On 12/28/2017 LIGIA BRAN filed a Labor - Other Labor lawsuit against WELLMAN PROPERTY MANAGEMENT INC. 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.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
DOES 1 TO 100
WELLMAN PROPERTY MANAGEMENT INC
LAW OFFICE OF CRISTAL L CABRERA
CABRERA CRISTAL LISA
DARYANANI JON G. ESQ.
SULLIVAN KATELYN CHRISTINE
3/5/2018: DEFENDANTS ROBERT SEVY AND JACQUELINE SEVY?S ANSWER TO PLAINTIFF'S COMPLAINT
3/14/2018: NOTICE OF CASE REASSIGNMENT AND OF ORDER FOR PLAINTIFF TO GIVE NOTICE
4/24/2018: NOTICE OF CASE MANAGEMENT CONFERENCE
5/8/2018: NOTICE OF CASE MANAGEMENT CONFERENCE
5/8/2018: NOTICE OF CASE REASSIGNMENT
6/6/2018: NOTICE OF CASE MANAGEMENT CONFERENCE
6/19/2018: Minute Order
6/19/2018: CIVIL DEPOSIT
6/19/2018: Minute Order
8/17/2018: NOTICE OF CHANGE OF ADDRESS AND CONTACT INFORMATION
8/17/2018: NOTICE OF HEARING, FINAL STATUS CONFERENCE, AND TRIAL
1/16/2019: Minute Order
1/22/2019: Notice of Case Reassignment and Order for Plaintiff to Give Notice
12/28/2017: COMPLAINT FOR: 1. FAILURE TO PAY MINIMUM WAGES 2. FAILURE TO PAY OVERTIME WAGES; ETC
Notice ( of Case Reassignment); Filed by Ligia Bran (Plaintiff)Read MoreRead Less
Notice of Case Reassignment and Order for Plaintiff to Give Notice; Filed by ClerkRead MoreRead Less
at 08:30 AM in Department 37; Post-Mediation Status Conference - HeldRead MoreRead Less
Minute Order ((Post-Mediation Status Conference)); Filed by ClerkRead MoreRead Less
Case Management Statement; Filed by Wellman Property Management, Inc (Defendant)Read MoreRead Less
Notice; Filed by Ligia Bran (Plaintiff)Read MoreRead Less
Notice; Filed by Ligia Bran (Plaintiff)Read MoreRead Less
NOTICE OF CHANGE OF ADDRESS AND CONTACT INFORMATIONRead MoreRead Less
Notice of Change of Address or Other Contact Information; Filed by Ligia Bran (Plaintiff)Read MoreRead Less
NOTICE OF DEPOSIT OF JURY FEESRead MoreRead Less
Notice of Case Reassignment and Order for Plaintiff to Give Notice; Filed by ClerkRead MoreRead Less
NOTICE OF CASE REASSIGNMENT AND OF ORDER FOR PLAINTIFF TO GIVE NOTICERead MoreRead Less
Proof-Service/SummonsRead MoreRead Less
DEFENDANTS ROBERT SEVY AND JACQUELINE SEVY S ANSWER TO PLAINTIFF'S COMPLAINTRead MoreRead Less
Answer; Filed by Robert Sevy (Defendant); Jacqueline Sevy (Defendant)Read MoreRead Less
DEFENDANT WELLMAN PROPERTY MANAGEMENT INC'S ANSWER TO PLAINTIFF'S COMPLAINTRead MoreRead Less
Answer; Filed by Wellman Property Management, Inc (Defendant)Read MoreRead Less
COMPLAINT FOR: 1. FAILURE TO PAY MINIMUM WAGES 2. FAILURE TO PAY OVERTIME WAGES; ETCRead MoreRead Less
SUMMONSRead MoreRead Less
Complaint; Filed by Ligia Bran (Plaintiff)Read MoreRead Less
Case Number: BC688575 Hearing Date: November 08, 2019 Dept: 37
HEARING DATE: November 8, 2019
CASE NUMBER: BC688575
CASE NAME: Ligia Bran v. Wellman Property Management Inc, et al.
MOVING PARTY: Defendants Robert Sevy, Jacqueline Sevy, Wellman Property Management Inc.
OPPOSING PARTY: Plaintiff Ligia Bran
TRIAL DATE: January 8, 2020
PROOF OF SERVICE: OK
PROCEEDING: Motion for Summary Adjudication
OPPOSITION: Timely filed October 25, 2019
REPLY: Timely filed November 1, 2019
TENTATIVE: The court GRANTS summary adjudication on issue nos. 3, 5, and the third and fourth causes of action. The court DENIES summary adjudication on issue nos. 1, 2, 4, and the second cause of action.
On December 28, 2017, plaintiff Ligia Bran (“plaintiff”) filed this instant suit against defendants Wellman Property Management, Inc. (“WPM”), Robert Sevy (“R. Sevy”), and Jacqueline Sevy (“J. Sevy”) (collectively, “defendants”). Plaintiff alleges the following facts. Plaintiff worked as the live-in property manager for the 22-unit apartment building located at 3804 Evans St., Los Angeles, California 90027 (“Subject Property”) since June 1, 2000, when Florence Properties, Inc. managed the Subject Property. Plaintiff and Florence Properties, Inc. had a written agreement regarding plaintiff’s employment and her compensation, which included free rent. On or around October 2000, the Subject Property was sold to new owners, including R. Sevy and J. Sevy, and plaintiff was given notice that WPM would begin managing the Subject Property. On October 17, 2000, plaintiff produced a letter to WPM detailing her job duties as the live-in property manager under Florence Properties, Inc. On October 31, 2000, plaintiff was issued a notice from Florence Properties, Inc. that her employment contract with Florence was terminated effectively but directed her to continue her duties as the property manager. Plaintiff continued to work as the property manager under WPM and regularly received written, oral, and in person correspondence from WPM until plaintiff received notice of termination of employment on April 12, 2017. During this time, plaintiff was never paid, never provided meal or rest periods, not provided with accurate itemized wage statements, not provided her personnel file upon request, not provided her payroll records upon request, and was not provided all wages earned upon her termination.
Plaintiff’s Complaint asserts eight causes of action for: (1) failure to pay minimum wages; (2) failure to pay overtime wages; (3) failure to provide rest period or compensation in lieu thereof; (4) failure to provide meal period or compensation in lieu thereof; (5) failure to produce employee file and payroll records upon request; (6) knowing and intentional failure to comply with itemized employee wage statement provisions; (7) failure to pay wages upon termination; and (8) violation of Bus. and Prof. Code sections 17200 et seq.
Defendants now move for summary adjudication of the second, third, and fourth causes of action.
Defendants’ Objections to the Declaration of Ligia Bran
Overruled: 1-4, 6-25
Defendants’ Objections to the Declaration of Cristal L. Cabrera
“The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Pursuant to Code of Civil Procedure, section 437c, subdivision (a):
A party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding. The motion may be made at any time after 60 days have elapsed since the general appearance in the action or proceeding of each party against whom the motion is directed or at any earlier time after the general appearance that the court, with or without notice and upon good cause shown, may direct…. The motion shall be heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise. The filing of the motion shall not extend the time within which a party must otherwise file a responsive pleading.
(Code Civ. Proc., § 437c, subd. (a).) A motion for summary judgment may be granted “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).)
“The motion shall be supported by affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken. The supporting papers shall include a separate statement setting forth plainly and concisely all material facts that the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence. The failure to comply with this requirement of a separate statement may in the court’s discretion constitute a sufficient ground for denial of the motion.” (Code Civ. Proc., § 437c, subd. (b)(1); see also Cal. Rules of Court, rule 3.1350(c)(2) & (d).)
In analyzing motions for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent's claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294 (Hinsley).) Pursuant to Code Civ. Proc., § 437c, subdivision (p)(2):
A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff or cross-complainant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.
(Code Civ. Proc., § 437c, subd. (p)(2).) The court must “view the evidence in the light most favorable to the opposing party and accept all inferences reasonably drawn therefrom.” (Hinesley, 135 Cal.App.4th at p. 294; Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389 [Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”].) A motion for summary judgment must be denied where the moving party’s evidence does not prove all material facts, even in the absence of any opposition (Leyva v. Sup. Ct. (1985) 164 Cal.App.3d 462, 475) or where the opposition is weak (Salasguevara v. Wyeth Labs., Inc. (1990) 222 Cal.App.3d 379, 384, 387).
Defendants assert plaintiff’s second cause of action fails because she cannot establish that she worked more than eight hours in a workday, more than 40 hours in a work week, or a seventh consecutive day in a work week. [Issue No. 1.]
“Notwithstanding any agreement to work for a lesser wage, any employee receiving less than the legal minimum wage or the legal overtime compensation applicable to the employee is entitled to recover in a civil action the unpaid balance of the full amount of this minimum wage or overtime compensation, including interest thereon, reasonable attorney’s fees, and costs of suit.” (Labor Code § 1194(a).) “Eight hours of labor constitutes a day’s work. Any work in excess of eight hours in one workday and any work in excess of 40 hours in any one workweek and the first eight hours worked on the seventh day of work in any one workweek shall be compensated at the rate of no less than one and one-half times the regular rate of pay for an employee…” (Labor Code § 510(a).)
Plaintiff alleges defendants violated Labor Code section 1194 by making plaintiff work in excess of eight hours per day or in excess of forty hours per week without any compensation. (Complaint ¶ 21.)
Defendants argue the evidence demonstrates plaintiff spent two hours or less per day carrying out her duties and plaintiff has not established that she worked the eight hours in a workday necessary to trigger overtime pay. (Opp., 5:14-18.) Defendant’s burden on summary adjudication is to put forth facts demonstrating there is no triable issue of material fact. “On summary judgment, an alternative method by which a defendant may meet its burden of showing that an essential element of the plaintiff’s claim cannot be established is to present evidence that the plaintiff ‘does not possess and cannot reasonably obtain, needed evidence.’ [Citation.] But unlike federal law, summary judgment law in California requires the defendant to present evidence, and not simply point out through argument, that the plaintiff does not possess and cannot reasonably obtain the needed evidence. [Citation.] Such evidence may consist of…the plaintiff’s factually devoid discovery responses…” (Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89, 110.) Defendants cannot simply state plaintiff has not established an element of the cause of action without more.
Second, the evidence Defendants point to in their separate statement to support their claim that plaintiff spent two hours or less per day carrying out her duties at the property does not support Defendants’ claim. The facts pointed to in Defendants’ separate statement merely list the various tasks Plaintiff performed and discuss Plaintiff’s other job as a cafeteria worker at Charles Kim Elementary School. It is the “Golden Rule” of summary judgment that “if it is not set forth in the separate statement, it does not exist.” (Zimmerman, Rosenfeld, Gersh & Leeds LLP v. Larson (2005) 131 Cal.App.4th 1466, 1477, citing United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 337.) Defendants’ proffered evidence does not establish that there exists no triable issue of material fact regarding whether plaintiff worked in excess of eight hours per day or in excess of forty hours per week without any compensation. In fact, plaintiff testified she would typically work at the Subject Property for four or five hours, but it could be more if there were any kind of problem. (Ripke Decl., Exh. 1 at 42:6-9.) Thus, defendants have failed to satisfy their burden on summary adjudication and the burden does not shift to plaintiff to establish that a triable issue exists.
Based on the foregoing, defendants’ motion for summary adjudication of issue no. 1 and the first cause of action is DENIED.
Failure to Provide Rest Period (3rd cause of action)
Defendants assert plaintiff’s third cause of action fails because plaintiff cannot establish that she worked more than 3.5 hours in a day [issue no. 2] and plaintiff cannot establish that she worked more than five hours without an unpaid, off-duty meal period of at least 30 minutes [issue no.3].
“If an employer fails to provide an employee a meal or rest or recovery period in accordance with a state law, including, but not limited 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, the employer shall pay the employee one additional hour of pay at the employee’s regular rate of compensation for each workday that the meal or rest or recover period is not provided.” (Labor Code § 226.7(c).)
Plaintiff alleges, “Defendants failed to provide Plaintiff with requisite rest periods as contemplated under the law because Plaintiff was never completely relieved of all of her duties.” (Complaint ¶ 25.) The Industrial Welfare Commission Wage Orders states, “every employer shall authorize and permit all employees to take rest periods, which insofar as practicable shall be in the middle of each work period. The authorized rest period shall be based on the total hours worked daily at the rate of ten (10) minutes net rest time per four (4) hours or major fraction thereof. However, a rest period need not be authorized for employees whose total daily work time is less than three and one-half (3 1/2) hours. Authorized rest period shall be counted, as hours worked, for which there shall be no deduction from wages.” (Cal. Code Regs., tit. 9, § 11050(12).)
Defendants submitted no evidence to support their argument that plaintiff cannot establish that she worked more than 3.5 hours in a day. Defendants’ separate statement references their undisputed material facts nos. 1-25 to support their argument, however these facts do not support defendants’ argument. In fact, defendants concede it is disputed that plaintiff worked at least 3.5 hours a day. (Opp., 6:25.) Thus, defendants fail to establish that there exist no triable issues of material fact as to issue no. 2.
Defendants submitted evidence that plaintiff admitted at her deposition that she was never told not to take a lunch or rest break. (Defendants’ Undisputed Material Facts (“DUMF”) No. 26.) “[T]he nature of an employer’s duty to provide meal periods, we conclude an employer’s obligation is to relieve its employee of all duty, with the employee thereafter at liberty to use the meal period for whatever purpose he or she desires, but the employer need not ensure that no work is done.” (Brinker Restaurant Corp. v. Sup. Ct. (2012) 53 Cal.4th 1004, 1017.) “It would be difficult to cast aside section 226.7’s parallel treatment of meal periods and rest periods and conclude that employers had completely distinct obligations when providing meal and rest periods. What makes sense instead is to infer that employers’ responsibilities are the same for meal and rest periods…” (Augustus v. ABM Security Services, Inc. (2016) 2 Cal.5th 257, 265.) Plaintiff has admitted that defendants did not prevent plaintiff from taking a lunch or rest break. Thus, defendants meet their burden on summary adjudication. The burden shifts to plaintiff to establish a triable issue of material fact exists as to whether she was at liberty to use the rest period for whatever purpose she desired. For the foregoing reasons, plaintiff fails to meet her burden.
Plaintiff argues defendants were under a duty to inform plaintiff of her right to a lunch or rest break. Plaintiff provides no legal authority for this proposition. Plaintiff cites to a federal case, which the court reminds plaintiff is merely persuasive on this court. Thus, plaintiff’s argument fails.
Additionally, plaintiff argues she was not completely relieved of all of her duties because she was required to always be available for in person, telephone, or email communications. Plaintiff’s argument does nothing to dispute defendants’ argument. It is undisputed that defendants never told plaintiff not to take a lunch or rest break. Plaintiff could use that time for whatever purpose she desired, and it was not defendants’ duty to ensure that no work was done by plaintiff. Plaintiff submits no evidence creating a triable issue of whether plaintiff was not permitted to take her rest break. “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  break, and does not impede or discourage them from doing so. What will suffice may vary from industry to industry…” (Brinker, supra, 53 Cal.4th at 1040.) Plaintiff declares that defendants told her she had to be available for whenever they, tenants or repair workers ever needed her. (Bran Decl. ¶ 26.) This does not alone create a triable issue. Simply because defendants told plaintiff being available was part of her job does not mean that defendants did not allow her to take reasonable breaks. Additionally, the nature of plaintiff’s job is one which does not facilitate a set time to have a break each day. It is up to plaintiff to decide when a break is necessary.
Based on foregoing, defendants’ motion for summary adjudication of issue no. 2 is DENIED. However, defendants’ motion is GRANTED as to issue no. 3 and the third cause of action.
Failure to Provide Meal Periods (4th cause of action)
Defendants argue plaintiff’s fourth cause of action fails because plaintiff cannot establish she worked more than five hours without an unpaid, off-duty meal period of at least 30 minutes and plaintiff cannot establish that defendants failed to authorize or provide a meal period.
Defendants fail to submit evidence establishing no triable issue of material fact exists as to plaintiff’s claim she worked more than five hours. Defendants’ argument fails for the same reasons their argument failed above as to the third cause of action. Thus, defendants fail to meet their burden as to issue no. 4. The burden does not shift to plaintiff and the court denies defendant’s motion as to issue no. 4.
Defendants put forth the same arguments as above. Plaintiff puts forth the same arguments as above. The court finds the same here as it did as to the third cause of action. Defendants met their burden in submitting evidence demonstrating no triable issue of material fact existed regarding defendants failing to authorize or permit a meal break. Plaintiff concedes she was never told not to take a meal break. (DUMF No. 26.) Plaintiff argues defendants were under a duty to inform plaintiff of her right and that plaintiff was not completely relieved of her duties. Plaintiff’s argument fails for the same reasons set forth previously. Thus, plaintiff fails to meet her burden on summary adjudication.
Based on the foregoing, defendants’ motion for summary adjudication of issue no. 4 is DENIED. However, defendants’ motion is GRANTED as to issue no. 5 and the fourth cause of action.
For these reasons, the court GRANTS summary adjudication on issue nos. 3, 5, and the third and fourth causes of action. The court DENIES summary adjudication on issue nos. 1, 2, 4, and the second cause of action.