Wednesday, July 5, 2017

McKeen-Chaplin v. Provident Savings Bank

Mortgage underwriters were entitled to overtime compensation for hours worked in excess of 40 per week, because their primary duty did not relate to the management or general business operations of their employer, a bank. The administrative employee exemption to the Fair Labor Standards Act Act's overtime requirements therefore did not apply.

McKeen-Chaplin v. Provident Savings Bank - filed July 5, 2017
Cite as 2017 S.O.S. 15-16758

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Demetris v. Transport Workers Union of America

A labor union's decision to distribute the proceeds of a bankruptcy settlement to all of its members unevenly did not violate its duty of fair representation because the union's conduct was not arbitrary, discriminatory, or in bad faith.

Demetris v. Transport Workers Union of America - filed July 5, 2017
Cite as 2017 S.O.S. 15-15229

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Tuesday, June 20, 2017

Kao v. Joy Holiday

Wage-and-hour requirements cannot be avoided by classifying an alien who has not yet received his work visa as a "trainee" where the company derives benefits from his efforts. In determining whether an employee is salaried, as opposed to hourly, nonmonetary benefits may not be considered in determining if recompense is at the minimum level for salaried employees.

Kao v. Joy Holiday - filed June 15, 2017, First District, Div. Three
Cite as 2017 S.O.S. 3108

Guido v. Mount Lemmon Fire District

A political subdivision of a State need not have 20 or more employees in order to qualify as an employer subject to the requirements of the Age Discrimination in Employment Act.

Guido v. Mount Lemmon Fire District - filed June 19, 2017
Cite as 2017 S.O.S. 15-15030

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Monday, June 12, 2017

Heimlich v. Shivji

Party was not required to present his Code of Civil Procedure Sec. 998 request for costs to an arbitrator before the arbitration award was rendered, because an offer which is not accepted "cannot be given in evidence upon the trial or arbitration." In the course of his request to confirm the arbitration award, party established that the arbitrator had refused to hear any evidence of opposing party's rejection of Sec. 998 offer. Party timely presented his Sec. 998 claim to the arbitrator, the arbitrator should have reached the merits of that claim, and the arbitrator's refusal to hear evidence of the Sec. 998 offer warranted partially vacating the arbitration award.

Heimlich v. Shivji - filed May 31, 2017, Sixth District
Cite as 2017 S.O.S. 2743 

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Wednesday, June 7, 2017

DiCarlo v. County of Monterey

Longevity performance supplement negotiated between county and union representing deputy sheriffs did not constitute compensation reportable to CalPERS as special compensation and was thus not properly included in benefits calculation.

DiCarlo v. County of Monterey - filed May 24, 2017, publication ordered June 5, 2017, Sixth District
Cite as 2017 S.O.S. 2879

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Advocate Health Care Network v. Stapleton

A benefits plan established by an organization whose "principal purpose" is religious qualifies as a "church plan" under ERISA, no matter who started it.

Advocate Health Care Network v. Stapleton - filed June 5, 2017
Cite as 2017 S.O.S. 16-74_5i36

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Tuesday, May 30, 2017

CRST, Inc. v. Superior Court (Lennig)

Employer's admission of vicarious liability for the negligence of its employee did not bar claim for punitive damages. Plaintiff failed to present a triable issue of fact with regard to its claim for punitive damages. Retention of driver after four preventable accidents did not constitute malice or oppression where the accidents were not serious. While evidence regarding driver's citation for failing to wear a seat belt raised an issue of lack of fitness, punitive damages were unavailable in the absence of evidence that a managing agent of defendant had "advance knowledge" of the citation.

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Wednesday, May 10, 2017

Mendoza v. Nordstrom, Inc. - filed May 8, 2017

Labor and Employment Law
Labor Code Secs. 551 and 552 guarantee workers a day of rest for each workweek. Periods of more than six consecutive days of work that stretch across more than one workweek are not per se prohibited. The Sec. 556 exemption to Secs. 551 and 552 for employees working shifts of six hours or less applies only to those who never exceed six hours of work on any day of the workweek. An employer causes its employee to go without a day of rest when it induces the employee to forgo rest to which he or she is entitled. An employer is not forbidden from permitting or allowing an employee, fully apprised of the entitlement to rest, independently to choose not to take a day of rest.

Mendoza v. Nordstrom, Inc. - filed May 8, 2017
Cite as 2017 S.O.S. 2372

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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.

O'Neal v. Stanislaus County Employees' Retirement Assn.

Appellants, Michael R. O’Neal, Rhonda Biesemeier, and Dennis J. Nasrawi, appeal from the trial court’s grant of summary judgment against them, as well as several related evidentiary rulings.  Appellants are members of the retirement system operated by respondent Stanislaus County Employees’ Retirement Association (StanCERA) through their retirement board (the board).  The intervener in this case, County of Stanislaus (County), is one of several employers required to fund the StanCERA retirement system.

In the aftermath of the recent recession, StanCERA implemented several changes to the actuarial calculations used to determine how to amortize unfunded liabilities within the system and chose to utilize so-called non-valuation funds, money not used to ensure the overall system was actuarially sound, to reduce or replace required employer contributions.  Appellants filed suit, arguing these actions constituted a breach of the constitutional fiduciary duties placed on the board of a county retirement system.  Specifically, appellants alleged the adoption of an amortization rate for unfunded liabilities which included a period of negative amortization violated state law and constitutional mandates.  Appellants further argued the use of non-valuation funds to reduce or replace required employer contributions did the same.

Upon cross-motions for summary judgment, the trial court concluded that none of the actions taken by the board were contrary to law and, finding no material issue of fact, determined summary judgment was properly granted to StanCERA and County.  Appellants have appealed this ruling and the related denial of their cross-motion for summary judgment.  Related to the summary judgment appeal, appellants raise several complaints with evidentiary rulings made by the trial court which led to the exclusion of appellants’ expert declarations and the introduction of evidence appellants contend should not have been considered on summary judgment.

For the following reasons we conclude the trial court correctly determined appellants were not entitled to summary judgment, but erred in determining no material issues of fact remained.  We therefore reverse the grant of summary judgment to respondents and remand for proceedings consistent with this opinion.  With respect to the evidentiary issues raised, we generally affirm the trial court, save for one issue, which has not been contested on appeal.

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Vaquero v. Stoneledge Furniture

Vaquero v. Stoneledge Furniture (CA2/7 B269657 2/28/17) Employees Paid on Commission/Wage and Hour

Are employees paid on commission entitled to separate compensation for rest periods mandated by state law?  If so, do employers who keep track of hours worked, including rest periods, violate this requirement by paying employees a guaranteed minimum hourly rate as an advance on commissions earned in later pay periods?  We answer both questions in the affirmative, and reverse the trial court’s ruling granting summary judgment in favor of the employer.

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Monday, February 27, 2017

Lemke v. Sutter Roseville Medical Center

Terminated employee's claim that her former employer's "managing agents and employees published false and defamatory statements concerning" her "profession, trade, business and qualifications" was barred by absolute litigation privilege where any such statements were made to Medical Board in connection with allegations of nursing misconduct.

Lemke v. Sutter Roseville Medical Center - filed Feb. 9, 2017, publication ordered Feb. 27, 2017, Third District
Cite as 2017 S.O.S. 1018

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Melamed v. Cedars-Sinai Medical Center

Plaintiff's action against hospital, its medical staff, and specific doctors involved in decision to summarily suspend his privileges after he allegedly operated on a child using improperly selected equipment was properly stricken under the anti-SLAPP statute. Plaintiff's claims arose out of a protected activity--the medical staff's peer review process--and plaintiff could not show a probability of success on the merits because each of his claims was barred, either by the statute of limitations or by failure to exhaust remedies by way of a petition for writ of mandamus.

Melamed v. Cedars-Sinai Medical Center - filed Feb. 27, 2017, Second District, Div. One
Cite as 2017 S.O.S. 1006

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Goonewardene v. ADP, LLC

Goonewardene v. ADP, LLC  (2016) 5 Cal.App.5th 154 (SC S238941/B267010 review granted 2/15/17) Payroll Service Provider/Joint Employer

Petition for review after the Court of Appeal reversed the dismissal of a civil action. This case presents the following issue: Does the aggrieved employee in a lawsuit based on unpaid overtime have viable claims against the outside vendor that performed payroll services under a contract with the employer? Votes: Cantil-Sakauye, C.J., Werdegar, Chin, Corrigan, Liu, Cuéllar and Kruger, JJ.

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Zetwick v. County of Yolo

Where correctional officer alleged sheriff created sexually hostile work environment, summary judgment for defendants was error because a reasonable juror could conclude that differences in the sheriff's hugging of men and women were not, as the defendants argued, just "genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and the opposite sex." Hugging can create a hostile or abusive workplace when it is unwelcome and pervasive, and summary judgment on a hostile work environment claim is appropriate only if the defendant's conduct was neither severe nor pervasive enough to alter the conditions of the plaintiff's employment.

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Wednesday, February 22, 2017

Hamilton v. Orange County Sheriff's Dept.

Hamilton v. Orange County Sheriff's Dept. (CA4/3 G051773 2/7/17) Civil Procedure/Employment Discrimination

This appeal arises from an uncontested summary judgment.  Plaintiff contends the court erred by not accepting the parties’ stipulation to continue the hearing on defendant’s summary judgment motion and the trial for 60 days.  The parties had agreed to these continuances to allow plaintiff to take depositions of the witnesses whose declarations had been submitted in support of defendant’s pending summary judgment motion.  Plaintiff had timely noticed these depositions but they could not go forward because defendant’s counsel was engaged in trial.  The court had earlier granted defendant’s ex parte motion to continue the trial so that defendant’s summary judgment motion could be heard.  Under these circumstances, we conclude the court abused its discretion by failing to accommodate counsel’s joint request for a further 60-day continuance.  Accordingly, we reverse the judgment.

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McLane Co. v. EEOC

McLane Co. v. EEOC (US 15-1248 Oral Argument Transcript 2/21/17) EEOC Subpoena/Standard of Review

Whether a district court’s decision to quash or enforce an EEOC subpoena should be reviewed de novo, which only the Ninth Circuit does, or should be reviewed deferentially, which eight other circuits do, consistent with this Court’s precedents concerning the choice of standards of review.

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Tuesday, February 21, 2017

Roy Allan Slurry Seal, Inc. v. American Asphalt South, Inc.

For purposes of the tort of intentional interference with prospective economic advantage, the requirement that the plaintiff establish the existence of an economic relationship with a third party that contains the probability of future economic benefit to the plaintiff was not met where the plaintiff was a bidder for a public works contract and the third party was the public entity soliciting bids. Under rules unique to public works contracts--where the public entities retained broad discretion to reject all bids, bids were sealed, there were no postsubmission negotiations, and the public entities could give no preference to any bidder based on past dealings and were required to accept the lowest responsible bid--plaintiffs had at most a hope for a future benefit, not a probability of one.

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Tuesday, February 14, 2017

Daniel v. Wayans

Daniel v. Wayans (CA2/1 B261814 & B263950 2/9/17) Actor Racial Harassment/First Amendment Creative Process

On September 4, 2013, Pierre Daniel (Daniel), an actor, worked as an extra in a movie entitled, A Haunted House 2 (Open Road Films 2014).  Marlon Wayans (Wayans) co-wrote, produced, and starred in the movie.  In August 2014, Daniel sued Wayans and others, alleging, inter alia, that he was the victim of racial harassment because during his one day of work on the movie he was compared to a Black cartoon character and called “ ‘[n]igga.’ ”  In response, Wayans, pursuant to Code of Civil Procedure  section 425.16, moved to strike Daniel’s claims against him as a SLAPP suit (strategic lawsuit against public participation), arguing that all of Daniel’s claims arose from Wayans’s constitutional right of free speech because the core injury-producing conduct arose out of the creation of the movie and its promotion over the Internet.  The trial court agreed with Wayans and also found that Daniel had failed to establish the probability that he would prevail on any of his claims against Wayans.  As a result, the trial court entered judgment in favor of Wayans and awarded him his attorney fees.

On appeal, Daniel argues that the trial court erred with regard to its determination of the threshold issue in Wayans’s anti-SLAPP motion—that is, the conduct at issue was not part of the “ ‘creative process’ ” inherent in making the movie because it occurred when the cameras were not rolling and, as a result, did not involve the right of free speech or an issue of public interest.  In the alternative, Daniel contends that even if the conduct at issue implicated Wayans’s right to free speech, he presented sufficient evidence to the trial court to establish a probability of prevailing.  We find both of Daniel’s arguments to be unpersuasive.  Accordingly, we affirm the judgment.

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Wednesday, February 8, 2017

Vasserman v. Henry Mayo Newhall Memorial Hosp.

Vasserman v. Henry Mayo Newhall Memorial Hosp. (CA2/4 B267975 2/7/17) Arbitration

Plaintiff Tanya Vasserman sued her former employer, Henry Mayo Newhall Memorial Hospital (the Hospital) for violations of the California Labor Code and other statutes relating to meal and rest breaks, unpaid wages, and unpaid overtime compensation.  The Hospital argued that the collective bargaining agreement relevant to Vasserman’s employment required her to arbitrate her claims. The trial court denied the Hospital’s motion to compel arbitration, and the Hospital appealed.

We affirm.  The dispute before us is not over Vasserman’s substantive rights, but instead the forum in which those rights are to be determined. If those rights are to be determined only by arbitration, a collective bargaining agreement must make that clear.  The collective bargaining agreement here required arbitration of claims arising under the agreement, but it did not include an explicitly stated, clear and unmistakable waiver of the right to a judicial forum for claims based on statute. The trial court therefore correctly denied the Hospital’s motion to compel arbitration.

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Monday, February 6, 2017

Wilson v. Cable News Network Inc.

Wilson v. Cable News Network Inc. (CA2/1 B264944 12/13/16) Anti-SLAPP

The trial court granted defendants’ anti-SLAPP motion (Code Civ. Proc., § 425.16) against a former employee alleging discrimination, retaliation, wrongful termination, and defamation.  Plaintiff contends the defendants’ conduct and statement did not arise from an act in furtherance of their right of free speech or to petition for redress of grievances, and were not in connection with an issue of public interest, and therefore fell outside the scope of the anti-SLAPP statute.  We agree and reverse.  This is a private employment discrimination and retaliation case, not an action designed to prevent defendants from exercising their First Amendment rights.  Defendants may have a legitimate defense but the merits of that defense should be resolved through the normal litigation process, with the benefit of discovery, and not at the initial phase of this action.

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Flores v. Nature's Best Distribution

Flores v. Nature's Best Distribution (CA4/3 G052410A, filed12/2/16, pub. ord. 12/27/16, reposted by court for correct format 12/28/16) Arbitration

Plaintiff Julie Flores filed a lawsuit against Nature’s Best Distribution, LLC, Nature’s Best, KeHe Distributors, Inc., and KeHe Distributors, LLC (collectively referred to as defendants), alleging several claims under the California Fair Employment and Housing Act (Gov. Code, § 12940 et seq.).  Defendants filed a petition to compel arbitration based on evidence that plaintiff signed an agreement for alternative dispute resolution (the Agreement).  The trial court denied the petition.  Defendants contend the trial court erroneously concluded defendants failed to prove plaintiff agreed to arbitrate her claims and that the arbitration provision contained in the Agreement was unenforceable because it is unconscionable.


We affirm.  Defendants failed to prove plaintiff agreed to submit her claims to final and binding arbitration

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Friday, February 3, 2017

Mayes v. WinCo Holdings, Inc

Individual Rights
Whether defendant grocery company fired plaintiff for taking a stale cake from the store bakery to share with fellow employees and telling a loss prevention investigator that management had given her permission to do so, or used that as a pretext for gender discrimination, was a disputed question of fact. Plaintiff offered ample direct evidence of discriminatory animus, as well as specific and substantial indirect evidence challenging the credibility of defendant's motives. As to plaintiff's claim for COBRA benefits, the genuine dispute of fact regarding the true reason for the plaintiff's termination precluded summary judgment, because if defendant fired plaintiff for discriminatory reasons--rather than gross misconduct--she could be entitled to benefits.

Mayes v. WinCo Holdings, Inc. - filed Feb. 3, 2017
Cite as 2017 S.O.S. 14-35396

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Poublon v. C.H. Robinson

Poublon v. C.H. Robinson (9th Cir. 15-55143 2/3/17) Arbitration/PAGA

The panel reversed the district court’s order denying defendants’ motion to stay proceedings, compel arbitration of claims arising out of the plaintiff’s employment, and dismiss class and representative claims.

The panel reversed the district court’s holding that the dispute resolution provision in an Incentive Bonus Agreement signed by the plaintiff was both procedurally and substantively unconscionable under California law. The panel concluded that, even though the Incentive Bonus Agreement was an adhesion contract, there was a low degree of procedural unconscionability. As to substantive unconscionability, the defendants did not contest the district court’s holding that a judicial carve-out provision was substantively unconscionable. The panel held that a waiver of representative claims was not substantively unconscionable even though the waiver of the plaintiff’s claim under California’s Private Attorneys General Act was not enforceable under California law. A venue provision, a confidentiality provision, a sanctions provision, a unilateral modification provision, and limitations on discovery also were not substantively unconscionable.

The panel concluded that the dispute resolution provision was valid and enforceable once the judicial carve-out was extirpated and the waiver of representative claims was limited to non-PAGA claims. The panel remanded the case to the district court.

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Tibble v. Edison International

Tibble v. Edison International (9th Cir. 10-56406 12/16/16) ERISA

On remand from the Supreme Court, the en banc court vacated the district court’s judgment in favor of an employer and its benefits plan administrator on claims of breach of fiduciary duty in the selection and retention of certain mutual funds for a benefit plan governed by ERISA.

The court of appeals had previously affirmed the district court’s holding that the plan beneficiaries’ claims regarding the selection of mutual funds in 1999 were time-barred under

the six-year limit of 29 U.S.C. § 1113(1). The Supreme Court vacated the court of appeals’ decision, observing that federal law imposes on fiduciaries an ongoing duty to monitor investments even absent a change in circumstances.

Rejecting defendants’ contention that the beneficiaries waived the ongoing-duty-to-monitor argument, the en banc court held that the beneficiaries did not forfeit the argument either in the district court or on appeal. Rather, defendants themselves failed to raise the waiver argument in their initial appeal, and thus forfeited this argument.

The en banc court distinguished Phillips v. Alaska Hotel & Rest. Emps. Pension Fund, 944 F.2d 509 (9th Cir. 1991), which held that when a fiduciary violated a continuing duty over time, the three-year limitations period set forth in 29U.S.C. § 1113(2) began when the plaintiff had actual

knowledge of a breach in a series of discrete but related breaches. The panel held that Phillips did not apply to the continuing duty claims at issue under § 1113(1). Thus, only a “breach or violation,” such as a fiduciary’s failure to conduct its regular review of plan investments, need occur within the six-year statutory period of § 1113(1); the initial investment need not be made within the statutory period.

Looking to the law of trusts to determine the scope of defendants’ fiduciary duty to monitor investments, the en banc court held that the duty of prudence required defendants to reevaluate investments periodically and to take into account their power to obtain favorable investment products, particularly when those products were substantially identical—other than their lower cost—to products they had already selected.

The en banc court vacated the district court’s decisions concerning the funds added to the ERISA plan before 2001 and remanded on an open record for trial on the claim that, regardless of whether there was a significant change in circumstances, defendants should have switched from retail class fund shares to institutional-class fund shares to fulfill their continuing duty to monitor the appropriateness of the trust investments. The en banc court also directed the district court to reevaluate its award of costs and attorneys’ fees in light of the Supreme Court’s decision and the en banc court’s decision.

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Armin v. Riverside Community Hospital

Armin v. Riverside Community Hospital (CA4/3 G052125, filed 11/17/16, mod. 12/19/16) Hospital Peer Review & Whistleblower Statute

On November 18, 2016, the Fenton Law Group moved to modify the caption of our opinion filed November 16, 2016, to delete the reference to the law firm of Fenton Nelson, on the ground that when appellant Sean Armin’s opening brief was filed, Fenton Nelson “had either already been dissolved, or was in the process of being dissolved.”  We are unable to grant this request because the California Style Manual states, in section 5:15, that if a law firm has appeared for a client on appeal, it should be listed in the caption.  In the present case, Appellant’s opening brief, filed March 19, 2014, was filed by Fenton Nelson, LLP.

On December 1, 2016, defendants Riverside Community Hospital and defendant and Medical Staff of Riverside Community Hospital (the Hospital) filed a petition for rehearing.  However, on December 12, 2016, the attorneys for the various parties in the case, including the Hospital, Armin and the individual doctors, filed a notice of settlement.  And on that same day, attorneys for the Hospital also filed a withdrawal of the request for rehearing.  The Hospital’s withdrawal request, however, states that the Hospital does not withdraw its “request made in the Petition for Rehearing that the identified sections of the Opinion be decertified for publication, or ordered depublished, for reasons stated in the Petition for Rehearing.” 


In its now withdrawn petition for rehearing the Hospital identifies an error on page 3 of the slip opinion, namely “FEHA” as the opinion now reads, should instead be “Unruh Civil Rights Act.”  Independent of the withdrawal of the petition, we hereby modify the slip opinion on page 3, second full paragraph, first sentence, to substitute the words “Unruh Civil Rights Act” for “FEHA.”


That leaves the question of the Hospital’s existing requests for decertification of “identified sections” of the opinion.  The problem here is that the Hospital does not – at least not with precision – identify those parts of the slip opinion that might readily be excluded from an otherwise published opinion without directly affecting the judgment that Armin’s Health and Safety Code section 1278.5 (section 1278.5) action against the Hospital might proceed as against the anti-SLAPP motion filed by the Hospital.  The one part most easily separated from the balance of the opinion, part III.B., involving Armin’s section 1278.5 claims against individual physicians and holding those individual physicians are immune from Armin’s section 1278.5 claims, is not challenged in the December 1, 2016 petition for rehearing.

Functionally, then, it appears that the Hospital wants to maintain its petition for rehearing and withdraw it too.  Most of the petition for rehearing consists not of a challenge to the main holding of the opinion – that administrative exhaustion of peer review proceedings is not a prerequisite to a section 1278.5 action – but rather consists of arguments that are fact-specific and peculiar to this now-settled action.  Because these arguments are record-specific, we must conclude that by withdrawing its request for rehearing, these arguments are being waived.


However, the Hospital’s petition has pointed out another area in which the opinion might be improved.  In light of the Hospital’s (now withdrawn) petition for rehearing, we hereby modify the opinion in the following particular:


On page 22 of the slip opinion, in the first paragraph of section 4, after the sentence ending with the words “whistleblowing claim is based on his December 2011 conversation with the hospital’s COO in which he complained about Douglas and Clark’s lackadaisical approach to urgent care” insert the following new footnote (and renumber the remaining footnotes accordingly):


“Under subdivision (i) of section 1278.5, a ‘health care facility’ – and that includes the Hospital here – is defined to include both ‘the facility’s administrative personnel’ such as the hospital’s COO here, and its ‘medical staff.’”  This modification does not affect the judgment.

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Chan Healthcare v. Liberty Mutual

The panel (1) dismissed a petition for permission to appeal the district court’s remand order in a class action case founded on federal question jurisdiction and (2) vacated the district court’s order granting attorneys’ fees.

Joining the Fifth, Sixth, and Eighth Circuits, the panel held that the interlocutory review provision set forth in the Class Action Fairness Act, 28 U.S.C. § 1453(c)(1), is limited to orders granting or denying remand of diversity class actions brought and removed under CAFA. Therefore, under 28 U.S.C. § 1447(d), the panel lacked jurisdiction to review the district court’s order remanding the case to the state court from which it had been removed.

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Thursday, February 2, 2017

Teutscher v. Woodson

Teutscher v. Woodson (9th Cir. 13-56411 8/26/16) Retaliatory Discharge Remedies/State Law & ERISA

The panel reversed the district court’s award of front pay and reinstatement as equitable remedies under the Employee Retirement Income Security Act for a retaliatory discharge after the plaintiff had already sought and been awarded by a jury front pay damages to compensate for the same harm.

The plaintiff went to trial against his former employer on retaliatory discharge claims under both state law and ERISA. The jury awarded him lump-sum damages on his state law claims, and the district court then entered judgment on his ERISA claim. Even though the jury had been instructed to include front pay in its damages award, the district court granted the plaintiff additional equitable remedies consisting of reinstatement as well as front pay until reinstatement occurred.

The panel held that the equitable front pay award conflicted with the jury’s front pay award in violation of the Seventh Amendment right to a jury trial. In addition, although the reinstatement remedy did not necessarily conflict with the fact findings implicit in the jury’s verdict, it nevertheless was improper because the plaintiff waived that relief when he elected to seek the duplicative front pay remedy from the jury.

Judge M. Smith concurred in the judgment. However, he disagreed with the majority’s Seventh Amendment analysis. Judge M. Smith would hold instead that the district court’s equitable remedy was an abuse of discretion because the district court did not give reasons why additional equitable relief was appropriate after the jury had already compensated the plaintiff for the monetary harm he suffered.

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Hernandez v. Ross Stores

Hernandez v. Ross Stores (CA4/2 E064026, filed 12/7/16, pub. ord. 1/3/16) Arbitration/PAGA

Defendant and appellant Ross Stores, Inc. (Ross) appeals the denial of its motion to compel arbitration.  Plaintiff and respondent Martina Hernandez was employed at a Ross warehouse in Moreno Valley.  She filed a single-count representative action under the California Private Attorney General Act, Labor Code section 2698 et. seq. (PAGA) alleging Ross had violated numerous Labor Code laws, and sought to recover PAGA civil penalties for the violations.


Ross insisted that Hernandez must first arbitrate her individual disputes showing she was an “aggrieved party” under PAGA and then the PAGA action could proceed in court.  The trial court found, relying on Iskanian v. CLS Transportation Los Angeles LLC (2014) 59 Cal.4th 348, 387 (Iskanian) that the PAGA claim was a representative action brought on behalf of the state and did not include individual claims.  As such, it denied the motion to compel arbitration because there were no individual claims or disputes between Ross and Hernandez that could be separately arbitrated.


On appeal, Ross raises the issue of whether under the Federal Arbitration Act (FAA) an employer and employee have the preemptive right to agree to individually arbitrate discreet disputes underlying a PAGA claim while leaving the PAGA claim and PAGA remedies to be collectively litigated under Iskanian.  We uphold the trial court’s denial of the motion to compel arbitration.

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United States ex rel. Kelly v. Serco

United States ex rel. Kelly v. Serco (9th Cir. 14-56769 1/12/17) False Claims Act/Qui Tam

The panel affirmed the district court’s summary judgment in favor of the defendant in an action under the False Claims Act.

The plaintiff alleged that his former employer Serco, Inc., a technology and project management services provider, submitted fraudulent claims for payment to the United States for work done under a government contract. The Department of Defense, Navy Space and Naval Warfare Systems Command (SPAWAR), contracted with Serco for work on the Advanced Wireless Systems Spectrum Relocation Project, a project to upgrade the wireless communications systems situated along the United States-Mexico border for the Department of Homeland Security, Customs and Border Protection (DHS). The interagency contract between SPAWAR and DHS required SPAWAR to implement a cost and progress tracking system known as an earned value management (EVM) system. The services provided by Serco were covered under its Naval Electronic Surveillance Systems contract with SPAWAR.

The panel affirmed the district court’s summary judgment on a claim that Serco submitted false or fraudulent claims for payment under an implied false certification theory of liability under the False Claims Act. The panel applied Universal Health Servs., Inc. v. United States ex rel. Escobar, 136 S. Ct. 1989 (2016), which held that a government contract need not expressly designate a requirement as a condition of payment in order to trigger liability under the theory of implied certification. Instead, what matters is whether the defendant knowingly violated a requirement that it knew was material to the government’s payment decision. To establish liability, the defendant’s claim for payment must make specific representations about the goods or services provided, and the defendant’s failure to disclose material statutory, regulatory, or contractual requirements must make those representations misleading half-truths. The panel held that the plaintiff did not satisfy the standard for materiality set forth in Escobar because there was no genuine issue of material fact as to the materiality of Serco’s compliance with the American National Standards Institute/Electronic Industries Alliance Standard 748 (ANSI-748) or its obligation to provide valid EVM reports.

The panel also affirmed the district court’s summary judgment on claims that Serco violated the False Claims Act by making false records material to a false or fraudulent claim, conspired to violate the False Claims Act, wrongfully retained overpayments, and wrongfully terminated the plaintiff in violation of public policy under California state law.

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Wednesday, February 1, 2017

Bareno v. San Diego Community College Dist.

Bareno v. San Diego Community College Dist. (CA4/1 D069381 1/13/17) California Family Rights Act

Plaintiff Leticia Bareno appeals from a judgment entered in favor of defendants San Diego Miramar College (the College), San Diego Community College District, and San Diego Community College District Administrative Facilities Corporation.


In early 2013, Bareno was disciplined by her employer, the College, in relation to her employment as an administrative assistant.  Thereafter, Bareno required medical treatment and accompanying leave from work, and she requested medical leave from her supervisor.  Bareno provided medical certification for this request for leave.  After the time frame specified in Bareno's initial request for leave had ended, Bareno continued to be absent from work.  Bareno had attempted to e-mail her supervisor a recertification of her need for additional medical leave, but the College claimed that Bareno's supervisor did not receive any such request from Bareno for additional leave.  As a result, after Bareno continued to be absent from work for an additional five consecutive days, the College took the position that she had "voluntarily resigned."  After Bareno learned that the College considered her to have voluntarily resigned as a result of her continued absence from work, Bareno attempted to provide the College with information regarding the medical necessity of the leave that she had taken.  The College refused to reconsider its position.


Bareno filed suit against all three defendants, alleging that in effectively terminating her employment, SDCCD retaliated against her for taking medical leave, in violation of Government Code section 12945.2, the Moore-Brown-Roberti Family Rights Act, commonly referred to as the California Family Rights Act (CFRA).  (See Cal. Code Regs., tit. 2, § 11087, subd. (b).)   SDCCD moved for summary judgment on Bareno's sole claim for retaliation under CFRA, and the trial court granted the motion.


On appeal, Bareno contends that the trial court erred in granting summary judgment on her CFRA retaliation claim because there remain triable issues of material fact in dispute.  We agree.  Because there remain material issues in dispute and the record is capable of supporting a judgment in favor of Bareno, the trial court erred in granting summary judgment in favor of SDCCD.  We therefore reverse the judgment and remand the matter for further proceedings.

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Silva v. See's Candy Shops

Silva v. See's Candy Shops (CA4/1 D068136, filed 12/9/16, pub. ord. 1/5/16) PAGA/Rounding/Grace Periods

Pamela Silva filed an action against her former employer, See's Candy Shops, Inc., alleging wage and hour violations.  Silva brought the action in her individual capacity, on behalf of a class of See's Candy employees, and on behalf of aggrieved workers under the Private Attorney General Act of 2004 (PAGA).  The court certified a class on Silva's claims challenging two of See's Candy's policies pertaining to the calculation of employee work time: (1) a rounding policy, which calculates timeclock punches to the nearest tenth of an hour; and (2) a grace-period policy, which permits employees to clock in 10 minutes before and after a shift, but calculates work time from the employee's scheduled start/end times.


In a prior appeal, we granted See's Candy's writ petition challenging the trial court's dismissal of See's Candy's affirmative defense that its rounding policy was lawful.  (See's Candy Shops, Inc. v. Superior Court (2012) 210 Cal.App.4th 889 (See's Candy).)  After remand, See's Candy successfully moved for summary adjudication on Silva's PAGA cause of action.  In a later proceeding, the court granted summary judgment in See's Candy's favor on all of Silva's remaining claims.


In this appeal, Silva challenges the summary adjudication order on her PAGA claim and the summary judgment on all remaining causes of action.  She raises numerous contentions.  We determine the court erred in granting summary judgment with respect to certain of Silva's individual claims, but the court properly entered judgment in See's Candy's favor on all remaining claims, including the PAGA cause of action and the class-certified claims.

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Orange Co. Water Dist. v. Public Employment Relations Bd.

The Public Employment Relations Board (the Board or PERB) concluded the Orange County Water District (the District) committed an unfair practice, in violation of Government Code section 3502.5, when it refused to consent to an election petitioned for by the recognized employee organization seeking to implement a so-called modified agency shop.  (All further statutory references are to the Government Code unless otherwise specified.)  An agency shop is defined in section 3502.5, subdivision (a) as an arrangement that requires an employee, as a condition of continued employment, to either join the recognized employee organization or pay the organization a service fee.  The proposed agency shop in this case is referred to as a “modified” agency shop because it would apply only to future employees hired into the bargaining unit and not apply to current employees.  The District filed a petition for a writ of extraordinary relief from the Board’s decision under section 3509.5, subdivision (a).  We granted a writ of review.

We deny the petition for extraordinary relief.  For the reasons we explain post, we hold that section 3502.5 authorizes the proposed modified agency shop.

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Monday, January 30, 2017

Montano v. The Wet Seal Retail, Inc

Where arbitration agreement purported to bar arbitration of representative claims, including claims under the Labor Code Private Attorney Generals Act, contrary to the state's public policy, and the agreement contained a non-severability clause, trial court correctly ruled that the agreement was unenforceable as to all of the plaintiff's claims. Where there had been no stay of proceedings, trial court was within its authority in ruling on discovery motion at the same time it denied petition to compel arbitration.

Montano v. The Wet Seal Retail, Inc. - filed Jan. 17, 2015, publication ordered Jan. 30, 2017, Second District, Div. Four
Cite as 2017 S.O.S. 482

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Labertew v. Langemeier

Labertew v. Langemeier (9th Cir. 14-15879 1/20/17) Garnishment of Wages/Removal

The panel vacated the district court’s judgment discharging insurers, and remanded for further proceedings in a garnishment proceeding arising out of an insurance settlement and assignment [of an employment dispute].

In the underlying settlement, the plaintiffs and defendant stipulated to a judgment against the defendant for $1.5 million, and defendant assigned to the plaintiffs her rights against her liability insurers. Plaintiffs applied in state court for writs of garnishment against the insurers. The insurers removed the state garnishment proceedings to federal district court.

The district court, pursuant to Fed. R. Civ. P. 69, applied Arizona garnishment law, and held that because the plaintiffs missed their ten day window for objecting, the garnishment failed and the garnishees/insurers were discharged.

The panel held that the garnishment proceeding was removable, and the district court had jurisdiction. The panel held that under Swanson v. Liberty National Insurance Co., 353 F.2d 12 (9th Cir. 1965), the garnishment proceeding against the insurers, for purposes of removal, was a separate and independent civil action from the suit by the plaintiffs in the underlying action; and as such, it was removable.

The panel held that there was no federal judgment in this case upon which to execute. The panel noted that the only judgment was in the Superior Court of the State of Arizona. The panel further held that the necessary predicate for application of Fed. R. Civ. P. 69 was a judgment in the federal district court in which execution was sought. The panel also held that there was no state judgment against the insurance companies that could be registered and enforced in federal court.

The panel held that the district court had discretion under Fed. R. Civ. P. 81(c)(2) to order repleading. The panel held that the Arizona laws for garnishment proceedings, were, upon removal, supplanted by the federal rules. The panel also held that the district court may order repleading because this case was in substance a claim by the insureds’ assignee against the insurers for breaching their obligations under their insurance policies, and the claims in the state court pleadings were no longer at issue.

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Syed v. M-I, LLC

Syed v. M-I, LLC (9th Cir. 14-17186 1/20/17) Fair Credit Reporting Act/Liability Waiver by Employer

The panel reversed the district court’s dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6) of an action under the Fair Credit Reporting Act.

The panel held that a prospective employer violates 15 U.S.C. § 1681b(b)(2)(A) when it procures a job applicant’s consumer report after including a liability waiver in the same document as a statutorily mandated disclosure. The panel also held that, in light of the clear statutory language that the disclosure document consist “solely” of the disclosure, a prospective employer’s violation of § 1681b(b)(2)(A) is “willful” when the employer includes terms in addition to the disclosure, such as the liability waiver here, before procuring a consumer report or causing one to be procured.

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Alaska Airlines v. Schurke

Alaska Airlines v. Schurke (9th Cir. 13-35574 1/25/17) Railway Labor Act Preemption/Flight Attendants’ Family Leave

The panel reversed the district court’s summary judgment in favor of the defendants in a labor law suit brought by Alaska Airlines, Inc.

A flight attendant claimed entitlement under the Washington Family Care Act to reschedule leave to care for her child who was ill. She and her union filed an administrative complaint with the State of Washington Department of Labor and Industries, which determined that the flight attendant was entitled to use her December vacation leave to care for her child in May.

The panel held that the Railway Labor Act preempted the flight attendant’s claim under the Washington Family Care Act, which provides that entitlement to leave is to be defined by an employee’s collective bargaining agreement. The panel concluded that the state right and the collective bargaining agreement were inextricably intertwined. Under the Railway Labor Act, the claim was a “minor dispute” about defining the rights guaranteed by the flight attendant’s collective bargaining agreement. She therefore was required to use the collective bargaining agreement grievance procedure to resolve her claim.

Dissenting, Judge Christen wrote that the flight attendant’s claim was not preempted because the right she asserted arose from the Washington Family Care Act, if it existed at all, and did not depend upon the collective bargaining agreement.

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Reynaga v. Roseburg Forest Products

District court erred in granting summary judgment to defendant employer as to the plaintiff's hostile work environment claim. A reasonable trier of fact could conclude that supervisor's conduct was sufficiently severe or pervasive to create a hostile work environment, and the employer knew about the supervisor's conduct and failed to take corrective remedial action. Plaintiff demonstrated the necessary prima facie case to survive summary judgment on his disparate treatment claim, based on the employer terminating his employment and breaking into his locker. Genuine disputes of fact existed as to whether employer's actions were motivated by intent to discriminate against plaintiff based on his Mexican origin, and as to whether plaintiff was legitimately fired for refusing work or was retaliated against for engaging in activity protected by Title VII.

Reynaga v. Roseburg Forest Products - filed Jan. 26, 2017
Cite as 2017 S.O.S. 14-35028

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Tuesday, January 10, 2017

Navarro v. Encino Motorcars

Automobile dealerships must pay overtime compensation to service advisors.

Navarro v. Encino Motorcars - filed Jan. 9, 2017 

Cite as 2017 S.O.S. 13-55323 

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Tuesday, January 3, 2017

Augustus v. ABM Security Services

State law prohibits on-duty and on-call rest periods. During required rest periods, employers must relieve their employees of all duties and relinquish any control over how employees spend their break time.

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