Opinion
NOT TO BE PUBLISHED
San Francisco City & County Super. Ct. No. CGC-09-484879.
SIMONS, Acting P.J.
Plaintiff and appellant Maria Tun Cun (appellant), a former employee of defendant and respondent Café Tiramisu, LLC (respondent), appeals from the summary judgment entered in favor of respondent. Appellant contends the trial court erred in concluding that settlement agreements she executed preclude her claims in the present case and are not invalid under Labor Code section 206.5. We affirm.
All undesignated section references are to the Labor Code.
Background
Respondent, a restaurant located in San Francisco, employed appellant as a bartender from February 2005 until her resignation in March 2007. On March 23, 2007, the day after her resignation, respondent provided appellant with a final paycheck that, according to respondent’s owner, was in the amount of all of the wages respondent believed was owed appellant.
In November 2007, appellant filed a complaint with the Division of Labor Standards Enforcement (DLSE), alleging that respondent owed her unpaid wages for overtime and missed meal breaks. She amended her DLSE complaint in August 2008 to allege that respondent owed her $14,765.17 in unpaid wages, plus penalties and interest. Respondent disputed that appellant was owed any unpaid wages, penalties, or interest.
In September 2008, prior to the DLSE hearing on appellant’s claim, the parties reached a settlement. Appellant agreed to release all employment-related claims against respondent, including those pled in her DLSE complaint, in exchange for the gross settlement amount of $6,500 ($3,500 was designated as wages, while $3,000 was designated as waiting-time penalties and interest). The parties memorialized the terms in two written settlement agreements (the Settlement Agreements): one a settlement agreement on a DLSE form releasing the wage claims in the DLSE complaint (the DLSE Settlement), and the other a settlement agreement and general release of all claims (General Release) that more comprehensively released all employment-related claims. Appellant personally signed each agreement.
The DLSE Settlement provided in relevant part: “In consideration of such promise and the other rights conferred by this agreement, [appellant] agrees to release, remise and forever discharge [respondent] from any and all claims asserted in the Complaint, or other agreed upon sums and from the payment of any other amounts not provided for herein which may be due [appellant] by reasons of such claims.”
The General Release provided in relevant part: “In consideration for [respondent’s] promises and payments set forth above, [appellant] agrees to forever and fully release and discharge [respondent]... from all claims and damages of every kind and nature, known and unknown, which exist or can arise out of [appellant’s] employment and/or separation from employment with [respondent], through and including the date of [her] signing of this Agreement. This release includes, but is not limited to, any rights or claims arising under the California Constitution; California statutory and common law (including contract law, employment law and tort law)...; any claim brought or which could have been brought in [DLSE] State Case No. 11-34727 LK; and any and all other federal, state and local laws, statutes, executive orders, regulations and common law; as well as any and all claims for attorneys’ fees and costs. [Appellant] and [respondent] agree that this is a compromise settlement of all such claims and therefore, this Agreement does not constitute any admission of liability on the part of [respondent].”
During the DLSE proceedings, appellant received assistance from the Instituto Laboral de la Raza, a nonprofit agency that assists workers in wage disputes with employers. In January 2009, respondent, through its counsel, mailed two cashier’s checks made payable to appellant to the Instituto Laboral de la Raza. The return receipt indicates the checks were received on January 30, but appellant did not cash or return them.
On February 10, 2009, appellant, along with other former employees of respondent, filed the instant lawsuit. On April 2, 2010, a First Amended Complaint (Complaint) was filed; appellant alleged causes of action for recovery of unpaid wages, constructive termination, and unfair business practices. The Complaint did not make reference to the Settlement Agreements.
In June 2010, respondent filed a motion for summary judgment as to appellant’s claims. The trial court granted the motion and entered judgment against appellant on her claims. This appeal followed.
Discussion
“ ‘A defendant is entitled to summary judgment if the record establishes as a matter of law that none of the plaintiff’s asserted causes of action can prevail.’ [Citation.] The pleadings define the issues to be considered on a motion for summary judgment. [Citation.] As to each claim as framed by the complaint, the defendant must present facts to negate an essential element or to establish a defense. Only then will the burden shift to the plaintiff to demonstrate the existence of a triable, material issue of fact. [Citation.]” (Ferrari v. Grand Canyon Dories (1995) 32 Cal.App.4th 248, 252.) “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, fn. omitted.) We review orders granting or denying a summary judgment motion de novo. (Iverson v. Muroc Unified School Dist. (1995) 32 Cal.App.4th 218, 222.) We make “an independent assessment of the correctness of the trial court’s ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law. [Citations.]” (Id. at pp. 222-223.)
The trial court granted summary judgment in favor of respondent and against appellant after concluding appellant’s claims were barred by the Settlement Agreements. On appeal, appellant does not dispute that the Settlement Agreements encompass all of her claims in the Complaint. Instead, she contends the Settlement Agreements are void under section 206.5, subdivision (a), which provides: “An employer shall not require the execution of a release of a claim or right on account of wages due, or to become due, or made as an advance on wages to be earned, unless payment of those wages has been made. A release required or executed in violation of the provisions of this section shall be null and void as between the employer and the employee. Violation [of the provisions] of this section by the employer is a misdemeanor.” Appellant contends the Settlement Agreements are, under section 206.5, prohibited releases of claims for wages due.
This is the current language of section 206.5, subdivision (a) (Stats. 2008, ch. 224, § 1), effective January 1, 2009. The changes from former section 206.5 (Stats. 1959, ch. 1066, § 1, p. 3127) do not affect our analysis in this case.
The court in Chindarah v. Pick Up Stix, Inc. (2009) 171 Cal.App.4th 796, 799 (Chindarah), considered the contention that “any settlement of a dispute over overtime compensation runs afoul of” section 206.5. Interpreting section 206.5 in light of relevant case law, the legislative history, and section 206, subdivision (a), the court concluded a release is enforceable where it was the “settlement of a bona fide dispute over wages already earned” and did not put conditions on payment of “wages concededly due.” (Chindarah, at p. 803.) In that case, the employee plaintiffs had settled their claims to overtime pay where there was a dispute as to whether their jobs were properly classified as exempt from the requirement to pay overtime. (Id. at p. 798.)
Section 206, subdivision (a), provides: “In case of a dispute over wages, the employer shall pay, without condition and within the time set by this article, all wages, or parts thereof, conceded by him to be due, leaving to the employee all remedies he might otherwise be entitled to as to any balance claimed.”
In Watkins v. Wachovia Corp. (2009) 172 Cal.App.4th 1576 (Watkins), the trial court granted summary judgment to the defendant employer where the plaintiff employee executed a release of all claims in exchange for enhanced severance benefits, and where the plaintiff had “received all pay that was concededly due her.” (Id. at p. 1586.) The court followed the Chindarah decision in accepting the employer’s argument that “section 206.5 does not prevent the settlement of wage claims, but simply prevents an employer from withholding wages concededly due in order to coerce a settlement of the disputed amount.” (Watkins, at p. 1586.) The court reasoned, “wages are not considered ‘due’ and unreleasable under... section 206.5, unless they are required to be paid under... section 206. When a bona fide dispute exists, the disputed amounts are not ‘due, ’ and the bona fide dispute can be voluntarily settled with a release and a payment—even if the payment is for an amount less than the total wages claimed by the employee. [Citation.]” (Id. at p. 1587.)
The Watkins court concluded the evidence “indisputably” established that a bona fide dispute existed when the employee signed the release, because the employee’s declaration indicated that, at the time, there was an ongoing disagreement about her entitlement to overtime pay. (Watkins, supra, 172 Cal.App.4th at p. 1587.) She averred that she had been told to work off the clock if she could not finish her work in an eight-hour day, she kept a set of separate timesheets indicating the time she actually worked, and she had “complained to management about not being paid overtime.” (Ibid.) The court concluded: “There is no evidence to the contrary; when [the employee] signed the release of all claims, including wage claims, she believed that she was entitled to additional overtime compensation. In other words, when [the employee’s] employment was terminated, she (1) received all wages [the employer] conceded were due to her (based on the timesheets she had submitted); (2) believed she possessed a claim for further overtime pay; and (3) voluntarily elected to receive enhanced severance benefits in exchange for releasing her claims against [the employer]. Under these circumstances, the release is enforceable.” (Ibid., fn. omitted.)
Under Watkins, the trial court in the present case properly granted summary judgment against appellant. Like the employee in Watkins, appellant was aware during her employment that there was a disagreement between respondent and its employees regarding the payment of overtime. She averred in her declaration, “During the entire time I worked for [respondent] the employees complained regarding the failure to pay overtime hours at the overtime rate. In my presence[, fellow employee] Vincent Tapia would have discussions with [respondent’s owner] on an almost monthly basis regarding the failure to include overtime hours at the overtime rate.” The day after appellant resigned, respondent unconditionally provided her a paycheck representing all wages it conceded were due to her. Subsequently, appellant filed her November 2007 DLSE complaint, contending she was entitled to additional unpaid wages, including for unpaid overtime, and respondent disputed that claim. Thereafter, again like the employee in Watkins, appellant voluntarily agreed to settle her wage claims and any other employment-related claims, in exchange for $6,500.
There was a significant delay between execution of the Settlement Agreements and the January 2009 delivery of the settlement checks to appellant, but appellant provides no reasoned argument that the delay invalidated the Settlement Agreements. (See Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 (Badie).) In particular, she provides no reasoned argument that her December 2008 assertion that the agreements were not binding affected the validity of the agreements. (Ibid.)
Appellant contends there is a triable issue of fact as to whether the dispute over overtime wages was bona fide because there is “persuasive evidence that [respondent’s] agents knew that [appellant] had worked overtime hours without receiving overtime pay as required by law.” Among other things, appellant argues that time records show she worked overtime hours; respondent’s owner set her work schedule and reviewed her time records; and respondent kept two sets of pay records, one showing appellant worked fewer hours than recorded on her time records. However, although appellant’s evidence suggests there may be a triable issue as to her entitlement to overtime pay based on respondent’s knowledge of her overtime hours, the evidence does not create a triable issue as to the existence of a bona fide dispute within the meaning of the Chindarah and Watkins decisions. Nothing in those decisions suggests that the determination of whether there is a bona fide dispute turns on whether a jury could conclude that the employer knew it likely bore some liability to the employee at the time of the execution of the release. To the contrary, the Watkins decision focused entirely on the employee’s awareness that there was a disagreement and the voluntariness of her decision to accept a settlement. (Watkins, supra, 172 Cal.App.4th at p. 1587.) Appellant does not explain how her argument is consistent with the approach in Watkins, and she presents no authority or reasoned argument justifying a different approach. (See Badie, supra, 67 Cal.App.4th at pp. 784-785.)
Appellant’s evidence was contradicted by respondent owner’s deposition testimony that (1) he had not seen time records showing overtime hours before he executed the Settlement Agreements; (2) respondent prohibited employees from working overtime without express permission and he was unaware of appellant ever requesting or receiving such permission; and (3) he believed appellant had not properly recorded her work hours. He also averred in his declaration that he was unaware of appellant complaining that she had not been paid properly for all her hours of work.
Appellant argues Watkins is distinguishable because in that case the employer paid the employee for the time indicated on her timesheets, while in this case there is evidence that respondent did not pay appellant for all the time indicated on her timesheets. Although this is a factual distinction between the disputes at issue in Watkins and in the present case, respondent, like the employer in Watkins, paid appellant all the wages it conceded were due. Notably, there was evidence that the employer in Watkins was attempting to evade the overtime laws, because the employee plaintiff averred she was told to work off the clock.
Appellant also argues any settlement of a wage claim must satisfy the requirements of the doctrine of accord and satisfaction, and those requirements are not satisfied in this case because she never cashed respondent’s checks. However, appellant’s cases do not suggest the doctrine of accord and satisfaction has any application where there is a binding written settlement agreement that is not invalid under section 206.5. In Reid v. Overland Machined Products (1961) 55 Cal.2d 203, 206-207 (Reid), there was no written settlement agreement; instead, the employer argued the plaintiff’s claims were satisfied under the doctrine of accord and satisfaction because the employer sent checks to the plaintiff for the amount the employer believed was due. In other words, the employer was attempting use the doctrine to show there had been an implied settlement of the plaintiff’s claims. (See In re Marriage of Thompson (1996) 41 Cal.App.4th 1049, 1058 [“An accord and satisfaction may be implied. [Citation.]”].) The Reid court rejected the employer’s argument because the employer conceded it owed the plaintiff money, and the Labor Code made the doctrine of accord and satisfaction inapplicable to the payment of “wages concededly due.” (Reid, at p. 207; see also Sullivan v. Del Conte Masonry Co. (1965) 238 Cal.App.2d 630, 633.) The Reid court also pointed out that “[a]n employer and employee may of course compromise a bona fide dispute over wages but such a compromise is binding only if it is made after the wages concededly due have been unconditionally paid.” (Reid, at p. 207.) In this case, respondent did pay the wages it conceded were due and the written Settlement Agreements related to wages that were in dispute. Because the Settlement Agreements are not invalid under section 206.5, the trial court properly concluded they bar plaintiff’s claims. And there was no need to resort to the doctrine of accord and satisfaction to find an implied agreement to settle the claims.
Because appellant has not shown there is a triable issue of fact as to the validity of the Settlement Agreements under section 206.5, the trial court did not err in granting the motion for summary judgment.
Because the Settlement Agreements are not invalid under section 206.5, we need not decide (1) whether appellant effectively rescinded them, because appellant has not shown there was a basis to rescind; (2) whether there was a triable issue of fact as to the merits of appellant’s wrongful termination claim; or (3) whether, as respondent argues, section 206.5 does not apply to a DLSE “supervised” settlement. We also do not address any argument based on the fact that the person who assisted appellant in negotiating the Settlement Agreements was not an attorney, because appellant has provided no reasoned argument why that provides a basis to invalidate the agreements. (See Badie, supra, 67 Cal.App.4th at pp. 784-785.)
Disposition
The judgment is affirmed. Costs on appeal are awarded to respondent.
We concur. NEEDHAM, J., BRUINIERS, J.
Appellant also emphasizes that the Settlement Agreements recite that a portion of the payment was for waiting-time penalties, which she interprets as an admission that respondent failed to pay her wages when due. However, that argument is contrary to language in the General Release stating, “[Appellant] and [respondent] agree that this is a compromise settlement of all such claims and therefore, this Agreement does not constitute any admission of liability on the part of [respondent].”