Filed 10/6/23 Domingo v. Prime Healthcare Paradise Valley CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication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. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

ARIEL DOMINGO,

Plaintiff and Appellant,

v.

PRIME HEALTHCARE PARADISE 

VALLEY, LLC,

Defendant and Respondent.

 D079848

 

(Super. Ct. No. 37-2019-23576-CUOE-CTL)

 

APPEAL from a judgment of the Superior Court of San Diego County, 

Timothy Taylor, Judge. Affirmed in part, and reversed in part.

Sullivan & Yaeckel Law Group, APC, William B. Sullivan, Eric K. 

Yaeckel and Ryan T. Kuhn, for Plaintiff and Appellant.

Seyfarth Shaw LLP, Geoffrey C. Westbrook and Phillip J. Ebsworth, 

Justin T. Curley and Kiran Aftab Seldon, for Defendant and Respondent.

INTRODUCTION

Appellant Ariel Domingo filed a representative action under the 

Private Attorney General Act (PAGA) (Lab. Code,1 § 2698 et seq.) against his 

1 Further statutory references are to the Labor Code unless noted. Rule 

references are to the California Rules of Court. 
2

former employer, Prime Healthcare Paradise Valley, LLC (Prime). He 

alleged Prime violated the Labor Code and/or applicable Industrial Welfare 

Commission (IWC) wage order with respect to meal and rest periods, expense 

reimbursement, compensation (on various grounds), wage statements, and 

final wages. During discovery, a referee appointed by the trial court 

recommended denial of Domingo’s motion to compel time and wage records

for all nonexempt employees on timeliness and other grounds. The trial court 

adopted the recommendation. The case proceeded to a bench trial, and the 

court granted Prime’s motion for judgment in a detailed statement of 

decision. The court entered judgment for Prime. 

Domingo appeals, contending the trial court erred by denying his 

motion to compel discovery and entering judgment for Prime on each claimed 

violation. We conclude Domingo does not demonstrate prejudicial error from 

the discovery ruling. As for the claimed violations, we determine Domingo 

establishes reversible error as to Prime’s rounding policy based on the record 

before us, and reverse the judgment to the extent it rests on that policy. We 

further determine Domingo demonstrates no other lack of substantial 

evidence or legal error, and affirm the remainder of the judgment. 

FACTUAL AND PROCEDURAL BACKGROUND

A. Parties and Underlying Events

Prime operates Paradise Valley Hospital (the Hospital). During the 

relevant time period (March 2018 through May 2021), 1,951 nonexempt 

employees worked for Prime. The employee handbook described Hospital

policies on meal and rest periods, timekeeping, and other matters.2 Prime 

2 Four substantially similar versions of the handbook were in effect 

during the relevant time period. 
3

used a “JBDev timekeeping system,” through which employees clocked in and 

out for shifts and meal periods, and reviewed an end-of shift attestation 

(described post).

Domingo worked at the Hospital as a cook from 2003 until January 

2019, when his employment was terminated. 

Cynthia Quinonez was his supervisor, and her employment also was

terminated in January 2019. She was the Food Services Manager serving as 

Executive Chef, and managed the kitchen team to “produc[e] all the meals for 

the hospital patients, café, and catering.” There were about 40 people in the 

department, and she supervised everyone besides the dieticians. This 

included Norman Granger, a food services worker. 

B. Litigation and Discovery

In February 2019, Domingo sent a notice of wage and hour violations to 

Prime and the California Labor and Workforce Development Agency (LWDA). 

He filed his PAGA action a few months later, and sent an amended LWDA 

notice in October 2019. In his operative second amended complaint, filed in 

February 2020, Domingo asserted six violations: meal and rest period, 

minimum wage, overtime, wage statement, failure to reimburse, and failure 

to pay wages upon separation. 

The case proceeded to discovery, and the trial court appointed a referee.

The referee recommended denial of Domingo’s motion to compel production of 

all nonexempt employee time records and wage statements on grounds 

including timeliness, which the court adopted. In briefing before the referee, 

Domingo had indicated that if Prime supplied certain information, he did not 

need all of the records. Prime subsequently provided similar information in 

response to special interrogatories. 
4

In February 2021, both parties moved for summary judgment and/or 

adjudication. In June 2021, the trial court denied Domingo’s motion, and 

most of Prime’s motion. 

C. Trial, Motion for Judgment, and Statement of Decision

The case proceeded to a three-day bench trial in August 2021. Domingo 

called six witnesses: himself; Quinonez; Granger; Filifili Amiatu, Prime’s 

Corporate Payroll Director; Durand Hartin, Prime’s Regional Security 

Manager; and his expert, Bennett Berger. Amiatu “support[ed] the payroll 

staff” with “payroll processing and pay practices.” Hartin managed security 

employees, which included enforcing rules. Berger’s consulting firm 

“conduct[ed] expert analysis” for employment class actions. Domingo also 

entered a number of exhibits into evidence, including the employee handbook, 

a JBDev document describing Prime’s rounding and grace period policy, and 

time records and wage statements for Domingo and Granger.

After Domingo rested, Prime moved for judgment under Code of Civil 

Procedure section 631.8, which Domingo opposed. The trial court issued a 

tentative ruling, granting Prime’s motion. Domingo filed a request for 

statement of decision, and identified 15 purportedly omitted “principal 

controverted issues.” The court’s proposed statement of decision stated the

requests were “essentially . . . special interrogatories” it did not have to 

address, but it still added responses to certain concerns. Domingo filed 

objections, contending the court failed to resolve his stated issues. The court 

overruled the objections, and adopted the proposed statement as its 

Statement of Decision. 

In the Statement of Decision, the trial court first described the 

procedural history and applicable law. The court then discussed the evidence 

in detail, and made credibility findings. The court found Amiatu was “very 
5

credible”; Hartin was “solid, candid and credible”; and Quinonez was “very 

thorough and credible despite the fact she arguably had an axe to grind 

against defendant for having terminated her involuntarily.” The court also 

commented on specific testimony, including, for example, finding Amiatu and 

Quinonez more credible on meal and rest break practices than Domingo and 

Granger.

The trial court then set forth its rulings (described further post): (i) 

Prime’s meal period timekeeping system (which did not permit clocking back

in early) was lawful, as it provided ways to record short meals and was 

intended to promote compliant meal periods; (ii) Domingo did not otherwise 

prove meal period or rest break violations; (iii) he did not establish unpaid 

reimbursement or compensation based on out-of-work communications; (iv) 

Prime’s rounding and grace period policy was neutral, facially and in 

practice; (v) Prime properly calculated the regular rate, including as to shift 

differentials; (vi) time spent complying with rules for free parking and badge 

access was not compensable; (vii) listing “hours worked” as a decimal in wage 

statements was permissible; and (viii) Domingo did not prove Prime failed to 

timely pay his final wages. The court also found he did not establish the 

claims were representative. 

The trial court entered judgment for Prime, and Domingo appealed. 

We requested and received supplemental briefing on issues relating to 

Prime’s rounding policy. 

DISCUSSION

Domingo contends the trial court erred by denying his motion to compel

discovery. He also challenges the court’s determinations as to each alleged 

violation. We conclude he establishes reversible error only as to Prime’s 

rounding policy.
6

A. Overview of Applicable Law

1. California Wage and Hour Law and PAGA

In California, “wage and hour claims are today governed by two 

complementary and occasionally overlapping sources of authority: the 

provisions of the Labor Code, enacted by the Legislature, and a series of 18 

wage orders, adopted by the IWC.” (Donohue v. AMN Services, LLC (2021) 11 

Cal.5th 58, 61 (Donohue).) Wage Order 5 “applies to persons employed in the 

public housekeeping industry,” which includes hospitals. (Mendiola v. CPS 

Security Solutions, Inc. (2015) 60 Cal.4th 833, 839, fn. 8 (Mendiola); Cal. 

Code Regs., tit. 8, § 11050, subds. 1, 2(P)(4).)3

PAGA “authorizes an employee to bring an action for civil penalties on 

behalf of the state against his or her employer for Labor Code violations 

committed against the employee and fellow employees, with most of the 

proceeds of that litigation going to the state.” (Iskanian v. CLS Transp. Los 

Angeles, LLC (2014) 59 Cal.4th 348, 360, abrogated on another ground by 

Viking River Cruises, Inc. v. Moriana (2022) ___ U.S. ___, 142 S.Ct. 1906, 

1924.) Before filing suit, the employee “must provide notice to the employer 

and the [LWDA] ‘of the specific provisions of [the Labor Code] alleged to have 

been violated, including the facts and theories to support the alleged 

3 The parties agree Wage Order 5 applies here, but disagree as to its 

application to certain claims. Specifically, Prime contends Wage Order 5 

applies the FLSA definition for “hours worked” to the health care industry, 

and precludes liability based on out-of-work communications, rounding, and 

parking/badge access. Domingo disagrees. Because we affirm on 

communications and parking/badge access, we need not and do not address 

Wage Order 5 in those contexts. We also need not resolve the issue in the 

rounding context, as we discuss post.
7

violation.’ ” (Williams v. Superior Court (2017) 3 Cal.5th 531, 545 

(Williams).) 

2. Code of Civil Procedure Section 631.8

Under Code of Civil Procedure section 631.8, “[a]fter a party has 

completed his presentation of evidence in a trial by the court, the other

party . . . may move for a judgment.” (Id. at subd. (a).) 

The purpose of this section “ ‘ “is ‘to enable the court, when it finds at 

the completion of plaintiff’s case that the evidence does not justify requiring 

the defense to produce evidence, to weigh evidence and make findings of fact.’ 

[Citation.] Under the statute, a court acting as trier of fact may enter 

judgment in favor of the defendant if the court concludes that the plaintiff 

failed to sustain its burden of proof. [Citation.] In making the ruling, the 

trial court assesses witness credibility and resolves conflicts in the

evidence.” ’ [Citation.] ‘ “Because the trial court evaluates the evidence as a 

trier of fact, it may refuse to believe some witnesses while crediting the 

testimony of others.” ’ ” (Orange County Water Dist. v. MAG Aerospace 

Industries, Inc. (2017) 12 Cal.App.5th 229, 239 (MAG Aerospace).)

3. Standard of Review

The standard of review for a judgment under Code of Civil Procedure 

section 631.8 is “ ‘ “the same as if the court had rendered judgment after a 

completed trial—that is, in reviewing the questions of fact decided by the 

trial court, the substantial evidence rule applies.” ’ ” (MAG Aerospace, supra, 

12 Cal.App.5th at p. 239.) “ ‘ “We review legal issues . . . under a de novo or 

independent standard.” ’ ” (Id. at pp. 239–240.) 

In applying substantial evidence review, the “power of the reviewing 

court begins and ends with the determination as to whether, on the whole 

record, there is substantial evidence, contradicted or uncontradicted, that will 
8

support the trial court’s determination.” (San Diego Metro. Transit Dev. Bd. 

v. Handlery Hotel, Inc. (1999) 73 Cal.App.4th 517, 528 (SD Metro); ibid. 

[appellate court “views the evidence in the light most favorable to the 

respondents [citation], resolves all evidentiary conflicts in favor of the 

prevailing party and indulges all reasonable inferences possible to uphold the 

trial court’s findings”]; see Ford v. Miller Meat Co. (1994) 28 Cal.App.4th 

1196, 1200 (Ford) [we “do not reweigh the evidence or reassess issues of 

credibility”].) 

We also “must infer, following a bench trial, that the trial court 

impliedly made every factual finding necessary to support its decision,” 

unless a party timely files objections identifying omissions or ambiguities. 

(Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 48.) We 

review “implied factual findings under the substantial evidence standard.” 

(Id. at pp. 59–60.) 

Domingo contends we should apply de novo review because the trial 

court stated there were “unresolved issues of law” (citing a comment at the 

motion in limine hearing), and “[m]ost of the facts . . . were undisputed.” We 

disagree. To the extent this appeal presents issues of law, we do review them 

de novo. (MAG Aerospace, supra, 12 Cal.App.5th at pp. 239–240.) But 

Domingo’s assertion that most facts were undisputed appears to rest on his 

substantially one-sided description of the record in his opening brief. The 

record reflects multiple factual disputes, and the parties disagree on the 

inferences to be drawn from it. (See Bower v. Inter-Con Security Systems, 
9

Inc. (2014) 232 Cal.App.4th 1035, 1043 [“Independent review is appropriate 

only when the facts permit just one reasonable inference.”].)4

4. Appellate Briefing Requirements

An appellant’s opening brief must “fairly set forth all the significant 

facts, not just those beneficial to the appellant.” (In re S.C. (2006) 138 

Cal.App.4th 396, 402; see rule 8.204(a)(2)(C) [brief must “[p]rovide a 

summary of the significant facts”].) An appellant who challenges the 

sufficiency of the evidence has to “ ‘set forth in their brief all the material 

evidence on the point and not merely their own evidence,’ ” or the “ ‘error . . .

is deemed to be waived.’ ” (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 

875, 881 (Foreman).)

An appellant also must raise all points in the opening brief, or seek 

leave for supplemental briefing. (Raceway Ford Cases (2016) 2 Cal.5th 161, 

178 (Raceway) [“We generally do not consider arguments raised for the first 

time in a reply brief.”]; Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764–

766 [refusing to consider new issues on reply; counsel could have “sought 

permission to file a supplemental opening brief”]; Rincon EV Realty LLC v. 

CP III Rincon Towers, Inc. (2019) 43 Cal.App.5th 988, 1002 (Rincon) [“If 

plaintiffs wished to add an argument based on [a case decided after their 

4 Domingo also argued in his opening brief that “on appeal from a 

defense motion for judgment, the truth of plaintiff’s evidence must be 

assumed,” citing Franco W. Oil Co. v. Fariss (1968) 259 Cal.App.2d 325, 328–

329. Franco was distinguishing a motion for nonsuit in a jury trial. On 

reply, he then cited Greening v. General Air-Conditioning Corp. (1965) 233 

Cal.App.2d 545, 555 to argue that, in review of a motion for judgment, 

evidence can be discounted but “not . . . ignore[d].” That part of Greening

addressed how to apply a res ipsa loquitur inference to a negligence claim in 

the motion for judgment context, and is inapposite. (Cf. ibid. [affirming 

judgment on breach of contract and warranty claims].) 
10

opening brief], they should have sought leave to file a supplemental opening 

brief . . . , rather than saving the issue for reply”].) 

Finally, briefing must be supported by reasoned argument, authority, 

and accurate citation to the record. (Badie v. Bank of America (1998) 67 

Cal.App.4th 779, 784–785 (Badie) [“When an appellant fails to raise a point, 

or asserts it but fails to support it with reasoned argument and citations to 

authority, we treat the point as waived.”]; WFG National Title Ins. Co. v. 

Wells Fargo Bank, N.A. (2020) 51 Cal.App.5th 881, 894 [“[W]e may decide 

that the appellant has forfeited a point urged on appeal when it is not 

supported by accurate citations to the record.”].)

Here, Domingo’s opening brief contains a largely one-sided description

of the record, as noted, and his reply brief has multiple new arguments. Both 

parties filed new authority letters containing argument, prior to our request 

for supplemental briefing, which was improper as well. (Rule 8.254(b) [“No 

argument or other discussion of the authority is permitted in the letter.”].) 

Domingo’s reply brief has two further issues. He contends Prime concedes 

certain points by not addressing them. But a “respondent’s failure to address 

an issue raised in the opening brief” (much less in a new authority letter) is 

“not a concession.” (Golden Door Properties, LLC v. County of San Diego

(2020) 50 Cal.App.5th 467, 557, fn. 48.) He also cites an unreported decision. 

(People v. Gray (2014) 229 Cal.App.4th 285, 292, fn. 15 [“It is improper to cite 

or rely upon unpublished opinions.”]; rule 8.1115(a).)

With these considerations in mind, we turn to Domingo’s arguments. 

B. Domingo Does Not Establish Prejudicial Error As To Discovery

Domingo argues the trial court erred by adopting the referee’s 

recommended denial of his motion to compel time and wage records. He does

not establish any prejudicial abuse of discretion.
11

1. Additional Facts

In May 2019, Domingo served document requests, including for time 

records and wage statements for all non-exempt employees. Prime objected. 

After initial deposition notices, Domingo served a second amended “Personal 

Most Knowledgeable” (PMK) notice, with document requests that included 

time and wage records. Prime again objected. Domingo served subsequent

amended PMK deposition notices, without document requests. 

In December 2019, Domingo sought ex parte relief to compel a BelaireWest notice.5 In its minute order, the trial court “set[] a Motion to Compel re 

Belaire-West” to be heard in January 2020. The next day, Domingo filed a 

“Motion To Compel Attendance Of [Prime’s PMK] And Document Production; 

Motion To Compel Bel-Aire West Notice.” Prime opposed, and Domingo filed 

a reply. The court declined to rule on the motion, and appointed Judge 

Herbert Hoffman (retired) as discovery referee. 

The referee held multiple conferences during the spring of 2020. The 

Belaire-West process was completed by February 2021. Prime represents, 

and Domingo does not dispute, that Domingo received contact information for 

1,504 employees. 

In April 2021, the referee entered his fifth report and recommendation, 

the one at issue here. He stated, “[Domingo] filed a motion to compel 

requesting that [Prime] be compelled to produce six categories of documents 

as well as . . . the depositions of two non-party witnesses. [Prime] opposed 

5 “In wage and hour class actions, a Belaire-West notice is sent to 

putative class members to inform them that their contact information will be 

disclosed unless they timely object to such disclosure in writing.” (Garcia v. 

Haralambos Beverage Co. (2021) 59 Cal.App.5th 534, 539, fn. 3, citing 

Belaire-West Landscape, Inc. v. Superior Court (2007) 149 Cal.App.4th 554.)
12

this motion. In [his] reply brief, [Domingo] changed [his] request to demand 

four categories of verified statements of information . . . .” The referee does 

not include filing dates, but appears to mean a later-filed motion to compel, 

not the one from December 2019. The record does not contain a later motion 

to compel, but does have an April 2021 reply brief matching the referee’s 

description.6 There, Domingo indicated that if Prime provided certain 

information, he “would agree that he does not require all of the Time Records 

and Wage Statements at issue” (while maintaining he remained entitled to 

the records).7

The referee then recommended denial of the motion, stating Domingo 

did not move within the statutory deadline and did not address timeliness in 

his motion or reply brief. He indicated that even if the motion were timely, 

he would deny it, because Domingo did not make a prima facie showing of 

violations and there were inadequate meet and confer efforts. He also stated, 

6 The record also has emails discussing a briefing schedule in February 

and March 2021. Prime represents Domingo filed the later motion to compel 

on March 29, 2021. 

7 He requested: “1. Regular Rate / Overtime Issue [¶] a. . . . number 

of Pay Periods in which Prime employees (1) received a ‘shift differential’

and (2) worked Overtime . . . ; [¶] b. . . . number of Pay Periods in which 

Prime employees worked . . . for a time period of 7 hours and 48 minutes 

or longer. . .; [¶] c. . . . number of Pay Periods in which Prime employees 

worked . . . for a time period of 8 hours or longer”; “2. Meal Period Issue

[¶] a. . . . number of Pay Periods in which Prime employees experienced at 

least one Meal Period . . . ; [¶] b. . . . number of Pay Periods in which Prime 

employees were subject to the Meal Period ‘Lockout System’ ”; “3. Rest Period 

Issues [¶] . . . number of Pay Periods in which Prime employees experienced 

at least one Rest Period; and “4. Wage Statement Issues [¶] the. . . . exact 

number of Pay Periods in which Prime employees received an Itemized Wage 

Statement . . . .” (Some emphasis omitted.)
13

“Based upon all of the briefing, it is unclear what [Domingo] was actually 

asking for.”

Domingo objected to the recommendation. In a declaration filed with 

its response, Prime’s counsel noted they previously proposed he “could obtain 

the information he seeks via interrogatories . . . .” 

In May 2021, the trial court adopted the referee’s recommendation. It

noted Domingo remained “free to propound the interrogatories suggested

in . . . [Prime’s counsel’s] most recent declaration.” 

Domingo propounded special interrogatories for similar information as 

identified in his April 2021 reply brief. In June 2021, Prime served 

responses. It indicated that during the relevant time, there were “14,270 pay 

periods” in which employees “received a shift differential and overtime”; 

“66,683 pay periods in which [they] worked at least 7 hours and 48 minutes”; 

“60,012 pay periods where [they] worked more than 8 hours”; and “70,112 pay 

periods where [they] received a meal period.” Prime also indicated there 

were 71,314 pay periods where “the meal period ‘lockout system’ was in 

effect”; “employees received a rest period,” and they “received an itemized 

wage statement.” In July 2021, payroll director Amiatu signed a declaration,

which stated there were “36,227 pay periods” in which an “employee worked 

between 8 hours and 8 hours and 12 minutes and, pursuant to Prime’s grace 

period practice, was paid for 8 hours worked.” 

At trial, Domingo’s counsel referenced some of this pay period 

information in his opening statement, and Amiatu was examined about 

certain information. The interrogatory responses were identified at trial as 

Exhibit 72, and Amiatu’s declaration was identified as Exhibit 91. 
14

2. Applicable Law

“We review the trial court’s grant or denial of a motion to compel 

discovery for an abuse of discretion. [Citation.] The statutory scheme vests 

trial courts with ‘ “wide discretion” ’ to allow or prohibit discovery.” 

(Williams, supra, 3 Cal.5th at p. 540.) An appellant also must “ ‘show not 

only that the trial court erred, but also that the error was prejudicial’; i.e., . . .

that it is reasonably probable the ultimate outcome would have been more 

favorable to the [appellant] had the trial court not erred in the discovery 

rulings.” (MacQuiddy v. Mercedes–Benz USA, LLC (2015) 233 Cal.App.4th 

1036, 1045.)

3. Analysis

As a preliminary matter, it is not clear the record is adequate for our 

review. The motion to compel at issue—the one presumably filed around

March 2021 and addressed by the referee—does not appear to be in the 

record. Domingo also did not include the interrogatory responses in his 

appendix; Prime added them in its respondent’s appendix. (Ballard v. Uribe

(1986) 41 Cal.3d 564, 574 [“[A] party challenging a judgment has the burden 

of showing reversible error by an adequate record.”]; Wagner v. Wagner

(2008) 162 Cal.App.4th 249, 259 [appellants “had an affirmative obligation to 

provide an adequate record so that we could assess whether the court abused 

its discretion”].)

But even if the trial court erred in adopting the referee’s denial of 

Domingo’s motion to compel, he does not establish prejudice. 

Domingo conceded in his April 2021 reply brief that he did “not require 

all of the Time Records and Wage Statements at issue” if Prime provided 

certain information. Prime served responses with this information in June

2021, a month and a half before trial; Amiatu provided a declaration with 
15

more information; and these documents and the information therein were 

addressed at trial, including by Domingo’s counsel. Yet, Domingo did not 

address the interrogatory responses in his opening brief here, and forfeits any 

argument that he could have achieved a better result with the requested 

documents than with the interrogatory responses. (Raceway, supra, 2 

Cal.5th at p. 178.) On reply here, Domingo belatedly acknowledges the 

interrogatory responses, but still does not offer any reasoned argument why 

they were insufficient for most of the alleged violations. (Badie, supra, 67 

Cal.App.4th at pp. 784–785.) The prejudice arguments he advances in his 

opening brief are not persuasive.

First, Domingo argues he was “forced . . . to prove PAGA violations on a 

representative basis without any discovery as to Prime’s other nonexempt 

employees.” That is not accurate. Prime’s interrogatory responses provided

this kind of information, as did Amiatu’s further declaration. Further, to the 

extent Domingo is essentially arguing certain Prime practices are unlawful

(e.g., how it includes shift differentials in the regular rate), he does not 

explain how having actual time and wage records could have made any 

difference in his case presentation.

Second, Domingo contends “contact information and relevant 

employment records” for other employees are “routinely discoverable as an 

essential prerequisite to effectively seeking group relief, without . . . good 

cause,” citing Williams, supra, 3 Cal.5th at p. 538. Williams indicated 

contact information was warranted without good cause, not document 

demands. (Ibid.) Domingo did receive contact information, for over 1,500

employees. Williams did not involve a situation akin to this one, where a

plaintiff acknowledged he could rely on employer-provided information. 

(Nolan v. City of Anaheim (2004) 33 Cal.4th 335, 343.)
16

Finally, Domingo argues the trial court “repeatedly lamented [his]

failure to establish his claims on a representative basis, appearing to reject 

certain established violations on such grounds,” noting on reply that it was 

the court that denied him representative discovery. We reject his 

characterization of the court’s decision. The court noted some of the pay 

period information, reflecting it considered the discovery as to other 

employees that Domingo did obtain. Domingo does not provide any 

explanation or examples for his claim that the court “appear[ed] to reject 

certain established violations” for lack of representative proof. In any event,

he has to show he could have achieved a better result with the time and wage

records, not just that the court’s rulings were inconsistent. He fails to do so, 

and does not establish reversible error. 

C. Meal Periods

Domingo contends the trial court erroneously concluded he did not 

establish meal period violations, in light of Prime’s meal period timekeeping 

system, purported admission to violations during an event known as Hospital 

Week, and payment of meal period penalties. We reject each contention.

1. Additional Facts

Prime’s meal period policy provides for a duty-free, 30-minute meal 

period. Amiatu testified about the meal period timekeeping system and 

related records, while Domingo, Granger, and Quinonez testified about meal 

periods in practice, including during Hospital Week.

For the meal period timekeeping system, Amiatu stated that if an 

employee tries to clock back in early, “an error . . . appears on the time clock 

with the time indicating when their 30-minute meal break will be complete.” 

She explained Prime “want[s] to make sure that employees do take their 30-

minute uninterrupted,” and there were two ways to record the time if 
17

employees were called back early. First, they could “fill[] out the . . .

timekeeping authorization form, submit [it] to their manager, and [the 

manager] can fix it right away.” Second, they could “wait until the end of 

their shift to enter in that time.” Employees also could “always go back” and 

check their time record at the time clock.

Amiatu explained that when employees “clock[] out at the end of their 

shift, an attestation will appear on the screen,” and by choosing “agree,” they 

attest “they took their . . . meal, their rest period, and . . . did not work any 

unauthorized overtime or off the clock work.” If they chose “disagree,” a

second screen appeared, which allowed the employee to identify issues, 

including “Work Load Prevented Meal Period” and “I Chose Not To Take A 

Required Meal Period.”8 Attestation records for Domingo and Granger 

showed each always selected “agree.” Amiatu also addressed Prime’s 

payment of meal premiums (which we address post), and said an employee 

who chose not to take a meal did not receive a premium, but was “paid for all 

their hours worked.” 

Amiatu also described the “time record audit trial,” which reflected

edits. She testified Domingo’s audit trail from March 2018 to January 2019 

(i.e., the beginning of the relevant time period, through his termination) 

showed he made eight edits, six involving meals. Based on this, Amiatu

understood he knew how to “manually enter his meal break,” and “edit . . . or 

input his time . . . at the clock.” She said Granger made seven edits, which

showed “he knew how to submit edits for his meal period punches.” 

8 There was also an option for “Took Meal Period Forgot to Swipe.” 

“Workload Prevented” and “Chose Not to Take” were options for rest periods, 

too.
18

Domingo testified “most of the time [they were] being called back to 

work” from meal breaks to help other employees. He further testified that on 

the Monday of Hospital Week in 2018, Quinonez told them “don’t take your 

break.” He first said they “were told not to punch out,” but then denied 

recalling if he punched out. His time records did not show a missing meal. 

Domingo admitted he was trained to take a 30-minute meal period, was “not 

to work off the clock,” and could refuse to work during his meal break (but 

would not receive the extra hour of pay if he chose to work). As for the 

attestation and time edits, Domingo remembered being told to “just click on 

agree,” and when asked if he edited time punches, said he was “not in the 

position” to edit his time. He did not know about practices for meal and rest 

breaks in other departments (or for overtime, timekeeping, reimbursements, 

or off-the-clock work). 

Granger was asked by Domingo’s counsel if he always received “30 

minutes uninterrupted” for his meal break. When he said yes, counsel asked 

if was “ever interrupted,” and he responded “Yes, sometimes,” by Quinonez. 

Granger testified Quinonez told them to work during one day of Hospital 

Week, though he did not recall the day, and stated he “didn’t punch out.” He

estimated there were nine other kitchen employees working at the time. The 

trial court deemed cross-examination by Prime waived, stating it did not 

think Granger’s testimony “added anything” and he “was just not a creditable 

witness.” 

Quinonez testified Domingo never told her he was not receiving full 

meal breaks, or complained he “could not record the actual end of his meal 

period.” She denied she told him or any other employee to clock out but 

continue working. When asked if she ever called Domingo back early from a 

meal break, she said the “only time [she] can remember where . . . that might 
19

have—where that did happen” was Hospital Week, when she “can remember 

calling folks back.” She said “human resources was involved”; “appropriate 

adjustments” were made to time cards; and employees were given “meal 

penalties that they were due.” Quinonez later testified she “did call 

[Domingo] back,” they gave him a meal period penalty, and she believed the 

payroll system would reflect this. 

The trial court summarized the foregoing testimony. It did not find 

compelling Domingo’s claim that he was usually called back early from 

meals, and did not find credible his claim that he was just told to click 

“agree.” It also observed Domingo was “[u]naware of meal and rest period” 

practices in other departments. The court found Granger’s testimony about 

his meals being interrupted “[s]ounded scripted,” and noted it had waived 

cross-examination. 

The trial court then set forth its rulings. First, the court found 

Domingo did not prove the meal period timekeeping system led to Prime 

“masking short meal periods” or “failing to maintain accurate . . . records.” It

found employees “if necessary, could still accurately record a short meal 

period, explaining, “The system provides two methods for employees to claim 

a meal period premium on those rare occasions (one day during hospital

week) where the meal period was foreshortened. The evidence was that 

kitchen employees knew they could edit their time and did so.” The court 

determined the system was Prime’s “reasonable effort to ensure and promote 

compliance with the Labor Code” under Brinker v. Superior Court (2012) 53 

Cal.4th 1004, 1040 (Brinker). The court also found the “evidence did not 

preponderate in favor of a finding that this claim was representative.”

Second, the trial court found Domingo “did not make out a PAGA claim 

for meal and rest period violations,” in general. It found the “evidence easily
20

preponderated in favor of a finding that [Prime’s] meal and rest period 

policies were facially lawful.” The court “found the testimony of [Amiatu] and 

[Quinonez] more credible than that offered by [Domingo] and [Granger] on 

how those policies were carried out in the day-to-day operation of the 

kitchen.” The court again found the evidence did not favor a finding that the

claim was representative. 

2. Applicable Law

“Under California law, employers must generally provide employees 

with one 30-minute meal period that begins no later than the end of the fifth 

hour of work and another 30-minute meal period that begins no later than 

the end of the 10th hour of work.” (Donohue, supra, 11 Cal.5th at p. 61, citing

§ 512; Wage Order 5, subd. 11(A) [requiring meal periods consistent with

§ 512].)

The California Supreme Court set forth in Brinker, and reiterated in 

Donohue, the following rules: “An employer is liable only if it does not 

provide an employee with the opportunity to take a compliant meal period. 

The employer is not liable if the employee chooses to take a short or delayed 

meal period or no meal period at all. The employer is not required to police 

meal periods to make sure no work is performed. Instead, the employer’s 

duty is to ensure that it provides the employee with bona fide relief from duty 

and that this is accurately reflected in the employer’s time records. 

(Donohue, supra, 11 Cal.5th at p. 78; see Brinker, supra, 53 Cal.4th at

pp. 1040–1041.)

“If an employer does not provide an employee with a compliant meal 

period, then ‘[it] shall pay the employee one additional hour of pay’ ” at the 

employee’s regular rate. (Donohue, supra, 11 Cal.5th at p. 61, citing § 226.7, 

subd. (c).) “In addition to providing premium pay, the employer must 
21

compensate the employee for any time worked during the meal period if ‘it 

“knew or reasonably should have known that the worker was working 

through the authorized meal period.” ’ ” (Donohue, at p. 68, citing Brinker, 

supra, 53 Cal.4th at p. 1040, fn. 19.) 

An employer also has a “duty to maintain accurate records of meal 

periods.” (Donohue, supra, 11 Cal.5th at p. 76; Wage Order 5, subd. (7)(A), 

7(A)(3) [employer shall keep “accurate information” as to employees, 

including time records showing “[m]eal periods”].)

3. Analysis

a. Meal Period Timekeeping System

Domingo argues the trial court’s ruling was contrary to the record and 

the California Supreme Court’s decision in Donohue. We disagree.

First, he contends the undisputed evidence showed that due to Prime’s 

timekeeping system (which he calls a “lockout system”), employees “were not 

(at times) able to accurately record” meal break returns, and he himself “was 

often required to . . . return to work ‘early,’ ” could not record these early 

returns, and did not receive penalties. But the evidence and inferences as 

these issues were disputed and the trial court rejected Domingo’s position, so

he is functionally asking us to reweigh the evidence. We may not do so. 

(Ford, supra, 28 Cal.App.4th at p. 1200.) 

Even if Domingo had preserved a substantial evidence challenge to the 

trial court’s findings, the record supports them. Amiatu’s testimony reflected

Prime intended for employees to take compliant meal breaks, and employees

still had two methods to record short meals that did occur (i.e., submitting a 

form, or adjusting the time at shift-end). The evidence also showed

employees knew how to use these methods, including the edits in Domingo’s

and Granger’s audit trails; Amiatu’s testimony that these records reflected 
22

they knew how to record meals; and their attestations, which indicated they 

received meal breaks. The court did not find credible Domingo’s claim that 

he was told to just click “agree” for the attestation, and could impliedly reject 

his testimony that he could not edit time. 

Second, Domingo argues Prime’s timekeeping system is inconsistent 

with Donohue. We reject this argument as well. 

In Donohue, the employer’s timekeeping system rounded meal period 

“time punches to the nearest 10-minute increment.” (Donohue, supra, 11 

Cal.5th at p. 62.) If there was a missed, short, or delayed meal (after 

rounding), a drop-down menu let the employee choose an option indicating 

why. (Id. at pp. 62–63.) Employees also could ask for manual adjustments, 

and had to sign a certification at the end of each biweekly pay period that

meals were received. (Id. at p. 63.) The plaintiff brought a class action, this 

court affirmed summary judgment for the employer, and the California 

Supreme Court reversed. (Donohue, supra, 11 Cal.5th at pp. 61, 63–64.)

The Court held employers “cannot . . . round[] time punches . . . in the 

meal period context.” (Donohue, supra, 11 Cal.5th at p. 61.) The Court also 

held “time records showing noncompliant meal periods raise a rebuttable 

presumption of meal period violations, including at the summary judgment 

stage.” (Ibid.) The Court stated, in part:

“It is important that employers keep accurate records so that 

enforcement agencies can ‘ “adequately investigate and enforce” a wage 

order’s meal period provisions.’ [Citation] . . . . If the records are 

accurate, then the records reflect an employer’s true liability. . . . If the 

records are incomplete or inaccurate—for example, the records do not 

clearly indicate whether the employee chose to work during meal 

periods despite bona fide relief from duty—then the employer can offer 

evidence to rebut the presumption.” 
23

(Id. at p. 76.) The Court also disagreed the presumption required employers 

to “police meal periods,” explaining it “[i]nstead . . . requires giv[ing]

employees a mechanism for recording their meal periods and to ensure that 

employees use the mechanism properly.” (Ibid.)

Domingo contends Prime’s meal period timekeeping system failed to 

produce accurate records, thus raising a “ ‘rebuttable presumption’ of Labor 

Code violations,” which the court failed to apply. He also contends the court 

improperly permitted Prime to “ ‘shift[] the burden’ to keep accurate time 

records” to employees. We are not persuaded.

First, Domingo appears to assume Donohue’s rebuttable presumption 

analysis applies here, despite a different procedural posture and facts. The 

factual differences alone show the analysis does not neatly apply. In 

Donohue, employees punched in and out for meals when they chose, but the 

employer rounded the punches—resulting in records that did not reflect the 

actual meal periods. Here, Prime intended for employees to actually take 30-

minute meal periods, while providing same-day methods to record short 

meals. There is nothing intrinsically inaccurate about Prime’s records. 

Even if the trial court should have applied a rebuttable presumption of 

meal period violations, Domingo does not establish prejudice. (Navigators 

Specialty Ins. Co. v. Moorefield Constr., Inc. (2016) 6 Cal.App.5th 1258, 1287–

1288 [“[m]isallocation of the burden of proof in a bench trial is not reversible 

error per se but must be prejudicial to warrant reversal”; if substantial 

evidence supports finding, misallocation is harmless].) Employers must give 

employees a way to record meal breaks and ensure they use it properly.

(Donohue, supra, 11 Cal.5th at p. 77.) When the presumption applies, the 

employer can present evidence that employees were “compensated for 

noncompliant meal periods” or “provided compliant meal periods during 
24

which they chose to work.” (Ibid.) The record contained evidence on these 

matters: Prime used a timekeeping system that encouraged full meal 

periods, but still provided ways to record noncompliant ones; employees could 

indicate what happened (including that they “chose” to work); and Prime paid

premiums and/or compensation as applicable. On this record, the court could

find Prime’s system did not violate meal period requirements, 

notwithstanding any contrary presumptions.

Second, Domingo does not establish Prime’s system improperly shifted 

the recordkeeping burden to employees. In stating employees must supply a 

mechanism to record meal breaks, Donohue contemplates employers can 

require use of such mechanisms. (Donohue, supra, 11 Cal.5th at p. 77; cf. id.

at p. 68 [employer must pay for time worked during meal breaks if it knew or 

should have known about it].) The California Supreme Court took issue with 

the drop-down menu there to log meal issues, because it was triggered by 

rounded punches. (Id. at p. 80 [system “would have ensured accurate 

tracking of meal period violations if it had simply omitted rounding”].) The 

Court also found the biweekly certifications there were inaccurate to the 

extent they required employee to keep their own records. (Id. at pp. 80–81.) 

Here, in contrast, Prime employees would know about a potentially short 

meal break, because the time clock would tell them to return after 30 

minutes. If they ended up working, they could fix it right away, or address it 

in their end-of-shift attestation just hours later—with no need to keep 

records.

b. Hospital Week

The trial court referenced “rare occasions (one day during hospital 

week) where the meal period was foreshortened,” in finding employees could 

accurately record a short meal if needed. Domingo argues uncontroverted 
25

evidence established there were meal period violations during Hospital Week, 

including on a representative basis. The inferences to be drawn from the 

evidence were not undisputed, and substantial evidence supports the court’s 

implied finding that the Hospital Week evidence was insufficient to prove

meal period violations. 

Domingo and Granger said they were called back to work on one day of 

Hospital Week, but Domingo’s time records did not show a missed meal, and 

both agreed in their attestations that they received meal breaks. As for 

Quinonez, she did say she called Domingo and others back that week, human 

resources was involved, and the payroll system would reflect he received a 

penalty. But she supervised numerous employees, initially only said she 

“might” have called Domingo back, and Domingo and other employees could 

have chosen to work. (In re Daniel G. (2004) 120 Cal.App.4th 824, 830 

(Daniel G.) [trier of fact “may believe . . . part of a witness’s testimony”; “[o]n 

appeal, we must accept that part of the testimony which supports the 

judgment”].) Further, Quinonez worked in food service, not human resources 

or payroll, and Amiatu, who did work in payroll, testified Domingo and 

Granger knew how to record meals. 

Viewing this record in the light most favorable to the judgment, the 

trial court impliedly could find that even if there were potentially short meals 

during Hospital Week, Domingo did not prove violations based on them. 

c. Payment of Premiums

Finally, Domingo argues Prime’s payment of meal break premiums

“established liability for meal period violations.” He makes the same

argument for rest break penalties. We reject both.

Section 226.7, subdivision (c), provides that “[i]f an employer fails to 

provide an employee a meal or rest . . . period . . . , the employer shall pay the 
26

employee one additional hour of pay at the employee’s regular rate of 

compensation . . . .”

Amiatu testified that during the relevant time period, Prime paid 6,207 

meal period premiums and 1,058 rest break premiums. She explained that 

when an employee chose “Workload Prevented” for a meal or rest period, 

Prime did not “do any independent investigation to determine” if it happened; 

rather, they “just pay.” When Domingo’s counsel asked if Prime paid meal 

period penalties “because [it] concluded that there were meal period 

violations,” Amiatu said, “That’s correct.” His counsel tried to elicit similar 

testimony on rest breaks, but she testified they “pay based on what the 

employee elected,” and she was “unaware of any” occasion when Prime 

disputed an employee missed a break, reiterating, “because we pay.” 

The trial court could impliedly find Prime’s payment of premiums, 

without more, did not prove it failed to provide compliant meal or rest breaks. 

Although Amiatu indicated at one point that meal period premiums were 

based on violations, she mostly testified consistently that Prime paid

premiums without investigating if a violation actually occurred. The court 

could credit that testimony, and decline to focus on the inconsistent response. 

(Daniel G., supra, 120 Cal.App.4th at p. 830.) In turn, the court could find 

that, absent confirmatory investigation, the premium payments just reflected 

employees claimed they did not receive breaks—not that Prime failed to 

provide them. (Compare In re Automobile Antitrust Cases I & II (2016) 1 

Cal.App.5th 127, 149 [by “engaging in this review and revision process,” 

executive “clearly manifested his belief in the accuracy of the meeting 

minutes”]; SD Metro, supra, 73 Cal.App.4th at p. 528 [we “indulge[] all 

reasonable inferences possible to uphold the trial court’s findings”].) 
27

Domingo argues that “[t]o the extent the trial court implicitly relied on

Prime’s payment of the penalties as excusing its liability, the California 

Supreme Court has repeatedly rejected the notion that an employer can avoid 

liability for violating § 226.7 merely by paying meal period premium 

penalties,” citing Kirby v. Immoos Fire Protection, Inc. (2012) 53 Cal.4th 1244 

(Kirby) and Kim v. Reins Int’l Cal., Inc. (2020) 9 Cal.5th 73 (Kim). (See 

Kirby, at p. 1256 [attorney fees issue; “provision of an additional hour of pay 

does not excuse a section 226.7 violation”]; Kim, at p. 84 [PAGA standing 

after individual plaintiff’s settlement; “payment of this statutory remedy

‘does not excuse’ ” violation].) 

But, again, the trial court could find the premium payments did not 

establish violations in the first place, such that it would not reach the issue of 

whether liability was excused. Should Domingo seek to rely on Kirby and 

Kim to suggest penalties can establish violations, without more, that reliance 

is misplaced. If anything, they underscore the penalty is separate from the 

violation, and proof of the violation is necessary. (See Kirby, supra, 53 

Cal.4th at pp. 1256–1257 [“failure to provide an additional hour of pay does 

not form part of a section 226.7 violation . . . . failure to provide required meal 

and rest breaks is what triggers a violation”]; Kim, supra, 9 Cal.5th at p. 84 

[“The remedy for a Labor Code violation . . . is distinct from the fact of the 

violation itself.”].) 

C. Rest Breaks

In addition to his rest break argument based on premium payments 

(which we have rejected), Domingo contends the trial court failed to consider 

Prime’s rest break policy in practice. This contention lacks merit, too. 
28

1. Additional Facts

Prime’s rest break policy provides for one duty-free, 10-minute rest 

break for every four hours of work. Amiatu testified that, as with meal 

periods, employees had two ways to report rest break issues: submitting a 

form at the time to the manager, or selecting “workload prevented” during 

the end-of-shift attestation process. 

Domingo testified he usually took his first rest break and his second 

break was scheduled, but he was “not able to take it” two or three times a 

week because it was “really busy.” He subsequently testified he was 

contending he “never took” his second rest break. He “never told anyone in 

management” he was “unable to take [his] second rest break.” Granger 

denied taking “any rest breaks,” explaining they were busy. 

Quinonez denied supervisors knew employees were not taking second 

breaks due to kitchen rushes, and said they “were rigorous about encouraging 

and reminding and directing employees to take their breaks as scheduled.” 

She testified Domingo never complained to her that he could not take a 

second rest break, and she had no knowledge of Granger working through 

rest breaks. She acknowledged Domingo generally arrived at work before 

her, and that if Granger “[took] his break at other than his scheduled time”

when she was at home, she would not know. 

The trial court described the testimony regarding rest breaks, including 

that Domingo acknowledged his second rest break was scheduled, but he 

claimed he could not take it, and that Granger said he never received rest 

breaks. The court determined Domingo did not establish a rest break 

violation. As with the meal periods, the court found the rest break policy was

facially lawful; Amiatu and Quinonez were “more credible” than Domingo and 

Granger regarding how the policy was “carried out in the day-to-day 
29

operation of the kitchen,” and the evidence did not reflect the claim was 

representative. 

2. Analysis

Domingo argues the trial court “fail[ed] to consider the unrebutted 

evidence of rest period violations,” and erroneously analyzed “the language of 

the rest period policy only.” (Some capitalization omitted.) This argument 

mischaracterizes the court’s ruling and the record, and we reject it. 

“California law requires employers to relieve their employees of all 

work-related duties and employer control during 10-minute rest periods.” 

(Augustus v. ABM Security Services, Inc. (2016) 2 Cal.5th 257, 272; § 226.7, 

subd. (b) [“An employer shall not require any employee to work during a . . . 

rest . . . period mandated” by IWC wage order]; Wage Order 5, subd. 12(A)

[requiring 10 minutes net rest time per four hours worked].) 

First, the trial court’s findings and analysis make clear it considered 

whether the rest break policy was compliant in practice. It acknowledged 

Domingo and Granger’s testimony about not receiving certain or all rest 

breaks (noting Domingo admitted his second one was scheduled), and still 

concluded, as with meal periods, that Amiatu and Quinonez were more 

credible about how the rest break policy was “carried out in the day-to-day 

operation of the kitchen. . . .” That the court set forth certain findings on 

meal and rest periods concurrently does not, as Domingo asserts, establish

the “court failed to even distinguish between [them].” 

Second, the evidence was disputed. Domingo and Granger testified 

they missed breaks because the kitchen was busy, but Quinonez denied 

supervisors knew of missed breaks due to kitchen rushes and, to the 

contrary, said they “remind[ed] and direct[ed]” employees to take their 

breaks. This evidence was for the trial court to weigh, not us. (Ford, supra, 
30

28 Cal.App.4th at p. 1200.) Domingo suggests his and Granger’s testimony 

established violations because no witness rebutted each assertion, and 

Quinonez was not always present while they were working. The court could 

reject their testimony because it did not believe them. (MAG Aerospace, 

supra, 12 Cal.App.5th at p. 239 [court “may refuse to believe some 

witnesses”]; see Filip v. Bucurenciu (2005) 129 Cal.App.4th 825, 836 

[provided trier of fact “ ‘does not act arbitrarily . . . , it may reject the 

testimony of a witness even though the witness is uncontradicted’ ”]; ibid. 

[“The fact that [appellant] testified to such payments did not obligate the 

court to accept that testimony.”].) 

Finally, even if we construed Domingo’s argument as a substantial 

evidence challenge, we would reject it. Again, the court expressly found 

Quinonez more credible than Domingo and Granger regarding kitchen 

operations. Her testimony was evidence that Prime provided compliant rest 

breaks, consistent with its policy, to Domingo and other employees. 

D. Out-Of-Work Communications

Domingo argues the trial court erroneously determined he did not 

establish violations based on unreimbursed expenses and compensation for 

out-of-work communications. We disagree. 

1. Additional Facts

The employee handbook contained multiple provisions for scheduling 

and communication. The “Schedules” policy stated, “It is the employee’s 

responsibility to check his/her answering machine/pager/cell phone should 

any work schedule changes occur.” The “Call-Offs” policy said “schedules 

may be adjusted to meet the demands of [a] fluctuating [patient] census,” and 

employees “must check their messages or answering machine before coming 

to work.” Another section, “Attendance” said, “Generally, employees that are 
31

going to be tardy for work or who will be unable to work . . . are required to 

call a minimum of two (2) hours prior to the start of the shift.” There was 

also a “Standby and Callback” policy. The “Callback” subsection said, in part, 

that “all time spent on a work related phone call shall be reported by the 

employee and will be compensated.” 

Amiatu testified Prime required employees to call “as soon as they 

knew they would be absent” and “at least two hours before their scheduled 

start.” They had to call “if they were going to be tardy” too, and could be 

disciplined for not doing so. When asked if Prime reimbursed employees for 

cell phone costs to “record a tardy,” she said if they “submit a reimbursement 

on their cell phone usage,” it would be processed through accounts payable. 

She also testified employees “must check their messages or answering 

machines” before work, but “wouldn’t say daily”; rather, it was when a 

supervisor did “call[-]off” (i.e., adjusted employee numbers). She agreed

Prime “will pay the employees for all time spent on a work-related phone 

call,” so long as they submit an authorization form (as payroll is “not aware” 

otherwise.)

Domingo testified “most of the time” after he woke up, he “would check 

[his] cell phone” for messages, “because sometimes they would text us[,]

whether they would change our schedule or . . . ask us to come early.” It 

would take “one to two minutes,” and “sometimes . . . a little longer” because 

he had other messages. He never asked to be paid for this time, because he

was not aware he could be. When asked on direct examination if Prime 

reimbursed his cell phone costs, he said “no,” because he was not aware he 

could be reimbursed. On cross-examination, he was read his deposition 

testimony in which he said “they will reimburse you” if “they ask you to 

purchase items for work,” and admitted he was “aware that other kitchen 
32

workers were reimbursed for expenses.” He also admitted nobody told him 

he “could not submit [his] cell phone bill for reimbursement.” 

Domingo further testified Quinonez “always calls us” and “always 

sends us messages when we are off work.” A trial exhibit contained all of the 

text messages he had, and consisted of five pages of brief exchanges with 

Quinonez. Domingo started two of them; in one, he told her he was switching 

with another employee the next day, and in the other, he said he could not 

work because his car was towed. Most of Quinonez’s messages involved 

scheduling, such as asking if he could cover a shift. As for her remaining 

messages, in one she told him the boiler had not worked and it was best to 

run the pans through the dishwasher in the morning. In another, she told

him about other employees being unavailable, and that it was okay to close 

the grill. There was also a message in which she told him to check on a pie, 

and she said he was likely at work for it. 

Granger, like Domingo, testified the first thing he would do on work 

days was check his cell phone for messages. He also testified Quinonez

contacted him to leave a message “twice a week,” and if he had a voicemail, it 

took “two to three minutes” to check. He never asked to be paid for checking 

messages, and when asked if he requested reimbursement, he said he “didn’t 

know if we can . . . .” 

Quinonez testified she would contact kitchen employees when shifts

had to be covered, to “make those shifts available” to them. Employees “had 

every right to ignore the message,” with no discipline, and Domingo ignored 

her messages on occasion. An employee “could specify any kind of contact 

method that they preferred,” including home phone, cell phone, or “their 

mother . . . .” She normally contacted Domingo by text message, as this was 

his preferred method, and believed most messages related to scheduling. She 
33

did not recall texting Granger, but said it was likely she would have done so 

for shift coverage. She did not specifically “recall calling a kitchen employee 

for a work-related call after hours.” 

When asked if employees were paid when she texted them, Quinonez

explained they “always compensated employees for any hours that they 

worked,” including off the clock, but “offering them the opportunity to come 

into work was not considered work on their part . . . . She agreed “kitchen 

employees know how to seek reimbursement for business expenses,” noting 

situations when certain workers had to purchase supplies, and acknowledged 

it was rare.

The trial court found “[a] lot of [Domingo’s] text message testimony 

seemed scripted to the court. Never asked to be paid for this time. . . . 

Claims ‘we complained’ because [Quinonez] ‘always sends us messages when 

we are off work.’ In light of the relative dearth of documentary evidence, the

court disbelieves this testimony.” The court also found he admitted “no one 

told him” he could not seek reimbursement, he was “[i]mpeached with depo” 

on this issue, and he was unaware of practices in other departments, 

including as to reimbursements. The court found Granger “[n]ever asked to 

be paid for checking messages” or reimbursement. The court noted Amiatu’s 

testimony that Prime paid for work-related phone calls, and employees “[j]ust 

have to submit the form.” 

The trial court determined Domingo did not establish reimbursement 

or wage violations based on the cell phone use. It found he “never sought 

reimbursement, despite being aware he was entitled to, and thus was never 

denied reimbursement.” The court then found, “No wages are due . . . merely 

as a result of an inquiry . . . about . . . availability to cover a shift. . . . 

Replying that one is unable to cover a work shift is not ‘work.’ ” Addressing 
34

specific messages, the court found the pie text occurred when he was clocked 

in, and the dishwasher text “simply provided an update . . . so he could act on 

[it] the following morning, when he was clocked in and being paid.” The court 

noted he “did not respond” and found that “[t]o the extent he even read it 

before he was clocked in,” the “time spent doing so is so ‘minute or irregular 

that it is unreasonable to expect the time to be recorded,’ ” citing Troester v. 

Starbucks Corp. (2018) 5 Cal.5th 829, 834–835 (Troester). The court also 

determined the evidence did not reflect either claim was representative. 

2. Reimbursement

a. Applicable Law

Section 2802, subdivision (a) provides: “An employer shall indemnify 

his or her employee for all necessary expenditures or losses incurred by the 

employee in direct consequence of the discharge of his or her duties, or of his 

or her obedience” to the employer’s directions.” (See Cochran v. Schwan’s 

Home Service, Inc. (2014) 228 Cal.App.4th 1137, 1143–1144 (Cochran).) “The 

purpose of this statute is ‘ “to prevent employers from passing their operating 

expenses on to their employees.” ’ ” (Id. at p. 1144.) “ ‘[B]efore an employer’s 

duty to reimburse is triggered, it must either know or have reason to know 

that the employee has incurred an expense.’ ” (Wilson v. The La Jolla Group

(2021) 61 Cal.App.5th 897, 919 (Wilson).)

In Cochran, the Court of Appeal held that when “employees must use 

their personal cell phones for work-related calls, . . . section 2802 requires the 

employer to reimburse them.” (Cochran, supra, 228 Cal.App.4th at p. 1140, 

italics added; id. at pp. 1144–1145 [reversing denial of class certification to 

consider issue of mandatory personal cell phone use].) 

“Section 2804 provides that this indemnification requirement [under 

section 2802] cannot be waived by contract.” (USS–Posco Industries v. Case 
35

(2016) 244 Cal.App.4th 197, 205; § 2804 [any “agreement . . . made by any 

employee to waive the benefits of this article . . . is null and void”].) 

b. Analysis

Domingo argues the trial court erroneously ignored Cochran, section 

2804, and standards for representative claims in concluding he did not prove 

a reimbursement violation. He establishes no error here.

First, Domingo contends the “undisputed evidence showed standard 

policies[] requiring [him] and all other employees to use their cell phone to 

call in to Prime,” and Cochran therefore applies. (Cochran, supra, 228 

Cal.App.4th at pp. 1144–1145.) We disagree. The trial court impliedly could 

find Prime did not require employees to use cell phones, and the record 

supports that finding. The employee handbook reflected, and Amiatu 

confirmed, that employees had to alert Prime when they were going to be 

absent or tardy, and check their messages for schedule changes (at least 

when there were adjustments to staffing numbers). But Quinonez testified 

employees could use any contact method, even a family member, and that 

text message exchanges about scheduling were voluntary. The handbook also 

indicated employees could use an answering machine for messages. 

Second, Domingo argues the trial court ignored section 2804 in

“finding . . . [he] waived his right to [reimbursement] because he ‘never 

sought reimbursement.’ ” The court did not find Domingo waived anything. 

Rather, it found he “never sought reimbursement, despite being aware he 

was entitled to, and thus was never denied reimbursement.” This express 

finding also reflects the court impliedly found that had Domingo submitted a 

reimbursement request, it would have been addressed. These findings were

consistent with applicable law, which requires reimbursement when the 

employer “know[s] or have reason to know that the employee has incurred an 
36

expense.” (Wilson, supra, 61 Cal.App.5th at p. 919.) Domingo cites no 

authority that section 2804’s bar on contractual waiver obviates the need for 

the employer to have reason to be aware of claimed expenses. He relatedly 

asserts “common sense dictates [his] claim for reimbursement was timely 

brought, via [his] . . . lawsuit” and PAGA notice. He cites no case for this 

assertion, either, and we do not see how it is reasonable to delay a 

reimbursement request until one is preparing to sue over it. 

Finally, Domingo argues the trial court “ignored controlling precedent 

in finding that [his] claim for reimbursement was not representative,” citing 

the text of section 2802 and its purpose (i.e., to prevent the passing of 

operating expenses on to employees). He notes Prime’s employee handbook 

states it applies to all employees, and was the same throughout the relevant

time period. Neither general reimbursement principles, nor Prime’s

handbook, establish error here. Domingo has not established Prime required

cell phone use, or any practice of denying reimbursements to the extent 

requested. Indeed, Domingo conceded kitchen employees received

reimbursements for other reasons, and he did not know about practices in 

other departments.9

9 Domingo raises more points on reply, which he forfeits because they are 

late, and to the extent unsupported by argument and authority. (Raceway, 

supra, 2 Cal.5th at p. 178; Badie, supra, 67 Cal.App.4th 779, 784–785.) For 

example, he argues “all phone costs . . . must be reimbursed,” cellular or not. 

But he does not establish requiring workers to report in when sick or tardy or 

to check messages, without more, requires reimbursement. He also contends 

Prime was aware he chose cell phone as his contact method and received 

work messages, and the trial court improperly denied representative 

discovery here. But cell phone use still was not required, he has not shown

the messages were compensable work (as discussed post), and he does not 

explain how the discovery would have led to a better result.
37

3. Compensation

a. Applicable Law

Wages must be paid to an employee “for all hours worked.” (Wage 

Order No. 5, subd. 4(A).) “[H]ours worked” is “the time during which an 

employee is subject to the control of an employer, and includes all the time 

the employee is suffered or permitted to work, whether or not required to do 

so . . . .” (Wage Order No. 5, subd. 2(K).) The “time during which ‘ “the 

employee is suffered or permitted to work” ’ encompasses the time during 

which the employer knew or should have known that the employee was 

working on its behalf.” (Troester, supra, 5 Cal.5th at p. 840.) 

In Troester, which involved a Starbucks worker, the California 

Supreme Court held the federal de minimis rule did not apply to California 

wage and hour claims, and although California also had a de minimis rule, it 

was “not applicable to the regularly reoccurring activities” at issue there, 

which took four to ten minutes per shift. (Troester, supra, 5 Cal.5th at p. 848; 

id. at p. 835 [tasks included a computerized “close store procedure,” setting 

the alarm, locking the door, and walking coworkers to their cars].) The Court 

explained, in part, that it “ ‘recently . . . “cautioned against ‘confounding 

federal and state labor law’ [citation] and . . . ‘that where the language or 

intent of state and federal labor laws substantially differ, reliance on federal 

regulations or interpretations to construe state regulations is misplaced.’ ” ’ ” 

(Id. at p. 839, quoting Mendiola, supra, 60 Cal.4th at p. 843.)

The Court concluded, “We leave open whether there are wage claims 

involving employee activities that are so irregular or brief in duration that 

employers may not be reasonably required to compensate employees for the 

time spent on them.” (Troester, supra, 5 Cal.5th at p. 848; see id. at p. 834 

[similar observation for time that is “so minute or irregular”].)
38

b. Analysis

Domingo argues the trial court erred in relying on Troester, and 

undisputed facts establish Prime failed to compensate required work. We 

disagree the trial court misapplied Troester, and Domingo’s arguments 

regarding the record lack merit.

Domingo contends Troester held that “[w]hile ‘minute or irregular’ work 

may be non-compensable under the federal ‘de minimis’ doctrine, this 

doctrine did not apply under California law,” and “[i]nstead, due to the 

‘employee protective’ intent behind the [Labor Code], all ascertainable time 

spent under the employer’s control must be compensated[.]” He 

mischaracterizes Troester. The Court recognized that although the California 

de minimis doctrine did not apply there, where the employee regularly 

engaged in several minutes of post-shift tasks, there may be “activities . . . so 

irregular or brief,” or “so minute or irregular,” as to be noncompensable. 

(Troester, supra, 5 Cal.5th at pp. 834, 848.) The trial court here reasonably 

considered whether the activities at issue were “so minute or irregular” that 

no compensation was due. Domingo establishes no legal error.10

Domingo’s arguments as to the record are no better. The facts are, 

again, disputed, and because he fails to properly challenge the trial court’s 

findings on substantial evidence grounds, he forfeits the issue. (Foreman, 

supra, 3 Cal.3d at p. 881.) His contentions lack merit, regardless.

First, Domingo argues checking and responding to messages was 

required, as evidenced by “numerous” and “routine” text message exchanges 

between Domingo and Quinonez. The issue is whether the communication 

10 Domingo does not contend the out-of-work communications placed him 

under Prime’s control, and we do not reach that issue.
39

activities at issue were “hours worked,” which can implicate duration and 

regularity. (Wage Order No. 5, subd. 2(K); Troester, supra, 5 Cal.5th at

pp. 834, 848.) Substantial evidence supports the finding that these activities 

were too irregular and minimal to be compensated.

The trial court did not believe Domingo’s testimony that Quinonez 

“always sends [them] messages,” citing the “relative dearth of documentary 

evidence.” The record reflects this lack of evidence, as Domingo produced just 

five pages of messages, with brief exchanges mostly about shifts and 

scheduling. Quinonez also testified workers were not required to respond 

(and Domingo himself sometimes ignored messages), supporting the 

conclusion that these exchanges were irregular at most. 

The trial court also could find that any time spent on these irregular, 

brief exchanges, or checking messages in the morning, was minute. (Cf. 

Troester, supra, 5 Cal.5th at p. 843 [in “declin[ing] to decide whether a de 

minimis principle may ever apply to wage and hour claims,” noting FLSA 

case with “paperwork involving a minute or less” of employee time, and 

“hypothetical scenarios,” such as “an employee reading an e-mail notification 

of a shift change”]; id. at pp. 855–856, conc. op’n, J. Kruger [noncompensable 

time might occur when “occasionally employees are notified of schedule 

changes by e-mail or text message during their off hours and are expected to 

read and acknowledge the messages”; or when a computer login process 

usually takes “no more than a minute” or far less, but “rare[ly] and 

unpredictabl[y]” can take two to three minutes].) The court could impliedly 

reject Domingo’s testimony that it even took him “one to two minutes” to 

check messages in the morning, given the small number of messages he 

produced. Lastly, to the extent employees had to notify Prime when they 
40

were sick or tardy, Domingo does not argue or show these tasks took any 

routine, non-minute amount of time.

Second, Domingo argues Prime admitted “time spent on off-work calls 

should be paid, but only if the employee specifically asked for extra pay,” and 

they were never told the “time was compensable, let alone that they had to 

seek additional payment for it.” This is not an accurate description of the 

record, and does not help him regardless. The callback policy stated “all time 

spent on a work related phone call shall be reported by the employee and will 

be compensated,” making clear the employee simply had to notify Prime to be 

paid. Amiatu’s testimony confirmed employees did not have to “ask[] for 

extra pay”; they just had to submit an authorization form, so payroll knew 

about the call. None of this helps Domingo, either way, because he does not 

establish sick or tardy calls were “work[-]related”; that kitchen employees 

otherwise engaged in work-related calls (Quinonez did not remember making 

any such calls after hours); or that employees who did have work-related calls 

were not paid for doing so. 

F. Rounding and Grace Period Policy

Domingo contends the trial court erred by considering rounding and 

grace period issues without affirmative defenses; the grace period policy was 

separate and unlawful; and the rounding policy was unlawful as well. We 

reject his affirmative defense and grace period arguments, but conclude he 

has established reversible error as to the rounding policy based on the record 

before us.

1. Additional Facts

Prime used a JBDev timekeeping system, as noted, and a JBDev 

document explained how shift timekeeping worked. The system tracked time 

to the minute, and total time for the day was rounded to the nearest tenth of 
41

an hour, unless it was within 12 minutes of an hour. In that case the “grace 

period” applied, and the time was rounded to the nearest whole hour (i.e., 7 

hours, 48 minutes, and 8 hours, 12 minutes, rounded to 8 hours). The 

“Attendance” section of employee handbook stated: “The time keeping [sic]

grace period is for payroll computation purposes only and not to be confused 

with the disciplinary process for tardiness.”

In Domingo’s complaint, he alleged Prime “would receive ‘to-theminute’ start and end times,” but “thereafter alter - and deduct time from -

the Time Records,” which “caused the employees to lose compensation, 

including Overtime Compensation.” Prime did not plead affirmative defenses

based on its rounding and grace period policy. Domingo propounded requests 

for admission that mentioned the grace period, and discussed rounding and 

the grace period in his objection to the referee’s recommendation; Prime 

sought summary judgment on rounding; and both parties addressed these 

issues in their trial briefs (with Domingo arguing Prime could not rely on 

them, due to not pleading affirmative defenses). 

At trial, Amiatu agreed Prime had “work times to the minute” and took 

the “extra step” of rounding. She disagreed the grace period “applies only to 

a certain select area of time,” stating “[t]he grace period and the rounding 

applies to the total hours” of work, and denied Prime had a policy barring 

work during the grace period. Amiatu acknowledged the JBDev document 

was not given to employees, but said the grace period was referenced in the 

handbook and “they also cover it” in the “new hire orientation.” 

Amiatu confirmed there were 36,227 pay periods “in which a Prime 

employee worked between 8 hours[,] and 8 hours and 12 minutes,” but was

paid for 8 hours. She explained how she arrived at the 36,227 figure. If an 

employee worked at least one day in a pay period where the “grace period
42

didn’t work in his favor” (e.g., 8 hours, 3 minutes), she “counted that pay 

period” and “didn’t look at any other dates” in the period. She did not know 

how many pay periods were “instances where the employee was overpaid.” 

When asked if “Prime ever performed an analysis as to whether its employees 

[were] fully compensated pursuant to its rounding policy,” she responded, 

“Not to my knowledge.”

Amiatu also testified about a summary document she prepared, which 

showed Domingo gained 23 hours and 19 minutes from rounding between 

March 2018 and January 2019. A similar document for Granger showed he 

gained 2 hours and 8 minutes between March and June 2018. Domingo and 

Granger both had days with additional overtime minutes. Amiatu

acknowledged her summary documents did not denote regular and overtime 

minutes (i.e., in showing minutes gained or lost each day). 

Prime stopped applying the grace period in May 2021, and now 

rounded to the nearest hundredth of an hour. Amiatu said employees were 

“not happy” about losing the grace period, and she had not heard anyone say 

they were “happy to have it eliminated.” 

Quinonez testified it was routine for Domingo to clock out early, and 

her understanding was that he was “taking advantage of the grace period 

practice.” 

The trial court rejected Domingo’s affirmative defense argument, 

stating an “affirmative defense is new matter that defendants are required to 

plead and prove,” the court did “not believe” rounding or grace periods were 

affirmative defenses under this definition, and “[n]o case” holds otherwise. 

The court then said it was of “no practical legal significance,” as “whether an 

issue must be pled as an affirmative defense only has potential significance 

as to notice and the burden of proof,” and “[n]either is implicated here.” It 
43

explained Domingo had “ample notice” Prime “contended [his] claims failed 

due to rounding,” and its “findings would have been the same if [Prime] bore 

the burden of proof . . . .” 

The trial court then set forth its rulings. The court indicated it was 

following the holding in See’s Candy Shops v. Superior Court (2012) 210 

Cal.App.4th 889, 896 (See’s I) that employers can use neutral rounding 

policies, and concluded the “rounding and grace period policies, operating

together, were neutral, both facially and as applied.” It found the policies 

“did not burden employees; indeed, the reverse is true,” stating the “only 

evidence before the court” is that the practices “benefitted non-exempt 

employees.” In summarizing Quinonez’s testimony, the court had noted 

“Domingo generally timed clocking out so he could leave early—he took 

advantage of the grace period, worked it in his favor.” 

The trial court also discussed issues raised by Domingo in his request 

for the statement of decision. For example, addressing Domingo’s request 

that the court “address whether a grace period is permissible if employees are 

performing work,” the court found it was not a principal issue, and further 

stated it was not “an intelligible request considering . . . how the grace 

period” worked. The court explained it was “one step of a two-part, 

inextricably intertwined rounding process,” whereas the See’s grace period 

“applied to a particular time of the day.” 

2. Applicable Law

In See’s I, the employer calculated pay “based on . . . [timekeeping 

system] punch times, subject to adjustment under two policies: (1) the 

nearest-tenth rounding policy and (2) the grace period policy.” (See’s I, supra, 

210 Cal.App.4th at p. 892.) For the latter, employees could “voluntarily 

punch in up to 10 minutes before their scheduled start time and 10 minutes 
44

after their scheduled end time,” but were paid based on scheduled time. (Id.

at pp. 892–893.) An employee filed a class action, the trial court entered a

summary adjudication order rejecting the employer’s affirmative defenses 

regarding rounding, and, in a 2012 decision, we granted writ relief to the 

employer. (Id. at pp. 893, 899, 913–914.)

Recognizing “no California statute or case law specifically authoriz[ed]

or prohibit[ed]” rounding, we determined the “federal/DLSE standard,” which 

“allows rounding if the employees are fully compensated ‘over a period of 

time,’ ” was appropriate. (See’s I, supra, 210 Cal.App.4th at pp. 901–902, 

citing 29 C.F.R. § 785.48, subd. (b), DLSE Manual, §§ 47.1, 47.2.) We 

explained that “[a]ssuming a rounding-over-time policy is neutral, . . . the 

practice is proper under California law because its net effect is to permit 

employers to efficiently calculate hours worked without imposing any burden 

on employees.” (See’s I, at p. 903; ibid. [policies underlying federal 

regulation, which recognize rounding can be practical and neutral, “apply 

equally” to California’s “employee-protective policies”].) We concluded “an 

employer is entitled to use the nearest-tenth rounding policy if the rounding 

policy is fair and neutral on its face and ‘it is used in such a manner that it 

will not result, over a period of time, in failure to compensate the employees 

properly for all the time they have actually worked.’ ” (Id. at p. 907.)

In Silva v. See’s Candy Shops (2016) 7 Cal.App.5th 235 (See’s II), 

disapproved on other grounds in Donohue, supra, 11 Cal.5th at page 77, we 

affirmed summary judgment for the employer on the rounding and grace 

period policies. (Id. at 247–248, 252–253.)
45

3. Analysis

a. Affirmative Defenses

Domingo does not establish the trial court committed prejudicial error 

by considering Prime’s rounding and grace period policy in the absence of 

affirmative defenses.

First, Domingo does not establish error. An answer “must contain ‘[a] 

statement of any new matter constituting a defense,’ in other words, an 

affirmative defense.” (Advantec Group, Inc. v. Edwin’s Plumbing Co., Inc.

(2007) 153 Cal.App.4th 621, 627; citing Code Civ. Proc., § 431.30, subd. 

(b)(2)].) He cites no authority that rounding and grace periods must be pled 

as affirmative defenses. Instead, he argues it was undisputed Prime “did not 

list” these issues in its answer. But his complaint asserted Prime altered and 

deducted time, and he does not explain what that alteration could refer to 

besides the rounding and grace period policy, such that the policy would be 

“new matter.” Domingo also argues that “if the onus of proof is thrown upon 

the defendant, the matter to be proved by him is new matter,” citing Harris v.

City of Santa Monica (2013) 56 Cal.4th 203, 239 (Harris) and other cases on 

affirmative defenses. (E.g., Cal. Academy of Sciences v. Cnty. of Fresno (1987) 

192 Cal.App.3d 1436, 1442 [“fail[ure] to plead affirmative defenses waives 

them”].) These cases do not address rounding and grace periods, much less 

hold the defendant always has the burden on them.

Second, and regardless, Domingo does not show prejudice. (See Harris, 

supra, 56 Cal.4th at p. 240 [“a defect in a pleading that otherwise properly 

notifies a party cannot be said to affect substantial rights”; lack of affirmative 

defense did not mean trial court erred by instructing jury on the issue]; Soule 

v. General Motors Corp. (1994) 8 Cal.4th 548, 573 [judgment cannot “be 

reversed unless error cause actual prejudice”].) The trial court found
46

Domingo had “ample notice” that Prime was relying on its rounding and 

grace period policy, and the record reflects as much, including discovery 

requests and briefing by Domingo. The court also indicated its findings here

would have been the same if Prime bore the burden of proof. Domingo does 

not establish his ability to present or prove his case was impaired by the lack 

of affirmative defenses. 

b. Grace Period

Domingo argues the rounding and grace period policies were separate, 

and Prime did not establish the grace period met conditions set forth in See’s 

II. The trial court found the grace period was part of the rounding policy, the 

record supports that finding, and the See’s II grace period analysis does not 

apply. 

First, the trial court found Prime’s grace period was “one step of a twopart, inextricably intertwined rounding process.” The record supports this 

finding. As explained in the JBDev document and confirmed by Amiatu, total 

time for the day was rounded to the nearest tenth, unless it was within 12 

minutes of an hour, when it was rounded to the nearest hour. Even if these 

were separate policies, they would be separate rounding policies—not one 

rounding policy, and one grace period policy that, as in See’s, applied to 

actual, particular periods of time. (Cf. See’s II, supra, 7 Cal.App.5th at p. 237 

[grace period policy “permits employees to clock in 10 minutes before and 

after a shift, but calculates work time from the employee’s scheduled start 

and end times”].)

Second, and in turn, we reject Domingo’s argument that Prime’s grace 

period was unlawful under See’s II. There, this court affirmed summary 

judgment for the employer as to its grace period policy, where the employer
47

provided evidence that during the grace period, it barred employees from 

work and exercised no control over them. (See’s II, supra, 7 Cal.App.5th at

p. 253; ibid. [employees “could (and did) engage exclusively in personal 

activities” during this time].) Here, again, the grace period was a part of the 

rounding policy, not an actual time period in which an employee could work.

c. Rounding

During initial briefing in this appeal, Domingo asserted Prime’s 

rounding policy resulted in recorded work time being deducted. He argued 

the policy was unlawful because, among other things, it conflicted with

Donohue’s concerns about rounding in light of technological advancements 

and Troester’s concerns about full compensation. (See Donohue, supra, 11 

Cal.5th at p. 74; Troester, supra, 5 Cal.5th at pp. 835, 845.) Prime argued its 

policy was “neutral on its face and in practice worked to the benefit of 

employees” (italics omitted), and was lawful under See’s I. Prime further 

argued that “even if Domingo’s reading of Donohue was sound,” it would not 

require reversal, because Wage Order 5 uses the FLSA definition of “hours 

worked” for the health care industry and the FLSA “explicitly endorses

rounding.”

After briefing concluded, Camp v. Home Depot U.S.A., Inc. (2022) 84 

Cal.App.5th 638 (Camp) reversed summary judgment for an employer on a 

rounding claim, and “invite[d] the [California Supreme Court] to ‘decide[] the 

validity of the rounding standard articulated in See’s Candy,’ ” as applied to 

an employer that captures all minutes worked and then applies rounding. 

(Camp, supra, 84 Cal.App.5th at pp. 644, 660–661.) The California Supreme 

Court granted review in Camp. (Review granted Feb. 1, 2023, S277518.) 

Woodworth v. Loma Linda University Medical Center (2023) 93 Cal.App.5th 
48

1038 (Woodworth) subsequently reversed summary adjudication on a 

rounding claim, expressing its agreement with Camp. (Id. at pp. 1045–1046.)

At this court’s request, the parties filed supplemental briefs addressing 

the applicability of Wage Order 5’s “hours worked” definition to rounding and 

this case; the applicability of Camp and Woodworth; and the sufficiency of the 

evidence that Prime’s rounding policy was neutral as applied.

We conclude there was no substantial evidence for the trial court’s 

finding that Prime’s rounding policy was neutral in application. Accordingly, 

Domingo has established reversible error, regardless of which rounding 

standard applies (if any), and we need not resolve that issue in this appeal. 

We explain. 

Under both See’s I and federal law, an employer may use a rounding 

policy that is facially neutral and “ ‘is used in such a manner that it will not 

result, over a period of time, in failure to compensate’ ” employees for all time 

worked. (See’s I, supra, 210 Cal.App.4th at p. 907, citing 29 C.F.R. § 785.48; 

see Houston v. Saint Luke’s Health System, Inc. (8th Cir. 2023) 76 F.4th 1145, 

1152–1153 [vacating summary judgment for employer on rounding claim; 

explaining federal regulation “does not require rounding; it permits it” and 

“permission comes with conditions: chiefly, that the rounding ‘will not result’

in systematic or routine underpayment ‘over a period of time’ for work 

performed”].) In See’s, there was expert evidence for the neutrality of the

employer’s rounding policy. (See’s II, supra, 7 Cal.App.5th at pp. 249–250

[expert concluded “based on two statistical studies” that “rounding policy was 

mathematically neutral over time”]; see also, e.g., AHMC Healthcare, Inc. v. 

Super. Ct. (2018) 24 Cal.App.5th 1014, 1018, 1027–1028 [expert analysis 

reflected rounding policy was neutral over four-year period].)
49

Here, in concluding Prime’s rounding policy was neutral as applied, the 

trial court found the “only evidence before the court” was that it “benefitted 

non-exempt employees . . . .” However, Amiatu’s undisputed testimony

confirmed there were 36,227 pay periods in which employees worked up to 8 

hours 12 minutes, and were only paid for 8 hours, thus losing compensation 

(and overtime at that). Further, because she counted a pay period if minutes 

were lost on one day, there could have been more than 36,227 days in which 

employees lost compensation. Although she did conclude Domingo and 

Granger gained minutes overall (and Prime’s interrogatory responses 

reflected other pay periods in which employees would have gained minutes), 

there still was no evidence the workforce as a whole made up for the lost 

compensation over time. Not only was there no expert analysis, but Amiatu 

disclaimed knowing if Prime ever analyzed whether employees were being

fully compensated. This record negates the court’s finding that the “only 

evidence” was that the policy “benefitted . . . employees,” and undermines its 

conclusion that the policy was neutral as applied. 

Prime’s arguments do not persuade us to reach a different conclusion.

First, Prime argues the evidence regarding the 36,227 pay periods does 

not show underpayment or lack of neutrality.11 Prime states that one of 

these pay periods was a Domingo pay period in which he was overpaid,

showing it is “impossible to know” how many pay periods involved a net loss. 

But we know every one of these pay periods had at least one day with unpaid 

11 Prime notes Domingo did not focus on the 36,227 pay periods in his 

opening or reply brief. But he did contend Prime deducted work time based 

on rounding, and both parties addressed underpayment in their 

supplemental briefs. We are satisfied the issue was adequately raised and 

briefed. 
50

minutes—and, again, there was no evidence of overpayment sufficient to 

neutralize that loss. 

Second, Prime argues that Domingo and Granger’s records reflecting 

overpayment are adequate to support the trial court’s finding that the 

rounding policy was neutral as applied. Prime asserts courts “have held that 

rounding policies are neutral in application based on an analysis of the 

plaintiff’s records alone,” citing David v. Queen of Valley Medical Center

(2020) 51 Cal.App.5th 653 and Corbin v. Time Warner EntertainmentAdvance/Newhouse Partnership (9th Cir. 2016) 821 F.3d 1069. These cases 

are distinguishable. David appeared to involve only individual claims. (See 

David, at pp. 657, 664 [affirming summary judgment on plaintiff’s rounding 

claim, based on facially neutral policy and expert analysis of plaintiff’s time 

punches; no discussion of class claims or PAGA].) Corbin did not analyze

rounding-related evidence as to other employees, meaning it did not consider

a record comparable to that before us. (Corbin, at pp. 1069, 1075–1079

[affirming summary judgment on rounding claim based on plaintiff records].)

Having concluded there was no substantial evidence that Prime’s 

rounding policy was neutral as applied, we reverse the judgment to the

extent it is based on that policy. 

G. Treatment of Shift Differential In Regular Rate

Domingo contends the trial court erroneously found Prime correctly 

calculated the regular rate, with respect to shift differentials. He does not 

establish any error.

1. Additional Facts

Prime’s employee handbook has a section titled “Shift Differentials,”

which states “[n]on-exempt employees in designated positions will be 

compensated for hours worked into the evening, night or weekend shifts.”
51

Copies of wage statements for Domingo and Granger are in the record. 

Each covers a two-week pay period, and has four columns pertinent here: 

“Earning Description” (pay type; e.g. “Regular,” “Overtime,” etc.); “Rate”; 

“Hours” (listed using decimal points); and “Amount.” On some statements, 

“Evening Shift” is in the Earnings Description column; the corresponding 

Rate is $1.00, and the Amount is the product of $1.00 and the identified 

Hours. For example, Domingo’s September 28, 2018 wage statement shows

1.4 Evening Shift hours, and $1.40 in the Amount column. Similarly, 

Granger’s March 30, 2018 wage statement shows 38.6 “Evening Shift” hours, 

for an additional $38.60. 

Amiatu testified that when Prime calculates the regular rate, it

“divides the employees’ total compensation for the workweek by the total 

hours worked during the applicable workweek . . . .” It “applies a shift 

differential” if one was paid. When Domingo’s counsel asked if the shift 

differential was a “fixed amount” and a “flat sum rate of pay,” she said 

“correct” to each question. On subsequent questioning by Prime’s counsel, 

she agreed a “shift differential [is] a higher wage” and “increase[s] . . . with 

hours worked,” and denied it was “any sort of flat sum bonus.” Amiatu also 

addressed shift differentials when she testified about the attestation screen, 

which showed “any differential.” The trial court asked, “[W]eekends 

differential, they get 1.24 times their regular rate of pay . . . ?” She

responded, “Yes, multiplied to their hours.”

The trial court stated Amiatu testified, “Shift differential is a higher 

wage for weekend or night work. Increases with hours worked.” The court 

determined Domingo’s regular rate claim based on shift differentials was not 

at issue, because he did not allege it in his complaint. The court then 
52

determined that, if it were at issue, the evidence reflected Prime “calculates 

the regular rate . . . correctly . . . .” 

2. Applicable Law

“Under Labor Code section 510 and the [Industrial Welfare 

Commission] wage orders, an employee’s overtime pay rate is a multiple of 

his or her ‘regular rate of pay.’ ” (Alvarado v. Dart (2018) 4 Cal.5th 542, 561 

(Alvarado).) “[A]n employee’s ‘regular rate of pay’ . . . is not the same as the 

employee’s straight time rate (i.e., his or her normal hourly wage rate). 

Regular rate of pay, which can change from pay period to pay period, includes 

adjustments to the straight time rate, reflecting, among other things, shift 

differentials and the per-hour value of any nonhourly compensation the 

employee has earned.” (Id. at p. 554.)

In Alvarado, the California Supreme Court addressed how the regular 

rate “should be calculated when the employee has earned a flat sum bonus 

during a single pay period.” (Alvarado, supra, 4 Cal.5th at p. 549.) The 

employer there paid a “flat sum of $15 per day of weekend work” (i.e., a

“weekend attendance bonus”). (Id. at pp. 549, 570.) The Court held the flat 

sum bonus had to be divided by the “number of nonovertime hours the 

employee worked during the pay period.” (Id. at p. 549, italics omitted.) It 

“limit[ed] [its] decision to flat-sum bonuses comparable to the attendance 

bonus at issue” there. (Id. at p. 561, fn. 6; see id. at pp. 567–568 [“If a bonus 

is a reward ‘for each hour of work,’ and its amount therefore increases in 

rough proportion to the number of hours worked,” it “might be said . . . the 

bonus . . . constitutes base compensation, including base compensation for 

overtime work, in which case one might be able to argue that only the 

overtime premium need be added.”].)
53

3. Analysis

Domingo maintains he preserved his shift differential theory, Prime

admitted the differential was a flat sum, and Prime thus improperly failed to 

use nonovertime hours as the divisor, in violation of Alvarado.

First, even if Domingo preserved the shift differential theory, 

substantial evidence supports the trial court’s finding that Prime’s shift 

differential was a “higher wage,” not a flat sum. Amiatu testified the shift 

differential was a wage multiplier, and the wage statements in the record 

reflected as much. She also denied the shift differential was “any sort of flat

sum bonus.” To establish Prime’s purported admission that the shift 

differential actually was flat sum, Domingo cites Amiatu’s affirmative 

responses to his counsel’s questions about whether the shift differential was a 

“fixed amount” and a “flat sum rate of pay.” But, as discussed above, the trial 

court could credit the consistent testimony and evidence, and decline to focus 

on these limited, arguably inconsistent responses. (Daniel G., supra, 120 

Cal.App.4th at p. 830.) 

Second, because Prime’s shift differential was not a flat sum, Domingo’s 

reliance on Alvarado is misplaced. As noted, the California Supreme Court 

limited its holding to flat sum bonuses. (Alvarado, supra, 4 Cal.5th at p. 561, 

fn. 6; see Bowen v. Target (9th Cir. 2022) 2022 WL 16570815, at *1–2 [use of 

“total hours” as divisor for incorporating shift differential was not error; 

“Alvarado’s reasoning does not apply here. In contrast to flat-sum bonuses, 

shift premiums are not fixed; they are hourly payments and are proportional 

to hours worked . . . and will increase as an employee works additional 

overtime”].)
54

E. Free Parking and Badge Access Requirements

Domingo argues the trial court erred by rejecting his argument that

time spent complying with free parking and badge access rules was 

compensable. We disagree.

1. Additional Facts

Prime’s employee handbook contained policies pertaining to parking 

and security. The parking policy stated employees “must follow the parking 

area rules,” subject to being towed and/or disciplinary action. The policy 

further stated, “[i]n an attempt to build and maintain solid community 

relations, it is imperative that employees use the parking areas provided as 

opposed to parking in residential areas,” and “employees may not park in 

areas designated as outpatient, handicapped, receiving and Emergency

Department parking.” Another policy required employees to wear 

identification badges, explaining the purpose was “two-fold: (1) to clearly 

identify employees to patients, their visitors and security and (2) to identify 

employees to police, fire, and emergency personnel in the event of an 

emergency.” 

Durand Hartin, Prime’s Regional Security Manager, said Prime had

lots where employees could park. He testified the handbook statement about 

not parking on residential streets was not enforced at all, they do not patrol 

those streets, and he was unaware of citations, discipline, or towing occurring

as a result of such parking. Hartin also testified employees traveled to work 

by walking, taking the bus, carpooling, using ride-share apps, and being 

dropped off. 

With respect to facility access, Hartin explained an employee who 

parked on-site would “badge in” at the parking entry gate, by “just tak[ing] 

out [the] badge and put[ting] it in front of the reader.” The employee would 
55

badge out from the employee parking pedestrian gate. The employee then 

badged in to the “loading dock, inside the Hospital, wherever their 

department is . . . .” If an employee entered the front door during business 

hours, they would still have to wear the badge, but not place it on a reader. 

Domingo testified he drove to work, but had walked when he was new. 

He said he would badge in at a main gate, and then into the employee 

parking lot. After parking, he would badge out of the lot; walk to the 

Hospital, which took “about a minute”; and badge in. Granger similarly 

testified it took “one minute” to walk to the Hospital after parking, and said 

he would enter “from the back,” which was “close to the kitchen . . . .” 

Bennett Berger, Domingo’s expert, said that based on Prime’s “access 

granted” badge swipe records, Domingo’s initial swipe was an average of 4.13 

minutes before he clocked in, and his final swipe was an average of 5.13 

minutes after he clocked out. 

The trial court found Domingo’s “effort to demonize [Prime’s] provision

of free employee parking . . . frivolous,” and stated, “The evidence is 

overwhelming that the persons who most benefitted from the existence of 

employee parking are the employees.” The court also disagreed employees 

“were ‘working’ from the moment they first used” their identification badges. 

It found “[m]erely being required to wear an ID badge is not ‘work.’ ” The 

court distinguished the exit searches in Frlekin v. Apple Inc. (2020) 8 Cal.5th 

1038 (Frlekin), explaining that “proof of the applicability of the ‘control’ 

clause that was central” to Frlekin was not present. The court explained 

“nothing prevent[ed]” a Prime employee from “accessing the security gate, 

parking, and then walking to a coffee cart or bagel shop” before work, or 

“walking to the post office or conducting another personal errand” after work
56

(prior to returning to the parking lot). The court concluded its “findings 

render Mr. Berger’s calculations largely irrelevant.”

2. Applicable Law

As noted above, “[h]ours worked” is “the time during which an 

employee is subject to the control of an employer.” (Wage Order 5, subd. 

2(K).) An “employee who is subject to the control of an employer does not 

have to be working during that time to be compensated . . . .” (Frlekin, supra, 

8 Cal.5th at p. 1046, italics omitted, citing Morillion v. Royal Packing Co.

(2000) 22 Cal.4th 575, 585 (Morillion).)

In Morillion, the California Supreme Court held agricultural workers 

who were required to take an employer-provided bus to and from the fields 

engaged in compensable “hours worked” while riding on the bus. (Morillion, 

supra, 22 Cal.4th at p. 578.) They were subject to the employer’s control, 

because they were “foreclosed from numerous activities in which they might 

otherwise engage if they were permitted to travel to the fields by their own 

transportation.” (Id. at p. 586; compare Overton v. Walt Disney Co. (2006) 

136 Cal.App.4th 263, 271 (Overton) [distinguishing Morillion; time spent

taking optional employer-provided bus from assigned lot was not 

compensable, where employees could use alternative transport].)

In Frlekin, the Court held that time spent by Apple employees “waiting 

for and undergoing exit searches” of bags and packages was compensable. 

(Frlekin, supra, 8 Cal.5th at p. 1051.) Apple exercised control in multiple

ways: it required compliance “under threat of discipline”; “confin[ed] its

employees to the premises” during the process; and compelled “specific and 

supervised tasks” by employees. (Id. at p. 1051; ibid. [tasks included 

“locating a manager or security guard and waiting for that person to become 

available, unzipping and opening all bags and packages, moving around 
57

items within a bag or package, removing any personal Apple technology 

devices for inspection, and providing a personal technology card for device 

verification”].) Employees estimated the process took “five to 20 minutes,” up 

to 45 minutes on “the busiest days.” (Id. at p. 1053.) The Court also noted

that whether an “activity primarily benefits the employer” is a “relevant 

consideration,” and the “exit searches are imposed mainly for Apple's 

benefit.” (Id. at p. 1052.)

3. Analysis

Substantial evidence supports the trial court’s determination that 

compliance with the parking and badge access rules was not compensable.

First, ample evidence reflects Prime did not exercise control via its 

parking rules, but, rather, that free parking was intended as a benefit and 

employees could still pursue personal tasks before and after work. Parking 

was optional, as employees could walk, take public transport, or use other 

methods to get to work. (See Overton, supra, 136 Cal.App.4th at p. 271 [time 

spent taking optional employer bus was noncompensable]; compare Frlekin, 

supra, 8 Cal.5th at p. 1049 [“[b]y determining when, where, and how its 

employees must travel . . . the employer in Morillion exercised a significant 

level of control”].) Domingo himself walked when he first started at Prime. 

For those who did drive and park on site, Domingo cites no evidence that 

parking cost anything or that there were set entry or exit times—meaning, as 

the court found, employees could engage in personal tasks after parking and 

before departing for the day. That employees were not supposed to park offsite (an unenforced rule) did not, as Domingo suggests, transform the parking 

benefit into a basis for compensable time. (Cf. Rodriguez v. Taco Bell Corp

(9th Cir. 2018) 896 F.3d 952, 956–957 [employer did not exert control by 

offering discounted lunch that employees had to eat in the store].)
58

Second, we conclude the record also reflects Prime’s badge access rules 

did not result in compensable time, and disagree with Domingo that Frlekin 

is applicable. Even assuming badge access benefitted Prime, it did not 

impose any control over employees. As Hartin testified, an employee just had 

to hold the badge up to a reader—to enter gates and doors they would pass 

through anyway. In contrast, the employees in Frlekin had to engage in a 

multi-step, time-intensive security check before leaving the store that 

required locating a manager or guard, and precluded personal activities. 

(Frlekin, supra, 8 Cal.5th at p. 1043.) Further, there were multiple Hospital 

entry points (e.g., “close to the kitchen,” front entrance, etc.), facilitating 

access to different work stations. 

Domingo’s remaining arguments here lack merit.

First, he argues Prime had “accurate ‘to the minute’ time records which 

reflected all daily badge swipes,” and Berger testified about uncompensated 

time incurred by him and Granger. Berger relied on “access event” records, 

not time records, and the trial court found his calculations irrelevant because 

the time was not compensable. We agree. 

Second, on reply, he contends Huerta v. CSI Electrical Contractors, Inc.

(2022) 39 F.4th 1176, pending at the California Supreme Court on certified 

questions, presents the same factual and legal scenario as here.12 We again

disagree. Huerta involved a construction site on private land, with one 

entrance. (Id. at p. 1178.) Employees had to stop at a security gate “several 

miles down the road,” where a guard scanned badges and sometimes looked 

in vehicles, then drive “ten to fifteen” minutes to parking lots. They stopped

12 Although this new reply argument is improper (Raceway, supra, 2 

Cal.5th at p. 178), the parties addressed Huerta in connection with Domingo’s 

motion to stay pending its outcome (which we denied). We elect to address it. 
59

at the gate on exit too, and lines “were often five to [20] minutes long.” (Ibid.)

On appeal from partial summary judgment for the employer, the Ninth 

Circuit made a certification request to the Court, including as to “whether 

[the employer] exerted sufficient control” for time “related to the exit 

process,” and if the applicable wage order (16) required pay for “time spent 

driving between the entrance/exit of the employer’s premises and the location 

where the shift begins/ends.” (Id. at pp. 1181–1182.) 

Even if the California Supreme Court holds these activities are

compensable, they are plainly distinguishable from the optional parking and 

minimal badge access rules here. Again, Prime employees could travel to and 

enter the Hospital in multiple ways; those who did park had to walk “about a 

minute” to the building; and they just had to swipe a badge at gates and 

doors, not undergo a security check.

H. Wage Statements and Final Wages

Finally, Domingo contends the trial court erred in determining he did 

not establish wage statement and final wage violations. To the extent these 

claims are derivative of claims based on Prime’s rounding policy, we reverse 

the judgment in part accordingly. (See Zuniga v. Alexandria Care Center, 

LLC (2021) 67 Cal.App.5th 871, 889, fn. 10 [PAGA action; “Because we 

reverse the court’s ruling concerning those primary claims, we necessarily 

reverse this derivative ruling, as well.”].) The claims fail to the extent they 

are derivative of other violations, which he did not establish.13 His other 

arguments here also lack merit.

13 Thus, we need not and do not address the recently decided Naranjo v. 

Spectrum Security Services (2022) 13 Cal.5th 93, 101–102, which held meal 

period violations can trigger derivative liability for wage statement and final 

wage claims (and about which Domingo improperly filed a new authority 
60

1. Wage Statement 

Domingo contends Prime’s use of decimals in its wage statements did 

not reflect actual hours worked, and the trial court erred in concluding 

otherwise. 

Amiatu testified “one decimal” means “every six [minutes]”; if a wage 

statement show 40.2 hours, the “.2 is meant to represent 12 minutes”; and for 

13.5 hours, the “.5” is “30 minutes.” She agreed it did not explain “[w]hat a 

particular decimal means in terms of [a] range of minutes” (i.e., with respect 

to rounding). When Domingo was asked if he knew what “0.900” meant in 

the hours column, he said, “No.” Berger testified that of the wage statements 

he reviewed, 19 out of 34 had decimals (9 of 23 for Domingo, and 10 of 11 for 

Granger). 

The trial court found the evidence did not establish employees received 

inaccurate wage statements. It stated Domingo’s theory about Prime listing 

hours as a decimal was not in his PAGA notice or complaint. The court found 

that “in any event,” employees “can ‘promptly and easily determine’ their 

wages when ‘hours worked’ is listed as a decimal.” It further found using 

hours and minutes would “make calculating gross wages much more tedious 

and difficult to determine for employees and therefore would be contrary to 

the public policy underpinning [Section 226].” 

Even if Domingo preserved his wage statement theory, he does not 

show the trial court erred in rejecting it. 

letter with argument, and included argument on reply). Domingo also 

forfeits his assertion on reply that Prime failed to “separately list” meal 

premiums, for which he cites Naranjo; he did not raise the point in discussing 

the Naranjo Court of Appeal decision in his opening brief, and did not seek to 

file a supplemental brief to do so. (Raceway, supra, 2 Cal.5th at p. 178; 

Rincon, supra, 43 Cal.App.5th at p. 1002.)
61

Section 226 “requires an employer to supply each employee . . . a 

written wage statement” listing various items, including “total hours

worked.” (Ward v. United Airlines (2020) 9 Cal.5th 732, 743 (Ward).) “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.’ ” (Id. at p. 752.) An 

employee suffers injury under section 226 if the employer fails to provide the 

required information, and the employee “cannot promptly and easily 

determine from the wage statement” certain information, including total 

hours worked. (§ 226, subd. (e)(2)(B)(i).) “ ‘[P]romptly and easily determine’ 

means a reasonable person would be able to readily ascertain the information 

without reference to other documents or information.” (Id. at subd. (e)(2)(C).)

Domingo argued in his opening brief that Prime “admitted that it fails 

to explain what its decimals mean in terms of actual minutes worked,” citing 

Amiatu’s testimony. On reply, he belatedly argues he preserved his decimal 

theory, and suggests using decimals for “hours worked” is impermissible 

under section 226. Assuming he did not forfeit these points, they lack merit.

First, Amiatu did explain how decimals on the wage statement showed

hours and minutes worked for payroll purposes, indicating, for example, that 

“one decimal” is “six minutes” and “.2” is 12 minutes. What she

acknowledged was that the statements did not show the decimal meaning in 

terms of unrounded minutes (i.e., that “.5” could result from 27 to 32 

minutes). But Domingo cites no authority that a wage statement must 

explain rounding. As for his testimony that he did not know what “0.900” 

meant, the trial court could impliedly find it not credible. 

Second, Domingo does not establish use of decimals for “hours worked”

is unlawful. He cites section 226’s requirement that wage statement 
62

information be ascertainable without reference to other documents or 

information. But the trial court found Prime employees could determine 

their wages with the time listed in decimals, and it could be harder to 

calculate wages with separate minutes. Domingo does not show these 

findings were erroneous. (See Raines v. Coastal Pacific Food Distributors, 

Inc. (2018) 23 Cal.App.5th 667, 677 [affirming summary adjudication for 

employer, where wage statement did not list overtime rate, but did list hours 

and amount; explaining rate could be “ ‘promptly and easily’ determined by

simple arithmetic” and “no additional documents or information are 

necessary”].) 

2. Final Wages 

Finally, Domingo contends the trial court erred by rejecting his claim 

that his final wages were paid after termination. 

Domingo’s employment was terminated on January 17, 2019. A note in

his time records stated, “Timecard Approval . . . Approved on 1/18/2019.” 

Amiatu testified she was not at the Hospital on the day Domingo was 

terminated, did not recall if he was provided with a paycheck that day, and 

agreed that “in order for a paycheck to be provided, a manager should have 

approved it.” 

Quinonez testified she was at Domingo’s termination meeting, which 

was in director Kristin Holmskog’s office. Quinonez remembered bringing 

Domingo’s final paycheck to the meeting, and said Holmskog would have 

given Domingo the final paycheck. For his part, Domingo testified he was 

called to the director’s office, and was read and handed a termination letter. 

His counsel asked if he was given any other document, and he said, “I don’t 

recall . . . . I was so confused that day . . . , I don’t recall, sir.” His counsel 

then asked, “Do you recall receiving a paycheck on the day of your 
63

termination?” He said, “I don’t remember what they handed me that day. I

understand after I received a week through mail [sic].” On crossexamination, Domingo agreed he did not recall if he received his final check 

at the termination meeting. 

The trial court “did not believe” Domingo’s testimony that he “does not 

recall receiving check [and] understands he received it after a week in the 

mail.” Summarizing Quinonez’s testimony, the court stated, “Domingo got 

his final check at his termination meeting.” The court found Domingo did not 

meet his burden, explaining that “[s]aying he didn’t recall receiving it is not 

the same as saying he wasn’t paid” and the evidence did not reflect the claim 

was representative. 

Domingo does not establish the trial court’s findings were inconsistent 

with the law or record. “The prompt payment provisions of the Labor Code 

impose certain timing requirements on the payment of final wages to 

employees who are discharged . . . .” (McLean v. State of California (2016) 1 

Cal.5th 615, 619.) “If an employee is discharged, ‘the wages earned and 

unpaid at the time of discharge are due and payable immediately.’ (§ 201, 

subd. (a).)” (McLean, at p. 619.) 

Substantial evidence supports the trial court’s finding that Domingo 

received his check at his termination meeting, and, thus, did not prove Prime 

violated the final wage payment requirements in this regard. Quinonez 

testified she brought Domingo’s final paycheck to the termination meeting, 

and director Holmskog would have given it to Domingo. Domingo’s 

testimony, while equivocal, made clear he received the check at some point. 

The court could infer from this evidence that Holmskog did in fact give the 

final paycheck to Domingo at the termination meeting.
64

The other evidence at trial did not undermine this inference. Even if 

Domingo did not recall receiving the check at the termination meeting (which 

the trial court did not appear to believe), that would not prove lack of receipt. 

(Cf. Gilbert v. City of Chicago (N.D. Ill. 2019) 404 F. Supp. 3d 1215, 1219 

[“there is a difference between ‘not remembering and affirmatively stating 

something did not happen.’ ”].) As for Amiatu’s testimony that a manager

“should have” approved a check before issuance, she did not state that 

process occurred here, and did testify she was not at the Hospital the day 

Domingo was terminated and did not recall if he received his check at the 

termination meeting.

DISPOSITION

The judgment is reversed in part, to the extent it is based on Prime’s 

rounding policy and in accordance with this opinion. In all other respects, 

the judgment is affirmed. The parties shall bear their own costs on appeal.

HUFFMAN, J.

WE CONCUR:

McCONNELL, P. J.

BUCHANAN, J.