Charles Jones, an individual v. AB ACQUISITION, LLC, a Delaware limited liability company;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHARLES JONES, an individual and on
behalf of all others similarly situated and
the general public,
Plaintiff-Appellant,
v.
AB ACQUISITION, LLC, a Delaware
limited liability company; et al.,
Defendants-Appellees.
No. 16-55955
D.C. No.
2:14-cv-08535-DSF-JEM
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Argued and Submitted November 9, 2017
Pasadena, California
Before: LINN,** BERZON, and WATFORD, Circuit Judges.
FILED
NOV 20 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Richard Linn, Senior United States Circuit Judge for
the U.S. Court of Appeals for the Federal Circuit, sitting by designation.

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1. The district court properly granted summary judgment with respect to
Charles Jones’ claims regarding the El Cajon alternative workweek schedule
(AWS). Under California law, “affected employees in the work unit” may vote to
adopt an AWS. Cal. Code Regs. tit. 8, § 11040(3)(C)(2); see Cal. Labor Code
§ 511. This rule should be “liberally construed” to promote the California Labor
Code’s purpose: protecting employees. Brinker Restaurant Corp. v. Superior
Court, 273 P.3d 513, 527 (Cal. 2012). And according to the California Division of
Labor Standards Enforcement (DLSE), which enforces the relevant regulations,
workers should have the opportunity to decide whether they want an AWS. DLSE
Opinion Letter, March 31, 1991. Therefore, the DLSE insists only that the work
unit be “readily identifiable” and that affected employees be informed of a
proposed schedule before an election. Id.
This guidance is consistent with the applicable statutes and regulations, see
Cal. Labor Code § 511, Cal. Code Regs. tit. 8, § 11040(3)(C), which do not contain
the restrictions on AWS elections that Jones suggests. Jones was eligible to vote
because the work unit was identifiable and he was informed of the proposed AWS.
To require more would limit employees’ ability to participate in AWS elections
affecting their future work schedules. Indeed, if Jones’ restrictive interpretation
were correct, employees who had been offered and accepted a position but not yet

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worked a shift would be unable to weigh in on the selection of their schedule by
employees already in the unit. That result is at odds with what the AWS rules
require. And contrary to Jones’ contention, his interpretation is not necessary to
prevent employer coercion. Such coercion is already prohibited. Cal. Code Regs.
tit. 8, § 11040(3)(C)(8). The timing of the election does not affect the possibility
or fear of retributory adverse employment actions.
Albertson’s lawfully returned Jones to a regular schedule after it learned that
Jones objected to the El Cajon AWS. An AWS repeal election may take place
more than 12 months after workers first vote to adopt the schedule. Cal. Code
Regs. tit. 8, § 11040(3)(C)(5). But employers may accommodate individual
employees who prefer a different arrangement at any time. For instance,
employers are directed to “make a reasonable effort” to accommodate employees
who are “unable to work the [AWS].” Cal. Code Regs. tit. 8, § 11040(3)(B)(5).
Jones’ attempts to distinguish this provision are unpersuasive. To accept his
argument, we would have to conclude that employers are prohibited from
accommodating an employee who prefers a different schedule, so long as the
employee is capable of working the AWS. The Labor Code and the AWS rules do
not require such a result.

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2. The district court properly granted summary judgment with respect to
Jones’ conversion claim. Under California law, when the Legislature creates a
right that did not exist at common law and provides a comprehensive remedial
scheme for that right, the statutory remedies are exclusive. See Orloff v. Los
Angeles Turf Club, 180 P.2d 321, 322 (Cal. 1947). The common law in California
did not recognize a right to overtime compensation “absent an express contract to
that effect.” Aubry v. Goldhor, 201 Cal. App. 3d 399, 404 (Cal. Ct. App. 1988).
The Labor Code established that right. Id. Accordingly, Jones’ conversion claim
is precluded.
The authority on which Jones relies is not to the contrary. In Rojo v. Kliger,
801 P.2d 373, 375 (Cal. 1990), the California Supreme Court held that a plaintiff
could bring common law claims alleging employment discrimination despite the
existence of a remedial statutory scheme. But as the Rojo court explained, the right
to be free from discrimination in employment did exist at common law. Id. at 381.
The non-comprehensive statutory remedies thus did not extinguish the preexisting
common law remedies. Likewise, in Lu v. Hawaiian Gardens Casino, Inc., 236
P.3d 346, 353 (Cal. 2010), the California Supreme Court suggested that a
conversion claim would be available against an employer that improperly withheld

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tips under the Labor Code. But there, too, the Court suggested that the common
law already recognized the right at issue. Id. at 351.
Because we affirm the district court’s order granting summary judgment and
the parties have conceded that the district court’s order forecloses the only theory
of liability Jones intended to pursue, we need not address the dismissal of Jones’
putative class allegations.
AFFIRMED.

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