United States District Court, E.D. California
Michael Righetti Attorney for Plaintiff Caren Winegarner
M. Scott Attorney for Defendant Rite Aid Corporation
ORDER GRANTING DEFENDANT RITE AID CORPORATION'S
MOTION FOR PARTIAL SUMMARY JUDGMENT
John A. Mendez United States District Judge
February 13, 2018, a hearing was held on the motion of
defendant Rite Aid Corporation ("Rite Aid") for
partial summary judgment (ECF 26). Michael Righetti of
Righetti Glugoski, P.C., appeared for plaintiff Caren
Winegarner; and Jeffrey D. Wohl of Paul Hastings LLP appeared
for Rite Aid.
Court having considered the papers on the motion, the
arguments of counsel and the law, and good cause appearing
therefor, IT IS ORDERED that Rite Aid's motion be and
hereby is GRANTED, for the reasons stated by the Court in the
attached Reporter's Transcript of Proceedings Re: Motion
for Summary Judgment (ECF 36).
TRANSCRIPT OF PROCEEDINGS RE: MOTION FOR SUMMARY
Plaintiff: RIGHETTI GLUGOSKI BY: MICHAEL C. RIGHETTI Attorney
at Law 456 Montgomery Street, Suite 1400 San Francisco, CA
Defendant Rite Aid: PAUL HASTINGS LLP BY: JEFFREY D. WOHL
Attorney at Law 101 California Street, 48th Floor San
Francisco, CA 94111
Court Reporter: Kacy Parker Barajas CSR No. 10915, RMR, CRR,
CRC 501 I Street Sacramento, CA 95814 kbaraj firstname.lastname@example.org
produced by computer-aided transcription.
CLERK: Calling 16-1028, Winegarner versus Rite Aid
approach and state their appearances, please.
RIGHETTI: Good afternoon, your Honor. Michael Righetti here
on behalf of the plaintiff, Caren Winegarner.
COURT: Good afternoon.
WOHL: Good afternoon, your Honor. Jeffrey Wohl for defendant
Rite Aid Corporation.
COURT: Good afternoon. All right. This is on this afternoon
on Rite Aid's motion for partial summary judgment.
Specifically Rite Aid seeks partial summary judgment on four
issues: 1. Rite Aid argues that plaintiff may not recover
overtime wages or other relief under a first cause of(action,
violation of Labor Code for the period before February 2nd,
2013, which would be three years before she commenced this
lawsuit. 2. That the plaintiff may not recover overtime wages
or other relief under her second cause of action, violation
of Business and Professions Code section 17200 for the period
before February 2nd, 2012. That would be four years before
she commenced this lawsuit. 3. That plaintiff may not recover
meal and rest period premiums for the period before February
2nd, 2013, in that case three years before she commenced this
action. So there's a statute of limitations argument on
those three issues, and then there's a separate issue as
to whether plaintiff should be allowed to recover meal and
rest period premiums under California Labor Code section
226.7 through her California Business and Professions Code
section 17200 claim, her second claim.
those are the four issues before the Court. The matters have
been thoroughly briefed. The Court has reviewed the briefs,
as well as a number of other cases that I want to discuss
with the lawyers this afternoon.
Righetti, on the statute of limitations issue, you attempt to
distinguish a case that the defendant relies on. I think
it's pronounced Batze, B-a-t-z-e, versus Safeway. You
don't say a lot. Then on page 10 of your brief you argue
that it was based on substantially different facts and
procedural history than the present case, and you go on to
try to distinguish that case.
didn't see that case to be substantially different than
what's before me in the present case. I found it to be
actually pretty persuasive. If that is my view of that case,
is there any other basis that you think would entitle your
client to a tolling under I think it's American Piping
Construction Company which you argue your client should be
entitled to? I know you also talk about Fenley and how - and
you submitted a declaration from your client trying to
explain why I should toll the statute because of that case as
don't want you necessarily to repeat the arguments, but I
did want to give you an opportunity to sort of respond to the
reply filed by the defendant in which they basically argued
you didn't do a good enough job of distinguishing that
case and that it's clear that tolling shouldn't apply
in this case.
RIGHETTI: Thank you, your Honor. That is what I wanted to
start with is responding to the reply specifically. I
don't think -- the defendant attacks the plaintiff for
not addressing Batze or trying to avoid the Batze case. I
don't think we're trying to avoid the Batze case. But
the factual record that existed in the Batze case is not
before this Court, and that was a motion for summary judgment
as well where the Court looked at the facts and the evidence
in that case and the class certification proceedings in that
case, and all that the Court did there was use the factors
set forth in Jolly versus Eli Lilly and American Pipe and
applied those factors to the facts and the evidence in the
COURT: Here's what they say in the reply. In the
opposition, plaintiff refuses to acknowledge, let alone
rebut, the presumption against American Pipe tolling under
California law when class certification is denied on lack of
commonality. Plaintiff instead claims there is no such
presumption. But in Batze versus Safeway, the Court of Appeal
could not have been clearer. Quote, here class certification
was denied due to lack of commonality giving rise to a
presumption that American Pipe tolling should not apply,
citing the case, and then there's a footnote about how
they also think that you quibble with the term
"commonality, " and you contend that certification
in Fenley was denied not based on lack of commonality but
rather the conclusion that common questions of fact and law
did not predominate. I interrupted you. Sorry. Go ahead.
RIGHETTI: No problem, your Honor. And I think it's --
this was an interesting issue to brief because we've been
litigating these cases now for so many years, and it was
actually sort of fun and interesting to brief an issue that
is different from, you know, the dozens and dozens of issues
that we've been briefing all along in the four or five
years we've been litigating these cases. So that was, in
and of itself, different which was interesting and got to
learn about a different issue of California law. But
we're not trying to avoid Batze. The only thing that
Batze did was take those principles of Jolly versus Eli Lilly
and applied them to the facts and evidence there. We need to
apply those same two factors to the facts and evidence that
exist in plaintiff Caren Winegarner's case.
RIGHETTI: Because the defendant, they're advocating for a
bright line rule that in all wage-and-hour class actions that
are denied for a lack of commonality. And there are a lot of
class certification decisions in California, whether it's
state or federal court, that are ultimately denied for a lack
of commonality. If this Court and other district courts where
they will trot this argument out in the other Rite Aid cases
state there's no tolling where there's a class
certification decision that's based on lack of
commonality, what will ultimately end up happening is the
class certification tolling principles will be turned on
their head. That's one point that we tried to make is you
will essentially be saying any class member in a class action
would need to move to intervene right away or file their own
individual case at the outset in order to protect their
interest in the ultimate event that there's a decision
that's denied for lack of commonality.
COURT: I didn't read the motion that way though because I
think they obviously threw that - there were four factors
that they asked me to decide. They throw that front and
center as one of the most important factors, but I don't
think they're saying that's the only factor here. It
is one factor. It's a factor that cuts against you. But I
don't think any court would go so far as to say just
because a court denied class cert on the basis of commonality
that's it. And I didn't read Rite Aid's argument
to be just that. I'm looking at page 2 of their reply,
and they actually talk about four factors. It's just one
of the factors that I thought cut against you.
RIGHETTI: And if I can get to the two main factors that
really are discussed in American Pipe, Jolly versus Eli
Lilly, and the Batze case are the foreseeability issue.
RIGHETTI: And the notice issue, whether the defendant was put
on notice. And if we look at those two issues, that's
what our opposition really focused on. If we look at
foreseeability, I set forth several decisions from district
and state courts granting class certification on behalf of
this very same group of employees just for a different time
period. The plaintiff in this particular - against whom this
motion is filed was a class member in that case and
participated in the settlement in that previous case. So if
we're talking about whether the denial of class
certification was foreseeable, which is one of the very first
principles that we have to look at, how can the Court rule
that applying the foreseeability factor to the facts in the
record in this case that the plaintiff Caren Winegarner
should have foreseen that class certification would be
principle stemmed from a mass tort action where it was
reasonable to deny tolling based on foreseeability where
there's such a great disparity in the facts and evidence
in mass tort actions. That was specifically a DES mass tort
claim. So that's where that principle came from. Where it
is not foreseeable that you should be able to have a class
action, yeah, you should - you should be put on notice that
you've got to intervene in the case right away in order
to protect the statute of limitations.
COURT: Here's the answer to your question. You can
respond to it. In making the lack of foreseeability argument,
plaintiff asked this Court simply to ignore the fact that
plaintiff's own counsel filed dozens of individual cases
on behalf of punitive class members during the pendency of
Fenley. In fact, the filing of such individual actions by
punitive class members is the first consideration to be
addressed when analyzing whether to override the presumption
against tolling, and then it goes on to cite Batze, so they
kind of throw it back on you.
RIGHETTI: It's a red herring, your Honor. The fact that
14 other class members decided to file their own individual
claims because they wanted to move forward, we've got to
put this all in context, all right? The Fenley case was
ongoing, and I started representing 14 individuals separately
from the class action.
RIGHETTI: Mr. Wohl and Paul Hastings, I don't mean to
address my colleague by name, but my opposing counsel filed
motions to stay all of those cases because they didn't
want to litigate the individual claims simultaneously while
they were litigating the class action. So I had to go out and
get declarations from my client saying, hey, we don't
want to participate in the class action. We want to proceed
with our own individual claims as they have a right to do.
fact that they did that, the fact that certain individuals
decided to proceed on an individual basis does not, in and of
itself, mean that denial was foreseeable. They moved to
intervene and filed their own claims - they didn't move
to intervene. They filed their own claims years before the
Fenley case was denied certification. They didn't file
their own cases after they got the denial. They just
didn't want to participate in that case. And just because
you have 14 individual cases substantially with a class
action doesn't mean denial of class certification is
foreseeable. And that's - they're trying to link
those two things up, and there's no logical connection
between the two. You just have 14 individuals who decided,
for whatever reason, way before the class cert was denied
that they wanted to have their own claims.
a lot of reasons why people don't want to be in a class
action. One, if you end up getting a settlement, the recovery
is oftentimes a lot worse than you otherwise would have if
you had your own case. You get to control your litigation.
You get to make decisions. You get face time with your
counsel. There's all kinds of reasons why you don't
want to participate in a class action. The fact that you have
those cases doesn't mean it was foreseeable that cert
would be denied.
to focus on whether class certification denial was
foreseeable, and that is why I put forth all of the other
cases. Fenley was the only case that was denied cert on this
issue'. Every other case cert was granted. How can we say
that denial was foreseeable? That's the point I wanted to
make on foreseeability. I wanted to emphasize that. The
second is the notice issue. The second factor is whether -
COURT: I don't have any questions about that. I
understand your argument. The other question I had is if you
can explain to me why Fenley was - class cert was denied on
July 2nd, 2014, why did it take 18 months after the denial of
class cert for your client to file this lawsuit, and how is
that not prejudicial to Rite Aid, as they argue? People
RIGHETTI: Her declaration states -
COURT: I know what her declaration states but -
RIGHETTI: She wasn't given notice of the denial.
COURT: But you were.
RIGHETTI: I wasn't given notice. Well, right. But I
didn't represent her. I didn't represent every - I
wasn't counsel in that class action. I hope your Honor
understands that. I was not the lawyer that represented the
punitive class in Fenley.
COURT: No. You represented the individuals.
RIGHETTI: I represented the individuals. So when I got denial
- when I heard about the denial of class cert in Fenley --
RIGHETTI: - I didn't represent - other than my 14
individuals, I didn't represent any of the punitive class
members in Fenley. Ms. Winegarner, the plaintiff in this
case, did not learn about the denial of class certification
in Fenley until - well, her declaration states it was like
less than three weeks or something before she filed her case.
COURT: She was aware of the litigation.
RIGHETTI: She was aware of the fact that a class
certification complaint had been filed because you had the
previous class action where she received a settlement in that
case. Then you have the new case filed. They send out these
Bel Air letters which you know about. She gets a Bel Air
letter. She gets calls from lawyers, the plaintiffs'
counsel in the Fenley case. She could have even received a
call from the defense lawyer during their investigation. They
got a lot of declarations from punitive class members in that
case that, you know, highlighted why there may have been lack
of commonality individualized issues. So both sides are going
out and interviewing class members. That's how she heard
about the case. What they didn't tell them was that cert
had been denied, and that's what I think is really what
this could be about is the notice issue. And actually for
current employees, they go out and get cert denied.
They're a current employee of the company ...