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Thurman v. Bayshore Transit Management, Inc.

Court of Appeal of California, Fourth Appellate District, Division One

February 27, 2012, Filed



 [**136]  AARON, J.—In January 2004, Amalgamated Transit Union, Local 1309, AFL-CIO (the union), filed a representative action on behalf of its member bus drivers who worked in and around National City, California, alleging that the various defendant employers had violated provisions of the Labor Code1 that require employers to provide meal and rest periods for their employees. In February 2005, the union filed an operative verified third amended [*1119]  complaint, which added a number of individual employees as plaintiffs, including appellant Leander H. Thurman. The named defendants included appellants Bayshore Transit Management, Inc. (Bayshore), and its parent corporation McDonald Transit Associates, Inc. (McDonald) (collectively  [***2] defendants), who, until March 3, 2007, contracted with the City of National City to operate National City Transit (NCT), a carrier that ran three fixed bus routes in the city.2 At the time of trial, Thurman was the only remaining plaintiff, and McDonald and Bayshore were the only remaining defendants in the action.

After a bench trial, the trial court filed a statement of decision and entered a judgment imposing civil penalties, including unpaid wages, in the total amount of $358,588.22, against defendants under the Labor Code Private Attorneys General Act of 2004 (PAGA), section 2698 et seq. The court also awarded Thurman restitution in the amount of $28,605 under the unfair competition law (UCL) (Bus. & Prof. Code, § 17200 et seq.),  [***3] and prejudgment interest in the amount of $10,253. Both Thurman and defendants appeal from the judgment.

Thurman contends that the trial court committed reversible error in (1) denying his request to continue the trial to allow him to bring a noticed motion for class certification, after the California Supreme Court issued a decision that precluded the union from maintaining its representative action; (2) denying class certification;3 (3) denying him recovery  [**137]  of civil penalties under both section 558, and wage order No. 9-2001 issued by the Industrial Welfare Commission (IWC), codified in California Code of Regulations, title 8, section 11090 (Wage Order No. 9); (4) reducing defendants' civil penalties under section 2699, subdivision (e); and (5) ruling that defendants' liability for his UCL claims began on January 1, 2002, rather than on October 1, 2000, due to the collective bargaining exemption in the former version of section 514. With respect to this claim, Thurman further contends that even if former section 514 created a collective bargaining exemption, section 226.7  [*1120]  provides an independent basis for recovering unpaid wages for missed meal and rest periods, effective January  [***4] 1, 2001.

Defendants contend that the trial court erred in (1) awarding unpaid wages under section 558 as a civil penalty; (2) awarding Thurman relief under the PAGA, because Thurman failed to exhaust his administrative remedies before he was named as a plaintiff in the third amended complaint; (3) allowing Thurman to recover PAGA penalties on behalf of other bus operators for missed rest periods under section 558, because that statute allows recovery for missed meal periods only, and not for missed rest periods; and (4) allowing Thurman to  [***5] avoid the judicial admission, set forth in his complaint, that defendants had provided meal periods since July 2003, and permitting him to recover for missed meal periods after July 2003. We agree with defendants' last contention. Accordingly, we reverse the portions of the judgment awarding recovery for missed meal periods and remand for a redetermination of that recovery. In all other respects, we affirm the judgment.

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203 Cal. App. 4th 1112 *; 138 Cal. Rptr. 3d 130 **; 2012 Cal. App. LEXIS 223 ***; 2012 WL 604037

LEANDER H. THURMAN, Plaintiff and Appellant, v. BAYSHORE TRANSIT MANAGEMENT, INC., et al., Defendants and Appellants.

Subsequent History: Time for Granting or Denying Review Extended Thurman (Leander H.) v. Bayshore Transit Management, Inc., 2012 Cal. LEXIS 4992 (Cal., May 23, 2012)

Review denied by Thurman v. Bayshore Transit Mgmt., 2012 Cal. LEXIS 5624 (Cal., June 13, 2012)

Prior History:  [***1] APPEALS from a judgment of the Superior Court of San Diego County, No. GIC824139, Kevin A. Enright and Timothy B. Taylor, Judges.

Disposition: Reversed in part, affirmed in part and remanded with directions.


civil penalty, trial court, wage order, rest period, meal period, employees, wages, collective bargaining agreement, underpaid, subdivision, exemption, meal, Transit, violations, missed, judicial admission, third amended complaint, italics, aggrieved employee, defendants', class certification, class action, unpaid wages, overtime, provisions, sections, repeal, continuance, drivers, retroactively

Business & Corporate Compliance, Wage & Hour Laws, Scope & Definitions, Overtime & Work Periods, Labor & Employment Law, Remedies, General Overview, Administrative Proceedings, Enforcement Provisions, Private Suits, Civil Procedure, Appeals, Standards of Review, Abuse of Discretion, Pretrial Matters, Continuances, Special Proceedings, Class Actions, Appellate Review, Certification of Classes, Pleadings, Heightened Pleading Requirements, Governments, Legislation, Interpretation, Statutory Remedies & Rights, Rulemaking Authority, Effect & Operation, Prospective Operation, Retrospective Operation, Amendments, Damages, Backpay, Courts, Judicial Precedent, Justiciability, Exhaustion of Remedies, Administrative Remedies, Amendment of Pleadings, Relation Back, Complaints, Requirements for Complaint, Pleading & Practice, Rule Application & Interpretation, Expiration, Repeal & Suspension, Evidence, Types of Evidence, Judicial Admissions, Effects, Pleadings