Morales v. 22nd Dist. Agricultural Assn.

Filed 7/13/16
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
JOSE LUIS MORALES et al., D067247
Plaintiffs and Appellants,
v. (Super. Ct. No. 37-2013-40938-CU-
OE-CTL)
22ND DISTRICT AGRICULTURAL
ASSOCIATION,
Defendant and Respondent.
APPEAL from an order and judgment of the Superior Court of San Diego County,
Joel R. Wohlfeil, Judge. Order affirmed in part and reversed in part; judgment affirmed.
Law Offices of David J. Gallo and David J. Gallo for Plaintiffs and Appellants.
Gordon & Rees, James J. McMullen, Matthew G. Kleiner, Autumn Moody and
Justin Michitsch for Defendant and Respondent.
This appeal addresses a collective action alleging nonpayment of overtime, as
required by state law under Labor Code1 section 510 and federal law under the Fair Labor
Standards Act of 1938 (FLSA, 29 U.S.C. § 201, et seq.). We conclude that the trial court
1 Undesignated statutory references are to the Labor Code unless otherwise specified.
properly entered judgment for the defendant on the FLSA claim. Defendant proved the
amusement or recreational exemption (29 U.S.C. § 213(a)(3), the amusement exemption)
as an affirmative defense and plaintiffs failed to show error in the denial of their nonsuit
motion, in the jury instructions, in the verdict form or in the court's exclusion of witnesses
from the courtroom. We also conclude that the trial court properly sustained defendant's
demurrer to the section 510 claim, but further conclude that the court erred in denying
leave to amend.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Jose Luis Morales and 177 other similarly situated plaintiffs (collectively
appellants) sued their employer, the 22nd District Agricultural Association of the State of
California (the DAA), alleging nonpayment of overtime, as required by state law under
section 510 and federal law under the FLSA. The DAA is a California agency that owns
and manages the Del Mar Fairgrounds (Fairgrounds) and the Del Mar Horsepark
(Horsepark). The DAA leases out part of the Fairgrounds property to the Surf & Turf
Recreation Golf Center (Recreation Center). Also on the Fairgrounds property is a satellite
wagering facility, which is leased to another entity. The Horsepark is located on another
parcel of land, located about three miles from the Fairgrounds.
Appellants are seasonal employees of the DAA who assist with amusement and
seasonal operations. Appellants are limited to working 119 days in a calendar year and are
internally referred to as "119-day employees." Appellants are not limited as to the number
of hours that they may work in those 119 days. Appellants filed a putative class action
against the DAA to recover penalties and damages for alleged violations of state and
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federal overtime laws. The trial court sustained, without leave to amend, the DAA's
demurrer to appellants' section 510 cause of action. After the trial court conditionally
certified the case as a collective action, the DAA answered the complaint, asserting the
amusement exemption as an affirmative defense to the remaining federal claim. Under this
exemption, an employee of an amusement or recreational establishment is not entitled to
overtime compensation if certain criteria are met. (29 U.S.C. § 213(a)(3).)
In response to a court-approved notice, 177 individuals joined the action as
additional plaintiffs. The trial court bifurcated the action; the parties stipulated that the first
phase of trial would be for the exclusive purpose of adjudicating the DAA's affirmative
defense regarding the applicability of the amusement exemption. Any remaining issues
would subsequently be tried before a new jury.
After conclusion of the DAA's evidence, the trial court denied appellants' oral
motion for nonsuit. The jury rendered a special verdict in favor of the DAA and the court
later entered judgment. Thereafter, the parties submitted a stipulation regarding the form
of judgment and attached a proposed judgment. The trial court endorsed the parties'
stipulation, but did not separately enter the agreed form of judgment. Appellants contend,
and the DAA does not contest, that the initial judgment, as modified by the order approving
the parties' stipulation, constitutes a final, appealable judgment. Appellants timely
appealed from the order sustaining the demurrer and from the judgment.
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DISCUSSION
Appellants contend that reversal of the judgment in favor of the DAA on their FLSA
claim is required because the trial court: (1) improperly denied their nonsuit motion;
(2) erred in instructing the jury; (3) provided an erroneous special verdict form; and
(4) improperly excluded party witnesses from the courtroom. We address these
contentions in part I of this opinion, concluding that appellants have not met their burden to
demonstrate reversible error. In part II of the opinion, we conclude that the trial court
properly sustained the DAA's demurrer to appellants' section 510 claim, but further
conclude that the court erred in denying leave to amend.
I. FLSA Claim
A. Legal and Factual Background
The FLSA requires that an employer pay overtime wages to employees unless those
employees are classified as exempt employees under applicable law. (29 U.S.C.
§§ 207, 213.) The FLSA requires overtime pay only if an employee works more than 40
hours per week, regardless of the number of hours worked during any one day. (29 U.S.C.
§ 207(a)(1).) However, the FLSA provides for a number of exemptions to this general
rule. (29 U.S.C. § 213.) One of these exemptions is the amusement exemption that applies
to any employee of an establishment whose business is to provide amusement or
recreation. (29 U.S.C. § 213(a)(3).)
The amusement exemption states, in relevant part, that it applies to "any employee
employed by an establishment which is an amusement or recreational establishment,
organized camp, or religious or non-profit educational conference center, if (A) it does not
4
operate for more than seven months in any calendar year, or (B) during the preceding
calendar year, its average receipts for any six months of such year were not more than 33 ⅓
per centum of its average receipts for the other six months of such year . . . ." (29 U.S.C.
§ 213(a)(3).)2
The amusement exemption thus has two main elements: first, the business must
qualify as an "amusement or recreational" establishment and second, the establishment
must satisfy either the duration test or the receipts test. (29 U.S.C. § 213(a)(3); 29 C.F.R.
§ 779.385 (2015).) The first element has two subparts: (1) identifying the "establishment"
and (2) determining the "amusement or recreational" nature of that establishment. "The
logical purpose of the [amusement exemption] is to exempt . . . amusement and
recreational enterprises . . . which by their nature, have very sharp peak and slack
seasons . . . . Their particular character may require longer hours in a shorter season, their
economic status may make higher wages impractical, or they may offer non-monetary
rewards." (Brock v. Louvers and Dampers, Inc. (6th Cir. 1987) 817 F.2d 1255, 1259.)
Appellants contend that they are entitled to overtime wages under the FLSA. As an
affirmative defense, the DAA asserted that it is exempt from the FLSA under the
amusement exemption. The matter proceeded to trial, at which the DAA presented
evidence that it is exempt from the FLSA under the amusement exemption. After the
conclusion of the DAA's evidence, appellants orally moved for nonsuit, asserting that, as a
matter of law, the amusement exemption did not apply because the DAA failed to show:
2 For ease of reference, we refer to subpart (A) of the amusement exemption as the
"duration test" and subpart (B) as the "receipts test."
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(1) that it existed to promote youth summer employment, and (2) that the majority of its
income was derived from amusement or recreation. The trial court denied the motion,
concluding that the evidence could support a finding that the DAA operated as a single
establishment, that the nature of that single establishment was amusement or recreational,
and that it satisfied the receipts test.
B. Eligibility for Amusement Exemption
As a preliminary matter before we examine the nonsuit motion, the parties dispute
whether eligibility for the amusement exemption turns on (1) the nature of the employer's
revenue producing activities, or (2) the work performed by the employee. As appellants
note, this question is of great importance to this appeal because it impacts the order
denying nonsuit and some of the challenged jury instructions. The parties have not cited,
and we have not found, any California case law addressing this issue. The parties rely on
federal case law. While we are not bound to follow federal court precedent, " 'numerous
and consistent' " federal decisions may be particularly persuasive when they interpret
federal law. (Etcheverry v. Tri–Ag Service, Inc. (2000) 22 Cal.4th 316, 320-321.)
Relying on Brennan v. Six Flags Over Georgia, Ltd. (5th Cir. 1973) 474 F.2d 18(Six Flags), appellants contend that it is the "nature [or character] of the work" and "not the
source of the remuneration, that controls" and "gives rise to the need for [the amusement]
exemption." (Id. at p. 19.) About a year later, however, the Fifth Circuit came to the
opposite conclusion, holding that an employer's "principal activity should be determinative
of [its] eligibility for an exemption." (Brennan v. Texas City Dike & Marina, Inc. (5th Cir.
1974) 492 F.2d 1115, 1119 (Texas City).) The Fifth Circuit provided no reason in Texas
6
City regarding its change in position. (Ibid.) The Sixth, First and Tenth Circuits later
adopted the Fifth Circuit's new position that it is the employer's principal activity that
controls. (Marshall v. New Hampshire Jockey Club, Inc. (1st Cir. 1977) 562 F.2d 1323,
1331, fn. 4 (Marshall); Brennan v. Southern Productions, Inc. (6th Cir. 1975) 513 F.2d
740, 746-747; Hamilton v. Tulsa County Public Facilities Authority (10th Cir. 1996) 85
F.3d 494, 497; Chessin v. Keystone Resort Management, Inc. (10th Cir. 1999) 184 F.3d
1188, 1193-1194 (Chessin).)3 We find these "numerous and consistent" federal circuit
court decisions to be persuasive on the issue. (Conrad v. Bank of America (1996) 45
Cal.App.4th 133, 150.)
Moreover, appellants have not provided a reasonable basis for us to reject these
decisions. As one court noted, the plain language of the amusement exemption suggests
that the inquiry "turns on the nature of the employer's business, not on the nature of the
employee's work." (Marshall, supra, 562 F.2d at p. 1331, fn. 4.) Additionally, the
applicable federal regulations state that exemptions "depend on the character of the
establishment." (29 C.F.R. § 779.302 (2015).) "[I]f the establishment meets the tests
enumerated in these sections, employees 'employed by' that establishment are generally
exempt" from the FLSA's overtime provision. (Ibid.) Finally, a formal opinion letter from
the U.S. Department of Labor (DOL), Wage and Hour Division provides: "Whether or not
an establishment has an 'amusement or recreational' character for purposes of the section
3 In Donovan v. S & L Development Co. (9th Cir. 1981) 647 F.2d 14 (Donovan), the
Ninth Circuit cited Six Flags when addressing whether the FLSA applied to the business at
issue. (Id. at pp. 16-17.) Donovan, however, did not address the issue before us—whether
a particular exemption applies.
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13(a)(3) exemption depends on its principal or primary activity." (DOL Wage and Hour
Division Opinion Letter FLSA 2006-39 (DOL 2006-39);
http://www.dol.gov/whd/opinion/FLSA/2006/2006_10_12_39_FLSA.htm [as of July 12,
2016].) "[I]nterpretations contained in formats such as opinion letters are 'entitled to
respect.' " (Christensen v. Harris County (2000) 529 U.S. 576, 587.)
In summary, we conclude that eligibility for the amusement exemption turns on the
nature of the employer's revenue producing activities, not on the nature of the work
performed by the employee.
C. Nonsuit Motion
Appellants assert that one of the most important issues in this case in the trial court
was whether all of the DAA's business operations, locations, buildings and departments
constitute a single establishment because, if it is deemed to be a single establishment, it
would satisfy the receipts test for the claimed exemption. Appellants argued in the trial
court that they were entitled to a nonsuit because a required element of the amusement
exemption is showing that the employment "plainly and unmistakably" falls within the
letter and spirit of the exemption, and the DAA had failed to show that all of its operations
constitute a single establishment. The trial court denied the motion, finding that the DAA
had presented sufficient evidence from which the jury could find that the DAA operated a
single establishment, and that the nature of the establishment was amusement or
recreational.
The principal purpose in enacting the FLSA was to protect all covered workers from
substandard wages and oppressive working hours. (Barrentine v. Arkansas-Best Freight
8
System, Inc. (1981) 450 U.S. 728, 739.) A defendant bears the burden of proof of
establishing the applicability of an FLSA exemption as an affirmative defense. (Ramirez v.
Yosemite Water Co. (1999) 20 Cal.4th 785, 794-795 (Ramirez); accord, Corning Glass
Works v. Brennan (1974) 417 U.S. 188, 196-197.) Determining whether an exemption
applies is a fact-specific inquiry. (Vinole v. Countrywide Home Loans, Inc. (9th Cir. 2009)
571 F.3d 935, 945.)
As a general matter, FLSA exemptions " 'are to be narrowly construed against the
employers seeking to assert them and their application [is] limited to those establishments
plainly and unmistakably within their terms and spirit.' " (Arnold v. Ben Kanowsky, Inc.
(1960) 361 U.S. 388, 392; Guerrero v. Superior Court (2013) 213 Cal.App.4th 912, 941
(Guerrero).) Appellants, however, seek to transform this policy statement into a new
standard of proof. Appellants' have cited no authority to support their contention, and we
reject it. The amusement exemption has two, and only two, elements: first, the business
must qualify as an "amusement or recreational" establishment and, second, the
establishment must satisfy either the duration test or the receipts test. (29 U.S.C.
§ 213(a)(3); 29 C.F.R. § 779.385 (2015).)
The parties stipulated that, if the DAA were viewed in the aggregate as a single
establishment, it would meet the receipts test of the amusement exemption. Accordingly,
we focus on the first element of the amusement exemption and examine whether the trial
court properly denied nonsuit because the DAA presented evidence showing (1) that it is a
single establishment, and (2) that the nature of its principal or primary activity is
amusement or recreational.
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A party is entitled to a nonsuit when, as a matter of law, the evidence presented by
the party opposing the nonsuit is insufficient to allow a jury to find in the opposing party's
favor. (See Saunders v. Taylor (1996) 42 Cal.App.4th 1538, 1541.) In ruling on a nonsuit
motion the trial court must interpret all of the evidence most favorably to the party
opposing the nonsuit and most strongly against the party seeking the nonsuit, and must
resolve all presumptions, inferences, conflicts, and doubts in favor of the party opposing
the nonsuit. (Powerhouse Motorsports Group, Inc. v. Yamaha Motor Corp., U.S.A. (2013)
221 Cal.App.4th 867, 887.) We review the ruling on a nonsuit de novo, applying the same
standard as the trial court. (Saunders v. Taylor, supra, 42 Cal.App.4th at pp. 1541-1542.)
Thus, the issue before us is whether the evidence presented by the DAA, viewed favorably
to its cause, was insufficient as a matter of law to show that the DAA operated a single
establishment and that the nature of its principal or primary activity was amusement or
recreational.
1. Single Establishment
Application of the amusement exemption depends on the general character of the
establishment/employer. (29 C.F.R. § 779.302 (2015).) The term "establishment" refers to
a " 'distinct physical place of business.' " (29 C.F.R. § 779.23 (2015).) An " 'enterprise' "
may be "composed of a single establishment." (29 C.F.R. § 779.303 (2015).) "The term
'establishment,' however, is not synonymous with the words 'business' or 'enterprise' when
those terms are used to describe multiunit operations. In such a multiunit operation some
of the establishments may qualify for exemption, others may not." (Ibid.) Leased
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departments in a departmentalized store are generally not considered to be separate
establishments for purposes of the exemptions. (29 C.F.R. § 779.306 (2015).)
Both parties cite 29 C.F.R. § 779.305 (2015), which provides that an establishment
should be considered separate under the FLSA if "(a) It is physically separated from the
other activities; and (b) it is functionally operated as a separate unit having separate
records, and separate bookkeeping; and (c) there is no interchange of employees between
the units."4 The trial court instructed the jury with a modified version of this regulation.
29 C.F.R. § 779.305 (2015) describes a three-part test for distinguishing whether
"two or more physically separated portions of a business though located on the same
premises … may constitute more than one establishment for purposes of the exemptions."
(Italics added.) However, we question whether this test applies where, as here, multiple
4 29 C.F.R. § 779.305 (2015) provides: "Separate Establishments on the Same
Premises. [¶] Although, as stated in the preceding section, two or more departments of a
business may constitute a single establishment, two or more physically separated portions
of a business though located on the same premises, and even under the same roof in some
circumstances may constitute more than one establishment for purposes of exemptions. In
order to effect such a result physical separation is a prerequisite. In addition, the physically
separated portions of the business also must be engaged in operations which are
functionally separated from each other. . . . For retailing and other functionally unrelated
activities performed on the same premises to be considered as performed in separate
establishments, a distinct physical place of business engaged in each category of activities
must be identifiable. The retail portion of the business must be distinct and separate from
and unrelated to that portion of the business devoted to other activities. . . . In other words,
the retail portion of an establishment would be considered a separate establishment from
the unrelated portion for the purpose of the exemption if (a) It is physically separated from
the other activities; and (b) it is functionally operated as a separate unit having separate
records, and separate bookkeeping; and (c) there is no interchange of employees between
the units. The requirement that there be no interchange of employees between the units
does not mean that an employee of one unit may not occasionally, when circumstances
require it, render some help in the other units or that one employee of one unit may not be
transferred to work in the other unit. The requirement has reference to the indiscriminate
use of the employee in both units without regard to the segregated functions of such units."
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premises are involved. Significantly, the fact that multiple premises are involved is not
fatal to a finding that the multiple premises constitute a single establishment. (Mitchell v T.
F. Taylor Fertilizer Works, Inc. (5th Cir. 1956) 233 F.2d 284, 285, 287 (Mitchell) [fertilizer
dry mixing plant and office located on different premises constituted a single establishment
for purposes of the retail or service establishments exemption]; Doe v. Butler Amusements,
Inc. (N.D. Cal. 2014) 71 F.Supp.3d 1125, 1127, 1140-1141 (Doe) [cross-motions for
summary judgment denied where carnival operating in more than one physical location
could constitute a single establishment]; see also Marshall, supra, 562 F.2d at p. 1331
("[[W]e think it appropriate to proceed beyond [29 C.F.R. § 779.305 (2015)] and look more
broadly into 'the integrity of the economic… and functional separation between the
business units.' "].) As the Mitchell court noted, "the suggestion that the right to an
exemption depends upon such factors as whether part of the business is separated by a
partition, or is conducted in an adjoining building, or in a building across the street or five
blocks away, does not recommend itself as a rational distinction; furthermore, it does not
appear to have been the intent of Congress." (Mitchell, supra, at pp. 285-286.)
The Doe court examined 29 C.F.R. § 1620.9 (2015), a regulation issued by the U.S.
Equal Employment Opportunity Commission to interpret the Equal Pay Act (EPA), which
is part of the FLSA. (Doe, supra, 71 F.Supp.3d at p. 1134 & fn. 5.) The definition of
"establishment" is important to EPA analysis because the statute prohibits pay
discrimination on the basis of sex within an "establishment." (29 U.S.C. § 206(d)(1).) 29
C.F.R. § 1620.9 (2015) provides that "each physically separate place of business is
ordinarily considered a separate establishment," but in unusual circumstances "two or more
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portions of a business enterprise, even though located in a single physical place of
business, may constitute more than one establishment" or "two or more distinct physical
portions of a business enterprise [could be treated] as a single establishment. For
example, a central administrative unit may hire all employees, set wages, and assign the
location of employment; employees may frequently interchange work locations; and daily
duties may be virtually identical and performed under similar working conditions."
(Italics added.) The Doe court concluded, and we agree, that this regulation offers
guidance as to the meaning of "establishment" in the context of overtime and minimum
wage claims. (Doe, supra, 71 F.Supp.3d at p. 1134 & fn. 5.)
Accordingly, reliance by the parties and the court on the three-part test of 29 C.F.R.
§ 779.305 may be misplaced. Appellants, however, do not claim error on this ground.
Thus, we examine the trial court's ruling on the nonsuit motion utilizing the three-part
conjunctive test of 29 C.F.R. § 779.305 (2015) to determine whether the DAA presented
evidence showing that it operates as a single establishment. Under this test, evidence
showing physical and functional separation, and no interchange of employees is sufficient
to show that an establishment should be considered separate, rather than a single
establishment.
The Horsepark is physically separated from the Fairgrounds. Nonetheless, the DAA
presented evidence showing that its Board of Directors oversees the Fairgrounds, the
Horsepark and the Recreation Center. The day-to-day operations of the Recreation Center
are performed by private companies that run their respective businesses under written
leases and operating agreements with the DAA, but the DAA, as the landlord, handles
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major issues such as plumbing or electrical problems. The chief financial officer for the
DAA testified that the DAA has an organizational chart. Different areas of responsibility
are divided into departments, with different department numbers. All departments are
"very tightly linked together" and they share employees and resources. A single set of
books exists for all of the departments and the departments cannot function separately. The
DAA has a single operating bank account for all departments. The Horsepark does not
have a separate bank account or accounts payable department.
The department heads for all departments report to the executive management of the
DAA. The departments do not have separate executive officers or boards of directors.
Additionally, the DAA's accounting staff is used interchangeably as needed at the
Horsepark to track accounts receivables, and the DAA's employees perform necessary
maintenance, recycling, marketing, security and janitorial work for all departments. The
Horsepark and the DAA use the same payroll and human resources departments.
This constitutes substantial evidence showing that the two separate properties
qualify as a single establishment, since they are not functionally operated as separate
departments, do not have separate records and separate bookkeeping, and there is an
interchange of employees between them. Although appellants may have presented
conflicting evidence on this element, conflicting evidence is disregarded when evaluating a
motion for nonsuit. (Edwards v. Centex Real Estate Corp. (1997) 53 Cal.App.4th 15, 27-
28.)
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2. Amusement or Recreational Character of Establishment
Appellants next contend that the trial court erred in denying their motion for nonsuit
because there was no substantial evidence to support a finding that the DAA derived a
majority of its income from amusement or recreation. As appellants note, in determining
whether the character of an establishment is primarily amusement or recreational, some
courts have utilized an income test to determine the principal activity of the enterprise,
under the rationale that the major income source of a business will be the principal activity
of the business. (See e.g., Texas City, supra, 492 F.2d at pp. 1119-1120 [the major income
source of the business will be its principal activity].) In contrast, another court declined to
require that an establishment derive a certain percentage of revenue from strictly
recreational activities in order to be considered recreational. (Chessin, supra, 184 F.3d at
p. 1194.) Instead, the Chessin court examined the totality of the circumstances, "including
but not limited to the establishment's primary purpose; activities and services, such as
restaurants and shops, that it offers incidental to its recreational facilities; its relationship to
land set aside for recreational use; and its revenue sources." (Ibid.)
In DOL 2006-39, the DOL stated "[w]hether or not an establishment has an
'amusement or recreational' character for purposes of the [amusement] exemption depends
on its principal or primary activity." After so holding, the DOL noted that, based on the
information provided, the principal activity of the establishment (vessels providing
overnight vacation cruises) appeared to be selling recreational activities, but that other
factors "may weigh" against a finding that the establishment had an amusement or
recreational character, noting "if the majority of [the establishment's] income is derived
15
from food, drink, lodging, concessions, and gifts, rather than from the premium portion of
ticket sales paid for the nature-related and sight-related aspects of the excursion and
entertainment, that would weigh against [the establishment] having an amusement or
recreational character." (DOL 2006-39.) Thus, the DOL appears to have adopted a totality
of the circumstances test to determine the amusement or recreational nature of an
establishment, since it did not require that the establishment derive a certain percentage of
revenue from activities that were strictly amusement or recreational, but rather, considered
the source of the establishment's income to be one factor in the overall analysis. We agree
with this conclusion. Accordingly, in evaluating whether the trial court properly denied
nonsuit on the ground that the DAA established that the nature of its establishment is
amusement or recreational, we look to the totality of the circumstances, including the
portion of the DAA's revenue derived from amusement or recreational activities.
The amusement exemption provides that the establishment must be for "amusement"
or "recreation[]," but does not define these terms. (29 U.S.C. § 213(a)(3).) A federal
regulation provides a somewhat circular definition of amusement or recreational
establishments as "establishments frequented by the public for its amusement or
recreation." (29 C.F.R. § 779.385 (2015).) According to the Oxford English Dictionary,
"amusement" means "[r]ecreation, relaxation, the pleasurable action upon the mind of
anything light and cheerful" and defines "recreation" as "[t]he action or fact of refreshing
or entertaining oneself through a pleasurable or interesting pastime, amusement, activity."
(Oxford English Dict. Online (2016) < http://www.oed.com> [as of May 27, 2016].) At
least one federal circuit court found the phrase "[r]ecreational establishment" to be
16
ambiguous because the words used in the statute do not plainly convey where the boundary
for the exemption lies. (Chao v. Double JJ Resort Ranch (6th Cir. 2004) 375 F.3d 393,
396-397.) We agree with this assessment.
Because of this ambiguity, in determining whether the exception applies, we may
properly consider any legislative history. The Sixth Circuit noted that "[t]he purpose of the
seasonal amusement or recreational establishment exemption was not clearly spelled out in
the legislative history of either the 1961 or 1966 amendments. However, there is some
useful legislative history discussing a proposed 1965 amendment to the FLSA. The House
Committee Report stated that the amusement and recreational establishment exemption
would cover 'such seasonal recreational or amusement activities as amusement parks,
carnivals, circuses, sport events, parimutuel racing, sport boating or fishing, or other
similar or related activities . . . .' [Citation.] Although the proposed amendment was not
passed, the legislative history is relevant because the following year Congress enacted a
similar amendment including the amusement and recreational exemption." (Brock v.
Louvers and Dampers, Inc., supra, 817 F.2d at p. 1258.)
Another court noted that while the legislative history is "skimpy," it "suggests that
the exemption does not cover establishments whose sole or primary activity is selling
goods." (Texas City, supra, 492 F.2d at p. 1118.) The Texas City court noted the Tenth
Circuit's statement that the purpose of the amusement exemption is " ' to allow recreational
facilities to employ young people on a seasonal basis and not have to pay the relatively
high minimum wages required' " by the FLSA. (Id. at fn. 6, citing Brennan v. Yellowstone
Park Lines (10th Cir. 1973) 478 F.2d 285, 288.) The Texas City court commented that
17
"[w]hile that appears to be a logical theory, we can find nothing in the legislative history to
confirm it. The legislative history simply does not directly address the purpose of the
amusement-recreation exemption." (Texas City, supra, at p. 1118.)
With this background, we note that the recreational nature of the DAA is established
by statute. The statutory purpose of the DAA is to hold "fairs, expositions and exhibitions
for the purpose of exhibiting all of the industries, and industrial enterprises, resources and
products of every kind or nature of the state with a view toward improving, exploiting,
encouraging and stimulating them," and to "construct[], maintain[] and operate[]
recreational and cultural facilities of general public interest." (Food & Agric. Code,
§ 3951.) The DAA is statutorily empowered to lease its property. (Food & Agric. Code,
§ 4051, subd. 12.) Additionally, other courts have concluded that fairgrounds are
recreational in nature. (Hamilton v. Tulsa County Public Facilities Authority, supra, 85
F.3d at p. 496, 497 [holding public trust that managed fairgrounds to be exempt from the
overtime provisions of the FLSA under the amusement or recreational establishment
exemption exception]; Gibbs v. Montgomery County Agricultural. Society (S.D. Ohio
2001) 140 F.Supp.2d 835, 844 [holding the amusement exemption applied because "the
uncontroverted evidence establishes that the Defendant's principal 'activities are the
management of the Montgomery County Fairgrounds—including leasing it for various
recreational and other activities. . . .' "]; Chaney v. Clark County Agricultural. Society (Ct.
App. Ohio 1993) 90 Ohio App. 3d 421, 423, 425-426 [noting that the United States
Department of Labor, Wage and Hour handbook provides the activities of the usual
" ' "state or county fair are analogous to those of an amusement park, carnival, or
18
circus . . . and . . . thus may qualify for the [29 U.S.C.] section 213(a)(3) exemption if the
[operational] tests are met." ' "].)
The evidence that the DAA presented shows that the primary nature of its
establishment is amusement and recreational. The mission statement of the DAA is "[t]o
manage and promote a world class, multi-use, public assembly facility with an emphasis on
agriculture, education, entertainment and recreation in a fiscally sound and environmentally
conscientious manner for the benefit of all." The DAA produces numerous events each
year, such as the Del Mar National Horse Show, the San Diego County Fair, Professional
Bull Riding circuit, the annual Scream Zone and, previously, the Holiday of Lights. The
DAA also utilizes its premises to host approximately 300 interim events per year, produced
by organizations that rent its facilities, including events such as home and garden shows,
bridal bazaars, dog shows, cat shows and private events. The trial court could have
rationally concluded that the primary character of these interim events is amusement or
recreational.
Appellants represent that the DAA derives about 50 percent of its total income from
the fair and one percent from its lease to the Del Mar Thoroughbred Club. They claim that
the jury could infer that about 49 percent of the DAA's total income came from interim
events that are not amusement or recreational in character. However, in light of our
conclusion that the trial court could have rationally found that the primary character of the
interim events is amusement or recreational, appellants' argument works against them.
Despite the lack of authority regarding the meaning of "amusement or recreational," this
19
evidence is sufficient to show that the primary nature of the DAA is to provide amusement
or recreation.
In summary, the trial court properly denied appellants' nonsuit motion because the
DAA presented sufficient evidence that it is a single establishment that provides
amusement or recreation.5
D. Jury Instructions
1. General Legal Principles
A party is entitled to request that the jury be correctly instructed on any of the
party's theories of the case that is supported by substantial evidence. (Soule v. General
Motors Corp. (1994) 8 Cal.4th 548, 572 (Soule).) An erroneous refusal to instruct the jury
is reversible if it is probable that the error prejudicially affected the verdict. (Id. at p. 580.)
We independently review contentions that the court erred in instructing the jury. (Cristler
v. Express Messenger Systems, Inc. (2009) 171 Cal.App.4th 72, 82.) In doing so, and in
evaluating any prejudicial impact of the allegedly erroneous instruction, we view the
evidence in the light most favorable to the losing party because "we must assume the jury
might have believed the evidence upon which the proposed instruction was predicated and
might have rendered a verdict in favor of the losing party had a proper instruction been
given." (Bourgi v. West Covina Motors, Inc. (2008) 166 Cal.App.4th 1649, 1664.) When
5 Appellants have not challenged the sufficiency of the evidence supporting the jury's
fact-specific findings that the DAA operates a single establishment, that the nature of that
establishment is amusement or recreational, and that the establishment satisfies the receipts
test. (Vinole v. Countrywide Home Loans, Inc., supra, 571 F.3d at p. 945.) We deem these
arguments forfeited. (Pfeifer v. Countrywide Home Loans, Inc. (2012) 211 Cal.App.4th
1250, 1282.)
20
deciding whether an instructional error was prejudicial, we must consider "insofar as
relevant, '(1) the degree of conflict in the evidence on critical issues [citations]; (2) whether
respondent's argument to the jury may have contributed to the instruction's misleading
effect [citation]; (3) whether the jury requested a rereading of the erroneous instruction
[citation] or of related evidence [citation]; (4) the closeness of the jury's verdict [citation];
and (5) the effect of other instructions in remedying the error [citations].' " (Soule, supra, 8
Cal.4th at pp. 570-571.)
2. Analysis
Appellants claim that the trial court erred in refusing nine of their proposed special
instructions and in giving one of the DAA's proposed special instructions. We address
each instruction.
a. Appellants' Proposed Special Jury Instruction Number 2
The proposed instruction provided: "An employee cannot give up his or her
overtime compensation even if he or she agrees to do so, or even if he or she volunteers to
work overtime hours. An employer must pay overtime compensation to an employee even
if the employee[] volunteered and/or agreed to work more than forty (40) hours without
receiving overtime compensation."
Appellants contend that the trial court erred in refusing to give this instruction
because it is an accurate statement of the law. Assuming, without deciding, that the
instruction accurately states the law, appellants have not explained how the instruction was
relevant to deciding the merits of the DAA's affirmative defense, which was the sole issue
before the jury in the first phase of this bifurcated trial. As noted, to establish the
21
amusement or recreational exemption, the DAA was required to prove that it is a single
establishment, the nature of the establishment is amusement or recreational and that it
satisfies the duration or receipts test. (See ante, pt.I.C.) The trial court properly rejected
the proposed instruction because it was not relevant to the issues before the jury during this
phase of the trial.
b. Appellants' Proposed Special Jury Instructions Numbers 3, 7 and 15
Proposed instruction number 3 provided: "In order to find that an employee is
'exempt' from the benefits of the overtime law, you must find that the employee's
employment is plainly and unmistakably within the terms and spirit of the particular
exemption claimed by the employer. The exemption claimed by the . . . DAA in this case
was designed to facilitate youth summer employment." (Italics added.)
The trial court refused the instruction, stating that the concept was "nebulous . . .
this area of the law is slippery enough. We don't have to add spirit and terms. . . ."
Appellants assert that the failure to provide this instruction denied them the opportunity to
place their full case before the jury and constituted a miscarriage of justice. We disagree.
The italicized language in the proposed instruction originates from a United States
Supreme Court case and is often cited. (Arnold v. Ben Kanowsky, Inc., supra, 361 U.S. at
p. 392; e.g., Guerrero, supra, 213 Cal.App.4th at p. 941.) The snippet in the instruction
stating that the exemption is "designed to facilitate youth summer employment" is taken
from a federal circuit opinion addressing the legislative history of the exemption.
(Brennan v. Yellowstone Park Lines, supra, 478 F.2d at p. 288.)
22
The mere fact that language in a proposed jury instruction comes from case
authority does not qualify it as a proper instruction. "The admonition has been frequently
stated that it is dangerous to frame an instruction upon isolated extracts from the opinions
of the court." (Francis v. City & County of San Francisco (1955) 44 Cal.2d 335, 341.) As
another court noted, judicial opinions are not written as jury instructions, are notoriously
unreliable as such, and may have a confusing effect upon a jury. (Merritt v. Reserve Ins.
Co. (1973) 34 Cal.App.3d 858, 876, fn. 5.) While the first sentence of the proposed
instruction might be an accurate statement of law that appellants could argue to the jury, it
is not for the court to make argument to the jury in the form of an instruction. Further, the
second sentence, stating that the exemption is "designed to facilitate youth summer
employment" is arguably misleading in that it suggests that the exemption properly applies
only to such an activity. We agree with the trial court's conclusion that the proposed
instruction was inappropriate. Thus, the trial court did not err in refusing appellants'
proposed instruction number 3.
Proposed instruction number 7 stated: "In considering whether an establishment
qualifies as an amusement establishment and/or a recreational establishment, you are to
construe the terms 'amusement' and 'recreation' narrowly against the . . . DAA and in favor
of the Plaintiffs." While it is undisputed that exemptions "are to be narrowly construed
against the employers seeking to assert them" (Arnold v. Ben Kanowsky, Inc., supra, 361
U.S. at p. 392; Guerrero, supra, 213 Cal.App.4th at p. 941), it does not follow that the
terms "amusement" and "recreation" should be construed narrowly against the employer.
The proposed instruction is improperly argumentative.
23
Proposed instruction number 15 provided: "In order for an establishment to qualify
as an amusement or recreation establishment, the majority of the establishment's income
must be generated by amusement or recreational activities, excluding revenues from food
and drink sales, concessions, and gifts." (Italics added.)
Appellants assert that the proposed instruction is an accurate, nonargumentative
statement of the law derived from DOL 2006-39, as cited in Mann v. Falk (11th Cir. 2013)
523 Fed.Appx. 549, 552-553 (Mann). They contend that the evidence presented at trial
revealed that the fair generates 50 percent of the DAA's gross revenue, but that only ten to
thirteen percent of that amount is from the amusement park and rides, with the remainder
of the revenue coming from food and beverage sales, parking, commercial space rentals,
corporate sponsorships and merchandising. Appellants argue that this latter income does
not qualify as amusement or recreational and that the failure to give the proposed
instruction likely impacted the verdict.
In DOL 2006-39, the DOL issued an opinion addressing whether employees of a
client who provided overnight vacation excursions of three- to ten-days duration on small
vessels were exempt as amusement or recreational in nature under the FLSA. The DOL
found, based on the information provided, that it appeared "your client's vessels have an
'amusement or recreational' character" since the "primary activities of the vessels include
sightseeing, exploring sights and nature, nature-related and sight-related discussions and
lectures, group activities and programs, meals, and other similar activities." (DOL 2006-
39.) Citing Texas City, supra, 492 F.2d at pp. 1119-1120, the DOL then cautioned, that the
establishment's primary source of income is examined "in determining the nature of the
24
establishment. Thus, if the majority of your client's income is derived from food, drink,
lodging, concessions, and gifts, rather than from the premium portion of ticket sales paid
for the nature-related and sight-related aspects of the excursion and entertainment, that
would weigh against your client's vessels having an amusement or recreational character."
(DOL 2006-39, supra.)
While the Texas City court concluded that the principal activity of the establishment
was determinative as to its eligibility of an exemption, nowhere in the opinion did the
Texas City court discuss income derived from food, drink, lodging, concessions and gifts.
(Texas City, supra, 492 F.2d at p. 1119.) The Mann court similarly cited "food, drink,
lodging, concessions, and gifts" from DOL 2006-39 for the proposition that the source of
the income affected whether the exemption applied, but there is no information in Mann
concerning where this phrase originated. (Ibid.) DOL 2006-39 shows that the phrase
originates from the DOL's Field Operations Handbook in a section specifically addressing
"riverboat cruises." (DOL 2006-39, citing DOL Field Operations Handbook § 25j17 (May
27, 1994), located at < http://www.dol.gov/whd/FOH/FOH_Ch25.pdf> [as of July 12,
2016].)
We conclude that the trial court did not err in refusing to give proposed instruction
number 15, since there is no authority indicating that it is a correct statement of the law
when applied to an entity such as the DAA. Additionally, as noted above, the source of
income is but one factor to consider in determining whether an establishment is primarily
25
amusement or recreational in character. (Ante, p. I.C.2.) The source of the DAA's income
was an evidentiary issue more appropriately argued by the parties.6
c. Appellants' Proposed Special Jury Instruction Number 4
This instruction stated: "In this case, the . . . DAA contends that the Plaintiffs'
employment is 'exempt' because the . . . DAA assertedly qualifies as an establishment
which is an amusement or recreational establishment. Plaintiffs dispute this. Plaintiffs also
contend that the . . . DAA actually constitutes multiple establishments for purposes of the
exemption law, and Plaintiffs dispute that these assertedly multiple establishments qualify
for the claimed exemption."
Appellants' argue that a jury instruction may properly contain a statement of a
party's contentions and that the trial court erred when it refused the instruction. To support
their argument, appellants cited Tesoro Del Valle Master Homeowners Assn. v. Griffin
(2011) 200 Cal.App.4th 619, in which the appellate court noted: "As part of the jury
instructions, the trial court informed the jury about the nature of the dispute and the parties'
contentions . . . ." (Id. at p. 628.) Nothing in the opinion addresses the propriety of this
practice and " '[i]t is axiomatic that cases are not authority for propositions not
considered.' " (In re Marriage of Cornejo (1996) 13 Cal.4th 381, 388.)
Assuming, without deciding, that the trial court erred in refusing to give the
proposed instruction, appellants have not shown that they were prejudiced, i.e., they have
6 The record does not show that appellants ever sought to modify its proposed
instruction number 15 to eliminate this phrase, but retain the concept that the jury could
appropriately examine the source of the establishment's revenue as a factor in determining
whether the principal activity of the establishment was amusement or recreational.
26
not shown that it is probable that the assumed error prejudicially affected the verdict.
(Soule, supra, 8 Cal.4th at p. 580.) "Actual prejudice must be assessed in the context of the
individual trial record. . . . Thus, when deciding whether an error of instructional omission
was prejudicial, the court must also evaluate (1) the state of the evidence, (2) the effect of
other instructions, (3) the effect of counsel's arguments, and (4) any indications by the jury
itself that it was misled." (Id. at pp. 580-581, fn. omitted.) Appellants have provided no
argument concerning these factors and have not convinced us that failure to give the
proposed instruction prejudiced them.
d. Appellants' Proposed Special Jury Instruction Number 5
Proposed jury instruction number 5 stated: "The . . . DAA has the burden to prove
all facts necessary to establish its claim of exemption."
Appellants' assert that the proposed instruction is an accurate, nonargumentative
statement of the law and, taken together with proposed instruction number 4, would have
instructed the jury that the DAA had the burden of proof as to whether all of the DAA's
business operations, locations, buildings and departments constitute a single establishment
(the "identification-of-establishment" question). Appellants note that the identification-of-
establishment question is one of three jury interrogatories presented in the verdict form and
claim that they were entitled to an accurate instruction as to the burden of proof. The DAA
asserts that the proposed instruction was unnecessary because other jury instructions
advised the jury that the DAA had the burden of proof. We agree with the DAA.
A judgment may not be reversed "based upon the failure to give particular
instructions if the point is covered adequately by instructions which were given." (Mathis
27
v. Morrissey (1992) 11 Cal.App.4th 332, 343.) The court instructed that the DAA claimed
it was exempt from paying overtime and that to prevail, the DAA "must prove" that "[t]he
nature of the establishment for which Plaintiffs worked, is amusement or recreational" and
that the DAA satisfied the receipts test. The court also instructed the jury on the definition
of "establishment" and the phrase "amusement or recreational." Taken together, these
instructions adequately conveyed to the jury that the DAA had the burden of proof on all
elements of the amusement exemption.
Even assuming that the trial court erred in refusing to give the proposed instruction,
appellants have not shown that a miscarriage of justice resulted from the assumed error
such that there is a reasonable probability that in the absence of the error, they would have
obtained a more favorable result. (Soule, supra, 8 Cal.4th at p. 580.) During the course of
the trial, the court commented to the jury that the DAA bore the burden of proof. During
closing argument, the DAA stated that it carried the burden of proof in this matter.
Appellants' counsel commented at the beginning of his closing argument that the DAA had
"the burden of proof on every item in this case." When reviewing the verdict form with the
jury, appellants' counsel again reminded the jury that the DAA had the burden of proof on
every issue, arguing that the DAA had not met its burden of proving that all of its
operations and departments constituted a single establishment. On this record, any
assumed error in not given the proposed instruction was not prejudicial.
e. Appellants' Proposed Special Jury Instruction Number 8
Proposed jury instruction number 8 stated: "In considering whether an employee's
employment is by an establishment which qualifies as an amusement establishment and/or
28
a recreational establishment, you may consider whether the work actually performed by the
particular employee is 'amusement' and/or 'recreational' in nature."
As discussed above, we have concluded that eligibility for the amusement
exemption turns on the nature of the employer's activities, not on the type of work
performed by the individual employees. (Ante, pt. I.B.) Accordingly, the trial court
properly rejected this instruction because it is not a correct statement of law.
f. Appellants' Proposed Special Jury Instruction Number 9
This instruction stated: "In order to meet the requirement of actual employment by
the establishment claimed to be exempt, an employee, whether performing his [or] her
duties inside or outside the establishment, must be employed by his or her employer in the
work of the exempt establishment itself in activities within the scope of its exempt
business."
Appellants' assert that this proposed instruction is a nearly verbatim quotation from
29 C.F.R. § 779.308 (2015).7 Appellants maintain that an employee cannot be exempt if
he or she is not actually employed by an exempt establishment and that the trial court erred
in refusing the proposed instruction, since it prescribes the facts that must be proven to
"meet the requirement of actual employment by the establishment." As we concluded
above, application of the amusement exemption turns on the nature of the employer's
7 29 C.F.R. § 779.308 (2015) provides: "Employed within scope of exempt business.
[¶] In order to meet the requirement of actual employment 'by' the establishment, an
employee, whether performing his duties inside or outside the establishment, must be
employed by his employer in the work of the exempt establishment itself in activities
within the scope of its exempt business." (Citations omitted.)
29
business, not on the nature of the employee's work. (Ante, pt. I.B.) Appellants' reliance on
29 C.F.R. § 779.308 is misplaced; this regulation is relevant to determining whether an
employee is "employed by" an exempt establishment. It does not address an employer's
entitlement to claim a particular exemption.
g. Appellants' Proposed Special Jury Instruction Number 14
Proposed instruction number 14 stated: "An employee may be overtime-eligible in
one week, but not overtime-eligible in the next week. If an employee does some work for
an exempt establishment, and some work for a non-exempt establishment, during the same
workweek, that employee must be treated as overtime-eligible for that week. The burden
to separate between exempt and non-exempt work as between particular workweeks for a
given employee, or as between different groups of employees, is imposed by law upon the
employer."
Appellants' state that proposed instruction number 14 is drawn from 29 C.F.R.
30
§ 776.4. (2015)8 They claim that the trial court erred in refusing to give the instruction
because the evidence presented at trial supported a finding that they performed substantial
work that was not within the scope of the amusement exemption. Appellants further
maintain that the commingling of non-exempt work with exempt work would be fatal to
any claim of exemption for the workweek in which the commingling occurred. We
disagree.
8 29 C.F.R § 776.4 (2015) provides: "(a) The workweek is to be taken as the standard
in determining the applicability of the Act. [Footnote omitted.] Thus, if in any workweek
an employee is engaged in both covered and noncovered work he is entitled to both the
wage and hours benefits of the Act for all the time worked in that week, unless exempted
therefrom by some specific provision of the Act. The proportion of his time spent by the
employee in each type of work is not material. If he spends any part of the workweek in
covered work he will be considered on exactly the same basis as if he had engaged
exclusively in such work for the entire period. Accordingly, the total number of hours
which he works during the workweek at both types of work must be compensated for in
accordance with the minimum wage and overtime pay provisions of the Act.
"(b) It is thus recognized that an employee may be subject to the Act in one workweek and
not in the next. It is likewise true that some employees of an employer may be subject to
the Act and others not. But the burden of effecting segregation between covered and
noncovered work as between particular workweeks for a given employee or as between
different groups of employees is upon the employer. Where covered work is being
regularly or recurrently performed by his employees, and the employer seeks to segregate
such work and thereby relieve himself of his obligations under sections 6 and 7 with
respect to particular employees in particular workweeks, he should be prepared to show,
and to demonstrate from his records, that such employees in those workweeks did not
engage in any activities in interstate or foreign commerce or in the production of goods for
such commerce, which would necessarily include a showing that such employees did not
handle or work on goods or materials shipped in commerce or used in production of goods
for commerce, or engage in any other work closely related and directly essential to
production of goods for commerce. [Footnote omitted.] The Division's experience has
indicated that much so-called 'segregation' does not satisfy these tests and that many so-
called 'segregated' employees are in fact engaged in commerce or in the production of
goods for commerce."
31
29 C.F.R. § 776.4 (2015) is contained in part 776, entitled an "interpretative bulletin
on the general coverage of the wage and hours provisions of the" FLSA. (See 29 C.F.R.
subpt. B, Ch. V, subch. B, pt. 776.) As the title explains, the regulations in part 776 pertain
to determining coverage under the FLSA. The FLSA defines "covered" employees as
those who are " 'engaged in commerce or in the production of goods for commerce.' " (29
C.F.R. § 776.0 (2015).) These regulations do not address whether particular employees,
who come under the purview of the FLSA, are subject to an exemption. Thus, the trial
court did not err in refusing to give the instruction because it was not relevant to the issues
before the jury.
h. Respondent's Special Instruction No. 3
Appellants claim that the trial court erred in instructing the jury with respondent's
Special Instruction No. 3, and that the error was prejudicial. This instruction stated: "In
situations involving an Establishment with more than one department, those departments
can still collectively constitute a single 'Establishment.' More than one department
collectively constitutes a single Establishment unless you find all of the following: [¶]
1. The department is physically separated from the other activities of the Establishment;
and [¶] 2. The department is functionally operated separately from the Establishment; and
[¶] 3. The department has separate records and separate bookkeeping from the
Establishment; and [¶] 4. There is no interchange of employees between the department
and the Establishment. [¶] In evaluating whether more than one department constitutes a
single Establishment, the critical factors are economic, physical, and functional separation
between the departments. No single factor controls, but even when an Establishment has
32
many departments, so long as they are operated as integral parts of the same Establishment,
they constitute one single Establishment."
Appellants concede that this instruction is drawn from 29 C.F.R. § 779.305 (2015),
but assert that the instruction is an incomplete statement of the law because it omits
important concepts contained within the regulation. Specifically, appellants note that the
regulation provides that, in order to support a finding that an employer operates only one
establishment, the "interchange" of its employees among its departments must constitute,
". . . indiscriminate use of the employee in both units without regard to the segregated
functions of such units." (29 C.F.R., § 779.305 (2015), italics added; see fn. 4, ante.)
Without this limitation, appellants contend, the instruction was inaccurate and misleading.
Assuming, without deciding, that the omission of the word "indiscriminate" rendered the
instruction inaccurate and misleading, appellants have failed to address the Soule factors,
including the state of the evidence, the effect of other instructions, the effect of counsel's
arguments, and whether the jury was misled. (Soule, supra, 8 Cal.4th at pp. 580-581.)
Thus, they have failed to convince us that the assumed error prejudicially affected the
verdict.
E. Verdict Form
1. Background
Appellants submitted a proposed special verdict form that contained eight separate
questions. The questions asked the jury to determine whether the DAA had proven that its
employees were ineligible to receive overtime compensation based on where they worked
(interim events, the Horsepark, the main parcel, recreation center or satellite wagering
33
premises) and whether the fair was in session or was not in session. The special verdict
form proposed by the DAA contained five questions, some with subparts. The trial court
rejected both proposed verdict forms. Instead, the trial court presented the parties with a
special verdict form that it had drafted. The three question special verdict form prepared
by the court asked: "1. How many establishments did [the DAA] operate? One [or] Two or
more; 2. For each establishment in your answer to question 1 for which Plaintiffs worked,
was the nature of the establishment amusement or recreational? Yes [or] No"; and "3. For
each establishment in your answer to question 1 for which Plaintiffs worked, was the
establishment's average receipts for any six months of such year no more than 33 1/3 per
centum of the establishment's average receipts for the other six months of such year? Yes
[or] No."
The court discussed each question on its proposed verdict form with counsel.
Appellants' counsel expressed no objection to question one, stating that it was "a good way
to start." Appellants' counsel had "no problem" with question two. After discussing
question three with the court, appellants' counsel stated that he had "no problem" with
question three. When asked whether he had "[a]ny particular objections to the proposed
verdict form," appellants' counsel responded "no."
During trial, the court commented that it would ultimately decide whether the
amusement exemption applied, based on the jury's predicate findings. After the jury
rendered its verdict, appellants argued that the judgment should identify each plaintiff in
the collective action. Appellants further noted that by agreeing to the form of the
judgment, they were not waiving their contention that "there may be one or more issues"
34
that had not been presented to the jury, including whether an employer may utilize the
amusement exemption "while loaning out employees to non-exempt outside event
promoters, and charging the non-exempt outside event promoters for the employees' labor,
plus a markup." The DAA responded, stating that it was not aware of any authority
requiring that all plaintiffs in a representative action be included in the judgment. The
DAA also noted that appellants had argued to the jury that loaning employees to vendors
did not fall within the amusement exemption, and that the jury necessarily rejected the
argument. The DAA suggested that the appropriate way to address this issue would be by
filing a motion for relief from the verdict and judgment. The trial court later entered a
judgment in which the court noted that it had read and considered the parties' respective
posttrial briefs. However, the judgment did not explicitly state that, based on the jury's
findings, the court had concluded that the amusement exemption applied to the DAA, and
appellants did not bring the omission to the trial court's attention.
2. Analysis
Appellants contend that the verdict form was fatally defective because it did not
allow the jury to resolve every controverted issue. Specifically, they claim that the verdict
form failed to ask the jury whether the majority of the DAA's revenues are derived from
activities that are amusement or recreational in nature, so as to satisfy the "principal
activity" test. Assuming that the principal activity test was satisfied, they contend that the
jury should have been asked whether the exemption applies when: (1) the DAA assigns its
employees to perform work to support interim events presented by outside promoters in
connection with non-amusement, non-recreational events, and charges the outside
35
promoters for respondent's employees' labor (plus a markup); (2) appellants perform work
that was neither amusement nor recreational in nature; and (3) appellants perform work that
is not within the scope of the DAA's assertedly exempt business.
The DAA contends that appellants waived any objection to the verdict form by
failing to object in the trial court. Appellants dispute this contention, stating that while
they found no fault in the three jury interrogatories, they never acquiesced in the trial
court's refusal to present to the jury the question whether the claimed exemption could be
properly applied to appellants. We agree with the DAA.
An objection to the form of questions in a special verdict must be raised in the trial
court or the issue is waived on appeal. (Orient Handel v. United States Fid. & Guar. Co.
(1987) 192 Cal.App.3d 684, 700.) After the trial court rejected their proposed verdict
form, appellants did not attempt to revise their verdict form, nor did they ask the court to
revise its proposed verdict form. When specifically asked whether he had "[a]ny particular
objections to the proposed verdict form," appellants' counsel responded "No," and did not
voice any concerns that the court's proposed verdict form, while not objectionable, was
incomplete. Moreover, after the jury rendered its verdict, appellants did not raise their
concern with the trial court, nor did they ask to have the jury correct or clarify the verdict
before the court discharged the jury. (Code Civ. Proc., § 619 ["When the verdict is
announced, if it is informal or insufficient, in not covering the issue submitted, it may be
corrected by the jury under the advice of the court, or the jury may be again sent out."].)
Finally, appellants did not preserve the issue by raising it in a motion for new trial. (All-
36
West Design, Inc. v. Boozer (1986) 183 Cal.App.3d 1212, 1220 [challenge to use of verdict
forms may be raised for first time in motion for new trial].)
On this record, we conclude that appellants forfeited any claimed defect in the
special verdict form. To the extent that appellants claim that, after the jury rendered its
verdict, the trial court failed to determine the ultimate question whether the amusement
exemption applied, this issue was also forfeited. The record does not show that appellants
raised the issue after the jury rendered its verdict. In any event, under the doctrine of
implied findings, we presume that the trial court made all factual findings necessary to
support the judgment in favor of the DAA. (Laabs v. City of Victorville (2008) 163
Cal.App.4th 1242, 1271-1272.)
F. Exclusion of Class Members
1. Background
During trial, appellants' counsel noted that his witnesses were in the hallway and
stated, "[b]ecause they filed joinders in a collective action, I believe they're parties for
purposes of [Evidence Code] section 777," indicating that the witness/parties should be
permitted to remain in the courtroom during trial proceedings. Counsel for the DAA
objected, stating "they can have a representative, but I don't think the witnesses should be
here watching other witnesses." The trial court sustained the DAA's objection. Appellants'
counsel did not argue the matter further and indicated that his assistant would make sure
people were "lined up" outside the courtroom.
2. Analysis
37
Evidence Code section 777 states that "the court may exclude from the courtroom
any witness not at the time under examination so that such witness cannot hear the
testimony of other witnesses," but also provides that "[a] party to the action cannot be
excluded under this section." "The purpose of [a witness exclusion] order is to prevent
tailored testimony and aid in the detection of less than candid testimony." (People v.
Valdez (1986) 177 Cal.App.3d 680, 687.) We review a ruling on a motion to exclude
witnesses for abuse of discretion. (People v. Griffin (2004) 33 Cal.4th 536, 574.)
Appellants assert that the trial court erred because they are parties in interest that
may not be excluded from the courtroom under Evidence Code section 777. The DAA
contends that appellants forfeited this issue by not raising it below, noting that the actual
issue before the trial court was whether appellants' party witnesses could, for the first time
beginning on the third day of trial, be present in the courtroom while appellants' other
witnesses testified.
The parties have not cited, and we have not found, any case law addressing the
application of Evidence Code section 777 to collective actions under the FLSA. We note,
however, that even a party does not have an absolute right to attend trial. (Province v.
Center for Women's Health & Family Birth (1993) 20 Cal.App.4th 1673, 1686.) By
sustaining the DAA's objection, the trial court agreed that class members who were
witnesses should not be listening to the testimony of other witnesses. Appellants' counsel
never asked the trial court to rule on whether any of the 177 class members, who were not
designated as witnesses, could be excluded from the courtroom and we decline to infer
such a ruling on this limited record. Additionally, appellants' counsel never pursued the
38
matter, by, for example, asking to take witnesses out of order to prevent the exclusion of a
party witness from the courtroom or making an offer of proof that counsel required the
presence of the excluded party witnesses at counsel table to assist in the prosecution of the
case.
On this record, we conclude that the trial court did not err by excluding party
witnesses from the courtroom. Additionally, a judgment may not be reversed on appeal
unless, after an examination of the entire cause, including the evidence, it appears that the
error caused a miscarriage of justice. (Cal. Const., art. VI, § 13.) Even assuming that the
trial court erred, appellants have not shown how excluding party witnesses from the
courtroom during the testimony of other party witnesses resulted in any prejudice.
II. Demurrer to Section 510 Claim
A. Standard of Review
We review an order sustaining a demurrer without leave to amend de novo (McCall
v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415), assuming the truth of all properly
pleaded facts as well as facts inferred from the pleadings, and giving the complaint a
reasonable interpretation by reading it as a whole and its parts in context. (Palacin v.
Allstate Ins. Co. (2004) 119 Cal.App.4th 855, 861.) A complaint will be construed
"liberally . . . with a view to substantial justice between the parties." (Code Civ. Proc.,
§ 452.) "[I]f there is a reasonable possibility the defect in the complaint could be cured by
amendment, it is an abuse of discretion to sustain a demurrer without leave to amend."
(City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith (1998) 68 Cal.App.4th 445,
459 (City of Atascadero).) A trial court may abuse its discretion in sustaining a demurrer
39
without leave to amend even though the plaintiff never requested leave to amend. (Code
Civ. Proc., § 472c, subd. (a); City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 746
["The issue of leave to amend is always open on appeal, even if not raised by the
plaintiff."].) The plaintiff has the burden of demonstrating how the complaint can be
amended to state a valid cause of action. (Schifando v. City of Los Angeles (2003) 31
Cal.4th 1074, 1081.)
"To the extent issues of statutory interpretation are raised, we apply the rules of
statutory construction and exercise our independent judgment as to whether the complaint
states a cause of action. [Citation.] Our first task in construing a statute is to ascertain the
Legislature's intent in order to carry out the purpose of the law. If the statutory language is
clear and unambiguous, no judicial construction is required. If the statute is ambiguous,
the words must be construed in context in light of the statutory purpose." (Doe v. Doe 1
(2012) 208 Cal.App.4th 1185, 1188-1189.)
B. Analysis
Appellants alleged that under section 510, the DAA was required to pay them
overtime compensation for any work in excess of eight hours in one workday and any work
in excess of 40 hours in any workweek. (§ 510, subd. (a).) The DAA demurred to
appellants' section 510 claim on the ground that section 510 does not apply to public entity
employees. Appellants responded to the demurrer, stating that they "expected" that the
trial court would sustain the demurrer because the court would be bound to follow Johnson
v. Arvin-Edison Water Storage District (2009) 174 Cal.App.4th 729 (Johnson), which held
that section 510 does not apply to public entities. Nonetheless, appellants asserted the
40
section 510 claim to preserve this issue for appellate review, stating that the Supreme Court
has apparently not decided the question whether non-constitutionally-immune public
employers are subject to section 510. We agree that section 510 does not apply to the
DAA. Nevertheless, we conclude that the trial court erred in sustaining the demurrer
without leave to amend because appellants have shown how they can amend their
complaint to allege a potentially valid claim for overtime compensation.
California law, codified at section 510, requires overtime compensation for "[a]ny
work in excess of eight hours in one workday and any work in excess of 40 hours in any
one workweek." (§ 510, subd. (a).) In interpreting section 510, the Johnson court
recognized the established rule that public entities are not subject to a general statute unless
expressly included. (Johnson, supra, 174 Cal.App.4th at p. 736.) The Johnson court also
recognized an exception to this rule, i.e., that government agencies are excluded from a
statute only if their inclusion would result in an infringement upon sovereign governmental
powers. (Id. at p. 738.) "A statute infringes upon a public entity's sovereign powers if the
statute affects the entity's governmental purposes and functions." (Ibid.)
Applying maxims of statutory construction to the Labor Code, the Johnson court
held that the water district, as a public entity, was exempt from section 510, noting that the
Legislature expressly refers to public entities when it intends them to be included.
(Johnson, supra, 174 Cal.App.4th at pp. 736-738.) Thus, the indicia of legislative intent
led the Johnson court to conclude that a water district was exempt from section 510, but
"[i]n any event, the [water] District [was] also exempt" under the sovereign powers canon
of statutory interpretation. (Id. at p. 738.) Specifically, the Johnson court noted that the
41
Water Code granted the water district the statutory power to set employees' compensation
(citing Wat. Code, §§ 39059, 43152, subd. (c)) and concluded that subjecting the water
district to section 510 would infringe upon its sovereign powers to set employees'
compensation. (Johnson, supra, at p. 739.)
Appellants assert that Johnson is distinguishable because the water district had the
regulatory power to set employees' compensation under the Water Code. Appellants note
that unlike the water district in Johnson, the DAA does not have sovereign power over
employee compensation and thus, should be required to comply with section 510. The
DAA contends that appellants did not make this argument below and that they have thus
forfeited the issue. On the merits, the DAA asserts that applying section 510 would
interfere with its sovereign power and its ability to perform its legislative purpose.
Because the question presented is one of law, we exercise our discretion to resolve the
issue on the merits. (UFITEC, S.A. v. Carter (1977) 20 Cal.3d 238, 249, fn. 2.)
Appellants contend that section 510 applies to "any work" and that this plain
language permits no exception. However, whether requiring the DAA to comply with
section 510 infringes on the DAA's sovereign powers (i.e., its governmental purposes and
functions) cannot be determined by examining section 510 in isolation. (Johnson, supra,
174 Cal.App.4th at p. 738.) Rather, wage and hour claims in California are governed "by
two complementary and occasionally overlapping sources of authority[;]" namely, the
Labor Code as enacted by the Legislature and a series of wage orders adopted by the
Industrial Welfare Commission (IWC). (Brinker Restaurant Corp. v. Superior Court
(2012) 53 Cal.4th 1004, 1026 (Brinker).) The IWC has constitutional and statutory
42
authority to adopt wage orders prescribing, among other things, maximum hours of
employment for employees in California. (Cal. Const., art. XIV, § 1; §§ 70-74, 1171-1204;
Ramirez v. Yosemite Water Co. (1999) 20 Cal.4th 785, 795.) Section 1173 gives the IWC
the statutory authority to regulate the working conditions of employees in California,
including setting standards for maximum hours. (Sheppard v. North Orange County
Regional Occupational Program (2010) 191 Cal.App.4th 289, 304 (Sheppard).)
The first paragraph of section 1173 provides: "It is the continuing duty of the
[IWC], . . . to ascertain the wages paid to all employees in this state, to ascertain the hours
and conditions of labor and employment in the various occupations, trades, and industries
in which employees are employed in this state, and to investigate the health, safety, and
welfare of those employees." Notably, "section 1173 broadly refers to " 'all employees in
this state,' " which necessarily includes employees working in the public sector.
(Sheppard, supra, 191 Cal.App.4th at p. 305.)
Wage orders are codified in Title 8 of the California Code of Regulations. (Cal.
Code Regs., tit. 8, §§ 11000, et seq.)9 Wage orders are "quasi-legislative regulations and
are construed in the same manner as statutes under the ordinary rules of statutory
construction." (Securitas Security Services., USA, Inc. v. Superior Court (2011) 197
Cal.App.4th 115, 121.) Although the Legislature stopped funding the IWC in 2004, its
wage orders remain in full force and effect. (United Parcel Service Wage & Hour Cases
(2010) 190 Cal.App.4th 1001, 1009, at fn. 2.) IWC wage orders are given "extraordinary
9 We grant the DAA's request for judicial notice of certain wage orders, official
notices pertaining to wage notices, and legislative materials pertaining to certain wage
orders. (Evid. Code, §§ 452, subd. (b) & 459.)
43
deference, both in upholding their validity and enforcing their specific terms." (Martinez v.
Combs (2010) 49 Cal.4th 35, 61.) To the extent a wage order and a statute overlap, we will
seek to harmonize them, as with any two statutes. (Brinker, supra, 53 Cal.4th at p. 1027.)
Similar to the FLSA, the IWC has a wage order regulating the amusement and
recreation industry. (Cal. Code Regs., tit. 8, § 11100 [wage order 10-2001].) The wage
order defines an amusement and recreation industry as "any industry, business, or
establishment operated for the purpose of furnishing entertainment or recreation to the
public, including but not limited to theaters, dance halls, bowling alleys, billiard parlors,
skating rinks, riding academies, racetracks, amusement parks, athletic fields, swimming
pools, gymnasiums, golf courses, tennis courts, carnivals, and wired music studios." (Id. at
(2)(A).) Wage order 10-2001 applies to "all persons employed in the amusement and
recreation industry" and limits them to an eight-hour work day or 40 hours per work week.
(Cal. Code Regs., tit. 8, § 11100(1) & (3)(A)(1).) Wage order 10-2001 contains a number
of exceptions to this requirement. (Cal. Code Regs., tit. 8, § 11100(1)(B), (C) & (D).) As
relevant here, it exempts "employees directly employed by the State or any county,
incorporated city or town or other municipal corporation, or to outside salespersons." (Cal.
Code Regs., tit. 8, § 11100(1)(C).)
Appellants do not contend that wage order 10-2001 does not apply to the DAA, nor
could they so argue, since the DAA is a "state institution" (Food & Agric. Code, § 3953)
created for the express purposes of "[h]olding fairs, expositions and exhibitions" and
"[c]onstructing, maintaining, and operating recreational and cultural facilities of general
public interest." (Food & Agric. Code, § 3951.)
44
Notably, a prior version of wage order 10 (wage order 10-1989) provided that
employees in the amusement and recreation industry "shall not be employed more than
eight (8) hours in any workday or more than 40 hours in any workweek" unless paid
overtime compensation. (Cal. Code Regs., tit. 8, § 11100(3)(A), as of 1989.) Nonetheless,
wage order 10-1989 exempted from its provisions "employees directly employed by the
State or any county, incorporated city or town or other municipal corporation, or to outside
salespersons." (Cal. Code Regs., tit. 8, § 11100(1)(B), as of 1989.)
"[In 1999,] the Legislature passed the 'Eight-Hour-Day Restoration and Workplace
Flexibility Act of 1999.' (Stats. 1999, ch. 134, § 1, p. 1820, adding and amending
provisions of Lab. Code, § 500 et seq.) The act amended section 510, which provides that
a California employee is entitled to overtime pay for work in excess of eight hours in one
workday or 40 hours in one week. (§ 510, subd. (a).)" (Harris v. Superior Court (2011) 53
Cal.4th 170, 177-178.) Despite the passage of section 510 in 1999, the current version of
wage order 10 (wage order 10-2001, effective January 1, 2001) also provides for overtime
compensation, but continues to exempt public employees in the amusement and recreation
industry from the overtime requirement. (Cal. Code Regs., tit. 8, § 11100(1)(C) &
(3)(A)(1).)
Thus, when it enacted section 510, the Legislature was aware that wage order 10
exempted public employees in the amusement and recreation industry from overtime
compensation. (In re Greg F. (2012) 55 Cal.4th 393, 407 ["The Legislature is presumed to
be aware of all laws in existence when it passes or amends a statute."].) Accordingly,
when section 510 and wage order 10 are viewed together, the inescapable conclusion is that
45
public employees in the amusement and recreation industry are exempt from state overtime
requirements.
To avoid this result, appellants contend that wage order 10 does not create an
exemption to the statutory requirement for overtime compensation contained in section 510
because wage order 10 states, "the provisions of this order shall not apply to any
employees directly employed by the State or any political subdivision thereof, including
any city, county, or special district." (Cal. Code Regs., tit. 8, § 11100, Section 1(C), italics
added.) Appellants claim that wage order 10 does not advance the DAA's position because
it does not purport to exempt public employees from section 510. We reject appellants'
argument. The express language of wage order 10 essentially implements section 510.
(Cal. Code Regs., tit. 8, § 11100(3)(A)(1) ["employees shall not be employed more than
eight (8) hours in any workday or more than 40 hours in any workweek" unless paid
overtime compensation]; compare, § 510, subd. (a) ["Eight hours of labor constitutes a
day's work. Any work in excess of eight hours in one workday and any work in excess of
40 hours in any one workweek…" is entitled to overtime compensation].) Wage order 10
then exempts public employees in the amusement or recreation industry from the overtime
requirement. (Cal. Code Regs., tit. 8, § 11100, subd. (1)(C).)
Moreover, appellants' argument ignores section 1173 (in effect at the time the
Legislature enacted section 510), which gives the IWC the statutory authority to set
maximum hours and refers to " 'all employees in this state,' " which necessarily includes
employees working in the public sector. (Sheppard, supra, 191 Cal.App.4th at p. 305.)
Additionally, section 515, which was enacted along with section 510, provides that
46
"nothing in this section requires the commission to alter an exemption from provisions
regulating hours of work that was contained in a valid wage order in effect in 1997."
(§ 515, subd. (b).) As we previously noted, since 1989, wage order 10 has continuously
exempted public employees in the amusement and recreation industry from overtime
requirements, both before and after the enactment of section 510. Thus, the trial court
properly sustained the demurrer to the section 510 claim.
C. Leave to Amend
Appellants contend that this court should hold that the DAA is required to comply
with section 510 when it loans out its employees to outside promoters to support "interim
events," such as gun shows, bridal bazaars, private parties, weddings, Christmas tree sales,
hot tub sales, home and garden shows, and charges the outside promoters the labor costs of
employing the employees, plus a markup. They assert that when they are performing work
for these outside entities, they are not public employees performing exempt work.
Appellants concede that their complaint did not contain any averments regarding the
DAA's loaning of its employees to outside promoters to support interim events, but claim
that such averments were not required because the DAA bore the burden of proving the
exemption from section 510 as an affirmative defense. To the extent that we disagree with
this contention, appellants argue that they should be allowed leave to amend to add
averments that conform to the evidence presented at trial.
"[A] demurrer based on an affirmative defense will be sustained only where the face
of the complaint discloses that the action is necessarily barred by the defense." (Casterson
v. Superior Court (2002) 101 Cal.App.4th 177, 183.) As we have discussed, the trial court
47
properly sustained the DAA's demurrer because the face of the complaint disclosed that the
DAA is exempt from the requirements of section 510. (Ante, pt. II.B.) Thus, we next
consider whether appellants should be allowed leave to amend their complaint.
As we have already noted, it is an abuse of discretion to sustain a demurrer without
leave to amend if there is a reasonable possibility that the plaintiff can amend the complaint
to cure its defects. (City of Atascadero, supra, 68 Cal.App.4th at p. 445.) It is irrelevant
that appellants did not seek leave to amend in the trial court, since this issue is always open
on appeal. (Code Civ. Proc., § 472c, subd. (a).) Appellants must show in what manner
their pleading can be amended and how the amendment changes the legal effect of the
pleading. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) In this regard, appellants
assert that they can amend the complaint to allege that when they work on interim events,
the DAA is a joint employer with the outside promoters and must therefore comply with
section 510.
Where joint employment exists, all employers are individually responsible for
compliance with the FLSA. (Bonnette v. Calif. Health & Welfare Agency (9th Cir. 1983)
704 F.2d 1465, 1469.) Courts examining whether joint employment exists under the FLSA
consider a number of factors, including whether the alleged additional employer: had the
power to hire and fire employees; supervised and controlled employee work schedules or
employment conditions; determined the rate and method of payment; maintained
employment records; owned the facilities where the employee worked; and made
significant investments in equipment and facilities. (Bonnette v. Calif. Health & Welfare
Agency, supra, 704 F.2d at p. 1470.)
48
Joint employment is also recognized under California law. "Joint employment
occurs when two or more persons engage the services of an employee in an enterprise in
which the employee is subject to the control of both." (In-Home Supportive Services v.
Workers' Comp. Appeals Bd. (1984) 152 Cal.App.3d 720, 732 [addressing dual
employment and dual workers' compensation liability].) " 'Employ' means to engage,
suffer, or permit to work." (Cal. Code Regs., tit. 8, § 11100, Section 2(E).) An
" '[e]mployee' means any person employed by an employer" and an " '[e]mployer' means
any person . . . who . . . employs or exercises control over the wages, hours, or working
conditions of any person." (Cal. Code Regs., tit. 8, § 11100, section 2. (F) & (G).)
In Guerrero, supra, 213 Cal.App.4th 912, an in-home support services (IHSS)
worker brought an action against the program recipient, the county and the county's IHSS
public authority for unpaid wages and overtime under the FLSA and the Labor Code. (Id.
at pp. 917-919.) The Guerrero court concluded that the trial court erred in sustaining a
demurrer to the Labor Code claims because the applicable wage order did not expressly
exempt public employees from its provisions. (Id. at p. 954.) It also concluded that the
trial court ignored the "joint employee doctrine," holding that plaintiff's rendering of
services to the program recipient did not preclude her from being a dual employee of the
program recipient and real parties, the county and the county's IHSS public authority. (Id.
at pp. 917, 955.)
We conclude that appellants should be permitted to amend their section 510 claim
since they have shown how they can potentially amend their complaint to state a valid
claim under the joint employee doctrine. Accordingly, we reverse that part of the order
49
sustaining the demurrer without leave to amend and direct the trial court to grant appellants
leave to amend the complaint. In so doing, we express no view as to the ultimate merits of
appellants' section 510 claim.
DISPOSITION
The order sustaining the demurrer to the Labor Code section 510 claim without
leave to amend is reversed with directions to grant appellants leave to amend their
complaint. The judgment on the FLSA claim is affirmed. In the interests of justice, the
parties are to bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
AARON, J.
WE CONCUR:
BENKE, Acting P. J.
IRION, J.
50