[00:00:10] Speaker 01:
Good morning, I have asked to reserve five minutes for rebuttal.

[00:00:14] Speaker 00:
May I please watch the clock?

[00:00:17] Speaker 01:
I'm sorry, Your Honor.

[00:00:18] Speaker 00:
Please watch the clock.

[00:00:19] Speaker 01:
Oh, thank you, Your Honor.

[00:00:21] Speaker 01:
May it please the Court, my name is Robert King and I represent Appellant Ryan Loecker.

[00:00:25] Speaker 01:
I'd like to start with the issue of the statute of limitations on the 1102.5 claim and then discuss the issues relating to summary judgment and the evidentiary rulings.

[00:00:38] Speaker 01:
No published California case has ever held that the availability of a penalty serves to reduce the statute of limitations on an underlying claim for actual damages.

[00:00:50] Speaker 01:
In fact, every California court that has considered that issue in a published decision has found that claims for penalty are severable from claims for actual damages and that they're subject to different statutes of limitation.

[00:01:02] Speaker 01:
That's what the California Court of Appeals held in GHII.

[00:01:06] Speaker 01:
where mandatory trouble damages were barred but actual damages were not.

[00:01:11] Speaker 03:
Can I ask just a practical question because your client won a jury trial, right, so he got damages.

[00:01:19] Speaker 03:
This wouldn't affect anything about the damages because those are coverage.

[00:01:23] Speaker 03:
This is really a question about attorney's fees.

[00:01:25] Speaker 03:
Is that the way I understand it?

[00:01:27] Speaker 01:
That is correct, Your Honor.

[00:01:29] Speaker 03:
Okay.

[00:01:30] Speaker 02:
So there's no additional damages that would be allocated to this claim that wouldn't be allocated to the claim that did go forward and got a jury?

[00:01:37] Speaker 01:
That's correct, Your Honor.

[00:01:38] Speaker 01:
It is our position that the Tammany claim completely overlaps.

[00:01:41] Speaker 02:
And the claim that you won on doesn't have, doesn't allow for attorney's fees, but this one would?

[00:01:48] Speaker 01:
That's correct, Your Honor.

[00:01:54] Speaker 00:
In essence where there are two claims those claims are considered to be separate for purposes of the statute of limitations and there's just a follow-up on that question would it have to be remanded if we agreed with you for a new trial on the Damages statutory damages claim

[00:02:15] Speaker 01:
I don't believe so, Your Honor.

[00:02:17] Speaker 01:
It is, again, our position that the Tammany claim, which has, frankly, a lower burden on the plaintiff, or a higher burden on the plaintiff, excuse me, would be res judicata as to the 1102.5 claim and that... Is there any case that supports that interpretation?

[00:02:37] Speaker 01:
There is not, Your Honor, but simply looking at the causes of action for a Tammany claim for wrongful termination, the plaintiff needs to prove by preponderance that the

[00:02:49] Speaker 01:
violated a fundamental public policy.

[00:02:51] Speaker 01:
Here that fundamental public policy was 1102.5 somewhat ironically.

[00:02:57] Speaker 02:
And then, you know... So that argument you would make to the district court, if we remanded and, you know, agreed with you on this issue, you'd make that argument to district court and try to get like a summary judgment ruling on it based on race judicata and then you'd ask for attorney's fees if you got summary judgment.

[00:03:16] Speaker 02:
But if the district court disagreed with you on that, then there would be a trial on this other claim.

[00:03:21] Speaker 02:
That's correct, Your Honor.

[00:03:22] Speaker 02:
Maybe you'd end up with what you felt like were inconsistent results if that trial came out a different way.

[00:03:26] Speaker 01:
That's correct, Your Honor, and that's why we have asked the court to address some of the evidentiary rulings that we believe were in error below in the case that the district court disagrees with us and that there is the necessity for another trial.

[00:03:40] Speaker 03:
So you think that we need to address those evidentiary rulings regardless of how we come down on the first claim?

[00:03:50] Speaker 01:
I suppose that if you were to affirm the district court on the 1102.5 claim, there would be no need for, there would be no conceivable need for a new trial and you wouldn't need to address the evidentiary issues but if you agree with us.

[00:04:04] Speaker 02:
What if we agree with you on the first issue?

[00:04:06] Speaker 02:
Is there could we send those issues back to district court?

[00:04:10] Speaker 02:
I suppose they're already decided from the district court's perspective the evidentiary ruling Is there any chance that the court would reconsider that and I mean should we let the court is there any reason we shall have the district court?

[00:04:21] Speaker 02:
Address that in the first instance if this one claim can go forward I think from

[00:04:26] Speaker 01:
I can't speak for the district court, obviously, Your Honor.

[00:04:29] Speaker 01:
I imagine the district court would be disinclined absent guidance from this panel to reconsider those rulings in a new trial because of the basically perfect overlap between the claims.

[00:04:39] Speaker 01:
I don't think that the addition of the 1102.5 claim meaningfully impacts the court's analysis.

[00:04:45] Speaker 02:
It doesn't change the analysis that the district court did in refusing that evidence, okay?

[00:04:51] Speaker 02:
Correct, Your Honor.

[00:04:55] Speaker 01:
So, you know, I think just to sort of try to address the district, the various district court claims that, or cases that have come out on this issue, there seems to be a lot of confusion about the mandatory language that comes out of Jensen and the other cases finding that section 340 applies.

[00:05:12] Speaker 01:
And I think it's important to note that that language simply, whether a

[00:05:17] Speaker 01:
claim for penalties is mandatory versus discretionary.

[00:05:20] Speaker 01:
That language comes out of an analysis about whether 340 applies to the claim for penalties itself.

[00:05:27] Speaker 01:
In Jensen, the consideration was whether the double damages provision of the Song-Beverly Act would be governed by one year or four year statute of limitations.

[00:05:37] Speaker 01:
There was, in fact, no question as to whether the underlying claim for damages would be subject to a more limited statute of limitations in the event that the penalties were applied.

[00:05:48] Speaker 01:
So I think the mandatory language really looks at whether 340 applies at all to the claim for penalties.

[00:05:55] Speaker 01:
And it doesn't answer the separate question of whether the claim for damages and the claim for penalties are severable.

[00:06:01] Speaker 01:
And as I say, every court to consider that issue has found that they're severable.

[00:06:04] Speaker 01:
And I think that that through line is found in the more well-reasoned district court opinions that address this issue, like Ayala, where the court recognizes that there are distinct claims, one under

[00:06:17] Speaker 01:
1102.5 or 1105 depending on how you slice that and then that there's a distinct claim for penalties under 1102.5 section F and that they're distinct claims subject to distinct statutes of limitation.

[00:06:32] Speaker 02:
Can I ask you a question because I know you want to reserve five minutes but going back to the evidentiary, I'm trying to figure out if we do address the evidentiary claims

[00:06:43] Speaker 02:
As I recall, Walmart's one of their key arguments on the merits of why the evidentiary ruling was correct is that Walmart had stipulated to that element and so that the evidence would have gone to and so the evidence was unnecessary because they had stipulated to it.

[00:07:00] Speaker 02:
Assuming that we agree with that with regard to the claim that Walmart already lost on, that you won on,

[00:07:08] Speaker 02:
Would that carry over to, I haven't thought through how that would carry over to the claim that we would be sending back if we sent it back.

[00:07:18] Speaker 02:
Would Walmart have also stipulated that element with regard to that claim?

[00:07:22] Speaker 01:
Yes.

[00:07:22] Speaker 01:
I apologize, Your Honor.

[00:07:24] Speaker 01:
In fact, Walmart didn't end up stipulating to the element because the element that they offered to stipulate to was an element of 1102.5 and not necessarily an element of the Tammany claim.

[00:07:35] Speaker 01:
They offered to stipulate to his reasonable belief

[00:07:38] Speaker 01:
in the illegal conduct.

[00:07:40] Speaker 02:
I'm sorry, I'm not tracking the numbers because I'm not conversing with Kevlar.

[00:07:44] Speaker 02:
Yes, of course.

[00:07:45] Speaker 02:
You're saying it is an element, what they stipulated to is actually an element of this claim that we would, that you're asking us to send to reverse the district court on and send back that the district court said was barred by a statute of limitations.

[00:07:57] Speaker 01:
That's correct, Jerome.

[00:07:58] Speaker 01:
Okay.

[00:07:59] Speaker 02:
And with respect to the... So why, can you respond to Wal-Mart's argument as to why

[00:08:04] Speaker 02:
that doesn't, why you need to make that evidentiary showing if they've already stipulated to that?

[00:08:10] Speaker 01:
Yes.

[00:08:10] Speaker 01:
First, Your Honor, there is authority that we don't need to accept a stipulation in lieu of presenting evidence.

[00:08:15] Speaker 01:
Evidence is inherently more powerful to a jury than a stipulation.

[00:08:19] Speaker 02:
But more importantly... And how does that play into the weighing of whether it be prejudicial?

[00:08:25] Speaker 02:
Because you can imagine a judge saying, well, yeah, they have to, I'm going to let this in because they have to prove this.

[00:08:30] Speaker 02:
I understand it will be

[00:08:31] Speaker 02:
that it could have some prejudice, but in the balancing that makes sense.

[00:08:34] Speaker 02:
But as soon as you no longer actually need it to make your case because they stipulated to it, then all of a sudden maybe the balance changes to where the prejudicial aspect of it in theory could outweigh.

[00:08:44] Speaker 01:
So how does that play out?

[00:08:48] Speaker 01:
The evidence goes to more than one of the issues.

[00:08:51] Speaker 01:
In fact, Walmart refused to stipulate due causation, right?

[00:08:54] Speaker 01:
And Walmart has advanced a defense that Mr. Loker's manager, Cynthia Newland, fired him for attendance points.

[00:09:02] Speaker 01:
And that Mr. Barry, the store manager, accepted Ms.

[00:09:07] Speaker 01:
Newland's recommendation to fire him for attendance points.

[00:09:10] Speaker 01:
The evidence about the cold chain violations themselves

[00:09:14] Speaker 01:
seriously impacts the credibility of both of those managers, specifically Ms.

[00:09:18] Speaker 01:
Newland.

[00:09:19] Speaker 01:
Ms.

[00:09:19] Speaker 01:
Newland testified in her deposition and a trial that there were no cold chain violations.

[00:09:25] Speaker 01:
She never saw any cold chain violations.

[00:09:28] Speaker 01:
Neither Mr. Loker nor anyone else ever complained of cold chain violations.

[00:09:33] Speaker 01:
That is

[00:09:34] Speaker 01:
contradicted by numerous third-party witnesses by Mr. Loker's complaint itself and by other witnesses that testified or at least offered to testify that there were cold chain violations.

[00:09:48] Speaker 01:
Ms.

[00:09:48] Speaker 01:
Newland saw them.

[00:09:49] Speaker 01:
She was aware of them.

[00:09:51] Speaker 01:
She knew of their complaints.

[00:09:53] Speaker 01:
They heard Ryan complaining.

[00:09:54] Speaker 01:
And they, in at least one case, complained themselves and were subsequently retaliated against.

[00:10:01] Speaker 02:
I'll get real close to your five minutes.

[00:10:02] Speaker 02:
Can I ask you one follow-up to that?

[00:10:03] Speaker 02:
If we assume that that was true, that his, I think, I forget the names, but his immediate supervisor was aware of these things.

[00:10:17] Speaker 02:
But we also assume for a second, I'm not saying you agree with this, but assume for a second that the person that actually fired him was the store manager, I think, that he did not.

[00:10:25] Speaker 02:
So we accept his affidavit and Walmart's arguments on that.

[00:10:30] Speaker 02:
Is that evidence still relevant for the second thing that you're talking about?

[00:10:34] Speaker 02:
Why does it matter?

[00:10:36] Speaker 01:
Yes, your honor, because at that point we would need to proceed on the cat's paw theory and Miss Newland's credibility.

[00:10:41] Speaker 01:
In fact, whether she recommended his termination because of retaliation or because of his accrual of points is the central issue in the case.

[00:10:50] Speaker 01:
And Miss Newland's credibility is obviously key to that issue.

[00:10:54] Speaker 01:
And so the fact that Miss Newland lied about

[00:10:56] Speaker 01:
The very thing that Mr. Loker was complaining about suggests that she was not being truthful when she says, I didn't know about this thing.

[00:11:05] Speaker 01:
In fact, I fired him for an accrual of points.

[00:11:20] Speaker 04:
Good morning, your honors.

[00:11:21] Speaker 04:
May it please the court, Kyn Hudson for Walmart.

[00:11:25] Speaker 04:
On the limitations issue, I'd like to begin as the California Supreme Court has instructed with the statutory text.

[00:11:34] Speaker 04:
California Code of Civil Procedure, Section 340A, provides that a one-year limitations period applies to any, quote, action upon a statute for a penalty

[00:11:47] Speaker 02:
forfeiture so I so you know the same arguments you made in your brief and You know I like I like textual arguments But we're also in the Ninth Circuit which has California and we're dealing with California law so at the end of the day I Don't the struggle is a maybe if we were writing on a blank sheet of paper.

[00:12:06] Speaker 02:
We would agree with you although I

[00:12:08] Speaker 02:
There are some challenges that you have with the enactment history.

[00:12:11] Speaker 02:
It doesn't make sense to me that you have something that has a three-year statute.

[00:12:15] Speaker 02:
You add something that obviously the legislature is trying to make this regime stronger and that they just like implicitly shortened it, everything to one year.

[00:12:26] Speaker 02:
But the problem is you, I think they're right that you don't, we have cases not exactly for this statute as I understand it but we have but all of the cases from the intermediate court of appeals

[00:12:37] Speaker 02:
say that basically when you have both types of claims in one statute that you look at them differently, treat them as separate claims or sever them, whatever language you want to use.

[00:12:48] Speaker 02:
So you're up against that and I just don't know that your textual arguments that you ably made in your brief can overcome the only evidence we have of what we think the California courts would do.

[00:13:01] Speaker 02:
So what do we do with that?

[00:13:03] Speaker 04:
Yes, Your Honor, I'd like to address both of those points.

[00:13:06] Speaker 04:
publishing your meat appellate court decisions and the legislative history.

[00:13:08] Speaker 04:
I'll do that in turn.

[00:13:09] Speaker 04:
So starting with the... Call it enactment history.

[00:13:12] Speaker 02:
Enactment history.

[00:13:12] Speaker 02:
Because it really has to do... No, agreed.

[00:13:13] Speaker 02:
It really has to do more, I think, with knowing what was in place before.

[00:13:17] Speaker 02:
Agreed.

[00:13:18] Speaker 02:
And it's not looking at what the legislatures were thinking, but what was in place before and what got passed.

[00:13:23] Speaker 02:
Yes, agreed.

[00:13:24] Speaker 04:
So maybe that's easier.

[00:13:26] Speaker 04:
So I'll start with that.

[00:13:27] Speaker 04:
So I don't disagree with the amici's recitation of the statutory history, the history of the enactment.

[00:13:35] Speaker 04:
The critical point is it's irrelevant because the language that this court is being asked to interpret is not the language of 1102.5.

[00:13:42] Speaker 04:
The language that this court's being asked to interpret is the language of Section 340, which has been in place since the early 20th century and hasn't changed.

[00:13:50] Speaker 04:
And the Section 340 has been interpreted in essentially three different ways.

[00:13:57] Speaker 04:
And I promise I'll get to those intermediate appellate court decisions.

[00:14:00] Speaker 04:
But first, some courts have said,

[00:14:04] Speaker 04:
if an action is subject to the one-year limitations period if it is brought under a statute that provides for mandatory penalties regardless of what relief is sought.

[00:14:13] Speaker 04:
That's option number one.

[00:14:15] Speaker 04:
Number two, other courts have said the one-year limitations period applies if a penalty is sought even if other remedies are also sought.

[00:14:25] Speaker 04:
That's option number two.

[00:14:26] Speaker 04:
Walmart wins under either of the first two theories.

[00:14:28] Speaker 04:
And then the third approach is some courts have said

[00:14:32] Speaker 04:
The one-year limitations period applies to a specific form of relief penalties, and then it doesn't apply to other forms of relief, even if they are brought under the same cause of action.

[00:14:42] Speaker 04:
So those are the three approaches.

[00:14:44] Speaker 04:
And so that's number one.

[00:14:46] Speaker 04:
So I think whatever Section 340 means, which of those three interpretations, it means always.

[00:14:53] Speaker 04:
It can't possibly have a different meaning depending on which organic substantive statute is in view.

[00:14:58] Speaker 04:
That wouldn't make any sense.

[00:14:59] Speaker 04:
So for that reason, I don't think

[00:15:01] Speaker 04:
statutory history of 1102.5 applies.

[00:15:04] Speaker 04:
And also, I think if you adopt the second view, which means that the one-year limitations period applies only if a penalty is sought, that's not inconsistent with the legislature's view because no plaintiff is worse off with the statutory amendment because they can always avoid the one-year limitations period by simply not seeking penalties.

[00:15:23] Speaker 04:
So again, that adequately addresses the statutory history that's articulated in the amicus brief.

[00:15:29] Speaker 04:
So turning to

[00:15:30] Speaker 04:
the published Intermediate Appellate Court decisions.

[00:15:33] Speaker 04:
You're right, Your Honor, there are three published Intermediate Appellate Court decisions, GHII, Menefee, and Hypertouch, and they do, I will candidly admit, they do adopt a version of plaintiff's approach.

[00:15:49] Speaker 04:
There are two, a couple critical important things.

[00:15:52] Speaker 04:
One...

[00:15:54] Speaker 04:
where you were explaining the third one.

[00:15:56] Speaker 04:
Yes, exactly.

[00:15:56] Speaker 04:
They adopt the third one, but there is a twist on the third one, which is very important.

[00:16:01] Speaker 04:
Each of those three decisions say you can adopt this approach if the remedies are contained in separate provisions.

[00:16:17] Speaker 04:
So they look very carefully at the structure of the statute to ensure that they are contained in separate provisions.

[00:16:23] Speaker 04:
And indeed, in Menefee,

[00:16:24] Speaker 02:
Okay, so you're saying it like they say that.

[00:16:28] Speaker 02:
As I recall, and it's been a while since I reviewed that detail, but I recall that was your argument.

[00:16:34] Speaker 02:
I don't remember that they actually said that, that the decisions actually said that.

[00:16:40] Speaker 02:
That was your way of distinguishing them.

[00:16:42] Speaker 04:
Yes, so GHII says different limitations period applied to different remedies, quote, where the different remedies are authorized by separate independent statutory provisions.

[00:16:51] Speaker 04:
Separate independent statutory provisions is the language they use.

[00:16:54] Speaker 00:
Opposing counsel looks at California Labor Code section 1105 as interpreted by

[00:17:02] Speaker 00:
the California Appellate Courts.

[00:17:03] Speaker 00:
I mean, I take your point that that isn't what Section 1105 says, but I take their point that that's how it's been interpreted by, I think, Tasswell.

[00:17:16] Speaker 00:
Yes, Your Honor.

[00:17:17] Speaker 00:
Oh, that is a separate statutory provision.

[00:17:19] Speaker 04:
Yes, Your Honor, and I think if the court were to agree with that view, that 1105 is a separate statutory provision that authorizes this, Walmart would be happy with that view, because that means they don't get attorney's fees.

[00:17:31] Speaker 04:
Because the attorney's fees are authorized by 1102.5J, not 1105.

[00:17:35] Speaker 03:
But that's an argument you could make below if we agree with you.

[00:17:39] Speaker 04:
That's right, Your Honor.

[00:17:39] Speaker 04:
I think you're not obligated to address that fee.

[00:17:42] Speaker 03:
I'm saying even if we...

[00:17:45] Speaker 03:
accepted their argument that like, look, the weight of intermediate California authority goes this way, you'll be in, you've still got arguments about why attorney's fees aren't warranted.

[00:17:59] Speaker 04:
Yes, Your Honor, of course, depending on the nature of the court's opinion.

[00:18:02] Speaker 04:
But yeah, I agree.

[00:18:03] Speaker 04:
But I think it is critical that in order to prevail under the approach articulated by these three intermediate appellate court decisions, they need to show that the

[00:18:14] Speaker 04:
their claim for damages actually is in a separate provision, and they say 1105, and that has negative consequences.

[00:18:20] Speaker 02:
You read from the one, and you said that that seems to fit with it, has to be in separate statutory.

[00:18:26] Speaker 02:
Did all three of them rely expressly on that?

[00:18:30] Speaker 02:
And I thought I remember the least plaintiffs in response when they came back, they said, well, this one is actually in the same provision.

[00:18:36] Speaker 04:
Yes, so they, I'm happy to answer that, Your Honor.

[00:18:40] Speaker 04:
So yes, they all say that, and Menefee, for example, says,

[00:18:44] Speaker 04:
Certain, quote, certain statutory schemes contain separate independent statutory provisions for recovery of actual damages and treble damages.

[00:18:50] Speaker 04:
And then in Menefi they say, all causes of action were premised entirely upon an alleged violation, that was a rental court ordinance in that case, not any separate independent wrong, so all are subject to section 340.

[00:19:03] Speaker 04:
Now, HyperTouch uses that same approach, it quotes that same language.

[00:19:09] Speaker 04:
I will acknowledge

[00:19:10] Speaker 04:
The bottom line result in HyperTouch is in some tension with that approach because HyperTouch says, well, the provisions for actual damages and liquidated damages are in separate statutory subdivisions.

[00:19:24] Speaker 04:
So they were in the same code section.

[00:19:27] Speaker 04:
They were just separate subdivisions.

[00:19:28] Speaker 04:
And HyperTouch says that's sufficient.

[00:19:31] Speaker 04:
So now, is that a plausible application of that rule?

[00:19:35] Speaker 04:
Not entirely clear.

[00:19:36] Speaker 04:
Also, is that consistent with MENEFEE?

[00:19:37] Speaker 04:
Also not entirely clear.

[00:19:40] Speaker 04:
But they all purport to be applying that approach.

[00:19:44] Speaker 04:
I should note, I think this is important, that all three of these cases, this is a line of cases, some of these cases are citing one another, and that the first of these, GHII, doesn't grapple with the text of Section 340 and instead draws inspiration from a case called Ashland Oil.

[00:20:03] Speaker 04:
which is from the Federal Temporary Emergency Court of Appeals, which of course doesn't exist anymore, from 1977, that adopts a free-wailing, purposive approach to Section 340.

[00:20:16] Speaker 04:
It says, oh, that would be ridiculous.

[00:20:18] Speaker 04:
That is inconsistent with the purpose of these statutes to require someone to bring a

[00:20:23] Speaker 03:
claim within one year so we're not going to do that.

[00:20:36] Speaker 03:
we should rely on a plain interpretation of the statute.

[00:20:41] Speaker 04:
Well, except that that decision wasn't a California decision, but was a federal appellate decision.

[00:20:44] Speaker 03:
Well, I understand that.

[00:20:45] Speaker 03:
But the fact that they were adopting that reasoning.

[00:20:48] Speaker 04:
And I agree, Your Honor.

[00:20:50] Speaker 04:
I think at the end of the day, this court has to determine whether these three intermediate appellate court decisions accurately reflect ultimately what the California Supreme Court would do.

[00:21:00] Speaker 04:
And the California Supreme Court has said, and this court has said,

[00:21:04] Speaker 04:
that the California Supreme Court applies the plain text of the statute.

[00:21:06] Speaker 03:
So in a way, you're sort of making the argument that we don't rely on the California Appellate Court because they've adopted an approach that the Supreme Court would not bless.

[00:21:16] Speaker 04:
That's correct, Your Honor.

[00:21:18] Speaker 04:
And there are, and I will admit, unpublished

[00:21:21] Speaker 02:
California intermediate because the California Supreme Court has a more conservative or textual approach to interpreting They have said that they do your honor.

[00:21:32] Speaker 04:
I I am NOT a regular we're all textual is now Precisely I am NOT a regular practitioner in California.

[00:21:40] Speaker 04:
I do occasionally and I was very pleased to see That both both in the California Supreme Court's decisions and and in this court's decisions in diversity lip service is always a good thing anyway

[00:21:53] Speaker 04:
So, but yes, I think at the end of the day, that is the question before this court.

[00:21:58] Speaker 04:
And I think it is also important to emphasize the point that I made before, that even those three intermediate appellate court decisions require the claims be, or the authorization for relief be in separate provisions.

[00:22:11] Speaker 04:
And here, I think, even if the court were to accept

[00:22:14] Speaker 04:
Mr. Lacrosse here on that point, he has problems even getting it through any source.

[00:22:18] Speaker 02:
So I want to make sure you address the evidentiary issue because you heard my questions about it and I'm, you know, I was kind of thinking that if we agreed with the appellants on the first issue that we didn't need to address the evidence but their argument is no, if we do have to go, if we go back and they won't give us a resolution to cut it and we have to actually have a trial,

[00:22:42] Speaker 02:
We're more likely to win if we can bring in this evidence.

[00:22:46] Speaker 02:
My understanding, and it sounds like they're saying, well, actually, the key issue that it goes to, Wal-Mart has conceded, but it goes to other issues also.

[00:22:55] Speaker 02:
So why do we need to reach the evidentiary issue if we send the others back?

[00:23:02] Speaker 02:
And if we do, why are they not correct that it goes to other issues?

[00:23:06] Speaker 04:
Yes.

[00:23:08] Speaker 04:
To answer your first question about the need to decide it, to be candid, Your Honor, I do not think the court needs to decide it, even if the court disagrees with us on the limitations issue.

[00:23:15] Speaker 04:
Number one, I think it is reasonably likely that Reis Yudegata will resolve this anyways, and so there would be no need to have a trial.

[00:23:25] Speaker 04:
Number two, it is not at all clear that Walmart would take the same position about

[00:23:32] Speaker 04:
uh... stipulation even let's set aside it didn't work so well the first time exactly which would then alter i think that what there's a good chance that would alter the way the district court approached it and then on the merits the this is well within the district court's discretion to say i'm not saying this word had to take this position but it was well within the district court's discretion to say wal-mart is willing to stipulate to this

[00:23:56] Speaker 04:
If we let this evidence in, we're going to have many trials about whether or not all of these other... But within a discretion in the sense of the balancing... Exactly, right, precisely.

[00:24:04] Speaker 02:
So you're sort of, you're at least conceding that even if it had some relevance to other issues that we've not stipulated to, because the big issue is the issue we've stipulated to, then the balance might, to my question about whether the balance might shift that you would, you think the district court could reach that?

[00:24:22] Speaker 04:
Exactly, Your Honor, and this is an unusual situation where,

[00:24:25] Speaker 04:
We know that the district court's decision didn't prejudice Mr. Locker because he prevailed.

[00:24:30] Speaker 04:
The jury ultimately concluded on essentially the identical issue that his termination was retaliatory.

[00:24:39] Speaker 04:
And Walmart, of course, hasn't appealed the jury's verdict on that conclusion.

[00:24:43] Speaker 04:
And of course, the jury's decision about the amount of damages is also race judicata, and we'd be race judicata as to both parties, of course.

[00:24:53] Speaker 04:
It's hard for me to imagine any need to have an additional trial.

[00:24:59] Speaker 03:
None of this really affects our decision, but in your view, if we ruled for them on the limitations period, this goes back down, you would make your arguments about whether attorney's fees, you don't see a new trial happening, it sounds like.

[00:25:17] Speaker 04:
Correct, Your Honor.

[00:25:18] Speaker 04:
It is just hard for me to see a new trial happening, particularly in view of, that would just be a

[00:25:23] Speaker 04:
Waste of the party's resources.

[00:25:24] Speaker 03:
It's hard to see why a little bit of pressure though on Walmart I guess in settlement discussions or whatever But but basically you'd have the discussion you'd make your arguments about why even under that theory they don't get attorneys fees Theoretically the judge would make a ruling on the law and then you'd say okay fine We made our argument, but I guess we owe them or Maybe you don't

[00:25:47] Speaker 04:
Well, and I should note as well, Your Honor, that the 1102.5J authorizes attorney's fees.

[00:25:55] Speaker 04:
It doesn't automatically entitle the plaintiff.

[00:25:57] Speaker 03:
Okay, fair enough.

[00:25:58] Speaker 03:
That would be one of your arguments, but none of that requires a jury trial.

[00:26:02] Speaker 02:
Can I follow up on that?

[00:26:03] Speaker 02:
So you say that you went, but did he get, I'm remembering $170,000 or something, what was the damages award?

[00:26:10] Speaker 04:
The damages award I believe was... 130?

[00:26:14] Speaker 02:
Yeah.

[00:26:15] Speaker 02:
100 something.

[00:26:16] Speaker 02:
But I'm assuming that attorney's fees, because they say, this is basically just about attorney's fees if there's other.

[00:26:22] Speaker 02:
But attorney's fees might be, they look like very good lawyers that have a very high rate.

[00:26:27] Speaker 02:
So I assume that it could be, attorney's fees could dwarf that.

[00:26:30] Speaker 02:
So why wouldn't Walmart be incentivized to...

[00:26:32] Speaker 02:
if we're talking about a million dollars' worth of attorney's fees.

[00:26:38] Speaker 02:
In other words, the second claim somehow actually becomes much larger exposure for Walmart.

[00:26:42] Speaker 04:
Right.

[00:26:43] Speaker 04:
That's true, Your Honor, and I think the... I'm not trying to say you're lying.

[00:26:46] Speaker 02:
I'm just trying to say... No, no.

[00:26:48] Speaker 04:
I just think that it seems, to be candid, Your Honor, it just seems like not an efficient use of the Court's resources to opine on these evidentiary issues where they only become relevant if the parties

[00:27:03] Speaker 04:
ultimately disagree about the application of race judicata.

[00:27:06] Speaker 04:
And, you know, I'm not taking a position today.

[00:27:08] Speaker 02:
Should we at least make clear if we're not opining on them?

[00:27:11] Speaker 02:
Because you're going to go back and you're going to say they didn't opine on them, you know, obviously they implicitly affirmed your... I would be happy for the court to say that we are not, we're not ruling on them, but if, you know, I'm not... You guys can reconsider this.

[00:27:24] Speaker 04:
Yeah, of course I would not.

[00:27:25] Speaker 04:
No, I wouldn't.

[00:27:27] Speaker 04:
Given what I'm saying today, Your Honor, if the court didn't address them, I'm not going to use that against Mr. Locker here.

[00:27:32] Speaker 04:
Of course not.

[00:27:33] Speaker 04:
So I think the...

[00:27:35] Speaker 04:
The evidentiary issues, I think, are not.

[00:27:38] Speaker 04:
I think they're the tail wagging the dog, so to speak.

[00:27:42] Speaker 04:
The real issue here is the limitations issue.

[00:27:44] Speaker 04:
And unless the court has any questions on the punitive damages issue, I'm happy to conclude.

[00:27:49] Speaker 04:
Thank you.

[00:27:49] Speaker 00:
Thank you.

[00:27:51] Speaker 00:
You have a few minutes for a rebuttal.

[00:27:57] Speaker 01:
Thank you, Your Honors.

[00:27:59] Speaker 01:
Just to briefly address the 1102.5 issue,

[00:28:03] Speaker 01:
The cases holding that different statutory provisions provide different remedies for actual versus penalties don't imply that they need to be in different code sections.

[00:28:14] Speaker 01:
They simply need to be different statutory provisions.

[00:28:17] Speaker 01:
And in fact, you know, in Pompeii, which we cited in both of our opening and reply brief, the court was very explicit about that.

[00:28:25] Speaker 01:
And it says, and I quote, the same statute may provide for different remedies, and those remedies may be subject to different limitations periods.

[00:28:32] Speaker 01:
There is just no question as to California law.

[00:28:36] Speaker 02:
So your view would be that, yeah, because you're interpreting, they're interpreting as different, have to be in different code sections, but as my understanding is, that third case is,

[00:28:44] Speaker 02:
kind of inconsistent with their position on that and you would say that third case validates your view that they have to be different statutory provisions but they don't have to be in different statutes or in different code.

[00:28:55] Speaker 01:
That's correct Your Honor and there are other cases in addition to hyper touch that have reached that conclusion as well including Stone v. James which again we cited and the Ashland oil case that you discussed.

[00:29:05] Speaker 01:
with Council for Walmart.

[00:29:08] Speaker 01:
And indeed, if we're trying to define what the California Supreme Court would do, and would it disregard the weight of California appellate authority,

[00:29:16] Speaker 01:
The California Supreme Court has weighed in on this in Pineda, where it held that Section 203 claims for penalties would be governed by a one-year statute of limitations, 203 claims for inaccurate wage statements, where claims for actual damages would be governed by a three-year statute of limitations.

[00:29:37] Speaker 02:
answer your opposing counsel's view of like you don't really need an evidentiary ruling in this case.

[00:29:43] Speaker 02:
Everybody's going to behave themselves on.

[00:29:46] Speaker 01:
Well, I hope that that is true, Your Honor.

[00:29:49] Speaker 01:
Again, I think the argument that we won with one arm tied behind our back the first time means that we can do it again in front of a new jury should that be relevant.

[00:29:59] Speaker 01:
I don't think it's a convincing argument.

[00:30:00] Speaker 02:
What about the idea that it

[00:30:02] Speaker 02:
I mean, how does that play into our analysis that in theory there could be a jury trial, but I do think he makes a good point that it does seem unlikely that it would.

[00:30:13] Speaker 02:
So why, and especially if we made it clear in an opinion that the district court judge could, can revisit the issue, is that good enough for you guys?

[00:30:28] Speaker 01:
avoid us hopefully having to be up here in another year and a half if the panel were to weigh in on those issues.

[00:30:36] Speaker 02:
You know, I agree that it is certainly... The problem with weighing in on them is that I don't know how we can weigh in on them and not get to the balancing issue.

[00:30:45] Speaker 02:
And the balancing, you know, I'm not sure if you went on that because the balancing issue is abuse of discretion, right?

[00:30:50] Speaker 02:
So, and what makes it complicated is

[00:30:53] Speaker 02:
is in doing that balancing, your point is, well, it's still relevant to other issues, but I don't know that we've ever addressed in any cases.

[00:31:03] Speaker 02:
If it's relevant to, if the main issue that it seems to be relevant to, maybe we could all agree that the main, that they've stipulated it to, what do you do with that when they've taken that off the table?

[00:31:12] Speaker 02:
Yes, you could still use that evidence, but it does obviously make, change the balance when the main, if you think there's some prejudice to it, but it also is probative,

[00:31:22] Speaker 02:
But one of the main things that's probative for you kind of eliminated by stipulating to that suddenly changes that balance and that's just a complicated thing for a court of appeals to deal with when we layer on top the abuse of discretion standard and a little bit in the abstract I feel like because the jury trial won't have happened in this case yet.

[00:31:43] Speaker 01:
I think the prejudice that Walmart complains of is folks knowing that they in fact violated the cold chain, which they think might inflame the juries.

[00:31:55] Speaker 01:
That is a limited amount of prejudice compared to the

[00:32:01] Speaker 01:
Relevance as to causation right and in fact.

[00:32:04] Speaker 01:
I think it really is central to causation Why do they have a motive?

[00:32:07] Speaker 01:
Why do they have incentive to you know to keep mr?

[00:32:10] Speaker 01:
Loker quiet to get rid of him because they're saving money by violating the cold chain by letting this food melt and sticking it back in the freezer and He won't shut up about it, so they have to get rid of him So it is I think central to that issue and the prejudice is simply that the thing he was complaining about was in fact happening

[00:32:29] Speaker 01:
And I see my time is up, so.

[00:32:33] Speaker 00:
Thank you for your argument.

[00:32:35] Speaker 00:
In the case of Ryan Loger versus Walmart, it's submitted.