Myrna Karina Acosta Angulo v. Thunderbird Restaurants LLC, et al.

Opinion

1 WO 2 3 4 5

9 Myrna Karina Acosta Angulo, No. CV-24-01897-PHX-JJT

10 Plaintiff, ORDER

11 v.

12 Thunderbird Restaurants LLC, et al.,

13 Defendants. 14 15 Before the Court is Plaintiff Myrna Karina Acosta Angulo’s Motion for Partial 16 Summary Judgment (Doc. 31, Mot.) supported by her Statement of Facts (Doc. 32, SOF), 17 to which Defendants responded (Doc. 33, Resp.) with their own Controverting Statement 18 of Facts (Doc. 34, CSOF), and Plaintiff replied (Doc. 35). 20 The following facts are undisputed. A woman named Sofia Rodriquez Cota worked 21 as a cook at a Scottsdale bar called T-Bird Tavern from January 18, 2024 to March 16, 22 2024. (SOF ¶¶ 20–21; CSOF ¶¶ 20–21.) T-Bird Tavern is owned and managed by 23 Thunderbird Restaurants, LLC that is in turn owned and managed by TB Ventures, LLC 24 and Ace High Partners, LLC. (SOF ¶ 2; CSOF ¶ 2.) TB Ventures is owned and managed 25 by Mr. Troy Brandt, while Ace High Partners is owned and managed by Mr. Kelley Albert 26 Cordova. (SOF ¶¶ 3–4; SCOF ¶¶ 3–4.) Sofia Rodriguez’s last day of work was March 16, 27 2024, and in the week leading up to her last day, she worked 32.58 hours. (SOF ¶ 24; CSOF 28 ¶ 24.) 1 Plaintiff, who states that she was the woman named Sofia Rodriguez Cota, now sues 2 Defendants for failure to pay her for her last week of work. She asserts claims under the 3 Fair Labor Standards Act, 29 U.S.C. § 206 (“FLSA”), the Arizona Minimum Wage Act, 4 A.R.S. § 23-363 (“AMWA”), and the Arizona Wage Act, A.R.S. § 23-350 (“AWA”). (Doc. 5 1.) Plaintiff now moves for summary judgement. 7 Under Federal Rule of Civil Procedure 56(a), summary judgment is appropriate 8 when the movant shows that there is no genuine dispute as to any material fact and the 9 movant is entitled to prevail as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. 10 Catrett, 477 U.S. 317, 322–23 (1986). “A fact is ‘material’ only if it might affect the 11 outcome of the case, and a dispute is ‘genuine’ only if a reasonable trier of fact could 12 resolve the issue in the non-movant’s favor.” Fresno Motors, LLC v. Mercedes Benz USA, 13 LLC, 771 F.3d 1119, 1125 (9th Cir. 2014) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 14 242, 248 (1986)). The court must view the evidence in the light most favorable to the 15 nonmoving party and draw all reasonable inferences in the nonmoving party’s favor. 16 Torres v. City of Madera, 648 F.3d 1119, 1123 (9th Cir. 2011). “The Court need not ‘comb 17 the record’ looking for other evidence; it is only required to consider evidence set forth in 18 the moving and opposing papers and the portions of the record cited therein.” New Leaf 19 Publ’g, Inc. v. Top Innovations LLC, No. 2:24-cv-04676-MEMF-SSC, 2025 U.S. Dist. 20 LEXIS 208363, at *5 (C.D. Cal. Oct. 21, 2025) (citing Fed. R. Civ. P. 56(c)(3), (e)(2); 21 Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1029 (9th Cir. 2001)). 22 As the moving party, Plaintiff “bears the initial responsibility of informing the 23 district court of the basis for its motion and identifying those portions of [the record] . . . 24 which it believes demonstrate the absence of a genuine issue of material fact.” Celotex, 477 25 U.S. at 232. If the moving party does so, the nonmoving party must produce evidence to 26 support its claim or defense. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., 210 F.3d 27 1099, 1103 (9th Cir. 2000). Summary judgment is appropriate against a party that “fails to 28 make a showing sufficient to establish the existence of an element essential to that party’s 1 case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 2 322. 3 In considering a motion for summary judgment, the court must regard as true the 4 nonmoving party’s evidence if it is supported by affidavits or other evidentiary material. 5 Anderson, 477 U.S. at 255. The nonmoving party may not merely rest on its pleadings; it 6 must produce some significant probative evidence tending to contradict the moving party’s 7 allegations, thereby creating a material question of fact. Id. at 256–57 (holding that the 8 plaintiff must present affirmative evidence to defeat a properly supported motion for 9 summary judgment); see also Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (“A 10 summary judgment motion cannot be defeated by relying solely on conclusory allegations 11 unsupported by factual data.”) (citation modified). “A mere scintilla of evidence will not 12 do, for a jury is permitted to draw only those inferences of which the evidence is reasonably 13 susceptible; it may not resort to speculation.” Brit. Airways Bd. v. Boeing Co., 585 F.2d 14 946, 952 (9th Cir. 1978). 16 As an initial matter, the Court must clarify the scope of the parties briefing. Plaintiff 17 moves for partial summary judgment but does not clarify what aspects about the relief she 18 seeks render it “partial” relief. At first blush the use of the term “partial” appeared to be a 19 misnomer because Plaintiff expressly seeks summary judgment “on all counts contained in 20 the Complaint” (Mot. at 1.) But a searching review of the Motion reveals that she excludes 21 Brandt Placement Services LLC, a named defendant, from her request for relief. 22 Accordingly, the claims against Brandt Placement Services LLC will proceed no matter 23 the outcome of the Court’s decision here. 24 In responding to Plaintiff’s Motion, Defendants request summary judgment in their 25 favor pursuant to Rule 56(f)(1). (Resp. at 2.) But Defendants did not file their own summary 26 judgment motion in the time prescribed by the Court (see Doc. 15). If a party wishes to 27 seek summary judgment, it must do so in a properly and timely filed motion in compliance 28 with Rule 56(a)–(c), not merely call upon the Court’s discretionary and sua sponte 1 authority to enter summary judgment for a nonmovant permitted by Rule 56(f)(1). The 2 Court declines to construe Defendants’ response as a cross-motion for summary judgment 3 because it is untimely and procedurally improper. Having determined the scope of the 4 summary judgment briefing, the Court turns to evaluate whether Plaintiff should be granted 5 summary judgment. 6 To prevail on her FLSA claim, Plaintiff must prove that (1) she was employed by 7 Defendants during the relevant period; (2) she was a covered employee; and (3) Defendants 8 failed to pay her a minimum wage during the relevant period. Quinonez v. Reliable Auto 9 Glass, LLC, No. CV-12-000452-PHX-GMS, 2012 WL 2848426, at *2 (D. Ariz. July 11, 10 2012); see also Zorich v. Long Beach Fire Dept. & Ambulance Serv., Inc., 118 F.3d 682, 11 684 (9th Cir. 1997). Similarly, under the AMWA, Plaintiff must demonstrate that 12 Defendants were an employer under the statute, she was a qualified employee, and she was 13 not paid the applicable minimum wage for hours worked. See Alexander v. Golden 14 Margarita LLC, 819 F. Supp. 3d 962, 983 (D. Ariz. 2025). Finally, under the AWA, “if an 15 employer . . . fails to pay wages due to an employee, the employee may recover in a civil 16 action against an employer . . . an amount that is treble the amount of unpaid wages.” 17 A.R.S. § 23-355(A). 18 Each of Plaintiff’s claims rise and fall on whether she was paid for her final week 19 of work.1 Plaintiff argues that she was not paid and there is no genuine dispute of material 20 fact on this issue because Defendants lack payment records showing they did pay her. 21 According to Plaintiff, Defendants’ failure to keep payment records establishes a 22 presumption that Plaintiff was not paid. (Mot. at 8–10.) Plaintiff cites to Brock v. Seto, 790 23 F.2d 1446 (9th Cir. 1986) for that very premise. (Mot. at 9.) But Brock is inapplicable 24 because the issue there was not whether the employee was unpaid, but what amount was 25 owed to him. 790 F.2d 1446, 1448–49 (9th Cir. 1986). The issue before this Court is the

26 1 The parties disagree on whether Defendants are employers under the relevant federal and state laws, whether Plaintiff is the woman named Sofia Rodriguez Cota who worked for 27 Defendants, and whether Plaintiff should be equitably estopped or lacks standing to recover unpaid wages on behalf of the woman named Sofia Rodriguez Cota. But the Court need 28 not address these arguments because all of Plaintiff’s claims require that she was not paid wages owed to her, and there is a genuine issue of material fact as to this issue. 1 || inverse: there is no dispute as to the amount Plaintiff worked in her last week of || employment, but the parties dispute whether Plaintiff was paid for that work or not. Next, || Plaintiff cites Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946), which similarly dealt with the issue of establishing the amount an employee worked where the employer 5 || lacked those records. (Mot. at 9.) Mt. Clemens is inapplicable for the same reasons as 6|| Brock. Under the case law cited by Plaintiff, no such presumption exists.” 7 The only evidence produced by Plaintiff to support nonpayment is her own 8 || declaration that she was on vacation when she was fired and never received her last 9|| paycheck. (Doc. 32-8 4] 9-11.) But Plaintiff's declaration is directly contradicted by Mr. Brandt who declares that he personally handed Plaintiff an envelope containing the || amount she was owed for her last week of work when he terminated her on March 16, || 2026. (Doc. 34-2 9] 27-32.) Both narratives cannot be true, and neither party presents any 13] documentary evidence supporting their declarations.* Whether Plaintiff was paid for her 14]| last week of work boils down to a credibility determination that only the trier of fact can 15 || make. Accordingly, Plaintiff's request for summary judgment is denied. 16 IT IS ORDERED denying Plaintiff's Motion for Partial Summary Judgment (Doc. 31). 18 IT IS FURTHER ORDERED that this matter will proceed to trial, and the Court will set a pre-trial status conference by separate Order. 20 Dated this 4th day of June, 2026. CN 21 i . 22 Hon e Jofix J. Tuchi Unifga State#District Judge 23 24 23) 2 In addressing the same argument that Plaintiff makes here, at least one court in this District has reached the same conclusion. Lopez v. JJJRT Inc., No. CV-16-00764-PHX- 26] DJH, 2017 WL 4769528, at *2 (D. Ariz. July 20, 2017). > Defendant Bryant declares that the “$0” column on the time records provided in □□□□□□□□□□□ Exhibit I shows that “Sofia Rodriguez Cota was paid for every hour she worked.” (Doc. 34-2 424.) But Defendants do not explain how a demarcation of $0 on a payroll sheet 28 proves that Plaintiff was paid, and common sense suggests that a non-sum entry is no evidence of payment at all.

_5-