Second Appeal in Sutter Home Winery Wrongful Termination Suit

The California Court of Appeal recently issued its decision on the second appeal in the Sutter Home Winery wrongful termination lawsuit.

The Case: Siri v. Sutter Home Winery, Inc.

The Court: California Court of Appeal, First District

The Case No.: A161923

The Plaintiff: Siri v. Sutter Home Winery, Inc.

Thirty days after receiving a section 997 offer to compromise consisting of a $500,000 payment in exchange for dismissing all claims with prejudice, the plaintiff in the case, Siri, served the Trinchero Family Estates (aka Sutter Home Winery) with a “Notice of Conditional Acceptance.” The notice accepted the 998 offer while requesting that the court clarify her right to prejudgment interest. She also filed objections to the 998 offer and filed a motion asking the court to enter a judgment in her favor consistent with her conditional acceptance of the 998 offer and including prejudgment interest. The court denied the plaintiff’s motion but granted Trinchero’s motion to enforce the 998 offer.

The Defendant: Siri v. Sutter Home Winery, Inc.

Per section 998(b), the 998 offer stayed open for 30 days after Trinchero made the offer, during which the parties disagreed on whether Siri’s acceptance of the offer would trigger a right to receive prejudgment interest. On appeal, the decision was reversed, and the Court of Appeal clarified that a 998 acceptance must be “absolute and unqualified” for a binding settlement. The plaintiff’s acceptance did not fall into that category. The plaintiff’s Notice of Conditional Acceptance specified that it was conditional and introduced new terms to the bargain as proposed in the original 998 offer (the plaintiff’s right to obtain clarification from the court regarding prejudgment interest). Based on this argument, the court decided that conditional acceptance did not create a binding settlement enforceable under Section 998.

The Case: Siri v. Sutter Home Winery, Inc.

In some cases, a conditional acceptance may be a counteroffer to the original offer. If accepted, the conditional acceptance would generate a binding, enforceable settlement under section 998 as the counteroffer was accepted, and the second party agreed to the additional or altered terms. However, as the conditional acceptance here did not depend on additional terms that the second party agreed to, this does not apply in Siri v. Sutter Home Winery, Inc.

If you have questions about how to file a California overtime lawsuit, please get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced employment law attorneys are ready to assist you in various law firm offices in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.

Federal Judge Throws Out the $85M Wrongful Death Award

In recent news, a federal judge threw out the $85 million wrongful death lawsuit award over a Southern California man's death while in the custody of Sheriff's deputies in 2015.

The Case: K.J.P., a minor, and K.P.P., a minor, individually, by, and through their mother, LOAN THI MINH NGUYEN, who also sues individually and as successor in interest to her now deceased husband, Lucky Phounsy v. County of San Diego and Richard Fischer

The Court: U.S. District Court of Southern District of California

The Case No.: 15-cv-2692-H-MDD

The Plaintiff: K.J.P. and K.P.P. by and through Loan Thi Minh Nguyen v. County of San Diego and Richard Fischer

The plaintiff in the case is Lucky Phounsy's family. Lucky was a 32-year-old Santee, California resident who died after an April 13, 2015 incident involving the San Deigo Sheriff's Department and some local deputies. Lucky's family claims his death was caused by law enforcement, who tased, beat, and hogtied him during the encounter. During his son's 2nd birthday party, Phounsy called 911 amidst a mental crisis and reported unknown assailants were attempting to hurt him. Lucky's family recalls the Sheriff's deputies who responded to the call as confrontational, aggressive, and profane. While law enforcement officers on the scene tried to handcuff Lucky, he allegedly became frightened and confused about the situation. Law enforcement tased, beat, and then hogtied Lucky, eventually strapping him to a gurney tightly and transferring him into an ambulance (without being untied). The former Sheriff's deputy who rode with Phounsy to the hospital allegedly put a spit-sock over Phounsy's face and pushed his head and torso down until Phounsy went into cardiac arrest. Due to the spit-sock, paramedics could not offer Lucky oxygen or appropriately monitor his condition. Before arriving at the hospital, Phounsy fell into a coma. After a few days at the local hospital, Lucky Phounsy died. The family filed a wrongful death lawsuit against the Sheriff's department, and the first trial in 2021 resulted in a hung jury. After further litigation, a March 2022 jury trial resulted in an $85 million award for the family of Lucky Phounsy - the largest settlement ever seen in this type of case.

The Defendant: K.J.P. and K.P.P. by and through Loan Thi Minh Nguyen v. County of San Diego and Richard Fischer

Defendants claim that the two responding deputies called for backup units "while they were being assaulted and injured by Phounsy." The two deputies were allegedly injured in the altercation (one with severe injuries). After the incident, the Sheriff's Department cleared the deputies involved of wrongdoing and claimed that Phounsy died of a drug overdose combined with extreme exertion. These claims were not supported by evidence.

Details of the Case: K.J.P. and K.P.P. by and through Loan Thi Minh Nguyen v. County of San Diego and Richard Fischer

Previously, in March 2022, a California jury found that the San Diego County sheriff's deputies used excessive force in a 2015 incident. However, U.S. District Judge Marilyn Huff found that the March award by a federal jury in the civil rights lawsuit brought by Lucky Phounsy's family against San Diego County wasn't supported by trial evidence. At the time it was awarded, the $85 million award was the nation's largest civil rights award for a custody death in history. According to the judge, the amount was "far out of proportion to the evidence," which could indicate that the jury impermissibly included in the award a measure of the plaintiffs' emotional distress or intended some portion as a punishment for the defendants. The judge did not order a new trial and upheld findings of excessive force and negligence. However, a new trial will be necessary to determine a new award amount.

If you have questions about how to file a wrongful death lawsuit, please get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw L.L.P. Experienced wrongful death attorneys are ready to assist you in various law firm offices in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.

Conso’s Lawsuit Claims Excessive Force During 2020 Protest Citing History of Incidences

Molly Conso filed a federal lawsuit against the county of Humboldt and the city of Eureka, claiming officers used excessive force when they shot her with non-lethal projectiles during a peaceful protest in May 2020.

The Case: Conso v. City of Eureka

The Court: United States District Court, Northern District of California

The Case No.: 21-cv-04480-RMI

The Plaintiff: Conso v. City of Eureka

During a protest of the murder of George Floyd on May 25, 2020, the plaintiff, Molly Conso, claims the officers' use of non-lethal projectiles constituted excessive force. Conso filed the lawsuit in June 2021, seeking unspecified damages for physical pain and emotional distress. The plaintiff claims she peacefully marched alongside other protestors marching arm-in-arm on May 31, 2020 when police officers suddenly (and without warning) shot pepper balls into the crowd. Conso claims the projectiles caused her to suffer injuries to the head, including a concussion, post-concussive syndrome, bruising, chemical burns, hearing impairment, and emotional distress. According to protestors on the scene, there was no warning or verbal demands to disperse.

The Defendant: Conso v. City of Eureka

EPD Capt. Brian Stephens, an officer on the scene, released a response after the incident in which he stated that throughout the day, amidst the protest, acts of vandalism were perpetrated, and upon identifying the instigator of the vandalism, the Sherriff's office moved to make an arrest. However, according to the officer, the crowd turned unruly when police took the suspect into custody. When the situation escalated to members of the crowd attempting to remove the suspect from police custody forcibly, police determined escalating circumstances and safety risks to officers on the scene constituted the use of pepper balls (projectiles filled with powdered pepper spray). The police opened fire on the crowd with paintball guns filled with non-lethal projectiles. The officer then described how officers stayed on the scene, attempting to de-escalate the situation and provide needed medical treatment.

Details of the Case: Conso v. City of Eureka

In regards to the claims of excessive force used by the County and City when an individual allegedly does not pose an imminent threat of harm during a pursuit, the plaintiff cited three cases that indicated a pattern:

1. During a 1997 protest, police officers reportedly "swabbed pepper spray in the eyes of eight activists practicing nonviolent resistance." The action was later allegedly found to constitute excessive force.

2. Another allegation of excessive force resulted in a wrongful death action where a man died in the custody of Eureka police officers. This claim was settled before trial.

3. The reported denial of qualified immunity for the sheriff and chief deputy sheriff was connected to a matter involving "repeated use of [pepper] spray" and "refusal to wash out the protestors' eyes" (constituted excessive force), which the sheriff and his chief deputy had explicitly authorized.

The court found that Plaintiff correctly pleaded her case against the Doe Defendants she claims unjustifiably struck her with projectiles during the allegedly peaceful public protest. But her attempts to include the City, the County, Chief Watson, and Sheriff Honsal in the case and project her case into other various molds were not well argued or well founded. Instead of pleading concrete factual assertions about training programs, supervisory practices, or municipal policies, practices, or customs, the plaintiff veers toward conclusory argumentative statements without including the necessary factual development. Both motions to dismiss were granted based on the lack of factual development in these areas. The City, the County, Sheriff Honsal, Chief Watson, and the Doe Defendants were dismissed from the lawsuit to the following extent: the case remains active only as to the Doe Defendants for Claims 1 and 2 (unreasonable search and seizure - excessive force and violation of the First Amendment). Claim 3 (municipal liability for unconstitutional customs or policies) is dismissed. Claim 4 remains active. Claim 5 (negligence) remains active only as to the Doe Defendants. Claim 6 (assault and battery) is dismissed. Claim 7 (violation of the Bane Act) remains active. And Claim 8 (intentional and negligent infliction of emotional distress) is dismissed.

If you have questions about how to file a California excessive force or wrongful death lawsuit, please get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced employment law attorneys are ready to assist you in various law firm offices in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.

Fresenius USA Manufacturing Moves for Summary Judgment in Overtime Suit

Fresenius USA Manufacturing allegedly violated California's labor laws governing meal periods, rest breaks, and overtime compensation. In a March 14, 2022 order, the court granted the Defendant's Motion for Summary Judgment.

The Case: Cota v. Fresenius U.S., Inc.

The Court: United States District Court, Southern District of California

The Case No.: 18cv1163-LAB

The Plaintiff: Cota v. Fresenius U.S., Inc.

The plaintiff in the case, Sergio Cota, worked for the Defendant, Fresenius USA Manufacturing, Inc. as a truck driver from May 21, 2008 through April 19, 2017. During his time employed at the company, Cota claims the company violated California's labor laws relating to meal periods, rest breaks, and overtime pay. He also filed derivative claims for failure to pay wages due upon termination, failure to provide accurate itemized wage statements as required by law, violation of California's Unfair Competition Law ("UCL"), and violation of the California Private Attorneys General Act ("PAGA").

The Defendant: Cota v. Fresenius U.S., Inc.

The defendant in the case (FUSA Manufacturing, plus parent company and co-defendant Fresenius USA, Inc.) employed Cota as a driver. In December 2018, after Cota filed his claims, the Secretary of Transportation declared that the Motor Carrier Safety Act of 1984 preempted California's meal and rest break rules for commercial drivers. The Federal Motor Carrier Safety Administration then stated that the declaration applied to any future enforcement of the specified statutes, even those connected with alleged conduct that occurred before the declaration.

Details of the Case: Cota v. Fresenius U.S., Inc.

When the Ninth Circuit Appeals Court took up another action involving the FMCSA's preemption decision (Int'l Bhd. of Teamsters, Local 2785 v. FMCSA, Case No. 19-73488), the parties in Cota v. Fresenius U.S., Inc. jointly moved to stay the case and await the court's decision. Since it was reasonable to expect the other case's ruling to be "controlling" in the Cota v. Fresenius U.S., Inc. case, the Court granted the motion to stay. In Int'l Bhd. of Teamsters, Local 2785 v. FMCSA, the Ninth Circuit upheld FMCSA's preemption determination but found that FMCSA's opinion on retroactivity was not a reviewable final agency action. In a March 14, 2022 order, the court determined that Cota's wage and rest period claims relied on unenforceable California state law and that his overtime allegations overlooked that he was exempt from the overtime protections used as the basis for the claim. The other wage-related claims Cota filed were derivative of the first three failed claims, and the attached UCL and PAGA claims cannot stand on their own without another claimed violation as support. Based on these arguments, the court granted Fresenius U.S.'s Motion for Summary Judgment and entered judgment in Defendant's favor.

If you have questions about how to file a California class action suit, please get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced employment law attorneys are ready to assist you in various law firm offices in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.

A Common Nucleus of Fact in Two Recent Employment Law Suits

In recent news, the court sides with Walmart in two different but connected wage statement violations lawsuits.

The Case: Anguiano-Tamayo v. Wal-Mart Assocs.

The Court: United States District Court, Northern District of California

The Case No.: 18-cv-04598-JSC

The Plaintiff: Anguiano-Tamayo v. Wal-Mart Assocs.

The plaintiff in the case, Anguiano-Tamayo, filed a putative class action in 2018 bringing claims under California Labor Code §§ 226 and 2698 against her employer, Walmart Assocs.

The Defendant: Anguiano-Tamayo v. Wal-Mart Assocs.

The defendant in the case, Walmart Assocs., moved to dismiss based on the plaintiff's failure to state a claim. The Court denied the motion to dismiss but stayed the case saying it was duplicative of an earlier-filed case pending at that time in the Northern District of California. The duplicative case concluded in 2021.

The Duplicitous Case: Magadia v. Wal-Mart Associates, Inc.

Roderick Magadia filed the duplicative putative class action in 2016 against his former employer Wal-Mart. (Magadia v. Wal-Mart Associates, Inc., No. 5:17-cv-00062-LHK, Dkt. No. 1-1.) Magadia alleged three violations of the California Labor Code:

• wage statement violations (adjusted overtime pay rates allegedly did not include hourly rates or hours worked),

• failure to list pay-period start and end dates on statements of final pay,

• and meal break violations.

In June 2018, Wal-Mart attempted to file a motion for reconsideration of the court's order granting partial summary judgment based on Canales (No. 5:17-cv-00062-LHK, Dkt. No. 129 at 3), a recent California Court of Appeals decision. The court denied "any motion for reconsideration" based on Canales. At the same time, Magadia attempted to amend the original complaint to add a new theory of liability based on Walmart's attempt to raise a new defense. The district court denied the request based on the advanced state of litigation combined with their denial of the defendant's request to raise a new defense. In response, the plaintiff's counsel filed the instant action on behalf of Ana Anguiano-Tamayo, a different employee, and filed an administrative motion to consider whether the two cases were related, arguing that they shared overlapping factual allegations regarding Wal-Mart's wage statements. Wal-Mart opposed claiming that the cases are based on unique theories of liability (Anguiano-Tamayo calls into question how certain wage statements reflect pay periods, and Magadia calls into question how wage statements reflect hourly rates and hours worked. The court denied the request to relate the two cases and stayed the more recently filed case, Anguiano-Tamayo v. Wal-Mart Assocs.

A Common Nucleus of Fact: Anguiano-Tamayo v. Wal-Mart Assocs.

After the conclusion of Magadia v. Wal-Mart Associates, Inc, the Anguiano-Tamayo v. Wal-Mart Assocs. case proceeded. While the theories behind the two cases were determined to be unique, in considering Anguiano-Tamayo v. Wal-Mart Assocs., the court decided that they did both arise out of the same transactional nucleus of fact. The court found that Magadia precludes the plaintiff's claim in Anguiano-Tamayo v. Wal-Mart Assocs. The court granted the Defendant's motion for judgment.

If you have questions about wage statement violations or need to file an employment law claim, please contact Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced employment law attorneys are ready to assist you in various law firm offices in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.

Plaintiffs Move for Class Certification in Wage and Hour Misclassification Action

The plaintiffs moved for class certification in the wage and hour misclassification action against Jan-Pro Franchising Int'l.

The Case: Roman v. Jan-Pro Franchising Int'l

The Court: United States District Court, Northern District of California

The Case No.: C 16-05961 WHA

The Plaintiff: Roman v. Jan-Pro Franchising Int'l

The plaintiff in the case, Gloria Roman, Gerardo Vazquez, and Juan Aguilar, worked for the defendant providing janitorial services. The plaintiffs claim the defendant misclassified them and other putative class members as independent contractors rather than employees who would benefit from the protections offered by employment law. By allegedly misclassifying the plaintiffs, Jan-Pro Franchising Int'l violated California minimum wage, overtime, expense reimbursement, and unlawful deduction laws. The plaintiffs seek compensation on behalf of the putative class.

The Defendant: Roman v. Jan-Pro Franchising Int'l

The defendant in the case, Jan-Pro Franchising Int'l, is an international janitorial cleaning business that uses a franchising model with three tiers. The top tier consists of the defendant, Jan-Pro International, Inc. The middle tier consists of "master franchisees" or "master owners" who are regional, third-party entities that purchased exclusive rights to use the trademarked "Jan-Pro" logo. (There were 91 master franchisees in the United States as of 2009). The third tier or bottom tier consists of "unit franchisees" contracted with master franchisees to clean for commercial accounts. Unit franchisees do not contract with the defendant, Jan-Pro Franchising Int'l. A given unit franchisee can be an individual or a few partners who can hire additional workers to help them clean. The plaintiffs purchased unit franchises from two different master franchisees. (The master franchisees in question are not parties herein.) The plaintiffs seek to certify the following class: all unit franchisees who signed franchise agreements with master franchisees in California and performed cleaning services for the defendant since December 12, 2004.

Details of the Case: Roman v. Jan-Pro Franchising Int'l

The August 2, 2022 order grants the plaintiffs' motion for class certification as to:

• Failure to pay minimum wage for mandatory training

• Failure to reimburse for expenses incurred for required uniforms, necessary cleaning supplies/equipment

• Unlawful deductions of management fees, sales fees, and marketing fees

And the order denies class certification for the remaining labor code claims and issues. The court also granted summary judgment in favor of the plaintiffs for all the certified matters.

If you have questions about how to file a California class action suit, please get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced employment law attorneys are ready to assist you in various law firm offices in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.

Dyncorp Faces Allegations of Employment Law Violations

Dyncorp International LLC faced claims that its wage statements violated labor law, failing to allow employees to easily and quickly identify the number of hours they worked and the rate of pay applicable for hours worked during that pay period.

The Case: Fierro v.Dyncorp Int'l LLC

The Court: United States District Court, Central District of California

The Case No.: CV 19-07091DDP

The Plaintiff: Fierro v.Dyncorp Int'l LLC

The plaintiff in the case, Fierro, worked for Dyncorp International LLC ("Dyncorp) at the Point Mugu Naval Air Station ("Point Mugu") from December 2016 to July 2019. Fierro alleged that Dyncorp violated California labor law by failing to provide accurate wage statements showing applicable pay rates and hours worked for specific shift premiums.

The Defendant: Fierro v.Dyncorp Int'l LLC

The defendant in the case, Dyncorp, contends that, notwithstanding the omissions, the plaintiff did not demonstrate injury as required by law. Under Labor Code Section 226(a)(9), wage statements must accurately itemize "all applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate by the employee . . . ." Cal. Lab. Code § 226(a)(9). However, only an "employee suffering injury" due to a deficient wage statement is entitled to recover statutory penalties. Dyncorp argued that the missing info from the wage statements could be identified using "grade school math," so there was no injury. On this basis, the defendant moved for summary judgment.

Details of the Case: Fierro v.Dyncorp Int'l LLC

In an order dated Jan 31, 2022, the court denied Defendant Dyncorp International LLC ("Dyncorp") 's Motion for Summary Judgment. While Dyncorp's argument had precedent, the court found the claim that the missing info could be derived using "grade school math" inaccurate. After examining two example wage statements, there was insufficient information to determine specific pay rates. Dyncorp argued that the "missing fact that dispels this seeming discrepancy" was available in other discovery documents (two collective bargaining agreements) that indicated a "shift differential premium" applicable to specific types of paid time off (i.e., vacation, holidays, jury duty, and personal paid leave). Dyncorp argued that considering that additional information and understanding, the wage statements can then be used to calculate the number of "Shft $2.05" hours worked in the given pay period and the pay allocated for them. Ignoring that the calculations needed to determine the necessary info were, once again, not as simple as Dyncorp claimed, the wage statements were still insufficient. The law requires wage statements employees can use to "promptly and easily determine" the number of hours worked at each applicable rate "from the wage statement alone." (Section 226, Cal. Lab. Code § 226(e)(2)(B)(I)). The court denied Dyncorp's move for summary judgment.

If you have questions about how to file a California overtime pay lawsuit, please get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced employment law attorneys are ready to assist you in various law firm offices in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.