Litmon v. Reliant Travel CA1/1

Filed 6/24/15 Litmon v. Reliant Travel CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

DAVID LITMON, JR., Plaintiff and Respondent, A142211 v. RELIANT TRAVEL, LLC, (Alameda County Super. Ct. No. RG13680040) Defendant and Appellant.

Defendant Reliant Travel, LLC, appeals from a judgment awarding $9,260 in unpaid wages to plaintiff David Litmon, Jr. Judgment was entered after a bench trial on an appeal of an order of the Labor Commissioner that denied the wage claim. We conclude Reliant has failed to carry its burden of affirmatively demonstrating error, and we therefore affirm the judgment. BACKGROUND In July 2012, Litmon filed a claim with the commissioner under Industrial Welfare Commission (IWC) Wage Order 9-2001, which generally provides for weekly overtime for hours worked in excess of 40 hours per week and daily overtime for hours worked in excess of eight hours per day. Litmon alleged he had been employed by Reliant and was owed overtime wages, severance pay, liquidated damages, and penalties. During his employment, Litmon drove buses to transport patrons to gambling casinos. In August 2012, Litmon was assigned additional duties and assumed the title of safety and compliance supervisor.

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A hearing was held before the commissioner in April 2013. The commissioner ruled that Litmon was exempt from overtime requirements because (1) he fell within the executive exemption by performing duties such as conducting performance evaluations after being promoted; (2) he fell within the administrative exemption because he was “involved in Defendant’s general business operations, exercised discretion and independent judgment on a regular basis, and performed his duties under only general supervision”; and (3) his hours were governed by Title 13 of the California Code of Regulations, not IWC Wage Order 9-200, because he was a driver of a motor vehicle designed to carry more than 10 persons. The commissioner ordered that Litmon “take nothing by virtue of his complaint.” Litmon, appearing in pro per, filed a notice of appeal of the commissioner’s order in Alameda County Superior Court. Court minutes of April 18, 2014, show he appeared at a hearing before Judge Frank Roesch and testified on his own behalf. Reliant also appeared and presented two witnesses. Litmon’s exhibits A, B, D, E, and F were marked and admitted into evidence; Reliant’s exhibits 5 through 9 and 11 through 14 were marked and admitted into evidence. None of the testimony or exhibits, however, is included in our appellate record. On April 23, 2014, Judge Roesch granted judgment in favor of Litmon in the amount of $9,260, ruling as follows: “The court finds that [Litmon] does not qualify as an ‘executive’ because his duties cannot be said to include the management of the enterprise or any department or subdivision. [Litmon] did not regularly direct the work of any employees, and did not have authority to hire or fire or promote or demote any employees working for defendant Reliant Travel. [Litmon]’s work did not include the regular exercise of discretion or the use of his independent judgment. Further, [Litmon] did perform office work directly related to the business operations of his employer, but he did not directly assist the proprietor and was not employed in a bona fide executive or administrative capacity.” The judgment was entered on April 29, 2014.