Zuniga v. Alexandria Care Ctr., LLC, 2021 WL 3560665 (Cal. Ct. App. 2021)

Rosalinda Zuniga was employed by Alexandria Care as a housekeeper who filed a PAGA claim, alleging her former employer failed to provide required meal and rest breaks, to indemnify employees for expenditures and to maintain required records.  The trial court excluded the expert testimony of Zuniga’s expert witnesses on the grounds that one of them (Dean Van Dyke) was not qualified as an expert to testify about computer data processing and the other (Richard Drogin, Ph.D.) sought to offer opinions that had not been disclosed during his deposition, and his analysis was undertaken after his deposition and trial testimony.  Without the expert testimony, the trial court ruled in favor of the employer.  In this opinion, the Court of Appeal reversed the trial court’s judgment and remanded the case for a new trial.

The Court held that Zuniga was an “aggrieved person” under PAGA even though she already had settled her individual claims after they had been ordered to arbitration.  The Court further held that the trial court had abused its discretion by excluding Dr. Drogin’s expert testimony because it was based upon spreadsheets created by Van Dyke’s company (iBridge LLC), which the trial court had found to be inadmissible, citing Cal. Evid. Code § 801(b) which states that the basis for the expert opinion must be reliable, “whether or not admissible.”  However, the Court held the trial court did not abuse its discretion by excluding the iBridge spreadsheets, which had not been properly authenticated.  See also Johnson v. Maxim Healthcare Servs., Inc., 66 Cal. App. 5th 924 (2021) (employee of healthcare staffing company could proceed with PAGA claim arising from employer’s requirement that employees sign a Non-Solicitation, Non-Disclosure and Non-Competition Agreement in violation of Cal. Lab. Code § 432.5; claim not barred by statute of limitations because employee was an “aggrieved employee” with standing to pursue claim); Mauia v. Petrochem Insulation, Inc., 5 F.4th 1068 (9th Cir. 2021) (California state law regarding meal and rest periods does not apply to employees working on oil platforms on the Outer Continental Shelf).

Email this postTweet this postLike this postShare this post on LinkedIn
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.