Hernandez v. Mac Cal Company

LINE # CASE # CASE TITLE RULING LINE 1 24CV441630 Hernandez v. Mac Cal Company Motion: Summary (Class Action/PAGA) Judgment/Adjudication is DENIED

Click on line 1 for tentative ruling LINE 2 24CV445405 Mendoza Jaimes v. Kumar Motion: Withdraw as Management, Corporation (Class attorney is GRANTED Action) Click on line 2 for tentative ruling LINE 3 24CV452239 Lonnie Wong vs Ro Health, LLC, a Hearing: Petition for Limited Liability Company (Class Coordination is DENIED Action) Click on line 3 for tentative ruling LINE 4 25CV469636 MARIA CASTRO vs THE VILLAGES Hearing: Demurrer is GOLF AND COUNTRY CLUB, a OVERRULED California nonprofit corporation (Class Action / PAGA) Click on line 4 for tentative ruling LINE 5 25CV477079 ISABELLA STOJANOV, individually, Motion: Compel and on behalf of other similarly Arbitration is DENIED situated emplo vs GDH CONSULTING, INC et al (Class Action) LINE 6 25CV477079 ISABELLA STOJANOV, individually, Motion: Joinder is DENIED and on behalf of other similarly situated emplo vs GDH CONSULTING, Click on lines 5-6 for INC et al (Class Action) tentative ruling LINE 7 LINE 8 LINE 9 LINE 10 LINE 11 LINE 12 LINE 13

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Case Name: Hernandez v. Mac Cal Company, Inc, et al. Case No.: 24CV441630

This is a class and representative action under the Private Attorneys General Act (“PAGA”). Plaintiff Arturo Hernandez alleges defendant Mac Cal Company, Inc. (“Mac Cal” or “Defendant”) committed various wage and hour violations.

Before the Court is Defendant’s motion for summary judgment or in the alternative, summary adjudication, which is opposed. For the reasons discussed below, the Court DENIES Defendant’s motion for summary judgment and DENIES its motion for summary adjudication.

I. BACKGROUND

According to the allegations of the operative first amended complaint (“FAC”), on August 2021, Plaintiff began working for Defendants as an hourly, non-exempt “laser operator,” and his employment ended in October 2023. (FAC, ¶ 7.) Plaintiff was subjected to Defendant’s wage and hour policies and practices. (Ibid.) Defendant failed to: pay all wages owed; provide compliant meal periods or compensation in lieu thereof; provide complaint rest periods or compensation in lieu thereof; and pay all wages owed, including minimum and overtime.

Plaintiff initiated this action on June 24, 2024 with the filing of the complaint and on June 11, 2025, he filed the operative FAC, which asserts the following causes of action: (1) Violation of Labor Code § 226; (2) Violation of Labor Code §§ 201 204, 558, 1194, 1197, And 1197.1; (3) Violation of Labor Code §§ 201 204, 510, 558, 1194, 1197, And 1197.1; (4) Violation of Labor Code §§ 201 204, 510, 558, 1174, 1198, And 1199; (5) Violation of Labor Code §§ 226.7 And 512; (6) Violation of Labor Code § 226.7; (7) Violation of Business And Professions Code §17200, et seq.; And (8) Violation of Labor Code §2698, et seq.

II. EVIDENTIARY OBJECTIONS

A. Plaintiff’s Objections

Plaintiff submits his evidentiary objection to paragraph 4 of the declaration of Melina Fielding (“Fielding Decl.”).

However, the Court need not rule on it because it does not comply with California Rule of Court 3.1354, which requires two documents to be submitted when evidentiary objections are made: the objections and a separate proposed order on the objections, both of which must be in one of the two approved formats set forth in the rule. (See Vineyard Spring Estates v. Super. Ct. (2004) 120 Cal.App.4th 633, 642 (Vineyard) [trial courts only have duty to rule on evidentiary objections presented in the proper format]; Hodjat v. State Farm Mutual Automobile Ins. Co. (2012) 211 Cal.App.4th 1 (Hodjat) [trial court not required to rule on objections that do not comply with Rule of Court 3.1354 and not required to give objecting party a second chance at filing properly formatted papers].)

Here, Plaintiff submitted one document that attempts to be both the objections and the proposed order, in violation of Rule 3.1354. Consequently, the Court declines to rule on the evidentiary objection. Objections that are not ruled on are preserved for appellate review. (See Code of Civ. Proc., § 437c, subd. (q).)

B. Defendant’s Objections

Defendant submits objections to Plaintiff’s declaration and the declaration of Diomenes Luera (“Luera”). Similarly, Defendant only submitted one document that attempts to be both the objections and the proposed order, in violation of Rule 3.1354. Consequently, the Court declines to rule on the evidentiary objection. Objections that are not ruled on are preserved for appellate review. (See Code of Civ. Proc., § 437c, subd. (q).)1

III. DEFENDANT’S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION

Defendant moves for summary judgment or in the alternative summary adjudication.

A. Legal Standard

“A defendant seeking summary judgment [or adjudication] must show that at least one element of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action. ... The burden then shifts to the plaintiff to show there is a triable issue of material fact on that issue.” (Alex R. Thomas & Co. v. Mutual Service Casualty Ins. Co. (2002) 98 Cal.App.4th 66, 72; see also Code Civ. Proc., § 437c, subd. (p)(2).)

This standard provides for a shifting burden of production; that is, the burden to make a prima facie showing of evidence sufficient to support the position of the party in question. (See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850–851 (Aguilar).) The burden of persuasion remains with the moving party and is shaped by the ultimate burden of proof at trial. (Ibid.) “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Ibid.) The opposing party must produce substantial responsive evidence that would support such a finding; evidence that gives rise to no more than speculation is insufficient. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 162–163.)

The traditional method for a defendant to meet its burden on summary judgment is by “negat[ing] a necessary element of the plaintiff’s case” or establishing a defense with its own evidence. (Guz v. Bechtel Nat’l, Inc. (2000) 24 Cal.4th 317, 334 (Guz).) The defendant may also demonstrate that an essential element of plaintiff’s claim cannot be established by “present[ing] evidence that the plaintiff does not possess, and cannot reasonably obtain, needed

1 In its reply, Defendant argues Plaintiff’s and Luera’s declarations should not be admitt3ed because there is no Spanish translation or indication that the declarations were translated from Spanish. (Reply, p. 3:5-15.) In response, Plaintiff submitted the declaration of David Ramos Vasquez, a legal assistant for Plaintiff’s counsel who spoke with both Plaintiff and Luera and accordingly drafted the declarations. (Ramos Vasquez Decl., ¶¶ 9- 11.) Thus, the Court declines to disregard the declarations.

evidence-as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing.” (Aguilar, supra, 25 Cal.4th at p. 855.)

On summary judgment, “the moving party’s declarations must be strictly construed and the opposing party’s declaration liberally construed.” (Hepp v. Lockheed-California Co. (1978) 86 Cal.App.3d 714, 717 (Hepp); see also Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64 [the evidence is viewed in the light most favorable to the opposing plaintiff; the court must “liberally construe plaintiff’s evidentiary submissions and strictly scrutinize defendant’s own evidence, in order to resolve any evidentiary doubts or ambiguities in plaintiff’s favor”].)

Summary judgment may not be granted by the court based on inferences reasonably deducible from the papers submitted, if such inferences are contradicted by others which raise a triable issue of fact. (Hepp, supra, 86 Cal.App.3d at 717.) A party may bring a motion for summary adjudication that one or more causes of action have no merit. (Code Civ. Proc., § 437c, subd. (f)(1).) A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty. (Ibid.)

A motion for summary adjudication proceeds in all procedural respects as a motion for summary judgment. (Id. at subd. (f)(2).) “A party may seek summary adjudication on whether the cause of action, affirmative defense or punitive damages claim has merit or whether a defendant owed a duty to a plaintiff.” (California Bank & Trust v. Lawlor (2013) 222 Cal.App.4th 625, 630; Code Civ. Proc., § 437c, subd. (f)(1).)

In ruling on a motion for summary judgment or adjudication, the court considers all the evidence and all of the inferences reasonably drawn therefrom and must view such evidence in the light most favorable to the opposing party. (All of US or None-Riverside Chapter b. Hamrick (2021) 64 Cal.App.5th 751, 783.)

B.

Discussion

Defendant’s undisputed material facts (“UMF”) are as follows: Defendant is a contract manufacturer. (Defendant’s UMF, No. 1.) Plaintiff was employed as a laser machine operator from August 2021 to October 2023. (Ibid.) Plaintiff was paid for all hours worked while he worked for Defendant. (Defendant’s UMF, No. 2.) Plaintiff is not owed any regular or overtime wages by Defendant. (Defendant’s UMF, No. 3.) Plaintiff’s wage statement accurately reported all hours he worked based on when his shift started and ended. (Defendant’s UMF, No. 4.)

The only time Plaintiff was not paid for a full eight-hour shift was when he clocked in after 6:00 a.m., the starting time for shift. (Defendant’s UMF, No. 5.) Plaintiff never did any work before his shift started at 6:00 a.m. or after it was over at 2:30 p.m. (Defendant’s UMF, No. 6.) He was free to do whatever he wanted before his shift started and after it ended. (Ibid.) Unlike other employees working on the shop floor, Plaintiff’s shift ended at 2:30 p.m. (Defendant’s UMF, No. 7.) There were no occasions when anything prevented Plaintiff from stopping work when his shift ended. (Ibid.)

Plaintiff’s wage statements contained information identifying Defendant as his employer. (Defendant’s UMF, No. 8.) Defendant uses a bell system to let employees know when their meal periods begins and end. (Defendant’s UMF, No. 9.) The bell goes off at 11:00 a.m. for the beginning of the meal period and at 11:30 a.m. for the end of the meal period. (Ibid.) A warning bell goes off two minutes before the end of the meal period. (Defendant’s UMF, No. 10.) Plaintiff understood that the bell went off at the beginning of each meal period. (Defendant’s UMF, No. 11.)

He does not recall more than one bell going off at the end of the meal period. (Ibid.) Plaintiff always went to his car during the meal period. (Defendant’s UMF, No. 12.) He knew when the meal period was over by looking at his phone and seeing other employees coming back from their cars. (Ibid.) Plaintiff was free to do whatever he wanted to do during his meal periods. (Defendant’s UMF, No. 13.) No one ever told Plaintiff he couldn’t take 30 minute meal periods. (Defendant’s UMF, No. 14.)

The only times Plaintiff was unable to start taking his meal period when the bell went off was when he was asked to help unload materials from a delivery truck about two minutes before the meal period. (Defendant’s UMF, No. 15.) This occurred about once every two months. (Ibid.) It delayed the beginning of his meal period by five or ten minutes, but he was unable to make up the time lost by going back to work after everyone else did. (Ibid.)

Defendant uses a bell system to let employees know when their rest breaks begin and end. (Defendant’s UMF, No. 16.) The bell goes off at 8:00 a.m. for the beginning of the morning break, 8:10 a.m. for the end of the morning break, 1:30 p.m. for the beginning of the afternoon break, and 1:40 [p.m.] for the end of the afternoon break. (Ibid.) A warning bell goes off two minutes before the end of the rest break. (Defendant’s UMF, No. 17.) Plaintiff recalls a bell going off at the beginning of each rest break. (Defendant’s UMF, No. 18.) He does not recall any bells going off the end of the rest breaks. (Ibid.) Plaintiff had full tenminute rest breaks starting at 8:00 a.m. and 1:30 p.m. every day. (Defendant’s UMF, No. 19.) He was free to do whatever he wanted to do during his rest breaks. (Ibid.) No one ever told Plaintiff he couldn’t take 10-minute rest breaks. (Defendant’s UMF, No. 20.)

Plaintiff never worked overtime. (Defendant’s UMF, No. 21.) Plaintiff was paid for all hours worked while he worked for Defendant. (Defendant’s UMF, No. 22.) Plaintiff is not owed any money for hours worked that was not paid. (Defendant’s UMF, No. 23.) Plaintiff never did any work for Defendant before his shift began at 6:00 a.m. (Defendant’s UMF, No. 24.) Plaintiff was free to do whatever he wanted before his shift started. (Defendant’s UMF, No. 25.) Unlike other employees working on the shop floor, Plaintiff’s shift ended at 2:30 p.m. (Defendant’s UMF, No. 26.) There were no occasions when anything prevented Plaintiff from stopping working when his shift ended. (Ibid.)

Plaintiff was paid for all hours worked while he worked for Defendant. (Defendant’s UMF, No. 27.) Plaintiff is not owed any regular or overtime wages by Defendant. (Defendant’s UMF, No. 28.) Plaintiff’s wage statement accurately reported all hours worked based on when his shift started and ended. (Defendant’s UMF, No. 29.) The only time Plaintiff was not paid for a full eight-hour shift was when he clocked in after 6:00 a.m., the starting time for his shift. (Defendant’s UMF, No. 30.)

Defendant uses a bell system to let employees know when their meal periods begin and end. (Defendant’s UMF, No. 33.) The bell goes off at 11:00 a.m. for the beginning of the meal period and at 11:30 a.m. for the end of the meal period. (Ibid.) A warning bell goes off two minutes before the end of the meal period. (Defendant’s UMF, No. 34.) Plaintiff understood that a bell went off at the beginning of each meal period. (Defendant’s UMF, No. 35.) He does not recall more than one bell going off at the end of the meal period. (Ibid.) Plaintiff always went to his car during the meal period. (Defendant’s UMF, No. 36.) He knew when the meal period was over by looking at his phone and seeing other employees coming back from their cars. (Ibid.)

Plaintiff was free to do whatever he wanted to do during his meal periods. (Defendant’s UMF, No. 37.) No one ever told Plaintiff he couldn’t take 30-minute meal periods. (Defendant’s UMF, No. 38.) The only times Plaintiff was unable to start taking his meal period when the bell went off was when he was asked to help unload materials from a delivery truck about two minutes before the meal period. (Defendant’s UMF, No. 39.) This occurred about once every two months. (Ibid.) It delayed the beginning of his meal period by five or ten minutes, but he was able to make up the time lose by going back to work after everyone else did. (Ibid.) Plaintiff’s wage statements contained information identifying defendant as his employer. (Defendant’s UMF, No. 46.)

With regard to the meal and rest breaks, Plaintiff states that Defendant did not require its employees to clock in and out for its meal breaks—instead it utilized a bell system which required employees to return to their work stations before the end of their break. (Plaintiff’s Response to Defendant’s UMFs (“Plaintiff’s Response”), No. 2.) For meal breaks, the bell would ring at 11:00 a.m. to indicate the beginning of the break and around 11:28 a.m. a warning bell would ring so employees would start walking to their work stations. (Ibid.)

A final bell would ring at 11:30 a.m. and all employees had to be in their working stations before the ringing of the final bell. (Ibid.) Those who did not return to their stations before the final bell would receive a warning from their supervisor. (Ibid.0 a similar policy was implemented for rest breaks. (Ibid.) The buzzer system contradicts Defendant’s written policy for meal and rest breaks outlined in its 2021 Employee Handbook, which states, “[n]onexempt employees should accurately record the time they begin and end their work, as well as the beginning and ending time of each meal period.” (Ibid.)

Defendant’s bell system deprives employees of any autonomy in setting their own meal and rest breaks and taking their full duty-free breaks. (Ibid.) Additionally, Defendant engaged in a non-neutral time rounding policy resulting in substantial unpaid minimum and overtime wages. (Ibid.)

Defendant required its employees to arrive prior to the start time to set up their work stations, ready their tools and start work exactly at the start time. (Plaintiff’s Response, No. 6.) Similarly, Defendant required its employees to work after the end of their work schedule and did not compensate its employees for the time required to clean their work station and pack up their tools. (Ibid.) However, if the employees clocked in after the start time or clocked out prior to the end time, the employees pay would be reduced by the missed time. (Ibid.) This was deliberately designed for the benefit of the employer at the expense of employees—Defendant used rounding when it benefited them, but would reduce an employee’s wages by the minute when an employee clocked in late. (Ibid.)

1. Second, Fifth, and Sixth Causes of Action

Labor Code section 226.7 provides, as relevant, “An employer shall not require an employee to work during a meal or rest or recovery period mandated pursuant to an applicable statute...or order of the Industrial Welfare Commission...” (Lab. Code, § 226.7, subd. (b).) Labor Code section 512, provides, as relevant, “An employee 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 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 employer and employee...” (Lab. Code, § 512, subd. (a).)

Defendant contends it utilized a bell system to notify non-exempt employees when meal and rest periods began (at 11:00 a.m.) and ended (at 11:30 a.m.). (Defendant’s Memorandum of Points and Authorities (“MPA”), p. 4:8-11; Defendant’s UMF, Nos. 9-10.) In support, Defendant provides the declaration of Jonathan Jackel (“Jackel Decl.”), president of Defendant, who states that Defendant used a bell system to let employees know when their meal or rest breaks began and ended. (See Jackel Decl., ¶¶ 6-7.)

He further states that a warning bell went off two minutes before the end of the meal or rest periods and employees were not expected or required to resume work until after the end of their meal and rest periods. (Jackel Decl., ¶¶ 6-7.) In response, Plaintiff states that the employees were required to walking to their work stations once the warning bell rang. (Plaintiff Decl., ¶ 6; Luera Decl., ¶ 6.) Plaintiff further argues that the bell system contradicts the 2021 Employee Handbook. (Plaintiff Decl., ¶ 8; Luera Decl., ¶ 8.)

In 2023, the Employee Handbook was updated and it stated that “[e]mployees are expected to be at their work stations ready to begin working when the alert sounds at the start of each shift segment and work through until the alert sounds at the end of each shift segment. An additional alert sounds 2 minutes before shift and start times and break finish times.” (Plaintiff’s Decl., ¶ 9; Luera Decl., ¶ 9; Jarrod Nakano Declaration (“Nakano Decl.”), Exh. K, p. 31.) Thus, there are triable issues of material fact as to whether Plaintiff was given compliant meal and rest periods.

Consequently, summary adjudication of these claims is not proper.

Based on the foregoing, Defendant’s motion for summary judgment is DENIED and its motion for summary adjudication of the second, fifth, and sixth causes of action is DENIED.

2. First Cause of Action

Labor Code section 226 identifies various types of information that must be furnished on a pay stub when wages are paid to an employee, including, among other things, “(1) gross wages earned, (2) total hours worked by the employee... and (5) net wages earned.” (Lab. Code, § 226, subd. (a).) If an employer fails to provide a wage statement, provides one that is inaccurate, or provides one that makes it difficult for an employee to determine certain information (e.g., amount of gross wages or net wages paid), an employee is deemed to suffer an injury. (Lab. Code, § 226, subd. (e)(2).)

Defendant argues that the first cause of action fails because Plaintiff was paid for all hours worked, he did not work overtime, and he did not suffer any meal or rest period violations. (Defendant’s Memorandum of Points and Authorities (“MPA”), p. 6:15-18.) Defendant relies on Plaintiff’s deposition, in which he testified as follows:

Q. And are you claiming that Mac Cal owes you money for overtime hours that you worked without getting the proper compensation? ... A. I never worked overtime. (Plaintiff’s Deposition (“Depo”), p. 15:17-25.)

Q. Do you believe that Mac Cal owes any money for you for hours that you worked and for which you were not paid? ... A. No.

Q. So you’re not claiming that you’re owed any money for hours you worked and didn’t get paid; is that correct? A. For the conclusions that I saw, yes, they have to pay me. Q. Pay you for what? A. For the times that aren’t that I saw in my paycheck stubs. (Plaintiff’s Depo., p. 19:8-23.)

Defendant also relies on the declaration of Melina Fielding (“Fielding Decl.”), the Chief Financial Officer for Defendant. Fielding states that Plaintiff’s wage statements accurately reported all hours he worked based on when his shift started and ended. (Fielding Decl., ¶ 4.) In opposition, Plaintiff argues that Defendant used a punitive non-neutral policy regarding rounding. In support, Plaintiff relies on his wage statements, which show that Defendant rounded down the time when he clocked out past his stop time. (See Nakano Decl., Exh. F-I.)

In See’s Candy Shops, Inc. v. Superior Court (2012) 210 Cal.App.4th 889 (See’s Candy Shop), an employee challenged a rounding policy. (Id. at p. 892.) The appellate court applied the federal regulatory standard and held that an employer is entitled to use such a rounding policy if it is “fair and neutral on its face” and “used in a manner that it will not result, over a period of time, in failure to compensate the employees properly for all the time they have actually worked.” (Id. at p. 907.) The appellate court states that the question of whether rounding is “biased against employees” is a factual issue and not a legal one.” (Id. at p. 906.)

In 2022, the court in Camp v. Home Depot U.S.A., Inc. (2022) 84 Cal.App.5th 638 (Camp), reversed summary judgment on a claim regarding rounding. (Id. at p. 644.) The California Supreme Court has granted review in order to address the validity of the rounding standard in See’s Candy Shops. (Id. at pp. 660-661.) The Court does not need to resolve the dispute between Camp and See’s Candy Shops, because here, Plaintiff proffers evidence that there is a rounding policy and that it was used to favor Defendant when possible and to cut against employees when possible.

Thus, he establishes a factual dispute as to whether the rounding policy is biased against employees. Consequently, there is a triable issue of material fact as to whether Plaintiff’s claims can be predicated upon the rounding policy. As a result, there is a triable issue of material fact as to whether Defendant provided complete and accurate wage statements.

Based on the foregoing, Defendant’s motion for summary adjudication of the first cause of action is DENIED.

3. Third and Fourth Causes of Action

Labor Code section 1194, provides, “[n]otwithstanding any agreement to work for a lesser wage, any employee receiving less than the legal minimum wage or the legal overtime compensation applicable to the employee is entitled to recover in a civil action the unpaid balance of the full amount of this minimum wage or overtime compensation, including interest thereon, reasonable attorney’s fees, and costs of suit.” (Lab. Code, § 1194, subd. (a).) Labor Code section 1197 provides, “[t]he minimum wage for employees fixed by the commission or by any applicable state or local law, is the minimum wage to be paid to employees, and the payment of a lower wage than the minimum so fixed is unlawful...” (Lab. Code, § 1197.)

Defendant argues that Plaintiff was paid for all hours worked and he did not work overtime. (MPA, p. 5:8-10.) Summary adjudication of a cause of action is permitted “only if it completely disposes of a cause of action.” (See Code of Civ. Proc., § 437c, subd. (f)(1.).) As the Court explained above, Plaintiff establishes a triable issue of material fact as to the rounding theory. Thus, summary adjudication is not proper here.

Based on the foregoing, Defendant’s motion for summary adjudication of the third and fourth causes of action is DENIED.

4. Seventh Cause of Action- Violation of Business & Professions Code section 17200

The UCL defines ‘unfair competition’ to ‘mean and include any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising’ and any act prohibited by [Business and Professions Code] section 17500.” (Searle v. Wyndham Int’l (2002) 102 Cal.App.4th 1327, 1332-1333 (Searle) [internal citations omitted].) “Section 17200 ‘is not confined to anticompetitive business practices, but is also directed toward the public’s right to protection from fraud, deceit, and unlawful conduct. Thus, California courts have consistently interpreted the language of section 17200 broadly.’” (South Bay Chevrolet v. General Motors Acceptance Corp. (1999) 72 Cal.App.4th 861, 877-878 [internal citations omitted].) “The statute prohibits ‘wrongful business conduct in whatever context such activity might occur.’” (Searle, supra, at 102 Cal.App.4th at p. 1333.)

Defendant moves for summary adjudication of the seventh cause of action on the ground that it is entirely derivative of the Labor Code violations and because those claims fail, so too does the seventh cause of action. (MPA, p. 8:16-26.) Here, the motion has been denied to Plaintiff’s other claims. Defendant fails to offer any other arguments as to this claim. Accordingly, summary adjudication of this claim cannot be granted. (See Becerra v. McClatchy Co. (2021) 69 Cal.App.5th 913, 951 [where an unfair business practices claim “is derivative of an underlying violation of law, it must stand or fall with the underlying claim”].

Based on the foregoing, Defendant’s motion for summary adjudication of the seventh cause of action is DENIED.

5. Eighth Cause of Action- Violation of PAGA

Labor Code section 2699, provides, as relevant, “any provision of this code that provides for a civil penalty to be assessed and collected by the [LWDA]...for a violation of this code, may, as an alternative, be recovered through a civil action brought by an aggrieved employee and other current or former employees against who a violation of the same provision was committed...” (Lab. Code, 2699, subd. (a).) An “aggrieved employee” is defined as “any person who was employed by the alleged violator and personally suffered each of the violations alleged during the period..., (2)...any person who was employed by the alleged violator against whom one or more of the alleged violations was committed.” (Lab. Code, § 2699, subd. (c)(1).)

Defendants argue that Plaintiff is not an “aggrieved employee” such that he can represent other “aggrieved employees.” (MPA, p. 8:1-14.) Here, Plaintiff has established triable issues of material fact as to whether he experienced the Labor Code violations at issue. Thus, Defendant cannot meet its burden as to the eighth cause of action and summary adjudication is not proper.

Based on the foregoing, Defendant’s motion for summary adjudication of the eighth cause of action is DENIED.

IV. CONCLUSION

Defendant’s motion for summary judgment is DENIED, its motion for summary adjudication of each cause of action is DENIED.

The Court will prepare the order.

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