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Douglas v. Xerox Business Services (9th Cir. 16-35425 11/15/17) Fair Labor Standards Act

The panel affirmed the district court’s summary judgment in favor of the defendants in an action brought by call center workers under the Fair Labor Standards Act.

Joining other circuits, the panel held that the relevant unit for determining minimum-wage compliance under the FLSA is the workweek as a whole, rather than each individual hour within the workweek. Under the workweek standard, defendants complied with the minimum-wage provision.

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/11/15/16-35425.pdf

Whitehall v. County of San Bernardino (CA4/2 E065672 11/15/17) Whistleblower Retaliation/Anti-SLAPP

Plaintiff, Mary Anna Whitehall, was a social worker for the San Bernardino County Children and Family Services (CFS or the County) who sought legal advice pertaining to any liability she might have for submitting misleading information and doctored photographs to the juvenile court at the direction of her superiors. Her counsel prepared a filing for the juvenile court to apprise it of the falsified information, and plaintiff was immediately placed on administrative leave for disclosing confidential information to an unauthorized person. Upon being informed she would be terminated for the breach, plaintiff resigned her position and filed a whistle blower action against the County. The County filed a special motion to strike the complaint as an Anti-SLAPP action, pursuant to Code of Civil Procedure, section 425.16, which was denied by the trial court. The County appealed.

On appeal, the County asserts that the trial court erred in determining that plaintiff had established the second prong of the criteria to overcome a special motion to strike an Anti-SLAPP lawsuit by finding a likelihood she would prevail because the County’s actions were not privileged or covered by governmental immunity. We affirm.

http://www.courts.ca.gov/opinions/documents/E065672.PDF

Williams v. Superior Court (CA2/1 B259967A dec. on rem. from SC 11/15/17) PAGA/Discovery

In these proceedings, plaintiff Michael Williams petitions for a writ of mandate compelling the superior court to vacate its limited discovery order entered September 9, 2014, and enter a new order granting the motion and ordering real party in interest to produce a list of the names and contact information of its non-exempt California employees employed since March 22, 2012. The case is before us on remand from the California Supreme Court following reversal of our previous decision denying the petition. (Williams v. Superior Court (2017) 3 Cal.5th 531.)

Pursuant to the Supreme Court’s direction, we vacate our earlier decision and grant the petition.

Decision on Remand

Supreme Court Decision

Hamer v. Neighborhood Housing Servs. Of Chicago (US 16–658 11/8/17) Jurisdiction/Notice of Appeal Time Extension

An appeal filing deadline prescribed by statute is considered “jurisdictional,” meaning that late filing of the appeal notice necessitates dismissal of the appeal. See Bowles v. Russell, 551 U. S. 205, 210–213. In contrast, a time limit prescribed only in a court-made rule is not jurisdictional. It is a mandatory claim-processing rule that may be waived or forfeited. Ibid. This Court and other forums have sometimes overlooked this critical distinction. See Reed Elsevier, Inc. v. Muchnick, 559 U. S. 154, 161.

Petitioner Charmaine Hamer filed an employment discrimination suit against respondents. The District Court granted respondents’ motion for summary judgment, entering final judgment on September 14, 2015. Before October 14, the date Hamer’s notice of appeal was due, her attorneys filed a motion to withdraw as counsel and a motion for an extension of the appeal filing deadline to give Hamer time to secure new counsel. The District Court granted both motions, extending the deadline to December 14, a two-month extension, even though the governing Federal Rule of Appellate Procedure, Rule 4(a)(5)(C), confines such extensions to 30 days. Concluding that Rule 4(a)(5)(C)’s time prescription is jurisdictional, the Court of Appeals dismissed Hamer’s appeal.

Held: The Court of Appeals erred in treating as jurisdictional Rule 4(a)(5)(C)’s limitation on extensions of time to file a notice of appeal. Pp. 5–10.

(a) The 1948 version of 28 U. S. C. §2107 allowed extensions of time to file a notice of appeal, not exceeding 30 days, “upon a showing of excusable neglect based on failure of a party to learn of the entry of the judgment,” but the statute said nothing about extensions when the judgment loser did receive notice of the entry of judgment. In 1991, the statute was amended, broadening the class of prospective appellants who could gain extensions to include all who showed “excusable neglect or good cause” and reducing the time prescription for appellants who lacked notice of the entry of judgment from 30 to 14 days. §2107(c). For other cases, the statute does not say how long an extension may run. Rule 4(a)(5)(C), however, does prescribe a limit: “No extension [of time for filing a notice of appeal] may exceed 30 days after the prescribed time [for filing a notice of appeal] or 14 days after the date [of] the order granting the [extension] motion . . . , whichever is later.” Pp. 5–6.

(b) This Court’s precedent shapes a rule of decision that is both clear and easy to apply: If a time prescription governing the transfer of adjudicatory authority from one Article III court to another appears in a statute, the limitation is jurisdictional; otherwise, the time specification fits within the claim-processing category. In concluding otherwise, the Court of Appeals relied on Bowles. There, Bowles filed a notice of appeal outside a limitation set by Congress in §2107(c). This Court held that, as a result, the Court of Appeals lacked jurisdiction over his tardy appeal. 551 U. S., at 213. In conflating Rule 4(a)(5)(C) with §2107(c) here, the Seventh Circuit failed to grasp the distinction between jurisdictional appeal filing deadlines and deadlines stated only in mandatory claim-processing rules. It therefore misapplied Bowles. Bowles’s statement that “the taking of an appeal within the prescribed time is ‘mandatory and jurisdictional,’” id., at 209, is a characterization left over from days when the Court was “less than meticulous” in using the term “jurisdictional,” Kontrick v. Ryan, 540 U. S. 443, 454. The statement was correct in Bowles, where the time prescription was imposed by Congress, but it would be incorrect here, where only Rule 4(a)(5)(C) limits the length of the extension. Pp. 7–10.

835 F. 3d 761, vacated and remanded.

GINSBURG, J., delivered the opinion for a unanimous Court.

https://www.supremecourt.gov/opinions/17pdf/16-658_p86b.pdf

Diaz v. Professional Community Management, Inc. (CA4/3 G053909, filed 10/17/17, pub. ord. 11/8/17) Arbitration/Sharp Practices

A “sharp practice” is defined as a “dealing in which advantage is taken or sought unscrupulously.” (Webster’s 3d New Internat. Dict. (2002) p. 2088.) This is an appeal borne of sharp practices.

Defendant Professional Community Management, Inc. (PCM), unilaterally orchestrated the issuance of an appealable order by: (1) applying ex parte, a mere 11 days before trial, for an order shortening time to hear its motion to compel arbitration; (2) voluntarily submitting a proposed order to the trial court that not only reflected the court’s denial of the ex parte application — the only ruling reflected in the trial court’s own minute order — but also included a denial of the motion on the merits; and (3) promptly appealing from that order, which then stayed the scheduled trial.

We conclude PCM engaged in this course of conduct because, as respondent Francisco Diaz argued below, it anticipated the court would deny its motion to compel arbitration in any event, and it sought to obtain an appealable ruling issued before the trial commenced. PCM could then spin that ruling into a vehicle for seeking pretrial appellate review of the analysis underlying the court’s order denying its related motion for summary judgment. Thus, PCM carefully tailored the order it proposed the court issue, incorporating what it characterized as the trial court’s reasons for rejecting the summary judgment motion, and excluding any mention of issues that might distract from that analysis.

PCM has continued its aggressive strategy on appeal, contending Diaz is precluded from arguing that PCM had waived its right to compel arbitration — the most obvious defense when such a motion is filed on the eve of trial. According to PCM, Diaz cannot make that argument because the trial court’s premature denial of the motion to compel (at PCM’s request) meant Diaz never argued waiver in an opposition to the motion; and because the order PCM drafted did not reflect the trial court had relied on it as a basis for denying the motion. Instead, PCM claims Diaz is relegated to defending the court’s ruling based solely on the analysis PCM crafted in its proposed order, and that we must assess the propriety of that order based solely on that analysis as well.

There are several reasons why PCM cannot succeed in this appeal. But the most significant is the fact PCM invited the trial court’s alleged error when it proposed the court issue the very ruling it now challenges on appeal. By doing that, PCM won the battle — it got the court to issue the appealable order it sought, prior to trial — but it lost the war. A party that invites the trial court to commit error is estopped from challenging that error on appeal.

We conclude PCM and its counsel acted in bad faith, generating an appealable order they knew the trial court had not intended to issue at the ex parte hearing, for the purpose of obtaining a delay of trial. Any confusion about the scope of the court’s intended ex parte ruling was resolved by the court’s own minute order, issued in the wake of the hearing. Further, PCM’s claim that it had prepared its proposed order in compliance with California Rules of Court, rule 3.1312, is specious, and we note the format and content of the proposed order appears deliberately designed to obscure its inclusion of the appealable provision.

Alternatively, we conclude the order denying PCM’s motion to compel arbitration should also be affirmed on the merits, based on our determination that PCM has waived its right to compel arbitration. We acknowledge that as a result of PCM’s machinations, the court made no such express ruling, but we invoke our authority under Code of Civil Procedure section 909 to find that PCM has acted in bad faith in connection with the motion to compel arbitration. And, when we combine that finding with other undisputed procedural facts, we conclude, as a matter of law, that PCM has waived its right to compel arbitration. Our invocation of section 909 is appropriate in the unusual circumstances of this case because we would otherwise feel compelled to remand the case to the trial court for a determination of the waiver issue — and any other defenses to arbitration Diaz might wish to raise — because the premature issuance of the order denying PCM’s motion denied him a fair opportunity to do so. As section 909 states, it is intended to be construed liberally for the purpose of ensuring that “where feasible, causes may be finally disposed of by a single appeal and without further proceedings in the trial court . . . .” That goal of resolving a cause in one appeal is particularly important in a case such as this, where one party has already manipulated the appellate process in a patently unfair manner.

Finally, we also impose monetary sanctions against PCM and its counsel, E. Sean McLoughlin and William A. Meyers, for bringing a frivolous appeal. In accordance with California Rules of Court, rule 8.276, we notified PCM and its counsel that we were considering sanctions, and invited their response to specified concerns. While they did provide a satisfactory explanation for two of the actions we questioned, they also effectively conceded engaging in the conduct we were most disturbed by: i.e., they voluntarily sought an order denying their own motion, with the goal of generating pretrial appellate jurisdiction. We reject counsel’s claim that they believed the court actually intended to deny PCM’s motion to compel arbitration outright at the ex parte hearing, or that they were confused about the scope of the court’s intended ruling. We conclude instead that PCM and its counsel acted in bad faith.

http://www.courts.ca.gov/opinions/documents/G053909.PDF

Clemens v. Qwest (9th Cir. 15-35160/15-35183 11/3/17) Title VII Damages/Gross Up Adjustment

The panel vacated the district court’s order denying the plaintiff a tax adjustment of a damages award in a Title VII case.

Agreeing with the Third, Seventh, and Tenth Circuits, the panel held that in Title VII cases, district courts have discretion to award the equitable relief of a “gross-up” adjustment to compensate for increased income-tax liability resulting from a plaintiff’s receipt of a back-pay award in one lump sum.

The panel remanded the case for further proceedings. It addressed other issues in a concurrently filed memorandum disposition.

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/11/03/15-35160.pdf

Huhmann v. Federal Express Corp. (9th Cir. 15-56744 11/2/17) USERRA/Bonus

The panel affirmed the district court’s judgment, after a bench trial, in favor of the plaintiff, who alleged that upon his return from military service, he was entitled to a higher signing bonus from his employer under the Uniformed Services Employment and Reemployment Rights Act.

The panel held that arbitration was not required because the right awarded by USERRA neither arose out of nor relied on an interpretation of the parties’ collective bargaining agreement, and so the parties’ dispute was not a “minor dispute” under the Railway Labor Act.

The panel held that in analyzing the plaintiff’s USERRA claim, the district court correctly considered first, whether the plaintiff had established that his military service was a “substantial or motivating factor” to cause an adverse employment action, and second, whether the defendant employer had established an affirmative defense that it would have taken the same action without regard to the military service. The panel held that the district court properly used the reasonable certainty test, asking whether it was reasonably certain that the plaintiff would have qualified for a higher bonus had he not left for military service, as an aid to the burden-shifting analysis. The district court also properly relied on the escalator principle, which provides that a returning service member should not be removed from the progress of his career trajectory. The panel concluded that the district court did not clearly err in finding that the plaintiff was reasonably certain to have achieved the higher bonus status had he not left for his military service, both as a matter of hindsight and as a matter of foresight. The panel also affirmed the district court’s conclusion that the bonus was, in part, a seniority-based benefit, and the plaintiff’s claim was not barred by 38 U.S.C. § 4316(b)(1).

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/11/02/15-56744.pdf

Artis v. District of Columbia, 135 A.3d 334 (2016) (US 16-460/15-CV-0243 Oral Argument Transcript 11/1/17) Tolling of State Employment Claim

Whether the tolling provision in 28 U.S.C. § 1367(d) suspends the limitations period for the state-law [employment] claim while the claim is pending and for 30 days after the [federal Title VII] claim is dismissed, or whether the tolling provision does not suspend the limitations period but merely provides 30 days beyond the dismissal for the plaintiff to refile.

Transcript

DC Circuit Opinion

Bonni v. St. Joseph Health System (SC S244148/G052367 Review Granted 11/1/17) Retaliation/Whistleblower Statute

The petition for review is granted. Further action in this matter is deferred pending consideration and disposition of a related issue in Wilson v. Cable News Network, Inc. S239686 (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. Votes: Cantil-Sakauye, C.J., Chin, Corrigan, Liu, Cuéllar and Kruger, JJ. Review granted/holding for lead case.

Docket

Court of Appeal Opinion

Micha v. Sun Life Assurance (9th Cir. 16-55053 10/31/17) ERISA/Attorney’s Fees

The panel reversed the district court’s denial of appellate attorney’s fees under 29 U.S.C. § 1132(g)(1) and remanded for calculation of a reasonable award of fees and costs in an ERISA case.

The panel held that in analyzing a party’s request for appellate attorney’s fees under the Hummell test, a court must consider the entire course of the litigation, rather than focusing exclusively on the prior appeal. Weighing the five Hummell factors in light of all of a defendant’s conduct, from its wrongful denial of the plaintiff’s claim for ERISA benefits to its filing of a petition for a writ of certiorari, the panel held that the moving party was entitled to attorney’s fees for the prior appeal, in which the panel had affirmed an award of litigation attorney’s fees. The panel declined to consider the issue, not raised before the district court, whether fees-on-fees should be automatically awarded, without application of the Hummell test.

Concurring, Judge Berzon wrote that, were the panel reaching the issue, she would hold that attorney’s fees should be awarded automatically on appeal to a party that successfully defends the fees it was awarded at the district court, in ERISA cases as in others.

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/10/31/16-55053.pdf

Denton v. City and County of San Francisco (CA1/2 A147384 10/30/17) Retaliation/Denial of Continuance to Hear Summary Judgment Motion

Plaintiff Richard Denton filed a lawsuit against defendants City and County of San Francisco, his employer, and John Doyle, his supervisor (when referred to collectively, defendants). Defendants filed a motion for summary judgment, and in the weeks leading up to the hearing on the motion the parties engaged in settlement discussions. That led to a settlement—for $250,000—and Denton’s then-counsel filed a notice of conditional settlement. A week later, after Denton had discharged his attorney, defendants’ counsel successfully applied ex parte to have the settlement set aside—this, despite Denton twice assuring defendants’ counsel that he was not backing out of the settlement. Four days later, defendants’ summary judgment motion came on for hearing. Denton, appearing in propria persona, and insisting the parties had agreed to a settlement, requested a continuance so he could oppose the motion. The trial court denied the request and granted defendants’ motion on the ground it was unopposed. Denton then filed a motion for new trial, which the trial court denied.

We reverse, concluding the trial court abused its discretion in denying Denton’s request to continue the hearing on the summary judgment motion and in denying his motion for new trial.

http://www.courts.ca.gov/opinions/documents/A147384.PDF

Serrano v. Superior Court (CA2/1 B282975 10/30/17) Pitchess Motion

Defendant Manuel Serrano, charged with the sale and transportation of a controlled substance, moved for in camera review and pretrial disclosure of potential impeachment material the district attorney informed him is contained in the personnel file of the arresting deputy, who is expected to testify at Serrano’s trial. The superior court denied the motion. Serrano petitioned for writ of mandate. We grant the petition and direct the superior court to vacate its order denying Serrano’s motion and enter a new and different order granting the motion.

http://www.courts.ca.gov/opinions/documents/B282975.PDF

M.F. v. Pacific Pearl Hotel Management LLC (CA4/1 D070150 10/26/17) FEHA Sexual Harassment by Nonemployee

In this appeal, we address whether, for purposes of overcoming the workers' compensation exclusivity doctrine (Lab. Code, §§ 3600, subd. (a), 3602, subd. (a)), a housekeeping employee stated claims against her hotel employer for violating provisions in the California Fair Employment and Housing Act (FEHA; Gov. Code, § 12900 et seq.) requiring the employer to protect the employee from nonemployee sexual harassment. The employee alleged facts showing: (1) she was raped while working on the employer's premises by a drunk nonemployee trespasser; (2) the employer knew or should have known the trespasser was on the employer's premises for about an hour before the rape occurred; and (3) the employer knew or should have known that, while on the employer's premises, the trespasser had aggressively propositioned at least one other housekeeping employee for sexual favors.

We conclude these facts are sufficient to state claims under the FEHA for sexual harassment by a nonemployee (§ 12940, subd. (j)(1)) and for failure to prevent such harassment (§ 12940, subd. (k)). Because the superior court determined otherwise and dismissed the employee's operative third amended complaint (complaint) after sustaining the employer's demurrer to it without leave to amend, we reverse the judgment and remand the matter to the court for further proceedings consistent with this decision.

http://www.courts.ca.gov/opinions/documents/D070150.PDF

Baxter v. Genworth North America Corporation (CA1/3 A144744 10/26/17) Arbitration/Unconscionability

Plaintiff Maya Baxter sued her former employer, defendant Genworth North America Corporation (Genworth), for wrongful termination and related causes of action arising out of her employment. Genworth moved to compel arbitration of the dispute. On appeal from an order denying its motion to compel arbitration, Genworth contends the trial court erred in concluding the arbitration agreement is unconscionable and in refusing to sever any provisions the court considered to be unconscionable. Because we conclude the arbitration agreement is procedurally and substantively unconscionable, we shall affirm the trial court’s order.

http://www.courts.ca.gov/opinions/documents/A144744.PDF

Arnaudo Brothers v. Agricultural Labor Relations Bd. (2017) 221 Cal.Rptr.3d 643 (SC S244322/F072420 review granted 10/25/17) ALRB/Disclaimer Defense

Petition for review by respondent Agricultural Labor Relations Board is granted. Further action in this matter is deferred pending consideration and disposition of a related issue in Tri-Fanucchi Farms v. Agricultural Labor Relations Board, S227270 (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. The petition for review by appellants Arnaudo Brothers, LP and Arnaudo Brothers, Inc. is denied. Votes: Cantil-Sakauye, C.J., Chin, Corrigan, Liu, Cuéllar and Kruger, JJ. Review granted/holding for lead case.

Docket

Court of Appeal Decision

Beneli v. NLRB (9th Cir. 15-73426 10/17/17) NLRB Deferring to Arbitral Decisions Standard

The panel denied an employee’s petition for review, held that the National Labor Relations Board (“NLRB”) properly applied a new standard for deferring to arbitral decisions only prospectively, and upheld the NLRB’s substantive decision to affirm an arbitral decision – denying the employee’s unfair labor practice complaint – under the previous more deferential standard.

The panel applied the five factors articulated in Montgomery Ward & Co. v. FTC, 691 F.2d 1322, 1333 (9thCir. 1982), to review the NLRB’s decision to apply only prospectively the new standard for arbitral deferral. First ,the panel held that this case was a case of “first impression,” and the factor weighed in favor of retroactive application of the new standard. Second, the panel held that the new standard represented an abrupt departure from well-established practice, and this factor strongly favored prospective application. Third, the panel held that the employer relied on the old standard that was in place for nearly 60 years, and this reliance and other equitable considerations supported only the prospective application of the new standard. Fourth, the panel held that retroactive application would severely burden the employer, and this favored prospective application. Fifth, the panel held that the balance of statutory interests favored prospective application. The panel concluded that the NLRB did not abuse its discretion when it deferred to the arbitral decision under the old more deferential standard set forth in Spielberg Mfg. Co., 112 N.L.R.B. 1080 (1995), and Olin Corp., 268 N.L.R.B. 573 (1984).

Judge Fletcher concurred in the result. Judge Fletcher dissented from the majority’s use of the factors articulated in Montgomery Ward & Co. to review the NLRB’s decision to apply only prospectively the new deference rule. Instead, Judge Fletcher would address the prospective-only application of the new rule under the NLRB v. Wyman Gordon, 394 U.S. 759 (1969), framework, which addresses concerns of informed and deliberate agency rulemaking.

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/10/17/15-73426.pdf

Melendez v. San Francisco Baseball Associates (CA1/3 A149482 10/17/17) Arbitration/CBA and LMRA Arbitration

Defendant San Francisco Baseball Associates LLC (the Giants) appeals from the denial of its motion to compel arbitration of the wage and hour claims of plaintiff George Melendez. Plaintiff, a security guard employed by the Giants at AT&T Park, contends that he and other security guards were employed “intermittingly” for specific job assignments (baseball games or other events) and were discharged “at the end of a homestand, at the end of a baseball season, at the end of an inter-season event like a fan fest, college football game, a concert, a series of shows, or other events,” and that therefore under Labor Code section 201 were entitled to but did not receive immediate payment of their final wages upon each such “discharge.” The Giants contend that payment immediately after each such event is not required because under the terms of the collective bargaining agreement (CBA) between the Giants and the Service Employees International Union, United Service Workers West of San Francisco (the union), Melendez and all such security guards are not intermittent employees but are “year-round employees who remain employed with the Giants until they resign or are terminated pursuant to the CBA.” The Giants moved to compel arbitration or to dismiss the action under the arbitration provision of the CBA and on the ground that the action is preempted by section 301 of the Labor Management Relations Act, 29 United States Code, section 185(a). The trial court rejected both grounds. We agree that the present dispute is not within the scope of the arbitration provision in the CBA but conclude that arbitration is required by section 301 of the Labor Management Relations Act.

http://www.courts.ca.gov/opinions/documents/A149482.PDF

Airline Serv. Providers v. LA World Airports (9th Cir. 15-55571 10/16/17) Market Participant/NRLA, RLA ADA Preemption

The panel filed (1) an order (a) granting petitions for panel rehearing with respect to the request that the court amend its opinion to affirm the district court’s denial of leave to amend but denying the petitions for panel rehearing in all other respects, (b) denying petitions for rehearing en banc, (c) withdrawing the opinion, and (d) directing the filing of a new opinion; and (2) a new opinion affirming the district court’s dismissal of an action brought by two air transport trade associations asserting that the City of Los Angeles, in its capacity as proprietor of Los Angeles International Airport, may not require businesses at the airport to accept a contractual condition concerning labor agreements.

In its new opinion, the panel wrote that airlines that operate out of LAX hire third-party businesses to refuel and load planes, take baggage and tickets, help disabled passengers, and provide similar services. The City licenses those service providers using a contract that imposes certain conditions. One such condition, section 25, requires service providers to enter a “labor peace agreement” with any employee organization that requests one. The trade associations argued that, because the City operates LAX, the contractual conditions in LAX’s standard licensing agreement are effectively municipal regulations. The associations contended that section 25, as one such “regulation,” was preempted by the National Labor Relations Act, the Railway Labor Act, and the Airline Deregulation Act.

The panel held that the Airline Service Providers Association had associational standing to pursue all of its claims.

The panel held that the associations failed to state a preemption claim. The panel concluded that the City was acting as a market participant, and not a regulator, when it added section 25 to its LAX licensing contract because, under the Cardinal Towing test, the City was attempting to avoid disruption of its business, and the decision to adopt section 25 was narrowly tied to a specific proprietary problem. The panel also concluded that the preemption provisions of the NLRA, the RLA, and the ADA do not apply to state and local governmental actions taken as a market participant.

The panel held that the district court did not err by denying leave to amend the complaint.

Concurring in part and dissenting in part, Judge Tallman agreed with the majority that the ASPA had standing to assert its claims. Judge Tallman disagreed with the majority’s conclusion that, as is, the complaint failed to state a plausible claim that the City enacted section 25 as a regulatory measure rather than a proprietary one. He wrote that the complaint sufficiently alleged that section 25 was an overly broad and facially suspect regulation of labor relations that contravened the delicate congressional balancing of national labor relations policy affecting key facilities of interstate commerce.

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/10/16/15-55571.pdf

2017-18 CA Legislative Session Labor & Employment and Related Bills Signed by Governor

AB 20 by Assemblymember Ash Kalra (D-San Jose) - Public employee retirement systems: divestment: Dakota Access Pipeline.
AB 31 by Assemblymember Freddie Rodriguez (D-Pomona) – Whistleblowers: California State Auditor.
AB 46 by Assemblymember Jim Cooper (D-Elk Grove) - Employers: wage discrimination.
AB 55 by Assemblymember Tony Thurmond (D-Richmond) – Hazardous materials management: stationary sources.
AB 83 by Assemblymember Miguel Santiago (D-Los Angeles) – Collective bargaining: Judicial Council.
AB 168 by Assemblymember Susan Eggman (D-Stockton) Employers: salary information.
AB 199 by Assemblymember Kansen Chu (D-San Jose) – Public works: private residential projects.
AB 226 by Assemblymember Sabrina Cervantes (D-Corona) – Teacher credentialing: spouses of active duty members of the Armed Forces: expedited application process.
AB 260 by Assemblymember Miguel Santiago (D-Los Angeles) - Human trafficking.
AB 317 by Assemblymember Cecilia Aguiar-Curry (D-Winters) – Napa County: farmworker housing.
AB 326 by Assemblymember Jim L. Frazier Jr. (D-Oakley) – Public works: prevailing wage rates: wage and penalty assessments.
AB 415 by Assemblymember David Chiu (D-San Francisco) – CalFresh: employment social enterprises.
AB 450 by Assemblymember David Chiu (D-San Francisco) - Employment regulation: immigration worksite enforcement actions.
AB 491 by Assemblymember Al Muratsuchi (D-Torrance) – California Civil Liberties Public Education Act.
AB 500 by Assemblymember Richard H. Bloom (D-Santa Monica) - Employee codes of conduct: employee interactions with pupils.
AB 512 by Assemblymember Freddie Rodriguez (D-Pomona) – Public employees’ retirement: safety members: industrial disability retirement.
AB 563 by Assemblymember Joaquin Arambula (D-Fresno) – CalFresh Employment and Training program.
AB 579 by Assemblymember Heath Flora (R-Ripon) – Apprenticeship: fire protection: firefighter preapprenticeship program.
AB 581 by Assemblymember Kevin McCarty (D-Sacramento) - Apprenticeships on public works projects.
AB 618 by Assemblymember Evan Low (D-Campbell) – Local Agency Public Construction Act: job order contracting: school districts: community college districts.
SB 658 by Senator Scott Wiener (D-San Francisco) – Jury selection.
AB 670 by Assemblymember Tony Thurmond (D-Richmond) - Classified employees: part-time playground positions.
AB 699 by Assemblymember Patrick O'Donnell (D-Long Beach) - Educational equity: immigration and citizenship status.
AB 736 by Assemblymember Ken Cooley (D-Rancho Cordova) – State teachers' retirement: executive positions.
AB 828 by Assemblymember Jay P. Obernolte (R-Big Bear Lake) - Civil actions: fee recovery.
AB 848 by Assemblymember Kevin McCarty (D-Sacramento) – Public contracts: University of California: California State University: domestic workers.
AB 851 by Assemblymember Anna Caballero (D-Salinas) – Local agency contracts.
AB 978 by Assemblymember Robert Blumenfield (D-Woodland Hills) – Financial institutions: Iran sanctions.
AB 1008 by Assemblymember Kevin McCarty (D-Sacramento) - Employment discrimination: conviction history.
AB 1066 by Assemblymember Lorena Gonzalez (D-San Diego) – Agricultural workers: wages, hours, and working conditions.
AB 1102 by Assemblymember Freddie Rodriguez (D-Pomona) – Health facilities: whistleblower protections.
AB 1111 by Assemblymember Eduardo Garcia (D-Coachella) – Removing Barriers to Employment Act: Breaking Barriers to Employment Initiative.
AB 1149 by Assemblymember Joaquin Arambula (D-Fresno) – Workforce investment boards: funding.
AB 1221 by Assemblymember Lorena Gonzalez Fletcher (D-San Diego) – Alcoholic beverage control: Responsible Beverage Service Training Program Act of 2017.
AB 1222 by Assemblymember Bill Quirk (D-Hayward) – Vehicles: electronic wireless communications devices.
AB 1223 by Assemblymember Anna Caballero (D-Salinas) - Construction contract payments: Internet Web site posting.
AB 1243 by Assemblymember Joaquin Arambula (D-Fresno) – Public Employees’ Retirement System: replacement benefits plan.
AB 1325 by the Committee on Public Employees, Retirement, and Social Security – State teachers’ retirement.
AB 1424 by Assemblymember Marc B. Levine (D-Marin County) – University of California: Best Value Construction Contracting Program.
AB 1455 by Assemblymember Raul Bocanegra (D-Pacoima) - The California Public Records Act: exemptions.
AB 1687 by Assemblymember Ian C. Calderon (D-Whittier) – Customer records: age information: commercial online entertainment employment service providers.
AB 1692 by Assemblymember Susan Bonilla (D-Concord) – County employees' retirement: Contra Costa County.
AB 1701 by Assemblymember Tony Thurmond (D-Richmond) - Labor-related liabilities: original contractor. A signing message can be found here.
AB 1710 by the Committee on Veterans Affairs - Prohibited discrimination against service members.
AB 1840 by Assemblymember Mike A. Gipson (D-Carson) – State agencies: interns and student assistants: hiring preference.
AB 1875 by Assemblymember Rocky Chávez (R-Oceanside) – State teachers' retirement: option beneficiaries: trusts.
AB 1918 by Assemblymember Patrick O’Donnell (D-Long Beach) – Teacher credentialing: temporary certificates.
AB 2025 by Assemblymember Lorena Gonzalez (D-San Diego) – Barbering and cosmetology: labor law education requirements.
AB 2036 by Assemblymember Patty Lopez (D-San Fernando) – Online child care job posting services: background check service providers: enforcement.
AB 2105 by Assemblymember Freddie Rodriguez (D-Pomona) – Workforce development: allied health professions.
AB 2230 by Assemblymember Kansen Chu (D-San Jose) – Overtime compensation: private elementary or secondary academic institutions: teachers.
AB 2296 by Assemblymember Evan Low (D-Campbell) – Digital signatures (applicable to DFEH online right-to-sue requests).
AB 2337 by Assemblymember Autumn R. Burke (D-Inglewood) – Employment protections: victims of domestic violence, sexual assault, or stalking.
AB 2375 by the Committee on Public Employees, Retirement, and Social Security – Public Employees' Retirement System: omnibus bill.
AB 2376 by the Committee on Public Employees, Retirement, and Social Security – County employees’ retirement: Los Angeles County.
AB 2899 by Assemblymember Roger Hernández (D-West Covina) – Minimum wage violations: challenges.
SB 24 by Senator Jerry Hill (D-San Mateo) – California Public Employees' Pension Reform Act of 2013: joint powers authority: employees.
SB 31 by Senator Ricardo Lara (D-Bell Gardens) – California Religious Freedom Act: state agencies: disclosure of religious affiliation information.
SB 33 by Senator Bill Dodd (D-Napa) – Arbitration agreements.
SB 63 by Senator Hannah-Beth Jackson (D-Santa Barbara) Unlawful employment practice: parental leave.
SB 112 by the Committee on Budget and Fiscal Review – State government.
SB 156 by Senator Joel Anderson (R-Alpine) - Military and veterans: transition assistance: citizenship.
SB 179 by Senator Toni G. Atkins (D-San Diego) – Gender identity: female, male, or nonbinary.
SB 201 by Senator Nancy Skinner (D-Berkeley) – Higher Education Employer-Employee Relations Act: employees.
SB 225 by Senator Henry Stern (D-Agoura Hills) - Human trafficking: notice.
SB 258 by Senator Ricardo Lara (D-Bell Gardens) – Cleaning Product Right to Know Act of 2017.
SB 266 by Senator Bill Dodd (D-Napa) – Armed service members: consumer loans.
SB 282 by Senator Scott Wiener (D-San Francisco) – CalFresh and CalWORKs.
SB 285 by Senator Toni G. Atkins (D-San Diego) - Public employers: union organizing.
SB 295 by Senator William W. Monning (D-Carmel) – Farm labor contractors: sexual harassment prevention.
SB 306 by Senator Robert M. Hertzberg (D-Van Nuys) – Retaliation actions: complaints: administrative review.
SB 310 by Senator Toni G. Atkins (D-San Diego) – Name and gender change: prisons and county jails.
SB 334 by Senator Bill Dodd (D-Napa) – Enhanced industrial disability leave.
SB 396 by Senator Ricardo Lara (D-Bell Gardens) – Employment: gender identity, gender expression, and sexual orientation.
SB 418 by Senator Ed Hernandez (D-West Covina) – Public contracts: skilled and trained workforce.
SB 490 by Senator Steven Bradford (D-Gardena) – Wages: Barbering and Cosmetology Act: licensees.
SB 514 by Senator Joel Anderson (R-Alpine) – California Health Benefit Exchange.
SB 597 by Senator Connie M. Leyva (D-Chino) - Human trafficking: victim confidentiality.
SB 728 by Senator Josh Newman (D-Fullerton) - State public employees: sick leave: veterans with service-related disabilities.
SB 731 by Senator Josh Newman (D-Fullerton) - Public school employees: former or current members of the Armed Forces of the United States or California National Guard: leave of absence for illness or injury.
SB 776 by Senator Josh Newman (D-Fullerton) - Corrections: veterans' benefits.
SB 1015 by Senator Connie M. Leyva (D-Chino) – Domestic work employees: labor standards.
SB 1241 by Senator Bob Wieckowski (D-Fremont) – Employment contracts: adjudication: choice of law and forum.
SB 1353 by Senator Richard Pan (D-Sacramento) – State Teachers' Retirement System: funding.

Bills Signed by Governor (10/15/17)

AB 83 by Assemblymember Miguel Santiago (D-Los Angeles) – Collective bargaining: Judicial Council.
AB 512 by Assemblymember Freddie Rodriguez (D-Pomona) – Public employees’ retirement: safety members: industrial disability retirement.
AB 848 by Assemblymember Kevin McCarty (D-Sacramento) – Public contracts: University of California: California State University: domestic workers.
AB 1221 by Assemblymember Lorena Gonzalez Fletcher (D-San Diego) – Alcoholic beverage control: Responsible Beverage Service Training Program Act of 2017.
AB 1424 by Assemblymember Marc B. Levine (D-Marin County) – University of California: Best Value Construction Contracting Program.
SB 179 by Senator Toni G. Atkins (D-San Diego) – Gender identity: female, male, or nonbinary.
SB 201 by Senator Nancy Skinner (D-Berkeley) – Higher Education Employer-Employee Relations Act: employees.
SB 310 by Senator Toni G. Atkins (D-San Diego) – Name and gender change: prisons and county jails.
SB 334 by Senator Bill Dodd (D-Napa) – Enhanced industrial disability leave.
SB 396 by Senator Ricardo Lara (D-Bell Gardens) – Employment: gender identity, gender expression, and sexual orientation.

Bills Vetoed by Governor (10/15/17)

AB 432 by Assemblymember Tony Thurmond (D-Richmond) – Personal care services. A veto message can be found here.
AB 568 by Assemblymember Lorena Gonzalez Fletcher (D-San Diego) – School and community college employees: paid maternity leave. A veto message can be found here.
AB 569 by Assemblymember Lorena Gonzalez Fletcher (D-San Diego) – Discrimination: reproductive health. A veto message can be found here.
AB 1513 by Assemblymember Ash Kalra (D-San Jose) – Registered home care aides: disclosure of contact information. A veto message can be found here.
SB 169 by Senator Hannah-Beth Jackson (D-Santa Barbara) – Education: sex equity. A veto message can be found here.
SB 574 by Senator Ricardo Lara (D-Bell Gardens) – University of California: contracts: bidding. A veto message can be found here.
SB 599 by Senator Anthony Portantino (D-La Cañada Flintridge) – Public Employees’ Medical and Hospital Care Act: Peace Officers Research Association of California Insurance and Benefits Trust. A veto message can be found here.

Bills Signed by Governor (10/15/17)

AB 851 by Assemblymember Anna Caballero (D-Salinas) – Local agency contracts.
AB 1111 by Assemblymember Eduardo Garcia (D-Coachella) – Removing Barriers to Employment Act: Breaking Barriers to Employment Initiative.
SB 31 by Senator Ricardo Lara (D-Bell Gardens) – California Religious Freedom Act: state agencies: disclosure of religious affiliation information.
SB 490 by Senator Steven Bradford (D-Gardena) – Wages: Barbering and Cosmetology Act: licensees.

Bills Vetoed by Governor (10/15/17)

AB 45 by Assemblymember Tony Thurmond (D-Richmond) – California School Employee Housing Assistance Grant Program. A veto message can be found here.
AB 1209 by Assemblymember Lorena Gonzalez Fletcher (D-San Diego) – Employers: gender pay differentials. A veto message can be found here.

Bills Signed by Governor (10/14/17)

AB 46 by Assemblymember Jim Cooper (D-Elk Grove) - Employers: wage discrimination.
AB 1008 by Assemblymember Kevin McCarty (D-Sacramento) - Employment discrimination: conviction history.
AB 1137 by Assemblymember Brian Maienschein (R-San Diego) - Housing developments: pet permissibility.
AB 1556 by Assemblymember Mark Stone (D-Scotts Valley) - Employment discrimination: unlawful employment practices.
AB 1620 by Assemblymember Matthew M. Dababneh (D-Encino) - Political Reform Act of 1974: postgovernment employment.
AB 1701 by Assemblymember Tony Thurmond (D-Richmond) - Labor-related liabilities: original contractor. A signing message can be found here.
SB 550 by Senator Richard Pan (D-Sacramento) - Public school employment: meeting and negotiating: legal actions: settlement offer: attorney's fees.

Bills Vetoed by Governor (10/14/17)

AB 530 by Assemblymember Jim Cooper (D-Elk Grove) - Public employment: collective bargaining: peace officers. A veto message can be found here.
AB 952 by Assemblymember Eloise Reyes (D-San Bernardino) - Teachers: Bilingual Teacher Professional Development Program: bilingual teacher shortage pathways. A veto message can be found here.
AB 978 by Assemblymember Monique Limόn (D-Santa Barbara) - Employment safety: injury and illness prevention program. A veto message can be found here.
AB 1068 by Assemblymember Lorena Gonzalez Fletcher (D-San Diego) - Prison Industry Authority: private employer: pilot program. A veto message can be found here..
SB 491 by Senator Steven Bradford (D-Gardena) - Civil rights: discrimination: enforcement. A veto message can be found here.

Bills Signed by Governor (10/13/17)

AB 44 by Assemblymember Eloise Gómez Reyes (D-San Bernardino) – Workers’ compensation: medical treatment: terrorist attacks: workplace violence.
AB 677 by Assemblymember David Chiu (D-San Francisco) – Data collection: sexual orientation.
AB 1127 by Assemblymember Ian C. Calderon (D-Whittier) – Baby diaper changing stations.
AB 1651 by Assemblymember Eloise Gómez Reyes (D-San Bernardino) – Community colleges: academic employees: involuntary administrative leave.
SB 182 by Senator Steven Bradford (D-Gardena) – Transportation network company: participating drivers: single business license.
SB 189 by Senator Steven Bradford (D-Gardena) – Workers’ compensation: definition of employee.

Bills Vetoed by Governor (10/13/17)

AB 296 by Assemblymember Sabrina Cervantes (D-Corona) – Task force: health of women veterans. A veto message can be found here..
AB 570 by Assemblymember Lorena Gonzalez Fletcher (D-San Diego) – Workers’ compensation: permanent disability apportionment. A veto message can be found here.
AB 961 by Assemblymember Sharon Quirk-Silva (D-Fullerton) – Disabled Veteran Business Enterprise Program. A veto message can be found here..
AB 1607 by Assemblymember Jim L. Frazier Jr. (D-Discovery Bay) – Developmental services: integrated competitive employment. A veto message can be found here.

Ly v. County of Fresno (CA5 F072351, filed 9/15/17, pub. ord. 10/12/17) FEHA/Workers’ Comp/Res Judicata

Three Laotian correctional officers, Va Ly, Travis Herr and Pao Yang, were allegedly subjected to racial and national origin discrimination, harassment and retaliation by their employer, the County of Fresno (County), and its employees. The three filed suit against the County pursuant to the Fair Employment and Housing Act (FEHA), Government Code section 12900 et seq., while simultaneously pursuing their workers’ compensation remedies. In separate workers’ compensation proceedings, the administrative law judges denied plaintiffs’ claims after finding the County’s actions were non-discriminatory, good faith personnel decisions. The County moved for summary judgment based on the doctrines of res judicata and collateral estoppel, arguing the workers’ compensation decisions barred plaintiffs’ FEHA claims. The trial court granted summary judgment.

On appeal, plaintiffs contend (1) collateral estoppel does not apply because the findings in the workers’ compensation proceedings that the County’s actions were lawful, non-discriminatory, good faith personnel actions were not necessary to the decisions, and (2) neither res judicata nor collateral estoppel apply because the workers’ compensation and FEHA actions involve different primary rights. We conclude res judicata bars plaintiffs’ claims in this action and affirm the judgment.

http://www.courts.ca.gov/opinions/documents/F072351.PDF

Bills Signed by Governor (10/12/17)

AB 168 by Assemblymember Susan Eggman (D-Stockton) Employers: salary information.
SB 63 by Senator Hannah-Beth Jackson (D-Santa Barbara) Unlawful employment practice: parental leave.

Association for Los Angeles Deputy Sheriffs v. Superior Court (2017) 221 Cal.Rptr.3d 51 (SC S243855/B280676 review granted 10/11/17) Pitchess Statutes

The petition for review is granted. The parties will brief the following issue: When a law enforcement agency creates an internal Brady list (see Gov. Code, § 3305.5), and a peace officer on that list is a potential witness in a pending criminal prosecution, may the agency disclose to the prosecution (a) the name and identifying number of the officer and (b) that the officer may have relevant exonerating or impeaching material in his or her confidential personnel file, or can such disclosure be made only by court order on a properly filed Pitchess motion? (See Brady v. Maryland (1963) 373 U.S. 83; People v. Superior Court (Johnson) (2015) 61 Cal.4th 696; Pitchess v. Superior Court (1974) 11 Cal.3d 531; Pen. Code, §§ 832.7-832.8; Evid. Code, §§ 1043-1045.) Votes: Cantil-Sakauye, C.J., Chin, Corrigan, Liu, Cuéllar and Kruger, JJ. Review granted/issues limited/counsel needed.

Docket

Court of Appeal Decision

Bill Signed by Governor (10/11/17)

AB 864 by Assemblymember Kevin McCarty (D-Sacramento) – California Conservation Corps: applicant selection.
AB 1379 by Assemblymember Tony Thurmond (D-Richmond) – Certified access specialist program: funding.
AB 1705 by Assemblymember Evan Low (D-Campbell) – State Board of Guide Dogs for the Blind: guide dog instructors.

Flores v. City of Westminster (9th Cir 14-56832 10/11/17) § 1981/FEHA Race & National Origin Discrimination/Retaliation

The panel affirmed in part and vacated in part the district court’s judgment, after a jury trial, in favor of three police officers of Latino descent who alleged discrimination and retaliation in violation of 42 U.S.C. § 1981 and the California Fair Employment and Housing Act.

The panel affirmed the district court’s denial of the defendant City of Westminster’s motions for a new trial and judgment as a matter of law on Officer Jose Flores’s claim of retaliation in violation of FEHA. Viewing the evidence in the light most favorable to Officer Flores and drawing all reasonable inferences in his favor, the panel held that Officer Flores established that the City subjected him to one or more adverse employment actions, that his protected conduct was a substantial motivating factor behind the adverse employment actions, and that the City’s proffered reasons for its actions were pretextual. The panel also affirmed the jury’s award of damages to Officer Flores on the FEHA retaliation claim. The panel concluded that Officer Flores was not awarded a double recovery because the FEHA damages award did not necessarily overlap with the damages awarded against the defendant police chiefs for their individual retaliatory actions in violation of § 1981.

The panel held that the district court did not err in denying the officers’ discrimination and retaliation claims against the police chiefs under § 1981, which prohibits discrimination in the making and enforcement of contracts by reason of race. The panel held that California law providing that the employment relationship between the state and its civil service employees is governed by statute rather than contract should not be read to bar public employees from bringing claims under § 1981. The panel distinguished Judie v. Hamilton, 872 F.2d 919 (9th Cir. 1989), which predated the 1991 amendments to § 1981 expanding the reach of the statute’s “make and enforce contracts” term.

The panel held that the district court did not abuse its discretion in evidentiary rulings. The panel held that there was no prejudicial error in allowing a jury instruction on the Uniform Services Employment and Reemployment Rights Act.

The panel held that the jury’s verdict against two police chiefs for race discrimination in violation of § 1981 was not fatally inconsistent. In addition, the verdict finding the chiefs individually liable, and awarding punitive damages, was not against the clear weight of the evidence. The panel declined to reduce the punitive damages awards as unconstitutionally excessive.

The panel vacated the judgment against Chief Mitchell Waller, who died before trial, and remanded for the district court to grant two officers leave to substitute Chief Waller’s estate pursuant to Fed. R. Civ. P. 25(a)(1).

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/10/11/14-56832.pdf

Bills Signed by Governor (10/9/17)

AB 31 by Assemblymember Freddie Rodriguez (D-Pomona) – Whistleblowers: California State Auditor.
AB 55 by Assemblymember Tony Thurmond (D-Richmond) – Hazardous materials management: stationary sources.
AB 199 by Assemblymember Kansen Chu (D-San Jose) – Public works: private residential projects.
AB 1066 by Assemblymember Cecilia Aguiar-Curry (D-Winters) – Public works: definition.

Bills Signed by Governor (10/8/17)

AB 20 by Assemblymember Ash Kalra (D-San Jose) - Public employee retirement systems: divestment: Dakota Access Pipeline.
AB 500 by Assemblymember Richard H. Bloom (D-Santa Monica) - Employee codes of conduct: employee interactions with pupils.
AB 670 by Assemblymember Tony Thurmond (D-Richmond) - Classified employees: part-time playground positions.
AB 828 by Assemblymember Jay P. Obernolte (R-Big Bear Lake) - Civil actions: fee recovery.
AB 1223 by Assemblymember Anna Caballero (D-Salinas) - Construction contract payments: Internet Web site posting.
AB 1710 by the Committee on Veterans Affairs - Prohibited discrimination against service members.
SB 728 by Senator Josh Newman (D-Fullerton) - State public employees: sick leave: veterans with service-related disabilities.
SB 731 by Senator Josh Newman (D-Fullerton) - Public school employees: former or current members of the Armed Forces of the United States or California National Guard: leave of absence for illness or injury.
SB 776 by Senator Josh Newman (D-Fullerton) - Corrections: veterans' benefits.

Bill Vetoed by Governor (10/8/17)

AB 621 by Assemblymember Raul Bocanegra (D-Pacoima) - Classified employees: Classified School Employees Summer Furlough Fund. A veto message can be found here.

Bills Signed by Governor (10/7/17)

AB 260 by Assemblymember Miguel Santiago (D-Los Angeles) - Human trafficking.
AB 581 by Assemblymember Kevin McCarty (D-Sacramento) - Apprenticeships on public works projects.
AB 1455 by Assemblymember Raul Bocanegra (D-Pacoima) - The California Public Records Act: exemptions.
SB 225 by Senator Henry Stern (D-Agoura Hills) - Human trafficking: notice.
SB 285 by Senator Toni G. Atkins (D-San Diego) - Public employers: union organizing.
SB 597 by Senator Connie M. Leyva (D-Chino) - Human trafficking: victim confidentiality.

Linton v. DeSoto Cab Company (CA1/1 A146162 10/5/17) Wage and Hour/Gate Fee

Plaintiff Darnice Linton appeals from a judgment in favor of defendant DeSoto Cab Company. Defendant initiated the trial court proceeding after the Labor Commissioner found in favor of plaintiff on his claim for unpaid wages. Plaintiff had alleged defendant violated certain wage and hour laws by requiring him to pay a set fee (known as a “gate fee”) in exchange for obtaining a taxicab to drive for each of his shifts. After a bench trial, the court concluded plaintiff was not entitled to recover the gate fees because he was an independent contractor and not an employee of defendant. In so ruling, the court determined that several relevant cases, including the Supreme Court’s seminal case S.G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341 (Borello), are not controlling under the circumstances at issue here. We conclude the court erred in its legal analysis. The judgment is therefore reversed. Our conclusion renders moot defendant’s appeal of the court’s order denying its claim for costs.

http://www.courts.ca.gov/opinions/documents/A146162.PDF

PHYLLIS W. CHENG, ESQ .

CALIFORNIA CASE LAW ALERT