Opinion
B225931
09-13-2011
RICARDO ACUNA et al., Plaintiffs and Appellants, v. FS HOTELS (LA), INC., Defendant and Respondent.
Law Offices of Rob Hennig and Rob Hennig for Plaintiffs and Appellants. Stokes, Roberts & Wagner, Peter B. Maretz, David E. Amaya and Arch Y. Stokes for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BC395269)
APPEAL from an order of the Superior Court of Los Angeles County, Rita J. Miller, Judge. Affirmed.
Law Offices of Rob Hennig and Rob Hennig for Plaintiffs and Appellants.
Stokes, Roberts & Wagner, Peter B. Maretz, David E. Amaya and Arch Y. Stokes for Defendant and Respondent.
In this wage and hour action against defendant and respondent, FS Hotels (LA), Inc. (Hotel), plaintiffs and appellants, Ricardo Acuna, Luis Estrada, and Andres Ayala, appeal the trial court's order denying their motion for class certification of Hotel's non-exempt employees. Plaintiffs contend the trial court abused its discretion in weighing the evidence, failing to certify the class on a theory of failure to pay premium pay for break violations, and failing to certify a more limited class consisting of kitchen workers. We affirm.
FACTS AND PROCEDURAL BACKGROUND
I. The Complaint
On July 28, 2008, plaintiffs filed a class action complaint against Hotel. In the third amended complaint (TAC), non-exempt Hotel employees Acuna, a room service waiter, Estrada, a front-line cook, and Ayala, a busboy, alleged they were rarely or never, able, or allowed to take their two 10-minute rest breaks and often worked more than six hours without a 30-minute, uninterrupted meal break when Hotel was busy. Hotel did not always pay plaintiffs one-hour premium pay, required by Labor Code section 226.7, for failure to provide meal and rest periods in accordance with Industrial Welfare Commission (IWC) wage order No. 5-2001 (Cal. Code Regs., tit. 8, § 11050), in violation of section 204, which requires semi-monthly payments of all wages owed. The failure to pay Acuna and Ayala one hour of premium pay for each day of a meal and/or rest break violation and all overtime wages owed violated sections 201 or 202.
Labor Code, section 226.7 provides: "(a) No employer shall require any employee to work during any meal or rest period mandated by an applicable order of the Industrial Welfare Commission. [¶] (b) If an employer fails to provide an employee a meal period or rest period in accordance with an applicable order of the Industrial Welfare Commission, the employer shall pay the employee one additional hour of pay at the employee's regular rate of compensation for each work day that the meal or rest period is not provided." Hereafter, all statutory references are to the Labor Code unless otherwise stated.
Wage order No. 5-2001, which applies to Hotel workers (IWC wage order No. 5-2001(1), (2)(P)(3)), provides that employees must be provided an unpaid 30-minute lunch break during every shift longer than five hours and a paid ten-minute rest break for each four hours and each major portion of four hours worked (IWC wage order No. 5-2001(11), (12)). Plaintiffs do not contend Hotel was required to ensure that such lunch and rest breaks were taken, an issue currently pending before the California Supreme Court. (See, e.g., Brinker Restaurant Corp. v. Superior Court (2008) 165 Cal.App.4th 25, rev. granted Oct. 22, 2008, S166350; Brinkley v. Public Storage, Inc. (2008) 167 Cal.App.4th 1278, rev. granted Jan. 14, 2009, S168806.)
The TAC proposed the following class: "All persons who are employed or who have been employed by [Hotel] in a non-exempt position from four years prior to the filing of this Complaint to the present ["class period"] and not provided meal and/or rest breaks." The TAC alleged that the common questions of law and fact that predominate over any questions affecting only individual class members were whether Hotel: (1) violated wage order No. 5-2001 and sections 226.7 and 512 by "permitting, encouraging, and/or requiring" class members to work without meal breaks and by "requiring" class members to work without rest breaks for shifts in which such breaks were required by law; (2) violated section 204 in not providing all wages earned at least semimonthly; (3) violated sections 201 through 203 by failing to pay all money due when employment was terminated; and (4) violated Business and Professions Code section 17200 by violating the labor laws and regulations noted in the complaint.
Section 512 provides in pertinent part: "(a) An employer may not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than 30 minutes. . . ."
The TAC alleged plaintiffs' claims are typical of the class claims, in that plaintiffs and all class members sustained injuries arising out of Hotel's common course of conduct in violation of law as alleged in the complaint. A class action was superior to other available means of adjudication, in that, inter alia, common questions of law and fact affecting the class predominate over any questions affecting only individual class members.
In six causes of action, plaintiffs alleged: (1) Hotel required employees to work without a rest break during work days lasting more than four hours and required, permitted, or encouraged employees to work without a meal break during work days lasting more than five hours (§§ 226.7, 512; IWC wage order No. 5-2001); (2) Hotel failed to pay all wages owed at least semi-monthly (§§ 204, 1194, 1197.1); (3) Hotel failed to provide accurate itemized statements (§ 226, subd. (a)); (4) Hotel failed to pay waiting time penalties (§§ 201-202); (5) plaintiffs were entitled to penalties under the California Labor Code Private Attorneys General Act section 2699; and (6) Hotel engaged in unfair business practices (Bus. & Prof. Code, § 17200).
The complaint also contains individual causes of action by Acuna against Hotel and Cecilia Gonzalez.
II. Motion for Class Certification
On May 11, 2010, plaintiffs filed a motion for class certification.
There were at least 1,087 potential class members. Plaintiffs proposed the class contain five sub-classes: (1) class members not assured or permitted meal breaks who were not paid the penalty premium pay for each violation (§ 226.7, subd. (b)); (2) class members not authorized or permitted to take rest breaks who were not paid the penalty premium pay for each violation (§ 226.7, subd. (b)); (3) class members who were not paid all wages owed at least semi-monthly, including penalty premium pay (§ 226.7, subd. (b)) for each missed meal or rest break; (4) class members not provided accurate itemized wage statements; and (5) class members not paid waiting time penalties relating to failure to pay penalty premium pay for missed meal and rest breaks.
Plaintiffs' theory of recovery is that Hotel had a uniform policy or practice of systematic understaffing that made it impractical or impossible for non-exempt employees to take rest or, until recently, meal breaks. Hotel had a uniform policy or practice of not paying premium pay when meal and rest breaks were not afforded, and not providing accurate itemized wage statements and waiting time penalties.
The predominant question of fact is whether or not employees were afforded their meal and rest breaks. Plaintiffs are typical of class members, because they represent a cross-section of the class and their claims arise from the same policies and practices that are Hotel-wide.
A. Plaintiffs' Evidence In Support of Motion for Class Certification
Acuna was unable to take a full, uninterrupted 30-minute meal break on one-half of his shifts and rarely took his 10-minute rest breaks, because he was too busy with work. He was sometimes directed to clock out for a meal break but continue working and clock back in 30 minutes later. He and many coworkers were unable to take their meal and rest breaks because Hotel did not schedule extra workers when it was busy. His managers knew he did not take his rest breaks and encouraged him to continue working during breaks. He never saw an extra hour's pay on his paycheck when he worked through a meal break or rest break. On two occasions, Acuna was counseled he must take his full lunch breaks.
Until May 2009, Estrada was never allowed to take either of the two rest breaks he was entitled to, because he was busy in the kitchen and there was no one to cover for him or any of the other kitchen staff. After May 2009, he was still not allowed to take his rest breaks on busy days. Prior to July 2009, he was not compensated for any missed rest breaks. Prior to May 2009, on occasion, he was denied his 30-minute meal breaks when he was busy. He was never paid premium pay for any missed meal or rest breaks prior to the lawsuit.
Ayala was never permitted to take his two rest breaks. Sometimes, he was not allowed to take his lunch break or was called back early to work. He was not paid premium pay.
Hotel designated Samantha Walder, Director of Human Resources, as its "Person Most Qualified" to testify about the facts and circumstances related to any policy or practice concerning meal and rest breaks for Hotel's employees and whether Hotel followed its own policy or practice concerning meal and rest breaks. Walder testified in deposition that Hotel's procedure for ensuring meal and rest breaks was intended to make managers responsible for providing the required breaks and for reminding employees through department meetings to take them. No department had unique circumstances that required Hotel using a special procedure to ensure breaks were provided.
Hotel designated Elena Pikor as its "Person Most Qualified" to testify about Hotel's ability to generate time reports. Pikor testified that, prior to January 1, 2008, Hotel was not able to generate break exception reports showing when employees were taking meal breaks less than 30 minutes.
There were 1,087 non-exempt employees working for Hotel during the class period. There were 27 departments in which 1 to 155 employees worked.
Plaintiffs submitted declarations of non-exempt employees from seven of the departments: dining outlet, housekeeping, kitchen, laundry and valet, room service, stewarding, and pool. Those declarations established the following facts.
Room Service: Room service employees had a staff meeting on most days at which they were reminded they were entitled to take two 10-minute rest breaks and must take a 30-minute uninterrupted meal break, not less three hours or more than five hours into the shift. If they did not start the break within that period, Hotel paid one hour extra. Employees often chose to skip their two 10-minute breaks, but always took their 30-minute lunch breaks and were never denied a meal or rest break. Occasionally, employees are asked to delay a break but were always able to take a break eventually. On occasion, Yasminy Molina and Gloria Angeles were asked to delay taking meal breaks to help with a rush, but took the breaks later and were paid an extra hour of pay.
Dining outlet: Some servers chose to skip their 10-minute breaks when it was busy. One food runner was rarely allowed to take a rest break, because he was too busy and he had to get permission from food servers, who rarely gave permission. When, on occasion, Hotel was full and he was called back in the middle of his lunch break, the food runner was not paid a premium for missing his full meal break. One server was never provided a rest break and was often required to miss his full lunch break because he was too busy. On days where there was a full house, the supervisor told the employees that the manager said no employee would get a meal break that day. One server's lunch break started a half hour into his shift.
Kitchen: Some cooks chose not to take their 10-minute breaks. Some cooks voluntarily gave up their lunch breaks or took the lunch break later than the fifth hour of the shift. Some cooks never missed taking their lunch break. One cook declared he was always compensated for missed breaks with double pay. One cook was forced to cut his lunch break short because of work and always had to work through rest breaks. One dishwasher rarely was allowed to take rest breaks because there was too much work.
Stewarding: One steward occasionally chose to skip a10-minute break. Occasionally, someone may be told to wait to take a break if there is a rush, but they will eventually get their break. One steward was not allowed to take his rest breaks 25 to 40 times the previous year and on several shifts a month was too busy to ask for his rest breaks, but was never paid premium pay.
Housekeeping: Some employees never received rest breaks from their supervisors because there was too much work. Meal breaks were interrupted or not taken, because of the press of work. One employee was never compensated for missed breaks.
Laundry: One laundry attendant did not start taking regularly scheduled lunch breaks until after Hotel installed a time clock that did not permit punching back in from lunch before 30 minutes had elapsed. Some laundry attendants had too much work to take their rest breaks. One employee was not provided lunch breaks or was interrupted during lunch breaks, but was not compensated.
Pool: One employee was rarely able to take his rest breaks and often not able to take his lunch break.
B. Hotel's Evidence
1. Minutes
Minutes of staff meetings of the pool, PBX (communications), room service, Windows Lounge, guest services, kitchen, housekeeping, stewarding, engineering, front desk, accounting, minibar, and catering departments reflect that employees were reminded to take their full 30-minute lunch breaks and full two 10-minute breaks. Pool employees were required to inform the manager and coworkers when taking a 10-minute break. Kitchen employees were allowed to take their 10-minute breaks at their discretion but had to let the supervisor know. Stewarding staff were required to take breaks one at a time and needed to inform the supervisor before going on break.
2. Declarations
Hotel submitted 73 declarations of employees from 22 of the 27 departments. These 22 departments employed all but approximately 9 of the 1087 employees during the class period. Employees were never denied their meal and rest breaks. Sometimes, they voluntarily skipped or delayed rest or meal breaks. They were paid premium pay for working through a meal break. The three pool attendants, however, were usually denied rest breaks because they were too busy prior to 2006.
Breaks were written into the schedules of bellmen, laundry and valet, stewarding, valet parking, and room service. The kitchen included the banquets, café, and pastry departments. Meal and rest breaks were scheduled in the banquets department because banquets were scheduled ahead of time. Meal and rest breaks were scheduled in the pastry department because pastry cooks did not respond to rushes. Breaks for cooks in the pantry, café, and fish and meat lines were more difficult to coordinate because those positions responded to orders as they came in; however, the cooks covered for one another, and the sous chef was able to cover for them as well. In the restaurant, meal breaks were mandatory and rest breaks strongly encouraged, but they could not be scheduled ahead of time. In room service, breaks were taken in the order in which the employee's shift began, with the start times of the shifts being staggered to facilitate taking the rest breaks. In the finance department, non-exempt employees choose when to take their breaks because, unlike in kitchen and restaurant, they were not impacted by changes in business activity levels.
When Hotel hosted a press junket, room service breaks were coordinated around the junket attendees' lunch break and the conclusion of the junket, because business picked up at those times. Each room attendant was required to complete 12.5 (previously 14) credits, rated at 25 to 30 minutes each, per 8-hour shift, which provided enough time to take two 10-minute and one 30-minute break, with time left over. Room attendants took their 10-minute breaks when they wanted to and were allowed to go home early if they finished early, unless needed at work.
At the daily staff meetings of the room service, housekeeping, and stewarding departments, employees were reminded to take their full breaks. A written notice was posted near the kitchen and room service departments, reminding employees they were allowed two 10-minute rest breaks and a 30-minute lunch break. Supervisors, managers, assistant managers, captains, or the sous chef administered the breaks, reminded employees to take all breaks, checked to be sure breaks were taken, instructed employees to tell a manager when a break was not taken and explain so that premium time could be noted on the log, and audited payroll to find missed breaks so that premium time was paid.
Patti Fisher was the director of human resources at Hotel since January 2009 and at Four Seasons Resort Laua'i from 2004 to 2009. Each department was "required to set [its] staffing and scheduling each week so that each hourly employee is able to take a 30-minute, uninterrupted meal break and two 10-minute rest breaks. How the breaks are accomplished varies by department, and in many cases, varies by position within each department." There were "significant differences in break practices from employee to employee." Hotel did not "require[] that its employees shun their breaks in the interest of customer service. Just the opposite. We require people take their meal breaks. Some departments will require their people take their rest breaks, while other departments strongly encourage people to take their rest breaks. Breaks are, nevertheless, provided and available to every hourly employee in every department."
3. Empack
"Empack," Hotel's employee handbook, was a contract between Hotel and each employee. Prior to March 2008, it provided that an hourly employee working more than five hours in a workday was "required to take a 30-minute meal break which I will sign out and in for using the established procedures[;]" and an hourly employee was "entitled to receive a paid 10-minute rest period for every four hours of work (or fraction thereof) [and t]hese rest periods will not normally be scheduled and should be taken as the employee requests and business levels dictate." After March 2008, it provided that an employee working more than five hours in a workday "will be provided with an uninterrupted 30-minute meal break [which may be waived if the shift lasts no more than six hours;] . . . Policies regarding rest for non-exempt employees are regulated by state wage and hour laws[;] California law requires employers to grant me a 10-minute rest for every four hours of work in a day or major fraction thereof, occurring as near to the middle of the four-hour period as possible[;] I am paid for these rest periods; therefore, I am required to stay on premises[;] rest periods cannot be combined or taken prior to commencing my shift or at the end of my shift."
C. Denial of Class Certification
On June 9, 2010, the trial court denied class certification on the grounds plaintiffs failed to establish commonality, typicality, and superiority. The court ruled plaintiffs presented no evidence that the conduct and injury plaintiffs experienced were typical of those experienced in positions other than housekeeper, room service waiter, dish washer, buser, and line cook. Plaintiffs failed to produce evidence of commonality with other departments. Plaintiffs presented no evidence of their theory that Hotel purposely understaffed. Plaintiffs presented no evidence of a common means to establish employees in all departments were in fact missing their breaks and to establish whether a missed break was due to coercion or was voluntary.
DISCUSSION
I. Class Action Requirements and Standard of Review
"Code of Civil Procedure section 382 authorizes class actions 'when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court. . . .' The party seeking certification has the burden to establish the existence of both an ascertainable class and a well-defined community of interest among class members. (Lockheed [Martin Corp. v. Superior Court (2003) 29 Cal.4th 1096,] 1104 . . . .) 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. [Citation.] [¶] The certification question is 'essentially a procedural one that does not ask whether an action is legally or factually meritorious.' [Citation.] A trial court ruling on a certification motion determines 'whether . . . the issues which may be jointly tried, when compared with those requiring separate adjudication, are so numerous or substantial that the maintenance of a class action would be advantageous to the judicial process and to the litigants.' [Citations.] . . . [¶] We review the trial court's ruling for abuse of discretion. 'Because trial courts are ideally situated to evaluate the efficiencies and practicalities of permitting group action, they are afforded great discretion in granting or denying certification. . . . [Accordingly,] a trial court ruling supported by substantial evidence generally will not be disturbed "unless (1) improper criteria were used [citation]; or (2) erroneous legal assumptions were made [citation]" [citation] . . . . "Any valid pertinent reason stated will be sufficient to uphold the order."' [Citations.]" (Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 326-327 (Sav-On).)
"As the focus in a certification dispute is on what type of questions—common or individual—are likely to arise in the action, rather than on the merits of the case [citations], in determining whether there is substantial evidence to support a trial court's certification order, we consider whether the theory of recovery advanced by the proponents of certification is, as an analytical matter, likely to prove amenable to class treatment. [Citations.] 'Reviewing courts consistently look to the allegations of the complaint and the declarations of attorneys representing the plaintiff class to resolve this question.' [Citations.]" (Sav-On, supra, 34 Cal.4th at p. 327.)
II. No Abuse of Discretion in Denying Class Certification
Plaintiffs contend the trial court abused its discretion in denying class certification because it erred in weighing the evidence, and substantial evidence supported certification on a theory of premium pay violations and certification of the limited class of kitchen employees. We disagree with the contentions.
A. Weight of the Evidence
Issues going to the weight of the evidence are entrusted to the trial court's discretion. (Sav-On, supra, 34 Cal.4th at p. 334.) "Evidence of even one credible witness 'is sufficient for proof of any fact.' (Evid. Code, § 411.) And 'questions as to the weight and sufficiency of the evidence, the construction to be put upon it, the inferences to be drawn therefrom, the credibility of witnesses . . . and the determination of [any] conflicts and inconsistencies in their testimony are matters for the trial court to resolve.' [Citation.]" (Sav-On, supra, at p. 334.)
1. Walder's Statements
Walder testified Hotel's procedure for ensuring meal and rest breaks were provided to employees was to make managers responsible for providing breaks and for reminding employees through department meetings to take them. She testified no department had unique circumstances that required Hotel to use a special procedure other than making managers responsible for providing breaks and for reminding employees through department meetings.
Plaintiffs contend Fisher's declaration and other declarations submitted by Hotel contradicted Walder's testimony and should not have been considered by the trial court.The declarations did not contradict Walder's testimony. Fisher stated that how a department staffs and schedules its work to enable employees to take their breaks varies by department and in some cases by position. This does not contradict Walder's evidence that no department has unique circumstances that required a different practice than making managers responsible for providing breaks and for reminding employees through department meetings. Walder did not testify that all managers carried out their responsibility for providing breaks in a uniform way, for example, by requiring that every break be fixed on a schedule, regardless of whether the employee was employed as a valet parking attendant or as a cook on the fish line.
Plaintiffs did not make a motion in the trial court to exclude the declarations from evidence on this ground.
Plaintiffs' assertion that Walder's testimony was "adequate evidence of commonality, typicality, and superiority to establish class treatment" is mistaken. Plaintiffs' theory of recovery was that Hotel had a uniform policy or practice of systematic understaffing that made it impractical or impossible for non-exempt employees to take rest or, until recently, meal breaks. (See Sav-On, supra, 34 Cal.4th at p. 327 ["we consider whether the theory of recovery advanced by the proponents of certification is, as an analytical matter, likely to prove amenable to class treatment"].) Walder's testimony that Hotel's procedure for ensuring employees were provided meal and rest breaks was to make managers responsible for providing them and for reminding employees through department meetings does not establish plaintiffs' theory that Hotel had a "centralized practice[]" of systematic understaffing. (See Sav-On, supra, 34 Cal.4th at p. 333.)
To the extent plaintiffs contend Hotel's counsel misrepresented Walder's testimony and the misrepresentation was reversible error, we conclude there was no misrepresentation and no prejudice. Counsel correctly stated that Walder testified Hotel ensured employees were provided breaks by making managers responsible and by reminders at department meetings. There could be no prejudice because Walder's testimony was in evidence.
2. Credibility of Hotel's Declarations from Employees
Plaintiffs contend Hotel's declarations of 70 employees were not credible and were entitled to little weight because plaintiffs presented evidence that three of the declarations may have been coerced and Hotel could have provided better evidence of whether breaks were taken. Credibility and weight are issues for the trial court. We will not reweigh the evidence. (See, e.g., Scott v. Pacific Gas & Electric Co. (1995) 11 Cal.4th 454, 465.)
Plaintiffs did not make a motion in the trial court t o exclude the declarations from evidence on this ground.
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B. Class Certification on Theory of Failure to Pay Premium Pay for Break Violations
Plaintiffs contend the trial court abused its discretion in failing to certify the class on a theory that Hotel had a policy or practice of not paying premium pay for meal and rest break violations. Certification of the class on this theory rests on the same basis as the theory which the court rejected for certification of the class for meal and rest break violations: Hotel had a uniform practice of failing to provide rest and meal breaks by deliberate understaffing, without paying premium pay as required by section 226.7, subdivision (b). This claim is based on the same evidence and on violations of the same laws as the claim for break violations. Accordingly, it was not an abuse of discretion for the court to conclude that class treatment on this theory was unwarranted. (See White v. Starbucks Corp. (N.D.Cal. 2007) 497 F.Supp.2d 1080, 1089-1090 [inaccurate wage statement and unfair competition law claims derived from plaintiffs off-the-clock and break violation claims].)
On the merits, plaintiffs presented no evidence of their theory Hotel had a policy or practice of not paying premium pay for rest and meal break violations. Pikor testified Hotel's policy of paying an hour penalty pay for a short meal period was "more enforced" after January 2008, when a new time clock system gave Hotel the ability to generate meal break reports. There was evidence managers and supervisors manually checked for missed meal breaks, asked employees for an explanation for the missed break, and instructed employees to report missed meal breaks, in an effort to ensure premium pay would be paid when applicable. In these circumstances, it was reasonable to infer that, while it was more difficult to enforce premium pay prior to January 2008, it was not Hotel's uniform policy to deprive employees of premium pay owed. Moreover, Pikor's testimony provides no evidence on the subject of any policy or practice concerning paying premium pay for rest break violations.
III. Class of Kitchen Employees
Plaintiffs contend the trial court abused its discretion in failing to certify one or more limited classes based on departments, such as a class of employees in the kitchen department. Plaintiffs did not request class certification of any of these classes in its motion papers. The party seeking certification of a class has the burden to show that "an ascertainable class and a well-defined community of interest among class members" existed. (Sav-On, supra, 34 Cal.4th at p. 326.) At the hearing on the motion for class certification, plaintiffs' counsel made no showing as to any department-based class. Accordingly, it was no abuse of discretion to decline to certify a class of kitchen or other department-based employees.
CONCLUSION
The order is affirmed. Costs on appeal are awarded to respondent.
KRIEGLER, J. We concur:
ARMSTRONG, Acting P. J.
MOSK, J.