Tag Archives: Law

Mar 25 2013
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Arbitration

Press Quotes About Analysis of Compton v. Superior Court

Armendariz: Besta Berri 2009 4906

Armendariz: Besta Berri 2009 4906 (Photo credit: dantzan)

The author’s analysis of the Compton v. Superior Court, No. B236669, — Cal.Rptr.3d —-, 2013 WL 1120619 (2d Dist. Mar 19, 2013), was quoted in legal press today:

“In both cases, the First and Second districts applied Armendariz and invalidated arbitration agreements for lack of mutuality,” said Charles Jung, a Nassiri & Jung LLP attorney. “At least as far as California courts are concerned, Armendariz is alive and well, and it appears that this is going to continue to be the case until the California Supreme Court overrules it.”

In light of the latest ruling, plaintiffs and their attorneys looking to defeat mandatory arbitration agreements will keep an eagle eye out for any type of one-sidedness, according to Jung.

“The Compton ruling creates an avenue for employees to argue that mandatory agreements are unlawfully one-sided and that under Armendariz, they should be stricken,” he said. “For employers, it suggests the way to make arbitration agreements enforceable is by making them simple and even-handed. Employers can’t have their cake and eat it too.”

“The California Supreme Court really has its work cut out for it,” Jung said. “The challenge for the California Supreme Court is to try to preserve what it can of California’s public policy, yet not fall afoul of and directly contradict or simply ignore the U.S. Supreme Court. It’s a very tricky position for the court to be in.”

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Feb 14 2012
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Trade Secrets

Trade Secrets Preemption Ruling: CUTSA Supersedes Common Law Claims Where Plaintiff Alleges a Confidentiality Agreement But Failed to Allege Defendant Was Bound by It

District Judge Jeffrey S. White of the Northern District of Californ

Una hembra de hamster ruso

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ia held that the California Uniform Trade Secret Act (“CUTSA”) superseded common law claims for misappropriation, conversion, unjust enrichment, and trespass to chattels.  Heller v. Cepia, L.L.C., No. C1101146JSW, 2012 WL 13572 (N.D. Cal. Jan. 4 2012) (slip op.).  Plaintiff alleged the existence of confidentiality agreements but not that defendants were bound by them.  Id.

Background

Plaintiff Heller was the sole proprietor of Floating Lightbulb Toys. Id. *1. He accused Cepia, A-Tech, The Bean and Ying Leung International Limited (“Ying Leung”) of misappropriating his trade secrets regarding his toy hamster project.  Id.  Cepia moved to dismiss Plaintiff’s claims for failure to state a claim and for sanctions under FRCP 11. Id. Plaintiff filed a counter-motion for sanctions against Cepia. Id. The Bean and A-Tech moved to dismiss based on lack of personal jurisdiction. Id.

Discussion

Cepia argued that Plaintiff’s common law claims were superseded by CUTSA. Id. Citing Silvaco Data Systems v. Intel Corp., 184 Cal.App.4th 210 (April 29, 2010), the court noted that “common law claims premised on the wrongful taking of information that does not qualify as a trade secret are also superseded, unless the plaintiff identifies some law which confers property rights protecting the information.”   Heller, 2012 WL 13572, at *1.

While Plaintiff argued that his confidential information that was not a trade secret is still property because he entered into agreements providing that any non-secret confidential and proprietary business information would remain his property. Id. The court disagreed, dismissing the common law claims: Continue reading →

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Aug 26 2011
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Exemptions, Professional

Unlicensed Law School Graduate Still May Be Exempt Under Learned Professions Exemption

Harvey A. Nell, Clerk and Recorder, Anaconda, MT

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The First District Court of Appeal held that summary judgment was properly granted in a wage and hour case because plaintiff unlicensed law school graduate performed duties that brought him within the exemption for learned professionals.  Zelasko-Barrett v. Brayton-Purcell, LLP, — Cal.Rptr.3d —-, 2011 WL 3594015, No. A130540 (1st Dist. Aug. 17, 2011) .

Background

Plaintiff was employed by the Brayton-Purcell, LLP (Brayton) law firm as a Law Clerk II after he graduated from law school but before he passed the bar examination. Id. *1. After being admitted to the bar, plaintiff was designated as an associate attorney, and performed tasks customarily performed by junior attorneys. Id. He drafted pleadings, discover demands and responses, did legal research and drafted memoranda of points and authorities, interviewed witnesses, etc. Id. The trial court granted Brayton’s motion for summary judgment and sustained objections to numerous statements where plaintiff denied he was employed in a professional capacity and performed work covered by the professional exemption. Id.

Plaintiff filed an action after voluntarily departing from the law firm, and alleged that he had been misclassified.  Brayton successfully moved for summary judgment on the ground that in the Law Clerk II position plaintiff had been an “exempt professional employee.” Id. Plaintiff appealed. Id. Continue reading →

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Jan 09 2011
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23(b)(2) Class, Claims, Class Actions, Class Notice, FLSA, Jury, Opt-in, Opt-out, Overtime, Preemption, Professional, Trial, Unfair Competition Law

Ninth Circuit Holds That Newspaper Reporters Not Exempt

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On Monday, the U.S. Court of Appeals for the Ninth Circuit affirmed in “all respects” the trial court’s grant of partial summary judgment to plaintiffs, a judgment after jury and bench trials, and an award of attorney’s fees to plaintiffs.  Wang v. Chinese Daily News, Inc., Nos. 08-55483, 08-56740, — F.3d —-, 2010 WL 3733568 (9th Cir. Sept. 27, 2010).  Among other things, the Ninth Circuit held that plaintiff newspaper reporters were non-exempt.  (Thank you to Randy Renick for bringing this case to my attention.)

Background

Employees of Chinese Daily News, Inc. (“CDN”), a Chinese-language newspaper, filed suit against CDN on behalf of current, former, and future CDN employees based in CDN’s San Francisco and Monterey Park (Los Angeles), California locations.  Id. *1.  Plaintiffs claimed violations of the FLSA, California’s Labor Code, and California’s Unfair Competition Law, Cal. Bus. & Prof. Code § 17200, alleging that employees were made to work in excess of eight hours per day and forty hours per week. Id. Continue reading →

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Jan 09 2011
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Class Actions, First to File, FLSA, FLSA Collective Action, Transfer

Eastern District Denies “First to File” Transfer of FLSA Collective and Labor Code Class Action

My Reference Files
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The United States District Court for the Eastern District of California denied defendant employer’s motion to transfer pursuant to the “first-to file” rule.  Wilkie v. Gentiva Health Services, Inc., Civ. No. 10-1451 FCD/GGH, 2010 WL 3703060 (E.D. Cal. Sept. 16, 2010) (slip op.).  Plaintiff filed a putative nation-and California-wide class action/collective action against plaintiff’s former employer Gentiva for alleged violations of the Federal Labor and Standards Act (“FLSA”) and the California Labor Code § 201 et seq. for: (1) misclassification as exempt from overtime pay and failure to pay overtime; (2) willful failure to pay wages due within the time specified by the Code; (3) violation of California Wage Order No. 4 for knowingly and intentionally failing to provide timely, accurate, itemized wage statements including request for an injunction and damages; (4) failure to give proper rest and meal breaks; and (5) violation of California’s Business & Professions Code § 17200 et seq.  Id. *1

A prior FLSA collective action and New York and North Carolina state law class action against Gentiva was filed in the United States District Court for the Eastern District of New York, entitled Rindfleisch, et al. v. Gentiva Health Services, Inc., No. CV10-2111 (E.D.N.Y.) (“Rindfleisch”). Defendant moved to transfer plaintiff’s complaint under the “first-to-file rule,” on the ground plaintiff’s claims are the subject of the Rindfleisch action. Plaintiff opposed the motion, arguing the parties and claims are not substantially similar in the two actions and other equitable factors militate against transfer under the first-to-file rule.  Id. The court denied Gentiva’s motion.  Id. Continue reading →

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Jan 09 2011
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Bond

Southern District Requires Plaintiffs in CUTSA Case to Post $800,000 Bond for Fees and Costs Pursuant to California Code of Civil Procedure § 1030

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The United States District Court for the Southern District of California required plaintiffs in a UTSA case to post an $800,000 bond for fees and costs, pursuant to California Code of Civil Procedure section 1030.  Gabriel Technologies Corporation v. Qualcomm Incorporated, No. 08 CV 1992 MMA (POR), Slip Copy, 2010 WL 3718848 (S.D. Cal. Sept. 20, 2010).

The action arose out of events related to technology licenses and related joint ventures between Plaintiffs and their predecessor in interest, and Defendants.  Id *1.  In the Fourth Amended Complaint, Plaintiffs assert claims for: (1) Breach of the Amended and Restated License Agreement; (2) Correction of Inventorship (pursuant to 35 U.S.C. § 256); (3) Declaratory Judgment of Ownership Interest in the Patents (pursuant to 28 U.S.C. § 2201); and (4) Misappropriation (pursuant to Cal. Uniform Trade Secrets Act). Id. *2. Defendants filed a motion for a cost bond under California Code of Civil Procedure section 1030. Id. The Court also has authority under Civil Local Rule 65.1.2(a) to require Plaintiffs to post a bond “where authorized by law and for good cause shown.” Continue reading →

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Jan 09 2011
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23(b)(3) Class, Claims, Class Actions, Contract, Paystub, Vacation, Wages

Class Certification Granted in Vacation, Uniform, Paycheck, Wage and Contract Class Action

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The Southern District of California granted class certification in a vacation, uniform, paycheck, wage and contract class action.  Lopez v. G.A.T. Airline Ground Support, Inc., No. 09cv2268-IEG(BGS), 2010 WL 3633177 (S.D. Cal. Sept. 13, 2010) (slip op.).

Background

Former employees of Defendant G.A.T. Airline Ground Support, Inc. (“GAT”) sued for systematic wage and hour violations in violation of federal and state law. Id. *1.  GAT provides services to airlines, including ground transportation, aircraft maintenance, and cargo operations management.  Id. The four named Plaintiffs are former ramp agents employed by GAT in California.  Id. Continue reading →

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Jan 09 2011
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Class Discovery, Discovery, Opt-out

Central District Rejects Opt-Out Procedure and Orders Disclosure of Name and Contact Information for Members of an Unpaid Commission Wages Class Action

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The Central District granted plaintiff’s motion to compel disclosure of the name and contact information (full name, last known addresses and telephone numbers) for class members of a putative class action for unpaid commission wages.  Celia Alvarez, et al. v. The Hyatt Regency Long Beach, et al., CV 09-04791-GAF (VBKx).  According to the court, the class was defined as all non-exempt employees for the period commencing May 7, 2005.  (Thank you to Radhika Sainath for alerting me to the decision.)

Defendants contended that the information was not relevant for class certification and invaded the privacy rights of the putative class.  Plaintiffs offered to enter into a protective order and offer that the information be given to a third party who would send the class members an opt-out letter.  Defendant rejected these proposal. Continue reading →

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Jan 09 2011
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Class Actions

Northern District Strikes Aiding and Abetting Allegations From Overtime Class Action Complaint

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The Northern District of California granted a motion to strike aiding and abetting allegations from an overtime class action complaint.  Toy v. Triwire Engineering Solutions, Inc.,  No. C 10-1929 SI, 2010 WL 3448535 (N.D. Cal. Sept. 1, 2010) (slip op.).

Background

Plaintiff Jason Toy filed a putative class action in state court against defendants TriWire Engineering Solutions, Inc., Comcast Corporation, and Comcast Cable Communications Management LLC, alleging that TriWire and Comcast employed Toy as a cable technician to install, disconnect, and upgrade cable television and computer services for consumers throughout California.  Id. *1.  Plaintiff contended he was not exempt from overtime requirements, and was not paid overtime in accordance with the law. Id. Continue reading →

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Jan 09 2011
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Copyright, Demurrer/Motion to Dismiss

Northern District Dismisses UTSA Cause of Action for Source Code Partially Filed With Copyright Office

The source code for Ctrl-Alt-Del
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The Northern District dismissed a California Uniform Trade Secrets Act (UTSA or CUTSA) cause of action in a software code distribution case for failure to adequately allege secrecy. Kema, Inc. v. Koperwhats, No. C-09-1587 MMC, 2010 WL 3464708 (N.D. Cal. Sept. 1, 2010) (slip op.). Continue reading →

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