Filed 12/9/16; pub. order 1/5/17 (see end of opn.)
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
PAMELA SILVA, D068136
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2009-00100692-
CU-OE-CTL)
SEE'S CANDY SHOPS, INC.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Diego County, Randa M.
Trapp, Judge. Reversed in part and affirmed in part.
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.
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
Private Attorney General Act of 2004 (PAGA). The court certified a class on Silva's
claims challenging two of See's Candy's policies pertaining to the calculation of
employee work time: (1) a rounding policy, which calculates timeclock punches to the
nearest tenth of an hour; and (2) a grace-period policy, which permits employees to clock
in 10 minutes before and after a shift, but calculates work time from the employee's
scheduled start/end times.
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 (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.
2
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 Lab. Code, §§ 2699.3, subd. (a)(1), 201, 203, 204, 221, 226, 226.7, 510,
512, 1194, 1199, 2802.)1 On November 17, 2009, the LWDA responded that "after
review," the agency "does not intend to investigate the allegations."
Five days later, Silva filed her first amended complaint (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;
Bus. & Prof. Code, § 17200 et seq.) by failing to: (1) pay for all work performed; (2) pay
overtime compensation; (3) maintain lawful meal and rest period policies; (4) pay for
each meal or rest period that was not provided; (5) reimburse employees for business
related expenses; and (6) provide accurate itemized wage statements. Silva brought these
1 All further statutory references are to the Labor Code, unless otherwise specified.
3
claims on behalf of herself and on behalf of a putative class of current and former See's
Candy workers.
In the third cause of action, Silva alleged a PAGA claim, seeking PAGA statutory
penalties for the alleged Labor Code violations. (§ 2698 et seq.) In this cause of action,
Silva alleged See's Candy "committed the above-referenced and incorporated wage and
hour violations against Plaintiffs and the class members." She also specifically identified
several alleged statutory violations, including the failure to: (1) pay full compensation
due "by improperly 'rounding' the time worked by employees," citing sections 204, 510,
and 1194; (2) provide required rest and meal periods, citing sections 226.7 and 512; (3)
provide statutorily-compliant itemized wage statements, citing section 226; and (4)
indemnify employees for necessary business expenditures or losses, citing section 2802.
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
4
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).
Silva then moved for summary adjudication on See's Candy's rounding-policy
affirmative defense. Silva argued See's Candy's rounding policy violates California law
requiring an employer to fully compensate an employee every two weeks and pay
premium wages for overtime work. The court (Judge Joel Pressman) agreed, granted the
motion, and dismissed See's Candy's rounding defense.
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.
5
Summary Adjudication on PAGA Claim
While this writ proceeding had been 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 § 2699.3, subd.(a)(1)); (2) PAGA does not govern challenges to rounding
and grace-period policies; (3) Silva's position conflicted with the Labor Commissioner's
enforcement policies; and (4) PAGA is unconstitutional.
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."
Silva opposed the motion on numerous grounds. Regarding the rounding/grace-
period policies, Silva argued the LWDA notice was adequate and that she was not
required to more specifically detail the grounds of the claim in the notice, particularly
because these issues pertain to an affirmative defense and because she was unaware of
6
these grounds (alleged improper rounding/grace-period timekeeping policies) when she
first sent the LWDA notice.
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/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 § 2699.3, subd. (a)(1).) On the PAGA claims based on
other alleged Labor Code violations, the court found that although Silva had alleged
various wage and hour violations in her PAGA claim, Silva's interrogatory responses
7
showed she had "abandoned" these claims. The court also noted that Silva had certified a
class only "as to the issues of rounding and grace periods."
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 policies.
In support, See's Candy produced evidence describing its timekeeping policies.
According to this evidence, See's Candy uses a timekeeping software system, known as
Kronos, to record its employee work hours. Employees are required to "punch" into the
system at the beginning and end of their shifts, as well as for lunch breaks. A Kronos
punch shows the actual time (to the minute) when the employee clocked into the system.
During the relevant times, See's Candy calculated an employee's pay based on the Kronos
punch times, subject to adjustment under two policies: (1) a rounding policy; and (2) the
grace-period policy.
Under the rounding policy, in and out punches are rounded (up or down) to the
nearest tenth 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.
8
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/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/or stop time will be exactly the
employee's scheduled time and there will be no need to round down or up to the nearest
tenth 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
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in or out; and (2) the actual punch time to the nearest tenth of an hour, either up or down.
Using these records, Dr. Saad calculated each employee's shift twice, first using the
actual unrounded time stamps, and second using the rounded time stamps. Dr. Saad then
computed the differences in duration between the shifts. Based on these calculations, Dr.
Saad concluded in two separate studies (one in 2010 and one in 2011) that See's Candy's
rounding rule is "unbiased."
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
10
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 employee would be paid from the scheduled
time, not from a rounded time.
See's Candy also presented evidence that it periodically reminded employees they
were prohibited from working if they clocked in during the grace period, and employees
were told that if they worked during this time they must notify the manager who would
manually add time to the employee's Kronos records. See's Candy submitted declarations
from numerous employees who stated they did not work during the grace period;
understood that if they did work they would be compensated for the time; understood that
the decision to use the policy is "always voluntary"; and described the types of personal
activities performed during this period, including using the restroom "to do my makeup
11
or hair," going to the post office to drop off personal mail, "go[ing] across the street to
the [drugstore]," and "play[ing] games on my cell phone."
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 sections 226.7 and 512, and that
See's Candy "failed to reimburse her for expenses she incurred through the performance
of her job duties, in violation of . . . section 2802." Silva also presented her declaration to
support the viability of these individual (nonclass/nonrounding/nongrace-period) claims.
In relevant part, Silva's declaration stated:
"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
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paid for that time. [¶] . . . I do not believe I was ever given a meal
period payment 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/grace-period policies) was without merit because the See's
Candy court had already ruled triable factual issues exist 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/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 grace-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
2 We do not further detail Fountain's opinions because (as explained below) the
court sustained See's Candy's objections to the entire declaration, and Silva has not
challenged this evidentiary ruling on appeal.
13
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 Opportunity Commission in exchange for a monetary payment from See's Candy.
See's Candy argued that in this Settlement Agreement, Silva had agreed not to pursue any
individual claims in her existing superior court action and to assert only her class claims.
See's Candy alternatively argued that if the court concluded that Silva had remaining
viable individual (nonrounding/nongrace-period) claims, the court should permit See's
Candy to file and serve an amended notice requesting summary adjudication on the class
claims as an alternative to a summary judgment.
14
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
granted 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
15
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 pointed out that her
amended complaint contained numerous references to the fact that she was bringing
claims in her individual capacity (particularly the alleged meal and rest break violations
and the failure to reimburse for business expenses). Silva also submitted her counsel's
declaration and her own declaration explaining the settlement of the discrimination
claims, and that the parties did not intend that it would apply to the individual wage and
hour claims asserted in the complaint. She noted that the Settlement Agreement
contained an express exclusion for the "claims" alleged in Silva's class action complaint.
The court denied the motion.
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 (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
16
unable to prove its case by any means." (Weber v. John Crane, Inc. (2006) 143
Cal.App.4th 1433, 1439; see Scheiding v. Dinwiddie Construction Co. (1999) 69
Cal.App.4th 64, 78-81.) 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; see Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768 (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.) 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.)
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 is correct on any
ground asserted in the trial court, regardless of the trial court's stated reason. (Grebing v.
24 Hour Fitness USA, Inc. (2015) 234 Cal.App.4th 631, 637.) In evaluating the record,
we strictly scrutinize the moving party's papers and resolve all doubts in the opposing
party's favor. (Patterson v. Domino's Pizza, LLC (2014) 60 Cal.4th 474, 499-500; Barber
v. Marina Sailing, Inc. (1995) 36 Cal.App.4th 558, 562.) Because a summary judgment
and a summary adjudication are drastic procedures that deny the adversary party a trial,
17
these motions "should be granted with caution." (Colores v. Board of Trustees (2003)
105 Cal.App.4th 1293, 1305.)
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) resulted 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/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, and/or had settled and dismissed those
claims.
18
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 grace-period policies), and
Silva did not meet her burden to show a triable issue of fact on these claims. The court
thus properly granted summary judgment on Silva's claims challenging See's Candy's
timekeeping policies. We conclude, however, the court erred in granting summary
judgment on Silva's individual claims alleged in her first and second causes of action
because See's Candy did not move for summary judgment on these claims.
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/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
19
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/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.
III. Summary Judgment
A. Summary Judgment on Class Claims Challenging Rounding/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 of 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.)
20
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.
907-908.) We also held that "even if [Silva's expert's] report satisfied [her] burden,"
See's Candy presented evidence (primarily Dr. Saad's declarations) creating "a triable
issue of fact" on this issue. (Id. 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 based on the
21
same expert declarations of Dr. Saad. As detailed in the factual section above, Dr. Saad
concluded—based on two statistical studies—that during the class period See's Candy
employees were paid for all of their work under See's Candy's rounding policy and that
See's Candy's rounding policy was mathematically neutral over time. Dr. Saad also
opined that Silva was fully compensated for her work: the 2010 study showed she had a
shortfall of 28 minutes over the term of her employment, which equated to an average
relative time of two seconds per shift (statistically meaningless over the time period
studied) and the 2011 study showed that she was compensated for an aggregate surplus of
1.85 hours.
This evidence met See's Candy's summary judgment burden on Silva's claim
challenging See's Candy's rounding practice. 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
22
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. Fountain'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
["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.)
Silva also contends See's Candy never met its own summary judgment burden
because Dr. Saad improperly presumed employees did not work during the grace periods.
However, as explained below, the assumption was supported because See's Candy
presented evidence showing it had a strict policy against working during the grace period;
employees followed this policy; and if employees worked during the grace period, they
would be compensated for their time. Silva did not present any contrary evidence raising
a triable issue of fact on this issue.
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
23
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.
24
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 determine whether See's Candy's evidence satisfied its
burden to show it was entitled to judgment as a matter of law on the rounding and grace-
period policy issues. (Id. at p. 892.) The issue presented here was not decided in Silva's
favor in See's Candy.
Silva also devotes lengthy portions of her appellate briefs to her argument that the
trial court erred in granting See's Candy'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.) 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
25
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 scheduled 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/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/or 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.
Generally, employees must be paid for the time they are working or are "subject to
the control of" an employer. (See Morillion v. Royal Packing Co. (2000) 22 Cal.4th 575,
582 (Morillion).) In defining "control," Morillion held employees are subject to the
26
control of their employers when they are prevented from using " 'the time effectively for
[their] own purposes.' " (Id. at p. 586.) In Morillion, the high court found agricultural
employees were subject to their employer's control when they were "required" to ride on
an employer's bus to travel to and from the fields. (Id. at p. 579, italics added.) The court
reasoned that during the bus ride plaintiffs could not engage in personal errands of their
choice and were prohibited from "effectively using their travel time for their own
purposes." (Id. at p. 586.) The court also rejected the employer's argument that the
workers were not under its control because they could read or sleep while on the bus,
noting that employees "while working in an office setting" do not lose their entitlement to
be paid merely because they "listen[ ] to music and drink[ ] coffee." (Ibid., italics added.)
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
27
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 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 Corp. v. Superior Court (2012) 53 Cal.4th 1004, stating that if employer
"records show no meal period for a given shift over five hours, a rebuttable presumption
arises that the employee was not relieved of duty and no meal period was provided." (Id.
at p. 1053.)
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
28
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-period 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
29
claims). The court agreed with the first two arguments and thus found that summary
judgment was not precluded.
We agree with Silva that the court erred in this ruling. On our independent review
of Silva's first amended complaint, we find Silva did sufficiently allege individual claims
in the first two causes of action. Silva alleged she was suing in her individual capacity as
well as on behalf of a class, and alleged that See's Candy "failed to possess a compliant
meal or rest period policy"; that she did not receive statutorily-required rest and meal
periods in violation of sections 226.7 and 512; and that See's Candy "failed to reimburse
her for expenses she incurred through the performance of her job duties, in violation of
Labor Code section 2802. . . ." In her UCL cause of action, Silva repeated that she was
bringing the action on her own behalf (as well as on behalf of a class) and alleged she
suffered an injury in fact under Business and Professions Code section 17204.
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; Nelson v. Superior Court (2006) 144 Cal.App.4th 689, 692), 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/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 work while she
30
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, N.A. (2002) 102
Cal.App.4th 308, 316.) 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 Action Exception: This Settlement and the release do not apply to the
claims set forth in Plaintiff's Class Action against See's: Pamela Silva, etc. v. See's
Candy Shops, Inc. etc., et al., San Diego County Superior Court Case No. 37-2009-
00100692-CU-OE-CTL." (First italics added.)
31
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/grace-period) challenges 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/grace-period claims. The record before us
32
consists of more than 1,300 pages and the parties have submitted voluminous appellate
briefs on the rounding/grace-period issues. We have thoroughly reviewed the record and
arguments on the rounding/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/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/grace-period claims
and the individual claims were both asserted in the first and second causes of action, and
that generally a summary adjudication motion "shall be granted only if it completely
disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of
duty." (Code Civ. Proc., § 437c, subd. (f)(1), italics added.) However, a cause of action
for purposes of a summary adjudication motion "means ' "a group of related paragraphs
in the complaint reflecting a separate theory of liability." ' " (Catalano v. Superior Court
(2000) 82 Cal.App.4th 91, 96; see Edward Fineman Co. v. Superior Court (1998) 66
Cal.App.4th 1110, 1117-1118; Lilienthal & Fowler v. Superior Court (1993) 12
Cal.App.4th 1848, 1854-1855.) In this case, Silva's individual claims alleging that she
did not receive required meal and rest breaks/payments and or was not reimbursed for
business expenses were separate theories from her claim that See's Candy employees did
not receive full compensation based on the application of the rounding and grace-period
policies. Accordingly, on the record before us, it is proper to affirm a grant of summary
33
adjudication on the latter claim, while concluding summary adjudication should be
denied on the former (Silva's individual) claims asserted in the first two causes of action.
III. Summary Adjudication on PAGA Cause of Action
In her PAGA cause of action (§ 2698 et seq.), Silva sought entitlement to statutory
penalties based on her theories that: (1) See's Candy's rounding and grace-period policies
are illegal under California law because employees are not fully compensated for their
work; and (2) See's Candy committed other alleged Labor Code violations, including
failing to provide statutorily-required meal periods and reimbursement for necessary
business expenditures. For the reasons explained below, we conclude the court properly
granted summary adjudication on the PAGA cause of action based on each of these
theories.
A. PAGA Claim Challenging Rounding and Grace-Period Policy
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/grace-period challenge (see § 2699.3, subd. (a)(1)); (2) Silva's position
conflicted with the Labor Commissioner's enforcement policies; (3) See's Candy's
rounding and grace-period policies are not covered by PAGA; and (4) PAGA is
unconstitutional.
The court granted the motion primarily on grounds of insufficiency of the LWDA
notice, and rejected See's Candy's remaining arguments. On appeal, Silva contends the
court erred in determining her LDWA notice was insufficient. See's Candy counters that
34
the court's ruling was supported by the applicable law (citing primarily federal district
court decisions), and/or the trial court's ruling can be upheld on any of the other grounds
asserted in its motion. See's Candy alternatively argues that we need not reach the issue
because the court's ruling did not prejudice Silva's rights.
We agree with the latter argument and thus do not reach the LWDA notice issue or
the other PAGA procedural/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/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/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/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 [recovery of civil penalties under PAGA " 'requires proof of a
Labor Code violation' "]; accord Arias v. Superior Court (2009) 46 Cal.4th 969, 987.)
Because the record shows that See's Candy was entitled to judgment as a matter of law on
35
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.)
B. Summary Adjudication on Claims Other Than Rounding/Grace Period
In the second portion of her PAGA cause of action, Silva alleged several
challenges other than the rounding/grace-period challenges. Specifically, Silva alleged
that See's Candy failed to provide employees with required meal and rest periods
(§§ 226.7, 512) and failed to reimburse employees for all necessary expenditures
(§ 2802).
In moving for summary adjudication on this cause of action pertaining to these
claims, See's Candy argued that Silva had stated in a discovery response that the only
ground for her PAGA claim "is rounding and grace periods." In support, See's Candy
proffered Silva's response to a special interrogatory. That interrogatory asked: "STATE
WITH PARTICULARITY the factual basis" for your PAGA claim "as alleged in YOUR
Third Cause of Action . . . ." In response, Silva stated: "[See's Candy's] practice of
providing 'Grace Periods' causes employees to provide work without being fully
compensated in violation of the Labor Code. See's 'Rounding' Policy also fails to
compensated employees for all regular and overtime hours worked." Silva then provided
a detailed factual explanation of these claims, but never identified any facts pertaining to
36
her meal/rest-period and reimbursement claims. Silva verified this response in January
2010.
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; Andrews v. Foster Wheeler LLC
(2006) 138 Cal.App.4th 96, 102-107 (Andrews); Union Bank v. Superior Court (1995) 31
Cal.App.4th 573, 578.) 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/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.
37
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.
In attempting to meet this burden, Silva relied on her counsel's declaration and
2010 correspondence between her counsel and See's Candy's counsel in which her
counsel indicated that the grace-period and rounding claims were not the only claims
being asserted in the complaint. This evidence did not meet Silva's burden to show a
triable issue of fact. The fact that defense counsel was on notice in 2010 that Silva's
counsel was intending to assert theories in addition to rounding/grace-period claims as
support for Silva's PAGA claim, does not mean that Silva had any facts to support these
claims four years later in 2014 when she opposed the summary adjudication motion. In
opposing the summary adjudication motion, Silva did not come forward with any
admissible evidence supporting her PAGA claim on the nonrounding/nongrace-period
issues. Accordingly, the court properly granted summary adjudication on the PAGA
cause of action in its entirety.
IV. 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.) To satisfy this burden, the appellant must comply with rules that ensure both
38
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. (Cal.
Rules of Court, rule 8.204(a)(2)(C).) In her appellate briefs, Silva made no effort to
summarize all of the evidence presented in the summary judgment proceeding, and
frequently ignored the evidence presented by See's Candy. A summary judgment motion
triggers a procedure in which the parties pierce the pleadings to determine whether there
are disputed facts and thus whether a trial is necessary to resolve the dispute. (Jordan v.
City of Sacramento (2007) 148 Cal.App.4th 1487, 1492.) Thus, when a summary
judgment is challenged, a reviewing court must examine the facts presented by the parties
to determine whether summary judgment or summary adjudication was warranted. By
failing to describe all of the evidence proffered in the proceedings, Silva did not satisfy
her appellate burden.
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; Nelson v. Anderson (1999) 72
Cal.App.4th 111, 136.) Silva failed to designate many of See's Candy's documents
submitted in support of its summary adjudication and summary judgment motions. The
fact that See's Candy did later produce these records in a Respondent's Appendix does not
relieve Silva of the obligation to have provided a complete record.
39
Silva also made numerous factual assertions without providing any record citation.
Statements of fact not supported by citations to the record are improper. (Nwosu v. Uba
(2004) 122 Cal.App.4th 1229, 1246; Bernard v. Hartford Fire Ins. Co. (1991) 226
Cal.App.3d 1203, 1205.)
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.
40
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.
HALLER, J.
WE CONCUR:
BENKE, Acting P. J.
AARON, J.
41
Filed 1/5/17
COURT OF APPEAL - STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION ONE
PAMELA SILVA,
Plaintiff and Appellant,
v.
SEE'S CANDY SHOPS, INC.,
Defendant and Respondent.
D068136
San Diego County No. 37-2009-00100692-CU-OE-CTL
THE COURT:
The opinion in this case filed December 9, 2016, was not certified for publication.
It appearing the opinion meets the standards for publication specified in California Rules
of Court, rule 8.1105(c), the requests pursuant to California Rules of Court, rule
8.1120(a), for publication are GRANTED.
IT IS HEREBY CERTIFIED that the opinion meets the standards for publication
specified in California Rules of Court, rule 8.1105(c); and
ORDERED that the words "Not to Be Published in the Official Reports" appearing
on page 1 of said opinion be deleted and the opinion herein be published in the Official
Reports.
Benke
_____________________________
Acting Presiding Justice
cc: All Parties