Barriga v. 99 Cents Only Stores LLC, 2020 WL 3481717 (Cal. Ct. App. 2020)

Sofia Wilton Barriga filed this lawsuit against her employer, 99 Cents Only, alleging that the “zero-tolerance” policy requiring its stores to lock their doors at closing time forced nonexempt employees such as herself and those similarly situated to wait for as long as 15 minutes for a manager with a key to let them out of the store.  Plaintiff alleged that the zero-tolerance policy denies employees pay for the time they have to wait to be let out of the store, and it also denies some employees their full half-hour meal break.  In opposition to plaintiff’s motion to compel certification of two class actions, 99 Cents Only submitted 174 declarations from current and former nonexempt employees who declared that graveyard shift employees could leave the store immediately without waiting to be let out and that those employees who did have to wait were let out promptly and paid for the time they waited.  Only 53 of the 174 declarants were members of the putative class.  Plaintiff took the depositions of 12 of the declarants, and although most testified they understood what they were signing and did so freely and without coercion or promise of promotion or a pay raise, others testified they “had no idea what the lawsuit was about or even why they had been called upon to testify.”  Plaintiff moved to strike all 174 declarations on the ground that the process by which they were obtained was improper.  The trial court concluded it lacked the “statutory authority” to strike the declarations and denied plaintiff’s motion to strike and also the class certification motion.

The majority of the Court of Appeal panel reversed, holding that “California courts have recognized the trial court has both the duty and the authority to exercise control over precertification communications between the parties and putative class members to ensure fairness in class actions.”  The Court reversed the orders denying plaintiff’s motion to strike the declarations and the class certification motion.  In dissent, Justice Slough questioned why the Court had reversed the denial of the motion to strike the declarations, which plaintiff had not challenged, and further why the Court had not analyzed whether the denial of said motion prejudiced the outcome of the case:  “This is a first.  Every court that has found an abuse of discretion in an evidentiary ruling has gone on to determine whether the error was prejudicial to the trial court’s certification decision” (emphasis in original).

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Photo of Tony Oncidi Tony Oncidi

Anthony J. Oncidi is the co-chair of the Labor & Employment Law Department and heads the West Coast Labor & Employment group in the firm’s Los Angeles office.

Tony represents employers and management in all aspects of labor relations and employment law, including…

Anthony J. Oncidi is the co-chair of the Labor & Employment Law Department and heads the West Coast Labor & Employment group in the firm’s Los Angeles office.

Tony represents employers and management in all aspects of labor relations and employment law, including litigation and preventive counseling, wage and hour matters, including class actions, wrongful termination, employee discipline, Title VII and the California Fair Employment and Housing Act, executive employment contract disputes, sexual harassment training and investigations, workplace violence, drug testing and privacy issues, Sarbanes-Oxley claims and employee raiding and trade secret protection. A substantial portion of Tony’s practice involves the defense of employers in large class actions, employment discrimination, harassment and wrongful termination litigation in state and federal court as well as arbitration proceedings, including FINRA matters.

Tony is recognized as a leading lawyer by such highly respected publications and organizations as the Los Angeles Daily JournalThe Hollywood Reporter, and Chambers USA, which gives him the highest possible rating (“Band 1”) for Labor & Employment.  According to Chambers USA, clients say Tony is “brilliant at what he does… He is even keeled, has a high emotional IQ, is a great legal writer and orator, and never gives up.” Other clients report:  “Tony has an outstanding reputation” and he is “smart, cost effective and appropriately aggressive.” Tony is hailed as “outstanding,” particularly for his “ability to merge top-shelf lawyerly advice with pragmatic business acumen.” He is highly respected in the industry, with other commentators lauding him as a “phenomenal strategist” and “one of the top employment litigators in the country.”

“Tony is the author of the treatise titled Employment Discrimination Depositions (Juris Pub’g 2020; www.jurispub.com), co-author of Proskauer on Privacy (PLI 2020), and, since 1990, has been a regular columnist for the official publication of the Labor and Employment Law Section of the State Bar of California and the Los Angeles Daily Journal.

Tony has been a featured guest on Fox 11 News and CBS News in Los Angeles. He has been interviewed and quoted by leading national media outlets such as The National Law JournalBloomberg News, The New York Times, and Newsweek and Time magazines. Tony is a frequent speaker on employment law topics for large and small groups of employers and their counsel, including the Society for Human Resource Management (“SHRM”), PIHRA, the National CLE Conference, National Business Institute, the Employment Round Table of Southern California (Board Member), the Council on Education in Management, the Institute for Corporate Counsel, the State Bar of California, the California Continuing Education of the Bar Program and the Los Angeles and Beverly Hills Bar Associations. He has testified as an expert witness regarding wage and hour issues as well as the California Fair Employment and Housing Act and has served as a faculty member of the National Employment Law Institute. He has served as an arbitrator in an employment discrimination matter.

Tony is an appointed Hearing Examiner for the Los Angeles Police Commission Board of Rights and has served as an Adjunct Professor of Law and a guest lecturer at USC Law School and a guest lecturer at UCLA Law School.