California Appellate Lawyer Blog

The California Supreme Court gave readers a "two-fer" when it issued its long-awaited opinion in Brinker Restaurant Corp. v. Superior Court (filed April 12, 2012) 2012 DJDAR 4615. As the court noted in its unanimous opinion, it granted review "to consider issues of significance to class actions generally and to meal and rest break class actions in particular."

Concerning class certifications, the court found that trial courts are not required in determining the issue of certification to resolve threshold disputes over the elements of a plaintiff's claims, unless necessarily dispositive of the certification question. Having said that, the state high court went on to address the "hot button" threshold disputes because the parties requested such, and impliedly because of the public interest involved. On the most debated of these disputes, the court ruled that an employer, while required to relieve its employees of all duties during a meal period, need not ensure that no work is done during this time. It also prescribed the proper interpretation concerning requirements of rate at which rest time must be permitted, and the timing of both rest and meal periods.

On the separate issue of off-the-clock certification, the high court saw no substantial evidence pointing to a uniform, companywide proof of employees performing work while clocked out during meal periods; the trial court's ruling that common questions predominate justifying class treatment was not supported by substantial evidence.

The Supreme Court took a more generous view than the Court of Appeal in interpreting the applicable rest time rate provisions. While the lower appellate court saw employees as entitled to 10 minutes of rest for shifts of 3 ½ hours or more and 20 minutes total for 7 ½ hours, the high court ruled the requirements as being 10 minutes for 3 ½ to 6 hour shifts and 20 minutes for 6 to 10 hour shifts. On the matter of timing of rest periods, the high court disagreed with the claim of the employees that a rest period must occur before any meal period.

Continue reading "Brinker: Clearing up some uncertainty in rest & meal period/ wage & hour class actions" »

In Rehmani v. Superior Court (Real Party: Ericsson, Inc)(filed March 29, 2012) 2012 DJDAR 4177, the Court of Appeal, Sixth Appellate District granted Rehmani's petition for writ of mandate and overturned the Santa Clara Country Superior Court's summary adjudication of Rehmani's claims of workplace harassment based on national origin and religion.

At issue in the appeal was Rehmani's allegation against employer Ericsson that it failed to ameliorate the hostile work environment that existed as a result of abuse he suffered from 3 fellow employees. Rehmani is a Muslim of Pakistani origin; the fellow employees are of Indian origin. He claimed that, because of his national origin and religion, the others were rude, dismissive and hostile; they were unwilling to help him with his projects and made comments concerning the hostile relationship between Pakistan and India. Specific comments included one about the need for India to bomb Pakistani terrorists; a comment that if the fellow worker did not assist him, would he "blow me up?" and a prank birthday party for Rehmani while he was away from the office "celebrating 9/11 and planning terrorist attacks."

To prove entitlement to a summary adjudication of dismissal of these harassment claims, Ericsson needed to establish that Rehmani could not show not only a hostile work environment, but also its failure as his employer to respond with appropriate corrective action. Ericcson asserted in the trial court that the incidents were isolated and not caused by Rehmani's religion or national origin, and not so severe or pervasive as to constitute a hostile environment. Concerning corrective actions, Ericsson set forth evidence that none of the fellow employees were managers, and that Rehmani's complaints to his superiors never asserted (1) "harassment" or "discrimination", and (2) he never said his alleged mistreatment was due to his being Pakistani of Muslim. In any event, Ericsson conducted an investigation and concluded there was no discrimination or harassment, and warned employees against conduct like the 9-11 prank.

Continue reading "Summary adjudication of employment harassment claims reversed because aggregate of evidence may factually support a claim" »

In the morass of paperwork accompanying the start of employment, an employer may ask the employee to sign multiple documents discussing arbitration: an employee handbook, an employer alternative resolution policy statement, and/or the contract of employment may be among the many documents. Which executed document concerning arbitration controls if their content differs?

This question is presented in Grey v. American Management Services (filed March 28, 2012) 2012 DJDAR 4075. When plaintiff applied for employment, defendant provided him with an application packet that contained an Issue Resolution Agreement (IRA) which he signed. The IRA required arbitration of any claim "arising out of or [in] relation to [the] application or candidacy of employment." After he accepted employment, plaintiff signed an employment contract that required arbitration of "a dispute arising out of the alleged breach of any provision of this Agreement." Plaintiff was terminated from his employment and filed a lawsuit primarily alleging employment discrimination and wrongful termination (no claim of "breach of contract"). Defendant successfully moved to compel arbitration, and the arbitrator found in its favor.

On appeal, the Court of Appeal, Second Appellate District, Division Four, reversed, finding that Grey was not required to submit his claims to arbitration under the terms of the employment contract.

The appellate court delineated the critical issue as whether the parties intended their writing (the employment agreement) to serve as the exclusive embodiment of their agreement. The employment agreement included an integration clause providing it was "the entire agreement of the parties and supersedes all prior and contemporaneous discussions and understandings."

Continue reading "Arbitration clause in employment contract superseded that in earlier agreement and made wrongful termination claim not subject to arbitration " »

"This case has a somewhat tortuous procedural history." With this introductory comment, the California Court of Appeal, Second Appellate District, Division Four, clues the reader in on what lies ahead in its opinion of Joaquin v. City of Los Angeles (filed January 23, 2012) 2012 DJDAR 939. And the facts are as tortuous as the procedural history. After briefly reviewing the facts and proceedings, I will share some thoughts on the reasoning that gets the court to its reversal (without remand) of the jury's $2.1 million verdict awarded Joaquin.

Richard Joaquin is a LAPD police officer who at times worked under Sergeant James Sands. A dispute arose between Joaquin and Sands, acting as Joaquin's watch commander, as to whether Joaquin had completed his work shift. Sands eventually directed disciplinary measures. Joaquin perceived Sands' actions as retaliation against Joaquin's rebuff of what Joaquin claimed were Sands sexual advances. Internal Affairs (IA) investigations found Joaquin's allegations unfounded.

Sands then lodged with IA his own complaint against Joaquin (for making false statements), resulting in proceedings before the Board of Rights, which put Joaquin's promotion to sergeant on hold.and temporarily relieved him of his duties. The Board found Joaquin guilty of misconduct concluding he retaliated against Sands by initiating a false complaint, resulting in 2006 in Joaquin's termination. As a result of writ proceedings, Joaquin succeeded in gaining reinstatement in 2009.

Continue reading "Insufficient evidence of employer's retaliatory intent arising from employee's allegation charging sexual harassment against supervisor" »

The Untied States Supreme Court has weighed in for the first time on the question of whether church ministers are exempt from the protection of employment discrimination statutes. In Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C. (filed Jan.10 2012) 2012 DJDAR 374, it concludes the First Amendment's Establishment and Free Exercise Clauses strike a balance between one's employment rights and "the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission;" acting as a bar to lawsuits under such statutes. The fact the High Court unanimously so ruled is not surprising. What appear to concern some commentators (see Daily Journal guest column of January 19, 2012 by Dean Erwin Chemerinsky) is that the specific facts of Hosanna-Tabor involved a person who was primarily an elementary school teacher at the private religious school operated by the church.

Cheryl Perich started as a lay teacher at the school in 1999. By the end of that first school year, she completed religious training that qualified her for a diploma and caused the school/church to call her as a commissioned minister of the church. She continued to teach secular subjects, and in addition taught a religious class 4 days a week and led chapel services twice a year.

In 2004, Perich took medical leave due to narcolepsy, at which time she was replaced by a lay teacher. Later in the school year, upon her notifying the school principal her condition had improved allowing her to return to work, the school administrators advised the church congregation she was unlikely to be physically able to perform her duties for 2 years; the congregation voted her a "peaceful release" from her call, that she would be deemed to have resigned in exchange for the church maintaining a portion of her health care premium. When Perich refused to accept these terms, she was terminated for insubordination. Perich complained to EEOC, which filed a law suit on her behalf.

Continue reading "Employment discrimination lawsuit brought by "called" teacher barred by ministerial exception under 1st Amendment freedom of religion " »

January 1st is often the date that employment laws enacted during the prior calendar year go into effect. While many new laws are widely publicized, others seem to slip by unnoticed until an employer is informed that it has violated some rule that it never knew existed. Two recent additions to the California Labor Code are of particular importance to businesses that use independent contractors and individuals who advise those business as to the appropriateness of independent contractor classifications.

Starting on January 1, 2012, newly added California Labor Code section 226.8 imposes penalties ranging from $5,000 to $15,000 against a person or employer who is found to have "willfully" misclassified an individual as an independent contractor. In situations where a person or employer is found to have engaged in a "pattern or practice" of misclassifying individuals as independent contractors, the penalty to be imposed ranges from $10,000 to $25,000. The penalty is assessed per individual misclassified and is in addition to all other penalties/fines permitted by law. Businesses have always known that evaluating independent contractor relationships can be tricky and the risks for misclassification are great due to potential problems under applicable tax and employment laws. However, these new penalties could potentially cripple a business that makes a mistake with respect to the classification of multiple individuals who all provide the same type of service to the business. In addition to the imposition of penalties, Section 226.8 authorizes the California Contractors State License Board to initiate disciplinary action against a licensee who is found to have "willfully" misclassified an individual as an independent contractor.

Continue reading "New Penalties For Misclassification Of Individuals As Independent Contractors" »

January 1st is often the date that laws enacted during the prior calendar year go into effect. While many new laws are widely publicized, others seem to slip by unnoticed until a business is informed that it has violated some rule that it never knew existed. One law, that is surprising a number of companies is the California Transparency in Supply Chains Act of 2010 (the "Act'). Signed by then Governor Arnold Schwarzenegger, the Act requires companies doing business in California to, by January 1, 2012, post information on their websites informing consumers what steps the company takes to ensure that its supply chains are free from slavery and human trafficking. Interestingly, unlike other laws, whether a company is subject to the Act is not determined by the number of individuals employed by the company or the fact that the company has contacts with areas of the world in which slavery and human trafficking are prevalent. Instead, the Act applies to all companies operating in California that have over 100 million dollars in annual worldwide gross receipts.

If a company satisfies the basic criteria to be covered under the Act, the company must post information on its website indicating what, if any, actions the company takes with respect to the following:
evaluating and addressing the risks of human trafficking and slavery in the company's product supply chains;

• requiring the company's direct suppliers to certify that the materials incorporated into company products comply with laws regarding slavery and human trafficking;
• conducting audits of the company's suppliers to evaluate compliance with company standards on human trafficking and slavery;
• maintaining accountability standards and procedures for employees or contractors that fail to meet the company's standards regarding slavery and human trafficking; and
• providing employees and managers, who have direct responsibility with supply chain management, with training on the mitigation of human trafficking and slavery risks.

Continue reading "Make Sure You Know Your Obligations Under The California Transparency In Supply Chains Act" »

January 1st is often the date that employment laws enacted during the prior calendar year go into effect. While many new laws are widely publicized, others seem to slip by unnoticed until an employer is informed that it has violated some rule it never knew existed. Even worse, an employer's obligations under certain laws are not fully identified until shortly before compliance is required. One such law that is causing a lot of confusion for California employers is the California Wage Theft Protection Act 2011 (the "Act"). Signed into law on October 9, 2011, the Act makes various changes to the California Labor Code including adding Section 2810.5. Section 2810.5 requires that starting on January 1, 2012, employers must provide all non-exempt California employees with a notice, given at the time of hire, which provides the following information:

• the rate or rates of pay and basis thereof, whether paid by the hour, shift, day, week, salary, piece, commission, or otherwise, including any rates for overtime, as applicable;
• allowances, if any, claimed as part of the minimum wage, including meal or lodging allowances;
• the regular payday designated by the employer in accordance with the requirements of the California Labor Code;
• the name of the employer, including any "doing business as" names used by the employer;
• the physical address of the employer's main office or principal place of business, and a mailing address, if different;
• the telephone number of the employer;
• the name, address, and telephone number of the employer's workers' compensation insurance carrier; and
• any other information the Labor Commissioner deems material and necessary.

While the specific disclosures identified in Section 2810.5 seem fairly clear, the "any other information the Labor Commissioner deems material and necessary" requirement has created a number of problems. As mandated by the Act, the Labor Commissioner has provided employers with a form Section 2810.5 notice that can be downloaded from the Labor Commissioner's website. However, the Labor Commissioner did not make the form notice available until the last week of December, 2011. Moreover, when the form notice was circulated, it became clear that the Labor Commissioner had added a number of disclosures not specifically identified in Section 2810.5. For instance, employers must also inform each new hire whether the employment relationship is governed by an oral or written contract and identify any other businesses or entities the employer uses to hire employees or administer wages/benefits. Since the Labor Commissioner did not issue the form notice until a few days before the new law went into effect, even those employers who knew about the requirements of Section 2810.5 were forced to scramble over the holiday weekend to revise their forms to make sure they covered all the information that had to be disclosed. Unfortunately, there are still many employers that do not know about the new information required by the Labor Commissioner or have no idea that non-exempt new hires must now be given the information discussed above. Given the risks associated with an employer's failure to comply with the requirements of Section 2810.5, it is recommended that all employers discuss the new disclosure requirements with legal counsel and determine how best to proceed.

Continue reading "New Disclosure Requirements Mandated By The California Labor Code" »

In Henry v. Red Hill Evangelical Church of Tustin (filed December 9, 2011) 2011 DJDAR 17734, plaintiff was terminated from her employment with defendant because she and her boyfriend continued to live together and raise their child without being married. Her lawsuit asserted violations of the California Fair Employment and Housing Act [Govt. Code section 12900, et seq. (FEHA)] and Title VII of the federal 1964 Civil Rights Act, and termination in violation of public policy.

The trial court heard the bifurcated initial portion of the case pertaining to defendant's defenses and found the "ministerial exception" applied precluding plaintiff from prevailing. The California Court of Appeal, Fourth Appellate District, Division Three, affirmed, determining defendant church is exempt under each of FEHA and Title VII, and that the ministerial exception additionally precludes plaintiff's public policy cause of action.

Plaintiff Sara Henry was an at-will employee of defendant church's pre-school (a part of the church's ministry) for nearly 7 years, acting as a teacher and most recently performing the additional duties of "director." She agreed in writing that her duties were "God-ordained" and pledged her "prayer, support, and assistance" to families participating in this "ministry" of the church. In addition to serving as a Christian role model, her responsibilities included teaching religion and secular subjects to pre-schoolers, conducting devotional times weekly and chapel services three to four times during the year, giving weekly tours to parents of prospective students emphasizing that Bible based Christian values were taught, and handling administrative chores.

Defendant terminated plaintiff's employment several months after it learned of her living with her boyfriend and child without benefit of marriage. She was counseled prior to termination and acknowledged her living arrangement was contrary to the teachings of the Bible; that she intended to marry her boyfriend but did not know when.

Continue reading "Teacher/director terminated at church's preschool for violating church's marital precepts is not protected by FEHA, Title VII or public policy" »

California Labor Code section 2802, subdivision (a), requires that an employer "indemnify" an employee for all necessary costs incurred as a direct consequence of the employee's discharge of employment duties. Does the employer's duty to indemnify include attorney fees incurred in defending an action brought by the employer, or only in an action instituted by a third party? In a case of first impression, the California Court of Appeal, Fourth Appellate District, Division Three, held this statute does not require an employer to pay the attorney fees incurred in the employee's successful defense of employer's action. [Nicholas Laboratories, LLC v. Chen (filed October 12, 2011) 2011 DJDAR 15153.]

Christopher Chen was employed as director of information technology for Nicholas Labs. Nicholas sued Chen primarily for competing against it and misusing its funds. Chen cross-complained for compensatory damages and indemnity, as well as attorney fees. After a bench trial, the Orange County Superior Court entered judgment for Chen on Nicholas's complaint, and for Nicholas on Chen's cross-complaint. Chen appealed.

The appellate court found that Chen's interpretation of section 2802 (that because he was being sued by his employer for his actions as an employee, the statute required that he be indemnified for his attorney fees in successfully defending the lawsuit) conflicts with the common understanding of the word "indemnify": applying to an obligation to pay the costs incurred in a lawsuit brought by a third party. The court acknowledged that this general rule does not apply if the parties to a contract use the term "indemnity" to include direct liability as well as third party liability or a statute expressly so provides.

Continue reading "Employee's attorney fees in successfully defending action brought by employer not recoverable under statutory indemnity" »

Most lawyers remember from their law school course in evidence the cardinal notion that a plaintiff or prosecutor should not be allowed to present evidence to show defendant is a bad person. But if this propensity evidence is offered for some other relevant purpose, it may be admissible. A recent opinion from California's Court of Appeal, Fifth Appellate District, gives employment law plaintiffs a weapon in asserting admissibility of evidence of workplace harassment or hostile environment, even if the bad act occurred outside the plaintiff's presence or knowledge; and even if it occurred at a time when plaintiff was not even employed by this employer.

In Pantoja v. Anton (filed August 9, 2011) 2011 DJDAR 11962, plaintiff alleged former employer Anton, a lawyer, committed various harassing acts against her including slapping her on the buttocks, offering her money for a massage right after he touched her leg, calling her a "stupid bitch," and referring to various employees as "my Mexicans." At trial, defendant was granted motions in limine including one excluding all evidence of acts of discrimination or harassment unless plaintiff personally observed the acts. The trial court granted the motions. The trial proceeded and, at its conclusion, the jury found for the defense; in its special verdict, the jury found plaintiff was not subjected to unwanted harassing conduct because she was a woman and that her gender was not a motivating reason for her discharge.

The Court of Appeal reversed the judgment. It found that the trial court abused its discretion in excluding what it called "me-too" evidence. The context here includes that defendant admitted he was not shy about using profanity and vulgarity, but that none of that was done in a discriminatory way. The appellate court notes anti-discrimination legislation is not a "civility code and is 'not designed to rid the workplace of vulgarity.'" (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 295.) And the court recognizes it would be improper to show defendant had a propensity of harassing women. But in this case, the me-too evidence would show instead that he harbored a discriminatory intent or bias against women or an ethnic group, a matter of proof made relevant by defendant's defense of the case. It also went to the credibility of defendant's testimony that he did not discriminate.

Continue reading "Harassing activity committed by employer-defendant outside plaintiff's presence admissible to show intent" »

Employers should know the answer to this question is particularly important when an employee leaves and claims a right to deferred compensation. California Labor Code sections 227.3 require employers to pay employees the balance of "vested vacation time" unused as wages. The California Supreme Court has explained what is meant by vested vacation time: whatever amount of time the employee has labored, where the person is entitled to a certain number of vacation days per year of employment, the consideration is the duration of employment past, making unused vacation time deferred compensation which vests pro rata as the employee renders service. (Suastez v. Plastic Dress-up Co.(1982) 31 Cal.3d 774, 779-781.) The state's Labor Commissioner became concerned that employers would disguise vacation time as sabbatical time to avoid this requirement and issued opinion letters enforceable through the Department of Labor Standards and Enforcement (DLSE). The appellate opinion discussed below examines the DLSE test that emerged and determines the first-impression, threshold question of how to distinguish legitimate sabbatical from vacation.

In Eric Paton v. Advanced Micro Devices,Inc. (opinion filed August 5, 2011) 2011 DJDAR 11831, plaintiff sued defendant employer as a representative class member for defendant's failure to pay him for an eight-week "sabbatical" he had earned yet had not used by the time he resigned. Defendant filed a motion for summary judgment in the Santa Clara County Superior Court, arguing the plaintiff's sabbatical benefit is not vacation within the meaning of Labor Code section 227.3. The trial court granted defendant's motion and ordered judgment in defendant's favor.

The Court of Appeal, Sixth Appellate District, reversed, finding that there are triable issues of fact that should be decided by a jury. The appellate court identified four factors (the first three as found in the DLSE test) that would tend to show that a sabbatical program is not regular vacation: (1) leave that is granted infrequently, (2) length adequate to achieve employers purpose of enhancing employee's performance upon return, (3) this leave is in addition to regular vacation leave that is comparable to the average vacation leave in the relevant market, and (4) some feature that demonstrates the employee is expected to return to work.

Continue reading "Is that "sabbatical" in your employment contract really a "vacation?"" »

We have here yet another opinion where an arbitration clause strikes out. Not surprising, in the light of the California Supreme Court "crack-down" more than a decade ago in Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 114.

Zullo v. Superior Court (filed June 21, 2011, certified for publication July 12, 2011) 2011 DJDAR 10519 came before the Court of Appeal, 6th Appellate District on petition for writ of mandate after the Santa Clara Superior Court granted the petition to compel arbitration filed by real party in interest, Inland Valley Publishing, Inc, petitoner Zullo's former employer, who had been sued for wrongful termination under California's Fair Employment and Housing Act (Government Code section 12920 et seq. (FEHA). After staying the arbitration and issuing an order to show cause, the appellate court granted the petition and issued a writ vacating the trial order with directions to deny the motion, allowing plaintiff's court action to proceed.

The Court of Appeal found that the purported agreement was actually an employer policy, implemented like the rest of the policies in the employer handbook, on a take it or leave it basis. The arbitration clause was on page 54 of a 58-page handbook and made arbitration the exclusive means to resolve any dispute an employee might raise arising out of termination of employment. Petitioner had signed an "acknowledgement of receipt" of the handbook. Petitioner claimed the clause was unconscionable as an adhesion contract and relied upon the Armendariz case which set forth a procedural element (oppression and surprise) and a substantive element (overly harsh or unjustifiable result).

Continue reading "Employee handbook not a good place for an arbitration clause: ruled unenforceable as "take it or leave it" " »

CarMax instituted a pay plan for its sales consultants designed to avoid an incentive for salespersons to push customers to higher-priced vehicles. Rather than include in the salesperson's compensation package a percentage of the person's total dollars of sales, it would pay the employee a fixed payment for each vehicle sold. California Labor Code section 1194 requires employers to pay overtime; there is however an exemption if such a salesperson earns more than one-and-one-half times the minimum wage and "commissions" constitute more than one-half of the person's compensation.

In Areso v. CarMax, Inc (filed May 23, 2011) 2011 DJDAR 7271, plaintiff filed a class action primarily alleging that defendant failed to pay overtime to sales consultants. Her total pay and total per-car compensation (at the rate of $154 per car sold) exceeded the threshold requirements of the commissioned sales exemptions if her per-car compensation constituted a "commission." She argued this was not a commission. Defendant claimed it was, and moved for summary adjudication of this particular cause of action accordingly. The trial court granted the motion and the Court of Appeal, Second Appellate District, Division One, affirmed.

Because the summary adjudication disposed of only the first of six causes of action, the Court of Appeal first addressed the issue of appealability. (See my discussion in June 2 blog.) The second cause of action had previously been dismissed with prejudice, however the remaining ones were dismissed at plaintiff's request without prejudice. The court noted that a voluntary dismissal without prejudice generally is not a final judgment appealable on the merits, however, if the remaining causes of action are purely ancillary, the matter is appealable. Here one of the remaining causes of actions was not ancillary, but because the court found plaintiff's appellate brief had effectively waived her right to proceed on that action, the court cured the issue of a remaining cause of action by exercising its discretion to amend the judgment to reflect that the remaining cause of action was dismissed with prejudice.

Continue reading "Uniform Payment for Each Car Sold Constitutes "Commission" in Determining Car- Dealer Employee is Exempt from Overtime Pay " »

In re Lamps Plus Overtime Cases (filed May 10, 2011) 2011 DJDAR 6615 involved a chain of 29 stores in California being sued by three employees in its San Rafael store on behalf of themselves and similarly situated parties for alleged violations of labor laws including those pertaining to meal and rest breaks, the prohibition of off-the-clock work, and failure to provide itemized and timely wage payments. The Los Angeles Superior Court denied plaintiffs' motion for class certification. The California Court of Appeal, Second Appellate District, Division Eight, affirmed that order.

Plaintiffs' motion estimated putative class membership of 2,608 current and former employees. While the trial court was satisfied that the plaintiffs had established numerosity and ascertainability of the class, it concluded that individual issues predominated over common issues, in part because employers need only authorize and permit meal and rest breaks rather than ensure they are taken. In noting that there are presently two cases before the California Supreme Court on whether California law requires employers to ensure these breaks (Brinker Restaurant v. S.C. and Brinkley v. Public Storage), the appellate court agreed with the trial court, strongly stating its view that "(t)he notion that an employer must ensure all employees take their meal periods is utterly impractical," and that the plaintiffs' view of the law "does not make sense."

California Labor Code section 226.7, subdivision (a), for example, states that "[N]o employer shall require any employee to work during any meal or rest period." But this mandatory language, notes the court, is mandatory only as to providing breaks, not ensuring that breaks are actually taken." This interpretation is consistent with Federal court cases cited. Thus, class-treatment of this issue as proposed by plaintiff was not warranted. Regarding off-the-clock claims and asserted payroll violations, from the factual showing presented in the motion, these claim necessarily involved a fact-intensive investigation of each employee's individual circumstances.

A potential impact of this opinion is the encouragement of defense counsel wanting to avoid massive class action certifications by searching for and presenting facts that demonstrate any uniqueness in the claims of named and putative class members.

As someone who served nearly 21 years on the Court of Appeal, I am particularly struck by the boldness with which the appellate justices here reject plaintiffs' threshold argument in this case, while that issue is still pending before the Supreme Court. I think they are correct and credit their forthrightness, but most justices like to hedge their bets a bit.