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Case 5:08-cv-01570-VAP-SP Document 205 Filed 03/30/17 Page 1 of 23 Page ID #:5100

United States District Court


Central District of California

MAR 30, 2017

BH
James Cole,
EDCV 08-1570-VAP (SPx)
Plaintiff,
v. Order GRANTING Defendant’s
Motion for Summary Judgment
CRST, Inc., [Doc. No. 198]
Defendant.

On February 6, 2017, Defendant CRST, Inc., filed a Motion for Summary


Judgment as to all claims of Plaintiff James Cole. (Doc. No. 198.) On February 13,
2017, Plaintiff filed an Opposition. (Doc. No. 199.) On February 17, 2017,
Defendant filed a Reply. (Doc. No. 201.) After reviewing and considering all
papers filed in support of, and in opposition to, the Motion, the Court GRANTS the
Motion.

I. BACKGROUND
This action arises out of the compensation system used by Defendant CRST,
a motor carrier that employs truck drivers to transport freight across the United
States. (Doc. No. 200 at 2.) Defendant is based in Cedar Rapids, Iowa, and
operates terminals across the United States, including in Fontana, California. (Id.)

Plaintiff initiated a putative class action against Defendant on October 6,


2008. (Doc. No. 1 at 9.) On January 20, 2010, Plaintiff filed a Second Amended
Complaint ("SAC") in which he alleges that (1) Defendant failed to provide rest and

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meal periods pursuant to California Labor Code sections 226.7 and 512, as well as
Industrial Welfare Commission (“IWC”) Wage Order 9; (2) failed to timely pay
wages due at termination pursuant to California Labor Code Sections 201, 202, and
203; (3) violated unfair competition law (“UCL”) pursuant to California Business &
Professions Code section 17200, et seq.; (4) failed to pay minimum wage pursuant
to California Labor Code sections 1194 and 1197, as well as IWC Wage Order 9; (4)
knowingly and intentionally failed to comply with itemized employee wage
statement provisions pursuant to California Labor Code sections 226(b), 1174, and
1175; and (6) violated the California Labor Code Private Attorneys General Act
(“PAGA”) pursuant to California Labor Code section 2698, et seq. (Doc. No. 56.)

On August 5, 2010, the Court granted Plaintiff's motion to certify the class.
(Doc. No. 86.) On April 1, 2016, however, the Court decertified the class after
determining that Plaintiff could not satisfy the predominance requirement of Fed. R.
Civ. P. 23(b). (Doc. No. 184 at 8.)

II. LEGAL STANDARD


A motion for summary judgment or summary adjudication shall be granted
when there is no genuine issue as to any material fact, and the moving party is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247-48 (1986). The moving party must show that “under
the governing law, there can be but one reasonable conclusion as to the verdict.”
Anderson, 477 U.S. at 250.

Generally, the burden is on the moving party to demonstrate that it is entitled


to summary judgment. Margolis v. Ryan, 140 F.3d 850, 852 (9th Cir. 1998); Retail

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Clerks Union Local 648 v. Hub Pharm., Inc., 707 F.2d 1030, 1033 (9th Cir. 1983).
The moving party bears the initial burden of identifying the elements of the claim or
defense and evidence that it believes demonstrates the absence of an issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

Where the non-moving party has the burden at trial, however, the moving
party need not produce evidence negating or disproving every essential element of
the non-moving party’s case. Celotex, 477 U.S. at 325. Instead, the moving party’s
burden is met by pointing out that there is an absence of evidence supporting the
non-moving party’s case. Id.

“If a moving party fails to carry its initial burden of production, the
nonmoving party has no obligation to produce anything, even if the nonmoving
party would have the ultimate burden of persuasion at trial.” Nissan Fire & Marine
Ins. Co. v. Fritz Co., 210 F.3d 1099, 1102–03 (9th Cir. 2000). “In such a case, the
nonmoving party may defeat the motion for summary judgment without producing
anything.” Id. at 1103.

If the moving party carries its burden of production, however, the burden
then shifts to the non-moving party to show that there is a genuine issue of material
fact that must be resolved at trial. See Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at
324; Anderson, 477 U.S. at 256; Nissan Fire, 210 F.3d at 1103. The non-moving
party must make an affirmative showing on all matters in issue by the motion as to
which it has the burden of proof at trial. Celotex, 477 U.S. at 322; Anderson, 477
U.S. at 252. See also William W. Schwarzer, A. Wallace Tashima & James M.
Wagstaffe, FEDERAL CIVIL PROCEDURE BEFORE TRIAL, § 14:144. “This burden is

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not a light one. The non-moving party must show more than the mere existence of a
scintilla of evidence.” In re Oracle Corp. Secs. Litig., 627 F.3d 376, 387 (9th Cir.
2010) (citing Anderson, 477 U.S. at 252).

A genuine issue of material fact will exist “if the evidence is such that a
reasonable jury could return a verdict for the non-moving party.” Anderson, 477
U.S. at 248. In ruling on a motion for summary judgment, a court construes the
evidence in the light most favorable to the non-moving party. Barlow v. Ground,
943 F.2d 1132, 1135 (9th Cir. 1991); T.W. Elec. Serv. Inc. v. Pac. Elec. Contractors
Ass’n, 809 F.2d 626, 630-31 (9th Cir. 1987).

III. UNCONTROVERTED FACTS


As a threshold matter, Defendant contends that the Court already determined
several factual issues relevant to the present Motion in its Order Decertifying the
Meal and Rest Break Period Classes (Doc. No. 184) and its Order Denying
Plaintiff’s Motion for Partial Summary Judgment (Doc. No. 171). At the class
certification stage, however, “the court makes no findings of fact and announces no
ultimate conclusions on Plaintiff[’s] claims.” Alonzo v. Maximus, Inc., 275 F.R.D.
513, 519 (C.D. Cal. 2011). Likewise, the Court’s findings of fact in its Order
Denying Plaintiff’s Motion for Partial Summary Judgment were made strictly for
“the purposes of [that] Motion” and the evidence was “construe[d] in the light most
favorable to [Defendant as] the non-moving party.” (Doc. No. 171 at 4-5.) Thus, in
neither Order did the Court make findings of fact that are relevant here.

To the extent certain facts or conclusions are not mentioned in this Order, the
Court has not relied on them in reaching its decision. The Court has considered

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independently the admissibility of the evidence that both parties submitted and has
not considered irrelevant or inadmissible evidence. The following material facts are
supported adequately by admissible evidence and are uncontroverted. They are
“admitted to exist without controversy” for the purposes of resolving Defendants’
Motion for Summary Judgment. See L.R. 56-3.

Defendant is a motor carrier that employs truck drivers, such as Plaintiff, to


transport freight across the United States. (Doc. No. 200 at 2.) Most of
Defendant’s truck drivers operate as part of a two-driver team assigned to a single
tractor. (Id.) Defendant encourages its drivers at their orientations never to drive
more than five hours without taking at least 15-minute breaks. (Doc. No. 198-5 at
11, 15; Doc. No. 200 at 12-13.) Drivers are also permitted to take breaks when they
feel fatigued. (Doc. No. 199-3 at 15; 201-1 at 10.) The Parties dispute whether
Defendant’s break policies comply with California law.

Defendant uses a “mileage based” compensation system through which


drivers are paid a certain amount for each mile estimated to be part of their driving
trips. (Doc. No. 200 at 8.) When a shipment becomes available for transport,
Defendant determines the number of miles likely to be driven to transport the load
using estimates generated by the industry-standard software. (Doc. No. 198-4 at 3.)
Defendant then contacts the driver team to assign the shipment and provides the
drivers with information regarding the shipment’s origin, destination, and expected
pick-up and delivery times. (Doc. No. 200 at 2-3.) Defendant also provides the
drivers with the estimated number of miles attributed to the shipment, from which
the drivers’ compensation is based. (Doc. Nos. 198-4 at 3-4; 200 at 2-3.) The

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Parties dispute whether this compensation system includes on-duty tasks other than
driving.

IV. DISCUSSION
A. Meal and Rest Break Claims
1. Meal and Rest Break Requirements under California Law
California’s meal and rest break rules require employers to (1) provide
employees the opportunity to take a 30-minute meal period beginning before the
end of the fifth hour of work and a second 30-minute meal period beginning before
the end of the tenth hour of work, and (2) authorize and permit a net ten-minute rest
period for every four hours of work.1 See Cal. Lab. Code § 512(a); 8 Cal. Code
Regs. §§ 11040(11)(A), 11040(12)(A).

Plaintiff contends that Defendant violated California law by failing to take


affirmative steps to provide employees with meal and rest break periods. As this
Court noted in its Order Decertifying the Meal and Rest Break Period Classes (Doc.
No. 184), the California Supreme Court made clear in Brinker Rest. Corp. v.
Superior Court, 53 Cal. 4th 1004 (2012), that an employer satisfies its obligations
with respect to meal and rest breaks when it “relieves its employees of all duty,
relinquishes control over their activities and permits them a reasonable opportunity
to take an uninterrupted 30-minute break, and does not impede or discourage them
from doing so.” Id. at 1040; see also Doc. No. 184 at 4-5 (reviewing Brinker).
According to Brinker, an employer is not obligated to police employees to ensure

1
These requirements are subject to exceptions depending on the total hours
worked each day. See Cal. Lab. Code § 512(a); 8 Cal. Code Regs. §§
11040(11)(A), 11040(12)(A). The Parties do not contend that those exceptions
are relevant here.

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that meal breaks are taken; rather, the employer must not prevent employees from
taking meal breaks. Id. The Brinker decision made clear that employers could
satisfy this obligation in different ways and that the court did not need to delineate
every instance of compliance. Id. In short, the only affirmative obligation that an
employer has that is relevant here is the obligation is to notify employees of
California’s meal and rest break rules. See Doc. No. 184 at 5 (citing Cal. Labor
Code § 1183(d)). An employer may do this by posting a copy of the rules in a
“conspicuous location frequented by employees during the hours of the workday.”
Cal. Labor Code § 1183(d).

2. Whether Defendant Posted Meal and Rest Break Rules


The Parties dispute whether Defendant ever posted a copy of the relevant
meal and break rules in a conspicuous location. Randy Kopecky, Defendant’s Rule
30(b)(6) designee, testified at his deposition that Defendant posted California’s
break rules in the company’s Fontana terminal. (Doc. No. 198-5 at 15.) Plaintiff
contests that he “did not see any meal and rest break rules posted in the Fontana
terminal” and that “[d]rivers . . . rarely ventured into the Fontana terminal offices.”2
(Doc. No. 199-6.)

Plaintiff’s testimony falls short of meeting his burden to create a genuine


dispute of fact. Whether or not Plaintiff saw the rules posted is not the relevant

2
Defendant contends that the Court should not consider this portion of Plaintiff’s
declaration because it is inconsistent with Plaintiff’s deposition testimony, in
which he states that he would enter the Fontana terminal office to “straighten[]
out” paperwork, such as renewing his parking passes every “one . . . or two
months.” (Doc. No. 201-2 at 32.) The Court, however, views those comments as
consistent. An employee that enters an office only once every two months or only
six times in a calendar year can be said to “rarely” enter that office.

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question; what matters is whether the rules were posted at all. Here, Plaintiff has
not presented any evidence that rebuts Kopecky’s testimony that the rules were
posted in the Fontana terminal. Moreover, as Plaintiff’s job was to transport freight
across the country, the majority of his time was spent inside his truck, not in an
office or terminal. Plaintiff has not pointed to any evidence that there was a more
conspicuous or frequented location where the rules could feasibly be posted.
Accordingly, the Court grants Defendant summary adjudication on this issue.

3. Whether Plaintiff was Required to Remain “On Call” During Breaks


The Parties dispute whether Defendant required Plaintiff to remain “on call”
during his meal and rest breaks. In Augustus v. ABM Sec. Servs., Inc., 2 Cal. 5th
257 (2016), the California Supreme Court stated:

Employees forced to remain on call during a . . . rest period must


fulfill certain duties: carrying a device or otherwise making
arrangements so the employer can reach the employee during a break,
responding when the employer seeks contact with the employee, and
performing other work if the employer so requests. These obligations
are irreconcilable with employees’ retention of freedom to use rest
periods for their own purposes.

Id. at 269. Plaintiff contends that Kopecky’s deposition testimony establishes that
Defendant requires its drivers to remain “on call” during their rest periods. (Doc.
No. 199 at 14.)

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Plaintiff mischaracterizes Kopecky’s deposition. Kopecky testified at his


deposition that drivers use the Qualcomm system inside the trucks to be in
“constant communication with the dispatch.” (Doc. No. 199-4 at 5.) He explained
that “through the Qualcomm system and/or through . . . a cell phone or whatever,
we have pretty much the ability to reach out to them any time we would need to, or
they can reach out to us if they need to.” (Id. at 10.) He noted, however, that the
ability for drivers and dispatch to communicate frequently “doesn’t mean [drivers
are] telling us every movement and everything they do.” (Id. at 10-11.)

Kopecky’s testimony makes clear that Defendant’s dispatcher could reach


drivers in their trucks through the Qualcomm system or by phone. It does not imply
that drivers are required to carry a phone or other communication device while they
are on break. Nor does the testimony suggest that Plaintiff was required to respond
to communications from Defendant during his breaks or that he would have to
discontinue a break to perform work at Defendant’s instruction. Plaintiff has failed
to present any evidence to create a genuine issue of fact as to whether he was
required to remain “on call” during breaks. Accordingly, the Court grants
Defendant summary adjudication on that issue.

4. Whether Defendant Pressured Plaintiff Not to Take Breaks


The California Supreme Court has held that “an employer may not
undermine a formal policy of providing meal breaks by pressuring employees to
perform their duties in ways that omit breaks.” Brinker, 53 Cal. 4th at 1040. “But,
‘[p]roof an employer had knowledge of employees working through meal periods
will not alone subject the employer to liability for premium pay . . . .’” Roberts v.
Trimac Transportation Servs. (W.), Inc., No. C12-05302 HRL, 2013 WL 4647223,

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at *2 (N.D. Cal. Aug. 28, 2013) (citing Brinker, 53 Cal. 4th at 1040). “Rather, an
employee must show that the employer impeded or discouraged the employee from
taking breaks.” Id.

Plaintiff contends that Defendant pressured him to omit breaks by requiring


him to accept all “legal loads” regardless of whether there was enough time to take
breaks, requiring him to maintain an average speed of 50 miles per hour when he
drove, and constantly telling him to “keep the wheels turning.” (Doc. No. 199 at
15-16; Doc. No. 199-6 at 4-6.) In support of those claims, he relies on his
declaration, which he submitted in opposition to Defendant’s Motion for Summary
Judgment. (Doc. No. 199-6.) Before addressing the merits of his claims, the Court
must first review whether it can consider Plaintiff’s newly-submitted declaration.

Is Plaintiff’s Declaration is a Sham?


Defendant argues that the Court should disregard Plaintiff’s newly-submitted
declaration as a “sham” because it is inconsistent with his earlier testimony. “The
general rule in the Ninth Circuit is that a party cannot create an issue of fact by an
affidavit contradicting his prior deposition testimony.” Kennedy v. Allied Mut. Ins.
Co., 952 F.2d 262, 266 (9th Cir. 1991). To apply the rule, a court must make two
determinations:

First, the Court must make a factual determination that the


contradiction [is] actually a sham. This limitation is intended to
ensure the Court does not automatically dispose of every case in
which a contradictory affidavit is introduced to explain portions of
earlier deposition testimony. Second, the inconsistency between a

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party’s deposition testimony and subsequent affidavit must be clear


and unambiguous. A declaration that elaborates upon, explains, or
clarifies prior testimony elicited by opposing counsel on deposition
and minor inconsistencies that result from an honest discrepancy [or]
a mistake . . . afford no basis for excluding an opposition affidavit.

Agricola Baja Best, S. De. R.L. de C.V. v. Harris Moran Seed Co., 44 F. Supp. 3d
974, 984 (S.D. Cal. 2014) (citations omitted); see also In re ConAgra Foods, Inc.,
90 F. Supp. 3d 919, 961 (C.D. Cal. 2015) (“An affidavit is not a sham if: (1) it
‘merely elaborat[es] upon, explain[s] or clarif[ies] prior testimony,’ Messick v.
Horizon Industries, Inc., 62 F.3d 1227, 1231 (9th Cir. 1995); (2) if ‘the witness was
confused at that time of the earlier testimony and provides an explanation for the
confusion’ [Pacific Ins. Co. v. Kent, 120 F. Supp. 2d 1205, 1213 (C.D. Cal. 2000)];
or (3) if the declaration concerns newly discovered evidence, id.”).

Defendant contends that Plaintiff’s newly-submitted declaration is sham


because, at his deposition, Plaintiff testified that: (1) he was able to turn down loads
that did not fit his schedule (Doc. No. 201-2 at 13); (2) he averaged 65 miles per
hour when he drove, and no one employed by Defendant ever told him to use 50
miles per hour as the average for figuring out how quickly he could reach a
destination (id. at 14, 20); and (3) no one employed by Defendant ever told him that
he was not allowed to take breaks, and he explained that his reason for skipping
breaks was that he “was just thinking about money, keeping the truck moving.
That’s what it was all about.” (Doc. No. 198-5 at 43, 48.)

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Although Plaintiff’s newly-submitted declaration appears to create some


inconsistencies with the Plaintiff’s deposition testimony, the inconsistencies are not
clear and unambiguous. For example, while Plaintiff stated during his deposition
that he was able to turn down some loads that did not fit his schedule, that is not
tantamount to testifying he could turn down loads because the schedule did not
incorporate sufficient break time. (See Doc. No. 201-2 at 13 (“If you got to deliver
a load on Thursday . . . and then [the dispatcher] wants you to deliver the new load,
you got to pick up and deliver in another state and deliver it on that same Thursday,
it wouldn’t work.”).) Indeed, Defendant’s driver training materials corroborate
Plaintiff’s claim that he was generally required to accept all loads that could be
delivered on time. The materials note that if a driver fails “to accept a legal
dispatch,” that driver may be disciplined by being “placed at the bottom of the
available trucks for dispatch list” and the refusal would be “documented in the
driver performance file.” (Doc. No. 199-2 at 67.)

Likewise, though Plaintiff testified that no one told him to “use 50 miles per
hour as the average in figuring out how far [he could] drive when doing [his] trip
planning,” that is not the same as testifying that he was never told that he was
required to maintain a minimum average speed of 50 miles per hour. Indeed, the
evidence in the record shows that Defendant has a policy requiring drivers to
average a minimum of 50 miles per hour. Defendant’s “Driver Handbook” states
that drivers “must average 50 mph including fuel stops, driver swaps, meals,
breaks, showers, weigh stations, traffic, etc.” (Doc. No. 199-2 at 70 (emphasis in
original).)

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Finally, Defendant mischaracterizes Plaintiff’s testimony regarding his


motivations for omitting breaks. Plaintiff stated at his deposition that Defendant’s
dispatchers often told him he had to “[keep] the truck moving” and “keep the
wheels rolling,” and that poor traffic or weather could put him at risk of being late.
(Doc. No. 199-3 at 10-11, 16.) He explained that drivers were “frightened” of being
late because they had “to pay their bills.” (Id. at 16.) That testimony, when viewed
in the light most favorable to Plaintiff, appears to show that he felt that he had to
skip breaks to ensure he did not lose his job, not that he skipped breaks to maximize
his pay.

The Court, therefore, finds that Plaintiff’s deposition testimony is not


necessarily inconsistent with his newly-submitted declaration. The Court declines
to find the newly-submitted declaration is a sham and will consider it in assessing
the merits of Plaintiff’s meal and rest break claim. In re ConAgra Foods, Inc., 90 F.
Supp. 3d 919, 961 (C.D. Cal. 2015) (“A court should apply the sham affidavit rule
‘with caution,’ and only in situations where ‘the inconsistency between a party’s
deposition testimony and subsequent affidavit [is] clear and unambiguous.’” (citing
Van Asdale v. International Game Technology, 577 F.3d 989, 998 (9th Cir. 2009))).

Merits of Plaintiff’s Meal and Rest Break Claim


Plaintiff alleges that, “[o]n many occasions, [Defendant’s] delivery deadline
orders and transit time rules did not permit [him] to take [his] meal and rest breaks.”
(Doc. No. 199-6 at 4.) As noted above, he supports that claim with his own
declaration, in which he states that Defendant required him to accept all “legal
loads” regardless of whether there was enough time to take breaks, required him to
maintain an average speed of 50 miles per hour when he drove, and constantly told

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him to “keep the wheels turning.” (Doc. No. 199-6 at 4-5.) Plaintiff also cites to
his deposition testimony in which he made similar claims. (Doc. No. 199 at 15-16.)
Finally, Plaintiff relies on print outs of Defendant’s training materials, which
confirm that Defendant required drivers to accept “legal loads” and maintain an
average speed of 50 miles per hour. (Doc. No. 199 at 15-16.)

The evidence that Plaintiff relies upon is insufficient to meet his burden to
establish a genuine issue of material fact that must be resolved at trial. The Ninth
Circuit “has refused to find a ‘genuine issue’ where the only evidence presented is
‘uncorroborated and self-serving’ testimony.” Villirimo v. Aloha Island Air, Inc.,
281 F.3d 1054, 1061 (9th Cir. 2002). Plaintiff has not presented evidence to
corroborate his claim that Defendant pressured him to skip break periods. Although
the training materials confirm that drivers were required to accept “legal loads” and
maintain an average speed of 50 miles per hour, Plaintiff has presented no
evidence—aside from his own testimony—that those requirements caused
Defendant to assign him trips with mileage and timing requirements that necessarily
forced him to skip breaks. In fact, Plaintiff fails to identify a single trip he took
where he skipped a break due to Defendant’s delivery deadlines and transition time
rules.

Moreover, there is ample evidence in the record that Defendant did, in fact,
encourage Plaintiff to take breaks. Daniel Jeffers, a former driver for Defendant
and currently Defendant’s Safety Trainer, testified that “[n]o one [employed by
Defendant] ever told me not to take a break. In fact, the opposite is true.
[Defendant] encourages drives to take breaks whenever they feel breaks are
necessary.” (Doc. No. 198-4 at 3.) Kopecky, Defendant’s PMK, testified at his

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deposition that drivers are encouraged during their orientations that they should
incorporate breaks into their trips. (Doc. No. 198-5 at 15.)

Plaintiff’s deposition testimony corroborates that of Jeffers and Kopecky.


Plaintiff testified that that no one employed by Defendant ever told him that he was
not allowed to take breaks (Doc. No. 198-5 at 43, 48); that he chose not to pull over
and stop to take a meal break, although he could have if he wanted to, because he
wanted to keep “the truck rolling” (id. at 47-48); and that when he felt fatigued, he
would call dispatch, tell them he was tired, and receive permission to take a break
(Doc. No. 198-5 at 49). In addition, Plaintiff testified that, when he drove, he far
exceeded Defendant’s 50 mile per hour requirement by averaging 65 miles per hour
when he drove. (Doc. No. 204-1 at 3.) Although it may be true that Plaintiff did
not take breaks, the decision appears to have been his and his alone.

The Northern District of California rejected a similar meal break claim in


Roberts v. Trimac Transportation Servs. (W.), Inc., No. C12-05302 HRL, 2013 WL
4647223, (N.D. Cal. Aug. 28, 2013). In Roberts, the plaintiff was a driver for
Defendant Trimac, a trucking service that shipped freight across the United States.
Id. at *1. The plaintiff contended that, despite Trimac having a written break policy,
the company’s “actual policy [was] to discourage meal breaks.” Id. at *4. He
testified that he believed Trimac wanted drivers to complete their work as quickly
as possible and that, due to the time pressures of his job, he did not believe he could
take breaks. Id. The court, however, noted that the plaintiff had testified that “no
one at Trimac ever (1) told him that he was not allowed to take a meal break; (2)
said anything to give him the impression that the company did not want him to take
meal breaks; or (3) said anything to give him the impression that Trimac’s actual

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policy was different than its written policy.” Id. The court also pointed out that the
plaintiff “testified that he had time to take both meal breaks and that he ate
something every day that he worked.” Id. Ultimately, the plaintiff’s uncorroborated
“subjective beliefs about Trimac’s actual policy,” without more, were insufficient to
support a claim that Trimac had a policy of discouraging meal breaks. Id. at *4.

Here, as in Roberts, “[t]he overwhelming evidence in the record is that


[Defendant] not only provided the requisite [opportunity to take] breaks, but also
encouraged employees to take them.” Id. at *5. Much like in Roberts, no one
employed by Defendant told Plaintiff that he could not take breaks and the evidence
in the record establishes that Plaintiff could take breaks when he wanted to take
them.3 At most, the evidence suggests that, despite Defendant’s policy of allowing
breaks, Plaintiff subjectively believed that he should not take breaks. As in Roberts,
Plaintiff’s uncorroborated subjective beliefs about his former employer’s break
policies are insufficient to create a material dispute of fact as to whether the
employer’s actual policy is to discourage breaks. Id. at *4; see also Carrasco v.
C.H. Robinson Worldwide, No. 1:13-cv-01438-LJO-SAB, 2013 WL 6198944, at *9
(E.D. Cal. Nov. 27, 2013) (“Plaintiff’s allegations are insufficient because they
focus on Plaintiff’s actions and do not identify any specific actions by her employer
pertaining to the missed meal breaks and rest breaks.”)

3
Although Plaintiff stated that dispatchers told him to “keep the wheels turning,” he
conceded that the same dispatchers told him to take breaks when he was tired. (Doc.
No. 198-5 at 49).

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5. Summary
Plaintiff has failed to present sufficient evidence that Defendant (1) failed to
post the relevant meal and rest break policies in a conspicuous location, (2) required
Plaintiff to remain on call at all times, or (3) pressured him into skipping breaks.
The Court, therefore, grants Defendant summary adjudication on Plaintiff’s meal
and rest break claim.

B. Minimum Wage Claim


Plaintiff claims that he was not paid the minimum wage because he was paid
on a piece-rate basis for miles driven and was not paid separately for additional
non-driving tasks he performed while on duty. Plaintiff bases that claim on the
“Compensation and Wages” section of Defendant’s Driver Manual, which states
that, “[f]or loads over 100 miles[,] the driver will be paid mileage only. . . . Drivers
will not be compensated for normal duties.” (Doc. No. 199-2 at 63.) The manual
notes that “[n]ormal duties of a driver include: open the doors, spot the trailer,
sweep the trailer, count the freight, wait for the load/unload process, secure the load
and close the doors.” (Id.)

Defendant argues that this is insufficient to create a material dispute as to


whether Plaintiff was paid minimum wage for non-driving tasks. Defendant notes
that the remaining sections of the Driver Manual make clear that, contrary to the
isolated statement focused on by Plaintiff, drivers are separately compensated for a
variety of activities, including loading or unloading a trailer, making subsequent
stops, layovers, and breakdowns. (Id.) Taking those additional provisions into
account, the most logical reading of the “normal duties” provision is that the
“normal duties” are not compensated separately because those duties, which are

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related directly to driving, are already covered by the piece-rate pay based on miles
driven. Cf. Klamath Water Users Protective Ass'n v. Patterson, 204 F.3d 1206, 1210
(9th Cir. 1999) (noting that “[a] written contract must be read as a whole and every
part interpreted with reference to the whole, with preference given to reasonable
interpretations.”).

That reading of the Driver Manual is consistent with Plaintiff’s own


testimony regarding his compensation. Plaintiff testified at his deposition that he
understood the mileage-based compensation system was “designed to cover all of
[his] on-duty driving and not driving time.”4 (Doc. No. 198-5 at 58-59.) Plaintiff
testified that, in addition to driving, his on-duty work activities included picking up
and delivery of freight, performing pre-trip and post-trip inspections, opening and
closing the trailer doors, taking care of the trailers, fueling, and waiting to load or
unload. (Doc. No. 200 at 10.) That testimony is consistent with the declaration of
Alvin Hoggard, a terminal manager for Defendant. Hoggard’s declaration states
that the mileage-based pay system covers “[a]ll of a . . . driver’s on duty driving and
non-driving work activities.” (Doc. No. 198-6 at 4.) He also stated that he explains
this policy to drivers during their orientation. (Id.)

In short, the only evidence Plaintiff has presented in support of his argument
that he was not paid the minimum wage is a single phrase from Defendant’s Driver
Manual, which when read in context does not support his argument. Accordingly,

4
Plaintiff disputes this fact to the degree that it represents a legal conclusion, but
does not controvert it or otherwise show that Plaintiff did not testify in this way.
(Doc. No. 200 at 9-10.)

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the Court finds that Plaintiff has failed to create a material dispute of fact as to
whether he was paid the minimum wage.

Even if the Court were to consider the phrase in the Driver Manual sufficient
to create a material dispute of fact, Plaintiff’s claim would still fail because he has
not presented evidence of specific hours in which he did not receive minimum
wage. See Ayala v. U.S Xpress Enterprises, Inc., No. EDCV 16-137-GW (KKx),
2016 WL 7586910, at *6 (C.D. Cal. Dec. 22, 2016) (noting that, in order to
establish a minimum wage claim, the plaintiff “would have to demonstrate that
there were specific hours in which each putative Class Member did not receive
minimum wage. . . . [M]erely showing that [the defendants] maintained a
compensation system based on mileage does not establish liability for a minimum
wage claim under California law”), adopted as final ruling in Ayala v. U.S Xpress
Enterprises, Inc., No. EDCV 16-137-GW (KKx), 2016 WL 7638165, at *1 (C.D.
Cal. Dec. 27, 2016); Reinhardt v. Gemini Motor Transport, 869 F. Supp. 2d 1158,
1168 (E.D. Cal. 2012) (“[C]ompliance with the minimum wage law is determined
by analyzing the compensation paid for each hour worked; averaging hourly
compensation is not permitted under California Law.” (citing Sheppard v. North
Orange County Regional Occupational Pr., 191 Cal. App. 4th 289, 297 n. 5
(2010))).

In support of his minimum wage claim, Plaintiff submitted an expert


declaration from Brian Kriegler. (Doc. No. 199-7.) Kriegler’s declaration, which is
not a supplement to his earlier report and presents entirely new and different

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opinions, is untimely and therefore inadmissible pursuant to Federal Rule of Civil


Procedure 37(c)(1).5

Plaintiff also offers statements from his declaration his declaration in support
of his minimum wage claim, namely that he was “typically” required to spend
several hours “on standby” at the Fontana terminal waiting for a load assignment,
for his co-driver to arrive for work, or for truck maintenance. (Doc. No. 199-6 at 2-
3.) Those statements are inconsistent with Plaintiff’s deposition testimony, in which
he stated that picking up and delivery of the freight, pre- and post-trip inspections,
and waiting to load or unload were on-duty work activities that were covered by
Defendant’s piece-rate compensation. (Doc. No. 198-5 at 53; Doc. No. 200 at 10.)
Moreover, the statements are so vague that the Court cannot assess to which hours
of work they apply. Plaintiff’s failure to provide dates for any of the “standby”
episodes prevents the Court from determining whether or not those episodes
occurred on days in which Plaintiff was being compensated on a flat week or piece-
rate compensations. Such vague, unsupported claims are insufficient to create a
material dispute of fact.

As Plaintiff has failed to provide sufficient evidence to create a material


dispute as to whether Defendant failed to pay him the minimum wage for non-

5
Even if Kriegler’s declaration were admissible, it does not support Plaintiff’s ar-
gument. The declaration only identifies two of three purported days (June 12,
2007, and June 18, 2007) on which Plaintiff was allegedly on duty and not pro-
vided minimum wage. (Doc. No. 199-7 at 3.) Plaintiff’s payroll records, howev-
er, show that he was not paid on a piece-rate basis on those days, but rather that he
received a flat amount of $350.00 per week for his work. (Doc. No. 199-2 at 20-
21.) Thus, Plaintiff’s minimum wage claim, which is based on Defendant’s piece-
rate compensation, does not apply to those dates.

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driving tasks, the Court grants summary adjudication to Defendants on Plaintiff’s


minimum wage claim.

C. Failure to Timely Pay Wages Due at Termination Claim


Plaintiff claims that Defendant is liable for failure to pay wages pursuant to
California Labor Code sections 201, 202, and 203 because Defendant failed to
compensate him for non-driving work and failed to pay those owed wages upon
termination of his employment. As noted above, Plaintiff has not established that
Defendant failed to compensate him for non-driving work. Accordingly the Court
grants summary adjudication to Defendant as to Plaintiff’s section 201, 202, and
203 claims.

D. Wage Statement Claim


Plaintiff claims that Defendant is liable for violating California Labor Code
section 226 due to Defendant’s failure to provide Plaintiff with wage statements that
show he was not paid for certain non-driving work. In his opposition, Plaintiff
alleges that his statements were deficient because they did not include: (1) the total
hours he worked; (2) the net wages earned; (3) inclusive date of the period for
which he was paid; (4) Defendant’s name and address; and (5) all applicable hourly
rates in effect during the pay period and the corresponding number of hours worked
at each hourly rate. Those allegations appear to be different from how Plaintiff
originally constructed his wage statement claim.

In his operative complaint, Plaintiff states that he is entitled to damages


pursuant to California Labor Code section 226 because Defendant failed to itemize
“all deductions from payment of wages” and “to accurately report total hours

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worked by Plaintiff.” (Doc. No. 56 at 18-19.) Plaintiff confirmed through


discovery that his Labor Code section 226 claim was the “result of a failure to
accurately pay [him] . . . for all the time [he] suffered or [was] permitted to work
without compensation, as well as the failure to pay one extra hour of pay for missed
meal and rest breaks.” (Doc. No. 201-2 at 7.) Hence, Plaintiff’s Labor Code
section 226 claim is rooted in the allegation that his wage statements were defective
because he was not paid for the non-driving hours he worked. He cannot now
create new bases for his section 226 claim to survive summary adjudication. See,
e.g., Wasco Prods. v. Southwall Techs., Inc., 435 F.3d 989, 992 (9th Cir. 2006)
(“[S]ummary judgment is not a procedural second chance to flesh out inadequate
pleadings.”).6

As to Plaintiff’s original claim that Defendant’s failure to provide Plaintiff


with wage statements that show he was not paid for non-driving work violates
Labor Code section 226, Plaintiff has not established that Defendant failed to
compensate him for non-driving work. Accordingly, the Court grants summary
adjudication to Defendant as to Plaintiff’s section 226 claim.

E. UCL Claims
Plaintiff’s UCL claim under Cal. Bus. & Prof. Code section 17200 is
derivative to his other claims. The Court, therefore, grants Defendant summary

6
Even if the Court were to consider Plaintiff’s untimely and improper amendment
to his section 226 claim, it still does not survive summary adjudication because
Plaintiff does not allege he was harmed by any of the newly alleged violations. See
Cal. Lab. Code § 226(e) (authorizing recovery by employees “suffering injury as a
result of a knowing and intentional failure by an employer to” provide properly
itemized statements).

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adjudication as to the UCL claim. See White v. Starbucks Corp., 497 F. Supp. 2d
1080, 1089-90 (N.D. Cal. 2007) (dismissing Section 17200 claim where underlying
claim was invalid).

V. CONCLUSION
For the reasons stated above, the Court GRANTS Defendant’s Motion.

IT IS SO ORDERED.

Dated: 3/30/17
Virginia A. Phillips
Chief United States District Judge

23