Filed 5/20/14
                           CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                             FIRST APPELLATE DISTRICT
                                    DIVISION THREE


HENRY JONG,
        Plaintiff and Appellant,
                                                        A138725
v.
KAISER FOUNDATION HEALTH                                Alameda County
PLAN, INC., et al.,                                     Super. Ct. No. RG12613328)
        Defendants and Respondents.


        Plaintiff Henry Jong appeals from a summary judgment entered against him in his
action for unpaid overtime for alleged “off-the-clock” work as an hourly “Outpatient
Pharmacy Manager” (OPM) for Kaiser Foundation Health Plan, Inc. and Kaiser
Foundation Hospitals (collectively, Kaiser). He contends the trial court erroneously held
his proffered evidence insufficient to create a triable issue as to whether Kaiser had actual
or constructive knowledge that he was working hours in addition to those that he
reported. We shall affirm the trial court’s judgment.
                                       Background
        Jong and two other former OPMs brought a putative class action against Kaiser
alleging numerous wage and hour violations, including, as relevant to this appeal, a cause
of action for the alleged failure to pay overtime compensation for hours worked off the
clock. Jong and each of the other two plaintiffs were employed by Kaiser as OPMs at
different Kaiser pharmacies in California. On various dates between January 2005 and
October 2010, Jong worked as a manager at three different pharmacies. Because the
defendants’ motion for summary judgment was granted only as to Jong, we focus
primarily on the facts pertinent to his employment and to the motion against him.



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       Prior to November 2009, Jong and all outpatient pharmacy managers were
classified as salaried employees, exempt from various wage and hour requirements. As a
consequence of the settlement of a class action alleging that these employees had been
misclassified and denied benefits to which they were entitled (Lopez v. Kaiser
Foundation Health Plan, Inc. (Super. Ct. Alameda County, No. RG 07-305405)), these
employees were reclassified as non-exempt hourly employees entitled to overtime
premium compensation. Plaintiffs’ complaint alleges that at the same time, Kaiser
“instituted a policy that forbade the payment of overtime premium to Plaintiffs and the
Class, while simultaneously refusing to make any adjustments to the duties and
responsibilities of [the] Class.” “This is significant,” the complaint further alleges,
because Kaiser’s “own data, including surveys of the Class Members produced in the
Lopez action, indicated that, before they were re-classified, Class Members were
routinely working fifty (50) hours or more per week in order to [meet Kaiser’s goals and
requirements]. [¶] The net effect of [Kaiser’s] policy against the payment of overtime
premium along with no depreciation in the nature of their job duties, since being
reclassified non-exempt , hourly workers, Plaintiffs and the Class have been, and
continue to be, forced to work ‘off the clock’ so as not to incur overtime premium pay in
violation of [Kaiser’s] policy while still maintaining compliance with [Kaiser’s] lofty
expectations.”
       Following discovery, Kaiser moved for summary judgment on the ground, as to
this claim, that Jong lacked evidence that Kaiser “failed to pay overtime wages for hours
he worked that Kaiser knew or should have known he worked.” In granting the motion,
the trial court fairly summarized Kaiser’s evidence as follows: “Kaiser’s evidentiary
support . . . consists in substantial part of excerpts from the Jong transcript deposition.
Jong testified that he was aware that it was Kaiser’s policy to pay for all hours worked
and to pay for all overtime hours employees record, even if an employee should or could
have obtained pre-approval before working the overtime but failed to do so. He also
testified that he was familiar with the applicable time keeping rules and that he knew how
to use the timekeeping system. He also signed a document entitled ‘Attestation Form for


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Hourly Managers and Supervisors – Working Off-the-Clock Not Allowed’ (the
‘Attestation’). Jong further testified that he did not know whether anyone in Kaiser
management was aware he was performing the off-the-clock work he now claims to have
performed before clocking in in the morning, after clocking out at the end of the day, and
at home in between his work days. [¶] . . . Jong testified that he was unable to recall the
number of off-the-clock hours he worked and kept no written record of those hours.”
       In opposing the motion for summary judgment, Jong argued as follows: “While
Kaiser may instruct its non-exempt employees to accurately report all hours worked,
plaintiff was accountable to ensure that the pharmacy stayed within the pharmacy’s
predetermined budget. Plaintiff’s inability to stay within budget by incurring excessive or
routine overtime was deemed to be a failure to perform his job duties which could result
in discipline including termination. In fact, plaintiff was reprimanded for failing to stay
within budget based upon the incurrence of too much overtime. As such regardless of
Kaiser’s written policy, the circumstances were such [that they] placed plaintiff in the
unenviable position of deciding whether to report all hours worked and face discipline for
failing to stay within budget or refuse to report all hours so as [to] maintain his
accountability for staying within budget and avoid the imposition of discipline.
Moreover, Kaiser was aware that OPMs, including plaintiff, were regularly required to
work substantially more than 40 hours in a week to complete their job duties which
remained the same after OPMs were reclassified to non-exempt.” In the Discussion
section, post, we shall discuss the evidence that Jong proffered to show that Kaiser was
aware that he had worked off-the-clock hours that he did not report.
       The trial court granted Kaiser’s motion as to Jong but denied the motion as to the
other two named plaintiffs. The court ruled that much of Jong’s evidence was
inadmissible and that his evidence failed to show that he—as distinguished from some
OPMs in general—was working off the clock. In denying the motion as to the other
plaintiffs, the court found in their testimony “weak” evidence of conversations with their
supervisors indicating awareness that they were in fact working off-the-clock hours that



                                              3
were not recorded, but Jong proffered no similar evidence of conversations as to his
working hours.
       Jong has timely appealed from the adverse judgment entered pursuant to the
court’s ruling on the summary judgment motion, and on appeal challenges only the trial
court’s ruling with respect to his claim for unpaid overtime compensation.
                                         Discussion
       Jong’s cause of action is brought under Labor Code section 1194, which
authorizes “any employee receiving less than the legal minimum wage or the legal
overtime compensation applicable to the employee” to recover the unpaid amount due,
plus interest, attorney fees and costs. Although not articulated in the statute, the parties
and the trial court assumed the applicability under the Labor Code of certain principles
that federal courts have applied in similar cases under the Fair Labor Standards Act
(FLSA) (29 U.S.C. § 207(a)). In Forrester v. Roth’s I.G.A. Foodliner, Inc. (9th Cir. 1981)
646 F.2d 413, the court held that “where an employer has no knowledge that an employee
is engaging in overtime work and that employee fails to notify the employer or
deliberately prevents the employer from acquiring knowledge of the overtime work, the
employer’s failure to pay for the overtime hours is not a violation of § 207.” (646 F.2d at
p. 414.) “An employer must have an opportunity to comply with the provisions of the
FLSA. This is not to say that an employer may escape responsibility by negligently
maintaining records required by the FLSA, or by deliberately turning its back on a
situation. However, where the acts of an employee prevent an employer from acquiring
knowledge, here of alleged uncompensated overtime hours, the employer cannot be said
to have suffered or permitted the employee to work in violation of § 207(a).” (Id. at
pp. 414-415; see also, e.g., Kellar v. Summit Seating, Inc. (7th Cir. 2011) 664 F.3d 169,
176-178; cf. Brown v. Scriptpro, LLC (10th Cir. 2012) 700 F.3d 1222, 1230-1231.) This
qualification was implicitly endorsed by our Supreme Court in a different context
(Morillion v. Royal Packing Co. (2000) 22 Cal.4th 575, 585 [“ ‘ “[T]he words ‘suffer’
and ‘permit’ as used in the statute mean ‘with the knowledge of the employer.’ ” ’ ”] It
has been followed in at least one case in federal court brought under the provisions of the


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Labor Code. (White v. Starbucks Corp. (N.D.Cal. 2007) 497 F.Supp.2d 1080, 1083 [“To
prevail on his off-the clock claim, White must prove that Starbucks had actual or
constructive knowledge of his alleged off-the-clock work.”].) We see no reason to
question this basic premise on which all parties have proceeded.
       The evidence on which Jong principally relies to establish Kaiser’s actual or at
least constructive knowledge that he was working more than the hours he reported is the
deposition testimony that 18 OPMs gave in the Lopez litigation. According to the
excerpts from their depositions submitted in opposition to the summary judgment motion,
each of the 18 OPMs required more than 40 hours a week to perform their required tasks.
The trial court sustained Kaiser’s hearsay objection to the consideration of these
deposition excerpts. Jong does not dispute that the deposition testimony taken in another
case cannot be used to establish the truth of the deponents’ testimony. (Gatton v.
A.P. Green Services, Inc. (1998) 64 Cal.App.4th 688.) He argues that the deposition
testimony should have been received not for the truth of the testimony, but to show that
Kaiser was put on notice of the claim that more than 40 hours a week is required for the
OPMs to fulfill their job responsibilities.
       The trial court disagreed “because here the issues as to each plaintiff is whether
Kaiser had constructive knowledge of whether that plaintiff was working off the clock
and the notice issue is specific to that individual in his or her specific pharmacy rather
than OPMs in general. Further, plaintiffs are offering the testimony not merely for
‘notice’ but for the truth of the matter—that is, that the OPM position generally requires
work on average of 48 hours or more per week. Use of those depositions to prove Kaiser
had constructive knowledge that all OPMs were in fact working 48 hours or more per
week is an impermissible hearsay use.”
       We do not agree with the trial court’s second reason for rejecting the evidence.
Assuming that the deposition testimony was offered for both a permissible and an
impermissible purpose, the latter does not preclude consideration for the permissible
purpose. Here, it was not necessary to rely on the depositions for evidence that Jong
worked more than 40 hours per week; Jong’s testimony was sufficient to create a triable


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issue of that fact. But to the extent the deposition testimony was offered to prove notice,
the excerpts were properly excluded for the first reason given by the trial court, although
the objection is more properly characterized as irrelevance rather than hearsay. The
depositions in the Lopez action may have provided notice that when OPMs were exempt
salaried employees, many worked more than 40 hours a week. But that testimony hardly
put Kaiser on notice that when their classification was changed and they were directed
not to work overtime without prior approval and to report any overtime that they did
work, OPMs in general, and Jong in particular, failed to comply with those directives.
       The situation in White v. Starbucks Corp., supra, 497 F.Supp.2d 1080 was
comparable. There, “White does not dispute that he never told anyone at Starbucks about
working off-the-clock. White does not dispute that he and others recorded and were paid
for overtime work. Rather, White attempts to create a dispute of fact whether Starbucks
knew about some unspecified time worked off-the-clock by showing that ‘[d]efendant
knew how much time it took to perform much of the work required by the SMs [store
managers].’ . . . [¶] White concludes that ‘[t]his level of intimate knowledge of the SMs
activities, in and of itself, would support a reasonable conclusion that the Defendant
should have known what its SMs were doing.’ ” (Id. at pp. 1083-1084.) The court
indicated that it was “troubled by plaintiff’s evidence,” but that “[w]hile plaintiff may be
able to show a material dispute whether Starbucks had actual or constructive knowledge
that some store managers sometimes worked off-the-clock, plaintiff has not submitted
evidence that Starbucks had actual or constructive knowledge that Steve White worked
off-the-clock.” (Id. at p. 1084.) The court concluded, “White has failed to raise genuine
issues of fact. Based on White’s ‘evidence,’ the court finds that no reasonable jury cold
conclude that Starbucks knew about White’s alleged unpaid time. White’s theories for
imputing knowledge to Starbucks are pure conjecture. Imputing constructive knowledge
would be particularly inappropriate given that White was paid for significant overtime
during his brief tenure and admitted that he was never criticized for working overtime.”
(Id. at p. 1085.) While Jong has submitted evidence that he was criticized for working
overtime, he proffered no evidence that his supervisors told him he could or should work


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off the clock or that he advised the supervisors that he would discontinue reporting his
overtime hours rather than limiting the time he spent on the job. In all other respects, the
facts in the two cases are remarkably similar.
       The facts in Newton v. City of Henderson (5th Cir. 1995) 47 F.3d 746 are also
similar. There, the court wrote, “In light of the fact that [a supervisor] explicitly ordered
[a police officer] not to work overtime and in light of the fact that [the officer]admits that
he never demanded payment for overtime already worked, it is clear that access to
information regarding the Task Force’s activities [on which the officer worked], standing
alone, is insufficient to support the conclusion that the City should have known that [the
officer] was working overtime.” (Id. at p. 749.) The court concluded: “[The officer] does
not deny that the City officially notified him that he could not work additional overtime
hours. He does not present evidence that he was unofficially told otherwise. The evidence
will not support his contention that the City should have known that the hours reported on
his City time sheets were incorrect.” (Id. at p. 750; see also, e.g., Forrester v. Roth’s
I.G.A. Foodliner, Inc., supra, 646 F.2d at pp. 414-415.)
       Here, Jong acknowledged that he “knew of Kaiser’s written policy that OPMs
should be clocked in whenever they were working,” that he was always paid for time he
recorded on Kaiser’s recording system, including overtime hours, that he was instructed
he was eligible to work and be paid for overtime hours, that there was never an occasion
when he requested approval to work overtime that was denied and there were occasions
when he worked and was paid overtime even though he did not seek pre-approval, that he
was not told by any of his managers or supervisors or any other Kaiser management
personnel that he should perform work before he clocked in or after he clocked out or
otherwise work off-the-clock,1 and that he signed the attestation form and understood it


1
 When asked at his deposition whether anyone in Kaiser management ever became
aware that he was performing work prior to clocking in, he responded that he did not
know. In his response to Kaiser’s assertion that his lack of knowledge was an undisputed
material fact supporting the motion for summary judgment, he asserted that “[w]hether
plaintiff knows or does not know if Kaiser was aware of his off-the-clock work is

                                              7
was an attestation that he would not work off-the clock. Under these admitted
circumstances, evidence that Kaiser was aware that many OPMs worked more than
40 hours a week before being reclassified would not support a finding that after the
reclassification Kaiser knew or should have known that Jong was not correctly reporting
his hours.
       Jong contends that two pieces of evidence he presented, either alone or in
combination with the other evidence he proffered, were sufficient to create a triable issue
as to Kaiser’s constructive knowledge of his unreported overtime hours. He points to a
January 2010 email message from a Kaiser executive, stating “I have received reports of
potential violations [of the prohibition of working off the clock].” However, the trial
court’s reasoning for rejecting the sufficiency of this evidence is compelling: “A later
email to area pharmacy directors states: ‘Ensure that all staff are informed that working
off-the-clock is unacceptable . . .’ and requires OPMs to execute an attestation that they
know working off the clock is a violation of policy and may subject them to discipline.
Plaintiff argues that this evidences knowledge of off-the-clock violations; however, it
arises in the context of warnings that prohibit the practice and measures to impress that
policy upon all non-exempt employees. And it certainly falls short of evidence that
Kaiser knew Jong was working off the clock at his pharmacy—especially where Jong
basically admitted that he took steps to prevent Kaiser from discovering that he was
working off the clock.”
       Finally, Jong submitted alarm code data from his pharmacy cross-referenced to his
time records, which indicate that he disarmed the alarm prior to the time he reported
beginning his work. We again find the trial court’s reason for rejecting the sufficiency of
this evidence to be persuasive: “[E]ven assuming that the availability of such data could
otherwise meet the ‘should have known’ requirement, as opposed to ‘could have known’
[citation], the alarm data does not show what Jong was doing during the time between


irrelevant” and repeated his argument that Kaiser was aware that the work of an OPM
requires more than 40 hours a week.


                                             8
disarming the alarm and clocking in, or between checking out and arming the alarm.”
While the summary judgment papers may have contained evidence that Jong was
working whenever the alarm was off, that information was not before Kaiser when
paying Jong and Kaiser could reasonably believe that he did not begin or end work
except as he reported. (See See’s Candy Shops, Inc. v. Superior Court (2012) 210
Cal.App.4th 889, 909 [“In moving for summary adjudication, Silva did not produce any
evidence showing the class members who clocked in during the grace period were
working or were under the employer’s control. In responding to the motion, See’s Candy
produced facts showing the employees were not working and were engaged in their own
personal activities.”].)
       While cases that Jong cites do stand for the unquestioned proposition that an
employer’s actual or constructive knowledge of the hours its employees work is an issue
of fact, the issue on a summary judgment motion is whether evidence has been presented
that would support a finding of such knowledge. In one of the two cases Jong cites there
was in fact competent evidence that the employer had knowledge of unreported overtime
being worked. (Reich v. Department of Conservation & Natural Resources (11th Cir.
1994) 28 F.3d 1076, 1083 [“the Department had actual knowledge through the 1987
AMIP study that unreported overtime during deer hunting season continued to be a
substantial problem despite the Department’s 1985 written policy prohibiting all such
work”].) In the other, Davis v. Food Lion (4th Cir. 1986) 792 F.2d 1274, 1277-1278, the
Fourth Circuit affirmed a district court finding that the employer food market had no
actual or constructive knowledge of a market manager’s off-the-clock work, despite the
manager’s argument that the employer should have known of his off-the-clock work
“because of the pressure put on market managers by the unrealistically stringent” (id. at
p. 1277) scheduling system used by the market.
       Here, after reviewing all of the evidence that Jong tendered in opposition to the
summary judgment motion, we reach the same conclusion as did the trial court—that
none of this evidence, considered independently or collectively, is sufficient to support a
finding that Kaiser was aware of his unreported overtime hours. Jong failed to create a


                                             9
triable issue of a material fact essential to his claim, and Kaiser’s motion for summary
judgment therefore was properly granted.
                                       Disposition
       The judgment is affirmed.




                                                 _________________________
                                                 Pollak, J.


We concur:


_________________________
McGuiness, P. J.


_________________________
Siggins, J.




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Superior Court of Alameda County, No. RG12613328, Wynne S. Carvill, Judge.


Counsel for Plaintiff and Appellant:       STONEBARGER LAW, APC
                                           Gene J. Stonebarger
                                           Richard D. Lambert
                                           Elaine W. Yan

                                           KEARNEY LITTLEFIELD, LLP
                                           Thomas A. Kearney
                                           Prescott W. Littlefield



Counsel for Defendants and Respondents:    SHEPPARD, MULLIN, RICHTER &
                                           HAMPTON LLP
                                           Thomas R. Kaufman
                                           Gregg A. Fisch




A138725




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