Mendez-Villegas v. Duarte CA5 ( 2022 )

Filed 10/20/22 Mendez-Villegas v. Duarte CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
TERESA E. MENDEZ-VILLEGAS et al.,
F082174
Plaintiffs and Appellants,
(Super. Ct. No. 2014212)
v.
JOHN DUARTE, OPINION
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Stanislaus County. Stacy
P. Speiller, Judge.
Mallison & Martinez, Stan S. Mallison, Hector R. Martinez, Liliana Garcia and
Daniel C. Keller for Plaintiffs and Appellants.
Law Offices of Brunn & Flynn, Gerald E. Brunn and Mahanvir S. Sahota for
Defendant and Respondent.
-ooOoo-
Former employees of Duarte Nursery, Inc. (DNI) filed this action against DNI,
John Duarte (Duarte), and other individuals seeking civil penalties under the Labor Code
Private Attorneys General Act of 2004 (PAGA; Lab. Code,1 § 2698 et seq.). Teresa E.
Mendez-Villegas, Maria Navarro, Loyda Aguilar, and Olimpia Cano de Peral
(collectively, Plaintiffs) allege Duarte was personally liable under PAGA because he was
a person who violated or caused to be violated various provisions of the Labor Code.
Duarte, an owner, president and chief executive officer (CEO) of DNI, moved for
summary judgment, contending he lacked sufficient personal involvement to have caused
the alleged violations. The trial court granted his motion after concluding there was no
evidence in the record that Duarte was individually responsible for violations of
sections 558 or 1197.1. Plaintiffs appealed.
Whether Duarte was a “person acting on behalf of an employer who violate[d], or
cause[d] to be violated,” California’s wage and hours law for purposes of section 558
presents this court with a question of statutory construction. We conclude an officer of a
corporate employer does not cause a violation merely by being an officer. Instead, the
officer must have engaged in some affirmative conduct beyond his or her status as an
officer. In particular, the officer must (1) have been personally involved in the purported
violation or (2) have had sufficient participation in managing or overseeing the activities
of those persons directly responsible for the violation that such participation can be found
to have contributed to the violation. (See Usher v. White (2021) 64 Cal.App.5th 883,
896–897 (Usher).)
Applying this statutory interpretation to the evidence about the conduct
attributable to Duarte, we conclude Duarte carried his initial burden of showing he was
not personally involved in the purported violations and lacked sufficient participation in
the management or oversight of those directly responsible for the violations to be deemed
1 Undesignated statutory references are to the Labor Code.
2.
to have contributed or caused the violations. The evidence relied upon by Plaintiffs is
insufficient to establish the existence of a triable issue of material fact.
We therefore affirm the judgment.
FACTS AND PROCEEDINGS
DNI operates a greenhouse in Hughson and farms other properties in Stanislaus
County. Duarte serves as its CEO, and his brother, Jeff Duarte (Jeff), serves as another
executive officer. Collectively, they perform most of the decisionmaking at DNI.
Plaintiffs reside in Stanislaus County and were employed as non-exempt
employees by DNI until 2014.
The Pleadings
In April 2015, Plaintiffs filed a class action complaint setting forth seven causes of
action2 against DNI for violations of the Labor Code and the unfair competition law
(Bus. & Prof. Code, § 17200 et. seq.). An eighth cause of action asserted a PAGA claim
for civil penalties against DNI and five individuals: (1) Duarte; (2) Michael Duarte;
(3) Jeff; (4) Patricia Lopez; and (5) Engracia Lopez.
In August 2015, Plaintiffs filed their first amended complaint (FAC). It sets forth
the same causes of action and removes Michael Duarte as a defendant.
The FAC alleges DNI “has employed Plaintiffs” and refers to DNI as the
“ ‘EMPLOYER DEFENDANT.’ ” The FAC refers to the individual defendants as the
2 The first six causes of action against DNI were (1) failure to pay minimum wage (Lab.
Code, §§ 1197, 1194, subd. (a), 1194.2; Industrial Welfare Commission (IWC) wage orders
Nos. 13-2001, 14-2001, Cal. Code Regs., tit. 8, §§ 11130, 11140); (2) failure to provide rest
periods or pay additional wages in lieu thereof (Lab. Code, §§ 226.7, 512; IWC wage orders
Nos. 13-2001, 14-2001, Cal. Code Regs., tit. 8, §§ 11130, 11140); (3) failure to provide meal
periods or pay additional wages in lieu thereof (Lab. Code, §§ 226.7, 512; IWC wage orders
Nos. 13-2001, 14-2001, Cal. Code Regs., tit. 8, §§ 11130, 11140); (4) failure to indemnify
employees for all necessary expenditures or losses incurred (Lab. Code, § 2802; IWC wage
orders Nos. 13-2001, 14-2001, Cal. Code Regs., tit. 8, §§ 11130, 11140); (5) knowing and
intentional failure to comply with itemized employee wage statement provisions (Lab. Code,
§§ 226, subd. (b), 1174, 1175); and (6) failure to pay all wages owed upon termination or
resignation (Lab. Code, §§ 201, 202, 203).
3.
“PAGA DEFENDANTS” and alleges they are the persons who violated or caused to be
violated sections 558 and 1197.1, and IWC wage orders. The FAC explains, “The core
violations PLAINTIFFS allege against the EMPLOYER DEFENDANT [DNI] are:
(1) failure to pay all minimum wages owed; … (3) failure to provide rest or meal periods
(or pay the statutory additional wages due); (4) failure to reimburse necessary expenses
incurred; … and (6) failure to pay all wages owed upon termination or resignation,” but
that “[t]he PAGA DEFENDANTS caused the violations at issue and benefitted
financially and/or professionally from these violations.”
The FAC alleges Plaintiffs were all employed as non-exempt employees by DNI
until 2014 and the individual defendants, including Duarte, “had complete authority over
all labor policies and/or practices, including those resulting in violations as described in
this complaint, and they have actively violated or caused the violations alleged herein.”
Relevant to the PAGA claim, the FAC asserts:
“… PAGA Defendants JEFF [], [] DUARTE, PATRICIA LOPEZ,
ENGRACIA LOPEZ are individually liable for the violations herein
alleged under PAGA and through, among other provisions, [section] 558,
which provides for individual liability for all persons who violate or cause
to be violated provisions of the California Labor Code and California
Regulations, including IWC wage orders.”
The FAC describes “unlawful practices and policies” that “DEFENDANTS
maintained and enforced,” including:
“a. forcing … PLAINTIFFS, to work ‘off the clock’ time without
compensation, including but not limited to time spent donning an[d]
doffing personal protective equipment, washing hands, walking to
and from the work areas to designated break areas during meal
periods, addressing human resources issues, and waiting in line to
clock in and/or out during normal work hours, meal periods and rest
periods as required by DEEFENDANTS and under their control …;
“b. failing to compensate PLAINTIFFS for all hours worked, including
but not limited to hours worked by PLAINTIFFS that were neither
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included in DEFENDANTS’ piece-rate compensation system, nor
compensated at PLAINTIFFS’ hourly rate …;
“c. failing to provide … PLAINTIFFS, rest periods … including …
failing to provide net ten (10) minute rest periods because of time
spent donning an[d] doffing personal protective equipment, washing
hands, and/or walking to and from the work areas to designated
break areas …;
“d. failing to provide … PLAINTIFFS, meal periods … including …
failing to provide net thirty (30) minute meal periods because of time
spent donning an[d] doffing personal protective equipment, washing
hands, and/or walking to and from the work areas to designated
break areas, and waiting in line to clock in and/or out …; [¶] … [¶]
“g. failing to reimburse … PLAINTIFFS, for expenses incurred for
providing their own personal protective equipment, uniforms and
rubber boots, in violation of California laws and public policy .…”
In December 2015, defendants filed an amended answer that included a general
denial and 23 affirmative defenses.
Summary Judgment Motion
In August 2020, Duarte moved for summary judgment on the PAGA claim,
contending the that claim against him had no merit. Duarte asserted he was not
responsible for any Labor Code violations that allegedly damaged Plaintiffs. Duarte
noted he was not the actual employer and argued the fact that he is the president and part
owner of DNI is not enough to confer liability under PAGA.
In addition, Patricia Lopez filed a separate summary judgment motion. Her
moving papers asserted she is “responsible for shifting employees from one department
to another” and “follows the work schedules put together by the Human Resources and
Safety departments.” Engracia Lopez also filed a separate summary judgment motion
and her papers asserted she “is a mid-level supervisor who oversees about seventeen
(17) employees,” she does not set meal and rest period schedules, the schedules are given
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to her by her superiors, she informs her crew when to take lunches and breaks, and she
has nothing to do with setting wages or implementing payroll policies.
1. Duarte’s Undisputed Material Facts (UMFs)
Duarte’s separate statement asserted the following as material facts that were
undisputed:
UMF 1 – “[] DUARTE has been president and chief executive officer for [DNI]
since 2008.”
UMF 2 – “[] DUARTE’s duties involve coordinating different departments such
as sales, shipping, production, marketing, customer interaction, and finance.”
UMF 3 – “[] DUARTE[’s] only interactions with employees are with department
heads and managers.”
UMF 4 – “[] DUARTE is only generally involved in the process of determining
the medium wage for employees and benefits.”
UMF 5 – “[] DUARTE is not responsible for setting or payment of wages to
employees such as [P]laintiffs.”
UMF 6 – “[] DUARTE is not involved with providing meal or rest periods for
employees.”
UMF 7 – “[] DUARTE is not involved with setting work schedules for employees
such as [P]laintiffs.”
UMF 8 – “Plaintiffs have stated that it was defendant DNI that set their wages.”
UMF 9 – “Plaintiffs have not provided any evidence of wage and hour violations
by [] DUARTE that are actionable under PAGA.”
UMF 10 – “Plaintiffs sued [] DUARTE simply because they believe he is the
owner of [DNI].”
6.
2. Evidence in Support of Duarte’s UMFs
Duarte supported his UMFs with references to his deposition testimony. His
supporting evidence also included deposition testimony from plaintiffs Aguilar and
Navarro.
Duarte testified, on any given day at DNI, he “touch[es] base with all the leads” of
various departments to “find out what’s going on in a general way whether it’s sales,
orders coming in, shipping, production, marketing, [or] finance.” He also engages in
customer interaction such as discussing “[h]ow to optimize [DNI’s] products in their
field, in their performance.”
Duarte stated he works with “some direct employees” of DNI including
“department heads and managers.” He could not specify how DNI hires “general ag
workers” because he “d[oes]n’t participate” in that decision. He acknowledged
participating in discussions regarding “rates of pay” for “specific management level
employees.”
Duarte works with Jeff and controller Greg Stoll in setting payroll policy at a
“high level” at DNI. He described this process as “an annual look over of what we [a]re
to do in terms of overall wages increases … where the minimum wage lie is.”
Regarding pay for nonsalaried employees, Duarte testified:
“If minimum wage[] has gone up a dollar—we’ll say hey minimum
wage has gone up a dollar. Are [sic] going to go up a dollar? Because we
might be 50 cents or a dollar off minimum wage at our hiring start rate, so
generally do some high level—yeah everybody hourly is going up a dollar
each other or, you know, 50 cents or—so we’ll do a high level overview of
what wages are going to do in a general way.”
Duarte testified he received questions about wages from “[a]nybody who wants to
talk to me.” He qualified this testimony by stating that “I don’t do wages,” and that he
would “let Jeff know I met with them and he’ll work [with] Charlie [Gonzalez] and let
him know that we got some feedback at my level and they can work through it and see
7.
what’s—what they want to do.” Duarte stated Charlie Gonzalez works under Jeff and
identified Gonzalez as a “labor and safety manager” and a member of DNI’s “compliance
people.”
Duarte denied responsibility for setting or paying wages for DNI’s line workers
because he does not “make decisions” regarding pay for “the hundreds of direct labor
employees” that compose DNI’s work crews.
Duarte also disclaimed responsibility for setting work schedules. According to
Duarte, he does not “[d]etermin[e] when a particular crew starts. When its’ break period
is. When its’ lunch period is. Whether a crew needs to work on Saturdays or not.
Whether a crew needs to work overtime or not.” Similarly, Duarte denied “[p]roviding
the specific timeframes for” meal and rest breaks for employees. He explained:
“I obviously need to make sure that meal and rest periods are
provided, but exactly when they’re provided and when they are scheduled
in the day is not something I get involved with directly.”
Duarte also relied on the deposition testimony of plaintiffs Aguilar and Navarro.
When asked who set wages in the nursery, Aguilar stated: “The company.” Navarro
testified that she did not have any documents supporting her contention that Duarte
violated the Labor Code; she was unaware of any such documents; and she knew Duarte
as the “owner” of DNI but she never spoke with him during her tenure at DNI.
Additionally, the following colloquy occurred:
“[Duarte’s counsel:] Do you believe, as you sit here today, that []
Duarte somehow violated the Labor Code?
“[Navarro:] Yes. [¶] … [¶]
“[Duarte’s counsel:] In what way?
“[Navarro’s counsel:] Objection, calls for speculation, legal
conclusion.
“[Navarro:] They didn’t pay us the hours that we worked.”
8.
3. Plaintiffs’ Opposition to Motion and Response to UMFs
Plaintiffs opposed Duarte’s summary judgment motion on the grounds his
responsibility “for setting employee wages and fail[ing] to provide” rest periods
“create[ed] liability under California Labor Code sections 558 and 1197.1.” Plaintiffs
asserted that in Atempa v. Pedrazzani (2018) 27 Cal.App.5th 809 (Atempa) the court
“decided that any person ‘acting on behalf of an employer’ who violates or causes a
violation of the state’s applicable minimum wage laws may be held personally liable for
civil penalties under Labor Code section 558.”
Plaintiffs’ separate statement disputed nine of Duarte’s UMFs and agreed he had
been CEO of DNI since 2008. Specifically, Plaintiffs responded to certain of Duarte’s
UMFs as follows:
UMFs 2 and 7 – Plaintiffs disputed these facts, noting Duarte testified that he is
“responsible for ‘whatever happens’ in [DNI]”; he is president and CEO and is
responsible for the company; “[m]ost of the decision-making authority” at DNI rests with
Duarte and Jeff; and Duarte has the authority to hire and fire employees. With respect to
UMF 7, Plaintiffs also stated Duarte “adjusts employee schedules.”
UMF 3 – Plaintiffs disputed this fact because Duarte “testified to communicating
with large groups of employees” and he “attend[ed] the annual meeting for nursery
workers to inform them what the payroll policies will be.”
UMFs 4 and 5 – Plaintiffs asserted Duarte “sets wages for employees of [DNI]”
and “determines what the rates of pay will be for nursery workers.” With respect to
UMF 5, Plaintiffs also responded that “Duarte testified with regards to the wages of
nursery workers, ‘we try to be above minimum wage.’ ”
UMF 6 – Plaintiffs claimed Duarte bore responsibility for “making sure [DNI]
complies with rest period laws” and that he admitted “ ‘I obviously need to make sure
that meal and rest periods are provided.’ ”
9.
UMF 8 – Plaintiffs asserted Duarte misrepresented Aguilar’s testimony and it did
“not establish that all four Plaintiffs” testified that DNI “ ‘set their wages.’ ”
UMFs 9 and 10 – Plaintiffs disputed these UMFs and characterized them as legal
conclusions and argument, not facts.
4. Evidence in Support of Plaintiffs’ Separate Statement
Plaintiffs’ evidence in support of their separate statement included deposition
testimony from Duarte and Jeff.
Regarding UMF 2, Duarte described DNI as a “family operation [where] most of
our decision making is based on Jeff and I at the executive level.” He stated his “broad
general responsibility” meant “you’re responsible for whatever—whatever happens” at
DNI. Later, he reiterated “everything about [DNI] is my responsibility.”
Jeff testified at his deposition that Duarte had the authority to hire and fire DNI
employees.
In connection with UMF 3, Duarte testified DNI’s goal is to be known as a
“preferred employer.” Duarte explained:
“Usually if I talk to a large group of employees, you know, just as an
owner and showing them that we’re engaged and accessible. I’ll say we
want to be respectful, we want to be safe, and we want to be fair. And we
want everybody at [DNI] treating each other—concerned with each other’s
safety, make them feel respected, and assure that we’re treating everyone
fairly.”
Duarte stated he participates in meetings with nursery workers. Specifically, he
testified DNI annually conducts “one big meeting where we talk about bonus checks,
what the payroll policies will be.” Duarte explained his brother Jeff “does most of the
talking about what our employment practices are” whereas Duarte provides “an overview
of where [DNI] is at.”
With respect to UMFs 4 and 5, Plaintiffs focused on Duarte’s testimony that
“we’ll do a high level overview of what wages are going to do in a general way”; that line
10.
workers at DNI usually earn “above minimum wage”; and DNI “tr[ies] to be above
minimum wage.” In later testimony, Duarte stated:
“Well I’m obviously responsible to see the people get paid. But
determining what exactly rate of pay [sic] an individual gets at that level, I
was not directly responsible for setting those wages that would be paid.”
Regarding UMF 6, Duarte testified he knew of a rest period policy and DNI’s
“compliance people” scheduled rest periods. He identified Charlie Gonzalez as the
“main person” who “adjust[ed] the work schedules for the employees.” Duarte stated:
“If they arrive at 5:30 a.m. because it’s, you know, mid-year and
they want to work early and get home early, he’ll have to make sure that the
break periods and lunch periods line up appropriately so that they have the
right lunch break to go with the 5:30 a.m. start. If later in the year we go to
a 6:00 or 7:00 a.m. start, then those break and lunch periods have to be
adjusted again.”
Trial Court’s Orders
On October 27, 2020, the trial court heard argument on Duarte’s summary
judgment motion. Plaintiffs’ counsel recited the language of sections 558 and 1197.1 and
Wage Order No. 14 and asserted the “[L]egislature extended the reach of [s]ection[s] 558
and 1197.1 under PAGA so that plaintiffs may hold individuals who may try to hide
behind the corporate titles directly responsible.” Plaintiffs’ counsel argued: “A
reasonable trier of fact would likely agree … that an individual who received notice of
the PAGA action and continued to ratify the unlawful conduct can be held liable under
[s]ection[s] 558 and 1197.1 for minimum wage and rest and meal period violations.”
The trial court granted the motion one day after the hearing. Its written order
stated:
“Duarte has met his initial burden of proof on this motion for summary
judgment, and Plaintiffs have failed to provide evidence raising a genuine
issue of material fact as to Defendant Duarte’s liability for their damages.
There is no evidence in the record that Defendant Duarte is individually
11.
responsible for violations of Labor Code sections 558 or 1197.1. While
Defendant Duarte is responsible for setting wages at the highest level, he
has no involvement in determining whether the time needed to punch a time
clock or doff protective equipment should be paid or not. Nor does he
instruct individual employees regarding when their breaks start or end.
While he acknowledges that he has responsibility for making sure that rest
breaks and lunch periods are provided to employees in the first instance,
there is no evidence that he is involved in granular decisions regarding
when breaks begin and when they end. Accordingly, Defendant Duarte’s
motion for summary judgment is granted.”
In separate orders, the trial court denied the summary judgment motions filed by
Patricia Lopez and Engracia Lopez. The court concluded triable issues of fact existed as
to whether those defendants were individually responsible for violations of sections 558
and 1197.1 because the record contained testimony that they personally cut short
employees’ rest breaks and lunch breaks and adjusted time sheets in a manner that
violated the law.
Plaintiffs timely appealed the summary judgment in Duarte’s favor.
DISCUSSION
I. APPLICABLE LEGAL PRINCIPLES AND STATUTES
A. Standard of Review
Summary judgment is appropriate “where no triable issue of material fact exists
and the moving party is entitled to judgment as a matter of law.” (Merrill v. Navegar,
Inc. (2001) 26 Cal.4th 465, 476, citing Code Civ. Proc., § 437c, subd. (c).) A defendant
is entitled to judgment as a matter of law when it shows that the action has no merit.
(Code Civ. Proc., § 437c, subd. (a).) One way a defendant can show a cause of action has
no merit is demonstrating one or more of its elements cannot be established. (Code Civ.
Proc., § 437c, subds. (o)(1), (p)(2).) This is the method chosen by Duarte.
Appellate review from a grant of summary judgment requires us to examine “the
record de novo, considering all the evidence set forth in the moving and opposition
papers except that to which objections have been made and sustained.” (Guz v. Bechtel
12.
National, Inc. (2000) 24 Cal.4th 317, 334.) When conducting that review, appellate
courts employ the same three-part analysis as the trial court. (Jones v. Awad (2019)
39 Cal.App.5th 1200, 1206–1207.) Therefore, we (1) identify the issues framed by the
pleadings, (2) determine whether the moving party has established facts justifying
judgment in its favor; and (3) determine whether the nonmoving party has demonstrated a
triable issue of material fact. (Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1602.)
The California Supreme Court directs us to “liberally construe the evidence in support of
the party opposing summary judgment and resolve doubts concerning the evidence in
favor of that party.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.)
B. Labor Code Provisions
1. PAGA
“PAGA [] empowers employees to sue … to recover civil penalties previously
recoverable only by the Labor Commissioner.” (ZB, N.A. v. Superior Court (2019)
8 Cal.5th 175, 184–185 (ZB, N.A.).) The statute “also creates new civil penalties, equally
enforceable by aggrieved employees, for most other Labor Code violations that
previously did not carry such penalties.” (Id. at p. 185, citing § 2699, subds. (f), (g)(1).)
Essentially, PAGA is a “procedural statute” that permits an “aggrieved employee”
to recover civil penalties arising from Labor Code violations. (Amalgamated Transit
Union, Local 1756, AFL-CIO v. Superior Court (2009) 46 Cal.4th 993, 1003.) The
Legislature enacted PAGA “ “to augment the limited enforcement capability of the
[State] by empowering employees to enforce the Labor Code as representatives of the
[State].’ ” (Kim v. Reins International California, Inc. (2020) 9 Cal.5th 73, 86.)
Therefore, a PAGA plaintiff operates as the state’s deputy or representative in what is
essentially a dispute between an employer and the state brought “to protect the public, not
13.
to benefit private parties.” (Amalgamated Transit Union, Local 1756, AFL-CIO, at
p. 1003.) Section 2699, subdivision (a) states:
“Notwithstanding any other provision of law, any provision of this code
that provides for a civil penalty to be assessed and collected by the Labor
and Workforce Development Agency or any of its departments, divisions,
commissions, boards, agencies, or employees, for a violation of this code,
may, as an alternative, be recovered through a civil action brought by an
aggrieved employee on behalf of himself or herself and other current or
former employees pursuant to the procedures specified in Section 2699.3.”
(§ 2699, subd. (a).)
PAGA defines an “ ‘aggrieved employee’ ” as “any person who was employed by
the alleged violator and against whom one or more of the alleged violations was
committed.” (§ 2699, subd. (c).)
PAGA also contains “ ‘a default penalty and a private right of action.’ ” (Home
Depot U.S.A., Inc. v. Superior Court (2010) 191 Cal.App.4th 210, 217.) Section 2699,
subdivision (f) provides:
“(f) For all provisions of this code except those for which a civil penalty is
specifically provided, there is established a civil penalty for a violation of
these provisions, as follows:
“(1) If, at the time of the alleged violation, the person does not
employ one or more employees, the civil penalty is five hundred
dollars ($500).
“(2) If, at the time of the alleged violation, the person employs one
or more employees, the civil penalty is one hundred dollars ($100)
for each aggrieved employee per pay period for the initial violation
and two hundred dollars ($200) for each aggrieved employee per pay
period for each subsequent violation.” (§ 2699, subd. (f)(1)–(2).)
2. Section 558
Section 558 composes a portion of the Eight-Hour-Day Restoration and
Workplace Flexibility Act of 1999. (ZB, N.A., supra, 8 Cal.5th at p. 187.) Section 558—
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titled “Violations of chapter or order of the [IWC];[3] civil penalties”—permits the Labor
Commissioner to issue citations, including an assessment of civil penalties, for overtime
and other workday violations. (ZB, N.A., at p. 187.) Section 558 states in relevant part:
“(a) Any employer or other person acting on behalf of an employer who
violates, or causes to be violated, a section of this chapter or any provision
regulating hours and days of work in any order of the [IWC] shall be
subject to a civil penalty .… [¶] … [¶]
“(b) If upon inspection or investigation the Labor Commissioner
determines that a person had paid or caused to be paid a wage for overtime
work in violation of any provision of this chapter, any provision regulating
hours and days of work in any order of the [IWC], or any applicable local
overtime law, the Labor Commissioner may issue a citation.…” (§ 558,
subds. (a),(b), italics added.)
3. Section 1197.1
Division 2, part 4, chapter 1 of the Labor Code concerns “Wages, Hours and
Working Conditions.” (§§ 1171–1207.) Section 1197 states “payment of a lower wage
than the minimum so fixed is unlawful.” Section 1197.1 imposes penalties for failing to
pay minimum wage. (See Jaime Zepeda Labor Contracting, Inc. v. Department of
Industrial Relations (2021) 67 Cal.App.5th 891, 906–907.) Section 1197.1 states in
relevant part:
“(a) Any employer or other person acting either individually or as an
officer, agent, or employee of another person, who pays or causes to be
paid to any employee a wage less than the minimum fixed by an applicable
state or local law, or by an order of the commission, shall be subject to a
civil penalty, restitution of wages, liquidated damages payable to the
employee …: [¶] … [¶]
3 The IWC is the state agency empowered to formulate regulations (known as wage orders)
governing minimum wages, maximum hours, and overtime pay in the State of California.
(Ramirez v. Yosemite Water Co. (1999) 20 Cal.4th 785, 795.) Wage orders retain the force of
law and there are presently 18 in effect—16 of which cover specific industries, one of which
covers all employees not covered by an industry or occupation order, and a general minimum
wage order. (Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1102, fn. 4;
Martinez v. Combs (2010) 49 Cal.4th 35, 57.)
15.
“(b) If, upon inspection or investigation, the Labor Commissioner
determines that a person has paid or caused to be paid a wage less than the
minimum under applicable law, the Labor Commissioner may issue a
citation to the person in violation.” (§ 1197.1, subds. (a), (b), italics added.)
C. Atempa and Framing the Issue
1. An Owner-officer Can be Personally Liable for Civil Penalties
In Atempa, former employees of an incorporated restaurant (Pama, Inc.) sued the
corporation for various violations of the Labor Code and included a cause of action
against both the corporation and its owner, president, and director (Pedrazzani) for civil
penalties under PAGA. (Atempa, supra, 27 Cal.App.5th at p. 813.) After a bench trial,
the court imposed joint and several liability on Pedrazzani and the corporation for PAGA
civil penalties. (Atempa, at p. 814.) The trial court found Pedrazzani was liable as the
person other than the corporate employer who either violated or caused the violation of
the Labor Code provisions governing overtime pay and minimum wages. (Id. at p. 812.)
Pedrazzani appealed, raising a relatively narrow legal issue. The Fourth District
Court of Appeal established the context for that legal issue by noting that Pedrazzani had
not challenged the sufficiency of the evidence supporting the findings as to his
participation in the payment of wages that violated overtime pay and minimum wage
laws. (Atempa, supra, 27 Cal.App.5th at p. 817.) The court then framed the issue
presented as follows:
“Under sections 558[, subdivision ](a) and 1197.1[, subdivision ](a), can an
individual officer or agent of a corporate employer be personally liable to
an employee of the corporate employer for the civil penalties authorized for
overtime pay and minimum wage violations, where there is no allegation or
finding of either an alter ego relationship between the individual officer or
agent and the corporate employer or acts by the individual officer or agent
outside the scope of the agency for the corporate employer?” (Atempa,
supra, 27 Cal.App.5th at p. 817, italics added.)
The Fourth District Court of Appeal’s analysis had two parts. First, it examined
the statutory text to determine if someone other than the employer could be liable for
16.
civil penalties. Second, it considered who could recover the civil penalties. On the
question of who could be liable, the court concluded the language in section 558,
subdivision (a) and section 1197.1, subdivision (a) was “broad enough to unambiguously
include Pedrazzani as a person other than the corporate employer subject to the civil
penalties awarded by the trial court under those two statutes.” (Atempa, supra,
27 Cal.App.5th at p. 824.)
On the question of who could sue to recover the civil penalties, the court noted
that sections 558, subdivision (a) and 1197.1, subdivision (a) “only authorize the Labor
Commissioner to recover the penalties” and then turned to PAGA’s text. (Atempa, supra,
27 Cal.App.5th at p. 826.) In particular, the court considered section 2699,
subdivision (a), which provides that “any provision of [the Labor C]ode that provides for
a civil penalty to be assessed and collected by the Labor and Workforce Development
Agency [, including the Labor Commissioner,] for a violation of this code, may, as an
alternative, be recovered through a civil action brought by an aggrieved employee on
behalf of himself or herself and other current or former employees.” (§ 2699, subd. (a);
see Atempa, at p. 816.) In addition, section 2699, subdivision (i) provides that “civil
penalties recovered by aggrieved employees shall be distributed as follows: 75 percent to
the Labor and Workforce Development Agency ... and 25 percent to the aggrieved
employees.” (§ 2699, subd. (i); see Atempa, at p. 816.) Based on the clear language in
section 2699, the court concluded PAGA allows an aggrieved employee to recover the
civil penalties imposed by sections 558 and 1197.1. (Atempa, at p. 826.) The court noted
Pedrazzani had not challenged whether section 2699 applied or whether the plaintiffs
qualified as aggrieved employees under the statute. (Atempa, at pp. 826–827.)
Accordingly, the Fourth District Court of Appeal affirmed the portions of the judgment
holding Pedrazzani liable for civil penalties. (Id. at p. 831.)
We agree with the Fourth District Court of Appeal’s analysis of the meaning of the
Labor Code provisions. Sections 558 and 1197.1 unambiguously provide that an
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individual other than the corporate employer may be liable for the civil penalties imposed
by those sections. Also, section 2699 unambiguously allows an aggrieved employee to
sue and recover civil penalties for Labor Code violations. (See ZB, N.A., supra, 8 Cal.5th
at pp. 184–185.)4
2. Step One of the Summary Judgment Analysis—Framing the Issue
With the foregoing questions of statutory interpretation resolved, we undertake the
first step in analyzing a summary judgment motion and identify the issues framed by the
pleadings. (See AARTS Productions, Inc. v. Crocker National Bank (1986)
179 Cal.App.3d 1061, 1064.) The motion must show “there is no factual basis for relief
on any theory reasonably contemplated by the opponent’s pleading.” (Ibid.; see Brantley
v. Pisaro, supra, 42 Cal.App.4th at p. 1602.)
Paragraph 3 of the FAC alleges Duarte and the other individual defendants are
persons who violated or caused to be violated sections 558 and 1197.1 and IWC wage
orders. Similarly, paragraph 17 alleges Duarte and the others “are persons who violated
or caused the violations of the California Labor Code and provisions regulating hours and
days of work as detailed in the applicable Industrial Wage Commission Wage Order.”
In response to these allegations, Duarte’s moving papers assert “he can only be
subject to [liability] as an ‘other person’ if there is a sufficient showing that he was
responsible [for] an underlying wage violation.” Plaintiffs’ opposition papers quote their
allegation that Duarte was a person who violated or caused violations of the Labor Code
and contend he “was responsible for setting employee wages and failed to provide legally
compliant rest periods.” Under Plaintiffs’ view of the law, sections 558, 1197.1 and
2699, subdivision (f), “provide[] for individual liability for all persons who violate or
4 We do not reach the issue of whether Plaintiffs qualify as aggrieved employees with
respect to Duarte.
18.
cause to be violated provisions of the California Labor Code or California Regulations,
including IWC wage orders.”
Based on the FAC’s allegations, Duarte’s moving papers, and Plaintiffs’
opposition papers, we conclude the issue framed for our consideration is whether Duarte
was a person who violated or caused a violation of the wage and hour law. This is the
essential element of Plaintiffs’ claim that Duarte’s motion seeks to negate. Consequently,
the second step of the summary judgment analysis addresses whether Duarte carried his
initial burden by making a prima facie showing that he did not violate, or cause a
violation of, the Labor Code or IWC wage order. (Code Civ. Proc., § 437c, subd. (p)(2);
see Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850–851 [moving party’s
burden to make a prima facie showing].)
D. Case Law Addressing Whether a Person Violated or Caused a Violation
Before we consider whether Duarte carried his initial burden, we address what it
means to be a “person acting on behalf of an employer who violates, or causes to be
violated” a provision of the wage and hour law (§ 558, subd. (a)) and what it means to
cause an employee to be paid less than minimum wage (§ 1197.1, subd. (a)). Two recent
cases have addressed the meaning of the same or similar statutory text.
1. Usher—Owner Prevails on Summary Judgment Motion
In Usher, supra, 64 Cal.App.5th 883, service technicians sued their employer
(White Communications, LLC) for various Labor Code violations based on the
misclassification of the technicians as independent contractors instead of employees. (Id
at p. 887.) Following the enactment of section 558.1, the technicians added two owners
of the employer as defendants. (Usher, at p. 890.) Under that section, a “natural person
who is an owner, director, officer, or managing agent” of an employer may be personally
liable if that person, on behalf of the employer, “violates, or causes to be violated” certain
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wage and hour laws. (§ 558.1, subds. (a), (b).)5 One of the owners (Shirley) moved for
summary judgment on the ground that she neither employed plaintiffs nor violated, or
caused to be violated, any provision of the Labor Code. (Id. at p. 888.) The trial court
agreed with Shirley and granted her motion. (Id. at p. 892.)
On appeal, the Fourth District Court of Appeal stated that “[n]o Court of Appeal
has addressed under what circumstances an ‘owner, director, officer, or managing agent’
of any employer may be held liable under section 558.1.” (Usher, supra, 64 Cal.App.5th
at p. 895.) After surveying federal district court decisions analyzing the statutory text and
referring to the individual defendant as having been “ ‘personally involved’ in the alleged
violations” or having “engaged in ‘individual wrongdoing,’ ” the Fourth District Court of
Appeal concluded the words “violates, or causes to be violated” in section 558.1,
subdivision (a) have an ordinary meaning. (Usher, at pp. 895–896.) The court stated that
meaning as follows:
“[W]e further conclude that to be held liable under section 558.1, an
‘owner’ such as Shirley must either have been personally involved in the
purported violation of one or more of the enumerated provisions; or, absent
such personal involvement, had sufficient participation in the activities of
the employer, including, for example, over those responsible for the alleged
wage and hour violations, such that the ‘owner’ may be deemed to have
contributed to, and thus for purposes of this statute, ‘cause[d] a violation.”
“Determining whether an ‘owner’ ‘violate[d], or cause[d] to be
violated’ the enumerated provisions in subdivision (a) of section 558.1
cannot be determined by any bright line rule, as this inquiry requires an
examination of the particular facts in light of the conduct, or lack thereof,
5 Section 558.1, subdivision (a) states: “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.” (Italics added.)
Section 558.1, subdivision (b) states that “the term ‘other person acting on behalf of an
employer’ is limited to a natural person who is an owner, director, officer, or managing agent of
the employer.”
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attributable to the ‘owner.’ But where, as here, the material facts are not in
dispute, a trial court may resolve this issue as a matter of law.” (Usher,
supra, 64 Cal.App.5th at pp. 896–897, first bracketed insertion added.)
The court applied this statutory interpretation to the evidence before it and
concluded Shirley had established that she did not participate in the company’s decision
to classify the plaintiffs as independent contractors. (Usher, supra, 64 Cal.App.5th at
p. 897.) In addition, the evidence showed Shirley “played no role in the hiring of
technicians; did not create, draft or contribute to the content of any of the independent
contractor agreements utilized by White Communications; and did not sign any such
agreements on behalf of the company.” (Ibid.) The court also stated Shirley’s evidence
showed her involvement in the operation and management of the company “was
extremely limited.” (Ibid.) As a result, the court concluded that Shirley had satisfied her
initial burden and the burden had shifted to plaintiffs to show a triable issue of material
fact as to whether Shirley caused a violation. (Id. at pp. 897–898.) The plaintiffs
acknowledged that Shirley did not directly participate in the classification decision and
relied on evidence of her signature appearing on their paychecks to establish her
involvement in the alleged violations. (Id. at p. 898.) The court concluded the electronic
signatures on paychecks did not create a triable issue as to whether Shirley caused a
violation. (Id. at p. 899.) Consequently, the Fourth District Court of Appeal affirmed the
judgment. (Id. at p. 901.)
2. Espinoza—Owner Held Liable
In Espinoza v. Hepta Run, Inc. (2022) 74 Cal.App.5th 44 (Espinoza), a truck
driver sued his former employer (Hepta Run, Inc.) and its owner (Ed Tseng) for various
Labor Code violations, unfair business practices, and civil penalties under PAGA.
(Espinoza, at p. 48.) Like the plaintiffs in Usher, the truck driver alleged Tseng was
personally liable pursuant to section 558.1. (Espinoza, at p. 59.) During the court trial,
Tseng moved for nonsuit and for a directed verdict on the ground plaintiff had failed to
prove Tseng caused any Labor Code violation. (Id. at p. 50.) Tseng argued his approval
21.
of the recommendations of the manager he hired to operate the business was insufficient
to impose personal liability. (Ibid.) The court denied both motions. (Id. at pp. 50–51.)
After posttrial briefing, the court found Labor Code violations had occurred and held
Tseng and Hepta Run, Inc. jointly and severally liable. (Id. at pp. 51–52.)
Tseng appealed, arguing he could not be personally liable because he was
uninvolved in the company’s daily operations. (Espinoza, supra, 74 Cal.App.5th at
p. 58.) The Second District Court of Appeal rejected Tseng’s argument and set forth its
statutory interpretation by stating:
“We agree generally with Usher and the federal cases it cited that, in
order to ‘cause’ a violation of the Labor Code, an individual must have
engaged in some affirmative action beyond his or her status as an owner,
officer or director of the corporation. However, that does not necessarily
mean the individual must have had involvement in the day-to-day
operations of the company, nor is it required the individual authored the
challenged employment policies or specifically approved their
implementation. But to be held personally liable he or she must have had
some oversight of the company’s operations or some influence on corporate
policy that resulted in Labor Code violations.” (Espinoza, supra,
74 Cal.App.5th at p. 59.)
Applying this statutory interpretation to the facts presented, the Second District
Court of Appeal determined Tseng had caused a Labor Code violation because he was the
sole owner of Hepta Run, Inc. and “admitted he had approved the policy regarding
payment of truck drivers that violated various provisions of the Labor Code.” (Espinoza,
supra, 74 Cal.App.5th at p. 60.) The court concluded “an owner’s or officer’s approval
of a corporate policy that violates the Labor Code is sufficient to find that individual
caused the Labor Code violation within the meaning of section 558.1.” (Id. at p. 58.)
3. Interpretation of Sections 558 and 1197.1
The issues of statutory interpretation presented in this appeal include what it
means to be a “person acting on behalf of an employer who violates, or causes to be
violated” a Labor Code provision (§ 558, subd. (a)) and what it means to be a “person …
22.
who pays or causes to be paid to any employee a wage less than the minimum.”
(§ 1197.1, subd. (a).) Usher and Espinoza are instructive because they interpret the
statutory language “violates, or causes to be violated” that appears in section 558.1,
which is identical to the language used in section 558 and similar to the language used in
section 1197.1. In addition, Usher and Espinoza show how that statutory interpretation
was applied to the evidence presented to resolve the causation issue.
As in Usher and Espinoza, we conclude an owner or officer of a corporate
employer does not cause a violation merely by being an owner or officer. Instead, the
officer must have engaged in some affirmative conduct beyond that being an owner or
officer. In particular, we interpret the statutes to mean an owner and officer such as
Duarte must (1) have been personally involved in the purported violation or (2) have had
sufficient participation in managing or overseeing the activities of those persons directly
responsible for the violation that such participation can be found to have contributed to
the violation.
II. STEP TWO AND DUARTE’S BURDEN
Duarte testified he does not “do wages” and that he does not participate in DNI’s
recruiting efforts for “general ag workers.” Duarte does not make payroll decisions for
“line workers” at DNI. Specifically, Duarte testified:
“Of the employee groups involved in this case, setting specific
wages in terms or piece rate or schedules or anything else, I simply don’t
make decisions for individuals within those groups of employees.”
Duarte also disclaimed responsibility for setting work schedules. Instead, Duarte
identified Patricia Lopez and Charlie Gonzalez as the persons primarily responsible for
this task and stated they worked under Jeff. Duarte denied responsibility for providing
the specific timeframes for meal and rest periods for DNI employees.
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Plaintiff Navarro testified Duarte was not her supervisor and confirmed she never
spoke with Duarte during her employment with DNI. Navarro was not aware of any
documents supporting her assertion that Duarte violated the Labor Code or wage orders
and did not possess any such documents. Plaintiff Aguilar believed “the company” set
the wages at DNI.
Thus, Duarte presented evidence that he did not directly participate in the alleged
violations regarding the payment of wages and break periods. (Cf. Usher, supra,
64 Cal.App.5th at pp. 897–898 [Shirley met her initial burden by showing she “did not
directly participate in the decision to classify [the plaintiffs] as independent contractors
and not employees of the company.”].) Consequently, we conclude Duarte met his initial
burden to show he did not violate or cause a violation of section 558 or section 1197.1
and, as a result, the burden shifts to Plaintiffs to show a triable issue of material fact
about Duarte’s personal involvement in a Labor Code violation or his participation in
managing or overseeing the activities of persons directly responsible to such a violation.
III. STEP THREE AND PLAINTIFF’S BURDEN
Plaintiffs contend they “presented sufficient evidence that [] Duarte is a
decisionmaker regarding operational and managerial decisions implemented by [DNI]
that resulted in the Labor Code violations alleged in Plaintiffs’ lawsuit.” (Cf. Usher,
supra, 64 Cal.App.5th at p. 898 [the plaintiffs argued “there are triable issues of material
fact whether Shirley’s involvement in the operation and management of White
Communications ‘cause[d]’ the violation of one or more of the enumerated
provisions.”].) In Plaintiffs’ view, there is evidence of “sufficient participation in the
activities” of DNI to find Duarte personally liable.
24.
A. Wages and Hours
Plaintiffs refer to Duarte’s testimony “that he does interact with non-exempt
employees and is asked directly about wages.” Additionally, Plaintiffs credit Duarte’s
testimony stating:
“If minimum wages has gone up a dollar—we’ll say hey minimum
wage has gone up a dollar. Are going to go up a dollar? Because we might
be 50 cents or a dollar off minimum wage at our hiring start rate, so
generally do some high level—yeah everybody hourly is going up a dollar
each other or, you know, 50 cents or—so we’ll do a high level overview of
what wages are going to do in a general way.”
Plaintiffs emphasize Duarte’s statement that he is “responsible for whatever …
happens” in DNI and that most of the decisionmaking rests with Duarte and Jeff.
The foregoing testimony does not create a triable issue of fact about Duarte’s
personal involvement in a Labor Code violation or his participation in managing or
overseeing the activities of persons directly responsible to such a violation. Regarding
his interactions with employees, Duarte stated he walks through DNI’s greenhouses “now
and then” and has “casual contact” with employees. Later, Duarte stated “I’ll listen to
any supervisor or employee come talk to me about anything.” This evidence is akin to
the plaintiffs’ unsuccessful argument in Usher that a triable issue arose because the
plaintiff met Shirley once at a training and she spoke with the plaintiff “on the phone
about work.” (Usher, supra, 64 Cal.App.5th at pp. 900–901.)
Duarte receiving employee questions about wages from “[a]nybody who wants to
talk to me” does not alter our conclusion. Duarte then stated he would “let Jeff know I
met with them” and Jeff would then “work to [sic] Charlie [Gonazalez]” to see “what
they want to do.” Duarte did not state he would take any action beyond relaying that
information to Jeff. Duarte listening to employee questions about wages and relaying
those concerns to Jeff is not conduct that, by itself, caused an alleged violation of
sections 558 and 1197.1. Furthermore, there is no evidence of additional acts by Duarte
25.
that would link his relaying of information to an ultimate violation of wage and hour law.
Thus, a reasonable trier of fact that heard Duarte’s testimony about his interactions with
employees could not reasonably infer that Duarte caused a violation of the Labor Code.
(See Code Civ. Proc., § 437c, subd. (c) [court shall consider inferences reasonably
deducible from the evidence].)
Duarte’s testimony also addressed whether there was “any discussion” about rates
of pay for nonsalaried nursery workers. These discussions occur at “management
executive level meeting[s]” with controller Greg Stoll and Jeff—the “core executive team
in terms of finance and budgets.” These meetings include an “employee compensation
overview.” Duarte testified they discuss pricing the company’s health care package and
examine “company budgets and the pricing models we’re using” to ensure “everything
fits together in terms of profitability and costs and competitiveness.” According to
Duarte, his participation in “payroll policy” at DNI is limited to an “annual look over of
what we [a]re to do in terms of overall wages increases, you know, where the minimum
wage lie is.”
Duarte’s testimony establishes he participates in executive level meetings that
address employee compensation and include discussion of pay rates for DNI employees.
But unlike Espinoza, there is no evidentiary link between these discussions about rates
and any purported Labor Code violations. (Cf. Espinoza, supra, 74 Cal.App.5th at p. 60
[Tseng “admitted he had approved the policy regarding payment of truck drivers that
violated various provisions of the Labor Code”].) For instance, there is no evidence
Duarte approved a wage rate below the minimum required by law. Instead, the violation
asserted in Navarro’s testimony was that “[t]hey didn’t pay us the hours that we worked.”
However, there is no evidence before us regarding how much Plaintiffs worked, the tasks
for which they were compensated, what tasks they performed without compensation, and
(most importantly for this summary judgment motion) how Duarte’s conduct had a role
in causing the alleged underpayment.
26.
We reach the same conclusion regarding Duarte’s testimony about his overall
responsibility for DNI and about Jeff and Duarte making most of the decisions for the
company. There is no evidence that Duarte’s affirmative conduct in overseeing
intermediate management personnel caused a Labor Code violation. The evidence shows
that Charlie Gonzalez is the labor and safety manager for DNI, that Gonzalez works
under Jeff, and that Patricia Lopez works under Gonzalez.6 Jeff handles “production
meetings” whereas Duarte addresses “customer interactions, working with researchers,
technology, marketing[, and] sales.” The responsibility for DNI’s labor practices fell on
Jeff Duarte and those working under him. (See Usher, supra, 64 Cal.App.5th at p. 897.)
Furthermore, there is no evidence Duarte approved a particular policy that caused
violations of the Labor Code. (Cf. Espinoza, supra, 74 Cal.App.5th at p. 60 [owner
admitted he approved the policy regarding payment of truck drivers that violated various
Labor Code provisions].) Thus, Duarte’s generalized statements that reflect his
management role at DNI does not create a triable issue of material fact as to whether he
caused one of the alleged violations of the Labor Code.
B. Meal and Rest Breaks
Plaintiffs also assert there is a triable issue of fact as to Duarte’s participation in
the alleged meal and rest period violations. Plaintiffs emphasize Duarte’s testimony
wherein he stated “I obviously need to make sure that meal and rest periods are
provided .…”
The evidence presented does not create a triable issue of fact about whether Duarte
participated in violations involving meal and rest breaks. Plaintiffs’ reference to Duarte’s
testimony omits his statement that “exactly when [meal and rest periods are] provided
and when they are scheduled in the day is not something that I get involved with
6 Duarte testified Jeff “has Charlie Gonzalez—I believe is his labor and safety manager.
And then [Patricia Lopez] maybe the labor supervisor under Charlie, so.” Later in that portion of
testimony, Duarte stated “I believe work wise it’s Jeff to Charlie to [Patricia Lopez].”
27.
directly.” Thus, we reject Plaintiffs’ contention that Duarte “testified to his direct
oversight over the provision of meal and rest breaks.” (Italics added.) Moreover, in other
portions of his testimony, Duarte identified Gonzalez as the “compliance” person
responsible for rest periods, a person who works under Jeff. Thus, the evidence
presented does not show affirmative conduct sufficient to create a triable issue of fact as
to whether Duarte violated, or caused to be violated, a Labor Code provision addressing
meal or rest breaks.
C. Expense Reimbursement
Plaintiffs also argue the trial court erred in granting summary judgment because
Duarte’s motion did not dispose of Plaintiffs’ entire PAGA claim. Plaintiffs contend
their fourth cause of action alleges a failure to reimburse expenses in violation of
section 2802, a predicate violation for which PAGA penalties are sought.
Duarte testified that he did not make decisions for individual employees on issues
with their payroll data. This testimony, coupled with Duarte’s other testimony about his
responsibilities as CEO, is sufficient to carry his burden of showing he was not involved
in any failure to pay for reimbursable expenses incurred by an employee. Therefore, the
burden shifted to Plaintiffs to present evidence demonstrating a triable issue of fact
involving their section 2802 claim. (Union Bank v. Superior Court (1995)
31 Cal.App.4th 573, 589 [when the burden has shifted, the plaintiff must set forth specific
facts which prove the existence of a triable issue of material fact].)
Plaintiff Navarro testified that she believed Duarte violated the Labor Code
because “[t]hey didn’t pay us the hours that we worked.” She did not testify Duarte
failed to reimburse her for expenses incurred in purchasing personal protective
equipment. She also testified that she did not possess and was unaware of documentary
evidence supporting the contention that Duarte violated the Labor Code. (See Hernandez
v. Enterprise Rent-A-Car Co. of San Francisco (2019) 37 Cal.App.5th 187, 197
28.
[plaintiff’s admission in interrogatory response that she did not have documentary
evidence supporting claim of successor liability justified affirming the trial court’s grant
of summary judgment].) Thus, Plaintiffs have failed to present evidence showing Duarte
engaged in affirmative conduct that caused a failure to reimburse expenses in violation of
section 2802.
D. New Argument
At oral argument, Plaintiffs’ counsel asserted DNI did not record meal periods.
By extension, Plaintiffs argued this shifted the burden to show DNI provided meal
periods. Plaintiffs cited the Supreme Court’s recent decision in Donohue v. AMN
Services, LLC (2021) 11 Cal.5th 58 in support of this argument. Plaintiffs did not raise
the failure-to-record-meal-period issue or cite Donohue in their opening or reply briefs.
(See Cal. Rules of Court, rule 8.204(a)(1)(B).) Therefore, the argument is forfeited.
(Haight Ashbury Free Clinics, Inc. v. Happening House Ventures (2010) 184 Cal.App.4th
1539, 1554, fn. 9 [arguments raised for the first time at oral argument need not be
considered].)
DISPOSITION
The judgement is affirmed. Duarte shall recover his costs on appeal.
HILL, P. J.
WE CONCUR:
FRANSON, J.
PEÑA, J.
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