Filed 12/28/18 (unmodified opn. attached)

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

KENNEDY DONOHUE,

Plaintiff and Appellant,

v.

AMN SERVICES, LLC,

Defendant and Respondent.

 D071865

 (Super. Ct. No. 37-2014-00012605-

CU-OE-CTL)

ORDER MODIFYING OPINION

NO CHANGE IN JUDGMENT

THE COURT:

It is ordered that the opinion filed herein on November 21, 2018 be modified as 

follows:

1. On page 31, line 4 of footnote 27, "1:24 p.m." is changed to "1:34 p.m.".

There is no change in the judgment.

HALLER, Acting P. J.

Copies to: All parties
Filed 11/21/18; Certified for Publication on 12/10/18 (unmodified version)

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

KENNEDY DONOHUE,

Plaintiff and Appellant,

v.

AMN SERVICES, LLC,

Defendant and Respondent.

 D071865

 (Super. Ct. No. 37-2014-00012605-

CU-OE-CTL)

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

Pressman, Judge. Affirmed.

Sullivan Law Group, William B. Sullivan, Eric K. Yaeckel and Clint S. Engleson 

for Plaintiff and Appellant.

DLA Piper, Mary Dollarhide and Betsey Boutelle for Defendant and Respondent.

In this wage and hour class and representative action, the trial court granted a 

motion for summary judgment brought by defendant AMN Services, LLC (AMN), and 

denied motions for summary adjudication of one cause of action and one affirmative 

defense brought by plaintiff Kennedy Donohue, individually and on behalf of five 

certified plaintiff classes she represents (together Plaintiffs). In her appeal from the 
2

judgment, Donohue challenges the grant of AMN's motion for summary judgment and 

the denial of her motion for summary adjudication of one of the causes of action. On 

appeal, Donohue also challenges what she characterizes as the trial court's "fail[ure] to 

hear a proper motion for reconsideration" of the summary judgment and summary 

adjudication rulings. 

As we explain, we lack jurisdiction to review the postjudgment order that resulted 

in the court's decision not to hear Donohue's motion for reconsideration, and in our de 

novo review of the summary judgment and summary adjudication rulings, we conclude 

that Donohue did not meet her burden of establishing reversible error. Accordingly, we 

affirm the judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

" 'Because this case comes before us after the trial court granted a motion for 

summary judgment, we take the facts from the record that was before the trial court when 

it ruled on that motion.' " (Wilson v. 21st Century Ins. Co. (2007) 42 Cal.4th 713, 716-

717.) We consider all the evidence in the moving and opposing papers, liberally 

construing and reasonably deducing inferences from Donohue's evidence, resolving any 

doubts in the evidence in Donohue's favor. (Id. at p. 717; Code Civ. Proc., § 437c, 

subd. (c).) For the most part, the relevant facts are not in dispute.

A. The Parties

AMN, a healthcare services and staffing company, recruits nurses for temporary 

contract assignments. AMN employed Donohue as a nurse recruiter in its San Diego 
3

office between September 2012 and February 2014. Donohue earned a base hourly rate 

plus commissions, bonuses, and other forms of nondiscretionary performance-based pay. 

B. AMN's Timekeeping System & Policies

During the time AMN employed Donohue, AMN used a computer-based 

timekeeping system known as "Team Time" for all nonexempt employees, which 

included nurse recruiters. Recruiters like Donohue used Team Time at their desktop 

computers by clicking on an icon to open the program each day, after which they usually 

made four entries: Recruiters would "punch in" for the day, "punch out" when they took 

a meal break, punch back in when they returned from their meal break, and punch out at 

the end of the day. 

Team Time rounded recruiters' punch times—both punch in and punch out—to the 

nearest 10-minute increment.1 To establish the proper hourly compensation, AMN 

would convert each 10-minute increment to a decimal (to the nearest hundredth of a 

minute),2 total the number of hours (to the nearest hundredth of a minute), and multiply 

the total hours by the recruiter's hourly rate. 

If a recruiter believed that a recorded punch time was inaccurate—e.g., the 

recruiter may have worked while not clocked in or forgotten to punch in or out—AMN's 

 

1 For example, all punch times between 7:55 a.m. and 8:04 a.m. would record as 

8:00 a.m., and all punch times between 8:05 a.m. and 8:14 a.m. would record as 8:10 a.m.

2 For example, 20 minutes would be .333 hours, which would convert to .33 hours; 

and 40 minutes would be .666 hours, which would convert to .67 hours. At times, we 

refer to this format as "decimal hours."
4

written policy allowed the recruiter to contact his or her manager, who would then notify 

the recruiter that his or her computer timecard had been unlocked and opened for 

correction by the recruiter. 

Recruiters did not have predetermined times during which they were required to 

take meal or rest breaks, but AMN had a written policy by which recruiters were: 

"provided meal breaks and authorized and permitted rest breaks in accordance with 

California law;"3 "expected to take meal breaks as provided and rest breaks as authorized 

and permitted and in accordance with this policy"; and "required to accurately record 

their meal breaks on their time cards and to report to the Company if they are not 

provided with a meal break or authorized and permitted a rest break or do not otherwise 

take a meal break." More specifically, this written policy provided: "[Recruiters] who 

work more than five hours per day are provided an uninterrupted 30 minute meal period 

no later than the end of the [recruiter]'s fifth hour of work. If a [recruiter] works more 

 

3 "An employer may not employ an employee for a work period of more than five 

hours per day without providing the employee with a meal period of not less than 30 

minutes . . . ." (Lab. Code, § 512, subd. (a).) (Further undesignated statutory references 

are to the Labor Code.)

In general, California employers are required to provide rest periods of a specified 

minimum duration—e.g., 10 minutes of paid rest for every four hours worked; and for 

shifts of less than four hours, a 10-minute rest period after three and a half hours. (Cal. 

Code Regs., tit. 8, §§ 11010-11150, subd. (12)(A) & § 11160, subd. (11)(A).) (Further 

undesignated regulation references (tit. 8) are to the California Code of Regulations.)

"An employer shall not require an employee to work during a meal or rest or 

recovery period mandated pursuant to an applicable statute, or applicable regulation . . . ." 

(§ 226.7, subd. (b).)
5

than five but no more than six (6) hours in a workday, the meal period may be waived by 

mutual consent of the Company and [the recruiter]." 

Whenever there was noncompliance with the meal period requirements—e.g., if 

the recruiter did not punch out to take a meal period before the end of the fifth hour of 

work, or if the meal period was less than 30 minutes—AMN had a policy in place to 

ensure what it considered an appropriate remedy. During the first few weeks of 

Donohue's employment in September 2012, for any noncompliant meal period, Team 

Time assumed a Labor Code violation, and the recruiter automatically received the full 

statutory meal period penalty payment.4 At all relevant times after mid-September 2012, 

if a recruiter's meal period was missed, shortened, or delayed, Team Time automatically 

provided a drop-down menu that required the recruiter's response. If the recruiter 

indicated that he or she chose not to take a timely 30-minute meal period, then AMN did 

not pay a meal period penalty; however, if the recruiter indicated that he or she was not 

provided the opportunity to take a timely 30-minute meal period, then AMN paid the 

recruiter the full statutory meal period penalty.5 We note that Brinker Restaurant Corp. 

v. Superior Court (2012) 53 Cal.4th 1004 (Brinker) became final in May 2012 and that 

AMN changed its policy to provide the drop-down menu in September 2012. We infer 

that AMN effected the change in an effort to comply with the holding in Brinker, where 

 

4 During Donohue's first two weeks of employment by AMN, her time entries 

triggered one such meal period violation, and AMN paid Donohue the appropriate 

penalty. 

5 After mid-September 2012, once Team Time required the recruiter to complete the 

drop-down menu for any noncompliant meal period, on 31 occasions, Donohue selected 

the option stating that she had been provided the opportunity, but chose not, to take a 

nonworking 30-minute meal period before the end of the fifth hour of work. Donohue

never selected the option stating that AMN did not provide a compliant meal period. 
6

the Supreme Court concluded that, although "an employer's obligation is to relieve its 

employee of all duty" during a meal period, "the employer need not ensure that no work 

is done"; rather, "the employee [is] thereafter at liberty to use the meal period for 

whatever purpose he or she desires." (Id. at p. 1017.)

AMN's written policy directed recruiters to "accurately record their meal breaks 

every day" as follows: "[Recruiters] should 'clock out' on their timesheet at the start of 

their meal period and 'clock in' when they return to work. Meal breaks are unpaid. 

[Recruiters] who are not provided a meal period as defined above will receive payment 

for hours worked and an additional hour's pay. [Recruiters] who waive a meal period as 

permitted by this policy, or who otherwise do not take a meal period which was provided 

as defined above, are paid for hours worked. [Recruiters] who do not take a full and 

timely meal period for any reason must report this on their time sheets and must also 

report if they were provided or not provided, as defined in this policy, with the meal 

period. [Recruiters] who report that they were provided a timely and full meal break but 

did not take it, took a shorter break or a later break are representing that he/she did so

voluntarily." 

In addition to hourly compensation, AMN also paid nurse recruiters like Donohue

"different types of non-discretionary commissions, performance bonuses, and other 

incentive pay."6 These bonuses, which may be earned monthly or quarterly, are often 

 

6 The details of these incentives are contained in formal publications from AMN, 

copies of which were included as exhibits in support of AMN's summary judgment 

motion. 
7

due and calculable only after the pay period during which the work was performed; and 

in the event additional overtime must be paid on such amounts, it is calculated by a 

complex formula. These bonus-related overtime adjustments—which are not tied to the 

recruiter's hourly wage but rather are "the mathematical equivalent of calculating the 

bonus into the [recruiter's] regular rate of pay"—are denoted as "Flsa Ot" on the 

recruiter's wage statement.7

C. The Litigation

Donohue filed the underlying wage and hour action in April 2014. The operative 

second amended complaint (complaint), filed on behalf of Donohue individually and a 

class of similarly situated AMN employees and former employees, contains allegations in 

support of the following seven causes of action: (1) failure to provide meal and rest 

periods in violation of sections 226.7 and 1197.1; (2) failure to pay overtime and 

minimum wage in violation of sections 510 and 1197.1; (3) improper wage statements in 

violation of section 226; (4) unreimbursed business expenses in violation of section 2802; 

(5) waiting time penalties in violation of sections 201-203; (6) unfair business practices 

in violation of Business and Professions Code section 17200; and (7) civil penalties 

authorized by the Labor Code Private Attorneys General Act of 2004 (PAGA), 

section 2698 et seq. 

In October 2015, the trial court certified five classes of nonexempt AMN

employees with the title of "Recruiter": (1) the overtime class; (2) the meal period class; 

 

7 At times, AMN refers to the bonus-related retroactive overtime adjustment as a 

"true-up." 
8

(3) the rest period policy class; (4) the itemized wage statement class; and (5) the 

ex-employee class (of former AMN employees who are entitled to relief based on 

violations proven to the four prior classes of current AMN employees). The court denied 

class certification to Donohue's claims related to unreimbursed business expenses, which 

were based on an employee's use of a personal cell phone for AMN business. 

Almost a year later, in September 2016, the parties filed cross-motions: AMN

sought summary judgment, or in the alternative, summary adjudication of eight 

individual issues (which, if granted as to each issue, would result in summary 

judgment);8 and Donohue sought summary adjudication of two issues. AMN and 

Donohue filed numerous pleadings in support of their respective motions; AMN and 

Donohue filed numerous pleadings in opposition to their adversary's motion; AMN and 

Donohue filed replies to their adversary's oppositions; AMN and Donohue filed 

objections to specified evidence submitted by their adversary; and AMN and Donohue

responded to the evidentiary objections of their adversary. Following oral argument, the 

court took the matter under submission, ultimately granting AMN's motion for summary 

judgment and denying Donohue's motion for summary adjudication. More specifically, 

the court sustained certain evidentiary objections, overruled other evidentiary objections, 

granted summary adjudication of all eight issues in AMN's motion—thereby resulting in 

 

8 In an amended notice and motion filed a month later, AMN sought essentially the 

same relief, relying exclusively on the supporting documentation filed in support of the 

September 2016 motion. 
9

the grant of summary judgment—and denied summary adjudication of the two issues 

raised in Donohue's motion. 

In December 2016, Donohue filed a motion for reconsideration of the order 

granting AMN's motion for summary judgment and denying Donohue's motion for 

summary adjudication. 

Two days later, on December 14, 2016, the trial court filed its judgment in favor of 

AMN and against Donohue, based on the grant of AMN's motion for summary judgment 

and the denial of Donohue's motion for summary adjudication. 

In January 2017, Donohue filed an ex parte application for an order striking the 

filing of the judgment (so that the court could hear her pending motion for 

reconsideration of the order granting AMN's motion for summary judgment and denying 

Donohue's motion for summary adjudication) and allowing her to file a supplemental 

brief in support of her motion for reconsideration. The court denied the application and 

"vacated" Donohue's pending motion for reconsideration. 

Donohue timely appealed from the judgment in February 2017. 
10

II. STANDARDS OF APPELLATE REVIEW

Because the trial court's judgment is presumed correct, Donohue (as the appellant) 

has the burden of establishing reversible error. (Denham v. Superior Court (1970) 2 

Cal.3d 557, 564 (Denham); Demara v. The Raymond Corp. (2017) 13 Cal.App.5th 545, 

552 (Demara) [appeal from defense summary judgment].)

A. Summary Proceedings Under Code of Civil Procedure Section 437c.

In both summary judgment and summary adjudication proceedings, with 

exceptions inapplicable here, the pleadings—i.e., the complaint and the answer—

determine the scope of the relevant issues. (Port Medical Wellness, Inc. v. Connecticut 

General Life Ins. Co. (2018) 24 Cal.App.5th 153, 169.)

A defendant's motion for summary judgment asks the court to determine, as a 

matter of law, that the entire action has no merit. (Code Civ. Proc., § 437c, subd. (a).) A 

cause of action "has no merit" if one or more of the elements of the cause of action 

cannot be established or an affirmative defense to the cause of action can be established. 

(Code Civ. Proc., § 437c, subd. (o).) As applicable here, a defendant's motion for 

summary adjudication may ask the court to determine, as a matter of law, that one or 

more causes of action or one or more claims for damages have no merit. (Code Civ. 

Proc., § 437c, subd. (f)(1).) 

A plaintiff's motion for summary judgment asks the court to determine, as a matter 

of law, that the defendant has no defense to the action. (Code Civ. Proc., § 437c, 

subd. (a).) A successful motion for summary judgment terminates the action without a 

trial. (Ibid.) As applicable here, a plaintiff's motion for summary adjudication asks the 
11

court to determine, as a matter of law, that there are no affirmative defenses to one or 

more causes of action or to one or more claims for damages. (Code Civ. Proc., § 437c, 

subd. (f)(1).)

To be successful, a summary adjudication motion must completely dispose of the 

entire cause of action, defense, damages claim, or duty to which the motion is directed. 

(Code Civ. Proc., § 437c, subd. (f)(1).) A successful motion for summary adjudication 

eliminates the need to prove or disprove a particular claim, leaving the remainder of the 

case to go to trial—after which one judgment is entered covering the issues decided in the 

motion and the trial. (Code Civ. Proc., § 437c, subds. (k), (n).) A summary adjudication 

motion "proceed[s] in all procedural respects as a motion for summary judgment." (Code 

Civ. Proc., § 437c, subd. (f)(2).)

We review de novo the trial court's order granting or denying summary judgment 

or summary adjudication. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860 

(Aguilar) [summary judgment]; Jacks v. City of Santa Barbara (2017) 3 Cal.5th 248, 273 

[summary adjudication].) As a practical matter, " ' "we assume the role of a trial court 

and apply the same rules and standards" ' " which govern the trial court's determination of 

the motion in the first instance. (Demara, supra, 13 Cal.App.5th at p. 552.) 

B. Standards Applicable to the Grant of AMN's Motion for Summary Judgment

A moving defendant has the ultimate burden of persuasion that one or more 

elements of the cause of action at issue "cannot be established" or that "there is a 

complete defense to the cause of action." (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar,

supra, 25 Cal.4th at pp. 849, 850, 853-854.) In attempting to achieve this goal, the 
12

defendant has the initial burden of production to make a prima facie showing of the 

nonexistence of any triable issue of material fact. (Aguilar, at pp. 850-851.) If the 

defendant meets this burden, then the burden of production shifts to the plaintiff to 

establish the existence of a triable issue of material fact. (Ibid.)

Applying these concepts in our de novo review of the grant of summary judgment

here, therefore, we first must determine whether AMN's initial showing establishes an 

entitlement to judgment in AMN's favor. (Aguilar, supra, 25 Cal.4th at pp. 850-851; 

Demara, supra, 13 Cal.App.5th at p. 552.) If so, we then determine whether Donohue's

responsive showing establishes a triable issue of material fact. (Aguilar, at pp. 850-851;

Demara, at p. 552.)

C. Standards Applicable to the Denial of Donohue's Motion for Summary 

Adjudication

A moving plaintiff has the ultimate burden of persuasion that "there is no defense 

to a cause of action," but only after that plaintiff first "has proved each element of the 

cause of action entitling the party to judgment." (Code Civ. Proc., § 437c, subd. (p)(1);

Aguilar, supra, 25 Cal.4th at pp. 849, 850.) In attempting to achieve this goal, the 

plaintiff has the initial burden of production to make a prima facie showing of the 

nonexistence of any triable issue of material fact. (Aguilar, at pp. 850-851.) If the 

plaintiff meets this burden, then the burden of production shifts to the defendant to 

establish the existence of a triable issue of material fact. (Ibid.)

Applying these concepts in our de novo review of the denial of summary 

adjudication here, therefore, we first must determine whether Donohue's initial showing 
13

establishes an entitlement to judgment in her favor on the particular cause of action or 

defense. (Aguilar, supra, 25 Cal.4th at pp. 850-851.) If so, we then determine whether

AMN's responsive showing establishes a triable issue of material fact either as to an 

element of Donohue's cause of action or as to an applicable affirmative defense of AMN. 

(Aguilar, at pp. 850-851.)

III. DISCUSSION

We begin with the recognition, understanding, and appreciation that the purpose of 

the California statutes governing the employment relationship is "the protection of 

employees"; and, for that reason, we " 'liberally construe the Labor Code and wage 

orders[9] to favor the protection of the employees.' " (Troester, supra, 5 Cal.5th at 

p. 839; accord, Prachasaisoradej v. Ralphs Grocery Co., Inc. (2007) 42 Cal.4th 217, 227

[because statutes governing the employer/employee relationship are "remedial in nature," 

they must be liberally construed "with an eye to promoting the worker protections they 

were intended to provide"].)

AMN's motion for summary judgment, or in the alternative, summary 

adjudication, is comprised of motions for summary adjudication of the following eight 

issues: 

 

9 The Industrial Welfare Commission is the state agency "empowered to promulgate 

wage orders, which are legislative regulations specifying minimum requirements with 

respect to wages, hours, and working conditions." (Augustus v. ABM Security Services, 

Inc. (2016) 2 Cal.5th 257, 281, fn. 5.) The wage orders that the commission adopts " 'are 

to be accorded the same dignity as statutes' . . . [and] take precedence over the common 

law to the extent they conflict." (Troester v. Starbucks Corp. (2018) 5 Cal.5th 829, 839

(Troester).)
14

• AMN Issue No. 1—"AMN is entitled to summary adjudication on Plaintiffs'

certified overtime claim because AMN's methods of calculating and paying 

overtime compensation are lawful."

• AMN Issue No. 2—"AMN is entitled to summary adjudication on Plaintiffs'

certified meal period claim because there is no evidence of a uniform policy or 

practice to deny meal periods, and because Plaintiffs' theory that the rounding 

practice resulted in meal period violations is not pled in the operative Complaint."

• AMN Issue No. 3—"AMN is entitled to summary adjudication on Plaintiffs'

certified rest period claim because there is no evidence of a uniform policy or 

practice to deny rest periods."

• AMN Issue No. 4—"AMN is entitled to summary adjudication on Plaintiffs'

certified claims for wage statement violations because the format of AMN's wage 

statements is lawful, and because Plaintiffs' wage-statement claims are otherwise 

derivative of their other claims under the California Labor Code, which also fail."

• AMN Issue No. 5—"AMN is entitled to summary adjudication on Plaintiffs'

certified claim for waiting time penalties because it is derivative of Plaintiffs' other 

claims under the California Labor Code, which also fail."10

• AMN Issue No. 6—"AMN is entitled to summary adjudication of Plaintiffs' claim 

for violations of Business and Professions Code section 17200 because Plaintiffs 

have identified no 'unlawful, unfair, or fraudulent' conduct that could support this 

claim as a matter of law."11

• AMN Issue No. 7—"AMN is entitled to summary adjudication on Plaintiff 

Donohue's claim for penalties under [PAGA, section ]2698 et seq., because this 

 

10 Donohue does not mention this issue in her appellate briefs. Thus, she has 

forfeited appellate review of the ruling granting the motion. (Atempa v. Pedrazzani

(2018) 27 Cal.App.5th 809, 830 (Atempa) [citing Cal. Rules of Court, 

rule 8.204(a)(1)(B)]; Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 

939, 956 (Cahill) [when appellant fails to provide " ' "reasoned argument and citations to 

authority, we treat the point as waived" ' "].) Accordingly, we affirm the trial court's 

ruling as to AMN Issue No. 5.

11 Donohue does not mention this issue in her appellate briefs. Thus, she has 

forfeited appellate review of the ruling granting the motion. (Atempa, supra, 27

Cal.App.5th at p. 830; Cahill, supra, 194 Cal.App.4th at p. 956.) Accordingly, we affirm 

the trial court's ruling as to AMN Issue No. 6.
15

claim is derivative of Plaintiffs' other claims under the California Labor Code,

which also fail, and because Donohue has failed to exhaust her administrative 

remedies."

• AMN Issue No. 8—"AMN is entitled to summary adjudication on Plaintiff 

Donohue's individual claim for unreimbursed business expenses because she 

cannot meet her burden to show that she actually incurred such expenses."12

In support of its alternative motion, AMN argued that, if each of the eight issues is 

summarily adjudicated in its favor, then there is no triable issue of material fact in the 

complaint, and AMN is entitled to summary judgment as a matter of law. 

In her motion, Donohue sought summary adjudication of the following two issues: 

• Donohue Issue No. 1—"[AMN] possessed a standard time system in place for all 

members of the certified class which improperly alters the recorded meal periods. 

This policy violates California law in multiple ways. . . ."

• Donohue Issue No. 2—"[AMN's] 40th Affirmative Defense regarding 'Make Up 

Time,' pursuant to [section ]513, cannot be established as a matter of law . . . ."13

On appeal, Donohue contends that, if the trial court had not erroneously denied summary 

adjudication of Donohue Issue No. 1, she and the meal period class would be entitled to 

$802,077.07 in meal period penalties—presumably based on the first cause of action for 

failure to provide meal and rest periods. 

 

12 On appeal, Donohue affirmatively states that she is not challenging the court's 

ruling granting AMN's motion as to this issue (unreimbursed business expenses). 

Accordingly, we affirm the trial court's ruling as to AMN Issue No. 8.

13 On appeal, Donohue raises no argument as to the denial of the motion as to 

Donohue Issue No. 2. Thus, she has forfeited appellate review of this ruling. (Atempa, 

supra, 27 Cal.App.5th at p. 830); Cahill, supra, 194 Cal.App.4th at p. 956.) Accordingly, 

we affirm the trial court's ruling as to Donohue Issue No. 2, although we do mention it 

further at part III.E., post. 
16

Donohue does not present her arguments on appeal in a format by which we might 

review each motion for summary adjudication or each cause of action in the complaint. 

As a result, we are required to discuss each of Donohue's issues as Donohue presents 

them in her opening brief in the context of the parties' motions in the trial court and the 

trial court's rulings. As we explain, because Donohue did not meet her burden of 

establishing reversible error on appeal, we affirm the judgment.

First, however, we explain why this court lacks jurisdiction to consider the trial 

court's January 2017 postjudgment order denying Donohue's ex parte application.

A. The Court Lacks Jurisdiction to Consider the January 2017 Postjudgment Order

In this appeal, the parties briefed issues related to the postjudgment minute order 

denying Donohue's ex parte application to strike entry of the judgment (to allow the court 

to hear Donohue's motion for reconsideration) and to allow Donohue to file a 

supplemental brief in support of her motion for reconsideration. The briefing did not 

include a mention of jurisdiction to review this order, and we requested and received 

supplement briefing.

As a postjudgment order that denies a motion to "strike" the entry of a document 

or to file a supplemental brief, the January 2017 minute order was final and appealable. 

(Code Civ. Proc., § 904.1, subd. (a)(2).) However, in her written notice, Donohue

appealed only from the "judgment . . . entered on December 14, 2016." She did not 

appeal from the postjudgment order, and "if an order is appealable, [an] appeal must be 

taken or the right to appellate review is forfeited." (In re Baycol Cases I & II (2011) 51 

Cal.4th 751, 761, fn. 8; accord Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 
17

1315-1316 [" ' "[i]f a judgment or order is appealable, an aggrieved party must file a 

timely appeal or forever lose the opportunity to obtain appellate review" ' "].) This is a 

jurisdictional principle; an appellate court lacks the power to review an appealable order 

if a timely appeal is not taken.14 (Van Beurden Ins. Services, Inc. v. Customized 

Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56; see Code Civ. Proc., 

§ 906.) 

Alternatively, to the extent the January 2017 postjudgment order can be 

considered a denial of a nonstatutory motion to vacate (as oppose to strike) the judgment, 

such an order is not appealable. (Scognamillo v. Herrick (2003) 106 Cal.App.4th 1139, 

1146 [to hold otherwise would authorize two appeals from the same decision; any 

assertions of error in the judgment can be reviewed on appeal from the judgment 

itself15]; Forman v. Knapp Press (1985) 173 Cal.App.3d 200, 203 [nonstatutory motion 

to vacate a summary judgment is "akin to a motion for new trial," the denial of which is 

not appealable].) 

Donohue argues that she was not required to separately appeal from the 

postjudgment order. Despite the express language of the written order (denying the 

application to strike entry of the judgment and to allow supplemental briefing on her 

 

14 At the outside, the time to appeal from the January 2017 postjudgment order was 

180 days after entry of the order (Cal. Rules of Court, rule 8.104(a)(1)(C))—which, in 

this case expired in July 2017.

15 Indeed, at part III.G., post, based on Donohue's argument in support of her appeal 

from the judgment, we will consider the principal argument Donohue presented in her 

motion for reconsideration.
18

then-pending motion for reconsideration of the order granting summary judgment), 

Donohue tells us that the order "actually denied the pending motion for reconsideration 

without a hearing." (Original italics and bolding.) She then suggests that, even though 

she did not appeal from the postjudgment order, Code of Civil Procedure section 1008 

allows for appellate review, because, under subdivision (g), although an order denying a 

motion for reconsideration is generally not appealable, "if the order that was the subject 

of a motion for reconsideration is appealable, the denial of the motion for reconsideration 

is reviewable as part of an appeal from that order." There are at least two independent 

problems with Donohue's position. 

First, the present appeal is from the judgment, not from the order granting AMN's 

motion for summary judgment; nor could it be, since an order granting summary 

judgment is not appealable (Dang v. Maruichi American Corp. (2016) 3 Cal.App.5th 604, 

608, fn. 1). Thus, subdivision (g) of Code of Civil Procedure section 1008 is 

inapplicable.

Moreover, contrary to Donohue's presentation in her supplement brief, the order 

denying Donohue's ex parte application did not deny her then-pending motion for 

reconsideration; the order denied Donohue's request to file an additional brief in support 

of the then-pending motion for reconsideration and then "vacate[d]" the motion and the 

hearing on the motion. The record is consistent: (1) In her application, Donohue

requested an order "Striking the Court's entry of judgment as premature" and "Allowing 

[Donohue] to file a brief supplement to her [pending] Motion for Reconsideration"; (2) in 

support of the application, Donohue's attorney testified that the relief being sought in the 
19

application was "an order striking the entry of judgment as premature and seeking 

permission to file a supplement to the motion for reconsideration"; and, (3) in its written 

order denying Donohue's request, the court described the proceeding as Donohue's 

"application for an order striking judgment and allow[ing Donohue] to supplement [her] 

motion for reconsideration." 

For the foregoing reasons, we lack jurisdiction to consider the January 2017 

postjudgment order and express no opinion on the merits of the ruling(s) in the order. 

B. The Trial Court Did Not Err in Ruling That, for Purposes of the Cross-Motions, 

AMN's Rounding Policy Complies with California Law

At least three of the parties' motions for summary adjudication required the trial 

court to determine whether AMN's timekeeping system for recruiter employees—in 

particular, AMN's rounding policy—complied with California law.16 Thus, we analyze 

this issue first and, as we explain, conclude that, based on the record in this appeal, the 

rounding policy is compliant.

In California, the rule is that an employer is entitled to use a rounding policy "if 

the rounding policy is fair and neutral on its face and 'it is used in such a manner that it 

will not result, over a period of time, in failure to compensate the employees properly for 

all the time they have actually worked.' " (See's Candy Shops, Inc. v. Superior Court

(2012) 210 Cal.App.4th 889, 907 (See's Candy I), quoting 29 C.F.R. § 785.48(b) 

 

16 These motions include: AMN Issue No. 1; AMN Issue No. 2; and Donohue Issue 

No. 1. (See pts. III.D., III.B.1. & III.B.2., respectively, post.)
20

(2012)17 and citing Division of Labor Standards Enforcement (DLSE) Enforcement 

Policies and Interpretations Manual (2002 rev.) §§ 47.1, 47.2 (DLSE Manual)18.) 

Under this standard, an employer's rounding policy is "fair and neutral" if " 'on 

average, [it] favors neither overpayment nor underpayment' "; but such a policy is 

unacceptable if it " 'systematically undercompensate[s] employees' " because it

 

17 The United States Department of Labor adopted a regulation (29 C.F.R. § 785.48) 

under the federal Fair Labor Standards Act (FLSA; 29 U.S.C. § 201 et seq.) which 

permits employers to use time-rounding policies in certain circumstances. 

(See's Candy I, supra, 210 Cal.App.4th at p. 901.) In full, 29 Code of Federal 

Regulations section 785.48(b) is entitled " 'Rounding' practices" and provides: "It has 

been found that in some industries, particularly where time clocks are used, there has 

been the practice for many years of recording the employees' starting time and stopping 

time to the nearest 5 minutes, or to the nearest one-tenth or quarter of an hour. 

Presumably, this arrangement averages out so that the employees are fully compensated 

for all the time they actually work. For enforcement purposes this practice of computing 

working time will be accepted, provided that it is used in such a manner that it will not 

result, over a period of time, in failure to compensate the employees properly for all the 

time they have actually worked." (Italics added.)

18 The DLSE is the California state agency charged with enforcing wage and hour 

laws. (See's Candy I, supra, 210 Cal.App.4th at p. 902.) Statements in the DLSE

Manual are not binding on the courts, but merely persuasive. (Id. at pp. 902-903.) The 

DLSE has adopted the federal standard set forth at 29 C.F.R. section 785.48(b), quoted at 

footnote 17, ante: "The [DLSE] utilizes the practice of the U.S. Department of Labor of 

'rounding' employee's hours to the nearest five minutes, one-tenth or quarter hour for 

purposes of calculating the number of hours worked pursuant to certain restrictions." 

(DLSE Manual, supra, § 47.1, quoted in See's Candy I, supra, 210 Cal.App.4th at 

p. 902.) Further relying on this federal standard, See's Candy I also quoted as follows 

from section 47.2 of the DLSE Manual: " 'There has been [a] practice in industry for 

many years to follow this practice, recording the employees' starting time and stopping 

time to the nearest 5 minutes, or to the nearest one-tenth or quarter of an hour. 

Presumably, this arrangement averages out so that the employees are fully compensated 

for all the time they actually work. For enforcement purposes this practice of computing 

working time will be accepted by DLSE, provided that it is used in such a manner that it 

will not result, over a period of time, in failure to compensate the employees properly for 

all the time they have actually worked.' " (See's Candy I, at p. 902, italics added.)
21

" 'encompasses only rounding down.' " (See's Candy I, supra, 140 Cal.App.4th at 

pp. 901-902, 907.) In See's Candy I, we reasoned that if an employer's rounding policy 

"is neutral, both facially and as applied, the practice is proper under California law 

because its net effect is to permit employers to efficiently calculate hours worked without 

imposing any burden on employees." (Id. at p. 903.) Federal and state appellate courts 

have applied this standard to California employers consistently since See's Candy I, 

supra, 210 Cal.App.4th 889, in 2012. (E.g., AHMC Healthcare, Inc. v. Superior Court

(2018) 24 Cal.App.5th 1014, 1023-1024 (AHMC Healthcare) [rounding to nearest 

quarter hour]; Silva v. See's Candy Shops, Inc. (2016) 7 Cal.App.5th 235, 249 

(See's Candy II) [rounding to nearest 10th of an hour]; Corbin v. Time Warner 

Entertainment–Advance/Newhouse Partnership (9th Cir. 2016) 821 F.3d 1069, 1076 

(Corbin) [rounding to nearest quarter hour].) Indeed, earlier this year, in Troester, supra, 

5 Cal.5th 829, our Supreme Court approvingly cited the See's Candy I rule and analysis 

set forth above (Troester, at pp. 846-847)—although the court did not apply 

See's Candy I, because the issue in Troester was whether "the de minimis doctrine found 

in the FLSA," not the See's Candy I rounding standard, applied to the facts in that case 

(Troester, at p. 848).

In the present case, in support of its motion and in opposition to Donohue's 

motion, AMN submitted evidence in the form of expert testimony from a labor economist 

who analyzed AMN's recruiter employees' time records from April 23, 2010, through 

April 26, 2015 (rounding period). He explained that, under AMN's time entry system, 

the records contain two entries for each employee "punch"—(1) the actual time that the 
22

employee clocked in or out, and (2) the nearest 10-minute increment up or down. (See 

fn. 1, ante.) AMN paid its employees on the basis of the rounded, not actual, times 

clocking in and out. 

With regard to Donohue and the nurse recruiters, AMN's expert analyzed the time 

records during the rounding period logged by 311 recruiters—time records that reflected 

more than 500,000 work-hours. Based on his detailed analysis, the expert testified that 

AMN's practice of rounding punch times to the nearest 10-minute increment resulted 

overall in "a net surplus of 1,929 work hours in paid time for the Nurse Recruiter class as 

a whole."19 (Italics added.) 

As to the ultimate issues, the expert opined: "The ten-minute rounding rule is thus 

neutral; in the long run, neither the employer nor the employee benefits from this policy. 

[¶] . . . [¶] . . . AMN's practice of rounding employee punch times to the nearest tenminute increment did not result in any failure, over time, to properly compensate the

Nurse Recruiters as a class for all time they actually worked." (Italics added.) By this 

evidence and the related evidence and argument that it paid all wages due based on its 

calculation of the hours its recruiters worked, on this record AMN met its initial burden 

of establishing that AMN's rounding policy is lawful.

 

19 With regard to Donohue personally, during the rounding period, AMN's practice 

of rounding punch times to the nearest 10-minute increment resulted in a net surplus of 

9.82 hours—which is an overpayment of approximately $151.03 based on Donohue's 

hourly wage. 
23

In an effort to meet her responsive burden, Donohue relied on the expert testimony 

of a statistics professor.20 In her response to AMN's separate statement, Donohue

disputed AMN's evidence set forth above as follows: "[Donohue's] expert . . . found that 

the Team Time system resulted in AMN failing to pay its employees for 2,631.583 hours 

of actual time worked. This amounted to $47,959.30 in unpaid compensation owed to the 

class." However, as the trial court correctly ruled, this evidence from Donohue did not 

establish the existence of a triable issue of fact as to whether AMN's rounding policy was 

lawful, because Donohue's expert only considered the recruiters' uncompensated time as 

a result of " 'Short Lunches' " and " 'Delayed Lunches.' "21 Because he did not consider 

evidence that Plaintiffs may have gained (and, in fact, did gain) compensable work time 

by the rounding policy, he necessarily did not offset the amounts of uncompensated time 

 

20 Actually, Donohue submitted the expert's declaration in support of her motion for 

summary adjudication with no mention of the declaration in her brief in her opposition to 

AMN's motion. Donohue did cite to the declaration in her response to AMN's separate 

statement, which the trial court considered in ruling on AMN's motion; and AMN

responded to this evidence in its appellate brief on this issue. Therefore, we consider this 

evidence on appeal as well. We begin by noting that, in her opening brief on appeal, 

Donohue does not once mention AMN's expert—or even the fact that AMN presented 

expert testimony—let alone discuss the expert evidence or attempt to apply it to the 

procedural (summary judgment law) or substantive (wage and hour law) issues in the 

appeal. 

21 At oral argument, counsel for Donohue stated more than once that the trial court 

erred by not considering Donohue's expert's testimony. The record does not support 

counsel's statement. The court considered and rejected the expert's opinions as to the 

neutrality of AMN's rounding policy, expressly explaining its reasoning in its order 

granting AMN's motion. 
24

by amounts of time for which Plaintiffs were compensated but not working.22

Accordingly, Donohue did not meet her responsive burden of establishing a triable issue 

of material fact under the applicable legal standard for determining whether AMN's 

rounding policy complied with California law.23 (See Aguilar, supra, 25 Cal.4th at 

pp. 850-851.)

On this record, therefore, for purposes of AMN's motion, AMN established that 

AMN's rounding policy during the rounding period was—in the language of 

See's Candy I, supra, 210 Cal.App.4th at page 907—"fair and neutral on its face and . . .

'used in such a manner that it [did] not result, over a period of time, in failure to 

compensate the [recruiter] employees properly for all the time they have actually 

 

22 For example, assume that the deadline for offering a recruiter a timely meal period 

is 1:00 p.m. (i.e., before the end of the fifth hour of work), but that the recruiter is not 

offered the meal period until 1:04 p.m. Under AMN's rounding policy, the meal period is 

timely because the actual punch of 1:04 p.m. is considered 1:00 p.m. Donohue's expert's 

testimony is that, in this example, AMN's rounding policy results in at least one violation 

(i.e., no meal break before the end of the fifth hour of work) and potentially second 

violation (i.e., if the recruiter punches back in at any time between 1:25 p.m. and 

1:33 p.m., since such a punch is considered 1:30 p.m., yet the actual time of the meal 

period is less than 30 minutes). However, in forming his opinions, Donohue's expert 

failed to consider the situation where 1:00 p.m. is the deadline for a timely meal period, 

where the recruiter takes a meal period break at 12:55 p.m. (which is considered 

1:00 p.m.) or punches back in at 1:34 p.m. (which is considered 1:30 p.m.). In both of 

these hypotheticals, the recruiter received credit for work and payment of wages for time 

during which the recruiter was on a meal period break.

23 To the extent Donohue attempted to prove, as part of her motion, that AMN's 

rounding policy violated California law, Donohue's showing (described in the text, ante) 

was insufficient to meet her initial burden; i.e., the burden never shifted to AMN to 

establish the existence of a triable issue of material fact under Aguilar, supra, 25 Cal.4th 

at pages 850-851.
25

worked.' " We apply this conclusion, as appropriate, to various arguments Donohue

raises in her appeal.

C. The Trial Court Did Not Err in Deciding Issues Related to the Meal Period Claims

In general, California law requires that an employee who works a shift of more 

than five hours at one time must be allowed "a meal period of not less than 30 minutes." 

(§ 512, subd. (a); tit. 8, § 11040, subd. 11(A).) If an employer fails to provide an 

employee with such a meal period, then the employer must pay the employee one 

additional hour of pay for each workday that the meal period is not provided. (§ 226.7, 

subd. (c); tit. 8, § 11040, subd. 11(B).) 

1. The Trial Court Did Not Err in Granting AMN's Motion for Summary 

Adjudication AMN Issue No. 2

The trial court granted AMN's motion for summary adjudication of AMN Issue 

No. 2, which was directed to Donohue's meal period claim on two independent grounds: 

(1) There was no evidence of a uniform policy or practice to deny meal periods; and 

(2) Donohue did not plead in the complaint that the rounding practice resulted in meal 

period violations.

Donohue contends that "time record evidence can establish meal period 

violations," citing and quoting from Safeway, Inc. v. Superior Court (2015) 238 

Cal.App.4th 1138, 1159-1160 (Safeway), and Lubin v. The Wackenhut Corp. (2016) 5 

Cal.App.5th 926, 951 (Lubin). Based on those authorities, Donohue then argues that, 

because she provided evidence of "over 45,000 shortened and delayed meal periods" 

directly from recruiters' time records (some capitalization and bolding omitted), the trial 
26

court erred in granting AMN's motion directed to Donohue's meal period claim. More 

specifically, Donohue relies on the evidence from her expert who testified that, based on 

the actual times the recruiters punched out and in for their meal periods during the 

rounding period, there were 40,110 " 'short' meal periods" (i.e., less than 30 minutes) and 

6,651 " 'delayed' meal periods" (i.e., not offered until after the end of the fifth hour). 

According to Donohue, any time records that establish a meal period violation 

" 'immediately' " entitle the recruiter to a premium wage penalty payment. (Bolding 

omitted.) 

As we explained at part III.B. and footnote 22, ante, however, because Donohue's 

expert based his testimony on the actual times the recruiters punched out and in for their 

meal period, he neither considered nor accounted for an application of AMN's rounding 

policy to the actual meal period punches. Thus, in response to AMN's evidence that 

AMN's rounding policy was fair and neutral on its face and used in such a manner that, 

over time, recruiters were compensated properly for the time they worked, Donohue's 

evidence did not raise the existence of a triable issue of material fact as to the effect of 

the rounding policy on the recruiters' actual punches when taking and returning from 

meal periods.

Instead, Donohue argues that a rounding policy should never be applied to meal 

period time punches, because application of such a policy "is contrary to the plain 

language of the Labor Code [and a wage order.]" (Bolding and some initial capitalization 

omitted.) Quoting from section 512 and title 8, section 11040, subdivision 11, Donohue 

argues that, because the express terms of both the statute and regulation "require that 
27

employees be provided 'with a meal period of not less than 30 minutes,' "24 any meal 

period of less than 30 actual minutes is a per se violation of law. (Italics added.) As a 

result of each such violation in the present case, Donohue's argument continues, AMN 

owes each affected recruiter compensation for both the time worked during the 30-minute 

break period and the related penalty. We reject Donohue's suggestion that the court 

blindly apply section 512, subdivision (a), and title 8, section 11040, subdivision 11(A), 

without consideration of rounding—a wage and hour procedure that has been accepted in 

California since at least 2012 (See's Candy I, supra, 210 Cal.App.4th at p. 907) and cited 

approvingly by our Supreme Court as recently as earlier this year (Troester, supra, 5 

Cal.5th at pp. 846-847).

Initially, Donohue's reliance on Safeway, supra, 238 Cal.App.4th 1138, and Lubin, 

supra, 5 Cal.App.5th 926, is misplaced. In each of those cases, the appellate court was 

reviewing a ruling on class certification, not on the merits of the plaintiff class's claims. 

(Safeway, supra, 238 Cal.App.4th at p. 1144; Lubin, supra, 5 Cal.App.5th at p. 931.) 

Likewise, ABM Industries Overtime Cases (2017) 19 Cal.App.5th 277 (ABM), quoted by 

Donohue in her reply brief, was an appeal following class certification procedures. (Id. at 

pp. 283-284.) This distinction is significant. As Brinker explains: " 'The certification 

question is "essentially a procedural one that does not ask whether an action is legally or 

factually meritorious." ' . . . ' "In determining the propriety of a class action, the question 

is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the 

 

24 Actually, Donohue cited subdivision 10 of title 8, section 11040. We assume that 

she meant subdivision 11.
28

merits, but rather whether the requirements of [class certification] are met." ' . . .

[R]esolution of disputes over the merits of a case generally must be postponed until after 

class certification has been decided . . . , with the court assuming for purposes of the 

certification motion that any claims have merit." (Brinker, supra, 53 Cal.4th at p. 1023, 

citations omitted.) During the class certification process, the court is concerned with 

issues of commonality and whether the class is ascertainable; and in that context, an 

employer's time records may establish a rebuttable presumption that shortened or delay 

meal periods reflect a section 226.7 violation. (See Safeway, at pp. 1159-1160; Lubin, at 

p. 951.) 

The standard is different on summary judgment. We look to the evidence the

employer submits in support of its initial burden; and where an employer meets this 

initial burden, the employer has rebutted any applicable presumption, and the burden 

shifts to the employee to establish a triable issue of material fact.25 (See See's Candy II, 

 

25 Donohue correctly notes that the rebuttable presumption analysis applied in 

Safeway, Lubin, and ABM was based on Justice Werdegar's concurrence in Brinker, 

supra, 53 Cal.4th at page 1053 ("If an employer's records show no meal period for a 

given shift over five hours, a rebuttable presumption arises that the employee was not 

relieved of duty and no meal period was provided."). (Safeway, supra, 238 Cal.App.4th 

at pp. 1159-1160; Lubin, supra, 5 Cal.App.5th at p. 951.) However, we reject Donohue's 

suggestion to apply this standard here. First, as we explained in the text, ante, 

presumptions in summary judgment proceedings are different than presumptions that 

might arise in class certification proceedings. Moreover, although Justice Liu joined 

Justice Werdegar's rebuttable presumption proposal, the majority of justices did not 

(Brinker, at p. 1055 [conc. opn. of Werdegar, J.]); and "concurring opinions are not 

binding precedent" (In re Marriage of Dade (1991) 230 Cal.App.3d 621, 629).

Contrary to Donohue's suggestion, we do not read ABM as stating that Justice 

Werdegar's rebuttable presumption applies to a plaintiff's substantive proof of damages. 

As ABM explained, the burden of proof shifts to the employer in the wage and hour 

context only where " 'an employer's compensation records are so incomplete or inaccurate 
29

supra, 7 Cal.App.5th at p. 254; see generally Aguilar, supra, 25 Cal.4th at pp. 850-851.) 

Indeed, in the present case, when the trial court certified the plaintiff class in 2015, the 

court explained that it was considering merely issues, including presumptions, related to 

the "ascertainability and a well-defined community of interest" of the proposed class; 

only later, if called on to decide the merits of the claims, would the court consider 

"whether the uniform policies in place were, in fact, unlawful." 

Further, Donohue's position that AMN's rounding policy may never be applied to 

meal period time punches is insupportable on the present record. 

Whenever a recruiter's rounded punch times resulted in a noncompliant meal 

period time (i.e., either a meal period of less than 30 minutes or no opportunity for a meal 

period before the beginning of the sixth hour of work), a drop-down menu appeared on 

the recruiter's computer screen beneath the punch times for the date in question.26 

Before the recruiter could electronically submit the time, the recruiter was required to 

select one of the following options: (1) the recruiter was provided the opportunity to take 

a compliant meal period (i.e., a 30-minute break before the end of the fifth hour of work), 

"but chose not to"; (2) the recruiter was provided the opportunity to take a compliant 

meal period, "but chose to take a shorter/later break"; or (3) the recruiter was not 

 

that an employee cannot prove his or her damages' " or " ' "the employer has failed to 

keep records required by statute." ' " (ABM, supra, 19 Cal.App.5th at p. 311.) Those 

facts are not present in this case.

26 Actually, AMN's policy (of requiring the recruiter to select from a drop-down 

menu any time the rounded time indicated a noncompliant meal period) began a few 

weeks after Donohue began working at AMN. 
30

provided an opportunity to take a compliant meal period. If a recruiter checked the third 

option, AMN automatically paid the recruiter the required section 226.7, subdivision (c) 

penalty. Based on this procedure, Donohue suggests that, because the drop-down menu 

only appeared after application of AMN's rounding policy, the policy masked or covered 

up meal period violations. 

However, there is no basis on which to deny application of AMN's Californiacompliant rounding policy to a recruiter's meal period. 

First, contrary to the premise to Donohue's argument—namely, that any

noncompliant meal period entitles an employee to a penalty (and perhaps additional 

wages)—by providing the employee the above-described three choices in the drop-down 

menu, AMN's policy at issue complied with Brinker, supra, 53 Cal.4th at page 1017 

(Although "an employer's obligation is to relieve its employee of all duty" during a meal 

period, "the employer need not ensure that no work is done"; rather, "the employee [is] 

thereafter at liberty to use the meal period for whatever purpose he or she desires.").

More to the point, in the present appeal, we are tasked with determining whether 

AMN's rounding policy "is neutral, both facially and as applied." (See's Candy I, supra, 

210 Cal.App.4th at p. 903; accord, AHMC Healthcare, supra, 24 Cal.App.5th at 

pp. 1023-1024; See's Candy II, supra, 7 Cal.App.5th at p. 249; Corbin, supra, 821 F.3d at 

p. 1076; see also Troester, supra, 5 Cal.5th at pp. 846-847) This standard contains no 
31

limitation to suggest it does not apply (or should not be applied) to meal periods.27 

Neither Donohue's briefs nor our independent research has disclosed any such limitation, 

and the policy that we considered, applied, and resulted in our decision in See's Candy I, 

supra, 210 Cal.App.4th at page 903—namely, "recogni[tion] that time-rounding is a 

practical method for calculating worktime and can be a neutral calculation tool for 

providing full payment to employees"—applies to the timekeeping of meal periods as 

well as to timekeeping of the beginning of an employee's shift as in See's Candy I.

Donohue contends that a rounding policy should never be applied to meal periods 

because to do so "would quickly eviscerate employee[s'] statutory right to full 30 minute 

meal periods," especially in the context of rounding to the nearest quarter hour.28 

However, Donohue's hypothetical is insufficient to rebut—i.e., to raise a triable issue of 

fact regarding—the evidence AMN submitted in support of its motion. This evidence 

indicates that, over time, AMN did not fail to properly compensate the recruiters, as a 

class, for all the time they worked based on the rounding policy in effect.29 As such, 

 

27 Donohue argues that "rounding always negatively impacted employees' meal 

periods." We disagree. The neutrality of AMN's rounding policy is demonstrated by the 

following illustration: If the recruiter punched out at 12:55 p.m. and punched back in at 

1:24 p.m., the recruiter would have had a 39 minute meal period—which complies with 

both section 512, subdivision (a) and title 8, section 1104, subdivision 11(A)—and also

would have been paid for nine minutes of this time, since rounding would show a punch 

out at 1:00 p.m. and a punch back in at 1:30 p.m.

28 This case does not involve rounding to the nearest quarter of an hour.

29 In her opening brief on appeal, Donohue relies on evidence from her expert 

regarding the effect of the application of AMN's rounding policy to meal periods. 

According to Donohue, this evidence "caused class members to not be paid for a total of 
32

Donohue did not establish that Plaintiffs were entitled either to additional wages or 

penalties.

Donohue next complains that AMN's rounding policy is not "neutral" because the 

rounded time never results in the issuance of a meal period penalty when the actual time 

does not reflect a violation (i.e., when the recruiter receives a 30-minute meal period 

before the sixth hour of work). Donohue misconstrues the concept of neutrality in this 

context. The same argument could be made about shift hours—i.e., rounded time will 

never result in the issuance of a penalty when the actual time does not reflect a 

violation—but the neutrality of a rounding policy does not depend on the frequency of 

penalties. Under the See's Candy I test, the court is to look at how often the application 

of the rounding policy results in rounding up and rounding down, not the number of times 

penalties are assessed or avoided as a result of rounding up and down. (See's Candy I, 

supra, 210 Cal.App.4th at p. 902 [a rounding policy that " 'encompasses only rounding 

down' " is unacceptable].)

 

2,631.583 hours recorded on their time records as a result of 'short' and 'delayed' meal 

periods." First, this evidence does not support Donohue's theory that any recruiter's right 

to a statutory meal period was "eviscerate[d]" as a result of AMN's rounding policy. In 

addition, as we explained at part III.B., ante, this evidence does not establish the 

existence of a triable issue of fact as to the validity of the rounding policy, because 

Donohue's expert did not consider, let alone offset these amounts by, evidence that 

recruiters gained compensable time by the rounding policy. In fact, AMN's expert 

testified that, for meal periods, the rounding of punch times to the nearest 10-minute 

increment "produced a net surplus of 85 work hours in paid time for the Nurse Recruiter 

class as a whole"; i.e., as a group the recruiters were "paid for more work time under the 

time-rounding policy than if they had been paid to the minute of their punch-in and 

punch-out times for meal periods." 
33

As a final argument, Donohue relies on her deposition testimony30 in suggesting 

that " 'lunches were really short' " and that she was "denied 'ample' meal periods" because 

of " 'downward pressures[]' from AMN . . . to constantly remain on the phones." She 

further testified that she " 'was routinely discouraged from taking meal and rest breaks . . .

and was in fact called back to [her] desk—over the intercom—on several occasions when 

attempting to take meal and rest breaks.' " However, this testimony does not respond to 

the undisputed evidence that AMN had in place an effective complaint procedure for an 

employee to inform the employer of any potential violation, but Donohue failed to inform 

AMN of any such violation. (See fn. 5, ante.) Moreover, these generic comments and 

Donohue's related testimony do not raise a triable issue of fact given that the evidence of 

her specific time entries—i.e., rounded punch times—do not establish (or imply) 

noncompliant meal periods for which Donohue did not receive an appropriate penalty 

payment. Finally, we do not consider Donohue's declaration testimony in opposition to 

AMN's motion to be substantial evidence of the existence of a triable issue of fact, since 

it is inconsistent with the following certified statement that she submitted with each 

timesheet: "I was provided the opportunity to take all meal breaks to which I was

entitled, or, if not, I have reported on this timesheet that I was not provided the 

opportunity to take all such meal breaks[.]" (Italics added.) (See D'Amico v. Board of 

Medical Examiners (1974) 11 Cal.3d 1, 21 [declaration from party opposing summary 

judgment disregarded where testimony inconsistent with prior sworn statement 

 

30 As we explain at part III.H., post, even though the trial court excluded this 

testimony, we have considered it in our de novo review on appeal.
34

(discovery responses)]; Turley v. Familian Corp. (2017) 18 Cal.App.5th 969, 981 

[same].) 

For these reasons, the trial court did not err in granting AMN's motion for 

summary adjudication of AMN Issue No. 2 related to alleged meal period violations. 

Accordingly, we affirm the trial court's ruling as to AMN Issue No. 2.

2. The Trial Court Did Not Err in Denying Donohue's Motion for Summary 

Adjudication of Donohue Issue No. 1

The trial court denied Donohue's motion for summary adjudication of Donohue

Issue No. 1, which was directed to Donohue's meal period claim as follows: "[AMN] 

possessed a standard time system in place for all members of the certified class which 

improperly alters the recorded meal periods. This policy violates California law in 

multiple ways. . . ." 

On appeal, after discussing AMN's motion for summary adjudication of the meal 

period claims, Donohue argues that "[b]ased on the same factual record . . . it was also 

error for the trial court to deny [her] motion for adjudication of the meal period issue." 

(Italics added.) More specifically, Donohue argues that AMN did not rebut her evidence 

of meal period violations. We disagree.

We, too, base our decision on the same factual record set forth above. As we just 

explained at parts III.B. and III.C.1., ante, AMN's showing established both that AMN's 

rounding policy complied with California law and that AMN's rounding policy applied to 

recruiters' meal period time punches. Accordingly, even if we assume that Donohue met 

her initial burden of showing that Plaintiffs experienced shortened or delayed meal 
35

periods (which we do not decide), AMN met its responsive burden by establishing that, 

upon applying AMN's rounding policy, AMN has a complete defense to Donohue's claim 

of meal period violations contained in the first cause of action in the complaint. Contrary 

to Donohue's proposed issue to be summarily adjudicated, the evidence establishes that 

AMN's timekeeping system neither "improperly alter[ed] the recorded meal periods" nor 

violated California law. 

For these reasons, the trial court did not err in denying Donohue's motion for 

summary adjudication of Donohue Issue No. 1 related to alleged meal period violations. 

Accordingly, we affirm the trial court's ruling as to Donohue Issue No. 1.

D. The Trial Court Did Not Err in Summarily Adjudicating Donohue's 

Wage Statement Claim in Favor of AMN

Section 226, subdivision (a) requires that employers like AMN provide 

"an accurate itemized statement in writing showing . . . (2) total hours worked by the 

employee, . . . and (9) all applicable hourly rates in effect during the pay period and the 

corresponding number of hours worked at each hourly rate by the employee[.]" Where 

an "employee suffer[s] injury as a result of a knowing and intentional failure by an 

employer to comply with subdivision (a)[,]" section 226, subdivision (e)(1) provides for 

an award of damages to the employee. As applicable to the present case, a recruiteremployee will be deemed to suffer injury "if the employer fails to provide accurate and 

complete information as required by any one or more of items (1) to (9), inclusive, of 

subdivision (a) and the employee cannot promptly and easily determine from the wage 

statement alone . . . [¶] . . . [t]he amount of the gross wages or net wages paid to the 
36

employee during the pay period or any of the other information required to be provided 

on the itemized wage statement pursuant to items (2) . . . and (9) of subdivision (a)." 

(§ 226, subd. (e)(2)(B)(i), italics added.)

In the complaint, Donohue asserted a cause of action under section 226, alleging 

that AMN provided wage statements that failed to state all hours Plaintiffs worked (in 

violation of subd. (a)(2)) and failed to identify all applicable regular and overtime rates of 

pay (in violation of subd. (a)(9)). In particular, Donohue alleged that these three failures 

in AMN's wage statements occurred "at the designation for 'Flsa Ot' "—where AMN did 

not provide amounts for either the hourly rate or the number of hours. 

On appeal, Donohue argues first that, with regard to the line item for "Flsa Ot" 

payments, the AMN wage statements do not provide accurate hourly rates, total hours 

worked, or inclusive dates of the pay period.31 However, Donohue forfeited appellate 

consideration of the arguments related to these wage statement issues, because she failed 

to raise them in her opposition to AMN's motion in the trial court. (Cable Connection, 

Inc. v. DIRECTV, Inc. (2008) 44 Cal.4th 1334, 1350, fn. 12 [" 'A party is not permitted to 

 

31 According to testimony from AMN's supervisor of corporate payroll of AMN's 

parent company: Recruiters like Donohue were eligible to receive "different types of 

non-discretionary commissions, performance bonuses, and other incentive pay" in 

addition to their hourly compensation; these bonuses, which may be earned monthly or 

quarterly, are often "due and calculable only after the pay period during which the work 

was performed"; in the event additional overtime must be paid on such amounts, it is not 

tied to the recruiter's hourly wage, but rather is calculated by a complex formula which is 

"the mathematical equivalent of calculating the bonus into the [recruiter's] regular rate of 

pay"; and "[t]hese bonus-related overtime adjustments are denoted as 'Flsa Ot' on a

[recruiter's] wage statement" and may denote a payment that comprises multiple 

adjustments for multiple bonuses being paid during the same pay period. (Italics added.)
37

change his position and adopt a new and different theory on appeal. To permit him to do 

so would not only be unfair to the trial court, but manifestly unjust to the opposing 

litigant.' "].) An appellate court "generally will not consider an argument 'raised in an 

appeal from a grant of summary judgment . . . if it was not raised below . . . .' " (Noe v. 

Superior Court (2015) 237 Cal.App.4th 316, 335; accord, North Coast Business Park v. 

Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 28-29 [permitting a change of theory 

on appeal from the grant of a defense summary judgment would be "manifestly unjust to 

the opposing parties, unfair to the trial court, and contrary to judicial economy"].)

Donohue next contends that triable issues of fact exist as to whether recruiters 

could " 'promptly and easily determine' " their actual hours worked from the wage 

statements alone, as required by subdivisions (a)(2) and (e)(2)(B) of section 226. (Italics 

omitted.) In this context, " 'promptly and easily determine' means a reasonable person 

would be able to readily ascertain the information without reference to other documents 

or information.' " (§ 226, subd. (e)(2)(C).) Based on this standard, Donohue argues that 

AMN " 'alters' its employees' work times prior to payment, but does not explain to its 

employee that it is doing so." In support of this statement, Donohue cites AMN's 

response to Donohue's separate statement and a copy of Donohue's wage statement from 

a pay period in 2013. However, because a separate statement is "mere assertion" and 

"not itself evidence of anything" (Stockinger v. Feather River Community College (2003) 

111 Cal.App.4th 1014, 1024 (Stockinger), disapproved on another ground in Regents of 

University of California v. Superior Court (2018) 4 Cal.5th 607, 634, fn. 7), the separate 
38

statement cannot raise a triable issue of material fact. Likewise, a wage statement 

without more does not raise a triable issue of material fact.

Even if we were to consider the evidence cited in the separate statement on which 

Donohue relies, the result is no different. Donohue's separate statement citation 

references the following material facts which AMN does not dispute: "In its Wage 

Statements, AMN sometimes represents 20 minutes of work-time as '.34' "; "In its Wage 

Statements, AMN sometimes represents 20 minutes of work-time as ".33' "; "In its Wage 

Statements, AMN never provides its nonexempt employees with any sort of written 

explanation which states that both '.33' and '.34' can mean 20 minutes of work-time"; "20 

minutes is exactly one-third of 60 minutes"; and "33 is not exactly one-third of 100."32 

(Bolding and underscoring omitted.) Even if we assume that, by these statements, AMN

failed to provide accurate and complete information as required by section 226, 

subdivision (a), Donohue forfeited appellate consideration of the issue, because she did 

not present argument, evidence, or authority as to how or why a recruiter is unable to 

"promptly and easily determine from the wage statement alone" the actual time worked—

which is the required showing before an employee can be "deemed to suffer injury" 

according to subdivision (e)(1)(B) of section 226.33 (Cal. Rules of Court, 

 

32 Donohue does not tell us which of these statements—or how any of these 

statements—raises a triable issue of material fact. 

33 In the trial court, Donohue submitted two declarations, one in opposition to 

AMN's motion and one in support of her motion. She did not mention any confusion or 

inability to determine the time worked based on the information contained on her wage 
39

rule 8.204(a)(1)(B) [each point in a brief must be supported "by argument and, if 

possible, by citation to authority"]; see Pizarro v. Reynoso (2017) 10 Cal.App.5th 172, 

181 [failure to present coherent argument forfeits appellate review].)

In her reply brief on appeal, Donohue suggests that, because AMN converted the 

hours and minutes to hours and decimal hours, she or other recruiters generally were 

unable to promptly and easily determine the actual time worked.34 We reject such a 

suggestion. First, Donohue forfeited appellate consideration of the argument, because 

she raised it for the first time in her reply brief on appeal. (Varjabedian v. City of 

Madera (1977) 20 Cal.3d 285, 295, fn. 11 ["Obvious reasons of fairness militate against 

consideration of an issue raised initially in the reply brief of an appellant."]; Padron v. 

Watchtower Bible and Tract Society of New York, Inc. (2017) 16 Cal.App.5th 1246, 1267 

["Any new substantive arguments raised by [an appellant] in its reply brief are deemed 

forfeited."].) In any event, even if we were to consider Donohue's tardy presentation, 

Donohue did not include evidence or authority for the suggestion that, by the use of 

decimal hours rather than minutes, AMN did not provide a wage statement from which 

 

statement; nor did she present any evidence of any other recruiter who was confused or 

unable to determine the time worked. 

34 For example, actual time of 1 hour and 30 minutes is converted to 1.5 hours, and 

actual time of 1 hour and 40 minutes is converted to 1.67 hours. 
40

the amount of time worked can be, in the language of section 226, subdivision (e)(1)(B), 

"promptly and easily determined."35

Accordingly, we affirm the trial court's ruling as to AMN Issue No. 4.

E. The Trial Court Did Not Err in Summarily Adjudicating Donohue's

Overtime Claim in Favor of AMN 

Section 510, subdivision (a) requires employers like AMN to pay employees like 

Plaintiffs "one and one-half times the regular rate of pay" for "[a]ny work in excess of 

eight hours in one workday and any work in excess of 40 hours in any one workweek and 

the first eight hours worked on the seventh day of work in any one workweek." 

 

35 In her reply brief on appeal, Donohue refers us to two pages of a separate 

statement (with five separately numbered paragraphs), a copy of one of Donohue's wage 

statements, and one page of the deposition transcript of a witness, C.B. The separate 

statement is neither evidence nor argument. (Stockinger, supra, 111 Cal.App.4th at 

p. 1024.) Although the copy of the wage statement contains a decimal hour, Donohue

failed to present evidence or argument that she or any of Plaintiffs could not promptly 

and easily determine the amount of time worked.

At her deposition, C.B. testified that, in order to determine how many minutes .83 

of an hour is, she would have to refer to a chart, although she guessed that it was 50 

minutes. However, Donohue has not explained or provided evidence as to who C.B. is, 

and because Donohue did not cite this evidence until her reply brief on appeal, we decline 

to consider it. In any event, Donohue does not explain, or attempt to explain, how or why 

she or any recruiter was not able to promptly or easily determine the amount of time 

worked when it was expressed in decimal hours (.83 of an hour) rather than minutes (50 

minutes). Given that only basic skills in arithmetic are required to convert minutes to 

decimal hours and decimal hours to minutes, we will not infer a triable issue of material 

fact without evidence that any recruiter was delayed or had difficulty in determining the 

amount of time worked.
41

As part of the second cause of action in the complaint, Donohue alleged that AMN

failed to pay required overtime wages in violation of section 510, subdivision (a).36 

More specifically, Donohue alleged the following two types of overtime payment 

violations: (1) " 'time shaving,' " which included both the rounding of time when 

recruiters punched in and out, and the conversion of time that was recorded in minutes to 

decimal hours for purposes of multiplying the amount of time by the overtime hourly 

rate; and (2) failure to include " 'Referral Bonus[es],' " " 'monthly commissions,' " and 

" 'RAMP' pay"37 in calculating commissions and nondiscretionary bonuses when 

determining a recruiter's regular rate of pay, which results in an improper rate of 

overtime pay. 

However, on appeal, Donohue does not mention these two alleged overtime 

violations. Instead, she argues only that the trial court erred in adjudicating her overtime 

claim based on what she characterizes as AMN's "makeup time" defense.38 Thus, 

 

36 The second cause of action also contains a claim for failure to pay minimum wage 

in violation of section 1197, but on appeal Donohue does not mention, let alone raise an 

argument, related to the minimum wage claim or section 1197. 

37 Donohue does not tell us, either in the complaint or her appellate briefing, what 

she considers referral bonuses, monthly commissions, or RAMP pay.

38 Without deciding whether the makeup time argument is part of Donohue's claim or 

AMN's defense (which the parties dispute), it is based on section 513, which provides in 

part: "If an employer approves a written request of an employee to make up work time 

that is or would be lost as a result of a personal obligation of the employee, the hours of 

that makeup work time, if performed in the same workweek in which the work time was 

lost, may not be counted towards computing the total number of hours worked in a day 

for purposes of the overtime requirements specified in Section 510 . . . . An employee 

shall provide a signed written request for each occasion that the employee makes a 
42

Donohue did not meet her burden of establishing a triable issue of material fact in 

response to AMN's initial showing. (Aguilar, supra, 25 Cal.4th at p. 850-851.)

We are aware that, in granting AMN's motion for summary adjudication directed 

to the overtime claim, the trial court included as an alternative ruling that Donohue was 

required to, but did not, plead that AMN's makeup time policy resulted in overtime 

violations. However, the court's principal ruling was on another ground—namely that, 

because AMN's application of its rounding policy complied with California law, "AMN's 

methods of calculating and paying overtime compensation are lawful"; yet Donohue does 

not argue on appeal that the court erred in so ruling on summary adjudication. Stated 

differently, even if we assume that the trial court erred in denying Donohue's motion as to 

the makeup time defense, any such error would be harmless (see discussion of prejudice 

at pt. III.H., post): Because AMN was entitled to summary adjudication on its motion 

directed to the overtime claim on grounds unrelated to the issue of makeup time, the 

result on the overtime claim is unaffected by the court's ruling, even if erroneous, that 

Donohue did not plead that AMN's makeup time policy resulted in overtime violations.

Accordingly, we affirm the trial court's ruling as to AMN Issue No. 1—without 

expressing an opinion as to the effect of AMN's makeup policy on Donohue's overtime 

claim.

 

request to make up work time pursuant to this section. . . ." (Italics added.)

Donohue assures us on appeal that AMN's allegedly improper designation of 

makeup time is not part of her claim for overtime. She explains that her overtime claim 

is based solely on the "allegation . . . that overtime was not paid in some instances where 

over 8 hours in a day were worked by employees." AMN therefore properly directed its 

motion to the allegations in the complaint, where Donohue alleged improper overtime 

payments based on time-shaving (rounding of time and use of decimal hours) and failure 

to include certain commissions or bonuses in the calculation of regular time, and 

therefore, overtime—none of which involved the application of makeup time.
43

F. The Trial Court Did Not Err in Summarily Adjudicating Donohue's Rest Period 

Claim in Favor of AMN

A rest period mandated by state law, which includes Industrial Welfare 

Commission wage orders, "shall be counted as hours worked, for which there shall be no 

deduction from wages." (§ 226.7, subd. (d).) In general, California employers are 

required to provide rest periods of a specified minimum duration—e.g., 10 minutes of 

paid rest for every four hours worked; and for shifts of less than four hours, a 10-minute 

rest period after three and a half hours. (Tit. 8, §§ 11010-11150, subd. (12)(A) & 

§ 11160, subd. (11)(A).) An employer is precluded from requiring an employee to work 

during a rest period, and an employer that fails to provide such a required rest period 

"shall pay" each affected employee one hour's pay for each workday the employee was 

not provided the appropriate rest period. (§ 226.7, subds. (b), (c); tit. 8, §§ 11010-11150, 

subd. (12)(B) & § 11160, subd. (11)(D).) In the present action, Donohue alleges that, by 

failing to have a compliant rest period policy, AMN violated section 226.7, 

subdivision (b), and title 8, section 11040, subdivision (12), which entitled Plaintiffs to 

recover damages. 

In its motion, AMN sought to summarily adjudicate the rest period claim "because 

there is no evidence of a uniform policy or practice to deny rest periods." Donohue

argues that the trial court improperly granted the motion by relying "on a generalization 

that Ms. Donohue took 'some' rest breaks, . . . improperly ignor[ing] all of her testimony 

in which she said she was often denied other rest breaks." Donohue characterized the 

pertinent allegations in the complaint to be "that AMN did not provide all legally-
44

compliant rest periods due," expressly asserting that "[t]he testimony in the record 

confirmed [her] allegations to be true."39 By this argument, Donohue necessarily 

acknowledges that AMN met its initial burden, suggesting only that she met her 

responsive burden of establishing the existence of a triable issue of material fact. 

In response to AMN's showing that its written policy complies with California law 

(which Donohue does not challenge on appeal), Donohue refers us to one page of her 

declaration and eight pages of her deposition transcript and argues that "(1) she and 

others were frequently denied rest breaks altogether when work got too busy, and (2) that 

[AMN] would often interrupt her (call her back to work) before her rest period was 

finished." The problem with Donohue's argument is that the evidence on which she relies 

does not establish either a general noncompliant company policy or the denial of any 

specific required rest period(s). 

In her declaration, Donohue testified that she "was routinely discouraged from 

taking meal and rest breaks" and even called back to her desk "on several occasions" 

when attempting to take a rest break.40 However, neither of these events establishes 

 

39 Citing Evidence Code section 356, Donohue argues on appeal that, because the 

court considered a portion of Donohue's deposition testimony, "[t]he rule of completeness 

requires all of Ms. Donohue's testimony on the subject of rest periods be considered." 

We disagree. Evidence Code section 356 provides in part: "Where part of an act, 

declaration, conversation, or writing is given in evidence by one party, the whole on the 

same subject may be inquired into by an adverse party[.]" (Italics added.) The trial court 

was not required to consider deposition testimony sua sponte, and there is no indication 

that the trial court did not consider any evidence that Donohue properly cited.

40 As we explain at part III.H., post, even though the trial court excluded this 

testimony, we have considered it in our de novo review on appeal.
45

either a noncompliant company policy or the denial of a compliant rest period (or, in the 

event of a noncompliant rest period, nonpayment of the required premium). 

At her deposition Donohue expressly testified that AMN allowed recruiters to take 

rest breaks, commenting only that taking such breaks "was highly frowned upon" and "it 

was not a commonality to take rest periods at all." Significantly, Donohue could not 

remember what she was told or what was communicated to her to cause her to believe 

that taking rest breaks was uncommon or disapproved. Although Donohue later 

identified a "recruitment manager" in "upper division" who told her "just 

conversationally" that she should make telephone calls instead of taking breaks, Donohue 

confirmed that the manager never stated that taking a rest period was " 'frowned upon' " 

or otherwise precluded. All of that said, Donohue testified unequivocally that no one—

and repeated later that she could not remember any manager or supervisor who—ever 

told her that she could not take a rest break. 

For these reasons, the evidence on which Donohue relies is insufficient to 

establish the existence of a triable issue of material fact in response to AMN's initial

showing that, in the terms of the issue to be summarily adjudicated, "there is no evidence 

of a uniform policy or practice to deny rest periods." Accordingly, we affirm the trial 

court's ruling as to AMN Issue No. 3.

G. The Trial Court Did Not Err in Summarily Adjudicating Donohue's PAGA Claim

in Favor of AMN 

Section 2699, subdivisions (a) and (g)(1), which are part of PAGA (§ 2698 

et seq.), allow "an aggrieved employee" to recover civil penalties for certain violations of 
46

the Labor Code.41 (Arias v. Superior Court (2009) 46 Cal.4th 969, 980.) Under PAGA, 

an " 'aggrieved employee' " is defined as an employee "against whom one or more of the 

alleged [Labor Code] violations was committed." (§ 2699, subd. (c).)

" 'Before the PAGA was enacted, an employee could recover damages, 

reinstatement, and other appropriate relief but could not collect civil penalties. The 

Labor and Workforce Development Agency . . . collected them. The PAGA changed 

that.' " (Villacres v. ABM Industries Inc. (2010) 189 Cal.App.4th 562, 578; accord, 

Thurman v. Bayshore Transit Management, Inc. (2012) 203 Cal.App.4th 1112, 1126 

["Section 2699, subdivision (a) . . . 'permits aggrieved employees to recover civil 

penalties that previously could be collected only by [the agency' "].) "In PAGA, the 

Legislature created an enforcement mechanism for aggrieved employees to file 

representative actions to recover penalties in cases in which there is no private cause of 

action as an alternative to enforcement by the Labor Commissioner." (Rope v. AutoChlor System of Washington, Inc. (2013) 220 Cal.App.4th 635, 650, superseded in part 

on another issue by statute.) Under PAGA, "the aggrieved employee acts as the proxy or 

 

41 "Notwithstanding any other provision of law, any provision of th[e Labor C]ode 

that provides for a civil penalty to be assessed and collected by the Labor and Workforce 

Development Agency . . . for a violation of this code, may, as an alternative, be recovered 

through a civil action brought by an aggrieved employee on behalf of himself or herself 

and other current or former employees pursuant to the procedures specified in 

Section 2699.3." (§ 2699, subd. (a).)

"[A]n aggrieved employee may recover the civil penalty described in 

subdivision (f) [, which deals with civil penalties,] in a civil action pursuant to the 

procedures specified in Section 2699.3 filed on behalf of himself or herself and other 

current or former employees against whom one or more of the alleged violations was 

committed." (§ 2699, subd. (g)(1).)
47

agent of state labor law enforcement agencies, representing the same legal right and 

interest as those agencies, in a proceeding that is designed to protect the public, not to 

benefit private parties." (Amalgamated Transit Union, Local 1756, AFL-CIO v. Superior 

Court (2009) 46 Cal.4th 993, 1003.) 

In the seventh cause of action of the complaint, Donohue pleaded that she 

complied with PAGA's administrative prefiling requirements (see § 2699.3, subd. (a)) 

and alleged that, under PAGA, she was an aggrieved employee asserting a claim against 

AMN based on violations of specified Labor Code sections and Industrial Welfare 

Commission wage orders dealing with: straight time; overtime; meal periods; rest 

periods; wage statements; and amount of compensation owed upon termination of 

employment (based on proof of the other alleged violations). The trial court granted 

AMN's motion for summary adjudication of Donohue's PAGA cause of action, 

because—in the language of the issue to be summarily adjudicated—each of the PAGA 

claims "is derivative of [Donohue's] other claims under the California Labor Code, which 

also fail[.]" The trial court did not err.

On appeal, Donohue argues otherwise, contending that, unlike a class action 

plaintiff who must show a common policy or practice that results in Labor Code (or 

related) violations, a PAGA plaintiff need only prove the existence of a violation. In 

support, Donohue relies on a language from Williams v. Superior Court (2017) 3 Cal.5th 

531 (Williams) that, in a PAGA action, "recovery on behalf of the state and aggrieved 

employees may be had for each violation, whether pursuant to a uniform policy or not." 
48

(Williams, at p. 559.) Even if we accept Donohue's authority,42 Donohue did not 

establish that she suffered harm as a result of AMN's violation of the Labor Code. 

Stated differently, Donohue did not establish that she was an aggrieved 

employee—a prerequisite to asserting a PAGA claim (§ 2699, subds. (a), (g)(1))—

because she did not establish that "one or more of the alleged [Labor Code] violations 

was committed" against her (§ 2699, subd. (c)). The parties and the trial court discussed 

this issue in terms of analyzing whether Donohue's PAGA claims were "derivative" of 

her substantive claims for Labor Code violations.

In its separate statement in support of its motion to summarily adjudicate Issue 

No. 7, AMN proffered the following undisputed material fact: "All claims for PAGA 

penalties that [Donohue] has brought in this lawsuit are derivative of her other causes of 

action for violations of the Labor Code." As supporting evidence, AMN relied on copies 

of Donohue's administrative prefiling letters and certain allegations in her complaint in 

which Donohue expressly contended that her PAGA claims were entirely derivative of 

 

42 The procedural posture in Williams makes the case inapplicable to the present 

appeal. Williams was a discovery dispute, where the principal issue was whether the 

PAGA plaintiff had to show that he had been subject to Labor Code violations prior to 

obtaining discovery from the defendant employer regarding contact information for other 

California employees. (Williams, supra, 3 Cal.5th at pp. 538, 559.) The court concluded 

that the identities of the employer's other California employees were discoverable without 

first requiring that the PAGA plaintiff establish that he had been subject to Labor Code 

violations. (Williams, at p. 558 ["the merits of one's case has never been a threshold 

requirement for discovery"].) As applicable to the present appeal—and as we discuss in 

the text, post—in dictum the court explained that, in order to recover on the merits as 

opposed to merely obtaining discovery, a PAGA plaintiff must establish standing, which 

requires a showing the PAGA plaintiff "suffered harm" as a result of the employer's 

violation of the Labor Code. (Williams, at p. 559, citing § 2699.)
49

her substantive claims under the Labor Code. Significantly, in her response to AMN's 

separate statement, Donohue did not dispute that her claims for PAGA penalties were 

derivative of her substantive claims for Labor Code violations.43 Consistently, in her 

memorandum of points and authorities in opposition to AMN's motion in the trial court, 

Donohue again specifically acknowledged that her PAGA claims were derivative of her 

substantive Labor Code claims. Indeed, instead of presenting any independent argument 

related to the PAGA cause of action, Donohue merely asked the court to "Please see the 

above arguments"—thereby confirming that her PAGA claims were, in fact, derivative of 

her other Labor Code claims. 

Donohue suggests that the holding in Lopez v. Friant & Associates, LLC (2017) 15 

Cal.App.5th 773 (Lopez) saves her PAGA claim (§ 2699) for wage statement violations 

(§ 226, subd. (a)).44 More specifically, she argues that, under Lopez, the trial court here 

erred in ruling that, because AMN was entitled to judgment as a matter of law on her 

individual (class) claims under section 226, AMN was also entitled to judgment as a 

 

43 Actually, Donohue did not include any response to AMN's proposed undisputed 

material fact. AMN noted this nonresponse in its reply to Donohue's opposition, 

contending that, because "[Donohue] has provided no response to this fact[,] . . . it 

therefore remains undisputed." Donohue did not argue otherwise at the hearing (or seek 

leave to amend her prior response), and she does not contend otherwise on appeal.

44 Because this is the argument that Donohue attempted to raise in her motion for 

reconsideration, which the trial court struck after entry of judgment, Donohue has not 

been prejudiced by the trial court's failure to rule on the motion.
50

matter of law on her representative (PAGA) claim under section 2699.45 However, all 

Lopez held was that a plaintiff who asserts a representative claim for civil penalties under 

PAGA (§ 2699) based on violations of section 226, subdivision (a), need not prove an 

individual claim for statutory damages under the Labor Code (§ 226, subd. (e)) based on 

the same violations of section 226, subdivision (a). (Lopez, at pp. 784-786.) Although a 

representative PAGA claim for penalties (§ 2699) and an individual claim for damages 

(§ 226, subd. (e)) both require proof of a violation of the requirements for itemized wage 

statements under section 226, subdivision (a), the representative claim requires only 

proof that the employer's wage statement violated section 226, subdivision (a), whereas 

the individual claim requires proof that the plaintiff suffered an " 'injury' resulting from a 

'knowing and intentional' violation of section 226[, subdivision ](a)." (Lopez, at pp. 784, 

784-786.) 

In Lopez, the defendant employer sought summary judgment on the representative

(PAGA) claim for penalties (§ 2699) based on evidence and argument that the plaintiff 

employee could not establish an individual claim for damages (§ 226, subd. (e)) based on 

the same alleged section 226, subdivision (a) wage statement violations. (Lopez, supra, 

 

45 In the individual (class) cause of action for damages under section 226, 

subdivision (e), Donohue alleged that AMN failed to include in employees' wage 

statements "all hours worked" in violation of subdivision (a)(2) and failed to identify "all 

applicable regular and overtime rates of pay" in violation of subdivision (a)(9). 

In the representative (PAGA) cause of action under section 2699 for penalties 

based on section 226 violations, Donohue alleged that AMN failed to include in 

employees' wage statements "the accurate total number of overtime hours worked" in 

violation of subdivision (a)(2), the "accurate net or gross wages, including overtime 

wages, earned" in violation of subdivision (a)(1), and "the name and address of the legal 

entity that is the employer" in violation" of subdivision (a)(8). 
51

15 Cal.App.5th at pp. 776-777.) In reaching its conclusion otherwise, the Lopez court 

stated only that a PAGA representative claim for penalties based on a violation of 

subdivision (a) of section 226 is not derivative of an individual claim for damages based 

on a violation of subdivision (e) of section 226 because the individual claim requires 

proof of a knowing and intentional violation of subdivision (a), whereas the 

representative claim does not. (Lopez, at p. 786.) In contrast, here, because Donohue's 

individual (class) claims failed on grounds other than the lack of proof of a knowing and 

intentional violation of section 226, subdivision (a)—namely, on the basis that Donohue

did not meet her burden of establishing an issue of material fact as to the existence of a 

section 226, subdivision (a) violation (see pt. III.D., ante)—Lopez is not controlling.46

In conclusion, based on the record and our rulings on her individual (class) Labor 

Code claims, ante, Donohue did not meet her burden of establishing trial court error in 

granting summary adjudication in favor of AMN on Donohue's representative (PAGA) 

cause of action. Stated differently, in the language from her opening brief on appeal, 

Donohue did not meet her burden of establishing an issue of material fact as to whether 

 

46 At oral argument, counsel for Donohue presented argument based on Huff v. 

Securitas Security Services USA, Inc. (2018) 23 Cal.App.5th 745 (Huff)—a case that was 

decided many months after the filing of her reply brief. We disapprove of counsel 

presenting this authority without sufficient time for AMN to respond—despite six months 

and three rounds of supplemental briefing after the filing of Huff and before oral 

argument. However, since the case does not help Donohue, we will consider it without 

requesting supplemental briefing from AMN. In Huff, the appellate court held that an 

employee who is affected by at least one Labor Code violation may pursue PAGA 

penalties for unrelated Labor Code violations by the same employer. (Huff, at pp. 753-

754.) Here, as we concluded in the text, ante, Donohue has not established the right to 

recover for any Labor Code violation; thus, even under Huff, she may not pursue PAGA 

penalties for any Labor Code violation(s). 
52

she "individually experienced" any particular Labor Code violation. (See Huff, supra, 23 

Cal.App.5th at p. 753 [PAGA plaintiff must be "affected by at least one Labor Code 

violation"]) In response to AMN's showing—which included Donohue not disputing the 

proffered material fact that her representative (PAGA) claims were derivative of her 

individual (class) Labor Code claims47—Donohue did not establish either that she 

suffered a Labor Code violation or that her PAGA claims were not derivative of her 

individual (class) claims.

Accordingly, we affirm the trial court's ruling as to AMN Issue No. 7.

H. The Trial Court Did Not Abuse its Discretion in Sustaining AMN's Evidentiary 

Objections to Certain of Donohue's Evidence

In ruling on the cross-motions, the trial court sustained AMN's evidentiary 

objections to the declarations of Donohue and Clint S. Engleson, one of Donohue's 

attorneys. Donohue contends on appeal that these rulings are erroneous and, on that 

basis, she is entitled to a reversal of the judgment. We disagree.

Generally, we review for an abuse of discretion of the trial court's ruling on the 

exclusion of evidence in summary judgment proceedings. (Park v. First American Title 

Co. (2011) 201 Cal.App.4th 1418, 1427.) A trial court abuses its discretion only when, in 

 

47 As we explained at footnote 45, ante: In the individual (class) claim for damages 

under section 226, subdivision (e), Donohue alleged violations of subdivisions (a)(2) and 

(a)(9) of section 226; whereas in the representative (PAGA) claim for penalties under 

section 2699, Donohue alleged violations subdivisions (a)(1), (a)(2), and (a)(8) of 

section 226—which includes two alleged violations that were not part of the individual

(class) claim. Donohue does not suggest that the PAGA claim was not derivative of the 

class claims because the two sets of claims alleged different violations of section 226, 

subdivision (a). 
53

its exercise, the ruling is arbitrary or the trial court "exceeds the bounds of reason, all of 

the circumstances before it being considered." (Denham, supra, 2 Cal.3d at p. 566.) That 

said, in Reid v. Google, Inc. (2010) 50 Cal.4th 512, our Supreme Court expressly left 

open the question of whether such evidentiary rulings are reviewed under a de novo or an

abuse of discretion standard. (Id. at p. 535.) The parties disagree as to which standard 

we are to apply. 

Under either standard, however, an appellant who seeks a reversal based on the 

erroneous exclusion of evidence in summary judgment proceedings must establish how 

the error resulted in a "miscarriage of justice," often referred to as prejudice. (Cal. 

Const., art. VI, § 13;48 Code Civ. Proc., § 475;49 Pool v. City of Oakland (1986) 42 

Cal.3d 1051, 1069.) For purposes of this analysis, a "miscarriage of justice" may be 

found on appeal " ' "only when the court, 'after an examination of the entire cause, 

including the evidence,' is of the 'opinion' that it is reasonably probable that a result more 

favorable to the appealing party would have been reached in the absence of the error." ' "

 

48 "No judgment shall be set aside . . . in any cause, on the ground of . . . the 

improper . . . rejection of evidence . . . , unless, after an examination of the entire cause, 

including the evidence, the court shall be of the opinion that the error complained of has

resulted in a miscarriage of justice." (Cal. Const., art. VI, § 13, italics added.)

49 "No judgment, decision, or decree shall be reversed or affected by reason of any 

error, ruling, instruction, or defect, unless it shall appear from the record that such error, 

ruling, instruction, or defect was prejudicial, and also that by reason of such error, ruling, 

instruction, or defect, the said party complaining or appealing sustained and suffered 

substantial injury, and that a different result would have been probable if such error, 

ruling, instruction, or defect had not occurred or existed. There shall be no presumption 

that error is prejudicial, or that injury was done if error is shown." (Code Civ. Proc., 

§ 475, italics added.)
54

(Pool, at p. 1069; accord, San Diego Gas & Electric Co. v. Schmidt (2014) 228 

Cal.App.4th 1280, 1301-1302.) In this context, "reasonably probable" means "more than 

an abstract possibility." (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 

715.) Prejudice is not presumed (Code Civ. Proc., § 475), and the appellant bears the 

burden of establishing both error and a miscarriage of justice. (Denham, supra, 2 Cal.3d 

at p. 566.)

Without deciding which standard of review applies, we assume that the challenged

evidence should have been admitted.50 As we explain, however, because Donohue did 

not meet her burden of establishing prejudice, any error in excluding the evidence is 

harmless.

1. Donohue's Testimony

In support of her opposition to AMN's motion directed to meal periods and rest 

periods, Donohue testified as follows: 

"I understand AMN is arguing that I somehow 'certified' that I received all 

meal and rest breaks while working for the company by clicking a box to 

that effect when submitting my timecard. This is not the case. To confirm, 

I could not submit my timecard—and thus get paid—without clicking this 

box. Because I had no choice but to click this box, my doing so does not 

'certify' the fact that I received meal and rest breaks. As I have testified 

multiple times, I was routinely discouraged from taking meal and rest 

breaks while I worked for AMN and was in fact called back to my desk—

over the intercom—on several occasions when attempting to take meal and 

rest breaks." 

 

50 Indeed, in our discussions of both the meal period and rest period issues at 

parts III.C.1. & III.F., respectively, ante, we considered applicable portions of Donohue's 

declaration testimony that the trial court excluded.
55

AMN objected to this testimony on numerous grounds. The trial court excluded the 

testimony without stating the basis of its ruling. 

On appeal, Donohue contends that this testimony is "relevant," "based on personal 

knowledge," and "simply expand[s] on and clarif[ies] what she had meant by her prior 

deposition testimony." She then argues that the exclusion of this testimony "was highly 

prejudicial, as it created a multitude of triable issues of fact with regard to the meal and 

rest period claims." However, by acknowledging that this testimony is cumulative and by 

failing to suggest how this testimony supports a specific triable issue of material fact, 

Donohue has not met her burden of establishing prejudice.

Accordingly, Donohue is not entitled to relief based on the trial court's exclusion 

of Donohue's declaration testimony.

2. Engleson's Testimony

In support of her opposition to AMN's motion, Donohue submitted the declaration 

from one of her attorneys, Engleson. In his declaration, Engleson provided substantive 

testimony, as well as foundational/authentication testimony related to 16 exhibits. AMN

objected to the declaration and to certain of the exhibits on various grounds, and the trial 

court sustained AMN's evidentiary objections on the basis that most of the declaration 

was "an improper attorney declaration." The court did not rule on the objections to any 

of the exhibits. 

On appeal, Donohue does not challenge the ruling that Engleson's declaration was

an improper attorney declaration. She challenges only that portion of the court's ruling 

that sustained AMN's objections to the 16 exhibits. However, Donohue does not attempt 
56

to explain (let alone succeed in explaining) how she was prejudiced by the exclusion of 

any particular exhibit. 

Accordingly, Donohue is not entitled to relief based on the trial court's ruling 

sustaining AMN's objection to Engleson's declaration.

I. Donohue Did Not Retain Her Individual Claims

In her final argument, without a record reference, Donohue contends that, because 

"AMN's notice of summary judgment motion only seeks to adjudicate the certified class 

action claims, . . . it was error for the trial court to adjudicate Ms. Donohue's individual

claims for meal break, rest break, unpaid compensation and wage statement violations." 

(Original italics and bolding) We emphasize "without a record reference," because the 

record discloses that AMN gave notice of and moved for "summary judgment or, in the 

alternative, summary adjudication, in its favor and against the certified class and named 

plaintiff Kennedy Donohue in her individual capacity, on Plaintiffs' Second Amended 

Complaint, and as to each cause of action therein." (Italics added.) 

Accordingly, Donohue's argument that AMN's motion did not seek to adjudicate 

her individual claims is frivolous, and we reject it.
57

IV. DISPOSITION

The judgment is affirmed. AMN is entitled to its costs on appeal. (Cal. Rules of 

Court, rule 8.278(a)(2).)

IRION, J.

WE CONCUR:

HALLER, Acting P. J.

O'ROURKE, J.
Filed 12/10/18

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

KENNEDY DONOHUE,

Plaintiff and Appellant,

v.

AMN SERVICES, LLC,

Defendant and Respondent.

 D071865

 (Super. Ct. No. 37-2014-00012605-

CU-OE-CTL)

THE COURT:

The opinion in this case filed November 21, 2018 was not certified for publication. 

It appearing the opinion meets the standards for publication specified in California Rules 

of Court, rule 8.1105(c), the requests pursuant to California Rules of Court, rule 

8.1120(a), for publication are GRANTED.

IT IS HEREBY CERTIFIED that the opinion meets the standards for publication 

specified in California Rules of Court, rule 8.1105(c); and

ORDERED that the words "Not to Be Published in the Official Reports" appearing 

on page one of said opinion be deleted and the opinion herein be published in the Official 

Reports.

HALLER, Acting P. J.

Copies to: All parties