                       FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 DYLAN STEWART, an                             No. 15-56943
 individual, on behalf of
 himself and all other similarly                D.C. No.
 situated,                               2:13-cv-09458-BRO-SS
            Plaintiff-Appellant,
                                         ORDER CERTIFYING
                  v.                     QUESTIONS TO THE
                                         SUPREME COURT OF
 SAN LUIS AMBULANCE, INC.,                  CALIFORNIA
 a California Corporation,
           Defendant-Appellee.


                       Filed December 29, 2017

   Before: Johnnie B. Rawlinson and N. Randy Smith,
  Circuit Judges, and Edward R. Korman,* District Judge.




     *
       The Honorable Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.
2              STEWART V. SAN LUIS AMBULANCE

                            SUMMARY**


    Certification of Questions to State Supreme Court

   The panel certified the following questions to the
Supreme Court of California:

    1. Under the California Labor Code and applicable
    regulations, is an employer of ambulance attendants
    working twenty-four hour shifts required to relieve
    attendants of all duties during rest breaks, including the
    duty to be available to respond to an emergency call if
    one arises during a rest period?

    2. Under the California Labor Code and applicable
    regulations, may an employer of ambulance attendants
    working twenty-four hour shifts require attendants to be
    available to respond to emergency calls during their meal
    periods without a written agreement that contains an on-
    duty meal period revocation clause? If such a clause is
    required, will a general at-will employment clause satisfy
    this requirement?

    3. Do violations of meal period regulations, which require
    payment of a “premium wage” for each improper meal
    period, give rise to claims under sections 203 and 225 of
    the California Labor Code where the employer does not
    include the premium wage in the employee’s pay or pay
    statements during the course of the violations?


    **
       This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
            STEWART V. SAN LUIS AMBULANCE                    3

    The panel withdrew submission of the appeal, stayed
proceedings, and directed the Clerk to administratively close
the docket pending further order.


    ORDER CERTIFYING QUESTIONS TO THE
      SUPREME COURT OF CALIFORNIA

     Before this panel of the United States Court of Appeals
for the Ninth Circuit is an appeal concerning the applicability
of meal- and rest-period regulations to the employers of
ambulance attendants working twenty-four hour shifts. Also
before the panel is the issue of whether meal period violations
may form the basis for unpaid wages and improper wage
reporting claims under sections 203 and 226 of the California
Labor Code. As we are aware of no controlling state
precedent that resolves these issues, we respectfully ask the
Supreme Court of California to exercise its discretion to
accept and decide the certified questions below.

                   I. Questions Certified

   Pursuant to Rule 8.548 of the California Rules of Court,
we request that the Court answer the following questions:

   1. Under the California Labor Code and applicable
      regulations, is an employer of ambulance attendants
      working twenty-four hour shifts required to relieve
      attendants of all duties during rest breaks, including
      the duty to be available to respond to an emergency
      call if one arises during a rest period?

   2. Under the California Labor Code and applicable
      regulations, may an employer of ambulance
4           STEWART V. SAN LUIS AMBULANCE

       attendants working twenty-four hour shifts require
       attendants to be available to respond to emergency
       calls during their meal periods without a written
       agreement that contains an on-duty meal period
       revocation clause? If such a clause is required, will a
       general at-will employment clause satisfy this
       requirement?

    3. Do violations of the meal period regulations, which
       require payment of a “premium wage” for each
       improper meal period, give rise to claims under
       sections 203 and 226 of the California Labor Code
       where the employer does not include the premium
       wage in the employee’s pay or pay statements during
       the course of the violations?

   We understand that the Court may reformulate our
questions, and we agree to accept and follow the Court’s
decision. Cal. R. Ct. 8.548(b)(2), (f)(5).

                      II. Background

     Dylan Stewart worked as an Emergency Medical
Technition (EMT) for San Luis Ambulance, Inc. (SLA) for
over a year. As an SLA employee, Stewart had a written
agreement (the twenty-four hour shift agreement) with SLA
indicating that he was required to “remain on duty, and ready
to respond to any emergency calls that c[a]me in, throughout
all [twenty-four] hours of [his] shifts.” Stewart acknowledges
that he was paid for all twenty-four hours of his shifts with
SLA—irrespective of whether he was responding to
emergencies; engaging in other employment related duties; or
eating, sleeping, or enjoying leisure at the ambulance station.
            STEWART V. SAN LUIS AMBULANCE                    5

    During the course of his employment with SLA, Stewart
also worked several shifts of less than twenty-four hours.
These shorter shifts were subject to a separate agreement
called a “Day Car Agreement.” Both the twenty-four hour
shift agreement and the Day Car Agreement had language
stating that meal periods would be paid and meals would be
taken on-duty. However, the Day Car Agreement also had
explicit language stating that an employee could revoke the
on-duty meal period agreement at any time. The twenty-four
hour shift agreement did not have this revocation language,
but it did have an at-will employment clause indicating that
either party could terminate the employment at any time.

    SLA employees were authorized to take their meal
periods and rest periods at any time they were not attending
to an emergency call. And SLA required its employees to
keep a log of each day’s emergency calls. Stewart never
reported being unable to take a meal period or rest period, and
his activity logs indicate that every day he had time to take
meal and rest periods during his employment. Nonetheless,
SLA required Stewart to remain available to respond to an
emergency call during meal and rest periods.

    Stewart voluntarily terminated his employment and
subsequently brought suit alleging violations of federal and
state labor law. At issue here are four California state law
claims for violation of regulations as to meal periods, rest
periods, failure to timely pay wages, and inaccurate wage
statements. The district court granted summary judgment to
SLA on each of these claims, and following resolution of
other federal- and state-law claims remaining in the lawsuit,
Stewart timely appealed.
6            STEWART V. SAN LUIS AMBULANCE

    On appeal, Stewart seeks reversal of the award of
summary judgment against him, and he asks for summary
judgment to be entered in his favor on each of the four state-
law claims. With respect to his meal- and rest-period claims,
he seeks a judgment that he is entitled to compensation for an
additional two hours of work for each day that he worked
without proper meal or rest periods. See Cal. Lab. Code
§ 226.7(c). He further claims that he is entitled to an award of
statutory penalties for SLA’s failure to timely pay or
accurately reflect these premium wages in his pay statements.
See Cal. Lab. Code §§ 203, 226(e)(1). Having considered the
parties’ briefs and arguments, we are now convinced that
resolution of these claims turns on the proper interpretation
of Wage Order 9, in light of the apparent tension between
Monzon v. Schaefer Ambulance Service, Inc., 273 Cal. Rptr.
615 (Cal. Ct. App. 1990), and Augustus v. ABM Security
Services, Inc., 385 P.3d 823 (Cal. 2016), as modified on
denial of rehearing March 15, 2017. We therefore request
clarification in order to decide this case.

             III. Explanation of Certification

    This case presents two sets of issues that are unresolved
under state law. The first involves the application of rest- and
meal-period regulations to ambulance attendants working
twenty-four hour shifts of duty. The second, which is
contingent on resolution of the first issues in favor of Stewart,
turns on whether a meal period violation may form the basis
for a claim for unpaid wages or improper wage reporting.
Each of these issues will be addressed in turn.
            STEWART V. SAN LUIS AMBULANCE                     7

                 A. Rest and Meal Periods

    No controlling precedent establishes whether ambulance
attendants working twenty-four hour shifts may be required
to remain available for emergency calls during rest and meal
periods. Although the Court recently addressed rest periods
in Augustus, interpreting Wage Order 4 to require off-duty
rest periods, see Augustus, 385 P.3d at 825–26, Augustus
does not control the interpretation of Wage Order 9. Wage
Order 9 includes express exemptions to certain overtime
requirements in the context of ambulance attendants working
twenty-four hour shifts of duty. Cal. Code Regs. tit. 8,
§ 11090, subd. 3(K). Section 3(K) and Monzon are similarly
not controlling—neither directly addresses payment for meal
or rest periods. The parties’ dispute turns on the open
question of whether section 3(K) and Monzon by implication
limit the applicability of the rest-period (Cal. Code Regs. tit.
8, § 11090, subd. 12 & Cal. Lab. Code § 226.7) and meal-
period (Cal. Code Regs. tit. 8, § 11090, subd. 11(C))
requirements of Wage Order 9 as applied to ambulance
attendants working twenty-four hour shifts of duty.

                       1. Rest Periods

    In Augustus, the Court, interpreting Wage Order 4, held
that “during rest periods employers must relieve employees
of all duties and relinquish control over how employees
spend their time.” 385 P.3d at 829, 832 (emphasis added)
(“The ordinary meaning of ‘rest’ conveys, in this context, the
opposite of work. ‘Rest’ is defined by the American Heritage
Dictionary as the ‘[c]essation of work, exertion, or activity.’
So, ordinarily a reasonable reader would understand ‘rest
period’ to mean an interval of time free from labor, work, or
any other employment-related duties.” (quoting Rest,
8           STEWART V. SAN LUIS AMBULANCE

American Heritage Dictionary (4th ed. 2000)). The Court
further held that on-call rest periods—where an employee
remains subject to being called into action at all times during
the break—are also incompatible with the text of Wage Order
4 and California Labor Code section 226.7. Id. at 832–33.
The rest period language of Wage Order 9 is identical to that
in Wage Order 4. Compare Cal. Code Regs., tit. 8, § 11040,
subd. 12, with Cal. Code Regs. tit. 8, § 11090, subd. 12.

    Nonetheless, importing this interpretation into Wage
Order 9 would create a conflict with section 3(K), which
affirmatively contemplates “[twenty-four ]hour shifts of duty”
for ambulance attendants. Cal. Code Regs. tit. 8, § 11090,
subd. 3(K) (emphasis added). Additionally, for the past
twenty-seven years, California courts have permitted
employers of ambulance attendants to exclude sleep periods
from compensable time without a written agreement, despite
the fact that the employer retains control throughout the
twenty-four hours to wake the employees from their sleep
every time an emergency arises. See Monzon, 273 Cal. Rptr.
at 632–34 (applying a federal regulation allowing deduction
of sleep time from compensable time where there is an
agreement between the parties to do so and the employee
receives a minimum of five hours of uninterrupted sleep
during the shift). This precedent, unique to the ambulance
industry, makes the applicability of Augustus to Wage Order
9 a difficult open question.

                      2. Meal Periods

    Meal periods present a similarly difficult issue. In
addition to the issues addressed above, Monzon—though
technically a sleep-time case—interpreted Wage Order 9
consistent with a federal regulation allowing exclusion of
            STEWART V. SAN LUIS AMBULANCE                   9

sleep periods and meal periods from compensable time
without a written agreement. Monzon, 273 Cal. Rptr. at
630–31, 633 (citing 29 C.F.R. § 785.22). Thus, the issue of
meal periods is even more closely linked to existing
precedent.

    Nonetheless, it is unclear whether California would
extend Monzon to meal periods—even though the two
circumstances are governed by the same federal regulation
incorporated in Monzon. The Court recently “limited
[Monzon] to its facts.” Mendiola v. CPS Sec. Solutions, Inc.,
340 P.3d 355, 363 (Cal. 2015). If the relevant “facts” to
which Monzon is limited include the “realities of [the
ambulance] industry” the Court may well extend Monzon to
cover the circumstances at issue here. Id. But the Court could
just as easily limit Monzon to its precise facts—sleep periods
for ambulance drivers and attendants. Since Monzon, the
Court has made clear that “courts should not incorporate a
federal standard concerning what time is compensable
‘[a]bsent convincing evidence of the [Industrial Welfare
Commission’s] intent.’” Id. at 364 (first alteration and
emphasis in original) (quoting Morillion v. Royal Packing
Co., 995 P.2d 139, 150 (Cal. 2000)). Monzon did not identify
evidence of the Industrial Welfare Commission’s intent
before looking to federal law. See Monzon, 273 Cal. Rptr. at
632–33. If the Court requires evidence of intent as a
prerequisite to extending Monzon to meal periods, it may be
difficult for SLA to meet the high bar identified in Mendiola.
Accordingly, the panel seeks clarification of these open
questions under California law.
10          STEWART V. SAN LUIS AMBULANCE

     B. Unpaid Wages and Improper Wage Reporting

    If the Court determines that SLA violated applicable
regulations by failing to include a clause expressly allowing
for revocation of on-duty meal periods in its twenty-four hour
shift agreement, the Court should determine whether the
failure to pay the premium wage associated with such a
violation may also form the basis for a waiting time penalty
claim under California Labor Code section 203 and an
inaccurate reporting claim under section 226. In Murphy v.
Kenneth Cole Productions, Inc., 155 P.3d 284, 297 (Cal.
2007), the Court characterized the extra hours paid for meal
period violations as a “premium wage” rather than a penalty,
but, in Kirby v. Immoos Fire Protection, Inc., 274 P.3d 1160,
1167–68 (Cal. 2012), the Court held that a meal-period
violation is not tied to the nonpayment of wages. Since these
rulings, courts have been inconsistent in their interpretations.
Several have concluded that a meal period violation properly
forms the basis for claims under sections 203 and 226—
pointing to Murphy. See Finder v. Leprino Foods Co., No.
1:13-CV-2059 AWI-BAM, 2015 WL 1137151, at *3–*5
(E.D. Cal. Mar. 12, 2015) (collecting cases). Yet others have
rejected such claims—relying on Kirby. See Jones v.
Spherion Staffing LLC, No. LA CV11-06462 JAK (JCx),
2012 WL 3264081, at *2–*9 (C.D. Cal. Aug. 7, 2012)
(collecting cases).

    If the Court finds Kirby more analogous and rejects a
meal-period violation as an adequate basis for a section 203
or 226 claim, this decision would provide the panel with an
adequate alternative basis for affirming the district court on
this issue. Alternatively, if the Court finds that a meal-period
violation may provide the basis for a section 203 or 226 claim
in light of Murphy, the panel will still be required to
            STEWART V. SAN LUIS AMBULANCE                    11

determine whether the district court erred in concluding that
the alleged violation was not willful or intentional. But this
issue will be significantly easier to determine in light of the
Court’s ruling on the applicability of the meal-period
regulations to ambulance attendants. Thus, a ruling from the
Court would greatly clarify the law and aid the panel in
rendering its decision.

             IV. Administrative Information

    The names and addresses of counsel are listed in the
appendix at the end of this order. Cal. R. Ct. 8.548(b)(1). If
the Supreme Court of California accepts this request, the
Plaintiff-Appellant, Dylan Stewart, should be deemed the
petitioner.

    The Clerk is hereby directed to transmit forthwith to the
Court the original and ten copies of this order as well as a
certificate of service on the parties. Cal. R. Ct. 8.548(d). The
Clerk shall also transmit along with this request, ten copies of
the district court’s “Order Re Defendant’s Motion for
Summary Judgment and Plaintiff’s Motion for Summary
Judgment,” “Order Denying Plaintiff’s Motion for
Reconsideration and Denying as Moot Plaintiff’s Motion to
Certify for Interlocutory Appeal,” and the appellate briefs of
the parties. The Clerk shall provide additional record material
if so requested by the Supreme Court of California. Cal. R.
Ct. 8.548(c).

    The case is withdrawn from submission, and further
proceedings in this court are stayed pending final action by
the Supreme Court of California. The parties shall notify the
Clerk of this Court within three days after the Court accepts
or rejects certification, and again within three days if the
12          STEWART V. SAN LUIS AMBULANCE

Court renders an opinion. The panel retains jurisdiction over
further proceedings.

V. Stay of Proceedings and Withdrawal of Submission

    In light of our decision to certify the issues set forth
above, the submission of this appeal is withdrawn, and all
further proceedings in this case before our court are stayed
pending final action by the Supreme Court of California, save
for any petition for rehearing regarding this order. The Clerk
is directed to administratively close this docket, pending
further order. The parties shall notify the Clerk of this court
within fourteen days of the Supreme Court of California’s
acceptance or rejection of certification, and again, if
certification is accepted, within fourteen days of the Supreme
Court of California’s issuance of a decision.

  QUESTIONS            CERTIFIED;         PROCEEDINGS
STAYED.
            STEWART V. SAN LUIS AMBULANCE   13

                         Appendix

Counsel for Plaintiff-Appellants

Hernaldo J. Baltodano, Esquire, Attorney
Baltodano & Baltodano LLP
733 Marsh Street
Suite 110
San Luis Obispo, CA 93401

Peter R. Dion-Kindem
Peter R. Dion-Kindem, P.C.
Suite # 900
21550 Oxnard Street
Woodland Hills, CA 91367

Allison Lee Ehlert, Esquire
Ehlert Appeals
P.O. Box 1024
El Cerrito, CA 94530

Paul Keith Haines, Esquire, Attorney
Haines Law Group, APC
2274 E. Maple Avenue
Suite A
El Segundo, CA 90245

Jeff Holmes
Jeff Holmes, Esq.
3311 E. Pico Boulevard
Los Angeles, CA 90023
14         STEWART V. SAN LUIS AMBULANCE

Counsel for Defendant-Appellee

Sean McLoughlin
Hill, Farrer & Burrill, LLP
One California Plaza
37th Floor
300 South Grand Avenue
Los Angeles, CA 90071-3147
