Rodriguez v. E.M.E., Inc. ( 2016 )

Filed 4/22/16
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
B264138
JUAN RODRIGUEZ, (Los Angeles County
Super. Ct. No. BC518692)
Plaintiff and Appellant,
v.
E.M.E., INC.,
Defendant and Respondent.
APPEAL from an order of the Superior Court of Los Angeles County, John
Shepard Wiley, Judge. Affirmed in part, reversed in part, and remanded for
further proceedings.
Rastegar Law Group, Farzad Rastegar and Joshua N. Lange for Plaintiff and
Appellant.
Carlson & Jayakumar, Keith W. Carlson, Christine De Bretteville and Jamie
D. Mayorga for Defendant and Respondent.
Seyfarth Shaw, Jeffrey A. Berman 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.
________________________________________
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
(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
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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.
3
In December 2014, relying primarily on Brinker, supra, 53 Cal.4th at
p. 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 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.
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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.) “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.) 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.) 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. 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; 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
5
(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, 664, 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.) 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.)
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; Yu v.
Signet Bank/Virginia (1999) 69 Cal.App.4th 1377, 1398; Reyes v. Kosha (1998)
65 Cal.App.4th 451, 466, fn. 6.) Furthermore, as the parties do not dispute that the
complaint’s other claims (the third through seventh causes of action) are
6
“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
Wage Order No.1-2001.1 Subdivision (b) of section 226.7 provides: “An
employer shall not require an employee to work during a meal or rest or recovery
period mandated pursuant to an applicable statute, or applicable . . . order of the
[IWC].” In 1913, the Legislature created the IWC, which was authorized to
regulate the wages, hours, and working conditions of various classes of workers to
protect their health and welfare. (Industrial Welfare Com. v. Superior Court
(1980) 27 Cal.3d 690, 700-701 (Industrial Welfare Com.).) To this end, the IWC
promulgated so-called “wage orders,” which prescribe “minimum requirements
with respect to wages, hours, and working conditions” for workers in a number of
industries and occupations.2 (Id. at p. 700.) In developing the orders, the IWC
collected evidence regarding working conditions, received recommendations and
comments from affected individuals, and conducted public hearings. (See
Industrial Welfare Com., supra, 27 Cal.3d at pp. 704-705.) Although the
Legislature defunded the IWC in 2004, its orders remain in effect. (Murphy v.
Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1102, fn. 4 (Murphy).)
As a consequence, “wage and hour claims are today governed by two
1
All further statutory citations are to the Labor Code, unless otherwise
indicated.
2
The IWC was initially authorized to issue wage orders applicable only to
women and children, but its jurisdiction was eventually extended to men in 1973.
(Industrial Welfare Com., supra, 27 Cal.3d at pp. 700-701.)
7
complementary and occasionally overlapping sources of authority: the provisions
of the Labor Code, enacted by the Legislature, and a series of 18 wage orders,
adopted by the IWC.” (Brinker, supra, 53 Cal.4th at p. 1026.) Those laws and
wage orders are also subject to enforcement by a state agency, namely, the
Division of Labor Standards Enforcement (DLSE). (Brinker, supra, at pp. 1028-
1029 & fn. 11.)
Here, the propriety of summary adjudication hinges on the extent to which
Wage Order 1-2001 permits an employer to combine the rest periods required
during an 8-hour work shift and provide them before or after the meal break.
Generally, “[w]hen a wage order’s validity and application are conceded and the
question is only one of interpretation, the usual rules of statutory interpretation
apply.” (Brinker, supra, 53 Cal.4th at p. 1027.) The task of interpretation is to
determine the legislative intent, looking first to the words of the wage order,
construed in light of their ordinary meaning and statutory context. (Gonzalez v.
Downtown L.A. Motors, L.P. (2013) 215 Cal.App.4th 36, 43.) “Judicial
construction that renders any part of the wage order meaningless or inoperative
should be avoided. [Citation.]” (Id. at p. 44.) When necessary to establish the
wage order’s meaning, “a court may consider ‘“a variety of extrinsic aids,
including the ostensible objects to be achieved, the evils to be remedied, the
legislative history, public policy, contemporaneous administrative construction,
and the statutory scheme of which the statute is a part.” [Citation.]’ [Citation.]”
(Ibid., quoting Aleman v. Airtouch Cellular (2012) 209 Cal.App.4th 556, 568-
569.) In this regard, “[t]he DLSE’s opinion letters, ‘“‘“while not controlling upon
the courts by reason of their authority, do constitute a body of experience and
informed judgment to which courts and litigants may properly resort for
guidance.”’”’ [Citation.]” (Brinker, supra, 53 Cal.4th at p. 1029, fn. 11, quoting
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Seymore v. Metson Marine, Inc. (2011) 194 Cal.App.4th 361, 369, fn. 5,
disapproved on another ground in Mendiola v. CPS Security Solutions, Inc. (2015)
60 Cal.4th 833, 846.)
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.3 (Cal. Code Regs., tit. 8, § 11010.) Regarding
meal breaks, section 11(A) of the wage order states in pertinent part: “No
employer shall employ any person for a work period of more than . . . []5[] hours
without a meal period of not less than 30 minutes . . . .” Regarding rest breaks,
section 12(A) provides: “Every employer shall authorize and permit all employees
to take rest periods, which insofar as practicable shall be in the middle of each
work period. The authorized rest period time shall be based on the total hours
worked daily at the rate of ten (10) minutes net rest time per four (4) hours or
major fraction thereof.”
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.)
3
We take judicial notice of Wage Order 1-2001.
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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 fall in the middle of work periods
‘insofar as practicable.’” (Brinker, supra, at p. 1031.) The court stated:
“Employers are . . . subject to a duty to make a good faith effort to authorize and
permit rest breaks in the middle of each work period, but may deviate from that
preferred course where practical considerations render it infeasible. At the
certification stage, we have no occasion to decide, and express no opinion on,
what considerations might be legally sufficient to justify such a departure.” (Ibid.)
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
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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. 4 The opinion letter
addressed “the extent of employer flexibility” in scheduling rest breaks under that
wage order. (Dept. Industrial Relations, DLSE Opn. Letter No. 2001.09.17 (Sept.
17, 2001), at p. 1.)5 Responding to a hypothetical regarding an 8-hour shift in
which the employer provides a 10-minute rest break at the 2-hour mark, a 10-
minute rest break at the 4-hour mark, a 30-minute meal break at the 5-hour mark,
and no further breaks, the DLSE opined that such a schedule would not comport
with section 11(A) of Wage Order 16-2001, “absent truly unusual circumstances,”
as that section requires a rest break in the middle of each work period “‘insofar as
4
We take judicial notice of Wage Order 16-2001 and the related DLSE
opinion letter.
5
The DLSE noted that Wage Order 16-2001 affords employers greater
flexibility regarding rest break scheduling (DLSE Opn. Letter No. 2001.09.17,
supra, at p. 1), as the portion of the meal break provision italicized below does not
appear in other wage orders (including Wage Orders 1-2001 and 5-2001). Section
11(A) of Wage Order 16-2001 states: “Every employer shall authorize and permit
all employees to take rest periods, which insofar as practicable shall be in the
middle of each work period. Nothing in this provision shall prevent an employer
from staggering rest periods to avoid interruption in the flow of work and to
maintain continuous operations, or from scheduling rest periods to coincide with
breaks in the flow of work that occur in the course of the workday. The authorized
rest period time shall be based on the total hours worked daily at the rate of ten
(10) minutes net rest time for every four (4) hours worked, or major fraction
thereof.” (Italics added.)
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practicable.’” (DLSE Opn. Letter No. 2001.09.17, supra, at p. 4.) Furthermore,
responding to a hypothetical regarding the provision of one 20-minute combined
rest break in the morning or afternoon, the DLSE opined that such a schedule is
“never allowed under ordinary circumstances.” (Ibid.)
In Brinker, the Supreme Court focused on the DLSE’s opinion concerning
the first hypothetical (the 8-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.)
C. Underlying Proceedings
We next examine the parties’ showings, with special attention to the
evidence bearing on the issues raised on appeal.
1. E.M.E.’s Evidence
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
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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 stated: “Prior to each break, the
painters have to clean out each paint gun and paint pot and the paint lines in
between, and shut down certain equipment. Then, upon returning from the break,
the painters have to refill the paint pots and the paint guns and turn the equipment
back on. Prior to each break, the processing line employees have to finish all
parts, coordinating completion times in a process that typically requires 70
minutes, and then air dry the completed parts. These [p]ainting and [p]rocessing
[l]ine efforts take approximately 10 minutes at shutdown and 10 more minutes at
the start-up after the break. The fewer times that the shop has to prepare for this
hard stop -- which the combined break affords -- the easier it is for them to plan
the jobs, and the more efficient it is for the production lines.”
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
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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.6 Those employees stated that they
preferred the combined break in the morning because it allowed them to buy a
meal from the food truck and provided for a better rest. The employee assigned to
the second shift stated that the combined break in the evening promoted
productivity. All maintained that they were allowed brief breaks at other times,
and that they had heard no employee complaints regarding the combined break.
2. Appellant’s Showing
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
6
Some of the shift schedules described in the declarations reflect small
differences from the apparently standard first shift (from 7:30 a.m. to 4:00 p.m.)
that are not material to the issues before us.
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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 hose, take air out of [the] gun, switch off the
spray boot and lights, and drain the paint back to the gun cap if there [was] still
[some] in [the] paint gun. This process [took] approximately 20-30 seconds at
most.” Appellant further stated that as a supervisor, he “monitored workers in all
departments.” He was unaware of any machinery or “efforts” that required
“nearly” 10 minutes to turn off or shut down and 10 minutes to restart. The
workers requiring the most time to prepare for a break were the one or two
sandblasters on each shift, who needed at most 5 minutes to remove their
equipment. A few other employees required a minute or less to prepare for a
break, and most needed little or no time.
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.
D. Analysis
We conclude that the trial court erred in granting summary adjudication
with respect to the rest break claim. As explained below, under the circumstances
established here, section 12(A) of Wage Order 1-2001 obliged E.M.E. to provide a
10-minute rest break in the middle of the work periods occurring before and after
the 30-minute meal break “insofar as practicable.” The existence of triable issues
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whether the rest break schedule stated in the wage order was not practicable
precludes summary adjudication.
1. Rest Break Timing Requirement
We begin by examining the timing requirement in section 12(A) of Wage
Order 1-2001. That section, “‘the basic provisions of which date back to 1932’”
(Industrial Welfare Com., supra, 27 Cal.3d at p. 715, italics deleted), has “‘long
been viewed as part of the remedial worker protection framework’” Brinker,
supra, 53 Cal.4th at p. 1027, quoting Murphy, supra, 40 Cal.4th at p. 1105). For
that reason, it “must be interpreted in the manner that best effectuates th[e]
protective intent.” (Brinker, supra, at p. 1027.) In construing the section, we must
avoid “needless policy determinations . . . .” (Morillion v. Royal Packing Co.
(2000) 22 Cal.4th 575, 587.)
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,
“insofar as practicable.” As commonly understood, the term “insofar as” means
“[t]o the degree or extent that.” (Black’s Law Dict. (10th ed. 2014) p. 916;
Webster’s Third New Internat. Dict. Unabridged (2002) p. 1170.) Although
“practicable” is closely related to the terms “possible” and “feasible,” the term
ordinarily conveys that the thing so described is capable of being put into practice
or accomplished, or alternatively, when the thing in question is practical in nature
(for example, a method, aim, or plan), that it is feasible. (Webster’s Third New
Internat. Dict. Unabridged, supra, p. 1780 [“possible to practice or perform;
capable of being put into practice, done, or accomplished: feasible
]; Black’s Law Dict., supra, p. 1361 [“reasonably capable of being
accomplished; feasible in a particular situation ”].)
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We find guidance regarding the meaning of the phrase “‘insofar as
practical,’” as it appears in section 12(A) of Wage Order 1-2001, from Morris v.
Williams (1967) 67 Cal.2d 733, 742. There, our Supreme Court examined former
Welfare and Institutions Code 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.)
Although section 12(A) of Wage Order 5-2001, does not describe the
considerations relevant to such a justification, we conclude that a departure from
the preferred schedule is permissible only when the departure (1) will not unduly
affect employee welfare and (2) is tailored to alleviate a material burden that
would be imposed on the employer by implementing the preferred schedule. As
explained above, the wage order must be construed in a manner that promotes its
“protective intent” (Brinker, supra, 53 Cal.4th at p. 1027), namely, to safeguard
17
employee health and welfare (Industrial Welfare Com. supra, 27 Cal.3d at
pp. 700-701). Furthermore, a departure from the preferred schedule that is merely
advantageous to the employer cannot satisfy the requirement stated in section
12(A) of Wage Order 5-2001, as the existence of such an advantage does not, by
itself, show that the preferred schedule is not capable of being put into practice.
For this reason, the departure must be predicated on facts demonstrating that the
preferred schedule would impose a material burden on the employer, and that the
departure is necessary to alleviate such burden.
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.)
18
2. Grant of Summary Adjudication
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 among employees
because it gave them an opportunity to eat their main meal, which occurred in the
morning, and secure a better rest. According to the declarations from the eight
employees assigned to the morning shift, they preferred the combined rest break
for those reasons. Furthermore, all nine employees whose declarations were
submitted stated that they were allowed other breaks when necessary, and that they
had heard no employee complaints regarding the combined rest break.
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.
19
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.7
7
As noted above (see pt. C.2. of the Discussion, ante), appellant also
challenged the truth of Wesley Turnbow’s assertions regarding the time employees
required to prepare for a break and resume work thereafter. This challenge,
however, could not raise a triable issue of fact, as absent circumstances not present
here, “summary judgment may not be denied on grounds of credibility or for want
(Fn. continued on next page.)
20
We conclude that appellant’s declaration raised triable issues precluding
summary adjudication with respect to the rest break claim. Generally, “the sole
declaration of a party opposing a summary judgment motion which raises a triable
issue of fact is sufficient to deny that motion.” (Estate of Housley (1997) 56
Cal.App.4th 342, 359.) As a nonexpert witness, appellant was entitled to provide
testimony grounded in his experience and his perceptions as an E.M.E. employee
regarding workplace conditions and the temporal length of activities. (Osborn v.
Mission Ready Mix (1990) 224 Cal.App.3d 104, 111-113; 1 Witkin, Cal. Evidence
(5th ed. 2012) Opinion Evidence, § 10, p. 620.) Appellant’s declaration thus
raised triable issues whether implementing the preferred schedule would be
burdensome to E.M.E.
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.8
Relying on the discussion in Brinker regarding the provision of meal breaks,
E.M.E. and amici curiae argue that under the specification of the preferred
schedule stated in section 12(A) of Wage Order 5-2001 -- namely, that employers
must authorize “rest periods, which . . . shall be in the middle of each work
period” -- an employer is obliged only to ensure that the meal and rest breaks,
taken together, divide a work shift into approximately equal “work period[s].”
of cross-examination of witnesses furnishing affidavits or declarations in support
of the summary judgment . . . .” (Code Civ. Proc., § 437c, subd. (e).)
8
We granted a request from the California Hospital Association, Civil Justice
Association of California, The California Retailers Association, and California
Association of Health Facilities to submit a brief as amici curiae curiae.
21
They further argue that E.M.E.’s shift schedules satisfy that requirement, as the
combined rest break and meal break subdivide each shift into approximately equal
intervals of work. As explained below, we reject their interpretation of the
preferred schedule.
In Brinker, the Supreme Court discussed the meaning “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 so concluding, the court rejected a contention that
the term “‘“work period”’” necessarily means a “‘“continuing period of hours
worked.’”” Noting that the wage orders contain no definition of “‘work period,’”
the court determined that the term may encompass an interval of work broken by a
meal break, as most wage orders “refer[] to a ‘work period of more than . . . 10 . . .
hours per day’ before a second meal period.” (Brinker, supra, at pp. 1048-1049,
italics added.)
In view of Brinker, the term “work period” in section 12(A) of Wage Order
1-2001 is potentially ambiguous, and thus must be interpreted in context. Section
12(A) states: “Every employer shall authorize and permit all employees to take
rest periods, which insofar as practicable shall be in the middle of each work
period. The authorized rest period time shall be based on the total hours worked
22
daily at the rate of ten (10) minutes net rest time per four (4) hours or major
fraction thereof.”
As the second sentence of section 12(A) of Wage Order 1-2001 specifies the
rate of 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 a employee’s shift -- for example, an 8-
hour shift -- as that interpretation would oblige employers to schedule “rest
periods” in the middle of the shift, that is, at the 4-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 8-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.)
23
In a related contention, E.M.E. and amici curiae maintain that Wage Order
1-2001 permits combined rest breaks.9 Although we agree that the wage order
does not conclusively bar combined rest breaks, E.M.E. and amici curiae have
identified no authority establishing the permissibility of E.M.E.’s combined rest
break as a matter of law. The federal decisions upon which E.M.E. relies conclude
that combining a rest break with another break may be permissible, but do not
examine when that is the case; moreover, because they predate Brinker, their
discussion is not informed by its analysis. (Villa v. Tyco Elecs. Corp., Inc. (N.D.
Cal. Jan. 7, 2011) Case No. C10-00516 MHP [2011 U.S. Dist. LEXIS 1697, *9-
*10]; Porch v. Masterfoods U.S.A. Inc. (2008) 685 F.Supp.2d 1058, 1075.)
Similarly, the IWC documents to which amici curiae have directed our attention
establish that the IWC viewed combined rest periods as permissible in some
situations, but the documents describe only one, namely, when an employer’s
business requires shifts in which the meal period occurs soon after employees
report for work. That is not the case for E.M.E.’s employees.
Finally, E.M.E. contends appellant’s declaration failed to raise a triable
issue because it is inadmissible.10 In opposing summary judgment, appellant
submitted an executed declaration in Spanish and a translation in English,
9
In support of that contention, amici curiae have requested judicial notice of
an excerpt from a 1959 IWC enforcement manual and an IWC opinion letter dated
August 15, 1983. We take notice of those materials.
10
In the trial court, E.M.E. challenged statements in appellant’s declaration on
the basis of lack of personal knowledge (Evid. Code, § 702, subd. (a)) and lack of
“foundation[]”; (Evid. Code, § 403, subd. (a) [authorizing court to make threshold
determinations regarding admissibility of evidence]). As the court did not rule on
the objections, they are deemed overruled. (Google, supra, 50 Cal.4th at p. 534.)
E.M.E. has not renewed those objections on appeal.
24
unaccompanied by a declaration certifying the translation’s accuracy. Although
E.M.E. asserted no objection to the declaration regarding that defect before the
trial court, it maintains that we must exclude the declaration from our review. We
disagree.
Under the summary judgment statute, objections to declarations are
generally forfeited when not asserted before the trial court. (Code Civ. Proc.,
§ 437c, subd. (d).)11 That rule is applicable to technical defects in declarations.
(Rader v. Thrasher (1972) 22 Cal.App.3d 883, 889.) Furthermore, because a
translator’s failure to state under penalty of perjury that a translation is accurate
does not render the underlying testimony inadmissible per se, a party must assert a
timely challenge to the translation. (People v. Carreon (1984) 151 Cal.App.3d
559, 579-581.) The function of that rule is to provide an opportunity before the
trial court to correct the deficiency regarding the translation. (Ibid.) As E.M.E.
asserted no pertinent objection, appellant was denied any such opportunity. (See
Weiss v. Chevron, U.S.A., Inc. (1988) 204 Cal.App.3d 1094, 1098 [in reviewing a
summary judgment motion, trial court may consider late-filed declarations,
provided opposing party is afforded notice and an opportunity to respond].)
E.M.E. has thus forfeited its challenge to appellant’s declaration.
Because summary adjudication was improperly granted with respect to
appellant’s rest break claim (the second cause of action), it was also improperly
11
Subdivision (d) of Code of Civil Procedure section 437c provides:
“Supporting and opposing affidavits or declarations shall be made by a person on
personal knowledge, shall set forth admissible evidence, and shall show
affirmatively that the affiant is competent to testify to the matters stated in the
affidavits or declarations. An objection based on the failure to comply with the
requirements of this subdivision, if not made at the hearing, shall be deemed
waived.”
25
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.
DISPOSITION
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.
CERTIFIED FOR PUBLICATION.
MANELLA, J.
We concur:
EPSTEIN, P. J.
WILLHITE, J.
26