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Kevin Tien et al v. Tenet Healthcare Corporation et al

February 16, 2011


APPEAL from a judgment of the Superior Court of Los Angeles County. Carl J. West, Judge. Los Angeles County Super. Ct. No. BC315897/ San Diego County Super. Ct. No. GIC813187

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



Law Offices of Joseph Antonelli, Joseph Antonelli, Janelle Carney; Law Offices of Kevin T. Barnes and Kevin T. Barnes for Plaintiff and Appellant Kevin Tien.

Kevin Tien, Carole McDonough, and Julia Strain, for themselves and as class representatives, appeal from the trial court's denial of class certification of their wage-related claims against their former employers, Tenet Healthcare Corporation, and several dozen of its subsidiaries. We affirm.


In August 2006, appellants Kevin Tien, Carole McDonough, and Julia Strain filed for themselves and as class representatives for all others similarly situated a joint consolidated amended complaint against respondent Tenet Healthcare Corporation and 37 of its subsidiaries.*fn1 Appellants were hourly employees of Tenet or one of its 37 subsidiaries (collectively Tenet), consisting of hospitals throughout California. Appellants alleged Tenet had not paid appellants and other class members legally mandated additional wages for missed meal periods and rest breaks. Appellants sought certification of four classes for which appellants alleged common questions of law and fact predominated over individual questions.

● Missed Meal Periods: Appellants alleged Tenet did not provide statutory compensation to employees who did not take their 30-minute meal period within 6 hours of starting work, or did not take a second meal period after 10 hours of work.*fn2 (Lab. Code, §§ 226.7, 512.) ● Missed Rest Breaks: Appellants alleged Tenet failed to provide a rest break for each four hours an employee worked. (Lab. Code, § 226.7.)

● Waiting Time Penalties: Appellants alleged Tenet did not pay terminated employees all the wages to which the employees were entitled upon their discharge for missed meal periods and rest breaks, and thus were obligated to pay statutory penalties. (Lab. Code, § 200 et seq.)

● Pay Stub Violations: Appellants alleged Tenet's company-wide pay stub format omitted legally required information, including an employee's hourly rates with the number of hours worked at each rate. (Lab. Code, § 226.)*fn3

1. The June 2008 Certification Order

In September 2007, appellants moved for class certification. After hearing, the trial court issued in June 2008 its certification order giving appellants most, but not all, of what they sought.

● Missed Meal Period Class Conditionally Certified: The court found that appellants' definition of membership for the missed meal period class involved predominately individual questions of each employee's eligibility for compensation for missed meals, making appellants' definition of the class overly broad and inappropriate for class treatment. The court noted that uncertain compliance by employees with Tenet's electronic time-keeping record system (Kronos) introduced individualized questions whether particular employees took their meal periods. Additionally, the court noted, some employees signed lawful waivers for meals they missed, but the class definition did not take those waivers into account. The court thus exercised its power to narrow the class definition to conditionally grant class certification of the question of the accuracy of Kronos in determining whether employees took meal periods, and to determine whether employees voluntarily signed meal period waivers.

● Certified Waiting Time Penalty Class: The court found common questions predominated as to whether Tenet had a company-wide policy of delaying payment of wages owed to discharged employees, thus justifying class treatment.

● Certified Pay Stub Violations Class: The court found Tenet's use of a corporate-wide pay stub format meant common issues predominated, thereby warranting class treatment.

● Denied Certification of Missed Rest Breaks Class: The court found individualized assessment of each employee's eligibility for compensation for missed rest breaks predominated because the class definition did not allow for Tenet's having paid statutory wage penalties to employees who missed their breaks. The court thus found class treatment was inappropriate.

Tenet moved for "clarification and/or reconsideration" of the court's certification order. Tenet asked the court, among other things, to clarify its reasoning that the accuracy of the Kronos affected whether class treatment was proper for employees who missed their meal periods. Tenet also asked the trial court to certify for interlocutory appellate review four ostensibly pure questions of law, one of which was whether an employer's obligation to "provide" a meal period to employees meant Tenet need merely offer a meal period, or must ensure employees take their meal periods. Opposing Tenet's "clarification/reconsideration" motion, appellants asserted Tenet was attempting to reargue the certification motion without offering any new information, facts, or law. The court heard Tenet's motion in July 2008, during which the court gave the parties written tentative comments stating its intention to take the motion under submission and to clarify certain portions of the June 2008 certification order.

Six days later on July 22, the Fourth District issued its decision in Brinker Restaurant Corp. v. Superior Court (2008) 165 Cal.App.4th 25, review granted October 22, 2008, S166350 (Brinker). Brinker held an employer satisfies its obligation to "provide" a meal period by making meal periods available, but need not guarantee that employees take their periods. Tenet filed with the court a memorandum discussing Brinker's effect on certification of appellants' meal period class. Tenet argued that, under Brinker, whether the Kronos was reliable was no longer material because no reasonable dispute existed that Tenet, at the very least, offered its employees the opportunity to take meal periods. Hence, whether Kronos accurately recorded the taking of meal periods was irrelevant because the law did not obligate Tenet to guarantee employees took their meals. Appellants filed a memorandum arguing the opposite. Asserting Brinker was wrongly decided, they urged the trial court need not follow Brinker because another published decision, Cicairos v. Summit Logistics, Inc. (2005) 133 ...

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