Weil v. Citizens Telecom Servs. Co.

The panel affirmed in part and reversed in part the district court’s summary judgment in favor of defendant employers in an employment discrimination action under Title VII, 42 U.S.C. § 1981, and the Washington Law Against Discrimination.

Reversing the district court’s summary judgment on a failure-to-promote claim, the panel held that the district court erred in excluding on hearsay grounds a statement proffered by the plaintiff. The panel held that, under Federal Rule of Evidence 801(d)(2)(D), hearsay does not include statements offered against a party, made by that party’s employee on a matter within the scope of that employee’s employment, so long as the statement was made while the employee was still employed by that employer. There is no requirement that the declarant still be in the same position that resulted in the matter being within the scope of the employment relationship. The panel held that, properly considering the statement as admissible evidence of pretext, the plaintiff met his burden on summary judgment.

Affirming the district court’s summary judgment on plaintiff’s termination claim, the panel held that plaintiff failed to raise a genuine dispute of material fact as to that claim because he did not present evidence that he was performing satisfactorily or that defendants treated a similarly situated employee who was not a member of plaintiff’s protected class differently.

Dissenting in part, Judge Bybee wrote that the district court properly excluded the proffered statement because it was not within the scope of the declarant’s employment when she made it after having been relieved of her hiring and promoting duties. Judge Bybee concurred in the majority opinion insofar as it affirmed summary judgment on the termination claim.

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Melendez v. San Francisco Baseball Associates LLC

Although a collective bargaining agreement between a stadium owner and a group of security guards may be relevant to a dispute over whether the stadium failed to pay unpaid wages upon discharging the guards, the dispute turns on the interpretation of the word "discharge" under the Labor Code rather than the agreement itself. Federal employment law therefore did not require arbitration of the dispute.

Melendez v. San Francisco Baseball Associates LLC - filed April 25, 2019 

Cite as 2019 S.O.S. 1953 

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Acosta v. City National Corporation

An ERISA plan sponsor and administrator engaged in prohibited self-dealing by setting and approving its own fees from plan assets for serving as its own recordkeeper. The "reasonable compensation" exemption does not apply to prohibited self-dealing, including where a self-dealing fiduciary seeks the exemption for actual and legitimate services rendered. Where a fiduciary has engaged in self-dealing, the entire cost is the total amount of the illegal compensation that the fiduciary paid itself.

Acosta v. City National Corporation - filed April 23, 2019 

Cite as 2019 S.O.S. 17-55421

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Parker Drilling Management Services, Ltd. v. Newton

Whether, under the Outer Continental Shelf Lands Act, state law is borrowed as the applicable federal law only when there is a gap in the coverage of federal law, as the U.S. Court of Appeals for the 5th Circuit has held, or whenever state [California wage and hour] law pertains to the subject matter of a lawsuit and is not pre-empted by inconsistent federal law, as the U.S. Court of Appeals for the 9th Circuit has held.

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Grimm v. Vortex Marine Construction

The panel affirmed the district court’s dismissal of an action seeking enforcement of a Department of Labor order requiring payment of a worker’s future medical expenses under the Longshore and Harbor Workers’ Compensation Act.

A Department of Labor administrative law judge ordered the worker’s employer to pay for medical expenses arising from his work-related injuries and to provide treatment going forward. The worker alleged that the employer refused to pay for required medical treatment and he was therefore forced to rely on Medicare to pay his expenses. He sought enforcement of the ALJ’s order and also asserted a claim under the Medicare Secondary Payer Act, seeking double damages for the amounts Medicare paid for the services.

The panel held that the district court lacked subject matter jurisdiction to enforce the ALJ’s order because the order was not final, as required by 33 U.S.C. § 921(d). Joining other circuits, the panel held that to be “final” for purposes of § 921(d), an order must at a minimum specify the amount of compensation due or provide a means of calculating the correct amount without resort to extra-record facts.

The panel affirmed the district court’s conclusion that the worker’s claim under the Medicare Secondary Payer Act was premature.

Concurring, Judge Watford agreed that the district court lacked jurisdiction to hear the Longshore Act claim. He wrote that 33 U.S.C. § 921(d) limits the jurisdiction of the district court to enforcing “compensation orders,” and the portion of the ALJ’s order directing the employer to pay future medical expenses was not a compensation order within the meaning of the Longshore Act.

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Castro v. Tri Marine Fish Company LLC

Central to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, June 10, 1958, 21 U.S.T. 2517 (“New York Convention”), and related federal law is the principle insulating foreign arbitral awards from second-guessing by courts. But this appeal involves an even more fundamental question— whether we are presented with a foreign arbitral award at all. In the mine run of cases, the answer is uncontroversial: when it looks, swims, and quacks like an arbitral award, it typically is. Yet, in this unusual appeal, we have an arbitral award in name only. There was no dispute to arbitrate, as the parties had fully settled their claims before approaching an arbitrator; the purported arbitration consisted of an impromptu meeting in a building lobby; and the “proceedings” disregarded the terms of three arbitration agreements between the parties and the issuing forum’s arbitral rules. We conclude that the resulting order is not an arbitral award entitled to enforcement under the Convention.

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Subcontracting Concepts (CT), LLC v. Chafie Gabriel Pereira Moreira De Melo (Department of Industrial Relations)

In a case where there was plainly a power imbalance between the parties, and a worker was required to sign an agreement containing a mandatory arbitration provision, and there is a dispute over whether the worker was an employee or an independent contractor, it is both unnecessary and inappropriate to resolve the question of whether the worker was an employee for purposes of an unconscionability determination. An arbitration clause was procedurally unconscionable where it was imposed on a worker as a condition of employment, with no opportunity to negotiate, when the worker was not fluent in English, and the agreement did not clearly state what rules would govern arbitration. An agreement was substantively unconscionable where it required a worker to bear his own costs for arbitration, barred him recovering attorney fees or costs, barred him from seeking statutory remedies, barred him from bringing a Private Attorney General Act claim, and barred him from seeing a Berman hearing.

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Savea v. YRC Inc.

An employer did not violate Labor Code Sec. 226(a)(8) by providing its fictitious business name as the employer name on its wage statements or by providing an employer address that did not contain a mail stop code or ZIP+4 Code.

Savea v. YRC Inc. - filed April 10, 2019, First District, Div. Three 

Cite as 2019 S.O.S. 1760 

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Diaz v. Sohnen Enterprises

When a worker continues her employment after notification that an agreement to arbitration is a condition of continued employment, that employee has impliedly consented to the arbitration agreement. An employer can unilaterally change the terms of an at-will worker's employment agreement as long as it provides notice of the change, and the alteration does not violate a statute or breach an implied or expressed contractual agreement. An adhesive agreement to arbitrate can still be enforced in the absence of surprise or sharp practices demonstrating substantive unconscionability.

Diaz v. Sohnen Enterprises - filed April 10, 2019, Second District, Div. Seven 

Cite as 2019 S.O.S. 1722 

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Martinez v. Public Employees' Retirement System

The law remains that a terminated for-cause employee can still qualify for disability retirement when the conduct which prompted the termination was the result of the employee's disability or if she had a "matured right" to a disability retirement prior to the conduct which prompted the termination. The Board of Administration of the California Public Employees Retirement System reasonably extended this precedent to establish a rule that when an employee settles a pending termination for cause and agrees not to seek reemployment, this is "tantamount to a dismissal", thus precluding a disability retirement.

Martinez v. Public Employees' Retirement System - filed April 4, 2019, First District, Div. Two 

Cite as 2019 S.O.S. 1659 

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Ryze Claim Solutions LLC v. Superior Court

Petitioner and defendant Ryze Claim Solutions LLC (Ryze) seeks writ relief from an order of the trial court denying its motion to dismiss or stay the lawsuit filed by its former employee Real Party in Interest and plaintiff Jerome Nedd on improper forum grounds.  We shall issue the writ.

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Bravo v. RADC Enterprises, Inc.

This employment case concerns a choice-of-law clause in an arbitration agreement.  The trial court interpreted the clause to mean some but not all individual employment claims must be arbitrated.  We conclude all of them must be arbitrated.

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Walnut Creek Police Officers' Assn. v. City of Walnut Creek

The petitions for writ of supersedeas filed in these consolidated matters are denied. Appellants have not shown that “substantial questions will be raised on appeal.” (Smith v. Selma Community Hospital (2010) 188 Cal.App.4th 1, 18.) The appeals center around amendments enacted this year to Penal Code section 832.7 that expand public access to certain peace officer records maintained by a state or local agency. (See Pen. Code, § 832.7, subd. (b)(1).) Appellants assert that applying the 2019 amendments to compel disclosure of records created prior to 2019 constitutes an improper retroactive application of the new law. For the reasons stated by the trial court, appellants’ argument is without merit. Although the records may have been created prior to 2019, the event necessary to “trigger application” of the new law—a request for records maintained by an agency—necessarily occurs after the law’s effective date. (People v. Grant (1999) 20 Cal.4th 150, 157 [“the critical question for determining retroactivity usually is whether the last act or event necessary to trigger application of the statute occurred before or after the statute's effective date”].) The new law also does not change the legal consequences for peace officer conduct described in pre-2019 records. (See ibid. [application of new law is retroactive “only if it attaches new legal consequences to, or increases a party’s liability for, an event, transaction, or conduct that was completed before the law’s effective date”].) Rather, the new law changes only the public's right to access peace officer records.

The temporary stay issued by this court on February 15, 2019, will expire at 5:00 p.m. on March 19, 2019.

Interveners’ motion for calendar preference and expedited briefing is denied.

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