Filed 12/22/16 (unmodified opn. attached)

                                CERTIFIED FOR PUBLICATION


             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   SIXTH APPELLATE DISTRICT


BRIAN DRISCOLL et al.,                             H037662
                                                  (Santa Clara County
        Plaintiffs and Appellants,                 Super. Ct. No. 1-08-CV103426)

           v.                                      ORDER MODIFYING OPINION

GRANITE ROCK COMPANY,                              NO CHANGE IN JUDGMENT

        Defendant and Appellant.



        THE COURT:
        It is ordered that the opinion filed herein on November 30, 2-16, be modified as
follows:
        1. On the backing sheet, line 5, the word ―Appellant‖ is changed to ―Appellants‖.


        2. On the backing sheet, starting on line 5 and ending on line 9, counsel for
Plaintiffs and Appellants starting with ―Littler Mendelson‖ is deleted and the following is
inserted in its place:
        Sohnen Law Office
        Havey Sohnen
        Patricia Kelley
        Joseph Clapp
         3. On the backing sheet, starting on line 10 and ending on line 13, counsel for
Defendant and Appellant starting with ―Sohnen Law‖ is deleted and the following is
inserted in its place:
         Littler Mendelson
         Garry G. Mathiason
         Alan S. Levins
         Allison S. Hightower
         Laura E. Hayward

         There is no change in the judgment.




Dated:                                     ____________________________________
                                                      RUSHING, P.J.




WE CONCUR:




_________________________________
   PREMO, J.




_________________________________
   ELIA, J.
Filed 11/30/16 (unmodified version)
                                CERTIFIED FOR PUBLICATION


             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


BRIAN DRISCOLL et al.,                               H037662
                                                    (Santa Clara County
        Plaintiffs and Appellants,                   Super. Ct. No. 1-08-CV103426)

           v.

GRANITE ROCK COMPANY,

        Defendant and Appellant.



        Graniterock is a concrete company that manufactures, delivers and pours concrete.
Its customers include home owners, private construction contractors, and contractors on
large public works projects, such as schools, airport runways, and roads.
        Concrete is delivered by Graniterock‘s concrete mixer drivers, who assist in
loading the concrete into the mixer trucks, delivering the concrete to customers, and
pouring the concrete at a construction site.
        Graniterock concrete drivers Brian Driscoll, Kenneth Gallardo, Donald Hopf,
Chris Nowak and Brad Storm filed this action on January 17, 2008 on behalf of a class of
approximately 200 current and former concrete mixer drivers. Plaintiffs claim that
Graniterock failed to provide concrete mixer drivers with off-duty meal periods and
failed to provide them with one additional hour of pay for meal periods during which the
drivers opted to continue working.
        Plaintiffs sought restitution under Business and Professions Code section 17200,
penalties under the Private Attorney General Act (ibid.) and damages and penalties under
Labor Code sections 226.7 and 512, subdivision (a). Plaintiffs‘ principal claim is that
Graniterock failed to provide off-duty meal periods and/or failed to pay plaintiffs one
additional hour of pay for duty-free meal periods.
       The trial court granted class certification of approximately 200 concrete drivers
employed by Graniterock on or after January 7, 2004. The court designated two
subclasses, the first being defined as ―All ready-mix concrete drivers employed by
Granite Rock Company on or after January 17, 2004, who signed a Graniterock form
entitled ‗On Duty‘ Meal Period Agreement.‖ The second subclass was defined as ―All
ready-mix concrete drivers employed [sic] Granite Rock Company on or after
January 17, 2004, who either never signed a Granite Rock form entitled ‗On Duty‘ Meal
Period Agreement or who later provided a written notice purporting to revoke the
Agreement.‖
       The class action was tried without a jury, and the court returned a verdict in favor
of Graniterock. The court found that Graniterock did not violate labor laws in its meal
period policies.
                          STATEMENT OF THE FACTS AND CASE
       The concrete that Granitrock produces is a perishable product that cannot be
stored. It is mixture of rock, sand and cement. When water is added to the mixture, it
creates a chemical reaction that causes the mixture to harden. For this reason, when there
is concrete in the drum of a mixer truck, the drum must rotate at all times to prevent
hardening. In addition, freshly batched concrete must be poured within 60-90 minutes to
ensure its structural integrity. One of the duties of the concrete mixer drivers is to monitor
the rotation of the truck drum.
       Graniterock provided its concrete mixer drivers with the option of signing an on-
duty meal period agreement pursuant to Industrial Wage Commission (IWC) Wage Order
No. 1, which states: ―when the nature of the work prevents an employee from being
relieved of all duty and when by written agreement between the parties an on-the-job paid
                                              2
meal period is agreed to.‖ (IWC wage order No. 1-2001, subd. 11(C).) IWC Wage
Order 1 requires that such agreement must be revocable by the employee at any time.
(Ibid.)
          The On-Duty Meal Period Agreement that was provided to and signed by
plaintiffs provides: ―I understand that I may revoke this Waiver Agreement at any time
by providing at least one (1) working day‘s advance notice to my Manager of my
decision.‖ Graniterock represented at trial that one day‘s notice was the shortest amount
of time for it to process a revocation of the agreement and provide an off-duty meal
period.
          Graniterock also advised the concrete drivers that if they did not sign an On-Duty
Meal Period Agreement and were asked to work through a meal, they would receive one
hour of special pay called ―Code 38 Pay, in addition to any pay required by the collective
bargaining agreements.‖ Code 38 pay equaled one hour of pay.
          All concrete drivers acknowledged receiving and reviewing this policy. Drivers
were also notified of their right to a 30-minute, off-duty meal period through IWC Wage
Order and other mandatory state and federal postings at each Graniterock branch. The
drivers testified that they understood that they could revoke the On-Duty Meal Period
Agreement at any time. The evidence at trial showed that only three Graniterock drivers
revoked their On-Duty Meal Period Agreement, and each of those drivers received an
off-duty meal period and Code 38 pay.
          Prior to trial, plaintiffs brought a motion for summary adjudication of
Graniterock‘s affirmative defense of the existence of the On-Duty Meal Period
Agreement. The court found that the one-day notice provision contained in the On-Duty
Meal Period Agreement failed to satisfy the requirement in Wage Order 1, Section 11(C)
that the Agreement allow employees to revoke the agreement at any time. Because the
agreement was not legally compliant in its revocation provision, the court found the
agreement invalid as a matter of law.
                                                3
       Following trial, the Court found that ―Plaintiffs failed to prove that the drivers
were forced, expected, or trained to involuntarily sign [On-Duty Meal Period
Agreements] or to miss off-duty meal periods against their will.‖ The court noted that
―numerous drivers testified that despite signing an [On-Duty Meal Period Agreement],
they understood that they could get a meal at any time without revoking their [On-Duty
Meal Period Agreement]. For [example], [driver] Bruce Nicholson understood he could
ask for an off-duty meal at any time because it was in the Handbook and ‗it was told to
us.‘ Kelly Sohns knew she could ask for time off without revoking her [On-Duty Meal
Period Agreement]. Brian Sheridan testified that ‗anytime we want lunch all we have to
do is ask for it.‘ Richard Walrod knew he could have asked for lunch off on the same
day, but chose not to.‘ ‖
       Following consideration of the evidence at trial, including the testimony of
numerous concrete mixer drivers and dispatchers, the court concluded that plaintiffs had
not proven that Graniterock forced any driver to forgo an off-duty meal period. The court
stated: ―Graniterock has affirmatively notified its employees that they are entitled to a 30-
minute off-duty meal period free from its control through its policies, postings and
communications. Graniterock did nothing to interfere with drivers‘ ability to take an off-
duty meal period. Rather, drivers did not take off-duty meal periods because they did not
want them. No one went hungry—they ate during their downtime. While dispatchers did
not ask each employee every day whether s/he wanted an off-duty meal period, every
driver stated that if asked s/he would say s/he did not want one. The law does not require
that the dispatchers ask each day because that would be an exercise in futility.‖ The court
further found that ―Plaintiffs failed to prove that the drivers were forced, expected, or
trained to involuntarily sign [On-Duty Meal Period Agreements] or to miss off-duty meal
periods against their will.‖
       The trial court entered judgment in favor of Graniterock and plaintiffs filed this
appeal. In addition, Graniterock filed a cross-appeal of the trial court‘s grant of
                                              4
plaintiffs‘ motion for summary adjudication of Graniterock‘s affirmative defense related
to the On-Duty Meal Period Agreement.
                                        DISCUSSION
       With regard to the primary appeal, plaintiffs argue that the trial court erred when it
found that Graniterock provided off-duty meal periods in compliance with Labor Code1
sections 226.7 and 512, subdivision (a).
       In the cross-appeal, Graniterock argues that the trial court erred when it granted
plaintiffs‘ motion for summary adjudication of Graniterock‘s affirmative defense related
to the On-Duty Meal Period Agreement.
Plaintiffs’ Appeal
       Plaintiffs raise two distinct arguments on appeal. First, plaintiffs argue as they did
in the trial court that Granitetock failed to meet its legal obligation to provide a 30-minute
duty-free lunch period to its concrete mixer drivers. In addition, plaintiffs assert a new
argument on appeal that Graniterock offered illegal financial incentives to induce its
mixer drivers to forgo their duty-free meal period in lieu of increased pay.
       Standard of Review
       ―The trial court‘s factual findings . . . are subject to limited appellate review and
will not be disturbed if supported by substantial evidence.‖ (Williams v. Saunders (1997)
55 Cal.App.4th 1158, 1162.) ―When a trial court‘s factual determination is attacked on
the ground that there is no substantial evidence to sustain it, the power of an appellate
court begins and ends with the determination as to whether, on the entire record, there is
substantial evidence, contradicted or uncontradicted, which will support the
determination.‖ (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874, original
emphasis omitted.) As long as there is substantial evidence, the appellate court must
affirm, even if the reviewing justices personally would have ruled differently if they had


       1
           All unspecified statutory references are to the Labor Code.
                                              5
presided over the proceedings below and even if other substantial evidence supports a
different result. (Id. at p. 874.)
       An appellate court is ―not in a position to weigh any conflicts or disputes in the
evidence. Even if different inferences can reasonably be drawn from the evidence, [the
appellate court] may not substitute [its] own inferences or deductions for those of the trial
court. [Its] authority begins and ends with a determination of whether, on the entire
record, there is any substantial evidence, contradicted or uncontradicted, which will
support the judgment. [Citations.] Therefore, we must consider all of the evidence in the
light most favorable to the prevailing party, giving that party the benefit of every
reasonable inference from the evidence tending to establish the correctness of the trial
court‘s decision, and resolving conflicts in support of the trial court‘s decision.‖ (Estate
of Beard (1999) 71 Cal.App.4th 753, 778-779.) Under the substantial evidence standard,
the appellate court will not reweigh the evidence. That function belongs exclusively to
the trier of fact (the trial judge in cases such as this that are tried to the court). (Shamblin
v. Brattain (1988) 44 Cal.3d 474, 479.)
       Contrary to plaintiffs‘ argument, de novo review is not the proper standard in this
case. The underlying facts were the subject of significant dispute at trial, and we must
review this case to determine whether substantial evidence supports the trial court‘s
factual findings. (SFPP, L.P. v. Burlington Northern & Santa Fe Ry. Co. (2004) 121
Cal.App.4th 452, 462.)
               Failure to Provide Duty-Free Meal Period
       Plaintiffs argue that the judgment should be reversed because Graniterock did not
provide its concerted mixer drivers with a 30-minute off-duty meal period as required by
law, and Graniterock illegally induced drivers to take on-duty meal periods by providing
them financial incentives to do so.
       California law governing wages and working conditions is embodied, to a large
extent, in section 1171 et seq. and the regulations (wage orders) promulgated by IWC.
                                               6
Section 226.7, subdivision (b) states: ―An employer shall not require an employee to
work during any meal or rest . . . period mandated pursuant to an applicable. . . order of
the Industrial Welfare Commission.‖ Section 512, subdivision (a) states that employers
must provide employees with meal breaks of not less than 30 minutes if they work shifts
of more than five hours per day and a second 30–minute meal break if they work shifts
longer than 10 hours per day.
       An employer that fails to provide an employee with a meal or rest period in
accordance with a state law or applicable regulation or order of, inter alia, the IWC, must
pay the employee an additional hour of pay for each workday the meal period is not
provided. (§ 226.7, subd. (c); Murphy v. Kenneth Cole Productions, Inc. (2007) 40
Cal.4th 1094; see IWC wage order No. 4, subd. 11(B).)
       Plaintiffs argue that the trial court‘s conclusion that Graniterock provided its
concrete mixer drivers a 30-minute duty-free lunch break, and as a result, was not
required to pay its employees an extra hour of pay as required by law, is inconsistent with
the rationale in Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004
(Brinker). In Brinker, nonexempt employees in restaurants owned by Brinker
Corporation brought a class action asserting numerous wage and hour claims. One such
claim was related to the employer‘s obligations to provide meal periods for its employees
that complied with labor laws. In particular, the employees asserted that Brinker failed to
provide them the meal breaks, or premium wages in lieu of meal breaks, required by law.
(See § 226.7 )
       The Brinker court found that ―[a]n employer‘s duty with respect to meal breaks
under both Section 512, subdivision (a) and Wage Order No. 5 is an obligation to provide
a meal period to its employees. The employer satisfies this obligation if it relieves its
employees of all duty, relinquishes control over their activities and permits them a
reasonable opportunity to take an uninterrupted 30-minute break, and does not impede or
discourage them from doing so. What will suffice may vary from industry to industry,
                                              7
and we cannot in the context of this class certification proceeding delineate the full range
of approaches that in each instance might be sufficient to satisfy the law.‖ (Brinker,
supra, 53 Cal.4th at p. 1040.)
       ―On the other hand, the employer is not obligated to police meal breaks and ensure
no work thereafter is performed. Bona fide relief from duty and the relinquishing of
control satisfies the employer‘s obligations, and work by a relieved employee during a
meal break does not thereby place the employer in violation of its obligations and create
liability for premium pay under Wage Order No. 5, subdivision 11(B) and Labor Code
section 226.7, subdivision [(c)].‖ (Brinker, supra, 53 Cal.4th at pp. 1040-1041.)
       Plaintiffs assert that Graniterock did not provide its mixer drivers with an off-duty
meal period, because it did not ―relieve [them from] all duty and relinquish any employer
control over [them] and how [they] spend their time.‖ (Brinker, 53 Cal.4th at pp. 1038-
1039.) Plaintiffs further argue that Graniterock‘s policy of making an off-duty meal
period available to its employees at their election was not enough to satisfy its legal
obligation.
       Here, the court considered all of the evidence presented at trial and concluded that
Graniterock provided its concrete mixer drivers with an off-duty lunch period that was
compliant with the law. The evidence at trial demonstrated that Graniterock‘s employees
received a legally compliant Employee Handbook that contained information about the
availability and right to a 30-minute off-duty meal period, and the concrete mixer drivers
acknowledged that they had reviewed the policy. In addition, the evidence showed that
Graniterock had posted the applicable Wage Order advising employees of their right to
meal periods since 2000.
       There was no evidence at trial that any mixer driver was ever denied an off-duty
meal period when he or she requested it. The evidence showed that any concrete mixer
driver who did not sign an On-Duty Meal Period Agreement, or revoked such agreement
was provided one hour of pay as required by law. The court further found that because
                                              8
concrete mixer drivers were aware of their rights and exercised those rights in requesting
and always receiving off-duty meals when they wanted them, Graniterock had met its
legal obligation with regard to meal periods.
       In addition to the testimony of the concrete mixer drivers regarding off-duty lunch
requests, the court considered the testimony of Graniterock dispatchers who received
such requests. Dispatcher Patty Carter testified that concrete mixer drivers told her that
they preferred to continue working rather than take an off-duty lunch because they
considered the off-duty lunch as a form of ―punishment.‖ Dispatcher Ed Yancy testified
that concrete mixer drivers pleaded with him to instead be allowed to go home early, or
to ―help the batch man,‖ ―help . . . in the shop,‖ to shovel debris, or ―anything that needs
to be done rather than take their lunch.‖ Dispatcher Terri Galvin testified that when she
told her concrete mixer drivers to take off-duty meals, ―they [would] get angry with me.‖
Dispatcher David Fontes testified that mixer drivers would denote ―no lunch‖ on their
timecards with a ―happy face‖ symbol.
       It is important to note that that Graniterock‘s policies regarding meal periods are
particularly appropriate in the context of the ready mix concrete industry. As the court
noted in Brinker, ―[w]hat [off-duty meal practices that] will suffice may vary from
industry to industry, and we cannot in the context of this class certification proceeding
delineate the full range of approaches that in each instance might be sufficient to satisfy
the law.‖ (Brinker, 53 Cal.4th at pp. 1038-1039.) We will interpret Brinker with the
special circumstances found by the trial court. We mean by that that the issue of different
industry practices is a factual determination. Here, while on the job, mixer drivers
manage a rolling drum of freshly batched concrete at any given time throughout their
work day. When a driver is able to take a duty-free lunch period is dependent on the state
of the concrete in his or her truck, and the nature of the construction job to which the
driver is attending.


                                                9
       The trial court noted that the nature of the concrete mixing and delivering industry
made the scheduling of off-duty meal periods in advance nearly impossible. The law is
clear that an employer is not required to schedule meal periods in order to comply with
their legal meal-period obligations. (Kenny v. Supercuts, Inc. (N.D. Cal. 2008) 252
F.R.D. 641, 646). Moreover, an employer is not required to guarantee or ensure that an
employee take a 30-minute off-duty meal period. Rather, as set forth in Brinker, the
employer‘s duty is to provide a 30 minute off-duty lunch period that is free from an
employer‘s control. (Brinker, supra, 53 Cal.4th at pp. 1040-1041.)
       Plaintiffs argue that the trial courts‘ finding that ―Graniterock is only required to
relieve from its control those drivers who elected to take an off-duty meal period‖
demonstrates that it held Graniterock to a lower standard than set forth in Brinker, which
held that in order to satisfy the requirements of section 512, subdivision (a) and Wage
Order No. 5, an employer must ―relieve[] its employees of all duty,‖ therefore violating
the holding of Brinker. (Brinker, supra, 53 Cal.4th at pp. 1040-1041.) However, the
court prefaced this finding with the statement, ―[w]hether an employee was provided the
opportunity to take an off-duty meal in which the employer relinquishes all control is a
separate issue from whether an employee who decided to work during his meal period
and/or was under the employer‘s control was paid for that time.‖ The court found that
when a concrete-mixer driver requested to have an off-duty meal period, Graniterock
granted that request, and relinquished all control of the employee for the 30-minute off-
duty period. This satisfies the requirement as set forth in Brinker.
       Plaintiffs argue that Graniterock‘s policies actually require its employees to waive
a minimum labor standard of an off-duty meal period. However, the trial court
specifically found that the employees were not required to waive an unwaivable right;
rather, mixer drivers were given the opportunity to take an off-duty meal period each day,
and could freely choose to take or not take such meal period. Graniterock‘s policy of


                                             10
providing an off-duty lunch period, and allowing its employees to choose to take such
period at their discretion is consistent with the holding of Brinker.
Illegal Financial Incentives
       Plaintiffs argue for the first time on appeal that Graniterock violated labor laws by
providing illegal financial incentives to its employees to work through their lunch period.
Plaintiffs contend that despite the fact that it did not raise this issue at trial, it may argue it
in this court because ―the existence of [financial] incentives is essentially factual,‖ and
the question of whether those incentives illegally induced mixer drivers to work through
their lunch period is a question of law that may be considered for the first time on appeal.
       Plaintiff is correct that the existence of financial incentives is factual, and that is
precisely why we will not consider the new argument on appeal. The facts of this case,
including the various reasons that drivers chose to work through lunch, were highly
contested. Issues that are dependent on disputed facts may not be argued for the first
time in the appellate court. ― ‗The rule is well settled that the theory upon which a case is
tried must be adhered to on appeal. A party is not permitted to change his position and
adopt a new and different theory on appeal. To permit him to do so would not only be
unfair to the trial court, but manifestly unjust to the opposing litigant. [Citations].‘ ‖
(Richmond v. Dart Industries, Inc. (1987) 196 Cal.App.3d 869, 874.)
       Here, plaintiffs did not argue at trial that Graniterock provided illegal financial
incentives to induce the mixer drivers to forgo their off-duty meal period. As a result,
Graniterock did not have notice of the issue, nor did it argue or present evidence
specifically addressing the issue. Plaintiffs are precluded from raising this argument for
the first time on appeal. We note that even if plaintiffs were to make this argument on
appeal, there is no undisputed evidence in the record to support a claim that financial
incentives were used to induce drivers to forgo an off-duty meal period.




                                                11
Conclusion
       The trial court properly entered judgment in favor of Graniterock.2 There was
substantial evidence presented at trial to support the trial court‘s finding that Graniterock
provided its concrete mixer drivers with an off-duty meal period as required by law.
Graniterock’s Cross-Appeal
       Graniterock brings a cross-appeal of the trial court‘s grant of plaintiffs‘ motion for
summary adjudication of its affirmative defense regarding the On-Duty Meal Period
Agreement. The cross-appeal was brought for this court to consider the issue in the event
we reversed the judgment. Because we affirm the judgment, we dismiss the cross-appeal
as moot.
                                       DISPOSITION
       As to Plaintiffs‘ appeal, the judgment is affirmed.
       Graniterock‘s cross-appeal is dismissed as moot.
       Costs are awarded to Graniterock.



                                           ______________________________________
                                                      RUSHING, P.J.

WE CONCUR:


____________________________________
           PREMO, J.

____________________________________
           ELIA, J.


       2
          Because we find that the trial court properly found that Graniterock was not
liable for violations of the Labor Code, we do not consider plaintiffs‘ additional argument
regarding damages.

                                             12
Trial Court:                                  Santa Clara County Superior Court
                                              Superior Court No.: 1-08-CV103426


Trial Judge:                                  The Honorable James P. Kleinberg
                                              The Honorable Joseph Huber



Attorneys for Plaintiffs and Appellant        Littler Mendelson
Brian Driscoll et al.
                                              Garry G. Mathiason
                                              Alan S. Levins
                                              Alison S. Hightower
                                              Laura E. Hayward




Attorneys for Defendant Appellant             Sohnen Law Offices
Granite Rock Company:
                                              Harvey Sohnen
                                              Patricia Kelly

                                              Joseph Clapp




                                         13
