Friday, September 22, 2017

Vallejo Police Officers Association v. City of Vallejo

Language in a memorandum of understanding between a city and labor union did not confer a vested right to fully-paid retiree medical premiums where the term of the agreement was finite. The subjective understandings of individuals, as well as understandings communicated outside the MOU approval process, are not admissible as evidence of the city's intent. A city's history of paying the full cost of retiree medical premiums does not imply a right that such payments will continue, absent a showing of legislative intent. A city's refusal to change its position as to the amount it was willing to contribute towards retiree medical premiums does not in itself constitute surface bargaining. City also did not rush to declare an impasse where it engaged in negotiations for over a year and both parties were committed to their respective positions on the primary issue of contention between them.

Vallejo Police Officers Association v. City of Vallejo - filed Aug. 22, 2017, publication ordered Sept. 21, 2017, First District, Div. Two
Cite as 2017 S.O.S. 4734

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Monday, September 18, 2017

Okorie v. Los Angeles Unified School Dist.

In 2015, Dioka Okorie (Okorie) sued his employer, Los Angeles Unified School District (LAUSD) and two of his supervisors, Jacqueline Hughes (Hughes) and Cynthia Jackson (Jackson) (collectively, Defendants), alleging, among other things, discrimination, harassment, and retaliation.  In response, Defendants filed a special motion to strike the complaint pursuant to section 425.16 of the Code of Civil Procedure —a so-called anti-SLAPP motion —which the trial court granted.

On appeal, Okorie and his wife, Nkeiru Okorie (collectively, Plaintiffs) advance two principal arguments.  First, they contend that the trial court erred in granting the anti-SLAPP motion because the complaint contained allegations regarding both protected and unprotected activities by the Defendants.   Second, they argue that the motion should have been denied because they demonstrated a likelihood of success on certain of their causes of action.  We disagree with both arguments and, accordingly, affirm.

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Moonin v. Tice

The panel affirmed the district court’s order denying qualified immunity to defendant Nevada Highway Patrol Major Kevin Tice and granting partial summary judgment to appellant, a Nevada Highway Patrol officer, in an action brought pursuant to 42 U.S.C. § 1983 asserting that a Nevada Highway Patrol policy, announced in an email sent by defendant Tice, violated the First Amendment.

This action arose from a dispute regarding the management of the Nevada Highway Patrol canine drug detection unit. Plaintiffs alleged that certain Nevada Highway Patrol officers sought to undermine the effectiveness of the K9 program, and that the policy announced by Tice, prohibiting officers from discussing the program with any non-departmental entity or person, was designed to prevent officers from making the problems in the K9 program known to the public.

The panel held that sweeping policy imposed by Tice’s email violated the First Amendment. The policy covered speech undertaken outside the officers’ official duties and on matters of public concern. The panel held that Tice had failed to show any past disruptions sufficient to justify the expansive policy, nor did he demonstrate that any harms anticipated were real, not merely conjectural. The panel further held that it was clearly established in 2011, when Tice sent the email, that such a broad restriction on employee speech could not survive First Amendment scrutiny. Accordingly, Tice was not entitled to qualified immunity.

The panel affirmed the district court’s grant of partial summary judgment to appellant on the First Amendment claim after concluding that the relevant facts were not in dispute and the legal issues were identical to those raised in the qualified immunity analysis.

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Stoetzl v. State of California

Plaintiffs are current and former correctional peace officers who work or worked at various state correctional facilities.  They brought these coordinated class actions alleging they were improperly denied pay for time they spent under their employer’s control before and after their work shifts.  Ruling that plaintiffs’ entitlement to overtime pay is controlled by federal, rather than California, law, the trial court entered judgment for defendants.  We shall reverse the judgment in part as to the subclass of unrepresented employees and affirm as to the subclass of represented employees.

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Cortez v. Doty Bros. Equipment Co.

Gabriel Cortez sued his former employer Doty Bros. Equipment Company for Labor Code and wage and hour violations on behalf of himself and a putative class of employees and former employees.  Cortez’s complaint included a related representative claim under the Labor Code Private Attorneys General Act of 2004 (PAGA) (Lab. Code, § 2698 et seq.).  On September 19, 2014 the superior court granted Doty Bros.’ petition to compel arbitration of Cortez’s individual claims pursuant to an arbitration provision in the collective bargaining agreement (CBA) governing his employment and severed and stayed his PAGA claim, which was not subject to arbitration.  The court reserved questions concerning the arbitrability of the class claims for the arbitrator.  On November 19, 2014 we summarily denied Cortez’s petition for a writ of mandate challenging the court’s order compelling arbitration.


Cortez and Doty Bros. then stipulated to allow the superior court, rather than the arbitrator, to determine the arbitrability of the class claims.  On March 23, 2015, after substantial briefing and a hearing on this question, the court dismissed the class claims as unauthorized under the CBA.  On April 1, 2015 Cortez filed a notice of appeal purporting to appeal from the March 23, 2015 order dismissing his class claims and the September 19, 2014 order compelling arbitration of his individual claims.  Cortez argued in his appellate briefs that this court had jurisdiction to review both rulings under the death knell doctrine.


While Cortez’s appeal was pending, the appellate courts in Munoz v. Chipotle Mexican Grill, Inc. (2015) 238 Cal.App.4th 291, 310 (Munoz) and Miranda v. Anderson Enterprises, Inc. (2015) 241 Cal.App.4th 196, 201-202 (Miranda) held the death knell doctrine did not apply to the denial of class certification or dismissal of class claims while a plaintiff’s PAGA claim remained pending in the trial court.  Concerned about the viability of his initial appeal, Cortez voluntarily dismissed his PAGA claim with prejudice on March 30, 2016 and filed a second notice of appeal on May 20, 2016, again identifying the September 19, 2014 order compelling arbitration and the March 23, 2015 order dismissing all class claims as the orders subject to appellate review.  We consolidated the two appeals.


Cortez contends this court has jurisdiction under the death knell doctrine to review the March 2015 dismissal of his class claims either because the outstanding PAGA claim did not defeat that order’s appealability under the death knell doctrine or because he removed any bar to appellate jurisdiction when he dismissed his PAGA claim in March 2016 and filed a new notice of appeal.  Cortez also contends the September 2014 order compelling arbitration is an interim order affecting the class’s substantial rights and thus is reviewable on appeal from the order dismissing the class claims under Code of Civil Procedure section 906.  Alternatively, he requests we treat his consolidated appeal as a petition for writ of mandate, revisit our summary denial of his prior writ petition and address the merits of both the court’s order compelling arbitration of his individual claims and the dismissal of his class claims.


On the merits Cortez argues his statutory claims were not encompassed by the terms of the arbitration agreement in the CBA and, even if they were, the court erred in dismissing the class claims because the right to pursue collective action—including prosecution of a class action in an arbitral forum—is a nonwaivable protected right under the National Labor Relations Act (NLRA) (29 U.S.C. § 151 et seq.).


Although not fully identified by the parties in their briefs, Cortez’s appeal poses several difficult jurisdictional questions, in particular, the effect of Cortez’s dismissal of his PAGA claim on the appealability of the earlier order dismissing the class claims, including whether a plaintiff’s voluntary action can create an appealable order under the death knell doctrine and whether the second notice of appeal from an order entered more than a year before was timely; and the applicability of Code of Civil Procedure section 906 to an order made appealable under the judicially created death knell doctrine rather than pursuant to Code of Civil Procedure section 904.1.  We resolve none of those issues.  Rather, in light of the uncertainty of the appealability of the orders challenged by Cortez and the absence of any delay or prejudice our intervention at this stage would cause, we find this an appropriate case in which to exercise our discretion to treat the consolidated appeal as a petition for writ of mandate and reach the merits of the superior court’s orders compelling arbitration of Cortez’s individual claims and terminating the class claims.


We grant Cortez’s petition in part, finding Cortez’s cause of action under the Labor Code for Doty Bros.’ failure to timely pay wages upon his separation from employment (Lab. Code, § 203) (sixth cause of action) and his unfair competition action based on that alleged statutory violation (Bus. & Prof. Code, § 17200) (seventh cause of action) are not encompassed by the arbitration provision in the CBA.  In all other respects, we deny the petition, concluding the remaining causes of action are subject to arbitration, and the court’s termination of class claims proper on the ground the CBA does not authorize classwide arbitration.

Diego v. City of Los Angeles

A city does not engage in unlawful discrimination by subjecting an officer involved in a fatal shooting to differential treatment because of political considerations stemming from the race of the victim.

Diego v. City of Los Angeles - filed Sept. 14, 2017, Second District, Div. One
Cite as 2017 S.O.S. 4644

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Thursday, September 14, 2017

Hardie v. NCAA

The panel affirmed the district court’s summary judgment in favor of the National Collegiate Athletic Association (“NCAA”) in an action brought by Dominic Hardie, who is African-American, alleging that the NCAA’s policy of excluding anyone with a felony conviction from coaching at NCAA-certified youth athletic tournaments violated Title II of the Civil Rights Act of 1964. Title II of the Civil Rights Act of 1964 prohibits racial discrimination in places of public accommodation. The district court granted summary judgment for the NCAA on the ground that disparate-impact claims were not cognizable under Title II.

The panel did not decide whether Title II encompassed disparate-impact claims.

The panel held that even if disparate-impact claims were recognizable under Title II, Hardie had not shown that an equally effective, less discriminatory alternative theory to the NCAA’s felon-exclusion policy existed, as was required under the three-step analysis for disparate-impact claims set forth in Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989).

Concurring in part and concurring in the judgment, District Judge Faber agreed with the court that under Title II, Hardie had not stated a cognizable claim. In his view, Title II’s text did not recognize disparate-impact liability, and the panel should have said so. Judge Faber also wrote that even if Title II had authorized disparate-impact liability, the business-necessity defense would immunize the NCAA’s policy; and the majority’s application of extraneous evidence was misplaced.

Hardie v. NCAA (9th Cir. 15-55576 9/11/17) Civil Rights Act/Title II/Disparate Impact in Coaching

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Wednesday, September 13, 2017

U.S. v. My Left Foot Children's Therapy

The plain language of an employee's agreement to arbitrate "all disputes that may arise out of the employment context"--including all disputes "based on the state employment statutes, Title VII of the Civil Rights Act of 1964, as amended, or any other state or federal law or regulation"--did not encompass the employee's False Claims Act action.

U.S. v. My Left Foot Children's Therapy - filed Sept. 11, 2017
Cite as 2017 S.O.S. 16-16070

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United Nurses Association of California v. National Labor Relations Board

No due process violation or bias can be inferred from an administrative law judge's adverse credibility determinations of an employer's witnesses, evidentiary rulings unfavorable to an employer, questioning of an employer's witnesses, and alleged expressions of impatience or anger. An employer impermissibly fired an employee for engaging in union organizing where the employer fired the worker after expressly authorizing him to engage in the conduct for which it fired him. It did not follow its own internal policies in terminating the worker, and it did not subject other workers to the same level of discipline for similar conduct. An employer cannot retroactively strip a worker of the protections of the National Labor Relations Act by promoting him to a supervisor position and then firing him for past protected activity done as an employee. An employer violated the NLRA by serving subpoenas on employees and their union seeking, confidential information about union activities, including communications with union representatives and signed authorization cards. The Noerr-Pennington doctrine did not shield an employer from liability for an unfair labor practice under the NLRA because its demands for employees' confidential information are not direct petitioning, and because its discovery requests were unlawful.

United Nurses Association of California v. National Labor Relations Board - filed Sept. 11, 2017
Cite as 2017 S.O.S. 15-70920

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California Correction Peace Officers Association v. Department of Corrections and Rehabilitation

A grievance alleging a violation of a correctional officer's reemployment rights under the Uniformed Services Employment and Reemployment Rights Act does not fall within the exclusive jurisdiction of the State Personnel Board because it is not a merit-based grievance. The California Department of Corrections and Rehabilitation forfeited any claim that the improper grievance procedure was used by acquiescing to the procedure.

California Correction Peace Officers Association v. Department of Corrections and Rehabilitation - filed Sept. 8, 2017, Third District
Cite as 2017 S.O.S. 4564

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King v. Blue Cross/Blue Shield of Illinois

The Employee Retirement Income Security Act, as amended by the Patient Protection and Affordable Care Act, does not ban lifetime benefit maximums for certain retiree-only plans. A summary plan description violates ERISA's statutory and regulatory disclosure requirements if it does not reasonably apprise the average plan participant that the lifetime benefit maximum continues to apply to the retiree.

King v. Blue Cross/Blue Shield of Illinois - filed Sept. 8, 2017
Cite as 2017 S.O.S. 15-55880

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Thursday, September 7, 2017

Marsh v. Alexander's LLC

The Department of Labor's interpretation of the dual jobs regulation--29 C.F.R. Sec. 531.56(e)--does not merit controlling deference because it was inconsistent with the language of the regulation and it was an impermissible attempt to create de facto a new regulation. The DOL does not have authority to require employers to engage in time tracking and accounting for minutes spent in diverse tasks before claiming a tip credit. A worker cannot state a viable minimum wage claim under 29 U.S.C. Sec. 206(a) by alleging that discrete "related" tasks or duties, which were performed intermittently over the course of the day and were intermingled with his duties directed at generating tips, comprise a dual job when aggregated together over the course of a workweek. He also cannot state a claim by alleging the performance of "unrelated" duties that were similarly dispersed and generally assigned.

Marsh v. Alexander's LLC - filed Sept. 6, 2017
Cite as 2017 S.O.S. 15-15791

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Wednesday, September 6, 2017

Henson v. U.S. District Court for the Northern District of California

An order staying proceedings and compelling arbitration is not a final decision that is subject to ordinary appeal. A litigant bringing a putative class action suffers prejudice that will not be correctable on appeal if he cannot arbitrate his dispute in a representative capacity or on behalf of a class. A district court judge erred in applying New York law pursuant to a choice-of-law provision in a dispute where one of the parties was not a signatory to the contract containing the provision. California law permits non-signatories to invoke arbitration agreements in limited circumstances under the doctrine of equitable estoppel--but absent evidence of reliance on the terms of the contract or collusion between the non-signatory and a signatory, equitable estoppel will not apply.

Henson v. U.S. District Court for the Northern District of California (Turn, Inc.) - filed Sept. 5, 2017
Cite as 2017 S.O.S. 16-71818

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Friday, September 1, 2017

Airline Service Providers Association v. Los Angeles World Airports

Air transport trade associations had associational standing to sue a city over a licensing scheme which obligates airport businesses to enter into a "labor peace agreement" with any employee organization that requests one. City was acting as a market participant in imposing this scheme, which served the limited purpose of minimizing service disruptions at the city's airport. The National Labor Relations Act, the Railway Labor Act, and the Airline Deregulation Act do not preempt actions taken by states and local governments in their capacity as market participants.

Airline Service Providers Association v. Los Angeles World Airports - filed Aug. 23, 2017
Cite as 2017 S.O.S. 15-55571

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Murray v. Southern Route Maritime SA

A vessel owner's turnover duty to ensure the ship and its equipment are in a reasonably safe condition is owed stevedores and longshoremen. An expert's theory of injury satisfied the Daubert standard for admissibility where the theory had peer-reviewed, published, and generally credited by the relevant scientific community.

Murray v. Southern Route Maritime SA - filed Aug. 31, 2017
Cite as 2017 S.O.S. 14-36056

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