Opinion
F060209 Super. Ct. No. 07CECG04060
02-17-2012
JOSE GALLEGOS et al., Plaintiffs and Respondents, v. NCRC, INC., Defendant and Appellant.
Keegan and Baker, Jason E. Baker and Brent Jex; Boudreau Williams and Jon R. Williams for Defendant and Appellant. Michael J. F. Smith for Plaintiffs and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Adolfo M. Corona, Judge.
Keegan and Baker, Jason E. Baker and Brent Jex; Boudreau Williams and Jon R. Williams for Defendant and Appellant.
Michael J. F. Smith for Plaintiffs and Respondents.
This is an appeal from an order granting a new trial. The jury's verdict was in favor of defendant; the trial court's subsequent ruling on the remaining equitable cause of action was also in favor of defendant. On plaintiffs' motion for a new trial, the trial court found that the jury's verdict was inconsistent and therefore against law, and that the evidence was insufficient to support the decision. Defendant challenges that determination. Finding no error, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs are four former employees of defendant, NCRC, Inc., a company that provides maintenance and repair services to its business customers. Plaintiffs were employed as service technicians (handymen) and were required to travel to customer locations spread over a wide area. They provided their own vehicles and hand tools. In this action, plaintiffs asserted 12 causes of action against defendant: (1) failure to pay regular and overtime wages, (2) failure to pay minimum wage, (3) failure to provide meal periods, (4) failure to provide rest periods, (5) conversion or theft of labor, (6) knowing and intentional failure to provide accurate, itemized wage statements, (7) failure to timely pay wages due at termination, (8) failure to reimburse travel and other expenses, (9) failure to pay reporting time wages, (10) violation of the unfair competition law, (11) breach of contract, and (12) retaliation.
Defendant, through its office in Vista, California, would send job assignments to the service technicians at their homes by facsimile or e-mail. The service technician would review the assignment, use the internet to determine the location of the job site if it was unfamiliar and then proceed to the job site in his vehicle. On arrival, the technician would check in with defendant by the telephone on site; from that point, his time was "on the clock" and he was paid an hourly wage for this "productive" time. The technician would determine what work needed to be done and, if materials he did not have were necessary in order to complete the job, he would obtain the necessary materials from defendant's storage facility or from a home improvement or hardware store. While obtaining the materials, the technician remained on the clock. After completing the job for the customer, the technician would telephone defendant to check out, at which time he went off the clock and no longer earned wages at an hourly rate. The technician then drove to the next job assignment, where he again checked in with defendant and went on the clock.
Time spent driving to and from job sites was considered to be nonproductive time for which the technician was not paid at his hourly rate; he received only a mileage reimbursement for driving. Plaintiffs testified they agreed to work for an hourly wage of $18-$20 and a mileage reimbursement rate of $.60 per mile. They testified they understood the mileage reimbursement to be payment for their vehicle expenses only. Defendant's witnesses testified the mileage reimbursement payment was intended to reimburse the technician for both his vehicle expenses and the technician's time spent driving. Defendant did not reimburse the technicians for time or mileage for their commute to the first job assignment of the day or home from the last job assignment, unless it exceeded a specified distance, which varied between 15 and 60 miles each way; if it exceeded the specified distance, the technician received mileage reimbursement for the excess.
The service technicians' productive time and mileage were tracked by computer. Productive time was based on the time the technician clocked in and out at the customer's job site. Mileage driven was determined by a computer program which estimated the distance between job sites and between the technician's home and the first and last job site of each day. Defendant did not keep a record of the time plaintiffs spent driving to and from job locations; with the exception of trips to defendant's storage unit or to a store to obtain materials after clocking in at a customer location, plaintiffs were not paid at their hourly rate for time spent driving. The hours reflected in their pay statements for which they were paid at their hourly rate included only productive hours. Their pay statements did not reflect that any portion of their mileage reimbursement was intended to be wages for drive time.
Plaintiffs sought to recover compensation for drive time, overtime hours, time and mileage for the drive defendant considered a commute, and time spent working at home. They also sought damages and penalties for providing plaintiffs with inaccurate wage statements in violation of Labor Code section 226.
All further statutory references are to the Labor Code unless otherwise indicated.
The breach of contract cause of action was dismissed prior to trial. The unfair competition cause of action was bifurcated for later trial by the court. On the remaining causes of action, the jury found in favor of defendant. The trial court subsequently found in favor of defendant on the unfair competition cause of action. Plaintiffs moved for new trial, asserting the findings in the jury's special verdict were inconsistent, against the law, and not supported by sufficient evidence, and the court's decision was against the law. The trial court granted the motion as to the first, second, fifth, sixth, seventh, eighth, and tenth causes of action, concluding two of the jury's findings were inconsistent and the weight of the evidence supported judgment for plaintiffs, at least on the claims of failure to pay overtime and failure to keep accurate records. Defendant appeals from the order granting a new trial.
DISCUSSION
I. Motion for New Trial
The grounds on which a motion for new trial may be made include "[i]nsufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against law." (Code Civ. Proc., § 657, subd. 6.) The trial court found the evidence was insufficient to justify the jury's verdict and the trial court's subsequent decision, and the verdict was against law because it was necessarily inconsistent.
"A new trial shall not be granted upon the ground of insufficiency of the evidence to justify the verdict ... unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict." (Code Civ. Proc., § 657.) "[T]he trial court, in ruling on a motion for new trial, has the power 'to disbelieve witnesses, reweigh the evidence, and draw reasonable inferences therefrom contrary to those of the trier of fact' [citation]." (Barrese v. Murray (2011) 198 Cal.App.4th 494, 503.) When a motion for new trial is granted on the ground of insufficiency of the evidence, "the presumption is in favor of the order granting the new trial and against the judgment. [Citation.] An appellate court will not interfere with the trial court's order in the absence of a showing of manifest or unmistakable abuse of discretion. It is not only the right, but the duty of the trial judge to grant a new trial when, in his opinion, he believes the weight of the evidence to be contrary to the finding of the jury." (Tice v. Kaiser Co. (1951) 102 Cal.App.2d 44, 46 (Tice).) The trial court's "'action in granting a new trial on this ground is discretionary to the extent that if any appreciable conflict exists in the evidence the court's action may not be disturbed on appeal.' [Citations.]" (Ibid.)
"'[T]he phrase "against law" does not import a situation in which the court weighs the evidence and finds a balance against the verdict, as it does in considering the ground of insufficiency of the evidence.' [Citation.]" (Sanchez-Corea v. Bank of America (1985) 38 Cal.3d 892, 906.) A verdict is "'against law' only if it was 'unsupported by any substantial evidence, i.e., [if] the entire evidence [was] such as would justify a directed verdict against the part[ies] in whose favor the verdict [was] returned.' [Citations.]" (Ibid.) It is against law if the evidence is without conflict and insufficient as a matter of law. (Hoffman-Haag v. Transamerica Ins. Co. (1991) 1 Cal.App.4th 10, 15 (Hoffman-Haag).) Additionally, "[i]nconsistent verdicts are '"against the law,"' and the proper remedy is a new trial." (Shaw v. Hughes Aircraft Co. (2000) 83 Cal.App.4th 1336, 1344.) "A special verdict is inconsistent if there is no possibility of reconciling" its findings with each other.(Singh v. Southland Stone, U.S.A., Inc. (2010) 186 Cal.App.4th 338, 357.)
II. Inconsistencies in Special Verdict
Section 226 provides, in pertinent part:
"(a) Every employer shall, semimonthly or at the time of each payment of wages, furnish each of his or her employees ... an accurate itemized statement in writing showing (1) gross wages earned, (2) total hours worked by the employee ., (3) the number of piece-rate units earned and any applicable piece rate if the employee is paid on a piece-rate basis, (4) all deductions ..., (5) net wages earned, ... and (9) all applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate by the employee.... [¶] ... [¶]
"(e) An employee suffering injury as a result of a knowing and intentional failure by an employer to comply with subdivision (a) is entitled to recover the greater of all actual damages or fifty dollars ($50) for the initial pay period in which a violation occurs and one hundred dollars ($100) per employee for each violation in a subsequent pay period, not exceeding an aggregate penalty of four thousand dollars ($4,000), and is entitled to an award of costs and reasonable attorney's fees." (§ 226, subds. (a), (e).)
Similarly, section 1174 requires every employer to keep "payroll records showing the hours worked daily by and the wages paid to, and the number of piece-rate units earned by and any applicable piece rate paid to, employees." (§ 1174, subd. (d).)
Plaintiffs contended defendant violated section 226 by failing to accurately state total hours worked, all applicable hourly rates in effect during the pay period, and the number of hours worked at each rate, because the amounts reported excluded drive time. Plaintiffs also contended that, if drive time was compensated per mile through the mileage reimbursement, as defendant asserted, then the number of piece rate units earned and the piece rate were required to be included, and they were not.
The jury found no violation. Question No. 10 in the special verdict asked: "Did NCRC fail to issue an accurate itemized wage statements to any of the plaintiffs listed below during any pay period?" For each plaintiff, the jury answered "no." The trial court found there was an inconsistency between finding No. 10 and finding No. 2. Question No. 2 in the special verdict asked: "Did you find that NCRC's compensation plan had a different rate of pay for drive time based on the number of miles driven?" For each plaintiff, the jury answered "yes." In the motion for new trial, plaintiffs argued, and the trial court agreed, that, implicit in finding No. 2, was a finding that compensable drive time was hours worked, for which defendant had a different rate of pay. Accordingly, because drive time was hours worked, section 226 required that those hours be included in the "total hours worked by the employee" on the wage statement, and the other applicable information required by section 226 be provided for that work. Because this was not done, the trial court concluded finding No. 2 and finding No. 10 were necessarily inconsistent.
Plaintiffs argued that all of their drive time was compensable. The jury found that defendant did not owe plaintiffs any wages for drive time that NCRC deemed to be a commute, so the trial court treated only noncommute drive time as compensable.
Defendant contends the trial court reached its determination by erroneously concluding that defendant's method of paying employees for drive time through mileage reimbursement violated sections 226 and 1174. Citing Gattuso v. Harte-Hanks Shoppers, Inc. (2007) 42 Cal.4th 554 (Gattuso),defendant argues that an employer may combine payment of wages with payment of expense reimbursement into a single payment. It asserts "the court erred when it concluded that combining hourly wage and expense reimbursements into a single payment method violated Labor Code sections 226 and 1174 as a matter of law." We disagree.
The trial court did not determine that combining wages and expense reimbursements into a single payment violated sections 226 and 1174. Rather, it correctly concluded that failing to provide the employee with a wage statement that includes a means of differentiating between the payments, so that the employee can determine whether he is being paid properly for both items, is a violation of section 226.
In Gattuso, the defendant's employees were paid a combination of base salary and commissions for their work. The plaintiffs were employees who were required to drive their own vehicles to contact customers; they sued under section 2802 for reimbursement of their vehicle expenses. The defendant contended it satisfied its statutory obligation by paying the plaintiffs higher base salaries and higher commission rates than it paid to employees who were not required to use their vehicles to contact customers. The court concluded section 2802 required the defendant to fully reimburse its employees for vehicle expenses incurred in performing their employment tasks, and this could be done through a lump sum payment. (Gattuso, supra, 42 Cal.4th at p. 567, 570-571.) Discussing whether the vehicle reimbursement could be combined into a single payment with salary and commissions, the court noted that wages are subject to statutory restrictions, such as minimum wage laws, and may be subject to contractual provisions, which do not apply to the obligation to indemnify the employee for all business expenses. It concluded the payments may not be combined "in a way that would seriously hamper or effectively preclude enforcement of the various statutory and contractual obligations." (Id. at p. 572.) The court added:
Section 2802, subdivision (a), requires an employer to "indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer."
"This does not mean, however, that an employer is prohibited from combining wages and business expense reimbursements in a single enhanced employee compensation payment or from discharging its section 2802 business expense reimbursement obligation through an increase in base salary or in commission rates (or an increase in both salary and commission rates). It simply means that the employer must provide some method or formula to identify the amount of the combined employee compensation payment that is intended to provide expense reimbursement. Using that method or formula, the employee (and also officials charged with enforcement of state and federal wage laws) then can readily determine whether the employer has discharged all of its legal obligations as to both wages and business expense reimbursement. Although section 2802 does not expressly require the employer to provide an apportionment method, it is essential that employees and officials charged with enforcing the labor laws be able to differentiate between wages and expense
reimbursements. Because providing an apportionment method is a practical necessity for effective enforcement of section 2802's reimbursement provisions, it is implicit in the statutory scheme." (Gattuso, supra, 42 Cal.4th at pp. 572-573, italics added.)
The court also concluded the combined payment of vehicle expense reimbursement with salary and commissions did not violate section 226, subdivision (a).
"We find nothing in the language of section 226, subdivision (a), that prohibits an employer from discharging its reimbursement obligations under section 2802 by increases in base salary or commission rates. Section 226, subdivision (a), requires the employer to document the basis of the employee compensation payments, including the gross wages earned, the hours worked, the number of piece-rate units earned, and each deduction taken. As we have explained, an employer that uses salary and/or commission increases to discharge its reimbursement obligation must also communicate to its employees the method or basis for apportioning any increases in compensation between compensation for labor performed and business expense reimbursement. Such a requirement, as noted, is necessary for effective enforcement of section 2802's reimbursement provisions and, thus, implicit in the statutory scheme." (Gattuso, supra, 42 Cal.4th at p. 574, italics added, fn. omitted.)
Thus, while Gattuso concluded vehicle expense reimbursement and wages could be combined into a single payment, it also concluded section 226 required that the wage statement given to the employee include a method of apportioning the payment between compensation for work and reimbursement for expenses, so the employee and those charged with enforcement of wage laws are able to determine whether the employer is complying with minimum wage and overtime laws, as well as section 2802.
In Cicairos v. Summit Logistics, Inc. (2005) 133 Cal.App.4th 949, the court determined that, where an employer of truck drivers used a computerized system to track factors such as speed, starts and stops, and time, but the employees' wage statements always reflected a 40 hour week rather than the actual hours worked, the wage statements violated section 226, subdivision (a). (Cicairos, at pp. 955-956.) The court quoted from a Division of Labor Standards Enforcement (DLSE) opinion letter: "„[T]he obligation to list the total hours worked during the pay period can only be satisfied by listing the precise, actual number of hours worked.' [Citation.] 'The failure to list the precise number of hours worked during the pay period conflicts with the express language of the statute and stands in the way of the statutory purpose.' [Citation.] 'If it is left to the employee to add up the daily hours shown on the time cards or other records so that the employee must perform arithmetic computations to determine the total hours worked during the pay period, the requirements of section 226 would not be met.' [Citation.]" (Id. at p. 955.)
Defendant did not dispute that plaintiffs' drive time, other than a reasonable commute, was compensable hours worked. Rather, it contended that plaintiffs were compensated for their drive time through the mileage reimbursement. Defendant's president and vice-president testified that defendant did not keep a record of its service technicians' drive time; the computer system did not capture that information. Additionally, the wage statements given to the service technicians did not show the hours they drove for defendant. The wage statements did not distinguish the portion of the mileage reimbursement that was payment for drive time from the portion that was reimbursement for vehicle expenses. In his closing argument, defense counsel questioned why plaintiffs had presented no calculations deducting actual vehicle expenses from the mileage reimbursement to show how much they were paid for their drive time. Gattuso, supra, 42 Cal.4th 554, however, makes clear that, if the employer combines payment for wages with reimbursement of vehicle expenses, it is the employer's responsibility to calculate the respective portions of the payment or to provide a method or formula to enable the employee to calculate them.
Thus, the evidence was undisputed that defendant failed to keep accurate records of all the hours plaintiffs worked and failed to provide plaintiffs with wage statements that accurately stated the total hours they worked, including drive time. The wage statements reflected only productive hours worked and mileage reimbursement. They did not indicate that the mileage reimbursement included any component of wages for drive time. They did not set out a formula for apportioning the mileage reimbursement between reimbursement for vehicle expenses and wages for drive time. They did not provide a method for determining the effective hourly rate of pay for drive time to enable the employees and labor law enforcement officials to determine whether defendant was in compliance with minimum wage and overtime laws.
The trial court did not err in concluding the jury's finding No. 2 and finding No. 10 were inconsistent. Finding No. 2 determined that plaintiffs' drive time was compensated, but at a different rate of pay than productive time. The wage statements defendant provided to plaintiffs, however, did not reflect any information about that compensation - not the hours compensated, the rate of pay, or any other method of calculating the compensation. Section 226 required that the total of plaintiffs' hours worked be included in plaintiffs' pay statements. Gattuso required that the employer provide a method of apportionment of a combined payment, enabling the employee and enforcement authorities to determine how much was paid for hours worked and how much for expense reimbursement. The evidence was undisputed that this was not done. Thus, finding No. 2 is inconsistent with finding No. 10, that defendant did not fail to issue an accurate itemized wage statement to any plaintiff during any pay period. The verdict was inconsistent and therefore against law.
Defendant argues that a violation of section 226 was not established because plaintiffs did not prove that any such violation was knowing and intentional or that it caused them actual injury. Because the jury answered special verdict question No. 10 "no," it did not reach the follow-up questions regarding whether any failure to issue an accurate itemized wage statement was an inadvertent mistake by defendant and whether it caused any actual injury to any plaintiff. Thus, the jury made no findings on those issues.
There was evidence from which a jury could find a knowing and intentional violation and actual injury to plaintiffs. There was evidence that defendant designed and implemented its compensation plan, which included hourly pay for productive time and payment by mileage reimbursement for drive time, with the assistance of consultants. They considered other plans before settling on the one implemented. Defendant's wage statements reflected only productive time as hours worked and, according to defendant, included compensation for drive time in the mileage reimbursement. Plaintiffs denied being told that the mileage reimbursement included compensation for drive time; they testified they understood it to be reimbursement for their vehicle expenses only. Defendant's computer system was capable of capturing and recording time spent driving, but defendant did not set it up to do so. Even after plaintiff's attorney requested access to plaintiffs' wage records and specifically sought records of the hours plaintiffs drove, and even after this lawsuit was filed, challenging the lack of payment for drive time and the exclusion of drive time from the wage statements, defendant's wage statements continued to exclude drive time from the total hours worked. Drive time was also excluded from the calculation of overtime. Thus, there was evidence from which a jury could find that the violation of section 226 was knowing and intentional.
This conclusion is consistent with the result in Perez v. Safety-Kleen Systems, Inc. (N.D. Cal. 2008) 253 F.R.D. 508 (Perez). In Perez, plaintiffs asserted their employer failed to provide accurate itemized wage statements as required by section 226. Defendant moved for summary judgment, contending inaccuracies in its wage statement were not intentional; it argued the wage statements were prepared by a data processing service and defendant "had no 'will or desire' to omit actual hours worked" from the wage statements. (Perez, at p. 517.) The court denied summary judgment, finding there was no evidence defendant had transmitted records of plaintiffs' actual hours worked to the data processing service, defendant had no method of calculating the number of hours plaintiffs worked each day, and defendant had not changed its wage statement procedures after the lawsuit was filed. Consequently, there was a triable issue of fact regarding whether the failure to include actual hours worked was intentional. (Ibid.)
In Jaimez v. Daiohs USA, Inc. (2010) 181 Cal.App.4th 1286 (Jaimez), which discussed the meaning of the term "suffering injury" as used in section 226, subdivision (e), in the context of a class action certification, the court concluded that "a very modest showing will suffice." (Jaimez, at p. 1306.) It relied on two federal cases in reaching its conclusion.
"In Wang v. Chinese Daily News, Inc. (C.D. Cal. 2006) 435 F.Supp.2d 1042 (Wang), on cross-motions for summary judgment, defendants argued that the plaintiffs could not establish the requisite injury. The employer's wage statements consistently reflected 86.66 hours worked (regardless of the number of hours actually worked) and omitted the hourly wage paid. The court found an employee suffered injury 'because (1) the employee might not be paid overtime to which she was entitled and (2) the absence of an hourly rate prevents an employee from challenging the overtime rate paid by [the employer].' [Citation.] The court explained further: 'Additionally, this lawsuit, and the difficulty and expense Plaintiffs have encountered in attempting to reconstruct time and pay records, is further evidence of the injury suffered as a result of [the employer's] wage statements. Plaintiffs' ability to calculate unpaid and miscalculated overtime is complicated by the missing information required by Section 226(a). The purpose of the requirement is that employees need not engage in the discovery and mathematical computations to analyze the very information that California law requires.' [Citation.] The Wang court set the bar rather low.
"Similarly, in Elliot v. Spherion Pacific Work, LLC (C.D. Cal. 2008) 572 F.Supp.2d 1169, again on cross-motions for summary judgment, the court addressed the same issue of the meaning of the term 'suffering injury.' There, the court stated 'the statute clearly requires that an employee is not eligible to recover for violations of section 226(a) unless he or she demonstrates some injury from the employer's violation.' [Citation.] The court listed the range of injuries in the cases the plaintiff had cited to show that no injury was necessary: 'These injuries included the possibility of not being paid overtime, employee confusion over whether they received all wages owed them, difficulty and expense involved in reconstructing pay records, and forcing employees to make mathematical computations to analyze whether the wages paid in fact compensated them for all hours worked.' [Citation.] While there must be some injury in order to recover damages, a very modest showing will suffice." (Jaimez, supra, 181 Cal.App.4th at p. 1306.)
Evidence at trial indicated that the wage statements defendant gave to plaintiffs did not reflect the hours of drive time or the rate at which it was paid. Plaintiffs could not determine from the information provided in the wage statements whether they had been properly paid for their drive time or for any overtime hours. They incurred the difficulty and expense of attempting to reconstruct correct time and pay records, when crucial information (hours spent driving, actual vehicle expenses) was unavailable because defendant failed to keep records of it. If, as defendant contended, plaintiffs were compensated for their drive time by some portion of the mileage reimbursement payments, then relatively complex mathematical calculations would be required in order to apportion those payments between wages and vehicle expense reimbursements. At trial, defendant consistently attempted to impose the burden of making those calculations on plaintiffs. Plaintiffs presented expert evidence at trial, through the testimony of an accountant, Susan Thompson, and the spreadsheets she prepared, in which she attempted to reconstruct plaintiffs' drive time and calculate what they should have been paid for it, including overtime if the addition of drive time pushed the work hours for the day over eight. There was evidence of the cost to plaintiffs of hiring Thompson to perform her analysis. There was also evidence in the spreadsheets of occasions when the addition of drive time increased a plaintiff's work hours so that overtime should have been paid, but was not. Thus, there was evidence from which a jury could find that plaintiffs suffered injury as a result of defendant's inaccurate wage statements.
The trial court did not err in granting the motion for a new trial on the ground the verdict was against law because it contained inconsistent findings or on the ground there was insufficient evidence to support the finding that defendant did not fail to issue accurate itemized wage statements to plaintiffs.
III. Burden of Proof
Defendant contends the trial court improperly relieved plaintiffs of their initial burden of proving they performed work for which they were not compensated and instead shifted the burden to defendant to prove they were correctly paid. In Hernandez v. Mendoza (1988) 199 Cal.App.3d 721 (Hernandez),the plaintiff testified he agreed to work for the defendant for $300 per week, with no agreement as to the number of hours he would work; he testified he worked 7 days a week, 13 hours a day, during the disputed period, and provided a reconstructed calendar showing the days and hours he worked. The defendant testified the parties agreed the plaintiff would be paid minimum wage and would work 9 hours a day, 7 days a week; he asserted minimum wage plus overtime during the disputed period amounted to less than the $300 the plaintiff was paid weekly. The defendant admitted, however, that the plaintiff may have worked 12 hours a day for an 8-day period when he was first hired. (Id. at p. 724.) The trial court disbelieved the time cards submitted by the defendant and the calendar submitted by the plaintiff. It found in favor of the defendant, concluding the plaintiff had not carried his burden of proof. It stated that it appeared reasonable that the plaintiff had worked some overtime, but it could not determine how much from the evidence and it could not guess. (Id. at p. 725.)
The court stated that "[a]bsent an explicit, mutual wage agreement, a fixed salary does not serve to compensate an employee for the number of hours worked under statutory overtime requirements. [Citations.]" (Hernandez, supra, 199 Cal.App.3d at p. 725.) Because there was no evidence of such an explicit agreement, and there was undisputed evidence that the plaintiff had worked at least 63 hours a week during the disputed period, "the record show[ed] without question that [the plaintiff] incurred damages of uncompensated overtime during the disputed period." (Id. at p. 726.) Accordingly, the trial court had a duty to ascertain the amount of the plaintiff's damages and make an appropriate award. "Once an employee shows that he performed work for which he was not paid, the fact of damage is certain; the only uncertainty is the amount of damage. [Citations.] In such a case, it would be a perversion of justice to deny all relief to the injured person, thereby relieving the wrongdoer from making any restitution for his wrongful act. [Citation.]" (Id. at pp. 726-727.) "[W]here the employer has failed to keep records required by statute, the consequences for such failure should fall on the employer, not the employee. In such a situation, imprecise evidence by the employee can provide a sufficient basis for damages." (Id. at p. 727, italics added.) The court held:
"'[A]n employee has carried out his burden if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference. The burden then shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negative the reasonableness of the inference to be drawn from the employee's evidence. If the employer fails to produce such evidence, the court may then award damages to the employee, even though the result be only approximate.' [Citations.]" (Hernandez, supra, 199 Cal.App.3d at p. 727.)
Although some statements in the trial court's ruling seem to suggest it placed the burden of proof of accurate payment on defendant, the trial court found that the spreadsheets presented by plaintiffs contained evidence that not all of their hours worked were properly compensated. It indicated the testimony and analysis of plaintiff's expert, Thompson, were based on defendant's own records and reasonable estimates to fill in the gaps left by defendant's failure to keep accurate and complete records. It noted that defendant offered no evidence to challenge Thompson's analysis. Defendant argues that none of the plaintiffs affirmatively testified that they were not properly paid for all their hours of work on any particular day and that it showed Thompson's opinion was unreasonable because some portions of it were based on assumptions not supported by law or evidence. Testimony of plaintiffs was not required and, as the trial court noted, Thompson's opinions and calculations were based on defendant's records, not solely on assumptions.
Defendant's president admitted that overtime was calculated on productive hours only; drive time was excluded. Thompson estimated the number of hours plaintiffs spent driving, based on the mileage recorded and defendant's records of the addresses to which they drove each day. She used computer programs to estimate drive time between locations. Defendant seems to concede that an accurate estimate of drive time may be made from mileage. It states: "Although NCRC's statements did not track Respondents' hourly drive time each day, it did track their mileage each day, figures from which the jury could estimate how much time Respondents spent driving each day."
The trial court concluded Thompson's spreadsheets, "coupled with the actual time sheets submitted by Defendant, do appear to be a sufficient basis for Plaintiffs' 'estimations' as to their drive time based on the number of miles listed on the payroll records." The trial court cited one example from the spreadsheets, which showed that on one day, plaintiff Thomas Kinnick worked 7.989 hours of productive time according to defendant's records; he was also reimbursed for 389 miles. After deducting miles for plaintiff's commute, the trial court estimated his drive time and concluded he would have had at least 4 hours of overtime and 1.25 hours of double time for that day, but defendant's records did not reflect payment of any overtime. Then, deducting from the recorded mileage reimbursement for that day an amount for vehicle expenses based on the Internal Revenue Service reimbursement rate, the court calculated Kinnick earned $9.93 per hour for drive time, although most of it would have been overtime; that amount was less than the overtime rate applicable a minimum wage worker, as well as the overtime rate applicable to a worker who is required to provide his own tools. Although the trial court cited only one example involving one plaintiff, it had Thompson's spreadsheets for all of the plaintiffs before it in considering the motion for a new trial. On appeal, defendant has the burden of demonstrating error and providing a sufficient record to do so. (Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 187.) It has not included the spreadsheets in the record and has not demonstrated that they failed to reflect any instances of possible uncompensated or undercompensated work time.
The jury was instructed that "[a]n employee whose regular rate of pay is at least two (2) times the minimum wage may be required to provide and maintain hand tools and equipment customarily required by the trade or craft, without being reimbursed by the employer. [¶] You may also consider the employer's requirement for employee's [sic] to provide hand tools and equipment as part of the evidence bearing on what the agreed rate of pay must be." This instruction was apparently based on Industrial Welfare Commission Order No. 16-2001.
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The trial court stated:
"While these calculations are rough, based on estimations, and somewhat confusing, that appears to be in part because Defendant neither kept accurate count of the actual drive hours nor provided the 'formula' required by Gattuso so that both Plaintiffs and 'officials charged with enforcing the labor laws' could differentiate between wages and expense reimbursements, and determine if the employer was in compliance with both Labor Code §510 and §2802. [¶] The expert's spreadsheets appear to be the 'estimate that CACI 2703 says the employee can use, and defendant then has the burden to show that those estimates are 'unreasonable.'"
Thus, the trial court found that the calculations presented in the spreadsheets met plaintiffs' burden of demonstrating they performed work for which they were not properly compensated and providing an estimate of their resulting loss. It then shifted to defendant the burden of demonstrating that the correct amount of work was compensated or negating the reasonableness of the inferences to be drawn from plaintiffs' evidence. It concluded "the weight of the evidence supported judgment for the Plaintiffs, on at least their overtime claims and claims of failure to provide accurate records."
The trial court has discretion to grant a new trial when it believes the weight of the evidence is contrary to the jury's finding; "'if any appreciable conflict exists in the evidence the court's action may not be disturbed on appeal.' [Citations.]" (Tice, supra, 102 Cal.App.2d at p. 46.) The evidence was conflicting. Defendant has not demonstrated a manifest abuse of discretion in the trial court's ruling. We will not disturb the trial court's decision.
DISPOSITION
The order granting a new trial is affirmed. Plaintiffs are awarded their costs on appeal.
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HILL, P. J.
WE CONCUR: ______________
KANE, J.
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DETJEN, J.