Woodworth v. Loma Linda Univ. Med. Center

• Court: California Court of Appeal
• Decided: July 24, 2023
• Docket: E072704
• Status: Published

Opinion

Filed 7/24/23 CERTIFIED FOR PARTIAL PUBLICATION *

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

NICOLE WOODWORTH,

Plaintiff and Appellant, E072704

v. (Super.Ct.No. CIVDS1408640)

LOMA LINDA UNIVERSITY OPINION MEDICAL CENTER,

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. David S. Cohn,

Judge. Affirmed in part; reversed in part with directions. Motion to dismiss appeal

denied. Motion to dismiss cross-appeal granted.

Law Office of Joseph Antonelli, Joseph Antonelli, Janelle Carney; Clarkson Law

Firm and Glenn A. Danas for Plaintiff and Appellant Nicole Woodworth.

Lewis Brisbois Bisgaard & Smith, Jeffry A. Miller, Allison Arabian Hill, Jon P.

Kardassakis and Michael K. Grimaldi for Defendant and Appellant Loma Linda

University Medical Center.

*Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of parts I, III, IV, V, and VII of the Discussion.

1 Seyfarth Shaw, Jeffrey A. Berman and Kiran A. Seldon for California Hospital

Association as Amicus Curiae on behalf of Defendant and Appellant Loma Linda

Nicole Woodworth was a registered nurse at Loma Linda University Medical

Center (the medical center) from December 2011 to June 2014. In June 2014, she filed

this putative class action against the medical center, alleging a host of wage and hour

claims on behalf of herself and other employees. She later amended her complaint to add

a cause of action under the Private Attorneys General Act of 2004 (PAGA) (Lab. Code,

§ 2698 et seq.). (Unlabeled statutory citations refer to the Labor Code.)

After several years of litigation, only her individual claim for failure to provide

rest periods remained. The court had granted four motions for summary adjudication in

favor of the medical center, denied Woodworth’s motion for class certification, and

denied her motion to strike putative class members’ declarations. Woodworth appeals

from those orders, which disposed of the putative class members’ claims, the PAGA

claims, and all of her individual claims (apart from her claim about rest periods). The

medical center moves to dismiss most of Woodworth’s appeal, but we deny the motion.

We affirm the orders in large part but reverse in a number of respects. In

particular, we reverse in part the order denying class certification. The court erred with

respect to Woodworth’s proposed wage statement class, which consisted of employees

who received allegedly inaccurate wage statements. We remand for the trial court to

reconsider certification of that class.

2 We also conclude that the court erred by granting summary adjudication for the

medical center on the PAGA rest period, regular rate, wage statement, and waiting time

claims, as well as Woodworth’s individual wage statement claim. We thus reverse the

order granting the relevant motions and direct the court to enter a new order granting the

motions in part and denying them in part.

Additionally, the court erred by granting summary adjudication for the medical

center on Woodworth’s claim that she and other nonexempt employees were underpaid as

a result of time rounding. The medical center had a policy of rounding employees’ time

punches down to the nearest tenth of an hour. See’s Candy Shops, Inc. v. Superior Court

(2012) 210 Cal.App.4th 889 (See’s Candy) approved of time rounding, so long as the

rounding policy is “fair and neutral on its face” and “‘used in such a manner that it will

not result, over a period of time, in failure to compensate the employees properly for all

the time they have actually worked.’” (Id. at p. 907.) Recently, another appellate court

rejected the See’s Candy rounding standard. (Camp v. Home Depot U.S.A., Inc. (2022)

84 Cal.App.5th 638, 643 (Camp), review granted Feb. 1, 2023, S277518.) We publish

our discussion of the rounding motion to express our agreement with Camp.

We also publish another portion of our discussion regarding the alternative

workweek schedule (AWS) instituted by the medical center. California law permits

employers to institute an AWS that operates as an exception to overtime requirements.

(§§ 510, subd. (a)(1), 511; Maldonado v. Epsilon Plastics, Inc. (2018) 22 Cal.App.5th

1308, 1314 (Maldonado).) Employees must vote to adopt an AWS, and the law requires

employers to disclose the effects of an AWS before the vote. (Cal. Code Regs., tit. 8,

3 § 11050, subd. 3(C)(3).) The medical center moved for summary adjudication on its

AWS defense to Woodworth’s claim for unpaid overtime. The trial court granted that

motion, and we affirm that order. In doing so, we hold that an employer’s failure to

comply with the pre-election disclosure requirement renders an AWS election null and

void only if the employer omits material information about the proposed AWS’s effects.

The medical center has filed a cross-appeal from the order denying its motion to

strike all of the PAGA allegations from the operative complaint on the ground that the

PAGA claims were unmanageable. Woodworth moves to dismiss the cross-appeal. We

grant that motion, but we consider the arguments raised in the cross-appeal to the extent

that they provide alternative grounds to affirm the erroneous orders terminating the

PAGA claims.

We conclude that the medical center’s manageability arguments do not provide

alternative grounds for affirmance. There is a split in the appellate courts over whether

trial courts may strike or dismiss PAGA claims for lack of manageability, and we also

publish the relevant portion of our discussion to express our agreement with one side of

that split. (Wesson v. Staples the Office Superstore, LLC (2021) 68 Cal.App.5th 746, 756

(Wesson) [holding that courts have inherent authority to strike unmanageable PAGA

claims]; Estrada v. Royalty Carpet Mills, Inc. (2022) 76 Cal.App.5th 685, 697 (Estrada),

review granted June 22, 2022, S274340 [holding that courts cannot strike PAGA claims

on the basis of manageability concerns].) We agree with the court in Estrada and hold

that trial courts may not strike or dismiss a PAGA claim for lack of manageability. When

faced with unwieldy PAGA claims, trial courts may limit the scope of the claims or the

4 evidence to be presented at trial but may not prohibit PAGA plaintiffs from presenting

their claims entirely.

BACKGROUND

I. The Operative Complaint

Woodworth’s third amended complaint (TAC) alleged numerous theories of

liability. First, Woodworth alleged that the medical center failed to pay overtime

compensation to hourly nonexempt employees for work in excess of eight hours per day.

Employees in the healthcare industry may adopt an AWS consisting of 10- or 12-hour

workdays for which they will not receive overtime pay. (Cal. Code Regs., tit. 8, § 11050,

subd. 3(B)(1), (8).) Employees adopt the AWS through a secret-ballot election in which

at least two-thirds of the affected employees vote in favor of the AWS. (Maldonado,

supra, 22 Cal.App.5th at p. 1314.) According to Woodworth’s TAC, the medical center

did not comply with all AWS election procedures when it instituted 10- and 12-hour

shifts for employees, so the AWS was invalid, and the medical center owed those

employees overtime pay for work under the AWS (the overtime claim).

Second, Woodworth alleged that the medical center miscalculated overtime rates

and premium pay for missed meal or rest periods by failing to include all remuneration in

the employees’ regular rate of pay (the regular rate claim). In particular, the medical

center allegedly failed to include nondiscretionary bonuses in the employees’ regular rate

of pay. Overtime hours are compensated at either one and one-half times or twice an

employee’s “regular rate of pay.” (§ 510, subd. (a).) If an employer fails to provide a

5 meal or rest period as required by law, it must pay the employee an additional hour at the

employee’s “regular rate of compensation.” (§ 226.7, subd. (c).)

Third, Woodworth alleged that the medical center rounded the number of hours

that employees worked to the nearest tenth of an hour. She alleged that as a result of the

rounding policy, the medical center systematically underpaid her and the other

nonexempt employees (the rounding claim).

Fourth, Woodworth alleged that the medical center failed to provide a third rest

period for employees who worked 10 hours or more per shift. The medical center

allegedly failed to implement a relief system that would enable employees to take

mandated rest periods (the rest period claim).

Fifth, Woodworth alleged that the medical center failed to pay employees all

wages due, or failed to pay them in a timely manner, when the employees separated from

the medical center. She sought penalties for those alleged “delays in the payment of end-

of-employment wages,” which are “commonly referred to as ‘waiting time penalties’”

(the waiting time claim). (Naranjo v. Spectrum Security Services, Inc. (2022) 13 Cal.5th

93, 106 (Naranjo).)

And sixth, Woodworth alleged that the medical center failed to provide employees

with accurate itemized wage statements. The wage statements allegedly were improper

in a number of respects, including by failing to show “total hours worked by the

employee[s]” (the wage statement claim). (§ 226, subd. (a).)

On the basis of the foregoing allegations, the TAC alleged seven overlapping

causes of action, styled as follows: (1) violations of the unfair competition law (UCL)

6 (Bus. & Prof. Code, § 17200 et seq.); (2) recovery of unpaid wages and penalties under

numerous Labor Code sections (§§ 204, 206, 218, 226, 510, 511, 1194, 1198); (3)

violation of sections 201 through 203, requiring payment of all wages due upon

separation; (4) failure to provide accurate itemized wage statements (§ 226); (5) failure to

provide rest periods (§ 226.7); (6) failure to pay all wages because of illegal rounding

(§§ 510, 1194, 1197, 1198; Cal. Code Regs., tit. 8, § 11000(2)); and (7) violations of

PAGA. The TAC also alleged a cause of action for failure to provide meal periods, but

Woodworth does not challenge the court’s ruling granting summary adjudication for the

medical center on that cause of action.

II. The Motions and Rulings at Issue

Woodworth challenges the court’s ruling on six motions between November 2018

and May 2019. In the medical center’s cross-appeal, it challenges the court’s ruling on

one motion during that period. For now, we briefly describe the relevant motions and

challenged rulings. In the discussion section, post, we take each motion in turn,

providing more background and reviewing the parties’ evidence and arguments in detail.

First, the medical center moved for summary adjudication on the rounding claim.

In November 2018, the court granted that motion as to the stand-alone cause of action

alleging rounding, as well as to the UCL cause of action, the PAGA cause of action, and

the cause of action for recovery of unpaid wages, to the extent that they alleged illegal

rounding.

Next, Woodworth moved for class certification. As part of its opposition to the

motion, the medical center filed 43 declarations from putative class members.

7 Woodworth moved to strike those putative class members’ declarations. In March 2019,

the court denied the motion to strike the declarations and denied the motion for class

certification.

While the parties were briefing the motion for class certification, the medical

center filed three motions for summary adjudication and a motion to strike the PAGA

allegations. One motion sought summary adjudication on the regular rate claim, the

wage statement claim, and the waiting time claim. Another motion sought summary

adjudication on the PAGA cause of action on the ground that Woodworth had failed to

exhaust administrative remedies. The third motion sought summary adjudication on the

medical center’s AWS defense to the overtime claim. And the medical center moved to

strike the PAGA allegations on the ground that the PAGA cause of action was

unmanageable.

In May 2019, the court entered an order (1) granting the motion for summary

adjudication on the regular rate claim, the wage statement claim, and the waiting time

claim and (2) granting the motion for summary adjudication on the AWS defense to the

overtime claim. The court’s ruling disposed of the various causes of action, including the

UCL and PAGA causes of action, to the extent that they were predicated on those claims.

The May 2019 order also granted the motion for summary adjudication on the

PAGA cause of action, to the extent that the court had “not otherwise summarily

adjudicated” the cause of action in favor of the medical center. More specifically, the

court ruled that Woodworth had not provided sufficient notice of her rest period claim to

the Labor and Workforce Development Agency (LWDA). Lastly, the May 2019 order

8 denied the medical center’s motion to strike the PAGA allegations. The court ruled that

the motion was moot in light of its rulings on the medical center’s other motions. But the

court also ruled that even if the motion were not moot, it would deny the motion, because

there was no controlling authority for striking a PAGA claim as unmanageable. After all

of those rulings, only Woodworth’s individual rest period claim survived.

DISCUSSION

I. Motions to Dismiss

Woodworth appeals from (1) the November 2018 order granting the medical

center’s motion for summary adjudication on the rounding claim; (2) the March 2019

order denying her motion to strike the putative class members’ declarations and denying

her motion for class certification; and (3) the May 2019 order granting the medical

center’s motion for summary adjudication on the regular rate claim, the wage statement

claim, and the waiting time claim; granting the medical center’s motion for summary

adjudication on the AWS defense; and granting the medical center’s motion for summary

adjudication on the PAGA cause of action for failure to exhaust administrative remedies.

The medical center cross-appeals from the court’s May 2019 order denying the

motion to strike the PAGA allegations.

Both parties have filed motions to dismiss. The medical center moves to dismiss

all but a small portion of Woodworth’s appeal. Woodworth moves to dismiss the

cross-appeal in its entirety. The medical center’s motion lacks merit, but Woodworth’s

motion is well taken.

9 A. The Medical Center’s Motion for Partial Dismissal of the Appeal

The medical center contends that, under the death knell doctrine, we may review

only the order denying class certification of the rest period claim and the order denying

the motion to strike the putative class declarations. According to the medical center, we

have no jurisdiction to review the remainder of the order denying the motion for class

certification or any of the other orders that Woodworth challenges. We disagree.

“Under the one final judgment rule, ‘“an appeal may be taken only from the final

judgment in an entire action.”’” (In re Baycol Cases I & II (2011) 51 Cal.4th 751, 756

(Baycol).) The death knell doctrine is a judicially created exception to the one final

judgment rule. (Id. at p. 757.) Under the doctrine, we treat an order that terminates class

claims but permits individual claims to proceed “as in essence a final judgment” on the

class claims. (Ibid.) Such an order effectively rings “the death knell for the class claims”

and is “appealable immediately.” (Ibid.)

“The doctrine is animated by two basic considerations: (1) The order terminating

class claims is the practical equivalent of a final judgment for absent class members; and

(2) without the possibility of a group recovery, the plaintiff will lack incentive to pursue

[individual] claims to final judgment, thus allowing the order terminating class claims to

evade review entirely.” (Cortez v. Doty Bros. Equipment Co. (2017) 15 Cal.App.5th 1, 8

(Cortez).)

The death knell doctrine also applies when an order terminates representative

PAGA claims and permits only individual claims to proceed. (Miranda v. Anderson

Enterprises, Inc. (2015) 241 Cal.App.4th 196, 199, 201 (Miranda).) The concerns

10 underlying the doctrine apply to PAGA claims and class claims in equal measure. (Id. at

p. 201.) That is, without the possibility of group recovery, plaintiffs will lack an

economic incentive to pursue their individual claims, thereby permitting the order

terminating PAGA claims to evade review. (Ibid.)

But the death knell doctrine does not apply when PAGA claims remain pending

after the trial court terminates class claims. (Cortez, supra, 15 Cal.App.5th at p. 8;

Nguyen v. Applied Medical Resources Corp. (2016) 4 Cal.App.5th 232, 243; Young v.

RemX, Inc. (2016) 2 Cal.App.5th 630, 635; Munoz v. Chipotle Mexican Grill, Inc. (2015)

238 Cal.App.4th 291, 310.) In those circumstances, the possibility of group recovery

under PAGA still exists despite the termination of class claims. (Cortez, at p. 8.) “[T]he

PAGA plaintiff remains incentivized by the statutory scheme to proceed to judgment on

behalf of himself or herself as well as the individuals he or she represents.” (Ibid.)

In this case, the May 2019 order granting the medical center’s three motions for

summary adjudication constituted an appealable order under the death knell doctrine.

That order terminated Woodworth’s PAGA cause of action, sounding the death knell for

the claims of the absent aggrieved employees. (See ZB, N.A. v. Superior Court (2019) 8

Cal.5th 175, 184-185 [PAGA “empowers employees to sue on behalf of themselves and

other aggrieved employees to recover civil penalties”].) Woodworth’s individual rest

period claim survived, but the persistence of that “‘de minimis individual’” claim

“‘creates a risk no formal final judgment will ever be entered.’” (Miranda, supra, 241

Cal.App.4th at p. 202.) And although the court had terminated Woodworth’s class claims

by denying class certification several months earlier, the death knell doctrine did not

11 render that order appealable. Her pending PAGA cause of action precluded that result.

(Cortez, supra, 15 Cal.App.5th at p. 8.)

The medical center argues that Baycol requires dismissal of most of the appeal.

We are not persuaded. Baycol considered an order sustaining a demurrer to class claims

and individual claims, which disposed of the plaintiff’s action entirely. (Baycol, supra,

51 Cal.4th at p. 755.) Our Supreme Court reasoned that the death knell doctrine did not

render the order immediately appealable because the plaintiff could (and did) appeal from

the judgment of dismissal. (Id. at pp. 760-762.) Thus, there was “no need to apply any

special exception to the usual one final judgment rule to ensure appellate review of class

claims.” (Id. at p. 754.) The court held that the death knell “doctrine renders appealable

only those orders that effectively terminate class claims but permit individual claims to

continue.” (Ibid.)

According to the medical center, Baycol limits our review to the denial of class

certification on the rest period claim, because “the class part of the claim is foreclosed

and, at the same time, the underlying ‘individual claim[] survive[s].’” Baycol does not

impose that limitation on our review. The Baycol court required that an order must allow

individual claims to survive in order to trigger the death knell exception. But it did not

limit the parts of the appealable order that are reviewable once the exception applies.

And the limitation that the medical center seeks to impose makes no sense, given the

rationale for the death knell doctrine. Suppose we reviewed only that part of the order

denying class certification on the rest period claim, and we affirmed it. On remand, the

concerns underlying the death knell doctrine would still exist. Woodworth’s class claims

12 would be terminated entirely, and only her individual rest period claim would remain.

She would still lack an incentive to pursue that individual claim to judgment, so most of

the order terminating her class claims would evade review. That is to say nothing of the

May 2019 order terminating her PAGA cause of action, which would also evade review

if we were to follow the course urged by the medical center.

The proper course is to review the entirety of the orders underlying the “de facto

final judgment for absent plaintiffs.” (Baycol, supra, 51 Cal.4th at p. 759; see Wallace v.

GEICO General Ins. Co. (2010) 183 Cal.App.4th 1390, 1395-1396 & fn. 5 [appellate

court could review interim order on summary judgment motion, because the ruling

“impacted the trial court’s decision to strike the class allegations”].) As to the absent

putative class members, that means we should review the order denying Woodworth’s

motion to strike their declarations and denying her motion for class certification.

(Barriga v. 99 Cents Only Stores LLC (2020) 51 Cal.App.5th 299, 320-321 (Barriga)

[order denying motion to strike putative class declarations was reviewable on appeal from

order denying class certification motion].) As to the absent aggrieved employees, it

means we should review the May 2019 order granting the medical center’s motions for

summary adjudication, plus the November 2018 order granting the medical center’s

motion for summary adjudication on the rounding claim. The court granted each of those

motions with respect to the PAGA cause of action (as well as Woodworth’s individual

claims). Collectively, the two orders disposed of every theory of liability on which

Woodworth based the PAGA cause of action—the regular rate claim, the wage statement

claim, the waiting time claim, the overtime claim, the rest period claim, and the rounding

13 claim. All of those orders contributed to the de facto final judgment for the absent

plaintiffs.

For all of these reasons, we deny the medical center’s motion for partial dismissal

of the appeal.

B. Woodworth’s Motion to Dismiss the Cross-Appeal

Woodworth moves to dismiss the medical center’s cross-appeal, arguing that the

death knell doctrine renders the orders that she challenges appealable, but it does not give

the medical center the right to appeal. We agree.

As discussed, the death knell doctrine permits us to review orders that terminated

the claims of absent class members and absent aggrieved employees. But the order from

which the medical center cross-appeals—the order denying the motion to strike the

PAGA allegations—did not contribute to that de facto final judgment against the absent

class members and aggrieved employees. Rather, the order would have kept the PAGA

claims alive, if the claims had survived the medical center’s other motions. The death

knell doctrine therefore does not give us jurisdiction over the cross-appeal.

Nevertheless, Woodworth observes that we may consider the medical center’s

arguments in its cross-appeal as “alternative grounds to affirm” the court’s rulings

terminating the PAGA cause of action, so the cross-appeal is “wholly unnecessary.”

Again, we agree with her. To the extent that we conclude the trial court erred by

terminating the PAGA claims, we consider the arguments advanced by the medical center

in its motion to strike the PAGA allegations as alternative grounds to affirm those orders.

(See Hicks v. Kaufman & Broad Home Corp. (2001) 89 Cal.App.4th 908, 924, fn. 56 [“it

14 is not necessary for the respondent to file a cross-appeal in order to raise an additional

legal ground for affirming the judgment or order against the appellant”].)

For these reasons, we dismiss the cross-appeal but consider the arguments raised

in the cross-appeal as alternative grounds to affirm the orders from which Woodworth

appeals.

II. Motion for Summary Adjudication on the Rounding Claim

Woodworth argues that the trial court erred by granting the medical center’s

motion for summary adjudication on the rounding claim. In particular, she urges us to

follow Camp. Camp reversed a judgment for the employer on a rounding claim, holding

that “if an employer . . . can capture and has captured the exact amount of time an

employee has worked during a shift, the employer must pay the employee for ‘all the

time’ worked.” (Camp, supra, 84 Cal.App.5th at p. 660.) We agree with the reasoning in

Camp, and we accordingly reverse the order granting summary adjudication for the

medical center on the rounding claim.

A. Relevant Background

The medical center’s motion for summary adjudication argued that its rounding

policy was fair and neutral as to all nonexempt employees, and the policy therefore was

lawful under See’s Candy, supra, 210 Cal.App.4th 889. (Id. at p. 903 [“Assuming a

rounding-over-time policy is neutral, both facially and as applied, the practice is proper

under California law”].) It sought summary adjudication on the stand-alone cause of

action alleging rounding and several other causes of action, including the PAGA cause of

action, to the extent that they were based on the rounding claim.

15 The evidence offered by the medical center showed that employees clock in and

out for work on a computer-based system. For purposes of calculating employees’ pay,

the medical center rounds the employees’ time punches. The hourly time clock is divided

into 10 six-minute increments beginning with the hour mark, and the time punches are

rounded down to the nearest tenth of an hour. For example, if an employee clocks in for

a 7:00 a.m. shift at 6:59 a.m., the time punch is rounded down to 6:54 a.m. If that same

employee clocks in at 7:05 a.m., the time punch is rounded down to 7:00 a.m. And if the

employee clocks in at 7:00 a.m., no rounding occurs, because the time punch is already at

the nearest tenth of an hour.

In support of the motion, the medical center also offered the declaration of

Michael J. Buchanan, an applied economist with experience in evaluating economic and

statistical issues in class action cases. Buchanan analyzed the timekeeping and payroll

data for all hourly nonexempt employees from June 2010 to August 2015. (Woodworth

proposed a class period starting in June 2010.) The data set included records for 10,534

employees. He compared the rounded time from the payroll data to the unrounded clock

entries from the timekeeping data. The timekeeping data reflected “the actual time an

employee punched in or out.”

Buchanan concluded that 5,418 employees (or approximately 51.4 percent) were

paid for more time than they were on the clock, while 5,002 employees (or approximately

47.4 percent) were paid for less time than they were on the clock. Another 114

employees (or about 1.1 percent) were unaffected by rounding. Buchanan opined that the

16 rounding policy was neutral and that there was no systematic advantage to either the

medical center or the employees.

In opposition to the motion for summary adjudication, Woodworth argued that the

rounding policy was not neutral because it systematically undercompensated employees

assigned to work 12-hour shifts (the 12-hour employees). She asserted that she was

going to seek certification of a rounding class consisting of 12-hour employees only.

Woodworth offered the declaration of Brian Kriegler, a statistician who was the

managing director of an economic and statistical consulting firm. Kriegler analyzed the

timekeeping and payroll data from the same period as Buchanan, but Kriegler did not

analyze the data for all nonexempt employees. Instead, he analyzed the data only for the

12-hour employees. His data set included 4,620 employees.

Kriegler’s analysis differed from Buchanan’s analysis in another way. Kriegler

conducted a “‘weighted hours’” analysis that attempted to quantify how rounding

impacted the 12-hour employees’ earnings. He noted that 12-hour employees worked

straight time hours but often also worked overtime hours (one and one-half times their

regular rate of pay) and double time hours (two times their regular rate of pay). He

opined that determining “whether rounding is fair in terms of earnings requires taking

into account the respective amounts of straight time, overtime, and double time—and not

simply applying equal weight to all hours worked.” 1 Kriegler criticized Buchanan’s

1 Kriegler explained his weighted hours analysis as follows: “[O]ne way to think about how employees are paid is in terms of the equivalent number of straight time hours: [¶] 1.0 x Straight Time Hours + 1.5 x Overtime Hours + 2.0 x Double Time Hours. [¶]

17 analysis because it compared the employees’ time on the clock to their rounded time, but

it did not examine how the difference might have affected their earnings, and it did not

apply “the correct weight to straight time, overtime, and double time hours.”

According to Kriegler’s weighted hours analysis, 3,121 of the 12-hour employees

(or approximately 67.6 percent) were underpaid because of rounding, while 1,477 of

them (or about 32 percent) were overpaid. Another 22 of the 12-hour employees (or

about 0.5 percent) were neither underpaid nor overpaid. Kriegler also analyzed all of

Woodworth’s own data. He concluded that the medical center underpaid her in 37 out of

60 pay periods, resulting in 6.3 weighted hours of unpaid work worth $202.72.

In the medical center’s reply brief, it argued that Woodworth’s evidence did not

dispute that the rounding policy was neutral as applied to all employees. Instead, her

evidence focused on 12-hour employees, a theory that she did not plead in the TAC. The

TAC defined the putative class for the rounding claim as all hourly nonexempt

employees. Likewise, the PAGA cause of action defined “‘aggrieved employees’” as all

hourly nonexempt employees of the medical center. The medical center asserted that

opposition papers could not “create issues outside the pleadings.” It further argued that it

was irrelevant whether Woodworth was underpaid as a result of rounding, because the

proper analysis examined the effect of rounding on the employees as a whole.

. . . [C]onsider an 8-hour shift employee who works 12.5 hours in a day and is paid $25 per hour. This employee’s Weighted Hours are 1.0 x 8 + 1.5 x 4 + 2.0 x 0.5 = 15 Weighted Hours. This employee’s earnings are 15 x $25/hour = $375.”

18 The court granted the medical center’s motion for summary adjudication on

Woodworth’s individual rounding claim and the PAGA cause of action, to the extent that

the cause of action “reiterate[d] the rounding claim.” The court ruled that Buchanan’s

declaration constituted a “prima facie” showing that the rounding policy was neutral on

its face and as applied. The court reasoned that Kriegler’s declaration did not controvert

that evidence, because he looked only at the 12-hour employees. The TAC defined the

issues for summary adjudication, and the TAC defined the allegedly affected class as all

nonexempt employees, not just the 12-hour employees. The court further reasoned that

Woodworth’s individual experience was irrelevant, because the question was how the

employees as a group fared.

B. Standard of Review

A defendant may move for summary adjudication on a cause of action if the

defendant contends that the cause of action has no merit. (Code Civ. Proc., § 437c, subd.

(f)(1).) The defendant may carry its initial burden by showing that one or more elements

of the challenged cause of action cannot be established or that there is a complete defense

to the cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) For purposes of summary

adjudication, a cause of action “‘means “‘a group of related paragraphs in the complaint

reflecting a separate theory of liability.’”’” (Silva v. See’s Candy Shops, Inc. (2016) 7

Cal.App.5th 235, 257 (Silva), disapproved on another ground by Donohue v. AMN

Services, LLC (2021) 11 Cal.5th 58, 77.)

Once the moving defendant has carried its initial burden, the burden shifts to the

plaintiff to show a triable issue of material fact with respect to the cause of action. (Code

19 Civ. Proc., § 437c, subd. (p)(2).) The trial court must consider all of the evidence and the

reasonable inferences from it in the light most favorable to the nonmoving party.

(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) The court may grant the

motion if there is no triable issue of material fact and the issues raised by the pleadings

may be decided as a matter of law. (Code Civ. Proc., § 437c, subds. (c), (f)(1);

Biancalana v. T.D. Service Co. (2013) 56 Cal.4th 807, 813.) “There is a triable issue of

material fact if, and only if, the evidence would allow a reasonable trier of fact to find the

underlying fact in favor of the party opposing the motion in accordance with the

applicable standard of proof.” (Aguilar, supra, at p. 850.)

We review summary adjudication orders de novo and apply the same legal

standard as the trial court. (Travelers Property Casualty Co. of America v. Superior

Court (2013) 215 Cal.App.4th 561, 574.) We independently examine the record to

determine whether there are triable issues of material fact and whether the moving party

is entitled to summary adjudication as a matter of law. (Id. at p. 574.)

C. Analysis

A federal regulation “allows employers to compute employee worktime by

rounding ‘to the nearest 5 minutes, or to the nearest one-tenth or quarter of an hour,’

provided that the rounding system adopted by the employer ‘is used in such a manner that

it will not result, over a period of time, in failure to compensate the employees properly

for all the time they have actually worked.’” (AHMC Healthcare, Inc. v. Superior Court

(2018) 24 Cal.App.5th 1014, 1020-1021 (AHMC Healthcare), quoting 29 C.F.R.

§ 785.48(b).) Under that regulation, the practice of rounding time is lawful “‘if the

20 employer applies a consistent rounding policy that, on average, favors neither

overpayment nor underpayment.’” (See’s Candy, supra, 210 Cal.App.4th at p. 901.)

“‘Presumably, this arrangement averages out so that the employees are fully compensated

for all the time they actually work.’” (Ibid.)

In 2012, See’s Candy adopted the federal regulatory standard for rounding claims

under California law. (See’s Candy, supra, 210 Cal.App.4th at p. 907.) The court

reasoned that no California statute or case law prohibited the practice of rounding, and in

the absence of state authorities, California courts generally look to federal labor law for

guidance. (Id. at pp. 901, 903.) The court also found persuasive that the agency

responsible for enforcing California’s labor laws, the Division of Labor Standards

Enforcement (DLSE), had adopted the federal regulation in the agency’s 2002 revised

enforcement manual. (Id. at p. 902.) The See’s Candy court thus held that a rounding

policy is lawful if it is facially neutral and applied “‘in such a manner that it will not

result, over a period of time, in failure to compensate the employees properly for all the

time they have actually worked.” (Id. at p. 907.)

Since 2012, other courts of appeal have followed See’s Candy by applying the

federal regulatory standard to rounding claims under California law. (David v. Queen of

Valley Medical Center (2020) 51 Cal.App.5th 653, 664-665; AHMC Healthcare, supra,

24 Cal.App.5th at pp. 1028-1029.) In one case, the court observed that the federal

standard does not require that a rounding policy “work out neutrally for every employee.”

(AHMC Healthcare, at p. 1022; accord Corbin v. Time Warner Entm’t-

Advance/Newhouse P’ship (9th Cir. 2016) 821 F.3d 1069, 1077 [rejecting the argument

21 that every employee must “gain[] or break[] even over every pay period or set of pay

periods analyzed”].) Requiring neutral results for every individual employee “‘would

undercut the purpose’ and ‘gut the effectiveness’ of the typical rounding policy.”

(AHMC Healthcare, at p. 1022.)

Camp recently broke with the See’s Candy line of cases. In Camp, the stipulated

evidence showed that under the employer’s rounding policy, 56.6 percent of employees

were paid for the same or a greater amount of time than their actual work time, while

43.4 percent of employees were underpaid. (Camp, supra, 84 Cal.App.5th at p. 646.)

The plaintiff was one of the employees whom the employer had underpaid—he had lost

7.83 hours because of rounding. (Ibid.)

The employer argued that its rounding policy was lawful under See’s Candy and

that it therefore was entitled to summary judgment on the plaintiff’s claim for unpaid

wages, but the Camp court rejected that argument. (Camp, supra, 84 Cal.App.5th at

pp. 643-644.) The court held that if an employer “can capture and has captured the exact

amount of time an employee has worked during a shift, the employer must pay the

employee for ‘all the time’ worked.” (Id. at p. 660.)

The Camp court relied heavily on two California Supreme Court decisions that

postdate See’s Candy. The first decision, Troester v. Starbucks Corp. (2018) 5 Cal.5th

829 (Troester), concerned the de minimis doctrine found in federal labor law, which

“excuse[s] the payment of wages for small amounts of otherwise compensable time upon

a showing that the bits of time are administratively difficult to record.” (Id. at p. 835.)

Troester declined to adopt the federal de minimis doctrine. (Id. at pp. 835, 837-841.)

22 The second decision, Donohue v. AMN Services, LLC (2021) 11 Cal.5th 58 (Donohue),

held that “employers cannot engage in the practice of rounding time punches . . . in the

meal period context. The meal period provisions are designed to prevent even minor

infringements on meal period requirements, and rounding is incompatible with that

objective.” (Id. at p. 61.) 2

Camp identified four reasons for rejecting the employer’s showing that its

rounding policy was lawful. (Camp, supra, 84 Cal.App.5th at pp. 656-658.) First,

Troester clarified that the Labor Code and the relevant wage order both contemplate that

employers will pay employees for “‘all work performed.’” 3 (Camp, at p. 657.) The

evidence in Camp showed that the employer had not paid the plaintiff for all work

performed. (Ibid.)

Second, as our high court explained in Troester, the Labor Code and the wage

order provisions form a regulatory scheme that “‘is . . . concerned with “small things.”’”

(Camp, supra, 84 Cal.App.5th at p. 657.) And when Troester rejected the de minimis

doctrine, it “indicated that even small amounts of worktime—indeed amounts measured

in minutes—are compensable where the worktime is regularly occurring.” (Camp, at

2 Donohue held that rounding is unlawful in the meal period context but stopped short of deciding the validity of the See’s Candy rounding standard. (Donohue, supra, 11 Cal.5th at p. 72.) The court noted that it had not been asked to decide that issue. (Ibid.) It instead assumed the validity of See’s Candy and determined that rounding in the meal period context did not comport with the See’s Candy neutrality standard. (Donohue, at p. 72.)

3 The Industrial Welfare Commission (IWC) has adopted wage orders that are “‘accorded the same dignity as statutes’” and that “take precedence over the common law to the extent they conflict.” (Troester, supra, 5 Cal.5th at p. 839.)

23 p. 657; accord Donohue, supra, 11 Cal.5th at p. 68 [given the regulatory scheme’s

concern “with small amounts of time” and “the relatively short length of a 30-minute

meal period, the potential incursion that might result from rounding is significant”].) The

evidence in Camp demonstrated that the small amounts of worktime periodically lost

through rounding could add up over time—indeed, the plaintiff lost more than seven

hours of worktime over five-plus years. (Camp, at pp. 646, 657.)

Third, there was no convincing evidence that the IWC or the Legislature intended

to adopt the federal rounding regulation for determining whether time is compensable

under state law. (Camp, supra, 84 Cal.App.5th at p. 657.) Under those circumstances,

our high court had declined to adopt by implication any federal standard that expressly

eliminates substantial protections for employees. (Ibid.) Similarly, our high court had

cautioned against relying on federal labor law to construe state labor law if the language

or intent of the laws substantially differs. (Ibid.) In the case of rounding, there was not

merely a difference in language but “a complete absence of language.” (Ibid.) The

federal regulation has no analog in the Labor Code or in the relevant wage order. (Id. at

p. 657.) In the 60-plus years since the federal regulation took effect, neither the

Legislature nor the IWC had amended the law to recognize a rounding exception to the

general requirement that an employee be paid for all time worked. (Id. at p. 658.)

Troester declined to adopt the federal de minimis doctrine under substantially similar

circumstances. (Troester, supra, 5 Cal.5th at p. 841; Camp, at p. 658.)

Fourth and finally, Donohue “appear[ed] to have called into question the

efficiencies historically attributed to time rounding given that advances in technology

24 have enabled employers to more easily and more precisely capture time worked by

employees.” (Camp, supra, 84 Cal.App.5th at p. 658.) Donohue recognized that

employers had developed rounding as a way to efficiently calculate hours worked and

wages owed. (Donohue, supra, 11 Cal.5th at p. 73.) But the employer in Donohue used

an electronic timekeeping system that “had to take the extra step of converting the

unrounded time punches to rounded ones,” so it was unclear what efficiencies the

employer had gained from the practice. (Id. at p. 74.) The same was true in Camp: The

employer’s timekeeping system recorded time worked to the minute and took the extra

step of rounding that time, but there were no clear efficiencies gained. (Camp, at p. 658.)

We find Camp’s reasons for rejecting the See’s Candy rounding standard

persuasive. We therefore conclude that the medical center was not entitled to summary

adjudication on Woodworth’s individual rounding claim or the PAGA rounding claim.

The medical center’s evidence showed that over 5,000 employees were not paid for all

time worked under the rounding policy. Woodworth’s evidence showed that she was not

paid for 6.3 weighted hours under the policy. In addition, the evidence showed that the

medical center’s computer-based timekeeping system captured the employees’ time to the

minute and took the extra step of rounding the time punches. Because the medical center

could and did capture the exact number of minutes that employees worked, it “must pay

the employee[s] for ‘all the time’ worked.” (Camp, supra, 84 Cal.App.5th at p. 660.)

Camp was decided after we issued our tentative opinion in this matter, so we gave

the parties an opportunity to file supplemental briefs regarding the case. In its

supplemental brief, the medical center contends that Woodworth forfeited the argument

25 that See’s Candy does not apply here. It points out that Woodworth did not challenge

See’s Candy in the trial court or in her opening or reply brief on appeal. We agree that, in

general, appellants forfeit arguments not raised in the trial court or in their appellate

briefing. (DiCola v. White Brothers Performance Products, Inc. (2008) 158 Cal.App.4th

666, 676 (DiCola).) But we also have discretion to consider a forfeited issue on the

merits. (JRS Products, Inc. v. Matsushita Electric Corp. of America (2004) 115

Cal.App.4th 168, 179.)

We conclude that there are good reasons to exercise that discretion here. Camp

had not been decided when the parties briefed this motion in the trial court. Even the

cases on which Camp relied, Troester and Donohue, were decided after the parties had

fully briefed the motion in mid-July 2018. And when the trial court ruled on the motion

in November 2018, See’s Candy was binding appellate authority. Troester, Donohue,

and Camp represent an intervening change in the case law that validates the new

argument urged on appeal. (In re Marriage of Moschetta (1994) 25 Cal.App.4th 1218,

1227, fn. 12.)

Moreover, the medical center has not identified any disputed factual issue

precluding reliance on Camp. (See Krechuniak v. Noorzoy (2017) 11 Cal.App.5th 713,

725 [if a “‘new theory contemplates a factual situation . . . open to controversy’” and

“‘not put in issue or presented’” in the trial court, then “‘the opposing party should not be

required to defend against it on appeal’”].) It argues that section 2928 “require[s] a new

factual analysis” and that Camp is distinguishable because it does not address section

2928. On this record, we disagree that section 2928 renders Camp inapplicable.

26 Section 2928 states: “No deduction from the wages of an employee on account of

his coming late to work shall be made in excess of the proportionate wage which would

have been earned during the time actually lost, but for a loss of time less than thirty

minutes, a half hour’s wage may be deducted.” The medical center asserts that nothing in

the record shows that Woodworth would have lost time if the medical center had chosen

to apply section 2928 as opposed to rounding. The apparent argument is that Woodworth

might have fared better under rounding than she would have if the medical center had

deducted one-half hour’s wage every time she clocked in fewer than 30 minutes late. But

that comparative analysis would not change the fact that in actual practice, the medical

center was applying rounding and not section 2928. And the evidence showed that under

that rounding policy, Woodworth was not paid for all time worked.

The medical center further argues that we should decline to follow Camp because

the court did not identify any language in the Labor Code or wage orders prohibiting a

neutral rounding policy. On the contrary, Camp identified specific provisions of the

Labor Code and the relevant wage order that required employees to “‘be paid for all work

performed.’” (Camp, supra, 84 Cal.App.5th at p. 657, citing § 510, subd. (a), Cal. Code

Regs., tit. 8, § 11070, subds. 2(G), 3(A), 4(A).) And although Camp involved wage order

No. 7-2001 (Camp, at p. 648), and this case involves wage order 5-2001 (Wage Order 5),

there are no material differences between the relevant provisions of the two wage orders.

(Cal. Code Regs., tit. 8, § 11070, subds. 2(G), 3(A), 4(A); Cal. Code Regs., tit. 8,

§ 11050, subds. 2(K), 3(A), 4(A); see Singh v. Superior Court (2006) 140 Cal.App.4th

387, 390, 397-398 (Singh) [Wage Order 5 governs hospitals].)

27 The medical center lastly argues that Camp’s holding should apply prospectively

only, given the longstanding approval of rounding by the DLSE manual and See’s Candy.

The medical center contends that retroactive application would be unfair and violate its

due process rights. We are not persuaded. “The general rule that judicial decisions are

given retroactive effect is basic in our legal tradition.” (Newman v. Emerson Radio Corp.

(1989) 48 Cal.3d 973, 978.) In exceptional circumstances, “‘“fairness and public policy

may require that a decision be given only prospective application. [Citations.] Particular

considerations relevant to the retroactivity determination include the reasonableness of

the parties’ reliance on the former rule, the nature of the change as substantive or

procedural, retroactivity’s effect on the administration of justice, and the purposes to be

served by the new rule.’”” (Claxton v. Waters (2004) 34 Cal.4th 367, 378-379.) The

medical center relies on the reasonableness of its reliance on the pre-Camp authorities but

ignores the other relevant factors. The medical center thus fails to demonstrate that this

case warrants an exception to the general rule of retroactivity.

In sum, we agree with Camp that if an employer “can capture and has captured the

exact amount of time an employee has worked during a shift, the employer must pay the

employee for ‘all the time’ worked.” (Camp, supra, 84 Cal.App.5th at p. 660.) The

evidence in this case showed that under the rounding policy, (1) the medical center

captured the exact number of minutes employees worked, and (2) Woodworth and many

other employees were not paid for all time worked. The medical center therefore was not

entitled to summary adjudication on Woodworth’s individual rounding claim or the

PAGA rounding claim.

28 III. Motion to Strike the Putative Class Members’ Declarations

Woodworth contends that the court erred by denying her motion to strike the

putative class members’ declarations. She argues that the court abused its discretion

because she presented evidence that the medical center’s counsel behaved in a deceptive

and coercive manner with respect to the declarants. We conclude that Woodworth has

not shown an abuse of discretion.

Woodworth moved to certify five classes of current and former medical center

employees. The medical center offered 43 putative class member declarations in support

of its opposition. All 43 declarants were current employees of the medical center.

The declarations all stated that the declarant understood a former employee had

“filed a proposed class action lawsuit which alleges that she and other hourly employees

were denied rest breaks, not paid all wages owed due to an invalid [AWS] and failing to

include certain bonuses in calculating overtime, and provided with inaccurate paystubs.”

The final numbered paragraph of 42 of the declarations stated: “The statements in

this declaration are voluntary and I understand that I do not have any obligation to sign

this declaration. I understand that whether I choose to do so or not will not affect my

employment status in any way. I have not been pressured or promised anything in

connection with this declaration, nor have I been coerced to provide this declaration. I

have had the opportunity to review the contents of this declaration and make any changes

I believe are necessary to ensure that it is accurate. I understand that this declaration may

be used in the proposed class action case entitled Woodworth v. Loma Linda University

29 Medical Center. I have also been advised that I could potentially be a member of such a

class action if the Plaintiff is successful, and that my statement and this declaration could

affect whether this matter is certified as a class action and my potential recovery from

such a lawsuit, if any. I understand that the attorney who discussed this testimony with

me is the [medical center’s] attorney and that the [medical center] does not represent me

or the individual who brought this lawsuit. Finally, I know that if I ever become a

participant in the lawsuit, my interests will be opposed to [the medical center’s]

interests.” The 43rd declaration contained the same final numbered paragraph with one

minor change—the declarant crossed out “coerced” and handwrote “forced” in its place.

Woodworth moved to strike all of the putative class members’ declarations,

arguing that the medical center misled the declarants about the nature of the lawsuit and

obtained statements against the declarants’ interests in a coercive setting. She also

argued that the defense counsel had violated the California Rule of Professional Conduct

governing communications between an organization’s lawyer and the organization’s

constituents.

A few days after Woodworth moved to strike the declarations, she also filed an ex

parte application seeking to disqualify defense counsel or, in the alternative, to limit

counsel’s communications with putative class members. Like the motion to strike, the ex

parte application argued that defense counsel’s communications with the putative class

members were misleading and coercive, and the ex parte application also requested that

the court strike the declarations. The court ordered the ex parte application to proceed as

a noticed motion, giving the parties time to file opposition and reply briefs.

30 1. The Declarants’ Deposition Testimony

Woodworth based her motion to strike and ex parte application largely on the

deposition testimony of 10 declarants. She randomly selected the 10 deponents from the

group of 43 declarants. In the medical center’s opposition briefs, it also relied on

portions of the deposition testimony. We summarize relevant deposition testimony in the

following paragraphs.

Maricela Baca: Baca’s director told her that the director had to choose two people

from the department for an interview with the medical center’s lawyers regarding breaks.

The director said that someone was going to cover for Baca so that the lawyers could

interview her. The medical center’s lawyers told her about this case, but not “down to

detail.” They “mainly” told her that a former employee (a nurse) was suing the medical

center “over breaks and the three 12s.” Baca did not know that Woodworth was alleging

the medical center should have included Christmas bonuses when calculating the

overtime rate. She discussed her pay stub with the medical center’s lawyers, and she told

them that she understood it. No one explained to her that Woodworth was claiming an

employee should be able to look at his or her pay stub and see ‘“the total number of

hours’” worked.

Baca did not know that Woodworth had filed this lawsuit on behalf of the state,

and she did not know that Woodworth was seeking penalties for the state on behalf of the

medical center employees. No one told her that she would be considered an aggrieved

employee under PAGA, and no one told her that she might be a class member in this

31 case. No one explained to her that the plaintiff’s attorney was “on [her] side” and

“want[ed] the employees to be paid properly.”

Baca did not remember if anyone told her that her declaration would be filed in

court. The medical center’s lawyers did not say whether they were going to do anything

with the declaration. They did not tell her that her declaration might hurt Woodworth’s

chances of prevailing on the motion for class certification. No one told her to look at her

declaration before she signed it. But the statements about the “day-to-day work

environment” in her declaration were true. The statements in her declaration were also

voluntary, no one forced her to sign the declaration, and no one promised her anything

for signing it. She did not get a copy of her declaration.

Marissa Benter: Benter’s boss told her that she needed to meet with the medical

center’s lawyer regarding a declaration. Benter felt that she could refuse to go to the

meeting, and it was not a “scary” meeting. The medical center’s lawyer told her that

Woodworth’s case was a proposed class action. The lawyer told her that she could be a

potential member of the class because Woodworth was seeking to represent “the whole

hospital.” The lawyer explained that Woodworth was attempting to invalidate the AWS.

Benter did not know whether her declaration had been filed in court, but the

lawyer told her that the declaration was “[f]or the lawsuit.” Benter reviewed her

declaration and made changes before signing it. All of the statements in the final

numbered paragraph of her declaration were true.

Elvia Bermudez: A nurse manager asked Bermudez if she could go to a meeting

about a case against the medical center. The manager said that a person was suing the

32 medical center about breaks, and she said that if Bermudez did not feel comfortable going

to the meeting, Bermudez could refuse. Bermudez said that she would go. At the

meeting, the lawyers told her that they worked for a law firm that represented the medical

center. They explained that a person named “Nicole” was suing the medical center about

rest breaks “and all this stuff,” but she did not recall exactly what they said.

Bermudez did not remember the lawyers using the term “class action,” and they

did not tell her that if the lawsuit were successful, she would receive money. They did

not tell her that Woodworth was suing on behalf of all employees, and they did not tell

her that Woodworth was suing as a private attorney general. She also did not remember

them saying that Woodworth was suing on behalf of the state. She did not understand

what it meant “to be potentially a member of a class action” or “to be certified as a class

action.” The lawyers did not tell her that she could talk to the lawyer representing the

employees, and they did not tell her that she could contact Joseph Antonelli, who

represented Woodworth.

Bermudez did not know what the following sentence from her declaration meant:

“‘I know that if I ever become a participant in the lawsuit, my interests will be opposed to

[the medical center’s] interests.’” But she signed the declaration because she “was

agreeing” with what she had said, and no one forced her to sign it. She reviewed it line

by line before signing it. Woodworth’s counsel asked whether Bermudez would have

signed the declaration if she knew that the medical center would use it to defeat the class

action and that Bermudez would “‘not get money.’” Bermudez replied: “Well, I cannot

do just because the money. I just can say the truth about the money.”

33 With one minor correction to a date, Bermudez confirmed that everything in her

declaration was accurate. No one told Bermudez that the declaration would be filed in

court, and the lawyers did not tell her that the declaration might be against her interests.

But they told her that her declaration could be used by the medical center.

Steven Clark: Clark did not feel that the meeting with the medical center’s

lawyers was a coercive environment, and he did not feel intimidated. The lawyers

introduced themselves and told him that they represented the medical center. They told

him that a former employee was suing the medical center regarding rest periods, pay, and

“something else,” but he did not remember their exact words. Before he signed his

declaration, he did not know that Woodworth’s pay stub claim involved the failure to put

the words “‘Total Hours Worked’” on the pay stubs.

Clark did not remember anyone using the term “private attorney general” before

he signed his declaration. He had never heard of the “Private Attorney General Act of

California.” He did not remember the medical center’s lawyers explaining that

Woodworth was representing the employees on behalf of the state. Nobody explained

that Woodworth was seeking more than $60 million in penalties for failing to put “‘Total

Hours Worked’” on the pay stubs. Clark did not remember the lawyers telling him that

he was a potential class member, but he read that in the declaration. Clark also did not

remember the lawyers saying that he had a right to speak to the lawyers representing

Woodworth or the employees.

When Clark signed the declaration, he believed that the declaration “could be used

to support the case.” The lawyers did not specify how they would use the declaration.

34 He did not remember if they told him that Woodworth had filed a class certification

motion, and they did not explain that his declaration could be against his interests. Clark

confirmed that he understood the statements in the final numbered paragraph of his

declaration at the time he signed it. He reviewed the declaration before signing it and

believed everything in it was accurate. He would not make any changes to the statements

in his declaration about his experience at the medical center. He did not get a copy of his

declaration.

Devon Dean: One of Dean’s supervisors asked whether she would be willing to

talk with “some people for the [medical center] about meal breaks.” The supervisor did

not say that the meeting involved a lawsuit. The lawyers that interviewed her did not

explain “anything really about the case.”

The medical center’s lawyers did not tell Dean that Woodworth was suing on

behalf of the state and all employees as a private attorney general. At one point, she

testified that she did not remember if the lawyers told her that the case involved a class

action claim or that she might be a member of a class action. But at another point, she

testified that they said this could be a class action lawsuit and that she could be included

as a class member. Before Dean signed her declaration, the lawyers did not tell her that

she could speak to Woodworth’s attorneys. They did not mention Antonelli by name.

She did not remember the lawyers telling her that she could talk to any lawyer of her

choosing about this case.

The medical center’s lawyers did not explain how her declaration could affect her

potential recovery from this lawsuit. The lawyers said that her declaration could be used

35 in court and that it might be used against her as a potential class member, but she did not

recall what they said about how it could be used. The lawyers “wanted to make sure that

[she] agreed with everything that [she] was about to sign,” so they had her review her

declaration. Dean reviewed it and signed it. She did not get a copy of her declaration.

Rebecca Manzo: Manzo’s manager asked her to go to a meeting, and Manzo

agreed. Manzo did “not really” know what the meeting was about before she got there.

She met with two women whom she believed were lawyers, and she knew that they

represented the medical center. They told her that a former employee was suing the

hospital, and they wanted to ask her some questions. Manzo could not recall whether the

medical center’s lawyers told her about Woodworth’s claims.

The medical center’s lawyers told Manzo that Woodworth had filed a class action,

and Manzo knew that she could be a member of a class action, but they did not tell her

what a class action was. They did not tell her that Woodworth was seeking to represent

other hourly employees, and she did not understand what a class action was when she

signed her declaration.

The lawyers told her that the judge in this case might see her declaration, but they

did not tell her that the medical center would use the declaration to oppose Woodworth’s

request for class certification. Manzo testified that each of the statements in the final

numbered paragraph of her declaration were true at the time she signed it. She reviewed

her declaration before signing it. She explained: “So I just know that when I signed this,

I was willing and voluntarily [sic] to just give the truth of whatever I know to the best of

36 my ability and whoever it’s going to help or not help.” She did not get a copy of her

Craig Midget: Midget’s supervisor asked Midget if he “would . . . mind going to

talk to the lawyers.” He felt that he could refuse to go to the meeting. He could not

remember what the supervisor said about the subject of the interview. When Midget met

with the lawyers, he understood that they represented the medical center. The lawyers

told him that Woodworth was trying “to invalidate the [AWS], the voting part of it.” He

might have been told that Woodworth was seeking overtime wages for her AWS claim,

but he could not remember. He could not remember if he had been told about her rest

period allegations, but he had been told about her allegations regarding pay stubs.

Midget asked the medical center’s lawyers about “the exact nature of this lawsuit,”

and they explained that the plaintiff had alleged a class action on behalf of herself and

other hourly employees. They did not say that Midget could be a member of the class if

Woodworth were successful, but he understood that he might be entitled to some money

if Woodworth were successful.

The medical center’s lawyers stressed that his declaration “would go to the other

side,” and he assumed that meant the judge would see it also. He reviewed his

declaration, and he did not think that he made any changes to it. Midget did not recall the

lawyers giving him the contact information for the plaintiff’s lawyers. He did not receive

a document from the medical center’s lawyers asking for a conflict waiver.

Brittany Ormerod: Ormerod’s manager asked her “to meet with our lawyers and

talk about the rest breaks and other things that might come up due to a lawsuit that was

37 going on with the hospital.” When she met with the lawyers, they told her that they

represented the medical center, and she did not think that they represented her. She felt

that she could have told her manager that she did not want to meet with the lawyers, and

she felt that she could leave the meeting at any time.

The medical center’s lawyers did “[n]ot really” tell Ormerod anything about this

lawsuit. They told her about the rest period allegations, but she did not think they

mentioned a claim for overtime or allegations about pay stubs, and she could not

remember any allegations about the Christmas bonus. But they asked her questions about

all of those things. The lawyers might have told her that Woodworth had brought a class

action, but she did not recall. She understood that she could be a class member if

Woodworth were successful, although she did not recall what the lawyers said about that

possibility.

The medical center’s lawyers told Ormerod that her declaration could be used in

the lawsuit, but she did not recall if they told her for “which side” it could be used. She

did not know whether they had filed her declaration. She did not receive or sign any

documents referring to a waiver of any conflict. She reviewed her declaration before she

signed it, and everything in it was truthful.

Dominic Ortiz: Ortiz’s managers asked him if he would be willing to meet with

the medical center’s lawyers. When he met with the lawyers, they told him that they

represented the medical center. They wanted to know about his rest breaks, and they told

him that “there was someone filing a lawsuit.” He believed they told him that this case

was a class action, but no one explained that Woodworth had brought the action on behalf

38 of herself and all hourly nonexempt employees. He did not think that they told him he

would stand to win if Woodworth won the lawsuit. He does not remember whether they

said anything about the lawsuit also being a private attorney general action. No one

explained that employees can sue on behalf of the state and all the employees at a place

of business.

Ortiz did not remember the medical center’s lawyers mentioning that there was a

plaintiff’s lawyer in this case or providing the name of that person. They did not tell him

that he could talk to Woodworth’s lawyers. They told him that his declaration would

probably be used in this lawsuit, but they did not explain how. He did not know how his

declaration could affect whether the matter was certified as a class action. Ortiz

understood that if he had any questions, the medical center’s lawyers would answer them,

but he did not have any questions. He reviewed his declaration and made one change to

it before he signed it.

Elizabeth Picazo: Picazo’s supervisor asked if she could go to a meeting to talk

about how everything works in Picazo’s unit, and Picazo agreed. At the meeting, the

medical center’s lawyers told her that they represented the hospital. They told her that

there was a pending lawsuit, they wanted to ask her questions, and they “wanted [her]

honest opinion.” She did not remember if they told her what the lawsuit was about, and

she did not remember their words “exactly.” They did not say anything about the

Christmas bonus in the meeting. No one explained Woodworth’s claim that the pay stubs

should include “‘Total Hours Worked’” on them. Picazo did not know whether

Woodworth wanted “to get rid of” the AWS. No one explained that Woodworth was

39 claiming the medical center “didn’t do the right things” necessary to pay the employees

“straight time for 12 hours,” and no one explained that Woodworth was seeking backpay

for everyone who worked overtime on 12-hour shifts.

Picazo did not recall if the medical center’s lawyers told her that Woodworth was

suing on behalf of other people. She did not know what a class action was, and they did

not tell her that she was a potential class member. She did not know that she had the

chance of recovering some money if this lawsuit were successful. It was possible the

medical center’s lawyers told her that Woodworth was suing on behalf of the state as a

private attorney general. But Picazo had never heard of the “Private Attorney General

Act.” No one explained to her that this lawsuit was seeking more than $60 million in

penalties, and no one told her that she could potentially recover money if Woodworth

won on her private attorney general claim.

The medical center’s lawyers did not tell Picazo that her “‘declaration could affect

whether this matter is certified as a class action and [her] potential recovery from such a

lawsuit, if any.’” She did not understand what those words meant when she read and

signed her declaration, but she signed it because she was “honest on the questions” the

lawyers asked her in the meeting. They told her that the declaration was in support of the

medical center and that it was possible her declaration would be filed in court. The

lawyers did not tell her how she could contact the lawyer for the plaintiff, and they did

not tell her Antonelli’s name. After showing Picazo her declaration and asking whether it

was accurate, the lawyers said that she was not obligated to sign it. There was nothing

inaccurate in the declaration about her “actual work” at the medical center. Picazo told

40 the lawyers that she had “‘no problem signing”’ it, and she asked for a copy of it, which

they gave her.

2. Defense Counsel’s Declaration in Opposition to the Motion to Strike

In opposition to the motion to strike the putative class members’ declarations, the

medical center also relied on the declaration of Rachel Lee, a partner at the firm

representing the medical center. Lee and an associate attorney at her firm conducted the

interviews of the putative class members. The interviews took place at the medical center

in a private room. No medical center employees were present at the interviews, other

than the employees being interviewed.

Lee’s declaration described “standard disclosures” that defense counsel made

during each interview. The attorneys introduced themselves and informed the employees

that counsel represented only the medical center and did not represent the employees.

Next, defense counsel asked whether an attorney represented the employees and whether

an attorney had contacted them regarding this case. Defense counsel briefly described

“the proposed class action lawsuit and the claims at issue.” Lee and the associate

attorney explained that they wanted to talk to the employees because “this was being

brought as a class action” and counsel “wanted to find out what the employee[s] had

experienced in [their] department.”

Defense counsel also explained that the interviews were voluntary and that the

employees did not have to participate in the interviews. Counsel stated that the medical

center could not retaliate against the employees for participating or failing to participate

in the interviews or for any information provided during interviews. Counsel then asked

41 the employees to affirm that they were comfortable proceeding with the interview and

whether they had any questions before starting the interview. According to Lee, the

“amount of information provided to the employees about the lawsuit varied depending on

whether they had specific questions about it.”

For those employees who chose to participate in the interviews, defense counsel

asked that they be as truthful, honest, and accurate as possible, and counsel told them that

they could decline to respond to any question. At no time did counsel suggest or

recommend to the employees that they should answer the questions in a certain way. At

the end of the interviews, counsel asked whether the employees would be willing to

provide a declaration summarizing the information that they had conveyed. Counsel

advised them that the declaration would be under oath and subject to the perjury laws,

that the declaration was voluntary, and that they did not have to provide one. Counsel did

not promise the employees anything in exchange for their declarations, and counsel did

not obtain declarations from any employee who said that they did not want to provide

one.

If an employee was willing to provide a declaration, defense counsel prepared and

printed it. Counsel gave the employees a chance to review their declarations and make

changes to ensure that they were accurate, and some employees made changes. Counsel

asked the employees to let counsel know if they had questions about their declarations.

Defense counsel advised the employees that the declarations “would be used in the

case of Woodworth v. Loma Linda University Medical Center and filed with the court to

defend [the medical center] against the Plaintiff’s claims.” Counsel explained to the

42 employees “that the attorney on the other side is trying to bring this case as a class

action” and that counsel was “going to use the declarations to try to prevent that from

happening, or words to that effect.” Consistent with the final numbered paragraph of the

declarations, counsel advised the employees that (1) “they could potentially be members

of the class if Plaintiff succeeded on her motion,” (2) “their statements could affect

whether the case was certified as a class action and their potential recovery from the

lawsuit,” and (3) “if they ever became participants in the lawsuit, their interests would be

opposed to [the medical center’s] interests.” Some employees had questions about those

disclosures, so counsel provided “additional information” to those employees.

3. Defense Counsel’s PowerPoint Presentation

The 43 putative class member interviews took place between January 2 and

January 14, 2019. The depositions of the 10 putative class members took place between

February 7 and February 11, 2019. Before the depositions, on February 6, 2019, defense

counsel met with the 10 deponents and reviewed a 23-slide PowerPoint presentation with

them. At that meeting, defense counsel confirmed that each employee “already knew and

continued to understand” that counsel represented the medical center and not the

individual employees.

The PowerPoint presentation included slides briefly describing this lawsuit,

identifying the medical center’s counsel, and identifying Woodworth’s counsel. One

slide explained the “[p]urpose of a deposition” and stated: “Your obligation is to tell the

truth. [¶] You are not required to guess about anything. [¶] If you don’t know or don’t

remember, saying you don’t know is perfectly appropriate.” Another slide explained the

43 “[i]ssues in the lawsuit” as (1) “AWS elections,” (2) “Regular rate,” (3) “Overtime,” (4)

“Wage statements,” (5) “Rest period,” and (6) “PAGA.” Five more slides briefly

addressed the AWS issue, the regular rate claim, the overtime claim, the rest period

claim, and the wage statement claim. Other slides showed the medical center’s rest

period policies and sample wage statements.

4. The Court’s Ruling

At the hearing on the motion to strike the putative class members’ declarations and

the motion to disqualify defense counsel, the court indicated that it had reviewed all of

the materials identified in its written tentative decision. The tentative decision listed all

of the parties’ filings, including the hundreds of pages of deposition excerpts, the putative

class members’ declarations, and defense counsel’s declaration. At the end of the

hearing, the court adopted its tentative decision denying both motions.

As to the motion to disqualify defense counsel, the court’s written ruling

summarized the evidence on which the parties relied. The court observed that some of

the deposition testimony supported Woodworth’s argument that the deponents did not

understand or retain all of the information that defense counsel conveyed. But the court

also observed that the disclosures in the putative class members’ declarations and Lee’s

declaration regarding the interviews were “more reliable” than the “inconsistent” and

“less clear” deposition testimony of the putative class members. The court also

concluded that Woodworth based her motion largely on federal district court cases

“involving facts considerably more serious tha[n] those at issue here.” The court ruled

that the facts and authorities did not support disqualification.

44 As to the motion to strike, the court’s written ruling noted that Woodworth made

largely the same arguments in support of her motion to disqualify defense counsel. The

court determined that there was no evidence defense counsel had affirmatively

misrepresented facts to the putative class members. The court also observed that, as it

had explained in connection with the motion to disqualify, the putative class members’

declarations and Lee’s declaration “demonstrate the lack of coercion or unethical tactics

by defense counsel.” 4 In addition, the court determined that, under the Code of Civil

Procedure, motions to strike applied only to pleadings and not to declarations. The court

ruled that (1) the motion to strike was procedurally defective and (2) the evidence did not

support Woodworth’s argument that defense counsel had misled the declarants. The

court therefore denied the motion.

B. Analysis

In employment litigation, employers may investigate a plaintiff-employee’s

allegations and obtain statements from other employees. (Barriga, supra, 51 Cal.App.5th

at p. 327; see Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The

Rutter Group 2022) ¶ 14:92.1 [before class certification, “it is not ethically improper for

defendant to contact members of the putative class, conduct informal discovery or

4 Woodworth argues that the trial court should have disregarded Lee’s declaration because Lee improperly summarized 43 interviews and drew “numerous improper legal conclusions.” Woodworth has forfeited the argument for two reasons. First, she did not object to Lee’s declaration in the trial court. (Evid. Code, § 353, subd. (a); Seibert v. City of San Jose (2016) 247 Cal.App.4th 1027, 1057.) Second, the argument consists of a conclusory assertion with no citation to legal authority and no identification of which statements amounted to improper legal conclusions. (Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1303.)

45 attempt to defeat the class action by explaining its position, offering settlements, etc.”].)

However, “[c]ourts must be cognizant of the danger of coercion and exercise a healthy

skepticism when assessing the evidentiary weight to be given to employee statements.”

(Barriga, at p. 327.) Thus, when an employer offers declarations of employees in

opposition to a motion for class certification, the trial court has “the duty to carefully

scrutinize” those declarations “for coercion or abuse.” (Id. at p. 323.)

Some federal district courts have “concluded an ongoing employer-employee

relationship between the class opponent and putative class members is inherently

conducive to coercive influence.” (Barriga, supra, 51 Cal.App.5th at p. 326.) But “the

mere existence of a potentially or inherently coercive relationship is insufficient to

support an order” striking employee declarations or “severely discounting the weight to

be given those declarations.” (Id. at p. 327.) On the other hand, “a compelling showing

that the employees were misled or that the declarations were not freely and voluntarily

given will suffice.” (Ibid.)

“‘In considering whether pre-certification communications between employers

and employees are sufficiently deceptive or coercive to warrant relief, courts have

considered several factors, including whether the employer adequately informed the

employees about: (1) the details underlying the lawsuit, (2) the nature and purpose of the

communications, and (3) the fact that any defense attorneys conducting the

communications represent the employer and not the employee.’” (Barriga, supra, 51

Cal.App.5th at p. 330.)

46 If the court concludes that the employer obtained the employee declarations

through coercion or abuse, it has “broad discretion to either strike some or all of the

declarations or to discount the evidentiary weight to be given the declarations.” (Barriga,

supra, 51 Cal.App.5th at p. 323; see Sav-On Drug Stores, Inc. v. Superior Court (2004)

34 Cal.4th 319, 334 (Sav-On Drug Stores) [weight accorded to declarations is “a matter

generally entrusted to the trial court’s discretion”].) In deciding whether the court abused

its discretion, “[w]e are also bound in our reviewing function by the substantial evidence

rule. [Citations.] Thus, if substantial evidence supports the trial court’s express or

implied findings of fact, we review the resulting legal conclusions for an abuse of

discretion. [Citation.] The judgment of the trial court is presumed correct; all

intendments and presumptions are indulged to support the judgment; conflicts in the

[evidence] must be resolved in favor of the prevailing party, and the trial court’s

resolution of any factual disputes arising from the evidence is conclusive.” (In re

Marriage of Zimmerman (1993) 16 Cal.App.4th 556, 561-562.)

Here, the court did not abuse its discretion by denying the motion to strike the

putative class members’ declarations. The record contains substantial evidence

supporting the trial court’s finding that there was a lack of coercion. Eight of the 10

employees testified that their supervisors or managers asked if they would attend the

interview with defense counsel, not that they were ordered to attend. Several of those

employees also said that they felt comfortable refusing the request or were told that they

could refuse the request, and one testified that he did not feel that the environment was

coercive. Two of the employees, Baca and Benter, testified that their supervisors told

47 them to attend, not that they asked the employees to attend. But Benter also felt that she

could refuse to go to the meeting, and Baca testified that the statements in her declaration

were voluntary, no one forced her to sign it, and no one promised her anything for

signing it. In addition, according to Lee’s declaration, defense counsel told all of the

employees that the interviews were voluntary and that the medical center could not

retaliate against them for failing to participate. Defense counsel also told the employees

that providing a declaration was voluntary, and counsel asked the employees whether

they would be willing to provide one. Defense counsel did not obtain declarations from

employees who said that they were unwilling. The declarations stated that the declarants’

statements were voluntary, and all but one of the employees testified that they reviewed

their declarations before signing.

The record also contains substantial evidence supporting the finding that defense

counsel did not affirmatively mislead the declarants. The record shows that defense

counsel informed the employees that counsel represented the medical center, not the

employees. Lee’s declaration provided evidence of that, and several employees testified

that they were told defense counsel represented the medical center or that they

understood that. The declarations all stated that the declarants understood defense

counsel represented the medical center and not the employees. And there was no

evidence that the employees failed to understand whom defense counsel represented.

Further, there is substantial evidence that defense counsel “‘adequately informed

the employees about . . . the details underlying the lawsuit.’” (Barriga, supra, 51

Cal.App.5th at p. 330.) According to Lee, defense counsel briefly described this lawsuit

48 and Woodworth’s claims. Counsel also told the employees that Woodworth had brought

the case as a class action and that they could potentially be members of the class if she

were successful. Further, the employee declarations contained a brief description of

Woodworth’s claims and explained that the case was a proposed class action. And much

of the employee testimony substantiated defense counsel’s statement that counsel had

described the lawsuit and Woodworth’s claims. For instance, Baca testified that defense

counsel told her that a former employee was suing the medical center “over breaks and

three 12s” (an apparent reference to the AWS issue). Benter said that counsel told her

that Woodworth had filed a proposed class action and that Woodworth was seeking to

represent “the whole hospital.” Bermudez said that counsel told her that Woodworth was

suing over rest breaks and other things, but she could not recall exactly what was said.

Clark said something similar—counsel told him that the former employee was suing the

medical center over rest periods, pay, and something else, but he did not recall what else

was said. Dean said that she was told this case could be a class action and that she could

be included as a class member. According to Midget, counsel told him that Woodworth

had brought a class action on behalf of herself and other hourly employees. Midget

understood that he might be entitled to some money if Woodworth were successful. He

was also told about Woodworth’s pay stub claim and that Woodworth was trying to

invalidate the AWS, and he might have been told that she was seeking overtime wages

for her AWS claim.

Lastly, there is substantial evidence that defense counsel informed the employees

about “‘the nature and purpose’” of the interviews. (Barriga, supra, 51 Cal.App.5th at

49 p. 330.) According to Lee, defense counsel told the employees that the declarations

would be filed in court to defend the medical center against Woodworth’s claims.

Counsel also explained that the medical center was going to use the declarations to try to

prevent the case from becoming a class action, “or words to that effect.” And counsel

advised the employees that their statements could affect (1) whether the court certified

the case as a class action and (2) the employees’ potential recovery from the action.

Again, employee testimony corroborated much of Lee’s declaration on those points.

Benter said that defense counsel told her that the declaration was for this action, and

Benter confirmed the truth of the statements in the final numbered paragraph of her

declaration. That is, she understood that she could be a member of the class if

Woodworth were successful and that her declaration could affect whether the court

certified this case as a class action. Clark and Manzo similarly confirmed that, at the time

they signed their declarations, the statements in the final numbered paragraph were true.

Dean testified that counsel said that her declaration might be used in court and against her

as a potential class member. According to Ormerod, defense counsel told her that her

declaration could be used in this case. Similarly, Ortiz said that defense counsel told him

that his declaration would probably be used in this case.

In sum, the record contains substantial evidence that the medical center did not

coerce the employees or affirmatively mislead them into providing declarations. This is

not a case in which there was a compelling showing of coercion or abuse. On this record,

the trial court did not abuse its discretion by declining to strike the employees’

declarations.

50 Woodworth’s arguments do not convince us otherwise. She argues that the court

erred because defense counsel affirmatively misrepresented that Woodworth sought to

invalidate the AWS. The declarations do state that the declarants understood that

Woodworth was alleging she and other hourly employees were “not paid all wages owed

due to an invalid” AWS, but that was not a misrepresentation. That was what the TAC

alleged—that the AWS was “null and void” because of defects in the process by which

employees voted to implement it, and the medical center therefore owed overtime

backpay.

Woodworth also argues that defense counsel failed to obtain a signed waiver of or

consent to any conflict of interest. The single legal authority that Woodworth cites on

this point, Richardson v. Interstate Hotels & Resorts, Inc. (N.D. Cal. Mar. 12, 2018, No.

C 16-06772 WHA) 2018 U.S.Dist. Lexis 40377, does not show an abuse of discretion. In

Richardson, the employer’s defense counsel also represented the employee declarants at

their depositions “without obtaining informed written consent” as to the conflict of

interest. (Id. at p. *23.) The failure to obtain the employees’ consent regarding the

conflict was only one factor, among others, that justified striking the employees’

declarations. (Id. at pp. *19-21.) Woodworth does not contend that defense counsel

represented the employees at their depositions. And Richardson did not state a blanket

rule that a waiver of any conflict of interest was required in every case.

Woodworth further argues that defense counsel omitted important information.

For example, she asserts that counsel did not (1) provide a copy of the TAC, (2) provide

contact information for Woodworth’s counsel, (3) give full detail about each of

51 Woodworth’s claims, including that she was alleging a PAGA claim, (4) explain that

employees could become class members and would benefit if Woodworth prevailed, and

(5) explain how the medical center would use the declarations or how they could affect

any recovery. There is evidence that defense counsel explained some of these points, like

the fact that employees could be class members if Woodworth prevailed on her motion or

that the medical center was going to use the declarations to try to prevent the case from

becoming a class action. To the extent that Woodworth relies on conflicting evidence,

we defer to the trial court’s resolution of conflicts in the evidence and do not reweigh the

evidence. (Eidsmore v. RBB, Inc. (1994) 25 Cal.App.4th 189, 195.)

As to other points that are undisputed—for instance, defense counsel did not

provide a copy of the TAC or contact information for Woodworth’s counsel—

Woodworth fails to show an abuse of discretion. She cites a handful of federal district

court decisions in which the trial courts found defense counsel’s communications with

putative class members coercive or misleading on the basis of various omissions, plus

other evidence. The cases are distinguishable on their facts and do not compel the

conclusion that the trial court here abused its discretion. (E.g., Camp v. Alexander (N.D.

Cal. 2014) 300 F.R.D. 617, 623-624 [letter sent to employees to convince them to sign

opt-out declaration predicted that the class action, if successful, would cause the

employer to shut down, “with the obvious consequence that employees would lose their

jobs”]; Acosta v. Southwest Fuel Mgmt. (C.D.Cal. Feb. 20, 2018, No. CV 16-4547 FMO

(AGRx)) 2018 U.S.Dist. Lexis 203389, at pp. *4-5 [employees instructed to attend

meeting with defense counsel where counsel did not say the meeting was voluntary; one

52 employee signed his declaration because he felt employer would fire him or cut his hours

if he did not, and other employees similarly testified]; Quezada v. Schneider Logistics

Transloading & Distrib. (C.D.Cal. Mar. 25, 2013, No. CV 12-2188 CAS (DTBx)) 2013

U.S.Dist. Lexis 47639, at pp. *14, *16-17 (Quezada) [employees were summoned to

meeting with defense counsel over loudspeaker or ordered to attend; defense counsel told

employees that interviews were an “‘internal investigation’”; employees were not told

counsel was gathering evidence to use against them in a lawsuit or that document they

were signing was a sworn declaration, and some employees felt pressure to sign].)

Woodworth also contends that the court abused its discretion because defense

counsel violated the California Rules of Professional Conduct. (Undesignated rule

references are to the Rules of Professional Conduct.) More specifically, she asserts that

counsel violated rules 1.13(f) and 4.3(a) by coaching the employees before their

depositions, which created the false impression that defense counsel represented the

employees and amounted to giving legal advice.

Some federal district courts have concluded that violations of former rule 3-600,

the predecessor to rule 1.13, weigh in favor of finding improper communications.

(Quezada, supra, 2013 U.S.Dist. Lexis 47639, at pp. *11-12; see Sprengel v. Zbylut

(2019) 40 Cal.App.5th 1028, 1042 & fn. 3 [former rule 3-600 preceded rule 1.13].) But

Woodworth has not shown a violation of rule 1.13 or 4.3 here. Rule 1.13(f) states: “In

dealing with an organization’s constituents, a lawyer representing the organization shall

explain the identity of the lawyer’s client whenever the lawyer knows or reasonably

should know that the organization’s interests are adverse to those of the constituent(s)

53 with whom the lawyer is dealing.” (Asterisk omitted.) Ample evidence shows that

defense counsel complied with that rule by explaining that counsel represented the

medical center. As to rule 4.3(a), it states in relevant part: “If the lawyer knows or

reasonably should know that the interests of the unrepresented person are in conflict with

the interests of the client, the lawyer shall not give legal advice to that person, except that

the lawyer may, but is not required to, advise the person to secure counsel.” (Asterisks

omitted.) Woodworth cites no evidence that after the predeposition meeting, the

employees had the impression that defense counsel represented them. Moreover, beyond

the conclusory assertion that the employees were coached, she does not explain what

precisely defense counsel did at the meeting that amounted to providing legal advice. We

have no duty to develop the argument for her. (Cahill v. San Diego Gas & Electric Co.

(2011) 194 Cal.App.4th 939, 956 (Cahill).)

Finally, in her reply brief, Woodworth argues that this court’s decision in Barriga

requires us to reverse the order denying the motion to strike. (We decided Barriga after

Woodworth had filed her opening brief.) While some of Barriga’s statements of the law

are relevant here, it does not compel a reversal. The facts of the case render it materially

distinguishable. In Barriga, we reversed for the trial court to reconsider the motion to

strike employee declarations. (Barriga, supra, 51 Cal.App.5th at p. 338.) We did that for

two reasons. First, the court concluded that it lacked statutory authority to strike the

employee declarations. (Id. at p. 335.) And although the court also addressed the merits

of the plaintiff’s argument, it was “not entirely clear the court scrutinized the declarations

54 from the perspective that communications between a class opponent and its current

employees are fraught with potential abuse.” (Ibid.)

Second, the trial court “misunderstood the scope of its authority,” because it ruled

that the federal case law on which the plaintiff relied did not warrant striking the

declarations of employees who were not putative class members (which amounted to 121

of the 174 declarations at issue). (Barriga, supra, 51 Cal.App.5th at p. 335.) We held

that the court had a duty to scrutinize all of the declarations and had the authority to strike

any of them, regardless of whether the declarants were putative class members. (Id. at

p. 336.)

The circumstances that compelled reversal in Barriga are not present here. The

record demonstrates that the trial court carefully scrutinized the declarations for coercion

and abuse. Even if the court ruled that the Code of Civil Procedure did not authorize the

motion to strike, the record is clear that the court also considered all of the evidence and

ruled on the merits of the motion. Importantly, the court considered essentially the same

evidence and arguments in connection with the motion to disqualify defense counsel.

The court did not question the procedural validity of the motion to disqualify and ruled

purely on the merits. Moreover, the court here did not misunderstand the scope of its

authority in the manner at issue in Barriga; the declarants were all putative class

members, so there was no question about whether the court had authority to strike

declarations from nonmembers. Accordingly, there was no reason to believe that the

court carefully scrutinized some declarations but not others.

55 For all of these reasons, we conclude that the court did not abuse its discretion by

denying Woodworth’s motion to strike the putative class members’ declarations.

IV. Motion for Class Certification

Woodworth contends that the court abused its discretion by denying her motion

for class certification. We agree that the court abused its discretion as to the class

proposed for her stand-alone wage statement claim. But as to the other classes that she

sought to certify, the court did not abuse its discretion.

A. Overview of Class Certification Principles and Standard of Review

“[T]he class action proponent bears the burden of establishing the propriety of

class certification.” (Washington Mutual Bank v. Superior Court (2001) 24 Cal.4th 906,

922.) The movant “must demonstrate the existence of an ascertainable and sufficiently

numerous class, a well-defined community of interest, and substantial benefits from

certification that render proceeding as a class superior to the alternatives.” (Brinker

Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1021 (Brinker).) “‘In turn,

the “community of interest requirement embodies three factors: (1) predominant

common questions of law or fact; (2) class representatives with claims or defenses typical

of the class; and (3) class representatives who can adequately represent the class.”’”

(Ibid.)

The predominance element “hinges on ‘whether the theory of recovery advanced

by the proponents of certification is, as an analytical matter, likely to prove amenable to

class treatment.’” (Brinker, supra, 53 Cal.4th at p. 1021.) The “court must examine the

plaintiff’s theory of recovery, assess the nature of the legal and factual disputes likely to

56 be presented, and decide whether individual or common issues predominate.” (Id. at

p. 1025.) “The ‘ultimate question’” is “whether ‘the issues which may be jointly tried,

when compared with those requiring separate adjudication, are so numerous or

substantial that the maintenance of a class action would be advantageous to the judicial

process and to the litigants.’” (Id. at p. 1021.)

“[W]hether common or individual questions predominate will often depend upon

resolution of issues closely tied to the merits.” (Brinker, supra, 53 Cal.4th at p. 1024.)

To assess predominance, the trial court must examine the law applicable to the plaintiff’s

causes of action and “determine whether the elements necessary to establish liability are

susceptible of common proof or, if not, whether there are ways to manage effectively

proof of any elements that may require individualized evidence.” (Ibid.) In addition, the

court must consider the defendant’s affirmative defenses, because the individualized

issues presented by those defenses may predominate over common issues. (Walsh v.

IKON Office Solutions, Inc. (2007) 148 Cal.App.4th 1440, 1450.)

Even if common questions predominate, “[i]n considering whether a class action is

a superior device for resolving a controversy,” the court “must pay careful attention” to

the manageability of any individual issues, including those arising from affirmative

defenses. (Duran v. U.S. Bank National Assn. (2014) 59 Cal.4th 1, 29 (Duran).) Class

certification is appropriate only if the plaintiff’s trial plan shows how the individual

issues can be managed fairly and efficiently. (Id. at pp. 27, 29.) “[A]ny procedure to

determine the defendant’s liability to the class must still permit the defendant to introduce

its own evidence, both to challenge the plaintiffs’ showing and to reduce overall

57 damages.” (Id. at p. 38.) The court cannot abridge the defendant’s presentation of a

defense “simply because that defense [is] cumbersome to litigate in a class action.”

(Id. at p. 35.)

Trial courts have broad discretion to grant or deny certification because they are

“ideally situated to evaluate the efficiencies and practicalities of permitting group action.”

(Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435 (Linder).) Our review is “narrowly

circumscribed.” (Brinker, supra, 53 Cal.4th at p. 1022.) “[W]e must examine the trial

court’s reasons for denying class certification. ‘Any valid pertinent reason stated will be

sufficient to uphold the order.’” (Linder, supra, at p. 436.) But if the court’s stated

reasons “are erroneous, we must reverse, whether or not other reasons not relied upon

might have supported the ruling.” (Ayala v. Antelope Valley Newspapers, Inc. (2014) 59

Cal.4th 522, 530 (Ayala).)

We review the court’s order granting or denying certification “‘for a manifest

abuse of discretion.’” (Brinker, supra, 53 Cal.4th at p. 1022.) At the same time, we

review the trial court’s underlying factual determinations for substantial evidence,

presuming in favor of the order “‘the existence of every fact the trial court could

reasonably deduce from the record.’” (Ibid.) Overall, we will not disturb the court’s

order “‘unless (1) it is unsupported by substantial evidence, (2) it rests on improper

criteria, or (3) it rests on erroneous legal assumptions.’” (Ibid.)

The predominance element presents a factual question, so we review the trial

court’s predominance finding for substantial evidence. (Brinker, supra, 53 Cal.4th at

p. 1022; Sav-On Drug Stores, supra, 34 Cal.4th at p. 328.) “[I]f the parties’ evidence is

58 conflicting on the issue of whether common or individual questions predominate . . . , the

trial court is permitted to credit one party’s evidence over the other’s in determining

whether the requirements for class certification have been met.” (Dailey v. Sears,

Roebuck & Co. (2013) 214 Cal.App.4th 974, 991 (Dailey); Sav-On Drug Stores, at p. 331

[“the trial court was within its discretion to credit plaintiffs’ evidence on these points over

defendant’s, and we have no authority to substitute our own judgment for the trial court’s

respecting this or any other conflict in the evidence”].) We need not conclude that the

prevailing party’s evidence is compelling or that the trial court would have abused its

discretion if it had credited the other party’s evidence instead. (Sav-On Drug Stores, at

p. 331.) “‘[I]t is of no consequence that the trial court believing other evidence, or

drawing other reasonable inferences, might have reached a contrary conclusion.’” (Ibid.)

B. Woodworth’s Class Certification Motion

Woodworth moved to certify five classes of current and former medical center

employees. The proposed “‘AWS Overtime Class’” consisted of all hourly nonexempt

employees who were scheduled to work and did work at least one day of more than eight

hours and up to 12 hours without receiving overtime pay. (Boldface omitted.)

The proposed “‘Regular Rate Class’” consisted of all hourly nonexempt

employees who were paid overtime or a missed meal or rest period premium (the missed

59 break premium) in a week when the employee earned a Christmas bonus or a “flat sum

bonus.” 5 (Boldface omitted.)

The proposed “‘Rest Break Class’” consisted of all hourly nonexempt employees

who were in patient care and worked under the medical center’s policy requiring

employees to remain on premises during their rest periods. “Alternatively,” Woodworth

proposed a Rest Break Class consisting of nonexempt patient care employees who did not

take at least one rest period because the medical center failed to provide a relief worker.

(Boldface omitted.)

The proposed “‘Wage Statement Class’” consisted of all hourly nonexempt

employees who received a wage statement that did not include “‘Total Hours Worked’”

or did not accurately report hourly rates and all wages earned. (Boldface omitted.)

Woodworth characterized this as both a stand-alone class and a derivative class.

The proposed “‘Waiting Time Penalty Class’” consisted of all hourly nonexempt

employees who no longer worked for the medical center but were members of the AWS

Overtime Class, the Regular Rate Class, or the Rest Break Class. (Boldface omitted.)

Woodworth characterized this as a derivative class only.

5 California courts and the DLSE use the term “‘flat sum’ bonuses” to distinguish bonuses that are a flat amount from “bonuses ‘based on a percentage of production or some formula other than a flat amount.’” (Marin v. Costco Wholesale Corp. (2008) 169 Cal.App.4th 804, 809; Alvarado v. Dart Container Corp. of California (2018) 4 Cal.5th 542, 561, fn. 6 [distinguishing a flat sum bonus from “a production or piecework bonus or a commission”].)

60 1. AWS Overtime Class

Woodworth contends that the court abused its discretion by denying certification

of the AWS Overtime Class because she presented substantial evidence of common legal

and factual issues. The argument lacks merit.

i. Relevant Background

Woodworth proposed an AWS Overtime Class period starting in June 2010 and

ending on the date of certification. According to her moving papers, this class consisted

of 5,855 employees who worked shifts of eight and one-half, nine, 10, or 12 hours during

which they were paid straight time wages only. The medical center instituted the relevant

AWS’s through elections dating back to 2001.

Woodworth argued that the medical center would have the burden of proving that

it had instituted a valid AWS for the various work units that were subject to an AWS. In

her trial plan, she explained that the medical center would have to prove that (1) it made

the proper written disclosures to the employees before they voted on whether to adopt the

AWS, (2) it duly noticed informational meetings with the employees before the votes,

and (3) each unit of affected employees voted in favor of the AWS by a two-thirds

majority. She further argued that there were “no true ‘individual’ issues” as to this class

because the medical center used the same method and templates for all of the AWS

elections. She asserted that the template disclosures were invalid on their face, so the

question of whether the medical center complied with the applicable legal requirements

for disclosures, which Wage Order 5 sets forth, was common to all class members.

61 Woodworth’s evidence in support of the motion included 12 examples of AWS

agreements with various dates. (See Cal. Code Regs., tit. 8, § 11050, subd. 3(C)(1)

[requiring that the employer propose an AWS to employees “in the form of a written

agreement”].) One agreement had a date of June 2001, and the others had a range of

dates from January 2012 through March 2014. The agreements were substantially similar

but not identical. For example, two agreements stated that “no regularly scheduled shift

shall be for a period of less than four hours.” The other agreements did not contain that

statement.

Woodworth also offered 18 examples of written disclosures that the medical

center had provided to employees for AWS elections in 2013 and 2014. (See Cal. Code

Regs., tit. 8, § 11050, subd. 3(C)(3) [requiring the employer to make “a disclosure in

writing to the affected employees, including the effects of the proposed arrangement on

the employees’ wages, hours, and benefits”].) The disclosures were substantially similar

but included variations for the name of the relevant work unit, the date of the AWS

election, and the schedule proposed (three 12-hour shifts, four 10-hour shifts, or four

nine-hour shifts per week).

Woodworth relied on deposition testimony from several medical center employees

stating that the medical center used templates for the AWS written disclosures. One

employee—Kenya Baker, the manager of compensation in the human resources

department—testified that she had made changes to the templates, but she could not

recall the specific changes.

62 Woodworth contended that all of the AWS disclosures failed to comply with

Wage Order 5, because they did not fully disclose the proposed AWS’s effects on wages,

hours, and benefits. She identified eight claimed omissions in the disclosures.

Woodworth also claimed that the AWS’s were invalid because the AWS disclosures and

agreements granted the medical center the right to terminate the AWS’s. She further

claimed that the medical center had not complied with “additional pre-election

requirements,” but she did not elaborate further. Instead, she cited her brief in opposition

to the medical center’s earlier motion for summary adjudication on the AWS defense.

That brief is not part of the record. 6

In opposition to the class certification motion, the medical center argued that

Woodworth was not an adequate class representative because she had a conflict of

interest with the current medical center employees. The medical center asserted that the

AWS’s were popular, and the employees had voted overwhelmingly to adopt them. If

they were invalidated, the medical center would adopt five eight-hour shifts per week.

According to the medical center, because Woodworth sought to invalidate the AWS’s

and the majority of employees had voted for them, she had a conflict that precluded her

from representing the class.

6 The medical center filed two motions for summary adjudication on the AWS defense. The court denied the first one without prejudice in November 2018, before Woodworth had moved for class certification. The medical center filed its second AWS summary adjudication motion in February 2019, after Woodworth had moved for class certification. We address that second motion in a later part.

63 The medical center also argued that common questions of law or fact did not

predominate because liability would depend on reviewing the election procedures for

hundreds of AWS elections. The medical center offered evidence that it had conducted

more than 390 AWS elections between 2001 and 2013, approximately 150 elections in

2013, and approximately 100 elections since 2013.

The medical center’s opposition relied in large part on the declaration of Baker,

who had been directly involved in conducting AWS elections since 2003. According to

Baker’s declaration, the medical center did not use the same templates for all AWS

elections. Baker had personally revised most of the template agreements on which

Woodworth relied in her moving papers. There were “dozens of other forms” of

agreements that the medical center had used for other elections. The medical center

offered 12 more examples of AWS agreements that were substantially similar but not

identical. Baker asserted that the examples were not an exhaustive set of all templates

used for the AWS elections. The medical center also offered 20 more examples of AWS

disclosure statements that, again, were substantially similar but not identical.

Setting aside the template agreements and disclosures, the medical center also

argued that Woodworth sought to challenge the AWS elections for reasons that did not

apply to all of the hundreds of elections. It noted that in discovery, it had asked her to

state the facts supporting her allegation that the medical center failed to institute a valid

AWS. Woodworth responded with numerous factual theories, including that (1) the

medical center had failed to report the results of many AWS elections to the Division of

Labor Statistics and Research (DLSR); and (2) a change in work hours could not be

64 implemented for at least 30 days after the announcement of the election results, but the

medical center had implemented some AWS’s before the waiting period had expired.

The medical center also noted that Woodworth had pursued another theory when

deposing a medical center employee—that one AWS was invalid because fewer than

two-thirds of the affected employees had approved it. In that deposition, Woodworth

questioned the employee about documentation showing that out of 121 employees, 80 of

them had voted in favor of the particular AWS, which was one vote shy of the required

two-thirds majority.

The medical center argued that the failure to report the results of an AWS election,

the failure to observe the 30-day waiting period, or the failure to obtain the required

two-thirds approval might, if proven, invalidate some elections but not others in which

those failures did not occur. It thus argued that Woodworth’s theories would require

election-specific evidence and would generate different results for the hundreds of

different elections.

In her reply brief, Woodworth continued to argue that whether the AWS

disclosures and agreements complied with Wage Order 5 presented a common question

applicable to all AWS Overtime Class members. She argued that her other theories of

liability—such as the failure to observe the 30-day waiting period or the failure to report

AWS election results to the DLSR—did not preclude certification. She contended that to

the extent those theories applied to some but not all AWS elections, the court could

certify subclasses to address them.

65 The trial court denied certification of the AWS Overtime Class for several reasons.

To start, the court concluded that Woodworth was not an adequate class representative,

because she had a conflict of interest with the AWS Overtime Class.

In addition, the court concluded that common questions of law or fact did not

predominate, so Woodworth failed to show a well-defined community of interest. It

observed that proof of liability would depend on the validity of potentially hundreds of

different AWS elections. The court rejected Woodworth’s argument that the AWS

templates permitted common proof, noting that even if the documents were similar, that

“does not show they [were] the same.” The court also observed that one of Woodworth’s

theories of liability—the failure to gain a two-thirds majority approval—would require

individual proof. And the court rejected Woodworth’s argument that the court could

certify subclasses to deal with the various theories of liability, noting that it was unclear

whether the proposed subclasses would require the parties “to go back to the drawing

board on discovery that should have occurred pre-certification.” Lastly, the court ruled

that Woodworth had not provided a manageable trial plan for dealing with the validity of

hundreds of AWS elections.

ii. Analysis

Section 510 mandates that employees receive one and one-half times their regular

rate of pay for work in excess of eight hours per workday, unless an exception applies.

(§ 510, subd. (a).) A validly adopted AWS is one such exception. (Ibid.) As an

exception to the overtime rules, a properly adopted AWS constitutes an affirmative

defense that the employer bears the burden of proving. (Ramirez v. Yosemite Water Co.

66 (1999) 20 Cal.4th 785, 794-795 (Ramirez); Maldonado, supra, 22 Cal.App.5th at

p. 1327.)

When the Legislature enacted section 510, it also directed the IWC to issue wage

orders regulating AWS’s for the health care industry and other industries. (§ 517, subds.

(a)-(b); Singh, supra, 140 Cal.App.4th at pp. 396-397.) The IWC’s wage orders “are

legislative regulations specifying minimum requirements with respect to wages, hours,

and working conditions.” (Augustus v. ABM Security Services, Inc. (2016) 2 Cal.5th 257,

262, fn. 5 (Augustus).) As already explained, “[t]he IWC’s wage orders are to be

accorded the same dignity as statutes. They are ‘presumptively valid’ . . . .” (Brinker,

supra, 53 Cal.4th at p. 1027.)

Wage Order 5 governs AWS’s in the health care industry. (Cal. Code Regs., tit. 8,

§ 11050, subds. 1, 2(G), (J), (P)(4); Singh, supra, 140 Cal.App.4th at pp. 397-398.)

According to the wage order, the employer must propose the AWS “in the form of a

written agreement.” (Cal. Code Regs., tit. 8, § 11050, subd. 3(C)(1).) For an AWS to be

valid, at least two-thirds of the employees in the affected work unit must vote in favor of

the AWS in a secret-ballot election. (Id., § 11050, subd. 3(C)(2).) Before the election,

the employer must disclose in writing “the effects of the proposed [AWS] on the

employees’ wages, hours, and benefits.” (Id., § 11050, subd. 3(C)(3).) “Such a

disclosure shall include meeting(s), duly noticed, held at least 14 days prior to voting, for

the specific purpose of discussing the effects” of the AWS. (Ibid.) The employer must

report the results of the election to the DLSR within 30 days. (Id., § 11050, subd.

3(C)(6).) The employer may not require the affected employees to work a newly adopted

67 AWS for at least 30 days after the announcement of the elections results. (Id., § 11050,

subd. 3(C)(7).)

Here, the record contains substantial evidence supporting the trial court’s finding

that common questions of law or fact did not predominate. The medical center proffered

evidence that the thousands of employees in the proposed AWS Overtime Class had

worked or were working under AWS’s implemented through hundreds of separate

elections dating back to 2001. In defending against Woodworth’s overtime claim, the

medical center would have the burden of proving the validity of all those AWS’s. That

would require the medical center to prove that it had made the proper written disclosures,

duly noticed pre-election meetings, held the meetings at least 14 days before the

elections, and obtained a two-thirds majority approval for each AWS. In addition,

Woodworth’s theories of liability included other claimed failures to comply with AWS

requirements, such as the failure to report the results of the election to the DLSR and the

failure to observe the 30-day waiting period for implementing a newly approved AWS.

Woodworth argued that the medical center’s AWS templates would permit

common proof of liability because they all contained the same material omissions, but

that was not uniformly true. For instance, any AWS agreement adopted under Wage

Order 5 “shall provide for not less than four (4) hours of work in any shift.” (Cal. Code

Regs., tit. 8, § 11050, subd. 3(B)(1), (B)(8)(c).) Woodworth claimed that the templates

were deficient in part because neither the disclosures nor the agreements informed

employees that they were entitled to at least four hours of work per shift. But two

agreements on which Woodworth relied contained that disclosure. (“[N]o regularly

68 scheduled shift shall be for a period of less than four hours.”) The other agreements on

which she relied did not contain that disclosure. In addition, five of the agreements on

which the medical center relied in its opposition papers contained the same disclosure,

but seven others did not. There was thus some evidence that the templates were

dissimilar in ways relevant to Woodworth’s theories of liability.

In any event, even if the medical center used identical templates for its written

disclosures for the hundreds of AWS elections, the sufficiency of those disclosures

presented only one issue subject to common proof. The medical center would still have

to prove that for each of the hundreds of elections at issue, the other requirements were

met. (Soderstedt v. CBIZ Southern California, LLC (2011) 197 Cal.App.4th 133, 154

[“‘A court may properly deny certification where there are diverse factual issues to be

resolved even though there may also be many common questions of law’”].) Each

election would present an individualized factual determination regarding whether the

medical center duly noticed pre-election meetings and whether each voting unit approved

the AWS by a two-thirds vote. And Woodworth had other theories of liability that

required an individualized look at the elections—the failure to report election results to

the DLSR and the failure to wait 30 days before implementing a new AWS. She did not

demonstrate how compliance with those other requirements was subject to common

proof. (Brinker, supra, 53 Cal.4th at p. 1052 [certification not proper when no evidence

of uniform practice showing employer knew employees performed off-the-clock work,

and nothing before the court demonstrated how that could be shown through common

proof].) Substantial evidence thus supports the trial court’s finding that common

69 questions did not predominate, and the court did not abuse its discretion by denying class

certification on that ground.

Moreover, the court did not abuse its discretion by concluding that Woodworth

failed to present a manageable trial plan for determining the validity of hundreds of AWS

elections. While she proposed subclasses in her reply brief to deal with her various

theories of noncompliance, she did not explain at all how the subclasses would manage

the individualized issues arising from the existence of hundreds of elections. (Evans v.

Lasco Bathware, Inc. (2009) 178 Cal.App.4th 1417, 1434 (Evans) [“creating subclasses

here would merely resurrect all of the individualized issues . . . as well as individualized

showing[s] of damages, which would splinter the class into thousands of minitrials and

largely defeat the benefits of proceeding as a class action”]; Payton v. CSI Electrical

Contractors, Inc. (2018) 27 Cal.App.5th 832, 844 [general outline of a two-phase trial

‘“fail[ed] to show how the individualized issues arising from Defendants’ defenses can be

managed”’].) She therefore failed to carry her burden of showing that class treatment

was appropriate.

Woodworth argues that the court abused its discretion because she presented

substantial evidence of common questions with respect to the templates. But on appeal,

we do not ask whether her evidence may have been sufficient to support class

certification. (Dailey, supra, 214 Cal.App.4th at p. 992.) We ask only whether the

record contains substantial evidence supporting the trial court’s predominance finding.

(Ibid.) It does.

70 For all of these reasons, the court did not abuse its discretion by denying

certification of the AWS Overtime Class on the basis of the predominance element or the

manageability requirement. In light of that conclusion, we need not reach Woodworth’s

independent argument that the court erred because she did not have a conflict of interest

with the class members. (Cruz v. Sun World Internat., LLC (2015) 243 Cal.App.4th 367,

394 (Cruz) [because substantial evidence supported trial court’s predominance finding,

appellate court did not need to address trial court’s rulings on other elements of class

certification], disapproved on another ground by Noel v. Thrifty Payless, Inc. (2019) 7

Cal.5th 955, 986, fn. 15.)

2. Regular Rate Class

Woodworth argues that the court abused its discretion by denying certification of

the Regular Rate Class because common questions predominated. The argument again

lacks merit.

According to Woodworth’s moving papers, the Regular Rate Class consisted of

1,435 employees who received flat sum bonuses and an unspecified number of

employees who received Christmas bonuses. She argued that the medical center had a

uniform practice of excluding Christmas bonuses and other flat sum bonuses from the

calculation of an employee’s regular rate of pay. She contended that Christmas bonuses

and flat sum bonuses were nondiscretionary and that the law therefore required them to

be included when calculating the regular rate of pay. Moreover, she argued that whether

71 the medical center properly excluded those bonuses from the regular rate of pay

presented a common legal question, rendering class treatment appropriate.

Woodworth offered deposition testimony from the medical center’s payroll

manager, Crystal Bowell, who testified that the medical center uniformly excluded

Christmas bonuses from the regular rate calculation. She also offered the medical

center’s written policy on Christmas bonuses, which described the Christmas bonus as

“[a] discretionary bonus provided to eligible employees as a gift for their service.”

In its opposition papers, the medical center argued that common questions of fact

or law did not predominate, because liability would depend on “employee-specific” and

“bonus-specific” evidence. As to the Christmas bonus, the medical center contended that

employers were permitted to exclude “‘gifts on special occasions’” from the calculation

of an employee’s regular rate. So long as the Christmas bonus was actually a gift and not

paid pursuant to a contract, the bonus thus was excludable. But according to the medical

center, Woodworth intended to claim that the medical center had promised the Christmas

bonus to employees, rendering it a contractual obligation. The medical center relied on

Woodworth’s discovery responses. It asked her to state the facts supporting her

allegation that it had improperly calculated the regular rate of pay. She responded in part

that the medical center had published an “Outline of Benefits,” which stated: “‘A

Christmas bonus is available for full-time regular employees and part-time regular benefit

eligible employees.’” (Boldface omitted.) She further responded that the medical center

“clearly intended” employees to rely on this summary of benefits without delving into

detailed policies or handbooks. The medical center argued that employee-specific

72 evidence would be required to determine whether any particular employee saw and relied

on the Outline of Benefits or some other statement that might be construed as a

contractual promise to pay the Christmas bonus.

As to the flat sum bonus, the medical center argued that it did not use that term in

the ordinary course of business, although it did pay multiple different types of bonuses

using different criteria. According to Bowell’s declaration, the medical center’s payroll

system used the code “BON” to refer to many bonuses that it had paid since the

beginning of the class period (June 2010), but the medical center did not treat all BON

code bonuses in the same manner. Whether the medical center excluded a particular

bonus from the regular rate calculation depended on the reason for the bonus and how the

medical center determined the amount of the bonus. Bowell elaborated on six

nonexhaustive examples in her declaration: (1) an August 2016 bonus to thank certain

employees “for a job well done”; (2) a bonus for employees who supported another

hospital when that hospital implemented a new electronic medical records system; (3) a

bonus for employees in a particular unit who agreed to perform extra job duties when a

coworker was on leave; (4) a “one-time performance bonus” when a particular

department wanted to increase the regular pay raise that employees were receiving in the

ordinary course of business; (5) a new hire bonus that at least one department sometimes

gave new employees; and (6) a bonus for a case manager who worked some hours as a

mobile intensive care nurse. Of those six examples, the medical center excluded only the

first type of bonus from the employees’ regular rate calculation. On the basis of Bowell’s

declaration, the medical center argued that bonus-specific evidence would be required to

73 determine whether the medical center properly excluded a bonus from the regular rate

calculation.

Apart from the predominance element, the medical center also argued that

Woodworth was not an adequate representative of the Regular Rate Class, because there

was no evidence that she had been promised a Christmas bonus, and she never received

another type of bonus. She testified at her deposition that she did not expect to receive a

Christmas bonus until a coworker told her that the medical center would be paying one.

Also, she had never seen the Outline of Benefits, which the medical center published in

January 2015, months after Woodworth had left the medical center.

In her reply brief, Woodworth argued that the Christmas bonus issue “turn[ed] on

whether the bonus was discretionary” (and thus properly excluded from the regular rate)

“or promised (and thus improperly excluded).” She asserted that this common legal

question predominated. Similarly, she continued to argue that the exclusion of the flat

sum bonus from the regular rate was a predominant common legal question.

The trial court denied certification of the Regular Rate Class. It concluded that

Woodworth was not an adequate representative of the class. In addition, it found that

common questions of law or fact did not predominate, because the trier of fact would

have to make individualized determinations about (1) which BON code bonuses were

discretionary and (2) whether the medical center promised employees bonuses. In

addition, the court ruled that Woodworth failed to offer a manageable trial plan for

determining which bonuses were discretionary (and thus excludable from the regular rate

calculation).

74 ii. Analysis

“Under California law, employers must provide employees with overtime pay

when employees work more than a certain amount of time.” (Ferra v. Loews Hollywood

Hotel, LLC (2021) 11 Cal.5th 858, 863 (Ferra).) Section 510, subdivision (a), requires

employers to compensate employees for overtime at one and one-half or twice their

“regular rate of pay,” depending on the number of overtime hours. “California law also

provides for meal, rest, and recovery periods. If an employer does not provide an

employee with a compliant meal, rest, or recovery period, section 226.7, subdivision (c)

. . . requires the employer to ‘pay the employee one additional hour of pay at the

employee’s regular rate of compensation.’” (Ferra, supra, at p. 863.) For purposes of

calculating an employee’s overtime rate and missed break premium, the terms ‘“regular

rate of pay”’ and ‘“regular rate of compensation”’ are synonymous. (Ibid.)

California courts construe “‘regular rate of pay’ . . . to have the same meaning as

‘regular rate’” in the Fair Labor Standards Act of 1938 (FLSA) (29 U.S.C. § 201 et seq.).

(Ferra, supra, 11 Cal.5th at p. 868; Prachasaisoradej v. Ralphs Grocery Co., Inc. (2007)

42 Cal.4th 217, 242, fn. 14.) FLSA defines the regular rate as including “all

remuneration for employment,” subject to numerous exclusions. (29 U.S.C. § 207(e);

Huntington Memorial Hospital v. Superior Court (2005) 131 Cal.App.4th 893, 903

(Huntington Memorial).) Bonuses that do not fall within one of the exclusions “must be

added into the total compensation received by the employee before his [or her] regular

hourly rate of pay is determined.” (29 C.F.R. § 778.200(c) (2022); id., § 778.208;

Huntington Memorial, supra, at p. 904.) Thus, the employee’s regular rate of pay “can

75 change from pay period to pay period,” depending on whether the employee received a

qualifying bonus during the period. (Ferra, at p. 869.)

Two of the regular rate exclusions are relevant here. First, the regular rate

calculation need not include “payments in the nature of gifts made at Christmas time or

on other special occasions, as a reward for service.” (29 U.S.C. § 207(e)(1); 29 C.F.R.

§ 778.200(a)(1) (2022).) To qualify for this special occasion gift exclusion, the amount

of a Christmas bonus must not be “measured by or dependent on hours worked,

production, or efficiency.” (29 U.S.C. § 207(e)(1).) In addition, a Christmas bonus does

not qualify for the exclusion if it “is paid pursuant to contract (so that the employee has a

legal right to the payment and could bring suit to enforce it).” (29 C.F.R. § 778.212(b)

(2022).) But a Christmas bonus qualifies for the exclusion even if it is paid “to all

employees” and “with regularity so that the employees are led to expect it.” (Id.,

§ 778.212(c).)

Second, the regular rate calculation need not include discretionary bonuses. (29

C.F.R. §§ 778.208, 778.211 (2022).) Discretionary bonuses are “[s]ums paid in

recognition of services performed during a given period,” so long as both the fact of

payment and “the amount of the payment are determined at the sole discretion of the

employer at or near the end of the period and not pursuant to any prior contract,

agreement, or promise causing the employee to expect such payments regularly.” (29

U.S.C. § 207(e)(3); 29 C.F.R. § 778.200(a)(3) (2022).) “The label assigned to a bonus

does not conclusively determine whether a bonus is discretionary . . . .” (29 C.F.R.

76 § 778.211(d) (2022).) Instead, FLSA’s terms “and the facts specific to the bonus at issue

determine whether bonuses are excludable discretionary bonuses.” (Ibid.)

In this case, substantial evidence supports the trial court’s finding that common

questions did not predominate for the Regular Rate Class. Woodworth asserted that a

common legal question predominated: Did the medical center properly exclude the

Christmas bonus and the flat sum bonus from the regular rate calculation? But as to the

Christmas bonus, the precise factual and legal dispute likely to be presented was whether

it qualified for the special occasion gift exclusion. (See Brinker, supra, 53 Cal.4th at

p. 1025 [court must “assess the nature of the legal and factual disputes likely to be

presented” when evaluating predominance element].) Woodworth acknowledged that

whether the Christmas bonus was excludable turned on whether the employees had been

promised the bonus. That might show that the bonus was “paid pursuant to contract.”

(29 C.F.R. § 778.212(b) (2022).) However, Woodworth did not explain how the

existence of that promise would be subject to common proof. On appeal, she argues that

the Outline of Benefits gave rise to an implied promise that the medical center would pay

the Christmas bonus, at least as “to those employees who actually saw the Outline of

Benefits.” That would require individualized evidence regarding which employees saw

the document and understood it as a promise to pay the Christmas bonus. Moreover,

Woodworth proposed a class period starting in June 2010, nearly five years before the

medical center published the Outline of Benefits. She does not explain what method of

common proof would show promises dating back to 2010. And the fact that the medical

center might have paid the Christmas bonus regularly or to all employees who were

77 eligible did not give rise to a promise disqualifying it from the gift exclusion. The

regulations implementing the gift exclusion expressly permit employers to exclude such a

bonus. (29 C.F.R. § 778.212(c) (2022).)

With respect to the flat sum bonus, the medical center offered evidence that there

was no single type of flat sum bonus. Rather, it paid many types of bonuses during the

proposed class period, and the medical center included some of those in the regular rate

calculation. Bonus-specific evidence would be required to determine whether the

medical center had properly excluded a particular bonus as discretionary. That is, “facts

specific to the bonus at issue” (29 C.F.R. § 778.211(d) (2022)) would be necessary to

determine (1) whether the bonus was “paid in recognition of services performed during a

given period,” (2) whether the medical center determined the fact and amount of the

bonus in its sole discretion, (3) whether the medical center made those determinations “at

or near the end” of the relevant period, and (4) whether there was a “prior contract,

agreement, or promise causing the employee” to expect the bonus regularly. (29 U.S.C.

§ 207(e)(3).) Again, Woodworth did not explain how any of those elements would be

subject to common proof as to any one bonus, much less as to the potentially numerous

bonuses at issue for 1,435 class members. (See Lampe v. Queen of the Valley Medical

Center (2018) 19 Cal.App.5th 832, 843-844 (Lampe) [“‘vague assertion’” that the

employer miscalculated the regular rate without any specific detail as to what bonus

categories were or were not excluded was insufficient to show common issues

predominated].)

78 For all of these reasons, substantial evidence supports the trial court’s finding that

common questions of fact or law did not predominate with respect to the Regular Rate

Class. The court therefore did not abuse its discretion by denying certification of the

class. Given that conclusion, we need not reach Woodworth’s additional argument that

the court erred by concluding that she was an inadequate class representative. (Cruz,

supra, 243 Cal.App.4th at p. 394.)

3. Rest Break Class

Woodworth argues that the court’s reasons for denying certification of the Rest

Break Class were “unsound,” so it abused its discretion. We conclude that Woodworth

has not shown an abuse of discretion.

According to Woodworth’s moving papers, the Rest Break Class consisted of

7,083 patient care employees. In support of the class certification motion, Woodworth

offered the declaration of Elsie Crowninshield, a doctor of nursing practice.

Crowninshield determined which employees were patient care employees by reviewing

the medical center’s “department descriptions and job titles.” The list of job titles

representing those 7,083 patient care employees was 73 pages long.

As discussed, Woodworth proposed two options for the Rest Break Class—the

on-premises Rest Break Class and the no-relief Rest Break Class. Regarding the

on-premises Rest Break Class, she argued that the medical center had a facially invalid

rest period policy, presenting a predominant common legal question for the class. In

relevant part, the rest period policy applied to all nonexempt employees and provided for

79 one 10-minute rest period for each four hours worked. It specified that employees

working between 10 and 14 hours were entitled to three rest periods. The policy also

stated: “It is expected that ten minute rest periods will be taken on the premises.”

Woodworth contended that requiring employees to remain on premises was unlawful per

se, because the law required employers to relinquish control over employees during rest

periods.

As for the no-relief Rest Break Class, Woodworth argued that the medical center

failed to provide dedicated relief personnel for patient care employees who worked

10- and 12-hour shifts. Crowninshield explained in her declaration that the medical

center had “staff-to-patient ratio obligations” and that certain licensed patient care

employees (like nurses) had similar ethical obligations. She opined that without adequate

relief personnel, patient care employees were prone to missing breaks to ensure that they

were providing appropriate care. After reviewing certain of the medical center’s written

policies and deposition testimony, Crowninshield opined that the medical center had no

system for providing dedicated rest period relief. She asserted that the medical center

planned rest periods on an informal basis, did not provide formal training on rest period

coverage, had no daily log or journal showing when rest periods were scheduled or taken,

had no operational plan to ensure adequate staffing for rest periods, and had an onerous

and intimidating process for claiming the missed break premium. (While an exhibit to

Crowninshield’s declaration listed the documents and deposition testimony that she had

reviewed in forming her opinions, Woodworth did not provide the majority of those

documents with her moving papers.)

80 According to Woodworth’s declaration in support of her motion, she rarely took

any of her rest periods on her 12-hour shifts. She attributed that to the medical center’s

failure to provide relief personnel and stated that the medical center rarely provided a

dedicated relief nurse.

In her trial plan, Woodworth asserted that she would prove the failure to provide

rest periods by deposing a random sample of Rest Break Class members. She would ask

them whether they were restricted to the medical center’s premises for rest periods and

how often, on average, they took rest periods in which they were permitted to leave the

premises. In addition, she would ask them how often relief personnel was available. She

would also rely on Crowninshield’s testimony, scheduling documents, and “daily

assignment sheets.”

Regarding sampling, Woodworth offered a declaration from Kriegler, the same

statistician on whom she relied in connection with the motion for summary adjudication

on the rounding claim. Kriegler opined that the parties could randomly select class

members to depose in increments of 25. The parties would analyze the testimony from

the first 25 Rest Break Class members to gauge whether the margins of error were

sufficiently small. If the margins were small enough, there would be no need for further

depositions. If they were not sufficiently small, the parties would proceed with the next

batch of 25 depositions. Kriegler provided calculations for the margin of error under

various hypothetical circumstances, using sample sizes ranging from 20 to 200 class

members.

81 In opposition, the medical center argued that common questions of law or fact did

not predominate with respect to the Rest Break Class. As to the on-premises class, the

medical center argued that the “expect[ation]” stated in the rest period policy was not a

requirement, and the vast majority of supervisors and employees did not interpret the

policy as requiring them to stay on premises. It contended that proof of liability would

require individualized evidence as to what supervisors communicated to employees and

whether employees were actually prevented from leaving the premises when they wanted.

The medical center offered a declaration from the executive director of benefits and

compensation, who stated that the medical center does not track whether employees

remain on premises during rest periods. In addition, most of the putative class member

declarants stated that no one told them about an on-premises requirement. A number of

them also said that they were free to leave or were not, in fact, required to stay on

premises. And a number of them stated that they did not leave the medical center

because they had only 10 minutes for rest periods or they did not want to leave. At least

one supervisor explained that he never told employees that they could not leave the

premises during rest periods; they were free to do whatever they pleased, so long as they

returned to work by the end of the 10-minute rest period.

Regarding the no-relief class, the medical center likewise argued that the theory

would require an individualized inquiry, because there was no uniform policy or practice

of failing to provide relief or rest periods. It again relied on the putative class members’

declarations. Many of the 12-hour employees said that they could take three rest periods

if they wanted to do so, they had someone to relieve them while they took their breaks, or

82 they had never been denied a rest period. Some of them said that they actually did take

three rest periods some or all of the time. Many of them said that they often chose to skip

one or more rest periods voluntarily. Some putative class members described how certain

employees were assigned to provide relief during rest periods. Some described how their

unit used a sign-up sheet to schedule rest periods or how a supervisor created a schedule

for rest periods. Others described a more informal process in which employees took their

rest breaks whenever they wanted, so long as they had coverage at the time or notified

their supervisors.

The medical center also argued that Woodworth had not shown that the Rest

Break Class was ascertainable. She defined it as all patient care employees, but

according to the executive director of benefits and compensation, Woodworth’s 73-page

list of patient care job titles did not accurately identify patient care employees. The list

included whole departments that had nothing to do with patient care, employees who did

not provide patient care, or employees who might provide patient care on some days but

not others. Overall, there were hundreds of job titles on the list that did not involve

patient care at all or most of the time. There was no accurate, existing list that identified

patient care positions by job title and department. The medical center argued that to

develop an accurate list, the court would need to hear evidence on what hundreds of

employees do.

The medical center further argued that Woodworth had no manageable trial plan

for dealing with the individual issues raised by both the on-premises and the no-relief

classes. It asserted that her plan to randomly sample class members for deposition was

83 not statistically valid. The medical center offered the declaration of the applied

economist, Buchanan, on whom it had relied in connection with the motion for summary

adjudication on the rounding claim. Applying a mathematical formula, Buchanan

calculated that the parties would have to depose at least 365 randomly selected class

members to get a correct sample size for a homogenous population of 7,083 people,

assuming a confidence level of 95 percent and an error tolerance of 5 percent. The

medical center argued that Kriegler provided no statistical basis for his claim that, at

most, 200 depositions would be required, nor had he provided a basis for starting with an

initial sample size of 25. Moreover, it argued, Woodworth had offered no evidence that

the Rest Break Class members were a homogenous population, whereas the putative class

members’ declarations suggested that the hundreds of different types of employees in the

class would have different rest period experiences.

In her reply brief, Woodworth narrowed the definition of the Rest Break Class,

proposing two alternatives. The first option was all patient care employees who worked

only 12-hour shifts. Using her 73-page list of patient care positions, she narrowed the

class down to 4,584 members fitting that description. The second option was patient care

employees who were registered nurses and worked only 12-hour shifts. She did not

specify how many people would be in that second alternative class.

Woodworth continued to argue that the legality of the on-premises rest break

policy presented a predominant common question warranting certification. She further

argued that the medical center had a systematic practice of failing to provide 12-hour

patient care employees with relief personnel and that damages could be resolved through

84 Kriegler’s random sampling method. She submitted a reply declaration from Kriegler

stating that he had reviewed the putative class members’ declarations and the testimony

of the 10 deponents from that group. On the basis of that information, he estimated that

the class members missed their third rest period at a rate of between 60 and 80 percent.

The court denied certification of the Rest Break Class. As to the proposed on-

premises class, the court’s order was somewhat unclear on the predominance element. In

the section of the order addressing that element, the court noted that Woodworth based

her theory of liability on the on-premises policy. But it did not expressly decide whether

common questions predominated for the on-premises class. However, in the section of

the order addressing manageability, the court concluded that Woodworth had “failed to

demonstrate manageability in her trial plan,” given that it would have to determine which

patient care employees “missed breaks because they were required to remain on

premises.”

As to the proposed no-relief class, the court ruled that common questions did not

predominate. It observed that Woodworth had not produced evidence of a common

policy or practice of denying 12-hour employees rest periods and that individualized

inquiries would predominate as to the reasons that employees did not take rest periods.

The court additionally observed that the “‘patient care’ label” was “problematic,” because

the medical center had shown that Woodworth’s list of patient care job titles included

employees who did not provide patient care. The court ruled that Woodworth had not

provided a manageable trial plan for determining which employees were patient care

employees.

85 ii. Analysis

“California law requires employers to relieve their employees of all work-related

duties and employer control during 10-minute rest periods.” (Augustus, supra, 2 Cal.5th

at p. 272.) As relevant here, employees are entitled to 10 minutes of rest for every four

hours worked “or major fraction thereof.” (Cal. Code Regs., tit. 8, § 11050, subd. 12(A).)

Accordingly, employees who work 12-hour shifts are entitled to three 10-minute rest

periods during which they are relieved of all duties and free from employer control.

In this case, Woodworth fails to show that the court erred by denying certification

of the on-premises Rest Break Class. Her theory of liability asserts that the medical

center’s written policy violated the law requiring rest periods free from duties and

employer control. 7 The medical center would defend itself by showing that regardless of

its written policy, it did not actually require employees to remain on premises. In other

words, even if the policy were unlawful on its face, the medical center did not enforce the

7 In Augustus, our Supreme Court reasoned that “[b]ecause rest periods are 10 minutes in length [citation], they impose practical limitations on an employee’s movement. That is, during a rest period an employee generally can travel at most five minutes from a work post before returning to make it back on time. Thus, one would expect that employees will ordinarily have to remain on site or nearby. This constraint, which is of course common to all rest periods, is not sufficient to establish employer control.” (Augustus, supra, 2 Cal.5th at p. 270.)

The medical center argues that the trial court properly denied certification because the on-premises rest period policy was facially valid under Augustus. It does not explain why the facial validity of the policy means that class treatment is inappropriate. In any event, the medical center did not make this argument in the trial court, and the court did not base its decision on any determination about the merits of Woodworth’s on-premises theory. Given that we must review the court’s actual reasons for granting or denying certification, we decline to affirm the order on grounds not relied on by the court. (Ayala, supra, 59 Cal.4th at p. 530.)

86 policy. The court’s stated reason for denying certification was that Woodworth lacked a

manageable trial plan for dealing with that defense and determining which employees

were required to remain on premises. (See Duran, supra, 59 Cal.4th at p. 29 [when the

plaintiff seeks class certification on the basis that the employer imposed a uniform policy,

the plaintiff “must still demonstrate that the illegal effects of this conduct can be proven

efficiently and manageably within a class setting”].) Woodworth does not carry her

burden of demonstrating that the manageability ruling constituted an abuse of discretion.

(Cristler v. Express Messenger Systems, Inc. (2009) 171 Cal.App.4th 72, 80 [appellant

bears the burden of showing an abuse of discretion].) In a conclusory fashion, she asserts

that she will depose a randomly selected group of class members and that random

sampling can be used to determine the number of class members to testify at trial. But

she does not attempt to describe Kriegler’s method in any detail, Buchanan’s criticisms of

it, or why the court erred by implicitly crediting Buchanan over Kriegler. She does not

even mention Buchanan’s declaration. Nor does she apply the controlling case law on

manageability and sampling, Duran, to any of the experts’ disputes. (Duran, at p. 31

[holding that while “it may be possible to manage individual issues through the use of

surveys and statistical sampling,” any “statistical plan for managing individual issues

must be conducted with sufficient rigor”].) And the record is clear that the court

considered both declarations—the court’s order contains a section discussing the

declarations and overruling the medical center’s objections to Kriegler’s declaration. We

decline to reverse the court’s order, in the absence of any reasoned discussion of the

87 evidence about manageability or the relevant legal authority. (Cahill, supra, 194

Cal.App.4th at p. 956.)

With respect to the no-relief Rest Break Class, substantial evidence supports the

court’s finding that common questions did not predominate. The evidence showed that

the formal rest period policy complied with the law by providing for three rest periods

when an employee worked a 12-hour shift. Crowninshield opined that the medical center

had no system for providing dedicated relief personnel, but beyond Woodworth’s own

declaration, Woodworth did not proffer any evidence that the medical center denied rest

periods because relief personnel were lacking. Woodworth’s individual experience did

not constitute evidence of a “uniform, companywide policy.” (Brinker, supra, 53 Cal.4th

at p. 1052.)

The medical center, on the other hand, proffered evidence that there was no

uniform practice of denying rest periods for lack of relief personnel, and Woodworth

does not persuasively explain how liability could be shown through common proof. (See,

e.g., Arenas v. El Torito Restaurants, Inc. (2010) 183 Cal.App.4th 723, 734 [“having

credited defendants’ evidence over plaintiffs’, the trial court could reasonably conclude

there was insufficient evidence of widespread misclassification, hence plaintiffs’ theory

of recovery was not susceptible to common proof”].) Many of the putative class member

declarants took three rest periods on their 12-hour shifts. Even if the declarants did not

take all of their rest periods, some said that they voluntarily chose to skip rest periods and

that relief was available if they wanted to take the rest periods. And the declarations

showed that the process for taking rest periods varied. Some supervisors scheduled rest

88 periods for the employees. Some units had employees sign up for rest periods during a

shift. And other declarants described a more informal process in which employees

notified supervisors when they wanted to take a rest period. On this record, the court

could reasonably conclude that there was no uniform policy of denying rest periods for

lack of relief, and proof of liability “would have had to continue in an employee-by-

employee fashion,” demonstrating who did not take all of their rest periods and the

reasons for any failure to take them. (Brinker, supra, 53 Cal.4th at p. 1052; Lampe,

supra, 19 Cal.App.5th at p. 848 [question of whether a missed meal period “was due to

the employer’s failure to allow it or from the employee’s voluntary choice” required an

individualized inquiry, precluding class certification].)

In sum, substantial evidence supports the trial court’s predominance finding on the

no-relief Rest Break Class, so the court did not abuse its discretion by denying

certification of the class. Moreover, Woodworth has not shown that the court abused its

discretion by denying certification of the on-premises Rest Break Class on manageability

grounds. Given those conclusions, we need not reach Woodworth’s additional argument

that the court erred by rejecting her definition of patient care employees for the Rest

Break Class. (Cruz, supra, 243 Cal.App.4th at p. 394.)

4. Wage Statement Class

Woodworth argues that the court abused its discretion when it determined that

common questions did not predominate as to the Wage Statement Class and that she was

an inadequate representative. We conclude that the court abused its discretion by

89 denying certification of the stand-alone Wage Statement Class but not the derivative

Wage Statement Class.

Under section 226, employers must provide employees with “an accurate itemized

statement in writing showing” nine categories of information. (§ 226, subd (a).) For a

nonexempt employee, the wage statement must show “total hours worked by the

employee,” gross wages earned, and net wages earned, among other things. (§ 226, subd.

(a); § 226, subd. (j).)

Woodworth sought to certify the Wage Statement Class on stand-alone and

derivative theories. As to the stand-alone class, Woodworth presented evidence that

before June 2018, the medical center issued wage statements that did not include a line

item showing the total hours worked by an employee. Beginning in June 2018, the

medical center added a line item setting forth “Total Worked Hours” (capitalization and

boldface omitted), as the following example illustrates:

90 Woodworth therefore argued that the wage statements issued before June 2018 did not

comply with section 226 because they failed to show total hours worked. She asserted

that whether the wage statements complied with section 226 presented a predominant

legal question common to the class. The class consisted of over 10,000 members who

received wage statements.

As to the derivative Wage Statement Class, Woodworth argued that liability would

depend on the class members’ overtime and regular rate claim. That is, to the extent that

the medical center owed class members overtime pay or missed break premiums, the

wage statements did not accurately reflect all of their overtime pay or premium pay.

The medical center argued in opposition that common questions did not

predominate for this class. It contended that under Morgan v. United Retail Inc. (2010)

186 Cal.App.4th 1136 (Morgan), section 226 did not require a separate line item showing

total hours worked. According to the medical center, so long as the employee could use

simple arithmetic to “determine the sum of all hours worked without referring to time

records or other documents,” the wage statement complied with section 226. (Morgan,

supra, at p. 1147.)

The medical center contended that common proof of liability was lacking because

the employees’ wage statements differed greatly. Even before June 2018, some

employees received simple wage statements that did not require arithmetic at all to

91 determine the total hours worked, such as this one:

This employee worked 80 regular hours during the pay period, and the line item for the

total accurately reported 80 total hours worked. Other employees received wage

statements that included regular hours and overtime hours, like this one:

This employee worked 79.8 regular hours and 0.8 overtime hours, and the line item for

the total accurately reported 80.6 total hours worked.

Other employees received more complex wage statements, like this one that

Woodworth received in April 2012:

92 During this two-week pay period, Woodworth worked 73 regular hours, 0.8 double time

hours one week, and 0.3 double time hours the second week, for a total of 74.1 hours.

The wage statement also reported that she worked 70.4 hours for which the medical

center paid her a night differential. Those night differential hours were part of the 74.1

hours that she had worked. But the line item reporting the total hours added the night

differential hours to the 74.1 hours she had worked, so the wage statement reported

144.50 total hours. Woodworth testified at her deposition, however, that she could

determine her total hours worked by adding the regular hours and the double time hours,

and she could determine from this wage statement that she had worked 74.1 hours during

the pay period.

The medical center argued that Woodworth’s theory of liability turned on the

complexity of the wage statement and whether the employee could use simple arithmetic

to determine total hours worked, which would require individual inquiries for each

employee and each wage statement. The medical center would seek to introduce the

wage statements of hundreds of employees and would call those employees to testify that

they had no difficulty determining the total hours worked from their wage statements.

Thus, individual questions predominated, and Woodworth had no manageable trial plan

for that. In addition, the medical center argued that Woodworth could not represent the

class because she had admitted that she could determine her total hours worked by adding

her regular hours and double time hours.

As to the derivative Wage Statement Class, the medical center argued that

California law did not permit derivative wage statement liability for an underlying wage

93 and hour violation. Even if a derivative claim were permitted, the medical center argued,

certification of a derivate Wage Statement Class was not appropriate because certification

of the underlying classes was not appropriate.

In Woodworth’s reply brief, she argued that Morgan did not apply because it was

factually distinguishable, and in any event, whether it applied was a legal question

common to the entire class. She further argued that even if the medical center were not

required to include a single line item accurately reporting total hours worked, there was a

common predominant question as to whether employees could determine their total hours

worked from the more complex wage statements. She used another of her wage

statements as an example, this one from October 2013:

The line item reporting total hours did not accurately reflect her total hours worked for

the period, because the figure included night differential hours, weekend differential

hours, and paid leave hours. The line item for night differential and weekend differential

hours merely reported extra pay that she received for working night and weekend shifts,

and she did not work during the paid sick leave hours. Thus, the total reported on more

94 complex wage statements like this one double-counted some work hours and included

some nonwork hours.

Woodworth relied again on Kriegler’s declaration in support of her reply brief. He

had examined the payroll data for all current and former employees from June 2013 to

August 2015. According to him, 90.4 percent of the pay periods included hours for shift

differentials, paid time off, and/or holiday bonuses in the total reported hours. Thus, the

total did not accurately reflect hours actually worked on 90.4 percent of the wage

statements for that period. He identified 13 earnings codes that he characterized as shift

differentials or paid time off resulting in the discrepancy. Woodworth contended that

whether those 90.4 percent of wage statements violated section 226 presented a

predominant legal question common to the class. The question did not require

individualized inquiries because all wage statements in the group inaccurately reported

total hours worked by including shift differentials and paid time off. Moreover,

Woodworth argued, she was an adequate representative of the class. It did not matter that

she could determine her total hours worked after the medical center’s counsel

“‘coached’” her through the process at her deposition.

The court denied certification of the stand-alone Wage Statement Class. Citing

Morgan, the court observed that section 226 did not require a separate line item for total

hours worked. It further observed that some employees received more complex wage

statements than others. It concluded that determining liability would require an

individualized review of the allegedly noncompliant wage statements, which ‘“would

generate different results for different employees (and different results for different wage

95 statements issued to the same employee).”’ The court thus ruled that common questions

did not predominate.

In addition, because Woodworth had testified that she could add the hours on her

wage statement and determine her total hours worked, the court ruled that she was not an

adequate representative for the class. As to the derivative Wage Statement Class, the

court denied certification because it was denying certification on the underlying AWS

Overtime and Regular Rate Classes.

As discussed, section 226, subdivision (a), requires employers to furnish accurate

itemized wage statements showing “total hours worked by the employee.” Subdivision

(e) of the statute describes an employer’s liability for failing to furnish compliant wage

statements. (Morgan, supra, 186 Cal.App.4th at p. 1143.) It provides that “[a]n

employee suffering injury as a result of a knowing and intentional failure by an employer

to comply with subdivision (a) is entitled to recover the greater of all actual damages” or

statutory penalties. (§ 226, subd. (e)(1).) An employee suffers injury for this purpose if

(1) the employer fails to provide the required “accurate and complete information” and

(2) “the employee cannot promptly and easily determine” their total hours worked “from

the wage statement alone.” (§ 226, subd. (e)(2)(B), (e)(2)(B)(i).) “‘[P]romptly and easily

determine’ means a reasonable person would be able to readily ascertain the information

without reference to other documents or information.” (§ 226, subd. (e)(2)(C).)

Here, the record does not contain substantial evidence to support the court’s

predominance finding on the stand-alone Wage Statement Class. The evidence showed

96 that the simpler wage statements reported only regular hours or regular and overtime

hours, and the more complex ones like Woodworth’s reported hours for differential pay

and paid time off. But that did not mean that proof of liability would require an

individualized inquiry for each employee or wage statement. The wage statements could

be grouped into two categories—those reporting regular and overtime hours only, and

those reporting hours under one or more of the earning codes that Kriegler had identified

as shift differentials or paid time off. Common questions apply to each of the two

categories: Did the wage statement provide accurate and complete information about

total hours worked? (§ 226, subd. (e)(2)(B).) And could a reasonable person readily

ascertain total hours worked from the statement alone, without reference to other

documents or information? (Id., subd. (e)(2)(C).) As Woodworth argues, her theory of

liability would require review of samples from each category but not review of each wage

statement. Moreover, it would not require each and every employee to testify about

whether they could determine their total hours worked from any one wage statement.

The statute establishes an objective “reasonable person” standard for that determination.

Some employees’ testimony might be probative to establish whether a reasonable person

could ascertain the information, but it is not a subjective, individualized inquiry.

Woodworth thus showed that common proof was possible and common questions

predominated, and there is not substantial evidence to support a contrary conclusion.

Moreover, the court abused its discretion by concluding that Woodworth was an

inadequate representative of the stand-alone Wage Statement Class. The trial court may

conclude that the class representative does not satisfy the adequacy requirement if the

97 representative ‘“fail[s] to raise claims reasonably expected to be raised by the members

of the class.”’ (Evans, supra, 178 Cal.App.4th at p. 1432.) The rule applies, for instance,

when the class representative seeks only one form of available damages and would be

waiving other forms of available damages on behalf of all other putative class members.

(Id. at pp. 1432-1433.) But nothing like that was at issue here. Woodworth asserted a

wage statement claim on behalf of class members whose statements closely resembled

hers, in that the statements included hours for shift differentials and paid time off. The

court prejudged the merits of her claim on the basis of her deposition testimony, but she

was not required to show that her claim has merit to demonstrate that she was an

adequate representative. (See Linder, supra, 23 Cal.4th at pp. 439-440 [“the question of

certification [is] essentially a procedural one that does not ask whether an action is legally

or factually meritorious”].) The court therefore applied improper criteria and abused its

discretion when it determined that Woodworth was an inadequate representative. (Id. at

p. 436 [“an order based upon improper criteria or incorrect assumptions calls for

reversal”].)

As to the derivative Wage Statement Class, however, Woodworth fails to show an

abuse of discretion. She argues that the court erred by denying certification of the

underlying AWS Overtime and Regular Rate Classes, so it necessarily erred by denying

certification of the derivative class. But because we have determined that the court

properly denied certification of the underlying classes, we reject Woodworth’s argument.

In sum, the court abused its discretion by denying certification of the stand-alone

Wage Statement Class. The record does not contain substantial evidence to support the

98 predominance finding, and the court applied improper criteria when it found that

Woodworth was an inadequate class representative. We therefore reverse the order

denying certification of the stand-alone Wage Statement Class and remand for the court

to consider (1) whether Woodworth carried her burden on the other elements of class

certification and (2) any other arguments that the parties made (or may make in light of

this opinion) concerning certification of this class. (See, e.g., Linder, supra, 23 Cal.4th at

pp. 448-449 [reversing and remanding for reconsideration because the court was not

“prepared to say that class treatment necessarily is proper,” and “upon a fresh look [the

trial court] may discern valid reasons for denying” the certification motion].) However,

we do not disturb the portion of the court’s order denying certification of the derivative

5. Waiting Time Penalty Class

Woodworth sought to certify a Waiting Time Penalty Class that was “purely

derivative” of her AWS Overtime, Regular Rate, and Rest Break Classes. Her moving

papers addressed the Waiting Time Penalty Class in three brief sentences and did not

discuss any evidence or authorities. The court denied certification of the Waiting Time

Penalty Class because there was “no support in [Woodworth’s] motion for certification”

of the class. On appeal, Woodworth argues that the court abused its discretion because it

should have certified the underlying classes. Because we have determined that the court

properly denied certification of the underlying classes, we reject the argument.

99 V. Motion for Summary Adjudication on the Regular Rate Claim, the Wage Statement

Claim, and the Waiting Time Claim

The medical center moved for summary adjudication on Woodworth’s regular

rate, wage statement, and waiting time claims. (The medical center labeled the motion,

“Motion for Summary Adjudication No. 1” (capitalization and boldface omitted).) It

sought summary adjudication of her individual claims as well as the PAGA cause of

action, to the extent that she based that cause of action on the regular rate, wage

statement, and waiting time claims. The court granted the motion in its entirety. We

conclude that the court erred with respect to (1) the PAGA regular rate claim, (2)

Woodworth’s individual wage statement claim and the PAGA wage statement claim, and

(3) the PAGA waiting time claim. The court properly granted summary adjudication,

however, on Woodworth’s individual regular rate and waiting time claims.

A. Regular Rate Claim

Woodworth argues that the court erred by granting summary adjudication in favor

of the medical center as to her individual regular rate claim and the PAGA regular rate

claim. We disagree that the court erred by granting summary adjudication on her

individual claim. But as to the PAGA regular rate claim, we agree that the court erred.

1. Relevant Background

The medical center offered its written policy on the Christmas bonus in support of

the motion for summary adjudication. The policy described the bonus as a “discretionary

bonus provided to eligible employees as a gift for their service.” “The availability of the

bonus, the amount, and the eligibility criteria [were] discretionary and subject to review,

100 change, and approval each year.” “Generally,” eligibility for the bonus was based on

“the average number of eligible hours paid during a specified six (6) pay periods prior to

the bonus payment.” If the medical center had paid the employee for an average of 39.90

eligible hours or more, the employee generally was eligible for the bonus. In addition,

the employee had to be an active employee who had passed their “90-day introductory

period” by a specified date before the bonus payment. The policy identified 13 types of

hours that would count toward an employee’s average eligible hours—for example,

regular hours, overtime hours, sick leave hours, jury duty hours, funeral leave hours, and

voluntary time off. The policy stated that “[g]enerally, bonus payments are paid to all

eligible employees during December of each year.”

In support of the motion, the medical center also offered another declaration from

Bowell, the payroll manager. According to her, management met each fall and instructed

payroll whether it would be giving Christmas bonuses that year and, if so, how to

determine who would receive the bonus and the dollar amount. Bowell explained that the

medical center did not strictly follow the eligibility factors in the written policy. For

instance, in 2012 and 2013, the medical center gave Christmas bonuses to employees

who did not qualify under the eligibility factors.

Each year since 2010, the medical center paid Christmas bonuses of between $50

and $500. It gave Woodworth Christmas bonuses in 2012 and 2013 of $344.11 and

$356.40, respectively. The medical center did not pay Woodworth any other type of

bonus. It did not base the amount of her Christmas bonuses on the number of hours she

worked, her production, or her efficiency. The medical center gave whatever dollar

101 amount it decided was appropriate, and in the years it paid Woodworth the bonus, it gave

different gross amounts to different employees. The amounts awarded to full-time

employees “were much more influenced by their estimated taxes than by the factors listed

in the bonus policy.”

In January 2015, the medical center published an outline of employee benefits.

That outline explained that “[a] Christmas bonus is available for full-time regular

employees and part-time regular benefit eligible employees.” It also referred employees

to the full policy on Christmas bonuses.

According to Woodworth’s deposition testimony, the medical center did not

promise to pay her a Christmas bonus when it hired her. She did not expect a Christmas

bonus until a coworker told her that they would be receiving one. She had never seen the

outline of employee benefits and did not rely on any of the information in it.

On the basis of the foregoing evidence, the medical center argued that it properly

excluded the Christmas bonus from the regular rate calculation under both the special

occasion gift exclusion and the discretionary bonus exclusion. It further argued that

Woodworth was precluded from pursuing her flat sum bonus theory; she did not allege it

in the TAC or disclose it in her discovery responses but raised it for the first time in her

class certification motion. In the alternative, the medical center argued that her flat sum

bonus theory lacked merit because she never received a bonus apart from the Christmas

bonus. Finally, the medical center argued that it was entitled to summary adjudication on

the PAGA regular rate claim because Woodworth’s regular rate claim lacked merit.

102 In opposition to the summary adjudication motion, Woodworth argued that the

medical center’s Christmas bonus policy and outline of benefits gave rise to an implied

promise to pay the bonus. Moreover, she argued that all aggrieved employees including

herself (for purposes of the PAGA cause of action) were entitled to the Christmas bonus

because virtually all eligible employees received it every year since 2010, and the

eligibility requirements were not discretionary. And as to the flat sum bonus theory,

Woodworth argued that she had adequately alleged the theory in her TAC. She also

asserted that the medical center failed to carry its burden with respect to the aggrieved

employees’ PAGA claim—the medical center’s showing was limited to Woodworth.

The medical center submitted another declaration from Bowell with its reply

papers. Bowell explained that in 2012 and 2013, the medical center’s administration

instructed payroll to give Woodworth a bonus that would yield $200 after taxes were

deducted. Her Christmas bonuses of $344.11 and $356.40 yielded after-tax gifts of $200.

The trial court granted the summary adjudication motion on Woodworth’s

individual regular rate claim and the PAGA regular rate claim. The court ruled that the

medical center’s evidence showed that it properly calculated the regular rate of pay, and

there was no triable issue of material fact.

2. Analysis

The medical center carried its initial burden of demonstrating that Woodworth’s

individual regular rate claim lacked merit. The medical center’s evidence showed that

the Christmas bonus qualified for the special occasion gift exclusion, and the medical

center therefore could exclude the bonus when calculating employees’ regular rate of

103 pay. (29 U.S.C. § 207(e)(1); 29 C.F.R. § 778.200(a)(1) (2022).) “[P]ayments in the

nature of gifts made at Christmas time . . . as a reward for service” qualify, so long as

“the amounts . . . are not measured by or dependent on hours worked, production, or

efficiency.” (29 U.S.C. § 207(e)(1); 29 C.F.R. § 778.212(c) (2022).) The medical

center’s policy showed that the bonus was a gift for employees’ service and that it

generally paid the bonus in December (Christmas time). According to Bowell, the

medical center did not base the amount of the bonus on hours worked, production, or

efficiency. The medical center determined whether employees were eligible for the

Christmas bonus on the basis of the hours for which they were paid during a specified

period. But the eligibility criteria merely established whether someone was qualified to

receive the bonus at all, not the amount of the bonus. (See De Vries v. Regents of

University of California (2016) 6 Cal.App.5th 574, 592 [“the ordinary meaning of

‘eligibility’ connotes qualification for a benefit”].) Moreover, the medical center based

eligibility on hours paid, not hours worked. The hours that counted toward eligibility

included numerous types of nonwork hours, like sick leave or jury duty.

In response to the medical center’s showing on the Christmas bonus, Woodworth

failed to show a triable issue of material fact. She argues that there was a factual dispute

as to whether the Christmas bonus qualified as a discretionary bonus. However, the

discretionary bonus and the special occasion gift are independent exclusions. A bonus

need qualify for only “one of these types” of exclusions to be excluded from the regular

rate calculation. (29 C.F.R. § 778.208 (2022).)

104 Woodworth also asserts that virtually all employees received the Christmas bonus

every year since 2010, but a bonus qualifies for the special occasion gift exclusion even if

is paid “to all employees” and “with regularity so that the employees are led to expect it.”

(29 C.F.R. § 778.212(c) (2022).) She further relies on the Christmas bonus policy and

the outline of employee benefits to argue that the medical center implicitly promised to

pay the bonus. It is true that a bonus does not qualify for the special occasion gift

exclusion if it “is paid pursuant to contract (so that the employee has a legal right to the

payment and could bring suit to enforce it).” (29 C.F.R. § 778.212(b) (2022).) But the

policy specified that the availability and amount of the bonus were subject to review,

change, and approval each year. In other words, there was no guarantee that the medical

center would provide the Christmas bonus. And the outline merely stated that the bonus

was “available.” No reasonable trier of fact would find that those statements gave rise to

an enforceable contract to pay the bonus. Indeed, Woodworth introduced no evidence

that she or any employee saw those documents and reasonably interpreted them as a

contract to pay the Christmas bonus. Nor did she introduce evidence of any other

conduct that would give rise to an enforceable contract.

Woodworth further argues that the trial court erred by implicitly overruling her

objections to Bowell’s declaration and relying on the declaration. She does not explain

the basis for her objections, why the court erred by overruling them, and why any error

was prejudicial. She thus forfeited the argument. (Cahill, supra, 194 Cal.App.4th at

p. 956.)

105 With respect to Woodworth’s flat sum bonus theory, the medical center also

carried its initial burden of demonstrating that her individual regular rate claim lacked

merit. The evidence showed that Woodworth received a Christmas bonus but no other

type of bonus, so she had no claim that the medical center improperly excluded some

other bonus from her regular rate of pay. Woodworth did not dispute that evidence.

Accordingly, the court did not err by granting summary adjudication in favor of the

medical center on Woodworth’s individual regular rate claim, whether she based it on the

Christmas bonus or some other type of bonus.

The court’s PAGA ruling, however, is a different matter. The medical center

argued that it was entitled to summary adjudication on the PAGA regular rate claim

because Woodworth’s individual claim lacked merit. But the regular rate claim of the

aggrieved employees is not wholly derivative of Woodworth’s individual claim. In the

TAC, Woodworth alleged that the medical center had “failed to properly include items of

remuneration when determining the employees’ regular rate,” including “non-

discretionary bonuses paid to all eligible employees.” Similarly, in Woodworth’s

prelawsuit PAGA notice to the LWDA and the medical center, she alleged that the

medical center failed “to include all required remuneration (including but not limited to

bonuses) when calculating the regular rate.”

The medical center offered evidence that Woodworth did not receive a bonus

besides the Christmas bonus, but it did not offer evidence about any other discretionary

bonus that it excluded from the regular rate calculation for other employees. Nor did it

claim that such bonuses do not exist. (On appeal, the medical center acknowledges that

106 at least one such bonus exists—“a discretionary ‘thank you’ bonus.’”) Instead, the

medical center argued that Woodworth did not sufficiently allege a flat sum bonus theory

apart from the Christmas bonus theory. The argument lacks merit because the TAC did

not limit her theory to the Christmas bonus. Fairly read, it encompassed any bonus that

the medical center excluded as a discretionary bonus, whether it was a flat sum or not.

By failing to offer any evidence that showed it properly excluded other bonuses from the

regular rate calculation, the medical center failed to carry its initial burden on the PAGA

cause of action. The court consequently erred by granting summary adjudication in favor

of the medical center on the PAGA cause of action, to the extent that it was based on the

regular rate claim.

For all of these reasons, the court properly granted the summary adjudication

motion as to Woodworth’s individual regular rate claim, but it erred by granting the

motion as to the PAGA regular rate claim.

B. Wage Statement Claim

Woodworth contends that the court erred by granting the medical center’s

summary adjudication motion on her wage statement claim. We agree. Under the

Supreme Court’s recent decision in Naranjo, the medical center was not entitled to

summary adjudication on the derivative form of this claim, i.e., the claim that the wage

statements failed to accurately report premium pay for missed rest periods or overtime.

(Naranjo, supra, 13 Cal.5th at p. 121.) Given that the motion did not “completely

dispose[]” of the claim, the court should not have granted it. (Code Civ. Proc., § 437c,

subd. (f)(1).)

107 1. Relevant Background

As the medical center argued in connection with the class certification motion, it

again argued that under Morgan, section 226 does not require a separate line item

showing the sum of all hours worked. Instead, so long as the employee could add the

regular hours and overtime hours shown on the statement and determine total hours

worked, the statement complied with section 226. The medical center further argued that

California law did not permit derivative wage statement liability.

In support of the summary adjudication motion, the medical center offered all of

Woodworth’s wage statements. It also relied on her deposition testimony concerning her

wage statements. In the deposition excerpt, counsel questioned Woodworth about six of

her wage statements, including this one from April 2012 (which we also discussed in the

earlier section about the class certification motion):

Woodworth testified that she could determine her total hours worked by adding the hours

for “Regular Pay” and “Double Pay” on this statement. Counsel asked if she could “tell

from reading this wage statement” that “70.40 of [her] 73 regular hours [were] paid for

the night differential.” She replied in the affirmative. At the end of the questioning about

108 all six wage statements, Woodworth confirmed that she would be able to follow the same

procedure with her other wage statements to figure out her total hours worked. On the

basis of Woodworth’s testimony and wage statements, the medical center argued that

Woodworth, “like any reasonable person,” could easily determine her total hours worked

by adding the regular pay and double pay entries on the wage statements. Accordingly,

there was no basis to presume that she suffered an injury from her wage statements.

In opposition to the medical center’s motion, Woodworth argued that the medical

center was not entitled to summary adjudication because it furnished inaccurate and

misleading wage statements. That is, the wage statements reflected an inaccurate total

for hours worked, given that the total figure double counted shift differential hours and

included nonwork hours, like paid sick leave. Woodworth contended that the wage

statements did not comply with section 226 because the total hours figure did not

accurately reflect worked hours, and there was no other line item showing total hours

worked. Woodworth relied on the same Kriegler declaration that she had offered in

connection with the class certification motion, in which Kriegler concluded that 90.4

percent of the wage statements from June 2013 to August 2015 inaccurately reflected

total hours by including shift differentials, paid time off, and/or holiday bonuses.

Regarding the PAGA wage statement claim, Woodworth argued that there was no

injury requirement, so the medical center’s injury argument was irrelevant. Woodworth

also argued that she and the aggrieved employees had a derivative wage statement claim

based on the regular rate claim, the overtime claim, and the rest period claim—that is, the

wage statements were inaccurate in that they reflected an improperly calculated regular

109 rate, failed to reflect overtime compensation that was owing, and failed to reflect missed

break premiums. She asserted that the authority on which the medical center relied was

distinguishable and inconsistent with other cases approving derivative wage statement

claims.

The court granted the summary adjudication motion as to Woodworth’s individual

and PAGA wage statement claims. The court ruled that Morgan, supra, 186 Cal.App.4th

1136, rejected Woodworth’s theory that the wage statements must include “a separate

line item for ‘Total Hours Worked’ and a summation of the total hours worked[,] as this

was easily determined from the information provided on the wage statements.” The court

did not expressly address the derivative form of her wage statement claim.

To review, under section 226, subdivision (a), the employer must provide accurate

wage statements reporting nine categories of information, including gross wages earned,

net wages earned, all relevant hourly rates in effect during the pay period, and “total

hours worked by the employee.” Under subdivision (e) of the statute, to recover actual

damages or statutory penalties, the employee must demonstrate that (1) the employer’s

failure to comply with subdivision (a) was “knowing and intentional,” and (2) the

employee suffered injury as a result of the failure. (§ 226, subd. (e)(1).) An employee

“is deemed to suffer injury . . . if the employer fails to provide accurate and complete

information” regarding total hours worked, and “the employee cannot promptly and

easily determine” their total hours worked “from the wage statement alone.” (§ 226,

subd. (e)(2)(B) & (i).) “‘[P]romptly and easily determine’ means a reasonable person

110 would be able to readily ascertain the information without reference to other documents

or information.” (§ 226, subd. (e)(2)(C).)

Not all of the foregoing elements apply to a PAGA cause of action. (Lopez v.

Friant & Associates, LLC (2017) 15 Cal.App.5th 773, 784 (Lopez).) Specifically, a

plaintiff seeking civil penalties under PAGA for a violation of section 226, subdivision

(a), “does not have to satisfy the ‘injury’ and ‘knowing and intentional’ requirements” of

subdivision (e). (Lopez, supra, at p. 788; Raines v. Coastal Pacific Food Distributors,

Inc. (2018) 23 Cal.App.5th 667, 679.) The PAGA plaintiff need only show that the

employer failed to provide an accurate wage statement under subdivision (a) of section

226. (Raines, supra, at p. 679; Lopez, at p. 785.)

Morgan construed the requirement that wage statements show total hours worked

under section 226, subdivision (a). (Morgan, supra, 186 Cal.App.4th at pp. 1144-1149.)

There, the employer’s wage statements accurately listed the regular hours worked and

overtime hours worked, but the statements did not include a separate line item reporting

the sum of those two figures. (Id. at pp. 1140, 1147.) At her deposition, the employee

admitted that the wage statements “‘reflected’” her total hours worked. (Id. at p. 1140.)

The court held that the wage statements complied with section 226, subdivision (a)’s

requirement to show total hours worked. (Morgan, at p. 1149 & fn. 9.) It reasoned that

“nothing in the plain language of section 226” supported the employee’s argument “that

wage statements which accurately list the total regular hours and overtime hours worked

during the pay period must also contain a separate category with the sum of those two

figures.” (Id. at p. 1147.) “The employee could simply add together the total regular

111 hours figure and the total overtime hours figure shown on the wage statement to arrive at

the sum of hours worked.” (Ibid.)

The Morgan court addressed a DLSE opinion letter interpreting section 226. 8

(Morgan, supra, 186 Cal.App.4th at pp. 1144-1145 [discussing “DLSE Opn. Letter No.

2002.05.17 (May 17, 2002)]”.) The DLSE was responding to a query from an employer

that listed 86.67 hours worked, which the employer calculated by “dividing the total

number of non-overtime hours in a year (2,080) by the number of pay periods in a year

(24).” (DLSE Opn. Letter No. 2002.05.17 (May 17, 2002), at p. 1.) The employer

acknowledged that its “pay periods never consist[ed] of precisely 86.67 hours,” because

the number of workdays and non-overtime work hours varied in each pay period. (Id. at

p. 2.) The agency concluded that the employer’s practice violated section 226: “[T]he

obligation to list the total hours worked during the pay period can only be satisfied by

listing the precise, actual number of hours worked. . . . The reason for this requirement is

simple enough—it is designed to provide the employee with a record of hours worked,

and to assist the employee in determining whether he [or she] has been compensated

properly for all of his or her hours worked. The failure to list the precise number of hours

worked during the pay period conflicts with the express language of the statute and stands

in the way of the statutory purpose.” (DLSE Opn. Letter, supra, at p. 3.) The DLSE

opined that the employer could satisfy its obligation by attaching time records to the

8 “The DLSE is the state agency authorized to interpret and enforce California wage and hour laws.” (Morgan, supra, 186 Cal.App.4th at p. 1144, fn. 5.) “While the DLSE’s construction of a statute is entitled to consideration and respect, it is not binding” on the courts. (Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1105, fn. 7.)

112 employee’s wage statement, but only if the time records “separately listed” the total hours

worked and did not leave it “to the employee to add up the daily hours shown on the time

cards or other records.” (Id. at p. 6.)

Morgan reasoned that the wage statements separately listing regular hours and

overtime hours were consistent with the DLSE’s opinion letter. (Morgan, supra, 186

Cal.App.4th at p. 1147.) The statements satisfied the obligation to list the “‘precise,

actual number of hours worked,’” and they did not leave it to the employees to add up the

daily number of hours shown on time records. (Ibid.) Moreover, the wage statements

were consistent with an exemplar wage statement posted on the DLSE’s website. (Ibid.)

The exemplar statement separately listed the total regular hours worked and the total

overtime hours worked during the pay period, but it did not include a line item showing

the sum of those hours. 9 (Ibid.)

In this case, the court properly determined that the medical center had carried its

burden with respect to the stand-alone wage statement claim of Woodworth and the

aggrieved employees. The medical center demonstrated that its wage statements

complied with section 226 by reporting the total number of hours worked by an

employee. It offered evidence of Woodworth’s wage statements, which precisely listed

her regular pay hours and double pay hours for the pay period. Woodworth could derive

9 For the exemplar statement described in Morgan, see https://www.dir.ca.gov/dlse/faq_paydays.htm (directing readers to click a link for “an example of an itemized wage statement (pay stub) as required by Labor Code Section 226 for an employee paid an hourly wage”), and https://www.dir.ca.gov/dlse/PayStub.pdf (linked exemplar statement).

113 her total hours worked by adding those entries. And listing those hours separately, along

with the applicable rates of pay, permitted her to determine whether she had been

compensated properly for all of her hours worked. (Morgan, supra, 186 Cal.App.4th at

p. 1145.) The medical center thus showed that, consistent with Morgan, it provided

accurate wage statements “showing . . . total hours worked.” (§ 226, subd. (a).) That

compliance with subdivision (a) of section 226 defeats her individual, “private cause of

action” as well as the PAGA claim. (Lopez, supra, 15 Cal.App.5th at p. 784.)

Woodworth argues that the court erred because the wage statements “failed to

provide ‘total hours worked.’” To the extent that she means there was no line reporting

the sum of regular and overtime hours worked, that was not required under Morgan.

(Morgan, supra, 186 Cal.App.4th at p. 1147.) She also argues that the wage statements

“provided an inaccurate hours total.” She presumably refers to the fact that the

“TOTAL” on the wage statements reflected the sum of regular pay hours, double pay

hours, and other earnings codes on the wage statements (like differential pay hours or

paid leave hours). But on its face, that total does not purport to reflect only total hours

worked, as opposed to a total of the various types of hours listed on the statement. The

fact that the medical center reported that latter total does not mean that it failed to

accurately report her total hours worked. Woodworth does not dispute the accuracy of

the entries for regular pay hours and double pay hours, the sum of which showed total

hours worked.

Notwithstanding the court’s correct ruling on the stand-alone wage statement

claim, the court erred by implicitly rejecting Woodworth’s derivative wage statement

114 claim. The medical center argued that California law does not permit derivative wage

statement claims, but our Supreme Court recently rejected that proposition in Naranjo.

That case involved an underlying claim for missed meal breaks. (Naranjo, supra, 13

Cal.5th at pp. 102-103.) The plaintiff alleged that his employer unlawfully required

employees to remain on duty during meal periods, and he sought missed break premiums

under section 226.7, subdivision (c), for the on-duty meal periods. (Naranjo, at pp. 102-

103.) He further alleged that the employer was liable under section 226 for failing to

report those missed break premiums on the employees’ wage statements, and he sought

damages on that basis for inaccurate wage statements. (Naranjo, at p. 103.) The high

court held that the missed break premium constituted wages subject to the wage

statement reporting requirements of section 226. (Naranjo, at pp. 102, 117-121, 125.)

Thus, the failure to report the missed break premium could support liability “for failure to

supply an accurate itemized statement reflecting an employee’s gross wages earned, net

wages earned, and credited hours worked.” (Id. at p. 121.)

Woodworth and the aggrieved employees may pursue a derivative wage statement

claim under Naranjo. Woodworth’s rest period claim survives, and as we discuss in a

following subpart, the PAGA rest period claim survives as well. To the extent that

Woodworth proves the medical center unlawfully denied her and the aggrieved

employees rest periods, the medical center owes them missed break premiums. (§ 226.7,

subd. (c).) And the omission of those missed break premiums from the employees’ wage

statements may support liability for inaccurate wage statements. (Naranjo, supra, 13

Cal.5th at p. 121.) Likewise, the aggrieved employees’ regular rate claim survives and

115 may support derivative liability for inaccurate wage statements. Overtime pay, like the

additional hour of pay that constitutes the missed break premium, is a form of wages that

the employer must accurately report on wage statements. (Id. at pp. 107, 109.) To the

extent that Woodworth proves the medical center miscalculated the regular rate by

excluding nondiscretionary bonuses, the corresponding wage statements would not

accurately reflect the employees’ overtime rate or their hourly rate for the missed break

premium. The wage statements thus would inaccurately report overtime wages and

premium pay. According to Naranjo, those inaccuracies would support liability under

section 226.

In sum, the court correctly determined that the medical center was entitled to

summary adjudication on the stand-alone wage statement claim. But the medical center

was not entitled to summary adjudication on the derivative form of the wage statement

claim, so its motion did not completely dispose of the claim. The court therefore erred by

granting summary adjudication on the claim. (Code Civ. Proc., § 437c, subd. (f)(1) [“A

motion for summary adjudication shall be granted only if it completely disposes of a

cause of action, an affirmative defense, a claim for damages, or an issue of duty”].)

C. Waiting Time Claim

Woodworth argues that the court erred by granting the medical center’s summary

adjudication motion on the waiting time claim. We agree with respect to the PAGA

claim but not as to her individual claim.

116 1. Relevant Background

In support of the medical center’s arguments on this claim, it relied again on

Bowell’s declaration. She declared that the medical center had paid Woodworth for all

hours that she worked, for all vacation time, and all other compensation owed to her. The

medical center also submitted Woodworth’s response to an interrogatory asking her to

state all facts in support of her individual waiting time claim. She responded that the

medical center had not paid her all wages due because of its rounding policy, the failure

to include all remuneration in her regular rate calculation, the failure to pay her overtime

for shifts over eight hours, and the failure to pay her missed break premiums.

The medical center argued that the waiting time claim failed because the

underlying claims failed—the court had granted summary adjudication for the medical

center on the rounding claim and the claim for missed meal periods, the instant motion

showed her regular rate claim lacked merit, and her overtime claim failed based on a

valid AWS (which was addressed in the concurrently filed summary adjudication motion

on that defense). The medical center further argued that even if the underlying claims

had merit, the law mandated waiting time penalties only if the failure to pay wages was

willful. It contended that Woodworth’s interrogatory response failed to set forth any

facts showing willfulness. In addition, it argued, a good faith dispute that wages were

due precluded a willfulness finding, and the summary adjudication motions presented a

good faith dispute about whether Woodworth was due wages for the underlying claims.

Woodworth argued in her opposition brief that the medical center knew what it

was doing and intended to pay the amounts set forth in the wage statements of

117 Woodworth and the aggrieved employees. She asserted that such conduct was willful

and that the medical center had offered no contrary argument. She additionally argued

that the medical center failed to present evidence of a good faith dispute with respect to

the regular rate claim or the AWS defense. And she contended that she had a stand-alone

waiting time claim based on a check issued several days late. Her evidence showed that

on May 19, 2014, she resigned and informed the medical center that her last day of work

would be June 1, 2014. On May 30, 2014, the medical center issued her a check for net

earnings and sick pay of over $1,300. But on June 5, 2014, the medical center issued her

a second check for net “Retro Pay” of over $300.

In its reply brief, the medical center generally argued that Woodworth had offered

no evidence to dispute Bowell’s declaration, and she had offered no evidence of a willful

failure to pay wages owed at the time of her separation.

The court granted summary adjudication for the medical center on the waiting

time claim. It ruled that Bowell’s declaration showed that the medical center had paid

Woodworth all wages owed. Moreover, the court ruled, Woodworth failed to offer

evidence showing a triable issue of fact as to the willfulness element.

If an employee gives “72 hours previous notice of his or her intention to quit,” the

“employee is entitled to his or her wages at the time of quitting.” (§ 202, subd. (a).)

When an employer discharges the employee, “the wages earned and unpaid at the time of

discharge are due and payable immediately.” (§ 201, subd. (a).) The employer must pay

a penalty for “willfully fail[ing] to pay” the employee’s wages in accordance with those

118 deadlines. (§ 203, subd. (a).) “A willful failure to pay wages” means that the employer

intentionally failed to pay when the wages were due. (Cal. Code Regs., tit. 8, § 13520.)

A failure to pay that is inadvertent or a mistake is not “‘willful’” for these purposes.

(Nishiki v. Danko Meredith, APC (2018) 25 Cal.App.5th 883, 892.)

Also, “a good faith dispute that any wages are due will preclude imposition of

waiting time penalties.” (Cal. Code Regs., tit. 8, § 13520.) “A ‘good faith dispute’ that

any wages are due occurs when an employer presents a defense, based in law or fact

which, if successful, would preclude any recovery on the part of the employee. The fact

that a defense is ultimately unsuccessful will not preclude a finding that a good faith

dispute did exist. Defenses presented which, under all the circumstances, are

unsupported by any evidence, are unreasonable, or are presented in bad faith, will

preclude a finding of a ‘good faith dispute.’” (Cal. Code Regs., tit. 8, § 13520(a).)

Whether a good faith dispute exists is “an issue of fact.” (Maldonado, supra, 22

Cal.App.5th at p. 1332.)

Here, Woodworth fails to show that the court erred by granting the summary

adjudication motion on her individual waiting time claim. (Dinslage v. City and County

of San Francisco (2016) 5 Cal.App.5th 368, 379 [appellant seeking review of an order

granting summary adjudication bears the burden of affirmatively demonstrating error, as

in any appeal].) First, she argues that the court erred by implicitly overruling her

objections to the statements in Bowell’s declaration that the medical center had paid her

all compensation owing. But as before, Woodworth forfeited the argument. (Cahill,

supra, 194 Cal.App.4th at p. 956.) She asserts that Bowell’s statements amounted to

119 improper legal conclusions, offering no further argument or citation to authority. That

conclusory assertion does not establish that the court abused its discretion or that any

error was prejudicial.

Second, Woodworth contends that evidence of the “Retro Pay” check (issued four

days after she resigned) created a triable issue of fact as to whether she had a stand-alone

waiting time claim. That argument lacks merit. The TAC did not allege that the medical

center had issued her a check several days late. And the medical center submitted

Woodworth’s interrogatory response describing her waiting time claim as a derivative

one based on underlying wage and hour violations. She made no mention of a stand-

alone waiting time claim. That shifted the burden to Woodworth to show a triable issue

of material fact as to a stand-alone waiting time claim. (Silva, supra, 7 Cal.App.5th at

pp. 259-260 [plaintiff’s interrogatory response was devoid of facts to support certain

claims, shifting the burden to her to show a triable issue of fact on those claims]; Union

Bank v. Superior Court (1995) 31 Cal.App.4th 573, 581.) Even if the check for “Retro

Pay” constituted wages that were due upon her separation, she proffered no evidence that

the medical center intentionally—as opposed to inadvertently or mistakenly—failed to

issue the payment four days earlier. She thus did not show a triable issue of material fact

on any stand-alone waiting time claim.

Third, Woodworth argues that the medical center failed to present evidence of a

good faith dispute about the regular rate claim or the AWS defense, so her derivative

waiting time claim should survive. We also reject that argument. A good faith defense

based in law or fact constitutes a good faith dispute. The medical center presented such

120 defenses. The same motion showed that Woodworth’s regular rate claim lacked merit,

and the concurrently filed motion on the AWS defense showed that the defense had

merit. (We discuss the merits of the AWS motion in a following subpart.) The medical

center therefore showed a good faith dispute precluding liability for waiting time

penalties based on Woodworth’s individual regular rate claim and overtime claim. 10

However, as to the waiting time claim of the aggrieved employees, the court erred

by granting summary adjudication on the PAGA waiting time claim. The medical center

argued that the waiting time claim lacked merit insofar as the regular rate claim lacked

merit. But we have concluded that the court erred by granting summary adjudication in

favor of the medical center on the PAGA regular rate claim. Because that underlying

claim survives, the derivative waiting time claim survives. Moreover, the medical center

did not carry its burden of showing a good faith dispute about the PAGA regular rate

claim, such that a finding of willful failure to pay would be precluded. As discussed, the

10 At oral argument in this matter, Woodworth argued that her derivative waiting time claim survives on the basis of her surviving rest period claim, and the medical center did not show a good faith dispute regarding her rest period claim. But Woodworth forfeited the argument that the medical center was not entitled to summary adjudication on that ground. Her brief opposing the summary adjudication motion did not argue that she had a derivative waiting time claim on the basis of the surviving rest period claim. Similarly, neither her opening nor her reply brief on appeal made that argument. Woodworth’s failure to preserve the argument in the trial court and failure to raise it in her appellate briefing forfeited the argument. (Animal Protection & Rescue League v. City of San Diego (2015) 237 Cal.App.4th 99, 107, fn. 5 [declining to consider an argument raised for the first time at oral argument on appeal]; Saville v. Sierra College (2005) 133 Cal.App.4th 857, 872-873 [appellant’s failure to make an argument in opposition to the summary judgment motion forfeited the argument on appeal].) By contrast, her briefing both in the trial court and on appeal argued that she had a derivative wage statement claim on the basis of her rest period claim, so she did not forfeit that argument.

121 medical center presented no evidence whatsoever about flat sum bonuses it excluded

from the regular rate calculation, except for the Christmas bonus. A defense that is

“unsupported by any evidence” precludes a finding of a good faith dispute. (Cal. Code

Regs., tit. 8, § 13520(a); see Maldonado, supra, 22 Cal.App.5th at p. 1333 [affirming

finding of no good faith dispute when “there was no objectively reasonable factual basis

for [the employer’s] defense” to overtime claim on which derivative waiting time claim

was based].)

In sum, we conclude that the court properly granted summary adjudication in

favor of the medical center on Woodworth’s individual waiting time claim but not on the

PAGA waiting time claim.

VI. Motion for Summary Adjudication on the AWS Defense

The medical center moved for summary adjudication on its affirmative defense to

the overtime claim, the AWS defense. (The medical center labeled the motion, “Motion

for Summary Adjudication No. 3” (capitalization and boldface omitted).) The trial court

granted the motion as to Woodworth’s individual overtime claim and the PAGA cause of

action, to the extent that she based the latter on allegedly invalid AWS’s. We conclude

that the court did not err.

The medical center offered the declaration of its vice president of human

resources, Lizette Norton, in support of the motion. Norton started working at the

medical center in July 2001, left in 2010, and returned in 2016. She was familiar with the

medical center’s policies and procedures for AWS elections from 2001 to the present.

122 According to Norton, Woodworth was a clinical nurse in the cardio thoracic intensive

care unit. Before Woodworth’s time at the medical center, the clinical nurses voted to

adopt an AWS—namely, a workweek consisting of three 12-hour workdays (3/12 AWS).

The AWS election took place in September 2001. Norton declared that the election

followed certain procedures set forth in a memorandum sent to employees. The election

was by secret ballot and occurred during regular work hours at the employees’ work site.

The medical center mailed the clinical nurses a disclosure document, a proposed AWS

agreement, and the secret ballot. In relevant part, the disclosure document stated:

• “Duly noticed meetings will be held for the specific purpose of discussing” the

effects of the AWS.

• The AWS “shall consist of a regularly scheduled workweek of three workdays of

12 hours each,” and “[e]mployees will not receive overtime pay for their regularly

scheduled hours.”

• “Employees will be paid one and one-half times their regular rate of pay for all

hours worked in excess of 40 in a workweek.” They “will be paid two times their

regular rate of pay for all hours worked in excess of 12 in a workday.”

• “The amount of overtime that an employee will be required to work will be subject

to the requirements of sections 3(B1)(8) and (9) of Wage Order 5-2000.”

• “Employees who work an alternative work schedule will be eligible for all

Medical Center-sponsored benefits on the same basis as other employees. . . .

Employee benefits are summarized in the Employee Handbook and the summary

plan descriptions given to each employee.”

123 • “The Medical Center may terminate the use of the alternative work schedule

described above upon two weeks’ advance notice. In such an event, the Medical

Center may institute and implement a different schedule, workweek or work

period that is consistent with any applicable legal requirements.”

Similar to the disclosure document, the AWS agreement stated that the medical center

could terminate the AWS with two weeks’ advance notice to the affected employees.

The medical center posted notices to inform the employees that it would hold

meetings to discuss the effects of the AWS, and it held those meetings at least 14 days

before the voting began. It distributed the disclosure document again at the meetings.

The medical center placed ballot boxes in the departments to collect the secret ballots.

After a two-week voting period, it collected and counted the ballots. Out of 1,785 nurses

eligible to vote in the election, 1,583 voted, and 1,545 voted in favor of the AWS. The

work unit did not include 5 percent or more employees who primarily spoke a non-

English language. The medical center reported the election results to the DLSR in

October 2001.

When the medical center hired Woodworth, she agreed to the 3/12 AWS that the

clinical nurses had adopted in 2001. She executed an AWS agreement in December

2011.

The 2001 AWS was in effect until 2013. The medical center restructured the

AWS work units that year. In June 2013, it conducted an AWS election for registered

nurses in various units, including Woodworth’s unit. The medical center’s policy and

124 practice at all times was to hold AWS elections during regular working hours at the work

site.

Norton was not at the medical center during the 2013 election, but she had

reviewed the medical center’s records for the election, which records had been made at

the time by medical center employees in the regular course of business. Those records

were attached to Norton’s declaration and showed that in April 2013, a human resources

employee emailed the AWS disclosure document and a schedule for pre-election

meetings to Woodworth and the other registered nurses eligible to vote in the AWS

election. The medical center proposed to retain the 3/12 AWS. The relevant disclosures

in the 2013 document were nearly identical to those in the 2001 disclosure document.

The medical center held pre-election meetings on various dates between May 6

and May 25, 2013. According to the medical center’s records, Woodworth attended the

May 22 meeting and voted in the election, which took place from June 11 through June

13. Out of 701 nurses eligible to vote in the election, 575 nurses voted. They all voted in

favor of the 3/12 AWS. The medical center reported those results to the DLSR in June

2013. Woodworth executed a new AWS agreement in July 2013. Like the earlier AWS

agreement, the new agreement stated that the medical center could terminate the AWS

with two weeks’ notice to the affected employees.

Norton declared that the medical center required all clinical and registered nurses

to be capable of reading, writing, and speaking English at a professional level. That was

because the medical center maintained patient records in English, and doctors’ orders and

other patient care information were conveyed in English. The nurses who were eligible

125 to vote in the 2013 AWS election could read, write, and speak English “with professional

quality as their primary language.”

Apart from Norton’s declaration, the medical center offered the declaration of

Beth Cook, a registered nurse employed by the medical center from 1996 to the present.

During the 2013 AWS election, Cook was director of patient care for two departments

(orthopedics and transplant). Human resources copied her and other directors on the

2013 email attaching the AWS disclosures. According to Cook, the medical center sent

that email to all registered nurses who were eligible to vote in the election.

The trial court granted the medical center’s motion for summary adjudication on

the AWS defense in its entirety. The court ruled that there was no triable issue of

material fact and, more specifically, that the medical center’s evidence showed that it had

substantially complied with the AWS election procedures. The court thus concluded that

the medical center was entitled to summary adjudication on Woodworth’s individual

overtime claim as well as the PAGA claim, to the extent that Woodworth based the latter

on the overtime claim. In addition, the court overruled Woodworth’s objections to

Norton’s declaration. (Woodworth had filed a 37-page document consisting of 59

objections to Norton’s declaration.)

To recap, a validly adopted AWS is an exception to the overtime rules and an

affirmative defense that the employer bears the burden of proving. (§ 510, subd. (a);

Ramirez, supra, 20 Cal.4th at pp. 794-795; Maldonado, supra, 22 Cal.App.5th at

p. 1327.) Wage Order 5 governs AWS’s in the health care industry. (Cal. Code Regs.,

126 tit. 8, § 11050, subds. 1, 2(G), (J), (P)(4); Singh, supra, 140 Cal.App.4th at pp. 397-398.)

We liberally construe the IWC’s wage orders to favor the protection of employees.

(Augustus, supra, 2 Cal.5th at p. 262.) The “usual rules of statutory interpretation apply.”

(Brinker, supra, 53 Cal.4th at p. 1027.) Thus, if the wage order is clear, we give effect to

the ordinary, plain meaning of the language. (Singh, at p. 392.)

Under Wage Order 5, the employer’s proposal for an AWS shall be in the form of

a written agreement. (Cal. Code Regs., tit. 8, § 11050, subd. 3(C)(1).) For an AWS to be

valid, at least two-thirds of the employees in the affected work unit must vote in favor of

the AWS in a secret-ballot election. (Id., § 11050, subd. 3(C)(2).) The employer shall

hold the election during regular working hours at the employees’ work site. (Ibid.)

Before the election, the employer must disclose in writing “the effects of the

proposed [AWS] on the employees’ wages, hours, and benefits.” (Id., § 11050,

subd. 3(C)(3).) “Such a disclosure shall include meeting(s), duly noticed, held at least 14

days prior to voting, for the specific purpose of discussing the effects” of the AWS.

(Ibid.) Further, the “employer shall provide that disclosure in a non-English language, as

well as in English, if at least five (5) percent of the affected employees primarily speak

that non-English language. The employer shall mail the written disclosure to employees

who do not attend the meeting.” (Ibid.) The failure to comply with these pre-election

requirements “shall make the election null and void.” (Ibid.)

Wage Order 5 also requires any AWS agreement adopted under the order to

“provide for not less than four (4) hours of work in any shift.” (Cal. Code Regs., tit. 8,

§ 11050, subd. 3(B)(1), (B)(8)(c).) In addition, the order requires the employer to report

127 the results of the AWS election to the DLSR within 30 days. (Id., § 11050,

subd. 3(C)(6).)

In this case, the court did not err by granting the medical center’s motion for

summary adjudication. The medical center proffered evidence that it complied with the

AWS election procedures for both of the AWS’s under which Woodworth worked. With

respect to the 2001 election, Norton’s declaration and exhibits to it established the

following: The medical center mailed the AWS disclosure document to the affected

employees and held meetings to discuss the proposed AWS at least 14 days before the

election. The medical center provided another copy of the disclosures to the employees

who attended the meetings. The population of affected employees did not consist of 5

percent or more non-English speakers, so there was no need to provide the disclosures in

a language other than English. The disclosures informed employees about the AWS’s

effect on wages and hours—that is, employees would not receive overtime pay for their

regularly scheduled 12-hour shifts, but they would receive overtime pay if they worked

over 40 hours in the workweek or over 12 hours in the workday. As to the AWS’s effect

on benefits, the disclosures informed employees that they would be eligible for benefits

on the same basis as all other employees, as summarized in the employee handbook. The

secret-ballot election took place at the work site during regular work hours, which was

the medical center’s policy and practice at all times. And 1,545 out of 1,785 affected

employees approved the AWS—well beyond the two-thirds vote required.

The medical center’s evidence with respect to the 2013 election was similar.

Norton’s and Cook’s declarations, along with their exhibits, established that the medical

128 center emailed the AWS disclosures to the affected employees in April 2013. The

employees who were eligible to vote spoke English as their primary language, so they did

not need the disclosures in another language. The medical center held meetings to

discuss the AWS in May 2013, at least 14 days before the June election. The medical

center disclosed the same information about the AWS’s effect on wages, hours, and

benefits that it did in connection with the 2001 election. Five hundred seventy-five out of

701 employees voted in favor of the AWS, more than the two-thirds required.

On the basis of the foregoing evidence, the medical center carried its initial burden

of showing a validly adopted AWS in 2001 and 2013. None of Woodworth’s arguments

persuades us that she raised a triable issue of material fact or that the court otherwise

erred by granting the motion. (Dinslage, supra, 5 Cal.App.5th at p. 379 [appellant bears

the burden of affirmatively demonstrating error on appeal from summary adjudication

order].)

Woodworth first argues that the court erred by overruling her objections to

Norton’s declaration because Norton lacked personal knowledge of (1) what occurred

during the 2001 election, (2) the email to employees regarding the 2013 election, and (3)

the English language skills of the voting employees. We are not persuaded that the court

committed prejudicial error here. Woodworth claims that Norton started working at the

medical center after the 2001 election, but that is incorrect. Norton declared that she

began working there in July 2001, and the election took place in September 2001. The

court thus could reasonably conclude that Norton had personal knowledge of the 2001

election. Similarly, the court could reasonably conclude that Norton, a long-time human

129 resources employee at the medical center, knew what language skills the medical center

required for nurses. And even though Norton was not at the medical center for the 2013

election, Woodworth does not challenge the admissibility of the business records

showing that another human resources employee emailed the 2013 disclosures to the

affected employees. (See Evid. Code, § 1271 [permitting the admission of business

records to establish the truth of the matters contained therein].) Nor does Woodworth

challenge the declaration of Cook, who declared that she received the 2013 email and that

it was sent to all nurses eligible to vote.

Besides her evidentiary challenge to Norton’s declaration, Woodworth argues that

the medical center did not fully disclose the AWS’s effects on wages, hours, and benefits,

rendering the elections “null and void.” (Cal. Code Regs., tit. 8, § 11050, subd. 3(C)(3).)

In particular, she asserts that the medical center failed to disclose the AWS’s effect on

meal and rest periods and benefits.

Wage Order 5 requires disclosure of the AWS’s effects, but it does not require the

employer to disclose when the AWS will have no effect. Woodworth does not identify

what claimed effect the AWS had on meal and rest periods, so she fails to show any

deficiency on that issue. She claims that the disclosures falsely informed the affected

employees that they would be eligible for benefits on the same basis as all other

employees, but that argument also is meritless. Paid leave hours provide an apt example.

According to the employee handbook, employees accrued paid leave on the basis of

hours worked and paid, “up to 80 hours each pay period.” The handbook also described

the rate at which paid leave hours would accrue, which varied depending on how long the

130 employee had worked at the medical center. In other words, a formula determined paid

leave hours—the number of hours worked and paid multiplied by the accrual rate. Given

that employees on a 3/12 AWS worked only 72 hours in a two-week pay period, they

accrued fewer paid leave hours than those working 80 hours during the same period. But

that would have been true for any employee who worked fewer than 80 hours in a pay

period, regardless of whether they worked under an AWS. Woodworth points to no

evidence that the AWS changed the formula for determining paid leave hours or any

other benefit, so there was no effect to disclose.

In a similar vein, Woodworth claims that the medical center failed to disclose that

the employees were entitled to at least four hours of work per shift. That argument also

fails. She relies on the provision of Wage Order 5 stating that the AWS agreement “shall

provide for not less than four (4) hours of work in any shift.” (Cal. Code Regs., tit. 8,

§ 11050, subd. 3(B)(8)(c).) Woodworth’s AWS agreements provided for shifts of four

hours or more—they provided for shifts of 12 hours, thereby complying with that portion

of the wage order. Moreover, the disclosures informed employees that they would be

working regularly scheduled shifts of 12 hours. There was no other “effect[]” to disclose.

(Id., § 11050, subd. 3(C)(3).)

Woodworth also claims that the medical center failed to disclose when it may

require employees to work overtime. She points to the 2001 disclosure stating that the

“amount of overtime that an employee will be required to work will be subject to the

requirements of sections 3(B1)(8) and (9) of Wage Order 5-2000.” The cited wage order

is a former version of Wage Order 5. (See IWC Wage Order 5-2000, available at

131 https://www.dir.ca.gov/iwc/wageorderindustriesprior.htm.) The 2013 disclosures

referred employees to the equivalent provisions of current Wage Order 5. (Cal. Code

Regs., tit. 8, § 11050, subd. 3(B)(9)-(11).) Those provisions set forth detailed rules for

when employees who work a 12-hour shift may be required to work more than 12 hours

in any 24-hour period. 11 (Ibid.)

Woodworth contends that even though the AWS disclosures cited the relevant

provisions of the wage order, the medical center had to provide a copy of Wage Order 5.

Otherwise, she argues, the medical center failed to disclose the AWS’s effects on hours,

and the elections were null and void. We are not persuaded by that argument for two

reasons. First, the disclosures put employees on notice that special rules would govern

overtime under Wage Order 5. The employees were free to ask for a copy of the wage

order if it was not already posted in an employee area, and the medical center would have

been obligated to provide it. (Cal. Code Regs., tit. 8, § 11050, subd. 22 [requiring

employers to post the wage order except when “the location of work or other conditions

make this impractical,” in which case employers must “keep a copy of [the] order and

11 In particular, the employer may require a 12-hour employee to work up to 13 hours if the employee scheduled to relieve them does not report for duty and does not provide more than two hours’ advance notice. (Cal. Code Regs., tit. 8, § 11050, subd. 3(B)(11).) In addition, the 12-hour employee may be required to work up to 16 hours if an authorized executive declares that (1) a healthcare emergency exists, (2) the employer has taken reasonable steps to provide required staffing, and (3) “[c]onsidering overall operational status needs, continued overtime is necessary to provide required staffing.” (Id., § 11050, subd. 3(B)(9)(a)-(c).) Beyond that, the 12-hour employee must voluntarily agree to work more than 16 hours, and they may not work more than 24 consecutive hours unless they have at least eight consecutive hours off duty immediately following the 24 hours of work. (Id., § 11050, subd. 3(B)(10).)

132 make it available to every employee upon request”].) Woodworth proffered no evidence

that an employee requested the wage order and that the medical center failed to respond.

Second, the omission of Wage Order 5’s detailed rules did not qualify as a

“[f]ailure to comply” that justified nullification of the elections. (Cal. Code Regs., tit. 8,

§ 11050, subd. 3(C)(3).) We hold that an employer’s failure to comply with the pre-

election disclosure requirement renders the election null and void only if the employer

omits material information about the proposed AWS’s effects. Materiality can be

determined by the familiar prejudice standard applicable to errors of state law. (See

Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800 [error is prejudicial if “‘it is

reasonably probable that a result more favorable to the appealing party would have been

reached in the absence of the error’”].) That is, information is material if it is reasonably

probable that disclosure of the information would tend to cause more employees to vote

against the AWS.

That is not to say that employers may pick and choose which “effects . . . on the

employees’ wages, hours, and benefits” to disclose. (Cal. Code Regs., tit. 8, § 11050,

subd. 3(C)(3).) Rather, employers should attempt to comply with their disclosure

obligations in full and in good faith by disclosing all such effects. In the event of a

disclosure error, however, the reviewing court should assess the materiality of the

omission. And if there is a reasonable probability that disclosure of the information

would tend to cause more employees to vote against the AWS, the omission renders the

AWS election null and void.

133 That standard is not met here. Although we gave Woodworth the opportunity to

submit supplemental briefing on this issue (Gov. Code, § 68081; Code Civ. Proc. § 437c,

subd. (m)(2)), she articulates no way in which the relevant omission could have

prejudiced the employees. Nor does she contend that we should remand to allow her to

present evidence or conduct discovery on the issue. (Code Civ. Proc., § 437c,

subd. (m)(2).) The wage order’s rules governing work over 12 hours are favorable to

employees. They protect employees from having to work more than 12 hours except

under narrowly defined circumstances (discussed in fn. 11, ante). Consequently,

disclosure of those rules in a more explicit, detailed fashion would have persuaded an

employee to vote against the AWS only if the employee preferred that the medical center

be less constrained in requiring employees to work overtime. On this record, we see no

reasonable probability that more employees would have voted against the AWS if the

medical center had set forth those rules in detail. Indeed, if anything, disclosure of the

details would have made the AWS more likely to pass. The omission therefore was not

material. Wage Order 5 does not require employers to reproduce every potentially

applicable provision of the order in their AWS disclosures to protect against nullification

of the election by a reviewing court.

Woodworth next argues that (1) both AWS’s were invalid because the disclosures

and agreements gave the medical center the right to terminate the AWS and (2) the 2013

AWS was invalid because the employees never repealed the 2001 AWS. We also reject

those arguments. Wage Order 5 states that an AWS “may be repealed by the affected

employees,” and the order sets forth how the employees may accomplish that through a

134 petition and new secret-ballot election. (Cal. Code Regs., tit. 8, § 11050, subd. 3(C)(5).)

But nothing in the wage order states that the employees have the exclusive right to

terminate the AWS, and nothing in it states that the employer may not reserve the right to

terminate the AWS. Even if there were some authority to that effect, Woodworth cites no

authority for the further proposition that merely reserving the right to terminate the AWS

automatically voids or invalidates the election. Similarly, beyond the wage order, she

cites no authority for the proposition that the employees had to repeal an old AWS before

a newly constituted work unit could vote to adopt a new AWS. Nothing in Wage Order 5

requires a vote to repeal under those circumstances.

Woodworth also challenges the validity of both AWS’s because the medical center

failed to report the election results to the DLSE (in addition to the DLSR). She cites

section 511, subdivision (e), for the DLSE reporting requirement. That provision does

not apply here. Section 511 authorizes a secret-ballot election for AWS’s of “no longer

than 10 hours per day within a 40-hour workweek without the payment to the affected

employees of an overtime rate of compensation.” (§ 511, subd. (a).) It is true that an

employer must report the results to the DLSE if it conducted the election pursuant to

section 511. (§ 511, subd. (e) [“The results of any election conducted pursuant to this

section shall be reported by an employer to the [DLSE] within 30 days after the results

are final”].) But the medical center conducted the elections here pursuant to Wage Order

5—that is the authority permitting a 3/12 AWS in the healthcare industry. (Cal. Code

Regs., tit. 8, § 11050, subd. 3(B)(8); Singh, supra, 140 Cal.App.4th at p. 398.) Wage

Order 5 requires reporting to the DLSR, the agency to which the medical center reported

135 the results. The medical center could not have conducted the election under section 511,

which does not authorize a 3/12 AWS in which the employees waive overtime for their

12-hour shifts. (See Mitchell v. Yoplait (2004) 122 Cal.App.4th Supp. 8, 12 [§ 511 limits

the number of hours in an AWS shift to 10 per day without triggering daily overtime].)

Woodworth further argues that the AWS’s were invalid because the medical

center failed to present evidence that it executed the AWS agreements. As authority for

the argument, she cites the provisions of Wage Order 5 dealing with meal periods. In

particular, the wage order permits health care employees to waive one of their two meal

periods when they work shifts longer than eight hours. (Cal. Code Regs., tit. 8, § 11050,

subd. 11(D).) The parties must document that waiver in a written agreement signed by

both the employer and the employee. (Ibid.) On its face, that rule governing meal period

waivers does not apply to AWS agreements. Nothing in Wage Order 5 indicates that

employers must sign AWS agreements.

Lastly, Woodworth challenges the 2013 AWS on the basis of two documents that

the medical center produced in discovery—a script and a document answering frequently

asked questions. She contends that the script erroneously informed employees that they

had to vote in favor of the AWS, but she mischaracterizes the document. The script

merely explained that two-thirds of the affected employees had to vote in favor of the

AWS for it to pass—not that the employees were somehow required to cast a vote in

favor of it. The script contemplated that the AWS could fail to pass, and it informed the

employees that they would switch to eight-hour shifts if that occurred. Woodworth

further contends that the documents erroneously informed the employees that they were

136 voting to reaffirm an existing AWS. But the evidence indeed showed that the employees

were working under the existing 2001 AWS at that point. There was nothing inaccurate

about that statement.

As for the court’s ruling on the PAGA claim, the validity of the two AWS’s is a

defense to Woodworth’s overtime claim and the overtime claim of any aggrieved

employees who worked under the same AWS’s. In her opposition brief, Woodworth did

not argue that the medical center failed to carry its burden with respect to aggrieved

employees outside of her work unit. Likewise, on appeal, she does not contend that her

PAGA claim extended to aggrieved employees outside of her work unit or that the

medical center failed to produce evidence about other AWS elections. She therefore

forfeited any such argument, and the court properly granted summary adjudication for the

medical center on the PAGA overtime claim. (DiCola, supra, 158 Cal.App.4th at p. 676;

Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6.)

For the foregoing reasons, we conclude that the court did not err by granting the

medical center’s summary adjudication motion on the AWS defense. 12

12 The medical center requests that we take judicial notice of a DLSE opinion letter and documents representing legislative history of section 511. Woodworth requests that we take judicial notice of a document disseminated by the IWC in connection with Wage Order 5 and other wage orders. Additionally, amicus curiae California Hospital Association requests that we take judicial notice of various IWC documents relating to the current and former versions of Wage Order 5. We deny all of the requests for judicial notice because they are unnecessary to our resolution of this appeal. (County of San Diego v. State of California (2008) 164 Cal.App.4th 580, 613, fn. 29.)

137 VII. Motion for Summary Adjudication on the PAGA Cause of Action

The medical center moved for summary adjudication on the PAGA cause of action

for failure to exhaust administrative remedies. (The medical center labeled this motion,

“Motion for Summary Adjudication No. 2” (capitalization and boldface omitted).) After

the court’s other rulings, only the PAGA rest period claim survived. The court granted

this motion as to the rest period claim, concluding that Woodworth failed to give the

LWDA proper notice of the rest period claim. We agree with Woodworth that the court

erred as to the rest period claim. Moreover, Woodworth gave the LWDA sufficient

notice of the regular rate, wage statement, waiting time, and rounding claims under

PAGA, so those claims survive as well.

Woodworth filed her original complaint in this action on June 11, 2014. The

complaint did not include a PAGA cause of action. On June 18, 2014, she sent a letter to

the LWDA and the medical center, advising them of alleged Labor Code violations by

the medical center (the PAGA letter). As relevant here, the PAGA letter alleged as

follows:

• The medical center “failed to properly compensate its non-exempt work force the

proper amount of straight time and overtime wages as a result of, but not limited to,

its unlawful rounding policies and failure to include all required remuneration

(including but not limited to bonuses) when calculating the regular rate for

overtime purposes.”

138 • The medical center’s “rounding policy is set up such that it systematically

underpays California based non-exempt employees for all hours worked.”

• The medical center did “not provide the requisite number of rest periods for a 12

hour shift, such that only two (2) rest periods are provided to the non-exempt

hourly employees.” Further, Woodworth was “denied . . . rest periods . . . and thus

entitled to an extra hour of pay at the regular rate of pay.”

• “[E]ach non-exempt employee that is no longer employed with [the medical

center], [who] was subjected to the . . . improper regular rate calculation, was not

paid all earned wages at termination.” Similarly, Woodworth “and the aggrieved

employees were not paid all their wages at the time of termination,” so they were

“entitled to recover back wages” and waiting time “penalties under [section] 203.”

• The medical center “failed to provide accurate itemized wage statements based on

the underlying wage and hour violations.” Similarly, “the pay stubs issued by the

[medical center] did not comply with the provisions of [section] 226.”

The PAGA letter elsewhere alleged that the medical center had violated numerous Labor

Code sections, including sections 203, 226, 226.7, and 510.

Woodworth offered her counsel’s declaration to show that she attached her

original complaint to the PAGA letter. The letter stated that the complaint was attached,

and it referenced the complaint several times. For instance, at the beginning of the letter,

it stated that it was from Woodworth “on behalf of herself and all aggrieved employees

who were subject to the employer’s wage and hour policies as set forth below and in the

attached Complaint.”

139 In relevant part, the complaint alleged that the medical center “failed . . . or

refused to implement a relief system by which [Woodworth] and aggrieved employees

could receive rest breaks and/or work free rest breaks for every four hours worked, or

major fraction thereof.” It also alleged that the medical center had “failed to properly

include items of remuneration when determining the employees’ regular rate,” including

“non-discretionary bonuses paid to all eligible employees.” Additionally, the complaint

alleged that the medical center failed to provide “accurate wage and hour statements

showing gross wages earned, total hours worked, . . . net wages earned, . . . and all

applicable hourly rates in effect during each pay period.” And it alleged that the medical

center had “[r]ounded the actual time worked and recorded by” employees such that they

“were paid far less than they would have been paid had they been paid for actual recorded

time rather than ‘rounded’ time.” Finally, it alleged that the medical center had violated

sections 201, 202, 226, 226.7, and 510, among other sections, as well as a wage order

provision (Cal. Code Regs., tit. 8, § 11050, subd. 4(A)).

On June 23, 2014, Woodworth filed her first amended complaint, which added the

PAGA cause of action. The LWDA responded to Woodworth’s PAGA letter on July 21,

2014. It stated that it did not intend to investigate her allegations.

The medical center argued in its moving papers that Woodworth had failed to

exhaust her administrative remedies under PAGA. More specifically, it argued that the

PAGA letter was a string of legal conclusions without any supporting facts and theories,

and the letter therefore failed to give the LWDA and the medical center proper notice of

any of Woodworth’s claims. It additionally argued that Woodworth had brought her

140 PAGA cause of action prematurely, because she did not wait the requisite 33 days for the

LWDA to respond. The medical center contended that the court should dismiss the

PAGA cause of action in its entirety.

Woodworth opposed the motion, arguing that her PAGA letter and the attached

complaint sufficiently set forth the facts and theories underlying her PAGA cause of

action. She further contended that her prematurely filed first amended complaint did not

mandate dismissal of the PAGA cause of action, because the LWDA’s later response

cured any problem.

The court granted the medical center’s motion “as to all claims alleged in the

[PAGA cause of action] not otherwise summarily adjudicated in favor” of the medical

center—namely, the PAGA rest period claim. The court concluded that Woodworth had

two rest period theories: (1) the medical center’s written policy unlawfully required

employees to stay on premises during rest periods; and (2) the medical center failed to

provide sufficient relief personnel so that nurses who work 12-hour shifts could take a

third rest period. The court ruled that the PAGA notice and attached complaint did not

provide sufficient notice of either theory of liability.

Under PAGA, “an ‘aggrieved employee’ may bring a civil action personally and

on behalf of other current or former employees to recover civil penalties for Labor Code

violations. [Citation.] Of the civil penalties recovered, 75 percent goes to the [LWDA],

leaving the remaining 25 percent for the ‘aggrieved employees.’” (Arias v. Superior

Court (2009) 46 Cal.4th 969, 980-981 (Arias), fn. omitted.) “PAGA created a type of qui

141 tam action . . . . When an employee brings a representative action under PAGA, he or

she does so ‘as the proxy or agent of the state’s labor law enforcement agencies, not other

employees.’” (Huff v. Securitas Security Services USA, Inc. (2018) 23 Cal.App.5th 745,

753 (Huff).)

Because a PAGA action “is fundamentally a law enforcement action, a plaintiff

must first allow the appropriate state authorities to investigate the alleged Labor Code

violations.” (Huff, supra, 23 Cal.App.5th at p. 753.) Thus, PAGA requires that the

aggrieved employee “give written notice” to the LWDA and the employer “of the

specific provisions of [the Labor Code] alleged to have been violated, including the facts

and theories to support the alleged violation.” (§ 2699.3, subd. (a)(1)(A).) If the LWDA

decides not to investigate or fails to respond to the aggrieved employee’s notice within a

specified time frame, the employee may bring the PAGA action as an agent of the state.

(§ 2699.3, subd. (a)(2)(A).) When Woodworth sent the PAGA letter in 2014, PAGA

gave the LWDA 30 calendar days to notify her that it did not intend to investigate her

allegations. (Former § 2699.3, subd. (a)(2)(A), added by Stats. 2004, ch. 221, § 4.) Upon

receipt of the agency’s notice, or if the agency did not respond within 33 calendar days,

she could commence the PAGA action. (Ibid.)

“The evident purpose of the notice requirement is to afford the relevant state

agency, the [LWDA], the opportunity to decide whether to allocate scarce resources to an

investigation, a decision better made with knowledge of the allegations an aggrieved

employee is making and any basis for those allegations. Notice to the employer serves

the purpose of allowing the employer to submit a response to the agency [citation], again

142 thereby promoting an informed agency decision as to whether to allocate resources

toward an investigation.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 545-546.)

A “‘“PAGA notice must be specific enough such that the LWDA and the

defendant can glean the underlying factual basis for the alleged violations.” [Citation.]

Conversely, “a string of legal conclusions with no factual allegations or theories of

liability to support them . . . is insufficient to allow the [LWDA] to intelligently assess

the seriousness of the alleged violations.” [Citations.] Plaintiff, however, need not set

forth “every potential fact or every future theory.” [Citations.] “Under California’s

Labor Code, a written notice is sufficient so long as it contains some basic facts about the

violations, such as which provision was allegedly violated and who was allegedly

harmed.”’” (Gunther v. Alaska Airlines, Inc. (2021) 72 Cal.App.5th 334, 350 (Gunther).)

Here, the trial court erred by concluding that the PAGA letter and attached

complaint did not give sufficient notice of Woodworth’s rest period claim. The PAGA

letter identified the specific Labor Code violation at issue—a violation of section 226.7,

which prohibits requiring an employee to work through a mandated rest period and

requires the missed break premium. (§ 226.7, subds. (b), (c).) Moreover, the PAGA

letter set forth some basic facts to support Woodworth’s no-relief theory of liability. It

stated that the medical center provided only two rest periods during 12-hour shifts. The

attached complaint provided even more detail. It stated that the medical center failed to

implement a relief system so that employees could take the rest periods to which they

were entitled. The allegations of the PAGA letter and complaint were not merely legal

conclusions, and they did more than “parrot[] the allegedly violated Labor Code

143 provisions.” (Brown v. Ralphs Grocery Co. (2018) 28 Cal.App.5th 824, 837 (Brown).)

Rather, the documents alleged the factual basis for her no-relief theory of liability,

putting the LWDA and the medical center “on notice for potential investigation.”

(Gunther, supra, 72 Cal.App.5th at p. 351.)

At the same time, no facts alleged in the PAGA letter or complaint addressed

Woodworth’s alternative theory that the on-premises rest period policy was unlawful on

its face. To that extent, the court properly concluded that the PAGA letter did not comply

with the notice requirement. Still, the medical center was not entitled to summary

adjudication on the PAGA rest period claim, given that the motion did not completely

dispose of the claim. (See Rojas-Cifuentes v. Superior Court (2020) 58 Cal.App.5th

1051, 1058 (Rojas-Cifuentes) [“PAGA notice supplied sufficient ‘facts and theories’ to

support at least some of the violations” alleged, so court should have denied motion

seeking summary adjudication of entire cause of action].)

Because we conclude that the court improperly granted summary adjudication on

the PAGA regular rate, wage statement, waiting time, and rounding claims, we also

examine whether the PAGA letter and attached complaint gave sufficient notice of those

claims. We conclude that they did. (We need not address whether Woodworth gave

sufficient notice of the overtime claim because, as discussed in another part of this

opinion, that PAGA claim fails for different reasons.)

The PAGA letter identified the sections of the Labor Code that the medical center

had allegedly violated in connection with the regular rate claim—sections 226.7 and 510.

(§§ 226.7, subd. (c) [requiring the employer to pay “one additional hour of pay at the

144 employee’s regular rate of compensation” for missed rest periods], 510, subd. (a)

[requiring the employer to compensate overtime hours at one and one-half or two times

the employee’s “regular rate of pay”].) The letter also alleged that the medical center

failed to compensate employees properly by excluding bonuses when calculating the

regular rate. The complaint further alleged that the medical center excluded

nondiscretionary bonuses when determining the regular rate. Those basic facts and

theories “satisfied PAGA’s minimal notice requirements” for the regular rate claim.

We reach the same conclusion with respect to the wage statement claim. The

PAGA letter identified the specific provision of the Labor Code allegedly violated

(§ 226), and it identified the claim as a derivative one based on the underlying wage and

hour violations. The letter elsewhere explained the underlying regular rate and rest

period claims, as discussed. Moreover, the complaint alleged that the wage statements

did not accurately report gross wages earned, net wages earned, and all applicable hourly

rates in effect during the pay period. Those were the portions of the wage statements

affected by the underlying wage and hour violations alleged. The combined allegations

were sufficient to give notice of the derivative wage statement claim. (Brown, supra, 28

Cal.App.5th at pp. 837-838 [employee gave sufficient notice of alleged wage statement

violation by identifying the category of information missing from wage statements].)

The PAGA letter also gave sufficient notice of the waiting time claim. The letter

alleged that the aggrieved employees were entitled to waiting time penalties under section

203, and the complaint alleged that the medical center had violated sections 201 and 202

145 (which set forth the timelines for paying wages owed when an employee quits or is

discharged). The PAGA letter set forth some basic facts to support the alleged violations.

It alleged that the employees who were no longer employed by the medical center and

who were subjected to an improper regular rate calculation were not paid all wages

earned, entitling them to recover waiting time penalties. The allegations provided

sufficient notice of the facts and theories on which Woodworth based the waiting time

claim. (See Rojas-Cifuentes, supra, 58 Cal.App.5th at p. 1059 [PAGA notice that did not

“exhaustively explain” why wage statements were inadequate but gave “general basis”

for the claim was sufficient].)

Finally, the PAGA letter gave sufficient notice of the rounding claim. The letter

alleged that the medical center’s rounding policy systematically underpaid employees.

The attached complaint alleged that the medical center rounded the employees’ actual

time worked and paid them less than they would have received if their worktime had not

been rounded. And the letter and complaint identified the wage order provision and

statute that the rounding policy allegedly violated—subdivision 4(A) of Wage Order 5

(Cal. Code Regs., tit. 8, § 11050, subd. 4(A) [requiring employers to pay at least the

minimum wage “for all hours worked”]) and section 510 (requiring employers to pay a

premium for “[a]ny work” that constitutes overtime). Woodworth therefore gave notice

of the specific provisions allegedly violated by the rounding policy and the facts and

theories to support the alleged violation.

The medical center argues that Woodworth failed to submit admissible evidence

that she attached a copy of her complaint to the PAGA letter. The medical center points

146 out that the copy of the PAGA letter submitted as an exhibit to the TAC does not include

any attachments. The argument does not persuade us to disregard the complaint.

Woodworth’s counsel filed a declaration in support of her opposition brief; he stated that

his office had sent the PAGA letter to the LWDA and had attached the complaint. The

medical center does not explain why counsel’s declaration was inadmissible to show

what his office sent to the LWDA.

The medical center also argues that the court properly granted its motion because

Woodworth filed her PAGA cause of action prematurely. We also reject that argument.

PAGA provides that the aggrieved employee’s action “shall commence only after” the

prelawsuit requirements have been met, including the notice and waiting period

requirements. (§ 2699.3, subd. (a).) And it is true that Woodworth added the PAGA

cause of action to the first amended complaint before the LWDA had responded and

before the 33-day waiting period had expired. But we agree with her that the subsequent

response of the LWDA cured her violation. The medical center has not identified any

case law—either in the trial court or on appeal—disposing of a PAGA action because the

plaintiff filed it before the waiting period had expired or before the LWDA’s response.

Nor are we aware of any such cases. On the other hand, a number of federal district

courts in this state have concluded that a violation of the waiting period requirement was

cured by the LWDA’s subsequent response or the subsequent expiration of the waiting

period. (Magadia v. Wal-Mart Associates, Inc. (N.D.Cal. 2018) 319 F.Supp.3d 1180,

1188-1189 (Magadia); Bradescu v. Hillstone Rest. Group, Inc. (C.D.Cal. Sept. 18, 2014,

No. SACV 13-1289-GW(RZx)) 2014 U.S.Dist. Lexis 150978, at pp. *30-31; Harris v.

147 Vector Mktg. Corp. (N.D.Cal. Jan. 5, 2010, No. C-08-5198 EMC) 2010 U.S.Dist. Lexis

5659, at pp. *7-8; Hoang v. Vinh Phat Supermarket, Inc. (E.D.Cal. Aug. 12, 2013, No.

Civ. 2:13-00724 WBS GGH) 2013 U.S.Dist. Lexis 114475, at pp. *12, *20-21.) Like

those courts, we see no reason to punish Woodworth for “‘acting too quickly,’” given that

exhaustion of her administrative remedy “subsequently occurred” when the LWDA

responded. (Magadia, supra, 319 F.Supp.3d at p. 1189.)

In sum, the court erred by granting the medical center’s motion for summary

adjudication on the PAGA cause of action. Woodworth gave sufficient notice of at least

one theory of liability underlying the rest period claim. Also, her PAGA regular rate

claim, PAGA wage statement claim, PAGA waiting time claim, and PAGA rounding

claim remain viable, and she gave sufficient notice of those claims. Moreover, the

premature filing of her first amended complaint did not defeat her PAGA cause of action.

The medical center therefore was not entitled to summary adjudication on the PAGA

cause of action.

VIII. Motion to Strike the PAGA Allegations

The medical center moved to strike all of the PAGA allegations from the TAC,

arguing that the PAGA cause of action was unmanageable and could not be tried without

violating the medical center’s due process rights. At the time, there was no published

California decision addressing whether PAGA actions are subject to a manageability

requirement. The court denied the motion, reasoning that although it had discretion to

grant the motion, it would not do so “in the absence of controlling California authority

148 and conflicting [federal] district court authority.” It further ruled that the motion was

moot, in light of its other rulings disposing of the PAGA claims.

In the medical center’s cross-appeal, it argues that (1) we should impose a

manageability requirement for PAGA claims and (2) Woodworth failed to demonstrate

the PAGA cause of action was manageable. Although we grant Woodworth’s motion to

dismiss the cross-appeal, we consider the medical center’s arguments. If they are

meritorious, they would provide alternative grounds to affirm the erroneous rulings

disposing of the PAGA claims. (See part I.B. of the discussion, ante.) We conclude,

however, that the arguments lack merit.

Since the trial court’s ruling, two appellate decisions have addressed the

manageability of PAGA claims: Wesson, supra, 68 Cal.App.5th 746, and Estrada, supra,

76 Cal.App.5th 685. Wesson held that “courts have inherent authority to ensure that

PAGA claims can be fairly and efficiently tried and, if necessary, may strike claims that

cannot be rendered manageable.” (Wesson, at p. 756.) Estrada came to the opposite

conclusion. (Estrada, at p. 697.) It held that courts “cannot strike a PAGA claim based

on manageability,” but they “may still, where appropriate and within reason, limit the

amount of evidence PAGA plaintiffs may introduce at trial.” (Ibid.)

Our Supreme Court is reviewing the issue and will resolve the split. In the

meantime, we agree with Estrada. Trial courts may not strike a PAGA claim for lack of

manageability. They may limit the evidence to be presented at trial or otherwise limit the

scope of the PAGA claim, but they may not strike the claim altogether.

149 Wesson observed that courts have inherent power under the state Constitution to

control and manage litigation, as the courts have done with respect to class actions.

(Wesson, supra, 68 Cal.App.5th at pp. 763-764.) Specifically, “[i]n the class action

context, the courts have required class action proponents to demonstrate that ‘litigation of

individual issues, including those arising from affirmative defenses, can be managed

fairly and efficiently.’” (Id. at p. 764, quoting Duran, supra, 59 Cal.4th at pp. 28-29.)

The Wesson court also relied on a UCL case, which it characterized as “approv[ing] a

trial court’s use of its inherent authority to bar a representative . . . UCL claim as

unmanageable.” (Wesson, at p. 764, citing South Bay Chevrolet v. General Motors

Acceptance Corp. (1999) 72 Cal.App.4th 861 (South Bay Chevrolet).) 13 Wesson

reasoned that “[t]he same concerns attendant to the fair and efficient trial of

representative claims apply in the context of PAGA actions. . . . [Citation.] A PAGA

action may . . . cover a vast number of employees, each of whom may have markedly

different experiences relevant to the alleged violations. Under those circumstances,

determining whether the employer committed Labor Code violations with respect to each

13 The trial court in South Bay Chevrolet did not dismiss the representative UCL claim as unmanageable before trial or rely on the inherent authority to manage litigation. Rather, after a bench trial, the court granted the defendant’s motion for judgment under Code of Civil Procedure section 631.8. (South Bay Chevrolet, supra, 72 Cal.App.4th at pp. 869, 875.) The trial court determined that the plaintiff (a car dealership) “failed to meet its evidentiary burden to show that its individual claim should be afforded private attorney general status.” (Id. at p. 891.) The court based that determination on a lack of evidence that any car dealership was likely to be deceived by the defendant’s practices or that dealerships “were similarly situated as to their likelihood of deception.” (Ibid.) The appellate court held that the ruling was supported by substantial evidence, so the trial “court properly determined it could not make any determination that [the defendant] was liable statewide.” (Id. at p. 895.)

150 employee may raise practical difficulties and may prove to be unmanageable.” (Wesson,

at pp. 765-766.) The court therefore concluded “that courts have inherent authority to

ensure that PAGA claims can be fairly and efficiently tried and, if necessary, may strike a

claim that cannot be rendered manageable.” (Id. at p. 765.)

Estrada disagreed with Wesson for reasons that we find persuasive. First, our

Supreme Court held in Arias that an aggrieved employee bringing a representative PAGA

action need not satisfy class action requirements. (Arias, supra, 46 Cal.4th at p. 975;

Estrada, supra, 76 Cal.App.5th at pp. 711-712.) The high court has emphasized that a

PAGA action is a law enforcement action on behalf of the state and “is different from a

class action.” (Kim v. Reins International California, Inc. (2020) 9 Cal.5th 73, 86;

Estrada, at p. 711.) The manageability requirement in the class action context permits

courts to deny class certification, in effect dismissing the class claims from the action.

Permitting courts to strike or otherwise dismiss PAGA claims on manageability grounds

“would effectively graft a class action requirement onto PAGA claims, undermining”

Arias’s holding that PAGA plaintiffs need not satisfy class action requirements.

(Estrada, at p. 697.)

Second, permitting courts to strike or dismiss PAGA claims on the basis of

“manageability would interfere with PAGA’s express design as a law enforcement

mechanism.” (Estrada, supra, 76 Cal.App.5th at p. 712.) The Legislature enacted

PAGA to incentivize private parties to recover civil penalties on behalf of the

overburdened state agency. (Arias, supra, 46 Cal.4th at p. 986 [Legislature’s declared

purpose in enacting PAGA was “to supplement enforcement actions by public agencies,

151 which lack adequate resources to bring all such actions themselves”]; § 2699, subd. (i)

[75 percent of the penalties recovered in a PAGA action go to the LWDA, and 25 percent

go to the aggrieved employees].) The LWDA “is not subject to a manageability

requirement when it investigates Labor Code violations and assesses fines internally.”

(Estrada, at p. 712.) Allowing courts to dismiss PAGA claims for unmanageability

places a burden on PAGA plaintiffs that does not fall on the LWDA in its own

enforcement proceedings, thus undermining PAGA’s purpose and the Legislature’s

objectives. (Ibid.)

While Estrada held that trial courts may not strike or dismiss PAGA claims on the

basis of manageability, it also held that “courts are not powerless when facing unwieldy

PAGA claims.” (Estrada, supra, 76 Cal.App.5th at p. 697.) We agree with Estrada on

that point as well. “[C]ourts may, where appropriate and within reason, limit witness

testimony and other forms of evidence when determining the number of violations that

occurred and the amount of penalties to assess. [Citations.] Consequently, in cases with

individualized circumstances and vast numbers of alleged aggrieved employees, PAGA

plaintiffs may have difficulty proving purported violations suffered by other employees.”

(Id. at p. 713.) Like the court in Estrada, we encourage the parties to try to overcome any

difficulties by “work[ing] with the trial courts . . . to define a workable group or groups of

aggrieved employees for which violations can more easily be shown.” (Ibid.) For

instance, the parties could agree to limit the scope of the PAGA claim by defining the

aggrieved employees as those in a single department or at a single location. (Id. at

p. 713, fn. 8.)

152 Estrada’s approach to PAGA claims has the virtue of incentivizing the parties to

cooperate in devising a plan that works for trial. Wesson’s approach, however,

disincentivizes cooperation and instead incentivizes employers to portray PAGA claims

as hopelessly unmanageable. Ultimately, PAGA plaintiffs may prove that the employer

violated the Labor Code with respect to all of the aggrieved employees, some of them, or

none at all. (Estrada, supra, 76 Cal.App.5th at p. 713.) But even if a PAGA claim is

somewhat burdensome to try, it should “‘not mean that [the plaintiff] cannot bring it at

all.’” (Ibid.)

For all of these reasons, we conclude that trial courts may not strike or dismiss a

PAGA claim for lack of manageability. When faced with unwieldy PAGA claims, the

courts may limit the scope of the claims or the evidence to be presented at trial, but they

may not prohibit PAGA plaintiffs from presenting their claims entirely. Accordingly, the

medical center’s argument that the PAGA cause of action should have been stricken as

unmanageable does not provide an alternative ground to affirm the erroneous orders

terminating the PAGA claims.

153 DISPOSITION

The medical center’s motion for partial dismissal of the appeal is denied.

Woodworth’s motion to dismiss the cross-appeal is granted. The November 2018 order

granting the medical center’s motion for summary adjudication on the rounding claim is

reversed. On remand, the trial court shall enter a new order denying the motion for

summary adjudication on the rounding claim.

The March 2019 order denying Woodworth’s motion for class certification and

denying her motion to strike the putative class members’ declarations is affirmed in part

and reversed in part. To the extent that the order denied the motion to strike the putative

class members’ declarations, it is affirmed. To the extent that the order denied

certification of the stand-alone Wage Statement Class, it is reversed and the matter is

remanded for the court to reconsider the certification motion as to that class, consistent

with this opinion. The order denying the class certification motion is otherwise affirmed.

The May 2019 order granting the medical center’s motions for summary

adjudication is reversed. On remand, the trial court shall enter a new order: (1) denying

the medical center’s motion for summary adjudication no. 1 as to the PAGA regular rate

claim, the PAGA wage statement claim, Woodworth’s individual wage statement claim,

and the PAGA waiting time claim, but granting the motion as to Woodworth’s individual

regular rate and waiting time claims; (2) denying the medical center’s motion for

summary adjudication no. 2 on the PAGA cause of action; and (3) granting the medical

center’s motion for summary adjudication no. 3 on the AWS defense.

154 The parties shall bear their own costs of appeal. (Cal. Rules of Court, rule

8.278(a)(3).)

CERTIFIED FOR PARTIAL PUBLICATION

MENETREZ J.

We concur:

MILLER Acting P. J. FIELDS J.