United States District Court, N.D. California, San Francisco Division
ARIANNA SUAREZ, on behalf of herself and all others similarly situated, Plaintiff,
BANK OF AMERICA CORPORATION, Defendant.
ORDER GRANTING IN PART AND DENYING IN PART BANK OF
AMERICA'S MOTION FOR PARTIAL SUMMARY JUDGMENT RE: ECF NO.
BEELER United States Magistrate Judge.
putative class action, named plaintiff Arianna Suarez sued
her former employer, Bank of America, for state-law
wage-and-hour violations. Bank of America moved for partial
summary judgment on two of the class claims (claim six,
charging a failure to pay final wages on time, and claim
eight, charging a failure to furnish accurate wage-and-hour
statements), on the grounds that it paid the plaintiff's
wages on time (for claim 6) and the accuracy challenge to the
wage statements fails as a matter of law (for claim
The court grants the motion in part (1) for claim six, to the
extent that it is predicated on vacation pay that Bank of
America undisputedly paid, and (2) for claim eight, to the
extent that the one-year statute of limitations bars the
claim for statutory penalties. The court otherwise denies the
The Plaintiff's Wage Statements
America paid Ms. Suarez biweekly and issued electronic wage
statements for each biweekly pay period. Ms. Suarez had
access to her wage statements but never identified any
inaccuracies in them.
Suarez began working for Bank of America in April 2003 as a
teller. Bank of America terminated her employment
on September 27, 2017. By that time, she was a Financial Center
Operations Manager, or Assistant Manager, at Bank of
America's Albany, California branch. Ms. Suarez did
not review her final pay check or wage statements and was
unaware that her final paycheck included a sum equivalent to
124.17 hours of vacation pay. She concedes that she was paid
her unused accrued wages when she was
parties' briefs recount, Ms. Suarez had many approved
leaves of absences, generally for medical
reasons. In relevant part for Bank of
America's statute-of-limitations defense to claim eight,
Ms. Suarez found out that she was pregnant in June 2016 and
was on approved leaves of absence starting on October 20,
2016. Her last official day of work before her
leave was October 21, 2016. Her absences were extended
through at least June 2017. While not relevant to this
motion, a change in third-party leave administrators (from
Aetna to MetLife) led to confusion about Ms. Suarez's
approved-to-return-to-work date (which was scheduled for some
time between June and July 2017) and whether she had
submitted documentation to extend her leave of absence beyond
that date. But it is undisputed that her last day
in the office - before she went on an approved medical leave
- was October 21, 2016.
Relevant Procedural History
has the following class claims: (1) claim one, charging a
failure to compensate for all hours worked (including work
“off the clock” and overtime wages), in violation
of the California Labor Code; (2) claim two, charging a
failure to pay minimum wage, in violation of the California
Labor Code; (3) claim three, charging a failure to provide
meal-and-rest breaks, in violation of the California Labor
Code; (4) claim five, charging a failure to pay vacation time
at termination, in violation of the California Labor Code;
(5) claim six, charging a failure to pay final wages on time,
in violation of the California Labor Code; (5) claim eight,
charging a failure to provide accurate wage-and-hour
statements, in violation of the California Labor Code; and
(6) claim twenty, charging unfair business practices, in
violation of California's Unfair Competition
Law. Bank of America moved for summary
judgment on claims six and eight. The court held a hearing on
September 26, 2019.
court must grant a motion for summary judgment if the movant
shows that there is no genuine dispute as to any material
fact and the moving party is entitled to judgment as a matter
of law. Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986). Material facts are
those that may affect the outcome of the case.
Anderson, 477 U.S. at 248. A dispute about a
material fact is genuine if there is enough evidence for a
reasonable jury to return a verdict for the non-moving party.
Id. at 248-49.
party moving for summary judgment has the initial burden of
informing the court of the basis for the motion, and
identifying portions of the pleadings, depositions, answers
to interrogatories, admissions, or affidavits that
demonstrate the absence of a triable issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
To meet its burden, “the moving party must either
produce evidence negating an essential element of the
nonmoving party's claim or defense or show that the
nonmoving party does not have enough evidence of an essential
element to carry its ultimate burden of persuasion at
trial.” Nissan Fire & Marine Ins. Co. v. Fritz
Cos., 210 F.3d 1099, 1102 (9th Cir. 2000); see
Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001)
(“When the nonmoving party has the burden of proof at
trial, the moving party need only point out ‘that there
is an absence of evidence to support the nonmoving
party's case.'”) (quoting Celotex, 477
U.S. at 325).
moving party meets its initial burden, the burden shifts to
the non-moving party to produce evidence supporting its
claims or defenses. Nissan Fire & Marine, 210
F.3d at 1103. The non-moving party may not rest upon mere
allegations or denials of the adverse party's evidence,
but instead must produce admissible evidence that shows there
is a genuine issue of material fact for trial. See
Devereaux, 263 F.3d at 1076. If the non-moving party
does not produce evidence to show a genuine issue of material
fact, the moving party is entitled to summary judgment.
See Celotex, 477 U.S. at 323.
ruling on a motion for summary judgment, inferences drawn
from the underlying facts are viewed in the light most
favorable to the non-moving party. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
America moves for partial summary judgment on claim six,
charging a failure to pay final wages on time, and claim
eight, charging a failure to furnish accurate wage-and-hour
statements. The court grants the motion in part for
(1) claim six, to the extent that it is predicated on
vacation pay that Bank of America undisputedly paid, and (2)
claim eight claim, to the extent that the one-year statute of
limitations precludes the plaintiff's claim for statutory
penalties. The court otherwise denies the motion.
Claim Six: Failure to Pay Final Wages on Time
claim six, the plaintiff claimed that Bank of America
willfully failed to pay her final wages when it terminated
her, in violation of sections 201-203 of the California Labor
Code. Bank of America moved for summary
judgment on the ground that the claim is predicated on the
plaintiff's claim for unpaid vacation wages (individual
claim five), which she now concedes were paid fully, and
because she has not produced admissible evidence that shows
there is a genuine issue of material fact that Bank of
America acted willfully when it did not pay her for the
meal-and-rest breaks (class claim three). The plaintiff
does not dispute the unpaid-vacation-wages argument but
counters that there are material fact disputes about whether
Bank of America acted intentionally when it did not pay for
her meal-and-rest breaks. The court grants the motion to
the extent that it is predicated on unpaid vacation leave and
otherwise denies the motion.
the California Labor Code, “[i]f an employer discharges
an employee, the wages earned and unpaid at the time of
discharge are due and payable immediately.” Cal. Labor
Code § 201(a). “If an employer willfully fails to
pay, without abatement or deduction, . . . any wages of any
employee who is discharged or who quits, ” the
employee's wages continue as a penalty until paid, for up
to 30 days. Cal. Labor Code § 203(a); Mamika v.
Barka, 68 Cal.App.4th 487, 492 (1998); see McLean v.
State of Calif., 1 Cal. 5th 615, 619 (2016) (applying
rule to employees who retire).
means that the employer intentionally failed or refused to
pay a wage obligation. Baker v. American Horticultural
Supply, Inc., 186 Cal.App.4th 1059, 1076 (2010); see
Woods v. Vector Mktg. Corp., No. C-14-0264 EMC, 2015 WL
2453202, at *4 (N.D. Cal. May 22, 2015) (citing Amaral v.
Cintas Corp. No. 2, 163 Cal.App.4th 1157, 1201 (2008)
(“The settled meaning of willful, as used in section
203, is that an employer has intentionally failed or refused
to perform an act which was required to be done.”)).
The term “willful” does not require a plaintiff
to show that an employer knew its obligation and then
intentionally refused to act. Baker, 186 Cal.App.4th
at 1075 (“The knowledge requirement would be difficult
to prove and would encourage [employers] to remain ignorant
of their obligations” if “willful” were
defined to require a knowing and intentional refusal to act).
That said, a good-faith defense that wages are due
“will preclude imposition of waiting time penalties
under Section 203.” 8 Cal. Code. Regs. tit. 8 §
America contends that it has a good-faith belief that
meal-and-rest-period payments under Cal. Labor Code §
226.7 are not “wages earned” under Cal. Labor
Code § 203. In support of its argument, it cites
Ling v. P.F. Chang's China Bistro, Inc., 245
Cal.App.4th 1242, 1261 (2016). In denying Bank of
America's earlier motion to dismiss, the court previously
rejected this argument at the pleadings stage. Suarez v.
Bank of America Corp., No. 18-cv-01202-MEH, 2018 WL
3659302, at *9-10 (N.D. Cal. Aug. 2, 2018).
earlier order reviews two California Supreme Court cases that
address whether section 226.7 payments are wages.
Id. at *10 (citing Murphy v. Kenneth Cole
Products, Inc., 40 Cal.4th 1094, 1102, 1110-11, 113
(2007) (section 226.7 meal-and-rest-break premiums are wages
for statute-of-limitations purposes); Kirby v. Immoos
Fire Protection, 53 Cal.4th 1244, 1248, 1257 (2012)).
The order acknowledges Ling, but follows the weight
of authority - including many cases in this district - where
courts have found that premiums for unpaid rest breaks are
“wages” entitling plaintiffs to waiting-time
penalties under section 203 of the Labor Code. Id.
early summary-judgment motion, before the close of fact
discovery, with no illumination about the predicate
violations, and with less than a page of briefing and no new
cited authority, the court does not revisit its earlier
Claim Eight: Inaccurate Wage Statements
claim eight, the plaintiff claimed that Bank of America did
not provide an accurate itemized statement for each pay
period that reflected actual hours worked, in violation of
Cal. Labor Code § 226. Bank of America moved for
summary judgment on four grounds: (1) the plaintiff's
claim for statutory penalties is barred by a one-year statute
of limitations; (2) she did not suffer injury, which is a
necessary element for any claim for damages under section
226(e); (3) the reporting requirement in section 226(a) of
the Labor Code applies only to wages that were actually paid
(not wages that a suing party thinks should be paid), and the
wage statements here are accurate; and (4) Bank of
America's violations were not “knowing and
intentional, ” which is a necessary element under
section 226(e). The court grants the motion only on the
ground that the plaintiff's claim for statutory penalties
is barred by the one-year statute of limitations and
otherwise denies the motion.
California Labor Code requires employers to provide to
employees - semimonthly or at the time of each payment of
wages - “an accurate itemized statement in
writing” showing nine specific items, including
“the inclusive dates of the pay period for which the
employee is paid, ” gross wages earned, the applicable
hourly rate and total hours worked for non-exempt employees,
all deductions, and net wages earned. Cal. Labor Code §
226(a). The plaintiff alleges that Bank of America's pay
stubs fail to list these items.
employer's violation is knowing and intentional, an
employee is entitled to damages:
An employee suffering injury as a result of a knowing and
intentional failure by an employer to comply with [section
226](a) is entitled to recover the greater of all actual
damages or fifty dollars ($50) for the initial pay period in
which a violation occurs and one hundred dollars ($100) per
employee for each violation in a subsequent pay period, not
to exceed an aggregate penalty of four thousand dollars ($4,
000), and is entitled to an award of costs and reasonable
Cal. Labor Code § 226(e)(1).
in addition to proving the element that an employer failed to
provide an accurate itemized statement, a plaintiff must
prove that (1) the employer's failure to provide the
statement was knowing and intentional and (2) the employee
suffered injury. Iljas v. Ripley Entm't Inc.,
___F.Supp.3d___, No.18-cv-00136-JST, 2019 WL 3817847, at *5
(N.D. Cal. Aug. 14, 2019) (citing Willner v. Manpower
Inc., 35 F.Supp.3d 1116, 1128 (N.D. Cal. 2014)).
Statute of Limitations
action to recover a statutory penalty or forfeiture must be
brought one year from the date of accrual. Cal. Civ. Code P.
§ 340(a-b). Section 226(e) authorizes recovery of either
actual damages or a penalty. Cal. Labor Code §
226(e)(1). “The penalty provision of section 226 is
subject to a one-year statute of limitations.”
Maravilla v. Rosas Bros. Constr., Inc.,
___F.Supp.3d___, No.16- cv-06117-JST, 2019 WL 3820051, at *7
(N.D. Cal. Aug. 14, 2019); accord Ridgeway v. Wal-Mart
Stores, Inc., No. C 08-05221 SI, 2014 WL 2600326, at *8
(N.D. Cal. June 10, 2014).
America first contends that the plaintiff's claim is
barred by the one-year statute of limitations for
penalties. To the extent that the plaintiff seeks
statutory damages, the one-year statute of limitations bars
January 10, 2018, the plaintiff filed her administrative
charge with the California Department of Fair Employment
complaint, and on January 25, 2018, she filed her complaint
initiating this lawsuit. Her claim accrued on January 10,
2018, and the one-year look-back period under the statute of
limitations thus began on January 11, 2017. The plaintiff
did not address the plaintiff's statute-of-limitations
argument in her opposition and - in response to the
court's questions at the hearing - said that she
submitted the issue on the papers (essentially conceding it).
Thus, the court grants the motion on the ground that the
statute of limitations bars any claim for liquidated damages
predicated on wage statements received before the one-year
statutory period. Cal. Code Civ. P. 340; Ridgeway,
2014 WL 2600326, at *8 (granting summary judgment in favor of
Wal-Mart on the plaintiff's liquidated damages claim
because the plaintiff's employment ended more than one
year before the filing of her complaint and the plaintiff did
not respond to Wal-Mart's argument and “appear[ed]
to concede the issue”).
holding appears to dispose of the plaintiff's entire
claim for statutory damages. Her last day at work was October
21, 2016, and her termination date was September 27,
2017. Her statutory-damages claim is
predicated on a failure to include meal-and-rest breaks,
which necessarily is not an issue for an employee on medical
the Labor Code,
(2)(A) An employee is deemed to suffer injury for purposes of
this subdivision if the employer fails to provide a wage
(B) An employee is deemed to suffer injury for purposes of
this statute if the employer fails to provide accurate and
complete information [for the nine items specified in section
226(a)], and the employee cannot promptly and easily
determine from the wage statement alone one or more of the
following: [specified items that include the amount of gross
wages or net wages paid, specified deductions, and all
applicable hourly rates and the corresponding hours worked].
(C) For purposes of this paragraph, “promptly and
easily determine” means a reasonable person would be
able to ascertain the information without reference ...