California Court of Appeals, Fourth District, Third Division
[REVIEW GRANTED BY CAL. SUPREME COURT]
Appeal from a judgment and an order of the Superior Court of Orange County, No. 30-2008-00096591 Nancy Wieben Stock, Judge.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Law Offices of Mark Yablonovich, Mark Yablonovich, Patrick Clifford, Neda Roshanian and Joseph Hoff for Plaintiffs and Appellants.
Sheppard, Mullin, Richter & Hampton, Richard J. Simmons, Derek R. Havel and Daniel J. McQueen for Defendant and Respondent.
Seyfarth Shaw, Jeffrey A. Berman, James M. Harris and Kiran A. Seldon for California Hospital Association as Amicus Curiae on behalf of Defendant and Respondent.
Three health care workers sued their hospital employer in this putative class and private attorney general enforcement action for alleged Labor Code violations and related claims. In this appeal, their primary complaint is a hospital policy illegally let health care employees waive their second meal periods on shifts longer than 12 hours.
A statute requires two meal periods for shifts longer than 12 hours. But an order of the Industrial Welfare Commission (IWC) authorizes employees in the health care industry to waive one of those two required meal periods on shifts longer than 8 hours. The principal issue before us concerns the validity of the IWC order.
We conclude the IWC order is partially invalid to the extent it authorizes second meal break waivers on shifts longer than 12 hours. However, with one exception, the retroactive application of our conclusion must be litigated on remand. We also determine the court incorrectly granted summary judgment and denied class certification.
FACTS AND PROCEDURAL HISTORY
Plaintiffs and appellants Jazmina Gerard, Kristiane McElroy, and Jeffery Carl are health care workers who were formerly employed by defendant and respondent Orange Coast Memorial Medical Center (hospital). Gerard, McElroy, and Carl allege they usually worked 12-hour shifts, but from time to time worked shifts longer than 12 hours.
A hospital policy allowed health care employees who worked shifts longer than 10 hours caring for patients to voluntarily waive one of their two meal periods, even if their shifts lasted more than 12 hours. Plaintiffs allege they all signed second meal period waivers, and occasionally worked shifts longer than 12 hours without being provided a second meal period.
Plaintiff’s third amended complaint alleged second meal period waiver and other Labor Code violations, and sought statutory penalties, unpaid wages, and injunctive relief. Gerard alleged claims on her own behalf, and on behalf of others as an “aggrieved employee” under Labor Code the Private Attorneys General Act of 2004 (Lab. Code, § 2698 et seq.; PAGA). McElroy and Carl alleged claims on their own behalf, and on behalf of all other similarly situated persons, and sought class certification (Code Civ. Proc., § 382).
As relevant here, the meal period cause of action alleged:
“51. During the relevant time period, Plaintiffs and other class members who were scheduled to work for a period of time in excess of twelve (12) hours were required to work for periods longer than ten (10) hours, without a second uninterrupted meal period of not less than thirty (30) minutes. “[¶]... [¶]
“54. Defendant’s conduct violates the applicable IWC Wage Orders and California Labor Code sections 226.7 and 512[, subdivision] (a).”
Hospital answered and asserted as an affirmative defense, “Plaintiffs’ claim for an alleged failure to provide meal periods fails because Defendant utilized valid meal period waivers.”
Hospital then moved for summary judgment against Gerard on all of her individual and PAGA claims. The motion asserted in relevant part, “There is no disputed issue of material fact as to Plaintiff’s first cause of action for meal period violations because Plaintiff was provided meal periods as required by law.”
Gerard opposed the motion for summary judgment. Among other things, Gerard argued hospital’s meal period waiver policy was illegal because it directed her to waive and essentially agree she was not entitled to second meal periods on shifts longer than 12 hours, in violation of Labor Code section 512, subdivision (a).
In its reply, hospital asserted the California Supreme Court specifically rejected Gerard’s “illegal meal period waiver” argument in Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004 [139 Cal.Rptr.3d 315, 273 P.3d 513] (Brinker). Hospital also objected, on lack of authentication grounds, to certain timecards and wage statements offered by Gerard.
The court granted summary judgment against Gerard finding, among other things, “There is no disputed issue of material fact as to Plaintiff’s first cause of action for meal period violations because Plaintiff was provided meal periods as required by law.” In comments on the record, the court found Gerard’s illegal meal period waiver argument was “incorrect per Brinker.”
The court also found Gerard’s other claims were all derivative, so the failure of her individual meal period claim doomed her other claims too. Finally, the court sustained hospital’s objections to the timecards and wage statements offered by Gerard. The court entered judgment against Gerard and in favor of hospital. Gerard appealed from that judgment.
Hospital next moved to deny class certification, and to strike McElroy and Carl’s class allegations. McElroy and Carl opposed the motion, in part based
on the same illegal second meal period waiver theory asserted by Gerard in opposition to the summary judgment.
The court granted the motion, denied class certification, and struck the class allegations. The court reasoned: “One of the most basic requirements for class certification is... a prima facie claim. For, if Plaintiffs do not have a claim there can be no typicality or commonality. Here, the proposed Representative Plaintiffs have failed to show that they have any claim against Defendant.... [¶]... [¶]... [L]iability is not established by an illegal policy; liability is established by a policy that violates the Labor Code to the detriment of the employees by not providing breaks or not paying premiums.” McElroy and Carl appealed from the denial of class certification.
1. Wage Order No. 5, Section 11(D) is Partially Invalid.
Plaintiffs contend hospital’s second meal period waiver policy violates Labor Code sections 512, subdivision (a) (section 512(a)) and 516,  because section 11(D) (section 11(D)) of IWC wage order No. 5-2001 (Cal. Code Regs., tit. 8, § 11050 (Wage Order No. 5)) is invalid to the extent it allows employees to waive their second meal periods on shifts longer than 12 hours. Plaintiffs assert there is a conflict between section 512(a) and Wage Order No. 5, section 11(D), because the latter sanctions second meal period waivers for health care employees who work shifts of more than 12 hours, while the former allows such waivers only if the total hours worked is no more than 12 hours. Moreover, plaintiffs argue, the IWC exceeded its authority by ...