Opinion
A130836
09-27-2011
CAROLYN SANFORD, Plaintiff and Appellant, v. LANDMARK PROTECTION, INC., Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Alameda County Super. Ct. No. RG10532891)
This is an appeal from final judgment following the trial court's denial of a claim by plaintiff Carolyn Sanford against her former employer, defendant Landmark Protection, Inc. (Landmark), for unpaid wages and waiting time penalties pursuant to Labor Code sections 201 and 203. For reasons set forth below, we affirm.
Unless otherwise stated, all statutory citations herein are to the Labor Code.
FACTUAL AND PROCEDURAL BACKGROUND
On September 2, 2009, plaintiff filed a claim against Landmark with the Department of Labor Standards Enforcement (DLSE) seeking payment of $21.54 for unpaid wages plus 30 days of waiting time penalties for Landmark's delay in paying them. Following a contested hearing, a hearing officer with the DLSE denied plaintiff's claim for unpaid wages, but awarded her $344. 16 in waiting time penalties representing a three-day delay by Landmark in paying her final paycheck. Plaintiff thereafter appealed the ruling, which was adopted by the Labor Commissioner, in superior court. During a bench trial held November 23, 2010, the following evidence was presented.
Plaintiff was employed as a security guard for Landmark from August 2007 to August 2009 at the Lawrence Livermore Laboratory in Berkeley, generally working eight hours a day. On August 14, 2009, plaintiff was informed by Landmark operations manager Joe Riley by telephone that her employment was being suspended pending an investigation into a complaint made against her by a client. In the meantime, Riley told plaintiff that Landmark was removing her from the schedule for her regularly scheduled shifts on August 15 and 16. Riley also advised plaintiff to attend a meeting on August 17, 2009 at Landmark offices to discuss her situation.
Later the same day, plaintiff spoke by telephone to Arlene Cahill, Landmark's human resources director, who likewise informed plaintiff that a meeting was scheduled for August 17, 2009 to discuss her employment status in light of the complaint made against her by the client. During the call, plaintiff expressed anger at being removed from the work schedule for August 15 and 16, 2009.
On August 17, 2009, plaintiff attended a 90 minute meeting with Cahill and other Landmark managers, which culminated in the termination of her employment. At the time of her termination, plaintiff was earning $14.34 per hour. On August 21, 2009, Landmark paid plaintiff via direct deposit the remaining wages owed to her, which amount did not include compensation for attending the August 17, 2009 meeting. However, after plaintiff filed her claim with the DLSE on September 2, 2009, challenging the company's failure to compensate her for the meeting, Landmark submitted a check to plaintiff for $136.23, representing the wages claimed by plaintiff plus one day of waiting penalties, as a good faith effort to settle the dispute.
At trial, plaintiff testified that, prior to the August 17, 2009 meeting, she believed her attendance at the meeting was mandatory and that, should she fail to attend, her continued employment with Landmark would be jeopardized, particularly given that Landmark had already removed her from the work schedule for two of her regularly scheduled days. Plaintiff acknowledged that, after the meeting, she received a check from DLSE in the amount of $136.23, reflecting compensation paid by Landmark for her attendance at the meeting plus one day of waiting time penalties. However, plaintiff insisted that she returned the check to the DLSE without cashing it.
Human Resources Director Cahill, testifying on behalf of Landmark, disputed much of plaintiff's testimony. In particular, Cahill testified that plaintiff's attendance at the meeting was not mandatory, that a statement from plaintiff regarding the complaint against her was not required for investigative purposes prior to making a decision on her continued employment, and that she explicitly told plaintiff at the meeting that she would not be compensated for her attendance. Cahill also described Landmark's policy regarding compensation for meetings, which is set forth in the employee handbook. Specifically, the handbook provides that employees are entitled to be compensated for attending a meeting if the meeting is directly related to the employee's job and his or her attendance is required. Finally, Cahill testified, contrary to plaintiff, that she received online verification from Landmark's bank that plaintiff cashed the $136.23 check on December 4, 2009. To corroborate this testimony, Landmark presented evidence of a Transaction Detail from Bank of America showing a check made out to plaintiff in the amount of $136.23, posted to Landmark's account on December 4, 2009.
After taking the matter under submission, the trial court entered a final judgment on December 16, 2010 in favor of Landmark. Among other things, the trial court found that, although plaintiff was indeed working for Landmark when she attended the August 17, 2010 meeting, and was thus entitled to compensation, a good faith dispute existed regarding the wages plaintiff earned for that meeting, excusing Landmark from liability for waiting time penalties. (See § 203 [imposing penalties on employers that "willfully" fail to pay employees' earned wages].) Accordingly, the trial court affirmed the Labor Commissioner's award to plaintiff of $344.16 for Landmark's four-day delay in paying her wages earned prior to the August 17, 2009 meeting, and ordered Landmark to pay $575.00 to cover her costs in pursuing her claim. Plaintiff's appeal of the final judgment followed.
DISCUSSION
Plaintiff raises a single issue on appeal: Did the trial court err in declining to award her 30 days of waiting time penalties for Landmark's delay in compensating her for attending the August 17, 2009 meeting? In seeking reversal of the trial court's decision, plaintiff relies on two factual arguments. Specifically, plaintiff argues contrary to the trial court's findings that, first, the evidence proved her attendance at the meeting was mandatory and, second, that no evidence proved she cashed the $136.23 check tendered by Landmark to compensate her for the meeting plus one day of waiting time penalties. These facts, plaintiff contends, entitle her to 30 days of waiting time penalties pursuant to section 203. (§ 203.)
Section 203 provides in relevant part: " If an employer willfully fails to pay, without abatement or reduction, in accordance with Sections 201 . . . any wages of an employee who is discharged or who quits, 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." (§ 203, subd. (a).)
As her arguments reflect, plaintiff primarily resorts to an attack on the trial court's factual findings in challenging the judgment. However, it is not our role as reviewing court to reweigh the evidence. (Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632.) "Under [the substantial evidence] standard of review, our duty 'begins and ends' with assessing whether substantial evidence supports the verdict. [Citation.] '[The] reviewing court starts with the presumption that the record contains evidence to sustain every finding of fact.' [Citation.] We review the evidence in the light most favorable to the respondent, resolve all evidentiary conflicts in favor of the prevailing party and indulge all reasonable inferences possible to uphold the . . . verdict. [Citation.]" (U.S. Ecology, Inc. v. State of California (2005) 129 Cal.App.4th 887, 908.) " 'It is not our task to weigh conflicts and disputes in the evidence; that is the province of the trier of fact.' . . . [W]e do not evaluate the credibility of the witnesses or otherwise reweigh the evidence. [Citation.] Rather, 'we defer to the trier of fact on issues of credibility. [Citation.]' " (Escamilla v. Department of Corrections & Rehabilitation (2006) 141 Cal.App.4th 498, 514-515; see also Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874.)
The trial court below correctly recognized that the appeal of an order by the Labor Commissioner in superior court results in a de novo trial. " ' " 'A hearing de novo literally means a new hearing,' that is, a new trial." [Citation.] The decision of the commissioner is "entitled to no weight whatsoever, and the proceedings are truly 'a trial anew in the fullest sense.' " [Citation.]' [Citation.]" (Lolley v. Campbell (2002) 28 Cal.4th 367, 372.)
Applying this standard of review to the matter at hand, we thus look to the record on appeal to determine whether substantial evidence exists to support the trial court's judgment that, due to a good faith dispute between the parties regarding plaintiff's entitlement to compensation for the August 17, 2009 meeting, Landmark owed no waiting time penalties under section 203. (See Davis v. Morris (1940) 37 Cal.App.2d 269, 274 [" 'willful', as it is used in section 203 of the Labor Code, does not mean that the refusal to pay wages must necessarily be based on a deliberate evil purpose to defraud workmen of wages which the employer knows to be due, in order to subject him to the penalty. . . . [T]he term 'willful' in its ordinary use, merely means that one intentionally fails or refuses to perform an act which is required to be done"].) Having done so, we conclude that, contrary to plaintiff's arguments, there is indeed substantial evidence to support the trial court's finding of such a good faith dispute, as well as to support the court's finding that plaintiff cashed the $136.23 check intended by Landmark to compensate her for attending the meeting plus just one day of waiting time penalties.
We grant Landmark's motion to strike those portions of plaintiff's opening brief that refer to two exhibits - Plaintiff's Appendix Exhibits X and Y - that were not admitted into evidence below, and thus are not part of the record on appeal. Accordingly, we do not consider these exhibits for any purpose in reaching our decision. (Doers v. Golden Gate Bridge Etc. Dist. (1979) 23 Cal.3d 180, 184.)
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In particular, as set forth above, the record before us includes testimony from Landmark's Human Resources Director Arlene Cahill that, according to Landmark's policy on compensating employees for meetings set forth in the employee handbook, employees are entitled to be compensated for attending a meeting only if the meeting is directly related to the employee's job and his or her attendance is required. According to Cahill, in this instance, plaintiff's attendance was not required, rather she was given the option to attend, and she was explicitly told she would not be compensated for her attendance. Cahill also testified that plaintiff's termination could be completed without her attendance at the meeting based on statements already made by the person making the complaint, by plaintiff, and by plaintiff's co-workers on the day in question. Finally, Cahill testified that, contrary to plaintiff's testimony, she received online verification from Landmark's bank that plaintiff indeed cashed the $136.23 check tendered by Landmark to compensate her for attending the meeting plus one day of waiting time penalties.
While plaintiff correctly notes that her own testimony conflicted with Cahill's testimony on many of these points, as set forth above, conflicts in the evidence are for the trial court, not this court, to decide. (Escamilla v. Department of Corrections & Rehabilitation, supra, 141 Cal.App.4th at pp. 514-515; Bowers v. Bernards, supra, 150 Cal.App.3d at pp. 873-874.) Because Cahill's testimony was not "incredible or inherently improbable" (Harry Carian Sales v. Agric. Labor Relations Bd. (1985) 39 Cal.3d 209, 220), we conclude it alone constituted substantial evidence in support of the trial court's judgment. (Greenwich S.F., LLC v. Wong (2010) 190 Cal.App.4th 739, 767768 ["The testimony of one witness may provide substantial evidence"].)
Accordingly, because there is substantial evidence in the record to support the trial court's conclusion that Landmark did not owe plaintiff waiting time penalties because a good faith dispute existed regarding her wages for attending the August 17, 2009 meeting, we affirm the judgment.
DISPOSITION
The judgment in favor of defendant Landmark Protection, Inc. is affirmed. Plaintiff shall bear costs on appeal.
Jenkins, J. We concur: Pollak, Acting P. J. Siggins, J.