Alsheikh v. Superior Court CA2/5

Filed 10/7/13 Alsheikh v. Superior Court CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

EDDIE ALSHEIKH et al., No. B249822

Petitioners, (Super. Ct. No. BC360109) (Jane L. Johnson, Judge) v.

THE SUPERIOR COURT OF LOS ANGELES COUNTY,

Respondent;

SARA LEE FRESH, INC. et al,

Real Parties in Interest.

Original proceeding; petition for writ of mandate. Jane L. Johnson, Judge. Granted and remanded with instructions. Arias, Ozzello & Gignac, Mike Arias; Law Offices of George Kaufman, George A. Kaufman; Kreindler & Kreindler, Gretchen M. Nelson; Law offices of Jonathan Weiss and Jonathan Weiss for Petitioners and Plaintiffs. No appearance for Respondent. Paul Hastings, Donna Melby, Elizabeth Brown, Holly House, and Sean Unger for Defendants and Real Parties In Interest.

INTRODUCTION Petitioner and plaintiff Sylvia Ingoglia (plaintiff) is one of the four plaintiffs who filed a class action against real parties in interest and defendants Sara Lee Fresh, Inc., Sara Lee Corporation, Grupo Bimbo S.A.B. De C.V, Bimbo Bakeries USA Inc. and Earthgrains Distribution, LLC (collectively defendants). Out of three petitioners, two of the plaintiffs settled their case with defendants shortly before the oral argument in this matter, leaving just plaintiff Sylvia Ingoglia as the remaining petitioner. Plaintiff alleged she was an employee denied wage and hour benefits under the Labor Code. Plaintiff also alleged that if she were an independent contractor, defendants violated state antitrust laws by setting the price at which plaintiff was required to sell baked goods to those stores and by imposing territorial restrictions. Plaintiff alleged in her 12th and 13th causes of action violations of Business and Professions Code section 16720, California’s antitrust law (Cartwright Act), and in her 15th cause of action violation of Business and Professions Code section 17200 (Unfair Competition Law). Defendants demurred to plaintiff’s 12th, 13th and 15th causes of action, in which she alleged an antitrust violation and unfair competition based on the facts of vertical price fixing and horizontal territorial divisions. Defendants asserted that plaintiff had failed to allege an antitrust violation. Defendants also contended that even if plaintiff had alleged an antitrust violation based on such acts, such acts are no longer per se illegal under the Cartwright Act. Defendants argued that the California Supreme Court case of Mailand v. Burckle (1978) 20 Cal.3d 367, in which the court held that the per se rule applied to vertical price fixing under the Cartwright Act, was no longer good law because the court relied upon federal law that subsequently had been abandoned by the United States Supreme Court in Leegin Creative Leather Products, Inc. v. PSKS, Inc. (2007) 551 U.S. 887. We hold that plaintiff’s allegations in the operative complaint do not show vertical price fixing in violation of the Cartwright Act. Although granting the petition for a writ of mandate, we remand the matter to the trial court with instructions to sustain the