Arechiga v. Dolores Press, Inc.

• Decision Date: 27 April 2011
• Docket Number: No. B218171.,B218171.
• Citation: 11 Cal. Daily Op. Serv. 1733,192 Cal.App.4th 567,121 Cal.Rptr.3d 654,160 Lab.Cas. P 61, 115
• Court: California Court of Appeals Court of Appeals
• Parties: Carlos ARECHIGA, Plaintiff and Appellant, v. DOLORES PRESS, INC., Defendant and Respondent.

192 Cal.App.4th 567 121 Cal.Rptr.3d 654 160 Lab.Cas. P 61,115 11 Cal. Daily Op. Serv. 1733 2011 Daily Journal D.A.R. 2120 Carlos ARECHIGA, Plaintiff and Appellant, v. DOLORES PRESS, INC., Defendant and Respondent. No. B218171. Court of Appeal, Second District, Division 8. Feb. 7, 2011. Review Denied Apr. 27, 2011.

**656 Law Offices of Stephen Glick, Stephen Glick and Anthony Jenkins, Los Angeles, for Plaintiff and Appellant.

Glaser, Weil, Fink, Jacobs, Howard & Shapiro, Amman A. Khan and Elliott S. Henry, Los Angeles, for Defendant and Respondent.

RUBIN, J.

*569 Carlos Arechiga appeals from the court's judgment dismissing his complaint seeking payment of additional overtime wages from his former employer, Dolores Press, Inc. We affirm.

FACTS AND PROCEEDINGS

Appellant Carlos Arechiga began working as a janitor for respondent Dolores Press, Inc. ("Employer"), in January 2000. Arechiga and Employer orally agreed he would work eleven hours a day, six days a week, for a total of 66 hours per week. Because Arechiga was a nonexempt employee**657 under labor law, they agreed his work-schedule meant he earned 26 hours of overtime pay each week. By agreement, Employer paid Arechiga $880 a week.

In October 2003, Arechiga and Employer signed a written "Employment Separation Agreement," followed that same day by a written "Employment *570 Agreement" which they both signed. Apparently, Employer directed that they enter into a written agreement in order to institute privacy safeguards for members of a religious body affiliated with Employer. Other than adding privacy provisions, the written employment agreement did not change the terms of Arechiga's employment. The written agreement stated "Employee shall be paid a salary/wage of $880.00 "; the word "salary" was circled, which we indicate with a box, and the dollar amount was filled in by hand.

Three years later in September 2006, Employer terminated Arechiga. In November 2007, Arechiga filed a complaint alleging multiple causes of action against Employer. Except for a cause of action for unfair business practices (Bus. & Prof.Code, § 17200 et seq.), Arechiga eventually dismissed, or the court summarily adjudicated and dismissed, all of Arechiga's causes of action, leaving for trial only his unfair business practice claim.¹ Arechiga predicated that claim on his contention that Labor Code section 515 governed his employment agreement. Citing subdivision (d) of that statute, Arechiga asserted the court must find that his salary of $880 compensated him only for a regular 40-hour work-week at an imputed base pay of $22 per hour ($880 ÷ 40 hours), and did not include his regularly scheduled 26 hours of overtime. Subdivision (d) states:

"For the purpose of computing the overtime rate of compensation required to be paid to a nonexempt full-time salaried employee, the employee's regular hourly rate shall be 1/40th of the employee's weekly salary." (Lab.Code, § 515, subd. (d).)

Thus, according to Arechiga, Employer owed him for the three years at issue in the complaint overtime pay equal to 1.5 times his hourly base pay for his regularly scheduled 26 hours of weekly overtime.² ( Lab.Code, § 511 [overtime pay shall be 1.5 times base pay].) Employer disagreed. It asserted that California's "explicit mutual wage agreement" doctrine applied. Under that doctrine, an employer and employee may lawfully agree to a guaranteed fixed salary so long as the employer pays the employee for all overtime at least one and one-half times the employee's basic rate.

The court entered judgment for Employer. The court found that an explicit mutual wage agreement existed between Arechiga and Employer under which Arechiga's fixed salary of $880 lawfully compensated him for both his regular and overtime work based on a regular hourly wage of $11.14 and an hourly overtime wage of $16.71. In finding for Employer, the court rejected Arechiga's assertion that Labor Code section 515, subdivision (d), outlawed explicit mutual wage agreements. This appeal followed.

**658 *571 DISCUSSION

1. Substantial Evidence of Explicit Mutual Wage Agreement

The trial court found substantial evidence that Arechiga and Employer had entered into an explicit mutual wage agreement. (See Espinoza v. Classic Pizza, Inc. (2003) 114 Cal.App.4th 968, 974, 8 Cal.Rptr.3d 381; Ghory v. Al-Lahham (1989) 209 Cal.App.3d 1487, 1491, 257 Cal.Rptr. 924.) An explicit mutual wage agreement "requires an agreement which specifies the basic hourly rate of compensation upon which the guaranteed salary is based before the work is performed, and the employee must be paid at least one and one-half times the agreed-upon rate for hours in excess of forty." ( Ghory at p. 1491, 257 Cal.Rptr. 924.) The trial court explained in its statement of decision:

"Under California law, when there is an explicit mutual wage agreement between the parties, even a fixed salary like the one [Arechiga] received serves to adequately compensate him for both overtime and regular pay.... In order to establish an explicit, mutual wage agreement, [Employer] was required to show that the parties entered into an agreement that specified (1) the days that [Arechiga] would work each week; (2) the number of hours [Arechiga] would work each day; (3) that [Arechiga] would be paid a guaranteed salary of a specific amount; (4) that [Arechiga] was told the basic hourly rate upon which his salary was based; (5) that [Arechiga] was told his salary covered both his regular and overtime hours; and (6) the agreement must have been reached before the work was performed. [Employer] has met its burden. [¶] The first three elements of the explicit, mutual wage agreement were stipulated to by the parties in their joint trial statement and read into the record as evidence. It was stipulated that an oral agreement was reached between the parties, wherein [Arechiga] would work Monday through Saturday, 11 hours a day, and for these hours he would receive a guaranteed salary of $880 per week. [¶] The last three elements were overwhelmingly established through [Employer's] witnesses ... who proved that [Arechiga] was shown on a piece of paper, in January 2000, that his salary was based upon an hourly rate of $11.14, that [Arechiga] was told that his guaranteed salary covered both his regular and overtime hours, and that this agreement was reached before the work in dispute was performed."

Arechiga contends insufficient evidence existed to prove he had entered into an explicit mutual wage agreement with Employer. In pressing his contention, Arechiga ignores a fundamental rule of appellate practice obligating him to completely and fairly summarize the evidence supporting the court's findings and judgment. ( Brockey v. Moore (2003) 107 Cal.App.4th 86, 96-97, 131 Cal.Rptr.2d 746; see also Jhaveri v. Teitelbaum (2009) 176 Cal.App.4th 740, 748-749, 98 Cal.Rptr.3d 268.) For example, he asserts no evidence existed that he, as a Spanish speaker with a purportedly poor grasp *572 of English, understood the contents of a slip of paper on which his supervisor had written his hourly wage. His assertion ignores, however, evidence that he spoke English well and, in any event, the written numerals stating his hourly rate did not require translation from Spanish to English. He also asserts that he did not explicitly agree to an hourly wage of $11.14. In fact, however, Employer's witnesses testified that Arechiga's hiring supervisor told him his hourly rate was $11.14 per hour. Arechiga's co-worker testified for Employer: "Q. Did [supervisor]**659 Simms also discuss the terms of Carlos [Arechiga's] employment? [¶] A. Yes. [¶] Q. Did Mr. Simms tell you—did Mr. Simms tell Carlos how much he was going to be paid? [¶] A. Yes. [¶] Q. What did he tell Carlos he was going to be paid? [¶] A. They were going to pay him 11.14 per hour." Another supervisor testified that Arechiga's hourly wage made Arechiga "jubilant" because it more than doubled the wage he earned from his previous employer. The supervisor testified: "[H]e said he was only getting $5.00 an hour and [with Employer] he's making twice the amount. He was just ecstatic about it. And so he was just so happy. So jubilant about it." Arechiga's failure to discuss evidence supporting the court's findings and judgment excuses us from any need to address his contention of insufficient evidence, and we therefore deem the contention abandoned. ( Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881, 92 Cal.Rptr. 162, 479 P.2d 362; Ajaxo Inc. v. E*Trade Group, Inc. (2005) 135 Cal.App.4th 21, 50, 37 Cal.Rptr.3d 221; Brockey at p. 97, 131 Cal.Rptr.2d 746.) In any event, the evidence we have recited was legally sufficient to support the judgment.

2. Labor Code Section 515 Does Not Outlaw Explicit Mutual Wage Agreements

Arechiga observes that overtime laws advance important public policies that employers and employees cannot waive.³ Although parties may not waive overtime protections, the law permits an employer and employee to enter into an explicit mutual wage agreement. Under such an agreement, an employer and employee may lawfully agree before the employee starts work to pay the employee a guaranteed salary so long as the employee receives at least one and one-half times his basic rate for any hours worked beyond the statutorily defined workday of eight hours. ( Espinoza v. Classic Pizza, Inc., supra, 114 Cal.App.4th at p. 974, 8 Cal.Rptr.3d 381; Ghory v. Al-Lahham, supra, 209 Cal.App.3d at p. 1491, 257 Cal.Rptr. 924; accord Hernandez v. Mendoza (1988) 199 Cal.App.3d 721, 725-726, 245 Cal.Rptr. 36 ["Absent an explicit, mutual wage agreement, a fixed salary does not serve to compensate an employee for the number of hours worked under statutory overtime requirements."]; *573 Alcala v. Western Ag Enterprises (1986) 182 Cal.App.3d 546, 550-551, 227 Cal.Rptr. 453 ["explicit agreement" for a fixed salary can comply with overtime laws]; Brennan v. Elmer's Disposal Service, Inc. (9th Cir.1...