Petersen v. AGT Crunch Acquisition, LLC et al

Filing 34

ORDER by Judge Claudia Wilken GRANTING IN PART AND DENYING IN PART DEFENDANTS CRUNCH POLK STREET, DANIEL E. ESPINO AND TYLER HANSENS 22 MOTION FOR SUMMARY JUDGMENT. (ndr, COURT STAFF) (Filed on 8/30/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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ERIK PETERSEN,

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United States District Court
For the Northern District of California

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No. C 10-02493 CW

Plaintiff,
v.
AGT CRUNCH ACQUISITION, LLC;
DANIEL E. ESPINO; AGT CRUNCH SAN
FRANCISCO, LLC; CRUNCH POLK
STREET, LLC; TYLER HANSEN,
Defendants.
________________________________/

ORDER GRANTING IN
PART AND DENYING
IN PART DEFENDANTS
CRUNCH POLK
STREET, DANIEL E.
ESPINO AND TYLER
HANSEN’S MOTION
FOR SUMMARY
JUDGMENT
(Docket No. 22)

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Defendants Crunch Polk Street (CPS), Daniel E. Espino and

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Tyler Hansen1 move for summary judgment on Plaintiff Erik

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Petersen’s claims against them.

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The motion was heard on August 25, 2011.

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Plaintiff opposes the motion.

Plaintiff asserts three sets of causes of action under the

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California Family Rights Act (CFRA) and the federal Family Medical

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Leave Act (FMLA): (1) failure to reinstate him to an equivalent

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position following protected leave, Cal. Gov. Code § 12945.2(a)

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and 29 U.S.C. § 2614(a)(1); (2) retaliation for taking protected

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leave, Cal. Gov. Code § 12945.2(l) and 29 U.S.C. § 2615(a)(1); and

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(3) retaliation for complaining about unlawful practices, Cal.

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Gov. Code § 12940(h) and 29 U.S.C. § 2615(a)(2).

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claims under California Government Code section 12940(a) for

He brings two

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Defendants AGT Crunch Acquisition, LLC, and AGT Crunch San
Francisco, LLC, are presently in bankruptcy proceedings and have
not appeared in this action. The Clerk has entered default
against them.

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“gender/family status discrimination,” alleging that he was not

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promoted and was subsequently terminated because he has a child.

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1AC at 12.

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asserts a claim for wrongful termination in violation of public

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policy.

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California Labor Code section 203.

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claims against CPS.

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only his claims under the FMLA.2

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Based on his alleged unlawful discharge, Plaintiff

Finally, Plaintiff seeks waiting-time penalties under
Plaintiff asserts all of his

Against Espino and Hansen, Plaintiff asserts

The Court grants Defendants’ motion as to Plaintiff’s two

United States District Court
For the Northern District of California

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claims under section 12490(a).

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not respond to Defendants’ argument that these claims fail as a

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matter of law.

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In his opposition, Plaintiff did

The Court also grants Defendants’ motion as to Plaintiff’s

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claim for waiting-time penalties under California Labor Code

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section 203.

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employee, the wages earned and unpaid at the time of discharge are

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due and payable immediately.”

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who fail to comply with this provision are subject to waiting-time

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penalties, as provided under section 203.

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letter to Plaintiff stated,

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California law holds, “If an employer discharges an

Cal. Lab. Code § 201(a).

Employers

A September 11, 2009

Your employment with Crunch has been terminated
effective Tuesday 09/15/09, however you are instructed
not to report to work in the meantime. Your last
paycheck containing all owed wages, commissions and
earned bonuses earned up to your separation date will be
available to be picked up . . . after noon on Tuesday
09/15/09.

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Civil actions under the FMLA may be brought against “any
person who acts, directly or indirectly, in the interest of an
employer to any of the employees of such employer.” 29 U.S.C.
§ 2611(4)(A)(ii)(I).
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Dretizer Decl., Ex. N.

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paid wages for the days he was scheduled to work between September

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11 and September 15.

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available on September 15.

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received the letter on September 11 and did not receive his final

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paycheck that day, he is entitled to waiting-time penalties.

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However, Plaintiff offers no authority to support his position.

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The effective date of Plaintiff’s dismissal was September 15,

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2009, and his paycheck was available on that date.

Plaintiff does not dispute that he was

Nor does he dispute that his paycheck was
Plaintiff contends that, because he

See Smith v.

United States District Court
For the Northern District of California

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Superior Court, 39 Cal. 4th 77, 84 (2006) (explaining that one

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meaning of “discharge,” in the context of section 201, “is ‘to end

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formally the service of’”).

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is not entitled to waiting-time penalties.

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On these undisputed facts, Plaintiff

Summary judgment is not warranted as to Plaintiff’s other

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claims.

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entitled to be reinstated to the “same or a comparable position

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upon the termination of the leave.”

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The FMLA affords a similar reinstatement right, entitling the

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employee to “be restored by the employer to the position of

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employment held by the employee when the leave commenced” or “an

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equivalent position with equivalent employment benefits, pay, and

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other terms and conditions of employment.”

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§ 2614(a)(1)(A)-(B).

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are considered to determine whether the employee was reinstated to

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an appropriate position.

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C.F.R. § 825.215(e).

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taking protected leave, Plaintiff was reinstated to a membership

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director position without managerial duties.

Employees who take protected leave under the CFRA are

Cal. Gov. Code § 12945.2(a).

29 U.S.C.

Under both statutes, an employee’s duties

Cal. Gov. Code § 12945.2(c)(4); 29

The parties do not dispute that, after

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However, there is a

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dispute of fact as to whether Plaintiff had managerial duties

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prior to going on protected leave.

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be denied as to Plaintiff’s claims for a violation of his

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reinstatement rights under the CFRA and the FMLA.

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Thus, Defendants’ motion must

Likewise, Defendants’ motion must be denied as to Plaintiff’s

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CFRA and FMLA claims for alleged retaliation for taking protected

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leave and for opposing practices prohibited under the respective

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statutes.

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business reasons for his discharge, Plaintiff adduces

United States District Court
For the Northern District of California

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Although Defendants present evidence of legitimate

circumstantial evidence of causation and pretext.
Finally, because there is a triable issue as to whether

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Plaintiff’s discharge violated the CFRA and the FMLA, summary

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judgment is not warranted on his claim for wrongful termination in

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violation of public policy to the extent it is based on these

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statutes.

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Plaintiff’s claims under California Government Code section

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12940(a), the Court summarily adjudicates that his wrongful

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termination claim cannot be based on them.

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However, because summary judgment is warranted as to

For the foregoing reasons, the Court GRANTS Defendants’

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motion in part and DENIES it in part.

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summary judgment is warranted on Plaintiff’s claims under section

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12940(a) and for waiting-time penalties.

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adjudicates that Plaintiff’s wrongful termination claim cannot be

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based on his claims under section 12940(a).

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respects, Defendants’ motion is DENIED.

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(Docket No. 22.)

In sum,

The Court also summarily

In all other

Plaintiff states that he intends to seek default judgment

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against Defendants AGT Crunch Acquisition and AGT Crunch San

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Francisco.

Plaintiff maintains that his claims against these
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Defendants arose after they entered bankruptcy and, as a result,

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are not subject to the automatic stay provisions under the

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Bankruptcy Code.

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judgment shall be filed only after Plaintiff’s claims against CPS,

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Espino and Hansen have been resolved.

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United States District Court
For the Northern District of California

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See 11 U.S.C. § 362.

The parties will be referred to a magistrate judge for a
settlement conference.
A final pretrial conference is scheduled for November 29,
2011 at 2:00 p.m.

A five-day jury trial is set to begin on

December 12, 2011 at 8:30 a.m.
IT IS SO ORDERED.

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Dated: 8/30/2011

CLAUDIA WILKEN
United States District Judge

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cc: EDL

Any motion for default

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