Filed 11/27/18; Certified for Publication 12/19/18 (order attached)




                   COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                               DIVISION ONE

                                         STATE OF CALIFORNIA



KILEIGH CARRINGTON,                                              D072392

         Plaintiff and Respondent,

         v.                                                      (Super. Ct. No. 37-2014-00018637-
                                                                 CU-OE-CTL )
STARBUCKS CORPORATION,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Katherine

A. Bacal, Judge. Affirmed.

         Akin, Gump, Strauss, Hauer & Feld, Jonathan P. Slowik, Gregory W. Knopp, and

Rex S. Heinke for Defendant and Appellant.

         Sullivan Law Group, Eric K. Yaeckel, William B. Sullivan, and Andrea J. Torres-

Figueroa for Plaintiff and Respondent.

         Kileigh Carrington filed a complaint against her former employer, Starbucks

Corporation, asserting a representative cause of action under the Private Attorney General
Act (PAGA) (Labor Code, § 2698 et seq.),1 claiming Starbucks failed to properly provide

meal breaks or pay meal period premiums for certain employees in violation of

sections 226.7 and 512. In a bifurcated bench trial on plaintiff's action, the trial court

determined Starbucks was liable for these violations and imposed penalties of $150,000,

with 75 percent thereof payable to the Labor and Workforce Development Agency

(LWDA) and 25 percent payable to Carrington and the employees she represented in the

action. The trial court entered judgment in Carrington's favor. Starbucks appeals,

contending Carrington failed to prove she is an aggrieved employee and failed to prove a

representative claim. We conclude there was no legal error and find that substantial

evidence supports the judgment; accordingly, we affirm.

                                      BACKGROUND

I.     Complaint

       In her complaint, Carrington alleged that Starbucks implemented a meal period

policy under which employees who worked slightly more than five hours were not

provided meal breaks within the first five hours of work and were not paid meal period

premiums when meal breaks were not timely provided, in violation of sections 512,

subdivision (a), and 226.7, subdivisions (a) and (b). As a result, Starbucks failed to

provide accurate itemized wage statements in violation of section 226 and failed to

provide employees with all wages earned and unpaid at termination in violation of

sections 201, 202, and 203. Carrington sought civil penalties and unpaid wages under



1      All statutory references are to the Labor Code unless otherwise specified.
                                              2
sections 2699, subdivision (a), and 558, subdivision (a), and an award of attorney fees

and costs under section 2699, subdivision (g)(1). Carrington attached to her complaint

two letters she previously sent to the LWDA and Starbucks providing written notice of

her claims, as required under section 2699.3, subdivision (a)(1).

II.    Starbucks's Summary Judgment Motions

       Starbucks moved for summary judgment on Carrington's claims, arguing that

Carrington's meal break claim failed because, although her time records reflected she

twice started a break after working more than five hours and was not paid a meal

premium, Carrington could not recall the details surrounding those shifts, including

which supervisors or managers were working or why she did not begin her breaks until

more than five hours had elapsed. Starbucks argued that her lack of memory regarding

the specific instances of these shifts, coupled with Starbucks's policy to provide

employees scheduled to work shifts longer than five hours with compliant meal periods,

indicated summary judgment should be awarded in Starbucks's favor. The court denied

summary judgment, finding that Carrington created triable issues as to whether Starbucks

failed to provide timely meal breaks with her declarations that Starbucks's standard

policy was that no one could take a break without receiving permission and her manager

or shift supervisor always dictated when she could take a break.

       Starbucks subsequently filed a "motion regarding trial of representative claim,"

contending a representative PAGA action was not appropriate because no uniform policy

or practice could explain why employees took a late break; as such, individualized

inquiries into each late meal break were required. Starbucks submitted more than 100

                                             3
declarations from various California employees in support of this motion. The court

denied the motion, finding it was one "for summary judgment or adjudication in

disguise," and Starbucks had failed to comply with the procedural requirements for

summary judgment motions. (See, e.g., Code Civ. Proc., § 437c.)

III.   Trial

       A. Carrington's Case

               1. Starbucks's Person Most Knowledgeable

       Carrington's primary witness at trial was Maryann J., Starbucks's vice president of

partner resources2 for the retail operations, west division, whom Starbucks had

previously designated as its person most knowledgeable on Starbucks's meal period

policies and practices applicable in California. (See Code Civ. Proc., § 2025.230.)

       Maryann testified that partners are required to document their daily time by

punching or clocking in and out at the start and end of their shifts, and at the start and end

of their breaks, using either the store's point of service system (cash register) or the

manager's back office laptop. Starbucks retains records documenting the employees'

punches. Maryann testified that these records were tied to each partner's partner number

and would accurately reflect each partner's punches in and out of the system.

       Store managers were authorized to edit partners' time records and used a "punch

communication log" to document any such changes. These changes are incorporated into

the time records retained by Starbucks.



2      Starbucks refers to its nonexempt employees as "partners."
                                               4
       Maryann testified that, during the limitations period, Starbucks used two different

computerized scheduling systems to schedule partner shifts: the ALS and GLS systems.

The GLS system was the primary system Starbucks used to create work schedules.

Maryann explained that the "system will generate meal breaks on the schedule if a

partner is scheduled more than five hours." The meal breaks will always be scheduled to

start before the beginning of the fifth hour.3 Maryann testified that the scheduling

system will not schedule a meal break for a partner scheduled to work exactly five hours

or less in a workday.4 She admitted that there are occasions when a store partner is

scheduled to work less than five hours but ultimately works more than five hours. On

such occasions, the computerized scheduling system does not schedule a meal period.

       Maryann testified that Starbucks uses the computerized scheduling system to

generate "daily coverage reports" which are posted in stores to communicate to partners

when they should take breaks. There is no other documentation provided to the partners

to give them notice of a scheduled meal period. Maryann testified that, ordinarily, a store

manager would print out a daily coverage report and the shift supervisor would put it on a

clipboard, modifying it throughout the day to record adjustments to the day's schedule.




3      Maryann testified that partners are entitled to a timely meal break.

4      Whether meal periods were automatically scheduled for employees scheduled to
work exactly five hours was disputed. Starbucks subsequently elicited testimony from a
systems support employee who testified that Starbucks's scheduling system would
automatically schedule a meal period for a shift of exactly five hours. Starbucks's partner
resources manager testified she did not know.
                                             5
As modified, the daily coverage reports remained within the individual stores; Starbucks

maintains no formal record of any changes.

       Maryann confirmed that the "partner guide" Starbucks provides to every newly-

hired partner states, " 'All partners in nonexempt jobs receive an uninterrupted, 30-minute

meal break if scheduled to work a shift of a minimum duration.' " She explained that, in

California, a shift of minimum duration is a work shift scheduled to be in excess of five

hours. She stated that "[a] shift scheduled to be five hours directly would not be eligible

for a meal break period."

       Maryann confirmed that Starbucks's "partner resources manual"—a reference

guide provided to managers to provide them with in-depth explanations of Starbucks's

policies—similarly provided, " '[a]n unpaid . . . uninterrupted meal break of 30 minutes'

duration will be provided to each nonexempt partner . . . if scheduled to work a shift of

minimum duration.' " Maryann acknowledged that a partner's meal period could be

impacted in a number of circumstances, such as a sudden customer rush or a store partner

calling in sick for a scheduled shift. In instances where a partner's meal break was

required to be cut short, Starbucks's policy was to either provide the partner with a

"proper" meal break or pay a meal break premium.5

       Maryann testified that Starbucks provided its California store managers with the

"SM 100 Partner Resources Practices California Work Rules Supplement" as a training


5      Maryann testified that Starbucks interchangeably uses the terms "meal period
premium" and "meal period penalty" to refer to the compensation a partner would be
owed if he or she was not timely provided a meal break. (§ 226.7, subd. (b).) In payroll
reports, this compensation was denominated a "break premium."
                                             6
tool with respect to the company's California-specific meal period policies and practices.

That document states the following policies:

          "The following circumstances will result in payment of a break
          penalty:

          [¶] . . . [¶]

          "The partner is scheduled for a shift of five (5) hours or less, but is
          directed by a shift supervisor, assistant store manager, or store
          manager to work more than five hours and the partner is not
          provided a meal break before the end of the fifth hour.

          "The following circumstances will not result in payment of a break
          penalty:

          [¶] . . . [¶]

          "The partner is scheduled to work a shift of five (5) hours or less, is
          not scheduled for a meal break, and is not directed by a manager to
          work more than five hours, but the actual hours worked are slightly
          more than five (5) hours because of punching in slightly early or
          punching out slightly late." (Italics added.)

       Carrington referred to this written policy as the "slightly more" policy.6 The

following exchange occurred:

          "Q. Now, the slightly more policy and practice allows the store
              managers to refuse to pay a meal period premium where certain
              events have occurred, correct?
          "A. It provides them with an example of when they wouldn't pay a
              premium, yes."

       Maryann testified that partners would not be allowed to ignore their scheduled

break time and take a meal break at another time: "They should follow whatever is on

6       Carrington also used the term "slightly more" to identify the category of work
shifts at issue in the action with an initial or total duration of between five hours and one
minute (5:01) and five hours and 14 minutes (5:14), that is, "slightly more" than five
hours.

                                               7
the [daily coverage report] unless they're—unless they make an agreement with their

manager or shift to adjust."7 Partners were not permitted to waive their meal breaks.

       In the event a partner's time report indicated the partner punched out after his or

her scheduled punch-out time, the store manager was responsible for having a

conversation with the partner to determine what caused the untimely punch out and to

determine, on a case-by-case basis, whether a meal period or a meal period premium was

warranted.

       Starbucks's computer scheduling system enabled managers to generate meal break

premium reports listing every shift for which a potential meal break premium should be

paid. Maryann testified managers were expected to generate this report weekly, each

time they ran payroll. In response to this report, the manager should "[h]ave a

conversation with the partner, look at the punch communication logs, have a conversation

with the shift, figure out what happened on that day to be able to determine if the—the

meal premium should be paid based on a work-related reason or if it was in error."

       The following exchange occurred:

          "Q. If a store partner works an initial work shift in excess of five
              hours without a meal period, would Starbucks's practice
              provide them with a meal period premium?

          "A. They should be provided with a break or a premium."

       Maryann stated that Starbucks's policy was for a partner to be paid for all time

worked, even if that time was not authorized in advance. Maryann explained:


7      "Shift" in this instance appears to refer to a shift supervisor, who worked under the
store manager to supervise partners.
                                             8
          "A. Our expectation would be that if a partner works more than five
              hours, they get either a premium or they get their break.

          "Q. Even if they weren't scheduled for one?

          "A. Yeah. I mean, if it's work related, then absolutely."

       However, Maryann repeatedly noted that supervisors should talk to partners to

determine the reason the partners worked beyond their scheduled shift, and that the

decision to pay a premium is ultimately left to the store manager's discretion.

Summarizing this line of questioning, Maryann was asked: "Okay. Okay. Let me try to

short-circuit it. I believe what you're saying is that the ultimate decision on whether to

provide a meal break penalty comes down to the store manager, correct?" Maryann

responded: "They are the decisionmaker, yes."8 Maryann also noted that Starbucks

"headquarters" would not be involved in overseeing these daily discussions between

managers and partners on whether a meal premium was due.

       Maryann acknowledged that Starbucks had changed its policies relating to shifts

just over five hours in October 2015 (after plaintiff sent her initial PAGA notice),

eliminating the "slightly more" policy.




8      Maryann provided an example where it would be appropriate not to pay a meal
period premium: "The first thing that comes to my mind is if a partner was scheduled to
work, say, five hours, right, just right up to the minute, and at the end of their shift they
decided to make a partner beverage for themselves rather than going to clock out, and it
took them longer than they thought, and they clocked out at 5:01 or 5:02. [¶] So that
could be an example of where the partner would say, 'Hey, you know, I forgot'—'I made
the beverage before I clocked out, so, you know, I would agree to not be paid a penalty
and/or take a break.' "
                                              9
               2. Carrington

       Carrington was employed by Starbucks as a barista between approximately

August 2013 and December 2013. She trained briefly at two different San Diego-area

stores before beginning her employment at the newly opened West Point Loma

Boulevard store.

       Her time records reflect that during her employment with Starbucks, she worked

41 shifts. During at least two of these shifts, Carrington started a meal period after

working more than five hours and did not receive a premium payment.

       Carrington testified that she accurately recorded her work time while employed at

Starbucks. She was familiar with the daily coverage report but testified she did not

necessarily see it during each shift because it was not always posted in the same place; it

would "move around." Her shift supervisor or manager on duty would tell her when her

break was; she knew her breaks were typically scheduled around the three- to four-hour

point into her shift.

       She was required to obtain approval from her shift supervisor or manager prior to

beginning her meal periods:

           "Q. Do you recall whether you were required to wait for a shift
               supervisor's instruction before you started the meal period?

           "A. Oh, yeah. I wouldn't just clock out and go. It would be a
               discussion between them and I when to clock in or clock out.
               Just because of coverage reasons, you can't leave your position
               just unattended."

Carrington never refused to begin a meal period when instructed to do so. Once

instructed to start a meal break, she would "immediately" punch out to start the break.

                                             10
Carrington never delayed in punching out to make herself a partner beverage. Given the

store's layout, Carrington said it was not possible that it would take three minutes

between the time she was instructed by a store manager to punch out, and the time she

actually punched out. She does not recall ever having discussions with her manager or

anyone else about voluntarily delaying a meal break, and she never voluntarily delayed

taking a meal break.

       Carrington would work past the end of her scheduled shift "a lot of times," at the

request of her supervisor, when the store was busy and coverage was needed. Carrington

did not specifically remember the circumstances of the days when she was not afforded a

break until after the beginning of her fifth hour of work. She testified she never

complained about having a late meal break because "people would get backed up on

breaks because we would get so busy. So we were all in it together, you know. So all—I

never—I never complained. I just kept working, as directed."

              3. Carrington's Expert Witness

       Carrington retained a statistician to provide expert witness testimony. He was

asked to determine the number of shifts and pay periods containing either initial shift

segments or total uninterrupted shift lengths of between five hours and one minute (5:01)

through five hours and 14 minutes (5:14). He analyzed data from 8.3 million shifts and

determined that there were over 133,000 shifts (1.6 percent) with this duration. Of these

shifts, nearly 102,000 (76 percent) did not result in a meal break penalty payment.

Carrington's expert testified that his analysis was validated by the analysis of Starbucks's



                                             11
expert, who opined that 74 percent of shifts slightly in excess of five hours did not

receive a meal break penalty.

       B. Starbucks's Case

              1. Starbucks's "Partner Resources Manager"

       Starbucks called Dora R., its "partner resources manager," who performs human

resources services for Starbucks, including training new managers on Starbucks's

California meal break policies and practices. Dora testified that Starbucks's policy is

"that any partner who's scheduled for a shift of more than five hours is entitled and will

be scheduled for a meal break." Starbucks's automated time system schedules meal

breaks automatically into the daily schedules. For partners scheduled for shifts of less

than five hours' duration, meal breaks are not automatically scheduled. If a partner with a

shift scheduled for less than five hours' duration needs to work longer than five hours,

their shift supervisor must either schedule a meal break for them (by writing it into the

daily schedule) or "award[] the one-hour penalty."

       The store manager is ultimately responsible for the decision whether to pay the

partner a meal period premium. The store managers are trained to talk to the store

partners before making these decisions, but Dora explained that Starbucks is not able to

ensure these conversations occur "in every situation" given the number of stores and

partners. Dora testified that Starbucks does not require store managers to document—on

the daily coverage reports—that they investigated to determine whether a meal break

should have been scheduled or a meal break premium paid. However, Dora later stated

that if a partner's time report reflected a missed meal break, or a meal break that was not

                                             12
timely provided, the store manager should record the reason why in a "meal break

analysis report":

          "Q. Does Starbucks retain the meal break analysis reports?

          "A. Yes.

          "Q. And within those meal break analysis reports, it's true that the
              manager should record the reason why each partner's time
              worked reflects a missed meal break?

          "A. Yes, they should.

          "Q. Okay. And that also includes where a timely meal break has
              been missed, correct?

          "A. Correct."9

              2. Starbucks's Expert

       Starbucks retained an expert witness who analyzed over 5.7 million shift records

from 27,146 employees in 490 stores, purportedly representing 25 percent of California

stores. Of those shifts, only 0.61 percent had first segment durations between five hours,

one minute (5:01) and five hours, six minutes (5:06), and 0.31 percent of all shifts had

total shift durations between five hours, one minute (5:01) and five hours, six minutes

(5:06). Analyzing only this small subset of shifts (total or first segment durations of




9     It does not appear that any "meal break analysis reports" were introduced as
evidence at trial.
                                             13
5:01-5:06), he concluded that meal period penalties were paid in 26 percent of these

shifts.10

       Starbucks's expert testified that there was no information in the data to identify

whether an employee had the opportunity to take a meal and chose not to do so: "it's not

as though there is a flag on the data that says, you know, 'I took the—I had the

opportunity, but I waived a meal.' " He further testified his data analysis indicated "there

is a statistically significant variation between store managers" meaning, "there are some

store managers . . . that maybe never pay a meal premium [to partners who worked a shift

or shift segment of 5:01-5:06 but did not take a meal break]. There are others that always

pay a meal period premium."

              3. Starbucks's Systems Engineer

       Starbucks elicited testimony from Holly K., a systems engineer who provided

support for the company's GLS system. She testified that the GLS system is designed to

automatically populate schedules with a duration of five hours or more with a meal break.

              4. West Point Loma Boulevard Starbucks Store Manager

       Stacey S. testified she was the current manager of the West Point Loma Boulevard

store (where Carrington previously worked, under different management). Stacey

testified that partners who work more than five hours without a meal break are entitled to

premium pay. She testified that employees are expected to clock out promptly.


10     In his expert report, Starbucks's expert stated that, as part of his analysis, he also
ran the same analysis with a shift duration of five hours, one minute (5:01) to five hours,
ten minutes (5:10) and "confirmed [his] conclusions and opinions in this report do not
change."
                                             14
However, she was aware of instances (not under her management) in which a partner for

"personal reason[s]" stayed past the five-hour mark without clocking out either to go

home or for a meal break. She emphasized that such instances were "not very common."

       C. Trial Court's Determination of Liability

       Based on the testimonial and documentary evidence admitted at trial, the court

found Carrington had established she individually suffered at least two meal period

violations. While the violations were minimal, they were ascertainable, and because they

were ascertainable, the de minimis exception should not apply. The court found that

Carrington had established a representative claim primarily through the testimony of

Maryann, whom Starbucks had designated as its person most knowledgeable on the

practices at issue, and whom the court found to be credible.

       D. Penalty Phase

       Following the liability phase, the court accepted the parties' briefing on penalties.

Plaintiff argued penalties ranging from $25 to $75 per violation were appropriate and

requested the imposition of nearly $70 million in total penalties, over $25 million of

which was attributable to plaintiff's section 512 and 226.7 claims. Starbucks argued that

the evidence at trial demonstrated "exemplary meal break compliance" and emphasized

the trial court had found only "greatly minimal" violations; as such, only a minimal

penalty—no more than $200,000—should be imposed.

       In its tentative assessment of the penalty, the court emphasized that Starbucks's

violations were minimal and Starbucks attempted full compliance with California's meal

period requirements. Nonetheless, the court found penalties were warranted for the

                                             15
violations that Carrington established. Rather than imposing the full penalty of $50 per

violation, which the court noted in this instance would be unjust, arbitrary, and

oppressive, the court imposed a penalty of only $5 per violation. Noting that plaintiff's

and defendant's experts found similar instances of violations, the court found

approximately 30,000 violations had occurred and imposed a penalty of $150,000. The

court declined to impose penalties for the additional statutory violations plaintiff had

pleaded.

       E. Judgment

       After issuing a statement of decision, the court entered judgment in favor of

Carrington both in her individual and representative capacities and assessed a total

penalty of $150,000 against Starbucks, with 75 percent of that amount to be paid to the

LWDA and the remaining 25 percent to be paid to the aggrieved employees, consistent

with section 2699, subdivision (i). The court indicated costs and fees would be

determined by subsequent motion.

IV.    Appeal

       Starbucks filed the current appeal. Carrington subsequently filed a cross appeal.

The appeals were consolidated, but the parties later stipulated to the dismissal of

Carrington's cross appeal. As such, only Starbucks's challenges to the judgment remain.

       Starbucks argues that it demonstrated "comprehensive meal break policies and

practices that exceed the requirements of California law," that Carrington

"overwhelmingly" took compliant breaks and has "no evidence" of meal break violations,

and that the data reflecting other aggrieved employees likewise demonstrates "exemplary

                                             16
meal break compliance." Starbucks contends the judgment should be reversed because

Carrington failed to prove she is an aggrieved employee and failed to prove a

representative claim.

                                        DISCUSSION

I.     Applicable Law

       A. Standard of Review

       "[I]n reviewing a judgment based upon a statement of decision following a bench

trial, 'any conflict in the evidence or reasonable inferences to be drawn from the facts will

be resolved in support of the determination of the trial court decision. [Citations.]'

[Citation.] In a substantial evidence challenge to a judgment, the appellate court will

'consider all of the evidence in the light most favorable to the prevailing party, giving it

the benefit of every reasonable inference, and resolving conflicts in support of the

[findings]. [Citations.]' [Citation.] We may not reweigh the evidence and are bound by

the trial court's credibility determinations. [Citations.] Moreover, findings of fact are

liberally construed to support the judgment. [Citation.]" (Estate of Young (2008)

160 Cal.App.4th 62, 75-76; accord, Sav–On Drug Stores, Inc. v. Superior Court (2004)

34 Cal.4th 319, 334 [" 'questions as to the weight and sufficiency of the evidence, the

construction to be put upon it, the inferences to be drawn therefrom, the credibility of

witnesses . . . and the determination of [any] conflicts and inconsistencies in their

testimony are matters for the trial court to resolve' "].)

       We "start with the presumption that the record contains evidence sufficient to

support the judgment; it is the appellant's burden to demonstrate otherwise." (Baxter

                                               17
Healthcare Corp. v. Denton (2004) 120 Cal.App.4th 333, 368.) As such, the appellant is

required to provide a summary of all of the evidence, not merely his or her own evidence,

with citations to the record. (Cal. Rules of Court, rule 8.204(a)(1)(C); Foreman & Clark

Corp. v. Fallon (1971) 3 Cal.3d 875, 881 (Foreman & Clark Corp.).)11

       "Questions of statutory interpretation, and the applicability of a statutory standard

to undisputed facts, present questions of law, which we review de novo. [Citation.]"

(Jenkins v. County of Riverside (2006) 138 Cal.App.4th 593, 604.)

       B. PAGA

       "Under the Labor Code, the [LWDA] and its constituent departments and

divisions are authorized to collect civil penalties for specified labor law violations by

employers. [Citation.] To enhance the enforcement of the labor laws, the Legislature

enacted PAGA in 2003." (Home Depot U.S.A., Inc. v. Superior Court (2010)

191 Cal.App.4th 210, 216 (Home Depot).) In doing so, the Legislature "declared that

adequate financing of labor law enforcement was necessary to achieve maximum

compliance with state labor laws, that staffing levels for labor law enforcement agencies

had declined and were unlikely to keep pace with the future growth of the labor market,



11      Starbucks neglected to include in the record (among other things) a copy of
plaintiff's expert's declaration. Carrington argued this evidence lent significant support to
the judgment and Starbucks's failure to include it justified dismissal of the appeal.
Starbucks responded that this argument is "frivolous" and the evidence is "not relevant,"
although Starbucks included its own expert's declaration in the record. While we decline
to dismiss the appeal, we find that, in failing to include these documents in the appellate
record and in failing to recognize evidence adduced at trial unfavorable to its arguments
on appeal (as discussed further, post), Starbucks did not fully comply with California
Rules of Court, rule 8.204(a)(1)(C).
                                             18
and that it was therefore in the public interest to allow aggrieved employees, acting as

private attorneys general, to recover civil penalties for Labor Code violations, with the

understanding that labor law enforcement agencies were to retain primacy over private

enforcement efforts." (Arias v. Superior Court (2009) 46 Cal.4th 969, 980 (Arias).)

       Under PAGA, "an 'aggrieved employee'—a person affected by at least one Labor

Code violation committed by an employer—[may] pursue penalties for all the Labor

Code violations committed by that employer." (Huff v. Securitas Security Services USA,

Inc. (2018) 23 Cal.App.5th 745, 751 (Huff).) Previously, such civil penalties could be

collected only by the LWDA. (Home Depot, supra, 191 Cal.App.4th at p. 216.)

Seventy-five percent of any penalties collected by a PAGA representative are distributed

to the LWDA, while the remaining 25 percent are distributed to the aggrieved employees.

(§ 2699, subd. (i).) Because PAGA allows a representative plaintiff to recover civil

penalties on behalf of the state, "[a] PAGA representative action is . . . a type of qui tam

action." (Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 382.)

Statutory class action requirements are not applicable to PAGA claims. (Arias, supra,

46 Cal.4th at p. 975.)

       C. California Meal Break Requirements

       "An employer may not employ an employee for a work period of more than five

hours per day without providing the employee with a meal period of not less than

30 minutes, except that if the total work period per day of the employee is no more than

six hours, the meal period may be waived by mutual consent of both the employer and

employee." (§ 512, subd. (a).) An employer who fails to provide a required meal break

                                             19
"shall pay the employee one additional hour of pay at the employee's regular rate of

compensation for each workday that the meal . . . period is not provided." (§ 226.7,

subd. (c).) "[A]n employee is entitled to the additional hour of pay immediately upon

being forced to miss a . . . meal period." (Murphy v. Kenneth Cole Productions, Inc.

(2007) 40 Cal.4th 1094, 1108.)

       An employer's obligation to provide a meal period to its employees is satisfied "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." (Brinker Restaurant Corp. v. Superior Court

(2012) 53 Cal.4th 1004, 1040 (Brinker).) "[T]he 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 . . . ." (Id. at pp. 1040-1041.) However,

"if the employer knows that meal breaks are missed, shortened, or unduly delayed

because the employer has instructed the employee to work, or has otherwise impeded the

taking of breaks, [the employer's] duty is contravened, absent a suitable waiver or

agreement by the employee." (Safeway, Inc. v. Superior Court (2015) 238 Cal.App.4th

1138, 1155.) "[U]nder those circumstances, the employee is 'immediately' entitled to the

premium wage, without any demand or claim to the employer . . . ." (Ibid.)

       An initial violation of these meal period requirements subjects the employer to a

civil penalty of $50 "for each underpaid employee for each pay period for which the

                                              20
employee was underpaid in addition to an amount sufficient to recover underpaid wages."

(§ 558, subd. (a)(1); Brewer v. Premier Golf Properties, LP (2008) 168 Cal.App.4th

1243, 1253-1254 [§ 558 establishes penalties for employers violating meal and rest break

requirements]; Thurman v. Bayshore Transit Management, Inc. (2012) 203 Cal.App.4th

1112, 1152-1153 (Thurman) [§ 558 sets forth civil penalties for missed rest periods].)

II.    Carrington Proved She Is an Aggrieved Employee

       Starbucks contends that Carrington failed to demonstrate she is an aggrieved

employee with an individual claim. Starbucks asserts three, related arguments:

(1) Carrington never experienced the "specific violation" she alleges; (2) Starbucks

provided her the requisite breaks; and (3) the alleged violations were de minimis and thus

not actionable. We conclude all these arguments lack merit.

       A. Carrington Experienced the Violation Alleged

       Carrington's time records established that on November 2, 2013 and December 22,

2013, she worked more than five hours without taking a meal break and did not receive a

premium payment. Although Carrington admitted she did not remember the details

surrounding those shifts, she testified that she accurately recorded her work time while

employed at Starbucks; she was required to obtain approval from her supervisor prior to

beginning her meal break; she never refused to begin a meal break when instructed to do

so; and once instructed to start a meal break, she would "immediately" punch out to start

the break. This is substantial evidence supporting the trial court's conclusion that

Starbucks did not provide Carrington meal breaks as required by law in these instances.

(Estate of Young, supra, 160 Cal.App.4th at pp. 75-76.)

                                             21
       Starbucks insists that Carrington never suffered the "specific violation" alleged in

her complaint and at trial. According to Starbucks, "Carrington repeatedly made clear

before trial that she sought to challenge Starbucks'[s] purported 'policy' of refusing to pay

a premium in one situation: when partners are scheduled to work five hours or less but

unexpectedly work slightly longer without taking a meal break." Starbucks contends

Carrington did not experience this specific violation—because for the one shift she

worked more than five hours without ever taking a meal break, she was paid a premium,

and for the two other shifts in which she worked more than five hours, she did take a

meal break (albeit late, after the start of her fifth hour of work). Starbucks also points out

that, on these latter two occasions, Carrington was originally scheduled to work shifts

longer than five hours, and as such should have been scheduled to take a timely break;

Starbucks contends these shifts are thus outside of the violation she has alleged.

       Starbucks's argument fails because it does not accurately describe Carrington's

claims. As authority for its position that Carrington's "theory concerns only certain shifts

in which a meal break is 'never provided,' " Starbucks cites Carrington's trial brief, in

which she stated, "Ms. Carrington alleges that on specific—and limited—work shifts,

Starbucks'[s] uniform policies and practices violate [sections] 226.7 and 512, among

other statutes. For example, it is undisputed that (1) Starbucks never schedules (and thus

never 'provides') a meal period for its employees who are scheduled to work a shift of

5 hours or less, and (2) where the referenced employee actually works 'slightly more' than

5 hours, no meal period is ever scheduled, and no meal period penalty is ever provided to

the impacted employee." In another portion of her trial brief, Carrington stated, "The

                                             22
primary issue is whether Starbucks'[s] practice (including its verified policies) of refusing

to provide either (1) timely meal periods or (2) meal period premiums, is illegal. For

example, Starbucks admits to possessing a written policy where store partners who

(a) were scheduled by Starbucks to work '5 hours or less,' but (b) actually worked

'slightly more than 5 hours,' are not provided a meal period, or a meal period premium."

When read in context of the entire case, these statements cannot be construed so narrowly

as to exclude Carrington's claimed violation that on two occasions she received a late

meal period without being paid a meal period premium.

       The operative complaint averred that California law prohibits an employer from

employing an employee for a work period of more than five hours a day without

providing the employee with a meal period, and that an employer who fails to provide the

meal breaks "as required" must pay the employee the premium payment. The complaint

further averred that "employees were denied the protections and benefits of the Labor

Code and IWC Wage Order(s) due to Defendant's standard practices," that "Defendant

possessed (and possesses) a Meal Period Policy which affirmatively states that a Meal

Period Payment will not be administered where an employee works 'slightly more' than

5 hours without being provided a meal period," and that Starbucks's "institutional and

established practices . . . are illegal, in that Plaintiff and all other aggrieved employees

were denied proper and/or timely meal periods and/or meal period payments." (Italics

added.) The operative complaint identifies the following common issues: "Whether

[Starbucks] failed to provide its employees with statutorily-compliant meal periods in

violation of, inter alia, . . . section[s] 510 and 226.7, in that [Starbucks's] written policies

                                               23
are not compliant with California law" and "[w]hether [Starbucks] failed to properly

provide meal period premiums in accordance with the law." Carrington's PAGA letter to

the LWDA similarly stated, "Starbucks failed to comply with . . . sections 226.7 and 512,

in that it possessed (and possesses) a Meal Period Policy which affirmatively states that a

Meal Period Payment will not be provided where an employee works 'slightly more than

5 hours.' This policy/practice violates California law, as confirmed in Brinker v. Superior

Court, because it fails to provide a Meal Period prior to the end of an employee's first

five hours of employment." (Italics added.)

       Considering the allegations in the complaint along with the statements in the

PAGA letter and trial brief together, we are not persuaded by Starbucks's claim that

Carrington's action is limited strictly to employees who were originally scheduled to

work shifts of five hours or less. The claims reasonably encompass employees who, like

Carrington, worked slightly more than five hours without being provided a timely meal

break or paid a meal period premium. There was sufficient evidence at trial that

Carrington experienced one of the violations she alleges because she was twice provided

meal breaks after more than five hours of work. Provision of a late meal period does not

satisfy California's meal period requirements: "[A]bsent waiver, section 512 requires a

first meal period no later than the end of an employee's fifth hour of work . . . ."

(Brinker, supra, 53 Cal.4th at p. 1041, italics added.) Provision of a meal period later

than the end of Carrington's fifth hour of work thus violates section 512 and triggers the

employer's obligation to pay a meal period premium under section 226.7, subdivision (b).



                                              24
        We therefore reject Starbucks's contention that Carrington did not suffer the

"specific" meal break violation she alleged in her complaint or at trial. Carrington's

complaint was not limited to a single type of violation—it instead can fairly be construed

to encompass both late meal breaks and the failure to provide meal break premiums. The

fact that she experienced a violation that may differ from other employees does not bar

her claims here. (Huff, supra, 23 Cal.App.5th at p. 750 [an aggrieved employee who

brings a representative PAGA action "may seek penalties not only for the Labor Code

violation that affected him or her, but also for different violations that affected other

employees"].)

        B. Starbucks Did Not Provide Compliant Meal Breaks

        Starbucks next argues that the evidence at trial showed that Starbucks made proper

breaks available to Carrington, satisfying its obligation to provide a meal break, even if

Carrington neglected to timely take it. Although Starbucks correctly notes it was not

required "to police meal breaks and ensure no work thereafter is performed" (Brinker,

supra, 53 Cal.4th at p. 1040), we reject Starbucks's claims that it satisfied its obligation

here.

        In arguing that it complied with its obligation to provide compliant breaks,

Starbucks ignores the evidence adduced at trial unfavorable to its position, which

supports the trial court's conclusion to the contrary. (Foreman & Clark Corp., supra,

3 Cal.3d at p. 881 [Defendants arguing that " 'some particular issue of fact is not

sustained . . . are required to set forth in their brief all the material evidence on the point

and not merely their own evidence. Unless this is done the error is deemed to be

                                               25
waived.' "].) Carrington testified that when the store was busy and coverage was needed,

at her supervisor's request she would work past the end of her scheduled shift "a lot of

times." She was not permitted to start her break until she received approval from her

supervisor, and she would immediately punch out once her supervisor instructed her to

start her meal break. This testimony, coupled with Carrington's time records

demonstrating she twice worked shifts in excess of five hours without a timely meal

break and without payment of a meal period premium, is substantial evidence to support

the trial court's conclusion that Starbucks did not provide Carrington with a meal break or

the required premium payment on at least two occasions. (See Brinker, supra, 53 Cal.4th

at p. 1040 [employer may not "impede or discourage" employees from taking compliant

meal breaks].)

       C. The De Minimis Doctrine Does Not Preclude Liability Here

       Starbucks contends the violations Carrington experienced were so brief that they

are not actionable, and Starbucks should be entitled to judgment. Our Supreme Court

recently rejected Starbucks's de minimis rule argument, albeit in a different context, in

Troester v. Starbucks Corp. (2018) 5 Cal.5th 829 (Troester). In that case, the Supreme

Court held that California law does not permit application of the de minimis rule where

the employer required the employee to work " 'off the clock' " several minutes (in that

case, four to 10 minutes) per shift. (Id. at p. 835.) However, Troester explicitly left open

the question of "whether there are wage claims involving employee activities that are so

irregular or brief in duration that employers may not be reasonably required to



                                             26
compensate employees for the time spent on them." (Id. at p. 848.) Starbucks argues this

is just such a case. We disagree.

       In Troester, the court recognized that "one of the main impetuses behind the de

minimis doctrine in wage cases is 'the practical administrative difficulty of recording

small amounts of time for payroll purposes.' " (Troester, supra, 5 Cal.5th at p. 848.) On

this record, however, there is no indication of a practical administrative difficulty

recording small amounts of time for payroll purposes. To the contrary, the evidence here

indicated that Starbucks's partners' time records accurately reflected partners' start and

stop times, including the times they punched in and out for meal breaks. In addition,

store managers were trained (1) to talk to partners about any meal periods that were not

timely taken; (2) to determine whether a meal break premium should be paid; and (3) to

document their findings. The fact that store managers did not consistently follow these

practices does not mean it was administratively impossible or impractical to do so. We

reject Starbuck's claim that the de minimis doctrine applies here.

III.   Carrington Proved a Representative Claim

       A. Substantial Evidence Supports the Conclusion That Starbucks Had a Non-
          compliant Policy and Practice

       Again relying only on evidence favorable to it, Starbucks contends the evidence

adduced at trial established it provided timely meal breaks or premium payments and that

Carrington failed to prove a representative claim. We emphasize that it is not our role to

reassess credibility or reweigh the evidence; rather, "our review begins and ends with the

determination as to whether, on the entire record, there is substantial evidence,


                                             27
contradicted or uncontradicted, which will support the trial court's factual

determinations." (Ermoian v. Desert Hospital (2007) 152 Cal.App.4th 475, 501.)

Applying this standard, we conclude the trial court's determination that Carrington

established a violation on a representative basis is supported by substantial evidence.

       Carrington relied on Maryann, whom Starbucks designated in discovery as its

person most knowledgeable, to provide testimony regarding Starbucks's policies and

practices regarding meal breaks. Maryann's testimony established that Starbucks utilized

a computerized scheduling system to schedule partners' shifts. The system automatically

scheduled meal breaks to begin prior to the start of the partner's fifth hour of work, but

only if the partner was scheduled for a shift in excess of five hours. For partners

scheduled to work exactly five hours or less, a meal break would not be pre-scheduled.

Starbucks did not permit partners to waive their meal period.

       In instances where partners worked in excess of five hours but a meal break was

not pre-scheduled, partners relied on their managers or supervisors to provide timely

breaks or to subsequently (at the weekly running of payroll) arrange for the payment of a

meal period premium. Starbucks's written policies emphasized that payment of the meal

period premium was not automatic; the manager must act to pay premiums due.

Maryann and Dora both confirmed the managers are the ultimate decision-makers

delegated authority to determine whether a meal break is provided and whether a

premium is paid. Partner payroll records demonstrated that, in the vast majority of

instances where a partner worked an initial or total shift in excess of five hours but

shorter than five and a quarter hours (such that they were not provided a timely meal

                                             28
break), they were not paid the meal period premium. Indeed, plaintiff's expert concluded

that meal period premiums were unpaid in approximately 76 percent of these instances;

defendant's expert concluded that meal period premiums were paid in approximately

26 percent of these instances (and were thus unpaid in approximately 74 percent of these

instances). Altogether, this is substantial evidence to support the conclusion that

Starbucks's policies and practices resulted in numerous instances in which employees

working "slightly more" than five hours were neither provided meal breaks nor paid meal

period premiums, in violation of the law.

        We likewise conclude that Starbucks has not established legal error.

"[S]ection 512 requires a first meal period no later than the end of an employee's fifth

hour of work . . . ." (Brinker, supra, 53 Cal.4th at p. 1041.) The trial court recognized

that the violations occurred in only a narrow circumstance and described the violations as

"minimal." Nonetheless, the trial court properly concluded that the failure to provide

timely meal breaks or pay meal period premiums to employees working shift durations

slightly in excess of five hours violated California's meal break requirements. (§§ 226.7,

512.)

        B. The Evidence Was Not Overly Individualized to Preclude a Representative
           Finding

        Starbucks contends Carrington's experience was individualized, emphasizing that

she worked with several other untrained, new employees in a newly opened store that

was run "haphazardly" by the then-manager. As such, Starbucks contends, her

experience cannot support the finding of a violation on a representative basis. Because


                                            29
this was a PAGA action, Carrington was not required to fulfill strict class action

procedural requirements. (Arias, supra, 46 Cal.4th at p. 975.) Nonetheless, Carrington's

primary evidence, provided through Starbucks's written policies and the testimony of a

witness Starbucks designated as the one most knowledgeable on the subject, established

that generally applicable corporate policies and procedures resulted in numerous

employees with initial or total shifts slightly in excess of five hours not being provided

with timely meal breaks and not being paid meal period premiums, in violation of the

law. This case is thus distinguishable from South Bay Chevrolet v. General Motors

Acceptance Corp. (1999) 72 Cal.App.4th 861, 897, where plaintiff's PAGA claim failed

because the evidence showed defendant's practices "were not sufficiently uniform to

allow representative treatment." For this reason and for the reasons previously discussed,

we conclude substantial evidence supports the judgment on Carrington's representative

claim.

         C. Starbucks Has Not Established Prejudicial Error with Respect to the Time
            Records

         Starbucks also challenges Carrington's reliance on time records, contending these

records were used improperly to establish meal break violations. In support of this

argument, Starbucks cites a number of federal district court cases concluding that time

records alone cannot establish why breaks were taken late. (E.g., Manigo v. Time Warner

Cable, Inc. (C.D.Cal. Oct. 17, 2017, No. CV 16-06722-JFW (PLA)) 2017 WL 5054368

[concluding time records alone are insufficient to create a material factual dispute

regarding meal period compliance, as they do not indicate why the breaks were taken];


                                             30
Roth v. CHA Hollywood Medical Center, L.P. (C.D.Cal. Oct. 25, 2013, No. 2:12-CV-

07559-ODW) 2013 WL 5775129 [denying class certification under the federal rules of

procedure where plaintiff failed to establish the existence of common questions of

liability through common evidence].) Here, however, partner time records were not used

to establish why breaks were taken late.12 Rather, as discussed ante, Carrington

provided evidence to establish that breaks were taken late (or not at all) as a result of

Starbucks's policies and practices of not automatically scheduling a break or premium

payment for initial shifts with a duration of five hours and relying on managers to either

schedule meal breaks or pay meal period premiums when employees scheduled to work

less than or exactly five hours ultimately worked slightly longer. The time records were

used in conjunction with this other evidence to allow the trial court to quantify potential

violations and in turn devise an appropriate penalty.13 We thus reject Starbucks's

contention that the trial court erred by relying exclusively on the payroll records to

establish liability.

       Starbucks further contends that the time records cannot be used to establish a

rebuttable presumption that violations occurred. (But see Brinker, supra, 53 Cal.4th at

p. 1053 (conc. opn. of Werdegar, J.) ["If an employer's records show no meal period for a

given shift over five hours, a rebuttable presumption arises that the employee was not


12     There is no dispute that the time records do not indicate why a break was missed
or taken late. Both parties' experts testified they were unable to discern from the data
why a break was taken late or not at all.
13     Starbucks does not challenge the penalty imposed.

                                             31
relieved of duty and no meal period was provided."].) Starbucks argues that the

rebuttable presumption discussed in Justice Werdegar's concurring opinion in Brinker "is

not the law" because a concurrence " 'is not binding precedent.' " Even if the

presumption discussed in Justice Werdegar's concurrence is not binding precedent, as

Starbucks argues, it may nonetheless be persuasive, providing guidance to trial courts in

certain circumstances.14 (See People v. Barba (2013) 215 Cal.App.4th 712, 734, fn. 7.)

Nonetheless, because plaintiff here established the existence of Starbucks's noncompliant

meal period practices primarily through Starbucks's written policies and Maryann's

testimony, and not primarily with time records, we decline to determine the nature or

effect of any rebuttable presumption that might be created by such time records.

       Starbucks alternatively argues that, even if the time records could establish a

presumption that violations occurred, it rebutted that presumption by proving that

employees skipped or delayed breaks for personal reasons. In support of this argument,

Starbucks cites testimony of Maryann, Dora, and Stacey, each of whom offered

testimony that an employee might "choose" to work past the start of their fifth hour "for

personal reasons," such as making a partner beverage, using the bathroom, or talking to a

customer. Maryann testified hypothetically that a partner might be scheduled to work

exactly five hours, and before clocking out, choose to make a partner beverage, resulting



14      Starbucks itself cites in its opening brief on appeal to no fewer than 30 federal
district court opinions, most of which were not published in a federal reporter, and which,
"at best," may be described as persuasive. (Castaneda v. Department of Corrections &
Rehabilitation (2013) 212 Cal.App.4th 1051, 1074 [" 'a decision of a federal district court
has no precedential value in this court; at best, it is persuasive authority only' "].)
                                            32
in clocking out a minute or two late. "So that could be an example of where the partner

would . . . 'agree to not be paid a penalty and/or take a break.' " Dora, the partner

resources manager, similarly testified to a hypothetical scenario where a partner's choice

to make a partner beverage prior to clocking out would result in a shift in excess of five

hours that she claimed would not warrant a premium payment. Stacey, the store

manager, testified anecdotally that she had seen this happen: "So if somebody is asked to

clock out and they choose to use the restroom or make themselves a beverage or, you

know, are chatting with a customer" they might work longer than five hours. Stacey

emphasized that this was "not very common" and did "not [happen] often." We cannot

agree with Starbucks that this testimony, which is more conjecture than evidence,

constitutes proof that employees actually skipped or delayed breaks for personal reasons,

sufficient to rebut the violations established by plaintiff.

       Moreover, Carrington was not required to show that Starbucks's policies

universally precluded employees from taking all meal breaks. What is required—and

what Carrington established here—is that Starbucks's generally applicable policies

resulted in noncompliance with meal period requirements. (See Alberts v. Aurora

Behavioral Health Care (2015) 241 Cal.App.4th 388, 409 [noting in discussion of class

certification requirements that "Brinker . . . does not require [claimants] to establish the

universal application of an allegedly illegal policy; rather, a [claimant] need only show a

'consistent[]' application of the policy"]; accord Faulkinbury v. Boyd & Associates, Inc.

(2013) 216 Cal.App.4th 220, 235 [Noting in the class certification context that "the

employer's liability arises by adopting a uniform policy that violates the wage and hour

                                              33
laws. Whether or not the employee was able to take the required break goes to

damages . . . ."].)

       D. Starbucks Was Not Precluded from Presenting Its Defenses

       Starbucks argues that the trial court effectively required it "to prove the specific

circumstances of each of the roughly 30,000 shifts in the time records that could

potentially be violations." This, Starbucks contends, violates due process and strips it of

its right to present a defense. But Starbucks cites no record evidence provided at trial

(other than the anecdotal or hypothetical references mentioned ante) to establish that any

partner shifts worked in excess of five hours without a break were worked for personal

reasons, such that payment of the meal period premium was not required. Nor does

Starbucks argue it sought to introduce evidence that was excluded or disregarded by the

trial court. As such, we find no basis to support Starbucks's claim that it was deprived of

due process because it did not have the opportunity to present defense evidence.

       E. Starbucks's Good Faith Attempt to Comply with the Law Is Reflected in the
          Penalty Imposed

       Although the trial court may have disagreed with Starbucks regarding the issue of

liability, it clearly took the circumstances proffered by Starbucks into consideration when

it imposed the penalty, as evident from the significant reduction of the $50 maximum

penalty (per initial violation) to the penalty imposed—only $5 per initial violation. The

trial court stated this reduction was warranted because imposing the maximum penalty

would be unjust, arbitrary, and oppressive based on Starbucks's "good faith attempts" to

comply with meal break obligations and because the court found the violations were


                                             34
minimal. As the court in Amaral v. Cintas Corp. No. 2 (2008) 163 Cal.App.4th 1157,

1213 recognized, the trial court may "exercise its discretion to award lesser penalties

based on the enumerated considerations" in section 2699, subdivision (e)(2), which

include a determination that imposition of the maximum statutory penalty would result in

an award that is unjust, arbitrary, oppressive, or confiscatory. (Accord Thurman, supra,

203 Cal.App.4th at p. 1136 [affirming trial court's 30 percent reduction of maximum

penalty].)

                                      DISPOSITION

       The judgment is affirmed. Carrington is entitled to costs on appeal.




                                                                           GUERRERO, J.

WE CONCUR:




McCONNELL, P. J.




BENKE, J.




                                            35
Filed 12/19/18
                           CERTIFIED FOR PUBLICATION

                 COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                     DIVISION ONE

                                STATE OF CALIFORNIA

KILEIGH CARRINGTON,                               D072392

        Plaintiff and Respondent,

        v.                                        (Super. Ct. No. 37-2014-00018637-
                                                  CU-OE-CTL)
STARBUCKS CORPORATION,
                                                  ORDER CERTIFYING OPINION
        Defendant and Appellant.                  FOR PUBLICATION


THE COURT:

        The opinion in this case filed November 27, 2018, was not certified for

publication. It appearing the opinion meets the standards for publication specified in

California Rules of Court, rule 8.1105(c), the request pursuant to rule 8.1120(a) for

publication is GRANTED.

        IT IS HEREBY CERTIFIED that the opinion meets the standards for publication

specified in California Rules of Court, rule 8.1105(c); and
      ORDERED that the words "Not to Be Published in the Official Reports" appearing

on page 1 of said opinion be deleted and the opinion herein be published in the Official

Reports.


                                                                      McCONNELL, P. J.

Copies to: All parties




                                            2
