Rocha v. Lien Vu
| Decision Date | 29 October 2010 |
| Docket Number | D055300,No. GIC 869645,GIC 869645 |
| Court | California Court of Appeals Court of Appeals |
| Parties | NORA ROCHA, Plaintiff and Appellant, v. LIEN VU et al., Defendants and Respondents. |
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment and post judgment order of the Superior Court of San Diego County, Judith F. Hayes, Judge. Affirmed.
Plaintiff and appellant Nora Rocha appeals from a judgment following special verdicts in favor of her former employers, defendants and respondents Lien Vu and the Sterling One Family Limited Partnership (collectively Vu), and from a post judgment order denying Rocha a new trial. The jury reached verdicts in Vu's favor on Rocha's causes of action for failure to pay overtime and minimum wages as well as wages upon her discharge. The trial court thereafter ruled in favor of Vu on Rocha's unfaircompetition cause of action in which Rocha sought to enjoin Vu's Labor Code violations, finding Vu had ceased any unlawful employment activities.
On appeal, Rocha contends the trial court made numerous prejudicial errors before and during trial, including by permitting Vu to amend a discovery admission concerning the existence of a voluntary written agreement to credit Rocha's rent toward her minimum wage; allowing Vu to amend her answer to plead an offset defense; admitting or excluding evidence and other matters in limine; denying her motion to strike the testimony of Vu's expert; granting nonsuit on her cause of action for failure to provide accurate itemized wage statements; and allowing certain defense instructions but omitting some of her requested jury instructions. Rocha further contends there were irregularities in the proceedings, including trial court misconduct and bias, the cumulative effect of which deprived her of a fair trial. Finally, Rocha contends the jury awarded her insufficient damages.
Though the court erred by granting a directed verdict and also by treating one of Vu's in limine motions as one for summary adjudication of an entire cause of action, we nevertheless affirm the judgment. Both claims that were the subject of those motions are derivative of proof of valid wage violations. As we shall explain, the jury's defense verdicts are amply supported by all of the evidence, including evidence of the permissible credit for Rocha's apartment towards minimum wage and the hours worked by Rocha's replacements, the admission of which Rocha has not shown was an obvious abuse of discretion. We reject Rocha's other claims of evidentiary and instructional error, misconduct and trial court bias.
From July 24, 2003, to January 18, 2005, Rocha worked for Vu as a resident apartment manager of the Sterling Court apartment complex (Sterling) and supervised other apartment buildings owned by Vu. Rocha had worked as the resident manager for Sterling's prior owner. When Vu hired Rocha she asked how the prior owner had compensated her; Rocha told Vu she had received free rent and at times a bonus. Vu agreed to continue Rocha's free rent, and Rocha handwrote "resident manager free rent" onto her rental agreement. During the time Rocha worked for Vu, Vu never gave Rocha written itemized wage statements (Labor Code, 1 § 226) or required her to document her hours. Vu was unaware of her legal obligation to provide an itemized statement with specific information. In 2003, Vu began using a payroll service in part to comply with workers compensation requirements, and provided Rocha with required tax forms. In July 2003, Rocha began paying Vu $350 a month in discounted rent but Vu allowed her to keep all of the monthly laundry room money, which Vu considered part of Rocha's compensation.
Vu terminated Rocha's employment on January 18, 2005. That month, Rocha collected $380 in laundry room money and paid Vu $350 in rent from those proceeds.
In July 2006, Rocha sued Vu and thereafter filed a first amended complaint containing causes of action for wrongful discharge in violation of public policy, breach of the implied covenant of good faith and fair dealing, failure to pay state and federal overtime wages (§§ 510, 1194; 29 U.S.C. § 206), failure to pay state and federal minimum wage (§ 1197; 29 U.S.C. § 207), failure to pay wages upon discharge (§§ 200, 201, 202), failure to provide accurate itemized wage statements (§ 226), and unfair competition (UCL; Bus. & Prof. Code, § 17200 et seq.). By the latter cause of action, Rocha sought injunctive relief to force Vu to stop her illegal pay practices. Rocha also sought fees, costs and penalties under section 2699 of the Private Attorneys General Act of 2004 (PAGA) (§ 2698 et seq.), alleging that on July 13, 2006, she had sent certified mail written notice to Vu and the Labor and Workforce Development Agency (LWDA) of Vu's Labor Code violations and that the LWDA had declined to investigate the matter. Vu answered the first amended complaint in September 2006.
The matter was set for a jury trial. In February 2008, Vu obtained new counsel who sought to continue the trial date and reopen discovery to take the deposition of Rocha's expert. The court set a new trial date, but on Rocha's counsel's objection it denied Vu's request to reopen discovery. The matter proceeded to trial without expert discovery or depositions.
Before trial, the court made rulings in Vu's favor on several evidentiary motions and requests, including Rocha's motion to exclude so-called "bad act" evidence of alleged overcharging for maintenance and stealing of electricity, Vu's in limine motion to dismiss Rocha's section 2699 cause of action, and Vu's request — originally raised in oppositionto Rocha's in limine motion to preclude evidence of any rent credit — to amend Vu's discovery admission that she and Rocha did not have a written agreement to credit rent toward Vu's requirement to pay minimum wage.2 Vu was thus permitted to amend her response to deny the admission based on the handwritten notation, "resident manager free rent" in Rocha's rental agreement.
Based on the court's evidentiary rulings and seeking to prevent the jury from hearing evidence on Vu's good faith in terminating her and Rocha's purported wrongdoing, Rocha then dismissed without prejudice her causes of action for wrongful termination and breach of the covenant of good faith and fair dealing. The trial court, however, declined to change its prior evidentiary rulings, explaining that most of them "related to compensation received by [Rocha] either in terms of storage spaces... or in the form of electricity that was obtained" which had "value... and... relevance to wage and hour claims." The court ruled, however, that counsel had a right to assert evidentiary objections as testimony was elicited.
At trial, Rocha testified she initially began her employment with Vu as the manager of the 18-unit Sterling Court apartments but her duties increased over the years to supervise other apartment buildings having respectively 10, 16 and 23 units. According to Rocha, at Sterling she cleaned the building common areas and grounds, parking lot and trash areas; answered calls from prospective tenants and checked formessages on an answering machine; kept the units free of drugs and gang members; took reports from tenants concerning problems and wrote maintenance work orders for Vu's approval; coordinated with vendors for repairs at the property; collected the first month of rent and other rent receipts; trained new tenants how to make rent deposits and monitored rent payments; prepared and served three-day notices to quit and collected late fees; and faxed related documents to Vu. Rocha also filled out form lease agreements for new tenants, prepared certain move-in forms, inspected the units and took pictures to send to Vu so she could see their move-in condition. About midway during her employment with Vu, Rocha started working for two different apartment owners, David Bui, who was a friend of Vu's and Dat Vu, Lien Vu's nephew.
During Rocha's employment and at Rocha's recommendation, Rocha's then husband, Pedro Valenzuela, was Vu's primary handyman or maintenance person for her properties. With regard to maintenance, Rocha explained she would write in the details of complaints, ask Valenzuela what she should charge for the job, send the order to Vu and communicate Vu's approval to Valenzuela. Valenzuela performed the maintenance. When the work was complete, Rocha faxed Vu a status report and sent her receipts. Vu paid once a month for labor and materials regardless of the number of work orders, and included in her payments compensation for both Rocha and Valenzuela. Vu instructed Rocha that all of the tenants' questions and maintenance "should have a 24-hour response" and, accordingly, Rocha would pass on the information to Vu as soon as she got the information, even if it was "late...." Rocha estimated handling 140 or 150 work orders in 2004. She was not reimbursed for her travel expenses. Rocha admitted that herresident manager duties did not include the time spent obtaining the maintenance cost and labor estimates and writing those estimates for Vu.
Rocha testified that between July 2003 and July 2004 she worked 12 hours each weekday and 10 hours "or more" on weekends. She testified she worked 12 hours each day during the first week of the month. Rocha stated she worked at least 40 hours a week between July 2004 and November 2004, and at least 15 to 20 hours each week from November 2004 to her termination. Rocha explained that the 12-hour days were broken up by personal matters such as taking her daughters to school, cooking, and other personal breaks. She admitted that during 200...
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