Rivera v. FSC Corporation CA2/4 ( 2024 )

Filed 9/24/24 Rivera v. FSC Corporation CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
JOSE RIVERA, B333678
Plaintiff and Appellant, (Los Angeles County
v. Super. Ct. No.
21STCV41041)
FSC CORPORATION dba IL
PASTAIO,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Barbara A. Meiers, Judge. Reversed in part and
remanded with directions.
Jonny Law, Jonathan D. Roven, Britanie A. Crippen and
Annelyse Gomez for Plaintiff and Appellant.
Fisher & Phillips, Megan E. Walker and Frank A.
Magnanimo for Defendant and Respondent.
INTRODUCTION
Plaintiff Jose Rivera sued his former employer, FSC
Corporation dba Il Pastaio (Il Pastaio), asserting 17 causes of
action, including claims under the Fair Employment and Housing
Act (FEHA) (Gov. Code, § 12900 et seq.), claims for
assault/battery and intentional infliction of emotional distress,
and various wage and hour claims under the Labor Code.1 After
Rivera voluntarily dismissed several causes of action, Il Pastaio
moved for summary judgment or, in the alternative, summary
adjudication, of the remaining causes of action. The trial court
granted summary judgment on the grounds that Rivera’s FEHA
claims were barred because he failed to exhaust his
administrative remedies, and his other claims failed as a matter
of law.
For the reasons discussed below, we conclude summary
judgment was incorrectly granted with respect to Rivera’s
harassment claims under FEHA, and his cause of action for
intentional infliction of emotional distress. We therefore reverse
in part, and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
Il Pastaio is a restaurant in Beverly Hills. Rivera began
working there in 2005 as a busser. In 2016, he became a “food
expediter,” responsible for monitoring the plating of the dishes,
1 Rivera also sued, but later dismissed, two well-known
restaurateurs, Celestino Drago and Giacomino Drago, who are
both involved with Il Pastaio. Despite sharing the same last
name, they have no familial relationship to the brothers
mentioned below, Giacomo Drago and Gaetano Drago.
2
and ensuring their presentation and quality met Il Pastaio’s
standards. Throughout his employment, Rivera reported to
Heather Verre, Nina Chua, Felix Rodriguez, and Carolina Drago.
Rivera also worked with two brothers, named Giacomo Drago and
Gaetano Drago.2 Giacomo was a busser, and Gaetano was a
waiter and cleaned tables.
Rivera testified at his deposition that both Giacomo and
Gaetano harassed him by “insult[ing] [him] really badly” and
“attack[ing] him verbally[.]” For example, on several occasions,
Giacomo called Rivera a “son of a bitch bastard Mexican[,]” and a
“shitty Mexican[,]” and told him “a wetback couldn’t give an
Italian orders.” He also called Rivera an “asshole” and a “piece of
garbage.” Gaetano made similar comments to Rivera, such as:
“You’re a [expletive] Mexican[,]” “I don’t have any idea why my
uncle would put you in charge[,]” “[Y]ou’re a [expletive]
wetback[,] and “You’re a Latino[,]” “I’m Italian[.]”
Rivera further testified that he complained to his
supervisors about Gaetano’s and Giacomo’s comments. As
described by Rivera, in 2018, on the “first [day]” Gaetano insulted
him, Rivera reported it to Carolina Drago. Carolina responded:
“Don’t take it the wrong way. This is how they – talk in Italy” and
that Rivera should “do [his] job and ignore [Gaetano].” Rivera
also complained to Heather Verre, Nina Chua, and Felix
Rodriguez about the insults, but “they all turned their backs [on
him].”
2 As several people with the last name of Drago worked at or
were associated with the restaurant, we will refer to the brothers
by their first names.
3
Nina Chua spoke to Gaetano, “ask[ing] him to please stop
insulting [Rivera] and harassing [him] . . . .” Il Pastaio then
transferred Gaetano to the morning shift and, because Gaetano
and Rivera no longer worked overlapping shifts, the alleged
insults stopped.
Giacomo’s offensive remarks, however, continued even after
management told him to stop making comments. Rivera
complained to his managers again, but it “seemed like they just
had enough of [him] having to tell them about this repeatedly.”
He, therefore, followed his supervisor’s instructions to ignore
Giacomo until an incident occurred between them in October
2021.
On October 13, 2021, after Rivera returned to work from
his meal break, Giacomo started yelling at him and asking where
he was. Rivera responded that he was coming back from his meal
break, and told Giacomo to stop insulting him and to let him do
his job. Giacomo didn’t stop insulting him, however. He said
Rivera was “garbage or trash[,] a “[expletive] Mexican,” that he
was “stupid[,]” and that he “didn’t know anything[.]” Giacomo
then approached Rivera with his finger in Rivera’s face, and
Rivera took a step back toward the wall with his hands down.
Giacomo struck Rivera “really hard with his knee on [Rivera’s]
right knee.” Giacomo then laughed and mocked him.
The managers came over and asked what happened. After
Rivera reported the incident to his managers, they called an Uber
to take Rivera home because he said he was in pain.
Managers Nina Chua and Felix Rodriguez immediately
investigated the reported incident that same day. In addition to
taking statements from Rivera and Giacomo, they reviewed
surveillance footage of the incident. Chua and Rodriguez directed
4
Giacomo not to report to work the following day pending further
investigation.
Chua then reported the incident to the management team
of Il Pastaio and provided her assessment that Giacomo’s conduct
amounted to violence and was cause for termination. On October
15, 2021, two days after the incident, Il Pastaio terminated
Giacomo for misconduct.
Rivera never returned to work after the incident.
On November 4, 2021, Rivera filed a complaint with the
Department of Fair Employment and Housing (DFEH). As
relevant here, the DFEH complaint alleged that, “on or about
October 13, 2021, [Il Pastaio] took the following adverse actions:
[¶] “[Rivera] was harassed because of [his] race, ancestry,
national origin (includes language restrictions), disability
(physical or mental), other, family care or medical leave . . . .”
After obtaining a right-to-sue notice from DFEH, Rivera
filed this action. Rivera’s complaint initially alleged 17 causes of
action. He later voluntarily dismissed his first through third,
and tenth through twelfth causes of action, leaving the following
claims: (1) harassment under FEHA (fourth cause of action);
(2) retaliation under FEHA (fifth cause of action); (3) retaliation
under the California Labor Code (sixth cause of action);
(4) failure to prevent harassment (seventh cause of action);
(5) assault/battery (eighth cause of action); (6) intentional
infliction of emotional distress (ninth cause of action); (7) failure
to pay all wages (thirteenth cause of action); (8) failure to pay
overtime wages (fourteenth cause of action); (9) failure to provide
meal and rest periods (fifteenth cause of action); (10) failure to
issue accurate itemized wage statements (sixteenth cause of
5
action); and (11) unlawful/unfair business practices (seventeenth
cause of action).
Il Pastaio moved for summary judgment, or in the
alternative, summary adjudication of these remaining causes of
action. Il Pastaio argued Rivera’s FEHA claims should fail as a
matter of law because Rivera did not produce a right-to-sue
notice from DFEH and thus, he failed to exhaust his
administrative remedies. It further argued no triable issues of
fact existed regarding the remaining causes of action.3
Rivera opposed the motion, arguing he exhausted his
administrative remedies. He stated he received an immediate
right-to-sue notice from DFEH, which he served on Il Pastaio
after Il Pastaio filed its motion for summary judgment. Rivera
further argued triable issues of material fact existed on the
remaining causes of action.4
After a hearing (which was not reported), the trial court
took the matter under submission, and ordered the parties to file
supplemental briefs addressing whether Rivera exhausted his
administrative remedies with DFEH based on an issue not raised
in the parties’ briefs. Specifically, the court ordered the parties to
address “the problem demonstrated by the administrative agency
3 In its motion, Il Pastaio argued no triable issues of material
fact existed regarding the harassment claims against the
individual defendants only. It did not address whether triable
issues of fact existed on the harassment claim against Il Pastaio.
In his opposition to Il Pastaio’s motion for summary judgment,
Rivera stated he was dismissing the individual defendants.
4 In his opposition, Rivera dismissed the fifth cause of action
for retaliation under FEHA and the sixth cause of action for
retaliation under the Labor Code.
6
complaint which on its face charges ‘harassment’ on a single date
– not in keeping with the harassment allegations on which the
plaintiff seeks to rely in plaintiff[’]s Complaint – i.e. harassment
over . . . several years and by several persons.”
After reviewing the supplemental briefs, the trial court
issued a written order granting Il Pastaio’s motion. Regarding
the FEHA claims, the trial court found Rivera failed to exhaust
his administrative remedies because the administrative
complaint alleged harassment on a specific date only, whereas
the judicial complaint alleged harassment dating back several
years. It further found the Worker’s Compensation Exclusivity
Act barred Rivera’s cause of action for assault/battery against Il
Pastaio. With respect to Rivera’s claim for intentional infliction of
emotional distress (IIED), the court found that, as a matter of
law, “a single kick in the knee between two employees” is not
“outrageous conduct.” Lastly, the trial court found Rivera’s wage
and hour claims failed as a matter of law because Il Pastaio met
its initial burden on summary judgment and, in response, Rivera
did not present sufficient admissible evidence to create a material
issue of fact.
The court entered judgment in favor of Il Pastaio, and
Rivera timely appealed.
DISCUSSION
I. Standard of Review
“A party is entitled to summary judgment only if there is no
triable issue of material fact and the party is entitled to judgment
as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) A
defendant moving for summary judgment must show that one or
more elements of the plaintiff’s cause of action cannot be
established or that there is a complete defense. (Id., subd. (p)(2).)
7
If the defendant meets this burden, the burden shifts to the
plaintiff to present evidence creating a triable issue of material
fact. (Ibid.) A triable issue of fact exists if the evidence would
allow a reasonable trier of fact to find the fact in favor of the
party opposing summary judgment. (Aguilar v. Atlantic Richfield
Co. (2001) 25 Cal.4th 826, 850.)
“We review the trial court’s ruling on a summary judgment
motion de novo, liberally construe the evidence in favor of the
party opposing the motion, and resolve all doubts concerning the
evidence in favor of the opponent. (Miller v. Department of
Corrections (2005) 36 Cal.4th 446, 460.) We must affirm a
summary judgment if it is correct on any of the grounds asserted
in the trial court, regardless of the trial court’s stated reasons.”
(Grebing v. 24 Hour Fitness USA, Inc. (2015) 234 Cal.App.4th
631, 636-637.)
II. Fourth Cause of Action for Harassment and Seventh
Cause of Action for Failure to Prevent Harassment5
A. Exhaustion of Administrative Remedies
Before filing a civil action alleging FEHA violations, an
employee must exhaust his or her administrative remedies by
filing with the DFEH a “verified complaint, in writing, that shall
state the name and address of the person, employer, labor
organization, or employment agency alleged to have committed
the unlawful practice complained of, and that shall set forth the
particulars thereof and contain other information as may be
5 Il Pastaio also argues on appeal that the trial court
correctly found Rivera’s fifth and sixth causes of action fail as a
matter of law. Rivera confirms on appeal that he has abandoned
those claims.
8
required by [the DFEH].” (Gov. Code, § 12960, subd. (c); see also
Rojo v. Kliger (1990) 52 Cal.3d 65, 83 (Rojo) [“exhaustion of the
FEHA administrative remedy is a precondition to bringing a civil
suit on a statutory cause of action” (italics omitted)].)
In Rojo, our Supreme Court explained the purpose of the
FEHA exhaustion doctrine: “In cases appropriate for
administrative resolution, the exhaustion requirement serves the
important policy interests embodied in the act of resolving
disputes and eliminating unlawful employment practices by
conciliation [citation], as well as the salutory goals of easing the
burden on the court system, maximizing the use of
administrative agency expertise and capability to order and
monitor corrective measures, and providing a more economical
and less formal means of resolving the dispute [citation]. By
contrast, in those cases appropriate for judicial resolution, as
where the facts support a claim for compensatory or punitive
damages, the exhaustion requirement may nevertheless lead to
settlement and serve to eliminate the unlawful practice or
mitigate damages and, in any event, is not an impediment to civil
suit, in that the [DFEH’s] practice evidently is to issue a right-to-
sue letter [citation] at the employee’s request as a matter of
course [citations].” (Rojo, supra, 52 Cal.3d at pp. 83-84, fn.
omitted.)
To effectuate these purposes, the administrative
exhaustion requirement is satisfied if the FEHA claims in the
judicial complaint are “‘like and reasonably related to’” those in
the DFEH complaint (Wills v. Superior Court (2011) 195
Cal.App.4th 143, 154) or “likely to be uncovered in the course of
the DFEH investigation.” (Okoli v. Lockhead Technical
Operations Co. (1995) 36 Cal.App.4th 1607, 1617.)
9
In analyzing whether Rivera exhausted his administrative
remedies under Government Code section 12960, subdivision (c),
we first note that, in reality, there was no administrative process
to exhaust. That is because Rivera requested and received an
immediate right-to-sue notice on the same day he filed his DFEH
complaint. (See Cal. Code Regs., tit. 2, § 10005, subd. (a) [“Any
person claiming to be aggrieved by an employment practice made
unlawful by the FEHA may forgo having the department
investigate a complaint and instead obtain an immediate right-
to-sue notice”].) In any event, we conclude Rivera exhausted his
administrative remedies because the acts of harassment alleged
in his judicial complaint would likely be uncovered by an
investigation of his administrative complaint. (See Nazir v.
United Airlines, Inc. (2009) 178 Cal.App.4th 243, 268 [“[W]hat is
submitted to the DFEH must not only be construed liberally in
favor of plaintiff, it must be construed in light of what might be
uncovered by a reasonable investigation”].)
As discussed above, Rivera’s DFEH complaint alleged that
“on or about October 13, 2021” Rivera was “harassed because of
[his] race, ancestry, national origin . . . .” It provided no other
dates or any other particulars. An investigation into his
complaint, however, would almost certainly uncover the
allegations of harassment in 2018 and 2019. For example, an
interview with the restaurant managers would reveal that Il
Pastaio terminated Giacomo two days after the October 13, 2021
incident for misconduct. If the investigator inquired whether
Rivera had any issues with Giacomo previously, assuming
truthful responses, the managers would respond that Rivera had
complained about Giacomo’s allegedly harassing conduct towards
him on multiple occasions. Thus, in this case, reference to a single
10
date in the DFEH complaint should not result in the dismissal of
Rivera’s harassment claims, which include allegations of
harassment that occurred before the date indicated in the DFEH
complaint. The trial court, therefore, erred by granting summary
adjudication of Rivera’s harassment and failure to prevent
harassment claims based on a failure to exhaust administrative
remedies.6
B. Statute of Limitations
For the first time on appeal, Il Pastaio alternatively argues
Rivera’s allegations of harassment dating back to 2018 are time-
barred based on the then-applicable one-year statute of
limitations.7 It further argues the continuing violations doctrine
6 Il Pastaio’s reliance on Yurick v. Superior Court (1989) 209
Cal.App.3d 1116 (Yurick) is unavailing. There, the Court of
Appeal held the plaintiff was barred from bringing an age
harassment claim against an individual defendant where the
administrative charge alleged only gender discrimination based
on unequal pay and named the hospital as the sole
discriminating party. (Id. at pp. 1122-1123.) Here, Rivera’s
judicial complaint does not allege new causes of action against
unnamed parties. It merely alleges additional incidents of
harassment, which would likely be uncovered by an investigation
of Rivera’s administrative complaint.
7 Prior to January 1, 2020, the limitations period for filing an
administrative claim was one year. (See Gov. Code, § 12960,
former subd. (d).) “Effective January 1, 2020, the Legislature
amended section 12960 to ‘enlarge[ ] the time for filing a [DFEH]
claim to three years from the date of the challenged conduct.’”
(Guzman v. NBA Automotive, Inc. (2021) 68 Cal.App.5th 1109,
1116, fn. 7; see Gov. Code, 12960, subd. (e)(5).) The three-year
statute of limitations is not retroactive. (See Gov. Code, § 12960,
11
does not save Rivera’s claims. (See Richards v. CH2M Hill, Inc.
(2001) 26 Cal.4th 798, 823 (Richards) [where continuing
violations are alleged, a complaint arising out of FEHA is not
time barred by the statute of limitations if any act occurred
within the limitations period].) Il Pastaio forfeited these
arguments, however, by not moving for summary judgment on
statute of limitations grounds. (See Newton v. Clemons (2003)
110 Cal.App.4th 1, 11 (Newton) [“Generally, issues raised for the
first time on appeal which were not litigated in the trial court are
[forfeited]”].)
In any event, we reject this argument on the merits.
Perhaps because this argument was not developed below, the
record is not clear regarding the dates of the alleged harassment.
Although Rivera testified in his deposition that some of the acts
occurred in 2018, he also testified that he complained to
managers about ongoing harassment in 2019. And, according to
Rivera, although the harassment did not stop, he ignored it until
the incident on October 13, 2021.
Il Pastaio argues the continuing violation doctrine is
inapplicable because the harassment acquired “permanence” in
2018. (See Richards, supra, 26 Cal.4th at p. 802 [the
continuing violation doctrine applies when the actions are similar
in kind, occur with sufficient frequency, and they have “not
acquired a degree of ‘permanence’ so that employees are on
notice that further efforts at informal conciliation with the
employer to . . . end harassment would be futile”].) But there is no
evidence in the record that Il Pastaio ever made it clear to Rivera
subd. (f)(3) [“This subdivision is not intended to revive claims
that have already lapsed”].)
12
that it would not attempt to address his complaints. Thus, Il
Pastaio has not met its burden to show the undisputed facts
support its statute of limitations affirmative defense. (See Shiver
v. Laramee (2018) 24 Cal.App.5th 395, 400 [A “‘“defendant
moving for summary judgment based upon the assertion of an
affirmative defense . . . ‘has the initial burden to show that
undisputed facts support each element of the affirmative
defense’ . . . .”’”].) We therefore conclude that, on this record, Il
Pastaio is not entitled to summary adjudication of Rivera’s
harassment and failure to prevent harassment claims on statute
of limitations grounds.
III. Eighth Cause of Action for Assault and Battery
Il Pastaio moved for summary adjudication of Rivera’s
eighth cause of action on the ground that workers’ compensation
is the exclusive remedy for the assault and battery he allegedly
suffered.
Workers’ compensation law contains broadly worded
exclusivity provisions. Labor Code section 3600, subdivision (a)
provides that “subject to certain particular exceptions and
conditions, workers’ compensation liability, ‘in lieu of any other
liability whatsoever’ will exist ‘against an employer for any injury
sustained by his or her employees arising out of and in the course
of the employment.’” (Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701,
708, quoting Lab. Code, § 3600, subd. (a).) Labor Code section
3601, subdivision (a)(1) establishes an exception to the exclusivity
rule permitting a cause of action for assault and battery against
an employee “[w]hen the injury or death is proximately caused by
the willful and unprovoked physical act of aggression of the other
employee.” But Labor Code section 3601, subdivision (b)
“unambiguously prohibits imposing civil liability on an employer
13
for one employee’s assault and battery of another.”8 (Fretland v.
County of Humboldt (1999) 69 Cal.App.4th 1478, 1487.) Courts
have recognized, however, that “an employer can be held civilly
liable as a joint participant in assaultive conduct committed by
its employee pursuant to the doctrine of ratification.” (Id. at pp.
1489-1490.) “‘The failure to discharge an employee who has
committed misconduct may be evidence of ratification. [Citation.]
The theory of ratification is generally applied where an employer
fails to investigate or respond to charges that an employee
committed an intentional tort, such as assault or battery.’” (C.R.
v. Tenet Healthcare Corp. (2009) 169 Cal.App.4th 1094, 1110.)
Rivera contends triable issues of fact exist regarding
whether Il Pastaio ratified the tortious conduct. We disagree. It is
undisputed Il Pastaio immediately investigated the incident on
October 13, 2021, and terminated Giacomo for misconduct two
days later. Rivera argues Giacomo is now employed at another
restaurant run or owned by the same individuals that run Il
Pastaio. But even if true, another company’s hiring decisions
have no bearing on whether Il Pastaio ratified the tortious
conduct. Il Pastaio indisputably rejected the tortious conduct by
immediately terminating Giacomo, and he has never returned (or
been invited to return) to Il Pastaio.
Rivera also relies on his deposition testimony that Giacomo
bumped into him with his shoulder on three occasions and he
8 Labor Code section 3601, subdivision (b) provides: “In no
event, either by legal action or by agreement whether entered
into by the other employee or on his or her behalf, shall the
employer be held liable, directly or indirectly, for damages
awarded against, or for a liability incurred by the other employee
under paragraph (1) or (2) of subdivision (a).”
14
complained to his supervisor about these incidents. The
testimony is not further developed, however. There is no
testimony establishing Il Pastaio failed to investigate or respond
to Rivera’s complaints of Giacomo bumping Rivera with his
shoulder. Accordingly, Rivera failed to present evidence creating
a triable issue of fact regarding whether Il Pastaio ratified
Giacomo’s alleged tortious conduct. The trial court, therefore,
properly granted summary adjudication of Rivera’s assault and
battery claim based on the workers’ compensation exclusivity
doctrine.
IV. Ninth Cause of Action for IIED
“The elements of the tort of intentional infliction of
emotional distress are: ‘“(1) extreme and outrageous conduct by
the defendant with the intention of causing, or reckless disregard
of the probability of causing, emotional distress; (2) the plaintiff's
suffering severe or extreme emotional distress; and (3) actual and
proximate causation of the emotional distress by the defendant’s
outrageous conduct. . . .” Conduct to be outrageous must be so
extreme as to exceed all bounds of that usually tolerated in a
civilized community.’” (Christensen v. Superior Court (1991) 54
Cal.3d 868, 903.)
Il Pastaio moved for summary adjudication of Rivera’s IIED
claim on the ground that the “act of striking Rivera in the knee
did not amount to ‘extreme and outrageous conduct’” and thus,
Rivera cannot establish all elements of his claim.9 The trial court
9 For the first time on appeal, Il Pastaio argues Rivera also
failed to show he suffered severe emotional distress. We deem
this argument forfeited. (See Newton, supra, 110 Cal.App.4th at
p. 11.)
15
agreed, characterizing the incident on October 13, 2021 as a
“[m]inor skirmish[ ]” that, as a matter of law, is not “the type of
conduct that ‘no civilized society should be expected to endure.’”
We are unconvinced.
It is undisputed Giacomo intentionally struck Rivera in the
knee after yelling at him while they were working. And, based on
Rivera’s deposition testimony, this intentional act of physical
aggression was motivated by discriminatory animus based on
ethnicity. We acknowledge that “[o]rdinarily mere insulting
language, without more, does not constitute outrageous conduct.”
(Kiseskey v. Carpenters’ Trust for So. California (1983) 144
Cal.App.3d 222, 230.) But here, we have more (i.e., alleged
disparaging comments motivated by anti-Latino biases combined
with a physical assault). If proven, a jury could reasonably find
that Giacomo’s conduct was extreme and outrageous. The trial
court erred by concluding otherwise.
V. Wage and Hour Claims: Thirteenth Through
Fifteenth Causes of Action
A. Failure to Pay All Wages (Thirteenth Cause of
Action)
Rivera contends the trial court erred by granting summary
adjudication of his claim for failure to pay all wages because
issues of material fact exist regarding whether he worked off the
clock. For a claim for failure to pay wages based on off-the-clock
work, however, “liability is contingent on proof [the employer]
knew or should have known off-the-clock work was occurring.”
(Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th
1004, 1051 (Brinker).) That is because when employees are
clocked out, there is a “presumption they are doing no work . . . .”
(Ibid.) Rivera presents no evidence that Il Pastaio knew, or
16
should have known, he was working off the clock on occasions
other than the times he allegedly reported the issue to
management.
Rivera testified at his deposition that throughout his
employment, there were times he would work about 30 minutes
before clocking in, and other times when he would clock out and
continue working. He complained to one of the managers, Nina
Chua, about “five times” that he had worked off the clock. Chua
responded that “she was going to take care of it” and that he
should not work off the clock. It was Rivera’s understanding that
Chua put the time he allegedly worked off the clock back into the
system for him, and he was ultimately paid. Thus, despite the
restaurant’s policy expressly prohibiting off-the-clock work, when
reported, Rivera’s timesheets were corrected and he was paid
accordingly. Il Pastaio would have no reason to know that,
despite management’s directive not to work off the clock (and in
violation of company policy), Rivera continued to do so and did
not report it to management. The trial court, therefore, properly
granted summary adjudication of Rivera’s claim for failure to pay
all wages based on off-the-clock work.
B. Failure to Pay Overtime Wages (Fourteenth Cause
of Action)
“In order to demonstrate error, an appellant must supply
the reviewing court with some cogent argument supported by
legal analysis and citation to the record.” (See City of Santa
Maria v. Adam (2012) 211 Cal.App.4th 266, 286-287.) Rivera has
not done so with respect to his fourteenth cause of action.
Rivera’s opening brief on appeal contains no argument that
Il Pastaio failed to pay overtime wages. In his reply brief, Rivera
again fails to provide any argument or citations to the record
17
regarding overtime wages, claiming only that he preserved his
argument on appeal because his opening brief includes a header
stating summary judgment was improperly granted on the
thirteenth through sixteenth causes of action. We disagree, and
therefore deem this issue forfeited. (See Sporn v. Home Depot
USA, Inc. (2005) 126 Cal.App.4th 1294, 1303 [“Contentions on
appeal are waived by a party who fails to support them with
reasoned argument and citations to authority”].) To the extent
this cause of action is premised on the same arguments made in
support of Rivera’s claim for failure to pay wages, we affirm the
grant of summary adjudication of this claim for the same reasons
we affirm summary adjudication of Rivera’s thirteenth cause of
action for failure to pay wages.
C. Failure to Provide Meal and Rest Periods
(Fifteenth Cause of Action)
On appeal, Rivera’s argument regarding missed meal and
rest breaks is limited to the following: “Appellant is clear that he
did work through meal and rest breaks. [Citation.] Appellant
provided clear evidence via his deposition that he indeed missed
those breaks.” Whether Rivera missed his meal breaks, however,
is not the standard for determining whether Il Pastaio is liable
for failing to provide meal and rest breaks under Labor Code
sections 512 and 226.7, subdivision (a).10
Our Supreme Court held that an employer’s duty
concerning meal breaks is “to provide a meal period to its
employees.” (Brinker, supra, 53 Cal.4th at p. 1040.) “The
10 Labor Code sections 512 and 226.7 obligate employers to
afford their nonexempt employees meal periods and rest periods
during the workday.
18
employer satisfies this obligation if it relieves its employees of all
duty, relinquishes control over their activities and permits them
a reasonable opportunity to take an uninterrupted 30-minute
break, and does not impede or discourage them from doing so.”
(Ibid.) “[T]he employer is not obligated to police meal breaks and
ensure no work thereafter is performed. Bona fide relief from
duty and the relinquishing of control satisfies the employer’s
obligations, and work by a relieved employee during a meal break
does not thereby place the employer in violation of its obligations
and create liability . . . .” (Id. at pp. 1040-1041.) Similar principles
apply to rest breaks. (See David v. Queen of Valley Medical
Center (2020) 51 Cal.App.5th 653, 661.)
Il Pastaio provided meal and rest breaks as required by
law. Per restaurant policy, employees were provided an
uninterrupted meal period of at least 30 minutes within the first
five hours of their shift, and a 10-minute rest break for every
“four [ ] hours of work or major portion thereof.” It is also Il
Pastaio’s policy that employees who miss a meal or rest break
must complete a form identifying the type of break missed and
the reason for not taking a timely break so that it can be
determined if premium pay is owed to the employee for a missed
break. At his deposition, Rivera admitted he was generally in
charge of setting when both he and the other employees would
take a break: “I would send one of my coworkers and then
whenever he would return, I would send the next one.” According
to Rivera, however, “there were instances where there was just
too much work, and . . . [he] just couldn’t eat.” But Rivera
admitted that when he told a manager he skipped a break, he
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was told “[Il Pastaio] would pay for it.”11 Rivera also testified
there were times his supervisor instructed him to take a meal
break, and the supervisor covered for him while he took his
break.
This evidence establishes Il Pastaio provided breaks as
required by law. Rivera did not testify he was prevented,
impeded, or discouraged from taking breaks—at most, his
testimony demonstrates he chose not to take a break based on his
belief the restaurant was too busy. An employee’s decision not to
take a break (and not report it), however, is insufficient to create
a triable issue of fact regarding an employer’s alleged failure to
provide breaks under Brinker.
VI. Derivative Causes of Action for Failure to Provide
Accurate Wage Statements (Sixteenth Cause of
Action) and Unlawful/Unfair Business Practices
(Seventeenth Cause of Action)
Rivera’s claims for failure to provide accurate wage
statements under Labor Code section 226, and for violation of
Business and Professions Code § 17200 (UCL) are premised
entirely on his allegations regarding off-the-clock work and
missed meal and rest periods. Because, as discussed above, the
underlying claims fail, the derivative claims also fail. (See, e.g.,
Javorsky v. Western Athletic Clubs, Inc. (2015) 242 Cal.App.4th
1386, 1408 [summarily adjudicating UCL claim where underlying
claim for statutory violation was also summarily adjudicated].)
11 Rivera’s paystubs show he was paid a “Meal/Rest Penalty”
at his hourly rate on two occasions.
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DISPOSITION
The judgment is reversed. The trial court is directed to
vacate its order granting Il Pastaio’s motion for summary
judgment and enter a new order: granting summary adjudication
of the fifth and sixth causes of action (retaliation under FEHA
and the Labor Code), the eighth cause of action (assault and
battery), and the thirteenth through seventeenth causes of action
(wage-and-hour claims and UCL), and denying summary
adjudication of the fourth and seventh causes of action (FEHA
harassment and failure to prevent harassment claims) and the
ninth cause of action (IIED). The parties are to bear their own
costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURREY, P. J.
We concur:
MORI, J.
ZUKIN, J.
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