Esparza v. Safeway, Inc., B287927

CourtCalifornia Court of Appeals
Citation36 Cal.App.5th 42,247 Cal.Rptr.3d 875
Decision Date10 June 2019
Docket NumberB287927
Parties Enrique ESPARZA et al., Plaintiffs and Appellants, v. SAFEWAY, INC., et al., Defendants and Respondents.

36 Cal.App.5th 42
247 Cal.Rptr.3d 875

Enrique ESPARZA et al., Plaintiffs and Appellants,
SAFEWAY, INC., et al., Defendants and Respondents.


Court of Appeal, Second District, Division 4, California.

Filed June 10, 2019
As Modified on Denial of Rehearing June 28, 2019

Matern Law Group, Matthew J. Matern and Mikael H. Stahle, Manhattan Beach; Altshuler Berzon and James M. Finberg for Plaintiffs and Appellants.

Payne & Fears, James L. Payne, Jeffrey K. Brown and Ray E. Boggess, Irvine, for Defendants and Respondents.


36 Cal.App.5th 46


Respondents Safeway, Inc. and The Vons Companies, Inc. (collectively Safeway) formerly maintained a policy or practice of failing to pay statutorily required premium wages when, if ever, Safeway violated its duty to provide employees meal periods. Safeway's duty was not to police meal breaks to ensure that no employees skipped them, but only to free employees from obligation and control, without impeding or discouraging them from taking their breaks. ( Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1039-1041, 139 Cal.Rptr.3d 315, 273 P.3d 513.) If Safeway did unlawfully dissuade an employee from taking a meal break, the Labor Code required Safeway to pay that employee a premium wage equal to one hour's pay. ( Ibid. ; Lab. Code, § 226.7, subd. (c).)

Prior to June 17, 2007, Safeway paid no premium wages for missed meal periods, without regard to whether an employee had been impeded or discouraged from taking a meal break. Plaintiffs-appellants Enrique Esparza, Cathy Burns, Levon Thaxton II, and Sylvia Vezaldenos -- all former Safeway employees -- appeal from a judgment against them on two causes of action related to this former policy or practice. The first, brought under the unfair competition law (UCL) ( Bus. & Prof. Code, § 17200 et seq. ), sought to establish liability for the no-premium-wages policy itself. The second, brought under the Labor Code Private Attorneys General Act of 2004 (PAGA) ( Lab. Code, § 2698 et seq. ), was narrowed prior to trial: only appellant Vezaldenos sought to establish PAGA liability, and only for violations occurring before June 17, 2007, when the no-premium-wages policy was in place.

Appellants successfully sought class certification for their UCL claim. In 2015, we rejected Safeway's challenge to the class certification, noting that

36 Cal.App.5th 47

plaintiffs did "not seek the unpaid accrued meal break premium wages" -- which would have required an individualized determination whether any class member had been denied a meal break -- "but instead maintain[ed] that valuing the loss of the ‘statutory protections’ to the class [could] be determined by a ‘ "market value" approach.’ " ( Safeway, Inc. v. Superior Court (2015) 238 Cal.App.4th 1138, 1162, 190 Cal.Rptr.3d 131.) We expressly declined to examine the merits of appellants' theory of restitution or their ability to quantify it using a market value approach. ( Id. at pp. 1162-1163, 190 Cal.Rptr.3d 131.)

Following our decision, Safeway moved in the trial court for summary adjudication of the UCL claim, arguing that appellants had shown no viable theory upon which the class could obtain restitution. The trial court agreed, concluding that appellants improperly sought recovery of premium

247 Cal.Rptr.3d 880

wages without proving the classwide meal period violations necessary for the class members' interest in premium wages to vest. The court excluded the expert declaration on which appellants relied, exercising its gatekeeping duty under Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 149 Cal.Rptr.3d 614, 288 P.3d 1237.

The court also granted Safeway's motion to strike Vezaldenos's PAGA claim -- asserted for the first time in her 2009 second amended complaint -- as time-barred. Because Safeway ended its challenged practice on June 17, 2007, the court measured the applicable one-year limitations period from that date, yielding a deadline of June 17, 2008. It concluded that the statute of limitations barred Vezaldenos's claim because she waited until after that deadline to give notice to the Labor and Workforce Development Agency (LWDA), as PAGA required her to do before filing suit. The court rejected her argument that the PAGA claim related back to the April 2007 date of the original complaint. The court reasoned that the notice requirement serves the LWDA's interest in acting before information becomes stale; here, the LWDA received no notice prior to the 2007 original complaint and only untimely notice from Vezaldenos's 2008 notice letter.

Finding no error, we affirm.


A. Complaints and Class Certification

Before June 17, 2007, Safeway did not pay employees in its Vons and NorCal divisions premium wages for missed meal periods under Labor Code section 226.7 regardless of the reason for the missed meal periods. But

36 Cal.App.5th 48

beginning June 17, 2007, Safeway began to pay premium wages almost automatically for all missed, short, or late meal periods shown in reports generated by its new time-keeping system. Its older time-keeping systems also generated time punch data that could be used to determine if and when employees took or missed meal periods before June 17, 2007.

Appellants all formerly worked for Safeway as store-level hourly employees in its Vons or NorCal divisions, including before June 17, 2007. Appellant Esparza initiated this action in April 2007, bringing a cause of action under the UCL and causes of action under the Labor Code. Neither the original complaint nor a subsequently filed first amended complaint included a PAGA cause of action. On July 7, 2008, over a year after Esparza filed the original complaint, all appellants served the LWDA with a notice of Labor Code violations for which appellants planned to seek civil penalties under PAGA.1 Later that month, the LWDA sent appellants a response letter informing them the LWDA did not intend to investigate. Seven months later, on February 26, 2009, appellants filed the operative second amended complaint, adding, for the first time, a PAGA cause of action.

Appellants filed a motion to certify the following class on their UCL cause of action: "All individuals who worked as an hourly paid store level employee in Safeway Inc.'s NorCal or Vons division in California at any time on or after December 28, 2001 and before June 17, 2007." The trial court certified this class, and we denied

247 Cal.Rptr.3d 881

Safeway's writ petition challenging the certification order. ( Safeway , supra , 238 Cal.App.4th at p. 1153, 190 Cal.Rptr.3d 131.) We found that Safeway had forfeited, for purposes of writ review, challenges to the merits of appellants' restitution theory and proposed measure of restitution. ( Id. at pp. 1162-1163, 190 Cal.Rptr.3d 131.) We expressly noted, however, that Safeway remained free to challenge the merits of appellants' theory in the trial court. ( Id. at p. 1162, 190 Cal.Rptr.3d 131.)

B. Summary Adjudication of UCL Claim

Accepting our invitation, Safeway filed a motion for summary adjudication of the UCL claim. Safeway faulted appellants for failing to identify measurable amounts of money or property that Safeway took from the class members by means of its no-premium-wages policy.

In their opposition, appellants proposed to measure classwide restitution by identifying all short, missed, and late meal periods before June 17, 2007 --

36 Cal.App.5th 49

regardless of the reason each period was short, missed, or late -- and multiplying the number of those meal periods by the corresponding class members' hourly pay rates. Because the meal period premium wage is equal to an hour's pay ( Lab. Code, § 226.7, subd. (c) ), this proposed measure of restitution would effectively award premium wages for every short, missed, or late meal period reflected in Safeway's time punch data. Appellants relied on a declaration executed by economist Andrew Safir, Ph.D., who discussed neither this proposed measure nor any other. They offered no evidence to measure the class members' loss by reference to Safeway's curing its noncompliance with the statute, as they had proposed when seeking certification. ( Safeway , supra , 238 Cal.App.4th at pp. 1153, 1162, 190 Cal.Rptr.3d 131.) Moreover, as their counsel confirmed to the trial court at oral argument, appellants no longer proposed a market value approach.

The trial court granted Safeway's motion for summary adjudication of the UCL claim, reasoning that appellants "alleged no viable theory upon which [the class] could obtain restitution or injunctive relief." The court deemed appellants' proposal for restitution "invalid in theory and practice," emphasizing two problems with it.

First, the court concluded, appellants improperly sought to recover an economic sum to which the class members had no vested right. Noting...

To continue reading

Request your trial
23 cases
  • Ferra v. Loews Hollywood Hotel, LLC, B283218
    • United States
    • California Court of Appeals
    • October 9, 2019
    ...tit. 8, § 11050, subds. 11(B), 12(B) ), italics added.) This additional hour is a "premium wage." ( Esparza v. Safeway, Inc . (2019) 36 Cal.App.5th 42, 52, 247 Cal.Rptr.3d 875.) The wage orders entitle employees "to an unpaid 30-minute, duty-free meal period after working for five hours and......
  • Naranjo v. Spectrum Sec. Servs., Inc., B256232
    • United States
    • California Court of Appeals
    • September 26, 2019 payment of wages or for overtime." ( Id. at p. 1108, 56 Cal.Rptr.3d 880, 155 P.3d 284 ; see also Esparza v. Safeway, Inc. (2019) 36 Cal.App.5th 42, 52, 247 Cal.Rptr.3d 875 ; Safeway, Inc. v. Superior Court (2015) 238 Cal.App.4th 1138, 1155, 190 Cal.Rptr.3d 131 ["the employee is ‘immediat......
  • Clark v. Superior Court of San Diego Cnty., D077711
    • United States
    • California Court of Appeals
    • March 19, 2021
    ...57662 Cal.App.5th 299 "We review an order on a motion for summary adjudication de novo. [Citation.]" ( Esparza v. Safeway, Inc. (2019) 36 Cal.App.5th 42, 51, 247 Cal.Rptr.3d 875.)B. Relevant substantive law1. Statutory provisionsFEHA makes it an unlawful employment practice for an employer ......
  • Hutcheson v. Superior Court, A159861
    • United States
    • California Court of Appeals
    • February 7, 2022
    ...459 P.3d 1123.) Providing the required notice "is a mandatory precondition to bringing a PAGA claim." ( Esparza v. Safeway, Inc. (2019) 36 Cal.App.5th 42, 59, 247 Cal.Rptr.3d 875 ( Esparza ).) Finally, a PAGA action is subject to a one-year statute of limitations. ( Brown v. Ralphs Grocery ......
  • Request a trial to view additional results
1 books & journal articles
  • Witness
    • United States
    • James Publishing Practical Law Books Trial Objections
    • May 5, 2022
    ...testimony in the underlying criminal action. WITNESS §431 Trial Objections 4-110 STATE CASES CALIFORNIA Esparza v. Safeway, Inc. , 247 Cal.Rptr.3d 875, 883 (Cal. Ct. App. 2019). An expert declaration is inadmissible, including on a motion for summary adjudication, if it is (1) based on matt......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT