Cardenas v. Mission Industries, B047385

• Decision Date: 09 January 1991
• Docket Number: No. B047385,B047385
• Citation: 226 Cal.App.3d 952,277 Cal.Rptr. 247
• Court: California Court of Appeals Court of Appeals
• Parties: , 30 Wage & Hour Cas. (BNA) 236 Jovita CARDENAS, Plaintiff and Respondent, v. MISSION INDUSTRIES, Defendant and Appellant. Civ.

Page 247

277 Cal.Rptr. 247

226 Cal.App.3d 952, 30 Wage & Hour Cas. (BNA) 236

Jovita CARDENAS, Plaintiff and Respondent, v. MISSION INDUSTRIES, Defendant and Appellant.

Civ. No. B047385.

Court of Appeal, Second District, Division 6, California.

Jan. 9, 1991.

Certified for Partial Publication ^*

Mullen, McCaughey & Henzell, George L. Wittenburg and Gary W. Robinson, Santa Barbara, for defendant and appellant.

Anticouni & Anticouni and Bruce N. Anticouni, Santa Barbara, for plaintiff and respondent.

ABBE, Associate Justice. ^*

Mission Industries (Mission) appeals from the judgment after trial by court, awarding respondent, Jovita Cardenas (Cardenas), overtime pay, a waiting time penalty, interest, and attorney's fees. We affirm.

FACTS

From January 7, 1987 through April 4, 1988, Cardenas was a live-in household employee of Linda Page Katzenstein McCaughey (Page).

Page was a major stockholder, chairman of the board and a vice-president of Mission. Shortly after Cardenas began work, she told Page that she needed health benefits. Page arranged for Cardenas to have health insurance through Mission's group insurance plan by having her placed on Mission's payroll. Although Mission thereafter issued all of Cardenas' paychecks, she never actually performed any work for Mission or engaged in any activity relating to its business. Throughout her employment, Cardenas worked exclusively as a live-in household employee of Page, who then reimbursed Mission for Cardenas' salary and benefits.

Mission paid Cardenas a monthly salary, agreed upon by Page and Cardenas, which did not vary from month to month regardless of the number of hours worked. Cardenas received a salary increase on September 1, 1987.

Cardenas was scheduled to work five days a week, with Sundays and Mondays off. However, she was required to work on any Sunday or Monday that Page was out of town. When Cardenas worked a full day on her days off, Page gave her additional compensation directly by personal check. Cardenas testified that Page at first gave her $60 on such occasions and later, $100.

After her employment ended, Cardenas filed a complaint with the Labor Commissioner, alleging that she was entitled to receive overtime pay. After a hearing, the Labor Commissioner awarded her overtime wages, plus penalty and interest. Mission filed notice of appeal in the superior court, for trial de novo, pursuant to Labor Code section 98.2.

Cardenas testified that at the time of her initial interview, Page told her that her duties would include caring for Page's two children (a ten-year-old boy and an eight-year-old girl), running errands, doing the laundry, and doing the general grocery shopping for the family.

Cardenas testified in detail as to her activities and duties during her workday, which generally lasted from about 7:30 a.m. until between 9:00 p.m. and 10:00 p.m., when the children were put to bed and went to sleep. She stated that in addition to caring for the children and doing chores directly related to their care, many of her other daily duties, including grocery shopping, running errands, doing the laundry and preparing dinner, were done for the entire household, including Page's fiance when he moved into the home; and that when Page had guests, Cardenas shopped for everything needed to entertain them. She estimated that she spent between four and five hours a day doing things not exclusively related to caring for the children.

Page testified that Cardenas' duties were only to care for the children; that she did not do laundry, shop for groceries or prepare meals for the entire household or run personal errands for her; and that Cardenas had considerable free time during the workday when the children were in school.

Both Cardenas and Page testified that Page would write Cardenas a personal check for money to pay for groceries and other purchases. Cardenas stated that at first Page would give her approximately $500 whenever she told her that she needed money; subsequently she increased the amount to $700; and that she gave her $20 per week for gasoline. Page testified that she gave respondent $800 or $900 per month for groceries and "little incidentals."

Neither Cardenas nor Page maintained daily time records of the hours Cardenas worked, as required by law. Cardenas' reconstruction, to the best of her recollection, of the hours and days worked through out the term of her employment, was received into evidence.

Paul Rodriguez, a Deputy Labor Commissioner, testified that at the request of Cardenas' attorney, he had computed the amount of overtime pay that would be due her under Industrial Welfare Commission Wage Order 15-86 ¹ according to her reconstruction of the hours she worked. The court received his calculations into evidence. He testified that Cardenas was entitled to $14,695.79.

In holding that Cardenas was entitled to overtime pay, the court made findings that included the following:

1. Although Cardenas was employed by Mission for purposes of health insurance, taxes, and other payroll procedures, her employment was solely in Page's residence. Therefore, Cardenas was covered by Wage Order No. 15-86, which sets forth the terms and conditions of employment of persons hired by private householders to work in their homes.

2. The court specifically concluded that Cardenas was not a "personal attendant" as defined in the wage order, ² based on its finding that she credibly testified that she spent a number of hours each day performing housekeeping duties for the entire family and running personal errands for Page, and that such duties "amounted to a significant amount of work other than the caring for Mrs. Page's two children." Therefore, the court concluded that Cardenas was not a "personal attendant" to the two children.

3. The court found it clear from the testimony of both Page and Cardenas that Cardenas had worked more than nine hours a day and more than 45 hours in a week without receiving overtime compensation. However, the court found that Cardenas "had some time to herself each day and that her reconstruction of hours did not take into account all of the personal time that was available to her." Accordingly, the court stated that it was "reducing the hours [Cardenas] was not properly compensated for by 25%...."

The judgment included overtime pay of $11,955, a waiting time penalty of $2,296.25, interest in the amount of $1,635.93, and attorney's fees of $3,500.

DISCUSSION

I

Mission argues that the trial court erred in finding that Cardenas was not a "personal attendant," exempt from the overtime provisions of the wage order. We disagree.

Under this wage order, live-in household employees are entitled to be paid time and one-half for all hours worked in excess of nine during a twelve hour workday. ( § 3(A)(1), (2).) ³ If they are required to work more than five workdays in any workweek, they must be compensated for the first nine hours at time and one-half; time worked in excess of nine hours on the sixth and seventh workdays must be compensated at double time. ( § 3(B). None of the provisions of the order applies to personal attendants. ( § 1(B).)

Section 2(I) defines a "personal attendant" as a babysitter or "any person employed by a private householder ... to supervise, feed, or dress a child or person who by reason of advanced age, physical disability, or mental deficiency needs supervision." This section provides that "[t]he status of 'personal attendant' shall apply when no significant amount of work other than the foregoing is required."

Neither counsel nor we have found any reported cases interpreting the meaning of "personal attendant" as defined in the order. However, section 231 of the draft of the Operations and Procedures Manual, relied on by the the office of the Labor Commissioner, provides that duties of a personal attendant may normally include household work related to the care of a child or infirm person, such as cooking, making the bed or washing the clothes for that individual. The manual also directs that "[o]ther general housework may also be included if it does not constitute a 'significant' amount, that is, if it does not exceed 20 percent of the hours worked in the week."

Interpretive Bulletin 86-1, issued by the Labor Commissioner on March 12, 1986, defines "no significant amount of work other than the foregoing" in the wage order's definition of "personal attendant" to mean "not more than 20 percent of the work time," and adds that "[u]sually, such 'other' work involves housekeeping duties."

Under the "substantial evidence" standard of review, which we must apply here, "... all factual matters will be viewed most favorably to the...