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Reverse chronological e-mail alerts prepared pro bono for the California Lawyers Association (formerly State Bar of California) Labor & Employment Law Section since 2007, covering California, 9th Circuit and US Supreme Court decisions, and new laws signed by Governor. To subscribe, contact LaborLaw@CLA.Legal.


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Intel Corp. Investment v. Sulyma (US 18-1116 oral arg. Transcript 12/4/19)  ERISA


Whether the three-year limitations period in Section 413(2) of the Employee Retirement Income Security Act, which runs from “the earliest date on which the plaintiff had actual knowledge of the breach or violation,” bars suit when all the relevant information was disclosed to the plaintiff by the defendants more than three years before the plaintiff filed the complaint, but the plaintiff chose not to read or could not recall having read the information.


Oral Argument Transcript

9th Circuit Decision


Lehman v. Nelson (9th Cir. 18-35321 12/3/19) ERISA


The panel filed (1) an order granting a request for publication, withdrawing the panel’s prior memorandum disposition, and directing the filing of an opinion; and (2) an opinion affirming the district court’s grant of summary judgment in favor of plaintiffs in an ERISA class action concerning pension contributions.


After the Trustees of the IBEW Pacific Coast Pension Fund learned that the Fund would soon enter “critical status” under the Pension Protection Act of 2006, they twice amended the Plan. Amendments 14 and 24 had the effect of withholding at least $1.00 per hour from all employer contributions.


Plaintiff Richard Lehman, an electrician, filed a class action against the Trustees under ERISA. Plaintiff was a member of a different local union pension fund. When he was temporarily employed outside his home fund, his employer contributed to the local fund in the place where the work was performed. Plaintiff’s home fund and the Pacific Cost Fund were signatories to the Electrical Industry Pension Reciprocal Agreement, under which “travelers” like plaintiff could elect to have employer contributions from other jurisdictions electronically transferred to their designated home pension fund.


In a prior appeal, Lehman I, the court held that the Trustees could not keep the $1.00 hourly withholdings they had made pursuant to Amendment 14, rather than including these withholdings in the transfer payments made to travelers’ home funds, on the Trustees’ theory that the withholdings were not “contributions” within the meaning of the Reciprocal Agreement. The court affirmed the district court’s grant of summary judgment in favor of plaintiff and award of damages to the class for all contributions withheld under Amendment 14. The court remanded for the district court to address whether the class could recover contributions withheld under Amendment 24.


On remand, the district court again granted summary judgment in favor of the class, determining that Amendment 24 violated the plain language of Article 5 of the Pacific Coast Pension Plan, which mandated that the Plan collect and transfer all contributions received on behalf of travelers. Affirming, the panel held that the Trustee’s interpretation of Amendment 24 with regard to travelers’ contributions was unavailing.

Gonzalez v. City of Los Angeles (CA2/3 B287125 12/3/19) POBRA


The City of Los Angeles (City) and Chief of Police Charlie Beck (Chief Beck) appeal from trial court judgments granting petitions for writ of mandate filed by former Los Angeles Police Department (LAPD) sergeants Caesar Gonzalez and Kosal Uch.  The trial court ordered the City to vacate Gonzalez’s and Uch’s terminations and provide them with the opportunity for an administrative appeal.  In this consolidated appeal, we conclude the City’s provision of a hearing before the Board of Rights was the administrative appeal Government Code section 3304, subdivision (b) requires. We reverse the judgments.


Assn. for L.A. Deputy Sheriffs v. County of L.A. (CA2/2 B289597 12/2/19) Breach of Labor Agreement/Exhaustion of Administrative Remedies


The Association for Los Angeles Deputy Sheriffs (ALADS) appeals from a judgment following the trial court’s ruling sustaining a demurrer to ALADS’s complaint without leave to amend.  ALADS sued respondent County of Los Angeles (County) concerning the County’s alleged breach of a labor agreement.  The trial court sustained the County’s demurrer on the sole ground that ALADS failed to exhaust the administrative remedies available under the labor agreement before filing suit.


We reverse that ruling.  ALADS’s complaint alleges that the County failed to comply with compensation provisions described in a November 2015 memorandum of understanding between ALADS and the County (the MOU).  Those provisions required the County to match compensation increases given to other County safety employee unions.  Thus, the issues that ALADS raises in this action and the relief that it seeks apply to all its members.


On the other hand, the grievance procedures under the MOU are only available to individual employees and are not binding on any other parties.  Because those procedures would require each of the thousands of individual ALADS members to pursue a grievance through arbitration to obtain the relief that ALADS seeks in this lawsuit, they are not adequate.  The inadequacy of available administrative procedures is a well-established exception to the rule that a party must exhaust administrative remedies before seeking judicial relief.


The trial court ruled only on the exhaustion issue.  The County raised a number of other grounds in support of its demurrer and argues those grounds again on appeal as alternative grounds to affirm the trial court’s ruling.  One of those grounds is that ALADS should have first pursued the claims in its fourth, fifth, and eighth causes of action alleging violations of the Meyers-Milias-Brown Act (MMBA; Gov. Code, § 3500 et seq.), in proceedings before the Los Angeles County Employee Relations Commission (ERCOM).  We agree.  ERCOM has exclusive initial jurisdiction over such claims, and ALADS’s argument that ERCOM could not provide binding relief is insufficient to excuse its obligation to first pursue those claims administratively.


With respect to the County’s other alternative arguments, we hold that:  (1) ALADS’s seventh, ninth, and tenth causes of action for declaratory relief no longer address any actual controversy in light of our ruling on the inadequacy of administrative remedies under the MOU, and the trial court’s ruling should therefore be affirmed for those causes of action; (2) ALADS should be given leave to amend its third cause of action to add as defendants those County officials necessary to seek writ relief; and (3) ALADS’s second cause of action for breach of contract and its eleventh cause of action for alleged breach of the covenant of good faith and fair dealing adequately state claims for relief.


Accordingly, we will reverse the trial court’s ruling in part, affirm in part on alternative grounds, and remand for further proceedings on ALADS’s complaint.  ALADS’s first, second, sixth, and eleventh causes of action may proceed; ALADS will be given leave to amend its third cause of action; ALADS’s fourth, fifth, and eighth causes of action will be struck without prejudice pending ALADS’s exhaustion of administrative remedies concerning those claims with ERCOM; and ALADS’s seventh, ninth, and tenth causes of action will be struck because they do not address a current controversy in light of our holdings.


Carroll v. City and County of S.F. (CA1/4 A155208M, filed 10/31/19, mod. 11/27/19)  FEHA/Exhaustion of Administrative Remedies




            It is ordered that the opinion filed herein on October 31, 2019, be modified as follows:


  1. On page 11, the last sentence of the second paragraph, beginning, “Questions of retroactivity and remedies, . . . ” is changed to:  


“Such questions, however, are not before this court, and Long’s reference to the continuing violation doctrine is not controlling here.”


  1. On page 17, the last sentence of footnote 13, beginning, “Plaintiff thus cannot recover . . . . ” is changed to:  


“Plaintiff thus cannot bring timely claims for relief under Richards or Alch for violations going back to her retirement in 2000.”


            The request for clarification is granted and addressed by the above modification.


            There is no change in judgment.



Plaintiff Joyce Carroll appeals the trial court’s entry of a stipulated dismissal with prejudice of her age discrimination complaint under the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.).  The dismissal followed the court’s order sustaining defendants’ demurrer on the ground that plaintiff did not file a complaint with the Department of Fair Employment and Housing (DFEH) within one year of the date the alleged unlawful employment practice occurred.  (§ 12960, subd. (d).)  We conclude that plaintiff’s disparate treatment and disparate impact claims were timely with respect to the allegedly discriminatory disability retirement payments plaintiff received within one year of the date on which she filed her DFEH complaint.  We therefore reverse the judgment.


City of Anaheim v. Bosler (CA3 C087417 11/25/19) Former RDA’s Retirement Costs


Nearly eight years after the Great Dissolution (see City of Pasadena v. Cohen (2014) 228 Cal.App.4th 1461, 1463), in which the political branches of our state government abolished redevelopment agencies (RDA’s) because of abuses improperly diverting tax increment (City of Tracy v. Cohen (2016) 3 Cal.App.5th 852, 855 (City of Tracy)), we continue to encounter schemes in which cities and counties seek to avoid the intended effects of this enactment (given our distinction as the designated appellate forum for these disputes by virtue of Health & Saf. Code, § 34168). This latest appeal involves an effort to foist the pension and retiree healthcare costs (hereafter “retirement costs”) for city employees who performed redevelopment-related work onto the successor agency to the now-abolished Anaheim Redevelopment Agency (Anaheim RDA).


Plaintiff City of Anaheim, in its own right and as the successor agency to the Anaheim RDA (collectively “City” unless we need to distinguish the two), and John Woodhead, who works for both entities, brought this 2017 petition for a writ of mandate.  The petition sought to overturn the determination that an agreement between the City of Anaheim and the Anaheim RDA to reimburse the City of Anaheim for the retirement costs of its employees who worked for the Anaheim RDA was not an enforceable obligation of the Anaheim RDA, and thus payments to the City of Anaheim for this purpose from the successor agency were not permissible.  As defendants, the petition identified the director of the Department of Finance (Department), presently Keely Bosler, in her official capacity; the Department of Finance (a redundant defendant, as we repeatedly point out (e.g., City of Brentwood v. Campbell (2015) 237 Cal.App.4th 488, 492, fn. 3 (City of Brentwood)); the auditor-controller for Orange County (a neutral stakeholder (ibid.)); and the oversight board that supervises the operations of the successor agency (County of Sonoma, supra, 235 Cal.App.4th at p. 45, fn. 2).  (Neither of the latter parties appears on appeal; only the former answered the petition.)  The trial court entered judgment in favor of the Department, after issuing a lengthy and cogent ruling.


On appeal, petitioners reiterate their claims, which focus on their interpretation of what is a “legally enforceable” required payment from the Anaheim RDA (§ 34171, subd. (d)(1)(C); hereafter § 34171(d)(1)(C)), the purported unconstitutional impairment of contractual rights, and estoppel.  We shall affirm.


County of Ventura v. Public Employment Relations Bd. (CA2/6 B294825 11/21/19) PERB/Joint Employer


Service Employment International Union, Local 721 (SEIU) sought to represent nonphysician employees of satellite medical clinics (Clinics) owned by private corporations but under contract with Ventura County Medical Center (VCMC) to provide medical services.  The County of Ventura (the County) refused to process SEIU’s petition to represent the employees (Clinic employees) on the ground that private corporations and not the County were the sole employers.  SEIU filed an unfair practice charge with the Public Employment Relations Board (PERB), alleging the County’s refusal to process its petition violated the Meyers-Milias-Brown Act (MMBA) (Gov. Code, § 3500 et seq.), which governs employer-employee relations between public agencies and public employees.  An administrative law judge (ALJ) found in favor of the County and dismissed the unfair practice charge.  PERB reversed the ALJ’s decision and found the County is a single employer or, in the alternative, a joint employer of Clinic employees.


The County filed this petition for a writ of extraordinary relief from PERB’s decision (§ 3509.5, subds. (a) & (b)).  It argues PERB lacked jurisdiction because Clinic employees were private employees, and not County employees.  We affirm.

Global Protein Products, Inc. v. Le (CA6 H044628 11/20/19) Trade Secrets/Dissolution of Stipulated Judgment


Appellants Kevin K. Le and West Coast AG, LLC (WCA) appeal from the trial court’s denial of their renewed motion to dissolve a stipulated permanent injunction filed pursuant to Code of Civil Procedure section 1008, subdivision (b).  The stipulated permanent injunction prohibits appellants from acquiring, disclosing, or using a trade secret developed by respondent Global Protein Products, Inc. (GPP).  According to appellants, dissolution of the stipulated permanent injunction under section 533 is required because recently discovered evidence demonstrates that GPP does not have a valid trade secret.  Thus, appellants claim that the underlying basis for the stipulated permanent injunction no longer exists.


Although an order denying a renewed motion under section 1008, subdivision (b) is not appealable, we exercise our discretion to treat appellants’ appeal as a petition for writ of mandate and deny the constructive petition.  The trial court reasonably concluded that appellants did not meet the requirements of section 533.  Thus, the trial court did not abuse its discretion when it denied appellants’ renewed motion.


Natarajan v. Dignity Health (CA3 C085906, filed 10/22/19, pub. ord. 11/20/19) Staff Membership Privileges


Plaintiff Sundar Natarajan filed a petition for a writ of administrative mandate to overturn the November 2015 revocation of his staff membership and privileges at St. Joseph’s Medical Center of Stockton (St. Joseph’s), the fictitious name of an entity that defendant Dignity Health owned and operated.  In September 2017, the trial court denied the petition and entered judgment for defendant.


Plaintiff does not contest the sufficiency of the evidence in support of the internal decision; rather, his challenge rests on claims of a denial of procedural due process, and seeks to nullify any preclusive effects the internal decision might have on any subsequent action in court (see, e.g., Knickerbocker v. City of Stockton (1988) 199 Cal.App.3d 235, 243-244), although he does not explain how he would be entitled to this requested relief without a remand for further internal proceedings.


He argues the circumstances of the hearing officer’s relationship with defendant gave rise to an unacceptable risk of bias from a pecuniary interest in future employment with defendant, and the internal decision revoking his staff membership and privileges did not apply objective standards. We shall affirm the judgment.


Silbaugh v. Chao (9th Cir. 18-35756 11/14/19) Title VII Wrongful Termination/Relation Back


The panel reversed the district court’s dismissal of plaintiff’s action alleging that the Federal Aviation Administration (“FAA”) wrongfully terminated her employment.


Plaintiff filed her action in the district court within the 30-day limitations period set by statute, see 5 U.S.C. § 7703(b)(2), but she mistakenly named the FAA and her former supervisor as the defendants. Because plaintiff’s suit alleged claims of discrimination under Title VII of the Civil Rights Act of 1964, plaintiff was required to name as the defendant the head of the executive agency to which the FAA belongs – Elaine Chao, the Secretary of Transportation. After the 30-day statute of limitations passed, the FAA moved to dismiss on the ground that plaintiff had named the wrong defendant. Plaintiff filed an amended complaint to substitute Secretary Chao as the defendant. The district court dismissed because it found that the amended complaint did not relate back to the date of the original complaint under the requirements of Fed. R. Civ. P. 15(c), and plaintiff’s action was barred by the statute of limitations.


The panel held that plaintiff was entitled to relation back under Fed. R. Civ. P. 15(c)(2). Specifically, the panel held that the application of Rule 15(c)(2) to the facts of this case was straightforward. The panel further held that the district court reached the opposite conclusion by adopting an overly technical interpretation of the term “process” as used in Rule 15(c)(2). The panel held that the notice-giving function of “process” under Rule 15(c)(2) was accomplished whether or not the summons accompanying the complaint was signed by the clerk of court.


In addition, the panel held that the requirements for relation back were met here where both the United States Attorney and the Attorney General were sufficiently notified of plaintiff’s action within the 90-day period prescribed by Fed. R. Civ. P. 4(m). The panel noted that the record did not reveal whether plaintiff also sent a copy of the valid summons and the amended complaint to Secretary Chao. Because plaintiff properly served both the U.S. Attorney and the Attorney General, she was entitled to additional time to mail a copy of the summons and amended complaint to Secretary Chao if necessary. Fed. R. Civ. P. 4(i)(4)(A). The panel remanded for the district court to address that issue in the first instance.


Comcast Corp. v. Nat. Assn. of African Am Owned Media and Ent. Studios Net., Inc. (US 18-1171 oral argument transcript 11/13/19) Section 1981 Race Discrimination


Does a claim of race discrimination under 42 U.S.C. § 1981 fail in the absence of but-for causation?


Oral argument transcript

9th Cir. decision


Glynn v. Super. Ct. (CA2/4 B296735 11/13/19)  FEHA Disability Discrimination/Mistaken Application of Company Policy


A temporary corporate benefits staffer mistakenly thinks an employee has transitioned from short term disability (STD) to long term disability (LTD) and is unable to work with or without an accommodation. She fires him. The terminated employee tries to correct the misunderstandings, but for months the corporation ignores his entreaties. Does this constitute direct evidence of disability discrimination under the Fair Employment and Housing Act (FEHA) (Government Code § 12900 et seq.)? For the reasons described below, we decide it does, and therefore reverse the portion of the trial court’s order granting the corporation’s motion for summary adjudication of the employee’s disability discrimination cause of action. We also reverse the portions of the order granting summary adjudication of the employee’s retaliation, failure to prevent discrimination, and wrongful termination causes of action. We publish to clarify that even a legitimate company policy, if mistakenly applied, may engender FEHA disability discrimination liability.


Williams v. Impax Laboratories, Inc. (CA1/1 A155479 11/8/19) Appealability/Death Knell Doctrine


Plaintiff Emielou Williams filed a class complaint against her former employer, Impax Laboratories, Inc., alleging violations of Labor Code provisions governing wages and hours.  The trial court granted Impax’s motion to strike the class allegations, ruling that Williams was not an adequate class representative.  The court granted her leave to amend the complaint to add another named plaintiff, but instead of doing so she filed an amended complaint reiterating the stricken class allegations.  Relying on its prior order, the court again struck those allegations. 


Williams now appeals from the second order, claiming the trial court erred by concluding she is not an adequate class representative.  She also claims the order must be reversed because the court thwarted her from pursuing discovery of the class list, which she needed to name another class representative.  We agree with Impax, however, that the order is not appealable under the death knell doctrine.  This doctrine authorizes an interlocutory appeal of the first, but only the first, order in a case that extinguishes all of a plaintiff’s class claims.  As a result, we do not address the merits of Williams’s contentions and instead dismiss the appeal.


O'Grady v. Merchant Exchange Productions, Inc. (CA1/2 A148513 10/31/19) Service Charge/Gratuity


An employer is in the business of providing a banquet facility at which food and beverages are served.  The employer adds a mandatory, and substantial, “service charge” to the contract for every banquet.  The employer distributes some of the service charge to managerial employees who do not serve food and beverages at the banquet.  An employee filed a putative class action to force the employer to treat the service charge as a gratuity and distribute all of it to employees who do serve food and beverages at the banquet.  The employer took the position that two Court of Appeal opinions hold, as a matter of law under stare decisis, that a service charge can never be a gratuity.  The trial court agreed, and sustained the employer’s general demurrer without leave to amend.

The issue presented here is whether the “service charge” may be a “gratuity” that Labor Code section 351 requires to go only to the non-managerial employees involved with the actual serving of the food and beverages.  We conclude there is no categorical prohibition why what is called a service charge cannot also meet the statutory definition of a gratuity, and thus we reverse.


Bakersfield College v. Cal. Community College Athletic Assn. (CA3 C085099 10/31/19) Arbitration/Unconscionability


In this case, we are asked to determine the enforceability of an arbitration agreement under the law of unconscionability.  “Unconscionability consists of both procedural and substantive elements.  [Citation.]  Procedural unconscionability ‘addresses the circumstances of contract negotiation and formation, focusing on oppression or surprise due to unequal bargaining power.’  [Citation.]  ‘Substantive unconscionability pertains to the fairness of an agreement’s actual terms and to assessments of whether they are overly harsh or one-sided.’  [Citation.]  Both elements must be present for a court to refuse to enforce an arbitration agreement.  [Citation.]  However, the elements do not need to be present in the same degree and are evaluated on a ‘ “ ‘sliding scale.’ ” ’  [Citation.]  ‘ “ ‘[T]he more substantively oppressive the contract term, the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable, and vice versa.’ ” ’  [Citation.]  ‘The ultimate issue in every case is whether the terms of the contract are sufficiently unfair, in view of all relevant circumstances, that a court should withhold enforcement.’ ”  (Magno v. The College Network, Inc. (2016) 1 Cal.App.5th 277, 284-285.)


Defendant California Community College Athletic Association (Athletic Association) administers intercollegiate athletics for the California community college system.  The parties agree that, as a condition of participating in the intercollegiate football league, plaintiff Bakersfield College (the College) agreed to be bound by the Athletic Association’s bylaws and constitution, including a provision requiring the College to resolve any sanctions and penalty disputes by binding arbitration.  Instead of proceeding through binding arbitration to challenge the sanctions and penalty decisions issued by the Athletic Association and codefendant the Southern California Football Association (the Football Association) (collectively defendants) against the College, the College and coplaintiffs Jeffrey Chudy and the Kern Community College District (collectively plaintiffs) elected to file civil litigation.  Plaintiffs argued they were excused from pursuing binding arbitration because the arbitration provision was unconscionable. 

The trial court said the “issue [wa]s close,” but ultimately, after severing the one-sided attorney fees subsections, found the arbitration provision was not unconscionable.  The trial court, therefore, found plaintiffs’ litigation was barred by the failure to exhaust their administrative remedies. 


We agree with the trial court that this was a close case but conclude the arbitration provision was unconscionable.  Accordingly, we reverse.


Lee v. Kim (CA2/1 B287923, filed 10/2/19, pub. ord. 10/31/19) ADA/Unruh/Anti-SLAPP


These consolidated appeals arise out of two separate orders under the anti-SLAPP statute addressing special motions to strike malicious prosecution claims. Our chronicle begins when attorney Jong Jun Kim commenced a lawsuit against businessman Tag Seog Lee in federal court for alleged violations of the Americans with Disabilities Act (ADA; 42 U.S.C. § 12101 et seq.) and the Unruh Civil Rights Act (Unruh Act; Civ. Code, § 51 et seq.).  Kim alleged his client, who used a wheelchair for mobility, was denied access to Lee’s business Grip Smart Printing, Inc. (Grip Smart) because the adjacent parking lot did not have a handicapped accessible spot.

After the complaint was filed, Lee’s attorney provided information suggesting the lawsuit was meritless because Grip Smart was a corporate tenant on a commercial lease, and the landlord (and not Grip Smart or any other tenant) controlled the parking lot.  Lee’s attorney followed up shortly thereafter by providing a copy of the lease that verified his representations.  Kim then voluntarily dropped the claims against Lee in favor of pursuing Grip Smart as well as its landlord.  The federal district court eventually entered summary judgment in Grip Smart’s favor, finding the alleged injury to Kim’s client was not traceable to Grip Smart’s conduct because, as a tenant, Grip Smart had no control over the parking lot.  The landlord settled for a modest $3,000 payment without any agreement to remedy the alleged accessibility issues.


Lee thereafter sued Kim for malicious prosecution.  Kim responded with a special motion to strike pursuant to Code of Civil Procedure section 425.16. The trial court (the Honorable Dalila Corral Lyons) granted Kim’s motion, finding that Kim’s filing of the underlying lawsuit was protected conduct, and Lee had failed to establish a probability of prevailing on his malicious prosecution claim.  After this ruling, Grip Smart filed a separate action against Kim for malicious prosecution, which was assigned to a different judicial officer (the Honorable Richard E. Rico).  Kim again filed a special motion to strike.  This time, the trial court denied the motion, determining that Grip Smart had established a probability of prevailing on its malicious prosecution claim.


Lee now appeals the grant of Kim’s special motion to strike Lee’s claim.  Kim appeals the denial of his special motion to strike Grip Smart’s claim.  Finding no reversible error in either ruling, we affirm.


Davis v. TWC Dealer Group, Inc. (CA1/2 A155030 10/30/19) Arbitration


This is an appeal from an order denying a petition to compel arbitration [in an employment case].  We easily affirm the order.  And we publish, to also affirm—and remind the profession of—the importance of candor toward the court.


Stafford v. Attending Staff Assn. etc. (CA2/2 B288008 10/30/19) Suspension of Clinical Privileges


The Attending Staff Association of LAC + USC Medical Center (Association) appeals from a judgment granting a writ of mandamus against it.  Respondent Novarro C. Stafford is a physician whose clinical privileges were terminated by the Association.  Stafford requested an administrative hearing.  The administrative process began, but the Association subsequently took the position that Stafford withdrew or abandoned his right to an administrative hearing through his communications and conduct and by filing an unsuccessful action in superior court.

Stafford filed a petition for a writ of mandate seeking an order directing the Association to complete Stafford’s administrative proceeding.  The trial court granted the petition.  We affirm.

The Association argues that, because Stafford filed an action in superior court before concluding the administrative appeal process, he forfeited his administrative remedy as a matter of law.  The argument misinterprets the doctrine of exhaustion of administrative remedies.  That doctrine precludes premature lawsuits; it does not mean that filing a premature lawsuit necessarily waives an administrative remedy.


The Association also makes the factual argument that Stafford withdrew his request for an administrative hearing.  The trial court found against the Association on that claim.  That finding is supported by substantial evidence, and we therefore must affirm.


Berroteran v. Superior Court (CA2/1 B296639 10/29/19) Admissibility of Former Employees’ Depositions


This case puts us in the unenviable position of disagreeing with our sister court as to the admissibility under Evidence Code section 1291, subdivision (a)(2) of former testimony.


Here, the challenged former testimony is from nine unavailable witnesses, who previously were deposed in other state and federal litigation.  The parties dispute whether real party in interest, Ford Motor Company (Ford), “had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which [it] has at the hearing.”  (§ 1291, subd. (a)(2), italics added.)  It is undisputed that petitioner Raul Berroteran II otherwise satisfied the statutory prerequisites for admission of the former testimony under section 1291. 


We conclude Ford had the right and opportunity to cross‑examine its employees and former employees with a similar motive and interest as it would have in the instant case.  Each case, including the present one, concerns Ford’s model 6.0-liter diesel engine, the engine’s alleged deficiencies, Ford’s alleged knowledge of those deficiencies, and Ford’s strategy regarding repairing the engines.  While a party’s motive and interest to cross-examine may potentially differ when the prior questioning occurs in a pre-trial deposition, Ford failed to demonstrate any such different motive or interest here. 


In reaching this conclusion, we disagree with Wahlgren v. Coleco Industries, Inc. (1984) 151 Cal.App.3d 543 (Wahlgren) to the extent it espouses a blanket proposition that a party has a different motive in examining a witness at a deposition than at trial.  Wahlgren assumed that deposition testimony is limited to discovery and has a “limited purpose and utility.”  (Id. at p. 546.)  These assumptions, however, are unsupported by legal authority, inconsistent with modern trials and the omnipresence of videotaped depositions during trial, and contrary to persuasive federal law interpreting an analogous hearsay exception. 


We grant Berroteran’s petition for writ of mandate and direct the trial court to enter a new order denying Ford’s motion in limine excluding the videotaped deposition testimony of nine of Ford’s employees and former employees.  We also direct the trial court to reconsider the admissibility of documentary evidence that the trial court may have excluded because it found the depositions inadmissible.


NLRB v. IAB Local 229 (9th Cir. 17-73210 10/28/19) NLRA


The panel granted the National Labor Relations Board’s petition for enforcement of its order entered against International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 229, enjoining Local 229 from committing violations of the National Labor Relations Act (“NLRA”).


The Board affirmed the administrative law judge’s finding that Local 229 had violated Section 8(b)(4)(i)(B) of the NLRA by inducing or encouraging Commercial Metals Company’s neutral employees to strike or stop work for the unlawful secondary purpose of furthering Local 229’s primary labor dispute with Western Concrete Pumping. The panel rejected Local 229’s contention that the Board’s application of the NLRA to its conduct punished expressive activity protected by the First Amendment. Specifically, the panel refused to extend the Supreme Court’s decision in Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015), and refused to apply strict scrutiny to the analysis of Section 8(b)(4)(i)(B).


The panel explained that Reed involved content-based restrictions in a municipal ordinance regulating signs directed toward the general public, whereas this case involved communications addressed to neutral employees within the tightly regulated contours of labor negotiations.


The panel held that the Board reasonably rejected Local 229’s contention that Section 8(c) of the NLRA protected its communications because the Supreme Court has concluded that Section 8(c) does not immunize activities that violate Section 8(b)(4).


The panel held that the Board properly rejected the challenges asserted by Local 229 under the Religious Freedom Restoration Act and under the Thirteenth Amendment to the United States Constitution.


Finally, the panel held that the language of the Board’s order adequately apprised Local 229 of its notice obligations.


McCormick v. Cal. Pub. Employees' Retirement System (CA1/1 A154236 10/25/19) Public Employee Disability Retirement


Plaintiff Cari McCormick worked as an appraiser for Lake County.  She developed certain medical symptoms, including pain, fatigue, and dizziness, that seemed to be caused by her office environment.  After her employer denied her request to work in a different location, she applied for disability retirement.  Adopting the decision of an administrative law judge (ALJ), the Board of Administration (Board) of the California Public Employees’ Retirement System (CalPERS) denied her application on the basis that her condition did not prevent her from performing her job duties at a theoretical different location.  McCormick filed a petition for a writ of administrative mandate, which the trial court denied. 


On appeal, McCormick claims that the trial court’s decision must be reversed because it applied the wrong legal standard.  We agree.  We hold that employees are eligible for CalPERS disability retirement under Government Code section 21156 when, due to a disability, they can no longer perform their usual duties at the only location where their employer will allow them to work, even if they might be able to perform those duties at a theoretical different location.  We therefore reverse and remand for further proceedings.


Rojas v. FAA (9th Cir. 17-17349 10/22/19) Traffic Controller Hiring/FOIA


The panel affirmed in part, reversed in part, and vacated in part the district court’s summary judgment in favor of the Federal Aviation Administration in a lawsuit brought by Jorge Rojas, an applicant for an air traffic control position, alleging that the Administration violated the Freedom of Information Act and the Privacy Act by failing to produce response documents related to the Biographical Assessment, a screening tool introduced by the Administration in 2014 as part of the air traffic controller hiring process.


Suspecting that the Federal Aviation Administration was engaging in discriminatory hiring practices and that an agency employee was engaged in misconduct, Rojas sought to obtain information about the Administration’s change in hiring practices, its use of the Biographical Assessment, and the cheating that had reportedly taken place during the applicant testing process. The panel held that the Biographical Assessment’s minimum passing score and Rojas’s own personal score were exempt from disclosure under the Freedom of Information Act, 5 U.S.C. § 552(b)(2) (Exemption 2) and the Privacy Act, 5 U.S.C. § 552a(k)(6) (Exemption (k)(6)).


The panel held that the Freedom of Information Act’s Exemption 2 applied to internal rules and practices exclusively connected with “the selection, placement, and training of employees,” including “hiring and firing.” The panel concluded that the Administration’s rules and practices for scoring tests relating to the selection of employees, including its rules and practices regarding the minimum passing score and the score for a particular test, qualified under Exemption 2. The panel further concluded that test scores were part of the “testing or examination material” used to determine individual qualifications for purposes of the Privacy Act’s Exemption (k)(6). Finally, the panel held that Rojas did not offer any evidence contradicting the Administration’s evidence that applicants could use their obtained test scores to undermine the integrity of the Biographical Assessment and compromise the objectivity or fairness of the testing or examination process.


The panel next considered whether the personal, nonFederal Aviation Administration email addresses of certain Administration employees were exempt from disclosure under Freedom of Information Act, Exemption 6. Rojas alleged that the addresses were necessary to determine which employees were involved in an alleged conspiracy to help certain applicants or to understand the information flow regarding the alleged conspiracy within the agency. The panel held that where Federal Aviation Administration employees used personal email addresses to receive information relating to the Administration’s change in selecting air traffic controllers, Rojas had carried his burden of showing that the Administration employees’ privacy interest in their personal email addresses was outweighed by the “robust interest of citizens’ right to know what their government is up to” in making the hiring practice changes it did. The panel concluded that the Federal Aviation Administration could satisfy its obligation under the Freedom of Information Act by identifying the email recipients by name, instead of revealing the recipients’ personal email addresses.


Turning to the question whether 202 emails withheld by the Federal Aviation Administration were “agency records” subject to the Freedom of Information Act’s disclosure requirements, the panel noted that the district court provided little explanation for its grant of summary judgment in favor of the Federal Aviation Administration on this issue. Because in Freedom of Information cases, a district court must provide sufficiently detailed disclosure of the factual and legal basis for its decision, the panel vacated the district court’s order granting summary judgment with respect to the 202 withheld emails and remanded to the district court to apply the second prong of the test set forth in Tax Analysts v. U.S. Dep’t of Justice, 845 F.2d 1060, 1069 (D.C. Cir. 1988), aff’d, 492 U.S. 136 (1989), consistent with the panel’s opinion.


Jimenez v. U.S. Continental Marketing, Inc. (CA4/1 D075532 10/17/19) FEHA Employer/Temporary-Staffing Agency


Elvia Velasco Jimenez asserted claims under the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) against her contracting employer U.S. Continental Marketing Inc. (USCM), a manufacturing company that negotiated with Jimenez's direct employer Ameritemps, Inc. (Ameritemps), a temporary-staffing agency, for her employment. Jimenez's claims required a threshold showing that USCM was her employer.  Disputing that assertion at trial, USCM framed the inquiry as a contest of relative influence between the direct and contracting employers, asking the jury during closing arguments, "Did [USCM] have control over plaintiff more than the temp agency?"  (Italics added.) The jury agreed with USCM and returned a special verdict finding that USCM was not Jimenez's employer.  Jimenez moved for a new trial, unsuccessfully, and judgment was entered in favor of USCM.  On appeal, Jimenez argues that there is insufficient evidence to support the special verdict finding and asks that we reverse the judgment.


To evaluate whether an entity is an employer for FEHA purposes, courts consider the totality of circumstances and analyze several factors, principal among them the extent of direction and control possessed and/or exercised by the employer over the employee.  (Vernon v. State of California (2004) 116 Cal.App.4th 114, 118 (Vernon).)  In the particular case of temporary-staffing, factors under the contractual control of the temporary-staffing agency (such as hiring, payment, benefits, and timesheets being handled by a temporary-staffing agency) are not given any weight in determining the employment relationship with respect to the contracting employer.  (See Bradley v. Department of Corrections & Rehab. (2008) 158 Cal.App.4th 1612, 1619 (Bradley).)  The inquiry with respect to the contracting employer is considered individually, not in relation to that of the direct employer.  (See ibid.)  There is no contest of relative influence as framed by USCM in its closing argument.


The facts relevant to the specific and narrow question presented here are not in dispute.  Just like in Bradley, the contracting employer here did not hire the temporary employee, pay her, provide her benefits, or track her time—all of which, according to USCM, amounts to substantial evidence in support of the jury's finding.  (See Bradley, supra, 158 Cal.App.4th at pp. 1623–1624.)  But because those factors are outside the scope of the terms and conditions of the temporary employee's employment with the contracting employer, they do not bear on the issue.  As the Bradley court helpfully explained, "[t]he key is that liability is predicated on the allegations of harassment or discrimination involving the terms, conditions, or privileges of employment under the control of the employer, and that the employment relationship exists for FEHA purposes within the context of the control retained."  (Id. at p. 1629.)


Undisputed evidence demonstrates that USCM exercised considerable direction and control over Jimenez under the terms, conditions, and privileges of her employment.  (See Bradley, supra, 158 Cal.App.4th at 1629.)  And although the parties contest the characterization of Jimenez's termination, the appropriate inquiry in the temporary-staffing context is whether the contracting employer terminated the employee's services for the contracting employer (which USCM did), not whether the contracting employer terminated her employment with her direct employer (which USCM did not do).  (See ibid.) 


Accordingly, without expressing any opinion as to the ultimate merit of Jimenez's claims, we reverse the judgment as to three of those claims and, for reasons explained below, affirm the judgment as to one.  As to the three remaining, we remand for a new trial at which the jury should be instructed that USCM was Jimenez's employer.


Walden v. State of Nevada (9th Cir. 18-15691 10/16/19) FLSA Removal/11th Amendment Sovereign Immunity


In an interlocutory appeal in a case in which a group of correctional officers allege, inter alia, violations of the Fair Labor Standards Act (FLSA), the panel affirmed the district court’s holding that the State waived its Eleventh Amendment sovereign immunity as to the plaintiffs’ FLSA claims when it removed the case from state court to federal court.


Extending the holding of Embury v. King, 361 F.3d 562 (9th Cir. 2004), the panel held that a State that removes a case to federal court waives its immunity from suit on all federal law claims in the case, including those federal-law claims that Congress failed to apply to the states through unequivocal and valid abrogation of their Eleventh Amendment immunity.




  • AB 5 by Assemblymember Lorena Gonzalez (D-San Diego) – Worker status: employees and independent contractors. A signing message can be found here.

  • AB 9 by Assemblymember Eloise Gómez Reyes (D-Grand Terrace) – Employment discrimination: limitation of actions.

  • AB 34 by Assemblymember James Ramos (D-Highland) – Pupils: bullying and harassment prevention information.

  • AB 51 by Assemblymember Lorena Gonzalez (D-San Diego) – Employment discrimination: enforcement.

  • AB 61 by Assembymember Phil Ting (D-San Francisco) - Gun violence restraining orders.

  • AB 118 by the Committee on Budget – State employment: State Bargaining Units 1, 2, 3, 4, 5, 7, 11, 13, 14, 15, 17, 20, and 21.

  • AB 170 by Assemblymember Lorena Gonzalez (D-San Diego) – Worker status: employees and independent contractors.

  • AB 203 by Assemblymember Rudy Salas (D-Bakersfield) – Occupational safety and health: Valley Fever.

  • AB 241 by Assemblymember Sydney Kamlager-Dove (D-Los Angeles) – Implicit bias: medical profession continuing education: requirements.

  • AB 242 by Assemblymember Sydney Kamlager-Dove (D-Los Angeles) – Courts: attorneys: implicit bias: training.

  • AB 267 by Assemblymember Kansen Chu (D-San Jose) – Employment of infants: entertainment industry.

  • AB 332 by Assemblymember Tom Lackey (R-Palmdale) – Peace officers: training.

  • AB 330 by Assemblymember Jesse Gabriel (D-Encino) – Appointed legal counsel in civil cases.

  • AB 333 by Assemblymember Susan Talamantes Eggman (D-Stockton) – Whistleblower protection: county patients’ rights advocates.

  • AB 355 by Assemblymember Tom Daly (D-Anaheim) – Public Employment Relations Board: Orange County Transportation Authority.

  • AB 378, Monique Limόn (D-Santa Barbara) Childcare: family childcare providers: bargaining representative

  • AB 381 by Assemblymember Eloise Gómez Reyes (D-Grand Terrace) – Postsecondary education: sexual assault and sexual violence prevention training: intimate partner and dating violence.

  • AB 406 Monique Limόn (D-Santa Barbara) – Disability compensation: paid family leave: application in non-English languages.

  • AB 525 by Assemblymember Luz Rivas (D-Arleta) – Teacher credentialing.

  • AB 538 by Assemblymember Marc Berman (D-Palo Alto) – Sexual assault: medical evidentiary examinations and reporting.

  • AB 543 by Assemblymember Christy Smith (D-Santa Clarita) – Education: sexual harassment: written policy: posters.

  • AB 547 by Assemblymember Lorena Gonzalez (D-San Diego) – Janitorial workers: sexual violence and harassment prevention training.

  • AB 560 by Assemblymember Miguel Santiago (D-Los Angeles) – Public utilities: unionization.

  • AB 595 by Assemblymember Jose Medina (D-Riverside) – Community colleges: apprenticeship programs.

  • AB 640 by Assemblymember Jim Frazier (D-Discovery Bay) – Sex crimes: investigation and prosecution.

  • AB 644 by the Committee on Public Employment and Retirement – State teachers’ retirement: compensation.

  • AB 672 by Assemblymember Sabrina Cervantes (D-Riverside) – Public employees’ retirement: disability retirement: reinstatement.

  • AB 673 by Assemblymember Wendy Carrillo (D-Los Angeles) – Failure to pay wages: penalties.

  • AB 706 by Assemblymember Evan Low (D-Campbell) – Community colleges: academic employees.

  • AB 711 by Assemblymember David Chiu (D-San Francisco) – Pupil records: name and gender changes.

  • AB 749 by Assemblymember Mark Stone (D-Scotts Valley) – Settlement agreements: restraints in trade.

  • AB 800 by Assemblymember Kansen Chu (D-San Jose) – Civil actions: confidentiality.

  • AB 894 by Assemblymember Miguel Santiago (D-Los Angeles) – Attorney General: directors and employees: exemption from civil service.

  • AB 988 by Assemblymember Marc Berman (D-Palo Alto) – Teacher credentialing: out-of-state prepared teachers: education specialist credential.

  • AB 1019 by Assemblymember Jim Frazier (D-Discovery Bay) - Apprenticeship: developmentally disabled persons.

  • AB 1033 by Assemblymember Jim Cooper (D-Elk Grove) – State employment: new employees: information.

  • AB 1152 by Assemblymember Chris Holden (D-Pasadena) – Vital records.

  • AB 1116 by Assemblymember Tim Grayson (D-Concord) -- California Firefighter Peer Support and Crisis Referral; firefighters: peer support.

  • AB 1223 by Assemblymember Joaquin Arambula (D-Fresno) – Living organ donation.

  • AB 1320 by Assemblymember Adrin Nazarian (D-North Hollywood) – Public employee retirement systems: prohibited investments: Turkey.

  • AB 1349 by Assemblymember Jay Obernolte (R-Big Bear Lake) – Civil actions: discovery.

  • AB 1353 by Assemblymember Buffy Wicks (D-Oakland) – Classified employees: probationary period.

  • AB 1400 by Assemblymember Sydney Kamlager-Dove (D-Los Angeles) – Employment safety: firefighting equipment: mechanics.

  • AB 1452 by Assemblymember Patrick O’Donnell (D-Long Beach) – State teachers’ retirement.

  • AB 1510 by Assemblymember Eloise Gómez Reyes (D-Grand Terrace) – Sexual assault and other sexual misconduct: statutes of limitations on civil actions.

  • AB 1518 by Assemblymember Kansen Chu (D-San Jose) – Student athletes: contracts.

  • AB 1554 by Assemblymember Lorena Gonzalez (D-San Diego) – Employers: dependent care assistance program: notice to employees.

  • AB 1651 by Assemblymember Jose Medina (D-Riverside) – Licensed educational psychologists: supervision of associates and trainees.

  • AB 1607 by Assemblymember Tasha Boerner Horvath (D-Encinitas) – Gender discrimination: notification.

  • AB 1735 by Assemblymember Rebecca Bauer-Kahan (D-Orinda) – Evidence: privileges: human trafficking caseworker-victim privilege.

  • AB 1748 by Assemblymember Rob Bonta (D-Alameda) – California Family Rights Act: flight crews.

  • AB 1768 by Assemblymember Wendy Carrillo (D-Los Angeles) – Prevailing wage: public works.

  • AB 1805 by the Committee on Labor and Employment – Occupational safety and health.

  • AB 1820 by the Committee on Judiciary – Personal rights: civil liability and enforcement.

  • SB 17 by Senator Thomas Umberg (D-Santa Ana) – Civil discovery: sanctions.

  • SB 30 by Senator Scott Wiener (D-San Francisco) – Domestic partnership.

  • SB 41 by Senator Robert Hertzberg (D-Van Nuys) – Civil actions: damages.

  • SB 103 by the Committee on Budget and Fiscal Review – State employees: memorandum of understanding.

  • SB 142 by Senator Scott Wiener (D-San Francisco) – Employees: lactation accommodation.

  • SB 173 by Senator Bill Dodd (D-Napa) – CalFresh: postsecondary student eligibility: work-study.

  • SB 188, Mitchell. CROWN Act: Discrimination: hairstyles.

  • SB 206 by Senator Nancy Skinner (D-Berkeley) – Pay to Play Act, Collegiate athletics: student athlete compensation and representation.

  • SB 229 by Senator Robert Hertzberg (D-Van Nuys) – Discrimination: complaints: administrative review.

  • SB 271 by Senator Scott Wiener (D-San Francisco) – Employment: motion picture production workers.

  • SB 322 by Senator Steven Bradford (D-Gardena) – Health facilities: inspections: employee reporting.

  • SB 366 by Senator Ling Ling Chang (R-Diamond Bar) – Public postsecondary education: mandatory orientation for students.

  • SB 370 by Senator Thomas Umberg (D-Santa Ana) – Discovery: response to inspection demands.

  • SB 438 by Senator Robert Hertzberg (D-Van Nuys) –  Emergency medical services: dispatch.

  • SB 530 by Senator Cathleen Galgiani (D-Stockton) – Construction industry: discrimination and harassment prevention.

  • SB 534 by Senator Steven Bradford (D-Gardena) – Insurers: minority, women, LGBT, veteran, and disabled veteran business enterprises.

  • SB 542 by Senator Henry Stern (D-Canoga Park) – Trauma Treatment Act; workers’ compensation.

  • SB 544 by Senator Thomas Umberg (D-Santa Ana) – State Bar: admission: license: moral character review: mental health medical records.

  • SB 616 by Senator Bob Wieckowski (D-Fremont) – Enforcement of money judgments: exemptions.

  • SB 671 by Senator Robert Hertzberg (D-Van Nuys) – Employment: payment of wages: print shoot employees.

  • SB 688 by Senator Bill Monning (D-Carmel) – Failure to pay wages: penalties.

  • SB 698 by Senator Connie Leyva (D-Chino) – Employee wages: payment.

  • SB 707 by Senator Bob Wieckowski (D-Fremont) – Arbitration agreements: enforcement.

  • SB 778 by the Committee on Labor, Public Employment and Retirement – Employers: sexual harassment training: requirements.

  • SB 782 by the Committee on Labor, Public Employment and Retirement – Public employees’ and judges’ retirement: administration.



  • AB 23 by Assemblymember Autumn Burke (D-Inglewood) – Governor’s Office of Business and Economic Development: Business Workforce Coordination Unit. A veto message can be found here.

  • AB 171 by Assemblymember Lorena Gonzalez (D-San Diego) – Employment: sexual harassment. A veto message can be found here.

  • AB 314 by Assemblymember Rob Bonta (D-Alameda) – Public employment: labor relations: release time. A veto message can be found here.

  • AB 346 by Assemblymember Jim Cooper (D-Elk Grove) – Workers’ compensation: leaves of absence. A veto message can be found here.

  • AB 403 by Assemblymember Ash Kalra (D-San Jose) – Division of Labor Standards Enforcement: complaint. A veto message can be found here.

  • AB 520 by Assemblymember Ash Kalra (D-San Jose) – Public works: public subsidy. A veto message can be found here.

  • AB 589 by Assemblymember Lorena Gonzalez (D-San Diego) – Employment: unfair immigration-related practices. A veto message can be found here.

  • AB 625 by Assemblymember Ash Kalra (D-San Jose) – Service contracts: public transit: collection and transportation of solid waste: retention of employees. A veto message can be found here.

  • AB 1214 by Assemblymember Melissa Melendez (R-Lake Elsinore) – School employees: training: cardiopulmonary resuscitation. A veto message can be found here.

  • AB 1466 by Assemblymember Jacqui Irwin (D-Thousand Oaks) – Employee classification: professional classification: specified educational employees. A veto message can be found here.

  • AB 1478 by Assemblymember Wendy Carrillo (D-Los Angeles) – Employment discrimination. A veto message can be found here.

  • AB 1613 by Assemblymember Patrick O’Donnell (D-Long Beach) – Public works: prevailing wages. A veto message can be found here.

  • AB 1681 by Assemblymember Lorena Gonzalez (D-San Diego) – Public employees: collective bargaining: unit determinations. A veto message can be found here.

  • SB 35 by Senator Ling Ling Chang (R-Diamond Bar) – Human trafficking: California ACTS Task Force. A veto message can be found here.

  • SB 184 by Senator John Moorlach (R-Costa Mesa) – Judges’ Retirement System II: deferred retirement. A veto message can be found here.

  • SB 218 by Senator Steven Bradford (D-Gardena) – Employment: discrimination enforcement: local government. A veto message can be found here.

  • SB 363 by Senator Richard Pan (D-Sacramento) – Workplace safety. A veto message can be found here.

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