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Scott v. Gino Morena Enter. (9th Cir. 16-56200 4/27/18) Title VII Limitations Period/Continuing Violation


The panel affirmed in part and reversed in part the district court’s summary judgment in favor of the defendant on claims under Title VII of the Civil Rights Act of 1964.


The panel held that, under 42 U.S.C. § 2000e-5(f)(1), the 90-day period for filing a civil action, following exhaustion of administrative remedies, begins when the aggrieved person is given notice of the right to sue by the Equal Employment Opportunity Commission, rather than when the person becomes eligible to receive a right-to-sue notice from the EEOC. Accordingly, the plaintiffs’ claims based on her first administrative charge were timely.


The panel held that the plaintiff’s claims based on a second administrative charge were untimely, but she could base her Title VII claims on the defendant’s alleged acts occurring after she filed her first administrative charge to the extent she could show such acts were part of a single hostile work environment claim.


The panel affirmed the district court’s grant of summary judgment only as to claims based on discrete discriminatory or retaliatory acts occurring after the plaintiff filed her first administrative charge. The panel otherwise reversed and remanded.


Curry v. Equilon Enterprises, LLC (CA4/2 E065764 4/26/18) Wage and Hour/”Employer”


Plaintiff and appellant Sadie M. Curry brought a class action case against defendant and respondent Equilon Enterprises, LLC, doing business as Shell Oil Products US (Shell).  Curry’s causes of action included (1) failure to pay overtime compensation; (2) failure to pay for missed break periods; and (3) unfair business practices (Bus. & Prof. Code, § 17200).  The trial court found Shell was not Curry’s employer and therefore granted Shell’s motion for summary judgment.  Curry contends the trial court erred in its finding and by granting summary judgment.  We affirm the judgment.


Casino Pauma v. NLRB (9th Cir. 16-70397 4/26/18) NLRA/Commercial Gaming on Tribal Lands


The panel granted the National Labor Relations Board’s petition for enforcement of its order; denied Casino Pauma’s petition for review; and upheld the Board’s conclusions that it may apply the National Labor Relations Act (“NLRA”) to the relationship between employees working in commercial gaming establishments on tribal lands and the tribal governments that own and manage the establishments, and that Casino Pauma committed unfair labor practices in violation of the NLRA by trying to stop union literature distribution.


The panel held that the Board affirmatively waived any preclusion defense before this court, deciding instead to litigate the question of its ability to regulate tribes under the NLRA on the merits.


The panel held that although the NLRA was ambiguous as to its application to tribal employers, the Board’s determination that such employers were covered by the NLRA was a “reasonably defensible” interpretation of the NLRA. The panel also held that, contrary to Casino Pauma’s contentions, application of federal Indian law did not produce a different result in this case. The panel held that there was no conflict between the NLRA and the Indian Gaming Regulatory Act, and concluded that Casino Pauma’s compact with California did not displace the application of the NLRA to its activities.


The panel held that there was no exhaustion bar to consideration of Casino Pauma’s main argument under Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945), that it did not violate NLRA section 8(a)(1) when it prevented employees from distributing union literature to customers in front of the casino. The panel concluded that the Board properly interpreted Republic Aviation’s holding concerning NLRA section 7 to reach employees’ customer-directed union literature distribution on non-work time in non-work areas of the employer’s property. The panel further held that the Board reasonably applied to Casino Pauma its literature distribution rules concerning casinos. The panel held that the Board’s conclusion that Casino Pauma violated its employees’ NLRA right to distribute union literature was adequately supported, both by the applicable legal principles and the record.


Glaviano v. Sacramento City Unified School District (CA3 C077743 4/26/18) Reinstatement of Teacher/Reasonable Attorneys’ Fees


After Jerald Glaviano interceded in a confrontation between two of his students, the Sacramento City Unified School District (the District) placed him on unpaid leave and issued an accusation and a notice of intent to dismiss or suspend him without pay.  Following a hearing, the Commission on Professional Competence (Commission) dismissed the accusation and ordered the District to reinstate Glaviano to his former position with back pay and benefits.


Education Code section 44944 provides that if the Commission determines an employee should not be dismissed or suspended, the governing board of the school district shall pay “reasonable attorney’s fees incurred by the employee.”  Glaviano requested fees based on the prevailing hourly rate for similar work in the community, but the trial court concluded the fee award must be based on the reduced hourly rate Glaviano’s counsel actually charged.  Because Glaviano stood by his assertion that the actual rate charged is irrelevant and privileged, the trial court denied his request for attorney’s fees.


The issue presented on appeal is whether the phrase “reasonable attorney’s fees incurred by the employee” in section 44944 necessarily limits a fee award to fees actually charged.  We conclude it does not.  In determining the reasonable fees to which Glaviano is entitled, the trial court should apply the lodestar method:  the reasonable hours spent, multiplied by the prevailing hourly rate for similar work in the community.  (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131-1132 (Ketchum); Meister v. Regents of Univ. of California (1998) 67 Cal.App.4th 437, 446, 449; see Serrano v. Priest (1977) 20 Cal.3d 25, 48-49 (Serrano III).)


Accordingly, we will reverse the trial court’s order.


Chavez v. JPMorgan Chase (9th Cir. 16-55957 4/20/18) Diversity Jurisdiction/Amount in Controversy “as of time of removal”


The panel held that the amount-in-controversy requirement for diversity jurisdiction under 28 U.S.C. § 1332 was satisfied.


Elsa Chavez sued her former employer in California state court, and the employer removed to federal district court on the basis of diversity jurisdiction.


The panel held that the amount in controversy was not limited to damages incurred prior to removal – for example, it was not limited to wages a plaintiff-employee would have earned before removal (as opposed to after removal). The panel further held that the amount in controversy was determined by the complaint operative at the time of removal and encompassed all relief a court may grant on that complaint if the plaintiff was victorious.


The panel applied the standard and concluded that the amount-in-controversy standard was easily satisfied in this case. The panel reviewed the merits of the district court’s summary judgment decision in a concurrently filed memorandum disposition.

County of Los Angeles v. Los Angeles County Civil Service etc. (CA2/1 B278519 4/18/18) Civil Service Commission Hearing/Wiretaps


Based on phone calls legally intercepted by law enforcement during a drug trafficking investigation, investigators came to believe that Carlos Arellano (Arellano), then a detective with the Los Angeles County Sheriff’s Department (Sheriff’s Department), was associating with known narcotic felons, using his law enforcement status to obtain inside information from the department to provide to individuals involved in illegal narcotic activity, and was himself involved in cultivating marijuana.  As the Sheriff’s Department expanded its criminal investigation to include Arellano, it sought a court order releasing the wiretap recordings, and transcripts from those recordings, to the Sheriff’s Department for use against Arellano.  The court’s order permitted the district attorney to release the wiretap evidence to the Sheriff’s Department and further authorized testimony regarding the evidence pursuant to Penal Code section 629.78.


Although the Sheriff’s Department closed its criminal investigation without filing charges, the department later sought to discharge Arellano from his position.  During the civil service commission hearing that followed, the Sheriff’s Department attempted to use the intercepted calls during the administrative proceeding.  The hearing officer granted Arellano’s motion to suppress the calls and ultimately recommended that the Arellano only receive a five day suspension without pay.  The civil service commission adopted the recommendation.  The County of Los Angeles then filed a petition for writ of administrative mandamus in superior court.  The superior court denied the petition.  We affirm.


Shapira v. Lifetech Resources (CA2/4 B283445 4/17/18) Breach of Employment Contract/ Prevailing Party


Appellant Achikam Shapira sued his former employer, Lifetech Resources, LLC, for breach of an employment contract. The case proceeded to a bench trial; the parties presented their evidence and rested.  The parties and court agreed that the parties would submit closing arguments in written briefs.  Before Shapira submitted his closing argument brief, he requested that the court dismiss the case pursuant to Code of Civil Procedure, section 581, subdivision (e) (section 581(e)), which provides,  “After the actual commencement of trial, the court shall dismiss the complaint . . . with prejudice, if the plaintiff requests a dismissal . . . .”


The court denied Shapira’s request to dismiss the case. After the parties filed their closing argument briefs, the court entered a statement of decision and judgment in Lifetech’s favor. The court also held that Lifetech was the prevailing party pursuant to Civil Code section 1717, and awarded costs and $137,000 in attorney fees to Lifetech.


Shapira appealed the order awarding attorney fees.  He argues that the court should have dismissed the case under section 581(e), and therefore the court’s award of attorney fees was erroneous under Civil Code section 1717, subdivision (b)(2) (section 1717(b)(2)), which states, “Where an action has been voluntarily dismissed or dismissed pursuant to a settlement of the case, there shall be no prevailing party for purposes of this section.”


We agree with Shapira and reverse.  Section 581(e) provides a right to dismiss a case before the completion of trial, and the court erred by refusing to dismiss the case upon Shapira’s request.  As such, there was no prevailing party under section 1717(b)(2), and the attorney fees award was erroneous.

Castillo v. Glenair, Inc. (CA2/2 B278239 4/16/18) Joint Employer Settlement/Res Judicata


In a joint employer arrangement, can a class of workers bring a lawsuit against a staffing company, settle that lawsuit, and then bring identical claims against the company where they had been placed to work.  We answer no.


This wage and hour putative class action involves the relationship between a temporary staffing company (GCA Services Group, Inc. (GCA)), its employees (appellants Andrew and David Castillo), and its client company (respondent Glenair, Inc.).  The Castillos were employed and paid by GCA to perform work on site at Glenair.  Glenair was authorized to and did record, review, and report the Castillos’ time records to GCA so that the Castillos could be paid.  The Castillos characterize GCA and Glenair as joint employers.  As explained below, the undisputed facts of this case demonstrate both that Glenair and GCA are in privity with one another for purposes of the Castillos’ wage and hour claims, and that Glenair is an agent of GCA with respect to GCA’s payment of wages to its employees who performed services at Glenair. 

These findings of privity and agency are significant.  While this case was pending, a separate class action brought against, among others, GCA resulted in a final, court-approved settlement agreement.  (Gomez v. GCA Production Services, Inc. (Super. Ct. San Bernardino County, 2014, No. CIVRS1205657 (Gomez).)  The Gomez settlement agreement contains a broad release barring settlement class members from asserting wage and hour claims such as those alleged here against GCA and its agents.  The Castillos are members of the Gomez settlement class and did not opt out of that settlement. 

The Castillos present claims against Glenair involve the same wage and hour claims, for the same work done, covering the same time period as the claims asserted in Gomez.  Thus, because Glenair is in privity with GCA (a defendant in Gomez) and is an agent of GCA, the Gomez settlement bars the Castillos’ claims against Glenair as a matter of law. 


The Castillos appeal the trial court’s grant of summary judgment.  As discussed below, however, we conclude summary judgment was proper.


Tanguilig v. Neiman Marcus Group, Inc. (CA1/4 A141383 4/16/18) Wrongful Termination/Tolling


Appellant Bernadette Tanguilig brought suit against her former employer, Neiman Marcus Group, Inc. (NMG), alleging a combination of individual and class claims for wrongful termination in violation of public policy and multiple violations of the California Labor Code.  Early in the trial court proceedings, NMG successfully demurred to Tanguilig’s wrongful termination and related claims, and several years later, moved to dismiss the remaining claims pursuant to California’s five-year dismissal statute, Code of Civil Procedure section 583.310. The trial court granted the motion and dismissed the suit.  On appeal, Tanguilig urges us to overturn the five-year dismissal order, arguing primarily that the trial court erred in failing to toll the five-year clock under section 583.340, subdivision (c), for the period during which an order compelling co-plaintiff Juan Carlos Pinela to arbitration was in effect.  Tanguilig also appeals an order sustaining NMG’s demurrer and an award of prevailing-party costs to NMG. 


Finding no merit to any of the assigned errors, we affirm.


The Police Retirement System of St. Louis v. Page (CA6 H043220 4/16/18) Antitrust Action on Employee Recruitment/Shareholders’ Derivative Action Statute of Limitations


In this derivative action, shareholders of Google, Inc. allege the corporation was harmed by executives who agreed to refrain from actively recruiting employees working for competitors.  The trial court granted the defendants’ summary judgment motion, finding the action barred by the applicable statute of limitations.  We will affirm.

Riske v. Superior Court (CA2/7 B283035 4/16/18) Retaliation/Peace Officer Personnel Records


Robert Riske, a retired Los Angeles police officer, sued the City of Los Angeles alleging the Los Angeles Police Department had retaliated against him for protected whistleblower activity by failing to assign or promote him to several positions and selecting instead less qualified candidates.  Riske filed a discovery motion pursuant to Evidence Code sections 1043 and 1045 to obtain certain summary personnel records relied on by the City in making assignment and promotion decisions.  After the superior court erroneously ruled those records were not subject to discovery because the officers selected for the positions Riske sought were innocent third parties who had not witnessed or caused Riske’s injury, we issued a writ of mandate directing the superior court to vacate its order denying Riske’s discovery motion and to enter a new order directing the City to produce those records for an in camera inspection in accordance with section 1045.  (See Riske v. Superior Court (2016) 6 Cal.App.5th 647, 664-665 (Riske I).)


The superior court conducted the in camera hearing and ordered the requested personnel records to be produced in accordance with the parties’ protective order.  However, pursuant to section 1045, subdivision (b)(1), which excludes from disclosure “[i]nformation consisting of complaints concerning conduct occurring more than five years before the event or transaction that is the subject of the litigation” in which discovery or disclosure is sought, the court ordered redaction of all items in those reports concerning conduct that had occurred more than five years before Riske filed his complaint.


Riske again petitioned this court for a writ of mandate directing the superior court to order the City to produce those records without redaction.  In response to our inquiry, both Riske and the City agree that, if section 1045, subdivision (b)’s five-year disclosure bar applies at all, it is measured from the date each officer was promoted instead of Riske—the alleged adverse employment action at issue in the litigation—and not the date Riske filed his complaint, as the superior court ruled.  However, Riske also argues more broadly that section 1045, subdivision (b), which prohibits disclosure of stale complaints against police officers, has no application to the personnel reports sought in this case.  We agree and grant the petition.


Powell v. Bear Valley Community Hospital (CA4/1 D072616, field 3/26/18, pub. ord. 4/16/18) Medical Staff Privileges


The Board of Directors (the Board) of Bear Valley Community Hospital (Bear Valley) denied Dr. Robert O. Powell's advancement from provisional to active staff membership and reappointment to Bear Valley's medical staff.  Dr. Powell appeals from the superior court judgment denying his petition for writ of mandate to void the Board's decision and for reinstatement of his medical staff privileges.  We affirm.

County of L.A. v. L.A. County Civil Service Com. (CA2/3 B275974 4/12/18) Final Judgment Rule/Interlocutory Order on Civil Service Commission Decision


The County of Los Angeles fired Gregory Merritt, a supervisor in the County’s Department of Children and Family Services for (1) failing to adequately supervise a social worker, Patricia Clement, and (2) approving Clement’s unjustifiable closure of a case of suspected child abuse without first consulting the Department’s records, as required by Department policy. Those records indicated the child – eight-year-old Gabriel Fernandez – was at risk of further abuse and that the file unquestionably should not have been closed. In May 2013, less than two months after Merritt approved closing the file, thereby ending the Department’s efforts to protect the child, Gabriel’s mother and her boyfriend beat the child to death.


Merritt appealed his discharge to the Civil Service Commission. After taking evidence, a hearing officer found that Merritt had been negligent, but set aside the discharge, instead imposing a 10-day suspension as the only penalty. The County objected to reinstating Merritt. In response, and without reading the record or receiving any further evidence, the Commission adopted the hearing officer’s negligence findings, but substituted a 30-day suspension without back pay as the penalty.


The County filed a petition for writ of administrative mandate, asking the Superior Court to overturn the Commission’s decision requiring reinstatement and to instead uphold its firing of Merritt. Merritt filed a separate petition for writ of traditional mandate seeking an award of back pay. The Superior Court consolidated the two petitions.


On May 5, 2016, the Superior Court, having concluded the Commission set forth insufficient findings to “bridge the analytic gap” between the evidence of Merritt’s failings and its decision to impose a 30-day suspension rather than discharge (or any other possible penalty), partially granted the County’s petition, to this extent: it remanded the matter to the Commission with instructions to set aside its decision, make appropriate findings, reconsider the penalty based on those findings, and issue a new decision that includes findings explaining its rationale. The court explicitly stated its order was interlocutory. It did not require or foreclose any particular decision by the Commission and left for future review by that court the core issue of Merritt’s discharge or reinstatement. The court denied as moot Merritt’s petition for an award of back pay, with the express understanding that it could be revived depending on the Commission’s decision. In a colloquy with the judge, Merritt’s counsel acknowledged that this interlocutory order would not be subject to appellate review. Nevertheless, Merritt appealed.


In the recent case of Dhillon v. John Muir Health, our Supreme Court reiterated the familiar rule that “[i]n general, an adverse ruling in a judicial proceeding is appealable once the trial court renders a final judgment,” (id. at p. 1115) and that the general rule applies equally in administrative mandate proceedings. (Ibid.) It eschewed a one-size-fits-all rule, however, for determining whether an order partially granting a petition for writ of mandate and remanding the matter to an agency or other inferior tribunal is a final judgment, and therefore appealable. Instead, it stated “ ‘ “[a]s a general test, which must be adapted to the particular circumstances of the individual case, . . . where no issue is left for future consideration except the fact of compliance or noncompliance with the terms of the first decree, that decree is final, but where anything further in the nature of judicial action on the part of the court is essential to a final determination of the rights of the parties, the decree is interlocutory.” ’ ” (Ibid.) Dhillon also recognized, however, that an otherwise nonfinal order remanding a matter to an administrative agency may be appealable if the order affects substantial rights and may, as a practical matter, be unreviewable after resolution of the merits of the controversy.  (Id. at pp. 1117-1118 & fn. 4.)


Because the May 5, 2016 order from which Merritt purports to appeal left the key issues raised by the parties for future resolution by the trial court, and because the propriety of that order is an issue that could be resolved in any future appeal from a final judgment, the order is not a final judgment and is not appealable. Accordingly, we dismiss Merritt’s purported appeal.

Ochoa v. County of Kern (CA5 F073163 4/12/18) Public Safety Officers Procedural Bill of Rights Act


Appellant Arthur Ochoa, formerly employed by the Kern County Sheriff’s Office (KCSO) as a deputy sheriff, petitioned for a peremptory writ of mandate commanding respondents County of Kern and Kern County Sheriff Donny Youngblood to set aside his termination and other extraordinary relief to remedy a violation of the Public Safety Officers Procedural Bill of Rights Act (Gov. Code, § 3300 et seq.).  Ochoa claimed KCSO—in contravention of section 3304, subdivision (d)—failed to complete an administrative investigation of his alleged misconduct and notify him of the proposed disciplinary action within one year of the public agency’s discovery by a person authorized to initiate said investigation.  The superior court entered an order and judgment denying the petition.


On appeal, Ochoa reiterates his termination was time barred because a KCSO sergeant initiated an investigation of his alleged misconduct on March 25, 2013, and an internal affairs investigator notified him of the proposed termination on August 11, 2014.  Respondents assert the one-year statute of limitations period in section 3304, subdivision (d)(1), does not commence until an internal affairs investigation is authorized.  Since the sergeant who initiated the investigation on March 25, 2013, was not authorized by department policy to initiate an internal affairs investigation, his investigation did not start the one-year limitations period.  They also argue two separate criminal investigations of the misconduct tolled the one-year limitations period.  In the published portion of this opinion, we conclude section 3304, subdivision (d)(1), requires the investigation to be completed within one year of the public agency’s discovery by a person authorized to initiate an investigation of the allegation of misconduct; although the sergeant could not initiate an internal affairs investigation, he was “a person authorized to initiate an investigation” of the allegation within the meaning of that statute.  We, therefore, agree with Ochoa the one-year limitations period commenced March 25, 2013.  In the unpublished portion, we conclude KCSO acted in a timely manner because the first criminal investigation sufficiently tolled the limitations period.  The order and judgment denying Ochoa’s petition are affirmed.


City and County of San Francisco v. Post (CA1/2 A149136 4/11/18) FEHA Housing Discrimination/Section 8


In 1998 the San Francisco Board of Supervisors outlawed discrimination against tenants who pay a portion of their rent with a Section 8, or similar, housing voucher.  They did this by amending San Francisco’s existing housing discrimination ordinance to outlaw discrimination based on a person’s “source of income,” a term they defined broadly to include government rent subsidies.  (S.F. Police Code, § 3304, subd. (a).)  The following year, the California Legislature also expanded the state’s Fair Employment and Housing Act (FEHA) to prohibit discrimination based on a tenant’s “source of income,” but the Legislature defined the term narrowly, so that it does not reach government rent subsidies such as Section 8.  (Gov. Code, § 12955, subd. (a).)  FEHA does not prevent a landlord from declining to take Section 8 tenants.  (Sabi v. Sterling (2010) 183 Cal.App.4th 916 (Sabi).)  The question this case poses is whether FEHA preempts San Francisco’s ordinance to the extent the local ordinance outlaws discrimination based on a tenant’s participation in the Section 8 program.  The trial court found no preemption, and we agree.


Squire v. County of Los Angeles (CA2/2 B276887, filed 3/21/18, pub. ord. 4/10/18) Public Safety Officers Procedural Bill of Rights Act


Appellants Matthew Squire (Squire) and Ernesto Masson (Masson) (collectively appellants) appeal from the judgment denying their petition for writ of mandate.  They contend the written reprimands they received from the Los Angeles County Sheriff’s Department (Department) in September 2014, should be rescinded because they did not receive notice of proposed discipline within the one-year statute of limitations period in the Public Safety Officers Procedural Bill of Rights Act (POBRA) (Gov. Code, § 3300 et seq.).  We disagree and affirm.


Rizo v. Yovino (9th Cir. 16-15372 4/9/18) Equal Pay Act/Prior Salary


Affirming the district court’s denial of summary judgment to the defendant on a claim under the Equal Pay Act, the en banc court held that prior salary alone or in combination with other factors cannot justify a wage differential between male and female employees.


Overruling Kouba v. Allstate Ins. Co., 691 F.2d 873 (9th Cir. 1982), the en banc court held that an employee’s prior salary does not constitute a “factor other than sex” upon which a wage differential may be based under the statutory “catchall” exception set forth in 29 U.S.C. § 206(d)(1). The en banc court concluded that “any other factor other than sex” is limited to legitimate, job-related factors such as a prospective employee’s experience, educational background, ability, or prior job performance. By relying on prior salary, the defendant therefore failed as a matter of law to set forth an affirmative defense. The en banc court remanded the case to the district court.


Concurring, Judge McKeown, joined by Judge Murguia, wrote that she agreed with most of the majority opinion, particularly its observation that past salary can reflect historical sex discrimination. She wrote that the majority, however, went too far in holding that any consideration of prior pay is impermissible under the Equal Pay Act, even when it is assessed with other job-related factors.


Concurring, Judge Callahan, joined by Judge Tallman, wrote that in holding that prior salary can never be considered, the majority failed to follow Supreme Court precedent, unnecessarily ignored the realities of business, and, in doing so, might hinder rather than promote equal pay for equal work.


Concurring in the judgment, Judge Watford wrote that in his view, past pay can constitute a “factor other than sex,” but only if an employee’s past pay is not itself a reflection of sex discrimination.

Jones v. Royal Admin. Svcs. (9th Cir. 15-17328 4/4/18) Vicarious Liability/Telemarketers/Telephone Consumer Protection Act


The panel filed (1) an order amending its opinion and (2) an amended opinion affirming the district court’s grant of summary judgment in favor of the defendant in an action under the Telephone Consumer Protection Act.


The panel held that Royal Administration Services, Inc., could not be held liable under the TCPA for several phone calls made by telemarketers employed by All American Auto Protection, Inc., because the telemarketers did not have actual authority to place the unlawful calls, and Royal exercised insufficient control over the manner and means of the work to establish vicarious liability.


Encino Motorcars, LLC v. Navarro et al. (US 16–1362 4/2/18) FLSA Overtime Exemption


Respondents, current and former service advisors for petitioner Encino Motorcars, LLC, sued petitioner for backpay, alleging that petitioner violated the Fair Labor Standards Act (FLSA) by failing to pay them overtime. Petitioner moved to dismiss, arguing that service advisors are exempt from the FLSA’s overtime-pay requirement under 29 U. S. C. §213(b)(10)(A), which applies to “any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles, trucks, or farm implements.” The District Court agreed and dismissed the suit. The Court of Appeals for the Ninth Circuit reversed. It found the statute ambiguous and the legislative history inconclusive, and it deferred to a 2011 Department of Labor rule that interpreted “salesman” to exclude service advisors. This Court vacated the Ninth Circuit’s judgment, holding that courts could not defer to the procedurally defective 2011 rule, Encino Motorcars, LLC v. Navarro, 579 U. S. ___, ___–___ (Encino I), but not deciding whether the exemption covers service advisors, id., at ___. On remand, the Ninth Circuit again held that the exemption does not include service advisors.


Held: Because service advisors are “salesm[e]n . . . primarily engaged in . . . servicing automobiles,” they are exempt from the FLSA’s overtime-pay requirement. Pp. 5–11.


(a) A service advisor is obviously a “salesman.” The ordinary meaning of “salesman” is someone who sells goods or services, and service advisors “sell [customers] services for their vehicles,” Encino I, supra, at ___. P. 6.


(b) Service advisors are also “primarily engaged in . . . servicing automobiles.” “Servicing” can mean either “the action of maintaining or repairing a motor vehicle” or “[t]he action of providing a service.” Oxford English Dictionary 39. Service advisors satisfy both definitions because they are integral to the servicing process. They “mee[t] customers; liste[n] to their concerns about their cars; sugges[t] repair and maintenance services; sel[l] new accessories or replacement parts; recor[d] service orders; follo[w] up with customers as the services are performed (for instance, if new problems are discovered); and explai[n] the repair and maintenance work when customers return for their vehicles.” Encino I, supra, at ___. While service advisors do not spend most of their time physically repairing automobiles, neither do partsmen, who the parties agree are “primarily engaged in . . . servicing automobiles.” Pp. 6–7.


(c) The Ninth Circuit invoked the distributive canon—matching “salesman” with “selling” and “partsman [and] mechanic” with “[servicing]”—to conclude that the exemption simply does not apply to “salesm[e]n . . . primarily engaged in . . . servicing automobiles.” But the word “or,” which connects all of the exemption’s nouns and gerunds, is “almost always disjunctive.” United States v. Woods, 571 U. S. 31, 45. Using “or” to join “selling” and “servicing” thus suggests that the exemption covers a salesman primarily engaged in either activity.


Statutory context supports this reading. First, the distributive canon has the most force when one-to-one matching is present, but here, the statute would require matching some of three nouns with one of two gerunds. Second, the distributive canon has the most force when an ordinary, disjunctive reading is linguistically impossible. But here, “salesman . . . primarily engaged in . . . servicing automobiles” is an apt description of a service advisor. Third, a narrow distributive phrasing is an unnatural fit here because the entire exemption bespeaks breadth, starting with “any” and using the disjunctive “or” three times. Pp. 7–9.


(d) The Ninth Circuit also invoked the principle that exemptions to the FLSA should be construed narrowly. But the Court rejects this principle as a guide to interpreting the FLSA. Because the FLSA gives no textual indication that its exemptions should be construed narrowly, they should be given a fair reading. P. 9.


(e) Finally, the Ninth Circuit’s reliance on two extraneous sources to support its interpretation—the 1966–1967 Occupational Outlook Handbook and the FLSA’s legislative history—is unavailing. Pp. 9– 11.


845 F. 3d 925, reversed and remanded.


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


Kim v. Reins Internat. California, Inc. (2017) 18 Cal.App.5th 1052 (SC S246911/B278642 review granted 3/28/18) PAGA/Standing/Aggrieved Employee


Petition for review after the Court of Appeal affirmed the judgment in a civil action. This case presents the following issue: Does an employee bringing an action under the Private Attorney General Act (Lab. Code, § 1698 et seq.) lose standing to pursue representative claims as an “aggrieved employee” by dismissing his or her individual claims against the employer? Votes: Cantil-Sakauye, C.J., Chin, Corrigan, Liu, Cuéllar and Kruger, JJ. Review granted/brief due.



Court of Appeal Opinion


Alameda County Deputy Sheriff’s Assn. v. Alameda County Employees’ Retirement Assn. (2018) 19 Cal.App.5th 61, mod. 19 Cal.App.5th 945a (SC S247095/A141913/A141913M review granted & depub. denied 3/28/18) Pension Reform Act/Vested Rights


Petition for review after the Court of Appeal affirmed in part and reversed in part the judgment in a civil action. This case includes the following issue: Did statutory amendments to the County Employees’ Retirement Law (Gov. Code, § 31450 et seq.) made by the Public Employees’ Pension Reform Act of 2013 (Gov. Code, § 7522 et seq.) reduce the scope of the pre-existing definition of pensionable compensation and thereby impair employees’ vested rights protected by the contracts clauses of the state and federal Constitutions? Votes: Cantil-Sakauye, C.J., Chin, Corrigan, Liu, Cuéllar and Kruger, JJ. Answer brief due.



Court of Appeal Modified Opinion


Guarino v. County of Siskiyou (CA3 C076629, filed 3/1/18, pub. ord. 3/29/18) Anti-SLAPP/ Breach of Employment Contract


Appellant Thomas P. Guarino (Guarino) appeals from an order of the superior court granting an “anti-SLAPP” (Strategic Lawsuits Against Public Participation) motion to strike his First Amended Complaint pursuant to Code of Civil Procedure section 425.16, undesignated section references are to the Code of Civil Procedure.  The motion was filed by defendants County of Siskiyou (County), individual members of the Board of Supervisors Marcia Armstrong, Grace Bennett, Michael Kobseff, Ed Valenzuela, and Jim Cook (the Board), as well as County Administrator, Tom Odom (collectively, defendants).  Guarino also appeals the trial court’s order sustaining demurrers without leave to amend that were filed on behalf of the County, the Board, and Odom. 


Because we affirm the order granting the Code of Civil Procedure section 425.16 motion, we need not decide whether the trial court erred in sustaining defendants’ demurrers.


EHM Productions, Inc. v. Starline Tours of Hollywood, Inc. (CA2/2 B281594 3/28/18) Arbitration


Starline Tours of Hollywood, Inc. (appellant) appeals from a judgment confirming an arbitration award.  The arbitration involved a contract dispute between appellant and EHM Productions, Inc. doing business as TMZ (respondent) regarding appellant’s duty to defend respondent in a lawsuit brought by appellant’s bus drivers.  Respondent obtained an award requiring appellant to defend respondent in the bus driver action.  Following arbitration, the award was confirmed by a JAMS appellate panel.  Respondent filed a petition to confirm the award, which was granted.  Appellant appealed, and this court affirmed the award on October 4, 2017.


After respondent filed its petition to confirm the arbitration award, the JAMS appellate panel determined that appellant owed respondent $41,429.92 in costs.  Following confirmation of the initial arbitration award, respondent sought, and received, confirmation of the cost award. Appellant now appeals from the second judgment granting respondent’s petition to confirm the cost award.  Appellant’s sole contention on appeal is that the trial court erred by entering two consecutive judgments resulting from the same arbitration.  We find that appellant has failed to demonstrate error, therefore we affirm the second award.

Demeter v. Taxi Computer Services (CA2/5 B276192 3/27/18) Fee-Related Talent Services Law


Plaintiff and appellant Michael Demeter (Demeter) filed a putative class action complaint against defendants and respondents Taxi Computer Services, Inc. (TAXI) and its CEO Michael Laskow (Laskow).  The complaint alleged TAXI operated a talent listing service without procuring the bond California’s Fee-Related Talent Services Law (FTSL) requires “for the benefit of any person injured by any unlawful act, omission, or failure to provide the services of the talent service.”  (Lab. Code, § 1703.3, subd. (b).)  Demeter alleged causes of action under the FTSL itself and under California’s Unfair Competition Law (UCL) (Bus. & Prof. Code, § 17200 et seq.).  TAXI and Laskow moved for summary judgment, arguing Demeter was not aware of the bond requirement when he signed up with TAXI and suffered no injury because he had no complaints about the service TAXI offered.  The trial court agreed with TAXI and Laskow, and we consider whether the trial court properly granted summary judgment in their favor.


Serrano v. Aerotek, Inc. (CA1/1 A149187, filed 3/9/18, pub. ord. 3/23/18) Wage & Hour/Meal Periods


Plaintiff Norma Serrano brought this lawsuit against her former employer, Aerotek, Inc., which placed her as a temporary employee with its client, Bay Bread, LLC.  She raised four causes of action against Aerotek and Bay Bread based on their alleged failure to provide meal periods.  On appeal, she challenges an order granting summary judgment to Aerotek, arguing the trial court erred by determining that Aerotek satisfied its own duty to provide meal periods and was not liable for any meal period violations by Bay Bread.  We affirm.


Hayes v. Temecula Valley Unified Sch. Dist. (CA4/1 D072998, filed 2/28/18, pub. ord. 3/23/18) School Principal Reassignment/Ed. Code § 44951


Karen Hayes appeals a judgment denying her writ of mandate petition seeking an order directing the Temecula Valley School District (District) to reinstate her as a middle school principal.  The District removed Hayes as principal and reassigned her to a teaching position for the 2015-2016 school year under its statutory authority to reassign a school principal without cause.  (Ed. Code, § 44951.)  The District also placed Hayes on paid administrative leave through the end of the 2014-2015 school year.


Hayes primarily challenges her release and reassignment from her school principal position and, to a lesser extent, her placement on paid administrative leave for about three months.  She contends the court erred in denying her writ petition because: (1) the District's notice of the no-cause reassignment was untimely as the governing school board (Board) did not approve the notice until two days after the March 15 statutory deadline (§ 44951); (2) her removal was in fact "for cause" and therefore she was entitled to a hearing and due process before the removal and reassignment; and (3) her placement on paid administrative leave violated statutes and internal District policies.


On the first issue, we determine the notice was timely because the statutes do not require school board preapproval for a section 44951 March 15 notice to be valid.  We conclude the remaining contentions are without merit on the factual record before us.  Accordingly, we affirm.

Lawson v. ZB, N.A. (2017) 227 Cal.Rptr.3d 613 (SC S246711/ D071376 review granted 3/21/18) PAGA/FAA Preemption


Petition for review after the Court of Appeal granted a petition for peremptory writ of mandate. This case presents the following issue: Does a representative action under the Private Attorneys General Act of 2004 (Lab. Code, § 2698 et seq.) seeking recovery of individualized lost wages as civil penalties under Labor Code section 558 fall within the preemptive scope of the Federal Arbitration Act (9 U.S.C. § 1 et seq.)? Votes: Cantil-Sakauye, C.J., Chin, Corrigan, Liu, Cuéllar and Kruger, JJ.



Court of Appeal Opinion


Glazing Health & Welfare Fund v. Lamek (9th Cir. 16-16155 3/21/18) ERISA


The panel affirmed the district court’s dismissal of an ERISA action brought by employee benefit trust funds, seeking unpaid contributions owed under the contracts governing the benefit plans that the trust funds managed for Accuracy Glass & Mirror Company.


The trust funds argued that, pursuant to those contracts, the unpaid contributions were trust assets over which the owners and officers of Accuracy exercised control and that the trust funds therefore could sue these individuals as fiduciaries to collect the contributions. The panel held that the trust funds’ claim was foreclosed by Bos v. Bd. of Trustees (Bos I), 795 F.3d 1006 (9th Cir. 2015), which held that employers are not fiduciaries under ERISA as to unpaid contributions to ERISA benefit plans.


Dissenting, Judge Gleason wrote that she disagreed with the majority’s interpretation of Bos I and would find that outside of the bankruptcy context unpaid employer contributions to employee benefit plans may constitute plan assets when the ERISA plan document expressly defines them as such.

McGlynn v. State of Calif. (CA1/1 A146855 3/20/18) Judges’ Retirement System II


In this mandamus proceeding, six judges who were elected to the superior court in mid-term elections in 2012, but who did not take office until January 7, 2013, maintain they are entitled to benefits under the Judges’ Retirement System II (JRS II) as in effect at the time they were elected, rather than at the time they assumed office. This is a matter of considerable importance to these judges because, on January 1, 2013, JRS II became subject to the provisions of the California Public Employees’ Pension Reform Act of 2013 (PEPRA), which amended virtually all state employee retirement systems to begin addressing the state’s enormous unfunded pension liability and returning these systems to actuarially sound footing. Among other things, PEPRA increases employee contributions, provides for fluctuating contribution rates based on market performance and actuarial projections, and bases the amount of monthly pension payments on an employee’s final three years of compensation, rather than on only the final year.


We conclude, as did the trial court, that the judges did not obtain a vested right in JRS II benefits as judges-elect, but rather obtained a vested right to retirement benefits 1 Government Code section 75500 et seq. 2 Government Code section 7522 et seq. 2 only upon taking office, after PEPRA went into effect. We also conclude PEPRA’s provisions pertaining to fluctuating pension contributions do not violate the nondiminution clause of the California Constitution (Cal. Const., art. III, § 4), nor do they impermissibly delegate legislative authority over judicial compensation (Cal. Const., art. VI, § 19). We therefore affirm the judgment.


Sali v. Corona Reg’l Med. Ctrl. (9th Cir. 15-56389 3/19/18) Contempt/Wage & Hour Class Action


The panel affirmed the district court’s contempt judgment arising after plaintiffs’ counsel failed to pay sanctions when they did not produce their expert at a deposition as ordered.


The panel held that under Fed. R. Civ. P. 37’s general discovery enforcement provisions, a court can order a party to produce its nonparty expert witness at a deposition, and if the party makes no effort to ensure that its witness attends the deposition, sanction the party’s counsel when the witness fails to appear unless the failure to produce the expert “was substantially justified or other circumstances make an award of expenses unjust.” Fed. Civ. P. 37(b)(2)(C). The panel held that the Rule 37 sanctions were reasonable in this case.


Corley v. San Bernardino County Fire Protection Dist. (CA4/1 3/15/18 D072852) Age Discrimination/Jury Instruction Firefighters' Procedural Bill of Rights

George Corley filed this action against his former employer, the San Bernardino County Fire Protection District (the District).[1]  The trial court held a jury trial on a single cause of action for age discrimination under the Fair Employment and Housing Act (Gov. Code, § 12900 et seq.).  The jury rendered a special verdict in which it found that Corley's age was a substantial motivating reason for the District's termination of his employment and awarded damages for lost earnings.  The trial court subsequently entered a judgment in favor of Corley against the District awarding Corley $597,629 in damages, $853,443 in attorney fees, and $40,733 in costs.


On appeal, the District contends that the trial court erred in denying its request to instruct the jury pursuant to a provision in the Firefighters' Procedural Bill of Rights (§ 3254, subd. (c)).  The District also claims that the trial court erred in instructing the jury that "the use of salary as the basis for differentiating between employees when terminating employment may be a factor used to constitute age discrimination" if the employer's termination policy adversely affects older workers.  The District further maintains that there is insufficient evidence to support the jury's award of damages based on its implicit finding that Corley would have been promoted but for the District's discrimination.  Finally, the District claims that the trial court abused its discretion in applying a multiplier in awarding Corley statutory attorney fees.  In the published portion of the discussion, we interpret section 3254, subdivision (c) and conclude that the trial court did not err in refusing to instruct the jury pursuant to this provision.  In unpublished portions of the discussion, we conclude that the District fails to establish any reversible error with respect to its remaining claims.  Accordingly, we affirm the judgment.


Saheli v. White Memorial Medical Center (CA2/8 B283217 3/14/18) Arbitration/Ralph and Bane Acts


White Memorial Medical Center (White Memorial) and Juan Barrio, M.D. (together, Defendants) challenge the denial in part of their petition to compel arbitration of claims brought against them by Gezel Saheli, M.D.  Although the trial court ordered Saheli to arbitrate the majority of her claims, it refused to compel arbitration of her claims brought pursuant to Civil Code sections 51.7 (Ralph Act) and 52.1 (Bane Act).  The court reasoned that the parties’ arbitration agreement failed to comply with special requirements for agreements to arbitrate such claims.  Specifically, sections 51.7 and 52.1 prohibit the enforcement of agreements to arbitrate Ralph Act and Bane Act claims that are made as a condition of certain contracts or of providing or receiving goods or services.  They also mandate that the party seeking to enforce an agreement to arbitrate such claims prove the other party knowingly and voluntarily agreed to arbitration.  Defendants contend (1) the trial court erred in its interpretation of the parties’ arbitration agreement and (2) the Ralph Act’s and Bane Act’s special requirements for arbitration agreements are preempted by the Federal Arbitration Act (FAA).  We agree and reverse the trial court’s order denying Defendants’ petition to compel arbitration of Saheli’s Ralph Act and Bane Act claims.


Bill Signed by Governor (3/13/18)


  • AB 110 by the Committee on Budget – In-home supportive services provider wages: emergency caregiver payments for foster care: civil immigration detainees: recording fees.


MMM Holdings, Inc. v. Reich (CA4/3 G053739 3/12/18) Retaliation/Qui Tam/Anti-SLAPP


Plaintiffs, MMM Holdings, Inc. (MMM), and MSO of Puerto Rico, Inc. (MSO), sued defendant Marc Reich, the attorney who represented their adversary in a whistleblower qui tam action filed against plaintiffs in the United States District Court.  Alleging causes of action for claim and delivery, conversion, civil theft, unjust enrichment, and unfair competition, plaintiffs contend Reich received, wrongfully possessed, and refused to turn over, some 26,000 electronically stored documents his client, Jose “Josh” Valdez, took with him in 2010 when he was terminated by MSO for his allegedly “vocal opposition to what he perceived as Plaintiffs’ fraudulent practices.” 


Reich filed a special motion to strike the complaint under Code of Civil Procedure section 425.16, the anti-SLAPP (strategic lawsuit against public participation) statute.  The court granted the motion, concluding the claims asserted by plaintiffs against Reich involved Reich’s petitioning activity protected by the anti-SLAPP statute, and that plaintiffs had not shown, and could not show, a probability they would prevail on any of their claims.  We conclude the court did not err and affirm the order.


Alvarado v. Dart Container Corp. of California (SC S232607 3/5/18) Wage & Hour/Bonus Pay Divisor


In this case, we decide how an employee’s overtime pay rate should be calculated when the employee has earned a flat sum bonus during a single pay period.  Specifically, we consider whether the divisor for purposes of calculating the per-hour value of the bonus should be (1) the number of hours the employee actually worked during the pay period, including overtime hours; (2) the number of nonovertime hours the employee worked during the pay period; or (3) the number of nonovertime hours that exist in the pay period, regardless of the number of hours the employee actually worked.  We conclude that the divisor should be the second of these options.  We reverse the judgment of the Court of Appeal.


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


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

Local Joint Exec. Bd. v. NLRB (9th Cir. 15-72878 2/27/18) NLRA/Make-Whole Relief


The panel granted a Union’s petition for review, vacated an order of the National Labor Relations Board, and remanded for the Board to award standard make-whole relief, in a case arising when the now-defunct Hacienda Resort Hotel and Casino and Sahara Hotel and Casino in Las Vegas violated section 8(a)(5) of the National Labor Relations Act (“NLRA”) by unilaterally terminating the Local Joint Executive Board, Culinary Workers Union Local 226 and Bartenders Union Local 165’s dues-checkoff without bargaining to agreement or impasse.


In a prior case, this court determined that there was a violation of the NLRA and remanded to the Board to determine what relief was warranted. The Board declined to award make-whole relief, the standard remedy when an employer unlawfully ceases union dues-checkoff. Instead, the Board awarded the Union prospective-only relief.


The panel held that the Union’s arguments were not premature.


The panel held that the Board clearly abused its discretion in declining to award the standard remedy of make-whole relief.


First, the panel held that the Board did not provide a valid explanation for departing from its standard remedy in dues checkoff cases. Specifically, the panel held that the Board’s reliance-based explanation was improper, because it was unreasonable for the employers to rely on Board precedent that had never been applied in a reasoned manner in the absence of a union security clause, and because the Board’s other explanations were similarly erroneous.


Second, the panel held that by ordering prospective-only relief against defunct entities, the Board effectively ordered no relief at all, and therefore did not effectuate the policies of the NLRA.


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