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Reverse chronological e-mail alerts prepared pro bono for the California Lawyers Association (formerly State Bar of California) Labor & Employment Law Section 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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Severson & Werson v. Sephery-Fard (CA6 H045161 7/24/19) Workplace Violence


The trial court issued a workplace violence restraining order under Code of Civil Procedure section 527.8 against appellant Fareed Sepehry-Fard on four days’ notice without an accompanying order shortening time.  We conclude the five days’ notice requirement of section 527.8 is jurisdictional and renders the court’s resulting order void in the absence of the party who did not receive the five days’ notice.  We will reverse the order accordingly.




Hollingsworth v. Superior Court (CA2/4 B297658 7/24/19) Exclusive Jurisdiction/Workers’ Compensation


“Pursuant to constitutional mandate, the Legislature has vested the Workers’ Compensation Appeals Board (WCAB) with exclusive jurisdiction over claims for workers’ compensation benefits.  (Cal. Const., art. XIV, § 4, Lab. Code, § 5300.)”  (La Jolla Beach & Tennis Club, Inc. v. Industrial Indemnity Co. (1994) 9 Cal.4th 27, 35.)  Thus, in an action involving a worker injured during his or her employment, “the superior court and the WCAB . . . ‘do not have concurrent jurisdiction over the whole of the controversy, and one of them will be without jurisdiction to grant any relief whatsoever, depending upon whether or not the injuries were . . . covered by the workmen’s compensation laws.’”  (Ibid.)  “The only point of concurrent jurisdiction of the two tribunals is jurisdiction to determine jurisdiction; jurisdiction once determined is exclusive, not concurrent.”  (Ibid.)


This case presents the question of which tribunal—the superior court or the WCAB—had jurisdiction to determine which tribunal had exclusive jurisdiction.  The Supreme Court has made clear that when a civil action and a workers’ compensation proceeding are concurrently pending, “the tribunal first assuming jurisdiction” should determine exclusive jurisdiction.  (Scott v. Industrial Acc. Commission (1956) 46 Cal.2d 76, 81 (Scott).)  Here, the superior court exercised jurisdiction first, so the court had jurisdiction to decide which tribunal has exclusive jurisdiction.  The court erred by staying the civil case to allow the WCAB to decide that issue, and the WCAB erred by proceeding without deference to the superior court.  We therefore grant plaintiffs’ petition.



Doe v. Occidental College (CA2/3 B282292, filed 7/2/19, pub. ord. 7/24/19) Title IX Sexual Assault


John Doe (Doe) appeals from the judgment of the trial court denying his petition for writ of mandate.  (Code Civ. Proc., § 1094.5.)  He sought to set aside his expulsion from Occidental College after an outside adjudicator found he had sexually assaulted and engaged in non-consensual sexual contact with Jane Roe (Roe), another student.  Doe contends he was denied a fair hearing and the decision was not supported by substantial evidence.  For the reasons given below, we affirm the judgment.




Wilson v. Cable News Network, Inc. (SC S239686 per curiam 7/22/19) Anti-SLAPP/Employment Discrimination and Harassment


Code of Civil Procedure section 425.16 (section 425.16), commonly known as the anti-SLAPP statute, allows defendants to request early judicial screening of legal claims targeting free speech or petitioning activities.  We consider two questions concerning the application of the anti-SLAPP statute to certain claims arising in the employment context.


The primary question before us concerns the statute’s application to employment discrimination and retaliation claims.  Here, a journalist alleges that his employer denied him promotions, gave him unfavorable assignments, and ultimately fired him for unlawful discriminatory and retaliatory reasons.  Some courts of appeal, including the court in this case, have concluded the anti-SLAPP statute cannot be used to screen claims alleging discriminatory or retaliatory employment actions.  We hold otherwise.  The statute contains no exception for discrimination or retaliation claims, and in some cases the actions a plaintiff alleges in support of his or her claim may qualify as protected speech or petitioning activity under section 425.16.  In such cases, the plaintiff’s allegations about the defendant’s invidious motives will not shield the claim from the same preliminary screening for minimal merit that would apply to any other claim arising from protected activity.  The defendant employer in this case has shown plaintiff’s claims arise in limited part—though not in whole—from protected activity.  The employer is therefore entitled to a determination of whether those limited portions of plaintiff’s claims have sufficient potential merit to proceed.


The second question concerns the application of the anti-SLAPP statute to the journalist’s claim that defendant defamed him by privately discussing the alleged reasons for his termination with potential employers and others.  We conclude that this claim need not be screened for merit because these privately communicated remarks were not made in connection with any issue of public significance, as the statute requires.  (See § 425.16, subds. (a), (b)(1), (e)(4).)  We thus affirm in part, reverse in part, and remand for further proceedings.



Vazquez v. Jan-Pro Franchising Int’l (9th Cir. 17-16096 rehg. granted 7/22/19) Retroactive ABC Test/Franchises


Defendant-Appellee’s Petition for Panel Rehearing (Dkt. 93) is GRANTED. The opinion in the above-captioned matter filed on May 2, 2019, and published at 923 F.3d 575, is WITHDRAWN.


A revised disposition and an order certifying to the California Supreme Court the question of whether Dynamex Ops. W. Inc. v. Superior Court, 416 P.3d 1 (Cal. 2018), applies retroactively will be filed in due course.




Brown v. City of Sacramento (CA3 C082826 7/17/19) FEHA/Statutes of Limitations/Exhaustion of Administrative Remedies


Plaintiff Wendell Brown sued his employer, the City of Sacramento (City), for racial discrimination and retaliation in violation of the California Fair Employment and Housing Act (FEHA).  (Gov. Code, § 12900 et seq.)  A jury returned a verdict in Brown’s favor.  The City moved for judgment notwithstanding the verdict and a new trial.  The trial court granted the motion for judgment notwithstanding the verdict in part, finding that Brown failed to exhaust administrative remedies with respect to some of the acts found to be retaliatory.  The trial court denied the motion with respect to other acts and effectively denied the motion for a new trial.   


The City appeals from the order partially denying the motion for judgment notwithstanding the verdict, arguing the remaining retaliation and discrimination claims are time-barred and barred for failure to exhaust administrative remedies.  The City also appeals from the order partially denying the motion for a new trial, arguing that juror misconduct deprived the City of a fair trial, and the trial court prejudicially erred in admitting evidence of the purportedly unexhausted and time-barred claims.  Finding no error, we affirm.




Ortiz v. Dameron Hospital Assn. (CA3 C081091, filed 6/20/19, pub. ord. 7/17/19) FEHA Discrimination, Harassment, Retaliation


Plaintiff Nancy Ortiz brings this employment discrimination case against her former employer Dameron Hospital Association (Dameron) and former supervisor Doreen Alvarez (collectively defendants), alleging that she was discriminated against and subjected to harassment based on her national origin (Filipino) and age (over 40) at the hands of Alvarez, and that Dameron failed to take action to prevent it in violation of the California Fair Employment and Housing Act (the FEHA) (Gov. Code, § 12900 et seq.). Ortiz claims that she was forced to resign due to the intolerable working conditions created by Alvarez in order to accomplish Alvarez’s goal of getting rid of older, Filipino employees, like Ortiz, who, in Alvarez’s words, “could not speak English,” had “been there too long,” and “ma[d]e too much money.”  The complaint asserts causes of action for discrimination (§ 12940, subd. (a); against Dameron), harassment (§ 12940, subd. (j); against Dameron and Alvarez), retaliation (§ 12940, subd. (h); against Dameron), failure to take all reasonable steps necessary to prevent discrimination and harassment from occurring (§ 12940, subd. (k); against Dameron), and injunctive relief (Code Civ. Proc., § 526; against Dameron).  The complaint also prays for punitive damages.


Defendants moved for summary judgment, or in the alternative summary adjudication.  The trial court granted defendants’ motion for summary judgment.  The trial court found that Ortiz could not make a prima facie showing of discrimination because she cannot show that she suffered an adverse employment action, and could not make a prima facie showing of harassment because she cannot show that any of the complained of conduct was based on her national origin or age. The trial court determined that the remaining causes of action as well as the claims for injunctive relief and punitive damages were derivative of the discrimination and harassment causes of action and thus had no merit.


Ortiz appeals, contending that there are triable issues of material fact as to each of her causes of action, except retaliation, and her claims for injunctive relief and punitive damages.  We agree in part.  We will reverse the judgment and direct the trial court to vacate its order granting summary judgment and enter a new order granting summary adjudication of Ortiz’s retaliation cause of action and request for punitive damages as to Dameron but denying summary adjudication of her discrimination, harassment, and failure to take necessary steps to prevent discrimination and harassment causes of action, her claim for injunctive relief, and her request for punitive damages as to Alvarez.




Galvan v. Dameron Hospital Assn.  (CA3 C081092, filed 6/20/19, pub. ord. 7/17/19) FEHA Discrimination, Harassment, Retaliation


Plaintiff Shirley Galvan brings this employment discrimination case against her former employer Dameron Hospital Association (Dameron) and former supervisor Doreen Alvarez (collectively defendants), alleging that she was discriminated against and subjected to harassment based on her national origin (Filipino) and age (54) at the hands of Alvarez, and that Dameron failed to take action to prevent it in violation of the California Fair Employment and Housing Act (the FEHA) (Gov. Code, § 12900 et seq.).  Galvan claims that she was forced to take a medical leave of absence and ultimately quit due to the intolerable working conditions created by Alvarez in order to accomplish Alvarez’s goal of getting rid of older, Filipino employees, like Galvan, who, in Alvarez’s words, “could not speak English,” had “been there too long,” and “ma[d]e too much money.”  The operative second amended complaint asserts causes of action for discrimination (§ 12940, subd. (a); against Dameron), harassment (§ 12940, subd. (j); against Dameron and Alvarez), failure to take all reasonable steps to prevent discrimination and harassment (§ 12940, subd. (k); against Dameron), wrongful termination in violation of public policy (against Dameron), declaratory relief (discrimination) (against Dameron), and injunctive relief (Code Civ. Proc., § 526; against Dameron). The complaint also prays for punitive damages.


Defendants moved for summary judgment, or in the alternative summary adjudication.  The trial court granted defendants’ motion for summary judgment.  The trial court found that Galvan could not make a prima facie showing of discrimination because she could not establish that she suffered an adverse employment action or that Dameron acted with a discriminatory motive.  The trial court likewise found that she could not make a prima facie showing of harassment because she cannot show that any of the complained of conduct was based on her national origin or age.  The trial court determined that the remaining causes of action and claims for injunctive and declaratory relief and punitive damages were derivative of the discrimination and harassment causes of action, and thus, could not survive summary judgment.


Galvan appeals, arguing there are triable issues of material fact as to each of her causes of action and her claims for declaratory relief (discrimination), injunctive relief, and punitive damages.  We agree in part.  We will reverse the judgment and direct the trial court to vacate its order granting summary judgment and enter a new order granting summary adjudication of Galvan’s retaliation and negligent supervision causes of action and her claims for declaratory relief (retaliation) and punitive damages, but denying summary adjudication of her discrimination, harassment, and failure to take necessary steps to prevent discrimination and harassment, and wrongful termination in violation of public policy causes of action, and her claims for declaratory relief (discrimination) and injunctive relief.




Ixchel Pharma v. Biogen (9th Cir. 18-15258 7/16/19) Business & Professions Code section 16600/contractual restraints


The panel certified to the California Supreme Court the following questions:


Does section 16600 of the California Business and Professions Code void a contract by which a business is restrained from engaging in a lawful trade or business with another business?


Is a plaintiff required to plead an independently wrongful act in order to state a claim for intentional interference with a contract that can be terminated by a party at any time, or does that requirement apply only to at-will employment contracts?



McCleery v. Allstate Ins. Co. (CA2/1 B282851A 7/15/19) Class Certification


In this putative class action, property inspectors allege they were engaged by three “service” companies to perform inspections for two major insurers.  The inspectors allege they were in fact employees of the insurers and service companies jointly, and were entitled to but deprived of minimum wages, overtime, meal and rest breaks, reimbursement of expenses, and accurate wage statements.


The inspectors moved for class certification, supported by their expert’s declaration that liability could be determined and damages calculated classwide by way of statistical analyses of results obtained from an anonymous, double-blind survey of a sampling of class members. The trial court summarily rejected the expert’s plan and denied certification on the ground that the inspectors had failed to show that their status as employees (as opposed to independent contractors) could be established on predominately common proof.


We reversed the order and remanded the matter with a direction, as pertinent here, to evaluate plaintiffs’ proposed sampling plan.  (McCleery v. Allstate Ins. Co. (Feb. 5, 2016, B256374) [nonpub. opn.].)  On remand, plaintiffs offered a trial plan describing their proposal to establish liability and damages by way of an anonymous survey of all class members.  The trial court found common issues existed as to the class members’ employment status.  It further found that plaintiffs’ survey method, although flawed in some respects, was carefully crafted for accuracy.  However, the court found plaintiffs’ trial plan to be unworkable because it failed to address individualized issues and deprived defendants of the ability to assert defenses.  The court therefore again denied certification.


Plaintiffs appeal, contending the trial court applied improper criteria and made incorrect legal assumptions.


We conclude that under the analytic framework promulgated by Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004 (Brinker) and Duran v. U.S. Bank National Assn. (2014) 59 Cal.4th 1 (Duran), the trial court acted within its discretion in denying certification.



Bills Signed by Governor (7/12/19)


  • AB 381 by Assemblymember Eloise Gómez Reyes (D-Grand Terrace) – Postsecondary education: sexual assault and sexual violence prevention training: intimate partner and dating violence.

  • AB 644 by the Committee on Public Employment and Retirement – State teachers’ retirement: compensation.

  • AB 672 by Assemblymember Sabrina Cervantes (D-Riverside) – Public employees’ retirement: disability retirement: reinstatement.

  • AB 706 by Assemblymember Evan Low (D-Campbell) – Community colleges: academic employees.

  • AB 988 by Assemblymember Marc Berman (D-Palo Alto) – Teacher credentialing: out-of-state prepared teachers: education specialist credential.

  • SB 103 by the Committee on Budget and Fiscal Review – State employees: memorandum of understanding.


Monster Energy Company v. Schechter (SC S251392 7/11/19) Settlement Agreements/Attorneys’ Confidentiality Obligations


Here the parties to a tort action agreed to settle their lawsuit.  Their agreement was reduced to writing and included several provisions purporting to impose confidentiality obligations on the parties and their counsel.  All parties signed the agreement and their lawyers signed under a notation that they approved the written agreement as to form and content. 


Counsel allegedly violated the agreement by making public statements about the settlement and were sued, inter alia, for breach of contract.  Counsel urged they were not personally bound by the confidentiality provisions and moved to dismiss the suit under the anti-SLAPP statutes.  As to the cause of action at issue here, the trial court denied counsels’ motion.  The Court of Appeal reversed that ruling, concluding the notation meant only that counsel recommended their clients sign the document.  We conclude the notation does not preclude a factual finding that counsel both recommended their clients sign the document and intended to be bound by its provisions.




Bill Signed by Governor (7/10/19)

  • SB 322 by Senator Steven Bradford (D-Gardena) – Health facilities: inspections: employee reporting.

Blaser v. State Teachers' Retirement System (CA6 H045071 7/10/19) Pension Overpayments


California State Teachers’ Retirement System (CalSTRS) is the state agency responsible for managing contributions made by employees and member school districts to the State Teachers’ Retirement Fund.  (See Ed. Code, § 22000 et seq.) In March 2014, William Baxter and 10 other retired teachers (the Baxter petitioners) formerly employed by the Salinas Unified High School District (District) filed a petition for a peremptory writ of administrative mandamus, naming CalSTRS as respondent and the District as real party in interest.  (See Baxter v. State Teachers’ Retirement System (2017) 18 Cal.App.5th 340, 351 (Baxter).)  The Baxter petitioners sought relief to prevent CalSTRS from continuing to reduce their monthly retirement benefit payments and to restore prior monies they claimed CalSTRS had wrongfully withheld.  (Ibid.)  CalSTRS made the deductions to recoup overpayments that had been made to the Baxter petitioners as a result of a years-long miscalculation by the District of their monthly retirement benefits.  (Id. at p. 347.)  The trial court held that the three-year statute of limitations (§ 22008, subd. (a)) barred CalSTRS from (1) recouping prior overpayments made to the Baxter petitioners by adjusting downward their future monthly benefits, and (2) reducing their future monthly benefits to reflect the correct calculation of their benefits.  (Baxter, supra, at pp. 347-348.)  In December 2017, a panel of this court reversed, concluding the trial court had erred in holding that CalSTRS’s efforts to recoup overpayments were time-barred as to all monthly retirement payments, both past and future.  (Id. at p. 349.)  This court found that the continuous accrual theory applied.  (Id. at p. 382.)  Under this theory, “ ‘a series of wrongs or injuries may be viewed as each triggering its own limitations period, such that a suit for relief may be partially time-barred as to older events but timely as to those within the applicable limitations period.  [Citation.]’  [Citation.]”  (Id. at pp. 378-379.)


The present action is a successor to the suit by the Baxter petitioners.  In February 2016—while the Baxter appeal was pending—respondents in this appeal, who are 31 retired District teachers (hereafter collectively Teachers), filed a petition for writ of mandate and a complaint for declaratory and injunctive relief against CalSTRS and the District.  Like the Baxter petitioners, Teachers challenged reductions that CalSTRS had made and continued to make to their monthly retirement benefits to recoup prior overpayments and to adjust ongoing monthly benefits to their proper amounts.  The overpayments were the result of the same miscalculation the District had made to the Baxter petitioners’ monthly retirement benefits. 


In July 2017—five months prior to this court’s decision in Baxter—the trial court granted Teachers’ petition for writ of mandate in this case, concluding that CalSTRS’s claims to reduce Teachers’ retirement benefits and collect overpayments were time-barred.  The trial court held that CalSTRS, by no later than July 30, 2010, “was ‘aware of the possibility’ ” that there were District schoolteachers other than the Baxter petitioners whose retirement benefits had been incorrectly calculated by the District, but that “CalSTRS did not take action until 2014, more than three years later.”  In holding that CalSTRS was barred from recouping prior overpayments from Teachers or from reducing future payments to correct the District’s prior miscalculation, the trial court concluded that the continuous accrual theory did not apply.


CalSTRS appealed from the judgment.  In its appeal, CalSTRS challenges the trial court’s rejection of the continuous accrual theory.  CalSTRS urges that, under Baxter, the continuous accrual theory applies, and that “CalSTRS is time-barred only as to claims relating to pension benefit payments made more than three years before CalSTRS took ‘action’ by reducing each individual teacher’s monthly benefit payment[].”


We hold—following Baxter, supra, 18 Cal.App.5th 340, which in turn relied on Supreme Court precedent, including Dryden v. Board of Pension Commrs. (1936) 6 Cal.2d 575 (Dryden)—that the continuous accrual theory applies here to the periodic pension benefit payments made to Teachers.  Thus, CalSTRS was time-barred from pursuing any claim against Teachers as to pension benefit overpayments made more than three years before CalSTRS commenced an action.  But CalSTRS is not barred by the statute of limitations from pursuing any claim concerning periodic overpayments to Teachers and adjustments to Teachers’ future monthly benefits, where the payment accrued not more than three years prior to commencement of an action.  Further, the trial court held that CalSTRS commenced an “action” by reducing Teachers’ monthly benefit payments beginning in 2014.  But we decide—as we did in Baxter—that the reduction in benefits made by CalSTRS, under the factual and procedural context presented here, did not constitute the commencement of an “action” within the meaning of the statute of limitations.  Instead, we conclude that CalSTRS constructively commenced an “action” at the time Teachers herein filed their verified petition and complaint in the superior court on February 1, 2016.  Under well-established legal principles, the filing of a complaint by the plaintiff tolls or suspends the statute of limitations as to any counterclaims existing in favor of the defendant on the date of such filing.  (Union Sugar Co. v. Hollister Estate Co. (1935) 3 Cal.2d 740, 746 (Union Sugar).)  Therefore, CalSTRS is deemed to have commenced an “action” to toll or suspend the statute of limitations when Teachers filed suit on February 1, 2016.  Accordingly, we hold that CalSTRS may assert claims to recoup overpayments for past monthly payments accruing on or after February 1, 2013, and it may adjust future monthly payments to recoup prior overpayments (on benefit payments that accrued on or after February 1, 2013) and to correct the District’s prior miscalculation of monthly benefits going forward.  We will reverse the judgment.




Townley v. BJ's Restaurants, Inc. (CA3 C086672, filed 6/4/19, pub. ord. 7/8/19) No Reimbursement of Slip-Resistant Shoes


Plaintiff Krista Townley (Townley) appeals from the judgment entered after the trial court granted summary judgment in favor of defendant BJ’s Restaurants, Inc. (BJ’s) on her sole cause of action under the Labor Code Private Attorneys General Act of 2004 (Lab. Code, § 2698 et seq.; PAGA), which sought civil penalties on behalf of herself and other “aggrieved employees” for Labor Code violations. In this appeal, we are asked to determine whether section 2802 requires an employer to reimburse its employees for the cost of slip-resistant shoes as “necessary expenditures . . . incurred by the employee[s] in direct consequence of the discharge of [their] duties.”  (§ 2802, subd. (a).)  Because we conclude the statute does not impose such a requirement, we affirm the judgment.




Bill Signed by Governor (7/3/19)


  • SB 188, Mitchell. CROWN Act: Discrimination: hairstyles.


Edge v. City of Everett (9th Cir. 17-36038 7/3/19) Dress Code Ordinance


The panel vacated the district court’s preliminary injunction against enforcement of the City of Everett, Washington’s Dress Code Ordinance—requiring that the dress of employees, owners, and operators of Quick-Service facilities cover “minimumbody areas”—and the amendments to the Lewd Conduct Ordinances.


Plaintiffs are owners and employees of a bikini barista stand in Everett, Washington.


The panel held that plaintiffs did not show a likelihood of success on the merits of their two Fourteenth Amendment void-for-vagueness challenges, nor on their First Amendment free expression claim.


Concerning the Lewd Conduct Ordinances, which expanded the definition of “lewd act” and also created the misdemeanor offense of Facilitating Lewd Conduct, the panel held that the activity the Lewd Contact Amendments prohibited was reasonably ascertainable to a person of ordinary intelligence. The panel also held that the Amendments were not amenable to unchecked law enforcement discretion. The panel concluded that the district court abused its discretion by holding that the plaintiffs were likely to succeed on the merits of their void-for-vagueness challenge to the Amendments.


Concerning enjoinment of the enforcement of the Dress Code Ordinance, the panel held that the vagueness principles governing the panel’s analysis of the Lewd Conduct Amendments applied with equal force to the Dress Code Ordinance. The panel concluded that the vagueness doctrine did not warrant an injunction prohibiting enforcement of the Dress Code Ordinance. As to plaintiffs’ First Amendment contention that the act of wearing almost no clothing while serving coffee in a retail establishment constituted speech, the panel held that plaintiffs had not demonstrated a “great likelihood” that their intended messages related to empowerment and confidence would be understood by those who view them. The panel concluded that the mode of dress at issue in this case was not sufficiently communicative to merit First Amendment protection. The panel also held that the district court’s application of intermediate scrutiny under the “secondary effects” line of authority was inapposite, and the City need only demonstrate that the Dress Code Ordinance promoted a substantial government interest that would be achieved less effectively absent the regulation. Because the district court did not analyze the ordinance under this framework, the panel vacated the preliminary injunction and remanded for further proceedings.




Amalgamated Transit Union Local 1015 v. Spokane Transit Auth. (9th Cir. 17-35955 7/2/19) First Amendment/Union Advertising


The panel affirmed the district court’s judgment in favor of a union in a case involving the union’s challenge to the Spokane Transit Authority (“STA”)’s decision, under its advertising policy, not to run a proposed advertisement from the union on STA’s buses.


The panel affirmed the district court’s holding that the STA unreasonably rejected the proposed ad in violation of the union’s First Amendment rights. The panel declined to accept the First and Sixth Circuit’s approaches of giving deference to a transit agency’s application of its advertising policy.


The panel held that the STA’s bus advertising program was classified as a “limited public forum” which allowed content-based restrictions as long as they were reasonable and viewpoint neutral. The panel applied the three-part test for a limited public forum to review STA’s decision to exclude the union’s ad under “public issue” advertising. First, the panel held that the policy was reasonable in light of the forum because STA’s concern with engaging in matters of public debate was related to the purpose of running an efficient and profitable transit system. Second, the panel held that STA’s standard lacked objective criteria to provide guideposts for determining what constituted prohibited “public issue” advertising. Third, the panel held that, based on an independent review of the record, STA’s application of its “public issue” advertising ban to exclude the union’s proposed ad was unreasonable.


Finally, the panel held that because the union’s ad promoted an organization that engaged in commercial activity, STA unreasonably applied its “commercial and promotional advertising” policy to reject the union’s ad.




Stoetzl v. Dept. of Human Resources (SC S244751 7/1/19)  Entry-Exit Walktime Not Compensable


In this case, we decide whether a certified class of state correctional employees is entitled to additional compensation for time spent on pre- and postwork activities, including traveling from the outermost gate of the prison facility to their work posts within the facility, traveling back from their work posts to the outermost gate, being briefed before the start of a shift, briefing relief staff at the end of a shift, checking out and checking back in mandated safety equipment, putting on and removing such equipment, and submitting to searches at various security checkpoints within the facility.  For convenience, we will refer to the time spent doing these pre- and postwork activities as “walk time” although we recognize that walk time includes many activities besides merely walking to and from a work post.  There are two types of walk time that are relevant here.  The first is the time a correctional employee spends after arriving at a prison’s outermost gate but before beginning the first activity the employee is employed to perform (plus analogous time at the end of the employee’s work shift).  We will call this type of walk time “entry-exit walk time.”  The second is the time a correctional employee spends after beginning the first activity the employee is employed to perform but before the employee arrives at his or her assigned work post (plus analogous time at the end of the employee’s work shift).  We will call this type of walk time “duty-integrated walk time.”


The trial court divided the plaintiff class into two subclasses, one for supervisory employees who were not represented by a union during the time period set forth in the class certification and the other for represented employees.  We conclude that the subclass of represented plaintiffs expressly agreed, by way of the collective bargaining process, to a specific amount of compensation for duty-integrated walk time, and there is no allegation that the state failed to pay the agreed-upon amount.  Moreover, the collective bargaining agreements that memorialized this agreement all provided that they constituted the entire understanding of the parties concerning matters contained therein, and thus they precluded other forms of compensation, such as compensation for entry-exit walk time.  These agreements were approved by the Legislature, and each approval was signed by the Governor and chaptered into law, thus becoming specific legislation applicable to the represented plaintiffs and superseding more general laws to the extent of any conflict.  Therefore, the represented plaintiffs’ claims fail insofar as they seek additional compensation for either duty-integrated walk time or entry-exit walk time.


As to the subclass of unrepresented plaintiffs, we conclude that they may be entitled to additional compensation for duty-integrated walk time.  The terms and conditions that govern the employment of the unrepresented plaintiffs are determined by the Department of Human Resources (CalHR) and set forth in a manual known as the Pay Scale Manual and also in CalHR’s regulations.  The Pay Scale Manual defines compensable work time for purposes of calculating an employee’s right to regular and overtime compensation, and duty-integrated walk time falls squarely within that definition.  If, as is alleged, the state did not take duty-integrated walk time into consideration when calculating the compensation owed to the unrepresented plaintiffs, then those plaintiffs may be entitled to additional pay.


Entry-exit walk time, by contrast, does not fall within the Pay Scale Manual’s definition of compensable work time.  Moreover, because the Pay Scale Manual comprehensively addresses the question of compensation for the unrepresented plaintiffs, it precludes compensation for any work time that falls outside the scope of its definition.  Therefore, insofar as the unrepresented plaintiffs are seeking compensation for entry-exit walk time, their claims must be rejected.

The Court of Appeal reached somewhat different conclusions, and therefore we reverse its judgment.




Esparza v. Safeway, Inc. (CA2/4 B287927M filed 6/10/19, mod. 6/2819) Meal Breaks/UCL Class Certification



            It is ordered that the opinion filed June 10, 2019 be modified as follows:

On page 9, lines 12 through 14, the quotation marks before the word “it” and ending after the word “penalties” are deleted;

On page 9, line 14, the following parenthetical is added after the word “penalties” and before the period:  “(“[W]age losses from the failure to receive the expected value of the right to receive ‘premium pay’ when due have clear economic value to employees and can be monetized in an economically reasonable fashion”)”;

On page 25, lines 7 through 9, the quotation marks before the word “it” and ending after the word “penalties” are deleted;

The petition for rehearing is denied.  The modification does not change the judgment.




Kisor v. Wilkie (US 18-15 6/26/19) Agency Deference Doctrine


Petitioner James Kisor, a Vietnam War veteran, first sought disability benefits from the Department of Veterans Affairs (VA) in 1982, alleging that he had developed post-traumatic stress disorder from his military service. The agency denied his initial request, but in 2006, Kisor moved to reopen his claim. The VA this time agreed he was eligible for benefits, but it granted those benefits only from the date of his motion to reopen, not (as Kisor had requested) from the date of his first application. The Board of Veterans’ Appeals—a part of the VA—affirmed that retroactivity decision, based on its interpretation of an agency rule governing such claims. The Court of Appeals for Veterans Claims affirmed.


The Federal Circuit also affirmed, but it did so by applying a doctrine called Auer (or sometimes, Seminole Rock) deference. See Auer v. Robbins, 519 U. S. 452; Bowles v. Seminole Rock & Sand Co., 325 U. S. 410. Under that doctrine, this Court has long deferred to an agency’s reasonable reading of its own genuinely ambiguous regulations. The Court of Appeals concluded that the VA regulation at issue was ambiguous, and it therefore deferred to the Board’s interpretation of the rule. Kisor now asks the Court to overrule Auer, as well as its predecessor Seminole Rock, discarding the deference those decisions give to agencies.


Held: The judgment is vacated and remanded. 869 F. 3d 1360, vacated and remanded.


JUSTICE KAGAN delivered the opinion of the Court with respect to Parts I, II–B, III–B, and IV, holding that Auer and Seminole Rock are not overruled. Pp. 11–19, 25–29.


(a) This Court’s deference doctrine is rooted in a presumption that Congress intended for courts to defer to agencies when they interpret their own ambiguous rules. The Court adopts that presumption for a set of reasons related to the comparative attributes of courts and agencies in answering interpretive questions. But when the reasons for the presumption do not hold up, or when countervailing reasons outweigh them, courts should not give deference to an agency’s reading. The Court has thus cabined Auer’s scope in varied and critical ways.


First and foremost, a court should not afford Auer deference unless, after exhausting all the “traditional tools” of construction, Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843, n. 9, the regulation is genuinely ambiguous. A court must carefully consider the text, structure, history, and purpose of a regulation before resorting to deference. If genuine ambiguity remains, the agency’s reading must still fall “within the bounds of reasonable interpretation.” Arlington v. FCC, 569 U. S. 290, 296.


And even then, not every reasonable agency reading of a genuinely ambiguous rule should receive Auer deference. Rather, a court must also make an independent inquiry into whether the character and context of the agency interpretation entitles it to controlling weight. See, e.g., Christopher v. SmithKline Beecham Corp., 567 U. S. 142, 155. The inquiry along this dimension does not reduce to an exhaustive test, but the Court has laid out some especially important markers for identifying when Auer deference is and is not appropriate. To begin with, the regulatory interpretation must be the agency’s authoritative or official position, rather than any more ad hoc statement not reflecting the agency’s views. Next, the agency’s interpretation must in some way implicate its substantive expertise, as the basis for deference ebbs when the subject matter of a dispute is distant from the agency’s ordinary duties. Finally, an agency’s reading of a rule must reflect its “ fair and considered judgment.” Auer, 519 U. S., at 462. A court should decline to defer, for example, to a merely “ ‘convenient litigating position,’ ” Christopher, 567 U. S., at 155., or to a new interpretation that creates “unfair surprise” to regulated parties, Long Island Care at Home, Ltd. v. Coke, 551 U. S. 158, 170. Pp. 11–19.


(b) Stare decisis cuts strongly against overruling Auer. Adherence to precedent is “a foundation stone of the rule of law,” Michigan v. Bay Mills Indian Community, 572 U. S. 782, 798, and any departure from the doctrine demands “special justification,” Halliburton Co. v. Erica P. John Fund, Inc., 573 U. S. 258, 266. That is even more than usually so in the circumstances here. First, Kisor asks the Court to overrule a “long line of precedents”—each one reaffirming the rest and going back 75 years or more. Bay Mills, 572 U. S., at 798. Second, because Auer deference pervades the whole corpus of administrative law, abandoning it would cast doubt on many settled constructions of rules. And third, even if the Court is wrong about Auer, “Congress remains free to alter what [the Court has] done.” Patterson v. McLean Credit Union, 491 U. S. 164, 172–173. For approaching a century, Congress has let this deference regime work side-byside with both the Administrative Procedure Act (APA) and the many statutes delegating rulemaking power to agencies. This Court would thus need a particularly “special justification” to now reverse Auer.


Kisor offers nothing of that ilk. Nearly all of his arguments relate to whether the doctrine is wrong or poorly reasoned. He does not claim that Auer deference is “unworkable,” a traditional basis for overruling a case, Patterson, 491 U. S., at 173, or point to changes in legal rules that make Auer a “doctrinal dinosaur,” Kimble v. Marvel Entertainment, LLC, 576 U. S. ___, ___. Instead, his lone special justification is that the administrative state has evolved substantially since this Court decided Seminole Rock in 1945. It is true that agencies have far-reaching influence today; that is one reason the Court has taken care to reinforce the limits of Auer deference. But it is no answer to the growth of agencies for courts to take over their expertise-based, policymaking functions. Pp. 25–28.


(c) Turning to Kisor’s own case, a remand is necessary for two reasons. First, the Federal Circuit jumped the gun in declaring the VA’s regulation ambiguous before bringing all its interpretive tools to bear on the question. Second, the Federal Circuit assumed too fast that Auer deference should apply in the event of genuine ambiguity, rather than assessing whether the interpretation is of the sort that Congress would want to receive deference. On remand, the Court of Appeals must reconsider whether Auer deference is warranted, bearing in mind the principles outlined in this opinion. Pp. 28–29.




(a) Auer deference is rooted in a presumption that Congress would generally want the agency to play the primary role in resolving regulatory ambiguities. See Martin v. Occupational Safety and Health Review Comm’n, 499 U. S. 144, 151–153. In part, the presumption arises because the agency that promulgated a rule is in the “better position [to] reconstruct” its original meaning. Id., at 152. In still greater measure, the presumption stems from an awareness that resolving genuine regulatory ambiguities often “ ‘entail[s] the exercise of judgment grounded in policy concerns,’ ” an area where agencies have a comparative advantage over courts. Thomas Jefferson Univ. v. Shalala, 512 U. S. 504, 512. Finally, the presumption reflects the well-known benefits of uniformity in interpreting ambiguous rules. Auer deference promotes “resolving interpretive issues by uniform administrative decision, rather than piecemeal by litigation,” Ford Motor Credit Co. v. Milhollin, 444 U. S. 555, 568. Pp. 4–11.


(b) None of Kisor’s arguments provide good reason to reconsider Auer deference. First, he claims that Auer is inconsistent with the APA’s judicial review provision, which instructs reviewing courts to “determine the meaning” of an agency action. 5 U. S. C. §706. Even when a court defers to a regulatory reading, however, it acts consistently with Section 706. That provision does not specify the standard of review a court should use in “determin[ing] the meaning” of an ambiguous rule. This Court thus presumes that Congress would want courts to do so by reviewing agency interpretations for reasonableness. That is especially so because Section 706, when enacted, was understood to restate the present law of judicial review—which would have included deference under Seminole Rock. Nor does Auer circumvent the APA’s rulemaking requirements, which require regulations to go through notice and comment before they can bind third parties. Even though a court might defer to an agency’s interpretation of a regulation, the agency’s interpretation itself never forms the basis for an enforcement action. Rather, an agency bringing an enforcement action must always rely on a rule that went through notice and comment. And courts, in turn, always retain the final authority to approve—or not—an agency’s reading of that notice-and-comment rule. See Perez v. Mortgage Bankers Assn., 575 U. S. 92, ___.


Kisor’s policy and constitutional arguments fail just as roundly. As a policy matter, he contends that Auer encourages agencies to issue vague and open-ended regulations, confident that they can later impose whatever interpretation of those rules they prefer. But no real evidence backs up that assertion and strong incentives cut in the opposite direction. Finally, Kisor asserts that Auer deference violates “separation-of-powers principles” by vesting both legislative and judicial functions in one branch. If that objection is to agencies’ usurping the interpretive role of courts, Auer—when properly understood and applied—does no such thing. And if the objection is instead to the supposed commingling of functions within an agency, this Court has explained that even when agency “activities take ‘legislative’ and ‘judicial’ forms,” they continue to be “exercises of the ‘executive Power,’” and thus raise no constitutional concerns. Arlington, 569 U. S., at 304–305, n. 4. Pp. 19–25.


KAGAN, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II–B, III–B, and IV, in which ROBERTS, C. J., and GINSBURG, BREYER, and SOTOMAYOR, JJ., joined, and an opinion with respect to Parts II–A and III–A, in which GINSBURG, BREYER, and SOTOMAYOR, JJ., joined. ROBERTS, C. J., filed an opinion concurring in part. GORSUCH, J., filed an opinion concurring in the judgment, in which THOMAS, J., joined, in which KAVANAUGH, J., joined as to Parts I, II, III, IV, and V, and in which ALITO, J., joined as to Parts I, II, and III. KAVANAUGH, J., filed an opinion concurring in the judgment, in which ALITO, J., joined.



Byrd v. State Personnel Bd. (CA4/1 D073879 6/26/19) Reinstatement/SPB/CalPERS


Clare Byrd appeals from the trial court's judgment denying her petition for writ of mandate and declaratory judgment.  Byrd asked the court to intervene following the breakdown of a settlement agreement between her and the California State University system (CSU), which the State Personnel Board (SPB) initially approved.  But following a refusal to comply with material terms of the settlement by the California Public Employees' Retirement System (CalPERS), SPB changed its position and rejected the settlement in a decision vacating its prior approval.  


Among other provisions, the settlement agreement directed that Byrd would be reinstated to a classification with a significantly higher salary, which she had never held, and that she would receive compensation at the higher salary during the period that CSU, with her assistance, would apply for medical retirement benefits.  Byrd requested that the trial court compel CalPERS to process her reinstatement at the higher salary level.  CalPERS maintained it was unable to do so because Government Code section 21198—part of the statutory framework governing CalPERS's oversight of state pension funds—only authorized Byrd's reinstatement to a job classification she previously held before her termination.  The trial court agreed with CalPERS and denied Byrd's petition.


On appeal, Byrd argues that section 21198 allows CalPERS to reinstate Byrd to employment as a straightforward matter and does not require reinstatement to the same specific classification or pay rate.  She emphasizes that the bargained-for terms of the settlement agreement contemplated a scenario in which Byrd would return to work, at least for a short period, while her application for medical retirement benefits was processed.


In the typical case, section 21198 directs CalPERS to reinstate an employee who was involuntarily terminated but then returned to that same classification as a result of an administrative or judicial proceeding.  The reinstatement thus allows CalPERS to effectuate the purpose of this specific provision and recreate the status quo ante.  There may be atypical circumstances in which an individual can be properly reinstated (following involuntary termination and pursuant to an administrative or judicial proceeding) to a different classification.  But if there are those instances, the statute requires a nexus between the new classification and the underlying dispute.  In the absence of any such connection here, we find that section 21198 prevents CalPERS's compliance with the settlement agreement.  Accordingly, we affirm.




Biel v. St. James School (9th Cir. 17-55180 en banc rehrg. den.6/25/19) Employment Discrimination/Ministerial Exception


The panel denied a petition for panel rehearing and, on behalf of the court, a petition for rehearing en banc following the panel’s opinion reversing the district court’s summary judgment in an employment discrimination action under the Americans with Disabilities Act.


In its opinion, the panel held that the First Amendment’s ministerial exception to generally applicable employment laws did not bar a teacher’s claim against the Catholic elementary school that terminated her employment.


Dissenting from the denial of rehearing en banc, Judge R. Nelson, joined by Judges Bybee, Callahan, Bea, M. Smith, Ikuta, Bennett, Bade, and Collins, wrote that the panel’s opinion embraced the narrowest construction of the ministerial exception, split from the consensus of other circuits that the employee’s ministerial function should be the key focus, and conflicted with the Supreme Court’s decision in Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 565 U.S. 171 (2012).



Pearl v. City of Los Angeles (CA2/7 B285235 6/18/19) FEHA/Remittitur to Reduce Damages


A jury awarded James Pearl $17,394,972, including $10 million in past and $5 million in future noneconomic damages, in his employment action against the City of Los Angeles for harassment and failure to prevent harassment and retaliation in violation of the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12940 et seq.).  The City moved for a new trial, arguing the damages were excessive.  Finding that at least some of the jury’s award for past noneconomic harm was intended to punish the City rather than to compensate Pearl, the trial court conditionally granted the City’s new trial motion unless Pearl agreed to a remittitur reducing past noneconomic damages by $5 million.  Pearl accepted the remittitur; and the trial court denied the City’s new trial motion and entered an amended judgment in the amount of $12,394,972, exclusive of attorney fees and costs.


On appeal the City contends the court abused its discretion in utilizing the remittitur procedure to reduce damages.  Without challenging the jury’s liability findings, the City argues that, once the court found that aspects of the jury’s award were punitive, it had no choice but to grant a new trial on the limited issue of damages.  We affirm.




Chavez v. Sarumi (Humboldt/AD JAD18-15, filed 12/24/18, pub. ord. 6/18/19) Labor Commissioner Appeal


The trial court or superior court is referred to herein as “Trial Court” and the appellate division as the “Appellate Division.”  The State of California, Division of Labor Standards Enforcement on behalf of Jody Chavez, referred to herein as “Appellant,” is the appellant at the Appellate Division and Gbolahan Sarumi, dba Orick Motel & RV Park, referred to herein as the “Respondent,” is the respondent at the Appellate Division.  Respondent was the party, however, who filed the initial notice of appeal at the Trial Court appealing the Labor Commissioner’s underlying decision.




Karonski v. Trump (9th Cir. 18-35347 per curiam 6/14/19) Transgender Military Service/Executive Branch Privilege


In an action challenging a 2017 Presidential Memorandum which barred transgender individuals from serving in the military, the panel: (1) vacated the district court’s order striking the defendants’ motion to dissolve a 2017 preliminary injunction that had stayed enforcement, and remanded to the district court to reconsider the motion; (2) stayed the 2017 preliminary injunction through the district court’s further consideration of defendants’ motion to dissolve the injunction; and (3) issued a writ of mandamus vacating the district court’s discovery order and directing the district court to reconsider discovery by giving careful consideration to executive branch privileges.


In July 2017, President Trump announced on Twitter that transgender individuals would not be allowed to serve in the military. This was followed by an August 2017 Memorandum implementing his announcement. Plaintiffs brought suit alleging that the Twitter Announcement and 2017 Memorandum unconstitutionally discriminated against transgender individuals. The district court issued a preliminary injunction against enforcement of the 2017 Memorandum, essentially holding that it was not a considered military judgment that warranted deference. In March 2018, the President revoked the 2017 Memorandum and authorized then-Secretary of Defense James Mattis to implement a policy, based on a 44-page report, which addressed a medical condition, gender dysphoria, rather than transgender status. Defendants then asked the district court to dissolve the 2017 preliminary injunction on the basis that the 2018 Policy was a new policy to be evaluated on its own merit. The district court struck the motion to dissolve.


In vacating the district court’s order striking defendants’ motion to dissolve the 2017 preliminary injunction, the panel held that the 2018 Policy was significantly different from the 2017 Memorandum in both its creation and its specific provisions and therefore defendant had made the requisite threshold showing of a significant change of facts. The panel therefore remanded for the district court to address whether the change warranted dissolution of the 2017 preliminary injunction.


In determining what level of scrutiny the district court should apply on remand, the panel concluded that the 2018 Policy on its face treated transgender persons differently than other persons, and consequently something more than rational basis but less than strict scrutiny applied to the military’s decisionmaking. The panel further concluded that on the current record, a presumption of deference was owed to the decisionmaking because the 2018 Policy appeared to have been the product of independent military judgment, and therefore the district court could not substitute its own evaluation of evidence for a reasonable evaluation by the military. The panel further stayed the 2017 preliminary injunction consistent with the Supreme Court’s order of January 22, 2019, which had stayed the preliminary injunction pending appeal in the Ninth Circuit. The panel stated that should the district court deny the motion to dissolve the injunction, the stay would remain in place throughout this Court’s disposition of any appeal by the Government.


The panel issued a writ of mandamus vacating the district court’s discovery order which had granted plaintiffs’ motion to compel discovery of government documents. The panel held that the executive privileges—the presidential communications privilege and deliberative process privilege—although not absolute, required careful consideration by the judiciary, even when they have not been clearly or persuasively raised by the government. The panel held that in its further considerations of plaintiffs’ discovery requests, the district court should give careful consideration to executive branch privileges as set forth in Cheney v. U.S. District Court for the District of Columbia, 542 U.S. 367 (2004), and FTC v. Warner Communications Inc., 742 F.2d 1156 (9th Cir. 1984).




Conger v. Co. of LA (CA2/1 B288575 6/14/19) Rescission of Promotion


The Los Angeles County Sheriff ’s Department (the Department) rescinded appellant Thomas L. Conger’s probationary promotion to lieutenant based on investigatory findings that Conger had failed to report a use of force several months before the Department promoted him to the probationary position.  After unsuccessfully pursuing administrative remedies, Conger filed a petition for a writ of mandate in the trial court claiming that rescinding his promotion based on alleged conduct occurring before he was elevated to his probationary position constituted a demotion or a “denial of promotion on grounds other than merit,” thus entitling him to an administrative appeal under Government Code section 3304, subdivision (b), a provision of the Public Safety Officers Procedural Bill of Rights Act (POBRA) (§ 3300 et seq.).  Conger requested that the trial court issue an order directing the County of Los Angeles (the County), as well as its Civil Service Commission, Board of Supervisors, and Chief Executive Officer (collectively, respondents) to provide him that administrative appeal. 


The trial court denied the petition, ruling that the Department properly could consider Conger’s pre-probationary conduct in rescinding his probationary promotion, and that the decision to rescind the promotion based on Conger’s failure to report a use of force was merit-based. 


We agree with the trial court that the Department’s decision to deny Conger a promotion was merit-based.  We further conclude that Conger has failed to show that the written evaluation detailing his unreported use of force will impact his career adversely in the future apart from the loss of his probationary position.  Accordingly, we affirm the judgment.