Hernandez v. Princess Windows CA2/2 ( 2021 )

Filed 6/1/21 Hernandez v. Princess Windows CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
ENCARNACION HERNANDEZ, B302750
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC674792)
v.
PRINCESS WINDOWS, LLC et al.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of
Los Angeles County. Elaine Lu, Judge. Affirmed.
Karlin & Karlin, Marc A. Karlin for Defendants and
Appellants.
Employee Justice Legal Group, Kaveh S. Elihu and
Samuel J. Moorhead for Plaintiff and Respondent.
______________________________
Plaintiff and respondent Encarnacion Hernandez brought
this wage and hour action against his employer, defendant and
appellant Princess Windows, LLC, and its owners, defendants
and appellants Rosalba Barragan (Barragan) and Romueldo
Guerrero (Guerrero). After hearing the evidence at trial, the trial
court entered judgment in favor of plaintiff. Defendants appeal,
alleging that the trial court should not have (1) granted plaintiff’s
claim for rest break penalties, (2) held Barragan and Guerrero
individually liable under Labor Code section 558.1 (section
558.1), and (3) awarded plaintiff as much in attorney fees as it
did.
We affirm.
FACTUAL BACKGROUND
Plaintiff worked for defendants in exchange for a weekly
salary of $550 between September 6, 2013, and September 6,
2016. During that time period, he worked six days per week, over
51 hours in total (not including breaks).
Defendants kept no records of any kind relating to
plaintiff’s employment.
PROCEDURAL BACKGROUND
On September 6, 2017, plaintiff filed the instant action
against defendants, alleging nine causes of action all arising out
of defendants’ failure to pay minimum wages and overtime and to
provide rest breaks and itemized wage statements.
The matter proceeded to a bench trial on April 29, 2019. As
is relevant to the issues raised in this appeal, the only disputed
issue was the number and length of breaks that defendants
2
provided to plaintiff.1 Plaintiff testified that he received an
unpaid 30-minute lunch break per day and no other breaks.
Guerrero testified that plaintiff received an hour lunch break and
two 10-minute rest breaks per day.
After hearing the evidence, the trial court found plaintiff’s
testimony credible and Guerrero’s testimony not credible. It
ruled in favor of plaintiff on all counts.
Judgment was entered in the amount of $58,861, plus
prejudgment interest. This total includes $12,870 in rest break
penalties.
Defendants’ timely appeal ensued.
Thereafter, according to the parties’ briefs, plaintiff moved
for attorney fees and costs, and on July 7, 2020, the trial court
awarded plaintiff $75,105 in attorney fees and costs in the
amount of $4,940.26. Defendants did not file any notice of appeal
as to the trial court’s award of attorney fees.
DISCUSSION
“‘A judgment or order of the lower court is presumed
correct. All intendments and presumptions are indulged to
1
Also contested at trial was plaintiff’s claim that defendants
failed to pay him minimum and overtime wages. After the
presentation of the evidence, the trial court asked the parties to
submit posttrial briefs on this issue. Defendants apparently filed
such a brief, but it is not part of the appellate record. In his
respondent’s brief, plaintiff contends that defendants’ posttrial
brief did not address the question of whether plaintiff presented
sufficient evidence to hold these two individuals liable under
section 558.1.
3
support it on matters as to which the record is silent, and error
must be affirmatively shown. This is not only a general principle
of appellate practice but an ingredient of the constitutional
doctrine of reversible error.’” (Denham v. Superior Court (1970) 2
Cal.3d 557, 564.) Thus, “a party challenging a judgment has the
burden of showing reversible error by an adequate record.”
(Ballard v. Uribe (1986) 41 Cal.3d 564, 574.) “Failure to provide
an adequate record on an issue requires that the issue be
resolved against [the appellant]. [Citation.]” (Hernandez v.
California Hospital Medical Center (2000) 78 Cal.App.4th 498,
502; Christie v. Kimball (2012) 202 Cal.App.4th 1407, 1412 [error
cannot be presumed from an incomplete record].)
Defendants have not met their burden here. The clerk’s
transcript is limited to the case summary, statement of decision,
plaintiff’s complaint, the judgment, and the notices of appeal. In
other words, defendants have not overcome the presumption of
correctness of the trial court’s judgment because they have not
presented an adequate record. (Brown v. Boren (1999) 74
Cal.App.4th 1303, 1320–1321.)
With this in mind, in an effort to resolve the issues raised,
we turn to the merits of defendants’ arguments as best as
possible.
I. Standards of review
In reviewing a trial court’s decision following a bench trial,
we review questions of law de novo and apply a substantial
evidence standard to the trial court’s factual findings.
(Thompson v. Asimos (2016) 6 Cal.App.5th 970, 981.) “Under this
deferential standard of review, findings of fact are liberally
construed to support the judgment and we consider the evidence
in the light most favorable to the prevailing party, drawing all
4
reasonable inferences in support of the findings. [Citation.]”
(Thompson v. Asimos, supra, at p. 981.) A single witness’s
testimony may constitute substantial evidence to support a
finding, and we do not reevaluate any witness’s credibility.
(Ibid.) Further, “[u]nder the doctrine of implied findings, the
reviewing court must infer, following a bench trial, that the trial
court impliedly made every factual finding necessary to support
its decision.” (Fladeboe v. American Isuzu Motors Inc. (2007) 150
Cal.App.4th 42, 48.)
II. Analysis
The trial court’s judgment in favor of plaintiff is amply
supported by the evidence. State law obligates employers to
provide employees with meal periods, breaks, and rest periods.
(Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th
1004, 1018, 1028.) Here, plaintiff testified that he was not
provided with the mandated rest breaks. His testimony supports
the trial court’s judgment.
Urging us to reverse, defendants raise three arguments,
each of which we reject in turn.
First, defendants assert that the trial court’s finding that
they failed to provide plaintiff with statutory rest breaks is
unfounded and therefore the rest break penalties should be
reversed. In support, they contend that (1) plaintiff only offered
his own uncorroborated testimony, and (2) Guerrero testified that
plaintiff did receive breaks. Defendants are asking us to reweigh
the evidence, something we cannot, and will not, do. (Escamilla
v. Department of Corrections & Rehabilitation (2006) 141
Cal.App.4th 498, 514–515.)
Second, defendants argue that the trial court erred in
holding Barragan and Guerrero personally liable under section
5
558.1. Even though they were given the opportunity to brief this
issue in the trial court, there is no evidence in the appellate
record that they raised this argument below. Thus, it has been
forfeited on appeal. (Twenty-Nine Palms Enterprises Corp. v.
Bardos (2012) 210 Cal.App.4th 1435, 1450.)
Setting this procedural obstacle aside, defendants’
argument is not well-taken. Section 558.1 provides, in relevant
part: “(a) Any employer or other person acting on behalf of an
employer, who violates, or causes to be violated, any provision
regulating minimum wages or hours and days of work in any
order of the Industrial Welfare Commission, or violates, or causes
to be violated, Sections 203, 226, 226.7, 1193.6, 1194, or 2802,
may be held liable as the employer for such violation.”
Subdivision (b) defines “the term ‘other person acting on behalf of
an employer’” to include “a natural person who is an owner . . . ,
of the employer.” (§ 558.1, subd. (b).)
Ample evidence supports the trial court’s finding that
Barragan and Guerrero violated section 558.1. There was
testimony that they were the owners of Princess Windows. And
plaintiff testified that Barragan and Guerrero were the ones who
set his compensation. Even though plaintiff complained about
his compensation, they refused to change it. Based upon this
evidence, the trial court properly determined that Barragan and
Guerrero are personally liable to plaintiff as persons who caused
the employer to violate the specified statutes under section 558.1.
Third, defendants challenge the trial court’s award of
attorney fees and costs. Because defendants failed to file a
proper notice of appeal from this postjudgment order, we lack
jurisdiction to review it. (Torres v. City of San Diego (2007) 154
Cal.App.4th 214, 222.)
6
Even if we could review the order, defendants did not
provide us with an adequate record to do so. (Cal. Rules of Court,
rule 8.204(a)(1)(C) & (a)(2)(C); Brown v. Boren, supra, 74
Cal.App.4th at pp. 1320–1321; Yield Dynamics, Inc. v. TEA
Systems Corp. (2007) 154 Cal.App.4th 547, 557 [“The appellant
must present an adequate argument including citations to
. . . relevant portions of the record”].) “Appellate review is
generally limited to matters contained in the record. Factual
matters that are not part of the appellate record will not be
considered on appeal and such matters should not be referred to
in the briefs. [Citations.]” (Lona v. Citibank, N.A. (2011) 202
Cal.App.4th 89, 102.) Neither the parties’ briefs on this issue nor
the order awarding plaintiff attorney fees and costs is part of the
appellate record. And, we previously denied defendants’ motion
to augment the record. Thus, we need not address this
contention.
DISPOSITION
The judgment is affirmed. Plaintiff is entitled to costs on
appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, J.
ASHMANN-GERST
We concur:
________________________, P. J. _____________________, J.
LUI CHAVEZ
7