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Thursday, January 31, 2013

Aber v. Comstock: Supervisor's Defamation Suit Against Employee Who Alleged Harassment Is Subject to Anti-SLAPP Motion to Strike

Just a quick note on this case, Aber v. Comstock (12/18/12, pub. 1/11/13) --- Cal.App.4th ---. Plaintiff Lisa Aber sued her employer and two of its employees based on an alleged sexual assault by the employees. One of the employee defendants, Michael Comstock, cross-complained against Aber, alleging claims for defamation and intentional infliction of emotional distress. Aber filed a special motion to strike the under the anti-SLAPP statute (Code Civ. Proc., § 425.16). The trial court granted the motion and dismissed the cross-complaint, and the Court of Appeal affirmed, holding: 
  1. The cross-complaint fell within the SLAPP statute because the assault allegations made to the police, the employer's HR department, and other third parties were "statements made in, or in connection with matters under review by, an official proceeding or body." Slip op. at 9-16. 
  2. Comstock failed to demonstrate a likelihood of success on the merits.  Slip op. at 16-25. 
The opinion is available here

Wednesday, January 30, 2013

Flores v. West Covina Auto Group: Court of Appeal Upholds Order Compelling Individual Arbitration in Putative Class Action Arising Out Of Used Car Purchase

This case reminds me of Caron v. Mercedes-Benz Financial Services USA LLC (7/30/12) 208 Cal.App.4th 26, review granted 10/24/12 (discussed here). In Caron, the Court of Appeal held that the FAA preempts the CLRA's prohibition of class action waivers. The Supreme Court granted review and held briefing pending its decision in Iskanian v. CLS Transportation L.A., LLC (6/4/12) 206 Cal.App.4th 949, review granted 9/19/12 (discussed here). 

In Flores v. West Covina Auto Group (1/11/13) --- Cal.App.4th ---, the Court of Appeal affirmed an order granting individual arbitration in an action alleging individual claims and putative class claims under the Consumer Legal Remedies Act (CLRA) (Civ. Code, § 1750 et seq.), the Automobile Sales Finance Act (ASFA) (Civ. Code, § 2981 et seq.), and the unfair competition law (UCL) (Bus. & Prof. Code, § 17200 et seq.). The Court of Appeal held: 

  1. The order was appealable under the death knell doctrine. Slip op. at 7-8. 
  2. The contract's class action waiver was valid because the FAA preempts the CLRA's prohibition on class action waivers . Slip op. at 8-15. 
  3. The defendant did not waive its right to demand arbitration by litigating in court for several months because it could not enforce its right to arbitrate until after Concepcion. Slip op. at 15-23. 
  4. Although the arbitration clause was somewhat procedurally unconscionable, it was not substantively unconscionable. Slip op. at 23-33. 
  5. The arbitration clause was not an unexpected term in a contract of adhesion. Slip op. at 33-34. 
  6. The arbitration clause was not unenforceable for lack of mutual consent. Slip op. at 34-35. 
I assume that the California Supreme Court will grant review and hold pending either Iskanian or Sanchez v. Valencia Holding Co., LLC (11/23/11) 201 Cal.App.4th 74, review granted 3/21/12 (discussed here), in which the Court of Appeal found that a similar arbitration clause was unenforceable as unconscionable.

The Flores opinion is available here.  

Tuesday, January 29, 2013

Monarrez v. Auto Club: Court of Appeal Reverses Finding that AAA Driver Was Independent Contractor

I recently attended an excellent program put on by Tony Oncidi and Andrew Friedman. They pointed out a case that I failed to note when it came down: Monarrez v. Automobile Club of Southern California (12/12/12) --- Cal.App.4th ---.

Monarrez is an old-fashioned third party liability case, not an employment case, but it will be of interest to those handling independent contractor issues. Monarrez suffered injuries while a AAA tow truck driver was loading Monarrez's car onto the tow truck. Monarrez sued the tow truck driver, the driver's admitted employer ("Hirad"), and AAA, alleging that the driver was an agent or employee of AAA.

The trial court granted summary judgment for AAA, finding that the parties' agreement defined Hirad as an independent contractor, AAA "had no control of the manner or means by which [Hirad] performed its emergency roadside service," and AAA's Training Manual merely provided "guidelines."

The Court of Appeal reversed. It disregarded the independent contractor agreement and focused instead on the parties' conduct. Slip op. at 9. Interestingly, the Court relied on employment law cases like S.G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, and Estrada v. FedEx Ground Package System, Inc. (2007) 154 Cal.App.4th 1. I would have thought that the Court would apply the common law test found in the older third party liability cases, rather than the expanded test found in cases like Borello


In any case, the Court found that the trial court erred in granting summary judgment. It found that AAA exercised "tight control" through its guidelines, "the work performed by the technicians is Auto Club's regular business," and a trier of fact could find that the driver was a AAA employee or agent. Slip op. at 13-17. 

The opinion is available here.

Monday, January 28, 2013

University of Texas Southwestern Medical Center v. Nassar: SCOTUS to Consider "But For" and "Mixed Motive" Causation in Title VII Retaliation Action


In Nassar v. University of Texas Southwestern Medical Center, 674 F.3d 448 (5th Cir., 2012) (available here), the Fifth Circuit Court of Appeals held that the plaintiff in a Title VII retaliation action need not prove that discriminatory animus was the sole cause of an adverse employment action, but could prevail on evidence that his race was "a motivating factor."  

The Supreme Court of the United States granted certiorari on January 18, 2013, sub nom University of Texas Southwestern Medical Center v. Nassar (Case No. 12-484).  The petitioner framed the issue as follows in its petition for review:  
Whether the retaliation provision of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a), and similarly worded statutes require a plaintiff to prove but-for causation (i.e., that an employer would not have taken an adverse employment action but for an improper motive), or instead require only proof that the employer had a mixed motive (i.e., that an improper motive was one of multiple reasons for the employment action).  
The Court has not yet set oral argument.  I assume it will hear Nassar in April.  The Supreme Court's web page for the case is here, and SCOTUSblog has a page here.  

Nassar of course brings to mind the pending California Supreme Court case of Harris v. City of Santa Monica.  Like Harris, I have added Nassar to our Watch List, and we (the State Bar of California Labor and Employment Law Section) will present a webinar on it within two weeks of the decision being issued.  

As always, stay tuned.  

Saturday, January 26, 2013

Morgan v. Wet Seal: Supreme Court Denies Review, Depublication in Expense Reimbursement Action

In Morgan v. Wet Seal, Inc. (10/12/12) (discussed here), the Court of Appeal affirmed denial of class certification in an expense reimbursement action. On Wednesday, the California Supreme Court denied review and depublication.  

Friday, January 25, 2013

Alamo v. Practice Management Info. Corp.: Supreme Court Grants Review and Holds Pending Harris v. City of Santa Monica

In Alamo v. Practice Management Information Corporation (9/24/12) (discussed here) the Court of Appeal held that the plaintiff in a pregnancy discrimination case need not prove "but for" causation, a "motivating factor" instruction was proper, and the "mixed motive" defense does not apply where the defendant denies that discrimination played any role in the alleged adverse employment action.

I guessed that the Supreme Court would grant review and hold pending its decision in Harris v. City of Santa Monica, and on January 23, it did just that.  Justice Baxter, who recused himself from Harris after his daughter was sued for pregnancy discrimination, did not take part in the decision, which otherwise was unanimous.  


Please remember that the State Bar of California, Labor and Employment Law Section will present a special "Watch List Webinar" on Harris within a week or two of the decision, which is due on March 4. Paul Cane, who argued as amicus for the defense, and David deRubertis, who argued for the plaintiff, have agreed to speak. Yours truly will moderate.

Stay tuned for more information.  


Thursday, January 24, 2013

Aryeh v. Canon Business Solutions Opinion Forthcoming

In Aryeh v. Canon Business Solutions (discussed here), the California Supreme Court will decide the following issues:  
  1. May the continuing violation doctrine, under which a defendant may be held liable for actions that take place outside the limitations period if those actions are sufficiently linked to unlawful conduct within the limitations period, be asserted in an action under the Unfair Competition Law (Bus. & Prof. Code section 17200 et seq.)? 
  2. May the continuous accrual doctrine, under which each violation of a periodic obligation or duty is deemed to give rise to a separate cause of action that accrues at the time of the individual wrong, be asserted in such an action? 
  3. May the delayed discovery rule, under which a cause of action does not accrue until a reasonable person in the plaintiff's position has actual or constructive knowledge of facts giving rise to a claim, be asserted in such an action? 
The Supreme Court yesterday announced that it will issue its decision on Thursday, January 24, 2013 at 10 a.m. Stayed tuned for further information, including information on the State Bar of California's Watch List Webinar on the decision.

Wednesday, January 23, 2013

Lawler v. Montblanc: Ninth Circuit Affirms Summary Judgment in Disability Discrimination Case

In Lawler v. Montblanc North America, LLC, ___ F.3d ___ (9th Cir. 1/11/13) , the plaintiff filed suit against her employer and its president and CEO for disability discrimination, retaliation, and harassment under the FEHA, as well as common law intentional infliction of emotional distress.  The district court granted summary judgment for the defendants, and the Ninth Circuit affirmed, holding: 

The plaintiff failed to establish a prima facie case of disability discrimination because she was not "competently performing her position," i.e., she could not perform the essential duties of her position,  with or without reasonable accommodation. Slip op. at 12-14. 
Rather, she admitted that her disability makes it impossible for her to fulfill the duties of her position and that she has been unemployed since October 2009, has not applied for any positions, has made no effort to secure employment, and has exhausted her disability benefits. 
Slip op. at 13. 

The plaintiff's inability to perform the essential functions of her position constituted a legitimate reason for her termination, and the plaintiff failed to provide "specific and substantial" evidence that this reason was pretextual.  Accordingly, the plaintiff's retaliation cause of action failed.  Slip op. at 14-16. 

A single incident of “gruff,” “abrupt,” and “intimidating” behavior by the employer's CEO was not "sufficiently severe to constitute a hostile working environment," and the harassment cause of action failed.  Slip op. at 16-18. 

Finally, the CEO's “gruff,” “abrupt,” and “intimidating” conduct could not be characterized as exceeding all bounds of that tolerated in a civilized community, nor was her alleged emotional distress "severe," and her cause of action for intentional infliction of emotional distress failed.  

Interestingly, the plaintiff apparently did not allege failure to engage in the interactive process. See, e.g., Wysinger v. Automobile Club of Southern California (2007) 157 Cal. App. 4th 413.  I won't try to guess how the district court or Ninth Circuit would have ruled on such a claim. 

The opinion is available here.

Tuesday, January 22, 2013

Justice Baxter Recuses Himself from Harris v. City of Santa Monica

According to an article at Law.com, California Supreme Court Justice Marvin Baxter has recused himself from Harris v. City of Santa Monica in the wake of a lawsuit filed against his daughter that could be affected by the Supreme Court ruling. 
Tuesday's order gave no reason for Baxter's recusal. But last week two San Francisco employment attorneys filed a pregnancy discrimination suit against [Baxter's daughter, Laura Baxter-Simons], an East Bay attorney, alleging she violated California's Fair Employment and Housing Act by terminating a pregnant housekeeper.  
If Baxter's recusal leaves the Court without a four-vote majority, the Court may have to appoint a pro tem justice and then re-hear oral argument, unless the parties waive it. I cannot guess whether that will be necessary. 

But based on my reading of the justices at oral argument, Harris is likely to be a close decision. Baxter asked only one question at oral argument. Assuming that he would have been a vote for the defense, his recusal will be a problem only if the vote would have been 4-3 for the defense, which would leave the Court now split evenly at 3-3. If the Court takes no action to appoint a pro tem in the next couple of weeks, that may indicate that the majority (or plurality) consists of a more broad coalition, or that the plaintiff already has four votes.  

The Court's opinion is due on March 4, 2013, unless the Court gives itself additional time, for example by ordering further briefing, as it did last year in Brinker v. Superior Court.  

Regardless, the State Bar of California will present a webinar on the result within a week or two of the decision. Both Paul Cane, who argued as amicus for the defense, and David deRubertis, who argued for the plaintiff, have agreed to speak. Stay tuned for more information.

Monday, January 21, 2013

Steven G. Pearl Named Super Lawyer in Dispute Resolution

I am very pleased to announce that I have been named to the California Super Lawyers list in Dispute Resolution and Labor and Employment Law for the third year in a row. Super Lawyers identifies the top attorneys in the state and includes no more than five percent of the state's attorneys on its list. 

Friday, January 18, 2013

California Supreme Court Denies Review and Depublication in Independent Contractor Arbitration Case

In Elijahjuan v. Superior Court (Mike Campbell & Associates, Ltd) (10/17/12) 210 Cal.App.4th 15 (discussed here), the Court of Appeal reversed an order compelling arbitration in a putative class action for wage and hour violations, alleging that the defendant misclassified the putative class members as independent contractors.  

The California Supreme Court on Wednesday denied review and depublication.  

Thursday, January 17, 2013

California Supreme Court Denies Review and Depublishes Tien v. Tenet Healthcare

In Tien v. Tenet Healthcare Corp. (2/16/11) 192 Cal.App.4th 1055 (discussed here) the trial court initially certified meal period, waiting time penalty, and check stub claims. After the Court of Appeal issued Brinker v. Superior Court (4/12/12) 53 Cal.4th 1004 (discussed here) and Brinkley v. Public Storage, Inc. (2008) 167 Cal.App.4th 1278, the trial court granted Tenet's motion for reconsideration and denied certification on all issues. The Court of Appeal affirmed, and the California Supreme Court added Tien to its list of Brinker grant-and-holds.

On remand following Brinker, the Court of Appeal affirmed its earlier decision. 
Tien v. Tenet Healthcare Corp. (10/4/12) (discussed here).   Yesterday, the California Supreme Court denied review and depublished.  

This is the third Brinker grant-and-hold, all from the Second District, Division Eight, that the Court has depublished.  It joins Lamps Plus Overtime Cases (8/20/12) (discussed here); and Hernandez v. Chipotle Mexican Grill, Inc. (8/21/12) (discussed here).  

The defendant has not yet filed its petition for review in Bradley v. Networkers International (12/12/12) --- Cal.App.4th --- (discussed here and here).  I'm sure that it will do so, and we'll keep an eye on it.  

Wednesday, January 16, 2013

Reminder -- Watch List Webinar Today at Noon: Ralphs v. UFCWU (Picketing Rights and the First Amendment)

The State Bar of California Labor and Employment Law Section presents our first webinar from The Watch List:


Ralphs Grocery Co. v. UFCWU Local 8:
Statutory Picketing Rights and the First Amendment

Wednesday, January 16, 2013 at 12 p.m. – 1:00 p.m. Pacific Time


1.0 Total Participatory MCLE Credits (No Ethics)

On December 27, the California Supreme Court in Ralphs Grocery Co. v. UFCWU Local 8 held that two statutory provisions – Code of Civil Procedure section 527.3 (the Moscone Act) and Labor Code section 1138.1 (section 1138.1) – protect a labor union’s right to picket on private property in front of a grocery store, even though that property does not constitute a public forum under the California Constitution’s liberty of speech provision. The Court further held that the Moscone Act and section 1138.1, which are components of a state statutory system for regulating labor relations and which are modeled on federal law do not run afoul of the federal constitutional prohibition on content discrimination in speech regulations. 

Speakers: 
Paul L. More (counsel for UFCWU, argued before Supreme Court) 
William J. Emanuel (counsel for amici Employers Group, et al.)
Moderator:   
Steven G. Pearl, ADR Services, Inc. 
Register here or go to www.calbar.org/online-cle and select a subject area.  All Watch List Webinars will be available in our on-line education catalog (listed in alphabetical order) soon after they are aired:http://calbar.inreachce.com. All Watch List Webinars will begin with the words: THE WATCH LIST. 

The Watch List is a series of webinars on the latest cases of interest to California employment attorneys. We will present the Watch List webinars as soon as possible after decisions are published, and our speakers frequently will be the attorneys who argued in the reviewing court. The Watch List webinars will bring you the most up-to-date information from the leading attorneys in California and the nation. 

Tuesday, January 15, 2013

Bradley v. Networkers International: Court of Appeal Modifies Opinion, Denies Rehearing

Another brief note on Bradley v. Networkers International (12/12/12) --- Cal.App.4th ---. On January 8, 2013, the Court of Appeal denied the employer's petition for rehearing and modified its opinion without changing the result. The Court deleted references to Lamps Plus Overtime Cases (2012) 209 Cal.App.4th 35, and Hernandez v. Chipotle Mexican Grill, Inc. (2012) 208 Cal.App.4th 1487, which have been depublished, and added a reference to the newly-decided Tien v. Tenet Healthcare Corp. (2012) 209 Cal.App.4th 1077.  

We'll have to wait and see what the Supreme Court does with Bradley and Tien.

The Court's order and modified opinion are available here.

Friday, January 11, 2013

Watch List Webinar -- Ralphs Grocery Co. v. UFCWU Local 8: Statutory Picketing Rights and the First Amendment


The State Bar of California Labor and Employment Law Section presents our first webinar from The Watch List:

Ralphs Grocery Co. v. UFCWU Local 8:
Statutory Picketing Rights and the First Amendment

Wednesday, January 16, 2013 at 12 p.m. – 1:00 p.m. Pacific Time


1.0 Total Participatory MCLE Credits (No Ethics)

On December 27, the California Supreme Court in Ralphs Grocery Co. v. UFCWU Local 8 held that two statutory provisions – Code of Civil Procedure section 527.3 (the Moscone Act) and Labor Code section 1138.1 (section 1138.1) – protect a labor union’s right to picket on private property in front of a grocery store, even though that property does not constitute a public forum under the California Constitution’s liberty of speech provision. The Court further held that the Moscone Act and section 1138.1, which are components of a state statutory system for regulating labor relations and which are modeled on federal law do not run afoul of the federal constitutional prohibition on content discrimination in speech regulations. 

Speakers: 
Paul L. More (counsel for UFCWU, argued before Supreme Court) 
William J. Emanuel (counsel for amici Employers Group, et al.)
Moderator:   
Steven G. Pearl, ADR Services, Inc. 
Register here or go to www.calbar.org/online-cle and select a subject area.  All Watch List Webinars will be available in our on-line education catalog (listed in alphabetical order) soon after they are aired: http://calbar.inreachce.com. All Watch List Webinars will begin with the words: THE WATCH LIST. 

The Watch List is a series of webinars on the latest cases of interest to California employment attorneys. We will present the Watch List webinars as soon as possible after decisions are published, and our speakers frequently will be the attorneys who argued in the reviewing court. The Watch List webinars will bring you the most up-to-date information from the leading attorneys in California and the nation. 


Thursday, January 10, 2013

Ventura v. ABM Industries: Court Affirms Plaintiff's Judgment on Ralph Act and Negligent Supervision Claims

In Ventura v. ABM Industries Incorporated (12/20/12) --- Cal.App.4th --- the plaintiff, a janitor, alleged that she was sexually harassed and intimidated by her supervisor. She sued for negligent supervision and hiring, and violation of the Ralph Act, Civil Code section 51.7, which guarantees "the right to be free from any violence, or intimidation by threat of violence, committed against their persons or property because of ..." specified characteristics, including their sex. [I was going to say "gender," but the statute says "sex."] 

The jury found for the plaintiff, finding that the supervisor threatened and committed violence against her and that the employer ratified his conduct. It also found that the employer negligently hired, supervised, and retained the supervisor. The employer appealed the judgment, and the Court of Appeal affirmed, holding: 
  1. Although the employer asserted in its answer a defense that the negligence cause of action was barred by workers compensation exclusivity, the employer never asked the trial court to rule on this issue and thus waived it. Slip op. at 8. 
  2. Substantial evidence supported the negligence verdict. Slip op. at 8-9. 
  3. Although the Unruh Act (Cal. Civ. Code section 51 et seq.) does not apply to employment cases, the Ralph Act is not part of the Unruh Act and it does apply to employment cases. Slip op. at 12. 
  4. Hatred is not an element of a Ralph Act cause of action, and a plaintiff need not prove that threats or acts of violence were motivated by hatred. Slip op. at 13-14. 
  5. The trial court did not err in instructing the jury that the plaintiff had to prove that her sex was "a motivating reason," for the conduct, rather than its "but for" cause. Slip op. at 14-15. 
  6. The trial court did not err in instructing the jury that to prove ratification, the plaintiff had to prove that the employer learned of and approved the supervisor's conduct after it occurred. Slip op. at 15-16. 
  7. The trial court did not err in awarding $550,000 in attorney fees, which was approximately one half of the plaintiff's calculated lodestar. Slip op. at 19-20. 
Justice Mosk wrote a strong dissent, arguing that Civil Code 51.7 should not apply under the facts alleged: 
The statute ... is intended to address violence engendered by a hatred or animus directed at a "characteristic" of race or sex and other protected classes of persons—not an act of violence or intimidation by threat of violence directed at a particular person who happens to be an African American or a woman or some other protected class member. In this case, there is no evidence that plaintiff's supervisor or other defendants hated or had an animus towards women in general. Indeed, the supervisor had apparently lusted after plaintiff—a woman. Even if some of his acts were committed in anger, the evidence is that it was a defendant‘s anger directed at one person for being spurned—not anger generated by a bias against or hatred of women.
Dissent at p. 10. The opinion is available here

Wednesday, January 9, 2013

Furtado v. State Personnel Board: Corrections Dept. Did Not Discriminate Against Officer Who Could Not Perform Essential Functions of Position after Injury

Furtado v. State Personnel Board (1/7/13) --- Cal.App.4th --- is another decision dealing with the essential functions of a police officer. See Lui v. City and County of San Francisco (2012) --- Cal.App.4th --- (discussed here); Cuiellette v. City of Los Angeles (2011) 194 Cal.App.4th 757.

Bruce Furtado worked for the California Department of Corrections and Rehabilitation as a correctional lieutenant. He was classified as a peace officer and was required to certify annually in the use of a baton. Furtado suffered permanent injuries in an auto accident that left him unable to use a baton. The Department concluded that he could not perform the duties of a correctional lieutenant, with or without accommodation, and medically demoted him to a non-peace officer position.

Furtado appealed to the State Personnel Board ("SPB"), contending that the Department had discriminated against him: (1) in denying him reasonable accommodation for his disability; and (2) in medically demoting him. After a hearing, the SPB denied the appeal, concluding that Furtado was not qualified for the correctional lieutenant position, and that the Department properly demoted him to a non-peace officer position.

Furtado then filed a petition for writ of mandate in the Superior Court, which was denied. Furtado appealed that ruling, and the Court of Appeal affirmed, finding: 
  1. Substantial evidence supported the PRB's conclusion that Furtado could not perform the essential functions of the correctional lieutenant position because: (a) he could not use a baton to defend himself and others or disarm, subdue, and apply restraints to an inmate (slip op. at 21-25); (b) being proficient with a baton is a reasonable requirement of the position (slip op. at 26-28); (c) no accommodation would allow Furtado to perform these essential functions (slip op. at 28-29). 
  2. Reassignment to an "administrative" correctional lieutenant position would not constitute accommodation, but would excuse Furtado from performing all of the essential functions of the position. Slip op. at 29-37.  "A correctional lieutenant must be able to perform the full range of duties, not just the ones to which they are typically assigned." Slip op. at 31. 
  3. Substantial evidence supported the PRB's conclusion that the medical demotion was proper because Furtado could not perform the essential functions of the correctional lieutenant position. Slip op. at 38-40. 
The opinion is available here

Tuesday, January 8, 2013

Standard Fire Insurance Co. v. Knowles: SCOTUS Hears CAFA Jurisdiction Matter

The Supreme Court yesterday heard oral argument in The Standard Fire Insurance Co. v. Knowles (Case No. 11-1450), which raises the following issue: 
Whether, after Smith v. Bayer [564 U.S. ---, 131 S.Ct. 2368 (2011), discussed here] when a named plaintiff attempts to defeat a defendant’s right of removal under the Class Action Fairness Act of 2005 by filing with a class action complaint a “stipulation” that attempts to limit the damages he “seeks” for the absent putative class members to less than the $5 million threshold for federal jurisdiction, and the defendant establishes that the actual amount in controversy, absent the “stipulation,” exceeds $5 million, the “stipulation” is binding on absent class members so as to destroy federal jurisdiction.
The Supreme Court's web site for Standard Fire is here. SCOTUSblog has an interesting article here -- written in advance of the argument. The oral argument transcript is here.  

The State Bar of California's Labor and Employment Law Section will present a webinar on Standard Fire within a week or two of the Supreme Court issuing its decision. Stay tuned here for more information.  

Monday, January 7, 2013

Bradley v. Networkers Int'l: On Remand After Brinker, Court of Appeal Reverses Order Denying Certification of Overtime, Meal Period, Rest Period, and Related Claims

I noted this case briefly a couple of weeks ago and promised more detail, so here it is:  

In Bradley v. Networkers International LLC (12/12/12) --- Cal.App.4th ---, the plaintiffs filed a putative class action for unpaid overtime, meal period, rest period, and related violations, alleging that the defendant improperly classified them as independent contractors and failed to pay overtime compensation, provide meal periods, or authorize and permit rest periods. The trial court denied their motion for class certification, and the Court of Appeal affirmed in an unpublished decision.

On remand after Brinker, the Court of Appeal reversed its prior position, holding that the trial court erred in refusing to certify the class with respect to each of plaintiffs' claims, except for the off-the-clock claims, which the Court remanded for reconsideration.

The Court first determined that common evidence would be used to determine whether the class members were independent contractors or employees, whether the trial court ultimately used the standards enunciated in S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341 or Martinez v. Combs (2010) 49 Cal.4th 35. The Court relied heavily on the fact that the defendant had “consistent companywide policies applicable to all employees regarding work scheduling, payments, and work requirements.” Without deciding the ultimate issue of employment status, the Court held that the evidence relied on by the parties “would be largely uniform throughout the class.”

Second, with regard to the plaintiffs’ meal and rest period claims, the Court noted that the defendant did not have meal or rest period policies in place during the class period and did not know whether the class members took meal or rest periods. “Under Brinker, plaintiffs' legal challenge to these uniform practices involve common factual and legal issues that are amenable to class treatment.” Accordingly, those claims should have been certified. 


Third, the Court held that overtime claims based on records showing unpaid overtime hours should have been certified. Questions regarding the amount of time worked by each class member would not predominate because the defendant’s time records showed unpaid overtime and it would be a simple matter to calculate the amount owed. 

Fourth, the Court held that the trial court did not abuse its discretion in refusing to certify off-the-clock claims because there was evidence to show that “the off-the-clock claims arose from individual actions of particular supervisors and the extent of the off-the-clock work varied substantially for each worker and for each job.” Regardless, the Court remanded these claims for reconsideration. 

Finally, the Court held that claims for (1) failure to furnish accurate wage statements; (2) failure to keep accurate payroll records; (3) waiting time penalties; and (4) unfair business practices should have been certified to the extent that they were based on the plaintiffs' overtime, meal period, and rest period claims.  

The opinion is available here

Muldrow v. Surrex: On Remand Following Brinker, Court of Appeal Again Affirms Judgment for Employer, and Supreme Court Denies Depublication Request

The California Supreme Court meets each week to act on cases and publishes its actions on its web site (here) on Thursday mornings. This week, the Court denied a request for depublication in Muldrow v. Surrex Corporation (8/29/12) 208 Cal. App. 4th 1381. I did not catch the Court of Appeal decision when it came down, so here it is:  

In Muldrow v. Surrex Solutions Corporation (1/24/12) 202 Cal.App.4th 1232 (discussed here), a recruiter sued his employer for failure to pay overtime and meal period compensation. The trial court certified the class and, after a bench trial, found: (1) the class members were subject to the commissioned employees exemption from the overtime requirements; (2) the employer provided meal periods to them, and (3) it was not obligated to ensure that they took their meal periods. The Court of Appeal affirmed, and the Supreme Court issued a grant-and-hold order pending Brinker.  On remand after Brinker, the Court of Appeal once again affirmed the judgment, holding: 
  1. Brinker had no impact on the Court's analysis of the overtime exemption for commissioned employees, and the trial court correctly held that the employees were subject to the exemption. 
  2. The trial court did not err “in ruling that [the employer] was not obligated to ensure that meal period[s] were taken." Citing Brinker, 53 Cal.4th at p. 1040. 
The opinion is available here

As I mentioned above, the California Supreme Court on January 3 denied a request for depublication filed by the Brinker plaintiffs. The Muldrow plaintiffs apparently did not file a petition for review. 

Friday, January 4, 2013

Chesbro v. Best Buy: Ninth Circuit Holds That Calls Were "Unsolicited Advertisements," Reverses Summary Judgment for Defendant in Privacy Class Action

As the legal landscape has changed, I'm seeing more cases involving allegations of invasion of privacy. See, e.g., Meyer v. Portfolio Recovery Associates, LLC (9th Cir. 10/12/12) (discussed here).  Chesbro v. Best Buy Stores, LLP, --- F.3d --- (9th Cir. 10/17/12, mod. 12/27/12), is another of these cases.  

The plaintiff bought a computer from Best Buy in 2008. He may or may not have signed up for Best Buy's Reward Zone Program (“RZP”) at the time. He received a number of computerized telephone calls at his home from Best Buy after he bought the computer. He filed suit, alleging that Best Buy violated Washington state law and the federal Telephone Consumer Protection Act of 1991 (“TCPA”). 47 U.S.C. § 227. 

The district court granted summary judgment in Best Buy’s favor, and the plaintiff appealed.  The Ninth Circuit reversed, holding that the calls were prohibited “unsolicited advertisements”: 
The robot-calls urged the listener  to “redeem” his Reward Zone points, directed him  to a  website where he could further engage with the RZP, and thanked him for “shopping at Best Buy.”  Redeeming Reward Zone points required going to a Best Buy store and making further purchases of Best Buy’s goods.  There was no other use for the  Reward Zone points.  Thus, the calls encouraged the listener to make future purchases at Best Buy.  Neither the statute nor the regulations require an explicit mention of a good, product, or service where the implication is clear from the context.  Any additional information provided in the calls does not inoculate them.  
Slip op. at 11.  

The opinion is available here.  

Thursday, January 3, 2013

Baltazar v. Forever 21: Right to Pursue Provisional Remedies in Court Does Not Make Arbitration Agreement Substantively Unconscionable

Here's an interesting addition to the case law on unconscionability of arbitration agreements.

In Baltazar v. Forever 21, Inc. (12/20/12), the plaintiff sued her former employer and three other employees for discrimination, harassment, and constructive discharge. The employer and two of the employees moved to compel arbitration. The plaintiff opposed, arguing that the agreement was unconscionable. The trial denied the motion, and the defendants appealed.
The Court of Appeal reversed, assuming without much discussion that unconscionability analysis survives Concepcion.  See Sanchez v. Valencia Holding Co., LLC (11/23/11) 201 Cal.App.4th 74, review granted 3/21/12 (discussed here).  The Court held:  
  1. The defendant had not offered evidence to show that the agreement evidenced "a transaction involving commerce" so as to fall under the Federal Arbitration Act ("FAA"). Slip op. at 5-8. The agreement was covered by the California Arbitration Act ("CAA") instead. Slip op. at 8. This actually helped the defendant on the substantive unconscionability analysis, below. 
  2. The agreement was procedurally unconscionable as a condition of employment. Slip op. at 12. 
  3. The agreement was not substantively unconscionable. Slip op. at 12-21.  It imposed a bilateral obligation to arbitrate, which was not impacted by the fact that it allowed either party to seek "any provisional remedy, including a temporary restraining order or preliminary injunction." 
[B]ecause the Agreement is subject to the CAA, not the FAA, [CCP] section 1281.8 would apply even if it were not expressly mentioned in the Agreement.  Put another way, an arbitration agreement governed by the CAA permits a party to seek provisional remedies, such as injunctive relief, in court regardless of whether section 1281.8 is mentioned in the agreement.  
Slip op. at 19; distinguishing Trivedi v. Curexo Technology Corp. (2010) 189 Cal.App.4th 387 (discussed here). 

The opinion is available here.  

Wednesday, January 2, 2013

Edgerly v. City of Oakland: Violations of Charter City's Municipal Law Do Not Support Labor Code Whistleblower Cause of Action

Just a brief note on this case: Edgerly v. City of Oakland (12/12/12, mod. 12/13/12) --- Cal.App.4th ---. The Court describes the case and its holding very concisely, so here it is (with a few edits):
Deborah Edgerly is the former city administrator of the City of Oakland. Edgerly sued the City in 2009, alleging that then-Mayor Ron Dellums wrongfully terminated Edgerly's employment in retaliation for her refusal to violate the City's charter, municipal code, and civil service rules and resolutions.  
Edgerly claims that the trial court erred when it sustained a demurrer to the first two of her three causes of action for violation of the statewide whistleblower statute set forth in Labor Code section 1102.5(c).  Edgerly also claims that the trial court erred when it dismissed the third whistleblower cause of action on a motion for summary adjudication.  
The primary question presented by this appeal is a question of first impression under California law: Should alleged violations of a charter city's municipal law be deemed violations of state law for purposes of section 1102.5(c)? Based on principles of statutory construction and public policy considerations, we hold that they should not, and accordingly, we affirm. 
The Court explained: 
Here, the plain language of section 1102.5 provides that it applies to "a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation." Based on the unambiguous statutory language, we presume that the Legislature meant what it said—section 1102.5 pertains, as relevant here, to state statutes, rules, or regulations.
The opinion is available here.