Silva v. Trilight Properties CA1/1

Filed 6/25/15 Silva v. Trilight Properties CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

ARI SILVA, Plaintiff and Appellant, A142210 v. TRILIGHT PROPERTIES LLC et al., (Alameda County Super. Ct. No. RG13700678) Defendants and Respondents.

After receiving an adverse decision by the Labor Commissioner on his wage and overtime claims, plaintiff and appellant Ari Silva appealed to the superior court. After a trial de novo, the superior court also ruled against him, finding that time sheets he produced for the first time in the superior court were not authentic, and ruling, as had the administrative law judge (ALJ), that his theories of recovery were contrary to established law. Silva now appeals from the adverse judgment entered by the court. We affirm.1 The decision by the ALJ reveals that Silva’s wage and hour claims arise from his employment as the on-site manager of a 49-unit apartment building between June 15, 2007 and September 30, 2009. He was required to reside on the premises and was provided an apartment at no cost. He was also required to be available within a “reasonable” period of time to respond to emergencies 24 hours a day, seven days a week. During his employment, Silva reported and was paid for any overtime work. He subsequently claimed he was owed wages and overtime for additional hours he was

1 We conclude this matter is proper for disposition by memorandum opinion in accordance with California Rules of Court, standard 8.1.

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“available,” essentially that he should be compensated for 24 hours a day, seven days a week. The ALJ explained that under the applicable Wage Order No. 5 (Industrial Welfare Commission Order No. 5-2001), public housekeeping employees required to reside on-site do not “work” 24 hours a day, seven days a week. “The compensation of a residential manager in an apartment building, hotel, or other similar business has been extensively litigated and there is well-established case law setting forth an employer’s obligations with regard to paying a residential manager for the time he spends at the employer’s place of business.” The ALJ accordingly rejected Silva’s wage and overtime claims, and that became the decision of the Commissioner. Pursuant to Labor Code section 98.2, subdivision (a), Silva appealed to the superior court and was accorded de novo review of the Commissioner’s denial of his wage and overtime claims.2 In its written decision, the superior court found that during his employment Silva had submitted timesheets and been paid for reported overtime. The court further found that timesheets Silva produced after the administrative hearing were “not authentic time records but an after-the-fact set of records manufactured shortly before trial in an attempt to bolster [his] claim.” The court concluded Silva had been paid in accordance with the applicable law. “The decision of the trial court, after de novo hearing [in a section 98.2 appeal], is subject to a conventional appeal to an appropriate appellate court. [Citation.] Review is of the facts presented to the trial court, which may include entirely new evidence.” (Post, supra, 23 Cal.4th at p. 948; see Nordquist v. McGraw-Hill Broadcasting Co. (1995) 32 Cal.App.4th 555, 560–561 [substantial evidence standard of review applies to trial court’s findings in Lab. Code, § 98.2 appeal].)