Catalan v. Arakelian Enterprises CA2/8

Filed 7/2/21 Catalan v. Arakelian Enterprises CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

FERNANDO O. CATALAN, B297858, B302331

Plaintiff and Appellant,
(Los Angeles County
v. Super. Ct. No. BC562181)

ARAKELIAN ENTERPRISES,
INC.,

Defendant and Respondent.

APPEALS from a judgment and an order of the Superior
Court of Los Angeles County. David S. Cunningham III, Judge.
Judgment (B297858) and postjudgment order (B302331)
affirmed.
Mostafavi Law Group, Amir Mostafavi; Lichten & Liss-
Riordan and Shannon Liss-Riordan for Plaintiff and Appellant.
Epstein Becker & Green, Adam C. Abrahms, Susan
Graham and Story E. Cunningham for Defendant and
Respondent.
__________________________
 SUMMARY
Plaintiff Fernando Catalan sued All Service Disposal, Inc.
(All Service) and Arakelian Enterprises, Inc., doing business as
Athens Services (Athens), alleging wage and hour violations as
well as other causes of action in connection with his employment
as a truck driver. He contended the two companies were his joint
employers, and both were liable for failure to pay overtime,
willful failure to pay wages to an employee who is discharged,
knowing and intentional failure to furnish itemized wage
statements, failure to provide meal breaks, and civil penalties
under the Private Attorneys General Act (PAGA, Lab. Code,
§ 2698 et seq.), among other claims. Further statutory references
are to the Labor Code unless otherwise specified.
His claims were tried to the court. The trial court found
the two defendants were joint employers, and that ruling is not
challenged on appeal.
The court then found plaintiff failed to prove his overtime
and meal break claims. The court found All Service, which
directly employed plaintiff and paid his wages, stopped providing
itemized wage statements in 2014, and was liable to plaintiff for
penalties for failure to provide 40 wage statements. All Service
also failed to timely pay the wages due on plaintiff’s termination,
and was liable for 18 days of waiting time penalties.
However, the court found Athens had no knowledge of or
control over how All Service handled its paychecks to plaintiff, or
when All Service paid plaintiff, and did not know when All
Service terminated plaintiff’s employment, and so was not liable
for the wage statement violations or for the waiting time
penalties. The court declined to award penalties for the Labor

2
Code violations under PAGA, and later awarded Athens its costs
as the prevailing party.
Plaintiff challenges the trial court’s rulings on his overtime
and meal break claims. He also contends Athens is necessarily
liable, by virtue of its status as his joint employer, for the wage
statement violations and waiting time penalties. Plaintiff also
contends the court erred in declining to award civil penalties
under PAGA and erred in awarding Athens its costs as the
prevailing party.
This is an unusual wage and hour case because the trial
court found plaintiff’s testimony lacked credibility and he brought
his overtime claim in bad faith. We are in no position to second-
guess the trial court’s credibility calls and, in any event, we agree
with the trial court. We find substantial evidence supports the
trial court’s judgment that plaintiff’s testimony should be
disregarded and affirm the judgment and the award of costs.
FACTS
1. Background
Defendant Athens is a waste collection and recycling
company. Among other things, it operates a materials recovery
facility in City of Industry. A part of Athens’s business involved
hauling trash from its facility to various landfills. Athens
employed its own truck drivers (called “transfer drivers”) to do
that work, but also contracted with several outside contractors
whose drivers performed the same work.
One of these outside contractors was defendant All Service,
a company owned by Robert Sarkissian. Athens entered into an
“independent sub-hauler agreement” with All Service on
November 1, 2010. All Service employed plaintiff as a truck
driver hauling for Athens until his discharge in August 2014. All

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Service provided the trailer trucks that plaintiff drove to
transport waste materials from Athens’s facility to landfills
Athens designated.
All Service paid plaintiff’s wages, including overtime, based
on daily log sheets plaintiff filled out and turned in to All Service.
Athens was involved in plaintiff’s interview process when he was
hired, All Service consulted Athens to determine plaintiff’s hourly
wage, and Athens determined the landfills to which he was
assigned. The trial court concluded from these and other facts
that Athens “exercised control over Plaintiff’s wages, hours, and
working conditions.”
All Service terminated plaintiff’s employment in August
2014, after he did not show up for work and Mr. Sarkissian could
not get in touch with him.
2. Procedures and Responsibilities
During his employment, plaintiff usually hauled three
loads of trash each day from the Athens facility to landfill sites.
Plaintiff usually worked six days a week. His workday began and
ended at the All Service lot, where his truck was parked.
Plaintiff was responsible for recording his time on daily log
sheets provided by Athens. At the top, these log sheets had
spaces to fill in the date, truck and trailer numbers, a “time
clock” (“in” and “out”), and lunch and break times.
In addition, plaintiff was required to record information on
the log sheet about each of his trips to the landfill. This included
the landfill ticket number, the material and weight hauled, and
six time entries: the time he started and finished loading the
truck at the Athens facility; the time he started and finished
unloading at the landfill; and the time he departed the landfill
and arrived back at the Athens facility. Athens used this

4
information internally for costing purposes, to verify landfill
billing, and to compare the efficiency of its own transfer drivers
with that of the outside contractors’ drivers.
The log sheet form was in triplicate for outside contractor
drivers (but not for Athens’s own transfer drivers), because the
contractors’ drivers wanted copies. Plaintiff (and other outside
contractors’ drivers) would put one copy of the form in a mailbox
at the Athens facility, and plaintiff would give the other two to
All Service. All Service used these copies as time sheets for its
drivers. (The parties variously refer to them as log sheets and
time sheets.)
Athens did not report the log sheet information to anyone
or otherwise use it to calculate compensation for plaintiff; it was
“strictly for costing what our bills were from landfills and what it
cost us and how long it took us.” Athens did not keep track of
plaintiff’s time for payroll in any way. Athens used an electronic
timekeeping system for its own employees, who had to clock in
and out at the facility on that electronic system.
As already mentioned, All Service paid plaintiff’s wages,
based on the time he recorded “in” and “out” in the time clock
space at the top of his daily log sheets. Plaintiff also wrote the
total number of hours he worked on the back of the log sheets. It
was undisputed that All Service paid plaintiff on the honor
system, and All Service did not question the accuracy of plaintiff’s
daily log sheets. Plaintiff testified it was “all about [his]
voluntarily reporting [his] own time.” Plaintiff (and All Service’s
other drivers) would turn in their log sheets to Mr. Sarkissian, or
leave them on his car windshield if he was not at the All Service
lot. Mr. Sarkissian “took [plaintiff’s] word for” the total hours
plaintiff reported on the log sheets. On a weekly basis,

5
Mr. Sarkissian sent emails to an accounting firm, the DuBois
firm, that provided payroll tax services for All Service, noting the
number of hours plaintiff reported that he worked on each day of
that week.
The DuBois firm then calculated the net amount of wages
due, prepared an itemized wage statement showing regular and
overtime hours and withholding deductions, and sent the wage
statement to Mr. Sarkissian, who then wrote a check to plaintiff
for the amount due. Mr. Sarkissian only “[o]ccasionally” gave the
wage statements to plaintiff with his check, “[w]hen he requested
them.” The DuBois firm also prepared plaintiff’s W-2 tax forms
for All Service. All Service paid plaintiff for all the time he
reported, including substantial amounts of overtime.
At the beginning of 2014, All Service stopped the payroll
tax services provided by the DuBois firm, and stopped providing
wage statements to plaintiff. Mr. Sarkissian calculated plaintiff’s
wages himself, in the same manner as before, using the hours
plaintiff noted on the log sheets. He withheld federal taxes “by
going off previous [wage] statements.”
Mr. Sarkissian terminated plaintiff’s employment on
August 26, 2014. He did not consult anyone from Athens when
he decided to terminate plaintiff. Plaintiff received his final
paycheck on September 20, 2014.
3. The Lawsuit and Bench Trial
Plaintiff filed this lawsuit in October 2014, alleging
17 causes of action against All Service and Athens. Athens
obtained summary adjudication of 10 of the claims. In April and
May 2018, a bench trial was held on the claims that remained
against both parties. This was to be followed by a jury trial

6
against All Service on discrimination, wrongful termination and
related claims, but All Service defaulted.
At the bench trial, plaintiff sought to establish claims for
failure to pay overtime (§§ 510 & 1194); failure to provide
accurate wage statements (§ 226); failure to pay wages timely
upon termination (§ 203); conversion; unfair business practices
(Bus. & Prof. Code, § 17200 et seq.), including failure to provide
meal breaks; and violations of other Labor Code sections and
regulations that are not at issue on appeal.
Plaintiff’s principal claim was that for the four years of his
employment, defendants failed to pay him for one and a half to
two hours he worked each day, time that he did not record on his
log sheets.
Plaintiff testified that, after he dumped his last load of the
day at the landfill, he was required to, and did, drive back to the
Athens facility to drop off his log sheet. He recorded his time
“out” as the time he arrived at the Athens facility, and he did not
record the ensuing time he spent driving back to the All Service
lot to park and inspect his vehicle, which took him one and a half
to two hours each day. Plaintiff testified he was told his daily log
sheet “has to be in the box at the end of the day,” thus requiring
him to drive to the Athens facility before returning to the All
Service lot.
This testimony was inconsistent with plaintiff’s deposition
testimony. At his deposition, plaintiff testified that after his last
load, he would drive directly to the All Service lot, and that he
would turn in his log sheets the following day.
This testimony was also contradicted by the testimony of
other witnesses. Diane Olin, who had been the office manager of
the Athens facility at the relevant time, testified that Athens

7
never required any contractor driver to submit the log sheet “on
the same day after they were done with their last load.”
Mr. Sarkissian testified he never instructed plaintiff that he had
to turn in his log sheet to Athens at the end of the day, and that
plaintiff typically turned it in “the first trip of the next day.”
Mr. Sarkissian also testified that plaintiff was instructed
that the in-and-out times in the time clock square were the time
he arrived for work at the All Service lot, and the time he was
done working and left the All Service lot after dropping off his
truck.
There was further evidence in the form of an email from
Ms. Olin to All Service, reporting that All Service drivers were
“not always turning in their paperwork on time”; the email (on
Wednesday, February 20, 2013) stated that on “Monday I
received a log sheet from [plaintiff] for Feb 9.”
At his deposition, plaintiff also testified “I don’t know” and
“I don’t recall” when asked if he “ever complain[ed] to
Mr. Sarkissian about not being paid the wages you were owed.”
He admitted at trial that “nothing prohibited [him] from writing
a different time [than the time he claimed he got back to the
Athens facility] in the ultimate ‘out’ column.” He acknowledged
that he was paid for the overtime hours he reported.
Plaintiff also sought to prove that, every day of his four-
year employment, defendants failed to provide him with a 30-
minute meal period. Plaintiff testified that he never took a meal
break during the four years of his employment, and that he
would bring lunch and eat in the truck as he was driving. He
also testified there was no time to take rest breaks “because if I
did, I would miss the last dump.”

8
 Mr. Sarkissian testified that he told plaintiff at the
beginning of his employment he was free to take a lunch break
“whenever he chose to,” and Mr. Sarkissian’s understanding was
that plaintiff did so every day. “When he felt fit to take a break
or to take lunch, it was his choice.” Plaintiff never told
Mr. Sarkissian that he did not take a lunch break.
Mr. Sarkissian paid plaintiff based on the log sheets he
submitted “regardless of whether he took a half hour out of his
day to take a lunch break.”
Andy Lucero was a supervisor at the Athens facility who
was responsible for safety and productivity, and who supervised
the transfer drivers employed by Athens. He testified the Athens
drivers were expected to take a 30-minute lunch break, and that
there were lunch trucks at the landfills and at the Athens
facility, as well as fast food restaurants along the route.
Mr. Lucero said the Athens drivers were required to take their
meal periods and encouraged to take rest breaks. He directed
Athens drivers to record their meal periods on their daily log
sheets, and reviewed the log sheets to determine if they did so.
He testified the typical Athens driver would deliver an average of
three loads a day, and most Athens drivers have the opportunity
to take their meal periods.
Mr. Lucero never looked at plaintiff’s daily log sheets,
which were never delivered to him, and plaintiff never told
Mr. Lucero that he was not getting meal periods.
Mr. Lucero testified the Athens facility loaded transfer
drivers beginning at “5:30 a.m. and the latest would have been
7:00 p.m.,” and plaintiff could pick up loads at any time between
those hours. Mr. Lucero did not care when plaintiff started work.
Mr. Lucero was not familiar with plaintiff’s work schedule for All

9
Service, and did not keep track of his arrival time. He had no
review authority over plaintiff’s daily log sheets.
4. The Trial Court’s Decision
The court received briefing after the trial ended in May
2018 and heard closing arguments in July 2018. The court issued
a minute order summarizing its oral tentative statement of
decision. After observing that the entire basis for plaintiff’s
overtime claim was his own testimony that he was not paid for
the time spent driving back to the All Service lot from the Athens
facility at the end of the day, the court stated that “plaintiff’s
claims lack credibility.” The court further stated that “[p]laintiff
lacks credibility as a trial witness and his testimony was
impeached ma[n]y times during the trial.”
At the hearing, after noting Ms. Olin’s testimony and
plaintiff’s own contradictory testimony, the court stated that
“when I look further at the fact that indeed All Service[] paid
[plaintiff] for overtime that he claimed, for him to now say, yeah,
but you didn’t pay me enough, and he never claimed it I think is
just bad faith. That’s where the court is.”
In February 2019, the court issued its amended final
statement of decision. In rejecting plaintiff’s overtime claim, the
court stated that “[n]o evidence was submitted to establish that
either All Service or Athens knew or should have known that
Plaintiff was incurring additional time at the end of his day, as
he claims . . . . [W]hile Plaintiff argued that he was required to
return to Athens’ facility to submit his time sheets every day,
Plaintiff’s trial testimony was impeached and contradicted by his
own testimony and by testimony from Defendants’ former
employee Diane Olin that he would turn his sheets in on the next
day or irregularly.”

10
 Plaintiff’s conversion claim was premised on his claim for
unpaid overtime and failed along with it. The court also ruled
against plaintiff on his claim that he was not paid on regularly
established paydays (§§ 204, 210), finding plaintiff’s testimony
regarding late wages was not credible. This ruling is not
challenged on appeal.
The court also rejected as not credible plaintiff’s testimony
that he was denied meal and rest breaks. The court found
plaintiff’s testimony concerning meal periods was contradicted by
evidence showing he was informed of his right to take meal
periods and his log sheets included an entry space for reporting
meal periods. “Plaintiff did not testify or present any evidence
that he informed Sarkissian or any individual that he did not
have time to take meal or rest breaks or that he was ever
discouraged from taking meal or rest breaks.”
The court found plaintiff was entitled to penalties for All
Service’s failure to provide wage statements from the beginning
of 2014 (40 wage statements for total penalties of $4,000).
Likewise, the evidence showed All Service failed to pay plaintiff
the wages that were due on termination. Plaintiff was thus
entitled to statutory waiting time penalties, “calculated at
$187.00 per day for the eighteen work days between Plaintiff’s
termination on August 26, 2014 and September 20, 2014,” when
he received his final paycheck, for a total of $3,366.
The court found Athens was not liable for the wage
statement and waiting time penalties. The court found Athens
had no knowledge or control over when All Service paid plaintiff,
and so did not willfully fail to timely pay plaintiff. The court
found the wage statement violations and the failure to pay
plaintiff immediately on discharge “were not willful, and the

11
Court exercises its discretion not to award additional penalties
under the PAGA.”
In March 2019, Athens filed a motion seeking entry of a
final judgment in its favor, since Athens prevailed on all claims
plaintiff alleged against it. The court granted the motion and
entered judgment for Athens on May 9, 2019. According to the
parties, in December 2019, All Service failed to appear for trial on
the remaining claims plaintiff had asserted against it, and
plaintiff obtained a default judgment against All Service.
Plaintiff filed a timely notice of appeal from the judgment
for Athens. Athens filed a memorandum of costs, and the trial
court awarded Athens costs of $24,149.23. Plaintiff filed a timely
appeal from that order as well.
We ordered the appeals consolidated for purposes of oral
argument and decision.
DISCUSSION
1. The Overtime Claim
Plaintiff contends the trial court erred in finding he failed
to prove his overtime claim. He says the court improperly shifted
the burden of proof to him “to keep accurate records when that is
defendants’ statutory duty.” Plaintiff’s analysis is mistaken. The
court did not require plaintiff to keep accurate records. The court
simply found plaintiff did not prove he performed any work for
which he was not compensated.
“[T]he employee has the burden of proving that he
performed work for which he was not compensated.” (Hernandez
v. Mendoza (1988) 199 Cal.App.3d 721, 727 (Hernandez).)
Hernandez explains: “ ‘[A]n employee has carried out his burden
if he proves that he has in fact performed work for which he was
improperly compensated and if he produces sufficient evidence to

12
show the amount and extent of that work as a matter of just and
reasonable inference. The burden then shifts to the employer to
come forward with evidence of the precise amount of work
performed or with evidence to negative the reasonableness of the
inference to be drawn from the employee’s evidence. If the
employer fails to produce such evidence, the court may then
award damages to the employee, even though the result be only
approximate.’ ” (Ibid., quoting Anderson v. Mt. Clemens Pottery
Co. (1946) 328 U.S. 680, 687–688.)
Certainly, the employer has a regulatory duty to keep
accurate time records, and if an employee proves he was not
compensated for work performed, the consequences of the
employer having no records to dispute the employee’s claim fall
on the employer, not the employee. But that is not what
happened here. The evidence showed plaintiff was paid for all
the time he reported, including substantial amounts of overtime.
Wage statements from 2010 through 2013 show this. Here,
plaintiff did not prove he performed overtime work for which he
was not compensated. Indeed, at his deposition he testified “that
[he] didn’t have any reason to believe or dispute that [he was] not
paid overtime correctly.”
We have described the state of the evidence in the fact
section, ante, and need not repeat it all here. Plaintiff reported
his work hours, time in and time out. He was paid for the
overtime hours he reported. He was unable to say when he
discovered he was not being paid for all the time he worked. He
contended he drove back to the Athens facility to turn in his log
sheet, but the trial court believed the evidence showing he did not
turn in his log sheets until the following day.

13
 Plaintiff testified at trial that he talked to Mr. Sarkissian
about payment for his “commuting period back to [the All Service
lot],” and did so “probably in the whole time I worked for him,
once or twice,” and “never got an answer from it, so I just
accepted it.” But at his deposition, he testified he did not recall
ever complaining to Mr. Sarkissian about not being paid the
wages he was owed. (Mr. Sarkissian also testified plaintiff was
instructed that the in-and-out times were when he arrived at and
when he left the All Service lot.) Plaintiff told no one else he was
working overtime that he did not report and for which he was not
paid. (Cf. Brinker Restaurant Corp. v. Superior Court (2012)
53 Cal.4th 1004, 1051 (Brinker) [“[T]hat employees are clocked
out creates a presumption they are doing no work, a presumption
[the plaintiff] and the putative class members have the burden to
rebut. As all parties agree, liability is contingent on proof [the
employer] knew or should have known off-the-clock work was
occurring”].)
Plaintiff’s opening brief on appeal is as unreliable as his
trial testimony. In his brief, plaintiff recites facts he describes as
“uncontroverted” with record citations that do not support them.
He does not describe the evidence in support of the trial court
judgment. He refers to the court’s adverse credibility finding—
only concerning his testimony that he dropped off his daily log
sheet at Athens every day—in a footnote. And then he says it
does not matter when he dropped off his daily log sheet, because
“Athens directed Plaintiff to list the time that he dropped off his
last load as the time that his work ended.” His citations to the
record do not support that proposition either. The only testimony
that does support it was his own (“I was told to put my exit time

14
when I was at Athens”), and the trial court did not believe that,
for very good reasons.
Plaintiff insists that “Athens and All Service were
necessarily aware that Plaintiff’s log sheets did not reflect his
drive back to All Service, because the end of work time that
Plaintiff listed in his daily log typically corresponded with the
time that Athens’ employees authorized Plaintiff’s entry into the
Athens’ facility upon completing his last load, to drop off his time
log and landfill ticket, not when he left the All Service parking lot
after inspection and parking.” (Plaintiff’s italics.) Again,
plaintiff cites to evidence that has nothing to do with this
assertion, and we can find no support for it in the record.1
In short, plaintiff did not prove that he drove back to the
Athens facility to turn in his log sheet after he dumped his last
load at the landfill. Instead, the evidence supported a contrary
inference—that, as he testified at his deposition, he drove from
the landfill to All Service for parking and inspection, after which
he clocked out.
Plaintiff asserts the trial court held his overtime claim was
defeated because of his “inability to establish a precise number of
overtime hours he worked.” As we have seen, that is not what
the trial court did. “To prove the amount of hours of
uncompensated work, Mt. Clemens Pottery and Hernandez permit
imprecise evidence by the employee.” (Furry v. East Bay

1 Plaintiff cites one page of transcript, with plaintiff
testifying about a spider bite, and a trial exhibit of emails from
Diane Olin to All Service, most of them to the effect that plaintiff
was not turning in his log sheets on time or otherwise not
complying with Athens’s regulations.

15
Publishing, LLC (2018) 30 Cal.App.5th 1072, 1080 (Furry); ibid.
[“the underlying violation (and hence, the fact of damage) was not
in dispute”].) This is not such a case.
In sum, there is no merit to the claim the trial court
improperly applied the burden of proof or otherwise erred in
rejecting plaintiff’s overtime claim.
2. The Meal Period Claim
As mentioned earlier, the court concluded, “[b]ased on the
evidence in the record,” that plaintiff failed to prove he was
denied meal and rest breaks. Plaintiff challenges the trial court’s
conclusion with two arguments. Plaintiff’s principal argument is
that the evidence showed he “had no choice but to eat his lunch in
his truck while he drove,” because otherwise he would have
missed the third load of the day, leading to a loss of pay. He
claims his testimony on the point is uncontradicted. That is
plainly not correct.
We have described the evidence in the fact section, ante at
pages 8 through 10. In brief, the drivers directly employed by
Athens and supervised by Mr. Lucero were required to take their
meal periods; the typical Athens driver would deliver an average
of three loads a day; and most Athens drivers had the
opportunity to take their meal periods. Plaintiff was free to
decide for himself when to pick up loads any time during Athens’s
loading hours, between 5:30 a.m. and 7:00 p.m. There were lunch
trucks at the landfills and at the Athens facility, as well as fast
food restaurants along the route.
This evidence severely undercuts plaintiff’s claim that he
could not transport three loads a day without missing his meal
break; he had to eat in the truck as he drove; and he never once
got a meal break in his four years of employment by All Service.

16
Given plaintiff’s overall lack of credibility (the trial court stated
after closing arguments that “[p]laintiff lacks credibility as a trial
witness and his testimony was impeached ma[n]y times during
the trial”), we find no reason to question the trial court’s finding
that plaintiff did not prove he was denied meal and rest breaks.
Plaintiff’s second argument is that the employer is obliged
to record meal periods, and if an employer’s records do not show
meal periods, a rebuttable presumption arises that no meal
period was provided. This principle was settled in Donohue v.
AMN Services, LLC (2021) 11 Cal.5th 58, 74 (Donohue), a case
decided after the trial court’s ruling in this case. But the
Donohue principle does not assist plaintiff’s case because
defendant here did rebut that presumption.
Donohue tells us the burden of proof is on the employer to
show it relieved the employee of duty, but the employee waived
the opportunity to take a work-free break. (Donohue, supra,
11 Cal.5th at p. 74.) Donohue explains that if employer records
“are incomplete or inaccurate—for example, the records do not
clearly indicate whether the employee chose to work during meal
periods despite bona fide relief from duty—then the employer can
offer evidence to rebut the presumption.” (Id. at p. 76.)
Donohue “reiterate[d] the rules set forth in Brinker.”
(Donohue, supra, 11 Cal.5th at p. 78.) Those rules include that
“[a]n employer is liable only if it does not provide an employee
with the opportunity to take a compliant meal period. The
employer is not liable if the employee chooses to take a short or
delayed meal period or no meal period at all. The employer is not
required to police meal periods to make sure no work is
performed.” (Ibid.)

17
 Here, plaintiff’s daily log sheets (38 daily log sheets from
2014) showed plaintiff did not fill in the space on his log sheets
for recording meal periods. (These are the only employer daily
time records in evidence. All Service stored its drivers’ log sheets
at the All Service lot in a cargo container, and the rest of the
records were made illegible because of water damage.)
We have already recounted the evidence showing that
plaintiff had time, like most of the other drivers employed by
Athens, to make three loads and also take meal breaks. It may
have been true that sometimes, as was sometimes the case with
Athens’s transfer drivers, plaintiff missed a meal break. But
plaintiff testified he never got a meal break; according to plaintiff,
every day for four years, he had to eat lunch as he drove his
truck. This defies credulity.
Plaintiff did not have a 9:00 to 5:00 job with a fixed time
slot for his lunch break. Both Athens and All Service gave
plaintiff wide latitude in deciding how he spent his workday, and
All Service paid all regular and overtime hours plaintiff reported
without question. Mr. Sarkissian testified he told plaintiff when
he was first employed that he was free to take a lunch break
“[w]henever he chose to,” and plaintiff does not dispute that. (See
Brinker, supra, 53 Cal.4th at p. 1040 [an employer’s knowledge of
employees working through meal periods “will not alone subject
the employer to liability for premium pay; employees cannot
manipulate the flexibility granted them by employers to use their
breaks as they see fit to generate such liability”].)
Substantial evidence supported the trial court’s implied
finding that plaintiff is trying to manipulate and exploit the
flexibility his employers gave him to take his breaks when and as
he saw fit.

18
3. The Wage Statement and Failure to Pay
on Termination Claims
“An employer, . . . at the time of each payment of wages,
shall furnish to his or her employee . . . an accurate itemized
statement in writing” showing specified information. (§ 226,
subd. (a).) An employee who did not receive a wage statement “as
a result of a knowing and intentional failure by an employer to
comply” with these requirements is entitled to recover specified
penalties. (§ 226, subd. (e)(1), (e)(2)(A).) Likewise, “[i]f an
employer discharges an employee,” wages earned and unpaid are
due and payable immediately (§ 201, subd. (a)), and “[i]f an
employer willfully fails to pay . . . in accordance with” section 201,
the wages continue as a penalty for up to 30 days (§ 203,
subd. (a)).
At trial, Mr. Sarkissian admitted that All Service did not
provide wage statements to plaintiff during 2014. The trial court
accordingly found plaintiff was entitled to penalties totaling
$4,000 from All Service. The court also found Mr. Sarkissian did
not give plaintiff his final check until more than two weeks after
termination, and this established All Service failed to pay
plaintiff timely on termination, entitling plaintiff to $3,366 in
penalties.
The court found joint employer Athens was not liable for
the penalties attached to these claims. As to the wage
statements, this was because Athens “did not have any
knowledge, control or input as to how All Service[] handled its
paychecks to its employees or what All Service included on those
paychecks,” and so “did not willfully and intentionally violate
Labor Code, section 226.” As to the failure to pay on termination,
the court stated the evidence demonstrated Athens “did not have

19
any knowledge or control over when Defendant All Service paid
Plaintiff,” and therefore found Athens “did not willfully fail to
timely pay Plaintiff.”
Plaintiff contends the trial court erred because sections 226
and 203 “impose liability on all joint employers solely by virtue of
their employer status.” We are not persuaded this is so under the
circumstances reflected in this record. Some joint employment
conditions justify liability of both employers, but that is not the
case here.
The evidence was undisputed that Athens had no control
“or even any input” on All Service’s handling of its employee
paychecks and wage statements, and that Athens did not
discharge plaintiff and had no reason to know if or when plaintiff
was terminated by All Service. The penalties that attach to All
Service’s violations apply to “a knowing and intentional failure”
to furnish wage statements (§ 226, subd. (e)(1)), and to “willfully
fail[ing] to pay” wages immediately on discharge (§§ 203 & 201,
subd. (a)). Given the facts the trial court found, and the statutory
language requiring “knowing and intentional” or “willful[]”
failures, we cannot conclude that Athens should be liable.
“Willful” means that “ ‘the employer intentionally failed or
refused to perform an act which was required to be done.’ ” (Kao
v. Holiday (2017) 12 Cal.App.5th 947, 963, italics omitted.)
Similarly, “[t]o establish a ‘knowing and intentional’ violation of
Labor Code section 226, subdivision (a), an employee must
demonstrate that the employer was ‘ “aware of the factual
predicate underlying the violation[s].” ’ ” (Furry, supra,
30 Cal.App.5th at p. 1085.) Awareness of the factual predicate is
missing here.

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 We emphasize this is not a case where the employee has
not been paid all wages due for his work. Where the issue is
unpaid wages, entities found to be joint employers are liable for
the payment of wages. This was established in Martinez v.
Combs (2010) 49 Cal.4th 35 (Martinez).
In Martinez, the court examined “the concept of joint
employment” (Martinez, supra, 49 Cal.4th at p. 50) and how to
“define the employment relationship, and thus identify the
persons who may be liable as employers, in actions under
section 1194” (id. at p. 51). (Section 1194 entitles the employee to
recover the unpaid balance of minimum wage and overtime
compensation.) Martinez held that in actions under section 1194,
IWC wage orders “do generally define the employment
relationship, and thus who may be liable.” (Martinez, at p. 52.)
To employ means “(a) to exercise control over the wages, hours or
working conditions, or (b) to suffer or permit to work, or (c) to
engage, thereby creating a common law employment
relationship.” (Id. at p. 64.) These definitions “do apply in
actions under section 1194” (id. at p. 66), and “impose[] liability
on multiple entities who divide among themselves control over
those different aspects of the employment relationship” (id. at
p. 67).
As the court stated in Noe v. Superior Court (2015)
237 Cal.App.4th 316 (Noe), “[i]mplicit in the [Martinez] analysis
is a recognition that section 1194 permits an employee with
multiple employers to seek recovery of unpaid wages from any of
them.” (Id. at p. 333.) This is not based on principles of agency
or joint and several liability, but rather such liability “attaches as
the result of section 1194, which imposes a duty on every
employer to ensure its employees receive minimum wage and

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overtime compensation.” (Ibid.) Noe thus rejected the broader
claim “that joint employers are normally held jointly liable for
Labor Code violation committed by a coemployer,” finding no
language in Martinez supporting that theory. (Noe, at p. 332.)
Noe involved the Labor Code’s prohibition on willful
misclassification of an employee as an independent contractor
(§ 226.8, subd. (a)(1)). Section 226.8 defines “[w]illful
misclassification” as avoiding employee status for an individual
by “voluntarily and knowingly misclassifying” that individual as
an independent contractor. (§ 226.8, subd. (i)(4).) Noe held that
liability “is not limited to employers who make the
misclassification decision, but also extends to any employer who
is aware that a coemployer has willfully misclassified their joint
employees and fails to remedy the misclassification.” (Noe,
supra, 237 Cal.App.4th at pp. 319–320.)
Thus, Noe applied the principle that “whether an employer
is liable under the Labor Code depends on the duties imposed
under the particular statute at issue.” (Noe, supra,
237 Cal.App.4th at p. 334.) Noe stated: “Applying those
principles here, if plaintiffs prove defendants were their joint
employers, those defendants may be held liable under section
1194 for any unpaid minimum wage and overtime compensation
resulting from plaintiffs’ misclassification. [Citation.] To obtain
civil penalties under section 226.8, however, plaintiffs must
demonstrate not only that defendants were joint employers, but
also that . . . they each engaged in the act of voluntarily and
knowingly misclassifying plaintiffs.” (Ibid. [rejecting the
“suggestion that defendants may be subject to section 226.8
penalties based solely on their status as joint employers of
workers who were misclassified by a coemployer”]; see also

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Serrano v. Aerotek, Inc. (2018) 21 Cal.App.5th 773, 784
[“Noe made clear that whether an employer is liable for a
coemployer’s violations depends on the scope of the employer’s
own duty under the relevant statutes, not ‘principles of agency or
joint and several liability’ ”], disapproved on another ground in
Donohue, supra, 11 Cal.5th at p. 77.)
The same principle applies in this case. “Any employer” is
subject to civil penalties “for each underpaid employee” when the
employer violates Labor Code provisions or wage orders
regulating hours and days of work. (§ 558, subd. (a).) But the
statutory penalties for failing to provide wage statements and
failing to pay immediately on termination apply to “knowing and
intentional” or “willful[]” failures, respectively. (§§ 226,
subd. (e)(1) & 203, subd. (a).) Under the facts of this case,
without knowledge of or reason to know that All Service had
stopped providing wage statements to its employees, or that it
had terminated plaintiff without immediately paying him,
Athens cannot be liable for All Service’s violations.
Plaintiff insists otherwise, but in support cites only one
federal district court decision, which is not binding, and two
superior court decisions, which are not citable under California
Rules of Court, rule 8.115. In Liu v. Win Woo Trading,
LLC (N.D.Cal., June 13, 2016, No. 14-cv-02639-KAW) 2016
U.S.Dist.Lexis 76776, page *15, the court denied summary
judgment on a section 226 wage statement claim. The court said
only that the defendants conceded they could produce no legal
authority to support the proposition that joint employers should
not be held jointly liable for the section 226 violation. There is no
legal analysis of the point, and accordingly Liu has no persuasive
or precedential value.

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 In short, under the circumstances here, we see no basis for
concluding Athens willfully failed to pay plaintiff immediately on
his termination by All Service, or that there was “a knowing and
intentional failure” by Athens to provide plaintiff with wage
statements.
4. The PAGA Claim
Plaintiff contends the court erred in declining to award civil
penalties under PAGA for the failure to pay wages on
termination and the wage statement violations. Because we have
determined Athens was not liable for these violations, the PAGA
claims against Athens necessarily fail as well.
5. Plaintiff’s Appeal of the Costs Award
Code of Civil Procedure section 1032 governs the recovery
of costs by a prevailing party as a matter of right.
Subdivision (a)(4) (section 1032(a)(4)) specifies who is a
prevailing party.2
“Generally, the prevailing party in ‘any action or
proceeding’ is entitled to costs as a matter of right. (§ 1032,

2 Section 1032(a)(4) states: “ ‘Prevailing party’ includes the
party with a net monetary recovery, a defendant in whose favor a
dismissal is entered, a defendant where neither plaintiff nor
defendant obtains any relief, and a defendant as against those
plaintiffs who do not recover any relief against that defendant. If
any party recovers other than monetary relief and in situations
other than as specified, the ‘prevailing party’ shall be as
determined by the court, and under those circumstances, the
court, in its discretion, may allow costs or not and, if allowed,
may apportion costs between the parties on the same or adverse
sides pursuant to rules adopted under Section 1034.” And,
“[e]xcept as otherwise expressly provided by statute, a prevailing
party is entitled as a matter of right to recover costs in any action
or proceeding.” (§ 1032, subd. (b).)

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subd. (b).) By statute, a defendant against whom a plaintiff
recovers no relief is a ‘prevailing party.’ (Id., subd. (a)(4).) A trial
court has no discretion to deny prevailing party status to such a
defendant.” (Huerta v. Kava Holdings, Inc. (2018) 29 Cal.App.5th
74, 79 (Huerta); Charton v. Harkey (2016) 247 Cal.App.4th 730,
738 [“ ‘[T]he trial court has no discretion to deny prevailing party
status to a litigant who falls within one of the four statutory
categories in the first [sentence] of [section 1032 (a)(4)].” (Third
brackets added.)].)
As indicated earlier, the trial court awarded Athens costs of
$24,149.23 as the prevailing party. The court cited
section 1032(a)(4) and identified the applicable category:
“a defendant as against those plaintiffs who do not recover any
relief against that defendant.” (Ibid.) The court concluded that,
“pursuant to [section 1032(a)(4)], [Athens] is a prevailing party
by operation of law.” (Underscore omitted.)
Plaintiff challenges the award, contending that, because
Athens was found to be a joint employer, Athens was not entitled
to costs as a matter of right. Instead, he says, the court should
have exercised the discretion it has to determine the prevailing
party under the second sentence of section 1032(a)(4), that is, “[i]f
any party recovers other than monetary relief and in situations
other than as specified.” But plaintiff did not “recover[] other
than monetary relief”—he recovered nothing from Athens. Nor is
this a “situation[] other than as specified” in the first sentence of
section 1032(a)(4), that is, “a defendant as against those plaintiffs
who do not recover any relief against that defendant.”
Plaintiff insists—citing and discussing at length authorities
that are entirely inapt and facts that do not matter—that Athens
was not the prevailing party because plaintiff recovered against

25
its joint employer, and “that by itself should be sufficient” to
make plaintiff the prevailing party.
Of course, it is not sufficient, under the plain language of
the costs statute, and we are not at liberty to conclude otherwise.
The trial court had no discretion to deny prevailing party status
to Athens (Huerta, supra, 29 Cal.App.5th at p. 79), so the costs
award was proper.
DISPOSITION
The judgment and the postjudgment order are affirmed.
Defendant shall recover costs of appeal.

GRIMES, Acting P. J.

WE CONCUR:

WILEY, J.

OHTA, J.*

* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

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