Cruz v. Cedar Constr. & Dev.

• Docket Number: B315203
• Decision Date: 26 January 2024
• Parties: CESAR CRUZ, Plaintiff and Appellant, v. CEDAR CONSTRUCTION & DEVELOPMENT, INC. et al., Defendants and Respondents
• Court: California Court of Appeals

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CESAR CRUZ, Plaintiff and Appellant, v. CEDAR CONSTRUCTION & DEVELOPMENT, INC. et al., Defendants and Respondents

B315203

California Court of Appeals, Second District, Eighth Division

January 26, 2024

NOT TO BE PUBLISHED

APPEAL from a judgment and orders of the Superior Court of Los Angeles County No. 19STCV40718. William F. Fahey, Judge. Judgment vacated and orders affirmed in part, reversed in part, and remanded with directions.

Employee Justice Legal Group, Kaveh S. Elihu and Daniel J Friedman for Plaintiff and Appellant.

Horowitz &Clayton, Craig A. Horowitz and Wayne D. Clayton for Defendants and Respondents.

GRIMES, J.

SUMMARY

Plaintiff Cesar Cruz sued Cedar Construction &Development, Inc. (defendant or Cedar) and its owner, Paul Azzi (collectively defendants). In the operative first amended complaint, plaintiff asserted he was misclassified as an independent contractor. Plaintiff alleged multiple wage and hour violations (including failure to pay wages and overtime compensation and failure to provide rest periods (but not failure to provide meal periods), unfair competition, and a representative claim on behalf of his coworkers for civil penalties under the Private Attorneys General Act of 2004 (PAGA, Lab. Code, § 2698 et seq.).

The trial court granted defendants' motion for summary judgment. The court concluded it was undisputed plaintiff did not work for defendants within the PAGA period (one year plus 65 days). The court further found no triable issues concerning plaintiff's status as an independent contractor under the test established in Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th 903, 957 (Dynamex). The latter finding resulted principally from the trial court's refusal to consider plaintiff's evidence on the ground it was improper for plaintiff to state, in his reply separate statement, that defendants' facts were "irrelevant" and/or "disputed in part."

We agree with the trial court that there was no evidence plaintiff suffered a Labor Code violation during the PAGA period, so he had no standing under PAGA as an "aggrieved employee" against whom "one or more of the alleged violations was committed." (Lab. Code, § 2699, subds. (a) &(c).) But the trial court erred, with respect to plaintiff's individual claims, in refusing to consider plaintiff's evidence and therefore finding no triable issues of fact as to whether plaintiff was an independent contractor under the Dynamex test. We therefore reverse the grant of summary adjudication on plaintiff's individual claims.

Plaintiff also appeals the trial court's denial of his motion to file a second amended complaint, adding a class action claim for meal period violations. We find no abuse of discretion in that ruling.

FACTS

Plaintiff filed his complaint on November 12, 2019, and the operative first amended complaint on January 7, 2020. As mentioned, the operative complaint alleged multiple Labor Code violations and other causes of action, including a representative PAGA claim.

We begin with a few facts that are not in dispute, and will recount others in connection with our discussion of the legal points at issue.

Defendant is "a general contractor construction company." Plaintiff has worked in the construction industry for about 15 years and is an undocumented immigrant. Plaintiff testified that in 2011, he met with defendant Azzi and talked about "potentially getting work projects from Cedar" and "that I would work at Cedar." He told Mr. Azzi that he was a plumber and a handyman. Plaintiff testified that his understanding at the time about the arrangement between him and Cedar was "[t]hat I would work directly with Cedar Construction."

Plaintiff testified that "no one at Cedar" supervised his plumbing work or his handyman work for Cedar, which began in 2012. According to Mr. Azzi, "[a]s of September 8, 2018, [plaintiff] voluntarily ceased accepting offers to work on plumbing and handyman projects for Cedar." (Plaintiff testified he stopped doing so "in early September 2018," because of a "verbal attack" by Mr. Azzi, who told plaintiff that he was "worthless or useless.")

This litigation ensued and ended with the trial court's grant of summary judgment to defendants. Plaintiff filed a timely appeal from the judgment.

DISCUSSION

1. The Standards of Review

A defendant moving for summary judgment must show "that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action." (Code Civ. Proc., § 437c, subd. (p)(2).) Summary judgment is appropriate where "all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Id., subd. (c).)

Our Supreme Court has made clear that the purpose of the 1992 and 1993 amendments to the summary judgment statute was" 'to liberalize the granting of [summary judgment] motions.'" (Perry v. Bakewell Hawthorne, LLC (2017) 2 Cal.5th 536, 542.) It is no longer called a "disfavored" remedy. (Ibid.) "Summary judgment is now seen as 'a particularly suitable means to test the sufficiency' of the plaintiff's or defendant's case." (Ibid.) On appeal, "we take the facts from the record that was before the trial court ....' "We review the trial court's decision de novo, considering all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained." '" (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.)

We review the trial court's denial of plaintiff's motion for leave to amend the complaint for abuse of discretion. (Foroudi v. The Aerospace Corp. (2020) 57 Cal.App.5th 992, 1000.)

2. Summary Adjudication of Plaintiff's PAGA Claim

PAGA authorizes an "aggrieved employee" to bring an action "on behalf of himself or herself and other current or former employees." (Lab. Code, § 2699, subd. (a).) An "aggrieved employee" is defined as "any person who was employed by the alleged violator and against whom one or more of the alleged violations was committed." (Id., subd. (c).)

"The statute of limitations under PAGA is one year from the date of the last violation." (LaCour v. Marshalls of California, LLC (2023) 94 Cal.App.5th 1172, 1184; Code Civ. Proc., § 340, subd. (a).) "An alleged aggrieved employee cannot file a PAGA action until after the aggrieved employee exhausts PAGA remedies by filing a notice with the LWDA [Labor and Workforce Development Agency], and the statute of limitations is tolled up to 65 days to give the LWDA a chance to respond to the notice." (LaCour, at p. 1185; see Lab. Code, § 2699.3, subds. (a), (d).)

A plaintiff does not have standing to bring a PAGA representative claim for alleged violations occurring after he is no longer employed. (See Robinson v. Southern Counties Oil Co. (2020) 53 Cal.App.5th 476, 484 ["Here, [the plaintiff] purports to bring a representative action based on violations alleged to have occurred . . . after January 27, 2018. By then, however, [the plaintiff] was no longer employed by [the defendant] and thus was not affected by any of the alleged violations."].)

Here, it is undisputed that, after September 8, 2018, plaintiff no longer performed any work for defendants in any capacity. Plaintiff filed his PAGA complaint on November 12, 2019, the last possible day to do so (the 430th day (365 plus 65) after September 8, 2018). This means that, unless plaintiff worked for defendant on September 8, 2018, the last day within the PAGA period, he was not "an aggrieved employee."

Defendants' undisputed material fact (UMF) No. 6 stated that plaintiff "ceased accepting projects from Cedar Construction on September 8, 2018." UMF No. 6 was supported by a declaration from Mr. Azzi that "[a]s of September 8, 2018 [plaintiff] voluntarily ceased accepting offers to work on plumbing and handyman projects for Cedar." From this statement, we may reasonably infer that plaintiff did not work on that day, and therefore was not "an aggrieved employee" at any time within the PAGA limitations period. As we know, the summary judgment statute specifies that once a defendant has met his or her burden of showing that an element of a cause of action cannot be established or that there is a complete defense, the burden shifts to the plaintiff to show a triable issue of material fact exists, and to do so "shall set forth the specific facts showing that a triable issue" exists. (Code Civ. Proc., § 437c, subd. (p)(2).)

Plaintiff, however, produced no evidence that he performed any work for defendants on September 8 or that he suffered a Labor Code violation on that day. Plaintiff responded to defendants' UMF No. 6 by stating it was "Irrelevant" and "Disputed in Part." Plaintiff continued: "Plaintiff timely filed his LWDA PAGA letter and timely filed his Complaint after the sixty-five day tolling period expired. It is immaterial whether Plaintiff worked for Cedar within the previous year of the PAGA period." The only "evidence" he cites for this point is "Doc # 87; Plaintiff's Complaint."

Under the summary judgment statute, the plaintiff "shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists." (Code Civ. Proc., § 437c, subd. (p)(2).) "[S]pecific facts" are required (ibid.), and plaintiff submitted no declaration stating he worked on September 8, or otherwise controverting Mr. Azzi's declaration, and cited no other evidence on the point. We can therefore find no error in the trial court's conclusion that plaintiff "fails to proffer evidence" of a Labor Code violation "within the PAGA period," and "it is undisputed that [plaintiff] did not work for defendants during the PAGA period."

Plai...