Mies v. Sephora USA, Inc., No. A139410 (D1d1 Feb. 26, 2015)
Assistant managers at makeup retailer Sephora—called “Specialists” in Sephora-ise—bring a class action alleging that they are misclassified as exempt from the wage and hour laws. The big issue is whether they spend more than half their time on nonexempt work. Problem for plaintiffs is that “Specialist” turns out to be a pretty broad category at Sephora. Some of them spend the bulk of their time dealing with customers on the sales floor (which is not exempt work). Others spend most of their time on management and training activities (which can be exempt).
The trial court quite reasonably determined that while there might be some simple common legal questions about what work was and was not exempt, the key issue in the case under the relevant legal standard—how did the class members actually spend their time at work—was “heavily individualized.” The court here holds that, under the circumstances, the trial court did not abuse its discretion because “[g]iven the evidence before it, the trial court here could reasonably view the likely disputes at trial as being less about how to classify certain tasks (such as selling) and the impact of company policies, and more about how individual Specialists spend their time.”
Affirmed.
Wednesday, March 25, 2015
Tuesday, March 24, 2015
With Adversaries Like this, Who Needs Client Conflicts?
Acacia Patent Acquisition, LLC v. Superior Court, No. G050226 (D4d3 Feb. 27, 2015)
This is a conflicts riddle much harder than anything on the MPRE.
This is a conflicts riddle much harder than anything on the MPRE.
Citing AAA Rules Held Sufficent to Let the Arbitrator Decide Class Arbitration Issue
Univ. Protection Serv. v. Superior Court, No. D066919 (D4d1, as amended Mar. 12, 2015)
As we’ve discussed, when it comes to deciding whether an arbitration can occur on class basis there is a division of authority (upon which review has been granted by the California Supreme Court) as to whether it is an issue for the court to decide. Although there is general agreement that the issue can be assigned to the arbitrator if the parties clearly express that intent. Going with the majority rule (that the court decides) the court here holds that the trial court erred in determining that the issue is by default for the arbitrator. But the parties agreement specifically invoked a set of AAA rules that clearly state that the arbitrator decides whether a class claim can be brought. That was enough, in the court’s opinion, to get out of the default rule. So even though the trial court got the rule wrong, the result was right.
Writ denied.
Update: Review granted June 10, 2015.
As we’ve discussed, when it comes to deciding whether an arbitration can occur on class basis there is a division of authority (upon which review has been granted by the California Supreme Court) as to whether it is an issue for the court to decide. Although there is general agreement that the issue can be assigned to the arbitrator if the parties clearly express that intent. Going with the majority rule (that the court decides) the court here holds that the trial court erred in determining that the issue is by default for the arbitrator. But the parties agreement specifically invoked a set of AAA rules that clearly state that the arbitrator decides whether a class claim can be brought. That was enough, in the court’s opinion, to get out of the default rule. So even though the trial court got the rule wrong, the result was right.
Writ denied.
Update: Review granted June 10, 2015.
Unconscionable Arb Provision Held Severable
Trabert v. Consumer Portfolio Servs., Inc., No D065556 (D4d1 Mar. 3, 2015)
This case involves a rather poorly drafted arbitration clause in a used car sales contract. In a prior appeal, the court had found that one discrete parts of the clause was unconscionable, but remanded to the trial court to decide whether they were severable. The trial court said no severance, but the court of appeal disagrees. Generally, the rule in California favors severance. Here, the problematic clauses—which dealt with the finality of an arbitral award—could be severed by removing the language that made certain awards non-final.
Reversed.
Update: Review granted, June 10, 2015.
This case involves a rather poorly drafted arbitration clause in a used car sales contract. In a prior appeal, the court had found that one discrete parts of the clause was unconscionable, but remanded to the trial court to decide whether they were severable. The trial court said no severance, but the court of appeal disagrees. Generally, the rule in California favors severance. Here, the problematic clauses—which dealt with the finality of an arbitral award—could be severed by removing the language that made certain awards non-final.
Reversed.
Update: Review granted, June 10, 2015.
Friday, March 20, 2015
On the Dangers of Finding a Cite and Calling It Quits
Rodriguez v. Brill, No. F068518 (D5 Feb. 20, 2015)
This case touches on what, to me, is one of the most significant questions of practical appellate jurisprudence: In issuing a reasoned decision, what is the court’s obligation to independently research issues that are presented by the parties, but not thoroughly briefed? (Or, for that matter, issues that appear to be thoroughly briefed, but aren’t.)
This case touches on what, to me, is one of the most significant questions of practical appellate jurisprudence: In issuing a reasoned decision, what is the court’s obligation to independently research issues that are presented by the parties, but not thoroughly briefed? (Or, for that matter, issues that appear to be thoroughly briefed, but aren’t.)
Wednesday, March 18, 2015
This Fight Doesn't Seem Over
Franco v. Arakellian Enters., No. B232583 (D2d1, as modified Mar. 11, 2015)
This is an employee class action where the plaintiff asserts claims under both the Labor Code Private Attorney General Act as well as other statutes. This is the Second District’s third shot in this case, which has been ping-ponging through the courts as the law regarding the arbitrability of certain claims kept changing. This time, the court gets the case on transfer from the California Supreme Court to reconsider in light of Iskanian v. CLS Transportation Los Angeles, LLC, 59 Cal. 4th 348 (2014), which held that PAGA claims are not arbitrable under arbitration clauses in an employment agreement because the claims actually belong to the state government, even if they are prosecuted by an employee on a quasi-qui tam basis.
Given cumulative effects of the U.S. Supreme Court’s decision in AT&T Mobility v. Concepcion, 563 U.S. ---, 131 S.Ct. 1740 (2011) and the state supreme court’s Iskanian ruling, the results are pretty clear: Plaintiff’s non-PAGA claims are arbitrable and subject to a class valid action waiver. Plaintiff’s PAGA claims are not arbitrable and the waiver of his right to bring representative PAGA actions is unenforceable, but severable from the otherwise valid arbitration provision. On remand, the trial court should stay the PAGA claims under Code of Civil Procedure 1281.4, pending resolution of the non-PAGA claims by arbitration.
Remanded with orders.
This is an employee class action where the plaintiff asserts claims under both the Labor Code Private Attorney General Act as well as other statutes. This is the Second District’s third shot in this case, which has been ping-ponging through the courts as the law regarding the arbitrability of certain claims kept changing. This time, the court gets the case on transfer from the California Supreme Court to reconsider in light of Iskanian v. CLS Transportation Los Angeles, LLC, 59 Cal. 4th 348 (2014), which held that PAGA claims are not arbitrable under arbitration clauses in an employment agreement because the claims actually belong to the state government, even if they are prosecuted by an employee on a quasi-qui tam basis.
Given cumulative effects of the U.S. Supreme Court’s decision in AT&T Mobility v. Concepcion, 563 U.S. ---, 131 S.Ct. 1740 (2011) and the state supreme court’s Iskanian ruling, the results are pretty clear: Plaintiff’s non-PAGA claims are arbitrable and subject to a class valid action waiver. Plaintiff’s PAGA claims are not arbitrable and the waiver of his right to bring representative PAGA actions is unenforceable, but severable from the otherwise valid arbitration provision. On remand, the trial court should stay the PAGA claims under Code of Civil Procedure 1281.4, pending resolution of the non-PAGA claims by arbitration.
Remanded with orders.
Bogus Crossclaims Can't Block Attachment
Lydig Const. v. Martinez Steel Corp., No. D066854 (D4d1 Feb. 26, 2015)
The case is a government contact construction dispute where a contractor alleges that its steel supplier didn’t get work done on time. The contractor moved for a pretrial writ of attachment. The supplier filed a cross-complaint which, if successful, would have completely offset the contractor’s damages. The supplier argued that the cross-claim precluded attachment, but the trial court disagreed and entered a writ for about $200k.
The court of appeal affirms. A writ of attachment can be issued when the plaintiff has a contractual claim for a readily ascertainable sum more than $500. Under Code of Civil Procedure § 483.010, the movant needs come forward with evidence establishing that: (1) that the claim is a proper claim for attachment; (2) the probably validity of the claim; (3) that the attachment is not sought for some ulterior purpose; and (4) that the amount to be secured is more than zero. On the fourth element, under § 483.015, the amount to be secured must be offset by any amount sought in a cross-complaint if that claim is one upon which an attachment could issue. The relevant precedents’ gloss on the statute requires the cross-claimant to come forward with at least prima facie evidence on the merits of its claims in order to get setoff credit.
Here, the supplier didn’t submit credible evidence showing the merit of its cross-claims, so it was not entitled to the setoff. The contractor, on the other hand, did establish the probable validity of its claims. So the writ properly issued.
Affirmed.
The case is a government contact construction dispute where a contractor alleges that its steel supplier didn’t get work done on time. The contractor moved for a pretrial writ of attachment. The supplier filed a cross-complaint which, if successful, would have completely offset the contractor’s damages. The supplier argued that the cross-claim precluded attachment, but the trial court disagreed and entered a writ for about $200k.
The court of appeal affirms. A writ of attachment can be issued when the plaintiff has a contractual claim for a readily ascertainable sum more than $500. Under Code of Civil Procedure § 483.010, the movant needs come forward with evidence establishing that: (1) that the claim is a proper claim for attachment; (2) the probably validity of the claim; (3) that the attachment is not sought for some ulterior purpose; and (4) that the amount to be secured is more than zero. On the fourth element, under § 483.015, the amount to be secured must be offset by any amount sought in a cross-complaint if that claim is one upon which an attachment could issue. The relevant precedents’ gloss on the statute requires the cross-claimant to come forward with at least prima facie evidence on the merits of its claims in order to get setoff credit.
Here, the supplier didn’t submit credible evidence showing the merit of its cross-claims, so it was not entitled to the setoff. The contractor, on the other hand, did establish the probable validity of its claims. So the writ properly issued.
Affirmed.
Thursday, March 5, 2015
The Real Stepsons of Tulare County
Grenier v. Taylor, No. F067263 (D5 Feb. 18, 2015)
A megachurch pastor’s stepson and another congregant started accusing the pastor and his wife of some pretty bad stuff on the Internet. Stuff like child molestation, tax evasion, dealing drugs, and stealing money from the church. Pastor and wife sued for defamation and intentional infliction of emotional distress. As one would expect, that was met with an anti-SLAPP motion, which was denied because plaintiffs established a likelihood of success.
Applying the two-step anti-SLAPP analysis, the court first holds that the Internet postings were protected activity as defined by Code of Civil Procedure § 425.16(e)(3), which addresses statements made in public fora on issues of public concern. As the court explains, public concern doesn’t need to be world-wide concern. As the large volume of anti-SLAPP litigation involving homeowners associations shows, public concerns can address an issue of significant concern to a discrete community. A mega-church with 500 to 1,000 members counts, and allegations of child abuse and stealing church funds would clearly be of community interest to the congregants.
But that doesn’t matter because the pastor and his wife made the requisite prima facie showing that their claims would succeed. The pastor wasn’t a public figure, so no proof of New York Times malice was required. Ministers aren’t automatic public figures, and the pastor here was, as the trial court remarked, “no Jerry Falwell, Jesse Jackson, or Louis Farrakhan.” Nor did he inject himself into the controversy over the Internet remarks in a way that made him a limited purpose public figure. So the elements of ordinary private defamation applied. And because plaintiffs met their burden of coming forward with evidence of these elements, as well as the elements of IIED, so the motion was properly denied.
Affirmed.
A megachurch pastor’s stepson and another congregant started accusing the pastor and his wife of some pretty bad stuff on the Internet. Stuff like child molestation, tax evasion, dealing drugs, and stealing money from the church. Pastor and wife sued for defamation and intentional infliction of emotional distress. As one would expect, that was met with an anti-SLAPP motion, which was denied because plaintiffs established a likelihood of success.
Applying the two-step anti-SLAPP analysis, the court first holds that the Internet postings were protected activity as defined by Code of Civil Procedure § 425.16(e)(3), which addresses statements made in public fora on issues of public concern. As the court explains, public concern doesn’t need to be world-wide concern. As the large volume of anti-SLAPP litigation involving homeowners associations shows, public concerns can address an issue of significant concern to a discrete community. A mega-church with 500 to 1,000 members counts, and allegations of child abuse and stealing church funds would clearly be of community interest to the congregants.
But that doesn’t matter because the pastor and his wife made the requisite prima facie showing that their claims would succeed. The pastor wasn’t a public figure, so no proof of New York Times malice was required. Ministers aren’t automatic public figures, and the pastor here was, as the trial court remarked, “no Jerry Falwell, Jesse Jackson, or Louis Farrakhan.” Nor did he inject himself into the controversy over the Internet remarks in a way that made him a limited purpose public figure. So the elements of ordinary private defamation applied. And because plaintiffs met their burden of coming forward with evidence of these elements, as well as the elements of IIED, so the motion was properly denied.
Affirmed.
Arbitration Is More Efficient, Except when It Isn't
Assoc. of L.A. Deputy Sheriffs v. Cnty. of L.A., No. B254982 (Feb. 17, 2015)
The union representing thousands of Deputy Sheriffs claims that they are being deprived of pay for so-called donning and doffing time under the terms of their collective bargaining agreement. The CBA requires members to grieve that kind of issue in an individual, not a class, arbitration. The union tried to sidestep that obligation by filing a case in superior court. When the county moved to compel, the union argued that Code of Civil Procedure § 1281.2(c) afforded the court discretion to stay the arbitrations pending a class-wide interpretation of certain terms of the MOU. The trial court agreed, but the court of appeal reverses.
Section 1281.2 lets the court stay an arbitration pending a decision on issues “not subject to arbitration,” which might moot the need to arbitrate. Because the interpretation of the CBA was clearly arbitrable, § 1281.2(c)’s “not subject to arbitration” rule couldn't apply.” So even if it would have been more efficient to for the court to globally decide the question, instead of having it decided 10,000 times in different arbitrations, that’s what the CBA and the law required.
Reversed.
The union representing thousands of Deputy Sheriffs claims that they are being deprived of pay for so-called donning and doffing time under the terms of their collective bargaining agreement. The CBA requires members to grieve that kind of issue in an individual, not a class, arbitration. The union tried to sidestep that obligation by filing a case in superior court. When the county moved to compel, the union argued that Code of Civil Procedure § 1281.2(c) afforded the court discretion to stay the arbitrations pending a class-wide interpretation of certain terms of the MOU. The trial court agreed, but the court of appeal reverses.
Section 1281.2 lets the court stay an arbitration pending a decision on issues “not subject to arbitration,” which might moot the need to arbitrate. Because the interpretation of the CBA was clearly arbitrable, § 1281.2(c)’s “not subject to arbitration” rule couldn't apply.” So even if it would have been more efficient to for the court to globally decide the question, instead of having it decided 10,000 times in different arbitrations, that’s what the CBA and the law required.
Reversed.
The Axis of Conveniens
Aghaian v. Minassian, No. B252326 (D2d8 Feb. 17, 2015)
This case reverses a trial court finding that the courts of Iran are a suitable alternative forum for the purposes of staying a case on forum nonconveniens grounds.
This case reverses a trial court finding that the courts of Iran are a suitable alternative forum for the purposes of staying a case on forum nonconveniens grounds.
Wednesday, March 4, 2015
I Didn't Demand Inauthentic Documents, Did You Produce Them?
Gerard v. Orange Coast Med. Ctr., No. G048039 (D4d3 Feb. 10, 2015)
This is a meal break class action involving hospital workers. The principal substantive issue is whether a wage order permitting an employee to waive one of the two meal breaks he or she is required to receive in working a twelve hour shift is void because it is contrary to the Labor Code. (It is.) But the court also addresses two minor procedural issues.
First, in reversing an order granting summary judgment, the court addresses one of defendant’s evidentiary objections. Defendant objected to the authenticity of wage statements that Defendant itself had produced in discovery. The documents were authenticated by a declaration from plaintiff’s attorney attesting that they were true and correct copies of records produced in discovery produced in response to his demands. Plaintiff himself also provided a declaration.
The court holds that party’s acting upon documents as authentic by producing them in response to inspection demands is evidence that “[t]he party against whom it is offered has at any time admitted its authenticity” and also that they “have been acted upon as authentic by the party against whom it is offered.” Evidence Code § 1414(a), (b). The case relied upon by defendants in arguing to the contrary—Claudio v. Regents of the Univ. of Cal., 134 Cal. App. 4th 224, 244 (2005)—involved an attorney’s declaration as to his own client’s documents, so § 1414 couldn’t apply. Moreover, in this case, plaintiff did also provide his own declaration attesting to the authenticity of the documents as his wage statements. Defendants were thus doubly wrong. And California lawyers now have a clean cite on the attorney authentication of opponent discovery point, which has rather doggedly evaded clear articulation in a published case.
Finally in reversing the denial of class cert, the court makes a point that should be self-evident : the certification decision is separate from the merits. So when the trial court refused to certify a class because the “proposed Representative Plaintiffs have failed to show that they have any claim against the Defendant,” it erred.
Reversed in relevant part.
Update: Review granted, May 28, 2015, albeit probably not on this issue.
This is a meal break class action involving hospital workers. The principal substantive issue is whether a wage order permitting an employee to waive one of the two meal breaks he or she is required to receive in working a twelve hour shift is void because it is contrary to the Labor Code. (It is.) But the court also addresses two minor procedural issues.
First, in reversing an order granting summary judgment, the court addresses one of defendant’s evidentiary objections. Defendant objected to the authenticity of wage statements that Defendant itself had produced in discovery. The documents were authenticated by a declaration from plaintiff’s attorney attesting that they were true and correct copies of records produced in discovery produced in response to his demands. Plaintiff himself also provided a declaration.
The court holds that party’s acting upon documents as authentic by producing them in response to inspection demands is evidence that “[t]he party against whom it is offered has at any time admitted its authenticity” and also that they “have been acted upon as authentic by the party against whom it is offered.” Evidence Code § 1414(a), (b). The case relied upon by defendants in arguing to the contrary—Claudio v. Regents of the Univ. of Cal., 134 Cal. App. 4th 224, 244 (2005)—involved an attorney’s declaration as to his own client’s documents, so § 1414 couldn’t apply. Moreover, in this case, plaintiff did also provide his own declaration attesting to the authenticity of the documents as his wage statements. Defendants were thus doubly wrong. And California lawyers now have a clean cite on the attorney authentication of opponent discovery point, which has rather doggedly evaded clear articulation in a published case.
Finally in reversing the denial of class cert, the court makes a point that should be self-evident : the certification decision is separate from the merits. So when the trial court refused to certify a class because the “proposed Representative Plaintiffs have failed to show that they have any claim against the Defendant,” it erred.
Reversed in relevant part.
Update: Review granted, May 28, 2015, albeit probably not on this issue.
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