Knutsson v. KTLA, LLC

Employer, by moving to compel arbitration under a union contract, waived its right to enforce provisions of the contract requiring employee to exhaust pre-arbitration remedies. Arbitration agreement between employer and union could not be invoked to prevent individual plaintiff from pursuing litigation regarding alleged breach of his individual contract with employer and violation of statutory rights. Trial court correctly ruled on arbitrability, rather than referring the issue to arbitration, in the absence of an agreement unambiguously requiring that the issue be decided by an arbitrator.
     Knutsson v. KTLA, LLC - filed August 12, 2014, Second District, Div. Five
     Cite as 2014 S.O.S. 3369

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Rebolledo v. Tilly’s Inc

In a putative class action regarding statutory wage claims, the court did not err in a denying motion to compel arbitration where the parties’ arbitration agreement expressly excluded statutory wage claims.
     Rebolledo v. Tilly’s Inc. - filed July 8, 2014, publication ordered Aug. 6, 2014, Fourth District, Div. Three
     Cite as 2014 S.O.S. 3296

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Lefiell Manufacturing Company v. Superior Court of Los Angeles County

A door on a machine is not a "point of operation guard" for purpose of a statute providing an exception to the worker’s compensation exclusivity rule--where an employer has failed to install or has removed such a guard from a power press.
     Lefiell Manufacturing Company v. Superior Court of Los Angeles County - filed Aug. 6, 2014, Second District, Div. Three
     Cite as 2014 S.O.S. 3290

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DeYoung v. Commission on Professional Competence of the Hueneme Elementary Schoool District

Where school district administration orally presented charges against teacher to school board in a confidential proceeding, prior to written charges being prepared and provided to teacher--contrary to the Education Code’s requirement that the board, prior to initiating dismissal, consider either verified written charges prepared by the district or written charges formulated by the board itself--this was a procedural error that was neither substantive nor prejudicial and did not render teacher’s dismissal unlawful.
     DeYoung v. Commission on Professional Competence of the Hueneme Elementary Schoool District (Hueneme Elementary School District) - filed July 30, 2014, Second District, Div. Six
     Cite as 2014 S.O.S. 3082

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Galen v. Redfin Corporation

Arbitration clause covering disputes "arising out of or related to" the parties’ agreement extended to issue of whether plaintiff was misclassified as an independent contractor, even to the extent that the issue implicated plaintiff’s Labor Code claims. Mutual attorney fee provision did not "shock the conscience" and result in unconscionability. Neither inconvenience nor the additional expense of litigating in the selected forum will support the invalidation of a forum-selection clause. California public policy favors enforcement of such clauses and places the burden on the objecting party to establish that the clause is unreasonable.
     Galen v. Redfin Corporation - filed July 21, 2014, First District, Div. One
     Cite as 2014 S.O.S. 3708

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Rodriguez v. City of Santa Clara

In an independent review of application for disability benefits due to posttraumatic stress disorder, a trial court’s standard of review is not whether the findings are supported by "substantial evidence"; rather, where a matter involves a "fundamental vested right," a reviewing court must independently weigh the evidence and give no deference to the initial factfinder.

     Rodriguez v. City of Santa Clara - filed July 17, 2014, Sixth District

     Cite as 2014 S.O.S. 3668

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Peabody v. Time Warner Cable, Inc.

An employer may not attribute commission wages paid in one pay period to other pay periods in order to satisfy California’s compensation requirements.
     Peabody v. Time Warner Cable, Inc. - filed July 14, 2014
     Cite as 2014 S.O.S.3598

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Avila v. Los Angeles Police Department

Police officer’s claim that the Los Angeles Police Department fired him in retaliation for testifying in a Fair Labor Standards Act lawsuit brought by a fellow officer was not precluded by the LAPD Board of Rights’ recommendation that he be terminated for insubordination in not claiming overtime. District court did not err in declining to give two special jury instructions, and special verdict questions tied to those instructions, stating that an employee who engages in protected activity is not insulated from adverse action for violating workplace rules.

To the extent the city was urging that it would have reached the same decision on terminating the officer in the absence of his testimony in the prior lawsuit, the district court was well within its discretion in refusing to give the instructions because the evidence did not support the same decision defense, nor did it support the city’s argument that the firing was based on the content of the officer’s testimony, and not on the mere fact that he had testified.

District court did not abuse its discretion in awarding attorney’s fees of nearly $600,000, where the court reduced counsel’s requested rate; eliminated administrative, clerical, and unproductive hours; deducted 30 percent of time with vague billing descriptions; and reduced the overall amount by 10 percent to account for time "expended on the failed claims." Court did not abuse its discretion in awarding liquidated damages to compensate plaintiff "for a delay in payment of wages owed" as well as to "provide an incentive for future employees to report wage and hour violations by their employers."

     Avila v. Los Angeles Police Department - filed July 10, 2014

     Cite as 2014 S.O.S. 12-55931

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Lawsuit alleges Wynn Elementary staff bullied girl, 10, for being black

Las Vegas Sun

By Ana Ley (contact) 

Wednesday, July 9, 2014 | 2 a.m.

Wynn Elementary administrators bullied and berated a 10-year-old student out of prejudice for being black, a lawsuit filed in federal court alleges.

The suit, filed July 3 by the girl's mother, Sheena Hathorn, accuses the Clark County School District, Wynn principal Ellen Bordinhao and Superintendent Pat Skorkowsky of civil rights violations, discrimination, and negligent hiring and training of employees. Hathorn seeks a jury trial and at least $50,000 in damages or "an amount adequate to punish the wrongdoers and deter future misconduct."

School district officials declined to comment, citing pending litigation.

The child, who has turned 11 since the alleged abuse began to take place, was first targeted during a school field trip Oct. 31, 2012, when another child accused her of rough play, according to the suit. A woman identified only as Megan — one of four chaperones watching over 60 children on the trip — reportedly asked the other child who pushed her, and the girl pointed in a general direction to the top of a slide where several youngsters had gathered.

Megan allegedly began to scream at Hathorn's daughter, causing her to cry, even though the girl denied pushing another child and there was no way of knowing who had done it, said Hathorn, who was on the playground at the time of the incident.

Hathorn works part time for the Clark County School District as a program assistant, records show.

Days after the incident, Hathorn said she tried reaching out to school district officials to learn more about Megan, but the staff did not know the woman's last name and identified her only as a family friend of a teacher.

Hathorn filed a bullying report and Clark County officials subsequently interviewed her daughter alone during a so-called counseling session, according to the suit.

"Shockingly, when Sheena requested information regarding the unauthorized counseling session, (officials) refused to inform Sheena regarding the session as if (the child) requested the counseling session of her own volition," the suit says. "Most importantly, upon information and belief, that the school refuses to reveal the contents of the session because during that session (the child) made clear she believed she was being yelled (at) and berated because she is African-American, one of the few African-American(s) enrolled at Wynn."

Attorneys Patrick Kang and Erica Loyd, who filed the suit on behalf of Hathorn, called the district's conduct malicious and predatory.

Hathorn's complaint comes less than three months after a pair of families sued the district for allegedly failing to protect their children from chronic taunting by other students. One of the families said their son considered taking his own life because of the bullying.

The district has faced harsh criticism from Clark County parents and the American Civil Liberties Union,which filed the April 29 complaint on behalf of the two families, since a 13-year-old student at White Middle School committed suicide in December and left a farewell note tying her death to bullying.

The earlier lawsuit calls for changes in district policy, unspecified damages and a jury trial.

School District officials have since formed a task force to address bullying issues. The task force reviews district policies and state laws regarding bullying. It recommends policy and legislative changes.

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Dilts v. Penske Logistics, LLC

California’s meal and rest break laws, as applied to motor carriers, were not "related to" defendants’ prices, routes, or services, and therefore they were not preempted by the Federal Aviation Administration Authorization Act of 1994.

     Dilts v. Penske Logistics, LLC - filed July 9, 2014

     Cite as 2014 S.O.S. 12-55705

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Man gets $100,000 in OSHA whistleblower lawsuit

Posted: Monday, July 7, 2014 1:37 pm

Associated Press | 

PITTSBURGH (AP) — A Pittsburgh-area company that operates an industrial park and intermodal terminal has agreed to pay $100,000 to settle a whistleblower suit filed by the federal Occupational Safety and Health Administration. OSHA sued last year on behalf of former employee Andrew Dorsey. Dorsey claimed he was suspended for allegedly damaging a skid loader while plowing snow, so he complained to OSHA about workplace safety at McKees Rocks Industrial Enterprises. That prompted an OSHA inspection and Dorsey was fired a week later. OSHA then sued the company and its president, James Lind. An attorney for Lind and the industrial company did not immediately return a call seeking comment after the settlement was filed in federal court on Monday. The company must also remove disciplinary actions from Dorsey's file and give him a neutral reference for future jobs.

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Paratransit, Inc. v. Unemployment Insurance Appeals Board (Medeiros)

Employee who refused his employer's repeated orders to sign a written disciplinary notice because he disputed the notice's factual allegations and thought he was entitled to consult with his union representative first was lawfully terminated for insubordination, but the refusal to sign was not misconduct within the meaning of Labor Code Sec. 1256 but was, at most, a good faith error in judgment that did not disqualify him from unemployment benefits.

     Paratransit, Inc. v. Unemployment Insurance Appeals Board (Medeiros) - filed July 3, 2014

     Cite as 2014 S.O.S. 3399

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Salas v. Sierra Chemical Co

Senate Bill No. 1818, which extends state law employee protections and remedies to all workers "regardless of immigration status," is not preempted by federal immigration law except to the extent it authorizes an award of lost pay damages for any period after the employer’s discovery of an employee’s ineligibility to work in the United States. Doctrines of after-acquired evidence and unclean hands are not complete defenses to a worker’s claims under California’s Fair Employment and Housing Act, although they do affect the availability of remedies. FEHA generally will not permit a plaintiff to recover damages incurred after the employer learned of facts that would have resulted in lawful termination, and a trial court may consider unclean hands in fashioning an equitable remedy.
     Salas v. Sierra Chemical Co. - filed June 26, 2014
     Cite as 2014 S.O.S. 3235
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Fifth Third Bancorp v. Dudenhoeffer

Employee Stock Ownership Plan fiduciaries are not entitled to any special presumption of prudence with respect to investment decisions. They are subject to the same duty of prudence that applies to ERISA fiduciaries in general under 29 U.S.C. Sec. 1104(a)(1)(B), except that they need not diversify the fund’s assets as provided by Sec. 1104(a)(2). Whether a complaint--alleging that ESOP fiduciaries breached their duties of prudence--states a claim must be determined by applying the "plausibility" standard of pleading discussed in Ashcroft v. Iqbal, 556 U. S. 662. Where a stock is publicly traded, allegations that a fiduciary should have recognized on the basis of publicly available information that the market was overvaluing or undervaluing the stock are generally implausible and thus insufficient to state a claim. A complaint for breach of the duty of prudence must plausibly allege an alternative action that the defendant could have taken, that would have been legal, and that a prudent fiduciary in the same circumstances would not have viewed as more likely to harm the fund than to help it.
     Fifth Third Bancorp v. Dudenhoeffer - filed June 25, 2014
     Cite as 2014 S.O.S. 12-751_d18e

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Iskanian v. CLS Transportation Los Angeles, LLC

State’s refusal to enforce employee’s waiver of the right to bring arbitration claims on behalf of a class, on grounds of unconscionability, is preempted by the Federal Arbitration Act. Holding to the contrary in Gentry v. Superior Court (2007) 42 Cal. 4th 443 has been abrogated by recent U.S. Supreme Court precedent. Class action waiver in employment agreement was not unlawful under the National Labor Relations Act, where the agreement did not ban all collective activity to vindicate wage claims, since employees were not barred from filing joint claims or from seeking the assistance of a lawyer or union or of other workers, and arbitrator was not barred from consolidating claims of multiple employees or from awarding relief to a group of employees. Employer did not waive its right to arbitrate by withdrawing its motion to compel arbitration after Gentry, since it was not required to anticipate that Gentry would be abrogated. Arbitration agreement requiring an employee as a condition of employment to give up the right to bring representative action under the Labor Code Private Attorneys General Act of 2004 in any forum is contrary to public policy, and the FAA’s goal of promoting arbitration as a means of private dispute resolution does not preclude the state from deputizing employees to prosecute Labor Code violations on the state’s behalf, so FAA does not preempt state law that prohibits waiver of PAGA representative actions in an employment contract. PAGA does not violate the principle of separation of powers under the California Constitution.
     Iskanian v. CLS Transportation Los Angeles, LLC - filed June 23, 2014
     Cite as 2014 S.O.S. 3112

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Johnmohammadi v. Bloomingdales’s, Inc

Arbitration agreement, including provision that if employee did not opt out of the "benefits of Arbitration" within 30 days, she would be barred from pursuing employment-related claims on a collective basis in any forum, judicial or arbitral, was valid, and under the Federal Arbitration Act was required to be enforced according to its terms. Having freely elected to arbitrate employment-related disputes on an individual basis, without interference from employer, employee could not claim that enforcement of the arbitration agreement violated either the Norris-LaGuardia Act or the National Labor Relations Act.
     Johnmohammadi v. Bloomingdales’s, Inc. - filed June 23, 2014
     Cite as 2014 S.O.S. 12-55578

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Davis v. Nordstrom, Inc.

Where employer notified employee that it had revised its employee handbook and other policies to reflect U.S. Supreme Court ruling that Federal Arbitration Act preempts state law barring enforcement of arbitration agreement barring class-wide arbitration, employer and employee entered into a valid agreement to arbitrate disputes on an individual basis. Employer satisfied the minimal requirements under California law for providing employees with reasonable notice of a change to its employee handbook by sending a letter to the employees informing them of the modification, and not seeking to enforce the arbitration provision during the 30-day notice period. Employer was not bound to inform an employee that her continued employment after receiving the letter constituted acceptance of new terms of employment.
     Davis v. Nordstrom, Inc. - filed June 23, 2014
     Cite as 2014 S.O.S. 12-17403

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Alameda County: Caregivers file class-action lawsuit against leading nationwide health care services company

Oakland Tribune
By Malaika Fraley
Alameda County: Caregivers file class-action lawsuit against leading nationwide health care services company

OAKLAND -- A class-action lawsuit filed Wednesday against a leading nationwide health care services company alleges caregivers tending to the elderly, ill and disabled in the Bay Area and throughout the state are being denied overtime and breaks in violation of California labor laws.

The lawsuit against the Kentucky-based Kindred Healthcare and its subsidiaries -- Professional Healthcare at Home and NP Plus -- alleges that employee caregivers contracted out to assisted living and rehabilitation facilities to provide nonmedical care are working 12- to 24-hour shifts without receiving overtime or breaks for meals and rest. The workers deployed to private residences are receiving a flat-pay wage that breaks down to below minimum wage, the lawsuit alleges.

The lead plaintiffs, Emma Delores Hawkins, of San Pablo, and Ginger Rogers, of Sacramento, are both veteran caregivers who work 12-hour shifts five to seven days a week in private residences and facilities in Alameda County.

"You might get a chance to go to the bathroom, but getting fresh air or taking a break -- it's not happening. Not a lunch break, not a 15-minute break, nothing," Rogers said. "It's been going on for quite some time. Unfortunately, a lot of people have not been speaking up. I decided to speak up. I'm going for some change in the health care profession."

Susan Moss, senior vice president of marketing and communications at Kindred Healthcare, said Wednesday that the company is unable to comment at this time because it had not been served with the lawsuit and therefore have not had the opportunity to review the allegations.

The lawsuit is being brought by the Legal Aid Society-Employment Law Center, Women's Employment Rights Clinic of Golden Gate University School of Law and the Oakland-based law firm Lewis, Feinberg, Lee, Renaker & Jackson on behalf of caregivers who have worked for the defendants in the last four years.

Some 300 caregivers work for the plaintiffs in California in private homes and in facilities at any given time, the law firm says, but the lawsuit has implications for the estimated 3.5 million such caregivers in the United States.


"We hope the lawsuit will set an industry standard requiring compliance with laws that govern this kind of work," said Hina Shah, an attorney for the plaintiffs.


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Long-term female executive claims wrongful termination against Playboy Enterprises. $6 million. U.S. District Court.

Case Name: Catherine A. Zulfer v. Playboy Enterprises Inc., and Does 1 through 10, inclusive.
Corporate controller claims Playboy asked for accounting entry that violated Sarbanes-Oxley Act; when she refused they retaliated against her and later wrongfully terminated her employment.
Gross Verdict: $6,000,000 plus findings under Civil Code 3294(b). The jury found that Playboy had retaliated in violation of the Sarbanes Oxley Act. The matter was resolved after the verdict.

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Duran v. U.S. Bank National Association

Class action proceeded to trial on theory that plaintiff class members had been misclassified as managers and improperly denied overtime pay, trial court’s approach-—designating about eight percent of class members as a sample, limiting evidence of class members’ work habits to those relating to the sample, and extrapolating from that evidence to determine damages for entire class-—was prejudicially flawed because it prevented defendant from showing that some class members were exempt and entitled to no recovery. Trial plan that relies on statistical sampling must be developed with expert input, and must afford the defendant an opportunity to impeach the model or otherwise show its liability is reduced.
     Duran v. U.S. Bank National Association - filed May 29, 2014
     Cite as 2014 S.O.S. 2659

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Staniforth v. Judges’ Retirement System (Chiang)

In action by judicial pensioners alleging that their pensions had been underpaid because legislative changes in how those amounts are calculated had been applied to them in violation of Olson v. Cory (1980) 27 Cal.3d 532. Trial court was correct in ruling that Olson did not confer on or recognize any right of judicial pensioners to be exempted from changes in the underlying salary structure applicable to active jurists, including changes to COLAs adopted by legislative amendment. Trial court erred in sustaining retirement system’s demurrer, without leave to amend, with respect to claims by class members who were allegedly not paid the amounts due to them under the trial court’s interpretation of Olson. Petitioners should have been granted leave to separately state the claims of those class members, as those claimants’ averments had been incorporated in the petition by reference. Their claims were not facially barred by the 10-year statute of limitations on enforcement of judgments or extinguished by the statutory limitation on the length of the retirement system’s obligations to its members--all contrary to the rulings of the trial court.

Staniforth v. Judges’ Retirement System (Chiang) - filed May 19, 2014, publication ordered May 29, 2014, Fourth District, Div. One
     Cite as 2014 S.O.S. 2745

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Vasquez v. Franklin Management Real Estate Fund, Inc.

Employee’s allegation that defendant employer violated the Labor Code by assigning plaintiff tasks that required extensive use of his vehicle, but refused to reimburse him for mileage--and that plaintiff had to quit as a result did not, in and of itself, sufficiently plead a cause of action for constructive wrongful discharge. Trial court abused its discretion by denying plaintiff leave to amend his claim. An allegation that plaintiff’s work-related auto expenses were so high, in comparison with his wages, as to deprive him of the protection of the wage-and-hour laws would have cured the deficiency in the pleading. Defendant’s alleged conduct was not so outrageous as to constitute intentional infliction of emotional distress, and trial court was not required to grant plaintiff leave to amend that proposed cause of action.

     Vasquez v. Franklin Management Real Estate Fund, Inc. - filed December 3, 2013, publication ordered December 31, 2013, Second District, Div. Four

     Cite as 2014 S.O.S. B245735

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