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Avalos v. Conico Management

Avalos v. Conico Management
07:09:2007



Avalos v. Conico Management



Filed 6/26/07 Avalos v. Conico Management CA2/6



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS



California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



SECOND APPELLATE DISTRICT



DIVISION SIX



RAFAELA AVALOS,



Plaintiff and Appellant,



v.



CONICO MANAGEMENT et al.,



Defendants and Respondents.



2d Civil No. B192736



(Super. Ct. No. 01171356)



(Santa Barbara County)



Appellant Rafaela Avalos brought claims against her employer, Conico Roro, Inc.; Peter Hong; and Hong Holdings, LLC, dba Conico Management (Conico), for unpaid overtime wages (Lab. Code,  1194),[1] missed meal and rest periods ( 226.7, 512), wage statement violations ( 226), willful failure to pay ( 203), and unfair business practices. (Bus. & Prof. Code,  17200 et seq.) After a bench trial, the court entered judgment for Conico on all claims except the claim for unpaid meal and rest breaks during a period when Avalos worked as a non-exempt cashier. Neither party challenges the meal and rest period award.



On her overtime claim, Avalos contends that the trial court used the wrong formula to determine whether, during her term as manager, she received the minimum salary necessary to qualify for overtime exemption. She also contends she is entitled to penalties for Conico's failure to include its address on her wage statements. We affirm the judgment because substantial evidence supports the trial court's findings that Avalos did not work any overtime hours and suffered no harm as the result of any error or omission on her wage statements.



FACTUAL AND PROCEDURAL HISTORY



Avalos was employed from 1994 to 2004 at filling stations owned by Conico. For the first five years, Avalos worked as a cashier and was paid on an hourly basis. In 1999, she was promoted to station manager. She served as station manager from July 1999 to October 2003. While she was a manager, she was paid a salary. In October 2003, Avalos was demoted to cashier, after which she again was paid on an hourly basis until her termination in 2004.



While Avalos worked as a manager, Conico considered her an exempt employee. Conico's guidelines required managers to work from 8:00 a.m. to 5:00 p.m., Monday through Friday, and four hours on Saturday. Following these guidelines, a manager would work more than 40 hours per week. Conflicting evidence was presented whether or not Avalos actually worked more than 40 hours per week as a manager, and whether she worked overtime as a cashier after her demotion. Avalos denied ever receiving the managerial guidelines. Avalos concedes that as a manager she did perform primarily managerial duties.



DISCUSSION



Overtime Wages



Employees are entitled to compensation for overtime hours under the state overtime statutes at the rate of one and one-half times the regular rate of pay, unless the employee qualifies for an exemption from that requirement. ( 510.) It is the employer's duty to affirmatively prove exemption. (Ramirez v. Yosemite Water Co., Inc. (1999) 20 Cal.4th 785, 794-795.) Overtime is any work in excess of eight hours in one workday, any work in excess of 40 hours in any one workweek, and the first eight hours worked on the seventh day of work in any one workweek. ( 510.) Substantial evidence supports this finding. Legal interpretation of statutes and regulations is subject to de novo review. (Kavanaugh v. WestSonomaCountyUnionHigh School Dist. (2003) 29 Cal.4th 911, 916.)



The trial court found that, even if Avalos were not exempt, she did not work any overtime hours. We find substantial evidence to support that finding in the record. Avalos testified that she worked extraordinarily long hours as a manager, and later as a cashier, and that she performed greater duties than any other manager. The trial court found this testimony to be incredible and inconsistent with that of numerous other managers. Supervisor Jose Cerros testified to occasions on which he visited the station during the managerial guideline hours and did not find Avalos there. Office manager Toni Kim testified that it was difficult to reach Avalos by phone at the station after 3:00 p.m. Avalos denied ever seeing the managerial guidelines that called for 44 hours per week.



We view the whole record in a light most favorable to the judgment, resolving all evidentiary conflicts and drawing all reasonable inferences in favor of the factual findings of the trial court. (DiMartino v. City of Orinda(2000) 80 Cal.App.4th 329, 336.) We may not reweigh conflicts and disputes in the evidence. We are without power to substitute our own inferences or deductions. (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 631.)



The evidence that Avalos did not work overtime was reasonable in nature, of solid value, and supported the trial court's finding. Avalos is not entitled to any unpaid overtime. Her claim for interest, costs and attorneys' fees pursuant to section 1194 fails with her overtime claim, as do her claims for willful failure to pay overtime compensation pursuant to section 203, failure to furnish accurate wage statements pursuant to section 226, and unfair business practices pursuant to Business and Professions Code section 17200.



Because Avalos did not work any overtime hours, we do not decide whether bonuses and health care benefits are included in a manager's "salary" for purposes of meeting the minimum salary required to qualify for administrative exemption from California's mandatory overtime provisions pursuant to section 515, subdivision (a). We also do not reach her argument that her overtime claim enjoys a four-year statute of limitations for unfair business practices (Bus. & Prof. Code,  17208), and is not limited by the three-year statute of limitations for unpaid wages. (Code Civ. Proc.,  338, subd. (a).)



Wage Statements



Substantial evidence supports the trial court's finding that Conico did not willfully fail to furnish Avalos with wage statements as required by section 226 and that Avalos suffered no harm as a result of any omission. Section 226 requires an employer to furnish itemized wage statements that include wages, hours, and other specific information. ( 226, subd. (a).) The statement must show the name and address of the employer. (Ibid.; Cicairos v. Summit Logistics, Inc. (2005) 133 Cal.App.4th 949, 961.) An employee "suffering injury as a result of a knowing and intentional failure by an employer" to comply with section 226 may recover penalties. ( 226, subd. (e).)



In her complaint, Avalos based her section 226 claim entirely upon failure to account for overtime. In opposition to a motion for judgment of nonsuit, her counsel argued for the first time that the wage statements incorrectly identified her employer and failed to include the employer's address. The only wage statements in evidence identify "Conico Management" in the upper left corner and provide no address. Assuming that Avalos did not waive this claim by failure to plead or prove it in her case in chief, substantial evidence supports the trial court's factual finding that the pay stubs accurately identified Avalos' employer, that there was no willful failure to comply with section 226, and that Avalos suffered no harm as a result of the omission of her employer's address.



Conico's owner, Peter Hong, explained the relationship between the Conico entities and the reason that Conico Management's name appeared on the wage statements. The court found his testimony credible. Office manager Toni Kim prepared the wage statements. Kim testified that there were no intentional omissions or misstatements. Kim testified that the check portion of the wage statement contained both the name and address of the payor. The trial court found Kim's testimony credible. Avalos did not offer credible evidence that she suffered harm as a result of any inaccuracy or omission. We must presume the court found every fact and drew every permissible inference necessary to support its judgment. We defer to its determination of credibility of the witnesses and the weight of the evidence. (Engineers & Architects Assn. v. Community Development Dept. (1994) 30 Cal.App.4th 644, 653.)



The judgment is affirmed. Costs on appeal are awarded to respondents.



NOT TO BE PUBLISHED.



COFFEE, J.



We concur:



GILBERT, P.J.



YEGAN, J.




Diana Hall, Judge



Superior Court County of Santa Barbara



______________________________



James H. Cordes for Plaintiff and Appellant Rafaela Avalos.



Stone | Rosenblatt | Cha, John S. Cha and Robyn M. McKibbin for Defendants and Respondents Conico Management; Conico Roro, Inc.; Peter Hong; Hong Holdings, LLC.



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[1] All statutory references are to this code unless otherwise stated.





Description Appellant brought claims against her employer, Conico Roro, Inc.; Peter Hong; and Hong Holdings, LLC, dba Conico Management (Conico), for unpaid overtime wages (Lab. Code, 1194), missed meal and rest periods ( 226.7, 512), wage statement violations ( 226), willful failure to pay ( 203), and unfair business practices. (Bus. & Prof. Code, 17200 et seq.) After a bench trial, the court entered judgment for Conico on all claims except the claim for unpaid meal and rest breaks during a period when Avalos worked as a non-exempt cashier. Neither party challenges the meal and rest period award.
On her overtime claim, Avalos contends that the trial court used the wrong formula to determine whether, during her term as manager, she received the minimum salary necessary to qualify for overtime exemption. She also contends she is entitled to penalties for Conico's failure to include its address on her wage statements. We affirm the judgment because substantial evidence supports the trial court's findings that Avalos did not work any overtime hours and suffered no harm as the result of any error or omission on her wage statements.
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