Angulo v. Thunderbird Restaurants LLC et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Myrna Karina Acosta Angulo,
Plaintiff,
v.
Thunderbird Restaurants LLC, et al.,
Defendants.
No. CV-24-01897-PHX-JJT
ORDER
Before the Court is Plaintiff Myrna Karina Acosta Angulo’s Motion for Partial
Summary Judgment (Doc. 31, Mot.) supported by her Statement of Facts (Doc. 32, SOF),
to which Defendants responded (Doc. 33, Resp.) with their own Controverting Statement
of Facts (Doc. 34, CSOF), and Plaintiff replied (Doc. 35).
I. BACKGROUND
The following facts are undisputed. A woman named Sofia Rodriquez Cota worked
as a cook at a Scottsdale bar called T-Bird Tavern from January 18, 2024 to March 16,
2024. (SOF ¶¶ 20–21; CSOF ¶¶ 20–21.) T-Bird Tavern is owned and managed by
Thunderbird Restaurants, LLC that is in turn owned and managed by TB Ventures, LLC
and Ace High Partners, LLC. (SOF ¶ 2; CSOF ¶ 2.) TB Ventures is owned and managed
by Mr. Troy Brandt, while Ace High Partners is owned and managed by Mr. Kelley Albert
Cordova. (SOF ¶¶ 3–4; SCOF ¶¶ 3–4.) Sofia Rodriguez’s last day of work was March 16,
2024, and in the week leading up to her last day, she worked 32.58 hours. (SOF ¶ 24; CSOF
¶ 24.)
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Plaintiff, who states that she was the woman named Sofia Rodriguez Cota, now sues
Defendants for failure to pay her for her last week of work. She asserts claims under the
Fair Labor Standards Act, 29 U.S.C. § 206 (“FLSA”), the Arizona Minimum Wage Act,
A.R.S. § 23-363 (“AMWA”), and the Arizona Wage Act, A.R.S. § 23-350 (“AWA”). (Doc.
1.) Plaintiff now moves for summary judgement.
II. LEGAL STANDARD
Under Federal Rule of Civil Procedure 56(a), summary judgment is appropriate
when the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to prevail as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v.
Catrett, 477 U.S. 317, 322–23 (1986). “A fact is ‘material’ only if it might affect the
outcome of the case, and a dispute is ‘genuine’ only if a reasonable trier of fact could
resolve the issue in the non-movant’s favor.” Fresno Motors, LLC v. Mercedes Benz USA,
LLC, 771 F.3d 1119, 1125 (9th Cir. 2014) (citing Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986)). The court must view the evidence in the light most favorable to the
nonmoving party and draw all reasonable inferences in the nonmoving party’s favor.
Torres v. City of Madera, 648 F.3d 1119, 1123 (9th Cir. 2011). “The Court need not ‘comb
the record’ looking for other evidence; it is only required to consider evidence set forth in
the moving and opposing papers and the portions of the record cited therein.” New Leaf
Publ’g, Inc. v. Top Innovations LLC, No. 2:24-cv-04676-MEMF-SSC, 2025 U.S. Dist.
LEXIS 208363, at *5 (C.D. Cal. Oct. 21, 2025) (citing Fed. R. Civ. P. 56(c)(3), (e)(2);
Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1029 (9th Cir. 2001)).
As the moving party, Plaintiff “bears the initial responsibility of informing the
district court of the basis for its motion and identifying those portions of [the record] . . .
which it believes demonstrate the absence of a genuine issue of material fact.” Celotex, 477
U.S. at 232. If the moving party does so, the nonmoving party must produce evidence to
support its claim or defense. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., 210 F.3d
1099, 1103 (9th Cir. 2000). Summary judgment is appropriate against a party that “fails to
make a showing sufficient to establish the existence of an element essential to that party’s
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case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at
322.
In considering a motion for summary judgment, the court must regard as true the
nonmoving party’s evidence if it is supported by affidavits or other evidentiary material.
Anderson, 477 U.S. at 255. The nonmoving party may not merely rest on its pleadings; it
must produce some significant probative evidence tending to contradict the moving party’s
allegations, thereby creating a material question of fact. Id. at 256–57 (holding that the
plaintiff must present affirmative evidence to defeat a properly supported motion for
summary judgment); see also Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (“A
summary judgment motion cannot be defeated by relying solely on conclusory allegations
unsupported by factual data.”) (citation modified). “A mere scintilla of evidence will not
do, for a jury is permitted to draw only those inferences of which the evidence is reasonably
susceptible; it may not resort to speculation.” Brit. Airways Bd. v. Boeing Co., 585 F.2d
946, 952 (9th Cir. 1978).
III. ANALYSIS
As an initial matter, the Court must clarify the scope of the parties briefing. Plaintiff
moves for partial summary judgment but does not clarify what aspects about the relief she
seeks render it “partial” relief. At first blush the use of the term “partial” appeared to be a
misnomer because Plaintiff expressly seeks summary judgment “on all counts contained in
the Complaint” (Mot. at 1.) But a searching review of the Motion reveals that she excludes
Brandt Placement Services LLC, a named defendant, from her request for relief.
Accordingly, the claims against Brandt Placement Services LLC will proceed no matter
the outcome of the Court’s decision here.
In responding to Plaintiff’s Motion, Defendants request summary judgment in their
favor pursuant to Rule 56(f)(1). (Resp. at 2.) But Defendants did not file their own summary
judgment motion in the time prescribed by the Court (see Doc. 15). If a party wishes to
seek summary judgment, it must do so in a properly and timely filed motion in compliance
with Rule 56(a)–(c), not merely call upon the Court’s discretionary and sua sponte
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authority to enter summary judgment for a nonmovant permitted by Rule 56(f)(1). The
Court declines to construe Defendants’ response as a cross-motion for summary judgment
because it is untimely and procedurally improper. Having determined the scope of the
summary judgment briefing, the Court turns to evaluate whether Plaintiff should be granted
summary judgment.
To prevail on her FLSA claim, Plaintiff must prove that (1) she was employed by
Defendants during the relevant period; (2) she was a covered employee; and (3) Defendants
failed to pay her a minimum wage during the relevant period. Quinonez v. Reliable Auto
Glass, LLC, No. CV-12-000452-PHX-GMS, 2012 WL 2848426, at *2 (D. Ariz. July 11,
2012); see also Zorich v. Long Beach Fire Dept. & Ambulance Serv., Inc., 118 F.3d 682,
684 (9th Cir. 1997). Similarly, under the AMWA, Plaintiff must demonstrate that
Defendants were an employer under the statute, she was a qualified employee, and she was
not paid the applicable minimum wage for hours worked. See Alexander v. Golden
Margarita LLC, 819 F. Supp. 3d 962, 983 (D. Ariz. 2025). Finally, under the AWA, “if an
employer . . . fails to pay wages due to an employee, the employee may recover in a civil
action against an employer . . . an amount that is treble the amount of unpaid wages.”
A.R.S. § 23-355(A).
Each of Plaintiff’s claims rise and fall on whether she was paid for her final week
of work.1 Plaintiff argues that she was not paid and there is no genuine dispute of material
fact on this issue because Defendants lack payment records showing they did pay her.
According to Plaintiff, Defendants’ failure to keep payment records establishes a
presumption that Plaintiff was not paid. (Mot. at 8–10.) Plaintiff cites to Brock v. Seto, 790
F.2d 1446 (9th Cir. 1986) for that very premise. (Mot. at 9.) But Brock is inapplicable
because the issue there was not whether the employee was unpaid, but what amount was
owed to him. 790 F.2d 1446, 1448–49 (9th Cir. 1986). The issue before this Court is the
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
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
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.
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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
lacked those records. (Mot. at 9.) Mt. Clemens is inapplicable for the same reasons as
Brock. Under the case law cited by Plaintiff, no such presumption exists.2
The only evidence produced by Plaintiff to support nonpayment is her own
declaration that she was on vacation when she was fired and never received her last
paycheck. (Doc. 32-8 ¶¶ 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 ¶¶ 27–32.) Both narratives cannot be true, and neither party presents any
documentary evidence supporting their declarations.3 Whether Plaintiff was paid for her
last week of work boils down to a credibility determination that only the trier of fact can
make. Accordingly, Plaintiff’s request for summary judgment is denied.
IT IS ORDERED denying Plaintiff’s Motion for Partial Summary Judgment (Doc.
31).
IT IS FURTHER ORDERED that this matter will proceed to trial, and the Court
will set a pre-trial status conference by separate Order.
Dated this 4th day of June, 2026.
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-
DJH, 2017 WL 4769528, at *2 (D. Ariz. July 20, 2017).
3 Defendant Bryant declares that the “$0” column on the time records provided in Plaintiff’s
Exhibit I shows that “Sofia Rodriguez Cota was paid for every hour she worked.” (Doc.
34-2 ¶24.) But Defendants do not explain how a demarcation of $0 on a payroll sheet
proves that Plaintiff was paid, and common sense suggests that a non-sum entry is no
evidence of payment at all.
Honorable John J. Tuchi
United States District Judge
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