Trial Materials: MELISSA WOODS VS. CBRE GROUP, INC et al

On February 18, 2014 a Trial Materials was filed involving a dispute between Woods, Melissa, and Cbre Group, Inc, Does 1 To 100, Inclusive, for civil in the District Court of San Francisco County.

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1 THE VAN VLECK LAW FIRM, LLP
Brian F. Van Vleck, State Bar No. 155250
2 Stuart H. Kluft. State Bar No. 315081 ELECTRONICALLY
5757 Wilshire Boulevard, Suite 535
3 Los Angeles, California 90036 F I L E D
Superior Court of California,
Telephone: (323) 920-0250 County of San Francisco
4 Facsimile: (323) 920-0249
02/10/2020
Clerk of the Court
5 Attorneys for Plaintiff, BY: RONNIE OTERO
Melissa Woods Deputy Clerk
6

8
SUPERIOR COURT OF THE STATE OF CALIFORNIA
9
FOR THE COUNTY OF SAN FRANCISCO
10

11 MELISSA WOODS, ) CASE No: CGC 14-537527
)
12 Claimant, )
vs. ) TRIAL BRIEF OF PLAINTIFF
13 ) MELISSA WOODS
CBRE GROUP, INC., and DOES 1 through 100 )
14 inclusive )
) Trial Date: January 27, 2020
15 Respondent. )
)
16 )
)
17 )
)
18 )
)
19 )
)
20

28
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1 TABLE OF CONTENTS
2 I. INTRODUCTION ........................................................................................................................... 3
3 II. THE MATERIAL FACTUAL AND LEGAL ISSUES HAVE ALREADY BEEN DECIDED
4 BY THE ARBITRATOR. .............................................................................................................. 1
5
A. The Arbitrator’s Findings of Fact and Law are Collateral Estoppel and May Not be Re-
6 Litigated by CBRE. ................................................................................................................ 1

7 B. The Arbitrator’s Specific Findings Are Dispositive as to the Remaining Non-Arbitrable
Issues Presently Before the Court. .......................................................................................... 3
8
1. CBRE Maintains a Uniform Policy of Deducting the Entire Amount of any Benefit
9 Arrears in a “Lump Sum” From an Employee’s First Paycheck Following a Leave of
Absence............................................................................................................................. 3
10

11 2. CBRE’s Policy Results in Unlawful Deductions and Payment of Sub-Minimum Wages.
4
12
3. CBRE’s Deduction Policy Also Violates California Minimum Wage Law under Labor
13 Code § 1194.2. .................................................................................................................. 5
14 4. “CBRE, Inc.” is Properly Included as a Party to the Action under California’s
“Misnomer Rule” of Pleading Notwithstanding that the Employer May Have Been
15 Misnamed as “CBRE Group, Inc.” ................................................................................... 6
16
III. CBRE’S PAGA LIABILITY IS ESTABLISHED BASED ON THE ARBITRATOR’S
17
FINDING OF LABOR CODE VIOLATIONS. ........................................................................... 7
18
IV. THE FACTUAL AND LEGAL FINDING OF THE ARBITRATOR ESTABLISH
19
PLAINTIFF’S RIGHT TO ENJOIN CBRE FROM CONTINUING ITS UNLAWFUL
20
POLICY. ....................................................................................................................................... 7
21
A. The Arbitrator’s Findings of Fact and Conclusions of Law Conclusively Establish that
22 Plaintiff is Entitled to Enjoin CBRE from Enforcing Its Illegal Deduction Policy. ............... 7
23 B. Plaintiff’s Claim for Public Injunction Relief Under The UCL is a Matter for The Court to
24 Decide. .................................................................................................................................... 9

25 1. The UCL Establishes a Non-Waivable Right to Obtain a so-called “Public” Injunction
for the Benefit of Others. .................................................................................................. 9
26
2. Plaintiff FAC Alleges a Non-Waivable Claims for Public Injunctive Relief Under the
27 UCL. ............................................................................................................................... 10
28 3. Because Plaintiff’s Non-Waivable Public Injunctive Relief is Outside the Scope of the
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Parties’ Arbitration Agreement and Is Therefore a Matter for the Court to Decide....... 12
1

2 V. CONCLUSION ............................................................................................................................ 13

28
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TABLE OF AUTHORITIES
1
Page(s)
2
Cases
3

4 Blair v. Rent-A-Ctr., Inc.,
928 F.3d 819 (9th Cir. 2019) ........................................................................................................ 10
5 Bucur v. Ahmad,
244 Cal. App. 4th 175 (2016) ......................................................................................................... 2
6 Davis v. Farmers Insurance Exchange,
supra, 245 Cal.App.4th 1302...................................................................................................... 4, 5
7 Delisle v. Speedy Cash,
8 2019 WL 2423090 (C.D. Cal. 2019) ............................................................................................ 11
Hawkins Pacific Coast Building, Inc.,
9 124 Cal.App.4th 1497 (2004) ......................................................................................................... 6
Herr v. Nestle U.S.A., Inc.,
10 109 CA4th 779 (2003) .................................................................................................................... 8
Hudgins v. Neiman Marcus Group, Inc.,
11 34 Cal.App.4th 1109 (1995; emphasis supplied)............................................................................ 4
12 In re Ter Bush,
273 B.R. 625 (Bankr. S.D. Cal. 2002) ............................................................................................ 2
13 Ivanoff v. Bank of Am., NA,
9 Cal.App.5th 719 (2017) ............................................................................................................... 9
14 Kelly v. Vons Companies, Inc.,
67 Cal. App. 4th 1329 (1998) ......................................................................................................... 3
15
Lyons v. NBC Universal Media, LLC,
16 2019 WL 6703396 (C.D. Cal. 2019) ............................................................................................ 11
Mayberry v. Coca Cola Bottling Co.,
17 244 Cal.App.2d 350 (1966) ............................................................................................................ 7
McGill v. Citibank, NA,
18 2 Cal.5th 945 (2017) ..................................................................................................... 9, 10, 11, 13
Robinson v. U-Haul Co. of California,
19
4 Cal. App. 5th 304 (2016) ............................................................................................................. 8
20 Sakkab,
803 F.3d ........................................................................................................................................ 10
21 Thibodeau v. Crum,
4 Cal. App. 4th 749 (1992) ............................................................................................................. 2
22
Statutes
23
Cal. Lab. Code § 1194.2(a) ................................................................................................................. 6
24
California Civil Code § 3513............................................................................................................ 11
25 Section 1194.2 .................................................................................................................................... 7
§§ 221, and 1194.2.......................................................................................................................... 7, 8
26

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1 I. INTRODUCTION

2 The underlying causes of action contained in Plaintiff’s operative First Amended Complaint

3 were submitted to final and binding arbitration. The non-arbitrable issues which remain to be tried

4 by the court are Plaintiff’s claims for PAGA penalties and Plaintiff’s claim for an injunction

5 against CBRE’s unlawful policy. As explained below, these issues must be decided as a matter of

6 law based solely on the findings of the Arbitrator, which include:

7  CBRE Maintains a Uniform Policy of Deducting the Entire Amount of any Benefit

8 Arrears in a “Lump Sum” From an Employee’s First Paycheck Following a Leave of

9 Absence.

10  This policy is unlawful as it results in excessive deductions sub-minimum wage

11 payments in violation of Labor Code §§ 221 and 1194.2, respectively.

12  Plaintiff was subject to this policy in violation of these Labor Code provisions.

13  Plaintiff’s non-waivable claim for a UCL injunction on behalf of other employees is

14 outside the scope of arbitration and hence remains for the court to decide.

16 These findings cannot be relitigated by CBRE. Based solely on these findings, the Court

17 must rule as a matter of law that Plaintiff is: (a) entitled to PAGA penalties for each Labor Code

18 violation found by the Arbitrator; and (b) entitled to a UCL injunction that prohibits CBRE from

19 implementing its wage deduction policy without first ensuring that employees receive at least

20 minimum wage in each pay period.

22 II. THE MATERIAL FACTUAL AND LEGAL ISSUES HAVE ALREADY BEEN

23 DECIDED BY THE ARBITRATOR.

24 A. The Arbitrator’s Findings of Fact and Law are Collateral Estoppel and May Not be

25 Re-Litigated by CBRE.

26 Plaintiff’s Complaint alleges that, as a condition of taking a leave of absence, Defendant

27 CBRE followed a uniform policy of requiring its employees to agree that: “When I cease to receive

28 pay from CBRE during my leave, I am responsible for my monthly benefit contributions accrued
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1 upon my return. As I return to work, the arrears will be deducted from my first paycheck and

2 balance subsequent paychecks thereafter until balance is paid.” (First Amended Complaint

3 (“FAC”) at ¶ 30, Exh. A.)

4 The allegation that this policy was in violation of the Labor Code is the basis of all seven

5 causes of action alleged in the FAC complaint are based on: (1) unlawful wage deductions; (2)

6 failure to pay minimum wage; (3) failure to issue accurate itemized pay statements; (4) Unfair

7 Business Practices (UCL); (5) Conversion; and (7) PAGA.

8 CBRE moved to compel arbitration of the “individual” claims and disputes plaintiff agreed

9 to arbitrate and to stay the residual non-arbitrable claims. The Arbitrator issued an award in

10 Plaintiff’s favor finding liability against CBRE under the First Cause of Action (unlawful

11 deductions) and Second Causes of Action (failure to pay minimum wage. In the course of making

12 these rulings the Arbitrator set forth the Findings of Fact and Conclusions of Law which were

13 necessarily decided to reach this final conclusion.

14 “It is a recognized principle that an arbitration award is conclusive on matters of fact and

15 law.” 1 Thus, these findings are conclusively established for purposes of the present litigation.

16 Once a valid award is made, with the submission upon which it is
founded it becomes the sole basis for any further determination of
17 the rights of the parties with respect to any demands embraced in
18 the submission, and the latter are merged and extinguished in the
award. The award is conclusive on matters of fact and law, and all
19 matters in the award are thereafter res judicata, on the theory that
20 the matter has been adjudged by a tribunal which the parties have
agreed to make final, a tribunal of last resort for that controversy. 2
21

22 “It is also appropriate to give collateral estoppel effect to findings made during an
23

25
1 Thibodeau v. Crum, 4 Cal. App. 4th 749, 758–59 (1992); Bucur v. Ahmad, 244 Cal. App. 4th 175,
189, 198 (2016) (“For purposes of res judicata, an unconfirmed arbitration award is equivalent to a
26 final judgment.”); accord In re Ter Bush, 273 B.R. 625, 628 (Bankr. S.D. Cal. 2002) (“Under
California law, which controls the parties’ property rights in this case, an unconfirmed arbitration
27 award is viewed as the equivalent of a final judgment.”)
28 2 Thibodeau v. Crum, 4 Cal. App. 4th 749, 758–59 (1992).
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1 arbitration, so long as the arbitration had the elements of an adjudicatory procedure.” 3 For

2 example, in Kelly v. Vons, a civil wrongful termination action brought by an employee (who was

3 deemed to be in privity with the union in a prior arbitration), was barred due to the collateral

4 estoppel effect of the arbitrator’s finding that his employment had been terminated for economic

5 reasons. 4

6 Here, the arbitration proceeding resulted in a binding determination, inter alia, that “the

7 operation of Respondent’s Policy for collecting benefit contributions in arrears due to an

8 employee’s non-pay leave status” necessarily involves “excessive and unlawful payroll deductions”

9 insofar as it results in payment of sub-minimum wages in a particular pay period. (Arbitration

10 Order at p.16:14-23.). As a party to the arbitration, CBRE is bound by this finding – as well as all

11 other findings of fact and law – made by the Arbitrator in this action.

13 B. The Arbitrator’s Specific Findings Are Dispositive as to the Remaining Non-

14 Arbitrable Issues Presently Before the Court.

15 1. CBRE Maintains a Uniform Policy of Deducting the Entire Amount of any

16 Benefit Arrears in a “Lump Sum” From an Employee’s First Paycheck

17 Following a Leave of Absence.

18 The Arbitrator found that CBRE maintains a leave of absence policy in which “[o]nce the

19 employee no longer receives a payroll check, the benefits deductions ... will go into arrears until the

20 employee returns from his or her leave.” (Finding of Fact No. 5(b).) However, “Upon return from

21 leave, the accumulated deduction amount will be taken from the employee’s paycheck in a lump

22 sum.” (Id. (emphasis added).) Thereafter any “Remaining amounts will be deducted from

23 subsequent paychecks until payment for all benefit coverages have been paid.” (Id.) Moreover,

24 Moreover, this “Policy applies across the board to all California employees of CBRE.”

25 (Finding of Fact No. 6.) (emphasis added).)

26 Pursuant to CBRE’s policy, “CBRE deducted the sum of $1,560.32 from [Plaintiff’s]

27
3 Kelly v. Vons Companies, Inc., 67 Cal. App. 4th 1329, 1336 (1998).
28 4 Kelly, supra, 67 Cal.App.at 1336.
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1 paycheck in the first pay period upon her return to work leaving her with zero take-home pay.”

2 (Finding of Fact Nos. 11-12.) In a subsequent pay period “$1,756.85 was deducted, leaving her

3 again with a net take-home pay of zero.” (Finding of Fact No. 12.)

5 2. CBRE’s Policy Results in Unlawful Deductions and Payment of Sub-Minimum

6 Wages.

7 Plaintiff retained counsel and complained of the unlawful deductions. (Findings of Fact

8 Nos. 16.) As a result, CBRE attempted to mitigate its unlawful deductions policy on an ad hoc

9 basis by refunding certain deducted amounts and implementing a less draconian deduction schedule

10 for Plaintiff’s future pay periods. (Finding of Fact No. 15.)

11 In Arbitration CBRE asserted the argument that it had mitigated the harm of its policy in

12 this particular case. It also argued that Plaintiff had consented to the deductions by signing a

13 request for leave form that authorized the deductions. The Arbitrator rejected both arguments:

14
Claimant’s consent, expressed in her application for leave is binding
15
(even though a reasonable inference arises that she did not likely
16 contemplate a paycheck of zero dollars upon her return from medical
leave). This does not end the inquiry, however. Rather, it leads to
17
the question of whether recouping the payments all at once, leaving
18 an employee with no wages whatsoever, was lawful conduct by
CBRE.
19

20 I conclude that it was not. Recouping payments in this fashion has
been found to be “the one tool that is not available” to an employer:
21
“an employment agreement by which [it] requires its employees to
22 consent to unlawful deductions from their wages." Davis v. Farmers
Insurance Exchange, supra, 245 Cal.App.4th 1302, 1332, citing
23 Hudgins v. Neiman Marcus Group, Inc., 34 Cal.App.4th 1109, 1124
24 (1995; emphasis supplied).

25 The Division of Labor Standards Enforcement (DLSE) provides
26 some relevant guidance on the issue of whether Respondent's Policy
is lawful: employers may take deductions to recover debts owed
27 them, the DLSE opines, "provided that the amount of the deduction
28 from any one paycheck cannot exceed the amount authorized by the
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employee for any such deduction, and that after making any such
1
authorized deduction, the employee must still receive no less than the
2 minimum wage . . .” Davis v. Farmers Insurance Exchange, supra,
245 Cal.App.4th 1302, 1335, citing Department of Industrial
3
Relations, DLSE Opinion Letter No. 1999.0 9.22-1, p. 3 (September
4 22, 1999). It is clear that Ms. Woods received less than the minimum
wage, indeed no pay at all, for the pay period immediately after she
5
returned to work. See, Finding Number 11, supra, Column G, Row 1.
6 As the Policy was not written in such a way as to ensure that
employees in Claimant's position would receive a paycheck
7
amounting to at least the minimum wage in a given pay period, I
8 cannot conclude that it is lawful. It follows therefrom that
Claimant's prior agreement to permit collection in this manner was
9
void and unenforceable.
10 (Arbitration Ruling at 9:8-10:7 (Emphasis added).)
11

12 3. CBRE’s Deduction Policy Also Violates California Minimum Wage Law under
13 Labor Code § 1194.2.
14 As recited in the Arbitrator’s findings, once Plaintiff complained to CBRE about the illegal
15 deductions, CBRE attempted to avoid liability by subsequently refunding the wrongfully withheld
16 amounts. However, as the purpose of the relevant Labor Code provisions is precisely to ensure the
17 timely payment of wages, the Arbitrator found that CBRE’s late payments could not effectively
18 cure the minimum wage violation under Labor Code § 1194.2.
19
It is precisely this harm that the statute protects against. CBRE was
20 and is in a position to guard against this harm by implementing
appropriate policies – guaranteeing a minimum amount of pay during
21
any pay period in which arrears are being collected, for instance.
22 While CBRE’s efforts to correct the individual problems encountered
by Ms. Woods are praiseworthy, these efforts do not shelter CBRE
23
from the conclusion that its Policy violated the statute and that
24 Claimant, at least for one pay period, was harmed by that violation.
25 (Order at 11:14-12:2.) As a result, the Arbitrator found that the unlawful excess deduction
26 policy of CBRE violated the minimum wage law.
27 As the discussion above indicates, the operation of Respondent’s
28 Policy for collecting benefit contributions in arrears due to an
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employee’s non-pay leave status resulted in (1) excessive and
1
unlawful payroll deductions on one occasion, the pay period ending
2 December 28, 2013, and (2) the failure to pay Claimant the statutory
minimum wage arising from work she performed during that same
3
period. During that pay period, Ms. Woods worked a total of 63
4 hours entitling her to payment of $504.00 at the minimum wage rate
of eight dollars per hour. The failure was neither inadvertent nor (for
5
Ms. Woods) insignificant. Although she has since been made whole,
6 she remains entitled “to recover liquidated damages in an amount
equal to the wages unlawfully unpaid and interest thereon.” Cal.
7
Lab. Code § 1194.2(a). She is also entitled to reasonable attorneys
8 fees and costs of suit.

9 (Arbitration Order at p.16:14-23.). Thus, the Order concludes: “Claimant is awarded the sum of

10 $504.00 plus legal interest and may have her costs and attorney fees upon proper application.”

11 (Arbitration Order at ORDER ¶ 1, p. 17:5-7.) The Arbitrator “retains jurisdiction in this matter for

12 the sole purpose of ensuring enforcement of this Order.” (ORDER ¶ 3, p. 17:10-11.).

14 4. “CBRE, Inc.” is Properly Included as a Party to the Action under California’s

15 “Misnomer Rule” of Pleading Notwithstanding that the Employer May Have

16 Been Misnamed as “CBRE Group, Inc.”

17 CBRE argued before the arbitrator that it may not be liable under the FAC as it was

18 misidentified as “CBRE Group, Inc.” rather than “CBRE, Inc.” The Arbitrator addressed and

19 rejected this defense by finding that the California “misnomer rule” allows corrective amendment

20 of the Plaintiff’s Complaint so that she may proceed “as if she had named the correct party.”

22 PARTIES TO THE ARBITRATION
Although claimant has named the wrong party in this matter,
23 (CBRE Group, Inc. rather than CBRE, Inc.), the latter party has
24 appeared and defended both in the Superior Court and in these
arbitration proceedings, and no prejudice will arise from allowing
25 the Claimant to proceed as if she had named the correct party. The
26 cases cited by Claimant convincingly indicate that her mistaken
contention that “CBRE Group, Inc.” was her employer rather than
27 “CBRE, Inc.” falls under the “misnomer rule” that permits
28 corrective amendment under these circumstances. See Hawkins
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Pacific Coast Building, Inc., 124 Cal.App.4th 1497, 1503-04
1
(2004); Mayberry v. Coca Cola Bottling Co., 244 Cal.App.2d 350
2 (1966). The Arbitrator therefore deems the claim in arbitration to
be made against CBRE, Inc., the entity which is the responding
3
party here.
4
(Arbitration Order and Award at 7:5-14.)
5

6
III. CBRE’S PAGA LIABILITY IS ESTABLISHED BASED ON THE ARBITRATOR’S
7
FINDING OF LABOR CODE VIOLATIONS.
8

9 Liability for PAGA penalties is established by proving a violation of underlying Labor

10 Code provisions. As noted, the Arbitrator has already made a final and binding determination that

11 CBRE made excess deductions from wages in violation of Labor Code §§ 221, and 1194.2. As a

12 result, CBRE’s liability for PAGA penalties is established as a matter of law. Neither Section 221

13 nor Section 1194.2 provides a specified civil penalty. As a result, CBRE’s PAGA liability is

14 determined by Labor Code Section 2699(f), which provides:

15 (f) For all provisions of this code except those for which a civil penalty is
specifically provided, there is established a civil penalty for a violation of these
16
provisions, as follows: . . .
17
(2) If, at the time of the alleged violation, the person employs one or more
18 employees, the civil penalty is one hundred dollars ($100) for each aggrieved
19 employee per pay period for the initial violation and two hundred dollars ($200)
for each aggrieved employee per pay period for each subsequent violation.
20
Thus, as a matter of law, CBRE’s PAGA liability is $100-$200 for each Labor Code violation
21
found by the Arbitrator.
22

23
IV. THE FACTUAL AND LEGAL FINDING OF THE ARBITRATOR ESTABLISH
24
PLAINTIFF’S RIGHT TO ENJOIN CBRE FROM CONTINUING ITS UNLAWFUL
25
POLICY.
26
A. The Arbitrator’s Findings of Fact and Conclusions of Law Conclusively
27
Establish that Plaintiff is Entitled to Enjoin CBRE from Enforcing Its Illegal
28
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1 Deduction Policy.

2 The Arbitrator determined that CBRE maintained a “policy of recouping the payments all at

3 once, leaving an employee with no wages whatsoever in a pay period.” (Order at ***.) The

4 Arbitrator found that this policy results in unlawful deductions and sub-minimum wage payments

5 and that the “Policy applies across the board to all California employees of CBRE.” (Finding of

6 Fact No. 6.) (emphasis added).) Moreover, the Arbitrator found that:

7 As the Policy was not written in such a way as to ensure that
8 employees in Claimant’s position would receive a paycheck
amounting to at least the minimum wage in a given pay period, I
9 cannot conclude that it is lawful. It follows therefrom that
10 Claimant’s prior agreement to permit collection in this manner was
void and unenforceable.
11
***
12

13 It is precisely this harm that the [Labor Code § 221] guards
against. CBRE was and is in a position to guard against this harm
14 by implementing appropriate policies – guaranteeing a minimum
15 amount of pay during any pay period in which arrears are being
collected for instance.
16
(Arbitration Order and Award at 10:4-7; 12:21-23.)
17
The UCL confers broad powers to enjoin unlawful or unfair business practices. Precluding
18
the operation of an illegal policy is plainly a circumstance warranting UCL injunctive relief. 5
19
Here, as the Arbitrator’s findings establish, CBRE’s unlawful conduct does not stem from an
20
isolated or unintentional incident. Rather, CBRE’s unlawful conduct is due to the operation of a
21
consistent and deliberate policy. Under these circumstances the unlawful conduct is certain to
22
continue unless, as the Arbitrator also found, CBRE “guard(s) against this harm by implementing
23
appropriate policies.” Thus, based on the binding Arbitration findings, the Court should grant a
24
permanent injunction to the effect that:
25

26
5 Herr v. Nestle U.S.A., Inc. 109 CA4th 779, 789 (2003) (“injunctive relief under the UCL is an
27 appropriate remedy where a business has engaged in an unlawful practice of discriminating against
older workers.”); Robinson v. U-Haul Co. of California, 4 Cal. App. 5th 304, 316 (2016)
28 (Permanent Injunction proper to prohibit enforcement of illegal contracts).
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CBRE shall not make deduction for alleged unpaid benefit amounts, or
1
attempt to enforce any agreement by an employee to authorize such
2 deductions, unless CBRE also implements appropriate polices that
guarantee a legal minimum amount of pay pursuant to applicable
3
minimum wage provisions, during any pay period in which arrears are
4 being collected.

6 As explained below, according to the Arbitrator’s findings, authority to award this

7 injunction is outside the scope of the arbitration agreement and is thus solely for the court.

9 B. Plaintiff’s Claim for Public Injunction Relief Under The UCL is a Matter for

10 The Court to Decide.

11 1. The UCL Establishes a Non-Waivable Right to Obtain a so-called

12 “Public” Injunction for the Benefit of Others.

13 The UCL authorizes broad injunctive relief to “redress[] or prevent[] injury” occurring to “a

14 group of individuals similarly situated to the plaintiff,” or to the “general public.” 6 In particular,

15 UCL Section 17203, provides that:

16 Any person who engages, has engaged, or proposes to engage in unfair
17 competition may be enjoined in any court of competent jurisdiction. The
court may make such orders or judgments, including the appointment of a
18 receiver, as may be necessary to prevent the use or employment by any
19 person of any practice which constitutes unfair competition, as defined in
this chapter . . .
20
Such an injunction may be obtained by any “person who has suffered injury in fact and has
21
lost money or property as a result of the unfair competition.” (Id.) The UCL’s standing provision is
22
triggered at the time a plaintiff incurs any “identifiable trifle” such as “having a present or future
23
property interest diminished.” 7 Once this element of standing is established, a court may grant
24
injunctive relief for the sole purpose of “prevent[ing] further harm to the public at large rather than
25
to redress or prevent injury to a plaintiff.” 8
26

27 6 McGill v. Citibank, NA, 2 Cal.5th 945, 951 (2017).)
7 Ivanoff v. Bank of Am., NA, 9 Cal.App.5th 719, 732 (2017).
28 8 McGill, supra, 2 Cal.5th at 954.
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1 Furthermore, a UCL plaintiff is “filing the lawsuit or action on his or her own behalf,”

2 regardless of whether she “seeks, as one of the requested remedies, injunctive relief . . . to prohibit

3 and enjoin conduct that is injurious to the general public.” (Id. at 959.) A request for UCL

4 injunctive relief – regardless of its breadth – is thus not a “class” procedure which may be lawfully

5 waived under the FAA. 9

6 The Ninth Circuit has likewise confirmed that rule prohibiting waiver of a public injunctive

7 remedy is not preempted by the FAA.

8 The McGill rule, like the Iskanian rule, is a generally applicable contract
9 defense. The California Supreme Court specified that a waiver of public
injunctive relief in “any contract—even a contract that has no arbitration
10 provision”—is “unenforceable under California law.” McGill, 216
11 Cal.Rptr.3d 627, 393 P.3d at 94 (emphasis in original). The McGill rule
thus applies “equally to arbitration and non-arbitration
12 agreements.” Sakkab, 803 F.3d at 432. 10
13

14 Thus, as a matter of California law, Plaintiff’s right to seek public injunctive relief for the

15 benefit of others cannot be waived. Plaintiff must be permitted to seek such relief in either the

16 arbitration or judicial forum.

18 2. Plaintiff FAC Alleges a Non-Waivable Claims for Public Injunctive Relief

19 Under the UCL.

20 As the California Supreme Court held in McGill v. Citibank, NA, 2 Cal.5th 945, 951 (2017),

21 any purported waiver of Plaintiff’s right to seek UCL injunctive relief on behalf of the general

22 public – regardless of whether it is in the context of an arbitration agreement -- is “invalid and

23 unenforceable under California law.” (Id. at 961.)

24 Because allowing waivers of public injunctive relief would indisputably
and “seriously compromise the public purposes” that the UCL, CLRA, and
25
false advertising law were enacted to accomplish, McGill concluded that
26 any contract purporting to totally foreclose a party’s right to such relief—

27
9 Id.; accord
28 10 Blair v. Rent-A-Ctr., Inc., 928 F.3d 819, 827 (9th Cir. 2019).

Case Info

Judge

Ethan P. Schulman Track Judge’s New Case

Case No.

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Document Filed Date

February 10, 2020

Case Filing Date

February 18, 2014

County

Parties

CBRE GROUP, INC Defendant
CBRE GROUP, INC Respondent
DOES 1 TO 100, INCLUSIVE Defendant
MILLER, BARBARA J. Attorney
MILLER, BARBARA J. Attorney for the Defendant
VANVLECK, BRIAN F Attorney
VANVLECK, BRIAN F Attorney for the Appellant
VANVLECK, BRIAN F Attorney for the Plaintiff
WOODS, MELISSA Appellant
WOODS, MELISSA Plaintiff
Stuart Kluft Attorneys for Plaintiffs
Jennifer Bradford Attorneys for Defendants
Michelle Stocker Attorneys for Defendants
Kathryn Macisaac Attorneys for Plaintiffs
Christopher Taylor Attorney
Robert Hendricks Attorneys for Defendants
Alexis Gabrielson Attorney
Brian Fu Attorney
Barbara James Attorney

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Trial Materials: MELISSA WOODS VS. CBRE GROUP, INC et al

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