In Faulkinbury v. Boyd & Assoc., Court confirms the broad discretion given to trial courts considering certification

After weeks in the doldrums, a California Court of Appeal finally got around to issuing an opinion related to class actions.  Unfortunately, it isn't very exciting.  In Faulkinbury v. Boyd & Associates, Inc. (June 24, 2010), the Court of Appeal (Fourth Appellate District, Division Three) reviewed an order denying class certification of meal period, rest break and overtime (regular rate calculation) claims.

The Court confirmed what is, by now, a fairly well-established set of standards for appellate review of certification rulings:

Trial courts have discretion in granting or denying motions for class certification because they are well situated to evaluate the efficiencies and practicalities of permitting a class action. (Sav-On, supra, 34 Cal.4th at p. 326.) Despite this grant of discretion, appellate review of orders denying class certification differs from ordinary appellate review. Under ordinary appellate review, we do not address the trial court's reasoning and consider only whether the result was correct. (Kaldenbach v. Mutual of Omaha Life Ins. Co. (2009) 178 Cal.App.4th 830, 843.) But when denying class certification, the trial court must state its reasons, and we must review those reasons for correctness. (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435-436 (Linder).) We may only consider the reasons stated by the trial court and must ignore any unexpressed reason that might support the ruling. (Id.; see also Bufil v. Dollar Financial Group, Inc. (2008) 162 Cal.App.4th 1193, 1204-1205 (Bufil).)

Slip op., at 7.  The majority of the opinion simply confirms that, in the face of evidence apparently in conflict, the determination of which evidence to credit is left to the trial court.

The Court did reverse the trial court as to the overtime claim.  The Court found that the issue of whether certain payments should be included in the calculation of the regular rate is an issue well-suited to class-wide determination.

Get back to work.

How-to: iOS4 installation tips for the iPhone 3GS and Windows systems

After installing iOS4 on my iPhone 3GS and using it for a day, I can confirm that it is snappy and seems stable.  The new email format and folder icon features are immediately useful.

But before installing, I suggest that you do the following:

1. Sync your phone with iTunes.
2. If iTunes prompts you with the new operating system, decline at this time.
3. Reboot  your system.
4. Temporarily disable your antivirus and firewall (this is much safer if you are behind a home router that provides its own basic firewall services)
5. Start iTunes.
6. If you don't get a prompt to download once you connect your iPhone, click on the phone name in the left-side panel and then choose the check for updates option.
7. Download and install.
8. If the installation generates an error, disconnect the phone, close iTunes, restart it and follow the prompt to restore the phone.  This should result in a restore and upgrade.
9. Don't run other applications while the OS is downloading.  It is a big download; just let it finish.

In my case, I had to recheck all the applications in iTunes to get them to sync with the phone, but that was likely due to the fact that my installation generated an error and required a restore before upgrading the OS.

If an arbitration agreement allows the arbitrator to determine if the agreement is enforceable, the arbitrator can, unless that agreement is challenged...huh?

Today, the United States Supreme Court added to its recent spate of arbitration-related decisions.  In Rent-A-Center, West, Inc. v. Jackson (June 21, 2010), the Supreme Court considered one aspect of when a court determines arbitration agreement enforceability and when that determination must be left to the arbitrator.  In short, the Court held that, under the FAA, where an agreement to arbitrate includes anagreement that the arbitrator will determine the enforceability of that agreement, if a party specifically challenges the enforceability of the specific agreement to give the arbitrator the power to determine enforceability, the trial court considers that specific challenge.  But if a party challenges the enforceability of the agreement as a whole, the challenge is reserved for the arbitrator because of the delegation of that power to the arbitrator.

The dissent is rightly perplexed by this strange outcome:

In other words, when a party raises a good-faith validity challenge to the arbitration agreement itself, that issue must be resolved before a court can say that he clearly and unmistakably intended to arbitrate that very validity question. This case well illustrates the point: If respondent’s unconscionability claim is correct—i.e., if the terms of the agreement are so one-sided and the process of its making so unfair—it would contravene the existence of clear and unmistakable assent to arbitrate the very question petitioner now seeks to arbitrate. Accordingly, it is necessary for the court to resolve the merits of respondent’s unconscionability claim in order to decide whether the parties have a valid arbitration agreement under §2.  Otherwise, that section’s preservation of revocation issues for the Court would be meaningless.

Dissent, at 7.  In light of the current Court's view on arbitration agreements, it will likely take legislation to protect consumers and employees from adhesive arbitration agreements.

Will grant of certiorari in Laster v. AT&T Mobility LLC affect other cases? Not so far.

The Ninth Circuit's decision in Laster v. AT & T Mobility LLC, 584 F.3d 849 (9th Cir.2009) will be reviewed by the Supreme Court in AT & T Mobility LLC v. Concepcion, --- S.Ct. ----, 2010 WL 303962, 78 USLW 3454, 78 USLW 3677, 78 USLW 3687 (U.S. May 24, 2010) (NO. 09-893).  The issue presented in Concepcion has been framed by some as calling for a determination of whether the Federal Arbitration Act (“FAA”) preempts the State of California from conditioning the enforcement of an arbitration agreement on the availability of class-wide arbitration.  Others have more aggressively described the issue more broadly.  In either event, the question of concern to litigants now is the effect, if any, of that decision to grant review in other cases.  In at least one case, there was no evident effect.

United States District Court Judge Jeremy Fogel (Northern District of California) denied a motion to stay that was predicated upon the Supreme Court's decision to grant certiorari in Concepcion.  Kaltwasser v. Cingular Wireless LLC, 2010 WL 2348642 (June 8, 2010) (unpublished).

Mazza, et al. v. American Honda Motor Company was argued before the Ninth Circuit today

In the matter of Mazza, et al. v. American Honda Motor Company, the Ninth Circuit heard oral argument today.  Defendant's Rule 23 Petition was granted after the District Court certified UCL and CLRA claims on a nationwide basis.  The District Court's choice-of-law analysis was the primary focus.  If reports are accurate, The Ninth Circuit may very well send the matter back to the trial court for some adjustment to the choice of law analysis and further consideration of whether any other state's interests outweigh California's strong interests in regulating the conduct of its corporate citizens and ensuring that they deal appropriately with all consumers, wherever situated.  Or the Court might decide that, in this particular case, the comparison of interests was not shown to require the application of other laws.  You can listen and decide for yourself here.

California Supreme Court activity for the week of June 7, 2010

After two weeks with no conferences, the California Supreme Court held its (usually) weekly conference today.  The only marginally notable result I see is:

• A non-substantive correction to the opinion in Martinez v. Combs (June 9, 2010) (expansive definition of "employee" for certain labor code violations) was issued.  The decision was mentioned on this blog here.

Update on 2010-06-12 01:46 by The Complex Litigator

A reader alerts me to the fact that I missed one key petition grant:

• Coito v. Superior Court will be reviewed by the Supreme Court.  See post for discussion about this interesting work product decision.  At least we may finally get some guidance about the reach of Nacht & Lewis Architects, Inc. v. Superior Court, 47 Cal.App.4th 214 (1996).

RSS feeds on The Complex Litigator

If you subscribe to the RSS feed provided by Feedburner (now Google Feedburner, actually), something seems to have gone wrong with it in the last week.  I suggest changing over to the RSS feed provided by SquareSpace:  http://www.thecomplexlitigator.com/post-data/rss.xml

I may need to abandon the FeedBurner feed if it doesn't correct itself soon, but I didn't want to cut off subscribers without warning about the possibility of this change.

American Nurses Association v. O'Connell invalidates as illegal a portion of a class action settlement involving rights of students with diabetes

Class actions involving allegations of discrimination regularly include injunctive relief provisions as part of a settlement or judgment.  However, the complexity of these types of actions increases the likelihood that settlement terms will have unintended consequences.  In American Nurses Association v. O'Connell (June 8, 2010), the Court of Appeal (Third Appellate District) reviewed a challenge to terms of a class action settlement between public school students and Jack O'Connell, in his capacity as the Superintendent of Public Schools for California, the Board of Education of California and the individual members of the Board of Education, the California Department of Education (CDE), and two local school districts and their superintendents.  The students alleged defendants violated various federal laws (ADA and others) by failing to ensure the provision of health care services to students with diabetes, including insulin administration, that was necessary to enable those students to obtain free appropriate public education.  The settlement of that action required, among other things, the issuance of an advisory by the CDE about insulin administration.  The advisory took the position that "in order to comply with federal law, California law should be interpreted to allow, if a licensed person is not available or feasible, trained unlicensed school employees to administer insulin during the school day to a student whose Section 504 Plan or IEP requires such insulin administration."  (Slip op., at 3.)

The American Nurses Association and the American Nurses Association/California filed an action against O'Connell as Superintendent of Public Instruction and the CDE challenging section 8 of the advisory, the portion of the legal advisory that permits unlicensed school employees to administer insulin to students with diabetes.  The Nurses Associations alleged that section 8 is inconsistent with the Nursing Practice Act (NPA) (Bus. & Prof. Code, § 2700 et seq.) and is an illegal regulation implemented by the CDE without compliance with the Administrative Procedure Act (APA) (Gov. Code, § 11340 et seq.).

The trial court agreed with the Nurses Associations, ruling that the NPA prohibited the administration of insulin by unlicensed school employees.  The trial court also rejected the argument that California's laws were preempted by federal law.  Finally, the trial court determined that the challenged portion of the legal advisory was an invalid regulation under the APA.  The Court of Appeal affirmed the finding that current California law does not permit the administration of insulin by unlicensed school employees.  Having so ruled, the Court of Appeal did not reach the alternative basis for the trial court's ruling.

The only moral of the story is that you must craft your injunctive relief language with great care.

How-to: Fix PDF files that are rejected by the Central District filing system because of links - The Simple Method

I recently provided a method for dealing with PDFs rejected by the CM/ECF filing system (as it is implemented by the U.S. District Court for the Central District of California).  That method is detailed here.  While that process of exporting a problematic document out to a new document format (XPS) and then back into PDF deals with a number of problems, not everyone will find it to be a comfortable solution.

Here is an alternative method for removing links from a PDF, if you have Acrobat 9:

1. From the Advanced menu, select "Document Processing"
2. Choose the "Remove All Links..." option
3. Do it

That does it.  External hyperlinks distress the CM/ECF system, which, presumably, has been set to search for such links in order to prevent exploits that would lure unsuspecting clerks and judges to malicious websites.

Brinker Watch 2010 - Version 2

In March of this year, I observed that Brinker Restaurant v. Superior Court (Hohnbaum) was fully briefed back in October 2009.  At that time, I moved the over-under on an Opinion release date from August 2010 to October 2010.  I regret to inform anyone with office pools that I must now make a second, larger move of the line and set the over-under at February 2011.

The problem arises because the Supreme Court is done hearing cases for Summer 2010.  As you can see here, July and August will have no case arguments.  September is the earliest that Brinker could be placed on an oral argument calendar.  For purposes of wagering only (which I fully support but will not participate in), I'm guessing that the argument occurs in November, resulting in a February 2011 opinion release target date.