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Cleveland v. Groceryworks.com, LLC

United States District Court, N.D. California

August 4, 2016

DARREN CLEVELAND, as an individual, Plaintiff,
v.
GROCERYWORKS.COM, LLC; and DOES 1 through 10, inclusive, Defendant.

          ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT RE: DKT. NO. 71

          JOSEPH C. SPERO Chief Magistrate Judge

         I. INTRODUCTION

         This case is before the Court on a motion for partial summary judgment by Defendant Groceryworks.com, LLC d/b/a Safeway.com and Vons.com ("Groceryworks") as to claims by Plaintiff Darren Cleveland that Groceryworks violated the California Labor Code and the California Unfair Competition Law (the "UCL"), and his request for punitive damages under both statutes. Originally brought in state court as a putative class action on December 17, 2013, the case was the removed to federal court on January 15, 2014. For the reasons discussed below, Groceryworks's Motion is DENIED as to Claims 2 (a claim for failure to provide meal breaks) and 6 (a claim under the UCL) and GRANTED as to all others at issue. Cleveland may also proceed on Claims 7 and 8, which are not at issue in the present Motion.[1]

         II. BACKGROUND

         A. Factual Background

         Groceryworks is an online shopping and delivery service. Customers place their grocery orders online, Safeway and Vons grocery store employees collect and package the groceries, and Groceryworks's drivers deliver the groceries to customers. Henry Decl. (dkt. 79) ¶ 2. Groceryworks hired Cleveland as a part time driver on April 8, 2008, with a base salary of $14.00 per hour. Id. at ¶ 3. Cleveland requested a promotion to full time status in September 2013, which was granted on October 20, 2013 based on Groceryworks's business needs, and was paid at the increased rate of $17.67 per hour. Id. at ¶ 5.

         During the course of his employment at Groceryworks, Cleveland worked at several stores, but primarily worked within the NorCal 3 operations area. Ilg Decl. (dkt. 85) Ex. A (Cleveland Dep.) 13:22-15:15. Within NorCal 3, he spent the majority of his time working out of Safeway store 2708 in Alameda, California. Id. When Cleveland first joined Groceryworks, Yvette Gutierrez was the operations manager overseeing NorCal 3. Id. at 22:01-04. She was succeeded by Tonya Webster, who became NorCal 3 operations manager approximately one year after Cleveland joined the company, in August 2009. Id. at 21:22-22:15. The operations manager position is responsible for overseeing delivery goals, budgets, hiring, firing, training, performance management, and analyzing store delivery metrics, including sales. Barnes Decl. (dkt. 81) ¶ 2. While Cleveland was employed at Groceryworks, the operations manager was Cleveland's supervisor. Cleveland Dep. 21:22-22:15.

         Cleveland was terminated on December 5, 2013, purportedly because Groceryworks determined that he used profanity with a manager regarding Groceryworks's human resources website, and that he was dishonest during its investigation of the profane email, which Cleveland maintains that he did not write. Henry Decl. ¶ 6; Ilg Decl. Ex. A (Henry Dep.) 33:04-06; Cleveland Dep. 158:15-159:06, 259:07-15. Cleveland believes that his termination was in fact due to Groceryworks's desire to withhold full time employment benefits from him once he expressed his desire to become a full time employee. Id. at 161:24-165:03, 259:22-25.

         1. Groceryworks Scheduling

         Groceryworks drivers are assigned to either a morning shift, an afternoon shift, or both, by their operations manager. Cleveland Dep. 22:24-23:04. Morning shifts generally run from 10:00 A.M. until 3:00 P.M. Id. at 26:05-11, 28:02-04. Afternoon shifts generally run from 4:00 P.M. until 9:00 P.M. Id. at 28:05-09. There is an hour gap between the end of the morning shift and the beginning of the afternoon shift, in which drivers are to return to the store, eat their lunch, and prepare for the upcoming shift if they have one. Id. at 37:17-37:24, 38:10-38:21; Barnes Decl. ¶ 12.

         Groceryworks uses Descartes Route Planner ("Descartes") software to plan delivery routes. Barnes Decl. ¶ 8. Based on customers' order details and addresses, Descartes generates a daily "driver route report" which specifies the time the driver should depart from the store in order to timely fulfill the orders.[2] Id. Suggested departure times are communicated to the driver before the start of their shifts so that they know what time to arrive at the store to begin their shift. Id. Upon arrival at the store, drivers receive a "delivery manifest, " generated by Descartes, that details the most efficient delivery order based on customer addresses. Id. at ¶ 9; Cleveland Dep. 47:12- 18. Delivery manifests changed on a daily basis because customer orders varied from day to day. Cleveland Dep. 31:16-25.

         Cleveland's operations manager, Tonya Webster, used both automated and manual timekeeping systems to monitor drivers' compliance with Groceryworks's meal, rest, and timekeeping policies. Henry Decl. ¶ 16. Manual and automated time entries are recorded into Groceryworks's electronic timekeeping system called "Oasis." Id. Drivers work in the field without supervision, but as a general practice, are expected to return to their assigned store at the end of the morning shift, clock out of Oasis, take lunch, then clock back in on Oasis to begin their afternoon shift if they are scheduled for one. Id. at ¶ 17. If drivers are not able to return to the store for lunch, for reasons such as delays in the projected delivery schedule, drivers are told to take an off-duty "on-the-road" lunch. Id. at ¶ 18. Drivers who take on-the-road lunches are required to call either their assigned operations manager or the operations manager in charge from the road to report the time the lunch break started and ended. Id.; Cleveland Dep. 135:20-136:04.

         These times are manually recorded by the operations manager into either a "Daily Tracker Report" or an "Automated Payroll Entry, " which are then entered into Oasis by the operations manager prior to the close of the payroll period. Henry Decl. ¶ 18. During Cleveland's employment, Groceryworks's Payroll Department issued "Driver Punch Reports, " which reflected each driver's time punches as well as whether these entries had already been manually modified in Oasis by their operations manager. Id. at ¶ 20.

         Cleveland received multiple performance evaluations during his employment, based on several factors. Henry Decl. ¶ 4. One such factor was Cleveland's "drops per hour" ("DPH") quota. Cleveland Dep. 110:11-111:08; Henry Decl. ¶ 4 & Ex. A at ¶ 000056-59. Drivers were expected to make two DPH. Cleveland Dep. 110:19-25; Henry Decl. ¶ 4 & Ex. A at ¶ 000057. Cleveland testified that he received bad reviews for failing to make his DPH quota, which he attributes to delays beyond his control not taken into account by Groceryworks in calculating drivers' DPH.[3] Cleveland Dep. 120:21-23, 146:18-147:03. The two reviews criticizing Cleveland's DPH were authored by his first operations manager, Yvette Gutierrez.[4] Henry Decl. ¶ 4 & Ex. A at ¶ 000056-59. Groceryworks did not use DPH as a metric to evaluate Cleveland's performance in any review after Tonya Webster became NorCal 3 operations manager in August 2009. Henry Decl. ¶ 4.

         2. Groceryworks’s Wage and Hour Policies

         Groceryworks maintained formal policies concerning timekeeping and rest and meal breaks. Henry Decl. ¶¶ 9-15. Groceryworks communicated these policies to its drivers primarily through its Drivers Handbook. Id. at ¶ 10. Cleveland received this handbook, effective from 2005 to March 31, 2014, upon his hire in 2008. Cleveland Dep. 48:14-49:09. Cleveland also underwent training upon his hire during which Groceryworks's policies were explained. Henry Decl. ¶ 9; Cleveland Dep. 19:08-25.

         a. Timekeeping Policy against Off-the-Clock work

         Groceryworks's Drivers Handbook specifies that it is the driver's responsibility to accurately record time worked and that failure to record time accurately could result in an incorrect or delayed paycheck and is considered a severe violation of company policy and wage and hour laws. Sohlgren Decl. (dkt. 76) Ex. A at ¶ 001739-40. Cleveland testified that he understood that company rules prohibited drivers from performing off-the-clock work. Cleveland Dep. 30:19-22. Cleveland also testified that he understood that it was important to accurately record his time, and was aware that failure to abide by the Groceryworks's timekeeping policy may lead to disciplinary action, including termination. Id. at 50:21-51:04.

         Shifts, including the delivery route and the pre- and post-delivery tasks, were all scheduled to take six hours or less. Id. at 187:07-11. Cleveland, however, estimates that he spent fifty to sixty hours working off-the-clock during the span of his employment, in large part due to the need to complete various pre- and post-delivery tasks along with his scheduled route.[5] Id. at 226:07- 16. Cleveland was never disciplined for falsifying time records, or for exceeding six hours in a shift. Id. at 144:23-25, 228:10-19.

         b. Meal and Rest Period Policy and Waivers

         Groceryworks's Meal Period Policy requires that drivers take an unpaid meal period of at least thirty minutes, spanning up to one hour, no later than the completion of the fifth hour of work unless they work no more than six hours and have signed a meal period waiver. Henry Decl. ¶¶ 11, 15 & Ex. D at ¶ 062505-06, Ex. H. Drivers working over ten hours a day are entitled to take a second meal period by the completion of their tenth hour of work unless they are to work no more than twelve hours, have signed a second meal period waiver, and take their first thirty minute meal period off-duty. Sohlgren Decl. Ex. A at ¶ 000033. Drivers were told that even when they are running behind their assigned schedule, they are still required to stop for lunch for at least thirty minutes to "rejuvenate" themselves and to take rest breaks consistent with Groceryworks's policies.[6] Henry Decl. ¶ 12 & Ex. E at ¶ 003422; Barnes Decl. ¶ 18; Cleveland Dep. 129:13-24.

         Besides the six and ten hour meal period waivers, which Cleveland received and signed upon his hire, Groceryworks provided Cleveland and other drivers with an on-duty meal period agreement. Cleveland Dep. 100:08-19, 103:13-23, 104:13-24. The on-duty meal period agreement states that employees are provided with a thirty minute meal period for every five hours of work except when the nature of the work prevents an employee from being relieved of all duty, such as in rare circumstances like a truck breakdown, where Groceryworks and the driver may mutually consent to waive the off-duty meal period and agree that the driver will instead be compensated for having to take their lunch on-duty. Cleveland Dep. 100:08-19; Henry Decl. ¶ 20. The Driver Punch Reports, Daily Tracker Reports, and Automated Payroll Entry Reports reflect these on duty meal periods as a paid missed meal break. Henry Decl. ¶ 20.

         Groceryworks's Rest Period Policy authorizes drivers to take a paid fifteen minute rest period for every four hours of work. Henry Decl. Ex. C at ¶ 001720, Ex. D at ¶ 062506. Drivers are told to take their first rest period prior to lunch, and their second rest period after lunch. Id. ¶ 10 & Ex. C at ¶ 001720. Drivers working an excess of ten hours a day are authorized to take a third ten minute rest period. Id. ¶ 11 & Ex. D at ¶ 062606. Rest periods are to be taken in the middle of each work period where practicable. Id. Similar to Groceryworks's policy on meal breaks, drivers were told to manage their own schedules and routes to ensure that they took rest breaks in compliance with company policy, even if it meant that routes were late. Barnes Decl. ¶ 15 & Ex. C at Cleveland-001576; Cleveland Dep. 113:21-25.

         Besides the Drivers Handbook, Groceryworks also communicated its meal and rest break policy to Cleveland and other employees on several later occasions. In May 2008, Groceryworks circulated a document titled "Frequently Asked Questions Regarding Safeway's Meal & Rest Period Policy" to all its drivers, including Cleveland, and posted it in common areas around stores in California, including store 2708. Henry Decl. ¶ 12 & Ex. E. On May 19, 2008, a "Reminder re: Meal and Rest Periods for Safeway.com California Drivers" was distributed to all drivers including Cleveland. Id. at ¶ 11 & Ex. D. A meal period policy reminder was distributed to Cleveland and other drivers on June 3, 2011, July 7, 2011, October 19, 2009, November 10, 2011, and on July 18, 2012, and May 8, 2013, Cleveland and other drivers received another meal and rest break policy reminder. Barnes Decl. ¶ 7 & Ex. B; Henry Decl. ¶¶ 13-15 & Exs. F-H. Further, Tonya Webster discussed these policies at drivers' meetings, which Cleveland attended. Barnes Decl. ¶ 6 & Ex. A.

         Cleveland never received a write-up for a lunch or rest break violation. Cleveland Dep. 124:25-125:10, 182:24-183:01.

         B. Procedural History

         On December 13, 2013, Darren Cleveland brought suit in the California Superior Court, Alameda County, as a putative class action against his former employer Groceryworks alleging violations of the California Labor Code (Claims 1-5), the UCL (Claim 6), and the federal Employment Retirement Income Security Act ("ERISA") (Claims 7-8). See generally Notice of Removal (dkt. 1) Ex. A (Compl.). Groceryworks answered Cleveland's Complaint on January 10, 2014. See Notice of Removal Ex. C (Answer). Groceryworks timely removed the case to federal court on January 15, 2014 on federal question grounds. See generally Notice of Removal.

         After multiple mediation sessions, Cleveland moved for preliminary approval of a class settlement on September 30, 2015, attaching a proposed settlement agreed to by both parties. First Motion for Preliminary Approval (dkt. 59) & Ex. 1. At a hearing on November 30, 2015, the Court identified several defects in Cleveland's Motion for Preliminary Approval. Minute Order (dkt. 62). After Cleveland submitted supplemental materials that failed to ameliorate all of the Court's concerns, the Court denied without prejudice Cleveland's First Motion for Preliminary Approval on December 16, 2015. Order (dkt. 65). Cleveland did not file a renewed motion for preliminary approval within the deadline to do so, instead electing to proceed on his individual claims.

         Groceryworks filed its instant Motion for Partial Summary Judgment on April 6, 2016. See Mot. (dkt. 71). Groceryworks moves for summary judgment on the following claims: Claim 1, that Groceryworks failed to compensate Cleveland for all hours worked in violation of California Labor Code sections 200, 226, 500, 510, 1197, and 1198; Claim 2, that Groceryworks failed to provide Cleveland with meal and rest breaks, as required by California Labor Code sections 226.7 and 512; Claim 3, that Groceryworks failed to furnish Cleveland with accurate wage statements pursuant to California Labor Code section 226(e) and 226.3; Claim 4, that Groceryworks failed to maintain accurate employee time records in violation of California Labor Code section 1174; Claim 5, that Groceryworks failed to timely pay Cleveland his final paycheck, as required under California Labor Code sections 201 through 203; and Claim 6, that Groceryworks's violations of federal employment laws and state wage and hour laws constitute a violation of the California UCL. Mot. at 2-3. Groceryworks also moves for summary judgment on Cleveland's prayer for punitive damages. Id. Groceryworks has not moved for summary judgment as to Cleveland's seventh and eighth claims, arising under ERISA.

         C. Arguments on Motion for Summary Judgment

         1. Groceryworks’s Motion

         In its Motion, Groceryworks argues that it is entitled to summary judgment on Cleveland's California Labor Code claims for the following reasons. See generally Mot. First, as to Claim 1, Groceryworks argues that Cleveland has submitted no evidence that he worked off-the-clock or that Groceryworks had actual or constructive knowledge of his off-the-clock work. Mot. at 7-10. Alternatively, Groceryworks argues that Cleveland is estopped from seeking compensation for unreported hours where Cleveland was responsible for submitting false time records to Groceryworks. Id. at 10. As to Claim 2, Groceryworks argues that Cleveland has submitted no evidence that it failed to provide him with meal and rest breaks. Id. at 11-16. As to Claim 3, Groceryworks contends not only that this claim for failure to furnish accurate wage statements is derivative of Cleveland's other wage and hour claims, which it maintains should fail, but also that Cleveland has submitted no evidence that Groceryworks knowingly and intentionally provided him with nonconforming statements. Id. at 16. Alternatively, to the extent that Cleveland's claim is based on the nonpayment of meal and rest period premiums, Groceryworks argues that a plaintiff cannot assert an inaccurate wage statement claim on the basis of these premiums. Id. at 16-17. As to Claim 4, Groceryworks argues not only that this claim is derivative of Cleveland's other wage and hour claims, but also that California Labor Code section 1174 does not establish a private right of action for failure to maintain accurate time records. Id. at 17-18. As to Claim 5, Groceryworks argues that not only is this claim derivative of Cleveland's other wage and hour claims, but also that Cleveland has submitted no evidence that Groceryworks willfully failed to pay him all final wages due. Id. at 18. Further, Groceryworks argues that California law prevents Cleveland from seeking waiting time penalties to the extent that he does so on the basis of nonpayment of missed meal and rest period premiums. Id. at 18-19.

         Groceryworks argues that it is entitled to summary judgment on Claim 6, Cleveland's UCL claim, because it claims that Cleveland cannot prevail under the UCL unless he can show that he is entitled to either an injunction or restitution, which Groceryworks argues that Cleveland cannot do. Id. at 19-22. Groceryworks also argues that Cleveland's claim for punitive damages is barred because neither the Labor Code nor the UCL make punitive damages available. Id. at 22.

         In support of its Motion, Groceryworks submits the declaration of its attorney Eric Sohlgren, attaching excerpts of Cleveland's July 2, 2014 deposition and a December 16, 2008 declaration by Cleveland used in prior litigation, and declarations by Judi Henry, Groceryworks's Human Resources Representative, and Charles Barnes, a Groceryworks operations manager, addressing Cleveland's employment history and Groceryworks's policies and procedures. See generally Sohlgren Decl. Exs. A-B; Henry Decl.; Barnes Decl. The Henry and Barnes declarations attach several exhibits: Cleveland's performance evaluations, Cleveland's application for full time status, Groceryworks's Driver Handbook, email reminders of Groceryworks's meal and rest breaks policies, and agendas for drivers' meetings. Henry Decl. Exs. A-H; Barnes Decl. Exs. A-D.

         2. Cleveland’s Opposition

         In his Opposition, Cleveland asserts that he has presented sufficient evidence to defeat summary judgment. See generally Opp'n (dkt. 83). As to Claim 1, Cleveland argues that there is sufficient evidence that he worked off-the-clock, and that Groceryworks had knowledge of this fact. Id. at 2-3. As to Claim 2, Cleveland argues that he has presented sufficient evidence that Groceryworks, through its policies and procedures, constructively prevented or discouraged him from taking his meal and rest periods by requiring him to maintain a DPH quota. Id. at 5-8. As to both Claims 3 and 5, Cleveland argues that Groceryworks has mischaracterized the law as to his waiting time penalty and failure to timely pay a final paycheck claims, and that an employer's nonpayment of meal and rest break premiums can trigger liability under both Labor Code provisions. Id. at 8-12. As to Claim 4, Cleveland states that California Labor Code section 1174 does create a private action, and that because Cleveland has presented "a wealth of evidence . . . that he is entitled to unpaid wages, " he may also assert a claim under section 1174 for Groceryworks's purported failure to keep accurate records of Cleveland's hours worked. Id. at 8. As to Claim 6, Cleveland argues that he can maintain a claim under the UCL so long as the business practice is unfair, which he contends it is in this case, and that his UCL claims should not be dismissed because they are also predicated on Cleveland's ERISA claims, not challenged by Groceryworks in its present Motion. Opp'n at 12. Cleveland does not respond to Groceryworks's argument regarding punitive damages.

         Cleveland's Opposition is supported by his own April 20, 2016 declaration and the declaration of his counsel, Stephen Ilg. The Ilg declaration attaches several exhibits: Cleveland's full deposition testimony, the depositions of Tonya Webster and Judi Henry, and declarations made by two of Groceryworks's drivers, John Green and Basheer Robinson, describing Groceryworks's policies and procedures. Ilg Decl. Exs. A-D.

         3. Groceryworks’s Reply

         Groceryworks's Reply argues that, as to Claim 1, Cleveland has submitted no evidence besides his own "rank speculation" that Groceryworks knew or should have known about his off-the-clock work, and that Cleveland failed to address Groceryworks's argument that he is estopped from seeking compensation on this claim due to Cleveland's falsification of time records. Reply (dkt. 88) at 1-3. As to Claim 2, Groceryworks reasserts that Groceryworks did not interfere with Cleveland's ability to take his rest and meal breaks, and argues that Cleveland's subjective opinion that his workload was too heavy cannot defeat summary judgment. Id. at 3-6. Third, as to Claim 3, Groceryworks reasserts that Cleveland has put forth no evidence that Groceryworks knowingly and intentionally failed to provide Cleveland with accurate wage statements, and further reasserts that the nonpayment of premiums cannot serve as a predicate basis for wage statement liability under California law. Id. at 7-8. Fourth, Groceryworks maintains that California Labor Code section 1774 does not provide a private right of action, barring Cleveland's Claim 4 as a matter of law. Id. at 9. As to Claim 5, Groceryworks reasserts that waiting time penalties are not available to Cleveland as a matter of law to the extent that they are based on the nonpayment of meal and rest premiums, and further contends that Cleveland has submitted no evidence that Groceryworks willfully failed to pay these penalties. Id. at 9-10. As to Claim 6, Groceryworks reasserts that Cleveland's UCL claims should be dismissed since they are derivative of his statutory claims which Groceryworks argues should fail. Id. at 10. Groceryworks does not address Cleveland's argument that his UCL claim should stand to the extent that it is based on his unchallenged ERISA claims.

         4. Evidentiary Objections

         Groceryworks also filed an objection to several of Cleveland's statements in his April 20, 2016 declaration, which are discussed in context below. See generally Groceryworks's Amended Objections to Plaintiff's Evidence (dkt. 91) ("Obj."). First, Groceryworks objects to Cleveland's statements in his Declaration regarding Groceryworks's knowledge or awareness that he was missing meal and rest breaks and working off-the-clock on the grounds that (1) Cleveland did not lay a foundation or show how he has personal knowledge of what the company "knew" per Federal Rule of Evidence 602, and (2) the statements in his declaration contradict his previous sworn deposition testimony. See Obj. at 1-4. Groceryworks also objects to Cleveland's testimony about the operation and functioning of his refrigerated delivery truck on the grounds that has not established himself an expert in refrigerated trucks pursuant to Federal Rules of Evidence 602 and 701. Id. at 4. Lastly, Groceryworks objects to the declarations of Basheer Robinson and John Green, other Groceryworks employees, because it claims that neither have any probative value nor are they relevant to whether Cleveland was denied his breaks or wages per Federal Rules of Evidence 401, 402, 403. Id. at 5. To the extent that the challenged evidence is relevant to the Court's analysis, this Order addresses Groceryworks's objections in context below.

         III. ANALYSIS

         A. Legal Standard

         Summary judgment on a claim or defense is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). In order to prevail, a party moving for summary judgment must show the absence of a genuine issue of material fact with respect to an essential element of the non-moving party's claim, or to a defense on which the non-moving party will bear the burden of persuasion at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

         Once the movant has made this showing, the burden then shifts to the party opposing summary judgment to designate "specific facts showing there is a genuine issue for trial." Id. "[T]he inquiry involved in a ruling on a motion for summary judgment . . . implicates the substantive evidentiary standard of proof that would apply at the trial on the merits." Anderson v. Liberty Lobby Inc., 477 U.S. 242, 252 (1986). The non-moving party has the burden of identifying, with reasonable particularity, the evidence that precludes summary judgment. Keenan v. Allan, 91 F.3d 1275, 1278 (9th Cir. 1996). Thus, it is not the task of the court to scour the record in search of a genuine issue of triable fact. Id. at 1229; see Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001).

         The evidence presented by both parties must be admissible. Fed.R.Civ.P. 56(e). Conclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment. Thornhill Publ’g Co., Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979). Hearsay statements in affidavits are inadmissible. Japan Telecom, Inc. v. Japan Telecom Am. Inc., 287 F.3d 866, 875 n.1 (9th Cir. 2002). On summary judgment, the court draws all reasonable factual inferences in favor of the non-movant, Scott v. Harris, 550 U.S. 372, 378 (2007), but where a rational trier of fact could not find for the non-moving party based on the record as a whole, there is no "genuine issue for trial" and summary judgment is appropriate. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986). In considering Groceryworks's Motion, therefore, the Court draws all reasonable inferences in favor of Cleveland.

         B. Released Claims

         The Court notes that neither party's briefs address the release obtained in a previous class action against Groceryworks. In support of its argument that it did not prevent Cleveland from taking meal and rest breaks, Groceryworks submits Cleveland's December 16, 2008 declaration, which is notable in its contradictions to Cleveland's deposition testimony and more recent April 20, 2016 declaration, as it pertains to any claims arising out of his time working at Groceryworks prior to December 16, 2008. See Mot. at 12; Sohlgren Decl. (dkt. 78) Ex. B (2008 Cleveland Decl.); cf. Cleveland Dep.; Cleveland Decl. (dkt. 84). The 2008 declaration was obtained voluntarily by Groceryworks's counsel as part of a class action suit brought against Groceryworks, in which Cleveland was a class member. Sohlgren Decl. ¶ 3 & Ex. B. That case was settled on July 22, 2010. Order Approving Final Settlement, Jason Marlow v. Von’s Grocery Co., et al., Case No. BC388354 (L.A. Super. Ct., July 22, 2010) ("Order"). Although no party raised the issue in this action, as part of the settlement, in exchange for a settlement check, plaintiffs and members of the plaintiff class agreed to release Groceryworks from all claims and causes of action under California Labor Code sections 201, 201.5, 202, 202.5, 203, 212, 216, 218.6, 226, 226.7, 510, 512, 516, 558, 1174, 1175, 1194, 1199, and 2689 et seq.; the applicable portions of California Industrial Welfare Commission Wage Orders; California Business and Professions Code section 17200 et seq.; and 29 U.S.C. § 211(c) (the "released claims"). Id. at 4-5. Groceryworks did not agree to admit any fault as part of the settlement. Id. at 5-6. Because Cleveland's claims being challenged in this present motion arise under the California Labor Code, California IWC Wage Orders, and California Business and Professions Code sections included in the aforementioned released claims, the Court finds, and Cleveland's counsel conceded at the hearing, that Cleveland has released those claims against Groceryworks insofar as they arose prior to the settlement date of July 22, 2010. Accordingly, Groceryworks's conduct prior to that date is not relevant-the issue before the Court is whether Cleveland has identified evidence of violations after the previous settlement.

         C. California Wage-and-Hour Law Violations

         1. Failure to Compensate for Off-the-Clock Work

         a. Overview

         California law requires that an employer pay for all hours that it "engage[s], suffer[s], or permit[s]" an employee to work. Morillion v. Royal Packing Co., 22 Cal.4th 575, 586 (2000). This definition is equivalent to the Fair Labor Standards Act obligation to pay for work the employer "knows or has reason to believe" the employee performs. Id. at 585 (quoting 29 C.F.R. § 785.11 (1998)). Thus, a plaintiff may establish that an employer is liable for unpaid wages if it "knew or should have known off-the-clock work was occurring." Brinker Rest. Corp. v. Super. Ct., 53 Cal.4th 1104, 1051-52 (2012). While an employer's actual or constructive knowledge of the hours its employees work is an issue of fact, the court on summary judgment must determine whether evidence has been presented that would support a finding of such knowledge. Jong v. Kaiser Health Found., Inc., 226 Cal.App.4th 391, 399 (2014). Testimony that is conclusory or speculative in nature that is presented in the moving papers is insufficient to create a genuine issue of material fact. White v. Starbucks Corp., 497 F.Supp.2d 1080, 1083-85 (N.D. Cal. 2007) (granting summary judgment against an employee who failed to submit evidence above pure conjecture that his employer had actual or constructive knowledge of the employee's work). California courts recognize a presumption that employees are doing no work while clocked out, which employees have the burden to rebut. Brinker, 53 Cal.4th at 1051.

         There is no dispute that Cleveland was aware of Groceryworks's policy prohibiting employees from performing off-the-clock work. Cleveland Dep. 30:19-22. Cleveland acknowledged that he understood Groceryworks's timekeeping policy, which specifies that drivers are responsible for accurately recording time worked and that failure to do so is considered a violation of company policy which could result in discipline, up to termination. Id. at 50:21- 51:04. Cleveland admitted that no one at Groceryworks ever asked him to work off-the-clock. Cleveland Dep. 154:22-24, 174:01-12, 227:20-22, 231:13-19. Cleveland also admitted that he never complained to anyone at Groceryworks about having to work off-the-clock. Id. at 231:20- 22. Further, Cleveland admitted at multiple points in his deposition that Groceryworks had no knowledge of this off-the-clock work, or at least that he lacks knowledge as to whether Groceryworks was aware of such work. Id. at 145:11-15, 154:22-155:02, 225:11-21. Indeed, Cleveland admits to actively misreporting his time. Id. at 145:01-05, 206:23-207:09. Cleveland's own deposition testimony demonstrates that Cleveland failed to inform others of his off-the-clock work, and there is no other evidence that Groceryworks had actual knowledge of Cleveland's off-the-clock work.

         In support of his claims and in opposition to Groceryworks's Motion, Cleveland contends instead that "[Cleveland] has sufficient evidence that he was forced to work off the clock and that [Groceryworks] knew or should have known that he was working off the clock." Opp'n at 3-4 (citing Cleveland Decl. ¶¶ 3-7). Specifically, Groceryworks had reason to believe Cleveland was working unreported hours based on Cleveland's own testimony that: (1) supervisors saw him working outside his scheduled hours; (2) he complained to his supervisor that he was running late on his shifts; and (3) Groceryworks's own policies and procedures, namely its DPH requirement, made it impossible for him to complete his tasks within his allotted six hours per shift. Opp'n at 3-5. As discussed below, however, Cleveland fails to submit evidence in support of these allegations sufficient to support an inference that Groceryworks had constructive knowledge of his off-the-clock work, as Cleveland has the burden to prove at trial.

         b. Evidentiary Objections Regarding Off-the-Clock Work

         As a preliminary matter, Groceryworks objects to statements in Cleveland's declaration about what Groceryworks "knew" on two grounds.[7] See generally Obj. First, Groceryworks objects to these statements on the grounds that Cleveland has failed to demonstrate personal knowledge of what the company "knew, " in violation of Federal Rule of Evidence 602. Id. Second, Groceryworks objects because it claims that Cleveland's declaration directly contradicts sworn statements made in his deposition, and therefore the contradictory declaration statements should be stricken under the sham affidavit rule. Id.

         As for the first objection, the Court agrees that Cleveland's statements as to Grocerywork's corporate knowledge are inadmissible to the extent that he has failed to demonstrate personal knowledge of what the company knew. Federal Rule of Evidence 602 states, "[a] witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness's own testimony." Fed.R.Evid. 602. The testimony of a witness concerning a ...


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