United States District Court, N.D. California
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT RE: DKT.
C. SPERO Chief Magistrate Judge
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.
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.
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.
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.
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. ¶
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. 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.
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.
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.
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. 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. 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.
Groceryworks’s Wage and Hour Policies
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.
Timekeeping Policy against Off-the-Clock work
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.
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. 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,
and Rest Period Policy and Waivers
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. Henry Decl. ¶ 12 & Ex. E at
¶ 003422; Barnes Decl. ¶ 18; Cleveland Dep.
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.
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.
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.
never received a write-up for a lunch or rest break
violation. Cleveland Dep. 124:25-125:10, 182:24-183:01.
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.
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
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.
Arguments on Motion for Summary Judgment
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.
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
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.
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
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.
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.
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.
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).
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).
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.
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.
California Wage-and-Hour Law Violations
Failure to Compensate for Off-the-Clock Work
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.
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
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.
Evidentiary Objections Regarding Off-the-Clock Work
preliminary matter, Groceryworks objects to statements in
Cleveland's declaration about what Groceryworks
"knew" on two grounds. 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.
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 ...