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Mendoza v. Nordstrom, Inc.

United States Court of Appeals, Ninth Circuit

February 19, 2015

CHRISTOPHER MENDOZA, an individual, on behalf of himself and all other persons similarly situated, Plaintiff-Appellant, MEAGAN GORDON, Plaintiff-Intervenor,
v.
NORDSTROM, INC., a Washington Corporation authorized to do business in the State of California, Defendant-Appellee. CHRISTOPHER MENDOZA, an individual, on behalf of himself and all other persons similarly situated, Plaintiff, and MEAGAN GORDON, Plaintiff/Intervenor-Appellant,
v.
NORDSTROM, INC., a Washington Corporation authorized to do business in the State of California, Defendant-Appellee

Page 835

D.C. No. 8:10-cv-00109-CJC-MLG. D.C. No. 8:10-cv-00109-CJC-MLG.

SUMMARY[*]

Certification to California Supreme Court

The panel certified three questions to the Supreme Court of California:

(A) California Labor Code section 551 provides that " [e]very person employed in any occupation of labor is entitled to one day's rest therefrom in seven." Is the required day of rest calculated by the workweek, or is it calculated on a rolling basis for any consecutive sevenday period?
(B) California Labor Code section 556 exempts employers from providing such a day of rest " when the total hours of employment do not exceed 30 hours in any week or six hours in any one day thereof." (Emphasis added.) Does that exemption apply when an employee works less than six hours in any one day of the applicable week, or does it apply only when an employee works less than six hours in each day of the week?
(C) California Labor Code section 552 provides that an employer may not " cause his employees to work more than six days in seven." What does it mean for an employer to " cause" an employee to work more than six days in seven: force, coerce, pressure, schedule, encourage, reward, permit, or something else?

André E. Jardini (argued) and K.L. Myles, Knapp, Petersen & Clarke, Glendale, California, for Plaintiff-Appellant.

R. Craig Clark (argued), James M. Treglio, and Laura M. Cotter, Clark & Treglio,, San Diego, California; David Roger Markham, The Markham Law Firm, San Diego, California, for Plaintiff/Intervenor-Appellant.

Julie A. Dunne (argued), Dawn Fonseca, Lara K. Strauss, Michael G. Leggieri, and Joshua D. Levine, Littler Mendelson, P.C., San Diego, California, for Defendant-Appellee.

Before: Susan P. Graber, Ronald M. Gould, and Consuelo M. Callahan, Circuit Judges.

Page 836

ORDER CERTIFYING QUESTIONS TO THE SUPREME COURT OF CALIFORNIA

ORDER

GRABER, Circuit Judge:

We respectfully ask the Supreme Court of California to exercise its discretion to decide the three certified questions set forth in Part II of this Order, below. See Cal. R. Ct. 8.548. The answers to these questions of California law would be dispositive of the appeal before us, and no clear controlling California precedent exists. Id. Moreover, because the questions that we certify are of extreme importance to tens of thousands of employees in California, considerations of comity and federalism suggest that the court of last resort in California, rather than our court, should have the opportunity to answer the questions in the first instance. See Kilby v. CVS Pharmacy, Inc., 739 F.3d 1192, 1196-97 (9th Cir. 2013); Klein v. United States, 537 F.3d 1027, 1028 (9th Cir. 2008).

I. Administrative Information

We provide the following information in accordance with California Rule of Court 8.548(b)(1):

The consolidated caption for these cases is:

CHRISTOPHER MENDOZA, an individual, on behalf of himself and all other persons similarly situated, Plaintiff-Appellant,

MEAGAN GORDON, Plaintiff-Intervenor /Appellant,

v.

NORDSTROM, INC., a Washington Corporation authorized to do business in the State of ...


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