AND ORDER ON
DEFENDANT'S MOTION FOR SUMMARY ADJUDICATION Doc. # 18
This is an action for money damages by plaintiff Kevin Williams ("Plaintiff") against defendant Robert Hilarides dba Hilarides Dairy, Hilarides Transportation, and Sierra Cattle Company (collectively, "Defendant"). Plaintiff's First Amended Complaint ("FAC"), which was removed from Kern County Superior Court on the basis of federal subject matter jurisdiction, alleges claims for relief based on unpaid overtime wages under both state and federal law, for failure of Defendant to compensate for meal breaks, rest period breaks, and for constructive termination in violation of public policy. Plaintiff also alleges a claim for recovery of unpaid wage penalties pursuant to California Labor Code §§ 203, 226.3 and 226. Currently before the court is Defendant's motion for summary adjudication of Plaintiff's first claim for relief only, which alleges failure to pay overtime wages in violation of state and federal law. Defendant contends that Plaintiff was exempt from statutory requirements for overtime payment. Federal subject matter jurisdiction exists pursuant to 28 U.S.C. § 1331. Venue is proper in this court.
FACTUAL BACKGROUND/UNDISPUTED MATERIAL FACTS
Defendant's motion for summary adjudication relies on a surprisingly small number of undisputed material facts. Defendant's second proffered undisputed material fact alleges that Plaintiff "was employed as a truck driver for Hilarides Dairy from March, 2009 to August 12, 2010, hauling milk from Hilarides Dairy to Hilmar Cheese Plaint and hay from Rio Vista, California to Hilarides Dairy." Doc. 23-2 at ¶ 2. Plaintiff disputes the proffered fact on two grounds. Plaintiff first alleges he was employed by Hilarides Transportation Company, a separate entity from the Dairy. Second, and perhaps more important, Plaintiff alleges the cargo he hauled to Hilmar Cheese Plant was a milk product that was result of the treatment of raw milk to a process of "ultra-filtration" which removed a substantial portion of the water from the untreated milk.
Defendant's first proffered material undisputed fact alleges that Plaintiff operated a truck or trucks while employed by Defendant that "had a gross vehicle weight rating of 80,000 pounds." Doc. # 23-2 at § 1. Plaintiff disputes the proffered fact contending that Defendant lacks a factual basis for the testimony and that Defendant provided competent evidence to show that the gross weight rating of the truck(s) he operated was/were less than 26,000 pounds. As to Defendant's final two proffered material facts, there is no disputed that the hay Plaintiff hauled from Rio Vista was used as feed for the cattle or that "Hilmar Cheese Company is a plant that process the milk and makes cheese." Doc. # 23-2 at ¶¶ 3, 4.
Plaintiff's original complaint was filed in Tulare County Superior Court on May 6, 2011. Plaintiff's FAC, which alleged for the first time a claim for failure to pay overtime in violation of federal law, was filed in the same court on February 17, 2012. Plaintiff's FAC was removed to this court on February 27, 2012. Plaintiff's motion to remand was denied on June 19, 2012. The instant motion for summary adjudication of Plaintiff's overtime claim for relief was filed on October 31, 2012. Plaintiff's opposition was filed on November 20. 2012, and Defendant's reply was filed on November 26, 2012. The matter was taken under submission as of December 3. 2012.
Summary judgment or summary adjudication is appropriate when it is demonstrated that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Poller v. Columbia Broadcast System, 368 U.S. 464, 467 (1962); Jung v. FMC Corp., 755 F.2d 708, 710 (9th Cir. 1985); Loehr v. Ventura County Community College Dist., 743 F.2d 1310, 1313 (9th Cir. 1984).
Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Although the party moving for summary judgment always has the initial responsibility of informing the court of the basis for its motion, the nature of the responsibility varies "depending on whether the legal issues are ones on which the movant or the non-movant would bear the burden of proof at trial." Cecala v. Newman, 532 F.Supp.2d 1118, 1132-1133 (D. Ariz. 2007). A party that does not have the ultimate burden of persuasion at trial -- usually but not always the defendant -- "has both the initial burden of production and the ultimate burden of persuasion on the motion for summary judgment." Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Companies, Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). "In order to carry its burden of production, the moving party must either produce evidence negating an essential element of the nonmoving party's claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial." Id.
If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968); Ruffin v. County of Los Angeles, 607 F.2d 1276, 1280 (9th Cir. 1979). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the mere allegations or denials of its pleadings, but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. Rule 56(e); Matsushita, 475 U.S. at 586 n.11; First Nat'l Bank, 391 U.S. at 289; Strong v. France, 474 F.2d 747, 749 (9th Cir. 1973). The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, Anderson, 477 U.S. 248-49; Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).
In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." First Nat'l Bank, 391 U.S. at 290; T.W. Elec. Serv., 809 F.2d at 631. Thus, the "purpose of summary judgment is to 'pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee's note on 1963 amendments); International Union of Bricklayers v. Martin Jaska, Inc., 752 F.2d 1401, 1405 (9th Cir. 1985).
In resolving the summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Rule 56(c); Poller, 368 U.S. at 468; SEC v. Seaboard Corp., 677 F.2d 1301, 1305-06 (9th Cir. 1982). The evidence of the opposing party is to be believed, Anderson, 477 U.S. at 255, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party, Matsushita, 475 U.S. at 587 (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)(per curiam); Abramson v. University of Hawaii, 594 F.2d 202, 208 (9th Cir. 1979). Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987).
Plaintiff's claims for failure to pay overtime compensation are alleged in Plaintiff's first claim for relief pursuant to California Business & Professions Code § 17200 which provides a cause of action for "any unlawful, unfair, or fraudulent business act or practice . . . ." Id. The violation of a federal statute may serve as the predicate for a claim pursuant to section 17200. See Citizens for a Better Environment - California v. Union Oil Co. Of California, 996 F.Supp. 934, 938 (N.D. Cal. 1997) ("The fact that most violations of § 17200 are based on violations of state law does not preclude the use of a violation of federal law as a grounds for § 17200 liability"). Plaintiff alleges that Defendant failed to pay overtime wages due in violation of California Labor Code § 1194 and Wage Order No. 9-2001 and failed to pay overtime in violation of the Fair Labor Standards Act ("FLSA") 29 U.S.C. §§ 201 and 207. There is no dispute that Plaintiff commonly worked between 12 and 17 hours per day -- an amount that would warrant overtime ...