Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Robinson v. Open Top Sightseeing San Francisco, LLC

United States District Court, N.D. California

May 24, 2017

HAROLD C. ROBINSON, et al., Plaintiffs,
v.
OPEN TOP SIGHTSEEING SAN FRANCISCO, LLC Defendant.

          ORDER DENYING DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT; GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT RE: DKT. NOS. 133, 135

          PHYLLIS J. HAMILTON United States District Judge

         Defendant's motion for partial summary judgment and plaintiffs' motion for summary judgment came on for hearing before this court on May 10, 2017. Plaintiffs appeared through their counsel, Joel Young and Steven Tidrick. Defendant appeared through its counsel, Michael Purcell. Having read the papers filed by the parties and carefully considered their arguments and the relevant legal authority, and good cause appearing, the court hereby DENIES defendant's motion for partial summary judgment and GRANTS IN PART and DENIES IN PART plaintiffs' motion for summary judgment, for the following reasons.

         BACKGROUND

         A. Factual Background

         This is a wage and hour case that was originally filed in state court on November 26, 2013, then removed to federal court on February 26, 2014. Dkt. 1. Plaintiffs Harold Robinson, Jr. and Lawrence Muse (“plaintiffs”) represent several certified classes of bus operators for defendant Open Top Sightseeing San Francisco, LLC (“defendant” or “Open Top”). Robinson is a former employee of Open Top. See Dkt. 133-1, Decl. of Harold Robinson, Jr. (“Robinson Decl.”) ¶ 2. Muse, a current employee, was added as a class representative pursuant to an unopposed motion to ensure typicality of the class representation. See Dkt. 90.

         Open Top is a tour bus company providing “hop on/hop off” sightseeing bus tours in the San Francisco Bay Area using double-decker, open-top buses. Young Decl. Ex. D, 30(b)(6) Dep. of Andrew Smith (“Smith Dep.”) at 9:16-20, 307:7-12. Open Top is a subsidiary of Open Top Sightseeing USA (“Open Top USA”), which owns similar tour companies in a number of American cities, including Las Vegas, New York, Miami, and Washington, D.C. Dkt. 139-4, Decl. of Andrew Smith (“Smith Decl.”) ¶ 3. Open Top USA is in turn owned by Big Bus Tours Ltd., which is headquartered in London; other subsidiaries offer similar services in international cities such as Paris, London, and Hong Kong. Smith Decl. ¶ 4.

         Plaintiffs allege a number of wage and hour violations. For purposes of these motions, the essential allegation is that Open Top's bus operators worked more than 40 hours per week, but were not paid overtime compensation. The operative SAC contains ten claims, but only six remain in the case: (1) violations of the Fair Labor Standards Act (“FLSA”) for failure to pay overtime; (2) failure to provide accurate wage statements under California Labor Code § 226 and Wage Order 9; (3) waiting time penalties under California Labor Code §§ 201-203; (4) failure to provide rest breaks under California Labor Code § 226.7; (5) violations of California Business and Professions Code § 17200 (“the UCL”); and (6) violations of the Private Attorneys General Act (“PAGA”). See Dkt. 23; Dkt. 95 at 2 n.1. The instant motions concern only the FLSA claim, the UCL claim, and the waiting time penalties claim.

         B. Procedural History

         On April 23, 2014, the court dismissed the original complaint based on a failure to plead the willfulness and interstate commerce elements of the FLSA claim. Dkt. 21. The SAC followed on May 21, 2014. Dkt. 23. On July 23, 2014, the court denied defendant's second motion to dismiss. Dkt. 38.

         On December 24, 2014, the court granted plaintiffs' Hoffman-La Roche motion to certify an opt-in FLSA collective. Dkt. 51. The court ordered that notice to be sent to “all individuals who are currently employed, or formerly have been employed, by [Open Top] as a bus operator or in an equivalent position in California any time on or after December 24, 2011.” Id ¶ 2.

         In a series of orders in late 2015 and early 2016, the court certified a number of different classes pursuant to Federal Rule of Civil Procedure 23:

The “California Class” under Rule 23(b)(3).
“All individuals who are currently employed, or formerly have been employed, by Open Top Sightseeing San Francisco, LLC as a bus operator at any time on or after November 26, 2010.” This class relates to the waiting time penalties and accurate wage statement causes of action. Dkt. 95 at 2.
The “Section 17200 Class” under Rule 23(b)(3).
“All individuals who are currently employed, or formerly have been employed, by Open Top Sightseeing San Francisco, LLC as a bus operator at any time on or after November 26, 2009.” This class relates to the UCL claim.
The “Injunctive Class” under Rule 23(b)(2).
“All people employed by Open Top Sightseeing San Francisco, LLC in California as bus operators.” Dkt. 111 at 2. This class relates to claims for injunctive relief.

         Excluded from all of the classes are persons “employed by counsel for plaintiff in this action, and any judge to whom this action is assigned and his or her immediate family members.” See Dkt. 115 at 2.

         The parties have now filed cross motions for partial summary judgment. Defendant seeks a ruling that, as a matter of law, the recovery period on plaintiffs' UCL claim is limited by FLSAs two- or three-year statute of limitations, and not UCL's four-year limitations period. Dkt. 135. Plaintiffs seek judgment as a matter of law as to Open Top's liability (but not its damages) on three claims, all based on unpaid overtime: the FLSA claim, the UCL claim, and waiting time penalties claim. Dkt. 133.

         DISCUSSION

         A. Legal Standard

         A party may move for summary judgment on a “claim or defense” or “part of . . . a claim or defense.” Fed.R.Civ.P. 56(a). Summary judgment is appropriate when there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Id A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion, and of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Material facts are those that might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is “genuine” if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id.

         Where the moving party will have the burden of proof at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). On an issue where the nonmoving party will bear the burden of proof at trial, the moving party may carry its initial burden of production by submitting admissible “evidence negating an essential element of the nonmoving party's case, ” or by showing, “after suitable discovery, ” that the “nonmoving party does not have enough evidence of an essential element of its claim or defense to carry its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1105-06 (9th Cir. 2000); see also Celotex, 477 U.S. at 324-25 (moving party can prevail merely by pointing out to the district court that there is an absence of evidence to support the nonmoving party's case).

         When the moving party has carried its burden, the nonmoving party must respond with specific facts, supported by admissible evidence, showing a genuine issue for trial. Fed.R.Civ.P. 56(c), (e). But allegedly disputed facts must be material - the existence of only “some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment.” Anderson, 477 U.S. at 247-48.

         When deciding a summary judgment motion, a court must view the evidence in the light most favorable to the nonmoving party and draw all justifiable inferences in its favor. Id. at 255; Hunt v. City of Los Angeles, 638 F.3d 703, 709 (9th Cir. 2011). In adjudicating cross-motions for summary judgment, the Ninth Circuit “evaluate[s] each motion separately, giving the nonmoving party in each instance the benefit of all reasonable inferences.” ACLU of Nevada v. City of Las Vegas, 466 F.3d 784, 790-91 (9th Cir. 2006) (citations omitted).

         B. Analysis

         1. Defendant's Motion for ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.