Metropolitan News-Enterprise

 

Tuesday, February 22, 2022

 

Page 1

 

There’s No Right to Jury in PAGA Action, C.A. Declares

Panel Does Not Strike Reply Brief Filed After Appellant’s Death;

Decides Ralphs Not Required to Provide Seating for Checkers

 

By a MetNews Staff Writer

 

There’s no right to a jury trial in a private attorney general action under the Labor Code, Div. Four of the Court of Appeal for this district held Friday, in a case in which there was no appellant.

The plaintiff, Jill La Face—who died while her appeal was pending—alleged that she and other cashiers at Ralphs markets were not provided with seating, in alleged violation of an Industrial Welfare Commission wage order. Los Angeles Superior Court Judge Patricia Nieto held that no right to a jury existed, heard the evidence, and ruled in favor of Ralph’s.

Los Angeles Superior Court Judge Gary I. Micon, sitting on assignment to the appeals court, wrote the opinion affirming Nieto’s judgment. Noting the death of La Face before a reply brief was filed, he said in a footnote:

“Appellant’s counsel filed a reply brief on her behalf, prompting both respondent’s motion to strike the reply brief and a motion by appellant’s counsel to substitute another former Ralphs employee as the appellant.… Rather than determine whether substitution is permissible in this type of action, we exercise our discretion to consider the reply brief and decide the appeal on its merits because it presents a continuing issue of public interest….Accordingly, we deny respondent’s motion to strike the reply brief and deny without prejudice the motion to substitute in a new appellant on the ground that it is now moot.”

Right to Jury

La Face had relied on Article I, §16 of the California Constitution which provides:

“Trial by jury is an inviolate right and shall be secured to all.…”

The section makes express reference to juries in civil cases. An action under the Labor Code’s Private Attorneys General Act (“PAGA”) is a civil suit, La Face argued, meaning she had a right to a jury.

Sec. 16, Macon countered, “was intended to preserve the right to a civil jury trial as it existed at common law in 1850 when this section became part of the state’s constitution,” and that did not include “suits in equity.” There are, he noted, equitable aspects to PAGA suits.

He explained:

“…PAGA is a civil action only in the sense that its designated forum is the trial courts. PAGA plaintiffs are still mere proxies for the state, bringing what would otherwise be an administrative regulatory enforcement action on its behalf. The action is still subject to the same legal rights and interests as the state…, and that right does not include the right to a jury trial….It seems anomalous to vest the state’s proxies with more rights than the state would otherwise have on its own.”

Macon went on to say:

“Although PAGA is an action for civil penalties, it is an administrative enforcement hybrid. If tried to a jury, the parties would gain a jury trial right not otherwise available to either the agency or employers.

“Many of the violations would be based on newly created rights that did not exist at common law. Jurors would be called upon to sometimes exercise the same discretion, subject to the same limitations and conditions, as the administrative agency on whose behalf the action was brought, when deciding whether to assess penalties in the first place. They would then be asked to apply equitable principles to determine whether to reduce those penalties below the amounts set by statute. On balance, we cannot conclude that such an action has a pre-1850 common law analog that would call for the right to a jury trial under the California Constitution.”

Wage Order

The wage order provides that “employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats” and says that “employees shall be permitted to use such seats when it does not interfere with the performance of their duties.”

The opinion proceeds on the assumption that employees could not perform their function at check-out stands while seated, and turns to functions Ralphs expects them to perform while not checking out customers—such as looking for customers about to check out, which the grocery chain refers to as “fishing.”

Macon wrote:

“Appellant does not contend, and the evidence does not show, that any of the alternative duties cashiers were expected to perform could be carried out while seated. Ralphs expected that while cashiers were not actively checking out customers, they would clean, restock, assist in other departments, or fish for customers. No evidence suggested these expectations were unreasonable, nor did appellant make such an argument.”

He added:

“Sitting in or near the checkstands when there are no customers in line instead of cleaning, restocking, assisting other departments, or fishing, would interfere with the performance of the cashiers’ other duties.”

Unanswered Question

Unexplained by Macon is how the lawyers for La Face could file a reply brief in their client’s name after the client had died. Macon cited the California Supreme Court’s 2001 decision in Conservatorship of Wendland. In that case, the conservatee, who was the subject of the proceedings, died after oral argument had taken place.

Then-Justice Kathryn Werdegar said in a footnote:

“We have discretion to decide otherwise moot cases presenting important issues that are capable of repetition yet tend to evade review.”

Macon also cited the Sixth District Court of Appeal’s 2011 decision in People v. Nottoli. The court decided the issue that was presented notwithstanding the respondent’s death; the cause had already been argued.

The 1983 Court of Appeal opinion of the Fourth District’s Div. Two was also cited by the visiting justice. In that case, parents petitioned for a writ of prohibition barring the removal of their infant child from a life support sysyem, and counsel for the child also petitioned.

The child, while on life support, died. Div. Two disregarded the mootness because “[t]he novel medical, legal and ethical issues presented in this case are no doubt capable of repetition and therefore should not be ignored by relying on the mootness doctrine.”

 Macon provided no citation to a case authorizing a law firm to put forth a position on behalf of a client who weas deceased.

Oral Argument Contemplated

On Dec. 28, a letter was sent by the court to counsel saying:

“The court defers ruling on (1) respondent’s motion to strike appellant’s reply brief, and (2) appellant’s motion to substitute plaintiff-appellant. The parties should be prepared to discuss the issues in these motions at oral argument on January 13, 2022.”

However, argument was waived, leaving unanswered how lawyers could appear to argue for reversal in the absence of having a client.

Representing La Face were André E. Jardini, K.L. Myles, and Greta T. Hutton of Knapp, Petersen & Clarke,; Ryan Y. Wu, Melissa Grant, and John Stobart of Capstone Law; and Michael V. Jehdian.

Tritia M. Murata, Wendy J. Ray, Karen J. Kubin, James R. Sigel and Michael F. Qian of Morrison & Foerster acted for Ralphs.

 

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