Harper v. Charter Communications, LLC

Case 2:19-cv-00902-WBS-DMC Document 111 Filed 02/16/21 Page 1 of 55

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

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LIONEL HARPER and DANIEL No. 2:19-cv-00902 WBS DMC SINCLAIR, individually and on behalf of all others similarly situated and all aggrieved employees, ORDER RE: DEFENDANT’S MOTION

FOR SUMMARY JUDGMENT OR, IN Plaintiffs, THE ALTERNATIVE, SUMMARY

ADJUDICATION v.

CHARTER COMMUNICATIONS, LLC,

Defendant.

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Plaintiffs Lionel Harper (“Harper”) and Daniel Sinclair (“Sinclair”) brought this putative class action against defendant Charter Communications, LLC (“Charter”) alleging various violations of the California Labor and Business and Professions Code. (See First Am. Compl. (“FAC”) (Docket No. 45).) Charter now moves for summary judgment on all claims or, in the alternative, summary adjudication. (See Def.’s Mot. for Summ. J. (“Mot. for Summ. J.”) (Docket No. 93-1).)

I. Factual and Procedural Background

Plaintiffs were employed by Charter as small/medium sized business Account Executives (“AEs”) at Charter’s Redding, California location. (Def.’s Statement of Undisputed Facts (“Def.’s SUF”) Nos. 1-2 (Docket No. 93-2).) Harper worked for Charter from September 18, 2017 to March 12, 2018, and Sinclair worked for Charter from January 5, 2015 to April 4, 2017. (Id. Nos. 1,2, 31, 33.)

Charter is a broadband connectivity company and cable operator serving business and residential customers under the Spectrum brand, among others. (Decl. of Andrea Benner (“Benner Decl.”) ¶ 3 (Docket No. 94).) Charter utilizes AEs to sell its phone, internet, and television services directly to small- and medium-sized businesses in an assigned geographic area. (Def.’s SUF No. 4.) Charter classifies its AEs as “exempt” employees. (Pls.’ Statement of Disputed Facts (“Pls.’ SDF”) No. 1 (Docket No. 98-2).) On a typical day when plaintiffs were employed by Charter, Charter expected AEs to participate in a daily sales call with their regional sales manager, prepare sales proposals, cold-call potential customers, set up appointments with prospective customers and meet them in person, monitor existing sales, go “door-to-door knocking,” and enter data related to completed sales into one of several online portals, among other tasks. (Benner Decl. ¶¶ 12-13, Ex. A; Def.’s SUF Nos. 4-6; Declaration of Zachary Shine (“Shine Decl.”), Ex. B, Sinclair Deposition (“Sinclair Dep.”) 142:14-19 (Docket No. 95-3); Ex. A, Harper Deposition (“Harper Dep.”) 126:5-127:5 (Docket No. 95-1).) AEs were also expected to interface with other departments, including departments that were responsible for installing equipment at the customer’s business or for performing construction on the customer’s property (e.g., to install phone lines or cables if the property did not already have them), and to be customers’ first point of contact for the services sold up until installation had been completed. (See Shine Decl., Ex. C, Benner Deposition (“Benner Dep.”) 85:21-87:2; 97:14-98:19.)

As salespersons, Charter AEs were eligible to earn commissions based on how many sales they made each month. (Def.’s SUF No. 16.) The parties dispute whether Charter ever provided plaintiffs with a copy of Charter’s commission plan or conveyed its terms to the plaintiffs. (See Pls.’ Response to Def.’s SUF (“Pls.” RSUF”) Nos. 12-16.)

During his employment with Charter, Sinclair had two managers: Wade Smith and Andrea Benner. (Sinclair Dep. 47:24- 51:6.) Benner was Harper’s manager throughout his entire employment. (Harper Dep. 79:18-80:23.) Since Benner was located in Medford, Oregon, she did not directly supervise either Sinclair or Harper’s day-to-day activities. (Id.; Sinclair Dep. 47:24-51:6.) Throughout Sinclair and Harper’s employment, Charter required all AEs to meet or exceed certain monthly sales goals. (Def.’s SUF No. 9.) Both Sinclair and Harper received “corrective action reports” indicating that they were failing to meet Charter’s expectations related to the AE position during their employment. (Def.’s SUF Nos. 9-10.) Beginning on August 4, 2016, Sinclair took a leave of absence. (Benner Decl. ¶ 31.) Charter terminated Sinclair on April 4, 2017. (Id.) On approximately February 3, 2018, Harper took medical leave. (Id. at ¶ 34.) He remained on leave through his termination on March 12, 2018. (Id.)

On September 14, 2018, Harper filed a written notice with the California Labor and Workforce Development Agency (“LWDA”), alleging that Charter had committed violations of the California Labor Code. (See Decl. of Jamin Soderstrom (“Soderstrom Decl.”) ¶ 22 (Docket No. 98-5).) Believing he was subject to an arbitration agreement with Charter, Harper then filed a demand for arbitration with JAMS on November 19, 2018. (Id. at ¶ 23.) The arbitrator subsequently issued a final award determining that none of Harper’s claims were arbitrable. (See id. ¶ 24.) Harper then filed a complaint alleging the same violations of the California Labor Code against Charter in Shasta County Superior Court, on behalf of himself and all similarly situated individuals. (See Docket No. 1-1.) Charter removed the case to this court on May 17, 2019. (See Docket No. 1.) On December 13, 2019, Harper amended his complaint, adding Sinclair as a named plaintiff pursuant to Rule 15(c). (See FAC.)

Plaintiffs allege that Charter erroneously categorized them as exempt employees because Charter mistakenly categorized them as “outside salespersons.” (FAC ¶ 9.) Plaintiffs claim that, as a result of this misclassification, Charter failed to pay them minimum wage in violation of California Labor Code §§ 1182.12, 1194, 1197, and 1194.4 (First Claim), failed to pay overtime wages in violation of California Labor Code §§ 510 and 1197 (Second Claim), failed to provide meal periods or provide premium wages in lieu thereof in violation of California Labor Code §§ 512 and 226.7 (Third Claim), and failed to provide rest breaks or pay premium wages in lieu thereof in violation of California Labor Code § 226.7 (Fourth Claim). (See generally FAC.) Plaintiffs further claim that Charter unlawfully calculated, deducted, and failed to pay commission wages under California Labor Code §§ 204, 221, 223, 224, and 2751 (Fifth Claim), failed to provide accurate wage statements in violation of California Labor Code § 226 (Sixth Claim), failed to pay all wages owed upon termination in violation of California Labor Code § 203 (Seventh Claim), failed to provide timely and complete copies of employment records in violation of California Labor Code §§ 226, 432, and 1198.5 (Eighth Claim), violated California’s Unfair Competition Law (“UCL”) under California Business and Professions Code § 17200 (Ninth Claim), and violated the California Private Attorney General Act (“PAGA”), Cal. Labor Code § 2698, et seq. (Tenth Claim).

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. 22 P. 56(a). A material fact is one that could affect the outcome of the suit, and a genuine issue is one that could permit a reasonable jury to enter a verdict in the non-moving party’s favor. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986).

The party moving for summary judgment bears the initial burden of establishing the absence of a genuine issue of material fact and can satisfy this burden by presenting evidence that negates an essential element of the non-moving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).

Alternatively, the movant can demonstrate that the non-moving party cannot provide evidence to support an essential element upon which it will bear the burden of proof at trial. Id. Where “the case turns on a mixed question of fact and law and the only disputes relate to the legal significance of undisputed facts, the controversy collapses into a question of law suitable to disposition on summary judgment.” Thrifty Oil Co. v. Bank of Am. Nat’l Tr. & Sav. Ass’n, 322 F.3d 1039, 1046 (9th Cir. 2003). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Matsuhita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Any inferences drawn from the underlying facts must, however, be viewed in the light most favorable to the party opposing the motion.1 See id.

1 Charter makes several evidentiary objections to the Declaration of Jamin S. Soderstrom and its attachments, the declaration of Lionel Harper, and the declaration of Daniel Sinclair on the grounds that the statements by Mr. Soderstrom, Harper, and Sinclair, as well as their attached exhibits, lack foundation, are hearsay, are speculative, or are irrelevant. (See Docket No. 103-1.) Plaintiffs similarly object to portions of the Declaration of Andrea Benner and its attachments. (See Docket No. 98-27.) The Ninth Circuit has long held that “to survive summary judgment, a party does not necessarily have to produce evidence in a form that would be admissible at trial, as long as the party satisfies the requirements of Federal Rule of Civil Procedure 56.” Fraser v. Goodale, 342 F.3d 1032, 1036–37 (9th Cir. 2003.) Moreover, “[a]s a practical matter, the court finds this entire exercise of considering evidentiary objections on a motion for summary judgment to be futile and counterproductive.” Burch v. Regents of University of California, 433 F.Supp.2d 1110, 1122 (E.D. Cal. 2006) (Shubb, J.). Accordingly, if Charter or plaintiffs wish to raise these evidentiary objections, they may do so at trial.

III. Discussion

A. Claims for Failure to Pay Minimum Wage, Failure to Pay

Overtime, Failure to Provide Meal Periods, and Failure to Provide Rest Periods Charter first argues that plaintiffs’ First (Minimum Wage), Second (Overtime), Third (Meal Periods), and Fourth (Rest Periods) claims fail as a matter of law because California’s wage and hour laws, including minimum wage and overtime pay requirements, as well as meal and rest period requirements, do not apply to “outside salespersons.” (See Mot. for Summ. J. at 11-18.) Charter also argues that Sinclair’s First through Fourth claims are time-barred because he last worked for Charter more than three years before he filed suit. The court will address Charter’s statute-of-limitations argument before turning to the merits of its argument that Harper and Sinclair were properly classified as “outside salespersons.”

1. Statute of Limitations The applicable limitations period for claims for damages under the California Labor Code is three years. See Cal. Code Civ. P. § 338. Charter argues that Sinclair’s claims are time-barred because the last day Sinclair actually performed work for Charter was July 16, 2016, but Sinclair did not file suit until December 13, 2019. (See Mot. for Summ. J. at 21.)

Plaintiffs argue that, because Sinclair was among the putative class members referenced in Harper’s original complaint, and Sinclair was added as a party plaintiff pursuant to Rule 15(c) when plaintiffs filed the First Amended Complaint on December 13, 2019, Sinclair’s claims relate back to Harper’s original pleading. See In re Syntex Corp. Sec. Litig., 95 F.3d 922, 935-36 (9th Cir. 1996).

“An amendment adding a party plaintiff [under Rule 15(c)] relates back to the date of the original pleading only when: (1) the original complaint gave the defendant adequate notice of the claims of the newly proposed plaintiff; (2) the relation back does not unfairly prejudice the defendant; and (3) there is an identity of interests between the original and newly proposed plaintiff.” Id. “In deciding whether an amendment relates back to the original claim, notice to the opposing party of the existence and involvement of the new plaintiff is the critical element.” Avila v. INS, 731 F.2d 616, 620 (9th Cir. 1984). Whether the defendant had adequate notice of the newly proposed plaintiff's claims often turns on “whether the original complaint clearly stated that the plaintiff sought to represent others.” Allen v. Similasan Corp., 96 F. Supp. 3d 1063, 1069 (S.D. Cal. 2015) (citations omitted).

The court finds that Harper’s complaint gave defendant adequate notice of Sinclair’s claims because it sought to pursue class claims. While an individual complaint may not provide adequate notice that the plaintiff seeks claims on behalf of a class, see, e.g., Corns v. Laborers Int'l Union of N. Am., No. 09-cv-4403 YGR, 2014 WL 1319363, at *5 (N.D. Cal. Mar. 31, 2014), courts have uniformly found that a class action complaint provides defendants adequate notice of other class members' claims, see, e.g., Lith v. Iheartmedia + Entm't, No. 1:16-cv-066 LJO SKO, 2016 WL 4000356, at *6 (E.D. Cal. July 25, 2016). Here, Harper’s complaint unequivocally sought to bring a class action. (See Docket No. 1-1 (commencing action with “Class and PAGA Action Complaint”).) Defendant even acknowledged in its notice of removal that the putative class included 1083 account executives employed by defendant beginning in November 2014, of which Sinclair was one. (See Docket No. 1 at 11.)

The court also finds that an identity of interests exists between Sinclair and Harper. For there to be the required identity of interests, Harper and Sinclair must be “similarly situated.” Immigrant Assistance Project of L.A. Cty. Fed'n of Labor (AFL-CIO) v. INS, 306 F.3d 842, 858 (9th Cir. 2002). Plaintiffs are “similarly situated” when “[t]he circumstances giving rise to the[ir] claims remain[ ] the same [under the amended complaint] as under the original complaint. Raynor Bros. v. Am. Cyanimid Co., 695 F.2d 382, 384 (9th Cir. 1982). Here, Sinclair and Harper held the same position at Charter, had some of the same supervisors and colleagues, and were subject to the same allegedly unlawful policies and practices. These policies and procedures give rise to the same allegations of violations of the California Labor Code, California’s UCL, and PAGA in both the original and operative complaints. (Compare Compl. (Docket No. 1-1) with FAC (Docket No. 45).) Because the court finds an identity of interests between Harper and Sinclair, the relation back of Sinclair’s claims will not prejudice Charter. Raynor Bros. v. Am. Cyanimid Co., 695 F.2d 382, 384 (9th Cir. 1982) (holding when new and former plaintiffs “have sufficient identity of interests, relation back of the amendment is not prejudicial to the defendant”); Besig v. Dolphin Boating & Swimming Club, 683 F.2d 27 1271, 1278 (9th Cir. 1982) (holding where the relief sought remains the same “the defendant is not prejudiced because his response to the action requires no revision”); Immigrant Assistance, 305 F.3d at 858 (“The addition of new plaintiffs who are similarly situated to the original plaintiffs therefore did not cause the INS any prejudice in the present case.”). Sinclair’s claims as alleged in the operative complaint therefore relate back to Harper’s original complaint, which was filed on May 3, 2019.

Plaintiffs further argue that the court should apply principles of equitable tolling to suspend the running of any applicable statutes of limitations after November 19, 2018. (See Pls.’ Opp’n at 39-46.) They base their argument on a series of events that began over a year before Harper filed his original complaint in Shasta County Superior Court. On April 19, 2018, approximately one month after Harper was terminated by Charter, Harper contacted JAMS, the company listed in an arbitration agreement Charter had signed with Harper, to request non-binding mediation. (Harper Decl. ¶ 22.)

Charter refused to participate in mediation with Harper in May 2018. (Id.) On July 3, 2018, Charter’s counsel sent plaintiffs’ counsel a letter attaching a copy of the arbitration agreement Harper had signed, which required arbitration with JAMS. (See Soderstrom Decl. ¶ 19, Ex. 19.) Charter asked Harper to comply with his contractual obligations to arbitrate, and stated that it would move to compel arbitration is Harper elected to file a complaint in court. (See id.) Harper subsequently filed a notice of Charter’s alleged violations of the California Labor Code with the California LWDA, then filed an arbitration demand with JAMS on November 19, 2018, in compliance with his arbitration agreement with JAMS. (See id. at ¶¶ 22-23.) Because the arbitration agreement included a mutual delegation option, Harper’s arbitration demand asked the arbitrator to address several threshold issues before reaching the merits of the claim. (See id.) Harper’s arbitration demand stated that Harper intended to file the same claims on an individual, class, and representative PAGA basis in court to the extent the arbitrator determined some or all of the claims were not arbitrable. (See id.)

The arbitrator issued a final award on April 25, 2019, dismissing the arbitration on the grounds that the entire arbitration agreement was null and void and that none of Harper’s claims was arbitrable. (See id. at ¶ 24.) Harper filed his complaint shortly thereafter, on May 3, 2019. (See id.)

Plaintiffs argue that equitable tolling is automatic “where exhaustion of an administrative remedy is mandatory prior to filing suit.” McDonald v. Antelope Valley Cmty. Coll. Dist., 45

16 Cal. 4th 88, 101 (Cal. 2008). The parties dispute whether Harper was required to pursue arbitration before filing suit. (See Mot. for Summ. J. at 34; Pls.’ Opp’n at 40.) However, the court need not address the question of whether Harper was required to arbitrate his claims because equitable tolling may still apply “regardless of whether the exhaustion of one remedy is a prerequisite to the pursuit of another.” Elkins v. Derby, 12 Cal. 3d 410, 414 (Cal. 1974). Equitable tolling applies in such situations when three elements are present: (1) timely notice, (2) lack of prejudice to the defendant, and (3) reasonable and good faith conduct by the plaintiff. See Saint Francis Mem’l Hosp. v. State Dep’t of Pub. Health, 9 Cal. 5th 710, 724 (2020); Elkins, 12 Cal. 3d at 414.

Here, Charter had notice of Harper’s allegations and claims, and of his intent to pursue them on behalf of other employees in California and the Sate, as early as September 14, 2018, when Harper filed and mailed the PAGA notice, and certainly by the time Harper filed his demand for arbitration, in which he indicated his intent to pursue his claims in court should the arbitrator determine that some or all of his claims were not arbitrable. (See Soderstrom Decl. ¶¶ 22-23.)

Under the second element, courts’ “core focus” is “whether application of equitable tolling would prevent the defendant from defending a claim on the merits.” Saint Francis, 9 Cal. 5th at 728 (citing Addison v. California, 21 Cal. 3d 313, 318 (Cal. 1978)). Given that Harper’s claims in his demand for arbitration were the same as his claims filed in court, and that Harper indicated his intention to pursue his claims on behalf of a class, the court does not “see how tolling [the] statute of limitations would undermine the [defendant’s] ability to defend the propriety of the same penalty in superior court.” Id. Indeed, by May 17, 2019, just two weeks after Harper filed his claims in court, Charter had already identified 1,083 putative class members and aggrieved employees who had been employed by Charter in California since November 19, 2014. (See Docket No.1, at 11.)

Finally, the court finds here that Harper acted reasonably and in good faith. See Saint Francis, 9 Cal. 5th at 724. Harper filed his PAGA notice on September 14, 2018, just ten days after receiving his wage statements and some of his personnel records from Charter. (See Soderstrom Decl. ¶ 21.) Harper filed his arbitration demand two months later, and filed his suit in Shasta Superior Court shortly after the arbitrator issued a final award. (See id. at ¶¶ 23-24.) These actions were each “objectively reasonable under the circumstances” and “subjectively in good faith” as Harper believed himself to be bound to an arbitration agreement with Charter that required arbitration with JAMS and did not unreasonably delay. See Saint Francis, 9 Cal. 5th at 724.

The court therefore finds that equitable tolling of the statute of limitations applicable to the claims in Charter’s original complaint to November 19, 2018 (the date on which Harper filed his arbitration demand with JAMS) is appropriate. See id. Because Sinclair’s claims relate back to the claims contained in Harper’s original complaint, the applicable date for determining whether Sinclair complied with the statute of limitations is November 19, 2018.

Accordingly, because the applicable statute of limitations for claims for damages under the Labor Code is three years, and Sinclair was still working for Charter on November 19, 2015, the court will not grant summary judgment against Sinclair on his First through Fourth claims for damages on the grounds that his claims were not timely filed. As Sinclair acknowledges, however, he is time-barred from seeking penalties under his first four claims, as the last day he worked for Charter was April 4, 2017, and statutory penalties are subject to a one-year limitations period. See Cal. Code Civ. P. § 340; (Pls.’ Opp’n at 46). The court will therefore grant Charter’s request for summary adjudication as to Sinclair’s First, Second, Third, and Fourth Claims for statutory penalties.

2. Outside Salesperson Exemption

Under California law, outside salespersons are exempt from overtime, minimum wage, meal period, and rest period requirements. California Labor Code § 1171 sets forth that “the provisions of [the Labor Code's Chapter on Wages, Hours, and Working Conditions] shall apply to and include men, women and minors employed in any occupation, trade, or industry, whether compensation is measured by time, piece, or otherwise, but shall not include any individual employed as an outside salesman . . . .” Cal. Lab. Code § 1171 (emphasis added). Under California regulations, an “outside salesperson” is defined as “any person, 18 years of age or over, who customarily and regularly works more than half the working time away from the employer's place of business selling tangible or intangible items or obtaining orders or contracts for products, services or use of facilities.” Cal. Code Regs. tit. 8, § 11070.

Whether someone is an outside salesperson under the California labor laws is a mixed question of law and fact, although it often “turns on a detailed, fact-specific determination.” Ramirez v. Yosemite Water Co., 20 Cal. 4th 785, 790 (Cal. 1999). “[T]he assertion of an exemption from the overtime laws is considered to be an affirmative defense, and therefore the employer bears the burden of proving the employee's exemption.” Id. (citations omitted).

According to the California Supreme Court, the determination of whether an employee is an “outside salesperson” entails a “quantitative approach, looking to the actual hours spent on sales activity to determine if an employee is primarily a salesperson.” Id. at 801. This determination is guided by practical inquiries into the actual nature of the requirements of the employee’s job. See id. Courts may not rely solely on either “the number of hours that the employer, according to its job description or its estimate, claims the employee should be working in sales,” or “the actual average hours the employee spent on sales activity.” Id. at 802 (emphasis added). As the California Supreme Court has explained:

On the one hand, if hours worked on sales were determined through an employer's job description, then the employer could make an employee exempt from overtime laws solely by fashioning an idealized job description that had little basis in reality. On the other hand, an employee who is supposed to be engaged in sales activities during most of his working hours and falls below the 50 percent mark due to his own substandard performance should not thereby be able to evade a valid exemption. A trial court, in determining whether the employee is an outside salesperson, must steer clear of these two pitfalls by inquiring into the realistic requirements of the job. In so doing, the court should consider, first and foremost, how the employee actually spends his or her time. But the trial court should also consider whether the employee's practice diverges from the employer's realistic expectations, whether there was any concrete expression of employer displeasure over an employee's substandard performance, and whether these expressions were themselves realistic given the actual overall requirements of the job.

Id.

“[O]nly time ‘away from the employer’s place of business’ that is spent on sales activity, i.e., ‘selling tangible or intangible items or obtaining orders or contracts for products, services or use of facilities,’ counts towards the 50% mark needed to establish the [outside salesperson] exemption.” Spallino v. Charter Comms. Inc., No. ED CV 17-0982-DOC (SPx), 2018 WL 6011541, at *8 (C.D. Cal. June 5, 2018) (quoting 8 Cal. 15 Code Regs. § 11070). Activities performed inside the office do not count toward the exemption even if they are direct sales or sales-related activities. See Duran v. United States Bank Nat’l Assn., 59 Cal. 4th 1, 26 (Cal. 2014) (“Unlike the corresponding federal provision, California's wage order definition ‘takes a purely quantitative approach’ and focuses exclusively on whether the employee spends more than half of the workday engaged in sales activities outside the office.” (emphasis added) (quoting Ramirez, 20 Cal. 4th at 797)). California law also does not treat activities that are “incidental” to sales activities as exempt, even if they are performed outside the office. Ramirez, 20 Cal. 4th at 796-801.

Here, no party appears to contend that Harper or Sinclair actually spent more than 50% of their time away from the employer’s place of business engaged in sales activities. (See Def.’s SUF Nos. 10-11; Pls.’ SDF Nos. SDF Nos. 19-22.) Rather, Charter argues that plaintiffs were appropriately classified as outside salespersons because, during their employment, Charter expected AEs to “customarily and regularly” spend at least 50% of their time in the field conducting sales activities. (Mot. for Summ. J. at 3; Def.’s SUF No. 4.) If plaintiffs were spending less than 50% of their time outside the office participating in sales activities, Charter contends, they were not meeting the realistic requirements of their jobs. Ramirez, 20 Cal. 4th at 25 802.

Charter points to several “corrective action reports” that were issued to plaintiffs as evidence that they were not living up to Charter’s expectations for how much time AEs should be spending outside the office. (See Benner Decl., Ex. I-N.) However, these corrective action reports were issued based on plaintiffs’ failure to meet rolling average sales targets, without regard to the amount of time plaintiffs’ spent outside the office. (See id.) While some of the directives contained in these reports instructed plaintiffs to focus on activities that would result in their spending more time outside the office, such as following more leads or knocking on more doors, other directives instructed plaintiffs to focus on activities that had to be done in the office, such as sending their manager their daily call form. (See id.) None of the corrective action reports expressly state that plaintiffs were failing to live up to expectations because they were spending too much time in the office. (See id.)

Charter also emphasizes that it advertises the AE position as one that will “keep you on the go” and “working door- to-door.” (Benner Decl. ¶ 5.) According to training materials provided to new AEs in December 2016, on a “typical day,” Charter expects AEs to be outside the office from 10:00 a.m. to 3:00 p.m., or five hours out of the day. (See Benner Decl., Ex. A, (“December 2016 AE Training Materials”) at 41.) Plaintiffs’ former manager similarly testified that “account executives should spend most of their time in the field.” (Benner Dep. 92:1-8, 103:1-11.)

But the training materials Charter cites do not actually specify that Charter expects AEs to be out of the office more than half the day; while the schedule on a “typical day” will have AEs out of the office between 10:00 a.m. and 3 p.m., the schedule does not specify how long a AE’s typical day will last besides saying it will go from “approximately 8:00 a.m.” to “around 5 p.m.” (See December 2016 AE Training Materials at 41.) In fact, both Sinclair and Harper testified that they regularly were required to work past 5 p.m. and that, contrary to the training materials emphasized by Charter, they were advised that the best sales results would be achieved if they were out in the field selling from 11:00 a.m. to 2:00 or 3:00 p.m., which would only result in 3-4 hours being spent out of the office selling. (See Harper Dep. 146:1-25, 163:1-164:11; Sinclair Dep. 97:5-15, 100:25-101:19.) Other training materials produced by Charter reinforce plaintiffs’ testimony, providing testimonials from “the best” AEs and samples schedules that suggest AEs need not spend more than 50% of their time outside the office. (See Soderstrom Decl., Exs. 10, 11.)

By contrast, another job description produced by Charter for “Direct Sales Reps” reveals that Charter expressly stated that it expected those employees to spend 80% of their time outside the office. (See Soderstrom Decl., Ex. 21.) Neither of Charter’s “Standards of Performance” for the AE position in December 2015 or August 2017 indicated that Charter expected AEs to spend any particular amount of time outside the office--rather, the expectation simply appears to have been that AEs would complete a certain number of sales each month. (See Benner Decl., Ex. H; Benner Dep. 37:1-18; Soderstrom Decl., Ex. 8.) Plaintiffs have also submitted declarations in which they explain that, contrary to the testimony of their former manager, Benner, no person at Charter, or any document they ever saw at Charter, expected or required them to spend more than 50% of their work hours outside the office selling Charter’s services. (See Harper Decl. ¶¶ 6, 10; Sinclair Decl. ¶¶ 6, 10.)

Viewing the evidence in the light most favorable to the non-moving parties, the court finds that genuine issues of material fact exist as to whether Charter actually expected its AEs to spend more than 50% of their time outside the office, engaged in sales or sales-related activities, at the time of plaintiffs’ employment. See Celotex, 477 U.S. at 322–23.

Furthermore, even if Charter did have such an expectation, a genuine issue of fact would exist as to whether such an expectation was reasonable in light of the duties plaintiffs were expected to complete as part of their roles as AEs. See Ramirez, 20 Cal. 4th at 802 (directing that while courts should “consider, first and foremost, how the employee actually spends his or her time,” they “should also consider whether the employee's practice diverges from the employer's realistic expectations, whether there was any concrete expression of employer displeasure over an employee's substandard performance, and whether these expressions were themselves realistic given the actual overall requirements of the job” (emphasis added)). The evidence shows that many of the tasks inherent to plaintiffs’ job required them to be in the office. AEs were required to attend a daily sales call at the start of each day that prevented them from going out into the field. (Harper Dep. 149:9-17; Sinclair Dep. 98:25-99:14; Benner Dep. 106:20-110:11.) This call typically lasted between 15 minutes and an hour, depending on how long the manager let the meeting run. (See id.)

AEs were also required to spend significant amounts of time “scrubbing” a list of businesses provided to them by Charter to target each month (known as the “leads list”). (Harper Dep. 102:5-104:15; Sinclair Dep. 277:20-278:15.) The scrubbing process required AEs to go through the leads list and determine which businesses were not viable targets, because they had closed, already had Charter service, or were listed at an address that was actually just a vacant lot or building. (See id.) Sinclair and Harper both testified that this process required them to work at their desk, because much of it involved researching businesses online, searching Google Maps, looking through Charter databases, or conferring with other AEs. (Id.)

Once AEs had verified that a business listed on the leads list was a valid lead, they had to research the business to determine how many clients it serviced, as well as what phone, internet, or telephone service the business already had, to create a sales proposal tailored to the specific business’ needs. (Harper Dep. 117:14-119:16; Sinclair Dep. 133:2-134:9.) Harper and Sinclair testified that this process also largely required them to be at their desk, and estimated that it could take anywhere from 30 minutes to 3 hours, depending on how complex of a proposal needed to be prepared. (See id.)

After closing a deal with a client, AEs would have to return to the office to input the order into an online portal. (Harper Dep. 126:5-127:5; Sinclair Dep. 142:14-19.) Harper estimated that the input process would take 30 minutes to an hour. (See id.) The evidence shows that AEs were then expected to be involved with an account up until service had been completely installed at the client’s business. (Harper Dep. 127:16-131:13; Sinclair Dep. 275:5-7; Benner Dep. 91:11-100:13.) While other departments were in charge of the actual installation and any construction that had to occur at the customer’s business and/or property (e.g., installing cable or phone lines), AEs were expected to be the first point of contact would have to consult with these other departments to troubleshoot issues and would be expected to field calls from customers who viewed them as a point of contact for Charter. (Id.)

According to Harper, AEs would frequently have to work out logistical issues with customers regarding work that other departments were tasked with doing, like scheduling installs or required construction, all of which would be done from the office. (Id.; Benner Dep. 91:11-100:13 (explaining that AEs were expected to be the “main point of contact” with post-sale customers during the installation process and “remain available to the customer throughout the installation process”).) Sinclair also testified that up until the day after an install was completed, AEs were expected to field calls from clients experiencing issues and investigate what their issue was so that the AE could refer the issue to the proper Charter department. (Sinclair Dep. 144:1-145:6.) Based on these tasks, Sinclair and Harper testified that they spent 70% and approximately 60-65% of their time at their desks, respectively. (Sinclair Dep. 47:10- 16; Harper Dep. 235:19-254:12.)

Ultimately, the determination of whether Harper and Sinclair can appropriately be classified as “outside salespersons” who are exempt from California wage and hour laws is a fact-intensive question. See Ramirez, 20 Cal. 4th at 790. Given the conflicting testimonial and documentary evidence as to Charter’s expectations regarding how many hours plaintiffs should have spent outside the office, plaintiffs’ testimony regarding the demands of their job and why they spent a majority of their time at the office, and viewing the facts in the light most favorable to plaintiffs as the non-moving parties, a reasonable juror could find that plaintiffs did not qualify as “outside salespersons.” See Spallino, 2018 WL 6011541, at *9 (denying summary judgment as to plaintiff’s wage and hour claims because there was a disputed issue of fact as to whether Time Warner Cable Account Executive was an “outside salesperson”); T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 631 (9th Cir. 1987) (“If the nonmoving party produces direct evidence of a material fact, the court may not assess the credibility of this evidence nor weigh against it any conflicting evidence presented by the moving party.”).

Accordingly, there is a disputed issue of material fact underlying whether plaintiffs were protected by California's minimum wage, overtime pay, meal period, and rest period requirements. The court will therefore deny Charter’s motion for summary judgment as to plaintiffs’ First through Fourth Claims (except for Sinclair’s First through Fourth Claims for penalties, as discussed above).2

2 Plaintiffs present an alternative argument that, even if the court were to find that Charter had properly classified AEs as outside salespersons after they had completed their initial training, the court should consider AEs’ training weeks

B. Commission-Based Claims

Plaintiffs’ Fifth Claim alleges that Charter unlawfully calculated, deducted, and paid commission wages in violation of California Labor Code §§ 2751(b), 204, 221, 223, and 224. (See FAC ¶¶ 42-48.) As a threshold matter, Charter again argues that Sinclair’s commission-based claims are time-barred based on the Labor Code’s three-year statute of limitations. (See Mot. for Summ. J. at 25.) For the reasons discussed above, the court finds this argument to be without merit.

Charter also raises several substantive arguments as to why summary adjudication is appropriate as to each alleged statutory violation in the operative complaint. The court will address each of Charter’s arguments in turn:

1. California Labor Code § 2751(b)

California Labor Code § 2751(b) states that, where an employee is paid commissions, “the employer shall give a signed copy of the [commission plan] to every employee who is a party thereto and shall obtain a signed receipt for the contract from each employee.” Cal. Labor Code § 2751(b). Charter argues that plaintiffs’ claim fails as a matter of law because § 2751(b) no longer provides a private right of action. (See Mot. for Summ. J. at 22.) “Prior to January 2012, California Labor Code § 2752 provided that ‘[a]ny employer who does not employ an employee separately and find that, at the least, Charter had misclassified plaintiffs during training. (See Pls.’ Opp’n at 12-15.) Because the court finds that genuine issues of material fact exist as to whether AEs were properly classified as outside salespersons throughout their entire employment, it need not consider plaintiffs’ training weeks separately from their non-training weeks. pursuant to a written contract as required by Section 2751 shall be liable to the employee in a civil action for triple damages.’” Swafford v. Int’l Bus. Machines Corp., 383 F. Supp. 3d 916, 934 (N.D. Cal. 2019). But “[w]hen the California Legislature amended Section 2751 in 2011, it repealed Section 2752.” Beard v. Int’l Bus. Machines Corp., No. C 18-06783 WHA, 2019 WL 1516692 (N.D. Cal. Apr. 7, 2019) (citing Stats. 2011, ch. 556, § 3). Other district courts interpreting § 2751(b) have concluded that the California’s repeal of § 2752 removed any private right of action under the statute. See id.; Swafford, 383 F. Supp. 3d at 934. This court agrees with those courts, and finds that plaintiffs have no private right of action under § 2751. The court will therefore grant Charter’s motion for summary adjudication as to plaintiffs’ claim that Charter violated Labor Code § 2751(b).

However, while § 2751 does not provide plaintiffs with a private right of action, the court will still assess whether a genuine dispute of material fact exists, as a violation of § 2751(b) may still form the basis of Harper’s PAGA claim and serve as a predicate violation for plaintiffs’ claims under the UCL, as discussed below. See Beard v. Int’l Bus. Machines Corp., No. C 18-06783 WHA, 2020 WL 1812171, at *9-10 (N.D. Cal. Apr. 9, 2020) (denying employer summary judgment on UCL claim predicated on violation of Section 2751); Keenan v. Cox Commc’ns Cal., LLC, No. 18-cv-129-MMA (LL), 2019 WL 3288939, at *9 (S.D. Cal. July 22, 2019) (stating that monetary relief for violations of § 2751 is only available in the form of civil penalties under PAGA) (overruled on other grounds).

Charter argues that it complied with § 2751(b) by providing plaintiffs with their commission plans through an online portal known as “Synygy” and by requiring them to check a box acknowledging receipt shortly after they were hired. (See Mot. for Summ. J. at 23.) In support of its argument, Charter presents documents related to a Synygy training course that it asserts plaintiffs took upon being hired by Charter, as well as statements contained in Benner’s declaration. (See Benner Decl. ¶¶ 17, 20-23, Ex. G.) Both Benner’s declaration and the Synygy training documents state that, in the course of the training, new AEs were required to review their commission plan and check a box acknowledging that they had read and understood it, and that they agreed to comply with its terms. (See id.) According to Benner, the only way new AEs could “clear” the acknowledgment page and gain access to compensation information in the Synygy portal was to click the acknowledge button. (See id.) Benner also states that another Charter employee has searched Synygy’s acknowledgement data and found that Harper electronically acknowledged receipt of his commission plan on September 29, 2017, at 2:36 p.m. (See id.)

Plaintiffs dispute that they ever completed the Synygy training described in the training documents and by Benner. (See Harper Decl. ¶ 19; Sinclair Decl. ¶ 17; Soderstrom Decl., Ex. 15.) Neither plaintiff recognized the Synygy training guide when it was presented to them, and a transcript of the training titles Harper completed during his training does not mention any training related to the Synygy portal. (See id.) Neither plaintiff recognized the commission plans Charter asserts they reviewed and signed, either. (Sinclair Dep. 75:9-76:17; Harper Dep. 84:9-86:16.) Both Harper and Sinclair testified that they were never presented with copies of the commission plans; instead, the only knowledge they had of Charter’s commission plans came from conversations they had with others in the office or, in Sinclair’s case, from a one-page summary provided to him by a Charter employee. (Sinclair Dep. 77:9-78:5; Harper Dep. 86:21-87:22.)

The only evidence that either plaintiff signed or acknowledged receipt of their commission plans comes from Benner’s statement that AEs had to acknowledge receipt electronically before they could access the Synygy portal to view their compensation information, and her statement that Charter is in possession of data showing Harper electronically acknowledged receipt of his commission plan. (See Benner Decl. ¶¶ 17, 20-23.) However, both plaintiffs state in their declarations that there were multiple ways AEs could view and keep track of their commissions besides logging into Synygy, including other online portals, via email from their managers, phone discussions, sales meetings, and on their wage statements. (See Pls.’ SDF 28; Harper Decl. ¶ 15; Sinclair Decl. ¶ 13.) And Charter has not produced the data showing electronic acknowledgement to which Benner refers, or any commission plans signed by either plaintiff. (See (See Pls.’ SDF 30-34; Soderstrom Decl. ¶ 4; Benner Decl., Ex. F.) In other words, there is no documentary evidence the court can rely on that conclusively shows that plaintiffs knowingly agreed to Charter’s commission plan, acknowledged receipt of the plan, or were provided with a signed copy of the plan, and the testimony and declarations of the parties are in direct conflict. The court therefore finds that a genuine issue of material fact exists as to whether Charter failed to provide plaintiffs with signed copies of their commission plans or failed to obtain a signed receipt from each plaintiff in violation of § 2751. See Celotex, 477 U.S. at 322– 23.

3. California Labor Code § 204 Plaintiffs claim that Charter violated California Labor Code § 204 by adopting an unlawful monthly commission pay period and paying earned commissions late. (See FAC ¶¶ 46; Pls.’ Opp’n at 25.) Section 204 states in pertinent part:

All wages . . . earned by any person in any employment are due and payable twice during each calendar month, on days designated in advance by the employer as the regular paydays. Labor performed between the 1st and 15th days, inclusive, of any calendar month shall be paid for between the 16th and the 26th day of the month during which the labor was performed, and labor performed between the 16th and the last day, inclusive, of any calendar month, shall be paid for between the 1st and 10th day of the following month.

Cal. Labor Code § 204(a). “In other words, all earned wages, including commissions, must be paid no less frequently than semimonthly.” Peabody v. Time Warner Cable, Inc., 59 Cal. 4th 22 662, 668 (Cal. 2014) (emphasis in original).

Charter argues that summary judgment is appropriate because its commission plan complies with § 204. (See Mot. for Summ. J. at 24.) According to Charter, AEs earn commissions on a monthly basis, once they have met several criteria set out in Charter’s commission plan. (See Benner Decl. ¶¶ 17, 19, Exs. D, F.) Charter contends that numerous courts and the California Department of Labor Standards Enforcement (“DLSE”)--the California agency empowered to enforce California's labor laws, including wage orders--have recognized that “[c]omission programs which calculate the amount owed once a month (or less often) are common.” DLSE Opn. Letter No 2202.12.09-2 (2002); see also Chavez v. Time Warner Cable, LLC, 728 F. App’x 645, 648 (9th Cir. 2018) (“such agreements are permitted under California law and do not offend § 204”).

Plaintiff argues that Charter improperly conflates the determination of when a commission is earned with the determination of when an earned commission is required to be paid. “A commission is ‘earned’ when the employee has perfected the right to payment; that is, when all of the legal conditions precedent have been met. Such conditions precedent are a matter of contract between the employer and employee, subject to various limitations imposed by common law or statute.” Koehl v. Verio, Inc., 142 Cal. App. 4th 1313, 1335, (1st Dist. 2006) (quoting DLSE Opn. Letter No. 1999.01.09, p.2). While the DLSE and numerous courts interpreting § 204 have concluded that a commission plan that determines how much an employee has earned in commission once per month does not violate § 204, see Peabody, 59 Cal. 4th at 668, once the determination that an employee has earned commissions has been made, that employee must be paid during the next pay period. See id.

Plaintiffs contend that, while they “earned” their commissions at the conclusion of each “commission month,” which began on the 22nd of each month and ended on the 21st of the next month, the evidence shows that Charter did not pay plaintiffs until the second semimonthly pay period after the 22nd. (See Pls.’ SDF 23-26; Benner Decl. ¶¶ 17, 19, Exs. D, F, Q, R; Benner Dep. at 39:11-24.)

Charter argues that its payments were nonetheless timely. Although the commission month ended on the 21st of each calendar month, Charter states that AEs did not “earn” commissions until Charter had reviewed and verified any sales pursuant to the terms of its commission plan. (See Benner Decl., Ex. D at CHA/HAR 145, Ex. F at CHA/HAR 2468); Chavez v. Time Warner Cable Co. LLC, No. CV 12-05291-RGK (RZx), 2013 WL

12 12080302, at *4 (C.D. Cal. Feb. 20, 2013) (holding that employer had complied with § 204 by paying commissions on a monthly basis after taking a reasonable period of time to verify sales resulting in payment) (reversed on other grounds).

Charter does not provide any evidence in support of its assertion that it conducted additional verification of plaintiffs’ sales after the 21st of each month, or that this verification process lasted until the next calendar month such that payment during the second semimonthly pay period would be timely. Moreover, because a genuine dispute of material fact exists as to whether plaintiffs knowingly agreed to the terms of Charter’s commission plan, the court cannot conclude as a matter of law that Sinclair and Harper only “earned” their commissions upon the completion of the conditions laid out in the commission plans provided by Charter. See Koehl, 142 Cal. App. 4th at 1335 (“A commission is ‘earned’ when the employee has perfected the right to payment; that is, when all of the legal conditions precedent have been met. Such conditions precedent are a matter of contract between the employer and employee . . . .”).

For similar reasons, the court cannot conclude, as Charter argues, that Harper’s commission-based claims must fail because he never “earned” any commissions throughout the duration of his employment with Charter under the terms of his commission plan. Charter contends that Harper never completed the requisite number of monthly sales set out in the commission plan to “earn” any commissions. But undisputed evidence shows that Harper was paid $420 in commissions on January 19, 2018. (See Benner Decl., Ex. Q at CHA/HAR 57.)

The court will therefore deny Charter’s motion for summary judgment as to plaintiffs’ claim for violations of § 204.

4. California Labor Code §§ 221, 223, 224

Plaintiffs claim that Charter violated California Labor Code §§ 221, 223, and 224 by “unlawfully deducting, reducing, clawing back, or otherwise reconciling commissions owed to plaintiffs.” (FAC ¶ 47.)

a. Sections 221 and 224

California Labor Code §§ 221 and 224 protect employees against unlawful deductions of their earned wages. Under § 221, “It 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.” Section 224 authorizes certain deductions that an employee “expressly authorize[s] in writing,” but forbids deductions that amount to a “rebate or deduction from the standard wage . . . pursuant to wage agreement or statute.”

“[A]n employee's ‘wages’ or ‘earnings’ [under § 221] are the amount the employer has offered or promised to pay, or has paid pursuant to such an offer or promise, as compensation for that employee's labor.” Kemp v. Int'l Bus. Machs. Corp., No. 3:09-cv-03683, 2010 WL 4698490, at *5 (N.D. Cal. Nov. 4, 2010) (quoting Prachasaisoradej v. Ralphs Grocery Co., 42 Cal. 4th 217, 228 (Cal. 2007)). Commissions can qualify as wages under California Labor Code § 221, but as the court noted in Kemp, “the right of a salesperson or any other person to a commission depends on the terms of the contract for compensation.” Id. (citations omitted); see also Swafford, 383 F. Supp. 3d at 934. Accordingly, a California Labor Code § 221 claim requires “some showing that [the plaintiff] is contractually entitled to the commissions he claims to have been denied.” Swafford, 383 F.

14 Supp. 3d at 934.

Here, the parties dispute the number of earned commissions to which Harper was entitled in December 2017, and whether Charter fully paid him pursuant to the terms of his commission plan. (See Pls.’ Opp’n at 27; Def.’s Reply at 30.) Harper presents evidence of emails he sent to his manager in January 2018 indicating that Charter had not provided him with commissions for nine installs he completed in December. (See Harper Decl., Ex. 2.) Charter argues that Harper was not entitled to any commissions in December, because he failed to sell the threshold level of fifteen “Primary Service Units” (“PSUs”) required under the terms of his commission plan to “earn” commissions. (See Benner Decl., Ex. D.) Further, Charter argues that, even if Harper had been entitled to commissions for December, he only completed seven PSUs, for which he was fully paid in January 2018. (See Benner Decl., Ex. Q at CHA-HAR 57 (showing Harper was paid $420 in commissions, at a rate of $60 per PSU x 7 PSUs.)

Because the court has found that a disputed issue of material fact exists as to whether Harper knowingly agreed to the terms of the commission plan to which Charter refers, the court cannot rule as a matter of law that Harper failed to “earn” any commissions in December 2017 because he did not sell fifteen PSUs. See Kemp, 2010 WL 4698490, at *5 (“the right of a salesperson or any other person to a commission depends on the terms of the contract for compensation”). While Harper contends that he earned and was entitled to commissions for nine installs he completed in December, Charter argues that it properly paid him only for seven. There is therefore a disputed issue of material fact as to whether Charter unlawfully failed to pay Harper commission wages it had promised to pay pursuant to the agreement. See id.

Sinclair argues that Charter failed to pay him a commission for multiple sales he worked on that were ultimately transferred to a national sales AE before they were finalized. (See Sinclair Decl. ¶ 19; Sinclair Dep. 224:3-21.) Charter counters that, under the terms of Sinclair’s commission plan, a service had to be installed before a commission on that sale could be “earned.” (See Def.’s Reply at 31; Benner Decl., Ex. F.) Since Sinclair did not perform every step of the sales before they were completed, Charter contends that Sinclair did not “earn” the commissions to which he believes he is entitled. (See id.)

Again, a disputed issue of fact exists as to whether Sinclair knowingly agreed to the terms of the commission plan to which Charter refers. The court therefore cannot rule as a matter of law that Sinclair did not earn commissions for the sales at issue based on the terms of the commission plan which Charter argues applied at the time. Because the parties disagree as to whether Sinclair was entitled to commissions for sales in which he performed some, but not all, of the requisite work, the court concludes that a disputed issue of material fact exists as to whether Sinclair “earned” commission wages for those sales, and, therefore, whether Charter failed to pay Sinclair commission wages it had promised him as part of the commission plan. See Kemp,, No. 2010 WL 4698490, at *5. The court will therefore deny Charter’s motion for summary judgment as to plaintiffs’ Fifth Claim for violations of California Labor Code §§ 221 and 224.

b. Section 223 “Section 223 prohibits the secret payment of a lower wage while purporting to pay the wage required by statute or contract.” Johnson v. Hewlett-Packard Co., 809 F. Supp. 2d 1114, 1136 (N.D. Cal. 2011).

The text of section 223 does not support the existence of a private right of action because it does not set forth an entitlement to a wage or provide a penalty. See id.; Calop Business Systems, Inc. v. City of Los Angeles, 984 F. Supp. 981, 1015 (C.D. Cal. 2013). The court will therefore grant summary judgment in favor of Charter as to plaintiffs’ Fifth Claim for violation of California Labor Code § 223.

However, while § 223 does not provide plaintiffs with a private right of action, the court will still assess whether a genuine dispute of material fact exists, as a violation of § 223 (like a violation of § 2751(b)) may still form the basis of Harper’s PAGA claim and serve as a predicate violation for plaintiffs’ claims under the UCL discussed below.

As described above, both Harper and Sinclair have provided evidence sufficient evidence to create a disputed issue of material fact as to whether Charter paid them a lower commission wage than that to which they were entitled as part of their commission plans, while purporting to pay them the proper wage. See Johnson, 809 F. Supp. 2d at 1136. A genuine of fact therefore exists as to whether Charter violated the terms of California Labor Code § 223.

C. Plaintiffs’ Wage Statement Claims

California Labor Code § 226 requires that employers furnish their employees with accurate itemized statements in writing, showing gross wages earned, total hours worked, all deductions, net wages earned, all applicable hourly rates and the corresponding number of hours worked at each hourly rate, and the inclusive dates of all pay periods. Cal. Labor Code § 226(a). “An employee suffering injury as a result of a knowing and intentional failure by an employer to comply with subdivision (a) is entitled to recover the greater of all actual damages or [statutory penalties] and is entitled to an award of costs and reasonable attorney's fees.” Id. § 226(e)(1). Plaintiffs allege a number of violations of § 226 in their complaint, some of which are derivative of their misclassification-based claims and their commission-based claims, and some of which are independent. (See FAC ¶¶ 49-54.)

1. Whether Plaintiffs’ Derivative Wage Statement

Claims Must Fail Charter first argues that plaintiffs’ derivative wage statement claims must fail because the minimum wage, overtime, and meal and rest period claims from which they derive also fail. However, as discussed above, the court has found that genuine disputes of material fact remain as to plaintiffs’ minimum wage, overtime, and meal and rest period claims. Summary judgment in favor of Charter is therefore not warranted solely on this ground.

2. Whether the Statute of Limitations Bars

Plaintiffs’ Claims Charter further argues that plaintiffs’ wage statement claims are time-barred. Section 226 “has two applicable statutes of limitations--one year for penalties, and three years for damages.” Sarkisov v. StoneMor Partners, L.P., No. C 13-04834 WHA, 2014 WL 1340762, at *2 (N.D. Cal. 2014). Charter contends that, because Harper last worked for Charter in January 2018 and Sinclair last worked for Charter in July 2016, but Harper did not file his complaint until May 3, 2019, and Sinclair did not join the suit via the FAC until December 13, 2019, plaintiffs did not successfully assert their claims within the one-year limitations period for penalties, and to the extent that Sinclair has made out a claim for damages under the statute, he did not timely file within the three-year limitations period. (See Mot. for Summ. J. at 26; Docket Nos. 1, 45.)

As discussed above, in Section III.A.1., the relevant date for determining whether plaintiffs timely filed their claims is November 19, 2018. Since that date is less than a year from Harper’s last day, and less than three years from Sinclair’s last day, Charter’s argument that Harper’s wage statement claim for penalties or Sinclair’s claim for damages is time-barred fails. However, the court will grant summary judgment in favor of Charter as to Sinclair’s claim for penalties.

3. Whether Plaintiffs’ Claims Fail to Establish an

Actual Injury or a Knowing and Intentional Violation

Next, Charter contends that plaintiffs’ claim under § 226 fails as a matter of law because plaintiffs “cannot offer admissible evidence of actual damages.” (See Mot. for Summ. J. at 27.) Charter also argues in its reply that plaintiffs’ claim fails because plaintiffs cannot show that their injury occurred as a result of a “knowing and intentional” violation of § 226(e), as required under the statute, because Charter had a “good faith belief” that their wage statements were in compliance given their belief that plaintiffs were properly classified as outside salespersons. (See Def.’s Reply at 16.)

However, an employer’s showing that it acted under a good-faith belief that its employees were outside salespersons when issuing their wage statements is not sufficient to require that the employees’ § 226(e) claim must fail as a matter of law. See Novoa v. Charter Commc’ns, LLC, 100 F. Supp. 3d 1013, 1028 (E.D. Cal. 2015) (Ishii, J.) (“no court has granted summary judgment to an employer, finding that it acted in good faith when it violated Section 226(a); such a determination is generally a question for the factfinder to resolve at trial” (collecting cases) (internal quotation marks omitted)); Garnett v. ADT LLC, 139 F. Supp. 3d 1121, 1133 (E.D. Cal. 2015) (Shubb, J.) (“To the extent that some district courts have found that an employer can lack the necessary knowledge and intent if it had a good faith belief that its employee was exempt from section 226, this court disagrees.”). An employee may establish § 226’s “knowing and intentional” requirement by showing that his employer knowingly omitted information from his wage statements--he need not show that the employer knew that it was violating § 226’s statutory requirements. See Novoa, 100 F. Supp. 3d at 1028. A disputed issue of fact therefore remains as to whether Charter knowingly omitted information from plaintiffs’ wage statements in violation of § 226.

Plaintiffs have also submitted sufficient evidence that they suffered a cognizable “injury” sufficient to show actual damages. Courts have recognized that lost wages are a form of “all actual damages” recoverable under § 226(e)(1) because “[f]ailure to provide complete and accurate itemized paystubs could have made the alleged under-reporting of wages more difficult to detect and confront.” Sarkisov, 2014 WL 1340762, at *2; Arredondo v. Delano Farms Co, 301 F.R.D. 493, 547 (E.D. Cal. 2014) (Seng, J.). Here, plaintiffs seek lost minimum, overtime, premium, and commission wages, and assert that Charter’s failure to accurately itemize their total hours worked, their regular and overtime hours worked, the premium wages they were owed for meal periods and rest breaks not provided and the proper hourly rate for such premium wages, the commission wages they were owed, and the pay period for which they should have been paid made it more difficult for plaintiffs to determine from their wage statements the amount they should have been paid each pay period. (See FAC ¶ 54, Prayer for Relief ¶¶ C-D; Harper Decl. ¶ 16; Sinclair Decl. ¶ 14.); Tennison v. Hub Grp. Trucking, Inc., No. LA CV20-05076 JAK (SPx), 2020 WL 7714702, at *11 (C.D. Cal. Dec. 28, 2020) (“While there must be some injury in order to recover damages [under Section 226(e)], a very modest showing will suffice.”]. A genuine dispute of material fact therefore exists as to whether plaintiffs suffered a cognizable injury sufficient to recover actual damages under § 226.

4. Whether Charter’s Wage Statements Complied with

§ 226 Finally, Charter argues that summary judgment of plaintiffs’ wage statement claim is appropriate because Charter’s wage statements complied with the requirements of § 226. In the FAC, plaintiffs allege that Charter’s wage statements were deficient in the following ways:

(a) prior to 2018, wage statements did not include the inclusive dates of the relevant pay period and only included the end date; (b) prior to 2018, commission wages were included on a wage statement that was separate from the regular wage statement and the commission wages were not attributed to and paid for the pay periods in which they were earned; (c) prior to 2017 Charter did not accurately keep track of and include on wage statements the total hours worked by Outside Salesperson Class members; (d) wage statements never reflected any premium wages being paid to Plaintiffs and Outside Salesperson Class members for meal periods or rest breaks that were not provided or that were late, shortened, missed, or on- duty, both during training weeks and after training weeks; and (e) Plaintiffs’ final several wage statements failed to accurately record the time worked, wages due, and inclusive dates of the applicable pay periods, and failed to pay any waiting time penalties.

(FAC ¶ 52.)

Charter contests each of these allegations. Charter first asserts that all of plaintiffs’ wage statements--with the exception of Sinclair’s wage statements from 2015--included the inclusive dates of the relevant pay period. (See Mot. for Summ. J. at 27.) Charter argues that Sinclair’s 2015 wage statements, though admittedly violative, cannot form the basis of a valid § 226 claim because wage statement claims are governed by a one- year statute of limitations, and Sinclair did not file the FAC until December 2019.

However, plaintiffs have produced evidence showing that the “Pay Begin Date” and “Pay End Date” on several of Harper’s wage statements were not accurate with respect to the applicable 22nd-to-21st “commission month” for earning commissions. (See Benner Decl., Ex. Q, at CHA/HAR 52 (listing begin date as 10/20/17 and end date as 11/02/17), CHA/HAR 54 (listing begin date as November 17, 2017 and end date as 11/30/17), CHA/HAR 57 (listing begin date as 12/15/17 and end date as 12/21/17).) As for Sinclair’s claim, the court finds that it is not barred as to violations that occurred on or after November 19, 2015, given that Sinclair is seeking actual damages and thus the three-year statute of limitations applies, and plaintiffs have submitted evidence showing that Sinclair’s December 31, 2016 wage statement is missing a “Period Beginning” date. (See Benner Decl., Ex. R, at CHA/HAR 404.) The court therefore finds that genuine disputes of material fact exist as to plaintiffs’ claim for wage statement violations based on Charter’s failure to provide inclusive dates of the relevant pay period.

Charter next argues that it is “not aware of any requirement that commission payments be included on the same wage statement as Plaintiffs’ biweekly wages.” (See Mot. for Summ. J. at 27.) Labor Code § 226(e) requires employers to furnish employees with accurate and complete information required by the statute so that employees may “promptly and easily determine from the wage statement alone . . . [t]he amount of the gross wages or net wages paid to the employee during the pay period.” Cal. Labor Code §§ 226(e)(1), (e)(2)(b)(i).

Both plaintiffs state in their declarations that they were not able to promptly and easily determine from their wage statements the total gross and net wages they were paid for a pay period that included payment of both salary and commission wages. (See Harper Decl. ¶ 16; Sinclair Decl. ¶ 14.) That is understandable given that the beginning and end dates listed on Charter’s commission wage statements do not correspond with Charter’s 22nd-to-22st “commission month,” and that the commission statements list two different pay periods, one of which does not correspond with the pay period listed on the salary statement. (See Benner Decl., Ex. Q, at CHA/HAR 51-52 (listing “Begin Dates” of 10/20/17 and 11/03/17, and “End Dates” of 11/02/17 and 11/16/17), CHA/HAR 53-54 (listing “Begin Dates” of 11/17/17 and 12/01/17, and “End Dates” of 11/30/17 and 12/14/17), CHA/HAR 56-57 (listing “Begin Dates” of 12/15/17, 12/29/17 and 1/10/18, and “End Dates” of 12/21/17, 1/10/18, and 1/11/18).) There is therefore a genuine dispute of material fact as to whether Charter’s practice of splitting wages between two wage statements that covered the same pay period violated § 226.

Finally, Charter argues that plaintiffs’ claims fail to the extent they are based on allegations that, prior to 2017, Charter’s wage statements did not include total hours worked. (See Mot. for Summ. J. at 27-28.) The court agrees that, because Charter did not hire Harper until September 2017, this claim fails as to Harper to the extent it is based on allegations regarding wage statements prior to 2017. (See Harper Dep. 62:19- 63:9, 78:16-79:1). However, Harper has alleged other violations of § 226 (see FAC ¶ 52) for which the court has found that genuine disputes of material fact exist. For instance, as discussed above, Harper has presented evidence sufficient to create an issue of material fact that Charter’s wage statements did not include accurate “Pay Begin” or “Pay End” dates, and that Charter’s practice of splitting his wage statements into separate statements for salary and commission prevented him from promptly and easily determining how much he had earned during a specific pay period from the statement alone. The court will therefore not grant summary adjudication as to Harper’s Sixth Claim for violations of § 226.

The court disagrees with Charter’s argument that this claim also fails as to Sinclair. Charter contends that, effective January 1, 2017, the California Legislature clarified that employers were not required to show hours worked for exempt positions, including outside salespersons, when it amended § 226 by adding subjection (j). Notwithstanding the fact that Charter fails to provide any authority indicating the California Legislature intended subsection (j) to apply retroactively, the text of subsection (j) indicates that it only applies when the employee is exempt from the payment of minimum wage and overtime under the “exemption for outside salesperson provided in any applicable order of the Industrial Welfare Commission.” Cal. Labor Code § 226(j)(2)(B). Because a genuine dispute of material fact exists as to whether Sinclair was properly classified as an outside salesperson, the court finds that a genuine dispute of material fact exists as to whether Charter’s wage statements violated § 226 by failing to include total hours worked prior to 2017.

The court will therefore deny summary judgment as to Harper’s Sixth Claim, and grant summary judgment in favor of Charter as to Sinclair’s Sixth Claim for penalties.

D. Plaintiffs’ Waiting Time Penalty Claims

Plaintiffs’ seventh claim alleges that they are entitled to waiting time penalties under California Labor Code § 203. (FAC ¶¶ 55-58.) Under Labor Code § 203, if “an employer willfully fails to pay, without abatement or reduction, in accordance with Section[] 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,” up to 30 days. Cal. Labor Code § 203(a). Plaintiffs allege that they were owed premium wages pursuant to Labor Code § 226.7 because Charter failed to provide them with compliant meal and rest breaks, and that they were owed commission wages because Charter failed to correctly pay all commission wages that were earned and payable. (FAC ¶ 57.) Because Charter did not pay these wages to plaintiffs upon their termination, plaintiffs argue they are entitled to waiting time penalties under Labor Code § 203. (See id.)

The parties agree that plaintiffs’ waiting time penalties claim is entirely derivative of their misclassification-based and commission-based wage claims. (See Mot. for Summ. J. at 28; Pls.’ Opp’n at 31.) Because the court has found that genuine issues of material fact exist as to plaintiffs’ underlying misclassification-based and commission- based wage claims, the court will not grant summary judgment in favor of Charter solely on this ground. (See Mot. for Summ. J. at 28.)

Charter further argues that meal and rest period claims cannot form the basis of a waiting time penalties claim because Labor Code § 226.7 meal and rest break premiums do not constitute “wages earned” for the purposes of Labor Code § 203. (See Mot. for Summ. J. at 28.) Under California law, an employer that fails to provide an employee with a legally compliant meal or rest period is required to pay the employee “one additional hour of pay at the employee's regular rate of compensation for each workday that the meal or rest...period is not provided.” Cal. Labor Code § 226.7(c). The question of whether these ordered payments constitute wages or penalties for the purposes of a waiting time penalties claim has divided district courts in California. See Finder v. Leprino Foods Co., No. 1:13-cv-2059 AWI BAM, 2015 WL 1137151, at *5 (E.D. Cal. Mar. 12, 2015) (acknowledging “[t]here is no clear answer” from conflicting decisions of the district courts of California).

This division among courts stems from two seemingly contradictory decisions by the California Supreme Court: Murphy v. Kenneth Cole Productions, 40 Cal. 4th 1094 (Cal. 2007), and Kirby v. Immoos Fire Protection, Inc., 53 Cal. 4th 1244, 1257 (Cal. 2012). In Murphy, the court considered the nature of § 226.7 payments for purposes of determining the applicable limitations period for a claim under the statute. Murphy, 40 Cal. 4th at 1110. After examining the language, legislative history, and purpose of § 226.7, Murphy concluded that “the ‘additional hour of pay’ is a premium wage intended to compensate employees, not a penalty.” Id. at 1114. Kirby, by contrast, held that, for purposes of awarding attorneys’ fees for the nonpayment of wages, “a section 226.7 claim is not an action brought for nonpayment of wages; it is an action brought for non- provision of meal or rest breaks.” Kirby, 53 Cal. 4th at 1257.

The Kirby court explained that its decision was “not at odds with our decision in Murphy.” See id. Instead, the court explained, Murphy determined that the remedy for a § 226.7 violation is a wage, while Kirby determined that the legal violation triggering that remedy is the failure to provide a meal or rest period, not the nonpayment of wages. See id. Because Kirby was concerned with characterizing the nature of the § 226.7 claim itself, whereas Murphy focused on the nature and characterization of the relief for that claim, the court held in Finder that that Murphy was the more directly relevant precedent and, therefore, that failure to pay premium wages under § 226.7 may form the basis for a waiting time penalties claim. See Finder, 2015 WL 1137151, at *8.

Charter contends that a recent California Court of Appeals decision, Naranjo v. Spectrum Security Servs., Inc., 40

5 Cal. App. 5th 444, 474 (2d Dist. 2019), should take precedence over the interpretation of § 226.7 offered in Finder. (See Mot. for Summ. J. at 29; Def.’s Reply (“Reply”) at 20 (Docket No. 103).) There, the court expressly held that premiums under § 226.7 are not wages for the employee’s labor, work, or service, but rather a penalty for the employer’s recalcitrance. See Naranjo, 40 Cal. App. 5th at 473. “Read this way, an employer's failure, however willful, to pay section 226.7 statutory remedies does not trigger section 203’s derivative penalty provisions for untimely wage payments.” Id. at 473−74.

However, as Judge Ishii recently pointed out in Bates v. Leprino Foods Co., No. 2:20-cv-00700 AWI BAM, 2020 WL 6392562 (E.D. Cal. Nov. 2, 2020), the California Supreme Court is currently reviewing Naranjo and, thus, Naranjo “has no binding or precedential effect, and may be cited for potentially persuasive value only.” Bates, 2020 WL 6392562, at *5 (quoting Cal. R. Ct. 8.1115(e)(1)). In light of Naranjo’s non-precedential effect, the court in Bates found no reason to deviate from Finder and held that § 226.7 premiums are wages for the purposes of a waiting time penalties claim under § 203.

This court agrees with Judge Ishii’s analyses in Finder and Bates that, under California Supreme Court precedent, § 226.7 premiums are wages for purposes of §203 waiting time penalties claims. Because the only contrary California precedent, Naranjo, lacks precedential value, the court will deny summary judgment as to plaintiffs’ Seventh Claim for waiting time penalties based on Charter’s failure to pay § 226.7 premiums.

E. Plaintiffs’ Untimely Production of Employment Records

Claims Plaintiffs’ Eighth Claim alleges that Charter failed to timely produce copies of their “personnel file[s], including all wage statements, instruments [they] signed or acknowledged concerning [their] employment, and other records concerning [their] obtaining and holding of employment . . . .” (FAC ¶¶ 61, 63.) Plaintiffs rely on three California Labor Code provisions. First, § 226(b) gives current and former employees a right to inspect or copy their employment records, and permits an employer to take “reasonable steps” to ensure the identity of a current or former employee. Cal. Labor Code §§ 226(b). Section 226(c) requires that the employer comply with a § 226(b) request as soon as practicable, but no later than 21 calendar days from the date of the request. Id. at § 226(c).

Second, § 1198.5 provides that “[e]very current and former employee . . . has the right to inspect and receive a copy of the personnel records that the employer maintains relating to the employee's performance or to any grievance concerning the employee.” Cal. Labor Code § 1198.5. The employer must make the contents of the personnel records available for inspection at a reasonable time, but no later than 30 days from the request. Id. Section 1198.5 also permits an employer to take “reasonable steps” to verify the identity of a current or former employee or his or her authorized representative. Id. at § 1198.5(e). Finally, under § 432, “[i]f an employee ... signs any instrument relating to the obtaining or holding of employment, he shall be given a copy of the instrument upon request.” See Cal. Labor Code § 432.

On June 5, 2018, plaintiffs’ counsel prepared and sent a letter via email to Charter’s in-house counsel requesting Harper’s wage statements, personnel file records, and other employment records. (See Soderstrom Decl. ¶ 19.) Plaintiffs’ counsel attached an authorization for the release of employment records signed by Harper using “DocuSign.” (See id.; Harper Decl. ¶ 23.) On July 3, 2018, counsel for Charter sent an email and letter to plaintiffs’ counsel advising him that it was Charter’s position that his request for Harper’s wage statements under § 226(b) was not valid, and that Harper would have to make the request himself before Charter would produce the records. (See Shine Decl. ¶ 7, Ex. F.) After further discussion between plaintiffs’ and Charter’s counsel, on July 18, 2018, Charter’s counsel agreed to produce the documents requested by plaintiffs’ counsel within a week. (See id. at ¶ 8.)

However, on July 23, 2018, Charter’s in-house counsel received an email directly from Harper, who stated that he did not currently have representation. (See id. at ¶ 9.) The next day, counsel for Charter reached out to plaintiffs’ counsel to confirm that he was indeed representing Harper. (See id.) Plaintiffs’ counsel sent Charter’s counsel a redacted version of his attorney-client agreement with Harper two weeks later, on August 13, 2018, and Harper emailed Charter’s counsel directly on August 29, 2018 to confirm representation. (See id. at ¶ 10-11.) Six days later, on September 4, 2018, Charter provided plaintiffs’ counsel with copies of his wage statements and documents from his personnel file. (See id. at ¶ 11; Soderstrom Decl. ¶ 21.) Plaintiffs’ counsel asserts that this production was deficient under § 1198.5 because it omitted certain documents related to Harper’s employment, including corrective action reports. (See Soderstrom Decl. ¶ 21.)

Plaintiffs’ counsel prepared and sent a similar letter requesting that Charter produce Sinclair’s wage statements, personnel file records, and other employment records on October 2, 2019. (See Soderstrom Decl. ¶ 25.) Charter produced copies of Sinclair’s wage statements and personnel file records on October 17, 2019. (See id. at ¶ 26.) Plaintiffs’ counsel also asserts that Charter’s production as to Sinclair was deficient under § 1198.5 because it omitted numerous wage statements and corrective action reports. (See id.)

To begin with, the court agrees with Charter that summary adjudication as to § 432 is appropriate. “While §§ 226(c) and 1198.5 expressly include ‘former employees,’ the plain language of § 432 limits applicability to ‘employees or applicant[s],’ omitting any reference to former employees.” Harris v. Best Buy Stores, L.P., No. 15-cv-00657-HSG, 2016 WL

23 4073327, at *10 (N.D. Cal. Aug. 1, 2016) (quoting Cal. Labor Codes §§ 226(c), 432, 1198.5); see also Arizona Elec. Power Co- op., Inc. v. United States, 816 F.2d 1366, 1375 (9th Cir. 1987) (“When Congress includes a specific term in one section of a statute but omits it in another section of the same Act, it should not be implied where it is excluded.”); Briggs v. Eden Council for Hope & Opportunity, 19 Cal. 4th 1106, 1117 (1999) (“Where different words or phrases are used in the same connection in different parts of a statute, it is presumed the Legislature intended a different meaning.”). Because plaintiffs do not dispute that their requests for records were made after they were no longer employees, § 432 cannot apply here.

With respect to § 1198.5, the court declines to interpret the term “personnel records” in the narrow fashion urged by Charter. Plaintiffs argue that, in response to their requests, Charter failed to include corrective action reports, letters related to their termination, and commission plan documents and receipts in its production. Without citing to any authority, Charter argues that “personnel records” are “not so expansively defined in § 1198.5 or case law.” To the contrary, the case law indicates that § 1198.5 “intends a broad definition of ‘personnel file’ to preclude employers from assigning documents to files having some other name, and then refusing access to the documents on the ground that they are not contained in the ‘personnel file.’” Wellpoint Health Networks, Inc. v. Superior Court, 59 Cal. App. 4th 110, 124 (2d Dist. 1997). Common sense also dictates that at least some of the documents omitted by Charter, such as corrective action reports, fall within the plain text of the statute, as they are “personnel records . . . relating to the employee's performance or to any grievance concerning the employee.” Cal. Labor Code § 1198.5. The court will therefore deny Charter’s motion for summary adjudication of plaintiffs’ claim under § 1198.5.

Finally, as to § 226(b), the court again declines to adopt the narrow interpretation of the statute put forward by Charter. Charter argues that § 226(b) only authorizes current or former employees--and not their representatives--to inspect or receive a copy of their own wage statements. Because plaintiffs’ counsel sent Charter a request for plaintiffs’ wage statements under § 226 (not plaintiffs themselves), Charter argues that plaintiffs’ claim under § 226 fails as a matter of law.

Charter points out that, in contrast to § 1198.5, § 226 does not explicitly state that an employee’s representative may submit a request to inspect records. Compare Cal. Labor Code § 1198.5 (“Upon a written request from a current or former employee, or his or her representative, the employer shall also provide a copy of the personnel records.”) with Cal. Labor Code § 226(b) (“An employer . . . shall afford current and former employees the right to inspect or receive a copy of records pertaining to their employment, upon reasonable request to the employer.”). However, Charter does not cite to a single case where a court has held that a request made by a current or former employee’s representative is insufficient as a matter of law under § 226(b). Section 226(b)’s only requirement pertaining to the employee’s request is that it be “reasonable.” The court finds that, here, a genuine issue of material fact exists as to whether plaintiffs’ requests to inspect and receive copies of their wage statements pursuant to § 226(b) were reasonable, given that they were signed by counsel and accompanied by an executed authorization signed by plaintiffs electronically. (See Shine Decl., Ex. E.)

The court also finds that genuine issue of material fact exists as to whether the timing of Charter’s production of Harper’s wage statements fully satisfied § 226(b). The evidence shows that Charter did not produce Harper’s wage statements for 91 days after receiving Harper’s request. (See Soderstrom Decl. ¶¶ 18-21, Ex. 18.) While Charter contends that this delay occurred as a result of “reasonable steps” taken by Charter to verify Harper’s identity and whether he was represented by counsel, Charter did not initiate any efforts to verify Harper’s identity or that of his counsel until after the 21-day deadline set out in § 226 had already passed. (See id.); Cal. Labor Code § 226(c). A reasonable jury could therefore find that Charter’s response was not timely and that the steps that it took to verify Harper’s identity and whether he was represented by counsel were not reasonable under the statute.

As to Sinclair’s claim under § 226, plaintiffs have submitted evidence showing Charter’s production of Sinclair’s wage statements was incomplete and omitted at least 17 wage statements. (See Soderstrom Decl. ¶¶ 25-26; Benner Decl., Ex. R.) There is therefore a genuine dispute of material fact as to whether Charter fully satisfied its obligations to Sinclair under § 226(a). See Harris, 2016 WL 4073327, at *11 (denying summary judgment because there was a factual dispute over whether employer had “fully satisfied” its § 226 obligations).

The court will therefore deny Charter’s motion for summary judgment as to plaintiffs’ Eighth Claim for violations of California Labor Code §§ 226 and 1198.5. The court will, however, grant summary adjudication in favor of Charter as to plaintiffs’ claim for violation of California Labor Code § 432.

F. Plaintiffs’ Claims under the UCL

Plaintiffs’ Ninth Claim alleges that Charter has committed acts of unfair competition, as defined by the California Business and Professions Code § 17200, by violating various provisions of the California Labor Code. (FAC ¶¶ 65-73.) Charter’s only argument in support of summary judgment is that plaintiffs’ UCL claim is derivative of their First through Fifth Claims. (See Mot. for Summ. J. at 32; Pls.’ Opp’n at 37.) Because the court has found that a genuine dispute of material fact exists as to plaintiff’s underlying California Labor Code claims, the court will not grant Charter’s motion for summary adjudication as to plaintiffs’ UCL claim. See Cortez v. Purolator Air Filtration Prods., 23 Cal. 4th 163, 178-79 (Cal. 2000) (holding unpaid wages are recoverable as restitution under the UCL).

G. Harper’s PAGA Claim

PAGA authorizes employees to recover civil penalties for violations of the California Labor Code “as the proxy or agent of the state’s labor law enforcement agencies.” Kim v. Reins Int’l Cal., Inc., 9 Cal. 5th 73, 82 (Cal. 2020) (emphasis and citations omitted). Only an “aggrieved employee,” or a person “who was employed by the alleged violator and against whom one or more of the alleged violations was committed” may serve as the state’s representative in a PAGA action. Id. (quoting Cal. Labor Code § 2699(c)).

Only Harper has brought claims under PAGA. (See FAC ¶¶ 74-75.) Charter first argues that summary judgment as to Harper’s PAGA claim is appropriate because Harper cannot show that Charter committed violations of any underlying substantive provisions of the California Labor Code. However, because the court has found that disputed issues of material fact exist as to Harper’s claims under other substantive provisions of the California Labor Code, as discussed above, a disputed issue of material fact also exists as to whether Harper is an aggrieved employee under PAGA.

Charter next argues that Harper’s PAGA claim is time- barred. A plaintiff must file a PAGA action within one year of the alleged underlying Labor Code violation. Cal. Code Civ. P. § 340(a); Esparza v. Safeway, Inc., 36 Cal. App. 5th 42, 59 (2d Dist. 2019). The statute of limitations for the filing of the PAGA lawsuit is tolled for the sixty-five day notice period. Thus, as a practical matter, the statute of limitations for the filing of the LWDA letter is one year, and the statute of limitations for the filing of the PAGA lawsuit is one year and sixty five days (or 430 days total). Bush v. Vaco Tech. Servs., LLC, 2018 WL 2047807 at *13 (N.D. Cal. May 2, 2018). The statute of limitations begins to run when a cause of action accrues, meaning when the cause of action is complete with all of its elements. Esparza, 36 Cal. App. 5th at 59.

Charter contends that, because Harper was on an unpaid leave of absence from February 3, 2018 through the end of his employment, Harper last performed work for Charter on January 30, 2018. (See Benner Decl. ¶¶ 34-36, Exs. O-Q.) Thus, in order to file a timely PAGA action based on an alleged minimum wage, overtime, meal period, rest period, or wage statement violation, Harper would have had to file his complaint no later than April 5, 2019 (430 days after January 30, 2018). (See Mot. for Summ. J. at 33.) Because Harper filed his complaint on May 3, 2019, Charter argues that Harper failed to timely file his PAGA claim within the applicable statute of limitations and, as a result, the court should dismiss his PAGA claim. (See id.)

However, as discussed above, in Section III.A.1, the statute of limitations governing the claims in Harper’s original complaint--including his PAGA claim--may be equitably tolled to November 19, 2018. Charter’s argument that Harper failed to comply with the statute of limitations is therefore without merit.

Accordingly, the court will deny Charter’s motion for summary judgment as to Harper’s PAGA claim.

IT IS THEREFORE ORDERED that defendant’s motion for summary judgment or, in the alternative, summary adjudication (Docket No. 93-1) be, and the same thereby is, DENIED as to Sinclair’s First, Second, Third,, Fourth, and Sixth Claims for damages, Harper’s First, Second, Third, Fourth, Sixth, and Tenth Claims, as well as Plaintiffs’ Fifth Claim for violations of Cal. Labor Code § 204, 221, and 224, Seventh Claim, and Eighth Claim for violations of §§ 1198.5 and 226.

IT IS FURTHER ORDERED that defendant’s motion for summary judgment or, in the alternative, summary adjudication (Docket No. 93-1) be, and the same hereby is, GRANTED as to Sinclair’s First, Second, Third, Fourth, and Sixth Claims for statutory penalties, as well as Plaintiffs’ Fifth Claim for violations of Cal. Labor Code §§ 2751(b) and 223, and Eighth Claim for violations of Cal. Labor Code § 432.

Dated: February 12, 2021