PAMELA SILVA, Plaintiff and Appellant, v. SEE‘S CANDY SHOPS, INC., Defendant and Respondent.
No. D068136
Fourth Dist., Div. One.
Dec. 9, 2016.
7 Cal. App. 5th 235
PAMELA SILVA, Plaintiff and Appellant, v. SEE‘S CANDY SHOPS, INC., Defendant and Respondent.
Sullivan Law Group, William B. Sullivan and Eric K. Yaeckel for Plaintiff and Appellant.
Jackson Lewis, David S. Bradshaw, James T. Jones, Evan D. Beecher and Paul F. Sorrentino for Defendant and Respondent.
HALLER, J.—Pamela Silva filed an action against her former employer, See‘s Candy Shops, Inc., alleging wage and hour violations. Silva brought the action in her individual capacity, on behalf of a class of See‘s Candy employees, and on behalf of aggrieved workers under the Labor Code Private Attorneys General Act of 2004 (
In a prior appeal, we granted See‘s Candy‘s writ petition challenging the trial court‘s dismissal of See‘s Candy‘s affirmative defense that its rounding policy was lawful. (See‘s Candy Shops, Inc. v. Superior Court (2012) 210 Cal.App.4th 889 [148 Cal.Rptr.3d 690] (See‘s Candy).) After remand, See‘s Candy successfully moved for summary adjudication on Silva‘s PAGA cause of action. In a later proceeding, the court granted summary judgment in See‘s Candy‘s favor on all of Silva‘s remaining claims.
In this appeal, Silva challenges the summary adjudication order on her PAGA claim and the summary judgment on all remaining causes of action. She raises numerous contentions. We determine the court erred in granting summary judgment with respect to certain of Silva‘s individual claims, but the court properly entered judgment in See‘s Candy‘s favor on all remaining claims, including the PAGA cause of action and the class-certified claims.
FACTUAL AND PROCEDURAL SUMMARY
Background
In October 2009, Silva filed her original complaint alleging wage and hour violations, including See‘s Candy‘s failure to pay proper compensation for work performed.
The same day, Silva sent a letter to the Labor and Workforce Development Agency (LWDA) informing the agency, as required by PAGA‘s notice requirements, of her claim that See‘s Candy violated numerous Labor Code sections, including by failing to provide statutorily compliant meal and rest periods, overtime compensation, itemized wage statements, compensation for all hours worked, and reimbursement for business expenses. (See
Five days later, Silva filed her first amended cоmplaint (the operative complaint here), alleging three causes of action. In the first two causes of action, Silva alleged See‘s Candy violated California wage and hour laws and the unfair competition law (UCL;
In the third cause of action, Silva alleged a PAGA claim, seeking PAGA statutory penalties for the alleged Labor Code violations. (
In its amended answer, See‘s Candy denied Silva‘s allegations and asserted numerous affirmative defenses, including that its employees were fully and fairly compensated under its rounding policy and grace-period policy, and that these policies were consistent with state and federal laws.
Based on Silva‘s request, the court certified a class only on the issues of whether See‘s Candy‘s rounding and grace-period policies violate applicable law. The certified class consisted of California workers who were employed by See‘s Candy “from October 20, 2005 to the present.” The court certified the class on two issues: (1) “Whether class members suffered a loss of compensation when they clocked in and out on the ... timekeeping system utilized by See‘s [Candy] which rounded time to the nearest six minutes” (the rounding policy) and (2) “Whether class members suffered a loss of compensation when they clocked in or out on the ... timekeeping system utilized by See‘s [Candy] during the ‘grace period,’ defined as up to ten minutes before their scheduled start times and up to ten minutes after their scheduled quitting times” (the grace-period policy).
See‘s Candy successfully petitioned for a writ of mandate in this court. (See‘s Candy, supra, 210 Cal.App.4th 889.) Adopting the federal standard and the rule used by California‘s regulatory agency, we held an employer is entitled to use a rounding policy if the policy “is fair and neutral on its face” and “‘is used in such a manner that it will not result, over a period of time, in failure to compensate the employees properly for all the time they have actually worked.‘” (Id. at p. 907.) Applying this standard, we found that Silva did not meet her summary adjudication burden to show See‘s Candy‘s rounding policy was unlawful as a matter of law, and even if she did meet this burden, See‘s Candy‘s evidence showed the existence of triable issues of fact. (Id. at pp. 907-913.) Because See‘s Candy had not affirmatively moved for summary adjudication or judgment, we did not consider whether See‘s Candy was entitled to judgment based on its own submitted evidence.
Summary Adjudication on PAGA Claim
While this writ proceeding was pending in this court, See‘s Candy moved in the trial court for summary adjudication on Silva‘s PAGA claim seeking penalties for the alleged Labor Code violations. In this motion, See‘s Candy asserted separate arguments regarding two portions of Silva‘s PAGA claim: (1) the portion of the PAGA claim challenging See‘s Candy‘s rounding and grace-period polices and (2) the portion of the PAGA claim asserting other statutory violations (e.g., mealtime violations, failure to reimburse for business expenses).
On the portion of Silva‘s PAGA claim challenging See‘s Candy‘s rounding and grace-period policies, See‘s Candy argued it was entitled to judgment on this claim because (1) Silva‘s notice to the LWDA was insufficient to notify the agency of these challenges (see
On the portion of the PAGA claim seeking relief for the other alleged labor violations, See‘s Candy argued these claims were without merit based on See‘s Candy‘s discovery responses reflecting that these claims were no longer “at issue.”
Regarding the other alleged Labor Code violations, Silva argued she never abandoned these claims, and produced evidence of her counsel‘s January 2010 letters to defense counsel indicating the grace-period and rounding policy challenges were not the only claims being asserted in her complaint. She did not, however, produce any facts supporting the validity of these alleged Labor Code violations.
Shortly after the parties filed these briefs, the trial court stayed the matter pending the completion of the writ proceeding. Our decision in See‘s Candy then became final in February 2013. After remand, the trial court gave the parties leave to file supplemental briefs given the lengthy passage of time. In her supplemental brief, Silva focused only on her PAGA claims based on the rounding and grace-period claim, and did not present any argument or evidence on the individual claims.
After considering the parties’ submissions and conducting a hearing, the court (Judge Randa Trapp) granted summary adjudication on Silva‘s PAGA cause of action. On the portion of the PAGA claim challenging See‘s Candy‘s rounding and grace-period policies, the court found See‘s Candy was entitled to prevail as a matter of law because Silva‘s LWDA notice was defective as it was not sufficiently specific with respect to these particular challenges. (See
See‘s Candy‘s Summary Judgment Motion
Ten days later, See‘s Candy moved for summary judgment on the remaining claims alleged in Silva‘s first and second causes of action. In this motion, See‘s Candy argued the class-certified claims failed as a matter of law because the undisputed evidence demonstrated Silva could not prove the class lost compensation as a result of See‘s Candy‘s application of the rounding or grace-period policy.
Under the rounding policy, in and out punches are rounded (up or down) to the nearest 10th of an hour (every six minutes beginning with the hour mark). The time punches are thus rounded to the nearest three-minute mark. For example, if an employee clocks in at 7:58 a.m., the system rounds up the time to 8:00 a.m. If the employee clocks in at 8:02 a.m., the system rounds down the entry to 8:00 a.m. Both times are indicated on the punch card.
Under the separate grace-period policy, employees whose schedules have been programmed into the Kronos system may voluntarily punch into the system up to 10 minutes before their scheduled start time and 10 minutes after their scheduled end time. This grace period is voluntary, and is offered to employees to provide flexibility in the manner and times that workers clock in and out of the shifts. See‘s Candy‘s rules prohibit employees from working during the grace period. If an employee is asked to work during this time, the manager is required to make a timekeeping adjustment to ensure the employee is paid for that work. Managers at See‘s Candy shops closely monitor employee start and stop times to ensure they are not working outside their scheduled work times.
Because See‘s Candy assumes the employees are not working during the 10-minute grace period, if an employee punches into the system during this time, the employee is paid based on his or her scheduled start and stop time, rather than the punch time. In other words, the grace-period time punches accurately show when the employee punched in or out, but they do not show the beginning or end of the employee‘s work time, i.e., compensable time. Generally, if the grace-period rule is applied, the rounding policy becomes irrelevant because the start and stop time will be exactly the employee‘s scheduled time and there will be no need to round down or up to the nearest 10th of an hour.
See‘s Candy also presented two declarations of Dr. Ali Saad, a labor economist and statistician, who examined thousands of See‘s Candy time records. Dr. Saad said that each time punch record contained two entries: (1) the actual time the employee clocked in or out and (2) the actual punch time
In his 2010 study, Dr. Saad examined See‘s Candy employee time punch records from October 2005 to March 2010. Dr. Saad found See‘s Candy‘s rounding policy resulted in a total gain of 2,230 hours for the class members as a whole. For plaintiff Silva, Dr. Saad found an “aggregate shortfall” of .47 hours or 28 minutes, which he said “equates to a shortfall in the average rounded relative to actual shift of 2 seconds.” Based on these calculations and a statistical analysis, Dr. Saad opined that the rounding policy “is exactly neutral” and unbiased.
In the 2011 study, Dr. Saad expanded the coverage period to April 2011 and also included hourly employees who worked in See‘s Candy‘s administrative office locations. This increased the number of employees analyzed from 7,500 to 9,000, and the number of shifts from approximately 900,000 to more than 1.2 million. Dr. Saad also specifically considered California law providing a worker had the right to overtime pay after working an eight-hour day.
Based on this study, Dr. Saad reaffirmed that See‘s Candy‘s rounding rule is “both mathematically and empirically unbiased.” Specifically, he concluded (1) the aggregate impact of rounding actual time punches produced a net surplus of 2,749 employee work hours in time paid and thus resulted in a net economic benefit to the employees as a group; (2) 67 percent of the employees had either no impact or a net gain under the rounding policy; (3) the rounding policy did not negatively impact employee overtime compensation: it was “virtually a wash—neither the employees nor See‘s benefited from this rounding practice“; and (4) there was no meaningful impact on Silva‘s hours paid under the rounding practice; she obtained an aggregate surplus of 1.85 hours.
In reaching these conclusions, Dr. Saad said he had assumed employees did not work during the grace period; whether this assumption was correct could not be observed from the data; and he was not asked to address this factual issue. Dr. Saad indicated he did not round during the 10 minutes before or after an employee‘s scheduled time period if the employee‘s scheduled work times had been programmed into the Kronos system because under the grace-period policy, the emрloyee would be paid from the scheduled time, not from a rounded time.
Silva‘s Summary Judgment Opposition
In opposition, Silva argued the summary judgment motion must be denied because See‘s Candy made no attempt to meet its burden to show her nonclass claims (nonrounding, nongrace-period claims) alleged in her first two causes of action have no merit. She noted that in her amended complaint she alleged that she did not receive statutorily required rest and meal periods in violation of
“While I was working at SEE‘S, there were times when our store was very busy. This was especially true during the Holiday Season, which normally lasted from October through January, each year. During these peak times, it was extremely rare that I would be provided a rest break.”
“I also know that I never received a rest period payment on the occasions where I was not provided a rest break. In fact, I am unaware of anyone at SEE‘S who ever received a rest period payment. [] Throughout my employment, but especially during the Holiday season, there were occasions when it was just not possible for me to get to take a full 30 minute meal break, because we were too busy in the store.”
“During these interrupted lunch breaks, my time records would show I was punched out for lunch. However, I would be asked by SEE‘S to perform work or assist a customer during my lunch break. I would do so when asked, even though I did not punch back in to be paid for that time. []... I do not believe I was ever given a meal period рayment for these interrupted lunches.”
“Additionally, while working for SEE‘S, I was often required to use my personal car to drive to the bank for See‘s business. While I did receive some reimbursement from SEE‘S, I do not believe it was enough to cover all of my expenses. I also received, and had to make, calls for SEE‘S on my personal cell phone, for which I never received reimbursement.”
Silva also contended that the summary judgment motion on her class claims (challenging the rounding and grace-period policies) was without merit because the See‘s Candy court had already ruled triable factual issues existed on these issues. She alternatively argued that See‘s Candy did not meet its summary judgment burden because Dr. Saad had made numerous unsupported assumptions and his conclusions were contrary to applicable law. Silva also submitted the declaration of her own expert, Robert Fountain, a statistics professor, to show the existence of triable issues of fact on her rounding and grace-period claims. In his declaration, Fountain opined that See‘s Candy‘s timekeeping “system is inherently not fair or neutral in its application to the employees,” and that numerous employees “lost very large amounts of compensation....” 2
To show triable issues of fact on her challenge to See‘s Candy‘s grаce-period policy, Silva mainly argued that the employees were under See‘s Candy‘s control while clocked into the Kronos system. Silva relied on her expert‘s declaration (who assumed that employees were working during the grace period) and excerpts from her deposition testimony, in which she said that she occasionally saw employees clocking in 10 minutes before their shifts and they would then “either ... do hand exercises or ... do things or whatever, you know. They would just come in and start their shift and work.” Silva acknowledged, however, that she did not know if these other employees’ schedules were programmed into the Kronos system and did not know if they were paid for the time they worked before their scheduled shifts.
See‘s Candy‘s Reply
In its reply memorandum on the issue of Silva‘s individual claims, See‘s Candy argued that Silva‘s first two causes of action encompass only class allegations (challenging See‘s Candy‘s rounding and grace-period policies), and that these causes of action did not include any individual claims. See‘s Candy also presented a copy of a July 2010 settlement and release agreement (Settlement Agreement) between See‘s Candy and Silva, in which Silva agreed to release discrimination claims she previously filed with the Equal
See‘s Candy also asserted numerous objections to Fountain‘s declaration, including that Fountain‘s opinions lack factual foundation and were based on assumptions contrary to the law established in See‘s Candy.
Silva‘s Response to New Material Submitted in See‘s Candy‘s Reply
Silva objected to See‘s Candy presenting new evidence (the Settlement Agreement), and argued that the Settlement Agreement was irrelevant because it applied only to her discrimination claims and not to her wage and hour claims alleged in the first amended complaint. Silva also objected to See‘s Candy‘s counsel‘s proposed amended notice to add a summary adjudication motion as an alternative to her summary judgment motion.
Court‘s Ruling Granting Summary Judgment
After considering the parties’ submissions and conducting a hearing, the court grantеd See‘s Candy‘s motion in its entirety. With respect to the class claims, the court first sustained See‘s Candy‘s evidentiary objections to the declaration of Silva‘s expert, Fountain. The court then found that See‘s Candy met its “initial burden on summary judgment of demonstrating that the time rounding policy was facially neutral,” and Silva did not meet her burden to create a triable issue of fact on this issue. The court similarly found See‘s Candy met its burden to show its grace-period policy did not result in undercompensation, and Silva did not meet her burden to show a triable factual issue on the lawfulness of this policy.
The court also agreed with See‘s Candy that Silva had not alleged individual claims in her first two causes of action. The court noted that although the complaint‘s caption stated the claims were being brought in Silva‘s individual capacity, the body of the complaint focused on her class allegations. The court also found Silva had released any individual claims by entering into the Settlement Agreement.
In moving for reconsideration, Silva objected to the court‘s conclusion that she had not alleged individual claims in her amended complaint. Silva
DISCUSSION
I. Review Standards
A defendant moving for summary judgment or summary adjudication “bears the burden of persuasion that there is no triable issue of material fact and that [the defendant] is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 [107 Cal.Rptr.2d 841, 24 P.3d 493] (Aguilar).) To meet this burden, the defendant must show one or more elements of the cause of action cannot be established, or that there is a complete defense to that cause of action. (Ibid.) This burden can be met by relying on the opposing party‘s factually inadequate discovery responses if these responses show the plaintiff “will be unable to prove its case by any means.” (Weber v. John Crane, Inc. (2006) 143 Cal.App.4th 1433, 1439 [50 Cal.Rptr.3d 71]; see Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 78–81 [81 Cal.Rptr.2d 360].) A defendant seeking to prevail on this ground must make an affirmative showing that the plaintiff does not possess, and cannot reasonably obtain, evidence to prove his or her case. (Collin v. CalPortland Co. (2014) 228 Cal.App.4th 582, 587 [176 Cal.Rptr.3d 279]; see Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768 [107 Cal.Rptr.2d 617, 23 P.3d 1143] (Saelzler).)
If the defendant does not present sufficient evidence to meet its initial burden, the court must deny the motion. (Aguilar, supra, 25 Cal.4th at p. 850.) But if the defendant satisfies its burden, “the burden shifts to the plaintiff ... to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” (Id. at p. 849.) The plaintiff must present admissible evidence to establish a triable issue of fact. (Dollinger DeAnza Associates v. Chicago Title Ins. Co. (2011) 199 Cal.App.4th 1132, 1144-1145 [131 Cal.Rptr.3d 596].) An “issue of fact ... is not created by ‘speculation, conjecture, imagination or guess work.‘” (Sinai Memorial Chapel v. Dudler (1991) 231 Cal.App.3d 190, 196 [282 Cal.Rptr. 263].)
We review de novo a summary judgment or summary adjudication. (Saelzler, supra, 25 Cal.4th at p. 767.) We must affirm the court‘s ruling if it
II. Summary and Overview of Conclusions
Silva‘s first amended complaint identifies three causes of action: (1) violations of various Labor Code sections; (2) violation of the UCL; and (3) entitlement to PAGA penalties for the violations described in the first cause of action. The court certified a class only on one of Silva‘s claims within her first two causes of action: Silva‘s allegation that See‘s Candy‘s timekeeping policies (rounding and grace-period policies) rеsulted in undercompensating its employees for all work performed.
After the See‘s Candy remand, the trial court first heard See‘s Candy‘s summary adjudication motion on the PAGA cause of action, and the court granted the motion, finding (1) Silva could not prevail on the PAGA cause of action based on her challenge to the rounding and grace-period policies because Silva did not provide adequate statutory notice of this claim to the LWDA and (2) Silva could not prevail on the PAGA cause of action based on the remaining alleged Labor Code violations because she had abandoned these claims.
The court then granted See‘s Candy‘s summary judgment motion on the remaining causes of action based on the court‘s conclusion that (1) the undisputed facts show Silva could not recover on her class claims because the timekeeping policies were proper under California law and did not result in undercompensation and (2) Silva had not alleged individual claims in her first two causes of action, or had settled and dismissed those claims.
On appeal, Silva challenges both summary judgment and summary adjudication.
As to the summary judgment, we conclude See‘s Candy met its burden to show it was entitled to judgment as a matter of law on the class-certified claims (failure to properly pay wages based on See‘s Candy‘s rounding and
This latter conclusion does not mean the summary judgment must be reversed in its entirety. Although See‘s Candy did not bring a summary adjudication motion as an alternative to its summary judgment motion on the first two causes of action, it did request leave to amend its summary judgment notice to add the alternate summary adjudication request. This proposed amendment should have been granted. There is no showing Silva would have been prejudiced by permitting the amendment. Additionally, as explained below, allowing the amendment promotes judicial efficiency and fairness.
Accordingly, we uphold the summary judgment on the causes of action challenging See‘s Candy‘s rounding and grace-period policies, and reverse on the causes of action asserting the individual meal, rest-period, and business expense statutory violations.
As to the PAGA (third) cause of action, we affirm the court‘s dismissal of this cause of action in its entirety in the summary adjudication proceeding. On the portion of the PAGA cause of action challenging the rounding and grace-period policies, we do not reach the LWDA notice issue because the court‘s conclusion was correct on another ground. A PAGA claim is viable only if the underlying Labor Code violations have merit. Based on our finding that the undisputed facts show Silva cannot prevail on her rounding and grace-period challenges, it necessarily follows that Silva cannot prevail on her PAGA cause of action based on these same theories, even if she gave proper notice.
As to the challenged summary adjudication on the portion of the PAGA cause of action based on the other Labor Code violations, we determine the court properly granted the summary adjudication because See‘s Candy met its burden to show factually deficient discovery responses, and Silva failed to meet her burden to show a triable factual issue.
A. Summary Judgment on Class Claims Challenging Rounding and Grace-period Policies
1. Rounding Policy
In See‘s Candy, this court held “the rule in California is that an employer is entitled to use the nearest-tenth rounding policy if the rounding policy is fair and neutral on its face and ‘it is used in such a manner that it will not result, over a period оf time, in failure to compensate the employees properly for all the time they have actually worked.‘” (See‘s Candy, supra, 210 Cal.App.4th at p. 907.) We reasoned that time rounding is a practical method for calculating work time and can be used to ensure all workers are fully compensated for their work for a relevant time period. (Id. at p. 903.) We stated: “Assuming a rounding-over-time policy is neutral, both facially and as applied, the practice is proper under California law because its net effect is to permit employers to efficiently calculate hours worked without imposing any burden on employees.” (Ibid.) Under this standard, courts have upheld an employer‘s rounding policy if “‘on average, [it] favors neither overpayment nor underpayment,‘” but have rejected timekeeping policies that “‘systematically undercompensate[] employees‘” such as where the employer‘s rounding policy “‘encompasses only rounding down.‘” (Id. at pp. 901-902; see Corbin v. Time Warner Entertainment-Advance/Newhouse Partnership (9th Cir. 2016) 821 F.3d 1069, 1075–1078 [agreeing with See‘s Candy‘s reasoning as applied to federal rounding rule].)
Applying these principles, in See‘s Candy we determined the trial court erred in granting Silva‘s summary adjudication motion on See‘s Candy‘s rounding defense. (See‘s Candy, supra, 210 Cal.App.4th at p. 892.) Because she was the moving party below, Silva had the initial burden to show See‘s Candy‘s rounding policy was unlawful. (Id. at p. 900.) In considering whether she met this burden, we discussed Silva‘s expert‘s opinion that the rounding policy resulted in employees not being fairly compensated, but found this evidence did not satisfy the burden because the expert‘s opinion was based on an unsupported assumption that employees worked during the grace periods. (Id. at pp. 907-908Id. at p. 908.) We thus granted See‘s Candy‘s writ petition and ordered the court to reinstate See‘s Candy‘s defense that its rounding practices were lawful. (Id. at pp. 892, 913-914.)
After remand and after successfully obtaining dismissal of the PAGA cause of action, See‘s Candy moved for summary judgment on the rounding issue
This evidence met See‘s Candy‘s summary judgment burden on Silva‘s claim challenging See‘s Candy‘s rounding practicе. In opposing the summary judgment motion, Silva presented the declaration of statistics professor Robert Fountain, who opined that the system “does not appear to be fair or neutral as there is a net loss of regular time worked and a net loss of overtime worked.” See‘s Candy objected to the opinions and conclusions in Fountain‘s declaration on numerous grounds, including that Fountain‘s opinions were contrary to applicable legal standards, were without evidentiary foundation, and improperly failed to distinguish between the rounding policy and the grace-period policy. The court sustained each of these objections.
On appeal, Silva cites to her expert declaration to show a triable issue of fact, but does not challenge the court‘s evidentiary ruling. In her opening brief, she asserts only that “it was error for the Court to ignore” her “evidence that See‘s employees were grossly undercompensated.” But she does not further discuss this point, cite to her expert‘s declaration, challenge the court‘s evidentiary ruling, or provide any supporting legal authority. In her reply brief, Silva summarily states (without a legal or factual citation) that “It was an abuse of discretion for the Court to sustain See‘s objections and completely ignore Dr. Fountаin‘s testimony, while simultaneously allowing Dr. Saad‘s conclusions into evidence.” She does not identify any legal basis for this assertion. A conclusory statement is insufficient to challenge a court‘s evidentiary ruling. An undeveloped argument unsupported by any citation to any legal or factual authority is forfeited. (See Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852 [57 Cal.Rptr.3d 363] [“When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived.“].) Accordingly, we are bound by the court‘s evidentiary ruling and disregard Fountain‘s declaration for purposes of our appellate analysis. (Frittelli, Inc. v. 350 North Canon Drive, LP (2011) 202 Cal.App.4th 35, 41, fn. 1 [135 Cal.Rptr.3d 761].)
Silva also contends See‘s Candy never met its own summary judgment burden because Dr. Saad improperly presumed employees did not work
In a related argument, Silva argues See‘s Candy‘s rounding policy is inherently unfair because its grace-period policies mean that an employee‘s time will always round forward to the employee‘s scheduled start time and round backward to the employee‘s scheduled end time. This argument reflects a misunderstanding of See‘s Candy‘s grace-period policy. The policy is not a rounding policy in the sense that it recalculates an employee‘s work time to the nearest three-minute mark. Instead, the grace-period policy is a method that seeks to accurately count each employee‘s actual work time. If the employee is not working during the grace period, the calculation of the employee time from the employee‘s scheduled start time or end time is accurate.
Silva also contends See‘s Candy did not meet its summary judgment burden because See‘s Candy‘s rounding policy “fails to account for the difference in monetary value between regular minutes and overtime minutes.” However, Dr. Saad specifically opined that See‘s Candy‘s “rounding policy did not negatively impact employees’ overtime compensation.” After considering the rounding policy in light of California‘s eight-hour-daily overtime rules, Dr. Saad opined that it was “virtually a wash” with respect to overtime pay, and “neither the employees nor See‘s [Candy] benefited from this rounding practice.” Dr. Saad‘s expert opinion was sufficient to meet See‘s Candy‘s burden, and Silva did not present any contrary admissible evidence on this issue.
Silva also argues that See‘s Candy has “several attendance (‘tardy‘) policies which disciplined employees for clocking in late [and] [t]hese policies create a multitude of slightly early clock-ins which always round in favor of See‘s.” Silva‘s cited evidence does not support this claim. If the rounding policy is neutral and the tardiness policy is based solely on the actual punch time, there is no basis for finding that See‘s Candy unfairly benefits from the rounding policy because of its tardiness policies.
Silva also contends the trial court erred in granting summary judgment because See‘s Candy held the legality of the rounding policy must be decided by a jury. (See‘s Candy, supra, 210 Cal.App.4th 889.) Silva misreads our prior decision. Because See‘s Candy had not moved for summary adjudication or summary judgment in the prior proceeding, we had no occasion to
Silva also devotes lengthy portions of her appellate briefs to her argument that the trial court erred in granting See‘s Cаndy‘s summary judgment motion because the court improperly imposed the initial burden of proof on her. We disagree with Silva‘s reading of the trial court‘s order. Although the order contained some ambiguity on the burden issue, the court clearly stated that See‘s Candy had the “initial burden on summary judgment [to] demonstrat[e] that the time rounding policy was facially neutral....” More important, even if the trial court misapplied the summary judgment burden rules, on our de novo review we evaluate the court‘s final determination, and not its rationale. (Gafcon, Inc. v. Ponsor & Associates (2002) 98 Cal.App.4th 1388, 1402 [120 Cal.Rptr.2d 392].) We have conducted an independent analysis of the parties’ contentions, and on our application of the proper summary judgment burden rules, we have concluded that See‘s Candy met its burden to show the rounding policy is fair and neutral on its face and is used in a manner that over a relevant time period will compensate the employees for all the time they have actually worked. Because Silva produced no admissible evidence to rebut this conclusion, the trial court properly found Silva‘s claims based on the rounding policy were without merit.
2. Grace-period Policy
Under See‘s Candy‘s grace-period policy, employees whose schedules have been programmed into the Kronos system may voluntarily punch the time clock up to 10 minutes before their schеduled start times and 10 minutes after their scheduled end times. Because employees are required to comply with company policy that prohibits them from working during the 10-minute grace period, if an employee punches into the system during the grace period, the employee is paid based on his or her scheduled start and stop time, rather than the punch time.
Silva does not challenge the legality of this policy if during the grace period the employee was not working and was not under the employer‘s control. But she argues the court erred in granting summary judgment because the evidence showed employees were under the control of See‘s Candy during the grace period, and were not compensated for this time. In this regard, Silva asserts that an employer must prove the accuracy of its time records, particularly when there is any discrepancy between the clocked-in time and the paid time. We agree with this principle but find that See‘s Candy met its summary judgment burden on these issues, and Silva did not come forward with evidence showing a triable factual issue.
In this case, See‘s Candy presented evidence that it had a policy of prohibiting employees from working during the grace period and submitted numerous employee declarations supporting that See‘s Candy exercised no control over the employees during the grace period. This evidence showed that See‘s Candy employees were permitted to voluntarily clock in early or clock out late, and during this time they could (and did) engage exclusively in personal activities, including leaving the premises to run quick errands, drinking coffee, applying makeup, and making personal calls. See‘s Candy also presented evidence that if any worker did perform work during the grace period he or she would be paid for that time.
This evidence established See‘s Candy employees were in a different position from the Morillion agricultural workers, who were required to be confined to a bus to be transported to their next workplace. Further, contrary to Silva‘s argument, the factual record does not requires us to “assume” or “presume” that the employees did not work during the grace period. See‘s Candy presented admissible, credible evidence that its employees engaged only in personal activities during the grace period and were neither working nor under See‘s Candy‘s control during this time. Silva did not present any contrary evidence.
Silva‘s reliance on Safeway v. Superior Court (2015) 238 Cal.App.4th 1138 [190 Cal.Rptr.3d 131] is unhelpful. In Safeway, the Court of Appeal upheld a trial court‘s order certifying a class alleging an employer failed to provide required meal and rest breaks. (Id. at p. 1145.) In concluding the employees sufficiently demonstrated an employer policy to pressure employees not to take meal breaks, the court quoted a concurring opinion in Brinker Restaurant
This case is in a different procedural context: we are reviewing a summary judgment and not a class certification. But even if there exists a presumption here that all See‘s Candy employees were working during the grace period, See‘s Candy proffered admissible evidence rebutting the presumption and showing that the employees did not in fact work during the grace period.
At that point in the summary judgment proceeding, it was Silva‘s burden to submit evidence negating this fact. As her only attempt to do so, Silva relied on excerpts from her own deposition in which she testified that she sometimes saw employees clocking in before their shifts and they would then “either ... do hand exercises or ... do things or whatever, you know. They would just come in and start their shift and work.” Silva acknowledged, however, that she did not know if these employees’ schedules were programmed into the Kronos system (a predicate to the application of the grace-period rule) and did not know if these employees were paid for the time they worked before their shifts. Without this information, there is no reasoned basis for concluding that employees were not fully paid for their time under the grace-рeriod policy. Likewise, Silva‘s argument that employees were not permitted to leave the premises during the grace period was unsupported by the factual record. Silva relied on deposition testimony that pertained to clocking in and out, and did not refer to grace-period personal discretionary activities.
B. Summary Judgment on Silva‘s Individual Claims
Silva next contends the court erred in adjudicating her individual claims even though See‘s Candy did not move for summary judgment on these claims.
See‘s Candy acknowledges it did not move for summary judgment or summary adjudication on any individual claims asserted by Silva in the first and second causes of action. After Silva raised the issue in her summary judgment opposition papers, See‘s Candy asserted several responsive arguments: (1) Silva never alleged individual (nonclass claims) in her first and second causes of action; (2) Silva released any such claims in the July 2010 Settlement Agreement; and (3) if the court finds these individual claims remained, the court should provide See‘s Candy with leave to amend its summary judgment notice to add an alternative motion for summary adjudication (on the class claims). The court agreed with the first two arguments and thus found that summary judgment was not precluded.
Under the required liberal review standards applicable to pleadings challenged on a summary judgment motion (Taylor v. Lockheed Martin Corp. (2000) 78 Cal.App.4th 472, 479 [92 Cal.Rptr.2d 873]; Nelson v. Superior Court (2006) 144 Cal.App.4th 689, 692 [50 Cal.Rptr.3d 684]), we find Silva pled sufficient facts to allege entitlement to recover on individual claims. Silva also presented her own declaration to support her factual claims that she was denied required meal and rest breaks and was not reimbursed for business expenses to support the allegations in her first and second causes of action. Silva stated in her declaration that it was “extremely rare” that she was provided a rest break during the holiday season; it was usually “not possible” for her to take a full meal break; she was frequently asked to wоrk while she was clocked out for her lunch break; and she did not receive reimbursement for required business expenses.
We reject See‘s Candy alternate argument that Silva is barred from recovering on the individual claims because Silva released these claims in the Settlement Agreement. We note initially that by first presenting the Settlement Agreement in its reply, See‘s Candy did not provide Silva fair opportunity to counter this evidence. Where a remedy as drastic as summary judgment is involved, due process requires a party be fully advised of the issues to be addressed and be given adequate notice of what facts it must rebut in order to prevail. (San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 316 [125 Cal.Rptr.2d 499].) Additionally, on our independent review of the Settlement Agreement, the agreement does not support See‘s Candy‘s argument that Silva released her individual wage and hour claims. In the agreement, Silva agreed to “immediately withdraw with prejudice her discrimination complaints filed with the Department of Fair Employment & Housing ... and the Equal Employment Opportunity Commission,” and agreed she would not assert any claim “arising from or attributable to any alleged unlawful practice of See‘s” with the exception of the claims alleged in the existing action, referred to as the “Class Action.” (Italics added.) Specifically, the Settlement Agreement states: “Class Aсtion
Viewing the plain language of this exception in the context of the entire Settlement Agreement, Silva agreed to release all past and future claims, except for “the claims” alleged in her existing action (at that time, the first amended complaint), which included her individual claims. (Italics added.) Read in context, the reference to the “Class Action” was a descriptive term to refer to the existing action, and not one of limitation. There is nothing in the Settlement Agreement supporting a reasonable conclusion that the “Class Action” language was intended to limit the exception to only the class action allegations in the complaint. This interpretation is consistent with See‘s Candy‘s subsequent actions in which See‘s Candy (after the Settlement Agreement was executed) assumed Silva had continued rights to pursue her PAGA claims despite they were not encompassed within the certified class claims.
We conclude See‘s Candy did not meet its summary judgment burden on Silva‘s individual claims alleged in her first and second causes of action. We thus reverse the judgment with respect to these claims.
Silva contends this conclusion requires that we also reverse the summary judgment on the class (rounding and grace-period) chаllenges because See‘s Candy did not move for summary adjudication on these causes of action as an alternative to summary judgment. We disagree. See‘s Candy specifically requested the trial court to allow it to amend its summary judgment notice to include a summary adjudication motion in the alternative, and filed a proposed amended notice. The court should have granted this request. There was no prejudice to Silva because she had a full and fair opportunity to address the arguments on the rounding and grace-period claims. The record before us consists of more than 1,300 pages and the parties have submitted voluminous appellate briefs on the rounding and grace-period issues. We have thoroughly reviewed the record and arguments on the rounding and grace-period claims, and have concluded Silva‘s claims have no factual basis. It would be nonsensical to reverse the court‘s ruling on the rounding and grace-period claims and require the parties to go to trial on those issues merely because there may exist potential triable issues of fact on Silva‘s nonrounding, nongrace-period, nonPAGA claims. See‘s Candy specifically requested the court for leave to amend its notice to include a summary adjudication. This motion should have been granted.
In reaching this conclusion, we are aware that the rounding and grace-period claims and the individual claims were both asserted in the first and
IV. Summary Adjudication on PAGA Cause of Action
In her PAGA cause of action (
A. PAGA Claim Challenging Rounding and Grace-period Policies
See‘s Candy moved for summary adjudication on Silva‘s PAGA cause of action challenging See‘s Candy‘s rounding and grace-period policies based on several grounds, including (1) Silva‘s notice to the LWDA was insufficient to notify the agency of the rounding and grace-period challenges (see
The court granted the motion primarily on grounds of insufficiency of the LWDA notice, and rejected See‘s Candy‘s remaining arguments. On appeal,
We agree with the latter argument and thus do not reach the LWDA notice issue or the other PAGA procedural and constitutional issues raised by See‘s Candy. Even assuming the court erred in granting summary adjudication on the PAGA claim regarding the claimed deficient notice on the rounding and grace-period challenges, the PAGA claims would have been properly dismissed as part of the summary judgment motion that was filed shortly after the PAGA matter was adjudicated.
In ruling on See‘s Candy‘s summary judgment motion less than three months after granting summary adjudication on Silva‘s PAGA claims, the trial court dismissed the rounding and grace-period claims alleged in Silva‘s first and second causes of action because See‘s Candy met its burden to show these claims were without merit and Silva failed to raise a triable issue regarding the legality of the rounding and grace-period policies. We have affirmed that ruling. The first portion of Silva‘s PAGA claim was based on the same substantive allegations (challenging the lawfulness of the rounding and grace-period policies) adjudicated in the summary judgment motion. Thus, this portion of the PAGA claim necessarily fails. (Rope v. Auto-Chlor System of Washington, Inc. (2013) 220 Cal.App.4th 635, 650 [163 Cal.Rptr.3d 392] [recovery of civil penalties under PAGA “‘requires proof of a Labor Code violation‘“]; accord, Arias v. Superior Court (2009) 46 Cal.4th 969, 987 [95 Cal.Rptr.3d 588, 209 P.3d 923].) Because the record shows that See‘s Candy was entitled to judgment as a matter of law on Silva‘s claim that See‘s Candy‘s timekeeping policies violated the Labor Code, it necessarily follows that Silva could not have recovered on her PAGA claim on this same theory, regardless of the adequacy of the initial PAGA notice. Under the California Constitution, a judgment is reversible only if prejudicial error is established. (See Smith v. Smith (2012) 208 Cal.App.4th 1074, 1078 [146 Cal.Rptr.3d 135].)
B. Summary Adjudication on Claims Other than Rounding or Grace Period
In the second portion of her PAGA cause of action, Silva alleged several challenges other than the rounding and grace-period challenges. Specifically, Silva alleged that See‘s Candy failed to provide employees with required meal and rest periods (
This evidence met See‘s Candy‘s summary adjudication burden. A party may meet its burden by showing the opposing party provided factually devoid responses in answering a written interrogatory requesting all facts to support a claim. (See Casey v. Perini Corp. (2012) 206 Cal.App.4th 1222, 1228-1231 [142 Cal.Rptr.3d 678]; Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 102-107 [41 Cal.Rptr.3d 229] (Andrews); Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 578 [37 Cal.Rptr.2d 653].) A plaintiff‘s response to a comprehensive interrogatory question must fully disclose the information known at the time of the discovery request. (Andrews, supra, 138 Cal.App.4th at p. 106.)
In answering a direct request that she “state with particularity” the facts supporting her PAGA claim, Silva discussed only facts pertaining to the rounding and grace-period challenges. (Capitalization omitted.) From this response, it is reasonable to presume that Silva was unaware of any other facts or theories supporting her PAGA claim. Silva argues this inference is unreasonable because she expressly reserved the right to supplement her responses, and See‘s Candy delayed some of its own discovery responses. Although Silva had the right to add information to her interrogatory responses, the critical point is that she never did so. See‘s Candy asked for information that was within Silva‘s knowledge and control, and Silva‘s omission of facts to support her nonrounding, nongrace-period claims was sufficient to meet See‘s Candy‘s burden to show these factual theories underlying Silva‘s PAGA claim were nonexistent or had been abandoned.
Because See‘s Candy met its summary adjudication burden, the burden of production shifted to Silva to establish with admissible evidence the existence of a triable issue of fact as to her PAGA claim on the nonrounding, nongrace-period theories. (See Andrews, supra, 138 Cal.App.4th at p. 107.) On our independent review of the record, we conclude Silva did not do so.
V. Silva‘s Violation of Appellate Rules
It is a fundamental principle of appellate law that the lower court‘s judgment is presumed to be correct. An appellant has the burden to overcome the presumption of correctness and show prejudicial error. (See Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [86 Cal.Rptr. 65, 468 P.2d 193].) To satisfy this burden, the appellant must comply with rules that ensure both parties receive a fair and complete review of their contentions. Silva failed to comply with several of these rules.
Most important, Silva violated the rule that an appellant‘s brief must provide “a summary of the significant facts” relevant to the appellate issues raised in the case. (
Additionally, Silva violated the rule requiring an appellant to provide a record sufficient to determine whether the asserted errors are meritorious. (See Stasz v. Eisenberg (2010) 190 Cal.App.4th 1032, 1039 [120 Cal.Rptr.3d 21]; Nelson v. Anderson (1999) 72 Cal.App.4th 111, 136 [84 Cal.Rptr.2d 753].) Silva failed to designate many of See‘s Candy‘s documents submitted
Silva also made numerous factual assertions without providing any record citation. Statements of fact not supported by citations to the rеcord are improper. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246 [19 Cal.Rptr.3d 416]; Bernard v. Hartford Fire Ins. Co. (1991) 226 Cal.App.3d 1203, 1205 [277 Cal.Rptr. 401].)
See‘s Candy contends Silva forfeited her right to appeal by violating these appellate rules. In the interests of justice we have considered the merits of Silva‘s appellate assertions. However, Silva‘s counsel should be mindful of the governing appellate rules in future briefs he files in the California courts.
DISPOSITION
We affirm the summary adjudication on the PAGA claim (third cause of action). We reverse the summary judgment on the first and second causes of action with directions to the trial court to enter a new order (1) granting summary adjudication in See‘s Candy‘s favor on the class and individual claims based on Silva‘s challenges to See‘s Candy‘s rounding and grace-period policies and (2) denying summary adjudication on Silva‘s individual claims alleging See‘s Candy violated Silva‘s rights with respect to rest and meal periods, and business expense reimbursement. Under these orders, the court shall dismiss the class-certified claims and the PAGA claims in their entirety. The parties to bear their own costs on appeal.
Benke, Acting P. J., and Aaron, J. concurred.
Appellant‘s petition for review by the Supreme Court was denied March 22, 2017, S240040.