Velazquez v. Costco Wholesale Corp., 032515 FED9, 13-55241

Docket Nº:13-55241, 13-55822
Party Name:VIRGINIA VELAZQUEZ, individually and on behalf of all others similarly situated; STEVEN BERRY, individually and on behalf of all others similarly situated; ED WHITAKER, individually and on behalf of all others similarly situated, Plaintiffs - Appellees, v. COSTCO WHOLESALE CORPORATION, Defendant-Appellant.
Judge Panel:Before: SENTELLE, CHRISTEN, and HURWITZ, Circuit Judges
Case Date:March 25, 2015
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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VIRGINIA VELAZQUEZ, individually and on behalf of all others similarly situated; STEVEN BERRY, individually and on behalf of all others similarly situated; ED WHITAKER, individually and on behalf of all others similarly situated, Plaintiffs - Appellees,

v.

COSTCO WHOLESALE CORPORATION, Defendant-Appellant.

Nos. 13-55241, 13-55822

United States Court of Appeals, Ninth Circuit

March 25, 2015

NOT FOR PUBLICATION

Argued and Submitted February 11, 2015 Pasadena, California

Appeal from the United States District Court for the Central District of California James V. Selna, District Judge, Presiding D.C. No. 8:11-cv-00508-JVS (RNBx)

Before: SENTELLE, [**] CHRISTEN, and HURWITZ, Circuit Judges.

MEMORANDUM [*]

Costco appeals the district court's judgment (1) awarding plaintiffs Virginia Velazquez and Steven Berry unpaid overtime wages as well as interest, costs, and fees under Sections 510 and 1194 of the California Labor Code and Sections 17200 through 17210 of the California Business and Professions Code, and (2) ordering Costco to pay a continuing-wages penalty under Sections 202 and 203 of the California Labor Code. Because the district court applied the correct legal standard and did not clearly err when it concluded Costco failed to prove Velazquez and Berry spent more than half of their time on managerial duties, we affirm the portion of the judgment awarding plaintiffs unpaid overtime. We reverse the portion of the district court's judgment ordering Costco to pay Berry $14, 520 in continuing wages because there is no evidence suggesting Costco willfully failed to pay Berry's unpaid overtime upon his termination.

1. The application of California overtime exemptions presents "a mixed question of law and fact." Sav-on Drug Stores, Inc. v. Super. Court, 96 P.3d 194, 202 (Cal. 2004). "How [an employee] spent his [or her] working time is a question of fact reviewed under the clearly erroneous standard." Bothell v. Phase Metrics, Inc., 299 F.3d 1120, 1124 (9th Cir. 2002). Whether those activities precluded the employee from overtime benefits "is a question of law and the court reviews the district court's decision de novo." Id.

2. The parties agreed that plaintiffs established a prima facie case for failure to pay overtime under Section 1194 of the California Labor Code. As an affirmative defense, Costco argued that it properly designated plaintiffs...

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