Notice of Appeal: JOHN DOE VS. GOOGLE, INC. ET AL

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                                APP-003

[ATTORNEY OR PARTY WITHOUT ATTORNEY STATE BAR NO.

name: Chris Baker (SBN 181557) / Deborah Schwartz (SBN 208934)
FiRM NAME: Baker Curtis & Schwartz, P.C.

STREET ADDRESS: 1 California Street, Suite 1250

cry: San Francisco state; CA ZIPCODE, 94111 ELECTRONICALLY
TELEPHONE NO: 415-433-1064 FAX NO: 415-366-2525

E-MAIL ADORESS: Chaker@bakerlp.com / dschwartz@bakerlp.com F ILE D i
ATTORNEY FOR (name). Appellants/Plaintitfs Doe, Gudeman and Corea S Couney br senpiancisoote
SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN FRANCISCO

STREET ADDRESS: 400 McAllister Street 03/29/2019

MAILING ADDRESS: BY: MELISSA DONG
[city ano zip cove: San Francisco, CA 94102 Deputy Clerk

BRANCHNAME: Civic Center Courthouse

PLAINTIFF/PETITIONER: John Doe, David Gudeman and Paola Correa
DEFENDANT/RESPONDENT: Google, Inc., Alphabet, Inc., and Adecco USA, Inc.

APPELLANT'S NOTICE DESIGNATING RECORD ON APPEAL SUPERIOR oeees CASE NUMBER,
(UNLIMITED CIVIL CASE) CGC-16-556034
RE: Appeal filed on (date): March 19, 2019 COURT OF APPEAL CASE NUMBER (7 inowa)

Notice: Please read form APP-001 before completing this form. This form must be filed in the superior court,
not in the Court of Appeal.

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Page 10f4
Se touea APPELLANT'S NOTICE DESIGNATING RECORD ON APPEAL... al Rules of Cout nies 3.50,

APP-003 (Rev. January 1, 2018] (Unlimited Civil Case) www courts.ca govAPP-003

CASE NAME: Doe et al. v. Google et al ‘SUPERIOR COURT CASE NUMBER:

CGC-16-556034

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(i) [71 allofthe designated proceedings
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[ Document Title and Description IL Date of Filing ]
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(7) Register of actions or docket (if any)
Bete nee ive tae) APPELLANT'S NOTICE DESIGNATING RECORD ON APPEAL Page 2or4

(Unlimited Civil Case)APP-003

CASE NAME: Doe et al. v. Google et al. ‘SUPERIOR COURT CASE NUMBER:
CGC-16-556034

4, NOTICE DESIGNATING CLERK'S TRANSCRIPT

b. Additional documents. (/f you want any documents from the superior court proceeding in addition to the items listed in 4a.
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[J | request that the clerk include the following documents from the superior court proceeding in the transcript. (You must
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[ Document Title and Description l[ Date of Filing |

(8)
(9)
(10)
(11)

(12)

[] Additional documents are listed on Attachment 4b beginning with number (13)

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My copy of the reporter's transcript in electronic format and a second copy in paper format.

(3)

(Code Civ. Proc., § 271.)

APP.003 [Rev, January 1, 2018) APPELLANT'S NOTICE DESIGNATING RECORD ON APPEAL tage sot)
(Unlimited Civil Case)APP-003

CASE NAME: Doe et al. v. Google et al. SUPERIOR COURT CASE NUMBER:
CGC-16-556034

5. b. Proceedings
| request that the following proceedings in the superior court be included in the reporter's transcript. (You must identify each
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previously prepared.)

[Date [Department [Full/Partial Day] Description [Reporter's Name | Prev. prepared? |
) See Attachment 5(b) (Yes [] No
(2) O Yes [J No
(3) O Yes (J No
(4) O Yes [] No

[LE] Additional proceedings are listed on Attachment 5b beginning with number (5).

6. NOTICE DESIGNATING PROCEEDINGS TO BE INCLUDED IN SETTLED STATEMENT
(You must complete this section if you checked item 2b(3) above indicating you elect to use a settled statement, | request that
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reporter who recorded the proceedings [if known], and whether a certified transcript of the designated proceeding was

previously prepared.)
[Date [Department] Fuil/Partial Day| Description [Reporter's Name [| Prev. prepared? |
(1) 0 Yes [] No
2) C Yes [] No
(3) 0 Yes — No
(4) 0 Yes [No

[_] Additional proceedings are listed on Attachment 6 beginning with number (5).
7. a. The proceedings designated in 5b or6 [[_] include [KX] donotinclude all of the testimony in the superior court.

If the designated proceedings DO NOT include all of the testimony, state the points that you intend to raise on appeal (rule
8.130(a)(2) provides that your appeal will be limited to these points unless, on motion, the reviewing court permits otherwise).

Points are set forth: [[_] Below On Attachment 7.

fo”

nih

Ve

Date: March/. \ 2019

Chris Baker pa fo
TYPE OR PRINT RANE) SSRATORE EF PPEAT GRATORNED
/APP-008 FRev. January 1, 2046] APPELLANT'S NOTICE DESIGNATING RECORD ON APPEAL Page aot

(Unlimited Civil Case)Section 5.b. (Proceedings)

ATTACHMENT 5(b)
TO APPELLANTS’ NOTICE DESIGNATING RECORD ON APPEAL

Motion

Date Department | Full/Partial Description Reporter’s | Previously
Day Name Prepared?

6.23.2017 304 Partial Demurrer Alesia Yes
Hearing/Motion | Collins
to Stay

8.02.2017 304 Partial Case Alesia Yes
Management Collins
Conference

9.13.2017 304 Partial Demurrer Mary Yes
Hearing Bardellini

11.07.2017 304 Partial Demurrer Sheila Yes
Hearing Pham

1.04.2018 304 Partial Hearing on Sandra Yes
Coordination CarranzaATTACHMENT 7
TO APPELLANTS’ NOTICE DESIGNATING RECORD ON APPEAL

Appellants may raise the following issues and others with respect to the present appeal:

The superior court's rulings concerning its subject matter jurisdiction and its sustaining of
defendants' demurrers with and without leave to amend;

The superior court's rulings on appropriate limitations periods;

The superior court's discovery rulings (except as they relate to the catalyst fees/costs issue);
The superior court's decisions concerning coordination.

Appellants reserve the right to raise additional points on appeal.IN THE COURT OF APPEAL
STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT

Case No. [Pending]

JOHN DOE, DAVID GUDEMAN, AND PAOLA CORREA
Plaintiffs-Appellants,

Vv.

GOOGLE, INC., ALPHABET, INC., ADECCO USA, INC.
Defendants-Respondents

On Appeal from the Superior Court of California, County of San Francisco, the
Honorable Curtis A. Karnow

Superior Court Case No. CGC-16-556034

APPELLANTS’ REPORTERS’ TRANSCRIPT ACCOMPANYING THE
DESIGNATION OF RECORD

Chris Baker
Deborah Schwartz
BAKER CURTIS & SCHWARTZ, P.C.
1 California Street, Suite 1250
San Francisco, CA 94111
Telephone: (415) 433-1064
Fax: (415) 366-2525

Counsel for Plaintiffs-Appellants
JOHN DOE, DAVID GUDEMAN, and PAOLA CORREAREPORTER’S TRANSCRIPTS
CHRONOLOGICAL INDEX

Transcript
No.

Title

Date

Page

Reporter’s Transcript of
Proceedings

(Google Demurrer Hearing and
Adecco Motion to Stay)

June 23, 2017

ARTO003

Reporter’s Transcript of
Proceedings

(Case Management
Conference)

Aug. 2, 2017

ART049

Reporter’s Transcript of
Proceedings

(Adecco Demurrer Hearing 1)

Reporter’s Transcript of
Proceedings
(Adecco Demurrer Hearing 2)

Sept. 13, 2017

Nov. 7, 2017

ARTO077

ART094

Reporter’s Transcript of
Proceeding

(Petition to Coordinate
Hearing)

Jan. 4, 2018

ART109REPORTER’S TRANSCRIPTS
ALPHABETICAL INDEX

Transcript Title Date Page
No.

3. Reporter’s Transcript of Sept. 13,2017} ARTO77
Proceedings
(Adecco Demurrer Hearing 1)

4, Reporter’s Transcript of Nov. 7, 2017 ART094
Proceedings
(Adecco Demurrer Hearing 2)

2. Reporter’s Transcript of Aug. 2, 2017 ART049
Proceedings
(Case Management
Conference)

1. Reporter’s Transcript of June 23, 2017 ARTO003
Proceedings
(Google Demurrer Hearing
and Adecco Motion to Stay)

5. Reporter’s Transcript of Jan. 4, 2018 ARTILO9

Proceeding
(Petition to Coordinate
Hearing)TRANSCRIPT 1 - APPELLANTS’ REPORTER’S TRANSCRIPTS

ART003John Doe, et al. vs. Google, Inc., et al.

Reporter's Transcript of Proceedings
June 23, 2017

( ) COURT REPORTING

www.aptusCR.com / 666.999.6310

ART00424

25

Transcript of Proceedings
SUPERIOR COURT OF CALIFORNIA

COUNTY OF SAN FRANCISCO

JOHN DOE, DAVID GUDEMAN, et al.,

Plaintiffs,

GOOGLE, INC., et al.

Defendants.

San Francisco, California

Friday, June 23, 2017

Reported By:
ALESIA L. COLLINS,
CSR No. 7751, CLR

Job No.: 10033616

vs. Case No.

REPORTER'S TRANSCRIPT OF PROCEEDINGS

John Doe, et al. vs. Google, Inc., et al.

CGC-16-556034

www.aptusCR.com

ART005

Page 124

25

Transcript of Proceedings John Doe, et al. vs. Google, Inc., et al.
SUPERIOR COURT OF CALIFORNIA

COUNTY OF SAN FRANCISCO

JOHN DOE, DAVID GUDEMAN, et al.,
Plaintiffs,
vs. Case No. CGC-16-556034
GOOGLE, INC., et al.

Defendants.

Reporter's Transcript of Proceedings, taken at
the San Francisco Superior Court, located at 400
McAllister Street, Department 304, San Francisco,
California, on Friday, June 23, 2017, before Alesia L.

Collins, CLR, Certified Shorthand Reporter No. 7751.

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ARTO00624

25

Transcript of Proceedings John Doe, et al. vs. Google, Inc., et al.

Appearances:

Heard Before the Honorable Curtis Karnow:
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO, DEPARTMENT 304
400 McAllister Street

San Francisco, California 94102

For Plaintiff(s):

BAKER CURTIS & SCHWARTZ, P.C.
By: CHRISTOPHER BAKER, Esq.

44 Montgomery Street

Suite 3520

San Francisco, California 94104
415 433-1064

cbhaker@bakerlp.com

For the Defendants, Google, Inc., and Alphabet, Inc.:

PAUL HASTINGS

By: AL LATHAM, Esq.
ZACHARY HUTTON, Esq.

515 South Flower Street

Suite 2500

Los Angeles, CA 90071

213 683-6301

cameronfox@paulhastings.com

zachhutton@paulhastings.com

For the Defendant, ADECCO USA, Inc.:

EPSTEIN BECKER & GREEN, P.C.

By: STEVEN R. BLACKBURN, Esq.
MATT GOODIN, Esq.

655 Montgomery Street, Suite 1150

San Francisco, CA 94111

415 398-3500

sblackburn@ebglaw.com

Page 3

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ART00724

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Transcript of Proceedings John Doe, et al. vs. Google, Inc., et al.
Appearances: (Continued)

For the Plaintiff, Rachel Moniz (in related case
17-CIV-01736; San Mateo County Superior Court)

SCHNEIDER WALLACE COTTRELL

By: KYLE G. BATES, Esq.

2000 Powell Street, Suite 1400
Emeryville, CA 94608

415 421-7100

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ART008Transcript of Proceedings John Doe, et al. vs. Google, Inc., et al.
Reporter's Transcript of Proceedings
San Francisco, California; Friday, June 23, 2017
4:02 to 4:46 p.m.
PROCEEDINGS

THE COURT: Good afternoon.

ALL COUNSEL: Good afternoon, Your Honor.

THE COURT: Unfortunately, we don't have a lot
of time. We're going to have to stop around 4:30, so
let me get right to it.

With respect to -- I just want to note that the
plaintiff cited a non-citable case -- the "Balog" case
at 203 Cal. App. 3rd 1295 -- which is sanctionable
conduct.

Moving on to the stay motion. My guess is that
we should probably take that off calendar or put it
aside -- one way or another, let me know what you think
-- because we probably have to figure out what the
claims are in this case before we know what should or
shouldn't be stayed.

It looks like there is a dispute as to who is
first to file on some of the claims, but perhaps not on
others, so it may be best to set that motion aside until
the preemption issues are decided. But, you can let me

know what you think about that.

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ART009Transcript of Proceedings John Doe, et al. vs. Google, Inc., et al.

With respect to this peculiar pleading by
third-party, Rachel Moniz, it's called a "Brief In
Support of Defendant Adecco's Motion to Stay," then on
the first sentence, it says it's -- it seeks to
intervene. So, I don't know if this is a motion to
intervene, or if it's just a brief, or what it is, but,
obviously, I'm ignoring it for now.

Moving directly into the preemption issues.

Let me, just very briefly, not give a tentative, but
pose some questions which perhaps you can weave into
your relatively brief presentations.

First of all, with respect to the request for
judicial notice, I don't think any of those are opposed,
but let me know if I'm wrong.

Turning to the defendant's papers, a couple of
questions. One is, could we see these claims that are
presented in the complaint differently than the way they
have been cast by the defendant?

For example, claims [sic.] one, we could treat
that as a claim which is not focused on communication
among the employees, but while they're directed to
communications with respect to respective employers --
and, maybe claims two and three should be construed the
same way.

Claim four could be construed as dealing with

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ART010Transcript of Proceedings John Doe, et al. vs. Google, Inc., et al.
communications not among employees, but with lawyers.
Claims five and six address communications with
government, and as so construed, would that take it out
of preemptive impact of what we'll call Garmin
preemption.

Another question for the defendant is, with
respect to the arguments that Google has presented here,
it looks like all labor relations issues are preempted.
That is, I am trying to come up with some kind of a PAGA
claim which could ever survive preemption. I'm trying
to get a sense from the defendants of how broadly this
preemption really goes.

I assume Google agrees that claims by
supervisors are not preempted, but let me know if that's
true, and if it is true, which claims would that then
preserve in this case.

With respect to the plaintiff's opposition,
I've had a hard time figuring out the plaintiff's
argument. The plaintiff takes 11 pages in the
opposition -- most of the opposition -- to just tell me
that Google has violated laws. I assume that's true for
today's purposes, but it's not helpful.

The “Iskanian" argument -- I-S-K-A-N-I-A-N --
is frivolous, and has nothing to do with the issues that

we have to decide today. It does not matter that the

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ART011Transcript of Proceedings John Doe, et al. vs. Google, Inc., et al.
plaintiff doesn't actually allege that the facts show a
violation of the NLRA. That doesn't matter. That would
make it easy if the complaint did say that, but it
doesn't have to say that to be subject to the preemption
analysis.

Much of the argument that plaintiff presents is
that PAGA is a really important claim -- really
important thing in California law. I'm not sure how
that helps.

I think what the issue comes down to -- and, at
the very end of the opposition, for a couple of pages
plaintiff finally turns to it -- is the Garmin

exemption, the local interest.

And, I think -- and, this is really for both
sides -- the issue is -- the critical issue is, to cite
the cases -- whether the controversy presented to the

State court is identical to the controversies that could
be presented to the Board -- to the NLRB.

Plaintiff's analysis of that issue seems to be
that as long as the legal issues are different, there's
no preemption. And, the way the plaintiff then pursues
that is an exercise in logic, which would establish in
every single case that the issues are never identical,
because under plaintiff's reading there will always be a

difference between the state legal issue, which could be

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ART012Transcript of Proceedings John Doe, et al. vs. Google, Inc., et al.
phrased as, for example, does this behavior violate
PAGA, or is this an illegal restraint of trade?

That issue will never be the issue, as phrased
by the NLRB, because those issues -- perhaps referring
to identical conduct -- will be more like, does this
conduct infringe rights under Section 7, under
subsection 8?

So, the plaintiff -- if that's the way the
plaintiff thinks about how to use the identical
controversy test -- that is, you can just phrase issues
differently under state and federal law -- then Garmin's
exemption preemption will always obtain, because you
will always be able to do that, so that can't possibly
be the test.

So, what we come down to ultimately is, what is
your thought as to what the test is for determining
whether a controversy is identical or not? We look at
the "Walmart Stores" case, we come up with at least
three or four different ways to think about it. Maybe
there is a better case than "Walmart Stores." Maybe you
can lead me to a case that's better.

Is it that we have to decide whether there are
different key issues to be decided? Do we look at
whether the "gravamen" of the claims, or the ultimate

issues -- by that, I mean that in the technical sense,

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ART013Transcript of Proceedings John Doe, et al. vs. Google, Inc., et al.
the ultimate issues that are supposed to be the subject
of pleading in the complaint -- that the ultimate issues
are different.

Or to quote "Walmart Stores", that, "the issues
the trial court needed to consider or resolve are
different than what the NLRB could do and what the state
court is being asked to do."

So, I'm trying to figure out how to think
through this identical controversy criteria, because I
think that's the only issue I need to figure out at this
point as a matter of pleading.

And, given your view as to how I figure that
test out, what do you think the result is when it comes
to the complaint that we have in this case? So, I need
to stop talking, and turn it over first to the moving
party, and then we will hear from the plaintiff, and
then a final few words.

MR. LATHAM: Good afternoon, Your Honor. I'm
Al Latham, here for Google and Alphabet. I want to
thank you for your thoughtful questions.

Let's start at the beginning with your question
of whether these claims could be viewed differently,
construed differently. And, the answer is, yes, they
always could be construed differently.

This goes to the other point Your Honor was

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ART014Transcript of Proceedings John Doe, et al. vs. Google, Inc., et al.
making. You can always say the words a little bit
differently to talk about, all right, do the
confidentiality rules violate the right to talk toa
lawyer, violate the right to blow the whistle with the
government? Do they violate the right to talk among
yourselves as employees? Do they violate the right to
talk to a union organizer?

The easy answer to that in this case is that,
under the National Labor Relations Act, the general
counsel of the National Labor Relations Board has
alleged that those rules and contracts violate all of
those rights under the National Labor Relations Act.

There is ample authority under the National
Labor Relations Act that an overbroad confidentiality
rule will violate the right to talk amongst yourselves
as employees, it will violate the right to talk with
outsiders, including customers. It will violate the
right to talk with counsel or with the government.

And, we see that specifically in the complaint.

If Your Honor looks at the -- now, I'm talking -- excuse
me, Your Honor -- about the NLRB complaint, which is
attached to our notice -- Request for Judicial Notice.

I would urge the Court, as the Court thinks
about these issues, and they are -- they are challenging

-- to pay particular attention to the NLRB complaint,

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ART015Transcript of Proceedings John Doe, et al. vs. Google, Inc., et al.
because what you will see is item, after item, after
item, where the general counsel of the National Labor
Relations Board is alleging that our policies and rules
and contracts violate con -- violate the "Act" by having
overbroad confidentiality provisions that affect each
and every one of the issues that you're talking about.

And, in particular, paragraph 6L of the
administrative complaint -- let me get to that, if I
may. Paragraph 6L, “One confidentiality rule that has a
carve-out" -- the second paragraph under 6L -- "nothing
in this or other Google policies is intended to limit
employees' rights to discuss with other employees
terms," et cetera, et cetera, "or to communicate with
government agency regarding violations of law."

The general counsel of the NLRB, by issuing
this complaint against this rule, says your savings
clause is not adequate. Now, we will dispute that in
the right forum before the NLRB, but they are claiming
that we have infringed upon the right to blow the
whistle, which, again, is a right under the National
Labor Relations Act.

The merits of that are to be disputed later,
but everything that you asked, could it be viewed
differently in the plaintiff's PAGA complaint? Yes.

Would it help plaintiff's case to view it differently?

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ART016Transcript of Proceedings John Doe, et al. vs. Google, Inc., et al.
No. Because it arises from the same confidentiality
provision that the NLRB's general counsel claims violate
the "Act".

And, you know what? Let's not forget that this
is a situation where the plaintiff himself, Doe, here,
is the charging party in front of the National Labor
Relations Board, along with another employee of Google.

So, we have a situation where not only is this
a -- these are claims that could be brought before the
NLRB, they are being brought, and they are being brought
based on the unfair labor practices charge filed by --

THE COURT: There's two problems. One is, the
fundamental theory of your motion is that whether or not
the NLRB has a complaint or not -- absolutely doesn't
matter. I could figure this out even if there wasn't a
complaint.

The complaint, I suppose, is gilding the lily,
perhaps, but even if there wasn't a complaint, I should
by able to figure out whether these issues were arguably
under the jurisdiction of the Board, and that's the
fundamental analysis that I'm not sure how to do.

The second thing is that, it sounds like your
position is that if the underlying activity is the same,
then that proves that we've got a preemption problem

here.

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ART017Transcript of Proceedings John Doe, et al. vs. Google, Inc., et al.

But, at least in "Walmart", "Walmart" was
fairly clear that, "Shared factual allegations are not
dispositive," and the fact that the same conduct
challenged in the State action could have formed, or did
form, the basis of unfair labor practice charge doesn't
matter.

So, the fact that we have exactly the same
facts -- let's say the same policy -- at stake in these
two different forms doesn't quite answer the question,
does it?

MR. LATHAM: I think it does, Your Honor. If
you focus on "Walmart," "Walmart" is an application of
the United States Supreme Court's decision in "Sears,"
which goes back 40 years. And what the U.S. Supreme
Court, in essence, said in "Sears" is that trespass is a
matter of such local interest that it is an exception to
preemption.

With respect, Your Honor, I don't think the
sole question here is the identical question.

THE COURT: Okay.

MR. LATHAM: I think if it arises out of the
same set of facts, and it's a violation of both the
National Labor Relations Act, based on those facts and
claims, and it would be a violation of some California

law, the preemption question, I think, goes beyond

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ART018Transcript of Proceedings John Doe, et al. vs. Google, Inc., et al.
identical, because as you rightly said, it will never be
identical in terms of all of the elements of proof, for
example.

If you look at the facts, not the element of
proof of each cause of action or an unfair labor
practice charge, and once you have looked at the facts,
if the claims all arise out of those same facts, then
it's identical enough to move to the next question.

THE COURT: The trouble is, that seems to go

directly against "Walmart Stores." I mean, literally
and directly, "Walmart Stores" quotes, "shared factual
allegations are not dispositive." That can't be right.

And, when you talk about the local interest
exception, at least "Walmart Stores" was under the
impression that the local exception, if you want to call
it that, was subsumed and explained by, and could be
reduced to this one test, being identical in
controversy. Do you think I have misread "Walmart
Stores," perhaps?

MR. LATHAM: Your Honor, as I recall "Walmart,"
it relies heavily on "Sears" --

THE COURT: True.

MR. LATHAM: -- and the trespass exception.
Now, you know, this -- this is a difficult area of law,

and courts sometimes mix together the two concepts. My

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ART019Transcript of Proceedings John Doe, et al. vs. Google, Inc., et al.
own view of "Walmart," Your Honor, is that it was
necessary to reach the trespass exception in order to
resolve the case that way.

Let me move on, though, because Your Honor has
said your time is limited, and I want to be sure to
address all of your questions.

You asked what kind of PAGA claim could
survive. In other words, what's the limiting principle
that we are advocating.

I think the limiting principle is essentially
that you look case-by-case at not just what does the
statute say compared to the National Labor Relations
Act, but what claims are being made in the particular
case.

I think in this particular case, although it
is, you know, very hard to discern exactly by each cause
of action what is meant and so forth, in the briefing
plaintiff's counsel identified three things that have
been done wrong by Google in its rules and contracts:
Illegal restraint of trade, illegal prohibition of the
right to speak, illegal prohibition on whistle blowing.

And, each and every one of the basis for these
alleged illegal actions is covered by the NLRB complaint
in the general counsel's attack on each and every one of

the confidentiality provisions and contractual

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ART020Transcript of Proceedings John Doe, et al. vs. Google, Inc., et al.
provisions that the plaintiff seeks to attack in this
PAGA exercise.

So, then, that being the case, there being an
overlap that is entirely consistent -- we're talking
about exactly the same policies and the argument that by
virtue of their being overbroad -- too broad, these
following -- these adverse effects flow out of it.

If you look at that, then I think what you have
to say is, they really are identical. Not each element
of the claim, but they are identical in that all of
these bad things allegedly come out of the same set of
policies, and it is both a violation of the National
Labor Relations Act, according to the plaintiff, anda
PAGA violation.

But, once you do that, you don't put your pen
down and say that's the end of it. You look at that
local interest exception. And, in -- this is -- this is
a limiting principle. That is the main limiting
principle. What is the local interest exception?

And, in that regard, I would especially direct
Your Honor's attention back to the "Rodriguez" case, the
First Appellate District, which is cited in our papers,
and the follow-on "Luke" case, which is the First
Appellate District as well, cited in our papers.

Let me perseverate, if I may, just a moment,

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ART021Transcript of Proceedings John Doe, et al. vs. Google, Inc., et al.
Your Honor, on “Rodriguez," because I think it's
particularly important. In that case, the plaintiff
claimed that one reason that the plaintiff was
terminated, discriminated against, was that the
plaintiff went to the PUC, the Public Utilities
Commission, and complained about the employer. And, the
plaintiff said, I was fired for that reason, and that's
a violation of my free speech rights here in California.

The Court, first of all, said -- and, this is
very important, we actually quoted it in our papers -- I
think it was presiding Justice Klein at the time said,
this is clearly a matter of great concern to the State
of California, no question about it.

I mean, what -- we want people to be free to go
to the PUC and exercise their free speech and criticize
their employer. But, then the Court said, "However, if
the plaintiff, Rodriguez, was fired for the reason that
is articulated, complaining about the employer to the
PUC, we believe that would be an unfair labor practice
under the National Labor Relations Act, and as such
would interfere with the NLRB's jurisdiction, and
therefore it was preempted despite the plaintiff's claim
that plaintiff was exercising free speech under
California law."

Now, the limiting -- what plaintiff in this

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ART022Transcript of Proceedings John Doe, et al. vs. Google, Inc., et al.

case, "Doe," essentially argues is the entire growing
board of California labor laws is not preempted because
it's all very important, it serves good purposes, the
legislature enacted it. Your Honor has already
identified the fallacy of that.

But, looking at the cases that have addressed
the question of what's the limiting principle, it tends
to be a limiting principle of whether the regulation in
question deals with health or safety, or violence, or
threats of violence, or things that are akin to violence
or threats of violence, such as one of the cases cited
by "Doe" involving the intentional affliction of
emotional distress by threatening someone with violence
or trespass.

These are areas of law that have been
recognized as falling within the local interest
exception. There is such a strong interest that, not
withstanding preemption, there is the right to pursue a
State action. However, none of the claims that
plaintiff brings in this PAGA action fits into any of
those categories.

Let me say one other thing about the question
of survival in some cases. Your Honor doesn't have to,
in this case, say either that all of the statutes that

are cited in this complaint are preempted or are not

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ART023Transcript of Proceedings John Doe, et al. vs. Google, Inc., et al.
preempted.

If you look closely at the case law, that's not
how the Courts do it. They say in this case, given what
is being alleged, given the factual basis of what's
being alleged, this is something that could be an unfair
labor practice -- and, in this case, remember, Doe
alleges it is an unfair labor practice -- and,
therefore, we're going to step aside unless this falls
within the local interest exception, which is not the
case here.

That this could be an unfair labor practice is
-- is indisputable because he is alleging also that it's
an unfair labor practice. Let me again, mindful of the
Court's time, be sure to answer the other questions.

Your Honor asked about supervisors. With
respect to Your Honor, we do not agree that supervisors
could maintain this PAGA claim, for the very simple
reason that the question of who is a supervisor is also
a matter for the National Labor Relations Board in the
first instance. It's part of their primary
jurisdiction.

And, so, for this court, or any state court to
say, well, we're going to exclude supervisors under the
National Labor Relations Act, I have to tell you that's

biting off more trouble than this Court likely knows,

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ART024Transcript of Proceedings John Doe, et al. vs. Google, Inc., et al.
because who is a supervisor, and who is not a
supervisor, is hotly fought out, happens to be a very
hot issue before the National Labor Relations Board
right now.

THE COURT: Is it an issue in this case?

MR. LATHAM: It certainly is. First of all,
"Doe," himself, litigated to a -- fairly well the
question of whether he personally was a supervisor. He
contended technically a manager -- there's technically
under the "Act" a distinction between manager and
supervisor. He contended he was a statutory employee
under the "Act."

The general counsel has rejected that theory,
but he appealed it all the way to Washington. That's
not in the record before Your Honor, but I think it will
be undisputed. And, the general counsel's office in
Washington said, no, sir, you are a manager.

Now, the reason, however, that it would not be
appropriate for this Court to say, okay, you can have a
PAGA claim for supervisors and managers, is that the
NLRB gets to decide in the first instance who they are.
And, even before the Board these issues are hotly
contested.

I cited one recent case, two-to-one vote of the

Board, where the majority said a tugboat captain is not

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ART025Transcript of Proceedings John Doe, et al. vs. Google, Inc., et al.
a supervisor -- vigorous dissent. These things are for
the Board to decide as part of its primary jurisdiction
in the first instance.

I want to very briefly on that say that the
plaintiff is just plain wrong in contending that former
employees are not covered by the "Act". They are indeed
covered by the "Act".

I would like to cite, if I may, a case that is
not in our brief. It's a very recent one called "Grand
Sierra Resort." The citation is NLRB -- it's 365 NLRB
No., that's N-o, period -- 76, May 16 of this year.

And, here is the relevant quotation, footnote one:

"We find in agreement with the judge that as a
former employee of the Respondent involved in a labor
dispute relating to her former employment, Tiffany
Sargent" -- that was the charging party -- "falls within
the Act's broad definition of "employee," which includes
applicants for employment, former employees, employees
of other employers, and members of the working class
generally."

In addition, as we pointed out in our briefing,
Your Honor, when the Board decides a case, it has the
authority to extend relief to former employees.

I went back and looked at the cases that we

cited from the Board, none of which were contested by

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ART026Transcript of Proceedings John Doe, et al. vs. Google, Inc., et al.
plaintiff Doe in his response, and in one of them,
that's exactly what happened. It's the "Victory" case
-- Victory Casino case, which we cited in our original
papers at page 11. In that case --

THE COURT: I'm going to have to ask you to
wind up and give the plaintiff a chance to respond.

MR. LATHAM: In any event, in that case,
confidentiality was the issue and former employees were
notified.

Your Honor, if I have failed to answer any of
your questions, I would appreciate the opportunity for
your asking me and reminding me that I failed to do so.

THE COURT: You will have the last word. Let
me hear from the plaintiff.

Thank you very much. I appreciate the help.

MR. LATHAM: Thank you, Your Honor.

MR. BAKER: First, I'd like to apologize to the
Court for misciting the "Balog" case. The case was
quickly republished, and I provided the 203 Cal. App.
3rd cite instead of the 204 Cal. App. cite, but it is a
published case.

THE COURT: Not the one that you cited, but
anyhow...

MR. BAKER: I'm sorry?

THE COURT: Not the one that you cited.

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ART027Transcript of Proceedings John Doe, et al. vs. Google, Inc., et al.

MR. BAKER: It's the same case. I just pointed
to the wrong --

THE COURT: I think we can go on.

MR. BAKER: So, this is where I think the
rubber hits the road, Your Honor. "Walmart" has the
identical controversy test, and in applying that test,
if the legal issues are different under "Walmart," the
exception applies.

THE COURT: The legal issues will always be
different, right?

MR. BAKER: I hear that, Your Honor. That's
what "Walmart" says, but I also think that we can refine
that a little bit.

THE COURT: Okay.

MR. BAKER: Because if you look at the
"Rodriguez" case, for example, the employee conduct that
formed the basis of the claim was -- concerned a
protected activity. So, if this Court is going to have
to determine, as part of resolving the case, whether or
not there was an unfair labor practice, then you have
preemption.

Same thing with the "Luke" case, Your Honor,
which was, the employee brought a claim under 232.5, and
the facts showed that she had engaged in protected

concerted activity, and that was the -- that was what

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ART028Transcript of Proceedings John Doe, et al. vs. Google, Inc., et al.
her 232.5 claim was.

So, if the Court has to determine an unfair
labor practice in order to adjudicate the claim, then I
think -- then I think you have to look more carefully at
preemption.

THE COURT: So, is it your position that as
long as you, the plaintiff, don't ask me to adjud -- or,
a court in here, you don't ask the Court to adjudicate
whether or not there was unfair labor practices -- as
long as you don't ask me that, and you just say decide
the PAGA claims, decide "Whistleblower," decide all the
other stuff, that's it, you've disposed of the
preemption argument?

MR. BAKER: No. What I'm saying is that the
Court doesn't have to adjudicate an unfair labor
practice claim as a part of resolving the case, then
there is no preemption provided, the local interest
exception applies.

And, if I could just speak briefly about the
local interest exception. The idea that it is limited
to trespass and violence is -- is incorrect. For
example, in the "Lynn" case, that was a defamation case
having nothing to do with violence or intimidation. The
defamation claim was allowed to proceed.

In the fraud cases that we have cited, the

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ART029Transcript of Proceedings John Doe, et al. vs. Google, Inc., et al.
unfair labor practice was offering strike breakers jobs
as permanent replacement in the face of an unfair labor
practice strike. The misrepresentation claims have that
as part of the case that had to be adjudicated, but
there is no allegation of violence, or intimidation, or
anything else.

In another case cited, the "Dang" case, as well
as the "Kahveci" case, the "Dang" case involved a
wrongful termination claim by a supervisor -- and, I
will circle back to that -- who had supported union
activity. No allegations of violence, also no
preemption.

The same with the "Kahveci" case, where a
breach of contract claim was allowed to proceed. No
allegation of violence, no allegation of intimidation.

So, this notion that the local interest
exception only relates to violence or threats of
violence is simply false. And, that's something that I
think the Court has to look at with respect to the
claims upon which the PAGA claims have --

THE COURT: How do I figure it out? If it
could be any kind of -- if it could be breach of
contract, fraud, any of these things could possibly
qualify for the local exception, then what's the test?

MR. BAKER: The test is, is it a different

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ART030Transcript of Proceedings John Doe, et al. vs. Google, Inc., et al.
legal issue? How important is it to the State? And,
also, you -- you would also have to look at the risks of
interference with the National Labor -- National Labor
Relations Act.

THE COURT: Isn't the risk of interference, at
least in this particular case, almost 100 percent, given
what the NLRB is prosecuting against Google?

MR. BAKER: Not at all, Your Honor. You could
say the same thing about the defamation case in "Lynn."
Only if the parties -- only if they're working at cross
purposes is there a risk of interference.

And, in that respect, I want to point to the
Court one thing that the Court can do to limit the risk
of interference. One thing that the Supreme Court
instructs the courts to do in these kinds of situations
is to make sure that the remedy is not too strong.

So, for example, both the "Lynn" case, which
involved defamation, and the "Farmer" case, which
involved emotional distress, the Court said, hey, if the
remedy -- if the jury comes back with too much of a
damages award, or too great of a punitive damages award,
we would expect the Court to dial that back.

THE COURT: I can't decide it now. I have to
wait for a jury verdict.

MR. BAKER: You can't decide that now, but if

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ART031Transcript of Proceedings John Doe, et al. vs. Google, Inc., et al.
the case proceeds, this court will have the jurisdiction
to determine what the penalty is, and this Court has the
jurisdiction to adjust any kind of PAGA penalty to
eliminate that risk of interference.

THE COURT: So, the way to figure out local
exemption is to see how important the policy is or a set
of rules are to California?

MR. BAKER: How deeply rooted it is and how
important it is.

THE COURT: How deeply rooted it is? How
deeply rooted is PAGA?

MR. BAKER: It is incredibly deeply rooted,

Your Honor, and I think the "Iskanian" case makes that

clear.

THE COURT: I don't think so.

MR. BAKER: The Court or the State has a right
to -- pursuant to its police power -- to set minimum

labor standards.

THE COURT: "Iskanian" is just a case about --
"Iskanian" just says that it's not subject to the United
States Supreme Court rules of arbitration, because the
arbitration agreement doesn't cover the state of
California.

California doesn't sign arbitration agreements,

and PAGA Plaintiffs aren't -- PAGA plaintiffs can't sign

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ART032Transcript of Proceedings John Doe, et al. vs. Google, Inc., et al.
an arbitration agreement on behalf of the State. That's
all “Iskanian" is. Now, how they escape from the
auspices of what otherwise would be controlling United
States Supreme Court decisions on the imposition of the
arbitration clause --

MR. BAKER: Right. But, you also can't ignore
the importance to the State of regulating the
relationship between employers and employees in finding
no preemption. And in that respect, there is not just
the "Iskanian" case, Your Honor, there is also
"Metropolitan Life," which talks about it. And, there's
a California Supreme Court case that also talks about it
that's called Grocers -- the "Grocery Association."
Trying to find it right now, Your Honor. I apologize.

THE COURT: Let me just give you a couple of
more minutes before we finish without my interrupting
you.

MR. BAKER: Okay. The only other thing, Your
Honor, is with respect to supervisors, the idea that
this Court can't grant relief to any supervisors because
some supervisors may or may not be supervisors under the
"Act" has been rejected by the California Court of
Appeals.

In "Dang," footnote two, they rejected that

argument. The -- the employer argued, hey, you can't

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ART033Transcript of Proceedings John Doe, et al. vs. Google, Inc., et al.
decide this wrongful termination case because it's up to
the Board to decide whether or not this person is the
supervisor. And, the Court said, no, we can decide
whether or not they're a supervisor, and the employer
bears the burden of proving that it's not.

And, with respect to former employees, Your
Honor -- and, remember, all -- all of the former Google
employees are still subject to this confidentiality
agreement, and all -- everything -- and, all of these
limitations, including with respect to SEC violations,
Federal Defense Trade Secret Act, the statute is clear
that former employees are not subject to the
jurisdiction of the "Act" unless they were terminated in
the course of, or because of, a labor dispute.

That's the only exception. Because you have to
be able to reinstate former employees who were
terminated because they were trying to unionize. And, I
don't see the -- I don't see the case that I just
received today, that was cited by Google, as being any
different with respect to that proposition.

You know, the only other thing I would say,
Your Honor, is the "Lynn" case said that there was an
expectation that when there is a violation under the
NLRA, and a violation of state law