February 2018 - Reuben Raucher & Blum, RRB Attorneys at LawReuben Raucher & Blum, RRB Attorneys at Law

Plaintiff Asserting Claim Under Private Attorneys General Act (PAGA) Must Provide Adequate Notice And May Not Proceed Individually

Posted on February 20, 2018 by Timothy Reuben

The Court of Appeal, Second District, recently clarified what constitutes adequate notice to the California Labor and Workforce Development Agency (LWDA) in order to assert a PAGA claim. In Khan v. Dunn-Edwards Corp. (2018) 19 Cal.App.5th 804, plaintiff brought a lawsuit for paystub violations. Pending the litigation, he sent the required notice which stated it was for “my claims against my former employer. . .” The Court of Appeal affirmed summary judgment when it held the plaintiff failed to properly notify the LWDA because the notice referred only to the plaintiff and no other employees. The Court reasoned that the notice was inadequate because the LWDA may have chosen not to dedicate resources to investigate what appeared to be an individual violation.

The Court further determined that the plaintiff could not proceed with the PAGA claim on his own behalf because PAGA can only be brought as a representative action, as the plaintiff’s other individual claims had been dismissed. Khan also raises the question of what specificity is ultimately required in the notice letter to the LWDA, opening the door for another point of attack for the defendant. Clearly, reference to the plaintiff’s own claims, and nothing more, is insufficient.

Court of Appeal: Trial Court Appropriately Exercised Discretion Denying Plaintiff’s Attorney Fees

Posted on February 1, 2018 by Timothy Reuben

Coming out of the California Court of Appeal, Fourth Appellate District, Division Two, the Court of Appeal determined in Bustos v. Global P.E.T., Inc. (Dec. 22, 2017, No. E065869) 2017 Cal. App. LEXIS 1168, that the trial court appropriately exercised its discretion when it denied the plaintiff’s request for attorney fees even though the jury found on a special verdict that discrimination was a substantial motivating factor for his termination, but also returned a verdict for the defense on all claims.

Despite not prevailing on any of his claims, the plaintiff still sought $454,857.90 in attorney fees. Under the California Supreme Court’s ruling in Harris v. City of Santa Monica (2013) 56 Cal.4th 203, the trial court has the discretion to award the plaintiff attorney fees in a California Fair Employment and Housing Act (FEHA) action if there is a showing that discrimination was a substantial motivating factor, even if the discrimination did not “result in compensable injury.”

The Court of Appeal clarified that while the holding in Harris is broad, the trial court has the ultimate discretion as to when it should award plaintiff’s attorney fees when there is a finding of discrimination. Instead of looking merely at the jury’s special verdict form, the trial court should focus on who prevailed “on a practical level,” including monetary or equitable relief, or if the plaintiff realized his or her litigation objectives. Here, the plaintiff obtained no relief, neither monetary nor equitable, and so the trial court’s decision not to award attorney fees was affirmed as within its discretion.

Recent Developments in Family Law: Evidence Code Section 622 Can’t Be Used to Circumvent the Requirements of Family Code Section 1615

Posted on February 1, 2018 by Stephanie Blum

In In re Marriage of Clarke & Akel (2018) 2018 Cal.App. LEXIS 57, the First Appellate District, Division Five, confronted a potential conflict between Family Code Section 1615 and Evidence Code Section 622. Family Code Section 1615(c)(2) states that a premarital agreement is unenforceable as to a party who was not represented by counsel and who did not have at least seven calendar days between the date he or she was first presented with the agreement and the date it was signed. Evidence Code Section 622 provides that the facts recited in a written instrument are “…conclusively presumed to be true as between the parties thereto.”

In In re Marriage of Clarke & Akel, the Court of Appeal held that the seven-day review period mandated by the Family Code cannot be circumvented by inserting language into a premarital agreement acknowledging that both parties had seven days to review the agreement, when in fact they did not. In this case, the husband, Matthew, drafted a premarital agreement which he emailed to his soon-to-be wife, Claudia. Matthew then retained an attorney to represent Claudia in the negotiation and execution of the premarital agreement. He did not retain an attorney for himself. The couple’s wedding date was set for March 7, 2008. On March 5, 2008, the attorney revised the agreement and sent a version to both Matthew and Claudia. This agreement claimed that each party had more than seven days to review the premarital agreement before executing it. The couple signed the final version of the agreement on March 6, 2008.

The parties separated and Claudia sought to enforce the premarital agreement, which had given her lifetime tenancy at the couple’s marital home. Matthew argued that he did not enter the premarital agreement “voluntarily” under the terms of Family Code Section 1615 because he did not have at least seven days to review the agreement. The burden is on the party seeking enforcement to prove that the agreement was voluntary. Claudia argued that because the agreement stated that each party had at least seven days to review the agreement, Evidence Code Section 662 mandated that the text be taken as true. The court did not agree. According to Section 1615, a premarital agreement is involuntary, and thus invalid, when an unrepresented party has had fewer than seven days to review the agreement. Section 662 applies only to valid contracts. Therefore, Claudia did not prove that the agreement was entered into voluntarily. The court stated that the policy behind the seven day rule was to protect parties who enter into premarital agreements without legal representation, and this policy would be violated if the rule could followed by including boilerplate language that did not reflect the true facts.