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. 

Iskanian Applies Only to the Man's Bread

Esparza v. KS Indus., LP, No. F072597 (D5 Aug. 2, 2017)

In the Iskanian case, the California Supreme Court held that claims brought under the Labor Code Private Attorney General Act are not arbitrable because, although they are litigated by private parties, the relief sought in them—civil penalties—belongs to the state, which never agreed to arbitrate. That includes PAGA “representative actions,” where an employee can seek penalties arising from her employer’s violations involving other employees. Given the US Supreme Court’s upholding of arbitration clause class action waivers in the Concepcion case, Iskanian has had the effect of pushing a lot of formerly class action employment litigation into the PAGA realm. 

In Honor of Francis Walsh

Esparza v. Kaweah DeEsparza v. Kaweah Delta Dist. Hosp., No. F071761 (D5 Sept. 21, 2016)

When he wasn’t randomly digressing on the Warsaw Convention, my torts professor managed to say in pretty much every class—to the blank stares of 120 baffled 1Ls—“DON’T FORGET YOUR CODE CLAIM!”  He must have sued the government a lot or something.