Filed 10/10/19 (unmodified opn. attached)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

GUSTAVO NARANJO et al.,

Plaintiffs and Appellants,

v.

SPECTRUM SECURITY 

SERVICES, INC.,

Defendant and Appellant.

 B256232

 (Los Angeles County

 Super. Ct. No. BC372146)

 ORDER MODIFYING 

 OPINION AND

 DENYING PETITION

 FOR REHEARING; NO

 CHANGE IN 

 JUDGMENT

THE COURT:

The opinion filed in the above-entitled matter on September 26, 2019, is 

ordered MODIFIED as follows:

On page 42, the first three sentences of the second paragraph of Part 

IV.A are deleted and replaced with the following:

At all times relevant to this action, Spectrum’s written policies did not 

authorize off-duty rest breaks. Pre-Memorandum 33, Spectrum’s SOP and 

SOPP advised, “This job does not allow for breaks other than using the 

hallway bathrooms for a few minutes.” Memorandum 33 stated, “rest periods 

are provided ‘On-Duty.’”

This modification does not change the judgment.
2

The petition for rehearing is DENIED.

____________________________________________________________

WILLHITE, Acting P. J., CURREY, J., DUNNING, J.*

* Retired judge of the Orange Superior Court, assigned by the Chief 

Justice pursuant to article VI, section 6 of the California Constitution.
Filed 9/26/19 (unmodified opinion)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

GUSTAVO NARANJO et al.,

Plaintiffs and Appellants,

v.

SPECTRUM SECURITY 

SERVICES, INC.,

Defendant and Appellant.

 B256232

 (Los Angeles County

 Super. Ct. No. BC372146) 

APPEAL and cross-appeal from a judgment of the Superior Court 

of Los Angeles County, John A. Kronstadt and Barbara M. Scheper, 

Judges. Affirmed in part and reversed in part with directions.

Marsili Rapp, Howard Z. Rosen, Brianna M. Primozic and Jason 

C. Marsili for Plaintiffs and Appellants.

Carothers DiSante & Freudenberger, Dave Carothers and Steven 

A. Micheli for Defendant and Appellant.
2

INTRODUCTION

Named plaintiff and class representative Gustavo Naranjo and a 

certified class of former and current employees took their lawsuit 

against defendant Spectrum Security Services, Inc. (Spectrum) to trial. 

They alleged Labor Code section 226.71 meal break violations and 

sought premium wages, derivative remedies pursuant to sections 203 

(waiting time penalties) and 226 (itemized wage statement penalties), 

and attorney fees. The results were mixed, and both sides appeal. 

We hold: (1) at-will, on-call, hourly, nonexempt employees who 

are paid for on-duty meal periods are also entitled to premium wages if 

the employer does not have a written agreement that includes an onduty meal period revocation clause (§ 226.7); (2) unpaid premium wages 

for meal break violations accrue prejudgment interest at seven percent; 

(3) unpaid premium wages for meal break violations do not entitle 

employees to additional remedies pursuant to sections 203 and 226 if 

their pay or pay statements during the course of the violations include 

the wages earned for on-duty meal breaks, but not the unpaid premium 

wages; (4) without section 226 penalties, attorney fees pursuant to 

section 226, subdivision (e) may not be awarded; and (5) the trial court 

prejudicially erred in denying certification of a rest break class.

FACTUAL AND PROCEDURAL BACKGROUND

Spectrum contracts exclusively with federal agencies. Its officers 

take temporary custody of federal prisoners and ICE (Immigration and 

1 All undesignated statutory citations refer to the Labor Code.
3

Customs Enforcement) detainees who must travel offsite for medical 

treatment or other appointments, and they provide continuous 

supervision until the individuals are returned to their custodial 

locations. Spectrum officers also guard witnesses awaiting court 

appearances. In Spectrum parlance, the individuals they transport and 

guard are referred to as “posts”; i.e., a post is a person, not a location. 

Spectrum’s officers are at-will, on-call, hourly, nonexempt 

employees. Spectrum’s company policy has always required on-duty 

meal periods, for which the employees are paid at their regular rate. 

Although Spectrum typically assigns two officers or an officer and 

supervisor to each post, Spectrum officers cannot leave the room or 

building where their post is located. On occasion, they can coordinate 

with other Spectrum officers and go nearby to eat or pick up food for 

themselves and colleagues, but they must remain on-call and within 

radio range. 

For the relevant time period before October 1, 2007, Spectrum had 

two different employee manuals. The first was the Standing 

Operational Procedures (SOP) manual. The SOP was replaced in 2006 

with the SOPP (Standing Operational Procedures and Policies) manual. 

The “Work Breaks” sections in both manuals contained the following 

introductory language: “This job does not allow for breaks other than 

using the hallway bathrooms for a few minutes.” The SOP and SOPP 

included similar meal break policy language, with a short list of “do’s” 

and a longer list of “don’ts.” Neither the SOP nor the SOPP included a 

written advisement that employees could revoke, in writing, the on-duty 

meal break policy agreement at any time.
4

Employees did not sign the SOP or SOPP. They did sign a 

separate document acknowledging their receipt and careful 

examination of the SOP or SOPP, as well as a variety of other Spectrum 

documents. 

“Memorandum 33” was issued on October 1, 2007, after this 

lawsuit was filed. This one-page document addressed only meal and 

rest breaks. Unlike the SOP and SOPP, Memorandum 33 advised, 

“Meal and rest periods must be taken.” It reaffirmed Spectrum’s 

longstanding policy that meal and rest periods were “on duty.” 

Memorandum 33 included the following paragraph above the employee 

signature line: “I agree to accept ‘paid On-Duty’ meal periods during 

my employment with [Spectrum]. I understand that this agreement 

may be revoked in writing at any time. However, I also understand 

that due to the nature of work performed by Spectrum, agreeing to ‘OnDuty’ meal periods is a condition of continued employment. I further 

understand that this agreement does not create a guarantee for 

continued employment and does not change my at-will employment 

status with Spectrum.”

Naranjo began working for Spectrum in December 2006. He was 

terminated in May 2007 after he left his post for a meal break. 

Naranjo filed this lawsuit as a putative class action the following 

month, alleging Spectrum failed to provide its security personnel with 

meal and rest breaks, as required by section 226.7 and Industrial Wage 

Commission (IWC) Wage Order No. 4-2001 (Cal. Code Regs., tit. 8, 

§ 11040 (Wage Order 4). Before Naranjo filed his motion for class 

certification, Spectrum was granted summary judgment on the basis 
5

that all causes of action were preempted by the McNamara-O’Hara 

Service Contract Act of 1965 (41 U.S.C. § 351 et seq.). This court 

rejected Spectrum’s federal preemption/lack of jurisdiction arguments 

based on the Service Contract Act, reversed as to the causes of action 

based on alleged Labor Code violations (§§ 203, 226, and 226.7), and 

otherwise affirmed. (Naranjo v. Spectrum Security Services, Inc. (2009) 

172 Cal.App.4th 654, 667-668 (Naranjo I).)

Naranjo’s class certification motion was heard before the Supreme 

Court issued its decision in Brinker Restaurant Corp. v. Superior Court 

(2012) 53 Cal.4th 1004 (Brinker). The trial judge granted the motion in 

part and denied it in part. A class of “‘all non-exempt detention officers 

and security officers employed by Spectrum in California during the 

Class Period of June 4, 2004 to the present’” was certified as to the first 

cause of action (meal period violations (§ 226.7)), third cause of action 

(waiting time penalties (§ 203)), and fourth cause of action (itemized 

wage statements (§ 226)). The trial court qualified Naranjo as the class 

representative and the law firm of Posner & Rosen as class counsel. 

The trial court declined to include the second cause of action for 

alleged rest break violations in the class certification order. The trial 

court acknowledged Spectrum’s companywide policy not to permit dutyfree rest breaks; but nevertheless found that common questions did not 

predominate, which meant Naranjo’s claims were not typical and the 

class action format was not the superior means to resolve the rest break 

claim. The trial court was persuaded that common fact issues did not 

predominate because “some of the declarants on [Spectrum’s] side 

assert that [Spectrum] did permit duty-free rest breaks.” The following 
6

year, post-Brinker, the new trial judge declined to revisit the denial of 

Naranjo’s motion to certify a rest break class.

The parties stipulated to try the lawsuit in three phrases.2 The 

first phase was a bench trial involving several Spectrum affirmative 

defenses. Spectrum lost. As the phase one rulings are not implicated in 

this appeal, we forgo a discussion of them.

Next, the meal break class cause of action was tried to a jury. The 

meal break class spanned the period from June 4, 2004 through the 

time of trial and consisted of two subclasses. The “pre-Memorandum 

33” subclass included employees who worked through September 30, 

2007; the “Memorandum 33” subclass included employees who signed 

that agreement, effective October 1, 2007. 

The pre-Memorandum 33 subclass, insisting its members worked 

without a legally compliant meal break policy, filed a series of motions 

in limine. At the trial court’s invitation, Spectrum made an offer of 

proof. The trial court considered the arguments and documents and 

excluded the proffered evidence. 

At the close of testimony, the trial court granted a directed verdict 

in favor of the pre-Memorandum 33 meal break subclass: “Spectrum 

2 Before the first phase, Spectrum filed a declaratory relief action against 

Naranjo and the Department of Homeland Security in the United States 

District Court for the Southern District of California. Spectrum took the 

position there, as it did earlier in this case, that employees worked pursuant 

to federal government contracts and were not bound by California labor laws. 

The federal district court granted dismissed the entire action for lack of 

subject matter jurisdiction. (Spectrum Security Servs. v. Naranjo (S.D.Cal. 

Oct. 4, 2012, No. 312-CV-425-JM) 2012 U.S.Dist. Lexis 193485.)
7

failed to comply with the requirements of the wage order since it had no 

written agreement with its employees by which employees agreed to the 

on-duty meal period and were advised that their agreement could be 

revoked in writing. Spectrum argued that its written policy and 

procedure manuals consistently advised employees that meal periods 

would be on duty. In addition, according to Spectrum, employees could 

in effect revoke their agreement to the on-duty meal period by declining 

to accept an assignment on any given day or to request not to be 

scheduled for a particular day. Although the [trial] court does not 

disagree that the foregoing facts were proven by Spectrum, . . . [t]he 

combination of policies and procedures along with the on-call status of 

employees is not a substitute for the mandated written agreement.”

With this ruling, and based on Murphy v. Kenneth Cole 

Productions, Inc. (2007) 40 Cal.4th 1094 (Murphy), the parties 

stipulated the pre-Memorandum 33 meal break subclass was owed 

$1,393,314 in premium pay for the period from June 4, 2004 until 

September 30, 2007. The jury returned a verdict in Spectrum’s favor 

against the Memorandum 33 subclass. 

The third phase, again a bench trial, concerned only the preMemorandum 33 meal break subclass and the two Labor Code 

derivative causes of action−section 203’s waiting time penalties and 

section 226’s itemized wage statement penalties. Relying again on 

Murphy’s holding that premium pay awarded to employees for 

noncompliant meal break policies is a wage and not a penalty for 
8

statute of limitations purposes, the trial court determined sections 203 

and 226 were potentially applicable.3 

Because Spectrum failed to pay the pre-Memorandum 33 meal 

break subclass a one-hour premium for each workday the noncompliant 

meal break policy was in effect, that sum was not reflected in 

employee’s paychecks. The trial court concluded this failure was 

“knowing and intentional,” pursuant to section 226, entitling the preMemorandum 33 meal break subclass to itemized wage statement 

penalties. The parties stipulated the section 226 penalty was $399,950. 

Section 203, unlike section 226, requires a finding of willfulness by 

the employer before penalties may be assessed. The trial court 

determined Spectrum’s failure to include the meal break premium wage 

in the final paychecks of employees who separated from the company 

was not willful and ruled in Spectrum’s favor on the section 203 waiting 

time penalties claim. 

Judgment was entered January 31, 2014. The trial court awarded 

prejudgment and postjudgment interest, each at 10 percent. As named 

plaintiff and class representative, Naranjo received a $10,000 

service/enhancement payment. Class counsel Posner & Rosen were 

3 Section 203, subdivision (a) provides for a penalty of up to 30 days of 

wages “[i]f an employer willfully fails to pay, [when due,] any wages of an 

employee who is discharged or who quits.”

Section 226, subdivision (e)(1) authorizes a penalty payable to 

employees “suffering injury as a result of a knowing and intentional failure 

by an employer to [provide accurate and complete information]” in the 

statutorily required itemized wage statements.
9

awarded attorney fees as part of the judgment pursuant to section 226, 

subdivision (e), albeit in an amount less than requested. 

Both sides appeal from the judgment. Spectrum challenges its 

liability for premium wages to the pre-Memorandum 33 meal break 

subclass and for section 226 itemized wage statement penalties, the 

stipulated premium wage award, the award of prejudgment interest, 

and the section 226, subdivision (e) award of attorney fees to class 

counsel. The pre-Memorandum 33 meal break subclass attacks the 

denial of section 203 waiting time penalties and the trial court’s 

decision to apportion and reduce the attorney fees. Pursuant to Code of 

Civil Procedure section 906, Naranjo also seeks review of the 

intermediate order denying certification of the proposed rest break 

class. 

DISCUSSION

I. At-will, On-call, Hourly, Nonexempt Employees who are Paid 

for On-duty Meal Periods also Are Entitled to Premium Wages 

if the Employer Does Not Have a Written Agreement with an 

On-duty Meal Period Revocation Clause

A. Overview and Standard of Review

California’s wage and hour protections for employees include 

guaranteed meal and rest periods. (Brinker, supra, 53 Cal.4th at p. 

1017.) These guarantees are set forth in the Labor Code (§ 512) and 

IWC wage orders. Wage orders are “legislative regulations specifying 

minimum requirements with respect to wages, hours, and working 

conditions.” (Augustus v. ABM Security Services, Inc. (2016) 2 Cal.5th 
10

257, 262, fn. 5 (ABM Security).) Wage orders represent the IWC’s 

interpretation of Labor Code provisions (Ramirez v. Yosemite Water Co.

(1999) 20 Cal.4th 785, 801 (Yosemite Water) and have the same force 

and effect as statutes (Alvarado v. Dart Container Corp. of California

(2018) 4 Cal.5th 542, 552). Together, the Labor Code and IWC wage 

orders provide “complementary and occasionally overlapping sources of 

authority.” (Brinker, at p. 1026.) 

We review de novo trial court interpretations of the Labor Code 

and IWC wage orders. (ABM Security, supra, 2 Cal.5th at p. 262.) We 

generously construe statutory and regulatory provisions in favor of 

protecting employee rights (ibid.) and accord IWC interpretations 

“considerable judicial deference” (Yosemite Water, supra, 20 Cal.4th at 

p. 801).

Additionally, our review is assisted by Division of Labor 

Standards Enforcement (DLSE) opinion letters. The DLSE enforces the 

Labor Code and IWC wage orders and issues written opinion letters 

interpreting the latter. (Morillion v. Royal Packing Co. (2000) 22 

Cal.4th 575, 581.) Although DLSE opinion letters do not receive the

same deferential treatment as IWC wage orders, they frequently offer 

valuable guidance for courts tasked with independent review of Labor 

Code and wage order provisions. (Brinker, supra, 53 Cal.4th at p. 1029, 

fn. 11.) 
11

B. Governing Principles—Mandatory Meal Periods

Mandatory meal and rest period laws and regulations are 

motivated by concerns for employee health and safety to ensure that 

employees have “time free from employer control . . . to be able to 

accomplish important personal tasks.” (Murphy, supra, 40 Cal.4th at p. 

1113.) For this reason, meal breaks typically are “off the clock” and 

represent unpaid time during the employee’s workday. The traditional 

remedy for a meal break violation has been injunctive relief. (Id. at pp. 

1113, 1105.)

With the enactment of section 226.7 in 2000, however, the 

Legislature authorized monetary remedies for violations of meal and 

rest break laws and regulations. (Brinker, supra, 53 Cal.4th at p. 

1017.) During the timeframe relevant to this litigation, section 226.7, 

subdivision (b) read as follows: “If an employer fails to provide an 

employee a meal period . . . in accordance with an applicable order of 

the [IWC], the employer shall pay the employee one additional hour of 

pay at the employee’s regular rate of compensation for each work day 

that the meal or rest period is not provided.”4

4 These requirements are now found in subdivision (c) of section 226.7, 

which reads in relevant part: “If an employer fails to provide an employee a 

meal . . . period in accordance with a state law, including, but not limited to, 

an applicable statute or applicable regulation, standard, or order of the 

[IWC], the Occupational Safety and Health Standards Board, or the Division 

of Occupational Safety and Health, the employer shall pay the employee one 

additional hour of pay at the employee’s regular rate of compensation for 

each workday that the meal . . . period is not provided.”
12

Subdivision 11(A) of Wage Order 4 specifies, “Unless the employee 

is relieved of all duty during a 30 minute meal period, the meal period 

shall be considered an ‘on duty’ meal period and counted as time 

worked. An ‘on duty’ meal period shall be permitted only when the 

nature of the work prevents an employee from being relieved of all duty 

and when by written agreement between the parties an on-the-job paid

meal period is agreed to. The written agreement shall state that the 

employee may, in writing, revoke the agreement at any time.” 

Subdivision 11(B) adds, “If an employer fails to provide an employee a 

meal period in accordance with the applicable provisions of this order, 

the employer shall pay the employee one (1) hour of pay at the 

employee’s regular rate of compensation for each workday that the meal 

period is not provided.” (Cal. Code Regs., tit. 8, § 11040, subd. 11(A), 

(B), italics added.)

C. Governing Principles—On-Duty Meal Breaks

The Legislature and IWC recognize certain occupations do not 

lend themselves to providing employees with off-duty meal breaks. 

Wage Order 4 authorizes on-duty meal breaks if the conditions in 

subdivision 11(A) set forth above are met. The Supreme Court has 

described the on-duty meal period exception as “exceedingly narrow, 

applying only when (1) ‘the nature of the work prevents an employee 

from being relieved of all duty’ and (2) the employer and employee have 

agreed, in writing, to the on-duty meal period. [Citation.] Even then, 

the employee retains the right to ‘revoke the agreement at any time.’” 

(ABM Security, supra, 2 Cal.5th at pp. 266-267.) 
13

The DLSE has opined that “blanket” agreements for on-duty meal 

periods are acceptable, so long as they “expressly state that the 

employee may, in writing, revoke the agreement at any time, as 

required under [the applicable ] Wage Order.” (Meal Periods for Fuel 

Carriers Subject to Federal Safety Regulations (June 9, 2009), p. 9, 

<https://www.dir.ca.gov/dlse/opinions/2009-06-09.pdf> (Fuel Carriers).) 

Fuel Carriers also advises that an on-duty meal period is “counted as 

time worked. Furthermore, unless the conditions are met for an onduty meal period as required under [the] Wage Order . . . [the employee 

is] entitled to one additional hour of pay at the employee’s regular rate 

of compensation” pursuant to section 226.7. (Id. at pp. 5-6.) 

Brinker explained that once an employee has been on the job “for 

five hours, an employer is put to a choice: it must (1) afford an off-duty 

meal period; (2) consent to a mutually agreed-upon waiver if one hour or 

less will end the shift; or (3) obtain written agreement to an on-duty 

meal period if circumstances permit. Failure to do one of these will 

render the employer liable for premium pay. (§ 226.7, subd. (b); Wage 

Order No. 5, subd. 11(A), (B).)” (Brinker, supra, 53 Cal.4th at p. 1039.) 

In this regard, Brinker quoted with approval the following excerpt from 

the amicus brief DLSE submitted in that case: “‘The employer that 

refuses to relinquish control over employees during an owed meal 

period violates the duty to provide the meal period and owes 

compensation [and premium pay] for hours worked.’” (Id. at p. 1040, fn. 

19.)
14

To summarize, employees who sign on-duty meal agreements that 

include a right-to-revoke clause are entitled to be paid their regular 

wages for every on-duty meal period, but they are not entitled to onehour of premium pay.5 However, if all the requirements for a compliant 

on-duty meal period are not met, e.g., there is no signed agreement with 

a right-to-revoke clause, the employer owes employees their regular 

wage for working during the meal break, plus one hour of premium pay 

for every workday the meal break policy was noncompliant, also at the 

employees’ regular rate of compensation. (Wage Order 4, subd. 11(A); 

Kaanaana v. Barrett Business Services, Inc. (2018) 29 Cal.App.5th 778, 

802, review granted on another issue Feb. 27, 2019, S253458

(Kaanaana); Zakaryan v. The Men’s Wearhouse, Inc. (2019) 33 

Cal.App.5th 659, 668, review granted July 10, 2019, S255610 and 

disapproved on another point in ZB, N.A. v. Superior Court (Sept. 12, 

2019, S246711) __ Cal.5th __, __ [“If an employer does not comply with 

the meal and rest break rules applicable to nonexempt employees, an 

employee is entitled to an additional hour’s pay for each workday that a 

meal or rest period was not offered. (§ 226.7, subd. (c).)”].)

5 Spectrum’s Memorandum 33, effective October 1, 2007, is a blanket 

agreement designed to comply with Wage Order 4, subdivision 11(A). The 

legal adequacy of the Memorandum 33 language is not before us, nor are we 

asked to decide whether a blanket on-duty meal break agreement with a 

right-to-revoke clause is acceptable, as the DLSE has opined. 
15

D. Analysis

Pre-Memorandum 33, Spectrum employees did not sign a written 

agreement concerning the on-duty meal period. Nor were employees 

advised they could “in writing, revoke the agreement at any time.” 

(Cal. Code Regs., tit. 8, § 11040, subd. 11(A).) Nevertheless, Spectrum 

took the position it “substantially complied, if not strictly complied, with 

the intent of IWC Wage Order 4’s requirements for a permissible onduty meal period; and the officers understood and agreed to the on-duty 

meal periods, and knew they could ‘revoke’ the agreement in several 

ways, including declining an assignment.” Spectrum argued it was not 

necessary “to ‘cobble’ together documents [for the employees] to 

understand they were agreeing to on-duty meal periods. If they did not 

want to work a day with an on-duty meal period, they could decline an 

on-call assignment or ask for another shift, or ask for other 

[unspecified] accommodations, or they could quit.”

Although the trial court rejected this argument, it did so only after 

reviewing the eight documents Spectrum submitted, none of which 

included the mandatory right-to-revoke language set forth in Wage 

Order 4. The trial court also did not permit Spectrum to present 

witness testimony as to any oral on-duty meal break agreements. At 

the close of evidence, the trial court granted a directed verdict in favor 

of the pre-Memorandum 33 meal break subclass. 

On appeal, Spectrum complains the evidentiary rulings and 

directed verdict were the result of the trial court’s erroneous conclusion 

that Wage Order 4 required “the on-duty meal period agreements [to] be 

contained in one document” and deprived it of the opportunity to show 
16

that a collection of documents in its possession demonstrated “the 

parties’ understanding and intent, and practice and performance,” all 

within the spirit of Wage Order 4. 

Spectrum’s “single document” argument does not withstand 

scrutiny. Rather, it appears to be an effort to deflect attention from the 

uncontroverted fact that, regardless of the number of documents 

involved, none included a compliant written meal period break policy 

before the issuance of Memorandum 33. The colloquy between the trial 

court and Spectrum’s counsel is telling in this regard.6 

6 The dialogue was robust, and we reproduce pertinent portions for 

context. Early in the discussion, the trial judge signaled her agreement in 

principle with Spectrum’s “argument that it’s not necessary for compliance 

with the wage order to have a single document that sets forth that the 

employee is agreeing to an on-duty meal period and describes how they can 

go about revoking that agreement.” The trial judge also recognized that “the 

rules require some technical compliance, and I don’t think that the selection 

of policies and procedures and memos, either taken separately or together, as 

you suggest, is—constitutes legal compliance with the wage order . . . . [¶] 

And I believe my finding would be that as a matter of law, the failure to have 

a document that contains . . . both the acknowledgement that the meal period 

is going to be on duty, as well as the right to revoke and a method of 

revocation, has to be in, then, I guess, one place, I would say.” The trial judge 

added, however, that if one document “set forth the necessary elements, and 

we had a separate document acknowledging it, I don’t think I would have a 

problem with that. [¶] So I don’t disagree with [Spectrum] that . . . there 

might be different methods by which [the employer] would accomplish 

compliance with the wage order. I just don’t think the method that you’re 

proposing, which relies on a number of different documents received over 

time, and none of which, I think, specifically state[s] what is necessary for 

compliance with the wage order, I don’t think that, as a matter of law, can be 

compliance with the wage order.”

When Spectrum’s counsel asked whether “a 50-page agreement that 

has both provisions in it . . . would satisfy,” the trial judge readily agreed it 

might: “I could envision a situation where that would be sufficient.” She 
17

The trial court’s comment in the statement of decision that Wage 

Order 4 “clearly contemplates a single written agreement” was no more 

than an observation. The ruling was “that Spectrum failed to comply 

with the requirements of [Wage Order 4] since it had no written 

agreement with its employees by which employees agreed to the on-duty 

meal period and were advised that their agreement could be revoke in 

writing.” We agree with the ruling. 

Wage Order 4 requires that employer/employee agreements be in 

writing and include language expressly advising “the employee may, in 

writing, revoke the agreement at any time.” (Cal. Code Regs., tit. 8, 

§ 11040, sub. 11(A).) Spectrum suggests that substantial, rather than 

reiterated, however, that Spectrum’s various documents did not have all the 

required provisions and were not in compliance with the wage order. 

Spectrum’s counsel continued to press the single-document issue and 

asked whether the trial judge took the position that the meal break policy 

had to be in “a separate written agreement that relates only to meal periods.” 

The trial judge again explained that a single document was not required and 

multiple agreements would “probably be fine . . . but I don’t think that’s what 

we have here.” She added, “I’m reading the documents [Spectrum 

submitted], and I am not finding language that either specifically or 

generally complies with the wage order, either in a single document or in a 

combination of documents.”

Sensing a wind shift, Spectrum’s counsel tacked and launched a 

contract interpretation argument. The trial judge responded, “we’re not in a 

breach of contract case [where the intent of the parties would be relevant]”: 

“[A]ll we’re doing here is determining whether [Spectrum] complied with the 

wage order, and employees[’]. . . evaluation[s] of whether the language is 

sufficient [is not] relevant. The issue is . . . a legal issue, and I think it’s . . . 

pretty simple, although . . . you’re making it awfully complex. [¶] I’m not 

saying that your Memo 33 is the only way to do it, but that seems to be to be 

perfectly compliant with the rule. There may have been other ways to comply 

with the rule, but the way that you’re proposing[,] I don’t believe, legally, is 

one of them.”
18

by-the-book, compliance with Wage Order 4’s mandatory language is 

sufficient and urges one may imply compliance based on the parties’ 

course of dealing. Such an interpretation of Wage Order 4 would 

shatter the “exceedingly narrow” exception for on-duty meal periods 

(ABM Security, supra, 2 Cal.5th at p. 266) and fundamentally alter the 

conditions for legally compliant on-duty meal periods. We decline to 

accept it. Spectrum’s companion claim of evidentiary error fails for the 

same reason. 

Additionally, Spectrum fails to offer any germane legal support for 

its position. Von Nothdurft v. Steck (2014) 227 Cal.App.4th 524, upon 

which it relies, is distinguishable. Von Nothdurft addressed Wage 

Order No. 5-2001 (Cal. Code Regs., tit. 8, § 11050, subd. 10(C)), which 

governs how apartment building owners may credit a resident 

manager’s free lodging against the obligation to pay minimum wages. 

That wage order requires “a voluntary written agreement between the 

employer [owner] and the employee [resident manager].” (Id. at p. 530.) 

Both parties voluntarily signed such an agreement. (Id. at p 529.) 

The issue in Von Nothdurft was whether the written agreement 

complied with the wage order (id. at p. 530), not whether something 

other than a written agreement would suffice. Additionally, the wage 

order under consideration in Von Nothdurft did not “specify that any 

particular terms must be included in such an agreement to permit a 

valid lodging credit—it require[ed] only a ‘voluntary written agreement 

between the employer and the employee’ [citation] without 

qualification.” (Id. at p. 532.) By contrast, Wage Order 4 not only 
19

requires a written agreement, it mandates the inclusion of a particular

term, i.e., “that the employee may, in writing, revoke the agreement at 

any time.” (Cal. Code Regs., tit. 8, § 1040, subd. 11(A).) 

Spectrum’s argument more closely resembles the one accepted by 

the Court of Appeal in Monzon v. Schaefer Ambulance Serv. (1990) 224 

Cal.App.3d 16 (Monzon), an overtime case, but subsequently criticized 

by the Supreme Court. The applicable wage order in Monzon provided 

that daily overtime provisions would not apply to ambulance drivers 

and attendants who worked 24 hour shifts and also agreed in writing to 

forgo pay for up to eight hours of sleep time per shift. (Id. at pp. 31-32.) 

The Court of Appeal framed the issue as follows: “[W]hether or not an 

employer of ambulance drivers and attendants can have an agreement, 

other than a written agreement, with such employees to exclude sleep 

time from compensable time.” (Id. at pp. 40-41.) 

Notwithstanding the applicable wage order’s requirement of a 

written agreement, the Monzon majority held ambulance drivers and 

attendants could orally waive up to eight hours of compensable time in 

any one shift. (Monzon, supra, 224 Cal.App.4th at p. 46.) The majority 

discounted the written agreement clause and relied instead on a federal 

regulation that had not been incorporated into the wage order. (Id. at 

pp. 31-32, 43.) 

Although the Supreme Court has not disapproved Monzon, it has 

roundly questioned the decision’s perspicuity and reasoning and 

expressly limited Monson’s holding to its facts. (Mendiola v. CPS 

Security Solutions, Inc. (2015) 60 Cal.4th 833, 845.) Mendiola, in turn, 
20

supports our conclusion that “in lieu of” compliance with a wage order is 

not sufficient. As Spectrum itself notes, one analytical takeaway from 

Mendiola is that a court’s review of IWC wage orders should be 

“‘“properly circumscribed.”’” (Id. at p. 847.) Another is the reaffirmation 

that, absent an element of arbitrariness, courts take IWC wage orders 

at face value, generously interpreting them for the protection and 

benefit of employees. (Id. at pp. 840-848.) In this case, Wage Order 4 

unambiguously requires a written agreement with an explicit right-torevoke clause. This requirement protects and benefits employees, and 

we do not accept a lesser substitute for it. 

The trial court recognized as much. It neither ignored Wage 

Order 4 nor grafted additional provisions onto it. Spectrum’s preMemorandum 33 on duty meal period policy failed not because it 

violated a supposed “single document” rule, but because it lacked an 

employee’s written agreement to on-duty meal periods and written 

notice of an employee’s right to revoke that agreement. The absence of 

a compliant written on-duty meal period agreement rendered Spectrum 

liable to the pre-Memorandum 33 meal break subclass. 

Spectrum’s stipulation in the trial court that the preMemorandum 33 meal break subclass was owed $1,393,314 in premium 

wages was made “[w]ithout waiving any arguments.” As Spectrum 

notes, it has “consistently argued that proof of causation and harm [are] 

necessary, and premium pay [is] not automatic.” The law is to the 

contrary. (Murphy, supra, 40 Cal.4th at p. 1108 [“an employee is 

entitled to the additional hour of pay immediately upon being forced to 

miss a rest or meal period”].)
21

That portion of the judgment finding Spectrum liable for premium 

wages to the pre-Memorandum 33 meal break subclass in the amount of 

$1,393,314 is affirmed.

II. Employees Entitled to Premium Wages Pursuant to Section 

226.7 May Not, for that Reason Alone, Pursue Derivative 

Remedies Pursuant to Sections 203 (Waiting Time Penalties) 

and 226 (Itemized Wage Statement Penalties)

A. A Wage by any Other Name

Wages “are accorded ‘a special status’ under California law.” 

(Davis v. Farmers Ins. Exchange (2016) 245 Cal.App.4th 1302, 1331.) 

The Legislature has defined “wages” as all “amounts for labor 

performed by employees of every description, whether the amount is 

fixed or ascertained by the standard of time, task, piece, commission 

basis, or other method of calculation.” (§ 200, subd. (a).) “[A] wage is 

anything ‘promised as part of the compensation for employment,’ and it 

is due when ‘all conditions agreed to in advance . . . have been 

satisfied.” (Davis, at p. 1331, fn. 20.) “‘[W]ages’ also include those 

benefits to which an employee is entitled as a part of his or her 

compensation, including money, room, board, clothing, vacation pay, 

and sick pay.’” (Murphy, supra, 40 Cal.4th at p. 1103.) 

1. Section 226.7

Before 2000, the term “premium wages” generally referred to 

overtime pay earned by employees for their labor. (See, e.g., California 

Manufacturers Assn. v. Industrial Welfare Com. (1980) 109 Cal.App.3d 
22

95, 126.) In 2001, after section 226.7 became effective, the DLSE issued 

the first of several opinions applying the term “premium wages” to 

section 226.7’s hour of pay for meal period violations. (Murphy, supra, 

40 Cal.4th at p. 1105, fn. 7.)

The Legislature did not characterize section 226.7’s premium pay 

as either a wage or a penalty and did not prescribe the statute of 

limitations for a section 226.7 action. DLSE opinions waffled on the 

subject (Murphy, supra, 40 Cal.4th at p. 1105, fn. 7), and intermediate 

appellate courts were not of a single mind. The characterization was 

critical, as the statute of limitations for a wage action is three years, but 

only one year for a penalty. (Compare, e.g., § 226, subd. (e) (former 

subd. (b)) [expressly characterizing the itemized wage statement statute 

as a penalty] and § 203, subd. (b) [express provision that the statute of 

limitations to sue for waiting time penalties was the same as for “an 

action for the wages from which the penalties arise”].) 

Murphy acknowledged that section 226.7’s language reasonably 

could be interpreted as either a wage or a penalty. (Murphy, supra, 40 

Cal.4th at p. 1104.) Accordingly, the Court analyzed the wage-versuspenalty issue by examining section 226.7’s “ostensible objectives [and] 

legislative history.” (Id. at p. 1105.) Although the premium wage for 

missed meal and rest breaks “act[ed] as an incentive for employers to 

comply with labor standards,” the primary objective was “to compensate 

employees,” suggesting the payment was more like a wage than a 

penalty. (Id. at p. 1110.) 
23

The legislative history for section 226.7 solidified that conclusion. 

(A.B. No. 2509 (1999-2000 Reg. Sess. (Bill No. 2509).) Murphy noted 

the draft language for section 226.7 required the employee to pursue an 

enforcement action to remedy a meal or rest period violation and 

provided for a payment to the employee and a penalty to be collected by 

the Labor Commissioner. (Murphy, supra, 40 Cal.4th at pp. 1106, 

1108.) By the time section 226.7 was enacted, however, the Legislature 

deleted the penalty language (id. at p. 1107), reduced the monetary 

remedy to one additional hour of pay (ibid.), and “eliminated the 

requirement that an employee file an enforcement action, instead 

creating an affirmative obligation on the employer to pay the employee 

one hour of pay” (id. at p. 1108). 

Along these lines, Murphy contrasted Bill No. 2509’s language, as 

it pertained to section 226.7, with the wording in the portion of Bill No. 

2509 that amended section 226. The Legislature rewrote section 226 at 

the same time it added section 226.7, but maintained section 226’s 

penalty language—“further evidence that the Legislature did not intend 

section 226.7 to constitute a penalty.” (Murphy, supra, 40 Cal.4th at p. 

1108.) Murphy inferred from section 203’s statute of limitations 

language “that, had the Legislature intended section 226.7 to be 

governed by a one-year statute of limitations, the Legislature knew it 

could have so indicated by unambiguously labeling it a ‘penalty.’” (Id. 

at p. 1109.)

In Murphy, the Supreme Court noted “the Legislature intended 

section 226.7 first and foremost to compensate employees for their 
24

injuries.” (Murphy, supra, 40 Cal.4th at p. 1111.) Nonetheless, because 

an employee’s right to receive the premium wage accrued every day 

without a compliant meal break, the Court unanimously held, “a 

payment owed pursuant to section 226.7 is akin to an employee’s 

immediate entitlement to payment of wages or for overtime.” (Id. at p. 

1108; see also Esparza v. Safeway, Inc. (2019) 36 Cal.App.5th 42, 52; 

Safeway, Inc. v. Superior Court (2015) 238 Cal.App.4th 1138, 1155 [“the 

employee is ‘immediately’ entitled to the premium wage, without any 

demand” or action by the employee].) 

Murphy’s wage-versus-penalty debate was straightforward. Its 

context was the statute of limitations for a section 226.7 action. 

Recognizing the longstanding precept “that statutes governing 

conditions of employment are to be construed broadly in favor of 

protecting employees” (Murphy, supra, 40 Cal.4th at p. 1103), Murphy 

determined the additional hour of pay was a wage for statute of 

limitations purposes, giving workers three years to sue, instead of the 

one year applicable to penalties (id. at p. 1102). 

Murphy and its rationale proved to be just a tip of the proverbial 

iceberg, however. Five years later, Kirby v. Immoos Fire Protection, Inc.

(2012) 53 Cal.4th 1244 (Kirby) added dimension to the discussion.7 

In Kirby, the trial court awarded attorney fees to the prevailing 

employer in an employee action for the alleged failure to provide section 

7 For perspective, Brinker, supra, 53 Cal.4th 1004 was filed 18 days 

before Kirby, supra, 53 Cal.4th 1244.
25

226.7 rest breaks. Citing Murphy and section 218.5,8 the Court of 

Appeal affirmed, holding an employer was entitled to attorney fees 

because the employees sued for “‘additional wages,’” i.e., rest break 

premium pay. (Kirby, supra, 53 Cal.4th at p. 1250.) 

The Supreme Court “granted review to consider when, if ever, a 

party who prevails on a section 226.7 action for an alleged failure to 

provide [meal and/or] rest breaks may be awarded attorney’s fees” 

pursuant to sections 1194 or 218.5. (Kirby, supra, 53 Cal.4th at p. 

1248.) The short answer is never: “We conclude, in light of the relevant 

statutory language and legislative history, that neither section 1194 nor 

section 218.5 authorizes an award of attorney’s fees to a party that 

prevails on a section 226.7 claim.” (Ibid.) 

The reasoning is that “a section 226.7 action is brought for the 

nonprovision of meal and rest periods, not for the ‘“nonpayment of 

wages.”’” (Kirby, supra, 53 Cal.4th at p. 1255.) Kirby added, “[t]he 

‘additional hour of pay’ provided for in subdivision (b) is the legal 

8 When Kirby was decided, section 218.5 provided in pertinent part: “In 

any action brought for the nonpayment of wages, fringe benefits, or health 

and welfare or pension fund contributions, the court shall award reasonable 

attorney’s fees and costs to the prevailing party if any party to the action 

requests attorney’s fees and costs upon the initiation of the action. . . . [¶] 

This section does not apply to any action for which attorney’s fees are 

recoverable under Section 1194.” 

Section 1194 provides in relevant part: “Notwithstanding any 

agreement to work for a lesser wage, any employee receiving less than the 

legal minimum wage or the legal overtime compensation applicable to the 

employee is entitled to recover in a civil action the unpaid balance of the full 

amount of this minimum wage or overtime compensation, including interest 

thereon, reasonable attorney’s fees, and costs of suit.”
26

remedy for a violation of subdivision (a), but . . . [a]n employer’s failure 

to provide an additional hour of pay does not form part of a section 

226.7 violation, and an employer’s provision of an additional hour of pay 

does not excuse a section 226.7 violation. The failure to provide 

required meal and rest breaks is what triggers a violation of section 

226.7. Accordingly, a section 226.7 claim is not an action brought for 

nonpayment of wages; it is an action brought for nonprovision of meal 

or rest breaks.” (Id. at pp. 1256-1257.) 

Kirby did not perceive a need to reconcile the denial of attorney 

fees in section 226.7 actions with Murphy’s conclusion that section 

226.7’s “remedy is a ‘wage’ for purposes of determining what statute of 

limitations applies.” (Kirby, supra, 53 Cal.4th at p. 1256, italics added.) 

Rather, Kirby concluded the holdings were “not at odds” with each 

other: “To say that a section 226.7 remedy is a wage, however, is not to 

say that the legal violation triggering the remedy is nonpayment of 

wages. As explained above, the legal violation is nonprovision of meal 

or rest breaks, and the object that follows the phrase ‘action brought for’ 

in section 218.5 is the alleged legal violation, not the desired remedy.” 

(Kirby, supra, 53 Cal.4th at p. 1257.)

When Kirby was decided, the attorney fees provision in section 

218.5 was “a two-way fee-shifting statute, permitting an award of fees 

to either employees or employers who, as relevant here, prevail on an 

‘action brought for the nonpayment of wages.’” (Kirby, supra, 53 

Cal.4th at p. 1251.) Post-Kirby, the Legislature added a figurative 

speed bump for employers: “Prior to 2014, section 218.5 did not 
27

distinguish between prevailing employers and employees. It was a true 

‘two way’ fee shifting statute that awarded fees to the winner, whether 

employee or employer. [Citation.] An amendment to section 218.5, 

effective January 1, 2014, changed this. Now, if an employer defeats an 

employee’s wage action, ‘attorney’s fees and costs shall be awarded . . . 

only if the court finds that the employee brought the court action in bad 

faith.’ (§ 218.5, as amended by Stats. 2013, ch. 142, § 1.)” (USS-Posco 

Industries v. Case (2016) 244 Cal.App.4th 197, 216.) 

2. Post-Kirby Discord

Once Murphy established that the remedy for meal and/or rest 

period violations constituted a wage for statute of limitation purposes 

and after Kirby held that attorney fees could not be awarded to pursue 

those claims, attention turned in earnest to the applicability of section 

226.7 remedies to the penalty provisions in sections 203 and 226. 

Section 203, enacted during the Depression, imposes a penalty on 

an employer willfully failing to timely pay wages upon an employee’s 

discharge or voluntary separation from employment.9 (See fn. 4.) 

Section 203, subdivision (a) calculates the penalty as the employee’s per 

diem wages from the date they are due until paid, for a period not to 

exceed 30 days. Informally dubbed the “waiting time penalty,” section 

203, subdivision (b) expressly provides that any suit to recover those 

9 Precursor legislation was first enacted in 1915 and amended several 

times before section 203 was passed. (Pineda v. Bank of America, N.A. (2010) 

50 Cal.4th 1389, 1398-1399.)
28

penalties is governed by the statute of limitations applicable to actions 

for wages, not penalties. 

Section 226 is a World War II-era statute. (See fn. 4.) Subdivision 

(a) imposes a penalty on employers who knowingly and intentionally 

fail to provide itemized wage statements for, inter alia, gross and net 

wages “earned.” The method to calculate a section 226 penalty is 

specified in subdivision (e). Unlike sections 203 and 226.7, section 226 

expressly authorizes attorney fees to a prevailing “employee suffering 

injury as a result of a knowing and intentional failure by an employer to 

comply with” the itemized wage statement requirements. (§ 226, subd. 

(e).) The statute of limitations for a section 226 penalty claim is one 

year. (Falk v. Children’s Hospital Los Angeles (2015) 237 Cal.App.4th 

1454, 1469.) 

Causes of action for waiting time and itemized wage statement 

penalties (§§ 203, 226) generally are referred to as derivative of an 

employee’s right to the wages themselves: An employee’s right to wages 

accrues at the time work is performed, but “[t]he right to a penalty . . . 

does not vest until someone has taken action to enforce it.” (Murphy, 

supra, 40 Cal.4th at p. 1108.) As this court previously has held, causes 

of actions for waiting time and itemized wage statement penalties, like 

causes of actions pursuant to section 226.7 for the nonprovision of meal 

or rest breaks, “do not seek to collect due and unpaid wages.” (Lane v. 

Francis Capital Management LLC (2014) 224 Cal.App.4th 676, 684 

(Lane).) Claims for “interest, costs and attorney fees under sections 
29

218.5 and 218.6 [seek remedies, not] ‘due and unpaid wages.’” (Id. at p. 

684, fn. 2.)

Although wage and hour lawsuits are ubiquitous in state courts, 

most settle before trial. Consequently, our appellate courts have not 

had much opportunity to publish decisions addressing the derivative 

wage claim issue vis-à-vis section 226.7 actions. Moreover, to the extent 

an overtime or minimum wage issue also exists, there is no need to 

consider “whether violations of meal period regulations give rise to 

claims for waiting time penalties under section 203 [because the 

employer will owe] minimum wages for time worked [and that] is a 

proper basis for . . . waiting time penalties under section 203.” 

(Kaanaana, supra, 29 Cal.App.5th at p. 810; see also Maldonado v. 

Epsilon Plastics, Inc. (2018) 22 Cal.App.5th 1308, 1336-1337 [in an 

overtime case, there is no itemized wage statement violation where the 

hours worked are accurate, but the wages earned are not; “only the 

absence of the hours worked will give rise to an inference of injury; the 

absence of accurate wages earned will be remedied by the violated wage 

and hour law itself”].) 

Ling v. P.F. Chang’s China Bistro, Inc. (2016) 245 Cal.App.4th 

1242 (Ling) is a notable exception. There, a terminated employee’s 

overtime and meal period claims were sent to arbitration. The 

employee lost the overtime claim, but was awarded premium wages and 

section 203 waiting time penalties for missed meal periods. (Id. at p. 

1248.) Kirby had already been decided when the employee asked the 

arbitrator to award her section 218.5 attorney fees; that request was 
30

denied. No party challenged imposition of the derivative section 203 

penalty itself, and the employee contended she was entitled to attorney 

fees based on the award of section 203 waiting time penalties. Both the 

arbitrator and trial court disagreed. (Id. at p. 1251.) 

The Court of Appeal affirmed. The appellate panel first noted no 

“legislative public policy” justified judicial interference with the 

arbitrator’s decision to deny the employee attorney fees based on section 

203 waiting time penalties. (Ling, supra, 245 Cal.App.4th at pp. 1259-

1260.) The appellate panel then concluded that “[e]ven if the 

arbitrator’s ruling here—that plaintiff cannot recover attorney fees on a 

derivative section 203 waiting time penalty for a section 226.7 

violation—is reviewable,” there was no error. (Id. at p. 1261.) 

Although Ling framed the issue as involving the recovery of 

attorney fees, its analysis focused on whether section 203 penalties 

were derivative of a section 226.7 claim: “We understand that the 

remedy for a section 226.7 violation is an extra hour of pay, but the fact 

that the remedy is measured by an employee’s hourly wage does not 

transmute the remedy into a wage as that term is used in section 203, 

which authorizes penalties to an employee who has separated from 

employment without being paid. . . . Kirby concluded that ‘a section 

226.7 action is brought for the nonprovision of meal and rest periods, 

not for the “nonpayment of wages.”’ [Citation.] Following Kirby, section 

226.7 cannot support a section 203 penalty because section 203, 

subdivision (b) tethers the waiting time penalty to a separate action for 

wages. Because a section 203 claim is purely derivative of ‘an action for 
31

the wages from which the penalties arise,’ it cannot be the basis of a fee 

award when the underlying claim is not an action for wages.” (Ling, 

supra, 245 Cal.App.4th at p. 1261.)

Most of the citable decisions discussing whether section 226.7 

supports section 203 and 226 penalties are unpublished federal district 

court opinions (Cal. Rules of Court, rule 8.1115); and those courts are 

not in accord. For example, Jones v. Spherion Staffing LLC (C.D.Cal., 

Aug. 7, 2012, No. LA CV11-06462 JAK) 2012 U.S.Dist. Lexis 112396, 

like Ling, held that section 203 and 226 penalties were not derivative of 

a section 226.7 claim: “[The worker] cannot advance a claim for 

noncompliant wage statements pursuant to section 226[, subdivision] 

(a) or failure to pay wages due upon termination pursuant to section 

203 based solely on alleged violations of section 226.7. First, under 

Kirby, the legal violation underlying a section 226.7 claim is the 

nonprovision of meal and rest periods and the corresponding failure to 

‘ensur[e] the health and welfare of employees,’ not the nonpayment of 

wages. [Citation.] Kirby makes clear that, despite Murphy’s holding 

that the premium pay remedy is calculated as a wage, and that the 

employee is entitled to that remedy immediately, the payment of the 

remedy does not satisfy section 226.7. ‘In other words, section 226.7 

does not give employers a lawful choice between providing either meal 

and rest breaks or an additional hour of pay. An employer’s failure to 

provide an additional hour of pay does not form part of a section 226.7 

violation, and an employer’s provision of an additional hour of pay does 

not excuse a section 226.7 violation.’ [Citation.] Thus, even if the 
32

employee agreed to work through a required break in exchange for one 

hour of pay, and if the extra pay were provided to the employee and 

recorded on the employee’s wage statement, the employee would 

nonetheless have a claim pursuant to section 226.7. Accordingly, 

because the employer cannot remedy a section 226.7 violation by 

compensating the employee, the wrongdoing by the employer is more 

than the failure to pay wages; it is a failure to ensure the employee’s 

health and wellbeing through reasonable working conditions. [¶] 

Second, a finding that section 226.7 violations can form the basis for 

claims under section 226 and section 203, would result in an improper, 

multiple recovery by the employee.” (Id. at pp. *8–9.) 

The federal district court in Singletary v. Teavana Corporation

(N.D.Cal., May 2, 2014, No. 5:13-CV-01163-PSG) 2014 U.S.Dist. Lexis 

62073 concurred: “The case law on this question is murky at best. . . . 

[¶] Section 203, like the attorney fee provision in Kirby, is concerned 

with a particular type of wrong, not a particular type of remedy. The 

first clause of the section clarifies that its penalties only attach ‘if an 

employer willfully fails to pay any wages of an employee.’ This clause 

demonstrates that the wrong [s]ection 203 is concerned with is the 

prompt payment of wages to a terminated employee. Kirby clarified 

that the wrong at issue in [s]ection 226.7 is the non-provision of rest 

breaks, not a denial of wages.” (Id. at p. *4.)

Other federal district courts have held to the contrary. For 

example, Finder v. Leprino Foods Co. (E.D.Cal., Mar. 12, 2015, No. 

1:13-CV-2059 AWI-BAM) 2015 U.S.Dist. Lexis 30652 concluded, 

“Section 226.7 premiums should qualify as wages that are governed by 
33

the requirements of [s]ection 226. Murphy directly examined the 

nature of the premium and termed it a ‘wage’ rather than a ‘penalty.’ 

Kirby was concerned with characterizing the [s]ection 226.7 claim itself 

rather than the recompense. The two cases could be interpreted to deal 

with distinctly different topics: Kirby speaks to understanding the 

substance of the [s]ection 226.7 violation while Murphy governs the 

nature of the damages. Section 226.7 interacts with [s]ection 226 to the 

extent that the characterization of the damages matter. The holding of 

Murphy is more directly relevant to the issue at hand. Thus, this court 

relies on Murphy in finding that [s]ection 226.7 premiums constitute 

wages, and are therefore required to be included in wage statements 

under [s]ection 226.” (Id. at p. *5.) 

Parson v. Golden State FC, LLC (N.D.Cal., May 2, 2016, No. 16-

CV-00405-JST) 2016 U.S.Dist. Lexis 58299 dealt with a derivative 

claim pursuant to section 204, but the federal district court concluded a 

section 203 and 226 analysis applied: “[P]ayments required by section 

226.7 should be considered wages, and that Plaintiffs may therefore 

bring a derivative claim under section 204. . . . [A]lthough an employee 

who successfully brings a section 226.7 claim is challenging a failure to 

provide rest breaks, the remedy for that failure is additional wages. . . . 

Nothing in Murphy or Kirby suggests that wages awarded under section 

226.7 be treated any differently than other wages earned by the 

employee. . . . “‘If an employee is entitled to the additional hour of pay 

“immediately” upon being forced to miss a rest or meal period, it 

appears inconsistent to conclude that an employee is not also 
34

immediately entitled to have the additional hour of pay documented on 

their wage statements and timely paid upon termination or 

resignation.’” [¶] . . . [¶] . . . It is true that the violation described in 

section 203—and likewise, section 204—is concerned with the improper 

payment of wages, while the violation described in section 226.7 is not. 

However, it is unclear why this distinction resolves the issue. If the 

amounts due are classified by law as wages and are not properly paid to 

the employee under the applicable Labor Code section, the employer 

has presumably committed a violation—regardless of whether the 

wages are owed to the employee due to hours of labor, additional 

overtime pay, an award under California law, or some other reason.” 

(Id. at pp. *4-*5; see also Abad v. Gen. Nutrition Ctrs, Inc. (C.D.Cal., 

Mar. 7, 2013, No. SACV 09-00190-JVS) 2013 U.S.Dist. 116057.)

Still other federal district courts, noting that section 203 uses the 

term “wages,” while section 226 employs the phrase “wages earned,” 

have found that section 226.7 claims give rise to a derivative claim 

under section 203, but not under section 226. (Pena v. Taylor Farms 

Pac., Inc. (E.D.Cal., Apr. 22, 2014, No. 2:13-CV-01282-KJM-AC) 2014 

U.S.Dist. Lexis 56792, at pp. *8-*10; Dawson v. Hitco Carbon 

Composites, Inc. (C.D.Cal., Aug. 3, 2017, No. CV 16-7337 PSG FFMx) 

2017 U.S.Dist. 221866, at p. *7.)

B. Statutory Interpretation and Standard of Review

California’s laws regulating wages, hours, and working conditions 

reflect our state’s strong commitment to safeguard workers. (Linton v. 
35

DeSoto Cab Co., Inc. (2017) 15 Cal.App.5th 1208, 1220.) Our laws are 

“remedial [in] nature . . . for the protection and benefit of employees 

[and are] liberally construed with an eye to promoting such protection.” 

(Industrial Welfare Com. v. Superior Court (1980) 27 Cal.3d 690, 702.) 

To the extent the Supreme Court has not resolved an issue, our 

review of statutory provisions is de novo. As Kirby, quoting liberally 

from Murphy, held, “We independently review questions of statutory 

construction. [Citation.] In doing so, ‘it is well settled that we must 

look first to the words of the statute, “because they generally provide 

the most reliable indicator of legislative intent.” [Citation.] If the 

statutory language is clear and unambiguous our inquiry ends. . . . 

“[W]e presume the Legislature meant what it said and the plain 

meaning of the statute governs.” [Citations.] In reading statutes, we 

are mindful that words are to be given their plain and commonsense 

meaning.’” (Kirby, supra, 53 Cal.4th at p. 1250.)

Additionally, the Supreme Court has long admonished, “‘the 

judicial role in a democratic society is fundamentally to interpret laws, 

not to write them. The latter power belongs primarily to the people and 

the political branches of government . . . .’ [Citation.] It cannot be too 

often repeated that due respect for the political branches of our 

government requires us to interpret the laws in accordance with the 

expressed intention of the Legislature. ‘This court has no power to 

rewrite the statute so as to make it conform to a presumed intention 

which is not expressed.’” (California Teachers Assn. v. Governing Bd. of 
36

Rialto Unified School Dist. (1997) 14 Cal.4th 627, 633 (California 

Teachers Assn.).) 

In sum, we begin the “interpretive process . . . [by reviewing t]he 

Legislature’s chosen language . . . because ‘“it is the language . . . that 

has successfully braved the legislative gauntlet.’”. . . If the statutory 

language is clear and unambiguous, our task is at an end, for there 

is . . . nothing for the court to interpret or construe.” (MacIsaac v. Waste 

Management Collection & Recycling, Inc. (2005) 134 Cal.App.4th 1076, 

1082-1083 (MacIsaac).) 

With these precepts in mind—and in order to determine whether 

a section 226.7 lawsuit supports derivative claims for section 203 and 

226 penalties—we independently assess the language of the relevant 

statutes, within the boundaries of the Supreme Court’s decisions in 

Murphy, supra, 40 Cal.4th 1094 and Kirby, supra, 53 Cal.4th 1244.10

10 There is no law of the case to apply in this appeal. Naranjo I, supra, 

172 Cal.App.4th 654 held the Service Contract Act did not preempt claims 

pursuant to sections 203 and 226, but did not determine whether Naranjo 

was entitled to those statutory penalties.

Also, this lawsuit does not involve overtime or minimum wage issues, 

where the derivative penalties in sections 203 and 226 would be triggered. 

(E.g., Kaanaana, supra, 29 Cal.App.5th at p. 810.) Nor are we presented 

with an employer that failed to pay for on-duty meal periods or unilaterally 

deducted 30 minutes of pay per day for employees who were required to work 

through their meal periods; those unpaid amounts also would qualify as 

wages owed for work performed. The issues in this appeal concern premium 

wages, not unpaid regular wages. 
37

C. Analysis

California employment law and public policy perspectives have 

changed dramatically in the past 80 years, but the 1937 statutory 

definitions of “wages” and “labor” remain intact.11 By statute, “wages” 

are defined only in terms of “labor performed by employees.” (§ 200, 

subd. (a).) “Labor,” in turn, means “labor, work, or service . . . if the 

labor to be paid for is performed personally by the person demanding 

payment.” (§ 200, subd. (b).) 

Although Murphy characterized the remedy for an employer’s 

meal and rest break violation as a premium wage for the purpose of the 

statute of limitations, the Legislature did not amend section 200 to 

accommodate the holding, i.e., the statutory definition of “wages” was 

not expanded to include the payment of a remedy rather than simply 

the payment for labor. In the same vein, Kirby’s holding that an 

employee’s lawsuit for meal and rest break violations is not an “action 

brought for the nonpayment of wages,” did not prompt the Legislature 

to amend section 218.5 to add section 226.7 lawsuits to the list of 

actions for which the prevailing party may recover reasonable attorney 

fees. 

Significantly, when the Legislature amended section 218.5 postKirby to make it more difficult for a prevailing employer to be awarded 

attorney fees, it did not disturb Kirby’s core holding that section 226.7 

11 The California Constitution was amended in 1976 to affirm that “[t]he 

Legislature may provide for minimum wages and for the general welfare of 

employees.” (Cal. Const., art. XIV, § 1.)
38

actions (whether for missed meal or rest breaks or both) are not for 

“nonpayment of wages” and do not entitle any party to attorney fees 

pursuant to section 218.5. The Legislature is deemed to be aware of 

judicial decisions; consequently, we assume that body’s decision not to 

amend a statute in response to a judicial decision is a considered one. 

(People v. Tingcungco (2015) 237 Cal.App.4th 249, 257.)

As the Supreme Court instructs, “‘“the plain meaning of the 

statute governs” . . . [and] words are to be given their plain and 

commonsense meaning.’” (Kirby, supra, 53 Cal.4th at p. 1250.) Section 

203 penalizes an employer that willfully fails “to pay . . . any wages” 

owed to a fired or voluntarily separating employee. The penalty is paid 

to the employee, not for “labor, work, or service . . . performed 

personally by the [employee]” (§ 200, subd. (b)), but for the employer’s 

recalcitrance. Read this way, an employer’s failure, however willful, to 

pay section 226.7 statutory remedies does not trigger section 203’s 

derivative penalty provisions for untimely wage payments. 

The result is the same for section 226. Section 226, subdivision 

(e)(1) entitles an employee to minimum fixed penalties or “actual 

damages” “not to exceed . . . $4,000,” plus attorney fees if the itemized 

statement omits gross and net “wages earned.” Section 226.7’s 

premium wage is a statutory remedy for an employer’s conduct, not an 

amount “earned” for “labor, work, or service . . . performed personally by 

the [employee].” (§ 200, subd. (b).) 

The language in sections 200, 203, and 226 “is clear and 

unambiguous, . . . [and there is] nothing for [this] court to interpret or 

construe.” (MacIsaac, supra, 134 Cal.App.4th at p. 1083.) Accordingly, 
39

we hold that section 226.7 actions do not entitle employees to pursue 

the derivative penalties in sections 203 and 226. The denial of section 

203 waiting time penalties is affirmed. The award of itemized wage 

statement penalties must be reversed. Because appellants were not 

entitled to section 226 derivative penalties, they were not entitled to 

section 226, subdivision (e) attorney fees; and the attorney fees awarded 

pursuant to that statute also must be reversed as well.12

It would be naïve to discount the role that statutory penalties and 

attorney fee awards play in promoting—and chilling—wage and hour 

litigation.13 This century, and especially the past decade, has seen a 

surge in wage and hour lawsuits. The traditional class action format 

increasingly is giving way to arbitrations and representative actions 

pursuant to the Private Attorneys General Act (§ 2698 et seq.; (PAGA).) 

Causes of action pursuant to the Unfair Competition Law (Civ. Code, 

§ 51 et seq.) are standard as well. Additionally, the trend has been to 

pursue litigation involving working conditions, e.g., worker 

12 Class counsel did not ask for attorney fees under any other statute.

13 Kirby addressed the deterrence factor thusly: “As we noted in Murphy, 

‘[m]eal and rest periods have long been viewed as part of the remedial worker 

protection framework,’ and low-wage workers are the ‘likeliest to suffer 

violations of section 226.7.’ (Murphy, supra, 40 Cal.4th at pp. 1105, 1113.) In 

giving no indication that section 218.5 applies to meal or rest break claims 

when it enacted section 226.7, the Legislature could reasonably have 

concluded that meritorious section 226.7 claims may be deterred if workers, 

especially low-wage workers, had to weigh the value of an ‘additional hour of 

pay’ remedy if their claims succeed against the risk of liability for a 

significant fee award if their claims fail.” (Kirby, supra, 53 Cal.4th at p. 

1259.)
40

classification, meal and rest breaks, use of seats, etc., in addition to—or 

instead of—overtime and minimum wage claims. 

These lawsuits present statutory interpretation challenges beyond 

what is typically seen in overtime and minimum wage litigation. They 

also can be expensive and time-consuming for workers and businesses: 

Many employers are not individuals or sole proprietorships, so they 

have no choice but to retain counsel. While it can be fiscally feasible—

and in some cases, lucrative—for an attorney to pursue wage and hour 

claims for classes of workers where the potential for penalties and an 

attorney fees award exists, the incentive to do so diminishes greatly 

when penalties and attorney fee awards are foreclosed. Employees 

whose recoveries would be diverted to pay for representation also might 

be less likely to pursue meritorious claims. An employer’s motivation to 

settle a meal and rest break action with an agreement to pay penalties 

and attorney fees is similarly diminished. 

Nevertheless, the power to write laws “‘belongs primarily to the 

people and the political branches of government;’” the judiciary’s role is 

“‘interpret laws, not to write them.’” (California Teachers Assn., supra, 

14 Cal.4th at p. 633.) Although courts construe “statutes governing 

conditions of employment . . . broadly in favor of protecting employees” 

(Murphy, supra, 40 Cal.4th at p. 1103), we do not rewrite them to 

effectuate that policy. Instead, we must respect the plain meaning of 

words chosen by an equal and independent branch of our government. 

(Voris v. Lambert (2019) 7 Cal.5th 1141, 1162 [“the history of wagepayment regulation in this state, beginning more than a century ago 

and continuing through the present day, shows us both that the 
41

Legislature has been attentive to the problem and that it is capable of 

studying the range of possible solutions and fashioning appropriately 

tailored relief”]; Southern California Gas Leak Cases (2019) 7 Cal.5th 

391, 414 [“[if] gaps persist, the Legislature can act”].)

III. Prejudgment Interest

The trial court awarded the pre-Memorandum 33 meal break 

subclass prejudgment interest at the rate of 10 percent, per section 

218.6, for “any action brought for the nonpayment of wages.” As a 

section 226.7 lawsuit is not an action for nonpayment of wages, however 

(Kirby, supra, 53 Cal.4th at p. 1255; Lane, supra, 224 Cal.App.4th at p. 

684, fn. 2), section 218.6 does not authorize prejudgment interest at 

that rate. 

Reliance by the pre-Memorandum 33 meal break subclass on Bell 

v. Farmers Ins. Exchange (2006) 135 Cal.App.4th 1138 to uphold the 

award of 10 percent interest is unavailing. Bell held that section 218.6 

applied retroactively to ensure “that judicial awards of due and unpaid 

wages should bear the contract interest rate” of 10 percent. (Id. at p. 

1146, italics added.) This is not a wage case, and Bell has no 

application here.

However, we also reject Spectrum’s position that the preMemorandum 33 subclass is not entitled to any prejudgment interest. 

The argument, based on the notion the premium wage is a penalty that 

could not be determined until Spectrum’s liability was established, runs 

counter to Murphy, supra, 40 Cal.4th 1094. As Murphy explained, “an 
42

employee is entitled to the additional hour of pay immediately upon 

being forced to miss a rest or meal period. . . . By contrast, . . . [t]he 

right to a penalty, unlike section 226.7 pay, does not vest until someone 

has taken action to enforce it.” (Id. at p. 1108.) Civil Code section 3287 

establishes a default interest rate of seven percent for litigants “entitled 

to recover damages certain, or capable of being made certain,” 

calculated from the day that the right to recover the damages vests. 

The award of prejudgment interest at 10 percent is reversed. The 

matter is remanded to the trial court with directions to calculate 

prejudgment interest for the pre-Memorandum 33 meal break subclass 

at seven percent.

IV. Certification of a Rest Break Class

A. Class Certification Hearing

Naranjo sought to pursue on a classwide basis his claim for 

violation of the right to a duty-free rest break. Naranjo alleged it was

Spectrum’s policy and practice to routinely deny nonexempt employees 

duty-free rest periods and compound the violation by failing to pay 

employees for them. (§ 226.7.)

At all times relevant to this action, Spectrum never authorized or 

permitted off-duty rest breaks. Pre-Memorandum 33, Spectrum’s SOP 

and SOPP advised, “This job does not allow for breaks other than using 

the hallway bathrooms for a few minutes.” Memorandum 33 provided 

only for “on-duty” rest breaks. Naranjo supported his motion for 

certification of a rest break class with excerpts from the deposition of 

John Oden, a Spectrum director and vice-president, as well as, inter 
43

alia, the SOP, SOPP, and Memorandum 33. Oden testified that 

Spectrum’s “require[ment] to maintain constant observation over the 

prisoner [does mean what it says,]” and if employees leave a room 

where a prisoner is located, they are expected “to return to the room to 

provide backup . . . as soon as possible.” Naranjo also presented 

declarations from a number of putative rest break class members, who 

stated under penalty of perjury “there were no 10-minute duty free rest 

breaks where the Detention Officer was not responsible for the secure 

custody of the detainee.”

Spectrum opposed the motion to certify a rest break class with 

declarations of its own by Spectrum supervisors and other personnel. 

In the main, the declarants stated they were not denied rest breaks; but 

they also conceded the rest breaks were not duty free: “I have been 

aware that the job requires that I be available during my break, if 

needed”; “I understood that I need[ed] to be available if called on during 

a break”; “When I have supervised, I allow people to take the breaks 

they wish, but only . . . if they [can be] called back for an emergency”; 

“Officers . . . cannot leave the premises for their breaks in case it is 

necessary to call them back to assist with any emergency situation”; 

“the job requires that we be available even if we are on a break.”

The trial court announced its tentative ruling at the beginning of 

the hearing and adhered to it. The reasons for the class certification 

rulings were stated on the record: “With respect to the basic elements 

of determining the propriety of a class,” the trial court found 

ascertainability, numerosity, typicality of Naranjo’s claims vis-à-vis the 

class members, Naranjo’s adequacy as a class representative, the 
44

dominance of common questions as to “each of the causes of action 

except the second cause of action [rest break class],” and the superiority 

of proceeding as a class action to “resolv[e] each of the causes of action 

other than the [rest break claim].” Distinguishing the rest break 

claims, the trial court noted, “A number of the supervisors contend that 

they did provide the opportunity for rest periods. Certain employees 

contend they were not provided with rest periods. . . . Certain plaintiffs 

contend that they were never given a rest period. Certain of the 

supervisors contend that it was their practice to do so. [¶] I’m aware of 

the argument that it is contended by plaintiffs that there was a policy 

that said there would be none. [I think] the factual issue . . . would be 

unique person by person as to whether or not rest periods were 

provided. And I don’t think, therefore, the class action procedure is the 

right one for the rest period issue.”

Naranjo’s counsel asserted the issue was not whether some 

employees took rest breaks and others did not; rather, it was that 

Spectrum’s uniform policy did not authorize off-duty rest breaks and 

“common evidence [would] show the violation.” The trial court was not 

persuaded: “If you tried the case with respect to the rest break issue, 

the issue is whether common questions would predominate. I’m not 

focusing on the policy. I’m focusing on what actually happened. [¶] . . . 

[¶] . . . [S]o the concern that I have is, what happened seems to not be 

consistent with respect to each employee.”

After the trial court denied certification for a rest break class, 

Naranjo neither litigated nor voluntarily dismissed his individual rest 

break cause of action. 
45

B. Naranjo has not Forfeited his Challenge to the Denial of the 

Rest Break Class Certification Motion

Spectrum contends Naranjo’s failure to litigate or dismiss the 

denial of the class certification ruling as to the rest break class has 

resulted in a forfeiture of his challenge on appeal. Alternatively, 

Spectrum asserts Naranjo is attempting to raise a new rest break 

theory for the first time on appeal. We disagree with both arguments.

Spectrum’s first contention is based on the “death knell” doctrine. 

A trial court’s decision to sustain a demurrer to class allegations 

without leave to amend, deny a motion for class certification, or grant a 

motion to decertify a class sounds a “death knell” for the lawsuit. The 

ruling, though technically interlocutory, is immediately appealable 

because it essentially ends the litigation. (Daar v. Yellow Cab Co. 

(1967) 67 Cal.2d 695, 699; In re Baycol Cases I & II (2011) 51 Cal.4th 

751, 754 (Baycol).) Additionally, because “California follows a ‘one shot’ 

rule . . . , [an] appeal must be taken or the right to appellate review is 

forfeited. (See [Code Civ. Proc.,] § 906 [the powers of a reviewing court 

do not include the power to ‘review any decision or order from which an 

appeal might have been taken’ but was not] . . . .)” (Baycol, supra, at p. 

761, fn. 8.) 

The death knell doctrine does not apply here. The trial court 

certified meal break, waiting time penalty, and itemized wage 

statement penalty classes, but denied certification for a rest break class. 

This ruling was “not similarly tantamount to dismissal and [did] not 

qualify for immediate appeal under the death knell doctrine; only an 
46

order that entirely terminates class claims is appealable.” (Baycol, 

supra, 51 Cal.4th at pp. 757-758.) There was no forfeiture on this score. 

Nor was Naranjo required to litigate his individual rest break 

claim in order to preserve, in an appeal from the final judgment, his 

challenge to the interlocutory order denying certification of a rest break 

class. Quite the contrary. Had Naranjo litigated his individual rest 

break claim—and regardless of whether he won or lost—the putative 

rest break class would have been left “headless” and unable to secure 

appellate review of the class certification ruling. Under these 

circumstances, the order denying class certification as to a rest break 

class constituted an “intermediate ruling” reviewable on appeal by 

Naranjo from the final judgment. (Code Civ. Proc., § 906.)

Additionally, Spectrum asserts that, in the trial court, Naranjo 

sought to certify a rest break class only on the basis that Spectrum 

prohibited rest breaks, but failed to present any evidence to support the 

claim. Spectrum further contends Naranjo is attempting to argue for 

the first time on appeal that a rest break class should have been 

certified because only “on-call” rest breaks were authorized. As just 

discussed, the record reveals otherwise. The SOP and SOPP, which 

forbade rest breaks, were presented to the trial court, and the issue of 

on-call rest breaks, which are prohibited under state law (ABM 

Security, supra, 2 Cal.5th at p. 260), was raised in the trial court. There 

has been no forfeiture.14

14 Spectrum’s assertion in recent supplemental briefing that ABM 

Security’s “ruling does not apply here” is simply wrong. The decision in ABM 
47

C. Governing Principles—Class Certification

The party seeking to proceed by way of a class action has the 

burden to “demonstrate the existence of an ascertainable and 

sufficiently numerous class, a well-defined community of interest, and 

substantial benefits from certification that render proceeding as a class 

superior to the alternatives. (Code Civ. Proc., § 382 . . . .) ‘In turn, the 

“community of interest requirement embodies three factors: 

(1) predominant common questions of law or fact; (2) class 

representatives with claims or defenses typical of the class; and (3) class 

representatives who can adequately represent the class.”’” (Brinker, 

supra, 53 Cal.4th at p. 1021.) Courts assessing whether common issues 

of law or fact predominate “must examine the issues framed by the 

pleadings and the law applicable to the causes of action alleged” (Hicks 

v. Kaufman & Broad Home Corp. (2001) 89 Cal.App.4th 908, 916) and 

then “determine whether the elements necessary to establish liability 

are susceptible of common proof or, if not, whether there are ways to 

manage effectively proof of any elements that may require 

individualized evidence.” (Brinker, supra, 53 Cal.4th at p. 1024.) At 

the certification stage, the question is “essentially a procedural one that 

does not ask whether an action is legally or factually meritorious.” 

(Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 439-440.)

Security reflects California’s prohibition against on-duty and on-call rest 

periods. (ABM Security, supra, 2 Cal.5th at p. 260.) It applies.
48

We review the denial of a motion for class certification under an 

abuse of discretion standard. (Lubin v. The Wackenhut Corp. (2016) 5 

Cal.App.5th 926, 935 (Lubin).) Our review, however, is limited to 

considering only the reasons articulated by the trial court; we “must 

ignore any unexpressed reason that might support the ruling. 

[Citations.] [¶] . . . We will reverse an order denying class certification 

if the trial court used improper criteria or made erroneous legal 

assumptions, even if substantial evidence supported the order.” (Knapp 

v. AT&T Wireless Services, Inc. (2011) 195 Cal.App.4th 932, 939.) 

D. Analysis

“California law requires employers to relieve their employees of all 

work-related duties and employer control during 10-minute rest 

periods. . . . Wage Order 4, subdivision 12(A)[15] and section 226.7 

prohibit on-duty rest periods. What they require instead is that 

employers relinquish any control over how employees spend their break 

time, and relieve their employees of all duties—including the obligation 

that an employee remain on call.” (ABM Security, supra, 2 Cal.5th at 

pp. 272-273.) Naranjo alleged Spectrum’s companywide policy was to 

deny off-duty rest breaks in derogation of California law. As Brinker 

explains, this is precisely the type of claim that is “routinely, and 

15 As relevant here, subdivision 12 of Wage Order 4 provides: “(A) Every 

employer shall authorize and permit all employees to take rest periods [of 10 

minutes net rest time per four hours worked] . . . . [¶] (B) If an employer 

fails to provide an employee a rest period in accordance with the applicable 

provisions of this order, the employer shall pay the employee one (1) hour of 

pay at the employee’s regular rate of compensation for each workday that the 

rest period is not provided.” (Cal. Code Regs., tit. 8, § 11040, subd. 12.)
49

properly, found suitable for class treatment.” (Brinker, supra, 53 

Cal.4th at p. 1033.) So it is here.

Spectrum opposed the motion with evidence suggesting employees 

took rest breaks, but remained on call in the event of an emergency. 

That evidence does not support the denial of class certification. (Lubin, 

supra, 5 Cal.App.5th 926.) In Lubin, the employer did not rebut the 

employees’ evidence concerning a uniform policy to deny rest breaks, 

but “challenged whether requiring employees to remain on the premises 

or be reachable by phone or radio, in the event that the rest period had 

to be interrupted in case of an emergency, meant that the rest period 

was on-duty [and] also argued . . . ‘[the employees] overwhelmingly 

were able to take rest breaks.’” (Id. at p. 954.) Persuaded, the trial 

court decertified the rest break class on the basis “that ‘analyzing 

whether any restrictions placed on rest periods made them on duty 

would require unmanageable individualized inquiries into the nature of 

the rest periods for each distinct worksite, shift, and security officer 

position.’” (Id. at p. 955.) 

This court reversed: “The proper inquiry for a predominance 

analysis is whether ‘“questions of law or fact common to the class 

predominate over the questions affecting the individual members” [and] 

. . . does not require plaintiffs to show that an employer’s policy affected 

all members of the class.” (Lubin, supra, 5 Cal.App.5th at p. 955.) 

Additionally, because an employer does not have a “due process right to 

prove on an individualized basis that it provided off-duty rest periods to 

every class member[,] . . . [i]ndividualized inquiries into whether an 

employee had a required break on a specific day is relevant to damages, 
50

and ‘[t]he fact that individual [employees] may have different damages 

does not require denial of the class certification motion.’” (Id. at pp. 

955-956; see also Bradley v. Networkers Internat., LLC (2012) 211 

Cal.App.4th 1129, 1151 [“when an employer has not authorized and not 

provided legally required . . . rest breaks, the employer has violated the 

law and the fact that an employee may have actually taken a break . . . 

does not show that individual issues will predominate in the litigation”]; 

Jaimez v. Daiohs USA, Inc. (2010) 181 Cal.App.4th 1286, 1301 [that 

employees “may have different damages does not require denial of the 

class certification motion”].)

Naranjo’s “theory of liability—that [the employer] has a uniform 

policy, and that that policy, measured against wage order requirements, 

allegedly violates the law—is by its nature a common question 

eminently suited for class treatment.” (Brinker, supra, 53 Cal.4th at p. 

1033.) Individualized issues will relate only to damages. Commonality 

for a rest break class established, the typicality and superiority 

conditions are also satisfied. The order denying class certification of a 

rest break class must be reversed.

DISPOSITION

That portion of the judgment awarding the meal break subclass 

premium wages, but denying section 203 penalties, is affirmed. The 

portion of the judgment assessing section 226 penalties and awarding 

the meal break subclass attorney fees is reversed. The meal break 

subclass is entitled to prejudgment interest on the premium wages 
51

award at the rate of seven percent. The interlocutory order denying 

certification of a rest break class is reversed. The matter is remanded 

to the trial court with directions to award prejudgment interest at seven 

percent on the premium wages award and to certify a rest break class. 

In the interests of justice, the meal break subclass and Naranjo 

are awarded costs on appeal.

CERTIFIED FOR PUBLICATION

DUNNING, J.*

We concur:

WILLHITE, Acting P. J.

CURREY, J.

*Retired judge of the Orange Superior Court, assigned by the Chief

Justice pursuant to article VI, section 6 of the California Constitution.