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This case was last updated from Los Angeles County Superior Courts on 01/19/2020 at 02:13:46 (UTC).

ANA MORENO ET AL VS WIESS FAMILY PROPERTIES LLC ET AL

Case Summary

On 01/08/2018 ANA MORENO filed a Labor - Other Labor lawsuit against WIESS FAMILY PROPERTIES LLC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****9338

  • Filing Date:

    01/08/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Labor - Other Labor

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

 

Party Details

Plaintiffs and Petitioners

HENRIQUEZ MILVIA

MORENO ANA

Defendants and Respondents

MARROQUIN IMA

WEISS FAMILY PROPERTIES< LLC

WEISS INVESTMENT PROPERTIES LP

DOES 1 TO 25

WEISS FAMILY PROPERTIES LLC

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

LEE HENRY M. ESQ.

LEE HENRY MIN ESQ.

Defendant and Respondent Attorneys

LANDEGGER ALFRED J.

VERANO ROXANA ELIZABETH

KOURASIS KRISTINA

 

Court Documents

Motion in Limine - MOTION IN LIMINE DEFENDANT WEISS FAMILY PROPERTIES, LLC AND IMA MARROQUINS NOTICE OF MOTION AND MOTION IN LIMINE NO. 1 TO BIFURCATE THE ISSUE OF PUNITIVE DAMAGES AND RESTRICT PLAIN

8/5/2019: Motion in Limine - MOTION IN LIMINE DEFENDANT WEISS FAMILY PROPERTIES, LLC AND IMA MARROQUINS NOTICE OF MOTION AND MOTION IN LIMINE NO. 1 TO BIFURCATE THE ISSUE OF PUNITIVE DAMAGES AND RESTRICT PLAIN

Motion in Limine - MOTION IN LIMINE NO. 3 DEFENDANT WEISS FAMILY PROPERTIES, LLC AND IMA MARROQUINS NOTICE OF MOTION AND MOTION IN LIMINE NO. 3 TO EXCLUDE PLAINTIFFS FROM INTRODUCING ANY EVIDENCE PER

8/5/2019: Motion in Limine - MOTION IN LIMINE NO. 3 DEFENDANT WEISS FAMILY PROPERTIES, LLC AND IMA MARROQUINS NOTICE OF MOTION AND MOTION IN LIMINE NO. 3 TO EXCLUDE PLAINTIFFS FROM INTRODUCING ANY EVIDENCE PER

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (HEARING ON EX PARTE APPLICATION FOR AN ORDER COMPELLING SECON...) OF 08/19/2019

8/19/2019: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (HEARING ON EX PARTE APPLICATION FOR AN ORDER COMPELLING SECON...) OF 08/19/2019

Minute Order - MINUTE ORDER (INFORMAL DISCOVERY CONFERENCE (IDC))

8/20/2019: Minute Order - MINUTE ORDER (INFORMAL DISCOVERY CONFERENCE (IDC))

Informal Discovery Conference

8/20/2019: Informal Discovery Conference

Motion in Limine - MOTION IN LIMINE NO. 5 TO EXCLUDE WITNESSES WHO FAILED TO APPEAR AT DEPOSITION; MEMORANDUM OF POINTS AND AUTHORITIES AND DECLARATION OF KRISTINA KOURASIS IN SUPPORT THEREOF

8/23/2019: Motion in Limine - MOTION IN LIMINE NO. 5 TO EXCLUDE WITNESSES WHO FAILED TO APPEAR AT DEPOSITION; MEMORANDUM OF POINTS AND AUTHORITIES AND DECLARATION OF KRISTINA KOURASIS IN SUPPORT THEREOF

Motion in Limine - MOTION IN LIMINE NO. 1 TO EXCLUDE ALL EVIDENCE, DOCUMENTS, TESTIMONY FROM DEFENDANTS

8/29/2019: Motion in Limine - MOTION IN LIMINE NO. 1 TO EXCLUDE ALL EVIDENCE, DOCUMENTS, TESTIMONY FROM DEFENDANTS

Trial Brief

9/3/2019: Trial Brief

Opposition - OPPOSITION TO PLAINTIFFS MOTION IN LIMINIE NO. 1 TO EXCLUDE ALL EVIDENCE, DOCUMENTS, TESTIMONY FROM DEFENDANTS

9/5/2019: Opposition - OPPOSITION TO PLAINTIFFS MOTION IN LIMINIE NO. 1 TO EXCLUDE ALL EVIDENCE, DOCUMENTS, TESTIMONY FROM DEFENDANTS

Request for Dismissal

9/6/2019: Request for Dismissal

Notice of Lodging - NOTICE OF LODGING DEFENDANTS WEISS FAMILY PROPERTIES, LLCS AND IMA MARROQUINS NOTICE OF LODGING OF DEFENDANT IMA MARROQUINS DEPOSITION FOR TRIAL

9/12/2019: Notice of Lodging - NOTICE OF LODGING DEFENDANTS WEISS FAMILY PROPERTIES, LLCS AND IMA MARROQUINS NOTICE OF LODGING OF DEFENDANT IMA MARROQUINS DEPOSITION FOR TRIAL

Notice of Case Reassignment and Order for Plaintiff to Give Notice

1/10/2020: Notice of Case Reassignment and Order for Plaintiff to Give Notice

CASE MANAGEMENT STATEMENT -

5/10/2018: CASE MANAGEMENT STATEMENT -

Minute Order -

5/15/2018: Minute Order -

DEFENDANTS' NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF'S ANA MORENO AND MILVIA HENRIQUEZ'S FIRST AMENDED COMPLAINT, ETC

7/27/2018: DEFENDANTS' NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF'S ANA MORENO AND MILVIA HENRIQUEZ'S FIRST AMENDED COMPLAINT, ETC

Minute Order -

9/20/2018: Minute Order -

Answer - Answer to Second Amended Complaint

12/27/2018: Answer - Answer to Second Amended Complaint

Ex Parte Application - EX PARTE APPLICATION EX PARTE APPLICATION FOR AN ORDER COMPELLING PLAINTIFFS DEPOSITIONS, AND CONTINUE THE TRIAL DATE, FINAL STATUS CONFERENCE, AND RELATED DATES; DECLARATION

6/27/2019: Ex Parte Application - EX PARTE APPLICATION EX PARTE APPLICATION FOR AN ORDER COMPELLING PLAINTIFFS DEPOSITIONS, AND CONTINUE THE TRIAL DATE, FINAL STATUS CONFERENCE, AND RELATED DATES; DECLARATION

77 More Documents Available

 

Docket Entries

  • 07/07/2020
  • Hearing07/07/2020 at 09:30 AM in Department 76 at 111 North Hill Street, Los Angeles, CA 90012; Non-Jury Trial

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  • 06/26/2020
  • Hearing06/26/2020 at 09:00 AM in Department 76 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

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  • 01/10/2020
  • DocketNotice of Case Reassignment and Order for Plaintiff to Give Notice; Filed by Clerk

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  • 12/19/2019
  • DocketRequest for Refund / Order; Filed by Ima Marroquin (Defendant); Weiss Family Properties, LLC (Defendant)

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  • 10/07/2019
  • DocketNotice of Ruling; Filed by Ima Marroquin (Defendant); Weiss Family Properties, LLC (Defendant)

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  • 09/30/2019
  • Docketat 08:30 AM in Department 19; Hearing on Motion to Compel (Motion to Compel Second Day of Deposition of Plaintiff Milvia Henriquez) - Not Held - Taken Off Calendar by Party

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  • 09/26/2019
  • Docketat 08:30 AM in Department 19; Hearing on Motion to Compel (Motion to Compel Second Day of Deposition of Plaintiff Ana Moreno) - Not Held - Taken Off Calendar by Party

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  • 09/26/2019
  • Docketat 08:30 AM in Department 19; Hearing on Motion to Compel (Motion to Compel Responses to Plaintiff Milvia Henriquez's Responses to Form Interrogatories - General) - Not Held - Taken Off Calendar by Party

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  • 09/25/2019
  • Docketat 08:30 AM in Department 19; Hearing on Motion to Compel (Motion to Compel Responses to Plaintiff Milvia Henriquez's Responses to Form Interrogatories - Employment) - Not Held - Taken Off Calendar by Party

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  • 09/23/2019
  • Docketat 08:30 AM in Department 19; Hearing on Motion to Compel (Motion to Compel Responses to Plaintiff Ana Moreno's Responses to Special Interrogatories) - Not Held - Taken Off Calendar by Party

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117 More Docket Entries
  • 03/29/2018
  • DocketDEFENDANT WEISS FAMILY PROPERTIES, LLC'S NOTICE OF MOTION AND MOTION TO STRIKE; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF KRISTINA KOURASIS IN SUPPORT THEREOF

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  • 03/07/2018
  • DocketPROOF OF SERVICE SUMMONS & COMPLAINT

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  • 03/07/2018
  • DocketProof-Service/Summons; Filed by Ana Moreno (Plaintiff)

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  • 03/07/2018
  • DocketProof-Service/Summons; Filed by Ana Moreno (Plaintiff)

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  • 03/07/2018
  • DocketPROOF OF SERVICE SUMMONS & COMPLAINT

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  • 01/18/2018
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 01/18/2018
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

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  • 01/08/2018
  • DocketCOMPLAINT: 1. UNLAWFUL BUSINESS PRACTICES (BUS. & PROF. CODE 17200 ET. SEQ.); 2. FAILURE TO PAY OVERTIME WAGES; 3. FAILURE TO FURNISH ACCURATE WAGE AND HOUR STATEMENTS; ETC

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  • 01/08/2018
  • DocketSUMMONS

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  • 01/08/2018
  • DocketComplaint; Filed by Ana Moreno (Plaintiff); Milvia Henriquez (Plaintiff)

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Tentative Rulings

Case Number: BC689338    Hearing Date: September 29, 2020    Dept: 76

Plaintiffs, who worked as resident managers for Defendants’ properties, allege that Defendants violated wage and hour laws.

Defendants Weiss Family Properties, LLC and Ima Marroquin move for summary judgment or, in the alternative, summary adjudication.

TENTATIVE RULING

Defendants Weiss Family Properties, LLC and Ima Marroquin’s motion for summary judgment is DENIED.

Defendants’ motion for summary adjudication is DENIED as to Issues No. l and 2 re: the second and fifth causes of action, Issue No. 3 re: the second cause of action, and Issue No. 4 re: the first, third and fourth causes of action.

The motion for summary adjudication as to Issue No. 5 re: individual Defendant Ima Marroquin’s liability is MOOT.

ANALYSIS

Supplemental Briefs

The Court previously stated that it would consider all of the briefs submitted by both Plaintiffs and Defendants. In the interest of due process, each side was given an opportunity to submit one additional supplemental brief with supplemental evidence. (See Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 14 Cal.App.5th 438, 449-50 [holding that a court has discretion to consider new reply evidence, provided the other party has an opportunity to respond to the new material].) To this end, the parties’ complaints about timeliness or substantive versus non-substantive changes are moot.

The hearing on the motion for summary judgment was CONTINUED to this date, to permit the parties to file supplemental briefs. The Court will address the issues raised by the supplemental briefs, as appropriate, below.

Notice of Lodging Of Certified English Translations

On September 9, 2020, Defendants filed a Notice of Lodging of Certified English Language Translations of Key Agreements. The Court notes that merely “lodging” the Certified English Language Translations of Key Agreements with the Court, without publicly filing them, is impermissible. The public is entitled to see the documents which the Court reviewed in reaching this decision. “Exhibits written in a foreign language must be accompanied by an English translation, certified under oath by a qualified interpreter.” (Cal. Rules of Court, Rule 3.1110(g) [bold emphasis and underlining added].) In that regard, Defendants are ordered to publicly file the Certified English Language Translations of Key Agreements, identified as items Nos. 1 – 10 in the Notice of Lodging of Certified English Language Translations of Key Agreements, within 2 court days. The failure to do so will result in the Court setting an OSC re: sanctions for failure to comply with the Court’s order.

Plaintiffs’ Evidentiary Objections

Pursuant to CCP § 437c(q), the Court only rules upon those objections to evidence which the Court deems to be material to the disposition of this motion.

Defendants’ Exhibits

Exhs. A – D: OVERRULED. Sufficient foundation; hearsay exception—admission of party opponents (Evid. Code § 1220.) Certified translation will be remedied; the failure to satisfy a precondition to admissibility, which could be satisfied at trial, may be remedied at trial and the evidence may be considered. (Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 947-49.)

Exhs. E – O: OVERRULED. Sufficient foundation; hearsay does not apply to entirety of all documents. Certified translation will be remedied; the failure to satisfy a precondition to admissibility, which could be satisfied at trial, may be remedied at trial and the evidence may be considered. (Sweetwater, supra, 6 Cal.5th at 947-49.)

Exhs. P – R: OVERRULED. Sufficient foundation; not hearsay.

Declaration of Dunia Song

Nos. 2 and 4: OVERRULED. Relevant; sufficient foundation; goes to weight.

Declaration of Lidia Avalos

No. 6: OVERRULED. Relevant; sufficient foundation; goes to weight.

Declaration of Juan Arriazola

No. 6: OVERRULED. Relevant; sufficient foundation; goes to weight.

Declaration of Kristin Kourasis

No. 2: SUSTAINED. Physician’s report is hearsay[1]; insufficient foundation for business records exception laid (even though Plaintiffs’ statements are admission by a party opponent, where multiple levels of hearsay are involved, each level must qualify under a hearsay exception[2]).

No. 4: OVERRULED. Relevant; sufficient foundation; hearsay exception—admission of party opponents. (Evid. Code § 1220.)

Declaration of Donna Lam

No. 2: OVERRULED. Relevant; sufficient foundation; goes to weight; not hearsay; not impermissible legal conclusion.

No. 3: OVERRULED. Relevant; sufficient foundation; goes to weight; not hearsay; not impermissible legal conclusion.

No. 7: OVERRULED. Relevant; sufficient foundation; goes to weight; not hearsay—shows notice to hearers[3]; not impermissible legal conclusion.

No. 8: OVERRULED. Relevant; goes to weight; not hearsay—shows notice to hearers; not impermissible legal conclusion.

No. 9: OVERRULED. Relevant; goes to weight; not hearsay—shows notice to hearers; not impermissible legal conclusion.

No. 10: OVERRULED. Relevant; goes to weight; not hearsay—shows notice to hearers; not impermissible legal conclusion.

No. 11: OVERRULED. Relevant; sufficient foundation; goes to weight; not hearsay—shows notice to hearers; not impermissible legal conclusion.

No. 12: OVERRULED. Relevant; sufficient foundation; goes to weight; not hearsay—shows notice to hearers; not impermissible legal conclusion.

No. 14: OVERRULED. Relevant; sufficient foundation; goes to weight; not hearsay—shows notice to hearers; not impermissible legal conclusion.

No. 16: OVERRULED. Relevant; sufficient foundation; goes to weight; not hearsay; not impermissible legal conclusion.

No. 18: OVERRULED. Relevant; sufficient foundation; goes to weight; not hearsay; not impermissible legal conclusion.

No. 20: OVERRULED. Relevant; sufficient foundation; goes to weight; not hearsay—shows notice to hearers; not impermissible legal conclusion.

Defendants’ Evidentiary Objections Filed On September 24, 2020

There is no basis for objecting to facts presented in a separate statement, devoid of any reference to the objectionable evidence.

Motion For Summary Judgment

For the reasons discussed below, Defendants have not demonstrated that they are entitled to judgment as to all causes of action. Accordingly, the motion for summary judgment is DENIED.

The Court proceeds to address the alternative motion for summary adjudication, below.

Motion For Summary Adjudication

1. Issue No. 1: “There is no triable issue of fact as to Plaintiffs’ Second and Fifth Causes of Action because, according to Plaintiffs’ certified timesheets, they did not work any overtime hours; they took their legally mandated meal breaks or did not work more than five (5) consecutive hours in any workday; Defendants permitted and authorized rest breaks; and Plaintiffs cannot submit any admissible evidence to prove otherwise.”

The second cause of action is for failure to pay overtime wages to Plaintiffs.

The parties stipulated that IWC Wage Order No. 5-2001 applied to Plaintiffs’ employment. (9/13/20 Joint Trial Stipulations, ¶ 8.) Wage Order 5 provides that an employer shall pay an employee overtime after more than eight (8) hours of work in any workday or more than 40 hours in any workweek.

Based on the January 8, 2018 filing of their complaint, the relevant period of employment for Plaintiff Ana Moreno is January 8, 2014 through May 25, 2015 and for Plaintiff Milvia Henriquez, January 8, 2014 through May 10, 2016. (UF Nos. 2, 3; Joint Stipulation, Factual, p.2 (Exh. Q.))

Defendant has submitted evidence that Plaintiffs did not report working any overtime hours on their certified timesheets, nor that they were inaccurately paid for the hours shown on their timesheets. (Exh. C (Moreno’s Time Sheets and Pay Stubs); Exh. D (Henriquez’s Time Sheets and Pay Stubs). The timesheets required Plaintiffs to indicate the beginning time and end time of their duties, along with a detailed description of the duty being performed; Plaintiffs were informed that the purpose of the timesheets (as many as needed) was to submit accurate total number of hours worked for proper compensation. (UF Nos. 38, 39; Lam Decl., ¶¶ 12, 13 and Exh. D thereto.) Plaintiffs were informed and reminded that when signing their timesheets, they were certifying the accuracy of the contents of the timesheets including the number of total hours worked in a day and in the payroll period. (UF No. 40; Lam Decl., ¶ 15.)

Plaintiffs were aware of Defendant’s policies and procedures set forth in the Resident Manager Agreement and the Employee Handbook, which clearly required Resident Managers to prepare and submit timesheets accurately reflecting the number of hours worked. Plaintiffs prepared and signed their own timesheets and attested to their accuracy, never objecting or questioning their time or the process. (UF Nos. 6, 10, 11, 12, 20, 22, 23, 24, 26; Moreno Depo., at 61:1-21, 62:8-15, 98:1-22, 115:5-19; Henriquez Depo, at 33:24-34:11, 119:5-25, 149:9-150:3, 151:1-23; Exhs. N, O (Employment Agreements); Lam Decl., ¶¶ 3, 4, 20 and Exhs. B, G thereto; UF No. 43; Lam Decl., ¶ 17.) Defendant timely paid Plaintiffs for all the “hours worked” which they reported on their certified time sheets. (UF No. 48; Lam Decl., ¶ 19.)

Defendant has submitted evidence that the Resident Manager Agreement clearly explained to Plaintiffs that, due to the nature of their job and the fact that they live on the premises, they are not “working” all the time that they were physically on the premises. The Resident Manager Agreement also explained that “hours worked” meant the time managers were actually performing their duties and did not include the time in between their performance of their duties or when they are engaging in personal pursuits, in accordance with the provisions of Section 2(K) of Wage Order 5. (Residential Agreement, ¶¶ 2, 3, 5) This was also repeatedly explained in detail to all managers, including Plaintiffs, at their annual Resident Managers meetings. (UF Nos. 31, 31; Lam Decl., ¶ 8.) Thus, Plaintiffs understood that they were to include in their timesheets only the amount of time they were actually performing duties, and not the other time when they were either physically present in their apartment or on the premises but not performing work. However, if Plaintiffs worked more hours than those allocated to those building, whether or not previously approved by management, they would be compensated for the additional hours, and would be compensated for the full number of allocated hours even if they worked less than the allocated hours. (UF Nos. 33, 34; Lam Decl., ¶¶ 9, 10.) The reason for this practice was that the number of “total hours” assigned to their building was higher than the hours necessary to maintain the buildings in order to allow for emergencies or other unexpected situations, and to encourage “accurate” versus “inflated” reporting of time. (UF No. 36; Lam Decl., ¶ 10.)

Defendants argue that Plaintiffs do not have any credible evidence to corroborate their claims that they worked 15 hours every day, seventh days per week. At their depositions, both Plaintiffs identified their husbands and/or children as the only witnesses who could testified as to the hours they worked. These witnesses failed to appear at their subpoenaed depositions. (UF Nos. 54, 55; Kourasis Decl., ¶ 18; Exhs. I, J, K, L and M.) Plaintiffs have not produced any documentation during discovery to contradict the accuracy of the certified timesheets.

Defendants argue that the Resident Managers who replaced Plaintiffs, either temporarily or permanently, and who were performing the exact same duties as Plaintiffs at the same buildings, worked less hours than those worked by Plaintiffs at their buildings. (UF Nos. 51, 52, 53 ; Decl. of Dunia Song, ¶¶ 2, 4; Decl. of Lidia Avalos, ¶ 7 and Exh. 1 thereto; Declaration of Juan Arriazola, ¶ 7 and Exh. 1 thereto.)

The fifth cause of action is for failure to provide meal and rest periods—Labor Code §§ 226.7 and 512.

Labor Code § 512 provides in relevant part that “[a]n employer may not employee an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than 30 minutes. . . .” Wage Order 5 states in relevant part: “Meal Periods – (A) No employer shall employ any person for a work period of more than five (5) hours without a meal period of no less than 30 minutes. . . .” Wage Order 5 further requires California employers “to authorize and permit” a 10-minute rest period for every four hours of work. Labor Code § 226.7(b) states: “An employer shall not require an employee to work during a meal or rest or recovery period mandated pursuant to an applicable statute, or applicable regulation, standard, or order of the Industrial Welfare Commission, the Occupational Safety and Health Standards Board, or the Division of Occupational Safety and Health.”

Defendant’s evidence is that Plaintiffs’ certified timesheets reflect that they were provided compliant meal periods. Plaintiff Hernandez’s timesheets indicate that she never worked more than five (5) consecutive hours in a day. Plaintiff Moreno’s timesheets indicate that she never worked more than five (5) consecutive hours in a day without taking a meal break before the end of the fifth hour. (Exh. C (Moreno’s Time Sheets and Pay Stubs); Exh. D (Henriquez’s Time Sheets and Pay Stubs).

Defendant has submitted evidence that it has written policies in the Employee Handbook and written agreements, specifically the 2014 amendment, regarding meal and rest periods that comply with labor laws. (UF Nos. 49, 50; Lam Decl., ¶ 21 and Exh. H-6 thereto.)

In Brinker, the California Supreme Court clarified that an employer is required to make uninterrupted meal periods and rest breaks available to its employees, but is not obligated to ensure that they are taken. (Brinker, supra, 53 Cal.4th at pp. 1034, 1040–1041.) The court summarized its holding as follows: “An employer's duty with respect to meal breaks … is an obligation to provide a meal period to its employees. The employer satisfies this obligation if it relieves its employees of all duty, relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted 30-minute break, and does not impede or discourage them from doing so.

(Koval v. Pacific Bell Telephone Co. (2014) 232 Cal.App.4th 1050, 1058.)

The foregoing evidence is sufficient to demonstrate that Defendant Weiss Family Properties is entitled to judgment as to the second and fifth causes of action. The burden shifts to Plaintiffs to demonstrate that a triable issue of material fact exists.

Plaintiffs argue that Defendants improperly paid Plaintiffs a flat salary regardless of how many hours they worked, and forced Plaintiffs to sign altered and false time sheets as a condition of obtaining their wages in violation of Labor Code §§ 206.5 and 1194. (See, e.g., Opp. Fact No. 8; Lam Depo., 37:4-7, 47:25-50:8, 54:5-20, 70:19-22, 71:18-21, 95:16-22; Opp. Exhs. 1, 2, 3; Moreno Depo., 128:23-129:25, 141:8-12; Henriquez Depo., 67:15-19, 81:16-83:1-17, 86:1-11, 87:12-89:3, 145:8-23.) Plaintiffs could be fired if they did not sign and turn in their time sheets, which were part of Plaintiffs’ job duties. (See, e.g., Opp. Fact No. 8; Lam Depo., 33:23-34:1, 37:10-12, 71:18-21.) Defendant has no procedure to determine whether the time sheets are accurate or not. (See, e.g., Opp. Fact No. 8; Lam Depo., 70:23-25.)

Plaintiffs present evidence that Plaintiffs’ job duties included opening, closing, monitoring, and cleaning the laundry rooms where the Defendants provided laundry machines for tenants to wash their clothing. Lam testified that the company’s policies for laundry room hours is from 7:00 a.m. to 9:00 p.m. (14 hours), while Moreno testified that the laundry room operating hours were 8:00 a.m. to 8:00 p.m., which constitutes 12 hours. The time sheets did not include all “Hours Worked” such as time spent performing 12-hour laundry room duties and monitoring of repair and maintenance people. Plaintiffs were also authorized to work more than 8 hours a day for emergencies, including maintenance and repair work, with no rule or protocol for Plaintiffs to follow to be authorized to work extra hours on other occasions (See, e.g., Opp. Fact No. 8; Lam Depo., 68:13-16, 98:23-99:10, 108:22-110:1; Moreno Depo., 26:1-27:15, 29:4-12, 31:5-14, 53:14-24, 76:6-15, 87:2-18, 88:23-91:17, 99:13-100:19, 101:3-13;.)

Plaintiffs have submitted evidence that triable issues of fact exist whether Plaintiffs’ performance of duties to clean common areas all day long at all times, monitor repair people and laundry room were counted and paid as “Hours Worked.” (See, e.g., Opp. Fact No. 8; Lam Depo., 38:22-39:23, 108:8-110:1, 117:15-118:12, 119:6-25.)

The foregoing evidence is sufficient to raise a triable issue of material fact as to whether Defendant failed to pay overtime wages. Notably, a triable issue of material fact only exists as to whether non-counted work exceeded the flat amounts paid and/or caused Plaintiffs to actually work overtime hours. Granted, the fact that Plaintiffs have admittedly misrepresented the hours on their timesheets so consistently and egregiously may negatively reflect upon their credibility. However, this is for the jury to take into consideration at trial, in light of Plaintiffs’ testimony that they were forced to change their time sheets to exclude time actually worked.

As to the failure to provide meal and rest periods claim, Plaintiffs argue in their Opposition that they were constantly being interrupted and sometimes prohibited from taking breaks altogether by Defendants (Opp., Page 19:4-7). In support of this argument, Plaintiffs cite the following evidence at Opp. Fact No. 49: Moreno Depo., 149:5-150:15[4]. Moreno testified that Defendant’s policy of requiring that a manager be present when repair or maintenance workers were present prevented Plaintiff from taking a break. This is sufficient to raise a triable issue of material fact as to the meal and rest breaks claim.

Accordingly, the motion for summary adjudication as to Issue No. 1 is DENIED as to the second and fifth causes of action.

2. Issue No. 2: “There is no triable issue of fact as to Plaintiffs’ Second and Fifth Causes of Action because Plaintiffs’ certified timesheets are conclusively presumed to be true and Plaintiffs are not permitted to contradict them as a matter of law.”

Defendant cites no persuasive authority for the proposition that Plaintiffs are barred as a matter of law from contradicting their certified timesheets. The basis for Defendant’s argument is that timesheets are “written instruments” for purposes of Evidence Code § 622 which are conclusively presumed to be true and Plaintiffs are precluded from contradicting them.

Evidence Code § 622 provides: “The facts recited in a written instrument are conclusively presumed to be true as between the parties thereto, or their successors in interest; but this rule does not apply to the recital of a consideration.”

Neither Hoag v. Howard (1880) 55 Cal. 564, 565, nor Plaza Freeway Ltd. Partnership v. First Mountain Bank (2000) 81 Cal.App.4th 616, 622-629, cited by Defendant, hold that a timesheet constitutes a “written instrument” for purposes of Evidence Code § 622. Another case cited by Defendant, People v. Tate (1997) 55 Cal.App.4th 663, 667, held that work referral forms stating the number of hours a probationary worked on a service project are "instruments" under Pen. Code § 115. However, Tate did not mention Evid. Code § 622, and thus, does not stand for the proposition that timesheets are “written instruments” under § 622. As such, those cases do not stand for such a proposition.

For purposes of Evidence Code § 622, the term “written instrument has been held “ to indicate some written paper or instrument signed and delivered by one person to another, transferring the title to or creating a lien on property, or giving a right to a debt or duty . . . [but] the written paper or instrument need not represent an agreement.” (Plaza Freeway v. First Mt. Bank 622.) A timesheet does not transfer title to or create a lien on property. While an argument could be made that a timesheet gives a right to a debt or duty regarding payment of wages, the obligation to pay an employee overtime wages (second cause of action), to furnish accurate wage and hour statements (third cause of action), waiting time penalties (fourth cause of action), to provide meal and rest periods (fifth cause of action) are created by statute and arise out of the contract of employment. (See, e.g., Aubry v. Goldhor  (2008) 168 Cal.App.4th 1243, 1252-56.) Moreover, wages are not ordinary debts (Kerr's Catering Service v. Department of Industrial Relations 326), so it is doubtful an appellate court would find that timesheets are written instruments creating such a debt.

Moreover, were Defendant’s proposition that Evidence Code § 622 applied to timesheets, then an employer would be barred from ever proving that an employee falsified timesheets, because the § 622 presumption applies “as between the parties thereto.” Surely, Defendant does not advocate for such an absurd result.

Defendant also argues that Evidence Code § 623 bars Plaintiffs from contradicting their statements in the certified timesheets, leading Defendant to believe it was properly compensating Plaintiff for their hours worked. Evidence Code § 623, titled “Estoppel by own statement or conduct,” provides:

Whenever a party has, by his own statement or conduct, intentionally and deliberately led another to believe a particular thing true and to act upon such belief, he is not, in any litigation arising out of such statement or conduct, permitted to contradict it.

(Bold emphasis added.)

However, whether Defendant believed that the hours reported on the timesheets were accurate such that Defendant believed it was complying with wage and hour laws by properly compensating Plaintiffs, are triable issues of material fact as to Evid. Code § 623.

“‘“[T]he existence of an estoppel is generally a question of fact for the trier of fact, and ordinarily the [fact-finder's] determination is binding on appeal unless the contrary conclusion is the only one to be reasonably drawn from the facts.”’” (Ortega v. Pajaro Valley Unified School Dist. (1998) 64 Cal.App.4th 1023, 1043 [75 Cal. Rptr. 2d 777] (Ortega).)

(J.P. v. Carlsbad Unified School Dist. (2014) 232 Cal.App.4th 323, 333.)

Four elements must ordinarily be proved to establish an equitable estoppel: (1) The party to be estopped must know the facts; (2) he must intend that his conduct shall be acted upon, or must so act that the party asserting the estoppel had a right to believe that it was so intended; (3) the party asserting the estoppel must be ignorant of the true state of facts; and (4) he must rely upon the conduct to his injury. [Citations omitted].)

(Gaunt v. Prudential Ins. Co. (1967) 255 Cal.App.2d 18, 23 [bold emphasis added].)

Accordingly, the Court does not find Issue No. 2, as framed, to be persuasive. The motion for summary adjudication as to Issue No. 2 re: the second and fifth causes of action is DENIED.

3. Issue No. 3: “There is no triable issue of fact as to Plaintiffs’ Second Cause of Action because Plaintiffs voluntarily entered into a Resident Manager agreement containing a lawful lodging credit provision allowing defendant WFP to take a lodging credit against its minimum wage obligation to Plaintiffs.”

Even if Defendant were successful as to Issue No. 3, as framed, this would not entitle Defendant to judgment as to the second cause of action, which is for failure to pay overtime wages, not minimum wages. (2AC, ¶ 20 – 24.)

The motion for summary adjudication as to Issue No. 3 re: the second cause of action is DENIED.

4. Issue No. 4: “There is no triable issue of fact as to Causes of Action One, Three, and Four because these Causes of Action are derivative of the substantive violations pled in the Second and Fifth Causes of Action and, consequently, all three fail as a matter of law.”

The first cause of action is for unlawful business practices in violation of Bus. & Prof. Code § 17200. The third cause of action is for failure to furnish accurate wage and hour statements. The fourth cause of action is for waiting time penalties.

Defendants are not entitled to judgment as to Issue No. 4, as framed, because triable issues of material fact exist as to the second and fifth causes of action. (See Issue No. 1, above.) Because, as Defendants claim, the first, third and fourth causes of action are derivative of the substantive violations pled in the second and fifth causes of action, triable issues likewise exist as to the first, third and fourth causes of action.

Accordingly, the motion for summary adjudication as to Issue No. 4 re: the first, third and fourth causes of action is DENIED.

5. Issue No. 5: “There is no triable issue of fact concerning the status of individual defendant Ima Marroquin as a non-managing agent of defendant WFP and therefore she should be dismissed as a matter of law.”

The only cause of action asserted against Defendant Ima Marroquin in the 2AC was the seventh cause of action for intentional infliction of emotional distress. That cause of action was dismissed by Plaintiff Moreno on September 6, 2019. As such, none of the remaining causes of action in the 2AC are asserted against Defendant Marroquin. She has already been dismissed as a defendant from this lawsuit.

Plaintiffs did not amend the 2AC to asserted the remaining first through fifth causes of action against Marroquin, and they cannot do so now by way of the Opposition. “The complaint serves to delimit the scope of the issues before the court on a motion for summary judgment [citation], and a party cannot successfully resist summary judgment on a theory not pleaded.” (Citation omitted.)” (Bosetti v. United States Life Ins. Co. in City of New York (2009) 175 Cal.App.4th 1208, 1225 [bold emphasis added].)

The motion for summary adjudication as to Issue No. 5 re: individual Defendant Ima Marroquin’s liability is MOOT.


[1] (In re Cruse (2003) 110 Cal.App.4th 1495, 1500.)

[2] (People v. Riccardi (2012) 54 Cal.4th 758, 831, overruled on other grounds in People v. Rangel (2016) 62 Cal.4th 1192, 1216.)

[3] (People v. Livingston (2012) 53 Cal.4th 1145, 116.)

[4] Although Plaintiffs cite the Henriquez Depo. at 107:21-24, 112:24-113:24, 129:5-14, 165:16-166:5, 166:11-25; 169:5-170:1-7, Plaintiffs did not submit those excerpts of Henriquez’s Deposition testimony.

Case Number: BC689338    Hearing Date: August 21, 2020    Dept: 76

Plaintiffs, who worked as resident managers for Defendants’ properties, allege that Defendants violated wage and hour laws.

Defendants Weiss Family Properties, LLC and Ima Marroquin move for summary judgment or, in the alternative, summary adjudication.

TENTATIVE RULING

The hearing on Defendants Weiss Family Properties, LLC and Ima Marroquin motion for summary judgment or, in the alternative, summary adjudication is CONTINUED to September 29, 2020 at 11:00 a.m. Defendants’ supplemental brief, not to exceed 5 pages, and supporting evidence is due September 8, 2020. Plaintiffs’ supplemental brief, not to exceed 5 pages, and supporting evidence is due September 22, 2020. Defendants may thereafter file evidentiary objections to Plaintiffs’ supplemental evidence by September 24, 2020.

ANALYSIS

On the other hand, on August 19, 2020, Plaintiffs filed “Objections To Defendant’s Modified Motion For Summary Judgment/Adjudication,” which are objections to the two Notices of Errata [Notice of Errata Regarding Pages 4, 9 and 10 of the Memorandum of Points and Authorities; Notice of Errata Regarding Pages 2 through 14 of Separate Statement] containing changes to the Points and Authorities and supporting separate statement. These Notices of Errata were filed by Defendants on July 31, 2020—only 21 days prior to the present August 21, 2020 hearing date.

In the Court’s discretion, the Court will consider all of the foregoing briefs submitted by both Plaintiffs and Defendants. In the interest of due process, each side will have an opportunity to submit one additional supplemental brief with supplemental evidence. (See Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 14 Cal.App.5th 438, 449-50 [holding that a court has discretion to consider new reply evidence, provided the other party has an opportunity to respond to the new material].)

Coldwell raised new issues and evidence pertaining to the empty swimming pool theory in its reply papers. Plaintiffs contend the trial court abused its discretion by considering the evidence in ruling on the summary judgment motion. We disagree.

It is well established that the trial court's consideration of additional reply “evidence is not an abuse of discretion so long as the party opposing the motion for summary judgment has notice and an opportunity to respond to the new material.” (Plenger v. Alza Corp. (1992) 11 Cal.App.4th 349, 362, fn. 8 [13 Cal. Rptr. 2d 811], citing Weiss v. Chevron, U.S.A., Inc. (1988) 204 Cal.App.3d 1094, 1098 [251 Cal. Rptr. 727].) The record confirms that plaintiffs had notice of the additional material when they received Coldwell's reply papers and ample opportunity to ask the trial court for permission to submit responsive evidence or to file a sur-reply. By failing to take such action, or to even object to the court's consideration of the evidence, plaintiffs forfeited any claim of a due process violation. (See Robbins v. Regents of University of California (2005) 127 Cal.App.4th 653, 659–660 [25 Cal. Rptr. 3d 851] [party opposing summary judgment forfeited due process claim by failing to move for a continuance for the purpose of conducting further discovery]; Plenger, supra, 11 Cal.App.4th at p. 362, fn. 8 [due process claim forfeited where “plaintiffs did not object to the new evidence, did not request a continuance, and did not even suggest that additional evidence could be presented on the issue”]; see also Gafcon, Inc. v. Ponsor & Associates (2002) 98 Cal.App.4th 1388, 1426 [120 Cal. Rptr. 2d 392] [“Absent any objection to the inclusion of new evidence in [moving party's] reply brief, the court was entitled to consider the evidence as within the record before it”].)

Furthermore, the trial court acted within its discretion by allowing Coldwell to provide evidence in response to a new theory of liability raised by plaintiffs in their opposition. As discussed above, although plaintiff's complaint and discovery responses briefly referenced the empty pool, the only [*450]  theory of liability alleged in the complaint or disclosed during discovery was the purported defective condition of the diving board, not the hazard from the empty pool. Coldwell was justified, therefore, in replying to the newly raised issue regarding the empty pool.

(Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 14 Cal.App.5th 438, 449-50.)

The hearing on the motion for summary judgment is CONTINUED to September 29, 2020 at 11:00 a.m. Defendants’ supplemental brief, not to exceed 5 pages, and supporting evidence is due September 8, 2020. Plaintiffs’ supplemental brief, not to exceed 5 pages, and supporting evidence is due September 22, 2020. No further briefs or evidence will be permitted thereafter. Defendants may thereafter file evidentiary objections to Plaintiffs’ supplemental evidence by September 24, 2020.

[1] 14 days per Code Civ. Proc., § 437c(b)(2).

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