Friday, January 18, 2019

Rall v. Tribune 365 LLC

Plaintiff Frederick Theodore Rall III, a political cartoonist and blogger, sued Los Angeles Times Communications LLC (The Times) after it published a “note to readers” and a later more detailed report questioning the accuracy of a blog post plaintiff wrote for The Times.  The Times told its readers that it had serious questions about the accuracy of the blog post; that the piece should not have been published; and that plaintiff’s future work would not appear in The Times.  Plaintiff sued The Times, related entities, and several individual defendants, alleging causes of action for defamation and for wrongful termination in violation of public policy, among other claims.

All defendants filed anti-SLAPP (strategic lawsuit against public participation) motions to strike plaintiff’s complaint (Code Civ. Proc., § 425.16).  The trial court granted the motions.  We affirm the trial court’s orders.

For more information, go to: 

Thursday, January 17, 2019

NLRB Provides Email Address for Alternate Method to Submit Public Comments on Proposed Joint-Employer Rulemaking Due to Partial Shutdown

Office of Public Affairs
202-273-1991
publicinfo@nlrb.gov
www.nlrb.gov

January 17, 2019

Washington, DC — In light of the partial government shutdown and subsequent shutdown of Regulations.gov, the National Labor Relations Board (NLRB) today announced the establishment of an email address for the electronic submission of public comments on the proposed joint-employer rulemaking.  The public can now submit comments electronically to Regulations@nlrb.gov.  In addition to emailing comments to Regulations@nlrb.gov, comments can also be submitted by mail or hand-delivery to Roxanne Rothschild, Acting Executive Secretary, National Labor Relations Board, 1015 Half Street S.E., Washington, D.C. 20570-0001.

Comments must be received on or before January 28, 2019.  Comments replying to the comments submitted during the initial comment period must be received by the NLRB on or before February 11, 2019.

For more information, go to: 

Robles v. Dominos Pizza LLC

The panel reversed the district court’s dismissal of an action under Title III of the Americans with Disabilities Act and California’s Unruh Civil Rights Act, alleging that Domino’s Pizza’s website and mobile application were not fully accessible to a blind or visually impaired person.

The panel held that the ADA applied to Domino’s website and app because the Act mandates that places of public accommodation, like Domino’s, provide auxiliary aids and services to make visual materials available to individuals who are blind. Even though customers primarily accessed the website and app away from Domino’s physical restaurants, the panel stated that the ADA applies to the services of a public accommodation, not services in a place of public accommodation. The panel stated that the website and app connected customers to the goods and services of Domino’s physical restaurants.

The panel held that imposing liability on Domino’s under the ADA would not violate the company’s Fourteenth Amendment right to due process. The panel held that the statute was not impermissibly vague, and Domino’s had received fair notice that its website and app must comply with the ADA. Further, the plaintiff did not seek to impose liability on Domino’s for failure to comply with the Web Content Accessibility Guidelines 2.0, private industry standards for website accessibility. Rather, an order requiring compliance with WCAG 2.0 was a possible equitable remedy. Finally, the lack of specific regulations, not yet promulgated by the Department of Justice, did not eliminate Domino’s statutory duty.

The panel held that the district court erred in invoking the prudential doctrine of primary jurisdiction, which allows courts to stay proceedings or to dismiss a complaint without prejudice pending the resolution of an issue within the special competence of an administrative agency. The panel reasoned that the DOJ was aware of the issue, and its withdrawal of an Advanced Notice of Proposed Rulemaking meant that undue delay was inevitable. The delay was needless because the application of the ADA to the facts of this case was well within the district court’s competence. The panel remanded the case to the district court.

For more information, go to: 

Mendoza v. Fonseca McElroy Grinding Co.

The panel certified the following question to the California Supreme Court:

Is operating engineers’ offsite “mobilization work”—including the transportation to and from a public works site of roadwork grinding equipment—performed “in the execution of [a] contract for public work,” Cal. Lab. Code § 1772, such that it entitles workers to “not less than the general prevailing rate of per diem wages for work of a similar character in the locality in which the public work is performed” pursuant to section 1771 of the California Labor Code?

For more information, go to:

Tuesday, January 15, 2019

New Prime Inc. v. Oliveira

Petitioner New Prime Inc. is an interstate trucking company, and respondent Dominic Oliveira is one of its drivers. Mr. Oliveira works under an operating agreement that calls him an independent contractor and contains a mandatory arbitration provision. When Mr. Oliveira filed a class action alleging that New Prime denies its drivers lawful wages, New Prime asked the court to invoke its statutory authority under the Federal Arbitration Act to compel arbitration. Mr. Oliveira countered that the court lacked authority because §1 of the Act excepts from coverage disputes involving “contracts of employment” of certain transportation workers. New Prime insisted that any question regarding §1’s applicability belonged to the arbitrator alone to resolve, or, assuming the court could address the question, that “contracts of employment” referred only to contracts that establish an employer-employee relationship and not to contracts with independent contractors. The District Court and First Circuit agreed with Mr. Oliveira.

Held:

1. A court should determine whether a §1 exclusion applies before ordering arbitration. A court’s authority to compel arbitration under the Act does not extend to all private contracts, no matter how emphatically they may express a preference for arbitration. Instead, antecedent statutory provisions limit the scope of a court’s §§3 and 4 powers to stay litigation and compel arbitration “accord[ing to] the terms” of the parties’ agreement. Section 2 provides that the Act applies only when the agreement is set forth as “a written provision in any maritime transaction or a contract evidencing a transaction involving commerce.” And §1 helps define §2’s terms, warning, as relevant here, that “nothing” in the Act “shall apply” to “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” For a court to invoke its statutory authority under §§3 and 4, it must first know if the parties’ agreement is excluded from the Act’s coverage by the terms of §§1 and 2. This sequencing is significant. See, e.g., Bernhardt v. Polygraphic Co. of America, 350 U. S. 198, 201–202. New Prime notes that the parties’ contract contains a “delegation clause,” giving the arbitrator authority to decide threshold questions of arbitrability, and that the “severability principle” requires that both sides take all their disputes to arbitration. But a delegation clause is merely a specialized type of arbitration agreement and is enforceable under §§3 and 4 only if it appears in a contract consistent with §2 that does not trigger §1’s exception. And, the Act’s severability principle applies only if the parties’ arbitration agreement appears in a contract that falls within the field §§1 and 2 describe. Pp. 3–6.

2. Because the Act’s term “contract of employment” refers to any agreement to perform work, Mr. Oliveira’s agreement with New Prime falls within §1’s exception. Pp. 6–15.

(a) “[I]t’s a ‘fundamental canon of statutory construction’ that words generally should be ‘interpreted as taking their ordinary . . . meaning . . . at the time Congress enacted the statute.’ ” Wisconsin Central Ltd. v. United States, 585 U. S. ___, ___ (quoting Perrin v. United States, 444 U. S. 37, 42). After all, if judges could freely invest old statutory terms with new meanings, this Court would risk amending legislation outside the “single, finely wrought and exhaustively considered, procedure” the Constitution commands. INS v. Chadha, 462 U. S. 919, 951. The Court would risk, too, upsetting reliance interests by subjecting people today to different rules than they enjoyed when the statute was passed. At the time of the Act’s adoption in 1925, the phrase “contract of employment” was not a term of art, and dictionaries tended to treat “employment” more or less as a synonym for “work.” Contemporaneous legal authorities provide no evidence that a “contract of employment” necessarily signaled a formal employer-employee relationship. Evidence that Congress used the term “contracts of employment” broadly can be found in its choice of the neighboring term “workers,” a term that easily embraces independent contractors. Pp. 6–10.

(b) New Prime argues that by 1925, the words “employee” and “independent contractor” had already assumed distinct meanings. But while the words “employee” and “employment” may share a common root and intertwined history, they also developed at different times and in at least some different ways. The evidence remains that, as dominantly understood in 1925, a “contract of employment” did not necessarily imply the existence of an employer-employee relationship. New Prime’s argument that early 20th-century courts sometimes used the phrase “contracts of employment” to describe what are recognized today as agreements between employers and employees does nothing to negate the possibility that the term also embraced agreements by independent contractors to perform work. And its effort to explain away the statute’s suggestive use of the term “worker” by noting that the neighboring terms “seamen” and “railroad employees” included only employees in 1925 rests on a precarious premise. The evidence suggests that even “seamen” and “railroad employees” could be independent contractors at the time the Arbitration Act passed. Left to appeal to the Act’s policy, New Prime suggests that this Court order arbitration to abide Congress’ effort to counteract judicial hostility to arbitration and establish a favorable federal policy toward arbitration agreements. Courts, however, are not free to pave over bumpy statutory texts in the name of more expeditiously advancing a policy goal. Rather, the Court should respect “the limits up to which Congress was prepared” to go when adopting the Arbitration Act. United States v. Sisson, 399 U. S. 267, 298. This Court also declines to address New Prime’s suggestion that it order arbitration anyway under its inherent authority to stay litigation in favor of an alternative dispute resolution mechanism of the parties’ choosing.

Pp. 10–15. 857 F. 3d 7, affirmed. 

GORSUCH, J., delivered the opinion of the Court, in which all other Members joined, except KAVANAUGH, J., who took no part in the consideration or decision of the case. GINSBURG, J., filed a concurring opinion.

For more information, go to:

Monday, January 14, 2019

Duffey v. Tender Heart Home Care Agency

Plaintiff Nichelle Duffey (Plaintiff) sued defendant Tender Heart Home Care Agency, LLC (Tender Heart) for, among other claims, failure to pay overtime wages under the Domestic Worker Bill of Rights (Labor Code, §§ 1450 et seq.; DWBR), which requires that domestic work employees receive overtime wages for all hours worked more than nine hours per day or 45 hours per week.  The trial court granted Tender Heart’s motion for summary adjudication on the DWBR cause of action, finding the undisputed facts demonstrated Plaintiff was an independent contractor rather than an employee of Tender Heart for purposes of the DWBR.  We first conclude the trial court erred in exclusively applying the so-called “common law” test set forth in S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341 (Borello), to determine the issue.  We next conclude that, under the appropriate tests, there is a dispute of fact as to whether Plaintiff was Tender Heart’s employee.  Accordingly, we reverse and remand.

For more information, go to: 

Ricasa v. Office of Admin. Hearings

Southwestern Community College District (District) and its governing board (Board) (together Southwestern) demoted Arlie Ricasa from an academic administrator position to a faculty position on the grounds of moral turpitude, immoral conduct, and unfitness to serve in her then-current role.  Ricasa filed two petitions for writs of administrative mandamus in the trial court seeking, among other things, to set aside the demotion and reinstate her as an academic administrator.

Ricasa appeals from the denial of her petitions, arguing the demotion occurred in violation of the Ralph M. Brown Act (the Brown Act) (Gov. Code, § 54950 et seq.) because Southwestern failed to provide her with 24 hours' notice of the hearing at which it heard charges against her, as required by Government Code section 54957.  Assuming we reject her first argument, she argues that the demotion was unconstitutional because no nexus exists between her alleged misconduct and her fitness to serve as academic administrator.  

Southwestern also appeals, arguing that the trial court made two legal errors when it:  (1) held that Southwestern was required to give 24-hour notice under the Brown Act prior to conducting a closed session at which it voted to initiate disciplinary proceedings, and (2) enjoined Southwestern from committing future Brown Act violations.

We conclude that Southwestern did not violate the Brown Act and that substantial evidence supported Ricasa's demotion.  However, we reverse that part of the judgment enjoining Southwestern from future Brown Act violations.

For more information, go to: 

NLRB Further Extends Time for Submitting Comments on Proposed Joint-Employer Rulemaking in Light of DC Circuit’s Recent Browning-Ferris Decision


In light of the unique circumstance presented by the December 28, 2018 issuance by the United States Court of Appeals for the District of Columbia Circuit of its decision in Browning-Ferris Industries of California v. NLRB, --- F.3d ---, 2018 WL 6816542, the National Labor Relations Board (“NLRB”) is extending the time for submitting comments regarding its Notice of Proposed Rulemaking (“NPRM”) on joint-employer status in order to permit issues raised by that decision to be addressed.  Comments must now be received on or before January 28, 2019.  Comments replying to the comments submitted during the initial comment period must be received by the NLRB on or before February 11, 2019.

Public comments should be submitted either electronically to www.regulations.gov, or by mail or hand-delivery to Roxanne Rothschild, Acting Executive Secretary, National Labor Relations Board, 1015 Half Street S.E., Washington, D.C. 20570-0001.

Due to the partial government shutdown, the Office of the Federal Register is unable to publish the notice of this extension.   Please refer to the order here.

Click here to read the request for comments in the Federal Register.

Click here to read the original announcement regarding the Notice of Proposed Rule-Making.

For more information, go to: 

Wednesday, January 9, 2019

NLRB Division of Judges Issues Updated Bench Book

Washington, D.C—The Judges Division of the National Labor Relations Board (NLRB) has issued an updated Bench Book, which replaces an earlier version issued in January 2018.  The new January 2019 edition contains citations to numerous additional Board and court decisions and other authorities.  It also contains several new sections, including sections addressing compliance/backpay proceedings and consolidated unfair labor practice (ULP) and representation cases. In addition, certain sections have been substantially reorganized, including those addressing privileged or protected material.  

Like the 2018 edition, the new 2019 edition was edited by NLRB Administrative Law Judge (ALJ) Jeffrey Wedekind and contains a Foreword by Chief ALJ Robert Giannasi describing the Bench Book’s history and purpose.  As discussed in the Foreword, the basic sources that govern Board ULP hearings are the National Labor Relations Act (NLRA), the Administrative Procedure Act (APA), the Board's Rules and Regulations and Statements of Procedure, and Board decisions. The Board also applies, so far as practicable, the Federal Rules of Evidence (FRE), and frequently seeks guidance from the Federal Rules of Civil Procedure (FRCP).  The Bench Book serves as an NLRB Trial Manual, and is designed to provide NLRB judges with a reference guide during hearings.  It is also a useful tool for trial practitioners before the Board because it sets forth Board precedent and other rulings and authorities on certain recurring procedural and evidentiary issues that may arise during a hearing.

The National Labor Relations Board is an independent federal agency vested with the power to safeguard employees’ rights to organize and to determine whether to have unions as their bargaining representative. The agency also acts to prevent and remedy unfair labor practices committed by private sector employers and unions. 

For more information, go to: 

Tuesday, January 8, 2019

Henry Schein, Inc. v. Archer & White Sales, Inc.

Respondent Archer & White Sales, Inc., sued petitioner Henry Schein, Inc., alleging violations of federal and state antitrust law and seeking both money damages and injunctive relief. The relevant contract between the parties provided for arbitration of any dispute arising under or related to the agreement, except for, among other things, actions seeking injunctive relief. Invoking the Federal Arbitration Act, Schein asked the District Court to refer the matter to arbitration, but Archer & White argued that the dispute was not subject to arbitration because its complaint sought injunctive relief, at least in part. Schein contended that because the rules governing the contract provide that arbitrators have the power to resolve arbitrability questions, an arbitrator—not the court—should decide whether the arbitration agreement applied. Archer & White countered that Schein’s argument for arbitration was wholly groundless, so the District Court could resolve the threshold arbitrability question. The District Court agreed with Archer & White and denied Schein’s motion to compel arbitration. The Fifth Circuit affirmed.

Held: The “wholly groundless” exception to arbitrability is inconsistent with the Federal Arbitration Act and this Court’s precedent. Under the Act, arbitration is a matter of contract, and courts must enforce arbitration contracts according to their terms. Rent-A-Center, West, Inc. v. Jackson, 561 U. S. 63, 67. The parties to such a contract may agree to have an arbitrator decide not only the merits of a particular dispute, but also “ ‘gateway’ questions of ‘arbitrability.’ ” Id., at 68– 69. Therefore, when the parties’ contract delegates the arbitrability question to an arbitrator, a court may not override the contract, even if the court thinks that the arbitrability claim is wholly groundless. That conclusion follows also from this Court’s precedent. See AT&T Technologies, Inc. v. Communications Workers, 475 U. S. 643, 649– 650.

Archer & White’s counterarguments are unpersuasive. First, its argument that §§3 and 4 of the Act should be interpreted to mean that a court must always resolve questions of arbitrability has already been addressed and rejected by this Court. See, e.g., First Options of Chicago, Inc. v. Kaplan, 514 U. S. 938, 944. Second, its argument that §10 of the Act—which provides for back-end judicial review of an arbitrator’s decision if an arbitrator has “exceeded” his or her “powers”—supports the conclusion that the court at the front end should also be able to say that the underlying issue is not arbitrable is inconsistent with the way Congress designed the Act. And it is not this Court’s proper role to redesign the Act. Third, its argument that it would be a waste of the parties’ time and money to send wholly groundless arbitrability questions to an arbitrator ignores the fact that the Act contains no “wholly groundless” exception. This Court may not engraft its own exceptions onto the statutory text. Nor is it likely that the exception would save time and money systemically even if it might do so in some individual cases. Fourth, its argument that the exception is necessary to deter frivolous motions to compel arbitration overstates the potential problem. Arbitrators are already capable of efficiently disposing of frivolous cases and deterring frivolous motions, and such motions do not appear to have caused a substantial problem in those Circuits that have not recognized a “wholly groundless” exception.

The Fifth Circuit may address the question whether the contract at issue in fact delegated the arbitrability question to an arbitrator, as well as other properly preserved arguments, on remand. Pp. 4–8. 878 F. 3d 488, vacated and remanded.

KAVANAUGH, J., delivered the opinion for a unanimous Court.

For more information, go to: 

Monday, January 7, 2019

International Brotherhood of Electrical Workers, Local Union 357, AFL-CIO (Desert Sun Enterprises Limited d/b/a Convention Technical Services)

The Board (Chairman Ring and Member Kaplan; Member McFerran, dissenting) adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(b)(4)(ii)(B) when it notified a neutral employer at a common situs that it intended to picket and it did not qualify that it would comply with the legal limitations on common situs picketing so as to not entangle neutrals.  After acknowledging that this longstanding unqualified-threat rule has not been clearly explained by the Board and that some courts have disapproved of it, the Board majority stood by the rule with a full explanation of its basis in Congress’s deep concern with protecting neutrals from entanglement in labor disputes and the inherent coercion presented by such an unqualified notice.  Dissenting, Member McFerran would have overruled the Board’s unqualified-threat rule and dismissed the present complaint.  She disagrees that an unqualified notice is inherently coercive and, instead, would examine all of the relevant circumstances to determine if a notice is coercive.

Charge filed by Desert Sun Enterprises Limited d/b/a Convention Technical Services.  Administrative Law Judge Gerald A. Wacknov issued his decision on July 28, 2014.  Chairman Ring and Members McFerran and Kaplan participated.

For more information, go to: 
http://www.beverlyhillsemploymentlaw.com/

Cobalt Coal Corp. Mining, Inc.

The Board granted the General Counsel’s Motion to Vacate and, upon de novo consideration, to reissue the Board’s May 24, 2013 Decision and Order granting the General Counsel’s Motion for Default Judgment in this proceeding (359 NLRB No. 123).  The Board issued the original decision at a time when the Board included two persons whose appointments to the Board were subsequently determined to be constitutionally infirm.  NLRB v. Noel Canning, 134 S. Ct. 2550 (2014).  After considering the Motion for Default Judgment de novo, the Board granted the General Counsel’s motion and found that the Respondent violated Section 8(a)(3) and (1).

Charges filed by United Mine Workers of America, AFL-CIO.  Chairman Ring and Members Kaplan and Emanuel participated.

For more information, go to: 
http://www.beverlyhillsemploymentlaw.com/

Leggett & Platt, Inc.

The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(5) and (1) by withdrawing recognition from the Union without objective evidence that the Union had lost majority support of unit employees under Levitz Furniture Co. of the Pacific, 333 NLRB 717 (2001).  The Board further found that the Respondent violated Section 8(a)(5) and (1) by making several unilateral changes to employees’ terms and conditions of employment after it unlawfully withdrew recognition from the Union.  Finally, the Board affirmed the judge’s conclusion that the Respondent violated Section 8(a)(1) when a supervisor unlawfully provided aid to the decertification petition filed after the withdrawal of recognition.  

Charges filed by International Association of Machinists and Aerospace Workers (IAM), AFL-CIO.  Administrative Law Judge Andrew S. Gollin issued his decision on October 2, 2017.  Chairman Ring and Members McFerran and Kaplan participated.

For more information, go to:
http://www.beverlyhillsemploymentlaw.com/

Johnston Fire Services, LLC

The Board adopted the Administrative Law Judge’s conclusion that the Respondent did not unlawfully discharge two employees for engaging in union activity.  The Board found that the Respondent made the decision to terminate both employees for attendance issues before learning of their protected activity.  After their discharges, the employees cast challenged ballots in a union election.  The tally of ballots showed 2 votes for the Union, 2 votes against, and 2 challenged ballots.  Because the discharges were lawful, the Board sustained the challenges and ordered that the votes not be counted.  Accordingly, the Board certified that a majority of the valid ballots had not been cast for the Petitioner.

Charges and Petition filed by Road Sprinkler Fitters, Local Union 669.  Administrative Law Judge Keltner W. Locke issued his decision on March 3, 2017.  Members McFerran, Kaplan, and Emanuel participated.

For more information, go to: 

Furry v. East Bay Publishing

Terry Furry sued his former employers East Bay Express and East Bay Publishing LLC (collectively East Bay) for, among other things, unpaid overtime wages, meal and rest break compensation, and statutory penalties for inaccurate wage statements.  Although the trial court found that East Bay failed to keep accurate records of Furry’s work hours, it concluded that Furry was not entitled to any relief because his testimony was too uncertain to support a just and reasonable inference that he performed work for which he was not paid.  The trial court also found that Furry was provided with uninterrupted meal and rest breaks as required by law.

For the reasons set forth below, we hold that it was error to completely deny Furry relief on his overtime claim, because imprecise evidence by an employee can provide a sufficient basis for damages when the employer fails to keep accurate records of the employee’s work hours.  (Hernandez v. Mendoza (1988) 199 Cal.App.3d 721, 727 (Hernandez).)  We agree, however, that Furry is not entitled to premium or regular pay for missed meal breaks because he failed to demonstrate that East Bay knew or reasonably should have known he was working through authorized meal breaks.  Accordingly, we reverse the judgment in part and remand for further proceedings consistent with this opinion.

For  more information, go to:

Nisei Farmers League v. CA Labor & Workforce Dev. Agency

Plaintiffs Nisei Farmers League and California Building Industry Association filed this action in the trial court challenging the constitutional validity of Labor Code section 226.2, a recently enacted law articulating wage requirements applicable where an employer uses a piece-rate method of compensating its employees.  The complaint was brought against the state labor agencies and agency officials responsible for enforcing the wage law (defendants).  In their complaint, plaintiffs alleged among other things that provisions of section 226.2 were so uncertain as to render the statute void for vagueness.  Other constitutional challenges to the validity of section 226.2 were premised on allegations that the statute would be applied retroactively.  Defendants demurred to the complaint, arguing that the wording of section 226.2 was not unconstitutionally vague and that the other constitutional challenges asserted in plaintiffs’ complaint were without merit because the statute was not retroactive.  The trial court agreed with defendants’ analysis, sustained the demurrer without leave to amend, and entered a judgment of dismissal.  In doing so, the trial court also declined to grant plaintiffs’ request for declaratory relief relating to an affirmative defense created by the statute.  Plaintiffs appeal from the judgment.

Based on our review of the pertinent issues, we conclude that plaintiffs failed to allege an adequate basis for finding the statute to be facially unconstitutional.  We also conclude that denial of the declaratory relief requested was appropriate.  Thus, the demurrer was properly sustained without leave to amend.  For these and other reasons more fully explained below, the judgment of the trial court is hereby affirmed.

For more information, go to: 

Thursday, January 3, 2019

Stratton v. Beck

This case began as a dispute over approximately $300 in unpaid wages.  It has since transmogrified into a dispute concerning attorney fees totaling nearly 200 times that amount and is here now for the second time.  In the previous appeal, appellant Thomas Beck challenged the trial court’s award of attorney fees for work that respondent Anthony Stratton’s attorney performed in that forum.  We affirmed the trial court’s ruling, holding that Stratton’s motion for $31,365 in statutory attorney fees was timely and supported by substantial evidence. At the conclusion of our opinion, we stated, “In the interest of justice, the parties are to bear their own costs of appeal.” (Stratton v. Beck (2017) 9 Cal.App.5th 483, 487, 498 (Stratton)). We reiterated that allocation in the ensuing remittitur:  “The parties are to bear their own costs of appeal.”

The parties interpreted this directive differently.  Beck maintained that “costs” included attorney fees on appeal, precluding Stratton from seeking them under Labor Code section 98.2, subdivision (c).  Stratton disagreed and filed a motion in the trial court seeking $114,840 in appellate attorney fees—a lodestar of $57,420, doubled in light of the complexity of the underlying issues.  The trial court awarded Stratton the lodestar and denied Beck’s motion to reconsider or clarify the ruling. It also awarded Stratton an additional $9,020 in fees he incurred opposing the motion to reconsider.

Beck appealed.  He contends that our order on costs deprived the trial court of jurisdiction to entertain Stratton’s motion for appellate attorney fees.  He further argues that the trial court erred in denying his motion to reconsider or clarify, in which he requested a more thorough explanation for the appellate attorney fee award.  We disagree and affirm.

For more information, go to:

Wednesday, January 2, 2019

Rymel v. Save Mart Supermarkets

Plaintiffs Jose Robles, Christopher Rymel, and David Hagins sued defendant Save Mart Supermarkets, Inc., alleging various state law statutory employment claims.  After successfully moving to sever, Save Mart moved to compel arbitration as to each plaintiff.  The motions were heard together, and the trial court denied the motions by substantively identical orders.  Save Mart timely appealed in each case.  The appeals lie.  (See Code Civ. Proc., § 1294, subd. (a).)  We consolidated the appeals for oral argument and decision and shall affirm the orders denying the motions to compel arbitration.

For more information, go to: