On 02/23/2017 LUIS VALDIVIA filed a Labor - Other Labor lawsuit against THE TICKET CLINIC. 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
THE TICKET CLINIC
MEDVEI SEBASTIAN M. ESQ.
FELDMAN JOSHUA Z. ESQ.
2/23/2017: COMPLAINT FOR DAMAGES, DECLARATORY RELIEF, AND EQUITABLE RELIEF: 1. WRONGFUL TERMINAIION IN VIOLATION OF PUBLIC POLICY;ETC
3/17/2017: ANSWER TO PLAINTIFF'S UNVERIFIED COMPLAINT
5/1/2017: NOTICE OF CASE MANAGEMENT CONFERENCE
6/23/2017: Minute Order
9/22/2017: Minute Order
11/16/2017: SUBSTITUTION OF ATTORNEY
11/16/2017: Minute Order
Answer to Unverified Complaint Filed by Attorney for Deft/RespntRead MoreRead Less
ComplaintRead MoreRead Less
Case Number: BC651238 Hearing Date: December 08, 2020 Dept: 17
Superior Court of California
County of Los Angeles
THE TICKET CLINIC
Case No.: BC651238
Hearing Date: December 8, 2020
Defendant’s motion for summary judgment is GRANTED.
On February 23, 2017, Plaintiff Luis Valdivia (Plaintiff) filed suit against the Ticket Clinic (Defendant), alleging: (1) wrongful termination in violation of public policy; (2) failure to furnish timely and accurate wage statements; (3) failure to make payment within required time; (4) unfair competition; and (5) breach of oral contract.
On February 5, 2019, this action was reclassified from unlimited to limited. On August 26, 2019, this action was again reclassified as unlimited.
On January 31, 2019, Plaintiff dismissed his first cause of action for wrongful termination in violation of public policy.
On July 16, 2019, Plaintiff dismissed his prayer for punitive damages.
Defendant now moves for summary judgment, or in the alternative, summary adjudication, of Plaintiff’s remaining causes of action.
Code of Civil Procedure section 437c, subdivision (a) provides that 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 shall be granted if there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) Subdivision (p)(2) of the same section provides that where a defendant presents evidence showing one or more elements of a cause of action cannot be established, then the burden shifts to plaintiff to show the existence of a triable issue of material fact. (See Blue Shield of California Life & Health Insurance Co. v. Superior Court (2011) 192 Cal.App.4th 727, 732.) A party is also permitted to move for summary adjudication of a particular issue, which can be granted “only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).)
The moving party’s burden on summary judgment “is more properly one of persuasion rather than proof, since he must persuade the court that there is no material fact for a reasonable trier of fact to find, and not to prove any such fact to the satisfaction of the court itself as though it were sitting as the trier of fact.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 fn.11, original italics.)
The Court rules as follows on Plaintiff’s submitted objections:
· No.1: Overruled
· No. 2: Overruled
· No. 3: Overruled
· No. 4:Overruled
· No. 5: Overruled
· No. 6: Overruled
· No. 7: Overruled
The Court rules as follows on Defendant’s submitted objections:
· No. 1: Overruled
· No. 2: Overruled
· No. 3: Overruled
· No. 4: Overruled
· No. 5: Overruled
· No. 6: Sustained
· No. 7: Sustained
· No. 8: Overruled
· No. 9: Sustained
· No. 10: Overruled
I. Failure to Furnish Timely and Accurate Wage Statements
Labor Code section 226, subdivision (a) requires that “An employer, semi-monthly or at the time of each payment of wages, shall furnish to his or her employee…an accurate itemized statement in writing.
In order to recover for a section 226(a) violation, an employee must show that he or she suffered “injury as a result of knowing and intentional failure by an employer to comply with subdivision(a).
Defendant argues that its wage statements complied with section 226(a) requirements, and that Plaintiff cannot show it knowingly and intentionally failed to comply with the law. To show its itemized wage statements complied with the requirements of section 22(a), Defendant submitted copies of Plaintiff’s itemized wage statements. Moreover, Defendant submitted a declaration from Mindy Jennings, the owner of the payroll service responsible for processing Defendant’s payroll, who stated that the itemized electronic wage statements contain: (1) gross wages earned; (2) total hours worked; (3) the number of piece-rate units earned; (4) all deductions; (5) net wages earned; (6) inclusive dates of the pay period; (7) employee name and SSN; (8) name and address of legal employer; and (9) all applicable hourly rates. (Jennings Decl., ¶ 7.)
Defendant also submitted evidence to show that it did not knowingly and intentionally fail to comply with subdivision (a). Specifically, Defendant evidence that its payroll functions are outsourced to an experienced payroll company which furnished itemized wage statements in compliance with California wage and hour laws. (SS ¶ 26.) Defendant submitted evidence that itemized wage statements were available through the “Employee Self-Service” feature, and that during on-boarding, each newly hired employee was informed of Defendant’s payroll process and procedures, including paydays and methods of receiving compensation. (SS ¶¶ 27-28.) Defendant submitted evidence that Plaintiff never brought the issue of deficient itemized wage statements to their attention. While Defendant concedes that Plaintiff’s final paycheck, which was issued as a paper check, did not contain an itemized wage statement, this mistake was an isolated mistake. (SS ¶ 63) (Section 226(e)(3); Wilner v. Manpower, Inc. (N.D. Cal. 2014) 35 F.Supp.3d 1116, 1130, noting section 226(e)(3) provides that a “knowing and intentional failure” does not include an isolated and unintentional payroll error due to clerical or inadvertent mistake.”) Defendant argues that Plaintiff had always received his paycheck through direct deposit. Upon his termination, Plaintiff refused to leave the building without immediate payment. As a result, Defendant’s employee Godinez was asked to manually issue a final paycheck at the last minute. This employee had just recently taken over payroll and was still learning how to prepare manual paychecks. She submitted a declaration that her failure to attach an itemized wage statement was the result of an “isolated, unintentional, innocent mistake.” (Godinez Decl., ¶19.)
Defendant’s evidence is sufficient to support a reasonable inference that it complied with the requirements of section 226(a), and did not knowingly and intentionally fail to furnish Plaintiff with an itemized wage statement. Accordingly, the burden shifts to Plaintiff to disclose a triable issue of fact as to both prongs of the analysis.
The only piece of evidence submitted as part of Plaintiff’s opposition was a signed declaration from Plaintiff himself. Plaintiff argues that he was not he was not given timely access to his paystubs for the first two months of his employment, and that the earliest Defendant can demonstrate any communication to him to access the online system is March 25, 2016. However, the only evidence provided to support this is Plaintiff’s assertion that it is true (Plaintiff’s Decl., ¶ 4.) Plaintiff did not attach any evidence which could show that he did not receive an email until March 25, 2016, to register with the online system that allowed him to view his itemized wage statement. Plaintiff also argues that the itemized wage statements that were provided were inadequate in that they did not provide information relating to Plaintiff’s (1) mandatory sick pay accrual; (2) applicable hourly rate; and (3) total hours worked. However, again, Plaintiff has submitted no evidence to refute Defendant’s evidence that the hourly rate and total hours worked were provided in the itemized wage statements. (See Gondinez Decl., ¶19.) Plaintiff did not submit a single itemized wage statement to support his contention that he received itemized wage statements which violated section 226(a) requirements. Defendant’s submitted wage statements clearly show that the total hours worked were listed. (See Godines Decl.) Moreover, the applicable hourly rate can be easily calculated by dividing the total hours worked (which is listed) by the total wage paid (which is also listed.) Plaintiff submitted no evidence to show that this is violative of section 226(a).
Given the Court’s finding that no triable issue of fact exists as to whether or not Defendant’s itemized wage statements violated section 226(a), its analysis could end here. However, even assuming arguendo that Defendant’s wage statements violated section 226(a) requirements, Plaintiff must also show that this violation was done knowingly and intentionally. To show that Defendant knowingly and intentionally failed to furnish itemized wage statements, Plaintiff argues that, “there is significant evidence that Defendant failed to provide Plaintiff with accurate itemized wages statements and in some cases, any itemized wage statement at all, despite knowing it was obligated to do so. Fundamentally, the fact that Defendant had extensive policies pertaining to the furnishing of itemized wage statements, as well as the fact that Defendant’s chief executive was intimately involved in crafting those policies in conjunction with a third party service, demonstrates that Defendant knowingly violated section 226 of the Labor Code.” (Opp., 7: 14-19.) However, as noted, Plaintiff submitted only a single declaration from Plaintiff, and did not submit any evidence to show that Defendant’s chief executive was “intimately involved” in crafting the those policies. Plaintiff similarly did not submit any evidence that could show Defendant had “extensive policies pertaining to the furnishing of itemized wage statements.” (Ibid.) For example, Plaintiff did not submit any of Defendant’s policies as evidence.
Plaintiff’s assertions about Defendant’s policies and executive involvement must be corroborated by external evidence which could support a reasonable inference that they are true. While the Court accepts well-pled allegations as true at the pleading stage, this is not true of the summary judgment stage. (Popescu v. Apple, Inc. (2016) 1 Cal.App.5th 39,46.) Plaintiff’s assertion that Defendant knowingly and intentionally violated section 226(a) must be supported by evidence that could show that they did so. Plaintiff’s mere assertion that it is true, unsupported by any supporting evidence, is insufficient to raise a triable issue of fact as to the knowledge requirement of Labor Code section 226.
Moreover, at times, Plaintiff seems to be arguing that the “knowing” requirement is satisfied per se by virtue of violating section 226(a). This is not so:
If the legislature had intended to allow an employee to recover damages for an employer's violation of Section 226(a) without having to make any showing beyond a showing of the Section 226(a) violation itself, then the legislature could simply have omitted the qualifier “knowing and intentional” before the word “failure.” [Plaintiff’s] proposed construction of Section 226(e)(1) is unsound because it essentially excises the qualifier “knowing and intentional” from the statute; this contravenes the canon of statutory construction requiring that “a construction making some words surplusage is to be avoided.”
(Wilner v. Manpower, Inc. (N.D. Cal. 2014) F.Supp.3d 1116, 1131.)
While Plaintiff need not show Defendant knew its conduct to be unlawful, to satisfy the knowing and intentional requirement, Plaintiff must show that Defendant knew that that no itemized wage statements were provided in the initial months of employment, or that they lacked items required by section 226(a). (Wilner, supra, F. Supp.3d at p. 1131.) (Consistent with the foregoing, for purposes of this action, the Court concludes that a “knowing and intentional” violation requires … that [Defendant] knew that its wage statements did not contain the inclusive dates of the period for which its employees were paid, and knew that they did not contain Plaintiff’s address. [Defendant] is not required to demonstrate that [Defendant] knew that this conduct, if otherwise proven, was unlawful.) Plaintiff did not submit any evidence which could show that Defendants knew that Plaintiff had not been given access to the payroll portal that allowed him to view his itemized wage statement. For example, Plaintiff has not submitted any evidence to suggest that he ever notified Defendant that he could not access his itemized wage statement, or that he reached out to Defendant for clarification for how to access the statement.
As for the final paycheck, Plaintiff has not submitted any evidence to raise a triable issue of fact as to whether Defendant’s failure to furnish an itemized wage statement with Plaintiff’s final paper paycheck was more than an isolated and unintentional mistake. (Wilner v. Manpower, Inc. (N.D. Cal. 2014) 35 F.Supp.3d at p. 1130, noting section 226(e)(3) provides that a “knowing and intentional failure” does not include an isolated and unintentional payroll error due to clerical or inadvertent mistake.”) While Plaintiff states in his opposition that he was unable to print his final paystub from the online portal, Plaintiff has, again, not submitted any evidence of this. Indeed, Plaintiff’s declaration does not even state that he was unable to do so. (See Plaintiff’s Decl.) Accordingly, Plaintiff has not submitted evidence to show that Defendant’s failure to attach a itemized wage statement to the final paycheck was more than an “isolated and unintentional payroll error due to clerical or inadvertent mistake.” (Wilner, supra, 35 F.Supp.3d at p.1130.)
II. Failure to Make Payment Within Required Time
Labor Code section 203 provides for penalties, “[i]f an employer willfully fails to pay, without abatement or reduction … any wages of an employee who is discharged or who quits…”
Defendant argues that Plaintiff cannot show that he was entitled to any payment that he did not receive. Defendant submitted evidence that his last itemized wage statement indicates that Plaintiff was paid a total of 88 regular hours, which consisted of 80 hours for the payroll period November 30, 2016-December 13, 2016 and 8 hours on December 14, 2016. (SS ¶ 76.) Defendant submitted evidence that Plaintiff was unable in deposition to identify any inadequacies in the final payroll statement. (SS ¶ 74.) Defendant also submitted evidence that Plaintiff was not entitled to severance pay under Defendant’s policies. (SS ¶ 87.)
Defendant’s evidence is sufficient to support a reasonable inference that it did not violate Labor Code section 203. Accordingly, the burden shifts to Plaintiff to disclose a triable issue of fact.
Plaintiff argues that his paycheck is inadequate because he:
[E]ntered into an oral contract with Defendant’s principal Dennis Bruce, for payment of all of my wages for December 2016 as my file [sic] pay on severance from the company. The amount to be paid were my standard wages at the time for two pay periods, or $2,195.59 times two, which equals $4,391.18. On my last date of employment, after an altercation with Dennis Bruce over Defendant’s failure to pay the amount promised, I was given a check for $2,337.51 reflecting a gross pay of $2,414.72, which was $1,976.46 short of what was orally agreed between the parties. Dennis Bruce intentionally reneged on his promise to pay the full month of wages, which was what precipitated the altercation.
(Plaintiff Decl., 10.)
However, this argument speaks to his fifth cause of action for breach of oral contract, not to a section 203 violation. Plaintiff does not seem to dispute that he was not owed severance pay per the terms of his employment. Because he was not entitled to severance pay as part of his employment contract, any claim for unpaid severance would not be a claim for unpaid wages. (See Citroen Cars Corp. v. Unemployment Ins. Appeals Bd. (1980) 107 Cal.App.3d 945, 948, finding there that severance pay are not wages in the unemployment context; See Labor Code section 200(a), defining wages as “all amounts for labor performed by employees of every description.” (emphasis added.)) Put another way, to the extent Plaintiff can show he entered into an oral contract for severance pay, Defendant’s failure to pay that severance would entitled Plaintiff to damages for breach of contract, not for violation of Labor Code section 203. Plainitff did not submit any case law to suggest that severance pay, not promised pursuant to employment, but through a separately alleged oral contract, would constitute wages for the purpose of Labor Code section 203.
III. Unfair Competition
As set forth above, Plaintiff has failed to meet his burden to show a triable issue of fact as to whether Defendant violated Labor Code section 226(a) or section 203. Accordingly, Plaintiff’s UCL claim, which is derivative of those violations, must also fail.
IV. Breach of Oral Contract
The elements for breach of contract cause of action are: (1) existence of contract; (2) plaintiff’s performance or excuse for nonperformance; (3) defendant’s breach (or anticipatory breach); and (4) resulting damage. (Wall Street Network, Ltd. v. N. Y. Times Co. (2008) 164 Cal.App.4th 1171, 1178.)
Defendant argues that Plaintiff has failed to show that an oral contract was entered into to pay severance. Specifically, Defendant submitted evidence that Plaintiff was not entitled to severance pay under Defendant’s policies. (SS ¶ 87.) Defendant submitted evidence that Defendant’s executive offered to pay a severance to Plaintiff, after a request from Plaintiff, telling Plaintiff he had done good work for the company, and stated, “Yes, I’m going to take care of you for the rest of December.” (SS ¶¶ 113, 155.) Plaintiff asked if the executive wanted to put a severance agreement in writing, but the executive said that it wasn’t necessary because his back was “killing” him, and asked Plaintiff to follow up with him about the severance paycheck. (SS ¶ 118.) Plaintiff asked if there was a way to just “get it done,” at which point the executive left his office and returned 2-5 minutes later with a manual check. (SS ¶¶ 119.) When the executive presented the check to Plaintiff, Plaintiff thought that the amount was lower than they had agreed, and said, “Hey Mr. Bruce I thought we agreed on two weeks. Is this the right amount?” (SS ¶ 120.) Plaintiff handed the check back, and did not accept the check. (SS ¶ 121.)
In presenting this evidence, Defendant argues that no oral contract was formed because Defendant’s offer was rejected when Plaintiff refused to accept the check. In other words, because there was no acceptance, there was no oral contract. However, Defendant’s own evidence disputes this interpretation: evidence that Plaintiff rejected the check after stating, “Hey Mr. Bruce I thought we agreed on two weeks. Is this the right amount,” suggests that an agreement had already been reached, and Plaintiff’s refusal of the check was due to a perceived breached of that agreement.
Still, while not addressed by either party, the Court must conclude that no oral contract was formed because there was no underlying consideration for the severance pay. As such, the offer of severance merely constituted a gift.
In Dow v. River Farms Co. of Cal. (1952) 110 Cal.App.2d 403, 404, Mr. Dow was the president of a corporation. Upon his retirement, the board of directors elected to provide him with a $50,000 payment as thanks for his years of devotion to the company. However, when presented with the payment, Mr. Dow refused to accept it. (Id. at p. 405.) Upon his death, his wife filed suit against the corporation to recover the $50,000, “alleging that the corporation had promised and agreed but failed to pay that sum to her husband.” (Id. at p. 404.) In ruling in favor of the corporation, the Court found that the $50,000 payment was not an offer to contract, but a promise to make a gift, and was unsupported by consideration because it was a promise to pay based on past services. Specifically, the Court wrote:
In our opinion, however, this portion of the resolution was not an offer to contract at all—it was simply a promise to make a gift. That gift was rejected by Dr. Dow. Even if it had not been rejected, it amounted to no more than a promise to make a gift, and, as such, was unenforceable. Such a promise is not supported by a legal consideration.
Under section 1606 of the Civil Code, a moral obligation is insufficient to support an express promise where there has not been a prior legal obligation founded on good and valuable consideration.’
In the instant case the trial court found that when the services were rendered there was no expectation of payment. That finding is amply supported by the resolution and by Dr. Dow's letter. They demonstrate that when the services were rendered there was no expectation on Dr. Dow's part that he was to receive payment, or that the corporation intended to pay. There never was a past legal obligation, perfect or imperfect. The promise amounted to no more than a promise to make a gift and is unenforceable.
(Dow, supra, 110 Cal.App.2d 403, 408-411, emphasis added.)
Similarly, here, there is no evidence to suggest Defendant intended to pay this money (there was no severance policy) or that Plaintiff had an legal expectation of such payment. Rather, the evidence suggests that Defendant’s executive felt bad that Plaintiff had to be terminated due to a downturn in business, and made a promise to gift Plaintiff the equivalent of two-weeks pay as a severance. Moral obligation, alone, is insufficient to support an express promise without the existence of otherwise good and value consideration. (Dow, supra, 110 Cal.App.2d 403, 408-411.) Plaintiff has not submitted any evidence which could point to any consideration, i.e., an exchange of legal benefit and detriment that would transform this promise in to an offer to contract. The only statement Plaintiff makes with regard to his conversation with the executive if that “At the time of my termination, I entered into an oral contract with Defendant’s principal, Dennis Bruce, for payment of all my wages for December 2016 as my file pay on severance from the company….Dennis Bruce intentionally reneged on his promise to pay the full month of wages, which was what precipitated the altercation.” (Plaintiff’s Decl., ¶ 10.)
Plaintiff’s past services cannot serve as consideration for this new promise, and he has not disclosed any other bargained for benefit or detriment to transfer Defendant’s promise into a contract. Put another way, nothing was contracted for—Plaintiff was not entitled to this payment, nor was he obligated to do anything in exchange for the payment. Accordingly, the promise to pay severance was a gift, not an oral offer to contract. (Dow, supra, 110 Cal.App.2d at pp. 408-411.)
Based on the foregoing, Defendant’s motion for summary judgment is GRANTED.
It is so ordered.
Dated: , 2020
Hon. Jon R. Takasugi
 Defendant also submitted evidence to show that an electronic, rather than paper, itemized wage statement is acceptable. In opposition, Plaintiff did not raise any counter-argument, and so the Court considers this point conceded.
 The Court notes that this motion is the first time that Plaintiff has raised the issue of mandatory sick pay accrual. Because this allegation was at no time include in his Complaint, the Court does not consider this particular issue. Plaintiff is limited to the four corners of his Complaint.
Get Deeper Insights on Court Cases