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Jones v. Royal Admin. Svcs. (9th Cir. 15-17328 8/9/17) TCPA/Telemarketers are Independent Contractors


Charles Jones and Josh Watson seek to hold Royal Administration Services, Inc. (“Royal”) vicariously liable for several telephone calls made in violation of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, by telemarketers employed by All American Auto Protection, Inc. (“AAAP”). Royal can only be held vicariously liable for these calls if the telemarketers were acting as its agents, as defined by federal common law, when the calls were placed. To determine whether the AAAP telemarketers were Royal’s agents or independent contractors, we apply the ten nonexhaustive factors set forth in the Restatement (Second) Of Agency § 220(2) (1958). Schmidt v. Burlington N. & Santa Fe Ry. Co., 605 F.3d 686, 690 (9th Cir. 2010). After an assessment of these factors, we find AAAP’s telemarketers were acting as independent contractors rather than as Royal’s agents. Therefore, Royal cannot be held vicariously liable for these telephone calls. Accordingly, the district court properly granted summary judgment in Royal’s favor.

CREEC V. Hospitality Properties Trust (9th Cir. 16-16269 8/9/17) ADA Title III//Standing/Class Certification/Deterrent Effect Doctrine


The panel affirmed the district court’s order denying plaintiffs’ motion for class certification in an action under Title III of the Americans with Disabilities Act regarding transportation services at hotels.


The panel held that the plaintiffs had standing to maintain this ADA suit. The panel held that a plaintiff who lacks firsthand knowledge that an establishment is not in ADA compliance may rely on the “deterrent effect doctrine” to establish constitutional standing under the ADA. Agreeing with the Tenth and Eleventh Circuits, the panel held that a plaintiff may also assert constitutional standing where her only motivation for visiting a facility is to test it for ADA compliance.


The panel held that the district court did not abuse its discretion in finding that the plaintiffs failed to meet the commonality requirement of Fed. R. Civ. P. 23(a), given the lack of consistent policies or practices across the hotels owned by the defendant but operated by others.


Concurring in part and dissenting in part, District Judge Morris concurred in the majority’s analysis of standing. Dissenting from the majority’s determination that the district court did not abuse its discretion in denying class certification, Judge Morris wrote that the plaintiffs satisfied the commonality and typicality requirements of Rule 23.

Light v. Calif. Dept. of Parks and Recreation (CA4/1 D070361 partial pub 8/8/17) FEHA Retaliation


Plaintiff Melony Light appeals judgments in favor of her employer, defendant California Department of Parks and Recreation (Department), and her former supervisors, defendants Leda Seals and Kathy Dolinar, following orders granting defendants' motions for summary judgment.  Light contends the trial court erred by summarily adjudicating her claims against the Department for retaliation, disability discrimination, and failure to prevent retaliation and discrimination, all in violation of the Fair Employment and Housing Act (FEHA; Gov. Code, § 12900 et seq.).   She also contends the trial court erred by summarily adjudicating her claims against Seals for intentional infliction of emotional distress and assault and summarily adjudicating her claim against Dolinar for intentional infliction of emotional distress.  The court also summarily adjudicated an additional claim against Seals, for false imprisonment, but Light does not challenge that ruling in this appeal.


As to the Department, we conclude triable issues of material fact preclude summary adjudication of Light's retaliation claim, but not her disability discrimination claim.  Light's claim against the Department for failure to prevent retaliation or discrimination therefore survives based on Light's retaliation claim.  As to Seals and Dolinar, we conclude contrary to the trial court that workers' compensation exclusivity does not bar Light's claim for intentional infliction of emotional distress under the circumstances here.  However, as to the merits of that claim, we conclude Light has raised a triable issue of fact only as to Seals, not Dolinar.  We further conclude Light has raised triable issues of fact on her assault claim against Seals.  We will therefore affirm in part and reverse in part the judgments in favor of the Department and Seals, and we will affirm in full the judgment in favor of Dolinar.  Because our discussion of the interplay between workers’ compensation exclusivity and intentional infliction of emotional distress addresses an important legal issue, and our interpretation differs from a recent opinion by our colleagues in Division Three of this court, we will publish that discussion, as well as our discussion of the FEHA retaliation claim on which it relies.  Because our discussions of Light’s FEHA disability discrimination and assault claims raise no similar issues, they remain unpublished.


Bill Signed by Governor (8/7/17)


  • AB 872 by Assemblymember Ed Chau (D-Monterey Park) - School employees: employment: sex offenses.


Hill v. Xerox Business Services (9th Cir. 14-36029 8/7/17) Washington Minimum Wage Act/Piecemeal Work


This case arises from a dispute between Tiffany Hill (“Hill”) and Xerox Business Services, LLC and its predecessor companies (collectively, “Xerox”), over the method by which Xerox calculated wages owed to Hill and others similarly situated. Hill brought a statewide class action lawsuit against Xerox for unpaid wages under the Washington Minimum Wage Act (“MWA”), Wash. Rev. Code § 49.46 et seq., and the Washington Consumer Protection Act, Wash. Rev. Code § 19.86 et seq. This interlocutory appeal involves only Hill’s claims under the MWA.


Under Washington law, when an employee is paid on a piecework basis, as opposed to an hourly basis, it is permissible for an employer to determine whether the employee’s compensation complies with the MWA on the basis of a work-week period. See Wash. Admin. Code § 296-126-021; Dept. of Labor and Indus. Admin. Policy ES.A.3. In other words, as long as the total wages paid for a given week, divided by the total hours worked that week, averages to at least the applicable minimum wage, an employee’s compensation complies with Washington law. On the other hand, if an employee is an hourly employee, he “retain[s] a per-hour right to minimum wage under Washington law,” and weekly averaging is not permitted. Alvarez v. IBP, Inc., 339 F.3d 894, 912 (9th Cir. 2003); see also Wash. Rev. Code § 49.46.020.


The parties do not dispute the applicability of Washington’s framework for determining whether an employer’s compensation plan complies with Washington’s minimum wage law. Rather, they dispute whether Hill was an hourly employee or a piecework employee. Hill claims that she was an hourly employee and therefore Xerox violated the MWA by determining her hourly wage based on a workweek, as opposed to a per-hour, calculation. Xerox, in contrast, contends that Hill was a piecework employee and therefore its work-week calculations were sanctioned by Washington Administration Code Section 296-126-021. In the district court, Xerox moved for partial summary judgment on this issue, which the district court denied, stating that Xerox was not paying its employees on a piecework basis, and therefore summary judgment was inappropriate. After denying a motion to reconsider, the district court certified Xerox’s request for an immediate interlocutory appeal of its denial of partial summary judgment. We granted Xerox’s request, and this appeal followed. We have jurisdiction pursuant to 28 U.S.C. § 1292(b).


This order certifies to the Washington Supreme Court the dispositive question of state law before us—namely, whether an employer’s payment plan, which includes as a metric an employee’s “production minutes,” qualifies as a piecework plan under Washington Administrative Code Section 296-126-021?


Arnaudo Brothers v. Agricultural Labor Relations Bd. (CA5 F072420 8/7/17) ALRB/Disclaimer Defense


This writ proceeding addresses decisions by the Agricultural Labor Relations Board (Board) that an agricultural employer committed unfair labor practices by refusing to bargain with, and provide information to, the United Farm Workers of America (Union).  The employer’s defense was that in the early 1980’s, the Union expressly disclaimed any interest in representing the bargaining unit -- a disclaimer reinforced by the Union’s 30 years of inactivity.  The Board rejected the employer’s disclaimer defense to the failure to bargain charge, because the purported disclaimer was not clear and unequivocal.  The Board also awarded make whole relief based on the determination that the employer’s litigation of the disclaimer issue did not further the policies and purpose of the Agricultural Labor Relations Act of 1975 (Lab. Code, §§ 1140-1166.3).   The employer contends the Board erred in rejecting its disclaimer defense and in concluding make whole relief was appropriate. 


Our conclusions about the purported disclaimer of interest are limited to situations where disclaimer is raised as a defense to an unfair labor practices charge based on the failure to bargain.  In that limited context, the Board correctly identified and applied the rules that define when a certified union has made a disclaimer of interest in representing the bargaining unit.  The Board did not err in determining (1) the statement by the Union representative that “we’re through with you” (if made) was not a clear and unequivocal disclaimer of interest and (2) subsequent conduct consistent with a disclaimer could not render the equivocal disclaimer effective.  Thus, the Board did not err when it rejected the employer’s disclaimer defense to the charge that employer failed to bargain with the Union.


In contrast, we conclude the Board’s awarding of make whole relief was based on an erroneous determination that the litigation of the employer’s position relating to the disclaimer defense did not further the policies and purposes of the Agricultural Labor Relations Act.  The Board failed to consider how the Union’s 30 years of inactivity and employee turnover is related to the current employees’ right to freedom of association, which includes the right to refrain from collectively bargaining and the right to a representative “of their own choosing.”  (§§ 1140.2, 1152.)  We conclude the public interest was furthered by the litigation of the disclaimer issue and, therefore, make whole relief was not “appropriate” for purposes of section 1160.3. 


We therefore reverse only the part of the Board’s decisions awarding make whole relief.

Mendoza v. Nordstrom (9th Cir. 12-57130 8/3/17) PAGA/Day of Rest Law


The panel affirmed the district court’s dismissal of plaintiffs’ California Labor Code Private Attorneys General Act of 2004 (“PAGA”) claims against Nordstrom, Inc. alleging violations of California’s “day of rest” law.


Cal. Lab. Code § 551 grants employees a right to one “day’s rest” in seven. Cal. Lab. Code § 552 provides that no employer “shall cause his employees to work more than six days in seven.”


In an earlier order, the panel certified three questions of state law to the California Supreme Court, and the Supreme Court accepted certification and answered the questions, Mendoza v. Nordstrom, Inc., 393 P.3d 375 (Cal. 2017).


The panel held that the stipulated facts demonstrated that neither plaintiff worked more than six consecutive days in any one Nordstrom work week, and each of their individual claims under California Labor Code sections 551 and 552 failed. The panel rejected plaintiffs’ claim that the case must be remanded to permit a new PAGA representative who did suffer violations of sections 551 and 552 to “step forward” and continue litigating the dispute.


Window Rock USD v. Nez (9th Cir. 13-16259 8/3/17) Employment/Tribal Jurisdiction


The panel reversed the district court’s decision enjoining tribal forum proceedings on employment-related claims against two Arizona public school districts operating schools on leased tribal land.


The panel held that it was “colorable or plausible” that the tribal adjudicative forum, the Navajo Nation Labor Commission, had jurisdiction because the claims arose from conduct on tribal land over which the Navajo Nation had the right to exclude nonmembers, and the claims implicated no state criminal law enforcement interests. Well-established exhaustion principles therefore required that the tribal forum have the first opportunity to evaluate its own jurisdiction, including the nature of the state and tribal interests involved.


The panel reaffirmed that there exist two distinct frameworks for determining whether a tribe has jurisdiction over a case involving a non-tribal-member defendant: (1) the right to exclude, which generally applies to nonmember conduct on tribal land; and (2) the exceptions articulated in Montana v. United States, 450 U.S. 544 (1981), which generally apply to nonmember conduct on non-tribal land. The panel held that Nevada v. Hicks, 533 U.S. 353 (2001) (addressing concerns related to enabling state officers to enforce state criminal laws for crimes that occurred off the reservation), did not eliminate the right-to-exclude framework, such that jurisdiction over a nonmember exists only if a Montana exception applies, regardless of whether the relevant conduct occurred on tribal or non-tribal land. The panel held that the court’s caselaw left open the question of what state interests might be sufficient to preclude tribal jurisdiction over disputes arising on tribal land; therefore, tribal jurisdiction was plausible enough that exhaustion was required.


The panel reversed the district court’s summary judgment in favor of the plaintiff school districts and remanded with instructions to dissolve the injunction and dismiss the case for failure to exhaust.


Dissenting, Judge Christen wrote that the majority’s opinion created a split with the Seventh, Eighth, and Tenth Circuits. She wrote that tribal jurisdiction was neither colorable nor plausible because Montana and the Supreme Court authority that followed it make clear that the inherent sovereign powers of Indian tribes generally do not extend to the activities of nonmembers. Judge Christen wrote that she disagreed with the majority’s holding that unless a state is seeking to enforce its criminal laws, Montana does not apply to nonmember conduct on tribal land even in the presence of clear competing state interests. In addition, the majority gave short shrift to the school districts’ obligation to operate public schools within the Navajo Reservation’s boundaries.

Esparza v. KS Industries (CA5 F072597 8/2/17) PAGA/Civil Penalties


Defendant KS Industries, L.P. appeals from an order denying its motion to compel arbitration of a dispute with a former employee.  The employee contends the lawsuit is a representative action under the Private Attorneys General Act of 2004 (PAGA).  (Lab. Code, § 2698 et seq.)  He argues the trial court properly applied the rule adopted in Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348 (Iskanian) and concluded the lawsuit was a PAGA representative action not subject to arbitration.


KS Industries contends the trial court’s failure to order arbitration of some of the claims violated the Federal Arbitration Act (9 U.S.C. § 1 et seq.) because those claims sought individualized (i.e., victim-specific) relief and were covered by the parties’ arbitration agreement.  KS Industries contends the rule adopted in Iskanian prevents the arbitration of claims only in representative actions that seek “civil penalties,” a term of art that is limited to monetary relief allocated 75 percent to the Labor and Workforce Development Agency and 25 percent to the aggrieved employees.  In KS Industries’ view, “civil penalties” do not include unpaid wages payable solely to the aggrieved employee.  We agree.


The Federal Arbitration Act plays a central role in this appeal.  If the act requires a claim to be arbitrated, a contrary rule of state law must give way because of federal preemption.  The Federal Arbitration Act requires the enforcement of arbitration agreements covering private disputes.  Here, the arbitration agreement is worded to cover claims arising from the employment relationship, which includes the employee’s claims for unpaid wages and other types of victim-specific relief.  The State of California is not a party to the agreement and, thus, claims brought by it or on its behalf are not subject to arbitration.  Therefore, under the Federal Arbitration Act, the claims that are private disputes between the employee and KS Industries must be arbitrated and the claims brought on behalf of the State of California need not be arbitrated.  The rule adopted in Iskanian attempted to define the boundary between the two types of claims by stating that PAGA representative claims for civil penalties are not subject to arbitration.   We conclude that, for purposes of the Iskanian rule, PAGA representative claims for civil penalties are limited to those where a portion of the recovery is allocated to the Labor and Workforce Development Agency.  Claims for unpaid wages based on Labor Code section 558 are not allocated in this manner and, therefore, the Iskanian rule does not exempt such claims from arbitration. 


Applying the foregoing interpretation of the Iskanian rule and its term of art, civil penalties, to this litigation, we conclude some of the claims the employee is pursuing are PAGA representative claims that seek civil penalties.  Under the Iskanian rule, those claims are not subject to arbitration.  Our analysis does not end with that conclusion because the employee intended to pursue private claims for victim-specific relief, such as claims to recover wages under Labor Code section 558.  The Iskanian rule does not exempt such claims from arbitration.  This intention was based on the employee’s misinterpretation of the Federal Arbitration Act, the PAGA and Iskanian.  Before this litigation proceeds, the employee shall be required to clearly state whether he will continue to pursue the claims to recover wages under Labor Code section 558 that are subject to arbitration.  Accordingly, we remand for further proceedings to allow the employee to unambiguously state his intention.  Once his intention is clear, the trial court shall enter an appropriate order.  


We therefore affirm the order insofar as it denies arbitration of the representative claims for civil penalties and remand for further proceedings.

Mull v. Motion Picture Industry Health Plan (9th Cir. 15-56246 8/1/17) ERISA


The panel vacated the district court’s grant of summary judgment in favor of the plaintiffs in an ERISA action. The district court enjoined an ERISA plan and its board of directors from enforcing Summary Plan Description provisions regarding reimbursement of benefits previously paid upon a plan participant’s receipt of a third-party recovery. The district court ruled that these reimbursement/recoupment provisions were not enforceable under ERISA because they were found only in the Summary Plan Description and not in any document that constituted the ERISA plan.


The panel concluded that a Motion Picture Industry Plan Agreement and Declaration of Trust, along with the Summary Plan Description, together comprised the ERISA plan because only the Summary Plan Description provided the basis on which payments were made to and from the plan. The panel distinguished CIGNA Corp. v. Amara, 563 U.S. 421 (2011), which held that summary documents do not constitute the terms of an ERISA plan when there exist both a governing plan document and a summary plan description. The panel vacated the district court’s grant of summary judgment and remanded for further proceedings.

Bills Signed by Governor (7/31/17)

  • AB 1615 by Assemblymember Eduardo Garcia (D-Coachella) - Gender discrimination: civil actions.

  • AB 1690, Committee on Judiciary. Personal rights: compensatory relief.

Fuller v. Idaho Dep't of Corp. (9th Cir. 14-36110 7/31/17) Sexual Harassment


The panel vacated the district court’s grant of summary judgment in favor of the defendant on a Title VII hostile work environment claim brought by a plaintiff who was raped by an Idaho Department of Corrections co-worker.


The panel held that the plaintiff proffered sufficient admissible evidence to avoid summary judgment. Viewing the facts in the light most favorable to the plaintiff, the panel held that she had raised triable issues of fact as to whether the IDOC’s actions following the rape were sufficiently severe or pervasive to create a hostile work environment. The panel held that if a jury found that the plaintiffs’ IDOC supervisors created a hostile work environment, then the IDOC would be vicariously liable.


In a concurrently filed memorandum disposition, the panel affirmed the district court’s summary judgment to the IDOC on other claims. It remanded for a trial on the hostile work environment claim.


Dissenting, Judge Ikuta wrote that the evidence in the record did not show discrimination because of the plaintiff’s sex, as is required to establish an employer’s liability under Title VII.

Minnick v. Automotive Creations, Inc. (CA4/1 D070555 7/28/17) Vacation Pay/PAGA


Nathan Minnick sued his former joint employers, Automobile Creations, Inc. and Dynamic Auto Images, Inc. (defendants), alleging their vacation policy violated state law because it required employees who worked for less than one year to forfeit vested vacation pay.  Minnick brought the action individually and on behalf of all similarly situated employees, and sought penalties under California's Labor Code Private Attorney General Act of 2004 (PAGA) (Lab. Code, § 2698 et seq.). 


The court sustained defendants' demurrer without leave to amend on Minnick's second amended complaint.  We affirm.  Defendants' vacation policy lawfully provided that employees do not begin to earn vacation time until after their first year.  Because Minnick's employment ended during his first year, he did not have any vested or accrued vacation pay.  Thus, he was not owed any vacation wages.  (See Owen v. Macy's, Inc. (2009) 175 Cal.App.4th 462 (Owen).)


Boling v. Public Employment Relations Bd., 10 Cal.App.5th 853 (2017) (S242034/D069626/D069630 rev. granted 7/27/16) Standard of Review/Duty to Meet and Confer


Petition for review after the Court of Appeal annulled a decision of the Public Employment Relations Board. This case includes the following issues: (1) When a final decision of the Public Employment Relations Board under the Meyers-Milias-Brown Act (Gov. Code, §§ 3500 et seq.) is challenged in the Court of Appeal, what standard of review applies to the Board’s interpretation of the applicable statutes and its findings of fact? (2) Is a public agency’s duty to “meet and confer” under the Act limited to situations in which the agency’s governing body proposes to take formal action affecting employee wages, hours, or other terms and conditions of employment?



Court of Appeal Decision

Kizer v. Tristar Risk Management (CA4/3 G052558, filed 6/26/17, pub. ord. 7/26/17) Class Certification


Plaintiffs and appellants Valerie Kizer and Sharal Williams (collectively, Plaintiffs) filed this putative class action against their former employer, defendant and respondent Tristar Risk Management (Tristar), alleging Tristar failed to pay Plaintiffs and its other claims examiners overtime compensation because it misclassified them as exempt from California’s overtime laws.


After twice continuing the hearing for supplemental briefing and evidence, the trial court denied Plaintiffs’ class certification motion because they failed to present substantial evidence showing their claims were typical of the proposed class and common issues of law or fact predominated.  The court found Tristar’s alleged misclassification of the proposed class members suitable for class treatment, but it denied the motion because misclassification does not give rise to liability on an overtime claim unless the employees first show they worked hours or days that required overtime compensation.  The court explained Plaintiffs failed to present evidence showing Tristar had a generally applicable policy or practice that required employees to work overtime, and therefore Plaintiffs failed to show they could establish Tristar’s liability based on proof common to all class members.  Consequently, the court concluded class treatment of Plaintiffs’ claims was not appropriate.


Plaintiffs contend the trial court erred because the amount of overtime worked by the individual class members is a damages issue, and the need for individual proof of damages is not a proper basis for denying class certification.  Plaintiffs, however, misconstrue the governing legal standards and the basis for the court’s ruling.


The trial court did not deny the motion based on Plaintiffs’ failure to show the amount of overtime worked by each putative class member.  Rather, the court denied the motion because Plaintiffs failed to show that whether the putative class members worked any overtime at all was subject to common proof.  To satisfy the commonality requirement for class certification, Plaintiffs were required to show their liability theory could be established on a classwide basis through common proof.  Typically, in overtime claims, plaintiffs show this by presenting evidence of an employer policy or practice that generally required the class members to work overtime.  Plaintiffs presented no evidence of any such policy or practice.


Plaintiffs also contend the trial court erred in refusing class certification on their claim under California’s unfair competition law (UCL; Bus. & Prof. Code, § 17200 et seq.).  According to Plaintiffs, the UCL authorizes restitution and other relief without a showing that each class member individually suffered injury, and therefore Plaintiffs’ were not required to present evidence of the amount of overtime each putative class member worked.  Plaintiffs again misconstrue the governing law.  The cases Plaintiffs cite address standing to bring a UCL claim; they do not address the showing required to obtain class certification.  As explained below, the governing case law makes clear that, aside from standing, a plaintiff seeking class certification on a UCL claim still must establish common issues of law or fact predominate, the representative’s claim is typical of the class, and all other elements required for class certification.  Because substantial evidence supports the court’s decision Plaintiffs failed to make that showing, we affirm the court’s decision to deny class certification.


Bonni v. St. Joseph Health System (CA4/3 G052367 7/26/17) Retaliation/Whistleblower Statute


Plaintiff Aram Bonni, a surgeon, sued St. Joseph Hospital of Orange (St. Joseph), Mission Hospital Regional Medical Center (Mission), and other defendants for, inter alia, retaliation under Health and Safety Code, section 1278.5 (the whistleblower statute).   Plaintiff alleged defendants retaliated against him for his whistleblower complaints by summarily suspending his medical staff privileges and conducting hospital peer review proceedings.


In response to plaintiff’s filing of his first amended complaint (FAC), defendants filed a special motion under Code of Civil Procedure section 425.16 (the anti-SLAPP statute) to strike plaintiff’s retaliation cause of action, asserting his claim arose from the protected activity of hospital peer review proceedings.


The court granted defendants’ anti-SLAPP motion as to both St. Joseph and Mission.  The court determined, first, that defendants had met prong one of the anti-SLAPP statute’s two-part test, which requires a moving defendant to show the plaintiff’s claim arose from activity protected under that statute.  (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67 (Equilon).)


The court then proceeded to prong two of the anti-SLAPP test, which requires a plaintiff to show a probability of prevailing on his or her claim.  (Equilon, supra, 29 Cal.4th at p. 67.)  The court concluded plaintiff’s proof failed as to both defendants.


Bills Signed by Governor (7/24/17)


  • AB 170 by Assemblymember Patrick O'Donnell (D-Long Beach) - Teacher credentialing.

  • AB 585 by Assemblymember Mike A. Gipson (D-Carson) - Public officers.

  • AB 590 by Assemblymember Jose Medina (D-Riverside) - Public employees' retirement: membership election.

  • AB 1093 by Assemblymember Phillip Chen (R-Diamond Bar) - Service of process.

  • AB 1440 by Assemblymember Ash Kalra (D-San Jose) - Peace officers.

  • AB 1693 by the Committee on Judiciary - Civil actions: intervention.

  • AB 1695 by the Committee on Insurance - Unemployment insurance.

ILWU V. ICTSI Oregon (9th Cir. 14-35504 7/24/17) LMRA § 301/Antitrust


The panel affirmed the district court’s dismissal of an antitrust claim alleging anticompetitive activities engaged in jointly by a labor union and a multi-employer collective bargaining association.


The panel held that the district court did not err in entering partial final judgment under Federal Rule of Civil Procedure 54(b) on an antitrust counterclaim in an action brought under § 301 of the Labor Management Relations Act.


The panel affirmed the district court’s conclusion that the antitrust issues were discrete and complex, and that the entry of partial final judgment would not result in duplicative proceedings.


The panel held that the counterclaimant had standing to challenge an alleged antitrust conspiracy redounding to the benefit of the collective bargaining association even though it was a member of the association.


The panel held that the Noerr-Pennington doctrine immunized the counterclaim defendants from antitrust liability for their conduct in filing lawsuits because they did not engage in sham litigation.


The panel held that the remainder of the counterclaim defendants’ alleged joint activity was immunized from antitrust liability under § 1 of the Sherman Act because of the nonstatutory labor exemption. The panel concluded that under the Mackey test, the alleged agreement restraining trade primarily affected the parties to the agreement and no one else; the agreement concerned wages, hours, or conditions of employment that were mandatory subjects of collective bargaining; and the agreement was produced from bona fide, arm’s length collective bargaining. The panel held that an agreement that violates labor law does not always fail the second prong of the Mackey test.


Judge Clifton concurred entirely in the result and reasoning of the disposition as to the merits of the appeal. He wrote separately to express concern over the district court’s decision to enter partial final judgment under Rule 54(b), and agreed with the opinion’s admonition that a preferable approach would have been for the district court to certify its order for interlocutory appeal.


Bills Signed by Governor (7/21/17)


  • AB 949 by Assemblymember Mike A. Gipson (D-Carson) – School employees: contracts: sole proprietors: criminal background checks.

  • AB 1339 by Assemblymember Jordan Cunningham (R-San Luis Obispo) – Public employment: background investigations.

  • AB 1711 by the Committee on Veterans Affairs – State military reserve personnel: leave benefits.

  • SB 621 by Senator Steven Bradford (D-Gardena) – Overtime compensation: private school teachers.


Bills signed by Governor (7/18/17)


  • SB 324 by Senator Richard Roth (D-Riverside) – Public officers: custodial officers.

  • SB 671 by Senator John Moorlach (R-Costa Mesa) – County employees’ retirement: retirement funds: transfers.


Lehman v. Nelson (9th Cir. 15-35414 7/14/17) Pension Protection Act of 2006


The panel affirmed in part and reversed in part the district court’s judgment in favor of the plaintiffs in an ERISA class action concerning a pension fund.


After the trustees of the IBEW Pacific Coast Pension Fund learned that it would soon enter “critical status” under the Pension Protection Act of 2006, they amended the pension plan twice, in Amendments 14 and 24, and began withholding at least $1.00 per hour from all employer contributions to improve the plan’s funding status. The named plaintiff was a “traveler” who worked in the jurisdictions of various local union pension funds, and his employers in those jurisdictions contributed to the local funds for the areas in which the work was performed. Under a reciprocal agreement among home funds, the plaintiff’s employer contributions were transferred to his home pension fund. Under Amendment 14, the Pacific Coast Fund withheld $1.00 per hour that the plaintiff worked in the Fund’s jurisdiction.


The district court granted summary judgment in favor of the plaintiff in part, ruling that the trustees abused their discretion as plan administrator in interpreting Amendment 14’s $1.00 withholding to apply to reciprocal transfers. The district court also certified a plaintiffs’ class. In a clarifying order, the district court ruled that its previous orders also applied to withholding under Amendment 24, and it awarded damages for withholdings under both amendments.


The panel held that only Amendment 14 was fully litigated before the district court, and vacated the damages award for withholdings under Amendment 24 because the trustees did not have notice that those withholdings were at issue, nor an opportunity to respond. Affirming the damages award for withholdings under Amendment 14, the panel held that the district court correctly interpreted the interaction between Amendment 14, Article 5 of the pension plan, and the reciprocal agreement. The panel concluded that the district court erred by ruling, in the alternative, that interpretation of Amendment 14 to apply to travelers who worked in the Pacific Coast Fund’s jurisdiction on a temporary basis violated ERISA § 305. The panel remanded for further proceedings on the withholdings under Amendment 24.


The panel also vacated the district court’s award of attorneys’ fees. It declined to reach the plaintiffs’ issues on cross-appeal.


Williams v. Super. Ct. (SC S227228 7/13/17) PAGA/Discovery


This is a representative action seeking civil penalties on behalf of the State of California and aggrieved employees statewide for alleged wage and hour violations.  (See Lab. Code, § 2698 et seq., the Labor Code Private Attorneys General Act of 2004, hereafter PAGA.)  In the course of discovery, plaintiff Michael Williams sought contact information for fellow California employees.  When the defendant employer, Marshalls of CA, LLC, resisted, Williams filed a motion to compel.  The trial court granted the motion as to the store where Williams worked, but denied it as to every other California store, conditioning any renewed motion for discovery on Williams sitting for a deposition and showing some merit to the underlying action.  Williams petitioned the Court of Appeal to compel the trial court to vacate its discovery order.  The Court of Appeal denied the writ, and we granted review to consider the scope of discovery available in PAGA actions.


In the absence of privilege, the right to discovery in this state is a broad one, to be construed liberally so that parties may ascertain the strength of their case and at trial the truth may be determined.  Our prior decisions and those of the Courts of Appeal firmly establish that in non-PAGA class actions, the contact information of those a plaintiff purports to represent is routinely discoverable as an essential prerequisite to effectively seeking group relief, without any requirement that the plaintiff first show good cause.  Nothing in the characteristics of a PAGA suit, essentially a qui tam action filed on behalf of the state to assist it with labor law enforcement, affords a basis for restricting discovery more narrowly.  Nor, on this record, do other objections interposed in the trial court support the trial court’s order.  We reverse.


Assn. for L.A. Deputy Sheriffs v. Super. Ct. (CA2/8 B280676 7/11/17) Pitchess Statutes


The primary issue in this case is whether the nearly 40-year-old California statutory scheme that governs discovery of peace officer personnel records, when applied to criminal cases, violates due process and is therefore unconstitutional.


Petitioner, the Association for Los Angeles County Deputy Sheriffs (ALADS), is the union that represents non-supervisory Los Angeles County Sheriff‟s deputies. Real party in interest, Jim McDonnell, is the duly elected Sheriff of Los Angeles County (real party). Other real parties in interest include the Los Angeles County Sheriff's Department (LASD), Los Angeles County, and Does one through 50 (collectively real parties).


In Brady v. Maryland (1963) 373 U.S. 83, 87 (Brady), the United States Supreme Court held that constitutional due process creates an affirmative obligation on the part of the prosecution, whether or not requested by the defense, to disclose all evidence within its possession that is exculpatory to a criminal defendant. Exculpatory evidence under Brady includes impeachment evidence. (Giglio v. United States (1972) 405 U.S. 150, 153–155 (Giglio).) The prosecution’s disclosure obligation under Brady extends not only to evidence in its immediate possession, but also to evidence in the possession of other members of the prosecution team, including law enforcement. (In re Steele (2004) 32 Cal.4th 682, 697, citing Kyles v. Whitley (1995) 514 U.S. 419, 437.)


Eleven years after Brady, the California Supreme Court, in Pitchess v. Superior Court (1974) 11 Cal.3d 531, 537 (Pitchess), held that under certain circumstances, and upon an adequate showing, a criminal defendant may discover information from a peace officer’s otherwise confidential personnel file that is relevant to his or her defense. The California Legislature eventually codified what became known as Pitchess motions in Penal Code sections 832.7 and 832.8, as well as Evidence Code sections 1043 through 1045 (collectively, the Pitchess statutes). (People v. Mooc (2001) 26 Cal.4th 1216, 1219–1220 (Mooc).)


Generally speaking, the Pitchess statutes require a criminal defendant to file a written motion that establishes good cause for the discovery sought. If such a showing is made, the trial court then reviews the law enforcement personnel records in camera with the custodian, and discloses to the defendant any relevant information from the personnel file. (Mooc, at p. 1226.)


Absent compliance with these procedures, peace officer personnel records, as well as information from them, are confidential and shall not be disclosed “in any criminal or civil proceeding[.]” (§ 832.7, subds. (a) & (f).) Records that cannot be disclosed absent compliance with the Pitchess procedures include the names or identities of peace officers to the extent such a disclosure also links the officers to disciplinary investigations in their personnel files. (Copley Press, Inc. v. Superior Court (2006) 39 Cal.4th 1272, 1297–1299 (Copley Press); accord Long Beach Police Officers Assn. v. City of Long Beach (2014) 59 Cal.4th 59, 71–73 (Long Beach); Commission on Peace Officers Standards & Training v. Superior Court (2007) 42 Cal.4th 278, 295, 298–299 (POST).) Prosecutors do not have a superior right of access to law enforcement personnel files, and must also comply with the Pitchess statutes to obtain information from them. (People v. Superior Court (Johnson) (2015) 61 Cal.4th 696, 714 (Johnson).)


In this case, the LASD created a so-called “Brady” list of deputies whose personnel files contain sustained allegations of misconduct allegedly involving moral turpitude or other bad acts relevant to impeachment. The LASD proposed to disclose that list to the district attorney, as well as to other prosecutorial agencies that handle LASD investigations, so that prosecutors in individual cases could file Pitchess motions to discover the underlying misconduct or advise the defense of the disclosure so the defense could file its own Pitchess motion. ALADS opposed disclosure of the Brady list and filed the immediate action. ALADS' lawsuit seeks, in part, an injunction that prohibits disclosure of the list or any individual on the list to anyone outside the LASD, including prosecutors, absent complete compliance with the Pitchess statutes described above.


After full briefing, the trial court filed a thorough and lengthy written tentative ruling. After oral argument, and consistent with that tentative, the court issued a preliminary injunction which prohibits general disclosure of the Brady list to the district attorney or other relevant prosecutors. Consistent with Copley PressPOST, and Long Beach, the trial court determined that such a disclosure, because it identifies administratively disciplined deputies by name in the absence of a properly filed, heard, and granted Pitchess motion, violates the Pitchess statutes.


The injunction, however, expressly allows disclosure of individual deputies from the list to prosecutors, in the absence of compliance with Pitchess statutes, so long as any disclosed deputy is also a potential witness in a pending criminal prosecution. The trial court acknowledged that such a disclosure also violates the Pitchess statutes. The trial court, however, held that a filed criminal case triggers Brady and that the LASD, as part of the prosecution team, then has a “Brady obligation” to disclose exculpatory evidence in its possession. Because of this obligation, the LASD, in the language of the trial court’s injunction, “may” notify the prosecutor––in the absence of a fully litigated and granted Pitchess motion––that the identified deputy has a founded administrative allegation of misconduct relevant to his or her credibility.


The trial court’s finding that, because of its “Brady obligation,” the LASD “may” violate the Pitchess statutes‟ disclosure prohibition, is, in our opinion, identical to finding that the Pitchess statutes‟ disclosure prohibition is unconstitutional in the particular context of a filed prosecution wherein a Brady list deputy is a witness. There is simply no lawful way judicially to approve a violation of state law unless compelled to do so by a higher authority: in this case, the United States Constitution as construed in Brady. Also, Brady disclosure is an affirmative, sua sponte, obligation of the prosecution team, meaning the prosecution is required to turn over all exculpatory information in its possession to the defense whether or not the defense requests it. Therefore, to the extent Brady creates a disclosure obligation that overrides Pitchess confidentiality,  it is mandatory rather than permissive, no matter how the injunction itself is worded. And, if Brady compels the LASD to violate state law in this fashion, by disclosing the identity of a Brady list deputy in the absence of a fully litigated and granted Pitchess motion where a deputy is also a witness in a filed prosecution, then it compels every state and local law enforcement agency in California to do the same under the same or similar circumstances.


The affirmative disclosure obligation of the prosecution required by Brady and constitutional due process have now coexisted with a criminal defendant’s good cause burden under the Pitchess statutes for nearly 40 years. In that time frame, no reported case that we are aware of has found Pitchess or the Pitchess statutes to contravene Brady and thus violate the United States Constitution. In this case, real parties ask us to uphold the trial court’s injunction. As explained above, to do so would require us to find the Pitchess statutes unconstitutional insofar as they prohibit, absent compliance with their specific procedures, disclosure to prosecutors of deputies from the Brady list who are also potential witnesses in a pending criminal prosecution. ALADS disagrees that Brady and constitutional due process compel disclosure in the absence of compliance with Pitchess, even if the deputy is a potential witness in a pending criminal prosecution. ALADS seeks an order commanding the trial court to strike language that permits such disclosure from the injunction.


While we understand the appeal of a procedure intended to streamline the disclosure of information that guarantees a criminal defendant’s right to a fair trial, we do not write on a blank slate guided only by policy concerns. Both our Supreme Court and at least one Court of Appeal have examined the constitutionality of Pitchess and the Pitchess statutes in light of Brady and found no constitutional infirmity. It is our obligation to follow precedent, whether or not we agree with it; we have no authority, as an intermediate appellate court, to ignore precedent, jump ahead of our Supreme Court, and create new law. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 (Auto Equity Sales).)


Our review of the relevant cases convinces us that the current state of the law supports ALADS. We therefore grant the relief, described above, that ALADS seeks.


Bills signed by Governor (7/10/17)


  • AB 995 by Assemblymember Monique Limón (D-Santa Barbara) – County employee retirement: retirement board appointees: leave balances.

  • SB 84 by the Committee on Budget and Fiscal Review – Public Employees’ Retirement Fund: state employer contributions: supplemental payment.


Karczewski v. DCH Mission Valley (9th Cir. 15-55633 7/10/17) ADA Title III


The panel reversed the district court’s dismissal of a claim that the defendant automobile dealership violated Title III of the Americans with Disabilities Act by refusing to install temporary vehicle hand controls for test-drives of a car offered for sale.


The panel held that the plaintiff stated a claim under 42 U.S.C. § 12182(b)(2)(A)(ii), which requires a public accommodation to “make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford . . . goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities.”


The panel held that the plaintiff did not state a claim under § 12182(b)(2)(A)(iv), which requires the removal of architectural barriers in existing facilities, because the “barrier” that the plaintiff encountered could not reasonably be described as an architectural barrier in an existing facility. The barrier was the lack of hand controls in the defendant’s cars, and the cars that the defendant offered for sale were goods, not facilities.


The panel held that two implementing regulations, 28 C.F.R. §§ 36.307(a) and 36.306, did not preclude the plaintiff’s statutory claim.


Espejo v. The Copley Press (CA4/1 D065397 7/7/17) Class Award/Attorneys’ Fees/Prejudgment Award


Defendant The Copley Press, Inc., owner of the San Diego Union-Tribune newspaper (collectively UT), appeals from a second amended and restated judgment (the judgment) after a court trial in this class action brought by and on behalf of persons whom UT formerly engaged as newspaper home delivery carriers (plaintiffs or carriers).  The main issue at trial was whether the carriers were employees of UT or independent contractors.  The trial court decided the carriers were employees.


UT contends (1) the plaintiff class must be decertified because the class representatives were inadequate; (2) the court committed reversible error by not limiting the trial to certified issues and by granting plaintiffs' motion to amend their second amended complaint according to proof; (3) the class should be decertified and the judgment reversed because the court did not and could not manage individualized issues; (4) the court's order bifurcating plaintiffs' cause of action under Business and Professions Code section 17200  to be tried first deprived UT of its right to a jury trial; (5) the class award must be reversed because UT paid carriers enhanced compensation that reimbursed them for expenses the court awarded; (6) the amounts the court awarded were not restitution; (7) the court erred in awarding plaintiffs prejudgment interest; (8) substantial evidence does not support the court's determination that the carriers were employees rather than independent contractors; (9) the court erred in awarding plaintiffs attorney fees under Code of Civil Procedure section 1021.5;  (10) even if attorney fees could be awarded, the court erred by not substantially reducing them for limited success; and (11) the court erred by adopting plaintiffs' lodestar amount in awarding attorney fees.


Plaintiffs appeal the portion of the judgment awarding them attorney fees, contending (1) the court abused its discretion in not awarding an enhancement of the lodestar amount of their fees; and (2) the court erred in ruling they abandoned their cause of action for damages under Labor Code section 2802  and therefore could not recover attorney fees under that statute.  We affirm in part and reverse in part the judgment with directions to redetermine the class award, attorney fees, and prejudgment interest as explained below.

Santa Ana Police Off. Assn. v. City of Santa Ana (CA4/3 G053126, filed 6/13/17, pub. ord. 7/6/17) Public Safety Officers Bill of Rights Act


Two City of Santa Ana Police officers (Doe Officer 1 and Doe Officer 2) were the subjects of an internal affairs investigation based on their conduct during the execution of a search warrant at a marijuana dispensary.  The Santa Ana Police Department initiated the investigation after video recordings of the officers were released to the media.  The video recordings were made by the dispensary owners without the knowledge of the officers, who had removed all known recording devices before executing the warrant.


Plaintiffs Santa Ana Police Officers Association (SAPOA), Doe Officer 1, and Doe Officer 2 (collectively referred to as Plaintiffs) brought this lawsuit against the City of Santa Ana, the Santa Ana Police Department, and the Santa Ana Chief of Police (collectively referred to as Defendants) and asserted two causes of action arising out of the investigation.  In the first cause of action, Plaintiffs alleged that Defendants violated the California Invasion of Privacy Act, Penal Code section 630 et seq., by using the video recordings made at the marijuana dispensary as the basis for, and as evidence in, the internal affairs investigation.  In the second cause of action, Plaintiffs alleged that Defendants violated Government Code section 3303, subdivision (g) (section 3303(g)), part of the Public Safety Officers Bill of Rights Act, Government Code section 3300 et seq., by refusing to produce tape recordings of the initial interrogations of the officers, transcribed stenographer notes, and any reports or complaints made by the investigators or other persons, before interrogating the officers a second time.


The trial court sustained, without leave to amend, Defendants demurrer to the first amended complaint (the Complaint).  Plaintiffs appealed that decision.   We affirm the judgment as to the first cause of action and reverse as to the second cause of action. 


We conclude the Complaint does not, and cannot, state a violation of the California Invasion of Privacy Act because Doe Officer 1 and Doe Officer 2 had no reasonable expectation as a matter of law that their communications during the raid of the marijuana dispensary were not being overheard, watched, or recorded.  We also conclude, however, the second cause of action states a cause of action for violation of the Public Safety Officers Bill of Rights Act because, under section 3303(g), Defendants were required to produce the tape recordings of the initial interrogations, transcribed stenographer notes, and reports and complaints made by the investigators or other persons, before Doe Officer 1 and Doe Officer 2 were interrogated a second time.

McKeen-Chaplin v. Provident Savings Bank (9th Cir. 15-16758 7/5/17) FLSA Overtime/Mortgage Underwriters


Reversing the district court’s grant of summary judgment in favor of the defendant in an action under the Fair Labor Standards Act, the panel held that mortgage underwriters were entitled to overtime compensation for hours worked in excess of forty per week.


Applying the analysis used by the Second Circuit, rather than the Sixth Circuit, the panel held that, because the mortgage underwriters’ primary job duty did not relate to their employer bank’s management or general business operations, the administrative employee exemption to the Act’s overtime requirements did not apply.


Demetris v. TWUA (9th Cir. 15-15229 7/5/17) Railway Labor Act/Duty of Fair Representation


The panel filed an amended opinion affirming the district court’s dismissal of two consolidated actions brought under the Railway Labor Act, in which union members alleged that a union breached the duty of fair representation in the decision to distribute the proceeds of a bankruptcy settlement to all of its members unevenly.


American Airlines, Inc. and American Eagle Airlines, Inc. filed for Chapter 11 bankruptcy and negotiated new collective bargaining agreements with Transport Workers Union of America, AFL-CIO, which represented mechanics, fleet service workers, and other laborers. The new agreements cut pension and medical benefits for union members and granted the union a stake in the equity that would be granted to

unsecured creditors in the bankruptcy. The union and American also negotiated an early separation program whereby more senior union members could choose voluntarily to leave American in exchange for lump-sum cash payments.


Union members who took advantage of the early separation program alleged that the union breached its duty of fair representation by excluding them from the bulk of the equity distribution. The panel held that there was no breach of duty because the union’s conduct was not arbitrary, discriminatory, or in bad faith.


Cinema West v. Baker (CA1/2 A144265 6/30/17) Prevailing Wage Law/Public Works


This appeal concerns whether the construction of a movie theater built by Cinema West, LLC in Hesperia, California qualifies as a “public work” within the meaning of California’s prevailing wage law (Lab. Code, §§ 1720–1861) (the PWL), which provides that, with certain exceptions, the prevailing wage “shall be paid to all workers employed on public works.”  (§ 1771.)  In administrative proceedings initiated by a labor union, respondent Christine Baker, Director of the State Department of Industrial Relations (Director), concluded that it did.  Cinema West filed a petition for writ of mandate challenging the Director’s decision, which the superior court denied.  This appeal followed.  Applying substantial evidence review to the superior court’s factual findings and de novo review to its application of the PWL to the facts, we find no error and therefore affirm.


Alaska Airlines v. Schurke (9th Cir. 2017) 846 F.3d 1081 (9th Cir. 13-35574 rehg. en banc ord. 6/30/17) Railway Labor Act Preemption/Flight Attendants’ Family Leave


Upon the vote of a majority of nonrecused active judges, it is ordered that this case be reheard en banc pursuant to Federal Rule of Appellate Procedure 35(a) and Circuit Rule 35-3. The three-judge panel disposition in this case shall not be cited as precedent by or to any court of the Ninth Circuit.



3-Judge non-precedential opn.

Irvin v. Contra Costa County Employees' Retirement Assn. (CA1/1 A149642 6/30/17) Pension/ Surviving Spouse


Plaintiff Marianne Irvin and her late husband, Richard Irvin (respectively, Marianne and Richard), obtained a judgment of legal separation a few months before his death.  Notwithstanding the separation, the couple’s agreement dividing their assets reflected Richard’s intent that Marianne would receive the pension benefits available to a surviving spouse after his death.  Defendant Contra Costa County Employees’ Retirement Association Board of Retirement (Board), however, denied Marianne those benefits, concluding she was not Richard’s “surviving spouse” for purposes of the governing statute as a result of the legal separation.  In the absence of an applicable statutory definition for the term, the Board relied on the definition of “surviving spouse” found in the Probate Code.  In denying Marianne’s petition for a writ of mandate, the trial court accepted that rationale.


We reverse.  Because the entry of a judgment of legal separation does not terminate a marriage, but only separates a couple’s economic interests, the plain meaning of the term “surviving spouse” includes a legally separated person.  The Board has provided no persuasive reason for departing from this plain meaning.  While the Probate Code defines “surviving spouse” generally not to include a person who is legally separated, several substantive provisions of the Probate Code treat legally separated spouses in the same manner as a surviving spouse.  For that reason, no meaningful conclusion can be drawn from the Probate Code’s definition.  Further, the Board has not articulated any plausible public policy that would be furthered by the denial of continuance benefits in these circumstances.


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