Silky Hood v. American Transportation Systems

(Spring Street Courthouse: Dept. 11) August 25, 2026 DEPARTMENT 11 LAW AND MOTION RULINGS

Tentative Ruling Re: Motion for Summary Adjudication Date: 8/25/26 Time: 1:45 pm Moving Party: American Transportation Systems ("ATS" or "Defendant") Opposing Party: Silky Hood ("Plaintiff") Department: 11 Judge: Bruce Iwasaki ________________________________________________________________________

Defendant's motion for summary adjudication is granted.

BACKGROUND

This is a putative class action. Plaintiff used to work for ATS as a bus driver. He alleges that ATS subjected him and other current and former employees to numerous wage-and-hour violations. Here, ATS moves to summarily adjudicate the second (failure to pay overtime wages), third (failure to provide meal and rest breaks), and fourth (failure to provide accurate itemized wage statements) causes of action.

APPLICABLE LAW

"A motion for summary adjudication asks the court to adjudicate the merits of a particular cause of action, affirmative defense, issue of duty or claim for damages, including a punitive damage request." (Weil & Brown, Cal. Practice Guide: Civ. Procedure Before Trial (The Rutter Group 2025) P. 10:1, emphasis in original.)

"Where [a] plaintiff (or cross-complainant) seeks summary [adjudication], the burden is to produce admissible evidence on each element of a 'cause of action' entitling plaintiff to judgment." (Id. at P. 10:233.)

"This means" a plaintiff "who bear[s] the burden of proof at trial by a preponderance of evidence must produce evidence that would require a reasonable trier of fact to find any underlying material fact more likely than not. " (Ibid., emphasis in original.)

"At that point, the burden shifts to defendant (or cross-defendant) 'to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.'" (Ibid.)

"A defendant (or cross-defendant) moving for summary [adjudication] must 'show' that either:

* one or more elements of the 'cause of action ... cannot be established '; OR

* there is a complete defense to that cause of action." (Id. at P. 10:240, emphasis in original.)

"The 'tried and true' way for defendants to meet their burden of proof on summary [adjudication] motions is to present affirmative evidence (declarations, etc.) negating, as a matter of law, an essential element of plaintiff's claim." (Id. at P. 10:241, emphasis in original.)

"A cause of action 'cannot be established' if the undisputed facts presented by defendant prove the contrary of plaintiff's allegations as a matter of law." (Id. at P. 10:241.10, emphasis in original.)

"The moving party's declarations and evidence will be strictly construed in determining whether they negate (disprove) an essential element of plaintiff's claim 'in order to resolve any evidentiary doubts or ambiguities in plaintiff's [opposing party's] favor.'" (Id. at P. 10:241.20.)

"If defendants fail to meet their initial burden, their motion must be denied; plaintiff need not make any showing at all." (Id. at P. 10:240.)

On the other hand, "[o]nce defendants meet [their] burden, the burden shifts to plaintiff to prove the existence of a triable issue of fact regarding that element of its cause of action or that defense." (Ibid., emphasis in original.)

"If plaintiff is unable to do so, defendants are entitled to judgment as a matter of law." (Ibid.)

DISCUSSION

Second Cause of Action (Failure to Pay Overtime Wages)

Defendant

Defendant contends: Plaintiff's second cause of action for failure to pay overtime fails in its entirety because Plaintiff was exempt from overtime requirements under the California Motor Carrier Exemptions. To the extent Plaintiff attempts to assert that he cannot be exempt under this exemption as he is a "local driver," this is not the applicable legal standard. Under the California Motor Carrier Exemption, intrastate drivers fall within the exemption if they drive a particular vehicle - which Plaintiff did drive.

California Wage Order No. 9, which regulates wages, hours and working conditions in the transportation industry, excludes from overtime requirements (i) employees whose hours are regulated by the United States [Department of Transportation ("DOT")] in 49 C.F.R. Sections 395.1-395.13 or (ii) intrastate drivers regulated by Subchapter 6.5, Sections 1200, et seq. of Title 13 of the California Code of Regulations. Cal. Code Regs., Tit. 8, Sec. 11090(3)(L)(1).

Because the operation of buses is regulated by Title 13 of the California Code of Regulations, subchapter 6.5, Section 1200, bus drivers are exempt from the overtime provisions of Labor Code section 510 and are not entitled to overtime payments even if they are solely intrastate drivers. See Cal. Code Regs. tit. 13, Sec. 1200; Cal. Veh. Code Sec. 15210; Cal. Veh. Code Sec. 15278; Cal. Veh. Code Sec. 34500(c) ("The department shall regulate the safe operation of the following vehicles: . . . Buses, schoolbuses, school pupil activity buses, youth buses, . . ."). Plaintiff was a bus driver and therefore exempt from overtime. (Motion, pp. 12-13.)

Defendant additionally contends Plaintiff "is exempt from overtime" because his "hours were regulated by the United States DOT[.]" (Id. at p. 13.)

Plaintiff

Plaintiff asserts: Plaintiff acknowledges that Wage Order No. 9, section 3(L)(2) excludes from Section 3 of the wage order "employees whose hours of service are regulated by ... Title 13 of the California Code of Regulations, subchapter 6.5, Section 1200 and the following sections, regulating hours of drivers," and that buses fall within Vehicle Code section 34500, subdivision (c). Plaintiff preserves and does not waive the contention that the exemption is an affirmative defense ATS must prove, narrowly construed, and limited to employees "plainly and unmistakably within [its] terms." ([Ramirez v. Yosemite Water Co., Inc. (1999) 20 Cal.4th 785, 794-795]; [Nordquist v. McGraw-Hill Broadcasting Co. (1995) 32 Cal.App.4th 555, 562].)

To the extent ATS rests the exemption on federal DOT jurisdiction (Wage Order No. 9, Sec. 3(L)(1)), part IV.A defeats that ground. Independently, adjudication must be denied because it would not dispose of the entire second cause of action. (Code Civ. Proc., Sec. 437c, subd. (f)(1).) ATS describes that cause of action as resting on Labor Code sections 200, 223, 226 and 1198. The complaint pleads more. Paragraph 36 invokes "IWC Wage Order No. 9, California Labor Code sections 200, 223, 226, 510, 1194, and 1198"; paragraph 41 invokes section 1194, subdivision (a); and paragraph 42 seeks penalties under section 558.

More to the point, paragraph 38 alleges that ATS "improperly failed to pay overtime wages, or any wages at all," to Plaintiff and the class "for time spent working at Defendant's business." Section 3(L) exempts covered employees from "the provisions of this section ", Section 3, Hours and Days of Work. It does not reach Section 4 of the wage order, and it does not excuse an employer from paying for hours actually worked. (Lab. Code, Sec.Sec. 1194, 1197.) A claim that ATS paid no wages for time worked is not an overtime claim, is not answered by the Title 13 exemption, and is not addressed anywhere in ATS's motion. Adjudication of the cause of action as a whole is therefore unavailable. (Opposition, pp. 21-22, emphasis in original.)

Reply

In reply, Defendant states:

* The opposition exceeds the permitted page limit, so the Court should refuse to consider it. (See Reply, pp. 1-2.) [1]

* Plaintiff admits that "[t]itle 13 of the California Code of Regulations exempts bus drivers from California's overtime requirements." (Id. at p. 2.)

* "Plaintiff's procedural objection fails": Plaintiff raises only two arguments in opposition to summary adjudication of his overtime claim, neither of which has merit. First, he argues that adjudication must dispose of an "entire" cause of action, and that the second cause of action cannot be adjudicated because it encompasses unpaid wages beyond overtime. This is wrong. The second cause of action is titled "Failure to Pay Overtime Wages." As listed on the caption of the operative Complaint, the statutory citations (Lab.

Code, Sec.Sec. 200, 223, 226, 1198) concern overtime. Plaintiff's assertion that Paragraph 38's reference to "any wages at all" expands the claim beyond overtime is an attempt to turn surplusage from the first cause of action for failure to pay wages due and owing into a triable issue. (Opp. at 22:11-18.) However, the Opposition itself confirms that a claim for "any wages" can only be addressed by Plaintiff's first cause of action, which is not at issue here: "A claim that ATS paid no wages for time worked is not an overtime claim, is not answered by the Title 13 exemption, and is not addressed anywhere in ATS's motion." [Opp. at 22:15-17 (emphasis added).]

Precisely. If it is not an overtime claim, it does not belong in the second cause of action. (Id. at pp. 2-3, emphasis in original, capitalizing and underlining in title deleted.)

* "Plaintiff's discovery request likewise fails": Plaintiff argues he needs discovery on "which vehicles Hood in fact operated and their regulatory classification." [Opp., 23:27-24:3.] This is meritless. There is no dispute about the vehicles Hood drove. Hood himself testified that every bus he drove was a large bus capable of holding 50 or more passengers, and he never drove small buses. [Mills Decl., P.P. 2-3, Ex. C (Hood Depo., 31:15-32:15).] A "bus" is defined as every motor vehicle defined in Vehicle Code Sections 233, and 545(a)(11), and every school bus, school pupil activity bus, youth bus, and farm labor bus. 13 C.C.R.

Sec. 1201. Further, based on Plaintiff's testimony, he was driving a Type 1 bus which is any bus "Designed for carrying more than 16 passengers and the driver." Id. Accordingly, the exemption applies and there is no dispute of material fact on this claim. No additional discovery can change the statutory text. (Id. at p. 3, capitalizing and underlining in title deleted.)

* "The overtime exemption theories are pled in the alternative": Plaintiff argues ATS cannot simultaneously claim the Title 13 overtime exemption (which applies to intrastate drivers) and FMCSA preemption (which applies to drivers subject to federal HOS rules) both apply. This argument misunderstands both alternative pleading and the regulatory framework. A defendant is entitled to plead in the alternative. ATS alleges that Plaintiff is an interstate driver regulated by the DOT and thus he is exempt from overtime on that basis. However, even if the court were to determine that Plaintiff is not an interstate driver regulated by the DOT, he is still exempt from overtime as an intrastate driver under Title 13. (Ibid., capitalizing and underlining in title deleted.)

Analysis

The motion for summary adjudication is granted. In addition to the preemption analysis discussed infra, it is undisputed that Plaintiff was a bus driver and that bus drivers are exempt from overtime-pay requirements under California law. (See Opposition, p. 21.) Plaintiff's argument - that Defendant's position fails to dispose of the entire cause of action (see id. at p. 22) - does not change the result. The second cause of action is explicitly for failure to pay overtime. (See Complaint, p. 10.) By Plaintiff's own characterization, the words "any wages at all" in paragraph 38 connote "[a] claim that ATS paid no wages for time worked[,]" which "is not an overtime claim[.]" (Opposition, p. 22, italicizing in original, underlining added; see also Reply, pp. 2-3.) In short, Plaintiff's reliance on paragraph 38 is inadequate to defeat summary adjudication.

Plaintiff's discovery request fails as well. Plaintiff says he "has had no opportunity to take discovery . . . on which vehicles [he] in fact operated and their regulatory classification[.]" (Opposition, pp. 23-24.) Yet Plaintiff testified that he never drove a small bus and that every bus he did drive could "easily" carry 50 passengers. (Mills Decl., Ex. C, pp. 31-32.) As Defendant shows in reply, the overtime exemption applies to such busses. (See Reply, p. 3.)

Third Cause of Action (Failure to Provide Uninterrupted Meal and Rest Breaks)

Defendant

Defendant claims: The Federal Motor Carrier Safety Administration ("FMCSA") has made a binding determination that California's meal and rest break rules, as applied to passenger-carrying commercial vehicle drivers, are preempted by FMCSA hours of service regulations. Specifically, on or about January 13, 2020, the FMCSA, an agency of the United States [DOT], published an Order concluding that the California meal and rest break rules, contained in California Labor Code Sec.Sec. 226.7 and 512 and sections 11 and 12 of IWC Wage Order 9-2001, as applied to passenger-carrying commercial vehicle drivers, are preempted by the FMCSA's hours of service regulations (49 U.S.C. 31141(c)). California's Meal and Rest Break Rules for Commercial Motor Vehicle Drivers; Petition for Determination of Preemption ("FMCSA Preemption Order"), Docket No. FMCSA-2019-0048 (Jan. 13, 2020).

The ruling specifically provides that "[e]ffective the date of this decision, California may no longer enforce the MRB rules [meaning meal and rest break rules] with respect to drivers of passenger-carrying CMVs subject to FMCSA's HOS rules." The FMCSA Preemption Order was promulgated under 49 U.S.C. Sec. 31141. See id. Under Section 31141, the Secretary of Transportation is authorized to make a determination that state laws meeting certain criteria are preempted and may not be enforced. 49 U.S.C.

Sec. 31141. The Secretary of Transportation's authority to issue such determinations has been delegated to the FMCSA Administrator. See 49 C.F.R. Sec. 1.87(f). A petition for judicial review of an FMSCSA preemption determination may only be filed in a circuit court. See 49 U.S.C. Sec. 31141(f). Therefore, the Court here is without authority to determine the validity of the FMSCA Preemption Order and must follow such order unless and until the Ninth Circuit determines otherwise. Accordingly, the Court may not enforce the preempted meal period and rest break provisions and must grant summary adjudication of such claims.

See 49 U.S.C. Sec. 31141(a) ("A State may not enforce a State law or regulation on commercial motor vehicle safety that the Secretary of Transportation decides under this section may not be enforced."); see also Ayala v. U.S Xpress Enterprises, Inc., No. 5:16-cv-00137-GW-KK, 2019 WL 1986760, at *3 (C.D. Cal. May 2, 2019) (granting defendant's motion for partial summary judgment because the matter is preempted by the FMCSA and should be reviewed by the Circuit Court); Henry v. Central Freight Lines, Inc., No. 2:16-cv-00280-JAM-EFB, 2019 WL 2465330, at *4 (E.D.

Cal. June 13, 2019) (granting defendant's motion for summary judgment as to the meal and rest break claims finding they are preempted by the FMCSA).

To meet such requirement, Plaintiff did not need to actually cross state lines. Rather, drivers who operate entirely within one state may still be considered to be engaged in interstate commerce if either their work is part of a continuous interstate journey or they could reasonably be expected to drive interstate routes as part of their regular job duties. With respect to the later, in the DOT's official interpretation of the Federal Highway Administration's jurisdiction to regulate drivers in interstate commerce, the DOT concluded that it would have jurisdiction over an individual driver if "[the driver is] call on, or is subject to being called on, to drive in interstate commerce as part of the driver's regular employee ... [or] even if the driver has not personally driven in interstate commerce if, because of company policy and activity, the driver could reasonably be expected to do interstate driving."

FHWA, DOT Notice of Interpretation, 46 Fed.Reg. at 87,903 (1981); see also Morris v. McComb, 332 U.S. 422 (1947); Burlaka v. Contract Transport Services LLC, 971 F.3d 718 (7th Cir. 2020); and the case you cited Bell v. H.F. Cox, Inc., 209 Cal.App.4th 64, 78 (2012) (providing "Even drivers who do not transport goods in interstate commerce are subject to the jurisdiction of the Secretary of Transportation if, as part of their regular duties, they reasonably could be expected to be called on to make interstate runs").

The interpretation further provides that, "[i]f the carrier does interstate work or advertises for such work and assigs drivers randomly to that driving, all the drivers are under the jurisdiction of 49 U.S.C. 304." Id. Moreover, as set forth above, many of ATS's routes are airport pickups and drop offs or interstate travel - which clearly meet the requirement of being part of a continuous interstate journey. Intrastate legs of continuous interstate journey retain their interstate character. See Walling v. Jacksonville Paper Co., 317 U.S. 564 (1943); Ash v. Flowers Foods, 2024 WL 112233 (5th Cir. 2024); and the case you cited Bell, 209 Cal.App.4th at 77 (providing "Intrastate deliveries of goods are considered to be part of interstate commerce if the deliveries are merely a continuation of an interstate journey.").

As an ATS driver, pursuant to ATS policy and activity, Plaintiff could reasonably be expected to engage in such interstate driving. Further, ATS maintained DOT operating authority for interstate travel, the buses Plaintiff drove were DOTcertified and capable of interstate operations, Plaintiff was required to have a commercial driver's license, with a certification for interstate driving, Plaintiff was required by ATS to keep a DOT driver's log and comply with the DOT Hours of Service Rules, Plaintiff's job duties did not limit assignments to intrastate routes, Plaintiff was frequently offered interstate assignments, and other similarly situated drivers were routinely assigned to interstate trips (including those that are legs of a continuous interstate journey). [Velasquez Decl., P.P. 3-18.]

All of this establishes a "reasonable expectation" that Plaintiff could be called upon to drive interstate routes. As a result of all of this, the interstate commerce requirement is met. See FHWA, DOT Notice of Interpretation, 46 Fed.Reg. at 87,903; see also Morris v. McComb, 332 U.S. 422, 431-433 (1947); Gonzalez v. Smith International, Inc., 899 F.Supp.2d 622, 636 (S.D. Tex. 2010) (holding plaintiffs fell under Motor Carrier Exception to FLSA where defendant is a private motor carrier engaged in interstate commerce and plaintiffs were subject to being called to drive in interstate commerce when defendant needed them to do so even when one never drove in interstate commerce and the other did only three times). (Motion, pp. 13-16, footnote omitted.)

Plaintiff

Plaintiff argues:

* The burden is unshifted because Defendant's "entire showing on how interstate work was distributed rests on a declarant's characterization of records that ATS holds and did not place before the Court." (Opposition, p. 12 [discussing Garibay v. Hemmat (2008) 161 Cal.App.4 th 735]; see also id. at p. 13.)

* "The preemption order reaches only drivers subject to FMCSA's hours-of-service rules"

On January 13, 2020, FMCSA determined that California's meal and rest break rules are preempted "as applied to passenger-carrying commercial motor vehicle drivers subject to FMCSA's hours of service regulations." (85 Fed. Reg. 3,469, 3,469 (Jan. 21, 2020), Docket No. FMCSA-2019-0048, emphasis added.) The Ninth Circuit denied California's petition for review. (People of the State of California ex rel. Becerra v. Federal Motor Carrier Safety Admin. (9th Cir. 2026) 177 F.4th 1032.) Plaintiff does not ask the Court to revisit that order.

The Ninth Circuit described the order in the agency's own limited terms, recounting that FMCSA issued its determination "as applied to drivers of passenger-carrying commercial motor vehicles subject to the federal HOS regulations ", a qualifier the opinion repeats each time it states the holding. (Id., 177 F.4th 1032.) Neither the order nor the opinion decides which drivers fall within that class. Espinoza v. Hepta Run, Inc. (2022) 74 Cal.App.5th 44 does not supply the answer either, for two reasons.

First, Espinoza construed a different order: the FMCSA's December 21, 2018 determination as to drivers of property-carrying commercial motor vehicles (83 Fed. Reg. 67,470), not the January 13, 2020 passenger-carrier order that governs Hood. Second, coverage was undisputed there; the court addressed only whether the short-haul exception removed an admittedly covered driver from the order's reach. . . . (Opposition, pp. 13-14, emphasis in original, capitalizing and underlining in title deleted.)

* "FMCSA's interpretation requires concrete evidence, not eligibility": ATS relies on the Department of Transportation's 1981 notice of interpretation. (MPA at 14:18-25 [cited as "46 Fed.Reg. at 87,903"; the correct citation is 46 Fed. Reg. 37,902, 37,903 (July 23, 1981)].) Read in full, it defeats the motion: "The carrier's involvement in interstate commerce must be established by some concrete evidence such as an actual trip in interstate commerce or proof, in the case of a 'for hire' carrier, that interstate business had been solicited.

If jurisdiction is claimed over a driver who has not driven in interstate commerce, evidence must be presented that the carrier has engaged in interstate commerce and that the driver could reasonably have been expected to make one of the carrier's interstate runs. Satisfactory evidence would be statements from drivers and carriers, and any employment agreements." (46 Fed. Reg. at p. 37,903.) Plaintiff does not dispute that ATS itself operates in interstate commerce; the 1981 notice treats solicitation of interstate business as concrete evidence of that carrier-level fact, and ATS plainly satisfies it.

The contested question is the second one the interpretation poses, and it is about the driver: where jurisdiction is claimed over a driver who has not driven in interstate commerce, "evidence must be presented ... that the driver could reasonably have been expected to make one of the carrier's interstate runs." (46 Fed. Reg. at p. 37,903.) FMCSA carries that requirement into its current guidance for passenger carriers. (49 C.F.R. Sec. 390.3, Regulatory Guidance, Question 24; 49 C.F.R. pt. 390, app.

A [87 Fed. Reg. 68,372 (Nov. 15, 2022)].) Carrierlevel interstate operation is a necessary condition, not a sufficient one. Were it sufficient, every driver of every interstate carrier would be covered, the proposition Reich and Garcia both reject. The interpretation also carries a temporal limit, which Plaintiff quotes in full: "Evidence of driving in interstate commerce or being subject to being used in interstate commerce should be accepted as proof that the driver is subject to [the hours-of-service requirements] for a 4-month period from the date of the proof." (46 Fed.

Reg. at p. 37,903; 49 C.F.R. pt. 390, app. A [FMCSA reaffirming the four-month period in 2022].) ATS will point to the second branch. It does not help ATS, for two reasons. First, that branch does not stand alone: it states the consequence of the showing required by the preceding paragraph, which demands evidence that a driver who has not driven interstate "could reasonably have been expected to make one of the carrier's interstate runs." Read otherwise it would swallow the requirement it follows.

Second, it is expressly dated, jurisdiction runs "for a 4-month period from the date of the proof." ATS identifies no date on which any such proof was made as to Hood, no interstate run, no assignment, no communication, no record. The clock it needs never starts. Courts apply this to require more than theoretical availability. Jurisdiction "extends only to drivers who reasonably could be expected to make one of the carrier's interstate runs, and that means more than a remote possibility." (Garcia v.

Pace Suburban Bus Service (N.D.Ill. 1996) 955 F.Supp. 75, 77, citing Reich, supra, 33 F.3d at p. 1156.) In Reich the Ninth Circuit reversed summary judgment for the carrier, holding that an "arguably reasonable expectation of engaging in interstate commerce" did not satisfy the interpretation. (33 F.3d at p. 1157.) (Id. at pp. 14-15, emphasis in original, capitalizing and underlining in title deleted.)

* "ATS concedes a voluntary bid system, the opposite of the indiscriminate assignment that Morris and Bell require": In Morris, interstate hauls were 3.65 percent of trips and many drivers made none, yet jurisdiction attached because the work was "shared indiscriminately by the drivers" and formed "a natural, integral and apparently inseparable part" of the service. (332 U.S. at p. 433.) FMCSA describes the case the same way: the drivers "were randomly assigned to handle interstate trips." (49 C.F.R. pt. 390, app.

A.) Bell turned on the same distinction, and on a full evidentiary record. The exemption there was sustained after a bench trial, on findings reviewed for substantial evidence. The trial court expressly rejected the plaintiffs' contention that interstate hauls were assigned on a volunteer basis, finding that the carrier "sometimes asked for volunteers and sometimes assigned drivers who did not volunteer," that "some drivers had been randomly assigned," and that the carrier "made it clear that no driver was immune from being assigned to drive an interstate route." (Id. at p. 87.) . . .

Velasquez concedes that routes were posted for drivers to pick up "if they wanted additional routes," on a "bid-style basis . . . for all qualified drivers to voluntarily review and claim." (Velasquez Decl. P. 11.) . . . ATS identifies no instance of any driver assigned an unclaimed interstate route, no policy stating drivers could be compelled, and no discipline for declining. Hood declares that no one at ATS ever told him he had to be available to drive out-of-state trips, that no one told him such work was part of his regular job, and that he was never disciplined or spoken to for not claiming an out-of-state route. (Hood Decl.

P. 20.) A trier of fact could readily find that ATS distributed interstate work by voluntary claim rather than indiscriminate assignment. (Id. at pp. 15-16, emphasis in original, capitalizing and underlining in title deleted.)

* "The Velasquez declaration has precisely the gaps courts have found fatal" In Garcia, a bus case, the court found the carrier's affidavits "not as revealing as they could be": "We are provided no information about how frequently [the] drivers were, during the relevant period, called upon to drive for the interstate services or from how large a pool of drivers those temporary assignments were made. We do not know whether the four-month standard in the notice of interpretation is met." (955 F.Supp. at pp. 77-78.)

On that record the court "would be inclined to conclude" the carrier had not demonstrated a reasonable expectation. (Ibid.) The exemption survived only because the carrier came forward with more: drivers were routinely pulled off fixed routes and assigned to interstate charters, and federal auditors had determined all its drivers were subject to the safety regulations. (Id. at p. 78.) ATS offers none of that. Its declaration does not state how many interstate routes were posted during Hood's employment, how many drivers competed for them, what share of ATS's volume was interstate, when the last interstate run occurred, or whether any regulator has determined that ATS's Long Beach drivers are subject to the FMCSRs. "Consistently available" (P. 9), "many" (P. 11) and "[v]irtually daily" (P. 11) are characterizations unsupported by a single posting, dispatch record or assignment log, all of which ATS possesses.

A declaration must "set forth admissible evidence" and "show affirmatively that the affiant is competent to testify to the matters stated." (Code Civ. Proc., Sec. 437c, subd. (d).) Paragraph 18 fails that test outright: it asserts why a particular driver did not take particular routes, a matter as to which no basis of knowledge is stated anywhere in the declaration. (See Plaintiff's Evidentiary Objections Nos. 2-5, 9.) Plaintiff states plainly what ATS will otherwise say for him. In each authority ATS invokes the carrier prevailed, but only after producing the proof ATS has withheld.

Morris turned on interstate work "shared indiscriminately by the drivers." Bell turned on findings made after a bench trial that the carrier assigned drivers who did not volunteer and that no driver was immune. Garcia granted judgment only after the carrier showed that drivers were routinely pulled off fixed routes and that federal auditors had determined all its drivers were covered, the court having said that on the record as it first stood it "would be inclined to conclude" otherwise. And Reich accepted that a first-in, first-out system made every driver reasonably expectable to drive interstate, yet still reversed summary judgment for the carrier.

That ATS can point to no case holding a driver outside the exemption on facts like Hood's is beside the point: ATS is the moving party, and the question is whether this carrier has produced evidence that would require a finding in its favor. (Aguilar, supra, 25 Cal.4th at p. 851.) On the central question, how often interstate work was posted, to whom, and on what terms, it has produced a declarant's characterizations, a screenshot predating Hood's hire, and the surmise that festival passengers "may have come from out of state."

That supplies an independent ground for denial. Subdivision (e) permits the Court in its discretion to deny summary judgment "if the only proof of a material fact ... is an affidavit or declaration made by an individual who was the sole witness to that fact." (Code Civ. Proc., Sec. 437c, subd. (e).) The Velasquez declaration is the only proof ATS offers for Undisputed Material Facts 1, 2, 6, 7, 17-21, 31, 32, 35-46, 50-56, 59, 60 and 62, every fact bearing on how interstate work was distributed.

No document corroborates it, no other witness supports it, and Mr. Velasquez has never been deposed. (Id. at pp. 16-18, emphasis in original, capitalizing and underlining in title deleted.)

* "The continuous-journey theories fail on this record": FlyAway. Hood testified he was never offered FlyAway routes: "Q: You were offered the Flyaways to the airport on occasion? A: Nope." (Hood Depo. 42:8-10.) He declares the same, and that he never drove one and none was ever assigned to him. (Hood Decl. P. 14.) Whatever ATS's FlyAway operations are in general, a route Hood never drove and was never offered cannot establish his engagement in interstate commerce. The theory also fails on ATS's own description of the service.

FMCSA's passenger-carrier guidance turns on prearrangement: intrastate ground transportation is part of a continuous interstate movement only where it is prearranged and "secured by an advance guarantee demonstrating an obligation by the passenger to take the service, and by the motor carrier to provide the service." (49 C.F.R. pt. 390, app. A.) The guidance is explicit about the converse: "[I]f the passenger has made no arrangement for transportation and upon arriving at an airport ... makes arrangements for transportation, that later-arranged transportation is not a continuation of the trip and is not in interstate commerce. " (Ibid.)

Velasquez concedes that as to FlyAway, while some passengers buy a package in advance, "others buy tickets upon arrival." (Velasquez Decl. P. 7.) By ATS's own evidence, part of its FlyAway service is not interstate commerce. It offers no evidence of the proportion and none tied to any route Hood drove. Festival trips. ATS's festival theory rests on one sentence: passengers "may have come from out of state." (Velasquez Decl. P. 8; UMF 59.) Hood testified he had "no idea" where those passengers came from. (Hood Depo. 40:7-9.)

FMCSA's guidance forecloses the inference: "[E]vidence of a traveler's intent is normally based on documentation, not assumptions." (49 C.F.R. pt. 390, app. A.) ATS produces no vendor agreement, manifest, booking record or through-ticket for any trip Hood drove, though its own Exhibit 19 identifies those trips by date. . . . (Id. at pp. 18-19, emphasis in original, capitalizing and underlining in title deleted.)

* Defendant's "overtime theory contradicts its preemption theory": To establish the overtime exemption, ATS argues Hood's hours were regulated by Title 13 of the California Code of Regulations, the intrastate scheme, and that this is so "even if [drivers] are solely intrastate drivers." (MPA at 12:26-13:2.) Title 13's hours rules apply "to all intrastate motor carriers and drivers" and set limits for "[i]ntrastate bus drivers." (Cal. Code Regs., tit. 13, Sec.Sec. 1212(a), 1212.5(a)(1).) If ATS is right, Hood was not "subject to FMCSA's hours of service regulations" and the preemption order does not reach him by its own terms. If instead he was subject to the federal rules, ATS must prove it. Either way, the regulatory status of Hood's work is disputed. (Id. at p. 19, emphasis in original, capitalizing and underlining in title deleted.)

* Defendant's "compliance evidence cannot distinguish federal from state regulation": Much of ATS's separate statement establishes only that Hood kept hours records, held a medical card, passed drug tests, held a commercial license, and signed compliance forms. (UMF 8-14, 20, 22, 24-27, 32-34.) None of that distinguishes federal from state regulation, because California imposes materially identical obligations on intrastate bus drivers. The federal rule for passenger-carrying vehicles permits no more than 10 consecutive driving hours and 15 hours on duty, after which the driver must take 8 consecutive hours off. (49 C.F.R.

Sec. 395.5(a); People of the State of California, supra, 177 F.4th 1032.) California's intrastate bus rule is the same in substance, no driving "[m]ore than ten hours following eight consecutive hours off duty," and none "for any period after having been on duty 15 hours following eight consecutive hours off duty." (Cal. Code Regs., tit. 13, Sec. 1212.5(a)(1).) California separately requires a record of duty status (id., Sec. 1213), and the driver-qualification, licensing, medicalcertification and drug-testing obligations of 49 C.F.R. parts 382, 383 and 391 apply to commercial motor vehicle operations "both in interstate and intrastate commerce" (49 C.F.R. pt. 390, app.

A). An employer proves nothing about federal jurisdiction by showing its driver logged hours, held a medical card, or signed a form. Every one of those obligations attached to Hood as an intrastate driver of a fifty-passenger coach in California. What would distinguish the two regimes is evidence that he operated in interstate commerce, the one thing ATS has not produced. (Id. at pp. 19-20, capitalizing and underlining in title deleted.)

* Plaintiff's "lay understanding is not evidence of which scheme governed him": Hood agreed at page 12 that he "understood the DOT hours of service requirements" and understood that as an ATS bus driver he was "required to comply with the DOT hours of ... service rules." (12:8-13.) Plaintiff places that testimony before the Court rather than leaving it for reply, and it does not carry ATS's burden. A witness's understanding of which regulatory scheme governs him is opinion on a question of law, not evidence of the answer. "[T]he manner in which the law should apply to particular facts is a legal question and is not subject to expert opinion" (Summers v.

A.L. Gilbert Co. (1999) 69 Cal.App.4th 1155, 1178-1179), and what an expert may not do a lay witness certainly may not (Evid. Code, Sec. 800). Hood had for years kept hours-ofservice records on paper for a prior employer (31:9-11), and California imposes materially identical limits and records on intrastate bus drivers (part IV.A.7, ante), so a driver in his position would understand himself bound by "DOT" hours rules whether interstate or intrastate. And asked the question without the leading premise, whether he "understood [his] hours of service were regulated by the department of transportation", he answered: "I don't know what you mean by that question." (25:13-16.)

Asked whether ATS held a federal operating number, he answered that he knew nothing about ATS's business. (50:14-16.) ATS may argue on reply that Hood's deposition testimony and his response to Request for Admission No. 16 concede the point. They do not, and the rule ATS would invoke does not reach this record. The principle that a party's declaration cannot contradict his own prior discovery is limited to instances where credible discovery admissions are contradicted only by self-serving declarations of a party, it bars a litigant from impeaching his own sworn testimony, nothing more. (Scalf v.

D. B. Log Homes, Inc., 128 Cal. App. 4th 1510, 27 Cal. Rptr. 3d 826 (2005)) It "has never stood for the proposition that highly inculpatory testimony elicited from a party in a deposition may be sufficient by itself to warrant summary judgment," nor does it relieve the moving party of its ordinary burden. (Ibid.) Deposition answers are "simply evidence ...considered and weighed in conjunction with other evidence," and testimony that is "vapid and conclusory" carries essentially no weight. (Id.)

Hood's page-12 statement that he "understood" DOT hours rules applied is a lay conclusion on the governing legal question (see subsection above), weighed against his verified denials of Requests for Admission Nos. 7 and 17, his declaration, and the balance of his testimony, it raises at most a dispute of fact, not a concession that resolves one. (Id. at pp. 20-21, capitalizing and underlining in title deleted.)

Reply

Defendant maintains:

* The initial burden is met: Plaintiff's threshold argument--that ATS failed to carry its initial burden because the Declaration of Steven Velasquez ("Velasquez Declaration") merely "characterizes records" ATS did not produce--is wrong. As a threshold matter, Plaintiff's objections to the Velasquez Declaration are procedurally defective. California Rules of Court, rule 3.1354 requires written objections to "quote or set forth the objectionable statement or material." Plaintiff's objections identify paragraphs of the Velasquez Declaration but do not quote the specific sentences being challenged.

Plaintiff's objections to the Velasquez Declaration should be overruled on this basis alone. Moreover, the Velasquez Declaration does not merely characterize records. Rather, it is based on Velasquez's personal knowledge under Code of Civil Procedure section 437c(d). Velasquez is the Regional Manager for ATS who oversees day to day operations of both drivers and dispatchers. [Velasquez Decl. P. 2.] He attests to ATS's company policies, its requirement that all drivers be interstate-qualified, its interstate routes and operations, and its process for communicating and communication of available routes to all drivers, including Hood. [Id.

P.P. 318.] This is competent declaration evidence, not inadmissible secondary evidence of a writing's contents. Plaintiff's reliance on Garibay v. Hemmat (2008) 161 Cal.App.4th 735 is inapt. In Garibay, the moving defendant's declaration stood entirely alone with no corroborating evidence. Id. at 719-20. (Hemmat's Motion "was not supported by his deposition testimony or declaration, or by any other admissible evidence [...] the sole support for the summary judgment motion was ...[an] expert witness declaration.") Moreover, in Garibay, the declarant at issue, the expert witness, "had no personal knowledge of the underlying facts of the case."

Id. at 721 (emphasis added). Here, Velasquez personally oversaw the implementation of the policies and practices at issue and his Declaration is corroborated by five independent sources: (1) Hood's own verified admission in response to Request for Admission No. 16 that he "was offered interstate route during employment with Defendant"; (2) Hood's signed DOT compliance documents, including drug test consent, medical certifications, and compliance statements; (3) Hood's deposition testimony admitting he drove festival trips (Hood Depo. 40:3-6); (4) The Notice to Employee stating "DOT Exempt"; and (5) Hood's self-certification code for interstate driving on his own DMV record. [Mills Decl., P.P. 2-3, Exs.

A-C.] Likewise, Plaintiff's best-evidence objection under Copenbarger v. Morris Cerullo World Evangelism, Inc. (2018) 29 Cal.App.5th 1 fails. In Copenbarger, the court held that oral testimony was inadmissible to prove "the content" of invoices that he neither prepared nor paid. Unlike Copenbarger, the Velasquez Declaration does not purport to prove the "content" of a writing. Id. at 848-849. Rather, it establishes company policies and practices from Velasquez's personal knowledge. (Reply, pp. 4-5, emphasis in original.)

* The opposition brief misstates the "reasonable expectation" standard: Plaintiff's Opposition depends heavily on the "indiscriminate assignment" language from Morris v. McComb (1947) 332 U.S. 422 and Bell v. H.F. Cox, Inc. (2012) 209 Cal.App. 4th 62. But that is not the governing standard. The 1981 DOT Notice of Interpretation states: "If jurisdiction is claimed over a driver who has not driven in interstate commerce, evidence must be presented that the carrier has engaged in interstate commerce and that the driver could reasonably have been expected to make one of the carrier's interstate runs.

Satisfactory evidence would be statements from drivers and carriers, and any employment agreements." (46 Fed. Reg. at p. 37,903.) The standard is "reasonable expectation," not mandatory assignment. Morris described one factual scenario; it did not hold that indiscriminate assignment is required in every case. Tellingly, Plaintiff does not address Gonzalez v. Smith International, Inc. (S.D. Tex. 2010) 899 F.Supp.2d 622, 636, which held jurisdiction existed where drivers were merely "subject to being called" to drive interstate, even where one driver never drove interstate and another did only three times. (Id. at p. 5, emphasis in original.)

* Defendant's "assignment system satisfies" the "reasonable expectation" standard: Plaintiff's characterization of ATS's "bid-style" system as "the opposite of indiscriminate assignment" is not supported by any case law. Moreover, Plaintiff's argument conflates the mechanism of assignment with whether the driver could reasonably be expected to make interstate runs. The "indiscriminate" assignment is "not a bright-line test." Chao v. First Class Coach Co. (M.D. Fla. 2001) 214 F. Supp. 2d 1263, 1275.

As the Chao court identified, "[t]he more germane question is whether there is other substantial evidence that the drivers in question are reasonably expected to be involved in interstate commerce." Id. at 1275-1276. As explained in the moving papers, a carrier that posts interstate routes to all qualified drivers and requires all drivers to be qualified for interstate work establishes a reasonable expectation. ATS's system, where interstate routes were posted to all qualified drivers and could be claimed by any of them, is functionally random assignment: every driver had equal access to every posted route. . . . (Id. at pp. 5-6, capitalizing and underlining in title deleted.)

* Plaintiff's response to request for admission number 16 is dispositive: Hood's verified admission that he "was offered interstate route during employment with Defendant" is precisely the "concrete evidence" the 1981 interpretation requires. [Mills Decl., P.P. 2-3, Ex. B.] The Opposition never reconciles this admission with Hood's subsequent deposition denials. At his deposition, Hood attempted to recant, stating "That's a, that's false, negative." [Declaration of John Emeya ("Emeya Decl.") P. 7, Ex. 1., (Hood Depo. 43:4-23).] But a party cannot withdraw a verified admission by contradicting it in subsequent testimony. Under Code of Civil Procedure section 2033.410, a matter admitted in response to a request for admission is "conclusively established" unless the court permits withdrawal or amendment. Hood has not moved to withdraw or amend RFA No.

16. His admission alone establishes the reasonable expectation of interstate work. Hood's own testimony corroborates the system: routes were posted on Connecteam "for everybody ... for everyone" (Hood Depo. 44:1-3), and he acknowledged being eligible and certified for interstate driving (Hood Depo. 42:11-15). [Emeya Decl. P. 7, Ex. 1.] The fact that Hood chose not to claim available interstate routes does not mean they were not offered. His subjective characterization of what constitutes an "offer" does not create a triable issue where his verified admission and the objective facts establish the routes were available to him. (Id. at pp. 6-7.)

* "The continuous-journey trips provide additional support": Hood actually drove Coachella/Stagecoach festival trips. These were brokered through third-party vendors under prearranged service agreements. [Velasquez Decl. P. 8.] That passengers traveled from out of state is not speculation--it is a natural inference from the nature of Coachella, an internationally known music festival attracting attendees from around the world. As to the airport shuttle, including the FlyAway routes: regardless of whether Hood personally drove FlyAway routes, the existence of FlyAway service as part of ATS's regular operations establishes the interstate character of ATS's business and supports the reasonable expectation that any ATS driver could be called upon for such routes. [Velasquez Decl. P. 7.] (Id. at p. 7, bolding, capitalizing, and underlining in title deleted.)

* Plaintiff's temporal-limit argument is unavailing: The Opposition argues ATS identifies no date from which the four-month clock starts. But ATS's evidence shows interstate routes were available "consistently" and "virtually daily" throughout Hood's entire ten-month employment. [Velasquez Decl. P. 11.] The reasonable expectation was continuous. Not to mention that Hood's own festival trip assignments provide concrete dates--Hood admitted he drove all Coachella routes during his employment, establishing that the expectation was realized, not hypothetical. Moreover, the 1981 interpretation's four-month rule is a temporal limit on proof, not a substantive limitation on coverage. Where a carrier maintains a constant policy of interstate availability and regularly posts interstate routes, the expectation is ongoing. (Ibid., emphasis in original.)

Analysis

The parties agree that, in January 2020, the FMCSA held that "California's meal and rest break rules are preempted 'as applied to passenger-carrying commercial motor vehicle drivers subject to FMCSA's hours of service regulations.'" (Opposition, p. 13 [quoting 85 Fed.Reg. 3469 (Jan. 21, 2020) Docket No. FMCSA-2019-0048 and noting that "[t]he Ninth Circuit denied California's petition for review"], emphasis deleted.) Defendant operates passenger-carrying buses inside California and Nevada and has bus routes that go from one state to the other. (See Motion, pp. 6-11 [citing evidence].)

Plaintiff never drove a passenger-carrying bus for Defendant outside California. (See id. at p. 11 ["To the extent Plaintiff may not have driven any interstate routes, that is not because they were not offered to him but because he did not take them when they were offered."]; see also Opposition, pp. 6-7 [quoting Plaintiff's deposition transcript; Plaintiff answered "Nope" when he was asked whether he had ever driven to Defendant's Nevada locations].)

The DOT has advised that, when "jurisdiction is claimed over a driver who has not driven in interstate commerce," the party seeking to prove jurisdiction must present evidence showing "that the carrier has engaged in interstate commerce and that the driver could reasonably have been expected to make one of the carrier's interstate runs." (Reply, p. 5 [quoting 46 Fed.Reg. at p. 37903], emphasis added.) "Satisfactory evidence would be statements from drivers and carriers, and any employment agreements." (Ibid.) Plaintiff stipulates that "ATS itself operates in interstate commerce[.]" (Opposition, p. 14.) The remaining issue is whether Plaintiff "could reasonably have been expected to make one of [Defendant's] interstate runs." (Ibid. [quoting 46 Fed.Reg. at p. 37903].)

The first inquiry, though, is whether Defendant shifts the burden. Plaintiff contends the answer is "no" because Defendant's showing "rests on a declarant's characterization of records that ATS holds and did not place before the Court." (Id. at p. 12.) The declarant is Steven Velasquez, Defendant's current Regional Manager and former Site Manager. (See Velasquez Decl., P. 2.) The lion's share of the declaration is based on personal knowledge and recalls Velasquez's interactions with Plaintiff. There is little to no "characterization of records." (See id. at P.P. 3-19.) Notably, Velasquez declares:

10. Plaintiff's job duties were not limited to only intrastate route assignments. Plaintiff was offered interstate routes, and like all ATS drivers, was reasonably expected to be called upon to make interstate runs. Whether or not Plaintiff or any ATS driver believed that they did not have to take interstate work when offered was irrelevant as it was and continues to be an ATS company expectation of all drivers to be available to drive interstate routes. This is why ATS requires all of its drivers to be interstate qualified.

11. ATS requires all drivers to be qualified to drive interstate so it can cover the many different types of routes it offers, including interstate trips, FlyAway routes, and festival trips. Opportunities to drive any of these routes has consistently been available to all qualified drivers since 2020. ATS often needs drivers to cover these routes. Virtually daily, ATS has sent out notifications to all drivers via its communication platform (Connecteam) regarding available routes that drivers could pick up if they wanted additional routes. These routes were available to all drivers, including Plaintiff, throughout Plaintiff's employment. This system operates on a bid-style basis, where available trips are posted for all qualified drivers to voluntarily review and claim, including Plaintiff. Many of these routes are interstate trips or FlyAway routes.

12. Any ATS employees that have a commercial driver's license are eligible to drive interstate trips and projects. Since any driver may be called upon to drive one of these interstate routes, ATS requires all drivers to have a commercial driver's license and comply with the Department of Transportation's ("DOT") Federal Motor Carrier Safety Administration's ("FMCSA") requirements for drivers in interstate commerce, including having a safe drivers record and passing a medical examination required by the FMCSA. Drivers are required to be knowledgeable and comply with all FMCSA rules and regulations.

13. A DOT medical examiner certificate for Commercial Driver Medical Certification is required every two years for any driver of commercial motor vehicles - this included Plaintiff.

14. Pursuant to the Federal Motor Carrier Safety Regulations, when Plaintiff was hired, he was required to successfully complete a road test - which he did. When Plaintiff went through the proficiency testing for the position, he was certified to safely operate the following vehicles for Defendant: 40 foot Blue Burd School Bus, 40 foot Thomas School Bus, Bus with Air Brakes, and Bus with Hydraulic Brakes. A true and correct copy of this certification is attached hereto as Exhibit D.

15. When Plaintiff was hired, he participated in new hire orientation. During the orientation, ATS discussed in detail with Plaintiff how ATS requires all drivers, including Plaintiff, to log their on-duty time and drive time through Samsara, which tracks drivers' on duty hours and drive time to ensure compliance with FMCSA's Hours of Service requirements. Plaintiff was also told that as a commercial driver he was exempt from overtime and meal and rest breaks under the law.

16. Throughout his employment, each of the buses that Plaintiff drove for ATS were DOT-certified and capable of interstate operations.

17. For every trip that Plaintiff drove for ATS, Plaintiff completed DOT driver's logs through the Samsara system and had to comply with DOT hours of service requirements.

18. To the extent Plaintiff may not have driven any routes that specifically left the State of California, that is not because they were not offered to him but because he did not take them when they were offered. (Id. at P.P. 10-18, emphasis added.)

These paragraphs render Velasquez's declaration materially different than the expert declaration analyzed in Garibay. They constitute concrete evidence and suffice to meet Defendant's initial burden.

Which brings the Court to Plaintiff's temporal-limit argument. The federal regulation states that "[e]vidence of driving in interstate commerce or being subject to being used in interstate commerce should be accepted as proof that the driver is subject to [the hours-of-service requirements] for a 4-month period from the date of the proof." (Opposition, pp. 14-15 [quoting 46 Fed.Reg. at p. 37903], emphasis deleted.) Plaintiff claims: "ATS identifies no date on which any such proof was made as to Hood, no interstate run, no assignment, no communication, no record.

The clock it needs never starts." (Id. at p. 15.) The Court disagrees for two reasons. One, "the four-month rule is a temporal limit on proof, not a substantive limitation on coverage. Where a carrier maintains a constant policy of interstate availability and regularly posts interstate routes, the expectation is ongoing." (Reply, p. 7.) Two, the Velasquez declaration shows that Defendant "requires all drivers to be qualified to drive interstate so it can cover the many different types of routes it offers, including interstate trips, FlyAway routes, and festival trips" and that, " since 2020," " [v]irtually daily," it has posted notifications to all drivers "regarding available routes[.]" (Velasquez Decl., P. 11, emphasis added.)

This statement evinces that there was an ongoing expectation throughout Plaintiff's employment.

Next, Plaintiff challenges Defendant's voluntary bid system. Velasquez declares that Defendant's assignment system "operates on a bid-style basis, where available trips are posted for all qualified drivers to voluntarily review and claim, including Plaintiff." (Ibid.) Plaintiff cites Bell and Morris, arguing that preemption is inapplicable to voluntary assignments. (See Opposition, pp. 15-16.) Bell and Morris do not go that far. In Bell, [t]he trial court stated in its statement of decision that drivers are considered to be "indiscriminately assigned" to interstate routes if they reasonably could be expected to be called on to drive an interstate route.

The court found that Cox's drivers hauled 3,543 loads on interstate routes to or from California during the class period from 2001 through 2008, and that Cox employed 165 drivers as of September 2010. It stated that plaintiffs' contention that Cox assigned interstate hauls on a volunteer basis was not accurate and that the evidence showed that Cox sometimes asked for volunteers and sometimes assigned drivers who did not volunteer to drive interstate routes. It found that all of Cox's drivers and all of its trucks were qualified for interstate hauls and that some drivers had been randomly assigned to interstate routes.

The court noted that, in requesting volunteers, Cox made it clear that no driver was immune from being assigned to drive an interstate route. The court found that all of Cox's drivers reasonably could be expected to be called on to drive an interstate route. (Bell, supra, 209 Cal.App.4 th at 79.) The Court of Appeal affirmed, finding no error. (See id. at 80.) In Morris, "[t]he United States Supreme Court . . . held that, although interstate hauls constituted only 3.65 percent of the carrier's trips and many of its drivers performed no interstate hauls, the motor carrier exemption applied to all of the carrier's drivers." (Id. at 78 [summarizing Morris].) " Morris stated that the interstate hauls were 'shared indiscriminately by the drivers' and mingled with intrastate work, and 'were thus a natural, integral and apparently inseparable part of the common carrier service of the petitioner and of his drivers.'" (Ibid. [quoting Morris].)

Bell and Morris define "indiscriminately assigned" as subject to being called to take an interstate assignment. The definition governs even if some voluntary options exist. Defendant's showing is consistent with the Bell and Morris holdings. The evidence demonstrates that, as a condition of hiring, "ATS required [] all drivers [to] be willing to" "go over-the-road on out-of-town trips that crossed state lines" "because of ATS's need for drivers for such interstate routes." (Velasquez Decl., P. 4.) "[I]t was and continues to be an ATS company expectation of all drivers to be available to drive interstate routes. This is why ATS requires all of its drivers to be interstate qualified." (Id. at P. 10.)

Garcia, a case Plaintiff cites, strengthens this conclusion. To be sure, the defendant submitted affidavits that were "not as revealing as they could" have been concerning the size of the "pool of drivers" and how often they were "called upon to drive for the interstate services[.]" (Garcia, supra, 955 F.Supp. at 77.) Yet, despite that, the district court granted summary judgment because all of the defendant's drivers "conform[ed] to the Federal Motor Carrier Safety Regulations and maintain[ed] all required DOT forms," all of the vehicles were "maintained in accordance with ICC (DOT”) regulations[,]" and "all the drivers [were] subject to federal safety requirements." (Id. at 77-78.)

ATS's evidence is analogous. (See Velasquez Decl., P.P. 11-17.) And, ultimately, the Court finds that Plaintiff fails to raise a triable issue. Plaintiff admitted under penalty of perjury that (1) "possession of a commercial driver's license was a condition of [his] employment with Defendant[,]" (2) "in connection with applying for or renewing a commercial driver's license, [he] selected a certification category that included interstate driving[,]" and (3) he "was offered interstate routes during employment with Defendant." (Mills Decl., Ex.

B [attaching responses to request for admission numbers 2, 3, and 16].) Coupled with the Velasquez declaration, his admissions buttress Defendant's position and undermine his own. [2]

The final question is whether a continuance should be granted. Plaintiff requests a continuance pursuant to Code of Civil Procedure section 437c(h). He argues that "ATS holds the evidence and has not produced it[,]" and he claims "Velasquez has never been deposed." (Opposition, pp. 18, 24, capitalizing and underlining in title deleted.) The request is denied. "Discovery on" this issue "has been open since September 22, 2025[.]" (Id. at p. 24.) Plaintiff received an ample opportunity to obtain Defendant's documents, depose Velasquez, and conduct other discovery. The motion for summary adjudication is granted.

Fourth Cause of Action (Failure to Provide Accurate Itemized Wage Statements)

The motion for summary adjudication is granted. "Plaintiff does not oppose adjudication of" this cause of action. (Opposition, p. 6.)

[1] The opposition exceeds the page limit by approximately one page. The Court read it.

[2] The Court rejects Plaintiff's assertion that Defendant's overtime theory is inconsistent with the preemption theory. Defendant is entitled to argue alternative theories. (See Reply, p. 3.) Both theories weigh in Defendant's favor.

[3] The Court declines to analyze Defendant's continuous-journey theory. The Court finds it inessential to resolution of the motion.

Case Number: 25STCV11792 Hearing Date: August 25, 2026 Dept: 11 Lekocevic (25STCV11792) Tentative Ruling Re: Motion to Compel Arbitration Date: 8/25/26 Time: 11:00 am Moving Party: TriNet HR III, Inc. ("TriNet" or "Defendant") Opposing Party: Anton Lekocevic ("Plaintiff") Department: 11 Judge: Bruce G. Iwasaki ________________________________________________________________________

TENTATIVE RULING

Plaintiff's class action (25STCV11792) is stayed pending completion of arbitration in Plaintiff's individual action (24STCV19758).

BACKGROUND

TriNet is a company that provides administrative services - e.g., onboarding, payroll processing, and other human resources - to client businesses. One of TriNet's clients is named Genius Group USA, Inc. ("Genius"). Plaintiff used to work for Genuis, but he alleges that TriNet employed him. Plaintiff filed two cases against TriNet. The first (24STCV19758) is an individual action pending in Department 73 in front of Judge Gary D. Roberts. The individual complaint asserts causes of action for failure to reimburse business expenses, violation of California's Warn Act, unjust enrichment, failure to provide accurate itemized wage statements, violation of Labor Code sections 204 and 210, waiting-time penalties, and violation of the Unfair Competition Law ("UCL"). (See Complaint (24STCV19758), P.P.