Medina v. United Airlines CA2/1

Filed 8/24/21 Medina v. United Airlines CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

JOSE MEDINA B293677

Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC624742)
v.

UNITED AIRLINES, INC.,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Yvette M. Palazuelos, Judge. Reversed.
Diversity Law Group, Larry W. Lee; Law Offices of Choi &
Associates, Edward W. Choi; Polaris Law Group and William L.
Marder for Plaintiff and Appellant.
O’Meleveny & Myers, Adam P. KohSweeney and Susannah
K. Howard for Defendant and Respondent.

_________________________
 Jose Medina appeals from a summary judgment granted in
favor of United Airlines, Inc. (United) on his Private Attorneys
General Act (PAGA; § 2698 et seq.) action which seeks solely civil
penalties for United’s alleged violations of the meal break
requirements contained within the California Labor Code.
The trial court ruled the action was preempted by the
Railway Labor Act (RLA; 45 U.S.C. § 151 et seq.) because
adjudicating Medina’s claim would require the court to interpret
the parties’ collective bargaining agreement. However,
preemption under the RLA is narrowly construed under both
California and Supreme Court precedent and is required only if
the state law claim cannot be resolved without interpreting that
agreement.
Medina is seeking only penalties on behalf of the state, not
unpaid wages or other damages that might implicate the terms of
United’s collective bargaining agreement. Accordingly,
interpretation of that agreement is unnecessary to determine
whether United violated California’s Labor Code.
The PAGA serves an important supplementary role as an
enforcement tool under the Labor Code to augment the limited
enforcement capabilities of the state. Preemption of employment
standards within the traditional police power of the state should
not be lightly inferred.
Accordingly, we reverse.
FACTUAL AND PROCEDURAL HISTORY1
Medina has been employed as a mechanic at Los Angeles
International Airport for United and Continental Airlines

1“Our factual and procedural background is derived in part
from undisputed aspects of the trial court’s order and the parties’

2
(acquired by United in 2010) since January 1989. Mechanics are
subdivided into line technicians or base technicians, among other
categories. Line technicians such as Medina perform
maintenance on live aircraft—i.e., aircraft currently in service
and arriving and/or departing from a United station. Their
duties include responding to mechanical concerns raised by the
aircraft’s flight crew and ensuring that everything on the
minimum equipment list is in working order before the aircraft
takes off.
A. The Collective Bargaining Agreements
Due to Medina’s long-standing employment, first with
Continental Airlines and then United, the terms and conditions
of his employment are governed by two separate collective
bargaining agreements negotiated and approved under the RLA.2
The relevant meal break provisions are identical and, for ease of
reference, are hereafter referred to collectively as the “Collective
Bargaining Agreement” or “CBA.”3

filings.” (Western Bagel Co., Inc. v. Superior Court (2021) 66
Cal.App.5th 649, 655, fn. 2.)
2 The RLA regulates labor relations between common
interstate air carriers and their employees. (45 U.S.C. § 181;
DeTomaso v. Pan American World Airways, Inc. (1987) 43 Cal.3d
517, 525.)
3 Mechanics such as Medina, who worked for Continental
Airlines before the merger in 2010, are referred to as “heritage
Continental mechanics,” while those who worked for United
before the merger are referred to as “heritage United mechanics.”
The current governing meal break provisions were entered into
between United and International Brotherhood of Teamsters
(IBT), the union that represents United’s U.S.-based mechanics,
effective December 5, 2016. Prior to that date, heritage

3
 Under the Collective Bargaining Agreement, a normal work
day is eight hours of work, with a 30-minute unpaid meal break
and two 10-minute rest breaks. If a mechanic works two or more
hours of overtime, the employee “shall be afforded an additional
thirty (30) minute paid meal period, or pay in lieu thereof.” If the
employee works four hours of overtime, “an additional thirty (30)
minute paid meal period, or pay in lieu thereof, will be allowed
within the following hour.” “When not afforded the
aforementioned meal period(s) an employee may, subject to the
needs of service, forgo any additional pay and be allowed to leave
work early with pay at the applicable overtime rate.”
B. California Meal Break Requirements
Labor Code section 226.7, subdivision (b),4 prohibits an
employer from requiring “an employee to work during a meal or
rest or recovery period mandated pursuant to an applicable . . .
order of the Industrial Welfare Commission.” In turn, Industrial
Welfare Commission (IWC) Wage Order No. 9-2001, provides:
“An employer may not employ an employee for a work period of
more than ten (10) hours per day without providing the employee
with a second meal period of not less than 30 minutes, except
that if the total hours worked is no more than 12 hours, the
second meal period may be waived by mutual consent of the
employer and the employee only if the first meal period was not
waived.” (Wage Order No. 9-2001, § 11(B)
https://www.dir.ca.gov/IWC/IWCArticle09.pdf, as of 8/23/2021.)
Wage Order No. 9-2001 further provides that “[u]nless the
employee is relieved of all duty during a 30[-]minute meal period,

Continental mechanics, such as Medina, were covered by a CBA
between the IBT and Continental Airlines.
4 Undesignated statutory citations are to the Labor Code.

4
the meal period shall be considered an ‘on duty’ meal period and
counted as time worked.” (Id., § 11(C)). “An ‘on duty’ meal period
shall be permitted only when the nature of the work prevents an
employee from being relieved of all duty and when by written
agreement between the parties an on-the-job paid meal is agreed
to.” (Ibid.) “The written agreement shall state that the employee
may, in writing, revoke the agreement at any time.” (Ibid.)
C. The Complaint
On June 22, 2016, Medina filed a representative action
under the PAGA, premised on a single claim: United is violating
California meal break law by “failing to provide a second meal
break” to “[a]ll current and former California mechanic
employees . . . who worked any shifts of over 10 hours from
February 9, 2015 through the present.” The complaint alleges
that United engages in “willful violations of the California Labor
Code by creating and maintaining policies, practices and customs
that knowingly deny employees” their meal break rights. Medina
seeks penalties pursuant to the PAGA (§ 2699, subd. (a)), for
violations of section 226.7.
D. The Summary Judgment Motion
On November 22, 2017, United filed a motion for summary
judgment, arguing Medina’s action was preempted by the RLA
minor dispute preemption because adjudicating his claim would
require the court to interpret provisions of the mechanics’ CBAs.
United further argued that Medina’s action was preempted by
the Airline Deregulation Act (49 U.S.C. § 41713) and barred by
the Dormant Commerce Clause. Finally, United argued that it
complied with California law because the CBAs’ provisions
provide a second meal beak for employees who work over 10
hours.

5
 On September 24, 2018, the trial court granted United’s
motion for summary judgment on the sole ground that the action
was preempted by the RLA.5
On November 2, 2018, Medina filed his timely notice of
appeal.
DISCUSSION
A. Standard of Review
“The court’s order granting summary judgment and
involving an issue of preemption requires us to undertake a de
novo review.” (Department of Industrial Relations v. Nielsen
Construction Co. (1996) 51 Cal.App.4th 1016, 1024; see also
Valencia v. SCIS Air Security Corp. (2015) 241 Cal.App.4th 377,
383.)
B. PAGA Suits
The Legislature enacted the PAGA in 2003 after deciding
that lagging labor law enforcement resources made additional
private enforcement necessary “ ‘to achieve maximum compliance
with state labor laws.’ ” (Iskanian v. CLS Transportation Los
Angeles, LLC (2014) 59 Cal.4th 348, 379 (Iskanian), quoting
Arias v. Superior Court (2009) 46 Cal.4th 969, 980.)
The PAGA empowers employees to sue on behalf of
themselves and other aggrieved employees to recover civil
penalties previously recoverable only by the Labor Commissioner.
(See § 2699, subd. (a); Iskanian, supra, 59 Cal.4th at p. 381.) The

5 The court rejected United’s arguments based on the
Airline Deregulation Act and Dormant Commerce Clause and
further found there was “a dispute of material fact regarding
[United’s] compliance with California’s meal break
requirements.”

6
PAGA also creates new civil penalties, equally enforceable by
aggrieved employees, for most other Labor Code violations that
previously did not carry such penalties. (§ 2699, subds. (f), (g)(1);
Iskanian, supra, at pp. 379-380.)
“The purpose of the PAGA is not to recover damages or
restitution, but to create a means of ‘deputizing’ citizens as
private attorneys general to enforce the Labor Code.” (Brown v.
Ralphs Grocery Co. (2011) 197 Cal.App.4th 489, 501.) Seventy-
five percent of any penalties collected by a PAGA representative
are distributed to the Labor and Workforce Development Agency,
while the remaining 25 percent are distributed to the aggrieved
employees. (§ 2699, subd. (i).) Statutory class action
requirements are not applicable. (Arias v. Superior Court, supra,
46 Cal.4th at p. 975.)
C. RLA and Preemption
1. The RLA
Congress enacted the RLA “ ‘to promote stability in labor-
management relations by providing a comprehensive framework
for resolving labor disputes.’ ” (Espinal v. Northwest Airlines (9th
Cir. 1996) 90 F.3d 1452, 1456, quoting Hawaiian Airlines, Inc. v.
Norris (1994) 512 U.S. 246, 252 (Hawaiian Airlines.)
The RLA requires mandatory arbitration for two classes of
disputes: “ ‘major’ disputes,” which concern “ ‘the formation of
collective bargaining agreements or efforts to secure them,’ ” and
“ ‘minor’ disputes”, which “ ‘involve controversies over the
meaning of an existing collective bargaining agreement in a
particular fact situation.’ ” (Espinal v. Northwest Airlines, supra,
90 F.3d at p. 1456, quoting Hawaiian Airlines, supra, 512 U.S. at

7
pp. 252-253). Both major and minor disputes are preempted.6
(Hawaiian Airlines, supra, at pp. 252-254.)
Although the parties agree that Medina’s claim cannot be
considered a major dispute, United contends that it falls within
the minor dispute category and must be resolved only through
the RLA mechanisms.7
2. Minor Dispute Preemption
In determining dispute preemption, the United States
Supreme Court has instructed courts to employ the same criteria

6 “In the RLA and [Labor-Management Relations Act
section] 301 context, the ‘purpose of Congress’ is to protect the
role of grievance and arbitration and of federal labor law in
resolving CBA disputes, not to alter or displace state law labor
rights.” (Alaska Airlines Inc. v. Schurke (9th Cir. 2018) 898 F.3d
904, 926 (en banc) (Alaska Airlines); see also Melendez v. San
Francisco Baseball Associates LLC (2019) 7 Cal.5th 1, 9
(Melendez).)
7 Medina’s opening brief discusses the blanket exemptions
contained within Wage Order No. 9-2001 in arguing that RLA
preemption is not warranted. Because United has not asserted
any blanket exemptions either here or in the trial court, it
contends that Medina “has waived any argument that the trial
court erred in its application of RLA minor dispute preemption.”
However, United has fully briefed (and Medina has submitted a
reply on) the question of RLA minor dispute preemption.
Moreover, pursuant to the parties’ stipulation, this court stayed
proceedings in this matter pending the California Supreme
Court’s decision in Ward v. United Airlines, Inc. (2020) 9 Cal.5th
732, 743-748, which discusses the blanket wage order
exemptions. (See, e.g., Gunther v. North Coast Cooperative, Inc.,
(N.D. Cal. June 19, 2020) 2020 WL 3394547, at p. *7.) Under
these circumstances, we do not deem the issue waived. (Jameson
v. Desta (2009) 179 Cal.App.4th 672, 674, fn. 1.)

8
used to determine preemption under the Labor-Management
Relations Act (LMRA; 29 U.S.C. § 185). (Hawaiian Airlines,
supra, 512 U.S. at p. 263; Alaska Airlines, supra, 898 F.3d at
pp. 913-914, fn. 1.) The Ninth Circuit Court, in turn, has
developed a two-part test for resolving RLA and LMRA
preemption disputes, which California courts follow. (See
Melendez, supra, 7 Cal.5th at pp. 9-13; Sciborski v. Pacific Bell
Directory (2012) 205 Cal.App.4th 1152, 1164; Alaska Airlines,
supra, at p. 920; Burnside v. Kiewit Pac. Corp. (9th Cir. 2007) 491
F.3d 1053, 1060.)
The first step in minor dispute preemption analysis
requires the court to “ ‘evaluate whether the claim arises from
independent state law or from the collective bargaining
agreement. If the claim arises from the collective bargaining
agreement, the claim is preempted as a matter of law.’ ”
(Melendez, supra, 7 Cal.5th at p. 10.) If, as here, the claim does
not so arise, the court must then determine whether the labor
agreement claim nevertheless requires the “ ‘ “interpretation or
construction of a labor agreement.” ’ ” (Ibid.) To this critical
question we now turn.
We begin by pointing out that the term “ ‘ “interpret” ’ ” in
the context of RLA preemption “ ‘is defined narrowly—it means
something more than “consider,” “refer to,” or “apply.” ’ ”
(Melendez, supra, 7 Cal.5th at p. 8.) Preemption is warranted
only “when [the] resolution of a state law claim is ‘substantially
dependent’ on analysis of a collective bargaining agreement, such
as ‘when pertinent principles of state law require[ ] construing
the relevant collective-bargaining agreement.’ ” (Valles v. Ivy
Hill Corp. (9th Cir. 2005) 410 F.3d 1071, 1081, citing Lingle v.
Norge Div. of Magic Chef, Inc. (1988) 486 U.S. 399, 407, fn. 7;
Melendez, supra, at p. 9.)

9
 3. Narrow RLA Preemption Is Consistent With United
States Supreme Court Precedent
In Hawaiian Airlines, an aircraft mechanic was suspended
after refusing to sign a maintenance record due to a perceived
dangerous condition. In grievance procedures, the hearing officer
accepted the airline’s argument that the employee had been
insubordinate as defined under the collective bargaining
agreement and was properly discharged. (Hawaiian Airlines,
supra, 512 U.S. at pp. 248-250.)
The employee filed a civil lawsuit in the Hawaii state court,
alleging two wrongful discharge torts—discharge in violation of
public policy and the Hawaii’s Whistleblower Protection Act.
Although the trial court dismissed the state lawsuit as being
preempted, the Supreme Court of Hawaii reversed. (Hawaiian
Airlines, supra, 512 U.S. at p. 251.)
The United States Supreme Court affirmed, explaining
that “the CBA is not the ‘only source’ of [the employee’s] right not
to be discharged wrongfully. In fact, the ‘only source’ of the right
[the employee] asserts . . . is state tort law. Wholly apart from
any provision of the CBA, [the airline] had a state-law obligation
not to fire [the employee] in violation of public policy or in
retaliation for whistleblowing. The parties’ obligation under the
RLA to arbitrate disputes arising out of the application or
interpretation of the CBA did not relieve petitioners of this duty.”
(Hawaiian Airlines, supra, 512 U.S. at p. 258.)
In Lingle v. Norge Div. of Magic Chef, Inc., supra, 486 U.S.
399, the United States Supreme Court held that a state law claim
of retaliatory discharge for exercising state workers’
compensation rights was not preempted because the dispute did
not turn on the meaning of any terms in the collective bargaining
agreement. Whether the grievance could also have been filed and

10
arbitrated was deemed irrelevant: “[E]ven if dispute resolution
pursuant to a collective-bargaining agreement, on the one hand,
and state law, on the other, would require addressing precisely
the same set of facts, as long as the state-law claim can be
resolved without interpreting the agreement itself, the claim is
‘independent’ of the agreement.” (Id. at pp. 409-410, fn. omitted.)
The significance of Hawaiian Airlines and Lingle is that
minor dispute RLA preemption is not warranted even if a
bargaining agreement covers the same topic as the state law at
issue—or, indeed, contains terms that may be subject to differing
interpretations. Instead, preemption is required only if the state
law claim cannot be resolved without interpreting that
agreement.8 (Hawaiian Airlines, supra, 512 U.S. at p. 262;
Lingle v. Norge Div. of Magic Chef, Inc., supra, 486 U.S. at
pp. 408-410; see also Balcorta v. Twentieth Century-Fox Film
Corp. (2000) 208 F.3d 1102, 1111 [deeming it irrelevant whether
collective bargaining agreement terms were ambiguous on issue
under litigation because “whether a violation has occurred is
controlled only by the provisions of the state statute and does not
turn on whether the payment was timely under the provisions of
the collective bargaining agreement”].)

8 An example where interpretation of a bargaining
agreement was unavoidable is IBEW, AFL-CIO v. Hechler (1987)
481 U.S. 851, where plaintiff brought a negligence claim under
state common law against her own labor union, alleging breach of
the duty to provide a safe workplace. The court held the claim
was preempted because the plaintiff had expressly conceded that
the “ ‘nature and scope of the duty of care owed [her] is
determined by reference to the collective bargaining agreement.’ ”
(Id. at pp. 861-862, fn. 5.)

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D. Medina’s PAGA Claim Is Not Preempted Under the
RLA
Medina’s complaint alleges violations of section 226.7, and
the applicable IWC orders, for “failing to provide a second meal
break for each shift worked more than 10 hours.” The complaint
seeks “penalties pursuant to the PAGA, . . . § 2699[, subdivision]
(a).” As pled, Medina’s claims arise from California’s Labor Code,
not the Collective Bargaining Agreement. (Melendez, supra, 7
Cal.5th at p. 9 [“ ‘The primary point of reference . . . [is] the
plaintiff’s pleading’ ”]; Alaska Airlines, supra, 898 F.3d at p. 924
[same].)
In concluding that the CBA would need to be interpreted in
order to adjudicate Medina’s claim, the trial court pointed out
that, under the CBA, a mechanic who “does not receive a meal
period as required” “is entitled to one of two options” depending
on the “ ‘needs of service.’ ” The court found that “[d]etermining
compliance with IWC Wage Order [No.] 9-2001 would require the
[c]ourt to analyze the CBA’s term of what the appropriate remedy
offered by [United] for the missed second meal period’ was ‘in
conjunction with needs of service.’ ” (Italics added.)
In focusing on the remedy, the trial court relied on Fitz-
Gerald v. SkyWest, Inc. (2007) 155 Cal.App.4th 411 (Fitz-Gerald),
disapproved in part on other grounds in People ex rel. Harris v.
PAC Anchor Transportation, Inc. (2014) 59 Cal.4th 772, 784, and
similar cases. In Fitz-Gerald, the court pointed out that if the
trial court found meal and rest break violations “it would have to
determine whether the [flight attendant] was receiving flight pay
or block time pay when the violation occurred” because Wage
Order No. 9-2001 provides for one hour of pay “at the regular rate
of compensation” for each violation. (Fitz-Gerald, supra, at
p. 421.) Because the trial court would be unable to determine the

12
regular rate of compensation without interpreting the collective
bargaining agreement, the claim was preempted. (Id. at pp. 421-
422.)
The trial court erred both in focusing on the remedy and
reliance on Fitz-Gerald and its progeny.9 Medina’s PAGA suit is
limited to the recovery of PAGA civil penalties, not individual
damages. United contends that Medina’s “claim is no different”
from those raised in cases like Fitz-Gerald and will therefore
“involve the same interpretive issues.” We disagree.
The California Supreme Court’s decision in Iskanian makes
clear that a civil penalty recovered under the PAGA is different
from the hour of pay awarded for meal break violations under

9 The vitality of Fitz-Gerald and other decisions that relied
on or interpreted the RLA definitions prior to Hawaiian Airlines
are in question. (See Espinal v. Northwest Airlines, supra, 90
F.3d at p. 1458, fn. 6 [noting opinions issued prior to Hawaiian
Airlines were based “on the more expansive view of RLA
preemption that has since been overruled by [Hawaiian
Airlines]”]; see also Soldinger v. Northwest Airlines (1996) 51
Cal.App.4th 345, 361, fn. 6 [noting same with regards to state
opinions].) Moreover, recent decisions reject the blanket
assertion that determining a plaintiff’s “regular rate of pay”
would require a court to interpret the collective bargaining
agreement (see, e.g., Meek v. SkyWest, Inc. (2019) 2019 U.S. Dist.
LEXIS 216017; Toolajian v. Air Methods Corp. (2019) 2019 U.S.
Dist. LEXIS 236952), and United has not identified any
provisions relating to United mechanics’ “regular rate of pay”
calculation that are ambiguous or in dispute. (Alaska Airlines,
supra, 898 F.3d at p. 922 [preemption not warranted where a
court needs only to refer to the CBA and apply its plain or
undisputed language “to identify ‘bargained-for wage rates’ ”].)

13
section 226.7, subdivision (c).10 (Iskanian, supra, 59 Cal.4th at
p. 381.) Whereas Medina may not seek recovery of the premium
wages available under section 226.7, subdivision (c) in this PAGA
action, he is capable of recovering the flat amount/per-violation
civil penalties.11 (See ZB, N.A. v. Superior Court (2019) 8 Cal.5th
175, 185-186 [so stating]; see also Kim v. Reins International
California, Inc., (2020) 9 Cal.5th 73, 89.)
United urges that the parties’ “practices” and “customs” are
“part and parcel of analyzing the CBA,” and that “RLA minor
dispute preemption is not limited to situations where the written
CBA must be interpreted.” However, United cites no preemption
case holding that an employer’s “practice” or “custom” can, in and
of itself, form the basis for preemption. Instead, the claims in the
cases cited by United either directly arose out of the CBA (see
Consolidated Rail v. Railway Labor Exec. Ass’n (1989) 491 U.S
299, 303), or required interpretation of CBA’s written terms (see
Blackwell v. SkyWest Airlines, Inc. (2008) 2008 WL 5103195 at

10The hour of pay awarded is known variously as a
“premium wage” (see Murphy v. Kenneth Cole Productions, Inc.
(2007) 40 Cal.4th 1094, 1108, 1114) or “statutory damages”
provision (Iskanian, supra, 59 Cal.4th at p. 381).
11 Because section 226.7 does not contain its own civil
penalty provision for meal break violations, the penalty amounts
under section 2699, subdivision (f)(2) ($100 for first violation,
$200 for each thereafter) would apply. (Home Depot U.S.A., Inc.
v. Superior Court (2010) 191 Cal.App.4th 210, 218; cf. Kirby v.
Immoos Fire Protection, Inc. (2012) 53 Cal.4th 1244, 1256 [“The
failure to provide required meal and rest breaks is what triggers
a violation of [§] 226.7” and the payment of the premium does not
excuse the violation].)

14
p. *14 [“interpretative issues arise as to the proper calculation of
meal and rest period penalties”].)
To hold that the parties’ mere “practice” or “custom” could
form the basis for preemption would contravene the Supreme
Court’s admonition that “ ‘purely factual questions’ about an
employee’s conduct or an employer’s conduct and motives do not
‘requir[e] a court to interpret any term of a collective-bargaining
agreement.’ ” (Hawaiian Airlines, supra, 512 U.S. at p. 261.)
In finding that a material dispute existed as to whether
United did in fact comply with California law, the trial court
commented that, regardless of whether “[United] has policies for
meal breaks which comply with California law,” this “does not
establish it did not violate such policies.”12

12 United argued it was entitled to summary judgment
because “the CBA provisions regarding meal breaks . . . complied
with California meal break requirements.” The court rejected
this contention, identifying the following factual allegations as
the bases for the material dispute: (1) “while employees are not
scheduled for shifts of more than ten hours, . . . employees
regularly work shifts more than ten hours and . . . are not
provided a second meal break of at least 30 minutes”;
(2) “[e]mployees [do] not clock in or out for meal breaks and there
is no system to show the actual start or stop time of the meal
break taken by the employee because . . . [the] timekeeping
system is set up with an arbitrary meal break ‘to automatically
deduct 30 minutes from the employee’s time’ ”; (3) “[United]
employees are subject to call back during their meal breaks”; and
(4) “[United] only pays a meal break premium when the request
is made by the employee.” The facts supporting these allegations
arose from declarations and depositions, including those of
persons deemed most knowledgeable on the subject. (See
Carrington v. Starbucks Corp. (2018) 30 Cal.App.5th 504, 523-
526 [the plaintiff’s testimony and time records sufficient to

15
 While the factfinder may “ ‘ “consider,” “refer to,” or
“apply” ’ ” some of the CBA provisions (Melendez, supra, 7 Cal.5th
at p. 8), the determination of whether Medina and similar
employees were provided their second meal breaks will turn on
an interpretation of California law, not the CBA. (Id. at p. 9;
Balcorta v. Twentieth Century-Fox Film Corp., supra, 208 F.3d at
p. 1111 [stating “whether a violation has occurred is controlled
only by the provisions of the state statute” not the provisions of
the CBA].)
We pause here to note that Wage Order No. 9-2001 allows
an employee to waive an off-duty meal if: (1) the “nature of the
work” prevents the employee from being relieved of all duty;
(2) the employee agrees to the on-duty meal period in writing;
and (3) the written agreement provides that the employee may, in
writing, revoke the agreement at any time. (Wage Order No. 9-
2001, § 11(C)). While the CBA phrase “needs of service” may play
a role in determining whether a waiver exists due to the “nature
of the work” under Wage Order No. 9-2001, this interrelationship
does not result in preemption because “[t]he nature of the work
exception is an affirmative defense” (cf. Lubin v. The Wackenhut
Corp. (2016) 5 Cal.App.5th 926, 943), and an affirmative defense
cannot form the basis for preemption. (Ehret v. WinCo Foods,
LLC (2018) 26 Cal.App.5th 1, 9, fn. 6 [even if CBA was
ambiguous on question of whether employees waived meal breaks
under circumstances permitted under California law, preemption

establish she suffered meal break violations; testimony of witness
designated as most knowledgeable by the defendant and the
plaintiff’s expert statistician satisfied representative aspect of
PAGA claim by demonstrating corporate practices resulted in
numerous meal break violations].)

16
does not bar a claim if “a party raises a defense that requires a
court to interpret or apply a collective bargaining agreement”];
see also Caterpillar Inc. v. Williams (1987) 482 U.S. 386, 398-399
[stating “the plaintiff is the master of the complaint,” and that if
the defendant could engineer “the forum in which the claim shall
be litigated” based on the substance of his defense, “the plaintiff
would be master of nothing”]; Melendez, supra, 7 Cal.5th at p. 9.)
Because United has failed to identify any CBA provisions
that would warrant preemption, the trial court’s ruling cannot be
upheld. Our conclusion is consistent with the admonition that
preemption of employment standards “ ‘ “within the traditional
police power of the [s]tate” ’ ” “ ‘ “should not be lightly inferred” ’ ”
(Melendez, supra, 7 Cal. 5th at p. 9), and the recognition that the
PAGA was enacted to augment the limited enforcement
capabilities of the state. (Kim v. Reins International California,
Inc., supra, 9 Cal.5th at p. 86.; Brown v. Ralphs Grocery Co.,
supra, 197 Cal.App.4th at p. 501.)
These concerns have special importance where, as here, the
representative plaintiff is seeking to enforce state labor laws on
behalf of airplane mechanics who are responsible for ensuring the
safety of passengers. (See Donohue v. AMN Services, LLC (2021)
11 Cal.5th 58, 69 [noting that “delaying a meal period by even a
few minutes may exacerbate risks associated with stress or
fatigue, especially for workers who are on their feet most of the
day or who perform manual labor”].)
E. Summary Judgment Is Not Warranted on the Other
Grounds Rejected by the Trial Court
United contends that the judgment should be affirmed on
the other grounds rejected by the trial court. We disagree.
Preemption under the Airline Deregulation Act is
unwarranted because meal and rest breaks do not “ ‘relate to’ ”

17
an “airline’s ‘price, route, or service’ ” (Valencia v. SCIS Air
Security Corp., supra, 241 Cal.App.4th at p. 385; Bernstein v.
Virgin America, Inc. (9th Cir. 2021) 990 F.3d 1157, 1167).
The Dormant Commerce Clause is not implicated because
Medina and all represented employees worked exclusively in
California during the relevant time frame. (Cf. Ward v. United
Airlines, Inc. (9th Cir. 2021) 986 F.3d 1234, 1239, 1241-1242.)
Even were we to accept United’s assertion that the CBA is
consistent with California law, such consistency would not
establish that United did not actually violate the employees’ meal
break rights. (Cf. Cicairos v. Summit Logistics, Inc. (2005) 133
Cal.App.4th 949, 959-960.) The trial court correctly determined
that a material dispute of fact exists on that ultimate question
based on the evidence before the court.
We therefore reverse the summary judgment.
DISPOSITION
The judgment in favor of United is reversed. Medina is
awarded costs on appeal.
NOT TO BE PUBLISHED

CRANDALL, J.*

We concur:

CHANEY, J. BENDIX, Acting P. J.

* Judge of the San Luis Obispo County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.

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