1

Filed 1/27/23 Wheeler v. Safeway CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

----

RICHARD WHEELER, et al.,

Plaintiff and Appellant,

v.

SAFEWAY, INC.,

Defendant and Respondent.

C095601

(Super. Ct. No. STK-CVUBT-2016-0000176)

This is a wage and hour class action lawsuit brought by truck drivers employed by 

defendant Safeway, Inc. (Safeway). Plaintiff Richard Wheeler and others filed suit in 

2016 following the settlement of two related wage and hour lawsuits in 2015. In this 

action, plaintiffs allege, among other things, that Safeway continued to provide its drivers

inadequate wage statements in violation of Labor Code section 226, subdivision (a).1 

1

 Undesignated statutory references are to the Labor Code.
2

After the trial court issued two in limine rulings limiting Safeway’s exposure to liability

on the wage statement claim, including a ruling regarding the scope of the release 

provision in the settlement agreement encompassing the two related cases, the parties 

settled the remaining claims. Plaintiffs timely appeal, challenging the trial court’s in 

limine rulings. We conclude the trial court erred and therefore reverse.

BACKGROUND

This case has a lengthy history involving the settlement of two related wage and 

hour lawsuits following years of litigation, which began in 2001 and includes two prior 

appeals. In view of the limited issues raised on appeal, we briefly summarize the

pertinent facts and proceedings, which are largely set forth in our prior opinions: 

Cicairos v. Summit Logistics, Inc. (2005) 133 Cal.App.4th 949, 955-956 (Cicairos) and

Bluford v. Safeway Inc. (2013) 216 Cal.App.4th 864, 866-867 (Bluford). Additional 

information is set forth as necessary post in the Discussion section.

Relevant Facts Prior to June 2015

Since 2003, Safeway has managed the operations of a distribution center in Tracy.

(Bluford, supra, 216 Cal.App.4th at p. 866.) The plaintiffs in this case, like the plaintiffs 

in Cicairos and Bluford, are truck drivers who worked out of that distribution center,

delivering goods to Safeway stores in Northern California and Nevada. (Id. at pp. 866-

867.) Prior to 2003, the distribution center was operated by a third party, Summit 

Logistics, Inc. (Summit), for Safeway’s benefit. (Id. at p. 867, fn. 1.)

The terms of the drivers’ employment were governed by successive collective 

bargaining agreements, which provided for meal periods and rest breaks and specified the 

manner in which wages were calculated. (Bluford, supra, 216 Cal.App.4th at p. 867.) 

Safeway utilized an activity-based compensation system to determine the drivers’ wages, 

which were calculated based on: (1) mileage rates applied according to the number of 

miles driven, the time of day the trips were taken, and the locations where the trips began 

and ended; (2) fixed rates for certain tasks (e.g., rates for the number of pallets delivered 
3

and picked up); (3) an hourly rate for a predetermined amount of minutes for certain tasks 

(e.g., paid for 10 minutes at an hourly rate for set-up time at each store); and (4) an 

hourly rate for delays (e.g., breakdowns, impassable highways, time spent at scales, or 

other causes beyond the driver’s control). (Id. at p. 867.) This compensation system is 

known as a piece-rate or incentive-based compensation system. (Id. at p. 871.) The only 

component of this system for which drivers are paid according to the “actual time” they 

spend on a task is delay time.

Drivers logged their mileage and activities for each trip manually on documents 

known as trip sheets. (Bluford, supra, 216 Cal.App.4th at p. 867.) They also logged their 

activities into an onboard computer system, which allowed Safeway to track their 

movement, including their stops. (Id. at pp. 867-868.) The drivers inputted codes into

the system to record specific reasons for delays. (Id. at p. 868.)

As for wage statements, Safeway provided its drivers with a “ ‘driver trip 

summary—report of earnings’ ” (ROE)2 and an “ ‘earnings statement’ ” with each 

paycheck. (Bluford, supra, 216 Cal.App.4th at p. 868.) The ROE listed each component 

of the driver’s pay and the quantity of each component for which they were being paid. 

(Ibid.) The components and quantities were paid based on the rates set in the collective 

bargaining agreements. (Ibid.) The earnings statement itemized the actual components, 

and it expressed them in an equivalent hourly pay. (Ibid.) The delay time, paid at the 

driver’s hourly rate, is also listed in the ROE.

The trip sheets were used to generate the drivers’ earning statements and ROEs. 

Neither the earnings statements nor the ROEs stated the rates at which drivers were 

compensated for their mileage. (Bluford, supra, 216 Cal.App.4th at p. 868.)

2

 ROEs are sometimes referred to as SREs or SROEs in the appellate record.
4

The documents setting forth the rates (hourly, mileage, and activity) used to 

calculate the drivers’ compensation were not included with the wage statements supplied 

to the drivers.

3

 Safeway instructed the drivers to compare their earning statement and 

ROE with their trip sheets to ensure that they were paid the correct amount, and to speak 

with the transportation manager or a payroll clerk if they believed their pay was incorrect.

Itemized Wage Statements

Section 226, subdivision (a) requires an employer to provide its employees with an 

accurate itemized wage statement containing nine specified items. Among the items that 

must be in a wage statement include gross wages earned, total hours worked by the 

employee, the number of piece-rate units earned, and any applicable piece rate if the 

employee is paid on a piece-rate basis, all applicable hourly rates in effect during the pay 

period and the corresponding number of hours worked at each hourly rate by the 

employee. (§ 226, subd. (a).)

An employer must provide a wage statement to its employees “semimonthly or at 

the time of each payment of wages” and furnish the statement “either as a detachable part 

of the check . . . paying the employee’s wages, or separately if wages are paid by 

personal check or cash.” (§ 226, subd. (a).) The wage statement must contain the 

information specified in the statute. (Soto v. Motel 6 Operating, L.P. (2016) 

4 Cal.App.5th 385, 390 (Soto).)4

3

 Copies of these documents were placed in the “dispatch room” and provided to the 

drivers’ union representative. Safeway advised drivers that the rates used to calculate 

their compensation could be obtained from the transportation manager, other managers, 

dispatchers, and the payroll office.

4

 Section 226, subdivision (a) states that an employer is not required to provide an 

accurate itemized statement showing total hours worked by the employee if any of the 

enumerated exceptions in subdivision (j) of the statute apply. (§ 226, subd. (a).) 

Safeway does not argue that any of these exceptions apply here.
5

“The core purpose of section 226 is ‘to ensure an employer “document[s] the basis 

of the employee compensation payments” to assist the employee in determining whether 

he or she has been compensated properly.’ ” (Ward v. United Airlines, Inc. (2020) 

9 Cal.5th 732, 752 (Ward); see Maldonado v. Epsilon Plastics, Inc. (2018) 

22 Cal.App.5th 1308, 1337 [“ ‘ “ ‘The purpose of requiring greater wage stub 

information is to insure that employees are adequately informed of compensation 

received and are not shortchanged by their employers’ ” ’ ”].) “Section 226 is part of a 

matrix of laws intended to ensure workers are correctly and adequately compensated for 

their work.” (Ward, at p. 752.)

An employee may obtain the greater of actual damages or statutory penalties if he

or she suffers injury as a result of a knowing and intentional failure by their employer to 

comply with section 226, subdivision (a). (§ 226, subd. (e)(1).) An employee is deemed 

to suffer injury if the employer fails to provide accurate and complete information as 

required by section 226, subdivision (a) and the employee cannot “promptly and easily 

determine from the wage statement alone” any of the enumerated items (e.g., piece-rate 

units earned, total hours worked). (Id., subd. (e)(2)(B)(i).) A knowing and intentional

violation occurs “if the employer ‘knew that facts existed that brought its actions or 

omissions within the provisions of [the statute]’ [citation] or, in other words, ‘was aware 

of the factual predicate underlying the violation.’ ” (Kao v. Holiday (2017) 

12 Cal.App.5th 947, 961.) “The employee is not required to demonstrate that the 

employer knew its conduct was unlawful.” (Furry v. East Bay Publishing, LLC

(2018) 30 Cal.App.5th 1072, 1085.)

“An actual injury is shown where ‘there is a need for both additional 

documentation and additional mathematical calculations in order to determine whether 

Plaintiffs were correctly paid and what they may be owed.’ [Citation.] In contrast, where 

the deficiency in the wage statement could be corrected by ‘simple math,’ there is no 
6

actual injury.” (Raines v. Coastal Pacific Food Distributors, Inc. (2018) 23 Cal.App.5th 

667, 676 (Raines).)

Related Cases

The plaintiffs in Cicairos and the plaintiff in Bluford brought suit against their 

former/current employer (Summit/Safeway), alleging violations of statutory and 

regulatory laws related to meal and rest periods and itemized wage statements. (See 

Cicairos, supra, 133 Cal.App.4th at p. 952; Bluford, supra, 216 Cal.App.4th at pp. 866, 

868.) Both Cicairos and Bluford involved the same wage and hour claims, which were

predicated on similar allegations of wrongdoing.

In 2005, we issued a published opinion in Cicairos reversing the trial court’s grant 

of summary judgment in favor of Summit. We concluded the evidence did not establish 

that Summit provided the plaintiffs with their required meal periods, paid rest periods, 

and adequately itemized wage statements. (Cicairos, supra, 133 Cal.App.4th at pp. 960-

963.) In 2003, when Safeway took over control of the distribution center, it continued to 

utilize the same compensation structure and policies we subsequently disapproved in 

Cicairos until after Cicairos was issued. (Bluford, supra, 216 Cal.App.4th at p. 867, fn. 

1.)

In May 2013, we reversed the trial court’s order denying plaintiff’s motion for 

class certification. (Bluford, supra, 216 Cal.App.4th at pp. 866, 874.) We concluded 

insufficient evidence supported the trial court’s determination that individual issues 

predominated over common issues on the plaintiff’s rest and meal period claims, and that 

plaintiff alleged a common injury resulting from the inadequate wage statements supplied 

by Safeway. (Id. at p. 866.) We reversed and remanded the matter with directions to

grant plaintiffs’ motion to certify the class, subdivided into three subclasses--rest, meal,

and itemized wage statement classes. (Id. at pp. 866, 874.)
7

The Cicairos/Bluford Settlement

In October 2013, Cicairos and Bluford were related and assigned to the same 

superior court judge.

5

 In December 2014, the parties agreed to settle all of the claims

alleged in both Cicairos and Bluford. In February 2015, the parties executed a written 

settlement agreement memorializing the terms of the settlement (Cicairos/Bluford

settlement or settlements). The trial court granted preliminary approval of the settlement

in March 2015.

In August 2015, the trial court granted final approval of the settlement. Under the

express terms of the settlement agreement, the judgment, which incorporated the 

settlement agreement, became final in October 2015.

June 2015 Changes to Safeway’s Employment Practices

Prior to June 2015, Safeway did not include rest breaks in the list of “delay

codes” for which extra pay was provided to drivers.

Beginning on June 14, 2015, Safeway implemented certain changes to its rest 

break practices and wage statements, which, as we noted ante, are comprised of two 

documents: an earning statement and a more detailed ROE providing more information 

associated with the particular work of the driver. Drivers were provided a revised ROE 

that included rest breaks as a separate entry, and a new “Journal Entries” section showing 

each driver’s total break minutes for the week and their rest break pay rate. The revised 

ROE also included entries for the following: (1) activity-based pay (the rate at which 

each element of the activity-based compensation system was paid per the collective 

bargaining agreement); (2) mileage-based pay (the miles driven during each leg of a trip 

that a separate mileage rate applied per the collective bargaining agreement, the amount 

paid for each leg, and the total amount of mileage pay for the week); and (3) total hours 

worked, exclusive of rest break minutes.

5

 The record reflects that the order relating the cases was not filed until January 2016.
8

According to Safeway, “[w]ith these revisions, both the rates and the number of 

piece-rate units earned for every sub-element of drivers’ pay (minutes, miles and 

activities) were itemized on drivers’ [ROE], whereas the rates had previously been 

provided to the drivers on related documents distributed to the drivers by . . . managers.”

January 2016 Changes to Safeway’s Employment Practices

In January 2016, Safeway implemented additional changes to its wage statements. 

Beginning on or about January 13, 2016, Safeway revised its “wage documents” to 

include subtotals listing the amount paid for each type of activity, and a footnote 

explaining the method of calculation for rest break pay. Around that same time, Safeway 

revised the ROE by adding an entry for total compensation and by including rest break 

time in the calculation of total hours worked.

6

Present Lawsuit

In January 2016, Wheeler and others7filed a wage and hour class action complaint

against Safeway, alleging violations of statutory and regulatory laws related to rest 

periods and itemized wage statements as well as a derivative claim under the unfair 

competition law. The allegations supporting these claims were similar to the allegations 

supporting the claims alleged in Cicairos and Bluford.

In this action, the rest period claim is limited to Safeway’s conduct from 

March 10, 2015, to June 13, 2015--the three-month period from the preliminary approval 

of the Cicairos/Bluford settlement to the day before Safeway implemented changes to its 

rest break practices. The wage statement claim is limited to Safeway’s conduct after the 

6

In July 2019, Safeway revised the ROE by adding an entry for the chain bonus, which 

was additional compensation paid to drivers for installing and removing chains from their

truck’s tires.

7

 Wheeler was one of the named plaintiffs in Cicairos. Another named plaintiff in this 

action, Kenneth Bluford, was the only named plaintiff in Bluford. All of the originally

named plaintiffs in this action were members of the Cicairos/Bluford settlement class.
9

preliminary approval of the settlement--March 10, 2015, to the present. According to 

plaintiffs, Safeway’s wage statements continued to be inadequate after the settlement was 

approved on March 9, 2015. Specifically, plaintiffs allege that the wage statements were

deficient because they failed to indicate the rate of pay associated with each task

performed (i.e., the piece-rates comprising the driver’s compensation), contain an 

accurate report of all hours worked, contain a separate component for rest breaks for the 

three-month period from March 10, 2015, to June 13, 2015, or otherwise comply with 

section 226. Plaintiffs asserted that, without this information, they and other drivers

could not easily verify the accuracy of the wages paid.

Motion for Class Certification

In December 2018, the trial court granted plaintiffs’ motion for class certification,

which, as relevant here, included certification of a subclass of “all current and former 

Safeway drivers not provided accurate itemized wage statements from March 10, 2015 to 

the present.” In certifying this subclass, the trial court found that all of the drivers were 

subject to Safeway’s common payroll system and its methods of compensating drivers 

(i.e., piece-rate compensation system), and were provided earning statements and ROEs 

“made up of identical elements,” raising issues of law and facts common to all proposed 

class members.

Motions for Summary Adjudication

In January 2019, the trial court denied Safeway’s motion for summary 

adjudication. Of relevance here, Safeway sought a determination that all members of the 

Cicairos/Bluford settlement class were barred from seeking recovery on any wage 

statement issued on or before the “effective date” of the settlement--that is, the date the 

judgment in Cicairos/Bluford, which incorporated the settlement agreement, became final 

on October 8, 2015. Safeway’s 30th affirmative defense asserted: “The Complaint, and 
10

each cause of action therein, is barred, in whole or in part, because Plaintiffs’ claims have 

been released pursuant to a prior settlement agreement with Defendant.”8

In support of its motion, Safeway argued that, under the unambiguous terms of the 

settlement agreement, the settling class members agreed to release all claims that were or

could have been brought against Safeway up to the effective date of the settlement. In 

denying the motion, the trial court found that the “clear language” of the settlement 

agreement indicated that the release was for “the class period only,” which was defined 

as January 1, 2000, to March 9, 2015--the date the Cicairos/Bluford settlement was 

preliminary approved.

In October 2020, the trial court granted summary adjudication in favor of Safeway 

on plaintiffs’ rest period claim. The court explained that, in December 2018, the Federal 

Motor Carrier Safety Administration determined that California’s meal and rest break 

rules were preempted under federal law and could not be applied to truck drivers.

In December 2020, the trial court denied plaintiffs’ motion for summary 

adjudication of the wage statement claim, which sought a determination that Safeway’s 

wage statements were deficient as a matter of law during the relevant period--March 10, 

2015, to the present. In support of their motion, plaintiffs raised several arguments we 

need not discuss because they are not pertinent to the issues on appeal, including 

arguments that concern the three-month period from March 10, 2015, to June 13, 2015. 

As relevant here, the trial court rejected plaintiffs’ contention that the wage statements 

issued on and after June 14, 2015 (i.e., after Safeway made changes to the statements 

following the Cicairos/Bluford settlement), were inadequate as a matter of law under 

section 226 because the mileage rates provided did not include the start time for each leg 

8

 As discussed more fully post, it is undisputed that the “effective date” of the 

Cicairos/Bluford settlement was October 8, 2015--60 days after the trial court granted 

final approval of the settlement agreement on August 8, 2015.
11

of a trip and indicate whether the rates applied were peak or non-peak rates, thereby 

preventing drivers from ascertaining whether the rates stated on their wage statements

were correct without cross-referencing another document.

9

 The court explained that, 

because there was nothing in the statute requiring that a wage statement include the basis 

of the piece-rate paid, plaintiffs had failed to establish a statutory violation due to the 

omission of an explanation indicating whether the rate paid was a peak or non-peak rate.

The trial court did not specifically rule on plaintiffs’ contention that the wage 

statements issued on or after June 14, 2015, were inadequate as a matter of law under 

section 226 because they contained two or more calculations of total hours, resulting in 

confusion and injury to drivers as the statements did not clearly and accurately provide 

drivers with the total hours worked. However, the court found the wage statements 

issued from March 10, 2015, to June 13, 2015, did not violate section 226 as a matter of 

law, even though it was undisputed that they did not include the total hours worked. 

Citing the Department of Labor Standards Enforcement (DLSE) Manual, the court 

determined that Safeway was not required to supply drivers with this information because

drivers were not compensated based on an hourly rate.

Safeway’s Motions in Limine

In mid-April 2021, in anticipation of trial in early May 2021, Safeway filed two 

motions in limine.

10

Relying on the terms of the Cicairos/Bluford settlement agreement, Safeway’s 

Motion in Limine No. 1 sought to prevent plaintiffs from presenting any evidence or 

argument regarding wage statements issued to members of the Cicairos/Bluford

settlement class on or before October 8, 2015--the date the judgment incorporating the 

9

 The peak rate premium applies when a driver’s trip starts at “certain times of day.”

10

 We refer, as the trial court did, to Safeway’s motions in limine as Motion in Limine 

No. 1 and Motion in Limine No. 2.
12

settlement agreement became final. In support of this motion, Safeway argued that 

evidence regarding these wage statements was irrelevant because the settling class 

members released all of their wage statement claims arising on or before October 8, 2015,

under the express terms of the Cicairos/Bluford settlement agreement.

Safeway’s Motion in Limine No. 2 sought to prevent plaintiffs from presenting 

any evidence or argument regarding wage statements issued on or after June 14, 2015. In 

support of this motion, Safeway argued that such evidence was irrelevant because the

wage statements issued during this time period did not violate section 226 as a matter of 

law, and that, in any event, plaintiffs could not establish injury as a matter of law. As for 

the alleged deficiencies in the wage statements, Safeway argued that contrary to 

plaintiffs’ contention, the ROEs issued on or after June 14, 2015, itemized all hours for 

which drivers were paid and included the total hours worked, even though this amount is 

irrelevant to their compensation. Safeway further argued that contrary to plaintiffs’ 

contention, section 226 does not require an employer to explain the basis for an 

employee’s pay rate, and therefore the ROEs did not need to specify whether a driver was

paid a peak or non-peak rate for miles driven. As for the injury element, Safeway argued

that plaintiffs could not establish this element as a matter of law because they “admitted 

in their depositions” that, beginning in June of 2015, their ROEs contained all the 

necessary information to determine what they were paid. In support of this argument, 

Safeway cited to the deposition testimony of four of the six named plaintiffs. Safeway 

added that plaintiffs’ “vague allegation” that the ROEs issued after the “June 2015 

revisions” were confusing and failed to reflect accurate information, cannot form the 

basis for a class-wide determination that Safeway’s wage statements were inadequate. 

Three days later, plaintiffs filed a written objection to Motion in Limine No. 2, arguing 

that it was an untimely and improper dispositive motion. The objection noted that 

Safeway had not complied with the procedural requirements of the summary judgment

statute and submitted over 500 pages of materials in support of its motion.
13

At the motion in limine conference the next day, plaintiffs lodged the same 

objection and asserted that they were entitled to a “full summary judgment briefing” on 

the issue raised in Motion in Limine No. 2. The trial court did not grant plaintiffs’ 

request, but instead ordered supplemental briefing and set a hearing 11 days later. The 

court indicated, without elaboration, that its tentative ruling was to grant both of 

Safeway’s motions.

After a hearing and the submission of additional briefing, in which plaintiffs 

argued that both of Safeway’s motions should be denied as procedurally improper and

because they lacked substantive merit, the trial court granted Safeway’s motions. These

rulings effectively limited relief on the wage statement claim to current class members 

who were not members of the Cicairos/Bluford settlement class and were employed by 

Safeway during the three-month period from March 10, 2015, to June 14, 2015.

In granting Safeway’s Motion in Limine No. 1, the trial court acknowledged that it 

was, in essence, reconsidering its prior ruling denying Safeway’s motion for summary 

adjudication on its 30th affirmative defense concerning the release provision in the 

Cicairos/Bluford settlement agreement. The court explained that it was bifurcating this 

issue and deciding it prior to trial because the issue presented a question of law. As for 

Motion in Limine No. 2, the trial court provided no explanation for its ruling.

Importantly, the court did not indicate whether it was granting the motion because there 

was no violation of section 226, subdivision (a) as a matter of law, and/or because 

plaintiffs could not, as a matter of law, establish the injury element of a wage statement 

claim under section 226, subdivision (e).

Remaining Claims and Judgment, Appeal

Following the trial court’s in limine rulings, the parties agreed to settle the

remaining claims. Thereafter, the matter was dismissed pursuant to stipulation. 

Judgment was entered in December 2021. Plaintiffs timely appealed. The case was fully 
14

briefed on September 13, 2022, and assigned to this panel on September 30, 2022. The 

parties requested argument and the cause was heard and submitted on January 17, 2023.

DISCUSSION

I

Disguised Dispositive Motions

We begin by addressing plaintiffs’ contention that the trial court erred in 

considering Safeway’s motions in limine. Plaintiffs argue the motions should have been 

denied as untimely filed dispositive motions disguised as motions in limine. As we next 

explain, we agree only as to Safeway’s Motion in Limine No. 2.

A. Applicable Legal Principles

“Motions in limine are designed to facilitate management of a case by deciding 

difficult evidentiary issues in advance of trial.” (McMillin Companies, LLC v. American

Safety Indemnity Co. (2015) 233 Cal.App.4th 518, 529.) “ ‘ “The usual purpose of 

motions in limine is to preclude the presentation of evidence deemed inadmissible and 

prejudicial by the moving party. A typical order in limine excludes the challenged 

evidence . . . . [Citation.] ‘The advantage of such motions is to avoid the obviously futile 

attempt to “unring the bell” in the event a motion to strike is granted in the proceedings 

before the jury.’ ” ’ ” (Amtower v. Photon Dynamics, Inc. (2008) 158 Cal.App.4th 1582, 

1593 (Amtower), italics omitted.)

Dispositive motions in limine are disfavored. Motions in limine are not designed 

to replace the dispositive motions prescribed by the Code of Civil Procedure, such as 

motions for summary adjudication, and when used in this fashion they may circumvent 

procedural protections provided by the statutory motions or by a trial on the merits; they 

risk blindsiding the nonmoving party and could infringe on the right to a jury trial. (Tung 

v. Chicago Title Company (2021) 63 Cal.App.5th 734, 758; Blanks v. Seyfarth Shaw, LLP

(2009) 171 Cal.App.4th 336, 375; Amtower, supra, 158 Cal.App.4th at pp. 1593-1594; 

see R & B Auto Center, Inc. v. Farmers Group, Inc. (2006) 140 Cal.App.4th 327, 350
15

(R & B) [discouraging use of motions in limine to achieve summary adjudication].) “No 

matter how logical a moving party’s motion may sound, a judge generally should not be 

weighing the evidence on a motion in limine. . . . While it may be tempting to look at a 

case in the macro sense, the devil is in the details. The moving party’s concerns that the 

other party may be trying to use evidence for an improper purpose or in a way that may 

be unduly prejudicial can be addressed by limiting instructions, without taking away the 

other party’s hallowed right to a jury trial.” (R & B, at p. 333.)

Although dispositive motions in limine are disfavored, they are not prohibited. 

Entertaining a “nontraditional” motion in limine falls within the trial court’s inherent 

power to control litigation and conserve judicial resources. (See Amtower, supra, 

158 Cal.App.4th at p. 1595 [“In spite of the obvious drawbacks to the use of in limine 

motions to dispose of a claim, trial courts do have the inherent power to use them in this 

way”]; Kinda v. Carpenter (2016) 247 Cal.App.4th 1268, 1285 (Kinda) [same].)

However, the better practice in nearly every case in which a motion in limine is brought 

as a substitute for a dispositive statutory motion is to afford the litigant the protections 

provided by trial or by the statutory processes. (Pellegrini v. Weiss (2008) 

165 Cal.App.4th 515, 530.) As an example, a motion in limine that seeks to exclude all 

evidence pertaining to all or part of a cause of action on the ground that the plaintiff lacks 

evidence to support all or part of the cause of action is merely a disguised motion for 

summary adjudication and should not be permitted. (Johnson v. Chiu (2011) 

199 Cal.App.4th 775, 778; Pantoja v. Anton (2011) 198 Cal.App.4th 87, 124.)

B. Analysis

First, as to Safeway’s Motion in Limine No. 1, we see no abuse of discretion. As 

the trial court noted, this motion effectively sought reconsideration of the court’s prior 

ruling denying Safeway’s motion for summary adjudication on its 30th affirmative 

defense, which concerned the scope of the release provision in the Cicairos/Bluford

settlement agreement. Although we also accept the premise that motions in limine should 
16

not replace dispositive motions prescribed by the Code of Civil Procedure (Amtower, 

supra, 158 Cal.App.4th at p. 1593), the issue raised in Motion in Limine No. 1 involved

the proper interpretation of the release provision in the settlement agreement. This was a 

question of law for the court to decide, as the language of the settlement agreement is 

unambiguous and there was no conflicting extrinsic evidence bearing upon its meaning. 

(City of Hope National Medical Center v. Genentech Inc. (2008) 43 Cal.4th 375, 395; 

Chacon v. Union Pacific Railroad (2020) 56 Cal.App.5th 565, 573.) Under these 

circumstances, the trial court acted well within its authority in ruling on the motion. 

There was no need for the procedural protections provided by trial or the statutory 

processes for dispositive motions. (See Salehi v. Surfside III Condominium Owners’ 

Assn. (2011) 200 Cal.App.4th 1146, 1159 [rejecting claim that the trial court improperly 

determined, in response to a motion in limine, whether release in settlement agreement 

barred current claims].)

However, as to Motion in Limine No. 2, we reach a different conclusion. That 

motion concerned the legal adequacy of the wage statements issued to drivers on or after 

June 14, 2015. In granting this motion, the trial court effectively granted summary 

adjudication in favor of Safeway on all wage statement claims predicated on wage 

statements issued on or after June 14, 2015, without the procedural protections associated 

with summary adjudication proceedings or by trial on the merits. This was an abuse of 

discretion. While the excluded evidence might not have been sufficient to establish 

liability, Safeway did not follow the proper procedure for adjudicating this portion of 

plaintiffs’ wage statement claim before trial. (See Code Civ. Proc., § 437c, subd. (t)

[explaining procedure for summary adjudication of legal issue or claim for damages that 

does not completely dispose of a cause of action].) Indeed, Safeway waited until the eve 

of trial, more than five years after this suit was filed, to file what was in effect a motion 

for partial summary adjudication. The motion was procedurally improper. (See R & B, 

supra, 140 Cal.App.4th at p. 371 [“[t]o have the sufficiency of the pleading or the 
17

existence of triable issues of material fact decided in the guise of a motion in limine is a 

perversion of the process”] (conc. opn. of Rylaarsdam, J.).) In any event, as we explain 

post, the procedural issue notwithstanding, the trial court erred in granting the motion.

II

Merits of Safeway’s Motions in Limine

Next, we turn to the merits of Safeway’s motions in limine. As we shall explain, 

we agree with plaintiffs that the trial court erred in granting the motions.

A. Standard of Review

While we generally review orders on motions in limine for abuse of discretion, our 

review is de novo when the issue is one of law. (Reynaud v. Technicolor Creative 

Services USA, Inc. (2020) 46 Cal.App.5th 1007, 1021; Children’s Hospital Central 

California v. Blue Cross of California (2014) 226 Cal.App.4th 1260, 1277.)

When a motion in limine is granted at the outset of trial with reference to evidence 

already produced in discovery, it “ ‘may be viewed as the functional equivalent of an 

order sustaining a demurrer to the evidence, or nonsuit.’ ” (K.C. Multimedia, Inc. v. Bank 

of America Technology & Operations, Inc. (2009) 171 Cal.App.4th 939, 952.) In ruling 

on the motion, the trial court must interpret the evidence most favorably to plaintiff’s 

case and resolve all presumptions, inferences and doubts in favor of plaintiff. (Kinda, 

supra, 247 Cal.App.4th at pp. 1285-1286.) “ ‘ “Because a grant of the motion serves to 

take a case from the jury’s consideration, courts traditionally have taken a very restrictive 

view of the circumstances under which nonsuit is proper. The rule is that a trial court 

may not grant a defendant’s motion for nonsuit if plaintiff’s evidence would support a 

jury verdict in plaintiff’s favor.” ’ ” (Id. at p. 1285.)

B. Safeway’s Motion in Limine No. 1

1. Applicable Legal Principles

A settlement agreement is a contract; therefore, the legal principles that apply to 

contracts also apply to settlement agreements. (Sully-Miller Contracting Co. v. 
18

Gledson/Cashman Construction, Inc. (2002) 103 Cal.App.4th 30, 36; General Motors 

Corp. v. Superior Court (1993) 12 Cal.App.4th 435, 439.) The proper interpretation of a 

contract is a judicial function when, as here, it does not turn upon the credibility of 

extrinsic evidence. (Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 866; 

Garcia v. Truck Ins. Exchange (1984) 36 Cal.3d 426, 439.)

“California recognizes the objective theory of contracts [citation], under which 

‘[i]t is the objective intent, as evidenced by the words of the contract, rather than the 

subjective intent of one of the parties, that controls interpretation’ [citation]. The parties’

undisclosed intent or understanding is irrelevant to contract interpretation.” (Founding 

Members of the Newport Beach Country Club v. Newport Beach Country Club, Inc.

(2003) 109 Cal.App.4th 944, 956.)

“ ‘ “The fundamental goal of contractual interpretation is to give effect to the 

mutual intention of the parties.” ’ ” (Powerine Oil Co., Inc. v. Superior Court (2005) 

37 Cal.4th 377, 390.) “ ‘In interpreting an unambiguous contractual provision[,] we are 

bound to give effect to the plain and ordinary meaning of the language used by the 

parties.’ [Citation.] Thus, where ‘ “contract language is clear and explicit and does not 

lead to absurd results, we ascertain intent from the written terms and go no further.” ’ ” 

(People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2003) 107 Cal.App.4th 516, 524; 

see Powerine, at p. 390 [“ ‘ “If contractual language is clear and explicit, it 

governs” ’ ”].) If possible, we must give effect to every provision and word of a contract 

and avoid an interpretation that renders a word or part of the contract surplusage, 

inoperative, or meaningless. (In re Tobacco Cases I (2010) 186 Cal.App.4th 42, 49; 

National City Police Officers’ Ass’n v. City of National City (2001) 87 Cal.App.4th 1274, 

1279; City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 

68 Cal.App.4th 445, 473.)
19

2. Analysis

The Cicairos/Bluford settlement agreement defined the “Settlement Class” to 

include “all persons who, from January 1, 2000, up to and including the date that the 

Superior Court grants preliminary approval of this Settlement, have previously been or 

currently are employed by Summit or Safeway as drivers at the distribution center located 

in Tracy, California.” The agreement defined the “Class Period” to mean “the period of 

time from January 1, 2000, to the date of the Preliminary Approval of the Settlement.” It 

is undisputed that the settlement was preliminarily approved on March 9, 2015, and that 

the “effective date” of the settlement agreement was October 8, 2015--the date the 

judgment, which incorporated the settlement agreement, became final.11

In relevant part, the general release provision in the Cicairos/Bluford settlement 

agreement states: “As of the date the Judgment becomes Final, Plaintiffs, the Class, and 

each Class Member who has not been excluded from the Settlement . . . shall and does

hereby fully and finally release Summit . . . and Safeway . . . from any and all claims, 

11

 The Cicairos/Bluford settlement agreement defined the “Effective Date” as the date 

by which the agreement is “approved by the Superior Court by entry of the Judgment and 

the Judgment becomes Final. The Judgment becomes ‘Final’ when the later of the 

following events occurs: (1) the period for filing any appeal, writ, or other appellate 

proceeding opposing the Settlement has elapsed without any appeal, writ, or other 

appellate proceeding having been filed; (2) any appeal, writ, or other appellate 

proceeding opposing the Settlement has been dismissed finally and conclusively with no 

right by any appellant or objector to pursue further remedies or relief; or (3) any appeal, 

writ, or other appellate proceeding has upheld the Judgment with no right by any 

appellant or objector to pursue further remedies or relief. In this regard, it is the intention 

of the Parties that the Settlement shall not become effective until the Court’s Judgment 

granting final approval of the Settlement is completely final, and there is no further 

recourse by an appellant or objector who seeks to contest the Settlement. The occurrence 

of the Effective Date is a prerequisite to any obligation of Defendants to pay any funds 

into the Settlement Account.” The trial court granted final approval of the settlement and

entered judgment on August 9, 2015. Therefore, since no appeal was filed, the parties 

agree that the judgment became final on October 8, 2015. (See Cal. Rules of Court, rule 

8.104(a).) 
20

demands, rights, liabilities, and causes of action of any kind whatsoever, whether known 

or unknown, that have been, or could have been, asserted against [Safeway and/or 

Summit] arising out of or relating to the claims, causes of action, facts, or allegations set 

forth in the Cicairos Action and the Bluford Action during the Class Period.” (First 

italics added.)

Reading the terms of the Cicairos/Bluford settlement agreement together as a 

whole, and giving effect to the plain and ordinary meaning of every provision and word, 

we conclude the general release provision does not encompass any of the claims asserted 

in this action, including the remaining wage statement claim and the derivative unfair 

competition law claim. The conduct on the part of Safeway giving rise to these claims

occurred on or after March 10, 2015. That is, after the date the trial court preliminarily 

approved the settlement agreement on March 9, 2015. The plain unambiguous language

of the settlement agreement provides that, upon the date the judgment, which

incorporated the settlement agreement, becomes final, the class members release Safeway 

and Summit from any and all claims, whether known or unknown, that have been or 

could have been asserted against Safeway and Summit “arising out of or relating to the 

claims, causes of action, facts, or allegations in the Cicairos Action and the Bluford

Action during the Class Period” (third italics added)--i.e., the period from January 1, 

2000, to March 9, 2015.

We disagree with the trial court’s interpretation of the settlement agreement, 

which Safeway urges us to adopt on appeal. As written, the release provision cannot

properly be interpreted to encompass all claims the class members asserted or could have 

asserted against Safeway up to the date the judgment incorporating the settlement 

agreement became final on October 8, 2015. Had the parties intended such a meaning, 
21

they could have easily said so in clear and certain terms.

12

 Instead, the parties agreed that 

the class members released all claims that were or could have been asserted against 

Summit and Safeway arising out of or relating to the claims or allegations in the Cicairos

and Bluford actions during the class period--i.e., from January 1, 2000, to March 9, 2015. 

Therefore, only wage and hour claims that were or could have been asserted against 

Summit and/or Safeway prior to March 9, 2015, were released by the class members. 

(Villacres v. ABM Industries Inc. (2010) 189 Cal.App.4th 562, 588 [a general release 

containing broad language such as the phrase “ ‘ “any and all claims that were or could 

have been asserted by [the plaintiff] in the [present lawsuit]” ’ ” have consistently been 

held by the courts to constitute a waiver of “ ‘all “claims based upon events occurring 

prior to the date of the release” ’ ”].) Accordingly, because the trial court reached a 

different conclusion, we must reverse the resulting ruling. The court’s interpretation does 

not give effect to the plain and ordinary meaning of the language used by the parties and 

renders the phrase “during the Class Period” meaningless. In our view, the clear intent of 

this phrase was to limit the temporal scope of the general release provision.

12

 In addition to the general release provision, the settlement agreement included a 

provision titled, “Additional Claims Released by the Plaintiffs.” In relevant part, that 

provision stated that the named plaintiffs agreed, as of the date the judgment became

final, to release Safeway and Summit from “all known and unknown claims they may 

have against [them], of every nature or description whatsoever [e.g., contract, tort, 

constitutional, wrongful discharge claims], up to the date of their execution of this 

Agreement,” which occurred in February 2015. (Italics added.) This provision taken 

together with the general release provision shows that the parties negotiated specific dates 

that apply to the release of claims. Had the parties intended for a broader release period 

for the class members, as Safeway contends, they could have specified that the general 

release applied to all wage and hour claims, and any derivative or related claims, that 

were or could have been asserted against Summit/Safeway from January 1, 2000, up to

the date the judgment incorporating the settlement agreement becomes final or up to the 

effective date of the settlement agreement.
22

Schulte v. Fifth Third Bank (N.D. Ill., June 15, 2012, No. 09 C 6655) 2012 WL 

2254197 (Schulte), on which Safeway primarily relies and which the trial court found

“compelling” and “very similar”, does not support a contrary conclusion. In Schulte, a 

case involving overdraft fees charged by a bank on debit card transactions, the class 

period ended on July 1, 2010, the settlement agreement required the bank to make a 

certain change to its business practices by April 1, 2011, and the settlement agreement

had an effective date of October 28, 2011. (Schulte, supra, 2012 WL 2254197 at pp. *1-

2.) The settlement agreement contained a broad release that stated: “As of the Effective 

Date, Plaintiff and each and every Settlement Class Member shall be deemed to have 

fully released and forever discharged Fifth Third [Bank] . . . from any and all rights, 

claims, actions, causes of action, demands and remedies, known or unknown, liquidated 

or unliquidated, legal, statutory, or equitable, that result from, arise out of, are based 

upon, or related to in any way to the conduct, omissions, duties or matters alleged in the 

Complaints, including claims related . . . in any way, upon the use of a Fifth Third [Bank]

Debit Card by the cardholder or by an authorized user of the debit card that led to the 

assessment of one or more Overdraft Fees.” (Id. at p. *1.) The district court in Schulte

granted the bank’s motion to enforce the settlement against a settling class member,

finding that the release provision barred all claims brought by a settling class member

that were based on debit card transactions before the effective date of the settlement 

agreement--October 28, 2011. (Id. at pp. *2-4.) The district court rejected the contention

that the release provision did not encompass claims arising after the class period--July 1, 

2010. (Id. at p. *2.) The district court relied on the broad language of the release 

provision, and added that settling class members knew or should have known that it was 

possible for overdraft fees to be assessed against them after the class period, as the

express terms of the settlement agreement gave the bank until April 2011 to make a 

certain change to its business practices regarding overdraft fees. (Id. at p. *3.)
23

Schulte is inapposite. Here, unlike in Schulte, the parties agreed to limit the 

release of claims by settling class members to those claims that were or could have been 

asserted against Summit and/or Safeway arising out of or related to the claims and 

allegations set forth in the Cicairos and Bluford actions during the class period. Further,

the terms of the settlement agreement do not include a provision requiring Safeway to 

make any change to its business practices related to wage statements by a certain date 

after the class period.13 Schulte is clearly distinguishable. And none of the other cases 

relied upon by Safeway involve a release provision containing similar language to that at 

issue here.

C. Safeway’s Motion in Limine No. 2

As we have discussed, Motion in Limine No. 2 sought to prevent plaintiffs from 

presenting any evidence or argument regarding wage statements issued on or after 

June 14, 2015. In support of this motion, Safeway argued that such evidence was 

irrelevant because the wage statements issued during this time period did not violate 

section 226, subdivision (a) as a matter of law, and that, in any event, plaintiffs could not 

establish injury as a matter of law under section 226, subdivision (e). Because this 

motion was, in effect, a motion for partial summary adjudication of the wage statement 

claim (see Code Civ. Proc., § 437c, subd. (t)), in granting the motion, the trial court 

deprived plaintiffs of the procedural protections associated with summary adjudication 

proceedings and the opportunity to put on their case as to wage statements issued on or 

after June 14, 2015, the date Safeway implemented certain changes to its wage 

statements.

13

 The record reflects that, in connection with the motion for preliminary approval, 

Safeway’s counsel represented that Safeway was in the process of designing a new wage 

statement that would comply with the requirements of section 226, and that Safeway 

would provide a declaration to that effect in support of the motion for final approval of 

the settlement.
24

This ruling, which was the “ ‘functional equivalent of an order sustaining a 

demurrer to the evidence, or nonsuit,’ ” (K.C. Multimedia, Inc. v. Bank of America

Technology & Operations, Inc., supra, 171 Cal.App.4th at p. 952), was an error. As we 

next explain, because there was evidence that would have supported a jury verdict in 

plaintiffs’ favor as to this portion of the wage statement claim; thus, this portion of the 

wage statement claim did not fail as a matter of law. (See Kinda, supra, 247 Cal.App.4th 

at p. 1285 [“The rule is that a trial court may not grant a defendant’s motion for nonsuit if 

plaintiff’s evidence would support a jury verdict in plaintiff’s favor”].)

Because the trial court did not provide any reasons for granting Safeway’s Motion 

in Limine No. 2, we will address each of the grounds raised by Safeway in support of its 

motion. As described ante, Safeway argued that the wage statement claim failed as a 

matter of law as to wage statements issued on or after June 14, 2015, for three reasons: 

(1) the wage statements itemized all hours worked and included the total hours worked,

and therefore did not violate section 226, subdivision (a); (2) section 226, subdivision (a)

does not require an employer to explain the basis for the applicable piece-rate(s) if the

employees is paid on a piece-rate basis, and therefore the ROE’s are not deficient for 

failing to specify whether a driver is paid peak or non-peak rate for miles driven; and 

(3) plaintiffs “admittingly” could not establish the injury element under section 226, 

subdivision (e).

1. Total Hours Worked

The sole relevant earning statement and ROE that Safeway submitted in support of 

its motion does not establish that the wage statements issued on and after June 14, 2015,

complied with section 226 as a matter of law. The ROE states that the driver worked a 

total of 54 hours and 17 minutes. However, it is unclear from the face of the document 

how that number was calculated. The ROE shows the time the driver was dispatched,

how many miles traveled, stops, delay minutes, and other categories. It does not, 
25

however, show how many hours the driver worked each day.

14

 The driver’s earning 

statement indicates, under the description “Prog/Trst Units Act Base,” that he worked 

69.05 hours. According to Safeway, this entry identifies the hours credited to the driver’s 

client trust account, which is a preset number negotiated under the collective bargaining 

agreement. The entry represents the total amount paid for all activity components of a 

driver’s compensation other than the mileage component.

Taken together, the face of the earning statement and ROE do not support the 

conclusion that Safeway provided drivers adequate wage statements as a matter of law. 

Safeway, for its part, has not cited any legal authority or provided meaningful legal 

analysis persuading us otherwise.

2. Basis for Applicable Piece-Rates

To the extent the trial court found, as argued by Safeway, that the wage statements

issued on or after June 14, 2015, were adequate despite the omission of an explanation as 

to the basis for the piece-rates that applied to each mile driven, this was in error. 

Plaintiffs’ theory of liability in this regard is that Safeway supplied inadequate wage 

statements by failing to provide sufficient information to enable drivers to verify whether 

the correct rate was applied to each piece-rate mile driven. According to plaintiffs, 

because the applicable piece-rate varies between zones based on the time of day a trip is 

taken, drivers are entitled to information as to which piece-rate applied, including 

information specifying whether the trip occurred during a “peak” period, which would 

trigger a higher rate of pay. Plaintiffs assert that without this information, there is no way 

to ensure the accuracy of the piece-rate applied unless they cross-reference other 

14

 In Cicairos, we concluded Summit failed to provide wage statements that met the 

requirements of section 226 because the ROEs did not show how many hours the driver 

worked each day or during the pay period. (Cicairos, supra, 133 Cal.App.4th at pp. 960-

961.)
26

documents. In support of its in limine motion, Safeway argued, and the trial court 

apparently agreed, that section 226, subdivision (a) does not require an employer to 

explain the basis for how each piece-rate was determined. Rather, it only requires that 

wage statements include the applicable piece-rate and the number of piece-rate units

earned. We disagree with this construction of the statute.

“We independently determine the meaning of a statute.” (Soto, supra,

4 Cal.App.5th at p. 390.) “When construing a statute, a court’s goal is ‘to ascertain the 

intent of the enacting legislative body so that we may adopt the construction that best 

effectuates the purpose of the law.’ ” (Gattuso v. Harte-Hanks Shoppers, Inc. (2007) 

42 Cal.4th 554, 567.) “ ‘[A] court’s “overriding purpose” in construing a statute is “to 

give the statute a reasonable construction conforming to [the Legislature’s] intent 

[citation]. . . .” ’ [Citations.] ‘The court will apply common sense to the language at 

hand and interpret the statute to make it workable and reasonable.’ ” (Ibid.)

“In construing a statute, we consider ‘the object to be achieved and the evil to be 

prevented by the legislation.” [Citations.] Section 226(a) is intended to require 

employers to provide an adequate wage statement, itemizing the information to be 

included, ‘to assist the employee in determining whether he or she has been compensated 

properly.’ ” (Raines, supra, 23 Cal.App.5th at p. 675; “Section 226 ‘play[s] an 

important role in vindicating [the] fundamental public policy’ favoring ‘ “ ‘full and 

prompt payment of an employee’s earned wages. . . .’ ” ’ ” (Soto, supra, 4 Cal.App.5th at 

p. 390.) “As a remedial statute, section 226 ‘must be liberally construed in favor of 

affording workers protection.’ ” (Gunther v. Alaska Airlines, Inc. (2021) 72 Cal.App.5th 

334, 346; see Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1103 

[“statutes governing conditions of employment are to be construed broadly in favor of 

protecting employees”].)

As previously indicated, an employee is deemed to suffer injury if the employer 

fails to provide accurate and complete information as required by section 226, 
27

subdivision (a) and the employee cannot promptly and easily determine from the wage 

statement alone any of the enumerated items (e.g., piece-rate units earned). (§ 226, subd. 

(e)(2)(B)(i); see id., subd. (e)(2)(C) [“ ‘promptly and easily determine’ means a 

reasonable person would be able to readily ascertain the information without reference to 

other documents or information”].) “An actual injury is shown where ‘there is a need for 

both additional documentation and additional mathematical calculations in order to 

determine whether Plaintiffs were correctly paid and what they may be owed.’ ” (Raines, 

supra, 23 Cal.App.5th at p. 676.)

We conclude that when, as here, an employee is subject to a piece-rate

compensation system, the employer must provide the employee a wage statement that

clearly explains how their compensation was calculated, including the applicable piecerate formula for each specific task performed and any other information necessary to 

calculate the employee’s compensation for that task. Without such information, the core 

purpose of section 226--to assist an employee in determining whether he or she has been 

properly compensated--would not be served. We fail to see how an employee subject to a 

piece-rate compensation system could promptly and easily determine whether they were 

correctly paid when the piece-rate for a particular task varies depending on certain 

factors, and there is no explanation or adequate information in the wage statement

showing why a particular piece-rate was applied for that task. Indeed, the ROE submitted 

by Safeway for the trial court’s consideration shows that four different piece-rates applied 

to a trip involving four stops on a single day. But there is no way for the driver to verify 

the accuracy of this information without referencing another document or set of 

documents. And there is no indication as to whether peak or non-peak rates applied to 

any leg of that trip and an explanation why. Only the start time of the trip is provided, 

and there is no indication of when the first leg of the trip ended or when any of the other 

legs of the trip began and ended.
28

3. Injury Element

Finally, to the extent the trial court found that plaintiffs could not establish the 

injury element as a matter of law, this was an error. Nothing in the record supports such 

a conclusion. In the trial court, Safeway argued that plaintiffs could not identify any 

“injury” caused by wage statements issued on or after June 14, 2015. But they did. The 

asserted injury was Safeway’s failure to provide accurate and complete information 

required under section 226, subdivision (a), including sufficient information regarding

total hours worked and applicable piece-rates. And, as we have discussed, there was 

evidence to support a finding in favor of plaintiffs on this issue at trial. It is not readily

apparent from the face of the wage statement it contained adequate information to enable

the driver to promptly and easily determine the accuracy of total hours worked or piecerate units earned. (See § 226, subd. (e)(2)(B)(i).) In short, the injury element of the wage 

statement claim was a question of fact for the jury to decide based on the wage statement 

alone. (See Garnett v. ADT, LLC (E.D. Cal. 2015) 139 F.Supp.3d 1121, 1132-1133 

[injury requirement satisfied where employee could not “readily ascertain” her total hours 

worked from information provided on her wage statement].)

We find no merit in Safeway’s contention that the trial court did not err because 

plaintiffs admitted they could not establish the injury element. Safeway has not directed 

us to any such admissions in the appellate record. And Safeway cites no authority in

support of its suggestion that the plaintiffs were required to submit declarations (or other 

evidence) outlining their inability to understand their wage statements in order to avoid 

an adverse ruling on the in limine motion. Further, Safeway misapprehends the law by 

claiming the trial court correctly held that section 226 was not violated because drivers 

could conduct a “comparison” of their ROEs with their trip sheets. As for Safeway’s 

liability on the wage statement claim, the question is whether Safeway failed to provide 

accurate and complete information as required by section 226, subdivision (a) and the 

drivers could not promptly and easily determine from the wage statement alone any of the 
29

enumerated items (e.g., piece-rate units earned). (§ 226, subd. (e)(2)(B)(i); see id., subd. 

(e)(2)(C) [“ ‘promptly and easily determine’ to mean ‘a reasonable person would be able 

to readily ascertain the information without reference to other documents or 

information’ ”]; Raines, supra, 23 Cal.App.5th at p. 676, italics added [a plaintiff is 

“injured” for purposes of section 226, subdivision (e) if the accuracy of any of the 

enumerated items in section 226, subdivision (a) cannot be ascertained from the four 

corners of the wage statement]; Lubin v. The Wackenhut Corp. (2016) 5 Cal.App.5th 926, 

959 [“section 226, subdivision (e)(2)(B)(i) clarifies that injury arises from defects in the 

wage statement, rather than from a showing that an individual experienced harm as a 

result of the defect”].)

Equally without merit is Safeway’s contention that the trial court did not err

because plaintiffs presented no proof of a knowing and intentional violation of section 

226. As an initial matter, Safeway forfeited this issue by failing to raise it in connection 

with its motion in limine. We do not consider arguments raised for the first time on 

appeal. (Franz v. Board of Medical Quality Assurance (1982) 31 Cal.3d 124, 143; 

Westcon Construction Corp. v. County of Sacramento (2007) 152 Cal.App.4th 183, 194.) 

In any event, Safeway has made no showing that plaintiffs were required to offer 

evidence on this issue to avoid an adverse ruling on the in limine motion. The issue of 

whether there was a knowing and intentional failure by Safeway to comply with section 

226, subdivision (a) is a question of fact for the jury. (See Kao v. Holiday, supra,

12 Cal.App.5th at p. 961 [a knowing and intentional violation occurs “if the employer 

‘knew that facts existed that brought its actions or omissions within the provisions of [the 

statute]’ [citation] or, in other words, ‘was aware of the factual predicate underlying the 

violation’ ”].)15

15 In view of our conclusions, we need not and do not consider any of the other 

arguments raised by the parties.
30

DISPOSITION

The order granting Safeway’s motions in limine is reversed. The judgment is 

reversed, and the matter is remanded for further proceedings consistent with this opinion. 

Plaintiffs shall recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a).)

 /s/

Duarte, Acting P. J.

We concur:

 /s/

Krause, J.

 /s/

Earl, J.