Gallano v. Burlington Coat Factory of Cal., LLC, 2021 WL 3616152 (Cal. Ct. App. 2021)

Krizel Gallano, a former employee of Burlington Coat Factory, filed this putative class action in which she alleged that Burlington forces its employees to pay for business losses incurred for common on-the-job mistakes by “misusing” California’s shoplifting statute (Cal. Pen. Code § 490.5) and intimidating employees into signing promissory notes that result in their shouldering the debt for the company’s financial losses.  Among other things, Gallano alleged that Burlington had violated Cal. Lab. Code § 2802, which requires employers to indemnify employees for “expenditures or losses” that were incurred in direct consequence of the discharge of their duties for the employer.  In response, Burlington filed an anti-SLAPP motion to dismiss the 2802 claim (arguing that Gallano’s claims arose out of protected activity because the challenged conduct was undertaken in anticipation of litigation), but the trial court denied it.  In this opinion, the Court of Appeal affirmed the trial court’s denial of Burlington’s anti-SLAPP motion, holding that when Gallano executed the promissory note at the direction and for the benefit of Burlington, she incurred an economic loss sufficient to trigger the protections of Section 2802.  The Court rejected Burlington’s additional argument based upon its “post-motion conduct in disclaiming any interest in enforcing the promissory note or the civil demand letters [because it] appears designed to preempt this lawsuit from proceeding as a class action.”

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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.