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Janus v. AFSME, Council 31 (US 16-1466 oral arg. transcript 2/26/18) Public Sector Agency Shop


Whether Abood v. Detroit Board of Education should be overruled and public-sector “agency shop” arrangements invalidated under the First Amendment.


Transcript of oral argument


Duggan v. Dept. of Defense (9th Cir. 16-73640 2/26/18) Whistleblower Protection Act


The panel denied a petition for review in an action brought by a senior auditor at the Defense Contract Audit Agency (“DCAA”) under the Whistleblower Protection Act against the Department of Defense, alleging that the Department took several adverse personnel actions against him in retaliation for his protected disclosures at the DCAA.


The panel held that substantial evidence supported the Merit Systems Protection Board’s ultimate determination that the DCAA’s personnel actions were not in retaliation for petitioner’s whistleblowing. Specifically, the panel assumed for purposes of its analysis that petitioner established a prima facie case that all seven of his communications were protected disclosures. The panel adopted the Federal Circuit’s test, outlined in Carr v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999), for determining whether the agency – the DCAA – carried its burden of proving by clear and convincing evidence that it would have taken the same personnel actions against petitioner in the absence of his protected disclosures.


The panel also held that the administrative law judge permissibly excluded disputed evidence.

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.


Cal Fire Local 2881 v. Public Employment Relations Bd. (CA3 C082532 1/26/18) Public Employment Relations Board


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.


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


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.


Muro v. Cornerstone Staffing Solutions (CA4/1 D070206 2/23/18) Arbitration/Class Waiver


Plaintiff Tony Muro entered into an employment contract with defendant Cornerstone Staffing Solutions, Inc. (Cornerstone).  The contract included a provision requiring that all disputes arising out of Muro's employment with Cornerstone to be resolved by arbitration.  It also incorporated a class action waiver provision.  In response to Muro's present action, which was styled as a proposed class action and alleged various Labor Code violations, Cornerstone moved to compel arbitration and dismiss the class claims.


Relying heavily on Garrido v. Air Liquide Industrial, U.S. LP (2015) 241 Cal.App.4th 833 (Garrido), the trial court concluded the contract was exempted from the operation of the Federal Arbitration Act (FAA; 9 U.S.C. § 1 et seq.) and was instead governed by California law.  It further determined that the California Supreme Court's decision in Gentry v. Superior Court (2007) 42 Cal.4th 443 (Gentry) (overruled on other grounds in Iskarian v. CLS Tranportation, Los Angeles, LLC (2014) 59 Cal.4th 348) continued to provide the relevant framework for evaluating whether the class waiver provision in the contract was enforceable under California law.  After applying Gentry to the record here, the court found the class waiver provision of the contract unenforceable and denied the motion to compel arbitration.  Cornerstone appeals, but finding no error, we affirm.


Santomenno v. Transamerica LIC (9th Cir. 16-56418 2/23/18) ERISA


The panel (1) reversed the district court’s order denying defendants’ motion to dismiss an ERISA case alleging breach of fiduciary duties in connection with a retirement plan, and (2) vacated the district court’s subsequent class certification orders. The district court held that a plan service provider breached its fiduciary duties to plan beneficiaries first when negotiating with an employer about providing services to the plan and later when withdrawing predetermined fees from plan funds. An employer that forms an ERISA plan is a statutory fiduciary, and a plan service provider becomes a functional fiduciary under certain circumstances.


Joining other circuits, the panel held that a plan administrator is not an ERISA fiduciary when negotiating its compensation with a prospective customer. As to alleged breaches after the defendant became a plan service provider, the panel held that the defendant was not a fiduciary with respect to its receipt of revenue sharing payments from investment managers because the payments were fully disclosed before the provider agreements were signed and did not come from plan assets. Agreeing with other circuits, the panel held that defendant also was not a fiduciary with respect to its withdrawal of preset fees from plan funds. The panel concluded that when a service provider’s definitively calculable and nondiscretionary compensation is clearly set forth in a contract with the fiduciary-employer, collection of fees out of plan funds in strict adherence to that contractual term is not a breach of the provider’s fiduciary duty.


The panel remanded with instructions to the district court to dismiss the complaint.


Digital Realty Trust, Inc. v. Somers (US 16–1276 2/21/18) Dodd-Frank Whistleblower Retaliation


Endeavoring to root out corporate fraud, Congress passed the Sarbanes-Oxley Act of 2002 (Sarbanes-Oxley) and the 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank). Both Acts shield whistleblowers from retaliation, but they differ in important respects. Sarbanes-Oxley applies to all “employees” who report misconduct to the Securities and Exchange Commission (SEC or Commission), any other federal agency, Congress, or an internal supervisor. 18 U. S. C. §1514A(a)(1). Dodd-Frank defines a “whistleblower” as “any individual who provides . . . information relating to a violation of the securities laws to the Commission, in a manner established, by rule or regulation, by the Commission.” 15 U. S. C. §78u– 6(a)(6). A whistleblower so defined is eligible for an award if original information provided to the SEC leads to a successful enforcement action. §78u–6(b)–(g). And he or she is protected from retaliation in three situations, see §78u–6(h)(1)(A)(i)–(iii), including for “making disclosures that are required or protected under” Sarbanes-Oxley or other specified laws, §78u–6(h)(1)(A)(iii). Sarbanes-Oxley’s anti-retaliation provision contains an administrative-exhaustion requirement and a 180-day administrative complaint-filing deadline, see 18 U. S. C. §1514A(b)(1)(A), (2)(D), whereas Dodd-Frank permits a whistleblower to sue an employer directly in federal district court, with a default six-year limitation period, see §78u–6(h)(1)(B)(i), (iii)(I)(aa).


The SEC’s regulations implementing the Dodd-Frank provision contain two discrete whistleblower definitions. For purposes of the award program, Rule 21F–2 requires a whistleblower to “provide the Commission with information” relating to possible securities-law violations. 17 CFR §240.21F–2(a)(1). For purposes of the anti-retaliation protections, however, the Rule does not require SEC reporting. See §240.21F–2(b)(1)(i)–(ii).


Respondent Paul Somers alleges that petitioner Digital Realty Trust, Inc. (Digital Realty) terminated his employment shortly after he reported to senior management suspected securities-law violations by the company. Somers filed suit, alleging, inter alia, a claim of whistleblower retaliation under Dodd-Frank. Digital Realty moved to dismiss that claim on the ground that Somers was not a whistleblower under §78u–6(h) because he did not alert the SEC prior to his termination. The District Court denied the motion, and the Ninth Circuit affirmed. The Court of Appeals concluded that §78u–6(h) does not necessitate recourse to the SEC prior to gaining “whistleblower” status, and it accorded deference to the SEC’s regulation under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837.


Held: Dodd-Frank’s anti-retaliation provision does not extend to an individual, like Somers, who has not reported a violation of the securities laws to the SEC. Pp. 9–19.


(a) A statute’s explicit definition must be followed, even if it varies from a term’s ordinary meaning. , 553 U. S. 124, 130. Section 78u–6(a) instructs that the statute’s definition of “whistleblower” “shall apply” “[i]n this section,” that is, throughout §78u–6. The Court must therefore interpret the term “whistleblower” in §78u–6(h), the anti-retaliation provision, in accordance with that definition.


The whistleblower definition operates in conjunction with the three clauses of §78u–6(h)(1)(A) to spell out the provision’s scope. The definition first describes who is eligible for protection—namely, a “whistleblower” who provides pertinent information “to the Commission.” §78u–6(a)(6). The three clauses then describe what conduct, when engaged in by a “whistleblower,” is shielded from employment discrimination. An individual who meets both measures may invoke Dodd-Frank’s protections. But an individual who falls outside the protected category of “whistleblowers” is ineligible to seek redress under the statute, regardless of the conduct in which that individual engages. This reading is reinforced by another whistleblower protection provision in Dodd-Frank, see 12 U. S. C. §5567(b), which imposes no requirement that information be conveyed to a government agency. Pp. 9–11.


(b) The Court’s understanding is corroborated by Dodd-Frank’s purpose and design. The core objective of Dodd-Frank’s whistleblower program is to aid the Commission’s enforcement efforts by “motivat[ing] people who know of securities law violations to tell the SEC.” S. Rep. No. 111–176, p. 38 (emphasis added). To that end, Congress provided monetary awards to whistleblowers who furnish actionable information to the Commission. Congress also complemented the financial incentives for SEC reporting by heightening protection against retaliation. Pp. 11–12.


(c) Somers and the Solicitor General contend that Dodd-Frank’s “whistleblower” definition applies only to the statute’s award program and not, as the definition plainly states, to its anti-retaliation provision. Their concerns do not support a departure from the statutory text. Pp. 12–18.


(1) They claim that the Court’s reading would vitiate the protections of clause (iii) for whistleblowers who make disclosures to persons and entities other than the SEC. See §78u–6(h)(1)(A)(iii). But the plain-text reading of the statute leaves the third clause with substantial meaning by protecting a whistleblower who reports misconduct both to the SEC and to another entity, but suffers retaliation because of the latter, non-SEC, disclosure. Pp. 13–15.


(2) Nor would the Court’s reading jettison protections for auditors, attorneys, and other employees who are required to report information within the company before making external disclosures. Such employees would be shielded as soon as they also provide relevant information to the Commission. And Congress may well have considered adequate the safeguards already afforded to such employees by Sarbanes-Oxley. Pp. 15–16.


(3) Applying the “whistleblower” definition as written, Somers and the Solicitor General further protest, will allow “identical misconduct” to “go punished or not based on the happenstance of a separate report” to the SEC. Brief for Respondent 37–38. But it is understandable that the statute’s retaliation protections, like its financial rewards, would be reserved for employees who have done what Dodd-Frank seeks to achieve by reporting information about unlawful activity to the SEC. P. 16.


(4) The Solicitor General observes that the statute contains no apparent requirement of a “temporal or topical connection between the violation reported to the Commission and the internal disclosure for which the employee suffers retaliation.” Brief for United States as Amicus Curiae 25. The Court need not dwell on related hypotheticals, which veer far from the case at hand. Pp. 16–18.


(5) Finally, the interpretation adopted here would not undermine clause (ii) of §78u–6(h)(1)(A), which prohibits retaliation against a whistleblower for “initiating, testifying in, or assisting in any investigation or . . . action of the Commission based upon” information conveyed to the SEC by a whistleblower in accordance with the statute. The statute delegates authority to the Commission to establish the “manner” in which a whistleblower may provide information to the SEC. §78u–6(a)(6). Nothing prevents the Commission from enumerating additional means of SEC reporting, including through testimony protected by clause (ii). P. 18.


(d) Because “Congress has directly spoken to the precise question at issue,” Chevron, 467 U. S., at 842, deference is not accorded to the contrary view advanced by the SEC in Rule 21F–2. Pp. 18–19.


850 F. 3d 1045, reversed and remanded.


GINSBURG, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. SOTOMAYOR, J., filed a concurring opinion, in which BREYER, J., joined. THOMAS, J., filed an opinion concurring in part and concurring in the judgment, in which ALITO and GORSUCH, JJ., joined.


CNH Industrial N.V. v. Reese (US 17–515 per curium 2/20/18) Lifetime Vesting/Collective Bargaining

Three Terms ago, this Court’s decision in M&G Polymers USA, LLC v. Tackett, 574 U. S. ___ (2015), held that the Court of Appeals for the Sixth Circuit was required to interpret collective-bargaining agreements according to “ordinary principles of contract law.” Id., at ___ (slip op., at 1). Before Tackett, the Sixth Circuit applied a series of “Yard-Man inferences,” stemming from its decision in International Union, United Auto, Aerospace, & Agricultural Implement Workers of Am. v. Yard-Man, Inc., 716 F. 2d 1476 (1983). In accord with the Yard-Man inferences, courts presumed, in a variety of circumstances, that collective-bargaining agreements vested retiree benefits for life. See Tackett, 574 U. S., at ___–___ (slip op., at 7– 10). But Tackett “reject[ed]” these inferences “as inconsistent with ordinary principles of contract law.” Id., at ___ (slip op., at 14).


In this case, the Sixth Circuit held that the same Yard-Man inferences it once used to presume lifetime vesting can now be used to render a collective-bargaining agreement ambiguous as a matter of law, thus allowing courts to consult extrinsic evidence about lifetime vesting. 854 F. 3d 877, 882–883 (2017). This analysis cannot be squared with Tackett. A contract is not ambiguous unless it is subject to more than one reasonable interpretation, and the Yard-Man inferences cannot generate a reasonable interpretation because they are not “ordinary principles of contract law,” Tackett, supra, at ___ (slip op., at 14). Because the Sixth Circuit’s analysis is “Yard-Man re-born, re-built, and re-purposed for new adventures,” 854 F. 3d, at 891 (Sutton, J., dissenting), we reverse.


Hurley v. California Dept. of Parks and Recreation (CA4/1 D070098 2/21/18) Sexual Orientation Discrimination/Information Practices Act


Plaintiff Delane Hurley appeals a judgment in her action against defendants California Department of Parks and Recreation (DPR) and Leda Seals (together Defendants) that alleged, inter alia, causes of action for sexual orientation discrimination, sex discrimination, sexual harassment, retaliation, and failure to prevent discrimination, harassment, and retaliation, all in violation of the Fair Employment and Housing Act (FEHA; Gov. Code, § 12900 et seq.), and a cause of action for violation of the Information Practices Act (IPA; Civ. Code, § 1798 et seq.) and additionally alleged causes of action against Seals only for intentional infliction of emotional distress (IIED) and negligent infliction of emotional distress (NIED).  Following trial, the jury returned verdicts in favor of Defendants on the FEHA causes of action, against Defendants on the IPA cause of action, and against Seals on the IIED and NIED causes of action.  The jury awarded Hurley $19,200 for past economic damages and $19,200 for past noneconomic losses against both Defendants, and $28,800 in punitive damages against Seals only.  The court denied Defendants' motions for judgment notwithstanding the verdict (JNOV).  On appeal, Hurley contends the trial court erred by excluding evidence that was relevant to her FEHA causes of action.


DPR and Seals filed appeals challenging the judgment against them on the IPA cause of action and the trial court's denial of their JNOV motions.  In its appeal, DPR contends:  (1) there is insufficient evidence to support the finding it violated the IPA; and (2) the litigation privilege under section 47, subdivision (b), barred the IPA cause of action against it.  In her appeal, Seals contends:  (1) there is insufficient evidence to support the finding she violated the IPA; (2) the litigation privilege barred the IPA cause of action against her; (3) the IPA cause of action was alleged under, and the jury was instructed on, a statute (i.e., § 1798.45) that was inapplicable to her; (4) there is insufficient evidence to support the findings against her on the IIED and NIED causes of action; (5) the workers' compensation exclusivity doctrine barred the IIED and NIED causes of action against her; and (6) the punitive damages award against her must be reversed for, inter alia, instructional error and insufficiency of the evidence to support it.


Based on our reasoning below, we affirm the judgment, except for the award of economic damages against DPR, and modify the judgment accordingly.


Terris v. Co. of Santa Barbara (CA2/6 B268849A 2/16/18) Exhaustion of Administrative Remedies/Costs Award to Defendant


Campbell v. Regents of University of California (2005) 35 Cal.4th 311 holds that public employees must pursue appropriate internal administrative remedies before filing a civil action against their employer.  Labor Code section 244 does not require a litigant to exhaust administrative remedies before bringing a civil action.   Here we hold section 244 applies only to claims before the Labor Commissioner.  It has no effect on the Campbell rule.


Plaintiff Shawn Terris appeals a summary judgment in favor of her former employer, defendant County of Santa Barbara (County), in her wrongful termination action.  We conclude, among other things, that:  1) Terris did not exhaust her administrative remedies on her claims that the County terminated her job to discriminate against her in violation of sections 1101, 1102, and 1102.5; [[2) there are no triable issues of fact on Terris’s claim that she was terminated because of her sexual orientation (Gov. Code, § 12940, subd. (a), Fair Employment and Housing Act (FEHA));]] but 3) the trial court erred by awarding the County costs on the FEHA cause of action.  We affirm in part and reverse in part.


Perez v. City of Roseville (9th Cir. 15-16430 2/9/18) Sex Discrimination/Right to Privacy & Intimate Association/Due Process


The panel (1) reversed the district court’s summary judgment in favor of the defendants on a former probationary police officer’s claim of violation of her rights to privacy and intimate association and (2) affirmed the district court’s summary judgment on the former officer’s due process and gender discrimination claims.


The officer was discharged after an internal affairs investigation into her romantic relationship with a fellow officer. She claimed, pursuant to 42 U.S.C. § 1983, that her termination violated her constitutional rights to privacy and intimate association because it was impermissibly based in part on disapproval of her private, off-duty sexual conduct. Disagreeing with the Fifth and Tenth Circuits, the panel held that the constitutional guarantees of privacy and free association prohibit the State from taking adverse employment action on the basis of private sexual conduct unless it demonstrates that such conduct negatively affects on-the-job performance or violates a constitutionally permissible, narrowly tailored regulation. Because a genuine factual dispute existed as to whether the defendants terminated the officer at least in part on the basis of her extramarital affair, the panel concluded that she put forth sufficient evidence to survive summary judgment. Moreover, the rights of privacy and intimate association were clearly established such that any reasonable official would have been on notice that, viewing the facts in the light most favorable to her, the officer’s termination was unconstitutional. The panel therefore reversed the district court’s grant of qualified immunity on the privacy claim and remanded that claim for further proceedings.


The panel affirmed the district court’s summary judgment on the officer’s due process claim because any due process rights she might have had were not clearly established at the time of the challenged action. Therefore, the defendants were entitled to qualified immunity on that claim.


The panel affirmed the district court’s summary judgment on the officer’s sex discrimination claim because the evidence, taken in the light most favorable to her, indicated that the defendants’ disapproval of her extramarital affair, rather than gender discrimination, was the cause of her termination.


Concurring, Judge Tashima disagreed with much of the majority’s reasoning but agreed with its decision to reverse the district court’s grant of summary judgment to the defendants on the officer’s Fourteenth Amendment privacy claim. Judge Tashima concurred on the basis that the defendants’ reasons for firing the officer all arose in such short order after the internal affairs review that a reasonable inference could be drawn that they may have been pretextual. He disagreed with the majority’s analysis of the significance of the deposition testimony of the police chief and the statements of subordinate officers.

Duran v. U.S. Bank Nat. Assn. (CA1/1 A148817M, filed 1/17/18, mod., rehg, den, 2/9/18) Wage & Hour/Class Certification


It is ordered that the published opinion filed herein on January 17, 2018, be modified as follows:


At the end of the sentence that begins at the bottom of page 23 and ends at the top of page 24 with the words “Bell, supra, 115 Cal.App.4th 715,” add the following footnote number 16:

We note that we have scoured the appellate record in vain to locate plaintiffs’ margin of error calculations.  Factual matters that are not part of the record will not be considered on appeal and should not be referred to in a party’s brief.  (Cal. Rules of Court, rule 8.204(a)(2)(C); Banning v. Newdow (2004) 119 Cal.App.4th 438, 453, fn. 6.)  This rule applies to matters referenced at any point in the brief, not just in the statement of facts.  (Lona v. Citibank, N.A. (2001) 202 Cal.App.4th 89, 96, fn. 2; see also Regents of University of California v. Sheily (2004) 122 Cal.App.4th 824, 826–827, fn. 1 [“[i]t is not the task of the reviewing court to search the record for evidence that supports the party’s statement; it is for the party to cite the court to those references”].)


The following footnote will be renumbered as footnote 17.


The sentence that follows the new footnote, which reads, “However, the margins of error are artificially low because they are based on the total hours worked, and not overtime hours,” is deleted. 


The following sentence is revised slightly, to now read, “However, it is the comparison of the two surveys that reveals the inconsistency, irrespective of whether each survey is internally consistent within itself.”  Following this edited sentence, a new sentence is added, which will read:  “Again, there is a difference of over nine hours between the two surveys’ weekly overtime estimates.”


            This modification does not change the judgment.


            The petition for rehearing is denied.


Solus Industrial Innovations, LLC v. Superior Court (SC S222314 2/8/18) Preemption/Workplace Safety


The Orange County District Attorney brought an action for civil penalties under this state’s unfair competition law (UCL; Bus. & Prof. Code, § 17200) and fair advertising law (FAL; id., § 17500) against an employer.  The action alleged the employer violated workplace safety standards established by the state occupational safety and health law (Cal/OSHA; Lab. Code, § 6300 et seq.) and attendant regulations.  The employer contended, and the Court of Appeal concluded, that the district attorney’s action was preempted by the federal Occupational Safety and Health Act of 1970 (federal OSH Act; 29 U.S.C. § 651 et seq.). 


For the reasons set forth below, we conclude that the federal act does not preempt unfair competition and consumer protection claims based on workplace safety and health violations when, as in California, there is a state plan approved by the federal Secretary of Labor.  The district attorney’s use of UCL and FAL causes of action does not encroach on a field fully occupied by federal law, nor does it stand as an obstacle to the accomplishment of the federal objective of ensuring a nationwide minimum standard of workplace protection.  In addition, the federal act’s structure and language do not reflect a clear purpose of Congress to preempt such claims.  Therefore, we reverse the judgment of the Court of Appeal.


Mora v. Webcor Construction, L.P. (CA1/5 A148264 2/5/18)  LMRA/Union Vacation Trust Fund


California Labor Code section 226, subdivision (a) (Section 226(a)), requires employers to provide employees wage statements itemizing, among other things, all wages earned, including the hours worked and applicable rates of pay.  Plaintiff and appellant Steven Mora (appellant) contends defendant and respondent Webcor Construction, L.P. (respondent) violated Section 226(a) by failing to list the hours and hourly rate associated with a payment described as “Union Vacation” on his wage statements.  It is undisputed the amounts were payments to a union vacation trust fund authorized by the Labor Management Relations Act of 1947 (LMRA), also known as the Taft–Hartley Act (29 U.S.C. § 141 et seq.).  The trial court sustained respondent’s demurrer without leave to amend and we affirm, concluding the payments are not within the scope of Section 226(a).


Bill Signed by Governor


  • AB 403 by Assemblymember Melissa Melendez (R-Lake Elsinore) – Legislature: Legislative Employee Whistleblower Protection Act.


Newton v. Parker Drilling Mgmt. Servs. (9th Cir. 15-56352 2/5/18) Wage & Hour/Drilling Platforms/Outer Continental Shelf Lands Act

The panel vacated the district court’s dismissal on the pleadings of California wage and hour claims brought by workers employed on drilling platforms fixed on the Outer Continental Shelf.


The Outer Continental Shelf Lands Act provides that the laws of the adjacent state are to apply to drilling platforms fixed to the seabed of the Outer Continental Shelf as long as state law is “applicable” and “not inconsistent” with federal law. The panel held that California’s minimum wage and overtime laws are not inconsistent with the Fair Labor Standards Act, which establishes a national floor under which wage protections cannot drop. The panel therefore vacated the dismissal of these claims.


In addition, the panel vacated the dismissal of claims brought pursuant to California’s meal period, final pay, and pay stub laws, and instructed the district court to determine on remand whether these laws are “not inconsistent” with existing federal law. The panel also vacated claims under California’s Private Attorney General Act and Unfair Competition Law, and it remanded the case for further proceedings.

Alameda County Deputy etc. v. Alameda County Employees' etc. (CA1/4 A141913M, filed 1/8/18, mod. 2/5/18) Pension Reform Act/Vested Rights


It is ordered that the opinion filed January 8, 2018, be modified as follows:

  1.  The last line on the first page of the opinion is amended to read “Public Employee Pension Reform Act of 2013 and related legislation (interchangeably, PEPRA, the Pension Reform Act, or AB 197) in an”.

  2. In footnote 5 on page 10 of the opinion and footnote 9 on page 16 of the opinion the words “were employed” are replaced by the words “became members.”

  3. Footnote 7 is moved to immediately after footnote 6 on page 12 of the opinion, such that the last line of the first paragraph of section “B.” is amended read: “seq.; Stats. 2012, ch. 296.)

  4. Footnote 7 is amended to read as follows:


“At the same time the Legislature passed AB 340, it also enacted Assembly Bill 197 (AB 197), with the declared purpose to exclude from CERL’s definition of compensation earnable “ ‘any compensation determined by the [county retirement] board to have been paid to enhance a member’s retirement benefit.’ ”  (Marin, supra, 2 Cal.App.5th at p. 683, fn. omitted.)  For purposes of our analysis, we see no material difference between the versions of section 31461 codified by AB 340 and AB 197.  (See Marin, supra, 2 Cal.App.5th at p. 684, fn. 5 [noting that AB 197 adds subdivision (c) to section 31461]; see also footnote 17, post [finding AB 197’s addition of “payable” to the concept of “earned” in subdivision (b) to be of little significance in this litigation].)  For purposes of our opinion, we will follow the custom of referring to both legislative enactments as AB 197, and—as stated above—that designation, along with the Pension Reform Act and PEPRA, will all be used interchangeably.”


  1. The spelling of “pre-PERPA” is corrected to “pre-PEPRA” on page 18 (six lines from the bottom of the page) and page 45 (three lines from the bottom of the page).

  2. On page 61 (three lines from the bottom of the page) the spelling of “AECRA” and “MECRA” are corrected to “ACERA” and “MCERA,” respectively.


There is no change in the judgment.


Kenny v. Wal-Mart Stores (9th Cir. 17-56809 2/1/18) CAFA/Removal


The panel vacated the district court’s order remanding a putative class action to California state court because the district court exceeded its statutory authority in remanding sua sponte based on a non-jurisdictional defect, and because Wal-Mart did not waive its right to remove the action to federal court; and remanded to the district court for further proceedings.


Plaintiff filed the putative class action in California state court, challenging Wal-Mart’s policy requiring employees who have suffered workplace-related injuries to submit to drug and/or urine testing. Wal-Mart removed the case to federal court based on jurisdiction under the Class Action Fairness Act (“CAFA”). The district court sua sponte remanded the action to state court, concluding that Wal-Mart had waived its right to remove the case by filing a demurrer in response to plaintiff’s First Amended Complaint (“FAC”) in state court.


The panel held that the district court lacked authority under 28 U.S.C. § 1447(c) to remand sua sponte based on a non-jurisdictional defect.


The panel noted that a defendant “may waive the right to remove to federal court where, after it is apparent that the case is removable, the defendant takes actions in state court that manifest his or her intent to have the matter adjudicated there, and to abandon his or her right to a federal forum.” Resolution Tr. Corp. v. Bayside Developers, 43 F.3d 1230, 1240 (9th Cir. 1994). The panel held that the district court erred in concluding that Wal-Mart waived its right to remove the case when the FAC did not reveal a basis for removal pursuant to CAFA. The panel also held that Wal-Mart’s choice to file a demurrer, rather than another form of responsive pleading, to plaintiff’s indeterminate FAC did not amount to a waiver of its right to remove. The panel further held that where Wal-Mart removed the case before plaintiff opposed the demurrer and before any hearing was held, clearly Wal-Mart did not manifest an intent to litigate in state court.


Candelore v. Tinder, Inc. (CA2/3 B270172 1/29/18) Unruh Civil Rights Act/UCL/Age-Based Pricing


Tinder, Inc. owns and operates the smartphone-based dating application, Tinder. The original app began, and is still offered, as a free online dating service. It presents users with photos of potential dates. The user can swipe right to express approval, or swipe left to express disapproval. In March 2015, Tinder released a premium service called “Tinder Plus,” which allows users to access additional features of the app for a monthly fee.


Plaintiff, Allan Candelore, commenced this action on behalf of himself and a putative class of California consumers who were over 30 years old when they subscribed to Tinder Plus. The complaint alleges that Tinder charges consumers who are age 30 and older $19.99 per month for Tinder Plus, while it charges consumers under the age of 30 only $9.99 or $14.99 per month for the Tinder Plus features. Candelore sued for age discrimination in violation of the Unruh Civil Rights Act (Civ. Code, § 51; the Unruh Act or the Act) and the Unfair Competition Law (Bus. & Prof. Code, § 17200 et seq.; the UCL). The trial court sustained Tinder’s demurrer without leave to amend, ruling in part that Tinder’s age-based pricing practice did not constitute arbitrary or invidious discrimination because it was reasonably based on market testing showing “younger users” are “more budget constrained” than older users, “and need a lower price to pull the trigger.”


But, as discussed below, the Unruh Act provides broad protection against arbitrary age-based price discrimination. No matter what Tinder’s market research may have shown about the younger users’ relative income and willingness to pay for the service, as a group, as compared to the older cohort, some individuals will not fit the mold. Some older consumers will be “more budget constrained” and less willing to pay than some in the younger group. We conclude the discriminatory pricing model, as alleged, violates the Unruh Act and the UCL to the extent it employs an arbitrary, class-based, generalization about older users’ incomes as a basis for charging them more than younger users. Because nothing in the complaint suggests there is a strong public policy that justifies the alleged discriminatory pricing, the trial court erred in sustaining the demurrer. Accordingly, we swipe left, and reverse.


Eagle Point Educ. Ass’n v. Jackson Cty. (9th Cir. 15-35704, 15-35972 1/26/18) Teachers’ Strike/First Amendment


The panel affirmed the district court’s summary judgment and attorney’s fee award in favor of plaintiffs in their action brought under 42 U.S.C. § 1983 and state law challenging the policies of a public school which prohibited, among other things, picketing on school district property, and prohibited strikers from coming onto school grounds, even for reasons unrelated to an anticipated teachers’ strike.


The panel first rejected the school district’s assertion that the policies enacted by the district during a teacher’s strike should be viewed as “government speech” by the school district itself and therefore should not be judged as restrictions on the free speech rights of teachers or students. The panel stated that this argument reflected a fundamental misunderstanding of the government speech doctrine. The panel held that no reasonable observer would have misperceived the speech which the district sought to suppress—speech favoring the teachers’ side in the strike—as a position taken by the school district itself. The panel held that the government speech doctrine does not authorize the government’s suppression of contrary views.


The panel held that because the school district’s policies were not government speech but were instead restrictions on private speech, the First Amendment’s Free Speech Clause was implicated. Determining that the policies were neither reasonable nor viewpoint neutral, the panel held that they failed even the non-public forum test. The policies therefore violated plaintiffs’ First Amendment rights and their rights under the Oregon Constitution. The panel further held that the school district was liable for the action of its security officer who barred a student from the school parking lot because she had a sign on her car which supported the teachers. Because the panel affirmed the district court’s judgment, it also affirmed the award of attorney’s fees and costs to plaintiffs, as the prevailing parties.


Lampe v. Queen of the Valley Medical Center (CA1/4 A146588, filed 1/2/18, pub. ord. 1/23/18) Wage & Hour Class Certification


Appellants Michael Lampe and Karen McNair appeal the trial court’s order denying class certification of their wage and hour claims against Queen of the Valley Medical Center (QVMC).  The trial court concluded that individualized issues predominated and the claims could not be proven efficiently as a class.  We conclude substantial evidence supports the trial court’s findings and it did not abuse its discretion in denying class certification.  We affirm.


Arave v. Merrill Lynch, Pierce etc. (CA4/2 E061677M mod. & partial pub. ord. 1/23/18) FEHA Religious Discrimination/Wage & Hour


Plaintiff and appellant, J. Brent Arave, brought several claims under the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) against his former employers, Merrill Lynch, Pierce, Fenner & Smith, Inc. (Merrill Lynch), Bank of America (BoA), his supervisor Joseph Holsinger, and a human resources supervisor, Katherine Anderson (collectively, defendants).  He sought to recover damages caused by discrimination, harassment, and retaliation based on his membership in the Church of Jesus Christ of Latter-day Saints.  He also sought damages for nonpayment of wages (Lab. Code, § 201) and whistleblower retaliation (Lab. Code, § 1102.5).


After a five-week trial, the jury returned a verdict in favor of defendants on all counts that had survived summary judgment and dismissal.  The trial court denied Arave’s posttrial motions and awarded defendants, as prevailing parties, $54,545.18 in costs, $29,097.50 in expert witness fees, and $97,500 in attorney fees incurred defending against Arave’s wage claim.


Arave appeals the verdict and the award of fees and costs.  He maintains:


  1. The trial court made numerous evidentiary errors, which prejudiced Arave;

  2. Defense counsel committed prejudicial misconduct;

  3. The trial court’s bias deprived him of a fair trial;

  4. The trial court committed prejudicial error by instructing the jury certain evidence could not constitute harassment attributable to his employers;

  5. The jury’s verdict was not supported by substantial evidence because defendants conceded they subjected Arave to an adverse employment action;

  6. The trial court erred in denying Arave’s motion for a new trial;

  7. The trial court erred by awarding defendants $97,500 in attorney fees on Arave’s wage claim despite not finding the claim frivolous;

  8. The trial court erred in awarding defendants costs and expert witness fees on Arave’s FEHA claims despite finding the claims nonfrivolous; and

  9. The trial court erred in granting summary judgment in favor of individual defendant Katherine Anderson on Arave’s harassment claim.


Defendants cross-appeal, contending the trial court abused its discretion when it determined Arave’s FEHA claims were not frivolous and denied them attorney fees on those claims.


We affirm the trial court in all respects but two.  We conclude the trial court erred by awarding $83,642.68 in costs and expert witness fees though it found Arave’s FEHA claims were nonfrivolous, and therefore reverse the order making the award.  However, because a portion of the award may be attributable to Arave’s wage claim, we will remand for the trial court to make that apportionment, as appropriate.  We also conclude the trial court erred by awarding $97,500 in attorney fees on the wage claim without determining whether that claim was frivolous.  We will remand for the trial court to make that determination.


Khan v. Dunn-Edwards Corp. (CA2/8 B270382, filed 1/4/18, pub. ord. 1/22/18) PAGA Notice


This lawsuit is brought pursuant to Labor Code section 2698, the Labor Code Private Attorneys General Act of 2004 (PAGA).  We affirm the summary judgment because plaintiff Hamid H. Khan failed to provide adequate notice of his claim to the relevant agency prior to bringing the lawsuit against his former employer Dunn-Edwards Corporation (Dunn-Edwards).


Duran v. U.S. Bank Nat'l. Ass'n. (CA1/1 A148817 1/17/18) Wage & Hour/Class Certification


In our second encounter with this class action case, plaintiffs Samuel Duran and Matt Fitzsimmons appeal from the trial court’s order denying class certification.  This case is a wage and hour class action challenging whether defendant U.S. Bank National Association (Bank) had properly classified its business banking officers (BBOs) as exempt employees under the outside salesperson exemption.  This exemption applies to employees who spend more than 50 percent of their workday engaged in sales activities outside their employer’s place of business.  The trial court concluded plaintiffs failed to demonstrate that the case is manageable as a class action.  We affirm.


Encino Motorcars, LLC v. Navarro (US 16-1362 oral argument transcript 1/17/18) FLSA Overtime Exemption


Whether service advisors at car dealerships are exempt under 29 U.S.C. § 213(b)(10)(A) from the Fair Labor Standards Act's overtime-pay requirements.


Bustos v. Global P.E.T (CA4/2 E065869, filed 12/22/17, pub. ord. 1/16/18) Harris Defense Verdict/Attorneys’ Fees


Plaintiff and appellant William Bustos brought this disability discrimination action against his former employers, defendants and respondents Global P.E.T., Inc. and Global Plastics, Inc. (collectively, Global).  A jury found that Bustos’s physical condition or perceived physical condition was “a substantial motivating reason” for his termination, but nevertheless returned defense verdicts on each of his claims.  After trial, Bustos sought an award of attorney fees under the Fair Employment and Housing Act, Government Code sections 12900 et seq., 12965 (FEHA), citing the holding of Harris v. City of Santa Monica (2013) 56 Cal.4th 203 (Harris)  that “a plaintiff subject to an adverse employment decision in which discrimination was a substantial motivating factor may be eligible for reasonable attorney’s fees and costs expended for the purpose of redressing, preventing, or deterring that discrimination,” even if the discrimination did not “result in compensable injury” for that particular plaintiff.  (Id. at p. 235.)


In this appeal, Bustos challenges the trial court’s ruling denying his motion for attorney fees.  We affirm.


Melendez v. San Francisco Baseball Associates (SC S245607/A149482 review granted 1/10/18) Wage Claim/CBO/LMRA § 301


Petition for review after the Court of Appeal reversed an order denying a motion to compel arbitration in a civil action. The court limited review to the following issue: Does plaintiffs' statutory wage claim under Labor Code section 201 require the interpretation of a collective bargaining agreement, and is it therefore preempted by section 301 of the Labor Management Relations Act? The request for an order directing depublication of the opinion is denied. Votes: Cantil-Sakauye, C.J., Chin, Corrigan, Liu, Cuéllar and Kruger, JJ. Review granted/brief due.



Court of Appeal Decision


ABM Industries Overtime Cases (CA1/4 A132387, filed 12/11/17, pub. ord. 1/10/18) Wage & Hour/Class Certification


Respondent ABM Industries, Inc. (collectively with related respondents, ABM) is a large facility services company with employees throughout the United States, including thousands of janitorial workers at hundreds of job sites in California.  Appellants (referred to herein as plaintiffs) are present or former ABM janitorial employees.  On behalf of themselves and similarly situated Californians, plaintiffs filed their complaint in this coordinated proceeding in September 2007, alleging that ABM violated California labor laws by, among other things, failing to properly record and compensate employees for meal breaks; requiring employees to work split shifts without appropriate compensation; and failing to ensure that employees were reimbursed for expenses incurred when traveling between work sites.  In June 2010, plaintiffs moved for class certification of a general class of ABM workers and various subclasses of such workers who had been subjected to particular wage and hour violations.  After briefing and argument, the trial court found plaintiffs’ expert evidence inadmissible and indicated orally that it was denying the class certification motion.  In response, plaintiffs filed a motion pursuant to Code of Civil Procedure section 473, subdivision (b) (the 473(b) motion), attempting to supplement the evidence previously provided with respect to the qualifications of their expert.  By order dated June 29, 2011, the trial court denied plaintiffs’ 473(b) motion.  Thereafter, on September 1, 2011, the trial court issued its written order, formally denying plaintiffs’ class certification motion.  We conclude that the trial court’s wholesale exclusion of plaintiffs’ expert evidence in this case was error.  We further determine that the trial court’s refusal to grant class certification on these facts was an abuse of discretion, and therefore reverse.


Labor & Workforce Development Agency v. Superior Court (CA3 C083180 1/8/18) LWDA Communications on Minimum Wage Legislation/Public Records Act


This case involves the delicate balancing of open government principles enshrined in the California Public Records Act (Public Records Act) (Gov. Code, § 6250 et seq.) and the need for confidentiality in the deliberative process of drafting legislation as safeguarded by the deliberative process privilege under section 6255 and as attorney work product under Code of Civil Procedure section 2018.030.  A Public Records Act request in this case was made on behalf of Fowler Packing Company, Inc. (Fowler) and Gerawan Farming, Inc. (Gerawan) in response to the 2015 enactment of Assembly Bill 1513 (AB 1513) codified in Labor Code section 226.2 (Stats. 2015, ch. 754, § 5 (2015 - 2016 Reg. Sess.) eff. Jan. 1, 2016).  AB 1513 addresses the issue of minimum wages for employees paid on a piece-rate basis (i.e., paid per task) and includes safe-harbor provisions that provide employers with an affirmative defense against wage and hour claims based on piece-work compensation so long as back pay is timely made.  (Lab. Code, § 226, subds. (b)-(f).)  However, the safe-harbor provisions contained carve-outs that place the safe-harbor provisions out of reach for several California companies including Fowler and Gerawan.  (Lab. Code, § 226.2, subds. (g)(2) & (g)(5).)  The Public Records Act request sought in pertinent part: “Any and all public records referring or relating to communications between the California Labor & Workforce Development Agency, its officers, and its staff and the United Farm Workers of America regarding AB 1513;” “Any and all public records referring or relating to the statutory carve out for any ‘claim asserted in a court pleading filed prior to March 1, 2014,’ as codified in AB 1513 section 226.2(g)(2)(A);” and, “Any and all public records referring or relating to AB 1513” and Fowler and Gerawan.  The responsive documents would necessarily include the identities of parties who communicated confidentially with the California Labor and Workforce Development Agency (Agency) that took the lead in formulating the policies enacted in AB 1513.


The trial court ordered the Agency to produce “an index identifying the author, recipient (if any), general subject matter of the document, and the nature of the exemption claimed” to justify withholding information in response to a request for documents under the Public Records Act.  The Agency petitioned for writ relief in this court to prevent disclosure of the identities of the parties with whom the Agency communicated confidentially in formulating AB 1513, the substance of these communications, and communications with the Office of Legislative Counsel (Legislative Counsel) during the drafting process.  We granted a stay and issued an alternative writ to allow us to consider the matter.  Based on the California Supreme Court’s guidance in Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325 (Times Mirror), we conclude the trial court’s order errs in requiring disclosure of matters protected by the deliberative process and attorney work product privileges.  Accordingly, we direct the trial court to vacate its order directing the Agency to produce an index disclosing the author, recipient, and general subject matter of documents generated relating to the process of drafting AB 1513.

Alameda County Dep. Sheriff's Assn. v. Alameda County Emp. Ret. Assn. (CA 1/4 A141913 1/8/18) Pension Reform Act/Vested Rights


This consolidated action arises out of the tension between two undeniably valid, and yet fundamentally opposed, public interests:  the interest of the government in maintaining the flexibility to alter statutes to conform to current needs and the interest of public employees in a stable and predictable pension, earned through years of public service.  On September 12, 2012, Governor Brown—faced with a statewide crisis involving the significant underfunding of public pension systems—signed into law the Public Employee Pension Reform Act of 2013 (PEPRA or the Pension Reform Act) in an attempt to curb what were seen as pervasive abuses in public pension systems throughout California, including those governed by the County Employees Retirement Law of 1937 (CERL), Gov. Code, § 31450 et seq. (§ 7522 et seq.; Stats. 2012, chs. 296 & 297; see Marin Assn. of Public Employees v. Marin County Employees’ Retirement Assn. (2016) 2 Cal.App.5th 674, 680-683 (Marin), review granted Nov. 22, 2016, S237460.)  Various public employees and public employee organizations in Alameda, Contra Costa, and Merced Counties (collectively, the Three Counties) subsequently challenged the constitutionality of PEPRA as it applied to certain CERL plan members who were hired prior to PEPRA’s effective date (legacy members).  We conclude that the trial court’s detailed analysis of PEPRA’s effects on the pensions of legacy members was incorrect in certain respects and also improperly failed to include a necessary vested rights analysis.  We therefore affirm in part, reverse in part, and remand this matter for further proceedings in accordance with this opinion.



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