The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on Wednesday, February 18, 2015. The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal.
Review Granted
None.
Review Denied (with dissenting justices)
None.
Depublished
In re Walgreens Overtime Cases, S223001—Depublished Court of Appeal Opinion—February 18, 2015
Plaintiff brought a class action against Walgreens alleging that the drugstore chain failed to “ensure” that its employees took their meal breaks. The trial court denied plaintiff’s motion for class certification. In so ruling, the trial court correctly predicted the Supreme Court’s later holding in Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1017, 1034-1041 (Brinker), and held it is sufficient for an employer to make such breaks available to employees.
The trial court denied the motion for class certification for several reasons. First, plaintiff’s expert’s opinions were based on a legal standard rejected in Brinker. Second, Walgreens’s corporate e-mails contradicted plaintiffs’ assertion that Walgreens employees were forced to miss meal breaks on a class-wide basis. Third, the court denied the motion because the 44 form declarations of Walgreens employees, which plaintiff’s counsel submitted in support of their class certification motion, were unreliable. Most of the declarants recanted their declarations in whole or in part during their depositions. The trial court found the declarations “ ‘appall[ing]’ ” and was “‘especially troubled’” that so many witnesses had recanted.
In a published opinion, In re Walgreens Overtime Cases (2014) 231 Cal.App.4th 237, the Court of Appeal, Second District, Division One, affirmed. It held Walgreens’s meal break policy complied with the “make available” standard enunciated in Brinker. The Court of Appeal also agreed with the trial court’s rejection of plaintiff’s reliance on the expert witness declaration and on Walgreens’s corporate e-mails.
The Court of Appeal upheld the trial court’s rejection of the many form declarations offered by plaintiff’s counsel, noting “[t]he prevalence of falsity in the declarations raised questions about how [plaintiff’s] lawyers had created these declarations in the first place.” The court described in some detail how plaintiff’s counsel had disregarded Walgreens employees’ answers to their questions, instead sending them declarations that served plaintiff’s counsel’s purposes, and how those employees then signed the declarations without reading them, only to recant when confronted with the declarations in deposition. The Court of Appeal then observed:
Form declarations present a problem. When witnesses speak exactly the same words, one wonders who put those words there, and how accurate and reliable those words are. [¶] There is nothing attractive about submitting form declarations contrary to the witnesses’ actual testimony. This practice corrupts the pursuit of truth. [¶] It was not error for the trial court to give these unreliable declarations no weight.
(Emphasis added.)
The Supreme Court ordered the opinion depublished.
(Full disclosure: Last fall, Horvitz & Levy LLP successfully requested publication of the Court of Appeal’s opinion.)