Arce v. Ensign Grp., Inc.

96 Cal.App.5th 622

314 Cal.Rptr.3d 493

Cecilia ARCE, Plaintiff and Appellant,

v.The ENSIGN GROUP, INC. et al., Defendants and Respondents.

B317161

Court of Appeal, Second District, Division 5, California.

Filed September 19, 2023

Mahoney Law Group, Kevin Mahoney and George Singer, Long Beach, for Plaintiff and Appellant.

Call & Jensen, Julie R. Trotter, Melinda Evans, Morgan E. Podruski and Ellen Connelly Cohen, Newport Beach, for Defendants and Respondents.

RUBIN, P. J.

INTRODUCTION

Plaintiff and appellant Cecilia Arce claims the nursing facility where she worked as an aide for nine years was so chronically understaffed—and she was so persistently overworked—that she never took a rest break and frequently had to work through her meal breaks. After her termination, Arce brought a claim under the Labor Code Private Attorneys General Act of 2004 (PAGA) ( Lab. Code, § 2698 et seq. ) against defendants and respondents Southland Management LLC (Southland) and The Ensign Group Inc. (Ensign Group).¹

Respondents moved for summary judgment, arguing that Arce lacked standing to bring a representative PAGA action because she did not suffer a Labor Code violation within the limitations period. But the trial court granted summary judgment on a different, and perhaps broader, issue, holding that Arce had not offered any "competent proof that one or more cognizable Labor Code violation[s] occurred during her employment in connection with her right to meal and rest periods." The court entered a judgment of dismissal, and Arce appeals.

On appeal, Arce contends respondents did not meet their initial burden of establishing her lack of standing, and as such, the court erred by granting summary judgment. We agree. We, therefore, reverse and remand with directions.

BACKGROUND

1. Arce's Work as a Certified Nursing Assistant

Southland operates Southland Care Center, a skilled nursing facility in Los Angeles. In 2009, Southland hired Arce to work as a certified nursing assistant (CNA).² As a CNA, Arce provided her assigned patients with routine daily nursing care and services, such as assisting them with bathing and brushing their teeth, keeping them comfortable, and attending to their basic hygiene needs.

Arce primarily worked the overnight shift, from 11:00 p.m. to 7:00 a.m. It appears Southland Care Center had three floors of patients, with 40 patients on each floor. Six CNAs and three licensed vocational nurses (LVNs) were assigned to the overnight shift—two CNAs and one LVN per floor.

Even with a typical load of 20 patients per CNA, Arce did not have sufficient time to accomplish her assigned tasks. But if one of the CNAs called in sick, the LVN would divide the absent CNA's patients among the remaining CNAs on other floors, increasing each person's workload. The system increased stress on patients, who were left unattended when CNAs had to respond to different floors. And, with only one CNA available rather than the usual two, taking a break also meant leaving the patients unattended.

Likewise, if an LVN needed help, she would call Arce or another CNA to assist her, regardless of whether that person was taking a break. When the LVN asked for assistance at these times, Arce initially tried telling her she was off the clock. But the LVN's response "was that there was an emergency, if—that there was a patient, either a patient was forward, or she needed help, so [Arce] went to help her. [Arce] thought it was [her] duty to do it." Although no one ever told Arce she was expected to interrupt her meal periods to help the LVN in these circumstances, Arce believed the LVN "was above" her, so she "understood, to [her] knowledge, that [she] was supposed to do what [the LVN] asked" of her.³

Arce worked her last shift on November 8, 2018. She received payment for her accrued vacation time on November 19, 2018, and received her final wage statement on November 21, 2018, which was payment for the hours she had worked during her last pay period. These dates are relevant to our analysis. Neither wage statement contained premium wages for missed meal and rest breaks.

On November 23, 2018, Arce's employment was terminated.

2. PAGA Notice

On November 15, 2019, Arce submitted a prefiling PAGA notice to the California Labor and Workforce Development Agency (LWDA). As relevant here, the notice stated:

"Ms. Arce will further allege in her complaint that she and her coworkers were regularly interrupted during and/or forced to forego lawful and timely meal and rest periods due to inadequate staffing and other issues. Employer routinely required Ms. Arce and aggrieved employees to work through meal and/or rest periods and/or interrupted Ms. Arce, preventing her from taking off-duty meal periods or on duty rest periods. Employer failed to provide compliant meal and rest periods and/or payments for said missed meal/rest periods."

3. Current Lawsuit

Arce filed a class action complaint on November 19, 2019. In the complaint, she stated that she had given written notice of her PAGA claims to the LWDA and intended to amend her complaint upon either receiving notice of the LWDA's intent not to investigate or the expiration of the LWDA's time to provide notice. She also stated that her amended complaint would assert a representative action under PAGA seeking penalties for the State of California.

Arce filed the operative first amended complaint on March 6, 2020. The complaint did not allege any individual or class claims. Instead, Arce asserted six causes of action for PAGA violations: failure to pay all wages (first cause of action), failure to provide meal periods (second cause of action), failure to provide rest periods (third cause of action), failure to timely pay wages due upon separation of employment (fourth cause of action), failure to maintain accurate payroll records (fifth cause of action), and unlawful deduction of wages (sixth cause of action).

Respondents moved for summary judgment. They argued that Arce did not suffer any Labor Code violations during the limitations period, and thus lacked standing to pursue PAGA claims. They also sought, in the alternative, summary adjudication of four issues: (1) Arce did not satisfy PAGA's prefiling notice requirement with respect to her assertion that she was not compensated for all her working time; (2) Arce did not satisfy PAGA's prefiling notice requirement because she did not include facts or theories as to how Ensign Group could be considered her joint employer; (3) Ensign Group was not Arce's employer; and (4) the sixth cause of action did not raise a triable issue of material fact because the challenged deduction was lawful.

The court granted summary judgment in respondents’ favor. The court rejected respondents’ arguments that Arce's prefiling notice was insufficient. It held, however, that in opposing the motion, Arce had not presented sufficient competent evidence that she had suffered a Labor Code violation at any point during her employment, and, therefore, had not established a triable issue of material fact that she had standing to pursue a PAGA claim. The court also concluded that Arce had not raised a triable issue of material fact as to the sixth cause of action, which concerned the legality of a payroll offset to account for a class-action settlement. The court did not decide the issue of which party was Arce's actual employer.

The court entered a judgment of dismissal, and Arce timely appealed.

DISCUSSION

Arce contends the trial court erroneously granted summary judgment because respondents did not present evidence sufficient to negate the standing element of her PAGA claims. We agree.

1. Standard of Review

The standard of review of an order granting summary judgment is well established. "The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute." ( Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843, 107 Cal.Rptr.2d 841, 24 P.3d 493.) The moving party "bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law." ( Id . at p. 850, 107 Cal.Rptr.2d 841, 24 P.3d 493 ; see also Code Civ. Proc., § 437c, subd. (c).) The pleadings determine the issues to be addressed by a summary judgment motion. ( Nieto v. Blue Shield of California Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 74, 103 Cal.Rptr.3d 906.)

On appeal from a summary judgment, we review the record de novo and independently determine whether triable issues of material fact exist.

( Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767, 107 Cal.Rptr.2d 617, 23 P.3d 1143 ; Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334, 100 Cal.Rptr.2d 352, 8 P.3d 1089.) We resolve any evidentiary doubts or ambiguities in favor of the party opposing summary judgment. ( Saelzler , at p. 768, 107 Cal.Rptr.2d 617, 23 P.3d 1143.) In performing this independent review, "we follow the traditional three-step analysis. ‘We first identify the issues framed by the pleadings, since it is these allegations to which the motion must respond. Secondly, we determine whether the moving party has established facts which negate the opponents’ claim and justify a judgment in the movant's favor. Finally, if the summary judgment motion prima facie justifies a judgment, we determine whether the opposition demonstrates the existence of a triable, material factual issue.’ " ( Shamsian v. Atlantic Richfield Co. (2003) 107 Cal.App.4th 967, 975, 132 Cal.Rptr.2d 635.) "We need not defer to the trial court and are not bound by the reasons in its summary judgment ruling; we review the ruling of the trial court, not its rationale." ( Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 630, 32 Cal.Rptr.3d 266.)

2. Applicable Labor Code Principles

"California's Labor Code contains a number of provisions designed to...