Monzon v. Schaefer Ambulance Service, Inc., No. B038575

• Court: California Court of Appeals
• Writing for the Court: FRED WOODS; JOHNSON
• Citation: 273 Cal.Rptr. 615,224 Cal.App.3d 16
• Parties: , 29 Wage & Hour Cas. (BNA) 1635 Ralph MONZON, et al., Plaintiffs and Respondents, v. SCHAEFER AMBULANCE SERVICE, INC., Defendant and Appellant.
• Docket Number: No. B038575
• Decision Date: 26 September 1990

Page 615

273 Cal.Rptr. 615 224 Cal.App.3d 16, 29 Wage & Hour Cas. (BNA) 1635 Ralph MONZON, et al., Plaintiffs and Respondents,
v.
SCHAEFER AMBULANCE SERVICE, INC., Defendant and Appellant. No. B038575. Court of Appeal, Second District, Division 7, California. Sept. 26, 1990.

Page 617

[224 Cal.App.3d 22] Bronson, Bronson & McKinnon, San Francisco; Bien, Summers & Dale; Elliot L. Bien, Corte Madera, and Robert W. Tollen, San Francisco, for defendant and appellant.

The California Ass'n of Hospitals and Health Systems, et al., Musick, Peeler & Garrett, Richard J. Simmons, and Kelly L. Hensley, Los Angeles, California Ambulance Ass'n, Bronson, Bronson & McKinnon and Robert W. Tollen, San Francisco, California Farm Bureau Federation, Nancy N. McDonough and Carl G. Borden, Sacramento, as amicus curiae on behalf of defendant and appellant.

Gerald Gress, Santa Ana, for plaintiffs and respondents.

Division of Labor Standards Enforcement and H. Thomas Cadell, Jr., as amicus curiae on behalf of defendant and appellant and on behalf of plaintiffs and respondents.

FRED WOODS, Associate Justice.

The major issue raised by this appeal relates to the proper method to use in calculating overtime. We hold that the proper method to use in calculating overtime is one in which the employer must identify at week's end all hours worked by an employee during that workweek and pay overtime based upon the excess of total hours over the greater of either: (1) 8 hours in a workday, including double time, or (2) 40 hours in a workweek.

We further hold that it is permissible for an employer and ambulance drivers and attendants to enter into an agreement, which need not be in writing, to exclude up to 8 hours of sleep time from compensable time on 24 hour shifts if certain conditions, hereafter discussed, are met.

FACTUAL AND PROCEDURAL SYNOPSIS

1. Procedural Background

On April 19, 1983, respondents filed their complaint to recover unpaid or underpaid wages. Respondents are covered by Industrial Welfare Commission ("IWC") Order No. 9-80 ("Order 9-80"), which regulates the transportation industry. (Cal.Code Regs., tit. 8, § 11090.) The claim of each of the nine respondents begins on January 1, 1980, a date during the course of their employment, and ends with their respective termination dates.

[224 Cal.App.3d 23] The at-issue memorandum was filed on January 22, 1988. At the March 1988 trial setting conference, a trial date of April 4, 1988, was set. At appellant's request, the date was then changed to April 18. ¹

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Due to court congestion, the case was trailed to April 19 and then again to April 20. On April 20, 1988, the case was continued to July 26, 1988, because the court had to see if one of the cases in what it designated the rescue program was going to be resolved.

At the request of the presiding judge, on April 19 and 20, the parties deliberated over payroll calculations and arrived at an agreement as to the amount of unpaid wages which would be owing to respondents if they prevailed on the legal issues. The agreement, which was later stipulated to in open court, reduced the estimated time for trial from 12 to 2 days and was the basis of the judgment eventually entered.

On May 6, 1988, appellant filed a motion to dismiss pursuant to the five-year mandatory statute, i.e., Code of Civil Procedure section 583.310, on the ground that the delay from April 18 to April 20 was not due to the unavailability of a courtroom, but rather due to respondents' failure to prepare their backpay calculations. The motion was denied.

After a court trial, the court ruled that Order 9-80 section 3(G) meant that any agreed amount of time might be excluded from time worked so long as the exclusion was in writing and there was a regularly scheduled and uninterrupted sleeping period. The court found that appellant's policy regarding sleep periods did not meet the requirements of Order 9-80 section 3(G) since there was no agreement in writing and no regularly scheduled sleep periods, and therefore every hour of every shift was compensable time, with the exception of the two one-hour meal periods.

The court adopted respondents' version of the overtime rates required and imposed time and a half rates on every hour of work after the second shift in a week.

[224 Cal.App.3d 24] The court denied appellant's motion for judgment against the four respondents who had not appeared at trial and entered judgment in favor of all respondents on September 21, 1988.

Appellant's motion for a new trial was denied.

Appellant filed a timely notice of appeal.

2. Appellant's Compensation System

Respondents are nine employees who worked as ambulance drivers or attendants at appellant's station in Pomona between 1976 and 1982. Respondents had freely chosen to work on 24 hour shifts, every other day, rather than the 12 hour shifts that were also available.

The deposition testimony of each employee demonstrated that he understood that he would not be paid for 8 hours of uninterrupted sleep.

Employees worked seven 24 hour shifts in each two week period. They worked three days each week, plus every other Saturday or Sunday. Employees were on call throughout their 24 hour shift.

Shifts began at either 7:00 a.m. or 8:00 a.m. Regardless of actual duty calls, respondents received 14 hours of pay at straight time. Beyond that, time actually spent on duty calls was paid at time and a half. All hours of work were paid at time and a half once an employee had worked more than 40 hours of straight time in one week.

In determining whether an employee was entitled to any additional pay beyond the 14 guaranteed hours on each 24 hour shift, up to 2 hours were excluded from compensable time for two meal periods, assuming that meal periods were actually available on a given day. ² If a meal period was not actually available due to work responsibilities, the employees were paid time and a half.

The remaining 8 hours of each 24 hour shift were excluded from compensable time as a sleep period if there were at least 5 hours available for sleep. ³ If less than 5

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hours were available for sleep, appellant [224 Cal.App.3d 25] admitted it was required to pay for all 8 hours of the sleep period. ⁴ If there were at least 5 hours in a row available for sleep, appellant only paid for the post 7:00 p.m. hours that an employee actually worked. In case of any doubt about the exact time involved, appellant always gave the employee the benefit of the doubt and considered it working rather than sleeping time.

Employees were usually not told in advance when their sleep period began. Employees rarely received 8 hours of sleep during their shift and did not receive a minimum of 5 hours sleep most of the time.

No records were kept of actual sleep periods. Records were kept of ambulance runs that were made. The next day's dispatcher would look at the record of runs made the previous night and determine if there were any five hour gaps. If there were any five hour gaps, the employees would not be considered for sleep time pay. Employee mealtimes were not recorded on the call cards that were examined for sleeptime gaps. If employees were not out on a run, they could be performing other duties such as cleaning, stocking or paperwork, instead of sleeping.

There was conflicting evidence over the question whether respondents had ever agreed in writing to the foregoing arrangements governing meal and sleep periods. The five employees who testified at trial denied entering into a written employment agreement with appellant. Appellant's manager testified that he personally witnessed every one of the employees sign a Rules and Regulations Employment Agreement that set forth appellant's compensation system. No such agreement between any employee and appellant was produced at trial. The only agreement introduced into evidence was an Employment Agreement for 24 Hour Shifts signed by respondent Ralph Monzon in August 1982. Monzon testified that he thought the agreement he signed was a W-2 form.

CONTENTIONS

1. Since court congestion only tolls the five-year statute for plaintiffs who have diligently sought trial, this case is subject to mandatory dismissal.

2. The trial court improperly ordered payment at overtime rates for hours exceeding the daily limit and then counted those same hours toward the weekly overtime trigger of 40 hours, leading to a pyramiding of overtime hours.

[224 Cal.App.3d 26] 3. The court improperly ordered compensation for all eight hours of the sleep period every night.

4. The court erred in denying appellant's motion for judgment as to the four employees who did not appear at trial.

DISCUSSION

I. APPELLANT'S MOTION TO DISMISS WAS PROPERLY DENIED SINCE THE MATTER WAS TRAILED DUE TO COURT CONGESTION

"An action shall be brought to trial within five years after the action is commenced against the defendant." (Code Civ.Proc., § 583.310.) The five-year period is tolled when it is "impossible, impracticable, or futile" to comply therewith. (Code Civ.Proc., § 583.340, subd. (c).)

A trial court's ruling on a motion to dismiss under Code of Civil Procedure section 583.310 will be disturbed only upon a showing of a manifest abuse of discretion. (Baccus v. Superior Court (1989) 207 Cal.App.3d 1526, 1531, 255 Cal.Rptr. 781.) What is impossible, impractical or futile must be interpreted liberally, consistent with the policy favoring trial on the merits. (Id. at p. 1532, 255 Cal.Rptr. 781.)

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Citing to Goers v. Superior Court (1976) 57 Cal.App.3d 72, 129 Cal.Rptr. 29, appellant concedes that court congestion is one of the conditions that can be used to avoid mandatory dismissal, but contends that the unavailability of a courtroom should not have tolled the mandatory five-year deadline in this case because respondents had not exercised diligence in moving their case toward trial. Appellant argues that respondents were not diligent because they did not file their...