1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

CASE NO. 5:17-CV-00062-LHK

WALMART’S POST-TRIAL BRIEF 

Aaron T. Winn (State Bar No. 229763) 

atwinn@duanemorris.com 

750 B Street, Suite 2900 

San Diego, CA 92101 

(619) 744-2222 

Natalie F. Hrubos, 307255, Admitted Pro Hac Vice

nfhrubos@duanemorris.com 

30 South 17th Street 

Philadelphia, PA 19103 

(215) 979-1962 

DUANE MORRIS LLP

Attorneys for Defendants 

Wal-Mart Associates, Inc. and Wal-Mart Stores, Inc. 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA

RODERICK MAGADIA, individually 

and on behalf of all those similarly 

situated, 

Plaintiff, 

v. 

WAL-MART ASSOCIATES, INC. a 

Delaware corporation; WAL-MART 

STORES, INC, a Delaware corporation; 

and DOES 1 through 50, inclusive, 

Defendants. 

 CASE NO. 5:17-cv-00062-LHK 

WALMART’S POST-TRIAL BRIEF 

 

Case 5:17-cv-00062-LHK Document 215 Filed 12/07/18 Page 1 of 20
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

 1 CASE NO. 5:17-CV-00062-LHK 

WALMART’S POST-TRIAL BRIEF 

TABLE OF CONTENTS 

Page 

INTRODUCTION ................................................................................................................ 6

THE MEAL PERIOD PREMIUM CLAIMS ....................................................................... 6 

THE WAGE STATEMENT CLAIMS ................................................................................. 7 

A. “Knowing and intentional” means what it says. ........................................... 8 

B. Walmart acted in good faith to comply with section 226(a)(9). .................... 9 

C. Walmart acted in good faith to comply with section 226(a)(6). .................. 10 

D. Magadia has not established injury. ........................................................... 11 

THE PAGA CLAIMS ALSO FAIL .................................................................................... 14 

MAGADIA’S EVIDENCE DOES NOT SUPPORT ANY MONETARY AWARD ........... 16 

CONCLUSION .................................................................................................................. 19 

 

Case 5:17-cv-00062-LHK Document 215 Filed 12/07/18 Page 2 of 20
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

 2 CASE NO. 5:17-CV-00062-LHK 

WALMART’S POST-TRIAL BRIEF 

TABLE OF AUTHORITIES 

 Page(s) 

Federal Cases 

Aguirre v. Genesis

2013 WL 10936035 (C.D. Cal. Dec. 30, 2013) .............................................................. 15 

Apodaca v. Costco Wholesale Corp.

No. CV12–5664 DSF (Ex), 2014 WL 2533427 (C.D. Cal. Jun. 5, 2014) ........................ 8 

Cotter v. Lyft, Inc.

193 F. Supp. 3d 1030 (N.D. Cal. 2016) .................................................................... 15-16 

F.C.C. v. Fox Television Stations, Inc.

567 U.S. 239 (2012) ......................................................................................................... 9

Fobroy v. Video Only, Inc.

2014 WL 6306708 (N.D. Cal. Nov. 14, 2014)................................................................ 15 

Gen. Elec. Co. v. Joiner

522 U.S. 136 (1997) ....................................................................................................... 17 

Gofron v. Picsel Techs., Inc.

804 F. Supp. 2d 1030 (N.D. Cal. 2011) ......................................................................... 15 

Guifu Li v. A Perfect Day Franchise, Inc.

2012 WL 2236752 (N.D. Cal. June 15, 2012) (Koh, J.) ................................................ 15 

Harris v. Best Buy Stores, L.P.

2018 WL 984220 (N.D. Cal. Feb. 20, 2018) .................................................................. 14 

Lierboe v. State Farm Mut. Auto. Ins. Co.

350 F.3d 1018 (9th Cir. 2003) ......................................................................................... 7 

Lumens Co. v. GoEco LED LLC

No. SACV1401286CJCDFMX, 2018 WL 1942768 (C.D. Cal. Jan. 3, 

2018) .............................................................................................................................. 17 

Mazza v. Am. Honda Motor Co.

666 F.3d 581 (9th Cir. 2012) ......................................................................................... 12 

Mie Yang v. Francesca’s Collections, Inc.

2018 WL 984637 (N.D. Cal. Feb. 20, 2018) .................................................................. 13 

Novoa v. Charter Commc’ns, LLC

100 F. Supp. 3d 1013 (E.D. Cal. 2015) ..................................................................... 9, 13 

Case 5:17-cv-00062-LHK Document 215 Filed 12/07/18 Page 3 of 20
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

 3 CASE NO. 5:17-CV-00062-LHK 

WALMART’S POST-TRIAL BRIEF 

Reber v. AIMCO/Bethesda Holdings, Inc.

2008 WL 4384147 (C.D. Cal. Aug. 25, 2008) .................................................................. 9 

Ricaldai v. US Investigations Servs., LLC

878 F. Supp. 2d 1038 (C.D. Cal. 2012) ........................................................................... 9 

Serrano v. Swissport NA., Inc.

2013 WL 12145614 (C.D. Cal. June 3, 2013) ............................................................... 16 

Shook v. Indian River Transp. Co.

716 F. App’x 589 (9th Cir. 2018) ................................................................................... 15 

Spokeo, Inc. v. Robins

136 S. Ct. 1540 (2016) ................................................................................................... 12 

State Farm Mut. Auto. Ins. Co. v. Campbell

538 U.S. 408 (2003) ....................................................................................................... 16 

Stores, Inc., No. 12-cv-00703- GEB-CKD, 2014 U.S. Dist. LEXIS 2207, *19 

(E.D. Cal. Jan. 8, 2014) ................................................................................................... 9 

Suarez v. Bank of Am. Corp.

2018 WL 3659302 (N.D. Cal. Aug. 2, 2018) ................................................................. 13 

Tourgeman v. Nelson & Kennard

900 F.3d 1105 (9th Cir. 2018) ....................................................................................... 17 

Tran v. Companion Med Trans, LLC

2016 WL 89251469 (C.D. Cal. Jan. 25, 2016) .............................................................. 15 

United States v. Bajakajian

524 U.S. 321 (1998) ....................................................................................................... 16 

United States v. Citrin

972 F.2d 1044 (9th Cir. 1992) ....................................................................................... 16 

Villalpando v. Exel Direct Inc.

No. 12-CV-04137-JCS, 2015 WL 5179486 (N.D. Cal. Sept. 3, 2015)............................. 8 

Wentz v. Taco Bell Corp.

2012 WL 6021367 (E.D. Cal. Dec. 4, 2012) .................................................................. 15 

Willner v. Manpower Inc.

35 F. Supp. 3d 1116 (N.D. Cal. 2014) ............................................................................. 8 

Woods v. Vector Mktg. Corp.

2015 WL 2453202 (N.D. Cal. May 22, 2015) .................................................................. 9 

Case 5:17-cv-00062-LHK Document 215 Filed 12/07/18 Page 4 of 20
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

 4 CASE NO. 5:17-CV-00062-LHK 

WALMART’S POST-TRIAL BRIEF 

Wright v. Adventures Rolling Cross Country, Inc.

No. C-12-0982 EMC, 2013 WL 1758815 (N.D. Cal. Apr. 24, 2013) ............................... 8 

Yeti by Molly, Ltd. v. Deckers Outdoor Corp.

259 F.3d 1101 (9th Cir. 2001) ................................................................................. 17, 19 

California Cases 

Amalgamated Transit Union, Local 1756, AFL-CIO v. Sup. Ct.

46 Cal. 4th 993 (2009) ................................................................................................... 14 

Amaral v. Cintas Corp. No. 2

163 Cal. App. 4th 1157 (2008) .................................................................................. 9, 15 

Arias v. Superior Court

46 Cal. 4th 969 (2009) ................................................................................................... 14 

Brinker Rest. Corp. v. Superior Court

53 Cal.4th 1004 (2012) .................................................................................................... 6 

Canales v. Wells Fargo Bank

23 Cal. App. 5th 1262, 1269-72 (2018) ........................................................................... 9 

Home Depot U.S.A., Inc. v. Super. Ct.

191 Cal. App. 4th 210 (2010) ........................................................................................ 16 

Kim v. Reins Int’l Cal., Inc.

18 Cal. App. 5th 1052, 1058 (2017), review granted, 413 P.3d 1132 

(2018) ............................................................................................................................. 14 

Lopez v. Fraint & Assoc., LLC

15 Cal. App. 5th 773 (2017) .......................................................................................... 14 

Raines v. Coastal Pac. Food Distrib. Inc.

23 Cal. App. 5th 667 (2018) .......................................................................................... 14 

Thurman v. Bayshore Transit Mgmt., Inc.

203 Cal. App. 4th 1112 (2012) ...................................................................................... 15 

Williams v. Super. Ct.

3 Cal. 5th 531, 558 (2017) ........................................................................................ 14-15 

State Statutes 

Cal. Code Regs. Tit. 8, § 13520 ............................................................................................ 9 

Cal. Lab. Cod § 2699(f) ....................................................................................................... 16 

Cal. Lab. Code § 203 .......................................................................................................... 7-8 

Case 5:17-cv-00062-LHK Document 215 Filed 12/07/18 Page 5 of 20
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

 5 CASE NO. 5:17-CV-00062-LHK 

WALMART’S POST-TRIAL BRIEF 

Cal. Lab. Code § 226 ................................................................................................. 8, 13, 15 

Cal. Lab. Code § 226 ........................................................................................................... 14 

Cal. Lab. Code § 226(a) ..................................................................................... 6, 8-9, 11, 13 

Cal. Lab. Code § 226(a)(6) ............................................................................................. 10-11 

Cal. Lab. Code § 226(a)(9) ............................................................................................... 9-10

Cal. Lab. Code § 226(e) ...................................................................................................... 6-8 

Cal. Lab. Code § 226(e)(2)(B) ............................................................................................. 12 

Cal. Lab. Code § 226(e)(3) .................................................................................................... 8 

Cal. Lab. Code § 226.7 .................................................................................................... 6, 14 

Cal. Lab. Code § 2699(c) ..................................................................................................... 14 

Cal. Lab. Code § 2699(e)(2) ................................................................................................ 15

Cal. Lab. Code § 2699.3(a) .................................................................................................. 16 

Rules 

Fed. R. Civ. P. 26(a) ............................................................................................................ 17 

Fed. R. Civ. P. 26(a)(2)(B)(ii) ........................................................................................ 16, 19

Fed. R. Civ. P. 37(c)(1) .................................................................................................. 17, 19 

Fed. R. Evid. 702 ............................................................................................................ 6, 17 

Other Authorities 

Fabio Canales et al. v. Wells Fargo Bank, N.A.

Case No. B276127 (2018) .............................................................................................. 10 

Case 5:17-cv-00062-LHK Document 215 Filed 12/07/18 Page 6 of 20
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

 6 CASE NO. 5:17-CV-00062-LHK 

WALMART’S POST-TRIAL BRIEF 

INTRODUCTION 

Magadia cannot prevail at trial based on argument and allegation. He must 

provide competent evidence. And he hasn’t. In fact, he admits that there is no evidence 

that he “actually suffered an unlawful meal period exception.” TT. 582:6-10. That ends 

the meal period premium claim.

Magadia’s wage statement claims also fail because Magadia did not prove that 

Walmart knowingly and intentionally violated Labor Code section 226(e). To the 

contrary, it is undisputed that Walmart’s approach is consistent with the California 

Court of Appeal’s interpretation of Section 226(a). That’s hardly evidence of a “knowing 

and intentional” violation. Magadia also failed to prove that he was harmed as a result 

of receiving allegedly non-complaint wage statements. In fact, he said the exact 

opposite—that he was not injured. TT 99:14-19. Nor is he aware of any class member 

who suffered any injury. TT 98:15-99:1. These shortcomings sink the wage statement 

claims. And because Magadia has not carried his burden for any of his underlying 

claims, his derivative claims for PAGA penalties also fail. 

Regardless, Magadia has not provided competent evidence to support any 

monetary award. There is no evidence of the number of purported violations for any of 

the various time periods, no evidence to show which class members would be entitled to 

penalties, and no evidence to show what those penalties would be. This foundational 

evidence is not optional. See Fed. R. Evid. 702. And because Magadia has failed to 

provide it, the Court should not award any penalties or damages. 

THE MEAL PERIOD PREMIUM CLAIMS 

An employer only owes a meal period premium under Section 226.7 if it fails to 

provide an employee with an opportunity to take a proper meal period. See Brinker 

Rest. Corp. v. Superior Court, 53 Cal.4th 1004, 1034 (2012). Thus, as a threshold 

matter, Magadia was required to show that Walmart failed to provide him (and the 

class) with an opportunity to take a legally compliant meal period. He never made that 

showing. In fact, Plaintiffs’ counsel does not dispute that Magadia failed to provide any 

Case 5:17-cv-00062-LHK Document 215 Filed 12/07/18 Page 7 of 20
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

 7 CASE NO. 5:17-CV-00062-LHK 

WALMART’S POST-TRIAL BRIEF 

evidence that he (1) was unlawfully deprived of a meal break or (2) had any meal break 

exceptions coded as 1, 5, or 12 (the exception codes that are supposedly relevant for 

Plaintiffs’ claims). TT. 582:6-584:6. Without that evidence, the meal period premium 

claim is dead. See Lierboe v. State Farm Mut. Auto. Ins. Co., 350 F.3d 1018, 1022 (9th 

Cir. 2003) (vacating the district court’s certification of a stacking claim class because the 

named plaintiff had no stacking claim, and as such, “she cannot represent others who 

may have such a claim, and her bid to serve as a class representative must fail”). 

Magadia’s claim also fails because he did not prove that Walmart denied anyone 

the opportunity to take a meal break. In fact, Walmart undisputedly builds meal breaks 

into each associate’s schedule. TT. 142:7-23, Exs. 4, 5. The only other evidence—that 

Walmart asks associates to state whether they allege that a meal exception was 

voluntary or involuntary, and that Walmart codes the associate’s response in its 

Exception Management System—does not show that anyone was actually denied a meal 

break. TT. 305:15-308:12, 309:10-19, 528:9-11. In fact, Walmart does not rely on the 

meal exception codes to determine who is entitled to a meal period premium; Walmart 

pays premiums for every exception, regardless of the reason (if any) that the associate 

gives for the exception. TT. 311:13-24. 

Because Magadia has failed to establish that he (or anyone else) was actually 

denied a meal break, his meal period premium claim fails. As a result, his derivative 

claims for Section 203 waiting time penalties and PAGA penalties also fail. 

THE WAGE STATEMENT CLAIMS 

To prevail on a claim for penalties under Section 226(e), Magadia must prove 

that (1) Walmart failed to furnish each class member with compliant wage statements; 

(2) the failure to do so was “knowing and intentional”; and (3) class members suffered a 

resulting injury. Dkt. No. 184 at 6; Dkt. 185 at 15; Dkt. 197 at 11. 

Prior to trial, the Court held that (1) Walmart was required to issue a compliant 

wage statement at the time of termination (issuing a bi-weekly statement was not 

enough); and (2) Walmart’s description of its OVERTIME/INCT pay on its wage 

Case 5:17-cv-00062-LHK Document 215 Filed 12/07/18 Page 8 of 20
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

 8 CASE NO. 5:17-CV-00062-LHK 

WALMART’S POST-TRIAL BRIEF 

statements should include hours and rates from prior pay periods. Even if the Court 

sticks with those conclusions, Magadia was still required to prove that Walmart 

“knowing[ly] and intentional[ly]” violated the statute and that, as a result, Magadia and 

the class were injured. Cal. Lab. Code § 226.

A. “Knowing and intentional” means what it says. 

Magadia urges the Court to conclude that any violation of section 226(a) is 

knowing and intentional unless the error was something akin to a typo. This unnatural 

construction renders “knowing and intentional” meaningless and violates one of the 

first tenants of statutory construction: “a construction making some words surplusage 

is to be avoided.” See Willner v. Manpower Inc., 35 F. Supp. 3d 1116, 1130-31 (N.D. Cal. 

2014) (internal citations omitted). 

Plaintiffs’ neutering of the “knowing and intentional” element is also inconsistent 

with section 226(e)(3). That subsection authorizes courts assessing the “knowing and 

intentional” question to consider whether the employer “has adopted and is in 

compliance with a set of policies, procedures, and practices that fully comply with this 

section.” Inviting courts to assess employer’s policies, procedures, and practices to 

determine whether a violation is “knowing and intentional” confirms that “knowing and 

intentional” does not mean anything-other-than-a-typo. 

Indeed, because Section 203 and Section 226 both contain a scienter requirement 

(“willfulness” and “knowing and intentional,” respectively), courts often treat both 

standards the same and apply the same “good faith dispute” rule to both Section 226(e) 

and Section 203.1 This does not mean that every defense is a “good faith defense.” 

 

1 See, e.g., Apodaca v. Costco Wholesale Corp., No. CV12–5664 DSF (Ex), 2014 WL 

2533427, *3 (C.D. Cal. Jun. 5, 2014) (“[w]here an employer has a good faith belief that it 

is not in violation of Section 226, any violation is not knowing and intentional”); Wright 

v. Adventures Rolling Cross Country, Inc., No. C-12-0982 EMC, 2013 WL 1758815, at *9 

(N.D. Cal. Apr. 24, 2013) (“There is no dispute by the parties that there is a comparable 

good faith defense for § 226 which, similar to § 203, requires knowing and intentional 

conduct.”); Villalpando v. Exel Direct Inc., No. 12-CV-04137-JCS, 2015 WL 5179486, at 

*37 (N.D. Cal. Sept. 3, 2015) (“The good faith defense that applies to claims under 

section 203 also applies to Claims asserted under section 226.”); Guilfoyle v. Dollar Tree 

Case 5:17-cv-00062-LHK Document 215 Filed 12/07/18 Page 9 of 20
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

 9 CASE NO. 5:17-CV-00062-LHK 

WALMART’S POST-TRIAL BRIEF 

Defenses that “are unsupported by any evidence, are unreasonable, or are presented in 

bad faith, will preclude a finding of a ‘good faith dispute.’” CCR tit. 8, § 13520. 

The authorities Magadia relies upon stress that ignorance of the law is no 

defense. That is consistent with the good faith dispute doctrine because ignorance of 

the law is not a reasonable argument. And Walmart has never claimed ignorance of the 

law. Rather, Walmart has shown—through its practices, policies, and procedures—that 

it is aware of the law and that it deliberately and intentional tries to comply with the law. 

See, e.g., TT. 148:21-152:7, Exs. 300-306; see also sections B. and C, infra. 

Unlike every case that Plaintiff has cited to date, Walmart’s reading of the statute 

is objectively reasonable because, as this Court has acknowledged, the California Court 

of Appeal agrees with Walmart’s reading of the statute. See ECF No. 157 at 12 (citing 

Canales v. Wells Fargo Bank, 23 Cal. App. 5th 1262, 1269-72 (2018)). None of the 

authorities Magadia cites are similar.2 And this Court’s alternative interpretation does 

not retroactively make Walmart’s reading of the statute a “knowing and intentional” 

violation. See Cal. Code Regs. tit. 8, § 13520 (“The fact that a defense is ultimately 

unsuccessful will not preclude a finding that a good faith dispute did exist.”). Adopting 

such an approach would turn “knowing and intentional” on its head and improperly 

penalize Walmart for an interpretation of the law for which Walmart lacked fair notice. 

See F.C.C. v. Fox Television Stations, Inc., 567 U.S. 239, 253 (2012). 

B. Walmart acted in good faith to comply with section 226(a)(9). 

Section 226(a)(9) requires wage statements to include “all applicable hourly rates 

in effect during the pay period and the corresponding number of hours worked at each 

 

Stores, Inc., No. 12-cv-00703- GEB-CKD, 2014 U.S. Dist. LEXIS 2207, *19 (E.D. Cal. 

Jan. 8, 2014) (same) (quoting Ricaldai v. US Investigations Servs., LLC, 878 F. Supp. 2d 

1038, 1047 (C.D. Cal. 2012)); Woods v. Vector Mktg. Corp., 2015 WL 2453202, at *3 

(N.D. Cal. May 22, 2015) (Chen, J.) (collecting cases); Reber v. AIMCO/Bethesda 

Holdings, Inc., 2008 WL 4384147, at *9 (C.D. Cal. Aug. 25, 2008); Amaral v. Cintas 

Corp. No. 2, 163 Cal. App. 4th 1157, 1194-96, 1201-04 (2008). 

2 See, e.g., Novoa v. Charter Commc’ns, LLC, 100 F. Supp. 3d 1013, 1029 (E.D. Cal. 

2015) (employer’s position that Labor Code 226(a) did not require pay period start dates 

was unreasonable). 

Case 5:17-cv-00062-LHK Document 215 Filed 12/07/18 Page 10 of 20
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

 10 CASE NO. 5:17-CV-00062-LHK 

WALMART’S POST-TRIAL BRIEF 

hourly rate by the employee.” Cal. Lab. Code § 226(a)(9). In an effort to comply with this 

requirement, Walmart’s wage statements list all hourly rates in effect during the 

applicable pay period. TT. 162:21-164:19. Walmart did not believe that 

OVERTIME/INCT pay fell within the scope of this requirement because it is an 

incremental adjustment to overtime worked in prior pay periods “over the course of the 

quarter” for which the MyShare incentive award was paid. TT. 158:8-24. The California 

Court of Appeal reads the statute the same way. Fabio Canales et al. v. Wells Fargo 

Bank, N.A., Case No. B276127 (2018) (Judicially Noticed by this court at ECF No. 157, 

n. 1).

As further evidence of its good faith efforts, Walmart also informed all associates 

that “Earned MyShare Incentive Awards will be included in the regular rate of pay when 

calculating overtime for the incentive quarter.” See Ex. 125-7; TT. 159:4-160:9. As Mr. 

Stokes explained, Walmart flags this for associates in its written MyShare Quarterly 

Incentive Plan Program “to make sure the associates understand that the incentive 

award is going to not only show as an incentive award but it’s also going to reflect in their 

regular rate of pay, which also would reflect on any payments from -- for overtime.” TT. 

159:4-160: 23. 

Walmart also encourages associates to ask questions about the wage statements, 

provides multiple avenues for associates to get answers to those questions, and makes all 

wage statements and time punch details readily accessible. See TT. 154:15-156:8; Ex. 

300-7; TT. 155:21-156: 8; 160:24-161: 6. Despite this, there is no evidence that 

Magadia—or anyone else—ever asked a question about their wage statements or were 

confused by the information contained on their wage statements. See Plaintiff’s 

testimony at TT. 89:22-91:12, 98:18-20; see also Todd Stokes’ testimony at TT. 161:7-14. 

C. Walmart acted in good faith to comply with section 226(a)(6). 

Section 226(a)(6) requires employers to provide compliant wage statements either 

“semimonthly or at the time of each payment of wages.” Cal. Lab. Code § 226(a)(6). 

Case 5:17-cv-00062-LHK Document 215 Filed 12/07/18 Page 11 of 20
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

 11 CASE NO. 5:17-CV-00062-LHK 

WALMART’S POST-TRIAL BRIEF 

Walmart believed it complied with this requirement by providing biweekly wage 

statements that undisputedly contain all the details required by Section 226(a). ECF 

No. 176, at 8. As a courtesy, Walmart also provides terminated associates with a 

Statement of Final Pay when issuing a final pay check. But Stokes explained that 

Walmart did not consider the Statement of Final Pay a wages statement, which is why 

it did not include pay periods: “It’s not a wage statement. It is a document that 

confirms the amount of pay we are using the associate on their final day with the 

company. The wage statement is issued with the payroll cycle, whenever that happens 

after that termination.” TT. 169:18-25. Plaintiff has presented no evidence that 

Walmart’s belief that issuing wage statements semi-monthly did not comply with 

Section 226(a)(6). 

Moreover, although the Statements of Final Pay do not have “pay period” start 

and end dates (since they do not align with Walmart’s pay periods), associates receive, 

at the time of termination, all the information that is needed to determine the start and 

end dates applicable to their final paycheck. The Statement of Final Pay includes the 

date of the time period applicable to the final paycheck. And it is common knowledge 

that the start date of that time period is the pay period end date of the previous 

paycheck. TT. 100-11-102:8; Ex. 17, 309-1, 309-2. Plus, Walmart’s practice is to 

conduct an exit interview with all terminated associates (if available) to pay the 

associate through the date of termination, confirm the accuracy of the amount of the 

final paycheck (tell the associate he or she was paid through the date of termination), 

explain the details of the Statement of Final Pay, and instruct the associate on how to 

access their forthcoming final wage statements. TT. 165:16-167:5. Walmart then 

issues all department associates a final wage statement. TT. 169:18-25; 375:5-18. 

D. Magadia has not established injury. 

This case presents the extraordinary circumstance of a plaintiff who has 

admitted on the stand that neither he nor any other class member (as far as he is 

aware) suffered any harm. For example, he admitted that he (1) never discovered any 

Case 5:17-cv-00062-LHK Document 215 Filed 12/07/18 Page 12 of 20
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

 12 CASE NO. 5:17-CV-00062-LHK 

WALMART’S POST-TRIAL BRIEF 

time records or pay that were incorrect (TT. 89:19-21); (2) never had any questions 

about what his wage statement meant or said (TT. 90:1-3); (3) is not aware of any 

associate who was confused by any statement of pay (TT. 98:18-20); and (4) is not aware 

of any Walmart associate whose wages were calculated incorrectly (TT. 98:24-99:4.). 

And he denied any injury as a result of receiving allegedly non-complaint pay stubs: 

Q. How have you been harmed by receiving the pay stubs that you received? 

A. What do you mean “harmed”? 

Q. Have you been injured in any way because of the pay stubs you received? 

A. Oh. No. (TT. 99:14-19) 

. . .

Q. Were you injured in any way by receiving this statement of final pay 

without a start or end date? 

. . . 

A. The witness: No, sir. 3 (TT. 104:2-7) 

Plaintiff also wasn’t interested in any of the categories of information listed on 

his wage statements (except his total pay). Indeed, Plaintiff testified that he doesn’t 

have a general understanding of how overtime is calculated, and he never asked 

any questions about it. TT. 90:19-91:15. He also never asked about the MyShare 

incentive payment. TT. 91:18-20. In sum, Magadia’s evidence of harm was not 

weak, vague, or contradicted—it was non-existent. 

Magadia claims he doesn’t need to show any actual evidence of injury because 

Labor Code § 226(e)(2)(B) states that a plaintiff is “deemed to suffer injury” if the 

employer “fails to provide” the required wage-statement information. TT. 214:5:24, 

209:9-13, 510:25-511:5. But that amendment “merely clarified the law” to recognize 

 

3 Magadia’s admission that he has suffered no harm also deprives him of Article III 

standing. See Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1549 (2016) (a statutory violation 

alone is not enough to establish standing). Magadia was also required to show that the 

class suffered harm—something he also failed to do—because “no class may be certified 

that contains members lacking Article III standing.” Mazza v. Am. Honda Motor Co., 

666 F.3d 581, 594 (9th Cir. 2012). 

Case 5:17-cv-00062-LHK Document 215 Filed 12/07/18 Page 13 of 20
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

 13 CASE NO. 5:17-CV-00062-LHK 

WALMART’S POST-TRIAL BRIEF 

that the injury requirement was “minimal.” Novoa v. Charter Commc'ns, LLC, 100 

F. Supp. 3d 1013, 1030 & n. 10 (E.D. Cal. 2015). “Minimal” does not mean 

“nonexistent.” 

Two cases from this year alone establish as much. In Suarez v. Bank of Am. Corp., 

2018 WL 3659302, at *12 (N.D. Cal. Aug. 2, 2018), Judge James found that a Section 226 

plaintiff survived 12(b)(6) because she alleged that, as a result of the noncompliance, she 

“could not determine whether they were paid properly and/or did not receive pay for all 

hours worked, and thus suffered monetary damages due to Defendants’ policies.” Yet 

Magadia conceded that he suffered no loss of money. TT. 89:19-21, 96:18-23, 99:17-19. In 

Mie Yang v. Francesca’s Collections, Inc., 2018 WL 984637, at *7 (N.D. Cal. Feb. 20, 

2018), Judge Gilliam dismissed a Section 226 claim because “[t]he injury requirement 

cannot be satisfied simply because one of the nine itemized requirements in section 

226(a) is missing from a wage statement. [A]n employee seeking to recover for wage 

statement violations must demonstrate an injury arising from the missing 

information.... [T]he deprivation of that information, standing alone, is not a 

cognizable injury.” None of the cases even suggesting that injury is established by 

noncompliance alone involved a plaintiff who had the benefit of trial yet failed to produce 

evidence of harm. Trial—especially one where a plaintiff all but disclaims injury—

changes everything. 

When asked about harm on the stand, his counsel objected that this called for a 

“legal conclusion.” But as the Court explained, it was a factual question: “How else are 

you going to show whether he’s been injured or not if he doesn’t testify to it?” TT. 99:23-

24. Magadia failed to answer the call, as to him or any class member. Walmart is 

entitled to judgment on Magadia’s Section 226 claim.4

 

4 In the alternative, the Court should decertify the wage statement claims. As 

Magadia’s trial testimony shows, determining whether someone was actually harmed 

will inherently require individualized evidence as to the circumstances of every 

associate who received a wage statement in question. See, e.g., TT. 99:5-100:3 (because 

Magadia did not present any evidence of harm, it was reasonable to ask him “whether 

he’s been injured or not.”) 

Case 5:17-cv-00062-LHK Document 215 Filed 12/07/18 Page 14 of 20
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

 14 CASE NO. 5:17-CV-00062-LHK 

WALMART’S POST-TRIAL BRIEF 

THE PAGA CLAIMS ALSO FAIL 

Under PAGA, only “aggrieved employees” may recover civil penalties for Labor 

Code violations. Arias v. Superior Court, 46 Cal. 4th 969, 908 (2009); Cal. Lab. Code § 

2699(c). With that, the California Supreme Court recognized that “PAGA imposes a 

standing requirement; to bring an action, one must have suffered harm.” Williams v. 

Super. Ct., 3 Cal. 5th 531, 558 (2017); see also Amalgamated Transit Union, Local 1756, 

AFL-CIO v. Sup. Ct., 46 Cal. 4th 993, 1001 (2009) (PAGA “require[s] a plaintiff to have 

suffered injury resulting from...violations of the Labor Code”). 

Magadia’s PAGA claim seeks civil penalties for alleged violations of Labor Code 

Sections 226 and 226.7. But as explained above, Magadia has no viable Labor Code 

claim and, in particular, conceded that he has suffered no harm by any of the 

complained-about practices. Without those predicate injuries to redress, Magadia “no 

longer me[ets] the definition of ‘aggrieved employee’ under PAGA” and “d[oes] not have 

standing to maintain a PAGA action against [Walmart].” Kim v. Reins Int’l Cal., Inc., 

18 Cal. App. 5th 1052, 1058 (2017), review granted, 413 P.3d 1132 (2018). 

Neither Raines v. Coastal Pac. Food Distrib. Inc., 23 Cal. App. 5th 667 (2018) nor 

Lopez v. Fraint & Assoc., LLC, 15 Cal. App. 5th 773 (2017) hold otherwise. Neither 

decision “speak[s] to the issue of standing to bring a PAGA claim.” Raines, 23 Cal. App. 

5th at 681. And those cases certainly do not involve the remarkable situation where a 

plaintiff admits on the stand that he suffered no injury or harm as a result of the 

complained-about practice. Rather, where a plaintiff lacks viable Labor Code claims or 

injuries to redress, the plaintiff loses standing under PAGA. Kim, 18 Cal. App. 5th at 

1058; Harris v. Best Buy Stores, L.P., 2018 WL 984220, at *11 (N.D. Cal. Feb. 20, 2018) 

(“Considering the sweeping preclusive effect of PAGA...it would raise serious fairness 

Case 5:17-cv-00062-LHK Document 215 Filed 12/07/18 Page 15 of 20
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

 15 CASE NO. 5:17-CV-00062-LHK 

WALMART’S POST-TRIAL BRIEF 

and justiciability concerns to allow an employee to bind future individuals by asserting, 

on a representative basis, a harm that she did not personally suffer”).5

As noted, Plaintiff’s failure to prove his claims or establish any injury destroys his 

ability to assert that he is an “aggrieved employee” under PAGA. But even if Plaintiff 

had proven that he was an aggrieved employee (he has not), no PAGA penalties should be 

awarded because they would (1) constitute impermissible stacking with Labor Code 

penalties, (2) be “unjust, arbitrary and oppressive, or confiscatory,” and (3) violate the 

Due Process and Excessive Fines Clauses of the U.S. Constitution. 

First, as this Court held in Guifu Li v. A Perfect Day Franchise, Inc., 2012 WL 

2236752, at *17 (N.D. Cal. June 15, 2012) (Koh, J.), once a plaintiff “elect[s] to receive 

penalties for [a defendant’s] failure to provide accurate wage statements in violation of 

California Labor Code § 226 . . . granting PAGA penalties for failure to provide accurate 

wage statements would be duplicative recovery.” Id; see also Tran v. Companion Med 

Trans, LLC, 2016 WL 8925146, *8–9 (C.D. Cal. Jan. 25, 2016); Thurman v. Bayshore 

Transit Mgmt., Inc., 203 Cal. App. 4th 1112, 1131 (2012). 

Second, if the Court awards any PAGA penalties (it should not), the Court should 

reduce the amount because, “based on the facts and circumstances of [this] particular 

case, to do otherwise would result in an award that is unjust, arbitrary and oppressive, 

or confiscatory.” Cal. Labor Code § 2699(e)(2). In reducing a PAGA award, courts 

consider whether (1) the penalty is proportionate to actual damages, Amaral, 163 Cal. 

App. 4th at 1214; (2) non-PAGA penalties may be awarded, Aguirre v. Genesis, 2013 WL 

10936035, *3 (C.D. Cal. Dec. 30, 2013); and (3) a defendant acted willfully or in good 

faith, Cotter v. Lyft, Inc., 193 F. Supp. 3d 1030, 1037 (N.D. Cal. 2016). Here, a PAGA 

penalty in any amount would be wildly disproportionate to any actual harm. And any 

 

5 Fobroy v. Video Only, Inc., 2014 WL 6306708, at *5 (N.D. Cal. Nov. 14, 2014) 

(dismissing PAGA claims once predicate claims dismissed); accord Williams, 3 Cal. 5th 

at 558; Shook v. Indian River Transp. Co., 716 F. App’x 589, 590 (9th Cir. 2018); Wentz 

v. Taco Bell Corp., 2012 WL 6021367, at *5 (E.D. Cal. Dec. 4, 2012); Gofron v. Picsel 

Techs., Inc., 804 F. Supp. 2d 1030, 1043 (N.D. Cal. 2011). 

Case 5:17-cv-00062-LHK Document 215 Filed 12/07/18 Page 16 of 20
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

 16 CASE NO. 5:17-CV-00062-LHK 

WALMART’S POST-TRIAL BRIEF 

penalty would be particularly unjust because Walmart acted in good faith. See Cotter, 

193 F. Supp. 3d at 1037. Walmart is aware of no court that has ever awarded a PAGA 

penalty that comes anywhere close to what Magadia is seeking. This case should not 

break the records. See Serrano v. Swissport NA., Inc., 2013 WL 12145614, at *6 (C.D. 

Cal. June 3, 2013) ($5.6 million PAGA penalty award was “oppressive and confiscatory” 

where claims involved a “technical defect in . . . wage statements”). 

Third, California’s authority to impose “statutory penalties”—including penalties 

under PAGA—is limited “by the due process clauses of the federal and state 

Constitutions.” Home Depot U.S.A., Inc. v. Super. Ct., 191 Cal. App. 4th 210, 225 (2010) 

(analyzing PAGA section 2699(f)). Awarding PAGA penalties here would violate due 

process and the Excessive Fines Clause because the penalty does not have “a nexus to 

the specific harm suffered by” Magadia. E.g., State Farm Mut. Auto. Ins. Co. v. 

Campbell, 538 U.S. 408, 422 (2003); United States v. Citrin, 972 F.2d 1044, 1051 (9th 

Cir. 1992); United States v. Bajakajian, 524 U.S. 321, 337–39 (1998). 

In addition, no penalties should be awarded for the period before October 4, 2016 

TT. 61:1-5, the date of Plaintiff’s LWDA notice. This is so because PAGA provides that 

an allegedly aggrieved employee must provide the LWDA notice of “[Labor Code] 

provisions alleged to have been violated.” Cal. Lab. Code § 2699.3(a) (emphasis 

added). Therefore, by its own terms, PAGA limits the scope of the LWDA notice—and 

thus the allegedly aggrieved employee’s PAGA enforcement action—to past violations of 

which the LWDA has been provided notice. The DLSE has endorsed this retrospective

nature and scope of notices to the LWDA. See Request for Judicial Notice, Ex. A at 7; 

see also Ex. B at 24. 

MAGADIA’S EVIDENCE DOES NOT 

SUPPORT ANY MONETARY AWARD 

Magadia’s claim for penalties and damages rests solely on the Dr. Kriegler’s expert 

report. But Dr. Kriegler’s report fails to include the basic facts and data that support his 

opinion, as required by Fed. R. Civ. P. 26(a)(2)(B)(ii). In short, he failed to show his 

Case 5:17-cv-00062-LHK Document 215 Filed 12/07/18 Page 17 of 20
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

 17 CASE NO. 5:17-CV-00062-LHK 

WALMART’S POST-TRIAL BRIEF 

work. And when “a party fails to provide information . . . as required by Rule 26(a) . . . 

the party is not allowed to use that information or witness to supply evidence.” Fed. R. 

Civ. P. 37(c)(1); Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th 

Cir. 2001). Moreover, competent evidence was necessary for Magadia to prove his 

entitlement to damages. Tourgeman v. Nelson & Kennard, 900 F.3d 1105, 1109 (9th 

Cir. 2018) (It is “one of the most basic propositions of law ... that the plaintiff bears the 

burden of proving his case, including the amount of damages.”) (citations omitted); see 

also Lumens Co. v. GoEco LED LLC, No. SACV1401286CJCDFMX, 2018 WL 1942768, 

at *5–6 (C.D. Cal. Jan. 3, 2018) (concluding that “any attempt by a trier of fact to award 

damages on this record would be impermissibly speculative” and stating that “the 

opinions are conclusory” and do not provide “the facts, data, or principles applied to that 

data to support their damages calculations – all of which are required under Federal 

Rule of Evidence 702”); Gen. Elec. Co. v. Joiner, 522 U.S. 136, 145-46 (1997) 

(reaffirming district court discretion to exclude inadequately supported expert opinion). 

Here, Dr. Kriegler’s conclusions regarding potential damage and penalties are 

virtually useless because Kriegler (admittedly) does not show the number of violations 

for any of categories, does not identify the number of associates that fall into any of the 

various damages/penalty buckets, and does not provide any data that would allow the 

Court to determine the penalties or damages attributable to any class member. TT. 

483:17-485: 2; TT. 485:3-486:8. In fact, Dr. Kriegler said the only way to determine the 

number of violations is “by running the code.” TT. 491:13-21. But that information is 

nowhere to be found in his report: “[The] code generates the number of violations and 

the number of people that -- they’re not listed in my expert report, but they are part of 

my computational programs.” TT. 491:8-11. (emphasis added.) 

But Dr. Kriegler’s computational program is not part of the record. And even if it 

were, the code itself does not show either the number of violations or employees 

included in the damages calculations. It would need to be run to generate any of that 

information. When asked at trial if the code showed the number of violations, Dr. 

Case 5:17-cv-00062-LHK Document 215 Filed 12/07/18 Page 18 of 20
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

 18 CASE NO. 5:17-CV-00062-LHK 

WALMART’S POST-TRIAL BRIEF 

Kriegler explained: “If you look at the code you can’t see the dollar amounts, either. 

That’s not what code is used for.” TT. 491:13-21. But it is not the Court’s role to fill in 

the gaps of an expert report “by running the code.” This is why raw code also cannot be 

used as the basis for a damages award. 

Dr. Kriegler also admitted that he did not personally write the code, that he is 

not an expert in coding, and that he does not know exactly how the results of his coding 

were validated. TT. 486:9-487:19, 489:4-490:9, 491:4-12. At the time of his deposition, 

he was only aware of who might have done the auditing of the data by looking at time 

records. TT. 487:25-488:25. And at trial, he admitted that he recently learned of at 

least one error in his computations. TT. 451:17-452:4, 497:14-20. Because he does not 

show his work, it’s impossible to tell how many additional errors exist.

Looking closer at his testimony only reveals bigger holes. For example, when 

calculating waiting time penalties, Dr. Kriegler fails to identify any of the basic 

elements that would support his calculations. He does not identify which class 

members are supposedly entitled to the penalties, the amount of money they were 

supposedly owed, the date it was supposedly due, or any other foundational facts. This 

makes his numbers impossible to verify, meaningfully discuss, or rely upon. But the 

limited information he did provide shows that his calculations are also wrong. For 

example, he assumed that every associate worked exactly 8 hours per day, despite 

knowing that this assumption was wrong. TT. 494:12-495:5. 

Dr. Kriegler also claimed to have calculated pre-judgment interest, but it is 

unknown (even to Dr. Kriegler himself) what computation period was used. TT. 491:22- 

494:6. When asked if he was relying on the pay period (as stated in his expert report), 

he said: “I think we used the payroll run date.” TT. 493:2-9. But he was just guessing: 

“I believe it was the payroll run date. It was not the end of the pay period. It was 

sometime after that, either the payroll run rate or the—and I believed it was the payroll 

run date.” TT. 492:17-22. 

Case 5:17-cv-00062-LHK Document 215 Filed 12/07/18 Page 19 of 20
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

 19 CASE NO. 5:17-CV-00062-LHK 

WALMART’S POST-TRIAL BRIEF 

These same type of problems infect every aspect of Dr. Kriegler’s report. As a 

result, the Court cannot reasonably rely upon any of his conclusions. And because there 

is no other evidence that can support any penalties or damages, the Court should 

decline to award any monetary relief. See Fed. R. Civ. P. 26(a)(2)(B)(ii); Fed. R. Civ. P. 

37(c)(1); Yeti by Molly, 259 F.3d at 1106. 

CONCLUSION 

 For the foregoing reasons, the Court should enter judgment on the merits in 

favor of Walmart on all claims or award no damages. In the alternative, the Court 

should decertify the classes and dismiss the claims because Magadia lacks standing. 

DATED: December 7, 2018 DUANE MORRIS LLP

By: /s/ Aaron T. Winn 

Aaron T. Winn 

Natalie F. Hrubos 

Attorneys for Walmart 

DM1\9220186.1

Case 5:17-cv-00062-LHK Document 215 Filed 12/07/18 Page 20 of 20