a California-centric collection of comments and resources about complex litigation and class action practice
Episode 32 of the Class Re-Action Podcast is now out. We discuss Magadia v. Wal-Mart Associates, Inc. (9th Cir. May 28, 2021). And I try to get Linh to let me explain California’s wage & hour laws to employers, but she doesn’t let me.
Episode 31 of the Class Re-Action Podcast is now out. We discuss Donohue v. AMN Services, LLC (February 25, 2021). And Killer Robot Dogs. And my eventual Evil Mastermind lair in a secret glacier base.
I though I would call this one out just because UCL cases don’t usually arrive so contemporaneously with current events. In Murphy v. Twitter, Inc. (Jan. 22, 2021), the Court of Appeal (First Appellate District, Division One) examined claims, including a UCL claim, that Twitter violated users’ rights by permanently suspending accounts.
Without getting deep into the discussion provided by the Court, it should not be surprising that the Court found that Section 230 of the Communications Decency Act of 1996 provided broad immunity for Twitter’s editorial functions. Of course, this just highlights the incongruity of how Section 230 works, since its passage was predicated on the promise by large tech companies that they would not behave like traditional publishers in exchange for the grant of immunity for what users post on their platforms. Right now, Twitter (and Facebook, and others) get immunity that other publishers do not AND they are restricting content on a viewpoint basis.
Interestingly, and with an astounding bit of hubris, Twitter argued that the Plaintiff’s claims violated the First Amendment. The Court declined to address the constitutional question when Section 230 was sufficient to resolve the case in the Court’s view. I just think that’s pretty ballsy of Twitter to throw the First Amendment argument out there when it denies that users have any such rights (and there is a good argument that it is wrong about that, now that it has decided to act as a partisan favoring one political party over another).
As opinions go these days, the California Supreme Court’s opinion in Vasquez v. Jan-Pro Franchising International, Inc. (Jan. 14, 2021) is a short one, at about 16 pages of actual text. It is also a unanimous opinion. The Ninth Circuit asked the Supreme Court to answer whether the Court’s decision in Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th 903 (Dynamex) applies retroactively. The California Supreme Court concluded that it was retroactive in application:
In concluding that the standard set forth in Dynamex applies retroactively — that is, to all cases not yet final as of the date our decision in Dynamex became final — we rely primarily on the fact that Dynamex addressed an issue of first impression. It did not change a settled rule on which the parties below had relied. No decision of this court prior to Dynamex had determined how the “suffer or permit to work” definition in California’s wage orders should be applied in distinguishing employees from independent contractors. Particularly because we had not previously issued a definitive ruling on the issue addressed in Dynamex, we see no reason to depart from the general rule that judicial decisions are given retroactive effect.
Slip op., at 2. Read the decision if you want to know all about the general rule of retroactive effect and issues of first impression.
Tomorrow, in VAZQUEZ (GERARDO) et al. v. JAN-PRO FRANCHISING INTERNATIONAL, INC., Supreme Court Case No. S258191 ((9th Cir. No. 17-16096; 939 F.3d 1045; N.D. of Cal. No. 3:16-cv-05961-WHA), the California Supreme Court will answer the following question for the Ninth Circuit: Does the decision in Dynamex Operations West Inc. v. Superior Court (2018) 4 Cal.5th 903, apply retroactively?
Hear the wonders of our pontification of what happened with arbitration agreements in two recent decisions right here, in Episode 29 of the Class Re-Action podcast. After you listen, be sure to leave a comment about how unbelievably exciting the episode was, as well as your favorite flavor of Icee.
Hot off the presses, Episode 28 of the Class Re-Action podcast is here…for all your insomnia needs.
This is interesting. I draw your attention to Williams v. U.S. Bancorp Investments, Inc. (June 8, 2020), in which the Court of Appeal (First Appellate District, Division Four) concluded that collateral estoppel does not bar an absent member in a putative class that was initially certified, but later decertified, from subsequently pursuing an identical class action. The Court held that the reasoning of Smith v. Bayer Corp., 564 U.S. 299, 312–316 (2011) and Bridgeford v. Pacific Health Corp., 202 Cal. App. 4th 1034, 1041–1044 (2012) applied equally to this variation.
In the past two months I’ve had the pleasure of a 3:30 a.m. fire evacuation, multiple power outages thanks to the dipsticks in charge of SCE, a multi-week virus of some sort, and an internet outage in our area that left my poor child struggling to survive. Oh, the humanity! All of that combined with a cold Linh had to put us off track. Course corrected. We are back at it, despite some audio equipment problems today. Sigh. I need a new computer that can handle the piggish software from Adobe that I use.
Enjoy Episode 24. We discuss Naranjo v. Spectrum Security Services, Inc.
UPDATE: I did some more work on the audio. If your audio player already pulled the episode down on publication, you might want to delete it and reload the episode. I extracted more of the echo to make listening a bit less painful.
In Gonzalez v. San Gabriel Transit, Inc. (October 10, 2019), the Court of Appeal (Second Appellate District, Division Four) reversed and remanded on an appeal from the denial of class certification. Most of the opinion is about the impact of Dynamex, which adopted the “ABC test” after the trial court denied certification. There is some important analysis about what claims are encompassed by the “ABC test,” and the retroactive application. But I’m posting now just to draw attention to a sliver of discussion at the end of the opinion regarding typicality:
Also, SGT maintains that Gonzales’ claims are atypical because, “unlike other class members, [he] never leased a taxi during the class period.” But the class allegations are not premised on having “leased” a vehicle. Rather, Gonzales seeks more generally to certify a class of plaintiffs who “were engaged by [SGT] to drive passengers for hire,” and who “drove” for SGT during the class period, i.e., all “drivers employed by, or formerly employed by [SGT] . . . [during the class period], who were or are classified as independent contractors.” The common allegations of harm suffered by Gonzales and other drivers is that all were misclassified as independent contractors. As such, they were required at their own expense to install equipment and provide tools to access SGT’s dispatch system, and to obtain insurance and perform maintenance, all expenses Gonzales contends should properly be borne by their employer and were denied the benefits of wage order protections.
On remand, SGT must show that the variations in class members’ factual situations are sufficiently wide to defeat class certification. For instance, regardless of a driver’s status as lessee or owner/operator, drivers were charged weekly “lease” fees to perform services under the SGT umbrella. If and to the extent it is important that a driver owned rather than leased a vehicle—which may cause a variation in weekly “lease” rates, insurance, equipment installation fees, or some other business expense—such a difference would likely be a function of the damages to which an individual driver was entitled. That a calculation of individual damages will, at some point, be required does not foreclose the possibility of taking common evidence on the issue of misclassification questions. (Collins v. Rocha (1972) 7 Cal.3d 232, 238.) The overarching inquiry is whether class members were misclassified during the class period. If so, as discussed in the overlapping analysis of commonality above, the class members are entitled to a determination as to whether SGT misclassified them as independent contractors. The fact that individual members of the class have different damages does not preclude class certification. (Sav–On, supra, 34 Cal.4th at pp. 329–330.)
The trial court also alluded to the fact that Gonzales could not demonstrate typicality for the entire class because he never drove LAX or school runs. However, as we have noted, typicality does not require that a class representative have suffered injuries identical to those of other class members. (Martinez v. Joe’s Crab Shack Holdings, supra, 231 Cal.App.4th at p. 375.) Accordingly, the trial court must reevaluate whether the requirements for typicality are satisfied, and whether, given time limitations, the complaint may be amended to add an additional representative plaintiff.
Slip op., at 37-38. This discussion pushes back against a common argument used to try and “thin” a class action down to a subset of the members alleged to be a part of the class. The argument is frequently along the lines of “the plaintiff didn’t work in all of the job positions,” or “the plaintiff didn’t work at all of the locations.” This discussion doesn’t entirely reject such arguments, but it certainly undermines them substantially with a fact pattern that is not particularly unique in wage and hour class actions.
The Complex Litigator reports on developments in related areas of class action and complex litigation. It is a resource for legal professionals to use as a tool for examining different viewpoints related to changing legal precedent. H. Scott Leviant is the editor-in-chief and primary author of The Complex Litigator.
