Clark v. QG Printing II, LLC ( 2023 )

1 2 UNITED STATES DISTRICT COURT 3 EASTERN DISTRICT OF CALIFORNIA 4 5 Case No. 1:18-cv-00899-AWI-EPG 6 PAUL CLARK, individually, and on behalf of other members of the general public ORDER ON DEFENDANTS’ MOTION 7 similarly situated, FOR PARTIAL SUMMARY JUDGMENT 8 Plaintiffs, 9 v. 10 QG PRINTING II, LLC, a Connecticut limited liability company; 11 QUAD/GRAPHICS, INC., a Wisconsin corporation; and DOES 1 through 10, 12 inclusive, 13 Defendants. (Doc. No. 88) 14 15 16 Plaintiff Paul Clark is suing Defendants Quad/Graphics, Inc. (“QG”) and QG Printing II, 17 LLC (“QG Printing” and, together with QG, “Defendants”) for alleged violations of the California 18 Labor Code (“Labor Code”) at four commercial printing facilities in California, including claims 19 relating to meal periods, rest periods, off-the-clock work, business expenses and wage statements. 20 The operative complaint is the Second Amended Complaint (“SAC”), which was filed on 21 September 6, 2019. Doc. No. 29. 22 Defendants have brought a motion seeking summary judgment on certain claims and 23 issues. Doc. No. 88. The motion has been fully briefed and deemed suitable for decision without 24 oral argument pursuant to Local Rule 230(g). See Doc. No. 97. For the reasons that follow, 25 Defendants’ motion will be granted in part and denied in part. 26 BACKGROUND 27 QG is a Wisconsin corporation with commercial printing facilities throughout the United 1 States. Doc. No. 49 at 10:4-6.1 QG Printing is a Connecticut limited liability company and a QG 2 subsidiary. Id. at 10:9-11. QG Printing operates four facilities in California: Merced, West 3 Sacramento, Riverside – Jurupa Valley, and Riverside – Box Springs. Id. at 10:13-16. Plaintiff 4 was a non-exempt, hourly-paid press assistant in the press production area at QG Printing’s 5 Merced facility. Id. at 10:25-11:2. 6 Plaintiff filed this class action in Merced County Court on May 29, 2018, seeking to 7 represent an overarching class of several hundred non-exempt, hourly employees who worked in 8 QG Printing’s California facilities in the four-year period prior to the filing of the action. Doc. No. 9 1. Defendant removed the action to this judicial district on June 29, 2018, id., and it was assigned 10 to this Court on July 2, 2018. Doc. No. 7. 11 The SAC alleges claims for violations of: (i) Labor Code §§ 510 and 1198 (Unpaid 12 Overtime); (ii) Labor Code §§ 1182.12, 1194, 1197, 1197.1, and 1198 (Unpaid Minimum Wages); 13 (iii) Labor Code §§ 226.7, 512(a), and 1198 (Failure to Provide Meal Periods); (iv) Labor Code §§ 14 226.7 and 1198 (Failure to Provide Rest Periods); (v) Labor Code §§ 226(a), 1174(d), and 1198 15 (Non-Compliant Wage Statements and Failure to Maintain Payroll Records); (vi) Labor Code §§ 16 201, 202, and 203 (Wages Not Timely Paid Upon Termination); (vii) Labor Code § 2802 17 (Unreimbursed Business Expenses); (viii) Labor Code §§ 551, 552, and 558 (Failure to Provide 18 One Day of Rest in Seven); (ix) Labor Code §§ 2698, et seq. (Civil Penalties Under PAGA for 19 Violations of Labor Code); (x) California Business & Professions Code §§ 17200, et seq. 20 (Unlawful Business Practices); and (xi) California Business & Professions Code §§ 17200, et seq. 21 (Unfair Business Practices). Doc. No. 34. 22 On November 8, 2019, Plaintiff brought a motion pursuant to Rule 23(a) and Rule 23(b)(3) 23 of the Federal Rules of Civil Procedure, Doc. No. 46, to certify an overarching class comprising 24 approximately 1,200 members, see Doc. No. 54 at 13:20-26, and seven subclasses pegged to 25 alleged Labor Code violations, including a First Meal Break Subclass, a Second Meal Break 26 Subclass, a Rest Break Subclass, a Meal Break Waiver Subclass, an Off-the-Clock Work Subclass, 27 1 Unless otherwise indicated, page citations to documents on the Court’s electronic docket are to the page number in 1 a Business Expense Subclass and a Derivative Claims Subclass. Id. at 3:7-4:11. Certification was 2 granted with respect to the Meal Break Waiver Subclass and the Business Expense Subclass, and 3 denied as to the other five subclasses. See generally Doc. No. 54. 4 SUMMARY JUDGMENT FRAMEWORK 5 Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment is 6 appropriate when it is demonstrated that there exists no genuine issue as to any material fact and 7 that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); see Fortyune 8 v. Am. Multi-Cinema, Inc., 364 F.3d 1075, 1079–80 (9th Cir. 2004). 9 Rule 56(a)2 provides for “partial summary judgment” on individual claims and defenses, as 10 well as parts of claims or defenses. Fed.R.Civ.P. 56(a). A motion for partial summary judgment is 11 governed by the same standards as a motion for summary judgment. Washington Mut. Inc. v. 12 U.S., 636 F.3d 1207, 1216 (9th Cir. 2011); Jadwin v. County of Kern, 610 F.Supp.2d 1129, 1141 13 (E.D. Cal. 2009). 14 The moving party bears the burden of establishing the absence of a genuine issue of 15 material fact, generally by “citing to particular parts of materials in the record,” such as 16 depositions, interrogatory answers, declarations, and documents. Fed.R.Civ.P. 56(c); see also 17 Cline v. Indus. Maint. Eng’g & Contracting Co., 200 F.3d 1223, 1229 (9th Cir. 2000). If the 18 moving party does not meet this burden, “[s]ummary judgment may be resisted and must be 19 denied on no other grounds than that the movant has failed to meet its burden of demonstrating the 20 absence of triable issues.” Henry v. Gill Indus., 983 F.2d 943, 950 (9th Cir. 1993). 21 If the moving party does meet this burden, the burden then shifts to the opposing party to 22 show a genuine issue of material fact. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 23 U.S. 574, 586-87 (1986); see also Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Companies, 210 24 F.3d 1099, 1103 (9th Cir. 2000). “Only disputes over facts that might affect the outcome of the 25 suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. 26 Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 27 1 In response to a motion for summary judgment, the non-moving party “must do more than 2 simply show that there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. 3 at 586; Liberty Lobby, 477 U.S. at 247-48 (“the mere existence of some alleged factual dispute 4 between the parties will not defeat an otherwise properly supported motion for summary 5 judgment”). “Where the record taken as a whole could not lead a rational trier of fact to find for 6 the non-moving party, there is no ‘genuine issue for trial.’ ” Matsushita, 475 U.S. at 587; Liberty 7 Lobby, 477 U.S. at 248 (a “dispute about a material fact is ‘genuine’ ” where “the evidence is such 8 that a reasonable jury could return a verdict for the nonmoving party”). 9 “[A] party opposing a properly supported motion for summary judgment may not rest upon 10 the mere allegations or denials of his pleadings, but ... must set forth specific facts showing that 11 there is a genuine issue for trial.” Liberty Lobby, 477 U.S. at 248 (1986) (quoting First National 12 Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288–89 (1968)) (internal quotation marks 13 omitted). If the nonmoving party does not produce enough evidence to create a genuine issue of 14 material fact after the burden has shifted, the moving party is entitled to summary judgment. 15 Fed.R.Civ.P. 56(c); Fritz, 210 F.3d at 1103; Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). 16 DISCUSSION3 17 The Court will address each aspect of Defendants’ motion for summary judgment in turn. 18 19 3 Defendants request that the Court take judicial notice of records from certain state and federal court cases, as well as 20 California legislative history and information regarding the price of footwear on www.amazon.com and www.walmart.com. Doc. No. 88-3. The request is GRANTED as to court records and legislative history. Fed. R. Evid. 21 201(b); U.S. ex rel Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992). The Court cannot, however, take judicial notice as to the truth of the contents of commercial websites, see Woodall v. Walt 22 Disney Co., 2021 WL 2982305, at *3 (C.D. Cal. Apr. 14, 2021), and the price of footwear is irrelevant to the disposition of this motion. The request for judicial notice is therefore DENIED as to www.amazon.com and 23 www.walmart.com. 24 Further, Defendants object to certain evidence adduced by Plaintiff in opposition to this motion. Doc. Nos. 96-1. The objections do not bear on the disposition of any aspect of this motion and are therefore OVERRULED. 25 Finally, Plaintiff objects to certain evidence adduced by Defendant in support of this motion. Doc. No. 94-2. 26 Specifically, Plaintiff asserts that the statement that Plaintiff’s “last day of active work for QG Printing was December 6, 2017,” is vague, ambiguous, overly broad, confusing, lacking in foundation and unsupported by admissible 27 evidence. Id. at 94-2 at 2. The Court had no trouble deciphering the meaning of this simple statement. Further, it is uncontradicted and directly supported by pay statements and a sworn declaration from a declarant with relevant personal knowledge. The objection is therefore OVERRULED. Plaintiff’s other objections are OVERRULED on the 1 A. Meal Break Waiver Claim 2 The Third Cause of Action in the SAC alleges various meal period violations under 3 sections 226.7, 512(a), and 1198 of the Labor Code. Doc. No. 34 ¶¶ 72-83. Plaintiff asserts, in 4 particular, that “Plaintiff and class members did not sign valid meal period waivers on days that 5 they were entitled to meal periods,” id. ¶ 62, and that prospective meal break waivers signed “in 6 advance (as opposed to on a specific workday) … are invalid and unenforceable, because 7 Defendants’ obligation to provide employees with meal breaks does not arise until it has employed 8 them for a full five [] hours.” Id. ¶ 80. Defendants seek summary judgment on the Third Cause of 9 Action to the extent it is predicated on the contention that Defendants’ prospective meal break 10 waivers are unlawful. Doc. No. 88-1 at 15:12-14. 11 1. Applicable Law 12 Section 512(a) of the Labor Code states as follows: 13 An employer shall not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than 14 30 minutes, except that if the total work period per day of the employee is no more than six hours, the meal period may be waived by mutual consent of both the 15 employer and employee. An employer shall not employ an employee for a work period of more than 10 hours per day without providing the employee with a 16 second meal period of not less than 30 minutes, except that if the total hours worked is no more than 12 hours, the second meal period may be waived by mutual 17 consent of the employer and the employee only if the first meal period was not waived. 18 19 Cal. Lab. Code § 512(a). 20 Section 226.7 of the Labor Code states: 21 (a) No employer shall require any employee to work during any meal or rest period mandated by an applicable order of the Industrial Welfare Commission. 22 (b) If an employer fails to provide an employee a meal period or rest period in 23 accordance with an applicable order of the Industrial Welfare Commission, the employer shall pay the employee one additional hour of pay at the employee’s 24 regular rate of compensation for each work day that the meal or rest period is not provided. 25 26 Cal. Lab. Code § 226.7. 27 Industrial Welfare Commission (“IWC”) Wage Order No. 1-2001 states, in relevant part: 1 hwoourrks pweirtihoodu ot fa n mote aml opreer itohda no fs inxo (t6 l)e shso tuhrasn w 3i0ll mcoimnuptleest,e e txhcee dpat yth’sa tw wohrke nt hae meal period may be waived by mutual consent of the employer and employee. 2 (B) An employer may not employ an employee for a work period of more than ten 3 (10) hours per day without providing the employee with a second meal period of not less than 30 minutes, except that if the total hours worked is no more 4 than 12 hours, the second meal period may be waived by mutual consent of the employer and the employee only if the first meal period was not waived. 5 6 IWC Wage Order 1-2001, Cal. Code Regs. tit. 8, § 11010(11)(A)-(B). 7 Section 1198 of the Labor Code does not pertain to the issue at bar. 8 2. Discussion 9 Plaintiff argues that prospective meal break waivers such as those used by Defendants are 10 “invalid and unlawful” because the California Supreme Court found in Brinker Restaurant 11 Corporation v. Superior Court that a “meal break obligation is triggered” when an “employer 12 engages, suffers or permits anyone to work for a full five hours” and that once such an obligation 13 arises “an employer is put to a choice” (depending, in part, on circumstances) of “afford[ing] an 14 off-duty meal period,” “consent[ing] to a mutually agreed-upon waiver,” or “obtain[ing] written 15 agreement to an on-duty meal period.” 53 Cal.4th 1004, 1039 (2012); Doc. No. 94 at 12:23-13:7. 16 Plaintiff reads Brinker to mean that an employee cannot waive a given meal break until the 17 employer’s obligation to furnish that meal break has arisen. Id. at 10:6-8. 18 In Klune v. Ashley Furniture Industries, Inc., a court in the Central District of California 19 disposed of this argument in a footnote, finding that it “[did] not appear that the [Brinker] court 20 intended to load any temporal dimension” onto waiver of meal periods or “preclude prospective 21 waiver.” 2015 WL 1540906, at *6 (C.D. Cal. Apr. 3, 2015). In Castro v. PPG Industries, Inc., the 22 same court affirmed and elaborated on that finding, stating as follows: 23 Brinker, despite describing what an employer must do “after” a meal break obligation is triggered, does not specifically prohibit that the employer’s consent to 24 a waiver that will end a shift or preclude the employer from obtain[ing] a written agreement prior to a specific meal break. Absent controlling authority prohibiting 25 the type of voluntary meal break waiver at issue here, this Court does not endorse the unworkable meal break waiver policy Plaintiff seeks to impose that would 26 require an employer to obtain a separate waiver for each meal break an employee agrees to waive. 27 1 other grounds sub nom. Castro v. PPG Indus., Inc., 2022 WL 3681305 (9th Cir. Aug. 25, 2022). 2 The Court agrees with these views on Brinker and the legitimacy of prospective waiver. Further, 3 the Court notes that California law requires “mutual consent” to meal period waiver, such that 4 Plaintiff’s interpretation of Brinker would arguably compel an employee to take a meal break— 5 even if he or she preferred not to—if no authorized agent of the employer were available at the 6 300-minute mark (for first meal breaks) and the 600-minute mark (for second meal breaks) to 7 consent to the continuation of work. See Cal. Labor Code § 512(a) (stating that 30-minute meal 8 periods are required after five hours of work and after 10 hours of work unless “waived by mutual 9 consent”). That strikes the Court as unworkable, unfair to employees, and inconsistent with the 10 purpose of statutory and regulatory protections with respect to meal periods. See Madeira v. 11 Converse, Inc., 2022 WL 109365, at *6 (C.D. Cal. Jan. 11, 2022) (“join[ing] other sister courts in 12 declining to endorse [an] unworkable meal break waiver policy … that would require an employer 13 to obtain a separate waiver for each meal break an employee agrees to waive”) (quoted source and 14 internal quotation marks omitted).4 15 Plaintiff also argues that the waiver form is not enforceable against him because he did not 16 read it, Doc. No. 94-1 at 27:22-28:6, and because he thought he had to “sign” it to work at QG 17 Printing. Id. at 35:11-23. The waiver, however, contains a provision that states: “I acknowledge 18 that I have read the Waiver, understand it, and voluntarily agree to its provisions.” Doc. No. 88-1 19 at 12:13-14. Further, it is settled law that mere failure on the part of a signatory to read a document 20 does not negate the document’s contents or effect, see George v. Bekins Van & Storage Co., 33 21 Cal.2d 834, 848 (1949) (“immaterial… that neither [plaintiff] read the contract they accepted); 22 N.A.M.E.S. v. Singer, 90 Cal.App.3d 653, 656 (1979) (party bound by agreement even if he did 23 not read it), and Plaintiff sets forth no facts from which a jury could infer that he was pressured or 24 mislead in connection with the waiver. See Madeira, 2022 WL 109365 at *6. Similarly, the Court 25 26 4 Plaintiff cites an August 13, 2003 opinion letter from the California Division of Labor Standards Enforcement 27 (“DLSE”) stating that “the decision to forego [] a meal period must be made personally by each worker on a daily basis.” Doc. No. 94 at 15:5-13. That opinion, however, “was specifically limited to meal break waivers for agricultural workers and relied on a statutory provision applicable only to agricultural workers.” See Castro, 2021 WL 99724 at *5 1 notes that if Plaintiff had merely signed the document containing the waiver (as he supposedly felt 2 compelled to do) no waiver would have taken effect since waiver required the additional 3 affirmative step(s) of indicating via check mark(s) whether Plaintiff waived the first meal period, 4 the second meal period or both. See Doc. No. 88-1 at 12:7-15. 5 The waiver form at issue here, see Doc. No. 11:26-12:15, involves a voluntary, rescindable 6 waiver and otherwise appears to comport with applicable law. See Lewis v. Wendy’s Int’l, Inc, 7 2010 WL 11452279, at *7 (C.D. Cal. Mar. 24, 2010) (finding that form stating that meal periods 8 were waived “voluntarily” and that an employee could “rescind or reinitiate” the waiver 9 “complie[d] with the California Labor Code” (citing Cal. Labor Code § 512 (a)). The Court 10 therefore finds that Defendants are entitled to summary judgment on the Third Cause of Action to 11 the extent it is predicated on the theory that Defendant’s meal period waivers were unlawful and to 12 summary judgment on the Meal Break Waiver Subclass. See Doc. No. 88-1 at 15:11-18, 18:11-13. 13 B. Failure to Reimburse Business Expenses 14 Plaintiff’s Seventh Cause of Action alleges that “Defendants, on a company-wide basis, 15 mandated that Plaintiff and class members purchase special safety shoes such as steel-toed boots, 16 which they were required to wear while at work” and that “Plaintiff purchased steel-toed boots … 17 totaling approximately $202, but was not reimbursed for these costs.” Doc. No. 34 ¶ 108. 18 According to Plaintiff, “Defendants’ company-wide policy and/or practice of passing on their 19 operating costs to Plaintiff and class members by requiring that they purchase steel-toed boots[] 20 violates California Labor Code section 2802.” Id. ¶ 111. 21 Defendants contend that this claim fails as a matter of law because: “(1) employers are not 22 required to supply generic non-uniform apparel; (2) it is undisputed that Defendants provided 23 employees with $50 every year for safety shoes …; and (3) Defendants … are unaware of facts 24 suggesting that the purchase of shoes costing more than $50 is reasonably necessary.” Doc. No. 25 88-1 at 18:15-24. 26 1. Applicable Law 27 Section 2802(a) of the Labor Code provides that “[a]n employer shall indemnify his or her 1 discharge of his or her duties or of his or her obedience to the directions of the employer ….” Cal. 2 Labor Code § 2802(a). Section 2802(a) is intended to prevent employers from passing operating 3 expenses on to their employees. Cochran v. Schwan’s Home Service, Inc., 228 Cal.App.4th 1137, 4 1144 (2014). 5 2. Discussion 6 In Lemus v. Denny’s Inc., a Denny’s employee asserted that Denny’s (the restaurant chain) 7 was required to reimburse its employees for the cost of slip-resistant shoes as “necessary 8 expenditures” under section 2802(a). 617 F.App’x 701, 703 (9th Cir. 2015) (not selected for 9 publication). The Ninth Circuit affirmed summary judgment in Denny’s favor, finding that 10 plaintiff could not present “any authority that has applied section 2802 in a way that requires an 11 employer to pay for an employee’s non-uniform work clothing” and that it was impossible to do 12 so because under California law, “a restaurant employer must only pay for its employees’ work 13 clothing if the clothing is a ‘uniform’ or if the clothing qualifies as certain protective apparel 14 regulated by … OSHA.”5 Id. (citation omitted). 15 5 The California Occupational Safety and Health Act of 1973 (“OSHA”), California Labor Code §§ 6300, et seq., 16 contains certain provisions relating to protective apparel. 17 Section 6401 states: Every employer shall furnish and use safety devices and safeguards, and shall adopt and use 18 practices, means, methods, operations, and processes which are reasonably adequate to render such employment and place of employment safe and healthful. Every employer shall do every 19 other thing reasonably necessary to protect the life, safety, and health of employees. 20 Cal. Labor Code § 6401. Section 6403 states: 21 No employer shall fail or neglect to do any of the following: 22 (a) To provide and use safety devices and safeguards reasonably adequate to render the employment and place of employment safe. 23 (b) To adopt and use methods and processes reasonably adequate to render the employment and place of employment safe. 24 (c) To do every other thing reasonably necessary to protect the life, safety, and health of employees. Cal. Labor Code § 6403. 25 The SAC and Plaintiff’s opposition to Defendants’ motion for partial summary judgment make reference to 26 sections 6401 and 6403 of the Labor Code with the implication that they provide a basis for recovery, see, e.g. Doc. No. 94 at 17:17-24, but Plaintiff sets forth no facts showing that he has satisfied procedural requirements for bringing 27 claims under those statutes. See Cal. Labor Code § 2699.3(b). In fact, the motion for summary judgment effectively concedes that Plaintiff has not done so. See Doc. No. 94 at 17 n.4 (stating that “Plaintiff’s expense reimbursement claim was certified by this Court pursuant to Labor Code section 2802” and that consequently “Plaintiff need not rely 1 In Townley v. BJ’s Restaurants, Inc., similarly, plaintiff brought suit against BJ’s 2 Restaurants, alleging, inter alia, that BJ’s was in violation of section 2802 because it required— 3 but did not supply or provide reimbursement for—“ ‘slip resistant, black, close-toed shoes’ for 4 safety reasons.” 37 Cal.App.5th 179, 181 (2019). The trial court granted summary judgment in 5 BJ’s favor, finding that section 2802 did not require BJ’s to reimburse its hourly restaurant 6 employees for the cost of the required footwear. The California Court of Appeal followed the 7 reasoning of Lemus and affirmed, finding that “BJ’s [was] not required, as a matter of law, to 8 reimburse its employees for the cost of the slip-resistant shoes at issue … under section 2802” 9 because “[t]he cost of the shoes does not qualify as a ‘necessary expenditure’ within the meaning 10 of the statute.” Id. at 185. Further, the court noted that Plaintiff did not argue that the shoes “were 11 part of a uniform or were not usual and generally usable in the restaurant occupation” and that she 12 did not “cite any authority holding that an employer is required, under section 2802, to reimburse 13 an employee for basic, nonuniform wardrobe items.” Id. 14 The Court notes that Defendants’ Employee Handbook expressly required that employees 15 (including Plaintiff) “wear protective footwear.” Doc. No. 94 at 8:7-14. Plaintiff makes no 16 showing, however, that Defendants required footwear that was “part of a uniform” or that was not 17 “usual and generally usable” in other manufacturing contexts. The Court sees no material 18 distinction for section 2802 purposes between the slip-resistant shoes at issue in Lemus and 19 Townley and the safety-related footwear at issue in this case. Defendants are therefore entitled to 20 summary judgment on Plaintiff’s Seventh Cause of Action. In light of this ruling, the Court need 21 not address Defendants’ other arguments as to the Seventh Cause of Action. 22 C. PAGA Claim 23 To facilitate broader enforcement, the California Legislature enacted PAGA authorizing 24 “aggrieved employees” to pursue civil penalties for violations of the Labor Code on the state’s 25 behalf. Kim v. Reins Int’l California, Inc., 9 Cal.5th 73, 81 (2020) (quoting Cal. Labor Code § 26 2699 (a)) (internal quotation marks omitted); see also Magadia v. Wal-Mart Assocs., Inc., 999 27 grant summary judgment in Defendants’ favor to the extent the Seventh Cause of Action is predicated on section 6401 1 F.3d 668, 672 (9th Cir. 2021); Thomas v. Home Depot USA Inc., 527 F.Supp.2d 1003, 1006–07 2 (N.D. Cal. 2007). Of the civil penalties recovered, 75 percent goes to the Labor and Workforce 3 Development Agency (“LWDA”), leaving the remaining 25 percent for the “aggrieved 4 employees.” Reins, 9 Cal.5th at 81 (quoting Arias v. Superior Court, 46 Cal.4th 969, 980-981 5 (2009)) (internal quotation marks omitted). “Recovery of civil penalties under [PAGA] requires 6 proof of a Labor Code violation,” Arias, 46 Cal.4th at 987, and if judgment is granted on a given 7 Labor Code violation, the corresponding “portion of the PAGA claim necessarily fails.” Silva v. 8 See’s Candy Shops, Inc., 7 Cal.App.5th 235, 258-59 (2016), disapproved on other grounds in 9 Donohue v. AMN Servs., LLC, 11 Cal. 5th 58, 77 (2021). 10 Plaintiff’s Ninth Cause of Action is for civil penalties under PAGA, Doc. No. 34 ¶¶ 119- 11 27, based on: (i) failure to provide all required overtime pay; (ii) failure to compensate Plaintiff 12 and other aggrieved employees with at least minimum wages for all hours worked; (iii) failure to 13 provide meal and/or rest periods; (iv) failure to provide accurate and complete wage statements; 14 (v) failure to maintain payroll records; (vi) failure to pay all earned wages during employment; 15 (vii) failure to pay all earned wages upon termination; (viii) failure to reimburse Plaintiff and other 16 aggrieved employees for business expenses; (ix) failure to provide one day’s rest in seven; and (x) 17 failure to provide personal protective equipment. Doc. No. 34 at 30:22-31:22. 18 Defendants’ various arguments as to why partial summary judgment should be granted on 19 certain portions of Plaintiff’s PAGA claim are addressed below. See Doc. No. 88 at 23-31. 20 1. Lack of Underlying Labor Code Violation 21 Defendants first argue that they are entitled to summary judgment on the portions of the 22 PAGA claim based on “the reimbursements and meal period waiver theories.” Doc. No. 88-1 at 23 23:6-14. As set forth above, Plaintiff’s meal break waiver subclass fails as a matter of law because 24 Plaintiff cannot show that Defendants’ prospective meal break waivers are invalid. Further, 25 Plaintiff’s business expense subclass fails as a matter of law because Defendants were not 26 obligated to furnish or provide reimbursement for protective footwear under section 2802 and 27 Plaintiff fails to show that he satisfied the administrative prerequisites for claims under sections 1 of the PAGA claim. See Silva, 7 Cal.App.5th at 258-259.6 2 2. Timeliness 3 Defendants contend that Plaintiff’s PAGA claim is barred in its entirety by PAGA’s one- 4 year statute of limitations since the last day Plaintiff performed work for QG Printing was 5 December 6, 2017 “[y]et[] Plaintiff waited until December 7, 2018 to file his PAGA notice with 6 the LWDA.” Doc. No. 88-1 at 25:7-16. Plaintiff, for his part, argues that his claims continued to 7 accrue after he stopped performing work for QG Printing and that the one-year PAGA statute of 8 limitations did not start to run until his last day of employment, which was in April 2018. Doc. 9 No. 94 at 19:17-20:15. Further, Plaintiff contends that he has “several claims based on Labor Code 10 violations that were [not] committed against [him] until the very end of his employment,” 11 including: “violation of Labor Code section 204 for failure to pay all earned wages during 12 employment; violation of Labor Code sections 201, 202, and 203 for failure to pay all earned 13 wages upon termination; violation of Labor Code sections 226(a), 1198, and the applicable IWC 14 wage order for failure to provide accurate and complete wage statements to Plaintiff and other 15 aggrieved employees; and violations of Labor Code sections 1174(d), 1198, and the applicable 16 IWC wage order for failure to maintain payroll records.” Id. at 20:17-24. 17 a. Applicable Law 18 The statute of limitations on a PAGA claim is one year. See Cal. Civ. Proc. Code § 340; 19 Brown v. Ralphs Grocery Co., 28 Cal.App.5th 824, 839 (2019). “Generally, a statute of limitations 20 begins to run when a cause of action accrues, meaning when the cause of action is complete with 21 all of its elements.” Esparza v. Safeway, Inc., 36 Cal.App.5th 42, 59–60 (2019), as modified on 22 denial of reh’g (June 28, 2019) (citation omitted). In the context of PAGA claims, however, 23 violations of a continuing or recurring obligation give rise to “continuous accrual,” meaning that 24 “a cause of action accrues each time a wrongful act occurs, triggering a new limitations period.” 25 26 6 Further, the Court agrees with Defendants that Plaintiff cannot base a PAGA claim on a violation of California’s 27 Unfair Competition Law (“UCL”), California Business & Professions Code, §§ 17200, et seq., see Doc. No. 88-1 at 22:8-9, since a PAGA claim requires an underlying Labor Code violation. See Arias, 46 Cal.4th 987. The Ninth and Tenth Causes of Action in the SAC arise solely from alleged UCL violations. Doc. No. 34 ¶¶ 128-46, and thus do not 1 Id. (quoted source and internal quotation marks omitted). 2 An employee must furnish notice to the LWDA and his or her employer before filing a 3 PAGA action, Cal. Labor Code § 2699.3(a), and a PAGA claim is time-barred if this statutorily 4 required notice is not furnished in the manner specified in section 2699.3(a)(1)(A) of the Labor 5 Code within one year of the claim’s accrual. See Culley v. Lincare Inc., 236 F.Supp.3d 1184, 1192 6 (E.D. Cal. 2017) (finding that “all violations occurring over a year prior to [the date of LWDA 7 notice] would be time-barred”); Soto v. Castlerock Farming & Transport Inc., 2012 WL 1292519, 8 at *5–6 (E.D. Cal. Apr. 16, 2012) (Ishii, J.) (“[t]he courts have found that the LWDA notice must 9 be filed within one year of the violation”); Moreno v. Autozone, Inc., 2007 WL 1650942, at *4–5 10 (N.D. Cal. June 5, 2007) (finding that “[t]he passage of approximately 20 months between the 11 accrual of [plaintiff’s PAGA claim] and her first pursuit of administrative remedies [was] fatal to 12 the claim under the one-year limitations period” because “PAGA notice is a condition precedent to 13 filing suit”); see also Mazzei v. Regal Entm’t Grp., 2013 WL 6633079, at *4–5 (C.D. Cal. Dec. 14 13, 2013 (similar). 15 Finally, in federal court, a “[p]laintiff is unable to pursue a PAGA claim in a representative 16 capacity if his own claim is time-barred.” Liu v. Win Woo Trading, LLC, 2016 WL 3279466, at 17 *6 (N.D. Cal. June 15, 2016) (citing Thomas, 527 F.Supp.2d at 1008-1009 (“Plaintiff cannot go 18 forward in a representative capacity with his PAGA claims after the one-year statute of limitations 19 under CCP § 340(a) has run”)); see also Slay v. CVS Caremark Corp., 2015 WL 2081642, *10 20 (E.D. Cal. 2015) (a plaintiff cannot “pursue PAGA claims in a representative capacity when his 21 own claims are time-barred”).7 22 23 7 Plaintiff argues that under the state court case, Johnson v. Maxim Healthcare Servs., Inc., 66 Cal.App.5th 924 (2021), an employee whose individual claim is time-barred may pursue a representative claim under PAGA. Doc. No. 24 94 at 21:1-14. The Court, however, is unable to reconcile Johnson with the Ninth Circuit’s implicit finding in Magadia v. Wal-Mart Associates, Inc. that PAGA does not provide a sufficient substitute for the incentives implicit in 25 an individual cause of action to justify entrusting a plaintiff who has no individual cause of action with litigation on behalf of others. See Magadia, 999 F.3d at 676 (noting that PAGA “binds … nonparty employees from seeking 26 additional penalties under the statute” and finding that PAGA “conflicts with Article III’s core principle that each plaintiff ‘must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or 27 interests of third parties’ ” (quoting Warth v. Seldin, 422 U.S. 490, 499 (1975)). At bottom, a PAGA claim is more analogous, in the Court’s view, to a class action than a qui tam action when it comes to the question of whether a plaintiff with a time-barred claim can litigate in a representative capacity. Cf. Blackwell v. SkyWest Airlines, Inc., 1 b. Discussion 2 The Court agrees with Defendants that the statute of limitations on portions of Plaintiff’s 3 PAGA claim that are based on Labor Code violations that could only occur while Plaintiff was 4 performing work for QG Printing—as opposed to merely being in the employ of QG Printing— 5 must have started running on or before December 6, 2017. See Esparza, 36 Cal.App.5th at 59–60. 6 Since Plaintiff did not furnish PAGA notice to the LWDA until December 7, 2018, all such claims 7 are time-barred. See Culley, 236 F.Supp.3d at 1192. By the same token, however, the Court agrees 8 with Plaintiff that to the extent actionable Labor Code violations occurred after Plaintiff’s last day 9 of work, corresponding portions of Plaintiff’s PAGA claim are not barred by the one-year statute 10 of limitations applicable to PAGA claims. 11 Plaintiff’s First Cause of Action alleges that Defendants violated sections 510 and 1198 of 12 the Labor Code by failing to pay overtime, Doc. No. 34 ¶¶ 55-65; the Second Cause of Action 13 alleges that Defendants violated sections 1182.12, 1194, 1197, 1197.1 and 1198 of the Labor Code 14 by failing to “pay at least minimum wages to Plaintiff and [other employees] for all of the hours 15 they worked,” id. ¶¶ 66-71; and the Sixth Cause of Action alleges that Defendants violated 16 sections 201, 202 and 203 of the Labor Code by failing to pay “Plaintiff and [others] who are no 17 longer employed by Defendants their wages earned and unpaid at the time of discharge, or within 18 seventy-two (72) hours of their leaving Defendants’ employ.” Id. ¶¶ 101-105. According to the 19 record, Plaintiff earned regular wages and overtime wages (including double time wages) in the 20 pay period ending December 9, 2017. Doc. No. 88-4 at 45. Thus, it appears Plaintiff may have 21 suffered harm due to the Labor Code violations alleged in the First, Second and Sixth Causes of 22 Action8 within one year of December 7, 2018, and the Court cannot find on this motion that 23 24 thus could not serve as class representative on claim for inaccurate wage statement under Labor Code § 226(a)); see also Lindblom v. Santander Consumer USA, Inc., 2018 WL 573356, at *5 (E.D. Cal. Jan. 26, 2018) (“[T]his Court 25 and other courts in this Circuit routinely preclude potentially time-barred plaintiffs from serving as class representatives when they seek to represent members with timely claims.”)(collecting cases). The Court therefore 26 finds, in keeping with other federal courts that have addressed the issue, that a plaintiff whose PAGA claim as to a certain Labor Code violation is time-barred may not prosecute in federal court a representative PAGA claim based on 27 the same Labor Code violation. See Liu, 2016 WL 3279466 at *6. 8 In Magadia, the Ninth Circuit found that an employee must satisfy all three requirements of Article III standing as to 1 corresponding portions of the PAGA claim are time-barred. 2 Plaintiff’s Fifth Cause of Action alleges that Defendants violated sections 226(a), 1174(d) 3 and 1198 of the Labor Code by, inter alia, “fail[ing] to correctly list: gross wages earned; total 4 hours worked; net wages earned; all applicable hourly rates in effect during the pay period, 5 including overtime rates of pay; and the corresponding number of hours worked at each hourly 6 rate.” Doc. No. 34 ¶¶ 92-100. This cause of action specifically addresses wage statement 7 information required to determine whether wages have been calculated correctly, see Magadia, 8 999 F.3d at 679-80; cf. Castro, 2022 WL 3681305 at *1, and as noted above, it appears that 9 Plaintiff received at least one pay statement reflecting work and corresponding wages within the 10 year prior to December 7, 2018. The Court therefore cannot find on this motion that representative 11 PAGA claims predicated on the Labor Code violations alleged in the Fifth Cause of Action are 12 time-barred. 13 Plaintiff’s Fourth Cause of Action alleges that Defendants violated sections 226.7 and 14 1198 of the Labor Code by failing to provide required rest breaks, Doc. No. 34 ¶¶ 84-91, and the 15 Eighth Cause of Action alleges that Defendants violated sections 551, 552 and 558 of the Labor 16 Code by failing to provide one day’s rest in seven. Id. ¶¶ 113-18. As they pertain to Plaintiff, the 17 alleged deprivations must have occurred, if at all, while Plaintiff was performing work for 18 Defendants. Thus, corresponding portions of the representative PAGA claim are time-barred. 19 Plaintiff’s Third Cause of Action alleges that Defendants failed to provide meal periods in 20 violation of sections 226.7, 512(a) and 1198 of the Labor Code, Doc. 34 ¶¶ 72-83, and Plaintiffs’ 21 Seventh Cause of Action is brought under section 2802 of the Labor Code for failure to provide 22 reimbursement for protective footwear. Id. ¶¶ 106-12. As set forth above, Plaintiff’s Seventh 23 Cause of Action fails in its entirety because Defendants have no duty under section 2802 to 24 25 “concrete harm” for standing purposes. 999 F.3d at 679-80 (finding that employer’s failure to furnish pay rate information and pay-period dates in final paycheck, in violation of sections 226(a)(6) and 226(a)(9) of the Labor 26 Code, caused plaintiff “concrete harm” because it impeded plaintiff’s ability to test accuracy of employer’s wage calculations); see also Castro v. PPG Indus., Inc., 2022 WL 3681305, at *1 (9th Cir. Aug. 25, 2022) (finding that 27 plaintiff did not suffer the “concrete injury” required for Article III standing to seek civil penalties under PAGA where employer violated section 226(a)(8) of the Labor Code by listing the address of its corporate parent, as opposed to its own address, on pay statements). 1 provide reimbursement for protective footwear and because Plaintiff has not satisfied the 2 administrative prerequisites for claims under section 6401 and 6403. Similarly, the Court has 3 found that Plaintiff’s Third Cause of Action fails as a matter of law to the extent it is predicated on 4 the theory that Defendants’ prospective meal break waivers were invalid. Further, Plaintiff cannot 5 bring a PAGA claim for a meal break deprivation that might somehow fall outside the scope of his 6 meal break waiver because any such deprivation must have occurred, if at all, on or before 7 December 6, 2017, while Plaintiff was still performing work for Defendants. The Court therefore 8 finds that portions of the PAGA claim arising from Labor Code violations alleged in the Third 9 Cause of Action or the Seventh Cause of Action are time-barred. 10 Finally, no portion of the PAGA claim can be based on the Tenth Cause of Action or the 11 Eleventh Cause of Action because they allege UCL violations, not violations of the Labor Code. 12 See Arias, 46 Cal.4th 987. 13 3. Timeframe for Potential PAGA Recovery 14 Defendants contend that if some portion of the PAGA claim is deemed actionable, any 15 recovery must be limited to violations occurring in the period from and including January 1, 2018 16 through and including December 7, 2018. Doc. No. 88 at 26:18-28:8. The January 1, 2018 date is 17 predicated on the one-year statute of limitations applicable to PAGA claims; the date on which 18 notice was furnished to the LWDA; the waiting period under section 2699.3(a)(2)(A) of the Labor 19 Code; and the date on which Plaintiff first alleged the PAGA claim. Doc. No. 88-1 at 26:10-24. 20 The December 7, 2018 date is predicated on Defendants’ contention that PAGA does not allow 21 recovery of civil penalties for Labor Code violations that occur after notice is furnished to the 22 LWDA. Id. at 27:12-23. 23 Plaintiff argues that pleadings relate back to the date on which LWDA notice is furnished, 24 regardless of how much time elapses between the furnishing of LWDA notice and the filing of a 25 corresponding PAGA claim. Doc. No. 94 at 22:12-23:2. Further, Plaintiff argues that Defendants’ 26 contention that he cannot seek penalties for Labor Code violations that occurred after December 7, 27 2018 ignores case law to the contrary. Id. at 23:4-24:1. 1 a. Start Date 2 The Court essentially agrees with Defendants as to the earliest date for a PAGA claim. 3 As noted above, a plaintiff must provide the LWDA with notice—and an opportunity to 4 pursue civil penalties itself—before filing a PAGA claim. Cal. Labor Code § 2699.3(a). Further, 5 sections 2699.3(a)(2)(A)-(B) of the Labor Code provide that, unless the LWDA responds sooner, a 6 plaintiff must wait 65 days for a response from the LWDA before commencing a PAGA action. 7 Id. §§ 2699.3(a)(2)(A)-(B). Finally, section 2699.3(d) states that “[t]he periods specified in 8 [section 2699.3] are not counted as part of the time limited for the commencement of the civil 9 action to recover penalties ….” Id. § 2699.3(d). 10 Federal courts have read the foregoing provisions to mean that, once a PAGA claim 11 accrues, the applicable one-year statute of limitations runs until notice is furnished to the LWDA 12 (and employers) as specified in section 2699.3(a)(1)(A),9 and is then tolled under 2699.3(d) if the 13 LWDA does not respond. Singer v. Becton, Dickinson & Co., 2008 WL 2899825, at *6 (S.D. Cal. 14 July 25, 2008) (section 2699.3(d) provides “a mechanism to temporarily toll the statute of 15 limitations and therefore allows the timely commencement of claims for penalties under the Labor 16 Code brought more than one year after the cause of action accrues”); Moreno, 2007 WL 1650942 17 at *2 (“Section 2699.3(d) is clearly intended to toll the limitations period for bringing a civil 18 action to recover PAGA penalties while the plaintiff is pursuing administrative remedies.”); see 19 also Martinez v. Antique & Salvage Liquidators, Inc., 2011 WL 500029, at *8–9 (N.D. Cal. Feb. 20 8, 2011), modified in part, 2011 WL 766683 (N.D. Cal. Feb. 25, 2011) (finding that, in light of 21 section 2699.3(d), section 2699.3(c)(2)(A) is properly read to toll PAGA claims during a 33-day 22 cure period); Soto, 2012 WL 1292519 at *7 (finding the tolling analysis in Martinez to be 23 “sound”). 24 Plaintiff provided notice of the Labor Code violations underlying his prospective PAGA 25 26 9 See, e.g., Culley, 236 F.Supp.3d at 1192 (finding that “the earliest point an amended complaint could relate back to is the date notice was provided to the LWDA” and that “all violations occurring over a year prior to that date would be 27 time-barred”); Soto, 2012 WL 1292519 at *6 (“courts have found that the LWDA notice must be filed within one year of the violation”); Santiago v. Amdocs, Inc., 2011 WL 1303395, *5 (N.D. Cal. Apr.2, 2011) (“plaintiffs’ PAGA claim is time-barred because the complaint alleges that plaintiffs … last worked for defendant in December 2008 and April 1 claim to the LWDA and Defendants on December 7, 2018. Consequently, the statute of limitations 2 on Plaintiff’s PAGA claim stopped running on December 7, 2018 and was automatically tolled for 3 an additional 65 days under sections 2699.3(a)(2)(A) and 2699.3(d). Plaintiff commenced this 4 action (in state court) on May 29, 2018, Doc. No. 3, but asserted his PAGA claim for the first time 5 in the First Amended Complaint (“FAC”), which was filed in this Court on March 7, 2019. Doc. 6 No. 14. 7 Defendants state that Labor Code 2699.3(a)(2)(A) “allows for up to 65 days tolling while 8 awaiting a response from the LWDA,” Doc. No. 88-1 at 26:18-22, and therefore concludes that 9 January 1, 2018 is the earliest date for which Plaintiff can assert a PAGA claim when accounting 10 for the one-year statute of limitations and tolling occasioned by notice to the LWDA and the 11 subsequent waiting period. Id. at 26:18- 27:9. The Court agrees with Defendants that the 12 actionable period is the year prior to the initial filing of a PAGA claim, see Walker v. CorePower 13 Yoga, LLC, 2013 WL 2338675, *7 (S.D. Cal. May 28, 2013) (“Plaintiff’s PAGA recovery is 14 limited to the time period from one year prior to the filing of the complaint through Plaintiff’s 15 termination”); Gaasterland v. Ameriprise Financial Services Inc., 2016 WL 4917018, *3 (N.D. 16 Cal. Sept. 15, 2016) (stating that, for a case filed on May 13, 2016, the relevant time period under 17 the one-year PAGA statute of limitations began on May 13, 2015), plus any tolling. As indicated 18 above, however, the Court’s view is that section 2699.3 effectively provides for 66 days of tolling 19 since the statute of limitations stops running on the date notice if furnished, see Culley, 236 20 F.Supp.3d at 1192, and section 2699.3(a)(2)(A) requires an employee to give the LWDA 65 days 21 after the date of notice to undertake an investigation. Therefore, the Court would add one day to 22 the actionable period calculated by Defendants and finds that December 31, 2017 is the earliest 23 date for which Plaintiff can assert a PAGA claim. 24 b. Civil Penalties for Continuing Violations After LWDA Notice 25 In Magadia v. Wal-Mart Associates, Inc., a court in the Northern District of California 26 found, based on thorough analysis of case law, statutory text and legislative history, that “PAGA 27 penalties are not limited to redressing past violations of the California Labor Code for which the 1 continuing violations of the Labor Code even after the LWDA notice letter is sent.” Magadia v. 2 Wal-Mart Assocs., Inc., 384 F.Supp.3d 1058, 1109 (N.D. Cal. 2019), rev’d in part, vacated in part 3 on other grounds, 999 F.3d 668 (9th Cir. 2021). The court noted that defendant cited no authority 4 for the proposition that “additional letters to the LWDA” are necessary to pursue “continuing 5 violations” and concluded that “such a requirement would be contrary to the legislative intent 6 embodied in PAGA, which is to allow private actions to remedy Labor Code violations once the 7 LWDA is unable or unwilling to pursue an alleged violation.” Id. Similarly, the court found that 8 language in section 2699.3(a)(1)(A) about Labor Code provisions “alleged to have been violated” 9 merely reflected the fact that it would be impossible for an employee to provide notice to the 10 LWDA of violations that had not yet occurred and that “nothing in the [PAGA] statute precludes 11 [an] aggrieved employee from seeking redress for [] continuing violations.” Id. 12 This Court has previously allowed recovery of PAGA penalties for Labor Code violations 13 occurring after LWDA notice, see Schiller v. David’s Bridal, Inc., 2010 WL 2793650, at *7 (E.D. 14 Cal. July 14, 2010), and agrees with the Northern District’s reasoning in Magadia. The Court 15 therefore finds that Plaintiff is not barred from seeking civil penalties under PAGA for continuing 16 Labor Code violations that occurred after Plaintiff furnished notice to the LWDA on December 7, 17 2018. See Fleming v. Covidien Inc., 2011 WL 7563047, at *2 (C.D. Cal. Aug. 12, 2011) 18 (awarding PAGA penalties for a period of time after LWDA notice was furnished). 19 D. Rest Breaks 20 Plaintiff’s Fourth Cause of Action alleges rest break violations under sections 226.7 and 21 1198 of the Labor Code. Doc. No. 34 ¶¶ 84-91. Specifically, Plaintiff alleges that Defendants 22 failed to schedule rest breaks and “prevented Plaintiff and [others] from being relieved of all duty 23 in order to take compliant rest breaks.” Id. ¶ 88. 24 Defendants seek partial summary judgment as to Plaintiff’s individual claim for rest break 25 violations and the portion of the PAGA claim relating to rest break violations to the extent such 26 claims are based on “the theory that employees were not permitted to leave the premises during 27 rest breaks.” Doc. No. 88-1 at 32:2-4. Defendants contend that such a policy is not unlawful and 1 | leaving the premises.” Id. at 32:9-11. 2 Reviewing the record, the Court sees no indication that Plaintiff was himself adversely 3 | affected by—or even aware of—Defendants’ alleged policy barring employees from leaving QG 4 |Printing premises during a rest break. See Doc. No. 94-1 at 17:16-18:13; Doc. No. 94-3 at 44:5- 5 |45:8 & 47:4-49:9. Plaintiff has therefore failed to show the “injury in fact” required for either an 6 |individual claim or a PAGA claim based on such a policy, even assuming Defendants had such a 7 | policy and that such a policy is illegal. See Magadia, 999 F.3d at 673-74; DaimlerChrysler Corp. 8 |v. Cuno, 547 U.S. 332, 352 (2006) (noting Article HI standing is “claim- and relief-specific, such 9 | that a plaintiff must establish Article II] standing for each of her claims and for each form of relief 10 | sought”). Further, as stated above, the Court finds that the portion of Plaintiff's PAGA claim 11 |relating to rest break violations is time-barred because any rest break violations affecting Plaintiff 12 | must have occurred on or before December 6, 2017—during the period that Plaintiff performed 13 | work for Defendants. 14 Defendants are therefore entitled to partial summary judgment on Plaintiff's individual 15 Labor Code claim for rest break violations to the extent it is predicated on “the theory that 16 employees were not permitted to leave the premises during rest breaks.” And Defendants are 17 entitled to summary judgment on all portions of the PAGA claim predicated on the rest break 18 | violations alleged in the Fourth Cause of Action. 19 CONCLUSION 20 For the foregoing reasons, the Court will grant in part and deny in part Defendants’ motion 21 |for partial summary judgment. Doc. No. 88. 22 ORDER 23 Accordingly, IT IS HEREBY ORDERED that Defendants’ motion for partial summary 24 | judgment (Doc. No. 88) is GRANTED IN PART and DENIED IN PART as set forth above. 25 26 IT IS SO ORDERED. □□ 57 |Dated: _ April 7, 2023 7 Zz : Z Cb Led — SENIOR DISTRICT JUDGE 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27