Author Archives: gsauer

by Sonya Goodwin

I was talking to a colleague recently, and he told me that he was surprised to receive a request by a mediator for a pre-mediation call on an upcoming mediation. I was just as shocked as he was, but my astonishment was because he then revealed that, in over 40 years of litigating, he had never had a pre-mediation call with a mediator. As an attorney, I always appreciated pre-mediation calls because I felt that it showed that the mediator was truly invested in resolving my case. Now, as a mediator, I always offer pre-mediation calls with the attorneys on both sides. Here are just a few reasons why pre-mediation calls are beneficial:

• It allows the attorney to inform the mediator of the dynamics of the parties and the attorneys, which then allows the mediator to start the mediation with the appropriate tone.
• If briefs are provided before the call, it allows the mediator to ask follow-up questions and request additional evidence that might be helpful to resolve the case at the mediation.
• It allows the attorney to tell the mediator about any issues that the attorney might not want to discuss in front of the client, or inform the mediator of sensitive subjects to be aware of – this is particularly true in highly emotional employment matters.
• It allows the attorney to emphasize what the mediator should not disclose to the other side during the mediation.
• It allows the attorney to express possible hurdles to settlement (e.g., party relations, procedural posture, factual context, etc.).
• It allows the mediator to determine what information has been shared with the other side and, particularly in PAGA and class action mediations, encourage the parties to share information that might impact the valuation of the case.
• In multi-party mediations, it allows the mediator to ask the attorneys how they want to proceed during the mediation (e.g., co-defendants or co-plaintiffs in separate rooms, global offers/demands vs. separate for each party, etc.).
• It allows the attorney and mediator to build a rapport before the mediation, especially if the mediator and attorney have not previously worked together, which may help the client build trust in the mediator. 
• It allows the mediator to discuss defense counsel’s relationship with insurance carriers and any issues regarding insurance that might play a role in settling the case.

Of course, pre-mediation calls are voluntary. However, I encourage every attorney to take advantage of this highly useful tool when it is offered. 

Do you need to mediate an employment dispute? For information regarding mediation availability, contact Candace Yang at cyang@swattys.com. 

by Sonya Goodwin

Read Sonya Goodwin’s recent article that was published on Law360 about California employers’ obligations to reimburse employees for necessary business expenses when they work remotely. As discussed in the article, this obligation was reiterated in a recent California Court of Appeal decision, Thai v. International Business Machines Corp., which was brought by an employee who was required to work remotely during the COVID-19 pandemic and was not reimbursed by his employer for the necessary costs associated with having to work from home.

Sonya mediates and litigates a wide range of employment disputes including issues related to unreimbursed business expenses. For information regarding mediation availability, contact Candace Yang at cyang@swattys.com. For more information regarding litigation, contact Sonya at sgoodwin@swattys.com.

Click here to read the full article.

by Sonya Goodwin

Earlier this week, the California Supreme Court issued its much-anticipated decision in Adolph v. Uber Technologies, Inc. In a victory for plaintiffs, the Court held that a plaintiff whose individual Private Attorneys General Act (“PAGA”) claims are compelled to arbitration still has standing to pursue representative PAGA claims in court. 

The fight to send PAGA claims to arbitration has a long history – too long for this summary – but the procedural history of Adolph and the intervening U.S. Supreme Court decision in Viking River Cruises is worth noting here. 

In Adolph, the plaintiff, Erik Adolph, signed an arbitration agreement containing a PAGA waiver, which provided that Adolph would not “bring a representative action on behalf of others under [PAGA] in any court or in arbitration.” After Adolph filed a class action complaint alleging wage and hour claims stemming from his alleged misclassification as an independent contractor, Defendant Uber Technologies, Inc. successfully moved to compel arbitration. Adolph then filed an amended complaint alleging only PAGA claims. Uber filed another motion to compel arbitration on the grounds that Adolph was required to pursue his individual PAGA claims in arbitration. The trial court denied Uber’s motion and, in April 2022, the appellate court upheld that decision on the grounds that PAGA claims were not subject to arbitration and could not be waived under California law.

Just two months later, in June 2022, the U.S. Supreme Court held in Viking River Cruises, Inc. v. Moriana, that, under the Federal Arbitration Act, PAGA claims can be divided into individual claims and representative claims (contrary to what California courts had ruled in the past). Therefore, under a valid arbitration agreement, SCOTUS held a plaintiff’s individual PAGA claims can be compelled to arbitration and, if that happens, a plaintiff would then lack statutory standing to pursue representative claims in court. In a concurring opinion, Justice Sotomayor predicted that California courts would “have the last word” on the standing issue.

One month later, in Adolph, the California Supreme Court took up the issue of whether a plaintiff who has been compelled to arbitrate their individual claims under PAGA maintains statutory standing to pursue representative PAGA claims in court. On July 17, the Court answered in the affirmative: “where a plaintiff has filed a PAGA action comprised of individual and non-individual claims, an order compelling arbitration of individual claims does not strip the plaintiff of standing to litigate non-individual claims in court.” The Court reiterated that there are only two requirements for PAGA standing: the plaintiff must have (1) been employed by the alleged violator, and (2) suffered from one or more Labor Code violations.

Interestingly, the Court suggested that trial courts should stay representative PAGA claims while the individual PAGA claim is being arbitrated. If the arbitrator determines that the named plaintiff is not an aggrieved employee, the named plaintiff will lack standing to pursue any representative PAGA claims in court. But if the arbitrator finds a single Labor Code violation, the decision will cement the named plaintiff’s standing to pursue the representative claims.

What Does it Mean for Employees and Employers?

The most significant takeaway for litigants on both sides of the “v” is that employers cannot use arbitration agreements to avoid representative PAGA actions. But Adolph does not remove every tool from the employer’s toolkit. An employer who believes a plaintiff’s PAGA claim lacks merit can avoid broad PAGA discovery by defeating the individual claim in arbitration. This strategy is not without risk, however. If the employee can prove a single Labor Code violation, the employer will still face the representative action in court in addition to the expense of defending the individual claim in arbitration. Employers should think carefully about the merits of a plaintiff’s allegations before moving to compel a PAGA claim to arbitration. 

by Sonya Goodwin

If you ask an employment mediator how many in-person mediations they have conducted since March 2020, chances are they can count the number on two hands. In fact, until recently, all of my mediations since the start of the pandemic had taken place over Zoom. I, like many other attorneys and mediators, had learned through experience that Zoom mediations can be just as effective as in-person mediations. But now that I have conducted several mediations in person at the parties’ request, I have a newfound appreciation for the power of an in-person mediation in certain cases. The benefits are not confined to the tasty snacks and free lunch:

• If your opponent requests an in-person mediation, it’s a good bet they will be more comfortable in person, and a more comfortable opponent often translates to a more effective and successful mediation;
• In-person mediations facilitate more face-to-face interactions, which, for some individuals, may make it easier to build trust in the mediator and the mediation process;
• While screen sharing is an option, some evidence is easier to review and more impactful when it is presented physically;
• In-person mediations present fewer opportunities for distraction, often leading to more focused participants and more thoughtful positions;
• Your opponent may be less likely to walk out of the mediation early if he or she has invested time and money to get there; and
• Body language is easier to read in-person.

That said, the advantages of mediating via Zoom are undeniable: 

• Some individuals (parties and attorneys) are more comfortable mediating from their homes and offices, which, as noted above, can make a mediation more effective;
• Zoom mediation makes it easy for parties to participate from anywhere, which not only reduces travel and lodging expenses, but also makes it easier to schedule the mediation; and 
• Full-day mediations involve a fair amount of downtime for each party while the mediator is spending time in the other “room”; virtual mediations may make it easier to get other tasks done during the downtime.

So which is right for your case? Before scheduling your next mediation, keep these considerations in mind when deciding which format best suits your case, client, and opponent. You may be surprised at the answer. 

If you would like to schedule an in-person or virtual mediation with me, please contact Candace Yang at cyang@swattys.com.  

by Gerald Sauer

For the third time in our history, Sauer & Wagner LLP was featured in a law firm profile appearing in the Los Angeles Daily Journal.   

The article highlights the addition of Sonya Goodwin, a specialist in employment law, to our firm a few years ago.  Ms. Goodwin provides counseling on all types of employment matters and also offers private in-person and virtual mediations.     

Our practice has remained the same over the past 25 years. We are a litigation boutique that provides pre-trial, trial and appellate representation to our clients in business, entertainment, intellectual property, real estate and employment matters.

Feel free to contact Gerald Sauer (310-712-8102), Robert Chapman (310-712-8111), Gregory Barchie (310-712-8113), Amir Torkamani (310-712-8105), or Sonya Goodwin (310-712-8110) directly for any inquiries.

Click here to read the full article.