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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Villalobos v. Maersk, Inc. (CA2/8 B333556 10/6/25) Arbitrability
“Under California law, it is presumed the judge will decide arbitrability, unless there is clear and unmistakable evidence the parties intended the arbitrator to decide arbitrability.” (Dennison v. Rosland Capital LLC (2020) 47 Cal.App.5th 204, 209.) This is a well-established principle of arbitration law, applied in both state and federal cases. (E.g., First Options of Chicago, Inc. v. Kaplan (1995) 514 U.S. 938, 944 (First Options) [“Courts should not assume that the parties agreed to arbitrate arbitrability unless there is ‘clea[r] and unmistakabl[e]’ evidence that they did so.”].)
Here we hold, in the context of a mandatory arbitration agreement between an employer and an hourly worker, that the incorporation of the rules of an arbitration provider – without expressly specifying in the parties’ agreement that under those rules the arbitrator will decide the scope and validity of the arbitration agreement – is not clear and unmistakable evidence of the parties’ intent to have those issues decided by the arbitrator. Absent unusual circumstances, an employer who intends to delegate issues of arbitrability to the arbitrator must express that intent in the arbitration agreement itself. Anything less is not clear and unmistakable evidence that both parties understood and intended that the arbitrator would decide arbitrability questions.
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We also find no error in the trial court’s ruling that plaintiff’s claim for waiting time penalties (Lab. Code, § 203) was not arbitrable to the extent it was based on his minimum wage claims. Nor was there error in the court’s conclusion that no part of plaintiff’s PAGA claim (Private Attorneys General Act, Lab. Code, § 2698 et seq.) was arbitrable.
Accordingly, we affirm the trial court’s ruling in its entirety.
https://www4.courts.ca.gov/opinions/documents/B333556.PDF
Curtis v. Inslee (9th Cir. 24-1869 10/6/25) COVID-19
The panel affirmed the district court’s dismissal for failure to state a claim of an action brought by former at-will employees of a nonprofit health care system (Employees) alleging various statutory, constitutional, and state law claims arising from then-Governor Jay Inslee’s August 2021 proclamation requiring healthcare workers in Washington to be vaccinated against COVID-19.
The panel first held that none of the Employees’ statutory and non-constitutional claims alleged specific and definite rights enforceable under 42 U.S.C. § 1983. The panel therefore rejected Employees’ claims based on 21 U.S.C. § 360bbb-3, 10 U.S.C. § 980, 42 U.S.C. § 247d-6, Article VII of the International Covenant on Civil and Political Rights, 45 C.F.R. Part 46, the Belmont Report, the Federal Wide Assurance Agreement, the COVID-19 Vaccination Program Provider Agreement, and Emergency Use Authorizations.
Addressing the Employees’ constitutional claims, the panel held that neither the Spending Clause nor the Supremacy Clause provided Employees with a federal right enforceable under § 1983. Employees’ claims under the Fourteenth Amendment Due Process Clause failed. The substantive due process claim alleging the right to refuse unwanted investigational drugs was foreclosed by Jacobson v. Massachusetts, 197 U.S. 11 (1905), and Health Freedom Def. Fund, Inc. v. Carvalho, 148 F.4th 1020 (9th Cir. 2025) (en banc). The procedural due process claim failed because, among other things, the Employees’ at-will employment was not a constitutionally protected property interest. Employees’ Equal Protection Clause claim, asserting a claim of discrimination against a non-suspect class, failed because the mandate here survived rational-basis review.
Because amendment of the federal claims would be futile, the panel held that the district court did not abuse its discretion in denying leave to amend the complaint. The panel affirmed the dismissal of the state law claims alleging breach of contract, employment tort, outrage, and invasion of privacy against the Governor. As for the state-law claims against PeaceHealth, the panel upheld the district court’s discretion to decline to exercise supplemental jurisdiction.
https://cdn.ca9.uscourts.gov/datastore/opinions/2025/10/06/24-1869.pdf
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Bills Signed and Vetoed by Governor (10/3/25)
Signed:​
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AB 248 by Assemblymember Isaac Bryan (D-Los Angeles) – County jails: wages
AB 323 by Assemblymember Mike Fong (D–Alhambra) – Strong Workforce Program: work-based learning opportunities
AB 378 by Assemblymember Avelino Valencia (D-Anaheim) – Education finance: Classified School Employee Summer Assistance Program
AB 1028 by Assemblymember Mike Fong (D–Alhambra) – Community colleges: temporary employees
AB 1125 by Assemblymember Stephanie Nguyen (D–Elk Grove) – Workers’ compensation: peace officers
AB 1155 by Assemblymember Mike Fong (D–Alhambra) – Law schools: externships: compensation
AB 1293 by Assemblymember Greg Wallis (R-Bermuda Dunes) – Workers’ compensation: qualified medical evaluators
​AB 1340 by Assemblymember Buffy Wicks (D-Oakland) – Transportation network company drivers: labor relations
AB 1514 by Committee on Labor and Employment – Worker classification: employees and independent contractors: licensed manicurists: commercial fishers
SB 272 by Senator Josh Becker (D‑Menlo Park) – San Mateo County Transit District: job order contracting: pilot program
SB 477 by Senator Catherine Blakespear (D-Encinitas) – California Fair Employment and Housing Act: enforcement procedures
Vetoed:​
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AB 374 by Assemblymember Stephanie Nguyen (D–Elk Grove) – K–14 classified employees: payment of wages: itemized statements. A veto message can be found here.
AB 393 by Assemblymember Damon Connolly (D-San Rafael) – Personal services contracts: state employees: physician and psychologist positions. A veto message can be found here
AB 833 by Assemblymember David Alvarez (D-San Diego) – Teachers: exchange programs: local educational agencies: sponsors. A veto message can be found here
AB 1309 by Assemblymember Heath Flora (R-Ripon) – State employees: compensation: firefighters. A veto message can be found here
AB 1329 by Assemblymember Liz Ortega (D-San Leandro) – Workers’ Compensation: Subsequent injuries payments. A veto message can be found here
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Caldrone v. Circle K Stores Inc. (9th Cir. 24-1432 10/3/25) Age Discrimination | ADEA
The panel reversed the district court’s grant of summary judgment in favor of Circle K Stores, Inc., and remanded, in an employment discrimination action brought under the Age Discrimination in Employment Act and the California Fair Employment and Housing Act.
Three plaintiffs alleged that Circle K illegally denied them the opportunity to apply for, and ultimately secure, a promotion to West Coast regional director because of their age. Applying the McDonnell Douglas three-step burden-shifting framework, the district court concluded that plaintiffs failed to establish a prima facie case giving rise to an inference of discrimination because they did not apply for the regional director position. The district court concluded, alternatively, that at step two of the McDonnell Douglas analysis, Circle K offered a legitimate, nondiscriminatory justification for its decision, and at step three, plaintiffs did not establish a triable issue whether the proffered reason was a pretext for discrimination.
To establish a prima facie case of age discrimination, plaintiffs must demonstrate that (1) they were at least 40 years old, (2) they were qualified for the position they sought, (3) they were denied the position, and (4) the promotion was given to a substantially younger person. The panel held that to establish the second component, plaintiffs are not required to demonstrate that they submitted an application when, as here, their employer declines to solicit applications and does not announce that a position is available. The panel also held that, although ten years is the presumptive threshold for a substantial age difference, a plaintiff can overcome that presumption by producing additional evidence to show that the employer considered his or her age to be significant.
Because all three plaintiffs therefore established a prima facie case, the panel proceeded to steps two and three of the McDonnell Douglas analysis. At step two, Circle K articulated a legitimate, nondiscriminatory reason for selecting another candidate to be West Coast regional director by asserting that he was the only person to express interest in the position, and his prior experience as the Southeast regional director made him uniquely suited for the role. At step three, however, plaintiffs presented enough evidence to create a triable issue on pretext, making summary judgment inappropriate.
https://cdn.ca9.uscourts.gov/datastore/opinions/2025/10/03/24-1432.pdf
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Bills Signed by Governor (10/1/25)
AB 406 by Assemblymember Pilar Schiavo (D-Baldwin Park) – Employment: unlawful discrimination: victims of violence
AB 1362 by Assemblymember Ash Kalra (D-San Jose) – Foreign labor contractor registration: agricultural workers
AB 1438 by Assemblymember James Gallagher (R-East Nicolaus) – School finance: administrative employee-to-teacher ratio: Paradise Unified School District
SB 303 by Senator Lola Smallwood-Cuevas (D-Los Angeles) – Employment: bias mitigation training: unlawful discrimination
SB 853 by the Committee on Labor, Public Employment and Retirement – Public employees’ retirement
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Wilson v. Tap Worldwide, LLC (CA2/1 B334533 mod. & cert. pub. 10/2/25) Untimely Payment of Arbitration Fees
We start with the epilogue. Until our high court decided Hohenshelt v. Superior Court (2025) 18 Cal.5th 310 (Hohenshelt), the issue before us was how to interpret an attorney fees provision in Code of Civil Procedure section 1281.98, which allows certain plaintiffs, previously ordered to arbitration, to return to court if the defendant does not pay the arbitration fees within the 30-day deadline in that statute. Prior to Hohenshelt, there was conflicting appellate authority as to whether that consequence applied even to innocent missed deadlines and if so, whether the Federal Arbitration Act (9 U.S.C. § 1 et seq.; FAA) would preempt section 1281.98. Hohenshelt resolved those issues, and as set forth in our Discussion, post, the impact of that decision now dominates our analysis, and leads us to the conclusion that plaintiff is not entitled to the award of attorney fees at issue in this appeal.
Returning to where this case started, in an employment arbitration between plaintiff Anthony Wilson, Jr. and defendant TAP Worldwide LLC, the arbitration provider received defendant’s payment of the arbitration fees three days after expiration of the 30-day deadline in section 1281.98. There was evidence defendant initiated an electronic payment on the last day of the 30-day period, a Friday, but the payment was not processed and the arbitration provider did not receive the payment until the following Monday.
Plaintiff filed a motion under section 1281.98 to vacate the order compelling arbitration and return the matter to court. The trial court granted the motion. It found defendant in material breach of the arbitration agreement because defendant failed to pay the arbitration fees within 30 days following invoice of those fees. In so finding, the trial court followed appellate decisions construing section 1281.98’s deadline strictly, regardless of whether defendant missed the deadline inadvertently. The court vacated the order compelling arbitration and imposed $1,750 in sanctions under section 1281.99, reflecting time expended by plaintiff’s counsel to prepare and litigate the motion under section 1281.98.
Plaintiff subsequently filed a motion for over $300,000 in attorney fees and costs pursuant to section 1281.98, subdivision (c)(1), which allows a plaintiff “to recover all attorney’s fees and all costs associated with the abandoned arbitration proceeding.” The trial court granted the motion but reduced the award to approximately $11,000. The court reasoned plaintiff was entitled only to fees and costs incurred for work that would have no utility once the case were returned to court.
Plaintiff then brought this appeal, arguing the trial court misinterpreted the fees provision of section 1281.98, subdivision (c)(1) and plaintiff should be awarded all fees and costs incurred in the arbitral forum, regardless of whether the work underlying those fees and costs would be useful in the court proceedings.
After appellate briefing was complete, our Supreme Court decided Hohenshelt. Hohenshelt held federal law would preempt section 1281.98 if the statute were interpreted to render arbitral rights forfeited even if the failure to pay arbitration fees within the statute’s 30-day deadline was inadvertent or otherwise excusable. To avoid preemption, the Hohenshelt court interpreted section 1281.98 to mandate forfeiture of arbitral rights only when nonpayment was willful, grossly negligent, or fraudulent.
We asked for supplemental briefing regarding the impact of Hohenshelt on this appeal. Here the trial court found defendant had forfeited its arbitral rights despite facts demonstrating defendant missed the 30-day deadline by three days merely because it believed authorizing withdrawal of the payment within the 30-day deadline was sufficient. Under Hohenshelt, the trial court’s strict interpretation of section 1281.98 is preempted. Given the trial court’s findings about how defendant missed the 30-day deadline, we conclude, as a matter of law, that defendant’s untimely payment was not willful, grossly negligent, or fraudulent. Accordingly, we reverse the award of attorney fees.
https://www4.courts.ca.gov/opinions/documents/B334533.PDF
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Levy v. City and County of S.F. (CA1/4 A172068 9/30/25) Meal & Rest Breaks for Public Sector Health Care Workers | Charter Cities
In 2022, the Legislature enacted Senate Bill No. 1334 (2021–2022 Reg. Sess.) (Senate Bill 1334), adding section 512.1 to the Labor Code. (Stats. 2022, ch. 845, § 2.) Section 512.1 extends the meal and rest breaks and premiums already enjoyed by private sector health care workers under section 512 to healthcare employees directly employed by specified public employers. (§ 512.1, subd. (a).) As used in section 512.1, “ ‘[e]mployer’ means the state, political subdivisions of the state, counties, municipalities, and the Regents of the University of California.” (§ 512.1, subd. (e)(2).)
Plaintiffs are nurses directly employed by the City and County of San Francisco (City), who, on behalf of a class of similarly situated City-employed nurses represented by the Service Employees International Union Local 1021 (the union), alleged that the City has failed to comply with section 512.1 since it took effect. The City demurred. It argued that the Legislature failed to provide a clear intention that the law applies to charter cities, like the City. In the alternative, the City argued that applying the law to charter cities would be unconstitutional.
The trial court sustained the demurrer. The court agreed with the City’s statutory interpretation and did not address the constitutional question. We affirm.
https://www4.courts.ca.gov/opinions/documents/A172068.PDF
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McDoniel v. Kavry Management (CA4/1 D084660 9/30/25) Labor Code section 432.2 | Refusing Polygraph Examination
This case involves an issue of first impression: Whether an employer’s violation of Labor Code section 432.2―governing in part the right of a private employee to refuse to submit to a polygraph, lie detector or similar test as a condition of continued employment―supports a claim for wrongful discharge in violation of public policy. In this case, the jury found defendant Kavry Management, LLC (Kavry) required plaintiff Steven McDoniel to take a polygraph examination, after Kavry experienced a theft of cash and marijuana from its licensed marijuana-growing facility where McDoniel worked, then fired him after the polygrapher determined he had “failed” the test. The jury awarded McDoniel $100,000 in noneconomic damages.
On appeal, Kavry maintains section 432.2 cannot support a claim for the tort of wrongful discharge because its violation does not implicate a fundamental policy that affects the public or a large class of persons. It instead claims McDoniel’s damages, if any, should be limited to his taking of the polygraph examination itself, without regard to any effect the results of that examination had on his employment status. Kavry also maintains the court erred in awarding McDoniel attorney fees of about $212,000 under section 432.6, claiming this statute applies to employment contracts entered into on or after January 1, 2020, which would exclude McDoniel because his employment at Kavry ended in September 2018.
In his cross-appeal, McDoniel contends that, to the extent the trial court improperly based the attorney fees award on section 432.6, it erred by not separately awarding him fees under the private attorney general fee statute (Code Civ. Proc., § 1021.5) or the Private Attorneys General Act of 2004 (Lab. Code, §§ 2698, 2699, subd. (k)(1); PAGA). He also contends the court erred when it initially added Kavry’s then owner and manager, Chris Shepard, to the judgment, then vacated that judgment on its own motion and entered a new judgment against only Kavry.
As we explain, we conclude that McDoniel stated a valid cause of action for wrongful discharge based on Kavry’s violation of section 432.2; and that as a result, the jury properly awarded him noneconomic damages of $100,000.
We further conclude (1) the trial court erred when it based its attorney fees award on section 432.6; (2) the court properly exercised its discretion when it denied McDoniel fees under the private attorney general fee statute; and (3) McDoniel forfeited on appeal his claim for an award of fees under PAGA.
Finally, on this record we decline to decide whether Shepard should be added to the judgment against Kavry, as McDoniel contends in his cross-appeal. McDoniel filed a motion to amend the judgment to include Shepard as the alter ego of Kavry about six months after entry of the judgment, and about a year after McDoniel filed his first cross-appeal in this case. (See footnote 3, item 3 post.) In addition, McDoniel further claims in his request for judicial notice (ibid.) that “judicial estoppel” precludes Shepard and Kavry from arguing that Shepard is not liable for the judgment, after McDoniel―postjudgment―unsuccessfully sought to intervene in an unrelated, third-party action brought by Shepard. Because this issue primarily involves events and contested factual matters arising postjudgment that have yet to be resolved by the trial court, we are unable to decide it in this proceeding.
https://www4.courts.ca.gov/opinions/documents/D084660.PDF
Alvarado v. Walmart Associates, Inc. (9th Cir. 23-3927 9/30/25) Individual Settlement of PAGA Claims | Attorney’s Fees
The panel vacated the district court’s order granting Claudia Alvarado $312,429 in attorneys’ fees and costs on her individual, putative class, and Private Attorneys General Act (“PAGA”) claims against Walmart for violations of California’s Labor Code, and remanded.
After an unsuccessful motion for class certification, Alvarado settled her individual claims under California Code of Civil Procedure section 998 for $22,000, and dismissed, without prejudice, her PAGA claims. The district court awarded Alvarado $297,799 in fees and $14,630 in costs. Walmart argued on appeal that the parties’ section 998 agreement, by its terms, allowed Alvarado to seek fees only for work performed exclusively on her individual claims.
The panel held that the parties’ section 998 agreement allowed Alvarado to seek fees under Hensley v. Eckhart, 461 U.S. 424 (1983), which allows a plaintiff who experiences limited success to recover fees for work performed on related items. However, the district court abused its discretion when it failed to provide a “concise but clear” explanation for its fee award. Accordingly, the panel vacated the fee award and remanded to the district court for further proceedings.
https://cdn.ca9.uscourts.gov/datastore/opinions/2025/09/30/23-3927.pdf
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Bills Signed by Governor (9/29-30/2025)
AB 288 by Assemblymember Tina McKinnor (D–Inglewood) – Employment: labor organization and unfair practices
SB 53 by Senator Scott Wiener (D-San Francisco) – Artificial intelligence models: large developers (Transparency in Frontier Artificial Intelligence Act (TFAIA))
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Detweiler v. Mid-Columbia Medical Center (9th Cir. 23-3710 9/23/25) Covid-19 Antigen Testing | Religious Belief
Affirming the district court’s dismissal, for failure to state a claim, of an employment discrimination action under Title VII and the parallel Oregon state statute, the panel held that the plaintiff failed sufficiently to plead a bona fide religious belief that conflicted with her employer’s policy implementing the Oregon Health Authority’s administrative rule requiring healthcare workers to be vaccinated against COVID-19, absent an approved exemption.
The employer approved the plaintiff’s request for a religious exemption from vaccination. As part of that accommodation, it required the plaintiff to wear personal protective equipment while in the office and to submit to weekly antigen testing for COVID-19. The plaintiff sought a further accommodation of exemption from the weekly antigen testing on the basis that because her research showed that the testing swab was carcinogenic, its use would conflict with her Christian belief in protecting her body as the temple of the Holy Spirit. The employer, however, denied the plaintiff’s requested accommodations of saliva testing or full-time remote work and later terminated her employment.
The panel held that for a claim of religious discrimination, the plaintiff must first plead a prima facie case of failure to accommodate her religion. If she meets her burden, then the employer must show that it was nonetheless justified in refusing to accommodate. A plaintiff can meet her prima facie burden by demonstrating that she had a bona fide religious belief, the practice of which conflicted with an employment duty; she informed her employer of the belief and conflict; and the employer threatened her with or subjected her to discriminatory treatment, including discharge, because of her inability to fulfill the job requirements. Where an employee seeks an accommodation, she must plead facts sufficient to show that the accommodation request also springs from a bona fide religious belief. Looking to First Amendment doctrine, the panel held that the district court does not examine the sincerity or the reasonableness of a belief. Instead, the court need only determine if a plaintiff has pled enough facts to plausibly show that her belief is religious, rather than purely secular.
The panel concluded that the plaintiff’s complaint did not sufficiently articulate a bona fide religious belief in conflict with her former employer’s testing requirement because her belief that the antigen testing swab was carcinogenic was personal and secular, premised on her interpretation of medical research. Disagreeing with other circuits, the panel declined to adopt a lenient approach allowing a complaint to survive with merely conclusory statements about the religious nature of a belief. The panel concluded that the plaintiff, by asserting a general religious principle and linking that principle to her personal, medical judgment via prayer alone, did not state a claim for religious accommodation.
Dissenting, Judge VanDyke wrote that the majority adopted a flawed mode of analysis purporting to distinguish a category of purely secular claims incidentally linked to a general religious principle from a category of truly religious claims. Judge VanDyke wrote that he would follow other circuits and assume as true the plaintiff’s allegation that she requested a religious exemption from the COVID-19 testing requirement, her employer rejected that request, and she was fired because she declined to be tested. As pled, her religious beliefs plainly constituted a fundamental element of her objection to antigen testing.
https://cdn.ca9.uscourts.gov/datastore/opinions/2025/09/23/23-3710.pdf
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Trump v. Slaughter (US 25A264 (25-332) order stay granted 9/22/25) FTC Commissioner’s Removal
The application for stay presented to THE CHIEF JUSTICE and by him referred to the Court is granted. The July 17, 2025 order of the United States District Court for the District of Columbia, No. 25–cv–909, ECF Doc. 52, is stayed. The application is also treated as a petition for a writ of certiorari before judgment, and the petition is granted. The parties are directed to brief and argue the following questions: (1) Whether the statutory removal protections for members of the Federal Trade Commission violate the separation of powers and, if so, whether Humphrey’s Executor v. United States, 295 U.S. 602 (1935), should be overruled. (2) Whether a federal court may prevent a person’s removal from public office, either through relief at equity or at law. The Clerk is directed to establish a briefing schedule that will allow the case to be argued in the December 2025 argument session. The stay shall terminate upon the sending down of the judgment of this Court.
JUSTICE KAGAN, with whom JUSTICE SOTOMAYOR and JUSTICE JACKSON join, dissenting from the grant of the application for stay.
https://www.supremecourt.gov/opinions/24pdf/25a264_o759.pdf
CRST Expedited, Inc. v. Super. Ct., 112 Cal.App.5th 872 (2025), review granted & depub. den., 2025 WL 2671496 (Sept. 17, 2025); S292005/ F088569 Headless PAGA Action
Petition for review after denial of writ of mandate and discharge of order to show cause and stay. 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. Submission of additional briefing, pursuant to California Rules of Court, rule 8.520, is deferred pending further order of the court. Review granted/holding for lead case.
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American Federation of Government Employees v. Trump (9th Cir. 25-3293 and 25-4476 Order 9/19/25) Federal Worker Layoffs | Discovery
On July 21, 2025, the government parties, defendants in the district court,petitioned for a writ of mandamus that would require the district court to vacate a discovery order requiring in camera production of certain agency documents. Trump v. United States District Court for the Northern District of California, No. 25-4476. On August 5, 2025, American Federation of Government Employees, AFL–CIO et al., plaintiffs in the district court and appellees in this court, moved for remand of the government parties’ pending appeal of the district court’s preliminary injunction. American Federation of Government Employees v. Trump, No. 25-3293.
We deny the petition for mandamus, and we vacate the district court’s preliminary injunction and remand to the district court.
https://cdn.ca9.uscourts.gov/datastore/opinions/2025/09/19/25-3293.pdf
Trump v. United States District Court for the Northern District of California (9th Circuit 25-3293 and 25-4476 Order 9/19/25) Federal Worker Layoffs | Discovery
On July 21, 2025, the government parties, defendants in the district court, petitioned for a writ of mandamus that would require the district court to vacate a discovery order requiring in camera production of certain agency documents. Trump v. United States District Court for the Northern District of California, No. 25-4476. On August 5, 2025, American Federation of Government Employees, AFL–CIO et al., plaintiffs in the district court and appellees in this court, moved for remand of the government parties’ pending appeal of the district court’s preliminary injunction. American Federation of Government Employees v. Trump, No. 25-3293.
We deny the petition for mandamus, and we vacate the district court’s preliminary injunction and remand to the district court.
https://cdn.ca9.uscourts.gov/datastore/opinions/2025/09/19/25-4476.pdf
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Bronshteyn v. Dept. of Consumer Affairs (CA2/8 B329890 9/17/25) FEHA | Attorneys’ Fees
When the plaintiff files a case with the prospect of recovering attorney fees, the defense is fully entitled to fight hard. But the defense does so knowing it might end up paying for all the work for both sides. Filing a flood of unselective and fruitless motions can be counterproductive if the plaintiff ultimately prevails, for the bill for that flood will wash up on the defense doorstep. Then the court may look with a wary eye at defense complaints about a whopping plaintiff’s bill.
We recently affirmed a judgment in favor of Diana Bronshteyn against her former employer the California Department of Consumer Affairs. (See Bronshteyn v. Dept. of Consumer Affairs (May 12, 2025, B325678) [nonpub. opn.] (Bronshteyn I).)
In this second appeal, the Department argues the trial court abused its discretion in awarding $4,889,786.03 in attorney fees to Bronshteyn’s counsel. As the trial court aptly observed: “[t]he fact that [the Department] did not settle the case early might or might not be good litigation strategy or bad litigation strategy . . . But the biggest thing it does is it makes it hard for [the Department] to claim that [Bronshteyn] shouldn’t have spent money litigating to try the case, which is reflected in the number of hours that [counsel] billed.”
We affirm the trial court’s careful and well-reasoned ruling. Statutory citations refer to the Government Code.
https://www4.courts.ca.gov/opinions/documents/B329890.PDF
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Noland v. Land of the Free, L.P. (CA2/3 B331918 9/12/25) Employment | Fabricated Legal Authority
This appeal is, in most respects, unremarkable. Plaintiff filed a complaint alleging a variety of employment-related claims, and the trial court granted defendants’ motion for summary judgment, finding no triable issues as to any of those claims. Plaintiff challenges the grant of summary judgment on several grounds, none of which raises any novel questions of law or requires us to apply settled law in a unique factual context. In short, this is in most respects a straightforward appeal that, under normal circumstances, would not warrant publication.
What sets this appeal apart—and the reason we have elected to publish this opinion—is that nearly all of the legal quotations in plaintiff’s opening brief, and many of the quotations in plaintiff’s reply brief, are fabricated. That is, the quotes plaintiff attributes to published cases do not appear in those cases or anywhere else. Further, many of the cases plaintiff cites do not discuss the topics for which they are cited, and a few of the cases do not exist at all. These fabricated legal authorities were created by generative artificial intelligence (AI) tools that plaintiff’s counsel used to draft his appellate briefs. The AI tools created fake legal authority—sometimes referred to as AI “hallucinations”—that were undetected by plaintiff’s counsel because he did not read the cases the AI tools cited.
Although the generation of fake legal authority by AI sources has been widely commented on by federal and out-of-state courts and reported by many media sources, no California court has addressed this issue. We therefore publish this opinion as a warning. Simply stated, no brief, pleading, motion, or any other paper filed in any court should contain any citations—whether provided by generative AI or any other source—that the attorney responsible for submitting the pleading has not personally read and verified. Because plaintiff’s counsel’s conduct in this case violated a basic duty counsel owed to his client and the court, we impose a monetary sanction on counsel, direct him to serve a copy of this opinion on his client, and direct the clerk of the court to serve a copy of this opinion on the State Bar.
https://www4.courts.ca.gov/opinions/documents/B331918.PDF
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Kruitbosch v. Bakersfield Recovery Services, Inc. (CA5 F087809 partial pub. 9/8/25) Sexual Harassment Outside Workplace
A coworker (Lisa Sanders) at plaintiff Steven Kruitbosch’s job allegedly subjected him to crude sexual advances at his home and via his personal cell phone away from the premises of his employer, respondent Bakersfield Recovery Service, Inc. (BRS). When plaintiff reported the conduct to BRS’s acting program director and a human resources (HR) representative, he was told there was nothing that could be done, ostensibly because it occurred off property. The HR representative made a social media post plaintiff understood to be mocking him, and she made a sarcastic comment to him about the harassment. Although plaintiff made efforts to avoid Sanders in the office, his distress at the prospect of interacting with her coupled with BRS’s failure to protect him in the workplace and mocking him for his complaint detracted from his work duties and made continuing his employment feel impossible. Plaintiff resigned a week later. Plaintiff filed suit alleging several claims, including for harassment, discrimination and retaliation in violation of the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.). The trial court dismissed plaintiff’s second amended complaint with prejudice and without leave to amend. We reverse in part and affirm in part.
For reasons we will explain, although Sanders’s alleged conduct was reprehensible, it was not sufficiently work related within the ambit of FEHA, and it did not recur inside the workplace. Her underlying conduct is not imputable to BRS, and the claim is not cognizable on that basis. Nevertheless, the sexual harassment hostile work environment claim is viable based on a theory that BRS’s response to plaintiff’s complaint about Sanders’s conduct altered plaintiff’s work environment in an objectively severe manner. Plaintiff’s claim for failure to prevent harassment, discrimination or retaliation under section 12940, subdivision (k) (§ 12940(k)) is dependent upon a viable claim for harassment, discrimination or retaliation; because plaintiff’s underlying claim for sexual harassment is viable, plaintiff’s section 12940(k) claim is also cognizable. With respect to these claims, we reverse the trial court’s ruling sustaining BRS’s demurrer.
As for the remaining claims, plaintiff did not sufficiently allege constructive termination or any other adverse employment actions necessary to support his claims for discrimination, retaliation, and constructive discharge in violation of public policy. Finally, plaintiff’s claim for negligent hiring, supervision or retention does not sufficiently allege BRS’s knowledge of the unfitness of its employees. With respect to these claims, we affirm the trial court’s ruling.
https://www4.courts.ca.gov/opinions/documents/F087809.PDF
Trump v. Slaughter (US Order 25A264 9/8/25) Firing of FTC Commissioners
UPON CONSIDERATION of the application of counsel for the applicants, IT IS ORDERED that the July 17, 2025 order of the United States District Court for the District of Columbia, case No. 1:25-cv-909, is 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 Monday, September 15th, 2025, by 4 p.m. (EDT).
https://www.supremecourt.gov/orders/courtorders/090825zr_4f15.pdf
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Trader Joe’s Company v. Trader Joes United (9th Cir. 24-720, 2826 9/8/25) Lanham Act | Norris-LaGuardia Act
The panel reversed the district court’s dismissal of an action brought under the Lanham Act by Trader Joe’s Co. against Trader Joe’s United, a labor union; vacated the district court’s order awarding attorneys’ fees; and remanded for further proceedings.
Trader Joe’s alleged that the union sold products that infringed on Trader Joe’s federal registered trademarks because they were likely to cause consumer confusion and dilute the trademarks. The district court disagreed and granted the union’s motion to dismiss the complaint with prejudice for failure to state a claim.
Reversing the dismissal of the trademark infringement claim, panel held that, viewing the allegations in the light most favorable to Trader Joe’s, the district court erred when applying the fact-specific likelihood-of-confusion test articulated in AMF Inc. v. Sleekcraft Boats, 599 F.2d 341 (9th Cir. 1979). The panel concluded that the strength of the marks, the relatedness of the parties’ goods, and the similarity of the marks weighed in favor of Trader Joe’s, and the other five Sleekcraft factors were neutral. Accordingly, this was not one of the rare trademark infringement cases in which there was no plausible likelihood that a reasonably prudent consumer would be confused about the origin of the goods allegedly bearing the Trader Joe’s distinctive marks.
The panel held that the district court erred in dismissing Trader Joe’s trademark dilution claim under the nominative fair use doctrine without providing Trader Joe’s an opportunity to respond or applying the requisite three-factor test.
The panel also held that the district court prematurely concluded that the Norris-LaGuardia Act barred it from granting injunctive relief in this matter without further development of the record or the parties’ positions. The Act prohibits courts from issuing injunctions in any case “involving or growing out of a labor dispute,” but it was not clear whether the trademark infringement claims and the nature of the injunctive relief sought by Trader Joe’s related to or grew out of the parties’ labor dispute.
https://cdn.ca9.uscourts.gov/datastore/opinions/2025/09/08/24-720.pdf
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Baker v. San Mateo County Employees Retirement Assn. (CA1/1 A171350 9/5/25) County Employees Retirement Law | Disability Retirement
Petitioner Catherine Baker worked for San Mateo County, went on medical leave in 2009, and then returned to a different position in 2015 and 2016 at the same pay rate before filing for disability retirement. Respondent San Mateo County Employees Retirement Association (SamCERA) determined the effective date of her retirement benefits to be in 2016, on the last day she received “regular compensation” pursuant to Government Code section 31724. 1 Baker petitioned for a writ of mandate, asserting that the pay she received in 2015 and 2016 was not “regular compensation” under the statute because she had not returned to her original job position. The trial court concluded otherwise, and denied the writ.
On appeal, Baker argues that the trial court erred in its interpretation of the term “regular compensation” in section 31724. We disagree and affirm.
https://www4.courts.ca.gov/opinions/documents/A171350.PDF
Sterling v. Feek (9th Cir. 24-1296 9/4/25) Pandemic Emergency Unemployment Compensation Benefits
In an interlocutory appeal, the panel reversed the district court’s determination that plaintiff had no constitutionally protected property interest in federal Pandemic Emergency Unemployment Compensation (PEUC) benefits, and remanded.
Damario Sterling filed a putative class action under 42 U.S.C. § 1983 against the current and former commissioner of the Washington State Employment Security Department (ESD), alleging that he was deprived of unemployment benefits without adequate notice or an opportunity to be heard.
The panel first held that Sterling’s claims are justiciable. He has standing to seek damages because he was injured when ESD offset his benefits to account for alleged overpayments, and that injury was caused by ESD’s challenged conduct. He has standing to seek prospective injunctive relief because he has a procedural right to due process under the Fourteenth Amendment and the Social Security Act, and he could reasonably be expected to seek unemployment benefits again in the future. His claims for prospective relief were not mooted by the end of the PEUC program because he challenges the procedures ESD generally uses to administer unemployment benefits, not any procedures specific to PEUC benefits.
The panel held that Sterling has a property interest in the PEUC benefits that ESD withheld as offsets. The CARES Act, which established a supplemental program to extend unemployment benefits during the COVID-19 pandemic, gives rise to a constitutionally-protected property interest. The Act uses mandatory language and establishes definite eligibility criteria that greatly narrow the discretion of participating states and create legitimate expectations of aid receipt.
The panel declined to reach defendants’ due process argument, which was not certified for interlocutory review.
https://cdn.ca9.uscourts.gov/datastore/opinions/2025/09/04/24-1296.pdf
Asuncion v. Hegseth (9th Cir. 23-4044 9/4/25) Rehabilitation Act of 1973
The panel reversed the district court’s judgment in favor of the Secretary of Defense in an action alleging employment discrimination on the basis of disability in violation of the Rehabilitation Act of 1973.
The district court concluded that plaintiff’s claims were time-barred because they were not filed within 90 days of receipt of the Defense Logistics Agency’s Office of Equal Opportunity and Diversity’s final agency decision (FAD), and equitable tolling was not warranted.
Claims brought under the Rehabilitation Act are governed by the same remedies, procedures, and rights applicable to Title VII employment discrimination claims brought by federal employees against federal defendants. Under Title VII, a federal employee’s civil action must be brought within 90 days of receipt of notice of the final agency action. The 90-day period functions as a statute of limitations. The panel held that for notices transmitted via traditional mail services, the case law on Title VII statutes of limitations is clear, but electronically transmitted notices present new complications.
The panel held that the 90-day limitation period did not begin until plaintiff’s attorney could realistically be held responsible for having access to the FAD and learning what the agency had decided. Here, the agency made numerous errors when transmitting the passphrase necessary to decrypt the FAD. The panel held that under the circumstances, plaintiff’s attorney did not have effective notice of the agency’s decision until December 5, the day he received by email a decrypted copy of the FAD. Because plaintiff’s attorney filed suit in the district court within 90 days of receiving the accessible FAD, the complaint was timely.
Alternatively, the panel held that plaintiff was entitled to equitable tolling because plaintiff’s attorney was diligent in trying to gain access to the agency’s decision and extraordinary circumstances prevented him from succeeding. Applying equitable tolling, the panel held that plaintiff’s statute of limitations period did not begin to run until he received the decrypted copy of the FAD on December 5. Because he filed his complaint 88 days later, the complaint was timely filed.
https://cdn.ca9.uscourts.gov/datastore/opinions/2025/09/04/23-4044.pdf
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Peterson v. SRFR (9th Cir. 24-1044 9/2/25) Title VII | Covid-19 Vaccine Exemption for Religion
The panel affirmed the district court’s summary judgment in favor of Snohomish Regional Fire and Rescue (SRFR) in an action brought by eight firefighters alleging that, in violation of Title VII and Washington state law, SRFR failed to accommodate their religious beliefs when it denied their requests for exemptions from the governor of Washington’s August 2021 proclamation requiring all healthcare providers to be vaccinated against COVID-19.
SRFR ultimately denied the firefighters’ requests because it was unable to identify a reasonable accommodation that would allow the firefighters to remain in their roles without imposing an undue hardship on SRFR.
The panel held that to establish a failure-to-accommodate claim for religious discrimination under Title VII, a plaintiff must first set forth a prima facie case that he had a bona fide religious belief, the practice of which conflicted with an employment duty; he informed his employer of the belief and conflict; and the employer discharged, threatened, or otherwise subjected him to an adverse employment action because of his inability to fulfill the job requirement. The burden then shifts to the employer to show that it initiated good faith efforts to reasonably accommodate the employee’s religious practices or that it could not reasonably accommodate the employee without undue hardship.
Declining to scrutinize the firefighters’ religious beliefs, the panel assumed that they set forth a prima facie case. The panel held that the district court did not err in concluding that SRFR could not reasonably accommodate the firefighters’ vaccine exemption requests without undue hardship. Following Groff v. DeJoy, 600 U.S. 447 (2023), the panel held that undue hardship is shown when, taking into account all relevant factors in the case at hand, a burden is substantial in the overall context of an employer’s business. SRFR showed that it faced several substantial costs of accommodating the firefighters’ requested vaccine exemption, including the health and safety of its own firefighters and the public, the large number of firefighters seeking accommodations, the risk to its operations and the costs of widespread absences, the potential loss of a lucrative contract, and the risk of additional liability. In addition, SRFR provided unrebutted medical evidence that showed the inadequacy of the firefighters’ proposed accommodation. The panel concluded that SRFR thus showed that it could not reasonably have accommodated the firefighters without undue hardship in October 2021.
https://cdn.ca9.uscourts.gov/datastore/opinions/2025/09/02/24-1044.pdf
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Cash v. County of Los Angeles, 111 Cal. App. 5th 741 (2025), review granted, 2025 WL 2414150 (Mem) (Aug. 20, 2025); S291827/B336980 FEHA | Attorneys’ Fees
Review granted after affirmance of post-judgment orders. (1) Did the trial court’s across-the-board reduction of the fees requested by plaintiff’s counsel trigger heightened scrutiny of its fee order on appeal? (2) Did the trial court commit reversible error in reducing the fee request on an across-the-board basis? Review granted/brief due.
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Flaxman v. Ferguson (9th Cir. 24-919 8/22/25) First Amendment | Ripeness
The panel reversed the district court’s judgment dismissing as unripe a lawsuit brought by two University of Washington professors challenging the investigatory policies of the Washington State Executive Ethics Board after the Board investigated the professors for misusing their state email addresses.
The Board investigated the professors after they forwarded to a faculty listserv several emails that allegedly contained political discussion and fundraising requests. In conducting the investigations, the Board reviewed several months’ worth of the professors’ emails. The Board ultimately did not discipline one professor, but it fined the other professor. In their lawsuit, the professors, on behalf of themselves and a putative class of listserv subscribers, alleged that the Board’s policies and practices chilled the exercise of their First Amendment rights.
The panel held that the district court erred in dismissing the professors’ lawsuit as unripe under Article III. The professors’ allegations that the Board’s policies will chill their speech are ripe under a pre-enforcement challenge framework because the professors remain affiliated with the University, they are the moderators of the listserv, the Board’s policies are alleged to remain in place, and the Board’s history of enforcement demonstrates a plausible and reasonable fear of prosecution. To the extent the professors also advanced a retaliation theory based on past events, their claim is ripe because the professors have already been injured under a regime that has penalized them for their speech to the listserv.
The panel further held that the district court erred by concluding that the professors’ claims were prudentially unripe. The professors’ claims are fit for judicial decision because the issues are primarily legal, involving the Board’s investigatory policies that have already been applied to the professors. Moreover, withholding review would impose a substantial hardship on the professors.
Because the professors’ claims are ripe, the panel reversed the district court’s dismissal of their complaint and remanded for further proceedings.
Judge Bennett dissented because in his view the professors’ complaint failed to plead an injury in fact that confers standing under either a pre- or post-enforcement framework. However, because facts on the ground material to the prudential ripeness analysis changed during the pendency of this appeal, he would remand to allow the professors to amend their complaint.
https://cdn.ca9.uscourts.gov/datastore/opinions/2025/08/22/24-919.pdf
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Iloff v. LaPaille (SC S275848 per curiam 8/21/25) Minimum Wage and Paid Sick Leave | Good Faith Defense to Liquidated Damages
This case addresses two issues concerning the rights of California workers whose employers fail to pay them the minimum wage or provide them paid sick leave benefits. The first issue relates to the good faith defense to the default rule that employees who prove minimum wage violations are entitled to liquidated damages. (Labor Code, § 1194.2.) We hold that to establish the good faith defense, an employer must show that it made a reasonable attempt to determine the requirements of the law governing minimum wages; proof that the employer was ignorant of the law is insufficient. The second issue relates to the process for raising claims under the Healthy Workplaces, Healthy Families Act of 2014 (§ 245 et seq.; the “Paid Sick Leave law”). Specifically, we must determine whether a court may consider a Paid Sick Leave law claim that an employee raises in the context of their employer’s appeal to the superior court of a Labor Commissioner ruling. (§ 98.2, subd. (a).) We hold that a court may do so. The Court of Appeal reached the opposite conclusion on both issues, so we reverse.
https://www4.courts.ca.gov/opinions/documents/S275848.PDF
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Youth 71Five Ministries v. Williams (9th Cir. 24-4101 8/18/25) First Amendment Free Exercise of Religion | Grantee’s Hiring
In a suit brought by Youth 71Five Ministries alleging that the Oregon Department of Education, through its Youth Development Division, violated 71Five’s First Amendment rights when the Division withdrew its conditional award of a grant to 71Five, the panel affirmed in part and reversed in part the district court’s denial of 71Five’s request for a preliminary injunction and its dismissal of 71Five’s claims based on qualified immunity.
The Division added a new grant eligibility Rule that prohibits grantees from discriminating based on religion, and withdrew 71Five’s conditional grant award after discovering that 71Five imposes religious requirements on all employees and volunteers.
The panel affirmed the district court’s decision not to enjoin the Division’s enforcement of the Rule as to 71Five’s grant-funded initiatives. 71Five was unlikely to succeed on the merits of its claim that the Rule violates the First Amendment right to the free exercise of religion because the Rule is neutral and generally applicable, and likely satisfies rational-basis review. Nor was 71Five likely to succeed on the merits of its novel religious autonomy claims that conditioning grant funding on compliance with the Rule impermissibly interferes with its choice of ministers and faith-based hiring of non-ministers.
Addressing 71Five’s claim that the Rule abridges its expressive association by requiring it to accept employees and volunteers who disagree with its message, the panel held that the Rule was likely permissible as a reasonable and viewpoint-neutral regulation as to Division-funded initiatives. But to the extent that Rule restricts 71Five’s selection of speakers to spread its Christian message through initiatives that receive no Division funding, the Rule likely imposes an unconstitutional condition. Accordingly, the panel directed the district court to enter an order enjoining enforcement of the Rule as to initiatives that do not receive grant funding from the Division.
The panel affirmed the district court’s dismissal of 71Five’s claims for damages because 71Five did not allege any violation of a clearly established right, and therefore defendants were entitled to qualified immunity. However, the panel reversed the district court’s dismissal of 71Five’s claims for declaratory and injunctive relief, against which qualified immunity does not protect.
Judge Rawlinson concurred in the judgment only because of this court’s truncated review of a district court’s decision granting or denying injunctive relief, and obligatory deference to a district court’s discretionary decision to decline consideration of the arguments and evidence presented in a Reply Brief. Otherwise, she would conclude that the State of Oregon’s application of the rules governing its grant program violated 71Five’s right to the free exercise of religion.
https://cdn.ca9.uscourts.gov/datastore/opinions/2025/08/18/24-4101.pdf
Spatz v. Regents of the Univ. of California (9th Cir. 24-2997 8/18/25) Age Discrimination
Affirming the district court’s grant of summary judgment for the Regents of the University of California on Jordan Spatz’s claims under the Age Discrimination Act of 1975, the panel held that the Age Act did not apply to the University of California San Francisco’s refusal to admit Spatz to its neurological surgery residency program.
Spatz alleged that he was denied admission to the medical residency program due to age-based discrimination and retaliation. By its terms, the Age Act exempts from its coverage “any employment practice of any employer.” Giving the terms “employer” and “employment practice” their ordinary common-law meaning, the panel concluded that ranking medical residents is an employment practice to which the Age Act does not apply. To the extent that Spatz’s Age Act claim is not barred, Spatz failed to demonstrate a genuine issue of material fact.
https://cdn.ca9.uscourts.gov/datastore/opinions/2025/08/18/24-2997.pdf
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Renteria-Hinojosa v. Sunsweet Growers, Inc. (9th Cir. 23-3379, 23-4335 8/14/25) Section 301 Labor Management Relations Act | Removal and Remand
The panel affirmed the district court’s orders remanding two removed actions to state court after concluding that Annamarie Renteria-Hinojosa’s remaining state law claims against her employer, Sunsweet Growers, Inc., were not preempted by § 301 of the Labor Management Relations Act.
The panel held that it had jurisdiction to review the remand orders because, under 28 U.S.C. § 1447(c), the bar on appellate review of remand orders set forth in § 1447(d) applies only to remands based on a defect in removal procedure or lack of subject matter jurisdiction. The parties correctly agreed that the district court’s remand was not based on a defect in removal procedure. The panel concluded that the remand also was not based on a lack of subject matter jurisdiction because, after dismissing federal § 301 untimely-wage claims for failure to exhaust grievance procedures under a collective bargaining agreement, the district court, in its discretion, declined supplemental jurisdiction over the remaining state law claims. The panel held that the exhaustion requirement for § 301 claims is not jurisdictional. In addition, where the district court exercised its discretion to decline supplemental jurisdiction, its remand order was not based on a lack of subject matter jurisdiction. The panel therefore had jurisdiction to review the remand orders in their entirety, including the district court’s conclusions that Renteria-Hinojosa’s remaining state law claims were not federal § 301 claims.
The panel affirmed the district court’s conclusion that the remaining claims were not preempted by § 301, which preempts a plaintiff’s state law claim where the claim (1) arises entirely from a collective bargaining agreement or (2) requires interpretation of the agreement. At step one, Renteria-Hinojosa’s claims did not arise exclusively from the parties’ collective bargaining agreements, but rather from California statutes and regulations prohibiting unfair business practices and retaliation and requiring employers to provide minimum wages, overtime pay, paid sick days, accurate itemized wage statements, reimbursement for necessary expenditures, meal and rest periods, and adequate seating. At step two, Renteria-Hinojosa’s claims for overtime pay, sick leave pay, and meal and rest breaks were not preempted because they did not require interpretation of the collective bargaining agreements. Sunsweet’s argument that all of Renteria-Hinojosa’s claims were preempted because of the dispute resolution provisions in the collective bargaining agreements was precluded by Caterpillar, Inc. v. Williams, 482 U.S. 386 (1987), which holds that a defendant cannot create removal jurisdiction under § 301 by invoking a collective bargaining agreement as a defense. The panel concluded that Renteria-Hinojosa’s claims under California’s Private Attorneys General Act were not preempted.
The panel held that the district court did not abuse its discretion in deciding to remand the remaining state law claims to state court, instead of exercising supplemental jurisdiction over these claims.
https://cdn.ca9.uscourts.gov/datastore/opinions/2025/08/14/23-3379.pdf