Thompson v. C.L. Knox, Inc.

• Decision Date: 17 July 2020
• Docket Number: F077511
• Parties: JACKIE THOMPSON et al., Plaintiffs and Appellants, v. C.L. KNOX, INC., Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

JACKIE THOMPSON et al., Plaintiffs and Appellants, v. C.L. KNOX, INC., Defendant and Respondent.

F077511

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

July 17, 2020

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. S-1500-CV-278751)

OPINION

APPEAL from a judgment of the Superior Court of Kern County. David R. Lampe, Judge.

Gaines & Gaines, Alex Paul Katofsky, Miriam Leigh Schimmel; Kabateck Brown Kellner, Kabateck, Brian S. Kabateck, and Christopher B. Noyes for Plaintiffs and Appellants.

Muzi & Associates, Andrew C. Muzi and Nida L. Henderson; Hagan Law Group and Joseph A. Werner for Defendant and Respondent.

-ooOoo- This is an appeal from an April 18, 2018 judgment of the Kern County Superior Court entered on an order granting summary judgment in favor of defendant C.L. Knox, Inc., doing business as Advanced Industrial Services ("AIS"). For the reasons set forth below, we affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

I. AIS¹

AIS is a Bakersfield-based tank cleaning and services company. Its personnel consists of approximately 110 to 120 employees, 90 percent of whom work in the field and perform the following principal activities: oil tank and vessel cleaning, hydro excavation, high pressure water blasting, industrial painting and coating, and specialty material vacuuming. On occasion, the company receives temporary employees from local temporary staffing agencies.

AIS held safety meetings at its office every Thursday until February 5, 2015, and on the first Thursday of each month thereafter.² They began at 5:15 a.m. and typically lasted between 20 minutes and an hour.

II. The class action

Three separate lawsuits were consolidated into a single class action. The operative complaint defined the class as "[a]ll individuals who (1) work or have worked for [AIS] as a non-exempt employee and all individuals who work or have worked for Continental Labor Resources, Inc. [(Continental)³] [and were] placed at [AIS] as a non-exempt employee and (2) who attended one or more safety meetings between February 25, 2009and the present." Plaintiffs Kevin Fritz, George Montoya, Jackie Thompson, Keith Aurthur, and Manuel Macias were appointed as the class representatives.⁴

In the operative complaint, plaintiffs alleged AIS violated Labor Code sections 510, 1194, 1194.2, and 1198. They specified:

"32. During the liability period, [AIS] failed to pay Plaintiffs and members of the Class all minimum wages and overtime wages. Once every week for the entire Class Period (usually Thursday mornings at 5:00 a.m.), [AIS] held a mandatory safety meeting at its Bakersfield headquarters. The base rate for these safety meetings was the minimum wage. However, [AIS] did not properly pay overtime . . . to those employees who attended safety meetings. For example, if an employee attended the safety meeting (one hour for $8) then worked for eight hours on a job site (eight hours at their regular hourly rate, typically far greater than $8), the overtime hour was paid on the safety meeting's lower $8 rate, not on the weighted average of all hours worked, as required by California law. This is a uniform companywide policy which results in substantial underpaid overtime.

"33. In addition, following the one-hour safety meetings on Thursday mornings, Class member-comprised work crews went to their [AIS]-owned crew trucks (or their own cars or trucks) and drove (or rode) to the off-site job locations, and then returned back at the end of the work day. Those who were passengers (rather than drivers) in [AIS]-owned vehicles, and those who drove themselves to the off-site locations using their personal vehicles, were never paid for the travel time to the offsite location. Plaintiffs allege that this travel time to the job site location after the mandatory safety meetings must be compensated. . . ."

Plaintiffs also alleged AIS furnished inaccurate wage statements (see Lab. Code, § 226, subds. (a), (e)); failed to promptly pay wages to former employees (see id., §§ 201-203); engaged in unfair competition (see Bus. & Prof. Code, § 17200 et seq.); and was subject to civil penalties under the Labor Code Private Attorneys General Act of 2004 (see Lab. Code, § 2699, subd. (f)).

III. The summary judgment proceeding

a. AIS's motion

On October 26, 2017, AIS filed a motion for summary judgment or, in the alternative, summary adjudication. It argued:

"AIS is entitled to judgment as a matter of law on the [claim] for [f]ailure to [p]ay [a]ll [w]ages because . . . travel time from AIS'[s] [office] to employees' job sites following Thursday morning meetings at AIS'[s] [office] was not compensable time for non-driver employees; employees did not go 'off the clock' during their drive time following Thursday morning meetings; and AIS overpaid overtime compensation to its employees."

Furthermore, AIS asserted it "is entitled to judgment in its favor on" the remaining causes of action because they " 'piggy back' off of Plaintiffs' unpaid wage claim[]," which "has no merit."

In support of its motion, AIS presented the following evidence:

i. Deposition testimony

Leslie Knox, AIS's president, was deposed on April 14, 2015. The transcript of the deposition read in part:

"Q. Now, there's mandatory training sessions that [AIS] has for its employees; correct?

"A. Mandatory training sessions?

"Q. Right. I think I heard - in the morning I heard that it was on Thursday.

"A. Those aren't training sessions.

"Q. What do you call them?

"A. Safety meetings.

"Q. Are they mandatory meetings?

"A. No.

"Q. Do employees have to attend?

"A. No.

"Q. They are voluntary?

"A. Yes.

"Q. A hundred percent?

"A. Yes. [¶] . . . [¶]

"Q. Are temporary employees required to attend the Thursday morning safety meetings?

"A. Nobody is required. I mean, they can show up, yes. [¶] . . . [¶]

"Q. Why not make those meetings mandatory?

"A. Because they don't need to be mandatory. They are every day in the field."

ii. Declarations

1. Knox

In a declaration dated October 25, 2017, Knox attested:

"7. Up until February 5, 2015, every Thursday, AIS held weekly safety meetings at its office . . . in Bakersfield. After February 5, 2015 and continuing through to the present, the meetings have been held on the first Thursday of every month. The meetings have never been mandatory. Because the meetings are not mandatory, not all employees attend them. Further, because the meetings are not mandatory, employees are not reprimanded or otherwise disciplined for not attending them. . . . The declarations of [11] employees show that the Thursday morning safety meetings are not mandatory, that not all employees attend them, that employees are not reprimanded or disciplined for not attending them, and that employees are paid continuously from the start of the meetings to the end of their workday.

"8. At the Thursday morning safety meetings, employees participate in and share their thoughts about their jobs and safety. Employees ask questions, crews are recognized, and hats and t-shirts are passed out. Even though the meetings are not mandatory and no work isperformed at them, AIS pays employees to attend. The rate that AIS pays employees to attend the non-mandatory meetings is the applicable minimum wage. [¶] . . . [¶]

"10. Nearly every week, employees work overtime hours. . . . [R]ecords show that Fritz and Macias accrued overtime hours nearly every week and that the vast majority of their overtime compensation in any given week was calculated and paid at the legal overtime rate based on their normal, regular wage rate rather than the minimum wage.

"11. Aurthur was only employed by AIS for a 12-day period. As such, AIS issued him only two paychecks and wage statements. Prior to that, all of Aurthur's paychecks and wage statements were issued by Continental . . . . Thompson was employed only by Continental . . . ; he never became an AIS employee. As such, none of his paychecks and/or wage statements were issued by AIS. . . . Montoya was only a Work Force Staffing⁵ employee, so his paychecks and wage statements came only from Work Force Staffing and not from AIS. . . .

"12. For the convenience of employees, AIS provides them the opportunity to park their cars at its office . . . and to be driven to their job sites in AIS'[s] trucks. This transportation is optional, and employees are free to travel to job sites using other transportation of their own choosing. While most employees avail themselves of this option, many do not and, instead choose to drive themselves directly to their job sites for the day. [¶] . . . [¶]

"14. Employees who ride in the trucks as passengers or who transport themselves to the job sites are generally not paid for their travel time from the [office] to job sites; however, on Thursdays, following the non-mandatory meetings, as a practical matter, they do not go 'off the clock,' i.e., they are continually on the clock from the time of the beginning of the non-mandatory meeting until the end of their workday, including during their travel time. They are therefore paid for their travel time on Thursdays."

2. Melvin Hale

In a declaration dated October 7, 2015, Hale attested:

"1. I have worked as a Driver, Safety Tech, and Project Manager at [AIS]. My statements below are within my personal knowledge and, if called as a witness, I could and would competently swear to them.

"2. I have been employed by AIS for approximately six (6) years.

"3. I am paid by AIS on an hourly basis.

"4. The Thursday Morning Safety Meetings at AIS are optional. If an employee misses a Thursday Morning Safety Meeting, nothing happens to that employee.

"5. Everyone is welcome to attend the Thursday Morning Safety Meetings. I usually try and attend the

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