Clark v. Lukawski

Filed 3/27/07 Clark v. Lukawski CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Gregory Munoz, Judge. Affirmed.

Maurice Mandel II for Plaintiff and Appellant.

Songstad & Randall and Janet E. Humphrey for Defendant and Respondent.

John Clark appeals from a defense judgment in this action against Jeffrey Lukawski to recover unpaid wages. Clark argues the evidence was sufficient to establish he was not paid for all of the hours worked. We disagree and affirm.

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Lukawski hired Clark in 1999 to work at Dimension Equipment, a business engaged in the sale of tools and machinery.[1] Clark did not have a place to live at the time, so Lukawski build a loft over the office in Dimension Equipments warehouse and allowed Clark to reside there. The business was open from Monday to Friday. Clark worked a 30-hour week, from 9:00 a.m. to 3:00 p.m., but there were times when Clark woke up late or came to work late, and he was expected to make up the hours that day or another day. The pay was $8 an hour, later increased to $10 an hour. Lukawski did not keep any record of the hours Clark worked.

In May 2004, Lukawski saw Clark selling drugs on the business premises and fired him. By that time, Clark had vacated the loft and was living in a motor home parked behind the business. Lukawski allowed Clark to keep his motor home out back for another five weeks, using the business shower and internet connection, since Clark had no place to go. During the time he worked for Lukawski, Clark never complained about the pay. He did not mention extra hours or weekend work and never requested overtime pay.

This matter began when Clark filed a claim for unpaid wages with the Labor Commissioner. We do not know the date or details of the claim, since it is not in the record. In September 2005, a hearing officer awarded Clark $29,141.90, saying she found his $44,833.69 claim to be 65 percent accurate. Lukawski appealed the award and a trial de novo was held in the superior court. (Lab. Code,  98.2.)[2]

At trial, Clark testified to the hours he worked and called two witnesses to back him up (Charles McKee and Barry Kramer). We do not set out their testimony, since the trial judge found neither Clark nor his witnesses were credible, and Clark does not challenge that finding on appeal. Instead, Clark contends the evidence offered by Lukawski shows he worked overtime, and that is sufficient to compel judgment in his favor.

The evidence Clark relies on is tenuous. Lukawski testified he came in one Saturday and found Clark conducting business with a customer. But he went on to say he immediately took away Clarks key because [i]t was obvious he was stealing from the company. Lukawski said he did not pay Clark for the day he was fired, a Monday, but Clark omits Lukawskis explanation that it was because Clark did not work that day.

Lukawskis landlord recalled visiting one Saturday when Dimension Equipment was open. At one point, he testified the business hours normally . . . were probably 8:00 to 6:00. But on cross-examination by Clark, the landlord admitted he could not specifically recall either opening or closing times. James Owens worked next door to Dimension Equipment. Clark claims Owens testified the business was open on Saturdays, but that misstates the record. Owens said he did not know whether Dimension Equipment kept business hours on Saturday, but the back door probably would have been open.

Another witness, Nicholas Concepcion, was a salesman who worked at Dimension Equipment from February to May 2004. Clark claims Concepcion testified he was not paid every week, but he omits the explanation Concepcion said he only got paid when he sold something, since he worked on commission. Concepcion kept irregular hours, but generally he came in between 7:00 a.m. and 9:00 a.m. and left between 7:00 p.m. and 8:00 p.m. Concepcion testified he had been in some Saturdays but the business was not open to customers on that day, he never saw Clark working on a Saturday, and he never saw Clark working at 9:00 a.m. or after 3:00 p.m. Concepcion was confronted with his prior deposition, at which he had testified there were times when he saw Clark cleaning and repainting machinery after 3:00 p.m. Asked about the discrepancy, he said there may have been an occasion where I saw him do that, but it wasnt a normal thing.

The trial judge found [Clark] failed to carry his burden to establish by credible evidence the hours he claims to have worked. The judge did not believe Clark, his witnesses, or his documentary evidence: The two main witnesses called by Employee, including Employee himself, were convicted felons and neither was otherwise particularly credible. In addition, the calendars which were purportedly kept by Employee to record his work hours over a four-year period were highly questionable. Judgment was entered for Lukawski.

Clark argues the evidence set out above shows he worked overtime, and Lukawskis failure to maintain time records required the trial judge to award him unpaid wages. He is mistaken on both the facts and the law.

An employer is required to maintain payroll records showing the hours worked daily by and the wages paid to . . . employees . . . . These records shall be kept in accordance with rules established for this purpose by the [Industrial Welfare] commission, but in any case shall be kept on file for not less than two years. ( 1174, subd. (d).)

The Industrial Welfare Commission is charged with the continuing duty to set the minimum wage to be paid to employees within the state, and to promulgate or amend orders for this purpose, among other things. ( 1173.) Wage Order 7-2001, applicable to the mercantile industry, provides that employees who work more than eight hours a day, or more than forty hours a week, are entitled to be paid overtime at one and one half times the regular rate, and in some circumstances, twice the usual rate. (Cal. Code Regs., tit. 8,  11070, subd. (3).) The order requires an employer to keep time records for each employee showing the beginning and ending time of each work period, along with total wages paid. The employer also must provide each employee, along with his pay, an itemized statement showing all deductions and the dates for which he was paid, among other things. (Cal. Code Regs., tit. 8,  11070, subds. (7)(A)(3)-(4), 7(B).)

If an employer fails to keep the required time records, an employee may prove an overtime claim by offering credible evidence that he worked and was not paid.
[W]here the employers records are inaccurate or inadequate and the employee cannot offer convincing substitutes a . . . difficult problem arises. The solution, however, is not to penalize the employee by denying him recovery on the ground that he is unable to prove the precise extent of uncompensated work. . . . . In such a situation we hold that an employee has carried out his burden if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference. . . . . [Citations.] (Hernandez v. Mendoza (1988) 199 Cal.App.3d 721, 727.)

In this case, though, the employee did not do that. On the record provided, the trial court was completely justified in concluding Clark did not prove he had performed work and had not shown the amount and extent of that work. To prevail on a substantial evidence challenge, an appellant must lay out the evidence against him and show why it is lacking. (Foreman & Clark Corp. v Fallon (1971) 3 Cal.3d 875, 881.) Clark does not do this, instead pointing to the scant favorable evidence as proof he should have won. That is not good enough.

At most, the evidence relied upon by Clark shows Lukawski found him working one Saturday afternoon, Dimension Equipments back door may have been open on Saturdays, and a Dimension Equipment salesman said in a deposition there were times he saw Clark working after 3:00 p.m. This is at odds with Lukawskis testimony that Clark did not work overtime, several witnesses who said they had no recollection of Saturday hours, and the salesmans trial testimony that he never saw Clark at 9:00, after 3:00, or on Saturdays, and the company was not open for business on Saturdays. It was for the trial judge to decide which version of events he believed, and ample evidence supports the finding Clark did not prove either the fact or the number of overtime hours he claimed.

Clark also argues that where an employee proves the fact of overtime, and the employer has not kept required time records that would show the number of hours, the trial court still must calculate the correct amount of unpaid wages and enter judgment for the employee. But that is not the law.

The argument rests on a misreading of Hernandez v. Mendoza, supra, 199 Cal.App.3d 721. There, the employer testified his employee had worked 63 hours a week for a period of time, so the fact of overtime was undisputed. (Id. at p. 726.) The court applied the usual rule that when the fact of damage is certain, only reasonable certainty is required as to the amount. Because the employer had not maintained time records that could be used to show the number of overtime hours, the court said an employee proves a prima facie case by sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference. Then, the burden shifts to the employer to rebut the employees evidence, absent which the court may then award damages to the employee, even thought the result be only approximate. [Citations.] (Id. at p. 727.) The present case is readily distinguishable. Here, the trial court found Clark failed to prove the fact of overtime work. And there was no credible evidence of the number of overtime hours, since the trial judge did not believe Clarks testimony or documentary evidence (calendars recreated after the fact to show the purported time). So Hernandez is of no assistance to Clark.

Since the evidence supports the trial courts finding Clark failed to prove his claim for unpaid wages, the judgment for Lukawski must be affirmed. Lukawski is entitled to costs on appeal.

BEDSWORTH, J.

WE CONCUR:

SILLS, P. J.

MOORE, J.

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[1] We consider the evidence most favorable to the judgment under the rule that a judgment must be presumed correct and all inferences indulged in favor of its correctness. (In re Marriage of Arceneaux (1990) 51 Cal.3d. 1130, 1133.)

[2] All subsequent statutory references are to the Labor Code.