Akaosugi et al v. Benihana, Inc., No. 3:2011cv01272 - Document 253 (N.D. Cal. 2012)

Court Description: MEMORANDUM AND OPINION RE HOLDING DEFENDANT EMPLOYER TO LAW ARGUED IN OPPOSITION TO CLASS CERTIFICATION. Signed by Judge Alsup on 10/16/12. (whalc2, COURT STAFF) (Filed on 10/16/2012)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 11 For the Northern District of California United States District Court 10 TETSUO AKAOSUGI, HIEU NGUYEN, and RINKO DONAHUE, Plaintiffs, 12 13 14 15 16 17 No. C 11-1272 WHA MEMORANDUM OPINION RE HOLDING DEFENDANT EMPLOYER TO LAW ARGUED IN OPPOSITION TO CLASS CERTIFICATION v. BENIHANA, INC., dba BENIHANA NATIONAL CORPORATION, Defendant. / This memorandum opinion addresses an attempt to have it both ways. In this action for 18 overtime wages and meal-and-rest break benefits, plaintiffs moved to certify a class of allegedly 19 misclassified manager employees. In opposition, defendant argued that class certification should 20 be denied, in part because a week-by-week analysis would be required. Specifically, 21 defendant argued that, under California law regarding exemptions from overtime wage 22 requirements, [t]he primarily engaged prong requires a week-by-week analysis of how each 23 employee spent his or her time (Dkt. No. 94 at 10). Defendant cited a decision of our federal 24 court of appeals, which stated that California courts have construed this requirement to mean that 25 the employees spend over half their time on managerial tasks in any given workweek. Marlo 26 v. UPS, Inc., 639 F.3d 942, 948 (9th Cir. 2011) (citing Dunbar v. Albertson s, Inc., 141 Cal. 27 App. 4th 1422, 1426 (2006)). Relying in part upon defendant s representation regarding the 28 difficulty in atomization of proof, class certification was denied. The order denying certification specifically cited the proposition of law set forth in defendant s brief, stating that the primarily engaged element has been applied to require that managers spend over half of their time on 1 exempt tasks in any given workweek. Akaosugi v. Benihana Nat l. Corp., 282 F.R.D. 241, 2 250 (N.D. Cal. 2012) (citing Dunbar, 141 Cal.App.4th at 1426). 3 Plaintiffs then proceeded to trial without a class. Now that we are in trial, and now that 4 defendant has the burden of proof as to an exemption, defense counsel are taking the exact 5 opposite position, arguing that a week-by-week analysis is not required. 6 Judicial estoppel, sometimes also known as the doctrine of preclusion of inconsistent a second advantage by taking an incompatible position. Whaley v. Belleque, 520 F.3d 997, 9 1002 (9th Cir. 2008). It is an equitable doctrine invoked by a court at its discretion . . . and is 10 intended to protect the integrity of the judicial process by preventing a litigant from playing fast 11 For the Northern District of California positions, precludes a party from gaining an advantage by taking one position, and then seeking 8 United States District Court 7 and loose with the courts. In re Hoopai, 581 F.3d 1090, 1097 (9th Cir. 2009) (internal citations 12 and quotations omitted). Factors to consider include: (1) whether a party s later position is 13 clearly inconsistent with its original position; (2) whether the party has successfully persuaded 14 the court of the earlier position, and (3) whether allowing the inconsistent position would allow 15 the party to derive an unfair advantage or impose an unfair detriment on the opposing party. 16 Ibid. 17 Defense counsel now argues that it is impractical to try the individual cases on a week- 18 by-week basis, a point of some significance given that Benihana admits that it has the burden of 19 proof on whether an exemption applied. Be that as it may, defendant earlier argued a week-by- 20 week analysis was required. Plaintiffs seek to hold defendant to its representation that a week- 21 by-week analysis is necessary to meet defendant s burden of proof. This order agrees that 22 defendant is estopped from attempting to have it both ways. There is no plausible way to explain 23 away the earlier representation. The Court will provide an instruction to the jury using the exact 24 language relied upon in its prior order denying class certification, namely the any given 25 workweek test previously urged by the defense and expressly adopted by the order denying 26 class certification. Although the Court will not yet instruct the jury that a week-by-week 27 analysis is required in this case, plaintiffs are not precluded from so arguing to the jury. 28 Defendant may, of course, present its own arguments on the record before the jury. Given 2 defendant s prior position, however, defendant may not now escape a jury instruction that 1 defendant must prove that plaintiffs spent over half of their time on exempt managerial tasks in 2 any given work week. This order adds that the just-quoted language is in accordance with the 3 law in our circuit, as shown above. 4 5 IT IS SO ORDERED. 6 7 Dated: October 16, 2012. 8 WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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