Filed 3/23/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
JORGE LUIS ESTRADA et al.,
Plaintiffs and Appellants, G058397, G058969
v. (Super. Ct. No. 30-2013-00692890)
ROYALTY CARPET MILLS, INC., OPINION
Defendant and Appellant.
Appeal from an order and judgment of the Superior Court of Orange
County, Randall J. Sherman, Judge. Affirmed in part, reversed in part and remanded
with directions.
Ginez, Steinmetz & Assoc., Rudy Ginez, Jr.; CE Smith Law Firm and
Clifton E. Smith for Plaintiffs and Appellants.
Baker & Hostetler, Daniel F. Lula, Vartan S. Madoyan and Joseph S.
Persoff for Defendant and Appellant.
* * *
The plaintiffs in this case were employees at three separate carpet
manufacturing facilities operated by defendant Royalty Carpet Mills, Inc. (Royalty),
which is now known as Royalty Carpet Mills, LLC. They alleged representative claims
1
under the Private Attorneys General Act (PAGA; Lab. Code § 2698 et seq.), and class
claims primarily based on purported meal and rest period violations. They sought
premium pay under section 226.7 for these violations and asserted derivative claims for
waiting time and wage statement penalties, among others. The trial court initially
certified two classes: one for employees that worked at a facility in Porterville (the
Porterville class) and another for employees that worked in two separate facilities in
Orange County (the Dyer/Derian class). Following the presentation of evidence at trial,
the court decertified the Dyer/Derian class and then entered judgment. The results were
mixed and both sides appeal.
Plaintiffs make several contentions on appeal: (1) certain releases in
settlement agreements that Royalty made with individual class members prior to trial are
invalid; (2) the court erred in finding the Porterville class’s meal period claim, which was
added in an amended complaint, did not relate back to any prior complaint; (3) the court
abused its discretion by decertifying the Dyer/Derian class; (4) the court incorrectly
applied a seven percent prejudgment interest rate to premium pay awarded under section
226.7 rather than a 10 percent rate; (5) the court’s judgment for Royalty on the Porterville
class’s derivative waiting time and wage statement claims was wrong; and (6) the court
mistakenly dismissed the PAGA meal period claims of the Dyer/Derian employees on
unmanageability grounds. As explained in this opinion, we agree with three of these
contentions. We find the court erred in failing to apply the relation back doctrine, in
decertifying the Dyer/Derian class, and dismissing the PAGA claims as unmanageable.
1
All further undesignated statutory references are to the Labor Code.
2
We publish this opinion primarily due to our discussion concerning
unmanageable PAGA claims. Currently, only one published California opinion, Wesson
v. Staples the Office Superstore, LLC (2021) 68 Cal.App.5th 746 (Wesson), addresses this
issue. It concluded courts have inherent authority to strike unmanageable PAGA claims.
(Id. at pp. 766-767.) While we understand the concerns expressed in Wesson, we reach
the opposite conclusion. Based on our reading of pertinent Supreme Court authority,
chiefly Arias v. Superior Court (2009) 46 Cal.4th 969, and Kim v. Reins International
California, Inc. (2020) 9 Cal.5th 73, we find a court cannot strike a PAGA claim based
on manageability. These cases have made clear that PAGA claims are unlike
conventional civil suits and, in particular, are not class actions. Allowing dismissal of
unmanageable PAGA claims would effectively graft a class action requirement onto
PAGA claims, undermining a core principle of these authorities. It would also interfere
with PAGA’s purpose as a law enforcement mechanism by placing an extra hurdle on
PAGA plaintiffs that is not placed on the state. That said, courts are not powerless when
facing unwieldy PAGA claims. Courts may still, where appropriate and within reason,
limit the amount of evidence PAGA plaintiffs may introduce at trial to prove alleged
violations to other unrepresented employees. If plaintiffs are unable to show widespread
violations in an efficient and reasonable manner, that will just reduce the amount of
penalties awarded rather than lead to dismissal.
As for Royalty, it makes two arguments in its cross-appeal. First, it asserts
the trial court incorrectly found it liable to the Porterville class for meal period violations.
We find the court correctly ruled that the meal policy at Porterville, which required
employees to remain at the facility during meal breaks, violated governing law. Second,
while the court dismissed the Dyer/Derian employees’ PAGA meal period claim as
unmanageable, it awarded the named plaintiffs individual PAGA penalties. Royalty
contends courts cannot award PAGA penalties to individual plaintiffs because such
claims can only be brought in a representative capacity. We need not address this
3
argument given our finding that the court erred by dismissing the PAGA claim as
unmanageable.
For these reasons, we reverse the trial court’s order decertifying the
Dyer/Derian class and dismissing the related PAGA claim as unmanageable, and we
affirm and reverse various aspects of the court’s judgment.
I
FACTS AND PROCEDURAL HISTORY
A. The Complaints
Royalty operated warehouses and carpet manufacturing facilities at various
locations in California until June 14, 2017, when it ceased operations. Three facilities are
relevant to this appeal. The first facility was in Porterville, California (Porterville), which
is part of Tulare County. The two other facilities were in Orange County on Dyer Road
2
in Santa Ana (Dyer) and Derian Avenue in Irvine (Derian).
Plaintiff Jorge Estrada was a dye weigher at Derian. On December 13,
2013, he filed a complaint against Royalty alleging causes of action for (1) meal period
violations (§§ 226.7, 512, subd. (a)); (2) rest period violations (§ 226.7); (3) waiting time
penalties (§ 203); (4) wage statement penalties (§ 226, subd. (e)); (5) unlawful business
practices (Bus. & Prof. Code, § 17200; UCL); and (6) PAGA penalties (§ 2698, et seq.).
All these claims were asserted individually, except for the PAGA claim. He later filed a
first amended complaint, which is immaterial to this appeal.
A second amended complaint (SAC) was filed on October 22, 2014, by
Estrada and new plaintiff Paulina Nava Medina, a mender and creeler at Dyer. The SAC
retained the PAGA claim and realleged Estrada’s individual claims as class claims. The
2
Royalty operated another manufacturing facility located on Red Hill Avenue in Irvine.
No claims were brought on behalf of the employees at trial, so they are irrelevant to this
appeal.
4
proposed class covered Royalty’s employees at Dyer, Derian, and Porterville,
specifically, “[a]ll current and former nonexempt employees of [Royalty], who worked in
its carpet manufacturing and warehouse facilities in California at any time from
December 13, 2009, through the date of judgment.”
In 2016, Royalty made settlement proposals to individual putative class
members, offering them payments of varying amounts in exchange for a release of their
claims. In all, 232 out of 388 putative class members accepted and entered into
settlement agreements with Royalty (about 60 percent of the putative class), while 156
refused. The specific distribution among facilities was (1) for Dyer, 66 putative class
members settled and 59 did not; (2) for Derian, 51 putative class members settled and 40
did not; and (3) for Porterville, 115 class members settled and 57 did not.
A third amended complaint (TAC), the operative complaint at trial, was
filed on November 17, 2016. The TAC’s proposed class was virtually the same as the
SAC. But, along with Estrada and Medina, the TAC added 11 new plaintiffs, several of
which worked at Porterville. In all, the TAC alleged seven class claims and one
representative PAGA claim: (1) meal period violations, (2) rest period violations,
(3) wage statement penalties, (4) waiting time penalties, (5) penalties under section 558,
(6) PAGA penalties, (7) UCL violations, and (8) declaratory relief. These claims are
summarized below.
Of particular relevance on appeal is plaintiffs’ meal period claim. In the
SAC, the meal period claim was primarily based on allegations that Royalty failed to
provide timely first meal periods and deprived employees of second meal periods. The
TAC included these theories but also alleged Porterville had a unique policy that
prevented employees from leaving the facility during meal periods (the on-premises meal
policy). Plaintiffs asserted Porterville’s on-premises meal policy was facially unlawful.
As for the rest break claim, it was based on allegations that Royalty did not allow
5
employees at the three facilities to take their required rest breaks or discouraged them
from doing so.
Plaintiffs’ claims for wage statement and waiting time penalties were
derivative of their meal and rest break claims. As background, if an employer fails to
provide an employee with a lawful meal or rest break, section 226.7, subdivision (c)
requires the employer to pay the employee “one additional hour of pay at the employee’s
regular rate of compensation.” This is commonly known as “premium pay.” (See
Donohue v. AMN Services, LLC (2021) 11 Cal.5th 58, 67-68, 78 (Donohue).) Plaintiffs
asserted Royalty failed to provide premium pay for the meal and rest break violations
alleged in their complaint. Due to this failure, they asserted their wage statements were
inaccurate because they did not include the premium pay to which they were entitled.
Likewise, plaintiffs sought waiting time penalties because Royalty failed to provide this
allegedly owed premium pay to employees upon separation from employment.
Plaintiffs’ PAGA claim was based on the alleged violations of the Labor
Code set forth above, and their UCL claim was similarly based on the alleged meal and
rest period violations. Finally, the new declaratory relief claim sought to invalidate the
releases in the individual settlement agreements on grounds they were void and
3
unenforceable.
B. Class Certification
Nine of the 13 named plaintiffs moved for class certification in June 2017
(it is unclear why only nine made the motion). They sought certification of two separate
classes. Both classes consisted of nonexempt employees employed by Royalty between
December 13, 2009, and June 14, 2017 (the date Royalty closed), with one class of
3
The section 558 claim was not pursued at trial for unexplained reasons. We note that
just prior to the entry of judgment in this case, our Supreme Court held a plaintiff may
not bring a private right of action under section 558 or seek PAGA penalties for a
violation of this statute. (ZB, N.A. v. Superior Court (2019) 8 Cal.5th 175, 181-182.)
6
Porterville workers and another class of Dyer and Derian workers. Plaintiffs also
requested that each class be divided into separate subclasses for each claim. The motion
was heard and partially granted by Judge Kim G. Dunning.
As to the Porterville workers, the court certified a Porterville class
consisting of “‘[a]ll former nonexempt, hourly employees of [Royalty], who worked at
the Porterville carpet manufacturing and warehouse facility at any time from December
13, 2009 through June 14, 2017.’” The court also certified three subclasses within the
Porterville class: (1) a meal period subclass to determine whether Porterville’s on-
premises meal policy was lawful; (2) a rest period subclass to determine whether
Royalty’s rest period policies at Porterville were facially lawful; and (3) a release
subclass to determine whether Porterville class members’ settlement releases were
enforceable.
The court also certified a Dyer/Derian class composed of “‘[a]ll former
nonexempt, hourly employees of [Royalty], who worked at either the Dyer or Derian
carpet manufacturing and warehouse facility at any time from December 13, 2009
through June 14, 2017.’” As with the Porterville class, the court certified three
subclasses within this class: (1) a meal period subclass to determine whether
Dyer/Derian class members were provided timely first meal periods and/or deprived of
second meal periods; (2) a rest period subclass to determine whether Royalty’s rest
period policies at Dyer and Derian were facially lawful; and (3) a release subclass to
determine whether the Dyer/Derian class members’ settlement releases were enforceable.
Finally, the court certified subclasses for all derivative claims tied to the
above certified issues, including claims for premium pay, wages statement penalties,
waiting time penalties, and unfair business practices. Five named plaintiffs were found to
be suitable class representatives for the Dyer/Derian class, and four named plaintiffs were
found to be suitable representatives for the Porterville class.
7
Prior to trial, Royalty brought a motion to decertify the class, but it was
denied due to Royalty’s failure to show changed circumstances warranting
decertification.
C. Trial
A bench trial before Judge Randall J. Sherman began in November 2018
and resumed in April and May 2019. At trial, plaintiffs’ case consisted of live testimony
from 12 of the 13 named plaintiffs, deposition testimony from four different managers
and officers of Royalty, live testimony from two of Royalty’s human resources
employees, and live testimony from an expert witness. After plaintiffs rested, Royalty
moved mid-trial to decertify the classes and for judgment under Code of Civil Procedure
section 631.8.
Following argument on Royalty’s motions, the court provided rulings on
the issues raised. First, the court granted judgment as to plaintiffs’ third cause of action
for wage statement penalties and fourth cause of action for waiting time penalties. As to
the former, the claim failed because the wage statements accurately reported what was
paid. As to the latter, plaintiffs had not shown that Royalty’s failure to pay any wages
was willful. Second, the court dismissed the portion of plaintiffs’ PAGA claim based on
Porterville’s on-premises meal policy due to plaintiffs’ failure to exhaust administrative
remedies. Third, it decertified both rest break subclasses due to insufficient evidence
supporting class treatment. But the court denied Royalty’s mid-trial request to decertify
the Dyer/Derian meal break subclass, and it required Royalty to put on its defense to this
claim. Likewise, it denied Royalty’s motion as to the Porterville class’s meal period
claim, which was based on the on-premises meal policy.
Following these rulings, Royalty presented its defense, which included
testimony from two former employees and an expert witness. Plaintiffs then called a
rebuttal witness and rested.
8
Prior to closing arguments, the court inquired about the proper limitations
period for the Porterville class’s meal period claim. Previously, Judge Dunning had
found the limitations period for this claim commenced on December 13, 2009, which was
calculated by applying a four-year statute of limitations to the date the action was filed.
But the court noted Porterville’s on-premises meal policy was first alleged in the TAC.
Accordingly, it questioned whether the statute of limitations on this claim should run
from the filing of the TAC or a prior complaint. This issue was significant, as it would
greatly affect any recovery of the Porterville class. The court directed the parties to
address this issue in their closing arguments.
D. Rulings and Judgment
1. Class claims
As to the first cause of action for meal period violations, the court issued an
order decertifying the Dyer/Derian meal period subclass. The court found there were too
many individualized issues to support class treatment. That order likewise dismissed the
portion of the PAGA claim (sixth cause of action) based on meal period violations at
Dyer and Derian because the individualized issues made it unmanageable.
With regard to the Porterville class’s meal period claims, the court
concluded Royalty’s on-premises meal policy was unlawful. But it determined this claim
was first asserted in the TAC and did not relate back to any prior pleading. As such, it
found the four-year statute of limitations on this claim ran backwards from the filing of
the TAC, restricting the class recovery for this claim to violations occurring between
November 17, 2012 (four years from the filing date of the TAC), to June 14, 2017 (the
9
4
date Royalty closed). Based on these meal period violations, the court also found
Royalty liable to the Porterville class for UCL violations (seventh cause of action). For
the meal period and UCL claims, the court awarded the Porterville class $555,752,
consisting of $436,963 in unpaid premium pay and $118,789 in prejudgment interest
calculated at a rate of 7 percent per annum. As explained above, no PAGA penalties
(sixth cause of action) were awarded to the Porterville employees for meal period
violations because plaintiffs failed to exhaust their administrative remedies.
The court also confirmed its prior rulings granting Royalty’s mid-trial
motions to decertify the rest break subclasses (second cause of action) and for judgment
on plaintiffs’ third cause of action for wage statement penalties and fourth cause of action
for waiting time penalties. Finally, as to the eighth cause of action concerning the
validity of the releases, the court found this issue was only relevant to the Porterville
class’s meal period claims since the Dyer/Derian class had been decertified and it had
found no liability on the rest break claims. The court ruled these releases were valid
because there was a bona fide dispute as to whether Royalty owed the Porterville class
any premium pay for meal period violations.
2. Individual claims
Since the trial court decertified the Dyer/Derian meal period subclass, it
granted judgment to four of the named Dyer/Derian plaintiffs on their individual meal
5
period claims and derivative UCL claims. Though the court dismissed their
4
The Porterville on-premises meal policy remained in place after Royalty entered into
settlements agreements with individual class members. Since settling Porterville class
members only released claims up to the date of their settlements, the court awarded them
premium pay for the meal period violations that occurred after their settlements were
entered into.
5
The parties do not explain why only four of the five class representatives for the
Dyer/Derian class were awarded damages. But it appears one of the class representatives
did not testify at trial and, consequently, was not awarded any damages.
10
representative PAGA claims based on unmanageability, it found the named Dyer/Derian
plaintiffs had established individual PAGA violations and awarded each of them PAGA
penalties. These four named plaintiffs were awarded amounts ranging from $9,516.01 to
$27,047.84, consisting of unpaid premium pay, prejudgment interest at a rate of 7
percent, and individual PAGA penalties.
The court entered judgment on January 16, 2020. Both sides now appeal
the judgment, and plaintiffs also appeal the court’s order decertifying the Dyer/Derian
meal period subclass and dismissing the related Dyer/Derian PAGA claim as
unmanageable.
II
DISCUSSION
Plaintiffs assert several errors on appeal. First, the court erroneously ruled
the releases were valid. Second, the court improperly failed to apply the relation back
doctrine to the statute of limitations for the Porterville class’s meal period claims. Third,
the court’s decision to decertify the Dyer/Derian meal period subclass was incorrect.
Fourth, the court should have applied a prejudgment interest rate of 10 percent rather than
7 percent to the unpaid premium pay awarded. Fifth, the court erred by failing to award
the Porterville class waiting time and wage statement penalties. Sixth, the court wrongly
dismissed as unmanageable the Dyer/Derian plaintiffs’ PAGA claim that was based on
meal period violations.
Royalty makes two arguments in its cross-appeal. First, it contends
Porterville’s on-premises meal policy is lawful, and, therefore, the Porterville class is not
owed any premium pay for meal period violations. Second, it claims the court erred in
awarding PAGA penalties to individual plaintiffs because PAGA claims can only be
brought in a representative capacity. The issues raised by Royalty all overlap with
11
various issues raised by plaintiffs. We begin our analysis with these overlapping issues
and then address plaintiffs’ remaining arguments.
In short, we agree with plaintiffs’ contentions that the trial court should
have applied the relation back doctrine, erred in decertifying the Dyer/Derian meal period
subclass, and wrongly dismissed as unmanageable the portion of the Dyer/Derian PAGA
claim based on meal period violations. As to the remaining arguments, we either
disagree with them or find they no longer need to be addressed based on our other
rulings.
A. Meal Period Premiums
Both appeal and cross-appeal require us to determine whether Royalty’s on-
premises meal policy was lawful. Royalty claims the court erred by ruling the policy was
unlawful and awarding the Porterville class premium pay for meal period violations
based upon it. Plaintiffs fervently disagree. Indeed, they assert there is no good faith
dispute that the on-premises meal policy was lawful, and they maintain Royalty clearly
owed Porterville class members premium pay for these obvious Labor Code violations.
Further, because no good faith dispute exists on these issues, they contend any settlement
releases of premium pay for these meal period violations are invalid. We agree with the
court that the on-premises meal policy was unlawful, and, as such, Royalty owed the
Porterville class premium pay. We also agree with the court’s finding that Royalty had a
good faith dispute that its on-premises meal policy was legal and, therefore, the
settlement releases of premium pay arising from this policy are valid. We start by
evaluating the lawfulness of the on-premises meal policy.
1. The on-premises meal policy
“An employer generally must provide a 30-minute meal period to all
nonexempt employees who work more than five hours, and a second 30-minute meal
12
period to employees who work more than 10 hours.” (Lampe v. Queen of the Valley
Medical Center (2018) 19 Cal.App.5th 832, 847.) The first meal period must occur no
later than five hours after work begins, and the second period must occur no later than 10
hours after work begins. (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th
1004, 1041-1042 (Brinker).) Both meal periods can be waived by agreement under
certain conditions. The first meal period can be waived if the employee works no more
than six hours in a day, and the second can be waived if the employee works no more
than 12 hours in a day and the first meal period was not waived. (§ 512, subd. (a).) “If
an employer fails to provide an employee a meal . . . period in accordance with a state
law, . . . the employer shall pay the employee one additional hour of pay at the
employee’s regular rate of compensation for each workday that the meal . . . period is not
provided.” (§ 226.7, subd. (c).)
Meal periods must be taken either on duty or off duty. “‘Unless the
employee is relieved of all duty during a 30 minute meal period, the meal period shall be
considered an “on duty” meal period and counted as time worked.’” (Brinker, supra, 53
Cal.4th at p. 1035.) On-duty meal periods are only permitted by written agreement
between the parties when the nature of the work prevents an employee from being
relieved of all duty. (Ibid.) “[A]bsent such circumstances, an employer is obligated to
provide an ‘off-duty’ meal period . . . in which the employee ‘is relieved of all duty
during [the] 30-minute meal period.’” (Ibid.)
The relevant aspects of Porterville’s on-premises meal policy are largely
undisputed. Nonexempt workers at Porterville were relieved of all duty during their 30-
minute lunch period but were required to remain at the facility. Importantly, Royalty
paid the Porterville workers their regular wages during meal periods, but it did not give
them premium pay for having to remain on the premises. Royalty insists its on-premises
meal policy was lawful because its workers were relieved of duty and paid wages during
the meal period. We are unconvinced.
13
It is uncontested the meal periods at issue were taken off duty, not on duty.
When taken off duty, the “meal period requirement is satisfied if the employee (1) has at
least 30 minutes uninterrupted, (2) is free to leave the premises, and (3) is relieved of all
duty for the entire period.” (Brinker, supra, 53 Cal.4th at p. 1036, italics added.)
“Employers must afford employees uninterrupted half-hour periods in which they are
relieved of any duty or employer control and are free to come and go as they please.”
(Id. at p. 1037, italics added.) “‘The worker must be free to attend to any personal
business he or she may choose during the unpaid meal period.’” (Id. at p. 1036.) “If an
employer does not provide an employee with a compliant meal period, then the employer
must provide the employee with premium pay for the violation.” (Donohue, supra, 11
Cal.5th at pp. 67-68.) Since Porterville workers were not free to leave the premises,
Royalty’s on-premises meal policy was noncompliant, so it was obligated to provide
premium pay to these employees.
Royalty maintains Brinker’s primary emphasis for off-duty meal periods
was relieving employees of work, not freedom of movement. It cites various portions of
Brinker that describe the employer’s obligation as relieving its employees of duty without
mentioning freedom of movement. It also cites a portion of Brinker summarizing the
Court’s holding: “[t]he employer satisfies [its meal period] obligation if it relieves its
employees of all duty, relinquishes control over their activities and permits them a
reasonable opportunity to take an uninterrupted 30-minute break, and does not impede or
discourage them from doing so. What will suffice may vary from industry to industry
. . . .” (Brinker, supra, 53 Cal.4th at p. 1040, italics added.) Based on these citations,
Royalty suggests the core requirement of off-duty meal periods is relief from duty and
that freedom of movement, while important, can vary based on industry.
It is true that Brinker primarily mentions relief from duty as the hallmark of
off-duty meal periods, and it does so at a far greater rate than freedom of movement.
Still, it contains several unambiguous statements that employees must be given freedom
14
of movement for an employer to satisfy the off-duty meal period requirement. Though
Royalty relieved the Porterville class members of duty during their meal periods, it did
not provide compliant meal periods because workers were not free to leave the premises.
(Brinker, supra, 53 Cal.4th at pp. 1036-1037.) Consequently, these workers are owed
premium pay for these noncompliant meal periods. (Id. at p. 1018; Donohue, supra, 11
Cal.5th at pp. 67-68.) We need not decide whether certain industries may restrict their
employees’ freedom of movement during meal breaks. Even if there is some flexibility
to this standard, Royalty has not cited anything in the record showing an exception to the
general rule is warranted here.
Royalty also compares off-duty meal periods to off-duty rest periods. For
the latter, our Supreme Court has suggested employers can lawfully require employees to
remain on the premises. (See Augustus v. ABM Security Services, Inc. (2016) 2 Cal.5th
257, 270.) Royalty contends the same should be true for off-duty meal periods. Not so.
The Court has unequivocally stated employers must afford employees meal periods in
which they “are free to come and go as they please.” (Brinker, supra, 53 Cal.4th at
p. 1037.) Further, there are material differences between rest breaks and meal breaks
namely, their length. “Because rest periods are 10 minutes in length [citation], they
impose practical limitations on an employee’s movement. That is, during a rest period an
employee generally can travel at most five minutes from a work post before returning to
make it back on time. Thus, one would expect that employees will ordinarily have to
remain on site or nearby. This constraint, which is of course common to all rest periods,
is not sufficient to establish employer control.” (Augustus, at p. 270.) The analogy to
rest periods is unpersuasive since meal periods are three times longer and are not subject
to the same time constraints.
15
2. Offsets to premium pay
As a fallback argument, Royalty suggests the amount of premium pay
awarded by the court should be offset by the regular wages it paid to Porterville
employees during their meal periods. But no offset applies because premium pay under
section 226.7 serves a different purpose than wages. Rather than compensating
employees for time worked, it is awarded for the noneconomic injuries suffered by them
due to deprivation of a compliant meal period.
“Section 226.7 is not aimed at protecting or providing employees’ wages.
Instead, the statute is primarily concerned with ensuring the health and welfare of
employees by requiring that employers provide meal and rest periods as mandated . . . .”
(Kirby v. Immoos Fire Protection, Inc. (2012) 53 Cal.4th 1244, 1255.) Even if the
employee “is paid for the 30 minutes of work, the employee has been deprived of the
right to be free of the employer’s control during the meal period.” (Murphy v. Kenneth
Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1104.) Noncompliant meal periods
“den[y] employees time free from employer control that is often needed to be able to
accomplish important personal tasks.” (Id. at p. 1113.) “Section 226.7 provides the only
compensation for these injuries.” (Id. at p. 1104.)
Moreover, “even a minor infringement of the meal period triggers the
premium pay obligation.” (Donohue, supra, 11 Cal.5th at pp. 67-68.) “In the meal
period context, an employee receives the full amount of premium pay . . . regardless of
the extent of the violation. [Citations.] In other words, whether an employer provides a
shortened meal period or no meal period at all, the employee receives one additional hour
of pay.” (Id. at p. 69.) “The premise of this approach is that even relatively minor
infringements on meal periods can cause substantial burdens to the employee.” (Ibid.)
“By requiring premium pay for any violation, no matter how minor, the structure makes
clear that employers must provide compliant meal periods whenever such a period is
triggered.” (Ibid.)
16
3. Validity of class members’ releases
Porterville class members that settled with Royalty released, among other
things, their right to any premium pay for meal period violations owed up to the date of
the settlement. Plaintiffs claim these releases are invalid. They contend Royalty’s on-
premises meal policy was patently unlawful, and Royalty could not settle this claim to
avoid its obvious premium pay obligations. We agree with the trial court that Royalty
had a good faith dispute as to the lawfulness of this policy, and, therefore, the releases at
6
issue are valid.
The applicable statute is section 206.5, subdivision (a), which prevents an
employer from “requir[ing] the execution of a release of a claim or right on account of
wages due, or to become due, . . . unless payment of those wages has been made. A
release required or executed in violation of the provisions of this section shall be null and
void as between the employer and the employee.” (§ 206.5, subd. (a).) This statute is
read along with section 206, subdivision (a), which states that in wage disputes, “the
employer shall pay . . . all wages, or parts thereof, conceded by him to be due, leaving to
the employee all remedies he might otherwise be entitled to as to any balance claimed.”
(§ 206, subd. (a); Watkins v. Wachovia Corp. (2009) 172 Cal.App.4th 1576, 1586-1587.)
Together, these statutes “prohibit[] employers from coercing settlements by
withholding wages concededly due. [W]ages are not considered ‘due’ and unreleasable
under Labor Code section 206.5, unless they are required to be paid under Labor Code
section 206. When a bona fide dispute exists, the disputed amounts are not ‘due,’ and the
bona fide dispute can be voluntarily settled with a release and a payment—even if the
payment is for an amount less than the total wages claimed by the employee.” (Watkins
v. Wachovia Corp., supra, 172 Cal.App.4th at pp. 1586-1587.) In other words, “‘wages
6
The parties dispute the proper standard of review. Royalty believes the substantial
evidence standard applies, while plaintiffs assert our review is de novo. We need not
decide since our decision would be the same under either standard.
17
are not “due” if there is a good faith dispute as to whether they are owed.’” (Chindarah
v. Pick Up Stix, Inc. (2009) 171 Cal.App.4th 796, 802.)
As discussed above, Royalty contends the Porterville on-premises meal
policy is lawful and disputes owing Porterville class members any premium pay. While
we disagree, Royalty’s position is not so untenable as to constitute bad faith. As set forth
above, Brinker primarily focused on relief from duty and suggested meal period
requirements “may vary from industry to industry.” (Brinker, supra, 53 Cal.4th at p.
1040.) Further, employers need only pay regular wages for on-duty meal periods, not
premium pay. (Id. at pp. 1035-1036, 1039-1040.) From this, it was not unreasonable for
Royalty to believe it could restrict employee freedom of movement during meal periods
if it provided relief from duty and regular wages.
Royalty’s position is also supported by statements on the Frequently Asked
Questions (FAQ) section of the Department of Labor Standards Enforcement’s website.
For example, Royalty cites a portion of the FAQ containing the following guidance:
“Q. Can my employer require that I stay on its premises during my
meal period?”
“A. Yes, your employer can require that you remain on its premises during
your meal period, even if you are relieved of all work duties. However[,] if that occurs,
you are being denied your time for your own purposes and in effect remain under the
employer’s control and thus, the meal period must be paid. [I]f you are required to eat on
the premises, a suitable place for that purpose must be designated. ‘Suitable’ means a
sheltered place with facilities available for securing hot food and drink or for heating
food or drink, and for consuming such food and drink.” (Italics added.)
This guidance fails to mention premium pay and suggests on-premises meal
policies are legally compliant if employees are paid wages. In response, plaintiffs cite a
portion of the FAQ stating that “to satisfy its obligation to provide a meal period, an
employer must actually relieve employees of all duty, relinquish control over their
18
activities, permit them a reasonable opportunity to take an uninterrupted 30-minute break
(in which they are free to come and go as they please), and must not impede or
discourage employees from taking their meal period.” They then quote a separate section
of the FAQ stating that “[i]f an employer fails to provide an employee a meal period in
accordance with an applicable IWC Order, the employer must pay one additional hour of
pay at the employee’s regular rate of pay for each workday that the meal period is not
provided.”
These portions of the FAQ do not clearly state Royalty had to provide
premium pay and regular wages if it required employees to remain on premises during
meal periods. Rather, based on the portion of the FAQ Royalty cites, Royalty could
reasonably conclude it could satisfy its meal period obligation by paying employees their
regular wages during meal periods.
B. The Dyer/Derian Employees’ PAGA Claim
The trial court dismissed the Dyer/Derian employees’ representative PAGA
meal period claim due to unmanageability. It then awarded PAGA penalties to the
named Dyer/Derian plaintiffs in an individual capacity. On appeal, plaintiffs maintain
PAGA claims have no manageability requirement. Relatedly, Royalty cross-appeals on
grounds the court improperly awarded individual PAGA penalties to four Dyer/Derian
plaintiffs, arguing PAGA claims can only be brought in a representative capacity. Since
we agree with plaintiffs that a trial court cannot dismiss a PAGA claim based on
manageability, we need not address Royalty’s cross-appeal.
1. Manageability
The trial court’s order decertifying the Dyer/Derian meal break subclass
also dismissed “[t]he meal break-related claims that Plaintiffs bring for the Dyer and
Derian locations under [PAGA] . . . because, for the various reasons noted [in the
19
decertification order], there are numerous individualized issues that render Plaintiffs’
7
PAGA meal break claims unmanageable.” Since we conclude a court cannot dismiss a
PAGA claim based on manageability, we reverse this portion of the order and remand for
further proceedings in light of this opinion.
We know of only one published California case that has considered
whether a trial court may dismiss an unmanageable PAGA claim. A recently decided
case, Wesson, supra, 68 Cal.App.5th at pages 765-766, held that “courts have inherent
authority to ensure that PAGA claims can be fairly and efficiently tried and, if necessary,
may strike a claim that cannot be rendered manageable.” It reasoned, “[a] PAGA action
may . . . cover a vast number of employees, each of whom may have markedly different
experiences relevant to the alleged violations. Under those circumstances, determining
whether the employer committed Labor Code violations with respect to each employee
may raise practical difficulties and may prove to be unmanageable.” (Ibid.) “[A] court is
[not] powerless to address the challenges presented by large and complex PAGA actions
and is [not] bound to hold dozens, hundreds, or thousands of minitrials involving diverse
questions, depending on the breadth of the plaintiff’s claims. [C]ourts have inherent
authority to manage litigation with the aim of protecting the parties’ rights and the courts’
ability to function. [Citation.] [T]rial courts may . . . exercise their inherent authority to
ensure the manageability of PAGA claims and, if necessary, may preclude the use of this
procedural device.” (Id. at pp. 766-767.) That is, courts may strike PAGA claims
deemed to be unmanageable.
7
The court’s statement of decision provides “[t]he court did not award PAGA penalties
for Dyer and Derian employees who were not named plaintiffs because plaintiffs failed to
show Labor Code violations as to them.” This failure to find Labor Code violations,
however, was tied to the court’s decision to dismiss the PAGA claim as unmanageable.
The court explained in its oral ruling that it was awarding PAGA penalties to individual
plaintiffs because “there [was] no group of [aggrieved] employees” due to its decision to
decertify the class.
20
Aside from Wesson, federal district courts disagree as to whether PAGA
claims can be struck based on to manageability. Some courts believe allowing dismissal
of unmanageable PAGA claims conflicts with PAGA’s purpose. “PAGA contemplates
civil penalties for ‘a violation’ of the California Labor Code . . . , which will often require
individualized assessments of liability. [Citations.] The purpose of PAGA ‘is to
incentivize private parties to recover civil penalties for the government that otherwise
may not have been assessed and collected by overburdened state enforcement agencies.’
[Citation.] Holding that individualized liability determinations make representative
PAGA actions unmanageable, and therefore untenable, would impose a barrier on such
actions that the state law enforcement agency does not face when it litigates those cases
itself. [Citations.] Imposing such a requirement, found nowhere in PAGA itself and
apparently not imposed upon the government, would ‘obliterate [the] purpose’ of
representative PAGA actions. [Citation.] Seeking civil penalties on behalf of aggrieved
employees may make plaintiff’s case difficult to prove, and may require evidence
regarding a significant number of individual employees. But PAGA actions are unlike
class actions; they are ‘distinct in purpose and function from a purely procedural rule,’
. . . the purpose of PAGA is not ‘to allow a collection of individual plaintiffs to sue the
same defendant in one consolidated action for the sake of convenience and efficiency.’
[Citation.] In short, the imposition of a manageability requirement—which finds its
genesis in [class action procedure]—makes little sense in this context.” (Zackaria v.
Wal-Mart Stores, Inc. (C.D. Cal. 2015) 142 F.Supp.3d 949, 959-960 (Zackaria).)
In contrast, district courts that have struck unmanageable PAGA claims
have done so on similar grounds as Wesson. They believe PAGA claims can be stricken
“where establishing liability based on Labor Code violations would be unmanageable due
to the individualized assessments required to prove violations based on the plaintiff’s
allegations and the defendant’s evidence of the necessary inquiries.” (Amiri v. Cox
Communications California, LLC (C.D. Cal. 2017) 272 F.Supp.3d 1187, 1193-1194.)
21
Like Wesson, these district courts have determined unmanageable PAGA claims can be
struck under the court’s inherent authority. Such power is not “‘“governed . . . by rule or
statute but by the control necessarily vested in courts to manage their own affairs so as to
achieve the orderly and expeditious disposition of cases.”’” (Valadez v. CSX Intermodal
Terminals, Inc. (N.D. Cal. 2018) 298 F.Supp.3d 1254, 1266.)
After reviewing both perspectives, we respectfully disagree with Wesson
and agree with the reasoning of the district courts that have refused to dismiss PAGA
claims based on manageability. As our Supreme Court has clarified, “‘a representative
action under PAGA is not a class action.’” (Kim v. Reins International California, Inc.,
supra, 9 Cal.5th at pp. 86-87.) “The latter is a procedural device for aggregating claims
‘when the parties are numerous, and it is impracticable to bring them all before the
court.’” (Ibid.) In comparison, PAGA claims are administrative law enforcement actions
that “are different from conventional civil suits. The Legislature’s sole purpose in
enacting PAGA was ‘to augment the limited enforcement capability of the [Labor
Workforce Development Agency (LWDA)] by empowering employees to enforce the
Labor Code as representatives of the Agency.’ [Citations.] Accordingly, a PAGA claim
is an enforcement action between the LWDA and the employer, with the PAGA plaintiff
acting on behalf of the government.” (Id. at p. 86.) The civil penalties recovered in a
PAGA action are “recovered on the state’s behalf [and] are intended to ‘remediate
present violations and deter future ones,’ not to redress employees’ injuries.” (Ibid.)
Due to their differences, our Supreme Court has held that PAGA plaintiffs
need not meet class action certification requirements when pursuing PAGA penalties.
(Arias v. Superior Court, supra, 46 Cal.4th at p. 975; see Kim v. Reins International
California, Inc., supra, 9 Cal.5th at pp. 86-87.) As district courts have noted, though,
dismissal of a claim based on manageability is rooted in class action procedure.
(Zackaria, supra, 142 F.Supp.3d at pp. 958-959.) Indeed, manageability is a key
requirement for class certification. (Duran v. U.S. Bank National Assn. (2014) 59 Cal.4th
22
1, 28-29.) Accordingly, requiring that PAGA claims be manageable would graft a crucial
element of class certification onto PAGA claims, undercutting our Supreme Court’s prior
holdings.
Moreover, unlike a typical civil action, PAGA claims are effectively
administrative enforcement actions. The plaintiff acts “as the proxy or agent of the
state’s labor law enforcement agencies” and “represents the same legal right and interest
as state labor law enforcement agencies—namely, recovery of civil penalties that
otherwise would have been assessed and collected by the [LWDA].” (Arias v. Superior
Court, supra, 46 Cal.4th at p. 986.) “PAGA is a civil action only in the sense that its
designated forum is the trial courts. PAGA plaintiffs are still mere proxies for the state,
bringing what would otherwise be an administrative regulatory enforcement action on its
behalf. The action is still subject to the same legal rights and interests as the state.”
(LaFace v. Ralphs Grocery Company (Feb. 18, 2022, B305494) __ Cal.App. 5th__, __
[2022 WL 498847, p. *7] (LaFace).) “[A] PAGA litigant’s status as ‘the proxy or agent’
of the state [citation] is not merely semantic; it reflects a PAGA litigant’s substantive role
in enforcing our labor laws on behalf of state law enforcement agencies.” (Iskanian v.
CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 387-388; Williams v.
Superior Court (2017) 3 Cal.5th 531, 546 [“PAGA was intended to advance the state’s
public policy of affording employees workplaces free of Labor Code violations,
notwithstanding the inability of state agencies to monitor every employer or industry”].)
Allowing courts to dismiss PAGA claims based on manageability would
interfere with PAGA’s express design as a law enforcement mechanism. The LWDA is
not subject to a manageability requirement when it investigates Labor Code violations
and assesses fines internally. (Zackaria, supra, 142 F.Supp.3d at pp. 958-959.) And
“where the LWDA has discretion to assess a civil penalty, the courts are to exercise the
same discretion, subject to the same limitations and conditions as the LWDA.” (LaFace,
supra, __ Cal.App.5th __, __ [2022 WL 498847, at p. *7]; § 2699, subd. (e)(1).)
23
Imposing a manageability requirement would create an extra hurdle in PAGA cases that
does not apply to LWDA enforcement actions. This would undermine PAGA’s purpose
as an “administrative enforcement action conducted in court on behalf of the state by an
aggrieved employee.” (See LaFace, at p. *5; Williams v. Superior Court, supra, 3
Cal.5th at p. 548 [“Hurdles that impede the effective prosecution of representative PAGA
actions undermine the Legislature’s objectives”].)
We understand the concerns expressed in Wesson. Some PAGA claims
involve hundreds or thousands of alleged aggrieved employees, each with unique factual
circumstances. We do not intend our ruling to mean that in such scenarios, a court must
allow for each of these alleged aggrieved employees to be examined at trial. Such a
scenario would be unduly expensive, impractical, and place far too great a burden on our
already busy trial courts. Rather, courts may, where appropriate and within reason, limit
witness testimony and other forms of evidence when determining the number of
violations that occurred and the amount of penalties to assess. (See Code Civ. Proc.,
§ 128, subd. (a)(3) & (8); § 2699, subds. (a), (f) & (g); see also Elkins v. Superior Court
(2007) 41 Cal.4th 1337, 1351-1352.) Consequently, in cases with individualized
circumstances and vast numbers of alleged aggrieved employees, PAGA plaintiffs may
have difficulty proving purported violations suffered by other employees. “At trial,
plaintiff may prove that defendant violated the California Labor Code with respect to the
employees it describes as ‘aggrieved employees,’ some of the employees, or he may not
prove any violations at all. But the fact that proving his claim may be difficult or even
somewhat burdensome for himself and for defendant does not mean that he cannot bring
it at all.” (Zackaria, supra, 142 F.Supp.3d at pp. 959-960.)
This approach may also encourage plaintiffs’ counsel to be prudent in their
approach to PAGA claims and to ensure they can efficiently prove alleged violations to
unrepresented employees. We encourage counsel to work with the trial courts during
trial planning to define a workable group or groups of aggrieved employees for which
24
8
violations can more easily be shown. If PAGA plaintiffs are unable to do so, they risk
being awarded a paltry sum of penalties, if any. Such an outcome is not unfair to the
unrepresented aggrieved employees. Unlike a class action, “absent employees do not
own a personal claim for PAGA civil penalties [citation], and whatever personal claims
the absent employees might have for relief are not at stake [citations].” (Williams v.
Superior Court, supra, 3 Cal.5th at p. 547, fn. 4.) Rather, the civil penalties awarded
under PAGA are “‘intended to punish the wrongdoer and to deter future misconduct.’”
(Raines v. Coastal Pacific Food Distributors, Inc. (2018) 23 Cal.App.5th 667, 681.) If a
plaintiff alleges widespread violations of the Labor Code by an employer in a PAGA
action but cannot prove them in an efficient manner, it does not seem unreasonable for
the punishment assessed to be minimal.
Since we reverse the trial court’s ruling dismissing the PAGA claims as
unmanageable, we need not address Royalty’s argument that the court erred by awarding
PAGA penalties to Dyer/Derian plaintiffs in their individual capacity. On remand, we
direct the court to hold a new trial on this portion of the PAGA claim. Prior to trial, we
direct the parties and court to discuss whether the pool of alleged aggrieved employees
should be narrowed or divided to effectively prove the alleged violations at trial. We also
leave it in the trial court’s discretion to determine whether additional evidence, including
new witnesses, is necessary to determine the extent of the Labor Code violations alleged.
As alluded to above, if plaintiffs are unable to show widespread violations affecting
unrepresented employees in a reasonable manner, the court shall award penalties to the
aggrieved employees to the extent of plaintiffs’ proof.
8
For example, narrowing alleged violations to employees at a single location or
department.
25
C. Statute of limitations for the Porterville Meal Period Claim
The Porterville class’s meal period claim was based on Porterville’s on-
premises meal policy. Plaintiffs first alleged this policy and the related claims in the
TAC. The court ruled these allegations did not relate back to any prior pleading and
applied a four-year statute of limitations on this claim to the TAC’s filing date
(November 17, 2016). It reasoned the SAC only included “two named plaintiffs, both of
whom worked [at Dyer and Derian].” And while these two plaintiffs “could raise issues
common to Porterville like missed or late meal periods or rest violations, they could not”
assert claims based on the on-premises meal policy because it was unique to Porterville.
Based on this finding, the court restricted recovery on this claim to violations occurring at
Porterville between November 17, 2012, and June 14, 2017.
On appeal, plaintiffs contend the Porterville meal period claim relates back
to the SAC, filed on October 22, 2014, which would allow recovery for meal period
violations at Porterville occurring between October 22, 2010, and June 14, 2017. We
agree with plaintiffs and direct the court on remand to recalculate the amount of premium
9
pay owed to the Porterville class for meal period violations based on this earlier date.
1. Applicable law
“An amended complaint is considered a new action for purposes of the
statute of limitations only if the claims do not ‘relate back’ to an earlier, timely filed
complaint. Under the relation-back doctrine, an amendment relates back to the original
complaint if the amendment: (1) rests on the same general set of facts; (2) involves the
same injury; and (3) refers to the same instrumentality. [Citations.] An amended
complaint relates back to an earlier complaint if it is based on the same general set of
facts, even if the plaintiff alleges a different legal theory or new cause of action.
9
Because of this finding, we do not consider plaintiffs’ argument that the SAC tolled the
statute of limitations for this claim.
26
[Citations.] However, the doctrine will not apply if the ‘the plaintiff seeks by amendment
to recover upon a set of facts entirely unrelated to those pleaded in the original
complaint.’” (Pointe San Diego Residential Community, L.P. v. Procopio, Cory,
Hargreaves & Savitch, LLP (2011) 195 Cal.App.4th 265, 276-277 (Pointe San Diego).)
Similarly, “an amended pleading that adds a new plaintiff will not relate back to the filing
of the original complaint if the new party seeks to enforce an independent right or to
impose greater liability against the defendants.” (San Diego Gas & Electric Co. v.
Superior Court (2007) 146 Cal.App.4th 1545, 1550.)
The primary consideration when applying the relation back doctrine is
whether the prior complaint provided the defendant with sufficient notice of the claim in
the amended complaint. (Pointe San Diego, supra, 195 Cal.App.4th at p. 279.) This is
due to the purpose behind statutes of limitation. They are intended to provide defendants
with adequate notice of claims, so they have sufficient time to prepare a defense. This
purpose is met when a new claim is based on the same facts as a prior complaint.
(Scholes v. Lambirth Trucking Co. (2017) 10 Cal.App.5th 590, 599.) Along with this
consideration, though, courts should keep in mind our state’s strong policy of deciding
cases on their merits. (Pointe San Diego, at p. 277.)
Generally, courts have liberally applied the relation-back doctrine. For
example, in Barnes v. Wilson (1974) 40 Cal.App.3d 199 (Barnes), the decedent was the
victim of a stabbing in the Golden Gloves Tavern. His heirs sued the owners of the
Golden Gloves Tavern, alleging they “negligently failed to warn patrons of the
unreasonable risk created by the presence of the assailant and negligently failed to
provide protection for their patrons.” (Id. at p. 201.) The heirs later amended their
complaint to substitute in as doe defendants the owners of a neighboring tavern, the
Copper Door Tavern. The heirs alleged the Copper Door Tavern owners negligently
continued to serve the assailant alcoholic beverages when it was clear he was
27
“excessively intoxicated” and after he had already “brandished a knife and constituted a
danger to himself and to others.” (Id. at p. 202.)
The appellate court found the negligence claims against the Copper Door
Tavern owners related back to the initial complaint against the owners of the Golden
Gloves Tavern. (Barnes, supra, 40 Cal.App.3d at pp. 202-203, 206.) The amended
complaint sought “to hold the [Copper Door Tavern owners] responsible for the same
occurrence and damage alleged in the original complaint.” (Id. at p. 205.) Although “the
original complaint did not contain an allegation that the assailant was intoxicated. . . .
The allegation of excessive intoxication in the amended complaint merely added an
incidental fact reasonably inferable from the facts alleged in the original complaint and
did not result in a statement of ‘a significantly distinct cause of action.’” (Ibid.)
In Idding v. North Bay Construction Co. (1995) 39 Cal.App.4th 1111
(Idding), plaintiff filed a negligence claim arising from injuries sustained in a fall while
working at a project in Stockton. After the statute of limitations expired, he amended his
complaint and alleged he was injured in a completely different project in Napa. (Id. at
pp. 1112-1113.) Despite this change, the court found the amended complaint related
back to the original. It reasoned, the “amended complaint, by seeking recovery for the
same accident and injuries as the original complaint, but merely changing the situs of the
accident,” arose from “the same ‘general set of facts.’” (Id. at p. 1114.)
In Pointe San Diego, plaintiffs filed a form complaint against their former
attorney alleging professional negligence. They checked a box marked “General
Negligence” on the form and “included an attachment alleging defendants were the ‘legal
(proximate) cause of damages to plaintiff[s]’ and ‘[b]y the following acts or omissions to
act, defendant negligently caused the damage to plaintiff.’” In a section for describing
the reasons for liability, plaintiffs stated that “‘Defendant[], as Plaintiffs’ attorneys, failed
to use due care in the handling of [certain] litigation.’” (Pointe San Diego, supra, 195
28
Cal.App.4th at p. 277.) Plaintiffs later amended the complaint to add more details about
the nature of the alleged negligence. (Id. at pp. 272-273.)
The court found the new allegations in the amended complaint related back
to the general allegations in the initial form complaint. Because the initial complaint
clearly alleged the matter in which the defendant had represented the plaintiff, the
defendant “was put on notice that the professional negligence claim was based on its
representation of plaintiffs in this case, and of the need to gather and preserve evidence
relating to this representation.” (Id. at p. 278.) “Although the original complaint did not
detail how the firm had allegedly breached the standard of care, the form complaint and
the . . . amended complaint rested on the same general set of facts ([defendant’s]
prosecution of the [prior] litigation), involved the same injury (monetary damages
sustained as a result of alleged professional negligence), and referred to the same
instrumentality (alleged professional negligence).” (Ibid.)
In contrast to these cases, Royalty cites McCauley v. Howard Jarvis
Taxpayers Assn. (1998) 68 Cal.App.4th 1255, in which the plaintiff filed a complaint
against the defendant for violating reporting requirements governing political campaigns.
The plaintiff’s claim was based on a single violation: the defendant’s failure to report
financial information for a specific committee it had formed relating to a 1984 ballot
proposition. Years later, the plaintiff filed an amended complaint that added different
reporting law violations relating to a proposition on the 1986 ballot. (Id. at pp. 1258-
1259.) The court found these new allegations did not relate back because each reporting
violation was a discrete event, not part of a continuing violation. (Id. at pp. 1262-1263.)
“[D]ifferent acts leading to distinct injuries are not part of the ‘same general set of
facts.’” (Id. at p. 1262.)
29
2. Analysis
Since plaintiffs’ argument involves the application of law to undisputed
facts, our review is de novo. (Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th
1185, 1191.) We begin by comparing the allegations in the two complaints.
Though the named plaintiffs in the SAC were from Dyer and Derian, their
proposed class covered Porterville employees. It included “[a]ll current and former
nonexempt employees of [Royalty] who worked in its carpet manufacturing and
warehouse facilities in California at any time from December 13, 2009, through the date
of judgment.” The SAC identified Porterville as one of these facilities. With regard to
the class’s meal period claims, the SAC generally alleged Royalty “[f]ail[ed] to provide
employees with timely and proper meal periods, and fail[ed] to pay employees an hour
of pay for failing to provide such meal periods . . . .” (Italics added.) Likewise, the SAC
alleged a common question of law involved “[w]hether Royalty . . . failed to provide
timely and proper meal periods to employees, or pay premium wages, in lieu of
providing such periods.” (Italics added.) The SAC also contained more specific
descriptions of the meal period violations: “[Royalty] did not timely provide many
employees with either their first or second 30-minute ‘duty free’ meal periods for a
substantial number of days, and did not pay its employees the additional hour of premium
wages for each workday the meal periods were not provided.”
The proposed class in the TAC was substantially the same as the SAC. The
TAC also contained similar general allegations regarding the meal period violations, such
as, “Royalty had a company-wide policy and practice of . . . failing to provide employees
with timely and proper meal periods and rest periods, and failing to pay employees
premium pay when they were not provided such meal and rest periods.” (Italics added.)
It also contained more specific allegations that Royalty failed to provide employees with
timely first and second meal periods. But the TAC added new allegations about
Porterville’s on-premises meal policy. For example, it alleged that “[a]t Porterville,
30
Royalty also had a long standing policy of requiring employees to take their meal periods
in the company lunch room. . . . This prevented employees from leaving the facility to
take their meal periods.” In the TAC, plaintiffs sought premium pay for Porterville
workers based on this allegedly unlawful policy.
Based on these allegations, this case has more in common with Barnes,
Idding, and Pointe San Diego than McCauley. The amended complaints in Barnes,
Idding, and Pointe San Diego added related facts that expanded upon the core facts of the
initial complaint or corrected information from the initial complaint. Crucially, though,
these new allegations were still grounded in the same accident, injury, and
instrumentality. In Barnes, the allegations regarding negligent service of alcohol to the
assailant all pertained to the victim’s death caused by the assailant’s stabbing. In Idding,
although the plaintiff identified the wrong project in his initial complaint, his amended
complaint still sought relief for the same incident: a fall sustained at a worksite. Finally,
in Pointe San Diego, the amended complaint related back because it only added more
details concerning the malpractice that was broadly alleged in the initial complaint.
Like these cases, the Porterville meal period claim alleged in the TAC is
based in same facts, injury, and instrumentality as the SAC’s meal period claims:
Royalty failed to provide its employees at Dyer, Derian, and Porterville with proper meal
periods and failed to provide premium pay under section § 226.7. The exact nature of the
noncompliant meal periods at Dyer and Derian (untimely meal periods) was different
than Porterville (on-premises meals). But these two theories are still grounded in
plaintiffs’ overall allegations that Royalty was not providing its employees at the three
facilities with compliant meal periods and was not providing premium pay over the same
period. Consequently, adding allegations about Porterville’s on-premises meal policy in
the TAC was akin to the incidental details added in Barnes and Pointe San Diego or the
correction of the worksite in Idding. Unlike McCauley, the new allegations in the TAC
were not discrete violations. Rather, they built upon the allegations in the SAC that
31
Royalty “[f]ail[ed] to provide employees with timely and proper meal periods, and
fail[ed] to pay employees an hour of pay for failing to provide such meal periods . . . .”
Further, the SAC provided sufficient notice to Royalty of the on-premises
meal policy claims in the TAC. The SAC put Royalty on notice that plaintiffs were
seeking premium pay for Dyer, Derian, and Porterville employees based on noncompliant
meal periods. While the SAC also specified Royalty’s meal periods were noncompliant
because they were untimely, it did not state this was the only way meal periods had been
noncompliant. There was sufficient information in the SAC “to permit [Royalty] to
gather and preserve the relevant materials and begin to conduct discovery and prepare a
defense to the claims that were later refined and augmented in the amended complaints.”
(Pointe San Diego, supra, 195 Cal.App.4th at p. 278.) Based on the SAC, Royalty
“could have . . . engaged in discovery to seek information about the exact factual basis
for the . . . claim.” (Id. at p. 279.)
Royalty also argues the SAC had no valid class representative for a claim
based on the on-premises meal policy, since neither of the SAC’s named plaintiffs
worked at Porterville. However, “if the cause of action alleged against the defendant
would not be wholly different after amendment, a complaint filed by a party without
standing may be amended to substitute in the real party in interest.” (CashCall, Inc. v.
Superior Court (2008) 159 Cal.App.4th 273, 287-288.) “‘[A]n amendment to substitute
in the real party in interest is entitled to relation-back effect. The effect of plaintiff’s lack
of standing . . . [is] simply that plaintiff need[s] to amend [the complaint to substitute in a
real party in interest as plaintiff].’ [Citations.] Therefore, ‘[i]n general, courts liberally
allow amendments for the purpose of permitting plaintiffs who lack or have lost standing
to substitute as plaintiffs the true real parties in interest.’” (Ibid., italics omitted.) Since
the on-premises meal policy claim in the TAC relates back to the SAC, it was permissible
for plaintiffs to amend the SAC and add Porterville employees with standing to bring it.
32
D. Decertification of the Dyer/Derian Meal Period Subclass
1. The trial court’s ruling
Initially, the trial court certified subclasses for the Dyer/Derian meal period
claims, stating there were common issues as to whether plaintiffs were “provided timely
first meal periods” and/or “deprived of second meal periods.” But following the
presentation of evidence at trial, the court decertified these subclasses, finding too many
10
individualized issues to support class treatment. Plaintiffs argue this decision must be
reversed. We agree. When the trial court made its ruling, it did not have the benefit of
Donohue, which established a rebuttable presumption affecting the burden of proof on
these claims. (Donohue, supra, 11 Cal.5th at p. 61.) We reverse the court’s
decertification order and remand this case so these claims may be retried in light of the
Donohue presumption.
“The party advocating class treatment must demonstrate the existence of an
ascertainable and sufficiently numerous class, a well-defined community of interest, and
substantial benefits from certification that render proceeding as a class superior to the
alternatives. [Citations.] ‘In turn, the “community of interest requirement embodies
three factors: (1) predominant common questions of law or fact; (2) class representatives
with claims or defenses typical of the class; and (3) class representatives who can
adequately represent the class.”’” (Brinker, supra, 53 Cal.4th at p. 1021.) “In an
exception to a customary rule of appellate practice, we review the court’s rationale for its
order. (The customary rule is to review the result of the court’s order, not its rationale.)
[Citations.] We thus review only the reasons the court stated for its order, and we reverse
10
Though the court’s initial certification order created a single meal period subclass, the
court’s decertification order appears to treat the first and second meal period issues as
two separate subclasses. Thus, we also treat these issues as separate subclasses.
33
if those reasons do not support the order.” (Williams v. Superior Court (2013) 221
Cal.App.4th 1353, 1361.)
Here, the court’s decertification order was based on a finding that the
Dyer/Derian meal period claims involved too many individualized issues, i.e., the claims
lacked predominant common questions. Central to the court’s analysis was its belief that
employee choice was a significant factor with respect to late and missed meal breaks. As
to the late first meal periods, it found “[t]he evidence submitted at trial showed wide
variations among different departments, shifts, and job positions regarding the timing of
first meal breaks.” The court noted that “[p]laintiffs’ position is that despite those wide
variations, every time an employee took a late meal it was because Royalty would not
allow the employee to take a timely meal but insisted that the employee be relieved by
another employee or finish their work before taking the meal.” But the court credited
evidence showing “various employees did not need to be relieved or finish their work in
order to take a meal break” and concluded that employee choice was a significant factor
leading to late meal breaks. “The issue of employee choice compels the conclusion that
different departments, job positions, and/or shifts, and the various work duties/needs of
those different departments, job positions, and/or shifts, handled meal breaks differently.
[T]hese realities cut against class treatment . . . .”
As to the missed second meal periods, the court explained, “[t]he evidence
shows that employee choice was a significant factor with respect to taking second meal
breaks, and that some employees wanted to skip second meal breaks so that they could
leave earlier at the end of the day. By illustration, 30 percent of the workdays over 10
hours did not exceed 10 hours and 15 minutes. Accordingly, the second meal break
subclass presents too many individualized issues to support class treatment.”
Where a certification ruling is based on predominance of common
questions, “the ‘ultimate question’ . . . is whether ‘the issues which may be jointly tried,
when compared with those requiring separate adjudication, are so numerous or
34
substantial that the maintenance of a class action would be advantageous to the judicial
process and to the litigants.’ [Citations.] ‘The answer hinges on “whether the theory of
recovery advanced by the proponents of certification is, as an analytical matter, likely to
prove amenable to class treatment.” [Citation.] . . . “As a general rule if the defendant’s
liability can be determined by facts common to all members of the class, a class will be
certified even if the members must individually prove their damages.” [Citations.]’
However, . . . class treatment is not appropriate ‘if every member of the alleged class
would be required to litigate numerous and substantial questions determining his
individual right to recover following the “class judgment”’ on common issues.” (Duran
v. U.S. Bank National Assn., supra, 59 Cal.4th at p. 28.) In other words, “[t]he granting
of class certification . . . requires a determination that group, rather than individual, issues
predominate.” (Ibid.)
The court’s decertification order is reviewed for an abuse of discretion.
(Dynamex Operations W. v. Superior Court (2018) 4 Cal.5th 903, 942, fn. 16.) It
“‘generally will not be disturbed unless (1) it is unsupported by substantial evidence, (2)
it rests on improper criteria, or (3) it rests on erroneous legal assumptions.’” (Brinker,
supra, 53 Cal.4th at p.1022.) As to the latter two grounds, “‘“[a]ll exercises of discretion
must be guided by applicable legal principles . . . . [Citations.] If the court’s decision is
influenced by an erroneous understanding of applicable law or reflects an unawareness of
the full scope of its discretion, the court has not properly exercised its discretion under
the law. [Citation.] Therefore, a discretionary order based on an application of improper
criteria or incorrect legal assumptions is not an exercise of informed discretion and is
35
subject to reversal.”’” (Kramer v. Traditional Escrow, Inc. (2020) 56 Cal.App.5th 13,
27.)
2. Analysis
In the wage and hour context, a class may establish commonality by
showing a uniform policy or practice that causes members to miss or take late meal
breaks. (See Brinker, supra, 53 Cal.4th at pp. 1051-1052; Lampe v. Queen of the Valley
Medical Center, supra, 19 Cal.App.5th at pp. 848-849.) Here, Royalty’s employee
handbook during the relevant time period contained a lawful policy for scheduling first
meal periods: “[Royalty] will provide you a thirty minute (30) meal period if you work
more than five (5) hours in a workday. . . . Your supervisor will schedule your meal
period approximately between the 3rd and 5th hour of work.” Likewise, the handbook
stated it was Royalty’s policy to provide second meal breaks: “[Royalty] will provide
you a second meal period of thirty minutes (30) if you work more than ten (10) hours in a
workday.” Nonetheless, “the mere existence of a lawful break policy will not defeat class
certification in the face of actual contravening policies and practices that, as a practical
matter, undermine the written policy and do not permit breaks.” (Alberts v. Aurora
Behavioral Health Care (2015) 241 Cal.App.4th 388, 406-407.)
Faced with Royalty’s written policies, plaintiffs’ theory of liability at trial
centered around informal policy. They argued supervisors at Royalty controlled meal
period decisions and scheduled late first meal periods and failed to provide second meal
periods. In particular, plaintiffs claimed violations occurred based on an informal policy
requiring employees to finish their work or be relieved by another employee prior to
taking meal breaks. They supported their theory with evidence of violation rates derived
from timekeeping records. Prior to the filing of this lawsuit in December 2013, there
were late first meal violation rates of 69 and 70 percent at Dyer and Derian, respectively.
After this lawsuit was filed, these violation rates dropped to 11 percent at Dyer and 7
36
percent at Derian. Plaintiffs assert this sudden drop is evidence of employer control. As
for second meal periods, they were unrecorded 98 percent of the time at Dyer and 99.6
percent of the time at Derian. These rates remained the same after this lawsuit was filed.
After the trial court entered judgment in this case, our Supreme Court
decided Donohue, which discussed the use of timekeeping records in wage and hour class
actions. It held that “[i]f time records show missed, short, or delayed meal periods with
no indication” that premium pay was provided, then a rebuttable presumption arises that
the employee was not provided a compliant meal period. (Donohue, supra, 11 Cal.5th at
p. 77; id. at p. 74.) “The presumption derives from an employer’s duty to maintain
accurate records of meal periods.” (Id. at p. 76.) “‘To place the burden elsewhere would
offer an employer an incentive to avoid its recording duty and a potential windfall from
the failure to record meal periods.’ [Citation.] ‘“‘[W]here the employer has failed to
keep records required by statute, the consequences for such failure should fall on the
employer, not the employee.””” (Ibid.) “Employers can rebut the presumption by
presenting evidence that employees . . . had in fact been provided compliant meal periods
during which they chose to work. ‘Representative testimony, surveys, and statistical
analysis,’ along with other types of evidence, ‘are available as tools to render manageable
determinations of the extent of liability.’” (Id. at p. 77.)
The Donohue presumption is not entirely new. It can be traced back to
Brinker, in which Justice Werdegar provided a concurring opinion rejecting the
employer-defendant’s argument “that the question why a meal period was missed renders
meal period claims categorically uncertifiable.” (Brinker, supra, 53 Cal.4th at p. 1052
(conc. opn. of Werdegar, J.).) Justice Werdegar explained, “such a per se bar would be
inconsistent with the law governing reporting obligations and our historic endorsement of
a variety of methods that render collective actions judicially manageable.” (Ibid.)
Rather, “[i]f an employer’s 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
37
period was provided. . . . An employer’s assertion that it did relieve the employee of
duty, but the employee waived the opportunity to have a work-free break, is not an
element that a plaintiff must disprove as part of the plaintiff’s case-in-chief.” (Id. at pp.
1052-1053.)
Donohue expressly adopted Justice Werdegar’s concurrence and explained
“the presumption goes to the question of liability and applies at the summary judgment
stage, not just at the class certification stage.” (Donohue, supra, 11 Cal.5th at pp. 75-76.)
Royalty reads Donohue narrowly and maintains the presumption only applies at these two
stages of an action. We disagree. Significantly, nothing in Donohue expressly limits the
application of the presumption to these stages. And given that it affects liability (ibid; see
id. at p. 78), we see no reason why the presumption would not apply at trial. Further, the
wording of the court’s holding suggests the presumption applies beyond summary
judgment and class certification: “[W]e hold that time records showing noncompliant
meal periods raise a rebuttable presumption of meal period violations, including at the
summary judgment stage.” (Id. at p. 61, italics added.) It can be inferred from the broad
language used in the initial portion of the sentence that the presumption affects all stages
of a case after it is raised. The italicized language contained in the latter portion of the
sentence denotes Donohue only sought to clarify that this includes summary judgment.
Prior to Donohue, Justice Werdegar’s concurrence had been cited by
several appellate courts. (Donohue, supra, 11 Cal.5th at p. 75 [listing cases].) But it does
not appear the trial court applied the presumption here. While the court acknowledged
the presumption at the hearing on Royalty’s mid-trial decertification motion, its
decertification order does not mention it. More so, the order states the meal period
subclasses were being decertified because “Plaintiffs fail[ed] to satisfy their burden to
establish commonality or predominance.” (Italics added.) But, under Donohue, plaintiffs
met their burden by presenting the time record evidence cited above. Based on that
evidence, the court should have presumed Royalty’s liability in providing late first meal
38
periods and failing to provide second meal periods. The burden would then have shifted
to Royalty to show that plaintiffs were provided with compliant meal periods but chose to
work instead. (Id. at p. 78; see Brinker, supra, 53 Cal.4th at pp. 1052-1054 (conc. opn. of
Werdegar, J.).) It then follows that the burden would have been on Royalty, not
plaintiffs, to show individual issues predominated. Thus, following Donohue, the court’s
decertification order relies on erroneous legal assumptions and is subject to reversal.
Further, this error was prejudicial. “An error is prejudicial . . . if the
reviewing court concludes, based on its review of the entire record, that it is reasonably
probable that the trial court would have reached a result more favorable to the appellant
absent the error.” (Jones v. Farmers Ins. Exchange (2013) 221 Cal.App.4th 986, 999.)
Significantly, “‘“[r]easonable probability”’ means ‘merely a reasonable chance, more
than an abstract possibility,’ a ‘“probability sufficient to undermine confidence in the
outcome.”’” (Haytasingh v. City of San Diego (2021) 66 Cal.App.5th 429, 467-468.)
And unlike substantial evidence review, we consider the weight of the evidence when
determining whether the error was prejudicial. (People v. Vasquez (2017) 14 Cal.App.5th
1019, 1024, fn. 6.)
Though Royalty was required to put on its defense, as stated in the
decertification order, the trial court’s ruling was driven by plaintiffs’ failure to establish
commonality or predominance. This conclusion was primarily driven by the court’s
finding that employee choice led to a significant amount of late or missed meal breaks.
But the court may have ruled differently had its analysis started from the presumption
that Royalty was liable for these meal period violations and had the burden of showing
otherwise. Based on the record, this case was close enough that there is a reasonable
likelihood the failure to shift the burden affected the outcome.
For example, one of plaintiffs’ theories at trial was that first meal periods
were taken late because Royalty required workers to be relieved or finish their work prior
to taking meal breaks. The court rejected it, finding “various employees did not need to
39
be relieved or finish their work in order to take a meal break, and that employee choice
was a significant factor with respect to taking meal breaks.” It appears this finding was
materially influenced by the testimony of five employees, four of which were named
plaintiffs. In particular, the court focused on inconsistent testimony given by several of
11
these witnesses. In addressing the evidence relevant to plaintiffs’ theory above, the
court observed one of plaintiffs’ witnesses “first . . . said she had to be relieved to take a
meal break. Then she said she didn’t take a meal break after working five hours in a day.
Then she said the opposite, that she did get meal breaks like three times a week. So she
changed her testimony. On a dime.” Likewise, the court noted another of plaintiffs’
witnesses “gave three different answers right in a row on this topic regarding how often”
his manager told him he could not take lunch before finishing his work. It also
highlighted another witness’s testimony that his “supervisor did not tell him when to take
meal break. Took meal break after five hours. Not his decision; supervisor’s. So that
sounds like changing his testimony relatively quickly.”
That the court spent significant time pointing out this inconsistent
testimony causes us to believe it was a material factor in the court’s finding that
employee choice created too many individualized issues. Once the Donohue presumption
was raised, though, plaintiffs no longer had the burden of proving a theory of class
liability. Rather, it would have been presumed from the time records that Royalty had
provided untimely meal periods to its employees and was liable for those violations.
(Donohue, supra, 11 Cal.5th at pp. 74, 77.) Put differently, class liability would be
presumed. The burden would then be on Royalty to show it gave employees compliant
meal breaks that were voluntarily not taken. In this scenario, we are not reasonably
11
The five witnesses were Octavio Molina Chavez and Dyer/Derian plaintiffs Paulina
Nava Medina, Martin Garcia, Jose Garcia, and Juan Ortiz Lopez. Many of the witnesses
at trial, including these five, required interpreters, which may have contributed to the
inconsistent testimony.
40
certain the conflicting testimony of five employees, from a class of 215 employees,
would still have led the court to conclude that employee choice was a significant factor
and created too many individualized issues. Rather, there is a reasonable probability the
court would have reached a different result based on this evidence. Our confidence in the
court’s ruling is sufficiently undermined to find prejudice.
Similarly, as to the missed second meal period claims, the court’s ruling
was based on evidence that some employees wanted to skip second meal breaks so they
could leave earlier in the day. But, again, this ruling was based on the erroneous belief
that plaintiffs had the burden of showing second meal breaks were not given and
establishing a theory of class liability. Instead, it was Royalty’s burden to show it
provided second meal periods and that a material number of employees chose to skip
them.
At trial, there was some evidence directly showing employees voluntarily
chose to skip second meal breaks, but it was not entirely persuasive. Royalty had waivers
signed by three different employees – Juan Martinez, Agustin Mendoza, and Alberto
Ventura. But one of these employees, Ventura, had previously submitted a declaration
indicating his waiver was involuntary: “if my co-workers and I worked more than 10
hours in a day, [our supervisors] . . . require[d] us to sign a document stating that we
waived our second meal break.”
Royalty also called two employees to testify at trial. One witness said he
was unaware of his right to a second meal break. The other witness, a lead employee,
testified he waived his second meal break so he could leave early, and he also stated an
indefinite number of employees sometimes told him they wanted to skip their second
meal break. But this same employee also testified he was unaware of employees’ right to
a second meal break for a substantial portion of the class period:
“Q: During the period of December 2009 to November 2013, did you
sometimes work shifts that lasted more than 10 hours?
41
“A: Yes.
“Q: And on those occasions, is it correct that you understood you had a
right to take a second meal break?
“A: No.”
This lead employee had also previously submitted a declaration signed in
June 2015, stating that “[employees] were informed that we have a right to a second meal
break, but I independently decided to waive the second meal break.” At trial, however,
he disclosed Royalty had only begun informing employees of their right to a second meal
break at the time he signed the declaration, i.e., around June 2015. He also revealed his
declaration had been prepared by an attorney and that he signed it “[f]or fear of having
retaliation and fear of losing my job.”
Had the court applied the presumption, the burden would have been on
Royalty to show a significant number of employees voluntarily chose to skip their meal
breaks, creating individualized issues of liability. Based on Royalty’s above evidence,
we are not reasonably certain the court would have still ruled in favor of Royalty had the
burden been shifted. It is true the court also inferred a significant number of employees
voluntarily chose to skip second meal periods based on data showing 30 percent of the
relevant workdays were only between 10 hours and 10 hours and 15 minutes long. But it
appears this inference was at least partially influenced by the aforementioned anecdotal
evidence from witnesses. And even if it was not, it is unclear how much of the court’s
ruling was based on witness testimony versus statistical data. Besides, employees cannot
voluntarily skip second meal periods if they are unaware of their legal right to take them.
Accordingly, we conclude there is a reasonable chance the court would have reached a
different result had the presumption been applied.
For the above reasons, we reverse the trial court’s decision to decertify the
Dyer/Derian meal period subclasses. On remand, we direct the trial court to apply the
42
Donohue presumption and hold a new trial in light of this opinion to determine whether
class liability is appropriate on these claims and, if so, the amount of defendant’s liability.
E. Prejudgment Interest Rate
The trial court awarded premium pay under section 226.7 for meal period
violations to the Porterville class. It granted prejudgment interest on these sums at a rate
of seven percent, but plaintiffs maintain a 10 percent rate should have been applied. The
12
court used the correct rate.
“The primary purpose of an award of prejudgment interest is to compensate
the plaintiff for the loss of use of money during the period before the entry of judgment,
in order to make the plaintiff whole. [Citations.] Absent a statutory provision
specifically governing the type of claim at issue, the prejudgment interest rate is 7 percent
. . . .” (Bullock v. Philip Morris USA, Inc. (2011) 198 Cal.App.4th 543, 573.) Plaintiffs
believe section 218.6 applies here, which states “[i]n any action brought for the
nonpayment of wages, the court shall award interest on all due and unpaid wages at the
rate of interest specified in subdivision (b) of Section 3289 of the Civil Code . . . .”
(Italics added.) Under Civil Code section 3289, subdivision (b), a 10 percent
prejudgment interest rate is applied in breach of contract cases in which the contract does
not contain a governing provision.
The resolution of this issue turns on whether plaintiffs’ claim for premium
pay under section 226.7 is “an action brought for the nonpayment of wages,” as required
by section 218.6. It is not. While our Supreme Court has held that premium pay is a
wage and not a penalty, it has clarified “a section 226.7 claim is not an action brought for
nonpayment of wages; it is an action brought for nonprovision of meal or rest breaks.”
12
Plaintiffs also assert the court applied the incorrect interest rate to the individual
premium pay awards granted to the named Dyer/Derian plaintiffs for their meal period
claims. Given our reversal of the court’s decertification order, however, these individual
awards are also reversed.
43
(Kirby v. Immoos Fire Protection, Inc., supra, 53 Cal.4th at pp. 1256-1257.)
“Nonpayment of wages is not the gravamen of a section 226.7 violation. Instead,
subdivision (a) of section 226.7 defines a legal violation solely by reference to an
employer’s obligation to provide meal and rest breaks. [Citation.] The ‘additional hour
of pay’ provided for in subdivision (b) is the legal remedy for a violation of subdivision
(a), but whether or not it has been paid is irrelevant to whether section 226.7 was
violated.” (Ibid.) Rather, it is “[t]he failure to provide required meal and rest breaks
[that] triggers a violation of section 226.7.” (Ibid.)
Citing Bell v. Farmers Ins. Exchange (2006) 135 Cal.App.4th 1138,
plaintiffs also appear to suggest that if section 218.6 is inapplicable, a 10 percent rate
should be applied under Civil Code section 3289, subdivision (b). In Bell, the trial court
awarded a class over $90 million in unpaid overtime compensation plus 10 percent
prejudgment interest under Civil Code section 3289. (Bell, at p. 1141.) The defendant
claimed this rate was incorrect because the 10 percent rate was first authorized by section
218.6, which had gone into effect shortly before judgment was entered. It sought to
apply a seven percent interest rate to the period before the effective date of section 218.6,
and a 10 percent rate to the period after. (Bell, at p. 1142.) The appellate court disagreed
and affirmed the trial court, finding section 218.6 merely clarified existing law: “Before
section 218.6 expressly required the use of the breach-of-contract rate for prejudgment
interest, this rate was still the appropriate rate for unpaid wage claims [under Civil Code
section 3289] because of the contractual nature of the employment relationship.” (Ibid.,
italics added.)
We are unpersuaded by Bell, which merely clarified that claims for unpaid
wages were already subject to a prejudgment interest rate of 10 percent under Civil Code
section 3289, subdivision (b), prior to the effective date of section 218.6. We do not read
Bell to imbue Civil Code section 3289, subdivision (b) with more expansive rights than
section 218.6 in the context of this lawsuit. Since plaintiffs are not entitled to 10 percent
44
interest under section 218.6, they are not entitled to it under Civil Code section 3289,
subdivision (b).
F. Derivative Penalties for Porterville Employees
1. Waiting time penalties
“‘If an employer discharges an employee, the wages earned and unpaid at
the time of discharge are due and payable immediately.’” (Kao v. Holiday (2017) 12
Cal.App.5th 947, 962.) As explained by Kao, under section 203, subdivision (a), “‘[i]f an
employer willfully fails to pay . . . any wages of an employee who is discharged . . . , the
wages of the employee shall continue as a penalty from the due date thereof at the same
rate until paid or until an action therefor is commenced; but the wages shall not continue
for more than 30 days.’ [Citation.] ‘The plain purpose of . . . sections 201 and 203 is to
compel the immediate payment of earned wages upon a discharge.’” (Ibid, italics added.)
Because Royalty failed to provide premium pay to Porterville employees for meal break
violations when they were separated from employment, plaintiffs believe the Porterville
class is owed waiting time penalties under section 203. Not so.
It is currently unclear whether an employee can pursue derivative waiting
time penalties based on an employer’s failure to provide premium pay at separation. In
Naranjo v. Spectrum Security Services, Inc. (2019) 40 Cal.App.5th 444, 474, the Second
District held that regardless of willfulness, “section 226.7 actions do not entitle
employees to pursue the derivative penalties in section[] 203.” This holding was based
on the Naranjo court’s interpretation of the meaning of “wages” within section 203,
which was based on the definitions of “wages” and “labor” provided in section 200,
13
subdivisions (a) and (b). (Naranjo, at pp. 473-474.) Naranjo is currently under review.
13
Naranjo similarly found employees could not pursue derivative wage statement
penalties (§ 226, subd. (e)(1)), based on section 226.7 actions for premium pay. (Naranjo
v. Spectrum Security Services, Inc., supra, 40 Cal.App.5th at p. 474.)
45
(Naranjo v. Spectrum Security Services (Jan. 2, 2020, S258966) __Cal.5th __, __.)
Plaintiffs appear to believe our Supreme Court’s impending decision in Naranjo will be
dispositive here. Addressing Naranjo’s analysis, they argue premium pay under section
226.7 constitutes wages earned under section 203, entitling them to premium pay. But
we need not address Naranjo. Here, even if premium pay is a wage under section 203, no
violation occurred because Royalty’s failure to provide premium pay was not willful.
“A willful failure to pay wages within the meaning of Labor Code Section
203 occurs when an employer intentionally fails to pay wages to an employee when those
wages are due. However, a good faith dispute that any wages are due will preclude
imposition of waiting time penalties under Section 203.” (Cal. Code Regs., tit. 8,
§ 13520.) “A ‘good faith dispute’ that any wages are due occurs when an employer
presents a defense, based in law or fact which, if successful, would preclude any recovery
on the part of the employee. The fact that a defense is ultimately unsuccessful will not
preclude a finding that a good faith dispute did exist. Defenses presented which, under
all the circumstances, are unsupported by any evidence, are unreasonable, or are
presented in bad faith, will preclude a finding of a ‘good faith dispute.’” (Cal. Code
Regs., tit. 8, § 13520, subd. (a).) An objective standard is applied. (Maldonado v.
Epsilon Plastics, Inc. (2018) 22 Cal.App.5th 1308, 1332.)
As set forth above in discussion part II.A.3. regarding the settlement
releases, there was a good faith dispute as to whether Royalty’s on-premises meal policy
was lawful and whether Porterville employees were owed premium pay based on this
policy. Therefore, Royalty’s failure to provide premium pay to Porterville employees
upon separation was not willful, and it is not liable for any derivative waiting time
penalties.
46
2. Wage statement penalties
Under section 226, subdivision (a), employers must furnish employees with
accurate itemized wage statements showing, among other things, all gross and net wages
earned. “An employee suffering injury as a result of a knowing and intentional failure by
an employer to comply with subdivision (a) is entitled to recover the greater of all actual
damages or fifty dollars ($50) for the initial pay period in which a violation occurs and
one hundred dollars ($100) per employee for each violation in a subsequent pay period,
not to exceed an aggregate penalty of four thousand dollars ($4,000), and is entitled to an
award of costs and reasonable attorney’s fees.” (§ 226, subd. (e)(1).)
Plaintiffs’ derivative wage statement claim is again based on Royalty’s on-
premises meal policy. They contend the Porterville class’s wage statements failed to
reflect the premium pay they were owed due to this unlawful policy. The trial court
denied this claim under Maldonado v. Epsilon Plastics. Inc., supra, 22 Cal.App.5th 1308.
As described by the trial court, Maldonado “held that no wage statement penalties should
be imposed for statements that accurately reflect the basis for the particular paycheck.
Plaintiffs admitted that their wage statement claim was a derivative one, conceding that
although the statements accurately showed what defendant’s employees were paid, the
wage statements were allegedly inaccurate only because they should have included
additional pay. The Maldonado court rejected this argument, and that holding applies
here.”
Plaintiffs fail to meet their “burden to affirmatively show error. [Citation.]
To demonstrate error, appellant must present meaningful legal analysis supported by
citations to authority and citations to facts in the record that support the claim of error.”
(In re S.C. (2006) 138 Cal.App.4th 396, 408.) Plaintiffs do not discuss the court’s
analysis of their wage statement claim. They fail to even cite Maldonado in their briefs.
Rather, they insist premium pay under section 226.7 is wages earned under section 226,
subdivision (a), and should have been included on the wage statements of Porterville
47
employees. But this argument does not address the court’s ruling, which found no
liability based on plaintiffs’ concession that their wage statements accurately reflected
what they were actually paid.
In fact, Royalty’s respondent’s brief highlighted plaintiffs’ failure to
discuss the court’s reasoning in their opening brief. Plaintiffs’ reply brief did not just
ignore this contention, it failed to include any argument on the wage statement claim.
Since plaintiffs have made no attempt to show any error in the court’s analysis, their
“brief effectively asks the appellate court to become [their] lawyer. A court cannot fairly
embrace this partisan role.” (Singman v. IMDB.com, Inc. (2021) 72 Cal.App.5th 1150,
1151.)
III
DISPOSITION
We reverse the trial court’s order decertifying the Dyer/Derian meal period
subclasses and dismissing the portion of the Dyer/Derian PAGA claim based on meal
period violations. On remand, the court shall hold a new trial on both claims. As to both,
we leave it in the court’s discretion to determine whether additional witnesses or other
evidence will be allowed in light of the principles set forth in this opinion.
As to the judgment, first, we reverse the portion limiting recovery on the
Porterville class’s meal period claim to violations occurring between November 17, 2012,
through June 14, 2017, and restricting the class period to these dates. On remand, the
court shall recalculate damages on this claim so they reflect meal period violations
occurring at Porterville between October 22, 2010, and June 14, 2017, and it shall expand
the class period for this claim accordingly. Second, the portion of the judgment awarding
individual PAGA penalties to plaintiffs Jorge Luis Estrada, Paulina Nava Medina, Jose
Garcia, and Martin Garcia is reversed based on our finding that the court improperly
dismissed their representative PAGA claim as unmanageable. Finally, we reverse any
48
portion of the judgment that is inconsistent with this opinion. The judgment is affirmed
in all other respects. Each party shall bear their own costs on this appeal.
MOORE, ACTING P. J.
WE CONCUR:
GOETHALS, J.
ZELON, J.*
*Retired Justice of the Court of Appeal, Second Appellate District, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
49