Filed 8/14/18 Vance v. Quikrete California, LLC CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

—-

CURTIS VANCE,

Plaintiff and Appellant,

v.

QUIKRETE CALIFORNIA, LLC,

Defendant and Respondent.

C082468

(Super. Ct. No. 34-2016-00189234-CU-OE-GDS)

Plaintiff Curtis Vance prevailed in an administrative proceeding before the Labor Commissioner on claims for unpaid wages. Defendant Quikrete California, LLC (Quikrete), sought de novo review in the superior court. (Lab. Code, § 98.2.) At the conclusion of Vance’s case, Quikrete moved for judgment pursuant to Code of Civil Procedure section 631.8. The trial court concluded that Quikrete had demonstrated that it had complied with newly enacted section 226.2, which barred Vance from seeking compensation for “nonproductive” time or various penalties for the unpaid wages, and his remaining claims suffered from a failure of proof. Vance appeals. We must reverse the judgment and remand for proof that Quikrete has completed its obligation under section 226.2 to compensate all employees retroactively (who are so entitled) in order to claim the benefit of the statute. We accordingly do not reach the remainder of Vance’s issues.

FACTUAL AND PROCEDURAL BACKGROUND

Before we relate the particulars of the present case, we need to provide the legal context for the dispute. In Bluford v. Safeway, Inc. (2013) 216 Cal.App.4th 864 and Gonzalez v. Downtown LA Motors, LP (2013) 215 Cal.App.4th 36, the compensation scheme for piece workers was upended; as the Legislature has summarized, the decisions “require that nonproductive time, which is time under the employer’s control for which the employee is not producing ‘pieces,’ rest periods, and recovery periods must be compensated separately and distinctly at [least at] the minimum wage or more.” (Sen. Com. on Labor and Industrial Relations, analysis of Assem. Bill No. 1513 (2015-2016 Reg. Sess.) Sept. 9, 2015, p. 2.) To Assembly Bill No. 1513, the Senate added amendments to codify the holdings of the cases (along with further specifications) and to “allow employers to [use] an affirmative defense against claims of [a] . . . failure [timely to] pay compensation due for rest periods, recovery periods, and nonproductive time” (Sen. Com. analysis, supra, p. 2) between July 2012 and December 2015 if, inter alia, the employer makes payments “to all current and former piece-rate employees” (ibid., italics added), with an exception for a failure to make payments to all affected current and former employees that is the result of an error in good faith (id. at p. 4). The desire was to protect employers from an unanticipated expansion of their duties that could trigger penalties, while also protecting the aggrieved undercompensated workers. (Id. at p. 5.) The legislative history stressed that this would be an affirmative defense with the burden of proof on the employer. (Id. at p. 6.)

On return to the Assembly, the analysis concurred with the Senate. (Assem. Com. on Labor and Employment, rep. on Assem. Bill No. 1513 (2015-2016 Reg. Sess.), as amended Sept. 9, 2015, pp. 4-5.) This intent found expression in section 226.2, effective January 1, 2016. (Stats. 2015, ch. 754, § 4.) Subdivision (b)(1) of section 226.2 thus provides, in pertinent part, that the defense is available if the employer “makes payments to each of its employees . . . for previously uncompensated or undercompensated rest and recovery periods and other nonproductive time . . . ” from July 2012 to December 2015, and, as provided in subdivision (b)(4), “calculates and begins making payments to employees . . . and completes the payments by no later than December 15, 2016 . . . .” (Italics added.)

The intent of the Legislature could not be more plain. In order to establish a defense under section 226.2 in a wage claim, the employer has the burden of establishing that each and every employee entitled to additional compensation for rest and recovery periods and nonproductive time had been made whole by December 15, 2016. It did not state the payment may be made to “a” or “the” employee. Otherwise an employer could pay off the earliest claim and claim the benefit of the defense without any guarantee that it would pay the remainder. Requiring the completion of the process also spurs employers into promptly resolving potential claims. Nothing in the legislative history indicates anything to the contrary.

Given our resolution of the matter, we do not need to dwell on the details of Vance’s claim. As the parties do not dispute the accuracy of the statement of facts in the trial court’s ruling, we draw them from that source.

Vance worked as a truck driver for Quikrete from November 2011 to November 2014, delivering construction materials. He was paid a “piece rate” for each delivery and a “standby” hourly rate for waiting time in the loading or unloading of the truck in excess of one hour. In his administrative claim, Vance asserted that he spent extensive amounts of time in connection with these deliveries for which he was not compensated under this system. He also claimed that he was not provided a primary meal period, or a secondary meal period when his work day exceeded 10 hours, and was not reimbursed for work-related expenses. He also asserted various statutory violations and penalties. This resulted in an award of over $78,000 in damages, penalties, and interest in December 2015. While this matter was pending in the trial court, Quikrete sent payment to Vance in excess of $4,300 pursuant to section 226.2, and submitted proof to the trial court that as to plaintiff it had complied with the statute, and had “begun to make payments” to its remaining employees (italics added). The trial court, as noted, concluded Quikrete was entitled to judgment in its behalf under section 226.2 with respect to Vance’s wage claims, including those relating to the meal periods. As to Vance’s remaining claims regarding the failure to reimburse him for use of his personal cell phone for business and violations of record-keeping obligations, the trial court found Vance had failed to prove his case. It subsequently denied his motion for costs and legal fees in excess of $200,000 for the litigation of the case from January to May 2016, concluding that the legislative history of section 226.2 was expressly neutral on the effect of the statute on any right to costs and legal fees, and that Quikrete could not be considered unsuccessful in invoking section 226.2 in a trial de novo as a defense such that it would incur liability for costs and fees.

DISCUSSION

As we have noted above, we agree with Vance that the trial court erred in its interpretation of section 226.2 as allowing an employer to assert the defense in medias res before compensating all of its employees for the wages to which they are entitled under the statute. We must therefore reverse the judgment for want of proof that Quikrete has completed the process of compensating all of its employees for the wages to which they are entitled under section 226.2 before it may claim the benefit of that provision.

As we also noted above, we attempted to relieve the parties of the burden of any further litigation, but they were unable to stipulate to the necessary facts that we were willing to receive on appeal. We do not offer dictum with respect to Vance’s arguments relating to his other claims for meal breaks, business expenses, and record-keeping violations in advance of any trial court finding that in fact Quikrete is now entitled to the section 226.2 defense, nor do we offer advisory analysis with respect to the trial court’s past ruling on costs and legal fees that may or may not be reiterated on remand. In keeping with the Supreme Court’s guidance, we thus reserve ruling on these matters until they are squarely presented to us. (E.g., People v. Page (2017) 3 Cal.5th 1175, 1188, fn. 5.)

DISPOSITION

The judgment is reversed and the matter remanded with directions to receive evidence whether defendant Quikrete has satisfied its obligations under section 226.2 in

order to claim the benefit of that statute, and to proceed accordingly thereafter. Neither party shall recover costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)

BUTZ , J.

We concur:

BLEASE , Acting P. J.

MAURO , J.