YVONNE PALACIO, Plaintiff and Appellant, v. JAN & GAIL'S CARE HOMES, INC., Defendant and Respondent, 242 Cal. App. 4th 1133

Opinion PEÑA, J. INTRODUCTION Plaintiff Yvonne Palacio appeals from the trial court’s order denying her motion for class certification against defendant Jan & Gail’s Care Homes, Inc. (Care Homes). Plaintiff contends the trial court erred in finding she failed to establish a well-defined community of interests among class members. At hire, employees of Care Homes are required to sign an agreement waiving their right to uninterrupted meal periods in accordance with the facility’s standard operating procedures.

Plaintiff argues Care Homes was obligated under the Labor Code to inform employees they have the right to revoke the agreement at any time. As a result, plaintiff asserts class certification is proper because Care Homes instituted a general policy or practice that violated wage and hour laws common among class members, current and former Care Homes employees. We disagree and affirm the order. As we interpret the relevant code provisions, Care Homes is not obligated to inform its employees they may have the right to revoke the agreement at any time.

FACTUAL AND PROCEDURAL BACKGROUND Plaintiff was employed by Care Homes from 1999 to 2013. Care Homes is a 24-hour residential care facility for developmentally disabled individuals (clients). Care Homes operates six 24-hour facilities in Tulare County and employs between 45 and 48 people. Employees work varied shifts, including full-time, part-time, day, overnight, afternoon split, and weekend-only shifts. Work shifts range between four and 10 hours.

The residential care industry is governed by titles 17 and 22 of the California Code of Regulations, which require on-duty direct care staff to provide 24-hour care to clients to protect them from illness, injury, fire, and other emergencies. As such, Care Homes requires direct care employees to work on-duty meal periods. At hire, it is standard operating procedure to explain to new employees they will be required to eat lunch with clients during the client’s meal period, they will be paid for their lunch period, and they will be provided the same lunch as the client at no charge.

Current employees of Care Homes confirmed the facility follows standard operating procedure in this regard. Employees of Care Homes are also required to sign an agreement waiving their right to uninterrupted meal periods in accordance with the facility’s operating procedure. Plaintiff, who was hired as a full-time licensed vocational nurse, signed the agreement when she was initially hired. On October 29, 2013, after plaintiff’s employment was terminated, she filed a complaint against Care Homes on the basis she did not receive off-duty meal breaks or rest periods required under Labor Code

section 226.7 and Industrial Welfare Commission wage order No. 5-2001 (Cal. Code Regs., tit. 8, § 11050; Wage Order 5), and alleging a violation of the unfair business competition law (Bus. & Prof. Code, § 17200 et seq.). On September 22, 2014, plaintiff filed her motion for class certification. The motion was limited to allegations in the complaint alleging plaintiff and the proposed class, 102 current and former employees of Care Homes, were deprived of uninterrupted meal periods under Labor Code sections 226.7 and 512, and Wage Order 5.

Care Homes opposed the motion, arguing plaintiff failed to present a viable cause of action. As such, Care Homes asserted plaintiff is unable to meet any of the requirements for class certification. On October 20, 2014, the trial court denied plaintiff’s motion. DISCUSSION The appellate court’s review of a class certification order is narrowly circumscribed. (Brinker Restaurant Corp. v.

Superior Court (2012) 53 Cal.4th 1004, 1022 [139 Cal.Rptr.3d 315, 273 P.3d 513] (Brinker).) The decision to certify a class rests squarely within the trial court’s discretion, which is afforded great deference on appeal. (Ibid.) Trial courts are ideally situated to evaluate the efficiencies and practicalities of permitting class action. (Ibid.) As such, we will reverse a certification order only for a manifest abuse of discretion, i.e., the order (1) is unsupported by substantial evidence, (2) rests on improper criteria, or (3) rests on erroneous legal assumptions. (Fireside Bank v.

Superior Court (2007) 40 Cal.4th 1069, 1089 [56 Cal.Rptr.3d 861, 155 P.3d 268]; Bunker, supra, at p. 1022.) To obtain class certification (Code Civ. Proc., § 382), the plaintiff must demonstrate “the existence of both an ascertainable class and a well-defined community of interest among the class members” (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435 [97 Cal.Rptr.2d 179, 2 P.3d 27]).

Under the community of interest requirement, the plaintiff must establish “ ‘(1) predominant common questions of law or fact; (2) class representatives with claims or defenses typical of the class; and (3) class representatives who can-adequately represent the class.’ ” (Ibid.) I. Predominate Questions of Law or Fact Do Not Exist As noted, Care Homes required all new employees to execute an agreement waiving their right to uninterrupted meal periods. The issue on appeal is whether Care Homes was obligated to inform their employees they may revoke the agreement at any time.

Plaintiff argues Care Homes’s failure to comply with this requirement constitutes a general policy or practice violating wage and hour laws common among class members and establishes a common question of law or fact. We conclude Care Homes was under no such obligation. The trial court held plaintiff failed to prove predominate questions of law or fact exist. As a 24-hour residential care facility for developmentally disabled individuals, Care Homes falls within subdivision 11(

E) of Wage Order 5. Under subdivision 11(E), employees may be required to work on-duty meal periods without penalty, provided the following conditions are met: (1) it is necessary to meet regulatory or approved program standards; (2) the employee eats with residents during residents’ meals; and, (3) the employer provides the same meal to the employee at no charge. Plaintiff does not contend Care Homes failed to comply with the foregoing and, as a result, did not establish a general policy or practice violating wage and hour laws common among class members. On appeal, both parties agree Care Homes falls within subdivision 11(

E) of Wage Order 5, which provides the following, in relevant part: “(

E) Employees ... of 24 hour residential care facilities for . . . developmentally disabled individuals may be required to work on-duty meal periods without penalty when necessary to meet regulatory or approved program standards and one of the following two conditions is met: “(l)(

a) The residential care employees eats [sic] with residents during residents’ meals and the employer provides the same meal at no charge to the employee; or “(

b) The employee is in sole charge of the resident(

s) and, on the day shift, the employer provides a meal at no charge to the employee.” Plaintiff argues the trial court erred by not holding, in addition to subdivision 11(

E) of Wage Order 5, Care Homes is also obligated to comply with subdivision 11(A), which permits employees to work on-duty meal periods by agreement, and to revoke the agreement at any time: “(

A) No employer shall employ any person for a work period of more than five (5) hours without a meal period of not less than 30 minutes, except that when a work period of not more than six (6) hours will complete the day’s work the meal period may be waived by mutual consent of the employer and the employee. Unless the employee is relieved of all duty during a 30 minute meal period, the meal period shall be considered an ‘on duty’ meal period and counted as time worked.

An ‘on duty’ meal period shall be permitted only when the nature of the work prevents an employee from being relieved of all duty and when by written agreement between the parties an on-the-job paid meal period is agreed to. The written agreement shall state that the employee may, in writing, revoke the agreement at any time.” (Italics added.) The resolution of this issue turns on the

interpretation of subdivision 11(

E) of Wage Order 5. “When a wage order’s validity and application are conceded and the question is only one of

interpretation, the usual rules of statutory

interpretation apply.” (Brinker, supra, 53 Cal.4th at p. 1027.) In construing a statute, our fundamental task “is to ascertain and effectuate the intent of the Legislature.” (County of Fresno v. Malaga County Water Dist. (2002) 100 Cal.App.4th 937, 941 [123 Cal.Rptr.2d 239].) The statutory language itself is the most reliable indicator of legislative intent. (Wells v.

One2One Learning Foundation (2006) 39 Cal.4th 1164, 1190 [48 Cal.Rptr.3d 108, 141 P.3d 225].) Therefore, the first step is to scrutinize the statute’s words, “assigning them their usual and ordinary meanings, and construing them in context.” (Ibid.) If the words are unambiguous, “we presume the Legislature meant what it said, and the statute’s plain meaning governs.” (Wells v. One2One Learning Foundation, supra, 39 Cal.4th at p. 1190.) However, if the language of a statute allows for more than one reasonable

interpretation, we will then look to the legislative history of the statute as well as maxims of statutory

interpretation. (Ibid.) The plain language of subdivision 11(

E) of Wage Order 5 is clear, unambiguous, and provides no textual basis in support of plaintiff’s argument that Care Homes, which falls within the ambit of subdivision 11(E), must also comply with subdivision 11(A). Subdivision 11(

E) is a specific provision applicable to 24-hour residential care facilities that enables employers to require employees to work on-duty meal periods, provided certain conditions are met. In contrast, subdivision 11(

A) is a general provision that permits employers and employees to agree to on-duty meal periods subject to a “nature of the work” test. Although the trial court did not discuss subdivision 11(

A) of Wage Order 5, inferentially, in finding subdivision 11(

E) applies to Care Homes, the court considered whether both subdivisions could be reconciled, and it correctly determined they could not. It does not follow that an employer could “require” an employee to work on-duty meal periods under subdivision 11(E), but the employee could, nonetheless, revoke the requirement at any time under subdivision 11(A). Under these circumstances, the word “require” would be rendered meaningless. Plaintiff’s

interpretation is also problematic because permitting employees to revoke the on-duty meal period requirement would place facilities like Care Homes in a precarious state. By law, Care Homes is required to provide 24-hour care to clients to protect them from injury, illness, fire, or other emergencies. If an employee were permitted to revoke the on-duty meal period requirement at any time and without advance notice, employers would have to alter scheduling practices to ensure the employee could exercise the right at any time, while ensuring the client still receives continuous care.

Even if this were feasible, we doubt it is what the Industrial Welfare Commission (IWC) intended; subdivision 11(

E) of Wage Order 5 already permits employees to take off-duty meal periods without revoking the on-duty meal period requirement. The express language of subdivision 11(

E) of Wage Order 5 makes no mention of an on-duty meal period agreement or the revocability of such an agreement. Rather, under subdivision 11(E), employees are granted the right to an off-duty meal period “upon 30 days’ notice to the employer for each instance where an off-duty meal is desired.” “When the Legislature ‘has employed a term or phrase in one place and excluded it in another, it should not be implied where excluded.’ ” (Pasadena Police Officers Assn. v.

City of Pasadena (1990) 51 Cal.3d 564, 576 [273 Cal.Rptr. 584, 797 P.2d 608].) We will not infer the IWC intended to grant employees of 24-hour residential care facilities the right to revoke an employer’s on-duty meal period requirement where it has not expressly done so. The trial court did not err in finding plaintiff failed to prove Care Homes operated under a general policy or practice that violated wage and hour laws common among class members. Care Homes was not obligated to comply with subdivision 11(

A) of Wage Order 5, and plaintiff does not contend Care Homes operated in violation of subdivision 11(E). Thus, the trial court’s finding that predominate questions of law or fact do not exist was not based on erroneous legal assumptions. II. Plaintiff’s Claims Are Not Typical of the Class DISPOSITION The judgment is affirmed. Each party shall bear its own costs (Lab. Code, § 218.5). Franson, Acting P. J., and Smith, J., concurred. We note a separate subdivision within Wage Order 5, not applicable here, permits health care industry employees to waive their right to a meal period and to revoke such waiver at any time, but requires “at least one (1) day’s written notice” to the employer: “(

D) Notwithstanding any other provision of this order, employees in the health care industry who work shifts in excess of eight (8) total hours in a workday may voluntarily waive their right to one of their two meal periods. In order to be valid, any such waiver must be documented in a written agreement that is voluntarily signed by both the employee and the employer. The employee may revoke the waiver at any time by providing the employer at least one (1) day’s written notice.

The employee shall be fully compensated for all working time, including any on-the-job meal period, while such a waiver is in effect.” (Wage Order 5, subd. 11(D).) Plaintiff contends Gerard v. Orange Coast Memorial Medical Center, review granted May 20, 2015, S225205, is instructive because as a general matter, class action liability may be established by an employer’s illegal policy. She argues, similar to Gerard, a potentially viable cause of action was also established here. However, plaintiff’s reliance on Gerard is misplaced.

First, Gerard is currently under review by the California Supreme Court and may not be relied on or cited. (Cal. Rules of Court, rules 8.1105(e)(1), 8.1115(a).) Second, in response to Gerard, the Legislature recently enacted Senate Bill No. 327 (2015-2016 Reg. Sess.),

section 2, effective October 5, 2015, which amended Labor Code

section 516 to ensure meal waivers by health care industry employees under Wage Order 5 would be valid and enforceable. The purpose behind Senate Bill 327 was to clarify the law so hospitals would not have to alter scheduling practices as a result of the appellate court’s decision in Gerard. (Legis. Counsel’s Dig., Sen. Bill No. 327 (2015-2016 Reg. Sess.); Stats. 2015, ch. 506, § 2.) See footnote, ante, page 1133.