Posts Tagged ‘California’
American Arbitration Association, California, Casino, Charles L. Thompson, Dennis M. Perluss, Dispute resolution, Employment Contract, Gambling
In Arbitrability, Arbitration, Delegation of Arbitrability Decision on February 17, 2012 at 6:53 am
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In an unpublished opinion, the Second District Court of Appeal held that an arbitration clause that states that “[a]ny dispute whatsoever arising out of or referable to this Agreement, . . . as to the arbitrator’s jurisdiction, or as to the ability to arbitrate any such dispute, shall be submitted to final and binding arbitration” manifested a clear and unmistakable intent to delegate the arbitrability decision to the arbitrator. Gallo v. Youbet.com, Inc., 2012 WL 470426, No. B230274 (Feb. 14, 2012).
Background
Plaintiff Gallo is an attorney a former General Counsel of defendant Youbet.com, Inc. Id. He signed an employment agreement, which included the following arbitration clause:
Any dispute whatsoever arising out of or referable to this Agreement, including, without limitation, any dispute as to the rights and entitlements and performance of the parties under this Agreement or concerning the termination of Executive’s employment or of this Agreement or its construction or its validity or enforcement, or as to the arbitrator’s jurisdiction, or as to the ability to arbitrate any such dispute, shall be submitted to final and binding arbitration in Los Angeles, California, by and pursuant to the Labor Arbitration Rules of the American Arbitration Association with discovery proceedings pursuant to Section 1283.05 of the California Code of Civil Procedure. The arbitrator shall be entitled to award any relief, which might be available at law or in equity, including that of a provisional, permanent or injunctive nature. The prevailing party in such arbitration as determined by the arbitrator, or in any proceedings in respect thereof as determined by the person presiding, shall be entitled to receive its or his reasonable attorneys’ fees incurred in connection therewith.
Id.
Defendant moved to compel arbitration, and the trial court granted the motion except for two causes of action for alleged violation of FEHA. Id. The trial court did not issue a written rationale for its ruling or orally explain its rationale at the hearing. Id.
Discussion
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California, California Labor Code, Class action, Employment, Lawsuit, Litigation, Minimum Wage, Overtime
In Arbitration, Waiver on February 17, 2012 at 6:34 am
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In an unpublished decision, the First District Court of Appeal affirmed the trial court’s denial of a motion to compel arbitration in a wage and hour class action, where defendants conducted voluminous discovery and filed and fully litigating two motions to compel further responses to discovery, a motion for sanctions and a motion for a protective order. Partridge, et al. v. Hott Wings, Inc., et al., No. A130266, 2012 WL 470458 (Feb. 14, 2012).
Discussion
The Court found that Defendants’ delay in filing their petition to compel arbitration “connotes an intent not to arbitrate”. Id. Defendants conducted substantial discovery:
Between March 2010 and the October 2010 hearing on defendants’ motion to compel arbitration, defendants engaged in voluminous written discovery to which plaintiffs responded. In addition, defendants deposed numerous plaintiffs and third party witnesses. Although plaintiffs had begun deposing witnesses, they had not yet obtained basic documents from defendants through discovery. The discovery focused on the liability of individual defendants and the franchise defendants that employ plaintiffs. As a result of defendants’ discovery requests, plaintiffs provided information regarding plaintiffs’ estimated damages, which defendants were responsible for which violations, and the liability of the individual as well as the franchise defendants. A reasonable inference is that the information gained from defendants’ discovery goes to significant issues in plaintiffs’ case.
Id.
In addition, the Court found that Defendants “substantially invoked the litigation machinery” by: Read the rest of this entry »
Bayer, California, Class action, Court of Appeal, Law, Legal Information, Los Angeles, Plaintiff
In Class Actions, Collateral Estoppel on February 15, 2012 at 7:46 pm
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The Court of Appeal for the Second District held that a denial of class certification cannot establish collateral estoppel against unnamed putative class members. Bridgeford v. Pacific Health Corporation, et al., No. B227486, 202 Cal.App.4th 1034 (2d Dist. Jan. 18, 2012).
Background
Plaintiffs Bridgeford and Tarin filed a class action complaint in May 2010 against Pacific Health Corporation and other entities, alleging that defendants committed numerous wage and hour violations, including (1) failure to pay wages due upon discharge or resignation, (2) failure to pay regular and overtime wages due semimonthly, (3) failure to provide meal breaks, (4) failure to provide rest breaks, (5) failure to provide itemized wage statements, (6) failure to pay minimum wages for time worked off-the-clock, (7) failure to pay overtime wages, and (8) unfair competition. Id.
The trial court sustained a demurrer without leave to amend. Id. Plaintiff’s appealed, contending the trial court misapplied the doctrine of collateral estoppel in holding that their class claims are precluded, and there is no basis to dismiss their individual claims or their representative claims under the Labor Code Private Attorneys General Act of 2004 (PAGA) (Lab. Code section 2698, et seq.).
Discussion
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California, California Supreme Court, Fleetwood Enterprises, Supreme Court of the United States
In Costs on August 16, 2011 at 12:53 pm
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Defendant United Parcel Service, Inc. prevailed against plaintiff employee on various wage and hour causes of action including failure to pay overtime and failure to provide breaks. Plancich v. United Parcel Service, Inc., — Cal. Rptr. 3d —-, 2011 WL 3506066, No. E050631 (4th Dist. Aug. 11, 2011). UPS won on all six counts, and the trial court awarded costs but then granted Plaintiff Plancich’s motion to strike costs. Id. *1. The Fourth District reversed the order granting the motion to strike costs, holding that a prevailing employer may recover costs in a wage suit.
Background
Plancich worked for UPS as an on-road supervisor. Id. He asserted in his complaint that he worked more than eight hours a day and more than 40 hours a week. Id. He also alleged that UPS misclassified him as exempt under the executive, administrative, or professional exemptions. Id. The jury found Plancich was an exempt employee. Id. As to the unfair competition cause of action, the trial court found in favor of UPS. Id. The trial court ordered that UPS recover its costs from Plancich, in an amount to be determined. Id.
After UPS filed its memorandum of costs in the amount of $38,387.20, Plancich filed a motion to strike and tax costs based on Earley v. Superior Court, 79 Cal. App. 4th 1420 (4th Dist. 2000). Read the rest of this entry »
Assault, Break (work), California, Cause of action, Class action, Employment, Federal Rules of Civil Procedure, Joe's Crab Shack, Law, Phyllis J. Hamilton, Police, Police officer, United States, United States District Court for the Northern District of California
In 23(b)(2) Class, Certification, Class Actions, Meal and Rest Breaks, Overtime, Uniform on January 1, 2011 at 3:21 pm
The Northern District of California denied class certification of a meal and rest break class action in Washington v. Joe’s Crab Shack, No. C 08-5551 PJH, 2010 WL 5396041 (N.D. Cal Dec. 23, 2010.) (slip op.). Plaintiff Drew Garrett Washington asserted that defendant Crab Addison, Inc. (“Crab Addison”), a company that operates a number of Joe’s Crab Shack restaurants, failed to provide employees with meal and rest breaks, allowed its restaurant managers to manipulate employee time records to deprive employees of pay for all hours worked (including overtime and missed meal break pay), required employees to perform work “off the clock”; and required employees to pay for their own employer-mandated uniforms. Id. *1.
Class Definition
Plaintiff moved pursuant to Federal Rule of Civil Procedure 23, to certify a plaintiff class consisting of “all non-exempt restaurant employees employed by Crab Addison at Joe’s Crab Shack restaurants in California from January 1, 2007, through the present.”
Discussion
The court denied the certification motion. Id. *11. “Plaintiff’s position is that common questions predominate because the main issue is whether—notwithstanding Crab Addison’s written policies—Joe’s Crab Shack restaurants in California followed a common unwritten policy of denying meal and rest breaks, failing to pay employees who did not take breaks, failing to pay for overtime, requiring employees to purchase their own uniforms, and so forth.” Id. Plaintiff contended that the existence of a policy or practice that in effect contradicts Crab Addison’s written policies can be ascertained by an analysis of the data in Crab Addison’s computer systems. Id. “But since plaintiff has failed to adequately explain how that analysis works and exactly what the data shows, he has failed to adequately establish the existence of such a policy or practice.” Id. Read the rest of this entry »
California, Entertainment Software Association, Jury Trial, Law, Lawyer, Southern California, United States, Xbox
In Blog Status on December 4, 2010 at 9:14 am
I am in trial, so there will be fewer updates until December 11.
Best,
Charles
Anthony C. White, California, Fair Labor Standards Act, Federal Rules of Civil Procedure, Law, Lawsuit, Maria-Elena James, United States, United States District Court for the Northern District of California
In Class Actions, Class Discovery, Class Notice, Collective Action, Discovery, FLSA, Opt-in on October 28, 2010 at 9:37 am
The United States District Court for the Northern District of California denied the production of names, addresses and telephone numbers of non-opt-in members of a FLSA collective and putative Labor Code class action. Hill v. R+L Carriers Shared Services, LLC, No. C 09-1907 CW (MEJ), 2010 WL 4175958 (N.D. Cal. Oct. 20, 2010). Plaintiff Glenn Hill is a former employee of Defendant R+L Carriers Shared Services, LLC, which provides administrative employees to transportation companies all across the United States. Id. *1. Plaintiff worked as a “dispatcher” at Defendant’s San Lorenzo terminal in California, and brought a collective and class action pursuant to the Fair Labor Standards Act (“FLSA”), California’s wage-and-hour laws and California Business & Professions Code section 17200. Id.
Background
Plaintiff sought two sub-classes: those employees in California and those that he refers to as a Nationwide Collective. Id. The California Class is defined as “all persons who worked for any period of time in California who were classified as Dispatchers (including “City Dispatchers” and any other position(s) who are either called, or work(ed) as, dispatchers) in the four years prior to the filing of this Complaint, up through the final disposition of this action.” Id. In Defendant contended that a collective action under the FLSA is improper because the job duties, work schedules, and salary of its employees varies across the United States, as well as in the State of California. Id. Read the rest of this entry »
California, California Department of Transportation, Government, Law, Orville A. Armstrong, Paul Turner, Richard M. Mosk, Superior court, Superior Court of Los Angeles County, United States, William F. Fahey
In Statutes of Limitation on October 19, 2010 at 12:30 pm
The Court of Appeal for the Second District held that a “DFEH complaint will [not] toll the statute on a claim for unpaid wages under the Labor Code.” Parvizian v. California Department of Transportation, No. B215608, 2010 WL 4012070 (Cal. Ct. App. 2d Dist. Oct. 14, 2010).
Background
Plaintiff-appellant Syrus Parvizian brought a suit against his former employer, respondent State of California Department of Transportation (“DOT”). Id. *1. The operative first amended complaint brought six causes of action, titled Damages for Violation of Statutory Duty to Pay Wages and Compensation, Unpaid Wages, Accounting, Conversion, Money Had and Received, and Discrimination, Harassment and Retaliation in Violation of Government Code section 12940. Id. DOT’s demurrer was sustained with leave to amend as to the causes of action for Damages of Violation of the Statutory Duty to Pay Wages and Compensation, Accounting, Conversion, and Money Had and Received. Id. The court ruled that the claims were not properly pled, noting that “the state can only be sued if it authorizes a lawsuit, and you don’t plead the proper statutory authority to do so.” Id. The court overruled the demurrer to the cause of action for unpaid wages, which was brought under Labor Code sections 201 and 202. Id. The court found that the cause of action for violation of Government Code section 12940 had been dismissed with prejudice in the earlier case, and sustained the demurrer as to that cause of action without leave to amend. Id. Plaintiff elected not to amend his complaint, and DOT filed a motion for judgment on the pleadings on the cause of action under the Labor Code, on the defense of statute of limitations. Id. The court granted the motion and dismissed the complaint. Id.
Statute of Limitations Read the rest of this entry »
Blog Status, California, California Wage & Hour Law, Holiday, Labor, Labor and Employment Law, Law, Legal Information, Living Wage, Minimum Wage, Overtime, United States
In Blog Status on October 18, 2010 at 4:54 pm
I am traveling this week, so California Wage & Hour Law will be updated less frequently. I’ll resume daily updates next week, October 26, 2010.
Cheers!
Charles Jung
Amount in controversy, Business, California, Claims Adjuster, Class action, Class Action Fairness Act of 2005, Defendant, Financial Services, Garland E. Burrell, Insurance, Law, Legal burden of proof, Legal Information, Plaintiff, United States
In CAFA Jurisdiction, Class Actions, Overtime on October 14, 2010 at 3:15 pm
The United States District Court for the Eastern District of California remanded a wage and hour class action case for failure to meet the $5,000,000 amount in controversy requirement under the Class Action Fairness Act (“CAFA”). Rhoades v. Progressive Casualty Insurance Co., Inc., No. 2:10-cv-1788-GEB-KJM, 2010 WL 3958702 (E.D. Cal. Oct. 8, 2010). Plaintiffs alleged that they and the members of the putative class were “employed in the State of California by the Defendant[ ] to adjust insurance claims and their positions were known as ‘Claims Adjuster,’ ‘Claims Generalist Associate,’ or similar titles” during the past four years. Id. Plaintiffs and members of the putative class were allegedly “not paid overtime wages for all hours worked” and were not “provided accurate itemized wage statements.” Id.
Apparently attempting to avoid federal court jurisdiction, Plaintiffs also alleged that “the individual members of the classes herein have sustained damages under the seventy-five thousand … jurisdictional threshold and that the aggregate claim is under the five million dollar … threshold, [and argue therefore] removal under the CAFA would be improper.” Id. Plaintiffs state in their prayer for relief: “Plaintiffs are informed and believe that the damages, back-wages, restitution, penalties, interest and attorneys’s [sic] fees do not exceed an aggregate of $4,999,999.99 and that Plaintiffs’ individual claims do not exceed $74,999.99.” Id. Read the rest of this entry »
