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PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT; AND 

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 

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Larry W. Lee (State Bar No. 228175)

lwlee@diversitylaw.com

Kristen M. Agnew (State Bar No. 247656)

kagnew@diversitylaw.com

Nicholas Rosenthal (State Bar No. 268297)

nrosenthal@diversitylaw.com

DIVERSITY LAW GROUP, P.C.

515 S. Figueroa Street, Suite 1250

Los Angeles, CA 90071

(213) 488-6555

(213) 488-6554 facsimile

William L. Marder, Esq. (State Bar No. 170131)

bill@polarislawgroup.com

Polaris Law Group LLP

501 San Benito Street, Suite 200

Hollister, CA 95023

Tel: (831) 531-4214

Fax: (831) 634-0333

Attorneys for Plaintiff and the Class 

(Additional counsel on next page)

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

RODERICK MAGADIA, individually and 

on behalf of all those similarly situated,

Plaintiff,

vs.

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

PLAINTIFF’S NOTICE OF MOTION AND 

MOTION FOR PARTIAL SUMMARY 

JUDGMENT; MEMORANDUM OF POINTS 

AND AUTHORITIES IN SUPPORT 

THEREOF 

Date: March 1, 2018

Time: 1:30 P.M.

Courtroom: 8

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PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT; AND 

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 

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Dennis S. Hyun (State Bar No. 224240)

dhyun@hyunlegal.com

HYUN LEGAL, APC

515 S. Figueroa Street, Suite 1250

Los Angeles, California 90071

(213) 488-6555

(213) 488-6554 facsimile

Attorneys for Plaintiff and the Class 

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PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT; AND 

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 

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TO DEFENDANTS WAL-MART ASSOCIATES, INC. AND WAL-MART STORES, INC. 

AND ITS ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE that at 1:30 p.m. on March 1, 2018, before the Honorable 

Lucy H. Koh, District Judge in Courtroom 8 of the United States District Court for the Northern 

District of California, San Jose Division, located at 280 South 1st Street, San Jose, CA 95113, 

Plaintiff Roderick Magadia (“Plaintiff”) will and does move the Court for an Order granting 

partial summary judgment pursuant to Federal Rule of Civil Procedure 56, in favor of Plaintiff 

on his Fourth Cause of Action for Violation of the Private Attorney General’s Act (the 

“PAGA”), California Labor Code Section 2698, et seq., arising from Defendants’ violations of 

California Labor Code Section 226(a). 

Specifically, Plaintiff seeks partial summary judgment in his favor on his Fourth Cause of 

Action based on the following undisputed violations of Section 226(a):

ISSUE NO. 1: It is undisputed that Defendants violated Labor Code section 226(a)(9) by 

failing to list the applicable hourly rates and number of hours worked for overtime wage 

payments entitled “OVERTIME/INCT” on wage statements issued to Plaintiff and other 

California non-exempt employees between the time period of December 2, 2015, through the 

present. Defendants have an admitted policy and practice of listing this overtime wage as a lump 

sum without identifying the applicable hourly rates and number of hours worked. 

ISSUE NO. 2: There is also no dispute that Defendants’ “Statement of Final Pay” wage 

statements violated Labor Code section 226(a)(6). Again, Defendants have an admitted policy 

and practice of issuing off-cycle wage statements entitled “Statement of Final Pay” to departing 

employees including Plaintiff, between the time period of December 2, 2015, through the 

present, that failed to include pay period start and end dates. 

Based on those undisputed facts, there is no genuine dispute as to any material fact with 

regards to Plaintiff’s PAGA claim and summary judgment should be granted in Plaintiff’s favor. 

The motion will be, and is based upon the attached Memorandum of Points and 

Authorities, the accompanying Declarations of Larry W. Lee and Plaintiff, any exhibits attached 

thereto, such argument of counsel as may be presented at the hearing thereof, and all papers and 

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PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT; AND 

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 

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records on file herein. 

DATED: October 30, 2017 DIVERSITY LAW GROUP, P.C.

By: /s/ Larry W. Lee

Larry W. Lee

Attorneys for Plaintiff and the Class

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PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT; AND 

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 

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TABLE OF CONTENTS

I. INTRODUCTION ................................................................................................................. 1

II. STATEMENT OF FACTS AND APPLICABLE LEGAL PRINCIPLES................... 2

III. ARGUMENT...................................................................................................................... 4

A. The Standard for Summary Judgment............................................................................ 4

B. Defendants’ Wage Statements Violate California Labor Code Section 226(a)(9) By 

Failing to List The Applicable Hourly Rates and Number of Hours Worked for Its 

OVERTIME/INCT Wage Payments........................................................................................ 5

C. Defendants’ “Statements of Final Pay” Violate California Labor Code Section 

226(a)(6) By Failing to List Pay Period Start or End Dates................................................... 7

D. Plaintiff is Entitled to Seek PAGA Penalties for Defendants’ Violations of California 

Labor Code Sections 226(a)(6) and 226(a)(9).......................................................................... 8

E. Given That It Is Undisputed That Defendants’ Wage Statements Violated Labor 

Code Sections 226(a)(6) and 226(a)(9), Summary Judgment Should Be Granted in 

Plaintiff’s Favor on his PAGA Claim..................................................................................... 10

III. CONCLUSION ................................................................................................................ 11

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PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT; AND 

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 

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TABLE OF AUTHORITIES

Federal Cases

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986)...................................................... 5

Baumann v. Chase Inv. Servs. Corp., 747 F.3d 1117, 1123 (9th Cir. 2014) .................................. 9

Brewer v. Gen. Nutrition Corp., 2015 WL 5072039 (N.D. Cal. 2015) .......................................... 5

Castillo v. Nationstar Mortg. LLC, No. 15-CV-01743-BLF, 2016 WL 6873526, at *2 (N.D. Cal. 

Nov. 22, 2016) ............................................................................................................................. 4

Dias v. Nationwide Life Ins. Co., 700 F. Supp. 2d 1204, 1214 (E.D. Cal. 2010)........................... 5

Helton v. Factor 5, Inc., 26 F. Supp. 3d 913, 917 (N.D. Cal. 2014) .............................................. 4

Lopez v. Friant & Assocs., LLC, No. A148849, 2017 WL 4251126, at *9 (Cal. Ct. App. Sept. 26, 

2017) .......................................................................................................................................... 10

Lopez v. G.A.T. Airline Ground Support, Inc., 2010 WL 2839417 at *5 (S.D. Cal. 2010)........ 5, 7

Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) ..................... 5

McKenzie v. Federal Exp. Corp., 765 F.Supp.2d 1222 (C.D. Cal. 2011) ........................ 5, 7, 8, 10

Ontiveros v. Safelite Fulfillment, Inc., 231 F.Supp.3d 531, 540-41 (C.D. Cal. 2017).................... 6

So. Cal. Gas Co. v. City of Santa Ana, 336 F. 3d 885, 888 (9th Cir. 2003) ................................... 4

State Farm Fire & Cas. Co. v. Geary, 699 F. Supp. 756, 759 (N.D. Cal. 1987)............................ 4

Wert v. U.S. Bancorp, No. 13-CV-3130-BAS BLM, 2014 WL 7330891, at *3 (S.D. Cal. Dec. 18, 

2014) ............................................................................................................................................ 2

Willner v. Manpower Inc., 35 F.Supp.3d 1116, 1128-29 (N.D. Cal. 2014).............................. 7, 10

York v. Starbucks Corp., 2012 WL 10890355, at *4 (C.D. Cal. Nov. 1, 2012) ........................... 10

State Cases

Arias v. Superior Court, 46 Cal. 4th 969, 980 (2009) ................................................................ 8, 9

Marin v. Costco Wholesale Corp., 169 Cal. App. 4th 804, 807 (2008), as modified on denial of 

reh’g (Jan. 21, 2009).................................................................................................................... 2

Morgan v. United Retail, Inc., 186 Cal. App. 4th 1136, 1149 (2010)............................................ 8

Soto v. Motel 6 Operating, L.P., 4 Cal. App. 5th 385, 392-93 (2016)........................................ 5, 7

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PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT; AND 

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 

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Other Authorities

Assem. Com. On Labor and Employment, Analysis of Sen. Bill No. 1255 (2011-2012 Reg. Sess.

...................................................................................................................................................... 5

Cal. Division of Labor Standards Enforcement (“DLSE”) Enforcement Policies and 

Interpretation Manual at §§ 49.1, 49.2.4 (June 2002).................................................................. 2

State Statutes

California Labor Code §§ 201-202................................................................................................. 3

California Labor Code § 226 .......................................................................................................... 6

California Labor Code § 226(a)............................................................................................. passim

California Labor Code § 226(a)(6) ........................................................................................ passim

California Labor Code § 226(a)(9) ........................................................................................ passim

California Labor Code § 226(e).................................................................................................... 11

California Labor Code § 510(a)...................................................................................................... 2

California Labor Code § 2698 ........................................................................................................ 1

California Labor Code § 2699.3(a)(1) ............................................................................................ 9

California Labor Code § 2699.3(a)(2)(A), (3)................................................................................ 9

California Labor Code § 2699.3(a)(2)(A)....................................................................................... 9

California Labor Code § 2699.5 ..................................................................................................... 9

Federal Rules

Federal Rule of Civil Procedure §56(a).......................................................................................... 4

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PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT; AND 

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 

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MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION

It is undisputed that Defendants Wal-Mart Associates, Inc. and Wal-Mart Stores, Inc. 

(collectively, “Defendants”) are in violation of California Labor Code Section 226(a) by failing 

to include information on its wage statements that the California Legislature has deemed vital in 

order for employees to verify the accuracy of their wages. Plaintiff Roderick Magadia 

(“Plaintiff”) now seeks a ruling from the Court granting partial summary judgment on Plaintiff’s 

Fourth Cause of Action for Violation of the Private Attorney General’s Act (the “PAGA”), 

California Labor Code Section 2698, et seq., arising from Defendants’ undisputed violations of 

California Labor Code Sections 226(a)(6) and 226(a)(9).

First, there is no dispute that Defendants violated Labor Code Section 226(a)(9). 

California law requires employers to list all applicable hourly rates and hours worked for wages 

that are paid on an hourly basis, including overtime wages. Notwithstanding that requirement, 

Defendants admitted that its wage statements do not specify applicable hourly rates and number 

of hours worked for overtime wages paid under the name “OVERTIME/INCT” on wage 

statements issued to Plaintiff and other California non-exempt employees. In fact, there is 

essentially no way for employees to verify the accuracy of such overtime wage payments as 

Defendants testified that no formula or calculation is listed on the wage statements. 

Second, it is undisputed that Defendants’ off-cycle wage statements given to its departing 

employees and identified as “Statement of Final Pay” violate Labor Code Section 226(a)(6), 

which mandates that employers include pay period start and end dates on all wage statements.

Nevertheless, Defendants testified that its policy and practice throughout the relevant time period

is to never include pay period start or end dates on these wage statements. Defendants’ policy 

and practice directly undercuts the public policy behind Section 226(a) of providing adequate 

information to employees.

Given that there is no genuine dispute as to any material fact regarding Plaintiff’s PAGA 

claim, Plaintiff should prevail as a matter of law and this Court should grant summary judgment 

in Plaintiff’s favor on his PAGA claim arising from Defendants’ violations of Labor Code 

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PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT; AND 

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 

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Sections 226(a)(6) and 226(a)(9). 

II. STATEMENT OF FACTS AND APPLICABLE LEGAL PRINCIPLES

Pursuant to California law, employers must include all non-discretionary items of pay, 

including incentive pay and/or bonuses, into the regular rate of compensation or pay, including 

for purposes of overtime wages. Cal. Division of Labor Standards Enforcement (“DLSE”) 

Enforcement Policies and Interpretation Manual at §§ 49.1, 49.2.4 (June 2002)1; Marin v. Costco 

Wholesale Corp., 169 Cal. App. 4th 804, 807 (2008), as modified on denial of reh’g (Jan. 21, 

2009) (“Where a bonus payment is considered a part of the regular rate at which an employee is 

employed, it must be included in computing his regular hourly rate of pay and overtime 

compensation.”); Wert v. U.S. Bancorp, No. 13-CV-3130-BAS BLM, 2014 WL 7330891, at *3 

(S.D. Cal. Dec. 18, 2014) (“‘Regular rate of pay’ [under California law] takes into account 

compensation beyond the normal hourly rate, including commissions and non-discretionary 

bonuses.”) (Citing Cal. Labor Code § 510(a)).

For example, if an employee’s base rate of compensation is $10 per hour and that 

employee does not earn any non-discretionary pay in the same pay period, the regular rate of 

compensation would also be $10 per hour, and the corresponding overtime rate would be $15 per 

hour (1.5 times the regular rate of $10). However, if the employee does in fact earn additional 

incentive compensation during the same time period he/she works the overtime hours, the 

respective employee’s regular rate of pay should be increased by taking into account the 

incentive pay. In the $10/hr example, the regular rate would increase to an amount above the 

$10 given the additional incentive, and thus, the corresponding overtime rate of 1.5 times the 

regular rate would not be $15/hr, but a rate that is slightly higher than $15/hr given the additional 

incentive built into the regular rate. 

From at least December 2, 2015 through the present (the “Relevant Time Period”), 

Defendants paid Plaintiff and its non-exempt California employees an item of pay titled 

“OVERTIME/INCT,” which is the additional overtime wage being paid to an employee that 

1 The relevant portions of the DLSE Manual cited herein are attached to Plaintiff’s Request for 

Judicial Notice (“RJN”) in support of his Motion for Class Certification as Exhibit “A” (Dkt. No. 

60-16). 

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PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT; AND 

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earns non-discretionary bonuses and works and earns overtime in the same pay period. 

Deposition of Todd Stokes (“Stokes Depo.”) 66:20-68:4, Ex. 3.2 This OVERTIME/INCT item 

is calculated by multiplying a pre-determined hourly rate by the number of applicable overtime 

hours worked. Stokes Depo. 67:16-68:4, 69:14-70:4, 71:10-18. Although it is an overtime wage 

payment, the OVERTIME/INCT item listed on wage statements is identified as a lump sum. Id. 

Defendants admit that they do not list the applicable hourly rates and number of hours worked on 

their wage statements for the OVERTIME/INCT wage payment. Stokes Depo 76:9-77:21, Ex. 3. 

Additionally, no formula or calculation is given to employees on their wage statements to verify 

the accuracy of the OVERTIME/INCT payment. Stokes Depo. 69:6-13; 76:23-77:21, Ex. 3. 

Defendants also had a policy and practice of issuing off-cycle wage statements titled 

“Statements of Final Pay” to its departing employees throughout the Relevant Time Period. 

Stokes Depo. 82:4-25. To put this into context, California law requires a departing employees’ 

final pay to be paid either immediately upon termination or within 72 hours of resignation if the 

employee did not provide at least 72-hours’ notice. See Cal. Labor Code §§ 201-202. In that 

regard, and pursuant to Labor Code § 226(a), an itemized wage statement must also accompany 

the payment of such final wages. See Cal. Labor Code § 226(a). Because of such timing 

requirements for the payment of final wages, employers cannot wait until the normal weekly or 

bi-weekly pay cycle runs to issue the final pay and wage statement. Rather, employers will have 

to issue a wage payment and accompanying wage statement outside of the normal pay cycle 

runs, which is normally referred to as an “off-cycle” payroll and wage statement.

Defendants were no different. In connection with the issuance of final wages, 

Defendants also issued such pay and respective wage statement as an “off-cycle” process. 

Stokes Depo. 83:12-84:2. As to the off-cycle wage statement issued along with the final pay, 

such wage statements were entitled “Statement of Final Pay,” which lists all the wages that were 

being paid to the departing employee at the time of separation of employment, and given to the 

respective employee along with a separation notice. Stokes Depo. 82:22-25; 86:10-24. 

 

2 Relevant portions of the deposition of Todd Stokes are attached to the Declaration of Larry W. 

Lee In Support of Plaintiff’s Motion for Partial Summary Judgment as Exhibit C.

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PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT; AND 

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 

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Defendants, however, admitted that its policy and practice is to never identify the pay period 

start and end dates on any of the “Statement of Final Pay” wage statements. Stokes Depo. 

84:14-25, 89:14-90:4. Thus, Plaintiff and other departing employees who received “Statement 

of Final Pay” wage statements, received wage statements that did not contain the applicable pay 

period start and end dates. Id.; Stokes Depo. Ex. 8.

III. ARGUMENT

A. The Standard for Summary Judgment

Federal Rule of Civil Procedure §56(a) provides that a party may move for summary 

judgment on a claim or a part of each claim, and that the court shall grant summary judgment if 

the movant shows that there is no genuine dispute as to any material fact and the movant is 

entitled to judgment as a matter of law. So. Cal. Gas Co. v. City of Santa Ana, 336 F. 3d 885, 

888 (9th Cir. 2003). 

“Partial summary judgment that falls short of a final determination, even of a single 

claim, is authorized by Rule 56 in order to limit the issues to be tried.” Castillo v. Nationstar 

Mortg. LLC, No. 15-CV-01743-BLF, 2016 WL 6873526, at *2 (N.D. Cal. Nov. 22, 2016) (Judge 

Beth Labson Freeman granted the plaintiffs’ motion for partial summary judgment) (quoting 

State Farm Fire & Cas. Co. v. Geary, 699 F. Supp. 756, 759 (N.D. Cal. 1987)).

Once the moving party has met its burden, the burden then shifts to the nonmoving party 

to designate specific facts showing a genuine issue for trial. Helton v. Factor 5, Inc., 26 F. Supp. 

3d 913, 917 (N.D. Cal. 2014). As further explained by the Northern District in Helton, 26 F. 

Sup. 3d at 917, an opposing party must produce facts sufficient to oppose:

To carry its burden, the nonmoving party must show more than the mere existence 

of a scintilla of evidence, [citation], and “do more than simply show that there is 

some metaphysical doubt as to the material facts.” [Citation]. In fact, the 

nonmoving party must come forward with affirmative evidence from which a jury 

could reasonably render a verdict in the nonmoving party’s favor. [Citation]. In 

determining whether a jury could reasonably render a verdict in the nonmoving 

party’s favor, the court must view the evidence in the light most favorable to the 

nonmoving party and draw all justifiable inferences in its favor. [Citation]. 

Nevertheless, inferences are not drawn out of the air, and it is the opposing 

party’s obligation to produce a factual predicate from which the inference 

may be drawn.

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Id. (Citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986), Matsushita Elec. 

Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986), and Dias v. Nationwide Life 

Ins. Co., 700 F. Supp. 2d 1204, 1214 (E.D. Cal. 2010)

B. Defendants’ Wage Statements Violate California Labor Code Section 

226(a)(9) By Failing to List The Applicable Hourly Rates and Number of 

Hours Worked for Its OVERTIME/INCT Wage Payments

An employer is required to list all enumerated information contained in Labor Code 

Section 226(a) for any item of an employee’s current compensation. Soto v. Motel 6 Operating, 

L.P., 4 Cal. App. 5th 385, 392-93 (2016). Among the items that an employer must list on its 

wage statements includes “all applicable hourly rates in effect during the pay period and the 

corresponding number of hours worked at each hourly rate by the employee....” Cal. Lab. Code 

§ 226(a)(9). The public policy behind Section 226(a) is “‘to insure that employees are 

adequately informed of compensation received and are not shortchanged by their employers.’” 

Soto, supra at 392 (quoting Assem. Com. On Labor and Employment, Analysis of Sen. Bill No. 

1255 (2011-2012 Reg. Sess.).

Courts have consistently found employers to be in violation of Section 226(a) where their 

wage statements failed to provide the accurate overtime rate and the number of overtime hours 

worked during the pay period. See McKenzie v. Federal Exp. Corp., 765 F.Supp.2d 1222 (C.D. 

Cal. 2011) (finding that the wage statements do comply with § 226(a)(9) for failure to list the 

correct overtime rate and number of hours worked overtime); see also Brewer v. Gen. Nutrition 

Corp., 2015 WL 5072039 (N.D. Cal. 2015) (holding that the employer’s omission of overtime

rates and listing multiple inconsistent rates on the wage statements violated § 226(a)(9)); see also

Lopez v. G.A.T. Airline Ground Support, Inc., 2010 WL 2839417 at *5 (S.D. Cal. 2010)

(summary judgment granted to plaintiff where evidence showed that wage statements did not 

contain hourly rates and hours worked at the respective rates). 

In an identical case to this one involving the payment of overtime wages predicated upon 

the earning of non-discretionary bonuses, the District Court granted summary judgment in the 

employees’ favor where the employer failed to identify the applicable overtime rate and hours 

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PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT; AND 

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 

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worked, as the lack of such information made it impossible to enable employees to calculate 

whether the overtime wages were paid correctly. Ontiveros v. Safelite Fulfillment, Inc., 231 

F.Supp.3d 531, 540-41 (C.D. Cal. 2017). In Ontiveros, the employer paid plaintiff and its hourly 

employees a non-discretionary bonus. Id. Whenever the bonus was earned and an employee 

worked overtime in the same pay period, the overtime wages predicated on such nondiscretionary bonuses would be paid and identified as a single lump sum on the wage statement. 

Id. However, just like Defendants here, the employer failed to identify the applicable overtime

rate and number of hours worked. Id. As such, the District Court held that such wage statements 

failed to provide “any information from which [p]laintiff could calculate the additional overtime 

owed,” and found that such wage statements violated Labor Code § 226. Id. at 540-41. 

Here, Defendants’ OVERTIME/INCT wage payment is completely identical to that in 

Ontiveros—whenever an employee earned overtime wages and non-discretionary bonuses in the 

same pay period, the overtime wages predicated on the non-discretionary bonus would be listed

as a lump sum on the wage statements. See Stokes Depo. 66:20-68:4. Plaintiff similarly 

received wage statements wherein he was paid OVERTIME/INCT wages identified in the same 

manner. Declaration of Roderick Magadia (“Magadia Decl.”) ¶ 4, Exh. B. And just as in 

Ontiveros, Defendants further admit that its policy and practice is to not identify the applicable 

hourly rates and hours worked overtime on the wage statements for such OVERTIME/INCT 

wage payments. See Stokes Depo 76:9-77:21, Ex. 3. Defendants also admitted that the formula 

to calculate the OVERTIME/INCT wage payment has “never been on the wage statement.” See

Stokes Depo. 69:6-13. Based on such admitted policy and practice, there is essentially no way 

for an employee to verify from the wage statement whether the overtime wages were paid 

accurately in that pay period, let alone verify the accuracy of the overtime incentive adjustment. 

Again, just as in Ontiveros, the Defendants’ OVERTIME/INCT wage payment is composed of 

an hourly rate multiplied by the applicable hours. Ontiveros, 231 F.Supp.3d 531 at 540-41. As 

Labor Code § 226(a) mandates that all applicable rate and hours be identified on the wage 

statement, Defendants’ admitted failure to do so mandates the granting of this Motion.

Indeed, Defendants further testified that in the event that an employee wishes to verify 

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PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT; AND 

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 

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the accuracy of the overtime incentive amount, that employee must take the issue “to their HR 

representative who would work with the individuals in [Defendants’] payroll department to audit 

and verify that the funds were correct.” Stokes Depo. 76:23-77:9. Defendants’ policy and 

practice of omitting such vital information directly undercuts the statutory purpose behind 

Section 226(a), which is to furnish adequate information on actual wage statements to “ensure 

the employee is fully informed regarding the calculation of those wages.” Soto, supra at 392. 

Thus, based on Defendants’ admissions that it failed to list applicable hourly rates and 

number of hours worked overtime for its OVERTIME/INCT wage payment, it is undisputed that 

Defendants’ wage statements violate Section 226(a)(9).

C. Defendants’ “Statements of Final Pay” Violate California Labor Code 

Section 226(a)(6) By Failing to List Pay Period Start or End Dates

Labor Code Section 226(a)(6) mandates that employers list on wage statements “the 

inclusive dates of the period for which the employee is paid... .” Courts routinely find a 

violation of Section 226(a)(6) where an employer’s wage statements failed to include pay period 

start or end dates. See McKenzie v. Federal Express Corp., 765 F.Supp.2d 1222, 1230-31 (C.D. 

Cal. 2011) (summary judgment granted in plaintiff’s favor for defendant-employer’s failure to 

include pay period start dates on wage statements); see also Willner v. Manpower Inc., 35 

F.Supp.3d 1116, 1128-29 (N.D. Cal. 2014) (finding a violation of § 226(a)(6) where the 

employer’s wage statements failed to list the pay period start date, despite listing the end date); 

Lopez v. G.A.T. Airline Ground Support, Inc., 2010 WL 2839417, at *6 (S.D. Cal. 2010)

(summary judgment granted for plaintiff for defendant’s violation of § 226(a)(6)). 

In McKenzie v. Federal Express Corp., the plaintiff sought summary judgment against 

her employer for violation of Section 226(a)(6) for failure to include the pay period start or end 

dates on her wage statements. 765 F.Supp.2d at 1230-31. Despite the employer’s argument that 

the plaintiff “knew what days she was being paid for...,” the Court granted summary judgment 

in favor of the plaintiff as it was undisputed that the employer’s wage statements lacked the pay 

period dates. Id. at 1230. The Court noted that the fact that plaintiff had to refer to outside 

sources to verify the dates included in her wage statements goes directly against the statutory 

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PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT; AND 

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 

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purpose of Section 226(a) of requiring wage statements to “accurately report[] most of the 

information necessary for an employee to verify if he or she is being properly paid in accordance 

with the law... .” Id. (citing Morgan v. United Retail, Inc., 186 Cal. App. 4th 1136, 1149 

(2010)). 

Here, Defendants readily admit that their Statements of Final Pay have never included the 

pay period start and end dates during the Relevant Time Period. See Stokes Depo. 88:21-89:1; 

89:22-90:4; 90:23-91:1. Rather, the only date present on these wage statements is the 

termination date. Stokes Depo. 88:21-89:1. Again, Plaintiff also received a Statement of Final 

Pay in the same manner. Magadia Decl. ¶ 5, Exh. C. Defendants’ policy and practice of 

omitting pay period dates on its Statements of Final Pay means that an employee cannot verify 

the dates included in his or her last paycheck merely by looking at the actual statement—the 

employee would certainly need to reference outside documents as in McKenzie. 

Thus, it is undisputed that Defendants’ Statements of Final Pay violate Section 226(a)(6). 

D. Plaintiff is Entitled to Seek PAGA Penalties for Defendants’ Violations of 

California Labor Code Sections 226(a)(6) and 226(a)(9)

Prior to the enactment of the PAGA, many of the penalties provided against employers 

for violations of certain Labor Code provisions were solely within the province of the California 

Division of Labor Standards Enforcement (the “DLSE”) to seek, enforce and assess. Arias v. 

Superior Court, 46 Cal. 4th 969, 980 (2009). However, due to the lack of financing to 

California’s agencies and the substantial number of Labor Code violations by California 

employers, the California Legislature found that it was in the public interest to allow aggrieved 

employees to act as private attorneys general, and to enforce and recover penalties on behalf of 

other similarly situated employees for Labor Code violations committed by their employers. Id. 

As such, the PAGA was enacted to allow such enforcement and recovery by private individuals 

who have been aggrieved by their employers. In particular, 75 percent of any penalties 

recovered under PAGA by aggrieved employees is to be paid to the California Labor Workforce 

Development Agency (the “LWDA”) and the remaining 25 percent is to be distributed amongst 

the aggrieved employees. Id. at 980-81. 

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PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT; AND 

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 

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Labor Code Section 2699.5 provides that aggrieved employees may seek and enforce 

PAGA penalties for an employer’s violation of Labor Code Section 226(a). See Labor Code § 

2699.5. In order to enforce and seek penalties under the PAGA, an aggrieved employee must 

first provide written notice to the LWDA and the employer of the particular Labor Code 

violation the aggrieved employee alleges the employer has violated. See Cal. Labor Code § 

2699.3(a)(1). Once the LWDA notifies the aggrieved employee that it does not intend to 

investigate the alleged violations, or does not act within the exhaustion period, the aggrieved 

employee is then allowed to proceed in a civil action against the employer on the alleged 

violations on behalf of all other similarly situated employees. See Cal. Labor Code § 

2699.3(a)(2)(A), (3). 

In 2009, the California Supreme Court was presented with the issue of whether an 

aggrieved employee that brings a PAGA claim on behalf of himself and others similarly situated 

needs to seek the PAGA claim as a class action and meet class certification requirements. Arias,

supra at 976. After substantial review of the legislative history of PAGA, the Court held that an 

aggrieved employee’s representative action brought on behalf of other similarly situated 

employees for PAGA violations do not need to meet the requirements for class certification. Id. 

at 975; 980-88. Because a PAGA action functions as a substitute for an action brought by the 

government itself, a judgment in the PAGA action binds all those, including nonparty aggrieved 

employees, who would be bound by a judgment in an action brought by the government. Id. at 

986. The Ninth Circuit has also adopted the holding of Arias. Baumann v. Chase Inv. Servs. 

Corp., 747 F.3d 1117, 1123 (9th Cir. 2014) (“PAGA plaintiffs are private attorneys general who, 

stepping into the shoes of the LWDA, bring claims on behalf of the state agency.”).

Here, Plaintiff has exhausted his administrative remedies by providing notice to the 

LWDA as of October 4, 2016. Magadia Decl. ¶ 2, Exh. A; Declaration of Larry W. Lee (“Lee 

Decl.”) ¶ 2, Exhs. A & B. As of today’s date, the LWDA has not informed Plaintiff or his 

Counsel whether it intends to investigate the violations. Magadia Decl. ¶ 3; Lee Decl. ¶ 3. As 

such, Plaintiff has the right to seek penalties on behalf of all aggrieved employees pursuant to 

Labor Code Section 2699.3(a)(2)(A).

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 

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E. Given That It Is Undisputed That Defendants’ Wage Statements Violated 

Labor Code Sections 226(a)(6) and 226(a)(9), Summary Judgment Should Be 

Granted in Plaintiff’s Favor on his PAGA Claim

As explained above, the PAGA provides that an aggrieved employee may bring a 

representative action for civil penalties on behalf of others similarly situated against an employer 

for violations of Labor Code provisions. Plaintiff’s PAGA claim asserts that Defendants have

violated Labor Code Sections 226(a), among other Labor Code provisions, and thus, Plaintiff’s 

and other aggrieved employees are entitled to civil penalties. 

In light of Defendants’ testimony regarding its OVERTIME/INCT payments and 

Statements of Final Pay, it is undisputed that Defendants are in violation of Labor Code Sections

226(a)(6) and 226(a)(9). Although required for overtime wages, Defendants admitted to its 

policy and practice of not specifying applicable hourly rates and number of hours worked 

overtime for its OVERTIME/INCT adjustment—an overtime payment line-item—on its wage 

statements in violation of Section 226(a)(9). Furthermore, Defendants testified that its off-cycle 

wage statements to terminated employees—Statements of Final Pay—failed to list pay period 

start or end dates in violation of Section 226(a)(6). 

Further, Plaintiff need not establish injury to prevail on summary judgment on his PAGA 

claim. See, e.g., Willner v. Manpower, Inc., 35 F. Supp. 3d 1116, 1135 (N.D. Cal. March 31, 

2014) (“Willner is not required to establish injury in order to obtain judgment on this claim. All 

she needs to establish is a violation of section 226(a)”); McKenzie v. Fed. Exp. Corp., 765 F. 

Supp. 2d 1222, 1232 (C.D. Cal. 2011) (same; holding that “for the purposes of recovering PAGA 

penalties, one need only prove a violation of Section 226(a), and need not establish a Section 

226(e) injury”); York v. Starbucks Corp., 2012 WL 10890355, at *4 (C.D. Cal. Nov. 1, 2012)

(reiterating that the plain text of the PAGA makes clear that the presence or absence of injury is 

irrelevant to the standing inquiry under PAGA). 

Indeed, the California Court of Appeal recently confirmed that injury is not required for a 

plaintiff to prevail on a PAGA claim. Lopez v. Friant & Assocs., LLC, No. A148849, 2017 WL 

4251126, at *9 (Cal. Ct. App. Sept. 26, 2017) (“Consistent with the PAGA statutory framework 

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 

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and the plain language and legislative history of section 226(e), we hold a plaintiff seeking civil 

penalties under PAGA for a violation of section 226(a) does not have to satisfy the ‘injury’ and 

‘knowing and intentional’ requirements of section 226(e)(1).”).

As there is no genuine dispute as to any material fact regarding Plaintiff’s PAGA claim

arising from Defendants’ violations of Section 226(a), liability is established in Plaintiff’s favor 

as a matter of law and summary judgment should be granted in Plaintiff’s favor. 

III. CONCLUSION

For the foregoing reasons, Plaintiff respectfully requests that this Court grant his Motion 

for Partial Summary Judgment as to Plaintiff’s PAGA claim predicated on Defendants’ 

violations of Labor Code Section 226(a). 

DATED: October 30, 2017 DIVERSITY LAW GROUP, P.C.

By: /s/ Larry W. Lee

Larry W. Lee

Attorneys for Plaintiff and the Class

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