NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 27 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
SERGE HAITAYAN; JASPREET No. 18-55462 DHILLON; ROBERT ELKINS; MANINDER LOBANA, individually, and D.C. No. on behalf of others similarly situated, 2:17-cv-07454-JFW-JPR
Plaintiffs-Appellants, MEMORANDUM* v.
7-ELEVEN, INC., a Texas corporation,
Defendant-Appellee.
Appeal from the United States District Court for the Central District of California John F. Walter, District Judge, Presiding
SERGE HAITAYAN; JASPREET No. 18-55910 DHILLON; ROBERT ELKINS; 18-56346 MANINDER LOBANA, D.C. No. Plaintiffs-Appellants, 2:18-cv-05465-DSF-AS
v.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Appeal from the United States District Court for the Central District of California Dale S. Fischer, District Judge, Presiding
Argued and Submitted February 13, 2019 Pasadena, California
Before: FISHER, CALLAHAN and OWENS, Circuit Judges.
In No. 18-55462 (Haitayan I), plaintiff-franchisees appeal the district court’s
grant of judgment on the pleadings on their claims that franchisor 7-Eleven
misclassified them as independent contractors rather than employees in violation of
the Fair Labor Standards Act and the California Labor Code. In Nos. 18-55910
and 18-56346 (Haitayan II), the plaintiffs appeal the order of the district court
denying their motion for a preliminary injunction and corrective notice regarding
7-Eleven’s distribution of a franchise renewal agreement requiring franchisees to
release their wage-and-hour claims in Haitayan I. We vacate and remand in both
appeals.
A. Haitayan I
1. We vacate the judgment on the pleadings. See Doe v. United States,
419 F.3d 1058, 1061 (9th Cir. 2005). In addressing the adequacy of the plaintiffs’
federal and state law claims, the court erred in two respects. First, it considered the
persuasiveness of the plaintiffs’ factual allegations rather than the plausibility of
the plaintiffs’ legal claims. This was error. See Turner v. Cook, 362 F.3d 1219,
1225 (9th Cir. 2004) (stating that we must “accept all factual allegations in the
2 complaint as true and construe them in the light most favorable to [the non-moving
party]” (citation omitted) (alteration in original)). Second, the court focused on the
franchise agreement but did not consider the plaintiffs’ allegations regarding 7-
Eleven’s actual control. This too was error. See Estrada v. FedEx Ground
Package Sys., Inc., 64 Cal. Rptr. 3d 327, 335 (Ct. App. 2007) (in conducting a
misclassification analysis, “[t]he parties’ label is not dispositive and will be
ignored if their actual conduct establishes a different relationship”); see also Real
v. Driscoll Strawberry Assocs. Inc., 603 F.2d 748, 755 (9th Cir. 1979) (“Economic
realities, not contractual labels, determine employment status for the remedial
purposes of the FLSA.”). Accordingly, we vacate the district court’s judgment on
the pleadings without prejudice to 7-Eleven seeking judgment as a matter of law at
a later stage in the proceedings.
2. Following the district court’s entry of judgment, the California
Supreme Court decided Dynamex Operations West, Inc. v. Superior Court, 416
P.3d 1 (Cal. 2018). We leave it to the district court in the first instance to address
the extent to which Dynamex applies to the plaintiffs’ claims, including the parties’
contentions regarding retroactive application of Dynamex. In addition, the district
court is advised that this court is currently considering the application of Dynamex
to franchisees in Vazquez v. Jan-Pro Franchising Int’l Inc., No. 17-16096, argued
December 18, 2018. To the extent appropriate, proceedings in the district court
3 may be stayed pending this court’s decision in Vazquez.
3. Because we vacate the underlying judgment, we need not address the
district court’s taxation of costs. Because we can consider Massachusetts and
California state court decisions without taking judicial notice, we deny the
plaintiffs’ motions for judicial notice. See No. 18-55462, Dkts. 12, 28.
B. Haitayan II
1. We also vacate the denial of preliminary injunctive relief and
corrective notice. See Earth Island Inst. v. Carlton, 626 F.3d 462, 468 (9th Cir.
2010). Under California law, an employee may not waive a wage-and-hour claim
by contract. See Cal. Labor Code §§ 206.5, 2804. This rule is relevant to the
preliminary injunction factors at issue here, including the likelihood of success on
the merits, irreparable harm and the balance of equities. The district court,
however, did not consider this California rule. We therefore vacate the denial of
relief and remand for reconsideration. We are concerned that the plaintiffs’ request
for relief is time sensitive. Franchisees are required to sign the challenged waivers
in April 2019. We therefore urge the district court to address the plaintiffs’
requests for relief on an expedited basis.
2. Because they may arise on remand, we also provide guidance to the
district court on several of the other issues raised on appeal. See United States v.
Hernandez-Vasquez, 513 F.3d 908, 917 (9th Cir. 2008).
4 a. Likelihood of Success on the Merits
In addressing the likelihood of success on the merits, the district court relied
on Ahussain v. GNC Franchising, LLC, 2008 WL 11336812 (C.D. Cal. Mar. 19,
2008). The plaintiffs contend this reliance was unwarranted. We agree. Ahussain
applies to general releases in franchise renewal agreements, but it does not address
California’s prohibition on the contractual waiver of the plaintiffs’ claims. The
district court should bear this distinction in mind on remand.
We reject 7-Eleven’s suggestion that the waiver is permissible as a
settlement. Labor claims may be settled only by release and payment, which has
not occurred here. See Watkins v. Wachovia Corp., 92 Cal. Rptr. 3d 409, 417 (Ct.
App. 2009).
We also reject 7-Eleven’s contention that the plaintiffs are contractually
obligated to sign the general release because the franchise agreements they signed
in 2004 said a general release would be required for renewal. 7-Eleven has not
shown that this provision negates California’s prohibition on contractual waiver of
wage-and-hour claims.
b. Irreparable Harm
Although putative class members must sign the waiver to protect their
livelihoods, it is not clear how 7-Eleven will proceed once they sign. The district
court correctly noted that if class members are ultimately found to be employees,
5 the waiver will likely be deemed unconscionable and unenforceable. If they are
ultimately found to be independent contractors, however, 7-Eleven may attempt to
hold them in breach of contract for participating in Haitayan I. These uncertainties
place franchisees in a difficult position. If they do not sign the waiver, they may
forfeit their livelihoods. If they sign the waiver, they may have to choose between
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 27 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
SERGE HAITAYAN; JASPREET No. 18-55462 DHILLON; ROBERT ELKINS; MANINDER LOBANA, individually, and D.C. No. on behalf of others similarly situated, 2:17-cv-07454-JFW-JPR
Plaintiffs-Appellants, MEMORANDUM* v.
7-ELEVEN, INC., a Texas corporation,
Defendant-Appellee.
Appeal from the United States District Court for the Central District of California John F. Walter, District Judge, Presiding
SERGE HAITAYAN; JASPREET No. 18-55910 DHILLON; ROBERT ELKINS; 18-56346 MANINDER LOBANA, D.C. No. Plaintiffs-Appellants, 2:18-cv-05465-DSF-AS
v.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Appeal from the United States District Court for the Central District of California Dale S. Fischer, District Judge, Presiding
Argued and Submitted February 13, 2019 Pasadena, California
Before: FISHER, CALLAHAN and OWENS, Circuit Judges.
In No. 18-55462 (Haitayan I), plaintiff-franchisees appeal the district court’s
grant of judgment on the pleadings on their claims that franchisor 7-Eleven
misclassified them as independent contractors rather than employees in violation of
the Fair Labor Standards Act and the California Labor Code. In Nos. 18-55910
and 18-56346 (Haitayan II), the plaintiffs appeal the order of the district court
denying their motion for a preliminary injunction and corrective notice regarding
7-Eleven’s distribution of a franchise renewal agreement requiring franchisees to
release their wage-and-hour claims in Haitayan I. We vacate and remand in both
appeals.
A. Haitayan I
1. We vacate the judgment on the pleadings. See Doe v. United States,
419 F.3d 1058, 1061 (9th Cir. 2005). In addressing the adequacy of the plaintiffs’
federal and state law claims, the court erred in two respects. First, it considered the
persuasiveness of the plaintiffs’ factual allegations rather than the plausibility of
the plaintiffs’ legal claims. This was error. See Turner v. Cook, 362 F.3d 1219,
1225 (9th Cir. 2004) (stating that we must “accept all factual allegations in the
2 complaint as true and construe them in the light most favorable to [the non-moving
party]” (citation omitted) (alteration in original)). Second, the court focused on the
franchise agreement but did not consider the plaintiffs’ allegations regarding 7-
Eleven’s actual control. This too was error. See Estrada v. FedEx Ground
Package Sys., Inc., 64 Cal. Rptr. 3d 327, 335 (Ct. App. 2007) (in conducting a
misclassification analysis, “[t]he parties’ label is not dispositive and will be
ignored if their actual conduct establishes a different relationship”); see also Real
v. Driscoll Strawberry Assocs. Inc., 603 F.2d 748, 755 (9th Cir. 1979) (“Economic
realities, not contractual labels, determine employment status for the remedial
purposes of the FLSA.”). Accordingly, we vacate the district court’s judgment on
the pleadings without prejudice to 7-Eleven seeking judgment as a matter of law at
a later stage in the proceedings.
2. Following the district court’s entry of judgment, the California
Supreme Court decided Dynamex Operations West, Inc. v. Superior Court, 416
P.3d 1 (Cal. 2018). We leave it to the district court in the first instance to address
the extent to which Dynamex applies to the plaintiffs’ claims, including the parties’
contentions regarding retroactive application of Dynamex. In addition, the district
court is advised that this court is currently considering the application of Dynamex
to franchisees in Vazquez v. Jan-Pro Franchising Int’l Inc., No. 17-16096, argued
December 18, 2018. To the extent appropriate, proceedings in the district court
3 may be stayed pending this court’s decision in Vazquez.
3. Because we vacate the underlying judgment, we need not address the
district court’s taxation of costs. Because we can consider Massachusetts and
California state court decisions without taking judicial notice, we deny the
plaintiffs’ motions for judicial notice. See No. 18-55462, Dkts. 12, 28.
B. Haitayan II
1. We also vacate the denial of preliminary injunctive relief and
corrective notice. See Earth Island Inst. v. Carlton, 626 F.3d 462, 468 (9th Cir.
2010). Under California law, an employee may not waive a wage-and-hour claim
by contract. See Cal. Labor Code §§ 206.5, 2804. This rule is relevant to the
preliminary injunction factors at issue here, including the likelihood of success on
the merits, irreparable harm and the balance of equities. The district court,
however, did not consider this California rule. We therefore vacate the denial of
relief and remand for reconsideration. We are concerned that the plaintiffs’ request
for relief is time sensitive. Franchisees are required to sign the challenged waivers
in April 2019. We therefore urge the district court to address the plaintiffs’
requests for relief on an expedited basis.
2. Because they may arise on remand, we also provide guidance to the
district court on several of the other issues raised on appeal. See United States v.
Hernandez-Vasquez, 513 F.3d 908, 917 (9th Cir. 2008).
4 a. Likelihood of Success on the Merits
In addressing the likelihood of success on the merits, the district court relied
on Ahussain v. GNC Franchising, LLC, 2008 WL 11336812 (C.D. Cal. Mar. 19,
2008). The plaintiffs contend this reliance was unwarranted. We agree. Ahussain
applies to general releases in franchise renewal agreements, but it does not address
California’s prohibition on the contractual waiver of the plaintiffs’ claims. The
district court should bear this distinction in mind on remand.
We reject 7-Eleven’s suggestion that the waiver is permissible as a
settlement. Labor claims may be settled only by release and payment, which has
not occurred here. See Watkins v. Wachovia Corp., 92 Cal. Rptr. 3d 409, 417 (Ct.
App. 2009).
We also reject 7-Eleven’s contention that the plaintiffs are contractually
obligated to sign the general release because the franchise agreements they signed
in 2004 said a general release would be required for renewal. 7-Eleven has not
shown that this provision negates California’s prohibition on contractual waiver of
wage-and-hour claims.
b. Irreparable Harm
Although putative class members must sign the waiver to protect their
livelihoods, it is not clear how 7-Eleven will proceed once they sign. The district
court correctly noted that if class members are ultimately found to be employees,
5 the waiver will likely be deemed unconscionable and unenforceable. If they are
ultimately found to be independent contractors, however, 7-Eleven may attempt to
hold them in breach of contract for participating in Haitayan I. These uncertainties
place franchisees in a difficult position. If they do not sign the waiver, they may
forfeit their livelihoods. If they sign the waiver, they may have to choose between
(1) participating in Haitayan I (as parties or witnesses), thereby risking civil
liability for breach of contract, or (2) foregoing their right to participate in
Haitayan I. This uncertainty imposes immediate and irreparable harm by deterring
franchisees from participating in the case. This harm warrants consideration on
remand.
c. Balance of the Equities
With regard to the balance of the equities, the district court focused on the
public interest in enforcing valid contracts but did not consider California’s interest
in allowing colorable wage-and-hour claims to proceed. The plaintiffs argue that
the court should have done so, and we agree. The public interest here is
substantial. See Dynamex, 416 P.3d at 5 (“[T]he misclassification of workers as
independent contractors rather than employees is a very serious problem, depriving
federal and state governments of billions of dollars in tax revenue and millions of
workers of the labor law protections to which they are entitled.”). In balancing the
equities, the district court should also consider the parties’ relative size and
6 strength. See Int’l Jensen, Inc. v. Metrosound U.S.A., Inc., 4 F.3d 819, 827 (9th
Cir. 1993).
C. Consolidation
To serve the interest of judicial efficiency, and for the convenience of the
parties, we encourage the district court to consolidate these two cases before a
single district judge.1
D. Conclusion
In No. 18-55462, the appellants’ motions for judicial notice, filed October 1,
2018 (Dkt. 12), and December 21, 2018 (Dkt. 28), are DENIED.
In No. 18-55462, the judgment is vacated and the case is remanded. In Nos.
18-55910 and 18-56346, the order of the district court is vacated and the case is
remanded.
In Nos. 18-55462, 18-55910 and 18-56346, costs of appeal are awarded to
the plaintiffs.
In Nos. 18-55462, 18-55910 and 18-56346, no petitions for rehearing will be
entertained and the mandates shall issue forthwith. See Fed. R. App. P. 2.
VACATED AND REMANDED.
1 At oral argument, both parties agreed consolidation would be appropriate.