Filed 9/18/19 Woodruff v. County of San Diego In-Home Support Services Public Authority CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

DEBIE WOODRUFF et al.,

Plaintiffs and Respondents,

v.

COUNTY OF SAN DIEGO IN-HOME SUPPORT SERVICES PUBLIC AUTHORITY,

Defendant and Appellant.

D072937

(Super. Ct. No. 37-2008-00096957-

CU-OE-CTL)

APPEAL from a judgment of the Superior Court of San Diego County, Ronald L. Styn, Judge. Affirmed.

Thomas E. Montgomery, County Counsel, William H. Songer and Darin L. Wessel, Deputies County Counsel, for Defendant and Appellant.

Law Offices of David J. Gallo and David J. Gallo for Plaintiffs and Respondents.

I.

INTRODUCTION

The Legislature enacted the In–Home Supportive Services (IHSS) program (Welf. & Inst. Code, § 12300 et seq.) to provide supportive services to qualified aged, blind or disabled persons (IHSS recipients) to allow them to remain in their homes and avoid institutionalization. (Guerrero v. Superior Court (2013) 213 Cal.App.4th 912, 920 (Guerrero).) The California Department of Social Services (DSS) ” ‘promulgates regulations that implement the program, and county welfare departments administer the program’ ” under the supervision of DSS. (Id. at p. 921.) A county may administer its IHSS program in various ways, including by establishing a public authority. (Id. at p. 923.)

In San Diego County, the IHSS program is administered through defendant County of San Diego In-Home Supportive Services Public Authority (Public Authority). Plaintiffs Debie Woodruff, Ollie Katrina Baptiste, Miriam St. Germaine, and Cynthia Byrd provided in-home supportive services to IHSS recipients through Public Authority.

In 2008, plaintiffs filed this action against Public Authority alleging various wage and hour violations on behalf of themselves and a class of similarly situated IHSS providers. In 2014, after the trial court issued numerous rulings in the matter and held a jury trial, this court issued an opinion in a prior appeal resolving several issues pertaining to the action. (Woodruff v. County of San Diego In-Home Supportive Services Public Authority (Jun. 24, 2014, D062180) [nonpub. opn.] (Woodruff I)).

As relevant to the present appeal, the Woodruff I court concluded that Public Authority was plaintiffs’ employer for purposes of plaintiffs’ claims for wages, overtime, and expense reimbursements. (Woodruff I, supra, D062180, slip opn. at pp. 18–37.) The Woodruff I court also concluded that plaintiffs might be entitled to compensation for time that they spent submitting certain enrollment forms mandated by the Legislature’s 2009 enactment of section 12301.24 even though plaintiffs were not entitled to compensation for time spent acting “in compliance with a government directive.” (Woodruff I, supra, D062180, slip opn. at p. 43.) The Woodruff I court reasoned that although the Legislature mandated that “prospective providers” attend an in-person enrollment orientation, the Legislature did not require “current providers,” such as plaintiffs, to complete the enrollment process in person. (Id. at pp. 42–43 [comparing § 12301.24, subd. (a) with subd. (c)].) Thus, the Woodruff I court concluded that plaintiffs might be entitled to compensation if they could establish that their employer, Public Authority, directed current providers to travel to an enrollment center to attend an orientation or to submit their enrollment forms in person, given the lack of any in-person requirement for current providers in 12301.24, subdivision (c). (Woodruff I, supra, D062180, slip opn. at p. 43.)

On remand from Woodruff I, plaintiffs filed a second amended complaint bringing claims including: failure to pay minimum wage for current providers who were required to attend a provider orientation and complete the section 12301.24 enrollment process in person, nonpayment of overtime, and failure to reimburse for business expenses. The trial court partially granted plaintiffs’ motion for class certification and certified a class solely with respect to plaintiffs’ minimum wage section 12301.24 claim.

The trial court held a jury trial and the jury rendered a special verdict in favor of both the plaintiff class and the individual plaintiffs. With respect to the class claim, the jury found that the plaintiffs were entitled to compensation for hours worked while traveling to an enrollment center to submit their section 12301.24 enrollment forms in person. With respect to the individual claims, the jury found that each of the four plaintiffs was entitled to recover overtime compensation and reimbursement for employment expenses. The court entered a judgment for the class and the individual plaintiffs consistent with the jury’s verdict and awarded plaintiffs costs and attorney fees.

On appeal, Public Authority contends that the class claim fails as a matter of law and that the trial court erred in instructing the jury with respect to that claim. As to the individual claims, Public Authority contends that the plaintiffs’ claims for overtime compensation and expense reimbursements should be reversed because the trial court erred in determining that Public Authority is the plaintiffs’ employer as a matter of law. Public Authority also claims that the judgment for the individual plaintiffs’ on their claims for overtime compensation should be reversed because the trial court committed two errors related to the “personal attendant” exemption to overtime pay, one relating to the court’s jury instructions with respect to this issue and the other pertaining to the court’s exclusion of evidence that Public Authority sought to offer to prove the exemption. (Cal. Code Regs., tit. 8, § 11150, subd. (1)(B).) Finally, Public Authority maintains that the trial court erred in instructing the jury with respect to plaintiffs’ claims for expense reimbursements.

We affirm the judgment in its entirety.

II.

FACTUAL AND PROCEDURAL BACKGROUND

A. The trial on remand from Woodruff I

As discussed in greater detail in part III.A.2.b, post, plaintiffs presented evidence that Public Authority directed the plaintiff class to submit their section 12301.24 enrollment forms in person at various enrollment centers that Public Authority operated to implement various statutes enacted in 2009.

Plaintiffs presented evidence both that they had worked uncompensated overtime and that they were not exempt from overtime pay requirements pursuant to the personal attendant exemption. Plaintiffs also presented evidence that they had incurred expenses (primarily mileage expenses) for which they had not been reimbursed by Public Authority.

B. The jury’s special verdict

The jury rendered a special verdict in favor of the plaintiff class and the individual plaintiffs. The jury found that the plaintiff class was entitled to a total of $111,000 for hours worked while traveling to enrollment centers to submit their section 12301.24 enrollment forms in person, and an additional $74,925 in prejudgment interest. With respect to the individual claims, the jury found that each of the four plaintiffs was entitled to overtime compensation and reimbursement for employment expenses in varying amounts, together with corresponding prejudgment interest on the overtime claims. With respect to each plaintiff, the jury found that Public Authority had not proven that the personal attendant exemption applied to plaintiffs.

C. The judgment

The trial court entered a judgment consistent with the jury’s verdict against Public Authority and in favor of the plaintiff class in the amount of $185,925, and in favor of the individual plaintiffs in the following amounts: Woodruff, $20,638.94; Baptiste, $95,230; St. Germain, $17,789.60; and Byrd, $15,513.73.

D. The appeal

Public Authority appeals from the judgment.

III.

DISCUSSION

A. The class claim does not fail as a matter of law and Public Authority has not established that the trial court erred in instructing the jury with respect to that claim

Public Authority claims that the class claim for minimum wages for time that plaintiffs spent submitting section 12301.24 forms in person to Public Authority fail as a matter of law. In the alternative, Public Authority contends that the class claim must be reversed due to instructional error. We first discuss the relevant law and provide additional factual and procedural background relevant to both claims before considering each claim individually.

1. Governing law

a. Relevant provisions of Wage Order No. 15-2001

Wage Order 15-2001 (Wage Order No. 15) “applies to persons employed in ‘household occupations,’ including IHSS providers,” such as plaintiffs. (Woodruff I, supra, D062180, slip opn. at p. 16.) The order specifies that “[e]very employer shall pay to each employee, on the established payday for the period involved, not less than the applicable minimum wage for all hours worked in the payroll period, whether the remuneration is measured by time, piece, commission, or otherwise.” (Cal. Code. Regs. tit. 8, 11150, subd. (4).) The order defines ” ‘[h]ours worked’ ” as “the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so.” (Id., subd. (2)(H).)

b. Relevant statutory law

i. Section 12301.24

The Legislature enacted section 12301.24 in 2009. (Stats. 2009–2010, 4th Ex. Sess., ch. 17, § 3.) The statute established a set of requirements for “prospective [IHSS] providers” (id. at subd. (a), italics added) as well as then existing or “current [IHSS] providers.” (Id. at subd. (c), italics added.) With respect to prospective providers, section 12301.24, subdivision (a) required that, “[e]ffective November 1, 2009, all prospective providers shall complete a provider orientation at the time of enrollment,” covering various topics pertaining to the IHSS program. (Ibid.)

With respect to “current providers,” section 12301.24, subdivision (c) provided as follows:

“Between November 1, 2009, and June 30, 2010, all current providers shall receive the information described in this section. Following receipt of this information, a provider shall submit a signed agreement, consistent with the requirements of this section, to the appropriate county office.”

The DSS developed a form (SOC 846) to be used by “current providers” (§ 12301.24, subdivision (c)) in complying with this requirement.

ii. Section 12305.81

Also in 2009, the Legislature amended section 12305.81 to require all IHSS providers to submit certain anti-fraud documentation in person to IHSS authorities. (Stats. 2009–2010, 4th Ex. Sess., ch. 4, § 27.) Section 12305.81, subdivision (a) required all IHSS providers to submit “in person” (italics added) a “provider enrollment form” together with “documentation verifying the provider’s identity.” The statute provides in relevant part:

“[DSS] and the State Department of Health Care Services shall develop a provider enrollment form that each person seeking to provide supportive services shall complete, sign under penalty of perjury, and submit to the county. Submission of the form shall include the photocopying by the county of original documentation verifying the provider’s identity . . . . A provider shall submit the form to the county in person, and the county shall retain the form and a copy of the identification documentation in the file of the provider.”

Section 12305.81, subdivision (a), (1) through (5) specified the contents of the provider enrollment form, which included information pertaining to certain convictions that would disqualify the person from providing IHSS services and required the provider to attest that he or she did not have any qualifying convictions.

The DSS developed forms (SOC 426, SOC 426A) to be used by IHSS providers in complying with section 12305.81.

iii. Sections 12301.6 and 12305.86

In 2009, the Legislature also amended section 12301.6 and added section 12305.86 to require IHSS authorities to obtain criminal background checks of all IHSS providers. (Stats. 2009–2010, 4th Ex. Sess., ch. 17, § 11.) Both statutes explicitly provide that IHSS providers shall pay for the criminal background checks. (§§ 12301.6, subd. (e)(1), (2)(A)(i), 12305.86, subd. (b).)

c. Woodruff I

In Woodruff I, this court considered whether the trial court erred in denying class plaintiffs leave to amend to state a claim for compensation for time spent completing the section 12301.24 enrollment process in person at various enrollment centers set up by Public Authority. (Woodruff I, supra, D062180, slip opn. at p. 41.) We explained that plaintiffs claimed that Public Authority had required current providers to complete the section 12301.24 enrollment process in person, even though section 12301.24 imposed that requirement only on prospective providers. (Woodruff I, supra, D062180, slip opn. at p. 41.) We reasoned that the trial court erred in denying plaintiffs’ request to amend their complaint to state a claim based on this theory:

“We conclude that the trial court abused its discretion when it denied [plaintiffs’] request to amend their complaint to add a claim for compensation for time spent . . . completing the enrollment process in person. In denying the request to amend, the court misinterpreted section 12301.24 by applying the statutory requirements that govern prospective providers’ enrollment in IHSS to current providers. . . . [¶] [Plaintiffs] may be entitled to compensation for ‘hours worked’ if they can establish that Public Authority directed current providers to . . . travel to an enrollment center to submit their signed agreements.” (Id. at pp. 42–43.)

However, the Woodruff I court concluded that the plaintiffs could not state a claim for time spent reviewing written materials to comply with section 12301.24. (Woodruff I, supra, D062180, slip opn. at pp. 39, 43.) We reasoned that “[plaintiffs] are not entitled to compensation for time spent reviewing written materials in compliance with a government directive. (DLSE Opn. Letter, Nov. 25, 2008.)” (Id. at p. 43.)

The Woodruff I court also concluded that the plaintiffs could not state a “cause of action for minimum wage[s] for time spent or reimbursement for expenses incurred in obtaining a background check because the Legislature expressly directed that ‘[c]riminal background checks shall be conducted at the provider’s expense.’ ” (Woodruff I, supra, D062180, slip opn. at p. 40.)

The Woodruff I court did not discuss section 12305.81, and what effect, if any, it might have on plaintiffs’ ability to prove their claim for submitting their section 12301.24 forms (i.e., SOC 846 forms) in person.

2. Factual and procedural background

a. Pretrial hearings

During a pretrial hearing concerning the parties’ motions in limine and jury instructions, Public Authority’s counsel argued that plaintiffs could not establish their claim for minimum wages for time spent travelling to enrollment centers to submit their section SOC 846 forms. Counsel noted that it was undisputed that section 12305.81 required plaintiffs to appear in person to submit their SOC 426 and 426A forms. Thus, according to Public Authority’s counsel, plaintiffs were not entitled to be paid for the time spent travelling to Public Authority’s enrollment centers to turn in their SOC 426 and 426A forms or their SOC 846 forms because the undisputed evidence established that plaintiffs had turned in all of the forms (i.e., SOC 426, 426A, 846) at the same time. Public Authority’s counsel argued that, as a result, plaintiffs’ minimum wage claim failed as a matter of law insofar as it was premised on plaintiffs’ time spent travelling to an enrollment center to submit their SOC 846 forms.

In response, plaintiffs’ counsel argued that the Woodruff I court had concluded that current providers, such as plaintiffs, were entitled to compensation for time spent submitting their SOC 846 forms in person and that this ruling constituted law of the case. Plaintiffs’ counsel also argued that Public Authority required that plaintiffs turn in their SOC 846 forms in person, notwithstanding that section 12301.24, subdivision (c) did not mandate that current providers submit these forms in person. Plaintiffs’ counsel contended that even if section 12305.81 required all providers to appear in person to submit their SOC 426 and 426A forms, this fact did not preclude the jury from awarding plaintiffs compensation for time spent submitting their SOC 846 forms in person at the same time.

The trial court ruled that plaintiffs could proceed with their claim for minimum wages for time spent submitting their SOC 846 forms in person. In reaching this conclusion, the trial court reasoned in part:

“I’m going to go with the Court of Appeal [in Woodruff I]. And I

don’t know whether they considered that[ ] and decided that it didn’t apply. I don’t know what all their reasoning was. But their statement is absolutely clear. And I don’t think as a trial judge that I can ignore it.”

In addition, as discussed in greater detail in part III.A.4, post, the trial court refused to instruct the jury pursuant to two alternative instructions that Public Authority offered with respect to this issue. One instruction was entitled, “No compensation for time spent complying with state directive” (some capitalization omitted) (“No Compensation Instruction”) and the second was entitled, “Time spent complying with state directive does not constitute ‘Hours Worked’ ” (some capitalization omitted) (“Time Spent Instruction”).

b. Trial evidence

At trial, plaintiffs presented evidence that Public Authority had directed plaintiffs to submit their SOC 846 forms in person at various enrollment centers set up by Public Authority to implement the various statutory mandates passed by the Legislature in 2009. For example, plaintiffs offered in evidence an enrollment checklist entitled “IHSS Individual Provider (IP) Enrollment Checklist (Current IP).” One of the items on the checklist stated, “Sign Form SOC 846 (BRING THE FORM TO THE ENROLLMENT LOCATION).” The checklist also stated, “You must submit the paperwork and provide proof of identification at the enrollment location.”

c. The trial court’s jury instruction on plaintiffs’ claim

The trial court instructed the jury concerning plaintiffs’ claim pursuant to Special Instruction No. 17 in relevant part as follows:

“The Plaintiff Class is entitled to be compensated for any time which Providers may have expended in traveling to an Enrollment Center to submit their signed Form 846 Provider Agreements, and in submitting their signed Form 846 Provider Agreements, to the extent [Public Authority] may have suffered or permitted them to do so, whether or not they were required to do so.[ ]

“[¶] . . . [¶]

“The Plaintiff Class is not entitled to be compensated for time expended in completing criminal background checks, or traveling to an Enrollment Center to comply with criminal background check requirements.”

d. Jury’s question and the trial court’s response

During its deliberations, the jury sent a note to the court posing the following question:

“Is Form 846 considered separate from all background check required documents required at the Enrollment Center?

“We have some concern with possible conflicting instructions as circled in attached Special Instruction [No.] 17.”

Together with this note, the jury sent the court a copy of Special Instruction No. 17 with the paragraphs quoted in part III.A.2.c, ante, circled.

The court and counsel discussed the jury’s question. Plaintiffs’ counsel agreed with the court’s proposed response to instruct the jury that “Form 846 . . . is not part of the criminal background check.” Public Authority’s counsel argued that the jury’s question presented a question of fact that the jury itself was obligated to answer. Specifically, Public Authority’s counsel argued:

“Your honor, our position is that it is part of the process. I think what the jury is asking is whether travel was required in this unique instance. If travel is required [o]n one hand and not required on the other hand, then I believe it’s a fact question. Was it separate from the required documents required at the enrollment center? I think that’s a fact question that the jury has to determine.”

After further discussions, the trial court ruled that it would inform the jury, ” ‘The Form 846 is separate from the background checks.’ ” The court then sent the jury a written response stating the same.

e. The jury’s verdict

The jury returned a special verdict form that responded in the affirmative to the following question:

“Did the IHSS Provider Plaintiff Class perform any ‘hours worked’ while traveling to an Enrollment Center . . . to submit their signed Form 846 Provider Agreements, and/or in submitting their Signed Form 846 Provider Agreements in person?”

The next question of the verdict form asked the jury the following question:

“What is the total dollar amount of compensation owed to the members of the IHSS Provider Plaintiff Class (in the aggregate) for ‘hours worked’ traveling to an Enrollment Center . . . to submit their signed Form 846 Provider Agreements, and/or in submitting their signed Form 846 Provider Agreements in person?”

The jury responded, “[$]111,000.”

3. The plaintiffs’ class claim for minimum wages for time spent submitting SOC 846 forms does not fail as a matter of law

Public Authority claims that the plaintiffs’ class claim for minimum wages fails as a matter of law insofar as it is premised on plaintiffs’ time spent submitting SOC 846 forms. Public Authority contends that plaintiffs were not “entitled to minimum wages for travelling to enrollment centers to submit the SOC 846 form when the state expressly required in person presence at enrollment centers to present the SOC 426 form and identification[.]” We review this contention de novo, since it raises a question of law. (Cf. Souza v. Westlands Water Dist. (2006) 135 Cal.App.4th 879, 887 [“[t]he question is one of law, so our review is de novo”].)

We distill several distinct arguments in Public Authority’s brief in support of its claim. The first two arguments relate to our decision in Woodruff I and its application on remand under the law of the case doctrine. We summarized the law of the case doctrine in Morales v. 22nd Dist. Agricultural Assn. (2018) 25 Cal.App.5th 85, 98–99 (Morales):

” ‘ ” ‘The decision of an appellate court, stating a rule of law necessary to the decision of the case, conclusively establishes that rule and makes it determinative of the rights of the same parties in any subsequent retrial or appeal in the same case.’ ” ‘ [Citation.] ‘ “[Q]uestions presented and decided by [an] appellate court upon appeal from a judgment on demurrer become the law of the case, and are not open to question on a subsequent appeal” unless the evidence ” ‘is substantially different in a material respect.’ ” ‘ ”

First, Public Authority contends that the trial court erred in concluding that, under Woodruff I, plaintiffs could establish a claim for travel time for submitting their SOC 846 forms because the Woodruff I court did not consider the impact of section 12305.81 on plaintiffs’ ability to prove their claim. We agree with Public Authority that the law of the case doctrine and our decision in Woodruff I did not establish the legal sufficiency of plaintiffs’ claim. Our decision in Woodruff I merely concluded, that, based on the arguments presented in Woodruff I, plaintiffs “may be entitled to compensation for ‘hours worked’ if they can establish that Public Authority directed current providers to . . . travel to an enrollment center to submit their signed agreements.” (Woodruff I, supra, D062180, slip opn. at p. 43, italics added.) Such equivocal language does not establish, as law of the case, the legal sufficiency of the plaintiffs’ claim on remand. (See Morales, supra, 25 Cal.App.5th at p. 99 [concluding that prior opinion stating that plaintiffs’ could “allege a potentially valid claim,” and that plaintiffs had shown that they could “potentially amend their complaint,” was “equivocal language,” that did not establish as a matter of the law of the case that plaintiffs could adequately state a cause of action on remand].)

This is particularly true since the Woodruff I court did not discuss what effect, if any, section 12305.81 might have on the plaintiffs’ ability to prove their claim. (See Leider v. Lewis (2017) 2 Cal.5th 1121, 1130 (Leider) [concluding that law of the case doctrine did not preclude defendant from raising statutory defense not presented in prior appeal because “law of the case does not apply to arguments that might have been but were not presented and resolved on an earlier appeal”].)

However, even though the trial court erred in concluding that our decision in Woodruff I required that plaintiffs be permitted to present their claim to the jury, we reject Public Authority’s further contention that Woodruff I mandated the opposite result, namely, that plaintiffs’ claim failed as a matter of law. As discussed above, the Woodruff I court did not consider section 12305.81 in any respect and thus did not consider whether the “in person” submission of SOC 426 and 426A forms mandated by section 12305.81 precluded plaintiffs from prevailing on the claim for minimum wages for time spent submitting their SOC 846 forms in person. The law of the case doctrine does not apply under these circumstances. (See Leider, supra, 2 Cal.5th at p. 1130.)

With respect to the legal effect of the in-person requirement contained in section 12305.81 on plaintiffs’ claim for time spent submitting their SOC 846 forms in person—i.e., the merits of Public Authority’s claim on appeal—Public Authority makes a series of assertions concerning the evidence presented at trial, none of which establishes the legally insufficiency of plaintiffs’ claim. Public Authority maintains that “[t]he fact that SOC 846 forms were accepted by the Public Authority at the enrollment center did not change the state[-]imposed obligation that current providers appear in person.” Yet, plaintiffs presented evidence that Public Authority did not merely accept SOC 846 forms, but rather that Public Authority affirmatively directed plaintiffs to submit their SOC 846 forms in person, notwithstanding the lack of any statutory mandate for “current providers” to take such action under section 12301.24, subdivision (c). Thus, a reasonable jury could find that Public Authority required plaintiffs to submit their SOC 846 forms in person.

Public Authority also notes that DSS sent Public Authority various letters and bulletins instructing it with respect to how to comply with the statutory mandates contained in sections 12301.24 and 12305.81. However, Public Authority fails to identify any evidence establishing, as a matter of law, that the DSS instructed Public Authority to require “current providers” (§ 12301.24, subd. (c)) to submit their SOC 846 forms in person. In fact, the DSS letter that Public Authority quotes in its reply brief suggests, by way of negative inference, the opposite—that current providers were not required to submit SOC 846 forms in person. Public Authority states in its reply brief:

“The various bulletins repeatedly emphasized that providers must complete four requirements which include all the mandates of sections 12301.24 and 12305.81 [citations] and reminded the public entities that existing [i.e., current] providers ‘are required to submit SOC 426 in person . . . and also return a signed SOC 846.’ ” (Italics added.)

Finally, Public Authority contends that the evidence establishes that “no one travelled to an Enrollment Center solely to submit their SOC 846 form.” (Italics added.) However, Public Authority presents no authority for its suggestion that plaintiffs had to travel to enrollment centers solely for a compensable purpose in order for plaintiffs to be entitled to receive minimum wages for their travel time. Phrased differently, Public Authority advances no compelling argument for why, as plaintiffs state, “travel time necessitated both by a non-compensable function [i.e., submitting SOC 426, 426A forms] and a compensable function [submitting SOC 846 forms] would not be compensable at all.” (Italics added.) We agree that there is no support in California law for the implicit premise in Public Authority’s contention that an employer may escape paying compensation for hours worked merely because the employee would otherwise be engaging in a similar activity even without the employer’s directive.

Further, under California law, while an employee’s ordinary commuting time is not compensable, time that an employee spends commuting subject to an employer’s control is compensable. (Morillion v. Royal Packing Co. (2000) 22 Cal.4th 575, 587 (Morillion) [employees performed compensable hours worked where employer required employees to meet at designated places to take its buses to work since they were ” ‘subject to the control of an employer’ “]; compare with Hernandez v. Pacific Bell Telephone Co. (2018) 29 Cal.App.5th 131, 141 (Hernandez) [concluding that voluntary program that permitted employees to commute from home to worksites did not constitute compensable work under the Morillion “control test”].) The jury could have reasonably found that the time plaintiffs spent submitting their SOC 846 forms pursuant to Public Authority’s directives constituted commuting time that was both subject to their employer’s control and was not state mandated.

Indeed, the Morillion court rejected the argument that travel time was noncompensable because the employees’ commute would have occurred irrespective of the employer’s directive to ride employer buses:

“Arguing that the compelled nature of plaintiffs’ travel is not dispositive, [employer] underscores the Court of Appeal’s policy argument: ‘Since the commute was something that would have had to occur regardless of whether it occurred on [employer’s] buses, and [plaintiffs] point to no particular detriment that ensued from riding the [employer’s] buses,’ compensating employees for this commute time would not ‘make sense, as a matter of policy.’ We are not persuaded.” (Morillion, supra, 22 Cal.4th at p. 587.)

Similarly, in this case, even assuming that plaintiffs’ travel to the enrollment centers “was something that would have had to occur regardless” of Public Authority’s directive for plaintiffs’ to bring their SOC 846 forms to enrollment centers (Morillion, supra, 22 Cal.4th at p. 587), plaintiffs presented evidence from which a jury could find that they were subject to the control of Public Authority when they travelled to the enrollment centers and submitted their SOC 846 forms in person, and that they were thus entitled to be compensated for that time.

Accordingly, we conclude that Public Authority is not entitled to reversal of the judgment on the ground that the class claim for wages for the time that plaintiffs spent travelling to an enrollment center to submit SOC 846 forms and in submitting SOC 846 forms fail as a matter of law.

4. The trial court did not err in instructing the jury on the class action claim

Public Authority claims that the judgment should be reversed for instructional error. It raises several distinct claims in that regard, each of which we address below.

“We review de novo the question of whether the trial court’s instructions to the jury were correct.” (Maureen K. v. Tuschka (2013) 215 Cal.App.4th 519, 526 (Maureen K.)

a. Public Authority has not established that the trial court erred in denying its requested No Compensation Instruction

In its opening brief on appeal, Public Authority notes that the Woodruff I court concluded that “time spent complying with a government directive does not constitute hours worked.” (Citing Woodruff I, supra, D062180, slip opn. at pp. 41–42, fn. 23.) Public Authority argues that the trial court erred in denying a “requested instruction [that] was consistent with that determination.”

“A party is entitled upon request to correct, nonargumentative instructions on every theory of the case advanced by him which is supported by substantial evidence.” (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 572 (Soule).) “A court may refuse a proposed instruction that incorrectly states the law or is argumentative, misleading, or incomplete.” (Caldera v. Department of Corrections and Rehabilitation (2018) 25 Cal.App.5th 31, 44.) “The trial court has no duty to instruct on its own motion, nor is it obligated to modify proposed instructions to make them complete or correct. [Citations.] Such instructions may be rejected without the trial court’s attempting to modify or correct them. [Citation.]” (Maureen K., supra, 215 Cal.App.4th at p. 526.)

Public Authority requested that the court instruct the jury pursuant to the No Compensation Instruction. The No Compensation Instruction stated as follows:

“Plaintiffs are seeking to be compensated for the time they claim they spent completing the State-mandated enrollment process for Current Providers in 2009–2010. The term ‘Current Providers’ is limited to those providers who were already proving services to an IHSS recipient before October 31, 2009. Plaintiffs contend they were told to attend classroom instruction in connection with the

enrollment process.[ ] [Public Authority] contends that there was no class offered or required; the [Public Authority] contends that it only required that all Current Providers and Prospective Providers . . . take those steps that were mandated by the State.

“The State imposed certain requirements on all Current Providers and created certain forms that all providers were required to sign and submit. The State required all Current Providers to complete an orientation and enrollment process. The State did not require then Current Providers to attend a class, but left Current Providers the option to attend a class if they chose to do so.

“The State required all Current Providers to review orientation materials and verify that they had reviewed it [sic]. You may not award compensation to the plaintiffs for the time they spent reviewing these materials.

“The State required all Current Providers to submit State-mandated paperwork in person at the enrollment center. The State also required that all Current Providers present two forms of specific, original identification in person at an enrollment center. You may not award compensation to the plaintiffs for the time or expense including travel time and expenses, incurred in submitting the paperwork or in presenting identification in person at an enrollment center.

“The State required all Current Providers to complete a criminal background check at their expense. You may not award compensation to the plaintiffs for the time or expense associated with the criminal background check.” (Italics added.)”

The italicized portion of Public Authority’s No Compensation Instruction was misleading because it suggested that the State had mandated that plaintiffs turn in all of their “paperwork” (i.e., both the SOC 426, 426A forms and the SOC 846 forms) in person, while plaintiffs presented evidence that it was solely Public Authority that mandated that plaintiffs turn in the SOC 846 forms in person. (See pt. III.A.2.b, ante.) Further, since the term “paperwork” in the requested instruction is most reasonably interpreted as including the SOC 846 form, the instruction is legally incorrect in that it would have informed the jury that it could not award plaintiffs compensation “for the time . . . including travel time . . . incurred in submitting the paperwork,”⸺a result contrary to our conclusion in part III.A.3, ante that the jury could have found that plaintiffs were entitled to be compensated for their travel time in turning in their SOC 846 forms. Accordingly, since Public Authority’s No Compensation Instruction was misleading and legally incorrect, the trial court did not err in refusing to instruct the jury pursuant to that instruction.

b. Public Authority forfeited the instructional claim that it raises for the first time on reply

In its reply brief, Public Authority argues for the first time on appeal that the trial court erred in denying its request to instruct the jury pursuant to the Time Spent Instruction. In its claim of instructional error in its opening brief, Public Authority did not cite the pages of the appellant’s appendix containing the Time Spent Instruction and it did not quote or otherwise discuss the wording of the Time Spent Instruction. Nor did Public Authority address the arguments for and against the giving of such an instruction that the parties presented in the trial court. Rather, in the portion of its opening brief raising its claim of instructional error, Public Authority cited to a single requested jury instruction—the No Compensation Instruction.

The law is well established that ” ‘ “points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before.” ‘ ” (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764 (Reichardt).) The rule is based on the premise that ” ‘ “[t]o withhold a point until the closing brief would deprive the respondent of his [or her] opportunity to answer it or require the effort and delay of an additional brief by permission.” ‘ ” (Ibid.)

Public Authority has not presented any argument on appeal for raising its claim pertaining to the Time Spent Instruction for the first time on reply or otherwise explain its failure to properly raise a claim pertaining to the Time Spent Instruction in its opening brief. Instead, in its reply brief, Public Authority cites to the Time Spent Instruction and contends that “[r]espondents [i.e., plaintiffs] misdirect this Court’s attention to a different proffered instruction (Vol. 3. AA 645) [i.e., the No Compensation Instruction] rather than the actual instruction at issue (Vol. 4 AA 759) [i.e., the Time Spent Instruction] . . . .” (Italics added.)

On the contrary, in responding to Public Authority’s claim on appeal, plaintiffs reasonably interpreted Public Authority as contending that the trial court erred in refusing the No Compensation Instruction. As discussed in part III.A.3, ante, plaintiffs persuasively argued that the trial court properly refused the No Compensation Instruction. Plaintiffs did not address the Time Spent Instruction in their brief. However, plaintiffs’ failure to discuss the Time Spent Instruction in its brief did not constitute “misdirect[ion],” since Public Authority did not properly raise a claim pertaining to the Time Spent Instruction in its opening brief.

Under these circumstances, we conclude that Public Authority forfeited its claim pertaining to the Time Spent Instruction. (See Varjabedian v. Madera (1977) 20 Cal.3d 285, 295, fn. 11 [“Obvious reasons of fairness militate against consideration of an issue raised initially in the reply brief of an appellant”].)

c. The trial court did not err in instructing the jury pursuant to Special Instruction No. 17

Public Authority contends that Special Instruction No. 17 was erroneous because it “misled the jury to believe that only criminal background check compliance was not compensable time.” This argument is unpersuasive because the instruction does not state as much. Rather, Special Instruction No. 17 merely says, consistent with Woodruff I, that “Plaintiff Class is not entitled to be compensated for time expended in completing criminal background checks.”

We also reject Public Authority’s contention that Special Instruction No. 17 was deficient “in indicating that current providers were entitled to compensation for time spent ‘in submitting their signed Form 846 Provider Agreements,’ ” and that the special verdict forms were similarly deficient because they “suggested class members were entitled to compensation for the time completing and submitting their SOC 846 forms . . . .” (Italics added.) The jury instruction and the verdict form required the jury to determine whether plaintiffs had performed “hours worked” in submitting the forms,—the appropriate inquiry under California law—and neither the jury instruction nor the verdict form directed the jury to return a verdict in favor of plaintiffs, as Public Authority appears to suggest.

d. Public Authority has not demonstrated that the trial court erred in its response to a jury question

Public Authority also contends that the trial court’s alleged instructional errors were prejudicial in light of the court’s response to the jury’s question concerning whether “Form 846 [is] considered separate from all background check required documents required at the Enrollment Center.” In light of our conclusion that Public Authority has failed to establish that the court committed any instructional error, we need not consider Public Authority’s argument as to prejudice. However, to the extent that Public Authority’s briefing may be read to assert that the trial court erred in responding to the jury’s question, we reject this claim.

Public Authority suggests that the trial court erred in “interpret[ing] the question literally,” and contends that the jury was “not asking about, whether these were separate forms or documents.” However, it was reasonable for the trial court to interpret the jury’s question “literally,” and to understand the jury to be asking, as the plain language of the question suggested, whether SOC 846 was a required background check document. That is because if SOC 846 were a background check document, then Special Instruction No. 17 arguably would have been in conflict with itself for the following reason.

Special Instruction No. 17 informed the jury that plaintiffs were not entitled to be compensated for “time expended in completing criminal background checks.” Thus, if SOC 846 were part of the “background check required documents,” then plaintiffs would not have been entitled to compensation for their submission under the instruction. Yet, the trial court also instructed the jury that plaintiffs were entitled to be compensated for “hours worked,” thereby informing the jury that it was to determine whether plaintiffs were to be compensated for their time spent submitting SOC 846 forms. Thus, by informing the jury that SOC 846 forms were not part of the criminal background check documents, the trial court clarified a reasonable source of confusion for the jury, thereby freeing it to answer the essential question of fact presented with respect to the class claim, i.e., whether plaintiffs had performed “hours worked” in submitting their SOC 846 forms.

Finally, we are not persuaded by Public Authority’s argument that the jury’s question demonstrates that the “jury struggled with the evidence that current providers were required by the state to travel to enrollment centers to submit identification and SOC 426 forms in person,” (italics added) since the question did not mention SOC 426 forms. In short, the trial court adopted a reasonable approach and interpreted the jury’s question pursuant to its plain and literal terms, providing a clear and responsive answer that assisted the jury in resolving whether plaintiffs performed “hours worked” in submitting their SOC 846 forms.

Accordingly, we conclude that the trial court did not err in instructing the jury on the class action claim.

B. The trial court did not err in determining that Public Authority was the individual plaintiffs’ employer for purposes of their claims for overtime and expense reimbursements

Public Authority claims that the portion of the judgment premised on the jury’s awarding the individual plaintiffs overtime pay and expense reimbursements should be reversed because the trial court erred in determining that Public Authority was the plaintiffs’ employer as a matter of law. Public Authority contends that the trial court should have instructed the jury that the jury was required to determine whether Public Authority was the plaintiffs’ employer for purposes of these claims and should have permitted Public Authority to present evidence on these issues.

Plaintiffs claim that the trial court properly determined that our decision in Woodruff I conclusively established, as a matter of law, that Public Authority was the plaintiffs’ employer with respect to their individual claims for overtime and expense reimbursements.

1. Law of the case

As discussed in part III.A.3, ante, ” ‘ ” ‘[t]he decision of an appellate court, stating a rule of law necessary to the decision of the case, conclusively establishes that rule and makes it determinative of the rights of the same parties in any subsequent retrial or appeal in the same case.’ ” ‘ ” (Morales, supra, 25 Cal.App.5th at pp. 98–99.)

2. Woodruff I

In Woodruff I, this court considered, among other claims, whether the trial court erred “by sustaining Public Authority’s demurrer to [plaintiffs’] claims for unpaid overtime wages on the ground that Public Authority, as a public entity, is exempt from subject wage and hour statutes and regulations.” (Woodruff I, supra, D062180, slip opn. at pp. 2–3.) In analyzing this claim, we first considered Public Authority’s contention that “it is not the [plaintiffs’] employer” for purposes of compliance with wage and hour laws. (Id. at p. 17.) We explained the basis for Public Authority’s contention in part as follows:

“Public Authority argues that every IHSS provider has more than one employer, each of which acts as an employer only for certain specified purposes. Public Authority asserts that it does not exercise control over the wages, hours, or working conditions of any provider and instead, acts merely as ‘a payroll processor.’ Public Authority maintains that the State of California is the employer of IHSS personnel for purposes of workers compensation, unemployment, federal and state income tax withholding, and old-age survivor and disability benefits [citations], and that the IHSS recipient is the provider’s employer for purposes of other applicable state or federal laws, including wage laws.” (Woodruff I, supra, D062180, slip opn. at p. 18, italics added.)

After extensively discussing the relevant case law and statutory scheme, the Woodruff I court concluded, “The trial court did not err when it determined that Public Authority is the employer of IHSS personnel [i.e., plaintiffs] under the IHSS statutory scheme for purposes of compliance with wage and hour laws.” (Woodruff I, supra, D062180, slip opn. at p. 23.)

In addition, the Woodruff I court expressly concluded that the trial court “erred when it denied [plaintiffs] leave to amend the complaint to add a claim for reimbursement of employee expenses under Labor Code section 2802.” (Woodruff I, supra, D062180, slip opn. at p. 27.) The Woodruff I court also concluded that the “[t]he trial court erred in sustaining Public Authority’s demurrer to claims for statutory and regulatory overtime.” (Id. at p. 28.)

3. Application

In its opening brief on appeal, Public Authority acknowledges that the trial court “interpreted this court’s decision in Woodruff I as conclusively establishing the Public Authority as the employer responsible for payment of overtime and expenses.” However, Public Authority’s opening brief on appeal fails to provide any argument with respect to whether the trial court erred in concluding that Woodruff I conclusively established Public Authority as plaintiffs’ employer responsible for payment of overtime and expense reimbursements. Nor does the Public Authority’s opening brief provide any discussion of the law of the case doctrine with respect to this issue or why that doctrine does not apply to preclude the Public Authority from relitigating the question of whether it was plaintiffs’ employer for purposes of their claims for overtime and expense reimbursements.

As discussed in part III.B.2, ante, our decision in Woodruff I concluded that Public Authority was plaintiffs’ employer for purposes of their claims for overtime and expense reimbursements. (Woodruff I, supra, D062180, slip opn. at p. 23.) This conclusion was “necessary to the decision of the case.” (Morales, supra, 25 Cal.App.5th at p. 98.) Woodruff I therefore, ” ‘ “conclusively establishes that rule and makes it determinative of the rights of the same parties in any subsequent retrial or appeal in the same case.” ‘ ” (Ibid.) Public Authority failed to demonstrate that the trial court erred in concluding that Woodruff I established that Public Authority is the plaintiffs’ employer for purposes of plaintiffs’ claims for overtime and expense reimbursements.

Accordingly, we conclude that the trial court did not err in instructing the jury that Public Authority was the plaintiffs’ employer for purposes of the individual claims for overtime and expense reimbursements. We further conclude that the trial court did not err in refusing Public Authority’s request to instruct the jury that it was required to determine whether Public Authority was the plaintiffs’ employer for purposes of these claims and in precluding Public Authority from presenting evidence with respect to this issue.

C. Public Authority has not established that the trial court committed any prejudicial error with respect to the personal attendant exemption to the payment of overtime wages

Public Authority claims that the judgment on the individual plaintiffs’ claims for overtime should be reversed because the trial court committed two errors related to the personal attendant exemption to overtime pay. Public Authority claims that the trial court erred in the manner by which it instructed the jury with respect to the exemption and also maintains that the trial court erred in excluding certain evidence that Public Authority offered in an attempt to prove the exemption. We need not determine whether the trial court erred in either respect because Public Authority failed to establish prejudice with respect to either asserted error, as is required.

1. The personal attendant exemption to the payment of overtime wages

As discussed in part III.A.1.a, ante, Wage Order No. 15 applies to plaintiffs. “Wage [O]rder No. 15 provides that nonlive-in employees shall not be employed more than eight hours in any workday or more than 40 hours in any workweek unless the employee receives one and a half times the employee’s regular rate of pay for all hours worked above 40 hours in the workweek.” (Woodruff I, supra, D062180, slip opn. at p. 34.)

However, Wage Order No. 15 provides an exemption from various provisions of the order, including the provision requiring the payment of overtime wages, for “personal attendants.” (Cal. Code Regs., tit. 8, § 11150, subd. (1)(B).) The order defines “personal attendant” in relevant part as follows:

” ‘Personal attendant’ . . . means any person employed by a private householder . . . to supervise, feed, or dress a child or person who by reason of advanced age, physical disability, or mental deficiency needs supervision. The status of ‘personal attendant’ shall apply when no significant amount of work other than the foregoing is required.” (Cal. Code Regs., tit. 8, § 11150, subd. (2)(J).)

“[A] ‘significant amount’ of work under the state regulation is that exceeding 20 percent of the total hours worked.” (Guerrero, supra, 213 Cal.App.4th at p. 956.) Courts “narrowly construe exemptions against the employer, ‘and their application is limited to those employees plainly and unmistakably within their terms.’ ” (Peabody v. Time Warner Cable, Inc. (2014) 59 Cal.4th 662, 667.) “Compliance with the requirements of [an] exemption is determined on a workweek basis.” (Id. at p. 670.)

2. Public Authority’s claims

a. Instructional error

Public Authority claims that the following portion of the trial court’s jury instruction concerning the personal attendant exemption was erroneous:

“No matter how many hours a Plaintiff worked in any particular workweek, they are not entitled to receive overtime compensation for that workweek if [Public Authority] has proved plainly and unmistakably that the Plaintiff was ‘exempt’ during that workweek.” (Italics added.)

Public Authority contends that it was required to prove the application of the exemption by a mere preponderance of the evidence and maintains that the trial court’s instruction improperly imposed “a higher, more stringent, burden of proof” than is legally required.

b. Evidentiary error

During the trial, Public Authority’s counsel attempted to elicit testimony from a Public Authority employee pertaining to the maximum number of hours that an IHSS recipient may be authorized to receive “domestic services” under DSS regulations. The trial court sustained plaintiffs’ objections to the introduction of the evidence. On appeal, Public Authority contends that this evidence was relevant to demonstrate that “among IHSS authorized hours a recipient could receive no more than 20 [percent] related to domestic services and therefore the personal attendant exemption to overtime applied.”

3. The relevant law governing the determination of prejudice

a. Instructional error

“A judgment may not be reversed for instructional error in a civil case ‘unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.’ (Cal. Const., art. VI, § 13.)” (Soule, supra, 8 Cal.4th at p. 580.) ” ‘No form of civil trial error justifies reversal and retrial, with its attendant expense and possible loss of witnesses, where in light of the entire record, there was no actual prejudice to the appealing party.’ ” (F.P. v. Monier (2017) 3 Cal.5th 1099, 1112.)

An instructional error is harmless where “it is not reasonably probable defendant would have obtained a more favorable result in its absence.” (Soule, supra, 8 Cal.4th at p. 570.) “In assessing prejudice from an erroneous instruction, we 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].’ ” (Id. at pp. 570–571.)

The law is well established that an “appellant has the burden on appeal of showing that an instructional error was prejudicial and resulted in a miscarriage of justice. [Citations.]” (American Master Lease LLC v. Idanta Partners, Ltd. (2014) 225 Cal.App.4th 1451, 1485 (American Master Lease LLC.) Stated differently, an appellant has a “duty to tender a proper prejudice argument.” (Paterno v. State of California (1999) 74 Cal.App.4th 68, 106.)

b. Exclusion of evidence

As with instructional error, a judgment may not be reversed in a civil case based on the “the improper . . . rejection of evidence, . . . unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.” (Cal. Const., art. VI, § 13; Evid. Code § 354 [“A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous exclusion of evidence unless the court which passes upon the effect of the error or errors is of the opinion that the error or errors complained of resulted in a miscarriage of justice . . .”].)

The law is also clear and well established that, to obtain the reversal of a judgment for evidentiary error, “it is the burden of appellants to show that it is reasonably probable that they would have received a more favorable result at trial had the error not occurred.” (Meeks v. AutoZone, Inc. (2018) 24 Cal.App.5th 855, 877; see, e.g., IIG Wireless, Inc. v. Yi (2018) 22 Cal.App.5th 630, 655 [rejecting evidentiary claim because appellant “offers no argument that the erroneous admission of this evidence was so prejudicial that reversal is required”]; Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 282 [rejecting claim that trial court committed reversible error in excluding evidence because appellants “fail to demonstrate how any claim of error in the trial court’s exclusion of evidence would have made any difference in the outcome”].)

4. Public Authority has not established that the trial court committed any reversible error

Public Authority’s opening brief on appeal does not contain a developed prejudice argument with respect to either asserted error. Its claims of instructional and evidentiary error fail for this reason alone. (See pt. III.C.3.a–b, ante [appellant must demonstrate prejudice with respect to claims of instructional or evidentiary error].) Further Public Authority acknowledges that each “plaintiff testified that she performed household chores greater than 20% of the time for every week that she worked.” (Italics added.) Public Authority also fails to point to any contrary evidence from which we could conclude that there was a reasonable probability that the jury might have reached a more favorable verdict to Public Authority but for the asserted errors.

In addition, with respect to the asserted instructional error, the one Soule factor for determining prejudice that Public Authority addresses in its opening brief supports the conclusion that any instructional error was harmless rather than prejudicial. During his closing argument, plaintiffs’ counsel argued as follows:

“[The plaintiffs’ are] not entitled to receive overtime if the defendant has proved plainly and unmistakably that the plaintiff was exempt during that workweek. What does it mean by “prove plainly and unmistakably”? The burden of proof in this case is to prove something more likely than not, but the facts that they have to prove would have to make it plain and unmistakable and they would have to prove that for each workweek that they worked overtime.” (Italics added.)

Plaintiffs’ counsel thus expressly reiterated to the jury that the requisite burden of proof was “more likely than not,” contrary to Public Authority’s contention that the instruction was erroneous because it “indicated a higher, more stringent, burden of proof.” We therefore disagree with Public Authority’s suggestion that “[plaintiffs’] argument to the jury may have contributed to the instruction’s misleading effect.” (Soule, supra, 8 Cal.4th at p. 570.) Further, since Public Authority makes no argument that the asserted instructional error was prejudicial in light of the other Soule factors, it clearly has not carried its “burden on appeal of showing that an instructional error was prejudicial and resulted in a miscarriage of justice.” (American Master Lease LLC, supra, 225 Cal.App.4th at p. 1485.)

With respect to the trial court’s purported error in excluding evidence pertaining to the number of hours that DSS regulations authorized for “domestic services,” Public Authority asserts that this exclusion was “prejudicial because it prevented . . . Public Authority from establishing evidence showing the maximum IHSS authorized hours for domestic services could not exceed the percentages required for the ‘personal attendant’ exemption from overtime.” However, Public Authority has not demonstrated that such “domestic services” are in fact, as Public Authority suggests in its reply brief, “household tasks that would fall outside the definition of a personal attendant.” Public Authority also fails to demonstrate that it is reasonably probable that it would have received a more favorable result at trial if the trial court had permitted the introduction of evidence pertaining to the DSS regulation in light of fact that Public Authority did not present any evidence with respect to the hours that plaintiffs’ actually worked, and plaintiffs’ testimony supported the jury’s findings that Public Authority failed to carry its burden of proving the applicability of the exemption.

Accordingly, we conclude that Public Authority has not established that the trial court committed any reversible error with respect to its instructions or evidentiary rulings concerning the personal attendant exemption.

D. The trial court did not err in instructing the jury with respect to the individual plaintiffs’ claims for expense reimbursements under Labor Code section 2802

Public Authority raises several claims related to the trial court’s jury instructions with respect to the individual plaintiffs’ claims for expense reimbursements under Labor Code section 2802.

Public Authority contends that the trial court erred in instructing the jury that Public Authority was plaintiffs’ employer for purposes of their claim for expense reimbursements under Labor Code section 2802. This claim is without merit because, as we concluded in part III.B, ante, Public Authority fails to demonstrate that the trial court erred in concluding that Woodruff I established as a matter of law of the case that Public Authority was the plaintiffs’ employer for purposes of plaintiffs’ claim for expense reimbursements.

Public Authority also argues that plaintiffs’ Labor Code section 2802 claims are not legally viable because “[if] [the Legislature] had intended that providers be reimbursed for mileage, it would have expressly provided [for] this reimbursement in the Welfare and Institutions Code.” As noted in part III.B.2, ante, the Woodruff I court held that plaintiffs could state a claim for Labor Code section 2802 expense reimbursements (Woodruff I, supra, D062180, slip opn. at pp. 23–27). In reaching this conclusion, the

 

Woodruff I court considered Public Authority’s contention that “[Plaintiffs] are not entitled to compensation for the expenses at issue because the more specific IHSS statutes [i.e., statutes contained in the Welfare and Institutions Code] do not provide for reimbursement of work-related expenses.” (Id. at p. 25.) Public Authority fails to provide any argument as to why these conclusions are not law of the case. (See Morales, supra, 25 Cal.App.5th at p. 98.) Accordingly, Public Authority is not entitled to reversal on this ground.

Finally, Public Authority contends that the trial court’s jury instructions with respect to the claims for expense reimbursements “had the effect of precluding the jury from considering whether plaintiffs voluntarily offered the use of their cars . . . . ” (Citing O’Brien v. L. E. White Lumber Co. (1919) 43 Cal.App. 703, 706–707 (O’Brien).) In O’Brien, the Court of Appeal concluded that there was a lack of substantial evidence to support a jury’s award in favor of a plaintiff against his former employer for the “use of his automobile in the service of the defendant.” (O’Brien, supra, 43 Cal.App. at p. 704.) The O’Brien court reasoned that it was “abundantly clear from the evidence that the use of [plaintiff’s] automobile in the defendant’s business was made by [plaintiff] without any intention of making a charge therefor other than the value of the supplies which he drew from the defendant, and was therefore gratuitously given except to the extent it might be compensated by the value of such supplies.” (Id. at pp. 706–707.)

It is clear that Public Authority is not entitled to reversal on this ground. To begin with, the O’Brien court reversed a common law claim for reimbursement because there was no evidence that the plaintiff intended to seek reimbursement for the use of his automobile, and the O’Brien court concluded that the plaintiff “gratuitously” provided such use to the defendant employer. (O’Brien, supra, 43 Cal.App. at p. 707.) In this case, plaintiffs made a statutory claim for reimbursement under Labor Code section

 

2802, a claim that does not require proof of the plaintiffs’ state of mind with respect to their intent to seek reimbursement. Moreover, O’Brien predates the enactment of Labor Code sections 2802 and 2804, the latter of which invalidates any agreement made by an employee to waive the employee’s right to expense reimbursement under Labor Code section 2802. Since an employee may not waive his or her right to reimbursement under Labor Code section 2802, we have serious questions about whether evidence demonstrating that a plaintiff acted “gratuitously” (O’Brien, supra, 43 Cal.App. at p. 707) in incurring a business expense is relevant in a case in which the plaintiff proves the statutory elements of his or her Labor Code section 2802 claim for reimbursement.

However, even assuming, strictly for purposes of this opinion, that Public Authority is correct that evidence that the plaintiffs “voluntarily offered the use of their cars,” was relevant to the jury’s determination of plaintiffs’ Labor Code section 2802 claim, there is no evidence in the record that Public Authority objected to the trial court’s expense reimbursement instructions on this ground in the trial court or that Public Authority requested an instruction on the effect of the plaintiffs’ purported “voluntar[y] us[e] [of] their cars.” Nor has Public Authority established that the jury instructions that the trial court gave (see fn. 41, ante), which track the language of the relevant statutes (Labor Code sections 2802 and 2804), and which required the plaintiffs’ to prove that the expenses incurred were “both reasonable and necessary,” were legally incorrect.

Accordingly, we conclude that the trial court did not err in instructing the jury with respect to the individual plaintiffs’ claims for expense reimbursement under Labor Code section 2802.

IV.

DISPOSITION

The judgment is affirmed. Public Authority is to bear costs on appeal.

AARON, J.

WE CONCUR:

HALLER, Acting P. J.

IRION, J.