First, I Assumed We Had a Theory...

Esparza v. Safeway, Inc., No. B287927 (D2d4 as modified June 28, 2019)

Having bobbed and weaved their way to get their class certified, Plaintiffs in this wage and hour case have a problem. Their class cert arguments were based on the idea that they did not need to show how many meal breaks were missed by each class member, since that would be subject to individual proof. Instead, they put up a theory that there was a “market value” to a job without a meal break and that that value was captured by Employer and thus a legit target for restitution under the UCL. It’s a less obvious theory than “I missed 42 meal breaks,” but it is at least theoretically more capable of classwide proof.

That is, until it comes time to prove it. 

Garbage in Garbage out.

Olive v. Gen. Nutrition Cntrs. Inc., No. B279490 (D2d4 Nov. 4, 2018)

Plaintiff is a Model, suing a Client under Civil Code § 3344 for violating his right of publicity by allegedly unauthorized use of his likeness in Client’s advertising. Section 3344(a) permits a plaintiff to recover whatever profits are attributable to an unauthorized use. Plaintiff designated three different experts to testify on that topic, but the trial court granted motions in limine to exclude two of them because they offered “nearly data free and methodologically primitive” analyses.