Payton v. Csi Elec. Contractors, Inc.

27 Cal.App.5th 832

238 Cal.Rptr.3d 571

James PAYTON, Plaintiff and Appellant,

v.CSI ELECTRICAL CONTRACTORS, INC., et al., Defendants and Respondents.

B284065

Court of Appeal, Second District, Division 2, California.

Filed September 28, 2018

Peter R. Dion-Kindem, Woodland Hills; The Blanchard Law Group and Lonnie C. Blanchard, III, Los Angeles, for Plaintiff and Appellant.

Atkinson, Andelson, Loya, Ruud & Romo, Ronald W. Novotny and Jon M. Setoguchi, Cerritos, for Defendant and Respondent CSI Electrical Contractors, Inc.

Pacific Employment Law, Maureen K. Bogue, San Francisco and Noah Levin for Defendant and Respondent First Solar, Inc.

LUI, P. J.

James Payton appeals from an order denying class certification. Payton filed this putative class action alleging wage and hour violations against respondents CSI Electrical Contractors, Inc. (CSI) and First Solar, Inc. (First Solar) (collectively "Respondents"). The claims arose from construction work on a solar farm project in San Luis Obispo County.

Payton sought certification of two classes. The first, the Rest Period Class, concerned persons affected by Respondents’ alleged practice of "tacking" the required 10-minute afternoon rest break onto the end of the 30-minute lunch break, resulting in a 40-minute midday break rather than a separate midafternoon break. The second, the Travel Pay Class, concerned persons who were not paid for time spent commuting in company-provided buses to the construction site, allegedly in violation of union contracts.

The trial court denied certification of both classes. With respect to the Rest Period Class, the trial court found that a class action was inappropriate and unworkable in light of the individual issues arising from evidence that particular working groups actually received regular afternoon breaks. With respect to both classes, the trial court found that Payton's trial plan was inadequate and that he was not a suitable class representative. The trial court based this finding on Payton's prior criminal convictions and the fact that he is also pursuing a personal wrongful discharge claim. The trial court denied Payton's request to look for a new class representative in light of the age of the case and the other problems with the motion for class certification.

We affirm. Substantial evidence supports the trial court's conclusion that individual questions would predominate in determining which class members actually have a claim for missed rest breaks. The trial court also acted within its discretion in finding that Payton is not an adequate class representative, and in denying leave to substitute another representative in light of the age of the case and the futility of doing so.

BACKGROUND

1. Payton's Complaint

Payton was hired on May 22, 2012, by CSI as an electrical and construction worker to work on the Topaz Solar Farm. He claims he was "effectively terminated" less than a month later on June 14, 2012. First Solar was the "owner, operator and manager" of the Topaz Solar Farm, which is located in San Luis Obispo County.

Respondents provided buses that transported employees from employee parking lots to the jobsite. Travel time to the site could take up to an hour and a half. Payton claimed that Respondents were obligated under certain union contracts to pay travel time for employees who took these buses. Payton asserted class claims for the alleged failure to pay travel time, including claims for overtime compensation where warranted.

Payton also alleged that Respondents violated applicable regulations governing rest periods and meal breaks by tacking the second of the required two daily rest breaks onto the end of the midday meal period. Payton asserted class claims for this alleged violation on behalf of employees who worked shifts longer than six hours.

In addition to these class claims, Payton asserted an individual claim for wrongful termination in violation of public policy. Payton claimed that he suffered an injury on the job causing a "deep gash in his wrist." He alleged that the injury "exposed a fault in the safety gear provided by Defendants" and that Respondents provided inadequate treatment. He claimed that his employment was terminated after he complained about the lack of proper safety equipment and about Respondents’ failure to provide him with adequate care for his injury. He further claimed that Respondents falsely reported the reason for the termination as a " ‘reduction of workforce.’ "

2. Payton's Motion for Class Certification

Payton filed a motion seeking certification of two classes. The Rest Period Class was allegedly composed of "All persons employed by CSI in the State of California as construction workers at the Topaz Solar Farm during the period from October 21, 2009 to the date ... the class is certified who do not opt out and who worked a shift longer than six hours." The Travel Pay Class allegedly consisted of "All persons employed by CSI in the State of California as construction workers at the Topaz Solar Farm during the period from October 21, 2009 to the date ... the class is certified who do not opt out and who traveled to or from the work site using transportation provided [by] CSI or First Solar."

With respect to the Rest Period Class, Payton claimed that the tacked break policy violated paragraph 11 of Industrial Welfare Commission wage order No. 16-2001 (Wage Order 16). That paragraph states in relevant part that "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. Nothing in this provision shall prevent an employer from staggering rest periods to avoid interruption in the flow of work and to maintain continuous operations, or from scheduling rest periods to coincide with breaks in the flow of work that occur in the course of the workday. The authorized rest period time shall be based on the total hours worked daily at the rate of ten (10) minutes net rest time for every four (4) hours worked, or major fraction thereof." ( Cal. Code Regs., tit. 8, § 11160, subd. 11(A).) Payton claimed that, under Labor Code section 226.7, Respondents "must pay one additional hour of compensation for each work day that the rest period is not provided."

With respect to the Travel Pay Class, Payton argued that Respondents were obligated to pay for travel time under several union agreements. The pertinent provision in those agreements stated that "[t]he Employer shall pay for traveling time and furnish transportation from shop to job, job to job, and job to shop. Travel time shall be at the appropriate rate of pay for that day of the week."

Payton supported the motion with his own declaration stating that he received only a "tacked" afternoon break on the job and was not paid for his travel time on the company buses. He also submitted excerpts from the deposition of CSI's corporate representative, Michael While, who testified in response to a question about " ‘all of the meal break practices at the Topaz site.’ " While stated that "[t]he employees would take a — a break at 9:30. Employees would take lunch at 12:00 o'clock. And then they would pick up at the end of the day to go home. [¶] Q Okay. Was a rest break provided in the afternoon similar to the 9:30 rest break? [¶] A It was tacked onto the lunch break, so the employees would take a 40-minute lunch. [¶] Q Okay. The practice of the Topaz site was that there would be a 30-minute lunch break, plus a simultaneous ten-minute rest break extending the whole period to 40 minutes, and there would be no separate rest break in the afternoon; correct? [¶] A Correct. On an eight hour day." While also testified that he communicated this practice to new employees at their orientation.

3. Respondents’ Opposition

Respondents denied that there was a policy at the Topaz construction site to deprive workers of an afternoon break. Respondents submitted declarations from numerous employees testifying that they always received afternoon breaks separate from the lunch break. The declarations included testimony by a union business manager that part of his job was to ensure that employees took their afternoon breaks.

Respondents also submitted a declaration from While explaining his deposition testimony. While explained that his testimony about the practice of tacked afternoon breaks "referred to scheduled, site-wide breaks." He said that he "did not understand counsel to be asking me about, and I did not testify regarding, afternoon breaks taken at the crew or individual level, rather than on a site-wide basis." He explained that, "[w]hile additional afternoon breaks were not scheduled on a site-wide basis, individual workers and crews were always permitted to take additional afternoon rest breaks, as needed, consistent with the work being performed on any given day." He personally observed crews taking afternoon breaks between 2:00 p.m. and 3:00 p.m.

With respect to Payton's alleged Travel Pay Class, Respondents denied that the travel pay provision on which Payton relied was applicable. They also argued that the claim for travel pay was preempted by federal law because it involved the alleged interpretation and breach of a collective bargaining agreement. In addition, they asserted that the claim was barred by the doctrine of judicial estoppel, because in opposing remand of the case following removal to federal court Payton represented that he did not seek relief under collective bargaining agreements.

4. The Trial Court's Ruling

The trial court denied Payton's motion on several grounds. First, with respect to the Rest Period Class, the court found that individual issues would predominate in determining which employees were not permitted to take afternoon rest breaks. The trial court credited Respondents’ employee declarations and While's explanation of his deposition testimony and concluded that, based on that evidence, "trial would turn into an individual-by-individual exercise." The...