Brookler v. Radioshack Corp. 8/26/10 CA2/7

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B212893

Case Date: 11/18/2010

Preview:Filed 8/26/10 Brookler v. Radioshack CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN

MORRY BROOKLER, Plaintiff and Appellant, v. RADIOSHACK CORPORATION, Defendant and Respondent.

B212893 (Los Angeles County Super. Ct. No. BC313383)

APPEAL from an order of the Superior Court of Los Angeles County. Edward A. Ferns, Judge. Reversed.

Law Offices of Stephen Glick and Stephen Glick; Daniels, Fine, Israel, Schonbuch & Lebovits, Paul R. Fine and Scott A. Brooks; Law Offices of Ian Herzog and Ian Herzog for Plaintiff and Appellant.

Jones Day, Robert S. Brewer Jr. and Randy S. Grossman; Niddrie, Fish & Buchanan and Michael H. Fish for Defendant and Respondent.

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SUMMARY Citing Cicairos v. Summit Logistics, Inc. (2005) 133 Cal.App.4th 949 (Cicairos), the trial court granted the plaintiffs motion for class certification of their claims against their employer for failure to provide meal periods as required under the Labor Code. The defendant employers subsequent motion for decertification was also denied. However, in July 2008, the Fourth District filed its opinion in Brinker Restaurant v. Superior Court (2008) 165 Cal.App.4th 25 (Brinker), holding meal break claims were not amenable to class treatment because the employer need only make meal breaks available, not ensure they are taken. The employer filed another motion for decertification, arguing class certification was inappropriate under Brinker. This time, the trial court granted the motion for decertification. A week later, the California Supreme Court granted review in the Brinker case (review granted Oct. 22, 2008, S166350; see also Brinkley v. Public Storage, review granted Jan. 14, 2009, S168806), to address the proper interpretation of Californias statutes and regulations applicable to an employers duty to provide meal and rest breaks to hourly workers, and the matter is still pending. Unless and until our Supreme Court holds otherwise, we agree with the analysis in Cicairos which held an employers obligation under the Labor Code and related wage orders is to do more than simply permit meal breaks in theory; it must also provide them as a practical matter. Accordingly, we reverse.

FACTUAL AND PROCEDURAL SYNOPSIS As relevant, Morry Brookler, on his own behalf and on behalf of others similarly situated, filed a complaint against Radioshack for its failure to provide employees with a meal period of not less than 30 minutes during a work period of more than five hours as required under Labor Code section 226.7, Section 11 of Industrial Welfare Commission Order No. 7, and Section 11010, paragraph 11, Title 8 of the California Code of Regulations. The trial court certified the class (and denied Radioshacks subsequent motion for decertification). Radioshack filed a second motion for decertification after 2

issuance of the opinion in Brinker, supra, 165 Cal.App.4th 25 which the trial court granted. The California Supreme Court granted review in Brinker and the matter is currently pending. Brookler appeals.

DISCUSSION "[T]he focus in a certification dispute is on what type of questions--common or individual--are likely to arise in the action, rather than on the merits of the case." (SavOn Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 327.) The question is ",,essentially a procedural one that does not ask whether an action is legall y or factually meritorious." (Id. at p. 326, citation omitted.) A trial courts ruling supported by substantial evidence generally will not be disturbed ",,unless (1) improper criteria were used [citation]; or (2) erroneous legal assumptions were made [citation] . . . ." (Id. at p. 327, citations omitted.) Here, in a detailed nine-page ruling, the trial court concluded under Cicairos, supra, 133 Cal.App.4th 949, that certification was appropriate, and later denied Radioshacks subsequent motion for decertification. Then, when Radioshack filed its second motion for decertification when Brinker was decided, the trial court determined certification was inappropriate as individual issues of whether and why meal periods were missed would predominate if, as the Brinker court concluded, the employer need only provide meal periods, but need not ensure meal periods are taken. The Legislature authorized the Industrial Welfare Commission (IWC) to establish minimum wages, maximum hours and standard conditions of employment for all employees in the state. (Collins v. Overnite Transportation Co. (2003) 105 Cal.App.4th 171, 174.) As quasi-legislative regulations, IWC wage orders are to be construed in accordance with the ordinary principles of statutory interpretation. (Id. at p. 179.) Courts should give meaning to every word of a statute if possible, and should avoid a construction making any word surplusage. (Ibid.) Statutes governing conditions of 3

employment are to be construed broadly in favor of protecting employees. (Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1103 (Murphy).) Labor Code section 226.7 provides as follows: "(a) No employer shall require any employee to work during any meal or rest period mandated by an applicable order of the Industrial Welfare Commission. (b) If an employer fails to provide an employee a meal period or rest period in accordance with an applicable order of the Industrial Welfare Commission, the employer shall pay the employee one additional hour of pay at the employees regular rate of compensation for each work day that the meal or rest period is not provided." IWC Wage Order No. 7-2001 specifies: "Every employer shall keep accurate information with respect to each employee including the following: . . . Time records showing when the employee begins and ends each work period. Meal periods, split shift intervals and total daily hours worked shall also be recorded. Meal periods during which operations cease and authorized rest periods need not be recorded." (Cal. Code Regs., tit. 8,

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