Filed 6/26/15 Abarca v. JK Residential Services CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


FLOR ABARCA,                                                         B256488

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                     Super. Ct. No. BS144978)
         v.

JK RESIDENTIAL SERVICES, INC.,

         Defendant and Respondent.



         APPEAL from a judgment of the Superior Court of Los Angeles County. Richard
L. Fruin, Jr., Judge. Affirmed.
                                                         ______
         Law Offices of Robert Lee and Robert Lee for Plaintiff and Appellant.
         Law Offices of Kevin Jones, Kevin B. Jones and Karen E. Nakon for Defendant
and Respondent.
                                                         ______
      Flor Abarca appeals from the judgment entered after a bench trial in which the
trial court found her an exempt employee and rejected her claim against her former
employer, JK Residential Services, Inc., for wage and hour violations. Abarca contends
that the court should have allowed her to conduct additional discovery and tried the
matter to a jury. She also contends that substantial evidence does not support the exempt
employee finding. We reject her contentions and affirm the judgment.
                 FACTUAL AND PROCEDURAL BACKGROUND
      In October 2011, JK Residential, a residential property management company,
hired Abarca to supervise the operations of 11 to 13 apartment properties. JK Residential
terminated her about nine months later in July 2012. Abarca filed a complaint with the
Labor Commissioner claiming wage and hour violations. The Labor Commissioner
found in Abarca’s favor and awarded her approximately $50,000. JK Residential
appealed to the trial court pursuant to Labor Code section 98.2, subdivision (a), which
provides for de novo review of the Labor Commissioner’s award. After a bench trial, the
court found Abarca was an exempt employee and thus not entitled to the compensation
she sought for wage and hour violations. Abarca filed a notice of appeal. The court
subsequently entered judgment for JK Residential.1
                                     DISCUSSION
      1.      Abarca Did Not Preserve a Claim for Appeal Regarding Discovery
      In a proceeding under Labor Code section 98.2, subdivision (a), the trial court
has discretion whether to allow discovery. (Sales Dimensions v. Superior Court (1979)
90 Cal.App.3d 757, 763.) “[W]here the matter is analogous to a small claims case, i.e.,
the amount in controversy is not great and the issues involved are not complex, the court
should give effect to the policy of the discovery statutes and of the Labor Code by

1
        Abarca filed a notice of appeal on May 21, 2014. The trial court entered judgment
on July 22, 2014. We construe Abarca’s premature notice of appeal as an appeal from
the judgment. (Cal. Rules of Court, rule 8.104(d)(1); see Bosetti v. United State Life Ins.
Co. in City of New York (2009) 175 Cal.App.4th 1208, 1223, fn. 11 [notice of appeal filed
after trial court ruled but before entry of judgment treated as appeal from subsequently
entered judgment].)

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limiting or precluding discovery. [Citation.] But where the amount in dispute is large or
the issues complex, discovery may be appropriate.” (Ibid.)
       Abarca “acknowledges [that] the court record is silent as to the trial court’s rulings
on discovery” and that she did conduct some discovery. She nevertheless contends that
the court “erred in denying [her] critical discovery.” The record, however, does not
reflect that Abarca objected to any ruling by the court regarding discovery or that she
requested but was refused additional discovery. As such, Abarca has not preserved a
claim for appeal related to discovery. (Children’s Hospital & Medical Center v. Bonta
(2002) 97 Cal.App.4th 740, 776 [“‘appellate court will not consider procedural defects or
erroneous rulings where an objection could have been made, but was not[] raised in the
court below’”].)
       Abarca contends that, even though she did not raise a discovery issue in the trial
court, we should address it on appeal. An appellate court has discretion to address a
new theory when it raises a pure question of law. (In re Marriage of Priem (2013)
214 Cal.App.4th 505, 511 [appellate court has discretion to address “theory presented for
the first time on appeal [that] involves only a legal question determinable from facts[,]
which are not only uncontroverted in the record, but which could not be altered by the
presentation of additional evidence”].) The discovery issue raised by Abarca is not a
pure question of law. Whether to allow discovery in a Labor Code section 98.2,
subdivision (a), proceeding is a matter of trial court discretion (Sales Dimensions v.
Superior Court, supra, 90 Cal.App.3d at p. 763), and indeed Abarca did conduct some
discovery. Abarca also suggests that we should decide how much discovery is
appropriate in a Labor Code section 98.2, subdivision (a), proceeding as an issue of
“public and legal concern” and remand the matter for any necessary factual development.
But, because the issue is discretionary (ibid.), it is not subject to an abstract ruling by the
appellate court with a remand for factual development. No basis thus exists for us to
address the new theory on appeal.




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          2.    Trial of the Case to the Court Rather Than a Jury Is Not a Basis for
                Reversal
          Abarca maintains reversal of the judgment is required because “the trial court did
not offer the parties an unconditional right to a jury trial” and “[d]enial of a request for
[a] jury trial on jury triable issues is reversible error per se.” According to Abarca,
however, the court “ordered the parties to explain whether there was a right to a jury
trial.” JK Residential asserts that “[t]here is in fact no record that [Abarca] at any time in
the trial court announced that a jury trial was required” and that Abarca “fails to produce
a record that [jury trial] fees were paid.” Abarca does not respond to these assertions.
And nothing in the appellate record suggests that Abarca maintained that a jury trial was
required or paid any jury trial fees. As a result, trial of the matter to the court rather than
a jury is not grounds for reversal.
          3.    Substantial Evidence Supports the Exempt Employee Finding
          “Labor Code section 98.2 provides for a de novo trial in superior court on appeal
from an order by the Labor Commissioner. On appeal from the judgment of the superior
court, the findings of the Labor Commissioner are entitled to no weight, and review
is of the facts presented to the trial court. [Citation.]” (Nordquist v. McGraw-Hill
Broadcasting Co. (1995) 32 Cal.App.4th 555, 560-561.) Whether an employee is exempt
from wage and hour provisions is a “factual issue” that we review “under the substantial
evidence rule. [Citation.]” (Id. at p. 561.) “Thus, our authority begins and ends with a
determination whether, on the entire record, there is any substantial evidence—that is, of
‘“ponderable legal significance,”’ reasonable, credible and of solid value—contradicted
or uncontradicted, which will support the judgment. As long as there is such evidence,
we must affirm. [Citation.] Moreover, when . . . the evidence is in conflict, the appellate
court will not disturb the findings of the trial court. The court must consider the evidence
in the light most favorable to the prevailing party, giving that party the benefit of every
reasonable inference and resolving conflicts in support of the judgment. [Citation.]”
(Ibid.)



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       “The Industrial Welfare Commission may establish exemptions from the
requirement that an overtime rate of compensation be paid . . . for executive,
administrative, and professional employees, if the employee is primarily engaged in the
duties that meet the test of the exemption, customarily and regularly exercises discretion
and independent judgment in performing those duties, and earns a monthly salary
equivalent to no less than two times the state minimum wage for full-time employment.”
(Lab. Code, § 515, subd. (a).) The executive exemption at issue here provides that “[a]
person employed in an executive capacity means any employee: [¶] (a) Whose duties and
responsibilities involve the management of the enterprise in which he/she is employed or
of a customarily recognized department or subdivision thereof; and [¶] (b) Who
customarily and regularly directs the work of two or more other employees therein; and
[¶] (c) Who has the authority to hire or fire other employees or whose suggestions and
recommendations as to the hiring or firing and as to the advancement and promotion
or any other change of status of other employees will be given particular weight; and
[¶] (d) Who customarily and regularly exercises discretion and independent judgment;
and [¶] (e) Who is primarily engaged in duties which meet the test of the exemption. . . .
[¶] (f) Such an employee must also earn a monthly salary equivalent to no less than two
(2) times the state minimum wage for full-time employment. Full-time employment is
defined in Labor Code section 515(c) as 40 hours per week.” (Cal. Code Regs, tit. 8,
§ 11040, subd. 1(a)(1).)
       Substantial evidence supports the trial court’s determination that Abarca came
within the executive exemption. Abarca’s duties and responsibilities involved
management of a subdivision of JK Residential. As a property supervisor, Abarca was in
charge of the operations of a portfolio of JK Residential’s properties, 11 to 13 apartment
buildings totaling 400 to 500 units. She served as the direct contact between the building
managers of those properties and the corporate office. She supervised the managers, as
well as maintenance workers for her portfolio, which together were about 16 people.
That supervision included setting the schedule for maintenance workers and reviewing
and approving requests from managers to hire vendors to perform work at the properties.

                                             5
She participated in the interviewing process for apartment managers and maintenance
workers and made recommendations to the human resources department regarding hiring
and firing. She gave warnings to employees as disciplinary actions, terminated
employees and recommended job transfers when appropriate. Abarca made
recommendations to the corporate office for capital improvements at her properties and
rent increases based on her evaluation of market conditions in a building’s geographic
area. JK Residential paid Abarca a salary of $2,800 per month in two installments
of $1,400. Abarca received this salary even when she took partial days off for
religious services or family obligations. She does not challenge that she earned the
minimum salary as defined by Labor Code section 515, subdivisions (a) and (c), to
qualify her as an exempt employee.
       Abarca contends that, because certain of her properties were without managers
during the time of her employment, she performed the duties of apartment managers,
which were not executive responsibilities as described by the exemption. But the need
for Abarca to cover the duties of apartment managers at times did not eliminate the
necessity for her to perform her own responsibilities as a supervisor, which according to
the evidence generally occupied about 80 percent of a supervisor’s time. Abarca also
maintains that, because JK Residential required her to obtain approval from the corporate
office on certain matters, she did not have the requisite discretion and independent
judgment. The evidence, however, demonstrates that Abarca, as a supervisor, had
discretion and independent judgment over a variety of matters even though at times she
coordinated with human resources or her own supervisor or sought approval for spending
above a certain threshold on property improvements or repairs.




                                             6
                                    DISPOSITION
      The judgment is affirmed. JK Residential is entitled to recover its costs on appeal.
      NOT TO BE PUBLISHED.




                                                ROTHSCHILD, P. J.
We concur:



             CHANEY, J.



             BENDIX, J.*




*
        Judge of the Los Angeles Superior Court, Assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.

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