dealing with the fact that we are reviewing a decision on the summary judgment and whether there was a tribal issue of material fact i would then like to discuss the difference between what would be a commute and what are actual duties that have to be performed and how that would not humans that you raise in this case for rejected by the california court of appeal and hernandez versus tactile right that is correct in that way how do you distinguish this case from hernandez supreme court do they did not grammar of you but they gave no reason so i nor anyone that i'm aware of can speculate as to the reason whether i know but but you from the standpoint if it was so wrong that you have when you petition for review that is the highest court and they can if they choose correct it if it's really wrong so i wouldn't i guess from the standpoint i don't think it takes all the wind out of your talks about the plaintiffs object to what they see as importing the federal overt exertion rule into california law they contend this rule comes from the rice being new york city transit authority and that's the nd district circuit court and that was the the issue there they suggested that i was suggesting that it's a it's over exertion and nothing more but between work and exertion we find nothing in augusta's that is inconsistent with taylor so i would miss that they addressed exertion but our california supreme court has explained that work as opposed to rest can come in three forms sation of work exertion or activity and in this particular case if we look at it where we are in terms of this particular program st of all when you look at it at the home home program one of the things that differentiates this case from others is they actually identify traveling from your home to the st job as an actual work activity and that's it for the right in their in their own policies and it doesn't and and employees who elects to participate in a home start program can start to shift to sorry outlined by local management at his or home once the technician contacts t to w f a reviews the st work order and work begins the commute in the st work site any regular work tasks and example traveling to st job they've define each segment as it wishes to provide it's not required by statutory law and i'm not necessarily saying that but is certainly an argument could be made there what i am saying is this what are we really talking about here a commune i think we all agree is we get in our car if we want to stop at starbucks we get a coffee we drive we pick up kids that's fine ok here in the situation is there on the program and do well if so what facts and record indicate that cox field missions were required to purchase a star ok well this brings me back to the issue of we are at a summary judgment in reviewing there is five hundred and ninety six people in this position and that's i believe we are seven hundred and thirty four that cope the lisa cope declaration and she talks about that these documents the opt in selection form where you check the box are maintained she went back and located those ones that were kept where people elected for it and produced those where employees did not elect home start they simply did not sign any document at all ok so that brings me to the fifty declarations that i referenced in there one of the things that you're not going to find in eighty two percent is the election document the check the box which is the one that says this is how you go on the program there are ones where normal boxes checked and they go on the program so if it's not looking at this and trying to evaluate this if this they knew at some point that they were in this program the question is did they know that they could not participate in the program they chose not to and there's the point that's why there is a material issue an issue of material fact because  is you have these companies who set up these elaborate policies these documentations they get everything signed the new hire packet there were maintaining all these records and then you know what happens great firms great firms like shepherd go oh my god we don't have the election form for these people what do we do now all i know let's go to fifty less than ten percent of the of the class and you're talking about wiping out the claim to five hundred and ninety six dollars people on statements made in declarations that oh yeah i understood it was optional what is optional mean i'm yes optional but i have the option to come here today i understand that that you really did passionate because one of the things that's frustrating for me  is the way you opt into this form this is the way you would like to ok and you get that and at that point you must believe i have a choice ok so how do you end up where you go there you go there's no evidence that and let's assume that three of your text there's no evidence that you got the form saying you have an option do it there's no evidence that you got the phone there's no evidence what there is is declarations after the fact to say when you didn't have any proof to show you have to establish the option was given to these people and that's where the missing link is and it may at the end of the dig at trial prove out that yes they were if this option had been given to everyone you would have five hundred and ninety six forms and you would see some checking no you would see some sect checking yes but instead you don't have that and what you have look at the least the ca on the record shows that you have five hundred and ninety six people you have at least three or four were no boxes checked and they are on home start you have  petition for review was denied but then you also have alkan tarbush this hobart which is a th circuit case which the district court mentions what do we know really and analysis so i would say that from my perspective and i only i'm speaking for myself i think hernandez is something i have to take very seriously in terms of what california law the highest court what california would do but i also  i think we would probably all agree that we're bound by our own th circuit precedent and so that that to me is a brilliant was done with the th circuit mind how does you know  used to tell me that was wrong to correct so essentially i agree that when you just said that the only way that council could make a persuasive case that you depart from either all cantars from hernandez would be to fact ually distinguish this case in some material way i don't think anything in the papers factually distinguished all cantars cantars set forth a gloss of how you decide in cases where people  country did involve people who carry tools and equipment on their trucks and they make mention of that in passing that that was part of the of the record there so i think that the fact they didn't expressively say well this would change the an doesn't alter the fact that people who carry tools and equipment on their truck and bring it home at night if they have an option to do so the time is not compensable i think the question of so for a permit to work is addressed definitively and the hernandez case though would not follow it and there's actually no reason to think the california supreme court would not follow it because if you start at the california supreme court authority in really and it sets forth that same test and it's been carried consistently  employee suffered or permitted to work requires a work related exertion or the performance of work related tasks i would you know there's no california supreme court case that expressed addresses that issue there is the general way that you view the interplay of federal and state law wage marilyn california we started to enter a hunting center of hunters and moreover superior court case there are many many times where california says we're different than federal law and they point to something in the statute like for example in really in the points in the wage order there's a different definition of hours worked than exist under the f l a say but generally as a starting point you look to the federal law unless there's a difference between california and the federal law there is no difference that has been identified in california law of suffern permit to work with that means versus what it means under the f l a say there's a whole controlling that we've been talking about that i think is off the table because of all cantars that's a uniquely california concept that cuts supreme court would find different that's the th circuit standard how you look at intermediate california appellate decisions on california state law so i think unless you have a strong reason to think it's wrong you have to follow it and you're supposed to and one made any action that but you being from shepard mullen would be apoplectic with fear over that fact and it means something what what your response to that i don't sit well st of all there was different regions only one of the regions had the form that had this checkbox he talks about other forms you said you want you adopted that you signed up for the program another in the policy itself of the program says it's voluntary and says you can quit anytime you want i believe it footnote twenty percent so i will as you're going through this forgive me for not doing it as you're going to this what's important to me is to say that everybody was given notice that the program stops this because everybody has to i think when they walk with their feet i understand wh and one of the regions because it used to be three separate regions and they all got consolidated there was the santa barbara region there was the orange county region there was a san diego region in the santa barbara possibly the orange county region they had a supplemental form you also signed where you just didn't check it on the form he signed it and the form says it's a voluntary program and he didn't check the box i left home stark but i asked him if his deposition did you or anybody ever coerced you to do this and he said no and we have evidence that people aren't doing it and that was contact the reason they lost summary judgment the defendant lost in that case is because there was evidence that every single person was on their quote on a home start and that there was some arguable coercion at least two of the judges was a split decision that there was evidence in the record that there was coercive there's nothing here there's no evidence of coercion there's a signature for each employee of the recognizing the homestar for me never mind checking the boxes but not in the key receipt yes i think that's in the record and we have the all the decorations they were attaching one of the decorations in the record has the forms of various forms attached and there's also just there's all these declarations from witnesses saying that they understood it was voluntary they were told about it  the box or signed the form or otherwise it just it just verifying that part of the routine practice was to give folks notice of this program i think everybody was provided with a home start guideline i know you keep saying i'm just i'm just like i'm missing that one of the i guess i'm missing what i'm footnote twenty six dollars the homestead agreement document plaintiff science sets forth some of the basic home start rules including the following statement and it talks about it and i believe in that same document argument on either side that i think expands this notion about federal and california law being different to almost the sense of california some kind of bizarro world where whatever the federal standard is telephone is the opposite and that's that's not the law i mean it's true california is often more protective and california has expressed their desire to be more protective in certain ways and it's manifest itself in wage orders or in language in the statutes there is nothing whatsoever that does on this suffered permit test that suggests california intended to  because but they put in those changes they're still case law and i think even the california supreme court has recognized that the starting point because often a lot of these california laws started off as adopting the f l s they interested in changed over time and that's one of the points i i guess the very last thing that's i have three minutes to go in the augustus decision i really think that's off point augustus is a you know other control case the notion there was that there's control concept in the rest period law you have to be relieved of control kind of similar to the same notion of if you're under control you're still on duty and they held that security guards who could be called back were not really off duty so they were effectively still under control we've already established that the control problem the plaintiff loses as a matter of all and just as a matter of going back to them early in case there's no control here because they have the option and the record is there's no there's been no fact disputed or no evidence of a dispute that people had the option not to participate in this program and again it doesn't address the concept at all addresses the concept of what does it mean to truly have a rest period for a security guard in the notion was security guards if they could be called back at any time the whole notion of being a security guard has to be like jump in to address  a emergency so effectively by being on a radio they can be called back any time they're still under control and therefore not an arrest period it has nothing to do with whether you have to exert to meet the suffered a permit prong it's not even it's not even a case about hours badges but that would require compensation for hours worked under california law if there was no exertion requirement and it was simply that you brought some piece of equipment that you used in your job with you in your community you would it would go further i brought this pen with me to court this pen and used to take notes that as a tool of my work everybody brings i phones everywhere they go they use it work it basically would write it would be an exception it's well the rule is the records show anything besides transporting it that was already in their vehicles none any time they spent taking the women on or off the vehicle was compensable that was paid time the only time we're talking about here is from they do their last duty in the field they are due no further work other than driving their car home the view that the equipment stays on the vehicle overnight they never take it off the vehicle and i get home there's no delivering of anything and it's just basically driving home and it's going to be no matter what they carry univer was heavy equipment so long there were people had actually operate heavy equipment and drive it somewhere that they said it was different so i don't think it matters it only matters if you as the employer are required to do something more than just  thank you thank you i think that really it is very clear i get the idea that where california may be silent you will look to the federal law but this is one area where one million went out of its way to make clear when you're dealing with drive time you have the portal portal act it's rejected the employer commuter flexibility act it's rejected and that's why you end up getting to the issue of overt exertion because congress said we're not going to allow this drive time to be his or her service resolve and badges that that would be suffer well the issue is delivery transferring delivery so here you have modems you have the cable boxes they're actually taking it one place to install in your home my p that's delivery and no if we just looked at generally speaking was taking that and bringing it to somebody's house to place it in there would that be work yes it would be work it's delivering but i know i'm running out of time i wanted to add one thing one of the the issue also is judy ok when you're on the home start program and you finish your day you clock out at that point you don't get a decision about whether i'm going to commute home in my own truck i'm going to do your you have a truck and you have a duty and the duty is set forth in e r houston through eighty three dollars which is the home start and also in  pardon me e r for seven hundred the driver of a company vehicle is responsible for the following parking only in appropriate locations and parking spaces so at the end of the day when you're at that last customer you have a vehicle here not done you have the duty you have the responsibility and home starts responsibility says you have to park that thought that truck in the location specific and appropriate to the company which is at your home under this one under the home start program so you're not done that's that's your obligation your to responsibility and no one here can argue they don't have that responsibility because there