Altiery v. Granite Rock Company CA6

Filed 8/27/21 Altiery v. Granite Rock Company CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

MARK ALTIERY, H045263 (Santa Clara County Plaintiff and Appellant, Super. Ct. No. CV274705)

v.

GRANITE ROCK COMPANY,

Defendant and Respondent.

State law requires employers to provide their nonexempt employees meal and rest breaks in conformance with regulatory wage orders issued on an industry-by-industry basis. (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1018 (Brinker).) Mark Altiery brought a putative class action against his former employer, Granite Rock Company, alleging defendant failed to provide rest breaks as required by applicable wage orders. He challenges the trial court’s denial of class certification on predominance and adequacy grounds. Finding no abuse of discretion, we will affirm. I. BACKGROUND Defendant is a northern California civil engineering and materials manufacturing company. Throughout its nine divisions, defendant employs several hundred union and nonunion employees in nonexempt positions, with the unionized trade employees operating under multiple collective bargaining agreements. The company’s onsite construction and mining operations are governed by Industrial Welfare Commission Wage Order No. 16. A different order, Wage Order No. 1, applies to employees not

covered by Wage Order No. 16. Both orders provide for rest periods “based on the total hours worked daily at the rate of ten (10) minutes net rest time per four (4) hours or major fraction thereof,” unless the employee’s “total daily work time is less than three and one- half (3 1/2) hours.” (Cal. Code Regs., tit. 8, §§ 11010(12)(A), 11160(11)(A)-(C).) Plaintiff is a cement mason who worked for defendant from October 2010 to November 2015. He filed a putative class action alleging that defendant failed to provide off-duty rest periods (Lab. Code, § 226.7; second cause of action) and committed unfair business practices (Bus. & Prof. Code, § 17200, et seq.; fourth cause of action). The operative complaint alleged that defendant had engaged in “a system of willful violations of the California Labor Code, Business and Professions Code and applicable IWC Wage Orders by creating and maintaining policies, practices and customs that knowingly deny employees [their] rights and benefits.” The complaint also alleged, as a pattern and practice, that defendant “regularly required employees to work through their rest periods without proper compensation and denied [plaintiff] and other employees the right to take proper rest periods as required by law.” (The trial court sustained defendant’s demurrer to a cause of action alleging failure to keep accurate wage statements (Lab. Code, § 226) and to a cause of action for workplace violation penalties under the Private Attorneys General Act (Lab. Code, § 2698, et seq.) Those rulings are not challenged in this appeal.) Class Certification Motion Plaintiff moved to certify a “rest period class” consisting of “[a]ll current and former non-exempt employees of [defendant] who worked for [defendant] in the State of California at any time during the period of time from December 18, 2010, through January 31, 2013, and worked 3.5 hours or more in any shift.” (According to plaintiff’s opening brief, defendant updated its rest break policy after January 2013.) Plaintiff argued that the case “undisputed[ly] … presents a predominant question of law and fact: namely, whether [d]efendant’s policy violates Brinker.” The Supreme Court in Brinker construed wage order language requiring a rest break every “ ‘four (4) hours or major 2