Labor and Employment Law

Newly-Published Labor and Employment Cases

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Berroteran v. Superior Court (CA2/1 B296639 10/29/19) Admissibility of Former Employees’ Depositions

The Court of Appeal reversed the trial court’s exclusion of videotaped deposition testimony of nine of the Respondent’s employees and former employees.  The Court disagreed with the holding of Wahlgren v. Coleco Industries, Inc. (1984) 151 Cal.App.3d 543 (Wahlgren) to the extent it espouses a blanket proposition that a party has a different motive in examining a witness at a deposition than at trial and determined that the Respondent had the right and opportunity to cross‑examine its employees and former employees with a similar motive and interest. The Court opined that while a party’s motive and interest to cross-examine may potentially differ when the prior questioning occurs in a pre-trial deposition, Ford failed to demonstrate any such different motive or interest here.

Davis v. TWC Dealer Group, Inc. (CA1/2 A155030 10/30/19) Arbitration

The Court of Appeal affirmed the order of the trial court denying a petition to compel arbitration in an employment case, finding the arbitration agreement unconscionable. In affirming, the Court reminded the profession of the importance of candor toward the court. Specifically, the Court noted that the California Supreme Court’s recent decision in OTO LLC v. Kho (2019) 8 Cal.5th 111 was directly on point but neither party advised the Court of the decision, nor was either counsel familiar with Kho at oral argument despite a letter from the Court advising counsel they should be prepared to discuss the decision.

Stafford v. Attending Staff Assn. etc. (CA2/2 B288008 10/30/19) Suspension of Clinical Privileges

The Court of Appeal held that the Respondent’s filing of an action in superior court before his administrative hearing process concluded did not forfeit the Respondent’s administrative remedy as a matter of law. The doctrine of exhaustion of administrative remedies precludes premature lawsuits; it does not mean that filing a premature lawsuit necessarily waives an administrative remedy.

O’Grady v. Merchant Exchange Productions, Inc(CA1/2 A148513 10/31/19) Service Charge/Gratuity

The Court of Appeal held that a mandatory charge imposed on banquet hall guests and labeled a “service charge” may be a “gratuity” that Labor Code section 351 requires to go only to the non-managerial employees involved with the actual serving of the food and beverages.

Bakersfield College v. Cal. Community College Athletic Assn. (CA3 C085099 10/31/19) Arbitration/Unconscionability

Agreeing with the trial court that “this was a close case,” the Court of Appeal found an arbitration agreement unconscionable because the College was unable to negotiate the terms of the contract at the time it was made, and the agreement required the College, but not the Association, to arbitrate covered disputes.

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