Ahmed v. Good Nite Management Inc.

Full title: KAZI AHMED, Plaintiff and Respondent, v. GOOD NITE MANAGEMENT, INC. et…

Court: California Court of Appeals, First District, Second Division

Date published: Mar 19, 2009

No. A120400 (Cal. Ct. App. Mar. 19, 2009)

Opinion

KAZI AHMED, Plaintiff and Respondent, v. GOOD NITE MANAGEMENT, INC. et al., Defendants and Appellants. A120400 California Court of Appeal, First District, Second Division March 19, 2009

NOT TO BE PUBLISHED

San Mateo County Super. Ct. No. CIV458013

Lambden, J.

Good Nite Inn Management, Inc. and Good Nite Inn, Redwood Inc. (collectively, the Good Nite Inns) employed Kazi Ahmed for about 12 years; Ahmed worked as the business manager at Good Nite Inn in Redwood City (the Redwood hotel). After the Good Nite Inns terminated Ahmed’s employment, he sued them for compensation for overtime and missed meal periods. Ahmed alleged that he was not an exempt employee and that he was entitled to the unpaid wages; he also asserted that the Good Nite Inns violated the Unfair Competition Law (UCL), Business and Professions Code section 17200 et seq. The matter proceeded to a bench trial, and the court ruled that Ahmed was not an exempt employee and therefore the Good Nite Inns owed him for overtime and missed meal periods. It also found that the failure to pay overtime wages violated the UCL. The court awarded Ahmed $293,999.55. It also ordered the Good Nite Inns to pay Ahmed attorney fees in the amount of $236,760.

The Good Nite Inns appeal from the judgment and make various challenges to the lower court’s finding that Ahmed was not an exempt employee. They also claim that Ahmed was not entitled to restitution under the UCL. Additionally, the Good Nite Inns contest the court’s award of attorney fees. We are not persuaded by their arguments and affirm the judgment.

BACKGROUND

The Good Nite Inns operate 12 economy class hotels throughout California. They employed Ahmed as the business manager¹ at the Redwood hotel for about 12 years. The business manager is the highest ranking employee at each hotel. The Redwood hotel had about 126 guest rooms.

1 Before 2004, this position was called general manager.

The Good Nite Inns paid Ahmed a fixed salary. He earned $39,014 in 2002; $39,720 in 2003; $40,866 in 2004; $41,870 in 2005; and $34,903 for nine months in 2006. He was eligible for benefits not available to hourly employees, including a base salary; a monthly bonus based on gross operating profit; quarterly bonuses; cash awards; free dental, disability and life insurance; sick leave; and the right to live on the premises without paying rent.

Ahmed’s last day of employment at the Redwood hotel was September 29, 2006. On this same date, September 29, Ahmed filed a complaint against the Good Nite Inns.² On June 15, 2007, Ahmed filed a third amended complaint. In this pleading, he asserted that his duties did not qualify him for any exemption from overtime because he had spent most of his time performing non-exempt tasks. He maintained that in June of 2006 he asked to be compensated for his overtime and that his employer then placed him on probation for 90 days. He further stated that 60 days later his employer told him that he was not satisfactorily performing and that he should resign. Ahmed claimed that on September 8, 2006, the Good Nite Inns advised him “that his performance continued unsatisfactory and that he must either relocate to another property over 100 miles from his family or resign.”

2 Ahmed filed a first amended complaint on October 6, 2006.

Ahmed’s third amended complaint set forth six causes of action. The first cause of action alleged that the Good Nite Inns’ failure to pay him overtime violated Labor Code sections 558, 1194, and 1198. In his second cause of action, he asserted that the Good Nite Inns’ failure to pay him his earned bonus violated Labor Code section 204. He claimed retaliation in his third cause of action. His fourth cause of action alleged that the Good Nite Inns failed to provide him with meal and rest breaks in violation of Labor Code section 226.7. He claimed waiting time penalties and restitution under Labor Code section 203 in his fifth cause of action. Finally, he asserted a violation of the UCL (Bus. & Prof. Code, § 17200 et seq.) in his sixth cause of action. Subsequently, on September 17, 2007, Ahmed dismissed his retaliation claim.

The matter proceeded to a bench trial, which took place between September 25 and October 1, 2007. The evidence at trial established that the Good Nite Inns’ vice-president, Michael Jackson, was the direct supervisor of the business managers; he visited each of the 12 hotels once per quarter. While at the Redwood hotel, he was with Ahmed 99 percent of the time; he never saw Ahmed cleaning rooms or doing any maintenance. He did not know that Ahmed was shampooing carpets, and expected him to be doing managerial type work. Jackson commented that all of the hotels had staffing problems and that it was Ahmed’s responsibility to hire people to staff housekeeping and the front desk. He testified that he believed the Redwood hotel had a staffing problem that “probably started in 2006.”

In addition to the business manager, each hotel typically employed one desk clerk per eight-hour shift; one head housekeeper who was in charge of eight to ten other housekeepers, and, at times, a maintenance employee. As part of his duties as business manager, Ahmed supervised all of the other employees at the Redwood hotel.

Ahmed delegated most of his supervisory tasks to his head housekeeper and his lead desk clerk. Prior to providing overtime compensation to any employee, Ahmed had to receive corporate authorization. Ahmed spent time recruiting and interviewing prospective employees for the Redwood hotel, and corporate headquarters gave his recommendations serious consideration. Corporate headquarters vetoed his recommendations only when it discovered legal impediments to hiring, such as immigration status.

The Good Nite Inns authorized Ahmed to adjust the rates at the Redwood hotel within a range already approved by the corporate office. The business managers received pre-set guidelines for moving within three already approved rates. Ahmed did have independent authority regarding customer relations, such as deciding whether to discount a room when a customer lodged a complaint.

Ahmed did not have the authority to select vendors for the Redwood hotel. The corporate office selected and purchased all supplies. The Good Nite Inns also directed Ahmed as to all aspects of the operation of the Redwood hotel, including the arrangement of amenities in the room and the use of an air freshener in the room. Ahmed had the authority to spend up to $300 at one time without corporate authorization.

Ahmed testified that, Monday through Friday, he typically worked 13 hours; Saturday, he generally worked three and one-half hours; and Sunday, he usually worked two hours. His normal day included assisting at the front desk, greeting customers, resolving customer complaints, assisting housekeeping, performing maintenance work, making and following up on sales calls, completing various clerical tasks, responding to e-mail inquiries, and preparing reports related to the operation of the property.

In the spring of 2006, staffing shortages became acute, according to Ahmed. He testified that he typically worked 16 hours a day on Monday and Tuesday. He asserted that he never took meal breaks; instead, he worked while he ate. The Good Nite Inns never paid him overtime wages or for missed meal periods. He did tasks such as shampooing carpets and admitted that such tasks were not part of his job description. He explained that he did what was needed when the Redwood hotel was short-staffed. He acknowledged that he never asked a corporate official for permission to hire a service to shampoo carpets.

Jesse Ruvalcaba, the business manager for one of the Good Nite Inns’ hotels in Camarillo, testified that a typical day for a business manager was divided between monitoring the housekeeping and maintenance personnel and promoting the business. Ruvalcaba visited the Redwood hotel four or five times and Ahmed was always dressed in a suit; Ruvalcaba never observed Ahmed doing cleaning or maintenance work.

Philip Ho, the Good Nite Inns’ president, testified that the company expected Ahmed to spend most of his time on business development and less time on maintaining and staffing the property. He stated that the staffing at the Redwood hotel’s front desk for 2005 was close to what had been budgeted. He mentioned that it did not make sense for Ahmed to clean the carpet himself because his salary was too high for this type of work. The Good Nite Inns’ increased emphasis on business development for the business manager was implemented, according to Ho, in late June 2004. Ho acknowledged that Ahmed won an award for being the second best business manager in the company in December 2005. In June 2006, the Good Nite Inns placed Ahmed on a 90-day probation for failing to use his time appropriately. In August 2006, Ho wrote a personal letter to Ahmed questioning his commitment to the Good Nite Inns’ business model.

The Good Nite Inns’ director of human resources, Almut Fleck, testified that she made the decision that Ahmed was an exempt employee. She stated that she made the decision without consulting Ahmed or his supervisor.

The job description for business manager stated that the business manager was responsible for all aspects of hotel operations, including the following: hiring and firing all employees; scheduling, supervising, evaluating, disciplining, and directing the actions of all employees; promoting business; maximizing room revenue; and enforcing company policies and procedures. Ahmed did not work in accordance with his job description, and the Good Nite Inns did not monitor his actual work to discover the discrepancy until several months prior to his separation from the company. Because the Good Nite Inns classified Ahmed as an exempt employee, they kept no records of his time.

After hearing all of the evidence and arguments, the court issued a tentative decision in favor of Ahmed on October 1, 2007. The court issued its final statement of decision on November 20, 2007. It found that Ahmed spent 52 hours a week on non-exempt duties, and 18.5 hours a week on exempt duties. It determined that Ahmed was not an exempt employee and awarded him $293,999.55 in overtime wages, meal period payments, and prejudgment interest. It also awarded Ahmed statutory attorney fees and costs, but denied his request for punitive damages. It entered judgment on November 20, 2007.

The Good Nite Inns filed a timely notice of appeal.

Subsequently, on March 11, 2008, the court awarded Ahmed attorney fees in the amount of $236,760.

DISCUSSION

At trial, Ahmed claimed that he worked more than eight hours per day and more than forty hours per week and that the Good Nite Inns never paid him overtime wages. He also declared that he usually worked more than five hours per day without regularly being able to take meal periods and without being paid any compensation for missed meal periods. The Good Nite Inns did not dispute that they never paid Ahmed overtime or for missed meal periods, but they argued that Ahmed was an exempt employee and therefore not entitled to this pay.

On appeal, the Good Nite Inns challenge the lower court’s findings that Ahmed was an exempt employee and entitled to pay for overtime and missed meal periods. They also argue that the lower court should not have awarded Ahmed restitution under the UCL. Additionally, they contest the lower court’s award of attorney fees. We consider each of these contentions.

I. Award of Pay for Overtime and for Missed Meal Periods

A. Relevant Law and Standard of Review

Labor Code section 510, subdivision (a) provides: “Eight hours of labor constitutes a day’s work. Any work in excess of eight hours in one workday and any work in excess of 40 hours in any one workweek and the first eight hours worked on the seventh day of work in any one workweek shall be compensated at the rate of no less than one and one-half times the regular rate of pay for an employee. Any work in excess of 12 hours in one day shall be compensated at the rate of no less than twice the regular rate of pay for an employee. In addition, any work in excess of eight hours on any seventh day of a workweek shall be compensated at the rate of no less than twice the regular rate of pay of an employee. . . .”

Labor Code sections 226.7 and 512 mandate that non-exempt employees receive a 30-minute meal break for every five hours worked. An employer who fails to provide such a break shall pay the employee one additional hour of pay. (Lab. Code, § 226.7, subd. (b).)

The California Industrial Welfare Commission (IWC) is the “state agency empowered to formulate regulations (known as wage orders) governing minimum wages, maximum hours, and overtime pay in the State of California.” (Ramirez v. Yosemite Water Co., Inc. (1999) 20 Cal.4th 785, 795 (Ramirez).) Pursuant to Labor Code section 515, subdivision (a), the IWC may establish exemptions from the payment of overtime for executive, administrative, and professional employees “provided that the employee is primarily engaged in the duties that meet the test of the exemption, customarily and regularly exercises discretion and independent judgment in performing those duties, and earns a monthly salary equivalent to no less than two times the state minimum wage for full-time employment. . . .” The Good Nite Inns contend that Ahmed was an exempt employee under either the executive or administrative exemption.

“[E]xemptions from statutory mandatory overtime provisions are narrowly construed.” (Ramirez, supra, 20 Cal.4th at p. 794.) Moreover, “the assertion of an exemption from the overtime laws is considered to be an affirmative defense, and therefore the employer bears the burden of proving the employee’s exemption.” (Id. at pp. 794-795.)

The question of whether an exemption exists is a mixed question of law and fact. (Ramirez, supra, 20 Cal.App.4th at p. 794.) To the extent we review the construction or interpretation of the statute, we review the lower court’s ruling de novo. To the extent that the Good Nite Inns are challenging the lower court’s findings, we use the substantial evidence standard of review. Under this standard, “ ‘ “the power of an appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted,” to support the findings below. [Citation.] We must therefore view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor in accordance with the standard of review so long adhered to by this court.’ [Citation.] ‘The substantial evidence standard applies to both express and implied findings of fact made by the superior court in its statement of decision rendered after a nonjury trial. [Citations.]’ ” (Escamilla v. Department of Corrections & Rehabilitation (2006) 141 Cal.App.4th 498, 514 (Escamilla).)

“ ‘Substantial evidence’ is evidence of ponderable legal significance, evidence that is reasonable, credible and of solid value. [Citations.] ‘Substantial evidence . . . is not synonymous with “any” evidence.’ . . . [Citations.] The focus is on the quality, rather than the quantity, of the evidence.” (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651.) “ ‘It is not our task to weigh conflicts and disputes in the evidence; that is the province of the trier of fact. . . . [W]e do not evaluate the credibility of the witnesses or otherwise reweigh the evidence. [Citation.] Rather, ‘we defer to the trier of fact on issues of credibility. [Citation.]’ ” (Escamilla, supra, 141 Cal.App.4th at pp. 514-515.) Indeed, “testimony of a witness offered in support of a judgment may not be rejected on appeal unless it is physically impossible or inherently improbable and such inherent improbability plainly appears.” (Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1204.) When the record as a whole shows a reasonable trier of fact could have found in favor of the respondent, we must affirm. (Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1633.)

B. Finding that a Manager is Non-Exempt

In their reply brief, the Good Nite Inns argue that the overtime laws are inapplicable to a managerial employee and that no case has held that overtime laws “apply to a managerial employee who created his own schedule, and independently determined what time and tasks he would perform.” In support of this assertion, they cite Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094. The court in Murphy stated that a secondary purpose of the overtime laws is to shape employees conduct. (Id. at p. 1109.) The Good Nite Inns claim that this secondary purpose has no application to Ahmed, a manager who scheduled his own hours. Thus, they appear to be arguing that the overtime laws will not “shape” his conduct because he schedules his own hours. As we discuss below, Ahmed could schedule his own hours but he had to keep his budget within the amount determined by the corporate office. Thus, it is a factual question whether he felt “compelled” to work long hours to meet the budget demands of the corporate office. Further, the principal purpose of the overtime law is to compensate employees for their time (ibid.), and this purpose applies to any non-exempt employee––no matter what the job title.

The Good Nite Inns are essentially arguing that Ahmed was an exempt employee as a matter of law. Their assertion that overtime laws can never apply to employees classified as managers is simply incorrect. The title or description of a job created by the employer is not dispositive. (See Ramirez, supra, 20 Cal.4th at p. 802.) As our Supreme Court cautions, “[I]f hours worked [on exempt activities] were determined through an employer’s job description, then the employer could make an employee exempt from overtime laws solely by fashioning an idealized job description that had little basis in reality.” (Ibid.) As discussed more fully below, the trial court did consider the employer’s job description, but balanced this evidence by the evidence of Ahmed’s actual work activities.

In determining whether an employee is exempt, courts have looked at the employee’s actual job duties. Indeed, our Supreme Court permitted operating managers and assistant managers at drug stores to sue as a class for overtime wages. (Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319.) Thus, the question of whether Ahmed is an exempt or non-exempt employee does not depend exclusively on his job title or on the fact that he could set his own schedule, but on an examination of all his actual job duties.

C. The Executive Exemption

The IWC has promulgated Wage Order No. 5-2001, which governs overtime pay requirements in the public housekeeping industry. (Lab. Code, § 515, subd. (a); Cal. Code Regs., tit. 8, § 11050, subd. 2(P)(1).) Wage Order 5-2001 sets forth the criteria for determining whether an employee is employed in an executive capacity and is therefore exempt from overtime pay requirements. It provides that an exempt executive employee is one: “(a) Whose duties and responsibilities involve the management of the enterprise in which he/she is employed or of a customarily recognized department or subdivision thereof; and [¶] (b) Who customarily and regularly directs the work of two or more other employees therein; and [¶] (c) Who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring or firing and as to the advancement and promotion or any other change of status of other employees will be given particular weight; and [¶] (d) Who customarily and regularly exercises discretion and independent judgment; and [¶] (e) Who is primarily engaged in duties which meet the test of the exemption. The activities constituting exempt work and non-exempt work shall be construed in the same manner as such items are construed in the following regulations under the Fair Labor Standards Act effective as of the date of this order: 29 C.F.R. Sections 541.102, 541.104-111, and 541.115-116. Exempt work shall include, for example, all work that is directly and closely related to exempt work and work which is properly viewed as a means for carrying out exempt functions. The work actually performed by the employee during the course of the workweek must, first and foremost, be examined and the amount of time the employee spends on such work, together with the employer’s realistic expectations and the realistic requirements of the job, shall be considered in determining whether the employee satisfies this requirement. [¶] (f) Such an employee must also earn a monthly salary equivalent to no less than two (2) times the state minimum wage for full-time employment. Full-time employment is defined in Labor Code Section 515[, subdivision] (c) as 40 hours per week.” (Cal. Code Regs. tit. 8, § 11050, subd. (1)(B)(1)(a)-(f).)

Here, the trial court found that Ahmed met the first four elements of the exemption, but ruled that the Good Nite Inns did not carry their burden of proof as to the final element. The court concluded that Ahmed did not primarily engage in exempt duties. Rather, the court determined that Ahmed usually spent his time on the following non-exempt activities: Thirty hours a week assisting at the front desk; five hours a week carrying linens to the laundry and cleaning rooms; five hours a week collecting trash; five hours a week cleaning the carpet; five hours a week doing maintenance work; and two hours a week making bank deposits. With regard to exempt activities, the court decided that Ahmed spent his time at work doing the following: One-half hour a week meeting with the night auditor; two hours a week doing an Internet survey regarding rates offered by competitors and determining the rates to be offered for the hotel; three hours a week forecasting; one hour a week on a corporate conference call; one hour a week recruiting or hiring; one hour a week doing marketing or sales; five hours a week phoning or e-mailing corporate headquarters; and five hours a week inspecting the clean rooms and the grounds.

The trial court determined that Ahmed spent 52 hours a week on non-exempt duties and 18.5 hours a week on exempt duties. It therefore found that Ahmed spent no more than one-third of his time on exempt duties. Since each element of the executive exemption had to be satisfied (Bell v. Farmers Ins. Exchange (2001) 87 Cal.App.4th 805, 828-829), the trial court ruled that the Good Nite Inns had not met their burden of proof to establish that Ahmed was an exempt executive employee.

The Good Nite Inns contend that the lower court failed to consider “the employer’s realistic expectations” or the “realistic requirements of the job” as required by Wage Order No. 5-2001.³ Further, they maintain that the court gave too much weight to Ahmed’s trial testimony, which they complain was contradicted by his deposition and other evidence.

3 Other than complain that the lower court should not have believed Ahmed’s testimony, the Good Nite Inns do not challenge the trial court’s findings regarding the amount of time Ahmed spent on exempt and non-exempt activities. The Good Nite Inns have waived any challenge not specifically set forth in their briefs in this court. “ ‘[E]very brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration. [Citations.]’ [Citations.] This principle is especially true when an appellant makes a general assertion, unsupported by specific argument, regarding insufficiency of evidence. [Citation.]” (People v. Stanley (1995) 10 Cal.4th 764, 793; see also Berger v. Godden (1985) 163 Cal.App.3d 1113, 1119.) Moreover, the record supported the findings on how Ahmed spent his time because, as the lower court pointed out, the Good Nite Inns did not keep any data on Ahmed’s actual activities and therefore the only evidence on Ahmed’s daily activities was the testimony of Ahmed and his wife.

The Good Nite Inns charge that the lower court gave “no consideration or weight to the employer’s realistic expectations of the job.” They then cite to evidence in the record showing that the realistic expectations of the Good Nite Inns were that Ahmed engaged in exempt activities. Thus, for example, Ho testified as follows when asked why the job title was changed from general manager to business manager: “It has to do with the business model or the concept of management that we have adopted at one time and to––or to ask for additional job responsibilities. And in the past, we used to call them general managers. And I think the responsibilities were such that it was really a property manager with the emphasis on operation of the property. [¶] And, so, when we changed the business model to business manager title to reflect the duties and responsibilities we wanted the managers to have. And by being a business manager, they [sic]are responsible from the top line, meaning the revenue, to the bottom line, meaning the profit or loss for each property.”

The record does include testimony from Jackson and Ho that they believed Ahmed, as a business manager, had to exercise independent judgment and was responsible for the hotel’s profitability. However, the record does not indicate that the lower court ignored this evidence. The court was not required to consider this evidence as being more significant than the evidence of the actual day-to-day activities of Ahmed. Wage Order No. 5-2001 does not require the court to accept the employer’s description or expectations regarding the job, but merely requires the court to consider both the actual work performed as well as the employer’s realistic expectations. As discussed above, our Supreme Court cautions, “[I]f hours worked [on exempt activities] were determined through an employer’s job description, then the employer could make an employee exempt from overtime laws solely by fashioning an idealized job description that had little basis in reality.” (Ramirez, supra, 20 Cal.4th at p. 802.) However, “an employee who is supposed to be engaged in [exempt] activities during most of his working hours and falls below the 50 percent mark due to his own substandard performance should not thereby be able to evade a valid exemption.” (Ibid.) Here, however, there was no evidence until 2006 that the Good Nite Inns considered Ahmed’s performance to be substandard.

The Supreme Court in Ramirez explained that the trial court is to determine the “realistic requirements of the job.” (Ramirez, supra, 20 Cal.4th at p. 802.) “In so doing, the court should consider, first and foremost, how the employee actually spends his or her time. But the trial court should also consider whether the employee’s practice diverges from the employer’s realistic expectations, whether there was any concrete expression of employer displeasure over an employee’s substandard performance, and whether these expressions were themselves realistic given the actual overall requirements of the job.” (Ibid.)

Here, the trial court directly asked Jackson, who supervised Ahmed from 2002 until 2006, questions to determine his expectations and knowledge of Ahmed’s daily activities. When asked by the court whether it was his practice to let Ahmed and the other business managers meet their budget “the best way they knew how[,]” Jackson answered, “Yeah.” The court responded that Ahmed had testified “at length about his typical day including, . . ., cleaning carpets, carrying linens and staffing the front desk for, . . . up to six hours a day.” The court asked Jackson whether he was aware that Ahmed was engaged in these activities and that there was a shortage of staff on the front desk. Jackson responded that he was aware that Ahmed was helping at the desk, but he did not know the hours Ahmed was working at the desk. Jackson explained that he was not aware that Ahmed was helping out at the front desk all day long. Jackson disclosed that he never asked Ahmed to provide his typical daily schedule to him. Further, Jackson admitted that he was not aware that Ahmed was carrying linens on a daily basis or that he was shampooing carpets.

Elsewhere during the trial, the court made it clear that it was not simply relying on Ahmed’s job description when determining whether Ahmed was or was not an exempt employee. When counsel for Ahmed began her closing argument, the court interrupted and explained: “Clearly, I’m not going to decide this case based on the job description. It’s an important document, but I am not deciding it based on the job description. But I also have to look at whether what Ahmed testified he was doing for 13 hours every day met the realistic expectations of his employer.”

The court further explained: “I went through the evidence, and I tried to do what I’m directed to do by the Court of Appeal and the Supreme Court, and that is to do a quantitative analysis. And I’m looking at how Ahmed testified he spends his day, and the Supreme Court urges that that is the best evidence. And I gleaned, as best I could from the evidence, everything that Ahmed said he was doing during the day. [¶] And then, because there really wasn’t any evidence from the defendants to counter Ahmed’s testimony about how he spent his day, the minute-to-minute, hour-to-hour, I then looked at the testimony presented by the defendants on what they expected Ahmed to be doing, the job description only being backdrop to that consideration.”

Later, the court again showed that it was concerned with the Good Nite Inns’ realistic expectations and whether they were communicated to Ahmed. The court stated: “[E]ven if I were to find that at the corporate level, [the] Good Nite Inns’ realistic requirements of the job were primarily exempt. The only evidence I found in the record was that in June of 2006, that the Good Nite Inn[s] expressly stated [their] displeasure with the lack of attention to what might be exempt activities. [¶] I don’t see that anywhere else. I see in the 2005 evaluation dated May 2005 that Ahmed’s work was good enough to be a contender for manager of the year. And so, clearly, there was no displeasure voiced overall and, clearly, not specifically voiced about these activities. . . .”

The court continued: “So I’m concerned about this test in Ramirez that seems to be two parts for the employer, a realistic requirement of the job and an expression of displeasure over the employee’s substandard performance. Not that he did a bad job in marketing, but that his substandard performance was that he didn’t devote enough time to those activities because he was cleaning carpets and cleaning toilets. . . .”

Again, during closing argument by the attorney for the Good Nite Inns, the court’s comments underscored its concern regarding the Good Nite Inns’ realistic expectations. The court commented: “When I look at Ramirez––and I think this is the key in––Ramirez––I am looking at the Good Nite Inns’ realistic expectation. But I think that what the Supreme Court is telling me to do is to look at whether there was any concrete expression of the employer’s displeasure over an employee’s substandard performance, and whether these expressions were themselves realistic, given the actual overall requirements of the job. [¶] I am concerned that Ms. Fleck and Mr. Jackson didn’t make it their business to learn about this. Because I have no reason to believe that Ahmed ever would have lied to a direct question by Mr. Jackson on these issues. But Mr. Jackson testified today that he delegated to his general managers the job of running the business and meeting a budget.” The court explained: “[I]f to meet the budget, Ahmed had to clean the carpets, carry the linens and empty the trash cans, the employer should not be able to walk away from that.”

The court further elaborated on the test it was using: “The first step is to make sure that the job description is not idealized. The second step is to take the realistic requirements of the job. But I think those are balanced against a burden on the employer to know what their employees are doing to get the job done. And in the situation such as this one where the employer did not know, who bears the burden? [¶] And I think under the statute, it may well be that the employer bears the burden. Because it’s a quantum meruit discussion. It’s an unjust enrichment concept, frankly. The employer was benefited by the customer relation that Ahmed built, by the cleanliness that he promotes by emptying the trash cans, by the timeliness of rooms being cleaned because Ahmed was cleaning bathrooms. Frankly, if I was his boss and I knew it, I would have fired him years ago. [¶] . . . [¶] But he wasn’t performing the job that his boss wanted him to. But it was in 2006 when the company caught on.”

When determining the realistic requirements of the job, the trial court properly considered the actual activities of Ahmed. The court explained that this was a budget hotel and it had a small staff, but Ahmed was determined to give his clients more personal attention and to make sure the guests did not stand in line at the desk and were greeted. The Good Nite Inns complain that the court “erred by finding that plaintiff sustained his burden of proving that he performed uncompensated work when this ‘evidence’ consisted solely of plaintiff’s unsubstantiated testimony that was contradicted by his deposition and other evidence.” However, the Good Nite Inns fail to cite any other contrary evidence regarding Ahmed’s actual daily activities. Further, it is for the lower court to make credibility decisions. (See, e.g., Lenk v. Total-Western, Inc. (2001) 89 Cal.App.4th 959, 968.) Here, the court repeatedly stated that it “believe[d Ahmed’s] testimony that he did that work. . . . [T]here was no evidence to suggest that his testimony wasn’t truthful, and it appeared credible to the court.” The court found Ahmed “to be credible in his testimony.” The court explained that it disregarded that testimony, which conflicted with Ahmed’s deposition testimony, but it found his rendition of his work believable.

Both Ahmed and his wife testified about his working at the front desk. They also testified about his work assisting housekeeping functions and performing general maintenance functions. The evidence showed that Ahmed had to perform this work because of the small staff.

The record establishes that the lower court gave great consideration to the question of the “realistic requirements of the job.” (Ramirez, supra, 20 Cal.4th at p. 802.) It considered Ahmed’s testimony about what he did. Contrary to the Good Nite Inns’ argument, the court did consider the undisputed evidence in the record that the Good Nite Inns expected Ahmed to perform exempt activities and that the job description was for an exempt job. However, as the Ramirez court directs, the trial court did not simply accept the Good Nite Inns’ job description and expectations as constituting the realistic requirements of the job. The trial court properly considered whether the Good Nite Inns had made any attempt to discover whether Ahmed’s actual activities diverged from the idealized job description. Indeed, Jackson testified that the Good Nite Inns were not concerned with the actual daily activities of the business manager as long as they were within their budget. Further, Jackson did not know what activities Ahmed was performing.

The Supreme Court in Ramirez instructs the trial court to do a balancing test and to consider how the employee actually spends his or her time and to consider, when the actual activities diverge from the employer’s realistic expectations, “whether there was any concrete expression of employer displeasure over an employee’s substandard performance, and whether these expressions were themselves realistic given the actual overall requirements of the job.” (Ramirez, supra, 20 Cal.4th at p. 802.) Here, the trial court concluded that there was no communication of displeasure until 2006.

Accordingly, we conclude that the lower court properly considered the Ramirez factor of realistic requirements of the job, and substantial evidence in the record supported its finding that Good Nite Inns failed to prove that the executive exemption applied to Ahmed.

D. The Administrative Exemption

Wage Order 5-2001 sets forth the criteria for determining whether an employee is employed in an administrative capacity and is therefore exempt from overtime pay requirements. It provides that an exempt administrative employee is any employee: “(a) Whose duties and responsibilities involve either: [¶] (i) The performance of office or non-manual work directly related to management policies or general business operations of his/her employer or his/her employer’s customers; or [¶] (ii) The performance of functions in the administration of a school system, or educational establishment or institution, or of a department or subdivision thereof, in work directly related to the academic instruction or training carried on therein; and [¶] (b) Who customarily and regularly exercises discretion and independent judgment; and [¶] (c) Who regularly and directly assists a proprietor, or an employee employed in a bona fide executive or administrative capacity (as such terms are defined for purposes of this section); or [¶] (d) Who performs under only general supervision work along specialized or technical lines requiring special training, experience, or knowledge; or [¶] (e) Who executes under only general supervision special assignments and tasks; and [¶] (f) Who is primarily engaged in duties that meet the test of the exemption. The activities constituting exempt work and non-exempt work shall be construed in the same manner as such terms are construed in the following regulations under the Fair Labor Standards Act effective as of the date of this order: 29 C.F.R. Sections 541.201-205, 541.207-208, 541.210, and 541.215. Exempt work shall include, for example, all work that is directly and closely related to exempt work and work which is properly viewed as a means for carrying out exempt functions. The work actually performed by the employee during the course of the workweek must, first and foremost, be examined and the amount of time the employee spends on such work, together with the employer’s realistic expectations and the realistic requirements of the job, shall be considered in determining whether the employee satisfies this requirement; and [¶] (g) Such employee must also earn a monthly salary equivalent to no less than two (2) times the state minimum wage for full-time employment. Full-time employment is defined in Labor Code Section 515[, subdivision] (c) as 40 hours per week.” (Cal. Code Regs. tit. 8, § 11050, subd. (1)(B)(2).)

The employer has the burden of proof as to whether an employee meets an exemption. (Ramirez, supra, 20 Cal.4th at pp. 794-795.) Here, the trial court found that the Good Nite Inns failed to prove that Ahmed was “primarily engaged in duties where he regularly and directly assisted a bona fide executive or performed work under only general supervision that required special training. The evidence showed that [Ahmed] was directly involved in the delivery of the product that defendant sold: lodging, and was therefore not exempt.” The court further found that Ahmed “did not perform work related to the management policies of his employer; he carried out policies formulated by others. Finally, the evidence submitted at trial proved that only 18.5 of Ahmed’s weekly hours of work were devoted to exempt activities as defined under the Administrative Exemption and fully 52 hours a week were devoted to cleaning and desk clerking activities. Although [the Good Nite Inns] offered some evidence of specific tasks and projects that Ahmed worked on throughout his tenure with the company, [they were] not able to prove that [Ahmed] was primarily engaged in those activities such that he spent more than half of his time devoted to exempt activities.”

The Good Nite Inns argue that whether Ahmed was directly involved in the delivery of the product that they sold is not the proper test. They also contend that the finding that Ahmed did not perform work related to the management policies of the employer ignores the alternative prong of this test, which permits an employee to be administratively exempt if the work relates to general business operations.

We need not address the abovementioned contentions of the Good Nite Inns because the trial court also found that Ahmed was not exempt under subdivision (f). (Cal. Code Regs. Tit. 8, § 11050, subd. (1)(B)(2)(f).) The court found that Ahmed was not primarily engaged in duties that met the test of exemption. (See ibid.) In order to prevail, the Good Nite Inns had to present evidence to support this element as this element is preceded by “and[,]” and each requirement that is preceded by “and” must be satisfied.

In disputing the lower court’s finding that Ahmed was not primarily engaged in duties that met the test of exemption, the Good Nite Inns raise the exact same argument they mounted against the lower court’s finding that the executive exemption did not apply. The Good Nite Inns again argue that the lower court did not consider the employer’s realistic expectations and the realistic requirements of the job when assessing this requirement. As already discussed, we conclude that the lower court used the proper method set forth in Ramirez, supra, 20 Cal.4th at page 802when considering this factor and the record supported the lower court’s findings. Accordingly, we conclude that substantial evidence supported the lower court’s finding that the administrative exemption did not apply to Ahmed.

E. The Trial Court’s Finding Regarding the Compensation Owed Ahmed

1. Background

The trial court noted that, by law, the employer is obligated to keep accurate records of all hours worked, including overtime and meal periods. (Lab. Code, §§ 226, subd. (a), 1174, subd. (d); see also Cicairos v. Summit Logistics, Inc. (2005) 133 Cal.App.4th 949, 961.) The Good Nite Inns did not present any evidence as to the hours Ahmed actually worked or the hours worked that were unpaid. The court explained that Ahmed therefore only needed to “produce ‘sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference.’ (Hernandez v. Mendoza [(1988)] 199 Cal.App.3d 721, 727 [(Hernandez)]. . . .)”

The trial court found that Ahmed’s testimony regarding the number of hours he worked was credible and that the Good Nite Inns received the benefit of the hours he worked. Ahmed testified that he typically worked 13 hours a day during the business week and 3.5 hours on Saturday and 2 hours on Sunday.

The trial court found that Ahmed worked 339.5 overtime hours and 54 double time hours for 2002; 1332 overtime hours and 204 double time hours for 2003; 1272 overtime hours and 206 double time hours for 2004; 1326 overtime hours and 208 double time hours for 2005; and 965.5 overtime hours and 244 double time hours for 2006. Based on Ahmed’s salary for each year and prejudgment interest at the rate of 10 percent not compounded, the court awarded Ahmed the amount of $241,374.74 for the time which he worked and was not compensated.

The trial court also found that Ahmed did not take meal periods. It found that he missed 134 meal breaks in 2002; he missed 512 meal breaks in 2003; he missed 500 meal breaks in 2004; he missed 520 meal breaks in 2005; and he missed 406 meal breaks in 2006. Based on Ahmed’s regular rate of compensation, the court awarded him $41,666.52 in unpaid compensation, plus prejudgment interest of $8,424.73, for a total of $52,624.81.

2. Burden of Proof and the Court’s Findings

The Good Nite Inns contend that the trial court applied the wrong burden of proof and that the only evidence Ahmed produced was his uncorroborated testimony that was contradicted by his deposition and other evidence. The Good Nite Inns maintain that Ahmed’s testimony could establish the time he worked for them, but it could not establish the actual tasks he performed because his testimony was not corroborated. The Good Nite Inns then proceed to set forth the contradictions between Ahmed’s trial testimony and his deposition testimony.

The court in Hernandez, supra, 199 Cal.App.3d 721set forth the burden of proof as follows: “Although the employee has the burden of proving that he performed work for which he was not compensated, public policy prohibits making that burden an impossible hurdle for the employee. [Citation.] ‘[W]here the employer’s records are inaccurate or inadequate and the employee cannot offer convincing substitutes a . . . difficult problem arises. The solution, however, is not to penalize the employee by denying him any recovery on the ground that he is unable to prove the precise extent of uncompensated work. Such a result would place a premium on an employer’s failure to keep proper records in conformity with his statutory duty; it would allow the employer to keep the benefits of an employee’s labors without paying due compensation . . . . In such a situation we hold that an employee has carried out his burden if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference. The burden then shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negate the reasonableness of the inference to be drawn from the employee’s evidence. If the employer fails to produce such evidence, the court may then award damages to the employee, even though the result be only approximate.’ [Citations.]” (Id. at p. 727.)

Contrary to the Good Nite Inns’ assertion, nothing in the record establishes that the lower court used the incorrect standard of proof. The court noted that the Good Nite Inns had the burden of proving that Ahmed was exempt; it did not state that the Good Nite Inns had the burden of proving what Ahmed actually did on a daily basis. In any event, on review, we look to see if substantial evidence supported the lower court’s ruling. Here, the record amply supported the court’s findings on what Ahmed did on a daily basis.

As already noted, Ahmed testified that he typically worked 13 hours a day, Monday through Friday, three and one-half hours on Saturday, and two hours on Sunday. His typical day included assisting at the front desk, greeting customers, resolving customer complaints, assisting housekeeping, performing maintenance work, making occasional sales calls and following-up, doing various clerical tasks, responding to e-mail inquiries, and preparing reports related to the operation of the property. In the spring of 2006, staffing shortages became acute, according to Ahmed. He testified that he typically worked 16 hours a day on Monday and Tuesday. He stated that he never had meal breaks as he worked while he ate. He explained that he did what was needed when the Redwood hotel was short-staffed. Ahmed therefore was not working as a volunteer, but was doing the work necessary for the hotel to run smoothly given his skeletal staff.

To attack Ahmed’s testimony, the Good Nite Inns point to the following contradictions between Ahmed’s trial testimony and his deposition testimony: At trial, Ahmed testified that he delegated his forecasting duties to his wife, but he testified at his deposition that he did the forecasting himself; at trial, Ahmed said that once a week he looked at Internet sites such as Expedia to do his sales and marketing, but at his deposition he said that he looked at the Expedia site at least two times a week; and, at trial, Ahmed attempted to recant his deposition testimony where he denied hiring or training employees. Additionally, the Good Nite Inns question Ahmed’s credibility because, at trial, when testifying about his typical day, Ahmed neglected to state that he did activities such as occupancy forecasting, dealing with market managers, and having conference calls with other managers. Furthermore, in Ahmed’s written job applications, which he completed after losing his job at the Redwood hotel, he omitted the menial work he claimed to have done when describing his job at the Redwood hotel.

The Good Nite Inns are attempting to relitigate the issues already considered by the trial court. Indeed, the record makes it clear that the court seriously considered the law and evidence. At trial, the Good Nite Inns failed to present any evidence about Ahmed’s actual daily activities and the lower court made it clear that it disregarded the few instances where there was an inconsistency between Ahmed’s testimony at trial and his deposition testimony. The Good Nite Inns are attempting to have this court rule as a matter of law that none of Ahmed’s testimony was credible because of the abovementioned discrepancies.

The Good Nite Inns are asking us to reweigh the evidence and reassess the credibility of the witnesses, but that is not our role. Under the substantial evidence standard of review, we do not reweigh evidence or resolve evidentiary conflicts. (Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1053, superseded by statute on another issue.) Instead, under the applicable law, we view the evidence in the light most favorable to Ahmed, the prevailing party, and give that evidence the benefit of every reasonable inference (ibid.). Moreover, the testimony of one witness may constitute substantial evidence (In re Marriage of Mix (1975) 14 Cal.3d 604, 614), and the testimony of Ahmed was sufficient evidence to support the court’s finding that Ahmed did work for which he was not compensated.

The Good Nite Inns claim that the contradictory testimony of Ahmed is similar to the testimony of the plaintiff in Combs v. Skyriver Communications, Inc. (2008) 159 Cal.App.4th 1242 (Combs). In Combs, the trial court found that the plaintiff was an exempt employee, and the reviewing court affirmed the judgment. The Good Nite Inns stress that in Combs the plaintiff’s resume indicated that his job duties were the type that were exempt (id. at p. 1247). Similarly, here, the Good Nite Inns stress that Ahmed’s job applications did not include his non-exempt duties in his description of his work at the Redwood hotel.

Other facts in Combs, ignored by the Good Nite Inns, do not resemble the facts of the present case. At trial, the plaintiff in Combs acknowledged that his resume was accurate. (Combs, supra, 159 Cal.App.4th at p. 1247.) He testified that his “ ‘core’ ” responsibility was “ ‘maintaining the well-being of the network,’ and he spent 60 percent to 70 percent of his time carrying out that responsibility.” (Ibid.) The plaintiff called a number of witnesses who confirmed that the plaintiff’s resume was accurate. (Id. at pp. 1247-1248.) The plaintiff’s own testimony and the documentary exhibits also showed that the plaintiff was “responsible for maintaining, developing and improving [the employer’s] network, and his duties involved high-level problem solving and ‘troubleshooting’; preparing reports for [the employer’s] board of directors; capacity and expansion planning; planning to integrate acquired networks into [employer’s] network; lease negotiations; and equipment sourcing and purchasing.” (Id. at p. 1248.)

Here, the Good Nite Inns proved that Ahmed’s employment applications did not include the non-exempt tasks in his job description but, unlike the situation in Combs, they did not present any evidence indicating that Ahmed or any other witness believed his job applications accurately described his job duties. Moreover, as already stressed, the evidence presented at trial showed that Ahmed spent much of his time doing non-exempt activities.

Further, the Good Nite Inns completely ignore the posture of the case in Combs. In Combs, contrary to what happened in the present case, the court after a trial found that the plaintiff was exempt from overtime compensation under the administrative exemption. (Combs, supra, 159 Cal.App.4th at p. 1246.) Thus, the reviewing court simply determined that substantial evidence supported this finding. Similarly, here, our task is to consider whether substantial evidence supported the lower court’s findings that Ahmed was not exempt and its specific findings regarding the wages owed. We conclude that the record supports the lower court’s findings.

F. The Trial Court’s Interpretation of the Regulations

The Good Nite Inns contend that the “collective effect” of Wage Order No. 5-2001 and Code of Federal Regulations section 541.106 is that these regulations mandate that when an exempt employee decides to perform non-exempt work, such work is exempt. The Good Nite Inns fail to cite any authority to support this argument and in a footnote they admit that this is a “question of first impression that has not been decided by any prior case . . . .”

In arguing that the lower court erred in finding that Ahmed’s duties and front desk duties were non-exempt, the Good Nite Inns quote one sentence of section 541.106 of the Code of Federal Regulations. The entire subdivision of this regulation reads: “(a) Concurrent performance of exempt and nonexempt work does not disqualify an employee from the executive exemption if the requirements of [section] 541.100 are otherwise met. Whether an employee meets the requirements of [section] 541.100 when the employee performs concurrent duties is determined on a case-by-case basis and based on the factors set forth in [section] 541.700. Generally, exempt executives make the decision regarding when to perform nonexempt duties and remain responsible for the success or failure of business operations under their management while performing the nonexempt work. In contrast, the nonexempt employee generally is directed by a supervisor to perform the exempt work or performs the exempt work for defined time periods. An employee whose primary duty is ordinary production work or routine, recurrent or repetitive tasks cannot qualify for exemption as an executive.” (29 C.F.R. § 541.106, italics added.) The italicized portion is the only sentence quoted or discussed by the Good Nite Inns.

A reading of the entire provision does not support the Good Nite Inns’ unique interpretation of 29 Code of Federal Regulations section 541.106. This federal regulation explains that, once it has been determined that an employee is an exempt executive, the concurrent performance of exempt and nonexempt work would not exclude the person from this designation and that generally exempt employees will decide for themselves whether to perform nonexempt duties. Here, the court determined that Ahmed was not an exempt employee.

Furthermore, when determining whether Ahmed was an exempt executive, the trial court properly interpreted and applied the IWC wage order. As our Supreme Court explained: “The IWC’s wage orders, although at times patterned after federal regulations, also sometimes provide greater protection than is provided under federal law in the Fair Labor Standards Act (FLSA) and accompanying federal regulations. [Citations.] The FLSA explicitly permits greater employee protection under state law.” (Ramirez, supra, 20 Cal.4th at p. 795.)

G. Compensation for Missed Meal Breaks When Ahmed Made the Decision Not to Take a Break

The Good Nite Inns assert that the trial court erred in finding that Ahmed was entitled to compensation for missed meal breaks because, as the manager, he had the right to take meal breaks whenever he wanted and for as long as he wanted. They claim, without any citation to any authority, that Ahmed could not be compensated for meal breaks that he did not assign for himself. Further, they claim that meal compensation is only required if a break is not offered and Ahmed had control over whether he was offered a meal break.⁴

4 To support this claim, the Good Nite Inns cite Brinker Restaurant Corp. v. Superior Court, but this case is not good law. The Supreme Court granted review of this case after the Good Nite Inns filed their opening brief in this court. (Brinker Restaurant Corp. v. Superior Court (2008) 165 Cal.App.4th 25, review granted October 22, 2008, S166350.)

Labor Code sections 226.7 and 512 mandate that non-exempt employees receive a 30-minute meal break for every five hours worked. As already discussed, Ahmed was a non-exempt employee. Under the statute, an employer who fails to provide such a break must pay the employee one additional hour of pay. (Lab. Code, § 226.7, subdivision (b).) The employer has the burden to establish that the employer communicated the authorization and permission for a meal break to the employees. (Cicairos v. Summit Logistics, Inc., supra, 133 Cal.App.4th at p. 962 [the employer’s obligation to provide the employee with an adequate meal period is not satisfied by assuming that meal periods were taken, because “employers have ‘an affirmative obligation to ensure that workers are actually relieved of all duty’ ”].)

In Cicairos v. Summit Logistics, Inc., supra, 133 Cal.App.4th 949, the court held that the employer of truck drivers had violated Labor Code section 512, subdivision (a) and an IWC wage order relating to meal periods. The employer claimed that “meal periods and rest breaks were the sole responsibility of the drivers because the company could not regulate the drivers’ activities on the road.” (Cicairos, supra, at p. 963.) However, one truck driver stated that “ ‘there was no lunch schedule.’ ” (Ibid.) The evidence showed that the employer managed and scheduled the drivers in such a manner that drivers were unable to take their meal periods. Thus, the court concluded that the employer had violated the law and the employer had “ ‘an affirmative obligation to ensure that workers are actually relieved of all duty[,]’ ” so that it was possible for the drivers to have a meal. (Id. at p. 962.)

Here, the record supported the lower court’s finding that the Good Nite Inns did not ensure that Ahmed scheduled a meal break. The Good Nite Inns do not cite to any evidence in the record that indicates they did anything to ensure that Ahmed was scheduling a meal break. Ahmed testified that, in the spring of 2006, staffing shortages became such a problem that he never was able to take a meal break and that he ate while working. Thus, the evidence supported the lower court’s finding that the Good Nite Inns never met their obligation to ensure that it was possible for Ahmed to take a meal break.

II. Ahmed’s UCL Claim

The trial court ruled that the Good Nite Inns’ failure to pay overtime wages violated the UCL and it awarded Ahmed restitution for four years. The Good Nite Inns contend that the UCL does not apply and, even if it does, the trial court could award restitution only for three years, not for four years. For the reasons set forth below we conclude that the lower court properly applied the UCL and the statute of limitations is four years for a UCL claim.

A. The Application of the UCL

The trial court found that the Good Nite Inns’ failure to pay Ahmed his statutorily mandated overtime wages violated the UCL (Bus. & Prof. Code, § 17200 et seq.). (Janik v. Rudy, Exelrod & Zieff (2004) 119 Cal.App.4th 930.) Consequently, it ruled that he was entitled to restitution for those wages for the full statutory period of four years. The Good Nite Inns contend that they did not violate the UCL because they did not have a company-wide practice affecting a large group of employees of violating the overtime wage laws. Further, they claim that restitution is an equitable remedy and Ahmed had unclean hands by making promises to improve his managerial skills while spending his time shampooing carpets. They also argue that Ahmed is guilty of laches since he waited so long to make his claim.

1. The Relevant Law and Standard of Review

Business and Professions Code section 17200 provides: “As used in this chapter, unfair competition shall mean and include any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising . . . .” Business and Professions Code section 17203 provides in relevant part: “Any person who engages, has engaged, or proposes to engage in unfair competition may be enjoined in any court of competent jurisdiction. The court may make such orders or judgments . . . as may be necessary to restore to any person in interest any money or property, real or personal, which may have been acquired by means of such unfair competition. . . .”

The question of whether to provide the remedy of restitution is a mixed question of law and fact. However, once an unfair business practice has been shown under Business and Professions Code section 17203, the court “ ‘may make such orders or judgments . . . as may be necessary to prevent the use or employment . . . of any practice which constitutes unfair competition . . . or . . . to restore . . . money or property.’ [Citation.] That is, as our cases confirm, a grant of broad equitable power. A court cannot properly exercise an equitable power without consideration of the equities on both sides of a dispute.” (Cortez v. Purolator Air Filtration Products Co. (2000) 23 Cal.4th 163, 180 (Cortez).)

2. Applying the UCL to an Individual Claim of Unpaid Wages

The Good Nite Inns argue that the employer’s failure to pay wages must be company wide for there to be a violation of the UCL. The case law, however, does not support this argument. The Supreme Court in Cortez specifies that any failure to pay wages is an unfair business practice. (Cortez, supra, 23 Cal.4th at pp. 168, 174; see also Janik v. Rudy, Exelrod & Zieff, supra, 119 Cal.App.4th at p. 942 [“the UCL permits restitution of unpaid wages upon a showing that the employer’s failure to pay the wages was an unfair business practice under Labor Code section 1194”].) The Cortez court explains that, under the UCL, a plaintiff may recover money on his or her own behalf: “A UCL action is an equitable action by means of which a plaintiff may recover money or property obtained from the plaintiff or persons represented by the plaintiff through unfair or unlawful business practices.” (Cortez, supra, at p. 173, italics added.) The use of the word “or” indicates that the plaintiff can recover even when the company’s action does not affect any person but the plaintiff.

The Cortez court concludes: “We conclude that orders for payment of wages unlawfully withheld from an employee are also a restitutionary remedy authorized by [Business and Professions Code] section 17203. The employer has acquired the money to be paid by means of an unlawful practice that constitutes unfair competition as defined by section 17200. The employee is, quite obviously, a ‘person in interest’ ([Bus. & Prof. Code,] § 17203) to whom that money may be restored. . . . An order that earned wages be paid is therefore a restitutionary remedy authorized by the UCL.” (Cortez, supra, 23 Cal.4th at pp. 177-178, italics added.) Subsequently, the court again emphasizes that the failure to pay one employee wages is an unfair business practice. The court concludes: “We are satisfied therefore, that an order that a business pay to an employee wages unlawfully withheld is consistent with the legislative intent underlying the authorization in [Business and Profession Code] section 17203 for orders necessary to restore to a person in interest money or property acquired by means of an unfair business practice.” (Id. at p. 178.)

The language in Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134 (Korea Supply) also supports the conclusion that a single employee can recover unpaid wages under the UCL. Unlike Cortez, Korea Supply concerns an individual (not representative) action. The Supreme Court in Korea Supply states: “Under the UCL, an individual may recover profits unfairly obtained to the extent these profits represent monies given to the defendant or benefits in which the plaintiff has an ownership interest.” (Korea Supply, supra, at p. 1148.) The court uses the word “individual.” Furthermore, the court sets forth the policy underlying the UCL, which would seem to encompass the facts of this case: “[T]he [UCL] provides an equitable means through which both public prosecutors and private individuals can bring suit to prevent unfair business practices and restore money or property to victims of these practices. As we have said, the ‘overarching legislative concern [was] to provide a streamlined procedure for the prevention of ongoing or threatened acts of unfair competition.’ ” (Korea Supply, supra, at p. 1150.) Thus, restoring money to a victim is a policy concern.

In the present case, the trial court made it clear that its finding pertained only to Ahmed and it was making no finding as to the other business managers employed by the Good Nite Inns. It, however, stressed that the evidence showed that the employer did not monitor Ahmed’s work and therefore did not know what work he was doing. The court noted that Jackson delegated to his business managers the job of running the business and meeting a budget but, to meet the budget, Ahmed “had to clean the carpets, carry the linens and empty the trash cans, [and the court concluded that] the employer should not be able to walk away from that.” Thus, the Good Nite Inns had an unfair advantage over other budget hotels because Ahmed was doing non-exempt work, which kept the Redwood hotel within its budget and provided the clients with extra attention, while not paying him for his overtime. We therefore conclude that the record supported a finding that the Good Nite Inns engaged in the business practice of not keeping track of the work of the business managers and not ensuring that they were engaged in predominantly exempt tasks, which resulted in the failure to pay Ahmed wages due under the Labor Code. “[A]ny business act or practice that violates the Labor Code through failure to pay wages is, by definition ([Bus. & Prof. Code,] § 17200), an unfair business practice.” (Cortez, supra, 23 Cal.4th at p. 178.)

Accordingly, we conclude that the lower court did not err in determining that the failure to pay Ahmed his wages under the Labor Code was an unfair business act or practice under the UCL. We therefore now need to consider whether the lower court abused its discretion in awarding restitution given the Good Nite Inns’ affirmative defenses.

3. The Defense of Unclean Hands

The Good Nite Inns contend that the lower court abused its discretion in ordering restitution because of the defenses of “unclean hands” and laches. With regard to unclean hands, they assert that Ahmed had unclean hands by making promises to improve his managerial skills and by writing business plans projecting increases in marketing and promotion while spending his time shampooing carpets.

The Supreme Court in Cortez stated “that equitable considerations may enter into the court’s disposition of a UCL action.” (Cortez, supra, 23 Cal.4th at p. 179, italics added.) The court continued: “We agree that equitable defenses may not be asserted to wholly defeat a UCL claim since such claims arise out of unlawful conduct. It does not follow, however, that equitable considerations may not guide the court’s discretion in fashioning the equitable remedies authorized by [Labor Code] section 17203.” (Ibid., italics added.) The court proceeded to explain that the lower court must consider the equities when fashioning an equitable remedy. (Id. at pp. 179-180.) The Supreme Court pointed out that “[n]ormally, however, the plaintiff need not show that a UCL defendant intended to injure anyone through its unfair or unlawful conduct. The UCL imposes strict liability when property or monetary losses are occasioned by conduct that constitutes an unfair business practice.” (Id. at p. 181.)

Here, the court considered that the Good Nite Inns never expressed their unhappiness with Ahmed’s work until June 2006. In fact, the May 2005 evaluation indicated that Ahmed was being considered for manager of the year. Further, the trial court considered the realistic expectations of Ahmed’s job duties given the budget constraints. Thus, the record establishes that the lower court properly considered the equities of the situation, and concluded that the Good Nite Inns benefited from Ahmed’s working overtime and doing non-exempt duties. We can not say from this record that the order of restitution was an abuse of discretion.

4. The Defense of Laches

The affirmative defense of laches may be applied to bar relief to a plaintiff who has delayed unduly in seeking relief. (Concerned Citizens of Palm Desert, Inc. v. Board of Supervisors (1974) 38 Cal.App.3d 257, 265.) A defendant seeking to apply the affirmative defense must demonstrate prejudice, making it unjust to grant the relief to plaintiff. (San Bernardino Valley Audubon Society v. City of Moreno Valley (1996) 44 Cal.App.4th 593, 607.)

Here, the Good Nite Inns assert that this defense applies and provide almost no analysis or discussion. They have not presented any evidence that they suffered any prejudice as a result of any alleged delay. We therefore conclude that this defense does not apply.

B. The Statute of Limitations

The Good Nite Inns claim that, even if the trial court correctly found that the UCL applied, it could give Ahmed restitution for only three years, not for four years. They assert, without any discussion, that the four-year statute of limitations under the UCL applies only to representative UCL claims, not to individual claims. We conclude that this argument has no merit.

The statute of limitations on an action to recover unpaid wages under the Labor Code is three years under the Code of Civil Procedure section 338. (See, e.g., Murphy v. Kenneth Cole Productions, supra, 40 Cal.4th at pp. 1108-1109; Cortez, supra, 23 Cal.4th at p. 168.) However, the statute of limitations under the UCL is four years. (Bus. & Prof. Code, § 17208.)

Business and Professions Code section 17208 provides: “Any action to enforce any cause of action pursuant to this chapter shall be commenced within four years after the cause of action accrued. No cause of action barred under existing law on the effective date of this section shall be revived by its enactment.”

The statute does not distinguish between representative and individual UCL actions. All UCL actions are subject to the four-year statute of limitations.

With no discussion, the Good Nite Inns cite Cortez, supra, 23 Cal.4th 163. Their citation to Cortez is puzzling since this decision makes it clear that the four-year statute of limitations applies to all UCL claims. The court in Cortez explained: Business and Professions Code “[s]ection 17208 is clear. . . . We recognize that any business act or practice that violates the Labor Code through failure to pay wages is, by definition . . ., an unfair business practice. It follows that an action to recover wages that might be barred if brought pursuant to Labor Code section 1194 still may be pursued as a UCL action seeking restitution pursuant to [Business and Professions Code] section 17203 if the failure to pay constitutes a business practice. Nonetheless, the language of section 17208 admits of no exceptions. [Italics added.] Any action on any UCL cause of action is subject to the four-year period of limitations created by that section. [Italics in original.]” (Cortez, supra, at pp. 178-179.)

Here, the trial court correctly applied the four-year statute of limitations for Ahmed’s UCL action.

III. Attorney Fees

The trial court awarded Ahmed attorney fees in the amount of $236,760. The Good Nite Inns claim, with minimal analysis, and discussion that this fee was unreasonable. Since the Good Nite Inns are not challenging the legal basis for the fees, but only the amount awarded, we review the award of attorney fees under the abuse of discretion standard of review. (See, e.g., Wakefield v. Bohlin (2006) 145 Cal.App.4th 963, 978.) In the context of an attorney fee award, reversal would require us to conclude that the trial court “ ‘exceeded the bounds of reason.’ ” (Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 785.)

A. Background

Labor Code section 218.5 provides the following: “In any action brought for the nonpayment of wages . . ., the court shall award reasonable attorney’s fees and costs to the prevailing party if any party to the action requests attorney’s fees and costs upon the initiation of the action. . . .” Labor Code section 1194, subdivision (a), also entitled Ahmed to an award of attorney fees. This statute reads: “(a) Notwithstanding any agreement to work for a lesser wage, any employee receiving less than the legal minimum wage or the legal overtime compensation applicable to the employee is entitled to recover in a civil action the unpaid balance of the full amount of this minimum wage or overtime compensation, including interest thereon, reasonable attorney’s fees, and costs of suit.” (Lab. Code, § 1194, subd. (a).) Ahmed, as the prevailing party, requested attorney fees under these two statutes in the amount of $250,537.50.

On March 11, 2008, the trial court filed its order granting in part and denying in part Ahmed’s motion for attorney fees. The court stated that it considered whether counsel’s hours were reasonable. Two separate law offices represented Ahmed: one office requested compensation for 341.1 hours and the other asked to be compensated for 186.4 hours. The court found no duplication of efforts or unreasonable amounts of time devoted to any of the tasks performed in the action. However, the court determined that some of the hours should be deducted because they pertained to the dismissed retaliation claim. The court eliminated the hours associated with this claim and reduced the requested hours for one law firm by 24.95 hours and the requested hours by the other law firm by four hours. The court ruled that the rates requested, which varied between $275 to $425 for the work of different attorneys, reasonable. It also determined that the rates of $175 an hour for a paralegal with 20 years of experience and $125 an hour for a law clerk were reasonable. The court found the lodestar amount to be $157,840.

The court then considered an upward multiplier of 1.5 requested by counsel for Ahmed and a downward multiplier requested by counsel for the Good Nite Inns. Ahmed requested the upward multiplier “to reflect the complexity of the issues presented, the contingency fee basis for counsel’s representation and the fact that counsel was forced to forego other employment while handling this action.” The Good Nite Inns wanted a downward multiplier “to reflect the simplicity of the case and the court’s role in adducing evidence at trial.”

The trial court stated that it did not agree that the lodestar amount should be decreased. The court considered that the attorneys for Ahmed “worked on a contingent fee basis, not only deferring payment for their work for one year[,] but also fully bearing the risk that no compensation would be paid.” The court noted that such conduct “merits application of an upward multiplier in order to ensure that counsel is fully and fairly compensated for their services when they prevail.” The court cited Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132-1133 (Ketchum) and Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 394-395. The trial court agreed that the “the issues presented were neither novel nor complex,” but it determined that counsel for Ahmed were entitled “to a reasonable multiplier to address the contingent and deferred nature of the fee agreement.” It therefore used a multiplier of 1.5 and awarded counsel attorney fees in the amount of $236,760.

B. Applying the Lodestar Adjustment Method to the Facts of this Case

The lower court properly used the lodestar adjustment method, which is employed to compute attorney fees where a statute such as Labor Code sections 218.5 and 1194, subdivision (a), authorize recovery to the prevailing party. (See Ketchum, supra, 24 Cal.4th at pp. 1133-1136; Serrano v. Priest (1977) 20 Cal.3d 25, 48-49.) Under this approach, the trial court first determines the reasonable hourly rate of compensation for counsel, which it then multiplies by the number of hours the court finds were reasonably spent preparing the case. (Ketchum, supra, at pp. 1131-1132.) Next, the base amount “may then be increased or reduced by application of a ‘multiplier’ after the trial court has considered other factors concerning the lawsuit.” (Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311, 322, fn. omitted.) The lodestar my be adjusted “by the court based on factors including, as relevant herein, (1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, (4) the contingent nature of the fee award.” (Ketchum, supra, 24 Cal.4th at p. 1132.)

The Good Nite Inns maintain that the lower court abused its discretion in awarding $236,760 in attorney fees because the issues in the case were neither novel nor complex. We conclude that the question of the complexity of the issues was clearly considered by the trial court, and it noted that the issues were not complex. The court pointed out that the lodestar it was employing was modest and it would have used a lodestar of two or three had the issues been more complex. Thus, it is clear that the trial court considered the complexity of the issues when setting the lodestar.

The Good Nite Inns’ second complaint is that the attorneys for Ahmed were to receive a contingency fee of one-third of the recovery. They assert, with no support from the record, that counsel will receive both statutory fees and contingency fees, which will be more than the amount of money recovered by Ahmed.

The record establishes that Ahmed had a contingency fee agreement with counsel, which the lower court considered when making its award. Our Supreme Court has expressly stated that cases involving a contingent fee may warrant more compensation because such a fee is a gamble. (Ketchum, supra, 24 Cal.4th at p. 1132.) “The economic rationale for fee enhancement in contingency cases has been explained as follows: ‘A contingent fee must be higher than a fee for the same legal services paid as they are performed. The contingent fee compensates the lawyer not only for the legal services he renders but for the loan of those services. The implicit interest rate on such a loan is higher because the risk of default (the loss of the case, which cancels the debt of the client to the lawyer) is much higher than that of conventional loans.’ [Citation.] ‘A lawyer who both bears the risk of not being paid and provides legal services is not receiving the fair market value of his work if he is paid only for the second of these functions. If he is paid no more, competent counsel will be reluctant to accept fee award cases.’ [Citations.]” (Id. at pp. 1132-1133.) Thus, the trial court properly considered the contingency fee agreement as supporting a higher award of attorney fees.

The Good Nite Inns also claim that the lower court gave too much weight to the factor that counsel deferred work. They maintain that one of the attorneys, Timothy G. Williams, who acted as co-counsel for Ahmed, did not attend the entire trial. We conclude, however, that the trial court was aware of the amount of time the attorney spent at trial as well as the difficulty in accepting other cases while this case was pending. The Good Nite Inns have provided no evidence that Williams was absent because he was litigating another action. The lower court properly considered the time required for this trial, the prospect of deferred compensation, the risk of the litigation, and the necessity of forgoing other employment while pursuing this action. The Good Nite Inns have failed to establish that the lower court did not consider any of the relevant factors when making its award.

Finally, the Good Nite Inns argue that counsel for Ahmed displayed minimal skill when preparing their expert witness, Raymond Jee, since the lower court struck a significant portion of his testimony. Additionally, they point out that the court had to ask their witnesses many questions. The trial court evaluated the competency and effectiveness of trial counsel; it was in the best position to assess counsel’s competence. “ ‘The “ ‘experienced trial judge is the best judge of the value of professional services rendered in his court, and while his judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong.’ ” ’ [Citation.]” (Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 579.)

Accordingly, we conclude that the Good Nite Inns have failed to establish that the lower court abused its discretion when awarding Ahmed attorney fees in the amount of $236,760.

DISPOSITION

The judgment is affirmed. Ahmed is awarded the costs of appeal.

We concur: Haerle, Acting P.J., Richman, J.