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Winegarner v. Rite Aid Corp.

United States District Court, E.D. California

February 27, 2018

CAREN WINEGARNER, an individual, Plaintiff,
RITE AID CORPORATION, and DOES 1 through 50 inclusive, Defendants.

          Michael Righetti Attorney for Plaintiff Caren Winegarner

          Justin M. Scott Attorney for Defendant Rite Aid Corporation


          Hon. John A. Mendez United States District Judge

         On 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.

         The 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).



         For the Plaintiff: RIGHETTI GLUGOSKI BY: MICHAEL C. RIGHETTI Attorney at Law 456 Montgomery Street, Suite 1400 San Francisco, CA 94104

         For the Defendant Rite Aid: PAUL HASTINGS LLP BY: JEFFREY D. WOHL Attorney at Law 101 California Street, 48th Floor San Francisco, CA 94111

         Official Court Reporter: Kacy Parker Barajas CSR No. 10915, RMR, CRR, CRC 501 I Street Sacramento, CA 95814 kbaraj

         Transcript produced by computer-aided transcription.

         THE CLERK: Calling 16-1028, Winegarner versus Rite Aid Corporation.

         Counsel approach and state their appearances, please.

         MR. RIGHETTI: Good afternoon, your Honor. Michael Righetti here on behalf of the plaintiff, Caren Winegarner.

         THE COURT: Good afternoon.

         MR. WOHL: Good afternoon, your Honor. Jeffrey Wohl for defendant Rite Aid Corporation.

         THE 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.

         So 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.

         Mr. 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.

         I 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 well.

         So I 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.

         MR. 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 Batze case.

         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.

         MR. 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.

         THE COURT: Okay.

         MR. 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.

         THE 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.

         MR. 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.

         THE COURT: Right.

         MR. 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 denied.

         That 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.

         THE 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.

         MR. 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.

         THE COURT: Right.

         MR. 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.

         The 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.

         There's 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.

         We have 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 -

         THE 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 disappear.

         MR. RIGHETTI: Her declaration states -

         THE COURT: I know what her declaration states but -

         MR. RIGHETTI: She wasn't given notice of the denial.

         THE COURT: But you were.

         MR. 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.

         THE COURT: No. You represented the individuals.

         MR. RIGHETTI: I represented the individuals. So when I got denial - when I heard about the denial of class cert in Fenley --

         THE COURT: Right.

         MR. 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.

         THE COURT: She was aware of the litigation.

         MR. 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 ...

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