the district courts and three of summary judgment for defendant san luis ambulance mr stewart's california state law wage and hour claims the second appeal is a sell lay's appeal of the district court's award of attorney's fees to mr stewart on the two overtime compensation claims on which she prevailed so i'd like to first address the merits appeal in particular the respray claims and the period claims mr stewart was an e m t with for about eighteen months and there's no dispute that he frequently worked in twenty four hour shifts and that during those shifts he was required to remain on call throughout each of those twenty four hours prepared to respond to incoming emergency calls does entirely your honor at the time the district court held in favor of s l a on that issue it didn't have the benefit of the augustus decision and augustus does conclusively resolve it perhaps you should move on and see if the opposing counsel takes issue with that fair enough  should go with the augustus decision when on the other hand we have the moody and the moms on cases that apply if you will ambulance industry cases my biggest problem is that when i look at the wage orders they seem pretty good and yet seems to me there's a tension between the interpretation of the wage order for and the california courts recognition of special considerations that applied to the ambulance industry which are recognized in my book  three k of wage order nine and moody and the months on so i'd like you to answer i mean seems to me it was an easy one to your question here answer to judge rawlins because it just it fed on exactly what you've pled but i think the biggest problems are what would are moody and mom's on tell me and what would three k of the wage order nine how would that deal with that sure your will special considerations which are given for the ambulance industries need to have twenty four hour shifts of duty and they gave special consideration given the ambulance industry and so my worry is would really the california supreme court just fall right along and do what they did in this other eight wage order or would they look at it differently simply because it's an ambulance industry problem i think i understand your question and the answer is they would not look at a difference why there is no special wage order governing strickly the ambulance industry there is no special body of law that applies referring to but but section three k of the governing wage war does not swallow all the other provisions in that may bring created doesn't swallow but what it does is when there's language which is similar if in fact the ambulance industry needs additional consideration based on the idea that over time doesn't really fit in can i really say i know where this california supreme court is going yes for several reasons first of all you've identified it exactly right three k deals with overtime compensation it doesn't deal at all with the on duty versus off duty agree and there's nothing in the wage order that says that three k is somehow renders nugatory all the other provisions of the wage order i think there are two if this were before the california supreme court i think there are two things that would be front and center for that court it would say first as it does throughout augustus this state interprets california's labor law liberally in favor of workers rights it that decision is replete with that we've always said that the wage we're the wage earners are going to have a large leeway and how we interpret our laws they could have easily said over time should shouldn't have got the  consideration it did in those cases well i think the relevance of both those cases and certainly the way the district court interpreted the relevance of those cases was as to this in writing requirement and the duty mil period revocation language now what's interesting is act moody actually had a written agreement and manzano the the holding of montana is actually fairly narrow it says employer and employee can agree to exclude from straight compensable time the time the employees spend sleeping that's all it says and i think the district court read more into the holding of manzanar than that case really bears now there's a few other reasons why i think the california supreme court would not follow manzano here in a way i want you to tell me that but i mean the bottom line when i looked at this case i said why not certify it over to the california supreme court and let them decide this issue but that if i do that that is an option before this court i can't deny that but i think this court has enough information in the relevant legal authorities in front of it that i think it can confidently say how the california supreme court might decide this and so may we assume that the view i would say that the california supreme court has taken of manzanar i think this court can fairly infer that the california supreme court would not follow   really from our perspective this is a matter of straight up statutory interpretation the wage orders are construed according to ordinary rules of statutory interpretation to provide a strictly on duty mill period which is what we all agree a did you have the employer has to comply with the three statutory prerequisites to do that the first of those is it has to make a showing that the nature of the work is such that an on duty meal period is the only viable option the second is that the employer and employee must enter into a written agreement to that effect and third the employer has to give the employee written notice of his right to revoke the on duty meal period at any time so  case to support the notion that if the employer as a matter of fact provides the mill period but the only deficiency is the failure to provide the revocation notice that that net constitutes a violation of the wage order i think cases that well i there's this issue has never been squarely presented and any court that i'm aware of but i think the answer is it ordinary statutory interpretation rules the section three c or excuse me eleven c governing the mule period violations says that revocation language has to be in writing and over and over again  the california supreme courts and other california courts have said we apply the ordinary rules of statutory interpretation we give each word its meaning and so therefore i think it has to be given effect here seems to be a technical violation as opposed to the failure to actually provide the meal period so that that's what's troubling me a little bit that is whether or not because of a technical violation there should be deemed to be a violation of the wage order and to be clear your honor we don't dispute that mr stewart was able to take meal periods and he was paid for them and certainly isolate wants you to believe this was a mere technical violation but i'm just asking the question because it's not we don't have the facts where the meal period was actually not provided we just have we not just but we have a failure to put the revocation language in the agreement so two of the three requirements were met and that's what m says one way or the other there's not a case that says one where the other but i would say this anytime an employer fails to comply with the requirements to offer a strictly on duty period or fails to comply with any statutory prerequisites that's not just a technical violation there's a real harm there the industrial welfare commission thought that this issue was important enough that it shows to expressly address it in the way george r and it shows to require employers to have to inform their employees in writing of their revocation rights so given that i don't think it's fair to simply say it's in your technical violation there's been a real harm here there were two derivative claims derivative of the substantive claims that the district court also granted summary judgment on those where the waiting time penalty claims and the wage statement claims we have challenge those on appeal worried do we have a willful and intentional violation well i think it's important to keep in mind what the definition of willful is here and it's not malicious it's merely did s l a fail to comply with a legal duty that it had and it did it  the rather than i think there's a good faith dispute here between the parties about this particular issue but i'm still having a tough time even under your definition which are now suggesting to say that it is willful an intentional well actually knew of this requirement and we know him knew about it because it had a separate it had both a twenty four hour shift agreement and what it called a day car shift agreement which i understood the reason it didn't included in the twenty four hour agreement is for the same kind of if you will considerations that it offered one was not it but other parts of the ambulance industry challenged in the overtime area yes and i saw at that point i'm again trying to figure out why this will fall or and well this is where i think we get into what i believe is the disk records over reading of the mons on case that the district court says look the no twenty four hour shift agreements need to be in writing and it cites montana for that but that's certainly not what manzana holds and so i think the difficult just as i said read too much into what monson just doesn't support that kind of order nor any other case or body of law supports the notion that that section dealing exclusively with overtime compensation somehow relieves the employer of duties with respect to what it has to do to provide an exclusively on duty i think you you jump to conclusions i mean the problem that i have with his whole case is that it seems to me i can get where you want me to go in dealing with the parts of the industry which would definitely be affected by those wage orders and they interpret them to them my problem is i've got a case dead on that said i mean in my book an application of the law as it relates to the ambulance industry was not applied as i would have applied it if it  ambulance industry as it related to the overtime and the twenty four hour shifts and i read through it to try to figure out what it is and again i'm still there i don't know whether the california supreme court has had a change in feeling as it relates stamp elance is because there's no question annulus drivers have to be there all the time it's not one of these things where ambulance drivers are like the other cases that are cited here that the california supreme court has if you will address those wage orders so my worry is and that's again where i am on w to suggest that now st louis ambulance is willful and intentionally doing that is a tough case for me well i think the california supreme court wouldn't follow manzana in that it's really let me begin by addressing some of the questions that you asked appellants counsel on the merits of appeal and let me first take a step back because one of the key things to keep in mind is that the rest period cause of action and the meal period cause of action were not premised on merely alleging a violation of the wage order they were seeking a penalty under labor code section two to six point seven the reason that is important is because first of all labor code two to six point seven i believe that subsection b only authorizes the penalty when the employer fails to actually provide a rest period or a meal period that is in accordance with the  wage order not a technical violation second subsection he says that the penalty is not authorized any time that the employee is exempted under any other provision of law including other provisions of the wage orders subsection he gives this court basis independent of all the legal arguments made to affirm the district court's determination that mr stewart failed to raise a tribal issue of fact with evidence showing either that he was ever denied a meal period with opposing counsel for his part of the  meal period and that's why i ask this question is part of the now of the me a note of the rest period is to have all of the required written agreements and district court pointed out both of them correctly the first is under section three k of the wage order as interpreted by the mons on case and the the only subject on which an ambulance company and an ambulance driver must agree in writing is the topic of whether to exclude hours from overtime the other two topics mentioned in the three one hour meal periods and a sleep period of not less than i'm sorry not more than eight hours those two topics mons on says because of the federal regulations on twenty four hour shifts  emergency services those two topics do not need to be the subject of a written agreement and manzano holding was that they may be the subject of a non written agreement now as the district court correctly discerned from that if i do not have to have a written agreement with you as a twenty four hour shift ambulance driver on those topics then i certainly don't need to have a written agreement with you telling you that you can revoke our oral agreement or any other agreement on those topics so the district court correctly pointed out that it would be entirely inconsistent with three k and mons on to impose the written requirement of eleven section eleven of the wage order on the topic of mill periods where the parties have agreed that you'd be paid even though under three k we could exclude them entirely from the calculation of hours worked so what's the length of the precise a language in months on that you're relying on to say that there is no requirement for written agreement in the mail period cont that the sleep time needed to be compensated or should be counted toward overtime and the issue arose in monza on because unlike alcudia the parties in mines on had not created a written agreement to specifically deal with the topic of not only twenty four hour shifts but also sleep time and meal periods the ultimate conclusion of the court based largely on the federal regulations was that the agreement regarding how to treat sleeping time hours did not have to be reduced to writing and that it was proper for the court to rely on the evidence of the parties oral agreement and implied understanding's regarding sleep time and in doing that analysis the court said you can have an agreement that is lawful under three t and yet is not reduced to writing on the topics other than the overtime aspect so on the topics of sleep time and the three one hour meal periods whether the agreement is that we will exclude them from hours work or whether the agreement is as in our community we will nevertheless pay you for them even though your undisputedly asleep that it doesn't have to be in writing it follows that if it doesn't have to be in writing on those two topics sleep periods meal periods then you can't create a conflict with another part of the wage order by saying that you have to have a written agreement that says you can revoke it in writing now let me move on to the second point that the district court made that is also important and that has nothing to do with months on the district court found that the parties here had in mr stewart's twenty four hour shift agreement included a provision that expressly acknowledged that the agreement itself was at will and mr stewart acknowledged in his deposition and it was in the undisputed facts that he understood that the at will provision meant that at any time and for any reason he could revoke his agreement providing for twenty four hour shifts of duty providing for three paid one hour meal periods providing for paid sleep periods so the district court found in fact that the agreement mr stewart entered into with sam was sandilands had a written provision that substantially complied with the requirements of section eleven with regard to an expression in writing if he had a right to revoke allow me to turn to the rest period issue the question be fair i think we can understand your idea on the wrist issue but i am i mean arrested in judge roland's questions about that i guess my worry about what the court has done to they question to the cases as it relates to huck moody and mons on it seems as if they've been very critical of them and they only stand because they didn't throw them out so and then i get these other issues other cases which in my book if i were to follow those cases and apply just the way jordan it would seem to me that you would know when so i'm trying to figure out is does this warrant me certifying this case to the california supreme court i would respectfully suggest it does not for the following reason let's not lose sight of the fact that the appeal is from a summary judgment or some partial summary judgment grant that grant was based on the failure of mr stewart to create a triable issue of fact now let us focus on the facts that are in the record that are very different from the facts that were decided in our gustus in augustus you had security guards who had to keep the walkie talkie with them had to stay in the guard shack the record in this case shows and the district court's order reflects its findings on these points that mr stewart was not required to stay in the rig he was not required to stay in the station he was permitted to leave the station there was evidence that he frequently did so there was nothing to restrict him from engaging in purely personal risk pursuits during that ten minute period of rest the evidence was that he frequently slept watch t v surf the internet went outside to make personal phone calls he admitted a total inability to identify a single occasion or to point to any of his actual time records showing that there was ever a c f s where he did not have the opportunity to take at least three ten minute recess periods without interruption now why is that important because the california supreme court you know augustus which it acknowledged was decided only under wage order for your wage order five not way to order nine and neither for nor five governs ambulance drivers nor has section three k regarding principle is the same and the words are the same the words in the rest period section are in fact the same but you have to take into account three k when you're deciding how do i interpret the reconcile disparate parts of the way jordan we're looking at which order nine nevertheless let's go back and see what they had to say in all gustus about what it means to have rest periods because there's a potential here for us to get hung up on semantics when in rule let me respectfully suggest you don't even need to predict how the court would rule let's look at what they said and i gustus and then apply it to these facts because the court denied summary judgment i'm sorry granted our partial summary judgment based on their inability to produce evidence of certain facts here's what the california supreme court said in augustus right now i'm looking at page eight twenty six the front part of their holding during required rest periods employers must relieve their employees of all duties relinquish any control over how they spend their time if you look at the record the record is clear mr stewart failed to introduce evidence that any shift when he did not have the opportunity to do whatever he wanted or leave the station or the rig for three ten marriot minute periods of rest now is it your argument that the employer lucas control over him during those period happens or not doesn't eliminate the control in fact your honor it does because as the court said in augusto us nothing in our holding circumscribes an employer's ability to reasonably reschedule arrest period when the need arises that does of solve your problem well it does in this case because the district court found that in every one of mr stewart's logs there were hours of time when he was not being interrupted by or responding to a call that's so yes that's suggested just simply because he wasn't that there's a problem the problem that i had with your interpretation there is if they have the control it seems to me that what augusta suggests is that they reschedule a periods of time when there is no control and the reason you can't read that into augustus your honor is because if you  interpretation then wage order nine becomes internally explosive because you cannot have a section in three k that specifically authorizes quote twenty four hour shifts of duty for ambulance drivers and at the same time require that during some portion of those twenty four hours they be not subject to the hypothetical interruption the only way to reconcile those two sections within the wage order is to read augustus and realize that the hypothetical eruption of your arrest period is not the same as the actual interruption here any time mr stewart was interrupted he had other opportunities throughout the day to take that ten minute rest period that just didn't occur because you got interrupted leave the station leave the rig engage in purely personal pursuits which is why the district court found that he failed to introduce any evidence that he was ever denied an actual opportunity to take ten minutes of a rest which is all that augustus requires i will reserve the rest of my time  must be commensurate with the result of sheaves there is not a single case decided under the fair labor standards act that finds it commensurate to award more than one hundred times the amount recovered in attorney's fees and yet the district court here ended up awarding one hundred and seventy seven times the amount recovered where only seven hundred fifty dollars was recovered so do you think with the hourly rate we did in the trial court is not an issue with this appeal and if you don't take issue on appeal with the number of hours claimed i i don't know precisely what you mean by that we certainly do have powers that they said they spent working on the case you take issue with that we take issue with the hours that the court used that were taken for example from the j vine case other than that we take issue with the hours that the court relied upon that had to do solely with the discovery dispute and the pleading amendment motions that related only to the pog a cause of action which had no overlap or relationship whatsoever with the fair labor standards act over time it was my understanding that if you took issue you took issue in the district court right i mean yes we  certainly took issue in the district court and the district court ruled against you yes it it incorrectly oh i understand you say incorrectly but now we're at an abuse discretion standard are we we are not with respect to a number of the issues you're on which ones obviously the i mean my worry is that most of your claims go to what you dispute as to the hours and as to the amounts paid for the hours and whether they should have been paid at all and i'm trying to figure out why those aren't abuse of discretion standard right decisions that there's a number of reasons why they're not first as i mentioned there's the overarching consideration the obligation to achieve i understand then answer arching there was an elf second with respect to the j vine fee issue the jay vine case resulted in a final judgment that final judgment was based on an accepted rule sixty eight offer the question of collateral estoppel of fact of the j vine judgment is a get the j vine issue with she's now question what else the j vine issue of course the moment that you either exclude those eighteen thousand dollars of fees or you give us an offset because we paid those eighteen thousand down and the moment you exclude those day by an amount of the answer is no they did not according to the district court's own math so if there was an error of law on either the collateral estoppel or the interpretation application of the j viral sixty eight it flows directly into the trial court's own math establishing that they did not do better the moment that you accept that proposition you must apply the courts that the ninth circuit holdings regarding what's the appropriate mechanism for adjusting downward fees incurred after turning down and a reasonable rule sixty eight offered here the court made no effort to adjust those fees downward because it didn't find that there had been a better offer or in this case two better offers they were each turned down all right counsel will hear from the other side honor let me start by addressing the fees issue as dr smith point out this is an entirely discretionary determination and there's no requirement in the law of the circuit that there has to be some kind of proportionality between the damages recovered and the the attorneys feel or issue of whether or not the rule sixty eight offer was better it's not necessarily an abuse of discretion is it well the the rule sixty issue i think is really beside the point even if this court were to conclude that one or the other of the rule sixty eight offers were more favorable and i thought this plane why they were not based on this court's champion decision but even if they were this court's decision and hayworth says so what because this is the underlying statute here is the f l s say and because the f l s say defines attorneys fees separately from costs will fifty eight excuse me rule sixty feet shifting doesn't even apply so there was like also apply if the district court included the attorneys fees in calculating the whether the rule sixty eight was triggered well the in determining whether the rule sixty eight offers were more favorable the district court under champion had to consider the fees that were accrued as of the date of those offers and when you look at what those fees were they do war what the rule sixty eight offers were so that resolves the real sixty eight issue but even if it didn't hayworth resolves it because hayworth says even if one of these rule sixty eight offers were more favorable the underlying statute being an f l s a statute plaintiff is still rick entitled to recover post offer fees so what is your response opposing counsel's position that once the fees were paid in the prior case those should have been off it seems like a reasonable position seems like it but it's not why not because he is ignoring the fact that m stewart's counsel were appointed by the district court to represent the interests of the consolidated case that means both cave line and stewart like jack but the but that was after the fees have been paid already for the both filed in the fall and winter of october thirteenth at the time they were found counsel was not counsel for a stuart council that was appointed to represent the consolidated action just a few months later in march twenty fourt fourteen the court appoints mr stewart's counsel to represent the consolidated case both j vine and stewart because the claims are identical the case proceeds to litigation ultimately settles all the filings had been under the j vine case number to that point once trayvon settles the court reopen stewart administratively and counsel continues doing what they had been doing all along representing motion for classification and the motion to amend the complaint though the work the council sought fees for was all work that benefited in advance to the consolidated case discovery that was taken the positions that were taken and let me put it this way to the attorneys here who initially represented exclusively mr stewart and then became appointed by the court on behalf of the entire action they performed all this work pursuant to their duties to do so the under s allays logic if these billing records had appeared on the records of j vines excuse me its original counsel they would pay it the fact that it's simply the billing records of counsel for the consolidated case is immaterial so it makes perfect sense that the court would have awarded the time  that was the pre j vine settlement time the council accrued in this case because it had danced the entire case and the total amount of fees in connection with that was actually about thirty six thousand and the district court reduced it by fifty percent which is an entirely reasonable exercise of discretion in saying well the cases were consolidated portion fifty percent of j vine that's already been paid a portion fifty percent to stewart you can recover that was an entirely fair could not be farther apart on this issue but so help me yes why is that i mean let me try again and i'm going to try again by way of trying to answer a question that george rawlinson posed and that is what's the language in mons on that we're talking about here here monson again deals with the over time provision in the very first sentence of my is a bit the very first sentence is the major issue raised by this appeal relates to the proper method to use in calculating over time argument is this one we hold that it is permissible for an employer an ambulance drivers and attendance to enter into an agreement would he need not be written to exclude up to eight hours of sleep time from work or compensable time and twenty four shifts that only deals with compensation it says nothing at all about the on duty period requirement and then we tried to mendiola montana's twenty seven years old it was issued by an intermediate california court of appeal over a descent i would argue this court not to follow a precedent of nearly thirty years all that is the law only according to two california justices and it's the law until over ruled by the supreme court's the law and compensation agreements  says nothing on duty meal period it doesn't relieve an employer of complying with eleven c it doesn't say that in no decision says that and then when you turn to mendiola mendiola really doesn't like montana doesn't like its language it says not a written agreement to avoid paying overtime but does not need a written agreement to avoid paying any compensation at all i think the california supreme court is saying should have overruled it yet well the issue was squarely present in fact it says the let me quickly address an issue that i think is a straw man issue counsel suggests that it is quote immaterial that the time build in the j vine case was have gladly paid and of course they didn't bill the time the reason it's not immaterial is because mr ball to don no counsel for j mine excepted a rule sixty eight offering j behind that told him he was going to be paid one hundred fifteen thousand dollars for all of the costs and attorney's fees as well as the underlying liability in that case and he accepted that offer and merrick versus chesney says that we have the right to write an offer and have him understand that it wipes out all liabilities and we actually paid that liability they got the hundred fifteen thousand and they got paid for every minute of time that they build in the j v mine matter that she's saying that because the cases were consolidated that they weren't paid for the store consolidated case and that that's how can i go what's your response to that my response to that that was not correct well it is correct your honor it's it's in the record he always at all times had his own counsel dion kingdom and blanchard they never withdrew they never associated in the others mr my problem my problem again i know you suggested that i was out to lunch but my problem on this is that it seems to me that as long as the district court correctly applies the rule sixty eight standard in determining the factors or the facts to be involved in a and that application of standard that again is discretionary well i know you suggest no that isn't discretionary at all but i don't think he got a case on that and furthermore i believe that in these kind of circumstances unless that district court is clearly erroneous in its application of the facts to the standard i don't under the district court and that's the reason i asked the question i did and the i know you suggest no that's a question of law well i don't think that's a question a lot of other had all you are the hayworth this i understand what they were says this court  hayworth said we reviewed you know however any elements of legal analysis and statutory interpretation which figure in the district court the lord legal analysis of statutory interpretation there is no legal analysis in determining what to do with the rules sixty eight offer of proof it's a matter of determining what exactly what whether it was made or whether it wasn't made hasn't this can't be a legal decision i think that we could all agree that how to apply principles of race judicata and collateral stoppel is at the end of the day a legal analysis with sat the stewarts council has never in the briefing they were appointed and counsel for the consolidated case that district court could see it well half of it is attributable to steward and half of it if the trip to the cape on isn't that a discretionary call that is not a discretionary call your honor because a it violates it that basically allows the court to go back in amend the g vine judgment which is effectively what it did and yet of course there was no timely motion to do that and it violates principles of collateral and it's contrary to the rule sixty eight offer in j vine that the ball to donna when born firms excepted in j vine that said they would only receive one hundred fifteen thousand for all the work they done in that case on behalf of anyone that they purported to firm had ever represented mr stewart in any capacity whether it was and here's his quote as of february twenty sixth twenty fifteen that's the date they accepted the j eight offer for one hundred fifteen thousand for all costs fees and liabilities neither i nor my co counsel paul haines and fletcher schmidt represented plaintiff stewart at that time including as interim a lead class council since the court on january thirteenth two thousand and fourteen denied plaintiff j vines motion for class certification under rule twenty three my office and mr haines office did not file associations of counsel in the stewart action until march seventeenth twenty fifteen that's after the first stuart rule sixty eight offer and it's more than a month after the j viable sixty eight offer  interpretation of the j vine rule sixty eight offer is a a question of statutory interpretation contractual interpretation there's absolutely no question that is subject to denote both consideration by the support  crystallize why this ought to trouble the court in march of twenty fifteen after j vines counsel who is not yet representing stewart has accepted an offer that all of their time in the j mine action will be compensated by a hundred fifteen thousand dollars in that case the defendant in the stewart case has to write a rule sixty eight offer refuses to write one in the stewart case at that time stewart has only two counsel of record dion kinda him and blanchard we write to them the rule sixty eight offer there is no way for us to know in writing to them that there should be an inclusion for them of fees allegedly occurred by someone who doesn't represent him they in considering whether or not to accept our offer cannot conceivably evaluate it based on fees incurred by someone else in another action that has already been settled and is now the subject of a final judgment it would absolutely undermine the policy purpose behind rule sixty eight to give the interpretation or the legal analysis that the district court did in this case with regard to the j vine fees with regard to the appropriate yardstick to use when looking at did they do better or did they do worse we respectfully submit that that's why you need to reverse the trial court send it back with clear instructions how to correctly apply the correct legal analysis the correct statutory interpretation and to reach a commensurate result thank you counsel