Plaintiff Haim Avidor (plaintiff) is the lead plaintiff in this class action by current and former card dealers employed by defendant Sutter's Place, Inc., doing business as Bay 101 (often abbreviated by the parties as Bay 101 or the casino), which operated a cardroom in San Jose. Bay 101 required its dealers to contribute a set amount of the gratuities they received from players to a common account, which was distributed to other casino employees each payday. In this action plaintiff has contended that Bay 101 violated Labor Code section 351 by compelling its dealers to participate in this tip-pooling arrangement, thereby creating a cause of action for unfair business practices under Business and Professions Code section 17200 et seq. Plaintiff further contends that this withholding of the dealers' property amounted to violations of the minimum wage law (Lab. Code, § 1197), conversion, and the common count of money had and received. Because we disagree with plaintiff's interpretations of the statutory language applicable to the casino's tip-pooling arrangement, we must affirm the judgment in Bay 101's favor.
There were two sides to Bay 101's gaming operation: a poker side and a California games, or "Cal games," side. Patrons paid a fee to play against other patrons rather than against the house. The facility also housed a deli, a hair salon, and a sports bar, all part of Bay 101's business. At the time of trial, Bay 101 employed about 705 employees, of which about 260 were dealers.
The rotation schedule was set by the "lead" floor person, or "lead floor," and maintained by the "floor person" during the dealer's shift. A key role of the floor person was to settle disputes or questions that arose during play at the tables. Dealers were not permitted to become involved in any disputes or challenges; when those occurred, or if the dealer made a mistake, he or she had to summon a floor person (or if that person was unavailable, the lead floor or the shift manager), who had the authority to decide the matter. Dealers were not to question the decision of the floor person at the table, but could pursue the matter later, by discussing it with the lead floor, shift manager, casino coordinator, or dealer coordinator.
Players customarily tipped dealers when they won a hand, by tossing, sliding, or pushing a chip or chips from the pot toward the dealer. Both patrons and dealers occasionally tipped other employees as well. Plaintiff, for example, might tip a porter or waitress when he or she performed a service for him while he was dealing. Customers gave tips to floor people, chip runners, porters, waitresses, and anyone else whom they "felt like tipping," even cashiers.
For several years dealers were required to contribute a set amount per hour ($2.50 by poker dealers, $5 by Cal games dealers) into a tip pool, which was distributed to nondealer employees. The contribution was referred to as the "drop." In 2007 and part, of 2008, all dealers dropped $2.50 per hour. Thereafter the casino's policy changed to require dealers to drop $2.50 per down, only for the downs in which they dealt, not for "dead spreads," periods in which no games were played. The parties stipulated that dealers received between $750 and $1,500 in tips per week, and that on any given day they dropped no more than 15 percent of the tips they received from customers.
The recipients of the money in the tip pool changed periodically as Ronald Werner, the general manager, decided both the categories and amount of distributions. In 1998, for example, the recipient categories included floor people, card control, shift managers, surveillance director, surveillance personnel, casino host, porters, and tip pool administrator. After 1998, certain categories were removed, such as the shift manager and surveillance director in February 2001, other surveillance personnel at the end of March 2005, and
Although dealers were not always aware of who was in the tip pool, they were all informed of the policy during the orientation before beginning work at Bay 101. As early as 1995 dealers were instructed to sign a "Tip Pooling Agreement," which they signed in acknowledgment of and agreement to the drop policy.
This case began in December 2004, when plaintiff filed class proofs of claims in Bay 101's bankruptcy proceeding. The contested matter was later converted to an adversary proceeding, but eventually the parties stipulated to a dismissal designed to help effect a transfer of the dispute to state court. Plaintiff initiated this action in February 2007, generally alleging that Bay 101 illegally took tips patrons had given to dealers by compelling the dealers to participate in a tip pool.
Plaintiff's second amended complaint, filed on September 3, 2008, alleged seven causes of action: money had and received; breach of contract; collecting and receiving employee wages, in violation of Labor Code section 221; violation of the minimum wage law, Labor Code section 1197; unfair business practices in violation of the unfair competition law (UCL), Business and Professions Code section 17200 et seq.; conversion; and failure to indemnify employees, in violation of Labor Code section 2802.
After plaintiff rested, the trial court granted nonsuit on the first cause of action and thereafter granted Bay 101's motion for judgment on the remaining cause of action, pursuant to Code of Civil Procedure section 631.8. On July 12, 2011, the court entered judgment for Bay 101.
The foundation of plaintiff's position is section 351, which states: "No employer or agent shall collect, take, or receive any gratuity or a part thereof that is paid, given to, or left for an employee by a patron, or deduct any amount from wages due an employee on account of a gratuity, or require an employee to credit the amount, or any part thereof, of a gratuity against and as a part of the wages due the employee from the employer. Every gratuity is hereby declared to be the sole property of the employee or employees to whom it was paid, given, or left for. An employer that permits patrons to pay gratuities by credit card shall pay the employees the full amount of the gratuity that the patron indicated on the credit card slip, without any deductions for any credit card payment processing fees or costs that may be charged to the employer by the credit card company. Payment of gratuities made by patrons using credit cards shall be made to the employees not later than the next regular payday following the date the patron authorized the credit card payment."
Plaintiff essentially argues that Bay 101 has continued to appropriate dealers' property — their tips — in order to "fund part of the costs of employing other employees," those who were "not intended recipients of the tips." He draws a distinction between "given to" and "left for," pointing out that in the casino context, unlike a restaurant setting, customers give tips directly to dealers rather than leaving money on the table for all those who provided service during the visit. Plaintiff maintains that withholding a tip that was "given by a patron to an employee (singular) ... would necessarily be an illegal repudiation of the `sole property' and the `taking, collecting and receiving' provisions of [section] 351."
Given plaintiff's assumption that intent must be determined in order to apply section 351, we consider plaintiff's evidentiary argument first.
In anticipation of the jury trial, Bay 101 moved to prevent plaintiff from introducing evidence or argument regarding the casino patron's subjective intent when tipping a dealer. Bay 101 argued that such evidence was irrelevant because tip pools had already been judicially declared to be legal regardless of tipper intent. In addition, if plaintiff were permitted to argue that the patron intends the tip to be the dealer's exclusive property, Bay 101 would have to respond with contrary evidence, thereby prolonging the trial.
Plaintiff agreed that "in the context where a tip is given to a specific employee, [section] 351 does not contemplate inquiry as to the tipper's intent" and that such intent in this case "should not be outcome determinative." Plaintiff emphasized his perceived distinction between the restaurant context, in which tips are "left for" service providers, and the casino context where tips are given directly to a dealer. If the trial court analyzed dealer tips as comparable to "`left for' tips" at restaurants, then tipper intentions would be relevant. Plaintiff repeatedly emphasized, however, that "[o]bviously, Plaintiff's position is that complex questions of this sort, do not have to be reached by the Court because the tips at issue were `given to' the Dealers directly, and the express language of [section] 351 completely trumps the need to go into the motivation of card room tippers."
The trial court agreed with both parties that such evidence was irrelevant in the circumstances presented by this case. The court relied on Leighton v. Old Heidelberg, Ltd. (1990) 219 Cal.App.3d 1062, 1069-1070 [268 Cal.Rptr. 647] (Leighton), where the Second District, Division Seven, weighed in on the issue of intent by diners in restaurants: "We dare say that the average diner has little or no idea and does not really care who benefits from the gratuity he leaves, as long as the employer does not pocket it, because he rewards for
On appeal, plaintiff maintains that section 351 unequivocally states that a tip "given to" a dealer is that dealer's property. Had the court allowed evidence of customer intent,
Plaintiff does not identify the causes of action that would have been saved if he had been able to introduce evidence of customer intent. However, his emphasis on the language of section 351, his allegation of "fraud on the tipping public," and his assertion of entitlement to restitution under the UCL indicate that it is the fifth cause of action, for unfair business practices, that he believes would have been successful had there been evidence of tipper intent.
Plaintiff fails to convince us that evidentiary error occurred. In pretrial proceedings he readily acknowledged that customer intent is irrelevant when patrons give tips directly to dealers, which is exactly the situation presented here. It makes no difference whether tips "left" in other settings, such as restaurants, are intended for just the server, for those providing direct table service,
Plaintiff's reliance on Budrow is no more helpful to his position than Chau. He offers the following text from Budrow: "Ultimately, the decision about which employees are to participate in the tip pool must be based on a reasonable assessment of the patrons' intentions. It is, in the final analysis, the patron who decides to whom the tip is to be `paid,' `given,' or `left.' It is those intentions that must be anticipated in deciding which employees are to participate in the tip pool." (Budrow v. Dave & Buster's of California, Inc., supra, 171 Cal.App.4th at p. 883.) But the context of this statement is significant. The court was addressing the argument of the plaintiff, a former cocktail server, that he should not have been required to share his tips with bartenders who did not provide direct table service to customers. The court did not require or even endorse the introduction of evidence of customer intent — indeed, it did not mention intent again in the opinion — but merely held that the asserted distinction between direct and indirect service was not expressed in or implied by the language of section 351.
Plaintiff points out that the Legislature "did not say in [section] 351" that a tip belongs to all service providers "in all service industries, no matter who a tip is given to, no matter who it was intended for." But it did not confine its lawmaking scrutiny to restaurants, either. Similarly, although the focus of the Leighton court was on the restaurant business, it did not indicate that its reasoning was inapplicable to other contexts. Plaintiff did not demonstrate below that the long-established practice of tip pooling in restaurants sets food servers apart from those who serve customers in casinos.
In addition, the Legislature made it clear that it had the public as well as employees in mind when it enacted section 351. Section 356 states: "The Legislature expressly declares that the purpose of this article is to prevent fraud upon the public in connection with the practice of tipping and declares that this article is passed for a public reason and can not be contravened by a private agreement. As a part of the social public policy of this State, this article is binding upon all departments of the State."
Absent any indication that legislative acceptance of employer-mandated tip pooling is confined to restaurants and similar establishments, we cannot see why the practice should be foreclosed in the casino setting. (Cf. Moen v. Las Vegas Internat. Hotel, Inc. (D.Nev. 1975) 402 F.Supp. 157, 160 [rejecting casino dealer's challenge to tip pooling under Nev. statute].) Moreover, the benefits to both service professionals and customers, aptly described in Leighton, can be extended beyond its restaurant context: "An established tip-pooling policy encourages employees to give the best possible service. In turn, such service can only enhance the reputation of the restaurant and increase business.... An employer must be able to exercise control over his business to ensure an equitable sharing of gratuities in order to promote peace and harmony among employees and provide good service to the public." (Leighton, supra, 219 Cal.App.3d at p. 1071; see Budrow v. Dave & Buster's of California, Inc., supra, 171 Cal.App.4th at p. 882 ["Tip pools exist to minimize friction between employees and to enable the employer to manage the potential confusion about gratuities in a way that is fair to the employees."].)
Plaintiff contends that even if he could be required to share his tips with other employees, in this case Bay 101 impermissibly included employer agents in the pool, thus enabling him to state a cause of action under the UCL for violating section 351. Section 350, subdivision (d), defines "Agent" as "every person other than the employer having the authority to hire or discharge any employee or supervise, direct, or control the acts of employees."
After hearing extensive testimony and receiving exhibits describing the duties and authority of Bay 101 employees, the trial court found that plaintiff had not met his burden to prove that any recipients of the tip pool could be deemed agents within the meaning of section 350, subdivision (d). Plaintiff challenges this finding with respect to five categories: lead floor, director of surveillance, housekeeping supervisor, services manager, and tournament director. All of these employees, plaintiff claims, were "at times" agents "under a literal application" of section 350, subdivision (d).
We further query whether plaintiff's argument is moot in any event. The amount dealers were required to drop each day was a set amount regardless of the number of recipients in the pool. If some of the recipient employees were forced to share that pooled money with management, that was a matter
In Bay 101's summary judgment motion, it argued, among other things, that plaintiff's conversion claim was defeated as a matter of law by the "undisputed" fact that dealers did not own or have the right to possess the entire amount of their tips. The trial court agreed with this assertion: "The Court finds that the tips given to dealers do not belong exclusively to the dealer who receives the tip and, therefore, the dealer does not have ownership or a right to possession of the entire tip."
On appeal, plaintiff insists that the conversion claim was viable because the elements of conversion were met. Addressing the court's reasoning, plaintiff insists that "Bay 101 exercised wrongful dominion over the personal property of dealers inconsistent with the dealers' rights to that property by taking, collecting, and receiving their property as a condition of employment where such employment conditions are illegal."
Bay 101's supporting evidence was sufficient to establish the right to adjudication of this cause of action as a matter of law. Under Code of Civil Procedure section 437c, the burden then shifted to plaintiff to show a triable issue of fact on the question of whether dealer pay fell below the legal threshold. Plaintiff attempted to meet this burden by arguing that notwithstanding the minimum wage amount reflected in his paycheck, there was a triable issue of fact as to whether the net pay he received fell below that amount. The argument was a valid one, but plaintiff failed to support his opposition by citing any evidence that the dealer drop ever exceeded the amount of the dealer's tips. Instead, plaintiff merely cited the same evidence relied on by Bay 101, which clearly showed that dealers were paid minimum wage plus the tips they received, with a deduction of only $2.50 per down. By the time plaintiff submitted his opposition, the parties had stipulated that dealers had never dropped more in the tip pool than they had received in tips;
In plaintiff's first cause of action, a common count for money had and received, he alleged that at Bay 101's "request and special instance," the class members had expended $7 million or more in tip money which was "their own, individual property pursuant to the common law of gifted property." Dealers, unaware that the tip pool was "unlawful," gave this money to Bay 101 "under duress and as a result of [Bay 101's] exercise of undue influence" in that Bay 101 made compliance a condition of their employment.
In granting Bay 101's nonsuit motion on this claim, the trial court ruled that plaintiff's evidence was "insufficient to establish that the money dropped by the dealers into the tip pool was their money which, in equity and good
In reviewing the trial court's ruling we independently view the evidence most favorably to plaintiff "`resolving all presumptions, inferences and doubts in [his] favor.'" (Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 839 [206 Cal.Rptr. 136, 686 P.2d 656].) We will uphold the judgment for respondent only if there is no substantial evidence to support a judgment for appellant. (Edwards v. Centex Real Estate Corp. (1997) 53 Cal.App.4th 15, 28 [61 Cal.Rptr.2d 518].) "`Although a judgment of nonsuit must not be reversed if plaintiff's proof raises nothing more than speculation, suspicion, or conjecture, reversal is warranted if there is "some substance to plaintiff's evidence upon which reasonable minds could differ...."' (Carson [v. Facilities Development Co., supra, 36 Cal.3d] at p. 839.) In other words, `[i]f there is substantial evidence to support [the plaintiff's] claim, and if the state of the law also supports that claim, we must reverse the judgment.' [Citation.]" (Wolf v. Walt Disney Pictures & Television (2008) 162 Cal.App.4th 1107, 1124-1125 [76 Cal.Rptr.3d 585]; see Burlesci v. Petersen, supra, 68 Cal.App.4th at pp. 1065-1066.)
Plaintiff insists that there was no evidence that any of the tips at issue were intended for the employees who received the money in the tip pool. He believes that it was "clearly wrong for the Court to take this cause of action away from the jury," because the jury "could have, in these circumstances, decided that in `equity and good conscience', Bay 101 should pay the money it obtained from Dealers back to them."
Plaintiff's position again rests on an erroneous premise. It is not the customers' intent that is relevant here, but the intent of the dealers in contributing to the tip pool. According to the testimony of plaintiff and other members of the class who testified, each dealer dropped the required amount not only with the understanding of its purpose but with the intention that this money be used for the benefit of the nondealer employees in the recipient categories.
The judgment is affirmed.
Rushing, P. J., and Premo, J., concurred.