Friday, August 19, 2016

Speak Up, Or Lose Your Appeal

Morales v. 22d Dist. Agric. Assoc., No. D067247 (D4d1 Jul. 13, 2016)

This is an FLSA opt-in collective action largely beyond the scope of this blog. There are, however, two interesting procedural questions on appeal.

The first concerns the verdict form. But to preserve objections Plaintiffs needed to actually raise their objections in the trial court. Just submitting a form that gets rejected isn’t enough. They needed to make particular objections on the record to the form that gets used. Here, when the court proposed its own form, Plaintiffs said they had no objection. Nor, even after an adverse verdict, did they re-raise the issue in a new trial motion. Under the circumstances, they forfeited their right to dispute the jury form on appeal.

There’s also an issue of witness exclusion under Evidence Code § 777. Question is: Does § 777 apply to absent class members? But the court doesn’t reach that issue either, because it finds that Plaintiffs’ counsel failed to make any record why it was inappropriate to exclude any particular witness. Moreover, there was no evidence that the exclusion had any detrimental impact on Plaintiff’s case. Since it is Plaintiff who is appealing here, not some witness with a claim of being denied public access, the absence of prejudice dooms the appeal. 

Affirmed in relevant part.

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