Harris v. Vector Marketing Corp.

• Citation: 656 F.Supp.2d 1128
• Decision Date: 04 September 2009
• Docket Number: No. C-08-5198 EMC.,C-08-5198 EMC.
• Court: U.S. District Court — Northern District of California
• Parties: Alicia HARRIS, Plaintiff, v. VECTOR MARKETING CORPORATION, Defendant.

Page 1128

656 F.Supp.2d 1128

Alicia HARRIS, Plaintiff, v. VECTOR MARKETING CORPORATION, Defendant.

No. C-08-5198 EMC.

United States District Court, N.D. California.

September 4, 2009.

COPYRIGHT MATERIAL OMITTED

Craig Steven Hubble, Daniel Hyo-Shik Chang, Larry W. Lee, Diversity Law Group, Sherry Jung, Los Angeles, CA, for Plaintiff.

John H. Lien, John Peter Zaimes, Jordan Seungjin Yu, Reed Smith LLP, Los Angeles, CA, for Defendant.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Docket No. 35.

EDWARD M. CHEN, United States Magistrate Judge.

Plaintiff Alicia Harris has filed a class action lawsuit against Defendant Vector Marketing Corporation, alleging violations of both federal and state employment law. At present, no class has been certified. Currently pending before the Court is Vector's motion for summary judgment or in the alternative, summary adjudication with respect to Ms. Harris's individual claims. Having considered the parties' briefs and accompanying submissions, as well as the oral argument of counsel, the Court hereby GRANTS in part and DENIES in part Vector's motion.

I. FACTUAL & PROCEDURAL BACKGROUND

"Vector is a direct sales company that markets a line of high quality kitchen cutlery, accessories, and sporting knives manufactured by Cutco Cutlery Corporation." Matheson Decl. ¶ 2. "Vector sells and markets Cutco products . . . through the use of Sales Representatives." Matheson Decl. ¶ 4; see also Matheson Depo. at 20 (testifying that Vector also has a catalog program). A significant number of its "Sales Reps" are college students. See Matheson Depo. at 176.

The parties agree that, at one point, Vector hired Ms. Harris to be a Sales Rep to sell the Cutco knives. The parties dispute, however, when Ms. Harris was hired—i.e., before participating in a three-day training or after completing the training. The parties also dispute whether, when hired, Ms. Harris was an employee (Ms. Harris's position) or simply an independent contractor (Vector's position).

Each of the claims asserted in Ms. Harris's complaint are predicated on her being an employee. Those claims are as follows: (1) failure to pay wages in violation of California Labor Code §§ 201 et seq.; (2) failure to pay minimum wages in violation of California Labor Code § 1197; (3) failure to pay minimum wages in violation of the Fair Labor Standards Act ("FLSA"), see 29 U.S.C. § 206; (4) failure to keep and provide accurate pay records in violation of California Labor Code § 226; (5) failure to pay wages owed in a timely fashion at the end of employment in violation of California Labor Code § 201 et seq.; (6) compelling or coercing an employee to patronize Vector's business in violation of California Labor Code § 450; (7) failure to reimburse in violation of California Labor Code § 2802; (8) civil penalties based on violations of the California Labor Code Private Attorneys General Act, see Cal. Lab.Code § 2698 et seq.; and (9) unfair competition in violation of California Business & Professions Code § 17200.

II. EVIDENTIARY OBJECTIONS

As a preliminary matter, the Court addresses the parties' evidentiary objections. The Court addresses only the main objections that are relevant to resolution of the motion for summary judgment.

A. Plaintiff's Objections

First, Ms. Harris objects that the declarations of other Sales Reps are irrelevant because the motion for summary judgment concerns only her individual claims, not any class claims. The objection is overruled. If, for example, all of the Sales Reps testify that they were not hired until after the training while Ms. Harris testifies that she was hired before the training, then the trier of fact might conclude that Ms. Harris is not credible, at least as to this point. Of course, at the summary judgment stage, the Court makes no credibility determinations. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ("Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whe[n] he is ruling on a motion for summary judgment. . . . The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor."); Albarran v. New Form, Inc. (In re Barboza), 545 F.3d 702, 707 (9th Cir.2008) ("A court `generally cannot grant summary judgment based on its assessment of the credibility of the evidence presented . . .' `[A]t the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.'").

Second, Ms. Harris objects that the declarations of other Sales Reps, as well as the Arlie and Leahy declarations, contain legal conclusions because they purport to interpret the Sales Rep Agreement. The objection is overruled. The Sales Reps and District Managers may testify as to what they understood the agreement to mean although, ultimately, the Court will be the one to interpret the agreement.

Third, Mr. Harris objects to a document attached to the Matheson declaration ("Standards for Advertising") on the ground that it was not previously produced. The objection is essentially moot. Even without the document, Mr. Matheson may testify as to what Vector's standards of advertising were. That being said, regardless of what Vector's standards were, that does not mean that the standards were always complied with—i.e., it is still possible that an advertisement was composed which claimed that Sales Reps would be compensated on an hourly basis (as Ms. Harris contends).

Fourth, Ms. Harris objects to ¶ 8 of the Matheson declaration on the basis of hearsay. In ¶ 8, Mr. Matheson testifies that, based on his communications with Sales Managers, he believes that candidates who interview well are offered the opportunity to participate in the three-day training and that candidates are encouraged to participate in the training, but that candidates who do not participate in the training have still been offered positions as Sales Reps. The objection is overruled. While "an affidavit that contains facts that could only be presented at trial through evidence that violates the proscriptions against hearsay and statements made without personal knowledge should not be admitted at the summary judgment stage[,] . . . an affidavit [that] points to the testimony of another witness or source of competent evidence" may be considered for purposes of summary judgment. 11-56 Moore's Fed. Prac.—Civ. § 56.14[1][d]. Also, it should be noted that Mr. Matheson was deposed as Vector's 30(b)(6) witness. Cf. id. § 56.14[1][c] (stating that "[t]he testimony of a Rule 30(b)(6) corporate agent deponent may be presented on motion for summary judgment, even though not based on personal knowledge, because a Rule 30(b)(6) witness need not have personal knowledge of the facts to which he or she testifies."). Finally, the objection is essentially moot because District Managers have provided declarations to the same effect. See Arlie Decl. ¶ 14 ("Candidates are not required to participate in the training program in order to be retained as a Sales Representative by Vector. One can become a Sales Representative without going through the training program. Conversely, an individual may participate in the training program but not receive an offer to become a Sales Representative."); Leahy Decl. ¶ 13 ("An individual may participate in the training program but not receive an offer to become a Sales Representative").

Finally, Ms. Harris argues that the declarations of the other Sales Reps should be stricken because Vector acted improperly in seeking out the declarations without fully informing the Sales Reps about the nature of the litigation (e.g., that it is a class action) and the possible consequences of their actions (e.g., that their own claims against Vector might be compromised should Ms. Harris prevail on the class action). The request is denied. First, the case authority that Ms. Harris cites is largely inapplicable. The cases largely concern motions to limit precertification communications between the defendant and the absent class members. No such motion was made by Ms. Harris in the instant case. If the Court were to strike the declarations, that would likely have to be done as a sanction pursuant to the Court's inherent authority. Second, and more important, the Sales Reps who were deposed indicated in their depositions that they would still have submitted the declarations and/or stood by their declarations. See Carrasco Depo. at 34; Lewis Depo. at 22-23.

B. Defendant's Objections

First, Vector objects that, in numerous places, Ms. Harris has mischaracterized deposition testimony. The objection is overruled as the Court is able to view the deposition testimony and evaluate the testimony on its own.

Second, Vector objects to Ms. Harris's testimony that she saw a Vector advertisement (whether a flyer or an advertisement oncraigslist.com) listing compensation as $16 an hour. This objection is, in essence, moot. The parties agree that Sales Representatives were not compensated on an hourly basis per se, and the Court's analysis below assumes they were not.

Third, Vector argues that various statements that Ms. Harris claims were made by her Sales or District Managers are not admissible. According to Vector, these statements do not qualify as admissions of a party-opponent because the Sales and District Managers are independent contractors. In support of this contention, Vector relies primarily on Merrick v. Farmers Insurance Group, 892 F.2d 1434, 1440 (9th Cir.1990) (concluding that statements of insurance agents and district manager were properly rejected as hearsay because plaintiff "did not establish that [they] were `agents' of [defendant] as opposed to independent contractors; nor did he show that their statements...