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Hermann v. Stratton2/7/2002
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Elayne Hermann appeals from a judgment after an order granting summary adjudication of three causes of action in her suit against her employer, Charles Stratton, D.D.S., Inc., a professional dental corporation. We reverse the order granting summary adjudication because Stratton failed to establish, by undisputed facts, that appellant did not work overtime hours without being paid. Because of a lack of undisputed evidence of a bona fide dispute over the compromised wages, summary adjudication should not have been granted on the basis of the purported compromise. (Lab. Code, ยงยง 206, 206.5.)
BACKGROUND
The following facts are taken from documents filed in support of respondent's motion for summary adjudication. Charles Stratton is a licensed dentist and an employee of Charles E. Stratton, D.D.S., Inc., a professional corporation. Stratton hired appellant as a dental hygienist in January of 1997. She generally worked eight hours a day, four days a week, for approximately 32 hours a week as an at will employee. It is undisputed that appellant was required to come in 15 minutes early every morning to attend the morning office meeting. No one expressly told appellant she would be paid for that time. Stratton required respondent to maintain time cards for her work time each day.
In July of 1999, appellant made a claim for overtime pay based on the requirement that she be in the office 15 minutes early every day. Appellant also claimed that she had not been paid for occasions when she stayed beyond 5 p.m. to finish with her last patient.
Stratton told appellant there would be no overtime pay, but if she objected to the extra time, he could change the system to shorten the appointment of the first patient of the day. He paid his employees for an eight-hour day when they worked eight hours and paid them less when they did not work eight hours. He did not pay for overtime. Stratton felt that the hygienists should be able to finish their work within eight hours and that it was their fault if they exceeded those hours.
He conceded that there were occasions when patients were "still in the chair at the appointed hour for quitting." He instructed his employees to reschedule patients if they could not finish cleaning their teeth by 5 p.m.
Stratton called the Labor Commissioner's office for advice about appellant's claim and decided to investigate the claim and try to work out a resolution. On September 5, 1999, Stratton called appellant and told her he had reviewed the time records for the first 8 months of her employment and determined that the average amount of time in dispute was 19 minutes a day. He asked appellant if she would agree to a calculation based on 20 minutes a day. Appellant agreed. On September 9, 1999, Stratton told appellant that he multiplied the number of days worked times 20 minutes and computed her wages at the rate of $35 an hour, which totaled $5,495. He told her to think about that figure over the weekend. Stratton gave her a written agreement providing for installment payments and told her to propose any changes she felt were necessary. Appellant reviewed the agreement and did not propose any changes.
On September 20, 1999, appellant signed the agreement, which stated as follows: "The undersigned agree that the sum of $5,495.00 represents a fair and total r
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