Gerardo Vazquez, Gloria Roman, and Juan Aguilar, on behalf of themselves and all other similarly situated, Plaintiffs-Appellants,
Jan-Pro Franchising International, Inc., Defendant-Appellee.
and Submitted December 18, 2018 San Francisco, California
from the United States District Court No. 3:16-cv-05961-WHA
for the Northern District of California William Alsup,
District Judge, Presiding.
Before: Ronald M. Gould and Marsha S. Berzon, Circuit Judges,
and Frederic Block, District Judge. [*]
CERTIFYING QUESTION TO THE CALIFORNIA SUPREME COURT
Question to the California Supreme Court
panel certified the following question of state law to the
California Supreme Court:
Does Dynamex Operations West Inc. v. Superior Court,
416 P.3d 1 (Cal. 2018), apply retroactively?
the California Supreme Court to resolve an open question of
California state law and certify the following question: Does
the Court's decision in Dynamex Operations West Inc.
v. Superior Court, 416 P.3d 1 (Cal. 2018), apply
retroactively? Our phrasing of the question should not
restrict the Court's consideration of the issues
involved. The Court may rephrase the questions as it sees fit
in order to address the contentions of the parties. If the
Court agrees to decide this question, we agree to accept its
decision. We recognize that the Court has a substantial
caseload, but we submit this question in the interests of
comity and because of its significance for California labor
law and California businesses.
case dates back more than a decade. We provide background on
the parties, their dispute, the procedural history of the
case, and their contentions on appeal to frame the question
we are certifying.
Jan-Pro International Franchising, Inc. ("Jan-Pro")
is a company headquartered in Georgia. It licenses a system
for marketing cleaning services to "regional master
franchisees, " in multiple countries, including the
United States. Regional master franchisees purchase
franchises for exclusive operations in a given regional area.
master franchisees, in turn, are franchisors to "unit
franchisees." Regional master franchisors advertise cleaning services within the
geographic region covered by the franchise, provide bids to
potential customers, and process payments. Unit franchisees
are given the option to accept or reject these bids; for any
bids they accept, they perform the actual cleaning under the
"Jan-Pro" name. Unit franchisees are also allowed
to solicit their own accounts. After royalties and other fees
are deducted for Jan-Pro and the regional master franchisor,
the balance is remitted to the unit franchisee. Regional
master franchisors also offer "business and management
services" to unit franchisees, including training,
"assistance with customer relations" (which
includes finding a substitute unit franchisee if a scheduled
unit franchisee is unable to fulfill a contract), and
invoicing. Some regional master franchisors provide cleaning
supplies to their unit franchisees.
is not party to any contract with unit franchisees. Jan-Pro
contracts with the master franchisors, who then contract with
unit franchisees. Unit franchisees may hire their own