labor Code, are fatal to a claim under PAGA. (Caliber Body Works v. Superior Court (2005) 134 Cal.App.4th 365, 381-82.) and make the Sixth Cause of Action dismissible.

6.

As to Paragraph 91 of the Sixth Cause of Action, Defendant Did Not

Violate Labor Code 203, it Fails To State A Claim For Relief and Tolls The Running Of The Statute of Limitations To Bring A PAGA Action. In paragraph 95, Plaintiff alleges that Defendants violated Labor Code 203 by failing to pay Plaintiffs all wages due upon separation from their employments with Defendants, for which Labor Code 2699(f) provides a civil penalty recoverable by Plaintiffs on behalf of themselves and other current and former employees. According to California Civil Code 340, Statute of limitations to bring a PAGA action requesting civil penalties is one year from the time of the alleged violation. (Thomas v. Home Depot USA Inc., 527 F.Supp.2d 1003, 1007 (N.D. Cal. 2007)), (De Simas v. Big Lots Stores, Inc., U.S. Dist LEXIS 19257 (N.D. Cal. Mar. 2007) [holding PAGA statute of limitations is one year].
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In Plaintiffs counsels notice to LWDA (Exhibit 1 to the FAC, pg. 1, 2), under Section 203, Plaintiff alleged that EMPLOYER failed to pay to EMPLOYEE on April 13, 2009, and other formerly discharged and quitting employees for all wages and earned compensation due by failing to pay EMPLOYEE and other former EMPLOYEES for all hours worked and failing to pay overtime wages. Plaintiff sent said notice to LWDA on May 25, 2010 (Exhibit 1 to FAC, attached to the RJN as Exhibit A). Plaintiff filed his initial action on June 8, 2010, and filed his FAC on August 12, 2010. Each one of these dates (including the date the original complaint was filed [June 8, 2010] exceeds the one year time period from the date of the alleged violation [April 13, 2009]. Consequently, Plaintiff cannot recover civil penalties in accordance with Labor Code 2699(f) and Labor Code 2699.5 [ 93 of FAC] for Defendants violation of Labor Code 203, as Plaintiffs action is outside of statute of limitations to bring a PAGA action. 7. As to Paragraph 96 and 97 of the Sixth Cause of Action, Attorneys Fees and Costs Should Not Be Imposed Against Defendant Pursuant to the Provisions of Labor Code 2699(g)(1) and Code of Civil Procedure Section 1021.5. In paragraphs 96 and 97 of the Sixth Cause of Action, Plaintiff requests that attorneys fees and costs, including prejudgment interest, be imposed against this Defendant and awarded to Plaintiff for violation of the provisions of the Labor Code as outlined in the Sixth Cause of Action. As shown from above, Plaintiff has not violated the alleged provisions of the Labor Code and therefore should not be subject to attorneys fees and costs.

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Further, the new Bill SB 989 regarding the Private Attorney General Act (PAGA) of 2004 was introduced in Senate on 02/08/2010. According to author, Senator Holligsworth, although Governor Arnold Schwarzennegger signed urgency clean up legislation in 2004 that ended the most egregious types of Sue Your Boss lawsuits, unwarranted litigation practices persist. In particular, Senator argue, the threat of penalties and attorneys fees continue to be used by some unscrupulous plaintiffs and lawyers to extract merit-less settlements from employers, particularly small businesses, for whom it is impractical or infeasible to defend a costly lawsuit in court, despite a defensive position. (See Exhibit D to the Request for Judicial Notice, Senate Bill No. SB 989). IV. CONCLUSION. For all of the foregoing reasons, this moving Defendant respectfully requests that this Court sustain, without leave to amend, Plaintiffs Sixth Cause of Action against this Defendant. Date: July 22, 2011

BY:_______________________________ Julia Mack, Attorney for Defendant Academy Limousine Service, Inc.

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