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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Bills Signed by Governor (9/5/19)
SB 271 by Senator Scott Wiener (D-San Francisco) – Employment: motion picture production workers.
SB 534 by Senator Steven Bradford (D-Gardena) – Insurers: minority, women, LGBT, veteran, and disabled veteran business enterprises.
SB 671 by Senator Robert Hertzberg (D-Van Nuys) – Employment: payment of wages: print shoot employees.
Head v. Wilkie (9th Cir. 17-55942 9/5/19) 42 U.S.C. § 1985(2)/Retaliation for Testifying
The panel reversed the district court’s order granting summary judgment to defendants in an action brought by Christian Head, M.D., an African-American, board-certified head and neck surgeon who filed a lawsuit against his employer, the Secretary of the Department of Veterans Affairs and individual employees alleging, in part, that his supervisors violated 42 U.S.C. § 1985(2) by conspiring to deter him from testifying in a colleague’s and his own civil rights cases.
The district court granted the defendants’ motion for summary judgment on the § 1985(2) conspiracy claim, relying on David v. United States, 820 F.2d 1038 (9th Cir. 1987), which held that only parties to the initial case who were “hampered in being able to present an effective case” can show injury sufficient to bring a section 1985(2) claim.
The panel held that this court’s decision in David was abrogated by Haddle v. Garrison, 525 U.S. 121, 126 (1998), to the extent that David limited section 1985(2) claims on statutory standing and injury grounds in conflict with Haddle. The panel held that a plaintiff asserting conspiracy under section 1985(2) need not show that the party in the original proceeding was hampered in presenting an effective case; interference with a witness’s employment is a cognizable injury for section 1985(2) purposes. The panel held that David’s limitations were irreconcilable with Haddle’s proclamation that intimidation or retaliation against witnesses in federal court proceedings constitute the “gist of the wrong” at which the statute is directed. The panel held that, as other sister circuits have recognized, this expanded view of section 1985(2) aligned with the Supreme Court’s broad reading of the Reconstruction civil rights acts like section 1985.
The panel held that plaintiff’s allegations that employees retaliated against him based on his testimony in a colleague’s federal civil rights case and in his own case alleged a cognizable injury. The panel reversed the district court’s order granting summary judgment to the defendant supervisors on plaintiff’s section 1985(2) conspiracy claim and remanded for further proceedings consistent with the panel’s opinion and with the concurrently filed unpublished memorandum, which addressed plaintiff’s remaining employment discrimination claims.
Bills Signed by Governor (9/4/19)
AB 330 by Assemblymember Jesse Gabriel (D-Encino) – Appointed legal counsel in civil cases.
AB 1518 by Assemblymember Kansen Chu (D-San Jose) – Student athletes: contracts.
Arias v. Residence Inn by Marriott (9th Cir. 19-55803 9/3/19) Class Action Fairness Act/Wage and Hour
The panel vacated the district court’s order sua sponte remanding to state court a putative class action brought by employees against Residence Inn by Marriott, which had been removed to federal court under the Class Action Fairness Act.
The panel held that when a notice of removal plausibly alleges a basis for federal court jurisdiction, a district court may not remand the case back to state court without first giving the defendant an opportunity to show by a preponderance of the evidence that the jurisdictional requirements were satisfied. Marriott’s notice of removal alleged that the amount in controversy requirement was satisfied, and the district court did not conclude that Marriott’s allegations were implausible. The panel held that by remanding the case to state court sua sponte, the district court deprived Marriott of a fair opportunity to submit proof. The panel concluded that this error warranted vacatur of the remand order.
The panel held that when a defendant’s allegations of removal jurisdiction are challenged, the defendant’s showing on the amount in controversy may rely on reasonable assumptions. The panel held that Marriott’s notice of removal included personnel and payroll data, and with that data, Marriott estimated the amount-in-controversy by making assumptions that were plausible and may prove to be reasonable in light of allegations in the complaint. The panel held that on remand Marriott must show that its estimated amount in controversy relied on reasonable assumptions. The panel held that when a statute or contract provides for the recovery of attorneys’ fees, prospective attorneys’ fees must be included in the assessment of the amount in controversy.
The panel rejected plaintiff’s contention that the position taken by Marriott in its summary judgment motion in state court – that plaintiff’s claims are barred by a release from a prior class action settlement – defeated federal court jurisdiction.
The panel remanded on an open record for the district court to permit the parties to submit evidence and arguments on the amount in controversy.
Thurston v. Midvale Corporation (CA2/8 B291631 9/3/19) ADA/Unruh Act/Web sites
Cheryl Thurston is blind and uses screen reader software (a screen reader) to access the Internet and read website content. She filed this lawsuit after she could not access appellant’s restaurant website, , with her screen reader. Her complaint alleged appellant violated the Unruh Civil Rights Act (Civ. Code, § 51 et seq.) by violating the federal American with Disabilities Act of 1990 (ADA) (42 U.S.C. § 12101 et seq.).
This appeal asks us to decide whether Title III of the ADA applies to this website, requiring appellant Midvale Corporation to render its restaurant website accessible to blind individuals such as Thurston. Accessibility would require Midvale to redesign its website so it can be read aloud by screen reader software. Appellant asks us to adopt the 20-year-old minority position of the United States Court of Appeals for the Third Circuit that the ADA applies to physical barriers to physical places only and to reverse the trial court’s imposition of an injunction and statutory damages and grant of summary judgment in favor of Thurston. We decline to do so.
Appellant raises three other contentions. First, it argues that even if the ADA applies to websites, summary judgment must be reversed because the statutory damages award and the injunction violate its right to due process. Appellant next contends summary judgment must be reversed because there is a triable issue of fact as to whether providing a telephone number and email address is an acceptable alternative to a website accessible by screen readers. Finally, appellant contends the injunction must be dissolved because it is overbroad and uncertain and Thurston lacked standing to claim prospective relief. The claims invoking due process, standing, and overbreadth are claims appellant made in its own unsuccessful cross-motion for summary judgment. We agree with the trial court on all issues and affirm the judgment.
Bills Signed by Governor (8/30/19)
AB 332 by Assemblymember Tom Lackey (R-Palmdale) – Peace officers: training.
AB 595 by Assemblymember Jose Medina (D-Riverside) – Community colleges: apprenticeship programs.
AB 640 by Assemblymember Jim Frazier (D-Discovery Bay) – Sex crimes: investigation and prosecution.
AB 711 by Assemblymember David Chiu (D-San Francisco) – Pupil records: name and gender changes.
AB 1349 by Assemblymember Jay Obernolte (R-Big Bear Lake) – Civil actions: discovery.
AB 1554 by Assemblymember Lorena Gonzalez (D-San Diego) – Employers: dependent care assistance program: notice to employees.
AB 1735 by Assemblymember Rebecca Bauer-Kahan (D-Orinda) – Evidence: privileges: human trafficking caseworker-victim privilege.
AB 1805 by the Committee on Labor and Employment – Occupational safety and health.
SB 370 by Senator Thomas Umberg (D-Santa Ana) – Discovery: response to inspection demands.
SB 778 by the Committee on Labor, Public Employment and Retirement – Employers: sexual harassment training: requirements.
Jeffra v. Cal. State Lottery (CA2/8 B292775 8/29/19) Whistleblower Protection Act/Anti-SLAPP
Plaintiff James Thomas Jeffra was an investigator employed by defendant California State Lottery. He sued defendant, alleging retaliation in violation of the California Whistleblower Protection Act. (Gov. Code, § 8547.8, subd. (c).) He alleged defendant engaged in a pretextual investigation, ultimately forcing him to retire, after he filed a whistleblower complaint with the California State Auditor.
Defendant filed an anti-SLAPP (strategic lawsuit against public participation) motion to strike the complaint (Code Civ. Proc., § 425.16), contending the complaint arose from protected activity, namely, defendant’s investigation of possible misconduct by plaintiff. The trial court denied the motion, finding the complaint arose “from non-protected retaliation, not protected investigations.”
After plaintiff’s ensuing appeal was briefed, the California Supreme Court decided Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871 (Wilson). In Wilson, the court disapproved the precedent on which the trial court here relied, and held that retaliation claims “arise from the adverse actions allegedly taken” – here, the investigation – “notwithstanding the plaintiff’s allegation that the actions were taken for an improper purpose.” (Id. at p. 892.) We conclude, consistent with Wilson, that plaintiff’s complaint arose from protected activity.
The trial court did not consider whether plaintiff had established a probability of prevailing on the merits of his claim. Giving “careful attention to the limited nature of a plaintiff’s second-step showing” (Wilson, supra, 7 Cal.5th at p. 892), we conclude plaintiff has made the necessary showing. Consequently, we affirm the trial court’s order denying the anti-SLAPP motion.
OTO, L.L.C. v. Kho (SC S244630 8/29/19) Arbitration
Here, we again consider the enforceability of an agreement requiring arbitration of wage disputes. Sonic-Calabasas A, Inc. v. Moreno (2011) 51 Cal.4th 659 (Sonic I) concluded that such arbitration agreements are categorically unconscionable because workers waive their statutory rights to a “Berman hearing” and related procedures designed to assist in the recovery of unpaid wages. (See Lab. Code, § 98 et seq.) Rather than invalidating the entire agreement, however, Sonic I held that while Berman protections could not be waived, any party dissatisfied with the Berman hearing’s result could move the dispute to arbitration. (Sonic I, at pp. 669, 675.) The United States Supreme Court vacated that judgment and remanded for consideration in light of AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 333 (Concepcion). Thereafter, we determined Sonic I’s categorical rule of unconscionability was preempted by the Federal Arbitration Act (FAA; 9 U.S.C. § 1 et seq.). (Sonic-Calabasas A, Inc. v. Moreno (2013) 57 Cal.4th 1109, 1146 (Sonic II).) We held instead that an arbitration agreement is not categorically unconscionable solely because it entails a waiver of the Berman procedure. An agreement to arbitrate wage disputes can be enforceable so long as it provides an accessible and affordable process for resolving those disputes. (Id. at p. 1146.)
We originally granted review in this case to decide whether an arbitral scheme resembling civil litigation can constitute a sufficiently accessible and affordable process. Because the facts here involve an unusually high degree of procedural unconscionability, however, a definitive resolution of that specific question is unnecessary. Even if a litigation-like arbitration procedure may be an acceptable substitute for the Berman process in other circumstances, an employee may not be coerced or misled into accepting this trade. Considering the oppressive circumstances present here, we conclude the agreement was unconscionable, rendering it unenforceable.
Franco v. Greystone Ridge Condominium (CA4/3 G056559, filed 8/14/19, pub. ord. 8/27/19) Arbitration
In March 2018, employees of defendant Greystone Ridge Condominium (Greystone), including plaintiff Victor M. Quiroz Franco (plaintiff), were presented with and asked to sign an agreement requiring that each employee agree to submit to final and binding arbitration “[a]ny and all claims . . . relating to any aspect of . . . employment with Employer (pre-hire through post-termination).” About 10 days later, plaintiff filed a complaint against Greystone, C & A Services, John Stokke, and Maher A.A. Azer (defendants) asserting employment-related claims. Two days after that, plaintiff signed the arbitration agreement and returned it to Greystone. Defendants filed a motion to compel arbitration of plaintiff’s claims which plaintiff opposed on the ground the arbitration agreement failed to expressly state that claims that had already accrued, including the claims asserted in plaintiff’s complaint, were subject to arbitration. The trial court agreed with plaintiff and denied the motion to compel arbitration.
We reverse. The parties’ arbitration agreement is clear, explicit, and unequivocal with regard to the claims subject to it and contains no qualifying language limiting its applicability to claims that had yet to accrue. On the contrary, the agreement’s reference to claims relating to “pre-hire” matters expresses an intent to cover all claims, regardless of when they accrued, that are not otherwise expressly excluded by the arbitration agreement.
Rodriguez v. Workers' Comp. Appeals Bd. (CA6 H045698 8/27/19) Disability Retirement
Petitioner Josafat Rodriguez, Jr. is a veteran of the Gulf War, and served as a police officer for the City of Santa Cruz (“City”) from 1995 until 2007. He applied for industrial disability retirement in 2011 with the California Public Employee’s Retirement System (“PERS” or “CalPERS”) based on his diagnosis of Post-Traumatic Stress Disorder (“PTSD”) that was caused in part by his work for the City.
The City disputed whether Rodriguez was entitled to disability retirement through six- and one-half years of litigation resulting in two opinions from this Court that ultimately confirmed Rodriguez’s right to the retirement allowance. (Rodriguez v. City of Santa Cruz (2014) 227 Cal.App.4th 1443 (Rodriguez I); Rodriguez v. City of Santa Cruz (Sept. 22, 2016, H042280) [nonpub. opn.] (Rodriguez II).)
Following this Court’s decision in Rodriguez II, the City granted Rodriguez disability retirement, but denied his claim of industrial causation, and he began to receive benefits on December 1, 2016. Rodriguez then requested a finding that his disability was industrial from the Workers’ Compensation Appeals Board (“WCAB” or “Board”) on April 25, 2017. The Board concluded that Rodriguez’s disability was industrial, but that he was barred from receiving industrial disability retirement benefits because his claim for a finding of industrial causation was untimely under the five-year time limitation set forth in Government Code section 21171.
We find that Rodriguez’s claim for industrial causation was timely. We therefore annul the Board’s decision.
Assn. for L.A. Deputy Sheriffs v. Superior Court (SC S243855 8/26/19) Brady List/Pitchess Motion
This case concerns the relationship between prosecutors’ constitutional duty to disclose information to criminal defendants and a statutory scheme that restricts prosecutors’ access to some of that information.
A prosecutor in a criminal case must disclose to the defense certain evidence that is favorable to the accused. (Brady v. Maryland (1963) 373 U.S. 83 (Brady).) This duty sometimes requires disclosure of evidence that will impeach a law enforcement officer’s testimony. (Giglio v. United States (1972) 405 U.S. 150, 154-155 (Giglio).) Such disclosure may be required even if the prosecutor is not personally aware that the evidence exists. (Kyles v. Whitley (1995) 514 U.S. 419, 437 (Kyles).) Because the duty to disclose may sweep more broadly than the prosecutor’s personal knowledge, the duty carries with it an obligation to “learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police.” (Ibid.) The so-called Pitchess statutes, however, restrict a prosecutor’s ability to learn of and disclose certain information regarding law enforcement officers. (See Pitchess v. Superior Court (1974) 11 Cal.3d 531; see also Johnson v. Superior Court (2015) 61 Cal.4th 696, 712-714 (Johnson).) Most notably, Penal Code section 832.7 renders confidential certain personnel records and records of citizens’ complaints, as well as information “obtained from” those records. (Pen. Code, § 832.7, subd. (a) (section 832.7(a)).) Upon a motion showing good cause, a litigant may obtain a court’s in camera inspection of the confidential information and, possibly, win the information’s disclosure. But the less reason there is to believe that an officer has engaged in misconduct, the harder it is to show good cause.
In part to address this issue, some law enforcement agencies have created so-called Brady lists. These lists enumerate officers whom the agencies have identified as having potential exculpatory or impeachment information in their personnel files — evidence which may need to be disclosed to the defense under Brady and its progeny. (See Brady, supra, 373 U.S. at p. 87.) Disclosure of the fact that an officer is on a Brady list both signals that it may be appropriate to file a motion seeking in camera inspection and helps to establish good cause for that inspection. We recently described this Brady-alert practice as “laudabl[e].” (Johnson, supra, 61 Cal.4th at p. 721.)
Petitioner in this case is the Association for Los Angeles Deputy Sheriffs. The Association obtained a preliminary injunction preventing the Los Angeles County Sheriff’s Department from disclosing the identity of deputies on the Department’s Brady list. The injunction included an exception, permitting disclosure to prosecutors when a deputy is a potential witness in a pending prosecution. The Court of Appeal held that the exception is impermissible under the Pitchess statutes. We granted review to decide the following question: “When a law enforcement agency creates an internal Brady list [citation], and a peace officer on that list is a potential witness in a pending criminal prosecution, may the agency disclose to the prosecution (a) the name and identifying number of the officer and (b) that the officer may have relevant exonerating or impeaching material in [that officer’s] confidential personnel file . . . ?” We conclude that the Pitchess statutes permit such disclosure.
Ray v. County of Los Angeles (9th Cir. 17-56581, 18-55276 8/22/19) FLSA/Eleventh Amendment Immunity
The panel affirmed the district court’s order denying a defendant county’s motion to dismiss, on Eleventh Amendment immunity grounds, a putative collective action under the Fair Labor Standards Act; reversed the district court’s order regarding the putative collective period; and remanded.
Plaintiff homecare providers were employed through California’s In-Home Supportive Services program, which is implemented and run by the State and its counties. In October 2013, the Department of Labor promulgated a new rule providing that homecare providers would be entitled to overtime pay under the FLSA. The final rule had an effective date of January 1, 2015. In 2014, the District Court for the District of Columbia vacated the rule. On August 21, 2015, the D.C. Circuit reversed and ordered the district court to enter summary judgment for the Department of Labor. On September 14, 2015, the Department of Labor announced that it would not bring enforcement actions against any employer for violations of the new rule for 30 days after issuance of the mandate of the D.C. Circuit. On October 27, 2015, the Department of Labor said it would not begin enforcing the new rule until November 12, 2015. The State began paying overtime wages on February 1, 2016.
Affirming in part, the panel held that the County of Los Angeles was not entitled to Eleventh Amendment immunity. The panel assumed without deciding that a county might be entitled to immunity if acting as an arm of the state. The panel held that, under the five-part Mitchell test, the County was not an arm of the State when it administered the IHSS program because the state-treasury factor, which is the most important, and all but one of the other Mitchell factors weighed against immunity. The panel held that a later Supreme Court case, Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30 (1994), did not undermine Mitchell such that it should be overruled.
Reversing in part, the panel held that the effective date of the Department of Labor’s rule was January 1, 2015, because the legal effect of the D.C. Circuit’s vacatur was to reinstate the original effective date. The panel held that the Department of Labor’s choice against enforcing the rule until November 12, 2015, did not eliminate the availability of private rights of action until that date. Accordingly, the beginning of the putative collective period was January 1, 2015.
Valtierra v. Medtronic (9th Cir. 17-15282 8/20/19) ADA/Obesity/Causal Relationship
The panel affirmed the district court’s grant of summary judgment in favor of the defendant in an employment discrimination action under the Americans with Disabilities Act.
Plaintiff claimed he was terminated from his employment on account of his morbid obesity, which the district court held was not a physical impairment and could not constitute a disability unless it was caused by an underlying physiological condition. Therefore, plaintiff could not establish disability discrimination.
The panel affirmed on other grounds, holding that, even if plaintiff’s obesity were an impairment under the ADA, or he suffered from a disabling knee condition that the district court could have considered, he could not show a causal relationship between these impairments and his termination.
Murray v. Mayo Clinic (9th Cir. 17-16803 8/20/19) Disability Discrimination/ADA Title I/but for causation standard
The panel affirmed the district court’s judgment, after a jury trial, in favor of the defendants in an employment discrimination action under Title I of the Americans with Disabilities Act.
The panel held that the district court correctly instructed the jury to apply a but for causation standard, rather than a motivating factor standard. The panel concluded that Head v. Glacier Northwest, Inc., 413 F.3d 1053 (9th Cir. 2005), holding that ADA discrimination claims are evaluated under a motivating factor causation standard, is no longer good law because its reasoning is clearly irreconcilable with the Supreme Court’s rulings in Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009), and Univ. of Texas Southwestern Med. Ctr. v. Nassar, 570 U.S. 338 (2013). Agreeing with other circuits, the panel held that an ADA discrimination plaintiff bringing a claim under 42 U.S.C. § 12112 must show that the adverse employment action would not have occurred but for the disability.
The panel addressed other issues in a simultaneously filed memorandum disposition.
Dorman v. Charles Schwab Corp. (9th Cir. 18-15281 8/20/19) ERISA
The panel reversed the district court’s order denying defendants’ motion to compel arbitration of claims and remanded in a class action suit brought by a former participant in an ERISA retirement plan, alleging that defendants violated ERISA and breached their fiduciary duties by including certain investment funds in the plan.
The panel concluded that Amaro v. Continental Can Co., 724 F.2d 747 (9th Cir. 1984), which held that ERISA claims are not arbitrable, is no longer good law in light of intervening Supreme Court case law, including American Express Co. v. Italian Colors Restaurant, 570 U.S. 228 (2013).
The panel addressed other issues in a concurrently filed memorandum disposition.
Tijerino v. Stetson Desert Project (9th Cir. 18-16013 8/16/19) FLSA/Employee Status
The panel reversed the district court’s dismissal for lack of subject-matter jurisdiction of an action brought under the Fair Labor Standards Act and Arizona state law by a group of exotic dancers against the club at which they worked.
The district court held that it lacked jurisdiction because the dancers did not prove at the outset of the case that they were employees rather than independent contractors. Reversing, the panel held that the statutory requirement that plaintiffs must be employees as defined in the FLSA is a merits-based determination, not a jurisdictional limitation. Further, the dancers’ complaints sufficiently alleged substantial issues of federal law. The panel remanded the case for further proceedings.
O’Rourke v. N. Cal. Elec. Workers Pension (9th Cir. 17-17419 8/16/19) ERISA
The panel affirmed the district court’s grant of summary judgment in an ERISA action challenging the denial of plaintiff’s request for early retirement benefits.
Plaintiff accrued benefits through a multiemployer ERISA plan during his work as an electrician. When he left this position to work for an electrical workers’ union as an administrator, he sought early retirement benefits from the plan. The plan’s board of trustees decided that plaintiff’s union work fell within the plan’s definition of “prohibited employment,” and so no benefits were due for any month in which he engaged in that work.
Reviewing the denial of benefits for an abuse of discretion, the panel held that any procedural irregularities in the actions of the board were minor and, at most, weighed only slightly and weakly in favor of holding that an abuse of discretion occurred. The panel held that the board did not abuse its discretion in interpreting the plan’s definition of prohibited employment to include plaintiff’s union work because the board’s interpretation did not clearly conflict with the plan’s plain language, did not render any other plan provision nugatory, and did not lack a rational nexus to the plan’s purpose.
Senne v. Kansas City Royals Baseball (9th Cir. 17-16245, 17-16267, 17-16276, 8/16/19) FLSA Class and Collective Certification
The panel affirmed in part and reversed in part the district court’s orders certifying a class and a collective action for wage-and-hour claims brought by minor league baseball players under the Fair Labor Standards Act and state law.
The district court certified a California class under Federal Rule of Civil Procedure 23(b)(3) but denied certification for Arizona and Florida classes and for a Rule 23(b)(2) class. The district court also certified an FLSA collective.
The panel held that, as to the state law claims, California choice-of-law rules applied. The panel held that under Sullivan v. Oracle Corp., 254 P.3d 237 (Cal. 2011), California law applied to the Rule 23(b)(3) California class. The panel reversed the district court’s determination that choice-of-law considerations defeated the predominance and adequacy requirements for the proposed Arizona and Florida Rule 23(b)(3) classes. Applying California’s three-step governmental interest analysis for choice-of-law questions, the panel concluded that Arizona law should apply to the work performed in Arizona, and Florida law to the work performed in Florida. The panel reversed the district court’s refusal to certify a Rule 23(b)(2) class for unpaid work at defendants’ training facilities in Arizona and Florida on the basis that choice-of-law issues undermined “cohesiveness” and therefore made injunctive and declaratory relief inappropriate. The panel concluded that the district court’s errors in its choice-of-law analysis relating to the proposed Arizona and Florida Rule 23(b)(3) classes applied equally to its refusal to certify the Rule 23(b)(2) class. The panel further held that the district court erred in imposing a “cohesiveness” requirement for the proposed Rule 23(b)(2) class. The panel remanded for the district court to consider anew whether to certify the Rule 23(b)(2) class.
The panel held that plaintiffs could meet the predominance requirement for the proposed California, Florida, and Arizona Rule 23(b)(3) classes through a combination of representative evidence and application of the “continuous workday” rule. The panel applied the Mt. Clemens burden-shifting framework and the holding of Tyson Foods v. Bouaphakeo, 136 S. Ct. 1036 (2016), that representative evidence may be used at the class certification stage and may be used to establish liability in addition to damages. The panel explained that the continuous workday rule presumes that once the beginning of the workday is triggered, an employee performs compensable work throughout the rest of the day until the employee completes their last principal activity. Any activity that is “integral and indispensable” to principal activities triggers the beginning of the workday. As to the Arizona and Florida classes, covering alleged minimum wage violations in the lack of any pay for time spent participating in spring training, extended spring training, and instructional leagues, the panel affirmed the determination that the predominance requirement was met. As to the California class, covering overtime and minimum wage claims relating to work performed during the championship season, the panel held that the district court did not abuse its discretion in concluding that defendants’ uniform pay policy, the team schedules, and representative evidence, including an expert survey known as the “Main Survey,” established predominance. The panel held that the district court was not required to “rigorously analyze” the Main Survey, rather than evaluating its admissibility under Daubert and its appropriateness for meeting class certification requirements under Tyson.
Affirming the district court’s certification of the FLSA collective action, the panel applied the standard set forth in Campbell v. City of L.A., 903 F.3d 1090 (9th Cir. 2018), which postdated the district court’s ruling, and held that the district court’s use of the ad hoc approach was harmless error. The panel concluded that collective certification was proper because plaintiffs shared similar issues of law or fact material to the disposition of their FLSA claims and thus were similarly situated.
The panel affirmed the district court’s certification of the California Rule 23(b)(3) class and the FLSA collective action, reversed the district court’s refusal to certify Arizona and Florida classes and a Rule 23(b)(2) class, and remanded for further proceedings.
Dissenting, Judge Ikuta wrote that the district court correctly concluded that consideration of plaintiffs’ claims on a classwide basis would be overwhelmed by individualized choice-of-law inquiries. She wrote that the majority’s rule, applying the law of the jurisdiction where the work took place, was contrary to the court’s framework for analyzing the intersection of class action and choice-of-law issues, overlooked the complexity of California’s choice-of-law rules, and created significant practical and logistical problems.
Voris v. Lampert SC (S241812 8/15/19) Conversion/Payment of Wages
For a little more than a year, Brett Voris worked alongside Greg Lampert to launch three start-up ventures, partly in return for a promise of later payment of wages. But after a falling out, Voris was fired and the promised compensation never materialized. Voris sued the companies and won, successfully invoking both contract-based and statutory remedies for the nonpayment of wages. He now seeks to hold Lampert personally responsible for the unpaid wages on a theory of common law conversion. Voris claims that by failing to pay the wages, the companies converted his personal property to their own use and that Lampert is individually liable for the companies’ misconduct. The question before us is whether such a conversion claim is cognizable. We conclude it is not: The conversion tort is not the right fit for the wrong that Voris alleges, nor is it the right fix for the deficiencies Voris perceives in the existing system of remedies for wage nonpayment. We affirm the judgment of the Court of Appeal, which reached a similar conclusion.
Clifford v. Quest Software Inc. (CA4/3 G055858, filed 7/23/19, ord. pub. 8/14/19) Arbitration/Unfair Competition Law
The question posed in this appeal is whether an employee’s claim against his employer for unfair competition under Business and Professions Code section 17200 (the UCL) is arbitrable. The employee brought various wage and hour claims against his employer, and the employer moved to compel arbitration based on the parties’ arbitration agreement. The trial court granted the motion in part and ordered to arbitration every cause of action except the employee’s UCL claim, which the court concluded was not arbitrable. In so ruling, the court cited without discussion our Supreme Court’s holding in Cruz v. PacifiCare Health Systems, Inc. (2003) 30 Cal.4th 303 (Cruz).
We reverse that portion of the trial court’s order. Assuming Cruz remains good law — a question we need not answer here — Cruz at most stands for the proposition that UCL claims for “public” injunctive relief are not arbitrable. (Cruz, supra, at pp. 315-316.) Cruz does not bar arbitration of a UCL claim for private injunctive relief or restitution, which is precisely what the UCL claim here seeks. The employee’s UCL claim therefore is subject to arbitration, along with his other causes of action.
Mejia v. Merchants Building Maintenance (CA4/1 D074620 8/13/19) PAGA/Arbitration
Defendants Merchants Building Maintenance, LLC and Merchants Building Maintenance Company (the MBM defendants) appeal from an order of the trial court denying their joint motion to compel arbitration. The MBM defendants moved to compel arbitration of a portion of plaintiff Loren Mejia's cause of action brought against them for various violations of the Labor Code under the Private Attorneys General Act of 2004 (PAGA) (Lab. Code, § 2698 et seq.).
Pursuant to PAGA, "an 'aggrieved employee' may bring a civil action personally and on behalf of other current or former employees to recover civil penalties for Labor Code violations. (Lab. Code, § 2699, subd. (a).)" (Arias v. Superior Court (2009) 46 Cal.4th 969, 980 (Arias).) A PAGA claim "is not a dispute between an employer and an employee arising out of their contractual relationship. It is a dispute between an employer and the state, which alleges directly or through its agents—either the [Labor and Workforce Development] Agency or aggrieved employees—that the employer has violated the Labor Code." (Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 386–387 (Iskanian).) In Iskanian, the Supreme Court held that individual employees cannot contractually agree to arbitrate or waive any predispute PAGA claims, but they may agree to arbitrate their "individual damages claims." (Iskanian, supra, at p. 387.)
The MDM defendants moved to compel arbitration of that portion of Mejia's PAGA claim in which she seeks "an amount sufficient to recover underpaid wages" pursuant to section 558. Section 558 provides in relevant part:
"(a) Any employer or other person acting on behalf of an employer who violates, or causes to be violated, a section of this chapter or any provision regulating hours and days of work in any order of the Industrial Welfare Commission shall be subject to a civil penalty as follows:
"(1) For any initial violation, fifty dollars ($50) for each underpaid employee for each pay period for which the employee was underpaid in addition to an amount sufficient to recover underpaid wages.
"(2) For each subsequent violation, one hundred dollars ($100) for each underpaid employee for each pay period for which the employee was underpaid in addition to an amount sufficient to recover underpaid wages.
"(3) Wages recovered pursuant to this section shall be paid to the affected employee.
"[¶] . . . [¶]
"(d) The civil penalties provided for in this section are in addition to any other civil or criminal penalty provided by law." (§558, subds. (a), (d).)
The MBM defendants contend that Mejia's claim to recover the portion of the penalty under section 558 that represents underpaid wages amounts to a claim for individual damages because it seeks "victim-specific relief," given that section 558 provides that any amount recovered representing the amount of underpaid wages are to be directed to "the affected employee." The MBM defendants further contend that because Mejia agreed to arbitrate any individual claim that she may have to her unpaid wages, any claim that she asserts seeking the amount that is sufficient to recover underpaid wages under section 558 must be separated from the remainder of the PAGA claim and sent to arbitration. The MBM defendants maintain that only that portion of Mejia's claim brought pursuant to section 558 in which she seeks to recover the $50 or $100 per violation per employee civil penalty on behalf of herself and other aggrieved employees may be brought by an individual plaintiff as a representative PAGA claim that is not subject to arbitration.
The question presented in this case has been framed by other courts as a question as to whether a single PAGA claim seeking recovery of the civil penalty provided for in section 558 may be "split" in the way that the MBM defendants suggest. In other words, may a court split a single PAGA claim so as to require a representative employee to arbitrate that aspect of the claim in which the plaintiff seeks to recover the portion of the penalty that represents the amount sufficient to recover underpaid wages where the representative employee has agreed to arbitrate her individual wage claims, while at the same time retain in the judicial forum that aspect of the employee's claim in which the plaintiff seeks to recover the additional $50 or $100 penalties provided for in section 558 for each violation of the wage requirements? Appellate courts are divided on this question. (Compare Esparza v. KS Industries, L.P. (2017) 13 Cal.App.5th 1228 [concluding that claim for unpaid or underpaid wages under section 558 involves "victim-specific relief" and is subject to arbitration where employee has agreed to arbitrate private claims] with Lawson v. ZB, N.A. (2017) 18 Cal.App.5th 705, 724 (Lawson) [concluding that court may not split a PAGA claim seeking recovery of civil penalties under section 558 in order to send the portion seeking section 558 unpaid or underpaid wages penalties to arbitration because section 558 provides "no private right of action and by its terms is only enforceable by the LWDA"] and Zakaryan v. The Men's Wearhouse, Inc. (2019) 33 Cal.App.5th 659, 672 (Zakaryan) [concluding that court may not split a PAGA claim seeking recovery of civil penalties under section 558 in order to send the portion seeking section 558 underpaid wages penalties to arbitration because "an individual PAGA plaintiff is at all times acting on behalf of the [Labor and Workforce Development Agency (the Agency)] when seeking underpaid wages as well as the $50/$100 penalty," such that "his pursuit of both remedies 'involv[es] the same parties seek[ing] compensation for the same harm' and thus involves 'the same primary right' "].) The issue is pending before the Supreme Court in Lawson, supra, review granted Mar. 21, 2018, S246711.
We agree with the conclusion of the Lawson and Zakaryan courts on this question, and conclude that a single PAGA claim seeking to recover section 558 civil penalties may not be "split" between that portion of the claim seeking an "amount sufficient to recover underpaid wages" and that portion of the claim seeking the $50 or $100 per-violation, per-pay-period assessment imposed for each wage violation. The result is that an employee bringing a PAGA claim to recover the civil penalties identified in section 558 may not be compelled to arbitrate that portion of her PAGA claim that seeks an amount sufficient to recover underpaid wages pursuant to that statute, while the rest of the claim that seeks the $50 or $100 per-pay-period per violation portion of the penalty remains in a judicial forum. We therefore affirm the trial court's order denying the MDM defendants' motion to compel arbitration in this case.
Dawson v. NCAA (9th Cir. 17-15973 8/12/19) Employment Status of NCAA Student Athletes/FLSA and CA Labor Code
The panel affirmed the district court’s dismissal of a Division I college football player’s claim that he was an employee of the National Collegiate Athletic Association and the PAC-12 Conference within the meaning of the Fair Labor Standards Act and California labor law and thus entitled to minimum wage and overtime pay. The panel held that Division I football players were not employees of the NCAA or PAC-12 as a matter of federal law because the economic reality of the relationship between the NCAA/PAC-12 and student-athletes did not reflect an employment relationship.
The panel concluded that NCAA regulations providing a limitation on scholarships did not create any expectation of compensation; plaintiff could not demonstrate that the NCAA or the PAC-12 had the power to fire or hire him; and there was no evidence that the NCAA rules were conceived or carried out to evade the law. Further, the revenue generated by college sports did not convert the relationship between student-athletes and the NCAA into an employment relationship. Thus, the NCAA and Pac-12 were regulatory bodies, not employers of student-athletes under the Fair Labor Standards Act.
The panel also affirmed the district court’s dismissal for failure to state a claim of plaintiff’s California law claims. The panel held that the district court properly relied on a legislative exception for student-athletes from workers compensation benefits and the California courts’ interpretation of this exception. The panel held that, under the California Labor Code, student-athletes were not employees of the NCAA/PAC-12.
White v. Square, Inc. (SC S249248 per curiam 8/12/19) Unruh Act/Arbitrary Discrimination/Standing to Sue Online Business
Here we consider a question regarding California’s Unruh Civil Rights Act (Civ. Code, § 51 et seq.) (the Act) posed by the United States Court of Appeals for the Ninth Circuit: Does a plaintiff have standing to bring a claim under the Unruh Civil Rights Act when the plaintiff visits a business’s website with the intent of using its services, encounters terms and conditions that allegedly deny the plaintiff full and equal access to its services, and then leaves the website without entering into an agreement with the service provider? (See White v. Square, Inc. (9th Cir. 2018) 891 F.3d 1174, 1175; Cal. Rules of Court, rule 8.548, (a) & (f)(5).)
The answer is yes. When a plaintiff has visited a business’s website with intent to use its services and alleges that the business’s terms and conditions exclude him or her from full and equal access to its services, the plaintiff need not enter into an agreement with the business to establish standing under the Unruh Civil Rights Act. In general, a person suffers discrimination under the Act when the person presents himself or herself to a business with an intent to use its services but encounters an exclusionary policy or practice that prevents him or her from using those services. We conclude that this rule applies to online businesses and that visiting a website with intent to use its services is, for purposes of standing, equivalent to presenting oneself for services at a brick-and-mortar store. Although mere awareness of a business’s discriminatory policy or practice is not enough for standing under the Act, entering into an agreement with the business is not required. We express no view on White’s occupational discrimination claims.
Blaser v. State Teachers' Retirement System (CA6 H045071M mod. 8/6/19) Pension Overpayments
It is ordered that the opinion filed on July 10, 2019, be modified as follows:
On page 22, footnote 13, at the end of the last sentence, add the following: Since Teachers did not challenge in the trial court the substance of the final audit’s conclusion that the District had incorrectly reported CalSTRS members’ sixth-period compensation as DB-creditable, and since Teachers in the trial court had the full opportunity to assert such substantive challenge, they no longer have any right (assuming they did prior to resolution of their petition) to challenge the audit’s conclusion in an administrative appeal.
On page 22, footnote 14, delete the second sentence, and replace it with the following: In its tentative decision, the trial court recognized Teachers’ due process claim and the fact that they sought a new hearing to contest the audit. The court acknowledged further that it was CalSTRS’s position that “it followed all applicable audit procedures” and contended “that it is impractical for it to afford members who were not part of a limited audit sample the opportunity to object to a long-completed audit.” The trial court decided that its ultimate determination that CalSTRS’s claim was time-barred “render[ed] consideration of [these] issue[s] unnecessary.”
On page 35, first paragraph, delete the first two sentences of the including the citation to In re Marriage of King and footnote 22.
On page 35, second paragraph, delete the third sentence, including the citation to two cases, and replace it with the following: On remand, the trial court may, upon request, address whether Teachers are entitled to assert laches and/or estoppel, and, in the event it determines Teachers may do so, whether laches and/or estoppel serve as a bar to the assertion by CalSTRS of claims related to overpayments.
On page 35, third paragraph, under the heading “IV. DISPOSITION,” after the first sentence, and after deletion of “The” at the beginning of the second sentence, insert the following: Thecase is remanded to the trial court. Upon request, the trial court shall consider whether Teachers may assert laches and/or estoppel as a defense to claims by CalSTRS related to overpayments where such claims are not otherwise barred by the three-year statute of limitations. If, upon such request, the court concludes that Teachers may assert laches and/or estoppel, the court may then proceed to determine whether under such doctrine(s), CalSTRS is precluded from asserting claims related to overpayments not otherwise time-barred. If the court concludes that such doctrine(s) does/do apply, it shall enter a new a different judgment accordingly. If the court concludes that Petitioners may not assert laches and/or estoppel, or if it concludes that the doctrine(s) does not/do not apply, the
The petition for rehearing filed on behalf of respondents Steven B. Blaser et al. is denied.
There is no change in the judgment.
Cole v. CRST Van Expedited (9th Cir. 17-55606 8/1/19) Meal and Rest Breaks/Policy and Recordkeeping
Certified Question to California Supreme Court
The panel certified the following questions of state law to the California Supreme Court:
Does the absence of a formal policy regarding meal and rest breaks violate California law?
Does an employer’s failure to keep records for meal and rest breaks taken by its employees create a rebuttable presumption that the meal and rest breaks were not provided?
Scott v. City of San Diego (CA4/1 D074061 8/1/19) Prevailing FEHA Defendant/998 Offer
In 2015, San Diego Police Department Sergeant Arthur Scott sued the City of San Diego (City), alleging race discrimination and retaliation in violation of the Fair Employment and Housing Act (Gov. Code, § 12900 et seq. (FEHA)). Scott rejected a $7,000 offer to compromise made by the City under Code of Civil Procedure section 998 and proceeded to trial, where the City prevailed. The trial court awarded the City a total of $51,946.96 in costs incurred after it served its Code of Civil Procedure section 998 offer, even though the trial court had found that plaintiff's FEHA claims were not frivolous. While this appeal was pending, the Legislature amended FEHA's cost provision statute to specifically state that, notwithstanding section 998 of the Code of Civil Procedure, a prevailing defendant may not recover attorney fees and costs against a plaintiff asserting non-frivolous FEHA claims. (See Gov. Code, § 12965, subd. (b), as amended by Stats. 2018, ch. 955, § 5, eff. Jan. 1, 2019.) We conclude that, with this amendment, the Legislature sought to clarify existing law, rather than to change it. "A statute that merely clarifies, rather than changes, existing law is properly applied to transactions predating its enactment." (Carter v. California Dept. of Veterans Affairs (2006) 38 Cal.4th 914, 922 (Carter).) We therefore apply the amended statute here and reverse the trial court's award of costs to the City.
Lacayo v. Catalina Restaurant Group Inc. (CA4/2 E069833 8/1/19) Arbitration
Defendants and appellants Catalina Restaurant Group, Inc., Carrows Restaurants, Inc., Carrows Family Restaurants, Inc., Coco’s Bakery Restaurants, Inc. and Coco’s Restaurants, Inc. (collectively, Catalina Defendants) appeal the partial denial of their motion to compel arbitration. Plaintiff and respondent Yalila Lacayo (Lacayo) was an employee of Catalina Defendants. Lacayo filed her plaintiff’s class action complaint on behalf of herself and others similarly situated (Class Members) against Catalina Defendants in superior court (Complaint) alleging numerous wage and hour violations under the Labor Code, and an injunctive relief claim under California’s unfair competition law (UCL). (Bus. & Prof. Code, § 17200 et seq.) Catalina Defendants responded by filing a motion to compel arbitration of Lacayo’s individual claims, including the UCL claim, and dismissal of the class claims (Motion). The trial court granted the Motion as to Lacayo’s individual claims; refused to dismiss the class claims, instead letting the arbitrator decide if the class claims were subject to arbitration or a class action waiver; and denied the Motion as to the UCL claim; and stayed the matter until after arbitration was completed.
Catalina Defendants on appeal contend the trial court erred by (1) refusing to enforce the individual arbitration agreement according to its terms; and (2) refusing to compel arbitration of Lacayo’s UCL claim. In supplemental briefing, both parties addressed whether Catalina Defendants could appeal the trial court’s order granting arbitration of individual claims but refusing to dismiss the classwide claims, leaving the decision for the arbitrator. We find Catalina Defendants cannot appeal the portion of the Motion that granted arbitration for Lacayo’s individual claims and the refusal to dismiss the class claims. This court need only address the order finding that the UCL claim was not subject to arbitration.
Robles v. Employment Development Dept. (CA1/4 A148803 7/31/19) Unemployment Benefits
This is the third chapter in our appellate review of this controversy, which involves the wrongful denial of unemployment benefits by respondents Employment Development Department (EDD) and the California Unemployment Insurance Board (Board). After both EDD and the Board rejected a claim for unemployment benefits filed by Jose Robles—and the trial court denied Robles’s petition for writ of mandate challenging this administrative decision—we issued our first opinion in the matter, concluding that Robles was entitled to unemployment benefits as a matter of law. (See Robles v. Employment Development Dept. (2012) 207 Cal.App.4th 1029 (Robles I).) Three years later, EDD continued to refuse to award Robles all of the benefits to which he would have been entitled absent its error, despite multiple court orders that it do so. As a result, we filed a second opinion, upholding the trial court’s order demanding immediate payment by EDD to Robles of all withheld benefits, costs, and interest. (See Robles v. Employment Development Dept. (2015) 236 Cal.App.4th 530 (Robles II).)
After EDD paid the amounts due, Robles filed a motion in the trial court for attorney fees under California’s private attorney general statute, Code of Civil Procedure section 1021.5 (section 1021.5). He now appeals the trial court’s order denying in part his fee request. Because we agree with Robles that the trial court improperly limited the scope of permissible fees in this case to those incurred solely in connection with the Robles II litigation, we affirm in part, reverse in part, and remand for further proceedings in accordance with this opinion.
Bill Signed by Governor (7/31/19)
AB 1019 by Assemblymember Jim Frazier (D-Discovery Bay) – Apprenticeship: developmentally disabled persons.
L'Chaim House, Inc. v. Div. of Labor Standards Enforcement (CA1/1 A152975 7/31/19) Meal Breaks/Wage Order 5
Plaintiffs L’Chaim House, Inc. and its owner, Cary Kopstein (collectively, L’Chaim), operate residential care homes for seniors. L’Chaim was cited for wage and hour violations by defendant Division of Labor Standards Enforcement (DLSE). After an unsuccessful administrative appeal, L’Chaim initiated this action by filing a petition for a writ of administrative mandamus under Code of Civil Procedure section 1094.5, which the trial court denied.
On appeal, L’Chaim claims that under the applicable Industrial Welfare Commission (IWC) wage order, it may require its employees to work “on-duty” meal periods that, unlike periods when employees are “relieved of all duty,” do not need to be at least 30 minutes long. (IWC wage order No. 5-2001 (Cal. Code Regs., tit. 8, § 11050) (hereafter Wage Order No. 5), subd. (11)(A), (E).) We hold that, to the contrary, L’Chaim must provide meal periods of at least 30 minutes, regardless of whether they are on-duty or off-duty, under Wage Order No. 5 and the applicable statutory law. We therefore affirm.
Bills Signed by Governor (7/30/19)
SB 30 by Senator Scott Wiener (D-San Francisco) – Domestic partnership.
SB 41 by Senator Robert Hertzberg (D-Van Nuys) – Civil actions: damages.
SB 173 by Senator Bill Dodd (D-Napa) – CalFresh: postsecondary student eligibility: workstudy.
SB 366 by Senator Ling Ling Chang (R-Diamond Bar) – Public postsecondary education: mandatory orientation for students.
SB 544 by Senator Thomas Umberg (D-Santa Ana) – State Bar: admission: license: moral character review: mental health medical records.
SB 652 by Senator Ben Allen (D-Santa Monica) – Entry doors: display of religious items: prohibitions.