Meza v. Pacific Bell Telephone Co.

Filed 6/17/22
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
DAVE MEZA, B317119
Plaintiff and Appellant, (Kern County
Super. Ct.
v. No. BCV-15-101572)
PACIFIC BELL TELEPHONE
COMPANY,
Defendant and Respondent.
APPEAL from orders of the Superior Court of Kern County,
Stephen D. Schuett, Judge. Dismissed in part, reversed in part
with directions, and affirmed in part.
The Dion-Kindem Law Firm, Peter R. Dion-Kindem; The
Blanchard Law Group and Lonnie C. Blanchard for Plaintiff and
Appellant.
* Under California Rules of Court, rule 8.1110, this opinion
is certified for publication with the exception of sections I, II, and
IV of the DISCUSSION section.
Paul Hastings, Raymond Bertrand, James de Haan; Mayor
Brown, Shaeff │Jaffe and Donald M. Falk for Defendant and
Respondent.
O’Melveny & Myers, Adam Karr and Heather Welles for
Chamber of Commerce of the United States of America and
California Chamber of Commerce as Amici Curiae on behalf of
Defendant and Respondent.
Morgan, Lewis & Bockius, Max C. Fischer and Aimee
Mackay for California Employment Law Council and Employers
Group as Amici Curiae on behalf of Defendant and Respondent
——————————
Dave Meza filed this consolidated class action lawsuit
against his former employer, Pacific Bell Telephone Company
(Pacific Bell). Meza alleged Pacific Bell violated California law by
failing to provide lawful meal and rest periods and failing to
provide lawful itemized wage statements among other Labor
Code violations.1 Meza appeals four trial court orders: (1) an
order denying class certification to five meal and rest period
classes (the class certification order); (2) an order granting
summary adjudication of Meza’s claim relating to wage
statements under section 226, subdivision (a)(9) (the wage
statement order); (3) an order striking Meza’s claim under section
226, subdivision (a)(6) (the order to strike); and (4) an order
granting summary adjudication of Meza’s claim under the Labor
Code Private Attorneys General Act of 2004 (PAGA) (§ 2698 et
seq.) (the PAGA order).
We first consider whether each order is appealable. We
conclude that Meza’s appeal of the order to strike must be
1 All unspecified statutory references are to the Labor Code.
2
dismissed because Meza did not include it in his notice of appeal.
We agree that the other orders are appealable under the death
knell doctrine, which allows immediate appeals of certain
interlocutory orders that resolve all representative claims but
leave individual claims intact.
On the merits, we conclude that the trial court erred in
refusing to certify the meal and rest period classes based on its
conclusion that common issues do not predominate. On remand,
however, the trial court must consider whether Meza is an
adequate class representative, an issue it did not reach in its
previous ruling.
We affirm the wage statement order and the PAGA order.
In the published portion of the opinion, we explain that the trial
court correctly granted summary adjudication of Meza’s wage
statement claim because Pacific Bell’s wage statements do not
violate the Labor Code. The trial court also correctly granted
summary adjudication of the PAGA claim because it was barred
by claim preclusion in light of the settlement and dismissal of a
previous PAGA lawsuit.
BACKGROUND
A. Meza’s allegations
Pacific Bell is a telecommunications corporation providing
voice, video, data, internet and professional services to
businesses, consumers, and government agencies. It has
branches around the world, including in California. Pacific Bell
hired Meza in January 2014 as a premises technician. Meza’s
duties included installing and repairing Pacific Bell’s products
and services including UVerse TV, telephones, and internet,
transporting equipment and products to and from client
locations, conducting pretrip and posttrip inspections of the
3
company van, cleaning and maintaining the company van’s
interior, and keeping the company van stocked. Though not
alleged in the complaint, Pacific Bell employed Meza until
October 2015.
In his operative second amended complaint, Meza alleged
many Labor Code violations. Meza alleged that Pacific Bell failed
to accurately document hours worked, failed to pay overtime
wages, failed to provide legally required meal, failed to furnish
accurate and complete wage statements, and failed to pay costs
for the upkeep of uniforms.
Based on the allegations of Labor Code violations, Meza
asserted a claim for unlawful business practices under Business
and Professions Code section 17200 and a claim under PAGA.
Meza also asserted a claim for wrongful termination. Meza
sought compensatory and punitive damages, restitution, and
penalties.
B. The class certification order
In December 2017, Meza moved to certify six statewide
classes of premises technicians, five of which pertained to Meza’s
meal and rest period claims, and one of which pertained to his
wage statement claim under section 226, subdivision (a)(9). In
support of certification of the meal and rest break claims, Meza
cited the “Premises Technician Guidelines” Pacific Bell adopted
in 2011 and modified in 2013 and 2015. These written guidelines
were provided to premises technicians, who were asked to sign an
agreement stating that they had received the guidelines and
agreed to comply with them. The agreement also provided that
that failure to sign did not excuse compliance with the guidelines.
The 2011 guidelines, for example, provided that
technicians, during meal or rest periods: were not to abandon
4
their vehicles, were required to protect company property, were
not allowed to travel “out of route”, were not allowed to sleep in
their vehicles, were not permitted to congregate with other
company vehicles, and were required at all times to project a
positive image of the company. Meza asserted that these
guidelines substantially limited the activities of premises
technicians during their meal and rest periods in violation of law,
and that common issues predominated because the guidelines
“uniformly apply to all Premise Technicians.”
Pacific Bell opposed certification of the meal and rest
period classes, arguing that its meal and rest period policies were
facially compliant. Pacific Bell further argued that the 2011
guidelines on which Meza relied were not in effect during his
employment, and that Meza testified that he had no recollection
of receiving the operative guidelines. Pacific Bell further
contended that the guidelines in effect during Meza’s
employment did not specifically limit how premise technicians
spend their meal and rest periods. Pacific Bell argued that
individualized issues predominated based on testimony from
premise technicians and their managers indicating that
technicians’ understanding and managers’ enforcement of the
guidelines differed.
Pacific Bell also argued that Meza was an inadequate class
representative because he “repeatedly lied in his deposition” and
because of the circumstances of his discharge. Pacific Bell
asserted that Meza was in a disciplinary meeting but halted the
meeting with a purported medical emergency, and then, while on
disability leave, applied and obtained a job with a competitor.
The trial court denied Meza’s class certification motion for
the meal and rest period classes, stating, “While the policies are
5
undisputed,” “it appears that the actual management practices of
[Pacific Bell]’s supervisors result in a diverse application of the
company’s Premises Technician Guidelines” that renders the
claims “unsuitable for class action treatment.” Because it did not
certify these proposed classes, the trial court did not address the
argument that Meza was an inadequate class representative.
The trial court certified a class to pursue Meza’s wage statement
claim under section 226, subdivision (a)(9).
In 2018, Meza appealed the class certification order. The
Fifth Appellate District dismissed this appeal in July 2020.
(Meza v. Pacific Bell Telephone Co. (July 8, 2020, F077604)
[nonpub. opn.].) It found that the order was not yet appealable
under the death knell doctrine.
C. The wage statement order
In June 2018, Meza and Pacific Bell filed cross-motions for
summary adjudication of the sole class claim that had been
certified: Meza’s wage statement claim under section 226,
subdivision (a)(9). This claim, described in more detail in our
review of the trial court’s order, involved Meza’s allegation that
certain entries in Pacific Bell’s wage statements violated
statutory requirements. The parties stipulated to the applicable
facts. The trial court granted summary adjudication in favor of
Pacific Bell, ruling that the wage statements complied with the
law. With this ruling, no further class claims remained in the
case.
D. The order to strike
In April 2019, Meza filed his third amended complaint.
Meza added a claim under section 226, subdivision (a)(6) alleging
that Pacific Bell’s wage statements failed to accurately show the
inclusive dates of the pay period.
6
Pacific Bell filed a motion to strike these portions of the
third amended complaint for failure to state a claim because
Pacific Bell’s pay statements listed the first and last day of the
regular pay period. The court granted the motion to strike
without leave to amend.
E. The PAGA order
In February 2020, Pacific Bell moved for summary
adjudication of Meza’s PAGA claim, arguing that a final,
approved settlement in a prior action, Hudson v. Pacific Bell
Telephone Co. (Super. Ct. Sacramento County, 2016, No. 34-2016-
00202203) (Hudson), barred Meza from pursuing his claim under
the doctrines of res judicata and settlement and release. The
Hudson action had alleged failure to pay all minimum and
overtime wages (§§ 510, 1194, 1197); failure to provide compliant
meal periods (§§ 226.7, 512); failure to provide rest periods
(§ 226.7); failure to provide accurate wage statements (§ 226);
failure to pay wages owed at termination (§§ 201, 202, 203);
unfair business practices (Bus. & Prof. Code, § 17200 et seq.); and
derivative penalties under PAGA (§ 2698 et seq.). The court in
Hudson granted final approval of a settlement and entered
judgment.
The Hudson settlement contained a lengthy definition of
“RELEASED CLAIMS.” The definition included a release of:
“any and all known and unknown wage and hour related claims
that arise out of the facts asserted in the operative complaint in
the Action,” which included but was not limited to the asserted
claims and claims under sections 201, 202, 203, 226, 226.7, 510,
512, 558, 1194 and 2698 et seq., among other code provisions and
orders, “based on the facts in the complaint.” The period of the
7
released claims ran from October 24, 2012, until the date of
preliminary approval.
The release explicitly exempted claims for damages under
section 226, subdivision (e) brought by Meza in the current case
concerning whether Pacific Bell violated section 226 by failing to
list on its wage statements “hours worked” and “hourly rate” for
certain overtime payments.
On July 24, 2020, the trial court granted Pacific Bell’s
summary adjudication motion. The trial court agreed that
Meza’s PAGA claims were barred under the theory of res
judicata.
On July 28, 2020, Meza appealed to the Fifth Appellate
District. On December 20, 2021, our Supreme Court transferred
this matter to the Second Appellate District.
DISCUSSION
I. Except for the order to strike, the trial court orders
are appealable
“The right to appeal in California is generally governed by
the ‘one final judgment’ rule, under which most interlocutory
orders are not appealable.” (In re Baycol Cases I & II (2011)
51 Cal.4th 751, 754 (Baycol).) All four orders that Meza
challenges are interlocutory orders. Because the existence of an
appealable order is a jurisdictional prerequisite to an appeal
(Jennings v. Marralle (1994) 8 Cal.4th 121, 126), we first consider
whether the orders are appealable.
A. The class certification and PAGA orders are
appealable under the death knell doctrine
The death knell doctrine is an exception to the one final
judgment rule. (Baycol, supra, 51 Cal.4th at p. 760.) Under the
death knell doctrine, an order “that entirely terminates class
8
claims is appealable.” (Id. at pp. 757–758.) The death knell
doctrine allows for an immediate appeal from a denial of
representative claims because “ ‘the action has in fact and law
come to an end, as far as the members of the alleged class are
concerned.’ ” (Id. at p. 760.) Earlier in this case, in dismissing
Meza’s first appeal, the Fifth District concluded that the death
knell doctrine permits an interlocutory appeal only after any
representative PAGA claims have also been dismissed. (Meza v.
Pacific Bell Telephone Co., supra, F077604.)2
The parties agree that the class certification order and
PAGA order are appealable under the death knell doctrine. We
concur. The trial court refused to certify any class claim other
than one relating to Pacific Bell’s wage statements. Once the
trial court granted summary adjudication of that claim in the
wage statement order, no class claims remained. The PAGA
order similarly falls within the express terms of the death knell
doctrine. The class certification and PAGA orders are therefore
appealable.
2 The Fifth Appellate District in making this ruling relied
on Young v. RemX, Inc. (2016) 2 Cal.App.5th 630, 635 and Munoz
v. Chipotle Mexican Grill, Inc. (2015) 238 Cal.App.4th 291, 310.
The holding of these cases—that pending PAGA claims prevent
the appealability of class claims under the death knell doctrine—
may be subject to debate. We do not, however, need to reach or
decide the issue. Because this principle of law was “necessary to
the decision” of the Fifth Appellate District in this case
dismissing Meza’s appeal, it “must be adhered to” under the law
of the case doctrine, regardless of whether we agree with that
conclusion. (Kowis v. Howard (1992) 3 Cal.4th 888, 892–893.)
For this reason, any attempt by Meza to appeal under the death
knell doctrine before the PAGA order issued would have been
futile.
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B. The wage statement order is appealable under
the death knell doctrine
The appealability of the wage statement order presents a
closer question. After considering the parties’ supplemental
briefing, we conclude that this order, too, is appealable.
Both parties have flipped their positions on the
appealability of this order. In the initial briefing, Meza argued
the order was appealable and Pacific Bell appeared to contend it
was not. After we requested further briefing, Meza stated that
the appeal of this order could be dismissed, but Pacific Bell
argued that it was appealable and provided relevant authority.
Despite the oddity of Pacific Bell’s change of heart, its argument
is persuasive.
The complexity of the question relates to the death knell
doctrine’s insistence that the orders appealed from dispose of all
class claims but leave individual claims intact. The “doctrine
renders appealable only those orders that effectively terminate
class claims but permit individual claims to continue.” (Baycol,
supra, 51 Cal.4th at p. 754.) Baycol, for example, in the context
of deciding whether an appeal was timely, held that an appeal
from a demurrer dismissing both class and individual claims
together would have been premature as such an order was not
appealable. (Id. at pp. 760–761.) The appeal from the
subsequent judgment was therefore timely. (Id. at pp. 761–762.)
If the trial court had included both class and individual
claims in the wage statement order, which decides the claim on
the merits, it would present an even more difficult question than
that presented in Baycol. On the one hand, an order applying
equally to both types of claims may not be appealable under
Baycol, supra, 51 Cal.4th at page 760. On the other hand, the
10
summary judgment order was unusual in that it disposed of the
last class claim still standing. Arguably, Baycol’s insistence on a
divergence between class and individual claims is satisfied by the
many individual claims still to be decided with respect to the
other claims—i.e., those as to which class certification was
denied. There are no cases of which we are aware or cited by the
parties that discuss application of the death knell doctrine in
these circumstances.
We need not reach this thorny issue, however, because as
urged by Pacific Bell we follow the approach of Arce v. Kaiser
Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, which
contains facts analogous to those presented here. There, the trial
court sustained a demurer to a claim that was brought
“ ‘individually and on behalf [of a class] of other similarly
situated people.’ ” (Id. at p. 485, fn. 9.) The appellate court
entertained the appeal under the death knell doctrine on the
basis that it was unclear whether defendant intended to demur to
the individual claim and whether the trial court sustained a
demurrer to the individual claim. (Ibid.) The appellate court
noted that it was limiting its review to the dismissal of the class
claims and trusted that the trial court would faithfully apply its
ruling to the individual claim if necessary. (Ibid.)
The same situation is presented here. Both Pacific Bell’s
motion and the trial court’s order granting summary adjudication
of the claim under section 226, subdivision (a)(9) refer only to the
certified class claim. Because, on this record, it was unclear that
the trial court intended to summarily adjudicate anything other
than the class claim, we exercise jurisdiction under the death
knell doctrine just as the court did in Arce v. Kaiser Foundation
Health Plan, Inc., supra, 181 Cal.App.4th 471. In addition to
11
following the dictates of the death knell doctrine, this approach
makes good sense here, where the wage statement order, by
deciding the last class claim, made the class certification order
appealable, where the parties have fully briefed the wage
statement issue, and where the issues are of material significance
to all parties.
C. The order to strike is not appealable
In the supplemental briefing, Meza takes the position that
we may dismiss the appeal from the order to strike while Pacific
Bell argues the order is appealable. On this order, we agree with
Meza. Putting aside the death knell doctrine issues, this order
poses a different problem: Meza failed to mention it in his notice
of appeal.
“[I]f no appeal is taken from . . . an order, the appellate
court has no jurisdiction to review it.” (Norman I. Krug Real
Estate Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35, 46;
accord, Sole Energy Co. v. Petrominerals Corp. (2005)
128 Cal.App.4th 212, 240.) While a notice of appeal must be
liberally construed, this policy “ ‘does not apply if the notice is so
specific it cannot be read as reaching a judgment or order not
mentioned at all.’ ” (In re J.F. (2019) 39 Cal.App.5th 70, 78.)
Where a notice of appeal “explicitly describe[s]” an order (or, as
here, multiple orders), it “would be beyond liberal construction to
view that notice of appeal as relating to a further and different
order.” (Russell v. Foglio (2008) 160 Cal.App.4th 653, 661.)
We cannot reasonably construe Meza’s notice of appeal to
encompass the order to strike. Meza’s notice of appeal states that
he appeals “[o]rders denying Motion for Class Certification,
dismissing certified 226(a)(9) claim, and dismissing PAGA claim
(death knell doctrine).” The notice does not mention the order to
12
strike Meza’s section 226, subdivision (a)(6) claim. Meza’s clear
delineation of the limited scope of his appeal precludes a finding
of an intent by Meza to appeal from the order to strike.
Pacific Bell also argues that notwithstanding the lack of a
notice of appeal for this order, it may still be reviewable under
Code of Civil Procedure section 906 which, when it applies,
permits the review of nonappealable intermediate orders. Even
assuming Code of Civil Procedure section 906 applied in death
knell doctrine cases, it would not apply here.3 To qualify under
that code section, the order must be a “necessary predicate” to an
appealable order. (Erikson v. Weiner (1996) 48 Cal.App.4th 1663,
1671, disapproved of on another ground in Kabran v. Sharp
Memorial Hospital (2017) 2 Cal.5th 330, 347; accord, Cahill v.
San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 948.)
The order to strike is not a necessary predicate to either the class
certification or PAGA orders. (See Lopez v. Brown (2013) 217
Cal.App.4th 1114, 1136–1137 [Code Civ. Proc., § 906 did not
permit review where earlier order “deal[t] with unrelated
issues”].) For these reasons, we dismiss Meza’s appeal of the
order to strike.
II. The trial court erred in denying certification based
on inconsistent applications of Pacific Bell policies
Meza contends that the district court abused its discretion
in denying class certification. Specifically, Meza contends that
the legality of the Pacific Bell company guidelines, communicated
3 While we do not reach the issue, courts have expressed
doubt that the language of Civil Procedure Code section 906
encompasses death knell doctrine appeals. (Nixon v. AmeriHome
Mortgage Co., LLC (2021) 67 Cal.App.5th 934, 944.)
13
to Pacific Bell premises technicians in writing, is a common issue
that should be resolved as to all class members. We agree.
A. Standard of review and the law of class
certification
Code of Civil Procedure section 382 authorizes class actions
“when the question is one of a common or general interest, of
many persons, or when the parties are numerous, and it is
impracticable to bring them all before the court.” A trial court is
generally afforded great latitude in granting or denying class
certification, and we normally review a certification ruling for an
abuse of discretion. (Sav-On Drug Stores, Inc. v. Superior Court
(2004) 34 Cal.4th 319, 326–327.) A trial court ruling supported
by substantial evidence generally will not be disturbed unless (1)
improper criteria were used or (2) erroneous legal assumptions
were made. (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435–
436.) A trial court’s decision that rests on an error of law is an
abuse of discretion. (In re Tobacco II Cases (2009) 46 Cal.4th 298,
311.)
The parties disputed in the trial court whether common
interest of law and fact predominated—one of the factors for class
certification. (Brinker Restaurant Corp. v. Superior Court (2012)
53 Cal.4th 1004, 1021 (Brinker).) This question “hinges on
‘whether the theory of recovery advanced by the proponents of
certification is, as an analytical matter, likely to prove amenable
to class treatment.’ [Citation.] A court must examine the
allegations of the complaint and supporting declarations
[citation] and consider whether the legal and factual issues they
present are such that their resolution in a single class proceeding
would be both desirable and feasible. ‘As a general rule if the
defendant’s liability can be determined by facts common to all
14
members of the class, a class will be certified even if the members
must individually prove their damages.’ ” (Id. at pp. 1021–1022,
fn. omitted.)
B. The trial court erred in ruling that
individualized issues predominated
The trial court order denying class certification dealt with
an often-litigated class certification issue: whether supervisors’
diverse practices with respect to uniform written policies makes
class certification inappropriate. The trial court held that
individualized issues predominated because the managers’
declarations indicated that “the actual management practices of
[Pacific Bell]’s supervisors result[ed] in a diverse application of
the company’s Premises Technician Guidelines.” On the record
before us, based on applicable law, we conclude that this ruling
constituted an abuse of discretion.
Meza’s claims related to meal and rest breaks for premises
technicians. “State law obligates employers to afford their
nonexempt employees meal periods and rest periods during the
workday. [Citations.] Labor Code section 226.7, subdivision (a)
prohibits an employer from requiring an employee ‘to work
during any meal or rest period mandated by an applicable order
of the Industrial Welfare Commission.’ ” (Brinker, supra,
53 Cal.4th at p. 1018, fns. omitted.) Industrial Welfare
Commission wage order No. 4-2001 likewise prescribe meal and
rest periods. (Cal. Code Regs., tit. 8, § 11040, subds. 11(A),
12(A).) “Employers who violate these requirements must pay
premium wages.” (Brinker, at p. 1018; Cal. Code Regs., tit 8,
§ 11040, subds. 11(B), 12(B).)
Meza alleged that Pacific Bell’s policies placed too many
restrictions on employees’ rest and meal breaks. This issue
15
involves analyzing “ ‘whether the employees’ off-duty time is so
substantially restricted that they are unable to engage in private
pursuits.’ ” (Frlekin v. Apple Inc. (2020) 8 Cal.5th 1038, 1052.)
Meza emphasizes that he bases his claim on a theory that
Pacific Bell’s policies were unlawful because they retained too
much control over the premises technicians during their
mealtimes. It is undisputed that Pacific Bell maintained written
policies. The guidelines were provided to premises technicians,
who were asked to sign an agreement stating that they had
received the guidelines, read them, and agreed to comply with
them. The record contains two such agreements signed by Meza
himself. A premises technician’s failure to sign the agreement
did not excuse him or her from having to comply with the
guidelines.
Under these circumstances, do individualized inquiries
predominate because Pacific Bell witnesses testified that they
apply the various written guidelines in diverse ways in practice?
We follow prior case law holding that individualized inquiries do
not predominate in these circumstances.
1. Brinker discussed uniform policies as a
basis for class certification
Meza relies heavily on Brinker, supra, 53 Cal.4th 1004, a
case involving, among other things, class certification with
respect to a company’s rest break policy. Brinker is an important
class certification case that provides basic rules for our analysis
but does not answer the specific question at issue here.
Brinker, supra, 53 Cal.4th at page 1034, held
foundationally that trial courts should generally resolve class
certification issues before resolving the legal merits of an action.
More relevant for purposes of this appeal, Brinker dealt with the
16
issue of uniform corporate policies as a basis for class
certification. (Id. at pp. 1032–1034.) In Brinker, the trial court
had certified a class based on the company’s uniform rest break
policies. (Id. at pp 1032–1033.) The Court of Appeal reversed,
reasoning that while the policies about rest breaks were uniform,
individual employees could choose to “waive” their rest breaks
and continue working; thus, according to the Court of Appeal, any
showing that plaintiffs missed breaks or took shortened breaks
would not necessarily show violations of the Labor Code without
further individualized proof. (Id. at p. 1033.)
The Supreme Court reversed the Court of Appeal,
concluding that class certification was appropriate. The plaintiff
had “presented evidence of, and indeed Brinker conceded at the
class certification hearing the existence of, a common, uniform
rest break policy.” (Brinker, supra, 53 Cal.4th at p. 1033.) “The
rest break policy was established at Brinker’s corporate
headquarters; it is equally applicable to all Brinker employees.”
(Ibid.) It concluded that “[n]o issue of waiver ever arises for a
rest break that was required by law but never authorized; if a
break is not authorized, an employee has no opportunity to
decline to take it.” (Ibid.) Because plaintiff “pleaded and
presented substantial evidence of a uniform rest break policy
authorizing breaks only for each full four hours worked, the trial
court’s certification of a rest break subclass should not have been
disturbed.” (Ibid.)
While relevant, Brinker does not answer the question
presented here. In Brinker, there was no dispute that the
company had a uniform policy and no assertion that the company
applied it in diverse ways. The only issue was whether the
employees’ individual decisions about whether to take breaks
17
rendered the case inappropriate for class certification. (Brinker,
supra, 53 Cal.4th at pp. 1033–1034.) The Supreme Court held
that class certification was appropriate under these
circumstances.
2. Applying post-Brinker case law, we
conclude that the trial court erred in
denying class certification
The progeny of Brinker has dealt more directly with the
question of class certification based on uniform policies that are
allegedly applied by corporate managers in different ways. This
has proved to be a tricky issue for the courts. Since Brinker,
numerous appellate courts have reversed a trial court’s refusal to
certify a class, where the trial court relied on a company’s diverse
conduct in the face of uniform policies or lack of such policies.
(See, e.g., Lubin v. The Wackenhut Corp. (2016) 5 Cal.App.5th
926; Alberts v. Aurora Behavioral Health Care (2015) 241
Cal.App.4th 388; Jones v. Farmers Ins. Exchange (2013) 221
Cal.App.4th 986 (Jones); Benton v. Telecom Network Specialist,
Inc. (2013) 220 Cal.App.4th 701; Bradley v. Networkers Internat.,
LLC (2012) 211 Cal.App.4th 1129.)
In general, cases following Brinker “have concluded . . . that
when a court is considering the issue of class certification and is
assessing whether common issues predominate over individual
issues, the court must ‘focus on the policy itself’ and address
whether the plaintiff’s theory as to the illegality of the policy can
be resolved on a classwide basis.” (Hall v. Rite Aid Corp. (2014)
226 Cal.App.4th 278, 289.) “[W]here the theory of liability
asserts the employer’s uniform policy violates California’s labor
laws, factual distinctions concerning whether or how employees
18
were or were not adversely impacted by the allegedly illegal
policy do not preclude certification.” (Ibid.)
Jones, supra, 221 Cal.App.4th 986—a post-Brinker decision
from this court—reversed a trial court order refusing to certify a
class on facts analogous to those at issue here. In that case,
plaintiffs claimed that the defendant, Farmers, “applied a
uniform policy to all putative class members denying them
compensation for ‘computer sync time’ work performed at home
before the beginning of their scheduled shifts.” (Jones, at p. 996.)
In support of their class certification motion, plaintiffs relied
upon a personalized memorandum issued to each employee
providing they might be required to perform certain enumerated
work tasks at home for which they would not be compensated (id.
at p. 990), as well as the declarations of employees stating that
they were not compensated for such tasks at home (id. at p. 991).
In Jones, supra, 221 Cal.App.4th at page 996, the
defendant argued in opposition that it had no uniform policy
denying compensation for preshift work and submitted
declarations from employees “stating generally that they were
not required to perform unpaid preshift work, that they
requested and received approval to work overtime if necessary,
and that the time required to start up their computers in the
morning . . . was minimal.” The trial court denied class
certification, finding that “the parties disputed what tasks were
required to be performed before the beginning of a shift and that
Plaintiffs had failed to demonstrate the existence of a uniform
policy denying compensation for preshift work.” (Id. at p. 996.)
The Jones court concluded that “the trial court applied
improper criteria by focusing on individual issues concerning the
right to recover damages rather than evaluating whether the
19
theory of recovery is amenable to class treatment” and “that
substantial evidence does not support the court’s finding that
common issues do not predominate.” (Jones, supra, 221
Cal.App.4th at p. 997.) The Jones court observed that “Plaintiffs’
theory of recovery based on the existence of a uniform policy
denying compensation for preshift work presents predominantly
common issues of fact and law,” and that defendant’s “liability
depends on the existence of such a uniform policy and its overall
impact on” the putative class members. (Ibid.) Jones noted that
defendant’s evidence might necessitate individual damage
determinations, but these “do not preclude class certification.”
(Id. at p. 996.)
We conclude here, as the Jones court did, that the trial
court did not apply the proper legal framework when it denied
class certification. Meza’s theory of liability is that the written
guidelines for premises technicians were for the benefit of Pacific
Bell and exerted substantial control over the premises
technicians during their meal and rest periods in violation of the
law. Although the trial court acknowledged that “the policies are
undisputed,” it concluded that the disparate manner in which
employees experienced the policy through different managers
rendered the claims unsuitable for class treatment. However,
“the employer’s liability arises by adopting a uniform policy that
violates the wage and hour laws.” (Faulkinbury v. Boyd &
Associates, Inc. (2013) 216 Cal.App.4th 220, 235.) The “fact that
individual inquiry might be necessary to determine whether
individual employees were able to take breaks despite the
defendant’s allegedly unlawful policy . . . is not a proper basis for
denying certification.” (Benton v. Telecom Network Specialists,
Inc., supra, 220 Cal.App.4th at p. 726.)
20
Thus, while we express no view on the merits of Meza’s
allegations, we find that the question to be resolved here—
whether the undisputed guidelines violate wage and hour law—is
not an individualized one.
3. Pacific Bell’s authority is inapposite
Pacific Bell relies primarily upon a single case, Koval v.
Pacific Bell Telephone Co. (2014) 232 Cal.App.4th 1050 (Koval),
in which an appellate court affirmed a trial court’s denial of class
certification where the plaintiff challenged written corporate
guidelines. Koval deserves close attention because, like the
current case, it involves the break policies of the respondent,
Pacific Bell, for its premises technicians. Though it involves a
different set of policies (13 policies in effect at various points from
2006 through approximately 2008), it concerns the same party
and area of law as those in the current case.
Despite these startling factual similarities, the record in
Koval was different in a central way that renders it
distinguishable from the facts here. As explained below, Koval
relied heavily on evidence that although the policies were
written, they were conveyed to the employees orally, leading as a
practical matter to a multiplicity of different policies. By
contrast, here—as in Jones—the uniform written policies were
provided in writing to the Pacific Bell employees, even though
they were allegedly applied in an inconsistent manner.
In Koval, supra, 232 Cal.App.4th 1050, the plaintiff (like
the plaintiff here) “alleged Pacific Bell violated California law by
failing to relinquish control over their activities during meal and
rest break periods” (id. at p. 1053) and relied on “Pacific Bell’s
written job performance guidelines, which they claimed contain
several explicit restrictions on how employees could spend their
21
meal and rest periods” (id. at p. 1055). The trial court found that
“the evidence revealed the policies had not been consistently
applied” and denied class certification. (Id. at p. 1057.)
The Koval court affirmed, stating that, while “[i]t is true
that the Brinker court observed ‘a uniform policy consistently
applied’ can support certification. [Citation.] . . . it did not say
that a case must proceed as a class action when there is such a
facially uniform policy.” (Koval, supra, 232 Cal.App.4th at
p. 1059.) Although “Pacific Bell maintained written policies that
are uniform, in the sense that they are in writing, the evidence
supports the trial court’s conclusion that supervisors did not
consistently articulate these policies to class members” but
instead “conveyed the policies to class members orally, a practice
which the evidence also shows resulted in diverse practices and
differing interpretations as to what the rules required.” (Id. at
p. 1062, italics added.) The Koval court noted that the
managerial practice of conveying the policies in an oral and
inconsistent manner contributed to the creation of “a shifting
kaleidoscope of liability determinations that render this case
unsuitable for class action treatment.” (Ibid.)
For all its similarities, Koval is distinguishable because it
hinged on the oral and inconsistent manner the policies were
conveyed to the employees. The record in Koval supported that
the guidelines were disseminated orally, and there is no
indication that there was a practice of providing class members
with written versions of the 13 different documents containing
the complained-of guidelines, or of requesting that they sign an
agreement stating that they had read and would comply with
them. (Koval, supra, 232 Cal.App.4th at pp. 1057, 1062.) Thus,
while the plaintiffs’ theory was based on a “facially uniform
22
policy” (id. at p. 1059), the court concluded that the policies were
in fact “far from uniform” because of the manner in which they
were transmitted (id. at p. 1062).
Indeed, the Koval court analogized the case before it to
Morgan v. Wet Seal, Inc. (2012) 210 Cal.App.4th 1341, in which
no written policy existed requiring employees to wear company
clothing, and plaintiffs instead relied on what managers told
employees in person and through e-mail and other forms of
communication. (Koval, supra, 232 Cal.App.4th at p. 1062; see
Morgan, at pp. 1344–1353.) In both Koval and Morgan, the
absence of a clear company policy communicated to employees
supported the appellate court’s conclusion that “there was no
common method to prove classwide liability because each
individual plaintiff would have his or her own story.” (Koval, at
pp. 1055–1056; see Morgan, at pp. 1350–1353.) The Koval court
also distinguished the case before it from Ghazaryan v. Diva
Limousine, Ltd. (2008) 169 Cal.App.4th 1524 in which the
policies at issue were distributed to employees in the form of a
handbook. (Koval, at pp. 1055–1056.)
Here, by contrast, Meza’s theory of liability is based upon
written guidelines that were provided to premises technicians,
who were requested to sign agreements stating that they would
comply with those guidelines. The record shows this through,
among other evidence, the deposition testimony of the person
most knowledgeable designated by Pacific Bell. Because the
written guidelines at issue here were provided in writing to
premises technicians, we conclude that Koval, supra,
232 Cal.App.4th 1050 is inapposite. This case is more like Jones,
supra, 221 Cal.App.4th at page 1000, which reversed the trial
court’s refusal to certify a class as to written policies distributed
23
to the employees, even if they were inconsistently applied in
practice.4
C. The trial court must consider whether Meza may
adequately represent the class
Pacific Bell contends that, if we reverse, we should remand
to allow the trial court to determine whether Meza is an adequate
class representative, an issue raised but not decided below. We
agree.
Pacific Bell argued that Meza is an inadequate
representative because he gave inconsistent deposition testimony
and engaged in purportedly dishonest conduct while employed by
Pacific Bell. “A class action is a representative action in which
the class representatives assume a fiduciary responsibility to
prosecute the action on behalf of the absent parties.” (Earley v.
Superior Court (2000) 79 Cal.App.4th 1420, 1434.) Thus,
“[c]redibility problems can be an appropriate ground to reject the
adequacy of a class representative.” (Payton v. CSI Electrical
Contractors, Inc. (2018) 27 Cal.App.5th 832, 846.) On remand,
the court should consider whether Meza is an adequate
representative.
III. The trial court correctly granted summary
adjudication as to Meza’s wage statement claim
Section 226, subdivision (a)(9) provides that an employee
wage statement must include “all applicable hourly rates in effect
during the pay period and the corresponding number of hours
worked at each hourly rate by the employee.” Meza contends
4 There are differences between the 2011 guidelines and the
2013 and 2015 versions. On remand, the trial court may wish to
consider whether differences among the guidelines warrant
subclassing. (See Koval, supra, 232 Cal.App.4th at p. 1057.)
24
Pacific Bell violated this statute by failing to include the “rate”
and “hours” attributable to Pacific Bell’s overtime true-up
payments. Pacific Bell, supported by amici curiae, argues that its
wage statement complies with the statute and that Meza’s
reading of the statute would expose employers to serious
compliance burdens, disincentivize bonus pay, and result in
confusing wage statements. We find no error in the trial court’s
order granting summary adjudication of Meza’s claim on the
basis that Pacific Bell’s wage statements comply with the
statutory requirements.
A. Standard of review and principles of statutory
construction
“We review the ruling on a motion for summary judgment
de novo, applying the same standard as the trial court.”
(Manibog v. MediaOne of Los Angeles, Inc. (2000) 81 Cal.App.4th
1366, 1369.) “We exercise our independent judgment as to the
legal effect of the undisputed facts [citation] and must affirm on
any ground supported by the record.” (Jimenez v. County of Los
Angeles (2005) 130 Cal.App.4th 133, 140.)
The propriety of the trial court’s order involves the proper
construction of section 226, subdivision (a)(9). We review
questions of statutory interpretation de novo. (County of Los
Angeles v. City of Los Angeles (2013) 214 Cal.App.4th 643, 653.)
“[O]ur primary task is determining legislative intent. [Citation.]
In doing so, we ‘look first to the words of the statute, “because
they generally provide the most reliable indicator of legislative
intent.” ’ [Citations.] Where a statutory term ‘is not defined, it
can be assumed that the Legislature was referring to the
conventional definition of that term.’ [Citations.] We thus give
the words in a statute ‘their plain and commonsense meaning.’
25
[Citation.] ‘Furthermore, a particular clause in a statute must be
read in harmony with other clauses and in the context of the
statutory framework as a whole.’ ” (Heritage Residential Care,
Inc. v. Division of Labor Standards Enforcement (2011)
192 Cal.App.4th 75, 81–82.)
B. Meza’s claim challenged Pacific Bell’s failure to
include hours and rates for overtime true-up
Meza’s claim under section 226, subdivision (a)(9) involved
how Pacific Bell represented a lump sum overtime payment on its
wage statements. For regular pay and regular overtime, the
wage statements, as required, listed the “rate” and “hours” for
that pay period. There is no dispute that these entries complied
with statutory requirements.
Pacific Bell also, however, included a lump sum on certain
wage statement titled “OVERTIME TRUE-UP PMT” (the
overtime true-up). For the overtime true-up, Pacific Bell left the
“rate” and “hour” columns blank. This is the entry that Meza
challenges.
The overtime true-up—additional overtime wages owed
based on performance bonuses earned in earlier periods—was
calculated using a complex formula involving bonus amounts and
hours from prior pay periods. Pursuant to Pacific Bell’s incentive
program, each month employees earned “points” that could be
exchanged for merchandise based on the achievement of specified
metrics. Pacific Bell assigned the points a cash value for tax
purposes (which it called a non-cash award) and calculated the
additional income taxes owed on the points (which it called a
“Non-Cash Awd Tax Gross Up”). Pacific Bell generally listed
these monetary amounts on the first wage statement of the
month after the employee earned them.
26
Pacific Bell was required by law to include the value of the
points, which was a form of bonus, in the regular rate pay for
purposes of calculating the employee’s overtime pay. Because
employees earned the bonus over the course of an entire month
and the bonus amount was not known until the close of that
month, there was no way to determine the overtime owed in
relation to that bonus on a pay-period by pay-period basis.
Instead, Pacific Bell calculated the additional overtime owed—
the overtime true-up—after the close of the month and generally
reflected it in the next month’s first wage statement.
By way of example, Pacific Bell paid Meza a lump sum
overtime true-up in the first paycheck of June 2015 (a paycheck
that covered the first two weeks in June). That overtime true-up
was based on the Meza’s specific bonus earned and hours worked
throughout the entirety of the month of May. As stipulated to by
the parties, the formula to calculate the overtime true-up paid in
a lump sum at the beginning of June was: the total monetary
value of the points the employee earned throughout May,5
divided by the total hours the employee worked throughout May,
with the resulting value then multiplied by one-half, and the
resulting value then multiplied by the overtime hours the
employee worked throughout May.
In the example to which the parties stipulated, the first
June wage statement represents the overtime true-up derived
from this formula as “OVERTIME TRUE-UP PMT” in the
5 The value of the points from May was calculated by
adding the “Non-Cash Award” and “Non-Cash Awd Tax Gross
Up.”
27
amount of $32.76. It is the lack of “hours” and “rates” next to this
figure that forms the basis for Meza’s claim.
The trial court ruled that Pacific Bell’s wage statements
complied with statutory requirements. The trial court found that
“[t]here were no applicable hourly rates in effect during the pay
period that correspond to the incentive program pay” and that
the “overtime hours were worked in previous pay period for which
the employees had already received their standard overtime pay.”
The trial court concluded that an “employer must only identify on
the wage statement the hourly rate in effect during the pay
period for which the employee was currently being paid and the
corresponding hours worked” under section 226, subdivision
(a)(9), and thus granted Pacific Bell’s motion.
C. Pacific Bell’s wage statements do not violate
section 226, subdivision (a)(9)
While Pacific Bell’s calculation of overtime true-up
payments is quite complicated, the statutory issue is
straightforward. Does the statutory requirement to list on the
wage statement “hourly rates in effect during the pay period”
(§ 226, subd. (a)(9)), italics added) and the “corresponding
number of hours” worked at such rates (ibid.) encompass a
requirement that Pacific Bell list the rates and hours from prior
pay periods underlying an overtime true-up calculation? We
agree with the trial court that the statute contains no such
requirement.
Section 226, subdivision (a)(9) is explicit that it requires a
list of hourly rates “during the pay period.” In the example
discussed above, the relevant “pay period” consists of the first two
weeks in June, and none of the variables involved in the overtime
true-up calculation, such as the hours worked, related to the pay
28
period. The statute requires the first June wage statement to
reflect a list of hours and rates from the first two weeks in June—
not from earlier periods. This reading of the statute is reinforced
by our Supreme Court’s use of language indicating that the
obligation to provide information in connection with section 226
is limited to the pay period in which a statement was issued.
(Ward v. United Airlines, Inc. (2020) 9 Cal.5th 732, 753 [§ 226
“appears to contemplate that the information supplied will be
comprehensive . . . for the given pay period”]; Oman v. Delta Air
Lines, Inc. (2020) 9 Cal.5th 762, 774 [§ 226 requires “all relevant
information concerning the employee’s pay during that period”].)
We cannot read into the statute obligations that are not
present. “When a statute omits a particular category from a
more generalized list, a court can reasonably infer a specific
legislative intent not to include that category within the statute’s
mandate.” (Soto v. Motel 6 Operating, L.P. (2016) 4 Cal.App.5th
385, 391.) We cannot read into the statute a requirement that an
employer include hours and rates from prior pay periods when
the legislature omitted such a requirement. Adding
requirements for wage statements is especially unwarranted
here, where payment is not a simple matter of multiplying a pre-
determined rate by overtime hours, as the statute appears to
contemplate, but an after-the-fact calculation based in significant
part on the amount of bonus the employee happened to earn the
prior month.
The parties and amici argue about whether listing
information from prior pay periods would be “a simple payroll
programming task,” as Meza claims, or would entail “significant
practical problems” for employers, as the amici curiae and Pacific
Bell urge. These issues are better addressed to the Legislature.
29
Based on the text of the statute, we hold that Pacific Bell did not
violate section 226, subdivision (a)(9).
The Ninth Circuit recently reached this same conclusion in
interpreting this California statute. In Magadia v. Wal-Mart
Associates, Inc. (9th Cir. 2021) 999 F.3d 668, the Ninth Circuit
also concluded that section 226, subdivision (a)(9) did not require
the reporting of rates and hours from prior periods in connection
with overtime adjustment payments. That case, too, involved
lump sum overtime payments associated with incentive bonuses
from prior periods. (Id. at p. 672.) This payment was calculated
using a formula that included the number of hours worked during
those earlier periods. (Ibid.) The Ninth Circuit explained that an
overtime adjustment “is a non-discretionary, after-the-fact
adjustment to compensation based on the overtime hours worked
and the average of overtime rates,” and therefore found that the
calculation did not reflect “an ‘hourly rate in effect during the pay
period.’ ” (Id. at p. 681.) This statutory term, the Ninth Circuit
reasoned, does not apply to an artificial, after-the-fact rate
calculated based on overtime hours and rates from preceding pay
periods that did not even exist during the time of the pay period
covered by the wage statement. (Ibid.)6 Though we are not
bound by the Ninth Circuit’s views on this issue (Barrett v.
Rosenthal (2006) 40 Cal.4th 33, 58), we agree with its analysis.
6 The Ninth Circuit cited two unpublished California
appellate decisions in its analysis of this issue. (See Magadia v.
Wal-Mart Associates, Inc., supra, 999 F.3d at p. 681.) Although
we are not permitted to rely on such cases (Airline Pilots Assn.
Internat. v. United Airlines, Inc. (2014) 223 Cal.App.4th 706, 724,
fn. 7), a federal court may do so (Employers Ins. of Wausau v.
Granite State Ins. Co. (9th Cir. 2003) 330 F.3d 1214, 1220, fn. 8).
30
Section 226, subdivision (a)(9) does not require Pacific Bell
to list hours and rates next to its calculation of an overtime true-
up. The trial court correctly granted summary adjudication to
Pacific Bell on this claim.
IV. The trial court correctly granted summary
adjudication of Meza’s PAGA claim
Meza contends that the trial court improperly granted
Pacific Bell’s motion for summary adjudication of the PAGA
claim. Meza argues that claim preclusion does not apply because
the Hudson complaint did not allege the same predicate facts and
violations of law as Meza alleged in this action. The parties do
not dispute the essential facts, including the Hudson judgment
and written release. As previously noted, we review the order on
summary judgment de novo. (Manibog v. MediaOne of Los
Angeles, Inc., supra, 81 Cal.App.4th at p. 1369.)
A. Claim preclusion bars Meza’s PAGA action
Claim preclusion, which has also been referred to as res
judicata, “describes the preclusive effect of a final judgment on
the merits.” (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th
888, 896.) “Claim preclusion arises if a second suit involves
(1) the same cause of action (2) between the same parties (3) after
a final judgment on the merits in the first suit.” (DKN Holdings
LLC v. Faerber (2015) 61 Cal.4th 813, 824.) A judgment entered
by stipulation is as binding as a judgment after trial. (Consumer
Advocacy Group, Inc. v. ExxonMobil Corp. (2008) 168 Cal.App.4th
675, 694.)
Meza does not dispute the established rule that a judgment
in a prior PAGA action operates as a claim preclusion bar to later
lawsuits against the same employer. (Arias v. Superior Court
(2009) 46 Cal.4th 969, 986.) Meza contends, however, that his
31
claims did not involve the same cause of action as Hudson, as
claim preclusion requires. Meza argues that unlike the
complaint in Hudson, here Meza alleges a violation of
section 2802 for failure to reimburse expenses relating to
uniforms. Moreover, Hudson contained some additional claims
that are not present in the current action, including claims
relating to compensation for loading vehicles and interference
with meal and rest breaks necessitated by client appointment
scheduling.
We disagree that these asserted differences between the
two actions mean that the cases are not the same cause of action
for claim preclusion purposes. “ ‘Two proceedings are on the
same cause of action if they are based on the same “primary
right.” [Citation.] The plaintiff’s primary right is the right to be
free from a particular injury, regardless of the legal theory on
which liability for the injury is based.’ ” (Crosby v. HLC
Properties, Ltd. (2014) 223 Cal.App.4th 597, 603.) In other
words, “ ‘ “[i]f the matter was within the scope of the action,
related to the subject matter and relevant to the issues, so that it
could have been raised, the judgment is conclusive on it despite
the fact that it was not in fact expressly pleaded or otherwise
urged.” ’ ” (Amin v. Khazindar (2003) 112 Cal.App.4th 582, 589–
590.)
Meza’s claims concern the same primary right as those at
issue in Hudson. Shine v. Williams-Sonoma, Inc. (2018)
23 Cal.App.5th 1070 (Shine) is instructive. In Shine, the plaintiff
was the member of a class action, the Morales action, against the
defendant Williams-Sonoma. (Id. at p. 1074.) The Morales
complaint sought on behalf of class members unpaid wages,
alleging failure to provide meal and rest periods and certain
32
required wages. (Id. at p. 1077.) The plaintiff in Shine received a
share of settlement proceeds. (Id. at p. 1074.)
Later, plaintiff brought a putative class action of his own
against William Sonoma. (Shine, supra, 23 Cal.App.5th at
p. 1074.) His action sought reporting-time pay for on-call shifts
canceled during the time covered by the Morales settlement
agreement, an issue not raised in the Morales complaint. (Id. at
p. 1077.) Division Four of this district affirmed the trial court’s
order sustaining a demurrer on claim preclusion grounds. (Ibid.)
The Shine court held that “[b]ecause reporting-time pay is a form
of wages, a claim for reporting-time pay could have been raised in
the [prior] action.” (Ibid.) “The fact that no claim for reporting-
time pay was alleged in [the prior action] d[id] not alter [the
court’s] determination that the same primary right, to seek
payment of wages due, was involved in both . . . case[s].” (Ibid.)
Villacres v. ABM Industries Inc. (2010) 189 Cal.App.4th 562(Villacres) similarly found an earlier class claim settlement
barred a plaintiff’s PAGA claims under the doctrine of claim
preclusion. Both the claims in the prior lawsuit and in plaintiff’s
action required proof of a Labor Code violation. (Id. at p. 584.)
Though the plaintiff alleged additional claims under PAGA,
including violations of additional Labor Code provisions, the
court found that these claims all “were within the scope of the
[prior] litigation and were related to the subject matter and
issues in that action: the payment of wages and penalties by the
same employer.” (Villacres, at p. 584.)
Here, both Hudson and the current action alleged a failure
to pay wages in connection with Pacific Bell’s purported failure to
provide compliant meal and rest periods, as well as a failure to
provide accurate wage statements and failure to pay wages owed
33
at termination. The only claim asserted by Meza that was not
asserted in Hudson is a claim under section 2802 for failure to
pay for upkeep of uniforms. But this, too, is a claim for “the
payment of wages.” (In re Work Uniform Cases (2005)
133 Cal.App.4th 328, 338 [payment for work uniforms is form of
wage].) It could have been brought in Hudson. Indeed, the
Villacres plaintiff likewise asserted a section 2802 claim that had
not been raised in the prior action, and the court held that the
doctrine of claim preclusion nevertheless applied. (Villacres,
supra, 189 Cal.App.4th at p. 584.) Meza does not seek to
distinguish these decisions nor identify any contrary authority.
B. The Hudson release does not waive claim
preclusion
Meza argues that the settlement agreement in Hudson
waived Pacific Bell’s claim preclusion defense. We disagree.
“Although ‘a stipulated judgment normally concludes all
matters put into issue by the pleadings, the parties can agree to
restrict its scope by expressly withdrawing an issue from the
consent judgment.’ ” (Sargon Enterprises, Inc. v. University of
Southern California (2013) 215 Cal.App.4th 1495, 1507.) Thus,
in “applying the doctrine of res judicata, courts may examine the
terms of the settlement agreement to ensure that the defendant
did not waive res judicata as a defense.” (Villacres, supra,
189 Cal.App.4th at p. 577.) This exception to the res judicata
effect of a judgment “requires that an otherwise included issue be
withdrawn by an express reservation.” (Ellena v. State of
California (1977) 69 Cal.App.3d 245, 261.)
Nothing in the Hudson release waives the claim preclusion
effect of the judgment. To the contrary, the Hudson settlement
broadly releases “any and all known and unknown wage and hour
34
related claims that arise out of the facts asserted in the operative
complaint in the Action.” The release includes “without
limitation,” the claims in the complaint. The Hudson release
does expressly preserve Meza’s claims about the legality of Pacific
Bell’s wage statements under section 226 (i.e., the claim that was
the subject of the trial court’s wage statement order discussed in
detail above). But Meza points to no language preserving his
PAGA claims.
Meza argues that because the Hudson release does not use
language releasing claims that “could have been” alleged in the
complaint, “the claims released by the Hudson settlement are
specific and narrow.” We disagree. “As with any contract, the
language of a settlement agreement must be viewed in its
entirety, and, if possible, every provision must be given effect.”
(Shine, supra, 23 Cal.App.5th at p. 1080.) The Hudson release
encompasses “any and all” claims, “known and unknown,” arising
from the facts alleged in the Hudson complaint, including,
without limitation, Pacific Bell’s failure to pay wages for non-
compliant meal and rest periods. Releases containing “ ‘known or
unknown’ ” language (Brinton v. Bankers Pension Services, Inc.
(1999) 76 Cal.App.4th 550, 559) have been described as “very
broad and comprehensive in scope” (id. at p. 560). For example,
in Winet v. Price (1992) 4 Cal.App.4th 1159, 1162 to 1163, the
general release provided for a release of “ ‘any and
all . . . claims, . . . damages and causes of action whatsoever, of
whatever kind or nature, whether known or unknown, or
suspected or unsuspected . . . against any other Party.’ ” The
court found this release to be “about as complete, explicit and
unambiguous as a general release can be.” (Id. at p. 1173.)
35
Although the Hudson release is limited to wage and hour
related claims, rather than claims of any “kind or nature” (Winet
v. Price, supra, 4 Cal.App.4th at p. 1163), the release is
comprehensive as to wage and hour claims. Shine and Villacres
are once again instructive as they both rejected attempts by the
plaintiff to construe a release narrowly as a waiver of res
judicata. (Shine, supra, 23 Cal.App.5th at pp. 1078–1080;
Villacres, supra,189 Cal.App.4th at pp. 585–587.) Although the
release here does not include the phrase “could have been”
alleged, the release uses other broad language to cover such
claims. Meza’s contrary interpretation—that the release here is
limited to the facts set forth in the complaint—would render the
“any and all known and unknown wage and hour related claims”
language a nullity. Reading the release as a whole, as we must,
we conclude that the trial court properly granted summary
adjudication of Meza’s PAGA claim.
C. Meza cannot pursue claims outside of the
Hudson settlement date range
Meza asserts that, notwithstanding the Hudson release by
its terms covering claims dating back to 2012, the release should
be considered ineffective for claims that predate the statute of
limitations period, which Meza states is October 2015. First, we
deem this argument waived, because Meza has failed to assert
any citation to legal authority in support of the argument.
(Hoffmann v. Young (2020) 56 Cal.App.5th 1021, 1029.) Even
were we to reach it, Meza’s argument lacks merit. At least one
court has found that nothing in the PAGA statute precludes a
plaintiff “from releasing PAGA claims outside the limitations
period of her own claim.” (Amaro v. Anaheim Arena
Management, LLC (2021) 69 Cal.App.5th 521, 541.) Moreover,
36
the time has long passed for raising a theoretical argument that
the Hudson court should not have granted judgment as to earlier
claims. Any such error “ ‘could have been corrected only on an
appeal from the judgment or other timely and direct attack
thereon; but the judgment, having become final, is not subject to
review in another action for error committed in the exercise of the
court’s jurisdiction.’ ” (Aerojet-General Corp. v. American Excess
Ins. Co. (2002) 97 Cal.App.4th 387, 398.)
Meza argues that Hudson did not settle PAGA claims that
postdated the settlement. Again, Meza waived this argument by
failing to cite to legal authority. (Hoffmann v. Young, supra, 56
Cal.App.5th at p. 1029.) Moreover, Meza’s argument lacks merit
because it seeks to assert claims from after Meza left Pacific
Bell’s employment. (See Robinson v. Southern Counties Oil Co.
(2020) 53 Cal.App.5th 476, 483–484 [barring representative
action from after individual representative left company].)
Accordingly, Meza cannot assert these later claims.
37
DISPOSITION
The appeal from the order disposing of Dave Meza’s Labor
Code section 226, subdivision (a)(6) claim is dismissed. The order
denying class certification is reversed with directions to the trial
court to consider whether Meza is an adequate and typical class
representative. The orders granting summary adjudication of
Meza’s section 226, subdivision (a)(9) and the PAGA claims are
affirmed. The parties are to bear their own costs on appeal.
CERTIFIED FOR PARTIAL PUBLICATION.
LIPNER, J.*
We concur:
EDMON, P. J.
LAVIN, J.
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
38