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Tuesday, November 30, 2010

Coleman v. Estes Express Lines: Ninth Circuit Gives Guidelines for Discretionary Appeals of CAFA Issues

In Coleman v. Estes Express Lines, --- F.3d ----, 2010 WL 4925407 (9th Cir. November 30, 2010), the Ninth Circuit addressed an issue that seems to have grown in prominence over just the last month, as the Court has issued a number of Class Action Fairness Act (CAFA) remand cases.

The plaintiff filed a putative class action in state court, and the defendants removed. The district court remanded the case as a "local controversy," and defendant appealed. The Ninth Circuit used the case as an opportunity to articulate rules for determining when it is appropriate to hear a discretionary appeal under CAFA.

The Court adopted guidelines set forth by the First Circuit and adopted by the Tenth Circuit:
In Dental Surgeons, the First Circuit held that a key factor in determining whether to accept an appeal is “the presence of an important CAFA-related question” in the case. Coll. of Dental Surgeons, 585 F.3d at 38. Because discretion to hear appeals exists in part to develop a body of appellate law interpreting CAFA, “[t]he presence of a non-CAFA issue (even an important one) is generally not thought to be entitled to the same weight.” Id. If the CAFA-related question is unsettled, immediate appeal is more likely to be appropriate, particularly when the question “appears to be either incorrectly decided [by the court below] or at least fairly debatable.” Id.
The First Circuit also enumerated several case-specific factors, including the importance of the CAFA-related question to the case at hand and the likelihood that the question will “evade effective review if left for consideration only after final judgment.” Id. The appellate court should also consider whether the record is sufficiently developed and the order sufficiently final to permit “intelligent review.” Id. Finally, the First Circuit observed that the court should conduct the familiar inquiry into the balance of the harms. Id. at 39.
The First Circuit explained, and we agree, that whether to permit appeal under 28 U.S.C. § 1453(c)(1) is ultimately “committed to the informed discretion” of the appellate court. Id. The foregoing criteria are guides, not a series of bright-line rules.
Slip op. at 3. Having adopted these guidelines, the Court granted the application for leave to appeal:
Although the local controversy exception to CAFA jurisdiction is “narrow,” it is nonetheless an enumerated exception to a federal court's CAFA removal jurisdiction. It is intended to “identify ... a controversy that uniquely affects a particular locality” and to ensure that it is decided by a state rather than a federal court. See Evans v. Walter Indus., Inc., 449 F.3d 1159, 1163-64 (11th Cir.2006) (internal quotation marks and citation omitted). The question whether the district court must rely only on the pleadings or should look to extrinsic evidence will often determine whether a case will be remanded under the local controversy exception. This case thus raises an important issue of CAFA law. As the district court recognized, this is an unsettled question in this Circuit. We do not say that district court's decision “appears to be incorrectly decided,” but the array of courts on both sides of the question indicates that it is at least “fairly debatable” and that appellate review would be useful.
Ibid. The opinion is available here.

Rhoades v. Progressive Casualty: Ninth Circuit Reverses CAFA Remand

In an unpublished opinion, the Ninth Circuit Court of Appeals in Rhoades v. Progressive Casualty Ins. Co. (Case No. 10-17129, 9th Cir., November 23, 2010) reversed a district court order remanding a wage and hour class action to state court after the district court found that the defendant failed to carry its burden under the Class Action Fairness Act (CAFA) of showing that the amount in controversy exceeded $5 million. The Court held:
Under CAFA, as in other diversity cases, “the party asserting federal jurisdiction has the burden of showing the case meets the statutory requirements for the exercise of federal jurisdiction and therefore belongs in federal court.” Lewis v. Verizon Communications, Inc., __ F.3d ___, 2010 WL 4645465, 4 (9th Cir. 2010). However, “‘[o]nce the proponent of federal jurisdiction has explained plausibly how the stakes exceed $5 million, . . . then the case belongs in federal court unless it is legally impossible for the plaintiff to recover that much.’” Id. (quoting Spivey v. Vertrue, Inc., 528 F.3d 982, 986 (7th Cir. 2008). In assessing whether the defendant has established that the amount in controversy exceeds $5 million, “we expressly contemplate the district court's consideration of some evidentiary record.” Id.
Slip op. at 2. Without discussion, the Court held that the defendant met its burden, and the plaintiff failed to demonstrate that it was "legally impossible" for them to recover $5 million. Slip op. at 3.

Judge Ikuta dissented, noting that Progressive removed the case for a second time after the remand order at issue, the District Court remanded the case for a second time, and Progressive failed to appeal from the second removal order, making its appeal from the first removal order moot. Slip op. at 5-6.

Monday, November 29, 2010

Don't Believe the Hype: SCOTUS Delays Decision on Dukes

We reported last week that the Supreme Court of the United States had decided the fate of the Ninth Circuit's decision in Dukes v. Wal-Mart and would make its decision known this morning at 10:00 a.m. eastern. The Court may have made its decision, but it did not announce that decision this morning. This morning's "Order List" includes one case with the name "Dukes" and one with "Wal-Mart," but no case with both.

According to SCOTUSblog, the Court will consider Dukes at its December 3 conference, which means that it should announce its decision on the morning of December 6. Stay tuned.

Wednesday, November 24, 2010

Gordon v. City of Oakland: City May Require Police Officer to Repay Training Costs Under FLSA

In Gordon v. City of Oakland, --- F.3d ----, 2010 WL 4673695 (9th Cir. November 19, 2010), the Ninth Circuit Court of Appeals held that a city did not violate the minimum wage provisions of the Fair Labor Standards Act (FLSA) by requiring the plaintiff, a former police officer subject to a collective bargaining agreement, to repay a portion of her training costs when she voluntarily left the City's employment before completing five years of service. The Court quoted 29 C.F.R. § 535.31, which provides in pertinent part:
Whether in cash or other facilities, ‘wages' cannot be considered to have been paid by the employer and received by the employee unless they are paid finally and unconditionally or ‘free and clear.’ The wage requirements of the Act will not be met where the employee ‘kicks-back’ directly or indirectly to the employer or to another person for the employer's benefit the whole or part of the wage delivered to the employee. This is true whether the “kick-back” is made in cash or in other than cash.
It then held:
Because Gordon did not allege she was paid below the federal minimum wage for any given week, the only way Gordon has stated a cognizable claim is if her payment to the City for a portion of her training costs is a “kick-back” payment as described in section 535.31.
Slip op. at 3.

Finally, the Court held that the costs of training were similar to a loan to the plaintiff, not a kickback to the employer, and the City paid the plaintiff at least minimum wage for her final work week before deducting the training costs. Slip op. at 4.

The opinion is here.

Lewis v. Verizon: Ninth Circuit Eases Burden of Proof on CAFA Amount in Controversy Requirements

In Lewis v. Verizon Communications, Inc., --- F.3d ----, 2010 WL 4645465 (9th Cir. November 18, 2010), the Ninth Circuit eased the amount in controversy requirements of the Class Action Fairness Act (CAFA).

The plaintiff filed a class action in Superior Court, alleging that Verizon violated state law by billing telephone subscribers for products and services without their authorization. Verizon removed the case to district court, alleging that its total billings -- not just those alleged to be improper -- exceeded $5 million, exclusive of fees and interest. The court (Gutierrez, C.D.Cal.) granted the plaintiff's motion to remand, and Verizon requested permission to appeal, which the Ninth Circuit granted. Verizon contended on appeal that, "given the Plaintiff's refusal to limit the damages sought [to less then $5 million] and Verizon's showing that the total billings exceed $5 million, the total billings constitute the 'amount in controversy.'" The Ninth Circuit agreed.

The first place to look for the amount in controversy is in the complaint, and the complaint generally controls. Slip op. at 4. However, in the Ninth Circuit, "when the complaint does not contain any specific amount of damages sought, the party seeking removal under diversity bears the burden of showing, by a preponderance of the evidence, that the amount in controversy exceeds the statutory amount." Slip op. at 1.
In what may well be at root a semantic misunderstanding, the district court refused to accept the total billings as representing the amount in controversy. Instead, looking to the allegations of the complaint, it held that the total billings could not represent the amount in controversy because the complaint was claiming liability only for charges that were “unauthorized.” The district court thus assumed total billings would include both authorized and unauthorized charges and held that the Defendant had failed to meet its burden under our case law to show the amount in controversy, i.e., unauthorized charges, exceeded the jurisdictional amount.
There is no evidence or allegation to support this assumption, however. The Plaintiff has alleged that the putative class has been billed for unauthorized charges; the Defendant has put in evidence of the total billings and the Plaintiff has not attempted to demonstrate, or even argue, that the claimed damages are less than the total billed. Indeed, even though it was not apparent in the district court, before us the Defendant has conceded that where proposed class members have been billed for services they did not order, they are entitled to a refund. Hence, on this record, the entire amount of the billings is “in controversy.” The amount in controversy is simply an estimate of the total amount in dispute, not a prospective assessment of defendant's liability. To establish the jurisdictional amount, Verizon need not concede liability for the entire amount, which is what the district court was in essence demanding by effectively asking Verizon to admit that at least $5 million of the billings were “unauthorized” within the meaning of the complaint.
Slip op. at 4-5.

The opinion is here.

Parth v. Pomona Valley Hospital: FLSA Allows Employer to Change Regular Rate of Pay to Accommodate Alternative Workweek Schedule

In Parth v. Pomona Valley Hospital Medical Center, --- F.3d ----, 2010 WL 4643846 (9th Cir. November 18, 2010), the Ninth Circuit held:
When an employer changes its shift schedule to accommodate its employees' scheduling desires, the employer may reduce the employee pay rate to pay its employees the same wages they received under the former schedule, so long as the rate reduction was not designed to circumvent the provisions (including overtime) of the Fair Labor Standards Act (“FLSA”).
Slip op. at 1. Defendant hospital offered its nurse employees the option of working 8-hour or 12-hour days. Defendant paid those who worked 12-hour days a lower regular rate and daily overtime compensation, so that their weekly pay approximated the pay of those who worked 8-hour days.

In 2003, defendant's nurse employees unionized. The CBA incorporated defendant's shift pay differentials. In 2004, plaintiff filed a collective action, alleging that the shift differentials violated the FLSA. The Court (Morrow, C.D.Cal.) conditionally certified a class, then granted summary judgment in favor of the employer. The Ninth Circuit affirmed.
Parth argues that PVHMC violated the FLSA by creating a pay plan that pays nurses working 12-hour shifts a lower base hourly rate than nurses who work 8-hour shifts. In support of her argument, Parth contends that: (A) PVHMC cannot reduce the base pay for nurses working the 12-hour shift, (B) the 12-hour base pay rate is an “artifice” designed to avoid the FLSA's overtime and maximum hours requirements, and (C) PVHMC cannot justify the base hourly pay rate differences between the 8-hour and 12-hour shifts, because nurses working both shifts perform the same job duties.
Slip op. at 3. The Court disagreed. It held that FLSA does not prevent an employer from lowering its employees' regular rate of pay so that their weekly pay when they work an alternative workweek schedule -- including overtime compensation -- approximates their weekly pay when working a regular schedule. See, e.g., Walling v. A.H. Belo Corp., 316 U.S. 624, 628-30 (1942).

Next, the plaintiff argued that the the 12-hour shift pay plan was "essentially an artifice to avoid paying overtime." Again, the Court disagreed. It held:
First, the reduced rate was agreed to by the employees through the collective bargaining agreement, in which there appears no evidence of improper influence or inequality of bargaining position. The plan provides employees more scheduling flexibility, allows them to spend less time commuting to work (because they spend fewer days at work), and ensures that PVHMC does not retain an incentive to ask the nurses to work longer hours. Second, the rate has been in place since 1989 or 1990 (and applied to Parth since 1993). Third, the rate paid nurses working the 12-hour shift far exceeds the Act's minimum wage.
Slip op. at 7.

Finally, plaintiff argued that defendant's pay plan was unlawful "because nurses working both the 8-hour and 12-hour shifts perform the same work, but are paid at different rates." Slip op. at 8. Again, the Court disagreed.
We find no authority that suggests employees cannot be paid different rates for different shifts, and Parth fails to present any authority to the contrary. We do, however, find ample authority from other circuits that supports PVHMC's argument that workers working different shifts may be paid different rates. As the Supreme Court has noted, employers and employees are generally free to set the pay rates if minimum wages and overtime payments are paid when due.

The opinion is available here.

Pineda v. Bank of America: Cal. Supremes Clarify Waiting Time Penalty Issues

I expressed surprise when the California Supreme Court granted review in Pineda v. Bank of America to determine, among other things, whether Labor Code Section 203 waiting time penalties could be recovered in an action under the Unfair Competition Law (UCL). It seemed clear to me that such penalties were not subject to restitution under the UCL. The Court issued its decision last week, confirming this analysis. Pineda v. Bank of America (November 18, 2010) --- Cal.Rptr.3d ----, 2010 WL 4643834.

Maybe I should not have been so surprised that the Court decided to review the case. The other issue in Pineda is this:
Does a different statute of limitations apply when an employee seeks to recover only section 203 penalties (because, as in this case, final wages were paid-albeit belatedly-prior to the filing of the action), as opposed to when an employee seeks both final wages and penalties?
Slip op. at 1. This question was complicated by McCoy v. Superior Court (Kimco)(2007) 157 Cal.App.4th 225, which injected a fair amount of confusion into the pretty clear limitations language in Section 203:
Suit may be filed for these penalties at any time before the expiration of the statute of limitations on an action for the wages from which the penalties arise.
Fortunately, the Court cleared up this confusion by holding: "section 203(b) contains a single, three-year limitations period governing all actions for section 203 penalties irrespective of whether an employee's claim for penalties is accompanied by a claim for unpaid final wages." Slip op. at 5. The Court thus disapproved of McCoy.

I think the Court got it right on both counts. The opinion is available here.

Monday, November 22, 2010

Brookler v. Radioshack Corporation: California Supreme Court Grants Review and Holds Pending Brinker

In Brookler v. Radioshack (August 26, 2010) unpub. 2010 WL 3341816, the Court of Appeal reversed a trial court order denying class certification in a meal and rest period claim. The Court explained:
Citing Cicairos v. Summit Logistics, Inc. (2005) 133 Cal.App.4th 949 (Cicairos), the trial court granted the plaintiffs' motion for class certification of their claims against their employer for failure to provide meal periods as required under the Labor Code. The defendant employer's subsequent motion for decertification was also denied. However, in July 2008, the Fourth District filed its opinion in Brinker Restaurant v. Superior Court (2008) 165 Cal.App.4th 25 (Brinker), holding meal break claims were not amenable to class treatment because the employer need only make meal breaks available, not ensure they are taken. The employer filed another motion for decertification, arguing class certification was inappropriate under Brinker. This time, the trial court granted the motion for decertification. A week later, the California Supreme Court granted review in the Brinker case (review granted Oct. 22, 2008, S166350; see also Brinkley v. Public Storage, review granted Jan. 14, 2009, S168806), to address the proper interpretation of California's statutes and regulations applicable to an employer's duty to provide meal and rest breaks to hourly workers, and the matter is still pending.

Unless and until our Supreme Court holds otherwise, we agree with the analysis in Cicairos which held an employer's obligation under the Labor Code and related wage orders is to do more than simply permit meal breaks in theory; it must also provide them as a practical matter. Accordingly, we reverse.
Slip op. at 1.

On November 17, 2010, the California Supreme Court granted the employer's petition for writ of certiorari, pending Brinker. This increases the list of Brinker grant-and-holds to at least four: Brinkley v. Public Storage; Bradley v. Networkers Int'l LLC; Faulkinbury v. Boyd & Associates; and now Brookler. Brinker, Brinkley, Bradley, Brookler. I guess Faulkinbury is the odd man out.

I believe that the Court also will grant review in Hernandez v. Chipotle Mexican Grill, Inc. (October 28, 2010) --- Cal.App.4th ---, 2010 WL 4244583, even though it doesn't start with "Br."

When the Supremes will hear Brinker is another question entirely.

Dukes v. Wal-Mart: SCOTUS to Announce Certiorari Decision Next Monday

The Supreme Court of the United States will decide in a private session tomorrow whether to grant the petition for certiorari filed by Wal-Mart in Dukes v. Wal-Mart. SCOTUS will announce its decision next Monday, November 29, at 10:00 am. The Court's docket is here.

Friday, November 19, 2010

Kirby v. Immoos: Cal. Supreme Court Grants Review on Attorney Fee Issues

On July 27, 2010, the Court of Appeal affirmed an award of attorney fees to a defendant under Labor Code section 218.5. Kirby v. Immoos Fire Protection, Inc. (July 27, 2010) 113 Cal.Rptr.3d 370. See our blog post here.

Yesterday (while I was mediating a tough class action that we did get resolved), the California Supreme Court announced that it would review Kirby. The Court limited review to the following issues:
  1. Does Labor Code section 1194 apply to a cause of action alleging meal and rest period violations (Lab. Code 226.7) or may attorney's fees be awarded under Labor Code section 218.5?
  2. Is our analysis affected by whether the claims for meal and rest periods are brought alone or are accompanied by claims for minimum wage and overtime?

Very interesting questions with some complex arguments involved. The Court's case summary is here. I will add Kirby to our watch list.

Thursday, November 18, 2010

Dalton v. Lee Publications: 9th Circuit Denies Permission to Appeal Order Granting Class Certification

On Tuesday, a split panel of the Ninth Circuit Court of Appeals denied a defendant employer's petition for permission to appeal an order granting class certification. Dalton v. Lee Publications, Inc., --- F.3d ----, 2010 WL 4608799 (November 16, 2010). The plaintiffs deliver newspapers for San Diego's North County Times. They allege that the defendant illegally classifies them as independent contractors, rather than employees. District court judge Barry Ted Moskowitz (S.D. Cal.) certified the class in July. Dalton v. Lee Publications, Inc., --- F.R.D. ----, 2010 WL 2985130 (July 27, 2010).

Circuit Judge Diarmuid F. O'Scannlain dissented from the decision to deny permission to appeal, expressing concerns about the pressure to settle after class certification, the $18 million potential exposure in the case, and the fact that the defendant is "a member of the struggling newspaper industry."

Friday, November 12, 2010

Delodder v. Aerotek, Inc.: Ninth Circuit Allows Appeal from Order Denying Class Certification

The Ninth Circuit Court of Appeals on Monday took the relatively unusual step of allowing a party to appeal a district court order on class certification. Such appeals are discretionary under FRCP 23(f).

On August 16, 2010, the district court (Snyder, C.D. Cal.) denied the plaintiff's motion to certify a class of people employed by defendant Aerotek, Inc., as recruiters and recruiter trainers. The plaintiffs petitioned the Ninth Circuit for permission to appeal, and the Ninth Circuit agreed. Delodder v. Aerotek, Inc., No. 10-80178 (November 8, 2010).

Wednesday, November 10, 2010

AT&T Mobility v. Concepcion: Oral Argument Reviews

The Supreme Court of the United States yesterday heard oral argument in AT&T Mobility Services v. Concepcion, which many believe will have a substantial impact on future class action practice. SCOTUSblog has a review of coverage, as does The UCL Practitioner.

Tuesday, November 9, 2010

Conservatorship of Whitley: Cal. Supreme Court Clarifies CCP 1021.5 Private Attorney General Attorney Fees

In Conservatorship of Whitley (November 8, 2010) --- Cal.4th ---, the California Supreme Court has held that litigants who have personal, non-pecuniary motives to pursue litigation may recover private attorney general attorney fees under Code of Civil Procedure section 1021.5. The Court explained its holding as follows:

Under Code of Civil Procedure section 1021.5, a litigant who acts as a private attorney general and is a successful party in the litigation may under certain circumstances recover attorney fees from the opposing parties. One of the requirements that courts are directed to consider when determining eligibility for attorney fees is "the necessity and financial burden of private enforcement." As explained below, courts have long construed this language to mean, among other things, that a litigant who has a financial interest in the litigation may be disqualified from obtaining such fees when expected or realized financial gains offset litigation costs. What is less clear is whether nonfinancial, nonpecuniary personal interests in the litigation, such as vindicating the best interests of a child or sibling, can also serve to render a litigant ineligible for attorney fees, as some Courts of Appeal have held. That issue is squarely presented by this case.

We conclude that a litigant's personal nonpecuniary motives may not be used to disqualify that litigant from obtaining fees under Code of Civil Procedure section 1021.5. The contrary interpretation, which was adopted by the Court of Appeal in this case, has no basis in the language, legislative history, or evident purpose of section 1021.5. As discussed below, the purpose of section 1021.5 is not to compensate with attorney fees only those litigants who have altruistic or lofty motives, but rather all litigants and attorneys who step forward to engage in public interest litigation when there are insufficient financial incentives to justify the litigation in economic terms. Accordingly, we reverse the Court of Appeal's judgment and remand for proceedings consistent with this opinion.

Slip op. at 1-2. Had the Supreme Court ruled otherwise, defendants in most cases undoubtedly would have argued that the plaintiffs had - at the very least - nonfinancial, nonpecuniary personal interests that should prevent them from recovering section 1021.5 fees.

The opinion is available here.

Monday, November 8, 2010

AT&T Mobility v. Concepcion: SCOTUS Sets Oral Argument in Consumer Arbitration Dispute

On Tuesday, November 9, the Supreme Court of the United States will hear oral argument in AT&T Mobility, LLC v. Concepcion (No. 09-893). This case could decide the future of class action practice in the United States. The questions presented are:
Whether the Federal Arbitration Act preempts States from conditioning the enforcement of an arbitration agreement on the availability of particular procedures - here, class-wide arbitration - when those procedures are not necessary to ensure that the parties to the arbitration agreement are able to vindicate their claims.
Although I normally don't try to guess how appellate courts will rule, the question's phrasing seems to give a pretty clear indication of where the Court is headed with this one.

It also appears to open the door for lower courts to distinguish this case by finding that class-wide arbitration is necessary in other contexts. See, e.g., Gentry v. Superior Court (2007) 42 Cal.4th 443, discussed here.

Our post on the Ninth Circuit's decision in the underlying matter, Laster v. AT&T Mobility LLC, 584 F.3d 849 (9th Cir. October 27, 2009), is here. The Supreme Court's docket for Concepcion is here.

Thursday, November 4, 2010

Ahanchian v. Xenon Pictures: Ninth Circuit Reverses Summary Judgment Where Defense Refuses Reasonable Request for Additional Week

Ahanchian v. Xenon Pictures, 624 F.3d 1253 (9th Cir., November 03, 2010) is another example of the type of overly aggressive litigation tactics that we sometimes see.

This was a copyright infringement action regarding a film. The procedural history bears stating at some length:
Ahanchian filed a complaint on September 17, 2007 against Sam Maccarone (director and writer of the film), Preston Lacy (writer and actor), Xenon Pictures, Inc. (distributor), and CKrush, Inc. (producer) asserting causes of action for copyright infringement, breach of an implied contract, and unfair competition in violation of the Lanham Act. Apparently, Maccarone and Lacy were difficult to locate. Defense counsel for Xenon Pictures, who had been appointed by the district court to represent Maccarone and Lacy, sought additional time to answer Ahanchian's complaint on their behalf. Exhibiting the professional courtesy expected of officers of the court, Ahanchian's counsel stipulated to an extension of time-which stipulation the district court then rejected.
On January 7, 2008, the district court issued its scheduling order establishing, among other deadlines: November 18, 2008, as the date for the commencement of trial; September 2, 2008, as the discovery cut-off date; and September 15, 2008, as the last day for hearing motions. Maccarone and Lacy did not file their answer to the complaint until June 30, 2008. Because of Maccarone and Lacy's late entrance into the litigation, the parties entered into a joint stipulation on July 9, 2008, seeking to extend by twelve weeks all the deadlines established by the scheduling order to allow more time for discovery. The district court again denied the stipulated extension of time, finding that the parties had failed to demonstrate good cause as to why discovery could not be completed by September 2, 2008.
Because the district court's scheduling order set September 15, 2008, as the last day for hearing motions, the local rules in force at the time made August 25, 2008, the last date to file any motion for summary judgment. See C.D. Cal. Local R. 6-1 (2008) (requiring that any motion be filed within twenty-one days before the hearing date). Though there is no indication in the record that they did so, the defendants assert that they informed Ahanchian's counsel on August 6, 2008, that they would be filing a motion for summary judgment. On August 25, 2008, the last possible day for filing, the defendants moved for summary judgment seeking dismissal of all of Ahanchian's claims and for terminating sanctions resulting from a discovery dispute. These motions were accompanied by roughly 1,000 pages of supporting exhibits and declarations. Because the defendants chose to wait until the last day to file their motions, the local rules operated to set a deadline of September 2, 2008-the day after Labor Day-for Ahanchian to review these materials and to prepare and file his oppositions. Ahanchian, therefore, was left with a mere eight days, three over the Labor Day weekend, to draft his oppositions to the motions. See C.D. Cal. Local R. 7-9 (2008) (requiring any opposition to be filed no later than fourteen days before the hearing date); Fed.R.Civ.P. 6(a)(1)(C) (extending deadlines by an additional day where a deadline would otherwise fall on a holiday). Also, Ahanchian's lead counsel was scheduled to travel out of state on August 25 to fulfil a previously-scheduled
Given the already unreasonably strained deadlines, within which fell an out-of-state commitment and Labor Day weekend, on August 28, 2008, Ahanchian asked defense counsel to stipulate to a one-week continuance of the hearing date for defendants' motions, along with corresponding one-week extensions of the deadlines for Ahanchian to file oppositions and for defendants to reply. Defense counsel refused to so stipulate. The very next day, on August 29, 2008, Ahanchian filed an ex parte application pursuant to Local Rule 7-19 seeking a one-week extension. Ahanchian recited as good cause for the requested extension of time that: (1) defendants had waited until the last day to file their motions, choosing to file four days before the Labor Day weekend, and with knowledge of pending depositions; (2) the accompanying motions and exhibits amounted to 1,000 pages of materials; (3) Ahanchian's lead counsel had left the state on August 25 on a prescheduled trip and would not be returning until September 2; and (4) Ahanchian, who was needed to respond to the motion, was also out of town over Labor Day weekend. Ahanchian noted that “[n]o party will suffer any prejudice” should the court grant the continuance.
Defendants opposed the motion, arguing that Ahanchian had failed to demonstrate “good cause.” Specifically, they argued that Ahanchian's counsel “knew (or should have known) that the motions would be filed no later than August 25-and yet, for reasons unexplained, this is precisely the date plaintiff's counsel decided to travel ‘out of state.’ Why? No reason is offered.” In a footnote, the defendants posed some hypothetical possibilities: “A family emergency? A conflicting work-related priority? Or a vacation to Mexico? The point is, it is not explained. Absence [ sic ] explanation, good cause cannot be discerned.” As for prejudice, defendants made the weak and false arguments that the requested continuance would give Ahanchian “several weeks to prepare an Opposition,” and yet defendants would have only one week to file their reply. They also asserted that they would have “less time to prepare for
trial.” In point of fact, Ahanchian had requested extensions of time to file both his opposition and for the defendants' replies. Had Ahanchian's request been granted, defendants would have had the full time allowed by the local rules to reply. Moreover, the trial was not scheduled to commence for another three months.
Ahanchian ultimately filed his opposition to the summary judgment motion three days late, on September 5, 2008, at which time he also filed an ex parte application seeking permission to make the late filing. On September 8, 2008, defendants responded by reiterating their opposition to any extension of time, and urging the district court to “ignore” the late opposition. They further suggested that Ahanchian's counsel's representation that he believed the deadline was September 4 was disingenuous, and that Ahanchian had failed to adequately explain the technical computer problems that had resulted in the one-day delay.
On September 10, 2008, in a three-paragraph order, the district court granted defendants' summary judgment motion in full. It simultaneously denied Ahanchian's ex parte motion, concluding, without citing any record support, that Ahanchian, “apparently not pleased with the court's ruling,” had simply failed to file timely oppositions. The court construed Ahanchian's September 5, 2008, ex parte application as a Federal Rule of Civil Procedure 60(b) motion for reconsideration of its denial of Ahanchian's August 29, 2008, request for a one-week extension. The court then denied the motion, citing three authorities: (1) a Fifth Circuit decision concluding that the “inadvertent mistake” of counsel was not a sufficient ground to excuse missing a filing deadline; (2) a Sixth Circuit decision rejecting “calendaring errors” as justification for reconsideration; and (3), finally, an inapposite Ninth Circuit decision that suggests a party should sue its lawyer for malpractice rather than bring a Rule 60(b)(1) motion when it comes to regret an action based on erroneous legal advice.
Meanwhile, in its summary judgment order, the court correctly observed that Ninth Circuit precedent bars district courts from granting summary judgment simply because a party fails to file an opposition or violates a local rule, and also correctly cited its obligation to analyze the record to determine whether any disputed material fact was present. It then effectively flouted both legal principles, stating that it had reviewed only the defense evidence, even though it knew the opposition papers were already filed, having ruled upon the accompanying motion for a late filing. Unsurprisingly, based on only defendants' version of the facts, the court concluded that defendants were not liable on any claim and granted judgment in their favor.
624 F.3d at 1256-1258.

The Ninth Circuit reversed:
Procedure “is a means to an end, not an end in itself-the ‘handmaid rather than the mistress' of justice.” Charles E. Clark, History, Systems and Functions of Pleading, 11 Va. L.Rev. 517, 542 (1925). While district courts enjoy a wide latitude of discretion in case management, this discretion is circumscribed by the courts' overriding obligation to construe and administer the procedural rules so as “to secure the just, speedy, and inexpensive determination of every action and proceeding.” Fed.R.Civ.P. 1. These consolidated appeals arise from a district court's refusal to exercise discretion consistent with the dictates of Rule 1.
624 F.3d at 1254-1255.

The Court held that the district court abused its discretion, first by denying Ahanchian's motion for an extension of time, and then by denying his request that the Court accept his late-filed papers. The Court had very harsh words for defense counsel:
Perhaps contributing to the district court's errors and certainly compounding the harshness of its rulings, defense counsel disavowed any nod to professional courtesy, instead engaging in hardball tactics designed to avoid resolution of the merits of this case. We feel compelled to address defense counsel's unrelenting opposition to Ahanchian's counsel's reasonable requests. Our adversarial system depends on the principle that all sides to a dispute must be given the opportunity to fully advocate their views of the issues presented in a case. See Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir.2003); Iva Ikuko Toguri D'Aquino v. United States, 192 F.2d 338, 367 (9th Cir.1951). Here, defense counsel took knowing advantage of the constrained time to respond created by the local rules, the three-day federal holiday, and Ahanchian's lead counsel's prescheduled out-of-state obligation. Defense counsel steadfastly refused to stipulate to an extension of time, and when Ahanchian's counsel sought relief from the court, defense counsel filed fierce oppositions, even accusing Ahanchian's counsel of unethical conduct. Such uncompromising behavior is not only inconsistent with general principles of professional conduct, but also undermines the truth-seeking function of our adversarial system. See Cal. Attorney Guidelines of Civility & Professionalism § 1 (“The dignity, decorum and courtesy that have traditionally characterized the courts
and legal profession of civilized nations are not empty formalities. They are essential to an atmosphere that promotes justice and to an attorney's responsibility for the fair and impartial administration of justice.”); see also Marcangelo v. Boardwalk Regency, 47 F.3d 88, 90 (3d Cir.1995) (“We do not approve of the ‘hardball’ tactics unfortunately used by some law firms today. The extension of normal courtesies and exercise of civility expedite litigation and are of substantial benefit to the administration of justice.”).
Our adversarial system relies on attorneys to treat each other with a high degree of civility and respect. See Bateman, 231 F.3d at 1223 n. 2 (“[A]t the risk of sounding naive or nostalgic, we lament the decline of collegiality and fair-dealing in the legal profession today, and believe courts should do what they can to emphasize these values.”); Peterson v. BMI Refractories, 124 F.3d 1386, 1396 (11th Cir.1997) (“There is no better guide to professional courtesy than the golden rule: you should treat opposing counsel the way you yourself would like to be treated.”). Where, as here, there is no indication of bad faith, prejudice, or undue delay, attorneys should not oppose reasonable requests for extensions of time brought by their adversaries. See Cal. Attorney Guidelines of Civility & Prof. § 6.
Id. at 1262-1263.

At the risk of sounding naive or nostalgic, I also lament the decline of collegiality and fair-dealing in the legal profession today and believe all attorneys should emphasize these values in their daily practice. I hope that cases like Ahanchian will serve as reminders that we all suffer when we fail to treat each other with the respect and professional courtesy that we all deserve.

The opinion is available here.

Wednesday, November 3, 2010

Dilts v. Penske Logistics: District Court Certifies Off-the-Clock, Meal, and Rest Period Action

Thank you to Michael Singer for pointing out Dilts v. Penske Logistics, LLC, 267 F.R.D. 625 (April 26, 2010). The plaintiffs are truck drivers and installers who were assigned to engage in off-site delivery and installation of appliances. They allege that their employer, a logistics company, failed to pay for off-the-clock work, failed to provide meal and rest periods, failed to endmnify them for business expenses and losses, and failed to pay wages upon separation.

The district court (S.D. Cal., Janis L. Sammartino, J.) initially denied the plaintiffs' motion for class certification because of concerns with the class definitions. On plaintiffs' renewed motion, plaintiffs asked the court to certify one class and twelve subclasses, e.g., "Subclass One: All Class Members who had 30 minutes wages deducted every shift by Defendants' automatic meal period time deduction (Wage Deduction Subclass)." Id. at 631. Defendant conceded that these class definitions "would allow the Court to determine [class] membership through objective criteria." The court thus found that the class was adequately defined. Id. at 632.

The Court found that the Rule 23(a) factors were present and that common legal and factual issues predominated regarding plaintiffs' claims and that class treatment was superior to individual actions.

On plaintiffs' off-the-clock claim, which arose from defendants' policy of auto-deducting 30 minutes each day, whether the employee took a meal period or not, the court held:
After reviewing these arguments, the Court finds that common issues predominate with respect to this subclass. The ultimate underlying factual issue is the existence of the thirty minute auto-deduct. If class members were not paid for time they actually worked, then Defendant is liable. And there is no question that Defendant deducted thirty minutes per day regardless of whether a break was taken. Thus, the common issues predominate over the individual issues on the question of liability. As to measure of damages, that will require more individualized inquiry. However, individualized questions going to damages do not preclude a finding that common questions predominate. Blackie, 524 F.2d at 905 (“The amount of damages is invariably an individual question and does not defeat class action treatment.”).
Id. at 635. Regarding plaintiffs' meal and rest period claims, the court held:

Given the facts, the Court finds that Plaintiffs have demonstrated that common issues of law and fact predominate. The first issue to deal with is the employer's obligation with respect to meal periods under California law. The legal uncertainty about this issue has been a recent source of heartburn for courts. Although it is presently before the California Supreme Court in Brinker Restaurant v. Superior Court, until that decision has issued this Court must proceed as best it can.

As such, the Court finds that California meal break law requires an employer to affirmatively act to make a meal period available where the employee are relieved of all duty. See Cicairos v. Summit Logistics, Inc., 133 Cal.App.4th 949, 35 Cal.Rptr.3d 243, 252-53 (2006) (“[T]he defendant's obligation to provide the plaintiffs with an adequate meal period is not satisfied by assuming that the meal periods were taken, because employers have ‘an affirmative obligation to ensure that workers are actually relieved of all duty.’ ”); Brown v. Fed. Express Corp., 249 F.R.D. 580, 585 (C.D.Cal.2008) (“It is an employer's obligation to ensure that its employees are free from its control for thirty minutes.”). An illusory meal period, where the employer effectively prevents an employee from having an uninterrupted meal period, does not satisfy this requirement. Cicairos, 35 Cal.Rptr.3d at 252-53; Brown, 249 F.R.D. at 585. However, the employee is not required to use the provided meal period.

Thus, the question here is whether Defendant, by its policies, failed to provide meal breaks to the putative class members. Or, put another way, whether Defendant's policies effectively denied driver/installers and installers uninterrupted lunch periods. The majority of Plaintiff's evidence as to this question is anecdotal, consisting of the declarations of driver/installers and installers. Plaintiffs also offer some evidence from an employee of Defendant stating that dispatchers did not schedule lunches.


In weighing the common and individual issues, the Court finds that common issues predominate. These claims center around defendant's policies in terms of whether meal and rest breaks were available. Although drivers' circumstances varied, they were all ultimately controlled by the same set of central policies, including the delivery schedules and auto-deduct system. These issues are sufficient to find predominance.

Id. at 638-639.

Regarding plaintiffs' expense reimbursement (LC 2802) claims, the court held:
The Court finds that Plaintiffs have shown that common issues predominate. The putative class members were engaged in a common type of job and performed common tasks. Given this commonality of employment obligation, an expense which is “necessary” for a class member to do his job would also be “necessary” for any other class member. And although the measure of damages is a clearly individual issue, such issues do not preclude a finding that common questions predominate. Blackie, 524 F.2d at 905. Therefore, because the underlying legal issues and many of the factual determinations are common to all class members, the Court finds that common issues predominate with respect to the reimbursement subclasses.
Id. at 639-640. Regarding plaintiffs' "derivative" claims (LC 226, LC 203, and B&P 17200), the court held:
With respect to these three subclasses, the Court finds that common issues predominate. As both sides agree, if Plaintiffs' other claims can be tried on a class wide basis, these claims are also ripe for class adjudication. Given the numerous common issues detailed above, the Court finds that common questions predominate with respect to these subclasses.
Id. at 640.

Voters Approve Tani Cantil-Sakauye as Next California Supreme Court Chief Justice

California voters have approved Tani Cantil-Sakauye as the next chief justice of the Supreme Court of California. About two thirds of voters agreed to give Cantil-Sakauye a 12-year term on the Court. Voters also approved 12-year terms for justices Ming Chin and Carlos R. Moreno on similar margins. Cantil-Sakauye will take the oath of office on January 3, 2011.

No Overtime for Public Employees Absent CBA, Court of Appeal Holds

It's been a bad few weeks for California's correctional peace officers.

In California Correctional Peace Officers’ Association v. State of California (August 18, 2010, publ. September 17, 2010) 188 Cal.App.4th 646 ("CCPOA I"), the Court of Appeal held that Labor Code Sec. 512 and 226.7, which require employers to provide employees with meal periods or pay them for their missed peal periods, and Industrial Welfare Commission (IWC) Wage Order No. 17-2001, which sets wage and hour standards for "miscellaneous employees," do not apply to employees who work for public entities. Our post on CCPOA I is here.

In California Correctional Peace Officers’ Association v. State of California (October 29, 2010) --- Cal.App.4th ----, 2010 WL 4262046 ("CCPOA II"), the Court of Appeal held that, in the absence of a collective bargaining agreement, Government Code section 19851 does not mandate the payment of overtime compensation to correctional peace officers who work more than eight hours per day or 40 hours per week. Slip op. at 1.

For those who are interested in public employment issues, the opinion is available here.

Monday, November 1, 2010

McCaskey v. CSAA: Employer May Be Bound By Oral Promise of Relaxed Performance Standards for Older Employees

McCaskey v. California State Automobile Association (October 29, 2010) --- Cal.App.4th ----, 2010 WL 4261437, presents an unusual set of facts and holding. The Court described the case as follows:
Plaintiffs ... brought these actions against [defendants] charging breach of contract and age discrimination. The gist of the claims was that defendant brought about plaintiff's discharges by breaching a promise to permit senior sales agents to continue in their employ under relaxed sales quotas. The trial court entered summary judgment for defendants primarily on the grounds that they were contractually entitled to rescind the promise, and that plaintiffs failed to raise a triable issue of fact concerning defendants' claimed nondiscriminatory reasons for eliminating the policy. We find that the record raises a triable issue of fact on the contract claim over the question whether defendants honored the policy for an agreed time, or if no agreement as to time can be inferred from the terms and circumstances of the employment contract, for a reasonable time. The record also presents triable issues of fact concerning the genuineness of defendants' claimed reasons for eliminating the policy. Accordingly, we will reverse the judgment.
Slip op. at 1.

The opinion is available here.

Burke v. Ipsen: Court Affirms Judgment In Union Election Dispute

Burke v. Ipsen (October 29, 2010) --- Cal.App.4th ----, 2010 WL 4261474, covers ground that we normally don't cover here, but the discussion of private attorney general fees under Code of Civil Procedure 1021.5 caught my eye. This is an area that we deal with frequently in class and representative actions. Here's the background for the case, as described by the Court of Appeal:

A member of a union filed a petition for a writ of mandate in the trial court, seeking to compel the union to conduct an election of officers and directors and to set aside the union's recently amended bylaws. The petition alleged violations of the Corporations Code and the union‘s original bylaws.

The union opposed the petition on the ground that plaintiff had failed to exhaust administrative remedies by not presenting his claims to the local employee relations commission.

The trial court concluded plaintiff did not have to exhaust administrative remedies because his claims involved internal union affairs, which the employee relations commission did not have the authority to resolve. The court granted the petition and issued a writ of mandate directing that an election be conducted and declaring the amended bylaws invalid. In subsequent proceedings, the court awarded attorney fees to plaintiff under the private attorney general statute, Code of Civil Procedure section 1021.5. The union appealed.

We agree with the trial court that plaintiff did not have to exhaust administrative remedies because the court was the proper tribunal to enforce the Corporations Code and the union's original bylaws in a dispute involving internal union affairs. We also conclude that the trial court did not abuse its discretion in awarding attorney fees under a private attorney general theory.

Slip op. at 1. On the attorney fee issue, the Court held that:
In determining whether to award attorney fees under Code of Civil Procedure section 1021.5, a trial court ―must consider whether: (1) plaintiffs' action has resulted in the enforcement of an important right affecting the public interest, (2) a significant benefit, whether pecuniary or nonpecuniary has been conferred on the general public or a large class of persons and (3) the necessity and financial burden of private enforcement are such as to make the award appropriate. We conclude the trial court did not err in finding that all three factors were satisfied.
Slip op. at 23. The Court held that (1) the right of union members to insure that their unions maintain fair and reasonable election procedures is an important right that affects the public interest, (2) the judgment in favor of the union member would confer a significant benefit on more than 1,000 union members, and (3) it was appropriate to award attorney fees to the plaintiff, who had no greater stake in the litigation than any other union member. Slip op. at 23-24. The Court thus affirmed the order granting the plaintiff his fees.

The opinion is available here.