Alfredo Sanchez v. Miguel A. Martinez

Stockton, CA - Labor Law, Employment Law











Plaintiffs in this case are five farm laborers1 who filed suit against Miguel A.

Martinez, their former employer, based on alleged violations of various labor laws.

We first considered their claims three years ago in Sanchez et al. v. Martinez (Jan.

12, 2016, C076852) [nonpub. opn.] (Sanchez). In our initial review, we considered

plaintiffs’ appeal from a judgment that rejected all their claims against Martinez.

Although we affirmed the judgment for the most part, we reversed to allow plaintiffs to

proceed on two of their claims—one of which concerned Martinez’s failure to pay

plaintiffs for rest periods, and another of which was derivative of their rest-period claim.

As we explained, Martinez was obligated to pay his employees for the time they spent on

authorized rest periods. But, we found, nothing in the evidence showed he had ever paid

his employees for this time. We thus remanded to allow the trial court to determine

appropriate damages and penalties based on this failure. After our remand, the trial court

did as we directed.

Both parties now raise various challenges to the trial court’s calculation of

damages and penalties. Plaintiffs contend the trial court undervalued their damages and

wrongly rejected several of their claims for penalties. Martinez, in turn, asserts that

insufficient evidence supports the trial court’s calculation of damages and penalties.

Because we find none of the parties’ several claims warrants reversal, we affirm the trial

court’s decision.

BACKGROUND

We take much of the facts from our initial opinion in this matter.

“[I]n October 2009, seven plaintiffs—including [two] who are still before us—

commenced this action against Martinez for various labor law violations that allegedly

1 Alfredo Sanchez, Delfino Sanchez Gatica, Calixtro Miliano, Francisco Pantoja,

and Rafael Villa Reyna.

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occurred when they worked for him pruning grape vines at a piece rate[2]

in January

2009.” (Sanchez, supra, C076852.) Plaintiffs later amended their complaint to add

several additional plaintiffs, including the three other plaintiffs in this appeal. (Id. at pp.

2-3 & fn. 1.) “Ultimately, in May 2013, plaintiffs filed a third amended complaint

alleging violations in 2009, 2010, and 2011.” (Id.)

“The case was tried to the court in February 2014. Following the completion of

plaintiffs’ case-in-chief, Martinez made a motion for judgment . . . . The court granted

judgment against six plaintiffs who failed to appear and testify at trial and against three

plaintiffs the court found never worked for Martinez . . . . Following the presentation of

the remainder of the evidence, the court found in favor of Martinez on all causes of action

and entered judgment accordingly.” (Sanchez, supra, C076852.)

Plaintiffs afterward appealed that judgment, leading to our first review of their

claims in 2016. Although we rejected the majority of their claims, we found several

issues warranted reversal and further consideration by the trial court. In particular, as

relevant here, we reversed the trial court’s judgment “as to plaintiffs’ rest period cause of

action and plaintiffs’ [derivative] cause of action under the Labor Code Private Attorneys

General Act.” (Sanchez, supra, C076852.) We explained that Martinez was obligated to

pay his employees for the time they spent on authorized rest periods, which plaintiffs

were entitled to receive for every four hours “or major fraction thereof” worked. (Id. at

pp. 25-26; see Cal. Code Regs., tit. 8, § 11140, subd. (12) [“authorized rest period time

shall be based on the total hours worked daily at the rate of ten (10) minutes net rest time

per four (4) hours or major fraction thereof”].) But, we concluded, “there is no evidence

plaintiffs were compensated for rest periods separately from the piece-rate compensation

they received for the grapevines they pruned.” (Sanchez, supra, C076852.) We thus

2 An employee paid on a “piece rate” basis is paid per unit produced or task

accomplished. In our case, plaintiffs were paid per grapevine pruned.

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reversed the trial court’s decision to the extent it found plaintiffs were compensated for

this time, and directed the court, on remand, to determine (1) the damages owed to

plaintiffs based on Martinez’s failure to provide compensation for rest periods, and (2)

the penalties owed to plaintiffs under the Labor Code Private Attorneys General Act

based on this same failure to compensate for rest periods. (Sanchez, supra, C076852.)

On remand, following further briefing and argument from the parties, the trial

court directed Martinez to pay $416 in damages and $17,775 in civil penalties.

Plaintiffs timely appealed and Martinez afterward cross-appealed. Both parties

challenge the trial court’s calculation of damages and penalties.3

DISCUSSION

I

Calculation of Damages

We consider first the parties’ competing claims concerning the trial court’s

calculation of damages for plaintiffs’ unpaid rest periods.

A. Plaintiffs’ Claims

We start with plaintiffs’ claims. At the trial level, plaintiffs sought to be

compensated twice for the days they took rest breaks without pay. First, they alleged

they were entitled to be paid the minimum wage for the actual time they went unpaid.

Second, they asserted they were further entitled to an “additional hour of pay” under

Labor Code4

section 226.7—which, at the time relevant here, required an employer to

pay “one additional hour of pay” when it failed to provide an employee a rest period “in

3 Plaintiffs request that we take judicial notice of two documents prepared by the

Department of Industrial Relation’s Division of Labor Standards Enforcement (DLSE).

One is a DLSE memorandum concerning meal and rest period pay and the other is a

portion of DLSE’s Enforcement Policies and Interpretations Manual. We grant plaintiffs’

request. (See Evid. Code, §§ 452, subd. (c), 459, subd. (a).)

4 Undesignated statutory references are to the Labor Code.

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accordance with an applicable order of the Industrial Welfare Commission.” (Former §

226.7, subd. (b); Stats. 2000, ch. 876, § 7.) The trial court, however, only accepted their

latter argument, reasoning that section 226.7 offers “the only compensation for rest

period violation injuries” and thus precludes compensation under separate theories.

On appeal, plaintiffs contend the court instead should have compensated them

under both their theories. We disagree, though our reasoning is somewhat different than

the trial court’s own.

1. The Merits of Plaintiffs’ Two Theories of Recovery

To begin, unlike the trial court, we find both plaintiffs’ theories of recovery to be

legitimate types of claims.

Consider first plaintiffs’ argument that they are entitled to be paid the minimum

wage for the actual time that they took rest breaks without pay. Our court in 2013

accepted that very type of argument in Bluford v. Safeway Inc. (2013) 216 Cal.App.4th

864 (Bluford). As we wrote there, “rest periods must be separately compensated in a

piece-rate system,” either under “the legal minimum wage or the contractual hourly

rate”—a principle now codified, with slight tweaking, in section 226.2. (Bluford, at p.

872; see also § 226.2, subd. (a).) We reached that conclusion in large part based on an

Industrial Welfare Commission wage order that applies to employees in the mercantile

industry. (Bluford, at pp. 871-872; see Cal. Code Regs., tit. 8, § 11070, subd. (1).)

According to that wage order, rest periods are considered “hours worked,” and

employees—even if paid on a piece-rate basis—must be paid at least the minimum wage

for all “hours worked.” (Bluford, at pp. 871-872; see also Cal. Code Regs., tit. 8, §

11070, subds. (4), (12).) Although our case does not involve employees in the mercantile

industry, another wage order supplies the very same rule for employees, like plaintiffs

here, who work in the agricultural industry. (See Cal. Code Regs., tit. 8, § 11140, subds.

(1), (4), (12).) We thus find plaintiffs’ Bluford theory of recovery based on their actual

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unpaid rest-period time—in effect, a claim for unpaid wages for certain “hours

worked”—is a legitimate one.

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In this regard, we disagree with the trial court. According to the trial court,

plaintiffs’ theory of recovery based on actual unpaid time was foreclosed by a certain

comment from the California Supreme Court’s decision in Murphy v. Kenneth Cole

Productions, Inc. (2007) 40 Cal.4th 1094 (Murphy). The Supreme Court there explained

that employees forced to work during rest periods lose a benefit to which the law entitles

them, and then noted that “Section 226.7 provides the only compensation for these

injuries.” (Id. at p. 1104.) In the trial court’s view, this comment shows that section

226.7 offers “the only compensation for rest period violation injuries”—barring

plaintiffs’ alternative theory of compensation based on actual unpaid time.

We read Murphy differently. The Murphy court’s “only compensation” comment

was made in reference to employees who are wrongly forced to work during rest periods.

And as far as we are aware, it is true, as the Murphy court noted, that section 226.7

provides these employees with their only means of compensation for these injuries. But

our case involves a different type of injury—namely, injuries premised on an employer’s

failure to pay for authorized rest periods. And as Bluford shows, employees suffering

5 Had the relevant events here occurred after 2016, rather than rely solely on

Bluford and wage orders, we would have relied more on section 226.2—again, a statute

that codified Bluford’s holding. That statute, among other things, provides that

“employees compensated on a piece-rate basis . . . . [¶] shall be compensated for rest and

recovery periods and other nonproductive time separate from any piece-rate

compensation.” (§ 226.2, subd. (a), (a)(1).) It further details the amount of compensation

owed employees for this time, though it calculates the required compensation in a manner

somewhat different than Bluford. (§ 226.2, subd. (a)(3)(A).) But section 226.2 became

effective only in 2016, years after the relevant events here, and courts have construed this

particular part of section 226.2 to have only a prospective effect. (Nisei Farmers League

v. Labor & Workforce Development Agency (2019) 30 Cal.App.5th 997, 1018.) We thus

focus on Bluford and other pre-2016 law, not section 226.2, in evaluating plaintiffs’

claims.

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those types of injuries can indeed seek to be compensated for their actual unpaid time,

either under “the legal minimum wage or the contractual hourly rate.” (Bluford, supra,

216 Cal.App.4th at p. 872; see also § 226.2.) Nothing in Murphy suggests otherwise. We

thus, unlike the trial court, accept plaintiffs’ Bluford theory of recovery based on actual

unpaid time.

We also find valid plaintiffs’ separate theory of recovery under section 226.7.

Again, at all times relevant here, that statute required an employer to pay “one additional

hour of pay”—often referred to as a “premium wage”—when it failed to provide an

employee a rest period “in accordance with an applicable order of the Industrial Welfare

Commission.” (Former § 226.7, subd. (b); Stats. 2000, ch. 876, § 7; Murphy, supra, 40

Cal.4th at p. 1114.)6

Courts have generally, as was true in Murphy, applied section 226.7

in cases involving employers that required their employees to work during rest periods.

(See, e.g., Murphy, supra, 40 Cal.4th at pp. 1101-1102.) But the statute’s language is

expansive enough to cover also employers that provided rest periods but then failed to

pay for them. After all, as discussed above, an applicable order of the Industrial Welfare

Commission requires rest periods to be paid (see Cal. Code Regs., tit. 8, § 11140, subds.

(4), (12)), and so an employer that provides rest periods, but only unpaid ones, has not

provided rest periods “in accordance with an applicable order of the Industrial Welfare

Commission.”

6 Former section 226.7, in relevant part, provided: “If an employer fails to provide

an employee a meal period or rest period in accordance with an applicable order of the

Industrial Welfare Commission, the employer shall pay the employee one additional hour

of pay at the employee’s regular rate of compensation for each work day that the meal or

rest period is not provided.” (Former § 226.7, subd. (b); Stats. 2000, ch. 876, § 7.) The

relevant language in section 226.7 is now slightly different, requiring an employer to pay

“one additional hour of pay” when it “fails to provide an employee a meal or rest or

recovery period in accordance with a state law.” (§ 226.7, subd. (c).)

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But although we find the plain language of section 226.7 covers claims for unpaid

rest periods like those here, we acknowledge that one California Supreme Court

decision—Kirby v. Immoos Fire Protection, Inc. (2012) 53 Cal.4th 1244 (Kirby)—

strongly suggests these types of claims should fail nonetheless. The court there

considered when, “if ever,” a successful plaintiff in a section 226.7 action could recover

attorney fees under section 218.5—a statute that, among other things, allows attorney fee

awards in any “ ‘action brought for the nonpayment of wages.’ ” (Kirby, at p. 1248; id. at

p. 1255.) The court ultimately found no circumstances would allow the recovery of these

fees, reasoning that no section 226.7 action is “brought for the nonpayment of wages.”

According to the court, “When an employee sues for a violation of section 226.7, he or

she is suing because an employer has allegedly ‘require[d] [the] employee to work during

[a] meal or rest period mandated by an applicable order of the Industrial Welfare

Commission.’ [Citation.] In other words, a section 226.7 action is brought for the

nonprovision of meal and rest periods, not for the ‘nonpayment of wages.’ ” (Kirby, at p.

1255.)

Accepting the Kirby court’s characterization of section 226.7, however, suggests

the statute would be inapplicable here. Plaintiffs, after all, have not sued “because an

employer has allegedly ‘require[d] [them] to work during [a] meal or rest period.’ ”

(Kirby, supra, 53 Cal.4th at p. 1255.) Nor was their action “brought for the nonprovision

of meal and rest periods.” (Ibid.) Their action instead was brought based on the

nonpayment of wages, leaving them in conflict with the Kirby court’s clear instruction

that “[n]onpayment of wages is not the gravamen of a section 226.7 violation.” (Id. at p.

1256.)

But even so, we still find section 226.7 applicable in light of the Legislature’s

enactment of section 226.2 in 2015. To explain why, we first require a little background

on what led to the passage of section 226.2. Recall that in 2013, in Bluford, we found

that employees paid on a piece-rate basis must still be compensated for time spent on

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authorized rest periods. (Bluford, supra, 216 Cal.App.4th at p. 872.) Although our

decision there kept with prior legal decisions, many employers afterward “expressed

concern about liability since they had not previously compensated employees paid on a

piece rate system in such a manner.” (Assem. Com. on Labor and Employment, Rep. on

Assem. Bill No. 1513 (2015-2016 Reg. Sess.) as amended Sept. 9, 2015, p. 5.) To

address that concern, while also ensuring employees receive pay for this time, the

Legislature enacted section 226.2 as a compromise in late 2015. That statute codified the

principle that rest periods and other nonproductive time must be compensated in a piecerate system, but also created a safe harbor for certain employers that had previously failed

to do so—though Martinez, because he had been sued in 2009, could not obtain this

benefit. (§ 226.2, subds. (a)-(g).)

Although section 226.2’s safe-harbor provision is inapplicable here, its language is

nonetheless significant in showing that violations of section 226.7 can, despite Kirby, be

premised on the nonpayment of wages. Under that safe-harbor provision, employers that

pay their employees for previously uncompensated rest periods by December 15, 2016,

“have an affirmative defense to any claim or cause of action for recovery of wages,

damages, liquidated damages, statutory penalties, or civil penalties, including . . .

premium pay pursuant to Section 226.7, . . . based solely on the employer’s failure to

timely pay the employee the compensation due for rest [periods] . . . for time periods

prior to and including December 31, 2015.” (§ 226.2, subd. (b).) Stated a little more

succinctly, these employers have an affirmative defense to section 226.7 actions that are

“based solely” on the nonpayment of wages “due for rest [periods] . . . for time periods

prior to and including December 31, 2015.” In creating this safe harbor, the Legislature

plainly contemplated that section 226.7 actions could indeed be “based solely” on the

nonpayment of these wages. We thus find, Kirby notwithstanding, that section 226.7

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applies in cases like ours concerning unpaid rest periods.7

In sum, then, we conclude that

both plaintiffs’ Bluford theory of recovery and their section 226.7 theory of recovery are

legitimate ones when an employer fails to compensate farmworkers for authorized rest

periods.

2. Plaintiffs’ Ability to Obtain Double Compensation

But although we agree with plaintiffs this far, we disagree with their claim that

they are entitled to be compensated twice—once under each of their theories—for the

same harms.

Our reasoning is guided in large part by the rule against double recovery. As the

California Supreme Court has explained, “[r]egardless of the nature or number of legal

theories advanced by [a] plaintiff, [the plaintiff] is not entitled to more than a single

recovery for each distinct item of compensable damage supported by the evidence.”

(Tavaglione v. Billings (1993) 4 Cal.4th 1150, 1158.) “Double or duplicative recovery

for the same items of damage amounts to overcompensation and is therefore prohibited.”

(Id. at p. 1159; see also Slater v. Blackwood (1975) 15 Cal.3d 791, 795 [“Even where

there are multiple legal theories upon which recovery might be predicated, one injury

gives rise to only one claim for relief”].) But that is precisely what plaintiffs seek in this

action. Both plaintiffs’ theories of recovery seek compensation for the very same harm—

namely, Martinez’s failure to pay for authorized rest periods.8

7 The Ninth Circuit recently found similarly but for different reasons. Section

226.7’s remedy, the court found, applies “when an employer fails to actually provide rest

breaks” and, Kirby notwithstanding, also “when an employer fails to separately

compensate employees for rest breaks.” (Ibarra v. Wells Fargo Bank, N.A. (9th Cir.

2020) 809 Fed.Appx. 361, 364.) Distinguishing Kirby, the Ninth Circuit said the case

“ ‘simply did not address’ the question whether there is a remedy under section 226.7(c)

for failure to properly compensate employees for rest breaks.” (Ibarra, at p. 364, fn. 4.)

8 At oral argument, plaintiffs asserted that they are not seeking double recovery

because their claims are based on “discrete labor code violations.” But then in explaining

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Plaintiffs’ position conflicts not only with the rule against double recovery; it also

conflicts with the California Supreme Court’s understanding of section 226.7. In Murphy

the court held that section 226.7 is intended to “compensate employees, not [to impose] a

penalty.” (Murphy, supra, 40 Cal.4th at p. 1114.) But if, as plaintiffs contend, they are

entitled to full compensation for their actual damages under their Bluford theory of

recovery, what compensatory purpose is served by section 226.7? Seemingly none.

After all, as the Murphy court explained, a statute providing for “ ‘ “recovery of damages

additional to actual losses incurred” ’ ” does not serve a compensatory function at all; it

instead serves as a penalty. (Murphy, at p. 1104.) Allowing plaintiffs to recover under

section 226.7, after they have already recovered all their actual losses under their Bluford

claim, would thus serve to convert section 226.7’s “additional hour of pay” to nothing

more than a penalty—defying Murphy’s holding that section 226.7 does not impose a

penalty.

To avoid double recovery and any conflict with Murphy, we thus decline

plaintiffs’ efforts to be compensated twice for each injury. We conclude they may be

compensated under the reasoning of Bluford for their actual damages, or they may be

compensated under section 226.7’s “additional hour of pay”—but they may not be

compensated under both for the same harm.

Our conclusion in this regard, as noted above, departs somewhat from the trial

court’s decision. The trial court, which found plaintiffs’ exclusive route to recovery was

under section 226.7, mistakenly deprived plaintiffs of the opportunity to determine their

preferred course for obtaining recovery. But even so, we do not find the court’s error on

this point to be a reversible one. Under our state Constitution, “a judgment [may] not be

reversed unless error caused actual prejudice in light of the whole record.” (Soule v.

the point, they made clear that both their theories of recoveries flow from the same

injury—Martinez’s failure to pay for authorized rest periods.

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General Motors Corp. (1994) 8 Cal.4th 548, 573; see Cal. Const., art. VI, § 13.)

Reviewing the record here, we find plaintiffs suffered no actual prejudice as a result of

the trial court’s error. Under plaintiffs’ Bluford claim, in their calculation, each plaintiff

would be entitled to up to $2.67 ($8 (the minimum wage at the time) x one-third of an

hour) for each day that Martinez failed to pay them for their rest periods.

9

And under

their section 226.7 claim, in their calculation, each plaintiff would be entitled to $8 ($8 x

one hour) for each day these violations occurred. Although the court should have

allowed plaintiffs to choose their route for recovery, they were not prejudiced in being

forced to take the option that maximized their recovery.

B. Martinez’s Claims

Martinez challenges the trial court’s calculation of damages from a different angle.

In his view, “[t]he trial court erred as a matter of law by failing to consider whether

unpaid rest breaks were actually taken by Plaintiffs.” We disagree.

Martinez’s claim, in effect, is that the court failed to consider whether plaintiffs

took rest periods. To be sure, Martinez’s argument focuses on unpaid rest periods. But

whether these rest breaks were paid or not is not really at issue, for as we found in our

initial decision, any rest break plaintiffs took was an unpaid one. (Sanchez, supra,

C076852 [“no evidence [shows] plaintiffs were compensated for rest periods separately

from the piece-rate compensation they received for the grapevines they pruned”].)

Understood this way, we have little difficulty rejecting Martinez’s contention. In

its initial decision, the trial court expressly found plaintiffs “t[ook] rest breaks by getting

water, by going to the bathroom, and by walking to areas away from the field for lunch.”

They might not have taken all the breaks they were entitled to, the court explained, but

they at least took some breaks—a conclusion we accepted in our initial review of this

9 Plaintiffs content they took at most 20 minutes (or one-third of an hour) of unpaid

rest periods per day.

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case. We thus reject Martinez’s claim that the trial court altogether failed to consider

whether plaintiffs took rest breaks.

Martinez alternatively challenges the trial court’s finding on substantial evidence

grounds. In his view, even if the court did consider whether plaintiffs took rest breaks,

the evidence required the court to find “that no such breaks were taken.” We disagree

here too.

To begin, because Martinez has cited only evidence in his favor, we find his

contention forfeited. An appellant “who cites and discusses only evidence in his favor

fails to demonstrate any error and waives the contention that the evidence is insufficient

to support the judgment.” (Rayii v. Gatica (2013) 218 Cal.App.4th 1402, 1408; see also

Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) But that is precisely what

Martinez has done here. He repeatedly cites testimony showing plaintiffs declined to

take rest breaks. But he entirely ignores conflicting testimony, including his own

testimony, showing plaintiffs in fact took rest breaks. We find his substantial evidence

claim forfeited as a result.

But even if we ignored Martinez’s failure to fairly present the evidence, we would

still find substantial evidence supports the court’s findings.

The substantial evidence standard of review is a highly deferential one. Under this

standard, we view the evidence in the light most favorable to the prevailing party, and

then consider whether this evidence is sufficient to allow a reasonable trier of fact to

reach the challenged decision. (In re I.J. (2013) 56 Cal.4th 766, 773; see also Bickel v.

City of Piedmont (1997) 16 Cal.4th 1040, 1053, abrogated on other grounds as

recognized in DeBerard Properties, Ltd. v. Lim (1999) 20 Cal.4th 659, 668.)

Applying that standard here, we find sufficient evidence in the record supports the

court’s conclusion that plaintiffs took daily rest breaks. Several plaintiffs, for instance,

testified that they took rest breaks to use the water and restroom facilities. One, for

example, testified he took breaks “every day” to walk to the water facilities—which was

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about 10 minutes from the fields in which he worked. Martinez himself testified that his

employees were given rest breaks and operations ceased during those breaks. And two of

his former supervisor employees, who spoke in support of Martinez, testified that they

scheduled rest breaks twice a day: once in the morning and once in the afternoon.

Considering this testimony and the record as a whole, a reasonable trier of fact could

conclude that plaintiffs did indeed take daily rest breaks. And because each of these rest

breaks went unpaid, the court could find, as it did, that plaintiffs were entitled to “one

additional hour of pay” under section 226.7 for each of these days.

II

Calculation of Penalties

We consider next the parties’ various objections to the trial court’s calculation of

penalties.

A. Plaintiffs’ Claims

Plaintiffs object to the trial court’s penalty award on two grounds. First, they

contend, based on section 1194.2, that the trial court should have awarded them

“liquidated damages” equal to the amount of unpaid wages due. (See Martinez v. Combs

(2010) 49 Cal.4th 35, 48, fn. 8 [“[t]he ‘liquidated damages’ allowed in section 1194.2 are

in effect a penalty”].)10

Second, they assert that the trial court also should have awarded

them penalties, under section 203, based on Martinez’s failure to timely pay all wages

10 Section 1194.2 in relevant part, provides: “In any action under Section 98, 1193.6,

1194, or 1197.1 to recover wages because of the payment of a wage less than the

minimum wage fixed by an order of the commission or by statute, an employee shall be

entitled to recover liquidated damages in an amount equal to the wages unlawfully unpaid

and interest thereon.” (§ 1194.2, subd. (a).)

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due after plaintiffs were discharged or quit.11

Because we find both these claims

exceeded the scope of our limited remand in 2016, however, we reject these contentions.

In our initial review of this case, we affirmed the trial court’s rejection of nearly

all plaintiffs’ causes of action, including those under sections 203 and 1194.2. (See

Sanchez, supra, C076852 [plaintiffs’ “causes of action for liquidated damages and

waiting time penalties are . . . without merit”].) We only remanded to allow

consideration of two issues: (1) the damages owed to plaintiffs based on Martinez’s

failure to provide compensation for rest periods, and (2) relatedly, the penalties owed to

plaintiffs under the Labor Code Private Attorneys General Act “for Martinez’s violation

of Labor Code section 226.7.” (Id. at pp. 29, 32.) On remand, plaintiffs appropriately

presented arguments on these two topics.

But plaintiffs also treated the remand as an opportunity to revive their claims

concerning sections 203 and 1194.2. They sought too much with this effort. A “trial

court’s jurisdiction on remand extends only to those issues on which the reviewing court

permits further proceedings.” (Ayyad v. Sprint Spectrum, L.P. (2012) 210 Cal.App.4th

851, 863; see also Hampton v. Superior Court (1952) 38 Cal.2d 652, 656 [“The order of

the appellate court as stated in the remittitur, ‘is decisive of the character of the judgment

to which the appellant is entitled’ ” on remand].) Because we permitted further

proceedings on only two issues—neither of which concerned sections 203 and 1194.2—

we find plaintiffs’ efforts to revive their claims under these two statutes inappropriate.

11 Section 203, in relevant part, provides: “If an employer willfully fails to pay,

without abatement or reduction, in accordance with Sections 201, 201.3, 201.5, 201.6,

201.8, 201.9, 202, and 205.5, any wages of an employee who is discharged or who quits,

the wages of the employee shall continue as a penalty from the due date thereof at the

same rate until paid or until an action therefor is commenced; but the wages shall not

continue for more than 30 days.” (§ 203, subd. (a).)

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B. Martinez’s Claims

Martinez, in turn, raises several objections concerning the trial court’s award of

penalties under the Labor Code Private Attorneys General Act (PAGA; § 2698 et seq.).

Under PAGA, an “aggrieved employee” may bring a civil action “ ‘on behalf of

himself or herself and other current or former employees’ to recover civil penalties for

violations of other provisions of the Labor Code.” (Amalgamated Transit Union, Local

1756, AFL-CIO v. Superior Court (2009) 46 Cal.4th 993, 1001, citing § 2699, subd. (a);

see also § 2699, subd. (f).) Relying on this authority, plaintiffs here brought a

representative action on behalf of over 100 other former employees based on, as relevant

here, Martinez’s violations of section 226.7. And the trial court ultimately found in

plaintiffs’ favor on this claim.

In Martinez’s view, however, the court’s decision was flawed for two reasons.

First, echoing his argument on the damages award, he contends the court wrongly

“concluded that Plaintiffs were aggrieved employees [under PAGA] without considering

whether Plaintiffs actually took unpaid rest breaks.” Alternatively, even if they were

aggrieved employees, he asserts that the court erred in “failing to evaluate whether

Plaintiffs’ PAGA claim is manageable and/or requires an impermissible individualized

inquiry.” We disagree on both counts.

For the reasons discussed in part I.B. of the Discussion, we reject his first

argument. As we stated there, the trial court appropriately found plaintiffs took unpaid

rest breaks and were thus aggrieved employees.

We also find unpersuasive Martinez’s alternative claim that “the trial court was

required, but failed, to consider whether Plaintiffs’ PAGA claim was manageable and/or

required an impermissible individualized inquiry.” Martinez’s argument relies on two

unpublished federal district court opinions, both of which found PAGA claims could not

proceed to trial when too many “individualized assessments” would be necessary.

(Brown v. Am. Airlines, Inc. (C.D. Cal. Oct. 5, 2015, No. CV 10-8431-AG (PJWx)) 2015

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U.S. Dist. LEXIS 150672, pp. *9-10; Ortiz v. CVS Caremark Corp. (N.D. Cal. Mar. 19,

2014, No. C-12-05859 EDL) 2014 U.S. Dist. LEXIS 36833, pp. *11-12.)

Neither of these cases, however, supports Martinez’s position. Martinez,

significantly, does not seek to prevent plaintiffs from proceeding to trial on claims he

deems “unmanageable”—as was true of the defendants in his two cited cases. He instead

seeks to undo a judgment issued after trial, reasoning that the trial court, before issuing

the judgment, had a duty to consider whether plaintiffs’ claims were manageable. We

disagree for several reasons. To start, nothing in Martinez’s cited cases suggests that

courts in PAGA cases have some sort of sua sponte responsibility to consider

manageability. And in any event, in issuing a judgment in favor of plaintiffs, the court

here necessarily found plaintiffs’ claims were in fact manageable. Martinez may take

issue with the court’s calculation of penalties (e.g., by claiming it was not supported by

substantial evidence), but he cannot claim the penalty award was flawed simply because

the court did not explicitly discuss manageability issues.

Finally, Martinez briefly contests the court’s PAGA award on the ground of

insufficient evidence. He asserts, for example, that plaintiffs “presented no evidence to

support a finding that the PAGA employees took uncompensated breaks.” But Martinez

raises this argument in a section that, according to its heading, concerns only his

unrelated argument that plaintiffs’ claim is “unmanageable/requires individualized

inquiry.” Martinez needed to raise his distinct argument based on insufficient evidence

“under a separate heading or subheading summarizing the point,” as required under

California Rules of Court, rule 8.204(a)(1)(B). Because he failed to do so, we find he

forfeited this argument. (Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th

1826, 1831, fn. 4.) In any event, we disagree with his contention that plaintiffs

“presented no evidence” on whether “the PAGA employees took uncompensated breaks.”

Two of his former supervisor employees, for example, testified that they scheduled two

rest breaks a day for employees. And as discussed already, each of these breaks, like all

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offered rest breaks, went unpaid. Considering this evidence, the court certainly had at

least some grounds for finding the PAGA employees took uncompensated breaks.

The judgment is affirmed. The parties are to bear their own costs on appeal.