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contact me kimberly a. kralowec kralowec law, p.c. 44 montgomery street, suite 1210 san francisco, ca 94104 tel: (415) 546-6800 fax: (415) 546-6801 email: [email protected] about about this blog about me legal services in the press useful links for lawyers feeds disclaimer may 2018 sun mon tue wed thu fri sat 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 categories appellate practice attorneys’ fees (ccp §1021.5) class action "fairness" act class actions - arbitration class actions - certification class actions - choice of law class actions - discovery class actions - general class actions - settlements class actions - supreme court general kralowec law, p.c. law blogging mcle programs news reports and practice articles prop. 64 - appellate briefs prop. 64 - appellate decisions prop. 64 - general prop. 64 - injury in fact prop. 64 - oral arguments prop. 64 - pending appeals prop. 64 - supreme court prop. 64 - trial court orders schubert jonckheer kolbe & kralowec llp supreme court and court of appeal arguments the clra the furth firm llp ucl - "fraudulent" prong ucl - "unfair" prong ucl - "unlawful" prong ucl - arbitration ucl - class certification ucl - competitor actions ucl - federal decisions ucl - injunctive relief ucl - legislative activity ucl - preemption ucl - public prosecutor actions ucl - remedies in general ucl - restitution ucl - supreme court see more archives may 2018 april 2018 march 2018 february 2018 january 2018 december 2017 november 2017 october 2017 september 2017 august 2017 more... former site archives (17200blog.com) may 2005 april 2005 march 2005 february 2005 january 2005 december 2004 november 2004 october 2004 september 2004 august 2004 july 2004 june 2004 may 2004 april 2004 march 2004 february 2004 january 2004 december 2003 october 2003 friday, may 11, 2018 "supreme court swipes left on tinder petition for review" as reported on wednesday by my fellow bloggers over at at the lectern , the supreme court denied review this week in my unruh act and ucl case for age discrimination against tinder. candelore v. tinder , no. s247527. see these two blog posts for more about the case. i'm particularly pleased by this result. this one was a challenge, given the published opinion and what, at first glance, might look like a split in authority between intermediate appellate decisions. i worked hard to craft a series of compelling reasons for denying review, and i'm very happy that the supreme court seems to have found them persuasive. the denial of review sends a strong signal that the court of appeal correctly decided the case and properly construed the supreme court’s unruh act precedents. the court of appeal's published opinion is candelore v. tinder, inc. , 19 cal.app.5th 1138 (2018). posted by kimberly a. kralowec at 04:00 am in appellate practice | permalink | comments (0) thursday, may 10, 2018 ninth circuit on admissibility of evidence at the class certification stage: sali v. corona regional med. ctr. in sali v. corona regional medical center , ___ f.3d ___ (9th cir. may 3, 2018), the district court denied class certification because (among other reasons) the plaintiffs' evidence of adequacy and typicality was not admissible. the ninth circuit reversed, holding that admissible evidence is not required at the class certification stage: because a class certification decision “is far from a conclusive judgment on the merits of the case, it is ‘of necessity . . . not accompanied by the traditional rules and procedure applicable to civil trials.’” [ in re ] zurn pex [ plumbing prod. liab. litig. ], 644 f.3d [604,] 613 [(8th cir. 2011)] (quoting eisen v. carlisle & jacquelin , 417 u.s. 156, 178 (1974)). notably, the evidence needed to prove a class’s case often lies in a defendant’s possession and may be obtained only through discovery. limiting class-certification-stage proof to admissible evidence risks terminating actions before a putative class may gather crucial admissible evidence. and transforming a preliminary stage into an evidentiary shooting match inhibits an early determination of the best manner to conduct the action. it follows that we have found an abuse of discretion where a “district court limited its analysis of whether” class plaintiffs satisfied a rule 23 requirement “to a determination of whether plaintiffs’ evidence on that point was admissible.” ellis v. costco wholesale corp. , 657 f.3d 970, 982 (9th cir. 2011). although we have not squarely addressed the nature of the “evidentiary proof” a plaintiff must submit in support of class certification, we now hold that such proof need not be admissible evidence. inadmissibility alone is not a proper basis to reject evidence submitted in support of class certification. “neither the possibility that a plaintiff will be unable to prove his allegations, nor the possibility that the later course of the suit might unforeseeably prove the original decision to certify the class wrong, is a basis for declining to certify a class which apparently satisfies” rule 23. blackie v. barrack , 524 f.2d 891, 901 (9th cir. 1975). therefore, in evaluating a motion for class certification, a district court need only consider “material sufficient to form a reasonable judgment on each [rule 23(a)] requirement.” id. the court’s consideration should not be limited to only admissible evidence. slip op. at 13-15 (footnote omitted). posted by kimberly a. kralowec at 07:14 am in class actions - certification , class actions - discovery | permalink | comments (0) tuesday, may 01, 2018 supreme court affirms class certification in misclassification case: dynamex operations west, inc. v. superior court (lee) in dynamex operations west, inc. v. superior court (lee) , ___ cal.5th ___ (apr. 30, 2018), the supreme court determined that the trial court correctly granted class certification of certain wage and hour claims, all of which were based on the theory that the defendant had misclassified the plaintiffs as independent contractors instead of employees. (my post on the court of appeal's opinion in this case is here .) those who handle wage and hour matters will be very interested in the court's lengthy discussion of the test for determining whether a worker is an employee or an independent contractor for purposes of the obligations imposed by the wage orders. slip op at. 22-77. in brief summary, the wage orders set forth "three alternative definitions of employment": "'(a) to exercise control over the wages, hours or working conditions, or (b) to suffer or permit to work, or (c) to engage, thereby creating a common law employment relationship.'" slip op. at 40 (quoting martinez v. combs , 49 cal.4th 35, 64 (2010)) (emphasis in original). the parties disagreed on whether definitions (a) or (b) should apply for purposes of determining whether an employer-employee relationship exists (as opposed to other purposes, such as whether a joint employer relationship exists). id. at 46. the defendant argued that only definition (c), the common-law test, should apply. see id. the supreme court determined that it need not decide whether definition (a) applied, because it held that definition (b) did, and under that definition, the claims were properly certified for class treatment. id. at 46-47, 78-81. construing definition (b), the court held that whether a hiring business "employed" a worker within the meaning of the "suffer or permit to work" standard should be determined using what has come to be known as the "abc test." id. at 64-77. the court explained: the abc test presumptively considers all workers to be employees, and permits workers to be classified as independent contractors only if the hiring business demonstrates that the worker in question satisfies each of three conditions: (a) that the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performanc