Brewer v. Premier Golf Properties, Lp

• Decision Date: 03 December 2008
• Docket Number: No. D050686.,D050686.
• Citation: Brewer v. Premier Golf Properties, Lp, 168 Cal.App.4th 1243, 86 Cal. Rptr. 3d 225 (Cal. App. 2008)
• Court: California Court of Appeals
• Parties: CHRISTINE BREWER, Plaintiff and Appellant, v. PREMIER GOLF PROPERTIES, LP, Defendant and Appellant.

168 Cal.App.4th 1243

86 Cal. Rptr. 3d 225

CHRISTINE BREWER, Plaintiff and Appellant, v.PREMIER GOLF PROPERTIES, LP, Defendant and Appellant.

No. D050686.

Court of Appeals of California, Fourth District, Division One.

December 3, 2008.

CERTIFIED FOR PARTIAL PUBLICATION^*

Law Office of David B. Sharp and David B. Sharp for Plaintiff and Appellant.

Law Office of Patrick F. O'Connor and Patrick F. O'Connor for Defendant and Appellant.

OPINION

McDONALD, J.

Christine Brewer, a longtime waitress employed at the Cottonwood Golf Club restaurant, quit her job in March 2005.Shortly thereafter, Brewer filed this action against her employer, Premier Golf Properties, LP, doing business as Cottonwood Golf Club (Cottonwood) alleging a cause of action for age discrimination (Gov. Code, § 12940), and seeking compensatory and punitive damages and attorney fees.Her original complaint also alleged causes of action for "meal break" and "rest break" violations (Lab. Code, § 226.7),¹ and her first amended complaint added a fourth cause of action alleging other violations of the Labor Code.

After the first phase of the bifurcated trial, the jury's special verdict on the age discrimination claim found in favor of Cottonwood.Brewer's cross-appeal asserts the trial court erroneously excluded certain exhibits at trial and those errors were prejudicial and require a new trial on her age discrimination claim.

The other claims decided during the first phase of the bifurcated trial involved alleged Labor Code violations.The jury returned special verdicts in favor of Brewer on most of her pleaded Labor Code violations, and awarded damages totaling less than $1,000 for unpaid regular and overtime wages.The judgment also included approximately $6,000 for unpaid meal and rest break wages (§ 226.7), $4,000 as "pay stub penalties"(§ 226), and $15,300 for "minimum wage" penalties (§ 1197.1).Cottonwood's appeal asserts the expiration of the statute of limitations barred the award of some of these penalties and Brewer's failure to exhaust her administrative remedies entirely bars her recovery of penalties.

The most significant monetary award was the punitive damages award.The jury, in a special verdict that accompanied the special verdicts exonerating Cottonwood of age discrimination but finding Labor Code violations, issued a separate special verdict finding Cottonwood had acted with fraud, oppression or malice toward Brewer.A subsequent special verdict question was submitted to the jury to clarify the claim to which the malice finding applied.The jury answered that its malice conclusion was based on the Labor Code violations and not on the conduct underlying Brewer's age discrimination claim.The court then proceeded with the second phase of the trial to determine the amount of punitive damages, and the jury awarded $195,000 as punitive damages.Cottonwood's appeal raises numerous challenges to the judgment, including that punitive damages are not available for the pleaded violations of the Labor Code.²

The trial court, by a posttrial order, also awarded a portion of the attorney fees and costs sought by Brewer.On appeal, both parties challenge this order.

ICOMMON FACTUAL BACKGROUND³

Brewer, a longtime waitress at the Cottonwood Golf Course restaurant, worked the afternoon shift and was generally the only server.Her remuneration was composed of an hourly wage paid by Cottonwood and tips received from customers.

In July 2002 Cottonwood bought the golf course and related amenities.The golf course facilities were old and its patronage was declining, and Cottonwood sought to correct various management and accounting problems and to restore profitability to the business.

In December 2004 Cottonwood hired Mr. Longhauser as its food and beverage manager.He sought to change the ambience of the restaurant from a coffee shop atmosphere to a steak house atmosphere, and also opened a snackbar located on the golf course.After Cottonwood decided to change the restaurant's ambience, Brewer was offered a position at the newly created snackbar, which she accepted.However, around January 20, 2005, approximately eight days after starting at the snackbar, Brewer injured her back while performing her duties.Shortly after Brewer injured her back, Cottonwood abandoned the snackbar concept.

Brewer returned to work on February 1, 2005, and wanted to resume her former afternoon shift at the restaurant.Longhauser knew she did not want to work the morning shifts, which were less lucrative because of the nature of the clientele.However, newly hired waitresses were then working the afternoon shifts, and Longhauser therefore assigned Brewer to work the less lucrative morning shift.This shift required that she be at work at 6:30 a.m., and she was later assigned to report at 5:30 a.m.On March 8, 2005, Brewer renewed her request to be assigned to the afternoon shift, but Cottonwood denied the request because, "[b]ased on the current customer profiles, staff sales and levels of productivity," Cottonwood believed the overall profitability of the food and beverage business would be enhanced by retaining her assignment to the morning shift.A few weeks after her request for the afternoon shift was denied, Brewer resigned.Two months later, after obtaining a "right-to-sue" letter from the Department of Fair Employment and Housing, Brewer filed this lawsuit.

II

COTTONWOOD'S APPEAL: THE UNDERLYING JUDGMENT

Cottonwood raises a series of challenges to the punitive damages award and to the damages and penalties awarded under various provisions of the Labor Code.

A.The Underlying Proceedings

The Pleadings and Evidence

The factual basis for the damages and penalties awarded under the Labor Codestatutes were based on Brewer's claims that Cottonwood violated the Labor Code in two distinct areas.First, Brewer's complaint alleged she was denied the meal breaks and rest breaks mandated by section 226.7 There is substantial evidence to support the jury's finding in her favor on those claims.Brewer testified she was never provided those breaks, was never told she could take those breaks, and was specifically told she could not take those breaks.There were some days when she worked nine or 10 hours without a break.

Brewer's first amended complaint also alleged Cottonwood did not pay her the wages she earned for the hours she actually worked, and therefore (1) did not pay her wages at the required minimum wage rate, and (2) did not give her accurate itemized wage statements.There is substantial evidence to support the jury's finding in her favor on those claims.At trial, Mr. Conrad (Cottonwood's controller) conceded Cottonwood was required to pay employees for every minute of work.However, Brewer presented documentary evidence (in the form of her timesheets and spreadsheets summarizing those timesheets) demonstrating that over the course of numerous pay periods Cottonwood had underpaid Brewer, both for the regular hours she worked and for the overtime she worked.⁴Mr. Conrad conceded that, because Brewer was paid the minimum wage, if Cottonwood paid her for only a portion of the hours she actually worked on any given day, Cottonwood did not pay her the minimum wage for that day.

The Special Verdicts and Judgment

The jury found Cottonwood paid Brewer less than the minimum wage, Brewer was owed $801.32 in unpaid wages, and she had not been paid the minimum wage for a total of 62 pay periods.The jury also found Cottonwood had paid Brewer less than the legal overtime compensation, and Brewer was owed $154.78 in unpaid overtime wages.The jury found Cottonwood had not provided Brewer with meal periods on 392 occasions, had not provided Brewer with rest periods on 491 occasions, and had on 68 occasions knowingly and intentionally failed accurately to set forth the total hours she worked on her itemized wage statements.

The jury, although finding that Cottonwood's adverse job action against Brewer was not based on her age, nevertheless returned a special verdict finding Cottonwood had acted with oppression, fraud or malice.The court, after lengthy consultations with counsel, elected to submit a supplemental special verdict to the jury to clarify the factual basis on which the jury's oppression, fraud or malice finding was premised.⁵The supplemental special verdict returned by the jury stated that its malice conclusion was based on the Labor Code violations and not on the conduct underlying Brewer's age discrimination claim.

Over Cottonwood's objection, the jury then heard evidence solely related to Cottonwood's financial condition and considered the amount of punitive damages.The jury awarded $195,000.

The Judgment

The judgment, as entered by the court on February 1, 2007, based on the jury's special verdicts, incorporated the jury's awards for unpaid wages in the total amount of $956.10 and punitive damages in the amount of $195,000.The judgment also included (1) $2,646 for wages due for meal period violations and $3,314.25 for wages due for rest period violations (apparently under § 226.7); (2) $4,000 as penalties pursuant to section 226; and (3) $15,300 in penalties pursuant to section 1197.1.⁶The court also incorporated a provision entitling Brewer to recover attorney fees and costs pursuant to section 218.5 and costs pursuant to Code of Civil Procedure section 1032.

Posttrial Motions

Brewer moved for an award under section 218.5 of costs in the amount of $2,764.17 (as supplementary to those costs she claimed under Code Civ. Proc., § 1032) and attorney fees of $149,160.The court denied her requested supplemental costs and awarded attorney fees in the total amount of $64,710.

The parties filed cross-motions for JNOV or alternatively for a new trial.The court denied Brewer's motion in its entirety, and denied Cottonwood's JNOV motion.However, the court entered a conditional order on Cottonwood's new trial motion, ordering that...