Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment and postjudgment order of the Superior Court of San Diego County No. GIC 869645 Judith F. Hayes, Judge.
O'ROURKE, J.
Plaintiff and appellant Nora Rocha appeals from a judgment following special verdicts in favor of her former employers, defendants and respondents Lien Vu and the Sterling One Family Limited Partnership (collectively Vu), and from a postjudgment order denying Rocha a new trial. The jury reached verdicts in Vu's favor on Rocha's causes of action for failure to pay overtime and minimum wages as well as wages upon her discharge. The trial court thereafter ruled in favor of Vu on Rocha's unfair competition cause of action in which Rocha sought to enjoin Vu's Labor Code violations, finding Vu had ceased any unlawful employment activities.
On appeal, Rocha contends the trial court made numerous prejudicial errors before and during trial, including by permitting Vu to amend a discovery admission concerning the existence of a voluntary written agreement to credit Rocha's rent toward her minimum wage; allowing Vu to amend her answer to plead an offset defense; admitting or excluding evidence and other matters in limine; denying her motion to strike the testimony of Vu's expert; granting nonsuit on her cause of action for failure to provide accurate itemized wage statements; and allowing certain defense instructions but omitting some of her requested jury instructions. Rocha further contends there were irregularities in the proceedings, including trial court misconduct and bias, the cumulative effect of which deprived her of a fair trial. Finally, Rocha contends the jury awarded her insufficient damages.
Though the court erred by granting a directed verdict and also by treating one of Vu's in limine motions as one for summary adjudication of an entire cause of action, we nevertheless affirm the judgment. Both claims that were the subject of those motions are derivative of proof of valid wage violations. As we shall explain, the jury's defense verdicts are amply supported by all of the evidence, including evidence of the permissible credit for Rocha's apartment towards minimum wage and the hours worked by Rocha's replacements, the admission of which Rocha has not shown was an obvious abuse of discretion. We reject Rocha's other claims of evidentiary and instructional error, misconduct and trial court bias.
FACTUAL AND PROCEDURAL BACKGROUND
From July 24, 2003, to January 18, 2005, Rocha worked for Vu as a resident apartment manager of the Sterling Court apartment complex (Sterling) and supervised other apartment buildings owned by Vu. Rocha had worked as the resident manager for Sterling's prior owner. When Vu hired Rocha she asked how the prior owner had compensated her; Rocha told Vu she had received free rent and at times a bonus. Vu agreed to continue Rocha's free rent, and Rocha handwrote "resident manager free rent" onto her rental agreement. During the time Rocha worked for Vu, Vu never gave Rocha written itemized wage statements (Labor Code, § 226) or required her to document her hours. Vu was unaware of her legal obligation to provide an itemized statement with specific information. In 2003, Vu began using a payroll service in part to comply with workers compensation requirements, and provided Rocha with required tax forms. In July 2003, Rocha began paying Vu $350 a month in discounted rent but Vu allowed her to keep all of the monthly laundry room money, which Vu considered part of Rocha's compensation.
All further statutory references are to the Labor Code unless otherwise specified. References to wage orders are to the 2001 Industrial Welfare Commission (IWC) Wage Orders, found at California Code of Regulations title 8, section 11050, Register 2002, No. 16 (Apr. 19, 2002) pages 1315-1316.6. "The [IWC] 'is the state agency empowered to formulate regulations (known as wage orders) governing employment in the State of California.' " (Morillion v Royal Packing Co. (2000) 22 Cal.4th 575, 581.)
Vu terminated Rocha's employment on January 18, 2005. That month, Rocha collected $380 in laundry room money and paid Vu $350 in rent from those proceeds.
In July 2006, Rocha sued Vu and thereafter filed a first amended complaint containing causes of action for wrongful discharge in violation of public policy, breach of the implied covenant of good faith and fair dealing, failure to pay state and federal overtime wages (§§ 510, 1194; 29 U.S.C. § 206), failure to pay state and federal minimum wage (§ 1197; 29 U.S.C. § 207), failure to pay wages upon discharge (§§ 200, 201, 202), failure to provide accurate itemized wage statements (§ 226), and unfair competition (UCL; Bus. & Prof. Code, § 17200 et seq.). By the latter cause of action, Rocha sought injunctive relief to force Vu to stop her illegal pay practices. Rocha also sought fees, costs and penalties under section 2699 of the Private Attorneys General Act of 2004 (PAGA) (§ 2698 et seq.), alleging that on July 13, 2006, she had sent certified mail written notice to Vu and the Labor and Workforce Development Agency (LWDA) of Vu's Labor Code violations and that the LWDA had declined to investigate the matter. Vu answered the first amended complaint in September 2006.
The matter was set for a jury trial. In February 2008, Vu obtained new counsel who sought to continue the trial date and reopen discovery to take the deposition of Rocha's expert. The court set a new trial date, but on Rocha's counsel's objection it denied Vu's request to reopen discovery. The matter proceeded to trial without expert discovery or depositions.
Before trial, the court made rulings in Vu's favor on several evidentiary motions and requests, including Rocha's motion to exclude so-called "bad act" evidence of alleged overcharging for maintenance and stealing of electricity, Vu's in limine motion to dismiss Rocha's section 2699 cause of action, and Vu's request — originally raised in opposition to Rocha's in limine motion to preclude evidence of any rent credit — to amend Vu's discovery admission that she and Rocha did not have a written agreement to credit rent toward Vu's requirement to pay minimum wage. Vu was thus permitted to amend her response to deny the admission based on the handwritten notation, "resident manager free rent" in Rocha's rental agreement.
Rocha's Request for Admission No. 25 asked: "You did not have a written agreement with Nora Rocha to credit rent towards your requirement to pay minimum wage." Vu and her partnership admitted the request without objection.
Based on the court's evidentiary rulings and seeking to prevent the jury from hearing evidence on Vu's good faith in terminating her and Rocha's purported wrongdoing, Rocha then dismissed without prejudice her causes of action for wrongful termination and breach of the covenant of good faith and fair dealing. The trial court, however, declined to change its prior evidentiary rulings, explaining that most of them "related to compensation received by [Rocha] either in terms of storage spaces... or in the form of electricity that was obtained" which had "value... and... relevance to wage and hour claims." The court ruled, however, that counsel had a right to assert evidentiary objections as testimony was elicited.
At trial, Rocha testified she initially began her employment with Vu as the manager of the 18-unit Sterling Court apartments but her duties increased over the years to supervise other apartment buildings having respectively 10, 16 and 23 units. According to Rocha, at Sterling she cleaned the building common areas and grounds, parking lot and trash areas; answered calls from prospective tenants and checked for messages on an answering machine; kept the units free of drugs and gang members; took reports from tenants concerning problems and wrote maintenance work orders for Vu's approval; coordinated with vendors for repairs at the property; collected the first month of rent and other rent receipts; trained new tenants how to make rent deposits and monitored rent payments; prepared and served three-day notices to quit and collected late fees; and faxed related documents to Vu. Rocha also filled out form lease agreements for new tenants, prepared certain move-in forms, inspected the units and took pictures to send to Vu so she could see their move-in condition. About midway during her employment with Vu, Rocha started working for two different apartment owners, David Bui, who was a friend of Vu's and Dat Vu, Lien Vu's nephew.
During Rocha's employment and at Rocha's recommendation, Rocha's then husband, Pedro Valenzuela, was Vu's primary handyman or maintenance person for her properties. With regard to maintenance, Rocha explained she would write in the details of complaints, ask Valenzuela what she should charge for the job, send the order to Vu and communicate Vu's approval to Valenzuela. Valenzuela performed the maintenance. When the work was complete, Rocha faxed Vu a status report and sent her receipts. Vu paid once a month for labor and materials regardless of the number of work orders, and included in her payments compensation for both Rocha and Valenzuela. Vu instructed Rocha that all of the tenants' questions and maintenance "should have a 24-hour response" and, accordingly, Rocha would pass on the information to Vu as soon as she got the information, even if it was "late...." Rocha estimated handling 140 or 150 work orders in 2004. She was not reimbursed for her travel expenses. Rocha admitted that her resident manager duties did not include the time spent obtaining the maintenance cost and labor estimates and writing those estimates for Vu.
Rocha testified that between July 2003 and July 2004 she worked 12 hours each weekday and 10 hours "or more" on weekends. She testified she worked 12 hours each day during the first week of the month. Rocha stated she worked at least 40 hours a week between July 2004 and November 2004, and at least 15 to 20 hours each week from November 2004 to her termination. Rocha explained that the 12-hour days were broken up by personal matters such as taking her daughters to school, cooking, and other personal breaks. She admitted that during 2003, she attended two semesters of college classes Monday through Thursday from 8:00 a.m. to 11:00 a.m., and sometimes on Saturdays from 9:00 a.m. to 12:00 p.m. In addition, Rocha took about three months of English classes and volunteered at her daughters' head start program. Rocha denied she ever signed any agreement to accept free rent in exchange for minimum wage. Rocha testified she was never told about an employer's requirement to pay minimum wage, and she never received overtime wages. However, she understood she would receive free rent as compensation for her work as Sterling's resident manager. Every month, Vu deposited money in Rocha's bank account with a statement designating the payments for maintenance and management, asking Rocha to call if she had questions.
Lien Vu testified that Sterling was the first apartment complex she had ever owned. According to Vu, when she hired Rocha, she did not believe the resident manager position for an 18-unit complex would be a full time job, and she believed, because Rocha never told her otherwise, that the compensation Vu paid represented at least minimum wage for the hours Rocha was working. Vu did not know exactly how many hours Rocha worked in a given day, explaining it was a "flexible job." She admitted she did not require Rocha to keep track of her hours or tell Rocha about her right to receive minimum wage or overtime pay. Vu admitted she did not give Rocha statements in the form of an itemized wage statement as she was not aware of her legal obligation to provide such an item.
Vu testified that she eventually provided Rocha monthly payroll statements reflecting a $50 payment; Vu explained she had reported more pay on the statement at first, but Rocha asked her to limit the reported pay to $50 and put the remaining payments toward her family's maintenance business. Vu also paid Rocha for training other managers. In August 2004, Vu told Rocha to notify her if she was not making at least $12 per hour based on her hours worked. According to Vu, Rocha never told her she was working 12 hours per day, seven days a week, nor that she was ever making less than $12 per hour. Vu testified she believed she had paid Rocha fairly and that she paid her at least $12 per hour. According to Vu, Rocha's rental agreement reflected their agreement regarding Rocha's compensation for her resident manager work at Sterling.
In keeping with the court's pretrial evidentiary rulings, Vu testified under a limiting instruction that she terminated Rocha after she learned the electricity for Rocha's unit had been wired to the house meter, which Vu paid. Rocha had refused to provide Vu with copies of her electric bills, telling her it was none of her business. Vu also testified — again under a limiting instruction — she had found out at some point that Rocha had "cheated" her by overcharging her on work orders.
After Rocha's termination, Vu hired new resident managers who documented between two and 12 hours of work each month on Sterling resident manager duties.
Lien Vu testified that after she was sued, she made an appointment with the Division of Labor Standards Enforcement (Division or DLSE) to audit and inspect her books and advise her how to properly handle employee payment matters. According to Vu, by the time of trial, she was complying with all of the Division's instructions.
Vu testified that by the time of her deposition she had gone to Division and was waiting for them to audit her. At that time, she was not requiring her employees to check in and out because she was assertedly unaware of such requirements. Vu testified that after the audit, "I fix it according to whatever the Division of Labor tell me to do it [sic]. So that's what I have right now." When asked if by then she had still not given her employees notice of minimum wages and overtime pay, she responded: "After I talked to the Division of Labors. I know now. I do. I comply with everything they teach me."
Both parties presented experts addressing Rocha's pay for her hours worked. Edward Rose, a certified public accountant and attorney, testified on Rocha's behalf. He reviewed Vu's accounting records as well as maintenance requests, work orders, telephone records and some 1099 tax forms to piece together or extrapolate the time Rocha had actually worked for Vu. Based on those records and in the absence of time cards, he assumed Rocha worked full time 40 hours a week plus overtime during the first week of every month. Rose calculated Rocha's unpaid wages under state law based on her full time work at $19,230 after subtracting the maximum apartment credit and deducting what she was paid. He testified Rocha was owed $10,277 based on the overtime she worked one week each month. He also calculated $12,786 in unpaid minimum wages under federal law. He included another $19,230 as liquidated damages. Rose calculated total damages of $73,446 on Rocha's state claim and $42,089 on her federal claim. On cross-examination, Rose admitted he had not read Rocha's deposition in which she had claimed to perform resident manager work 12 hours each day most days of the week. He estimated a 40-hour work week based on the fact Rocha was managing the buildings, the number of work orders (232 in 2001, 173 in 2002 and 186 in 2004), and the effort it would take to coordinate the work. Rose did not consider Rocha's bonuses in his calculations.
Vu asks us to take judicial notice of portions of Rocha's videotaped deposition, which was played for the jury at trial. We may do so only as to the existence of the statements and not for their truth, as the matters involved are not beyond factual dispute. (See Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 375; Garcia v. Sterling (1985) 176 Cal.App.3d 17, 21-22.) Vu's request should have been one to augment the record to include trial evidence. Because Rocha has not opposed the request and the matters were properly before the jury, we shall grant Vu's request for judicial notice. (Evid. Code, §§ 452, subd. (d), 459.)
Vu's expert, economist Patrick Kennedy, calculated Rocha's compensation from July 24, 2003, to January 18, 2005, to be $20,557 under federal law, which amounted to federal minimum wage payments for 3, 992 hours of work. Under his calculations, Rocha was compensated for 51.2 hours per week under the federal minimum wage. Based on his accounting as to Vu's cost of providing Rocha's apartment, he testified Rocha had received $10,438 in free rent. Under state law, he calculated Rocha had been properly compensated for an average of 32.2 hours each week, or 29.3 hours excluding bonuses. He determined Vu was entitled to a $1500 offset for electricity that would have been charged to Rocha's apartment.
Following the close of evidence, the trial court granted Vu's motion for a directed verdict on Rocha's section 226 claim for Vu's failure to provide accurate itemized wage statements, ruling the evidence insufficient to show Rocha had suffered compensable damage.
The jury returned unanimous special verdicts in Vu's favor, finding Vu did not violate state and federal minimum wage or overtime laws and that Rocha was paid all wages owed upon discharge. Thereafter the parties submitted briefing on Rocha's UCL cause of action and the trial court issued a tentative statement of decision denying that claim. After Rocha objected and requested specific findings of fact, the court confirmed its tentative statement of decision. Overruling Rocha's objections and emphasizing that Rocha's UCL claim was based on the wage violations rejected by the jury, it found Rocha had not met her burden of proving that she in fact performed work for which she was improperly compensated and did not produce sufficient evidence to show the amount and extent of work as a matter of just and reasonable inference. Specifically, the court found Rocha's testimony was untruthful, self-serving and inconsistent, and her claim to have worked 12-hour days every day of the week not credible "in light of the undisputed evidence of her other life obligations, which included serving as an off-site manager for several other apartment owners, managing her husband's maintenance business, taking several college courses to earn her teaching permit, volunteering at her daughter's pre-school and raising three daughters." It further found Vu's evidence, including evidence of the hours worked by Rocha's replacements, negated the reasonableness of Rocha's estimated hours worked. Finally, the court found Rocha had not established Vu was currently engaging in any illegal practices that would necessitate issuance of an injunction: "Absent any indication that Defendants are currently in violation of the law, there is no evidence to support the issuance of an injunction."
After the court entered judgment, Rocha moved for a new trial on numerous grounds including irregularities in the court's and jury's proceedings, irregularities caused by Vu, improper orders of the court, inadequate damages, insufficient evidence to justify the verdict, and error in law occurring at the trial. The court denied the motion. It declined to consider anything but the first 15 pages of the 82-page memorandum, which it found violated California Rules of Court page limits.
Rocha appeals from the judgment and the postjudgment order denying her a new trial.
DISCUSSION
I. Wage Order No. 5-89
Rocha does not address federal wage standards in any depth on appeal; her challenges to the trial court's rulings, particularly as to the propriety of allowing Vu to claim a rent credit toward Rocha's minimum wage, rest solely upon state wage law principles. Accordingly, we briefly review IWC Wage Order No. 5-89, which contains rules governing how resident managers of apartment houses and motels must be paid, including the circumstances under which an employer may credit lodging toward a resident manager's pay. The order was discussed and interpreted in Brewer v. Patel (1993) 20 Cal.App.4th 1017, 1020 (Brewer):
"Wage Order No. 5-89... states that compensation must be paid for '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....' This language describes the general principle applicable in all hourly employment contexts and means that an employee must be paid for the time he is at work. [¶] [The wage order] mandates a special rule for apartment managers and motel clerks who are obligated to reside on the work premises. In that situation, only 'that time spent carrying out assigned duties shall be counted as hours worked.' " (Brewer, supra, 20 Cal.App.4th at p. 1020.) "Hours worked" is specifically defined in the wage order, and " 'means 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, and in the case of an employee who is required to reside on the employment premises, that time spent carrying out assigned duties shall be counted as hours worked.' " (Brewer, supra, 20 Cal.App.4th at p. 1020, quoting Cal. Code Regs., tit. 8, § 11050, subd. 2(H).) As to the italicized language, the Brewer court explained, "This language is obviously meant to address the special circumstances of those who are required to reside where they work. An employee such as this is not always working. At times he may be away from the work site shopping, or visiting with friends. At other times, the employee may be on the work premises but attending to personal matters such as cooking, cleaning, or watching television. The language quoted above accepts this reality and states that an employee in this situation must be compensated only for 'that time spent carrying out assigned duties, ' in other words, only for the work the employee actually provides." (Brewer, at p. 1020.)
Thus, in Brewer, the appellate court held a motel clerk who was required to live on the premises, keep the office open from 6:00 a.m. and 10:00 p.m. every day, and remain on the premises 24 hours a day unless he made other arrangements, was entitled to be paid only for the time he actually worked. (Brewer, supra, 20 Cal.App.4th at pp. 1019-1020.) Because the evidence showed it took the clerk on average less than 5 hours a day to perform his assigned duties and he was paid both a salary ($750 and then $1,150 per month) and an additional day of pay if he worked a seventh day in any week, he was not entitled to his sought-after overtime wages. (Id. at pp. 1019, 1021-1022.) Similarly, in Isner v. Falkenberg/Gilliam & Associates (2008) 160 Cal.App.4th 1393, the appellate court, following Brewer, affirmed a summary judgment in favor of a property management company on claims the plaintiff husband and wife resident apartment managers were entitled to unpaid wages for their "on call" time. The plaintiffs' resident employee agreement required, among other things, that they remain on the premises on call and respond to emergency alarm systems on designated evenings from 5:00 p.m. until 8:00 a.m. and designated weekends from Friday evening to Monday morning. (Isner, at p. 1395.) They were compensated for all the time they recorded spent responding to emergencies and calls, but later sought payment for all the hours they were confined to their apartment or office to hear the telephone and alarms. (Id. at pp. 1397-1398.) Noting that the plaintiffs "slept, ate, talked on their personal telephone, used the Internet, played computer games, read magazines or watched television in their apartment when they were not responding to an emergency, " but could not walk around the complex or leave the premises together, the Court of Appeal held as a matter of law thatthe plaintiffs were entitled to compensation only for the time spent carrying out their assigned duties, i.e., responding to emergency calls, for which they were undisputedly paid. (Isner, at pp.1397, 1399.)
Wage Order No. 5 also provides: "... Lodging may not be credited against the minimum wage without a voluntary written agreement between the employer and the employee. When credit for... lodging is used to meet part of the employer's minimum wage obligation, the amounts so credited may not be more than... two-thirds (2/3) of the ordinary [apartment] rental value, and in no event more than... $381.20 per month [effective January 1, 2002]." (Cal. Code Regs., tit. 8, § 11050, subd. 10(C).) Wage Order No. 5 prohibits an employer from charging rent in excess of the above values if the apartment is provided as a condition of employment. (Id., subd. 10(E).)
These provisions of Wage Order No. 5 are to be read alongside Labor Code section 1182.8, which provides: "No employer shall be in violation of any provision of any applicable order of the Industrial Welfare Commission relating to credit or charges for lodging for charging, pursuant to a voluntary written agreement, a resident apartment manager up to two-thirds of the fair market rental value of the apartment supplied to the manager, if no credit for the apartment is used to meet the employer's minimum wage obligation to the manager." (See Brock v. Carrion, Ltd. (E.D.Cal. 2004) 332 F.Supp.2d 1320, 1328 (Brock).) "[S]ection 1182.8 governs where an employer does not credit lodging against minimum wages, and Wage Order No. 5 applies when an employer does seek to impose such a credit." (Ibid.) Here, there was no dispute that Rocha was required to reside at Sterling. Vu's expert Kennedy calculated Rocha's hours after crediting the amounts authorized under Wage Order No. 5. As in Brock, Vu is subject to the crediting provision of Wage Order No. 5, not Labor Code section 1182.8.
With these matters in mind, we assess Rocha's claims on appeal.
II. Amendment of Answer to Include Affirmative Defense of Set-Off
Rocha contends the trial court erred by allowing Vu to make an oral motion to amend her answer during trial to claim an affirmative defense of an offset for electricity that Rocha assertedly did not pay. Rocha maintains Vu's failure to plead offset as an affirmative defense prejudiced her pretrial discovery, the offset defense was precluded as a matter of state and federal law, and there was no evidence to support such a defense.
Though Rocha does not provide any record citation to the trial court's ruling, Vu does not deny that the court granted the amendment. Vu correctly maintains leave to amend should be freely granted, and the trial court's order should be upheld unless it constitutes a manifest abuse of discretion. (Berman v. Bromberg (1997) 56 Cal.App.4th 936, 945 [courts have a "policy of great liberality in permitting amendments to the pleadings at any stage of the proceeding"].) She concedes that while an employer may not deduct wages from an employee's paycheck to offset debts of the employee, this principle does not prevent an employer from offsetting any judgment in an employee's favor in the amount of any debt owed by the employee. Finally, Vu points out that even if the court erred, it did not impact the trial's outcome and thus was not prejudicial since the jury did not decide the offset claim having found Rocha was adequately compensated for her hours worked.
We need not reach whether Rocha has shown a manifest abuse of discretion, because she has not established prejudice. Though Rocha contends the belated amendment prejudiced her pretrial discovery, she does not explain how her discovery requests would have changed, or what information she would have requested from Vu had she known of a set-off defense. More importantly, as Vu points out, the jury had no occasion to apply any offset from damages that it did not award. Because we shall uphold the jury's defense verdict and the court's admission of evidence that Rocha's apartment was wired to Vu's meter (see part IV(A), post), Rocha cannot demonstrate a reasonable probability that exclusion of the offset evidence, amounting to a total offset of $1500 for the cost of electricity that Vu paid for Rocha's apartment, would have changed the trial's outcome.
III. Amendment of Vu's Discovery Admission
Rocha contends the trial court prejudicially erred when — on the eve of trial in opposition to Rocha's in limine motion to exclude evidence of any rent credit — it permitted Vu to amend her discovery admission concerning the existence of a voluntary written agreement to credit rent toward Rocha's minimum wage. She first maintains Vu's application was procedurally deficient, a contention we find unavailing. She further argues Vu did not establish the requisite mistake, inadvertence or excusable neglect; and the amendment was prejudical in that she was forced to change her entire trial strategy without opportunity for discovery. She finally contends the handwritten notation does not satisfy the legal requirements to credit rent towards minimum wage as a matter of law.
Rocha argues Vu's application was without the required 16-day notice under Code of Civil Procedure section 1005. Code of Civil Procedure section 2033.300 permits a party to withdraw or amend an admission "only on leave of court granted after notice to all parties." (Code Civ. Proc., § 2033.300, subd. (a).) When presented with counsel's request to amend Vu's discovery admission on the eve of trial, the court required the parties to file written briefs and sworn declarations and argue the matter the following day specifically to consider both the nature of the mistake or excusable neglect and the prejudice to Rocha. This approach was not in excess of the court's jurisdiction. The statute does not mandate a noticed motion and the court was not required to provide the 16-day notice under Code of Civil Procedure section 1005, subdivision (b), which applies "[u]nless otherwise ordered" and expressly permits a court to "prescribe a shorter time" as the court did here. (Code Civ. Proc., § 1005, subd. (b).)
"The trial court's discretion in ruling on a motion to withdraw or amend an admission is not unlimited, but must be exercised in conformity with the spirit of the law and in a manner that serves the interests of justice. Because the law strongly favors trial and disposition on the merits, any doubts in applying [Code of Civil Procedure] section 2033.300 must be resolved in favor of the party seeking relief. Accordingly, the court's discretion to deny a motion under the statute is limited to circumstances where it is clear that the mistake, inadvertence, or neglect was inexcusable, or where it is clear that the withdrawal or amendment would substantially prejudice the party who obtained the admission in maintaining that party's action or defense on the merits." (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1420-1421.) An error is excusable if a reasonably prudent person under the same or similar circumstances might have made the same error. (Solv-All v. Superior Court (2005) 131 Cal.App.4th 1003, 1007.) Whether a mistake of law constitutes excusable neglect is a fact question. (Anderson v. Sherman (1981) 125 Cal.App.3d 228, 238.) Factors bearing on the determination include " 'the reasonableness of the misconception and the justifiability of lack of determination of the correct law. [Citation.] Although an honest mistake of law is a valid ground for relief where a problem is complex and debatable, ignorance of the law coupled with negligence in ascertaining it will certainly sustain a finding denying relief.' " (Ibid.; see also Hernandez v. Garcetti (1998) 68 Cal.App.4th 675, 683-684.)
A. Rocha's Notation on Her Rental Agreement Constitutes a Voluntary Written Agreement to Accept Rent as Compensation
Rocha's legal argument bears on the question of justifiable mistake and so we begin with that question. Citing section 10(C) of Wage Order No. 5 and relying mainly on Brock, supra, 332 F.Supp.2d 1320, 1328-1331, Rocha argues the handwritten notation on her rental agreement does not satisfy the legal requirements to credit rent towards minimum wage as a matter of law because it does not mention minimum wage or specify any credit against Vu's obligations. It is not, however, a settled proposition that Wage Order No. 5 mandates that a voluntary written agreement contain an express reference to a credit toward Rocha's minimum wage.
Wage Order No. 5 does not define the phrase "voluntary written agreement" as used in section 10(C) or otherwise specify that any particular terms must be included in such an agreement to permit a valid lodging credit. In Brock, the Eastern District of California court held on cross-motions for summary judgment that defendants were not legally entitled under either federal or state laws to claim an offset or credit of any part of the apartment value provided to plaintiffs against the plaintiff's back wages. (Brock, supra, 332 F.Supp.2dat pp. 1324, 1327, 1330-1331.) In part, it pointed out the employment agreement at issue did not comply with a DLSE "Policies and Interpretations Manual, " which required the voluntary written agreement to " 'explicitly reference that such credits are being applied toward the minimum wage obligation of the employer.' " (Id. at p. 1330.) It regarded the DLSE's interpretation as "useful guidance" (id. at p. 1331, fn. 6) even though the California Supreme Court had earlier held (in Tidewater Marine Western, Inc. v. Bradshaw (1996) 14 Cal.4th 557, 572, 576-577) that the DLSE's policies were void and entitled to no deference if intended as statutory interpretation. (Brock, 332 F.Supp.2d at p. 1329.)
Following Tidewater Marine, our state's high court has consistently explained that a court may adopt a DLSE statutory interpretation embodied in a void regulation only if the court independently determines the interpretation is correct. (Gattuso v. Harte-Hanks Shoppers, Inc. (2007) 42 Cal.4th 554, 563; Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1106, fn. 7; Morillion v. Royal Packing Co., supra, 22 Cal.4th at pp. 581-582.) Thus, Brock's persuasive value is questionable because the district court there did not independently undertake its own statutory construction. And, decisions of lower federal courts are not binding upon California reviewing courts. (People v. Gray (2005) 37 Cal.4th 168, 226.)
Concededly, IWC wage orders should be liberally construed with an eye toward promoting employee protections. (Martinez v. Combs (2010) 49 Cal.4th 35, 61.) But Wage Order No 5 — to which we apply standard principles of statutory construction (California State Restaurant Assn. v. Whitlow (1976) 58 Cal.App.3d 340, 344) — requires only a "voluntary written agreement between the employer and the employee" without qualification. Under its plain terms, no express reference to a credit toward minimum wage need be included as long as the parties understand and agree — as they did here by Rocha's written notation — the lodging is to be credited toward the employee's compensation.
None of Rocha's cited authorities persuades us otherwise. Indeed, Division of Labor Standards Enforcement v. Williams (1981) 121 Cal.App.3d 302 suggests the contrary. There, the Court of Appeal on a summary judgment upheld an arbitrator's finding that a labor agreement constituted a voluntary written agreement allowing the practice of crediting meals toward the minimum wage requirement, despite the fact the agreement did not expressly "sanction" the use of a meal credit allowance. (Id. at pp. 307-310.) Porter v. Quillin (1981) 123 Cal.App.3d 869 held a labor organization was authorized on behalf of employees in a bargaining unit to consent to accept meals as part of their minimum wage under a collective bargaining agreement. (Id. at pp. 872, 876.) Porter speaks to the labor organization's authority to collectively bind its members, not the required content of any such voluntary written agreement. California State Restaurant Assn. v. Whitlow, supra, 58 Cal.App.3d 340 held Labor Code section 450 prohibits an employer in the restaurant industry from requiring a minimum wage employee to take meals as part of his compensation and have their value deducted from his minimum wage without the employee's prior written consent; it rejected the notion that the IWC had the implied power to authorize such payments without prior employee consent, which must be specific, voluntary, and prior. (Id. at pp. 343, 346-348.) Like Porter, Whitlow does not address the required content of a voluntary written agreement. These cases are not authority for propositions not considered. (Cicairos v. Summit Logistics, Inc. (2005) 133 Cal.App.4th 949, 957, limited by federal authorities on other grounds as noted in Salazar v. Avis Budget Group, Inc. (2008) 251 F.R.D. 529, 532.)
B. Vu's and Her Counsels' Mistakes and Neglect Are Not Clearly Inexcusable
Though we have rejected Rocha's argument about the legal effect of her rental agreement, the above discussion demonstrates that the question of whether that agreement constituted a "voluntary written agreement" within the meaning of Wage Order No. 5 was not straightforward and simple, but rather debatable and unsettled. This conclusion bears on Vu's showing of mistake and excusable neglect, which the trial court found justified the amendment of her discovery admission under Code of Civil Procedure section 2033.300, subdivision (b).
In making her showing of mistake, Vu stated in a declaration that at the time she reviewed and verified her discovery response, she did not understand the request was referring to the parties' rental agreement. Vu's prior attorney explained in a sworn declaration that a former associate had prepared Vu's initial discovery responses and by the time he was assigned the case he had not reviewed the actual documents and did not further investigate them, having relied on his former associate's efforts. He explained that thereafter, the parties engaged in discovery and settlement negotiations and he ceased efforts believing the case would settle. He stated his law firm was substituted out of the case in January 2008 after a breakdown in the attorney-client relationship. Vu's trial counsel, who entered the case in January 2008 after the close of discovery, explained she had not recalled Vu's prior discovery admission, did not consider its implication in making her arguments, and had erroneously conceded in opposition to Rocha's in limine motion that the apartment value could not be used as an credit against minimum wage. She stated she examined Rocha's rental agreement in the context of Wage Order No. 5 only after oral argument on Rocha's in limine motion, and realized it met the standards for a voluntary written agreement.
The trial court found that Rocha's discovery request was "somewhat ambiguous" and "underlined and underscored" by an ambiguous exchange during Vu's deposition, in which Rocha's counsel asked Vu whether she told Rocha she would give her an apartment in exchange for working for her, which Vu's counsel attempted to clarify by asking whether counsel was referring to "giv[ing] her an apartment rent free...." It observed the issue boiled down to the legal significance of the document, and under the circumstances there was room for an innocent misunderstanding qualifying as a mistake, inadvertence or excusable neglect: "The question is not so much one of evidence. In other words, this is not new evidence that's being produced. [The rental agreement] has been in everybody's possession since the beginning of the case.... [¶] It is the legal significance of that that is in question, and we have an admission of mistake by counsel and by predecessor counsel. So looking at the nature of the error, the nature of the change by a different attorney, the fact that there are voluminous documents in this case, and the issues specifically relating to Work Order No. 5, and the sections involved are relatively complex issues, I find that there is a high likelihood and I find mistake, inadvertence or excusable neglect."
Here, Vu's counsel's declaration is unspecific as to the nature of her misunderstanding concerning Rocha's rental agreement. It is apparent, however, the misunderstanding concerned the legal effect of the notations on Rocha's rental agreement, not that agreement's existence. In view of the policy favoring trial on the merits, even where declarations of counsel are somewhat unspecific, doubts must be resolved in favor of granting relief. (See Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 280 [holding under remedial provisions of Government Code section 946.6], citing Ebersol v. Cowan (1983) 35 Cal.3d 427, 435.)
The court below resolved these questions in Vu's favor, and we infer from its findings that it determined the legal significance of Rocha's rental agreement was a complex and debatable matter (a conclusion with which we agree), and counsel's misconception concerning that question — as evidenced by her concession to Rocha's in limine motion — was an understandable mistake. We cannot say the trial court clearly abused its discretion in granting Vu's requested relief based on its finding of mistake or excusable neglect.
C. Substantial Prejudice
Rocha has not shown the trial court plainly abused its discretion in finding no substantial prejudice resulted from its order. (§ 2033.300, subd. (b).) She maintains she was prejudiced by Vu's withheld evidence (which Rocha does not further specify but presumably was that relied on by Vu's expert, discussed in part IV (C), post), the lack of opportunity for discovery (which Rocha's counsel did not request below), and Vu's assertedly false discovery verifications, resulting in a "trial by ambush." She argues she had to change her entire trial strategy to prove additional work hours for the housing credit. But the prejudicial impact of unspecified documents cannot be measured, and as Vu points out, prejudice does not result from "revelation of an unpleasant truth...." (Jahn v. Brickey (1985) 168 Cal.App.3d 399, 404.)
Having reviewed the record, we do not ascertain any legally cognizable prejudice. The court below carefully considered the question of prejudice and found there was not new evidence or anything causing significant prejudice other than the change in Rocha's economist's work. It acknowledged the need for Rocha's expert to recalculate damages and ordered the cost of the modifications or additional work to be accepted and paid for by the defense. As we explain in connection with the court's admission of expert Kennedy's testimony, the court did not permit Vu to introduce evidence that had not been timely provided to Rocha before trial. The court permitted Rocha's counsel to argue to the jury that they had sought Vu's admission and she had changed it. Under the circumstances, the court reasonably acted to cure any prejudice stemming from its order. There is consequently no basis for reversal.
IV. Other Evidentiary Rulings
Rocha challenges several other pretrial and mid-trial evidentiary rulings made by the trial court. We review the court's evidentiary rulings on the admissibility of evidence for abuse of discretion. (City of Ripon v. Sweetin (2002) 100 Cal.App.4th 887, 900.) Under this standard, the court's " ' "discretion is only abused where there is a clear showing [it] exceeded the bounds of reason, all of the circumstances being considered." ' " (Saxena v. Goffney (2008) 159 Cal.App.4th 316, 332.) The same standard applies whether the trial court decides the motion on the basis of relevance or whether the evidence's probative value is substantially outweighed by its prejudicial effect. It is Rocha's burden to affirmatively show error. (See, e.g., Cristler v. Express Messenger Systems, Inc. (2009) 171 Cal.App.4th 72, 89.)
A. Rocha's In Limine Motion to Exclude Evidence of Bad Acts
Rocha contends the court should have excluded the evidence of alleged overbilling or overquoting of handyman services and her alleged theft of electricity. She maintains Vu did not present any evidence of wrongdoing in the first place; the conduct was that of Rocha's then husband, Valenzuela, and Vu's witnesses on the matter did not actually watch him perform the work or establish that Rocha knew the work orders were inflated. Rocha argues the evidence was irrelevant and improper "character" evidence that had no tendency to prove or disprove any material fact in the case, and she suggests its admission alone requires reversal.
Rocha's in limine motion was made solely on relevance grounds under Evidence Code sections 350 and 352. The court initially ruled these matters relevant and admissible on the reasons Vu terminated Rocha, rejecting Rocha's in limine arguments. After Rocha dismissed her wrongful termination claim, her counsel renewed his request to exclude the evidence, arguing it was improper character evidence under Evidence Code section 1101. The court ruled counsel had waived reconsideration of his motion on the new asserted grounds, but allowed counsel to make evidentiary objections during the course of the testimony. It further ruled Rocha's electricity usage was relevant to her wage and hour claims as value received.
Vu's ensuing testimony — recounting what others had told her about the amount of time spent on certain maintenance projects and how Rocha's apartment was wired for electricity — was elicited over Rocha's counsel's hearsay objections with limiting instructions that the evidence was not for the truth of the matter asserted but to show Vu's "state of mind and what she did in response to it." We are unable to discern from these rulings a manifest abuse of discretion on the trial court's part. Even if it was inadmissible to prove conduct on a specified occasion (Evid. Code, § 1101, subd. (a)), evidence of a person's civil wrong or other act is admissible when relevant to prove some fact such as motive or intent. (Evid. Code, § 1101, subd. (b); People v. Eagles (1982) 133 Cal.App.3d 330, 340.)
In any event, as stated, Rocha's counsel specifically asked for — and the trial court gave — the limiting instructions so that the jury would not consider the evidence on anything but Vu's conduct. (Evid. Code, § 355.) Under settled appellate standards, we are required to presume the jury followed the trial court's instructions absent evidence to the contrary (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 803-804; Craddock v. Kmart Corp. (2001) 89 Cal.App.4th 1300, 1308), and there is nothing in the record indicating it did not do so. Further, because Rocha did not object either in limine or at the time of Vu's testimony on grounds the matter was inadmissible character evidence under Evidence Code sections 786 or 787, she has forfeited that aspect of her appellate argument.
B. Admission of Other Employees' Time Records into Evidence
Rocha contends the court erred by admitting the time records of Vu's other employees into evidence on Vu's counsel's "offer of proof" that the employees would testify to the records and explain how their hours were comparable to Rocha's. She argues the records were inadmissible hearsay and did not meet any of the requirements for the business record exception to the hearsay rule. According to Rocha, the probative value of those records was substantially outweighed by their prejudicial effect.
Before trial, the court initially ruled that the time records of Vu's other resident managers hired after Rocha's termination were relevant to Vu's credibility; it denied Rocha's motion in limine to exclude that evidence, observing "[Rocha] is claiming a certain number of hours and [Vu is] saying, no, it doesn't take that long." It was not until Vu's counsel attempted to admit the records at trial that counsel objected on hearsay grounds. Vu then identified the documents as time cards of her resident managers including the person who replaced Rocha, and she testified she received the documents every two weeks in the regular course of business, maintained them in the ordinary course of her business, and relied on them in 2006 to pay her employees. The court overruled Rocha's hearsay objection.
In admitting the records, the trial court ruled Vu had laid a proper business record foundation, which required Vu to show the time records were "made in the regular course of a business, " they were "made at or near the time of the act, condition, or event, " and "[t]he sources of information and method and time of preparation were such as to indicate [their] trustworthiness." (Evid. Code, § 1271, subd. (d); Eddins v. Redstone (2005) 134 Cal.App.4th 290, 327, fn. 36.) If these foundational requisites are met, and "[t]he custodian or other qualified witness testifies to its identity and the mode of its preparation, " a record will fall within an exception to the hearsay rule. (Evid. Code, § 1271, subd. (c).) The court has wide discretion in determining whether a sufficient business record foundation is laid to qualify evidence as a business record and its determination on admissibility will not be disturbed on appeal absent a clear showing of abuse. (People v. Beeler (1995) 9 Cal.4th 953, 978-979; County of Sonoma v. Grant W. (1986) 187 Cal.App.3d 1439, 1448.)
Admission of these records was not a manifest abuse of discretion. There is no indication the time cards were "litigation-inspired" and not prepared in the regular course of business as Rocha maintains. Vu's deposition testimony on which Rocha relies indicates Vu began keeping contemporaneous records of her employee's time "since two years ago" which would have been in 2005, about the time Rocha was terminated. Irene and Laura Behena, Vu's replacement managers, testified that they carried notebooks to document their hours and wrote them down at the end of the day and later transferred them to their time cards; they testified the time cards accurately reflected the hours they worked. As the owner of Sterling who maintained the pay records in the regular course of her business, Vu was qualified to testify as to their identity and manner of preparation. It was not necessary that the employees making the entry testified, as " '[i]t is the object of the business records statutes to eliminate the necessity of calling each witness, and to substitute the record of the transaction or event.' " (Jazayeri v. Mao (2009) 174 Cal.App.4th 301, 322.) The fact Vu testified regarding the records does not render them untrustworthy, nor are they inherently improbable for showing that on some days, a manager worked only for two minutes. Irene Behena testified there were days when she did no resident manager work at Sterling. In any event, the latter criticism goes to the weight of the evidence, not its admissibility.
Vu testified she received these records every two weeks and paid her employees based on them, and from this and the Behenas' testimony the trial court could reasonably infer the required trustworthiness. " ' "In the case of the conduct of the business and affairs of an establishment, it is presumed that the regular course of business of such establishment is followed... and that the books and records of an establishment truly reflect the facts set forth in such books...." ' " (County of Sonoma v. Grant W., supra, 187 Cal.App.3d at p. 1451.) If the record reasonably supports the trial court's decision that the foundation laid was sufficient to support the introduction of evidence under the business records exception, this court is bound by its conclusion. (In re Troy D. (1989) 215 Cal.App.3d 889, 902.)
C. Admission of Vu's Expert Testimony
Rocha contends the court erroneously declined to strike the testimony of Vu's expert, Patrick Kennedy, which she claims allowed Vu to present documents withheld from her during discovery as well as Kennedy's "false" opinions concerning the operating costs of the apartment provided to Rocha by Vu. She argues Kennedy's opinions were based on false or nonexistent data and were unsupported or contradicted by the evidence at trial. Rocha maintains admission of the improper opinion impacted the verdict because it then required her to prove she worked a higher number of hours per week to prevail on her minimum wage claim. Vu argues Rocha waived the matter on appeal as counsel never received a ruling on his motion to strike Kennedy's testimony and did not further pursue the matter.
Kennedy's calculations were intended to comply with 29 Code of Federal Regulations part 531.3. The FLSA permits employers to include in wages paid the reasonable cost of "customarily furnished" lodging. (See 29 U.S.C. § 203(m).) 29 Code of Federal Regulations part 531.3 contains a formula providing that the reasonable cost to the employer of furnishing his employees with lodging or other facilities is no more than the cost of operation and maintenance, including adequate depreciation, plus a reasonable allowance (not more than 5 1/2 percent) for interest on the depreciated amount of capital investment by the employer. (29 C.F.R. § 531.3(c).) In order to substantiate "actual cost, " an employer must "maintain and preserve" records of "itemized accounts showing the nature and amount of any expenditures entering into the computation of the reasonable cost." (29 C.F.R. § 516.27(a)(1).) Reasonable cost "does not include a profit to the employer or to any affiliated person." (29 C.F.R. § 531.3(b).)
Vu's assertion of waiver has merit. The topic of the federal rent offset was raised before Kennedy testified; Rocha's counsel sought to exclude depreciation schedules on grounds they were not provided in discovery in response to a form interrogatory asking Vu to identify documents substantiating material denials of the complaint's allegations. The court ruled Rocha's form interrogatory was overly broad and could cover all documents relating to Sterling and because counsel had not requested the document during discovery and it was not marked as an exhibit, Kennedy could rely on it. When Vu's counsel sought to admit Kennedy's newly produced reports into evidence, the trial court sustained Rocha's counsel's objection and excluded them from evidence, explaining "[t]he problem is not so much a discovery problem" but was one of "exhibit exchange." Without objection, the court allowed defense counsel to use Kennedy's summaries as a demonstrative exhibit. Kennedy's testimony on the subject of the reasonable cost was thereafter elicited without objection, and counsel extensively cross-examined him on his conclusions, albeit with the court admonishing counsel that there was no time for him to "conduct discovery" during his examination.
Following the close of evidence in the case, well after Kennedy left the stand, Rocha's counsel sought to strike the entirety of his testimony on grounds his opinions were not supported by evidence from Vu and his methodology of computing the reasonable cost of Rocha's lodging under federal law "did not comply with the law." The trial court disagreed with counsel on the first point, pointing out the jury received without objection Kennedy's testimony concerning his review and use of Vu's income records. As for counsel's motion, the court did not issue a ruling, but told counsel it would "give [him] time to think about this overnight."
The following morning, Rocha's counsel did not renew his motion to strike; he instead requested that expert Rose be returned to the stand to address Kennedy's calculations of Vu's reasonable cost to furnish lodging, which had been based on new information produced by Vu the prior day. The court permitted counsel to return Rose not for additional rebuttal, but to address the new cost information. Before Rose was returned to the stand, the trial court explained it was attempting to reach a fair result in view of Kennedy's use of newly created information, but it expressly declined to find Vu's counsel had engaged in a discovery violation: "What I'm doing is finding it was not a discovery violation because, frankly, [plaintiff's] discovery request was not clear in terms of what they wanted you to produce."
Under the circumstances, we agree Rocha forfeited her challenges to the deficiencies of Kennedy's testimony on the federal reasonable cost formula. By failing to object at the time Kennedy provided his assertedly flawed opinions, Rocha waived objections to its reception. "The rule is settled that where a [party] deliberately permits evidence to be given without objection in the first instance and then moves to strike it out on grounds readily available at the time the evidence was offered, [s]he waives such objections to the reception of the evidence." (People v. Caritativo (1956) 46 Cal.2d 68, 73; see also Evid. Code, § 353; King v. Haney (1873) 46 Cal. 560, 563 [by cross-examining a witness at trial generally, defendants waived the right to move to strike answers given on direct examination].)
Rocha asserts in reply that she preserved her objections by moving in limine to exclude the apartment credit — a motion we have concluded the trial court properly denied and was not specific as to Kennedy's testimony. She also maintains her objections were preserved under Code of Civil Procedure section 647, under which an "order... denying... a motion to strike out evidence or testimony" is deemed excepted to. But here, counsel did not obtain a ruling on his motion, instead seeking relief in the form of presenting further expert testimony from Rose. We cannot agree that the court's action of deferring any ruling on Rocha's motion amounted to an exception under Code of Civil Procedure section 647, which is silent on that issue.
Were we to consider Rocha's contention, however, we would reject it. Most of Rocha's complaints — as to withheld or misleading data, the improper inclusion of gifts as compensation, and laundry receipts as illegal wage substitutes — are provided without supporting authority. Rocha's complaints about the flaws in Kennedy's calculations or testimony go to the weight of his opinions, not its admissibility. The weight and persuasiveness of the evidence is a matter exclusively for the trier of fact, and as long as Kennedy's opinion was not insufficient as a matter of law, we must uphold the jury's decision to accept his opinions. (See, e.g., Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 631.) In another contention, supported by Maryland federal district court authority (Marroquin v. Canales (M.D. 2007) 505 F.Supp.2d 283), Rocha repeats assertions that Vu failed to produce evidence of the reasonable cost of lodging in discovery or admit into evidence any of the housing costs to be credited under Federal law. But the trial court expressly excluded this evidence at Rocha's request. In short, Rocha has not shown the trial court patently abused its discretion in admitting Kennedy's opinions and conclusions into evidence.
D. Motion in Limine to Exclude Evidence and Argument as to Independent Contractor Status
Rocha contends the court erred by denying her motion to exclude evidence or argument that she was both defendant's employee and an independent contractor for work performed for her former husband. She maintains the ruling was erroneous because at trial, Vu was permitted to claim Rocha was an employee for managerial work and an independent contractor for work on her husband's "maintenance business, " even though Vu confusingly treated Rocha and her husband as both employees and independent contractors, and exacerbated the confusion by failing to delineate Rocha's managerial duties and mixing Rocha's payments with those to her husband. Rocha also argues Vu failed to overcome the section 2750.5 presumption of employment as to both her work and that of her husband.
The record does not support Rocha's contention. In opposition to Rocha's motion, Vu's counsel explained she was not arguing Rocha was an independent contractor, but that Rocha was not working for Vu when she was performing work for her then husband. In the face of these arguments, the trial court did not deny Rocha's evidentiary motion but rather took it under submission so as to address the matter on a question-by-question basis. Accordingly, at trial, Vu's counsel questioned Rocha about how she handled the maintenance estimate procedure, and whether she agreed that obtaining cost and labor breakdowns from her husband was outside the scope of her resident manager work. The jury was then correctly instructed on the definition of "hours worked" in Wage Order No. 5. Counsel argued the matter; Rocha's counsel argued there was no separate maintenance business and Vu's counsel argued Rocha "spent a lot of time running a family maintenance business." The trial court allowed the jury to decide the factual issue of whether or not Rocha's handling of maintenance orders was part of her assigned resident manager duties and should have been included in the calculation of Rocha's hours worked for Vu. Rocha has not demonstrated this ruling was a prejudicial abuse of discretion.
Because Rocha's status as an independent contractor was not an issue at trial, we reject Rocha's contention that the court erred by rejecting her proposed jury instruction as to the presumption of employment versus independent contractor status.
E. Rocha's Private Attorneys General Act Cause of Action
Rocha contends the trial court erred by granting Vu's untimely motion in limine to dismiss her entire PAGA cause of action under section 2699. She argues Vu's motion was in substance a motion for summary adjudication on an unpleaded affirmative defense and, contrary to the trial court's ruling, she had standing, complied with all statutory pre-filing requirements for such a cause of action (§ 2699.3 ), and properly identified the Labor Code violations to the LWDA. She asks us to grant her a new trial on that cause of action.
An aggrieved employee's ability to file a civil action to recover civil penalties under section 2699 as to alleged violations of Labor Code provisions identified in section 2699.5 is conditioned on satisfaction of the administrative procedures outlined in section 2699.3, subdivision (a). "That statute requires the employee to give written notice of the alleged Labor Code violation to both the employer and the [LWDA], and the notice must describe facts and theories supporting the violation. (Id., § 2699.3, subd. (a).) If the agency notifies the employee and the employer that it does not intend to investigate (as occurred here), or if the agency fails to respond within 33 days, the employee may then bring a civil action against the employer. (Id., § 2699.3, subd. (a)(2)(A).) If the agency decides to investigate, it then has 120 days to do so. If the agency decides not to issue a citation, or does not issue a citation within 158 days after the postmark date of the employee's notice, the employee may commence a civil action. (Id., § 2699.3, subd. (a)(2)(B).)" (Arias v. Superior Court (2009) 46 Cal.4th 969, 981.)
Vu was not required to plead exhaustion as an affirmative defense. Rocha was required to affirmatively plead compliance with PAGA's pre-filing requirements as an essential element of her cause of action. (Caliber Bodyworks, Inc. v. Superior Court (2005) 134 Cal.App.4th 365, 381-382.) Vu's general denial sufficed to controvert those material allegations. (See Advantec Group, Inc. v. Edwin's Plumbing Co., Inc. (2007) 153 Cal.App.4th 621, 627 [effect of a general denial is to put in issue the material allegations of the complaint].)
However, setting aside whether Vu's motion was timely filed, we agree the court improperly treated it as a motion for summary adjudication on the entire cause of action. (See Blanks v. Seyfarth Shaw L.L.P. (2009) 171 Cal.App.4th 336, 375-376; Amtower v. Photon Dynamics, Inc. (2008) 158 Cal.App.4th 1582, 1593; see also R B Auto Center, Inc., v. Farmer Group, Inc. (2006) 140 Cal.App.4th 327, 333 [trial court should not engage in "the wholesale disposition of a case through rulings on motions in limine"], 371-372 [concurring opn. of Rylaarsdam, J.].) Vu's evidentiary motion was limited: relying on PAGA's pre-filing requirements, she asserted first that Rocha had not identified two specific Labor Code violations — violations of sections 204 and 1197.1 — in her letter to the Agency and second, that Rocha had not given notice that Vu had committed any Labor Code violation against any other employee other than herself. She requested an order that Rocha not be permitted to introduce evidence or testimony of those violations not listed in her notice letter as "irrelevant and prejudicial." The court had no basis to dispose of the entire cause of action based on these arguments.
Vu argues her evidentiary motion was properly considered by the trial court under California Rules of Court, rule 3.1112(f) and Code of Civil Procedure section 128, and the court had inherent equitable power to entertain — and treat as a motion for judgment on the pleadings — a motion in limine arguing Rocha could not establish a cause of action even if her allegations were proved. Subdivision (f) of the California Rules of Court, rule 3.1112, relating to motions and other pleadings, provides: "Notwithstanding (a) [specifying that a notice of hearing, motion and memorandum of points and authorities must be filed in connection with a motion], a motion in limine filed before or during trial need not be accompanied by a notice of hearing. The timing and place of the filing and service of the motion are at the discretion of the trial judge." (Cal. Rules of Court, rule. 3.1112(f).) We read this rule as permitting the trial court to set dates for the motions but nevertheless retain authority to consider motions filed beyond those dates. Here, the trial court ordered that in limine motions be filed on or before May 19, 2008. Vu's motion was filed in or about August 2008.
We nevertheless must decide whether the court's error prejudiced Rocha, that is, whether Rocha could have prevailed on her PAGA claim had she been allowed to proceed to trial on it. Under section 2699, any provision of the Labor Code that permits the LWDA to seek to recover a civil penalty against the employer "may, as an alternative, be recovered through a civil action brought by an aggrieved employee on behalf of himself or herself and other current or former employees[.]" (§ 2699, subd. (a); see Dunlap v. Superior Court (2006) 142 Cal.App.4th 330, 335-337 [summarizing PAGA's provisions and legislative intent].) The claim is entirely derivative of Rocha's other claims for Labor Code violations. (See Dimon v. County of Los Angeles (2008) 166 Cal.App.4th 1276, 1280, fn. 5; Elliot v. Spherion Pacific Work, LLC (C.D.Cal. 2008) 572 F.Supp.2d 1169, 1181-1182; Hubins v. Operating Engineers Local Union No. 3 (N.D.Cal. 2004) 2004 WL 2203555; Lam v. Ngo (2001) 91 Cal.App.4th 832, 841, fn. 5 [unpublished federal decisions may be considered as persuasive authority].) Because we uphold the jury's verdicts disposing of those claims in Vu's favor, Rocha's section 2699 cause of action does not survive.
V. Directed Verdict on Rocha's Wage Statement Claim
Section 226 requires employers to furnish each employee an accurate itemized written wage statement semimonthly or at the time of each wage payment. (§ 226, subd. (a); see Morgan v. United Retail Inc. (2010) 186 Cal.App.4th 1136, 1143 [summarizing statute].) The statute permits an employee "suffering injury" as a result of a knowing and intentional failure by an employer to comply with its itemized statement requirements to recover the greater of "all actual damages" or specified penalties, as well as costs and reasonable attorney's fees. (§ 226, subd. (e).) Section 226 also permits an employee to bring an action for injunctive relief to ensure compliance, and under that section "is entitled to an award of costs and reasonable attorney's fees." (§ 226, subd. (g).)
Following the trial court's announcement of the close of evidence, Vu made an oral motion for directed verdict on Rocha's section 226 cause of action. Defense counsel argued Rocha had not proven Vu's violation was knowing or willful or that Rocha had suffered any actual damage. Rocha's counsel responded that Rocha's efforts to reconstruct her time, as well as the expert fees she had incurred, constituted actual damage. The court granted the motion, ruling Rocha could not recover such damages as a matter of law, and even if she were so entitled, there was insufficient evidence for any reasonable jury to find she established her time in putting her hours together as damages.
Characterizing Vu's motion as one for nonsuit, Rocha contends the court erred by granting it. She maintains the court too narrowly interpreted the term "actual damages" within the statute as excluding Rocha's time reconstructing her hours and wages as well as her expert's time spent for those purposes. Vu, relying on Michelson v. Hamada (1994) 29 Cal.App.4th 1566, a case not involving wage matters or section 226, responds that litigation costs are not actual damages and nothing in the statute requires the court to expand the notion of actual damages to encompass such costs.
A directed verdict is properly entered when " 'the trial court determines that, as a matter of law, the evidence presented by plaintiff is insufficient to permit a jury to find in his favor.' " (Quinn v. City of L.A. (2000) 84 Cal.App.4th 472, 479-480.) " ' "In determining whether plaintiff's evidence is sufficient, the court may not weigh the evidence or consider the credibility of witnesses. Instead, the evidence most favorable to plaintiff must be accepted as true and conflicting evidence must be disregarded." ' " (Id. at p. 480.) "A directed verdict is... subjected to de novo appellate review" and " ' "is in the nature of a demurrer to the evidence, and is governed by practically the same rules, and concedes as true the evidence on behalf of the adverse party, with all fair and reasonable inferences to be deduced therefrom." ' " (Brassinga v. City of Mt. View (1998) 66 Cal.App.4th 195, 210.)
Accepting Rocha's evidence and drawing all inferences in its favor compels us to conclude the trial court erred by granting a directed verdict on her section 226 claim. There was no dispute Vu did not provide Rocha with accurate itemized wage statements within the meaning of section 226, which requires an employer to list "the precise, actual number of hours worked." (Cicairos v. Summit Logistics, Inc., supra, 133 Cal.App.4th at p. 955.) At trial, Rocha testified that she never had a regular payday and that, in order to come to court, she was forced to reconstruct the amount of time she spent in the four years preceding the filing of her lawsuit, going through maintenance work orders, letters, and other paperwork. She testified she spent about a month doing so working with her lawyers. Rocha's expert testified that given the absence of pay records including W-2 and 1099 forms, he was required to spend time extrapolating and reviewing supporting data pertaining to Rocha's work orders and duties to calculate the number of hours she worked for Vu.
We cannot say Rocha's evidence was insufficient as a matter of law, in the context of a section 226 claim, to demonstrate actual injury. The requisite injury in such a case is governed by a "fairly minimal standard" and a "very modest showing will suffice." (Jaimez v. DAIOHS USA, Inc. (2010) 181 Cal.App.4th 1286, 1306.) The fact an employee has filed a lawsuit, and "the difficulty and expense... encountered in attempting to reconstruct time and pay records, is... evidence of the injury suffered as a result of [a defendant's noncomplying] wage statements." (Wang v. Chinese Daily News, Inc. (C.D.Cal. 2006) 435 F.Supp.2d 1042, 1050; see also Elliot v. Spherion Pacific Work, LLC, supra, 572 F.Supp.2d at p. 1181 [range of injuries "included the possibility of not being paid overtime, employee confusion over whether they received all wages owed them, difficulty and expense involved in reconstructing pay records, and forcing employees to make mathematical computations to analyze whether the wages paid in fact compensated them for all hours worked"]; Ortega v. J.B. Hunt Transport, Inc. (C.D.Cal. 2009) 258 F.R.D. 361, 374 [lead plaintiff's statement that he " 'could usually do the math in [his] head and figure out approximately what [he] was going to get gross' is consistent with the type of injury that has been found sufficient to support a claim for violation of section 226"]; Jaimez, at p. 1306.) "The purpose of the [section 226 wage statement] requirement is that employees need not engage in the discovery and mathematical computations to analyze the very information that California law requires." (Wang, supra, 435 F.Supp.2d at p. 1051.) " '[W]here the employer has failed to keep records required by statute, the consequences for such failure should fall on the employer, not the employee. In such a situation, imprecise evidence by the employee can provide a sufficient basis for damages.' " (Ciciaros v. Summit Logistics, Inc., supra, 133 Cal.App.4th at p. 961.)
Importantly, the jury had not yet determined Vu's liability on Rocha's other claims of Labor Code violations, of which the section 226 claim is derivative. (Porch v. Masterfoods, USA, Inc. (C.D.Cal. 2008) 685 F.Supp.2d 1058, 1075; see, e.g., Gomez v. Lincare, Inc. (2009) 173 Cal.App.4th 508, 524 [parties stipulated section 226 claim was derivative of valid wage claims].) Absent the jury's decisions on those claimed violations, the court could not assess whether or not Rocha suffered viable injury from the absence of accurate itemized wage statements.
But even if Rocha's evidence did not amount to actual injury as a matter of law, the trial court erred by granting a directed verdict on that claim for a different reason. A finding of a violation of section 226, subdivision (a) would entitle Rocha to injunctive relief and the recovery of costs and attorney fees regardless of actual injury or Vu's intent. (§ 226, subd. (g); Harris v. Vector Marketing Corp. (N.D.Cal. 2009) 656 F.Supp.2d 1128, 1145-1146; Wang v. Chinese Daily News, Inc., supra, 435 F.Supp.2d at p. 1050, fn. 6.) Rocha sought such injunctive relief in her complaint, and at the time Vu moved for a directed verdict, the trial court had not determined the merits of that cause of action. Thus, it then had no basis to reject Rocha's claim for injunctive relief. Because there was evidentiary support that Rocha suffered actual injury, and Rocha could validly seek injunctive relief even absent actual injury under section 226, the trial court erred by directing a verdict on the claim.
We turn to the question of whether Rocha suffered a miscarriage of justice as a result of the error. (Cal. Const., art. VI, § 13.) Ultimately, the jury rejected Rocha's remaining claims, and its verdicts, as we shall explain, are supported by the evidence. Because Rocha's section 226 cause of action derived from Rocha's failed overtime and wage claims, the claim is not sustainable. Further, the trial court rejected Rocha's claim for injunctive relief on its factual finding that Vu was in compliance with all Division pay requirements at the time of trial, thus defeating the need to enjoin future Labor Code violations. On appeal, Rocha does not present a sufficiency of the evidence argument attacking that finding. Because we will uphold the trial court's rejection of Rocha's claim for injunctive relief (part VI (A), post), we cannot say Rocha suffered prejudice as a result of its directed verdict on her section 226 claim.
VI. Sufficiency of the Evidence of Damages
Rocha contends the jury awarded inadequate damages on her claims for failure to pay wages upon discharge and unpaid wages. Rocha adds, without analysis or meaningful discussion, that the trial court declined to award any restitution or injunctive relief on her equitable claim for unfair competition.
A. Unfair Competition Claim
Rocha forfeits her latter contention for the lack of legal argument and analysis. "An appellate court is not required to examine undeveloped claims, nor to make arguments for parties" (Paterno v. State of California (1999) 74 Cal.App.4th 68, 106); its role is to evaluate " 'legal argument with citation of authorities on the points made.' " (People v. Stanley (1995) 10 Cal.4th 764, 793.) On this ground alone, we need not address Rocha's arguments. (Craddock v. Kmart Corp., supra, 89 Cal.App.4th at p. 1307.) However, as we have stated, in denying Rocha relief on her request to enjoin further Labor Code violations, the trial court accepted Vu's testimony that she had consulted with Division and had, by the time of trial, complied with its instructions. As a result, it found Vu was in full compliance with the Labor Code and there was no basis to award Rocha injunctive relief in the absence of evidence that violations were continuing. Injunctive relief may be denied where the defendant has voluntarily discontinued the wrongful conduct; " 'to authorize the issuance of an injunction, it must appear with reasonable certainty that the wrongful acts will be continued or repeated.' " (Scripps Health v. Marin (1999) 72 Cal.App.4th 324, 332, 333; accord, Cisneros v. U.D. Registry, Inc. (1995) 39 Cal.App.4th 548, 574.) Rocha does not substantively challenge the trial court's factual finding on appeal other than to mention that she objected to the trial court's tentative statement of decision and requested specific findings of fact. She does not engage in any discussion of the legal consequences of her objection. Her bare assertions are insufficient to preserve appellate review. (Paterno v. State of California, supra, 74 Cal.App.4th at p. 106.)
Those objections would not change our conclusion even if we were to consider them. Rocha's counsel specifically objected to the trial court's tentative statement of decision on numerous points, including Vu's compliance with Labor Code requirements, and requested it make findings about "the evidence by [Vu] of changes to employment practices that the Court considered in finding no ongoing Labor Code violations." But counsel's objections did not demonstrate the statement of decision was ambiguous or omitted material factual findings; a statement of decision is required only to fairly disclose the court's determination as to the ultimate facts and material issues in the case. (Ermoian v. Desert Hospital (2007) 152 Cal.App.4th 475, 500.) The court's statement of decision here stated ultimate facts.
B. Sufficiency of the Evidence of Causes of Action for Failure to Pay Wages Upon Discharge and Unpaid Wages
Here, the jury reached a unanimous defense verdict, finding Rocha was entitled to no damages. By their special verdicts, the jury found Rocha failed to prove she had performed work for which she was not compensated under state and federal minimum wage and overtime wage laws, and that Vu paid Rocha the full amount of wages earned by Rocha upon her discharge. Rocha does not address any standards under the federal laws, and we do not disturb the jury's verdicts on those claims.
In assessing Rocha's challenge to the evidence supporting the jury's zero damage award "we are bound by the familiar and highly deferential substantial evidence standard of review. This standard calls for review of the entire record to determine whether there is any substantial evidence, contradicted or not contradicted, to support the findings below. We view the evidence in the light most favorable to the prevailing party, drawing all reasonable inferences and resolving all conflicts in its favor." (People ex rel. Brown v. Tri-Union Seafoods LLC (2009) 171 Cal.App.4th 1549, 1567.) The rule applies equally to the factual findings of lay and expert witnesses in both jury and non-jury trials. (Ibid; Ermoian v. Desert Hosp., supra, 152 Cal.App.4th at pp. 500-501.) A substantial evidence review is not properly a challenge to the weight and credibility of the testimony presented, and this court may not reweigh evidence or reappraise the credibility of witnesses. (Eidsmore v. RBB, Inc. (1994) 25 Cal.App.4th 189, 195; see OCM Principal Opportunities Fund, L.P. v. CIBC World Markets Corp. (2007) 157 Cal.App.4th 835, 866.) Further, the jury is not required to reject all of a witness' testimony, even if parts of it were inconsistent or conflicting: "It is well settled that the trier of fact may accept part of the testimony of a witness and reject another part even though the latter contradicts the part accepted." (Stevens v. Parke, Davis & Co. (1973) 9 Cal.3d 51, 67.)
In making its final determination as to damages, the jury has the power to give whatever weight it chooses to the evidence. (San Diego Metropolitan Transit Development Bd. v. Cushman (1997) 53 Cal.App.4th 918, 931.) Ultimately, the trier of fact " 'may accept the evidence of any one expert or choose a figure between them based on all of the evidence.' [Citation.] There is insufficient evidence to support a [damage] verdict 'only when "no reasonable interpretation of the record" supports the figure....' " (Ibid.)
Rocha's burden was to prove "she 'ha[d] in fact performed work' that was improperly compensated" along with enough evidence to allow an inference as to the amount of work. (Amaral v. Cintas Corp, No. 2 (2008) 163 Cal.App.4th 1157, 1190; see Hernandez v. Mendoza (1988) 199 Cal.App.3d 721, 727.) Thus, Rocha was required to show that she worked more hours each month than she was paid, or she worked overtime hours for which she was not paid. If Rocha had met that proof, the burden would have shifted to Vu to prove the precise amount of work performed, or to negate the inference drawn from the employee's evidence. (Amaral, at p. 1189.) Uncertainty in the amount of damage will not defeat a plaintiff's claim. (Id. at p. 1190.)
The jury here was properly instructed under Wage Order No. 5 (see part I, ante), to consider only the time that Rocha actually spent carrying out her resident manager duties for Vu. It considered Rocha's trial testimony — contradicting her deposition testimony — that her hours were not in fact continuous, and that while she worked for Vu she also worked for other apartment complex owners, took several semesters of classes, cooked for her family, performed volunteer work and cared for her daughters, including taking them to and from school. Rocha conceded in cross-examination that the time she spent preparing work orders was not part of her resident manager duties, and the jury was entitled to discount the time Rocha took preparing those orders. As we have concluded above, the trial court properly admitted, and the jury considered, evidence that Vu's replacement managers' duties at Sterling took them between two and 12 hours each month, a fraction of the hours that Rocha claimed.
While Rocha explained her duties in detail, her testimony about the time it took her to perform duties was limited. She testified it took her "about one hour, one hour and a half" to comply with all of the instructions provided to her by Vu for tenants who had not paid rent. When asked how long it took her during the first week of the month to gather up receipts and create rent reports, she testified, "I don't have the amount exactly, but I was working — as soon as I was getting the receipts, for example, if I got from my building, I start working on it, about an hour or more. Depends. [¶]... [¶] For each one [complex] I think takes more than an hour, because I have to go through the — every single receipt and put notes." Rocha's daughter testified that her mother worked continuously, but she confirmed on cross-examination that for the majority of the day she was at school and did not actually see her mother working. On the other hand, defense witness Irene Behena testified she never worked more than an eight-hour day or more than 40 hours a week for Vu. Specifically, she stated it took her about 10 minutes each month to collect rent receipts and write rent reports; three or four minutes to write up a three-day notice for a defaulted tenant; no more than one-half hour to write up a lease, explain it to a tenant, and complete the move-in form; 10 or 15 minutes to perform a walk-through and move-out report; and two to five minutes to fill out a maintenance work order. Irene Behena testified she spent about one hour each month on cleaning the common areas, explaining that the handyman took care of the yards and tenants were instructed to keep the areas clean.
The jury was entitled to take into account the credit for the value of Rocha's apartment and conclude from Kennedy's testimony that Rocha was compensated for many more minimum wage hours (51.2 per week under the federal minimum wage, and 29 hours per week, excluding bonuses, under state minimum wage) than Rocha actually worked. In view of all the evidence, the jury was amply warranted in rejecting Rocha's testimony and that of her expert that she worked full time for Vu plus overtime, between eight and 12 hours every day, for only $50 in pay.
The jury likewise rejected Rocha's claim for failure to pay wages due upon Rocha's termination on January 18, 2005. (§§ 201, 202.) Rocha argues the only related evidence on the point was the fact Rocha may have received discounted housing (or a prorated amount) for January 2005. According to Rocha, because the housing credit is not applicable, she received no such wages and was entitled to judgment on this claim. Rocha's premise fails based on our conclusion (part III (A), ante) that under state law and Wage Order No. 5, Rocha's rental agreement constituted a voluntary written agreement to credit rent toward her minimum wage. As this constitutes Rocha's sole argument on the matter, we address it no further.
VII. Instructional Error
Rocha contends the court erred by rejecting proposed jury instructions as to willful suppression of evidence, failure to pay biweekly/monthly wages, duty and failure to provide wage statements, and reporting time pay. Her sole argument is to compare the circumstances of her case to those in Daum v. Spinecare Medical Group, Inc. (1997) 52 Cal.App.4th 1285, which she claims held that special instructions on negligence were erroneously rejected on the trial court's stated reasoning that expert testimony would set the standard of care. Rocha maintains the trial court here made a "similar" error and that her special instructions would have guided the jury in determining whether Vu committed Labor Code violations based on the method and amounts Rocha was actually paid.
Normally, in reviewing a plaintiff's claim of instructional error, we view the evidence in the light most favorable to the plaintiff. (Alcala v. Vazmar Corp. (2008) 167 Cal.App.4th 747, 754.) But we cannot assess Rocha's claims of instructional error absent some explanation of the basis for the trial court's rulings and a showing of how Rocha's evidence was sufficient to warrant giving the instruction to the jury. It is not our role to make Rocha's arguments for her. (Paterno v. State of California, supra, 74 Cal.App.4th at p. 106.)
Further, it is Rocha's burden to show that the court's instructional errors, assuming such errors, were prejudicial. (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 574, citing Cal. Const., art. VI, § 13.) Refusal of a proper instruction is prejudicial error only if " ' "it seems probable" that the error "prejudicially affected the verdict." ' " (Bullock v. Phillip Morris USA, Inc. (2008) 159 Cal.App.4th 655, 685.) To decide this matter, we must evaluate " '(1) the state of the evidence, (2) the effect of other instructions, (3) the effect of counsel's arguments, and (4) any indications by the jury itself that it was misled. [Fn. omitted.]' " (Ibid., quoting Soule v. General Motors Corp., at pp. 580-581.) Rocha does not address any of these points. We observe the jury did not request a rereading of the instructions and there is no other evidence it was misled or confused.
The jury's defense verdict turned on the jury's implicit assessment that Rocha's actual hours worked on resident manager duties for Vu was well below the hours she claimed, and that Vu had adequately compensated her with both state and federal minimum wage. Kennedy's testimony amply supports the jury's conclusions as to Rocha's lawful compensation. In view of the jury's verdict, Rocha has not shown, and we are unable to conclude, there is a "reasonable probability that the [alleged instructional] error[s]... affected the jury's verdict." (Soule v. General Motors Corp., supra, 8 Cal.4th at pp. 582-583.)
VIII. Alleged Irregularities in the Proceedings
Rocha contends the cumulative effect of the combined trial errors deprived her of a fair trial. (See Delzell v. Day (1950) 36 Cal.2d 349, 351-352.) However, we have upheld all but one of the trial court's challenged pretrial and evidentiary rulings. As to those motions the court improperly granted and its ruling permitting an offset defense, Rocha has not suffered prejudice in view of the jury's defense verdict on her wage claims. Under the circumstances, we cannot say that in the absence of those errors, the jury would have reached a different verdict. (Delzell, at pp. 351-352.)
Rocha further complains that the trial court engaged in misconduct. "A trial court commits misconduct if it 'persists in making discourteous and disparaging remarks to a defendant's counsel... and utters frequent comment from which the jury may plainly perceive that the testimony of the witnesses is not believed by the judge, and in other ways discredits the cause of the defense....' " (People v. Fudge (1994) 7 Cal.4th 1075, 1107.) In reviewing Rocha's claims, our task " 'is not to determine whether the trial judge's conduct left something to be desired, or even whether some comments would have been better left unsaid. Rather, we must determine whether the judge's behavior was so prejudicial that it denied [the appellant] a fair, as opposed to a perfect, trial.' " (People v. Snow (2003) 30 Cal.4th 43, 78; see also Catchpole v. Brannon (1995) 36 Cal.App.4th 237, 245 [due process of law minimally requires "the opportunity to be fully and fairly heard before an impartial decisionmaker"], disapproved on other grounds in People v. Freeman (2010) 47 Cal.4th 993, 1006, fn. 4.)
Rocha asserts the court made light of a "tense situation" while Vu was cross-examined regarding the truth or falsity of her discovery verifications, assertedly ruining the significance of the misconduct before the jury. She further argues the court at the same time threatened to strike her testimony in full as evasive, while allowing Vu to explain her answers. She asks us to consider these incidents in view of the court's willingness to refer to her as an "illegal alien" and the fact the court "allowed [Vu's] counsel (over [Rocha's] objections and request for a side-bar) to repeatedly question [Rocha] as to whether she 'agreed' to [Vu's] illegal employment conditions" that assertedly misrepresented the law to the jury.
We do not perceive any judicial bias or misconduct in the record. With regard to the court's acceptance of the term "illegal alien, " Rocha does not refer us to any place in the record where the court used the term before the jury or where her immigration status was mentioned to the jury. As Vu points out, the court's comment occurred during pretrial evidentiary hearings, so the jury did not consider it. And the court stated it found no issue with the term and had used it as a former assistant United States attorney. Indeed, the term is apparent shorthand for the phrase "alien who is not lawfully present in the United States" used in federal statutes. (See 8 U.S.C. §§ 1621(d), 1623; see also 8 U.S.C. § 1101(a)(3) [defining "alien" as "any person not a citizen or national of the United States"].) We perceive no inherent bias toward Rocha by the comment. Even if the illegal alien comment (and the court's attempt at humor) were indicative of judicial bias, Rocha's counsel forfeited the claims by failing to object or ask the court to recuse itself on grounds of bias. (See Moulton Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1218; People v. McWhorter (2009) 47 Cal.4th 318, 373 [counsel must raise bias or misconduct objection below on grounds asserted on appeal].) In response to the court's question, "Was she an illegal alien at the time she worked?" counsel merely asked, " 'Illegal alien' is such a strong word. Can we just call her undocumented?" That is insufficient to preserve a claim of judicial bias or misconduct.
As for the court's threat to strike the entirety of Rocha's testimony, the record shows that the court made its remark following what it perceived were several instances of Rocha's unresponsiveness to defense counsel's questions, explaining in the jury's presence that it was not limiting Rocha to a yes or no answer. Thereafter, the court excused the jury and spoke to counsel and the parties, cautioning that if Rocha did not answer the questions she risked losing her testimony, as admonishments were not working. Rocha's counsel indicated in response that the court appeared "vexed, " and the court responded that it was not vexed, and that if it was going to embarrass counsel it would have done so before the jury. The court explained it wanted Rocha to "understand the consequences of her continuous and continuing failure to answer questions." It also emphasized to counsel that it was not limiting Rocha to yes or no answers, provided her answer was responsive to the questions asked. The court's action in this regard was not indicative of bias, but "merely one of exercising its reasonable control of the trial." (People v. Fudge, supra, 7 Cal.4th at p. 1108.) We defer to the court's decisions to control the proceedings over which it presides absent clear evidence of bias or other misconduct. (Ibid.)
Finally, Rocha urges us to consider the fact that the court allowed Vu's counsel to ask, over relevance and Evidence Code 352 objections, questions concerning Rocha's willingness to accept additional compensation from Vu for her additional duties on Vu's other apartment complexes, including laundry room money as compensation. The court denied Rocha's counsel's request for a sidebar, overruling all of the objections, and when counsel finally requested a jury instruction as to Vu's minimum wage obligations, the court denied it and also denied counsel's ensuing request for mistrial. There was no objection asserted to these circumstances on grounds of alleged misconduct or bias. (People v. Fudge, supra, 7 Cal.4th at p. 1108.) Even assuming the claim was preserved, we cannot say Rocha suffered prejudice in view of the instructions to the jury, which told them "[a]n employee is entitled to be paid the legal minimum wage rate even if she agrees to work for a lower wage." We presume the jury followed that instruction, which would ameliorate any misunderstanding of the law.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J., McDONALD, J.