Wednesday, August 26, 2015

Sonic III

Sanchez v. Valencia Holding Co., No. S199119 (Cal. Aug. 3, 2015)

This case is kind of a do-over of the second half of Sonic-Calabasas A, Inc. v. Moreno, 51 Cal. 4th 659 (2013) on the law of unconscionability as it applies to arbitration agreements. Justice Liu, joined by most of the court, thinks there are various articulable standards for substantive unconscionability, all of which more or less mean some kind of unilateralism or unfairness that goes well beyond just striking a bad deal. Justice Chin (no longer joined by Justice Baxter, who has since retired) thinks the court should settle on a “shocks the conscience” standard, which he believes to impose a higher burden than other formulations.

This time, however, the court gets to the merits. Everyone agrees that under whatever standards they might apply, the provisions at issue—various limits and exceptions to a contractual right to a de novo appeal to a three-arbitrator panel—aren’t unfair enough to render the agreement substantively unconscionable.


Clawback Principles Apply in PRA Petitions

Newark Unified School Dist. v. Superior Court, No. A142963 (D1d1 Jul. 31, 2015)

In an opinion that dives deep on legislative history issues outside the scope of our coverage, the court of appeal holds that clawback principles applicable to ordinary civil cases apply to privileged documents that are inadvertently produced in response to requests under the Public Records Act.

Tuesday, August 25, 2015

Grant, Grant Not, Reverse, Reverse Not, Depub, Repub, But Is There Amend?

Rodriguez v. RWA Packing Co., No. S214150 (Cal. Jul. 29, 2015).

This is a Supreme Court order releasing a case from a grant-and-hold pending its decision on a case addressing related issues. Having decided the related case consistently with the court of appeal’s decision here, the Court orders the case republished, but amends a footnote to delete a reference that the related case is currently under review. I suppose that clarifies things. But does the Supreme Court have the authority to just order the amendment of an opinion on repub? Don’t think that’s in the rules. Inherent authority? And how is Westlaw going to handle the keycite?

Monday, August 24, 2015

So Much for Gatekeeping . . .

Green v. City of Riverside, No. D067424 (D4d1 Jul. 29, 2015)

This case arises from the kind of unfortunate interaction between the cops and the mentally ill that seems to happen every day nowadays. An obviously unstable guy is found dancing in the sprinklers at a church in Hemet, wearing only his underwear and saying crazy stuff. Someone calls 911. Cops show. Things escalate. There’s a confrontation. Tasing ensues. Three times. An asphyxiation-friendly move gets used to put the cuffs on. The guy winds up brain dead. And then fully dead. The coroner pins it on a “bad heart.” And a trial before a Riverside jury results in a defense verdict.

Friday, August 14, 2015

Mind Those Pro Hacs

 Golba v. Dick's Sporting Goods, Inc., No G049611 (D4d3 Jul. 24, 2015)

This case is a consumer class action against a retailer for collecting zip codes. It eventually settled for a crappy coupon settlement. The laboring oar of the plaintiff work had been performed by an out-of-state attorney from Chicago. The local counsel who signed the complaint filed a pro hac vice motion—including a declaration that the Chicago attorney hadn’t been admitted pro hac in California in the last two years. But he failed to pay the required fee and inform the state bar, so the motion was denied. Unfortunately, nobody checked on the status of the motion, and plaintiffs proceeded as if the application were granted.

Tick, Tick, Tick . . .

Rutledge v. Hewlett-Packard Co., No H036790 (D6 July 22, 2015)

This case presents a grab bag of arguments on an appeal of a trial court’s granting of summary adjudication in a ten-year-old class action involving allegedly defective computer parts. Of procedural interest are a pair of issues about class certification and two issues related to discovery sanctions. In particular, one of the sanctions orders highlights a potential trap involving motions to compel productions of documents under third-party subpoenas.

Let’s focus on the interesting* issue first.

Thursday, August 13, 2015

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 seBrinker 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.