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Budrow v. Dave & Buster's of California

March 2, 2009

AARON BUDROW, PLAINTIFF AND APPELLANT,
v.
DAVE & BUSTER'S OF CALIFORNIA, INC., DEFENDANT AND RESPONDENT.



APPEAL from a judgment of the Superior Court of Los Angeles County, Elihu M. Berle, Judge. Affirmed. (Los Angeles County Super. Ct. No. BC 349060).

The opinion of the court was delivered by: Flier, J.

CERTIFIED FOR PUBLICATION

Appellant Aaron Budrow brought a putative class action against respondent Dave & Buster‟s of California, Inc., on the theory that distributions from the "tip pool" to persons who did not provide direct table service violated Labor Code section 351 (section 351).*fn1 After demurrers to two of appellant‟s three causes of action were sustained without leave to amend,*fn2 respondent moved for summary judgment on the remaining cause of action that alleged a violation of Business and Professions Code section 17200. The court granted the motion. We affirm.

FACTS

The facts are undisputed unless we indicate otherwise.

Respondent owns and operates restaurants throughout the United States, including six in California, and employs for that purpose persons on an hourly basis. Included among these employees are servers, cocktail servers, bussers and bartenders. Appellant was employed by respondent as a cocktail server during 2002 for at least a month; he contends that he worked for respondent for three months.

Respondent‟s tipping policy requires that servers contribute one percent of their gross sales to bartenders and other employees. It is this policy that appellant challenges on the ground that section 351 limits tip pools to persons who, according to appellant‟s theory, provide "direct" table service.

Appellant concedes that respondent does not permit any member of management to participate in, or retain any of the proceeds, of the tipping pool. (Section 351 would be violated if management collected any part of the tip pool.)

It is disputed whether bartenders serve food and drink to patrons sitting at tables. Respondent claims that they do, while appellant contends that bartenders never serve patrons at the tables in the dining area, but only at the bar.

In granting respondents‟ motion for summary judgment, the trial court found that respondent presented evidence that it did not violate section 351 and that appellant failed to show that there was a triable issue of fact on this issue.

DISCUSSION

Citing Leighton v. Old Heidelberg, Ltd. (1990) 219 Cal.App.3d 1062 (Old Heidelberg), appellant contends that controlling case law recognizes a "direct table service requirement." (Boldface omitted.) Appellant explains that the "direct table service requirement" means that tip pools are limited to those employees who directly serve the table; according to appellant, this excludes bartenders. We take up Old Heidelberg in part 2 of the opinion. We first discuss whether on its face section 351 imposes such a requirement or limitation.

1. Section 351 Does Not Distinguish Between "Direct" and "Indirect" Table Service

There are two segments of section 351 that are relevant to the inquiry whether section 351 distinguishes between "direct" and "indirect" table service. First, section 351 provides that "No employer or agent shall collect, take, or receive any gratuity or a part thereof that is paid, given to, or left for an employee by a patron." Second, section 351 also provides that "[e]very gratuity is hereby ...


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