Opinion
D073010
03-15-2018
SHANNON MEEHAN et al., Plaintiffs and Appellants, v. INLAND COUNTIES REGIONAL CENTER, INC., Defendant and Respondent.
Law Offices of Todd Boley, Todd Boley, David W. Hamilton and Justin Young for Appellants and Plaintiffs. Lewis Brisbois Bisgaard & Smith, Jeffrey S. Ranen and Brendan T. Sapien for Respondents and Defendants.
ORDER MODIFYING OPINION AND DENYING REHEARING [NO CHANGE IN JUDGMENT] THE COURT:
It is ordered that the opinion filed on March 15, 2018, be modified as follows:
On page 21, after the end of the last full paragraph and prior to the Disposition, add the following:
D. The Portions of the Judgment That Are Affirmed Result from Plaintiffs' Request for Dismissal and the Parties' Stipulation
In a petition for rehearing, Plaintiffs contend that our rulings affirming portions of the judgment resulted from issues that were not proposed or briefed by the parties, and the parties were not given an opportunity to present their views through supplemental briefing. (See pts. III.B. & III.C., ante.) We disagree.
Plaintiffs appealed from the judgment, not from the order granting summary adjudication—as they must, since an order granting summary adjudication is not appealable. (Jennings v. Marralle (1994) 8 Cal.4th 121, 128.) We requested supplemental briefing twice in order to determine whether the judgment in this case is final for purposes of appellate jurisdiction. Based on the input from the parties in their letter briefs, we concluded that, because the judgment terminated the trial court proceedings by completely disposing of the entire matter in controversy, consistent with the one final judgment rule, we have jurisdiction. (See pp. 8-9, ante.)
In their appeal from the judgment, Plaintiffs challenged only the order granting Defendants' motion for summary adjudication. In deciding the appeal from the judgment, we necessarily dealt with the judgment, not just the order granting summary adjudication—affirming the remainder of the judgment, because Plaintiffs requested or stipulated to the remainder and raised no issue or argument as to any of the other claims or causes of action. (See pts. III.B. & III.C., ante.)
Contrary to the petition for rehearing, Plaintiffs were given the opportunity to deal with these other claims and causes of action in response to the two requests for supplemental briefing related to these claims and causes of action. Moreover, had Plaintiffs' position been any different (as Plaintiffs appear to suggest for the first time in
their petition for rehearing), our analysis of appellate jurisdiction necessarily would have been different (with perhaps a different conclusion) under Kurwa v. Kislinger, supra, 57 Cal.4th 1097, which holds that, where the parties seek appellate review of some but not all of their claims, effectively preserving their remaining claims for future litigation, the trial court's judgment is not final and thus not appealable.
For example, in our first request for further briefing, we stated: "From the declaration of plaintiffs' counsel that accompanied the request for dismissal and the parties' litigation plan described in the record on appeal, we note the possibility that, in the event of a reversal of the disposition of the first cause of action, plaintiffs intend to prosecute not only 'the AWS class claim' in the first cause of action, but also to reassert or otherwise proceed with their 'AWS class claim and claims for penalties and damages arising out of the' fourth, fifth and sixth causes of action 'as they relate to the AWS class claim.' " In particular, we brought to the parties' attention that, when the trial court has resolved one cause of action and the others are voluntarily dismissed, the judgment may be " 'one that "fails to complete the disposition of all the causes of action between the parties' [citation] and is therefore not appealable." ' (Kurwa v. Kislinger (2013) 57 Cal.4th 1097, 1105 . . . .)"
In their petition for rehearing, Plaintiffs provide authorities for the proposition that parties may stipulate to judgment on claims or causes of action that had not been litigated in order to expedite appellate review of an adverse interlocutory order. However, all predate Kurwa v. Kislinger, supra, 57 Cal.4th 1097, and none was cited in Plaintiffs' letter briefs regarding appellate jurisdiction.
There is no change in judgment.
Plaintiffs' petition for rehearing is denied.
BENKE, Acting P. J. Copies to: All parties
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CIVDS1109609) APPEAL from a judgment of the Superior Court of San Bernardino County, John M. Pacheco, Judge. Affirmed in part, reversed in part, and remanded with instructions. Law Offices of Todd Boley, Todd Boley, David W. Hamilton and Justin Young for Appellants and Plaintiffs. Lewis Brisbois Bisgaard & Smith, Jeffrey S. Ranen and Brendan T. Sapien for Respondents and Defendants.
This is an appeal from a final judgment in a lawsuit that the plaintiffs filed as a wage and hour class action. Plaintiffs Shannon Meehan, Elsa Espinoza, and Ken Willits (Plaintiffs) filed the underlying action on behalf of themselves and two classes of unnamed plaintiffs against their employer (or, depending on the individual plaintiff, former employer), Inland Counties Regional Center, Inc. (Defendant). Plaintiffs sought remedies for Defendant's alleged violations of state "laws, rules, regulations and orders" related to overtime compensation.
Prior to any effort to certify the two plaintiff classes, each side filed its own motion for summary adjudication of Plaintiffs' first cause of action, in which Plaintiffs alleged that the alternative workweek schedule (AWS) that Defendant adopted in 1991 unlawfully deprived Plaintiffs and the first class they purported to represent (the alternative workweek class or AW Class) of overtime pay to which they were entitled. The court denied Plaintiffs' motion and granted Defendant's motion. Following those rulings, at Plaintiffs' request, the trial court entered a final judgment as follows: (1) judgment in favor of Defendant with regard to all claims involving Plaintiffs and the AW Class; and (2) dismissals with prejudice with regard to all claims involving Plaintiffs and the second class they purported to represent (the consumer service coordinator class or CSC Class).
The court had granted summary adjudication in favor of Defendant as to Plaintiffs' individual claims in the first cause of action (brought by Plaintiffs individually and on behalf of the AW Class). As to the AW Class claims in the first cause of action and as to all other causes of action brought by Plaintiffs individually and on behalf of the AW Class, the parties stipulated to entry of judgment in favor of Defendant.
In reviewing the judgment on appeal, we will: reverse that part of the judgment granting Defendant's motion for summary adjudication of the individual Plaintiffs' claims in the first cause of action, on the basis that Defendant did not meet its initial burden of making a prima facie showing of the nonexistence of any triable issue of material fact; and affirm the remaining portions of the judgment (1) dismissing the second and third causes of action, (2) dismissing all individual and class claims related to the CSC Class in the fourth, fifth, and sixth causes of action, and (3) entering judgment in favor of Defendant on the AW Class claims in the first cause of action and all individual and class claims related to the AW Class in the fourth, fifth, and sixth causes of action—all on the basis that Plaintiffs requested each of these rulings in the trial court and did not challenge or otherwise question any of them on appeal.
I.
INTRODUCTION
The claims in Plaintiffs' complaint are all based on state law that obligates employers to pay their nonexempt employees overtime compensation after a maximum number of hours in any one workday or in any one workweek. (See Lab. Code, § 510, subd. (a); Ramirez v. Yosemite Water Co. (1999) 20 Cal.4th 785, 789 (Ramirez).)
For example, 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. . . ."
Defendant is a nonprofit corporation that provides services for individuals with developmental disabilities and their families throughout San Bernardino and Riverside counties. In May 1991, Defendant adopted the following "9/80" AWS for its nonexempt employees: For each two-week (10 workday) 80-hour pay period, affected employees work eight nine-hour days and one eight-hour day and have one day off. At that time, Labor Code former section 510 provided in relevant part that "[e]ight hours of labor constitutes a day's work, unless it is otherwise expressly stipulated by the parties to a contract." (Stats. 1982, ch. 185, p. 563, § 1.)
Also at the time Defendant adopted the 9/80 AWS in May 1991, the Industrial Welfare Commission (IWC)—i.e., "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, supra, 20 Cal.4th at p. 795)—had enacted wage order No. 4-89 to regulate employee overtime in occupations that included Defendant's employees (Wage Order No. 4-89). (Cal. Code Regs., tit. 8, former § 11040, eff. July 1, 1989, Register 89, No. 17 (Apr. 29, 1989) pp. 764-772 (former § 11040).) In part, Wage Order No. 4-89 required an employer like Defendant to pay established overtime rates to employees like Plaintiffs in the event the employee was required to work more than eight hours in any one workday or more than 40 hours in any one workweek. (Former § 11040, subd. 3(A).)
Labor Code section 1173 authorizes the IWC to promulgate orders regulating wages, hours, and working conditions in California. Pursuant to this authority, the IWC has adopted one general minimum wage order (which applies to all employers and employees except outside sales people) and 17 orders that regulate wages, hours, and working conditions in specific industries and occupations. (See Cal. Code Regs., tit. 8, §§ 11000-11170.)
At issue in this appeal is an IWC-authorized exception to this general rule, also found in Wage Order No. 4-89, former section 11040, subdivision 3(B). This exception provides in part that no employer is deemed to have violated the overtime provisions if the employer and the affected employees entered into a written agreement as to the minimum number of hours in a particular workday or workweek before payment of wages at an overtime rate, following approval of such an AWS by at least two-thirds of the employees in the affected work unit following a secret ballot. (Wage Order No. 4-89, subd. 3(B); former § 11040, subd. 3(B).)
Wage order No. 4-89, found at California Code of Regulations, title 8, section 11040, has been amended several times. (E.g., Cal. Code Regs., tit. 8, § 11040, Register 89, No. 10 (Mar. 11, 1989) pp. 764-772; id., Register 89, No. 17 (Apr. 29, 1989) pp. 764-772; id., Register 91, No. 32 (Aug. 9, 1991) pp. 1299-1302; see Lujan v. Southern California Gas Co. (2002) 96 Cal.App.4th 1200, 1204, fn. 2.) The iteration of wage order No. 4-89 applicable here is found at California Code of Regulations, title 8, section 11040, Register 89, No. 17 (Apr. 29, 1989), pages 764-772 (previously identified as Wage Order No. 4-89 and former § 11040, respectively). Pages 765-768 of Wage Order No. 4-89 are unavailable, and in their place we have relied on pages 765-768 of the immediately preceding iteration found at Register 89, No. 10 (Mar. 11, 1989), which contains the same page numbering.
II.
STATEMENT OF THE CASE
The thrust of Plaintiffs' complaint is that Defendant has not been paying certain employees required overtime wages, entitling Plaintiffs and the two classes they purport to represent to damages, penalties, injunctive relief, declaratory relief, and attorney fees and costs under the Labor Code, the Business & Professions Code, and certain IWC wage orders. All that is at issue in this appeal is Plaintiffs' first cause of action, which Plaintiffs brought on behalf of themselves and the AW Class, alleging that, because Defendant did not lawfully adopt its 9/80 AWS in 1991, Defendant's work schedule under the 9/80 AWS violated state overtime laws.
Plaintiffs brought the second and third causes of action on behalf of themselves individually and the CSC Class and the fourth, fifth, and sixth causes of action on behalf themselves and both classes.
There is no need to discuss the substantive claims in any of these causes of action, because Plaintiffs requested that each of these CSC Class-related claims be dismissed with prejudice in their entirety and that judgment be entered in favor of Defendant on each of these AW Class-related claims; and on appeal no party challenges those dismissals. (See fn. 7, post)
Plaintiffs did not seek certification of either alleged class.
Plaintiffs filed, and the trial court denied, a motion for summary adjudication of their individual claims in the first cause of action. While that motion was pending, but before receiving the court's ruling, Defendant filed a motion for summary adjudication of the same individual claims in the first cause of action. In July 2013, the court granted Defendant's motion, ruling in relevant part that Defendant's 9/80 AWS was lawful and fully complied with the requirements of Wage Order No. 4-89.
The parties do not tell us what happened over the course of the following three years, although the record on appeal contains six case management statements that include the parties' "joint litigation plan"—a plan which does not indicate any effort to proceed to trial. Contrary to the parties' multiple representations to the court in the two and a half years of joint litigation plans (see fn. 6, ante), there is no indication that either side was making any effort to "proceed to Plaintiffs' remaining causes of action."
The six reports, filed between December 2013 and July 2016, contain the same joint litigation plan. Each indicated that the parties wanted first to "litigate Plaintiffs' AWS cause of action" (which had been completed in July 2013, five months before the first report) and then to "address the collectability issue with respect to any potential judgment, and subsequently proceed to Plaintiffs' remaining causes of action." Other than these reports, during the June 2013 - July 2016 time period, the register of actions contains only stipulations or motions to continue case management conferences and trial setting conferences and the related orders continuing or vacating hearing dates.
In June 2016, Plaintiffs requested the following relief: dismissal of all individual and class claims related to the CSC Class, which included the second and third causes of action and portions of the fourth, fifth, and sixth causes of action; and entry of judgment in favor of Defendant on all claims related to the AW Class, based on (1) the order granting Defendant's motion for summary adjudication as to Plaintiffs' individual claims in the first cause of action, and (2) a stipulation between Plaintiffs and Defendant as to the AW Class claims in the first cause of action and the individual and class claims related to the AW Class in the fourth, fifth, and sixth causes of action. Plaintiffs made this request expressly so that "Plaintiffs would then have a Final Judgment from which to appeal."
On June 14, 2016, the court granted Plaintiffs' request. The court signed an order dismissing all of the claims related to the CSC Class and directing judgment in favor of Defendant and against Plaintiffs on all of the claims related to the AW Class. Plaintiffs timely appealed.
The parties raise no issue on appeal as to the trial court's approval of Plaintiffs' requested disposition of the class claims. Thus, we have no reason to question the court's application of California Rules of Court, rule 3.770, and the implied finding of a lack of prejudice to the potential class members in dismissing some of their alleged claims and in entering judgment in favor of Defendant on their remaining claims. (See Shapell Industries, Inc. v. Superior Court (2005) 132 Cal.App.4th 1101, 1109 ["California courts recognize and preserve the rights of absent class members, even before the issue of certification has been determined."]; Pirjada v. Superior Court (2011) 201 Cal.App.4th 1074, 1088 ["the obligation to notify absent class members before dismissing the case rests with the superior court"].)
The order was prepared by Plaintiffs' counsel and attached as the final page of Plaintiffs' request. The parties intended this order to be a final judgment; the parties have treated this order as a final judgment; based on the register of actions, the trial court intended this order as a final judgment; and this order disposes of all causes of action between all of the parties. Thus, we deem this order to be the final judgment. (See Hall v. Superior Court (2016) 3 Cal.App.5th 792, 805 [" 'The substance and effect of the order, not its label or form, determines whether it is appealable.' "]; Civ. Code, § 3528 ["The law respects form less than substance."].)
III.
DISCUSSION
We requested and received supplemental briefing on the issue of appellate jurisdiction. We have accepted and relied on the following statements from counsel in their written responses: (1) Counsel have no agreements, formal or informal, regarding potential future litigation of any of the claims related to the AW Class in the fourth, fifth, or sixth causes of action following disposition of this appeal; (2) all dismissals of the claims related to the CSC Class are with prejudice; and (3) directly contrary to prior statements by Plaintiffs' counsel, the three named plaintiffs did not settle their individual wage and hour claims alleged on behalf of the AW Class. Based on counsel's representations—and consistent with the one final judgment rule (Kurwa v. Kislinger (2013) 57 Cal.4th 1097, 1105) and the requirement that only an aggrieved party may appeal (Code Civ. Proc., § 902)—we are satisfied that we have jurisdiction and will proceed.
The judgment of the trial court is presumed correct, and Plaintiffs (as the appellants) have the burden of establishing reversible error. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; Swigart v. Bruno (2017) 13 Cal.App.5th 529, 535 (Swigart) [appeal from defense summary judgment].) As we explain at part III.A., post, Plaintiffs have met this burden with regard to the trial court's grant of Defendant's motion for summary adjudication of the first cause of action; and we will accordingly reverse the judgment in part. As we explain at parts III.B. & III.C., post, because Plaintiffs expressly requested the remaining relief awarded in the judgment and Plaintiffs have raised no issues on appeal as to this relief, we will affirm the remainder of the judgment. A. First Cause of Action
In their first cause of action, Plaintiffs allege that Defendant's AWS unlawfully deprived them, individually and the AW Class they purport to represent, of overtime pay to which they are entitled. The principal issue on appeal is whether, consistent with the applicable statutes and wage orders, Defendant properly adopted its 9/80 AWS in 1991. If not, according to the complaint, Plaintiffs are entitled to overtime wages and related penalties.
Defendant contends that, prior to adopting its 9/80 AWS in 1991, it fully complied with the procedures in subdivision 3(B) of Wage Order No. 4-89 (former § 11040, subd. 3(B)), such that Defendant is not subject to the overtime requirements in subdivision 3(A) of Wage Order No. 4-89 (former § 11040, subd. 3(A)). In part on that basis, Defendant moved for summary adjudication of the first cause of action.
Wage Order No. 4-89 provided in part at subdivision 3(A): "[E]mployees shall not be employed more than eight (8) hours in any workday or more than forty (40) hours in any workweek unless the employee receives one and one-half (1½) times such employee's regular rate of pay for all hours worked over forty (40) hours in the workweek. Employment beyond eight (8) hours in any workday or more than six (6) days in any workweek is permissible provided the employee is compensated for such overtime at not less than [established rates for overtime that are not relevant to the issues in this appeal.]" (Former § 11040, subd. 3(A).)
Wage Order No. 489 provided in part at subdivision 3(B): "No employer shall be deemed to have violated the provision of this Section 3[, subdivision (A)], . . . by instituting, pursuant to a written agreement voluntarily executed by the employer and by at least twothirds (?) of the employees in the affected work unit following a secret ballot and before the performance of the work, a regularly scheduled week of work consisting of such hours and days as shall be agreed upon consistent with [established rates for overtime that are not relevant to the issues in this appeal]." (Former § 11040, subd. 3(B), italics added.)
1. Standards of Review
Because this is an appeal from a judgment after summary adjudication proceedings, " 'we take the facts from the record that was before the trial court when it ruled on that motion.' " (Wilson v. 21st Century Ins. Co. (2007) 42 Cal.4th 713, 716-717 (Wilson).) We consider all the evidence in the moving and opposing papers, except evidence to which an objection was made and sustained, liberally construing and reasonably deducing inferences from Plaintiffs' evidence, resolving any doubts in the evidence in favor of Plaintiffs. (id. at p. 717; Code Civ. Proc., § 437c, subds. (c), (f)(2).)
As we explain at part III.A.3., post, Plaintiffs have forfeited appellate consideration of the denial of their motion for summary adjudication. Thus, our discussion of the underlying facts includes only inferences in favor of Plaintiffs, who opposed Defendant's motion which the trial court granted.
We review de novo the trial court's ruling on a motion for summary adjudication. (Jacks v. City of Santa Barbara (2017) 3 Cal.5th 248, 273.) A summary adjudication motion "proceed[s] in all procedural respects as a motion for summary judgment." (Code Civ. Proc., § 437c, subd. (f)(2).) As a practical matter, " ' "we assume the role of a trial court and apply the same rules and standards" ' " that govern the trial court's determination of a motion for summary adjudication. (Swigart, supra, 13 Cal.App.5th at p. 536.)
A defendant is entitled to summary adjudication on the basis that the "[cause of] action has no merit" (Code Civ. Proc., § 437c, subd. (a)(1)) only where the court is able to determine from the evidence presented that "there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law" (id., § 437c, subd. (c)). A cause of action "has no merit" if, as a matter of law, one or more of the elements of the cause of action cannot be established or if, as a matter of law, an affirmative defense to the cause of action can be established. (Id., § 437c, subd. (o).)
A defendant has the ultimate burden of persuasion that one or more elements of the cause of action at issue "cannot be established" or that "there is a complete defense to the cause of action." (Code Civ. Proc., § 437c, subd. (p)(2); see Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849, 850, 853-854 (Aguilar).) In attempting to meet this burden, the moving defendant has the initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact. (Aguilar, at p. 850.) If the defendant meets this burden, then the burden of production shifts to the opposing plaintiff to establish the existence of a triable issue of material fact. (Id. at pp. 850-851.)
2. The Trial Court Erred in Granting Defendant's Motion for Summary Adjudication as to Plaintiffs' First Cause of Action
Subdivision 3(B) of Wage Order No. 4-89 contained a number of requirements for an employer to establish that it did not violate overtime regulations in adopting an AWS. (Former § 11040, subd. 3(B).) Because Defendant's ultimate burden of persuasion was that there was a complete defense to the cause of action—namely, that when it began its 9/80 AWS in 1991, Defendant had fully complied with Wage Order No. 4-89—Defendant's initial burden was to make a prima facie showing of the nonexistence of a triable issue of material fact as to compliance with subdivision 3(B). (Aguilar, supra, 25 Cal.4th at p. 850.) As we explain, Defendant did not meet this burden.
To show compliance with Wage Order No. 4-89 subdivision 3(B), Defendant was required, in part, to establish the nonexistence of a triable issue of the following material fact: approval of the proposed AWS "by at least two-thirds (?) of the employees in the affected work unit following a secret ballot." (Former § 11040, subd. 3(B).) Defendant attempted to meet this initial burden in the trial court by quoting from a witness's testimony and arguing as follows:
"Ultimately, the AWS 'passed by the required two-thirds majority in the Colton office (161 to 26) [i.e. 161 out of 187], equaling an 86.09% pass rate and in the San Bernardino office (19 to 9) [i.e. 19 out of 28 — 67.85%].' . . . Thus, both offices individually and combined passed the AWS schedule by a two-thirds majority [180 out of 215 — 83.72%.]." (Brackets in original.)Based on Defendant's separate statement of undisputed material facts, the evidence on which Defendant relied in support of this statement, which we describe in more detail below, included: (1) declaration testimony from Defendant's 1991 human resources coordinator; (2) minutes from a March 1991 meeting of Defendant's board of trustees; (3) a May 1991 memorandum from Defendant's 1991 assistant to the director; and (4) minutes from a May 1991 meeting of Defendant's board of trustees.
In Defendant's separate statement of undisputed material facts, Defendant also cited "35:18-25" of "Exhibit M," which is a transcript from the deposition of Defendant's 1991 human resources coordinator. However, Exhibit M does not contain a page 35 from the deposition. In any event, the cited deposition testimony, which is located elsewhere in the record, merely identifies one of the people who counted the votes from the May 1991 election—with no mention of the election results.
However, for the reasons explained in the following paragraphs, we agree with Plaintiffs that the foregoing evidence does not establish as a matter of law that at least two-thirds "of the employees in the affected work unit" approved Defendant's 9/80 AWS in May 1991. (Former § 11040, subd. 3(B), italics added.) That is because Defendant never submitted evidence of the number of "employees in the affected work unit." By only submitting evidence of the number of employees who voted, at most Defendant established that two-thirds of those who voted approved the proposed AWS.
Approximately one month before the scheduled election, in an April 1991 memorandum to all staff describing the proposed 9/80 AWS, Defendant defined the affected work unit as "all employees except those employees regularly scheduled to work from 5 p.m. to 9 p.m." (Italics omitted.) Thus, not all nonexempt employees were part of the affected work unit.
First, the declaration testimony from Defendant's 1991 human resources coordinator indicates that she successfully defended Defendant against a challenge to Defendant's AWS election procedures at a hearing in San Bernardino before "a Labor Commissioner" who "rul[ed] in favor of [Defendant]" and concluded that Defendant "conducted a valid alternative workweek schedule election and maintained a valid alternative workweek schedule." However, this testimony does not establish as a matter of law that two-thirds of those potentially affected voted in favor of the proposed AWS—only that the former human resources coordinator recalled a Labor Commission hearing at which the commissioner found Defendant's AWS valid and did not levy a penalty or fine. While this is certainly evidence in support of an argument that, because of the result of the hearing, two-thirds of the affected work unit must have voted in favor of the proposed AWS, Defendant does not suggest that this testimony collaterally estops or otherwise precludes Plaintiffs from contending otherwise. In any event, the testimony is not conclusive, especially in light of the following conflicting evidence from Defendant itself.
The record does not contain evidence of a case number or any ruling, only the recollection of Defendant's former human resources coordinator.
Second, the March 1991 minutes from Defendant's board of trustees meeting describes the proposed 9/80 AWS, explaining: "The Labor Board requires a ? vote of all employees before a work schedule change can be made." (Italics added.) This statement is unhelpful, since it merely describes Defendant's understanding, months before the election, of a condition or requirement for approval of the proposed 9/80 AWS, not the results of the election or the number of potentially affected employees. Moreover, this statement is inaccurate. Wage Order No. 4-89 requires a two-thirds majority "of the employees in the affected work unit" (former § 11040, subd. 3(B)); however, because the affected work unit did not include all employees (see fn. 12, ante), two-thirds of all employees does not necessarily include two-thirds of the affected employees.
Third, although the May 1991 minutes from Defendant's board of trustees meeting reflect the Defendant's conclusion following the election—namely, that "the employees voted for a 9/80 [alternative] work schedule"—we do not consider this evidence, because the trial court sustained Plaintiffs' evidentiary objection, and Defendant does not challenge that ruling on appeal. (See Code Civ. Proc., § 437c, subd. (c); Wilson, supra, 42 Cal.4th at p. 717.) In any event, without evidence of the number of employees in the affected work unit, Defendant's statement that certain unidentified employees voted in favor of the proposed 9/80 AWS is not evidence that two-thirds of the affected work unit approved it.
Fourth, the May 1991 memorandum from Defendant's assistant to the director (set forth above and quoted in part by Defendant to the trial court) provides: "The 9/80 work schedule passed by the required two-thirds majority in the Colton office (161 to 26) and in the San Bernardino office (19 to 9)." Again, however, we do not consider this evidence, because the trial court sustained Plaintiffs' evidentiary objection to this fact, and Defendant does not challenge that ruling on appeal. (See Code Civ. Proc., § 437c, subd. (c); Wilson, supra, 42 Cal.4th at p. 717.) In any event, with no indication from Defendant of the number of employees in the affected work unit, the number of votes and voters does not establish the requisite two-thirds majority of the affected employees.
Finally, we note that in the April 1991 memorandum to all staff—in which Defendant defined the potentially affected employees (see fn. 12, ante)—Defendant affirmatively, albeit mistakenly, represented that "[t]wo-thirds (?) of those voting must approve this new work schedule before it can be implemented." (Italics added.) A reasonable inference from this evidence, which we must accord Plaintiffs in our appellate review (see Code Civ. Proc., § 437c, subd. (c); Wilson, supra, 42 Cal.4th at p. 717), is that, following the election, Defendant implemented the new work schedule based on a two-thirds majority of those voting, not the required two-thirds of the affected work unit.
Very simply, there is no evidence—let alone uncontradicted evidence—that establishes the material fact that two-thirds of the affected unit approved the 9/80 AWS in the 1991 election. Thus, Defendant did not meet its initial burden of establishing, as a matter of law, its compliance with Wage Order No. 4-89 subdivision 3(B)'s requirements for lawfully adopting its 9/80 AWS. In concluding otherwise, the trial court erred, and we will reverse that portion of the judgment
In support of its motion Defendant presented considerable evidence and arguments as to its compliance with other requirements of Wage Order No. 4-89 subdivision 3(B), and in opposition to the motion Plaintiffs presented responsive evidence and arguments related to these other requirements. Because we do not reach those other arguments, we express no opinion as to substance of such evidence or the merits of such arguments.
In both the trial court and on appeal, Defendant also argued that, even if Defendant did not fully comply with the requirements of Wage Order No. 489 subdivision 3(B), Defendant's 9/80 AWS is nonetheless lawful based on what Defendant characterizes as a "grandfather clause" contained in Labor Code section 511, subdivision (f) (Stats. 1999, ch. 134, § 5). We disagree. Even if we assume that the exception or exemption contained in section 511, subdivision (f), could potentially apply to Defendant's 9/80 AWS, Defendant cannot establish its applicability on the present record. Like Wage Order No. 489 itself, before the exception or exemption in Labor Code section 511, subdivision (f) can apply, there must be a showing that the AWS at issue "was adopted by a twothirds vote of affected employees in a secret ballot election." (Lab. Code, § 511, subd. (f), italics added.) As we just concluded in the text, however, the record does not contain uncontradicted evidence of this material fact.
3. Plaintiffs Forfeited Appellate Review of the Trial Court's Denial of Their Motion for Summary Adjudication of Plaintiffs' First Cause of Action
On page 47 of their 48-page opening brief brief, as part of their formal "Conclusion," Plaintiffs present the following 20-word argument on an issue not otherwise mentioned in their brief: "Furthermore, the undisputed facts establish the illegality of [D]efendant's AWS; thus, [P]laintiffs' motion for summary adjudication should have been granted."
Significantly, this argument contains neither record references to Plaintiffs' motion or the evidence in support of the motion nor citations of legal authority in support of the motion. However, each point raised in an appellate brief must be supported "by argument and, if possible, by citation of authority" and by "reference to a matter in the record . . . where the matter appears." (Cal. Rules of Court, rule 8.204(a)(1)(B) & (C).) As here, where the brief raises a point but fails to support it " ' "with reasoned argument and citations to authority," ' " we deem the party to have forfeited appellate review of the point. (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956.)
To the extent Plaintiffs are relying on the presentation in their reply brief, such reliance is misplaced. On this record, we will not consider an argument that Plaintiffs failed to develop in their opening brief. (See Raceway Ford Cases (2016) 2 Cal.5th 161, 178 [appellate arguments raised for first time in reply brief "generally" not considered]; Supervalu, Inc. v. Wexford Underwriting Managers, Inc. (2009) 175 Cal.App.4th 64, 84, fn. 5 [point not presented in opening brief "abandoned or waived"].)
For these reasons, Plaintiffs forfeited appellate review of the trial court's order denying their motion for summary adjudication. B. That Portion of the Judgment Dismissing the Claims Related to the CSC Class Claims Is Affirmed
Plaintiffs expressly requested—and the trial court ordered—a dismissal of the second and third causes of action in their entirety and of the claims related to the CSC Class in the fourth, fifth, and sixth causes of action. In letter briefs concerning appellate jurisdiction, Plaintiffs and Defendant agreed and confirmed to this court: All dismissals are with prejudice and apply to both the individual and class claims.
In their briefs on appeal, Plaintiffs do not mention any potential error associated with these dismissals. For this reason, Plaintiffs have forfeited appellate review of the dismissals. (Tiernan v. Trustees of Cal. State University & Colleges (1982) 33 Cal.3d 211, 216, fn. 4 (Tiernan); Lyons v. Chinese Hospital Assn. (2006) 136 Cal.App.4th 1331, 1336, fn. 2 (Lyons).)
Additionally, since the dismissals were obtained at Plaintiffs' request, under the doctrine of invited error, Plaintiffs are " 'estopped' " from contending on appeal that the trial court erred in dismissing the claims related to the CSC Class. (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 403.) In Geffcken v. D'Andrea (2006) 137 Cal.App.4th 1298 (Geffcken), for example, following adverse evidentiary rulings during trial, plaintiffs' counsel said that " 'there's nothing left' " and submitted all of the issues for the court to determine whether judgment should be entered in favor of the defendants. (Id. at p. 1312.) On appeal, the plaintiffs contended that the trial court erred in entering a defense judgment on certain of the causes of action, because the evidentiary rulings were not dispositive of the claims in those causes of action. (Ibid.) Under these circumstances, the plaintiffs were "estopped from contending that the trial court erred," since their trial attorney had "invited" the entry of judgment. (Ibid.) Here, too, based on Plaintiffs' request to the trial court to dismiss all claims related to the CSC Class, Plaintiffs are estopped from contending the dismissals are somehow erroneous.
For the foregoing reasons, we will affirm that portion of the judgment dismissing all of the individual and class claims based on the CSC Class claims—i.e., the entirety of the second and third causes of action, and the claims related to the CSC Class in the fourth, fifth, and sixth causes of action. Based on the parties' written responses to this court's questions, in order to reflect Plaintiffs' counsel's intent at the time he requested the dismissals, we will direct the trial to enter an order nunc pro tunc to June 14, 2016, clarifying that the dismissals filed June 14, 2016, are with prejudice. C. That Portion of the Judgment in Favor of Defendant on the AW Class Claims in the First Cause of Action and Claims Related to the AW Class Claims in the Fourth, Fifth, and Sixth Causes of Action is Affirmed
Based on a stipulation between the parties, Plaintiffs expressly requested—and the trial court ordered—judgment in favor of Defendant on the "remaining AW[ C]lass claim" in the first cause of action and the "claims for penalties and damages related to the AW[ C]lass arising out of the" fourth, fifth, and sixth causes of action. The difference in the language used as to the first cause of action and the fourth through sixth causes of action emphasizes that Plaintiffs' request was directed to the class claim in the first cause of action and to both the individual and class claims in the fourth through sixth causes of action. Consistently, in their letter briefs to this court, Plaintiffs and Defendant agreed and confirmed that the judgment in favor of Defendant as to the fourth, fifth, and sixth causes of action included all claims unrelated to the CSC Class—namely, the claims by the Plaintiffs individually and on behalf of the AW Class. Any other interpretation would mean that the judgment was not final (and thus not appealable), because it would not have disposed of all claims between all parties. (See Code Civ. Proc., §§ 577 [a judgment is the "final determination of the the rights of the parties in an action"], 904.1, subd. (a)(1) [no appeal from an interlocutory judgment].)
The parties' stipulation is not in the record on appeal. In support of Plaintiffs' request to the trial court to enter judgment, Plaintiffs' counsel testified to such a stipulation. --------
As in part III.B., ante, the doctrines of forfeiture and estoppel apply to the AW Class claim in the first cause of action and the individual and class claims related to the AW Class in the fourth, fifth, and sixth causes of action. Thus, because Plaintiffs do not mention on appeal any potential error associated with the judgment on these claims, Plaintiffs have forfeited appellate review of this portion of the judgment. (Tiernan, supra, 33 Cal.3d at p. 216, fn. 4; Lyons, supra, 136 Cal.App.4th at p. 1336, fn. 2.) In addition, Geffcken, supra, 137 Cal.App.4th 1298, is directly on point: By requesting entry of judgment on various unlitigated claims (in the fourth, fifth, and sixth causes of action) based on a ruling in a different claim (in the first cause of action), Plaintiffs invited any error that might be associated with the requested relief and, accordingly, are estopped from contending this portion of the judgment is erroneous. (Id. at p. 1312.)
Accordingly, we will affirm the portions of the judgment in favor of Defendant on the AW Class claim in the first cause of action and on the individual and class claims related to the AW Class in the fourth, fifth, and sixth causes of action.
DISPOSITION
That portion of the judgment in favor of Defendant on Plaintiffs' individual claims in the first cause of action is reversed, and on remand the trial court is directed to vacate its July 11, 2013 minute order granting Defendant's motion summary adjudication as to Plaintiffs' first cause of action and enter an order denying the motion. In all other regards, the judgment—which (1) dismissed the second and third causes of action and the individual and class claims related to the CSC Class in the fourth, fifth, and sixth causes of action, and (2) was entered in favor of Defendant on the AW Class claim in the first cause of action and the individual and class claims related to the AW Class in the fourth, fifth, and sixth causes of action—is affirmed. The trial court is directed to enter an order nunc pro tunc to June 14, 2016, clarifying that all of the dismissals filed June 14, 2016, are with prejudice. Thus, on remand, all that will remain of Plaintiffs' complaint is Plaintiffs' individual claims in the first cause of action.
The parties shall bear their respective costs on appeal. (Cal. Rules of Court, rule 8.278 (a)(3), (5).)
IRION, J. WE CONCUR: BENKE, Acting P. J. O'ROURKE, J.