​ Heimlich v. Shivji

Code of Civil Procedure section 998 creates an incentive for settlement.  It authorizes an award of costs to a party that makes a pretrial settlement offer when the opponent rejects the offer and obtains a lesser result at trial.  (Martinez v. Brownco Construction Co. (2013) 56 Cal.4th 1014, 1019.)  In 1997, the Legislature amended the statute to make the same incentive available in arbitrations.  (Stats. 1997, ch. 892, § 1, p. 6390; Pilimai v. Farmers Ins. Exchange Co. (2006) 39 Cal.4th 133, 139, 149.)  This case involves the procedures for seeking these costs in arbitration.

We hold a request for costs under section 998 is timely if filed with the arbitrator within 15 days of a final award.  In response to such a request, an arbitrator has authority to award costs to the offering party.  However, if an arbitrator refuses to award costs, judicial review is limited.  The Court of Appeal erred in relying on a narrow exception to those limits, for failure to consider evidence.  We reverse.

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Nunez v. Nevell Group, Inc.

Nevell Group, Inc. (Nevell) filed a motion to compel arbitration of the claims filed against it by former employee Xavier Nunez.  Nevell and the union to which Nunez belonged were parties to a collective bargaining agreement (CBA) that provided for arbitration of alleged violations of the relevant wage order.  The trial court denied the motion based on Nevell’s waiver of its right to compel arbitration, Nevell’s delay in filing its motion, and the prejudice Nunez would suffer if the motion were to be granted.  We affirm.

Nevell explicitly waived any right to compel arbitration by advising the trial court in writing that it would not file a motion to compel.  Nevell also impliedly waived arbitration by permitting two court-ordered deadlines, by which it was to have filed a motion to compel, to pass, and by engaging in significant discovery and other litigation activities inconsistent with the right to arbitration.  Nevell argues that he could not have filed a motion to compel arbitration before the Court of Appeal issued its opinion in Cortez v. Doty Bros. Equipment Co. (2017) 15 Cal.App.5th (Cortez).  We reject that argument because Cortez does not reflect a change in the law.

Nunez would suffer prejudice if Nevell’s motion to compel arbitration were granted at this point because Nevell’s delay in seeking to compel arbitration unnecessarily extended the time the case was pending and caused Nunez to expend resources on litigation activities inconsistent with arbitration, such as class-based discovery, the preparation of a demand package based on a class action, and preparing and serving notice to the putative class members.  Nevell delayed the filing of its motion to compel arbitration for more than three years after the complaint was filed, and more than eight months after the Cortez case was filed.

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DiRaffael v. Cal. Army Nat. Guard

Plaintiff and appellant Robert DiRaffael, appearing in propria persona, appeals from the denial of his petition for a writ of mandate directing the California Army National Guard (CAARNG) to vacate an order separating appellant, a commissioned officer, from CAARNG.  Defendants and respondents are CAARNG and four individuals named in appellant’s petition:  David S. Baldwin, California’s Adjutant General; Lawrence A. Haskins, commander of CAARNG; and John D. Ford and Dwight D. Stirling, two officers in CAARNG who purportedly reviewed and supervised the issuance of the separation order.

CAARNG ordered appellant separated pursuant to federal regulations governing selective retention of National Guard officers after 20 years of service.  Appellant argued in his writ petition that the United States Constitution reserved to the states the right to appoint and terminate the appointments of state National Guard officers, and therefore CAARNG could not rely on federal regulations to separate him.  The trial court found that state law incorporated the applicable federal regulations via provisions of the Military and Veterans Code, and thus CAARNG properly could invoke them to separate appellant.

Appellant argues that the trial court erred because (1) the United States Constitution prohibits the Legislature from incorporating the federal regulatory provisions under which CAARNG separated appellant and (2) even if the Legislature could incorporate those provisions, it has not done so.  We reject both propositions.  We further hold that appellant’s claims of purported procedural and evidentiary errors by the trial court lack merit.  Accordingly, we affirm the judgment.

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Perez v. City of Roseville

The panel filed (1) an order withdrawing the opinion and concurring opinion filed on February 9, 2018, and ruling that a sua sponte en banc call and a motion for attorneys’ fees were moot; and (2) a new opinion and dissenting opinion.

In the new opinion, the panel affirmed the district court’s summary judgment in favor of the defendants on a former City of Roseville probationary police officer’s claims under 42 U.S.C. § 1983 for (1) violation of her rights to privacy and intimate association under the First, Fourth, and Fourteenth Amendments; and (2) deprivation of liberty Amendment.

The panel held that the individual defendants were entitled to qualified immunity on the first claim because it was not clearly established that a probationary officer’s constitutional rights to privacy and intimate association are violated if a police department terminates her due to participation in an ongoing extramarital relationship with a married officer with whom she worked, where an internal affairs investigation found that the probationary officer engaged in inappropriate personal cell phone use in connection with the relationship while on duty, resulting in a written reprimand for violating department policy.

It also was not clearly established that there was a legally sufficient temporal nexus between the individual defendants’ allegedly stigmatizing statements and the probationary officer’s termination. The individual defendants were therefore also entitled to qualified immunity on the probationary officer’s claim that the lack of a name-clearing hearing violated her due process rights.

The plaintiff also appealed the district court’s summary judgment on her claims against the City of Roseville, and the Roseville Police Department for sex discrimination in violation of Title VII and the California Fair Employment and Housing Act, but she conceded that the alleged discrimination was not actually based on her gender. Accordingly, the panel affirmed the district court. The majority rejected the dissent’s argument that it was improper to substitute a different judge following the post publication death of the original decision’s author and to change a previously published opinion except as part of an en banc decision.

The majority wrote that Carver v. Lehman, 558 F.3d 869 (9th Cir. 2009), is directly applicable here. The majority explained that because the opinion issued by the prior majority was only part way through its finalization process, a replacement judge was drawn, en banc proceedings were suspended, and the new panel had the authority to reconsider and withdraw the opinion filed by the prior panel and to substitute a different opinion.

Dissenting, District Judge Molloy wrote that the majority in the prior published opinion, Perez v City of Roseville, 882 F.3d 843 (9th Cir. 2018), correctly resolved the issues, and the majority opinion of a quorum of judges should stand for the reasons stated therein. District Judge Molloy wrote that the substitution of a judge who legitimately disagrees with the original opinion should not change the outcome except as part of an en banc court decision.

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NLRB Rulemaking Agenda Announced

Washington, DC —The rulemaking priorities of the National Labor Relations Board (NLRB) were released today by the OMB’s Office of Information and Regulatory Affairs. The release, based on a submission prepared at the direction of the Chairman, is included in the Unified Agenda of Federal Regulatory and Deregulatory Actions (Long Term Actions/Short Term Actions), which issues twice yearly.

The Unified Agenda discloses that the Board—in addition to proceeding with its rulemaking regarding the joint-employer standard—will consider rulemaking in the following areas:

The Board’s current representation-case procedures.

The Board’s current standards for blocking charges, voluntary recognition, and the formation of Section 9(a) bargaining relationships in the construction industry.

The standard for determining whether students who perform services at private colleges or universities in connection with their studies are “employees” within the meaning of Section 2(3) of the National Labor Relations Act (29 U.S.C. Sec. 153(3)).

Standards for access to an employer’s private property.

“The Agenda reflects the Board majority’s strong interest in continued rulemaking.” said Chairman John F. Ring. “Addressing these important topics through rulemaking allows the Board to consider and issue guidance in a clear and more comprehensive manner.”

The NLRB issued its Notice of Proposed Rulemaking (NPRM) regarding the standard for determining joint-employer on September 14, 2018. The period for public comment closed February 11, 2019, after the Board had received nearly 29,000 comments. “The Board is pleased with the number of comments we received in response to our proposed joint-employer rulemaking and looks forward to considering each one,” Chairman Ring stated. “The number of comments reflects the public’s strong interest in the Board providing greater clarity in this important area of the law.”

Established in 1935, the National Labor Relations Board is an independent federal agency that protects employers and employees from unfair labor practices and protects the right of private sector employees to join together, with or without a union, to improve wages, benefits and working conditions. The NLRB conducts hundreds of workplace elections and investigates thousands of unfair labor practice charges each year.

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Lambert v. Tesla

Affirming the district court’s order compelling arbitration, the panel held that racial discrimination claims under 42 U.S.C. § 1981 may be subjected to compulsory arbitration.

Following the reasoning of EEOC v. Luce, Forward, Hamilton & Scripps, 345 F.3d 742 (9th Cir. 2003) (en banc), addressing the arbitrability of Title VII claims, the panel held that § 1981 claims are arbitrable. Applying the Gilmer test, Luce, Forward concluded that § 118 of the Civil Rights Act of 1991, amending both Title VII and § 1981, does not bar arbitration.

Concurring, Chief Judge Thomas agreed that Luce, Forward was dispositive but wrote separately because he believes that Luce, Forward was wrongly decided. Chief Judge Thomas wrote that the statutory text of § 118, stating that arbitration should be encouraged to the extent it is appropriate and authorized by law, is ambiguous. Considering the legislative history, compelling arbitration in § 1981 actions defies Congress’s intent.

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Barber v, State Personnel Board (Department of Corrections and Rehabilitation)

Government Code Sec. 19584 does not allow an employee to recover damages for his increased tax liability for having received a lump sum back pay award.

Barber v, State Personnel Board (Department of Corrections and Rehabilitation) - filed May 17, 2019, Fourth District, Div. Two 

Cite as 2019 S.O.S. 2393 

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County L.A. Dept. Pub. Social Svcs. v. Civil Svc. Com. L.A. County

In this case we must determine whether the Los Angeles County Civil Service Commission (Commission) has jurisdiction to rule on matters not delegated to it by the Charter of the County of Los Angeles (Charter).  We conclude the Commission’s special and limited jurisdiction does not extend to such matters.

Appellant Linda Hoa worked for the County of Los Angeles (County) for almost 30 years.  As a County employee, Hoa was subject to the County’s Civil Service Rules. In this appeal, Hoa challenges the trial court’s judgment reversing the Commission’s order entitling her to a medical reevaluation under Rule 9.07B.  In pertinent part, Rule 9.07B provides:  “An employee may request, or an appointing authority may, with the consent of the director of personnel, require an employee to have a medical reevaluation.”

The respondents on appeal are the County Department of Public Social Services (Department) and the County Chief Executive Office.  Although respondents argue the trial court correctly construed Rule 9.07B, they contend the trial court erred in finding the Commission had jurisdiction to issue its ruling in Hoa’s favor.

As explained below, although we disagree with the trial court’s ruling on jurisdiction, we agree with the trial court’s interpretation of Rule 9.07B.

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Le Mere v. Los Angeles Unified School District

A demurrer was properly sustained to a retaliation claim where the plaintiff did not allege any of the named defendants or non-party actors held any retaliatory animus toward plaintiff or even knew of her prior lawsuit. A trial court did not commit an abuse of discretion in denying a plaintiff leave to amend a claim when there was an unexplained delay of 14 months in raising the new cause of action. The Government Claims Act does not allow a plaintiff to "cure" her failure to file a pre-lawsuit claim by filing a post-lawsuit claim.

Le Mere v. Los Angeles Unified School District - filed April 30, 2019, publication ordered May 14, 2019, Second District, Div. Eight 

Cite as 2019 S.O.S. 2236 

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Wojciechowski v. Kohlberg Ventures

Reversing the district court’s dismissal, the panel held that claim preclusion did not bar a claim against Kohlberg Ventures, LLC, under the Worker Adjustment Retraining and Notification Act because a settlement agreement approved by the bankruptcy court in a prior class action did not release any claims against Kohlberg.

 The panel concluded that the parties in the bankruptcy proceeding did not intend their settlement to extend to Kohlberg. Accordingly, claim preclusion did not bar plaintiff’s WARN Act claim against Kohlberg. The panel remanded the case for further proceedings.

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NLRB Region 4 Office in Philadelphia Moving to New Location, Office to be Closed to the Public Friday and Monday for Move

The National Labor Relation Board’s (NLRB) Region 4 Office in Philadelphia will be relocating from their current offices at 615 Chestnut Street to 100 Penn Square, Suite 403, Philadelphia, PA 19107, on Tuesday, October 23.  In preparation for the move, the Philadelphia office will be closed to the public on Friday, October 19 and Monday, October 22.

During this time period, the Region 22 office in Newark will handle all telephone inquiries and will docket all charges and filings directed to Region 4 through the Agency’s e-filing system.

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NLRB Returns to Long-Standing Independent-Contractor Standard

Washington, DC—Today, the National Labor Relations Board returned to its long-standing independent-contractor standard, reaffirming the Board’s adherence to the traditional common-law test.  In doing so, the Board clarified the role entrepreneurial opportunity plays in its determination of independent-contractor status, as the D.C. Circuit has recognized.

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NLRB Chairman Responds to Members of Congress Regarding Review of Joint-Employer Comments

Washington, DC — Earlier today, Chairman John F. Ring responded to a March 14, 2019 letter from Chairman Bobby Scott (D-VA) and Chairwoman Frederica Wilson (D-FL) regarding the Agency’s planned process for review of comments submitted in response to its Notice of Proposed Rulemaking (NPRM) on the joint-employer standard.

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Board Rescinds Invitation to File Briefs in Loshaw Thermal Technology

WASHINGTON, D.C. — Today, the Board issued an order granting the Charging Party Union’s request to withdraw the underlying charge in Loshaw Thermal Technology, LLC, 05-CA-158650 and rescinded its Notice and Invitation to File Briefs (NIFB) in the matter.  The Board had invited briefs in this case to determine whether Section 9(a) bargaining relationships in the construction industry may be established by contract language alone.

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Board Grants Review and Invites Briefs Regarding Jurisdiction Over Charter Schools

Washington, DC—Today, the National Labor Relations Board issued an Order in KIPP Academy Charter School, 02-RD-191760, granting review in part and inviting the filing of briefs regarding whether the Board should exercise its discretion to decline jurisdiction over charter schools as a class under Section 14(c)(1) of the National Labor Relations Act (NLRA) and, therefore, modify or overrule the 2016 Hyde Leadership Charter School—Brooklyn, and Pennsylvania Virtual Charter School decisions.

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Timothy L. Watson Named Regional Director for Region 16

Washington, D.C. – National Labor Relations Board (NLRB) Chairman Philip A. Miscimarra and General Counsel Richard F. Griffin, Jr. announced Timothy L. Watson as the new Regional Director for the Agency’s Region 16 Office in Fort Worth and its Resident Offices in Houston and San Antonio.

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John D. Doyle, Jr. Named Regional Director for Region 10

National Labor Relations Board (NLRB) Chairman Philip A. Miscimarra and General Counsel Richard F. Griffin, Jr. announced John D.

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David Cohen Named Regional Director for Region 12

Washington, D.C. – National Labor Relations Board (NLRB) Chairman Philip A. Miscimarra and General Counsel Richard F. Griffin, Jr. have named David Cohen the new Regional Director for the Agency’s Region 12, headquartered in Tampa, Florida.

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John J. Walsh, Jr. Named Regional Director for Region 2

On October 31, 2017, National Labor Relations Board (NLRB) Chairman Philip A. Miscimarra and General Counsel Richard F. Griffin, Jr. announced John J. Walsh, Jr.

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31 Employees Offered Reinstatement in Ellen's Stardust Diner Settlement

Ellen’s Stardust Diner, home of the world-famous singing servers in Times Square, New York City, settled a number of unfair labor practice allegations in late September 2017, just a week before a hearing on the issues was scheduled to go forward. The restaurant agreed to offer reinstatement to all thirty-one discharged employees, expunge the employee records of the alleged unlawful discharges, and post and mail notices to current and former employees. Thirteen employees have accepted offers of reinstatement.

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Vazquez v. Jan-Pro Franchising International, Inc.

The "ABC test" for determining whether workers are employees adopted by the California Supreme Court in Dynamex Operations West v. Superior Court applies retroactively.

Vazquez v. Jan-Pro Franchising International, Inc. - filed May 2, 2019 

Cite as 2019 S.O.S. 17-16096 

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Goldstein v. California Unemployment Insurance Appeals Board

Section 1277.1 applies when a claim was filed for which the alternative base period was used, otherwise Sec. 1277 applies. Receipt of unemployment benefits during the prior benefit year does not invalidate a claim under Sec. 1277(a) and it does not preclude the application of Sec. 1277.5. Disability benefits constitute wages for purposes of Sec. 1277 regardless of whether the claimant received unemployment benefits during the prior benefit year.

Goldstein v. California Unemployment Insurance Appeals Board - filed April 30, 2019, Sixth District 

Cite as 2019 S.O.S. 2079 

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Muller v. Roy Miller Freight Lines, LLC

Defendant Roy Miller Freight Lines, LLC (RMFL) appeals from an order granting in part and denying in part its motion to compel its former employee, plaintiff William Muller (Muller), to arbitrate his wage and hour claims under the arbitration provision in his employment agreement.  The trial court granted RMFL’s motion on all but one cause of action, Muller’s claim for unpaid wages, and stayed the prosecution of that remaining claim pending the completion of the arbitration.

The crux of this appeal is whether the Federal Arbitration Act (FAA) applies, and more specifically, whether Muller is a transportation worker engaged in interstate commerce under 9 U.S.C. § 1 (section 1) and thus exempt from FAA coverage.  If he is exempt from FAA coverage, as the trial court held, Muller does not have to arbitrate his cause of action for unpaid wages because Labor Code section 229 (section 229) authorizes lawsuits for unpaid wages notwithstanding an agreement to arbitrate.  If the FAA applies, as RMFL contends, the FAA preempts section 229, and Muller must submit his cause of action for unpaid wages to arbitration, along with his five other causes of action. 

For the reasons set forth below, we affirm the trial court’s order.  The court correctly concluded Muller is exempt from FAA coverage under section 1.  Even though Muller did not physically transport goods across state lines, his employer is in the transportation industry, and the vast majority of the goods he transported originated outside California.  Thus, section 229 requires staying the prosecution of his cause of action for unpaid wages while the other five causes of action proceed to arbitration.  The court also correctly concluded the arbitrator, not the court, must determine whether to conduct the arbitration on an individual or classwide basis.

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Goldstein v. Cal. Unemployment Ins. Appeals Bd.

Steven M. Goldstein appeals following the denial of his petition for writ of administrative mandate to compel the California Unemployment Insurance Appeals Board (the Board) to set aside its decision denying unemployment insurance benefits.  We agree with Goldstein that the Board misapplied the governing law, thereby committing an abuse of discretion.  However, because Goldstein fails to show that the error was prejudicial, we nevertheless affirm.

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