Filed 11/30/16

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

BRIAN DRISCOLL et al.,

Plaintiffs and Appellants,

 v.

GRANITE ROCK COMPANY,

Defendant and Appellant.

 H037662

 (Santa Clara County

 Super. Ct. No. 1-08-CV103426)

Graniterock is a concrete company that manufactures, delivers and pours concrete. 

Its customers include home owners, private construction contractors, and contractors on 

large public works projects, such as schools, airport runways, and roads. 

Concrete is delivered by Graniterock’s concrete mixer drivers, who assist in 

loading the concrete into the mixer trucks, delivering the concrete to customers, and 

pouring the concrete at a construction site.

Graniterock concrete drivers Brian Driscoll, Kenneth Gallardo, Donald Hopf,

Chris Nowak and Brad Storm filed this action on January 17, 2008 on behalf of a class of 

approximately 200 current and former concrete mixer drivers. Plaintiffs claim that

Graniterock failed to provide concrete mixer drivers with off-duty meal periods and 

failed to provide them with one additional hour of pay for meal periods during which the 

drivers opted to continue working.

Plaintiffs sought restitution under Business and Professions Code section 17200, 

penalties under the Private Attorney General Act (ibid.) and damages and penalties under 
2

Labor Code sections 226.7 and 512, subdivision (a). Plaintiffs’ principal claim is that 

Graniterock failed to provide off-duty meal periods and/or failed to pay plaintiffs one 

additional hour of pay for duty-free meal periods. 

The trial court granted class certification of approximately 200 concrete drivers 

employed by Graniterock on or after January 7, 2004. The court designated two 

subclasses, the first being defined as “All ready-mix concrete drivers employed by 

Granite Rock Company on or after January 17, 2004, who signed a Graniterock form 

entitled ‘On Duty’ Meal Period Agreement.” The second subclass was defined as “All 

ready-mix concrete drivers employed [sic] Granite Rock Company on or after 

January 17, 2004, who either never signed a Granite Rock form entitled ‘On Duty’ Meal 

Period Agreement or who later provided a written notice purporting to revoke the

Agreement.”

The class action was tried without a jury, and the court returned a verdict in favor 

of Graniterock. The court found that Graniterock did not violate labor laws in its meal 

period policies.

STATEMENT OF THE FACTS AND CASE

The concrete that Granitrock produces is a perishable product that cannot be 

stored. It is mixture of rock, sand and cement. When water is added to the mixture, it 

creates a chemical reaction that causes the mixture to harden. For this reason, when there 

is concrete in the drum of a mixer truck, the drum must rotate at all times to prevent 

hardening. In addition, freshly batched concrete must be poured within 60-90 minutes to 

ensure its structural integrity. One of the duties of the concrete mixer drivers is to monitor 

the rotation of the truck drum. 

Graniterock provided its concrete mixer drivers with the option of signing an onduty meal period agreement pursuant to Industrial Wage Commission (IWC) Wage Order 

No. 1, which states: “when the nature of the work prevents an employee from being 

relieved of all duty and when by written agreement between the parties an on-the-job paid 
3

meal period is agreed to.” (IWC wage order No. 1-2001, subd. 11(C).) IWC Wage 

Order 1 requires that such agreement must be revocable by the employee at any time.

(Ibid.)

The On-Duty Meal Period Agreement that was provided to and signed by 

plaintiffs provides: “I understand that I may revoke this Waiver Agreement at any time 

by providing at least one (1) working day’s advance notice to my Manager of my 

decision.” Graniterock represented at trial that one day’s notice was the shortest amount 

of time for it to process a revocation of the agreement and provide an off-duty meal 

period. 

Graniterock also advised the concrete drivers that if they did not sign an On-Duty 

Meal Period Agreement and were asked to work through a meal, they would receive one 

hour of special pay called “Code 38 Pay, in addition to any pay required by the collective 

bargaining agreements.” Code 38 pay equaled one hour of pay. 

All concrete drivers acknowledged receiving and reviewing this policy. Drivers 

were also notified of their right to a 30-minute, off-duty meal period through IWC Wage 

Order and other mandatory state and federal postings at each Graniterock branch. The 

drivers testified that they understood that they could revoke the On-Duty Meal Period

Agreement at any time. The evidence at trial showed that only three Graniterock drivers 

revoked their On-Duty Meal Period Agreement, and each of those drivers received an 

off-duty meal period and Code 38 pay. 

Prior to trial, plaintiffs brought a motion for summary adjudication of

Graniterock’s affirmative defense of the existence of the On-Duty Meal Period 

Agreement. The court found that the one-day notice provision contained in the On-Duty 

Meal Period Agreement failed to satisfy the requirement in Wage Order 1, Section 11(C) 

that the Agreement allow employees to revoke the agreement at any time. Because the 

agreement was not legally compliant in its revocation provision, the court found the 

agreement invalid as a matter of law. 
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Following trial, the Court found that “Plaintiffs failed to prove that the drivers 

were forced, expected, or trained to involuntarily sign [On-Duty Meal Period 

Agreements] or to miss off-duty meal periods against their will.” The court noted that 

“numerous drivers testified that despite signing an [On-Duty Meal Period Agreement],

they understood that they could get a meal at any time without revoking their [On-Duty 

Meal Period Agreement]. For [example], [driver] Bruce Nicholson understood he could 

ask for an off-duty meal at any time because it was in the Handbook and ‘it was told to

us.’ Kelly Sohns knew she could ask for time off without revoking her [On-Duty Meal 

Period Agreement]. Brian Sheridan testified that ‘anytime we want lunch all we have to 

do is ask for it.’ Richard Walrod knew he could have asked for lunch off on the same

day, but chose not to.’ ”

Following consideration of the evidence at trial, including the testimony of 

numerous concrete mixer drivers and dispatchers, the court concluded that plaintiffs had

not proven that Graniterock forced any driver to forgo an off-duty meal period. The court 

stated: “Graniterock has affirmatively notified its employees that they are entitled to a 30-

minute off-duty meal period free from its control through its policies, postings and 

communications. Graniterock did nothing to interfere with drivers’ ability to take an offduty meal period. Rather, drivers did not take off-duty meal periods because they did not 

want them. No one went hungry—they ate during their downtime. While dispatchers did 

not ask each employee every day whether s/he wanted an off-duty meal period, every 

driver stated that if asked s/he would say s/he did not want one. The law does not require

that the dispatchers ask each day because that would be an exercise in futility.” The court 

further found that “Plaintiffs failed to prove that the drivers were forced, expected, or 

trained to involuntarily sign [On-Duty Meal Period Agreements] or to miss off-duty meal 

periods against their will.”

The trial court entered judgment in favor of Graniterock and plaintiffs filed this 

appeal. In addition, Graniterock filed a cross-appeal of the trial court’s grant of 
5

plaintiffs’ motion for summary adjudication of Graniterock’s affirmative defense related 

to the On-Duty Meal Period Agreement. 

DISCUSSION

With regard to the primary appeal, plaintiffs argue that the trial court erred when it 

found that Graniterock provided off-duty meal periods in compliance with Labor Code1

sections 226.7 and 512, subdivision (a). 

In the cross-appeal, Graniterock argues that the trial court erred when it granted 

plaintiffs’ motion for summary adjudication of Graniterock’s affirmative defense related

to the On-Duty Meal Period Agreement. 

Plaintiffs’ Appeal

Plaintiffs raise two distinct arguments on appeal. First, plaintiffs argue as they did 

in the trial court that Granitetock failed to meet its legal obligation to provide a 30-minute 

duty-free lunch period to its concrete mixer drivers. In addition, plaintiffs assert a new 

argument on appeal that Graniterock offered illegal financial incentives to induce its 

mixer drivers to forgo their duty-free meal period in lieu of increased pay. 

Standard of Review

“The trial court’s factual findings . . . are subject to limited appellate review and 

will not be disturbed if supported by substantial evidence.” (Williams v. Saunders (1997) 

55 Cal.App.4th 1158, 1162.) “When a trial court’s factual determination is attacked on 

the ground that there is no substantial evidence to sustain it, the power of an appellate 

court begins and ends with the determination as to whether, on the entire record, there is 

substantial evidence, contradicted or uncontradicted, which will support the 

determination.” (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874, original 

emphasis omitted.) As long as there is substantial evidence, the appellate court must 

affirm, even if the reviewing justices personally would have ruled differently if they had 

 

1

 All unspecified statutory references are to the Labor Code.
6

presided over the proceedings below and even if other substantial evidence supports a 

different result. (Id. at p. 874.)

An appellate court is “not in a position to weigh any conflicts or disputes in the 

evidence. Even if different inferences can reasonably be drawn from the evidence, [the 

appellate court] may not substitute [its] own inferences or deductions for those of the trial 

court. [Its] authority begins and ends with a determination of whether, on the entire 

record, there is any substantial evidence, contradicted or uncontradicted, which will 

support the judgment. [Citations.] Therefore, we must consider all of the evidence in the 

light most favorable to the prevailing party, giving that party the benefit of every 

reasonable inference from the evidence tending to establish the correctness of the trial 

court’s decision, and resolving conflicts in support of the trial court’s decision.” (Estate 

of Beard (1999) 71 Cal.App.4th 753, 778-779.) Under the substantial evidence standard, 

the appellate court will not reweigh the evidence. That function belongs exclusively to 

the trier of fact (the trial judge in cases such as this that are tried to the court). (Shamblin 

v. Brattain (1988) 44 Cal.3d 474, 479.)

Contrary to plaintiffs’ argument, de novo review is not the proper standard in this 

case. The underlying facts were the subject of significant dispute at trial, and we must 

review this case to determine whether substantial evidence supports the trial court’s 

factual findings. (SFPP, L.P. v. Burlington Northern & Santa Fe Ry. Co. (2004) 121 

Cal.App.4th 452, 462.) 

Failure to Provide Duty-Free Meal Period

Plaintiffs argue that the judgment should be reversed because Graniterock did not 

provide its concerted mixer drivers with a 30-minute off-duty meal period as required by 

law, and Graniterock illegally induced drivers to take on-duty meal periods by providing 

them financial incentives to do so. 

California law governing wages and working conditions is embodied, to a large 

extent, in section 1171 et seq. and the regulations (wage orders) promulgated by IWC. 
7

Section 226.7, subdivision (b) states: “An employer shall not require an employee to 

work during any meal or rest . . . period mandated pursuant to an applicable. . . order of 

the Industrial Welfare Commission.” Section 512, subdivision (a) states that employers 

must provide employees with meal breaks of not less than 30 minutes if they work shifts 

of more than five hours per day and a second 30–minute meal break if they work shifts 

longer than 10 hours per day.

An employer that fails to provide an employee with a meal or rest period in 

accordance with a state law or applicable regulation or order of, inter alia, the IWC, must 

pay the employee an additional hour of pay for each workday the meal period is not 

provided. (§ 226.7, subd. (c); Murphy v. Kenneth Cole Productions, Inc. (2007) 40 

Cal.4th 1094; see IWC wage order No. 4, subd. 11(B).)

Plaintiffs argue that the trial court’s conclusion that Graniterock provided its 

concrete mixer drivers a 30-minute duty-free lunch break, and as a result, was not 

required to pay its employees an extra hour of pay as required by law, is inconsistent with

the rationale in Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004

(Brinker). In Brinker, nonexempt employees in restaurants owned by Brinker

Corporation brought a class action asserting numerous wage and hour claims. One such 

claim was related to the employer’s obligations to provide meal periods for its employees 

that complied with labor laws. In particular, the employees asserted that Brinker failed to 

provide them the meal breaks, or premium wages in lieu of meal breaks, required by law.

(See § 226.7 )

The Brinker court found that “[a]n employer’s duty with respect to meal breaks 

under both Section 512, subdivision (a) and Wage Order No. 5 is an obligation to provide 

a meal period to its employees. The employer satisfies this obligation if it relieves its 

employees of all duty, relinquishes control over their activities and permits them a 

reasonable opportunity to take an uninterrupted 30-minute break, and does not impede or 

discourage them from doing so. What will suffice may vary from industry to industry, 
8

and we cannot in the context of this class certification proceeding delineate the full range 

of approaches that in each instance might be sufficient to satisfy the law.” (Brinker, 

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

“On the other hand, the employer is not obligated to police meal breaks and ensure 

no work thereafter is performed. Bona fide relief from duty and the relinquishing of

control satisfies the employer’s obligations, and work by a relieved employee during a 

meal break does not thereby place the employer in violation of its obligations and create 

liability for premium pay under Wage Order No. 5, subdivision 11(B) and Labor Code 

section 226.7, subdivision [(c)].” (Brinker, supra, 53 Cal.4th at pp. 1040-1041.)

Plaintiffs assert that Graniterock did not provide its mixer drivers with an off-duty 

meal period, because it did not “relieve [them from] all duty and relinquish any employer 

control over [them] and how [they] spend their time.” (Brinker, 53 Cal.4th at pp. 1038-

1039.) Plaintiffs further argue that Graniterock’s policy of making an off-duty meal 

period available to its employees at their election was not enough to satisfy its legal 

obligation. 

Here, the court considered all of the evidence presented at trial and concluded that 

Graniterock provided its concrete mixer drivers with an off-duty lunch period that was 

compliant with the law. The evidence at trial demonstrated that Graniterock’s employees 

received a legally compliant Employee Handbook that contained information about the 

availability and right to a 30-minute off-duty meal period, and the concrete mixer drivers 

acknowledged that they had reviewed the policy. In addition, the evidence showed that 

Graniterock had posted the applicable Wage Order advising employees of their right to 

meal periods since 2000.

There was no evidence at trial that any mixer driver was ever denied an off-duty 

meal period when he or she requested it. The evidence showed that any concrete mixer 

driver who did not sign an On-Duty Meal Period Agreement, or revoked such agreement 

was provided one hour of pay as required by law. The court further found that because 
9

concrete mixer drivers were aware of their rights and exercised those rights in requesting 

and always receiving off-duty meals when they wanted them, Graniterock had met its

legal obligation with regard to meal periods. 

In addition to the testimony of the concrete mixer drivers regarding off-duty lunch 

requests, the court considered the testimony of Graniterock dispatchers who received 

such requests. Dispatcher Patty Carter testified that concrete mixer drivers told her that

they preferred to continue working rather than take an off-duty lunch because they 

considered the off-duty lunch as a form of “punishment.” Dispatcher Ed Yancy testified 

that concrete mixer drivers pleaded with him to instead be allowed to go home early, or 

to “help the batch man,” “help . . . in the shop,” to shovel debris, or “anything that needs 

to be done rather than take their lunch.” Dispatcher Terri Galvin testified that when she

told her concrete mixer drivers to take off-duty meals, “they [would] get angry with me.” 

Dispatcher David Fontes testified that mixer drivers would denote “no lunch” on their 

timecards with a “happy face” symbol. 

It is important to note that that Graniterock’s policies regarding meal periods are

particularly appropriate in the context of the ready mix concrete industry. As the court 

noted in Brinker, “[w]hat [off-duty meal practices that] will suffice may vary from 

industry to industry, and we cannot in the context of this class certification proceeding 

delineate the full range of approaches that in each instance might be sufficient to satisfy 

the law.” (Brinker, 53 Cal.4th at pp. 1038-1039.) We will interpret Brinker with the 

special circumstances found by the trial court. We mean by that that the issue of different 

industry practices is a factual determination. Here, while on the job, mixer drivers 

manage a rolling drum of freshly batched concrete at any given time throughout their 

work day. When a driver is able to take a duty-free lunch period is dependent on the state 

of the concrete in his or her truck, and the nature of the construction job to which the 

driver is attending. 
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The trial court noted that the nature of the concrete mixing and delivering industry 

made the scheduling of off-duty meal periods in advance nearly impossible. The law is 

clear that an employer is not required to schedule meal periods in order to comply with 

their legal meal-period obligations. (Kenny v. Supercuts, Inc. (N.D. Cal. 2008) 252 

F.R.D. 641, 646). Moreover, an employer is not required to guarantee or ensure that an 

employee take a 30-minute off-duty meal period. Rather, as set forth in Brinker, the 

employer’s duty is to provide a 30 minute off-duty lunch period that is free from an 

employer’s control. (Brinker, supra, 53 Cal.4th at pp. 1040-1041.) 

Plaintiffs argue that the trial courts’ finding that “Graniterock is only required to 

relieve from its control those drivers who elected to take an off-duty meal period”

demonstrates that it held Graniterock to a lower standard than set forth in Brinker, which 

held that in order to satisfy the requirements of section 512, subdivision (a) and Wage 

Order No. 5, an employer must “relieve[] its employees of all duty,” therefore violating

the holding of Brinker. (Brinker, supra, 53 Cal.4th at pp. 1040-1041.) However, the 

court prefaced this finding with the statement, “[w]hether an employee was provided the 

opportunity to take an off-duty meal in which the employer relinquishes all control is a 

separate issue from whether an employee who decided to work during his meal period 

and/or was under the employer’s control was paid for that time.” The court found that 

when a concrete-mixer driver requested to have an off-duty meal period, Graniterock 

granted that request, and relinquished all control of the employee for the 30-minute offduty period. This satisfies the requirement as set forth in Brinker. 

Plaintiffs argue that Graniterock’s policies actually require its employees to waive 

a minimum labor standard of an off-duty meal period. However, the trial court 

specifically found that the employees were not required to waive an unwaivable right; 

rather, mixer drivers were given the opportunity to take an off-duty meal period each day, 

and could freely choose to take or not take such meal period. Graniterock’s policy of 
11

providing an off-duty lunch period, and allowing its employees to choose to take such 

period at their discretion is consistent with the holding of Brinker. 

Illegal Financial Incentives

Plaintiffs argue for the first time on appeal that Graniterock violated labor laws by 

providing illegal financial incentives to its employees to work through their lunch period. 

Plaintiffs contend that despite the fact that it did not raise this issue at trial, it may argue it 

in this court because “the existence of [financial] incentives is essentially factual,” and 

the question of whether those incentives illegally induced mixer drivers to work through 

their lunch period is a question of law that may be considered for the first time on appeal.

Plaintiff is correct that the existence of financial incentives is factual, and that is 

precisely why we will not consider the new argument on appeal. The facts of this case, 

including the various reasons that drivers chose to work through lunch, were highly 

contested. Issues that are dependent on disputed facts may not be argued for the first 

time in the appellate court. “ ‘The rule is well settled that the theory upon which a case is 

tried must be adhered to on appeal. A party is not permitted to change his position and 

adopt a new and different theory on appeal. To permit him to do so would not only be 

unfair to the trial court, but manifestly unjust to the opposing litigant. [Citations].’ ”

(Richmond v. Dart Industries, Inc. (1987) 196 Cal.App.3d 869, 874.)

Here, plaintiffs did not argue at trial that Graniterock provided illegal financial 

incentives to induce the mixer drivers to forgo their off-duty meal period. As a result, 

Graniterock did not have notice of the issue, nor did it argue or present evidence 

specifically addressing the issue. Plaintiffs are precluded from raising this argument for 

the first time on appeal. We note that even if plaintiffs were to make this argument on 

appeal, there is no undisputed evidence in the record to support a claim that financial 

incentives were used to induce drivers to forgo an off-duty meal period. 
12

Conclusion

The trial court properly entered judgment in favor of Graniterock.2 There was 

substantial evidence presented at trial to support the trial court’s finding that Graniterock 

provided its concrete mixer drivers with an off-duty meal period as required by law.

Graniterock’s Cross-Appeal

Graniterock brings a cross-appeal of the trial court’s grant of plaintiffs’ motion for 

summary adjudication of its affirmative defense regarding the On-Duty Meal Period 

Agreement. The cross-appeal was brought for this court to consider the issue in the event 

we reversed the judgment. Because we affirm the judgment, we dismiss the cross-appeal 

as moot.

DISPOSITION

As to Plaintiffs’ appeal, the judgment is affirmed. 

Graniterock’s cross-appeal is dismissed as moot.

Costs are awarded to Graniterock.

______________________________________

RUSHING, P.J.

WE CONCUR:

____________________________________

PREMO, J.

____________________________________

ELIA, J.

 

2

 Because we find that the trial court properly found that Graniterock was not 

liable for violations of the Labor Code, we do not consider plaintiffs’ additional argument 

regarding damages.
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Trial Court: Santa Clara County Superior Court

Superior Court No.: 1-08-CV103426

Trial Judge: The Honorable James P. Kleinberg

The Honorable Joseph Huber

Attorneys for Plaintiffs and Appellant Littler Mendelson

Brian Driscoll et al.

Garry G. Mathiason

Alan S. Levins

Alison S. Hightower

Laura E. Hayward

Attorneys for Defendant Appellant Sohnen Law Offices

Granite Rock Company:

Harvey Sohnen

Patricia Kelly

Joseph Clapp