Leighton v. Old Heidelberg, Ltd
In Leighton v. Old Heidelberg, Ltd. (1990) 219 Cal.App.3d 1062, the plaintiff, a waitress, sued the restaurant by that name for wrongful discharge.
The plaintiff was fired because she refused to share her tips with the busboys, even though she was told when she was hired that she was required to do so.
Under the rules of the particular tip pool, the plaintiff was to contribute 15 percent of tips collected to the busboys.
The restaurant's motion for summary judgment was granted. The judgment was initially affirmed by the appellate department of the superior court.
The Court of Appeal deemed "the issue of the legality of employer-mandated tip pooling among employees to be of statewide importance and issued an order transferring the cause to this court." (Old Heidelberg, supra, 219 Cal.App.3d at p. 1065.)
The plaintiff contended that it was an issue of fact whether she was wrongfully discharged. The Court of Appeal, however, found that the issue was one of law and not of fact.
According to the appellate court, the plaintiff's "wrongful termination suit can succeed only if employer-mandated tip pooling among employees is prohibited by section 351." (Old Heidelberg, supra, 219 Cal.App.3d at p. 1067.)
The way that the plaintiff in Old Heidelberg articulated her argument is important. She contended that section 351 prohibits the employer from appropriating tips left for the employee and that giving part of her tip to the busboys was just such a prohibited taking or misappropriation.
The Court of Appeal rejected this contention in words upon which we cannot improve, which we set forth in the margin. 4 In essence, the court found that, in leaving a tip, the patron intends to tip more than just the server or waiter.
"If more than one employee, for example a waitress and a busboy, directly serve the table of a patron, the gratuity is left for the 'employees' within the meaning of section 351, and thereunder becomes their sole property as against the employer, to be equitably distributed between them." (Old Heidelberg, supra, 219 Cal.App.3d at p. 1070.) The employer "claimed when a customer leaves a tip he or she leaves it not just for the waiter but for the busboy and the bartender. ... However, the employer submitted no evidence at the summary judgment hearing to support this contention about the intent of customers who leave tips. Indeed the only evidence which either side attempted to introduce was a declaration by the appellant's attorney. He testified to having conducted a poll of approximately 30 restaurant customers all of whom said that when they left a tip it was solely for the waiter or waitress who had served them and not for the busboy or other restaurant employees. This evidence was ruled inadmissible, and properly so." (Leighton, supra, 219 Cal.App.3d at p. 1082 (dis. opn.))
Nonetheless, "it was not appellant's burden to prove restaurant customers do not intend the tips they leave are to be divided among the waiter, the busboy and the bartender. Instead it was the employer's burden to prove they do intend that result. So the fact the appellant's evidence on this question is inadmissible does not constitute affirmative evidence on the opposite side of the issue.
Accordingly, this remains a triable issue." (Leighton, supra, 219 Cal.App.3d at p. 1083 (dis. opn.))
In short, Leighton affirmed a grant of summary judgment in favor of the defendant employer/movant, despite the absence of any evidence in the defendant's moving papers to support the employer's claim that the patron's intent, in leaving the gratuity, was to benefit not only the server but also other employees who provided direct table service to the patron.