Wednesday, March 22, 2017

National Labor Relations Board v. SW General, Inc. - filed Mar. 21, 2017

Subsection (b)(1) of the Federal Vacancies Reform Act prevents a person who has been nominated to fill a vacant office for which a presidential appointment requires Senate confirmation from performing the duties of that office in an acting capacity. The prohibition applies to anyone performing acting service under the act and is not limited to first assistants performing acting service in the absence of a temporary presidential appointment under subsection (a)(1).

National Labor Relations Board v. SW General, Inc. - filed Mar. 21, 2017
Cite as 2017 S.O.S. 15-1251_ed9g

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Monday, March 13, 2017

Betancourt v. Prudential Overall Supply

Betancourt v. Prudential Overall Supply (CA4/2 E064326 3/7/17) PAGA/Arbitration



Plaintiff and respondent Roberto Betancourt (Betancourt) sued defendant and appellant Prudential Overall Supply (Prudential).  Betancourt’s complaint sets forth one cause of action:  enforcement of the Labor Code under the Private Attorneys General Act (PAGA).  (Labor Code, § 2698.)   Prudential filed a motion to compel arbitration.   The trial court denied Prudential’s motion.  Prudential contends the trial court erred.  We affirm the judgment.

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Beck v. Stratton

Beck v. Stratton (CA2/4 B270826A, filed 2/14/17, pub. ord. 3/8/17) Wage and Hour/Attorneys’ Fees



The Labor Commissioner awarded respondent Anthony Stratton approximately $6,000 in unpaid wages and penalties against his former employer, appellant Thomas Beck.  Beck unsuccessfully appealed the award to the superior court under Labor Code section 98.2, subdivision (a).  Stratton then moved for attorney’s fees under Labor Code section 98.2, subdivision (c) 58 days later.  Beck opposed the motion as untimely, because Stratton filed it after the 30-day deadline applicable to fee motions in limited civil cases.  Stratton maintained the motion was timely because it was filed within the 60-day deadline applicable to fee motions in unlimited civil cases.  The superior court agreed with Stratton and awarded him $31,365 in attorney’s fees.



On appeal, Beck contends that the motion for attorney’s fees was untimely because the case was a limited civil case.  He further contends that, even if the motion was timely, the fee award was unreasonably high and unsupported by competent billing evidence.  We disagree with both arguments and affirm the judgment of the superior court.

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Somers v. Digital Realty Trust


 The panel affirmed the district court’s denial of the defendant’s motion to dismiss a whistleblower claim brought under the Dodd-Frank Act’s anti-retaliation provision.



Following the approach of the Second Circuit, rather than the Fifth Circuit, the panel held that, in using the term “whistleblower,” Congress did not intend to limit protections to those who disclose information to the Securities and Exchange Commission. Rather, the anti-retaliation provision also protects those who were fired after making internal disclosures of alleged unlawful activity under the Sarbanes-Oxley Act and other laws, rules, and regulations. The panel agreed with the Second Circuit that, even if the use of the word “whistleblower” in a last-minute addition to the anti-retaliation provision created uncertainty, an SEC regulation resolved any ambiguity, and was entitled to deference.



Dissenting, Judge Owens agreed with the Fifth Circuit. He wrote that King v. Burwell, 135 S. Ct. 2480 (2015) (holding that terms can have different operative consequences in different contexts), on which the majority and the Second Circuit relied in part, should be quarantined to the specific facts of that case.

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Glassdoor, Inc. v. Superior Court (Machine Zone, Inc.)

Software developer sued ex-employee, alleging that the ex-employee violated a non-disclosure agreement by disclosing confidential information in a review of the developer's product posted online. Order compelling the website operator to identify the author of the review was error because plaintiff failed to make a prima facie showing that defendant disclosed confidential information in violation of the nondisclosure agreement.

Glassdoor, Inc. v. Superior Court (Machine Zone, Inc.) - filed Mar. 10, 2017, Sixth District
Cite as 2017 S.O.S. 1249

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Tuesday, March 7, 2017

Flethez v. San Bernardino County Employees Retirement Association

When a retroactive award of service-connected disability retirement benefits under the County Employees Retirement Law of 1937 is ordered in an administrative mandamus proceeding, prejudgment interest under Civil Code Sec. 3287(a) should be calculated from the date the right to the pension vested, which is the date the retirement board to which an application is submitted has reviewed the submitted evidence and finally acts on the application, or at least has the opportunity to do so.

Flethez v. San Bernardino County Employees Retirement Association - filed Mar. 2, 2017
Cite as 2017 S.O.S. 1104

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Wednesday, March 1, 2017

Brandon v. Maricopa County

Brandon v. Maricopa County (9th Cir. 14-16910 2/23/17) First Amendment Retaliation



The panel reversed the district court’s judgment in favor of plaintiff following jury verdicts and vacated the attorneys’ fee award in plaintiff’s action brought under 42 U.S.C. § 1983 and state law alleging she was fired from the Maricopa County Attorney’s Office in retaliation for a statement she made to a local newspaper regarding a case she handled for the Maricopa County Sheriff’s Department.



The panel held that no reasonable jury could conclude that County risk management officials improperly interfered with plaintiff’s employment contract when they requested reassignment of her risk management cases to other lawyers after she made statements to the newspaper. Accordingly, the panel reversed the jury’s verdict against the defendant officials on the state law tortious interference with contract claim because, as a matter of law, defendants’ conduct was not improper.



The panel held that with the legally defined scope of an attorney’s duties in mind, it was obvious that plaintiff’s comments to the newspaper could not constitute constitutionally protected citizen speech under the principles from Dahlia v. Rodriguez, 735 F.3d 1060, 1074–76 (9th Cir. 2013). Accordingly, the panel reversed the jury’s First Amendment retaliation verdict.

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