No Jury for PAGA

LaFace v. Ralphs Grocery Co., No. B305494 (D2d4 Feb. 18, 2022)

The key issue in this case is whether the right to jury trial under Article I, section 16 of the state constitution attaches to an action brought under the Labor Code Private Attorney General Act, aka PAGA. Until relatively recently, many aficionados of California procedure, including me, would probably have said yes. A PAGA case, after all, is seeking the recovery of civil penalties, and both older state cases interpreting Article I, section 16, and federal cases interpreting the Seventh Amendment, suggest that an action whose purpose is to penalize arises in law, not equity, and thus carries a jury right.

But then the California Supreme Court decided in Nationwide Biweekly Administration, Inc. v. Superior Court, 9 Cal. 5th 279 (2020), that an action brought by the government seeking civil penalties under the Unfair Competition Law and False Advertising Law, did not provide for a right to jury trial.* Generally, Nationwide Biweekly took some of the focus off of the remedy sought and looked more closely to purpose and structure of the relevant statute to address the law/equity distinction. 

So here, the Court of Appeal says that PAGA is basically a vehicle for a private plaintiff to bring an action that would ordinarily be sought by the Labor Workforce Development Agency before a Labor Commissioner—an administrative proceeding for which there would be no jury right. The fact that the Legislature deputized private plaintiffs to bring such claims in superior court did not fundamentally alter the character of the action as essentially administrative. Moreover, as with the UCL in Nationwide Biweekly, in assessing penalties, the trier of fact in a PAGA case is required to make a discretionary multi-factor analysis to calibrate an appropriate penalty to the facts of the case. That, according to the court, is the type of equitable consideration more appropriately reserved for a court instead of a jury.

Affirmed.

*Failing to get around to writing up the the Supreme Court’s April 30, 2020 decision in Nationwide Biweekly was one of my more notable COVID-era whiffs. What can I say? There was a lot going on at the time...

FWIW, my random GenX music references seem to have been in decline over the last few years. Here’s a great one.

 

 

Your Secrets Are Safer if Your Therapist is a PhD, Not an MD

Cross v. Superior Court, No. B277600 (D2d5 May 1, 2017)

A psychiatrist is under investigation for over-prescribing Adderall. After reviewing her prescription records, a Board of Medical examiners subpoenaed the doctor for the medical records of three patients to whom it appear that over-prescriptions occurred. The psychiatrist—claiming that she couldn’t get consent from the patients—refused to comply with the subpoenas on grounds of the physician-patient and psychotherapist-patient privileges as well as the right to medical privacy. The trial court overruled the objections and order the records produced. The doc took a writ.

Not Quite Ex Parte McCardle . . .

Gerwan Farming v. Agric. Labor Relations Board, No. F069896 (D5 May 9, 2016)

Interesting case that deals with when the Legislature can bypass the superior courts and provide for a direct review by an appellate court of an administrative decision. 

Manufacturing Consent

Michaels v. Turk, No. E060854 (D4d2 Aug. 31, 2015)

I once had a pro bono case in LA County mental health court where we were trying to get our client released from a county-imposed conservatorship. We won. It took less than half an hour hanging in that Glassell Park courtroom to recognize that the joint suffers from a severe breakdown of a functioning adversarial process. Most of the putative conservatees are represented by public defenders who don’t actually much try to win. Presumably, they believe in good faith they are acting in their clients “actual” best interests—as opposed to their stated ones—by letting them stay wards of the county. In the twenty or so hours I spent sitting around waiting to be called for various matters, I probably watched more than fifty hearings. In all the time I was there, my guy was the only one to leave through the front door.