McMahan v. Heart N Soul Tax Services of Vallejo

Filed 9/22/08 McMahan v. Heart N Soul Tax Services of Vallejo CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Fresno County. Fred Dupras, Judge. (Retired judge of the Fresno Super. Ct., assigned by the Chief Justice pursuant to art. VI,  6, of the Cal. Const.)

Caswell Bell & Hillison and Randolf Krbechek for Plaintiff and Appellant.

Law Offices of Randal M. Barnum and Randal M. Barnum for Defendant and Respondent.

This is an appeal from a judgment after the trial court granted a motion for nonsuit made by defendant and respondent Heart N Soul Tax Services of Vallejo, Inc. Plaintiff and appellant Leslie McMahan filed the action below as an appeal from an adverse decision of the Labor Commissioner, which appeal is to be heard de novo (see Lab. Code,  98.2.), and has appealed the resulting judgment to this court. We will reverse the judgment.

Facts and Procedural History

Plaintiff worked as a regional director for defendant. As such, she was required by her job to travel to various cities from her home location in Fresno. She used her own car for these trips.

When she assumed the regional director position, plaintiff agreed with defendant she would receive a monthly stipend of $200 for her automobile expenses. Later, plaintiff requested reimbursement of her full gasoline costs, which defendant began to pay plaintiff, together with parking and tolls on the few occasions she submitted those for reimbursement.

After plaintiffs employment ended, she filed a claim with the Labor Commissioner, contending she should have been reimbursed for use of her car at the rate approved by the Internal Revenue Service. This per-mile reimbursement rate is apparently designed to factor in depreciation, maintenance, and other costs of car ownership, and provides a more convenient basis (for both employer and employee) for such reimbursement than would an actual-cost reimbursement system. (See Gattuso v. Harte-Hanks Shoppers, Inc. (2007) 42 Cal.4th 554, 569.) The Labor Commissioner denied plaintiffs claim on the basis she failed to submit evidence of actual expenses beyond the gasoline costs that had been reimbursed.

At the present de novo trial in the superior court, the court excluded as irrelevant appellants mileage records, apparently concluding that only actual expense receipts and records were permissible to establish the reimbursement amount. At the close of appellants case, the court granted defendants motion for nonsuit. Judgment was entered.

Appellant filed a timely notice of appeal to this court.

Discussion

Although plaintiff has not made the superior court complaint a part of the record on appeal, it appears her claim for damages was in the amount of $20,157.17. Defendant contends such a demand makes this a limited civil action, appeal of which is to the appellate division of the superior court, not to this court. (See Code Civ. Proc.,  904.2.)

The case, regardless of the amount of plaintiffs demand for damages (see Code Civ. Proc.,  85, subd. (a)), apparently was filed by the clerk of the superior court as a nonlimited civil case, and was so designated on documents generated by the court. While it is true that the case is designated as limited on documents prepared by defendant for approval and signature by the trial court, there is no indication in the record that the case was ever reclassified as a limited civil case. (See Code Civ. Proc.,  403.040, subd. (a).) Accordingly, we conclude the appeal is properly before us. (See also id. at  911 [permitting Court of Appeal to order transfer to itself of any appeal pending before the superior court appellate division].)

We now turn to the merits of the appeal.

Labor Code section 2802 requires an employer to, among other things, reimburse its employees for expenses necessarily incurred in direct consequence of the discharge of his or her duties. An employee is not permitted to waive this right by contract, express or implied. (Lab. Code,  2804.)

An employer may reimburse its employees based on actual expenses, following an employees submission of receipts and other documentation (Gattuso v. Harte-Hanks Shoppers, Inc., supra, 42 Cal.4th at p. 568); by mileage reimbursement, following the employees submission of mileage records (id. at p. 569); or by a lump-sum payment designed to cover actual automobile costs (id. at p. 570). The employers choice of reimbursement method does not insulate the employer from the statutory duty to fully reimburse the relevant expenses. If the employee can show that the reimbursement amount that the employer has paid is less than the actual expenses that the employee has necessarily incurred for work-required automobile use (as calculated using the actual expense method), the employer must make up the difference. (Id. at p. 569.)

An employee is entitled to challenge as inadequate the reimbursement received from the employer. (Gattusco v. Harte-Hanks Shoppers, Inc., supra, 42 Cal.4th at pp. 569, 571.) An employee may do so by comparing the payment [received] with the amount that would be payable under either the actual expense method or the mileage reimbursement method. (Id. at p. 571.) If the comparison reveals that the reimbursement was inadequate, the employer must make up the difference. (Ibid.)

As noted, the trial court excluded plaintiffs mileage records from evidence on the grounds they were irrelevant. Gattuso, decided slightly more than a week after the trial in this matter but before entry of judgment, explicitly permits the employee to establish the amount of reimbursement by establishing the number of miles driven as a necessary part of her employment. (Gattusco v. Harte-Hanks Shoppers, Inc., supra, 42 Cal.4th at p. 571.)^[1] Accordingly, the trial court erred in granting nonsuit on the basis of plaintiffs failure of proof.

Disposition

The judgment is reversed; the cause is remanded for a new trial. Appellant is awarded costs on appeal.

______________________________

VARTABEDIAN, Acting P. J.

WE CONCUR:

__________________________________

DAWSON, J.

__________________________________

HILL, J.

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^[1]Gattusco v. Harte-Hanks Shoppers, Inc., supra, 42 Cal.4th 554, appears to permit the employer to prove the mileage reimbursement method results, under the facts of the case, in reimbursement exceeding the statutory measure of all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties.) (Lab. Code,  2802, subd. (a).) In this sense, the mileage reimbursement method seems to function much like a presumption, establishing the reimbursement amount unless a different amount (higher or lower) is established by the evidence.