Metropolitan News-Enterprise


Tuesday, April 14, 2009


Page 1


Court Revives Benefit Claims by Locked-Out Grocery Workers


By SHERRI M. OKAMOTO, Staff Writer


This district’s Court of Appeal has revived a class action filed by employees of Albertson’s Inc. seeking reversal of an administrative decision denying them unemployment insurance benefits during the 2003 lockout of grocery store employees.

Reversing the order of Los Angeles Superior Court Judge Wendell Mortimer Jr. dismissing the second writ petition filed by Gayle Tarkington and Joel Straub as untimely, Div. One ruled in a March 12 decision ordered published yesterday that the statute of limitations for filing the writ petition had been equitably tolled.

After contract negotiations between the United Food and Commercial Workers labor union and Albertson’s, Ralphs Grocery Co., and The Vons Company Inc. broke down in Oct. 2003, Vons employees went on strike.

The next day, Albertson’s and Ralphs announced that they would lock out all of their union employees, except pharmacists, whose continued work was ostensibly required to protect public health and safety.

EDD Claims

Several Albertson’s and Ralphs employees, including Tarkington and Straub, filed claims with the California Employment Development Department for unemployment insurance benefits during the 18-week period before the three grocers and the union reached a new contract in February 2004.

The EDD determined that these employees had voluntarily left work over a trade dispute and denied their claims. Tarkington and Straub appealed the EDD ruling to the California Unemployment Insurance Appeals Board.

At the board hearings, Tarkington and Straub asserted that they were seeking unemployment benefits on a “class- or group-wide” basis.

The board subsequently issued a written decision by Administrative Law Judge Francis G. Knipe upholding the EDD’s determination that the union members locked out by Albertson’s were ineligible for unemployment benefits because the union had  “instituted the ‘first blow’” by initiating the strike against Vons.

One month later Knipe issued a nearly identical decision denying benefits for employees locked out by Ralphs.

Writ Petition

When Knipe’s decisions were upheld on administrative appeal, Tarkington and Straub, along with two Ralphs employees, filed a petition for writ of administrative mandate in Los Angeles Superior Court, styled as a class action. Albertson’s and Ralphs were named as real parties in interest.

Mortimer sustained Albertson’s demurrer to the petition, finding a misjoinder of the grocers. On Jan. 19, 2007, Mortimer denied the plaintiffs’ motion for reconsideration, citing the absence of “new or different facts, circumstances or law.”

On Feb. 1, 2007, Tarkington and Straub again filed a petition for writ of mandate styled as a class action that only named Albertson’s as the real party in interest. Albertsons again demurred.

Mortimer sustained the demurrer with leave to amend, finding the defined class was too broad, in part, because it included individuals who had not exhausted their administrative remedies. He also directed Tarkington and Straub to specifically plead equitable tolling in order to overcome dismissal based upon the six-month statute of limitations found in the Unemployment Insurance Code.

Tarkington and Straub later amended the instant petition to include allegations supporting equitable tolling, but the class allegations remained unchanged.

Class Allegations Challenged

In its demurrer, Albertsons challenged the equitable tolling allegations as insufficient and contended that all the class allegations should be stricken because Tarkington and Straub had failed to amend them.

The demurrer was against sustained and the motion to strike granted. Mortimer instructed Tarkington and Straub to allege additional facts in support of equitable tolling and omit the class allegations.

Rather than amend their petition, Tarkington and Straub sought a judgment of dismissal in order to pursue the matter on appeal. Pursuant to an ex-parte application by Albertson’s, Mortimer dismissed the petition with prejudice.

Writing for the appellate court, Orange Superior Court Judge Ronald L. Bauer—sitting on assignment—explained that the six month statute of limitations began to accrue when Tarkington and Straub lost their administrative appeal in June 2005 and so their petition filed in February 2007 was therefore untimely on its face.

Bauer explained, however, that the joint petition filed against Albertson’s and Ralphs in December 2005 was timely and would have put Albertsons in a position to defend itself from the later, substantially identical, petition.

Given the protracted history of the underlying litigation, Bauer reasoned Tarkington and Straub had acted promptly and in good faith, having filed their second petition 13 days after the trial court denied their motion to reconsider and that the doctrine of equitable tolling should therefore preserve their claims.

He further concluded that Mortimer had acted prematurely in making determinations pertaining to class suitability on demurrer and that requiring all the putative class members to exhaust their administrative remedies would serve no useful purpose because Tarkington and Straub had undisputedly exhausted their remedies and presented a legal question common to all the members of the putative class.

Presiding Justice Robert M. Mallano and Justice Frances Rothschild joined Bauer in his opinion.

Robert S. Remar and Jacob F. Rukeyser of Leonard Carder represented Tarkington and Straub while Mark D. Kemple and Katie A. Richardson of Jones Day represented Albertson’s.

The case is Tarkington v. California Unemployment Insurance Appeals Board (Albertson’s Inc.), 09 S.O.S. 2081.


Copyright 2009, Metropolitan News Company