Cueva v. Millennium Products CA2/1 ( 2024 )

Filed 10/21/24 Cueva v. Millennium Products CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
BLANCA CUEVA et al., B323975
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BC662114)
v.
MILLENNIUM PRODUCTS, INC.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Stephanie M. Bowick, Judge. Affirmed.
Law Offices of David R. Greifinger, David R. Greifinger and
Calvin A. Marshall, for Plaintiffs and Appellants.
Proskauer Rose, Steven J. Pearlman and Jonathan P.
Slowik; Attwood Gregg, Jessica C. Gregg and Joel P. Kelly for
Defendant and Respondent.
____________________________
Plaintiffs Blanca Cueva, Kelyn Vargas, and Antonio
Escobar Fuentes appeal from a judgment in favor of their former
employer, Millennium Products, Inc. (Millennium), in an action
alleging wage-and-hour and other Labor Code violations.
Plaintiffs raise the following contentions on appeal: 1) The
time limits the trial court imposed on presentation of evidence
improperly prohibited plaintiffs from cross-examining all of
Millennium’s witnesses; 2) the court erred by not shifting the
burden of proof to Millennium when Millennium failed to produce
plaintiffs’ time records and wage statements in discovery;
3) substantial evidence did not support the court’s finding that
Millennium provided plaintiffs with wage statements along with
their paychecks, or that Millennium paid plaintiffs for time spent
standing in line before work. In their reply brief, plaintiffs
additionally argue the court’s findings in favor of Millennium on
overtime, break periods, and payment of wages upon termination
are not supported by substantial evidence.
We reject these contentions. Plaintiffs forfeited their
challenge to the time limits because their trial counsel agreed to
the time limits and never objected or requested additional time
when the court made clear counsel was running out of time to
cross-examine some defense witnesses. Any error in not shifting
the burden of proof was harmless, because the court made clear
in its statement of decision it would rule in favor of Millennium
even had the burden shifted. Substantial evidence, primarily the
testimony of Millennium’s chief executive officer and former chief
operating officer, supported the findings Millennium had
provided wage statements and paid employees for time standing
in line. The arguments plaintiffs raise for the first time in reply
are forfeited.
2
Accordingly, we affirm the judgment.
BACKGROUND
1. Complaint and trial
Millennium, today known as GT’s Living Foods,
manufactures and bottles the beverage kombucha. Plaintiff
Cueva testified she worked for Millennium from September 8,
2009 to April 12, 2013. Plaintiff Fuentes, Cueva’s ex-husband,
testified he worked for Millennium from September 1, 2009 to
around September 11, 2011. Plaintiff Vargas testified she
worked for Millennium from April 28, 2011 to February 26, 2013.
All were hourly employees.
On May 22, 2017, plaintiffs filed a complaint against
Millennium asserting causes of action for failure to pay overtime
compensation, failure to provide meal and rest periods, failure to
provide wage statements, failure to pay minimum wage, failure
to pay wages upon termination of employment, failure to provide
adequate seating, and unfair competition.1 Plaintiffs later
dismissed the cause of action for failure to provide adequate
seating.
The court conducted an eight-day bench trial. The three
plaintiffs testified, and also called as witnesses their former
coworker Alma Mateos, expert witness Erik Lietzow, and
Millennium’s founder and chief executive officer George Thomas
“G.T.” Dave. Millennium called as witnesses its former chief
operating officer Ramon Canek and three current employees,
1The complaint also listed as plaintiffs Geovanny Cortez,
Maria Lara, and Mayra Blanco, all of whom settled their claims
with Millennium and are not party to this appeal.
3
Walter Lozano, Harim Cantillano, and Levis Emiezer Peralta
Cantillano. Lozano, Cantillano, and Peralta Cantillano began
working at Millennium in 2012.
We briefly summarize the evidence relevant to this appeal.
a. Overtime
Cueva testified she worked five days a week, with a shift
beginning at either 4:00 a.m. or 5:30 a.m. and ending at
11:00 p.m. After an injury, her shift shortened to 8:00 a.m. to
4:30 p.m. for several months in 2011 and 2012, after which she
returned to working 4:00 a.m. to 11:00 p.m. Fuentes similarly
testified his shifts would start at either 4:00 a.m. or 5:30 a.m. and
end at 11:00 p.m. Vargas testified her shifts began at 3:00 or
4:00 a.m. and ended between 9:30 and 10:00 p.m. Mateos
testified her work start times varied between 3:00 and 6:00 a.m.,
and her shifts ended at 6:00 or 7:00 p.m.
Dave and Canek testified that employees were never
required to work more than eight hours in a day. Lozano,
Cantillano, and Peralta Cantillano all testified they usually
worked eight hours a day. Cantillano and Peralta Cantillano
testified that when they worked overtime, they were paid
time-and-a-half.
A workers’ compensation form signed by Cueva in
May 2013 indicated she worked 40 hours a week.
b. Rest and meal breaks
The plaintiffs all testified they were allowed a 25-minute
break every morning at 10:30 a.m., and then a 25-minute lunch
break, with no other breaks during the workday. Mateos testified
she received only a lunch break and one other break. She
was not sure if the lunch break was shorter than 30 minutes.
4
Dave testified Millennium provided employees with two
meal breaks for breakfast and lunch, and two rest periods. The
rest breaks initially were 10 minutes long, but later Millennium
extended them to 15 minutes.
Canek testified employees would take a 10- or 15-minute
break about an hour and a half after work began. There was a
30-minute lunch break around 11:00 a.m. Later in the day there
was another 30-minute break and another 10- or 15-minute
break.
Lozano testified he had a breakfast break at around
10:00 a.m. every day for “25, 30 minutes.” There was a second
break for lunch for “about 30 minutes.” Employees could take
two additional breaks at any time for 10 or 15 minutes.
Cantillano testified there were two 10-minute breaks and a
30-minute break each day. Peralta Cantillano testified similarly
to Cantillano, but said the rest breaks were 10 to 15 minutes
long.
c. Lining up at the start of the workday
Cueva, Fuentes, and Mateos testified Millennium required
them to line up outside the work facility 15 minutes before the
start of their shift. Vargas similarly testified she had to line up
before her shift started.
Dave testified that although theoretically an employee
could line up before the facility door opened, employees were not
required to come in before the start of their shift.2 Dave further
2 Dave’s exact testimony was, “Somebody came in at 7:30
even though the start time is 8 o’clock, and they stood by the
door? You know, yes, potentially, they were standing by the door;
5
testified that when the facility door opened at the start of the
work day, all employees were documented on a time sheet as
starting work at that time, even if, because of the check-in line,
some employees did not actually enter the facility until a few
minutes later. Canek similarly stated that when he opened the
door he would clock in the first employee, “and it was the same
time for everybody.” Later, when asked how the time was
reported for the first employee versus the last employee to enter,
he stated, “It was the same for both, whether you were the first
or the last.” “The first person always started.”
Lozano testified employees would form a line at the
beginning of work for Canek to check off on a list who had
arrived. Cantillano testified the employees would line up inside
the facility when work began for Canek to write down who had
arrived and when. Peralta Cantillano similarly testified
employees would line up for Canek to document their arrival.
d. Wage statements
Cueva testified Millennium sometimes paid her in cash,
sometimes by check, and she did not start receiving wage
statements with her paychecks until over a year into her
employment. Fuentes and Mateos testified they were sometimes
paid in cash. Vargas testified she was sometimes paid in cash
and she did not start receiving paystubs with her paychecks until
she had been employed for about six months.
Dave and Canek denied paying employees in cash. Dave
testified Millennium provided wage statements to plaintiffs via
and they weren’t clocked in. But they weren’t working. They
weren’t scheduled to come in [until] 8:00. It’s the same
circumstance if somebody sits in their car.”
6
payroll provider ADP, who attached wage statements to
plaintiffs’ paychecks. Lozano and Cantillano testified they were
never paid in cash.
Although Millennium produced plaintiffs’ payroll records
from ADP, Millennium does not dispute that the produced
records only cover a portion of each plaintiff’s period of
employment. Cueva’s records date back to January 2011,
Fuentes’ records date back to April 2011, and Vargas’ records
date back to September 2011. Dave testified there had been data
loss when Millennium switched from one ADP system to another
in 2014.
2. Statement of decision and judgment
The trial court issued a statement of decision in favor of
Millennium on May 25, 2022. The court found “that Plaintiffs
and Plaintiffs’ witnesses were not credible and were often either
impeached on cross-examination and/or contradicted themselves
during their testimony. Plaintiffs’ testimony was not credible
regarding the excessive number of hours they claimed to have
worked each day and the lack of breaks. The Court also found
each Plaintiff’s testimony regarding payment in cash not credible.
The testimony of Plaintiffs was unreliable and often appeared to
be rehearsed because they were identical in many respects. On
the other hand, the Court found Defendant’s witnesses credible.”
The court found, inter alia, that Millennium had provided
plaintiffs with 30-minute uninterrupted meal periods and 10- to
15-minute uninterrupted break periods. The court further found
plaintiffs worked eight hours a day, 40 hours a week, and did not
work overtime during the relevant time period. The court found
ADP provided paystubs indicating the hours worked.
7
The court found insufficient evidence that Millennium had
a custom and practice of not providing compliant meal periods,
noting, “Plaintiffs never reported a meal period violation and
each always certified that their timesheets were accurate.
Plaintiffs never complained to their supervisors regarding meal
period violations or improper shortening of their meal periods.”
Thus, “there was no basis to list any meal and rest break
premium hours on the wage statements. The Court finds no
wage statement violations under Labor Code section 226
[requiring employers to provide wage statements to employees].”
The court found, “Plaintiffs failed to meet their burden of
proving that they performed overtime work” or “performed work
for which they were not paid. [¶] Notwithstanding the failure to
shift the burden to Defendant, the Court finds that Defendant
has submitted sufficient admissible evidence that it complied
with its obligations under the law.”
The court entered judgment in favor of Millennium.
Plaintiffs timely appealed.
STANDARD OF REVIEW
“On appeal from a judgment based on a statement of
decision after a bench trial, we review the trial court’s
conclusions of law de novo and its findings of fact for
substantial evidence. [Citation.] Under the deferential
substantial evidence standard of review, we ‘liberally construe[ ]’
findings of fact ‘to support the judgment and we consider the
evidence in the light most favorable to the prevailing party,
drawing all reasonable inferences in support of the findings.’
[Citation.] ‘We may not reweigh the evidence and are bound by
the trial court’s credibility determinations.’ [Citation.]”
(McPherson v. EF Intercultural Foundation, Inc. (2020)
8
47 Cal.App.5th 243, 257 (McPherson).) “The testimony of a single
witness may be sufficient to constitute substantial evidence.”
(Lui v. City and County of San Francisco (2012) 211 Cal.App.4th
962, 969.)
DISCUSSION
A. Plaintiffs Have Forfeited Their Contention They
Were Denied an Opportunity To Cross-Examine
Certain Defense Witnesses
Plaintiffs argue the court denied them due process by not
allowing cross-examination of Millennium’s three employee
witnesses, Lozano, Cantillano, and Peralta Cantillano. They
have forfeited this challenge for failure to raise it below.
1. Additional background
a. The trial court imposes time limits
Before trial, the parties submitted a joint witness list
identifying 12 witnesses for plaintiffs and 10 witnesses for
Millennium. For each witness, the parties provided a time
estimate for direct examination, a separate time estimate for
cross-examination, and another estimate for redirect
examination. The total time estimate for all witnesses was
77 hours.
The trial court ordered the parties to file a revised joint
witness list with time estimates totaling no more than 25 hours,
consistent with what the parties estimated would be a five-day
trial. The parties did not do so. Accordingly, on the first day of
trial the court stated, “I’m going to just give you time estimates.
We’ll just use the witness list that you have. The parties can use
however much time they want per witness, eliminate a witness—
9
I’m going to go off the old witness list, and you just tell me who is
going to come up next. And you can either save your witness
time for that person or go less than that witness time estimate,
but you’re going [to] get a grand total.”
The court continued, “So I’m going to give plaintiff eleven
hours for your opening side of the case. [¶] Defense will get
eleven hours for your side of the case. [¶] And then we’ll find out
from plaintiff if there’s any need for rebuttal. [¶] And with that,
we’ll add up to approximately [a] five-day court trial. We may
have some extra time to talk about closing argument, et cetera.”
The court continued, “And you can use your time as you
will. I’ll keep track. And then I’ll give you warnings that, okay,
you’re getting close to your end, or tell you as you go along,
perhaps, how much time you’ve used for you to keep track. But
I’ll let you use your time as you will.”
Plaintiff’s counsel stated, “That’s fine,” and defense counsel
agreed to the plan as well.
b. Colloquies regarding time usage
During plaintiffs’ direct examination of Dave on the first
day of trial, the court stated to plaintiffs’ counsel, “I want to let
you know, Mr. Ozzello, we’ve been going quite a while with this
witness. The original estimate on the old witnesses list said only
2.5 hours.” Plaintiffs’ counsel responded, “I understand, Your
Honor. I’ll work with my 11,” referring to the 11 hours to which
the court had limited him.
On the fourth day of trial, plaintiffs agreed to allow
Millennium to call Canek out of order, before plaintiffs had
finished calling all their witnesses. During plaintiffs’ cross-
examination of Canek, the court inquired whether plaintiff’s
counsel would finish by noon, and plaintiffs’ counsel stated he
10
would not. The court stated, “Okay. Just asking. I want you to
watch your time, Mr. Ozzello. I’m just reminding you. I haven’t
had the chance to add up your time, but you’re getting close.”
Plaintiff’s counsel proceeded with cross-examination without
comment.
Later that same day, the court indicated it had added up
the parties’ time usage—plaintiffs had used eight hours and
45 minutes, and Millennium had used four hours and 15 minutes.
Counsel did not comment and the trial proceeded.
The next day, the fifth day of trial, plaintiffs’ counsel
informed the court he intended to call additional witnesses. The
court stated, “Here’s the thing, I haven’t had a chance to finish
tabulating, but as of yesterday, I gave Mr. Ozzello his time.
What might end up happening is you won’t get any cross-
examination time when defense finishes calling his witnesses. As
I said, I gave you your amount of time, carving out rebuttal as a
separate. So I will have a tabulation by tomorrow morning, but I
have to admit, you’re probably not going to get any time when it
come to defense putting on their witnesses in their case in terms
of cross-exam.”
Plaintiffs’ counsel responded, “If Your Honor wants to make
that order, that’s fine.”
The court then stated, “I’m not making an order,
Mr. Ozzello. My order was in the beginning that, because the
parties didn’t give me a witness list revised that had been
ordered, I went ahead and just gave you time based on your
estimate of a five-day trial, so to speak. I divided the time up and
gave you hours to use as you wish. You can use the hours on one
person or divide it up, and it’s up to you to keep track of your
11
time and figure out how you want to use your time and how and
where.”
The court continued, “I told you, when the time is up, I will
tell you time is up. I gave you an update yesterday of how much
time you had, which was under three hours. So I agree with
[defense counsel] that you’re probably on the edge of using all of
your time, and I’m telling you it looks like you probably won’t
have any time left when they put on their witnesses. I said I
would be a little flexible, but if you’ve now decided to change your
strategy, it’s for you to decide how to do it.”
Plaintiffs’ counsel stated he had not changed his strategy,
and then turned to another topic of discussion. Shortly
thereafter, plaintiffs called Mateos to the stand, and the next day
called their expert Lietzow.
c. The court precludes plaintiffs from cross-
examining Lozano for lack of remaining
time
Following Lietzow’s testimony, Millennium called Lozano.
When defense counsel had completed direct examination, the
court stated, “Mr. Ozzello, you’ve run out of time on cross too. I
announced in the beginning the 11 hours included everything.”
Plaintiffs’ counsel responded, “You’re not going to give me
an opportunity to cross this witness?”
The court stated, “Mr. Ozzello, when we started this, I
broke up the time. And the same time goes for defense.
Whenever they cross-examine, I’m documenting that time. So all
the time I counted against plaintiffs, not only went for direct, but
any other use of time . . . .” The court explained it had not
deducted time for colloquies regarding witnesses or objections.
Rather, “[i]t was just strictly whenever a witness took the stand,
12
whenever anybody either did direct or cross I counted, and that
was how I said in the beginning that that’s how we’re going to
count time. And I said you use your time how you want. [¶] So
plaintiff doesn’t have any more time to use as part of
examination. You will still have time for closing, if that’s what
the parties decide to do for closing arguments.”
The court then invited Millennium to call its next witness.
Millennium proceeded to call Cantillano followed by Peralta
Cantillano, both of whom the court excused following direct
examination, without plaintiffs’ counsel cross-examining.
After the trial court issued a tentative statement of
decision, plaintiffs filed written objections including, inter alia,
“The Court . . . denied Plaintiffs the opportunity to cross examine
the three employee witnesses presented by Defendant.”
2. Analysis
Plaintiffs argue the trial court did not give them fair notice
that their 11-hour allotment included cross-examination, because
when the court first imposed the time limitation the court said
the limit applied to plaintiff’s “opening side of the case,” which
plaintiffs contend referred solely to their case-in-chief. Plaintiffs
further argue the time limitation was unreasonable because
unlike Millennium, most of their witnesses required interpreters,
which slowed down the testimony. Plaintiffs also assert, “[I]t was
impossible for [plaintiffs] to know the amount of time necessary
for cross-examination until Millennium called its witnesses. An
informed advance apportionment of time for cross-examination
would have been impossible.”
Plaintiffs did not raise any of these objections below. The
general rule is issues not raised in the trial court cannot be
13
asserted on appeal. (GoTek Energy, Inc. v. SoCal IP Law
Group, LLP (2016) 3 Cal.App.5th 1240, 1248.) Our Supreme
Court explained this rule thusly: “ ‘The circumstances may
involve such intentional acts or acquiescence as to be
appropriately classified under the headings of estoppel or
waiver . . . . Often, however, the explanation is simply that it is
unfair to the trial judge and to the adverse party to take
advantage of an error on appeal when it could easily have been
corrected at the trial.’ [Citation.]” (Doers v. Golden Gate
Bridge etc. Dist. (1979) 23 Cal.3d 180, 184–185, fn. 1, italics
omitted.) The rule applies here, where plaintiffs could have,
but did not, seek to correct the court’s purported errors during
trial.
As an initial matter, we are skeptical that plaintiffs’
counsel did not understand the trial court’s allotment of 11 hours
included cross-examination. The parties’ original witness list
broke down the time estimates into direct, cross, and redirect
examination. The court stated it was working off that list when
it allotted the 11 hours, thus indicating, at least by implication,
that the 11 hours would be broken down in the same manner.
The fact that the original witness list provided time estimates for
cross-examination also belies plaintiffs’ assertion on appeal that
such estimates were “impossible.”
Assuming arguendo the court’s initial allotment of time
was ambiguous, the court later clarified that allotment. On the
fourth day of trial, during plaintiffs’ cross-examination of Canek,
the court warned plaintiffs’ counsel to watch his time, and that
he was getting close to using up his allotment. This warning
notified plaintiffs’ counsel the court was counting cross-
examination time towards the 11-hour allotment.
14
If that was not clear enough, the next day the court
expressly stated that if plaintiffs called additional witnesses, they
were likely to run out of time and be unable to cross-examine
Millennium’s witnesses. At that point, there could be no doubt
that cross-examination counted towards the 11 hours.
At none of these stages of trial did plaintiffs’ counsel say
anything to the court to indicate he misunderstood that the time
limit included cross-examination. He never objected to the
11-hour time limit. He never asked for an extension of time to
cross-examine the defense witnesses. Indeed, when the court
warned him that calling additional witnesses might use up his
time for cross-examination, he responded, “If Your Honor wants
to make that order, that’s fine,” and proceeded to call additional
witnesses.
Plaintiffs argue their counsel’s statement should not be
interpreted as acquiescence, but rather “made in the heat of
argument with the court about the court’s disallowing cross-
examination.” We detect no “heat of argument” from that section
of the transcript—plaintiffs’ counsel stated he intended to call
more witnesses, the court warned him he would use up his cross-
examination time, and counsel then said the court could make
that order. Regardless, even if we do not interpret that
statement as express acquiescence, it does not constitute an
objection.
Nor did plaintiffs’ counsel object the next day when the
court would not allow him to cross-examine Lozano. Counsel
asked for cross-examination, the court reminded him of time
allocation, and counsel said nothing further. Again, to the extent
counsel misunderstood the time allocation to include cross-
examination, or otherwise thought the time allocation
15
insufficient, it was incumbent on him to raise it with the court,
and he did not.
Plaintiffs contend we should excuse their forfeiture because
objection would have been futile. (See Teacher v. California
Western School of Law (2022) 77 Cal.App.5th 111, 129.) In
support, plaintiffs point to a colloquy in which the trial court
indicated it would dock their allotted time it they wished to
continue arguing a particular issue. In quoting the colloquy,
plaintiffs use an ellipsis to suggest the issue they were arguing
was the lack of cross-examination. This mischaracterizes the
record. Plaintiffs’ ellipsis eliminates nearly a page of reporter’s
transcript, in which it is clear the court and counsel had moved
on to another topic, specifically whether the parties could rely on
depositions taken in another case.3 It was that topic on which
3 The colloquy omitted by the ellipsis included the court
stating that if plaintiffs called additional witnesses they
“probably won’t have any time left” for cross-examination, and
that if plaintiffs had “now decided to change your strategy, it’s for
you to decide how to do it.” Plaintiffs’ counsel stated, “I haven’t
changed my strategy Your Honor. But let me just put one other
thing on the record, and that is that counsel keeps
misrepresenting that all of the deposition transcripts in Mateos [a
separate lawsuit brought by other Millennium employees
including plaintiffs’ witness Mateos] were agreed that they can be
used in this case. That was not the agreement. The agreement
was on the record of a deposition of Mr. Dave because they didn’t
want to keep bringing Mr. Dave back—.” The court interrupted:
“I don’t want to talk about this, Mr. Ozzello, because, I think, I
represented to you what I understood the state of this case to be,
meaning that you all would have worked out about these
deposition transcripts. That’s all I’m taking away from any
stipulation you might have had, and I thought I said to your
16
the court stated it would dock plaintiffs’ time if they continued
arguing the point. The court did not state it would dock
plaintiffs’ time if they argued about the time limitations
themselves, and thus the record does not establish such
argument would have been futile.
Plaintiffs do not contend their objections to the statement
of decision in which they protested the lack of cross-examination
preserved the issue for appeal. That objection came after trial
had concluded and was untimely.
B. Any Failure To Shift the Burden of Proof Was
Harmless
Plaintiffs argue Millennium failed to produce time records
and wage statements for a portion of their employment period.
Plaintiffs claim the trial court therefore should have shifted the
burden of proof to Millennium to establish it had complied with
overtime and meal and rest break requirements during the
periods for which records were missing.
credit that I hadn’t found any fault on your part in terms of the
transcripts. I don’t want to hear a lot of argument about what
happened in the Mateos case. It’s what happened in this case.
[¶] I don’t want to go any further unless you want to use more of
your time to argue. I will let you argue as much as you want on
this point, but I’m going to dock you time on it. Okay. I haven’t
been docking anybody’s time when it comes to these sidebars and
discussions, off the record out of the witnesses’ earshot
discussions we’ve been having, trying to be fair to the parties.
But if you want me to start doing that, if you want to use some of
your time left, Mr. Ozzello, I give you the floor to argue whatever
you’d like to do for the record as to anything right now before you
call your next witness. You’re free to do so.”
17
Plaintiffs assert two bases for their burden-shifting
argument. First, courts have held that when an employer has
failed to keep “accurate time records of [a plaintiff’s] work hours,”
“ ‘the consequences for such failure should fall on the employer,
not the employee. In such a situation, imprecise evidence by the
employee can provide a sufficient basis for damages.’ [Citation.]”
(Furry v. East Bay Publishing, LLC (2018) 30 Cal.App.5th 1072,
1079 (Furry), disapproved on other grounds by Naranjo v.
Spectrum Security Services, Inc. (2024) 15 Cal.5th 1056.)
Specifically, an employee may meet his burden “ ‘ “if he proves
that he has in fact performed work for which he was improperly
compensated and if he produces sufficient evidence to show the
amount and extent of that work as a matter of just and
reasonable inference. The burden then shifts to the employer to
come forward with evidence of the precise amount of work
performed or with evidence to negative the reasonableness of the
inference to be drawn from the employee's evidence. If the
employer fails to produce such evidence, the court may then
award damages to the employee, even though the result be only
approximate.” ’ [Citation.]” (Furry, at p. 1079.)
Importantly, the framework described in Furry does not
relieve the plaintiff of the burden of proving injury, that is,
proving that the plaintiff “ ‘ “in fact performed work for which he
was improperly compensated.” ’ ” (Furry, supra, 30 Cal.App.5th
at p. 1079.) Rather, once “ ‘the fact of damage is certain,’ ” the
framework makes it easier for the plaintiff “[t]o prove the amount
of hours of uncompensated work” using less precise evidence that
then shifts the burden to the defendant to counter that evidence.
(Id. at p. 1080.)
18
The rule in Furry does not help plaintiffs here because the
trial court found plaintiffs had failed to prove they had performed
work for which they were not properly compensated. Having not
met the threshold of proving “ ‘the fact of damage,’ ” plaintiffs
could not shift the burden to Millennium to disprove plaintiffs’
calculation of “the amount” of damages. (Furry, supra,
30 Cal.App.5th at p. 1080.)
The second basis for plaintiffs’ burden-shifting argument
is articulated in Donohue v. AMN Services, LLC (2021) 11 Cal.5th
58, which held that “records showing noncompliant meal periods
raise a rebuttable presumption of meal period violations.” (Id. at
p. 61.) “Employers can rebut the presumption by presenting
evidence that employees were compensated for noncompliant
meal periods or that they had in fact been provided compliant
meal periods during which they chose to work. ‘Representative
testimony, surveys, and statistical analysis,’ along with other
types of evidence, ‘are available as tools to render manageable
determinations of the extent of liability.’ [Citation.]” (Id. at
p. 77.)
Assuming arguendo Millennium did not properly record
plaintiffs’ meal and rest breaks (which Millennium disputes), and
therefore the trial court erred by not shifting the burden of proof
to Millennium as described in Donohue, any such error was
harmless. (F.P. v. Monier (2017) 3 Cal.5th 1099, 1108 [reviewing
court may not set aside judgment absent prejudicial error].)
Although the court found plaintiffs had “fail[ed] to shift the
burden to defendant,” the court nonetheless expressly considered
whether “Defendant has submitted sufficient admissible evidence
that it complied with its obligations under the law,” and
concluded Millennium had met this burden. The court stated it
19
found Millennium’s witnesses credible4 and plaintiffs and their
witnesses not credible, and additionally made findings based on
the testimony of Millennium’s witnesses, including that
Millennium had provided plaintiffs compliant break periods, that
plaintiffs did not work overtime, and that Millennium provided
paystubs. The court therefore indicated it would rule in favor of
Millennium even if the burden had shifted. Remand for further
proceedings on this point would be futile.
Plaintiffs argue the trial court misunderstood the proper
burden of proof because it found, in support of its ruling in
Millennium’s favor, that plaintiffs had never complained to
supervisors that they were not receiving proper rest and meal
breaks. Plaintiffs contend, “Employers are not absolved of their
duties to provide complaint [sic] meal periods if their employees
do not complain.” We do not interpret this finding as absolving
Millennium of its responsibilities or misunderstanding the law.
Rather, the court appeared to be offering an explanation for why
it did not find plaintiffs credible when they testified they did not
receive proper breaks.
C. Substantial Evidence Supports the Finding That
Plaintiffs Were Paid for Their Time Standing in Line
Before Work
Plaintiffs argue it is undisputed they had to stand in line to
check in before they started work, and thus they “are entitled to
the minimum wage for all time spent standing in line.”
4 We reasonably may presume the court counted Dave as
one of Millennium’s witnesses, although called by plaintiffs as a
hostile witness.
20
This argument ignores the testimony of Dave and Canek,
both of whom testified Canek clocked all employees in as of the
time he checked in the first employee. Even if employees further
up the line were not checked in until later, their start time was
the same as the first person in line, and thus they were credited
for the time spent in line. Dave also testified that no one was
required to stand in line before the work facility opened. Dave’s
and Canek’s testimony was substantial evidence to support the
trial court’s finding that plaintiffs had no uncompensated time.
To the extent plaintiffs dispute the veracity or reliability of that
testimony, we are bound by the standard of review, and must
defer to the trial court’s credibility findings. (McPherson, supra,
47 Cal.App.5th at p. 257.)
D. Substantial Evidence Supports the Finding That
Plaintiffs Were Provided With Wage Statements
Plaintiffs argue “wage statements are non-existent for each
[plaintiff] for substantial periods of their employment,” and
contend they may recover damages for any pay period in which
they were not given such statements.
Dave testified that Millennium’s payroll provider, ADP,
attached paystubs to each paycheck. He explained Millennium’s
inability to produce in discovery wage statements for the entire
period of plaintiffs’ employment was due to data loss when
Millennium changed systems with ADP. This was substantial
evidence supporting the trial court’s finding Millennium provided
wage statements. Although plaintiffs and their witnesses
testified to the contrary, we presume the court did not credit that
testimony, having found plaintiffs and their witnesses not
credible.
21
Plaintiffs note substantial evidence must be “ ‘of ponderable
legal significance,’ ‘reasonable in nature, credible, and of solid
value’ ” (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1006), and
contend “[a]ny protestation by Millennium that it provided
compliant wage statements despite the absence of records”
does not meet this test. With this argument, plaintiffs in essence
ask us to conclude that Dave’s testimony is not credible given the
lack of documentary support. Plaintiffs offer no authority that
we may reach such a conclusion under the substantial evidence
test, which, again, requires us to defer to the credibility
determinations of the finder of fact.
E. Plaintiffs’ Have Forfeited Their Remaining
Substantial Evidence Arguments for Failure To
Raise Them in Their Opening Brief
In their reply brief, plaintiffs argue the trial court’s rulings
in Millennium’s favor as to unpaid overtime, meal and rest break
violations, and nonpayment or untimely payment of wages upon
termination are not supported by substantial evidence. They
did not raise these arguments in their opening appellate brief—
plaintiffs summarized the evidence in their statement of facts
and identified their operative claims, but did not explain why the
court’s conclusions were in error. They have thus forfeited these
challenges. (Hurley v. Department of Parks & Recreation (2018)
20 Cal.App.5th 634, 648, fn. 10.)
22
DISPOSITION
The judgment is affirmed. Millennium Products, Inc. is
awarded its costs on appeal.
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
WEINGART, J.
23