Brown v. Cal. Unemployment Ins. Appeals Bd.

The question in this case is a narrow one, involving the correct rate of interest to be applied after a court determines that unemployment benefits have been wrongfully withheld by the Employment Development Department (EDD) and the California Unemployment Insurance Appeals Board (Board).  Appellant Mark Brown (Brown) argues that interest should be charged at the contract rate of 10 percent from the date that each benefit payment was due, in accordance with Civil Code section 3289, subdivision (b).  EDD, in contrast, asserts that the trial court correctly determined that any such interest should be calculated at the rate of 7 percent, as authorized by article XV, section 1, of the California Constitution and Government Code section 965.5, subdivisions (a) and (d).  We conclude that the trial court applied the incorrect interest rate to the wrongfully withheld benefits at issue.  Accordingly, we reverse for recalculation of interest, but affirm in all other respects.

Brown v. Cal. Unemployment Ins. Appeals Bd. (CA1/4 A145487 2/28/18) Unemployment Benefits Rate of Interest

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City of South San Francisco v. Workers' Compensation Appeals Board

An employer is not liable for a cumulative injury under Labor Code Sec. 5500.5(a) absent evidence that exposure during that employment was injurious. Labor Code Sec. 3212.1's presumption of industrial causation serves to protect an injured worker, not to allow for an allocation of liability between employers.

City of South San Francisco v. Workers' Compensation Appeals Board - filed Feb. 26, 2018, First District, Div. Five
Cite as 2018 S.O.S. 963

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Victaulic Company v. American Home Assurance Company

A defendant's responses to requests for admission denying an allegation is not admissible as evidence regardless of whether the denial is consistent or inconsistent with the testimony of a defense witness at trial. RFA responses represent legal strategy, not statements of fact. While a trial court has the power to examine witnesses, it cannot act as a cross-examiner. A trial judge committed reversible misconduct by grilling a witness, and openly mocking her. The Fifth Amendment privilege must be asserted with specific reference to particular questions asked or other evidence sought. A blanket refusal to testify is unacceptable. It is improper for a court to require a witness to invoke her Fifth Amendment privilege in front of a jury.

Victaulic Company v. American Home Assurance Company -
filed Feb. 26, 2018, First District, Div. Two
Cite as 2018 S.O.S. 927

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Local Joint Executive Board of Las Vegas v. NLRB (Archon Corp.)

The National Labor Relations Board abused its discretion in declining to award a union make-whole relief, which is the standard remedy when an employer unlawfully ceases a union's dues-checkoff, without providing a valid explanation for its decision. The board's decision to deviate from its standard remedy in light of the employer's reliance on board precedent was improper because that precedent had never been applied in a reasoned manner in the absence of a union security clause.

Local Joint Executive Board of Las Vegas v. NLRB (Archon Corp.) - filed Feb. 27, 2018
Cite as 2018 S.O.S. 15-72878

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Bel Air Internet, LLC v. Morales

This appeal requires us to consider the role of the pleadings and supporting declarations in deciding a motion to strike under the anti-SLAPP statute (Code Civ. Proc., § 425.16).  Section 425.16 protects the exercise of certain constitutional rights by permitting a motion to strike when a complaint targets specified conduct that involves the right to freedom of speech or the right to petition the government.  When a plaintiff’s complaint shows that a claim arises from communications that are protected under the statute, must the defendant support a motion to strike with declarations confirming that his or her actions fall within one of the categories of protected conduct?

We conclude that, when the complaint itself alleges protected activity, a moving party may rely on the plaintiff’s allegations alone in arguing that the plaintiff’s claims arise from an act “in furtherance of the person’s right of petition or free speech.”  (§ 425.16, subd. (b)(1).)  While section 425.16 requires a court to consider both the “pleadings” and the “supporting and opposing affidavits stating the facts upon which the liability or defense is based” (§ 425.16, subd. (b)(2)), it does not require a moving party to submit declarations confirming the factual basis for the plaintiff’s claims.  Otherwise, a defendant who disputes the plaintiff’s allegations (as appellants do here) might be precluded from bringing an anti-SLAPP motion.  That would have the perverse effect of making anti-SLAPP relief unavailable when a plaintiff alleges a baseless claim, which is precisely the kind of claim that section 425.16 was intended to address.  (See Baral v. Schnitt (2016) 1 Cal.5th 376, 384 (Baral) [the anti-SLAPP statute “provides a procedure for weeding out, at an early stage, meritless claims arising from protected activity”].)

Here, plaintiff and respondent Bel Air Internet, LLC (Bel Air) alleges that defendants and appellants Albert Morales and Flavio Delabra (collectively, Appellants) encouraged fellow employees of Bel Air to quit and sue the company for alleged employment violations rather than sign a release of such claims that Bel Air requested.  Consistent with several decisions by our Supreme Court, we conclude that such prelitigation conduct encouraging third parties to sue is protected petitioning activity under section 425.16, subdivision (e).  In bringing a motion to strike under that section, Appellants could rely on Bel Air’s allegations that they urged other employees to quit and sue, even though Appellants denied engaging in this conduct. We therefore reverse the trial court’s order denying Appellants’ motion to strike.

Bel Air Internet, LLC v. Morales (CA2/2 B270268 2/26/18) Anti-SLAPP

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Cal Fire Local 2881 v. Public Employment Relations Bd.

This appeal has consumed nearly seven years of administrative and judicial resources in the pursuit of an untenable litigation position.  Plaintiff Cal Fire Local 2881 (plaintiff) is an employee association that acts as the exclusive representative of a bargaining unit of personnel in various classifications in the civil service who work throughout the state for appointing power Cal Fire (which is not a party to this case).  Plaintiff appeals from the denial of its petition for a writ of mandate directing defendant Public Employment Relations Board (the PERB) to issue a complaint on the unfair labor practice charge that plaintiff filed with it against real party in interest State Personnel Board for failure to meet and confer with plaintiff over the changes the State Personnel Board effected in the regulations governing its procedures for adjudicating disciplinary hearings and appeals, which apply uniformly to all employees in the civil service.

Both the PERB and the trial court have provided cogent decisions explaining why this challenge to the PERB’s dismissal of the charge is without any basis in law.  Plaintiff nonetheless persists.  Fortunately for plaintiff, neither the PERB (which appears in this court to defend the judgment) nor the State Personnel Board request imposition of sanctions for a frivolous appeal.  We accordingly affirm the judgment.

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Johnen v. MSPB

Johnen v. MSPB (9th Cir. 16-73427 2/16/18) Merit System Protection Board

The panel dismissed a petition for review as to the United States Merit Systems Protection Board; and denied in part, granted in part, and remanded the petition for review as to the United States Department of the Army in a case brought by a former civilian employee at Fort Hunter Liggett, a military base in California alleging that the Army terminated him and excluded him from his work site because he had made complaints that were protected by the Whistleblower Protection Act of 1989.

The Board affirmed the administrative law judge’s finding that the petitioner failed to make a prima facie case that his complaint to the Department of Defense Inspector General was a contributing factor in the Army’s decision to terminate him and exclude him from a work site.

The panel held that the Army was the only proper respondent in this case where petitioner brought a “mixed case” by challenging both jurisdictional or procedural matters and the merits of an adverse personnel action. The panel further held that because petitioner was seeking review of the Board’s decision on the merits of his termination and exclusion, the Board was not the proper respondent; and only the agency that took the action – the Army – was properly “the” respondent.

The panel also held that the petitioner received due process. The panel rejected petitioner’s argument that the Board violated his due process rights by deciding his appeal when only two Board members, instead of the usual three, held office.

Finally, the panel held that the Board’s decision on the merits was supported by substantial evidence and was procedurally proper.

In a separate memorandum disposition, the panel granted the petition in part and remanded the case for consideration of an additional issue.

Johnen v. MSPB (9th Cir. 16-73427 2/16/18) Merit System Protection Board

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