NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

MILLER, Acting P. J.

Plaintiff and appellant Sarah McKinney (Employee) sued defendants and respondents Primary Care Medical Group of Inland Empire, Inc. (Medical Group) and Sunil Arora, M.D. (Arora) for (1) discrimination; (2) violation of the California Family Rights Act; (3) retaliation; (4) wrongful termination; (5) failure to pay overtime wages; (6) failure to pay wages within the applicable time limits; (7) failure to provide itemized wage statements; and (8) failure to maintain records.

Following a bench trial, the trial court found in favor of Medical Group and Arora (collectively, Employer). Employee contends the trial court erred by (1) offsetting unpaid overtime wages with money that Employee received from Employer; (2) failing to award interest on unpaid overtime wages; (3) not awarding statutory penalties; and (4) deducting Employee's excess break time from Employee's overtime wages. We affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

Arora is the owner of Medical Group. Employee began working for Employer in March 2008. Employee performed billing tasks for Employer. Employee's typical schedule was Monday through Friday from 8:30 a.m. to 5:30 p.m. On June 14, 2010, Employer terminated Employee's employment.

On June 14, Employer gave Employee $710.03 for her wages earned through the end of her regular hours worked on June 14. The $710.03 check did not include all the hours Employee worked on June 14 because Employee stayed at work until approximately 6:00 p.m.—after her regular 5:30 p.m. leaving time—so another check was cut on June 15.

On June 15, Employer gave Employee a second check for $1,208.73.1 The second check amounted to wages for 80 hours. The purpose of the second check "was to pay any amount that was owed to [Employee]." Arora estimated 80 hours of wages "would be a lot more than any amount that [Employer] may have underpaid in error," and thus the remainder would "be severance." Arora did not tell Employee the purpose of the second check.

Employee's complaint was filed on June 13, 2011.2 The trial court applied a three-year statute of limitations, permitting claims dating back to June 2008. The trial court found Employee claimed $1,042.88 in unpaid overtime wages dating back to June 2008. The trial court deducted excess break time Employee took from the overtime wages, reducing the amount of overtime owed to $570.49. The trial court concluded no damages were due to Employee because the second check for $1,208.73 compensated Employee for the $570.49 worth of overtime she worked.

DISCUSSION

A. STATEMENT OF DECISION

At the outset we interpret the trial court's statement of decision. We do this for the sake of simplifying our discussion post. In the trial court's statement of decision, it did not make an explicit finding concerning the purpose of the second check. For example, the trial court did not write, "The second check was for unpaid wages," or "The second check was a bonus." In order to address the issues raised by Employee, we must examine the trial court's statement of decision for any implied findings concerning the purpose of the second check.

"[A] judgment will not be set aside on appeal because of a failure to make an express finding upon an issue if a finding thereon, consistent with the judgment, results by necessary implication from the express findings which are made." (Richter v. Walker (1951) 36 Cal.2d 634, 640.) When we interpret findings, if the findings are capable of two reasonable constructions, then we must use the interpretation which sustains the judgment. (Id. at p. 639; E.W. McLellan Co. v. East San Mateo Land Co. (1913) 166 Cal. 736, 738.)

In the statement of decision, the trial court concluded the second check "would more than compensate [Employee] for overtime ($570.49) worked. Therefore there is no overtime due [Employee]." The trial court's conclusion implies that Employee was adequately paid for her overtime via the second check, thus reflecting a finding that the second check constituted unpaid wages.

The trial court also wrote, "Therefore, in totality, there is no additional wage/vacation or overtime due [Employee]." (Italics added.) This statement reflects a finding that the second check constituted wages, such that an additional check for wages would be unnecessary.

In sum, we read the statement of decision as setting forth an implied finding that the second check consisted of compensation for any previously unpaid wages. Such an implication is supported by the evidence that the second check was given to Employee "to pay any amount that was owed to [Employee]."

B. OFFSETTING

Employee asserts the second check was a bonus payment, and the trial court erred by using her bonus to offset the amount of overtime wages due to her.

Employee's argument is not connected to the trial court's finding. The trial court did not find that the second check was a bonus payment. Rather, the trial court impliedly found that the second check was for unpaid wages, as discussed ante. Employee's assertion of error is based upon the premise that the trial court found the second check to be a bonus payment. Because Employee's premise is incorrect, her argument fails. We cannot engage in a purely academic discussion of whether overtime wages can be offset by a bonus. Such a discussion would be purely academic because, based upon the trial court's findings, the second check was not a bonus payment. Therefore, any discussion about offsetting overtime wages with a bonus payment is not applicable to the facts of this case. In sum, the issue Employee raises concerning offsetting overtime wages with bonus money is a purely abstract and hypothetical issue not related to the facts of this case. (Consumer Cause, Inc. v. Johnson & Johnson (2005) 132 Cal.App.4th 1175, 1183 [court cannot issue an advisory opinion based upon hypothetical facts].)

In Employee's appellant's reply brief, Employee argues the second check could not have constituted a check for unpaid wages and makes an evidentiary argument. Employee did not raise a substantial evidence argument in her appellant's opening brief.3 To the extent Employee intended to raise such an argument, we would be required to look at the evidence in the light most favorable to the judgment. (Jessup Farms v. Baldwin (1983) 33 Cal.3d 639, 660.)

The evidence reflects the amount of the second check was tied to Employee's wages, i.e., 80 hours of pay; and Employer's stated purpose in tendering the second check was to "to pay any amount that was owed to [Employee]." Arora estimated 80 hours of wages "would be a lot more than any amount that [Employer] may have underpaid in error," and thus the remainder would "be severance." This evidence supports the trial court's implied finding that the second check was compensation for any unpaid wages owed to Employee. Thus, to the extent Employee intended to assert the trial court's finding is not supported by substantial evidence, we find the contention to be unpersuasive.

C. INTEREST

Employee contends the trial court erred by failing to award interest on the unpaid overtime wages.

Employee does not challenge the trial court's findings. Therefore, the facts of the case are undisputed. (Saffie v. Schmeling (2014) 224 Cal.App.4th 563, 569 [dispositive facts not challenged on appeal are undisputed].) Because we are interpreting a statute and applying undisputed facts, we use the de novo standard of review. (Harustak v. Wilkins (2000) 84 Cal.App.4th 208, 212.)

"In interpreting a statute where the language is clear, courts must follow its plain meaning." (Torres v. Parkhouse Tire Service, Inc. (2001) 26 Cal.4th 995, 1003.) Labor Code section 218.6 provides, "In any action brought for the nonpayment of wages, the court shall award interest on all due and unpaid wages . . ., which shall accrue from the date that the wages were due and payable."

In the first portion of the statute, the Legislature requires interest to be awarded "on all due and unpaid wages." In the second portion of the statute, the Legislature uses the past tense, i.e., "wages were due and payable." Because the past tense is not used in the first portion of the statute, we understand it as being written in the present tense, e.g., on all wages that are due and unpaid.

The trial court found the second check was for any unpaid wages and found the second check compensated Employee for her past overtime work. Thus, based upon the trial court's findings, there were no "due and unpaid wages" at the time of trial. Because all wages had already been paid at the time of trial, there was no basis for the trial court to award interest. We conclude the trial court did not err by not awarding interest.

D. PENALTIES

Employee contends the trial court erred by not awarding statutory penalties for Employer's failure to pay overtime wages because the trial court incorrectly applied a one-year statute of limitations.

When an employee is discharged, if an employer willfully does not pay the employee his/her wages, then the employer shall be penalized. (Labor Code, § 203, subd. (a).)

The trial court concluded, "[S]tatutory penalties are also denied as either time barred and/or inadvertent and unintentional." Employee does not challenge the trial court's finding that Employer's failure to timely pay wages was inadvertent. Because there is an alternative basis supporting the trial court's decision to not award statutory penalties, and that alternative basis is unchallenged, we conclude the trial court did not err. (See ASP Properties Group v. Fard, Inc. (2005) 133 Cal.App.4th 1257, 1268 [judgment may be affirmed upon any correct basis presented in the record].)

Employee's concern regarding application of a one-year statute of limitations is moot because we can provide no relief on this issue due to there being a proper and unchallenged basis for affirmance. (See LaChance v. Valverde (2012) 207 Cal.App.4th 779, 783 [issue is moot when the reviewing court cannot provide the appellant with practical relief].)

In Employee's appellant's reply brief, Employee argues Employer is wrong in asserting Employer's actions were inadvertent. Employee explains why the evidence supports a finding that Employer acted willfully. To the extent Employee intended to argue substantial evidence does not support the trial court's finding that Employer acted inadvertently, Employee forfeited the argument by failing to raise it in her appellant's opening brief. (Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal.App.4th 847, 894, fn. 10.)

E. EXCESS BREAK PERIODS

Employee contends the trial court erred by deducting her excess break time from her overtime. For example, if Employee exceeded her 10-minute break period by taking a 15-minute break, the trial court deducted five minutes from the alleged amount of overtime. Employee asserts the trial court should not have deducted the excess five minutes from her overtime.

Every employer must allow employees to take a 10-minute break for every four-hour work period. (Cal. Code Regs., tit. 8, § 11040, subd. (12)(A).) "Eight (8) hours of labor constitutes a day's work. Employment beyond eight (8) hours in any workday . . . is permissible provided the employee is compensated for such overtime." (Cal. Code Regs., tit. 8, § 11040, subd. (3)(A)(1); see also Labor Code, § 510, subd. (a).)

Employee does not challenge the trial court's findings. Therefore, the facts of the case are undisputed. (Saffie v. Schmeling, supra, 224 Cal.App.4th at p. 569 [dispositive facts not challenged on appeal are undisputed].) Because we are applying undisputed facts, we use the de novo standard of review. (Harustak v. Wilkins, supra, 84 Cal.App.4th at p. 212.)

The trial court found Employee took breaks that exceeded the 10-minute allotted break period. As a result, the eight hours of labor required to trigger the overtime law was not complete until Employee compensated for the excess break time she took. For example, Employee's regular quitting time was 5:30 p.m.; if Employee took a 15-minute break, then she needed to work until 5:35 p.m. so as to work eight hours, thereby triggering the overtime law. The trial court did not err by deducting Employee's excess break time because Employee needed to work eight hours in order to trigger the overtime law. (8 Cal. Code Reg. § 11040(3)(A)(1); see also Labor Code, § 510, subd. (a).)

Employee asserts courts would be harmed if the law required courts to look at each day an employee worked, calculate the rest breaks, and subtract the amount of excessive break time from the overtime owed. Employee does not explain why these calculations would be difficult for a trial court. We infer Employee believes such a task would be time consuming. Trials are often time consuming, therefore, we are unpersuaded by Employee's assertion. (Coachella Valley Water Dist. V. Western Allied Properties, Inc. (1987) 190 Cal.App.3d 969, 976 ["trials are sometimes inordinately long and the testimony extremely technical, even boring"].)

Employee asserts the trial court erred in calculating the excess break time because the trial court improperly accounted for the time it took Employee to reach the break area. For example, according to Employee, if it took Employee one minute to walk to the breakroom, then she took a 10-minute break, and then she took one minute to walk back to her desk, the trial court counted that as a 12-minute break. Employee asserts the trial court should have counted the "net" break time, as opposed to the "gross" break time.

Employee provides no record citations to support her assertion that the trial court calculated the break time in the manner she alleges. (Cal. Rule of Court, rule 8.204(a)(1)(C).) Due to Employee's failure to explain where, in the record, the trial court performed such calculations, we find Employee's argument to be unpersuasive. (See Supervalu, Inc. v. Wexford Underwriting Managers, Inc. (2009) 175 Cal.App.4th 64, 79 [appellate court is not required to search the record for errors].)

DISPOSITION

The judgment is affirmed. Respondents are awarded their costs on appeal.

CODRINGTON, J. and FIELDS, J., concurs.