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.
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
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, subds. 11(A), 12(A)). The complaint's first and second causes of action asserted that respondent 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 page 1026, 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
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 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, fn. & italics 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).
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.
Wage Order 1-2001, which is applicable to the manufacturing industry, contains provisions regulating working hours, minimum wages, and other matters, including meal and rest breaks.
In Brinker, our Supreme Court examined the timing of meal and rest breaks under IWC wage order No. 5-2001 (Wage Order 5-2001) (Cal. Code Regs., tit. 8, § 11050), which is applicable to the public housekeeping industry, and contains provisions regarding rest breaks identical to those found in Wage Order 1-2001. (Brinker, supra, 53 Cal.4th at p. 1018 & fn. 1.) There, several restaurant employees sought class certification of their claims under that wage order for inadequate and mistimed meal and rest breaks. (Id. at pp. 1017-1021.) As the rulings before the Supreme Court concerned class certification, the court confined its determinations regarding the wage order's provisions to those necessary to assess whether class certification was proper. (Id. at pp. 1025-1026, 1028.)
In order to decide whether the employees had offered a theory of liability regarding rest breaks suitable for class certification, the court examined two aspects of the duty to provide rest breaks imposed under the wage order. (Brinker, supra, 53 Cal.4th at pp. 1028-1032.) Regarding the rate at which rest time must be permitted, the court concluded that the second sentence of section 12(A) of Wage Order 5-2001 defines the requisite amount of rest time "as the number of hours worked divided by four, rounded down if the fractional part is half or less than half and up if it is more ..., times 10 minutes." (Brinker, supra, at p. 1029.)
The court also addressed the timing of rest breaks to the extent necessary to resolve the plaintiffs' contention that employers were required to provide a rest period before any meal break. (Brinker, supra, 53 Cal.4th at pp. 1030-1032.) The court rejected that contention, noting that the only constraint in section 12(A) of Wage Order 5-2001 was that "rest breaks must
The court illustrated the contention's defect by reference to a hypothetical employee working a six-hour shift, who ordinarily would be entitled to a meal period and a single rest period: "Either the rest period must fall before the meal period or it must fall after. Neither text nor logic dictates an order for these, nor does anything in the policies underlying the wage and hour laws compel the conclusion that a rest break at the two-hour mark and a meal break at the four-hour mark of such a shift is lawful, while the reverse, a meal break at the two-hour mark and a rest break at the four-hour mark, is per se illegal." (Brinker, supra, 53 Cal.4th at p. 1031, fn. omitted.)
In rejecting the employees' contention, the court discussed a DLSE opinion letter interpreting IWC wage order No. 16-2001 (Wage Order 16-2001) (Cal. Code Regs., tit. 8, § 11160), which applies to certain on-site occupations in the construction, drilling, logging, and mining industries.
In Brinker, the Supreme Court focused on the DLSE's opinion concerning the first hypothetical (the eight-hour shift involving two discrete rest breaks prior to the meal break), which relied on language commonly found in the meal break provisions of IWC wage orders, including Wage Order 5-2001. (Brinker, supra, 53 Cal.4th at p. 1031.) The court stated: "We have no reason to disagree with the DLSE's view regarding the scenario it considered, but that view does not establish universally the proposition that an employee's first rest break must always come sometime before his or her first meal break. Rather, in the context of an eight-hour shift, `[a]s a general matter,' one rest break should fall on either side of the meal break. [Citation.] Shorter or longer shifts and other factors that render such scheduling impracticable may alter this general rule." (Id. at p. 1032.)
We next examine the parties' showings, with special attention to the evidence bearing on the issues raised on appeal.
In seeking summary adjudication on appellant's meal break claim, E.M.E. maintained that appellant admitted in his deposition that no one had ever prevented him from taking 20-minute rest breaks and 30-minute meal breaks, as scheduled by E.M.E. Furthermore, relying on Brinker, E.M.E. contended its provision of a "combined" 20-minute rest break complied with section 12(A) of Wage Order 1-2001. E.M.E. argued that its shift schedules incorporated the requisite amount of rest time — namely, 20 minutes — and that no statute or provision of the wage order barred a single combined rest period. E.M.E. also argued that practical considerations rendered infeasible the schedule set forth in section 12(A). To establish those considerations, E.M.E. relied on declarations from Randall Turnbow, Wesley Turnbow, and nine E.M.E. employees.
According to Randall Turnbow, E.M.E.'s founder and chairman, E.M.E.'s work schedules had incorporated the combined 20-minute rest break for over 30 years, as it benefitted the company and its employees. The combined break arose from an informal agreement between management and employees, who preferred a 20-minute rest break in the morning because it "provide[d] them with sufficient time to cook and eat their main meal of the day, which they took in the morning." The combined break also increased productivity, especially in the paint and processing line departments. Randall Turnbow
Wesley Turnbow, E.M.E.'s chief executive officer, affirmed that the combined rest break allowed employees working on the first shift — E.M.E.'s largest shift — to prepare their morning meal or purchase it from a food truck that arrived in the morning. He stated: "From my conversations with employees, I know that they prefer to have the combined break for this purpose." Wesley Turnbow also maintained that the combined break increased productivity for the reasons set forth by Randall Turnbow.
Of the nine employees whose declarations were submitted, eight were assigned to a shift that began in the morning.
Pointing to Brinker's discussion of the DLSE opinion letter addressing the timing of rest breaks, appellant contended that E.M.E.'s evidence — if credited — failed to demonstrate the exceptional circumstances required to justify the placement of both rest breaks before the meal break (Brinker, supra, 53 Cal.4th at p. 1032). Furthermore, in an effort to raise triable issues regarding the amount of time workers needed before and after breaks, appellant relied on testimony from his deposition, during which he asserted that painters required little preparation for a break. He also submitted his own declaration, stating that while he worked as a painter on the first shift, "[w]hen it was time for a meal or rest break, [he] and the other painters would unplug the air
Aside from submitting the evidence described above, appellant vigorously challenged the credibility of the declarations submitted by E.M.E., arguing that the employee declarations "were procured under coercive circumstances" and that Wesley Turnbow's declaration offered a reason for the combined rest breaks not reflected in his deposition, namely, that workers required 10 minutes to prepare for a break and 10 minutes to resume production after a break.
The first sentence of section 12(A) of Wage Order 1-2001, by its plain language, specifies that rest periods should fall in the middle of work periods,
We find guidance regarding the meaning of the phrase "insofar as practicable," as it appears in section 12(A) of Wage Order 1-2001, from Morris v. Williams (1967) 67 Cal.2d 733, 742 [63 Cal.Rptr. 689, 433 P.2d 697]. There, our Supreme Court examined Welfare and Institutions Code former section 14103.7, which directed the Administrator of the Health and Welfare Agency to make proportionate reductions in the Medi-Cal program (Welf. & Inst. Code, § 14000 et seq.) "`to the extent feasible.'" (Morris, supra, 67 Cal.2d at pp. 757-758.) The court determined that the phrase "`to the extent feasible,'" as found in that statute, obliged the administrator to make proportionate reductions absent an adequate justification why they were not feasible. (Ibid.) Here, the term "insofar as" in the phrase "insofar as practicable" is equivalent to "to the extent," notwithstanding any differences of meaning between the terms "practicable" and "feasible." Accordingly, in the context of section 12(A) of Wage Order 1-2001 the phrase "insofar as practicable" directs employers to implement the specified rest break schedule absent an adequate justification why such a schedule is not capable of being put into practice, or is not feasible as a practical schedule. As observed in Brinker, under section 12(A) of Wage Order 5-2001, employers are obliged "to make a good faith effort" to implement the "preferred" schedule, "but may deviate from [it] ... where practical considerations render it infeasible." (Brinker, supra, 53 Cal.4th at p. 1031.)
These determinations receive additional support from section 17 of Wage Order 1-2001, which authorizes the DLSE, upon proper application, to exempt employers from certain provisions of the wage order, including section 12. Section 17 states: "If, in the opinion of the [DLSE] after due investigation, it is found that the enforcement of any provision contained in ... [s]ection 12, Rest Periods ..., would not materially affect the welfare or comfort of employees and would work an undue hardship on the employer, exemption may be made at the discretion of the [DLSE]." Although this provision addresses the considerations governing an exemption from the DLSE regarding section 12, it establishes that the protection of employee welfare and the existence of a burden on the employer are critical to departures from the preferred schedule.
Our conclusions thus comport with Brinker and its discussion of the DLSE opinion letter regarding the timing of rest breaks. As noted above (see pt. B. of the Discussion, ante), the opinion letter stated a rest break schedule similar to that implemented by E.M.E. would be permissible only in unusual or exceptional circumstances. Our Supreme Court found no reason to disagree, but held that such departures from the preferred schedule were not conclusively proscribed. (Brinker, supra, 53 Cal.4th at p. 1032.)
We turn to whether E.M.E. established its entitlement to summary adjudication with respect to the rest break claim. In order to do so, E.M.E. was obliged to demonstrate the absence of triable issues regarding its departure from the preferred rest break schedule set forth in Wage Order 1-2001, that is, that there were no triable issues concerning the existence of considerations adequate to justify that departure. As explained below, E.M.E.'s evidence was sufficient to shift the burden on summary adjudication to appellant, whose responsive showing raised triable issues regarding E.M.E.'s proffered considerations.
In an effort to secure summary adjudication, E.M.E. offered evidence that its combined rest break is not detrimental to its employees. Randall and Wesley Turnbow stated that the combined rest break arose 30 years ago through an informal employer-employee agreement, and remained popular
E.M.E. also offered evidence that implementing the preferred schedule would unduly burden its production processes, and that its combined rest break was tailored to alleviate that burden. Randall and Wesley Turnbow stated that due to the nature of those processes, workers ordinarily required 10 minutes to prepare for a rest break and an additional 10 minutes to resume their activities after a break. The combined rest break thus eliminated the loss of approximately 20 minutes in work time.
In our view, E.M.E.'s showing in support of its rest break schedules, if fully credited, would suffice to support its departure from the preferred schedule. Under that showing, E.M.E.'s schedules are not detrimental to its employees. Although E.M.E. purported to show that the schedules affirmatively benefit employees by allowing them to eat their main meal in the morning and enjoy a longer rest, its showing ascribed those benefits solely to the rest break schedule relating to the first shift. Nonetheless, E.M.E.'s evidence raises the reasonable inference that the rest break schedules are not harmful to its employees on either shift, who generally accept the pertinent schedule with no apparent dissent. Furthermore, under E.M.E.'s showing, its schedules enable it to avoid material economic losses attributable to its particular production activities. Accordingly, E.M.E. shifted the burden on summary adjudication to appellant to raise a triable issue of fact.
In opposition to summary adjudication, appellant offered no evidence directly suggesting that the schedules are detrimental to employees. Rather, his evidence targeted E.M.E.'s contention that implementing the schedule set forth in section 12(A) of Wage Order 1-2001 would impose a burden on E.M.E. Appellant's declaration maintained, on the basis of his experience as a painter and a supervisor, that no material amount of production time is consumed before and after rest breaks. According to appellant, with the exception of one or two workers, employees lost little or no work time in taking breaks.
E.M.E. and amici curiae contend that the trial court, in granting summary adjudication, correctly concluded that E.M.E.'s rest break schedules, in fact, implement the preferred schedule set forth in the wage order, thus rendering it unnecessary for E.M.E. to justify a departure from the preferred schedule.
In Brinker, the Supreme Court discussed the meaning of "work period" in examining the employer's duty to provide meal breaks under section 11(A) of Wage Order 5-2001. (Brinker, supra, 53 Cal.4th at pp. 1041-1049.) The section states: "No employer shall employ any person for a work period of more than five (5) hours without a meal period of not less than 30 minutes, except that when a work period of not more than six (6) hours will complete the day's work the meal period may be waived by mutual consent of the employer and employee." The court determined that under section 11(A) of Wage Order 5-2001, absent a waiver, "an employer's obligation is to provide a first meal period after no more than five hours of work and a second meal period after no more than 10 hours of work." (Brinker, supra, at p. 1049.) In
As the second sentence of section 12(A) of Wage Order 1-2001 specifies the rate at which rest time accrues without using the term "work period," our focus is on the first sentence. There, the term "work period" cannot reasonably be understood to mean the entire length of an employee's shift — for example, an eight-hour shift — as that interpretation would oblige employers to schedule "rest periods" in the middle of the shift, that is, at the four-hour mark. The sentence thus presupposes that the employee's shift already has been divided into "work periods." Because the sentence sets forth the preferred timing of rest breaks, the pre-existing "work periods" must be established by meal breaks. For that reason, in an eight-hour shift with a single meal break, the preferred schedule requires the provision of a rest break in the middle of each "work period" before and after the meal break. As noted above (see pt. B. of the Discussion, ante), our Supreme Court in Brinker so interpreted section 12, stating: "[I]n the context of an eight-hour shift, `[a]s a general matter,' one rest break should fall on either side of the meal break. [Citation.] Shorter or longer shifts and other factors that render such scheduling impracticable may alter this general rule." (Brinker, supra, 53 Cal.4th at p. 1032.) Those remarks "carr[y] persuasive weight and should be followed," as they reflect a considered discussion of the issue. (Smith v. County of Los Angeles (1989) 214 Cal.App.3d 266, 297 [262 Cal.Rptr. 754].)
In a related contention, E.M.E. and amici curiae maintain that Wage Order 1-2001 permits combined rest breaks.
Finally, E.M.E. contends appellant's declaration failed to raise a triable issue because it is inadmissible.
Under the summary judgment statute, objections to declarations are generally forfeited when not asserted before the trial court. (Code Civ. Proc., § 437c, subd. (d).)
Because summary adjudication was improperly granted with respect to appellant's rest break claim (the second cause of action), it was also improperly granted with respect to the "derivative" claims (the third through seventh causes of action). The grant of summary judgment must therefore be reversed, insofar as it relates to those claims.
The judgment is affirmed with respect to appellant's first cause of action, and reversed as to the remaining causes of action. The matter is remanded for further proceedings in accordance with this opinion. Appellant is awarded his costs on appeal.
Epstein, P. J., and Willhite, J., concurred.
