DAVID O. CARTER UNITED STATES DISTRICT JUDGE

ORDER GRANTING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT [102] AND DENYING PLAINTIFF'S EX PARTE APPLICATION TO EXCLUDE DEFENDANT'S EVIDENCE [105]

Before the Court is Defendant Bank of America National Association's ("BOA" or "Defendant") Motion for Summary Judgment ("Def. MSJ") (Dkt. 102). The Court heard oral arguments on October 28, 2019.

I. BACKGROUND

This case arises out of events related to Plaintiff's employment with BOA. See Fifth Amended Complaint ("FAC") (Dkt. 58). Plaintiff alleges several claims related to alleged failure to pay adequate wages in violation of California and Federal labor laws. Id.

A. Facts

Plaintiff worked for Defendant BOA as a full-time, non-exempt employee from February 1992 to her termination on September 12, 2016. Plaintiff worked as a call center representative and on the Auto Recovery Team in BOA's Brea, California call center. Plaintiff alleges that, during her work with BOA, Defendant failed to pay regular wages and overtime to her. FAC ¶ 39. Plaintiff also alleges that meal, rest breaks, and accurate wage statements were not provided in accordance with the law. Id. ¶¶ 48-53.

BOA maintains timekeeping policies. Plaintiff's Statement of Genuine Disputes of Material Facts ("Pl. GDF") (Dkt. 104-2) ¶ 4. Under these policies, employees are responsible for recording their own time. Id. ¶ 5. These policies required the employees report accurate shift times. Id. ¶ 7. BOA then relies on those records to pay employees for time worked. Id. ¶ 8. The policy required employees to "enter all time to the minute, including start and end times, meal period and any time off." Id. ¶ 11. Plaintiff knew and received training on these policies. Id. ¶¶ 21-22. Plaintiff alleges Defendant failed to pay wages for pre-shift and post-shift activities (and activities performed after coming back from lunch) that were required by law. FAC ¶¶ 39, 57. Plaintiff never informed her supervisor that she was not accurately recording her time. Pl. GDF ¶ 15. Despite this, Plaintiff alleges that Defendant charged its managers with verifying time records and that Defendant's managers instructed Plaintiff to enter her schedule start time on her time sheet instead of the time she was working. Id. ¶¶ 24, 31. Defendant disputes this. Id.

Plaintiff was scheduled to take a meal break four hours and forty-five minutes into her shift. Id. ¶ 41. Plaintiff never complained to her supervisor that she was unable to take any of her meal periods or that any break was interrupted or late. Id. ¶ 46. Plaintiff never informed her supervisor that her recorded meal periods were not accurate. Id. ¶ 47. However, Plaintiff contends that she sometimes started her meal breaks later than her scheduled time due to phone calls that would run long. Id. ¶ 48. This meant she would sometimes have a meal break after working for more than five hours. Id. Plaintiff and Defendant disagree as to whether Plaintiff was told to record lunches as scheduled instead of as actually attended. Id. ¶¶ 49, 52.

B. Procedural History

On March 23, 2019, Plaintiff filed the operative Fifth Amended Complaint in the instant action (Dkt. 58). In the Complaint, Plaintiff brings the following eight claims:

(1) failure to pay minimum wages in violation of California Labor Code § 1197;

(2) failure to accurately pay overtime wages in violation of California Labor Code § 510;

(3) failure to provide second meal periods in violation of California Labor Code §§ 512 and 226.7;

(4) failure to provide rest periods in violation of California Labor Code § 226.7(a);

(5) failure to timely pay wages in violation of California Labor Code § 203;

(6) failure to provide accurate wage statements in violation of California Labor Code § 226(a);

(7) unfair competition in violation of California Business and Professions Code § 17200, et. seq. ("UCL"); and

(8) failure to pay overtime wages in violation of the Fair Labor Standards Act ("FLSA") in violation of 29 U.S.C. §§ 206 et. seq.;

On October 7, 2019, Defendant filed its Motion for Summary Judgment ("Def. MSJ") (Dkt. 102). On October 15, 2019, Plaintiff opposed Defendant's MSJ ("Def. MSJ Opp'n") (Dkt. 104). On October 21, 2019, Defendant replied ("Def. MSJ Reply") (Dkt. 109).

On October 16, 2019, Plaintiff filed an Ex Parte Motion to Exclude Defendant's Evidence ("Mot. to Exclude") (Dkt. 105). On October 17, 2019, Defendant opposed ("Opp'n to Mot. to Exclude") (Dkt. 106).

II. LEGAL STANDARD

Summary judgment is proper 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). Summary judgment is to be granted cautiously, with due respect for a party's right to have its factually grounded claims and defenses tried to a jury. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A court must view the facts and draw inferences in the manner most favorable to the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1992); Chevron Corp. v. Pennzoil Co., 974 F.2d 1156, 1161 (9th Cir. 1992). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact for trial, but it need not disprove the other party's case. Celotex, 477 U.S. at 323. When the non-moving party bears the burden of proving the claim or defense, the moving party can meet its burden by pointing out that the non-moving party has failed to present any genuine issue of material fact as to an essential element of its case. See Musick v. Burke, 913 F.2d 1390, 1394 (9th Cir. 1990).

Once the moving party meets its burden, the burden shifts to the opposing party to set out specific material facts showing a genuine issue for trial. See Liberty Lobby, 477 U.S. at 248-49. A "material fact" is one which "might affect the outcome of the suit under the governing law . . . ." Id. at 248. A party cannot create a genuine issue of material fact simply by making assertions in its legal papers. S.A. Empresa de Viacao Aerea Rio Grandense v. Walter Kidde & Co., Inc., 690 F.2d 1235, 1238 (9th Cir. 1982). Rather, there must be specific, admissible, evidence identifying the basis for the dispute. See id. The Court need not "comb the record" looking for other evidence; it is only required to consider evidence set forth in the moving and opposing papers and the portions of the record cited therein. Fed. R. Civ. P. 56(c)(3); Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1029 (9th Cir. 2001). The Supreme Court has held that "[t]he mere existence of a scintilla of evidence . . . will be insufficient; there must be evidence on which the jury could reasonably find for [the opposing party]." Liberty Lobby, 477 U.S. at 252.

III. DISCUSSION

A. Defendant's MSJ

In Defendant's MSJ, it argues that BOA maintained lawful timekeeping policies and had no actual or constructive knowledge that Plaintiff was not accurately reporting her time. Def. MSJ at 1-2. Further, Defendant argues that all wage statements were accurate as to wages actually paid to Plaintiff in accordance with the law. Def. MSJ at 2. In her Opposition, Plaintiff argues that there are issues of genuine dispute as to each of the claims because Defendant had knowledge that Plaintiff worked more than she recorded. Def. MSJ Opp'n at 7. In fact, Plaintiff alleges she was instructed to enter scheduled times instead of actual times worked. Id.

1. Plaintiff's First, Second, and Eighth Claims for Unpaid Wages

Defendant argues that "Plaintiff's minimum and overtime wage claims are based on Plaintiff's purported off-the-clock work." Def. MSJ at 10. However, assuming Plaintiff did work more than she indicated in her records, Defendant argues it is not liable as a matter of law because "[u]nder California law, an employer is entitled to rely on the time records submitted by its employees to determine the number of hours worked, unless the employer knows (i.e., has direct knowledge) or should have known (i.e., has constructive knowledge) that the time records are inaccurate." Id. Next, Defendant argues that Plaintiff's overtime causes of action fail for the additional reason that any underpayment has been "setoff" by alleged overpayment for paid time off (PTO) that Defendant has already paid Plaintiff. Id. at 14.

Plaintiff argues that Defendant had actual or constructive knowledge that Plaintiff was not being paid for the hours she actually worked. See generally Def. MSJ Opp'n. As a preliminary matter, Plaintiff alleges she spent time each day performing work-related tasks that were not recorded in her time sheet. Id. at 4. For example, she would spend time turning on and off her computer before clocking in and after clocking out each day. Id. at 4-5. She would also take calls during meal periods. Id. at 5. For these reasons, Plaintiff was not paid for all of the hours she worked.

Plaintiff argues there are triable facts as to these causes of action for several reasons. First, Plaintiff argues that Defendant maintains a system to track and monitor Plaintiff's work activities. Id. at 2-3. Further, managers use "IEX Data Reports to cross-check employees' timesheets to ensure the accuracy of" timekeeping. Id. at 3. The managers are also "required to verify, validate, and ensure that employees' times are accurately recorded." Id. Plaintiff's manager—Mr. Wilfredo Paguio ("Paguio") confirmed he monitored IEX Data reports and approved timesheets. Id. at 3-4. Furthermore, Plaintiff alleges Paguio instructed her to "record her time only as it was shown in her schedule." Id. at 4. Plaintiff also alleges Defendant maintained policies that discouraged employees from accurately recording time because "[a]n employee who does not adhere to her scheduled times is subject to discipline" and "employees must get pre-approval for working overtime and are subject to discipline for working over their scheduled hours without approval." Id. at 5.

An employer must pay at least minimum wage to its employees for all hours worked, meaning all time that the employee is subject to the employer's control or is suffered or permitted to work. Morillion v. Royal Packing Co., 22 Cal. 4th 575, 584-85 (2000). "To prove an off-the-clock claim, a plaintiff must demonstrate that she actually worked off the clock, that she was not compensated for it, and that the employer was aware or should have been aware that she was performing off the clock work." Ortiz v. CVS Caremark Corp., No. C-12-05859 EDL, 2014 WL 1117614, at *4 (N.D. Cal. Mar. 19, 2014). This definition is equivalent to the FLSA obligation to pay for work the employer "knows or has reason to believe" the employee performs. Morillion, 22 Cal. 4th at 585 (quoting 29 C.F.R. § 785.11 (1998)).

While an employer's actual or constructive knowledge of the hours its employees work is an issue of fact, the court on summary judgment must determine whether evidence has been presented that would support a finding of such knowledge. Jong v. Kaiser Health Found., Inc., 226 Cal. App. 4th 391, 399 (2014). Testimony that is conclusory or speculative is insufficient to create a genuine issue of material fact. White v. Starbucks Corp., 497 F. Supp. 2d 1080, 1083-85 (N.D. Cal. 2007). California courts recognize a presumption that employees are doing no work while clocked out, which employees have the burden to rebut. Brinker Rest. Corp. v. Super. Ct., 53 Cal. 4th 1004, 1051 (2012). To rebut this presumption, a plaintiff must show the defendant "knew or should have known off-the-clock work was occurring." Id.

Looking at the facts and drawing all inferences in the manner most favorable to the non-moving party, the Court finds that Defendants have not shown an absence of a genuine dispute of material fact as to whether Defendant knew or should have known that the off-duty work was occurring. First, the Court finds that Defendant is entitled to a presumption that Plaintiff was not performing work while clocked out. Id. Next, the Court finds that Plaintiff rebuts the presumption by presenting a triable issue as to whether BOA had actual or constructive knowledge that off-the-clock work was occurring.

Plaintiff alleges Defendants were in possession of records showing that Plaintiff was performing off-the-clock work. Def. MSJ Opp'n at 9. For example, Plaintiff alleges Defendant monitored the Plaintiff's activities in real time. Paguio, her manager, had access to the IEX Data system that displays for the manager "real-time adherence to the [employee work] schedule." Mauro Decl., Exh., B, Medina Depo., at 60:6-13 (Dkt. 104-1). Furthermore, Paguio, through the IEX program, had the ability to cross check hours indicated on time sheets and hours actually worked. Id., Exh. C, Paguio Depo., at 108:11 - 109:15. (Q: Do you ever use the exchange program. . . to determine if there was any activity before the scheduled start time that was not recorded on the time sheets?" A: "Well, I can if I want to because it will show in there."). Next, Plaintiff argues Paguio in fact would check timesheets, including Plaintiff's timesheet, for accuracy. Id. at 102:23 - 103:11 (Q: And you will use that [IEX] as a cross-check to confirm the information that's input in the timesheets by the employees? A: Yes. Q: So any of the timesheets you've submitted, you've done work to confirm the accuracy of those correct? A: Correct. Q: Is that how you were trained? . . . . A. Yes.). Finally, Plaintiff argues that Defendant's own records show that Plaintiff worked more than she was paid. Comparing her time sheet to IEX data, both of which are in Defendant's possession, there was approximately 81 hours and 27 minutes of total time Castillo was clocked out per her time sheet but where IEX indicated she was performing work. Id., Exh., D, Supplemental Report of Sean Chasworth at 1-2.

Defendant rebuts Plaintiff's argument that the IEX program placed it on actual or constructive notice that Plaintiff was allegedly working off-the-clock. First, Defendant argues that the IEX system and the official timekeeping system serve different purposes and reflects activities that employees self-select. Def. MSJ Reply at 6. Next, Defendants argue that the Bank does not require managers to reconcile IEX data with timekeeping records. Instead, it is the responsibility of the employee to accurately track their time. See Supp. Kane Decl., Exh. F, Medina Depo., at 77:10-79:24 (Dkt. 109-1). Finally, Defendant contends that Plaintiff's argument that the Bank had actual or constructive notice of alleged off-the-clock work based on comparing time stamps in IEX data to self-reported timekeeping entries is flawed because (1) it is not a reliable measure of instances where Plaintiff was not fully compensated for all hours worked (instead it measures timestamp discrepancies) and (2) the IEX data is not reliable given Plaintiff admitted she manipulated IEX records in the past. Def. MSJ Reply at 8.

Defendant argues that Jong "holds that, if an employer instructs an employee to report all hours worked and pays the employee in accordance with his or her submitted time records, as [BOA] did here, the mere existence of other records or data which might reflect alleged off-the-clock work fails to create a triable issue of an employer's constructive knowledge." Def. MSJ at 14; see Jong, 226 Cal. App. 4th at 398-99. In Jong, the plaintiff recorded his own time sheet yet argued his employer had constructive knowledge of off-the-clock work. Id. at 396. Jong argued that alarm code data from his employer, if cross-referenced with his time records, "indicated that he disarmed the alarm prior to the time he reported beginning his work." Id. at 398-399. However, the court upheld a grant of summary judgment against the plaintiff because "the alarm data does not show what Jong was doing during the time between disarming the alarm and clocking in, or between checking out and arming the alarms" and because, even if it did, that evidence was not before the employer when the employer was paying Jong. Id. at 399.

Here, however, BOA was in possession of evidence that Plaintiff was actually working hours that were not recorded in her time sheet. First, Plaintiff has shown evidence that her manager had the ability, in real time, to monitor her work. Mauro Decl., Exh., B, Medina Depo., at 60:6-13. Next, Plaintiff has presented evidence that her manager, in fact, monitored her work and checked her time sheets for accuracy. Id., Exh. C, at 102:23 - 103:11. Finally, Plaintiff has shown that BOA had in its possession records that show time-stamp discrepancies between hours she marked as work and the hours she submitted. Id., Exh. D, at 1-2.

Far from Jong, where the plaintiff did not show he was working during the time the alarm system was deactivated nor provided evidence that his employer had notice that Jong worked more than recorded as it was paying him, here Plaintiff shown that there is a material dispute as to whether BOA had notice of her actual working hours as time sheets were being approved. Jong, 226 Cal. App. 4th at 399. Any argument about the reliability of such evidence does not defeat summary judgment. Those are questions for the jury.

a. Defendant's Argument Regarding Overtime Causes of Action

Defendant argues that Plaintiff's Second and Eighth Causes of action for failure to pay adequate overtime fail as a matter of law because "it is beyond dispute that [BOA's] overpayment of PTO wages to her exceeds the amount of any and all allegedly underpaid overtime wages." Def. MSJ at 15. Plaintiff argues that Defendant's setoff argument "is indisputably invalid because no setoffs of wages are permitted under the Labor Code." Def. MSJ Opp'n at 11. Defendant replies that they have "never deducted any amount from Plaintiff's wages as a setoff for amounts that Plaintiff owed it." Def. MSJ Reply at 10.

"Where cross-demands for money have existed between persons . . . and an action is thereafter commenced by one such person, the other person may assert in the answer the defense of payment in that the two demands are compensated so far as they equal each other . . . ." Cal. Civ. Proc. Code § 431.70. However, "[l]abor Code section 221 prohibits an employer from deducting amounts from an employee's wages, even as a setoff for amounts clearly owed by the employee." Sciborski v. Pac. Bell Directory, 205 Cal. App. 4th 1152, 1166 (2012). Indeed, "[i]t shall be unlawful for any employer to collect or receive from an employee any part of wages theretofore paid by said employer to said employee." Cal. Lab. Code § 221.

Here, the effect of Defendant's setoff argument is that, because of alleged "amounts clearly owed by the employee," this Court would be unable to determine whether Plaintiff was entitled to earned overtime wages that were never paid to her. Assuming Plaintiff is correct and she is owed overtime wages (and assuming Defendant is correct and has overpaid Plaintiff for PTO), Defendant's argument would in fact deduct from Plaintiff's properly earned wages "as a setoff for an amount clearly owed by the employee." See Sciborski, 205 Cal. App. 4th at 1166. That is exactly what the Labor Code prohibits. Defendants cite Patterson v. Henderson Tire & Rubber Co., 112 Cal. App. 48 (1931) to argue that setoff is allowed in a wage and hour case. Def. MSJ at 16. However, that case was decided six years before Labor Code § 221. Accordingly, the Court rejects Defendant's offset argument.

b. Conclusion

Because the Plaintiff has presented evidence presenting a genuine dispute of material fact as to whether BOA had actual or constructive knowledge of her work off-the-clock, Defendant's Motion for Summary Judgment as to the First, Second, and Eighth claims are DENIED.

2. Plaintiff's Third and Fourth Claims Pertaining to Meal/Rest Periods

a. Plaintiff's Meal Break Cause of Action

Defendant argues that Plaintiff cannot establish any meal break violation claims because, contrary to violations for unpaid wages, Plaintiff has the burden of showing the Defendant "impeded or discouraged employees from taking . . . meal breaks." Def. MSJ at 18. Defendant argues that Plaintiff must show she was "forced to forego" breaks and not just that she did not take the required breaks. Id. Finally, Defendant alleges BOA maintained policies providing for breaks as legally required, Plaintiff testified to understanding these policies, and Plaintiff has provided no proof she was ever instructed to skip or delay her breaks. Id. at 19.

Plaintiff argues that her supervisor provided her with contrary instructions as to taking her meal break. Def. MSJ Opp'n at 12. She argues that Paguio told her to record her time as it was shown in her schedule even if she worked during her lunch period. Id.

Labor Code Section 226.7(b) states that anytime an employee is denied a 30-minute meal period, the employer must pay the "employee one additional hour of pay at the employee's regular rate of compensation." An employer satisfies its obligation to provide meal 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." Brinker Rest. Corp. v. Superior Court, 53 Cal. 4th 1004, 1040 (2012). However, an "employer is not obligated to police meal breaks and ensure no work thereafter is performed." Id. "Under these standards, a plaintiff must show that [an] employer impeded, discouraged or prohibited employees from taking required breaks." Silva v. AvalonBay Comtys., Inc., 2016 WL 4251600, at *10 (C.D. Cal. April 20, 2016).

Here, even assuming Plaintiff at times worked during her meal break, Defendants have shown an absence of a genuine dispute of material fact as to a meal break violation. Plaintiff admits there was a policy in place allowing her to take a meal break (Pl. GDF ¶ 41), Plaintiff admits she never complained to her supervisor that she was unable to take her meal breaks (Pl. GDF ¶ 46), and Plaintiff provides no proof that she was discouraged or prohibited from taking required breaks. Though Plaintiff disputes that she was not discouraged from taking her meal break, the deposition testimony simply does not support her argument that she was instructed to record incorrect meal break times and not the actual time she took her meal break. See Declaration of Gregory Mauro, Exh. A Castillo Decl. at 91:2-14.

Therefore, Plaintiff has not shown any evidence that her "employer impeded, discouraged or prohibited" her from taking her required break. Silva, 2016 WL 4251600, at *10. Looking at the facts and making all inferences in favor of the non-moving party, the Court GRANTS Defendant's Motion for Summary Judgment as to the meal break claim.

b. Plaintiff's Rest Break Cause of Action

Defendant argues that Plaintiff's rest break cause of action fails because BOA has a proper rest break policy, Defendant had no knowledge Plaintiff was not taking breaks, Plaintiff admits she was never told to work through rest breaks, and there is no evidence BOA prevented Plaintiff from taking a break. Def. MSJ at 20. Plaintiff provides no rebuttal to Defendant's arguments in its opposition. Def. MSJ Opp'n at 2. Accordingly, the Court GRANTS Defendant's Motion for Summary Judgment as to the rest break claim.

3. Plaintiff's Fifth, Sixth, and Seventh Derivative Claims

a. Waiting Time Cause of Action

Defendant argues that Plaintiff's waiting time cause of action fails because (1) it is derivative on her claims for failure to pay adequate wages which Defendant argues fail as a matter of law and (2) because alleged meal and rest break violations do not give rise to a claim for waiting time penalties under California Labor Code § 203. Def. MSJ at 21. Plaintiff argues that her waiting time penalties still stand as derivative of her causes of action based on unpaid wages. Def. MSJ Opp'n at 13. Plaintiff concedes that this claim is wholly derivative of the failure to pay wages claims. Id. at 14.

Plaintiff argues that Defendant's failure to pay wages was willful because "defendant here was aware that its employees were not being paid properly" and "knew that not all overtime hours were captured." Id. at 14-15. Defendant responds by arguing that Plaintiff has filed to demonstrate a genuine dispute of material fact with respect to the "willful" element of the waiting time claim. Def. MSJ Reply at 17. Defendant argues that BOA is only liable if it "willfully fails to pay" wages owed to an employee, and Plaintiff has failed to present any evidence that would support such a finding. Id.

"If an employer discharges an employee, the wages earned and unpaid at the time of discharge are due and payable immediately." Cal. Lab. Code § 201(a). In turn, Labor Code § 203(a) states in relevant part: "If an employer willfully fails to pay, without abatement or reduction, in accordance with Sections 201 . . . any wages of an employee who is discharged or who quits, the wages of the employee shall continue as a penalty from the due date thereof at the same rate until paid or until an action therefor is commenced; but the wages shall not continue for more than 30 days." "The settled meaning of 'willful,' as used in section 203, is that an employer has intentionally failed or refused to perform an act which was required to be done." Amaral v. Cintas Corp. No. 2, 163 Cal. App. 4th 1157, 1201 (2008). However, a "'good faith dispute' that any wages are due will preclude imposition of waiting time penalties." 8 C.C.R. § 13520.

Here, because the Court did not grant Defendant's Motion as to the unpaid wages claims, Plaintiff may properly assert this claim as derivative to those claims. The Court finds that there is a genuine dispute of material fact as to whether Defendant willfully failed to pay Plaintiff for hours she alleges she worked that were not recorded in her time records.

As discussed above, Plaintiff presented evidence that BOA in fact knew that she was working longer hours and still failed to pay her for those hours. Though Defendant argues there is no evidence as to willfulness, Plaintiff has shown evidence that her manager had the ability, in real time, to monitor her work. Mauro Decl., Exh., B, Medina Depo., at 60:6-13. Next, Plaintiff has presented evidence that her manager, in fact, monitored her work and checked her time sheets for accuracy. Id., Exh. C, at 102:23-103:11. Finally, Plaintiff has shown that BOA had in its possession records that show time-stamp discrepancies between hours she marked as work and the hours she submitted. Id., Exh. D, at 1-2. This evidence is sufficient to create a material dispute as to whether BOA acted willfully in failing to pay Plaintiff adequate wages at the time of her termination. Accordingly, Defendant's Motion for Summary Judgment as to the waiting time cause of action is DENIED.

b. Wage Statement Cause of Action

Defendant argues that the wage statement cause of action fails because (1) it is derivative of the unpaid wages causes of action; (2) Plaintiff has not established she has suffered an injury as a result of any alleged violation; and (3) the action fails as a matter of law because Plaintiff has not shows that her wage statements were inaccurate as to the wages she was actually paid. Def. MSJ at 22-23.

In response, Plaintiff argues the wage statement claim is derivative of her unpaid wages causes of action and that she has an independent claim because the Defendant allegedly failed to include information on her wage statements "from which Plaintiff could calculate the additional overtime owed as a result of her incentive bonuses." Def. MSJ Opp'n at 16. Defendant replies arguing that Plaintiff does not dispute that the wage statements she received from BOA were accurate in reporting wages actually paid to her. Def. MSJ Reply at 21. Furthermore, any independent claim is insufficient because Plaintiff's wage statements "reflected her overtime wages, applicable overtime rates, and total hours worked, and for the four months in which she worked overtime and earned a bonus, the amount of each inventive bonus payment as a separate line item, the additional overtime wage rate resulting from the bonus payments, and the number of overtime hours paid at that rate." Id. at 23. Finally, Defendant argues Plaintiff has failed to show any evidence as to whether any purported violation was "knowing and intentional." Id. at 24.

Labor Code § 226(a) requires employers to keep accurate records and provide itemized wage statements every pay period that include "(1) gross wages earned, (2) total hours worked by the employee . . . (5) net wages earned . . . (6) the inclusive dates of the period for which the employee is paid, . . . and (9) all applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate by the employee . . . . " Labor Code § 226(a). An employee may obtain statutory damages if she "suffer[s] injury as a result of a knowing and intentional failure by an employer to comply with" the requirements of § 226. Cal. Lab. Code § 226(e)(1). "An employee is deemed to suffer injury for purposes of this subdivision if the employer fails to provide accurate and complete information" including failure to keep accurate records of "total hours worked by the employee." Cal. Lab. Code § 226(e)(2)(B).

A plaintiff cannot maintain a claim under 226(a) based on additional wages allegedly owed to the plaintiff if the wage statement contains the accurate amount of hours worked. See Maldonado v. Epsilon Plastics, Inc., 22 Cal. App. 5th 1308, 1337, (Ct. App. 2018), review denied (Aug. 22, 2018) ("But only the absence of the hours worked will give rise to an inference of injury; the absence of accurate wages earned will be remedied by the violated wage and hour law itself, as is the case here."). However, § 226 may be violated if a defendant fails to include total amount of hours worked in the wage statement. Any absence of hours actually worked on a wage statement gives rise to an inference of injury under 226. Id.

As a preliminary matter, the Court rejects Defendant's argument that the wage statement theory predicated on the unpaid wages violation fails as a matter of law. In Maldonado, the plaintiffs argued that that the wage statement was inaccurate not because it did not include all hours plaintiffs worked, but because it did not correctly apportion the rate of pay for those hours. Id. at 1336. In that situation, the court found that only the absence of actual hours worked would give inference to an injury supporting a violation of § 226. Id. at 1337. In contrast, here Plaintiff argues there is an absence of actual hours worked on her wage statement. Therefore, Maldonado is inapposite.

Defendant does not show an absence of genuine dispute of material fact as to the wage statement claim. As the Court has already found, Plaintiff has shown a genuine dispute of material fact as to whether (1) she in fact worked for more hours than she was paid for and (2) BOA had actual or constructive knowledge of that work. Given these genuine disputes, Defendant's Motion for Summary Judgment as to the wage statement claim is DENIED.

c. UCL Cause of Action

Defendant argues that the UCL cause of action fails because it is predicated wholly on Defendant's alleged failure to properly calculate and pay all minimum and overtime wages under California law and the FLSA and provide compliant meal and rest breaks." Def. MSJ at 23. Because the Court has already denied Defendant's Motion for Summary Judgment as to all claims except for the meal and rest break claims, the Motion fails as to the UCL cause of action. Accordingly, Defendant's Motion for Summary Judgment as to the UCL cause of action is DENIED.

B. Plaintiff's Ex Parte Application to Exclude Defendant's Evidence

Plaintiff asked the Court to exclude Exhibit A to the Declaration of Robert M. Drozynski (Dkt. 102-10). The Court reminds the parties that ex parte applications are rarely granted. See Initial Standing Order, Dkt. 10, at 3-4. The Court finds this application was improper, as Plaintiff could (and did) object to the evidence via evidentiary objections. Therefore, there was no need for an ex parte application. Accordingly, the ex parte application is DENIED.

IV. DISPOSITION

For the foregoing reasons, the Court DENIES IN PART AND GRANTS IN PART Defendant's Motion for Summary Judgment. The Court also DENIES Plaintiff's ex parte Application to excide evidence.

• Defendant's Motion for Summary Judgment as to claims one, two, five, six, seven, and eight is DENIED.

• Defendant's Motion for Summary Judgment as to claims two and three is GRANTED.

• Plaintiff's ex parte application to exclude Defendant's evidence is DENIED.

DATED: October 29, 2019

/s/_________

DAVID O. CARTER

UNITED STATES DISTRICT JUDGE