Chronological e-mail alerts prepared for the California Lawyers Association (formerly State Bar of California) Labor & Employment Law Section 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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Bacilio v. City of Los Angeles (CA2/2 B279217 10/25/18) Public Safety Officers Procedural Bill of Rights Act/Tolling Period

The Public Safety Officers Procedural Bill of Rights Act (POBRA), Government Code section 3300 et seq., requires public agencies investigating misconduct by a public safety officer to complete their investigation and notify the officer of any proposed discipline within one year of discovering the misconduct. (§ 3304, subd. (d)(1).) If the possible misconduct “is also the subject of a criminal investigation or criminal prosecution,” the one-year period is tolled while the “criminal investigation or criminal prosecution is pending.” (§ 3304, subd. (d)(2)(A).) This appeal presents the question: When is a criminal investigation no longer “pending”? In other words, when does this tolling period end for a criminal investigation? We hold that a criminal investigation is no longer pending—and section 3304, subdivision (d)(2)(A)’s tolling period ends—when a final determination is made not to prosecute all of the public safety officers implicated in the misconduct at issue. Applying this definition, we conclude that the tolling period did not end until the Los Angeles County District Attorney officially rejected prosecution of all three officers investigated in this case. Consequently, the investigation and discipline in this case was timely. We accordingly affirm.

http://www.courts.ca.gov/opinions/documents/B279217.PDF

Raam Construction, Inc. v. Occupational Safety and Health etc. (CA1/3 A149734, filed 9/28/18, pub. ord. 10/25/18) Occupational Safety and Health Appeals Board

This is an appeal from judgment after the trial court sustained the demurrer filed by real party in interest Division of Occupational Safety and Health (DOSH) and granted the motion to dismiss filed by defendant Occupational Safety and Health Appeals Board (Appeals Board), without leave to amend, on untimeliness grounds. Plaintiff Raam Construction, Inc. (Raam) challenges these rulings and the resulting judgment of dismissal as a misinterpretation of the applicable statute, Labor Code section 6627. We affirm.

http://www.courts.ca.gov/opinions/documents/A149734.PDF

Garcia v. Border Transportation Group, LLC (CA4/1 D072521 partial pub. 10/22/18) Borella, not Dynamex, Controls Non-Wage-Order Claims

Plaintiff Jesus Cuitlahuac Garcia filed a wage and hour lawsuit against Border Transportation Group, LLC (BTG), its owner Erik Ortega, and BTG employee Martha Ortega. Some of Garcia's claims are based on Industrial Welfare Commission (IWC) wage orders; others are not. The trial court granted defendants' motion for summary judgment on all eight causes of action on the basis that Garcia was an independent contractor, not an employee. After Garcia's appeal was fully briefed, the Supreme Court issued a ruling in Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th 903 (Dynamex), clarifying the employee-independent contractor question as to wage order claims.

As we explain, Dynamex compels the conclusion that defendants did not meet their burden on summary judgment to show no triable issue of material fact as to Garcia's wage order claims. Under part C of the "ABC" test adopted in Dynamex, defendants had to demonstrate that Garcia "is customarily engaged in an independently established trade, occupation, or business" apart from his work for BTG, not that he was merely capable of such engagement. (Dynamex, supra, 4 Cal.5th at p. 963, italics added.) We reach a different result as to the non-wage-order claims, to which Dynamex does not apply. As to those claims discussed in the nonpublished portion of our opinion, Garcia forfeited appellate review of the trial court's decision that he was not an employee under the standard articulated in S.G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341 (Borello).

Accordingly, we reverse the judgment and remand with instructions to enter a new order denying summary adjudication of the wage order causes of action and granting summary adjudication as to the non-wage-order causes of action.

http://www.courts.ca.gov/opinions/documents/D072521.PDF

E.V. v. Robinson (9th Cir. 16-16975 10/17/18) Sovereign Immunity/Court Marshall

The panel affirmed the district court’s dismissal on sovereign immunity grounds of an action brought by E.V., a civilian on a military base in Japan, seeking to enjoin the release of her mental health records.

E.V. filed this action against Judge Robinson in his official capacity as a military judge who presided over the court-martial of a service member accused of sexually assaulting E.V. Judge Robinson conducted an in camera review of E.V.’s mental health records and ordered that portions of those records be released to the court-martial parties pursuant to a qualified protective order.

The panel applied the framework set out in Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682 (1949), and held that sovereign immunity barred E.V.’s nonconstitutional claims for injunctive relief because those claims were considered to be against the government and the government had not waived its immunity. The panel further held that, under Larson, E.V.’s constitutional claims were considered to be against Judge Robinson as an individual and thus were not barred by sovereign immunity. The panel concluded, however, that E.V.’s constitutional claims must be dismissed on other grounds.

Specifically, the panel held: (1) the 1976 amendment to section 702 of the Administrative Procedure Act did not abrogate the Larson framework in suits where section 702’s waiver of sovereign immunity did not apply; (2) under Larson, suits for specific relief that were pleaded against federal officials in their official capacities were not per se barred by sovereign immunity; (3) E.V.’s non-constitutional claims were barred by sovereign immunity because they did not allege ultra vires action for purposes of the Larson framework, and the government had not waived its sovereign immunity over such claims; (4) E.V.’s Fourth Amendment allegations were not “against the government” under Larson and thus were not barred by sovereign immunity, but such allegations failed to state a claim under Fed. R. Civ. P. 12(b)(6); and (5) E.V.’s constitutional claim challenging Judge Robinson’s reliance on the “constitutionally required” evidentiary exception was similarly not barred by sovereign immunity, but failed for lack of redressability.

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/10/17/16-16975.pdf

Ruiz v. Musclewood Investment Properties (CA2/5 B280928 10/5/18) Disabled Persons Act

Plaintiff Oscar Ruiz is a disabled person who uses a guide dog. He alleged that defendants Edward Lopez and Musclewood Investment Properties, LLC (Musclewood) violated his rights under the Disabled Persons Act (Civ. Code, § 54 et seq.) (DPA), by allowing their guard dog to interfere with and attack his guide dog. Plaintiff contends the trial court erred by sustaining a demurrer to his cause of action under the DPA without leave to amend. We agree and reverse. We also reverse the order granting the motion to strike.

http://www.courts.ca.gov/opinions/documents/B280928.PDF

Certified Tire and Service Centers Wage and Hour Cases (CA4/1 D072265, filed 9/18/18, pub. ord. 10/4/18) Wage and Hour/Productivity Measures

This is an appeal in a certified wage and hour class action following a judgment after a bench trial in favor of defendants Certified Tire and Services Centers, Inc. (Certified Tire) and Barrett Business Services. Inc. (collectively defendants). Plaintiffs contend that Certified Tire violated the applicable minimum wage and rest period requirements by implementing a compensation program, which guaranteed its automotive technicians a specific hourly wage above the minimum wage for all hours worked during each pay period but also gave them the possibility of earning a higher hourly wage for all hours worked during each pay period based on certain productivity measures.

As we will explain, we conclude that the plaintiffs' arguments lack merit, and we accordingly affirm the judgment.

http://www.courts.ca.gov/opinions/documents/D072265.PDF

Martinez v. Eatlite One, Inc. (CA4/3 G055096 10/3/18) Employment Discrimination/998 Offer/Post-Judgment Costs and Attorneys’ Fees

Plaintiff Samantha Martinez sued defendant Eatlite One, Inc., for employment discrimination among other things. A jury found in favor of plaintiff on all of her claims and awarded $11,490 in damages. After the court entered judgment, both parties submitted competing memoranda of costs, and plaintiff filed a motion for attorney fees. The court awarded costs and attorney fees to plaintiff. Defendant contends the court erred because plaintiff did not obtain a judgment more favorable than defendant’s offer to compromise under Code of Civil Procedure section 998 (998 offer). We agree and reverse the portions of the postjudgment orders awarding post-offer costs and attorney fees to plaintiff.

http://www.courts.ca.gov/opinions/documents/G055096.PDF

New Prime Inc. v. Oliveira (US 17-340/1st Cir. 15-2364 Oral Argument Transcript 10/3/18) Arbitration/Independent Contractor Agreements

(1) Whether a dispute over applicability of the Federal Arbitration Act's Section 1 exemption is an arbitrability issue that must be resolved in arbitration pursuant to a valid delegation clause; and (2) whether the FAA's Section 1 exemption, which applies on its face only to “contracts of employment,” is inapplicable to independent contractor agreements.

Oral Argument Transcript

1st Circuit Opinion

Mount Lemmon Fire District v. Guido (US 17-587/9th Cir. 15-15030 Oral Argument Transcript 10/1/18) Age Discrimination in Employment Act

Whether, under the Age Discrimination in Employment Act, the same 20-employee minimum that applies to private employers also applies to political subdivisions of a state, as the U.S. Courts of Appeals for the 6th, 7th, 8th and 10th Circuits have held, or whether the ADEA applies instead to all state political subdivisions of any size, as the U.S. Court of Appeals for the 9th Circuit held in this case.

Oral Argument Transcript

9th Circuit Decision

Bills Signed by Governor, 2017-2018 Regular Legislative Session

AB 110 by the Committee on Budget – In-home supportive services provider wages: emergency caregiver payments for foster care: civil immigration detainees: recording fees.

AB 235 by Assemblymember Patrick O’Donnell (D-Long Beach) – Apprenticeship and preapprenticeship.
AB 403 by Assemblymember Melissa Melendez (R-Lake Elsinore) – Legislature: Legislative Employee Whistleblower Protection Act. [Urgency statute effective immediately]
AB 1565 by Assemblymember Tony Thurmond (D-Richmond) – Labor-related liabilities: direct contractor.
AB 1654 by Assemblymember Blanca Rubio (D-Baldwin Park) – Labor Code Private Attorneys General Act of 2004: construction industry.
AB 1888 by Assemblymember Rudy Salas (D-Bakersfield) – Peace officers: basic training requirements.
AB 1896 by Assemblymember Sabrina Cervantes (D-Riverside) – Sexual assault counselor-victim privilege.
AB 1912 by Assemblymember Freddie Rodriguez (D-Pomona) – Public employees’ retirement: joint powers agreements: liability.

AB 1976 by Assemblymember Monique Limόn (D-Goleta) – Employment: lactation accommodation.
AB 2012 by Assemblymember Jose Medina (D-Riverside) – School and community college employees: parental leave.
AB 2031 by Assemblymember Patrick O’Donnell (D-Long Beach) – Public contracts: school facility projects: bidding requirements.
AB 2052 by Assemblymember Rob Bonta (D-Alameda) – State Teachers’ Retirement System: contributions due to system: form.
AB 2055 by Assemblymember Marc Levine (D-Marin County) – Legislative ethics: harassment: education: lobbying.
AB 2076 by Assemblymember Freddie Rodriguez (D-Pomona) – County employees’ retirement: disability: date of retirement.
AB 2128 by Assemblymember Kevin Kiley (R-Rocklin) – School employees: dismissal or suspension: hearings: evidence.
AB 2138 by Assemblymember David Chiu (D-San Francisco) – Licensing boards: denial of application: revocation or suspension of licensure: criminal conviction.
AB 2160 by Assemblymember Tony Thurmond (D-Richmond) – Classified employees: school and community college districts: part-time playground positions.
AB 2184 by Assemblymember David Chiu (D-San Francisco) – Business licenses.
AB 2196 by Assemblymember Jim Cooper (D-Elk Grove) – Public employees’ retirement: service credit: payments.
AB 2197 by Assemblymember Frank Bigelow (R-O’Neals) – Custodial officers.
AB 2234 by Assemblymember Reggie Jones-Sawyer (D-Los Angeles) – School districts: employees: dismissal or suspension administrative proceedings: testimony of minor witnesses: pupil contact information.
AB 2249 by Assemblymember Ken Cooley (D-Rancho Cordova) – Public contracts: local agencies: alternative procedure.
AB 2282 by Assemblymember Susan Talamantes Eggman (D-Stockton) – Salary history information.
AB 2285 by Assemblymember Patrick O’Donnell (D-Long Beach) – Teacher credentialing: out-of-state prepared teachers: clear credential.
AB 2291 by Assemblymember David Chiu (D-San Francisco) – School safety: bullying [staff training].
AB 2310 by Assemblymember Cecilia Aguiar-Curry (D-Winters) – Public Employees’ Retirement System: contracting members.
AB 2327 by Assemblymember Bill Quirk (D-Hayward) – Peace officers: misconduct: employment.
AB 2329 by Assemblymember Jay Obernolte (R-Big Bear Lake) – Special districts: board of directors: compensation.
AB 2334 by Assemblymember Tony Thurmond (D-Richmond) – Occupational injuries and illness: employer reporting requirements: electronic submission.
AB 2338 by Assemblymember Marc Levine (D-Marin County) – Talent agencies: education and training.
AB 2349 by Assemblymember Phillip Chen (R-Diamond Bar) – Humane officers: authorization to carry a wooden club or baton.
AB 2358 by Assemblymember Wendy Carrillo (D-Los Angeles) – Apprenticeships: discrimination: prohibition.
AB 2388 by Assemblymember Kansen Chu (D-San Jose) – Employment: minors.
AB 2396 by Assemblymember Frank Bigelow (R-O’Neals) – Public contracting: conflicts of interest: exemption.
AB 2415 by Assemblymember Ian Calderon (D-Whittier) – Public Employees’ Retirement System: officers and directors: appointment and compensation.
AB 2420 by Assemblymember Sharon Quirk-Silva (D-Fullerton) – Workforce development: soft skills training.
AB 2455 by Assemblymember Ash Kalra (D-San Jose) – Home care aide registry: disclosure of personal contact information.
AB 2504 by Assemblymember Evan Low (D-Campbell) – Peace officer training: sexual orientation and gender identity.
AB 2505 by Assemblymember Miguel Santiago (D-Los Angeles) – California State University: budget oversight policies [hiring practices].
AB 2550 by Assemblymember Shirley Weber (D-San Diego) – Prisons: female inmates and male correctional officers.
AB 2587 by Assemblymember Marc Levine (D-Marin County) – Disability compensation: paid family leave.
AB 2605 by Assemblymember Mike Gipson (D-Carson) – Rest breaks: petroleum facilities: safety-sensitive positions. [Urgency statute effective immediately]
AB 2610 by Assemblymember Cecilia Aguiar-Curry (D-Winters) – Employees: meal periods.
AB 2696 by Assemblymember Freddie Rodriguez (D-Pomona) – Public Employees’ Retirement System: limited term appointments.
AB 2751 by Assemblymember Mark Stone (D-Scotts Valley) – Agricultural labor relations.
AB 2762 by Assemblymember Wendy Carrillo (D-Los Angeles) – Public contracts: disabled veteran business enterprises: local small business enterprises: social enterprises.
AB 2770 by Assemblymember Jacqui Irwin (D-Thousand Oaks) – Privileged communications: communications by former employer: sexual harassment.
AB 2777 by Assemblymember Tom Daly (D-Anaheim) – State employees: travel reimbursements.
AB 2785 by Assemblymember Blanca Rubio (D-Baldwin Park) – Student services: lactation accommodations.
AB 2800 by Assemblymember Kansen Chu (D-San Jose) – High school athletics: California High School Coaching Education and Training Program: heat illness.
AB 2830 by Assemblymember Eloise Gómez Reyes (D-Grand Terrace) – County agencies: interns and student assistants: hiring preference.
AB 2887 by Assemblymember Cecilia Aguiar-Curry (D-Winters) – Migrant farm labor centers.
AB 2915 by Assemblymember Anna Caballero (D-Salinas) – Workforce development boards: mutual disaster aid assistance: memorandum of understanding.
AB 2992 by Assemblymember Tom Daly (D-Anaheim) – Peace officer training: commercial sexual exploitation of children.
AB 3018 by Assemblymember Evan Low (D-Campbell) – State contracts: skilled and trained workforce.
AB 3082 by Assemblymember Lorena Gonzalez Fletcher (D-San Diego) – In-home supportive services.
AB 3109 by Assemblymember Mark Stone (D-Scotts Valley) – Contracts: waiver of right of petition or free speech.
AB 3126 by Assemblymember William Brough (R-Dana Point) – Contractors’ State License Law: cash deposit in lieu of a bond.
AB 3224 by Assemblymember Tony Thurmond (D-Richmond) – Public social services: county employees.
AB 3231 by Assemblymember Adam Gray (D-Merced) – Employment: public works: apprenticeship.
AB 3247 by the Committee on Judiciary – Arbitration: agreements: enforcement. [Impacts labor and employment cases.]
AB 3250 by the Committee on Judiciary – Civil law: civil rights.
SB 183 by Senator Ricardo Lara (D-Bell Gardens) – Educational equity: immigration status.
SB 224 by Senator Hannah-Beth Jackson (D-Santa Barbara) – Personal rights: civil liability and enforcement.
SB 419 by Senator Anthony Portantino (D-La Cañada Flintridge) – Legislature: Whistleblower protection and retaliation prevention. [urgency statute effective immediately]
SB 766 by Senator Bill Monning (D-Carmel) – International commercial arbitration: representation.
SB 785 by Senator Scott Wiener (D-San Francisco) – Evidence: immigration status.
SB 820 by Senator Connie Leyva (D-Chino) – Settlement agreements: confidentiality.
SB 826 by Senator Hannah-Beth Jackson (D-Santa Barbara) – Corporations: boards of directors. A signing message can be found here.
SB 840 by Senator Holly J. Mitchell (D-Los Angeles) – Budget Act of 2018 (includes budgets for DFEH and DIR)
SB 846 by the Committee on Budget and Fiscal Review – Employment.
SB 857 by the Committee on Budget and Fiscal Review – In-home supportive services: provider orientation.
SB 852 by the Committee on Budget and Fiscal Review – State public employment: memorandum of understanding: State Bargaining Unit 6 (California Correctional Peace Officers Association): approval
SB 866 by Committee on Budget and Fiscal Review - Public Sector Employment
SB 867 by the Committee on Budget and Fiscal Review – Legislative Counsel: workplace conduct services.
SB 873 by the Committee on Budget and Fiscal Review – State public employment: memorandum of understanding: approval: State Bargaining Units 9 and 10.
SB 877 by the Committee on Budget and Fiscal Review – State Government [prevailing wage & work stoppage].
SB 914 by Senator Bill Dodd (D-Napa) – Local agency contracts: construction manager at-risk construction contracts.
SB 942 by Senator Ricardo Lara (D-Bell Gardens) – State claims. [Impacts labor and employment claims against the state.]
SB 954 by Senator Bob Wieckowski (D-Fremont) – Mediation: confidentiality: disclosure.
SB 958 by Senator Bill Dodd (D-Napa) – Davis Joint Unified School District: special taxes: exemptions: teachers and district employees.
SB 964 by Senator Ben Allen (D-Santa Monica) – Public Employees’ Retirement Fund and Teachers’ Retirement Fund: investments: climate-related financial risk.
SB 970 by Senator Toni Atkins (D-San Diego) – Employment: human trafficking awareness.
SB 1022 by Senator Richard Pan (D-Sacramento) – Public Employees’ Retirement System: administration.
SB 1085 by Senator Nancy Skinner (D-Berkeley) – Public employees: leaves of absence: exclusive bargaining representative service.
SB 1113 by Senator Bill Monning (D-Carmel) – Mental health in the workplace: voluntary standards.
SB 1123 by Senator Hannah-Beth Jackson (D-Santa Barbara) – Disability compensation: paid family leave.
SB 1144 by Senator Bill Dodd (D-Napa) – Enhanced industrial disability leave: State Bargaining Unit 8.
SB 1165 by Senator Richard Pan (D-Sacramento) – State teachers’ retirement.
SB 1195 by Senator Anthony Portantino (D-La Cañada Flintridge) – Public Employees’ Medical and Hospital Care Act: health benefit plans.
SB 1252 by Senator Richard Pan (D-Sacramento) – Wages: records: inspection and copying.
SB 1262 by Senator Jim Beall (D-San Jose) – Construction Manager/General Contractor project delivery method: Department of Transportation.
SB 1270 by Senator Andy Vidak (R-Hanford) – County employees’ retirement: system personnel.
SB 1300 by Senator Hannah-Beth Jackson (D-Santa Barbara) – Unlawful employment practices: discrimination and harassment.
SB 1312 by Senator Hannah-Beth Jackson (D-Santa Barbara) – State public employees: sick leave: veterans with service-related disabilities.
SB 1331 by Senator Hannah-Beth Jackson (D-Santa Barbara) – Peace officers: domestic violence training.
SB 1343 by Senator Holly Mitchell (D-Los Angeles) – Employers: sexual harassment training: requirements.
SB 1375 by Senator Ed Hernandez (D-Azusa) – Health insurance: small employer groups.
SB 1383 by Senator Jean Fuller (R-Bakersfield) – Teacher credentialing: Committee of Credentials: membership.
SB 1402 by Senator Ricardo Lara (D-Bell Gardens) – Labor contracting: customer liability.
SB 1413 by Senator Jim Nielsen (R-Gerber) – Public employees’ retirement: pension prefunding.
SB 1421 by Senator Nancy Skinner (D-Berkeley) – Peace officers: release of records.
SB 1428 by Senator Mike McGuire (D-Healdsburg) – Minors: employment: work permits.
SB 1435 by Senator Bill Dodd (D-Napa) – State military: officer commissions.
SB 1442 by Senator Scott Wiener (D-San Francisco) – Community pharmacies: staffing.
SB 1465 by Senator Jerry Hill (D-San Mateo) – Contractors: civil actions: reporting.
SB 1500 by the Committee on Veterans Affairs – Prohibited discrimination against service members.
SB 1501 by the Committee on Veterans Affairs – Military and veterans: enlisted persons.
SB 1504 by the Committee on Public Employment and Retirement – Public employment: retirement savings plans, employment conditions, and training.

Bills Signed by Governor (9/30/18 third installment)

AB 2012 by Assemblymember Jose Medina (D-Riverside) – School and community college employees: parental leave.
AB 2138 by Assemblymember David Chiu (D-San Francisco) – Licensing boards: denial of application: revocation or suspension of licensure: criminal conviction.
AB 2234 by Assemblymember Reggie Jones-Sawyer (D-Los Angeles) – School districts: employees: dismissal or suspension administrative proceedings: testimony of minor witnesses: pupil contact information.
AB 2887 by Assemblymember Cecilia Aguiar-Curry (D-Winters) – Migrant farm labor centers.
SB 1195 by Senator Anthony Portantino (D-La Cañada Flintridge) – Public Employees’ Medical and Hospital Care Act: health benefit plans.

Bills Vetoed by Governor (9/30/18 third installment)

AB 1080 by Assemblymember Lorena Gonzalez Fletcher (D-San Diego) – Public contracts: bid preferences: employee health care coverage. A veto message can be found here.
AB 1597 by Assemblymember Adrin Nazarian (D-North Hollywood) – Public employee retirement systems: prohibited investments: Turkey. A veto message can be found here.
AB 1870 by Assemblymember Eloise Gómez Reyes (D-Grand Terrace) – Employment discrimination: limitation of actions. A veto message can be found here.
AB 2079 by Assemblymember Lorena Gonzalez Fletcher (D-San Diego) – Janitorial workers: sexual violence and harassment prevention training. A veto message can be found here.
AB 2732 by Assemblymember Lorena Gonzalez Fletcher (D-San Diego) – Employment: unfair immigration-related practices: janitorial workers: sexual violence and harassment prevention training. A veto message can be found here.
AB 2819 by Assemblymember Chris Holden (D-Pasadena) – University of California: study: high technology companies: employees. A veto message can be found here.
AB 3080 by Assemblymember Lorena Gonzalez Fletcher (D-San Diego) – Employment discrimination: enforcement. A veto message can be found here.
AB 3081 by Assemblymember Lorena Gonzalez Fletcher (D-San Diego) – Employment: sexual harassment. A veto message can be found here.
SB 1427 by Senator Jerry Hill (D-San Mateo) – Discrimination: veteran or military status. A veto message can be found here.

Bills Signed by Governor (9/30/18 second installment)

AB 686 by Assemblymember Miguel Santiago (D-Los Angeles) – Housing discrimination: affirmatively further fair housing.
AB 2055 by Assemblymember Marc Levine (D-Marin County) – Legislative ethics: harassment: education: lobbying.
AB 2327 by Assemblymember Bill Quirk (D-Hayward) – Peace officers: misconduct: employment.
AB 2338 by Assemblymember Marc Levine (D-Marin County) – Talent agencies: education and training.
AB 2504 by Assemblymember Evan Low (D-Campbell) – Peace officer training: sexual orientation and gender identity.
AB 2992 by Assemblymember Tom Daly (D-Anaheim) – Peace officer training: commercial sexual exploitation of children.
SB 1421 by Senator Nancy Skinner (D-Berkeley) – Peace officers: release of records.

Bills Vetoed by Governor (9/30/18 second installment)

AB 1231 by Assemblymember Shirley Weber (D-San Diego) – Public postsecondary education: California State University: support staff employees: merit salary adjustments. A veto message can be found here.
AB 1867 by Assemblymember Eloise Gómez Reyes (D-Grand Terrace) – Employment discrimination: sexual harassment: records. A veto message can be found here.
AB 1909 by Assemblymember Adrin Nazarian (D-North Hollywood) – In-home supportive services: written content translation. A veto message can be found here.
AB 1916 by Assemblymember Jim Cooper (D-Elk Grove) – Civil service: Personnel Classification Plan: salary equalization. A veto message can be found here.
AB 2153 by Assemblymember Tony Thurmond (D-Richmond) – Teachers: in-service training: lesbian, gay, bisexual, transgender, queer, and questioning pupil resources. A veto message can be found here.
AB 2361 by Assemblymember Shirley Weber (D-San Diego) – University of California: outsource contracts. A veto message can be found here.
AB 2713 by Assemblymember Freddie Rodriguez (D-Pomona) – Public employment: sexual harassment tracking. A veto message can be found here.
SB 656 by Senator John Moorlach (R-Costa Mesa) – Judges’ Retirement System II: deferred retirement. A veto message can be found here.
SB 937 by Senator Scott Wiener (D-San Francisco) – Lactation accommodation. A veto message can be found here.
SB 1124 by Senator Connie Leyva (D-Chino) – Public Employees’ Retirement System: collective bargaining agreements: disallowed compensation. A veto message can be found here.
SB 1223 by Senator Cathleen Galgiani (D-Stockton) – Construction industry: discrimination and harassment prevention policy. A veto message can be found here.

Bills Signed by Governor (9/30/18)

AB 1976 by Assemblymember Monique Limόn (D-Goleta) – Employment: lactation accommodation.
AB 2785 by Assemblymember Blanca Rubio (D-Baldwin Park) – Student services: lactation accommodations.
AB 3082 by Assemblymember Lorena Gonzalez Fletcher (D-San Diego) – In-home supportive services.
AB 3109 by Assemblymember Mark Stone (D-Scotts Valley) – Contracts: waiver of right of petition or free speech.
SB 224 by Senator Hannah-Beth Jackson (D-Santa Barbara) – Personal rights: civil liability and enforcement.
SB 419 by Senator Anthony Portantino (D-La Cañada Flintridge) – Legislature: Whistleblower protection and retaliation prevention. [Emergency measure effective immediately]
SB 820 by Senator Connie Leyva (D-Chino) – Settlement agreements: confidentiality.
SB 826 by Senator Hannah-Beth Jackson (D-Santa Barbara) – Corporations: boards of directors. A signing message can be found here.
SB 1300 by Senator Hannah-Beth Jackson (D-Santa Barbara) – Unlawful employment practices: discrimination and harassment.
SB 1343 by Senator Holly Mitchell (D-Los Angeles) – Employers: sexual harassment training: requirements.

Bills Signed by Governor (9/29/18)

AB 1912 by Assemblymember Freddie Rodriguez (D-Pomona) – Public employees’ retirement: joint powers agreements: liability.
AB 2415 by Assemblymember Ian Calderon (D-Whittier) – Public Employees’ Retirement System: officers and directors: appointment and compensation.
AB 2455 by Assemblymember Ash Kalra (D-San Jose) – Home care aide registry: disclosure of personal contact information.
AB 3126 by Assemblymember William Brough (R-Dana Point) – Contractors’ State License Law: cash deposit in lieu of a bond.

Bills Vetoed by Governor (9/29/18)

AB 2872 by Assemblymember Wendy Carrillo (D-Los Angeles) – In-home supportive services: peer-to-peer training. A veto message can be found here.
SB 906 by Senator Jim Beall (D-San Jose) – Mental health services and substance use disorder treatment: peer support specialist certification. A veto message can be found here.

Atempa v. Pedrazzani (CA4/1 D069001 9/28/18) Civil Penalties

Labor Code section 558, subdivision (a) provides that an employer "or other person acting on behalf of an employer" who violates or causes a violation of the state's applicable overtime laws shall be subject to a civil penalty. Similarly, section 1197.1, subdivision (a) provides that an employer "or other person acting either individually or as an officer, agent, or employee of another person" who pays or causes to pay an employee less than the state's applicable minimum wage shall be subject to a civil penalty. Following a trial, the superior court issued civil penalties against an individual defendant—namely, the corporate employer's owner, president, secretary, and director—as the "other person" who caused violations of these two statutes.

There is no issue on appeal as to the requirements for, or the showing made in support of, the finding that Pedrazzani qualified as a person other than the corporate employer who either violated the overtime pay and minimum wage laws or caused the statutory violations. Rather, on appeal the principal issue is whether, as a matter of substantive law, any individual other than the corporate employer can ever be found liable for the civil penalties associated with statutory violations in the payment of wages to a corporate employee where, as here, there is no allegation or finding that the corporate laws have been misused or abused for a wrongful or inequitable purpose. More specifically, we must determine whether section 558, subdivision (a) (§ 558(a)), and section 1197.1, subdivision (a) (§ 1197.1(a)) authorize recovery of the civil penalties for violation of specified overtime pay and minimum wage laws from a person other than the corporate employer that failed to pay the proper wages, where there is no allegation or contention that the alter ego doctrine applies or that there is any other basis on which to pierce the veil of the corporate employer.

As we will explain, the Labor and Workforce Development Agency (LWDA), which includes the Labor Commissioner, is statutorily authorized to recover the Labor Code's civil penalties at issue in this appeal from the individual officer/agent of the corporate employer. (§§ 558(a), 1197.1(a).) As we will further explain, the Labor Code Private Attorneys General Act of 2004 (PAGA) (§ 2698 et seq.) authorizes an aggrieved employee to recover these civil penalties in lieu of the LWDA (§ 2699, subd. (a)), and Pedrazzani does not argue that the trial court erred by applying this statute to the plaintiffs' claims for the civil penalties here. However, as to the awards of civil penalties under section 558(a), the parties agree that the court did not order the penalties distributed pursuant to the statutory scheme.

We will also conclude that, under the showing here, Pedrazzani did not meet his burden of establishing reversible error in the superior court's awards to the plaintiff employees of attorney fees, costs, and postjudgment interest from the individual officer/agent of the corporate employer.

Accordingly, we will modify that portion of the judgment which awards certain civil penalties under section 558(a) and affirm the judgment as modified; and we will affirm a postjudgment order which set the amount of attorney fees for which Pedrazzani is liable.

http://www.courts.ca.gov/opinions/documents/D069001.PDF

Payton v. CSI Electrical Contractors (CA2/2 B284065 9/28/18) Rest and Travel Time/Class Certification

James Payton appeals from an order denying class certification. Payton filed this putative class action alleging wage and hour violations against Respondents CSI Electrical Contractors, Inc. (CSI) and First Solar, Inc. (First Solar) (collectively “Respondents”). The claims arose from construction work on a solar farm project in San Luis Obispo County.

Payton sought certification of two classes. The first, the Rest Period Class, concerned persons affected by Respondents’ alleged practice of “tacking” the required 10-minute afternoon rest break onto the end of the 30-minute lunch break, resulting in a 40-minute mid-day break rather than a separate mid-afternoon break. The second, the Travel Pay Class, concerned persons who were not paid for time spent commuting in company-provided buses to the construction site, allegedly in violation of union contracts.

The trial court denied certification of both classes. With respect to the Rest Period Class, the trial court found that a class action was inappropriate and unworkable in light of the individual issues arising from evidence that particular working groups actually received regular afternoon breaks. With respect to both classes, the trial court found that Payton’s trial plan was inadequate and that he was not a suitable class representative. The trial court based this finding on Payton’s prior criminal convictions and the fact that he is also pursuing a personal wrongful discharge claim. The trial court denied Payton’s request to look for a new class representative in light of the age of the case and the other problems with the motion for class certification.

We affirm. Substantial evidence supports the trial court’s conclusion that individual questions would predominate in determining which class members actually have a claim for missed rest breaks. The trial court also acted within its discretion in finding that Payton is not an adequate class representative, and in denying leave to substitute another representative in light of the age of the case and the futility of doing so.

http://www.courts.ca.gov/opinions/documents/B284065.PDF

Skidgel v. California Unemployment Ins. Appeals Bd. (2018) 24 Cal.App.5th 574, mod. 25 Cal.App.5th 277a (S250149/A151224 rev. granted 9/26/18) In-Home Support Services Workers

Petition for review after the Court of Appeal affirmed the judgment in a civil action. This case presents the following issue: Are In Home Supportive Services workers (Welf. & Inst. Code, § 12300 et seq.) who are providers for a spouse or a child eligible for unemployment insurance benefits? Votes: Cantil-Sakauye, C.J., Chin, Corrigan, Liu, Cuéllar and Kruger, JJ.Review granted/brief due.

Docket

Court of Appeal Opinion

Bills Signed by Governor (9/28/18)

AB 2830 by Assemblymember Eloise Gómez Reyes (D-Grand Terrace) – County agencies: interns and student assistants: hiring preference.
AB 3018 by Assemblymember Evan Low (D-Campbell) – State contracts: skilled and trained workforce.
SB 1085 by Senator Nancy Skinner (D-Berkeley) – Public employees: leaves of absence: exclusive bargaining representative service.
SB 1144 by Senator Bill Dodd (D-Napa) – Enhanced industrial disability leave: State Bargaining Unit 8.
SB 1504 by the Committee on Public Employment and Retirement – Public employment: retirement savings plans, employment conditions, and training.

Bills Vetoed by Governor (9/2818)

AB 2305 by Assemblymember Freddie Rodriguez (D-Pomona) – Public employment: collective bargaining: peace officers. A veto message can be found here.
AB 3145 by Assemblymember Rudy Salas (D-Bakersfield) – Disability insurance: state employees. A veto message can be found here.

Bills Signed by Governor (9/27/18)

AB 2128 by Assemblymember Kevin Kiley (R-Rocklin) – School employees: dismissal or suspension: hearings: evidence.
SB 970 by Senator Toni Atkins (D-San Diego) – Employment: human trafficking awareness.
SB 1123 by Senator Hannah-Beth Jackson (D-Santa Barbara) – Disability compensation: paid family leave.

Bills Vetoed by Governor (9/27/18)

AB 2963 by Assemblymember Ash Kalra (D-San Jose) – Worker safety: blood lead levels: reporting. A veto message can be found here.

Bills Signed by Governor (9/26/18)

AB 2696 by Assemblymember Freddie Rodriguez (D-Pomona) – Public Employees’ Retirement System: limited term appointments.
AB 3250 by the Committee on Judiciary – Civil law: civil rights.
SB 183 by Senator Ricardo Lara (D-Bell Gardens) – Educational equity: immigration status.

Bills Vetoed by Governor (9/26/18)

AB 2026 by Assemblymember Tom Lackey (R-Palmdale) – Used vehicle salespersons. A veto message can be found here.
AB 2547 by Assemblymember Kevin McCarty (D-Sacramento) – Teachers: Teacher Residency Grant Program: Local Solutions Grant Program: evaluation. A veto message can be found here.

San Francisco Police Officers' Assn. v. San Francisco Police Com. (CA1/2 A151654 9/26/18) Arbitration

The San Francisco Police Officers’ Association (Association) appeals from the trial court’s order denying its petition to compel arbitration brought against the San Francisco Police Commission (Commission); the City and County of San Francisco (the City); and Toney Chaplin, in his official capacity as interim Chief of Police of the San Francisco Police Department (collectively, respondents). The action arose from the City’s denial of the Association’s grievance challenging the City’s refusal to further meet and confer before adopting and implementing a revised use of force policy for the San Francisco Police Department (SFPD). On appeal, the Association contends the court improperly (1) found that its challenge to the City’s denial of its grievance related to the revised use of force policy was not subject to arbitration under the Memorandum of Understanding (MOU) between the City and the Association, and (2) denied the petition to compel arbitration based on the substantive merit of the underlying grievance.

Because we conclude the trial court properly found that the parties had not agreed to subject the City’s determinations regarding the revised use of force policy to arbitration, we shall affirm the court’s order denying the Association’s petition to compel arbitration.

http://www.courts.ca.gov/opinions/documents/A151654.PDF

American Airlines v. Mawhinney (9th Cir. 16-56638, 16-56643 9/26/18) Retaliation/Arbitration

In two related appeals concerning claims for whistleblowing retaliation under the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century, the panel denied motions to dismiss the appeals, affirmed the district court’s order compelling arbitration of the plaintiff’s claim against his employer, and reversed its order compelling arbitration of the plaintiff’s claim against his union.

Denying the motions to dismiss, the panel held that it had jurisdiction over the appeals because the district court’s orders compelling arbitration were no longer interlocutory once the district court dismissed the actions and entered judgment.

Affirming as to the AIR21 retaliation claim against the employer, the panel held that the employer did not waive its right to arbitrate by waiting to move to compel until after an agency investigation into its conduct was complete. The panel held that private AIR21 retaliation claims are not inherently nonarbitrable. The panel also held that arbitration was not barred by the state statute of limitations or by the Federal Arbitration Act.

Reversing as to the retaliation claim against the union, the panel concluded that the union was not a party to the arbitration provision at issue and was not otherwise entitled to enforce the provision under agency law.

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/26/16-56638.pdf

Sumner v. Simpson University (CA3 C077302 9/25/18) Wrongful Termination/Ministerial Exception

“The First Amendment guarantees to a religious institution the right to decide matters affecting its ministers’ employment, free from the scrutiny and second-guessing of the civil courts.” (Schmoll v. Chapman University (1999) 70 Cal.App.4th 1434, 1436 (Schmoll).) The so-called ministerial exception is “a ‘nonstatutory, constitutionally compelled’ exception to federal civil rights legislation. [Citation.] The idea is that the law should not be construed to govern the relationship of a church and its ministers.” (Hope Internat. University v. Superior Court (2004) 119 Cal.App.4th 719, 734.) The Supreme Court has concluded that the ministerial exception bars a minister’s employment discrimination suit based on the church’s decision to fire her. (Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC (2012) 565 U.S. 171, 196 [181 L.Ed.2d 650] (Hosanna-Tabor)) The Supreme Court has not decided whether the exception bars a breach of contract or tort action. (Ibid.) That is the issue we decide in this case.

Plaintiff Sarah Sumner was the dean of A.W. Tozer Theological Seminary (Tozer Seminary), which is part of defendant Simpson University in Redding, California. Although Sumner had a written employment agreement, her employment was terminated by Robin Dummer in his capacity as acting provost of the university on the ground Sumner was insubordinate.

In response to Sumner’s complaint alleging breach of contract, defamation, invasion of privacy, and intentional infliction of emotional distress, defendants moved for summary judgment on the ground Sumner’s employment was within the ministerial exception, an affirmative defense, and that as a result judicial review of her employment-related dispute is precluded by the First Amendment. The trial court agreed, and granted summary judgment.

Sumner argues the ministerial exception was not applicable because she was not a minister, and the facts were in dispute as to whether Simpson University was a religious organization. She argues that even assuming the ministerial exception is applicable, it does not preclude enforcement of her contract and tort claims.

As defendants who are moving for summary judgment based on the assertion of an affirmative defense, defendants had the burden to show that undisputed facts supported each element of the affirmative defense. (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 467-468; Hosanna-Tabor, supra, 565 U.S. at p. 195, fn. 4.) Hosanna-Tabor did not set forth the elements of the ministerial exception, but we derive from the cases that the following elements are required to successfully assert the ministerial exception as a defense to a contract claim. First, the employer must be a religious group. (Id. at pp. 176-177.) Second, the employee making the claim must qualify as a minister. (Ibid.) Third, the contract claim must be one that turns on an ecclesiastical inquiry or “excessive[ly] entangle[s]” the court in religious matters. (Petruska v. Gannon Univ. (3d Cir. 2006) 462 F.3d 294, 312.) We shall conclude the trial court correctly concluded that Simpson University is a religious organization and that Sumner is a minister for purposes of the ministerial exception, but that her contract cause of action is not foreclosed by the ministerial exception. Defendants have failed to show that resolution of Sumner’s contract claim would excessively entangle the court in religious matters. However, her tort causes of action are part and parcel of the actions involved in her termination, and are therefore barred by the ministerial exception.

http://www.courts.ca.gov/opinions/documents/C077302.PDF

O’Connor v. Uber (9th Cir. 14-16078, 15-17420/15-17532, 15-17422/15-17534, 15-17475, 15-17533, 16-15000, 16-15001, 16-15035, 16-15595 9/25/18) Misclassification/Class Certification/Arbitration

The panel reversed the district court’s denial of Uber Technologies, Inc.’s motions to compel arbitration, reversed the district court’s class certification orders, and reversed as moot and without foundation the district court’s Fed. R. Civ. P. 23(d) orders in several putative class actions brought by current and former Uber drivers alleging violations of various federal and state statutes arising from Uber’s classification of drivers as independent contractors rather than employees.

In Mohamed v. Uber Technologies, Inc., 848 F.3d 1201, 1206 (9th Cir. 2016), the panel previously considered and reversed the district court’s orders denying Uber’s motion to compel arbitration.

The panel rejected plaintiffs’ additional arguments in this current appeal alleging that the arbitration agreements were unenforceable. First, the plaintiffs argued that the lead plaintiffs in the O’Connor case constructively opted out of arbitration on behalf of the entire class. The panel held this was unpersuasive because nothing gave the O’Connor lead plaintiffs the authority to take that action on behalf of and binding other drivers, and the decision in Bickerstaff v. Suntrust Bank, 788 S.E.2d 787 (Ga. 2016), was not instructive where it relied exclusively on state law grounds and did not discuss the Federal Arbitration Act. Second, the plaintiffs argued that the arbitration agreements were unenforceable because they contained class action waivers that violated the National Labor Relations Act of 1935. The panel held that this argument was rejected by the Supreme Court in Epic Systems Corp. v. Lewis, 138 S. Ct. 1612 (2018).

The panel held that it had jurisdiction to review both the original class certification order and the December 9, 2015 certification order. The panel held that in the wake of the decision in Mohamed, the class certification orders must be reversed because they were premised upon the district court’s conclusion that the arbitration agreements were not enforceable. The question whether those agreements were enforceable was not properly for the district court to answer because the question of arbitrability was designated to the arbitrator. The panel held that remand for further proceedings was appropriate, and leaving the existing class certification orders in place in the meantime was not appropriate.

The panel held that the district court’s Fed. R. Civ. P. 23(d) orders must be reversed as moot and without foundation in light of the panel’s reversal of the district court’s orders denying the motions to compel arbitration and certifying the class.

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/25/14-16078.pdf

Bills Signed by Governor (9/23/18)

AB 1749 by Assemblymember Tom Daly (D-Anaheim) – Workers’ compensation: off-duty peace officer.
AB 2046 by Assemblymember Tom Daly (D-Anaheim) – Workers’ compensation insurance fraud reporting.
AB 2751 by Assemblymember Mark Stone (D-Scotts Valley) – Agricultural labor relations.
AB 2777 by Assemblymember Tom Daly (D-Anaheim) – State employees: travel reimbursements.
AB 2915 by Assemblymember Anna Caballero (D-Salinas) – Workforce development boards: mutual disaster aid assistance: memorandum of understanding.
SB 880 by Senator Richard Pan (D-Sacramento) – Workers’ compensation.
SB 964 by Senator Ben Allen (D-Santa Monica) – Public Employees’ Retirement Fund and Teachers’ Retirement Fund: investments: climate-related financial risk.
SB 1022 by Senator Richard Pan (D-Sacramento) – Public Employees’ Retirement System: administration.

Bills Vetoed by Governor (9/23/18)

AB 479 by Assemblymember Lorena Gonzalez Fletcher (D-San Diego) – Workers’ compensation: permanent disability apportionment. A veto message can be found here.
AB 553 by Assemblymember Tom Daly (D-Anaheim) – Workers’ compensation: return-to-work program. A veto message can be found here.
AB 1697 by the Committee on Insurance – Workers’ compensation. A veto message can be found here.
AB 2496 by Assemblymember Lorena Gonzalez Fletcher (D-San Diego) – Janitorial employees: employment status: burden of proof. A veto message can be found here.
SB 899 by Senator Richard Pan (D-Sacramento) – Workers’ compensation. A veto message can be found here.

Bills Signed by Governor (9/22/18)

AB 235 by Assemblymember Patrick O’Donnell (D-Long Beach) – Apprenticeship and preapprenticeship.
AB 2358 by Assemblymember Wendy Carrillo (D-Los Angeles) – Apprenticeships: discrimination: prohibition.
AB 3002 by Assemblymember Tim Grayson (D-Concord) – Disability access requirements: information.
AB 3231 by Assemblymember Adam Gray (D-Merced) – Employment: public works: apprenticeship.
SB 1375 by Senator Ed Hernandez (D-Azusa) – Health insurance: small employer groups.
SB 1376 by Senator Jerry Hill (D-San Mateo) – Transportation network companies: accessibility for persons with disabilities.
SB 1402 by Senator Ricardo Lara (D-Bell Gardens) – Labor contracting: customer liability.

Bills Vetoed by Governor (9/22/18)

AB 2314 by Assemblymember Philip Ting (D-San Francisco) – Private employment: domestic workers. A veto message can be found here.
AB 2749 by Assemblymember Rob Bonta (D-Alameda) – State agencies: state entities: Internet Web site accessibility: standards: mobile-friendly: requirements. A veto message can be found here.
AB 3179 by Assemblymember Rudy Salas (D-Bakersfield) – State agencies: bilingual services. A veto message can be found here.

Bills Signed by Governor (9/21/18)

AB 2762 by Assemblymember Wendy Carrillo (D-Los Angeles) – Public contracts: disabled veteran business enterprises: local small business enterprises: social enterprises..
SB 1413 by Senator Jim Nielsen (R-Gerber) – Public employees’ retirement: pension prefunding.

Ayon v. Esquire Deposition Solutions (CA4/3 G054578 9/21/18) Respondeat Superior/Cell Phone Use While Driving

Plaintiff Jessica Ayon appeals from an adverse summary judgment in a personal injury case. Late one evening in May 2013, Brittini Zuppardo was driving home from her boyfriend’s house while talking on the phone with Michelle Halkett. Zuppardo was defendant Esquire Deposition Solution’s (Esquire) scheduling manager; Halkett was a court reporter for Esquire. Zuppardo’s vehicle struck plaintiff, who suffered significant injuries. The issue here is whether Esquire can be held liable under a theory of respondeat superior.

In an interview immediately following the accident, Zuppardo reported to a police officer that she had been speaking with one of her court reporters, Halkett, about Halkett’s son’s prom and other family related issues. In their depositions, both Zuppardo and Halkett testified they were good friends and were talking about family matters on the evening of the accident. It was not within Zuppardo’s job description to call court reporters after hours for work purposes, though on rare occasions she had done so.

To establish respondeat superior liability, plaintiff relies heavily on the following piece of evidence: at her deposition, Zuppardo testified she spoke on her cell phone with Halkett weekly, if not daily. Zuppardo’s cell phone records, however, showed no calls between her and Halkett’s cell phone for the prior six months, and only one text message. Plaintiff contends a jury could infer from this that the two did not, in fact, have a close friendship, and that the call concerned work matters, not personal matters.

Code of Civil Procedure section 437c, subdivision (e), provides that “summary judgment shall not be denied on grounds of credibility,” with certain exceptions we discuss below, but which we conclude do not apply. Ultimately, plaintiff has no evidence that Zuppardo was operating within the scope of her employment at the time of the accident. Plaintiff attacks Zuppardo’s and Halkett’s credibility. But that is not enough, and thus the court correctly granted summary judgment.

http://www.courts.ca.gov/opinions/documents/G054578.PDF

Moss Bros. Toy, Inc. v. Ruiz (CA4/2 E067240 9/20/18) Wage & Hour Class Action/Arbitration/Anti-SLAPP

Plaintiff and appellant, Moss Bros. Toy, Inc. (MBT), appeals from the order granting defendant and respondent, Ernesto Ruiz’s, anti-SLAPP motion, or special motion to strike MBT’s entire first amended complaint (FAC) against Ruiz. (§ 425.16, subd. (i).) The FAC alleges MBT is Ruiz’s former employer and that Ruiz breached two March 2010 arbitration agreements with MBT by failing to submit Ruiz’s employment-related claims against MBT to arbitration, and by instead filing a lawsuit for his employment-related claims against MBT’s agent, Moss Bros. Auto Group, Inc. (MBAG), in San Bernardino County Superior Court case No. CIVDS2107201. In this appeal, MBT claims the anti-SLAPP motion was erroneously granted because the FAC is not based on protected activity (§ 425.16, subd. (e)), but is instead based on Ruiz’s breach of his March 2010 arbitration agreements with MBT. MBT also claims it demonstrated a probability of prevailing on its claims alleged in the FAC.

We affirm the order granting the anti-SLAPP motion. In the published portion of this opinion, we explain that the entire FAC is based on protected activity, namely, Ruiz’s act of filing his lawsuit against MBAG for his employment-related claims in case No. CIVDS2107201—even though the FAC is also based on Ruiz’s alleged breach of the 2010 arbitration agreements. In the unpublished portion of this opinion, we explain that MBT failed to demonstrate a probability of prevailing on its claims against Ruiz as alleged in the FAC.

http://www.courts.ca.gov/opinions/documents/E067240.PDF

Allied Concrete and Supply v. IBT (9th Cir. 16-56546, 17-55343, 17-55503 9/20/18) Prevailing Wage/FAAAA Preemption

The panel affirmed in part and reversed in part the district court’s judgment and remanded in an action brought by a group of ready-mix concrete suppliers, challenging California Labor Code § 1720.9, which amended California’s prevailing wage laws to include delivery drivers of ready-mix concrete.

The district court denied a motion of the International Brotherhood of Teamsters (“IBT”) to intervene on the side of the State to defend the law, and it granted the State’s motion to dismiss plaintiffs’ claim that § 1720.9 was preempted by the Federal Aviation Administration Authorization Act. The district court granted summary judgment in favor of plaintiffs on their claim that § 1720.9 violated the Equal Protection Clause of the Fourteenth Amendment, ruling that, under the rational basis test, there were no legally relevant differences between ready-mix drivers and other delivery drivers; therefore, the State did not have any legitimate justification for singling out the ready-mix suppliers.

Reversing the district court’s grant of summary judgment in favor of plaintiffs on their equal protection claim, the panel concluded that the district court wrongly disregarded as irrelevant certain differences between ready-mix drivers and other drivers that the legislature could have relied on in extending the prevailing wage law. The panel explained that the California Supreme Court has stated that prevailing wage laws further goals such as: (1) generally protecting employees on public works projects, (2) benefitting the public through the superior efficiency of well-paid employees, and (3) permitting union contractors to compete with nonunion contractors. The panel held that the legislature could have rationally concluded that extending the prevailing wage law to ready-mix drivers ahead of other drivers would further these respective goals because ready-mix drivers: (1) are more integrated into the construction process than other materials drivers and should be paid accordingly; (2) are more skilled than other drivers and provide a material that is more important to public works projects than other materials such that paying the prevailing wage will attract superior drivers and improve public works; and (3) are more likely to be unionized and, therefore, vulnerable to underbidding.

Reversing the district court’s denial of IBT’s motion to intervene, the panel held that the union had a significantly protectable interest at stake in the case. The panel concluded that IBT’s appeal was not moot in light of the reversal on the equal protection claim.

The panel affirmed the district court’s dismissal of plaintiffs’ claim of FAAAA preemption because the prevailing wage law was not related to prices, routes, and services within the meaning of the FAAAA’s preemption clause.

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/20/16-56546.pdf

Bills Signed by Governor (9/20/18)

AB 2605 by Assemblymember Mike Gipson (D-Carson) – Rest breaks: petroleum facilities: safety-sensitive positions. [Note: Urgency statute to take effect immediately]
SB 958 by Senator Bill Dodd (D-Napa) – Davis Joint Unified School District: special taxes: exemptions: teachers and district employees.

Bills Vetoed by Governor (9/20/18)

AB 310 by Assemblymember Jose Medina (D-Riverside) – Part-time faculty office hours. A veto message can be found here.
AB 2168 by Assemblymember Tony Thurmond (D-Richmond) – Special education: teachers: grant program. A veto message can be found here.
AB 2691 by Assemblymember Reggie Jones-Sawyer (D-Los Angeles) – Pupil health: pupil and school staff trauma: Trauma-Informed Schools Initiative. A veto message can be found here.

PHYLLIS W. CHENG, ESQ .

CALIFORNIA CASE LAW ALERT