California Court of Appeals, Second District, Fourth Division
[256
Cal.Rptr.3d 884] APPEAL from a judgment of the Superior Court
of Los Angeles County, Ann I. Jones, Judge. Affirmed. (Los
Angeles County Super. Ct. No. BC349382 JCCP No. 4772).
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COUNSEL
Arias,
Sanguinetti, Wang & Torrijos, Mike Arias, Los Angeles,
Alfredo Torrijos, Granada Hills, and Craig Momita, Los
Angeles, for Plaintiff and Appellant.
Littler
Mendelson, Margaret H. Gillespie, Los Angeles, Philip L.
Ross, Walnut Creek, and J. Kevin Lilly, Los Angeles, for
Defendant and Respondent.
OPINION
MANELLA,
P. J.
Page 669
[256
Cal.Rptr.3d 885] INTRODUCTION
This is
another in a series of cases in which former managers of
Safeway supermarket stores sought unpaid overtime wages,
claiming they had been misclassified as exempt executives
under regulations applicable to the mercantile industry.
Following trial, a jury found respondent Safeway, Inc. had
proven that appellant William Cunningham had been an exempt
employee (and thus was not entitled to overtime pay). On
appeal, appellant asserts the
Page 670
trial court committed instructional error. In particular, he
challenges an instruction based on language in this court’s
decisions in Batze v. Safeway, Inc. (2017) 10
Cal.App.5th 440, 216 Cal.Rptr.3d 390');">216 Cal.Rptr.3d 390 (Batze ) and
Heyen v. Safeway Inc. (2013) 216 Cal.App.4th 795,
157 Cal.Rptr.3d 280');">157 Cal.Rptr.3d 280 (Heyen ), directing the jury to
classify any given task as exempt work whenever a manager
engages in it "because it is helpful in supervising
employees in the store or because it contributes to the
smooth functioning of the store ...." Appellant also
claims the court abused its discretion in admitting certain
expert testimony, arguing it was speculative.
We
clarify that a task does not become exempt merely because the
manager undertakes it in order to contribute to the smooth
functioning of the store. An instruction on the consideration
of the manager’s purpose, where appropriate, must inform the
jury of relevant limiting principles outlined in the
applicable regulations and recognized by our prior decisions.
However, we conclude the trial court’s instruction did not
affect the jury’s verdict.
Additionally, we find no abuse of discretion in the admission
of the contested expert testimony under the circumstances of
this case. We therefore affirm the judgment.
BACKGROUND
A. The Parties and This Action
Respondent
operates a national chain of supermarkets. From March 2002 to
October 2004, appellant worked at several of respondent’s
stores, serving as a First Assistant Manager (FAM) for most
of that time. In 2002, two former Safeway managers filed a
putative class action on behalf of all Safeway store managers
and assistant store managers in California, alleging failure
to pay overtime wages, among other claims. The trial court
denied class certification. (Batze, supra, 10
Cal.App.5th at pp. 445-446, 216 Cal.Rptr.3d 390');">216 Cal.Rptr.3d 390; Heyen,
supra, 216 Cal.App.4th at p. 799, 157 Cal.Rptr.3d 280');">157 Cal.Rptr.3d 280.)
Before
and after the denial of class certification, numerous former
Safeway managers, including appellant, filed complaints
seeking unpaid wages on an individual basis. Appellant’s
action proceeded to trial in 2017.
B. Evidence at Trial
Before
trial, respondent conceded appellant had worked overtime
during his employment, and the trial therefore focused on
respondent’s affirmative defense -- that appellant was
subject to the executive exemption and was not entitled to
overtime wages. (See Heyen, supra, 216 Cal.App.4th
at p. 817, 157 Cal.Rptr.3d 280');">157 Cal.Rptr.3d 280
Page 671
["Exemptions are narrowly construed and, as affirmative
defenses, must be proved by the employer"].) Because
respondent bore the burden to prove this affirmative defense,
[256 Cal.Rptr.3d 886] the parties agreed respondent would
present its case first, followed by appellant. At trial, the
main dispute was whether appellant had spent most of his work
time stocking shelves and checking (nonexempt work) as he
claimed, or performing managerial tasks such as supervising,
training, and disciplining employees, assessing store
conditions, and filling out financial reports (exempt work),
as respondent contended.
1. Respondent’s Evidence
i. Lay Testimony
George
Arias, a retired Safeway District Manager who had overseen
stores at which appellant worked, testified about the duties
of FAMs. According to Arias, when the store manager was
present, a FAM’s primary responsibilities were to ensure
checkers’ productivity and service, sufficient stocking of
products on the shelves, store cleanliness, and proper
organization of stock in the back room of the store. FAMs
were to direct subordinate hourly employees in carrying out
these tasks, not to perform them on their own. Safeway stores
could have as many as 145 employees, and FAMs would not be
able to manage store activities if they were preoccupied with
physical functions like checking or stocking. As part of
their duties, FAMs walked the aisles of their stores to
assess store conditions and respond to any issues (performing
a "store walk"), trained subordinates, scheduled
shifts based on sales projections, and filled out financial
reports.
When
the store manager was not present, a FAM was responsible for
the entire operation of the store. Based on his observations
of appellant, Arias did not think appellant spent more than
half his time engaged in physical labor. During his
testimony, Arias recounted transferring appellant to a
particular store to help prepare the store’s back room for a
"show-and-tell," a production of a model store
demonstrating how a Safeway store should operate.
Corrine Fernando, who had worked alongside appellant as a
bakery manager at one store, testified she had never seen
appellant stock shelves, though she acknowledged her view of
the store was obstructed. She explained that her department
was responsible for stocking the bread aisle, and that hourly
employees were specifically assigned to stock that aisle.
According to Fernando, appellant would usually be found in
the office. Amanda Deschner, who had worked with appellant as
a night crew head clerk at another store, described receiving
product orders from appellant. She recounted an instance in
which she disagreed with one of appellant’s order requests
and discussed it with the store manager, only to be told,
"if [appellant] asked you to do it, you
Page 672
do what he says." Deschner testified she had never seen
appellant stock shelves, though she acknowledged occasionally
seeing him checking. Finally, Jennifer Hansen, another night
crew head clerk who had worked with appellant, testified she
did not recall ever seeing appellant stock shelves or check
out customers.
ii. Banks’s Expert Testimony
Christina
Banks, an industrial organizational psychologist, testified
about the results of an observational study she had conducted
at Safeway stores. She designed this observational study to
measure how a representative sample of Safeway FAMs performed
the job. During the study, observers followed 28 randomly
selected FAMs and recorded the time they spent on every
activity. The study was conducted after appellant’s
employment with respondent had ended and did not include any
of [256 Cal.Rptr.3d 887] the stores at which he had
worked.[1]
The
study showed the observed FAMs spent an average of 72.7
percent of their worktime on "managerial"
activities, such as overseeing customer service, and only
27.3 percent of their time on "non-managerial"
activities, such as stocking shelves. Only three of the 28
observed FAMs failed to spend more than half their worktime
doing managerial work.[2] Based on these results, Banks opined
the vast majority of FAMs spent more than half their time
performing managerial work, and that it was realistic for
respondent to expect its FAMs to do so.
On
cross-examination, when asked if her study was representative
of how appellant spent his worktime, Banks explained the
study was "representative of what [FAMs] do" but
she could not "speak to what [appellant] did in his
job." She later confirmed on redirect that she was not
attempting to "predict ... what [appellant] did on any
particular day."
2. Appellant’s Evidence
Appellant testified at trial. He described his typical shift
as mostly physically stocking and rearranging products on
shelves. According to appellant, at one store, he spent 60-70
percent of his time stocking and 20 percent checking. At two
other stores, he spent 70-80 percent of his time stocking,
Page 673
checking, and cleaning. He testified he never managed anyone
in the various departments of his stores. Appellant admitted
occasionally preparing various reports, but claimed they took
very little time to complete. On cross-examination, he also
admitted conducting store walks and delegating tasks to other
employees, and confirmed he was ...