Whitaker v. Costco Wholesale Corporation et al

Filing 226

ORDER signed by Judge John A. Mendez on 8/14/2013 GRANTING in part and DENYING in part defendant's 222 Motion for Partial Summary Adjudication. Court is GRANTING summary judgment for defendant on plaintiff's second cause of action and DENYING partial summary judgment on plaintiff's first cause of action. (Marciel, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ED WHITAKER,

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2:13-cv-00668 JAM-EFB

Plaintiff,

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No.

v.
COSTCO WHOLESALE CORPORATION
AND DOE ONE THROUGH AND
INCLUDING TEN,

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ORDER GRANTING DEFENDANT’S
MOTION FOR PARTIAL SUMMARY
JUDGMENT IN PART AND DENYING IN
PART

Defendant.

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This matter is before the Court on Defendant Costco

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Wholesale Corporation’s (“Defendant”) Motion for Partial Summary

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Judgment (Doc. ##222, 59).

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opposes the motion (Doc. ##223, 60) and Defendant replied (Doc.

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##225, 66).1

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granted in part and denied in part.

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///

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///

Plaintiff Ed Whitaker (“Plaintiff”)

For the following reasons, Defendant’s motion is

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This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was scheduled
for July 24, 2012.
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I.

FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND

This action was originally filed on April 4, 2011, in the

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U.S. District Court for the Central District of California

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(“Central District court”) by Virginia Velazquez (“Velazquez”)

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and Steven Berry (“Berry”) as a putative class action, but class

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certification was denied (Doc. ##1, 53).

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added in the First Amended Complaint (“FAC”), which was logged

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on March 31, 2011 (Doc. #15).

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Berry, and Plaintiff filed the Second Amended Complaint (“SAC”),

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the operative complaint in this action, alleging three causes of

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action against Defendant: (1) failure to pay overtime in

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violation of California Labor Code § 1194(a); (2) failure to

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produce continuing wages under Labor Code Section 203 (“Section

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203”); and (3) unfair competition under California Business and

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Professions Code Sections 17200 et seq. (“UCL”)(Doc. #39).

Plaintiff was first

On August 26, 2011, Velazquez,

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On July 30, 2012, Defendant filed two motions with the

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Central District court: a motion for summary judgment on portions

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of Velazquez’s and Plaintiff’s claims (Doc. #59) and a motion to

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sever trials and to transfer Plaintiff’s action to the U.S.

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District Court for the Eastern District of California (Doc. #58).

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On April 5, 2013, the Central District court severed and

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transferred Plaintiff’s claims to this Court (Doc. #217).

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addition, the Central District court granted in part and denied

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in part Defendant’s motion for judgment on Velazquez’s claims

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(Doc. #72).

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JVS RNBX, 2012 WL 3731780 (C.D. Cal. Aug. 27, 2012).

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2013, Defendant re-noticed its motion for summary judgment as to

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Plaintiff’s claims before this Court (Doc. #222).

In

See Velazquez v. Costco Wholesale Corp., SACV 11-508

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On June 21,

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A.

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The facts as to Plaintiff’s employment are largely

Plaintiff’s Employment

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uncontroverted.

Plaintiff worked for Defendant as a receiving

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manager from July 13, 2005, through approximately October 21,

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2006.

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Although Plaintiff was no longer a receiving manager after

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October 21, 2006, Plaintiff remained employed by Defendant.

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¶ 2.

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of absence in part for medical reasons.

Pl.’s Statement of Genuine Disputes, Doc. #62, at ¶ 1.

Id.

Starting in November 2009, Plaintiff took a yearlong leave
Id. ¶ 8.

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B.

The Predecessor Lawsuit

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Prior to this lawsuit, in Drenckhahn v. Costco Wholesale

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Corp. et al., CV 08-1408 JHN (SSx), a former receiving manager

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for Defendant filed an action on December 26, 2007.

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2012 WL 3731780, at 2.

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representative basis on behalf of other receiving managers

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employed by Defendant in California since December 2003.

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Class certification was denied on March 31, 2010, 826 days after

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the action was filed.

Velazquez,

The action was brought on a

Id.

Id.

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II.

OPINION

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A.

Legal Standard

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The Federal Rules of Civil Procedure provide that “a court

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shall grant summary judgment if the movant shows there is no

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genuine issue of material fact and that the movant is entitled to

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judgment as a matter of law.”

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asserting that a fact cannot be disputed must support the

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assertion by citing to particular parts in the record, or by

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showing that the materials cited do not establish the presence of

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a genuine dispute.

Fed. R. Civ. P. 56(a).

Fed. R. Civ. P. 56(c)(1)(A)-(B).
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A party

The purpose

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of summary judgment “is to isolate and dispose of factually

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unsupported claims or defenses.”

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U.S. 317, 323-24 (1986).

Celotex Corp. v. Catrett, 477

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The moving party bears the initial responsibility of

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informing the district court of the basis for its motion, and

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identifying those portions of “the pleadings, depositions,

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answers to interrogatories, and admissions on file, together with

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the affidavits, if any,” which it believes demonstrate the

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absence of a genuine issue of material fact.

Celotex Corp., 477

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U.S. at 323 (quoting Fed. R. Civ. P. 56(c)).

That burden may be

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met by “‘showing’- that is, pointing out to the district court-

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that there is an absence of evidence to support the non moving

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party’s case.”

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531 (9th Cir. 2000) (quoting Celotex Corp., 477 U.S. at 325).

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the moving party meets its burden with a properly supported

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motion, the burden shifts to the opposing party.

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opposition “may not rest upon the mere allegations or denials of

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the adverse party’s pleading,” but must provide affidavits or

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other sources of evidence that “set forth specific facts showing

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that there is a genuine issue for trial.”

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263 F.3d 1070, 1076 (9th Cir. 2001) (quoting Fed. R. Civ. P.

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56(e)).

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is material and the issue is genuine.

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Inc., 477 U.S. 242, 248 (1986).

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might affect the outcome of the suit under governing law.

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fact issue is “genuine” when the evidence is such that a

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reasonable jury could return a verdict for the non-moving party.

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Villiarmo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th

Fairbank v. Wunderman Cato Johnson, 212 F.3d 528,

Id.

If

The

Devereaux v. Abbey,

The adverse party must show that the fact in contention
Anderson v. Liberty Lobby,

A “material” fact is a fact that

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Id.

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Cir. 2002).

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alone does not create a genuine issue of fact.

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must view the facts and draw inferences in the manner most

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favorable to the non-moving party.

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v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

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However, uncorroborated and self-serving testimony
Id.

The Court

Matsushita Elec. Indus. Co.

The mere existence of a scintilla of evidence in support of

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the non-moving party’s position is insufficient: “There must be

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evidence on which the jury could reasonably find for [the non-

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moving party].”

Anderson, 477 U.S. at 252.

This Court thus

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applies to either a defendant’s or plaintiff’s motion for summary

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judgment the same standard as for a motion for directed verdict,

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which is “whether the evidence presents a sufficient disagreement

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to require submission to a jury or whether it is so one-sided

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that one party must prevail as a matter of law.”

Id.

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B.

Judicial Notice

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Both parties request judicial notice of several documents

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related to the Drenckhahn action and administrative agency

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standards.

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2; Def.’s Request for Judicial Notice, Doc. #222 referencing Doc.

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#66-2.

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the determination of this motion and therefore, both requests for

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judicial notice are denied.

Pl.’s Request for Judicial Notice, Ex. 5, Doc. #223-

However, the Court finds these documents unnecessary for

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C.

Discussion

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Defendant moves for summary judgment on Plaintiff’s second

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cause of action for violation of Labor Code Section 203 and

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moves for partial summary judgment on Plaintiff’s first cause of

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action for failure to pay overtime in violation of the Labor

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Code.
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Meet and Confer Requirement

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As a preliminary matter, Plaintiff argues that Defendant’s

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motion should be denied for failure to meet and confer pursuant

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to Central District Local Rule 7-3.

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does not apply in the Eastern District and there is no equivalent

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rule.

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Rule 7-3 is not an appropriate ground to deny Defendant’s motion.

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However, this local rule

Accordingly, the Court finds that Central District Local

2.

Labor Code Section 203 Claim

Defendant argues that Plaintiff’s Section 203 claim for

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continuing wages fails because his employment has not been

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terminated.

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continuing-wage liability under Section 203.

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Plaintiff argues that his leave of absence triggers

Under Section 203, “If an employer willfully fails to pay,

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. . . any wages of an employee who is discharged or who quits,

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the wages of the employee shall continue as a penalty from the

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date thereof at the same rate until paid or until an action

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therefor is commenced . . . .”

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discharge requirement is satisfied by an employee’s “involuntary

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termination from an ongoing employment relationship,” as well as

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when “an employer releases an employee after completion of a

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specific job assignment or time duration for which the employee

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was hired.”

Smith v. Superior Court, 39 Cal.4th 77, 89, (2006)

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(citation).

In Velazquez, the Central District court addressed

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the same arguments at issue here and held that a medical leave of

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absence could not be considered a discharge for purposes of

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Section 203 because courts interpreting Smith have found that

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leaves of absence are not discharges and because policy

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considerations favor not treating employees on leaves as former

Cal. Lab. Code § 203.

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The

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employees.

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08CV1813WQH(POR), 2009 WL 69312, *7-8 (S.D. Cal. Jan. 8, 2009);

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Alvarado v. Costco Wholesale Corp., C 06-04015 JSW, 2008 WL

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2477393, at *2-3 (N.D. Cal. June 18, 2008)).

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2012 WL 3731780, at *5-6 (citing Jappa v. California,

In the instant case, starting in November 2009, Plaintiff

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took a yearlong leave of absence in part for medical reasons, but

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he is currently employed by Defendant.

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leave constitutes discharge because Smith supports a more

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inclusive construction of the word “discharge.”

Plaintiff argues that a

However, the

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Court finds the Central District court’s interpretation of

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“discharge” in Velazquez persuasive.

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absence does not constitute discharge because Plaintiff could

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return to his position and Plaintiff, in fact, returned to work

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for Defendant.

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Therefore, a leave of

Accordingly, the Court grants summary judgment in

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Defendant’s favor as to Plaintiff’s second cause of action for

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violation of Section 203.

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3.

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Labor Code Overtime Claim

Defendant argues that Plaintiff’s Labor Code overtime claim

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is time barred with respect to any employment prior to May 23,

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2006.

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extends to February 25, 2006.2

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Plaintiff disagrees, arguing that his overtime claim

Both parties agree that Labor Code overtime claims are

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governed by a three-year statute of limitations.

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Def.’s mot. at

The Court assumes that Plaintiff’s claim that the overtime
claim extends to “February 25, 2005”, (Opp. at 2, 14) is a
typographical error because pursuant to Plaintiff’s argument and
taking into account the three-year statute of limitations and 826
days of equitable tolling, the claim would extend to 2006 not
2005.
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5; Opp. at 9.

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Plaintiff’s individual claims for 826 days during the pendency

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of Drenckhahn.

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disagree on when Plaintiff became a party to this action.

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They also agree that equitable tolling applies to

Opp. at 10; Reply at 2 n.4.

However, they

Plaintiff argues that he became a party when he lodged the

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FAC on May 31, 2011.

Defendant relies on several local rules of

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the Central District to argue that lodging does not constitute

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filing and therefore, Plaintiff did not become a party to this

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action until the SAC was filed on August 26, 2011, because the

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FAC was merely lodged and not filed.

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that the Central District court indicated “that the FAC was not

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filed and only ‘lodged with the Court on May 31, 2011.’”

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at 2.

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because the Central District court noted, “The Court treats the

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[FAC] as filed with the Court, even though it was only lodged by

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Plaintiffs.”

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Defendant’s Motion to Dismiss or Strike SAC, Doc. #26, at 2 n.1.

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Because the Central District court treated the FAC as filed

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despite only being lodged, the Court finds that the FAC was

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filed, and therefore, Plaintiff became a party to this action,

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on May 31, 2011.

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the Labor Code extends to February 25, 2006—which is 3 years and

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826 days prior to the filing of the FAC.

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Defendant also mentions

Reply

Defendant’s partial quotation, however, is misleading

Order Granting in Part and Denying in Part

Consequently, Plaintiff’s overtime claim under

Accordingly, the Court denies Defendant’s motion for partial

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summary judgment as to Plaintiff’s Labor Code overtime claim.

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Further, the Court need not address Plaintiff’s arguments on

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estoppel and waiver.

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4.

UCL Claim

Plaintiff also argues that his overtime claim, addressed

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above, is not time barred because the unpaid overtime is

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recoverable under his third cause of action, the UCL claim, which

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is subject to a four-year statute of limitations.

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Defendant does not disagree but argues that it is irrelevant

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because Defendant has not challenged the statute of limitations

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applicable to the UCL claim.

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holds that the statute of limitations for the UCL claim has no

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Reply at 6.

Opp. at 15.

Accordingly, the Court

effect on the Labor Code overtime claim.

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III. ORDER
For the reasons set forth above, the Court GRANTS in part

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and DENIES in part Defendant’s Motion for Summary Judgment.

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Court grants summary judgment for Defendant on Plaintiff’s second

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cause action and denies partial summary judgment for Defendant on

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Plaintiff’s first cause of action.

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IT IS SO ORDERED.

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Dated: August 14, 2013

The

____________________________
JOHN A. MENDEZ,
UNITED STATES DISTRICT JUDGE

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