Monday, April 16, 2018

Powell v. Bear Valley Community Hospital

Powell v. Bear Valley Community Hospital (CA4/1 D072616, field 3/26/18, pub. ord. 4/16/18) Medical Staff Privileges

The Board of Directors (the Board) of Bear Valley Community Hospital (Bear Valley) denied Dr. Robert O. Powell's advancement from provisional to active staff membership and reappointment to Bear Valley's medical staff.  Dr. Powell appeals from the superior court judgment denying his petition for writ of mandate to void the Board's decision and for reinstatement of his medical staff privileges.  We affirm.

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Riske v. Superior Court

Riske v. Superior Court (CA2/7 B283035 4/16/18) Retaliation/Peace Officer Personnel Records

Robert Riske, a retired Los Angeles police officer, sued the City of Los Angeles alleging the Los Angeles Police Department had retaliated against him for protected whistleblower activity by failing to assign or promote him to several positions and selecting instead less qualified candidates.  Riske filed a discovery motion pursuant to Evidence Code sections 1043 and 1045 to obtain certain summary personnel records relied on by the City in making assignment and promotion decisions.  After the superior court erroneously ruled those records were not subject to discovery because the officers selected for the positions Riske sought were innocent third parties who had not witnessed or caused Riske’s injury, we issued a writ of mandate directing the superior court to vacate its order denying Riske’s discovery motion and to enter a new order directing the City to produce those records for an in camera inspection in accordance with section 1045.  (See Riske v. Superior Court (2016) 6 Cal.App.5th 647, 664-665 (Riske I).)

The superior court conducted the in camera hearing and ordered the requested personnel records to be produced in accordance with the parties’ protective order.  However, pursuant to section 1045, subdivision (b)(1), which excludes from disclosure “[i]nformation consisting of complaints concerning conduct occurring more than five years before the event or transaction that is the subject of the litigation” in which discovery or disclosure is sought, the court ordered redaction of all items in those reports concerning conduct that had occurred more than five years before Riske filed his complaint.

Riske again petitioned this court for a writ of mandate directing the superior court to order the City to produce those records without redaction.  In response to our inquiry, both Riske and the City agree that, if section 1045, subdivision (b)’s five-year disclosure bar applies at all, it is measured from the date each officer was promoted instead of Riske—the alleged adverse employment action at issue in the litigation—and not the date Riske filed his complaint, as the superior court ruled.  However, Riske also argues more broadly that section 1045, subdivision (b), which prohibits disclosure of stale complaints against police officers, has no application to the personnel reports sought in this case.  We agree and grant the petition.

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The Police Retirement System of St. Louis v. Page

The Police Retirement System of St. Louis v. Page (CA6 H043220 4/16/18) Antitrust Action on Employee Recruitment/Shareholders’ Derivative Action Statute of Limitations

In this derivative action, shareholders of Google, Inc. allege the corporation was harmed by executives who agreed to refrain from actively recruiting employees working for competitors.  The trial court granted the defendants’ summary judgment motion, finding the action barred by the applicable statute of limitations.  We will affirm.

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Tanguilig v. Neiman Marcus Group, Inc.

Appellant Bernadette Tanguilig brought suit against her former employer, Neiman Marcus Group, Inc. (NMG), alleging a combination of individual and class claims for wrongful termination in violation of public policy and multiple violations of the California Labor Code.  Early in the trial court proceedings, NMG successfully demurred to Tanguilig’s wrongful termination and related claims, and several years later, moved to dismiss the remaining claims pursuant to California’s five-year dismissal statute, Code of Civil Procedure section 583.310. The trial court granted the motion and dismissed the suit.  On appeal, Tanguilig urges us to overturn the five-year dismissal order, arguing primarily that the trial court erred in failing to toll the five-year clock under section 583.340, subdivision (c), for the period during which an order compelling co-plaintiff Juan Carlos Pinela to arbitration was in effect.  Tanguilig also appeals an order sustaining NMG’s demurrer and an award of prevailing-party costs to NMG.
          
Finding no merit to any of the assigned errors, we affirm.

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Castillo v. Glenair, Inc.

Castillo v. Glenair, Inc. (CA2/2 B278239 4/16/18) Joint Employer Settlement/Res Judicata

In a joint employer arrangement, can a class of workers bring a lawsuit against a staffing company, settle that lawsuit, and then bring identical claims against the company where they had been placed to work.  We answer no.

This wage and hour putative class action involves the relationship between a temporary staffing company (GCA Services Group, Inc. (GCA)), its employees (appellants Andrew and David Castillo), and its client company (respondent Glenair, Inc.).  The Castillos were employed and paid by GCA to perform work on site at Glenair.  Glenair was authorized to and did record, review, and report the Castillos’ time records to GCA so that the Castillos could be paid.  The Castillos characterize GCA and Glenair as joint employers.  As explained below, the undisputed facts of this case demonstrate both that Glenair and GCA are in privity with one another for purposes of the Castillos’ wage and hour claims, and that Glenair is an agent of GCA with respect to GCA’s payment of wages to its employees who performed services at Glenair.
These findings of privity and agency are significant.  While this case was pending, a separate class action brought against, among others, GCA resulted in a final, court-approved settlement agreement.  (Gomez v. GCA Production Services, Inc. (Super. Ct. San Bernardino County, 2014, No. CIVRS1205657 (Gomez).)  The Gomez settlement agreement contains a broad release barring settlement class members from asserting wage and hour claims such as those alleged here against GCA and its agents.  The Castillos are members of the Gomez settlement class and did not opt out of that settlement.
The Castillos present claims against Glenair involve the same wage and hour claims, for the same work done, covering the same time period as the claims asserted in Gomez.  Thus, because Glenair is in privity with GCA (a defendant in Gomez) and is an agent of GCA, the Gomez settlement bars the Castillos’ claims against Glenair as a matter of law.

The Castillos appeal the trial court’s grant of summary judgment.  As discussed below, however, we conclude summary judgment was proper.







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Tuesday, April 10, 2018

Encino Motorcars, LLC v. Navarro et al.

Encino Motorcars, LLC v. Navarro et al. (US 16–1362 4/2/18) FLSA Overtime Exemption

Respondents, current and former service advisors for petitioner Encino Motorcars, LLC, sued petitioner for backpay, alleging that petitioner violated the Fair Labor Standards Act (FLSA) by failing to pay them overtime. Petitioner moved to dismiss, arguing that service advisors are exempt from the FLSA’s overtime-pay requirement under 29 U. S. C. §213(b)(10)(A), which applies to “any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles, trucks, or farm implements.” The District Court agreed and dismissed the suit. The Court of Appeals for the Ninth Circuit reversed. It found the statute ambiguous and the legislative history inconclusive, and it deferred to a 2011 Department of Labor rule that interpreted “salesman” to exclude service advisors. This Court vacated the Ninth Circuit’s judgment, holding that courts could not defer to the procedurally defective 2011 rule, Encino Motorcars, LLC v. Navarro, 579 U. S. ___, ___–___ (Encino I), but not deciding whether the exemption covers service advisors, id., at ___. On remand, the Ninth Circuit again held that the exemption does not include service advisors.

Held: Because service advisors are “salesm[e]n . . . primarily engaged in . . . servicing automobiles,” they are exempt from the FLSA’s overtime-pay requirement. Pp. 5–11.

(a) A service advisor is obviously a “salesman.” The ordinary meaning of “salesman” is someone who sells goods or services, and service advisors “sell [customers] services for their vehicles,” Encino I, supra, at ___. P. 6.

(b) Service advisors are also “primarily engaged in . . . servicing automobiles.” “Servicing” can mean either “the action of maintaining or repairing a motor vehicle” or “[t]he action of providing a service.” Oxford English Dictionary 39. Service advisors satisfy both definitions because they are integral to the servicing process. They “mee[t] customers; liste[n] to their concerns about their cars; sugges[t] repair and maintenance services; sel[l] new accessories or replacement parts; recor[d] service orders; follo[w] up with customers as the services are performed (for instance, if new problems are discovered); and explai[n] the repair and maintenance work when customers return for their vehicles.” Encino I, supra, at ___. While service advisors do not spend most of their time physically repairing automobiles, neither do partsmen, who the parties agree are “primarily engaged in . . . servicing automobiles.” Pp. 6–7.

(c) The Ninth Circuit invoked the distributive canon—matching “salesman” with “selling” and “partsman [and] mechanic” with “[servicing]”—to conclude that the exemption simply does not apply to “salesm[e]n . . . primarily engaged in . . . servicing automobiles.” But the word “or,” which connects all of the exemption’s nouns and gerunds, is “almost always disjunctive.” United States v. Woods, 571 U. S. 31, 45. Using “or” to join “selling” and “servicing” thus suggests that the exemption covers a salesman primarily engaged in either activity.

Statutory context supports this reading. First, the distributive canon has the most force when one-to-one matching is present, but here, the statute would require matching some of three nouns with one of two gerunds. Second, the distributive canon has the most force when an ordinary, disjunctive reading is linguistically impossible. But here, “salesman . . . primarily engaged in . . . servicing automobiles” is an apt description of a service advisor. Third, a narrow distributive phrasing is an unnatural fit here because the entire exemption bespeaks breadth, starting with “any” and using the disjunctive “or” three times. Pp. 7–9.

(d) The Ninth Circuit also invoked the principle that exemptions to the FLSA should be construed narrowly. But the Court rejects this principle as a guide to interpreting the FLSA. Because the FLSA gives no textual indication that its exemptions should be construed narrowly, they should be given a fair reading. P. 9.

(e) Finally, the Ninth Circuit’s reliance on two extraneous sources to support its interpretation—the 1966–1967 Occupational Outlook Handbook and the FLSA’s legislative history—is unavailing. Pp. 9– 11.

845 F. 3d 925, reversed and remanded.

THOMAS, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, ALITO, and GORSUCH, JJ., joined. GINSBURG, J., filed a dissenting opinion, in which BREYER, SOTOMAYOR, and KAGAN, JJ., joined.

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Monday, April 9, 2018

Rizo v. Yovino

An employee's prior salary does not constitute a "factor other than sex" upon which a wage differential may be based under the statutory "catchall" exception set forth in 29 U.S.C. Sec. 206(d)(1). For purposes of that statute, "any other factor other than sex" is limited to legitimate, job-related factors such as a prospective employee's experience, educational background, ability, or prior job performance.

Rizo v. Yovino - filed April 9, 2018
Cite as 2018 S.O.S. 16-15372

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Friday, April 6, 2018

Jones v. Royal Admin. Svcs.

Jones v. Royal Admin. Svcs. (9th Cir. 15-17328 4/4/18) Vicarious Liability/Telemarketers/Telephone Consumer Protection Act

The panel filed (1) an order amending its opinion and (2) an amended opinion affirming the district court’s grant of summary judgment in favor of the defendant in an action under the Telephone Consumer Protection Act.

The panel held that Royal Administration Services, Inc., could not be held liable under the TCPA for several phone calls made by telemarketers employed by All American Auto Protection, Inc., because the telemarketers did not have actual authority to place the unlawful calls, and Royal exercised insufficient control over the manner and means of the work to establish vicarious liability.

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Friday, March 30, 2018

Guarino v. County of Siskiyou

Guarino v. County of Siskiyou (CA3 C076629, filed 3/1/18, pub. ord. 3/29/18) Anti-SLAPP/ Breach of Employment Contract

Appellant Thomas P. Guarino (Guarino) appeals from an order of the superior court granting an “anti-SLAPP” (Strategic Lawsuits Against Public Participation) motion to strike his First Amended Complaint pursuant to Code of Civil Procedure section 425.16, undesignated section references are to the Code of Civil Procedure.  The motion was filed by defendants County of Siskiyou (County), individual members of the Board of Supervisors Marcia Armstrong, Grace Bennett, Michael Kobseff, Ed Valenzuela, and Jim Cook (the Board), as well as County Administrator, Tom Odom (collectively, defendants).  Guarino also appeals the trial court’s order sustaining demurrers without leave to amend that were filed on behalf of the County, the Board, and Odom.
          
Because we affirm the order granting the Code of Civil Procedure section 425.16 motion, we need not decide whether the trial court erred in sustaining defendants’ demurrers.

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Wednesday, March 28, 2018

Lawson v. ZB, N.A.

Lawson v. ZB, N.A. (2017) 227 Cal.Rptr.3d 613 (SC S246711/ D071376 review granted 3/21/18) PAGA/FAA Preemption

Petition for review after the Court of Appeal granted a petition for peremptory writ of mandate. This case presents the following issue: Does a representative action under the Private Attorneys General Act of 2004 (Lab. Code, § 2698 et seq.) seeking recovery of individualized lost wages as civil penalties under Labor Code section 558 fall within the preemptive scope of the Federal Arbitration Act (9 U.S.C. § 1 et seq.)? Votes: Cantil-Sakauye, C.J., Chin, Corrigan, Liu, CuĂ©llar and Kruger, JJ.

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Thursday, March 22, 2018

McGlynn v. State of Calif.

In this mandamus proceeding, six judges who were elected to the superior court in mid-term elections in 2012, but who did not take office until January 7, 2013, maintain they are entitled to benefits under the Judges’ Retirement System II (JRS II) as in effect at the time they were elected, rather than at the time they assumed office. This is a matter of considerable importance to these judges because, on January 1, 2013, JRS II became subject to the provisions of the California Public Employees’ Pension Reform Act of 2013 (PEPRA), which amended virtually all state employee retirement systems to begin addressing the state’s enormous unfunded pension liability and returning these systems to actuarially sound footing. Among other things, PEPRA increases employee contributions, provides for fluctuating contribution rates based on market performance and actuarial projections, and bases the amount of monthly pension payments on an employee’s final three years of compensation, rather than on only the final year.

We conclude, as did the trial court, that the judges did not obtain a vested right in JRS II benefits as judges-elect, but rather obtained a vested right to retirement benefits 1 Government Code section 75500 et seq. 2 Government Code section 7522 et seq. 2 only upon taking office, after PEPRA went into effect. We also conclude PEPRA’s provisions pertaining to fluctuating pension contributions do not violate the nondiminution clause of the California Constitution (Cal. Const., art. III, § 4), nor do they impermissibly delegate legislative authority over judicial compensation (Cal. Const., art. VI, § 19). We therefore affirm the judgment.

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Wednesday, March 21, 2018

Glazing Health & Welfare Fund v. Lamek

Under the Employee Retirement Income Security Act, employers are not fiduciaries as to unpaid contributions to ERISA benefit plans. Parties to an ERISA plan cannot designate unpaid contributions as plan assets.

Glazing Health & Welfare Fund v. Lamek - filed March 21, 2018
Cite as 2018 S.O.S. 16-16155

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Sali v. Corona Reg’l Med. Ctrl.

Sali v. Corona Reg’l Med. Ctrl. (9th Cir. 15-56389 3/19/18) Contempt/Wage & Hour Class Action

The panel affirmed the district court’s contempt judgment arising after plaintiffs’ counsel failed to pay sanctions when they did not produce their expert at a deposition as ordered.

The panel held that under Fed. R. Civ. P. 37’s general discovery enforcement provisions, a court can order a party to produce its nonparty expert witness at a deposition, and if the party makes no effort to ensure that its witness attends the deposition, sanction the party’s counsel when the witness fails to appear unless the failure to produce the expert “was substantially justified or other circumstances make an award of expenses unjust.” Fed. Civ. P. 37(b)(2)(C). The panel held that the Rule 37 sanctions were reasonable in this case.

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Thursday, March 15, 2018

Corley v. San Bernardino County Fire Protection Dist.

Corley v. San Bernardino County Fire Protection Dist. (CA4/1 3/15/18 D072852) Age Discrimination/Jury

Instruction Firefighters' Procedural Bill of Rights

George Corley filed this action against his former employer, the San Bernardino County Fire Protection District (the District).[1]  The trial court held a jury trial on a single cause of action for age discrimination under the Fair Employment and Housing Act (Gov. Code, § 12900 et seq.).  The jury rendered a special verdict in which it found that Corley's age was a substantial motivating reason for the District's termination of his employment and awarded damages for lost earnings.  The trial court subsequently entered a judgment in favor of Corley against the District awarding Corley $597,629 in damages, $853,443 in attorney fees, and $40,733 in costs.

On appeal, the District contends that the trial court erred in denying its request to instruct the jury pursuant to a provision in the Firefighters' Procedural Bill of Rights (§ 3254, subd. (c)).  The District also claims that the trial court erred in instructing the jury that "the use of salary as the basis for differentiating between employees when terminating employment may be a factor used to constitute age discrimination" if the employer's termination policy adversely affects older workers.  The District further maintains that there is insufficient evidence to support the jury's award of damages based on its implicit finding that Corley would have been promoted but for the District's discrimination.  Finally, the District claims that the trial court abused its discretion in applying a multiplier in awarding Corley statutory attorney fees.  In the published portion of the discussion, we interpret section 3254, subdivision (c) and conclude that the trial court did not err in refusing to instruct the jury pursuant to this provision.  In unpublished portions of the discussion, we conclude that the District fails to establish any reversible error with respect to its remaining claims.  Accordingly, we affirm the judgment.

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Wednesday, March 14, 2018

Saheli v. White Memorial Medical Center

Saheli v. White Memorial Medical Center (CA2/8 B283217 3/14/18) Arbitration/Ralph and Bane Acts

White Memorial Medical Center (White Memorial) and Juan Barrio, M.D. (together, Defendants) challenge the denial in part of their petition to compel arbitration of claims brought against them by Gezel Saheli, M.D.  Although the trial court ordered Saheli to arbitrate the majority of her claims, it refused to compel arbitration of her claims brought pursuant to Civil Code sections 51.7 (Ralph Act) and 52.1 (Bane Act).  The court reasoned that the parties’ arbitration agreement failed to comply with special requirements for agreements to arbitrate such claims.  Specifically, sections 51.7 and 52.1 prohibit the enforcement of agreements to arbitrate Ralph Act and Bane Act claims that are made as a condition of certain contracts or of providing or receiving goods or services.  They also mandate that the party seeking to enforce an agreement to arbitrate such claims prove the other party knowingly and voluntarily agreed to arbitration.  Defendants contend (1) the trial court erred in its interpretation of the parties’ arbitration agreement and (2) the Ralph Act’s and Bane Act’s special requirements for arbitration agreements are preempted by the Federal Arbitration Act (FAA).  We agree and reverse the trial court’s order denying Defendants’ petition to compel arbitration of Saheli’s Ralph Act and Bane Act claims.

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AB 110

AB 110 by the Committee on Budget – In-home supportive services provider wages: emergency caregiver payments for foster care: civil immigration detainees: recording fees.

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Ponce v. Wells Fargo Bank

A nonfrivolous claim cannot be asserted for an improper purpose, as a matter of law.

Ponce v. Wells Fargo Bank - filed March 13, 2018, Third District
Cite as 2018 S.O.S. 1209

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AO Alpha-Bank v. Yakovlev

Due process does not require actual notice of a legal proceeding--it requires only a method of service "reasonably calculated" to impart actual notice under the circumstances of the case. Mail service of the summons letter and attached statement of claim to an address that the defendant provided as his residence was "reasonably calculated" to impart actual notice.

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Tuesday, March 13, 2018

MMM Holdings, Inc. v. Reich

Plaintiffs, MMM Holdings, Inc. (MMM), and MSO of Puerto Rico, Inc. (MSO), sued defendant Marc Reich, the attorney who represented their adversary in a whistleblower qui tam action filed against plaintiffs in the United States District Court.  Alleging causes of action for claim and delivery, conversion, civil theft, unjust enrichment, and unfair competition, plaintiffs contend Reich received, wrongfully possessed, and refused to turn over, some 26,000 electronically stored documents his client, Jose “Josh” Valdez, took with him in 2010 when he was terminated by MSO for his allegedly “vocal opposition to what he perceived as Plaintiffs’ fraudulent practices.”

Reich filed a special motion to strike the complaint under Code of Civil Procedure section 425.16, the anti-SLAPP (strategic lawsuit against public participation) statute.  The court granted the motion, concluding the claims asserted by plaintiffs against Reich involved Reich’s petitioning activity protected by the anti-SLAPP statute, and that plaintiffs had not shown, and could not show, a probability they would prevail on any of their claims.  We conclude the court did not err and affirm the order.

MMM Holdings, Inc. v. Reich (CA4/3 G053739 3/12/18) Retaliation/Qui Tam/Anti-SLAPP

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Friday, March 9, 2018

Dean v. Friends of Pine Meadow

Speech and petitioning activity by individuals who formed a community group in order to oppose an amendment to a city's general plan engaged in political speech, not commercial speech. Commercial speech is not categorically excluded from the protection of the anti-SLAPP law.

Dean v. Friends of Pine Meadow - filed Feb. 8, 2018, publication ordered March 8, 2018, First District, Div. Four
Cite as 2018 S.O.S. 1149

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Thursday, March 8, 2018

In re Zappos.com, Inc.

A group of plaintiffs sufficiently alleged standing based on the risk of identity theft after hackers breached the servers of an online retailer and accessed their personal information, but did not use that information to conduct subsequent financial transactions.

In re Zappos.com, Inc. - filed March 8, 2018
Cite as 2018 S.O.S. 16-16860

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Wednesday, March 7, 2018

County of San Diego v. WCAB (Pike)


Labor Code §4656(b) precludes the Workers' Compensation Appeals Board from awarding an injured worker temporary disability payments for periods of disability occurring more than five years after the date of the underlying injury.

County of San Diego v. WCAB (Pike) - filed March 6, 2018, Fourth District, Div. One
Cite as 2018 S.O.S. 1130

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Monday, March 5, 2018

Alvarado v. Dart Container Corp. of California

In this case, we decide how an employee’s overtime pay rate should be calculated when the employee has earned a flat sum bonus during a single pay period.  Specifically, we consider whether the divisor for purposes of calculating the per-hour value of the bonus should be (1) the number of hours the employee actually worked during the pay period, including overtime hours; (2) the number of nonovertime hours the employee worked during the pay period; or (3) the number of nonovertime hours that exist in the pay period, regardless of the number of hours the employee actually worked.  We conclude that the divisor should be the second of these options.  We reverse the judgment of the Court of Appeal.

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Ly v. County of Fresno

A decision from the Workers Compensation Appeals Board can preclude a subsequent claim under the Fair Employment and Housing Act (FEHA).

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Friday, March 2, 2018

Herterich v. Peltner

The litigation privilege extends to fraudulent statements, even when made to a court, if they were made in furtherance of litigation.

Herterich v. Peltner - filed March 1, 2018, First District, Div. One
Cite as 2018 S.O.S. 1025

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Wednesday, February 28, 2018

Brown v. Cal. Unemployment Ins. Appeals Bd.

The question in this case is a narrow one, involving the correct rate of interest to be applied after a court determines that unemployment benefits have been wrongfully withheld by the Employment Development Department (EDD) and the California Unemployment Insurance Appeals Board (Board).  Appellant Mark Brown (Brown) argues that interest should be charged at the contract rate of 10 percent from the date that each benefit payment was due, in accordance with Civil Code section 3289, subdivision (b).  EDD, in contrast, asserts that the trial court correctly determined that any such interest should be calculated at the rate of 7 percent, as authorized by article XV, section 1, of the California Constitution and Government Code section 965.5, subdivisions (a) and (d).  We conclude that the trial court applied the incorrect interest rate to the wrongfully withheld benefits at issue.  Accordingly, we reverse for recalculation of interest, but affirm in all other respects.

Brown v. Cal. Unemployment Ins. Appeals Bd. (CA1/4 A145487 2/28/18) Unemployment Benefits Rate of Interest

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City of South San Francisco v. Workers' Compensation Appeals Board

An employer is not liable for a cumulative injury under Labor Code Sec. 5500.5(a) absent evidence that exposure during that employment was injurious. Labor Code Sec. 3212.1's presumption of industrial causation serves to protect an injured worker, not to allow for an allocation of liability between employers.

City of South San Francisco v. Workers' Compensation Appeals Board - filed Feb. 26, 2018, First District, Div. Five
Cite as 2018 S.O.S. 963

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Tuesday, February 27, 2018

Victaulic Company v. American Home Assurance Company

A defendant's responses to requests for admission denying an allegation is not admissible as evidence regardless of whether the denial is consistent or inconsistent with the testimony of a defense witness at trial. RFA responses represent legal strategy, not statements of fact. While a trial court has the power to examine witnesses, it cannot act as a cross-examiner. A trial judge committed reversible misconduct by grilling a witness, and openly mocking her. The Fifth Amendment privilege must be asserted with specific reference to particular questions asked or other evidence sought. A blanket refusal to testify is unacceptable. It is improper for a court to require a witness to invoke her Fifth Amendment privilege in front of a jury.

Victaulic Company v. American Home Assurance Company -
filed Feb. 26, 2018, First District, Div. Two
Cite as 2018 S.O.S. 927

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Local Joint Executive Board of Las Vegas v. NLRB (Archon Corp.)

The National Labor Relations Board abused its discretion in declining to award a union make-whole relief, which is the standard remedy when an employer unlawfully ceases a union's dues-checkoff, without providing a valid explanation for its decision. The board's decision to deviate from its standard remedy in light of the employer's reliance on board precedent was improper because that precedent had never been applied in a reasoned manner in the absence of a union security clause.

Local Joint Executive Board of Las Vegas v. NLRB (Archon Corp.) - filed Feb. 27, 2018
Cite as 2018 S.O.S. 15-72878

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Bel Air Internet, LLC v. Morales

This appeal requires us to consider the role of the pleadings and supporting declarations in deciding a motion to strike under the anti-SLAPP statute (Code Civ. Proc., § 425.16).  Section 425.16 protects the exercise of certain constitutional rights by permitting a motion to strike when a complaint targets specified conduct that involves the right to freedom of speech or the right to petition the government.  When a plaintiff’s complaint shows that a claim arises from communications that are protected under the statute, must the defendant support a motion to strike with declarations confirming that his or her actions fall within one of the categories of protected conduct?

We conclude that, when the complaint itself alleges protected activity, a moving party may rely on the plaintiff’s allegations alone in arguing that the plaintiff’s claims arise from an act “in furtherance of the person’s right of petition or free speech.”  (§ 425.16, subd. (b)(1).)  While section 425.16 requires a court to consider both the “pleadings” and the “supporting and opposing affidavits stating the facts upon which the liability or defense is based” (§ 425.16, subd. (b)(2)), it does not require a moving party to submit declarations confirming the factual basis for the plaintiff’s claims.  Otherwise, a defendant who disputes the plaintiff’s allegations (as appellants do here) might be precluded from bringing an anti-SLAPP motion.  That would have the perverse effect of making anti-SLAPP relief unavailable when a plaintiff alleges a baseless claim, which is precisely the kind of claim that section 425.16 was intended to address.  (See Baral v. Schnitt (2016) 1 Cal.5th 376, 384 (Baral) [the anti-SLAPP statute “provides a procedure for weeding out, at an early stage, meritless claims arising from protected activity”].)

Here, plaintiff and respondent Bel Air Internet, LLC (Bel Air) alleges that defendants and appellants Albert Morales and Flavio Delabra (collectively, Appellants) encouraged fellow employees of Bel Air to quit and sue the company for alleged employment violations rather than sign a release of such claims that Bel Air requested.  Consistent with several decisions by our Supreme Court, we conclude that such prelitigation conduct encouraging third parties to sue is protected petitioning activity under section 425.16, subdivision (e).  In bringing a motion to strike under that section, Appellants could rely on Bel Air’s allegations that they urged other employees to quit and sue, even though Appellants denied engaging in this conduct. We therefore reverse the trial court’s order denying Appellants’ motion to strike.

Bel Air Internet, LLC v. Morales (CA2/2 B270268 2/26/18) Anti-SLAPP

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Cal Fire Local 2881 v. Public Employment Relations Bd.

This appeal has consumed nearly seven years of administrative and judicial resources in the pursuit of an untenable litigation position.  Plaintiff Cal Fire Local 2881 (plaintiff) is an employee association that acts as the exclusive representative of a bargaining unit of personnel in various classifications in the civil service who work throughout the state for appointing power Cal Fire (which is not a party to this case).  Plaintiff appeals from the denial of its petition for a writ of mandate directing defendant Public Employment Relations Board (the PERB) to issue a complaint on the unfair labor practice charge that plaintiff filed with it against real party in interest State Personnel Board for failure to meet and confer with plaintiff over the changes the State Personnel Board effected in the regulations governing its procedures for adjudicating disciplinary hearings and appeals, which apply uniformly to all employees in the civil service.

Both the PERB and the trial court have provided cogent decisions explaining why this challenge to the PERB’s dismissal of the charge is without any basis in law.  Plaintiff nonetheless persists.  Fortunately for plaintiff, neither the PERB (which appears in this court to defend the judgment) nor the State Personnel Board request imposition of sanctions for a frivolous appeal.  We accordingly affirm the judgment.

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Johnen v. MSPB

Johnen v. MSPB (9th Cir. 16-73427 2/16/18) Merit System Protection Board

The panel dismissed a petition for review as to the United States Merit Systems Protection Board; and denied in part, granted in part, and remanded the petition for review as to the United States Department of the Army in a case brought by a former civilian employee at Fort Hunter Liggett, a military base in California alleging that the Army terminated him and excluded him from his work site because he had made complaints that were protected by the Whistleblower Protection Act of 1989.

The Board affirmed the administrative law judge’s finding that the petitioner failed to make a prima facie case that his complaint to the Department of Defense Inspector General was a contributing factor in the Army’s decision to terminate him and exclude him from a work site.

The panel held that the Army was the only proper respondent in this case where petitioner brought a “mixed case” by challenging both jurisdictional or procedural matters and the merits of an adverse personnel action. The panel further held that because petitioner was seeking review of the Board’s decision on the merits of his termination and exclusion, the Board was not the proper respondent; and only the agency that took the action – the Army – was properly “the” respondent.

The panel also held that the petitioner received due process. The panel rejected petitioner’s argument that the Board violated his due process rights by deciding his appeal when only two Board members, instead of the usual three, held office.

Finally, the panel held that the Board’s decision on the merits was supported by substantial evidence and was procedurally proper.

In a separate memorandum disposition, the panel granted the petition in part and remanded the case for consideration of an additional issue.

Johnen v. MSPB (9th Cir. 16-73427 2/16/18) Merit System Protection Board

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Duggan v. Dept. of Defense

The panel denied a petition for review in an action brought by a senior auditor at the Defense Contract Audit Agency (“DCAA”) under the Whistleblower Protection Act against the Department of Defense, alleging that the Department took several adverse personnel actions against him in retaliation for his protected disclosures at the DCAA.

The panel held that substantial evidence supported the Merit Systems Protection Board’s ultimate determination that the DCAA’s personnel actions were not in retaliation for petitioner’s whistleblowing. Specifically, the panel assumed for purposes of its analysis that petitioner established a prima facie case that all seven of his communications were protected disclosures. The panel adopted the Federal Circuit’s test, outlined in Carr v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999), for determining whether the agency – the DCAA – carried its burden of proving by clear and convincing evidence that it would have taken the same personnel actions against petitioner in the absence of his protected disclosures.

The panel also held that the administrative law judge permissibly excluded disputed evidence.

Duggan v. Dept. of Defense (9th Cir. 16-73640 2/26/18) Whistleblower Protection Act

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Monday, February 26, 2018

Muro v. Cornerstone Staffing Solutions

Plaintiff Tony Muro entered into an employment contract with defendant Cornerstone Staffing Solutions, Inc. (Cornerstone).  The contract included a provision requiring that all disputes arising out of Muro's employment with Cornerstone to be resolved by arbitration.  It also incorporated a class action waiver provision.  In response to Muro's present action, which was styled as a proposed class action and alleged various Labor Code violations, Cornerstone moved to compel arbitration and dismiss the class claims.

Relying heavily on Garrido v. Air Liquide Industrial, U.S. LP (2015) 241 Cal.App.4th 833 (Garrido), the trial court concluded the contract was exempted from the operation of the Federal Arbitration Act (FAA; 9 U.S.C. § 1 et seq.) and was instead governed by California law.  It further determined that the California Supreme Court's decision in Gentry v. Superior Court (2007) 42 Cal.4th 443 (Gentry) (overruled on other grounds in Iskarian v. CLS Tranportation, Los Angeles, LLC (2014) 59 Cal.4th 348) continued to provide the relevant framework for evaluating whether the class waiver provision in the contract was enforceable under California law.  After applying Gentry to the record here, the court found the class waiver provision of the contract unenforceable and denied the motion to compel arbitration.  Cornerstone appeals, but finding no error, we affirm.

Muro v. Cornerstone Staffing Solutions - filed Feb. 23, 2018, Fourth District, Div. One
Cite as 2018 S.O.S. 871
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Santomenno v. Transamerica LIC

The panel (1) reversed the district court’s order denying defendants’ motion to dismiss an ERISA case alleging breach of fiduciary duties in connection with a retirement plan, and (2) vacated the district court’s subsequent class certification orders. The district court held that a plan service provider breached its fiduciary duties to plan beneficiaries first when negotiating with an employer about providing services to the plan and later when withdrawing predetermined fees from plan funds. An employer that forms an ERISA plan is a statutory fiduciary, and a plan service provider becomes a functional fiduciary under certain circumstances.

Joining other circuits, the panel held that a plan administrator is not an ERISA fiduciary when negotiating its compensation with a prospective customer. As to alleged breaches after the defendant became a plan service provider, the panel held that the defendant was not a fiduciary with respect to its receipt of revenue sharing payments from investment managers because the payments were fully disclosed before the provider agreements were signed and did not come from plan assets. Agreeing with other circuits, the panel held that defendant also was not a fiduciary with respect to its withdrawal of preset fees from plan funds. The panel concluded that when a service provider’s definitively calculable and nondiscretionary compensation is clearly set forth in a contract with the fiduciary-employer, collection of fees out of plan funds in strict adherence to that contractual term is not a breach of the provider’s fiduciary duty.

The panel remanded with instructions to the district court to dismiss the complaint.

Santomenno v. Transamerica Life Insurance Company - filed Feb. 23, 2018
Cite as 2018 S.O.S. 16-56418

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Friday, February 23, 2018

Area 51 Productions v. City of Alameda

A plaintiff's cause of action against a city for reneging on a long-standing arrangement to license an area for the plaintiff to hold private events does not arise from a protected activity for purposes of the anti-SLAPP statute. While conduct alleged to constitute breach of contract may qualify as constitutionally protected speech or petitioning, communicative acts that are merely collateral to a claim or evidence that may be probative of a breach do not qualify as protected speech. The anti-SLAPP statute can apply to the expressive conduct of individual representatives of a government body who are being sued for actions they took on behalf of that government body. Under Code of Civil Procedure Sec. 425.16(e)(2), the pendency of an issue before a government body is a proxy for its character as public in nature.

Area 51 Productions v. City of Alameda - filed Feb. 20, 2018, First District, Div. Four
Cite as 2018 S.O.S. 826

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Wednesday, February 21, 2018

Digital Realty Trust, Inc. v. Somers

Endeavoring to root out corporate fraud, Congress passed the Sarbanes-Oxley Act of 2002 (Sarbanes-Oxley) and the 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank). Both Acts shield whistleblowers from retaliation, but they differ in important respects. Sarbanes-Oxley applies to all “employees” who report misconduct to the Securities and Exchange Commission (SEC or Commission), any other federal agency, Congress, or an internal supervisor. 18 U. S. C. §1514A(a)(1). Dodd-Frank defines a “whistleblower” as “any individual who provides . . . information relating to a violation of the securities laws to the Commission, in a manner established, by rule or regulation, by the Commission.” 15 U. S. C. §78u– 6(a)(6). A whistleblower so defined is eligible for an award if original information provided to the SEC leads to a successful enforcement action. §78u–6(b)–(g). And he or she is protected from retaliation in three situations, see §78u–6(h)(1)(A)(i)–(iii), including for “making disclosures that are required or protected under” Sarbanes-Oxley or other specified laws, §78u–6(h)(1)(A)(iii). Sarbanes-Oxley’s anti-retaliation provision contains an administrative-exhaustion requirement and a 180-day administrative complaint-filing deadline, see 18 U. S. C. §1514A(b)(1)(A), (2)(D), whereas Dodd-Frank permits a whistleblower to sue an employer directly in federal district court, with a default six-year limitation period, see §78u–6(h)(1)(B)(i), (iii)(I)(aa).

The SEC’s regulations implementing the Dodd-Frank provision contain two discrete whistleblower definitions. For purposes of the award program, Rule 21F–2 requires a whistleblower to “provide the Commission with information” relating to possible securities-law violations. 17 CFR §240.21F–2(a)(1). For purposes of the anti-retaliation protections, however, the Rule does not require SEC reporting. See §240.21F–2(b)(1)(i)–(ii).

Respondent Paul Somers alleges that petitioner Digital Realty Trust, Inc. (Digital Realty) terminated his employment shortly after he reported to senior management suspected securities-law violations by the company. Somers filed suit, alleging, inter alia, a claim of whistleblower retaliation under Dodd-Frank. Digital Realty moved to dismiss that claim on the ground that Somers was not a whistleblower under §78u–6(h) because he did not alert the SEC prior to his termination. The District Court denied the motion, and the Ninth Circuit affirmed. The Court of Appeals concluded that §78u–6(h) does not necessitate recourse to the SEC prior to gaining “whistleblower” status, and it accorded deference to the SEC’s regulation under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837.

Held: Dodd-Frank’s anti-retaliation provision does not extend to an individual, like Somers, who has not reported a violation of the securities laws to the SEC. Pp. 9–19.

(a) A statute’s explicit definition must be followed, even if it varies from a term’s ordinary meaning. Burgess v. United States, 553 U. S. 124, 130. Section 78u–6(a) instructs that the statute’s definition of “whistleblower” “shall apply” “[i]n this section,” that is, throughout §78u–6. The Court must therefore interpret the term “whistleblower” in §78u–6(h), the anti-retaliation provision, in accordance with that definition.

The whistleblower definition operates in conjunction with the three clauses of §78u–6(h)(1)(A) to spell out the provision’s scope. The definition first describes who is eligible for protection—namely, a “whistleblower” who provides pertinent information “to the Commission.” §78u–6(a)(6). The three clauses then describe what conduct, when engaged in by a “whistleblower,” is shielded from employment discrimination. An individual who meets both measures may invoke Dodd-Frank’s protections. But an individual who falls outside the protected category of “whistleblowers” is ineligible to seek redress under the statute, regardless of the conduct in which that individual engages. This reading is reinforced by another whistleblower protection provision in Dodd-Frank, see 12 U. S. C. §5567(b), which imposes no requirement that information be conveyed to a government agency. Pp. 9–11.

(b) The Court’s understanding is corroborated by Dodd-Frank’s purpose and design. The core objective of Dodd-Frank’s whistleblower program is to aid the Commission’s enforcement efforts by “motivat[ing] people who know of securities law violations to tell the SEC.” S. Rep. No. 111–176, p. 38 (emphasis added). To that end, Congress provided monetary awards to whistleblowers who furnish actionable information to the Commission. Congress also complemented the financial incentives for SEC reporting by heightening protection against retaliation. Pp. 11–12.

(c) Somers and the Solicitor General contend that Dodd-Frank’s “whistleblower” definition applies only to the statute’s award program and not, as the definition plainly states, to its anti-retaliation provision. Their concerns do not support a departure from the statutory text. Pp. 12–18.

(1) They claim that the Court’s reading would vitiate the protections of clause (iii) for whistleblowers who make disclosures to persons and entities other than the SEC. See §78u–6(h)(1)(A)(iii). But the plain-text reading of the statute leaves the third clause with substantial meaning by protecting a whistleblower who reports misconduct both to the SEC and to another entity, but suffers retaliation because of the latter, non-SEC, disclosure. Pp. 13–15.

(2) Nor would the Court’s reading jettison protections for auditors, attorneys, and other employees who are required to report information within the company before making external disclosures. Such employees would be shielded as soon as they also provide relevant information to the Commission. And Congress may well have considered adequate the safeguards already afforded to such employees by Sarbanes-Oxley. Pp. 15–16.

(3) Applying the “whistleblower” definition as written, Somers and the Solicitor General further protest, will allow “identical misconduct” to “go punished or not based on the happenstance of a separate report” to the SEC. Brief for Respondent 37–38. But it is understandable that the statute’s retaliation protections, like its financial rewards, would be reserved for employees who have done what Dodd-Frank seeks to achieve by reporting information about unlawful activity to the SEC. P. 16.

(4) The Solicitor General observes that the statute contains no apparent requirement of a “temporal or topical connection between the violation reported to the Commission and the internal disclosure for which the employee suffers retaliation.” Brief for United States as Amicus Curiae 25. The Court need not dwell on related hypotheticals, which veer far from the case at hand. Pp. 16–18.

(5) Finally, the interpretation adopted here would not undermine clause (ii) of §78u–6(h)(1)(A), which prohibits retaliation against a whistleblower for “initiating, testifying in, or assisting in any investigation or . . . action of the Commission based upon” information conveyed to the SEC by a whistleblower in accordance with the statute. The statute delegates authority to the Commission to establish the “manner” in which a whistleblower may provide information to the SEC. §78u–6(a)(6). Nothing prevents the Commission from enumerating additional means of SEC reporting, including through testimony protected by clause (ii). P. 18.

(d) Because “Congress has directly spoken to the precise question at issue,” Chevron, 467 U. S., at 842, deference is not accorded to the contrary view advanced by the SEC in Rule 21F–2. Pp. 18–19.

850 F. 3d 1045, reversed and remanded.

GINSBURG, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. SOTOMAYOR, J., filed a concurring opinion, in which BREYER, J., joined. THOMAS, J., filed an opinion concurring in part and concurring in the judgment, in which ALITO and GORSUCH, JJ., joined.

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Hurley v. California Department of Parks and Recreation

The Information Practices Act's definition of "record" and "personal information" does not restrict an agency's maintenance of qualifying personal information to only a single, official personnel file at a single location.

Hurley v. California Department of Parks and Recreation - filed Feb. 21, 2018, Fourth District, Div. One
Cite as 2018 S.O.S. 814

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Tuesday, February 20, 2018

CNH Industrial N.V. v. Reese

The U.S. 6th Circuit Court of Appeals erred in applying a series of inferences it laid out in a 1983 case called International Union, United Auto, Aerospace, & Agricultural Implement Workers of America v. Yard-Man that were later rejected by the U.S. Supreme Court in order to find that a collective bargaining agreement was ambiguous. A contract is not ambiguous unless it is subject to more than one reasonable interpretation and the 6th Circuit's "Yard-Man inferences" cannot generate a reasonable interpretation because they are not "ordinary principles of contract law."

CNH Industrial N.V. v. Reese - filed Feb. 20, 2018
Cite as 2018 S.O.S. 17-515_2c83

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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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