Hess v. Suzuki, 1:10-cv-01821-AWI-BAM

Decision Date14 September 2012
Docket Number1:10-cv-01821-AWI-BAM
PartiesEDNA HESS, Plaintiff, v. MADERA HONDA SUZUKI; HARRY D. WILSON, INC.; ROBERT D. WILSON; and DOES 1 through 10, inclusive, Defendants.
CourtU.S. District Court — Eastern District of California

(Docs. 24-24-10, 30)


Defendants Madera Honda Suzuki et al. have filed a motion for summary judgment or summary adjudication in the alternative. For reasons discussed below, the motion shall be denied.


On October 1, 2010, plaintiff Edna Hess (hereinafter referred to as "Plaintiff") filed her complaint against defendants Madera Honda Suzuki, a California corporation, Harry D. Wilson, Inc., a California corporation, Robert D. Wilson, an individual, and Does 1 through 10, inclusive, asserting causes of action for (1) violation of California Labor Code § 201, (2) violation of the federal FairLabor Standards Act, 29 U.S.C. § 206, (3) violation of California Labor Code § 226, (4) violation of California Labor Code § 1174, (5) violation of California Labor Code § 227.3, (6) violation of California Labor Code § 1197, (7) violation of California Labor Code §§ 226.7 and 512 and Industrial Welfare Commission (IWC) Wage Order 4-2001, (8) violation of California Labor Code § 510 and IWC 4-2001, (9) violation of California Business and Professions Code §§ 17200 et seq., (10) wrongful termination in violation of public policy, (11) penalties under California Labor Code § 203 and (12) penalties under 29 U.S.C. § 216. The first and third through eleventh causes of action were asserted against the corporate defendants and Does 1-10, inclusive; the second and twelfth causes of action were asserted against all defendants. In the complaint, Plaintiff alleged as follows:

"Plaintiff was hired as a [sic] office manager by Defendants MADERA HONDA SUZUKI and HARRY D. WILSON, INC. on or about September 1, 2006. Defendant ROBERT D. WILSON made the decision to hire Plaintiff. As an office manager, Plaintiff performed a variety of routine and clerical tasks including making deposits, creating payroll sheets, answering phones, cashiering, cleaning restrooms, making employee schedules, distributing the mail and entering inventory."

Plaintiff further alleged:

"Initially, Plaintiff was mischaracterized as an exempt employee and paid a salary of $2,000 bi-monthly. Plaintiff was actually a non-exempt employee, performing only routine and clerical duties. Beginning the pay period of April 26, 2007 - May 9, 2007 and continuing thereafter up until the time of Plaintiff's discharge, Defendant ROBERT D. WILSON authorized, and Plaintiff received, a raise and her salary was increased to $2,769.23 bi-monthly."

Plaintiff further alleged:

"Plaintiff was provided regular pay checks every two weeks from the date of her hire in September 2006 until January 2008. Beginning January 2008 and continuing intermittently up to Plaintiff's termination in February of 2010, Defendants, and each of them, failed and refused to pay Plaintiff wages due and owing to her. Defendants willfully failed to pay Plaintiff a total of 40 weeks worth of wages between January 18, 2008 and January 29, 2010."

Plaintiff further alleged:

"Plaintiff confronted . . . ROBERT D. WILSON about the Defendants' failure to pay Plaintiff her wages and demanded payment of wages earned. Defendant ROBERT D. WILSON was involved in, and had control over, the amount of compensation Plaintiff received. When confronted by Plaintiff, ROBERT D. WILSON responded that the company was having financial difficulties and assured Plaintiff that she would be compensated when the company's financial condition improved."

Plaintiff further alleged:

"On or about January 29, 2010, Defendants[ ], by and through ROBERT D. WILSON, terminated Plaintiff's employment without good cause. [¶] On or about February 24, 2010, Plaintiff made a written demand to Defendants requesting payment of all wages due and owing for those 40 pay periods Defendants unlawfully withheld Plaintiff's wages. To date, Defendants have willfully refused to pay Plaintiff those wages due and owing to her."

Plaintiff further alleged:

"On or about March 30, 2010, Plaintiff made a demand . . . requesting accurate itemized statements in writing showing: (1) her gross wages earned; (2) total hours worked by Plaintiff; (3) all deductions provided; (4) net wages earned; (5) inclusive dates of the period for which Plaintiff was paid; (6) the names and address of the legal entity that is the employer; and (7) all applicable hourly rates in effect during each pay period and the corresponding number of hours worked at each hourly rate by Plaintiff. Plaintiff further requested any and all documents and instruments signed by her, relating to her employment under Labor Code Section 432. To date, Defendants have failed to comply with Plaintiff's requests."

On July 13, 2012, defendants Harry D. Wilson, Inc. dba Madera Honda Suzuki (erroneously sued as Madera Honda Suzuki and Harry D. Wilson, Inc.) and Robert D. Wilson (hereinafter referred to as "Defendants") filed their motion for summary judgment or summary adjudication in the alternative pursuant to Federal Rule of Civil Procedure 56. Plaintiff filed her opposition to Defendants' motion for summary judgment or summary adjudication on August 6, 2012. Defendants filed their reply to Plaintiff's opposition to the motion for summary judgment on August 13, 2012.


"A party may move for summary judgment, identifying each claim or defense - or the part of each claim or defense - on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The moving party bears the initial burden of "informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact."

Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see Fed. R. Civ. P. 56(c)(1)(A). "Where the non-moving party bears the burden of proof at trial, the moving party need only prove that there is an absence of evidence to support the non-moving party's case." In re Oracle Corp. Securities Litigation, 627 F.3d 376, 387 (2010) (citing Celotex, supra, at p. 325). If the moving party meets its initial burden, the burden shifts to the non-moving party to present evidence establishing the existence of a genuine dispute as to any material fact. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86, 106 S.Ct. 1348, 89 L.Ed.2d 538. A court ruling on a motion for summary judgment must construe all facts and inferences in the light most favorable to the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Even if the motion is unopposed, the movant is not absolved of the burden to show there are no genuine issues of material fact, Henry v. Gill Industries, Inc., 983 F.2d 943, 949-50 (9th Cir. 1993), although the court may assume the movant's assertions of fact to be undisputed for the purposes of the motion and grant summary judgment if the facts and other supporting materials show the movant is entitled to it. See Fed. R. Civ. P. 56(e)(2), (3).


1. Defendants' first argument (no liability under the Fair Labor Standards Act) - As a threshold matter, Defendants move for summary adjudication of the second and twelfth causes of action for violation of the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201 et seq., and penalties under section 216 of the FLSA, 29 U.S.C. § 216. "The FLSA imposes minimum labor standards on employers to promote 'the health, efficiency, and general well-being of workers.' " Christopher v. SmithKline Beecham Corp., 635 F.3d 383, 389 (9th Cir. 2011) (quoting 29 U.S.C. § 202(a)). Section 206, the minimum wage provision invoked by Plaintiff, provides in pertinent part: "Every employer shall pay to each of his employees who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in theproduction of goods for commerce, wages at the following rates: [¶] (1) except as otherwise provided in this section, not less than-- [¶] (A) $5.85 an hour, beginning on the 60th day after May 25, 2007; [¶] (B) $6.55 an hour, beginning 12 months after that 60th day; and [¶] (C) $7.25 an hour, beginning 24 months after that 60th day[.]" 29 U.S.C. § 206(a) (emphasis added). Plaintiff alleges Defendants violated this provision by failing to pay her for 40 weeks' worth of wages. Defendants now contend summary adjudication must be granted because Plaintiff is a co-owner/shareholder of Harry D. Wilson, Inc., and is therefore not an "employee" of Defendants as that term is defined in the FLSA.

With certain exceptions not applicable here, the FLSA defines "employee" simply to mean "any individual employed by an employer," 29 U.S.C. § 203(e)(1), and an " '[e]mployer' includes any person acting directly or indirectly in the interest of an employer in relation to an employee[.]" Id., § 203(d). The Ninth Circuit, "in deciding if an employer-employee relationship exists, has applied an 'economic reality' test which identifies four factors: [¶] whether the alleged employer (1) had the power to hire and fire the employees, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records." Gilbreath v. Cutter Biological, Inc., 931 F.2d 1320, 1324 (9th Cir. 1991) (citing Bonnette v. California Health & Welfare Agency, 704 F.2d 1465, 1470 (9th Cir. 1983...

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