Rodriguez v. E.M.E., Inc.

246 Cal.App.4th 1027

201 Cal.Rptr.3d 337

Juan RODRIGUEZ, Plaintiff and Appellant,

v.E.M.E., INC., Defendant and Respondent.

B264138

Court of Appeal, Second District, Division 4, California.

Filed April 22, 2016

Rastegar Law Group, Farzad Rastegar and Joshua N. Lange for Plaintiff and Appellant.

Carlson & Jayakumar, Newport Beach, Keith W. Carlson, Christine De Bretteville and Jamie D. Mayorga for Defendant and Respondent.

Seyfarth Shaw, Jeffrey A. Berman, Los Angeles, and Kiran A. Seldon for California Hospital Association; Civil Justice Association of California; California Association of Health Facilities; and The California Retailers Association as Amicus Curiae on behalf of Defendant and Respondent.

MANELLA, J.

In the underlying action, appellant Juan Rodriguez asserted putative class claims against respondent E.M.E., Inc. (E.M.E.) for violations of the Labor Code, Industrial Welfare Commission (IWC) Wage Order No. 1–2001 (Wage Order 1–2001), and the unfair competition law (UCL) (Bus. & Prof.Code, § 17200 et seq. ). After granting appellant's motion for class certification, the trial court granted E.M.E.'s motion for summary judgment on appellant's claims, which relied on Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1026, 139 Cal.Rptr.3d 315, 273 P.3d 513 (Brinker ). We conclude that summary judgment was incorrectly granted with respect to appellant's claims relating to rest breaks, as Brinker explained that under the applicable wage order provision, rest breaks in an eight-hour shift should fall on either side of the meal break, absent factors rendering such scheduling impracticable. We therefore affirm in part, reverse in part, and remand for further proceedings.

RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

There are no material disputes regarding the following facts: E.M.E. is a family-owned metal finishing company that has been in business since 1962, and engages primarily in aerospace work. After receiving metal parts made by machine shops, E.M.E. inspects the parts, processes them to increase their longevity, paints them, and returns them to their makers. E.M.E. has a single facility located in Compton, and has 125 employees, of which 121 are paid on an hourly basis.

E.M.E. employed appellant for periods between 1995 and 2013. Appellant initially worked as a painter in the paint department. Later, he acted as a shift supervisor until February 2013, when he resumed his former role as a painter. In the course of his employment, he worked on the first shift (from 7:30 a.m. to 4:00 p.m.) and the second shift (from 3:30 p.m. to 11:30 p.m.). During the first shift, employees received a 20–minute rest break at 9:30 or 9:40 a.m., and a 30–minute meal break at 12:30 p.m.; during the second shift, they received a 30–minute meal break at 5:30 p.m. and a 20–minute rest break at 8:00 p.m. In May 2013, appellant ended his employment at E.M.E.

Appellant's class action complaint, filed August 16, 2013, contained claims under the Labor Code, the UCL, and Wage Order No. 1–2001, which obliges employers to provide a 30–minute meal period "for a work period of more than ... [ ]5[ ] hours," and rest periods accruing "at the rate of ... [ ]10 [ ] minutes per ... [ ]4[ ] hours or major fraction thereof" (Cal.Code Regs, tit. 8, §§ 11010(11)(A), 11010(12)(A) ). The complaint's first and second causes of action asserted that appellant had failed to provide meal and rest breaks (Lab.Code, §§ 226.7, 512 ). Underlying those claims were allegations that E.M.E. had contravened Wage Order 1–2001 by failing to supply the requisite 30–minute meal breaks and compelling employees "to take a single, combined rest period...." The complaint's remaining claims (the third through seventh causes of action) were for failure to pay minimum wages, overtime compensation, and wages due (Lab.Code, §§ 201 –204, 226, 510, 1194, 1197 ), failure to provide accurate pay statements (Lab.Code, §§ 226, 1174, 1174.5 ), and unfair business practices under the UCL. The complaint sought compensatory damages and penalties.

In December 2014, relying primarily on Brinker, supra, 53 Cal.4th at p. 1026, 139 Cal.Rptr.3d 315, 273 P.3d 513, E.M.E. sought summary judgment or adjudication on the complaint with respect to appellant's claims as an individual. E.M.E. requested summary adjudication on the first cause of action, contending that appellant always had been permitted 30–minute meal breaks. E.M.E. also requested summary adjudication on appellant's second cause of action, contending that E.M.E.'s practice of providing a "combined" 20–minute rest period before or after the meal break (depending on the shift) was lawful. In light of the purported defects in the first and second causes of action, E.M.E. requested summary adjudication on the remaining "derivative" claims.

In February 2015, while E.M.E.'s motion for summary judgment or adjudication was pending, appellant filed a motion for class certification of the complaint's claims relating to the failure to provide rest breaks. After granting the motion for class certification, the trial court concluded that summary adjudication was proper with respect to appellant's first and second causes of action, and thus granted summary judgment with respect to his entire complaint. On March 5, 2015, the court entered a judgment in favor of E.M.E. dismissing the entire action with prejudice. This appeal followed.

DISCUSSION

Appellant contends the trial court erred in granting summary judgment with respect to the claims relating to the provision of rest breaks. For the reasons discussed below, we agree.

A. Standard of Review

"A summary adjudication motion is subject to the same rules and procedures as a summary judgment motion. Both are reviewed de novo. [Citations.]" (Lunardi v. Great–West Life Assurance Co. (1995) 37 Cal.App.4th 807, 819, 44 Cal.Rptr.2d 56.) "A defendant is entitled to summary judgment if the record establishes as a matter of law that none of the plaintiff's asserted causes of action can prevail. [Citation.]" (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107, 252 Cal.Rptr. 122, 762 P.2d 46.) Generally, "the party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, 107 Cal.Rptr.2d 841, 24 P.3d 493.) In moving for summary judgment, "all that the defendant need do is to show that the plaintiff cannot establish at least one element of the cause of action—for example, that the plaintiff cannot prove element X." (Id. at p. 853, 107 Cal.Rptr.2d 841, 24 P.3d 493, fn. omitted.)

Although we independently assess the grant of summary judgment, our inquiry is subject to two constraints. Under the summary judgment statute, we examine the evidence submitted in connection with the summary judgment motion, with the exception of evidence to which objections have been appropriately sustained. (Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 711, 81 Cal.Rptr.3d 406 ; Code Civ. Proc., § 437c, subd. (c).) The parties asserted numerous evidentiary objections to the showing proffered by their adversary. Because the trial court did not expressly rule on the objections, we presume them to have been overruled. (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 534, 113 Cal.Rptr.3d 327, 235 P.3d 988 (Google ).) To the extent E.M.E. asserts an evidentiary objection on appeal, we discuss it below (see pt. D. of the Discussion, post ).

Furthermore, our review is governed by a fundamental principle of appellate procedure, namely, that " ‘[a] judgment or order of the lower court is presumed correct,’ " and thus, " ‘error must be affirmatively shown.’ " (Denham v. Superior Court (1970) 2 Cal.3d 557, 564, 86 Cal.Rptr. 65, 468 P.2d 193, italics omitted, quoting 3 Witkin, Cal. Procedure (1954) Appeal, § 79, pp. 2238–2239.) Under this principle, appellant bears the burden of establishing error on appeal, even though E.M.E. had the burden of proving its right to summary judgment before the trial court. ( Frank and Freedus v. Allstate Ins. Co. (1996) 45 Cal.App.4th 461, 474, 52 Cal.Rptr.2d 678.) For this reason, our review is limited to contentions adequately raised in appellant's briefs. (Christoff v. Union Pacific Railroad Co. (2005) 134 Cal.App.4th 118, 125–126, 36 Cal.Rptr.3d 6.)

In view of that principle, the focus of our inquiry is on the claim relating to rest breaks. E.M.E. sought summary adjudication separately with respect to appellant's meal break claim (the first cause of action) and his rest break claim (the second cause of action); furthermore, its motion for summary judgment—insofar as it encompassed the meal break claim—was predicated on the ground underlying the related request for summary adjudication. In granting summary judgment, the court granted summary adjudication separately with respect to the meal break claim and the rest break claim. Because appellant does not discuss the meal break claim, he has forfeited any contention of error that summary adjudication was improperly granted with respect to that claim. (Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1177, 80 Cal.Rptr.3d 6 ; Yu v. Signet Bank/Virginia (1999) 69 Cal.App.4th 1377, 1398, 82 Cal.Rptr.2d 304 ; Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6, 76 Cal.Rptr.2d 457.) Furthermore, as the parties do not dispute that the complaint's other claims (the third through seventh causes of action) are "derivative," the propriety of summary judgment with respect to them hinges on the existence of triable issues regarding the rest break claim.

B. Governing Principles

Appellant's rest break claim relies on section 226.7 of the Labor Code and...