Filed 2/27/13 Elder v. Schwan Food CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

FRED ELDER,
Plaintiff and Respondent,

v.
THE SCHWAN FOOD COMPANY et al.,
Defendants and Appellants. B238876
(Los Angeles County Super. Ct. No. BC390535)

APPEAL from a judgment of the Su perior Court of Los Angeles County, John P. Shook and Steven J. Kleifield, Judges. Affirmed. Kutak Rock, Stephanie A. Hingle, Mich ael S. Kim and Alan L. Rupe for Defendants and Appellants. Righetti Glugoski, Matthew Righetti, John Glugoski and Mike Righetti for Plaintiff and Respondent.

_____________ ____________2 In Elder v. The Schwan Food Company (May 12, 2011, B22 3911) [nonpub. opn.]) ( Elder I ), the jury concluded by spec ial verdict that plaintiff Fred Elder was misclassified as an exempt employee and work ed nine hours a day, and 45 hours per week. Elder was awarded $9,944.42, in unpaid overtime wages, which was lim ited to the three-year period preceding the filing of his complaint. The trial court did not aw ard restitution for a violation of California’s unfair competiti on law (UCL) (Bus. & Prof. Code, § 17200 et seq.) 1 and denied Elder’s request for civil penalties under The Labor Code Private Attorneys General Act of 2004 (PAGA) (Lab. Code, § 2698 et seq.). ( Elder I , at [pp. 3- 4].) We remanded the matter to the trial c ourt to reconsider aw arding restitution under the UCL because the court could not disregar d the jury verdict th at the Schwan Food Company (Schwan) violated the Labor Code. 2 ( Id. at [pp. 5 -7].) We also concluded in
Elder I that the trial court had discretion to reduce the maximum amount of civil penalties awarded under PAGA, but it ha d no discretion to outright deny civil penalties. ( Id. at [pp. 9-12]. ) Following remand, the trial court awarded Elder a fourth year of unpaid overtime wages as restitution under the UCL and also awarded civil penalties. Schwan appeals, contending reversal is mandated because the company was de prived of its right to request
and obtain a statement of decisi on as the trial court never announced a tentative decision before ruling on the matter. Schwan also contends the trial court disregarded the company’s equitable defense under the errone ous belief that it was bound by the law of the case doctrine to accept the procedural recitation in Elder I , in which we stated that the jury had rejected the compan y’s defense to the overtime claim that Elder was properly classified as an exempt employee. We affirm.

1 Business and Professions Code secti on 17208 provides that “[a]ny action to enforce any cause of action pursuant to this chapter shall be co mmenced within four years after the cause of action accrued.”

2 A business act or practice that violates the Labor Code through failure to pay wages is an unfair business practice. ( Cortez v. Purolator Air Filtration Products Co. (2000) 23 Cal.4th 163, 178-179.)3 FACTUAL AND PROCEDUR AL BACKGROUND
1. Schwan Misclassified Elder as an Exempt Employee
In Elder I , the jury made findings by special verdict that Elder was not exempt from overtime wages under the outside salesp erson exemption to the overtime laws, despite testimony from Schwan representati ves that they believed Elder was exempt. 3 An outside salesperson is defined as any person “who customar ily and regularly works more than half the working time aw ay from the employer’s place of business selling tangible or intangible items or obtaining or ders or contracts for products, services or use of facilities.” (Cal. Code Regs., tit. 8, § 11070, subd. (2)(J).)

a. Elder’s Job Duties Elder was a customer sales representa tive for Schwan, supplying frozen Red Baron pizzas to local grocery stores. He testified regardi ng his job duties: “We presold orders within the 48-hour peri od. So you would go into a store and you would write an order and then transmit it – But when you firs t went into the grocery store, you would work the product. You didn’t know if you ne eded a case of pizza or not on the shelf. So you work it, push it back. And if you needed it, you would go into the back room. If you had that item, you would bring it back in and merchandise it on the shelf. [¶] And then when everything was done, yo u could write an accurate or der and then communicate that to the freezer person what yo u were bringing in in [ sic ] two days, whenever the truck was going to come. [¶] If we had sales promotio ns, if we were going to be on the display planner, so there was a planner set forth by the company. So, for instance, March food madness would be potentially the first week in March. We may have Red Baron on sale
at Albertsons. So we would have a planner set up where we should have door number 1 or door number 2 for our space. So we wo uld bring in th e product and fill the shelf and for that space.”

3 Labor Code section 1171 expressly ex cludes “any individual employed as an outside salesman” from the overtime laws. (Lab. Code, § 1171; Ramirez v. Yosemite Water Co. (1999) 20 Cal.4th 785, 789.)4 Schwan also employed “mer chandisers,” whose job duties were to put the product
on the shelf. Elder testified that he ha d merchandiser suppor t, depending upon his assigned route. Schwan’s regional sales manager, Daniel Ro well, testified that he did not believe “merchandising product per se” is a sales ta sk. He explained: “[W]hile you are merchandising product, you can perform sales ta sks. [¶] You talk to the frozen food person while you are putting up product. You lo ok to the left and to the right to see if there is opportunity to gain an incremental facing. So th ere is opportunity even while merchandising. [¶] Rotating pr oduct, certainly that would not be a sales task. [¶] Managing damaged product woul dn’t be a sales task.” As Rowell further explained, stocking shelves could involve making a sales presentation. “You are presenting a billboard effect. You’re merchandising so that when you are done, you step back and you look at it and there are six Red Baron faceup, and it
looks like a billboard to the consumer as they walk by. So that is what I mean.” Rowell believed that based upon Elder’s j ob description, Elder spent the majority of his time engaged in sales. Rowell also testified that he me t with an attorn ey to ensure that Elder and similarly situated California em ployees were properly classified as exempt employees.
b. Jury Rejects Outside Sa lesperson Exemption By special verdict, the ju ry answered “no” to the following three questions: “1. Did Plaintiff Elder spend more than 50% of his time engaged in outside sales? “2. If you find Plaintiff Elder did not spen d more than 50% of his time engaged in outside sales, do you find that Plaintiff Elder was involved principally in the sale of a product or service?
“3. Was more than 50% of Plainti ff Elder’s compensation comprised of commission wages?” The jury also made a finding that Elder wo rked nine hours a day and 45 hours per week. Based upon these findings, the tria l court calculated the amount of overtime pay5 owed to Elder on his legal claims. Elder received $9,944.42 in overtime pay, plus prejudgment interest in the amount of $3 ,286.60, and post-judgment interest. Schwan persuaded the trial court that El der was not entitled to restitution or civil penalties. Elder appealed.
2. Elder I
In Elder I , we remanded the matter to the tria l court to reconsider the equitable remedy under the UCL, and to determine th e appropriate civil penalties under PAGA. We concluded the trial court was bound by the jury’s findings that Elder had been misclassified as an exempt employee in vi olation of California’ s overtime laws, and
Elder had established that he had worked overtime for which he had not received overtime wages. ( Elder I
, supra , B223911, at [p. 5].) We quoted Cortez v. Puralator Air
Filtration Products Co.
, supra , 23 Cal.4th at page 181, where the Supreme Court stated, “ ‘while we cannot foresee how any equitabl e consideration could defeat a claim for unpaid wages, we cannot foreclose the possibi lity that defendant has evidence that the trial court might consider relevant when, on remand, it fashions a remedy for plaintiff’s unfair business practice.’ ” ( Elder I , at [p. 6].)
We also concluded the tria l court did not have discre tion to forgo imposing any civil penalties under PAGA, but the court could ex ercise its discretion to impose less than the maximum amount. ( Elder I
, supra , B223911, at [pp. 9-12].) Although Schwan did not raise the issue in a petition for rehearing, the company points out what it perceives as procedural error in Elder I , that is, our statement that the jury considered and rejected the company’s equitable defe nse by finding that Elder was nonexempt. ( Elder I
, supra , B223911, at [p. 7].) Schwan relied on evidence presented to the jury to persuade the cour t not to award restitution under the UCL. Nevertheless, our
decision in Elder I specifically directed the trial c ourt to reconsider the company’s
evidence and to balance the e quities when fashioning a reme dy for Schwan’s violation of
the UCL. There is no indication in the reco rd that the trial court did not follow this
directive.6 3. Remand Following Elder I On remand, Schwan again asked the trial c ourt not to award restitution for a fourth year of overtime compensation. Relying on the evidence pr esented to the jury, Schwan contended it had a good faith belief that Elde r was exempt from overtime. Schwan also presented argument that while it would be unjust to retain a benefit (overtime wages) rightfully belonging to Elder, this case pres ented a number of unique circumstances that required the court to balance the equities in the company’s favor. First, Schwan argued that it “has for years attempted to give Plaint iff his benefit back,” but Elder opted out of a class action in which Schwan paid employees more than five hours per week in unpaid overtime compensation. Second, Elder purs ued numerous claims against Schwan, and the jury rejected most of th em, including Elder’s claim that he was entitled to 15 hours of unpaid overtime wages per week. Third, only Elder’s counsel would benefit because “the fourth year of overtime compensation” wo uld exceed the offer to compromise made pursuant to Code of Civil Procedure section 998, 4 entitling Elder’s atto rneys to hundreds of thousands of dollars in attorney fees. Fourth, Elder never asked for overtime wages while employed by Schwan and waited nearly five years to put the company on notice
that he should have b een paid overtime. In sum, Schwan argued that “[b]ut for Plaintiff’s dela y in asserting his rights to overtime and his unreasonable expectations ab out the value of his claim which caused him to opt out of Wastier [class action lawsuit], this matter never would have lingered in Court for over three years. Plaintiff is not entitled to a fourth year of overtime wages, particularly to the extent the pre-judgment interest on those wages bolster Plaintiff’s
claim to exceed Schwan’s o ffer to compromise.” While presenting argument to the trial c ourt, Schwan’s counse l argued that in
Elder I we held the court erred because it could not award “nothing for that year,” and the Court of Appeal “remanded it to you to de termine what amount should be entered.” Continuing, counsel read into our opinion in Elder I that “if the Court of Appeals [ sic ]

4 Undesignated statutory references ar e to the Code of Civil Procedure.7 had wanted a full year, they would have ente red judgment for that year. Instead, they returned it to you to balance the equities.” 5 With respect to the civil penalties, El der sought the maximum amount. Schwan countered that the company’s good faith designation of Elde r as an exempt employee was not a serious transgression of the Labor Code.
4. Ruling, Judgment, and Appeal On October 24, 2011, after taking the ma tter under submission, the trial court issued a ruling on the submitted matter, which was entered in the court’s minutes and mailed to the parties (October order). Th e trial court awarded Elder an additional $3,878.62 as restitution for the UCL violati on, bringing the total awarded for unpaid overtime wages to $13,823.04. The court al so awarded $2,500 in civil penalties. The
October order stated: “Plaintiff to file and serve a proposed judgment.” On December 6, 2011, the trial court sign ed the judgment that incorporated the language from the October orde r. Schwan timely appealed. On appeal, Schwan contends the judgment must be reversed because the trial court (1) deprived the company of its right to request a statemen t of decision by not issuing a tentative decision, (2) improperly relied on th e law of the case doctrine by accepting as true an erroneous recitation of the procedural history in Elder I , and (3) abused its discretion by awarding restitu tion and civil penalties and ig noring the “abundance of evidence,” showing the company’s good faith belief that El der was an exempt employee.
We discuss each contention in turn.

5 At the conclusion of the argument, the tria l court stated: “We ll, I think one point of probable agreement between the parties is that the appellate opinion is the law of the case.” In ruling on the submitted matter, the tria l court did not refer to the law of the case doctrine. Schwan may not use the trial cour t’s ambiguous and contemporaneous remarks, whether oral or written, to imp each its final judgment. (9 W itkin, Cal. Procedure (5th ed. 2008) Appeal, § 350, pp. 402-403, citing Patarak v. Williams (2001) 91 Cal.App.4th 826, 830.)8 DISCUSSION
1. The Failure to Prepare a Statement of Decision Is Not Reversible Error Schwan contends it was deprived of its ri ght to a statement of decision because the
trial court did not issue a tentative decisi on that triggered the company’s statutory obligation to request a statement of decision. (§ 632.) Section 632 states: “In superior courts, upon the trial of a question of fact by the court, written findings of fact and conclusions of law shall not be required. The court shall issue a statement of decision explaining the factual and legal basis for it s decision as to each of the principal controverted issues at trial upon the request of any party appearing at trial.” When a party “requests a statement of decision, it must be prepared, and the failure to do so is reversible error. [Citations.]” ( Whittington v. McKinney (1991) 234 Cal.App.3d 123, 127.) Section 632 must be read in conjunc tion with California Rules of Court, rule 3.1590, which governs the procedure for issuance of a statement of decision. “On the trial of a question of fact by the court, the court must announce its tentative decision by an oral statement, entered in the minutes , or by a written statement filed with the clerk.” (Cal. Rules of Court, rule 3.1590(a).) The rules require that the trial court
announce an intend ed decision rather than making a final order or judgment to give a party an opportunity to request a statem ent of decision to address the principal controverted issues. ( Id ., (d).) Assuming the trial court’s resolution of wh ether to award restitu tion for a violation of the UCL constituted “disputed issues of fact ,” the trial court had to issue a tentative decision. (Cal. Rules of Court, rule 3.1590 (a).) The October order filed with the court clerk satisfies the requirements in the rule s, and Schwan should have requested a statement of decision within the statutory tim e frame. Contrary to Schwan’s contention, rule 3.1590(a) of the California Rules of C ourt does not require that the court label its written order a “tentative decision,” or requi re that the tentative decision contain the provisions set forth in California Rules of Cour t, rule 3.1590(c). These provisions are not9 mandatory. 6 (Cal. Rules of Court, rule 3.1590(c).) Moreover, neither rule 3.1590 of the
California Rules of Court nor se ction 632 require that a party must wait until the trial
court announces its tentative decision to request a statement of decision. Citing Sweat v. Hollister (1995) 37 Cal.App.4th 60 3, 614, disapproved on other grounds in Santisas v. Goodin (1998) 17 Cal.4th 599, 609, fo otnote 5, Schwan contends that the phraseology of the October order, incl uding the use of the present tense instead of the conditional tense, indicates the trial c ourt’s order was determinative and final. Sweat
v. Hollister is inapposite.
In Sweat v. Hollister , the plaintiffs challenged the trial court’s order awarding attorney fees to the prevailing defendants beca use the plaintiffs dismissed the action after the court issued a telephonic ruling gran ting summary judgment but before oral argument. ( Sweat v. Hollister
, supra , 37 Cal.App.4th at pp. 61 0-612.) The question of
whether the defendants were entitled to atto rney fees turned on determining if the telephonic ruling was final when the pl aintiffs filed their dismissal. ( Id . at p. 613.) Reviewing the order, the appellate court determ ined the phraseology of the ruling as set
forth in the minute order was fi nal and nothing in that order contemplated the preparation of a subsequent judgment. The Sweat court also noted that the trial court was “familiar
with the difference between tentative and fi nal decisions,” “its telephonic order was intended to be final,” and oral argument “was simp ly to stay the im position of the order pending oral argument.” ( Id . at p. 614.) Thus, the cancellation of the oral argument by virtue of the dismissal, vacated the stay, not the trial court’s decision. ( Ibid. ) Unlike the telephonic order in Sweat v. Hollister
, supra , 37 Cal.App.4th 603, the October order was not a final judgment. The October order indicated which party should

6 California Rules of Court, rule 3.1590(c ) states: “The court in its tentative decision may: [¶] (1) State that it is the cour t’s proposed statement of decision, subject to a party’s objection under (g); [¶] (2) Indicate that the court will pr epare a statement of decision; [¶] (3) Order a party to prepare a st atement of decision; or [¶] (4) Direct that the tentative decision will become the statemen t of decision unless, within 10 days after announcement or service of the tentative de cision, a party specifies those principal controverted issues as to which the party is requesting a statement of decision or makes proposals not included in the tentative decision.”10 prevail, setting out the court’s opinion abou t how the judgment ev entually should be entered, and requested that Elder prepar e a proposed judgment. Until judgment was entered, the October order was not binding on the court. (Cal. Rules of Court, rule 3.1590(b) [“The tentative decision does not constitute a judgment and is not binding on the court.”].)
While Schwan maintains the October or der was not a tentative decision, the company failed to bring to the trial court’s attention that under rule 3.1590(a) of the California Rules of Court, the court had to an nounce its tentative decision. If Schwan did
not consider the October order a tentative deci sion, it could have asked the trial court to cure what it now perceives as a reversible pr ocedural error before the court signed the judgment. Schwan made no a ttempt to do so after receivi ng the October order or during the six-week period before the court signed the judgment. Schwan also made no request for a statement of decision at any time during the trial court proceedings and raised this issue for the first time on appeal. Under these circumstances, there is no reversible error.
2. The Trial Court Did Not Erroneously Ap ply the Law of the Case Doctrine
Schwan contends the trial court erred be cause the decision to award restitution is based upon the erroneous belief that our procedural recitation in Elder I was “law of the case.” Thus, according to Schwan, the tria l court did not consider the company’s equitable defense or balance the equities before awarding Elder restitution for the company’s UCL violation. The record and law does not support this argument. Law of the case only applies to questions of law not the procedural history of a
case. “ ‘The law of the case doctrine states th at when, in deciding an appeal, an appellate court “states in its opinion a principle or ru le of law necessary to the decision, that principle or rule becomes the law of the ca se and must be adhered to throughout its subsequent progress, both in the lower co urt and upon subsequent appeal.” ’ ” ( ABF Capital Corp. v. Grove Properties Co. (2005) 126 Cal.App.4th 204, 212.)
In Elder I , we remanded and directed the trial court to balance the equities before deciding a remedy for the company’s UCL violation. As Schwan’s counsel argued in the trial court following remand, we did not direct the trial court to award a fourth year of11 unpaid overtime wages to Elde r, nor did we suggest to th e trial court that it should disregard any equitable defenses. Because the jury rende red its verdict before the trial court considered the UCL claim, we noted in Elder I that the jury reje cted the company’s defense that Elder was properly cla ssified as an exempt employee. ( Elder I
, supra , B223911, at [p. 7].) Our decision in Elder I , however, was clear that the trial court had to balance the equities before awarding an equitable remedy. On remand, Schwan’s counsel argued that the balance of equities favored the company. Schwan relied on, and cited to, evidence presented duri ng trial, including Rowell’s testimony, which the jury rejected. In addition, Schwan presented several arguments that it would be unjust to permit Elder to recover a fourth year of unpaid overtime wages.
The record indicates that the trial court considered the briefs (which included citation to the evidence presented at tria l) and Schwan’s arguments. There is no
indication that the trial court disregarded our directions in Elder I . During oral argument, the trial court read the following from Elder I : “We remand for the trial court to reconsider the remedy and balance the equities. . . . [¶] In doing so, the trial court must not overlook the jury’s verdict. The strong public policy di rected at the enforcement of California’s overtime laws and for purposes of the U.C.L., as between the person enriched and the person harmed, it would be unjust for the company to retain the benefit.” Schwan has made no affirmative showing of error.
3. Schwan Has Failed to Meet Its Burden to Demonstrate Prejudicial Error
Schwan contends that the trial court di sregarded its equitable defense, ignoring evidence supporting a reduction of both restitution and the civil penalties awarded to
Elder. Schwan overlooks that the trial court exercised its discretion to reduce the amount of civil penalties requested. 7 (Lab. Code, § 2699, subd. (e)(2).)

7 Schwan’s attempt to distinguish the facts in Amaral v. Cintas Corp. No. 2 (2008) 163 Cal.App.4th 1157, 1213-1214, is unpersua sive. In making this argument, Schwan asks this court to consider th e evidence anew. On review, the trial court’s assessment and reduction of the requested civil penalties was not an abuse of discretion. Moreover,12 Schwan’s contention is really an argument about the sufficiency of the evidence to support its equitable defense, and the insu fficiency of the evid ence to support the judgment. We begin with the presumption that the record contains evidence to support the judgment. ( Grassilli v. Barr (2006) 142 Cal.App.4th 1260, 1278.) On appeal, we do not weigh conflicts and disputes in the evid ence. Our review begins and ends with a determination as to whether there is any s ubstantial evidence contradicted or not, in support of the judgment. ( Id . at p. 1277.) Other than asking this court to substitute its discretion for that of the trial court,
Schwan has failed to show the evidence does not suppor t the judgment. There was
sufficient evidence in th e record to award restitution and to assess civil penalties for a
violation of California’s overtime laws. Thus, there was no prejudicial error.

Schwan has presented no reasoned argument (o ther than its view that Elder should not have independently pursued this claim) or au thorities that the civil penalty the trial court imposed was unjust, arbitrary and oppressive, or confiscatory.13 DISPOSITION The judgment is affirmed. El der is entitled to costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

KLEIN, P. J.

KITCHING, J.