Brinkley v. Public Storage
Filed 8/2/12 Brinkley v. Public Storage CA2/3
Opinion following transfer from Supreme Court
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
FRED BRINKLEY,
Plaintiff and Appellant,
v.
PUBLIC STORAGE, INC.,
Defendant and Respondent.
B200513
(Los Angeles County
Super. Ct. No. BC332009)
APPEAL from
an order of the Superior Court of
County,
Charles C. Lee, Judge. Affirmed.
Law Office
of Joseph Antonelli, Joseph Antonelli and Janelle C. Carney;
Law Offices of Kevin T. Barnes, Kevin T. Barnes and Gregg Lander for Plaintiff
and Appellant.
Freeman,
Freeman & Smiley, Bradley D. Ross and Azadeh Allayee for Defendant and
Respondent.
_____________________
Plaintiff asserts class action and
Labor Code. He alleges that defendant,
his former employer, provided paystubs containing misstatements in violation of
Labor Code section 226.
name="_ftnref1" title="">[1] An employer, however, cannot be liable for
misstatements on paystubs unless it knowingly and intentionally makes such
misstatements and an employee suffers
case.
Plaintiff
also asserts causes of action based on section 226.7 on the ground defendant
failed to ensure that plaintiff and other class members took all meal and rest
periods they were entitled to take. California law, however, only requires that
employers make available such periods, which defendant did here. (Brinker
Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1017 (
We affirm
the trial court’s order granting defendant summary adjudication with respect to
plaintiff’s section 226 and section 226.7 causes of action.
1. Plaintiff’s
Employment at Public Storage, Inc.
Plaintiff
and appellant Fred Brinkley worked as a property manager for defendant and
respondent Public Storage, Inc. for a little more than four months before
defendant terminated his employment.
Plaintiff was a nonexempt employee.
2. Paystubs
Plaintiff
and other property managers received paychecks from defendant twice per
month. The paychecks included a paystub
called an “Earnings Statement,” which stated the hours worked, gross pay, pay
rate, taxes withheld and other information regarding the employee’s
compensation. The paystubs listed three
categories of pay: regular earnings,
overtime earnings and “Assoc Mileage,” i.e. associated mileage.
Plaintiff and other property
managers were paid $0.19 per hour worked for associated mileage, regardless of
whether they traveled for work purposes.
Additionally, managers received actual reimbursement of all mileage
expenses incurred in excess of 20 miles for travel to specified meetings.
Certain of
plaintiff’s paystubs erroneously stated $11.20 per hour as the rate for
associated mileage instead of the actual rate of $0.19 per hour.
the dollar amount paid for associated mileage, however, were accurately stated
in these paystubs.
An outside
payroll service, ADP, Inc. (ADP), prepared defendant’s paychecks and paystubs
based on information provided by defendant.
After plaintiff commenced this action, ADP corrected the rate for
associated mileage stated on the paystubs pursuant to defendant’s
instructions. Defendant claims that it
did not know of this error prior to the lawsuit and that the error was
inadvertent.
3. Meal
Periods
Defendant
had a policy requiring all employees to take a 30-minute meal period whenever
an employee worked at least five hours in a shift. Further, employees were required to sign in
and out during their meal break, but from time-to-time did not do so. According to defendant’s senior vice president
Candace Krol, defendant reprimanded employees for working during lunch.
Plaintiff understood that defendant’s
policy required him and all hourly employees to take a meal period. James Bottini and Cindy Kohler, two former
managers who filed declarations opposing defendant’s motion for summary
adjudication, also understood this policy.
Plaintiff “[g]enerally” took a meal period “at some point.”
Plaintiff,
Bottini and Kohler claim that they regularly worked shifts longer than six
hours and rarely took an uninterrupted (duty-free) lunch within the first five
hours of their shift. Plaintiff’s
timecards indicate that at times plaintiff did not take a meal break until more
than five or six hours after his shift commenced.
4. Rest
Periods
Defendant’s
Employee Handbook states that employees may take two 10-minute rest periods
each day. It further states that such
periods should be scheduled, insofar as possible, midway through the morning
and midway through the afternoon.
Plaintiff received this handbook when he began his employment with
defendant. Defendant advised plaintiff
and other employees at a district meeting that they were required to take rest
and lunch breaks. Plaintiff claims he
rarely took rest breaks in the middle of any four-hour shift.
5. Plaintiff’s
Allegations
Plaintiff’s
operative pleading is his First Amended Complaint (FAC). At issue in this appeal are the third, fifth
and sixth causes of action. In the third
cause of action, the FAC alleges that defendant violated section 226 by failing
to provide plaintiff with an accurate accounting of earned wages. In his fifth and sixth causes of action, the
FAC alleges that defendant violated section 226.7 by failing to provide
plaintiff with meal periods and rest periods as required by the Labor Code.
6. Class
Certification
On
November 2, 2006, the court entered an order granting plaintiff’s class
certification with respect to specified subclasses relating to plaintiff’s
paystub and meal period claims. The
paystub subclass included all nonexempt property managers who “received wage
statements containing inaccurate mileage reimbursement rates and hours for
reimbursable miles driven while working for” defendant.
The meal
period subclass included all nonexempt property managers who “(1) worked a
period of more than 6 hours (a) without a meal period of not less than
30 minutes; or (b) without a meal period within the first five (5) hours
of work or (2) worked a period of more than 10 hours per day (i) without
being provided a second meal period of not less than 30 minutes, (ii) without a
meal period within the second five (5) hours of work except if (A) the total
hours worked were not more than 12 hours per day, (B) the second meal period
except [sic] was waived by mutual
consent of Public Storage, Inc. and the employee, and (C) if the first meal
period was not waived.”
7. Motion
for Summary Judgment/Summary Adjudication
On March 13,
2007, defendant filed a Motion for Summary Judgment, or in the Alternative, for
Summary Adjudication. On June 22, 2007,
the court denied defendant’s motion for summary judgment and granted, in part,
its motion for summary adjudication. The
court ruled that defendant was entitled to judgment as a matter of law with
respect to plaintiff’s third, fifth and sixth causes of action. Plaintiff filed a timely notice of appeal
from this order.
title="">[3]
8. Procedural
History in This Court and the California Supreme Court
On October
28, 2008, we issued an opinion affirming the trial court’s order granting
defendant summary adjudication of plaintiff’s third, fifth and sixth causes of
action. We modified the opinion without
changing the judgment on November 5, 2008.
On January 9, 2009, while the Brinker
case was pending, the California Supreme Court granted plaintiff’s petition
for review.
On June 20,
2012, the California Supreme Court ordered this court to vacate its previous
opinion and to reconsider the cause in light of Brinker, which was issued on April 12, 2012. In compliance with this directive, we issued
an order vacating our previous opinion on July 19, 2012. Having considered Brinker, we now issue this opinion.
The standard of review for an order
granting a motion for summary adjudication is de novo. (Los
Angeles Unified School Dist. v. Great American Insurance Co. (2008)
163 Cal.App.4th 944, 956.) We must
independently review defendant’s motion as if we were standing in the shoes of
the trial court.
A defendant
moving for summary adjudication of a cause of action bears the burden of
persuasion that there is no triable issue of material fact and that he or she
is entitled to prevail on the cause of action as a matter of law. (Aguilar
v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar) [rules governing summary judgment motions];
228 Cal.App.3d 1345, 1353 [motion for summary adjudication governed by rules
for motion for summary judgment].) A
moving defendant must show that either one or more elements of the cause of
action cannot be established or that there is a complete defense to that cause
of action. (Code Civ. Proc.,
§ 437c, subd. (p)(2).)
The moving
defendant bears the initial burden of production to make a prima facie showing
of the nonexistence of any triable issue of material fact. This burden is met by the production of
evidence. If the defendant meets his or
her burden of production, the burden shifts to the plaintiff to produce
evidence showing the existence of a triable issue of material fact. (Aguilar,
supra, 25 Cal.4th at p. 850.)
1. Whether defendant is entitled to
judgment as a matter of law with respect to plaintiff’s section 226 cause of
action.
2. Whether defendant is entitled to
judgment as a matter of law with respect to plaintiff’s section 226.7 cause of
action arising from defendant’s alleged failure to provide meal periods.
3. Whether defendant is entitled to
judgment as a matter of law with respect to plaintiff’s section 226.7 cause of
action arising from defendant’s alleged failure to provide rest periods.
1.
Because It Did Not Knowingly and Intentionally Violate the Statute and Because
Plaintiff and Class Members Did Not Suffer Injury
Plaintiff
claims that defendant violated section 226, subdivision (a), which requires
employers to furnish employees with certain information in writing at the time
of each payment of wages, including “(1) gross wages earned, (2) total hours
worked by the employee . . . and (9) all applicable hourly rates in effect
during the pay period and the corresponding number of hours worked at each
hourly rate by the employee.” Plaintiff
alleges that defendant violated this statute because certain paystubs indicated
that the associated mileage earnings rate was $11.20 per hour instead of $0.19
per hour.
Section 226,
subdivision (e) provides that an employee “suffering injury as a result of a
knowing and intentional failure by an employer to comply with subdivision (a)”
is entitled to recover the greater of actual damages or specified statutory
penalties. The trial court found that
defendant did not knowingly and intentionally violate section 226, subdivision
(a). We agree.
Defendant
met its burden of production by filing a declaration stating that the
misstatement of the associated mileage rate was inadvertent and, when
discovered, corrected. This evidence
showed that plaintiff could not establish an essential element of his claim,
namely that defendant intentionally and knowingly failed to provide required
information on its paystubs. The burden
of production thus shifted to plaintiff.
Plaintiff, however, produced no evidence of knowing or intentional
conduct by defendant.
The court
has discretion to deny summary adjudication of a cause of action where a
material fact is a moving party’s state of mind, or lack thereof, and that fact
is sought to be established solely by the moving party’s declaration. (Code Civ. Proc., § 437c,
subd. (e).) Here, however, there
are no facts or circumstances that would justify exercising such discretion. Defendant had no reason to overstate the
associated mileage rate and did not benefit from this misstatement.
In addition,
plaintiff cannot show that he or other paystub subclass members suffered any
injury. This, too, is an essential
element of plaintiff’s third cause of action.
Defendant
produced evidence showing that the error in the paystubs did not result in the
loss of pay. Defendant further showed
that the paystubs contained accurate information about gross earnings relating
to associated mileage and the total number of associated mileage hours. Plaintiff, however, was unable to produce any
evidence showing that he or other employees sustained any
mistakes in their paystubs.
Plaintiff
argues that the receipt of an inaccurate paystub ipso facto constitutes injury
within the meaning of section 226, subdivision (e). This interpretation, however, renders the
words “suffering injury” surplusage and meaningless. Such an interpretation is disfavored. (Jones
v. The Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158,
1184.) We hold that section 226 means
what it says: a plaintiff must actually
suffer injury to recover damages or statutory penalties.
The present
case is distinguishable from Wang v.
Chinese Daily News, Inc. (C.D.Cal. 2006) 435 F.Supp.2d 1042 (
In Wang, the paystubs stated
that the employees worked 86.66 hours regardless of the number of hours
actually worked, the length of the pay period, or the number of work days in
the pay period. This caused the
employees to suffer injury because they might not be paid for overtime work to
which they were entitled and they had no way of challenging the overtime rate
paid by the employer. (
underpaid or given insufficient information to challenge the payments he
received. This inadvertent technical
violation of section 226 caused no resulting damages.
Finally,
plaintiff argues that even if he cannot prove injury, the trial court erred in
granting summary adjudication on the third cause of action because he is
entitled to injunctive relief.
Plaintiff, however, did not pray for injunctive relief in his First
Amended Complaint. We cannot consider
plaintiff’s claim for injunctive relief because the issues raised by a motion
for summary adjudication are framed by the pleadings. (Distefano
v. Forester (2001) 85 Cal.App.4th 1249, 1264-65.) It is undisputed, moreover, that defendant
has corrected the error in the paystubs.
Accordingly, there are no grounds for injunctive relief.
2.
Because Defendant Made Meal Periods Available
Plaintiff argues
California law requires that employers not only provide an opportunity for employees to take meal periods, they
must ensure that employees actually
stop working during such periods. This
argument was rejected by Brinker. There, the court concluded “an employer’s
obligation is to relieve its employee of all duty, with the employee thereafter
at liberty to use the meal period for whatever purpose he or she desires, but
the employer need not ensure that no work is done.” (Brinker,
supra, 53 Cal.4th at p. 1017.)
In the present case, defendant
produced substantial evidence that it provided meal periods to plaintiff and
other meal period subclass members.
Defendant showed that (1) defendant had a written policy providing
for meal periods; (2) plaintiff and other managers were aware of this policy;
(3) defendant reprimanded employees for not taking meal periods; and (4)
defendant advised plaintiff and others at a meeting that they were required to
take lunch and rest breaks. Defendant
also produced 21 declarations of managers who worked for defendant. Each of these managers stated that they were
allowed to take meal periods at their own discretion.
Defendant
met its burden of production with respect to the meal period cause of
action. The burden of production thus
shifted to plaintiff. Plaintiff,
however, produced no admissible evidence that he or other meal period subclass
members were denied an opportunity to take meal periods. Although plaintiff claims that he and other
nonexempt employees at times missed meal breaks, plaintiff did not produce
evidence that he or other employees were denied an opportunity to take them.
Plaintiff
argues that defendant violated section 512
because plaintiff and other class members “did not always have meal breaks
within the first five hours of a shift.”
In Brinker, the court held
that, “absent waiver, section 512 requires a first meal period no later than
the end of an employee’s fifth hour of work, and a second meal period no later
than the end of an employee’s 10th hour of work.” (Brinker,
supra, 53 Cal.4th at
p. 1041.) Here, nonexempt property
managers scheduled their meal periods at their discretion. Merely because some managers, including
plaintiff, at times did not actually take their meal periods within the first
five hours does not mean defendant violated section 512. Plaintiff filed no evidence showing that
defendant precluded him or other employees from taking meal periods within the
first five hours of work. The trial
court thus correctly ruled in defendant’s favor on this issue.
Finally,
plaintiff claims that he and other employees were not allowed to leave the
premises or lock the office during their meal periods. Such meal periods, plaintiff contends, were
effectively “on duty,” and thus entitled employees to one hour of wages per meal
period. (See Bono Enterprises, Inc. v. Bradshaw (1995) 32 Cal.App.4th 968,
975, disapproved on other grounds in Tidewater
Marine Western, Inc. v. Bradshaw (1996) 14 Cal.4th 557, 574.) Plaintiff, however, did not raise these facts
or this argument in his brief or separate statement opposing defendant’s motion
for summary adjudication. We therefore
deem the argument forfeited. (
47 Cal.App.4th 1473, 1493.)
3.
Because Defendant Made Rest Periods Available
California law prohibits employers
from requiring employees to work during any rest period mandated by an
applicable Industrial Welfare Commission wage order. (§ 226.7(a).) The applicable wage order in this case, Wage
Order No. 4-2001, provides: “Every
employer shall authorize and permit all employees to take rest periods, which
insofar as practicable shall be in the middle of each work period. The authorized rest period time shall be
based on the total hours worked daily at the rate of ten (10) minutes net rest
time per four (4) hours or major fraction thereof.” (Cal. Code. Regs., tit. 8,
§ 11040(12)(A).)
California
law does not require an employer to ensure that employees take rest
periods. An employer need only make rest
periods available. (Cf.
periods can be waived]; accord White v.
Starbucks Corp (N.D. Cal. 2007) 497 F.Supp.2d 1080, 1086.)
Defendant
produced evidence showing: (1) defendant
had a written policy permitting employees to take rest periods in substantial
compliance with Wage Order No. 4-2001; (2) plaintiff received a copy of
this policy; and (3) defendant advised plaintiff and other employees at a
meeting that they were required to take rest periods. This evidence satisfied defendant’s burden of
production, thereby shifting the burden of production to plaintiff.
Plaintiff
failed to meet his burden. Plaintiff
stated in a declaration: “I rarely if
ever took timely rest breaks, that is a ten (10) minute break during the middle
of any four (4) hour shift. As [an]
hourly Bench Property Manager employee I was generally the manager on duty and
could not take breaks.” We agree with
the trial court that “[t]his is not an unequivocal statement that he was not
authorized or permitted to take a ten-minute break every four hours.”
Moreover, plaintiff’s statement that
he “could not” take rest breaks is a conclusory allegation and does not raise a
triable issue of material fact.
Plaintiff did not set forth any facts indicating that as a practical
matter, he could not take rest breaks.
Instead, he simply alleged
that he “could not” do so, without describing any factual basis for this
allegation. The closest plaintiff came
was his statement that “[a]s a Bench Property Manager, I was required to be on
the property at all times during my shift.”
An employer’s requirement that an employee be “on the property” at all
times, however, does not necessarily prohibit rest periods. Indeed, in many employment settings, there is
no practical way for an employee to take a 10-minute rest period without
staying on the property. Plaintiff
therefore failed to raise a triable issue
of material fact with respect to his rest period cause of action. (See Toigo
v. Town of Ross (1998) 70 Cal.App.4th 309, 329.)
DISPOSITION
The order
granting defendant summary adjudication of plaintiff’s third, fifth, and sixth
causes of action is affirmed. Defendant
is awarded costs on appeal.
KITCHING,
J.
We concur:
CROSKEY, Acting P. J.
ALDRICH,
J.
name="_ftn1" title="">[1] All further statutory references will
be to the Labor Code unless otherwise stated.
name="_ftn2" title="">[2] The
trial court properly sustained defendant’s objections to purported paystubs and
timecards submitted by plaintiff because these documents were not
authenticated. Defendant also submitted
several of plaintiff’s paystubs and timecards into evidence, which can be
considered by this court. Plaintiff
failed to provide any admissible evidence regarding subclass members’ paystubs.
