Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. 37-2008-00080714- CU-OE-CTL, Ronald L. Styn, Judge.
McIntyre, J.
Krystal A. Jones appeals a judgment entered after the trial court granted summary judgment in favor of her former employer, International Coffee & Tea, LLC (International Coffee), in this class action arising out of International Coffee's method of distributing customer tips to employees. The trial court concluded that our decision in Chau v. Starbucks Corp. (2009) 174 Cal.App.4th 688 (Chau) was controlling. We agree and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
International Coffee operates numerous "The Coffee Bean & Tea Leaf" cafes in California. Each cafe is staffed with baristas, shift supervisors, a general manager, and sometimes an assistant manager. Baristas and shift supervisors spend the vast majority of their workday serving customers and making drinks. There are generally four workstations at each cafe, with baristas and shift supervisors rotating among the workstations throughout the day. Baristas and shift supervisors perform similar tasks, including serving customers, cleaning, counting their cash drawers and taking breaks.
Before 2006, International Coffee allowed the employees in each cafe to decide whether to place a tip jar near the cash register. If employees elected to collect tips, International Coffee asked that the gratuities be evenly distributed among hourly team members. Employees pooled any tips and counted them at the end of each shift. The tips were then divided equally among the baristas and shift supervisors working that shift. Shift supervisors or lead baristas generally oversaw the tip distribution.
Beginning in 2006, International Coffee changed the procedure and required that all tip jar tips be gathered at the end of the day and housed in a secured designated location. At the end of the week, a shift supervisor counted the tips and distributed them to the shift supervisors and baristas who worked that week. The hourly tip rate is calculated by dividing the total amount of tips pooled by the total number of hours in that workweek. The shift supervisor then multiplied the hourly tip rate by the number of hours worked by each individual barista and shift supervisor and distributed the tips accordingly. The tips allocated to each employee are placed in separate plastic bags with the employee's name written on the bag. Shift supervisors and baristas receive their tips the next time they work or are otherwise in the store.
International Coffee does not have a policy addressing "individual tips, " meaning tips handed to a person, rather than placed into the tip jar. Individuals can choose to keep an individual tip, or place the tip into the tip jar. Jones could not recall seeing any written policy from International Coffee directing employees to place individual tips into the tip jar, nor did she discuss this issue with anyone at International Coffee. Jones conceded that International Coffee followed its stated policies and procedures for tip allocation.
Jones worked as a barista for International Coffee for about 15 months. Before her resignation, she filed the instant class action on behalf of herself "and all non-supervisory employees ('Baristas') employed by, or formerly employed by" International Coffee. She alleged three causes of action: (1) improper tip pooling (Lab. Code, § 351 (hereafter section 351)); (2) failure to pay compensation due and owing to terminated or resigned employee (Lab. Code §§ 201-203, 1199); and (3) unfair business practices in violation of California's unfair competition law (UCL) (Bus. & Prof. Code, § 17200 et seq.).
The parties stipulated to the creation of a class and subclass. The stipulated class consisted of: "All persons who are employed or have been employed by Defendant in the State of California who, from March 28, 2004 through March 27, 2008, have worked as a Barista and were required to pool tips with employees whom Plaintiff alleges are supervisors, including but not limited to employees with the title 'Shift Supervisor.'" The subclass consisted of: "All persons who are members of the Class defined in Paragraph 1 above, but who are no longer employed by Defendant."
International Coffee filed a motion for summary judgment or, alternatively, summary adjudication of Jones's claims based on this court's decision in Chau. The trial court granted summary judgment in favor of International Coffee, and Jones timely appealed from the judgment.
DISCUSSION
I. General Legal Principles
Summary judgment is properly granted when there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) Where the defendant is the moving party, it must show that a cause of action has no merit by putting forth evidence to show that either one or more elements of the cause of action, even if separately pleaded, cannot be established, or that a complete defense exists thereto. (Id., subd. (o).) If the defendant meets this burden, the burden shifts to the plaintiff to establish that a triable issue of material fact exists. (Id., subd. (p)(2).) On appeal, we review de novo the trial court's decision to grant summary judgment. We independently determine whether the record supports the trial court's conclusion that the asserted claims fail as a matter of law, and we are not bound by the trial court's stated reasoning or rationales. (Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 951.)
II. Analysis
Section 351 generally provides that no employer is entitled to any gratuity given to an employee, or left for an employee. Our high court recently concluded that this statute does not provide wronged employees with a private right to sue. (Lu v. Hawaiian Gardens Casino, Inc. (2010) 50 Cal.4th 592, 598 (Lu).) Here, Jones's first cause of action alleged that International Coffee had a policy of requiring its baristas to pool their tips with supervisors in violation of section 351. This claim fails as a matter of law under Lu.
Jones's second cause of action alleged that International Coffee's violation of section 351 caused it to violate other Labor Code sections requiring that employers timely pay compensation due at termination. International Coffee moved for summary judgment of this claim asserting, among other things, that because its tip distribution policies were lawful, it owed no additional tips to baristas upon termination of their employment. The trial court agreed this claim was derivative of Jones's first cause of action. Jones did not address the second cause of action in her opening brief and has forfeited any claim of error as to this cause of action. (Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6.)
Jones's final cause of action alleged that International Coffee's improper policy of requiring baristas to pool tips with supervisors, and failure to pay all compensation due at termination, constituted unlawful activity prohibited by the UCL. We recently addressed a similar claim in Chau. In Chau, we assumed without deciding, that section 351 may serve as a predicate to an alleged violation of the UCL. (Chau, supra, 174 Cal.App.4th at p. 691, fn. 2; see generally Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 180 ["By proscribing 'any unlawful' business practice, '[Business & Professions Code, ] section 17200 "borrows" violations of other laws and treats them as unlawful practices' that the unfair competition law makes independently actionable."].) We held that the section 351 ban on employers sharing in tips did not apply to a Starbucks "shift supervisor" who worked as part of a team with baristas. Even if the shift supervisor is an "agent" of Starbucks, he or she is also part of the team for which the tip was intended. (Chau, supra, 174 Cal.App.4th at pp. 696, 698-699.)
In granting summary judgment in favor of International Coffee, the trial court concluded that the undisputed facts presented by the parties were "identical" to those enumerated in Chau. Specifically, it found that International Coffee's "tip policy and overall operations [were] identical to those of Starbucks in Chau." In an attempt to escape the holding in Chau, Jones asserted that Starbucks had an express employment policy allowing baristas to keep tips given to them individually, but that International Coffee has no such policy, that tip pooling was mandatory, and employees could not keep individual tips. The trial court rejected the claimed distinction, concluding that Jones submitted no evidence to support a finding that International Coffee had a policy requiring its baristas to share individual tips by placing them into the collective tip jar. The record supports the trial court's conclusion.
International Coffee's written policies and procedures do not address individual tips, and Jones admitted she had no knowledge of a policy requiring the pooling of individual tips. International Coffee also presented the declarations of 12 employees, including shift supervisors and general managers, stating they knew of no policy requiring the pooling of individual tips; rather, employees could keep such tips, or place them into the collective tip jar.
Although Jones suggests that International Coffee had an unwritten policy requiring that employees place individual tips into the collective tip jar, the foregoing evidence rebuts this assertion. Finally, as noted by the trial court, none of the evidence submitted by Jones supported her claim that International Coffee had a policy, either written or unwritten, requiring baristas to share individual tips. Accordingly, there is no need for us to address the legality of a purported policy requiring baristas to place individual tips into a collective tip jar.
Because Jones did not show a violation of section 351, her UCL claim failed as a matter of law. Thus, the trial court properly granted summary judgment in favor of International Coffee.
DISPOSITION
The judgment is affirmed. Respondent is entitled to its costs on appeal.
WE CONCUR: HALLER, Acting P. J., McDONALD, J.