Brown v. Ralphs Grocery Co. is now final final final

Assuming you fall into the camp that doesn't want to see arbitration used to destroy all collective rights (which camp includes plaintiffs' counsel explicilty and defendants' counsel covertly), here is some good  news, compliments of The UCL Practitioner.  The U.S. Supreme Court denied a petition for writ of certiorari in Brown v. Ralphs Grocery Co., 197 Cal.App.4th 489 (2011).  In Brown, the Court of Appeal (Second Appellate District, Division Five) held that representative PAGA claims (i.e., not class-based claims) are not subject to arbitration, even post-Concepcion.  That's Concepcion, the case, not the other option (with different spelling).

Get your PAGA letters ready.

Peremptory challenges by different plaintiffs in two PAGA suits held valid in Pickett v. Superior Court

In my experience, there is a good deal of confusion about what is meant by the "one challenge per side" rule governing peremptory challenges to assigned trial judges under Code of Civil Procedure section 170.6.  In Pickett v. Superior Court (February 22, 2012), the Court of Appeal (Second Appellate District, Division Five) reduced at least some of that confusion, upholding the right of the plaintiff in a second, related action to exercise a peremptory challenge after the plaintiff in the earlier-filed action had already done so.

Pickett’s action that included a Private Attorney General Act (Lab. Code, § 2698 et seq.) (PAGA) claim.  It was deemed related to a prior-filed PAGA action brought by Eugina Bright, against the same defendant, 99¢ Only Stores, on similar allegations.  The two action sought somewhat different remdies.  Pickett’s action was reassigned to the all-purpose judge in the prior-filed action, but not consolidated with that first action.  Pickett timely filed a peremptory challenge to the trial judge pursuant to Code of Civil Procedure section 170.6.

The trial court struck the challenge as improper.  It determined that Pickett’s action was identical to and a continuation of the action brought by Bright, who had already used her one peremptory challenge in the matter after remand following a successful appeal.  The Court of Appeal concluded that under section 170.6 and the authorities applying it, Pickett’s action is not a continuation of Bright’s action, nor is Pickett on the same “side” as Bright in one action, and therefore Pickett’s peremptory challenge should have been accepted.

An interesting extra detail is that in the Notice of Related Cases, Pickett described her claims as "identical" to Bright's.  Despite that characterization, one that the defendant sought to turn to its advantage, the Court of Appeal determined that the right to exercise a peremptory challenge should be determined by the nature of the cases and identity of the parties, not the characterization by a party in a Notice of Related Cases.

Rest break and wage statement claims denied certification; Court appears to confuse PAGA requirements with other civil claims

United States District Court Judge Susan Illston (Northern District of California) denied certification in a suit by security guards alleging, among other things, failure to provide adequate rest breaks and failure to provide adequate wage statements.  Temple v. Guardsmark LLC, 2011 WL 723611 (N.D.Cal. Feb 22, 2011).  The rest break analysis was not particularly controversial.  The Order suggests that the defendant had a facially lawful policy and a large number of declarants supporting its practices.  The Court also agreed with defendant's observation that "even if plaintiffs have isolated one general question of whether the narrow California-specific policy displaced the general, national always-on-duty [policy], that question does not have a common answer."  Slip op., at 6.

The problematic portion of the Opinion concerns the wage statement claim.  There is no mention anywhere that the wage statement claim is purely derivative of a PAGA claim.  But the Court seems to impose an administrative exhaustion claim on Labor Code section 226:

California Labor Code Section 226(a) requires wage statements to show “all applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate by the employee.” California law also requires that employees be paid double their regular rate of pay for every hour worked over twelve hours in a single day. Cal. Labor Code § 510. Finally, California requires that an “aggrieved employee or representative ... give written notice by certified mail to the Labor and Workforce Development Agency and the employer of the specific provisions of this code alleged to have been violated, including the facts and theories to support the alleged violation,” before bringing a civil action based on violation of Section 226(a) of the Labor Code.  Cal. Labor Code §§ 2699.3, 2699.5.

Slip op., at 7.  It is settled law in California that PAGA did not displace any civil actions that could have been brought prior to its passage.  And there is no reason to conclude that PAGA requires LWDA exhaustion for anything other than PAGA claims.  It is unclear from the Order why this issue is discussed in this way.  It may be that the plaintiff attempted to circumvent a statute of limitations issue by claiming that a PAGA claim for other violations gave sufficient notice of the wage statement claim to permit relation back to the filing of an earlier complaint.  Whatever the case, the Order is dangerously unclear and incorrectly suggests an exhaustion requirement under 226 that does not exist.

California Supreme Court activity for the week of February 14, 2011

The California Supreme Court held its (usually) weekly conference on February 16, 2011.  Notable results include:

• Petition for Review denied in Villacres v. ABM Industries, 189 Cal. App. 4th 562 (2010) [PAGA claims precluded when underlying claims released in prior settlement];
• Petition for Review denied in Bright v. 99¢ Only Stores, 189 Cal. App. 4th 1472 (2010) [PAGA penalties available for violation of wage order suitable seating requirement], discussed on this blog here.

I am slightly surprised by the decision not to review Villacres, considering only the strength of the dissent in that decision.

Second Court of Appeal holds that PAGA penalties are available for certain wage order violations

In Bright v. 99¢ Only Stores, 189 Cal. App. 4th 1472 (2010), on an issue of first impression, the Court of Appeal (Second Appellate District, Division Five) held that (1) violations of Wage Order No. 7, subdivision 14 are violations of section 1198; and (2) civil penalties under section 2699, subdivision (f) are available despite the fact that Commission wage order No. 7-2001 has its own general penalty provision.  (Discussed on this blog, in a very serious post, here.)  In other words, PAGA penalties are available for wage order violations, at least as far as the adequate seating requirement is concerned.  But when a Court of Appeal tackles a question of first impression, you always have to wonder whether that holdling to stand up over time.  Today, in Home Depot U.S.A., Inc. v. Superior Court (December 22, 2010), the Court of Appeal (Second Appellate District, Division Four) agreed with their fellow justices from Division Five and held that (1) violations of a Wage Order are violations of section 1198; and (2) civil penalties under section 2699, subdivision (f) are available unless some other penalty is specifically provided for in the Wage Order.

At this point, the best business opportunity in California would be small footprint stools that can fit behind registers at retail stores.

Bright v. 99¢ Only Stores holds that PAGA penalties are available for certain wage order violations

Employer:  Give it to me straight, Doc, is it serious?

Defense Counsel:  You'll need to sit down for this one.

Employer:  Okay.  Wait, there aren't any chairs here.

Defense Counsel:  I know!  Get it?  No chairs?  Now don't be like that....

I'm delaying the reporting just to build the suspense.  You have been wondering whether violations of Wage Order No. 7, subdivision 14 are violations of Labor Code § 1198, and here I am writing my first play.  But your wait is over.  In Bright v. 99¢ ONLY STORES, the Court of Appeal (Second Appellate District, Division Five) held that (1) violations of Wage Order No. 7, subdivision 14 are violations of section 1198; and (2) civil penalties under section 2699, subdivision (f) are available despite the fact that Commission wage order No. 7-2001 has its own penalty provision.

This action arises from a claim for civil penalties under the Private Attorneys General Act of 2004 ("PAGA") for violation of the suitable seating order of the Commission.  Commission Wage Order No. 7, subdivision 14, provides, in part: Wage Order No. 7, subdivision 14 provides: “(A) All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats. [¶] (B) When employees are not engaged in the active duties of their employment and the nature of the work requires standing, an adequate number of suitable seats shall be placed in reasonable proximity to the work area and employees shall be permitted to use such seats when it does not interfere with the performance of their duties.”  Slip op., at 2, n. 2.  This requirement is sometimes known as the suitable seating requirement.  The trial court sustained the defendant's demurrer on the grounds that (1) failure to provide sufficient seating is not a condition “prohibited” by Wage Order No. 7, subdivision 14, and (2) even if it were, civil penalties are not recoverable under section 2699, subdivision (f), because Commission Wage Order No. 7-2001 contains its own civil penalty provision.

The Court of Appeal concluded that the issues raised in the appeal were matters of first impression.  On an issue of first impression, the Court began with the statute at issue:

We begin by examining the statutory and administrative scheme, starting with section 1198, which provides: “The maximum hours of work and the standard conditions of labor fixed by the commission shall be the maximum hours of work and the standard conditions of labor for employees. The employment of any employee for longer hours than those fixed by the order or under conditions of labor prohibited by the order is unlawful.”

Slip op., at 5.  The Court then held that, under the plain meaning of section 1198, suitable seating is a "standard condition of labor fixed by the commission."  Slip op., at 6.  The Court rejected defendant's argument that because the seating language was not expressed in prohibitory language, it was merely a suggestion.

Employer:  What about chairs that give off electric shocks at random intervals so nobody wants to sit in them?

Defense Counsel:  No.  Wait.  Yes, if that's what you want to do, but only after you augment your retainer.  Significantly.

Turning to the second question, the Court of Appeal quickly concluded that, because the suitable seating requirement did not have its own penalty provision, it is governed by section 2699, subdivision (f) of PAGA.  The Court noted that the penalty set forth in subdivision 20 is expressly described as a cumulative remedy, rendering it nonexclusive.

Employer:  I had a nightmare.  It was horrible.

Defense Counsel:  Tell  me about it.

Employer:  It was dark.  There was a sound.  It was like nothing I have ever heard before.  I think it was the sound of drool from a million plaintiff's attorneys splattering on the floor.

Defense Counsel:  It was no dream!

Employer:  Aaaaahhh!!!!..........

Judge Patel offers interesting comments about the puzzle of PAGA

United States District Court Judge Marilyn Hall Patel (Northern District of California) offered some interesting comments, but no clear solutions, to the puzzle posed by litigation of PAGA claims as representative actions.  Ochoa-Hernandez v. Cjaders Foods, Inc.. (N.D. Cal. Apr. 2, 2010) 2010 WL 1340777.  In the course of denying plaintiff's motion to preclude the defendant from contacting current or former employees about the litigation, the Court said:

From a practical perspective, plaintiff's analogy between class actions and PAGA claims is also misplaced. While both fall within the general category of virtual representation, there are significant differences between the two. Unlike a class action seeking damages or injunctive relief for injured employees, the purpose of PAGA is to incentivize private parties to recover civil penalties for the government that otherwise may not have been assessed and collected by overburdened state enforcement agencies. Id. (“The act's declared purpose is to supplement enforcement actions by public agencies, which lack adequate resources to bring all such actions themselves.”). Unlike class actions, these civil penalties are not meant to compensate unnamed employees because the action is fundamentally a law enforcement action. Moreover, unlike the binding finality of a class action with respect to damages, the individual employee has less at stake in a PAGA representative action: if the employer defeats a PAGA claim, the nonparty employees, because they were not given notice of the action or afforded an opportunity to be heard, are not bound by the judgment as to remedies other than civil penalties. Id. at 987, 95 Cal.Rptr.3d 588, 209 P.3d 923. Thus, nonparty employees can bring an action against the employer based on identical facts so long as they do not seek civil penalties. Class members, however, would be bound by a judgment against the class, independent of the remedy later sought.

*5 Class actions litigated in federal court also contain numerous procedural protections that are not available in PAGA claims. Unnamed employees need not be given notice of the PAGA claim, nor do they have the ability to opt-out of the representative PAGA claim. There is no indication that the unnamed plaintiffs can contest a settlement, if any, reached between the parties. The court does not have to approve the named PAGA plaintiff, nor does the court inquire into the adequacy of counsel's ability to represent the unnamed employees. These procedural protections ensure the fidelity of the attorney-client arrangement in a class action. Their absence further militate against considering a PAGA claim akin to a certified class action.

Additionally, in order to bridge the gap between Arias and the creation of an attorney-client relationship, at least two inferential steps are required, and neither is present. First, Arias is silent on what procedures, if not class action procedures, are sufficient to perfect representative status in representative actions. While representative status may accrue once administrative requirements have been satisfied, Arias does not so hold and plaintiff cites no further authority. Second, assuming that representative status is perfected once administrative requirements are satisfied, Arias does not contemplate the practical issue of when, if at all, an attorney-client relationship arises between plaintiff's counsel and the current or former employees.

Slip op., at 4-5.  If it isn't obvious from this long excerpt, the argument up for discussion was whether an attorney-client relationship existed between the absent employees and the attorney for the named plaintiff.  While the Court's comments explain why a PAGA claim is different from a class action, the discussion is not intended to address the case management question posed by PAGA.  Nevertheless, the brief observations by this Court are of interest to practitioners in this area of law.