GERARD v. ORANGE COAST MEMORIAL MEDICAL CENTER

Appellants’ Reply to Answer to Petition for Review

Cal.May 26, 2017

S241655 Jorge Navarrete Clerk IN THE SUPREME COURT OF CALIFORNIA Deputy JAZMINA GERARD, KRISTIANE MCELROY, AND JEFFREY CARL, Plaintiffs-Appellants Vs. ORANGE COAST MEMORIAL MEDICAL CENTER, Defendant-Respondent. AFTER DECISION BY THE COURT OF APPEAL, FOURTH APPELLATE DISTRICT, DIVISION THREE, CASE NO. G048039 FROM THE SUPERIOR COURT OF ORANGE COUNTY THE HONORABLE NANCY WIEBEN STOCK, PRESIDING CASE NO. 30-2008-00096591, DEPT. CX 105, (657) 622-5305 REPLY TO ANSWER TO PETITION FOR REVIEW LAW OFFICES OF MARK CAPSTONE LAW APC YABLONOVICH *Glenn A. Danas (SBN 270317) Mark Yablonovich (SBN 186670) Robert K. Friedl (SBN 134947) 1875 Century Park East, Ste. 700 1875 Century Park East, Ste. 1000 Los Angeles, CA 90067 Los Angeles, CA 90067 Telephone: (310) 286-0246 Telephone: (310) 556-4811 Facsimile: (810) 407-5391 Facsimile: (310) 943-0396 Mark@Yablonovichlaw.com Glenn.Danas@capstonelawyers.com Robert.Friedl@capstonelawyers.com Attorneys for Plaintiffs-Appellants JAZMINA GERARD, KRISTIANE MCELROY AND JEFFREY CARL 5241655 IN THE SUPREME COURT OF CALIFORNIA JAZMINA GERARD, KRISTIANE MCELROY, AND JEFFREY CARL, Plaintiffs-Appellants VS. ORANGE COAST MEMORIAL MEDICAL CENTER, Defendant-Respondent. AFTER DECISION BY THE COURT OF APPEAL, FOURTH APPELLATE DISTRICT, DIVISION THREE, CASE NO. G048039 FROM THE SUPERIOR COURT OF ORANGE COUNTY THE HONORABLE NANCY WIEBEN STOCK, PRESIDING CASE NO. 30-2008-00096591, DEPT. CX 105, (657) 622-5305 REPLY TO ANSWER TO PETITION FOR REVIEW LAW OFFICES OF MARK CAPSTONE LAW APC YABLONOVICH *Glenn A. Danas (SBN 270317) Mark Yablonovich (SBN 186670) Robert K. Friedl (SBN 134947) 1875 Century Park East, Ste. 700 1875 Century Park East, Ste. 1000 Los Angeles, CA 90067 Los Angeles, CA 90067 Telephone: (810) 286-0246 Telephone: (310) 556-4811 Facsimile: (310) 407-5391 Facsimile: (310) 943-0396 Mark@Yablonovichlaw.com Glenn.Danas@capstonelawyers.com Robert.Friedl@capstonelawyers.com Attorneys for Plaintiffs-Appellants JAZMINA GERARD, KRISTIANE MCELROY AND JEFFREY CARL TABLE OF CONTENTS TABLE OF AUTHORIBS 0.0... .ececcecccccececccceceeeeeenseeeeseeeecseeceensaaeeeeecesteeseseenaas 3 I. INTRODUCTION00ccceeeeeneeeeeeeeeeceessseeeeseeeeeeensesecesssessesseees 4 Tl. ARGUMENT ooo...cececcc ceeecececeeseeseseecesaeeceseeeenesseeeeseessesssseeenas 6 III. CONCLUSION...ceceeccceeeeeeeeeeaeeeeaeeceeeeeesneaeeeeeesseesseeeensas 8 CERTIFICATE OF WORD COUNT0000. ccccccececececeeeeeceeeeeeeetetsseeenseeeeseess9 TABLE OF AUTHORIES STATE CASES Bearden v. U.S. Borax, Inc. (2006) 138 Cal.App.4th 429 ooo... ccccccccccecceeenssteeeeeeeeeeeseeees 7 Gerard v. Orange Coast Memorial Medical Center (2015) 234 Cal.App.4th 285 oo... cccceseseececeeccceeeeseeseeeseeenenees 4 Gerard v. Orange Coast Memorial Medical Center (2017) 9 CalApp.5th 1204 oo... cceccesescccesseeeeeeeeeeeeeeeees 4, 5, 6, 8 Small v. Superior Court (2007) 148 Cal.App.4th 222.000... 7 STATE STATUTES Cal. Lab. Code § 226.7 oo. ..ccccccccccccccccccccceccccccecenssteseeeeseeeessseaseseeeseeeees 8 Cal. Lab. Code § 512 .o...ccccccccccccccceeccceeeseessseeseseteeseceeeseeeeeseceeeeees 7 Cal. Lab. Code § 516 v.cccccccccsccccesseceseessescessescsesvsvetereestuseavssereaeeees5, 6 Industrial Wage Order 5 § 11(D).......ccocecceeeeeneeeeeeespassim SECONDARYAUTHORITIES Assembly Bill No. 60 (AB 60) .....c.cccccssscsssessssesseeseeetsestetsssseseeeeeeneoes 7 Senate Bell No. 88 (SB 88) .u......oce cece ceecceccseceeccceeeceeseeeeeveseees 5, 6, 7 Senate Bill No. 327 (SB 327) wo... eecccccecesesccccceeeeeeeeceeeeeeeeaespassim I. INTRODUCTION Gerard v. Orange Coast Memorial Medical Center (2015) 234 Cal.App.4th 285, 290 (“Gerard I’) held that Industrial Welfare Commission (“IWC”) Wage Order5 section 11(D) (“section 11(D)”’) was invalid to the extent it allowed healthcare workers to waive second meal periods on shifts longer than 12 hours. The decision, however, raised howlsof protest from Orange Coast Memorial Medical Center (“COCMMC’”) and other hospitals that had allegedly been violating the law for years by using illegal meal period waivers. Unfortunately for healthcare workers, OCMMCand other hospitals were able to convince the Legislature that these illegal meal period waivers should be retroactively validated. The Legislature was persuadedto declare that the hospitals’ takingof wages from October 1, 2000 until the present is legal even though the Court of Appeal had already decided that it was not. The resulting legislation is Senate Bill No. 327 (“SB 327’). After granting a petition for review in Gerard I, this Court, on August 17, 2016, transferred the case back to the Court of Appeal with the following instructions: The above-captioned matter is transferred to the Court of Appeal, Fourth Appellate District, Division Three, with directions to vacate its decision and to reconsider the cause in light of the enactment of Statutes 2015, chapter 505 (Sen. Bill No. 327 (2015-2016 Reg. Sess.)) In response to this mandate, the Court of Appeal reversed itself in Gerard v. Orange Coast Memorial Medical Center (2017) 9 Cal.App.5th 1204 (Gerard I). Plaintiffs Jazmina Gerard, Kristiane McElroy and Jeffrey Carl (“Petitioners”) have petitioned this Court for review because the Legislature cannot dictate to the courts what the law wasthe past. Nor can it wipe out healthcare workers’ vested rights to millionsof dollars of premium pay without due processoflaw. OCMMC,in its Answerto Petition for Review, seeks to play downthese significant constitutional concerns. At the core of its analysis is the contention that although the Court of Appeal was instructed to reconsider this matterin light of SB 327,its decision in Gerard IT — holding that the meal period waiver in section 11(D) was valid — “did not depend on SB 327.” (Answer Pet p. 5.) Instead, OCMMCargues that the court’s newfound “subtle but critical distinction in administrative law” between when a regulation is “adopted” and whenit is “effective” was the basis for the court’s holding. (Ud). As pointed out by Petitioners, the Court of Appeal’s determination that the IWC did not exceed its authority in adopting section 11(D) did lay the groundwork for court’s surprising and erroneous conclusions that SB 327 “clarified,” rather than “changed” the law. (Pet. Pp.9-10.)' From the premise that the Court of Appeal correctly determined that section 11(D) was always valid, OCMMCeasily concludes that there are no issues for review here — that the Legislature did not “dictate” the law to the courts in enacting SB ' The court essentially held that because Wage Order 5 was “adopted” before Senate Bell No. 88 (SB 88”) “took away”the TWC’s authority to “adopt” meal period waivers inconsistent with section 516(a), SB 88 had no effect on section 11(D). (Gerard IT, 9 Cal.App.5th at 1211.) 327 and that no unconstitutional taking of vested wages occurred. OCMMC’s argumentdoes not circumvent the important issues of the separation of powers andthe retroactive taking of wages that will go unaddressedif this Petition is not granted, As pointed out by Petitioners, the “valid when adopted” argument overlooks the legislative history of SB 88 which ttself was a clarification of the [WC’s lack of authority to adopt wage orders inconsistent with section 516. (Pet. pp. 13-14.) That legislative history cannot be swept away or ignored, permitting the current Legislature to dictate that section 11(D) was valid in 2000 and thereby deprive healthcare workers of their vested rights to premium wages without due process. Il. ARGUMENT The Court of Appeal’s “subtle but critical distinction” seems to have eluded the Legislature. Labor Code section 516, as amended by SB 327,states in pertinentpart: (b) Notwithstanding subdivision (a), or any other law, including Section 512, the health care employee meal period waiver provisions in Section 11(D) of Industrial Welfare Commission Wage Orders 4 and 5 were valid and enforceable on and after October 1, 2000, and continue to be valid and enforceable. This subdivision is declarative of, and clarifies, existing law. (Lab. Code § 516, effective October 5, 2015.) Wage Order No. 5 was adopted on June 30, 2000 and became effective on October 1, 2000. (Gerard II, 9 Cal.App.5th at 1209.) Thus, in SB 327 the Legislature attemptsto legislate that section 11(D) was valid on October 1, 2000, when it became “effective.” SB 327 does not attempt to legislate that section 11(D) was valid when it was “adopted.” In contrast, SB 88 concerns the law on and after January 1, 2000. The Senate third reading analysis for Senate Bill No. 88 states: This bill clarifies two provisions of the Labor Code enacted in Chapter 134. Labor Code Section 512 codifies the duty of an employerto provide employees with meal periods. Labor Code Section 516 establishes the authority of IWC to adopt or amend working condition orders with respect to break periods, meal periods, and days of rest. This bill provides that IWC’s authority to adopt or amend orders under Section 516 must be consistent with the specific provisions of Labor Code Section 512. (Bearden v. U.S. Borax, Inc. (2006) 138 Cal.App.4th 429, 438 [emphasis added,italics added by the Bearden court].) Section 512 was enacted as part of Assembly Bill 60 “AB 60”). AB 60 becameeffective on January 1, 2000. (Small v. Superior Court (2007) 148 Cal.App.4th 222, 226.) Thus, AB 60 clarifies that the IWC’s authority to adopt or amend working conditions wasrestricted on and after January 1, 2000 —a date before both the date Wage Order No. 5 was adopted (June 30, 2000) and the date it became effective (October 1, 2000). _ Because the IWCdid not have the authority to adopt wage orders on and after January 2000 that conflicted with section 512, the Court of Appeal’s fine distinction between the “adoption” and “effective date” of section 11(D) is irrelevant. Wage Order 5 subsection 11(D) was not valid when adopted and SB 327 does not state otherwise. SB 327 therefore changed the law, however viewed. Because SB 327 changed the law, the important questions posed by Petitioners’ Petition for Review remain: 1. Can the Legislature dictate to the Judiciary what the laws regarding meal period requirements were in 2000 forcing courts to conclude that healthcare workers’ vested rights to millions of dollars of premium pay under Labor Codesection 226.7 were never owed? 2. Can the Legislature retroactively deprive healthcare workersof their vested rights to millions of dollars of premium pay under Labor Codesection 226.7 without due process of law? Respectfully, the answer these questionsis “no” and review of Gerard IT should be granted to analyze and resolve these critically important issues. II. CONCLUSION For the foregoing reasons, Appellants respectfully request that the Court grant plenary review of the Court of Appeal’s decision. Dated: May 25, 2017 Respectfully submitted, Capstone Law APC ene By: Lo , Glenn A. Danas Robert K. Friedl Attorneys for Plaintiffs- Appellants JAZMINA GERARD, KRISTIANE MCELROY AND JEFFREY CARL CERTIFICATE OF WORD COUNT Counsel of record hereby certifies that, pursuant to California Rules of Court, rule 8.504(d)(1), the enclosed Appellants’ Petition For Review was produced using 18-point Century Schoolbook type font and contains 1,190 words, in accordance with the 8,400-word maximum. In arriving at this number, counsel has relied on the word count function of Microsoft® Office Word 2010, which was used to prepare the document. Dated: May 25, 2017 Respectfully submitted, Capstone Law APC By: “7fa Glenn A. Danas Robert K. Friedl Attorneysfor Plaintiffs- Appellants JAZMINA GERARD, KRISTIANE MCELROY AND JEFFREY CARL 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am employedin the State of California, County of Los Angeles. I am over the age of 18 and not a party to the within suit; my business address is 1875 Century Park East, Suite 1000, Los Angeles, California 90067. On May25, 2017, I served the document describedas: REPLY TO ANSWER TO PETITION FOR REVIEW on the interested parties in this action by sending on the interested parties in this action by sending [ ] the original [or] [“] a true copy thereofto interested parties as follows [or] as stated on the attached service list: SEE ATTACHED SERVICELIST. {L_]] BY MAIL (ENCLOSED IN A SEALED ENVELOPE): | deposited the envelope(s) for mailing in the ordinary course of business at Los Angeles, California. I am “readily familiar” with this firm’s practice of collection and processing correspondence for mailing. Under that practice, sealed envelopes are deposited with the U.S. Postal Service that same day in the ordinary course of business with postage thereon fully prepaid at Los Angeles, California. [L.]] BY PERSONAL SERVICE:I personally delivered the document, enclosed in a sealed envelope, by handto the offices of the addressee(s) named herein. ([X]] BY OVERNIGHT DELIVERY:I am “readily familiar” with this firm’s practice of collection and processing correspondence for overnight delivery. Underthat practice, overnight packages are enclosed in a sealed envelope with a packingslip attached thereto fully prepaid. The packages are picked up by the carrier at our offices or delivered by our office to a designated collection site. [L_]] ELECTRONIC SERVICE:I caused the above-referenced document(s) to be transmitted electronically via TrueFiling to the email addresses of the individualslisted. I declare under penalty of perjury underthe laws of the State of California that the foregoing is true and correct. Executed this May 25, 2017, at Los Angeles, California. Matthew Krout M ata Type or Print Name Signature PROOF OF SERVICE 10 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SERVICE LIST Richard J. Simmons SHEPPARD, MULLIN, RICHTER & HAMPTON LLP 333 South HopeStreet, 48" Floor Los Angeles, CA 90071 Attorneys for Defendant/Respondent Orange Coast Memorial Medical Center Robert Stumpf,Jr. SHEPPARD, MULLIN, RICHTER & HAMPTON LLP Four Embarcadero Center, 17" Floor San Francisco, CA 94111 Attorneys for Defendant/Respondent Orange Coast Memorial Medical Center Attorney General - Santa Ana Office Consumer Law Section 401 Civic Center Drive West Santa Ana, CA 92701 Office of the Attorney General Santa AnaDistrict Attorney Office of the District Attorney Law and Motion Unit 401 Civic Center Drive West Santa Ana, CA 92701 Office of the District Attorney Hon. Nancy Wieben Stock Department CXC-105 Orange County Superior Court Complex Civil Litigation 751 W. Santa Ana Blvd. Santa Ana, CA 92701 Superior Court Fourth District Court of Appeal Division Three Office of the Clerk 601 W. Santa Ana Blvd. Santa Ana, CA 92701 Appellate Court Kiran Aftab SeldonSeyfarth Shaw LLP2029 Century Park East, Suite 3500Los Angeles, CA 90067 California Hospital Association : Amicuscuriae PROOFOF SERVICE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Fred J. Hiestand Attorney at Law 3418 Third Avenue, Suite 1 Sacramento, CA 95817 Civil Justice Association of California : Amicus curiae Scott Alan Kronland Altshuler Berzon, LLP 177 Post Street, Suite 300 San Francisco, CA 94108 United Nurses Associations of California/Union of Health Care Professionals : Amicus curiae Service Employees International Union Local 121RN : Amicus curiae California Chamber of Commerce : Amicus curiae PROOFOF SERVICE