Troester v. Starbucks Corporation has been set for oral argument before the California Supreme Court on Tuesday, May 1, 2018, at 9:00 a.m., in San Francisco.
The DOJ announced on Friday, June 16, 2017, that it was reversing its position on the validity of class action waivers in arbitration agreements and would file an amicus brief in support of the employer's position in NLRB v. Murphy Oil. I get that a change in administration can bring with it a change in policy, but this is unfortunate in that it overtly politicizes a legal analysis that should at least attempt to be a textual analysis that doesn't depend on which way the wind blows. I suppose Judge Posner has the right of it when he argues that all the supposedly dispassionate judicial reasoning is just a veneer over personal preference and wanting anything as significant as this issue to be decided apolitically is laughably naive. Still, I think the better approach for the DOJ would have been to undertake the equivalent of a noisy withdrawal, officially retracting its position and choosing to take a neutral position in the case.
As Captain Renault said, "I'm shocked, shocked, to find that gambling is going on in here!" And like Captain Renault, not really. On the last day of 2013, I noted in a post some news stories about the happenings in a class action suit alleging a scheme to transform most or all of $6 million settlement into attorney's fees without fully disclosing the scheme to roughly 600 clients until it was too late for them to do anything about it. Those articles were eye-opening to say the least. But now I can safely say that you haven't seen anything yet. I have in my digital fingers the appellate briefs from the main case (the appeal of an injunction issued by the trial court). The Respondent's Brief, in particular, is something you won't see very often. Check them out:
2013 was a turbulent year in the class action world and in mine. As a result, there were some newsworthy stories I didn't have time to cover this past year. One such news story involves the transfer to Los Angeles County of a suit alleging a scheme to transform most or all of $6 million settlement into attorney's fees without fully disclosing the scheme to roughly 600 clients until it was too late for them to do anything about it. Here's how Courthouse News Service summed up the shocking allegations: "A California law firm accepted a $6 million 'secret settlement' of a labor class action against a bank, agreed to dismiss the claims without telling 600 clients, then tried to convert the whole settlement into legal fees, a class action claims in state court." Jamie Ross, Class Claims Lawyer Took 'Secret' $6M Deal, Courthouse News Service (October 22, 2012). Who would do such a thing? Courthouse News Service identified the defendants in the proposed class action suit: " Lead plaintiff Kendra Cutting sued Mark Yablonovich; an attorney in his law office . . . , and The Law Offices of Mark Yablonovich, in Alameda County Court." Ibid. It appears from the docket that the attorney in Mr. Yablonovich's office was dismissed with prejudice from the action not too long after it was filed.
Courthouse News Service wasn't alone in covering these disturbing allegations. For example, Law360 noted, "Because the Yablonovich lawyers allegedly did not first approve the deal with their clients, the Cutting complaint said the firm's actions represented a breach of fiduciary duty and legal malpractice." Scott Flaherty, LA Attys Sued Over 'Secret' $6M Wells Fargo OT Settlement, Law360.com (October 19, 2012).
Anyhow, in April 2013, Alameda sent this fine example of what not to do to clients to Los Angeles. I guess that Northern California felt that Los Angeles wasn't grimy enough already. You can read the original complaint here. Or, better yet, get the whole thing here. The case appears to be stayed while appeals involving Initiative Legal Group are pending. Those appeals can be viewed here and here. But you can check on the status of the L.A. Superior Court action by using the Case Summaries tool and entering case number BC512429.
I am informed that, beginning June 2013, there will be NO court reporters for civil matters in the Los Angeles Superior Court. Part-time court reporters will be laid off, and all full-time court reporters in civil will transfer to the criminal courts.
How much longer will we allow the two funded branches of government to continue down this path? This is not constitutional. Also, please be advised that I am not interested in hearing that California doesn't have enough money to correctly fund the Courts. We have plenty of money. The federal government has plenty of money (the highest tax receipts in history this year). Lots of money. Money everywhere. It's how they SPEND that money. Rather, it is how WE spend that money, since we own the bums running things off the cliff for us. That's the problem - how the money is spent. If the constitution of this state is to be treated like a bird cage liner, then it is no wonder that the institutions built upon it all look like crap now.
I wonder how much longer we will be able to retain the best of our judges.
A story first made the rounds quietly in November of last year about a proposed ethics rule that is just broad enough and vague enough that it can be used as a tool by AOC to punish any judge with the gumption to criticize decisions of the AOC. That rule has passed, unsurprisingly (Note: when you see a news report that something entirely likely to occur is "unexpected," that should tip you off to the agenda of the reporter, not that the event was "unexpected"). It was entirely expected that it would pass. It was proposed to stifle dissent by using the costs associated with an ethics inquiry to shut down free speech.
We have two simultaneous problems in California's judicial branch of government, a constitutional and co-equal branch. First, the judicial branch is catastrophically underfunded. The Los Angeles Superior Court should not be shutting down courtrooms. A member of the bench who shall remain nameless told me that with the coming courtroom closures in Los Angeles, the average caseload that is currently running somewhere between 550 and 600 cases per judge will jump by about 150 cases per courtroom. What sort of justice will anyone receive under those conditions?
Second, the AOC has ballooned into a bloated bureaucracy that serves itself. Why did the AOC mushroom from 100 employees to well over 1,000 employees inside of a decade? Fixing this bloat would save some money. Getting rid of the endless boondoggle of the unicorn known as CCMS saved some money, but it doesn't close the gap between current funding levels and what those levels should be at to have courts in each county that can manage the caseloads they face. I don't know the right caseload for a civil trial court, but it isn't 550 case, and it surely isn't 700 cases. You'd probably receive real attention and a better measure of justice if those caseloads were more like 250-300 cases per courtroom.
I condemn the current and past legislatures for allowing this to happen. I condemn AOC for succumbing to corruption and administrative bloat (I refer to the allegation of embezzlement in the alleged amount of $100,000 that was not reported or charged as an example of that).
So to the massive audience of Legislators reading this and waiting for my go-signal, here it is: Fix the funding shortfall (who cares if you have to cancel a high speed train to do it - this is a co-equal branch of government we're talking about) and root out the administrative bloat (in other words, start insisting upon the firing of AOC staff until you have half the number you started at and then reassess, and then get rid of some more).
By the way, if someone handed me half the amount of money that was wasted on CCMS, I could have a Statewide court system database up and running in a few years, with enough left for me to retire on in a castle that I would have constructed out of rare marble on my own private island.
While I reported on two depublication orders on Wednesday, other activity of note occured at the California Supreme Court's Weekly Conference hed on December 14, 2012. The Court Granted a Petition for Review in Reyes v. Liberman Broadcasting (in which the Court of Appeal reversed the denial of a petition to compel arbitration) and Ordered the matter Held pending the outcome of Iskanian. Many years from now we may know more about the extent to which arbitration agreements will be enforced in different settings.
Yesterday, Governor Brown's rosy revenue projections ran smack into the brick wall of reality. California's budgetary deficit isn't the paltry $9 billion predicted by the Governor. Heck, we could have found $9 billion in the state's couch cushions. No problem.
Instead, our deficit, thanks to the inexcusable fiscal malfeasance of years of legislators spending beyond our means, and the inexcusable electorate allowing them to do so, is more like $16 billion. That's billion with a "B." This year. A one-year deficit against a $91 billion budget.
The solution proposed by the Governor is to (1) tax us more than we already are, and (2) cut stuff. What gets cut? As far as our constitutionally created branch of government knows as the judiciary is concerned, the cut proposed is another $544 million from the courts budget, which has already lost $650 million over the last three years.
One retired judge recently told me that the Los Angeles Superior Court is just rearranging deck chairs on the Titanic. But, for the most part, the leaders of the Courts, while complaining loudly about the cuts, are too political to take on the Legislature and Governor over this constutional crisis.
Where is the leadership? When are the advocates of Court access and the constitutional scholars and the judges crushed under this unchecked robbery going to stand up and demand that the third branch of government receive the first distribution of funds, regardless of what revenue is available. The Courts are entitled to protected funds sufficient to discharge their constitutional role in California.
See, for example, coverage in the Los Angeles Times.
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.
I have written previously about the unconstitutionality of underfunding California's Courts, including a Daily Journal article posted here. And with every additional funding cut, I believe that the legislative and executive branches march further down the path of unconstitutional conduct. In the latest example of grevious injury to our Courts, the Los Angeles Superior Court has announced $30 million in additional cuts (about $70 million in prior cuts). These cuts include the loss of 56 courtrooms, layoffs of 100 additional non-courtroom staff (above 329 layoffs and 229 attrition-based reductions), and a significant reduction in court reporter availability.
It is my fondest wish that a victim of these latest layoffs, a litigant, and a judge will all step forward and challenge the constitutionality of starving a co-equal branch of government. Where are the checks and balances when one allegedly equal branch exists at the mercy of politicians that refuse to make the tough choices necessary to ensure, as a first priority, that the judicial branch is capable fo resolving the legal disputes it was created to resolve?
Regardless of whether you represent plaintiffs, or defendants, civil litigants or those charged with crimes, you cannot acquiesce to this relentless assault on fundamental, constitutional rights. This is not a political question. The California legislature is not constitutionally empowered to eviscerate the judicial branch.
Write your legislators. Tell them that they must discharge their constitutional obligations before any other consideration.
And no, this is not the end of my rant. It's just a pause...