212 Cal. App. 4th 1439
Cal. Ct. App.2013Background
- Bay 101 operated a cardroom with poker and Cal games; dealers contributed a set amount of tips to a pool for nondealer employees.
- Class included dealers employed Aug 8, 1998, through Aug 4, 2006; plaintiff worked 1994–2002.
- Dealers’ “drop” started as fixed hourly amounts; later changed to per-down contributions; typical weekly tips ranged $750–$1,500; drop did not exceed 15% of tips.
- Recipients of tip pool varied over time; as of trial, categories included floor persons, casino hosts, porters, card control, and housekeeping.
- Dealers were informed of the policy since 1995 via a Tip Pooling Agreement; policy copies were provided, including in 2008 onward.
- The trial court granted summary adjudication on several claims; the jury trial addressed money had and received, and the UCL claim was tried to the court; judgment favored Bay 101 on all issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether tip pooling violates Labor Code 351 as applied | Avidor; tips given to a dealer are the dealer’s sole property | Bay 101; tip pooling is permissible and not a violation of 351 | Tip pooling not a violation of 351 as a matter of law |
| Whether tipper intent is relevant to whether tips are misappropriated | Intent matters; tips given to a dealer can be illegally taken if intended for the dealer | Intent is irrelevant when tips are given directly to dealers | Tipper intent not required to prove 351 violation; intent not a basis to defeat pool legality |
| Whether any Bay 101 agents were improperly included in the tip pool under 350(d) | Five categories were agents and thus outside the pool | No recipient met agent status; no supervisory authority shown | No substantial evidence that recipients were Bay 101 agents; pool permissible |
| Whether the conversion claim defeats Bay 101’s liability | Dealers owned their tips and were coerced into the pool | Dealers agreed to drop and pool; funds belonged to pool recipients | Conversion not shown; funds did not belong to dealers; affirmed summary judgment on conversion |
| Whether Bay 101 violated minimum wage (Lab. Code 1197) | Net pay could be below minimum wage due to deductions for the pool | Dealers were paid minimum wage plus tips; drops did not exceed tips | No triable issue; payment met minimum wage when tips considered; judgment affirmed |
Key Cases Cited
- Leighton v. Old Heidelberg, Ltd., 219 Cal.App.3d 1062 (Cal. App. Dist. 2, Div. 7 (1990)) (tip pooling not per se illegal; 351 does not preclude pooling; policy considerations)
- Henning v. Industrial Welfare Com., 46 Cal.3d 1262 (Cal. 1988) (tips cannot be used to reduce minimum wage; tips are employees’ property)
- Budrow v. Dave & Buster’s of California, Inc., 171 Cal.App.4th 875 (Cal. App. Dist. 4, 2009) (intent not a prerequisite to evaluating tip pools; direct vs. left for distinction not controlling)
- Chau v. Starbucks Corp., 174 Cal.App.4th 688 (Cal. App. Dist. 1, 2009) (collective tipping context; not controlling on casino direct-tip scenario)
- Jameson v. Five Feet Restaurant, Inc., 107 Cal.App.4th 138 (Cal. App. Dist. 4, 2003) (floor manager status affecting tip allocations; agent status discussion cited)
- Lu v. Hawaiian Gardens Casino, Inc., 50 Cal.4th 592 (Cal. 2010) (private right of action under UCL for §351 violations clarified)