Safeway, Inc. v. Superior Court
190 Cal. Rptr. 3d 131
Cal. Ct. App.2015Background
- Putative class action by Esparza et al. against Safeway and Vons alleging failure to provide meal/rest breaks, failure to pay premium wages under Lab. Code §226.7, and UCL claims; class period Dec. 28, 2001–June 17, 2007 (≈200,000+ employees).
- Real parties moved to certify a nationwide meal-break class (store-level hourly employees) asserting petitioners had a system-wide practice of never paying §226.7 premium wages prior to June 17, 2007.
- Evidence for certification: managers’ deposition excerpts, employee declarations, and an accounting expert (sampled time-punch and payroll data) purporting to show millions of missed/short/delayed breaks and no §226.7 payments before mid-2007.
- Petitioners opposed certification with >2,000 employee declarations, manager declarations, and expert analysis arguing variability in punches, lack of a companywide denial-of-breaks policy, and that nonpayment alone is not a §226.7 violation per Kirby.
- Trial court certified the UCL meal-break class; petitioners sought writ relief. Court of Appeal reviewed whether common issues predominate and whether real parties’ UCL theory (system-wide failure to pay required premiums) is amenable to class treatment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether UCL class certification appropriate (predominance) | Class-wide proof can show petitioners never paid §226.7 premiums when required; common issue of system-wide nonpayment predominates. | Individualized inquiries (who actually missed breaks, waivers, store/shift variability) predominate; no companywide denial policy. | Certification affirmed: common issues predominate because liability and "fact of damage" (loss of statutory protections) are capable of common proof. |
| Viability of UCL theory based on nonpayment of §226.7 premiums | Nonpayment when employer-directed/pressured missed breaks occurred is an unlawful/unfair practice under the UCL and compensable as restitution. | Kirby shows nonpayment of premiums is not itself a §226.7 violation; thus UCL claim based on nonpayment fails. | Court: Kirby does not foreclose a UCL claim predicated on a practice of failing to pay premiums when employees were required to miss breaks; such a practice can be unlawful/unfair. |
| Whether Cel‑Tech safe harbor or tethering doctrine bars the UCL claim | The UCL can redress unfair practices independent of a separate statutory violation; public policy in Labor Code (payment of wages) supports unfairness finding. | Cel‑Tech limits UCL unfairness claims and requires statutory ‘‘safe harbor’’; §226.7/other law permits conduct. | Court: No safe harbor; Cel‑Tech does not bar an unfair practice claim here because the Labor Code policies favor prompt wage payment and do not clearly permit system-wide nonpayment. |
| Whether restitution amount is amenable to class-wide determination | Restitution is measured by loss of the statutory compensation guarantee (market-value approach); petitioners’ 2007 change in practice provides a benchmark; amount can be determined by common proof. | Calculating restitution requires individualized proof of which employees accrued unpaid premiums. | Court: Real parties’ restitution theory does not require infeasible individualized inquiries; the proposed measure is suitable for class treatment and petitioners forfeited many objections by failing to raise them below. |
Key Cases Cited
- Brinker Restaurant Corp. v. Superior Court, 53 Cal.4th 1004 (explains employer duty to provide off-duty meal periods and class-certification principles)
- Murphy v. Kenneth Cole Productions, Inc., 40 Cal.4th 1094 (characterizes §226.7 additional hour as a wage-like, dual-purpose remedy entitled immediately when breaks are denied)
- Kirby v. Immoos Fire Protection, Inc., 53 Cal.4th 1244 (holds nonpayment of §226.7 remedy is not the gravamen of a §226.7 violation)
- Cel‑Tech Communications, Inc. v. Los Angeles Cellular Telephone Co., 20 Cal.4th 163 (limits UCL unfairness claims via safe-harbor/tethering concepts)
- Cortez v. Purolator Air Filtration Products Co., 23 Cal.4th 163 (UCL restitution for unpaid wages)
- Duran v. U.S. Bank National Assn., 59 Cal.4th 1 (class certification and predominance analysis in wage/UCL context)
- Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (employer recordkeeping burdens and use of representative/statistical proof for wage claims)