Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County, Roger W. Krauel, Judge., Super. Ct. No.GIC865845
McINTYRE, J.
Moises Garcia appeals a judgment entered in favor of his former employer, GMS Janitorial Services, Inc. (GMS), in GMS's appeal from an order of the Labor Commissioner awarding him unpaid overtime. He contends that the evidence of his overtime work was "not in conflict" and thus that there was no substantial evidence to support a reversal of the Labor Commissioner's decision. We disagree and affirm, but deny GMS's request that we impose sanctions for a frivolous appeal.
FACTUAL AND PROCEDURAL BACKGROUND
Beginning in October 2001, Garcia worked as a janitor for GMS, which provides janitorial services to its business customers. Shortly after Garcia started, GMS promoted him to a supervisory position that was responsible for overseeing the janitorial work at various jobsites, which generally occurred between 5:00 or 6:00 p.m. and 1:00 or 2:00 a.m. As a result of the promotion, GMS began paying Garcia a salary of $1,000 every other week rather than hourly and he was assigned to a regular schedule of approximately 40 hours a week. At the same time, GMS stopped keeping records of Garcia's precise work hours.
Based on repeated difficulties reaching Garcia during his scheduled working hours and complaints about his treatment of certain female employees of GMS, the company demoted Garcia to a utility man position, a day shift job, in March 2004. Because GMS separately billed its customers for work that its utility people performed or work that was performed on an emergency basis, its employees were supposed to keep track of their hours spent on such work and report those hours to GMS, although GMS had difficulty getting Garcia to comply with this. In November 2004, GMS fired Garcia after he failed to show up on a day when he was scheduled to work.
In March 2005, Garcia filed a complaint with the Labor Commissioner, alleging that GMS had failed to pay him $118,700.44 for overtime he had worked from March 2002 until his termination in November 2004. At the administrative hearing, Garcia testified that he worked seven days a week, typically 10 to 15 hours a day, that he "never took days off" (except two Saturdays a month) and was always "on call." Garcia's live-in girlfriend (and mother of his four children), Alma Solano, testified that Garcia worked more than 8 hours a day and "never took Saturday and Sunday off," although he did take one week of vacation. Garcia also called another GMS employee who testified that Garcia worked over 10 hours a day, 7 days a week.
GMS's president, Rene Gonzalez, testified that Garcia's primary responsibility as a supervisor was to check on his subordinates' work, but that he also purchased and delivered supplies to jobsites and repaired broken equipment. Gonzalez admitted that the company did not have any records of the hours that Garcia had worked, but that it paid Garcia a "fair" salary.
After the hearing officer awarded Garcia $122,257.11 in unpaid wages, interest and penalties, GMS filed an appeal of that decision in the superior court. At the de novo trial, Garcia testified that he "was always working" while employed by GMS, frequently putting in seven day weeks and 10 to 15 hour days, but that GMS had never paid him overtime for his excess hours. On cross-examination, Garcia admitted that he had no records of the hours he worked for GMS and could not identify even a single specific instance when he had worked overtime.
GMS presented evidence that Garcia was an undocumented alien who used a false social security number in applying for the job with it, that overtime was rarely required from either janitors or supervisors and that Garcia had not made any formal requests for overtime pay, or lodged any complaint about not receiving such pay, during the time he worked for it or at the time he was fired. It also introduced testimony of one of Garcia's neighbors, one of his friends and one of his live-in girlfriend's relatives that Garcia was not working during most weekends, but was instead entertaining friends and family at his home, going out with friends or doing landscaping work for pay on those days.
At the end of the trial, the court found that Garcia occasionally responded to requests for emergency service or performed other overtime work, but reported that time and was compensated for it. It rejected Garcia's testimony regarding the claimed overtime work as not credible and entered judgment in GMS's favor. Garcia appeals.
DISCUSSION
1. General Principles
Upon termination of employment, an employee is entitled to receive payment of all earned but unpaid wages. (Lab. Code, § 201; all further statutory references are to this code except as otherwise noted.) If an employer fails to pay wages owing, the employee may seek judicial relief by filing an ordinary civil action against it for breach of contract and/or for the wages prescribed by statute (§§ 218, 1194) or may seek administrative relief by filing a wage claim with the Labor Commissioner. (§§ 98-98.9; Cuadra v. Millan (1998) 17 Cal.4th 855, 858, disapproved on another ground in Samuels v. Mix (1999) 22 Cal.4th 1, 16, fn. 4.)
If the employee files an administrative claim, the Commissioner may accept the matter and conduct an administrative hearing on the employee's claim, prosecute a civil action for the collection of amounts owed or take no further action on the complaint. (Post v. Palo/Haklar & Associates (2000) 23 Cal.4th 942, 946.) If the Commissioner accepts the matter, the wage claim proceeds to an administrative hearing (commonly referred to as a Berman hearing), the purpose of which is to provide a means for the speedy, informal and affordable resolution of wage claims. (Cuadra v. Millan, supra, 17 Cal.4th at p. 858.)
Within 15 days after the Berman hearing is concluded, the hearing officer must file and serve notice of his or her decision. (Post v. Palo/Haklar & Associates, supra, 23 Cal.4th at p. 947.) Either party may seek review of that decision by filing an appeal in the superior court. (§ 98.2, subd. (a); see Gentry v. Superior Court (2007) 42 Cal.4th 443, 464.) Such an appeal results in a trial de novo, one in which the superior court is neither bound by, nor required to give any deference to, the administrative decision and is permitted to consider evidence that was not presented at the administrative hearing. (Smith v. Rae-Venter Law Group (2002) 29 Cal.4th 345, 357.)
As in the Berman hearing, the employee bears the burden of proof to establish his entitlement to overtime in the superior court proceedings. (Hernandez v. Mendoza (1988) 199 Cal.App.3d 721, 726-727.) However, where, as here, an employer fails to keep records regarding its employees' hours as it is required by law to do (§§ 226, subds. (a), (b), 1174, subd. (b), the employee meets his burden of proof by presenting evidence that he in fact performed the work for which he was not properly compensated and evidence sufficient to show the amount and extent of that work "as a matter of just and reasonable inference." (Hernandez v. Mendoza, supra, 199 Cal.App.3d at p. 727; see also Mumbower v. Callicot (8th Cir.1975) 526 F.2d 1183, 1186.)
2. Standard of Review
We review an appeal from the superior court's decision in accordance with the normal rules governing appellate review. (Smith v. Rae-Venter Law Group, supra, 29 Cal.4th at p. 357.) On the question of whether substantial evidence supports the court's decision, we cannot independently weigh the evidence or make findings different from those of the trial court. (See Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 630-631.) Rather, our power of review "'begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted,' to support the findings below." (Jessup Farms v. Baldwin (1983) 33 Cal.3d 639, 660.)
3. Substantial Evidence
The question here is whether substantial evidence in the record supports the superior court's finding that Garcia failed to meet his burden of proof as to his entitlement to overtime. We conclude that it does. Although Garcia testified that he had frequently worked 7 days a week and generally worked 10 to 15 hours a day during the relevant time, the court specifically rejected the credibility of this testimony in light of other evidence that on weekends he was regularly at home, out with friends or working another job rather than doing overtime work for GMS. Garcia appears to contend that Hernandez v. Mendoza, supra, 199 Cal.App.3d at pages 726-727, required the court to accept his testimony as evidence sufficient to permit an inference that he worked the claimed overtime. However, although his testimony might have been sufficient to support an award in his favor if the court found it credible, nothing in the case law constrained the court to find it to be credible. (Johnson v. Pratt & Whitney Canada, Inc. (1994) 28 Cal.App.4th 613, 622 [recognizing that it is the exclusive province of the trier of fact to determine the credibility of a witness].) Substantial evidence in the record supports the court's finding and we must thus accept it for the purposes of this appeal. (Drummey v. State Bd. of Funeral Directors (1939) 13 Cal.2d 75, 86.) Accordingly, Garcia's challenge to the judgment is not well-taken.
4. Sanctions Request
Pursuant to Code of Civil Procedure section 907 and California Rules of Court, rule 8.276(e), GMS asks this court to award it monetary sanctions of $33,309.40 against Garcia and his attorney for pursuing a frivolous appeal. It contends that Garcia and his counsel misapplied various standards (including the standards governing his burden of proof below and our appellate review of the superior court's decision) and ignored the evidence that supported the trial court's decision.
Various types of sanctions may be imposed against a party or an attorney who prosecutes a frivolous appeal. (See Code Civ. Proc, § 907; California Rules of Court, rule 8. 276(e).) Generally, "[a]n appeal is sanctionable as frivolous when it is prosecuted for an improper motive to harass the respondents or delay the effect of an adverse judgment, or where it indisputably is totally and completely without merit." (Weber v. Willard (1989) 207 Cal.App.3d 1006, 1009-1010.) The first test for frivolousness is subjective, requiring a determination as to whether the appeal is being prosecuted solely for an improper motive, such as to harass the respondent or delay the effect of an adverse judgment. (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 649-650.) The second test is objective, requiring a determination of whether the appeal is so indisputably without basis "that any reasonable attorney would agree it was totally devoid of merit." (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1766, 1773.)
Sanctions are to be used sparingly, only to deter the most egregious conduct, "so as to avoid a serious chilling effect on the assertion of litigants' rights on appeal." (In re Marriage of Flaherty, supra, 31 Cal.3d at p. 650.) While we agree with GMS that Garcia's appeal lacks merit, and that certain aspects of the appeal could well be deemed frivolous, we are unable to conclude that the appeal as a whole is "so utterly devoid of potential merit as to justify sanctions." (Abdallah v. United Savings Bank (1996) 43 Cal.App.4th 1101, 1112.)
DISPOSITION
The judgment is affirmed; the motion for sanctions is denied. GMS is awarded its costs of appeal.
WE CONCUR: McDONALD, Acting P.J., AARON, J.