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.

For more information contact us at:
http://beverlyhillsemploymentlaw.com/

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.

For more information contact us at:
http://beverlyhillsemploymentlaw.com/

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.

For More information visit us at:
http://beverlyhillsemploymentlaw.com/

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

For more information contact us at:
http://beverlyhillsemploymentlaw.com/

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.

For more information contact us at:
http://beverlyhillsemploymentlaw.com/

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.

For more information contact us at:
http://beverlyhillsemploymentlaw.com/

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.

For more information visit us at:
http://beverlyhillsemploymentlaw.com/

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.

For more information visit us at:
http://beverlyhillsemploymentlaw.com/

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

For more information visit us at:
http://beverlyhillsemploymentlaw.com/

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.

For more information contact us at:
http://beverlyhillsemploymentlaw.com/

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

For more information visit us at:
http://beverlyhillsemploymentlaw.com/

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

For more information contact us at:
http://beverlyhillsemploymentlaw.com/

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

For more information contact us at:
http://beverlyhillsemploymentlaw.com/

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

For more information visit us at:
http://beverlyhillsemploymentlaw.com/

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.

For more information contact us at:
http://beverlyhillsemploymentlaw.com/

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).

http://beverlyhillsemploymentlaw.com/

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

For more information contact us at:
http://beverlyhillsemploymentlaw.com/