Borham v. Lieberman CA1/5

Filed 5/16/14 Borham v. Lieberman CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

MONA BORHAM et al. Plaintiffs and Appellants, A136210 v. IRENE LIEBERMAN, (San Francisco County Super. Ct. No. CPF09510058) Defendant and Respondent.

Appellants Mona Borham and Khom Sok appeal from the trial court’s judgment in their action alleging that, during their employment in a hotel owned by respondent Irene Lieberman, they were not paid the minimum wage and did not receive wage statements as required by law. Because appellants have failed to provide an adequate record on appeal, we affirm. BACKGROUND Because we ultimately conclude appellants’ failure to provide an adequate record is fatal to their claims on appeal, it is unnecessary to provide a detailed factual summary in this case. In 2007 and 2008, appellants Borham and Sok worked for the Monroe Hotel (the “Monroe”) in part-time positions. Pursuant to their employment contracts, appellants received lodging and meals at the Monroe, and agreed that respondent could deduct credits for such lodging and meals from appellants’ wages. The standard work week was 14.5 hours, which respondent calculated would cover the deductions allowed for room and board under state law. Appellant Borham never received a paycheck from

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respondent; appellant Sok only received a paycheck when she worked more than 14.5 hours, in which event she received a paycheck for those additional hours only. Appellants filed the present action against respondent, alleging causes of action for violations of state minimum wage laws and the San Francisco Minimum Wage Ordinance (San Francisco Administrative Code, chapter 12R (SFMWO)). Among other things, appellants contended respondent improperly applied California Industrial Welfare Commission (“IWC”) Order No. 5, which relates to allowable credits for lodging and meals provided to employees. (Cal. Industrial Welfare Com., Order No. 5, July 1, 2003, as amended effective Jan. 1, 2007.) Following a court trial, the trial court found respondent underpaid appellants under San Francisco’s minimum wage law based on the difference between the minimum wage in the SFMWO and the maximum meal and lodging credits allowable under IWC Order No. 5. However, the trial court rejected appellants’ other claims based on respondent’s wage deductions for meals and based on respondent’s failure to provide wage statements, and declined to award liquidated damages on the minimum wage claims. On June 1, 2012, the trial court entered judgment awarding appellant Sok $1,126.56 in unpaid wages, plus interest and a statutory waiting time penalty; awarding appellant Borham $974.40 in unpaid wages, plus interest and a statutory waiting time penalty; and awarding appellant Borham $750 due to respondent’s failure to provide access to wage records upon demand (Lab. Code, § 226, subd. (f)). The court also awarded costs and $17,500 in attorney fees, which was half the lodestar fees requested. This appeal followed. This court dismissed the appeal in January 2013 because appellants failed to procure the record on appeal. In February 2013, this court granted appellants’ motion for relief from the dismissal. Appellants subsequently procured the transcripts that were missing from the record on appeal, with the exception of the transcript for November 3, 2011, the final day of trial and the day on which respondent presented its evidence. Appellants’ counsel submitted declarations to this court averring that he had been unable to obtain the transcript of that day from the court reporter. Appellants’ counsel’s final declaration, dated June 24, 2013, states, “I have been unable