Aug 29, 2016







WEDNESDAY, AUGUST 24, 2016, 3:00 P.M.

Courtroom 16 – Hon. Nancy Case Shaffer

3035 Cleveland Avenue, Santa Rosa



The following tentative rulings will become the ruling of the Court unless a party desires to be heard.  If you desire to appear and present oral argument as to any motion, you will need to contact the Judicial Assistant by telephone at (707) 521-6729 by 4:00 p.m. today, Tuesday, August 23, 2016.  Any party requesting an appearance must notify all other opposing parties of their intent to appear.  Parties in small claims cases and motions for claims of exemption are exempt from this requirement.


CourtCall is available for all Law and Motion appearances, EXCEPT parties in small claims cases and motions for claims of exemption which are mandatory appearances.  CourtCall can be reached directly at (888) 882-6878.




1.  MCV-237602, Midland v Tours

This is a collections action arising from the Defendant’s alleged default on a credit card.

On March 17, 2016, the Plaintiff served Requests for Admission. (Dec. DiPiero ¶ 2.)  The Defendant failed to respond. (Id. at ¶ 3) In response, the Plaintiff filed this motion, seeking to have the requests for admissions deemed admitted. (CCP § 2033.280.)  No opposition to the motion has been filed.

Plaintiff's motion is GRANTED. The Plaintiff is to submit an order consistent with this ruling.


2.  SCV-249580, American Express v. Seltzer

Appearances required.


3.  SCV-249647, Kurth v Bertrand

Appearances required.


4.  SCV-253407, Horve v. NDEX West

The demurrer brought by Defendant NDEX West to the Third, Fourth, Fifth, Seventh, Eighth and Ninth causes of action are sustained without leave to amend; the demurrer to the First, Second, and Sixth causes of action is overruled.

The respective requests for judicial notice are granted.


5.  SCV-256909, Gessner v. Pacific Bell

Defendant Pacific Bell Telephone Company (dba AT&T) moves for summary adjudication of seven issues which would dispose of the second and third causes of action.


Plaintiffs’ first amended complaint (“FAC”) alleges causes of action for: (1) Failure to Provide Meal Breaks – California Labor Code §§ 226.7 and 512; (2) Failure to Pay Earned Wages – California Labor Code §§ 204, 206, 218.5; and, (3) Unfair Competition – California Business and Professions Code § 17200.


a)     Requests for Judicial Notice

Defendant’s unopposed request for judicial notice of the following documents is granted: (1) Complaint filed in Washington v. Pacific Bell; (2) Complaint filed in Koval v. Pacific Bell; (3) the Third Consolidated Amended Class and Collective Action Complaint filed in Pacific Bell Wage and Hour Cases, the coordinated case; and (4) Pacific Bell’s Answer to the Third Consolidated Amended Class and Collective Action Complaint.

Plaintiffs’ request for judicial notice of the following documents is denied for lack of relevance as to: (1) the final statement of decision in Cole v. Pacific Bell Telephone Co., Sonoma Superior Court Case No. SCV-254659; and (2) the order after hearing in Cole v. Pacific Bell Telephone Co

Plaintiffs’ request for judicial notice is granted as to: (3) the Third Consolidated Amended Class and Collective Action Complaint filed in Pacific Bell Wage and Hour Cases; (4) the remittitur in Pacific Bell Wage and Hour Cases; (5) Pacific Bell’s Notice of Motion and Motion for Stay in the case Pacific Bell Telephone Co. v. California Department of Industrial Relations, Division of Labor Standards and Enforcement; and (6) the tentative ruling on Pacific Bell’s motion for stay.

The court does not take judicial notice of the truth of the matters asserted in the above documents. (Day v. Sharp (1975) 50 Cal.App.3d 904, 914.) 

b)    Second Cause of Action [Issues 1-5: Private Right of Action/Attorneys' Fees/Statute of Limitations]

Defendant contends that plaintiffs’ second cause of action because they have no private right of action (Issues 1 – 4) and no basis for attorney fees (Issue 5).  Alternatively, defendant argues those causes of action are time-barred (Issues 6 – 7).

Plaintiffs concede they have no private right of action or right to attorney fees under the code sections cited in the caption of their second cause of action.  However, plaintiffs argue the facts they alleged nonetheless state a cause of action for unpaid wages pursuant to California Labor Code §1194, which does provide for a private right of action and attorney fees. Section 1194 states, in pertinent part: “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.” Plaintiffs further assert their claims are not time-barred because the statute of limitations was tolled based on their filing of the DLSE claims and by the pending class action.

Defendant contends that plaintiffs cannot raise Labor Code §1194 as a new theory of recovery in their opposition because it is procedurally improper and prejudicial and that even if plaintiffs’ new theory were allowed, it fails because plaintiffs have no statutory right to recover overtime as they are covered by a collective bargaining agreement. (Cal. Lab. Code, §517.)  Additionally, defendant contends the statute of limitations was not tolled.

“The materiality of a disputed fact is measured by the pleadings, which set the boundaries of the issues to be resolved at summary judgment.”  (Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1250.)  “Accordingly, the burden of a defendant moving for summary judgment only requires that he or she negate plaintiff’s theories of liability as alleged in the complaint; that is, a moving party need not refute liability on some theoretical possibility not included in the pleadings.”  (Hutton v. Fid. Nat'l Title Co. (2013) 213 Cal.App.4th 486, 493.)  “The [papers] filed in response to a defendant’s motion for summary judgment may not create issues outside the pleadings and are not a substitute for an amendment to the pleadings.”  (Ibid, quoting County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 332.) 

Plaintiffs have not pled and cannot rely on Labor Code §1194 in order to defeat defendant’s motion.  The second cause of action cites Labor Code §§ 204, 206 and 218.5 in the heading and generally alleges that: “Defendants failed and refused to pay plaintiffs all the wages that they earned working for defendant as required under the Labor Code and other applicable laws and regulations. Specifically, defendant did not pay plaintiffs for the 30 minutes of time they spent for a meal break, even though that time was compensable under the California Labor Code and IWC Wage Orders.” (FAC, ¶18.)  There is no mention of minimum wage or overtime, let alone Labor Code §1194; and plaintiffs have not sought leave to amend their pleadings. Moreover, each of the plaintiffs’ discovery responses identify the damages he is seeking as: “I am entitled to one hour of wages at my regular rate of pay for each day I worked more than five hours during the time period covered by the lawsuit. I am further entitled to 30 minutes at my regular rate of pay for time that was unpaid on each of those workdays.” (Rollins Decl., Exs. I – L.) Again, plaintiffs did not give any indication that they were seeking minimum wage or overtime pay.

Further, defendants have submitted evidence that plaintiffs are exempt from recovering statutory overtime since they are union members who are subject to a collective bargaining agreement.  Labor Code §514 states:

Sections 510 and 511 do not apply to an employee covered by a valid collective bargaining agreement if the agreement expressly provides for the wages, hours of work, and working conditions of the employees, and if the agreement provides premium wage rates for all overtime hours worked and a regular hourly rate of pay for those employees of not less than 30 percent more than the state minimum wage.

Defendant’s evidence includes the collective bargaining agreements (providing for hours worked, wages and premium pay for overtime) and plaintiffs’ deposition testimony stating that they were union members. (Rollins Decl., ¶¶8-16, Exs. M – R.)

Based on the foregoing, the court grants summary adjudication of the second cause of action (Issues 1 – 5).   Accordingly, the court need not reach Issue 6, which seeks summary adjudication of the second cause of action on the alternate ground that it is barred by the statute of limitations.

c)     Third Cause of Action [Issue 7:  Statue of Limitations]

Defendant’s motion for summary adjudication of the third cause of action (Issue 7) is denied.

Plaintiffs are entitled to equitable tolling based on the administrative proceedings.

“The fundamental purpose underlying statutes of limitations is to protect defendants from having to defend stale claims by providing notice in time to prepare a fair defense on the merits."  (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1112 [245 Cal.Rptr. 658, 751 P.2d 923].)”  (Downs v. Dep't of Water & Power, supra, 58 Cal.App.4th 1093, 1099.)

While it is true that plaintiffs chose the administrative forum originally, it appears they will be unable to obtain any relief from the administrative process. In large part, this is because defendant has obtained an indefinite stay of that process. Under the circumstances, plaintiffs should not be denied the benefit of tolling because of their initial decision to take the administrative path. The DLSE claim and the class action served to put defendant on notice of plaintiffs’ claims.  Plaintiffs’ injuries all arise from the alleged meal break violations clearly at issue in both those proceedings. Defendant has not established that plaintiffs acted unreasonably or in bad faith in initially pursuing the administrative forum. The evidence supports the conclusion that defendant had ample notice and time to prepare a fair defense on the merits to the third cause of action for unfair competition.  (Plaintiffs’ SMF, Nos. 1 & 7.) Consequently, the court finds plaintiffs have raised a triable issue of material fact as to whether the statute of limitations was tolled.

Defendants are to submit a written order in accordance with this ruling.


6.  SCV-259188, Nelson v. Hartwick

Appearances required.


© 2016 Superior Court of Sonoma County