For years, California’s employers have suspected that the EEOC is not the neutral investigative agency it holds itself out to be. Through the process of dealing with recalcitrant advocates, err investigators, employers know all too well that often times the EEOC seems to be on a mission that is anything but a straight forward fact finding mission. The EEOC’s latest alleged actions further demonstrate that this Federal Governmental Agency may now have fully crossed the Maginot line into the land of openly being one of the many employee side plaintiff’s law firms that dot California’s golden shores.

Continue Reading The EEOC Is Now Officially An Employee Side Employment Law Firm

Labor & Employment attorney Beth West will speak at this SACTO workshop, which will equip you with the resources, tools, and knowledge you need to get your business ready for a healthier, more productive, and compliant workplace. Learn more about the recent changes and new timeline for Healthcare Reform as well as successful wellness programs that have been implemented across companies of all sizes in the Sacramento Region.

Date: August 27, 2013; 8:00-11:00 a.m.

Location:  24 Hour Fitness, 1020 7th Street, Sacramento, CA

For more information on this seminar and for details on how to register, please click here.

By:  Chelcey E. Lieber

In Estrada v. City of L.A. (Case No. B242202), the Court of Appeal of California (Second Appellate District) held that Estrada, formerly a volunteer Police Reserve Officer for the City of Los Angeles, was not an employee for purposes of the California Fair Employment and Housing Act (“FEHA”), even though the City deemed volunteer Police Reserve Officers to be “employees” for the limited purpose of extending them workers’ compensation benefits. The Court held that such benefits are not wages, but simply help make the volunteers whole should they be injured while performing their duties, similar to reimbursing volunteers for out-of-pocket expenses. Moreover, Estrada was never “appointed” to an employee position. Accordingly, the Court held that the trial court properly concluded that Estrada could not maintain a cause of action against the City for disability discrimination under FEHA. The Court’s full opinion can be found here.
 

Summary of Program

Unfortunately, both single-plaintiff and class-action wage and hour lawsuits continue to plague California employers. Often employers are sued because of technical violations that occur simply because the employer is unaware of its legal obligations. Come join the Labor and Employment Group at Weintraub Tobin as they discuss the “Ins and Outs” of wage and hour compliance for “non-exempt” employees – there’s more to it than merely paying overtime and providing meal periods.

Date:      August 8, 2013

Time:     9:30 a.m. – 11:30 a.m.

Location:  Weintraub Tobin, 400 Capitol Mall, 11th Floor, Sacramento, CA

For more information and to register for this seminar, please click here.
 

A central issue in all trade secret litigation is the adequacy of a plaintiff’s pre-discovery disclosure of the alleged trade secrets required by California Code of Civil Procedure section 2019.210.  Section 2019.210 provides that a plaintiff suing for misappropriation of trade secrets must identify the alleged trade secrets with “reasonable particularity” before commencing discovery.  The disclosure requirements of section 2019.210 can also be a valuable tool for a successful defendant seeking attorneys’ fees under the California Uniform Trade Secrets Act (“CUTSA”) for trade secret misappropriation claims brought in “bad faith.”  California Civil Code section 3426.4 authorizes the trial court to award attorneys’ fees as a deterrent to specious trade secret claims.  (FLIR Systems, Inc. v. Parrish (2009) 174 Cal.App.4th 1270, 1275.)  Compelling a plaintiff to disclose the alleged trade secrets with “reasonable particularity” can be the first step in proving “bad faith.”

The purpose of section 2019.210 has been outlined in Advanced Modular Sputtering, Inc. v. Superior Court (2005) 132 Cal.App.4th 826.  (See also, Perlan Therapeutics v. Superior Court (2009) 178 Cal.App.4th 1333.)  These four purposes include:  (1) promoting well-investigated claims and discouraging the filing of meritless trade secret complaints; (2) preventing plaintiffs from abusing the discovery process to learn about defendants’ trade secrets; (3) framing the issues in order to place reasonable limitations on discovery from defendants; and (4) allowing defendants to formulate well-reasoned defenses and not have to wait until the eve of trial.  (Advanced Modular, supra, 132 Cal.App.4th at 833-34.

The Perlan court analyzed what has been described as the “’ubiquitous’ problems of litigating the appropriate scope and timing of trade secret identification.”  (Id. at 1344.)  Plaintiffs rarely provide detailed descriptions of the alleged trade secrets without a court order.  They do so for numerous reasons, some more legitimate than others.  Plaintiffs do not want to be tied down early in the litigation in the hope of amending or refining their contentions as the litigation and discovery progress.  Plaintiffs also have the legitimate concern that, in the event defendants did not successfully misappropriate all their trade secrets, a detailed description in the section 2019.210 statement might somehow be leaked to the public, thereby depriving plaintiffs of the economic value of the trade secret.  Conversely, defendants are legitimately interested in tying a plaintiff down early in the litigation for numerous reasons – the first of which was acknowledged by the Court in Advanced Sputtering:  “[to promote] well-investigated claims and discourage the filing of meritless trade secret complaints.”  (Id. at 833-34.)

A defendant must establish that a plaintiff brought a trade secret misappropriation claim in “bad faith” to obtain an award of attorneys’ fees.  The courts have determined that “bad faith” consists of both “objective speciousness of the plaintiff’s claim . . . and . . . subjective bad faith in bringing or maintaining the claim.”  (Gemini Aluminum Corp. v California Custom Shapes, Inc. (2002) 95 Cal.App.4th 1249, 1262; see, also, FLIR Systems, supra, 174 Cal.App.4th at 1275.)

The disclosure requirements of section 2019.210 help define whether there was any merit to the claim.  “Objective speciousness exists where the action superficially appears to have merit but there is a complete lack of evidence to support the claim.”  (FLIR Systems, supra, 174 Cal.App.4th at 1276.)  The standards of Code of Civil Procedure section 128.7, subdivision (b) do not apply.  Section 128.7, subdivision (b) does not allow sanctions if the plaintiff can establish that, at the time of filing the complaint, there was a belief the allegations would have evidentiary support after a reasonable opportunity to conduct discovery.  That is not the definition of “bad faith” under CUTSA.

Accordingly, the plaintiff, to avoid a finding of “bad faith” under CUTSA, must point to some evidence of trade secret misappropriation.  It is simply not sufficient to show that the plaintiff believed that, at the time of filing the complaint, discovery would uncover some evidence of misappropriation.  The initial disclosures under section 2019.210 help define the alleged secrets to which evidence of misappropriation must pertain.