Filed 5/3/17 Unmodified opinion attached

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

GARY BATZE et al.,

Plaintiffs and Appellants,

v.

SAFEWAY, INC., et al.,

Defendants and Respondents.

 B258732

 (Los Angeles County

 Super. Ct. Nos. BC348090 &

 BC399811)

 

 ORDER MODIFYING

 OPINION AND DENYING

 PETITION FOR

 REHEARING [NO CHANGE

 IN JUDGMENT]

THE COURT*

It is ordered that the opinion filed April 4, 2017 be 

modified on page 74, lines 13 to 17 as follows, delete: 

“Section 541.706 of title 29 of the Code of Federal 

Regulations (formerly 29 C.F.R. § 541.109) (2004) provides 
2

that ‘[a]n exempt employee will not lose the exemption by 

performing work of a normally nonexempt nature because of 

the existence of an emergency.’” and substitute the following 

in its place: 

“As discussed, the pertinent Wage Order (No. 7-2001) 

provides that activities constituting exempt work and nonexempt work are to be construed in the same manner as 

such activities are construed in certain regulations under the 

Fair Labor Standards Act, effective as of 2001, including 

former section 541.109 of title 29 of the Code of Federal 

Regulations, the regulation formerly governing work during 

‘[e]mergencies.’ In 2001, section 541.109 provided that 

‘[u]nder certain occasional emergency conditions, work which 

is normally performed by nonexempt employees and is 

nonexempt in nature will be directly and closely related to 

the performance of the exempt function of management and 

supervision and will therefore be exempt work’ and that ‘a 

bona fide executive who performs work of a normally 

nonexempt nature on rare occasions because of the existence 

of a real emergency will not, because of the performance of 

such emergency work, lose the exemption.’ The current 

federal regulation governing emergency work, section 

541.706 of title 29 of the Code of Federal Regulations 

(enacted in 2004), similarly provides: ‘An exempt employee 

will not lose the exemption because of the existence of an 

emergency.’” 
3

The petition for rehearing is denied. The modification does 

not change the judgement.

____________________________________________________

EPSTEIN, P. J., WILLHITE, J. MANELLA, J.,
Filed 4/4/17 Unmodified opinion

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

GARY BATZE et al.,

Plaintiffs and Appellants,

v.

SAFEWAY, INC., et al.,

Defendants and Respondents. 

 B258732

 (Los Angeles County

 Super. Ct. Nos. BC348090 &

 BC399811)

 

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Anthony J. Mohr, Judge. Affirmed.

Daniels, Fine, Israel, Schonbuch & Lebovits, Paul R. 

Fine, Scott A. Brooks and Craig S. Momita; Law Offices of 

Ian Herzog and Ian Herzog; Law Offices of Stephen Glick 

and Stephen Glick for Plaintiffs and Appellants.

Littler Mendelson, J. Kevin Lilly, R. Brian Dixon and 

Philip L. Ross for Defendants and Respondents.
2

Appellants Gary Batze, Carlo Cesar and Justin Hayes 

brought suit against their employer, Safeway, Inc. and The 

Vons Companies, Inc. for failure to pay overtime wages.1 

Appellants claimed that in their positions as First and 

Second Assistant Managers (AMs) for respondent’s stores 

they had been required to work long hours performing such 

non-managerial tasks as stocking shelves, checking 

customers’ purchases and building product displays. After 

weeks of trial and the testimony of dozens of witnesses, the 

trial court ruled, for the most part, in respondent’s favor, 

finding that appellants were engaged for more than 50 

percent of their work week in managerial tasks, and that 

they met all the other qualifications to be exempt from the 

overtime rules. The court also ruled that during the fivemonth period when Batze and Hayes replaced striking 

hourly workers, they continued to be exempt employees. 

Finally, the court ruled that only those claims arising within 

the four years preceding appellants’ respective complaints 

were cognizable, and declined to apply equitable tolling to 

relate their claims back to the filing of a proposed class 

action for which certification had been denied.

Appellants contend the court’s findings that they spent 

the majority of their time at work engaged in managerial 

 

1 As Safeway and Vons are affiliated, the parties drew no 

distinctions between employees who worked at Safeway stores 

and those who worked at Vons stores, and the defendants were 

jointly referred to below as “Safeway,” the two companies will 

jointly be referred to as “respondent.” 
3

activities during the four-year period at issue was not 

supported by substantial evidence. Specifically, they 

contend that an employee’s ratio of exempt to non-exempt 

activities must be determined on a week-by-week basis, that 

no inferences may be drawn from the employee’s activities in 

surrounding weeks, and that because the employer bears the 

burden of proof, for any specific week in which no defense 

witness observed appellants’ actions at work the court 

should have found in appellants’ favor. We reject that 

contention and conclude the court drew reasonable 

inferences from the witnesses’ testimony and other evidence 

that established how appellants spent the majority of their 

time. 

Appellants also contend the court improperly found 

that the strike period constituted an emergency that 

permitted respondent to assign managerial employees to 

non-exempt tasks without losing their exempt status. We 

affirm the court’s decision. 

Finally, appellants contend the trial court erred in 

ruling that the statute of limitations precluded them from 

raising claims based on periods of employment more than 

four years prior to the filing of each of their complaints. We 

conclude the trial court reasonably found that the filing of 

the class action did not toll the statute of limitations. 
4

FACTUAL AND PROCEDURAL BACKGROUND

A. Background Facts

In July 2002, a putative class action was filed by Peter 

Knoch and Jason Ritchey (the Knoch action) on behalf of all 

store managers and AMs employed by respondent. The 

claims included failure to pay overtime wages and violation 

of the unfair competition law (Bus. & Prof. Code, § 17200 et 

seq., UCL).2 The motion for class certification was filed in 

November 2006. Class certification was denied in July 2007; 

the order denying certification was entered in September 

2008. 

Appellant Gary Batze, who had been a Second AM for 

respondent, filed his complaint for unpaid wages in February 

2006. Appellants Carlo Cesar and Justin Hayes, who had 

been First AMs, filed their complaints in October 2008.3 

Multiple other managerial employees filed related claims 

against respondent in 2005 and 2006. Appellants’ claims 

were selected to be tried together. 

 

2 Because the statute of limitations for a UCL claim is four 

years, the wage claims proceeded under that act; all other claims 

were abandoned. (See Pineda v. Bank of America, N.A. (2010) 50 

Cal.4th 1389, 1401 [plaintiff may seek restitution of unpaid 

overtime wages via the UCL].)

3 Both the First AM and Second AM were salaried positions 

for which respondent did not pay overtime for working more than 

eight hours a day or more than 40 hours a week. 
5

B. Evidence at Trial4

1. Evidence Pertinent to Batze

a. Plaintiffs’ Evidence

Batze worked for respondents from June 1987 through 

August 2006. In August 1998, he was promoted to a salaried 

managerial position at the Blackstone store.5 Between 2000 

and 2006, he worked at the Clovis store, with a stint at 

Bakersfield and Lake Isabella stores during the five-month 

strike by union employees in 2003 and 2004. Throughout his 

tenure as a salaried employee, he was assigned to the 

night/early morning shift (4:00 a.m. to noon or 1:00 p.m.), 

and testified that he regularly worked 50 to 60 hours per 

week. 

According to Batze, his primary duty was building and 

filling merchandise displays. He was given specifications as 

to the design of the displays, where they were to be placed in 

the store, and the merchandise to include, exercising little or 

no discretion. When products requiring display arrived, he 

might spend up to 12 hours in a single day moving pallets of 

products from the back room to the floor, physically tearing 

 

4 Due to the fact-specific nature of each appellant’s work and 

its relationship to the caterorization of such work as exempt or 

non-exempt, we examine the evidence in some detail.

5 Batze testified that he was first given the title grocery 

manager and then Second AM, but that both positions involved 

essentially the same work. The court ruled that any claims 

arising from the period Batze worked at the Blackstone store 

were time-barred. 
6

down the old displays and putting up the new ones. He also 

stocked shelves and was responsible for keeping the back 

room organized, which required him to personally move and 

stack pallets and merchandise some of the time. Although 

Batze was the sole managerial employee at the store during 

the late night hours and was titularly in charge, the night 

crew boss normally oversaw the hourly employees. Because 

few of his working hours took place when the store was open, 

he had little opportunity to supervise the clerks as they 

served customers. Batze estimated he spent 90 to 95 percent 

of his time as a Second AM “doing physical manual work.” 

Throughout the time Batze and the other appellants 

were employed by respondent, the stores were required to 

adhere to an “operating ratio” of sales to employee salary.6 

In Batze’s experience, meeting the operating ratio required 

salaried employees to perform the jobs of hourly workers 

because salaried employees could work overtime without 

causing the store to incur additional labor costs. 

During the Southern California grocery clerks’ strike 

that took place from October 2003 to the beginning of March 

2004, Batze claimed to have worked at stores in Bakersfield 

and Lake Isabella for 14 to 16 hours a day for two or three 

weeks without a day off. He did everything the striking 

 

6 The operating ratio was the number of labor hours 

budgeted to a store based on the store’s sales. If a store 

repeatedly failed to meet the operating ratio, the manager would 

be disciplined. 
7

hourly employees would have done, except checking. He 

denied having responsibility for training the employees 

brought in to replace the striking workers.7 

As a Second AM, Batze had no discretion over pricing, 

hours of operation, employee salary, the dress code, or the 

design and layout of stores. Batze was never enrolled in 

respondent’s Retail Leadership Development (RLD)

program.8 Batze did not deny that he performed some 

managerial tasks, including writing employee appraisals and 

preparing the work schedule for the night crew, but 

estimated he spent only a couple of hours a year writing 

appraisals and only 10 to 15 minutes a week writing the 

schedule. He acknowledged that he had discretion over the 

displays in “one [or] two” locations in the store, that he could 

add products he believed tied in to displays, and that at least 

some of the displays were built by vendors, under his 

supervision. Batze also was responsible for minimizing “outof-stocks” (products carried by the store that sold out, 

leaving empty shelves) and for placing orders for the grocery 

department, which comprised the bulk of the store. 

Managing out-of-stocks required him to walk the aisles to 

 

7 On cross-examination, Batze was shown his handwritten 

calendar, indicating that from January to March 2004, he was 

working his regular hours. Cash register data showed him 

working at his regular store (Clovis). Batze claimed the calendar 

did not necessarily reflect the hours he worked. 

8 The RLD program was respondent’s program to train 

managerial employees and is discussed further, infra.
8

see whether the store was low on any product, scan bar codes 

to trigger the warehouse to send more product, confirm that 

deliveries had come in, and work with the night crew to get 

products from the pallets on which they were delivered to 

the shelves. He used his discretion in taking tags off the 

shelves when he knew or believed the warehouse was out of 

the described products. 

Batze called fellow employees, current and former, to 

support his claim. Thomas Moore, a store manager who 

worked with Batze from 1998 to 2000, testified Batze 

primarily built displays and stocked shelves, and that these 

were typical tasks for Second AMs during Moore’s tenure 

with respondent (1967 to 2007). Debbie Lucio, a former 

Second AM who worked for respondent from 1990 to 2006, 

observed Batze building displays and working long hours 

when he was a Second AM. James Saubert worked with 

Batze at the Clovis store. From his observations, Batze 

appeared to be spending the majority of his time -- 90 

percent, according to Saubert -- building displays and 

stocking shelves. Saubert also observed Batze engaged in 

managerial tasks, such as talking to the receiver about 

organizing the back room and talking to the dairy manager 

about the status of orders. Tammy Baldridge worked with 

Batze from 1999 to 2006. She primarily observed him 

building displays. She took over the Second AM position 

when Batze left. She spent a significant part of her shifts 

“throw[ing] loads” (organizing products delivered to the back 

room) and building displays. Tom Dunehew worked as a 
9

Second AM for 12 years, and held that position at the Clovis 

store after Batze and Baldridge left. Dunehew testified that 

as a Second AM, he primarily built and filled displays and 

stocked shelves. Staci Dack worked with Batze at Clovis for 

six years. She recalled that Batze was at work before she

arrived for her eight-hour shift and remained there after she 

left. She primarily observed him building displays or 

helping the night crew stock shelves. 

2. Defense Evidence

Michelle Macaluso was the store manager who 

supervised Batze at the Clovis store from January 2004 to 

August 2006, when Batze left respondent’s employ. The 

Clovis store was very large and busy. There were 115 to 125 

employees, and weekly sales were approximately $600,000. 

It was open from 6:00 a.m. to midnight. Macaluso worked 

from 6:00 or 7:00 a.m. to 5:30 p.m., Monday through 

Wednesday, and Friday and Saturday, 48 to 50 hours per 

week. Batze, who started at 4:00 a.m., generally left on time 

at noon or 1:00 p.m., or if he worked late one day, left early 

another. 

Macaluso testified Batze was responsible for 

“merchandising,” making sure displays were built at the 

correct place in the store and filled. Batze had some 

discretion concerning where to place displays and how large 

they would be. He could create a theme for a display, such 

as a holiday theme, and could add items he believed were 

tied in to the products he was required to include. There 
10

were 40 to 45 displays in the store; some changed weekly or 

monthly, but others were permanent. Batze built four to six 

displays per week. He had the assistance of the “GM”

manager, an hourly position, when he built them. Vendors 

were responsible for many of the displays, and Batze 

coordinated with 20 to 25 vendors per week concerning their 

displays and where to place them. Because the Clovis store 

was so large, Batze had discretion to give vendors additional 

display space. Macaluso disputed that Batze could have 

spent 90 percent of his time building displays because they 

were built only Mondays through Wednesdays. 

Batze supervised the ten employees, (including four 

clerks, two night crew supervisors, a receiver, and a scan 

coordinator) on duty at night. He coached them and 

reviewed their performance. He addressed their negative 

behavior. He trained new employees. Batze also was 

responsible for the back room, making sure it was organized 

and that vendors delivered the correct amount of product. 

He had the assistance of the store’s receiver, an hourly 

employee. Batze placed his office in the back area so he 

could more easily interact with the vendors. Macaluso 

confirmed that Batze was responsible for minimizing the 

store’s out-of-stocks. In that role, he coordinated with 

department managers or the receiver to ensure they ordered 

correctly to prevent the problem from arising. Personally 

walking up and down the aisles assisted him in managing 

out-of-stocks, as it permitted him to determine where and 

when the problems arose. Macaluso put Batze in charge of 
11

eliminating or minimizing “shrink” (unsold products, such as 

those that spoil and must be discarded). She credited him 

with producing “the best shrink numbers in the district.” 

Batze also was on the safety committee which met monthly 

and regularly communicated safety concerns to employees. 

Macaluso estimated Batze spent 60 percent of his time on 

managerial work. 

Respondent introduced a number of notes Macaluso 

wrote to Batze about his management skills, including one 

congratulating him for achieving a score of “100%” on the 

“[s]hrink audit.” Respondent also introduced performance 

appraisals demonstrating Batze had been commended for 

“mak[ing] good decisions,” “involv[ing] his employees in some 

decision making,” “foster[ing] a positive attitude with 

employees,” “tak[ing] charge of his department,” “build[ing] 

a strong team,” “display[ing] good leadership qualities,” 

“improv[ing] sales in the grocery department,” and 

“manag[ing] with minimal supervision.” Concerning his 

claim to have worked overtime in Bakersfield and Lake 

Isabella during the strike, respondent submitted cash 

register data showing Batze working in the Clovis store in 

the early part of 2004. Macaluso testified that Batze was 

working with her in Clovis from January 2004 until the 

strike ended. 

Batze was the subject of an observational study on 

September 27, 2004 (a Monday), over a year before he filed 

suit. The observer tracked him through the store that day 

and wrote down precisely how much time he spent on his 
12

various activities.9 He was observed performing a 

substantial number of managerial tasks, including walking 

the aisles of the store (performing a “store walk”) while 

talking to the receiver about ordering, talking to clerks, 

stockers and the receiver about the schedule, directing a 

clerk to make tags and signs, asking a clerk about the status

of an order, telling a stocker how to arrange merchandise,

directing a stocker to arrange a display, talking to a stocker 

about a soda shipment, talking on the phone with a frozen 

food manager about placing an order, talking to the dairy 

manager about diversity training, talking with a store 

manager about a sick employee, and talking to a vendor 

about an order, stock levels and display changes. The 

observational study showed that Batze spent approximately 

40 percent of his time “[b]uilding [d]isplays and [s]tocking”

and minimal amounts of time on other non-exempt work.10 

Overall, the study showed that Batze spent 53.6 percent of 

 

9 Batze told the observer that he would not have done 

anything differently had he not been observed, and that there 

was nothing unusual about how he spent his time that day. He 

testified the tasks he performed that day were “typical” but not 

the hours worked. 

10 Besides building displays and stocking, Batze was observed 

performing such non-exempt tasks as moving and stacking 

pallets, physically reorganizing the back room, ringing purchases, 

setting up mats at the front of the store, taking out trash, 

breaking down boxes, and helping customers. Although there 

were many such tasks over the course of the observed day, none 

took more than a few minutes each. 
13

his time on managerial work and 46.4 percent on nonexempt tasks. 

2. Evidence Pertinent to Cesar

a. Plaintiffs’ Evidence

Cesar began working for respondent in June 1987 and 

was still employed by respondent at the time of trial. In 

August 2002, while working at the Dublin store, he became a 

First AM.11 Prior to assuming the position, he completed 

respondent’s Retail Leadership Development program.12 

 

11 Prior to becoming a First AM, Cesar had been a Second 

AM, but due to the trial court’s ruling on the statute of 

limitations, none of his time as a Second AM was considered by 

the court in making its decision. During the relevant period 

(2004 to 2008), Cesar worked at eight different stores: Dublin in 

2004, Livermore from 2004 to 2006, Pleasanton in 2006, Pleasant 

Hill in 2006, Lafayette from 2006 to 2007, Orinda from 2007 to 

2008, Blackhawk/Danville in 2009, and Alamo. 

12 Respondent introduced evidence that the RLD program 

consisted of six months of classes, and that it cost respondent 

over $50,000 per trainee. The program materials described 

typical responsibilities of a First AM as “writing next week’s front

end schedules, monitoring the ad special in-stock position for 

evening business, and checking and assisting with customer 

questions and issues.” The First AM was “officially ‘in charge’ 

the minute the Store Manager leaves the store.” The First AM 

was also responsible for “managing overall operations, 

. . . making sure that end displays are up and stocked, the floors 

maintained, fluid dairy products are property filled, the bread 

displays are fully stocked and rotated, spot-stocking fast selling 

items, reporting out-of-stocks, ensuring that orders are 

(Fn. continued on next page.)
14

The program trained him to work in every part of the store. 

This was because managers were expected to understand 

how to do everything in the store and be able to fill in 

everywhere. Cesar described his duties as being a “gapfiller. . . , filling gaps wherever it’s needed,” including 

checking, stocking shelves and organizing the back room. 

He said that using AMs to perform the work of hourly 

employees allowed stores to meet their prescribed operating 

ratio. 

Cesar testified that he spent between 60 and 90 

percent of his work time on non-exempt tasks, and that the 

allocation between managerial and non-managerial tasks 

was fairly similar at all the stores in which he worked as an 

AM. At his then current position, the Alamo store, almost 

every day he would be given a list of non-exempt tasks by 

the store manager, such as cleaning a freezer, filling an 

outside stand with advertising brochures, moving products 

on and off the floor, straightening products in displays or on 

the shelves, or cleaning and organizing the upstairs storage 

 

transmitted on time, safe work habits are being observed, and 

monitoring front end operations.” A “key responsibility” for the 

First AM was “to maintain superior Service in the store, 

especially monitoring the front end for service levels.” In 

addition, the First AM “respond[ed] to customer inquiries” and 

“handle[d] employee issues that ar[o]se during [his or] her shift.” 

The First AM was to “take[] full responsibility for operating the 

store during [his or] her shift.” 
15

area. He stated that he checked and stocked shelves almost 

every day, and was often formally scheduled to be a stocker 

or the backup checker. He recently had been asked to wear 

the badge of a “manager in training” because the union had 

complained about the Alamo store having too many salaried 

employees. 

According to Cesar, one of his duties at virtually all the 

stores to which he had been assigned was to work as the 

“front-end” manager. This required him to stay at the front 

of the store observing the checkers, directing customers, 

calling for more checkers, and checking “as needed.”13 At 

Alamo, Cesar was assigned the task of managing the frontend approximately one to two hours per day. At the 

Blackhawk/Danville store, his prior assignment, he spent 

three to four hours at the front-end. At Orinda and 

Lafayette, he was in the front-end three to six hours daily. 

At the Pleasanton store, almost all his time was in the frontend. At Pleasant Hill, he was at the front-end one to two 

hours per day. At the Livermore store, he was at the front-

 

13 When working as the front-end manager, Cesar estimated 

he had to jump in and assist with checking from one to four hours 

on any given day. However, respondent produced computerized 

logs of employee checking activity that showed Cesar generally 

checked no more than one to three hours per week. In addition, 

defense witnesses testified that during an audit, the AM at the 

front-end was instructed to manage, not check. As will be 

discussed in greater detail, the logs showed Cesar checking a 

significant amount of time over the course of certain weeks. The 

trial court awarded him overtime for those weeks. 
16

end from two to six hours until the store got a new manager, 

at which point he was reassigned and spent more time 

stocking and organizing the back room. At Dublin, he 

averaged two to four hours per day in the front-end. 

Cesar did not deny that he spent some time in the 

manager’s office every day performing managerial tasks, 

such as writing schedules, attending meetings, reading and 

responding to emails, disciplining employees and taking 

calls. He estimated that at the Alamo store, he was in the 

office one to two hours per day. Overall, he estimated that 

he averaged between one and two hours per day in the office 

throughout his tenure as an AM, except on those days he 

had a specific task requiring more office time. At 

Blackhawk/Danville, the time he spent in the office was 

slightly less. Cesar acknowledged that in his position as 

AM, he disciplined and terminated employees and 

sometimes delegated longer tasks to others. He 

acknowledged that when performing a non-managerial task, 

he would frequently have to shift duties to take care of a 

managerial function. 

One of Cesar’s regular duties was to perform a store 

walk at the end of his shift, checking displays and ordering 

items needed to fill them, and making sure products on 

shelves around the perimeter were “faced” (placed neatly on 

the shelf, older items in the front). He performed dozens of 

shorter store walks every day to observe store conditions. 

During those store walks, he sometimes brought a dolly full 

of merchandise to fill in shelves or displays. He also looked 
17

for opportunities to observe and communicate with 

employees, and to ensure they were staying on task. 

In his deposition, Cesar was asked about what he had 

done on his most recent day of work, a day he had described 

as “typical.” He testified he met with the store manager 

when he arrived at work and obtained a list of tasks, which 

was not lengthy. He had a meeting that lasted 30 minutes 

and participated in a conference call. He checked his email. 

He conducted a short store walk, during which he greeted 

department managers, fixed the problems he could, and put 

other items on a list to be handled later, either by himself or 

assigned to other employees, at his discretion. He testified 

that he checked for an hour and stocked shelves and worked 

on displays for only one to two hours that day. 

In 2009, after his stint at the Orinda store and a period 

of disability, Cesar was placed on a Performance 

Improvement Plan (PIP) by his superiors. Under the PIP, he 

was given the goal of keeping out-of-stocks to fewer than 120 

daily. He was told to “identify and develop at least one 

department manager and two employees to meet 

[respondent’s] goal in key performance areas, service, [outof-stocks], shrink, foot safety and sanitation.” He was told to 

make sure to sign off on various inspections. Other goals 

given in the PIP were to plan advertising weekly with 

department managers and order writers; attend weekly 

profit hour meetings; perform “mock shops” and “role plays” 

with employees to test their performance; hold three 

“huddles” daily with employees; create a list while walking 
18

the store for merchandising, food safety and sanitation; 

delegate tasks to employees with follow-up; and develop a 

system to ensure all department managers knew about sales 

and projections. 

In his annual evaluations, Cesar had been praised for 

his hiring, training, coaching and mentoring efforts. He had 

been criticized for failing to “get involved in opportunities to 

save costs and add value to [the] bottom line,” “demonstrate 

an acceptable degree of forecasting and scheduling ability,” 

“spend [sufficient] time on scheduling and in merchandising 

for sales,” “follow through on the work that he has 

delegated,” and review the inventory report. He also was 

criticized when a store to which he was assigned failed to 

pass its safety audit on multiple occasions, and was directed 

to monitor safety issues more closely and to perform more 

“safety laps.” He had been told in his evaluations to 

“address disciplinary issues,” “take a more active role in 

identifying and solving store issues,” “improve on holding 

people accountable and following up on directions given,” 

“tak[e] charge of an issue or opportunity to improve the 

overall store performance,” “[rally] employees to service 

excellence,” and “identify opportunities in the operation and 

then make the improvements.” One evaluation said that 

Cesar “works hard, but does not work the big picture,” that 

he was “very adaptable to various demands and 

assignments[,] always willing to get in and work,” but that 

his “willingness to roll up [his] sleeves [got] in the way of 

managerial functions.” 
19

A number of Cesar’s fellow employees testified in 

support of his claim that he spent more than half his work 

time on non-exempt tasks. Jonathan Meyer worked with 

Cesar at the Dublin, Livermore and Blackhawk/Danville 

stores.14 According to Meyer, Cesar spent much of his time 

at Dublin checking, “throwing freight,” and stocking shelves. 

If an hourly employee called in sick, Cesar would take over 

his or her job. At the Livermore store, Cesar worked 

alongside Meyer, building displays and stocking shelves. 

Meyer estimated 90 to 95 percent of Cesar’s time was spent 

performing non-managerial work. 

Thomas Hogan, a store manager, supervised Cesar at 

the Livermore store in 2005 and 2006.15 Hogan 

acknowledged AMs were responsible for watching out for 

problems and training staff, but stated there were not 

enough hourly employees at the store to perform all the 

necessary tasks, requiring use of salaried managers to fill in 

to meet the prescribed operating ratio. Hogan believed the 

majority of Cesar’s day was spent checking, cleaning or 

stocking shelves, rather than performing managerial tasks. 

Hogan acknowledged that Cesar was in charge of the store 

two days a week, on Hogan’s days off. 

 

14 At the time of his testimony, Meyer was pursuing a claim 

against respondent. 

15 At the time of his testimony, Hogan was pursuing a claim 

against respondent. 
20

Nicholas Schirato worked with Cesar at the Livermore 

store, where Schirato was a Second AM.16 Schirato observed 

Cesar stocking shelves, “merchandising” and cleaning. He 

estimated Cesar spent 90 percent of his time performing 

those tasks. 

Jennifer Attia, an hourly employee, worked with Cesar 

in Pleasant Hill, where Cesar had been acting store 

manager, and at the Alamo store.

17 Cesar stocked shelves, 

checked and generally did whatever needed to be done, 

including relieving employees on breaks. Attia did not see 

Cesar in the office very much at Alamo. Attia acknowledged 

that Cesar used store walks to observe how employees were 

doing their jobs and to see what needed to be done.

Vickie Penny, a clerk, Amy Carey, a clerk and former 

AM, and Debra Penny, a bookkeeper and clerk, worked with 

Cesar at the Lafayette store.18 They testified he was 

stocking or checking 85 to 90 percent of the time. Carey also 

recalled Cesar building displays. Debra Penny said he 

frequently watched the front-end.19

 

16 At the time of his testimony, Schirato was pursuing a claim 

against respondent. 

17 At the time of her testimony, Attia’s husband was pursuing 

a claim against respondent. 

18 Debra Penny testified that she intended to pursue a claim 

against respondent. 

19 At the time of her testimony Debra Penny was working 

with Cesar at Alamo. She observed him stocking shelves and 

(Fn. continued on next page.)
21

Jeremy Schoen and Shena Meyer worked with Cesar at 

the Orinda store.20 Schoen testified that for the majority of 

his time at work, Cesar checked, worked freight or filled 

displays. In Meyer’s perception, Cesar was greeting 

customers, stocking shelves, facing, checking, bagging and 

helping in any short-staffed department 95 percent of the 

time. 

Tracy Pierson, an hourly employee, Carole Drevno, a 

front-end manager, and Gary Dunmoyer, a day stocker, 

worked with Cesar at the Blackhawk/Danville store.21 They 

testified that the bulk of his day was spent on the sales floor, 

doing non-managerial tasks, such as stocking, checking and 

building displays. He was in the office one to two hours per 

day. 

Susan Bryce and Scott Benvie, both hourly clerks, and 

Daniel Carey worked with Cesar at the Alamo store.22 They 

testified they typically observed him stocking shelves and 

building displays. Bryce testified that Cesar checked more 

than the other managers. Carey also observed Cesar 

 

filling seasonal displays, and estimated he spent 85 percent of his 

time on physical tasks. 

20 At the time of her testimony, Meyer’s husband was 

pursuing a claim against respondent. 

21 Dunmoyer later became a Second AM, and at the time of 

his testimony, was a plaintiff in a lawsuit against respondent. 

22 Carey later became an AM, and was planning on pursuing 

a claim against respondent. 
22

working in the back room, checking and helping supervise in 

the front. 

b. Defense Evidence

Janet Navarrette worked in the Dublin store with 

Cesar in 2004. She was the deli manager. She saw Cesar 

performing store walks of up to two hours. She rarely saw 

him working at the cash registers. In Navarette’s 

estimation, Cesar spent 50 percent of his time in the office,

dealing with managers, vendors and employees. 

Beverly Gandolfo, a Second AM, worked with Cesar at 

the Livermore store in 2006 and at the Alamo store, his then 

current assignment. Gandolfo had been a stocker at the 

Livermore store and did not observe Cesar working in that 

capacity with any frequency. There were sufficient hourly 

stockers at the store to complete the task without the 

assistance of the AMs. Gandolfo described her 

responsibilities as an AM at Alamo as observing, coaching 

and mentoring employees, preparing the work schedule,

preparing time and attendance reports, reviewing emails,

participating in conference calls, and performing store 

walks. She spent a great deal of her time in the office. 

During store walks, she observed employees and talked to 

them about service, met with the various department 

managers, checked for out-of-stocks, and made sure missing 

items were ordered. She did not have time during store 

walks to perform tasks that could be delegated to an hourly 

employee. Because she was responsible for controlling out-
23

of-stocks, she sometimes scanned them herself. This 

facilitated her ability to follow up with her crew and the 

receiver to determine why the problem had arisen. Gandolfo 

had seen Cesar perform store walks at Alamo and did not 

notice him doing anything differently than she did. She 

often saw Cesar working in the office. She acknowledged 

that she sometimes worked on displays, stocked shelves and 

checked, and was occasionally given a non-managerial task 

to perform by the store manager, but maintained that she 

performed managerial work the majority of her time. She 

had not seen Cesar stocking shelves, building displays or 

checking for lengthy periods. On a typical day, those 

activities would occupy less than two hours of a manager’s 

time. 

Helen Carver was the district manager when Cesar 

was the acting manager at Pleasant Hill and when he 

worked at the Lafayette and Orinda stores. Carver 

transferred Cesar from Pleasant Hill to the Lafayette store, 

after observing that the Pleasant Hill store was experiencing 

problems with cleanliness, organization and missing 

signage. When Carver spoke to Cesar about the problems 

the store was experiencing and his transfer, he did not 

suggest that spending time on non-exempt work had 

interfered with his ability to properly manage the store. 

After Cesar’s transfer to Lafayette, Carver observed 

problems with cleanliness, out-of-stocks and poor service, 

and saw that quick-moving products were not being stored in 

the right place for easy access. Carver helped prepare the 
24

PIP, which was put in place after Cesar returned from leave 

to begin work at Blackhawk/Danville. Carver further 

testified that she expected managerial employees to deal 

directly with out-of-stocks because minimizing them 

required coordinating with order writers and determining 

what items were likely to be hot sellers and why. Carver 

explained that during a “checkout success” audit, imposed on 

a store when it was not meeting service goals, managers 

were told to stand in front of the store and oversee the 

checkers, not to check themselves. 

Steven Kozak was the store manager for the 

Blackhawk/Danville store where Cesar was assigned after 

being placed on the PIP. The store was large, with 100 to 

150 employees. There were sufficient numbers of 

nonsalaried people to perform all needed stocking and 

checking. Kozak had no trouble meeting the operating ratio 

without overusing salaried managers. He did not expect 

Cesar to spend more than half his time on non-managerial 

functions. When Kozak performed a store walk, he took 

notes, wrote down “opportunities,” made a list of tasks, 

talked to staff, made sure the departments were up and 

running, coached and gave direction. He trained Cesar to do 

the same. He gave Cesar other managerial responsibilities, 

including preparing the weekly marketing plan. He told 

Cesar to pick a different department every day and meet 

with the employees working in that department to coach 

them on service. He instructed Cesar to document that he 

had engaged in three “huddles” daily. He saw Cesar 
25

stepping in to check more often than he should have, and 

told him “he should not be the first person in the check 

stand.” Kozak did not observe Cesar stocking shelves for 

long periods. 

Kimberly Johnson took over from Kozak as store 

manager for Blackhawk/Danville. She supervised Cesar in 

2009. She twice admonished Cesar to do less checking. 

Once, she had been out for part of the day and returned to 

find Cesar checking when the lines were not long. She told 

him to move on to other tasks. Johnson performed store 

walks with Cesar in the afternoons. During those walks, 

they would evaluate store conditions, make adjustments, 

talk to employees about service, coach and role play, 

delegate tasks to prepare for the evening business, and tidy 

up displays. Cesar would perform a store walk on his own in 

the morning for approximately two hours. She observed 

Cesar interacting with employees throughout his workday.

23 

The store had multiple hourly stockers, and Cesar was 

assigned to oversee them and keep them on task. Out-ofstocks were scanned three times a day by managerial 

employees. Cesar typically did the afternoon scan. After the 

scan, a report was generated that Johnson and Cesar 

 

23 Johnson testified that when she was on the floor she was 

constantly being interrupted by employees with questions, and 

that she spent her time on the floor “looking at store conditions,” 

“checking to make sure people have followed through on tasks . . . 

assigned them,” and “watching . . . employees interact with 

customers.” 
26

reviewed and used to delegate tasks to the various 

departments. Johnson discouraged Cesar from writing 

orders himself, and told him to use the report as a training 

opportunity and to go over out-of-stock problems with the 

order writers. Johnson estimated Cesar spent 20 to 25 

percent of his time at the front-end of the store and 60 to 70 

percent on the floor, and that 80 percent of this front-end 

and floor time was spent on managerial tasks. Cesar worked 

in the back room 10 percent of his time, and half of that was 

managerial. He was in the office 10 to 15 percent of his 

time, and all of that was managerial. 

Adrienne Simpson worked with Cesar at the 

Blackhawk/Danville store in 2009. In her capacity as a 

bookkeeper, she was frequently in and out of the manager’s 

office. She saw Cesar in the office a couple of hours each 

day. She observed him directing employees to perform 

various tasks and disciplining employees. She saw him in 

the check stands daily, but only for a few minutes at a time. 

She never saw him stocking shelves. 

Susan Obenour was the deli manager at the Alamo

store and worked with Cesar in 2009. From her work area, 

she could see the manager’s office. She also went in and out 

of the office multiple times a day. She estimated Cesar was 

in the manager’s office from 30 to 55 percent of his time. 

When Cesar did his morning store walk, Obenour observed 

him writing notes about problems that she and other 

department managers might be having. 
27

3. Justin Hayes

a. Plaintiffs’ Evidence

Hayes completed respondent’s RLD program in 2003. 

He was working as a First AM at the Citrus Heights store at 

the time of trial. He had worked as a First AM at the Arden 

Way store from 2004 to 2007, at the West Sacramento store 

for a few months in 2007, and at the Elk Grove/Laguna store 

from 2007 to 2009.24 In addition, he had been acting store 

manager for part of his tenure at the West Sacramento and 

Elk Grove/Laguna stores. 

Hayes’s hours were generally 7:30 am. to 5:30 p.m. or 

10:00 a.m. to 8:00 p.m. He estimated that 90 percent of his 

time as First AM was spent on “physical things,” including 

checking, stocking shelves, dealing with deliveries and 

manning the customer service counter.25 Even during the 

periods he was acting store manager, he believed he spent 80 

to 90 percent of his time on non-managerial work. He did 

 

24 Hayes became a Second AM in 2001 and a First AM in 

2004. Because of its statute of limitations ruling, the trial court 

considered only the period from October 2004 onward, after 

Hayes had become a First AM. Like Batze, Hayes claimed to 

have replaced striking hourly workers during the 2003 to 2004 

strike, but the court found that Hayes’s claims for that period 

were foreclosed by the statute of limitations. 

25 Hayes included in the calculation time spent standing at 

the front-end overseeing the checkers, a task he performed from 

3:00 p.m. to 7:00 p.m. every day and 10:00 a.m. to 7:00 p.m. on 

weekends during a period when two of his stores were being 

audited for their “checkout success.” 
28

non-managerial tasks because there was no one else to do 

them. A few months prior to trial, the district manager 

threatened him with termination if his store did not meet its 

operating ratio. The district manager told him that if Hayes 

had to send hourly people home and take over checking, that 

was what he should do. 

On cross-examination, Hayes acknowledged 

performing managerial tasks. He was responsible for 

minimizing out-of-stocks. He regularly reviewed emails, 

service reports, the store schedule, payroll documents, outof-stock reports, budget reports and sales reports. When he 

performed a store walk, he stopped to speak to department 

managers and looked for safety issues. His responsibilities 

for the front-end included evaluating the clerks. He 

performed financial forecasting. He was acting manager at 

his current store when the store manager was out, during 

which time he was responsible for supervising all the store’s 

employees. At his deposition, Hayes testified he was in the 

office up to two hours daily. 

Hayes injured his shoulder in 2003. After examining 

Hayes, the medical examiners reported that he was “working 

more in management so has been able to work full duty” and 

that he had “progressed to an[] upper position not requiring 

the same duties as [a] retail clerk.” 

Kristin Caro and Susan Venrick-Mardon, both hourly 

employees, worked with Hayes at the Arden Way store when 

he was an AM. They testified that Hayes did every job that 

needed to be done, including checking, stocking shelves, 
29

building and filling displays and filling out-of-stocks. Caro 

testified Hayes was rarely in the office, and that he was 

performing some type of non-managerial physical labor 80 

percent of the time. 

Sajid Khan, a checker, worked with Hayes at the West 

Sacramento store and the Elk Grove/Laguna store. At West 

Sacramento, he saw Hayes spending significant time 

returning misplaced items to shelves, stocking, checking and 

helping with shipments from vendors. At Elk Grove/Laguna, 

Hayes spent most of his time setting up promotional or 

holiday displays. Hayes also checked and stocked. He was 

rarely in the office at either store. 

Patricia Hadley, Dale Martin, Kashmira Law and 

Sherry Venezio worked with Hayes at the Elk Grove/Laguna 

store.26 They all testified that Hayes spent most of his time

-- 80 to 90 percent -- on non-exempt tasks, including 

checking, throwing freight, filling out-of-stocks, building 

displays and organizing the back room. 

Thomas LePage, the manager of the Elk Grove/Laguna 

store testified on Hayes’s behalf.27 He said Hayes occupied 

his workdays checking, stocking shelves and building 

displays. Hayes was in the office five to ten percent of his 

time and a little longer on the days he put together the 

 

26 At the time of his testimony, Martin was pursuing a claim 

against respondent. 

27 At the time of his testimony, LePage was pursuing a claim 

against respondent. 
30

schedule. LePage testified he was told to use AMs in 

positions like checking and stocking because there were not 

enough hours of administrative work to fill their time. 

LePage acknowledged that Hayes had to fulfill more 

managerial tasks when he took over as acting store manager 

when LePage was out. 

b. Defense Evidence

Camelia Chira worked with Hayes at the Arden Way 

store. She was the Second AM. She saw Hayes preparing 

the schedule, working on projections, and doing other 

paperwork. Hayes trained Chira to do the paperwork 

required of an AM. She did not recall ever seeing him 

stocking shelves. He performed store walks, during which 

he talked to employees and customers, fixed things and 

made sure everything was running smoothly. She 

occasionally saw him check. He spent the bulk of his time, 

up to 70 percent, in the office. 

Joseph Chappelle, a store manager, supervised Hayes 

at the Arden Way store. He testified that Hayes wrote the 

schedule for the night crew, the front-end and the courtesy 

clerks -- more than 70 employees. Writing the schedule 

required knowledge of sales projections and hours allotted by 

the operating ratio. It also required knowledge of which 

checkers were better than others, so they would be scheduled 

during prime periods, and input from the employees as to 

when they wanted time off. Hayes spent eight to ten hours 

per week on the schedule. Chappelle testified that Hayes 
31

spent 75 percent of his time in the office, writing the 

schedule, pulling reports and e-mails, and participating in 

conference calls and meetings. Hayes checked only 5 percent 

of his day, and was even less involved with stocking shelves 

or building displays. Those tasks were taken care of by 

hourly employees. 

Lisa Lewis became the store manager of the West 

Sacramento store at the end of 2007, relieving Hayes who 

had been acting manager. When she arrived, she asked him 

to stay on for two weeks and run the store as if she were not 

there. Hayes prepared sales plans, wrote the schedule, 

talked to employees, and walked around the front-end to 

make observations. He replenished eggs or milk a few times 

during that period, but that task took only five to ten 

minutes at a time. Hayes spent 80 percent of his time in the 

office, and lesser amounts of time managing the front-end or 

performing a store walk. There were more than 60 

employees, and preparing the schedule could take up to two 

hours. After Lewis became manager of the West Sacramento 

store, she spent most of her time in the office. She spent 

time checking, but rarely built displays or stocked shelves. 

Managing the front-end required her to observe the checkers 

to see if there were any inefficiencies in their manner of 

working that could be corrected. When she performed a 

store walk, she put items back where they belonged, but also 

talked to the department managers, and made notes of tasks 

to hand off to employees. 
32

Lewis had been First AM at the Elk Grove/Laguna 

store, where Hayes went after West Sacramento. Her duties 

there were very similar to her duties as store manager 

because the Elk Grove/Laguna store manager, LePage, was 

frequently absent and left her in control of the store. She 

estimated she spent 70 percent of her time managing. She 

never had to check or stock for the store to meet its 

operating ratio. 

Nicholas Patmore, a produce manager, worked with 

Hayes at the Elk Grove/Laguna store. Hayes was usually in 

the office when Patmore needed to find him. When an extra 

checker was needed, someone from the produce department 

would step in, not Hayes. Patmore saw Hayes walking the 

store, but not stocking shelves. 

John Cain was a district manager and a 35-year 

employee of respondent. Hayes had been an assistant 

manager in his district for ten years. Because Hayes’s 

Citrus Heights store was near Cain’s office, Cain visited it 

frequently. He normally found Hayes in the store manager’s 

office. Hayes took over the manager’s duties on the 

manager’s two days off per week and during the manager’s 

vacations. 

Cain also discussed the typical responsibilities of the 

First AMs in his district. They are responsible for store 

safety and participate in safety calls every week. They are 

responsible for ensuring that the store’s departments do not 

go over budget on supplies. They keep track of sales 

forecasts and checker productivity. They are responsible for 
33

developing ways to minimize shrink. They are expected to 

deal with product recalls. They are responsible for 

front-end service, including the checkers’ performance and 

the appearance of the areas in front of the store. They are 

expected to observe employees on the sales floor and to train, 

coach and “role play” with them. Cain testified that First 

AMs engaged in those and other managerial tasks more than 

50 percent of the time. 

Lance Feliciano, a receiving clerk, worked with Hayes 

at the Citrus Heights store. Hayes frequently called 

Feliciano away from his regular responsibilities to work as a 

checker. Feliciano rarely saw Hayes checking and never saw 

him stocking shelves. Feliciano estimated Hayes spent 70 to 

80 percent of his time in the manager’s office. 

Melissa Mastalski, a deli manager, worked with Hayes 

at the Citrus Heights store. She never saw Hayes stocking 

shelves. She occasionally saw him checking, but only for a 

few minutes a day. Mastalski would go to Hayes for help 

with employee disciplinary problems, because Hayes “t[ook] 

care of the discipline of employees” for the store. She 

described him as a “by-the-book” manager who spent most of 

his time in the office. Mastalski further stated that the store 

manager preferred to work on the floor and let Hayes handle 

the office work and the more administrative parts of 

managing the store. 
34

B. Trial Court’s Statement of Decision

1. Preliminary Findings

After hearing the evidence, the trial court prepared a 

101-page modified statement of decision (MSOD) that 

summarized and analyzed the evidence in great detail.28 

The court recognized that its primary task was to determine 

“how each plaintiff spent his time,” particularly whether 

“they customarily and regularly exercised discretion” and 

“devote[d] more than 50% of their time to exempt 

activities.”29 The secondary issue was “if they did not, was 

their failure . . . due to their own substandard work such 

that they failed to meet [respondent’s] realistic expectations 

 

28 The court prepared a tentative decision, which was entirely 

in favor of respondent. A few days after appellants submitted 

objections to the tentative decision, this court issued its opinion 

in Heyen v. Safeway Inc. (2013) 216 Cal.App.4th 795 (Heyen). 

Following further briefing and argument, the court issued the 

MSOD. 

29 The court found that appellants indisputably met certain of 

the criteria of the exemption: “They managed a work unit with a 

permanent status and function. Batze handled the night crew. 

Cesar and Hayes supervised at least the front end of their stores 

and usually their entire stores. . . . Second, [appellants] directed 

the work of at least two other employees, and usually more than 

that. Third, there is evidence that each [appellant] had the 

authority to make suggestions and recommendations as to the 

employees they supervised. As the evidence [showed], all three 

could discipline and admonish . . . . Finally, their monthly salary 

met the minimum amount.” (See Wage Order No. 7-2001 [Cal. 

Code Regs., tit. 8, § 11070, subd. (1)(A)], discussed further, infra.)
35

with respect to [AMs]?” The court recognized that 

respondent bore the burden of “convinc[ing] [the] court that 

it realistically expected people like [appellants] to manage, 

and that they in fact did so more than half the time.” The 

court also recognized that exemptions to the general rule 

requiring employees to be paid overtime “are narrowly 

construed against the employer and the application is 

limited to employees who are plainly and unmistakably 

within their terms.” On the evidence before it, the court 

found in favor of respondent on both issues. 

Preliminarily, the court rejected the contention that 

because respondent bore the burden of proof, “it must 

produce evidence of [the] tasks [appellants] performed 

during every workweek for which liability is in question.” 

Instead, the court ruled that respondent could properly rely 

on logical inferences or evidence from which extrapolation 

was possible.30 The court acknowledged it should not apply 

data directly pertinent to one appellant to another, but found 

it “proper to consider a store’s time records for one 

[appellant’s] so-called typical day in determining [the] time 

 

30 In making this ruling, the court cited a July 6, 1993

Division of Labor Standards Enforcement (DLSE) Opinion Letter 

stating: “[T]he Division take the position that if an employee 

fulfills all of the other requirements of the managerial or 

executive exemption, the presumption is that the activity the 

employee is ‘engaged in’ is probably exempt, unless the facts 

prove to the contrary.” (Underscoring omitted.) 
36

the same person spent on other days in the same store, or 

even in stores of similar size and characteristics.” 

The court then considered how to categorize three of 

the predominant work activities engaged in by appellants: 

store walks, managing out-of-stocks, and working at the 

front-end. The court recognized that “[t]he regulations do 

not recognize hybrid activities,” and that “each discrete task 

[must] be separately classified as exempt or non[-]exempt.” 

The court found that “store walks, especially long ones, 

constitute exempt tasks.” They were, the court observed, 

“the chief method a manager uses to determine what is going 

on in the store and where (and with whom) he needs to 

devote attention.” The walks “offer an opportunity to 

interact with employees, survey the merchandise and spot 

needs, especially with respect to the all-important out-ofstocks.” The court concluded that “[a] momentary pause” to 

relocate or rearrange products did not transform the activity 

from exempt to non-exempt: “The purpose of the walk 

remains managerial . . . .” 

With respect to managing out-of-stocks, the court broke 

down the activity into three parts -- “counting, ordering and 

replenishing.” The court found that “replenishing” --

essentially stocking shelves -- was non-exempt. It found the 

other two aspects of managing out-of-stocks to be 

managerial. Taking part in scanning the tags on the shelves 

allowed the AM to personally determine where the problems 

were, what items were fast-moving and the time of day they 

were likely to run out. Thus, “the AM can assess the 
37

situation and determine if the [out-of-stock] comes from the 

vendor, the failure of the night clerk to order, a problem at 

the warehouse, or a problem that can be controlled at the 

store level.” Taking part in ordering allowed the AM to give 

order writers input and training. Moreover, fixing the 

problem might require the AM to communicate directly with 

the vendor to determine what happened. If an employee 

were “told to scan [out-of-stocks] and d[id] simply that,” the 

activity would be non-exempt, but because the evidence 

indicated the AMs performed the scanning as part of their 

managerial responsibilities, the court found the activity 

exempt. 

Finally, the court found that the time appellants spent 

at the front-end was exempt time. The purpose of the task 

was to “regulat[e] the work flow and/or [watch] and 

evaluat[e] the performance of their employees . . . .” Because 

“[t]he manager is surveying the employees and trying to 

ensure that they deliver excellent service, that the checkout 

lines run smoothly, and that no confounding incidents 

occur[,] [t]he activity calls for discretion and independent 

judgment and qualifies as exempt.” 

2. Exercise of Discretion

With respect to the exercise of discretion, the court 

noted that respondent limited an AM’s discretion in 

significant ways: “The inventory they carry, the 

merchandise they display, the manner in which they display 

it, how much they display -- [respondent] dictates all of those 
38

points. . . . Just about everything is measured and audited 

either by a corporate auditor, a division auditor, a field 

merchandiser, or [a district manager].” Nevertheless, the 

court concluded that “[a]ll the micromanaging [respondent] 

engaged in did not eliminate the need for a person with 

common sense and leadership ability to exercise the 

discretion needed to make the store operate according to 

[respondent’s] practices and procedures, schedules and 

schematics.” The evidence pertaining to each appellant 

“show[ed] they got involved with employees . . . , coaching 

and disciplining and training them.” The AMs were 

expected to “schedule their stores, train the front-end 

employees, train the courtesy clerks, and hold a minimum of 

two huddles a day,” in short, “create order out of chaos.” 

While they may have been “tightly bound,” the court 

concluded “managers do not lose their exempt status when 

their job is to manage the little things. If left unchecked, 

little problems can become big problems.” 

Turning to the related question whether each appellant 

spent more than 50 percent of his time in managerial 

activities requiring the exercise of discretion, the court 

reviewed all the testimony and made credibility findings 

before concluding that respondent had largely met its 

burden of proof on this issue. 

3. Batze

With respect to Batze, the court pointed out that Batze 

himself had acknowledged “he wrote the schedule,” “was 
39

responsible for managing the grocery department, which 

constituted the bulk of the store,” “was responsible for 

keeping the back room organized,” “gave personal 

evaluations to employees,” and “wrote appraisals . . . .” 

Batze’s testimony with respect to taking labels off the 

shelves to create the impression the number of out-of-stocks 

was lower than it actually was constituted an exercise of 

managerial discretion and “support[ed] an inference that 

this activity [was] exempt.” The court observed that even 

witnesses called to support Batze’s claim attested to 

observing him engaged in managerial tasks, such as 

Saubert’s testimony that Batze talked to the receiver and 

dairy manager about employee performance and orders. 

In support of its finding that Batze spent the majority 

of his time on exempt work, the court found credible 

Macaluso’s testimony that Batze spent 60 percent of his time 

performing managerial duties. The court found her 

testimony “straightforward” and “honest.” In addition, her 

testimony was supported by memoranda she wrote and 

compliments she directed to Batze for his management work. 

The court found particularly significant Macaluso’s 

testimony that Batze coordinated and negotiated with 20 to 

25 vendors per week to determine where they would put 

their displays: “Ms. Macaluso testified, and this court 

agrees, that the relationship between an AM like Gary Batze 

and a vendor was important. If they did not get along, the 

store would suffer lost sales and lost loyalty.” The court also 

found significant the evidence that Batze was put in charge 
40

of eliminating shrink, and that the Clovis store ended up 

with “the best shrink numbers in the district.” With respect 

to Batze’s witnesses, the court concluded that their 

estimates that he was working on non-exempt tasks 80 to 90 

percent of the time were “exaggerated,” and likely “the 

product of faulty memory,” causing the court to discount 

their testimony. 

The court also relied on the observational study that 

found Batze performed “a host of managerial functions” 

throughout the day, including “[d]irecting a clerk to make 

tags and signs[,] [¶] telling a stocker how to arrange 

merchandise[,] [¶] directing a stocker to re[-]merchandise a 

display[,] [¶] . . . [¶] speaking to the receiver about 

performance[,] [¶] talking to a receiver about an employee’s 

time and attendance[,] [¶]. . . [¶] talking to a stocker about a 

soda shipment, talking on the phone with a frozen food 

manager about placing an order, talking with a store 

manager about an employee who was sick, and talking to a 

receiver and a manager about the placement of signs.” 

While the study found that Batze spent more than 40 

percent of his time working on displays and stocking, the 

court made clear that it did not agree that all time spent 

dealing with displays was non-exempt. Although 

“‘corporate’” controlled the designs, layouts and items to 

include on displays, Batze had discretion about what to 

display in some areas, and he could create themes and add 

tie-ins. “Product placement can be important to marketing 

effectiveness. Such an activity does not lose its exempt 
41

status because of the company’s desire for standardization 

and uniformity. . . . [¶] . . . Viewed from the vantage point of 

expensively-educated professionals, Mr. Batze’s tasks may 

appear to be trivial, but they were not. These kinds of 

activities are important to a store like the Vons in Clovis. 

Someone needs to coordinate and oversee activities. 

Someone must make certain that displays are built, that the 

right merchandise gets on them, and that the merchandise is 

ordered in the right quantity and at the right time. That, 

coupled with the duty to look out for (supervise) fellow 

employees, constitutes the essence of management. The 

activities may not require great sophistication, but they 

require knowledge and the exercise of common sense.” 

The court found further support for its conclusions 

concerning Batze in the characteristics of the Clovis store: 

“[A]pproximately 115-125 people were employed at that 

location[,] . . . [its] average weekly sales reached $600,000[,] 

[it] occupie[d] 55,000 square feet, and the sales floor [took] 

up 40,000 square feet.” A store of that size “cannot run 

itself, nor can one manager handle it. There are simply too 

many people and too many moving parts to the operation. [¶] 

. . . [W]hen employees are first hired to work in a 

supermarket, they generally have no training and probably 

no background in the food industry. They start in entry 

positions like courtesy clerks and advance to positions like 

front-end managers, grocery managers, and deli managers. 

. . . Someone has to give them instructions and make sure 

they follow them. The ‘corporate people’ are not there often 
42

enough to do this task. To fill the missing link, [respondent] 

uses managers and [AMs]. For this reason, among others, 

. . . it is hard to accept that the store’s leadership could 

devote almost all their time to non-exempt physical work. 

Even acknowledging the lesser customer interaction during 

night work, logic dictates that someone must direct and 

coordinate after-hours activities if the store is to remain 

organized and properly stocked. The size of stores like 

Clovis, standing alone, constitutes strong evidence that 

. . . Batze had to have performed exempt tasks most of the 

time. Otherwise, the night operation would have fallen 

apart.” 

The court concluded that the “reasonable, credible, and 

solid value evidence [respondent] presented with respect to 

[Batze’s] time and tasks” satisfied its burden with respect to 

Batze: “[Respondent] realistically expected him to manage, 

and he did so. . . . more than fifty percent of the time.”

4. Cesar

The court then turned to Cesar. Preliminarily, the 

court pointed to Cesar’s own testimony that he spent a 

minimum of one to two hours in the office, that he did not 

“typically sit or stand in one place during the day,” that he 

did not “devote continuous time to one task, but d[id] many 

things in small increments,” and that he was “constantly 

looking for opportunities to observe and communicate with 

employees.” The court also relied on Cesar’s deposition 

testimony describing his activities on a typical day -- in 
43

particular, the testimony that he spent no more than an 

hour checking that day and no more than one to two hours 

stocking shelves and building displays -- and his testimony 

in court that his tasks did not change much from store to 

store. The court found it “difficult to accept the conclusions 

of [the co-workers who testified on behalf of Cesar] because 

1) several g[a]ve time estimates that depart[ed] so far from 

logic that the court doubts their credibility; 2) some have 

been directly discredited; and 3) . . . their testimony 

depend[ed] on recollection, and where [respondent does] 

have records, those writings support [respondent’s] 

position.”31 The court also discounted the testimony of 

Cesar’s witnesses because (1) many had “reasons . . . to be 

biased,” either because they or their family members were 

pursuing suits of their own or had been the subject of 

criticism or discipline by respondent; (2) their work hours 

did not significantly overlap Cesar’s; (3) their assessments of 

what constituted managerial work differed from the court’s;

or (4) they simply did not appear credible on the stand. In 

short, the court concluded, documentary evidence “coupled 

with the testimony of [respondent’s] witnesses, constitute[d] 

evidence that is more reasonable, credible, and of solid value 

than the memories of [Cesar’s] supporters.” 

 

31 The documentary evidence to which the court referred were 

the records showing the minimal amount of time Cesar spent 

checking, the evaluations over the years of his managerial skills, 

and documents introduced by respondent showing Cesar gave 

written instructions to and disciplined subordinate employees. 
44

The court specified the testimony it found particularly 

credible: (1) Kozak’s testimony that the Blackhawk/Danville 

store had sufficient stockers and checkers that there was no 

need for AMs to perform those tasks, and that he had no 

difficulty meeting his store’s operating ratio without relying 

on salaried AMs to perform non-exempt tasks; (2) Johnson’s 

testimony that when she heard Cesar and another AM had 

spent a large amount of time in the check stand on her 

partial day off, she questioned why; (3) Gandolfo’s testimony 

that as a First and Second AM, she spent the majority of her 

time engaged in managerial tasks, including observing, 

mentoring and disciplining employees, handling emails and 

daily time and attendance reports, scheduling, attending to 

recalls, regularly talking to department managers, and 

performing store walks; (4) Gandolfo’s testimony that Cesar 

performed store walks similar to hers, spent more than half 

his time in the office, and did not spend excessive time 

stocking shelves or checking; (5) Carver’s testimony that 

when she put Cesar on a PIP because his store was not 

meeting expectations, he did not suggest it was because he 

was required to perform non-exempt labor; (6) Obenour’s 

testimony that she generally saw Cesar in the office doing 

paperwork at the Alamo store or walking the store to 

identify problems; (7) Navarrette’s testimony that Cesar 

spent most of his time in the office at the Dublin store; (8) 

Simpson’s testimony that she saw Cesar in the office two 

hours a day at the Blackhawk/Danville store and never saw 

him stocking shelves; and (8) Johnson’s testimony 
45

concerning the percentage of time Cesar spent at the frontend, in the back room, on the sales floor, in his office, and on 

managerial tasks. Based on the evidence it found most 

credible, the court concluded that Cesar spent 35 percent of 

his time on store walks, 25 to 30 percent of his time in the 

office, and five to ten percent of his time on the floor engaged 

in other managerial tasks.32 

5. Hayes

With respect to Hayes, the court recounted Lewis’s 

testimony that when she “asked Hayes to run the store as 

though she were not there,” he “made sales plans, drew up 

schedules, spent, she estimate[d,] 80% of his time in the 

office [citation], talked with employees, walked the front 

end[,] made observations, moved displays, and made a few 

changes to them.” Moreover, “[s]he did not observe Hayes 

stocking except for five or ten minutes when he replenished 

eggs or milk.” The court also recounted Lewis’s “densely 

detailed narrative of management activities, based on her 

experience in that position”: “She described the [operating 

 

32 Based on the check stand data, the court found nine weeks 

stood out from the rest because Cesar spent an unusually high 

amount of time checking -- 15 hours a week or more. The court 

found that “it [was] probable that if [Cesar] had to devote 

exceptional time to this non-exempt task at the cash register, the 

situation at his store required him to perform other non-exempt 

tasks beyond what he normally performed,” and therefore was 

primarily engaged in non-exempt activities. For those weeks, the 

court awarded Cesar $11,090.25 in overtime pay. 
46

ratio] system, participating in huddles, managing out[-]of[-

]stocks, attending safety meetings, profit hour meetings, 

using front end activities as an opportunity to coach,[] and 

performing store walks. . . . She contradicted [appellants] 

(and especially Hayes) every step of the way, claiming that 

some 80-90% of her time is spent in the office managing 

[citation] and maybe 5-10% of her time at the front end, 

where she mostly manages. She said it was ‘absolutely not’ 

true that a manager had to check or stock to make 

[operating ratio]. She spends ‘maybe thirty minutes to four 

hours a week’ checking and next to no time building and 

stocking displays as she has clerks who do that.” (Fn. 

omitted.) The court found Lewis “credible throughout.” 

The court also highlighted Cain’s, Mastalski’s, 

Patmore’s, Feliciano’s, and Chappelle’s testimony that Hayes 

spent most of his time in the office, Mastalski’s testimony 

that the Citrus Heights store manager preferred to let Hayes 

handle paperwork and administrative matters, and 

Feliciano’s testimony that he never saw Hayes stocking. 

With respect to Chappelle’s testimony that Hayes was 

responsible for scheduling the store’s employees, the court 

observed: “He scheduled the night crew and the front end 

including courtesy clerks -- all told, over seventy employees.

. . . This was not a simple task. One needs to know the sales 

projections, learn how many hours you have to work with, 

designate where people will work and at what times, what 

jobs need to be done, and who will do them. One needs to 

identify the best checkers and then schedule them into the 
47

busiest periods. As a result, it is not surprising that this 

witness [said] that Hayes spent 8-10 hours a week 

scheduling and writing those schedules in the manager’s 

office.” 

The court discounted much of LePage’s testimony. 

Because he was pursuing a claim against respondent, he had 

reason to be biased. “[M]ore important, given his time away 

from the store, it is hard to accept that his conclusions about 

Hayes’ time on tasks are accurate.” 

With respect to Hayes himself, the court pointed out 

numerous discrepancies between his testimony at trial and 

his deposition testimony, including whether he regularly 

reviewed and passed on information in departmental budget 

reports, whether he conversed with employees and 

department heads while performing store walks, and the 

amount of time he spent in the office at the West 

Sacramento store. The court also found that Hayes had been 

less than honest concerning whether he reported to his 

workers’ compensation doctor that his duties were 

managerial and not the same as a clerk’s. The court 

discussed the data provided by respondent summarizing the 

amount of time Hayes engaged in checking; it showed that 

he generally spent 15 hours or less per week in that activity, 

thus refuting his claim that he spent “the better part of his 
48

days checking.”33 It appeared to the court that Hayes’s 

memory was faulty, and that he erroneously believed he was 

toiling more hours doing non-exempt work than he actually 

was. 

Ultimately, the court concluded that Hayes spent “at 

least 55% of his time in the office performing exempt tasks,” 

that “[a]t least 10-15% of his time was devoted to store 

walks, also exempt,” that “he spent no more than 37% of his 

time in the check stand,” and that “[t]he other non-exempt 

activities he performed did not consume more than 10% of 

his time.” In short, the court concluded, “[respondent] met 

its burden with respect to Justin Hayes.” 

6. Realistic Expectations

The court further found that respondent had a realistic 

expectation that its store managers and AMs would be 

involved primarily in exempt work. The court focused on 

whether “there was enough exempt, i.e., managerial, work 

for [appellants] to fill their day.” If not, or “if there was 

plenty of managerial work but [respondent] constantly 

diverted [appellants] to non-exempt physical or clerical 

tasks, that constitute[d] evidence that [respondent] did not 

realistically expect [appellants] to manage.” The fact that 

respondent put most of its AMs, including Cesar and Hayes, 

 

33 The court found two weeks in which the records showed 

Hayes spent 19 or 20 hours checking. The court awarded Hayes 

$595.19 for those periods. 
49

through the costly RLD program supported the inference 

that it reasonably expected them to spend the majority of 

their time managing: “[T]he program lasts six months 

during which future managers receive on the job training. 

They learn how to schedule, how to do payroll, in short, how 

to manage a store. They are tested on what they learn. The 

goal is for a participant to emerge equipped to run his or her 

own store. The training materials [citation] are extensive.[]” 

(Fn. omitted.) “[Respondent] spends over $50,000 per 

employee on this activity. It is difficult to see how 

[respondent] would invest this level of resources in such an 

undertaking, yet expect its graduates to spend more than 

50% of their time performing non-exempt tasks like checking 

and throwing freight. The RLD program constitutes 

powerful evidence that [respondent] realistically expected its 

AMs to perform the exempt functions a manager would.” 

The court found further support for its determination 

that respondent’s realistic expectation was that appellants 

would engage primarily in managerial work in the evidence 

concerning AMs’ responsibilities. In addition to being 

responsible for the entire store on the store manager’s day 

off, the First AM had nearly entire responsibility for the 

front-end, including customer service, checkout success, the 

outside areas, the lobby and the parking lot. The evidence 

further established that AMs were expected to schedule the 

employees’ work hours and to discipline them. The court 

also relied on evidence that when AMs performed nonexempt tasks, the store suffered: “AMs are responsible for 
50

service levels and conditions, and if they are tethered to a 

specific task, they are unable to move about and effectively 

manage the store.” Carver testified that the Pleasant Hill 

and Lafayette stores suffered due to Cesar’s failure to 

adequately manage. The evidence concerning the 

characteristics of the stores -- their size, the number of 

personnel each employed, and the number of daily sales 

transactions -- further persuaded the court that respondent 

realistically expected its managers to perform exempt tasks: 

“A store like this cannot run itself, nor can one manager 

handle it. There are simply too many people and too many 

moving parts to the operation.” 

The court found further support in the evaluations 

appellants received over the course of their employment. 

Batze’s evaluations “focus[ed] on his management style, his 

ability to motivate others, mak[e] solid sound decisions, 

proactively involv[e] employees in decision making, not being 

afraid ‘to go outside the envelope to make his department 

the best,’ even calling his team on his days off.” The court 

also discussed the evaluations for Cesar: (1) complimenting 

his hiring, training and mentoring abilities; (2) stating that 

he needed to learn to analyze financial reports and get 

involved in opportunities to save cost to “‘add value to [the] 

bottom line’”; and (3) faulting him for failing to “make sure 

to follow through on work he . . . delegated.” He was held 

accountable when one of his stores failed its safety audit. He 

was told his “‘willingness to roll up [his] sleeves” got in the 

way of his managerial functions. He was criticized for 
51

jumping into the check stand too often. Everything he was 

told to do to bring himself off the PIP was managerial in 

nature: “The company wanted Cesar to, inter alia, maintain 

store standards in merchandising, food safety and 

sanitation, and cleanliness; to plan with the department 

managers; to hold order writer meetings at least weekly; to 

do service mock shops once a day, five role-plays daily, and 

hold no fewer than three huddles a day; and to hold

employees accountable to meet goals. The company wanted 

him to walk the store daily and create a store walk list of 

merchandising, food safety and sanitation and cleanliness, 

and to delegate to employees. He was to develop a system to 

ensure that all department managers knew, each day, 

information such as sales vs. projections.” From evidence on 

“the macro level” (“[respondent’s] policies and the syllabus of 

the [RLD] program”) and “the micro level” (“disciplinary 

write-ups, . . . PIP forms, and performance evaluations”) the 

court concluded respondent realistically expected appellants 

to manage. 

7. Exempt Work During Strike

The court found that the work performed during the 

strike did not transform Batze or Hayes into non-exempt 

employees. The court found the strike constituted an 

emergency, during which neither employee lost his exempt 

status even if performing non-exempt work. In addition, the 

court found that Hayes’s claim for work during the strike 

was barred by the statute of limitations, and that Batze’s 
52

claim to have worked long days at the Lake Isabella and 

Bakersfield stores was not credible in the face of other 

evidence -- including cash register data and Batze’s own 

calendar -- showing him working his usual hours at the 

Clovis store. 

8. Statute of Limitations

The court found that the statute of limitations 

precluded appellants from raising claims arising more than 

four years before the filing of their individual complaints and 

that the filing of the Knoch action in 2002 did not toll the 

running of the statute. Specifically, the court found “[t]he 

discrepancies between what happened to each of these many 

plaintiffs in each of their many stores are simply too great 

for the Knoch action to have put [respondent] on notice that 

it needed to preserve evidence with respect to every one of its 

managers and assistant managers.” Moreover, respondent 

could not “‘be expected to maintain all employment records 

relating to literally thousands of employees who have held 

multiple positions in hundreds of locations dating back to 

1998 on the theory that such employees may decide after 

certification is denied to bring an individual suit.” (Italics 

omitted.) The court found it “unrealistic to expect a business 

to gather statements from co-workers about co-workers and 

preserve them for so many years.” The court further found

that Cesar and Hayes had unreasonably delayed in bringing 

their actions after class certification in Knoch was denied. 

Finally, alluding to numerous instances during trial when 
53

witnesses could not recall events, the court stated: “To force 

[respondent] to resist claims based on evidence up to twelve 

years old is not fair. Few, including [appellants], can 

accurately remember what happened that long ago, 

especially nonparty employees who were not focusing on the 

situation at hand.” 

Judgment was entered on the court’s findings. This 

appeal followed.

DISCUSSION

A. Substantial evidence supports the court’s

 determination that appellants were primarily

 engaged in exempt work.

1. Categorizing Work as Exempt or Non-exempt

California’s Labor Code mandates overtime pay for 

employees who work more than 40 hours in a given work

week. (Labor Code, § 510, subd. (a).) However, the 

Legislature authorized the Industrial Welfare Commission 

(IWC) to establish exemptions for various categories of 

employees, including “executive . . . employees,” where the 

employee is “primarily engaged in the duties that meet the 

test of the exemption,” the employee “customarily and 

regularly exercises discretion and independent judgment in 

performing those duties,” and the employee “earns a monthly 

salary equivalent to no less than two times the state 
54

minimum wage for full-time employment.”34 (Labor Code, 

§ 515, subd. (a).)

In keeping with this authority, the IWC promulgated 

Wage Order No. 7-2001 (Wage Order), codified in the 

California Code of Regulations, which governs employees of 

the “mercantile industry” and sets forth criteria for 

determining whether an employee may be classified as an 

exempt executive:35 “(a) [His or her] duties and 

 

34 As explained in Brinker Restaurant Corp. v. Superior Court

(2012) 53 Cal.4th 1004: “Nearly a century ago, the Legislature 

responded to the problem of inadequate wages and poor working 

conditions by establishing the IWC and delegating to it the 

authority to investigate various industries and promulgate wage 

orders fixing for each industry minimum wages, maximum hours 

of work, and conditions of labor. [Citations.] Pursuant to its 

‘broad statutory authority’ [citation], the IWC in 1916 began 

issuing industry-and occupation-wide wage orders specifying 

minimum requirements with respect to wages, hours, and 

working conditions [citation]. . . . Consequently, 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.” (Brinker, supra, at p. 1026.) 

Although the IWC was defunded in 2004, its wage orders remain 

in effect. (Gonzalez v. Downtown LA Motors, LP (2013) 215 

Cal.App.4th 36, 43; California Correctional Peace Officers’ Assn. 

v. State of California (2010) 188 Cal.App.4th 646, 651.) 

35 “‘Mercantile [i]ndustry’” is defined as any business 

“operated for the purpose of purchasing, selling, or distributing 

goods or commodities at wholesale or retail; or for the purpose of 

renting goods or commodities.” (Cal. Code Regs., tit. 8, 11070, 

(Fn. continued on next page.)
55

responsibilities involve the management of the enterprise in 

which he/she is employed or of a customarily recognized 

department or subdivision thereof; and [¶] (b) [he or she] 

customarily and regularly directs the work of two or more 

employees therein; and [¶] (c) [he or she] has the authority to 

hire or fire other employees or [his or her] suggestions and 

recommendations as to the hiring or firing and as to the 

advancement and promotion or any other change of status of 

other employees will be given particular weight; and [¶] (d) 

[he or she] customarily and regularly exercises discretion 

and independent judgment; and [¶] (e) [he or she] is 

primarily engaged in duties which meet the test of the 

exemption . . . ; (f) Such an employee must also earn a 

monthly salary equivalent to no less than two (2) times the 

state minimum wage for full-time employment.” (Cal. Code 

Regs., tit. 8, § 11070, subd. (1)(A)(1).) 

The Wage Order states that exempt and non-exempt 

work “shall be construed in the same manner as such items 

are construed in the following regulations under the Fair 

Labor Standards Act effective as of the date of this order 

[2001]: 29 C.F.R. Section 541.102, 541.104-111, and 

541.115-116.” It also states that exempt work includes “all 

work that is directly and closely related to exempt work and 

work which is properly viewed as a means for carrying out 

 

subd. 2(H).) There is no dispute that respondent is in the 

mercantile industry.
56

exempt functions.” (Cal. Code Regs., tit. 8, § 11070, subd.

(1)(A)(1)(e).)

As this Court discussed in Heyen, supra, 216

Cal.App.4th 795, the 2001 version of section 541.102 of title 

29 of the Code of Federal Regulations includes a list of 

activities “easily recognized” as exempt, including 

“‘[i]nterviewing, selecting, and training of employees; setting 

and adjusting their rates of pay and hours of work; directing 

their work; maintaining their production or sales records for 

use in supervision or control; appraising their productivity 

and efficiency for the purpose of recommending promotions 

or other changes in their status; handling their complaints 

and grievances and disciplining them when necessary; 

planning the work; determining the techniques to be used; 

apportioning the work among the workers; determining the 

type of materials, supplies, machinery or tools to be used or

merchandise to be bought, stocked and sold; controlling the 

flow and distribution of materials or merchandise and 

supplies; providing for the safety of the men and the 

property.’” (216 Cal.App.4th at p. 819, quoting 29 C.F.R. 

§ 541.102(b) (2001).) Moreover, “exempt work includes not 

only the tasks necessary for the actual management of a 

department and the supervision of its employees, but also 

tasks that are ‘closely associated with the performance of the 

duties involved in such managerial and supervisory 

functions or responsibilities.’” (216 Cal.App.4th at p. 819, 

quoting 29 C.F.R. § 541.108(a) (2001).) 
57

The pertinent federal regulations discussed in Heyen

contain examples of exempt and non-exempt activities 

directly applicable here: “‘In a large retail establishment 

. . . , where the replenishing of stocks of merchandise on the 

sales floor is customarily assigned to a nonexempt employee, 

the performance of such work by the manager or buyer of the 

department is nonexempt.’” (Heyen, 216 Cal.App.4th at 

p. 820, quoting 29 C.F.R. § 541.108(c) (2001).) On the other 

hand, “‘a department manager or buyer in a retail or service 

establishment who goes about the sales floor observing the 

work of sales personnel under his supervision to determine 

the effectiveness of their sales techniques, checking on the 

quality of customer service being given, or observing 

customer preferences and reactions to the lines, styles, 

types, colors, and quality of the merchandise offered, is 

performing work which is directly and closely related to his 

managerial and supervisory functions. His actual 

participation, except for supervisory training or 

demonstration purposes, in such activities as making sales 

to customers, replenishing stocks of merchandise on the 

sales floor, removing merchandise from fitting rooms and 

returning to stock or shelves, however, is not.’” (Heyen,

supra, at pp. 820-821, quoting 29 C.F.R. § 541.108(e) (2001).)

The Wage Order defines “‘[p]rimarily’” (Cal. Code 

Regs., tit. 8, § 11070(1), subd. (A)(1)(e)) to mean “more than 

one-half the employee’s work time.” (Id., § 11070, subd. 
58

(2)(K).)36 It also specifies the following method to determine 

whether the employee is “primarily engaged in duties which 

meet the test of the exemption”: “The work actually 

performed by the employee during the course of the 

workweek must, first and foremost, be examined and the 

amount of time the employee spends on such work, together 

with the employer’s realistic expectations and the realistic 

requirements of the job, shall be considered in determining 

whether the employee satisfied this requirement.” (Cal. 

Code Regs., tit. 8, § 11070, subd. (1)(A)(1)(e).)

In Heyen, supra, 216 Cal.App.4th 795, we resolved 

whether the checking, bagging and stocking activities of a 

grocery store manager could be considered exempt if the 

manager was “‘also always still managing the store 

operations, including engaging in activities such as 

observing store operations and employee activities, and 

instructing employees in their assignments and any 

corrective measures that needed to be taken.’” (Id. at 

p. 825.) We concluded the employer’s proposed “‘multitasking’ standard” was contrary to California law: “[T]he 

federal regulations cited in Wage Order 7 expressly 

recognize that managers sometimes engage in tasks that do 

not involve the ‘actual management of the department [or] 

 

36 This is not a day-by-day analysis. The issue is whether the 

employees “spend more than 51% of their time on managerial 

tasks in any given workweek.” (Dunbar v. Albertson’s Inc. (2006) 

141 Cal.App.4th 1422, 1426.) 
59

the supervision of the employees therein.’ [Citation.] In 

those circumstances, the regulations do not say, as Safeway 

would have us hold, that those tasks should be considered 

‘exempt’ so long as the manager continues to supervise while 

performing them. Instead, the regulations look to the 

supervisor’s reason or purpose for undertaking the task. If a 

task is performed because it is ‘helpful in supervising the 

employees or contribute[s] to the smooth functioning of the 

department for which [the supervisors] are responsible’ 

[citation], the work is exempt; if not, it is nonexempt.” (216 

Cal.App.4th at p. 826, quoting 29 C.F.R. § 541.108(a), (c) 

(2001).) Put simply, “the regulations do not recognize 

‘hybrid’ activities -- i.e., activities that have both ‘exempt’ 

and ‘nonexempt’ aspects. Rather, the regulations require 

that each discrete task be separately classified as either 

‘exempt’ or ‘nonexempt.’ [Citations.]” (216 Cal.App.4th at 

p. 822, italics omitted.) 

We did not state, however, that the same task must 

always be labeled exempt or non-exempt: “[I]dentical tasks 

may be ‘exempt’ or ‘nonexempt’ based on the purpose they 

serve within the organization or department. Understanding the manager’s purpose in engaging in such tasks, or a 

task’s role in the work of the organization, is critical to the 

task’s proper categorization. A task performed because it is 

‘helpful in supervising the employees or contribute[s] to the 

smooth functioning of the department’ is exempt, even 

though the identical task performed for a different, 
60

nonmanagerial reason would be nonexempt.’ [Citation.]” 

(216 Cal.App.4th at pp. 822-823.)

In Ramirez v. Yosemite Water, Inc. Co. (1999) 20 

Cal.4th 785, our Supreme Court considered whether an 

employee fell into the exemption for an outside salesperson 

(Wage Order No. 7-80). In doing so, the Court clarified the 

provision found in multiple Wage Orders, including Wage 

Order No. 7-2001, requiring consideration of “the employer’s 

realistic expectations” and the “realistic requirements of the 

job”: “Is the number of hours worked in sales-related 

activities to be determined by the number of hours that the 

employer, according to its job description or its estimate, 

claims the employee should be working in sales, or should it 

be determined by the actual average hours the employee 

spent on sales activity? The logic inherent in the IWC’s 

quantitative definition of outside salesperson dictates that 

neither alternative would be wholly satisfactory. On the one 

hand, if hours worked on sales were determined through an 

employer’s job description, then the employer could make an 

employee exempt from overtime laws solely by fashioning an 

idealized job description that had little basis in reality. On 

the other hand, an employee who is supposed to be engaged 

in sales activities during most of his working hours and falls 

below the 50 percent mark due to his own substandard 

performance should not thereby be able to evade a valid 

exemption.” (20 Cal.4th at p. 802, italics omitted.) The trial 

court “must steer clear of these two pitfalls by inquiring into 

the realistic requirements of the job,” considering “first and 
61

foremost, how the employee actually spends his or her time.” 

(Ibid., italics omitted.) If the employee spends excessive 

time engaged in non-exempt activities, the trial court must 

then consider “whether the employee’s practice diverges 

from the employer’s realistic expectations, whether there 

was any concrete expression of employer displeasure over an 

employee’s substandard performance, and whether these 

expressions were themselves realistic given the actual 

overall requirements of the job.” (Ibid.)

 

2. The Evidence Below

Applying these principles, we conclude the trial court 

properly addressed the issues before it. It found that 

appellants clearly met three of the five criteria of Wage 

Order No. 7-2001: they supervised the entire stores or a subdepartment; they customarily and regularly directed the 

work of two or more employees, they had authority to hire or 

fire other employees or to make suggestions and 

recommendations as to hiring, firing, promotions or other 

changes in employees’ status, and they earned the requisite 

salary.37 With respect to whether they customarily and 

 

37 We reject appellants’ claim that there was no evidence their 

duties and responsibilities involved the management of the 

enterprise in which they were employed or a recognized 

department or subdivision of the enterprise (Cal. Code Regs., tit. 

8, § 11070, subd. (1)(A)(1)(a), or that they customarily and 

regularly directed the work of two or more other employees (id., 

§ 11070, subd. (1)(A)(1)(b)). The evidence established that Batze 

(Fn. continued on next page.)
62

regularly exercised discretion and independent judgment 

and were primarily engaged in exempt duties, the court 

waded through weeks of testimony from dozens of witnesses 

and a massive quantity of documentary evidence in 

concluding that respondent had met its burden of proving 

they did. The evidence supporting the court’s findings was 

carefully documented in its MSOD and outlined above. With 

respect to Batze, the testimony of his store manager, 

Michelle Macaluso, and the observational study provided 

substantial evidence that while working as a Second AM at 

the Clovis store (the only assignment under consideration 

due to the court’s statute of limitations ruling) Batze spent 

the majority of his time on managerial tasks.38 

 

was in charge of the entire store and the 10-member night crew 

during his shifts. As First AMs, Cesar and Hayes were 

responsible for the front-end and its employees. In addition, both 

had been responsible for entire stores during the store managers’ 

days off, vacations and leave, and had been acting store 

managers in some of their assignments. 

38 Appellants claim the observational study was faulty 

because it took place on a Monday, the day on which Macaluso 

held the weekly department manager’s meeting (which occupied 

37 minutes and 40 seconds of his time) and because it included a 

period of training on time and attendance corrections (18 minutes 

and 20 seconds) which they contend should have been deemed 

non-exempt. We believe the more germane statistic is the one 

showing that Batze spent only approximately 40 percent of his 

time building displays and stocking, activities which he claimed 

occupied nearly all his work time. According to Macaluso, 

Mondays were one of the three days of the week displays were 

(Fn. continued on next page.)
63

Cesar’s situation was more complex, as he had multiple 

assignments at multiple stores during the relevant claim 

period. But the evidence presented covered some aspect of 

each of his assignments. Janet Naverrette, who worked with 

him at the Dublin store, testified Cesar was in his office 50 

percent of the time dealing with managerial problems. She 

also saw him perform store walks up to two hours long, a 

task the court reasonably found exempt because of its 

importance to proper management of the stores. Beverly 

Gandolfo, who had been a stocker at the Livermore store 

during Cesar’s time there, did not recall his assisting her 

with that function with any regularity and testified there 

were sufficient hourly stockers to complete the task without 

the assistance of the AMs. There were no defense witnesses 

who worked alongside Cesar at Pleasanton, Pleasant Hill, 

Lafayette or Orinda, but respondent provided records 

showing that Cesar spent minimal time checking during that 

period. Cesar himself testified that he spent significant 

periods working at the front-end during his assignments to 

those stores, including nearly 100 percent of his time at the 

Pleasanton store. The court reasonably found that working 

at the front-end, except while actually checking, was a 

managerial assignment because it required the AM to 

 

built. From the fact that building displays occupied less than 

half of Batze’s time on a typical Monday, the court could 

reasonably conclude these tasks occupied significantly less time 

than Batze and the witnesses who supported him perceived.
64

observe and direct the checkers to ensure they were properly 

performing their jobs and providing superior customer 

service. Moreover, Cesar was acting manager of the entire 

store when he was at Pleasant Hill. Helen Carver testified 

concerning Cesar’s performance at Pleasant Hill and 

Lafayette, and explained that she transferred Cesar from 

Pleasant Hill to Lafayette and placed him on a PIP after 

Orinda because he was not meeting respondent’s managerial 

expectations. Numerous witnesses testified concerning 

Cesar’s performance at the Blackhawk/Danville store, 

including two managers: Steven Kozak and Kimberly 

Johnson. Both testified that Cesar spent his time primarily 

on managerial tasks. Finally, at his deposition, Cesar 

himself attested to his “typical” day at Alamo, supporting the 

determination that he spent only two to three hours on nonexempt tasks.39 This was confirmed by Susan Obenour, who 

estimated that Cesar worked in the office 30 to 55 percent of 

his time at that store.

Hayes worked at multiple stores as well, and evidence 

was presented that supported the court’s findings as to each 

of them. Joseph Chappelle, the store manager when Hayes 

was at the Arden Way store, and Camelia Chira, a co-worker 

there, both testified that Hayes spent the majority of his 

time -- up to 70 percent -- in the office. Lisa Lewis relieved 

 

39 Appellants contend Cesar’s deposition testimony indicated 

he spent additional time on non-exempt tasks, but cite only to the 

lodged deposition transcript, not to the trial record. 
65

Hayes as manager of the West Sacramento store and had 

him walk her through his duties as manager for two weeks. 

She testified he spent the majority of his time in the office on 

managerial tasks. Lewis had come from the Elk 

Grove/Laguna store to which Hayes was transferred and 

described her duties, which were primarily managerial. 

Several employees who observed Hayes at the Citrus 

Heights store -- district manager John Cain and co-workers 

Lance Feliciano and Melissa Mastalski -- testified he was 

primarily involved in managerial tasks.40 

Appellants do not dispute any of this evidence, but 

contend it was insufficient because it did not cover in weekby-week detail all periods in which they worked. Appellants 

point out that in challenging class certification, respondent 

argued that “‘managers were not trained uniformly,’” 

“‘[m]anagers [did] different jobs at different times,’” “‘[e]ven 

 

40 Appellants contend the court improperly inferred from the 

evidence that they engaged in specific non-exempt tasks for 

limited periods of time that they were engaged in exempt tasks 

the remainder of their time. We disagree. There were only a few 

non-exempt activities that appellants claimed occupied a 

significant portion of their workday: building/filling displays, 

stocking/facing shelves, and checking. The evidence presented by 

respondent refuting that appellant spent excessive time on these 

tasks supported the conclusion that appellants spent more time 

on the managerial portion of their jobs. Moreover, as the above 

discussion establishes, the court did not rely exclusively on this 

inference to establish the ratio between exempt and non-exempt 

activities. 
66

stores of similar size operate differently,’” and there were 

“‘many differences among [its] stores which affect the time 

spent on various job duties.’” The trial court adopted 

respondent’s arguments, at least in part, in concluding that 

“‘significant differences in the size of [the] various stores, 

both in dollar volume and physical configuration, to the 

seasonal nature of business at certain stores, to the 

differences in daily tasks allegedly flowing from variations in 

the managerial skills and experience of any given team of 

managers in a given store, both as to location and as to 

time,’” militated against class certification, as did the 

testimony showing that a number of managers “‘perform[ed] 

different duties and/or allocated the time differently among 

similar tasks depending on the store to which they were 

assigned.’” Appellants claim respondent is now taking a 

contrary position, “arguing that a single day at a single store 

could be used as a basis for inference and extrapolation, even 

without evidence of any of the myriad factors it previously 

claimed made such assumed facts impossible.” 

Our review of the record finds no such contradictory 

positions taken by respondent or adopted by the trial court. 

The evidence presented established that each appellant had 

varying duties. Batze was in charge, inter alia, of displays, 

which required him not only to build and fill them, a nonexempt task, but to deal with vendors and consider how 

displays could be used to the best advantage of his store. 

Neither Cesar nor Hayes spent a significant portion of his 

time building displays. Nor did either spend as much time 
67

in the back room as Batze, who had his office there in order 

to deal more efficiently with vendors and fulfill his 

responsibility of keeping the area organized. Both Cesar and 

Hayes spent more time managing the front-end of the store 

and ensuring checkers and courtesy clerks performed 

efficiently, while providing superior service to the customers. 

This required them to step in and out of the check stands, a 

non-exempt task Batze rarely performed as the bulk of his 

workday occurred before the store opened for customers. 

Batze spent little time scheduling, as his crew was fairly 

small, whereas Hayes spent a significant number of hours 

per week on this task at one of his stores, scheduling more 

than 70 employees. Both Hayes and Cesar had responsibility for their stores on the store manager’s days off or when 

the manager was on vacation or leave. Moreover, both had 

been acting store managers at various times, something 

Batze never experienced, and had significantly more 

responsibility for discipline than Batze. In reaching its 

conclusion, the court took all this evidence into account, 

including evidence of the variations in tasks from party to 

party and store to store. 

Appellants claim there were substantial gaps in the 

evidence that precluded a finding in respondent’s favor for 

every contested period of their employment. For example, 

appellants contend there was no defense evidence covering 

Batze for the period prior to 2004, when Macaluso became 

the store manager and the observational study was 

conducted. They further point to the lack of defense 
68

witnesses who directly observed Cesar for the periods he was 

assigned to Pleasanton, Pleasant Hill, Lafayette and Orinda, 

or for Hayes for part of the period he was assigned to the 

Arden Way store.41 As discussed, there was sufficient 

defense evidence from which the court could make 

reasonable inferences about how appellants spent their time 

at every store. Although the significant period for 

determining exempt status is the work week, and 

“‘employees’ exempt or non-exempt status can vary on a 

week by week basis’” (Dunbar v. Albertson’s Inc., supra, 141 

Cal.App.4th at p. 1426), this rule in no way suggests that the 

trier of fact may not make reasonable inferences about a 

party’s activities during the relevant period based on his or 

her activities in earlier and later periods, particularly where 

there is nothing to suggest the employee’s duties and 

responsibilities changed significantly. (See Leatherbury v. 

C&H Sugar Co. (N.D. Cal. 2012) 911 F.Supp.2d 872, 883-884 

[employee’s “description of his typical day” showed that “his 

primary duties were either the direct supervision of the 

union employees or other activities that were ‘directly and 

closely related to exempt work’ or were ‘a means for carrying 

 

41 Appellants primarily fault respondent for failing to present 

witnesses for periods the court found to be outside the statute of 

limitations, for example, Batze’s time at the Blackstone store 

from 1998 to 2000, Cesar’s time at the Walnut Creek/Bancroft 

store in 2001 and 2002, and Hayes’s time as a Second AM. 

Because we find no error in the trial court’s statute of limitations 

determination, we do not consider these periods.
69

out exempt functions or [were] closely related to the 

supervision of the union employees’”]; Maddock v. KB 

Homes, Inc. (C.D. Cal. 2007) 248 F.R.D. 229, 242 [when 

classifying employees as exempt or non-exempt, California 

law “calls first for an individualized inquiry into the work 

actually performed in a typical workweek by the employee to 

determine how much of that work is exempt”].) Here, 

neither Batze nor Hayes testified that his responsibilities 

varied markedly from store to store or week to week, and 

Cesar affirmatively testified that his responsibilities did not. 

In short, the evidence amply supported the court’s conclusion 

that in all their assignments, appellants’ work was primarily 

managerial and thus exempt.

Similarly supported was the court’s finding that to the 

extent appellants spent excessive amounts of time 

performing tasks that could have been performed by hourly 

workers, respondent realistically expected them to be 

engaged primarily in managerial activities. (See Ramirez, 

supra, 20 Cal.4th at p. 802 [“[A]n employee who is supposed 

to be engaged in [exempt] activities during most of his 

working hours and falls below the 50 percent mark due to 

his own substandard performance should not thereby be able 

to evade a valid exemption”].) The court cited the extensive 

and costly management training respondent provided most 

new managers, the contents of the RLD program, the 

numerous managerial responsibilities assigned to the AMs, 

the size and complexity of the stores, the testimony of 

multiple managerial employees that they had no trouble 
70

meeting the operating ratio, providing good customer 

service, keeping the check lines moving, the shelves stocked 

and the stores clean and organized without doing the work 

themselves or relying excessively on salaried employees, the 

evidence that stores suffered when managerial employees 

spent too much time on non-exempt tasks, and the evidence 

that Cesar in particular had been criticized for performing 

hourly work rather than attending to managerial duties. 

The court’s finding as to respondent’s realistic expectations, 

amply justified by the evidence, further supports the 

determination that appellants were exempt employees. 

Appellants claim the trial court improperly placed on 

them the burden of proving that they performed non-exempt 

work. They point to its citation to the 1993 DLSE letter 

suggesting a presumption arises that an employee’s duties 

are exempt if he or she “‘fulfills all of the other requirements 

of the managerial or executive exemption . . . .’” 

(Underscoring omitted.) They further contend the court’s 

references to respondent’s “‘[r]ealistic [e]xpectations’” 

indicate it used respondent’s expectations to create a 

presumption that the majority of tasks performed were 

exempt. The lengthy MSOD leaves no doubt that the court 

understood and applied the appropriate burden of proof. 

Indeed, it reiterated that burden throughout its decision.42 

 

42 On the second page of the MSOD, the court stated that 

“with the exception of a few discrete . . . workweeks -- Safeway 

has met its burden of proof with respect to these plaintiffs.” On 

the following page, it noted: “Both sides agree that the 

(Fn. continued on next page.)
71

In addition to clearly and repeatedly articulating the correct 

burden of proof, the court carefully outlined the evidence on 

which it relied in finding that appellants performed exempt 

tasks the majority of the time. In short, appellants’ claim 

that the court erroneously shifted the burden of proof is 

belied by the record.

Appellants claim the court improperly categorized the 

three work activities frequently engaged in by AMs: 

managing out-of-stocks, store walks, and working at the 

front-end.

43 They contend that scanning the bar codes for 

 

defendants have the burden of proof with respect to their 

affirmative defense to the effect that the plaintiffs meet the 

requirements for the executive exemption . . . .” As to the 

individual appellants, the court found: (1) “that [respondent] has 

met its burden with respect to Gary Batze”; (2) that “[t]he 

evidence preponderates that for the majority of the weeks in 

question, Carlo Cesar spent more than fifty percent of his time 

engaged in exempt activities,” but that as to certain weeks, 

“[respondent] has not met its burden of proof”; and (3) that with 

the exception of two pay periods, “[respondent] . . . has met its 

burden with respect to Justin Hayes.” On the 99th page of the 

101-page decision, the court states: “Here most of the evidence 

preponderates in favor of the defendants, with the conclusion 

that they have met their burden of proof.” 

43 Appellants contend that in this regard, the trial court 

disregarded Heyen. The same trial judge presided over the trial 

in Heyen, where we affirmed his ruling that an employee cannot 

be seen as simultaneously performing exempt and non-exempt 

tasks, i.e., “‘actively . . . manag[ing] the store while also 

concurrently performing some checking and bagging of customer 

grocery purchases.’” (Heyen, supra, 216 Cal.App.4th at p. 799.) 

(Fn. continued on next page.)
72

out-of-stock products should have been deemed a nonexempt activity because it is routinely done by hourly 

employees. The court recognized that this task could be 

done by hourly employees. When performed occasionally by 

an AM, however, the court concluded that walking the aisles 

scanning out-of-stocks was exempt because it assisted the 

AM to fulfill his or her managerial responsibility for 

determining when and where out-of-stocks occur and 

minimizing them. The regulations permit the trier of fact to 

make such distinctions. (See Cal. Code Regs., tit. 8, § 11070, 

subd. (1)(A)(1)(e) [“Exempt work shall include . . . all work 

that is directly and closely related to exempt work and work 

which is properly viewed as a means for carrying out exempt 

functions.”]; Heyen, supra, 216 Cal.App.4th at p. 822 

[“[I]dentical tasks may be ‘exempt’ or ‘nonexempt’ based on 

the purpose they serve within the organization or 

department. Understanding the manager’s purpose in 

engaging in such tasks, or a task’s role in the work of the 

organization, is critical to the task’s proper categorization. A 

task performed because it is ‘helpful in supervising the 

employees or contribute[s] to the smooth functioning of the 

department’ is exempt, even though the identical task 

 

Nothing in the MSOD suggests the trial court included time 

spent on non-exempt tasks when calculating whether managerial 

tasks occupied more than 50 percent of each appellant’s workday, 

or that the court believed an employee could be engaged in both 

exempt and managerial activities simultaneously. 
73

performed for a different, nonmanagerial reason would be 

nonexempt”].) 

Appellants claim that store walks should have been 

deemed non-exempt because they might involve cleaning, 

fixing displays, stocking shelves or returning products to the 

correct shelves. The court found that the “long” store walks, 

the walks lasting “from two to two and a half hours,” were 

“the chief method a manager uses to determine what is going 

on in the store and where (and with whom) he needs to 

devote attention,” that the walks “offer an opportunity to 

interact with employees, survey the merchandise and spot 

needs, especially with respect to the all important out-ofstocks,” and that “[a] momentary pause” during a lengthy 

walk conducted for these purposes did not “turn the activity 

from exempt to non-exempt.” That managerial employees 

performed lengthy store walks once or twice a day for the 

purpose of talking to department heads and other 

employees, assessing the condition of the store and 

determining the problems that needed to be addressed 

throughout the store that day, was established by the 

testimony of numerous witnesses, and supported the court’s 

categorization of store walks as exempt tasks.

Appellants similarly claim that time spent at the frontend was non-exempt, contending it was “uncontroverted” 

that much of their front-end time was spent checking, 

bagging and performing other routine services for customers. 

To the contrary, the evidence established that AMs were put 

at the front to improve customer service by observing the
74

checkers and courtesy clerks to determine whether they 

were working efficiently and providing satisfactory customer 

service. AMs were told to stand in one place to observe and 

manage, not to check. Moreover, as appellants acknowledge, 

if circumstances required an AM to step in to check, that 

time was recorded on the checking data submitted by 

respondent. The trial court reviewed that data carefully and 

concluded that with minimal exceptions, appellants were not 

required to spend excessive time checking.

B. The court properly rejected Hayes’s and Batze’s 

claims for work performed during the strike.

Section 541.706 of title 29 of the Code of Federal 

Regulations (formerly 29 C.F.R. § 541.109) (2004) provides 

that “[a]n exempt employee will not lose the exemption by 

performing work of a normally nonexempt nature because of 

the existence of an emergency.” A employee strike, even a 

lengthy one, can constitute an emergency. (See Dunlop v. 

Western Union (D.N.J. Jan. 28, 1976) 1976 U.S. Dist. LEXIS 

16956, *4 [facts must be analyzed in evaluating whether a 

lengthy strike constitutes an emergency; court cannot simply 

presume it loses its emergency status after set amount of 

time].) 

The court ruled that the strike constituted an 

emergency under the regulations. It further ruled that the 

period Hayes spent replacing striking employees was beyond 

the statute of limitations for his complaint, filed in October 

2008. With respect to Batze, the court found not credible his 
75

testimony that he worked lengthy hours replacing striking 

workers in Lake Isabella and Bakersfield. Batze was 

impeached by his own calendar and by checking data 

showing him working in Clovis during the strike. In 

addition, Macaluso denied that Batze had been sent to other 

stores to work after she arrived in January 2004. The 

court’s finding was supported by substantial evidence, and 

its decision to credit respondent’s evidence over Batze’s 

testimony “with respect to how Batze spent his time and how 

long he worked” was within its purview as the trier of fact. 

C. The trial court did not err in finding the statute of

limitations was not tolled.

Appellants contend that under the rule of American 

Pipe & Construction Co. v. Utah (1974) 414 U.S. 538 

(American Pipe), the statute of limitations was tolled from 

the date the Knoch action was filed in 2002 until the trial 

court’s order denying class certification was filed in 

September 2008, and that their work assignments dating 

back to 1998 should have been at issue. We conclude the 

court properly analyzed the tolling issue under the relevant 

authorities. 

In American Pipe, the United States Supreme Court 

held that under certain limited circumstances, the filing of a 

class action lawsuit could toll the statute of limitations with 

respect to individual members of the putative class who 

made timely motions to intervene after the court denied 

certification. (American Pipe, supra, 414 U.S. at pp. 552-
76

553.) In Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103 

(Jolly), the California Supreme Court considered whether

and when to apply that rule in line with its view that “in the 

absence of controlling state authority, California courts 

should utilize the procedures of rule 23 of the Federal Rules 

of Civil Procedure,” and concluded: “The presumption . . . 

should be . . . that lack of commonality will defeat 

certification and preclude application of the American Pipe

tolling doctrine.” (44 Cal.3d at pp. 1118, 1125.) Thus, 

“putative class members would be ill advised to rely on the 

mere filing of a class action complaint to toll their individual 

statute of limitations.” (Id. at p. 1125.) A trial court may, 

nonetheless, apply tolling to save untimely claims. But in 

doing so, the court must address “two major policy 

considerations.” The first is “protection of the class action 

device,” which requires the court to determine whether the 

denial of class certification was “unforeseeable by class 

members,” or whether potential members, in anticipation of 

a negative ruling, had already filed “‘protective motions to 

intervene or to join in the event that a class was later found 

unsuitable,’ depriving class actions ‘of the efficiency and 

economy of litigation which is a principal purpose of the 

procedure.’” (Jolly, supra, at 1121, quoting American Pipe, 

supra, at p. 553.) The second consideration is “effectuation 

of the purposes of the statute of limitations,” and requires 

the court to determine whether commencement of the class 

suit “‘notifie[d] the defendants not only of the substantive 

claims being brought against them, but also of the number 
77

and generic identities of the potential plaintiffs who may 

participate in the judgment.’ [Citation.] In these 

circumstances, . . . the purposes of the statute of limitations 

would not be violated by a decision to toll.” (Jolly, supra, at 

p. 1121, quoting American Pipe, supra, at pp. 554-555.)44

Here, class certification was denied due to lack of 

commonality, giving rise to a presumption that American 

Pipe tolling should not apply. The trial court, nonetheless, 

considered whether to do so under the standards set forth in 

Jolly. It found the discrepancies between the claims of the 

members of the putative class were “too great for the Knoch

action to have put [respondent] on notice that it needed to 

preserve evidence with respect to every one of its managers 

and assistant managers,” that respondent had no way of 

predicting which of the thousands of managerial employees 

 

44 The California Supreme Court applied these rules to 

conclude that the statute was not tolled in the case before it -- a 

mass tort action for personal injury. “Because of the nature of 

the [original] complaint . . . and the differences in issues of fact 

and law . . . the [original] class suit [citation] could not have 

apprised defendant of plaintiff’s substantive claims” nor “put 

defendants on notice of allegations related to personal injury 

within the statutory period of limitation so that they might 

prepare their defense.” (Jolly, supra, 44 Cal.3d at pp. 1123-

1224.) Although the Supreme Court did not specify a standard of 

review, the principles under which the tolling determination are 

to be made are equitable, and we generally review a trial court’s 

decision to grant or deny equitable relief for abuse of discretion. 

(County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215, 

1230.)
78

holding multiple positions in hundreds of locations would 

believe themselves to have been deprived of overtime and 

decide to bring a suit, and that it would have been 

unrealistic to expect that the filing of the Knoch action would 

have prompted respondent to maintain all employment 

records relating to every managerial employee or to gather 

evidence and witness statements pertaining to every 

managerial employee. 

The evidence presented bore out the court’s 

conclusions. Each appellant relied on different facts and 

different scenarios, and there was little overlap in the 

evidence to support the respective claims. Moreover, 

numerous managers and AMs testified that the majority of 

their workdays was spent attending to managerial duties. 

Respondent could not have anticipated who might be a 

member of the putative class when the Knoch action was 

filed in 2002, and thus had no realistic opportunity to 

prepare a defense for the potential claimants. The fact that 

nearly 200 plaintiffs had already brought individual claims 

before the class certification was denied adds further support 

to the trial court’s ruling, as it demonstrates that denial of 

class certification was not unforeseen. The court also found 

that Cesar and Hayes unreasonably delayed asserting their 

claims after certification was denied, adding to the prejudice 

to respondent of defending stale claims. Under these 

circumstances we discern no error in the trial court’s 

determination that the statute of limitations was not tolled. 
79

DISPOSITION

The judgment is affirmed. Respondent is awarded 

costs on appeal.

CERTIFIED FOR PUBLICATION

MANELLA, J.

We concur:

EPSTEIN, P. J.

WILLHITE, J.