Zhao v. Lincoln Park Motel CA2/5 ( 2014 )

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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)
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160 Cal. App. 4th 1393 (“Isner”), it was not required to pay Zhou for the time that he sat at
the front desk for eight-hour shifts but was not actually answering phones, responding to
guest inquiries, or otherwise actively providing services to the Motel.
Following a bench trial consisting of three days of testimony and arguments of
counsel, the court concluded that Zhou was entitled to wages for all of the time that he
was required to sit at the front desk. Said the court: “He’s a desk clerk for eight hours
there. To me, that’s it. That’s the actual work. Whether he actually – but he’s there.”
The court entered judgment in favor of Zhao in the sum of $33,584.1
The Motel timely appealed the judgment in favor of Zhao “and no other parties.”
On appeal, the Motel contends that the trial court failed to properly apply the holdings of
Brewer and Isner to the facts of this case.
DISCUSSION
Brewer, supra, 20 Cal. App. 4th 1017, concerned the interpretation of Wage Order
No. 5-89, a regulation issued by the Labor Commissioner concerning the wages, hours
and working condition of persons employed in, among other things, the hospitality
industry. The current version of Wage Order No. 52 states in part: “‘Hours worked’
means the time during which an employee is subject to the control of an employer, and
includes all the time the employee is suffered or permitted to work, whether or not
required to do so, and in the case of an employee who is required to reside on the
employment premises, that time spent carrying out assigned duties shall be counted as
hours worked.” (Cal. Code Regs. tit. 8, § 11050, subd. (2)(K).)
The employee in Brewer worked at a 25-unit motel as an office clerk, with
primary responsibility for checking guests in and out of their rooms and answering the
motel’s telephone. These duties required, on average, less than five hours a day to
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The other plaintiffs received smaller awards under the judgment. In addition, the
court awarded plaintiffs $75,000 in attorney fees.
2
Wage Order 5-89 has been superseded by Wage Order 5-2001. The two versions
of the wage order are identical in all respects pertinent to this discussion.
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perform. Brewer was also required to keep the motel office open from 6 a.m. to 10 p.m.
every day, and was expected to remain on the motel premises 24 hours a day. When not
actually working, Brewer was free to “relax in his apartment, watch television, or attend
to his own personal needs.” (Brewer, supra, 20 Cal.App.4th at p. 1019.) Brewer filed a
claim with the Labor Commissioner claiming that he was entitled to be paid for the entire
time that he spent at the motel, less certain offsets. His employer contended that he was
owed wages only for the time that he actually provided services. The trial court agreed
with the employer, as did the appellate court.
The Brewer court began its discussion by noting that Wage Order No. 5 “mandates
a special rule for apartment managers and motel clerks who are obligated to reside on the
work premises. In that situation, only ‘that time spent carrying out assigned duties shall
be counted as hours worked.’” The court reasoned that this language “is obviously meant
to address the special circumstances of those who are required to reside where they work.
An employee such as this is not always working. At times he may be away from the
work site shopping, or visiting with friends. At other times, the employee may be on the
work premises but attending to personal matters such as cooking, cleaning, or watching
television. The language quoted above accepts this reality and states that an employee in
this situation must be compensated only for ‘that time spent carrying out assigned duties,’
in other words, only for the work the employee actually provides.” (Brewer, supra, 20
Cal.App.4th at p. 1021.) The court concluded that, because Brewer’s “assigned duties”
took less than five hours a day to perform, he was entitled to no additional wages.
The issue of wages due a resident motel employee was again addressed in Isner,
supra, 160 Cal. App. 4th 1393. There, the Isners, a married couple, were resident
employees of a property management company providing housing for the elderly. Their
employment agreement provided as follows: “‘Employee shall be on call and respond to
the facility’s emergency alarm systems on designated evenings from 5:00 p.m. until 8:00
a.m. and on designated weekends from 5:00 p.m. Friday evening until 8:00 a.m. Monday
morning. While on call, Employee shall remain on the facility premises within hearing
distance of the emergency alarm systems and telephone but is otherwise free to use on-
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call time as he or she chooses.’” (Id. at p. 1395.) The referenced alarm system consisted
of “a buzzer that sounded in the resident employees’ apartments whenever a smoke alarm
was triggered or a tenant pushed an emergency call button.” (Id. at p. 1396.) When on
duty and on call, the Isners “slept, ate, talked on their personal telephone, used the
internet, played computer games, read magazines or watched television in their apartment
when they were not responding to an emergency. They could not, however, go to the
pool or walk around the apartment complex, presumably because they would then be out
of audible range of the telephone and alarm. Needless to say, during their on-call time,
the Isners could not leave the premises to go to a movie or go shopping together . . . .”
(Ibid.)
The Isners filed a class action lawsuit, claiming that the defendants’ resident
employees were entitled to wages “not just for the hours they spent responding to
emergencies while on call, but for all the hours they were on call and thus confined to
their apartment or the building office so as to remain within audible range of the
telephone and alarm.” (Id. at p. 1398.) Our colleagues in Division Eight of this District
Court of Appeal affirmed the grant of summary judgment in favor of the employer. Said
the court, “under Brewer, employees who are required to reside where they work are
entitled to be compensated for time spent performing their assigned duties; they [] are not
entitled to be compensated for time spent simply being available to perform those duties.”
(Id. at p. 1400.)
Here, the Motel maintains that it is undisputed that Zhou was only required to
perform actual work such as checking guests in and out of rooms and arranging for maid
service, for at most five hours a day, even though he was stationed at the front desk
throughout an eight-hour shift. However, the trial court found, and the Motel does not
dispute, that Zhou was required to be at the front desk throughout his entire shift, and was
not permitted, for example, to retire to his apartment and simply appear in response to
being summoned, as he was permitted to do when he was on-call but not working his
desk shift. Substantial evidence supports the trial court’s findings. Zhou testified that
when he was on duty as the desk clerk, he was not permitted to leave his post. The Motel
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offers no contradictory evidence on the subject, and in any event, the credibility of the
witnesses is completely within the province of the trier of fact.
Moreover, the Motel’s legal position was that, while the other desk clerks were
entitled to be paid for their full eight-hour shifts, Zhou was not entitled to compensation
for the time he was on duty simply because he had additional duties as resident manager
and was required to reside on the premises. In a colloquy on the first day of trial, Zhou’s
lawyer remarked: “If counsel wants to argue that if you’re sitting at the front desk
covering a shift and nobody is standing in front of you talking to you and you happened
to be the resident manager, that means that you’re not working and not entitled to be paid
for that period of time, I dispute that characterization. I don’t think that’s a reasonable
characterization. I don’t think that’s what the law provides.” The motel’s counsel
responded, “I think that is what Brewer v. Patel says.”
We concur with the trial court’s conclusion that that is not what Brewer says.
Zhou’s compensation claim is factually distinguishable from the employee’s claim in
Brewer. There, the employee sought compensation for all of the time that he was
physically on the premises and subject to being summoned to perform work, though he
was free to engage in activities of his choosing. Here, Zhou was seeking compensation
not for the time that he was “on call,” but for the time he was performing his “assigned
duties” of staffing the front desk over a specified eight-hour time period. Zhou is entitled
to be paid for performing those assigned duties.
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DISPOSITION
The judgment of the trial court is affirmed. Zhao shall recover his costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MINK, J.
We concur:
MOSK, ACTING P.J.
KRIEGLER, J.

Retired judge of the Los Angeles Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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