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Jaco v. Winco Holdings, Inc.

United States District Court, E.D. California

June 26, 2019

SHIRLEY JACO, on behalf of herself and all others similarly situated, Plaintiff,
WINCO HOLDINGS, INC. and DOES 1 through 50, inclusive, Defendants.


         This matter is before the court on plaintiff Shirley Jaco's motion to certify this court's March 31, 2019 order, granting in part defendant's motion to dismiss (Doc. No. 28), for an interlocutory appeal. (Doc. No. 35.) A hearing on this motion was held on June 18, 2018. Attorney Robin G. Workman appeared telephonically on behalf of plaintiff Shirley Jaco. Attorney Julie G. Yap appeared telephonically on behalf of defendant Winco Holdings, Inc. For the reasons set forth below, the court grants plaintiff's motion in part and certifies the issue of whether plaintiff's claim to accrued vacation wages is capable of being waived by way of a collective bargaining agreement. In addition, the court will stay this case while the interlocutory appeal is pending before the United States Court of Appeals for the Ninth Circuit.


         The allegations of plaintiff's operative complaint were fully addressed in the court's March 31, 2019 order and will not be repeated here. (See Doc. No. 28 at 1-3.) In that prior order, the court dismissed plaintiff's first through fourth causes of action with prejudice; struck plaintiff's class and representative claims which were based on alleged violations of California Labor Code § 227.3; and dismissed plaintiff's fifth through ninth causes of action with leave to amend. (Id. at 15-16.) This case currently proceeds on plaintiff's May 6, 2019 third amended complaint (“TAC”). (Doc. No. 34.) On May 15, 2019, plaintiff filed a motion to certify the court's March 31, 2019 order for interlocutory appeal. (Doc. No. 35.) Defendant filed an opposition on June 4, 2019. (Doc. No. 39.) Plaintiff filed a reply on June 11, 2019. (Doc. No. 40.)


         The district court may certify an interlocutory appeal to the circuit court of appeal when an order that is not otherwise appealable involves “a controlling question of law as to which there is substantial ground for difference of opinion” and “an immediate appeal from the order may materially advance the ultimate termination of the litigation.” 28 U.S.C. § 1292(b). If these grounds are not met, the circuit court lacks jurisdiction to hear the matter. See 28 U.S.C. § 1291 (granting jurisdiction generally to the circuit courts only over “final decisions” of the district courts); Couch v. Telescope, Inc., 611 F.3d 629, 632-33 (9th Cir. 2010) (noting that the statutory restrictions of 28 U.S.C. § 1292(b) are jurisdictional). This statutory provision “was intended primarily as a means of expediting litigation by permitting appellate consideration during the early stages of litigation of legal questions which, if decided in favor of the appellant, would end the lawsuit. . ..” United States v. Woodbury, 263 F.2d 784, 787 (9th Cir. 1959). Ultimately, however, the question need not be dispositive of the lawsuit for an interlocutory appeal to be appropriate. Id.

         Certification of a question for interlocutory appeal requires the district court to find, in writing, that all the following requirements under § 1292(b) are met: (1) there is a controlling question of law; (2) there is substantial ground for difference of opinion about that question of law; and (3) an immediate appeal may materially advance the ultimate termination of the litigation. Couch, 611 F.3d at 633. If any of the requirements are not met, then the order certifying the questions is jurisdictionally defective. Id. Certification of interlocutory appeals is the exception, not the rule, and therefore § 1292(b) “must be construed narrowly.” James v. Price Stern Sloan, Inc., 283 F.3d 1064, 1068 n.6 (9th Cir. 2002).


         To the extent this court's March 31, 2019 order granted defendant's motion to dismiss, it did so based upon a conclusion that plaintiff's state law claims[1] for failure to pay employees all accrued vacation wages upon termination were preempted by the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185(a), and that the WinCo collective bargaining agreement (“CBA”) clearly and unmistakably waived WinCo's employees' right to receive accrued vacation pay upon termination under identified circumstances. (See Doc. No. 28.) Plaintiff now argues that an interlocutory appeal of both of these holdings is appropriate pursuant to 28 U.S.C. § 1292(b). (Doc. No. 35-1.)

         A. Controlling Question of Law

          Plaintiff argues there are two separate controlling questions of law which are appropriate for interlocutory appeal: (1) whether a CBA can validly waive an employee's right to accrued and unused vacation time upon termination (hereinafter “the waiver issue”); and (2) whether a CBA providing for the forfeiture of accrued and unused vacation time upon termination invokes the LMRA, and thus preempts state law claims (hereinafter “the preemption issue”). (Doc. No. 35-1 at 12-13.) Defendant advances separate arguments as to why each of these issues fails to present a controlling question of law for purposes of § 1292(b). (See Doc. No. 39 at 13-18; 18- 21.)

         A question of law is “controlling” under § 1292(b) if resolving it on appeal could materially affect the outcome of the litigation in the district court. In re Cement Antitrust Litig., 673 F.2d 1020, 1026 (9th Cir. 1982). Moreover, although it appears the Ninth Circuit has not had occasion to address the issue, other courts have found the question of law at involved must be a “pure question of law, ” not a mixed question of law and fact, or an application of law to a specific set of facts. See Ahrenholz v. Board of Trs., 219 F.3d 674, 675-77 (7th Cir. 2000) (observing that Congress was referring to a pure question of law in § 1292(b), because “if a case turned on a pure question of law, something the court of appeals could decide quickly and cleanly without having to study the record, the court should be enabled to do so without having to wait till the end of the case.”); Park W. Galleries, Inc. v. Hochman, 692 F.3d 539, 543 (6th Cir. 2012) (“On interlocutory appeal, we do not review the district court's findings of fact, and instead consider only pure questions of law.”) (quotations omitted); Kennedy v. St. Joseph's Ministries, Inc., 657 F.3d 189, 195 (4th Cir. 2011) (an interlocutory appeal is appropriate under § 1292(b) when the court is “faced with a pure question of law”); McFarlin v. Conseco Servs., LLC, 381 F.3d 1251, 1259 (11th Cir. 2004) (“To summarize, § 1292(b) appeals were intended, and should be reserved, for situations in which the court of appeals can rule on a pure, controlling question of law without having to delve beyond the surface of the record in order to determine the facts.”); see also Bibeau v. Pac. Nw. Research Found. Inc., 188 F.3d 1105, 1113 (9th Cir. 1999) (noting an interlocutory appeal “will not lie for such claims if the district court determines that there are genuine issues of fact involved”); Haw. ex rel. Louie v. JP Morgan Chase & Co., 921 F.Supp.2d 1059, 1065-66 (D. Haw. 2013) (noting the pure question of law standard and deciding that, despite the existence of some factual disputes, an interlocutory appeal could be certified on questions of law); Rieve v. Coventry Health Care, Inc., 870 F.Supp.2d 856, 879 (C.D. Cal. 2012) (declining to certify an interlocutory appeal that did not involve a pure question of law).[2]

         1. Waiver[3]

         First, the question of whether an employee's right to accrued and unused vacation time upon termination can be forfeited by the terms of a CBA is a pure question of law involving the interpretation of California Labor Code § 227.3. Moreover, that question of law is sufficiently novel because it involves the interpretation of arguably inconsistent California court decisions. As indicated in the March 31, 2019 order resolving defendant's motion to dismiss, the undersigned had difficulty reconciling the California Supreme Court authority holding that vested vacation time is protected from forfeiture by § 227.3, see, e.g., Suastez v. Plastic Dress-Up Co., 31 Cal.3d 774, 784 (1982), with a decision of the California Court of Appeal suggesting that an employee may waive her right under § 227.3 to payment for accrued vacation time by way of a CBA if the agreement is clear and unmistakable, see Choate v. Celite Corp., 215 Cal.App.4th 1460, 1465 (2013). (Doc. No. 28 at 5-8.) Ultimately, the court was persuaded by the decision in Choate, which concluded that although the waiver in the CBA before it was not clear and unmistakable, unions could bargain away their members' statutory right to payment under § 227.3. See Choate, 215 Cal.App.4th at ...

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