Douglas Troester, on behalf of himself and all others similarly situated v. STARBUCKS CORPORATION, Washington corporation

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DOUGLAS TROESTER, on behalf of
himself and all others similarly situated,
Plaintiff - Appellant,
v.
STARBUCKS CORPORATION,
Washington corporation,
Defendant - Appellee.
No. 14-55530
D.C. No. 2:12-cv-07677-GAF-
PJW
Central District of California,
Los Angeles
ORDER CERTIFYING A
QUESTION TO THE SUPREME
COURT OF CALIFORNIA
Before: FERNANDEZ and BEA, Circuit Judges, and GONZALEZ ROGERS,*
District Judge.
Because the question of whether the de minimis doctrine applies to
Appellant’s claims “could determine the outcome” of the pending appeal in
accordance with Rule 8.548(a)(1) of the California Rules of Court, and any further
proceedings were we to reverse and remand the grant of summary judgment here,
we respectfully request that the California Supreme Court exercise its discretion to
accept and decide the certified question below in Section II.
I. CAPTION AND COUNSEL
FILED
JUN 02 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* The Honorable Yvonne Gonzalez Rogers, District Judge for the U.S.
District Court for the Northern District of California, sitting by designation.

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A. The caption of the case is:
No. 14-55530
DOUGLAS TROESTER,
on behalf of himself and all other similarly situated,
Plaintiff-Appellant,
v.
STARBUCKS CORPORATION,
Defendant-Appellee.
B. The names and addresses of counsel for the parties are:
For Plaintiff-Appellant:
Louis Max Benowitz, Law Offices of Louis Benowitz, 9454 Wilshire Blvd.
Beverly Hills, CA 90212
Chaim Shaun Setareh, Setareh Law Group, 9454 Wilshire Boulevard, Suite
907, Beverly Hills, CA 90212
David Glenn Spivak, The Spivak Law Firm, 9454 Wilshire Blvd., Suite 303
Beverly Hills, CA 90212
For Defendant-Appellee:
Mark R. Curiel and Gregory William Knopp
Akin Gump Strauss Hauer & Feld LLP, 2029 Century Park East, Suite 2400
Los Angeles, CA 90067
Galit Knotz and Rex S. Heinke,
Akin Gump Strauss Hauer & Feld LLP, 580 California Street, Suite 1500,
San Francisco, CA 94104-1036
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C. Designation of party deemed petitioner: Plaintiff-Appellant
II. QUESTION CERTIFIED
Pursuant to Rule 8.548 of the California Rules of Court, we request that the
California Supreme Court answer the following question:
Does the federal Fair Labor Standards Act’s de minimis doctrine, as
stated in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 692
(1946) and Lindow v. United States, 738 F.2d 1057, 1063 (9th Cir.
1984), apply to claims for unpaid wages under the California Labor
Code sections 510, 1194, and 1197?
We understand that the Court may reformulate our question, and we agree to
accept and follow the Court’s decision.
III. BACKGROUND
On August 6, 2012, Appellant filed the original Complaint in this action in
Los Angeles County Superior Court on behalf of himself and a putative class of all
non-managerial California employees of Defendant-Appellee Starbucks who
performed store closing tasks for the time period from mid-2009 to October 2010.
Appellant worked for Starbucks as a shift supervisor. Starbucks removed the
action to the federal district court and thereafter moved for summary judgment on
grounds that Appellant’s uncompensated time was so de minimis that Starbucks
was not required to compensate him.
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Appellant submitted evidence that, during the relevant alleged class period,
Starbucks’ computer software required him to clock out on every closing shift
before initiating the software’s “close store procedure” on a separate computer
terminal in the back office. The close store procedure transmitted daily sales,
profit and loss, and store inventory data to Starbucks’ corporate headquarters.
After Appellant completed this task, he activated the alarm, exited the store, and
locked the front door. Appellant also submitted evidence that, per Starbucks’
policy, he walked his co-workers to their cars. In addition, Appellant submitted
evidence that he occasionally reopened the store to allow employees to retrieve
items they left behind, waited with employees for their rides to arrive, or brought
in store patio furniture mistakenly left outside.
On March 7, 2014, the district court granted Starbucks’ motion for summary
judgment. The district court’s decision assumed that each activity identified above
was compensable for purposes of its analysis. The undisputed evidence was that,
on a daily basis, these closing tasks generally took Appellant about 4-10 minutes.
In the aggregate over this seventeen month period in his employment, his unpaid
closing shift time totaled approximately 12 hours and 50 minutes, or about $102.67
at the then-applicable minimum wage of $8.00 per hour, exclusive of any penalties
or other remedies. It further assumed that the additional time would be
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administratively difficult to capture. Finally, while acknowledging that
Appellant’s closing activities were regularly occurring, the district court found that
regularity not significant to its conclusion that the uncompensated time was de
minimis. The district court concluded that the de minimis doctrine applied and,
based thereon, granted summary judgment against Appellant on his claim for
unpaid wages, and his derivative claims for failure to provide accurate written
wage statements, failure to pay all final wages in a timely manner, and unfair
competition.
IV. EXPLANATION OF CERTIFICATION
Under the federal Fair Labor Standards Act (FLSA), employers are relieved
from liability for unpaid wages where otherwise compensable time was de minimis.
Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 692 (1946); Lindow v. United
States, 738 F.2d 1057, 1063 (9th Cir. 1984) (enumerating factors to determine
whether time at issue is de minimis, including “(1) the practical administrative
difficulty of recording the additional time; (2) the aggregate amount of
compensable time; and (3) the regularity of the additional work.”). The outcome
of the appeal herein could be determined depending upon whether the de minimis
doctrine applies to California Labor Code claims for unpaid wages.
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The California Supreme Court has not addressed the question. A panel of
this Circuit, in an unpublished disposition, predicted that the California Supreme
Court would decide the doctrine is applicable to such claims. Gillings v. Time
Warner Cable LLC, 583 F. App’x 712, 714 (9th Cir. 2014). However, recent
authority from the California Supreme Court, in Mendiola v. CPS Sec. Solutions,
Inc., 60 Cal.4th 833, 842-43 (2015), along with its long-standing precedent
declining to import federal limitations into more employee-protective California
Labor Code provisions, was not before that panel. Similarly, another panel of this
Circuit, following much the same analysis as Gillings, recently found the de
minimis doctrine applicable, though the issue was not raised on appeal. Corbin v.
Time Warner Entm’t-Advance/Newhouse P’ship, No. 13-55622, slip op. at 22-23
n.11, __ F.3d __, 2016 WL 1730403 at *12 n.11 (9th Cir. May 2, 2016) (holding
one minute of off-the-clock work to be de minimis such that a California Labor
Code claim for inaccurate wage statements failed).
One published decision of an intermediate California court of appeal
addresses the de minimis doctrine in a context outside the California Labor Code,
holding that the doctrine applied to a common law claim for promissory estoppel.
See Gomez v. Lincare, Inc., 173 Cal. App. 4th 508, 526 (2009). Three California
courts of appeal and one trial court, in decisions ordered not published, have
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considered the de minimis doctrine in connection with claims for unpaid wages
arising under the California Labor Code. See Chavez v. Angelica Corp., No.
D063199, 2014 WL 6973497, at *1 (Cal. Ct. App. Dec. 10, 2014) (claims for
unpaid minimum wage, overtime, meal and rest breaks under Cal. Labor Code
226.7, 510, 512, 1197); Mosley v. St. Supery Vineyards & Winery, No. A137373,
2014 WL 793130 (Cal. Ct. App. Feb. 27, 2014) (claim for waiting time penalties
under Cal. Labor Code § 203); LoJack Corp. v. Superior Court, No. B219647,
2010 WL 1137044 (Cal. Ct. App. Mar. 26, 2010) (unpublished) (meal and rest
break claims under Cal. Labor Code § 226.7); Savaglio v. Wal-Mart Stores, Inc.,
No. C-835687, 2004 WL 2034092, at *1 (Cal. Super. Ct. July 20, 2004) (meal
break claims under Cal. Labor Code § 226.7). Of these, only Mosley briefly
considered whether the federal de minimis rule applied to a California Labor Code
claim, concluding it should apply based on authority holding that California courts
refer to federal decisions when interpreting employment discrimination laws.
Mosley, 2014 WL 793130, at *8 n. 5 (citing Horn v. Cushman & Wakefield
Western, Inc., 72 Cal.App.4th 798, 805-07 (1999)). In addition, one California
court of appeal declined to reach the question of whether significant differences
between federal and California labor law precluded application of the de minimis
rule. See Bustamante v. Teamone Employment Specialists, LLC, No. B222136,
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2011 WL 1844628 at *10 (Cal. Ct. App. May 17, 2011), as modified on denial of
reh’g (June 6, 2011) (“We need not determine whether the de minimis rule applies
to California wage and hour cases because, even if it does apply, disputed issues of
fact preclude summary judgment in this case” concerning overtime and meal
periods claims under Cal. Labor Code §§ 510, 512).
In Mendiola, the California Supreme Court held that FLSA regulations
excluding on-call time from hours worked did not apply to claims under the
California Labor Code. Mendiola v. CPS Sec. Solutions, Inc., 60 Cal.4th 833, 842-
43 (2015). The California Supreme Court declined to incorporate FLSA standards
denying such compensation in reaching its determination, concluding that the state
regulatory agency “intended to import federal rules only in those circumstances to
which the [agency] made specific reference.” Id. at 843. The Mendiola court
reiterated earlier California Supreme Court precedent providing that “courts should
not incorporate a federal standard concerning what time is compensable ‘[a]bsent
convincing evidence of the [state regulatory agency’s] intent’” to incorporate such
standards. Id. at 846 (emphasis in original, quoting Morillion, 22 Cal.4th at p.
592).
The California Supreme Court has long held that state wage and hour laws
“although at times patterned after federal regulations, also sometimes provide
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greater protection than is provided under federal law in the Fair Labor Standards
Act (FLSA) and accompanying federal regulations.” Ramirez v. Yosemite Water
Co., 20 Cal.4th 785, 795 (1999); see Martinez v. Combs, 49 Cal.4th 35, 67, 68
(2010) (reiterating Ramirez’s holding “that where the language or intent of state
and federal labor laws substantially differ, reliance on federal regulations or
interpretations to construe state regulations is misplaced”; when “the IWC intended
the FLSA to apply to wage orders, it has specifically so stated.”); Morillion v.
Royal Packing Co., 22 Cal.4th 575, 592 (2000); Tidewater Marine W., Inc. v.
Bradshaw, 14 Cal. 4th 557, 573-74 (1996) (rejecting federal rule for calculating the
overtime rate of pay in a California overtime claim); see also Gonzalez v.
Downtown LA Motors, LP, 215 Cal.App.4th 36, 40 (2013) (rejecting FLSA
averaging in favor of California requirement to be paid minimum wage for all
hours required to remain at work); Armenta v. Osmose, Inc., 135 Cal.App.4th 314,
323–24 (2005) (FLSA minimum wage standards different from California’s
significantly; employer violated minimum wage statute even if average of paid and
unpaid hours exceeded minimum wage).
The federal de minimis rule could be seen as less employee-protective than
California’s wage and hour laws and, therefore, at odds with those laws. See, e.g.,
8 Cal. Code Regs. § 11050(4) (must be paid minimum wage for all hours worked);
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Cal. Lab. Code § 1194(a) (right to be paid at least the minimum wage for each hour
worked is non-waivable); 8 Cal. Code Regs. § 11050(2)(K) (“hours worked”
defined as all “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.”).1
For these reasons, we seek the California Supreme Court’s determination as
to whether the de minimis test applies and submit that the answer given by the
Court will either dispose of the appeal or determine how the case might proceed
were we to remand this putative class action to the district court.
V. ACCOMPANYING MATERIALS
The clerk of this court is hereby directed to file in the California Supreme
Court, under official seal of the United States Court of Appeals for the Ninth
Circuit, copies of all relevant briefs and excerpts of record, and an original and ten
copies of the request with a certification of service on the parties, pursuant to
California Rules of Court 8.548(c), (d).
1 California’s Division of Labor Standards Enforcement (“DLSE”) has
incorporated the de minimis rule into its enforcement manual and a published
opinion letter, which, though they are not entitled to deference, are some indication
of how the law is currently interpreted by the agency charged with enforcing it.
See Calif. Div. of Labor Standards Enforcement, Enforcement Policies and
Interpretations Manual (revised 2002), § 47.2.1; DLSE Opinion Letter 1995.06.02.
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Further proceedings before us are stayed pending the California Supreme
Court’s decision regarding certification, and in the event the California Supreme
Court accepts certification, pending our receipt of the answer to the question
certified. Submission of this case is withdrawn.
After the California Supreme Court makes its determination whether to
accept certification of this question, the parties shall file a joint report informing
this court of the decision. If the California Supreme Court accepts the certified
question, the parties shall file a joint status report to our court every six months
after the date of acceptance.
If the California Supreme Court denies the request for certification, this case
will be automatically resubmitted upon notice of that denial. If the California
Supreme Court accepts the certified question, the case will be automatically
resubmitted upon receipt of the California Supreme Court’s answer to the certified
question.
IT IS SO ORDERED.
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