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Derum v. Saks & Co.

United States District Court, S.D. California

March 26, 2015

ILIA DERUM, on behalf of herself and all others similarly situated, Plaintiff,
v.
SAKS & COMPANY, a New York corporation, Defendant

For Ilia Derum, on behalf of herself and all others similarly situated, Plaintiff: Alisa A. Martin, LEAD ATTORNEY, Amartin Law, PC, San Diego, CA.

For Saks & Company, a New York corporation, Defendant: Francis S Lam, LEAD ATTORNEY, Jennifer Bates Zargarof, Sidley Austin LLP, Los Angeles, CA.

Page 1222

ORDER DENYING SAKS & COMPANY'S MOTION FOR SUMMARY JUDGMENT

Hon. Jeffrey T. Miller, United States District Judge.

Before the court is Defendant Saks & Company's (" Saks's" ) motion for summary judgment, (Doc. No. 15), and its related request for judicial notice, (Doc. No. 15-3). The matters were fully briefed and were found suitable for resolution without oral argument pursuant to Local Civil Rule 7.1(d)(1). For the reasons set forth below, the court denies Saks's motion for summary judgment and its request for judicial notice.

BACKGROUND

In this putative class action, Plaintiff Ilia Derum asserts that Saks violated California Labor Code § 226(a), which requires employers to provide accurate itemized wage statements that include, among other things, the inclusive dates of the relevant pay period.

Plaintiff was a sales associate for Saks at a Saks Off Fifth store for about seven weeks, beginning on May 6, 2014. (Doc. No. 15-7 (" Joint Stip." ) ¶ 1; Doc. No.15-6 (" Rodriguez Decl." ) ¶ 3.) At the beginning of her employment, she received, reviewed, and kept a copy of Saks's " Associates Handbook." (Joint Stip. ¶ 2.) The handbook stated: " Hourly Associates are paid weekly and checks are dated on Friday for the previous pay period. The pay period runs Sunday to Saturday." (Rodriguez Decl., Exh. B.) The handbook provided instructions for how to sign up for Direct Deposit, and it stated: " If Direct Deposit is not elected, live payroll checks are distributed via U.S. Mail to all Associates. 2008-current payroll checks can be viewed in Employee Self Service (ESS) via the S Portal at: 4 http://associates.saksincorporated.com." (Id.) It stated further:

There are two sections to paychecks:

1. The check.
2. A statement of your earnings for the pay period, as well as deductions that you have authorized and/or the government requires, are itemized.

(Id.)

Plaintiff was informed that hard-copy paychecks would include detachable wage statements, and she chose to receive her checks by mail rather than by direct deposit. (Doc. No. 19-2 (" Pl.'s Decl." ) ¶ 2; Doc. No. 15-5 (" Lowry Decl." ) ¶ 8.) Accordingly, she was issued a paper paycheck every Friday from May 16, 2014, to June 20, 2014. (Joint Stip. ¶ 3.) Attached to each paycheck was an itemized pay stub, which listed, among other things, the number of hours worked, gross earnings, itemized withholdings for taxes and other deductions, net pay, and the end date for the pay period. (Joint Stip. ¶ 3; Pl.'s Decl., Exh. 1.) The parties agree, however, that the hard-copy pay stubs did not include the beginning date of the pay period. (Joint Stip. ¶ 3; Pl.'s Decl., Exh. 1.)

For each pay period, Saks also uploaded to its ESS website an electronic wage statement. (Lowry Decl. ¶ 9 & Exh. A.) Unlike the pay stubs, the electronic statements included the beginning date of the pay period. (Lowry Decl., Exh A.)

Page 1223

Because of an error in Plaintiff's form W-4, all of her wages were being withheld as taxes, so the net pay on her first four paychecks was listed as " 00." (Pl.'s Decl. ¶ ¶ 9, 11 & Exh. 1.) What happened then is the matter of some dispute.

According to Maria Rodriguez, the store's Selling and Service Manager, when Plaintiff contacted her about the problem with her paychecks, Rodriguez sat down with Plaintiff and used Plaintiff's log-in and password to access the ESS system and review Plaintiff's electronic wage statements with her. (Rodriguez Decl. ¶ ¶ 1, 7.) Rodriguez further states in her declaration that Plaintiff received a copy of the Associates Handbook, and that a flyer posted in the employee break room informed employees as to what their identification and passwords were to access the ESS website. (Id. ¶ 4 & Exh. A.)

According to Plaintiff, when she contacted Rodriguez about the problem with her paychecks, Rodriguez logged into the system, reviewed Plaintiff's W-4 form without Plaintiff's help and without showing Plaintiff her electronic wage statements, and printed a new blank W-4 form for her to fill out. (Pl.'s Decl. ¶ 11.) She does not remember anyone at Saks directing or encouraging her to review her paychecks on ESS, and she does not recall anyone telling her that the information contained in her pay stubs was in any way different from the information contained in the electronic wage statements on ESS. (Id. ¶ 8.) She believed that her hardcopy pay stubs were identical to the ESS statements, and no one told her anything to make her think otherwise. (Id.) She also does not recall anyone encouraging her to review the flyer and does not remember seeing it in the employee breakroom or anywhere else. (Pl.'s Decl. ¶ 7.)

The parties agree, however, that Plaintiff never tried to access the ESS system to retrieve her electronic wage statements. (Joint Stip. ¶ 4.)

Plaintiff initiated this putative class action in San Diego Superior Court on July 15, 2014, alleging that Saks failed to provide proper wage statements in violation of California Labor Code § 226(a) by failing to include the pay-period start date on her pay stubs. (Doc. No. 1, Exh. 3.) Saks removed the case to this court on August 15, 2014, pursuant to the Class Action Fairness Act, 28 U.S.C. § 1332(d)(2). (Doc. No. 1.) On October 24, 2014, with leave of court, Plaintiff filed the operative first amended complaint, which added a cause of action for penalties under the Private Attorneys General Act of 2004 (" PAGA" ), California Labor Code § 2699, based on the alleged violation of California Labor Code § 226(a). (Doc. No. 11.) Plaintiff seeks to litigate on behalf of all persons employed in California by Saks at any time since July 14, 2013. (Id. ¶ 9.)

After meeting and conferring, the parties agreed that there is a threshold issue that should be resolved by an early summary judgment motion before they litigate the issue of class certification, namely, whether Saks violated California Labor Code § 226 by providing Plaintiff with a pay stub attached to her paychecks that did not include the beginning pay-period date, when it also issued electronic wage statements that did contain the beginning pay-period date. (Joint Stip. at 2.)

On December 19, 2014, Saks filed the instant motion for summary judgment, (Doc. No. 15), and a related request for judicial notice, (Doc. No. 15-3). Plaintiff filed an opposition on February 9, 2015, (Doc. No. 19), and Saks replied on February 16, 2015, (Doc. No. 20).

DISCUSSION

A. Request for Judicial Notice

Saks asks the court to take judicial notice of two items from the docket for

Page 1224

Peabody v. Time Warner Cable, Inc., No. CV 09-6485-AG (RNBx), which was litigated in the United States District Court for the Central District of California: (1) the plaintiff's opposition to the defendant's motion for summary judgment, dated August 9, 2010; and (2) the court's order granting summary judgment for the defendant, dated November 1, 2010. (Doc. No. 15-3.) The documents are not available on the commercial legal databases, but are attached to Saks's request for judicial notice. (Id, Exhs. A & B.) Saks contends that judicial notice of these documents is proper because they are court filings, publicly accessible on the Central District's CM/ECF website, and not subject to reasonable dispute. (Id. at 2.)

Plaintiff opposes Saks's request. (Doc. No. 19 at 8 n.2.) She asserts that the court should decline to take notice of the documents because Saks failed to show why they are appropriate for judicial notice or relevant to this case. (Id.) She argues that " [t]he only apparent purpose of Saks' request is to imbue the documents with precedential value they neither have nor can acquire." (Id.)

Rule 201 is a method of establishing facts that are not reasonably subject to dispute, not legal principles. See Fed.R.Evid. 201(a) & advisory committee note to subdivision (a) (regarding the difference between adjudicative facts and legislative facts). Here, Saks asks the court to consider Peabody for the legal principle it represents, not to establish a fact at issue in this case. Although the order was not published in the commercial legal databases, there is nothing special, in precedential terms, about the orders that are selected (or not selected) for inclusion in the commercial databases, and it is well established that courts may consider the legal reasoning and conclusions of other federal courts without resort to Rule 201. See McVey v. McVey,26 F.Supp.3d 980, ...


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