Monday, February 19, 2018

Terris v. Co. of Santa Barbara

Campbell v. Regents of University of California (2005) 35 Cal.4th 311 holds that public employees must pursue appropriate internal administrative remedies before filing a civil action against their employer.  Labor Code section 244 does not require a litigant to exhaust administrative remedies before bringing a civil action.   Here we hold section 244 applies only to claims before the Labor Commissioner.  It has no effect on the Campbell rule.
          
Plaintiff Shawn Terris appeals a summary judgment in favor of her former employer, defendant County of Santa Barbara (County), in her wrongful termination action.  We conclude, among other things, that:  1) Terris did not exhaust her administrative remedies on her claims that the County terminated her job to discriminate against her in violation of sections 1101, 1102, and 1102.5; [[2) there are no triable issues of fact on Terris’s claim that she was terminated because of her sexual orientation (Gov. Code, § 12940, subd. (a), Fair Employment and Housing Act (FEHA));]] but 3) the trial court erred by awarding the County costs on the FEHA cause of action.  We affirm in part and reverse in part.

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Friday, February 2, 2018

Kenny v. Wal-Mart Stores

The panel vacated the district court’s order remanding a putative class action to California state court because the district court exceeded its statutory authority in remanding sua sponte based on a non-jurisdictional defect, and because Wal-Mart did not waive its right to remove the action to federal court; and remanded to the district court for further proceedings.

Plaintiff filed the putative class action in California state court, challenging Wal-Mart’s policy requiring employees who have suffered workplace-related injuries to submit to drug and/or urine testing. Wal-Mart removed the case to federal court based on jurisdiction under the Class Action Fairness Act (“CAFA”). The district court sua sponte remanded the action to state court, concluding that Wal-Mart had waived its right to remove the case by filing a demurrer in response to plaintiff’s First Amended Complaint (“FAC”) in state court.

The panel held that the district court lacked authority under 28 U.S.C. § 1447(c) to remand sua sponte based on a non-jurisdictional defect.

The panel noted that a defendant “may waive the right to remove to federal court where, after it is apparent that the case is removable, the defendant takes actions in state court that manifest his or her intent to have the matter adjudicated there, and to abandon his or her right to a federal forum.” Resolution Tr. Corp. v. Bayside Developers, 43 F.3d 1230, 1240 (9th Cir. 1994). The panel held that the district court erred in concluding that Wal-Mart waived its right to remove the case when the FAC did not reveal a basis for removal pursuant to CAFA. The panel also held that Wal-Mart’s choice to file a demurrer, rather than another form of responsive pleading, to plaintiff’s indeterminate FAC did not amount to a waiver of its right to remove. The panel further held that where Wal-Mart removed the case before plaintiff opposed the demurrer and before any hearing was held, clearly Wal-Mart did not manifest an intent to litigate in state court.

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Thursday, February 1, 2018

O'Malley v. Hospitality Staffing Solutions

A negligent undertaking claim could not be subjected to dismissal on summary judgment where it was possible for a reasonable trier to fact to find that a hotel had assumed a duty to have an employee check on a guest and there was a dispute as to whether it was reasonably foreseeable that the guest was incapacitated and needed assistance.

O'Malley v. Hospitality Staffing Solutions - filed Jan. 31, 2018, Fourth District, Div. Three
Cite as 2018 S.O.S. 574

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Wednesday, January 24, 2018

Lampe v. Queen of the Valley Medical Center

A trial court can deny class certification if the plaintiffs are seeking certification for classes that were not identified in the operative complaint. A trial judge properly denied certification of a class of workers whose overtime wages were allegedly based on improper calculations of their regular rate of pay where the workers failed to demonstrate what items were or were not included in the regular rate calculation, or any details as to why any of the items should or should not be included. Without such evidence, the judge could not determine if there was an ascertainable and numerous class with a defined community of interest. A trial judge properly denied class certification for a group of workers who claimed their employer had required them to leave work early since an individualized assessment was necessary to determine who left at the employer's request, and who voluntarily left. A trial judge properly denied class certification for a group of workers who claimed they were denied timely meal breaks because it would require individualized inquiries to determine which workers did not take breaks and why.

Lampe v. Queen of the Valley Medical Center - filed Jan. 2, 2018, publication ordered Jan. 23, 2018, First District, Div. Four
Cite as 2018 S.O.S. 420

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Arave v. Merrill Lynch, Pierce etc.

An employee's letter to his former employer was properly treated as an admission against interest instead of an attempt to compromise where the letter does not concede any wrongdoing, but simply sets out his accusations of discrimination and his maximal claim. Even if the letter were an offer to compromise, its admission was not prejudicial since the factual claims in the letter were consistent with the evidence the employee put on at trial, and the proposed resolution was consistent with the expert testimony presented by the employee to establish his damages. A judge's comments expressing frustration with counsel's inefficient manner of questioning a witness were not the sort of comment that demonstrate a negative personal view concerning counsel that would deprive a party of a fair trial. A judge has discretion to guide the trial, direct counsel to allow witnesses to finish their answers, and direct counsel to cut to the chase in questions and away from needless complicated setups. The judge erred in awarding costs and expert witness fees to an employer who prevailed on a worker's discrimination claims under Code of Civil Procedure Sec. 998(c)(1) where the judge found the claims were not frivolous.

Arave v. Merrill Lynch, Pierce etc. - filed Jan. 23, 2018, Fourth District, Div. Two
Cite as 2018 S.O.S. 397

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Tuesday, January 23, 2018

In re Hyundai and Kia Fuel Economy Litigation

When a group of plaintiffs brings a nationwide class action under the Class Action Fairness Act in California, the district court is required to apply California's choice of law rules to determine whether California law could apply to all plaintiffs in the nationwide class, or whether the court had to apply the law of each state, and if so, whether variations in state law prevented common issues from predominating in the litigation. The standard for class certification under Federal Rule of Civil Procedure 23 is not lessened in a settlement context.

In re Hyundai and Kia Fuel Economy Litigation - filed Jan. 23, 2018
Cite as 2018 S.O.S. 15-56014

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Khan v. Dunn-Edwards Corp.

This lawsuit is brought pursuant to Labor Code section 2698, the Labor Code Private Attorneys General Act of 2004 (PAGA).  We affirm the summary judgment because plaintiff Hamid H. Khan failed to provide adequate notice of his claim to the relevant agency prior to bringing the lawsuit against his former employer Dunn-Edwards Corporation (Dunn-Edwards).

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Monday, January 22, 2018

Bustos v. Global P.E.T.

A trial judge committed no abuse of discretion in denying a worker's request for attorney fees after he secured a jury verdict finding his disability--or perceived disability--had been a substantial motivating cause for his termination from his job. An award of attorney's fees is discretionary under Government Code Sec. 12965(b) and it is not beyond reason to conclude that a plaintiff who obtained no monetary or equitable relief was not a "prevailing party" under the Fair Employment and Housing Act.

Bustos v. Global P.E.T. - filed Dec. 22, 2017, publication ordered Jan. 16, 2018, Fourth District, Div. Two
Cite as 2018 S.O.S. 304

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Wednesday, January 17, 2018

Encino Motorcars, LLC v. Navarro

Whether service advisors at car dealerships are exempt under 29 U.S.C. § 213(b)(10)(A) from the Fair Labor Standards Act's overtime-pay requirements.

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Duran v. U.S. Bank Nat'l. Ass'n.

Duran v. U.S. Bank Nat'l. Ass'n. (CA1/1 A148817 1/17/18) Wage & Hour/Class Certification

In our second encounter with this class action case, plaintiffs Samuel Duran and Matt Fitzsimmons appeal from the trial court’s order denying class certification.  This case is a wage and hour class action challenging whether defendant U.S. Bank National Association (Bank) had properly classified its business banking officers (BBOs) as exempt employees under the outside salesperson exemption.  This exemption applies to employees who spend more than 50 percent of their workday engaged in sales activities outside their employer’s place of business.  The trial court concluded plaintiffs failed to demonstrate that the case is manageable as a class action.  We affirm.

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Monday, January 15, 2018

ABM Industries Overtime Cases

In determining a witness' qualifications to serve as an expert, the determinative issue in each case must be whether the witness has sufficient skill or experience in the field so that his testimony would be likely to assist the jury in the search for the truth. Once this threshold has been met, questions regarding the degree of an expert's knowledge go more to the weight of the evidence presented than to its admissibility. In determining whether to grant class certification, a trial court abused its discretion in disregarding the plaintiffs' proffered expert evidence of common practice, rather than accepting it for what it was and weighing it against the existence of any individualized inquiries that might properly have defeated plaintiffs' request for class certification.

ABM Industries Overtime Cases - filed Dec. 11, 2017, publication ordered Jan. 10, 2018, First District, Div. Four
Cite as 2018 S.O.S. 180

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Golden Eagle Land Investment, L.P. v. Rancho Santa Fe Association

A defendant's communications with county land use authorities on the subject of governmental entitlement applications constitutes protected activity for purposes of the anti-SLAPP statute.

Golden Eagle Land Investment, L.P. v. Rancho Santa Fe Association - filed Jan. 12, 2018, Fourth District, Div. One
Cite as 2018 S.O.S. 211

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Wednesday, January 10, 2018

Central Valley Hospitalists v. Dignity Health

A defendant abused the protections of the anti-SLAPP law by filing a special motion to strike a complaint which alleged no acts arising from a protected activity, based on the defendant's beliefs that the plaintiff's claims were really predicated on a theory of liability which was unstated.

Central Valley Hospitalists v. Dignity Health - filed Jan. 9, 2018, First District, Div. Two
Cite as 2018 S.O.S. 143

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Tuesday, January 9, 2018

Kramer v. Cullinan

A public official was entitled to qualified immunity for releasing a letter concerning the termination of an employee where the letter did not accuse the terminated employee of any bad faith, willful misconduct, intentional acts, waste or fraud, since the letter was not "stigmatizing." Even if the content were stigmatizing, it was not clearly established law that charges other than fraud, dishonesty, and immorality would trigger the requirements of a name-clearing hearing.

Kramer v. Cullinan - filed Jan. 3, 2017
Cite as 2017 S.O.S. 14-36103

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Stirling v. Brown

Military and Veterans Code Sec. 56 is unambiguous and its plain language does not require the governor to undertake the procedures required of the inspector general in response to a whistleblower allegation. Sec. 56 does not violate California's equal protection clause because in all cases a whistleblower allegation is referred to an impartial decision maker who has discretion whether to undertake a full investigation.

Stirling v. Brown - filed Jan. 4, 2018, Fourth District, Div. Three
Cite as 2018 S.O.S. 59

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Sanchez v. Elizondo

The Federal Arbitration Act does not deprive a court of jurisdiction to review an arbitration decision that vacates an award and remands the case for a new arbitration. An arbitrator did not exceed his power by issuing an award that was grounded in the essence of the parties' agreement, which empowered the arbitrator to conduct an arbitration compliant with the Financial Industry Regulatory Authority's by-laws, rules, and Code of Arbitration Procedure.

Sanchez v. Elizondo - filed Jan. 5, 2018
Cite as 2018 S.O.S. 16-17345

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Monday, January 8, 2018

Labor and Workforce Development Agency v. Superior Court (Fowler Packing Co.)

A trial court's direction to prepare an index is preliminary to any order directing disclosure by a public official or supporting the decision of the public official refusing disclosure. This act does not trigger the filing period for a party to seek appellate review, but it is subject to interlocutory review, and the writ petition should be filed within 60 days. A trial court erred in directing the preparation of an index of documents that itself would reveal the identities of third parties involved in confidential communications during the deliberative process of drafting legislation. The court also erred in requiring the release of attorney work product produced by the legislative counsel.

Labor and Workforce Development Agency v. Superior Court (Fowler Packing Co.) - filed Jan. 8, 2018, Third District
Cite as 2018 S.O.S. 92

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Simers v. LA Times Communications

In March 2013, plaintiff T.J. Simers was a well-known and sometimes controversial sports columnist for Los Angeles Times Communications, LLC (The Times or defendant).  He had held that position since 2000, receiving uniformly favorable and often exceptional performance reviews from defendant.  On March 16, 2013, plaintiff, then 62 years old, suffered a neurological event with symptoms similar to a “mini-stroke.”  He recovered quickly, for the most part, and soon was again writing his thrice-weekly column.

Two and a half months later, The Times reduced plaintiff’s columns to two per week, to “give [him] more time to write on [his] columns.”  His editors expressed the dissatisfaction of upper management with several recent columns, and stated “they had been having problems with [his] writing for the past 18 months.”  Two weeks later, The Times learned from an article in another publication that a Hollywood producer (who had just filmed a 90-second video that had “gone viral,” in connection with one of plaintiff’s columns) was apparently developing a television show loosely based on plaintiff’s life.  Viewing this as a possible ethical breach, defendant put plaintiff’s columns “on holiday” for 10 days, and then, on June 24, 2013, suspended the column pending an investigation.

On August 8, 2013, after completion of the investigation and several meetings with plaintiff, defendant issued a “final written warning” that removed plaintiff from his position as a columnist and made him a senior reporter, albeit with no reduction in salary “for now.”  Plaintiff’s lawyer informed defendant on August 12 that plaintiff could not work in that environment and considered himself to have been constructively terminated.

On September 4, 2013, The Times asked plaintiff to return to his position as columnist.  But defendant did not answer plaintiff’s questions about how many columns he would write and whether he had to change his interviewing approach, and plaintiff did not trust The Times.  The next day, plaintiff met with editors at the Orange County Register, and by September 9, 2013, had accepted a position as a columnist there.

On October 15, 2013, plaintiff sued The Times.  After a 28-day trial in the fall of 2015, the jury found in favor of plaintiff on his claims of disability and age discrimination, and on his claim of constructive termination.  The jury awarded plaintiff $2,137,391 in economic damages for harm caused by his constructive termination and $5 million in noneconomic damages.  The parties agreed to give the jury a special verdict form that instructed them to fill in the blanks for past and future economic damages only if they found plaintiff was constructively terminated.  The special verdict form allowed the jury to award past and future noneconomic damages without identifying which noneconomic damages were caused by the constructive termination and which were caused by the discrimination.

The trial court granted defendant’s motion for judgment notwithstanding the verdict (JNOV) on plaintiff’s constructive termination claim, and otherwise denied JNOV, finding substantial evidence supported the verdict on plaintiff’s age and disability discrimination claims.  The court also granted defendant’s motion for a new trial on all damages, economic and noneconomic, finding it was not possible to determine what amount of noneconomic damages the jury awarded because of the discrimination but not because of the constructive discharge.  The court denied defendant’s motion for a new trial on plaintiff’s discrimination claims.
          
Both parties appealed.  We affirm the trial court’s orders.

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Friday, January 5, 2018

Kim v. Reins International California, Inc.

A worker who has dismissed his individual claims for wage and hour violations does not have standing under the Private Attorneys General Act to pursue a class claim for wage and hour violations because he is no longer an "aggrieved employee."

Kim v. Reins International California, Inc. - filed Dec. 29, 2017, Second District, Div. Four
Cite as 2017 S.O.S. 18

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Arave v. Merrill Lynch, Pierce, etc

An employee's letter to his former employer was properly treated as an admission against interest instead of an attempt to compromise where the letter does not concede any wrongdoing, but simply sets out his accusations of discrimination and his maximal claim. Even if the letter were an offer to compromise, its admission was not prejudicial since the factual claims in the letter were consistent with the evidence the employee put on at trial, and the proposed resolution was consistent with the expert testimony presented by the employee to establish his damages. A trial judge erred in awarding costs and expert witness fees to an employer who prevailed on a worker's discrimination claims under Code of Civil Procedure Sec. 998(c)(1) where the judge found the claims were not frivolous.

Arave v. Merrill Lynch, Pierce, etc. - filed Jan. 2, 2018, Fourth District, Div. Two
Cite as 2017 S.O.S. 28

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