Grodensky v. Artichoke Joe

SUPREME COURT CASES

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: A119035

Case Date: 06/25/2009

Preview:Filed 3/11/09

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO

HARVEY GRODENSKY, Plaintiff and Respondent, v. ARTICHOKE JOES CASINO et al., Defendants and Appellants. HARVEY GRODENSKY, Plaintiff and Appellant, v. ARTICHOKE JOES CASINO et al., Defendants and Respondents. (San Mateo County Super. Ct. No. CIV424170) A119036 (San Mateo County Super. Ct. No. CIV424170) A119035

Artichoke Joes Casino (Artichoke Joes or the casino) implemented a mandatory tip pooling policy for the dealers. A dealer, Harvey Grodensky, filed a class action and alleged claims for conversion and violating Labor Code sections 351 and 1194. He also claimed in his representative capacity that the casino had violated the Unfair Competition Law (UCL). After a bench trial, the trial court found that a mandatory tip pool was legal. However, it determined the shift managers were agents of the casino and therefore the casino violated Labor Code section 351 by distributing a portion of the tip money to the shift managers. The court also found that this violation of the Labor Code supported Grodenskys UCL claim. The court ordered restitution for the amount of tip money given to the shift managers and issued an injunction. It also ruled that Grodensky was entitled 1

to an award of attorney fees under Code of Civil Procedure section 1021.5. Both parties appealed and we, on our own motion, consolidated the appeals. On appeal, Artichoke Joes asserts that a protective order issued by the trial court was unlawful, that Labor Code section 351 did not provide Grodensky with a private right of action, and that restitution was not a proper remedy. It also challenges the courts award of attorney fees to Grodensky and the class. We agree that the lower court did not apply the proper test under Code of Civil Procedure section 1021.5 when determining that Grodensky was entitled to attorney fees and remand for the court to consider whether to award attorney fees using the proper test. We otherwise reject the casinos arguments. In the appeal by Grodensky and the class, they argue that the trial court erred in finding that the mandatory tipping pool did not violate Labor Code section 351 and that the casino did not violate Labor Code section 1194. They also object to the lower courts rulings that the floor managers were not agents under Labor Code section 350, subdivision (d), that Grodensky could not bring a claim of conversion, and that Grodensky and the class did not have a UCL claim based on alleged violations of Labor Code sections 221 and 450. We are not persuaded by any of Grodensky and the classs arguments. BACKGROUND Pre-Trial The Complaint, Protective Order, and Class Certification On July 12, 2002, Grodensky, a dealer at the casino, filed a class action lawsuit against the casino and Dennis J. Sammut challenging the implementation of a tip pool, which required the dealers to contribute to a tip pool.1 Sammuts father started Artichoke Joes as a family business in 1957. The casino became a corporate operation in approximately 1986; Sammut is one of the three major shareholders and an officer of the corporation.

1

The complaint alleged that Sammut was an agent of the casino. 2

In his complaint, Grodensky set forth claims of conversion and violations of the gratuity statute (Lab. Code,

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