The opinion
Filed: 8/13/21 (unmodified opn. attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
ROSALINDA ZUNIGA, B297023
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC529776)
v.
ORDER MODIFYING OPINION
ALEXANDRIA CARE CENTER, (NO CHANGE IN THE
LLC et al., APPELLATE JUDGMENT)
Defendants and Respondents.
THE COURT:
It is ordered that the opinion filed herein on August 12,
2021 be modified as follows:
On page 20, replace Salazar v. See’s Candy Shops, Inc.
(2021) 64 Cal.App.5th 85, 90 with Donohue v. AMN Services, LLC
(2021) 11 Cal.5th 58, 65.
There is no change in the appellate judgment.
____________________________________________________________
PERLUSS, P. J. SEGAL, J. FEUER, J.
Filed 8/12/21 (unmodified version)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
ROSALINDA ZUNIGA, B297023
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC529776)
v.
ALEXANDRIA CARE CENTER,
LLC, et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Elihu M. Berle, Judge. Reversed and
remanded.
Matern Law Group, Matthew J. Matern, Dalia Khalili and
Andrew J. Sokolowski for Plaintiff and Appellant.
Littler Mendelson, Curtis A. Graham and James Payer for
Defendants and Respondents Alexandria Care Center, Skilled
Healthcare, LLC and Skilled Healthcare Group, Inc.
______________________
Rosalinda Zuniga appeals the judgment in favor of
Alexandria Care Center, LLC, Skilled Healthcare, LLC and
Skilled Healthcare Group, Inc. (collectively Alexandria Care)
entered after a five-day bench trial of her representative claim for
penalties under the Labor Code Private Attorneys General Act of
2004 (PAGA) (Lab. Code, § 2698 et seq.).1 Zuniga contends the
trial court erred in excluding the testimony of her two proposed
expert witnesses, Dean Van Dyke and Richard Drogin, Ph.D., and
the spreadsheets prepared by Van Dyke’s company, iBridge LLC,
which provided the basis for Dr. Drogin’s opinions establishing
Alexandria Care’s Labor Code violations. We agree the court
erred in excluding the expert testimony of Dr. Drogin even if the
iBridge spreadsheets lacked the foundation necessary to be
admitted into evidence, and the error was prejudicial. The
judgment is reversed, and the cause remanded for a new trial.
FACTUAL AND PROCEDURAL BACKGROUND
1. Zuniga’s Complaint and Settlement of Her Individual
Claims
Zuniga, employed by Alexandria Care as a housekeeper
from 2006 through 2012, filed a complaint on December 6, 2013
asserting claims on behalf of herself and a putative class of
current and former nonexempt employees of Alexandria Care for
violations of various provisions of the Labor Code and the
governing Industrial Welfare Commission wage order, including
failure to provide required meal periods, failure to provide
required rest periods, failure to indemnify employees for
necessary expenditures incurred in the discharge of their duties
1 Statutory references are to this code unless otherwise
stated.
2
and failure to maintain required records. She also asserted a
cause of action for unfair and unlawful business practices in
violation of Business and Professions Code section 17200 on
behalf of herself and the putative class and a representative
action for civil penalties under PAGA. The PAGA claim
identified six categories of violations: Failure to compensate
employees for missed meal periods; failure to properly
compensate for overtime; failure to pay the minimum wage;
failure to maintain records for employees; failure to provide
employees with accurate itemized wage statements; and failure
to pay all wages due. Prior to filing her lawsuit, Zuniga gave
notice to Alexandria Care and the Labor Workforce Development
Agency (LWDA) of the alleged Labor Code and wage order
violations at issue. The LWDA advised Zuniga it did not intend
to investigate the allegations.
The trial court granted Alexandria Care’s motion to compel
arbitration of Zuniga’s individual claims on May 20, 2014. The
PAGA claim was stayed. On February 1, 2016 the parties settled
Zuniga’s individual claims. The PAGA claim was not part of the
settlement. The court lifted its stay and ultimately scheduled a
bench trial on the PAGA claim for November 26, 2018.
2. Zuniga’s Trial Plan, Expert Witnesses and Proposed
Trial Exhibits 5, 6 and 7
Zuniga intended to prove her PAGA claim through her own
testimony; the testimony of Alexandria Care’s corporate person-
most-knowledgeable designee, Sherry Ann Alvarez, and its
former administrator, Holly Ianieri; the expert opinion testimony
of Dr. Drogin, who performed statistical analyses of Alexandria
Care’s timekeeping and payroll records; and the testimony of
Van Dyke regarding the conversion of Alexandria Care’s records,
3
produced in discovery in portable document format (PDF) and
admitted into evidence as exhibits 2, 3 and 4, into computer-
readable spreadsheets (Excel) by iBridge, which were marked as
trial exhibits 5, 6 and 7.
a. Van Dyke’s video deposition
At the final status conference on October 29, 2018, the trial
court ordered Zuniga to serve her expert witness reports no later
than November 9, 2018 and to produce her experts for deposition
no later than November 16, 2018. Various problems arose in
scheduling Van Dyke’s deposition, including a delay caused by
Zuniga’s failure to timely produce all the converted spreadsheets
created by iBridge upon which Dr. Drogin relied for his opinions.
Van Dyke ultimately sat for a videotaped deposition on
November 29, 2018, several days after trial began.2 Because of a
long-planned European vacation, Van Dyke was not available to
testify in person when trial resumed the following week.
At his deposition Van Dyke, a vice president of iBridge
“responsible for sales, business development, and the operational
aspects of the projects to make sure that they’re delivered from
our teams in India,” testified he had a “general management” role
at iBridge and in creating the spreadsheets provided to
Dr. Drogin for his analysis in this case. Elaborating, Van Dyke
explained he assists in defining the scope of client projects, works
with clients to ensure the iBridge team understands the project
requirements and follows up with the client to confirm the project
has been successfully delivered.
2 The deposition transcript was admitted into evidence for
the limited purpose of considering the admissibility of Van Dyke’s
deposition testimony at trial.
4
Van Dyke is neither a statistician nor a computer engineer.
He did not participate in converting the documents Zuniga
provided into electronic spreadsheets; he sent the material to
India for conversion, together with the project guidelines
prepared by counsel. Van Dyke did not communicate
substantively with the data analysts who performed the data
conversion and prepared the spreadsheets, did not validate the
data conversion’s accuracy and was not involved in the quality
control process.
When questioned by Zuniga’s counsel, Van Dyke,
apparently referring to (or reading from) a document in front of
him, described the process used by iBridge to convert data from
PDF to electronic format. The company uses “double blind data
entry, which consists of two data operators entering the same
data.” The two data sets are compared and cross-referenced to
detect errors. Van Dyke testified the double-entry system yields
a 99.9 percent accuracy rate. To verify accuracy iBridge reviews
60 percent of the data on a page-by-page basis, comparing the
original material to its converted format; a further review
compares an additional sample of 30 percent of the data. Van
Dyke also testified that iBridge has obtained an ISO 9001
certification for data processing and document imaging services,
based on independent audit teams confirming the quality control
processes iBridge describes have actually been implemented.
b. Dr. Drogin’s expert testimony
Dr. Drogin, a professor emeritus of statistics at California
State University, Hayward, analyzed the timekeeping and
payroll data contained in the iBridge spreadsheets as it related to
Zuniga’s claims that Alexandria Care failed to compensate
employees for missed meal breaks and that Alexandria Care’s
5
rounding policy resulted in underpayment of wages earned.
Dr. Drogin was deposed on November 20, 2018 and initially
testified in court on November 27, 2018, the second day of trial.
Alexandria Care did not challenge Dr. Drogin’s qualifications as
an expert witness.
When initially retained in the case, Dr. Drogin advised
Zuniga’s counsel to have the timekeeping and payroll records
produced by Alexandria Care in PDF-format entered into a
computer so they could be analyzed. He subsequently performed
his analysis using Excel spreadsheets prepared by iBridge,
exhibits 5, 6 and 7.
Dr. Drogin testified his consulting firm had recommended
using iBridge in a number of cases in which information had been
obtained in paper-copy format and needed to be entered into a
computer to produce computer-readable documents, such as
Excel. He estimated he had relied upon iBridge-produced data in
10 to 15 cases and felt comfortable using its work product based
on conversations he had in the past with iBridge personnel who
supervised the data entry. According to Dr. Drogin, he “found
that they use fairly reliable data quality control techniques to
make sure the data is entered accurately.” Asked specifically
about double-blind data entry, Dr. Drogin testified it ensures an
extremely high level of accuracy of the product, which he
recommends should be used: “In my experience, the data is
nearly perfect or there may be some random error here and there.
Generally speaking, you get extremely accurate results.” Asked
if he often relies on data developed through that method in his
work, Dr. Drogin replied, “Yes, I have in the past. I’ve done that.
I believe they did that in this case.”
6
On cross-examination Dr. Drogin acknowledged he needed
the iBridge data compilation to conduct his analysis and
confirmed he had not spoken to anyone at iBridge, including
Van Dyke, with respect to the data provided to him for Zuniga’s
case. Defense counsel then asked, “You don’t know if a double
blind data entry was done with respect to the data in this case, do
you?” Dr. Drogin replied, “I don’t know that from talking to [Van
Dyke], no.” However, when asked by Alexandria Care’s counsel,
“Did you do anything to validate the PDF spreadsheet that was
given to you?” Dr. Drogin responded, “I did some comparison of
the PDF’s to the spreadsheet that I was given. They appeared to
be the same.”
3. The Court’s Evidentiary Rulings
During the first three days of trial, November 26, 27 and
28, 2018, the court heard testimony from Zuniga, Dr. Drogin,
Alvarez and Ianieri. When trial resumed on December 3, 2018
Zuniga sought to introduce Van Dyke’s videotaped deposition
testimony; Alexandria Care objected. The court directed the
parties to brief the testimony’s admissibility by the following
morning. In making its order, the court observed that, in
addition to the procedural issues regarding the admissibility of
Van Dyke’s deposition testimony, it was concerned about its
substance: “The question is whether there is sufficient
foundation for Mr. Van Dyke’s testimony because without the
foundation for Mr. Van Dyke’s testimony, then Mr. Drogin
doesn’t have foundation for his testimony.”
On December 4, 2018, after hearing argument of counsel,
the court ruled that Van Dyke was not qualified as an expert to
testify about computer data processing: “He doesn’t have the
education or the background. He doesn’t have the experience or
7
the training in data processing in the conversion of information
from raw data to spreadsheets.” The court excluded Van Dyke’s
testimony.
The court additionally ruled Van Dyke had not provided
the necessary foundation for the iBridge spreadsheets and
excluded exhibits 5, 6 and 7. The court noted, “He himself is not
involved in the process. He did not supervise the process. He did
not review the process. Did not direct the process. He did not
verify the process or review the accuracy of the process.”
At this point Zuniga sought to recall Dr. Drogin to testify
concerning Dr. Drogin’s independent verification of the accuracy
of the iBridge data conversion spreadsheets, based on an analysis
done on November 30, 2018, following Dr. Drogin’s initial trial
testimony and Alexandria Care’s challenge to the foundation for
exhibits 5, 6 and 7. The court permitted the testimony subject to
Alexandria Care’s objection and motion to strike.
Dr. Drogin explained he took a random sample of 50 pages
from the raw data PDF-document production (exhibit 2),
examined every line (1,000 total rows of data), compared the
information to that in the iBridge spreadsheets and found no
errors. He testified his sample generated a 99.7 percent
confidence interval. In response to the court’s question why
Dr. Drogin had not verified that the data in the iBridge
spreadsheets accurately reflected the raw data in the documents
produced by Alexandria Care prior to his deposition, Dr. Drogin
responded, “Because I was assuming that I would be able to rely
on the accuracy of the company, iBridge, which entered the data.
I’ve had, I’ve been, I’ve worked with them before . . . .”
Dr. Drogin subsequently added that, because he knew iBridge
was ISO certified, he understood it had actually used the double-
8
blind data entry procedure when creating the spreadsheets upon
which he based his trial testimony.
After Dr. Drogin completed his additional testimony, the
court granted Alexandria Care’s motion to strike on the ground
the opinions had not been disclosed during his deposition and the
analysis was undertaken after his deposition and his trial
testimony. Under the circumstances, the court stated, “it would
be unjust, in violation of the rules of evidence and the rules of
procedure to allow the testimony to stand.”
Following the court’s evidentiary rulings, Zuniga rested her
case. Indicating it intended to file a motion for judgment
pursuant to Code of Civil Procedure section 631.8, Alexandria
Care also rested. Alexandria Care filed its motion, and the court
set a further briefing and hearing schedule.
4. The Trial Court’s Order Granting Alexandria Care’s
Motion for Judgment; the Statement of Decision
After further argument on January 30, 2019, the court
granted Alexandria Care’s motion for judgment. The court
memorialized its reasoning in a statement of decision filed
March 18, 2019.
The statement of decision summarized the court’s rulings
regarding Zuniga’s expert witnesses, explaining it had found
Van Dyke was not qualified as an expert to testify about
computer data processing and had not provided the necessary
foundation for the spreadsheets created by iBridge. In a footnote
the court stated Zuniga’s failure to adhere to the required
procedures to have Van Dyke testify through his deposition
rather than at trial constituted an additional ground for
excluding the testimony and the spreadsheets. As for Dr. Drogin,
“At trial, Dr. Drogin confirmed that his opinions were based
9
entirely on the spreadsheets created by iBridge. Accordingly,
based on the exclusion of Mr. Van Dyke’s testimony and the
iBridge spreadsheets from evidence, the Court ruled that
Dr. Drogin’s testimony was without any foundation and would
not be considered.”
In light of the exclusion of Zuniga’s experts and the iBridge
spreadsheets, Zuniga’s evidence of Labor Code violations
consisted of her own testimony, the two fact witnesses she called
during her case-in-chief and Alexandria Care’s records. Based on
that evidence and its assessment of the credibility of the
witnesses, the court found that Zuniga had “failed to meet her
burden to establish by a preponderance of the evidence that
(1) she was an aggrieved employee and (2) she or any other
employees suffered any of the below Labor Code violations.”
The statement of decision briefly identified the elements of
the alleged Labor Code violations and found, as to her meal break
and rest break claims, Zuniga had not provided credible
testimony concerning any instances during the PAGA period in
which she or other employees were not provided or permitted to
take compliant breaks. As to her claims regarding unpaid time
based on Alexandria Care’s rounding policy, the court ruled that
using such a policy was not unlawful3 and found the evidence
3 Earlier this year the Supreme Court in Donohue v. AMN
Services, LLC (2021) 11 Cal.5th 58, 61 held “employers cannot
engage in the practice of rounding time punches—that is,
adjusting the hours that an employee has actually worked to the
nearest preset time increment—in the meal period context.”
Noting that state and federal courts have applied the neutrality
test described in See’s Candy Shops, Inc. v. Superior Court (2012)
210 Cal.App.4th 889 to determine whether various rounding
policies are valid under California law—the approach used by the
10
confirmed Zuniga had been compensated for all hours worked
during the PAGA period. Additionally, Zuniga had provided no
admissible evidence that she or other employees worked off the
clock during the PAGA period or that Alexandria Care
maintained an unlawful preapproved overtime policy that
resulted in a failure to pay employees any wages they had
earned.
Zuniga’s claims regarding failure to maintain required
employee records and to provide accurate itemized wage
statements, the court concluded, were derivative of her meal
period, rest period and unpaid overtime and minimum wage
claims and, therefore, also lacked merit. To the extent not
derivative of her other claims, Zuniga had presented no credible
evidence of any violation. Finally, the court found Zuniga had
failed to establish that Alexandria Care did not indemnify her or
any other employees for any necessary expenditures incurred in
the discharge of their duties.
Judgment was entered on March 18, 2019. Zuniga filed a
timely notice of appeal.
DISCUSSION
1. PAGA: A Brief Overview
As the Supreme Court explained last year in Kim v. Reins
International California, Inc. (2020) 9 Cal.5th 73 (Kim), PAGA
was enacted to facilitate broader enforcement of provisions of the
Labor Code intended to protect the health, safety and
compensation of workers. (Id. at pp. 80-81.) Under PAGA an
trial court in the case at bar—the Supreme Court observed, “This
court has never decided the validity of the rounding standard
articulated in See’s Candy I, and we are not asked to do so here.”
(Donohue, at p. 72.)
11
employee may seek civil penalties for Labor Code violations
committed against her and other aggrieved employees by
bringing, on behalf of the state, a representative action against
her employer. (Id. at p. 81; ZB, N.A. v. Superior Court (2019)
8 Cal.5th 175, 181.)
The Kim Court emphasized a PAGA claim “is legally and
conceptually different from an employee’s own suit for damages
and statutory penalties. An employee suing under PAGA ‘does so
as the proxy or agent of the state’s labor law enforcement
agencies.’ [Citation.] Every PAGA claim is ‘a dispute between an
employer and the state.’ [Citations.] Moreover, the civil penalties
a PAGA plaintiff may recover on the state’s behalf are distinct
from the statutory damages or penalties that may be available to
employees suing for individual violations. [Citation.] Relief
under PAGA is designed primarily to benefit the general public,
not the party bringing the action. [Citations.] ‘A PAGA
representative action is therefore a type of qui tam action,’
conforming to all ‘traditional criteria, except that a portion of the
penalty goes not only to the citizen bringing the suit but to all
employees affected by the Labor Code violation.’ [Citation.] The
‘government entity on whose behalf the plaintiff files suit is
always the real party in interest.’” (Kim, supra, 9 Cal.5th at
p. 81.)
2. Zuniga Had Standing To Assert a PAGA Claim as an
“Aggrieved Employee”
“Not every private citizen can serve as the state’s
representative. Only an aggrieved employee has PAGA standing.
[Citations.] An ‘aggrieved employee’ is defined [in section 2699,
subdivision (c),] as ‘any person who was employed by the alleged
12
violator and against whom one or more of the alleged violations
was committed.’” (Kim, supra, 9 Cal.5th at pp. 81-82.)
In addition to ruling that Zuniga had failed to carry her
burden of proving she or other employees had suffered any Labor
Code violations, the trial court appeared to find, as an alternate
ground for granting judgment in favor of Alexandria Care, that
Zuniga lacked standing to assert a PAGA claim as an aggrieved
employee. Indeed, Alexandria Care in its respondent’s brief
argues any error in excluding expert evidence was harmless
because Zuniga failed to establish her standing as an aggrieved
employee under PAGA “in the first place.”4
The Supreme Court’s opinion in Kim, supra, 9 Cal.5th 73,
decided a year after judgment was entered in the trial court,
makes clear the trial court’s ruling was based on an incorrect
understanding of section 2699, subdivision (c)’s standing
requirement and, in particular, whether the PAGA plaintiff need
only allege she had suffered an applicable Labor Code violation or
must prove she suffered actual injury as a result of the violation.
The plaintiff in Kim sued his employer in a putative class
action, claiming he and other “training managers” had been
misclassified as exempt employees. The operative complaint
alleged causes of action for failure to pay wages and overtime,
failure to provide meal and rest breaks, failure to provide
accurate wage statement, waiting time penalties and unfair
competition. It also sought civil penalties under PAGA. (Kim,
4 Alexandria Care’s suggestion at oral argument that the
issue of standing is not properly before us because not raised in
Zuniga’s opening brief, is, of course, belied by this contention that
Zuniga’s purported lack of standing renders harmless any errors
made by the trial court.
13
supra, 9 Cal.5th at p. 82.) Kim’s individual claims were ordered
to arbitration; his class claims were dismissed; and the PAGA
cause of action was stayed. (Ibid.)
Kim settled his individual claims, and the stay of the PAGA
cause of action was lifted. The employer’s motion for summary
adjudication on the ground Kim lacked standing was granted,
and the judgment was affirmed on appeal. The Supreme Court
reversed, holding, “The plain language of section 2699(c) has only
two requirements for PAGA standing. The plaintiff must be an
aggrieved employee, that is, someone ‘who was employed by the
alleged violator’ and ‘against whom one or more of the alleged
violations was committed.’ (§ 2699(c).) Both requirements derive
from readily ascertainable facts, and both are satisfied here. Kim
was employed by Reins and alleged that he personally suffered at
least one Labor Code violation on which the PAGA claim is based.
Kim is thus an ‘aggrieved employee’ with standing to pursue
penalties on the state’s behalf.” (Kim, supra, 9 Cal.5th at pp. 83-
84.)
As the Kim Court explained, “The Legislature defined
PAGA standing in terms of violations, not injury. Kim became an
aggrieved employee, and had PAGA standing, when one or more
Labor Code violations were committed against him. [Citation.]
Settlement did not nullify these violations. The remedy for a
Labor Code violation, through settlement or other means, is
distinct from the fact of the violation itself. . . . [¶] Further,
Reins’s assertion that a PAGA plaintiff is no longer ‘aggrieved’
once individual claims are resolved is at odds with the
Legislature’s explicit definition. Section 2699(c) defines an
‘aggrieved employee’ as ‘any person who was employed by the
alleged violator and against whom one or more of the alleged
14
violations was committed.’ It does not require the employee to
claim that any economic injury resulted from the alleged
violations. . . . Reins’s use of ‘aggrieved’ as synonymous with
having an unredressed injury is at odds with the statutory
definition. [¶] Reins’s interpretation would add an expiration
element to the statutory definition of standing. It would expand
section 2699(c) to provide that an employee who accepts a
settlement for individual damage claims is no longer aggrieved.
Of course, the Legislature said no such thing.” (Kim, supra,
9 Cal.5th at pp. 84-85; see Johnson v. Maxim Healthcare Services,
Inc. (July 21, 2021, D077599) __ Cal.App.5th __ , __ [2021
Cal.App. Lexis 594 [p. 8] [“[t]he fact that Johnson’s individual
claim may be time-barred does not nullify the alleged Labor Code
violations nor strip Johnson of her standing to pursue PAGA
remedies”].)
Zuniga’s status was identical to Kim’s. She was employed
by Alexandria Care and alleged she had personally suffered at
least one Labor Code violation on which the PAGA claim was
based. Her individual clams were settled after arbitration had
been ordered. Whether or not she had any unredressed injuries
following that settlement, she, like Kim, was an “aggrieved
employee” with standing to pursue penalties on the state’s behalf.
3. The Trial Court Did Not Abuse Its Discretion in
Excluding the iBridge Spreadsheets
Although the trial court refused to permit Zuniga to
introduce Van Dyke’s deposition testimony at trial, it separately
determined his testimony failed to provide the necessary
foundation for the spreadsheets created by iBridge and used by
Dr. Drogin for his analysis of Zuniga’s PAGA claim. The court’s
exclusion of the iBridge spreadsheets did not constitute an abuse
15
of discretion. (See People v. Nieves (2021) 11 Cal.5th 404, 445
[“‘[w]e review a trial court’s decision to admit or exclude evidence
“for abuse of discretion”’”]; People v. Thompson (2016) 1 Cal.5th
1043, 1120 [as a general matter appellate courts “apply ‘the
abuse of discretion standard of review to any ruling by a trial
court on the admissibility of evidence’”].)5
The iBridge spreadsheets are writings within the meaning
of Evidence Code section 250. As such, for them to be admissible,
Zuniga needed to introduce evidence sufficient to sustain a
finding that they, in fact, accurately reflected the conversion into
a computer-readable form of the PDF timekeeping and payroll
records provided by Alexandria Care. (Evid. Code, §§ 1400
[“[a]uthentication of a writing means (a) the introduction of
evidence sufficient to sustain a finding that it is the writing that
the proponent of the evidence claims it is or (b) the establishment
of such facts by any other means provided by law”], 1401,
subd. (a) [“[a]uthentication of a writing is required before it may
be received in evidence”]; see People v. Goldsmith (2014)
59 Cal.4th 258, 266 [“[t]o be admissible in evidence, a writing
must be relevant and authenticated”].) “Authentication is to be
determined by the trial court as a preliminary fact.” (Goldsmith,
at p. 266; see also id. at p. 267 [“The purpose of the evidence will
determine what must be shown for authentication, which may
5 The sole purpose of Van Dyke’s deposition testimony was to
provide the foundation for the iBridge spreadsheets. Because the
trial court properly excluded the spreadsheets after considering
Van Dyke’s testimony, we need not address its rulings that
Van Dyke was not qualified to testify as a data processing expert
or that Zuniga had not complied with the required procedures for
introduction of his deposition testimony at trial.
16
vary from case to case. [Citation.] The foundation requires that
there be sufficient evidence for a trier of fact to find that the
writing is what it purports to be, i.e., that it is genuine for the
purpose offered”].)
Although the trial court might well have exercised its
discretion differently, its decision to exclude the iBridge
spreadsheets because Zuniga failed to provide foundational
testimony necessary to authenticate them was far from arbitrary,
capricious or patently absurd. (See People v. Goldsmith, supra,
59 Cal.4th at p. 266 [a trial court’s exercise of discretion in
admitting or excluding evidence will not be disturbed “‘except on
a showing the trial court exercised its discretion in an arbitrary,
capricious, or patently absurd manner that resulted in a manifest
miscarriage of justice’”]; see also People v. Nieves, supra,
11 Cal.5th at p. 445; People v. Rodriguez (1999) 20 Cal.4th 1, 9-
10.) Van Dyke had no hands-on or supervisory involvement in
the conversion of the Alexandria Care PDF documents into Excel
spreadsheets, had no substantive conversations with the team
that prepared the spreadsheets and did not review the finished
product, let alone validate the results. He testified only as to the
general quality control procedures used at iBridge to ensure the
accuracy of the conversion process. He had no personal
knowledge that those procedures were actually used on Zuniga’s
project and did not offer an opinion, expert or otherwise, that
exhibits 5, 6 and 7 accurately reflected in computer-readable
format the Alexandria Care timekeeping and payroll records.
The authentication (foundation) necessary to admit
exhibits 5, 6 and 7 could have been provided by Dr. Drogin’s new
analysis verifying the accuracy of the spreadsheets, but the trial
court reasonably exercised its discretion to strike Dr. Drogin’s
17
additional testimony concerning that work, which was not
undertaken until after he had completed his trial testimony. (See
Evid. Code, § 778 [“After a witness has been excused from giving
further testimony in the action, he cannot be recalled without
leave of the court. Leave may be granted or withheld in the
court’s discretion”].)
Although Dr. Drogin stated at the conclusion of his
deposition that he might do additional work, whether or not
asked by Zuniga’s counsel—“I may review the material, and if I
see anything that I need to redo or expand on, I may do that”—in
context it was clear Dr. Drogin was indicating he intended to be
fully prepared before giving his trial testimony, not that his
assignment might expand into the area for which Van Dyke had
been designated as Zuniga’s expert witness.6 Alexandria Care
had no opportunity to depose Dr. Drogin concerning this new
opinion or to have its own expert review his analysis. Under the
circumstances the court reasonably determined it would be
6 Dr. Drogin explained, “[A]s an expert, I feel it is my
obligation to be as complete and accurate as possible. And if
there is [something]—I should be prepared for any type of
question you might ask; so that if there is something—when I
review the material and my results, I may find some additional
things that I need to study. I don’t need to be asked by counsel to
do that.” Asked if he anticipated doing that, Dr. Drogin
responded, “Absolutely. Before trial I’m going to be prepared,
and I want to make sure I recall all the important issues and
details. So I need to review the material and study it further so
that I’ll be prepared for trial. I mean statistical analysis is an
ongoing process. As you study data, you learn more and more
about the data, and that can affect the direction of your study
and your methodology. So I want to make sure that I am
confident in the results that I present.”
18
improper to allow Dr. Drogin to provide opinion testimony that
had not been disclosed in his expert report, during his deposition
or even in his initial trial testimony. (See Sargon Enterprises,
Inc. v. University of Southern California (2012) 55 Cal.4th 747,
773 (Sargon) [“[e]xcept to the extent the trial court bases its
ruling on a conclusion of law (which we review de novo), we
review its ruling excluding or admitting expert testimony for
abuse of discretion”].)
4. The Trial Court Abused Its Discretion in Excluding
Dr. Drogin’s Expert Testimony
Evidence Code section 801 provides, “If a witness is
testifying as an expert, his testimony in the form of an opinion is
limited to such an opinion as is: [¶] (a) Related to a subject that is
sufficiently beyond common experience that the opinion of an
expert would assist the trier of fact; and [¶] (b) Based on matter
(including his special knowledge, skill, experience, training, and
education) perceived by or personally known to the witness or
made known to him at or before the hearing, whether or not
admissible, that is of a type that reasonably may be relied upon
by an expert in forming an opinion upon the subject to which his
testimony relates, unless an expert is precluded by law from
using such matter as a basis for his opinion.” Evidence Code
section 802 authorizes the trial court to allow an expert to be
examined before admitting the expert’s opinion “concerning the
matter upon which his opinion is based.” An opinion based in
whole or in part on an improper matter may be excluded. (Evid.
Code, § 803.)
Analyzing these provisions of the Evidence Code, the
Supreme Court in Sargon, supra, 55 Cal.4th 747 delineated the
trial court’s role in evaluating the admissibility of expert
19
testimony: “[U]nder Evidence Code sections 801, subdivision (b),
and 802, the trial court acts as a gatekeeper to exclude expert
opinion testimony that is (1) based on matter of a type on which
an expert may not reasonably rely, (2) based on reasons
unsupported by the material on which the expert relies, or
(3) speculative.” (Id. at pp. 771-772.) The Sargon Court
cautioned, however, that this threshold responsibility is not
unlimited: “The trial court’s preliminary determination whether
the expert opinion is founded on sound logic is not a decision on
its persuasiveness. The court must not weigh an opinion’s
probative value or substitute its own opinion for the expert’s
opinion. Rather, the court must simply determine whether the
matter relied on can provide a reasonable basis for the opinion or
whether that opinion is based on a leap of logic or conjecture. . . .
The goal of trial court gatekeeping is simply to exclude ‘clearly
invalid and unreliable’ expert opinion.” (Id. at p. 772.)
There can be no doubt Dr. Drogin’s expert opinion
analyzing Alexandria Care’s meal break practices and the impact
of its rounding policy would be admissible if it had been based on
the PDF timekeeping and payroll records produced by Alexandria
Care in discovery.7 Such expert testimony analyzing an
employer’s records is commonplace in wage-and-hour and PAGA
cases. (See, e.g., Salazar v. See’s Candy Shops, Inc. (2021)
64 Cal.App.5th 85, 90; Carrington v. Starbucks Corp. (2018)
30 Cal.App.5th 504, 514.) Does the fact Dr. Drogin used the
computer-readable spreadsheets created by iBridge spell the
difference between his opinion being admissible or not? The trial
7 As discussed, when objecting to Dr. Drogin’s testimony,
Alexandria Care did not challenge his qualifications as a
statistician or data analyst.
20
court concluded it did, ruling Dr. Drogin’s testimony “was
without any foundation and would not be considered” because it
was based on the iBridge spreadsheets the court had excluded
from evidence.
Evidence Code section 801, however, does not limit an
expert to the use of admissible evidence in forming an opinion. It
expressly provides the basis for the opinion must be reliable,
“whether or not admissible.” (Evid. Code, § 801, subd. (b).) As
our colleagues in Division Four of this court explained in Olive v.
General Nutrition Centers, Inc. (2018) 30 Cal.App.5th 804, 821-
822, “Expert opinion testimony may be based upon information
furnished to the expert by others so long as the information is of
a type reasonably relied upon by professionals in the relevant
field. [Citations.] However, when the expert’s opinion is not
based on his own perception or knowledge, but depends instead
upon information furnished by others, it is of little value unless
the source is reliable. [Citations.] Thus, expert opinion
testimony may not be based upon information furnished by
others that is speculative, conjectural or otherwise unreliable.”
(See Sargon, supra, 55 Cal.4th at pp. 770-772 [discussing
threshold requirement of reliability]; Apple Inc. v. Superior Court
(2018) 19 Cal.App.5th 1101, 1120 [Sargon “merely ensures that
expert opinion evidence is reasonable, reliable, and logical”]; see
also People v. Nieves, supra, 11 Cal.5th at p. 440 [“‘any material
that forms the basis of an expert’s opinion testimony must be
reliable’”]; People v. Veamatahau (2020) 9 Cal.5th 16, 32
[“[T]estimony admitted under [Evidence Code] section 801 or 802
is subject to scrutiny on reliability grounds by the court and
opposing counsel. . . . [A]n expert must establish that the basis
for his or her opinion is sufficiently reliable such that it
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‘reasonably may be relied upon’ by experts testifying on the same
subject”].) Accordingly, if the trial court rejected Dr. Drogin’s
testimony simply because it was based on inadmissible evidence,
without further consideration of the reliability of the data used,
the court committed legal error.
The trial court’s ruling fares no better if we assume the
court impliedly found the iBridge spreadsheets were not only
inadmissible because they lacked foundation but also unreliable,
as Alexandria Care argues on appeal. As discussed, Dr. Drogin
testified he had used electronic records from iBridge on 10 to 15
prior occasions; he was familiar with the processes and quality
control measures iBridge used based on past discussions with
iBridge personnel; and he was comfortable relying on the data
iBridge provided to form his opinions. Indeed, his consulting firm
had recommended clients use iBridge in a number of cases where
information was obtained in paper-copy format and needed to be
converted to a computer-readable format such as Excel. He also
testified during his original testimony that he “did some
comparison of the PDF’s to the spreadsheet” and “[t]hey appeared
to be the same.” The trial court was not obligated to accept
Dr. Drogin’s testimony as sufficient foundation for admission of
the iBridge spreadsheets; but, in light of that testimony, there
was no reasonable basis for the court to conclude they were not
“of a type that reasonably may be relied upon by an expert in
forming an opinion upon the subject to which his testimony
relates,” as required by Evidence Code section 801,
subdivision (b).
Although we affirm the ruling excluding the spreadsheets
as within the trial court’s discretion, there was nothing
speculative or conjectural about them. (Cf. Olive v. General
22
Nutrition Centers, Inc., supra, 30 Cal.App.5th at p. 822 [because
second expert’s opinion was dependent on first expert’s
speculative assumptions, second expert’s opinion was unreliable];
Cooper v. Takeda Pharmaceuticals America, Inc. (2015)
239 Cal.App.4th 555, 577 [expert’s opinion based on assumptions
of fact without evidentiary support or on speculative or
conjectural factors may be excluded from evidence]; see also
Sargon, supra, 55 Cal.4th at p. 776 [trial court properly found
expert’s methodology was too speculative for the evidence to be
admissible].) Issues as to the accuracy of iBridge’s conversion
work go to the weight of Dr. Drogin’s testimony, not its
admissibility, and was the proper subject of cross-examination by
counsel for Alexandria Care.
In sum, the court’s ruling excluding Dr. Drogin’s testimony
because it was based on iBridge spreadsheets exceeded the
bounds of the court’s discretion. (See Sargon, supra, 55 Cal.4th
at p. 773 [“A ruling that constitutes an abuse of discretion has
been described as one that is ‘so irrational or arbitrary that no
reasonable person could agree with it.’ [Citation.] But the court’s
discretion is not unlimited, especially when, as here, its exercise
implicates a party’s ability to present its case”].)
5. Exclusion of Dr. Drogin’s Testimony Prejudiced Zuniga
The trial court’s error in excluding evidence is grounds for
reversing a judgment only if the party appealing demonstrates a
“miscarriage of justice”—that is, that a different result would
have been probable if the error had not occurred. (Evid. Code,
§ 354 [“[a] verdict or finding shall not be set aside, nor shall the
judgment or decision based thereon be reversed, by reason of the
erroneous exclusion of evidence unless the court which passes
upon the effect of the error or errors is of the opinion that the
23
error or errors complained of resulted in a miscarriage of
justice”]; Code Civ. Proc., § 475 [“[n]o judgment, decision, or
decree shall be reversed or affected by reason of any error, ruling,
instruction, or defect, unless it shall appear from the record that
such error, ruling, instruction, or defect was prejudicial, and also
that by reason of such error, ruling, instruction, or defect, the
said party complaining or appealing sustained and suffered
substantial injury, and that a different result would have been
probable if such error, ruling, instruction, or defect had not
occurred or existed”]; College Hospital Inc. v. Superior Court
(1994) 8 Cal.4th 704, 715 [“trial error is usually deemed harmless
in California unless there is a ‘reasonabl[e] probab[ility]’ that it
affected the verdict”]; Coyne v. De Leo (2018) 26 Cal.App.5th 801,
824 [same]; see also Colombo v. BRP US Inc. (2014)
230 Cal.App.4th 1442, 1475 [“[a] ‘miscarriage of justice’ occurs
when the party appealing shows that a ‘different result would
have been probable if the error had not occurred’”].)
Exclusion of Dr. Drogin’s testimony concerning Alexandria
Care’s failure to provide meal breaks as required by section 512,
subdivision (a),8 and the impact of Alexandria Care’s rounding
policy on its obligation to compensate its employees for all time
worked9 unquestionably prevented Zuniga from establishing her
PAGA claim. We recognize the trial court, as the finder of fact in
8 Dr. Drogin testified that 48.4 percent of shifts of five hours
or longer reflected unrecorded meal periods, meal periods of less
than 30 minutes or meal periods that commenced after the end of
the fifth hour of work. Of shifts that were longer than 10 hours,
69.2 percent had no second meal period of at least 30 minutes.
9 Dr. Drogin identified 738 hours more in employee “punch
time” than in paid time.
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the case, might have viewed Dr. Drogin’s testimony with
skepticism in light of Zuniga’s failure to introduce competent
evidence specifically directed to the accuracy of the iBridge
spreadsheets used in his analysis. But the threshold question of
admissibility and the evaluation of the weight to be given the
properly admitted testimony of a highly qualified expert are very
different issues. Because Alexandria Care elected to rest without
presenting any evidence contesting Dr. Drogin’s opinions, we are
unable to say total exclusion of his testimony was harmless.
(Cf. Brown v. Colm (1974) 11 Cal.3d 639, 647 [“the exclusion of
the sole expert relied upon by a party because of an erroneous
view of his qualifications is, in a case where expert testimony is
essential, an abuse of discretion as a matter of law requiring
reversal”]; Gordon v. Nissan Motor Co., Ltd. (2009)
170 Cal.App.4th 1103, 1114 [“when a trial court erroneously
denies all evidence relating to a claim, or essential expert
testimony without which a claim cannot be proven, the error is
reversible per se because it deprives the party offering the
evidence of a fair hearing and of the opportunity to show actual
prejudice”].)10
10 As discussed, describing Zuniga’s claims for failure to
maintain required employee records, failure to provide accurate
itemized wage statements and failure to pay all wages due to
terminated employees as “derivative” of her primary claims for
meal and rest break violations, unpaid overtime and failure to
pay minimum wages, the trial court ruled “her derivative claims
must fail also.” Because we reverse the court’s ruling concerning
those primary claims, we necessarily reverse this derivative
ruling, as well.
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DISPOSITION
The judgment is reversed, and the cause remanded for a
new trial. Zuniga is to recover her costs on appeal.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
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