Use of Texts on Expert Cross

Paige v. Safeway, Inc., No. A159731 (D1d3 Feb. 10, 2022)

Plaintiff slipped and fell in a rainy Safeway parking lot. She contends that Safeway and its contractors used the wrong kind of paint on the lot’s crosswalks—too slippery. Safeway puts up an expert who testifies that the paint was up to snuff. At his depo, the expert admits that industry standards promulgated by an outfit called ATSM are reliable, albeit not mandatory, sources of authority on transportation design. But at trial, the court granted an in limine precluding Plaintiff from crossing the expert on the ATSM standard because the expert didn’t consider or rely upon the standard in formulating his opinion. The court believed letting the standard come in on cross was an effort to smuggle improper opinion evidence into the record.

That was error. Under Evidence Code § 721(b), cross of experts using a text or publication in the relevant field is limited to three circumstances: (1) the expert referred, considered or relied upon it; (2) it was been admitted into evidence; or (3) it has been established as “a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice.” If admitted, parts of the publication can be read into the record, but the text itself does not come in as an exhibit. So here, since the expert himself admitted the standard was a reliable authority during his deposition, there was foundation to permit cross under (3).

But although that was error, it was harmless. Crucially, Plaintiff did not put up an expert of her own. And she did not come forward with any evidence that the ATSM standard was, essentially, a mandatory standard of care. So given all the evidence presented by Safeway—including the testimony of its expert and various of its contractor’s employees with significant parking lot painting experience—the Court of Appeal declines to find that, even had the cross been permitted, there would have been a reasonable probability that a different result would have been reached.

Affirmed.

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. 

Break Time ...

Safeway v. Superior Court, No. B255216 (D2d4 Jul. 22, 2015)

This is yet another class cert decision that turns on the Supreme Court’s 2012 decision in Brinker Restaurant Corp. v. Superior Court, 53 Cal. 4th 1004 (2012). The class is huge—like 200,000 grocery employees over five-and-a-half years. The theory is that Safeway had a consistent practice of not paying the premium wages required under Labor Code § 226.7 “when required,” i.e., whenever it caused the employee to miss a meal break. It’s pretty clear that the top-level theory is certifiable. If a company has a policy of not doing something it’s required to do under wage and hour law, that usually falls within the Brinker standard. The real point of contention is that a premium wage is only owed if the employee doesn’t actually get her break.

Does that mean that, in the absence of a policy not to allow breaks—no one contends that existed—the court will need to do an employee-by-employee assessment of whether breaks were missed? The court of appeal says no. All that has to be shown is a significantly common injury that is subject to class-wide proof. Here, a sampling of Defendants’ payroll records showed that it never paid premium wages under § 226.7, and that there were numerous instances where meal breaks were not clocked during shifts of five or more hours. (Indeed, plaintiffs’ expert said there were potentially tens of millions of them, based on statistical extrapolation.) Although that wouldn’t make Defendant liable per se—Brinker settled the point that an employer isn’t be liable if a meal break is offered but not taken—the records warrant a rebuttable presumption that the breaks were unlawfully withheld. Given that these points are subject to class wide-proof, the court holds that the trial court did not err in certifying a class.

Affirmed.