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Reverse chronological e-mail alerts prepared pro bono for the California Lawyers Association (formerly State Bar of California) Labor & Employment Law Section, unofficially since 2003 and officially since 2007, covering California, 9th Circuit and US Supreme Court decisions, and new laws signed by Governor. To subscribe, contact LaborLaw@CLA.Legal.

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Villalva v. Bombardier Mass Transit Corp. (CA4/1 D082372 1/21/25) Labor Commissioner Appeal | Attorneys’ Fees & Costs

 

Plaintiffs Mark Villalva and Bobby Jason Yelverton are train dispatchers who brought claims for unpaid wages against their employer Bombardier Mass Transit Corporation (“Bombardier”).  Rather than going directly to court as they could have, they first decided to seek relief from the labor commissioner using the so-called “Berman” hearing process set forth in Labor Code section 98, et seq.  This is an optional streamlined procedure designed to “benefit employees with wage claims against their employers.”  (Sonic-Calabasas A, Inc. v. Moreno (2013) 57 Cal.4th 1109, 1127 (Sonic II).)  After the labor commissioner denied their claims, plaintiffs filed a request for de novo hearing in the superior court, as permitted by statute, and the matter then proceeded as a standard civil action.  (§ 98.2, subd. (a).)  Plaintiffs prevailed in a bench trial and the superior court awarded them an aggregate amount of more than $140,000 in back wages and penalties against Bombardier.  They then filed a motion for attorney fees and costs incurred in the superior court proceedings under sections 1194 and 226.  The trial court granted the motion and awarded attorney fees and costs in the amount of $200,000.  

 

On appeal, Bombardier does not contest its liability for the more than $140,000 in back wages and penalties.  Bombardier’s sole argument is that section 98.2, subdivision (c) is the exclusive statute authorizing an award of attorney fees and costs in a superior court appeal from the labor commissioner’s Berman order.  From this premise, Bombardier concludes that plaintiffs were not entitled to recover attorney fees and costs because section 98.2, subdivision (c) only authorizes an award against unsuccessful appellants in a de novo trial in superior court, not in favor of successful appellants. 

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We disagree with Bombardier’s premise.  The Berman procedure does penalize a party—employer or employee—who files an unsuccessful de novo superior court action by awarding attorney fees and costs against that party.  (§ 98.2, subd. (c).)  But the statute says nothing about a party who brings a successful de novo claim.  Prevailing plaintiffs in superior court actions for unpaid wages are generally entitled to an award of reasonable fees and costs (see, e.g., §§ 218.5, 226 and 1194), and nothing in section 98.2 suggests that the Legislature intended to make this remedy unavailable to employees who first attempt to obtain relief from the labor commissioner through the expedited Berman hearing process.  Because Bombardier’s argument contradicts the only published authority on point (Eicher v. Advanced Business Integrators, Inc. (2007) 151 Cal.App.4th 1363 (Eicher)) and shows insufficient regard for the Legislature’s unwavering encouragement of employee unpaid wage claims, we affirm the trial court’s order awarding $200,000 in attorney fees and costs to plaintiffs.

 

https://www4.courts.ca.gov/opinions/documents/D082372.PDF

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Nwauzor v. The Geo Group, Inc. (9th Cir. 21-36024 1/16/25) Washington Minimum Wage Act | Preemption

 

The panel affirmed the district court’s judgment in favor of a class of detainees and Washington State in their consolidated actions against GEO Group, Inc., which operates the Northwest Immigration and Customs Enforcement Processing Center (“NWIPC”) in Tacoma, Washington, for violations of Washington’s Minimum Wage Act (“MWA”).

 

GEO operates the NWIPC under contract with the U.S. Immigration and Customs Enforcement. GEO has a voluntary work program (“VWP”) at the NWIPC, which included hundreds of civil detainees.

 

The panel held that the application of Washington’s MWA to civil detainees held in GEO’s privately operated federal detention center did not violate the doctrine of intergovernmental immunity. The panel also held that Washington’s MWA was not preempted by federal law. Finally, the panel held that GEO did not have derivative sovereign immunity under the government contractor defense.

 

Dissenting, Judge Bennett would hold that Washington’s MWA (1) violated the Supremacy Clause and was unconstitutional as applied to NWIPC, and (2) was preempted by federal immigration law as applied to the NWIPC. Because he would reverse the district court on both intergovernmental immunity and preemption grounds, he would not reach GEO’s derivative sovereign immunity argument.

 

https://cdn.ca9.uscourts.gov/datastore/opinions/2025/01/16/21-36024.pdf

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E.M.D. Sales, Inc. v. Carrera (US 23-217 per curiam 1/15/25) FLSA Exemption | Standard of Proof

 

In 1938, Congress enacted the Fair Labor Standards Act (FLSA), guaranteeing a federal minimum wage for covered workers, 29 U. S. C. §206(a)(1), and requiring overtime pay for those working more than 40 hours per week, §207(a)(1). Congress exempted many types of employees from the FLSA’s overtime-pay requirement, including outside salesmen who primarily work away from their employer’s place of business. §213(a)(1). The law places the burden on the employer to show that an exemption applies.

 

Petitioner EMD distributes food products in the Washington, D. C., area and employs sales representatives who manage inventory and take orders at grocery stores. Several sales representatives sued EMD alleging that the company violated the FLSA by failing to pay them overtime. EMD argued that the sales representatives were outside salesmen and therefore exempt from the FLSA’s overtime-pay requirement. After a bench trial, the District Court found EMD liable for overtime because EMD did not prove by clear and convincing evidence that its sales representatives were outside salesmen. On appeal, EMD argued that the District Court should have used the less stringent preponderance-of-the-evidence standard instead of the clear-and-convincing-evidence standard. Applying Circuit precedent, the Fourth Circuit disagreed and affirmed the District Court’s judgment.

 

Held: The preponderance-of-the-evidence standard applies when an employer seeks to demonstrate that an employee is exempt from the minimum-wage and overtime-pay provisions of the FLSA. Pp. 4–8.

 

(a) When Congress enacted the FLSA in 1938, the preponderance-of-the-evidence standard was the default in American civil litigation, and it remains so today. In civil litigation, the Court has deviated from this default standard in three main circumstances. First, if a statute requires a heightened standard of proof, courts must apply it. See, e.g., §§218c(b)(1), 464(c). Second, the Constitution can mandate a heightened standard of proof. See, e.g., New York Times Co. v. Sullivan, 376 U. S. 254; Addington v. Texas, 441 U. S. 418. Third, in certain rare situations involving coercive Government action, such as taking away a person’s citizenship, a heightened standard may apply. See, e.g., Nishikawa v. Dulles, 356 U. S. 129. But in most civil cases, including employment-discrimination cases under Title VII, the Court has consistently applied the preponderance standard. See, e.g., Price Waterhouse v. Hopkins, 490 U. S. 228. Pp. 4–6.

 

(b) The FLSA does not specify a standard of proof for exemptions, and when a civil statute is silent, courts typically apply the preponderance standard. See, e.g., Grogan v. Garner, 498 U. S. 279. This case does not involve constitutional rights that would require a heightened standard, nor does it involve the Government taking unusual or coercive action against an individual. FLSA cases are similar to Title VII employment-discrimination cases, where the Court has applied the preponderance standard. P. 6.

 

(c) The employees’ policy-laden arguments for a heightened standard are unconvincing. Their argument that the FLSA protects the public interest in a fair economy does not necessitate a heightened standard. Other workplace protections, like those under Title VII, also serve important public interests but are subject to the preponderance standard. The employees argue that rights under the FLSA are nonwaivable and therefore different from other rights subject to the preponderance standard. But waivability of a right does not determine the standard of proof. Pp. 7–8.

 

Whether the employees would fail to qualify as outside salesmen even under a preponderance standard is left for the Court of Appeals on remand. P. 8.

 

75 F. 4th 345, reversed and remanded. KAVANAUGH, J., delivered the opinion for a unanimous Court. GORSUCH, J., filed a concurring opinion, in which THOMAS, J., joined.

 

https://www.supremecourt.gov/opinions/24pdf/23-217_9o6b.pdf

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Stanley v. City of Sanford (US 23-997 oral argument 1/13/25) ADA | Post-Employment Benefits

 

Under the Americans with Disabilities Act, does a former employee-who was qualified to perform her job and who earned post-employment benefits while employed-lose her right to sue over discrimination with respect to those benefits solely because she no longer holds her job?

 

Oral Argument Transcript

Oral Argument Audio

Eighth Circuit Opinion

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Leeper v. Shipt, Inc. (CA2/1 B339670 12/30/24) PAGA /Arbitration


Shipt, Inc. (Shipt) and its parent company Target Corporation (Target) (collectively, appellants) appeal from an order denying their motion to compel arbitration in an action brought against them by respondent Christina Leeper under the Private Attorneys General Act of 2004 (Lab. Code, § 2698 et seq.)(PAGA). The court denied the motion on the basis that Leeper’s PAGA action did not allege any individual claims subject tonarbitration under the parties’ arbitration agreement.

 

Based on the unambiguous, ordinary meaning of the relevant statutory language and the legislative history of that language, however, we conclude that every PAGA action necessarily includes an individual PAGA claim.

 

Accordingly, we reverse and direct the court to enter a new order (1) compelling the parties to arbitrate Leeper’s individual PAGA claim and (2) staying the representative PAGA claimportion of the lawsuit.

 

https://www4.courts.ca.gov/opinions/documents/B339670.PDF  

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Markel v. UOJCA (9th Cir. 23-55088 12/30/24) First Amendment Ministerial Exception

 

The panel affirmed the district court’s summary judgment in favor of the Union of Orthodox Jewish Congregations of America (OU) and Rabbi Nachum Rabinowitz, holding that the First Amendment’s ministerial exception barred plaintiff Yaakov Markel, whom UO formerly employed as a mashgiach to supervise food preparation for kosher compliance, from bringing employment-related claims.

 

The OU is organized as a not-for-profit corporation whose mission is to serve the Orthodox Jewish community. It runs the largest kosher certification program in the United States, and the program provides most of OU’s revenues. The district court held that OU is a religious organization and that a mashgiach is a “minister” within Orthodox Judaism. Markel’s employment-related claims, therefore, were categorically barred by the First Amendment’s ministerial exception, which precludes the application of “laws governing the employment relationship between a religious institution and certain key employees.”

 

The panel agreed with the district court that the ministerial exception categorically barred Markel’s employment-related claims because UO is a religious organization and a mashgiach is a minister. The acceptance of revenue does not deprive an organization with a religious mission of First Amendment protections. Here, OU was organized to support the Orthodox Jewish Community, its activities primarily serve this purpose, and it holds itself out to the public as religious. Markel’s role was essential to OU’s religious mission. Because only observant Orthodox Jews can serve as a mashgiach for the OU, and because they are necessary to carrying out OU’s religious mission of ensuring the wide availability of kosher food, a mashgiach is a minister for purposes of the ministerial exception.

 

The panel rejected Markel’s argument that the ministerial exception was inapplicable because his dispute involved only secular issues. A religious institution’s decisions, even if facially secular, are often intertwined with religious doctrine. Moreover, a religious organization need not provide any religious justification to invoke the ministerial exception. Finally, the panel held that given the broad purpose of the ministerial exception, it protects a religious organization’s supervisors and religious leaders from claims brought by ministerial employees.

 

Concurring in part and concurring in the judgment, Judge Sanchez agreed that the ministerial exception applied under the facts of this case. As a head mashgiach who ensured the kosher certification of grape products, Markel’s work was essential to the spiritual mission of UO. Because Markel qualified as a minister, his claims challenging UO’s tangible employment actions were barred under the ministerial exception. Judge Sanchez did not join Section III.C of the opinion or the majority’s conclusion that the Supreme Court has taken a broad view of who counts as a minister. This case did not require the panel to adopt either a broad or narrow view of the ministerial exception or to wade into questions about whether a court can differentiate between “secular” or “religious” decisions. To the extent the majority suggests that the ministerial exception also bars non-employment-related claims brought by a ministerial employee, that view is at odds with both Supreme Court and circuit precedent.

 

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/12/30/23-55088.pdf

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Huff v. Interior Specialists, Inc., et al. (CA 4/1 D082036 12/27/24) PAGA | Arbitration

 

Pauline Mary Huff filed a class action and an action under the Private Attorneys General Act of 2004 (Labor Code, § 2698 et seq.) (PAGA)  against her former employer, Interior Specialists, Inc., and its related corporate entities (collectively Interior Specialists) alleging an array of wage-and-hour violations.  Interior Specialists first moved to compel arbitration of Huff’s claims in the class action.  In opposing this motion, Huff mainly argued that the agreement to arbitrate was invalid because, when she attempted to sign the agreement in DocuSign, an electronic signature for someone else named “William” was already entered into the agreement.  On May 27, 2022, the trial court found sufficient evidence showing that Huff consented to the agreement and granted the motion to compel.

 

After the class and PAGA actions were consolidated, Interior Specialists filed a separate motion to compel Huff’s PAGA claims to arbitration.  On October 21, 2022, the trial court reiterated its earlier finding that Huff validly signed the agreement.  Then, relying on the United States Supreme Court’s then-recent decision in Viking River Cruises, Inc. v. Moriana (2023) 596 U.S. 639 (Viking River), it ordered Huff’s claims brought on her own behalf (her individual PAGA claims) to arbitration, and dismissed the claims brought on behalf of other current or former employees (her nonindividual PAGA claims) without prejudice for lack of standing.

 

On April 18, 2023, Huff filed two notices of appeal—one from the May 27, 2022 order and another from the October 21, 2022 order.  She contends the trial court erred in finding that she signed the arbitration agreement and in dismissing her nonindividual PAGA claims. 

 

For reasons we explain, we conclude that Huff timely appealed from the October 21 order dismissing her nonindividual PAGA claims.  On the merits of that order, we reverse based on the California Supreme Court’s decision in Adolph, supra, 14 Cal.5th 1104, which rejected Viking River’s interpretation of California law on the issue of standing.  Because we are reversing based on Adolph, we need not address Huff’s additional arguments concerning the electronic signature.

 

https://www4.courts.ca.gov/opinions/documents/D082036.PDF

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Alliance Marce & Eva Stern Math & Sci. High Sch. v. PERB (CA2/2 B316745 12/26/24) PERB | Prohibition on Public Employers Deterring or Discouraging Union Membership (PEDD)

 

Petitioners are 11 public charter schools (collectively, the Schools) seeking to set aside a November 3, 2021 decision and order (Order) by respondent Public Employment Relations Board (PERB).  In the Order, PERB found that the Schools violated section 3550 of the Prohibition on Public Employers Deterring or Discouraging Union Membership (PEDD) (Gov. Code, §§ 3550–3553) and ordered the Schools, their governing boards, and their representatives to cease and desist from doing so.  As originally enacted and as applicable here, section 3550 provided that “[a] public employer shall not deter or discourage public employees from becoming or remaining members of an employee organization.”  (Stats. 2017, ch. 567, § 1.)

 

PERB concluded that e‑mail communications by the Schools’ management organization, Alliance College-Ready Public Schools (Alliance CMO), and by principals and assistant principals at eight of the Schools tended to influence School employees’ decision whether to be represented by real party in interest United Teachers Los Angeles (UTLA), in violation of section 3550.  PERB further concluded the Schools could be held responsible for those violations.

 

The Schools contend PERB’s interpretation of section 3550 is erroneous because it eliminates longstanding free speech defenses under federal and California law for noncoercive employer speech.  The Schools further contend section 3550 is facially unconstitutional because it violates free speech protections afforded by the federal and California Constitutions and is unconstitutional as applied to the communications at issue.  Finally, the Schools challenge the sufficiency of the evidence supporting PERB’s finding that Alliance CMO and the principals and assistant principals acted on behalf of the Schools when they e‑mailed School employees about possible representation by UTLA.

 

PERB and UTLA maintain that PERB’s interpretation of section 3550 is not clearly erroneous, and this court must defer to and uphold that interpretation.  As to the Schools’ constitutional claims, PERB and UTLA contend the Schools are political subdivisions of the State of California and as such cannot assert free speech claims against the state under the federal or California Constitutions.  PERB and UTLA further argue that the communications at issue constitute government speech unprotected by the First Amendment, that the Schools waived any free speech rights they now seek to assert, and that PERB properly held the Schools responsible for communications by the administrators and Alliance CMO.  PERB in addition argues that section 3550 is a permissible regulation of the Schools’ speech as part of the public school program funded by the state.

 

PERB’s interpretation of section 3550 is not clearly erroneous, and we therefore uphold that interpretation while we reject the Schools’ constitutional claims.  Although the Schools are not political subdivisions of the state and are not barred from asserting their free speech claims in this case, section 3550 is not facially unconstitutional because it regulates only government speech unprotected by the free speech provisions of the First Amendment and the California Constitution.  Section 3550 is not unconstitutional as applied.  The communications by School administrators and by Alliance CMO were made not as private citizens but pursuant to official and contractual duties as School administrators.  Those communications accordingly were not private speech but government speech unprotected by constitutional free speech provisions.  Given our conclusion that section 3550 regulates only government speech, we do not address PERB’s argument that the statute is a permissible regulation of the Schools’ speech as part of a government funded public education program.  Substantial evidence supports PERB’s finding that Alliance CMO’s and the School administrators’ communications are attributable to the Schools under theories of actual and apparent authority.  For the foregoing reasons, we affirm the Order.

 

https://www4.courts.ca.gov/opinions/documents/B316745.PDF

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Jenkins v. Dermatology Management, LLC (CA2/6 B333759, filed 11/20/24, pub. 12/19/24) Arbitration | Unconscionability

 

Appellant Dermatology Management, LLC, employed respondent Annalycia Jenkins.  After respondent had resigned from her position, she brought a class action against appellant.  Appellant appeals from the trial court’s order denying its motion to compel respondent to arbitrate her claims pursuant to an arbitration agreement that she signed on her first day of work.  (Code Civ. Proc., § 1294, subd. (a).)

 

We conclude the arbitration agreement is procedurally and substantively unconscionable.  We reject appellant’s contention that the trial court abused its discretion in refusing to sever the substantively unconscionable provisions and enforce the remainder of the arbitration agreement.  Accordingly, we affirm.  Our affirmance renders moot appellant’s contention that the trial court erroneously denied its motion to dismiss respondent’s class claims “because nothing in the [arbitration] agreement would permit [her] to bring proposed class claims in arbitration.” 

 

https://www4.courts.ca.gov/opinions/documents/B333759.PDF

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Winston v. County of Los Angeles (CA2/8 B323392 12/13/24) Labor Code 1102.5 Attorneys’ Fees | Pending Statutory Effective Date

 

Harold Winston (Winston) sued his employer, the County of Los Angeles (L.A. County), alleging race-based discrimination, retaliation, and failure to maintain a discrimination free environment under the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) and whistleblower retaliation in violation of Labor Code section 1102.5.

 

While Winston’s case was pending, Labor Code section 1102.5 was amended, effective January 1, 2021, to add a provision—subdivision (j)—authorizing courts to award reasonable attorney fees to whistleblower plaintiffs who prevail against their employer under section 1102.5.

 

After the jury found in Winston’s favor on his retaliation claim under section 1102.5, Winston filed a motion for attorney fees based on section 1102.5’s recently enacted subdivision (j).  The trial court denied the motion, ruling that the fee provision does not apply to Winston’s case because it was not in effect in 2019 when the complaint was filed and because it found no legislative intent supporting retroactive application.

 

We disagree with the trial court’s decision and reverse.  Case precedent establishes that a new statute authorizing an award of attorney fees applies to actions pending on the statute’s effective date.  On remand we direct the trial court to determine, in the first instance, the appropriateness and reasonableness of the fee request.

 

https://www4.courts.ca.gov/opinions/documents/B323392.PDF

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Wawrzenski v. United Airlines (CA2/7 B327940M, filed10/22/24, pub. 11/12/24, mod. & rehrg. den. 12/11/24 ) FEHA Discrimination, Harassment & Retaliation | Social Media Account

 

THE COURT:

 

It is ordered that the opinion filed October 22, 2024 and modified November 12, 2024 be modified as follows:

 

At the end of the last paragraph of section B(3) of the Discussion and after the citation: (Riggs v. AirTran Airways, Inc. (10th Cir. 2007) 497 F.3d 1108, 1117; see Graham v. Long Island R.R., supra, 230 F.3d at pp. 42-43 [a rational jury could find the plaintiff and another employee were similarly situated where they engaged in different misconduct but were subject to the same conditions for dismissal].), add as footnote 13 the following footnote, which will require renumbering of all subsequent footnotes:

 

13.  United argues in a petition for rehearing that our consideration of comparators with different supervisors is “deductively unsound” because the jury could not infer Mark had a discriminatory motive for firing Wawrzenski without evidence he knew how other supervisors disciplined similarly situated employees.  But as the court in Earl v. Nielsen Media Research, Inc., supra, 658 F.3d 1108 recognized, the “‘same supervisor’ requirement” does not apply where, as here, the plaintiff and the comparators have “to follow the same policies and procedures” and the employer coordinates disciplinary actions “on a national level in an effort to ensure they are subject to consistent standards.”  (Id. at p. 1115.)  Indeed, Mark testified that before terminating Wawrzenski’s employment he consulted with a management team to confirm he was applying “company policies in a consistent manner . . . across the company.”  Viewing this evidence in the light most favorable to Wawrzenski, a jury could find her similarly situated in all material respects to the comparators, even though she and the comparators may have had different supervisors.

 

Respondent’s petition for rehearing is denied.  There is no change in the appellate judgment.

 

https://www4.courts.ca.gov/opinions/documents/B327940M.PDF

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Chavez v. Cal. Collision (CA1/3 A167658 12/10/24) Wage & Hour | 998 Offers

 

Jorge Chavez, Aldo Isas, and Samuel Zarate (collectively, plaintiffs) sued California Collision, LLC (CCL) and George Osorio (collectively, defendants) for various wage and hour and employment claims.  Defendants made settlement offers to each plaintiff pursuant to Code of Civil Procedure section 998 (section 998 offers).  Chavez and Isas accepted.  Zarate proceeded to trial—the jury found in his favor on two causes of action but awarded him damages lower than the section 998 offer amount.  After trial and entry of judgment, the court awarded costs for defendants and against Zarate under section 998 as Zarate failed to obtain a more favorable judgment at trial.  The court also awarded attorney fees to plaintiffs in amounts much lower than those requested.

 

Numerous issues are raised on appeal.  As explained below, we lack jurisdiction to entertain Zarate’s challenge to two interlocutory orders (pretrial motion for summary adjudication and motion for a directed verdict) because he failed to file a notice of appeal from the final judgment entered after trial.  And we find no abuse of discretion in the trial court’s award of attorney fees to plaintiffs.  However, we reverse the court’s award of costs to defendants made pursuant to section 998 as being in violation of Labor Code sections 1194 and 218.5.

 

https://www4.courts.ca.gov/opinions/documents/A167658.PDF

 

Hansen v. Musk (9th Cir. 23-15296 12/10/24) Sarbanes-Oxley Act

 

The panel affirmed the district court’s order dismissing a complaint alleging whistleblower retaliation claims.

 

Karl Hansen sued Tesla, Inc., its CEO, and U.S. Security Associates, alleging that they retaliated against him for reporting misconduct at Tesla. The district court ordered most of Hansen’s claims to arbitration, except his claim under the Sarbanes-Oxley Act of 2002 (SOX). The district court confirmed the arbitration award disposing of the non-SOX claims, and granted defendants’ motion to dismiss the entire suit—including the SOX claim—because the arbitrator’s findings precluded Hansen from relitigating issues from arbitration that were also key to the SOX claim.

 

Affirming the district court’s dismissal of the complaint, the panel held that, although an arbitrator’s decision can never preclude a SOX claim, which is not subject to mandatory predispute arbitration agreements, a confirmed arbitral award can sometimes preclude relitigation of the issues underlying a SOX claim. In this case, relitigation of the dispositive issues underlying Hansen’s SOX claim is precluded by the confirmed arbitral award that also conclusively resolves Hansen’s other claims.

 

Judge Collins concurred in the judgment in part and dissented in part. Judge Collins concurred in the judgment to the extent that the majority affirmed the district court’s rejection of all of Hansen’s claims other than his SOX retaliation claim. Judge Collins dissented from the majority’s decision affirming the district court’s holding that the arbitral award collaterally estopped Hansen from litigating his SOX claim in the district court. He would reverse the dismissal of that claim and remand for further proceedings.

 

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/12/10/23-15296.pdf

 

Bahreman v. Allegiant Air, LLC (9th Cir. 23-16156 12/10/24) Railway Labor Act

 

The panel affirmed the district court’s summary judgment in favor of Allegiant Air and the Transport Workers Union in Allegiant flight attendant Ali Bahreman’s action alleging that the Collective Bargaining Agreement between Allegiant and the Union violated the Railway Labor Act of 1926.

 

The Agreement gives employees a choice between paying dues to join the Union or paying agency fees without joining the Union. The Agreement’s enforcement mechanism gives employees a third choice: pay neither dues nor fees, and lose bidding privileges for work schedules. Bahreman chose not to pay any fees, and lost his bidding privileges.

 

The panel held that the Railway Labor Act does not prohibit a collective bargaining agreement that conditions seniority-based bidding privileges—not continued employment—on payment of either union dues or agency fees.

 

Addressing Bahreman’s claims that the Agreement’s suspension of bidding privileges for nonpayment of agency fees violates the Act, the panel held that (1) the Agreement does not violate the Act’s anti-coercion provision because it does not induce employees to join the Union, (2) the Act does not prohibit unions from reaching collective bargaining agreements with different terms other than those that the Act explicitly permits, and (3) the Union did not violate its duty of fair representation because the Union enforced the Agreement equally among all members of the bargaining unit.

 

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/12/10/23-16156.pdf

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Feliciano v. Dep’t of Transportation (US 23-861, cert granted 6/24/24, oral argument transcript 12/9/24) Differential Pay Statute for Reservists

 

QUESTION PRESENTED:

 

This case presents a question of critical importance to hundreds of thousands of Americans who serve their country both as federal civilian employees and members of the Armed Services' reserve components.

 

Congress enacted the differential pay statute, 5 U.S.C. § 5538, to eliminate the financial burden that reservists face when called to active duty at pay rates below their federal civilian salaries. To ensure that these reservists suffer no financial penalty for active-duty service, the differential pay statute requires that the government make up the difference. Federal civilian employees are entitled to differential pay when performing active duty "pursuant to a call or order to active duty under * * * a provision of law referred to in section 101(a)(13)(B) of title 10." That section, Section 101(a)(13)(B), enumerates several statutory authorities and includes a catchall provision: "any other provision of law during a war or during a national emergency declared by the President or Congress." Recently, in a decision that departed from settled understandings of this language, the Federal Circuit held that reservists relying on Section 101(a)(13)(B)'s catchall provision to claim differential pay must show that they were "directly called to serve in a contingency operation." Adams v. DHS, 3 F.4th 1375, 1379 (Fed. Cir. 2021). Under that demanding, fact-intensive standard, the Federal Circuit has rejected claims for differential pay even by reservists like petitioner whose activation orders expressly invoked a presidential emergency declaration.

 

The question presented is: Whether a federal civilian employee called or ordered to active duty under a provision of law during a national emergency is entitled to differential pay even if the duty is not directly connected to the national emergency.

 

Federal Circuit Court Decision

Transcript

Audio

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Howell v. State Dept. of State Hospitals (CA1/2 A168526, filed 11/7/24, pub. 12/5/24) FEHA Disability Discrimination | Prejudgment Interest

 

“After three years of litigation and a two-week trial,” a jury found plaintiff Ashley Howell had been discriminated against by her former employer, Department of State Hospitals (DSH).  The jury awarded Howell $36,751.25 in lost earnings and health insurance benefits but nothing for pain and suffering.  After trial, the court denied Howell’s motion for a limited new trial regarding non-economic damages and granted DSH’s motion for judgment notwithstanding the verdict, striking the award for lost health insurance benefits.  As the prevailing party, Howell sought $1.75 million in attorney fees, costs, and prejudgment interest; the court awarded $135,102 “in fees and costs” but did not rule on her uncontested request for prejudgment interest.  Accordingly, we remand for the court to address Howell’s request for prejudgment interest.  In all other aspects, we affirm.

 

https://www4.courts.ca.gov/opinions/documents/A168526.PDF

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The Ohio House, LLC v. City of Costa Mesa (9th Cir. 22-56181 12/4/24) FHA/FEHA | Housing Disability Discrimination

 

The panel affirmed the district court’s partial summary judgment to the City of Costa Mesa and denial of The Ohio House LLC’s post-verdict motions in Ohio House’s action challenging the City’s zoning laws as discriminatory against the disabled in violation of the Fair Housing Act (FHA), California’s Fair Employment and Housing Act (FEHA) and the California Planning and Zoning Law, California Government Code § 65008.

 

Ohio House operates a sober-living facility in a multiple-family residential (MFR) zone. The City notified Ohio House that the property was subject to Ordinance 15-11, which requires that all group homes with over six residents located in MFR zones obtain a conditional-use permit and satisfy a separation requirement. The City denied Ohio House’s application for a conditional-use permit because the property did not meet the separation requirement, and also denied Ohio House’s request for a reasonable accommodation or waiver of the separation requirement.

 

Addressing Ohio House’s disparate treatment claim, the panel agreed with the parties that whether the City’s zoning code facially subjects the disabled to unlawful disparate treatment is a question of law that should have been resolved at summary judgment. On the merits, the panel held that Ohio House failed to establish facial disparate treatment as a matter of law because the differential treatment under the City’s group-living regulations facially benefits the protected class of disabled people. The district court’s error in submitting this matter to the jury was harmless because the jury correctly concluded that Ohio House failed to prove disparate treatment.

 

The panel affirmed the district court’s summary judgment for the City on Ohio House’s disparate impact claim, agreeing with the district court that Ohio House failed to prove a significant, adverse, and disproportionate effect on a protected group. The panel affirmed the district court’s denial of judgment as a matter of law on Ohio House’s discriminatory statements claim. Ohio House’s contention that the City violated the FHA’s and the FEHA’s prohibition against discriminatory statements by enacting a facially discriminatory zoning code fails for the same reasons that the disparate treatment claim fails. Comments made by individual city employees suggesting that they had a discriminatory purpose for adopting the challenged zoning regulations are, standing alone, insufficient to overturn the jury’s verdict.

 

The panel affirmed the district court’s denial of judgment as a matter of law on Ohio House’s claim that the City interfered with Ohio House aiding or encouraging others’ exercise of their rights under the FHA because Ohio House failed to prove a causal link between its protected activity of providing sober-living housing and the City’s actions that impeded that activity. The panel adopted the Seventh Circuit’s approach to causation, which requires proof of intentional discrimination or discriminatory animus to establish a prima facie claim based on an interference theory. The panel affirmed the district court’s denial of judgment as a matter of law on Ohio House’s facial challenge to the City’s reasonable-accommodation ordinance, concluding that (1) the City’s reasonable-accommodations ordinance is not facially inconsistent with the FHA; and (2) the jury had an evidentiary basis for finding that Ohio House’s requested accommodation—granting an exception to the separation requirement—was unreasonable. Because the jury ultimately reached the correct outcome, it was harmless error for the district court to submit this purely legal issue to the jury. Finally, the panel affirmed the district court’s denial of Ohio House’s post-trial renewed motion for judgment as a matter of law on Ohio House’s § 65008 claim because it was time-barred.

 

Specially concurring, Judge Ikuta would hold that to establish a facial disparate treatment claim under the FHA and FEHA, a plaintiff must show that the protected group suffered unfavorable treatment compared to the unprotected group and not merely show that the protected group has been treated differently than the unprotected group.

 

Concurring, Judge Forrest agreed with Judge Ikuta that a plaintiff should be required to prove adverse facially differential treatment as part of its prima facie case, but disagreed that a prima facie showing of unfavorable treatment is required under Ninth Circuit precedent.

 

Dissenting in part, Judge Gould would have dismissed Ohio House’s interference claim under the FHA as waived for lack of adequate briefing, instead of reaching the merits.

 

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/12/04/22-56181.pdf

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Gonzalez v. Nowhere Beverly Hills LLC (CA2/1 B328959 12/3/24) Arbitration

 

Nine related LLCs—Nowhere Beverly Hills, Nowhere Calabasas, Nowhere Culver City, Nowhere Commissary, Nowhere Palisades, Nowhere Partners, Nowhere Silver Lake, Nowhere Venice and Nowhere Holdco—appeal from an order denying their motion to compel plaintiff Edgar Gonzalez to arbitrate his claims against them on a non-class basis pursuant to a written arbitration agreement between Gonzalez and a tenth related LLC, Nowhere Santa Monica.  Gonzalez opposed the motion on the ground the non-Santa Monica Nowhere entities were not parties to the agreement.  We hold Gonzalez is equitably estopped from avoiding arbitration with the non-Santa Monica Nowhere entities.  We therefore reverse the order denying their motion.

 

https://www4.courts.ca.gov/opinions/documents/B328959.PDF

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Trujillo v. J-M Manufacturing Co., Inc. (CA2/8 B327111 12/2/24) Arbitration

 

Stephnie Trujillo (respondent) filed a complaint against her former employer J-M Manufacturing Company (JMM) and four former coworkers David Merritt, David Moore, David Christian, and Chuck Clark.  After weeks of negotiating, the parties entered into a stipulation for arbitration, later signed as an order by the trial court.  Court proceedings were stayed and the parties initiated arbitration in May 2021.  JMM timely paid the arbitrator’s invoices for over a year.  On October 18, 2022, the arbitrator contacted JMM and requested payment for the invoice with a due date of September 12, 2022.  JMM immediately paid the invoice.  Later that evening, Trujillo gave notice of her intent to withdraw from arbitration due to JMM’s late payment.  She filed a motion to withdraw from arbitration pursuant to Code of Civil Procedure section 1281.98, which the trial court granted.

 

On appeal, JMM and the four coworkers (whom we collectively refer to as appellants) argue the trial court erred in ruling that section 1281.98 applied.  Appellants contend the statute does not apply to them because: 1) they entered into a post-dispute stipulation to arbitrate with mutually agreed upon terms, whereas the statute governs mandatory pre-dispute arbitration agreements; and 2) they were not the “drafting party” as defined in section 1280, subdivision (e).

 

We agree with appellants and reverse.  We find section 1281.98, subdivision (a) does not apply because the parties did not submit to arbitration pursuant to any pre-dispute agreement and because JMM does not qualify as a “drafting party” as defined by section 1280, subdivision (e).  We remand with instructions to the trial court to enter an order denying Trujillo’s motion to withdraw from arbitration and to reinstate the stay of trial court proceedings pending completion of arbitration.

 

https://www.courts.ca.gov/opinions/documents/B327111.PDF

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Assn. for L.A. Deputy Sheriffs v. County of L.A. (CA2/5 B331881 11/20/24) Meyers-Milias-Brown Act | Peace Officer Discipline

 

Finding law enforcement gangs damage the trust, reputation, and efforts to enhance professional standards of policing agencies throughout the state, the California Legislature enacted Penal Code sections 13670 and 13510.8, both effective January 1, 2022.  (Stats 2021, ch. 408, §§ 1, 3; Stats 2021, ch. 409, § 13.)  The former requires law enforcement agencies to “maintain a policy that prohibits participation in . . . law enforcement gang[s] and . . . makes violation of that policy grounds for termination.”  (Pen. Code, § 13670, subd. (b).)  It also requires law enforcement agencies to cooperate with investigations into such gangs by an inspector general or other authorized agency.  (Ibid.)  The latter authorizes revocation of a peace officer’s certification for “serious misconduct,” including “[p]articipation in a law enforcement gang” or “[f]ailure to cooperate with an investigation into potential police misconduct.”  (Pen. Code, § 13510.8, subds. (b)(7) & (b)(8).)  

 

The new legislation did not address or alter pre-existing procedures for officer discipline required by the Meyers-Milias-Brown Act (MMBA) (Gov. Code, § 3500 et seq.), which governs labor-management relations at the local government level.  The MMBA requires public employers and employee organizations to meet and confer in good faith over matters within the “scope of representation,” which “includ[e], but [are] not limited to, wages, hours, and other terms and conditions of employment,” but excludes “consideration of the merits, necessity, or organization of any service or activity provided by law or executive order.”  (Gov. Code, § 3504.) 

 

On May 12, 2023, the Office of the Inspector General for the County of Los Angeles (OIG) sent a letter to 35 individual Los Angeles Sheriff’s Department (LASD) deputies selected based on information gleaned from personnel records.  Citing Penal Code sections 13670 and 13510.8, the letter directs the deputies to appear and answer questions about their knowledge of and involvement in law enforcement gangs, to display certain tattoos located on their lower legs or arms, and to provide photographs of such gang-associated tattoos on their bodies.  On May 18, 2023 – six days after the OIG’s letter – the Los Angeles County Sheriff Robert Luna sent the deputies his own letter, via email, ordering them to participate in the interviews and warning that refusal to cooperate would be grounds for discipline, including termination.

 

The union representing the deputies—the Association for Los Angeles Deputy Sheriffs (ALADS)—filed an unfair labor practice claim with the Los Angeles County Employee Relation Commission (ERCOM) and simultaneously sought injunctive relief from the trial court, unavailable in the administrative tribunal, to enjoin the OIG from proceeding with the interviews without first meeting and conferring with ALADS under the MMBA and the Los Angeles County Employee Relations Ordinance (ERO), promulgated pursuant to the MMBA.  ALADS further contended the planned interrogations violated deputies’ Fourth and Fifth Amendment rights.  The trial court rejected ALADS’ constitutional claims but, concluding the interview directive triggered the meet-and-confer obligations under the MMBA, enjoined the OIG’s interviews pending adjudication of the unfair labor practice claim or the completion of the MMBA’s meet-and-confer process, whichever came first.  This appeal followed.  

 

We conclude the trial court committed no error in determining ALADS showed a probability of prevailing on its claim that the interview directive triggered the duty to meet and confer (or bargain) with ALADS under the MMBA and we find the trial court acted within its discretion in balancing of the interim harm.  Accordingly, we affirm.  

 

https://www.courts.ca.gov/opinions/documents/B331881.PDF

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Quesada v. County of L.A. (CA2/8 B326986 11/19/24) Failure to Promote | Standard of Proof

 

Marlon Quesada was a “mediocre employee,” according to a commander in the Los Angeles County Sheriff’s Department.  As a deputy sheriff, Quesada “did not have the best work ethic.”  The commander wrote there was “nothing striking” about Quesada.  Quesada sued when the Department did not promote him.  He claimed the Department improperly considered a disciplinary proceeding against him that had been terminated by a statute of limitations.  The Department rejected Quesada’s claim, as did the trial court.

 

Quesada appeals, asserting the trial court erred by failing to apply a burden-shifting approach to his claim.  We decline Quesada’s invitation to change the law by adopting burden-shifting in this context.  Instead, the standard approach to civil litigation governs here: plaintiffs bear the burden of establishing the elements of their claim by the relevant standard, which here is a preponderance of the evidence.  Quesada’s policy arguments do not justify his proposed departure from this norm.

 

We likewise reject Quesada’s substantial evidence attack on the trial court’s ruling, and we affirm in all respects.  Undesignated citations are to the Government Code.

 

https://www.courts.ca.gov/opinions/documents/B326986.PDF

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Wawrzenski v. United Airlines (CA2/7 B327940, filed10/22/24, pub. 11/12/24) FEHA Discrimination, Harassment & Retaliation | Social Media Account

 

Alexa Wawrzenski was a flight attendant employed by United Airlines, Inc.  United investigated and ultimately fired her for having a social media account featuring pictures of herself in uniform and wearing a bikini, with a link to a subscription-based account advertised as providing “[e]xclusive private content you won’t see anywh[ere else].”  Wawrzenski sued United, alleging that she endured years of gender discrimination and harassment, that United retaliated against her for complaining about the discrimination and harassment by terminating her employment, that United’s investigation into her social media and her termination discriminated against her as a woman, that United failed to prevent its employees’ misconduct, and that United intentionally caused Wawrzenski emotional distress. 

 

United moved for summary judgment or in the alternative for summary adjudication on all causes of action and on Wawrzenski’s claim for punitive damages.  The trial court granted United’s motion in its entirety, and Wawrzenski appealed from the ensuing judgment.

 

We conclude the trial court erred in granting United’s motion for summary adjudication on Wawrzenski’s causes of action under the Fair Employment and Housing Act (Gov. Code, § 12900 et seq. (FEHA)).  We also conclude, however, Wawrzenski forfeited her challenge to the trial court’s rulings on her causes of action for retaliation under Labor Code section 1102.5, wrongful termination in violation of public policy, and intentional infliction of emotional distress by not challenging one of the grounds for those rulings.  And we conclude Wawrzenski forfeited her argument the trial court erred in granting United’s motion for summary adjudication on her claim for punitive damages by failing to cite any evidence in support of her contentions on appeal.  Therefore, we reverse the judgment and the order granting United’s motion for summary judgment.  We direct the court to enter a new order denying United’s motion for summary judgment, denying United’s motion for adjudication on Wawrzenski’s causes of action under FEHA, and granting the motion on her other causes of action and her claim for punitive damages.

 

https://www.courts.ca.gov/opinions/documents/B327940.PDF

​

Rodriguez v. Lawrence Equipment, Inc. (CA2/3 B325261, filed 10/10/24, pub. 11/8/24) PAGA | Issue Preclusion

 

Plaintiff and appellant Julian Rodriguez sued defendant and respondent Lawrence Equipment, Inc. (Lawrence) for wage-and-hour violations; he also sought civil penalties and wages pursuant to the Private Attorneys General Act of 2004 (Lab. Code, § 2698 et seq.) (PAGA).  The trial court ordered arbitration of Rodriguez’s wage and hour claims, and stayed Rodriguez’s single PAGA cause of action.  The arbitrator then found in favor of Lawrence and against Rodriguez on the alleged wage and hour Labor Code violations.  After the trial court entered judgment on the arbitration award, Lawrence brought a motion for judgment on the pleadings asserting that the remaining PAGA cause of action was barred by issue preclusion since Rodriguez’s standing as an aggrieved employee was predicated on the disproven wage and hour violations.  The trial court granted the motion and dismissed Rodriguez’s case.  Rodriguez appeals, contending for the elements of issue preclusion have not been satisfied.  We affirm.

 

https://www.courts.ca.gov/opinions/documents/B325261.PDF

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Petree v. Pub. Employees' Retirement System (CA4/1 D082749 11/6/24) Public Sector Service Credit

 

Plaintiffs are former officers with the City of Perris Police Department (Perris PD) or their surviving spouses. In 1996, when the City of Perris (City) decided to close its police department and contract with Riverside County (County) for municipal law enforcement services, the officers were hired as deputies with the Riverside County Sheriff (Sheriff’s Department). Plaintiffs claim that the closure of the Perris PD, combined with the Sheriff’s Department’s decision to hire the officers as deputies, resulted in a merger of the two departments under Government Code section 20508. As a result, plaintiffs contend, Riverside County and the Public Employees Retirement Service (CalPERS) must credit the officers’ service with the Perris PD as service with the Sheriff’s Department, which would entitle them to a more generous pension for their police service.

 

Construing section 20508, the trial court determined that service credits would transfer only where there was a merger of contracts between successive employing agencies and CalPERS. Here, however, the court correctly concluded that there was no merger of the contracts because the County never assumed any of the City’s municipal functions, as is required for the statute to apply. Instead, the service pensions for the Perris PD officers and the Sheriff’s Department deputies are calculated and paid out by CalPERS under separate contracts it has with the City and County, respectively. As a result, section 20508 has no application, and we affirm.

 

https://www.courts.ca.gov/opinions/documents/D082749.PDF

​

E.M.D. Sales, Inc. v. Carrera (US 23-217, oral argument transcript, 11/5/24) FLSA

 

The Fair Labor Standards Act (FLSA) covers more than 140 million workers and guarantees eligible workers a minimum wage and overtime pay. But the FLSA also contains 34 exemptions from those requirements. Employers do not have to pay overtime to, e.g., bona fide executives, agricultural workers, and outside salesmen. See 29 U.S.C. § 213(a)-(b).

 

The question presented is: Whether the burden of proof that employers must satisfy to demonstrate the applicability of an FLSA exemption is a mere preponderance of the evidence-as six circuits hold-or clear and convincing evidence, as the Fourth Circuit alone holds.

 

Transcript

Audio

Decision Below: Carrera v. E.M.D. Sales, Inc., 75 F.4th 345, (4th Cir. 2023), cert. granted  6/17/2024

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State of Nebraska v. Su (9th Cir. 23-15179 11/5/24) Executive Order 14026

 

In an action brought by several states challenging Executive Order 14026, which directed federal agencies to include a clause in federal contracts requiring contractors to pay employees a $15 minimum wage, and a Department of Labor (DOL) rule implementing the executive order, the panel (1) reversed the district court’s order dismissing the states’ complaint; (2)vacated the district court’s order denying the states a preliminary injunction; and (3) remanded for further proceedings.

 

The states argued on appeal that the executive order and DOL implementing rule violated the Federal Property and Administrative Services Act (FPASA) and the major questions doctrine, and that the DOL implementing rule violated the Administrative Procedure Act (APA).

 

First, the panel held that the minimum wage mandate exceeds the authority granted to the President and DOL in the FPASA because the congressional purpose stated in § 101 of the FPASA does not authorize the President to impose a wage mandate absent other operative language in the FPASA. The FPASA’s operative sections do not authorize the minimum wage mandate. The President cannot issue an executive order instructing agencies to carry out the minimum wage mandate by pointing to any of the FPASA’s operative sections, and DOL similarly cannot issue a minimum wage rule under any of the FPASA’s operative sections.

 

Second, the panel held that the major questions doctrine does not apply because the Executive’s reliance on the FPASA for the minimum wage mandate is not a “transformative” expansion of its authority.

 

Third, the panel held that DOL’s implementing rule was subject to arbitrary-or-capricious review under the APA, and DOL acted arbitrarily or capriciously when it failed to consider alternatives to the $15 per hour minimum wage mandate.

 

Concurring, Judge R. Nelson wrote that although—as the majority concludes—the minimum wage mandate does not violate the major questions doctrine because it is not a “transformative expansion” of the President’s authority under the FPASA, in his view the major questions doctrine applies to statutes that delegate authority to the President.

 

Dissenting, Judge Sanchez would hold that Executive Order 14026 fits comfortably within the President’s broad authority under the FSAPA to direct federal agencies in the use of their statutory power to specify the terms of federal contracts. He would also hold that DOL did not act arbitrarily or capriciously by implementing a binding presidential directive.

 

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/11/05/23-15179.pdf

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Bedard v. City of Los Angeles et al. (CA2/3 B331062 10/31/24) Public Sector COVID-19 Discipline | Skelly

 

Because plaintiff Jeannine Bedard refused to comply with the City of Los Angeles’s (the City) COVID-19 vaccination mandate and sign a “Notice of Mandatory COVID-19 Vaccination Policy Requirements” (the Notice) enforcing the mandate, the Chief of Police sought to terminate her employment as a Los Angeles Police Department (LAPD) officer.  The LAPD Board of Rights (the Board) reviewed the Chief’s proposed discipline, found Bedard guilty of failing to comply with conditions of employment, and upheld the decision to discharge Bedard.  The Board also found the City failed to provide Bedard sufficient time to respond to the charges in violation of Skelly v. State Personnel Board (1975) 15 Cal.3d 194 (Skelly) and awarded her back pay.  However, the City did not subsequently pay Bedard the back pay.

 

Bedard filed a petition for writ of mandate in the trial court, arguing the disciplinary action was procedurally and legally invalid, and seeking reinstatement and back pay.  The trial court found the termination was justified, but the City violated Bedard’s due process rights by giving her insufficient time to respond to the allegations.  The trial court awarded her back pay.

 

Bedard appeals, arguing her termination was improper because it (1) was entirely based on her failing to sign the Notice, which was an illegal contract; (2) was too harsh a penalty under the circumstances; and (3) violated Skelly.  We affirm.

 

https://www.courts.ca.gov/opinions/documents/B331062.PDF

 

Osborne v. Pleasanton Automotive Co., LP, et al. (CA1/2 A167118 10/31/24) Litigation Privilege | Anti-SLAPP

 

In March 2020, Plaintiff Eva Osborne sued Defendants Pleasanton Automotive Company, LOP Automotive Company LP, HAG Automotive Investments LP (collectively, HAG), and its Executive General Manager and Market Area Vice President, Bob Slap.  The suit asserted eight causes of action for discrimination, retaliation, harassment, failure to prevent harassment and retaliation and wage and hour violations arising from alleged workplace misconduct by Slap during four years when Osborne was working as Slap’s executive assistant.  

 

Two-plus years into the litigation, Slap filed a cross-complaint against Osborne, alleging statements in a letter she submitted to HAG’s human resources director three months before she filed suit constituted libel, slander, intentional infliction of emotional distress, intentional interference with contractual relations and negligence.  In response, Osborne filed a special motion to strike (the motion) under the anti-SLAPP law (Code Civ. Proc., § 425.16), contending Slap’s claims against her arose out of protected activity she undertook in anticipation of litigation.  She asserted Slap could not show he would likely prevail on the merits because, among other reasons, her statements were absolutely privileged by Civil Code section 47, subdivision (2).

 

In a thorough, well-reasoned opinion, Alameda Superior Court Judge Eumi Lee granted Osborne’s motion, concluding her statements were protected activity under the anti-SLAPP statute and rejecting Slap’s arguments that they were extortionate and illegal as a matter of law.  The court held Slap could not establish minimal merit in his claims, as required to withstand an anti-SLAPP challenge, because Osborne’s statements were both absolutely and conditionally privileged under Civil Code section 47 and Slap failed to overcome the conditional privilege with a showing of malice.  Slap appealed.

Applying de novo review, we likewise reject Slap’s attempt to invoke an exception to the anti-SLAPP statute for activity that is illegal as a matter of law and conclude the litigation privilege bars Slap’s claims, preventing him from meeting his burden under the second step of the anti-SLAPP analysis to show his claims have minimal merit.  We therefore affirm the trial court’s decision granting Osborne’s motion.  We need not reach Osborne’s alternative arguments that the conditional privilege applies, that Slap has failed to show malice or that Slap has failed to make a prima facie showing on his claims. 

 

https://www.courts.ca.gov/opinions/documents/A167118.PDF

​

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