Friday, July 26, 2019

West v. City of Caldwell

A homeowner’s lack of consent to the entry of her house was not clearly established under circumstances where the officer threatened to arrest the homeowner for concealing a wanted felon’s whereabouts, but the officer walked away and then returned and again asked for access to the house, and the homeowner nodded assent and handed over her key. As of August 2014, it was not clearly established that officers who thought they had permission to enter a home to apprehend a dangerous, potentially armed, and suicidal felon would exceed the scope of a homeowner’s consent to entry by employing tear gas canisters when they entered the home.

West v. City of Caldwell - filed July 25, 2019 
Cite as 2019 S.O.S. 18-35300 

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Wednesday, July 24, 2019

Newirth v. Aegis Senior Communities, LLC

Under federal law, a party seeking to prove that the right to compel arbitration has been waived must carry the burden of demonstrating knowledge of an existing right to compel arbitration; intentional acts inconsistent with that existing right; and prejudice to the person opposing arbitration from such inconsistent acts.

Newirth v. Aegis Senior Communities, LLC - filed July 24, 2019 
Cite as 2019 S.O.S. 17-17227 

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Two male LAPD officers retaliated against for supporting female officer. $8.6M. Los Angeles County.

LAPD male officers who support female's sexual harassment complaints are themselves subjected to retaliation.

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Tuesday, July 23, 2019

Vazquez v. Jan-Pro Franchising Int’l

Defendant-Appellee’s Petition for Panel Rehearing (Dkt. 93) is GRANTED. The opinion in the above-captioned matter filed on May 2, 2019, and published at 923 F.3d 575, is WITHDRAWN.

A revised disposition and an order certifying to the California Supreme Court the question of whether Dynamex Ops. W. Inc. v. Superior Court, 416 P.3d 1 (Cal. 2018), applies retroactively will be filed in due course.

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Monday, July 22, 2019

Wilson v. Cable News Network, Inc.

The anti-SLAPP statute can be used to screen claims alleging discriminatory or retaliatory employment actions; in such cases, the plaintiff’s allegations about the defendant’s invidious motives will not shield the claim from the same preliminary screening for minimal merit that would apply to any other claim arising from protected activity. The anti-SLAPP statute cannot apply to a defamation claim based on privately communicated remarks that were not made in connection with any issue of public significance.

Wilson v. Cable News Network, Inc. - filed July 22, 2019 
Cite as 2019 S.O.S. 3475 

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Thursday, July 18, 2019

Brown v. City of Sacramento

Plaintiff Wendell Brown sued his employer, the City of Sacramento (City), for racial discrimination and retaliation in violation of the California Fair Employment and Housing Act (FEHA).  (Gov. Code, § 12900 et seq.)  A jury returned a verdict in Brown’s favor.  The City moved for judgment notwithstanding the verdict and a new trial.  The trial court granted the motion for judgment notwithstanding the verdict in part, finding that Brown failed to exhaust administrative remedies with respect to some of the acts found to be retaliatory.  The trial court denied the motion with respect to other acts and effectively denied the motion for a new trial.   

The City appeals from the order partially denying the motion for judgment notwithstanding the verdict, arguing the remaining retaliation and discrimination claims are time-barred and barred for failure to exhaust administrative remedies.  The City also appeals from the order partially denying the motion for a new trial, arguing that juror misconduct deprived the City of a fair trial, and the trial court prejudicially erred in admitting evidence of the purportedly unexhausted and time-barred claims.  Finding no error, we affirm.

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Wednesday, July 17, 2019

Ixchel Pharma v. Biogen

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

Does section 16600 of the California Business and Professions Code void a contract by which a business is restrained from engaging in a lawful trade or business with another business?

Is a plaintiff required to plead an independently wrongful act in order to state a claim for intentional interference with a contract that can be terminated by a party at any time, or does that requirement apply only to at-will employment contracts?

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Friday, July 12, 2019

Monster Energy Company v. Schechter

Here the parties to a tort action agreed to settle their lawsuit.  Their agreement was reduced to writing and included several provisions purporting to impose confidentiality obligations on the parties and their counsel.  All parties signed the agreement and their lawyers signed under a notation that they approved the written agreement as to form and content. 

Counsel allegedly violated the agreement by making public statements about the settlement and were sued, inter alia, for breach of contract.  Counsel urged they were not personally bound by the confidentiality provisions and moved to dismiss the suit under the anti-SLAPP statutes.  As to the cause of action at issue here, the trial court denied counsels’ motion.  The Court of Appeal reversed that ruling, concluding the notation meant only that counsel recommended their clients sign the document.  We conclude the notation does not preclude a factual finding that counsel both recommended their clients sign the document and intended to be bound by its provisions.

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Thursday, July 11, 2019

Blaser v. State Teachers' Retirement System

California State Teachers’ Retirement System (CalSTRS) is the state agency responsible for managing contributions made by employees and member school districts to the State Teachers’ Retirement Fund.  (See Ed. Code, § 22000 et seq.) In March 2014, William Baxter and 10 other retired teachers (the Baxter petitioners) formerly employed by the Salinas Unified High School District (District) filed a petition for a peremptory writ of administrative mandamus, naming CalSTRS as respondent and the District as real party in interest.  (See Baxter v. State Teachers’ Retirement System (2017) 18 Cal.App.5th 340, 351 (Baxter).)  The Baxter petitioners sought relief to prevent CalSTRS from continuing to reduce their monthly retirement benefit payments and to restore prior monies they claimed CalSTRS had wrongfully withheld.  (Ibid.)  CalSTRS made the deductions to recoup overpayments that had been made to the Baxter petitioners as a result of a years-long miscalculation by the District of their monthly retirement benefits.  (Id. at p. 347.)  The trial court held that the three-year statute of limitations (§ 22008, subd. (a)) barred CalSTRS from (1) recouping prior overpayments made to the Baxter petitioners by adjusting downward their future monthly benefits, and (2) reducing their future monthly benefits to reflect the correct calculation of their benefits.  (Baxter, supra, at pp. 347-348.)  In December 2017, a panel of this court reversed, concluding the trial court had erred in holding that CalSTRS’s efforts to recoup overpayments were time-barred as to all monthly retirement payments, both past and future.  (Id. at p. 349.)  This court found that the continuous accrual theory applied.  (Id. at p. 382.)  Under this theory, “ ‘a series of wrongs or injuries may be viewed as each triggering its own limitations period, such that a suit for relief may be partially time-barred as to older events but timely as to those within the applicable limitations period.  [Citation.]’  [Citation.]”  (Id. at pp. 378-379.)

The present action is a successor to the suit by the Baxter petitioners.  In February 2016—while the Baxter appeal was pending—respondents in this appeal, who are 31 retired District teachers (hereafter collectively Teachers), filed a petition for writ of mandate and a complaint for declaratory and injunctive relief against CalSTRS and the District.  Like the Baxter petitioners, Teachers challenged reductions that CalSTRS had made and continued to make to their monthly retirement benefits to recoup prior overpayments and to adjust ongoing monthly benefits to their proper amounts.  The overpayments were the result of the same miscalculation the District had made to the Baxter petitioners’ monthly retirement benefits. 

In July 2017—five months prior to this court’s decision in Baxter—the trial court granted Teachers’ petition for writ of mandate in this case, concluding that CalSTRS’s claims to reduce Teachers’ retirement benefits and collect overpayments were time-barred.  The trial court held that CalSTRS, by no later than July 30, 2010, “was ‘aware of the possibility’ ” that there were District schoolteachers other than the Baxter petitioners whose retirement benefits had been incorrectly calculated by the District, but that “CalSTRS did not take action until 2014, more than three years later.”  In holding that CalSTRS was barred from recouping prior overpayments from Teachers or from reducing future payments to correct the District’s prior miscalculation, the trial court concluded that the continuous accrual theory did not apply.

CalSTRS appealed from the judgment.  In its appeal, CalSTRS challenges the trial court’s rejection of the continuous accrual theory.  CalSTRS urges that, under Baxter, the continuous accrual theory applies, and that “CalSTRS is time-barred only as to claims relating to pension benefit payments made more than three years before CalSTRS took ‘action’ by reducing each individual teacher’s monthly benefit payment[].”

We hold—following Baxter, supra, 18 Cal.App.5th 340, which in turn relied on Supreme Court precedent, including Dryden v. Board of Pension Commrs. (1936) 6 Cal.2d 575 (Dryden)—that the continuous accrual theory applies here to the periodic pension benefit payments made to Teachers.  Thus, CalSTRS was time-barred from pursuing any claim against Teachers as to pension benefit overpayments made more than three years before CalSTRS commenced an action.  But CalSTRS is not barred by the statute of limitations from pursuing any claim concerning periodic overpayments to Teachers and adjustments to Teachers’ future monthly benefits, where the payment accrued not more than three years prior to commencement of an action.  Further, the trial court held that CalSTRS commenced an “action” by reducing Teachers’ monthly benefit payments beginning in 2014.  But we decide—as we did in Baxter—that the reduction in benefits made by CalSTRS, under the factual and procedural context presented here, did not constitute the commencement of an “action” within the meaning of the statute of limitations.  Instead, we conclude that CalSTRS constructively commenced an “action” at the time Teachers herein filed their verified petition and complaint in the superior court on February 1, 2016.  Under well-established legal principles, the filing of a complaint by the plaintiff tolls or suspends the statute of limitations as to any counterclaims existing in favor of the defendant on the date of such filing.  (Union Sugar Co. v. Hollister Estate Co. (1935) 3 Cal.2d 740, 746 (Union Sugar).)  Therefore, CalSTRS is deemed to have commenced an “action” to toll or suspend the statute of limitations when Teachers filed suit on February 1, 2016.  Accordingly, we hold that CalSTRS may assert claims to recoup overpayments for past monthly payments accruing on or after February 1, 2013, and it may adjust future monthly payments to recoup prior overpayments (on benefit payments that accrued on or after February 1, 2013) and to correct the District’s prior miscalculation of monthly benefits going forward.  We will reverse the judgment.

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Tuesday, July 9, 2019

Townley v. BJ’s Restaurants

Labor Code §2802 does not require an employer to reimburse its employees for the cost of slip-resistant shoes as necessary expenditures incurred by the employees in direct consequence of the discharge of their duties.

Townley v. BJ’s Restaurants - filed June 4, 2019, publication ordered July 8, 2019, Third District 
Cite as 2019 S.O.S. 3245 

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Wednesday, July 3, 2019

Edge v. City of Everett

The panel vacated the district court’s preliminary injunction against enforcement of the City of Everett, Washington’s Dress Code Ordinance—requiring that the dress of employees, owners, and operators of Quick-Service facilities cover “minimumbody areas”—and the amendments to the Lewd Conduct Ordinances.

Plaintiffs are owners and employees of a bikini barista stand in Everett, Washington.

The panel held that plaintiffs did not show a likelihood of success on the merits of their two Fourteenth Amendment void-for-vagueness challenges, nor on their First Amendment free expression claim.

Concerning the Lewd Conduct Ordinances, which expanded the definition of “lewd act” and also created the misdemeanor offense of Facilitating Lewd Conduct, the panel held that the activity the Lewd Contact Amendments prohibited was reasonably ascertainable to a person of ordinary intelligence. The panel also held that the Amendments were not amenable to unchecked law enforcement discretion. The panel concluded that the district court abused its discretion by holding that the plaintiffs were likely to succeed on the merits of their void-for-vagueness challenge to the Amendments.

Concerning enjoinment of the enforcement of the Dress Code Ordinance, the panel held that the vagueness principles governing the panel’s analysis of the Lewd Conduct Amendments applied with equal force to the Dress Code Ordinance. The panel concluded that the vagueness doctrine did not warrant an injunction prohibiting enforcement of the Dress Code Ordinance. As to plaintiffs’ First Amendment contention that the act of wearing almost no clothing while serving coffee in a retail establishment constituted speech, the panel held that plaintiffs had not demonstrated a “great likelihood” that their intended messages related to empowerment and confidence would be understood by those who view them. The panel concluded that the mode of dress at issue in this case was not sufficiently communicative to merit First Amendment protection. The panel also held that the district court’s application of intermediate scrutiny under the “secondary effects” line of authority was inapposite, and the City need only demonstrate that the Dress Code Ordinance promoted a substantial government interest that would be achieved less effectively absent the regulation. Because the district court did not analyze the ordinance under this framework, the panel vacated the preliminary injunction and remanded for further proceedings.

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Tuesday, July 2, 2019

Amalgamated Transit Union Local 1015 v. Spokane Transit Auth.

The panel affirmed the district court’s judgment in favor of a union in a case involving the union’s challenge to the Spokane Transit Authority (“STA”)’s decision, under its advertising policy, not to run a proposed advertisement from the union on STA’s buses.

The panel affirmed the district court’s holding that the STA unreasonably rejected the proposed ad in violation of the union’s First Amendment rights. The panel declined to accept the First and Sixth Circuit’s approaches of giving deference to a transit agency’s application of its advertising policy.

The panel held that the STA’s bus advertising program was classified as a “limited public forum” which allowed content-based restrictions as long as they were reasonable and viewpoint neutral. The panel applied the three-part test for a limited public forum to review STA’s decision to exclude the union’s ad under “public issue” advertising. First, the panel held that the policy was reasonable in light of the forum because STA’s concern with engaging in matters of public debate was related to the purpose of running an efficient and profitable transit system. Second, the panel held that STA’s standard lacked objective criteria to provide guideposts for determining what constituted prohibited “public issue” advertising. Third, the panel held that, based on an independent review of the record, STA’s application of its “public issue” advertising ban to exclude the union’s proposed ad was unreasonable.

Finally, the panel held that because the union’s ad promoted an organization that engaged in commercial activity, STA unreasonably applied its “commercial and promotional advertising” policy to reject the union’s ad.

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