Zhao v. Lincoln Park Motel CA2/5

Filed 11/20/14 Zhao v. Lincoln Park Motel CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

GARY ZHAO, B252601

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BC480443) v.

LINCOLN PARK MOTEL, L.P.,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Malcolm Mackey, Judge. Affirmed. Henry J. Josefsberg, for Defendant and Appellant. DesJardins & Panitz, Michael A. DesJardins, for Plaintiff and Respondent.

Defendant Lincoln Park Motel L.P. (the “Motel”) appeals the judgment entered in favor of plaintiff Gary Zhao (“Zhao”) on his complaint alleging wage and hour violations under the Labor Code. The Motel maintains that the trial court misapplied the relevant case law to the undisputed facts of this case. We disagree, and so affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND The Motel has 24 rooms for rent, each with its own bathroom. It is licensed primarily as a residential hotel. Zhao was hired as the resident manager of the Motel in 2008. He was required to live on the premises, in a room off of the Motel’s office which had access to a shared bathroom and a small kitchen. In addition to staffing the front desk for an eight-hour shift each day, Zhao was responsible for contacting repair and maintenance people, arranging for maids to clean the rooms, and generally being on call to respond to emergencies. He was paid at the rate of $8 per hour for his services. While he was covering the front desk, he was not permitted to engage in any personal activities; however, when “on-call,” he could do so. Alone among the clerks who worked eight- hour shifts covering the front desk, the Motel did not pay Zhao for the entire eight hours he was required to sit at the desk, but only for the time when he was “actually working” by, for example, checking guests in or out of their rooms, answering the telephone, or arranging for housekeeping services. On March 8, 2012, Zhao and four other plaintiffs filed a complaint against the Motel, claiming wage and hour violations under the Labor Code, including the failure to provide rest breaks and meal breaks (Lab. Code § 226.7); failure to pay minimum wage (Lab. Code, §1182.12); failure to pay overtime pay (Lab. Code, § 510); failure to pay wages in a timely manner (Lab. Code, § 210); and failure to provide accurate pay statements (Lab. Code, § 226, subd. (a)). Plaintiffs also alleged a cause of action for unfair competition under Business & Professions Code section 17200 et seq. based on the enumerated violations of the Labor Code. The Motel maintained that, pursuant to the authority of Brewer v. Patel (1993) 20 Cal.App.4th 1017 (“Brewer”) and Isner v. Falkenberg/Gilliam & Associates, Inc. (2008)