Jorge Quezada v. Con-Way Inc.

Filing 178

ORDER REQUIRING FURTHER BRIEFING ON MOTION FOR PARTIAL SUMMARY JUDGMENT. Signed by Judge Jeffrey S. White on 11/7/13. (jjoS, COURT STAFF) (Filed on 11/7/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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JORGE R. QUEZADA,

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Plaintiff,

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For the Northern District of California

United States District Court

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No. C 09-03670 JSW

v.

ORDER REQUIRING FURTHER
BRIEFING ON MOTION FOR
PARTIAL SUMMARY
JUDGMENT

CON-WAY FREIGHT, INC.,

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Defendant.
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Now before the Court is the motion for partial summary judgment filed by defendant

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Con-Way Freight, Inc. (“Defendant”). To state a claim for failure to provide accurate itemized

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wage statements in violation of California Labor Code § 226, “an employee must suffer injury

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as a result of a knowing and intentional failure by an employer to comply with the statute.”

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Price v. Starbucks Corp., 192 Cal. App. 4th 1136, 1142 (2011). Moreover, the mere failure to

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include all of the required information is insufficient to state a claim. Instead, an employee

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must demonstrate that he or she suffered an injury arising from the missing information. Id. at

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1142-43.

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Plaintiff Jorge R. Quezada testified in a deposition that he was not aware of any facts

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that he was damaged by the format of his wage statement. (Declaration of Richard R. Rahm,

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Ex. A (Deposition of Jorge R. Quezada) at 171:4-174:23.) To the extent Plaintiff seeks to alter

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this evidence through his declaration, to show that he was confused by the codes in the “driver

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detail” attached to his wage statement and that his wage statements failed to include all of his

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hours worked, his declaration contradicts his prior deposition testimony. The Court finds that

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this portion of her declaration is a sham affidavit and is thus stricken under Kennedy v. Allied

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Mutual Ins. Co., 952 F.2d 262, 266-67 (9th Cir. 1991). In the absence of this stricken

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testimony, Plaintiff fails to submit any evidence to show that he suffered any injury as a result

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of Defendant’s failure to provide accurate itemized wage statements.

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However, in January 2013, California Labor Code § 226(e) was amended to provide:

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(B) An employee is deemed to suffer injury for purposes of this subdivision if
the employer fails to provide accurate and complete information as required by
any one or more of items (1) to (9), inclusive, of subdivision (a) and the
employee cannot promptly and easily determine from the wage statement alone
one or more of the following:
(i) The amount of the gross wages or net wages paid to the employee during the
pay period or any of the other information required to be provided on the
itemized wage statement pursuant to items (2) to (4), inclusive, (6), and (9) of
subdivision (a).

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Cal. Labor Code § 226. Plaintiff does not address whether this amendment merely clarified the

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statute’s requirements or was a substantive change that does not apply retroactively. To the

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extent the amendment was merely a clarification of existing law, Plaintiff’s failure to submit

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evidence regarding his injury would not be material. In the interests of fairness, the Court will

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provide Plaintiff with an opportunity to address the impact of this statutory amendment. By no

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later than November 14, 2013, Plaintiff shall provide a supplemental opposition of no more than

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five pages to address this issue. Defendant may file a response of no more than five pages by

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no later than November 20, 2013.

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For the Northern District of California

United States District Court

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The Court HEREBY VACATES the hearing set for November 8, 2013 and will reset the
hearing at a later date, if necessary.
IT IS SO ORDERED.

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Dated: November 7, 2013
JEFFREY S. WHITE
UNITED STATES DISTRICT JUDGE

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