After the Supreme Court decided Gentry, it remanded all of the "grant and hold" cases back to their respective Courts of Appeal. This week, in an unpublished opinion, the Court of Appeal (Second Appellate District, Division Seven) disposed of one of those Gentry "grant and hold" remand cases. Massie v. Ralph's Grocery Co., no. B187844 (nonpub. opn. Apr. 7, 2008). The case has been remanded back to the trial court for it to decide, in the first instance, whether the arbitration provisions are enforceable under the standards set forth in Gentry:
An employer appeals from orders denying its petitions to compel arbitration of two class action lawsuits filed by its employees, alleging Labor Code and Unfair Competition Law violations. The employer unsuccessfully sought arbitration of these disputes in accordance with provisions in various agreements that subject such claims to individual binding arbitration and prohibit proceedings on a class or representative basis. In a prior opinion, we affirmed. (McLeod v. Ralphs Grocery Company (May 14, 2007, B187844/B187854) [nonpub. opn.], review granted Aug. 8, 2007, S153059.) Our Supreme Court has remanded the cause to us with directions to vacate our prior opinion and reconsider this matter in light of Gentry v. Superior Court (2007) 42 Cal.4th 443.
In Gentry v. Superior Court, supra, 42 Cal.4th at pages 462 and 463, our Supreme Court stated: “We cannot say categorically that all class arbitration waivers in overtime cases are unenforceable. . . . Nonetheless, when it is alleged that an employer has systematically denied proper overtime pay to a class of employees and a class action is requested notwithstanding an arbitration agreement that contains a class arbitration waiver, the trial court must consider the[se] factors . . . : the modest size of the potential individual recovery, the potential for retaliation against members of the class, the fact that absent members of the class may be ill informed about their rights, and other real world obstacles to the vindication of class members’ rights to overtime pay through individual arbitration.” Accordingly, Gentry’s application to the factual record in this case should be performed by the trial court in the first instance. (See Gentry v. Superior Court, supra, 42 Cal.4th at p. 472 [“we remand the matter to the Court of Appeal with directions to remand to the trial court to determine whether the class arbitration waiver is void”].) We therefore reverse and remand this matter to the trial court with directions to reconsider this case in light of Gentry, supra, 42 Cal.4th 443. Each side shall bear its own costs of appeal.
Slip op. at 2-3. See this blog post for more on Gentry.