Felczer vs. Apple Inc

Motion for New Trial

Cal. Super. - 4th Dist.December 16, 2011

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 21 28 Hogue & Belong, APC 170 Laurel Street San Diego, CA 92101 619.238.4720 JEFFREY L. HOGUE (SBN 234557) TYLER J. BELONG (SBN 234543) ERIK A. DOS SANTOS (SBN 309998) HOGUE & BELONG 170 Laurel Street San Diego, CA 92101 Telephone: (619) 238-4720 Facsimile: (619) 270-9856 Attorneys for the Class SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN DIEGO - CENTRAL BRANDON FELCZER, individually, RYAN GOLDMAN, individually, RAMSEY HAWKINS, individually and JOSEPH LANE CARCO, on behalf of themselves and all others similarly situated, on behalf of themselves and all others similarly situated, Plaintiffs, VS. APPLE INC., a California corporation and DOES 1-300, inclusive. Defendants. ELECTRONICALLY FILED Superior Court of California, County of San Diego 10/02/2017 at 03:24:00 PM Clerk of the Superior Court By Katelin O'Keefe, Deputy Clerk CASE NO.: 37-2011-00102593-CU-OE-CTL THE CLASS’ MOTION FOR A NEW JURY TRIAL [IMAGED FILE] Complaint Filed: December 16, 2011 Trial Date October 14, 2016 Dept: C-67 Judge: Hon. Eddie C. Sturgeon Verdict Rendered: December 9, 2016 Notice of Entry of Judgment Served: September 19, 2017 Court’s Jurisdiction: November 20, 2017 Expires: Hearing Date: October 20, 2017 Time: 11:00 am Dept.: C-67 THE CLASS’ MOTION FOR A NEW JURY TRIAL CASE NO.: 37-2011-00102593-CU-OE-CTL 1 TABLE OF CONTENTS 2 3 LL INTRODUCTION... otters 1 4 II. MATERIAL PROCEDURAL AND FACTUAL HISTORY ........ccooviiiiiiiiinns 1 > A, The Rest Perio Clalit mmm: ss nssummmns o 65 5 sous ¢ £55 5 onsen § 55 650m00 & § 5 § 655656 5658 1 @ B. The Meal Period Claim.............oiuiiiiitiiiii ieee 3 7 C. The Damages Awarded. ...........ooiiiiiiiii ieee eee 5 8 ¢ II. LEGAL STANDARD... eee 5 10 A. Against the Law (CCP § 657(6)).....oeniiiiiiie iii eevee e e 6 1 B. Error In Law (CCP § 657(7)). «venue eee eee eee 6 12 C. Insufficient Damages (CCP § 657(5))cascscs sss: sanmmnassssssnssmansssssssanmunisssssnasas 6 12 DD. Insufficient Evidenas (CCP § 65700) umn: 2: snmsosina 15 ¢ 5 smmssmans 2.5 £5 smssooness 15 1 5 suse 1 14 15 IV. ARGUMENT oe 7 50 A. Not Permitting the Jury to Make Any Finding on the Class’ Certified Rest Period 17 Scheduling Theory is “Against the Law.” ............cooiiiiiiiiiiiiii, 7 ip B. A New Trial Should Be Granted Because Unnecessary and Prejudicial Questions 19 Were Asked That Were Inconsistent With The Class’ Meal Period Policy 2 3 TST) 8 21 The Damages Awarded by The Jury Were Insufficient............................... 11 22 D. There was Insufficient Evidence for the Jury’s Finding that Defendant’s Rest 23 Period Policy Was Lawful; And It Was Also “Against Law” (CCP § 657(6) and 2 (7) eee 11 25 Vv CONCLUSION. LL eee eee eee 14 26 27 28 i Hogue & Belong, APC 170 Laurel Street THE CLASS’ MOTION FOR A NEW JURY TRIAL saniegg La Juli] CASE NO.: 37-2011-00102593-CU-OE-CTL 619.238.4720 1 TABLE OF AUTHORITIES 2 Cases = All-West Design, Inc. v. Boozer (1986) 183 Cal.App.3d 1212 ....coiiiiiiiiiiiieeiieeeeeeeeeeeeeenn 9 4 Bell v. Bayerische Motoren Werke Aktiengesellschaft (2010) 181 Cal.App.4th 1108 ................... 9 > Bradley v. Networkers International, LLC (2012) 211 Cal. App.4th 1129 ......cccoviiiiiiiiiniiineenns 9 i Brinker v. Superior Court (2012) 53 Cal.4th 1004 .........ccoooiiiieeiiie eee eee eee 2,9, 12 ’ Bufil v. Dollar Financial Group (2008) 162 Cal. App.4th 1193 coir 9 8 Candido v. Huitt (1984) 131 Cal ADDS DIB cuniumosmsn wenmunnun sss osnesessssman ss wissen sms sms ws 7 ? Collins v. Sutter Memorial Hospital (2011) 196 Cal. App.4th 1.....ccccooiiiiiiiiiiniiiiiiieeee, 6 10 Donlen v. Ford Motor Co. (2013) 217 Cal. App..4th 138 ccc 6 H Falls v. Superior Court (1987) 194 Cal. APP.3d 851 ...eeiiiiiieiie eects 6 12 Fuller-Austin Insulation Co. v. Highlands Ins. Co. (2006) 135 Cal. App.4th 958.......cccovvuiernneennns 7 13 Green v. Soule (1904) 145 Cal. O6......ccoooeeeieeeeeeee eects eter eee ee essere ees 7,12 14 J.P. v. Carlsbad Unified School Dist. (2014) 232 Cal.App.4th 323 ......ooiiiiiiiiiieeiiereeeeeee 6 > Knight v. Roche (1880), 56 Cal. 15...ccuuiiiiiiie ieee eee steers sabes sabre 6 to Lubin v. The Wackenhut Corp. (2016) 5 Cal. App.5th 926 ........ooeiiiiiiiiiiiiiiieeeeeeeeee 9 17 Manufacturers’ Finance Corp. v. Pacific Wholesale Radio (1933) 130 Cal. App. 3d 239.......... 12 2 McCown v. Spencer (1970) 8 Cal.APP.3d 216 ....ooeiiiiiiieiiie ects eee 12 19 Myers Building Industries, Ltd. v. Interface Technology, Inc. (1993) 13 Cal. App.4th 949 ........... 7 20 Neal v. Montgomery Elevator Co. (1992) 7 Cal.App.4th 1194 .......ccooiiiiiiiiiiiiiieeeee en 8 21 Norden v. Hartman (1952) 111 Cal. APP.2d 751 coconuts eevee 7 22 Schmeltzer v. Gregory (1968) 266 Cal. App. 2d 420....cccoueiiiiieiiie eects eee 6 = Shapiro v. Prudential Property and Casualty Co. (1997) 52 Cal. App.4th 722.....ccccceevvivevnueennne. 6 24 Shaw v. Hughes Aircraft Co. (2000) 83 Cal.App.4th 1336 .....cooiiiiiiiiiiiieceieeeeeee ee 9 2 Tagney v. Hoy (1968) 260 Cal. APP. 2d 372 eco eee eee as 6 26 Taylor v. Nabors Drilling USA, LP (2014) 222 Cal. App.4th 1228 .....cccviiiiiiiiiiieeeeeeee 6, 8 27 Treber v. Superior Court of San Francisco (1968) 68 Cal.2d 128...........cccceevvveeeecciieeeeccieee e , 6 28 ) ii. 0 Laurel Suet THE CLASS’ MOTION FOR A NEW JURY TRIAL saniegg La Juli] CASE NO.: 37-2011-00102593-CU-OE-CTL 619.238.4720 1 || Trujillo v. North County Transit Dist. (1998) 63 Cal. App.4th 280 ......cccccevvierniiiiieiiiiniieniecieene 8 2 || West v. Girard (1884), 4 P. 565... eee eee eee tte ees vae ee sear ae ae saaae eee aae ae ae snnnaas 6 Federal Cases United States v. Yagi, (N.D. Cal. Oct. 25, 2013) No. CR-12-0483 EMC, 2013 U.S. Dist. LEXIS LIBTO sus ausswusrmen swan swsivmesnsnsss sve ws 45 008541 538 405 SHES 45 455 908 WEES SHH URANO SH SYA SSS OHS SYR 998 g Statutes California Code of Civil Procedure $226.7 ......ooovieiiiiieiiiieieeeeeeeeeeeeeeeeeeeeeeeeeeeaeeae e v a aeaeae e v anaes 9 10 California Code Of CIVIl ProCedUIE §512 ....ueuiiiiiiiiiieeiee ieee estate eee ee ee eee verses se s se veanans 9 California Code of Civil Procedure §657 .......ccoooeiiiiiiiiiiiieiitienieeeeeeee eects passim 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Zl 28 Hogue & Belong, APC iii. To Laurel Soot THE CLASS’ MOTION FOR A NEW JURY TRIAL San Diego, CA 92101 . = _ - B - po rh CASE NO.: 37-2011-00102593-CU-OE-CTL Hogue & Belong, APC 170 Laurel Street San Diego, CA 92101 619.238.4720 AN Un BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 I. INTRODUCTION The Court should grant this motion for new trial for four reasons. First, the special verdict form (“SVF”’) completely omitted one of the Class’ certified theories of liability. This class action lawsuit included a rest period claim that had two certified rest break theories: the “policy theory” and the “scheduling theory.” But, the SVF only accounted for the policy theory and was devoid of any mention of the scheduling theory. By failing to account for the rest break scheduling theory in the SVF, it denied the jury the opportunity to make any findings concerning Defendant’s rest break scheduling practices. Omitting a theory of liability is “against the law” because it does not resolve a “controverted issue,” and therefore requires a new trial. Second, the SVF erroneously bifurcated the Class’ meal period policy theory.! The dismemberment of a single certified theory resulted in the SVF being worded so prejudicially that that on the policy theory the Class was doomed to fail before the jury even began their deliberations. Third, the Class was awarded insufficient damages. The Class prevailed on their meal period scheduling theory and, therefore, should have been awarded the total damages they requested. Fourth, there was insufficient evidence and the jury went “against the law” in finding Defendant’s rest break policy lawful. For the reasons discussed below, the Court should grant the Class’s Motion for a New trial. II. MATERIAL PROCEDURAL AND FACTUAL HISTORY A. The Rest Period Claim. Defendant’s Rest Period Policy stated: e Apple provides a 10-minute paid rest period for every 4 hours worked by all nonexempt ! The verdict form bifurcated the Class’ meal period claim into “missed” meal periods and “late” meal periods. (Ex. “A”- Special Verdict form at pp. 2-6.) -1- THE CLASS’ MOTION FOR A NEW JURY TRIAL CASE NO.: 37-2011-00102593-CU-OE-CTL Hogue & Belong, APC 170 Laurel Street San Diego, CA 92101 619.238.4720 AN Un BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 employees.... (Trial Exs. 186-188, 1010, 1045, 1046).) On July 21, 2014, the Court certified a rest break class: All of Defendant’s non-exempt retail employees who did not receive a first, paid 10 minute rest period during shifts of greater than 3.5 but less than 6 hours, a second rest period during shifts greater than 6 hours but less than 8 hours, or a third rest period during shifts greater than 10 hours but less than 12 hours any time between December 16, 2007 to August 1, 2012. (Ex. B, Certification Order, at p. 5.) The Court certified two theories for the rest period claim: Rest Breaks. Plaintiffs seek to certify rest break subclasses of all non-exempt corporate and retail theories for certification: (1) Defendant’s rest break policies from December 2007 through August 12, 2012 [sic] (rest break policies) were facially unlawful. ...and (2) Defendant scheduled rest breaks late.... Finally, contrary to Defendant’s argument, Plaintiffs’ scheduling theory is complementary with their unlawful policy theory because its meal/rest period policy stated the law incorrectly. Thus, at the time that Defendant’s rest break policy failed to authorize and permit compliant rest breaks, its scheduling policy/practice also affirmatively impeded or discouraged compliant rest breaks. Both theories are suitable for class treatment under Brinker’ [...]. (Id. at p. 8 [emphasis added].) On December 5, 2017, the Court heard argument regarding Defendant’s proposed SVF. The Class argued that the SVF needed to include the rest period scheduling theory: One of the first things that the defense counsel said was that the scheduling theory verdict form shouldn't be in there. Again, I think Your Honor knows the class certified two theories for meal and [rest] periods: One, the policies failed to authorize and permit; and, two, that it scheduled breaks and meal periods in such a way that made taking those breaks extremely difficult. That absolutely needs to be a part of the verdict forms. 2 Brinker v. Superior Court (2012) 53 Cal.4th 1004, 1040 (“Brinker”) (an “employer may not undermine a formal policy of providing meal breaks by pressuring employees to perform their duties in ways that omit breaks.”) 7. THE CLASS’ MOTION FOR A NEW JURY TRIAL CASE NO.: 37-2011-00102593-CU-OE-CTL Hogue & Belong, APC 170 Laurel Street San Diego, CA 92101 619.238.4720 AN Un BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 This is a viable theory. It always has been since 2014. It needs to find a place in the verdict form. (Ex. “I”, RT, Dec. 5, 2016, pp. 8157:9-8157:23 [emphasis added]; see also Ex. “J”, RT, Dec. 6, 2016, at pp. 8269:24-8270:2 [defense counsel acknowledging that there are two rest break theories at issue in this case].) The Court adopted the SVF drafted by Defendant that completely omitted the rest period scheduling theory.? (Ex. “A,” “Special Verdict Form,” at pp. 4-7; Ex. “I”, RT, Dec. 5, 2016 at pp. 8157:9 - 8158:10 [Class’ objection to the omission of the rest period scheduling theory]; and Ex. “J”, RT Dec. 6, 2016, at pp. 8174:19-21 [objecting to use of Defendant’s proposed verdict form]; pp. 8176:13 - 8177:2 [noting the Class’ “strong objection” to using the Defendant’s proposed verdict form.].) B. The Meal Period Claim. The Class alleged that Defendant’s Meal Period Policy failed to authorize and permit legally compliant meal breaks for non-exempt employees at Defendant’s retail stores. (See Ex. “D”- Fourth Amended Complaint (“FAC”).) Up until August 1, 2012, Defendant’s Meal Period Policy stated: e¢ All non-exempt employees who work more than 5 hours at any time during a work shift must take at least a 30-minute meal period. e All non-exempt employees who work more than 10 hours at any time during a work shift must take at least a 30-minute meal period. (Trial Exs. 186-188, 1010, 1045, 1046) [emphasis added].) 3 The SVF only asked one question regarding rest periods and it was regarding the rest period policy theory of liability: whether, during the Class Period, Defendant “had uniform company-wide rest period policies that failed to authorize and permit the subclass of all California non-exempt Retail employees to take the appropriate number of rest breaks.” (Ex. “A” at pp. 6:8-12.) 3- THE CLASS’ MOTION FOR A NEW JURY TRIAL CASE NO.: 37-2011-00102593-CU-OE-CTL Hogue & Belong, APC 170 Laurel Street San Diego, CA 92101 619.238.4720 AN Un BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (Ex. B, Certification Order, at p. 5.) (Id. at pp. 7-8.) Court discussed jury instructions and the SVF.* (1) a “missed” meal period policy theory, and (2) a “late” meal period policy theory. The Class voiced its concern that after two years of post-certification litigation splitting up a certified The Court certified a meal period class on July 21, 2014: “[a]lll of Defendant’s non-exempt non-managerial retail employees who were not relieved of all duties for a first meal period by the end of the fifth hour of work and/or a second meal period by the end of the tenth hour of work, and who were not compensated with one hour of pay for all such instances between December 16, 2007 to August 1, 2012.” The Court reasoned that: As to the [policy] theory, an employer’s duty to provide lawful meal periods means that the employer must: (1) authorize and permit a first meal period by no later than the end of the employee’s fifth hour of work (and a second meal period by no later than the end of the employee’s tenth hour of work)... | Plaintiffs provided evidence that the meal period policy that was in force from December 16, 2007 through July 31, 2012 did not inform the non-exempt, non-manager employees that they were permitted to take their meal period within the first five hours of every shift[...] Thus, as stated, it can be argued that Defendant’s meal break policy never authorized, permitted, or made its non- exempt employees aware that they had the right to take a meal period within the first five hours prior to August 1, 2012. On October 14, 2016, a jury trial commenced in this case. On December 5, 2016, the Over the Class’ objections, the SVF separated the above-referenced policy theory into 4 There were no CACI verdict forms available on the Class’ meal and rest break claims. 4- THE CLASS’ MOTION FOR A NEW JURY TRIAL CASE NO.: 37-2011-00102593-CU-OE-CTL 1 || theory would prejudice the Class. (Ex. “J”, RT, 12/6, p. 8173:8-13; see also Ex. “I”, RT, 12/5, 2 || pp. 8139:21-8140:8; 8144:22-8145:2 [additional objections to splitting of late and missed meal 3 || periods on the verdict form].) Nevertheless, at Defendant’s urging, the Court adopted the SVF, 4 || splitting the Class’ single certified theory into two. (Ex. “A” at pp. 2-6.) 5 On December 7, 2017, the jury began deliberations. The very first question on the SVF 6 || asked: 7 Did Plaintiffs prove that from December 16, 2008 8 through July 31, 2012 Apple had uniform company-wide 9 meal period policies that failed to authorize and 10 permit the subclass of all California non-exempt, non- 11 managerial Retail employees to take a meal period when 12 they worked more than five hours? 13 || (Ex. “A” at 2:7-10 [emphasis added.].) 14 The jury answered “no.” 15 16 C. The Damages Awarded. 17 On December 7, 2016, closing arguments were completed. The Class put on evidence 18 || that damages for first meal period violations were $13,570,739.60 (i.e., $5,750,614.30 (missed) 19 ||and $7,820,125.29 (late)) and requested those damages in their closing. (Ex. “J”, RT, Dec. 6, 20 ||2016 at p. 8406:13-18 and p. 8408:17-22.) 21 On December 9, 2016, the Jury returned its verdict, and awarded two million dollars 22 |1($2,000,000.00) to the Class on the meal period scheduling theory for first meal periods. (Ex. 23 || “A” atp. 6.) 24 III. LEGAL STANDARD 25 A motion for new trial should be granted for any of the seven reasons enumerated in 26 || California Code of Civil Procedure section 657, including an error in law, insufficient damages, 27 || and insufficiency of the evidence to justify the jury verdict. 28 Hogue & Belong, APC 5 170 Laurel Street “J” BD =a THE CLASS’ MOTION FOR A NEW JURY TRIAL CASE NO.: 37-2011-00102593-CU-OE-CTL Hogue & Belong, APC 170 Laurel Street San Diego, CA 92101 619.238.4720 AN Un BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A. Against the Law (CCP § 657(6)). A judgment based upon findings not determining all the material issues is a decision against law for which a new trial may be granted. (Knight v. Roche (1880), 56 Cal. 15, 17.) A decision is against law when there is a failure to find on a material issue. (Schmeltzer v. Gregory (1968) 266 Cal. App. 2d 420, 422-423; see also Tagney v. Hoy (1968) 260 Cal. App. 2d 372, 375-376; West v. Girard (1884), 4 P. 565, 565 [“Where material issues are not disposed of by the verdict or findings there must be a new trial.”].) A verdict form will be deemed defective if it does not allow the jury to resolve every “controverted issue” in the case. (See Falls v. Superior Court (1987) 194 Cal. App.3d 851, 855 [emphasis added.].) B. Error In Law (CCP § 657(7)). California has recognized that an error occurs where the jury is given a defective verdict form. (Shapiro v. Prudential Property and Casualty Co. (1997) 52 Cal.App.4th 722, 726-28 [upholding trial court’s grant of a new trial where the special verdict form resulted in an ambiguous award].) A party moving for a new trial based on an error in law must also show that the asserted error was prejudicial. (Donlen v. Ford Motor Co. (2013) 217 Cal.App..4th 138, 147; Collins v. Sutter Memorial Hospital (2011) 196 Cal. App.4th 1, 19.) When granting the motion, the Court is not required to provide the reasons why the Court believes the error is prejudicial. (Treber v. Superior Court of San Francisco (1968) 68 Cal.2d 128, 131-132.) Errors arising from the use of special verdict forms are issues of law and are reviewed de novo. (Taylor v. Nabors Drilling USA, LP (2014) 222 Cal. App.4th 1228, 1242; see also J.P. v. Carlsbad Unified School Dist. (2014) 232 Cal. App.4th 323, 339 [stating “[a] special verdict’s correctness is analyzed as a matter of law and therefore subject to de novo review”].) C. Insufficient Damages (CCP § 657(5)). And, regarding inadequacy of damages, “A new trial shall not be granted. ..upon the ground of excessive or inadequate damages, unless after weighing the evidence the court is -6- THE CLASS’ MOTION FOR A NEW JURY TRIAL CASE NO.: 37-2011-00102593-CU-OE-CTL Hogue & Belong, APC 170 Laurel Street San Diego, CA 92101 619.238.4720 AN Un BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict or decision. (CCP § 657.) D. Insufficient Evidence (CCP § 657(6)). The Court has very broad power in granting a new trial for lack of sufficiency of the evidence. In jury trials, each party has essentially two hearings - one before the jury and one before the court as “a thirteenth juror.” (Norden v. Hartman (1952) 111 Cal.App.2d 751, 758.) This prevents injustice when the weight of the evidence is against the verdict. “In weighing and evaluating the evidence, the court is a trier-of-fact and is not bound by factual resolutions made by the jury. The court may grant a new trial even though there may be sufficient evidence to sustain the jury’s verdict on appeal, so long as the court determines the weight of the evidence is against the verdict.” (Candido v. Huitt (1984) 151 Cal.App.3d 918, 923 [emphasis added].) It is the trial judge’s responsibility to determine the weight of the evidence. “A new trial shall not be granted upon the ground of insufficiency of the evidence to justify the verdict or decision....unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict of decision.” (CCP § 657 [emphasis added].) The court must exercise its “independent judgment” as to whether the verdict is supported by the evidence. (Green v. Soule (1904) 145 Cal. 96, 103.) IV. ARGUMENT A. Not Permitting the Jury to Make Any Finding on the Class’ Certified Rest Period Scheduling Theory is “Against the Law.” Unlike a general verdict (which merely implies findings on all issues in favor of the plaintiff or defendant), a special verdict presents to the jury each ultimate fact in the case. (Myers Building Industries, Ltd. v. Interface Technology, Inc. (1993) 13 Cal.App.4th 949, 959.) A special verdict form requires the jury to decide all “ultimate facts” such that “nothing shall remain to the court but to draw from them conclusions of law.” (Fuller-Austin Insulation Co. v. Highlands Ins. Co. (2006) 135 Cal.App.4th 958, 1006.) The requirement that the jury must JT THE CLASS’ MOTION FOR A NEW JURY TRIAL CASE NO.: 37-2011-00102593-CU-OE-CTL Hogue & Belong, APC 170 Laurel Street San Diego, CA 92101 619.238.4720 AN Un BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 resolve every controverted issue is one of the recognized pitfalls of using special verdict forms. (Trujillo v. North County Transit Dist. (1998) 63 Cal. App.4th 280, 285 [emphasis added].) Thus, a special verdict is considered “fatally defective” if it does not allow the jury to resolve every controverted issue in the case. (Taylor, supra, 222 Cal. App.4th at p. 1240.) In this case, the analysis is simple. A rest break scheduling theory was certified, there was evidence put on at trial regarding this issue’, and that issue (i.e., the scheduling theory) failed to make it into the SVF. There was a failure to make any finding on the rest break scheduling because it was impossible for the jury to do so due to the fact that it was completely omitted from the SVF. The jury rendered a favorable verdict regarding the scheduling theory for the meal break claim because, unlike the rest period scheduling theory, the meal period scheduling theory was accounted for in the SVF. (See Ex. “A” at Question 8.) Given this, it is highly probable that the jury would have likewise found in the Class’ favor on their rest break scheduling theory. Due to this failure, the Class will never know the jury’s decision on the issue and the Class will be deprived of an important fundamental right - the right to a jury trial on a viable cause of action. Hence, a new trial on this theory must be granted. B. A New Trial Should Be Granted Because Unnecessary and Prejudicial Questions Were Asked That Were Inconsistent With The Class’ Meal Period Policy Theory. The court is fully empowered to order a new trial based on defects evident in a special verdict form. (See e.g. Neal v. Montgomery Elevator Co. (1992) 7 Cal.App.4th 1194, 1197-1198 5 See, e.g.: Trial Ex. “264”; Trial Ex. “617”; Ex. “E”, RT, Oct. 31, 2016, pp. 2129:17- 2130:15 and 2139:14-2140:12 (testimony of class representative Hawkins regarding one break for seven hours worked); Ex. “F,” RT, Nov. 2, 2016, p. 2565:15-24 (testimony of class representative of Ryan Goldman regarding being scheduled one rest break for seven and half hours worked); Ex. “G”, RT, Nov. 9, 2016, pp. 3710:23-3711:9, and 3712:10-20 (testimony of Defendant’s person most qualified, Stephanie Fehr, that according Apple’s Scheduling Guideline, non-exempt retail employees would only receive one rest break for shifts greater than six but less than eight); Ex. “H”, RT, 11/16/16, pp. 5678:9-5679:25 (testimony of Defendant’s market leader, Julie Reisinger discussing Exhibit 172 - the Scheduling Guideline - and confirming that non-exempt employees would only receive one rest break pursuant to the chart in| the Scheduling Guideline.) _8- THE CLASS’ MOTION FOR A NEW JURY TRIAL CASE NO.: 37-2011-00102593-CU-OE-CTL Hogue & Belong, APC 170 Laurel Street San Diego, CA 92101 619.238.4720 AN Un BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [trial court had jurisdiction to order new trial on the statutory ground of “error in law” concerning the use of a special verdict form that included the erroneous standard for the applicable burden of proof.].) A motion for new trial may be based on either an erroneous or misleading question on a special verdict form. (Bell v. Bayerische Motoren Werke Aktiengesellschaft (2010) 181 Cal. App.4th 1108, 1123-1124; see also All-West Design, Inc. v. Boozer (1986) 183 Cal.App.3d 1212, 1220 [reversing the trial court denial of a new trial finding on the basis that the verdict form was ambiguous]; See Shaw v. Hughes Aircraft Co. (2000) 83 Cal.App.4th 1336, 1344 [granting new trial on the basis of the inclusion of an unnecessary questions on a special verdict form that led to an inconsistent verdict]; United States v. Yagi, (N.D. Cal. Oct. 25, 2013) No. CR-12-0483 EMC, 2013 U.S. Dist. LEXIS 153704, at *2 [rejecting proposed special verdict form that was “unnecessary” and “potentially confusing™].) The California Supreme Court decision Brinker v. Superior Court (2012) 53 Cal.4th 1004, addressed, inter alia, the required timing of these meal periods. The Court held that, absent waiver, section 512 required a first meal period no later than the end of the fifth hour of work and a second meal period no later than the end of the tenth hour of work. (Id. at 1041 [emphasis added].); Bradley v. Networkers International, LLC (2012) 211 Cal.App.4th 1129, 1150 [“when an employer has not authorized and not provided legally required meal and/or rest breaks, the employer has violated the law....”]; Lubin v. The Wackenhut Corp. (2016) 5 Cal.App.5th 926, 957 citing Bufil v. Dollar Financial Group (2008) 162 Cal.App.4th 1193, 1199) [The “onus is on employer to clearly communicate authorization and permission to employees.”].) This language makes clear that the duty is on the employer to promulgate a policy that complies with Brinker and section 512. And, regarding this affirmative duty to authorize meal periods, neither the Labor Code nor the Wage Order make any distinction regarding missed versus late meal periods. (Cal. Lab. Cod. §512 and §226.7; IWC Wage Order 5-2001.) Accordingly, since the inception of the instant action, the Class was litigating on the basis that Defendant’s Meal Period Policy did not authorize and permit a meal period by the end of the fifth hour and/or a second meal period by the end of the tenth hour. Consistent with this, the 9. THE CLASS’ MOTION FOR A NEW JURY TRIAL CASE NO.: 37-2011-00102593-CU-OE-CTL 1 || Court certified a class of non-exempt non-managerial retail employees who did not receive a 2 || meal period “...by the end of the fifth hour of work and/or a second meal period by the end of 3 || the tenth hour of work.” (Ex. “B” at p. 5.) Yet, perplexingly, the SVF bifurcated the Class’ 4 || single Meal Period Policy theory in two (missed and late), and then added prejudicial language 5 || that actually mirrored Defendant’s Meal Period Policy, giving the jury no chance of finding in 6 || the Class’ favor. Specifically, the very first question in the SVF asked: 7 8 Did Plaintiffs prove that from December 16, 2008 9 through July 31, 2012 Apple had uniform company-wide 10 meal period policies that failed to authorize and 11 permit the subclass of all California non-exempt, non- 12 managerial Retail employees to take a meal period when 15 they worked more than five hours?® 14 || (Ex. “A” at 2:7-10 [emphasis added].) 15 16 The first SVF question mirrored Defendant’s Meal Period Policy which stated: 17 e All non-exempt employees who work more than 5 hours at any time during a work shift must take at 18 least a 30-minute meal period. 19 e All non-exempt employees who work more than 10 hours at any time during a work shift must take at 20 least a 30-minute meal period. 21 || (Trial Exs. 186-188, 1010, 1045, 1046 [emphasis added].) 22 The above comparison highlights the inescapable truth that there was no way that a jury 23 || could look at the first question of the SVF, and answer “yes,” after comparing it to Defendants 24 || policy. The Class never had separate missed versus late meal period policy theories. By 25 26 || The SVF had the exact same segregated question for the second meal period: Did 27 Plaintiffs prove that from December 16, 2008 through July 31, 2012 Apple had uniform company-wide meal period policies that failed to authorize and permit the subclass of all 28 || California non-exempt, non-managerial Retail employees to take a second meal period when they worked more than ten hours? Hogue & Belong, APC 10 170 Laurel Street ~ ~ BD =a THE CLASS’ MOTION FOR A NEW JURY TRIAL CASE NO.: 37-2011-00102593-CU-OE-CTL Hogue & Belong, APC 170 Laurel Street San Diego, CA 92101 619.238.4720 AN Un BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 inserting the above-referenced stand-alone question and labeling it “missed” was wrong, misleading, not to mention prejudicial to the Class because the jury essentially had no other choice but to check the box “no.” Hence, from the very first question, the Class was doomed to fail because the Court adopted Defendant’s SVF which deliberately separated the concepts of “missed” and “late” meal periods, and caused them each to stand alone - rather than standing as a single internally consistent certified theory. In other words, by asking solely whether the policy authorized and permitted a meal period when employees worked more than five hours, the question completely conceals and distorts the certified theory: that because the policy did not authorize employees to receive their meal period by the end of the fifth hour, the policy resulted in employees often not receiving a meal period at all. Simply put, this defect made the special verdict form both erroneous and misleading, and therefore, prejudicial. As a result, the Court should grant the Class’s motion for a new trial. C. The Damages Awarded by The Jury Were Insufficient. Insufficient damages awarded is a basis for a new trial. (See CCP 657(5).) As referenced above, the jury awarded $2,000,000 when the Class presented evidence of and requested $13,570,739.60 for first meal period premium wages. (i.e., $5,750,614.30 (missed) and $7,820,125.29 (late); Ex. “J”, RT, Dec. 6, 2016 at 8406:13-18 and 8408:17-22.) Accordingly, the Class should be granted a new trial. D. There was Insufficient Evidence for the Jury’s Finding that Defendant’s Rest Period Policy Was Lawful; And It Was Also “Against Law” (CCP § 657(6) and (7). “A new trial shall not be granted upon the ground of insufficiency of the evidence to justify the verdict or decision....unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict of decision.” (CCP § 657 [emphasis added].) The court must -11- THE CLASS’ MOTION FOR A NEW JURY TRIAL CASE NO.: 37-2011-00102593-CU-OE-CTL Hogue & Belong, APC 170 Laurel Street San Diego, CA 92101 619.238.4720 AN Un BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 exercise its “independent judgment” as to whether the verdict is supported by the evidence. (Green v. Soule (1904) 145 Cal. 96, 103.) A new trial may also be granted where the verdict is “against law.” (CCP § 657(6).) Under this standard, unlike an argument based on the sufficiency of the evidence to support the verdict, there is no weighing of credibility. Instead, the “against law” standard applies only where the evidence is not in conflict on any material point and even so, is insufficient as a matter of law to support the verdict. (McCown v. Spencer (1970) 8 Cal.App.3d 216, 229.) Where the jury returns a verdict contrary to the jury instructions, a motion for new trial on the grounds that the verdict is “against the law” is warranted. (Manufacturers’ Finance Corp. v. Pacific Wholesale Radio (1933) 130 Cal. App. 3d 239, 243 [emphasis added].) A lawful rest break policy must, for example, authorize a second rest period for employees working shifts longer than 6 hours and less than 8 hours. (Brinker, supra, 53 Cal.4th at 1033.) In Brinker, the California Supreme Court analyzed the employer’s rest period policy which ostensibly provided: “employees receive one 10-minute rest break per four hours worked.” (Id., at 1033). Upon analyzing this policy, the California Supreme Court held: “[T[he Court of Appeal concluded that because rest breaks can be waived-as all parties agree- ‘any showing on a class basis that plaintiffs or other members of the proposed class missed rest breaks or took shortened rest breaks would not necessarily establish, without further individualized proof, that [the employer] violated’ the Labor Code and Wage Order No. 5. This was error. An employer is required to authorize and permit the amount of rest break time called for under the wage order for its industry. If it does not-if, for example, it adopts a uniform policy authorizing and permitting only one rest break for employees working a seven-hour shift when two are required-it has violated the wage order and is liable.” Here, as stated, Question 13 pertained to the Class rest period policy theory. It read: -12- THE CLASS’ MOTION FOR A NEW JURY TRIAL CASE NO.: 37-2011-00102593-CU-OE-CTL Hogue & Belong, APC 170 Laurel Street San Diego, CA 92101 619.238.4720 ~N O N wn BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Did Plaintiffs prove that from December 16, 2008 through July 31, 2012 Apple had uniform company-wide rest break policies that failed to authorize and permit the subclass of all California non-exempt Retail employees to take the appropriate number of rest breaks? (Ex. “A” at 6:9-11.) Special Instruction No. 8 clarified what the term “appropriate number of rest breaks” meant. It read (in part): The Class claims that Apple Inc. failed to authorize and permit retail, non-exempt, employees (both managerial and non-managerial) to take the appropriate number of rest breaks during their employment. To prevail on this claim, the Class must prove the following: (2) Apple did not authorize and permit the Class to take at least two 10-minute rest breaks when they worked more than 6 and less than 8 hours... (Ex. “C” at Special Instruction No. 8.) There was absolutely no evidence supporting the fact that Defendant’s Rest Period Policy authorized the legally required number of rest periods. To the contrary, there is plenty of evidence that it was unlawful. Defendant’s Rest Period Policy that applied to all of the class members did not authorize a second rest break for shifts between, for instance, 6 and 8 hours. (Trial Exs. 186-188, 1010, 1045, 1046 [Defendant’s Rest Period Policy]; Trial Exs. 172-175; Ex. “G”, RT, 11/16/16, pp. 5678:9-5679:25 (testimony by market leader Julie Reisinger); Ex. “G”, RT, Nov. 9, 2016, pp. 3710:23-3711:9, and 3712:10-20 (testimony of PMQ, Stephanie Fehr.) -13- THE CLASS’ MOTION FOR A NEW JURY TRIAL CASE NO.: 37-2011-00102593-CU-OE-CTL 1 Had the jury followed the jury instructions and applied them to the facts, it would have 2 || found that Defendant’s company-wide rest break policy did not provide the “California non- 3 || exempt Retail employees to take the appropriate number of rest breaks.” 4 5 ; V. CONCLUSION For the foregoing reasons, the Class respectfully requests that the Court grant the Class’ ’ Motion for New Trial. 8 9 Dated: October 2, 2017 HOGUE & BELONG 10 By: _ s/ Jeffrey Hogue 11 JEFFREY L. HOGUE TYLER J. BELONG 12 ERIK A. DOS SANTOS 3 Attorneys for the Class 14 15 16 17 18 19 20 21 22 23 24 25 26 2 28 0 Laure Set. =14- SAmCOiE ge. Cb 9210] THE CLASS’ MOTION FOR A NEW JURY TRIAL 619.238.4720 CASE NO.: 37-2011-00102593-CU-OE-CTL