Date: 07-04-2020

Case Style:

Case Number: A157336

Judge: Jones, P. J.

Court: California Court of Appeals First Appellate District, Division Five on appeal from the Superior Court, County of Napa

Plaintiff's Attorney: Liliana Garcia and Stanley Scott Mallison

Defendant's Attorney: Derek Richard Havel and Daniel J. McQueen

Description: Plaintiff worked as a registered nurse at the hospital from 2005 to
2015. Plaintiff was an hourly employee. During the relevant time
period—September 2011 to May 2015—plaintiff worked two 12-hour shifts
per week. Plaintiff clocked in and out of work using an electronic
2
timekeeping system that automatically rounded time entries up or down to
the nearest quarter-hour.
After her employment ended, plaintiff filed a complaint against QVMC
alleging seven causes of action, including claims for failure to provide meal
and rest periods, and failure to pay minimum wages. As relevant here,
plaintiff alleged she was not paid for hours worked off-the-clock, such as
when she performed “ ‘charting’ ” work, and when her meal and rest periods
were interrupted by co-workers and “ ‘charge nurses’ ” who asked her workrelated questions. Plaintiff also claimed she was not paid all wages because
of the hospital’s time-rounding policy.
Motion for Summary Judgment1
QVMC argued its meal and rest period policies complied with
California law, and that whenever plaintiff reported a missed break, she
received an extra hour of pay. The hospital also contended it could not be
held liable for missed meal or rest periods of which it was unaware. In
addition, QVMC argued plaintiff was paid for all time worked, and that its
rounding policy was legal. The hospital offered the following supporting
evidence, derived largely from plaintiff’s deposition testimony:
QVMC employees are entitled to an uninterrupted meal period of at
least 30 minutes within the first five hours of a shift. Employees who work
1 The factual recitation in plaintiff’s opening brief is not helpful.
Plaintiff does not describe QVMC’s motion for summary judgment, nor
summarize the evidence offered in support of the motion. Instead, plaintiff
presents only the evidence favorable to her. At the summary judgment stage,
the trial court liberally construes the opposing party’s evidence, but the court
does not consider that party’s evidence in a vacuum. (Donohue v. AMN
Services, LLC (2018) 29 Cal.App.5th 1068, 1088, 1084 & fn. 20 (Donohue),
review granted Mar. 27, 2019, S253677.) We summarize the evidence offered
in support of, and opposition to, the summary judgment motion.
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more than 10 hours in a shift are entitled to a second uninterrupted meal
period of at least 30 minutes. Those employees, however, may waive one of
the meal periods. Employees are also entitled to an uninterrupted 15-minute
rest period for every four hours of work. An employee who misses a meal or
rest period must complete an “edit” or “correction” sheet, so QVMC can pay
the employee a one-hour premium. The hospital’s practice is to pay a
premium for a missed meal or rest period “whenever . . . requested.”
Under the hospital’s meal period policy, plaintiff was entitled to two
meal breaks per 12-hour shift. Plaintiff waived her second meal break.
Plaintiff scheduled meal breaks by writing her name next to a time slot on a
whiteboard. At the appointed time, the “break nurse” relieved plaintiff. If no
break nurse was available, the charge nurse relieved plaintiff. Plaintiff did
not recall missing a meal period or notifying a supervisor about a missed
meal period. Plaintiff’s supervisors did not interrupt her meal periods with
work-related questions or requests; they never told her to end her break
early. The only complaint plaintiff had regarding her meal breaks was that
they sometimes happened “too late” in the shift.
Plaintiff’s rest breaks operated similarly: a break nurse or charge
nurse relieved plaintiff. On the few occasions when plaintiff missed a rest
period, she received an extra hour of pay. Plaintiff’s supervisors did not
interrupt her rest periods with work-related questions or requests. On
occasion, plaintiff’s co-workers asked her questions while she was on a rest
break, but when plaintiff responded that she was on a break, the co-workers
left her alone. Plaintiff did not recall complaining to a supervisor about rest
periods.
QVMC prohibited off-the-clock work. Plaintiff always clocked in before
performing work; she did not recall working after she clocked out. Plaintiff’s
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time entries were rounded to the nearest quarter hour, either up or down a
maximum of seven minutes, depending on when plaintiff clocked in or out.
On several occasions, plaintiff benefitted from the rounding policy.
Beginning in June 2013, plaintiff’s time entries contained a prompt asking
her whether she received meal and rest breaks. When plaintiff clocked out,
she honestly answered the prompt. Plaintiff’s supervisors never discouraged
her from reporting a missed meal or rest period.
QVMC’s expert, Scott Sternberg, analyzed plaintiff’s time entries to
determine whether the rounding policy favored plaintiff or the hospital. He
determined the policy was facially neutral, and that the effects of the policy
varied over time, “including day to day, week to week, and month to month.
This indicates that the time period analyzed can alter the results,
particularly considering the very small difference between the total hours
recorded by the time clock and the total unrounded elapsed time between the
punches. For example, when looking at a 128-day period . . . from September
24, 2011, to January 29, 2012, I found that the time clock recorded 400.75
hours while the total unrounded elapsed time between the punches is 400.72
hours, indicating a difference of .03 hours in [plaintiff’s] favor.”
Sternberg determined 47 percent of plaintiff’s rounded time entries
favored plaintiff or had no impact, and 53 percent favored QVMC. According
to Sternberg’s review of plaintiff’s time records, the hospital paid plaintiff for
2,995.75 hours of work; had punch time entries been used, QVMC would have
paid plaintiff for 3,003.5 hours, a difference of .26 percent.
Opposition and Reply
Plaintiff argued her meal and rest periods were “incomplete or
interrupted” and that she had no obligation to report these violations to the
hospital because her time records reflected “short meal periods.” As to her
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claim for unpaid wages, plaintiff argued she was undercompensated because
she worked off-the-clock and during breaks. She also contended the
hospital’s rounding policy systematically undercompensated her, and that
any bias in favor of QVMC, “however small, may establish an illegal
[rounding] practice.”
In a supporting declaration, plaintiff claimed she performed “charting”
work after clocking out because her managers wanted hospital employees to
avoid overtime. Plaintiff averred her lunch breaks were “often
interrupted . . . with questions about patients or work-related tasks by
coworkers and Charge Nurses.” She “often took short meal periods or rest
breaks because supervisors would walk into the break room and look at the
clock, signaling that they expected [her] to clock-in.”
Plaintiff “felt pressured to clock-in early from rest and meal periods
because of supervisor’s behavior and because patients needed” care. She was
“expected to put patients’ needs ahead of [her] own, even if it meant not
taking timely and complete rest breaks and meal periods.” According to
plaintiff, break nurses often provided late coverage—or no coverage—for meal
and rest periods. Plaintiff “often” reported “late, missing, incomplete or
interrupted” meal and rest periods to charge nurses and “was not
compensated.”
Plaintiff’s expert, Aaron Woolfson, offered a supporting declaration
criticizing Sternberg’s methodology and conclusions. Woolfson opined the
hospital’s failure to pay plaintiff for 7.75 hours of work over the relevant time
period—a total of 1.56 minutes per shift— “conclusively establishe[d]” the
rounding policy “was biased.” Woolfson did not analyze QVMC’s timekeeping
policy or plaintiff’s time sheets.
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QVMC’s reply urged the court to exclude the portions of plaintiff’s selfserving declaration that contradicted her deposition testimony, and to reject
much of Woolfson’s declaration. Substantively, the hospital argued: (1) there
was no evidence it knew or should have known plaintiff was working off-theclock; (2) plaintiff’s claim that she told charge nurses about the meal and rest
period violations did not provide QVMC with notice of the alleged violations
because charge nurses were not plaintiff’s supervisors; (3) plaintiff’s
timesheets did not “ ‘prove’ ” meal and rest period violations; and (4) the
rounding policy was neutral and did not systematically disfavor plaintiff.
Order Granting Summary Judgment
In a thorough written order, the court granted QVMC’s motion for
summary judgment. First, it excluded portions of plaintiff’s declaration that
were inconsistent with her deposition testimony and/or lacked foundation.
The court also excluded the portion of Woolfson’s declaration describing
alleged flaws in Sternberg’s analysis and conclusions, determining Woolfson’s
opinion lacked foundation.2
Next, the court concluded QVMC was entitled to judgment on plaintiff’s
meal and rest period claims. It summarized the hospital’s extensive evidence
that plaintiff’s supervisors did not urge her to work during meal or rest
periods and that she did not report missing a meal or rest break to her
supervisors. As the court observed, plaintiff was asked at her deposition
whether charge nurses were supervisors, she “replied, ‘I don’t know,’ ” and
2 Plaintiff does not challenge these evidentiary rulings. We
consider the point waived. (Cahill v. San Diego Gas & Electric Co. (2011)
194 Cal.App.4th 939, 956; Silva v. See’s Candy Shops, Inc. (2016)
7 Cal.App.5th 235, 250 (See’s Candy II) [plaintiff complained trial court
“ ‘ignore[d]’ ” her evidence, but failed to explicitly challenge the court’s
evidentiary ruling].)
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“testified that she did not know whether any supervisor ever interrupted her
with a work question during her lunch break. . . . She also stated she did not
know whether ‘any supervisor ever knew’ she was being interrupted by her
coworkers during [her] meal breaks.”
The court considered plaintiff’s declaration, where she averred charge
nurses and co-workers interrupted her breaks with work-related questions.
It gave this statement “every reasonable inference” and determined it did not
create a triable issue as to whether QVMC had actual or constructive
knowledge her meal and rest breaks were being interrupted with workrelated discussions. According to the court, “walking into the break room and
looking at the clock, without more,” did not constitute “a direction to
prematurely terminate a break.”
Third, the court held QVMC was entitled to judgment on plaintiff’s
claim that she was not paid for all time worked. It noted the hospital
produced evidence that it did not allow employees to perform off-the-clock
work and that plaintiff’s evidence did not create a triable issue. The court
gave “every reasonable inference” to the statement in plaintiff’s declaration
that she performed charting work after clocking out because managers
instructed hospital employees to avoid overtime, but determined an
“instruction to avoid overtime, without more, cannot reasonably be
understood as an affirmative direction to perform work off-the-clock. This is
particularly true in light of Plaintiff’s extensive deposition testimony” where
she denied performing off-the-clock work.
Finally, the court determined QVMC was entitled to judgment on
plaintiff’s rounding claim. It determined QVMC made a prima facie case that
its rounding policy was neutral, and that plaintiff failed to rebut this
showing. The court held Woolfson’s declaration, which criticized Sternberg’s
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“approach, analysis and conclusions,” did not create a triable issue on
whether the rounding policy was biased. As the court explained, Woolfson
did not analyze QVMC’s rounding policies or plaintiff’s timekeeping records,
and “[w]ithout evidence of such an analysis, . . . Woolfson’s assertion that
‘. . . Sternberg’s own evidence (53% of shifts rounded down) and 7.75 unpaid
hours conclusively established defendant’s rounding system was biased’ lacks
foundation . . . . Moreover, it is inconsistent with the holding in Corbin [v.
Time Warner Entertainment-Advance/Newhouse Partnership (9th Cir. 2016)
821 F.3d 1069 (Corbin)] that a finding that some employee has lost some
compensation is not sufficient evidence for a finding of bias.”
The court entered judgment for QVMC.
DISCUSSION
“[T]he party moving for summary judgment bears the burden of
persuasion that there is no triable issue of material fact and that he is
entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal.4th 826, 850 (Aguilar).) “Once the [movant] has met that
burden, the burden shifts to the [other party] to show that a triable issue of
one or more material facts exists as to the cause of action.” (Code Civ. Proc.,
§ 437c, subd. (p)(2); Aguilar, at p. 850.) The party opposing summary
judgment “shall set forth the specific facts showing that a triable issue of
material fact exists.” (Code Civ. Proc., § 437c, subd. (p)(2).) A triable issue of
material fact exists where “the evidence would allow a reasonable trier of fact
to find the underlying fact in favor of the party opposing the motion in
accordance with the applicable standard of proof.” (Aguilar, at p. 850.)
Summary judgment serves to “cut through the parties’ pleadings in
order to determine whether, despite their allegations, trial is in fact
9
necessary to resolve their dispute.” (Aguilar, supra, 25 Cal.4th at p. 843.)
We review the grant of summary judgment independently, “considering all
of the evidence the parties offered in connection with the motion (except
that which the [trial] court properly excluded) and the uncontradicted
inferences the evidence reasonably supports.” (Merrill v. Navegar, Inc. (2001)
26 Cal.4th 465, 476.) Plaintiff, as the appellant, has “the burden of
establishing reversible error.” (Demara v. The Raymond Corp. (2017)
13 Cal.App.5th 545, 552.)
I.
Meal and Rest Period Claims
“State law obligates employers to afford their nonexempt employees
meal periods . . . during the workday.” (Brinker Restaurant Corp. v. Superior
Court (2012) 53 Cal.4th 1004, 1018 (Brinker).) An employer satisfies this
obligation “if it relieves its employees of all duty, relinquishes control over
their activities and permits them a reasonable opportunity to take an
uninterrupted 30-minute break, and does not impede or discourage them
from doing so.”3 (Id. at p. 1040.) In addition, Labor Code section 512 requires
a meal period be provided “no later than the end of an employee’s fifth hour of
work.” (Brinker, at p. 1041.) “[T]he employer is not obligated to police meal
breaks and ensure no work thereafter is performed.” (Id. at p. 1040.) “A
missed meal break does not constitute a violation if the employee waived the
3 To the extent plaintiff claims these principles do not apply to nurses,
we reject the argument as undeveloped and unsupported by relevant
authority. (Parisi v. Mazzaferro (2016) 5 Cal.App.5th 1219, 1226, fn. 10.)
Alberts v. Aurora Behavioral Health Care (2015) 241 Cal.App.4th 388
(Alberts) does not stand for the proposition that different meal and rest break
rules apply to nurses.
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meal break, or otherwise voluntarily shortened or postponed it.” (Lampe v.
Queen of the Valley Medical Center (2018) 19 Cal.App.5th 832, 851.)
Similar principles apply to rest periods. (Brinker, supra, 53 Cal.4th at
p. 1028.) An employer must “ ‘authorize and permit all employees to take
rest periods’ ” at the rate of 10 minutes of rest for each four hours the
employee works “ ‘or major fraction thereof.’ ” (Ibid.)
The hospital provided meal breaks as required by law. QVMC provided
one meal period for every five hours of work, and a second meal period for
those who worked more than 10 hours. Plaintiff waived her second meal
period. At her deposition, plaintiff testified a break nurse or a charge nurse
relieved her for meal periods and that she always received a meal break by
the end of her shift. Plaintiff did not recall missing a meal period or notifying
a supervisor about a missed meal period. She could not remember a
supervisor interrupting her meal periods with work-related questions or
requests. Plaintiff’s supervisors never told her to end a meal break early; she
was never discouraged from taking a meal break. Together this evidence
establishes QVMC provided meal breaks required by law. (Brinker, supra,
53 Cal.4th at pp. 1004, 1040 [“employer’s obligation is to relieve its employee
of all duty” during meal period, but “need not ensure that no work is done”];
Donohue, supra, 29 Cal.App.5th at p. 1092 [employer had a “complete
defense” to meal period violation claim].)
QVMC also provided rest breaks as required by law. Hospital
employees received a 15-minute rest period for every four hours of work. At
her deposition, plaintiff admitted her supervisors did not discourage her from
taking rest breaks; she acknowledged her supervisors did not tell her to cut
her breaks short. Plaintiff could not remember a supervisor interrupting her
rest periods with work-related questions or requests. When plaintiff’s co-
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workers asked her questions, plaintiff told them she was on a break, and they
left her alone. Plaintiff did not recall complaining to a supervisor about rest
periods.
For a portion of the relevant time period, plaintiff affirmed she was
provided with her meal and rest breaks when she clocked out of her shift.
The few times that plaintiff did miss a break, she reported it and received an
extra hour of pay pursuant to the hospital’s practice of paying a premium for
a missed break “whenever . . . requested.” Viewed as a whole, this evidence
demonstrates QVMC provided rest periods as required by law. (See Augustus
v. ABM Security Services, Inc. (2016) 2 Cal.5th 257, 264 [discussing scope of
employer’s obligation to provide off-duty rest periods].)
As she did in the trial court, plaintiff relies on her declaration in an
effort to establish a triable issue of fact. The trial court was not persuaded,
and neither are we. The gist of plaintiff’s declaration is charge nurses looked
at the clock while plaintiff was on her breaks, which she interpreted as a
signal to cut her breaks short. Assuming for the sake of argument charge
nurses are supervisors—an issue we need not decide—this evidence does not
support a reasonable inference plaintiff was pressured to end her breaks
early. Plaintiff’s generic comment does not create a triable issue of fact
regarding interrupted or insufficient breaks, particularly in light of her
specific deposition testimony that a supervisor never told her to end her
break early, never discouraged her from taking a break, and never told her to
work while she was taking a break. (D’Amico v. Board of Medical Examiners
(1974) 11 Cal.3d 1, 21 [party cannot create triable issue of fact by relying on a
declaration contrary to deposition testimony].)
Notably absent from plaintiff’s briefing is a single case where a
supervisor’s glance at a clock constituted coercion or pressure sufficient to
12
undermine a formal policy of providing meal and rest breaks. This case bears
no resemblance to the cases cited by our high court in Brinker, supra,
53 Cal.4th at page 1040, such as Dilts v. Penske Logistics, LLC (S.D.Cal.
2010) 267 F.R.D. 625, 638, where employees had no way to report missed
meal breaks and the employer enforced an informal anti-meal-break policy
through “ ‘ridicule’ or ‘reprimand.’ ”
Plaintiff’s opening brief does not cite Donohue, supra, 29 Cal.App.5th
1068, which is on point. There, the trial court granted summary adjudication
for the employer on the plaintiff’s meal period claim. (Id. at p. 1086.) In
urging the appellate court to reverse, the plaintiff relied on her deposition
testimony, where she suggested she was denied a full meal period because
she was pressured to keep working. (Id. at p. 1091.) The Donohue court held
this testimony did not defeat the employer’s motion for at least two reasons.
First, Donohue determined the deposition testimony did not address the
undisputed evidence that the employer had a procedure for employees to
report potential meal period violations, and that the plaintiff failed to inform
the employer “of any such violation.” (Ibid.) Second, Donohue determined
the plaintiff’s testimony failed to create a triable issue because it was
inconsistent with the certified statement she submitted with each timesheet
stating she either received an opportunity to take meal breaks or reported
the missing break.
Donohue applies here. As in Donohue, QVMC had a mechanism for
employees to report potential meal and rest period violations. And with the
exception of a few isolated instances, plaintiff failed to report any such
violation. (Donohue, supra, 29 Cal.App.5th at p. 1091.) She also
affirmatively stated in her time correction sheets that she received breaks.
Like Donohue, plaintiff’s declaration does not create a triable issue of fact
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because, as discussed above, it is inconsistent with her deposition testimony,
where she could not remember missing a meal or rest period; could not
remember having a supervisor interrupt her meal or rest breaks or being
discouraged by a supervisor from taking a meal or rest period; and could not
remember raising any concerns about meal periods with her supervisor.
Plaintiff’s cursory attempt to distinguish Donohue in her reply brief is not
persuasive.
Plaintiff’s reliance on Alberts, supra, 241 Cal.App.4th 388 does not
persuade us the court erred by adjudicating the meal and rest period claims
in QVMC’s favor. In that case, plaintiffs alleged a hospital systematically
discouraged nurses from taking meal and rest breaks, covered up missed
meal periods, and forced nursing staff to work after their shifts ended. (Id. at
pp. 415–417.) Alberts held the trial court erred by failing to certify meal and
rest break subclasses because plaintiffs’ theory of liability presented a
common question suitable for class treatment, and because plaintiffs offered
substantial common evidence to support that theory. (Id. at pp. 401, 412,
414.)
Alberts—a class certification case—has no application in this appeal
from a grant of summary judgment. Class certification is a procedural
question that does not ask whether an action is legally or factually
meritorious. Summary judgment, in contrast, is a merits question.
(Donohue, supra, 29 Cal.App.5th at p. 1087 [rejecting reliance on class
certification case in a summary judgment appeal].) Alberts is also factually
distinguishable.
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II.
Rounding Claim
In California, an employer may use a rounding policy if it “is fair and
neutral on its face and ‘. . . is used in such a manner that it will not result,
over a period of time, in failure to compensate the employees properly for all
the time they have actually worked.’ ” (See’s Candy Shops, Inc. v. Superior
Court (2012) 210 Cal.App.4th 889, 907.) “[C]ourts have upheld an employer’s
rounding policy if ‘ “on average, [it] favors neither overpayment nor
underpayment,” ’ but have rejected timekeeping policies that ‘ “systematically
undercompensate[] employees” ’ such as where the employer’s rounding policy
‘ “encompasses only rounding down.” ’ ” (See’s Candy II, supra, 7 Cal.App.5th
at p. 249.)
Whether a rounding policy will “result in undercompensation over time
is a factual” issue. (See’s Candy Shops, Inc. v. Superior Court, supra,
210 Cal.App.4th at p. 912.) Summary adjudication on a rounding claim may
be appropriate where the employer can show the rounding policy does not
systematically underpay the employee, even if the employee loses some
compensation over time. (Corbin, supra, 821 F.3d at pp. 1076–1077
[upholding summary judgment for employer and rejecting argument that any
loss of employee compensation invalidated rounding policy]; Ferra v. Loews
Hollywood Hotel, LLC (2019) 40 Cal.App.5th 1239, 1255, review granted Jan.
22, 2020, S259172 [affirming summary adjudication on rounding claim and
holding a rounding “system can be fair or neutral even where a small
majority loses compensation”]; AHMC Healthcare, Inc. v. Superior Court
(2018) 24 Cal.App.5th 1014, 1026 [summary adjudication for employer proper
despite evidence some employees “suffered minor losses in compensated
time”].)
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Here, QVMC’s rounding policy “is neutral on its face. It ‘rounds all
employee time punches to the nearest quarter-hour without an eye towards
whether the employer or employee is benefitting from the rounding.’ ”
(AHMC Healthcare, Inc. v. Superior Court, supra, 24 Cal.App.5th at p. 1027.)
It is also neutral in practice. (Corbin, supra, 821 F.3d at p. 1079.) The
rounding policy did not systematically undercompensate plaintiff:
sometimes, in a given pay period, she gained minutes and compensation;
sometimes she lost minutes and compensation. (Ibid.) The overall loss of .26
percent in compensation over the relevant time period is statistically
meaningless. (Ferra v. Loews Hollywood Hotel, LLC, supra, 40 Cal.App.5th
at pp. 1253–1254 [rounding system neutral even where the plaintiff lost time
in 55.1 percent of shifts]; AHMC Healthcare, Inc. v. Superior Court, supra, at
p. 1028 [rounding system neutral, even though some employees lost 2.33
minutes per shift]; See’s Candy II, supra, 7 Cal.App.5th at p. 250 [evidence
that the plaintiff had a shortfall and a surplus demonstrated rounding policy
was “mathematically neutral over time”].)
Under the authorities discussed above, QVMC satisfied its burden
of establishing the rounding policy is lawful. (See’s Candy II, supra, 7
Cal.App.5th at p. 250.) Plaintiff’s bare assertion she is “owed 7.75 hours of
wages” does not create a triable issue of fact,4 and her brief argument to the
contrary is not persuasive because it is premised on the mistaken assumption
that the trial court applied the federal Fair Labor Standards Act of 1938’s de
4 The court excluded a portion of plaintiff’s expert declaration, a ruling
plaintiff does not challenge on appeal. Assuming for the sake of argument
Woolfson’s opinion was admissible, it does not create a triable issue of fact
because Woolfson did not analyze the rounding policy or plaintiff’s timesheets
and did not consider evidence that plaintiff may have gained compensable
work time under the rounding policy. (Donohue, supra, 29 Cal.App.5th at
p. 1085.)
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minimis doctrine (29 U.S.C. § 201 et seq.) when adjudicating her rounding
claim. The de minimis doctrine does not apply to wage and hour claims
brought under California law (Troester v. Starbucks Corp. (2018) 5 Cal.5th
829, 834, 848) and the trial court did not apply that doctrine when granting
QVMC’s summary judgment motion.

Outcome: The judgment is affirmed. QVMC is entitled to costs on appeal. (Cal. Rules of Court, rule 8.278(a)(2).)

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Defendant's Experts:

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