(June 25, 2014) One decision issued by the California Supreme Court this week marked a victory for the business perspective on defibrillators, while the second was a partial win affecting arbitration agreements.
The California Chamber of Commerce joined the Civil Justice Association of California (CJAC) in filing friend-of-the-court briefs in both cases.
The court did say it is up to the Legislature to create such a duty if one is needed.
But the court disagreed with CalChamber/CJAC in ruling that lawsuits under the state Private Attorneys General Act (PAGA) cannot be waived in an arbitration agreement.
In the Verdugo case, the mother and brother of Mary Ann Verdugo, who died of sudden cardiac arrest (SCA) in 2008 while shopping at a Target store in California, alleged that Target Corp. had a common law duty to have an Automatic External Defibrillator (AED) on its premises, which Target did not have when Verdugo suffered the cardiac arrest.
Although a 911 call was made promptly when Verdugo suffered the SCA, it took paramedics several minutes to reach her. By the time they arrived, Verdugo had died.
The California Legislature has enacted numerous laws governing the placement and attendant responsibilities of certain types of facilities for maintaining, testing, and training employees about the use of defibrillators.
For example, health studios are required to have AEDs available. The CalChamber/CJAC friend-of-the-court brief
pointed out that the Legislature exempts retail stores from any requirement to have AEDs on the premises.
Specifically, California Health and Safety Code 1797.196(f) states in plain language that: “[n]othing in this section or Section 1714.21 may be construed to require a building owner or building manager to acquire and have installed an AED in any building.”
This plain language, the CalChamber and CJAC argued, clearly shows that the defendant is not under a duty to place a defibrillator on its property.
The California Supreme Court agreed that Target had no common law duty to have and make available an AED, also noting that every state appellate court decision on the question has determined that a business’s common law duty to assist patrons who become ill on the business’s premises does not impose such an obligation.
In the Iskanian case, an employee tried to bring a class action lawsuit on behalf of himself and similarly situated employees for the employer’s alleged failure to compensate its employees for, among other things, overtime and meal and rest periods. The employee had entered into an arbitration agreement that waived the right to class action lawsuits.
The CalChamber and CJAC argued
that under the U.S. Supreme Court decision in AT&T Mobility LLC v. Concepcion
, the California law (as outlined in Gentry v. Superior Court
(2007) 42 Cal.4th 443) invalidating arbitration agreements with class waivers was preempted by the Federal Arbitration Act (FAA).
The California Supreme Court agreed.
The employee in the Iskanian case also tried to file a lawsuit under PAGA, which authorizes an employee to seek civil penalties on behalf of the state against his/her employer for Labor Code violations against the employee and fellow employees, with most of the proceeds of the litigation going to the state.
The California Supreme Court concluded that an arbitration agreement requiring an employee as a condition of employment to give up the right to file lawsuits under PAGA is contrary to public policy. “[T]he FAA does not preempt a state law that prohibits waiver of PAGA representative actions in an employment contract.”