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I was right: Bridgeford v. Pacific Health stabs Alvarez v. May Dept. Stores Co. in the heart, stuffs garlic in its mouth

The Complex Litigator — Fri, 27 Jan 2012 01:01:12 +0000

I hate Alvarez v. May Dept. Stores Co., 143 Cal. App. 4th 1223 (2006). My supplemental briefing in that case was uncannily prescient of parts of Taylor v. Sturgell, 128 S.Ct. 2161 (2008). But did the Court of Appeal rule in my favor. Nooooo. Did the U.S. Supreme Court take my case to correct that gross misinterpretation of collateral estoppel rules in uncertified class actions? Nooooo. But along comes Bridgeford v. Pacific Health (January 18, 2012), in which the Court of Appeal (Second Appellate District, Division Three) did what I so wanted to do. They stabbed Alvarez dead, dead, dead.

Here are the money quotes:

California courts have held or suggested that the denial of class certification can establish collateral estoppel against absent putative class members on issues that were actually decided in connection with the denial. (Alvarez v. May Dept. Stores Co. (2006) 143 Cal.App.4th 1223, 1236; Bufil v. Dollar Financial Group, Inc. (2008) 162 Cal.App.4th 1193, 1202-1203 (Bufil); see also Johnson v. GlaxoSmithKline, Inc. (2008) 166 Cal.App.4th 1497, 1510-1513 & fn. 8 (Johnson) [assuming the point while expressing reservations].) Alvarez stated that the principles of collateral estoppel ensure that the absent putative class members' interests were adequately represented in the prior proceeding. (Alvarez, supra, at p. 1236.) We conclude to the contrary that if no class was certified by the court in the prior proceeding, the interests of absent putative class members were not represented in the prior proceeding and the requirements for collateral estoppel cannot be established, as we shall explain.

Slip op., at 11. The Court then explained:

The United States Supreme Court, however, in Smith v. Bayer Corporation, supra, 131 S.Ct. 2368, recently resolved the issue. Applying common law principles of issue preclusion, the high court held that unnamed putative class members cannot be bound by issue preclusion if the class was never certified in the prior proceeding. (Id. at pp. 2380-2381.) Smith v. Bayer Corporation stated, “[n]either a proposed class action nor a rejected class action may bind nonparties” (id. at p. 2380), and, “[t]he great weight of scholarly authority . . . agrees that an uncertified class action cannot bind proposed class members.” (Id. at p. 2381, fn. 11.) The high court explained that unnamed putative class members as nonparties can be bound by issue preclusion only if there was a properly certified class because only in those circumstances can the court in the later proceeding conclude that their interests were adequately represented in the prior proceeding. (Id. at pp. 2379-2381 & fn. 11.)

We find the reasoning in Smith v. Bayer Corporation, supra, 131 S.Ct. 2368, persuasive and conclude, under California law, that the denial of class certification cannot establish collateral estoppel against unnamed putative class members on any issue because unnamed putative class members were neither parties to the prior proceeding nor represented by a party to the prior proceeding so as to be considered in privity with such a party for purposes of collateral estoppel.

Slip op., at 12-13.

Back to your crypt for all eternity, foul spawn of darkness.

Spiro Moss is helping to rebuild America, one or two jobs at a time

The Complex Litigator — Wed, 25 Jan 2012 18:35:34 +0000

Spiro Moss LLP is currently looking to hire one experienced attorney and one paralegal. Read more about these opportunities here.

Alvarez v. Brookstone Company, Inc. holds that Pineda v. Williams-Sonoma Stores, Inc. applies retrospectively

The Complex Litigator — Thu, 19 Jan 2012 00:27:33 +0000

Pineda v. Williams-Sonoma Stores, Inc., 51 Cal. 4th 524 (2011) (Pineda) held that the collection of ZIP codes as part of a credit card transaction is conduct that violates Civil Code section 1747.08. In Alvarez v. Brookstone Company, Inc. (pub. ord. January 18, 2012), the Court of Appeal (Fourth Appellate District, Division One) considered whether Pineda applied retrospectively to conduct occurring prior to that decision. The Court had little difficulty concluding that the holding of Pineda applied retrospectively:

Pineda expressly concluded: "[T]he only reasonable interpretation of section 1747.08 is that personal identification information includes a cardholder's ZIP code." (Pineda, supra, 51 Cal.4th at p. 534, italics added.) Therefore, despite Brookstone's attempts to show the contrary, the California Supreme Court held that its interpretation of section 1747.08 was the only reasonable interpretation of that statute. Pineda further concluded section 1747.08 "provides constitutionally adequate notice of proscribed conduct." (Id. at p. 536.) We reject Brookstone's due process argument that it did not have fair notice or warning of section 1747.08's prohibition against requesting and recording the ZIP codes of customers during credit card transactions.

Slip op., at 7.

Dear Congress: Get your grubby paws off the internet - I'm looking at you, SOPA and PIPA

The Complex Litigator — Thu, 19 Jan 2012 00:17:25 +0000

In case my opinion isn't entirely clear, SOPA (Stop Online Piracy Act) and PIPA (Protect IP Act) are junk. The laws display a catastrophic ignorance about how the Internet actually works, are so poorly written as to invite abuse, will most certainly be abused (based on how the MPAA and RIAA have conducted themselves in the past), and will move the United States uncomfortably down the road towards a fragmented, censored Internet.

If you aren't all that technical and want an idea of what's wrong with these laws, reddit has a good post on the topic.

Court revives claims of failure to disclose and active concealment of defects from computer purchasers

The Complex Litigator — Thu, 12 Jan 2012 20:36:28 +0000

Reporting on this case pains me greatly. I should be pleased to report on a CLRA and UCL decision that revives consumer claims. But all I feel is pain. Let me explain by quoting from the case. The very first sentence says, "In this class action alleging a failure to disclose a computer defect involving a microchip that controlled floppy disk data transmission, plaintiffs Tammy Collins and Rudolph Roma appeal from a judgment on the pleadings." Huh? Floppy disk data transmission. Rings a bell. Nope, can't place it. Must be some highfalutin, newfangled technology. I recognize "data." Anyhow, in Collins v. eMachines, Inc. (pub. ord. December 21, 2011), the Court reviewed a trial court order granting a motion for judgment on the pleadings.

It was alleged that defendant failed to disclose and actively concealed the disk controller defect from potential purchasers. Despite knowing of the defect and knowing that the defect could result in critical data corruption, executives of eMachines directed the company to continue to sell the defective computers after October 31, 1999. eMachines actively concealed the existence of the defect from purchasers by, among other practices specified in the FAC, continuing to issue the warranty knowing the computers had the defect, and engaging in misleading “customer service” practices that concealed the defect in online “customer support” guides, in customer service diagnoses of computer problems, and at call centers. The case was stayed for four years while cases in other states moved forward.

Turning first to the CLRA, the Court restated the LiMandri circumstances giving rise to actionable deceit. The Court recognized the FAC as alleging factor (2), when the defendant has exclusive knowledge of material facts not known or reasonably accessible to the plaintiff, and factor (3), when the defendant actively conceals a material fact from the plaintiff. The Court then agreed that a "reasonable" consumer would certainly find data corruption to be material information in connection with a computer.

Next, the Court distinguished Daugherty, observing that, in Daugherty, the only represetation made was the warranty, and the vehicles performed adequately as warranted. The Court was similarly dismissive of Bardin, in which it was alleged that exhaust manifolds were likely to fail after the warranty period. The Court explained that the manifolds in Bardin worked they way they were supposed to under the warranty. Contrasting the circumstances, the Court said, "Because a floppy disk, at the time of the complaint, was integral to the storage, access, and transport of accurate computer data, the floppy disk was central to the function of a computer as a computer. The exhaust manifolds at issue in Bardin, by contrast, were just blowing smoke." Slip op., at 12. That's funny. You see, the exhaust manifold vents combustion byproducts...

Regarding the UCL, the Court relied on its discussion about Daugherty and Bardin to conclude that a claim under the UCL was easily stated as well. The Court agreed that consumers certainly had an expectation about data integrity when they purchased the affected computers.

After also concluding that the allegations supported a claim for common law fraud, the Court concluded that legal remedies were adequate, rendering an unjust enrichment claim unnecessary.

I should also tag this one with "Dinosaurs," given the discussion of floppy disk drives. That reminds me that I should tell you about the time I saved data on a bent floppy disk drive by removing the casing and putting the raw disk in a disk drive. The year was 1985. Madonna, Huey Lewis, Duran Duran and Wham! were dominating the charts...

[extended period of blank stares]

...and that's how I saved all that data!

Aleman v. Airtouch Cellular confirms what we already suspected regarding reporting time pay and split shift wages

The Complex Litigator — Thu, 12 Jan 2012 19:08:29 +0000

While this case ostensibly addresses issues of first impression in California, like many such decisions it was only a matter of time. In Aleman v. Airtouch Cellular (December 21, 2011), the Court of Appeal (Second Appellate District, Division Two) examined claims for reporting time pay and split shift premiums. The case was brought by former employees of AirTouch. The plaintiffs worked mostly as retail sales representatives or customer service representatives at AirTouch stores and kiosks. Plaintiffs alleged that AirTouch did not properly pay its nonexempt employees for attending mandatory store meetings.

On the reporting time claim, the Court concluded that the plaintiffs were not entitled to receive "reporting time pay" for attending meetings at work, because all the meetings were scheduled and they worked at least half the scheduled time. This issue stems from the argument that reporting time pay should be based on a two-hour minimum. Thus, goes the argument, if you are called into a meeting one day for two hours, you should get two hours of pay, even if the meeting last 90 minutes. This theory is dead. If a meeting is scheduled, and the meeting lasts at least half the scheduled time, that is good enough.

On the split shift differential claim, the Court concluded, consistent with at least one treatise to examine the issue, that the split shift differential is intended only to protect the minimum wage law. Thus, if your pay for the hours worked is enough to satisfy the split shift premium of one extra hour of pay at minimum wage, then no further pay need be supplied.

On the plus side, the Court explicitly held that an award of attorney's fees was improper, since both reporting time pay and split shift pay were governed by Labor Code section 1194, governing payment of minimum wages. Since the one-way fee shifting statute controls the claims, defendant could not recover fees. Phew.

What procedures must a Court follow when a plaintiff settles, leaving a "headless" putative class action?

The Complex Litigator — Thu, 12 Jan 2012 00:42:58 +0000

I've faced a species of this issue myself. But it turns out that the answer to this question involves more potential twists and turns than one might first believe. Seems there's more than one way to skin this headless cat. And, in a most interesting twist, the appellate division tackling this question is very same division that decided Parris v. Superior Court, 109 Cal. App. 4th 285 (2003) [pre-certification communications with class members], Belaire-West Landscape, Inc. v. Superior Court, 149 Cal. App. 4th 554 (2007) [discovery of putative class member identity and contact information], and Lee v. Dynamex, Inc., 166 Cal. App. 4th 1325 (2008) [discovery of putative class member identity and contact information], so one might say that this division has a certain expertise regarding this prickly area.

In Pirjada v. Superior Court (December 12, 2011), the Court of Appeal (Second Appellate District, Division Seven) issued an order to show cause but ultimately denied the petition for a writ of mandate brought by the plaintiff following the denial of a discovery motion. The plaintiff settled his individual claim through direct negotiations with defendant's CEO. The trial court granted leave to amend the complaint to name a new class representative but denied the motion to compel precertification discovery to identify a suitable class representative.

What will ultimately happen in this case remains unclear. But this opinion does identify key decisions that might have changed the result, though that is hard to say with certainty.

The Court began its discussion by restating existing standards. First, class member rights are protected, even pre-certification. Second, court approval is not needed to communicate with putative class members, but when a court's assistance is solicited, a court can consider the potential for abuse. Third, class member contact information is "generally discoverable." Fourth, lead plaintiffs, who are unqualified to serve as a class representative may, "in a proper case," move for discovery to find a new representative. However, the Court also noted that precertification discovery is not a matter of absolute right.

Next, citing La Sala v. American Savings & Loan Assn., 5 Cal. 3d 864 (1971) and Kagan v. Gibraltar Sav. & Loan Assn., 35 Cal. 3d 582 (1984) (disapproved in part on another ground in Meyer v. Sprint Spectrum L.P., 45 Cal.4th 634 (2009)), the Court emphasized the trial court's obligation, as also stated in Rule 3.770, to consider carefully any request to dismiss a class action and evaluate whether notice is necessary.

Then, after noting that the standard of review is the abuse of discretion standard, the Court explained why the writ must be denied. Petitioner first argued, as a matter of discovery law, that because defendant failed to respond to document requests, it waived any objection. Absent a finding that the failure was the result of mistake, inadvertence or excusable neglect, Petitioner argued that it was an abuse of discretion to deny the motion to compel. Second, as a matter of the procedural law governing class actions, Petitioner argued that the court abused its discretion in declining to authorize notice to potential class members about the need for a substitute representative. The Court found the first contention to be incorrect and the second premature.

Interestingly, though the Court ultimately rejected the challenge to the discovery order, it was highly critical of defendant's behavior:

Outside the context of representative and class actions it may well be, as Pacific National observes, “a matter of common knowledge and common sense” that once a plaintiff settles his or her case any discovery responses not yet due no longer need to be served. Because the lawsuit against Pacific National was filed as a class action, however, and the individual settlement with Pirjada was made without the participation or consent of his lawyer, the experienced employment law attorneys representing Pacific National should have either objected to the still-outstanding discovery as moot, moved for a protective order or taken steps to ensure that the settlement agreement between their client and Pirjada included a provision withdrawing any remaining discovery requests.

Slip op., at 12. The Court then observed that the trial court could have crafted a number of alternative orders designed to locate a suitable representative. Here's where things get interesting. The trial court first considered and denied a motion to give notice to the class. That order was not challenged, though the Court telegraphed its opinion of the Order:

Although the court's decision to deny Westrup Klick's motion for notice to the class was based largely on a distinction between consumer and employee class actions, a distinction we implicitly rejected in Belaire-West Landscape, Inc. v. Superior Court, supra, 149 Cal.App.4th 554, the propriety of that ruling is not before us. Westrup Klick did not seek writ review of the court's May 26, 2011 order. Instead, it elected to proceed by way of a motion to compel.

Slip op., at 13. The Court then concluded that the trial court's decision to deny the motion to compel after giving time to find a new representative was not arbitrary or capricious.

As to the second, premature argument, the Court also seemed to be hinting that the trial court should proceed with caution:

Whether or not the superior court's initial decision not to notify potential class members that Pirjada now lacks standing to represent the class was correct, the court will necessarily revisit that question when it hears its order to show cause regarding dismissal. Counsel's declaration in support of the petition for writ of mandate indicates a new class representative cannot be identified by the informal means authorized in Parris, supra, 109 Cal.App.4th 285, and discussed by the superior court during the May 26, 2011 hearing. Assuming that remains the case, Westrup Klick will have an opportunity to demonstrate to the court that some form of notice is required to avoid prejudice to absent class members. It would be inappropriate for us to prejudge the outcome of that hearing or to restrict the superior court's discretion by attempting to outline the factors it should weigh in deciding how to comply with the requirements of La Sala, Kagan and Rule 3.770.

Slip op., at 14-15. Riiiiiight. Good thing they didn't give the trial court a look at their cards.

So now you know, at a minimum, that when the representative suddenly hits the eject button, class counsel needs to walk carefully through the dismissal process so as to seek the best possible methods for locating replacement representatives and/or obtaining notice to the putative class.

Common law test for employment governs claim by "licensed agent" challenging independent contractor classification

The Complex Litigator — Wed, 11 Jan 2012 21:24:24 +0000

Test pilots who push the envelope either go on to walk on the moon and serve as legislators or die in fiery crashes. Either way, they go out in a big way. Cases that push the envelope don't have such dramatic finishes, but they often clarify the law, and not necessarily in a good way. In Arnold v. Mutual of Omaha Insurance Company (December 30, 2011), the Court of Appeal (First Appellate District, Division One) reviewed the trial court's decision to grant summary judgment in favor of defendant on the claim that a non-exclusive insurance agent was improperly classified as an independent contractor. A key aspect of the Court's decision concerned the issue of whether the trial court applied the correct test for employment to claims alleging failure to reimburse expenses and failure to timely pay wages.

On appeal, the plaintiff argued that the trial court erred in applying the common law test for employment that was enunciated in S. G. Borello & Sons, Inc. v. Department of Industrial Relations, 48 Cal. 3d 341 (1989). Instead, the plaintiff contended that Labor Code section 2750 supplied a statutory definition of employee that is broader than the common law test and controls the definition of employee applicable to section 2802. I note here, parenthetically, that this argument seems somewhat similar to an discussion of this issue I presented some years ago on this blog. At least now I don't have to wonder how a court would react to this analysis.

In any event, the Court cited approvingly to Estrada for its conclusion that the Labor Code does not define "employee" for purposes of section 2802:

One reviewing court has recently held the Labor Code does not expressly define “employee” for purposes of Labor Code section 2802, and therefore, the common law test of employment applies to that section. (Estrada v. FedEx Ground Package System, Inc. (2007) 154 Cal.App.4th 1, 10 (Estrada).) That court went on to cite the “principal” and “additional factors” of the common law test as articulated by the Supreme Court in Borello, supra, 48 Cal.3d 341, and summarized above. (Estrada, supra, at p. 10.)

Slip op., at 6-7. While the Court noted that Estrada may not have explicitly considered the argument about section 2750, the Court went on to hold that the common law test must apply, or section 2750 would conflict with the statutes immediately following 2750.

Having settled on the common law test for employment as the correct test, the Court then considered whether the evidence supported the trial court's decision to grant summary judgment. While it is impossible to know what evidence was submitted, the Court's summary of key evidence suggests that the defendant had the better of it:

The salient evidentiary points established Arnold used her own judgment in determining whom she would solicit for applications for Mutual's products, the time, place, and manner in which she would solicit, and the amount of time she spent soliciting for Mutual's products. Her appointment with Mutual was nonexclusive, and she in fact solicited for other insurance companies during her appointment with Mutual. Her assistant general manager at Mutual's Concord office did not evaluate her performance and did not monitor or supervise her work. Training offered by Mutual was voluntary for agents, except as required for compliance with state law. Agents who chose to use the Concord office were required to pay a fee for their workspace and telephone service. Arnold's minimal performance requirement to avoid automatic termination of her appointment was to submit one application for Mutual's products within each 180-day period. Thus, under the principal test for employment under common law principles, Mutual had no significant right to control the manner and means by which Arnold accomplished the results of the services she performed as one of Mutual's soliciting agents.

Slip op., at 9-10.

It's easy to armchair quarterback, but the factual record described by the Court does not seem like the optimal factual record on which to test this issue. Then again, when I appealed Alvarez, I'm sure many people said the same thing... Good thing the Supreme Court bailed me out years after the fact in another case.

"Actual cash value" isn't fair market value, says George v. Automobile Club of Southern California

The Complex Litigator — Wed, 11 Jan 2012 21:00:07 +0000

Here's one from the backlog stack, but it isn't too exciting, so you didn't miss much. In George v. Automobile Club of Southern California (December 12, 2011), the Court of Appeal (Second Appellate District, Division Eight) reviewed the trial court's decision to sustain a demurrer without leave to amend in a putative class action alleging it was impropre for defendant to declare the "actual cash value" of a vehicle in an insurance policy but then refuse to pay that amount in the event of a total loss, instead paying the fair market value of the car at the time of the loss. The result didn't seem to be in doubt, based on the policy language noted by the trial court and Court of Apeal:

The declarations page, when read together with the rest of the policy, unambiguously provides that in the event of a total loss, the policy will pay the actual cash value of the car up to $25,000, less the deductible. The ordinary meaning of these words is that if the car is stolen and forever lost, the policy will pay the fair market value, or actual cash value, of the car on the date of the claim, less the deductible, but in any event, not more than $25,000.

Slip op., at 16. This isn't really a class action case in that the issue was solely one of contractual interpretation, but I include it as a cautionary note for anyone else looking into bringing such a claim.

Another arbitration-friendly decision from the U.S. Supreme Court in CompuCredit Corp. v. Greenwood

The Complex Litigator — Tue, 10 Jan 2012 19:33:57 +0000

Today the United States Supreme Court issued its decision in CompuCredit Corp. v. Greenwood (Jan. 10, 2012). At issue was whether a sentence in that act, at 15 U. S. C. §1679c(a), which says, "You have a right to sue a credit repair organization that violates the [Act]," preserves the right to sue in court. Because the Credit Repair Organizations Act is silent as to whether claims may be heard in an arbitration forum, the Court held, 8-1, that the arbitration agreement in question should be enforced according to its terms. Justice Ginsburg dissented strongly, and the short concurring opinion by Justices Sotomayor and Kagan stated that the case was a much closer call than the majority opinion suggests, noting good points raised in the dissenting opinion of Ginsburg. In particular there seems to be a strong disagreement about whether Congressional intent must be explicitly stated or may be inferred from a consistent set of statements suggesting a specific intent. Not much more to say about this, other than to note that its essentially a tautology that the majority gets to decide whether they see a clear Congressional intent or not. If they say there isn't an intent, then they are right by default.