Woodruff v. Cnty. of San Diego In-Home Support Servs. Pub. Auth.

Full title: DEBIE WOODRUFF et al., Plaintiffs and Respondents, v. COUNTY OF SAN DIEGO…

Court: COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

Date published: Sep 18, 2019

No. D072937 (Cal. Ct. App. Sep. 18, 2019)

Opinion

D072937

09-18-2019

DEBIE WOODRUFF et al., Plaintiffs and Respondents, v. COUNTY OF SAN DIEGO IN-HOME SUPPORT SERVICES PUBLIC AUTHORITY, Defendant and Appellant.

Thomas E. Montgomery, County Counsel, William H. Songer and Darin L. Wessel, Deputies County Counsel, for Defendant and Appellant. Law Offices of David J. Gallo and David J. Gallo for Plaintiffs and Respondents.

AARON, J.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2008-00096957-CU-OE-CTL) APPEAL from a judgment of the Superior Court of San Diego County, Ronald L. Styn, Judge. Affirmed. Thomas E. Montgomery, County Counsel, William H. Songer and Darin L. Wessel, Deputies County Counsel, for Defendant and Appellant. Law Offices of David J. Gallo and David J. Gallo for Plaintiffs and Respondents.

I.

INTRODUCTION

The Legislature enacted the In-Home Supportive Services (IHSS) program (Welf. & Inst. Code, § 12300 et seq.)¹ to provide supportive services to qualified aged, blind or disabled persons (IHSS recipients) to allow them to remain in their homes and avoid institutionalization. (Guerrero v. Superior Court (2013) 213 Cal.App.4th 912, 920 (Guerrero).) The California Department of Social Services (DSS) " 'promulgates regulations that implement the program, and county welfare departments administer the program' " under the supervision of DSS. (Id. at p. 921.) A county may administer its IHSS program in various ways, including by establishing a public authority. (Id. at p. 923.)

1 Unless otherwise specified, all subsequent statutory references are to the Welfare and Institutions Code.

In San Diego County, the IHSS program is administered through defendant County of San Diego In-Home Supportive Services Public Authority (Public Authority). Plaintiffs Debie Woodruff, Ollie Katrina Baptiste, Miriam St. Germaine, and Cynthia Byrd provided in-home supportive services to IHSS recipients through Public Authority.

In 2008, plaintiffs filed this action against Public Authority alleging various wage and hour violations on behalf of themselves and a class of similarly situated IHSS providers.² In 2014, after the trial court issued numerous rulings in the matter and held a jury trial, this court issued an opinion in a prior appeal resolving several issues pertaining to the action. (Woodruff v. County of San Diego In-Home Supportive Services Public Authority (Jun. 24, 2014, D062180) [nonpub. opn.] (Woodruff I)).³

2 Although the record indicates that Woodruff initially filed the original complaint in this matter and that Baptiste, St. Germain and Byrd joined this action at various stages of the proceedings, since the timing of when each plaintiff joined the action is immaterial to the present appeal, for ease of reference we refer to the action having been brought by all plaintiffs.

3 The procedural history of the case prior to Woodruff I is outlined in the factual and procedural background portion of that opinion. (Woodruff I, supra, D062180, slip opn. at pp. 4-12.)

As relevant to the present appeal, the Woodruff I court concluded that Public Authority was plaintiffs' employer for purposes of plaintiffs' claims for wages, overtime, and expense reimbursements. (Woodruff I, supra, D062180, slip opn. at pp. 18-37.) The Woodruff I court also concluded that plaintiffs might be entitled to compensation for time that they spent submitting certain enrollment forms mandated by the Legislature's 2009 enactment of section 12301.24 even though plaintiffs were not entitled to compensation for time spent acting "in compliance with a government directive." (Woodruff I, supra, D062180, slip opn. at p. 43.) The Woodruff I court reasoned that although the Legislature mandated that "prospective providers" attend an in-person enrollment orientation, the Legislature did not require "current providers," such as plaintiffs,⁴ to complete the enrollment process in person. (Id. at pp. 42-43 [comparing § 12301.24, subd. (a) with subd. (c)].) Thus, the Woodruff I court concluded that plaintiffs might be entitled to compensation if they could establish that their employer, Public Authority, directed current providers to travel to an enrollment center to attend an orientation or to submit their enrollment forms in person, given the lack of any in-person requirement for current providers in 12301.24, subdivision (c). (Woodruff I, supra, D062180, slip opn. at p. 43.)

4 The record indicates that DSS defined "current providers" as those "provider[s] enrolled in the CMIPS system [Case Management, Information and Payrolling System] after January 1, 2001 and prior to November 1, 2009." CMIPS is a state database used in administering the IHSS program.
It is undisputed that plaintiffs were "current providers" within the meaning of the statute. (§ 12301.24, subd. (c).)

On remand from Woodruff I, plaintiffs filed a second amended complaint bringing claims including: failure to pay minimum wage for current providers who were required to attend a provider orientation and complete the section 12301.24 enrollment process in person, nonpayment of overtime, and failure to reimburse for business expenses. The trial court partially granted plaintiffs' motion for class certification and certified a class solely with respect to plaintiffs' minimum wage section 12301.24 claim.

The trial court held a jury trial and the jury rendered a special verdict in favor of both the plaintiff class and the individual plaintiffs. With respect to the class claim, the jury found that the plaintiffs were entitled to compensation for hours worked while traveling to an enrollment center to submit their section 12301.24 enrollment forms in person.⁵ With respect to the individual claims, the jury found that each of the four plaintiffs was entitled to recover overtime compensation and reimbursement for employment expenses. The court entered a judgment for the class and the individual plaintiffs consistent with the jury's verdict and awarded plaintiffs costs and attorney fees.

5 The jury found that the plaintiffs had not attended "any class, instruction, or training session at an Enrollment Center." No claims pertaining to this portion of the jury's verdict are raised in this appeal.

On appeal, Public Authority contends that the class claim fails as a matter of law and that the trial court erred in instructing the jury with respect to that claim. As to the individual claims, Public Authority contends that the plaintiffs' claims for overtime compensation and expense reimbursements should be reversed because the trial court erred in determining that Public Authority is the plaintiffs' employer as a matter of law. Public Authority also claims that the judgment for the individual plaintiffs' on their claims for overtime compensation should be reversed because the trial court committed two errors related to the "personal attendant" exemption to overtime pay, one relating to the court's jury instructions with respect to this issue and the other pertaining to the court's exclusion of evidence that Public Authority sought to offer to prove the exemption. (Cal. Code Regs., tit. 8, § 11150, subd. (1)(B).) Finally, Public Authority maintains that the trial court erred in instructing the jury with respect to plaintiffs' claims for expense reimbursements.

We affirm the judgment in its entirety.⁶

6 Plaintiffs request that, "in the event of [a] change in the judgment," (capitalization & boldface omitted) we remand the matter for a recalculation of attorney fees to ensure a proper attorney fee award as "between the class claims and the individual claims." We need not consider this request in light of our affirmance of the judgment in its entirety.

II.

FACTUAL AND PROCEDURAL BACKGROUND

A. The trial on remand from Woodruff I

As discussed in greater detail in part III.A.2.b, post, plaintiffs presented evidence that Public Authority directed the plaintiff class to submit their section 12301.24 enrollment forms in person at various enrollment centers that Public Authority operated to implement various statutes enacted in 2009.

Plaintiffs presented evidence both that they had worked uncompensated overtime and that they were not exempt from overtime pay requirements pursuant to the personal attendant exemption. Plaintiffs also presented evidence that they had incurred expenses (primarily mileage expenses) for which they had not been reimbursed by Public Authority. B. The jury's special verdict

The jury rendered a special verdict in favor of the plaintiff class and the individual plaintiffs. The jury found that the plaintiff class was entitled to a total of $111,000 for hours worked while traveling to enrollment centers to submit their section 12301.24 enrollment forms in person, and an additional $74,925 in prejudgment interest. With respect to the individual claims, the jury found that each of the four plaintiffs was entitled to overtime compensation and reimbursement for employment expenses in varying amounts, together with corresponding prejudgment interest on the overtime claims. With respect to each plaintiff, the jury found that Public Authority had not proven that the personal attendant exemption applied to plaintiffs. C. The judgment

The trial court entered a judgment consistent with the jury's verdict against Public Authority and in favor of the plaintiff class in the amount of $185,925, and in favor of the individual plaintiffs in the following amounts: Woodruff, $20,638.94; Baptiste, $95,230; St. Germain, $17,789.60; and Byrd, $15,513.73. D. The appeal

Public Authority appeals from the judgment.⁷

7 While this appeal was pending, plaintiffs filed a motion for judicial notice of three documents: two opinion letters from the Department of Industrial Relations, and a DSS regulation. Apart from citing Evidence Code sections 451, 452, and 453, plaintiffs' motion does not contain any supporting legal argument. Accordingly, we deny the motion.

III.

DISCUSSION

A. The class claim does not fail as a matter of law and Public Authority has not established that the trial court erred in instructing the jury with respect to that claim

Public Authority claims that the class claim for minimum wages for time that plaintiffs spent submitting section 12301.24 forms in person to Public Authority fail as a matter of law. In the alternative, Public Authority contends that the class claim must be reversed due to instructional error. We first discuss the relevant law and provide additional factual and procedural background relevant to both claims before considering each claim individually.

1. Governing law

a. Relevant provisions of Wage Order No . 15-2001

Wage Order 15-2001 (Wage Order No. 15) "applies to persons employed in 'household occupations,' including IHSS providers," such as plaintiffs. (Woodruff I, supra, D062180, slip opn. at p. 16.) The order specifies that "[e]very employer shall pay to each employee, on the established payday for the period involved, not less than the applicable minimum wage for all hours worked in the payroll period, whether the remuneration is measured by time, piece, commission, or otherwise." (Cal. Code. Regs. tit. 8, 11150, subd. (4).) The order defines " '[h]ours worked' " as "the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so." (Id., subd. (2)(H).)

b. Relevant statutory law

i. Section 12301.24

The Legislature enacted section 12301.24 in 2009. (Stats. 2009-2010, 4th Ex. Sess., ch. 17, § 3.) The statute established a set of requirements for "prospective [IHSS] providers" (id. at subd. (a), italics added) as well as then existing or "current [IHSS] providers." (Id. at subd. (c), italics added.) With respect to prospective providers, section 12301.24, subdivision (a) required that, "[e]ffective November 1, 2009, all prospective providers shall complete a provider orientation at the time of enrollment," covering various topics pertaining to the IHSS program. (Ibid.)

With respect to "current providers," section 12301.24, subdivision (c) provided as follows:

"Between November 1, 2009, and June 30, 2010, all current providers shall receive the information described in this section. Following receipt of this information, a provider shall submit a signed agreement, consistent with the requirements of this section, to the appropriate county office."

The DSS developed a form (SOC 846)⁸ to be used by "current providers" (§ 12301.24, subdivision (c)) in complying with this requirement.

8 These forms are also referred to in the record as "Form 846" and "Form 846 Provider Agreements."

ii. Section 12305.81

Also in 2009, the Legislature amended section 12305.81 to require all IHSS providers⁹ to submit certain anti-fraud documentation in person to IHSS authorities. (Stats. 2009-2010, 4th Ex. Sess., ch. 4, § 27.) Section 12305.81, subdivision (a) required all IHSS providers to submit "in person" (italics added) a "provider enrollment form" together with "documentation verifying the provider's identity." The statute provides in relevant part:

9 It is undisputed that this requirement applied to both prospective and current providers.

"[DSS] and the State Department of Health Care Services shall develop a provider enrollment form that each person seeking to provide supportive services shall complete, sign under penalty of perjury, and submit to the county. Submission of the form shall include the photocopying by the county of original documentation verifying the provider's identity . . . . A provider shall submit the form to the county in person, and the county shall retain the form

and a copy of the identification documentation in the file of the provider."

Section 12305.81, subdivision (a), (1) through (5) specified the contents of the provider enrollment form, which included information pertaining to certain convictions that would disqualify the person from providing IHSS services and required the provider to attest that he or she did not have any qualifying convictions.

The DSS developed forms (SOC 426, SOC 426A) to be used by IHSS providers in complying with section 12305.81.

iii. Sections 12301.6 and 12305 .86

In 2009, the Legislature also amended section 12301.6 and added section 12305.86 to require IHSS authorities to obtain criminal background checks of all IHSS providers. (Stats. 2009-2010, 4th Ex. Sess., ch. 17, § 11.) Both statutes explicitly provide that IHSS providers shall pay for the criminal background checks. (§§ 12301.6, subd. (e)(1), (2)(A)(i), 12305.86, subd. (b).)

c. Woodruff I

In Woodruff I, this court considered whether the trial court erred in denying class plaintiffs leave to amend to state a claim for compensation for time spent completing the section 12301.24 enrollment process in person at various enrollment centers set up by Public Authority. (Woodruff I, supra, D062180, slip opn. at p. 41.) We explained that plaintiffs claimed that Public Authority had required current providers to complete the section 12301.24 enrollment process in person, even though section 12301.24 imposed that requirement only on prospective providers. (Woodruff I, supra, D062180, slip opn. at p. 41.) We reasoned that the trial court erred in denying plaintiffs' request to amend their complaint to state a claim based on this theory:

"We conclude that the trial court abused its discretion when it denied [plaintiffs'] request to amend their complaint to add a claim for compensation for time spent . . . completing the enrollment process in person. In denying the request to amend, the court misinterpreted section 12301.24 by applying the statutory requirements that govern prospective providers' enrollment in IHSS to current providers. . . . [¶] [Plaintiffs] may be entitled to compensation for 'hours worked' if they can establish that Public Authority directed current providers to . . . travel to an enrollment center to submit their signed agreements."¹⁰ (Id. at pp. 42-43.)

10 In a footnote immediately following this portion of the text, the Woodruff I court stated, "If current providers have not completed a background check, they may be required to travel to an enrollment center in person to comply with criminal background check requirements." (Woodruff I, supra, D062180, slip opn. at p. 43, fn. 24.) As explained in the text below, the Woodruff I court concluded that plaintiffs could not state a claim based on their time spent obtaining a criminal background check.

However, the Woodruff I court concluded that the plaintiffs could not state a claim for time spent reviewing written materials to comply with section 12301.24. (Woodruff I, supra, D062180, slip opn. at pp. 39, 43.) We reasoned that "[plaintiffs] are not entitled to compensation for time spent reviewing written materials in compliance with a government directive. (DLSE Opn. Letter, Nov. 25, 2008.)"¹¹ (Id. at p. 43.)

11 In the course of its analysis, the Woodruff I court cited the November 25, 2008 Department of Labor Standards Enforcement opinion letter for the proposition that an "employee is not subject to the control of the employer, nor suffered or permitted to work for the employer, within the meaning of California's hours worked requirement when complying with a government mandated procedure." (Woodruff I, supra, D062180, slip opn. 28 & fn. 23.)

The Woodruff I court also concluded that the plaintiffs could not state a "cause of action for minimum wage[s] for time spent or reimbursement for expenses incurred in obtaining a background check because the Legislature expressly directed that '[c]riminal background checks shall be conducted at the provider's expense.' " (Woodruff I, supra, D062180, slip opn. at p. 40.)

The Woodruff I court did not discuss section 12305.81, and what effect, if any, it might have on plaintiffs' ability to prove their claim for submitting their section 12301.24 forms (i.e., SOC 846 forms) in person.

2. Factual and procedural background

a. Pretrial hearings

During a pretrial hearing concerning the parties' motions in limine and jury instructions, Public Authority's counsel argued that plaintiffs could not establish their claim for minimum wages for time spent travelling to enrollment centers to submit their section SOC 846 forms.¹² Counsel noted that it was undisputed that section 12305.81 required plaintiffs to appear in person to submit their SOC 426 and 426A forms. Thus, according to Public Authority's counsel, plaintiffs were not entitled to be paid for the time spent travelling to Public Authority's enrollment centers to turn in their SOC 426 and 426A forms or their SOC 846 forms because the undisputed evidence established that plaintiffs had turned in all of the forms (i.e., SOC 426, 426A, 846) at the same time.¹³ Public Authority's counsel argued that, as a result, plaintiffs' minimum wage claim failed as a matter of law insofar as it was premised on plaintiffs' time spent travelling to an enrollment center to submit their SOC 846 forms.

12 Public Authority's counsel contended that "travel time is no longer at issue."

13 Public Authority's counsel acknowledged that the jury should be permitted to determine as a factual matter whether plaintiffs had attended various classes for which plaintiffs also claimed they were entitled to be paid minimum wages. As noted in footnote 5, ante, the jury found that plaintiffs had not attended any such classes.

In response, plaintiffs' counsel argued that the Woodruff I court had concluded that current providers, such as plaintiffs, were entitled to compensation for time spent submitting their SOC 846 forms in person and that this ruling constituted law of the case. Plaintiffs' counsel also argued that Public Authority required that plaintiffs turn in their SOC 846 forms in person, notwithstanding that section 12301.24, subdivision (c) did not mandate that current providers submit these forms in person. Plaintiffs' counsel contended that even if section 12305.81 required all providers to appear in person to submit their SOC 426 and 426A forms, this fact did not preclude the jury from awarding plaintiffs compensation for time spent submitting their SOC 846 forms in person at the same time.¹⁴

14 In making this argument, plaintiffs' counsel provided an analogy. Counsel began by noting that an employee is not ordinarily entitled to be compensated for their commute time. However, plaintiffs' counsel contended, "[I]f they're required by their employer to bring anything with them, such as tools in their car, it's not commute time, and they have to be paid for it."
Plaintiffs' counsel continued by contending that the same principles would apply in this case:

"So we have a situation here where [Public Authority] says 'Well, as long as you're coming, we're going to require you to bring more stuff and do more stuff when you get here.' That's the whole point. They went beyond what the statute required they do without compensation."

The trial court ruled that plaintiffs could proceed with their claim for minimum wages for time spent submitting their SOC 846 forms in person. In reaching this conclusion, the trial court reasoned in part:

"I'm going to go with the Court of Appeal [in Woodruff I]. And I don't know whether they considered that[¹⁵] and decided that it didn't apply. I don't know what all their reasoning was. But their statement is absolutely clear. And I don't think as a trial judge that I can ignore it."

15 By "that," the trial court was referring to Public Authority's argument that plaintiffs were not entitled to travel time compensation for turning in their SOC 846 forms, because "they have to go in person for these other forms [i.e. SOC 426, SOC 426A]."

In addition, as discussed in greater detail in part III.A.4, post, the trial court refused to instruct the jury pursuant to two alternative instructions that Public Authority offered with respect to this issue. One instruction was entitled, "No compensation for time spent complying with state directive" (some capitalization omitted) ("No Compensation Instruction") and the second was entitled, "Time spent complying with state directive does not constitute 'Hours Worked' " (some capitalization omitted) ("Time Spent Instruction").

b. Trial evidence

At trial, plaintiffs presented evidence that Public Authority had directed plaintiffs to submit their SOC 846 forms in person at various enrollment centers set up by Public Authority to implement the various statutory mandates passed by the Legislature in 2009. For example, plaintiffs offered in evidence an enrollment checklist entitled "IHSS Individual Provider (IP) Enrollment Checklist (Current IP)." One of the items on the checklist stated, "Sign Form SOC 846 (BRING THE FORM TO THE ENROLLMENT LOCATION)." The checklist also stated, "You must submit the paperwork and provide proof of identification at the enrollment location."

c. The trial court's jury instruction on plaintiffs' claim

The trial court instructed the jury concerning plaintiffs' claim pursuant to Special Instruction No. 17 in relevant part as follows:

"The Plaintiff Class is entitled to be compensated for any time which Providers may have expended in traveling to an Enrollment Center to submit their signed Form 846 Provider Agreements, and in submitting their signed Form 846 Provider Agreements, to the extent [Public Authority] may have suffered or permitted them to do so, whether or not they were required to do so.[¹⁶]

"[¶] . . . [¶]

"The Plaintiff Class is not entitled to be compensated for time expended in completing criminal background checks, or traveling to

an Enrollment Center to comply with criminal background check requirements."

16 The trial court separately instructed the jury that " '[h]ours worked' is the time during which an employee is subject to the control of [Public Authority], the IHSS Recipient, or both, and includes all the time the employee is suffered or permitted to work, whether or not required to do so." The court further instructed that "[a]n employee is entitled to be paid the legal minimum wage rate for each 'hour worked' even if he or she agrees to work for a lower wage."

d. Jury's question and the trial court's response

During its deliberations, the jury sent a note to the court posing the following question:

"Is Form 846 considered separate from all background check required documents required at the Enrollment Center?

"We have some concern with possible conflicting instructions as circled in attached Special Instruction [No.] 17."

Together with this note, the jury sent the court a copy of Special Instruction No. 17 with the paragraphs quoted in part III.A.2.c, ante, circled.

The court and counsel discussed the jury's question. Plaintiffs' counsel agreed with the court's proposed response to instruct the jury that "Form 846 . . . is not part of the criminal background check." Public Authority's counsel argued that the jury's question presented a question of fact that the jury itself was obligated to answer. Specifically, Public Authority's counsel argued:

"Your honor, our position is that it is part of the process. I think what the jury is asking is whether travel was required in this unique instance. If travel is required [o]n one hand and not required on the other hand, then I believe it's a fact question. Was it separate from the required documents required at the enrollment center? I think that's a fact question that the jury has to determine."

After further discussions, the trial court ruled that it would inform the jury, " 'The Form 846 is separate from the background checks.' " The court then sent the jury a written response stating the same.

e. The jury's verdict

The jury returned a special verdict form that responded in the affirmative to the following question:

"Did the IHSS Provider Plaintiff Class perform any 'hours worked' while traveling to an Enrollment Center . . . to submit their signed Form 846 Provider Agreements, and/or in submitting their Signed Form 846 Provider Agreements in person?"

The next question of the verdict form asked the jury the following question:

"What is the total dollar amount of compensation owed to the members of the IHSS Provider Plaintiff Class (in the aggregate) for 'hours worked' traveling to an Enrollment Center . . . to submit their signed Form 846 Provider Agreements, and/or in submitting their signed Form 846 Provider Agreements in person?"

The jury responded, "[$]111,000."¹⁷

17 During his closing argument, plaintiffs' counsel requested that the jury award the class $111,000, arguing as follows:

"So[,] based on the evidence you've heard, it would take about three-quarters of an hour for a provider to travel to the enrollment center and to return. 18,500 people [in the class] times .75 hours is 13,875 hours.

"Now, this is a claim for minimum wage, which means they would get paid at a lower rate than their contract rate, which was $9.50 an hour. They'd only get paid at $8 an hour. So[,] when you take 13,875 hours and multiple it by $8 an hour, that's $111,000 for the whole entire group, and that's your answer to Question No. 2 on the verdict form."

Public Authority raises no claim on appeal with respect to the plaintiffs' counsel's argument in this regard or with respect to the dollar amount of the jury's verdict on the class claim.

3. The plaintiffs' class claim for minimum wages for time spent submitting SOC 846 forms does not fail as a matter of law

Public Authority claims that the plaintiffs' class claim for minimum wages fails as a matter of law insofar as it is premised on plaintiffs' time spent submitting SOC 846 forms. Public Authority contends that plaintiffs were not "entitled to minimum wages for travelling to enrollment centers to submit the SOC 846 form when the state expressly required in person presence at enrollment centers to present the SOC 426 form and identification[.]" We review this contention de novo, since it raises a question of law. (Cf. Souza v. Westlands Water Dist. (2006) 135 Cal.App.4th 879, 887 ["[t]he question is one of law, so our review is de novo"].)

We distill several distinct arguments in Public Authority's brief in support of its claim. The first two arguments relate to our decision in Woodruff I and its application on remand under the law of the case doctrine. We summarized the law of the case doctrine in Morales v. 22nd Dist. Agricultural Assn. (2018) 25 Cal.App.5th 85, 98-99 (Morales):

" ' " 'The decision of an appellate court, stating a rule of law necessary to the decision of the case, conclusively establishes that rule and makes it determinative of the rights of the same parties in any subsequent retrial or appeal in the same case.' " ' [Citation.] ' "[Q]uestions presented and decided by [an] appellate court upon appeal from a judgment on demurrer become the law of the case, and are not open to question on a subsequent appeal" unless the evidence " 'is substantially different in a material respect.' " ' "

First, Public Authority contends that the trial court erred in concluding that, under Woodruff I, plaintiffs could establish a claim for travel time for submitting their SOC 846 forms because the Woodruff I court did not consider the impact of section 12305.81 on plaintiffs' ability to prove their claim. We agree with Public Authority that the law of the case doctrine and our decision in Woodruff I did not establish the legal sufficiency of plaintiffs' claim. Our decision in Woodruff I merely concluded, that, based on the arguments presented in Woodruff I, plaintiffs "may be entitled to compensation for 'hours worked' if they can establish that Public Authority directed current providers to . . . travel to an enrollment center to submit their signed agreements." (Woodruff I, supra, D062180, slip opn. at p. 43, italics added.) Such equivocal language does not establish, as law of the case, the legal sufficiency of the plaintiffs' claim on remand. (See Morales, supra, 25 Cal.App.5th at p. 99 [concluding that prior opinion stating that plaintiffs' could "allege a potentially valid claim," and that plaintiffs had shown that they could "potentially amend their complaint," was "equivocal language," that did not establish as a matter of the law of the case that plaintiffs could adequately state a cause of action on remand].)

This is particularly true since the Woodruff I court did not discuss what effect, if any, section 12305.81 might have on the plaintiffs' ability to prove their claim.¹⁸ (See Leider v. Lewis (2017) 2 Cal.5th 1121, 1130 (Leider) [concluding that law of the case doctrine did not preclude defendant from raising statutory defense not presented in prior appeal because "law of the case does not apply to arguments that might have been but were not presented and resolved on an earlier appeal"].)

18 It is undisputed that Public Authority did not raise any argument pertaining to section 12305.81 in Woodruff I.

However, even though the trial court erred in concluding that our decision in Woodruff I required that plaintiffs be permitted to present their claim to the jury, we reject Public Authority's further contention that Woodruff I mandated the opposite result, namely, that plaintiffs' claim failed as a matter of law.¹⁹ As discussed above, the Woodruff I court did not consider section 12305.81 in any respect and thus did not consider whether the "in person" submission of SOC 426 and 426A forms mandated by section 12305.81 precluded plaintiffs from prevailing on the claim for minimum wages for time spent submitting their SOC 846 forms in person. The law of the case doctrine does not apply under these circumstances. (See Leider, supra, 2 Cal.5th at p. 1130.)

19 Public Authority contends, "Under . . . Woodruff I, the time traveling to an enrollment center was not compensable as a matter of law because it was required by the state."

With respect to the legal effect of the in-person requirement contained in section 12305.81 on plaintiffs' claim for time spent submitting their SOC 846 forms in person—i.e., the merits of Public Authority's claim on appeal—Public Authority makes a series of assertions concerning the evidence presented at trial, none of which establishes the legally insufficiency of plaintiffs' claim. Public Authority maintains that "[t]he fact that SOC 846 forms were accepted by the Public Authority at the enrollment center did not change the state[-]imposed obligation that current providers appear in person." Yet, plaintiffs presented evidence that Public Authority did not merely accept SOC 846 forms, but rather that Public Authority affirmatively directed plaintiffs to submit their SOC 846 forms in person, notwithstanding the lack of any statutory mandate for "current providers" to take such action under section 12301.24, subdivision (c).²⁰ Thus, a reasonable jury could find that Public Authority required plaintiffs to submit their SOC 846 forms in person.

20 Public Authority acknowledges in its reply brief, "As noted by [plaintiffs] some of the instructions sent by the Public Authority told providers to bring the form [i.e., SOC 846]."

Public Authority also notes that DSS sent Public Authority various letters and bulletins instructing it with respect to how to comply with the statutory mandates contained in sections 12301.24 and 12305.81. However, Public Authority fails to identify any evidence establishing, as a matter of law, that the DSS instructed Public Authority to require "current providers" (§ 12301.24, subd. (c)) to submit their SOC 846 forms in person. In fact, the DSS letter that Public Authority quotes in its reply brief suggests, by way of negative inference, the opposite—that current providers were not required to submit SOC 846 forms in person. Public Authority states in its reply brief:

"The various bulletins repeatedly emphasized that providers must complete four requirements which include all the mandates of sections 12301.24 and 12305.81 [citations] and reminded the public entities that existing [i.e., current] providers 'are required to submit SOC 426 in person . . . and also return a signed SOC 846.' " (Italics added.)

Finally, Public Authority contends that the evidence establishes that "no one travelled to an Enrollment Center solely to submit their SOC 846 form." (Italics added.) However, Public Authority presents no authority for its suggestion that plaintiffs had to travel to enrollment centers solely for a compensable purpose in order for plaintiffs to be entitled to receive minimum wages for their travel time. Phrased differently, Public Authority advances no compelling argument for why, as plaintiffs state, "travel time necessitated both by a non-compensable function [i.e., submitting SOC 426, 426A forms] and a compensable function [submitting SOC 846 forms] would not be compensable at all." (Italics added.) We agree that there is no support in California law for the implicit premise in Public Authority's contention that an employer may escape paying compensation for hours worked merely because the employee would otherwise be engaging in a similar activity even without the employer's directive.

Further, under California law, while an employee's ordinary commuting time is not compensable, time that an employee spends commuting subject to an employer's control is compensable.²¹ (Morillion v. Royal Packing Co. (2000) 22 Cal.4th 575, 587 (Morillion) [employees performed compensable hours worked where employer required employees to meet at designated places to take its buses to work since they were " 'subject to the control of an employer' "]; compare with Hernandez v. Pacific Bell Telephone Co. (2018) 29 Cal.App.5th 131, 141 (Hernandez) [concluding that voluntary program that permitted employees to commute from home to worksites did not constitute compensable work under the Morillion "control test"].)²² The jury could have reasonably found that the time plaintiffs spent submitting their SOC 846 forms pursuant to Public Authority's directives constituted commuting time that was both subject to their employer's²³ control and was not state mandated.

21 As discussed in part III.A.1.a, ante, Wage Order No. 15 defines " '[h]ours worked' " as "the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so." (Cal. Code Regs., tit. 8, § 11150, subd. (2)(H).) In Morillion, the court concluded that "the 'suffered or permitted to work' language does not limit whether time spent 'subject to the control of an employer' is compensable." (Morillion, supra, 22 Cal.4th at p. 582.)

22 The Hernandez court also concluded that the employees participating in the voluntary home to worksite commute program were not performing " 'hours worked,' " under the "suffer or permit to work test," italics omitted. (Hernandez, supra, 29 Cal.App.5th at pp. 141-145.) We need not consider this aspect of Hernandez since we conclude that a jury could have reasonably found that Public Authority required plaintiffs to turn in their SOC 846 forms in person, and that plaintiffs' commute time was thus compensable under the "control" test discussed in the text.

23 As discussed in part III.B, post, we conclude that the trial court properly instructed the jury that Public Authority was plaintiffs' employer.

Indeed, the Morillion court rejected the argument that travel time was noncompensable because the employees' commute would have occurred irrespective of the employer's directive to ride employer buses:

"Arguing that the compelled nature of plaintiffs' travel is not dispositive, [employer] underscores the Court of Appeal's policy argument: 'Since the commute was something that would have had to occur regardless of whether it occurred on [employer's] buses, and [plaintiffs] point to no particular detriment that ensued from riding the [employer's] buses,' compensating employees for this commute time would not 'make sense, as a matter of policy.' We are not persuaded." (Morillion, supra, 22 Cal.4th at p. 587.)

Similarly, in this case, even assuming that plaintiffs' travel to the enrollment centers "was something that would have had to occur regardless" of Public Authority's directive for plaintiffs' to bring their SOC 846 forms to enrollment centers (Morillion, supra, 22 Cal.4th at p. 587), plaintiffs presented evidence from which a jury could find that they were subject to the control of Public Authority when they travelled to the enrollment centers and submitted their SOC 846 forms in person, and that they were thus entitled to be compensated for that time.²⁴

24 In light of our conclusion that the jury could have reasonably found that the time plaintiffs spent travelling to enrollment centers to turn in their SOC 846 was compensable, we need not consider plaintiffs' contention that the verdict may also be affirmed on the ground that "the in-person submission of the . . . SOC 846 [forms] necessarily added to the time it took for [plaintiffs] to undergo the process," once they were at an enrollment center including adding to the time plaintiffs spent "waiting in line" to submit the forms.

Accordingly, we conclude that Public Authority is not entitled to reversal of the judgment on the ground that the class claim for wages for the time that plaintiffs spent travelling to an enrollment center to submit SOC 846 forms and in submitting SOC 846 forms fail as a matter of law.²⁵

25 Public Authority also contends that the judgment on the class claim cannot be affirmed on the ground that plaintiffs were "entitled to minimum wages for the time to complete the SOC 846 form when the state mandated completion of that form[.]" (Italic added.) Although we need not consider this contention in light of our conclusion that the judgment on the class claim may be affirmed on the basis of the travel time theory discussed in the text, we note that nothing in the language of either the court's special instruction on the class claim (see pt. III.A.2.c, ante) or the jury's verdict (see pt. III.A.2.e, ante) supports Public Authority's suggestion that the jury awarded plaintiffs damages for time spent completing the SOC 846 forms. In addition, as outlined in footnote 17, ante, the jury awarded plaintiffs the exact amount of damages that plaintiffs' counsel sought for time plaintiffs spent in "travel[ing] to [and from] the enrollment center[s] . . . ." (Italics added.)

4. The trial court did not err in instructing the jury on the class action claim

Public Authority claims that the judgment should be reversed for instructional error. It raises several distinct claims in that regard, each of which we address below.

"We review de novo the question of whether the trial court's instructions to the jury were correct." (Maureen K. v. Tuschka (2013) 215 Cal.App.4th 519, 526 (Maureen K.)

a. Public Authority has not established that the trial court erred in denying its requested No Compensation Instruction

In its opening brief on appeal, Public Authority notes that the Woodruff I court concluded that "time spent complying with a government directive does not constitute hours worked." (Citing Woodruff I, supra, D062180, slip opn. at pp. 41-42, fn. 23.) Public Authority argues that the trial court erred in denying a "requested instruction [that] was consistent with that determination."

"A party is entitled upon request to correct, nonargumentative instructions on every theory of the case advanced by him which is supported by substantial evidence." (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 572 (Soule).) "A court may refuse a proposed instruction that incorrectly states the law or is argumentative, misleading, or incomplete." (Caldera v. Department of Corrections and Rehabilitation (2018) 25 Cal.App.5th 31, 44.) "The trial court has no duty to instruct on its own motion, nor is it obligated to modify proposed instructions to make them complete or correct. [Citations.] Such instructions may be rejected without the trial court's attempting to modify or correct them. [Citation.]" (Maureen K., supra, 215 Cal.App.4th at p. 526.)

Public Authority requested that the court instruct the jury pursuant to the No Compensation Instruction. The No Compensation Instruction stated as follows:

"Plaintiffs are seeking to be compensated for the time they claim they spent completing the State-mandated enrollment process for

Current Providers in 2009-2010. The term 'Current Providers' is limited to those providers who were already proving services to an IHSS recipient before October 31, 2009. Plaintiffs contend they were told to attend classroom instruction in connection with the enrollment process.[²⁶] [Public Authority] contends that there was no class offered or required; the [Public Authority] contends that it only required that all Current Providers and Prospective Providers . . . take those steps that were mandated by the State.

"The State imposed certain requirements on all Current Providers and created certain forms that all providers were required to sign and submit. The State required all Current Providers to complete an orientation and enrollment process. The State did not require then Current Providers to attend a class, but left Current Providers the option to attend a class if they chose to do so.

"The State required all Current Providers to review orientation materials and verify that they had reviewed it [sic]. You may not award compensation to the plaintiffs for the time they spent reviewing these materials.

"The State required all Current Providers to submit State-mandated paperwork in person at the enrollment center. The State also required that all Current Providers present two forms of specific, original identification in person at an enrollment center. You may not award compensation to the plaintiffs for the time or expense including travel time and expenses, incurred in submitting the paperwork or in presenting identification in person at an enrollment center.

"The State required all Current Providers to complete a criminal background check at their expense. You may not award compensation to the plaintiffs for the time or expense associated with the criminal background check." (Italics added.)"

26 As noted in footnote 5, ante, the jury found in favor of Public Authority with respect to whether plaintiffs had been required to attend "any class, instruction, or training session at an Enrollment Center" and no claims pertaining to this portion of the jury's verdict are presented on appeal.

The italicized portion of Public Authority's No Compensation Instruction was misleading because it suggested that the State had mandated that plaintiffs turn in all of their "paperwork" (i.e., both the SOC 426, 426A forms and the SOC 846 forms) in person, while plaintiffs presented evidence that it was solely Public Authority that mandated that plaintiffs turn in the SOC 846 forms in person. (See pt. III.A.2.b, ante.) Further, since the term "paperwork" in the requested instruction is most reasonably interpreted as including the SOC 846 form, the instruction is legally incorrect in that it would have informed the jury that it could not award plaintiffs compensation "for the time . . . including travel time . . . incurred in submitting the paperwork,"—a result contrary to our conclusion in part III.A.3, ante that the jury could have found that plaintiffs were entitled to be compensated for their travel time in turning in their SOC 846 forms. Accordingly, since Public Authority's No Compensation Instruction was misleading and legally incorrect, the trial court did not err in refusing to instruct the jury pursuant to that instruction.²⁷

27 Stated differently, we agree with plaintiffs that Public Authority's requested instruction "aggregated the 'paperwork' [that] the State did not require to be submitted in person [i.e., SOC 846] with the 'paperwork' which the State did require to be submitted in person [i.e., SOC 426, 426A]," and for that reason was "fatally defective." (Emphasis altered.)

b. Public Authority forfeited the instructional claim that it raises for the first time on reply

In its reply brief, Public Authority argues for the first time on appeal that the trial court erred in denying its request to instruct the jury pursuant to the Time Spent Instruction.²⁸ In its claim of instructional error in its opening brief,²⁹ Public Authority did not cite the pages of the appellant's appendix containing the Time Spent Instruction and it did not quote or otherwise discuss the wording of the Time Spent Instruction. Nor did Public Authority address the arguments for and against the giving of such an instruction that the parties presented in the trial court. Rather, in the portion of its opening brief raising its claim of instructional error, Public Authority cited to a single requested jury instruction—the No Compensation Instruction.³⁰

28 The Time Spent Instruction provided as follows:

"Generally, an employer must compensate its employees for each hour worked. However, if the State imposes a directive on an employee in order for the employee to be eligible for continued employment, the time the employee spends to comply with that directive shall not be considered 'hours worked.' The employer is not required to compensate an employee for the time the employee spends complying with a State directive."

29 Public Authority presented its argument as to instructional error on pages 48 through 52 of its opening brief.

30 Specifically, Public Authority discussed the Woodruff I court's determination that time spent complying with a government directive does not constitute hours worked and stated, "The Public Authority's requested instruction was consistent with that determination. (3 AA 644-645.)" The No Compensation Instruction appears at pages 644 and 645 of Appellant's Appendix.
While the subheading of the section was entitled, "The court erred in refusing the instruction on time spent complying with state directives does not constitute 'hours worked,' " (some capitalization omitted) the wording of the subheading could refer to either the No Compensation Instruction (e.g., "No compensation for time spent complying with state directive") or the Time Spent Instruction (e.g., "Time spent complying with state directive does not constitute 'hours worked' "). The title of the subheading thus did not identify which of these instructions Public Authority contended that the trial court erred in refusing. Further, as noted in the first paragraph of this footnote, in the body of its instructional argument in its opening brief, Public Authority indicated that it was claiming that the trial court had erred in refusing to instruct the jury pursuant to the No Compensation Instruction.

The law is well established that " ' "points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before." ' " (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764 (Reichardt).) The rule is based on the premise that " ' "[t]o withhold a point until the closing brief would deprive the respondent of his [or her] opportunity to answer it or require the effort and delay of an additional brief by permission." ' " (Ibid.)

Public Authority has not presented any argument on appeal for raising its claim pertaining to the Time Spent Instruction for the first time on reply or otherwise explain its failure to properly raise a claim pertaining to the Time Spent Instruction in its opening brief. Instead, in its reply brief, Public Authority cites to the Time Spent Instruction and contends that "[r]espondents [i.e., plaintiffs] misdirect this Court's attention to a different proffered instruction (Vol. 3. AA 645) [i.e., the No Compensation Instruction] rather than the actual instruction at issue (Vol. 4 AA 759) [i.e., the Time Spent Instruction] . . . ." (Italics added.)

On the contrary, in responding to Public Authority's claim on appeal, plaintiffs reasonably interpreted Public Authority as contending that the trial court erred in refusing the No Compensation Instruction. As discussed in part III.A.3, ante, plaintiffs persuasively argued that the trial court properly refused the No Compensation Instruction. Plaintiffs did not address the Time Spent Instruction in their brief. However, plaintiffs' failure to discuss the Time Spent Instruction in its brief did not constitute "misdirect[ion]," since Public Authority did not properly raise a claim pertaining to the Time Spent Instruction in its opening brief.

Under these circumstances, we conclude that Public Authority forfeited its claim pertaining to the Time Spent Instruction. (See Varjabedian v. Madera (1977) 20 Cal.3d 285, 295, fn. 11 ["Obvious reasons of fairness militate against consideration of an issue raised initially in the reply brief of an appellant"].)

c. The trial court did not err in instructing the jury pursuant to Special Instruction No. 17

Public Authority contends that Special Instruction No. 17 was erroneous because it "misled the jury to believe that only criminal background check compliance was not compensable time." This argument is unpersuasive because the instruction does not state as much. Rather, Special Instruction No. 17 merely says, consistent with Woodruff I, that "Plaintiff Class is not entitled to be compensated for time expended in completing criminal background checks."

We also reject Public Authority's contention that Special Instruction No. 17 was deficient "in indicating that current providers were entitled to compensation for time spent 'in submitting their signed Form 846 Provider Agreements,' " and that the special verdict forms were similarly deficient because they "suggested class members were entitled to compensation for the time completing and submitting their SOC 846 forms . . . ." (Italics added.) The jury instruction and the verdict form required the jury to determine whether plaintiffs had performed "hours worked" in submitting the forms,—the appropriate inquiry under California law—and neither the jury instruction nor the verdict form directed the jury to return a verdict in favor of plaintiffs, as Public Authority appears to suggest.³¹

31 Public Authority also rehashes the argument that we rejected in part III.A.3, ante, i.e., that plaintiffs were not entitled to be compensated for travel time for submitting their SOC 846 forms because they had to travel to the enrollment centers to turn in their SOC 426 forms. Since Public Authority fails to connect this argument to its claim of alleged instructional error, we reject it for the reasons stated part III.A.3, ante.

d. Public Authority has not demonstrated that the trial court erred in its response to a jury question

Public Authority also contends that the trial court's alleged instructional errors were prejudicial in light of the court's response to the jury's question concerning whether "Form 846 [is] considered separate from all background check required documents required at the Enrollment Center." In light of our conclusion that Public Authority has failed to establish that the court committed any instructional error, we need not consider Public Authority's argument as to prejudice. However, to the extent that Public Authority's briefing may be read to assert that the trial court erred in responding to the jury's question, we reject this claim.

Public Authority suggests that the trial court erred in "interpret[ing] the question literally," and contends that the jury was "not asking about, whether these were separate forms or documents." However, it was reasonable for the trial court to interpret the jury's question "literally," and to understand the jury to be asking, as the plain language of the question suggested, whether SOC 846 was a required background check document. That is because if SOC 846 were a background check document, then Special Instruction No. 17 arguably would have been in conflict with itself for the following reason.

Special Instruction No. 17 informed the jury that plaintiffs were not entitled to be compensated for "time expended in completing criminal background checks." Thus, if SOC 846 were part of the "background check required documents," then plaintiffs would not have been entitled to compensation for their submission under the instruction. Yet, the trial court also instructed the jury that plaintiffs were entitled to be compensated for "hours worked," thereby informing the jury that it was to determine whether plaintiffs were to be compensated for their time spent submitting SOC 846 forms. Thus, by informing the jury that SOC 846 forms were not part of the criminal background check documents,³² the trial court clarified a reasonable source of confusion for the jury, thereby freeing it to answer the essential question of fact presented with respect to the class claim, i.e., whether plaintiffs had performed "hours worked" in submitting their SOC 846 forms.

32 Public Authority fails to demonstrate that the trial court's response to the jury's question—"[f]orm 846 is separate from the background checks"—was incorrect.

Finally, we are not persuaded by Public Authority's argument that the jury's question demonstrates that the "jury struggled with the evidence that current providers were required by the state to travel to enrollment centers to submit identification and SOC 426 forms in person," (italics added) since the question did not mention SOC 426 forms. In short, the trial court adopted a reasonable approach and interpreted the jury's question pursuant to its plain and literal terms, providing a clear and responsive answer that assisted the jury in resolving whether plaintiffs performed "hours worked" in submitting their SOC 846 forms.

Accordingly, we conclude that the trial court did not err in instructing the jury on the class action claim. B. The trial court did not err in determining that Public Authority was the individual plaintiffs' employer for purposes of their claims for overtime and expense reimbursements

Public Authority claims that the portion of the judgment premised on the jury's awarding the individual plaintiffs overtime pay and expense reimbursements should be reversed because the trial court erred in determining that Public Authority was the plaintiffs' employer as a matter of law. Public Authority contends that the trial court should have instructed the jury that the jury was required to determine whether Public Authority was the plaintiffs' employer for purposes of these claims and should have permitted Public Authority to present evidence on these issues.

Plaintiffs claim that the trial court properly determined that our decision in Woodruff I conclusively established, as a matter of law, that Public Authority was the plaintiffs' employer with respect to their individual claims for overtime and expense reimbursements.

1. Law of the case

As discussed in part III.A.3, ante, " ' " '[t]he decision of an appellate court, stating a rule of law necessary to the decision of the case, conclusively establishes that rule and makes it determinative of the rights of the same parties in any subsequent retrial or appeal in the same case.' " ' " (Morales, supra, 25 Cal.App.5th at pp. 98-99.)

2. Woodruff I

In Woodruff I, this court considered, among other claims, whether the trial court erred "by sustaining Public Authority's demurrer to [plaintiffs'] claims for unpaid overtime wages on the ground that Public Authority, as a public entity, is exempt from subject wage and hour statutes and regulations." (Woodruff I, supra, D062180, slip opn. at pp. 2-3.) In analyzing this claim, we first considered Public Authority's contention that "it is not the [plaintiffs'] employer" for purposes of compliance with wage and hour laws.³³ (Id. at p. 17.) We explained the basis for Public Authority's contention in part as follows:

33 We also explained that the trial court had concluded that Public Authority was the plaintiffs' employer (Woodruff I, supra, D062180, slip opn. at p. 17), and that the trial court had implicitly concluded that Public Authority was the plaintiffs' employer for purposes of wage and hour laws. (Id. at p. 17, fn.11.) The Woodruff I court considered whether the trial court had erred in concluding that Public Authority was plaintiffs' employer for purposes of wage and hour laws as a potential alternative ground for affirming the trial court's sustaining of Public Authority's demurrer. (Id. at pp. 17-18.)

"Public Authority argues that every IHSS provider has more than one employer, each of which acts as an employer only for certain specified purposes. Public Authority asserts that it does not exercise control over the wages, hours, or working conditions of any provider and instead, acts merely as 'a payroll processor.' Public Authority maintains that the State of California is the employer of IHSS personnel for purposes of workers compensation, unemployment, federal and state income tax withholding, and old-age survivor and disability benefits [citations], and that the IHSS recipient is the provider's employer for purposes of other applicable state or federal laws, including wage laws." (Woodruff I, supra, D062180, slip opn. at p. 18, italics added.)

After extensively discussing the relevant case law and statutory scheme, the Woodruff I court concluded, "The trial court did not err when it determined that Public Authority is the employer of IHSS personnel [i.e., plaintiffs] under the IHSS statutory scheme for purposes of compliance with wage and hour laws." (Woodruff I, supra, D062180, slip opn. at p. 23.)³⁴

34 The Woodruff I court also concluded, "The trial court did not err when it determined that Public Authority is [plaintiffs'] employer under the IHSS statutory scheme." (Woodruff I, supra, D062180, slip opn. at p. 18.)

In addition, the Woodruff I court expressly concluded that the trial court "erred when it denied [plaintiffs] leave to amend the complaint to add a claim for reimbursement of employee expenses under Labor Code section 2802." (Woodruff I, supra, D062180, slip opn. at p. 27.) The Woodruff I court also concluded that the "[t]he trial court erred in sustaining Public Authority's demurrer to claims for statutory and regulatory overtime." (Id. at p. 28.)

3. Application

In its opening brief on appeal, Public Authority acknowledges that the trial court "interpreted this court's decision in Woodruff I as conclusively establishing the Public Authority as the employer responsible for payment of overtime and expenses." However, Public Authority's opening brief on appeal fails to provide any argument with respect to whether the trial court erred in concluding that Woodruff I conclusively established Public Authority as plaintiffs' employer responsible for payment of overtime and expense reimbursements. Nor does the Public Authority's opening brief provide any discussion of the law of the case doctrine with respect to this issue³⁵ or why that doctrine does not apply to preclude the Public Authority from relitigating the question of whether it was plaintiffs' employer for purposes of their claims for overtime and expense reimbursements.

35 Public Authority's brief does discuss the law of the case doctrine with respect to the plaintiffs' class claim for minimum wages.

As discussed in part III.B.2, ante, our decision in Woodruff I concluded that Public Authority was plaintiffs' employer for purposes of their claims for overtime and expense reimbursements. (Woodruff I, supra, D062180, slip opn. at p. 23.) This conclusion was "necessary to the decision of the case." (Morales, supra, 25 Cal.App.5th at p. 98.) Woodruff I therefore, " ' "conclusively establishes that rule and makes it determinative of the rights of the same parties in any subsequent retrial or appeal in the same case." ' " (Ibid.) Public Authority failed to demonstrate that the trial court erred in concluding that Woodruff I established that Public Authority is the plaintiffs' employer for purposes of plaintiffs' claims for overtime and expense reimbursements.³⁶

36 On the last page of its reply brief, Public Authority suggests that the law of the case doctrine does not apply with respect to this issue because, on remand, there was a "substantial difference in the evidence to which the announced principle of law [was] applied." Without intending to suggest that this argument has any merit, we need not address it, since Public Authority raised this contention for the first time in reply and Public Authority did not provide any reason for its failure to raise this contention in its opening brief. (See, e.g., Reichardt, supra, 52 Cal.App.4th at pp. 764-766 [points raised in a reply brief will not ordinarily be considered unless good cause is presented for failing to raise the point previously].)

Accordingly, we conclude that the trial court did not err in instructing the jury that Public Authority was the plaintiffs' employer for purposes of the individual claims for overtime and expense reimbursements. We further conclude that the trial court did not err in refusing Public Authority's request to instruct the jury that it was required to determine whether Public Authority was the plaintiffs' employer for purposes of these claims and in precluding Public Authority from presenting evidence with respect to this issue. C. Public Authority has not established that the trial court committed any prejudicial error with respect to the personal attendant exemption to the payment of overtime wages

Public Authority claims that the judgment on the individual plaintiffs' claims for overtime should be reversed because the trial court committed two errors related to the personal attendant exemption to overtime pay. Public Authority claims that the trial court erred in the manner by which it instructed the jury with respect to the exemption and also maintains that the trial court erred in excluding certain evidence that Public Authority offered in an attempt to prove the exemption. We need not determine whether the trial court erred in either respect because Public Authority failed to establish prejudice with respect to either asserted error, as is required.

1. The personal attendant exemption to the payment of overtime wages

As discussed in part III.A.1.a, ante, Wage Order No. 15 applies to plaintiffs. "Wage [O]rder No. 15 provides that nonlive-in employees shall not be employed more than eight hours in any workday or more than 40 hours in any workweek unless the employee receives one and a half times the employee's regular rate of pay for all hours worked above 40 hours in the workweek." (Woodruff I, supra, D062180, slip opn. at p. 34.)

However, Wage Order No. 15 provides an exemption from various provisions of the order, including the provision requiring the payment of overtime wages, for "personal attendants." (Cal. Code Regs., tit. 8, § 11150, subd. (1)(B).) The order defines "personal attendant" in relevant part as follows:

" 'Personal attendant' . . . means any person employed by a private householder . . . to supervise, feed, or dress a child or person who by reason of advanced age, physical disability, or mental deficiency needs supervision. The status of 'personal attendant' shall apply when no significant amount of work other than the foregoing is required." (Cal. Code Regs., tit. 8, § 11150, subd. (2)(J).)

"[A] 'significant amount' of work under the state regulation is that exceeding 20 percent of the total hours worked." (Guerrero, supra, 213 Cal.App.4th at p. 956.) Courts "narrowly construe exemptions against the employer, 'and their application is limited to those employees plainly and unmistakably within their terms.' " (Peabody v. Time Warner Cable, Inc. (2014) 59 Cal.4th 662, 667.) "Compliance with the requirements of [an] exemption is determined on a workweek basis." (Id. at p. 670.)

2. Public Authority's claims

a. Instructional error

Public Authority claims that the following portion of the trial court's jury instruction concerning the personal attendant exemption was erroneous:

"No matter how many hours a Plaintiff worked in any particular workweek, they are not entitled to receive overtime compensation for that workweek if [Public Authority] has proved plainly and

unmistakably that the Plaintiff was 'exempt' during that workweek." (Italics added.)

Public Authority contends that it was required to prove the application of the exemption by a mere preponderance of the evidence and maintains that the trial court's instruction improperly imposed "a higher, more stringent, burden of proof" than is legally required.

b. Evidentiary error

During the trial, Public Authority's counsel attempted to elicit testimony from a Public Authority employee pertaining to the maximum number of hours that an IHSS recipient may be authorized to receive "domestic services" under DSS regulations. The trial court sustained plaintiffs' objections to the introduction of the evidence.³⁷ On appeal, Public Authority contends that this evidence was relevant to demonstrate that "among IHSS authorized hours a recipient could receive no more than 20 [percent] related to domestic services and therefore the personal attendant exemption to overtime applied."

37 The asserted error occurred during the following colloquy:

"[Public Authority's counsel]: Ms. McCarthy, based on your knowledge of the State regulations, what is the maximum number of hours a — that can be approved for domestic services?

"[Plaintiffs' counsel]: Objection; calls for a legal conclusion, lacks foundation, 352, relevance, order in limine.

"[The court]: In that form, sustained. You can talk about what was actually approved.

"[Plaintiffs' counsel]: Lacks foundation because of who does the approval, Your Honor.

"[The court]: That may be, but you can show that — what was approved, but sustained."

After a lengthy reported sidebar conference during which the trial court and the parties discussed the admissibility of the evidence, the trial court reaffirmed its ruling sustaining plaintiffs' objection to the admission of the evidence.

3. The relevant law governing the determination of prejudice

a. Instructional error

"A judgment may not be reversed for instructional error in a civil case 'unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.' (Cal. Const., art. VI, § 13.)" (Soule, supra, 8 Cal.4th at p. 580.) " 'No form of civil trial error justifies reversal and retrial, with its attendant expense and possible loss of witnesses, where in light of the entire record, there was no actual prejudice to the appealing party.' " (F.P. v. Monier (2017) 3 Cal.5th 1099, 1112.)

An instructional error is harmless where "it is not reasonably probable defendant would have obtained a more favorable result in its absence." (Soule, supra, 8 Cal.4th at p. 570.) "In assessing prejudice from an erroneous instruction, we consider, insofar as relevant, '(1) the degree of conflict in the evidence on critical issues [citations]; (2) whether respondent's argument to the jury may have contributed to the instruction's misleading effect [citation]; (3) whether the jury requested a rereading of the erroneous instruction [citation] or of related evidence [citation]; (4) the closeness of the jury's verdict [citation]; and (5) the effect of other instructions in remedying the error [citations].' " (Id. at pp. 570-571.)

The law is well established that an "appellant has the burden on appeal of showing that an instructional error was prejudicial and resulted in a miscarriage of justice. [Citations.]" (American Master Lease LLC v. Idanta Partners, Ltd. (2014) 225 Cal.App.4th 1451, 1485 (American Master Lease LLC.) Stated differently, an appellant has a "duty to tender a proper prejudice argument." (Paterno v. State of California (1999) 74 Cal.App.4th 68, 106.)

b. Exclusion of evidence

As with instructional error, a judgment may not be reversed in a civil case based on the "the improper . . . rejection of evidence, . . . unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice." (Cal. Const., art. VI, § 13; Evid. Code § 354 ["A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous exclusion of evidence unless the court which passes upon the effect of the error or errors is of the opinion that the error or errors complained of resulted in a miscarriage of justice . . ."].)

The law is also clear and well established that, to obtain the reversal of a judgment for evidentiary error, "it is the burden of appellants to show that it is reasonably probable that they would have received a more favorable result at trial had the error not occurred." (Meeks v. AutoZone, Inc. (2018) 24 Cal.App.5th 855, 877; see, e.g., IIG Wireless, Inc. v. Yi (2018) 22 Cal.App.5th 630, 655 [rejecting evidentiary claim because appellant "offers no argument that the erroneous admission of this evidence was so prejudicial that reversal is required"]; Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 282 [rejecting claim that trial court committed reversible error in excluding evidence because appellants "fail to demonstrate how any claim of error in the trial court's exclusion of evidence would have made any difference in the outcome"].)

4. Public Authority has not established that the trial court committed any reversible error

Public Authority's opening brief on appeal does not contain a developed prejudice argument with respect to either asserted error. Its claims of instructional and evidentiary error fail for this reason alone. (See pt. III.C.3.a-b, ante [appellant must demonstrate prejudice with respect to claims of instructional or evidentiary error].) Further Public Authority acknowledges that each "plaintiff testified that she performed household chores greater than 20% of the time for every week that she worked." (Italics added.) Public Authority also fails to point to any contrary evidence from which we could conclude that there was a reasonable probability that the jury might have reached a more favorable verdict to Public Authority but for the asserted errors.

In addition, with respect to the asserted instructional error, the one Soule factor for determining prejudice that Public Authority addresses in its opening brief supports the conclusion that any instructional error was harmless rather than prejudicial. During his closing argument, plaintiffs' counsel argued as follows:

"[The plaintiffs' are] not entitled to receive overtime if the defendant has proved plainly and unmistakably that the plaintiff was exempt during that workweek. What does it mean by "prove plainly and unmistakably"? The burden of proof in this case is to prove something more likely than not, but the facts that they have to prove would have to make it plain and unmistakable and they would have to prove that for each workweek that they worked overtime." (Italics added.)

Plaintiffs' counsel thus expressly reiterated to the jury that the requisite burden of proof was "more likely than not," contrary to Public Authority's contention that the instruction was erroneous because it "indicated a higher, more stringent, burden of proof." We therefore disagree with Public Authority's suggestion that "[plaintiffs'] argument to the jury may have contributed to the instruction's misleading effect." (Soule, supra, 8 Cal.4th at p. 570.) Further, since Public Authority makes no argument that the asserted instructional error was prejudicial in light of the other Soule factors, it clearly has not carried its "burden on appeal of showing that an instructional error was prejudicial and resulted in a miscarriage of justice." (American Master Lease LLC, supra, 225 Cal.App.4th at p. 1485.)

With respect to the trial court's purported error in excluding evidence pertaining to the number of hours that DSS regulations authorized for "domestic services," Public Authority asserts that this exclusion was "prejudicial because it prevented . . . Public Authority from establishing evidence showing the maximum IHSS authorized hours for domestic services could not exceed the percentages required for the 'personal attendant' exemption from overtime." However, Public Authority has not demonstrated that such "domestic services" are in fact, as Public Authority suggests in its reply brief, "household tasks that would fall outside the definition of a personal attendant."³⁸ Public Authority also fails to demonstrate that it is reasonably probable that it would have received a more favorable result at trial if the trial court had permitted the introduction of evidence pertaining to the DSS regulation in light of fact that Public Authority did not present any evidence with respect to the hours that plaintiffs' actually worked, and plaintiffs' testimony supported the jury's findings that Public Authority failed to carry its burden of proving the applicability of the exemption.

38 In its reply brief, Public Authority provides a citation to the DSS regulation, but it fails to demonstrate that it made a specific offer of proof in the trial court showing the relationship between the tasks authorized pursuant to the DSS regulation and those performed by personal attendants under Wage Order No. 15. Thus, Public Authority has not demonstrated, as appears to be its contention of appeal, that plaintiffs must have been exempt because the work that they were authorized to perform under the DSS regulations would have meant that they were personal attendants under Wage Order No. 15.

Accordingly, we conclude that Public Authority has not established that the trial court committed any reversible error with respect to its instructions or evidentiary rulings concerning the personal attendant exemption.³⁹ D. The trial court did not err in instructing the jury with respect to the individual plaintiffs' claims for expense reimbursements under Labor Code section 2802

39 Plaintiffs claim that any instructional error was not prejudicial for the additional reason that they were entitled to overtime wages under a separate provision in a Department of Social Services Policy Manual implementing the IHSS program. (Citing DSS Manual, Reg. No. 30-764.32, Manual Letter No. SS-98-01, p. 92, eff. Nov. 14, 1998.) In the trial court, Public Authority contended that "the State considered [Reg. No.] 30-764.32 to have been repealed but kept it on the books as an inoperative regulation for over 30 years." In light of our conclusion that Public Authority failed to establish any reversible error for the reasons stated in the text, we need not consider what effect, if any, Reg. No. 30-764.32 has on the issues in this case.

Public Authority raises several claims related to the trial court's jury instructions with respect to the individual plaintiffs' claims for expense reimbursements under Labor Code section 2802.⁴⁰

40 Labor Code section 2802 provides generally that "[a]n employer shall indemnify his or her employee all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties . . . ." (See fn. 41, post.)

Public Authority contends that the trial court erred in instructing the jury that Public Authority was plaintiffs' employer for purposes of their claim for expense reimbursements under Labor Code section 2802. This claim is without merit because, as we concluded in part III.B, ante, Public Authority fails to demonstrate that the trial court erred in concluding that Woodruff I established as a matter of law of the case that Public Authority was the plaintiffs' employer for purposes of plaintiffs' claim for expense reimbursements.

Public Authority also argues that plaintiffs' Labor Code section 2802 claims are not legally viable because "[if] [the Legislature] had intended that providers be reimbursed for mileage, it would have expressly provided [for] this reimbursement in the Welfare and Institutions Code." As noted in part III.B.2, ante, the Woodruff I court held that plaintiffs could state a claim for Labor Code section 2802 expense reimbursements (Woodruff I, supra, D062180, slip opn. at pp. 23-27). In reaching this conclusion, the Woodruff I court considered Public Authority's contention that "[Plaintiffs] are not entitled to compensation for the expenses at issue because the more specific IHSS statutes [i.e., statutes contained in the Welfare and Institutions Code] do not provide for reimbursement of work-related expenses." (Id. at p. 25.) Public Authority fails to provide any argument as to why these conclusions are not law of the case. (See Morales, supra, 25 Cal.App.5th at p. 98.) Accordingly, Public Authority is not entitled to reversal on this ground.

Finally, Public Authority contends that the trial court's jury instructions⁴¹ with respect to the claims for expense reimbursements "had the effect of precluding the jury from considering whether plaintiffs voluntarily offered the use of their cars . . . . " (Citing O'Brien v. L. E. White Lumber Co. (1919) 43 Cal.App. 703, 706-707 (O'Brien).) In O'Brien, the Court of Appeal concluded that there was a lack of substantial evidence to support a jury's award in favor of a plaintiff against his former employer for the "use of his automobile in the service of the defendant." (O'Brien, supra, 43 Cal.App. at p. 704.) The O'Brien court reasoned that it was "abundantly clear from the evidence that the use of [plaintiff's] automobile in the defendant's business was made by [plaintiff] without any intention of making a charge therefor other than the value of the supplies which he drew from the defendant, and was therefore gratuitously given except to the extent it might be compensated by the value of such supplies." (Id. at pp. 706-707.)

41 The trial court instructed the jury on plaintiffs' expense reimbursements claims as follows:

"Plaintiffs contend that they are entitled to be reimbursed for travel expenses incurred in discharging their duties, such as performing errands related to medical services, such as picking up prescriptions, and/or performing errands related to domestic services, such as grocery shopping. State law requires an employer to 'indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties.' To prevail on such a claim, each plaintiff must establish that: (1) she is an employee of the Public Authority; (2) she incurred necessary expenses either in the discharge of her duties or in obeying her employer's directions; and (3) the employer failed to reimburse the plaintiff for such expenses.

"To recover, each plaintiff must show that the expense incurred was both reasonable and necessary.

"An employee may not waive or give up his or her right to be reimbursed for necessary expenditures or losses, including all reasonable costs, which may have been incurred by them in direct consequence of the discharge of their employment duties.

"Any express or implied agreement to waive or give up that right is null and void."

It is clear that Public Authority is not entitled to reversal on this ground. To begin with, the O'Brien court reversed a common law claim for reimbursement because there was no evidence that the plaintiff intended to seek reimbursement for the use of his automobile, and the O'Brien court concluded that the plaintiff "gratuitously" provided such use to the defendant employer. (O'Brien, supra, 43 Cal.App. at p. 707.) In this case, plaintiffs made a statutory claim for reimbursement under Labor Code section 2802,⁴² a claim that does not require proof of the plaintiffs' state of mind with respect to their intent to seek reimbursement.⁴³ Moreover, O'Brien predates the enactment of Labor Code sections 2802 and 2804, the latter of which invalidates any agreement made by an employee to waive the employee's right to expense reimbursement under Labor Code section 2802.⁴⁴ Since an employee may not waive his or her right to reimbursement under Labor Code section 2802, we have serious questions about whether evidence demonstrating that a plaintiff acted "gratuitously" (O'Brien, supra, 43 Cal.App. at p. 707) in incurring a business expense is relevant in a case in which the plaintiff proves the statutory elements of his or her Labor Code section 2802 claim for reimbursement.⁴⁵

42 Labor Code section 2802 provides in relevant part:

"(a) An employer shall indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer, even though unlawful, unless the employee, at the time of obeying the directions, believed them to be unlawful.

"[¶] . . . [¶]

"(c) For purposes of this section, the term 'necessary expenditures or losses' shall include all reasonable costs, including, but not limited to, attorney's fees incurred by the employee enforcing the rights granted by this section."

43 "[T]he elements of a [Labor Code] section 2802 claim are '(1) the employee made expenditures or incurred losses; (2) the expenditures or losses were incurred in direct consequence of the employee's discharge of his or her duties, or obedience to the directions of the employer; and (3) the expenditures or losses were necessary.' " (USS-Posco Industries v. Case (2016) 244 Cal.App.4th 197, 205.)

44 Labor Code section 2804 provides, "Any contract or agreement, express or implied, made by any employee to waive the benefits of this article or any part thereof, is null and void, and this article shall not deprive any employee or his personal representative of any right or remedy to which he is entitled under the laws of this State."
Labor Code sections 2802 and 2804 were both first enacted in 1937. (Stats. 1937, ch. 90, pp. 258-259.)

45 Public Authority does not claim that plaintiffs failed to prove the statutory elements of their Labor Code section 2802 claim.

However, even assuming, strictly for purposes of this opinion, that Public Authority is correct that evidence that the plaintiffs "voluntarily offered the use of their cars," was relevant to the jury's determination of plaintiffs' Labor Code section 2802 claim, there is no evidence in the record that Public Authority objected to the trial court's expense reimbursement instructions on this ground in the trial court or that Public Authority requested an instruction on the effect of the plaintiffs' purported "voluntar[y] us[e] [of] their cars." Nor has Public Authority established that the jury instructions that the trial court gave (see fn. 41, ante), which track the language of the relevant statutes (Labor Code sections 2802 and 2804), and which required the plaintiffs' to prove that the expenses incurred were "both reasonable and necessary," were legally incorrect.

Accordingly, we conclude that the trial court did not err in instructing the jury with respect to the individual plaintiffs' claims for expense reimbursement under Labor Code section 2802.

IV.

DISPOSITION

The judgment is affirmed. Public Authority is to bear costs on appeal.

AARON, J. WE CONCUR: HALLER, Acting P. J. IRION, J.