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Gerawan Farming, Inc. v. Agricultural Labor Relations Bd. (CA5  F069896 5/9/16)Judicial Review/Agricultural Labor Relations Board’s No-Public-Access Ruling


Pursuant to Labor Code section 1164 et seq., if an agricultural employer and a union certified to represent the agricultural employees of that employer have failed to reach an initial collective bargaining agreement (CBA), the Agricultural Labor Relations Board (the Board) may, if requested by one of the parties and certain statutory conditions are met, order them to undergo a binding process referred to in the statute as “mandatory mediation and conciliation” (MMC).  (§ 1164, subd. (a).)  In the MMC process, after an initial 30-day period of voluntary mediation is exhausted, a decision-maker (the mediator) takes evidence and hears argument from the parties on all disputed issues (the “on the record” phase of the MMC process) and then submits a “report” to the Board stating the mediator’s findings on what he or she believes the terms of the CBA should be.  The grounds for the mediator’s determinations must be stated in the report and supported by the factual record.  (§ 1164, subd. (d).)  When the report becomes the final order of the Board, it establishes the terms of an imposed CBA to which the parties are bound.  (§ 1164.3, subds. (a)–(e).)


In this case, Lupe Garcia (Garcia), an employee of agricultural employer, Gerawan Farming, Inc. (Gerawan), requested the Board’s permission to attend and peaceably observe the MMC process that had been ordered between Gerawan and United Farm Workers (UFW).  Specifically, Garcia wished to observe the on-the-record phase of the MMC process, where evidence and argument would be presented by the parties to the mediator on all disputed issues.  In his request to the Board, Garcia argued that he and other members of the public had a constitutional right of access to the on-the-record portion of the MMC process.  The Board rejected Garcia’s request and proceeded to issue a broad policy decision that members of the public have no right to attend MMC proceedings.  (See Gerawan Farming, Inc. v. United Farm Workers of America (Aug. 21, 2013) 39 ALRB No. 13.)


In response to the Board’s no-public-access ruling, Gerawan filed a declaratory relief action in the trial court, seeking a judicial declaration that the Board’s ruling violated a right of public access protected under both the federal and state Constitutions.  Garcia intervened in the same action and filed a similar pleading in the form of a complaint-in-intervention.  The Board demurred to both complaints on the ground that the trial court lacked jurisdiction because section 1164.9 limited all judicial review of the Board’s rulings in such cases to the Court of Appeal or Supreme Court.  The trial court agreed with the Board and sustained the demurrers without leave to amend.  Gerawan and Garcia have separately appealed from the resulting judgments of dismissal, arguing that (1) section 1164.9 did not preclude the trial court from exercising jurisdiction because that section is unconstitutional and (2) the Board’s no-public-access policy violates a right of public access to civil proceedings protected under the federal or state Constitution, or both.


We agree with Gerawan and Garcia on the first point, and we remand the action to the trial court on the second.  As to section 1164.9, we hold that its absolute preclusion of superior court jurisdiction, even in exceptional circumstances where (as with Garcia) the sole statutory mechanism for judicial review was unavailable and constitutional rights were assertedly at stake, impermissibly divested the superior court of its original jurisdiction without an adequate constitutional foundation for doing so.  Therefore, section 1164.9 is unconstitutional.


It follows that the judgments of dismissal must be reversed.  The trial court had jurisdiction to reach the constitutional issues raised in the several causes of action.  Accordingly, we will reverse and remand the case back to the trial court for further proceedings consistent with this opinion.

Daza v. LA Community College Dist. (CA2/8 B261525 5/6/16) California Tort Claims Act/Duty to Defend Public Employee


This case requires us to interpret provisions of the California Tort Claims Act (Gov. Code, § 810 et seq.) requiring public employers to defend and indemnify their employees for third party claims arising out of acts within the scope of employment.  (§§ 825-825.6, 995-996.6.)  These provisions provide “that in the usual civil case brought against a public employee, a public entity must provide a defense to the employee (§ 995 et seq.) and pay any claim or judgment against him.  (§ 825 et seq.)  Where the public entity refuses to defend, the employee can seek a writ of mandate . . . .  Alternatively, he can fund his own defense and then sue for reasonable attorney fees, costs and expenses incurred if the action or proceeding arose out of an act or omission in the scope of his employment as an employee of the public entity, but recovery is barred if the agency establishes the employee acted or failed to act because of ‘actual fraud, corruption or actual malice.’  (§ 996.4.)”  (Stone v. Regents of University of California (1999) 77 Cal.App.4th 736, 746 (Stone).)


In this case, an adult student sued the Los Angeles Community College District (the District) and Igor Daza, a guidance counselor employed by the District, alleging Daza sexually assaulted her when she went to his office for counseling services (the main lawsuit).  The District refused to defend him, so he paid for his own defense and filed a cross-complaint denying the allegations of sexual assault and seeking indemnity and reimbursement for his defense.  After the District settled the main lawsuit without admitting liability and without a factual determination of whether Daza was acting within the scope of his employment, the student dismissed all her claims against the District and Daza with prejudice.  The District then demurred to Daza’s cross-complaint, arguing the student’s allegations of sexual assault in the main lawsuit fell outside the scope of Daza’s employment as a matter of law.  Daza opposed, arguing he was not limited to the allegations in the main lawsuit in carrying his burden to prove the acts fell within the scope of his employment.  The trial court agreed with the District and refused to look beyond the allegations in the main lawsuit to hold as a matter of law that the alleged acts of sexual assault fell outside the scope of Daza’s employment.


We reverse.  We agree with the trial court that the sexual assault alleged in the main lawsuit fell outside the scope of Daza’s employment as a matter of law.  But under a proper interpretation of section 996.4, the determination of whether an employee acted within the scope of employment is factual and cannot be limited to the third party’s allegations in the underlying lawsuit when the employee denies those allegations, and the employee’s version of events would demonstrate acts within the scope of employment.

Vergara v. State of California  (CA2/2 B258589, filed 4/14/16, mod. 5/3/16) Teacher Tenure Statutes/Constitutionality




It is ordered that the opinion filed herein on April 14, 2016, be modified as follows:

Page 8, footnote 2, add the following language to the last sentence of the footnote immediately preceding the citations to In re Marriage Cases and White v. Davis:  that affect the very fabric of personnel decisions for teachers throughout California.

Footnote 2 now reads in its entirety:


At the time of trial, defendants were:  The State of California; Edmund G. Brown, Jr., in his official capacity as Governor of California; the California Department of Education (CDE); the State Board of Education; and Tom Torlakson, in his official capacity as State Superintendent of Public Instruction (the State defendants); as well as California Teachers Association and the California Federation of Teachers (the intervener defendants), who were granted leave to intervene as defendants prior to trial.  The State defendants and the intervener defendants filed separate briefs on appeal.  Because the positions taken by the two sets of defendants are, for the most part, essentially identical, we generally refer to defendants collectively in this opinion.  We reject the State defendants’ contention that the governor is an improper defendant.  Because public education is ultimately a state obligation (Butt, supra, 4 Cal.4th 668, 680) and “[t]he supreme executive power of this State is vested in the Governor” (Cal. Const., art. V, § 1), the Governor is a proper defendant in this lawsuit mounting a facial challenge to five statutes of state-wide application that affect the very fabric of personnel decisions for teachers throughout California.  (See also In re Marriage Cases (2008) 43 Cal.4th 757 [Governor named as defendant]; White v. Davis (2003) 30 Cal.4th 528 [same].)


This modification does not effect a change in judgment.

Corbin v. Time Warner (9th Cir. 13-55622 5/2/16) Rounding and Overtime Pay


The panel affirmed the district court’s summary judgment in favor of Time Warner Entertainment-Advance/Newhouse Partnership (“TWEAN”) in a putative class action brought by a plaintiff TWEAN employee seeking lost compensation.


In his “rounding” claim, plaintiff alleged that TWEAN’s compensation policy of rounding all employee time stamps to the nearest quarter hour deprived him of earned overtime compensation. In his “logging-in” claim, plaintiff alleged that he was not compensated for one minute when he mistakenly opened an auxiliary computer program before logging into TWEAN’s timekeeping software.


The panel held that TWEAN’s rounding policy comported with the federal rounding regulation, 29 C.F.R. § 785.48(b). The panel further held that TWEAN’s rounding policy was neutral on its face and as applied to plaintiff. The panel concluded that the district court properly interpreted and applied the regulation, and granted summary judgment to TWEAN.


The panel held that the district court properly granted summary judgment to TWEAN on plaintiff’s “logging-in” claim and the district court properly classified the one minute of uncompensated time as de minimis. The panel held that the district court properly considered the de minimis doctrine even though TWEAN did not affirmatively plead it in its answer. The panel further held that all three factors in Lindow v. United States, 738 F.2d 1057, 1062 (9th Cir. 1984),supported the district court’s conclusion that plaintiff’s one minute of uncompensated time was de minimis.


The panel held that plaintiff also failed to demonstrate the existence of a material fact to his derivative California state law claims. In addition, the panel held that the district court did not err by limiting consideration of plaintiff’s rounding claim to the time period after the implementation of new online timekeeping system. Finally, because the panel affirmed the district court’s grant of summary judgment to TWEAN on plaintiff’s rounding claim, the panel held that there was no need for the district court to reconsider whether the claim can form the basis of a viable class action proceeding.

Heffernan v. City of Paterson (US 14-1280 4/26/16) First Amendment/Public Employee

Petitioner Heffernan was a police officer working in the office of Pater­son, New Jersey’s chief of police. Both the chief of police and Heffer­nan’s supervisor had been appointed by Paterson’s incumbent mayor, who was running for re-election against Lawrence Spagnola, a good friend of Heffernan’s. Heffernan was not involved in Spagnola’s campaign in any capacity. As a favor to his bedridden mother, Hef­fernan agreed to pick up and deliver to her a Spagnola campaign yard sign. Other police officers observed Heffernan speaking to staff at a Spagnola distribution point while holding the yard sign. Word quickly spread throughout the force. The next day, Heffernan’s su­pervisors demoted him from detective to patrol officer as punishment for his “overt involvement” in Spagnola’s campaign. Heffernan filed suit, claiming that the police chief and the other respondents had demoted him because, in their mistaken view, he had engaged in conduct that constituted protected speech. They had thereby “depriv[ed]” him of a “right . . . secured by the Constitution.” 42 U. S. C. §1983. The District Court, however, found that Heffernan had not been deprived of any constitutionally protected right because he had not engaged in any First Amendment conduct. Affirming, the Third Circuit concluded that Heffernan’s claim was actionable under §1983 only if his employer’s action was prompted by Heffernan’s ac­tual, rather than his perceived, exercise of his free-speech rights.



1. When an employer demotes an employee out of a desire to pre­vent the employee from engaging in protected political activity, the employee is entitled to challenge that unlawful action under the First Amendment and §1983 even if, as here, the employer’s actions are based on a factual mistake about the employee’s behavior. To answer the question whether an official’s factual mistake makes a critical le­gal difference, the Court assumes that the activities that Heffernan’s supervisors mistakenly thought he had engaged in are of a kind that they cannot constitutionally prohibit or punish. Section 1983 does not say whether the “right” protected primarily focuses on the em­ployee’s actual activity or on the supervisor’s motive. Neither does precedent directly answer the question. In Connick v. Myers, 461U. S. 138, Garcetti v. Ceballos, 547 U. S. 410, and Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563, there were no factual mistakes: The only question was whether the undisputed reason for the adverse action was in fact protected by the First Amendment.


However, in Waters v. Churchill, 511 U. S. 661, a government employer’s adverse action was based on a mistaken be­lief that an employee had notengaged in protected speech. There, this Court determined that the employer’s motive, and particularly the facts as the employer reasonably understood them, mattered in determining that the employer had not violated the First Amend­ment. The government’s motive likewise matters here, where re­spondents demoted Heffernan on the mistaken belief that he had en­gaged in protected speech. A rule of law finding liability in these circumstances tracks the First Amendment’s language, which focuses upon the Government’s activity. Moreover, the constitutional harm— discouraging employees from engaging in protected speech or associa­tion—is the same whether or not the employer’s action rests upon a factual mistake. Finally, a rule of law imposing liability despite the employer’s factual mistake is not likely to impose significant extra costs upon the employer, for the employee bears the burden of prov­ing an improper employer motive. Pp. 3–8.


2. For the purposes of this opinion, the Court has assumed that Heffernan’s employer demoted him out of an improper motive. How­ever, the lower courts should decide in the first instance whether re­spondents may have acted under a neutral policy prohibiting police officers from overt involvement in any political campaign and wheth­er such a policy, if it exists, complies with constitutional standards.

P. 8. 777 F. 3d 147, reversed and remanded.

BREYER, J., delivered the opinion of the Court, in which ROBERTS,

C. J., and KENNEDY, GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. THOMAS, J., filed a dissenting opinion, in which ALITO, J., joined.


Cite as: 578 U. S. ____ (2016).

Rodriguez v. E.M.E., Inc. (CA2/4   B264138 4/22/16) Rest Breaks


In the underlying action, appellant Juan Rodriguez asserted putative class claims against respondent E.M.E., Inc. (E.M.E.) for violations of the Labor Code,  Industrial Welfare Commission (IWC) Wage Order No. 1-2001 (Wage Order 1-2001), and the unfair competition law (UCL) (Bus. & Prof. Code, § 17200 et seq.).  After granting appellant’s motion for class certification, the trial court granted E.M.E.’s motion for summary judgment on appellant’s claims, which relied on Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1026 (Brinker).  We conclude that summary judgment was incorrectly granted with respect to appellant’s claims relating to rest breaks, as Brinker explained that under the applicable wage order provision, rest breaks in an eight-hour shift should fall on either side of the meal break, absent factors rendering such scheduling impracticable.  We therefore affirm in part, reverse in part, and remand for further proceedings.


Espejo v. So. CA Permanente Med. Group (CA2/4  B262717 4/22/16) Arbitration


Jay Espejo, M.D., sued defendants Southern California Permanente Medical Group, Kaiser Foundation Health Plan, Inc., Kaiser Foundation Hospitals, and Joseph Huang, M.D. (collectively, defendants) alleging wrongful termination and whistleblower retaliation.  Defendants petitioned to compel arbitration pursuant to Espejo’s employment agreement and associated documents.  The trial court denied the petition, finding that defendants failed to establish the existence of an enforceable arbitration agreement between the parties.  On appeal, defendants argue the trial court erred in reaching that conclusion, and in striking a supplemental declaration filed in support of their petition.  They further contend the arbitration agreement was valid and neither procedurally nor substantively unconscionable.  We conclude the trial court erroneously excluded the declaration as untimely and further, the declaration established the existence of an agreement to arbitrate.  We therefore reverse and remand to the trial court for consideration of the remaining issues raised by the parties.

Davis v. Farmers Ins. Exchange (CA2/4 B257970M, filed 3/28/16, mod. 4/21/16)Misclassification/FEHA Same Decision Instruction


It is ordered that the opinion filed March 28, 2016 be modified as follows: 


page 3, line 10, the word “partial” is inserted before the word “retrial”;


page 7, replace footnote 7 with the following:  “Appellant devoted a considerable portion of his opening and reply briefs to the evidence presented in the first phase of the trial, in which the jury found he was Farmers’s employee.  Farmers had ample opportunity to challenge the evidence supporting that finding.  (See Cristler v. Express Messenger Systems, Inc. (2009) 171 Cal.App.4th 72, 78 [determination of employee status is one of fact, and appellate courts “have no authority to simply second-guess the conclusion reached by the fact finder”].)  Moreover, Farmers had an incentive to challenge the finding, as appellant sought to revive his wage claim, the viability of which depended largely on his status as an employee.  (See Discussion, part C.)  Accordingly, there is no issue with respect to appellant’s status as an employee in this appeal, and no basis for relitigating that issue when the matter returns for reconsideration of the wage claim.”;


page 32, line 12, the words “it had” are deleted;


page 39, footnote 22, the following is added at the end of the footnote:  “Farmers asserts and appellant does not dispute that the loans were owed to an independent party, Farmers Insurance Group Federal Credit Union.  Whether the unpaid wages were retained by Farmers or distributed to a third party is irrelevant to appellant’s claim for failure to pay wages due.”; 


page 43, the following is added at the end of the final paragraph:  “As Davis was found to be Farmers’s employee in the first phase of the bifurcated trial and there has been no showing of error with respect to that finding, retrial of the wage claim is properly limited to second phase issues.  (See Bullock v. Philip Morris USA, Inc. (2008) 159 Cal.App.4th 655, 696 [Court of Appeal may order retrial on limited issues if such can be separately tried without prejudice to litigants in order to preserve the results of trial on issues as to which error has not been shown].)”; 


page 43, a new footnote is inserted after “shown].)” containing the following text:  “Had Farmers not invited the court’s error in seeking a directed verdict on the wage claim, it would have been compelled to defend against that claim in light of the jury’s finding that appellant was Farmers’s employee.  We see no unfairness in limiting the retrial to issues that in the absence of the erroneous grant of a directed verdict would properly have been before the jury, thus “reliev[ing] the trial court and the parties of the unnecessary burden of relitigating issues that have been decided . . . .  (Bullock v. Philip Morris USA, Inc., supra, 159 Cal.App.4th at p. 696.)”;


page 44, line 8, the word “partial” is inserted prior to the word “retrial”; 


page 44, line 10, the following phrase is added after the word “wages”:  “in accordance with the views set forth in this opinion”.


The petition for rehearing is denied.  The modification does not change the judgment.


Estate of Barton v. ADT (9th Cir. No. 13-56379 4/21/16) ERISA


The panel reversed the district court’s judgment after a bench trial in favor of the defendants in an action under the Employee Retirement Income Security Act, challenging a denial of pension benefits on the basis that the plaintiff did not have sufficient years of service with an employer or its affiliates.


The panel held that the burden of proving entitlement to benefits was not properly placed on the plaintiff because the defendants were in a better position to ascertain whether an entity was a participating employer in the ERISA plan. The panel held that when a claimant has made a prima facie case that he is entitled to a pension benefit but lacks access to the key information about corporate structures or hours worked needed to substantiate his claim, and the defendant controls such information, the burden shifts to the defendant to produce this information. The panel remanded the case to the district court to apply the correct burden of proof.


Dissenting, Judge Ikuta wrote that the majority’s burden-shifting rule was contrary to the abuse of discretion review applicable to the plaintiff’s claim.

Vergara v. State of California  (CA2/2 B258589 4/14/16) Teacher Tenure Statutes/Constitutionality


In this lawsuit, nine students who were attending California public schools sued the State of California and several state officials, seeking a court order declaring various provisions of California’s Education Code unconstitutional.  According to plaintiffs, these provisions, which govern how K-12 public school teachers obtain tenure, how they are dismissed, and how they are laid off on the basis of seniority, violate the California Constitution’s guarantee that all citizens enjoy the “equal protection of the laws.”  (Cal. Const., art. I, § 7, subd. (a).)  The matter went to trial.  After hearing eight weeks of evidence, the trial court issued a ruling declaring five sections of the Education Code—sections 44929.21, subdivision (b), 44934, 44938, subdivisions (b)(1) and (b)(2), 44944, and 44955— unconstitutional and void.  Defendants have appealed this judgment.


We reverse the trial court’s decision.  Plaintiffs failed to establish that the challenged statutes violate equal protection, primarily because they did not show that the statutes inevitably cause a certain group of students to receive an education inferior to the education received by other students.  Although the statutes may lead to the hiring and retention of more ineffective teachers than a hypothetical alternative system would, the statutes do not address the assignment of teachers; instead, administrators—not the statutes—ultimately determine where teachers within a district are assigned to teach.  Critically, plaintiffs failed to show that the statutes themselves make any certain group of students more likely to be taught by ineffective teachers than any other group of students.


With no proper showing of a constitutional violation, the court is without power to strike down the challenged statutes.  The court’s job is merely to determine whether the statutes are constitutional, not if they are “a good idea.”  (McHugh v. Santa Monica Rent Control Bd.(1989) 49 Cal.3d 348, 388.)  Additionally, our review is limited to the particular constitutional challenge that plaintiffs decided to bring.  Plaintiffs brought a facial equal protection challenge, meaning they challenged the statutes themselves, not how the statutes are implemented in particular school districts.  Since plaintiffs did not demonstrate that the statutes violate equal protection on their face, the judgment cannot be affirmed.


Mendoza v. Roman Catholic Archbishop of LA (9th Cir. 14-55651 4/14/16) ADA Disparate Treatment


The panel affirmed the district court’s summary judgment in favor of the defendant in an employment discrimination action under the Americans with Disabilities Act.


The panel affirmed the district court’s summary judgment on claims of disability discrimination and disparate treatment. The panel stated that the Ninth Circuit’s ADA cases, requiring a plaintiff who alleges disparate treatment to show that a discriminatory reason more likely than not motivated the defendant, remain good law following EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028 (2015), a

Title VII case. The panel also affirmed the district court’s summary judgment on a reasonable accommodation claim.

Tibble v. Edison Int’l (9th Cir. 10-56406 4/13/16) ERISA


On remand from the United States Supreme Court, the panel affirmed the district court’s judgment, after a bench trial, in favor of an employer and its benefits plan administrator on claims of breach of fiduciary duty in the selection and retention of certain mutual funds for a benefit plan governed by ERISA.


The court of appeals had previously affirmed the district court’s holding that the plan beneficiaries’ claims regarding the selection of mutual funds in 1999 were time-barred. The Supreme Court vacated the court of appeals’ decision, observing that federal law imposes on fiduciaries an ongoing duty to monitor investments even absent a change in circumstances.


On remand, the panel held that the beneficiaries forfeited such ongoing-duty-to-monitor argument by failing to raise it either before the district court or in their initial appeal.


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