CALIFORNIA CASE LAW ALERT

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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Bradsbery v. Vicar Operating, Inc. (CA2/7 B322799N, filed 4/21/25, second mod. 5/21/25) Meal Period Waivers

THE COURT:

It is ordered that the opinion filed herein on April 21, 2025, be modified as follows:

On pages 8 to 9, footnote 3 shall be deleted and the following footnote 3 is inserted in its place:

Wage Order No. 4 applies to all employees “in professional, technical, clerical, mechanical, and similar occupations” (see Cal. Code Regs., tit. 8, § 11040, subd. (1)), while Wage Order No. 5 governs employees in the public housekeeping industry (Cal. Code Regs., tit. 8, § 11050, subd. (1)).

This modification does not change the appellate judgment.

https://www4.courts.ca.gov/opinions/documents/B322799N.PDF

Bradsbery v. Vicar Operating, Inc. (CA2/7 B322799M, filed 4/21/25, mod. 5/20/25) Meal Period Waivers

THE COURT:

It is ordered that the opinion filed herein on April 21, 2025, be modified as follows:

On pages 8 to 9, footnote 3 shall be deleted and the following footnote 3 is inserted in its place:

This modification does not change the appellate judgment.

https://www4.courts.ca.gov/opinions/documents/B322799M.PDF

Parker v. BNSF Railway Co. (9th Cir. 22-35695 5/15/25) Federal Railroad Safety Act

The en banc court affirmed the district court’s judgment after a bench trial in favor of BNSF Railway Co., the defendant in a retaliation action under the Federal Railroad Safety Act.

Conductor Curtis Rookaird alleged that BNSF fired him in retaliation for engaging in protected activity by testing the air brakes on railcars. After a bench trial on remand from this court, the district court concluded that Rookaird met his burden of proving, by a preponderance of the evidence, that the air-brake test was a contributing factor to the firing. The district court further found, however, that BNSF met its burden of proving that it would have fired Rookaird anyway.

The en banc court held that the district court applied the correct burden of proof from the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century, or “AIR21,” and permissibly determined that the air-brake test played a small role in BNSF’s firing decision. Because even a small contribution suffices under the applicable lenient standard, Rookaird properly prevailed at this step of the analysis.

The en banc court held that under the AIR21 standard, if the plaintiff meets their initial burden, then the defendant faces a steep burden in proving, by clear and convincing evidence, the affirmative defense that it would have taken the same unfavorable personnel action in the absence of the protected behavior. The en banc court concluded that the district court correctly applied this legal standard. Reviewing for clear error, the en banc court affirmed the district court’s finding that BNSF met the AIR21 standard’s high bar and established the affirmative defense.

https://cdn.ca9.uscourts.gov/datastore/opinions/2025/05/15/22-35695.pdf

Hearn v. Pacific Gas & Electric Co., 108 Cal.App.5th 301 (2025), review granted, 2025 WL 1404484 (May 14, 2025) S289581/A167742, A167991 Defamation | Wrongful Discharge

Petition for review after affirmance in part and reversal in part of judgment. May a terminated employee bring a defamation claim against a former employer when the defamation allegedly contributed to the reasons for the termination of that employment or must such a claim be pursued under a wrongful discharge theory? Review granted/brief due.

Docket

Court of Appeal Decision

Rodriguez v. Packers Sanitation Services, Ltd., 109 Cal.App.5th 69 (2025), review granted, 2025 WL 1404550 (May 14, 2025) S290182/D083400 Arbitration

Petition for review after denial of motion to compel arbitration. Further action in this matter is deferred pending consideration and disposition of related issues in Leeper v. Shipt, S289305 (see Cal. Rules of Court, rule 8.512(d)(2)), or pending further order of the court. Review granted/holding for lead case.

Docket

Court of Appeal Decision

Sanders v. Super. Ct. (CA2/7 B340707M, filed 5/6/25, mod. 5/14/25) Arbitration | Untimely Fee Payment

THE COURT:

The above-entitled opinion filed on May 6, 2025 is modified as follows:

On pages 30-31, in the second sentence of the disposition of this opinion, the words “on remand” should be deleted, and in the last sentence, the words “on appeal” should be replaced with “in this proceeding,” so the disposition reads:

The petition for writ of mandate is granted. Let a peremptory writ of mandate issue directing the trial court to vacate its order denying Sanders’s motion to withdraw from arbitration under section 1281.98, subdivision (b)(1), and allowing Sanders to pursue her claims in court. The trial court should conduct further proceedings consistent with this opinion on Sanders’s motion for sanctions under section 1281.99, subdivision (a). Sanders shall recover her costs in this proceeding.

There is no change in the appellate judgment.

https://www4.courts.ca.gov/opinions/documents/B340707M.PDF

Rose v. Hobby Lobby Stores (CA1/2 A169640 5/14/25) PAGA Prevailing Defendant | Cost Recovery against LWDA

Plaintiff Kelly Rose, who had been employed by Hobby Lobby Stores, Inc. (Hobby Lobby) as a cashier, sued her former employer under the Labor Code Private Attorneys General Act of 2004 (Lab. Code, § 2698 et seq. (PAGA)) alleging Hobby Lobby had violated the “suitable seating” provisions of the applicable Industrial Welfare Commission Wage Order. After a nine-day bench trial, the court found for Hobby Lobby, and judgment was entered in its favor. In a separate appeal, we affirmed the judgment. (Rose v. Hobby Lobby Stores, Inc. (March 25, 2025, A168301) [nonpub. opn.].)

The present appeal arises from the trial court’s award of nearly $125,000 in litigation costs as a matter of right to Hobby Lobby as the prevailing party under the general cost recovery rule set out in Code of Civil Procedure section 1032, subdivision (b) (section 1032(b)). The trial court ordered the California Labor and Workforce Development Agency (LWDA) to pay the costs even though the LWDA, while undisputedly the real party in interest, had not participated in the litigation. The LWDA appeals, raising an issue of first impression: Is the LWDA liable for the litigation costs incurred by a prevailing defendant in an action filed under PAGA?

We conclude that even if a prevailing defendant in a PAGA action is entitled to recover its costs under the general cost recovery rule set forth in section 1032(b)—an issue we need not decide—those costs are not recoverable against the LWDA where it did not participate in the litigation. Accordingly, we reverse the trial court costs order.

https://www4.courts.ca.gov/opinions/documents/A169640.PDF

Nazaryan v. Femtometrix (CA4/3 G061412M part. pub. 4/23/25, mod., limited rhng. Den. 5/13/25) Settlement Stock | 1099 Miscellaneous Income

It is ordered that the opinion filed April 23, 2025, be modified as follows:

On page 26, second sentence, under the disposition section, delete the following:

“Plaintiff shall recover his costs incurred on appeal.”

And in its place insert the following:

“Plaintiff shall recover his costs incurred on the appeal filed by FemtoMetrix, Rubin, and Raphael. Rolfes and Larzelere shall recover their costs incurred on plaintiff’s cross-appeal.”

There is no change in the judgment.

The petition filed by defendants Tom Rolfes and Brian Larzelere for limited rehearing is DENIED.

https://www4.courts.ca.gov/opinions/documents/G061412M.PDF

Hofer v. Boladian (CA2/5 B339542 5/9/25) Arbitration Waiver (not an employment case, but may be applicable)

Under the California Arbitration Act (Code Civ. Proc., § 1280 et seq.) (the Act),1 a party with a contractual “right to compel arbitration” of a dispute may “waive[]” that right. (§ 1281.2, subd. (a).) In Quach v. California Commerce Club, Inc. (2024) 16 Cal.5th 562 (Quach), our Supreme Court overruled the arbitration-specific definition of waiver embraced in St. Agnes Medical Center v. PacifiCare of California (2003) 31 Cal.4th 1187 (St. Agnes) in favor of the “generally applicable” definition of waiver. (Quach, at p. 578.) Quach held that a waiver occurs under the Act if, by clear and convincing evidence, it is shown that a party has “intentionally relinquished or abandoned” its known right to compel arbitration. (Id. at pp. 569, 584.) In this case, the litigants seeking to compel arbitration initiated this lawsuit by filing a complaint in court and, while in the judicial forum, sought two forms of preliminary injunctive relief, opposed a demurrer, propounded more than 700 discovery requests, demanded a jury trial in their case management conference statement and represented they would be litigating substantive motions, and posted jury fees. It was not until the opposing party filed a cross-complaint that the litigants filed the motion to compel arbitration—more than six months into the litigation in court. Does the litigants’ conduct in this case constitute a waiver under Quach? We conclude it does, and affirm the trial court’s order denying the motion to compel.

https://www4.courts.ca.gov/opinions/documents/B339542.PDF

DeFrancesco v. Robbins (9th Cir. 23-16147 per curiam 5/7/25) First Amendment | Whistleblower Retaliation

The panel affirmed the district court’s dismissal on qualified immunity grounds of Anthony DeFrancesco’s complaint alleging that he was harassed and then fired from his position as the Senior Director of Operations at the University of Arizona Health Sciences division (“UAHS”) in retaliation for his husband’s whistleblowing speech, in violation of the First Amendment.

DeFrancesco’s husband, who had earlier also held a high position at the University of Arizona as Senior Vice President and Chief Financial Officer, opposed the UAHS’s hiring of Michael Dake to serve as UAHS Senior Vice President. After Dake was hired, DeFrancesco’s husband voluntarily left his position with the University. DeFrancesco contends that Dake harassed and subsequently terminated him from his position because of his husband’s speech. DeFrancesco sued Dake and University President Robert Robbins, alleging that they infringed upon his First Amendment right to be free from retaliation for his husband’s allegedly protected whistleblowing speech.

The panel held that defendants were entitled to qualified immunity because it was not clearly established at the time of DeFrancesco’s termination in June 2019 that defendants’ adverse treatment of DeFrancesco on account of his husband’s speech violated the First Amendment. In so holding, the panel left for another day the merits of the underlying constitutional question of whether a public employee has constitutional protection from retaliation based on a close family member’s speech, in this case a family member who is also a public employee.

Concurring, Judge Berzon wrote separately to explain that although the familial antiretaliation protection under the First Amendment was not clearly established at the time of DeFrancesco’s termination, she would reach the first prong of the qualified immunity analysis and hold that such protection is well-grounded in Supreme Court and Ninth Circuit precedent. Judge Berzon would conclude that, taking the facts alleged in DeFrancesco’s complaint as true and drawing all reasonable inferences in his favor, defendants violated DeFrancesco’s constitutional protection against retaliation for his husband’s speech.

https://cdn.ca9.uscourts.gov/datastore/opinions/2025/05/07/23-16147.pdf

United States, et al. v. Shilling, Commander, et al., (US 24A1030 order 5/6/25) Transgender Ban in Military

The application for stay presented to Justice Kagan and by her referred to the Court is granted. The March 27, 2025 preliminary injunction entered by the United States District Court for the Western District of Washington, case No. 2:25-cv241, is stayed pending the disposition of the appeal in the United States Court of Appeals for the Ninth Circuit and disposition of a petition for a writ of certiorari, if such a writ is timely sought. Should certiorari be denied, this stay shall terminate automatically. In the event certiorari is granted, the stay shall terminate upon the sending down of the judgment of this Court.

Justice Sotomayor, Justice Kagan, and Justice Jackson would deny the application.

https://www.supremecourt.gov/orders/courtorders/050625zr_6j37.pdf

Sanders v. Super. Ct. (CA2/7 B340707 5/6/25) Arbitration | Untimely Fee Payment

Mone Yvette Sanders filed a putative class and representative action against her former employer, Edward D. Jones & Co., L.P. (Edward Jones), alleging wage and hour claims under the Labor Code as well as a cause of action under the Private Attorneys General Act of 2004 (PAGA; Lab. Code, § 2698 et seq.). Pursuant to the parties’ arbitration agreement, the trial court granted Edward Jones’s motions to compel arbitration of Sanders’s individual Labor Code and PAGA claims and stayed the representative PAGA cause of action pending completion of the arbitration.

Sanders initiated the arbitration, and the arbitrator set an arbitration hearing date, but Edward Jones failed to pay $54,000 in fees and costs billed by the arbitrator within 30 days of the payment-due date as mandated by Code of Civil Procedure section 1281.98, subdivision (a)(1). Sanders then filed a motion in the trial court under section 1281.98, subdivision (b)(1), to vacate the order compelling arbitration and to proceed in the trial court. Subdivision (b)(1) provides with respect to an employment or consumer arbitration that upon a failure of the party that drafted the arbitration agreement (drafting party) to pay the required fees and costs under subdivision (a) within the 30-day deadline, “the employee or consumer may unilaterally elect to do any of the following,” including to “[w]ithdraw the claim from arbitration and proceed in a court of appropriate jurisdiction.” The court denied the motion, finding section 1281.98 was preempted by the Federal Arbitration Act (FAA; 9 U.S.C. § 1 et seq.).

Sanders filed a petition for writ of mandate, and we issued an order to show cause. We agree with the numerous Courts of Appeal that have concluded section 1281.98 furthers the goal of the FAA to require expeditious arbitration of disputes and, accordingly, the section is not preempted by the FAA. Moreover, contrary to Edward Jones’s contention, the California Supreme Court in its recent decision in Quach v. California Commerce Club, Inc. (2024) 16 Cal.5th 562 (Quach) did not expand the scope of FAA preemption to encompass all state arbitration-specific rules, including those that favor arbitration. Rather, the court in Quach invalidated a judicially created waiver requirement that a party seeking to avoid arbitration show it was prejudiced. (Id. at p. 569.) By contrast, section 1281.98 is a procedural rule contained in the California Arbitration Act (CAA), which the parties implicitly agreed in their arbitration agreement would apply to their arbitration.

We also reject Edward Jones’s contention that under the arbitration agreement Sanders was required to submit to the arbitrator the issue whether Edward Jones was in default. The plain language of section 1281.98 vests in the employee or consumer the unilateral right upon the drafting party’s failure to timely pay fees to withdraw from the arbitration and proceed in court.

Accordingly, the trial court erred in denying Sanders’s motion to vacate the order compelling arbitration. We now grant the petition for writ of mandate.

https://www4.courts.ca.gov/opinions/documents/B340707.PDF

L.A. College Faculty Guild, etc. v. L.A. Community College Dist. (CA2/8 B339084, filed 4/10/25, pub. 5/2/25) Arbitration | CBA

The Los Angeles College Faculty Guild, AFT Local 1521 asks us to reverse the trial court’s denial of its motion to compel arbitration of three grievances against the Los Angeles Community College District. This request conflicts with our decision in Los Angeles College Faculty Guild 1521 v. Los Angeles Community College District (2022) 83 Cal.App.5th 660 (Faculty Guild), where we considered a similar dispute between the same parties and the same collective bargaining agreement. In Faculty Guild, we held that the dispute between the Guild and the District was outside the scope of the arbitration provision in their collective bargaining agreement. (Faculty Guild, 83 Cal.App.4th at p. 669.) Today the Guild’s grievances again are beyond the scope of the parties’ arbitration agreement. We affirm the trial court.

References to “the Agreement” mean the collective bargaining agreement between the parties, and citations to any Article refer to articles in the Agreement.

https://www4.courts.ca.gov/opinions/documents/B339084.PDF

Feliciano v. Dept. of Transportation (US 23–861 4/30/25) Differential Pay for Civilian Reservists

Tens of thousands of federal civilian employees serve the Nation as military reservists. When called to active duty, these reservists often receive less pay than they earn in their civilian jobs. To address this gap, Congress adopted a “differential pay” statute requiring the government to make up the difference between a federal civilian employee’s military and civilian pay in various circumstances, including when the reservist is called to active duty “during a national emergency.” At issue here is whether this language guarantees differential pay when a reservist serves on active duty while a national emergency is ongoing, or whether it requires proving a “substantive connection” between the service and a particular national emergency.

Petitioner Nick Feliciano, an air traffic controller with the Federal Aviation Administration, also served as a Coast Guard reserve petty officer. In July 2012, the Coast Guard ordered him to active duty under 10 U. S. C. §12301(d), which authorizes activation of reservists with their consent. He remained on active duty until February 2017, serving aboard a Coast Guard ship escorting vessels to and from harbor. His orders noted that he was called to active duty “in support of” several “contingency operation[s],” including Operations Iraqi Freedom and Enduring Freedom. Throughout this period, Feliciano did not receive differential pay for his service pursuant to orders under §12301(d). After the Merit Systems Protection Board rejected his differential-pay claim, he appealed to the Federal Circuit.

Feliciano argued that two statutes entitled him to differential pay: 5 U. S. C. §5538(a) and 10 U. S. C. §101(a)(13)(B). Section 5538(a) requires differential pay for federal civilian employee reservists ordered to active duty “under . . . a provision of law referred to in” §101(a)(13)(B). Section 101(a)(13)(B) defines “contingency operation to include operations that result in the call to active duty of servicemembers under several enumerated statutes “or any other provision of law during a war or during a national emergency declared by the President or Congress.” While acknowledging he was not called up under any of the specifically listed statutes, Feliciano contended that the final phrase entitled him to differential pay because he was ordered to active duty under “any other provision of law” (§12301(d)) “during a national emergency.”

The Federal Circuit disagreed. Following its earlier decision in Adams v. Department of Homeland Security, 3 F. 4th 1375, the court held that when a reservist seeks differential pay for service “during a national emergency,” he must show not only that he served while a national emergency was ongoing, but also that a substantive connection linked his service to a particular national emergency.

Held: A federal civilian employee called to active duty pursuant to “any other provision of law . . . during a national emergency” as described in §101(a)(13)(B) is entitled to differential pay if the reservist’s service temporally coincides with a declared national emergency without any showing that the service bears a substantive connection to a particular emergency. Pp. 4–16.

(a) Several considerations support this interpretation. First, the word “during” normally “denotes a temporal link” and means “contemporaneous with.” United States v. Ressam, 553 U. S. 272, 274–275. It does not generally imply any substantive connection. Absent evidence that Congress intended a specialized meaning, those governed by law are entitled to rely on its ordinary meaning. Pp. 4–6.

(b) Contextual clues strengthen this conclusion. When Congress intends to require both temporal and substantive connections, it has done so expressly, using phrases like “during and in relation to” or “during and because of” in various statutes. So the absence of any words hinting at a substantive connection in the statute at issue here supplies a telling clue that it operates differently and imposes a temporal condition alone. See Ysleta del Sur Pueblo v. Texas, 596 U. S. 685, 704. Additionally, one of the specific provisions that can trigger differential pay, 10 U. S. C. §12302, authorizes activation of reservists “[i]n time of national emergency”—language the government contends speaks only temporally. If that phrase requires no substantive connection, it is implausible that “during a national emergency” in §101(a)(13)(B) would do so. Moreover, requiring a substantive connection would create interpretive difficulties, as the statute provides no principled way to determine what kind of substantive connection would suffice. The government’s interpretation would also create tension with 18 U. S. C. §209, potentially criminalizing differential pay given by private employers to reservists, even though nothing in the phrase “during a national emergency” tells a private employer that a substantive connection is required, let alone what sort of connection must exist. Finally, when the Congressional Budget Office scored similar legislation to help Congress understand the likely impact of proposed legislation, it calculated costs based on “the total number of reservists on active duty,” not just those engaged in emergency-related duties. CBO’s approach provides further evidence of how an ordinary reader might have understood the statutory language at issue here. Pp. 6–9.

(c) The government’s counterarguments are unpersuasive. First, although the word “during” can sometimes imply more than a temporal connection depending on context, in this statutory context a purely temporal relationship is meaningful. A reservist’s active-duty service during a national emergency bolsters the government’s capacity to address that emergency whether or not his service directly relates to it. Second, the government’s surplusage argument—that a temporal-only reading would render the phrase meaningless given the perpetual existence of national emergencies—fails for several reasons: The interpretation leaves no part of the statute without work to do; the argument depends on contingent factual assumptions about the permanence of emergency declarations; similar statutes use temporal language without requiring substantive connections; and the statute provides no principled way to determine what kind of substantive connection would suffice. Finally, the potential policy consequences the government highlights cannot overcome the statute’s most natural reading. Pp. 9–16.

Reversed and remanded.

GORSUCH, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SOTOMAYOR, KAVANAUGH, and BARRETT, JJ., joined. THOMAS, J., filed a dissenting opinion, in which ALITO, KAGAN, and JACKSON, JJ., joined.

https://www.supremecourt.gov/opinions/24pdf/23-861_7lh8.pdf

Reyes v. Hi-Grade Materials Co. (CA4/1 D085178 4/29/25) PAGA | Death Knell Doctrine

Plaintiff Angel D. Chavez Reyes (Chavez) seeks to appeal an order denying his motion for class certification in a putative wage and hour class action brought against defendants Hi-Grade Materials Co. and Robar Enterprises, Inc. After the order was entered, Chavez’s individual claims and four representative causes of action under the Private Attorney General Act of 2004 (PAGA) (Lab. Code, § 2698 et seq.) remained pending.

On appeal, Chavez argues that the order denying class certification is appealable under the death knell doctrine, which provides an exception to the general rule that interlocutory orders are not immediately appealable. In their respondents’ brief, however, defendants correctly point out that the death knell doctrine does not apply when representative PAGA claims remain pending after the trial court has denied class certification. The defendants thus argue that the appeal must be dismissed for lack of jurisdiction. In response, over a year after filing this appeal, Chavez voluntarily dismissed his PAGA claims without prejudice in the trial court. We are therefore confronted with a novel jurisdictional question: Can a putative class action plaintiff unilaterally ring the death knell for the entire class and retroactively create appellate jurisdiction by voluntarily dismissing all remaining representative claims long after class certification has been denied?

We conclude that the answer is no. Chavez is attempting to appeal a nonappealable order, as his PAGA claims remained viable and pending at the time he filed his notice of appeal. His voluntary dismissal of the remaining PAGA claims over a year later was not itself appealable and did not retroactively make the class certification order appealable. We therefore conclude the death knell doctrine does not apply here, and we do not have jurisdiction to entertain Chavez’s appeal from the order denying class certification. Any appeal of the class certification order must now await entry of a final judgment disposing of all claims. Accordingly, we dismiss the appeal for lack of jurisdiction.

https://www4.courts.ca.gov/opinions/documents/D085178.PDF

Nazaryan v. Femtometrix (CA4/3 G061412 part. pub. 4/23/25) Settlement Stock | 1099 Miscellaneous Income

The instant appeal arises out of a settlement agreement resolving a prior action between plaintiff Hovik Nazaryan and defendants FemtoMetrix, Inc. (FemtoMetrix), Alon Raphael, Tyler Rubin, Brian Larzelere, and Tom Rolfes. The settlement agreement said stock issued to plaintiff in settlement was not compensation, salary, or income for his services to FemtoMetrix. Instead, the parties would classify the settlement stock as “‘Founder’s Stock’” for plaintiff’s “capital/equitable contributions . . . to the extent permitted by law.” Defendants subsequently issued 1099-MISC forms (1099 forms) characterizing the settlement stock as non-employee compensation. Plaintiff initiated the underlying action alleging, among other things, defendants breached the settlement agreement and violated Internal Revenue Code section 7434 (26 U.S.C. § 7434) by issuing the 1099 forms. The trial court held FemtoMetrix, Rubin, and Raphael breached the settlement agreement and issued fraudulent information returns under section 7434. But the court held Larzelere and Rolfes were not liable.

Defendants raise four arguments on appeal. First, they contend only FemtoMetrix (not Rubin or Raphael) can be liable under section 7434. Second, they claim there is no substantial evidence they “willfully” filed fraudulent information returns as required under section 7434. Third, they argue plaintiff’s breach of contract claim is barred by the civil litigation privilege under Civil Code section 47, subdivision (b) to the extent it is based on the 1099 forms filed with the Internal Revenue Services (IRS). Finally, defendants contend they could not have breached the settlement agreement because they had a duty to report the settlement stock.

Plaintiff also cross-appeals and argues the court erred by finding Rolfes and Larzelere were not liable for breaching the settlement agreement. Plaintiff insists the settlement agreement’s stock classification provision imposed a joint and several promise. We disagree with both defendants’ and plaintiff’s contentions. For the reasons post, we affirm the judgment.

https://www4.courts.ca.gov/opinions/documents/G061412.PDF

Williams v. Alacrity Solutions Grp. (CA2/5 B335445 4/22/25) Suing for PAGA Civil Penalties | Individual Claim and SOL Requirements

The Private Attorneys General Act (PAGA) (Lab. Code, § 2698 et seq.) authorizes an “aggrieved employee” to step into the shoes of the State of California and sue for civil penalties premised on certain violations of the Labor Code “on behalf of himself or herself and other current or former employees.” (Former § 2699, subd. (a); Kim v. Reins International California, Inc. (2020) 9 Cal.5th 73, 81 (Kim).) In this case, a former employee was barred by the statute of limitations from suing his former employer for civil penalties on his own behalf under PAGA. (Code Civ. Proc., § 340, subd. (a) [one-year limitations period].) So the former employee sued solely to recover penalties “on behalf of . . . other current and former employees.” Is this allowed? We hold it is not. To be a PAGA plaintiff (under the statutes in effect prior to July 1, 2024), a private individual must, among other things, seek to recover civil penalties on his own behalf for that violation (Leeper v. Shipt, Inc. (2024) 107 Cal.App.5th 1001, 1008-1010 (Leeper), review granted Feb. 18, 2025), and must establish that this so-called “individual claim” is timely as to at least one Labor Code violation (Arce v. The Ensign Group, Inc. (2023) 96 Cal.App.5th 622, 630 (Arce); LaCour v. Marshalls of California, LLC (2023) 94 Cal.App.5th 1172, 1184-1185 (LaCour); Hutcheson v. Superior Court (2022) 74 Cal.App.5th 932, 939 (Hutcheson); Esparza v. Safeway, Inc. (2019) 36 Cal.App.5th 42, 59 (Esparza); Brown v. Ralphs Grocery Co. (2018) 28 Cal.App.5th 824, 839 (Brown)). Because the employee in this case has not and cannot satisfy these requirements, the trial court properly sustained a demurrer to the PAGA action without leave to amend. We accordingly affirm.

https://www4.courts.ca.gov/opinions/documents/B335445.PDF

Bradsbery v. Vicar Operating, Inc. (B322799 CA2/7 4/21/25) Meal Period Waivers

The Legislature and the Industrial Welfare Commission (IWC) have determined a meal period for work shifts between five and six hours may be waived. The question before us is narrow and of first impression: whether the mutual waiver of that meal period by an employer and employee can occur prospectively and in writing. Labor Code section 512 guarantees a 30-minute, off-duty meal period for employees after five work hours and a second meal period after 10 work hours. Section 512 also provides that, for shifts between five and six hours, the first meal period “may be waived by mutual consent of both the employer and employee.” (§ 512, subd. (a).) The relevant wage orders issued by the IWC similarly provide for meal periods and their waiver.

In 2014, La Kimba Bradsbery and Cheri Brakensiek (collectively, Plaintiffs) sued their former employer, Vicar Operating, Inc. (Vicar), alleging claims on behalf of a class of Vicar employees. As relevant here, Plaintiffs alleged Vicar failed to provide them with the meal periods required by section 512 and IWC Wage Order Nos. 4-2001 (Wage Order No. 4) and 5-2001 (Wage Order No. 5). Vicar asserted Plaintiffs signed a valid written agreement that prospectively waived all waivable meal periods throughout Plaintiffs’ employment with Vicar. The agreement provided Plaintiffs could revoke the agreement at any time. Vicar moved for summary adjudication regarding the validity of this waiver under section 512 and the wage orders. The trial court determined the waivers were valid and ruled for Vicar.

Plaintiffs aver prospective waivers permit employers to circumvent the statutory meal break requirements and deny employees a meaningful opportunity to exercise their right to meal breaks. The text and legislative and administrative history do not support these arguments. Further, Plaintiffs do not argue the waivers are unconscionable or that they impede or discourage workers from taking meal breaks. Nor do Plaintiffs argue that they unknowingly signed the waivers, that Vicar coerced them into signing the waivers because it had greater bargaining power, or that they could not freely revoke the waivers at any time. While we would hesitate to uphold a prospective written waiver under such circumstances, this case does not present them.

We conclude the revocable, prospective waivers Plaintiffs signed are enforceable in the absence of any evidence the waivers are unconscionable or unduly coercive. The prospective written waiver of a 30‑minute meal period for shifts between five and six hours accords with the text and purpose of section 512 and Wage Order Nos. 4 and 5. The legislative and administrative history confirms the Legislature and IWC determined such waivers are consistent with the welfare of employees. We also conclude Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004 (Brinker) does not require a contrary result. Accordingly, we affirm.

https://www4.courts.ca.gov/opinions/documents/B322799.PDF

Leeper v. Shipt, Inc. (2024) 107 Cal.App.5th 1001 (SC S289305/B339670, depub. den., rev. court’s own motion 4/16/25) PAGA

The issues to be briefed and argued are limited to the following: 1.) Does every Private Attorneys General Act (Lab. Code, § 2698 et seq.) (PAGA) action necessarily include both individual and non-individual PAGA claims, regardless of whether the complaint specifically alleges individual claims? 2.) Can a plaintiff choose to bring only a non-individual PAGA action?

For the purposes of briefing and oral argument, Christina Leeper is deemed the petitioner in this court. (Cal. Rules of Court, rule 8.520(a)(6).)

Pending review, the opinion of the Court of Appeal, which is currently published at 107 Cal.App.5th 1001, may be cited, not only for its persuasive value, but also for the limited purpose of establishing the existence of a conflict in authority that would in turn allow trial courts to exercise discretion under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456, to choose between sides of any such conflict. (See Standing Order Exercising Authority Under California Rules of Court, Rule 8.1115(e)(3), Upon Grant of Review or Transfer of a Matter with an Underlying Published Court of Appeal Opinion, Administrative Order 2021-04-21; Cal. Rules of Court, rule 8.1115(e)(3) and corresponding Comment, par. 2.)

The requests for an order directing depublication of the opinion in the above-entitled appeal are denied.

Votes: Guerrero, C. J., Corrigan, Liu, Kruger, Groban, Jenkins and Evans, JJ.

Review granted/brief due.

Docket

Opinion Below

Cunningham v. Cornell Univ. (US 23-1007 per curium 4/17/25) ERISA

The Employee Retirement Income Security Act of 1974 (ERISA) prohibits plan fiduciaries from causing a plan to engage in certain transactions with parties in interest. 29 U. S. C. §1106. A separate provision, §1108(b)(2)(A), exempts from these prohibitions any transaction that involves “[c]ontracting or making reasonable arrangements with a party in interest for office space, or legal, accounting, or other services necessary for the establishment or operation of the plan, if no more than reasonable compensation is paid therefor.” The question presented is whether, to state a claim under §1106, a plaintiff must plead that §1108(b)(2)(A) does not apply to an alleged prohibited transaction.

Petitioners represent a class of current and former Cornell University employees who participated in two defined-contribution retirement plans from 2010 to 2016. In 2017, they sued Cornell and other plan fiduciaries for allegedly causing the plans to engage in prohibited transactions for recordkeeping services with the Teachers Insurance and Annuity Association of America-College Retirement Equities Fund and Fidelity Investments Inc., in violation of §1106(a)(1)(C). Petitioners claimed the plans paid these service providers substantially more than reasonable recordkeeping fees. The District Court dismissed the prohibited-transaction claim, and the Second Circuit affirmed. The Second Circuit held that §1108(b)(2)(A) is incorporated into §1106(a)’s prohibitions, requiring plaintiffs to plead that a transaction was “unnecessary or involved unreasonable compensation” to survive a motion to dismiss. 86 F. 4th 961, 975.

Held: To state a claim under §1106(a)(1)(C), a plaintiff need only plausibly allege the elements contained in that provision itself, without addressing potential §1108 exemptions. Pp. 6–15.

(a) Section 1106(a)(1)(C) contains three elements: It prohibits fiduciaries from (1) “caus[ing a] plan to engage in a transaction” (2) that the fiduciary “knows or should know . . . constitutes a direct or indirect . . . furnishing of goods, services, or facilities” (3) “between the plan and a party in interest.” Its bar is categorical and does not remove from its scope transactions that were necessary or involved reasonable compensation. The exemptions in §1108 do not impose additional pleading requirements for §1106(a)(1) claims. When a statute has “exemptions laid out apart from the prohibitions,” and the exemptions “expressly refe[r] to the prohibited conduct as such,” the exemptions ordinarily constitute “affirmative defense[s]” that are “entirely the responsibility of the party raising” them. Meacham v. Knolls Atomic Power Laboratory, 554 U. S. 84, 91, 95. Like the exemptions at issue in Meacham, the §1108 exemptions are structured as affirmative defenses that must be pleaded and proved by defendants who seek to benefit from them. Pp. 6–8.

(b) Respondents’ contrary arguments are unpersuasive. First, the “[e]xcept as provided in section 1108” language in §1106(a) does not incorporate §1108 exemptions as elements of §1106(a) violations. That reading ignores that Congress wrote the §1108 exemptions “in the orthodox format of an affirmative defense” separate from the prohibitions. Meacham, 554 U. S., at 102. The headings of the sections, “Prohibited transactions” for §1106 and “Exemptions from prohibited transactions” for §1108, confirm this understanding. Respondents also fail to explain why some but not all §1108 exemptions should be treated as elements of §1106(a) claims. Yet requiring plaintiffs to plead and disprove all potentially relevant §1108 exemptions would be impractical, given that there are 21 statutory exemptions and hundreds of regulatory exemptions. Pp. 9–12.

(c) Respondents’ reliance on United States v. Cook, 17 Wall. 168, is misplaced. Cook established “a rule of criminal pleading” based on constitutional considerations not present in the civil context. United States v. Reese, 92 U. S. 214, 232. Even in criminal cases, it remains settled that “ ‘an indictment or other pleading . . . need not negative the matter of an exception made by a proviso or other distinct clause.’ ” Dixon v. United States, 548 U. S. 1, 13. Pp. 12–13.

(d) Finally, respondents’ practical concerns about meritless litigation cannot overcome the statutory text and structure. District courts have various tools at their disposal to screen out meritless claims, including requiring plaintiffs to file a reply addressing exemptions under Federal Rule of Civil Procedure 7(a), dismissing claims that fail to identify a concrete injury under Article III, limiting discovery, imposing Rule 11 sanctions, and ordering cost shifting under §1132(g)(1). Pp. 13–15.

86 F. 4th 961, reversed and remanded.

SOTOMAYOR, J., delivered the opinion for a unanimous Court. ALITO, J., filed a concurring opinion, in which THOMAS and KAVANAUGH, JJ., joined.

https://www.supremecourt.gov/opinions/24pdf/23-1007_h3ci.pdf

Tesla Motors, Inc. v. Balan (9th Cir. 22-16623 4/14/25) Arbitration | Subject Matter Jurisdiction | Defamation of Former Employee

Vacating the district court’s order granting Tesla, Inc. and Elon Musk’s petition to confirm an arbitration award, the panel held that the district court lacked subject matter jurisdiction to confirm the award pursuant to Badgerow v. Walters, 596 U.S. 1 (2022), which prohibits looking past the face of a petition under 9 U.S.C. § 9 to establish jurisdiction.

The panel held that, because a “look through” approach is prohibited under Badgerow, the facts establishing jurisdiction must be present on the face of the petition to confirm an arbitration award. Put differently, the facts establishing that the amount in controversy exceeds $75,000 must be present on the face of a Federal Arbitration Act (“FAA”) Section 9 petition to confirm an arbitration award before a district court can assert diversity jurisdiction over the action. That requirement is not satisfied here because, on its face, Tesla’s petition to confirm a zero-dollar award cannot support the amount in controversy requirement. Because jurisdictional facts establishing the amount in controversy requirement are not found on the face of the petition, and a court cannot “look through” the petition to the underlying substantive controversy under Section 9, the district court did not have subject matter jurisdiction. The panel rejected Tesla’s attempt to characterize this case as an FAA Section 3 case involving a stay.

Accordingly, the panel vacated the order confirming the arbitration award and remanded this action to the district court with instructions to dismiss for lack of jurisdiction.

https://cdn.ca9.uscourts.gov/datastore/opinions/2025/04/14/22-16623.pdf

Trump v. Wilcox (US 24A966 order 4/9/25) Stay | Reinstatement of NLRB and MSPB Board Members

UPON CONSIDERATION of the application of counsel for the applicants, IT IS ORDERED that the March 4, 2025 order of the United States District Court for the District of Columbia, case No. 25-cv-412, and the March 6, 2025 order of the United States District Court for the District of Columbia, case No. 25-cv-334, are hereby stayed pending further order of the undersigned or of the Court. It is further ordered that a response to the application be filed on or before Tuesday, April 15th, 2025, by 5 p.m. (EDT).

https://www.supremecourt.gov/orders/courtorders/040925zr_p8k0.pdf

U.S. Office of Personnel Mgmt., et al. v. American Fed. of Gov’t Employees, FL-CIO, et al., (US 24A904 Order 4/8/25) Reinstatement of Terminated Federal Employees

The application for stay presented to Justice Kagan and by her referred to the Court is granted. The March 13, 2025 preliminary injunction entered by the United States District Court for the Northern District of California, case No. 3:25-cv1780, is stayed pending the disposition of the appeal in the United States Court of Appeals for the Ninth Circuit and disposition of a petition for a writ of certiorari, if such a writ is timely sought. Should certiorari be denied, this stay shall terminate automatically. In the event certiorari is granted, the stay shall terminate upon the sending down of the judgment of this Court.

The District Court’s injunction was based solely on the allegations of the nine non-profit-organization plaintiffs in this case. But under established law, those allegations are presently insufficient to support the organizations’ standing. See, e.g., Clapper v. Amnesty Int’l USA, 568 U. S. 398 (2013). This order does not address the claims of the other plaintiffs, which did not form the basis of the District Court’s preliminary injunction.

Justice Sotomayor would deny the application.

Justice Jackson would have declined to reach the standing question in the context of an application for emergency relief where the issue is pending in the lower courts and the applicants have not demonstrated urgency in the form of interim irreparable harm. See Department of Education v. California, 604 U. S. ___, ___ (2025) (Jackson, J., dissenting) (slip op., at 1–2). Thus, she would have denied the application.

https://www.supremecourt.gov/orders/courtorders/040825zr_1b8e.pdf

Ford v. The Silver F (CA3 C099113, filed 3/25/25, pub. 4/8/25) PAGA | Arbitration

Defendant The Silver F, Inc., doing business as Parkwest Casino Lotus (Parkwest) appeals an order denying its motion to compel arbitration of plaintiff Billy Ford’s (Ford) individual claims to recover civil penalties under the Labor Code Private Attorneys General Act of 2004 (PAGA) (Labor Code, § 2698, et seq.). The trial court denied the motion based on a finding that the parties’ arbitration agreement specifically excluded all PAGA claims. Parkwest appeals, contending that the arbitration agreement is ambiguous as to whether it encompasses Ford’s individual PAGA claims and that such ambiguity should be resolved in favor of arbitration. Considering the language of the arbitration agreement and the circumstances surrounding its execution, we conclude the trial court correctly interpreted the agreement and therefore affirm.

https://www4.courts.ca.gov/opinions/documents/C099113.PDF

Odom v. L.A. Community College Dist. (CA2/8 B327997 4/7/25) Judge’s Arbitrary and Prejudicial Evidentiary Rulings

Defendants appeal from a judgment on a jury verdict awarding $10 million to plaintiff on her claims for sexual harassment, retaliation and related claims. We reverse the judgment, not for lack of substantial evidence, but for prejudicial errors in the admission of irrelevant and damaging “me-too” evidence from a witness who was not similarly situated to plaintiff, and for the equally prejudicial and erroneous admission of 20-year-old newspaper articles and other evidence of the alleged harasser’s misdemeanor convictions.

This is an unusual case, due to the significant arbitrary and prejudicial evidentiary rulings of the judge presiding over the trial. After the judgment was entered, defendants filed motions for a new trial (or in the alternative a remittitur) and for partial judgment notwithstanding the verdict (JNOV) (or in the alternative for remittitur). At the hearing on those motions, which were denied, the trial judge initiated extended, bizarre personal comments on racial matters with newly substituted defense counsel (the only Black woman in the courtroom), despite there being no racial issue of any kind in the case. Defendants filed a motion to disqualify the judge for cause and to void his rulings on the motions. After writ proceedings and referral to a neutral judge, the trial judge was disqualified and his rulings on the postjudgment motions were voided.

On this appeal from the judgment, we need not decide whether the trial judge’s prejudicially erroneous evidentiary rulings during the trial were motivated, in part, as defendants contend, by “persistent racial and gender bias.” It seems clear the judge’s rulings were motivated by personal opinions untethered to the rules of evidence. Whatever his motivations may have been, the judge admitted inflammatory evidence without consideration of the evidentiary rules, with undeniable prejudicial effect, thus preventing a fair trial. We accordingly reverse the judgment and order a new trial.

https://www4.courts.ca.gov/opinions/documents/B327997.PDF

Ops.Cal.Atty.Gen. 24-404 (4/2/25) California Citizens Compensation Commission | State Board of Equalization’s Compensation

Does the California Citizens Compensation Commission have the authority to adjust the compensation of the members of the State Board of Equalization to reflect a substantial reduction in their duties, powers, and responsibilities due to the passage of Assembly Bill 102 (The Taxpayer Transparency and Fairness Act of 2017)?

Yes, the Commission has authority to adjust the compensation of members of the State Board of Equalization to reflect a substantial legislative reduction in their functions and duties due to the passage of Assembly Bill 102.

https://oag.ca.gov/system/files/opinions/pdfs/24-404.pdf

Mandell-Brown v. Novo Nordisk Inc. et al. (CA2/5 B326147M 4/4/25) FEHA | Failure to File Separate Statement Opposing MSJ

Plaintiff Melissa Mandell-Brown appeals from the summary judgment entered on her FEHA and other employment claims after she did not file an opposition to the underlying motion. She contends, among other things, that the trial court erroneously granted the motion without first deciding whether defendants had met their initial burden on the motion.

Because the trial court did not abuse its discretion under Code of Civil Procedure section 437c (section 437c), subdivision (b)(3) by granting the motion based on plaintiff’s failure to file the requisite separate statement, we affirm.

https://www4.courts.ca.gov/opinions/documents/B326147M.PDF

Johnson v. Dept. of Transportation (CA3 C099319N, filed 3/17/25, mod 4/1/25 and 4/4/25) Attorney-Client Privilege

To correct a clerical error, the court vacates the April 1, 2025, order modifying the opinion and denying rehearing.

It is ordered that the published opinion filed herein on March 17, 2025, be modified as follows:

On page 8, in the first sentence of the first paragraph, the words “On January 10, 2023,” and “which stayed the case” are deleted, and the words “and on

January 10, 2023, this court stayed the case” are added. As modified, this sentence now reads:

Johnson filed a petition for writ of mandate in this court, and on January 10, 2023, this court stayed the case.

This modification does not change the judgment. Appellant’s petition for rehearing is denied.

https://www4.courts.ca.gov/opinions/documents/C099319N.PDF

Krug v. Board of Trustees of the Cal. State Univ. (CA2/1 B320588A 4/1/25) COVID-19 Employee Reimbursement

When the COVID-19 pandemic struck, the Board of Trustees of the California State University (CSU) directed that instruction be provided remotely. To comply with this directive, Patrick Krug, a biology professor at California State University Los Angeles, incurred expenses for a computer and other equipment and necessities which CSU declined to reimburse. Krug sued CSU on behalf of himself and similarly situated faculty, alleging Labor Code section 2802 obligated CSU to reimburse its employees for necessary work-related expenses. CSU demurred, arguing that as a department of the state it enjoyed broad exemption from Labor Code provisions that infringe on its sovereign powers. Krug appealed from a judgment of dismissal entered after the trial court sustained CSU’s demurrer without leave to amend.

We affirmed the judgment, holding that absent express words or positive indicia to the contrary, Labor Code section 2802 did not obligate CSU, a public institution, to reimburse employees for work-related expenses because CSU did not fall within the general words of the section, and subjecting CSU to the section in this case would impair its sovereignty by infringing on the broad discretion it enjoys under the Education Code to set its own equipment reimbursement policies.

Our Supreme Court granted review pending its decision in Stone v. Alameda Health System (2024) 16 Cal.5th 1040 (Stone), after which it remanded the matter to us for reconsideration in light of its holding in that case.

After reconsideration in light of Stone, we again affirm the judgment.

https://www4.courts.ca.gov/opinions/documents/B320588A.PDF

Johnson v. Dept. of Transportation (CA3 C099319M, filed 3/17/25, mod. 4/1/25) Attorney-Client Privilege

THE COURT: It is ordered that the published opinion filed herein on March 17, 2025, be modified as follows:

On page 11, in the first sentence of the first full paragraph, the words “On January 10, 2023,” and “which stayed the case” are deleted and the words “and on January 10, 2023, this court stayed the case” are added. As modified, this sentence now reads: 2 Johnson filed a petition for writ of mandate in this court, and on January 10, 2023, this court stayed the case.

This modification does not change the judgment. Appellant’s petition for rehearing is denied.

https://www4.courts.ca.gov/opinions/documents/C099319M.PDF

Catholic Charities Bureau, Inc. v. WI Labor Review Comm’n (US 24-154 Oral Argument Transcript 3/31/25) Unemployment Tax Exemption | Religious Charities

Wisconsin exempts from its state unemployment tax system certain religious organizations that are "operated, supervised, controlled, or principally supported by a church or convention or association of churches" and that are also "operated primarily for religious purposes." Petitioners are Catholic Charities of the Diocese of Superior and several sub-entities. Although all agree Catholic Charities is controlled by a church-the Diocese of Superior-the Wisconsin Supreme Court held that Catholic Charities is not "operated primarily for religious purposes" and thus does not qualify for the tax exemption. Specifically, the court held that Catholic Charities' activities are not "typical" religious activities because Catholic Charities serves and employs non-Catholics, Catholic Charities does not "attempt to imbue program participants with the Catholic faith," and its services to the poor and needy could also be provided by secular organizations.

The questions presented are:

Does a state violate the First Amendment's Religion Clauses by denying a religious organization an otherwise-available tax exemption because the organization does not meet the state's criteria for religious behavior?
In addressing federal constitutional challenges, may state courts require proof of unconstitutionality "beyond a reasonable doubt?"

Transcript

Audio

Decision Below

Sexton v. Apple Studios LLC (CA2/8 B333481 3/28/25) COVID-19 Vaccination

During the COVID-19 pandemic, Apple Studios LLC offered Brent Sexton a film role on the condition he get vaccinated. Sexton refused vaccination and sued Apple when it withdrew its offer and cast a different actor. The trial court erroneously denied Apple’s anti-SLAPP motion. Apple’s casting was conduct in furtherance of free speech in connection with two public issues: a prominent entertainment company (1) voted with its feet in the vaccination controversy and (2) decided how to portray an enigmatic figure in American history. On the merits, Apple’s evidence negated Sexton’s lawsuit. Sexton had no privacy claim because Apple was entitled to rely on authoritative views about sensible ways to protect its workplace. Sexton’s discrimination claims failed because he was unqualified for the work. Safety was a job requirement Sexton could not satisfy.

https://www4.courts.ca.gov/opinions/documents/B333481.PDF

American Federation of State etc. Employees et al. v. City of L.A. (CA2/7 B322224M mod. 3/27/25) Public Sector | Reciprocal Retirement Benefits

THE COURT:

It is ordered that the opinion filed herein on February 27, 2025 be modified as follows:

On page 28, under the DISPOSITION, the word “Employees” is deleted so that the sentence now read “The City and Local 18 are entitled to recover their costs on appeal.”

On page 23, footnote 9, delete the following fragment from the last sentence: “to treat DWP and the City as a ‘single employer,’ much less” so that the last sentence now reads “The fact that these separate retirement systems are both under the umbrella of the City of Los Angeles does not provide a basis to conclude either LACERS or WPERP members have a vested right to transfer between DWP and the City without any effect on their pension.”

There is a change in the appellate judgment.

The respective petitions for rehearing filed by respondent City of Los Angeles and respondent International Brotherhood of Electrical Workers, Local 18, are denied.

https://www4.courts.ca.gov/opinions/documents/B322224M.PDF

Cahill v. Nike, Inc. (9th Cir. 24-2199 3/18/25) Intervenor and Confidential Workplace Documents

The panel: (1) vacated the district court’s order denying a motion to require a media organization to return or destroy confidential documents that were inadvertently disclosed to it by counsel for the plaintiffs in an employment discrimination action; and (2) remanded for further proceedings.

Pursuant to a protective order, a collection of internal workplace complaints was produced to the plaintiffs on a confidential basis, and many of the documents were also sealed. The district court granted the motion of three media organizations, including Advance Local Media LLC d/b/a The Oregonian Media Group, to intervene. During a meeting with a reporter from The Oregonian, plaintiffs’ attorney inadvertently sent the reporter confidential documents. The district court declined to order The Oregonian to return or destroy those documents.

The panel held that it had jurisdiction over the appeal under 28 U.S.C. § 1292(a)(1) because the relief sought was injunctive in nature.

The panel held that the district court, as part of its inherent powers to oversee discovery in cases before it, had authority to order The Oregonian to return or destroy the documents because, as an intervenor, The Oregonian was a party to the case and was thus subject to the district court’s inherent case-management authority. The panel held that The Oregonian did not have a First Amendment right to withhold the documents because pretrial discovery proceedings are not public components of the judicial process, and a court can police access to information disclosed in discovery. Applying relaxed First Amendment scrutiny, the panel held that the district court’s exercise of its inherent authority over parties’ access to the fruits of discovery furthered a substantial government interest unrelated to the suppression of expression.

https://cdn.ca9.uscourts.gov/datastore/opinions/2025/03/18/24-2199.pdf

PHYLLIS W. CHENG, ESQ .

CALIFORNIA CASE LAW ALERT