Thursday, September 11, 2014

Aaaaaaaaaaaggggghhhhh Pizza Man!

Patterson v. Domino’s Pizza, No. S204543 (Cal. Aug. 28, 2103)

This 4-3 Cal. Supreme Court case ostensibly isn’t about procedure. It’s about whether an employee of a Domino’s Pizza franchise can be considered an employee of Domino’s itself for the purposes of FEHA. The majority (Justice Baxter) and dissent (Justice Werdegar) don’t much disagree about the law: a franchisor is an employer when it exercises control over “hiring, direction, supervision, discipline, discharge, and relevant day-to-day aspects of the workplace behavior of the franchisee‘s employees.” 


What they disagree about, however, is whether the evidence of control was sufficient that Domino’s was entitled to summary judgment. Effectively, the real debate is over the strength of the inferences that can be drawn in deciding whether there are disputes of material fact. That’s a very significant procedural question, and one on which we could benefit from more guidance. But the discussion in the opinion is not framed that way, so I expect that it will have minimal procedural significance outside of the employment/agency realm.

To be honest, mostly I only wrote this post because the case reminded me fondly of Old Skull, an early ‘90s gutter punk band made up of ten-year-olds, whose second most memorable lyric was a trenchant comment on quality of the defendant’s product. (For those who didn’t spend much of 1989 up late to watch 120 Minutes and PostModern MTV, “I hate you Ronald Reagan” comes first.)

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