DeJOHNN PORCH v. MASTERFOODS USA, INC., a Delaware Corporation, and DOES 1 to 500, inclusive

This disposition is not appropriate for publication and is not precedent*
except as provided by Ninth Circuit Rule 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DeJOHNN PORCH,
Plaintiff-Appellant,
v.
MASTERFOODS USA, INC., a Delaware
Corporation, and DOES 1 to 500,
inclusive,
Defendants-Appellees.
No. 08-56767
D.C. No. 2:06-CV-06431-SVW-
CW
MEMORANDUM *
On Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Submitted February 3, 2010
Pasadena, California
Before: KLEINFELD, WARDLAW, and CALLAHAN, Circuit Judges.
The district judge did not err in granting summary judgment against
DeJohnn Porch on his first two causes of action, for (1) failure to pay nonexempt
FILED
FEB 05 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 4 --

2
employees overtime wages and (2) failure to provide lunch periods in violation of
Cal. Labor Code § 512. We have jurisdiction pursuant to 28 U.S.C. § 1291, and
we affirm.
The evidence established no genuine issue of fact to support his claim that
he was prevented from taking the half hour lunch break to which he was entitled.
Porch was not barred from leaving the premises during his lunch break, and he was
not barred from obtaining overtime pay for working through his lunch break.
There was no evidence that Porch was deprived of any breaks to which he was
entitled or put in claims for any overtime he did not receive, and the evidence was
uncontradicted that employees who did report overtime were paid the overtime and
were not penalized for reporting it whether or not the overtime was pre-authorized.
No genuine issue is established by Porch’s evidence that his supervisor could see
him eating lunch at his desk and should have known that he was working overtime
even though he did not put in claims. Employees were free to take their lunch
breaks at their desks if they chose, and eating at one’s desk does not establish that
the employee was working rather than taking a break at his desk.

-- 2 of 4 --

3
Consequently, Porch’s claim under California Labor Code § 512 fails for
lack of a factual predicate. The most Porch established was that an employee could
theoretically be disciplined for claiming overtime that was not authorized by his
supervisor, but that is not the same thing as a claim that employees were required
to work overtime without claiming it. Being encouraged but not required to eat
lunch in the company cafeteria does not amount to being “require[d] . . . to work
during any meal or rest period” under California Labor Code § 226.7. Masterfoods
complied with California Industrial Welfare Commission Order No. 4-2001 §
7(A)(3), which requires employers to record meal periods, by establishing a half-
hour lunch break and providing employees the opportunity to modify the
automated meal time records if they took no meal break or a longer meal break. In
Cicairos v. Summit Logistics, Inc., 35 Cal. Rptr. 3d 243, 252 (Cal. Ct. App. 2005),
by contrast, the employee truck drivers were not given any means of recording
their meal breaks despite being required to record various other data into their
trucks’ onboard computer systems. No authority requires employers to record the
exact time of meal breaks, Masterfoods had a policy of half hour meal breaks, and
it did record when an employee advised that he did not take his meal break.

-- 3 of 4 --

4
Porch’s claim for failure to provide rest breaks in violation of Cal. Labor
Code § 226.7 fails. He has not identified any authority that supports the
proposition that California law prohibits taking meal and rest periods together.
Moreover, Masterfoods’ failure to provide a code for employees to report missed
rest periods is not actionable, because state law does not require employers to
record rest periods. Cal. Code Regs. tit. 8, § 11070. Because Porch did not
establish a genuine issue of fact as to whether any amounts due him were not paid,
he was not entitled to penalties under California Labor Code § 203. Porch’s final
two claims, for record-keeping violations under Cal. Labor Code § 226 and
violation of California’s Unfair Competition Law, Cal. Bus. & Prof. Code § 17200
et seq., fail as derivative of his previous claims.
AFFIRMED.

-- 4 of 4 --