The opinion
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CLODOALDO ANTEMATE, CV 14-5255 DSF (RAOx)
Plaintiff,
FINDINGS OF FACT AND
v. CONCLUSIONS OF LAW
ESTENSON LOGISTICS, LLC,
Defendant.
After a bench trial on June 28, July 12, and November 7, 2018, and
having considered the parties’ post-trial submissions, the Court makes
the findings of fact and conclusions of law set forth below.1
1 Any finding of fact deemed to be a conclusion of law is incorporated into the
conclusions of law. Any conclusion of law deemed to be a finding of fact is
incorporated into the findings of fact.
FINDINGS OF FACT2
I. ESTENSON INFORMED CLASS MEMBERS OF THE
COMPANY’S VALID BREAK POLICIES.
A. Estenson Hung Posters Showing California’s Meal and
Rest Break Rules in Conspicuous Places at Its Locations
in California.
1. During the entire class period, Estenson posted copies of IWC
Wage Order No. 9, containing California’s meal and rest break
rules, at all its California locations. Tr. 279:2-280:5, 280:19-25.
2. At the Tracy facility, Estenson hung wage and hour posters
containing Wage Order No. 9 in the break room. Tr. 374:24-
375:3.
3. At the Lathrop facility, Estenson hung wage and hour posters
containing Wage Order No. 9 on a bulletin board in the break
area. Tr. 437:3-23.
B. Estenson Adopted an Express Meal and Rest Break Policy
Set Out in Its Employee Handbook.
4. During the relevant period, Estenson’s Employee Handbook
stated with respect to “Meal Periods” that “[a]ll ELC [Estenson
Logistics Company] employees are required by both law and
Company policy to take a meal period of at least thirty (30)
minutes in any workday that they work more than five (5)
hours. This meal period is to be observed before an employee’s
4.5 hour on any given shift. Employees who do not take a meal
break of at least thirty (30) minutes each day they work more
than five (5) hours may be subject to appropriate disciplinary
action.” Ex. 590 at 64-65.
2 Plaintiff submitted a “red-line” of Defendant’s proposed findings of fact and
conclusions of law indicating numerous disputes. Where the Court declined
to adopt one of the disputed facts, the Court found the fact was either
unsupported or irrelevant to its determination.
5. The Employee Handbook further stated that “[e]mployees are to
be completely relieved of their job responsibilities during their
meal periods. This means that you should not perform any work
during your meal period and should take all steps necessary to
ensure that you are not interrupted by any work tasks during
the meal period. Employees must record the exact begin and
end-time of their daily meal period(s) through use of the
timekeeping device in use for your position.” Ex. 590 at 64.
6. The Employee Handbook authorized second meal periods as
follows: “CALIFORNIA: Employees that work more than ten
(10) hours in a workday are required to take a second thirty (30)
minute uncompensated meal period unless they elect to waive
the second meal period.” Ex. 590 at 65.
7. With respect to rest breaks, the Handbook stated that:
“Employees are expected to schedule their 10-minute rest
periods at their own discretion under the guidelines of the
state’s labor laws for your site of origin. This information is
updated and posted at each location annually by the Human
Resource Department.” Ex. 590 at 64.
II. CLASS MEMBERS GENERALLY TOOK MEAL AND REST
BREAKS.
8. Plaintiff’s expert, Dr. Hunt, reviewed the time records of Class
Members and determined that Class Members completely
missed only 2.6% of possible meal breaks. Tr. 33:25-34:5.
9. Some of the meal breaks taken were short, but only by seconds.
10. For example, Dr. Hunt testified that Plaintiff experienced 79
short first meal breaks, but Plaintiff’s time records show that
each of these was late by fewer than 60 seconds.
11. Similarly, 19 meal breaks taken by Ontario Home Depot Class
Member Eric Fonseca during the 44 days of his employment
were “short,” but only by a matter of seconds.
III. NO EVIDENCE LINKED THE ALLEGED VIOLATIONS
THAT DR. HUNT COUNTED WITH UNIFORM POLICIES
OR PRACTICES THAT CAUSED CLASS MEMBERS TO
DELAY, SHORTEN, OR SKIP BREAKS.
A. The Work Experiences of Class Members Were Not
Uniform or Interchangeable.
12. While Class Members shared the same general job description,
their work experiences varied from day to day, shift to shift, and
location to location.
13. Between five and seven yard hostlers worked on a given shift at
the Tracy facility. Tr. 87:14-20 (Plaintiff testified that Tracy had
seven yard hostlers); Tr. 168:17-19 (Rodriguez testified there
were five); Tr. 197:20-25, 198:4-9 (Bough testified that there
were five hostlers at Tracy, but one of the five was assigned the
role of “pallet switcher.”).
14. The Lathrop facility had only one yard hostler working per shift,
but the site manager helped yard hostlers move trailers when
needed. Tr. 418:24-419:3, 438:22-24, 452:9-12.
15. The only trial witness who worked at a location other than
Tracy or Lathrop was Redlands yard hostler Kristy McMillian,
who worked at that location for only 18 days, didn’t recall the
names of any other yard hostlers she worked with, and had no
idea when they would have taken breaks. Tr. 540:20-24, 541:2-4,
544:8-12.
16. Plaintiff and his witnesses did not know why Class Members at
their own locations or at any other locations took breaks when
they did. Tr. 112:11-14, 121:11-12 (Plaintiff does not know
about break practices at other facilities); Tr. 213:23-214:10
(Maureen Bough does not know whether, when, or why other
yard hostlers took breaks when they did and has no knowledge
of other locations); Tr. 510:19-511:2, 520:1-17 (Chong Vue
doesn’t know when or why class members took breaks and “can’t
speak for them.”); Tr. 540:23-24, 544:8-12 (Kristy McMillian
worked at one location for 18 days and doesn’t know when class
members took breaks).
17. Witnesses disagreed about how their work was assigned at the
Tracy facility, with Plaintiff claiming he always kept his radio
on to receive assignments, Tr. 125:5-12, but Rodriquez testifying
that he turned his radio off during meal breaks, Tr. 154:18-21.
18. Similarly, Plaintiff said that Home Depot employees called him
on his radio about loads to be moved, Tr. 68:8-24, but McMillian,
who worked at the Redlands location, said Home Depot never
called her on her radio during breaks, Tr. 540:10-12.
19. At some Home Depot distribution centers, yard hostlers received
their trailer movement assignments through Home Depot’s
YMS. Tr. 313:3-11.
20. Home Depot’s YMS was not the same at each location. Tr.
435:25-436:11.
21. Class Members logged out of the YMS to take a meal break.
Tr. 100:22-25, Tr. 147:3-9, Tr. 200:8-10.
22. There was no evidence that Home Depot ever caused a Class
Member to delay, shorten, or skip a break.
B. Plaintiff Did Not Establish That the Pace and Amount of
Work Expected Prevented the Taking of Timely Meal
Breaks.
1. The Evidence of Work Rates Was Inconclusive.
23. Plaintiff claimed to have moved an average of 120 trailers per
day at 10 minutes per move. Tr. 64:3-6.
24. Estenson witnesses testified that moves took 4-6 minutes and
that hostlers would move only 50 trailers per shift. Tr. 314:14-
16, 320:3-5.
25. Neither of these estimates is persuasive. The estimates of
Plaintiff’s witnesses result in far more work than would be
possible during their shifts and the estimates of Estenson’s
witnesses result in hostlers who would be idle for much of their
shifts.
26. The true number of moves and the time per move is more likely
in between the numbers provided by the parties’ witnesses.
27. The hostlers were likely busy through most of their shifts, but
there was not so much work that they needed to work constantly
from the beginning to the end of their shifts.
2. Class Members Were Not Required to Wait Until All
Work Was Completed to Take Breaks, But Rather
Took Breaks at Times of Their Choosing.
28. Plaintiff’s witnesses testified that the workflow was steady
throughout the day and that there was no particularly good or
bad time to take breaks. Tr. 132:24-133:1, 213:23-24, 521:1-7,
547:7-548:9.
29. Plaintiff testified that yard hostlers would take meal breaks
when they were hungry, that he would sometimes take lunch
earlier, and sometimes later, after consulting with other yard
hostlers on his shift, and that some yard hostlers scheduled
their meal breaks concurrently. Tr. 110:11-17, 110:20-25, 111:1-
7.
30. Class Members were typically able to take breaks despite the
flow of work because other yard hostlers on their shifts would
cover the work flow. Tr. 157:22-158:6, 174:11-17, 175:13-18,
177:8-11, Tr. 507:19-23, Tr. 512:12-25, Tr. 521:1-7.
31. Former Lathrop site manager Mark Connacher testified that
the sole yard hostler working on each shift there has the
discretion to schedule breaks when it is convenient. Tr. 438:22-
24.
32. If it is busy at Lathrop when the yard hostler takes a break,
Home Depot must wait for the yard hostler to return from
lunch. Tr. 439:8-12.
33. No witness testified that he or she delayed, shortened, or missed
a break because of direct pressure to meet Home Depot’s on-
time delivery goal.
3. The Designation of Trailer-Moves As “Priority
Moves” Did Not Interfere With Meal or Rest Breaks.
34. The designation of a trailer-move as a “priority” changed only
the order of the trailer moves; it typically did not increase the
number of trailers moved during a shift or change the time it
took to move the trailers. Tr. 379:22-380:5.
35. Plaintiff’s witnesses confirmed that they could take breaks even
when work was coming in. Tr. 157:22-158:6, 175:13-18, 177:8-11
(other yard hostlers could cover incoming work while Rodriguez
was on a break); Tr. 521:1-7 (Vue could take breaks knowing
that other yard hostlers were on duty to handle any work that
might come in).
36. Priority moves became the next move to be made but priority
trailers typically did not have to be moved faster or differently
from other moves. Tr. 115:4-5, 116:18-117:2, Tr. 195:12-19.
C. There Was No Evidence That Estenson Caused Class
Members to Delay, Shorten, Or Skip Second Meal Breaks.
37. Class Members typically signed waivers signifying their
agreement to forgo their second meal breaks.
38. There was no evidence that the incidence of missed second meal
breaks resulted from job pressure rather than employee choice.
IV. THERE WAS NO RELIABLE EVIDENCE SHOWING
WHETHER AND WHEN CLASS MEMBERS TOOK REST
BREAKS OR WHY REST BREAKS WERE MISSED.
39. Plaintiff took 15-minute rest breaks, which he considered to be
only 10 minutes long, including the time it took him to drive his
yard goat to the break room. Tr. 118:16-119:10.
40. Plaintiff checked both the lunch and rest break boxes when he
took breaks. Tr. 84:14-22.
41. Rodriguez took 10-minute rest breaks. Tr. 154:25-155:1.
42. Sometimes Rodriguez chose to combine his 10-minute rest
breaks with his 30-minute meal break. Tr. 149:19-150:4.
43. Rodriguez never checked the break boxes on his trip sheets.
Tr. 179:7-19.
44. Bough checked break boxes on her trip sheets to indicate that
she took meal breaks, not rest breaks. Tr. 208:18-210:24.
45. Bough conceded that her trip sheets do not show whether she
took a rest break. Tr. 210:3-9.
46. Vue said he was trained to leave trip sheets blank so he never
filled them in if he took a break. Tr. 491:13-24.
47. Vue acknowledged that his trip sheets do not show whether he
took rest breaks. Tr. 524:25-525:2.
48. McMillian took 10-minute rest breaks every day. Tr. 548:13-20,
549:2-4.
49. This evidence shows that the rest break boxes on the trip sheets
are not a reliable record of whether each Class Member took
rest breaks.
50. Dr. Hunt added up alleged rest break violations by counting the
number of instances that boxes on trip sheets labeled “breaks”
were left unchecked. Tr. 34:19-35:5.
51. Given that the Class Members’ trip sheets are not a reliable
indication of whether and when they took or missed rest breaks,
Dr. Hunt’s calculation of the number of rest breaks Class
Members missed during the class period is also not reliable.
52. Plaintiff also presented no class-wide evidence explaining why
Class Members missed rest breaks beyond testimony that the
yard hostlers were generally busy.
53. As with the meal breaks, Plaintiff failed to establish that the
hostlers were so busy throughout their shifts that rest breaks
could not be taken.
CONCLUSIONS OF LAW
I. CLASS CERTIFICATION FOR LOCATIONS OTHER THAN
TRACY IS NOT APPROPRIATE
1. The vast majority of evidence at trial involved operations at
Tracy warehouse. Plaintiff has not established that practices at
other locations were substantially similar, especially in light of
Plaintiff’s theory of the case.
2. Evidence was presented by multiple witnesses concerning the
Lathrop facility but (1) Lathrop used only a single hostler per
shift and was therefore materially dissimilar from Tracy, and (2)
there are insufficient Lathrop hostlers to satisfy the numerosity
requirement on their own.
3. The only witness from the Redlands location worked there for
only 18 days. The witness’s testimony suggested that Redlands
procedures may have differed from those at Tracy. In any event,
there is insufficient evidence that Redlands yard hostlers should
be grouped with Tracy yard hostlers for the purposes of this
litigation.
4. Given these conclusions, the Court decertifies the class for all
locations other than Tracy.
II. PLAINTIFF FAILED TO PROVE HIS CLASSWIDE MEAL
AND REST BREAK CLAIMS.
A. It Is Plaintiff’s Burden to Prove Estenson Caused the
“Violations” Dr. Hunt Tabulated.
5. A California employer “shall not employ an employee for a work
period of more than five hours per day without providing the
employee with a meal period of not less than 30 minutes.” Cal.
Lab. Code § 512.
6. Employees who work more than ten hours must be provided a
second 30-minute meal break. Id.
7. These breaks do not qualify as on-duty work time if the
employee is relieved of all duty during the period. Cal. Code
Regs. tit. 8, § 11090(11)(C) (Wage Order No. 9).
8. If an employer “fails to provide an employee a meal or rest or
recovery period” in accordance with the above rules, the
employer is liable for what has become known as premium pay,
i.e., “one additional hour of pay at the employee’s regular rate of
compensation for each workday that the meal or rest or recovery
period is not provided.” Cal. Lab. Code § 226.7 (“Section 226.7”).
9. Employers are obligated only to make meal and rest breaks
available to employees; they owe penalties for failing to do so
only if they have impeded or prevented employees from taking
breaks. Brinker Restaurant Corp. v. Superior Court, 53 Cal. 4th
1004 (2012).
10. An employer satisfies its obligation to provide meal breaks when
it “relieves its employees of all duty, relinquishes control over
their activities and permits them a reasonable opportunity to
take an uninterrupted 30-minute break, and does not impede or
discourage them from doing so.” Id. at 1040.
11. Rest breaks are governed by the same standard as meal breaks,
except that employers have more flexibility as to the timing of
the breaks. Id. at 1031-32.
12. Plaintiff was required to prove Estenson caused any alleged
violation for which the Class sought recovery by establishing a
causal connection between policies or practices that applied to
all Class Members and the short, delayed, or missed breaks for
which they seek premium pay under Section 226.7.
B. Estenson Maintained Meal and Rest Break Policies
Consistent With California Law and Advised Class
Members of Those Policies.
13. The meal and rest break policies set out in Estenson’s Employee
Handbook are consistent with the requirements of California’s
meal and rest break rules.
14. Estenson also posted notice of California’s break laws and
regulations. See Cal. Lab. Code § 1183(d).
15. There was no evidence that any Class Member delayed,
shortened, or missed a meal or rest break because of any alleged
defect in Estenson’s meal and rest break policies.
16. Estenson had no obligation to ensure that Class Members
actually take the meal and rest breaks provided under the
company’s policies. See Brinker, 53 Cal. 4th at 1040-41
(rejecting the “ensure” standard).
C. The Reasons Class Members Delayed, Shortened, Or
Missed Meal Breaks Cannot Be Inferred From Break
Records Alone.
17. That Class Members sometimes delayed, shortened, or missed
meal breaks does not prove break claims on either an individual
or classwide basis because mere records of late, short, or missed
breaks say nothing about why the breaks were late, short, or
missed.
18. Neither the rate at which Class Members, on average, delayed,
shortened, or skipped their breaks, nor the fact that some Class
Members did so at relatively high rates, gives rise to an
inference that Estenson caused those breaks to be late, short, or
missed.
19. Dr. Hunt’s review of the Class Members’ time records shows
that while some Class Members had a large proportion of breaks
that were late, short, or missed, others had few of these, with
the lowest “violation” rates ranging from zero and the single
digits.
20. Moreover, that many of the “short” breaks Dr. Hunt
characterized as “violations” were short by a minute or two or,
as was often the case, a matter of mere seconds, suggests that
Class Members most likely just clocked in slightly early as
opposed to having been forced to cut breaks short.
21. Proof that workers are busy throughout the day is not
necessarily evidence that they have been deprived of meal and
rest breaks without evidence that the workers were required to
be so busy that they could not reasonably be expected to take
breaks.
D. Causation Cannot Be Presumed.
22. The Court has previously rejected the application of Justice
Werdegar’s concurrence that would presume that every break
recorded as late, short, or missed was late, short, or missed
because of the employer’s conduct. See Order Denying
Defendant’s Motion in Limine No. 4 at 2 (Dkt. no. 186).
23. The Court sees no reason to change its previously stated view
that “[i]mposing the [Werdegar] evidentiary presumption would
undermine Brinker’s holding – namely, that employers are not
obligated to police or enforce breaks. For all practical purposes,
imposition of a rebuttable presumption would require employers
to police breaks or risk liability, a burden expressly rejected in
Brinker.” Id.
E. The Absence of Reliable, Quantitative Evidence of
Whether and When Class Members Took Rest Breaks is a
Separate Reason to Reject Plaintiff’s Rest Break Claim.
24. In addition to providing meal breaks, California employers must
“authorize and permit all employees to take rest periods, which
insofar as practicable shall be in the middle of each work
period.” Cal. Code Regs. tit. 8, § 11090(12)(A).
25. Rest break time counts as hours worked. Id.
26. As stated earlier, the Class Members’ trip sheets are not a
reliable indication of whether and when they took or missed rest
breaks.
27. Therefore, Dr. Hunt’s calculation of the number of rest breaks
Class Members missed during the class period is also not
reliable.
28. Further, Plaintiff also presented no evidence for the Class
explaining why Class Members missed rest breaks beyond
testimony that the yard hostlers were generally busy.
29. Given those facts, there is insufficient evidence to conclude that
Estenson failed to authorize and permit the rest breaks Dr.
Hunt identified as violations.
III. PLAINTIFF FAILED TO PROVE HIS CLASSWIDE
DERIVATIVE CLAIMS.
A. Class Members Are Not Entitled to Section 203 Late Wage
Payment Penalties.
30. Plaintiff seeks penalties under Cal. Labor Code § 203, claiming
Estenson failed to timely pay him meal and rest break
premiums and that these premiums constitute wages that
should have been paid on the termination of his employment.
31. To prove Class Members are entitled to waiting time penalties
under Section 203, Plaintiff must prove, among other things,
that (1) Estenson failed to pay the employee all wages due on
the date that the employee’s employment ended, and
(2) Estenson’s failure to pay those wages was willful. Cal. Lab.
Code § 203.
32. Plaintiff’s Section 203 claim fails because Plaintiff has not
demonstrated that Estenson owed formerly-employed Class
Members meal and rest break premiums at the time their
employment with Estenson ended.
B. Class Members Are Not Entitled to Section 226 Penalties.
33. Plaintiff contends that his pay statements violated Cal. Labor
Code § 226 because they failed to show that he received
premium pay for meal and rest break violations.
34. Plaintiff’s claim for Section 226 penalties fails because Plaintiff
has not demonstrated that Estenson owed Class Members the
meal and rest break premiums he claims should have been
itemized on their wage statements. Plaintiff’s UCL claim is
derivative of his other claims.
35. Plaintiff’s claim for restitution under the Unfair Competition
Law is entirely derivative of his meal and rest break claims and
fails along with them.
IV. PLAINTIFF FAILED TO PERSUADE THE COURT THAT HE
SHOULD SUCCEED ON HIS INDIVIDUAL CLAIMS
36. While Plaintiff directly testified that his meal breaks were cut
short on many occasions and that he missed rest breaks on
many occasions, the persuasiveness of those claims rests on the
premise that Plaintiff was too busy to take his full breaks and
that the required pace of work amounted to a failure to provide
breaks.
37. As discussed above, the Court is not convinced the amount of
work hostlers were expected to perform amounted to a de facto
failure to provide meal and rest breaks.
38. While Plaintiff may have skipped rest breaks or cut meal breaks
short from time to time, the weight of the evidence shows that
the facilities were not so busy as to prevent hostlers from taking
full meal and rest breaks. This is especially true because there
were at all times multiple hostlers on duty at Tracy to cover any
urgent trailer moves.
39. In other words, the Court is not convinced that acts by Estenson
were inconsistent with providing breaks.
40. And while Plaintiff may have felt pressure to complete tasks
instead of taking full breaks, the Court finds that it is more
likely that such pressure was due to Plaintiff's own diligence
and good work ethic than being forced — or even encouraged — by
Estenson to cut breaks.
41. As with the Class, Plaintiffs derivative claims under California
Labor Code §§ 208 and 226 fail along with his main meal and
rest break claims.
IT IS SO ORDERED.
/ □ ( ) To }
Date: September 25, 2019 Aioe A. □□□
Dale S. Fischer
United States District Judge
15