Christman, Kelley & Clarke - Expert Witness Fees Are Available Under California Fair Employment and Housing Act (FEHA)

Litigation attorneys frequently think about making a settlement offer under Code of Civil Procedure section 998.  If the defendant does not accept the offer and the plaintiff achieves a result that is greater than the offer, the Court can award expert witness fees.  Let's face it - expert witnesses represent a large portion of the overhead costs in civil litigation.  Frequently, expert witness fees can exceed $20,000 even in a straightforward case. 

Now let's turn to employment cases under California's Fair Employment and Housing Act ("FEHA"). Under FEHA, section 12965, "In civil actions brought under this section, the court, in its discretion, may award to the prevailing party, including the department, reasonable attorney’s fees and costs, including expert witness fees."  

Plaintiffs and practitioners alike should keep this important provision in mind even if an offer to settle under Code of Civil Procedure section 998 was made.

The California Court of Appeal Chips Away at the U.S. Supreme Court’s Decision in AT&T Mobility LLC v. Concepcion, et ux.

The California Court of Appeal Chips Away at the U.S. Supreme Court’s Decision in AT&T Mobility LLC v. Concepcion, et ux. [1]

By: Matthew M. Clarke

On April 27, 2011, the United States Supreme Court decided AT&T Mobility LLC v. Concepcion[2]  by a 5 to 4 vote.  That decision established that the Federal Arbitration Act of 1925 preempts California laws that prohibit contracts from disallowing class action lawsuits.  AT&T dealt specifically with Discover Bank v. Superior Court (2005) 36 Cal.4th 148, which disallowed a class action waiver because it would insulate the defendant from liability, among other things.

In other words class action waivers are now permitted in California.  This decision was a huge setback for California consumer class action litigation.  Robert Curtis of Foley, Bezek, Behle & Curtis commented that many consumer class actions have already been dismissed as a result of this decision.

In Brown v. Ralphs Grocery Company, Case No. B222689, July 12, 2011, Second District, Division 5, the trial court refused to compel the plaintiff in a class action and Private Attorney General Act (“PAGA”) case to arbitrate her individual claims.  The Court of Appeal held that the AT&T decision “does not apply to representative actions under PAGA . . . .”

The arbitration provision that Ralphs had its employees sign stated in relevant part:

• “[t]his Arbitration Policy applies to any and all employment-related disputes that exist or arise between Employees and Ralphs … that would constitute cognizable claims or causes of action in a federal, state or local court or agency under applicable federal, state or local laws (referred to in this Arbitration Policy as ‘Covered Disputes’).”
• “[t]here is no right or authority for any Covered Disputes to be heard or arbitrated on a class action basis, as a private attorney general, or on bases involving claims or disputes brought in a representative capacity on behalf of the general public, of other Ralphs [Grocery Company] employees (or any of them), or of other persons alleged to be similarly situated. . . . [T]here are no judge or jury trials and there are no class actions or Representative Actions permitted under this Arbitration Policy.”

Ruling on the issue before the AT&T decision, the trial court in Brown found that the class action waiver was invalid.  It also found that the PAGA waiver was unconscionable, and that the two provisions together rendered the entire agreement unenforceable.

Ralphs appealed.  The AT&T decision came out while Brown was on appeal.  Ralphs’ counsel argued that the AT&T decision applied to the PAGA waiver and the class action waiver.  The Court rejected Ralphs’ argument.

The Court in Brown reasoned that class action lawsuits and representative actions are very different.  Representative actions under the California Labor Code allow one aggrieved party to act as a private attorney general to recover civil penalties on behalf “of himself and other current or former employees.”

While that may sound like a class action, California law establishes that a representative action is not subject to the same requirements as a true class action.  In private attorney general suits, the individual plaintiff acts as the “proxy or agent of state labor law enforcement agencies representing the same legal right and interest as those agencies in a proceeding that is designed to protect the public, not the benefit private parties … AT&T does not purport to deal with the FAA’s possible preemption of contractual efforts to eliminate representative private attorney general actions to enforce the Labor Code.”

Importantly, Brown characterized the right to bring a private attorney general suit as a public right, not a private right which can be waived by agreement.  The Court inBrown even cited to one of the venerable “Maxims of Jurisprudence” found in the back of the Civil Code: “a law established for a public reason cannot be contravened by a private agreement.”  (Civil Code § 3513).  For now, PAGA claims under the California Labor Code may not be waived and are not subject to the AT&T decision.

While not addressed in Brown, does it follow that other representative actions are immune from the decision in AT&T?  For example, both the Consumer Legal Remedies Act, Civil Code section 1750 et seq., and the Unfair Competition Law, Business and Professions Code section 17200 et seq. allow representative actions.  Only time will tell.

Matthew M. Clarke is former Editor of Santa Barbara Lawyer and a partner in Christman, Kelley & Clarke, a civil litigation law firm in Santa Barbara.

Causation in Wrongful Termination Cases - "Substantial Motivating Factor/Reason"

Matthew Clarke
Christman, Kelley & Clarke, PC

January 14, 2014:  Another trial court has run afoul of the proper legal standard for causation in wrongful termination cases.  In MENDOZA v. WESTERN MEDICAL CENTER SANTA ANA, the plaintiff/employee claimed his report of sexual harassment caused defendant/employer to fire him. He alleged that defendants retaliated against Mendoza for accusing his superior of sexual harassment.  Defendants, on the other hand, claimed that Mendoza willingly participated in sexual misconduct on the job as their motivation for firing Mendoza.

Defendants claimed Mendoza’s report only “caused” his firing by bringing his misconduct to his employer's attention.  Defendants concede it is against public policy to fire employees because they report actual sexual harassment.  The Defendant argued that it is not against public policy for employers to fire
employees after the employer determines in good faith that the employee actually participated in sexual misconduct on the job.

The main issue on appeal was the jury instruction on causation.  First, the instruction read: "That Romeo Mendoza’s report of sexual harassment by Del Erdmann was the motivating reason for Romeo Mendoza’s discharge.” (bold/underlining added.)

This instruction modified the 2012 version of CACI No. 2430 by substituting "the motivating reason” rather than “a motivating reason”).

The special verdict form submitted to the jury was even worse for the employee: “Was Romeo Mendoza’s report of sexual harassment by Del Erdman the reason for [defendants’] decision to discharge Romeo Mendoza.” (Italics added.)

This also changed the CACI verdict form from “a motivating reason” to “the motivating reason” or “the reason”.  The jury would be left with the idea that the plaintiff's burden could only be satisfied if there were only one reason motivating the decision to fire Mendoza.

The jury submitted a question on this very topic.  The trial court clarified:   "Pursuant to the Jury Instruction . . . , the plaintiff must prove that his 
report of Sexual Harassment was a motivating reason for his discharge."  This was based on the 2012 version of the CACI forms.

The language of CACI 2430, Effective on June 2013, provides: “That [wrongful conduct inserted] was a substantial motivating reason for [name of plaintiff]’s discharge.” The corresponding special verdict form also inserted updated language (“a substantial motivating reason”). (CACI No. VF-2406.) This is the language approved by the California Supreme Court in Harris v. City of 
Santa Monica (2013) 56 Cal.4th 203.

Read the opinion here: http://www.courts.ca.gov/opinions/documents/G047394.PDF

Christman, Kelley & Clarke settles sexual harassment lawsuit brought against well-known commercial cleaning franchisee

Five women were subjected to horrible "hands on" sexual harassment by the same supervisor over the course of many months.  Christman, Kelley & Clarke fought for these women for over a year of litigation in Santa Barbara Superior Court.  On the eve of trial, the company agreed to a structured settlement for these victims of sexual harassment, allowing them to move-on with their lives.

Christman, Kelley & Clarke Wins Reinstatement for County of Santa Barbara Employee

Christman, Kelley & Clarke attorney Matthew Clarke convinced the Santa Barbara County Civil Service Commission that the County of Santa Barbara wrongfully terminated a high level county employee.  After a full evidentiary hearing and less than one hour of deliberations, the Commissioners unanimously reinstated the firm's client with back pay.  The employee and was otherwise ordered to be made whole by the County.  CKC's motion for attorney fees in now pending.

Contact us here with questions or comments.

Christman, Kelley & Clarke Wins Sexual Harassment Trial Against a 7-Eleven franchisee

Some cases have to be tried.  Christman, Kelley & Clarke shareholder Matthew Clarke headed the trial team along with associate Matthew Mong against 7-Eleven franchisees in a eight day trial in Santa Maria, California. Christman, Kelley & Clarke prevailed in the trial obtaining money damages for the client.  More importantly, the client's rights were vindicate and a strong message sent to the 7-Eleven franchisee that sexual harassment in the workplace will not be tolerated.  The firm's motion for attorney fee is now pending before the court.

7-Eleven, the franchisor, settled before the trial started.

Christman, Kelley & Clarke - discussion about Texas employment law

With offices in Santa Barbara, California and Dallas, Texas, the firm can handle employment matters for both employers and employees in both states.

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