United States District Court, E.D. California
MEMORANDUM AND ORDER
MORRISON C. ENGLAND JR. UNITED STATES DISTRICT JUDGE
putative class action, Plaintiff Christina Culley alleges
various employment claims under California law against her
former employers, Defendants Lincare Inc. and Alpha
Respiratory Inc. Apart from her class action claims,
Plaintiff also sets forth several claims under
California's Private Attorney General Act
(“PAGA”). On October 20, 2016, Defendants filed a
Motion for Partial Summary Judgment, ECF No. 67, in which
they sought to resolve 15 legal issues. The Court granted
that motion in part and denied it in part in its February 21,
2017, Memorandum and Order. ECF No. 75. Now before the Court
is Defendants' Motion for Leave to File Second Motion for
Summary Judgment, ECF No. 76, and Plaintiff's Ex Parte
Application to Strike Defendants' Second Motion for
Summary Judgment, ECF No. 83. For the reasons that follow,
Defendants' Motion is GRANTED and Plaintiff's Ex
Parte Application is DENIED.
employed Plaintiff as a Healthcare Specialist from September
2010 through September 2015. Plaintiff worked as a non-exempt
employee and claims she was entitled to overtime pay and meal
and rest breaks. Defendant Lincare Inc. paid her on an hourly
basis, and she received a bonus as additional compensation.
In addition to eight-hour shifts, she was also expected to be
on-call certain evenings and weekends to handle customer
issues that arose outside regular business hours.
August 10, 2016, the Court certified Plaintiff's two
proposed classes, defined as:
(1) all individuals who are or previously were employed by
Defendants as nonexempt employees during October 21, 2010, to
the present (the “Class Period”), for (a) failure
to pay overtime wages under the UCL and California Labor Code
section 510 (the “overtime claim”), and (b)
“failure to put in place a lawful meal period policy
applicable up to the change in policy occurring in October
2014” under the UCL (the “meal period
claim”), and (2) a subclass of Healthcare Specialist
and Service Representative employees for failure to pay
reporting time wages under the UCL (the “reporting time
Mem. & Order, ECF No. 59, at 6. The Court's February
21, 2017, Memorandum and Order adjudicating Defendants'
original Motion for Summary Judgment disposed of some of
Plaintiff's causes of action as legally insufficient and
circumscribed the relief available to Plaintiff under the
courts have discretion to entertain successive motions for
summary judgment . . . .” Hoffman v.
Tonnemacher, 593 F. 908, 911 (9th Cir. 2010). At the
same time, “district courts retain discretion to
‘weed out frivolous or simply repetitive
motions.'” Id. (quoting Knox v. Sw.
Airlines, 124 F.3d 1103, 1106 (9th Cir. 1997)). In the
Pretrial Scheduling Order, the Court ordered the parties to
file only one summary judgment motion or cross-motion, and to
seek leave of the Court if they wanted to file additional
motions. Pretrial Scheduling Order, ECF No. 52, at 4.
wish to move for summary judgment on three issues: (1)
Plaintiff's unpaid overtime claim; (2) Plaintiff's
meal period claim; and (3) the constitutionality of certain
penalties sought by Plaintiff. See Defs.' Mem.
of P & A in Supp. of Mot. for Leave to File Second Mot.
Summ. J. (“Defs.' Mot.”), ECF No. 76-1, at
2-4. Defendants claim that new evidence-expert
testimony-shows that the Defendants included their quarterly
bonus in the calculation of the class members' overtime
pay rate. Id. at 2-3. They also contend that,
“[n]ow that discovery has closed, . . . it is clear
that the class does not have a viable damages model”
that would allow Plaintiff's meal period claim to proceed
on a class basis. Id. at 3. Finally, Defendants
argue that, in light of the Court's ruling on the
original Motion for Summary Judgment, the penalties sought
for certain violations are unconstitutionally excessive.
Id. at 4 (“Plaintiff, for example, is owed
only 87 cents in overtime, making her claim for penalties in
excess of $6, 000 unconstitutionally excessive.”).
initially opposes the motion by arguing that there is no
expanded factual record to support the filing of a second
motion. See Pl.'s Opp'n at 4-5. This is
because, she claims, “the sole expansion of the factual
record is [an] expert report . . ., but that expert report
does not rely on any fact that was unknown to the Defendants
when the first Motion for Summary Judgment was filed.”
Id. at 4. Plaintiff also argues that Defendants'
opposition to the meal period claim is both frivolous and
repetitive, duplicating their opposition to class
certification. See id. at 6-8.
arguments are unavailing. An expert report certainly
constitutes evidence, regardless of the facts relied upon in
creating that report. Additionally, Defendants' objection
to the meal period claim is not duplicative of prior
arguments. Instead, “Defendants intend to challenge the
proposed damages model of the class as unworkable.”
Defs.' Mot., at 3. Defendants claim that Plaintiff has
failed to provide sufficient evidence to allow the meal
period claim to proceed on a class-wide basis. See
id. Furthermore, Plaintiff's expert report on the
subject of a damages model was submitted only on March 9,
2017, well after Defendants filed their original motion for
summary judgment. Defs.' Reply, ECF No. 79, at 8.
Accordingly, the Court finds that Defendants' proposed
Second Motion for Summary Judgment (“Second
MSJ”), ECF No. 81, is neither frivolous nor repetitive.
Instead, it appears likely that allowing a second motion for
summary judgment will “foster the ‘just, speedy,
and inexpensive' resolution' of this suit, ”
Hoffman, 593 F.3d at 911 (quoting Fed.R.Civ.P. 1),
by resolving several issues prior to trial. Thus,
Defendants' Motion is GRANTED.
reasons provided, Defendants' Motion for Leave to File
Second Motion for Summary Judgment, ECF No. 76, is GRANTED,
and Plaintiffs Ex Parte Application to Strike Defendants'