top of page


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.


(See prior archived alerts by clicking on "Blog" under menu. For alerts older than one year, please request under "Contact" tab.)


Schmidt v. Super. Ct. (CA2/8 B291385 1/22/20) Sexual Harassment/Substantial Evidence


Two court employees alleged a security guard named David Jacques sexually harassed them with his metal detecting wand during the courthouse entry screening process.  All security screening was in public and on video.  None of the video supported the allegations.  After a lengthy bench trial, the trial court ruled the plaintiffs had not proved their allegations.  The employees appeal, primarily targeting the trial court’s decision not to credit testimony favorable to them.  We affirm because substantial evidence supports the trial court’s fact finding.  The employees also unsuccessfully argue the judge was biased against them.

Techno Lite v. EMCOD  (CA2/4 B284989 1/21/20) Trade Secrets/Interference with Contractual Relations and Prospective Economic Advantage


Appellants Scott Drucker and Arik Nirenberg worked for respondent Techno Lite, a company engaged in selling lighting transformers that was previously owned by Neil Olshan and respondents Stefan Poenitz and David Tour.  While Drucker and Nirenberg worked for Techno Lite, they also ran their own company, appellant Emcod, LLC.  Though Emcod also sold transformers, Techno Lite consented to Drucker’s and Nirenberg’s operating Emcod while working for Techno Lite, based on their promise that they would run Emcod on their own time, and that Emcod would not compete with Techno Lite.


In 2013, after Olshan died, Poenitz and Tour offered to gift Olshan’s shares in Techno Lite to Drucker.  Drucker refused the shares and instead offered to purchase Techno Lite from Poenitz and Tour.  Although the parties negotiated, no purchase was consummated, and Drucker and Nirenberg resigned from Techno Lite in mid-December 2013.  Shortly thereafter, Techno Lite accused Drucker, Nirenberg, and appellant Joseph Frole -- an outside salesperson who sold products on behalf of both Techno Lite and Emcod -- of stealing its customers and misappropriating its trade secrets.


On January 29, 2014, Techno Lite filed a complaint against Emcod, Drucker, Nirenberg, and Frole for breach of fiduciary duty, misappropriation of trade secrets, interference with contractual relationships, intentional and negligent interference with prospective economic advantage, conversion, injunctive relief, and constructive trust.  Emcod, Drucker, and Nirenberg, in turn, cross-complained against Techno Lite, its owners, its operations manager respondent Rodney Davis, and several others for intentional interference with contract, intentional and negligent interference with prospective economic relations, violation of the California unfair competition law, violation of the Cartwright Act, violation of the unfair business practices act, defamation, and injunctive relief.  Techno Lite subsequently filed two amended complaints, adding causes of action for fraud and unfair business practices.


Appellants secured summary adjudication of Techno Lite’s misappropriation of trade secrets claim before the Honorable Russell S. Kussman.  The parties thereafter proceeded to a court trial on the remaining causes of action before the Honorable Rick Brown.  After the close of evidence, as part of appellants’ closing argument, Emcod, Drucker, and Nirenberg requested leave to amend their cross-complaint to conform to proof to add a cause of action for breach of contract for Poenitz’s and Tour’s failure to sell Techno Lite to Drucker and Nirenberg.  The court denied the request.  Following the conclusion of the trial and a subsequent hearing, the court found Drucker, Nirenberg, and Frole liable for interfering with Techno Lite’s prospective economic advantage, and also found Drucker, Nirenberg, and Emcod liable for fraud and unfair competition.  The court dismissed appellants’ cross-complaint.  In a later proceeding, the Honorable Virginia Keeny denied appellants’ motion for attorneys’ fees for defeating Techno Lite’s misappropriation of trade secrets claim.


Appellants now argue the courts below erred by: (a) finding Drucker, Nirenberg, and Emcod liable for fraud; (b) finding appellants liable for interfering with respondent Techno Lite’s prospective economic advantage; (c) denying Emcod, Drucker, and Nirenberg’s motion for leave to amend their cross-complaint to conform to proof; and (d) denying appellants’ motion for attorneys’ fees after appellants secured summary adjudication of Techno Lite’s claim for misappropriation of trade secrets.  In the published portion of the opinion, we reject appellants’ argument that they could not be found liable for fraud because their promise not to compete against their current employer was void under Business and Professions Code section 16600.  In the unpublished portion of the opinion, we reject their remaining contentions and affirm.

Nolte Sheet Metal v. Occupational Safety and Health Appeals Bd. (CA5 F076389 1/21/20) Cal/OSHA


Nolte Sheet Metal, Inc. (the Company), owned in part by Ernie Nolte, fabricates air conditioning ducts.  In 2014, Cal/OSHA inspected the Company’s shop and issued citations for various violations of California Code of Regulations, title 8.  The Company filed an appeal with the Occupational Safety and Health Appeals Board (Appeals Board).  In a January 29, 2016 decision, the administrative law judge (ALJ) appointed by the Appeals Board concluded the evidence supported the violations underlying the challenged citations.  The ALJ also found the violations underlying four of these citations were properly classified as “serious.”  The Company filed a petition for reconsideration, which was granted.  In an October 7, 2016 decision after reconsideration, the Appeals Board upheld the ALJ’s determinations.  The Company then filed a petition for a writ of administrative mandamus.  In a September 8, 2017 order, the Fresno County Superior Court denied writ relief. 


On appeal from the superior court’s order, the Company advances several arguments.  First, the court should have exercised its independent judgment when it reviewed the Appeals Board’s decision.  Second, the Company did not freely and voluntarily consent to Cal/OSHA’s inspection.  Third, Cal/OSHA lost the original inspection file, which deprived the Company of due process of law.  Finally, the violations underlying four of the citations were misclassified as “serious.” 


We conclude the superior court properly applied the substantial evidence standard of review.  Based on an examination of the administrative record, we further conclude substantial evidence supported the Appeals Board’s findings, i.e., the Company freely and voluntarily consented to the inspection; Cal/OSHA’s failure to preserve the original inspection file did not deprive the Company of due process; and the violations underlying the four contested citations were properly classified.  The order is affirmed.

Gonzales v. Mathis, 20 Cal.App. 5th 257 (2018) (SC S247677/ B272344 review granted, depub. denied 1/17/20)  Independent Contractor-Employee/Joint Employer


Petition for review after reversal of judgment. Can a homeowner who hires an independent contractor be held liable in tort for injury sustained by the contractor’s employee when the homeowner does not retain control over the worksite and the hazard causing the injury was known to the contractor? Further action in this matter is deferred pending consideration and disposition of a related issue in Vazquez v. Jan-Pro Franchising International, Inc., S258191 (see Cal. rules of Court, rule 8.512(d)(2)), or pending further order of the court. Submission of additional briefing, pursuant to California Rules of Court, rule 8.520, is deferred pending further order of the court.  Review granted/holding for lead case.



Court of Appeal Decision


Amezcua v. L.A. County Civil Service Com. (CA2/5 B29063, filed 12/18/19, pub. ord. 1/17/20) Civil Service/Probation Extension


Plaintiff David Amezcua appeals from a judgment denying his petition for writ of mandate pursuant to Code of Civil Procedure sections 1085 and 1094.5.  The Los Angeles County Sheriff’s Department (the Department) hired plaintiff as a deputy sheriff and placed him on a 12-month period of probation.  During the probationary period, the Department placed plaintiff on Relieved of Duty status and extended his period of probation pursuant to rule 12.02(B) of the Los Angeles County Civil Service Rules (Civil Service Rules).  (L.A. County Code, tit. 5, appen. 1.)  The Department then terminated plaintiff approximately 18 months after his date of hire.


Plaintiff filed a petition for writ of mandate, contending that:  the Department improperly extended his probation; he became a permanent employee 12 months after his hire date; and as a permanent employee, he was entitled to a hearing before discharge.  The trial court denied his petition.  We affirm.


United Educators of S.F. etc. v. Cal. Unemployment Ins. Appeals Bd. (SC S235903 1/16/20) Unemployment Benefits/Substitute Teachers & School Staff


Under section 1253.3 of the Unemployment Insurance Code (section 1253.3), public school employees are not eligible to collect unemployment benefits during “the period between two successive academic years or terms” if the employees worked during “the first of the academic years or terms” and received “reasonable assurance” of work during “the second of the academic years or terms.”  Here we address whether this limitation applies to substitute teachers and other public school employees during the summer months.  We conclude that section 1253.3 does not bar such employees from collecting unemployment benefits if the summer session constitutes an “academic term.”  A summer session is an “academic term” within the meaning of the statute if the session, on the whole, resembles the institution’s other academic terms based on objective criteria such as enrollment, staffing, budget, and the instructional program offered.


Heimrich v. US Dept. of the Army (9th Cir. 18-36005 1/16/20) Civil Service Reform Act of 1978


The panel affirmed the district court’s Fed. R. Civ. P. 12(b)(6) dismissal of a former federal employee’s Equal Employment Opportunity (“EEO”) complaint challenging his removal from his position as a power-plant mechanic with the United States Army Corps of Engineers.


5 U.S.C. § 7121(d), a provision of the Civil Service Reform Act of 1978, provides that unionized federal employees seeking to bring discrimination claims may “raise the matter” through either (1) their union’s negotiated procedure, or (2) their agency’s EEO office, “but not both.”


Plaintiff initially challenged his removal by filing a grievance through his union’s negotiated procedure, and then filed a separate complaint with the Army Corps’ EEO office. Plaintiff contended on appeal that his EEO complaint contained allegations of a hostile work environment that were not presented in his collective bargaining agreement (“CBA”) grievance, so the complaint did not raise the same “matter.”


The panel held that plaintiff’s EEO complaint raised the same matters as previously covered in plaintiff’s union grievance, which was prohibited by § 7121(d). Specifically, the panel held that the term “matter” in § 7121(d): referred to the underlying action in the CBA grievance or the EEO complaint; was broader than legal theory; and referred to the factual basis of the employee’s adverse action. The panel further held that it would not impute a hostile-work environment claim where no such allegation expressly appeared in plaintiff’s EEO complaint. The panel concluded that plaintiff’s attempt to raise new legal arguments to challenge his termination failed under § 7121(d). The panel noted that, although plaintiff’s EEO complaint was barred, there was a procedure available to raise the hostile-work environment claim: had plaintiff exhausted the union grievance procedure, he could have appealed to the Equal Employment Opportunity Commission, and then amended his CBA grievance under 29 C.F.R. § 1614.106(d) to pursue a hostile-work-environment claim before the Commission.


Babb v. Wilkie, Sec. of VA (US 18-882 oral argument transcript 1/15/20) ADEA/Federal Employees


Whether the federal sector provision of the Age Discrimination in Employment Act of 1967, which provides that personnel actions affecting agency employees aged 40 years or older shall e made free from any “discrimination based on age,” 29 U.S.C. §633a(a), requires a plaintiff to prove that age was a but-for cause of the challenged personnel action.


Oral Argument Transcript

11th Circuit Opinion,743 Fed.Appx. 280 (11th Cir. 2018)


St. Myers v. Dignity Health (CA3 C085980, filed 12/12/19, part. pub. ord. 1/15/20) Joint Employer/Wrongful Termination/Retaliation


Plaintiff Carla St. Myers worked as a nurse practitioner at a rural clinic that was part of a medical center owned and operated by defendant Dignity Health.  During the three years she worked there, she submitted over 50 complaints about working conditions and was also the subject of several investigations based on anonymous complaints.  All the investigations concluded the complaints against St. Myers were unsubstantiated and no action was taken against her.  She found another job and resigned. 


Claiming her resignation was a constructive termination due to intolerable working conditions, St. Myers sued Dignity Health and Optum360 Services, Inc.; the latter was a company that provided revenue cycle services to Dignity Health.  The complaint set forth three causes of action for retaliation under various statutory provisions and constructive discharge in violation of public policy (see Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 178).  It sought both general and punitive damages.  The trial court granted the separate motions of Dignity Health and Optum360 for summary judgment and St. Myers appeals from the subsequent judgments.


As to Optum360, we find St. Myers failed to establish a triable issue of material fact that Optum360 was her employer, a prerequisite under the pleadings for all her claims.  As to Dignity Health, we find St. Myers failed to raise a triable issue of fact as to any adverse employment action.  Accordingly, we affirm.


Retirement Plans Comm. of IBM v. Jander (US 18-1165 per curiam 1/14/20) ERISA


In Fifth Third Bancorp v. Dudenhoeffer, 573 U. S. 409 (2014), we held that “[t]o state a claim for breach of the duty of prudence” imposed on plan fiduciaries by the Employee Retirement Income Security Act of 1974 (ERISA) “on the basis of inside information, a plaintiff must plausibly allege an alternative action that the defendant could have taken that would have been consistent with the securities laws and that a prudent fiduciary in the same circumstances would not have viewed as more likely to harm the fund than to help it.” Id., at 428. We then set out three considerations that “inform the requisite analysis.” Ibid.


First, we pointed out that the “duty of prudence, under ERISA as under the common law of trusts, does not require a fiduciary to break the law.” Ibid. Accordingly, “ERISA’s duty of prudence cannot require” the fiduciary of an Employee Stock Ownership Plan (ESOP) “to perform an action—such as divesting the fund’s holdings of the employer’s stock on the basis of inside information—that would violate the securities laws.” Ibid.


We then added that, where a complaint “faults fiduciaries for failing to decide, on the basis of the inside information, to refrain from making additional stock purchases or for failing to disclose that information to the public so that the stock would no longer be overvalued, additional considerations arise.” Id., at 429. In such cases, “[t]he courts should consider the extent to which an ERISA-based obligation either to refrain on the basis of inside information from making a planned trade or to disclose inside information to the public could conflict with the complex insider trading and corporate disclosure requirements imposed by the federal securities laws or with the objectives of those laws.” Ibid. We noted that the “U. S. Securities and Exchange Commission ha[d] not advised us of its views on these matters, and we believe[d] those views may well be relevant.” Ibid.


Third, and finally, we said that “lower courts faced with such claims should also consider whether the complaint has plausibly alleged that a prudent fiduciary in the defendant’s position could not have concluded that stopping purchases—which the market might take as a sign that insider fiduciaries viewed the employer’s stock as a bad investment—or publicly disclosing negative information would do more harm than good to the fund by causing a drop in the stock price and a concomitant drop in the value of the stock already held by the fund.” Id., at 429–430.


The question presented in this case concerned what it takes to plausibly allege an alternative action “that a prudent fiduciary in the same circumstances would not have viewed as more likely to harm the fund than to help it.” Id., at 428. It asked whether Dudenhoeffer’s “‘more harm than good’ pleading standard can be satisfied by generalized allegations that the harm of an inevitable disclosure of an alleged fraud generally increases over time.” Pet. for Cert. i.


In their briefing on the merits, however, the petitioners (fiduciaries of the ESOP at issue here) and the Government (presenting the views of the Securities and Exchange Commission as well as the Department of Labor), focused their arguments primarily upon other matters. The petitioners argued that ERISA imposes no duty on an ESOP fiduciary to act on inside information. And the Government argued that an ERISA-based duty to disclose inside information that is not otherwise required to be disclosed by the securities laws would “conflict” at least with “objectives of ” the “complex insider trading and corporate disclosure requirements imposed by the federal securities laws . . . .” Dudenhoeffer, 573 U. S., at 429.


The Second Circuit “did not address the[se] argument[s], and, for that reason, neither shall we.” F. Hoffmann-La Roche Ltd. v. Empagran S. A., 542 U. S. 155, 175 (2004) (citation omitted); see Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7 (2005) (“[W]e are a court of review, not of first view”). See also 910 F. 3d 620 (CA2 2018). Nevertheless, in light of our statement in Dudenhoeffer that the views of the “U. S. Securities and Exchange Commission” might “well be relevant” to discerning the content of ERISA’s duty of prudence in this context, 573 U. S., at 429, we believe that the Court of Appeals should have an opportunity to decide whether to entertain these arguments in the first instance. For this reason we vacate the judgment below and remand the case, leaving it to the Second Circuit whether to determine their merits, taking such action as it deems appropriate.


It is so ordered.

Thole v. U.S. Bank, N.A. (US 17-1712 oral argument transcript 1/14/20)  ERISA


1. May an ERISA plan participant or beneficiary seek injunctive relief against fiduciary misconduct under 29 U.S.C. 1132(a)(3) without demonstrating individual financial loss or the imminent risk thereof?

2. May an ERISA plan participant or beneficiary seek restoration of plan losses caused by fiduciary breach under 29 U.S.C. 1132(a)(2) without demonstrating individual financial loss or the imminent risk thereof?


Oral Argument Transcript

8th Circuit Decision 873 F.3d 617 (8th Cir. 2017)

Bingener v. City of Los Angeles (CA2/3 B291112, filed 12/16/19, pub. ord. 1/9/20) Respondeat Superior/Going and Coming Rule


Mark and Eric Bingener appeal the trial court’s grant of the City of Los Angeles’s (City) motion for summary judgment.  The City argued that it was not liable for the injuries caused by Kim Rushton because he was not acting within the course of his employment at the time of the accident.  Specifically, the City argued that the coming and going rule insulated it from liability. 

It is undisputed that on February 24, 2015, an employee of the City, Rushton, struck and killed pedestrian Ralph Bingener.  It is also undisputed that when the accident occurred, Rushton was commuting to work in his own car and on his usual morning route and was not performing work for the City while driving to work.  The parties also agree that, on the day of the accident, Rushton was driving to his workplace at the Hyperion Treatment Plant, where he worked in a water quality lab checking water for semi-volatile organic compounds.  A self-described “lab rat,” Rushton’s job did not require him to be in the field or use his personal automobile for his employment.  The City moved for summary judgment on these uncontroverted facts, arguing that because the “going and coming rule” applied, without exception, to this case, the City was not liable under respondeat superior for the accident. 


Plaintiffs countered that there was a dispute of fact regarding an exception to the going and coming rule–the “work- spawned risk” exception.  This exception applies when an employee endangers other with a risk arising from or related to work.  For example, where an employee gets into a car accident on the way home after drinking alcohol at work with his supervisor’s permission, courts have carved out an exception to the going and coming rule.  Where, as in such a case, there is a sufficient link between the drinking and the accidents as to make the collisions neither starling nor unusual, the courts have found that the risk was one that may be regarded as typical of or broadly incidental to the employer’s enterprise.  (Childers v. Shasta Livestock Auction Yard, Inc. (1987) 190 Cal.App.3d 792; see Bussard v. Minimed, Inc. (2003) 105 Cal.App.4th 798, 803, 807 (Bussard) [employee’s exposure to pesticides during work hours impaired her ability to safely drive home and, therefore, the going and coming rule did not apply].) 


Applying this exception to the facts here, plaintiffs argued that the City knew about Rushton’s health conditions and how it might impair his ability to drive because certain medical expenses were being paid for Rushton’s back injury through the City’s worker compensation program.  According to plaintiffs, Rushton’s then-present injuries and medications rendered him unfit to drive.  Despite this knowledge, the City allowed Rushton to return to work prematurely without placing any restrictions on his driving.  Given that Rushton was impaired and unfit to drive, his driving to work was a foreseeable risk of the City’s activities.  The City, should, therefore, be held liable for “a negligently created work-spawned risk endangering the public.” 


We affirm the judgment.  At summary judgment, plaintiffs failed to adduce sufficient facts upon which they could establish a triable issue of fact on their claim that Rushton’s accident was a foreseeable event arising from or relating to his employment for the City at its water plant laboratory.  Nothing about the enterprise for which the City employed Rushton made his hitting a pedestrian while commuting a foreseeable risk of this enterprise.  The “going and coming rule” was created for precisely the situation presented here and its application in this case precludes plaintiffs’ claim of vicarious liability against the City.


Ridgeway v. Walmart (9th Cir. 17-15983, 17-16142 1/6/10) Wage & Hour/Class Action


The panel affirmed the district court’s judgment awarding tens of millions of dollars in damages in a class action brought by Wal-Mart California truck drivers alleging employment-related claims.


The case was initially filed in state court by four truck drivers. Wal-Mart removed the suit to federal court, and the parties agreed to a stay until the California Supreme Court issued Brinker Restaurant Corp. v. Superior Court, 273 P.3d 513 (Cal. 2012) (holding that employers must make meal and rest breaks available, but do not have to ensure that employees take such breaks). After the stay was lifted, plaintiffs filed their fourth amended complaint and dropped some initial plaintiffs while adding new class plaintiffs. The district court certified the new class, granted partial summary judgment to plaintiffs on their minimum wage liability claims, and eventually conducted a jury trial and entered judgment.


The panel held that Wal-Mart raised no reversible error.


The panel rejected Wal-Mart’s claim that the district court erred by failing to dismiss for lack of jurisdiction. The panel held that the district court correctly concluded that the case presented an Article III case or controversy because two lead plaintiffs remained in the action after the stay was lifted. The panel rejected Wal-Mart’s claims that plaintiffs should not have been awarded damages for layovers, rest breaks, and inspections. Specifically, the panel held that the district court correctly concluded that, under California law, time drivers spent on layovers was compensable if Wal-Mart exercised control over the drivers during those breaks. The panel further held that a comprehensive review of the Wal-Mart pay manual demonstrated that it unambiguously required drivers to obtain preapproval to take a layover at home, and therefore, the district court did not err in granting partial summary judgment on this issue to plaintiffs. The panel also held that the district court correctly determined that Wal-Mart’s written policies, if applied as written, resulted in Wal-Mart exercising control over employees during mandated layovers as a matter of California law. The panel held that the district court properly instructed the jury on layovers. The panel also held that there was sufficient evidence for the jury to find that Wal-Mart had exercised control over its drivers. The panel rejected Wal-Mart’s contention that the Federal Aviation Administration Authorization Act preempted California law governing layovers. The panel also affirmed the district court’s judgment awarding damages to plaintiffs for rest breaks and inspections.


The panel held that the district court did not err in certifying a class and allowing representative evidence as proof of classwide damages – including plaintiffs’ expert Dr. Phillips’ testimony and sample.


On cross-appeal, plaintiffs argued that the district court erred in denying liquidated damages. The panel held that the district court did not err in finding that Wal-Mart acted in good faith and with a reasonable belief in the legality of its action, and therefore affirmed the district court’s denial of liquidated damages.


Judge O’Scannlain concurred in the majority’s opinion, except for Part II.B.1.b. Judge O’Scannlain did not agree with the majority’s conclusion that the district court correctly granted partial summary judgment to the plaintiffs when it found that Wal-Mart’s written pay policies necessarily establish that the company “controlled” drivers during layovers. In his view, the jury should have been allowed to decide the meaning of these ambiguous policies and the extent to which the policies actually “control” what drivers may do and where they may go.


Long Beach Unified School Dist. v. Margaret Williams, LLC (CA2/4 B290069M, mod., rehg. den. 12/31/19) Retaliatory Termination of Contract/Anti-SLAPP




It is ordered that the opinion filed December 9, 2019, be modified as follows:


On page 20, line 18, the following footnote 7 [requiring renumbering of all subsequent footnotes] is added after the period following the word “protected”: 


7 “Neither C.W. Howe Partners Inc. v. Mooradian (Dec. 19, 2019, B290665) ___Cal.App.5th___ [2019 Cal.App. LEXIS 1277] (C.W. Howe) nor Wong v. Wong (Dec. 13, 2019, A154286) ___Cal.App.5th___ [2019 Cal.App. LEXIS 1252] (Wong), each of which was published after the initial publication of this opinion, calls for a different conclusion.  The C.W. Howe court, disagreeing with our analysis of the first ground for our first-step holding, rejected indemnitors’ contention that cross-claims seeking defense and indemnity in the indemnitors’ litigation arose from that underlying litigation.  (See C.W. Howe, supra, at pp. *17-*24.)  But the court proceeded to expressly distinguish its opinion from ours on the second ground for our first-step holding, viz., our conclusion that Williams LLC’s refusal to defend and indemnify the District -- from which the District’s cross-claims concededly arose -- was protected conduct in furtherance of petitioning activity in connection with an issue of public interest.  (See id. at pp. *24, *25 [noting indemnitors did not and could not “assert that their refusal to honor the [indemnitees’] indemnity demand similarly implicate[d] an issue of public interest”].)


Wong is distinguishable for the same reason.  The indemnitor there could not claim an issue of public interest was at stake in the underlying litigation, in which a corporation that owns and operates a shopping mall sought recovery of allegedly misappropriated loan proceeds from the estate of a former shareholder.  (See Wong, supra, [2019 Cal.App. LEXIS 1252], at pp. *2-*5.)  In any event, the Wong court did not address whether the indemnitor’s refusal to indemnify the indemnitee was protected conduct in furtherance of petitioning activity in connection with an issue of public interest.  (See id. at pp. *7-*15.)  Thus, Wong is not authority on that issue.  (See California Building Industry Assn. v. State Water Resources Control Bd. (2018) 4 Cal.5th 1032, 1043 [“It is axiomatic that cases are not authority for propositions that are not considered”].)”


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


Bahra v. County of San Bernardino (9th Cir. 18-55789 12/30/19)) Lab. Code § 1102.5 and § 1983 Whistleblower Retaliation/Claim and Issue Preclusion


The panel affirmed in part and reversed in part the district court’s summary judgment in favor of San Bernardino County Department of Children and Family Services defendants in an action brought pursuant to 42 U.S.C. § 1983 and state law alleging that defendants fired plaintiff from his post as a social services practitioner in retaliation for his whistleblowing activities.


Plaintiff challenged his termination, unsuccessfully, through an appeal to the County’s Civil Service Commission and subsequently filed the present action. The district court granted summary judgment for defendants, holding in part, that plaintiff’s claims for retaliation under California Labor Code section 1102.5 and 42 U.S.C. § 1983 were barred by claim preclusion and issue preclusion.


The panel first held that the Commission’s order sustaining plaintiff’s dismissal did not preclude plaintiff’s section 1102.5 claim for retaliation. The panel noted that although in California decisions by administrative agencies typically have preclusive effect, the California Court of Appeal recently applied a legislative-intent exception and held that administrative findings by a state agency do not preclude claims for retaliation brought under section 1102.5. See Taswell v. Regents of Univ. of Cal., 232 Cal. Rptr. 3d 628, 643 (Ct. App. 2018). The panel concluded that defendants had failed to persuade it that the Taswell court misapplied California law such that the California Supreme Court would disagree with Taswell’s reasoning or conclusion.


The panel’s conclusion regarding legislative intent did not extend to plaintiff’s claim under § 1983. The panel noted that plaintiff did not argue that giving an administrative proceeding preclusive effect in a later § 1983 action was contrary to legislative intent, and the panel declined to conduct that analysis sua sponte. The panel held that plaintiff had a full opportunity to litigate the propriety of his termination before the administrative agency, as evidenced by the comprehensive evidentiary record and the availability of judicial review. The panel concluded that plaintiff’s § 1983 claim was precluded by the Commission’s order and affirmed the district court’s ruling on this claim.


Noori v. Countrywide Payroll & HR Solutions, Inc. (CA3 C084800 12/26/19) Wage Statements


The Legislature has enacted statutory requirements concerning itemized wage statements employers must provide employees along with their paychecks.  In this case, Plaintiff Mohammed Noori sued his former employer, defendant Countrywide Payroll & HR Solutions, Inc., for violations of those statutory requirements.  He alleged, inter alia, that Countrywide violated Labor Code section 226, subdivision (a) by (1) providing wage statements bearing the acronym “CSSG” in violation of the requirement to include the “name . . . of the legal entity that is the employer”; and (2) failing to maintain copies of accurate itemized wage statements. Noori also sought to bring those claims under the Private Attorneys General Act (PAGA).  The trial court granted Countrywide’s demurrer to the first amended complaint without leave to amend. 


On appeal, Noori contends the trial court erred in finding (1) the wage statements provided to Noori, as a matter of law, complied with section 226, subdivision (a)(8)’s requirement to include the employer’s name; (2) Countrywide maintained copies of wage statements as required by section 226, subdivision (a); and (3) Noori failed to satisfy the notice requirement for bringing a claim under PAGA. 


We conclude the amended complaint states a claim under section 226, subdivision (a)(8) for failure to provide the employer’s name.  Noori’s allegation that Countrywide’s wage statements bore only the acronym “CSSG,” an abbreviation of a fictitious business name, adequately supports this claim.  We also conclude Noori satisfied the notice requirement for bringing that claim under PAGA.  Accordingly, we reverse the trial court’s orders as to those two causes of action. 


As to the failure to maintain copies of accurate itemized wage statements claim, we affirm the trial court’s order granting the demurrer without leave to amend because Noori’s complaint fails to assert facts supporting the injury element.


Danielson v. Inslee (9th Cir. 18-36087 12/26/19) Union Agency Fees


The panel affirmed the district court’s dismissal of a claim for monetary relief bought pursuant to 42 U.S.C. § 1983 by public sector employees against their union following the Supreme Court’s decision in Janus v. American Federation of State, County, & Municipal Employees, Council 31, 138 S. Ct. 2448 (2018), which held that the compulsory collection of agency fees by unions violates the First Amendment.


Prior to the Supreme Court’s decision in Janus, public sector unions around the country relied on the Supreme Court’s decision in Abood v. Detroit Board of Education, 431 U.S. 209 (1977), which held that the unions could collect compulsory agency fees from nonmembers to finance their collective bargaining activities, without running afoul of the First and Fourteenth Amendments. State laws and regulations further entrenched the union agency shop into the local legal framework. In 2018, the Supreme Court uprooted its precedent by overturning Abood. Immediately thereafter, the defendant Union stopped collecting mandatory fees from nonmembers. Plaintiffs subsequently brought suit seeking, among other things, a refund of all agency fees that were allegedly unlawfully collected from plaintiffs prior to the Supreme Court’s decision in Janus.


Joining the Seventh Circuit, the panel held that private parties may invoke an affirmative defense of good faith to retrospective monetary liability under 42 U.S.C. § 1983, where they acted in direct reliance on then-binding Supreme Court precedent and presumptively-valid state law. See Janus v. Am. Fed’n of State, Cty. & Mun. Emps., Council 31, 942 F.3d 352 (7th Cir. 2019) (“Janus II”); Mooney v. Ill. Educ. Ass’n, 942 F.3d 368 (7th Cir. 2019). The panel held that the good faith affirmative defense applied as a matter of law, and the district court was right to dismiss plaintiffs’ claim for monetary relief.


Cacho v. Eurostar, Inc. (CA2/7 B284827, filed 12/4/19, ord. pub. 12/23/19) Wage & Hour/Class Certification


Plaintiffs David Cacho and Regina Silva assert class claims against their former employer, Eurostar, Inc., alleging Eurostar violated California wage and hour laws by failing to provide employees with required meal and rest breaks and compelling employees to work off the clock at Eurostar’s Warehouse Shoe Sale (WSS) retail shoe stores in California.  Plaintiffs appeal from the trial court’s order denying their motion for class certification, in which the court found plaintiffs failed to demonstrate common issues of law or fact predominated over individual issues and plaintiffs’ claims were not typical of the class.  Plaintiffs contend Eurostar maintained uniform break and overtime policies that are facially inconsistent with the labor laws, and therefore the claims are “eminently suited” for class adjudication under Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004 (Brinker).


This case presents the question whether in the wake of Brinker, if the employer has a break policy (here, a meal break policy) that is compliant with the applicable wage order but silent as to certain requirements, does the omission of those requirements support class certification in the absence of evidence of a uniform unlawful policy or practice?  Similarly, where an employer has a uniform written break policy that on its face is unlawful (here, a rest break policy), but in practice the policy has not been applied to company employees, is it nonetheless suitable for class certification?  The answer to both questions is no.  Although trial courts must be wary of analyzing evidence of wage and hour violations at the class certification stage in a manner that prejudges the merits, they may properly consider the evidence to determine whether classwide liability can be established through common proof.


Because plaintiffs failed to show they could prove Eurostar’s liability for meal break, rest break, and off-the-clock violations by common proof at trial, the trial court did not abuse its discretion in denying class certification.  In reaching its determination, the trial court did not err in considering the evidence submitted by the parties as to Eurostar’s policy and practices to assist the court in making the threshold determination whether plaintiffs could prove liability for the alleged violations with common proof.  We affirm.


Walden v. State of Nevada (9th Cir. 18-15691 12/23/19) FLSA/11th Amendment Immunity


The panel filed (1) an order withdrawing its opinion and substituting in its place an amended opinion, denying a petition for panel rehearing, and denying on behalf of the court a petition for rehearing en banc; and (2) an amended opinion affirming the district court’s holding that the State of Nevada waived its Eleventh Amendment sovereign immunity as to plaintiffs’ Fair Labor Standards Act claims when the State removed the case from state court to federal court.


Extending the holding of Embury v. King, 361 F.3d 562 (9th Cir. 2004), the panel held that a State that removes a case to federal court waives its immunity from suit on all federal law claims in the case, including those federal-law claims that Congress failed to apply to the states through unequivocal and valid abrogation of their Eleventh Amendment immunity.


Doe v. Dept. of Corrections and Rehabilitation (CA4/2 E071224, filed 11/27/19, ord. pub. 12/19/19) FEHA Disability Discrimination, Retaliation, Harassment, Failure to Accommodate


John Doe, who used to work as a psychologist at Ironwood State Prison (Ironwood), sued his former employer, the California Department of Corrections and Rehabilitation (CDCR), under the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.), alleging discrimination, retaliation, and harassment based on disability. Doe also alleged CDCR violated FEHA by failing to accommodate his two disabilities, asthma and dyslexia, by relocating him to a cleaner and quieter office and providing him with requested computer equipment. Finding no triable issues of material fact, the trial court granted summary judgment in favor of CDCR. We affirm.


Safeway Wage and Hour Cases (CA2/4 B287103 12/18/19) Wage & Hour/Misclassification


This is another in a series of cases in which former managers of Safeway supermarket stores sought unpaid overtime wages, claiming they had been misclassified as exempt executives under regulations applicable to the mercantile industry.  Following trial, a jury found respondent Safeway, Inc. had proven that appellant William Cunningham had been an exempt employee (and thus was not entitled to overtime pay).  On appeal, appellant asserts the trial court committed instructional error.  In particular, he challenges an instruction based on language in this court’s decisions in Batze v. Safeway, Inc. (2017) 10 Cal.App.5th 440 (Batze) and Heyen v. Safeway Inc. (2013) 216 Cal.App.4th 795 (Heyen), directing the jury to classify any given task as exempt work whenever a manager engages in it “because it is helpful in supervising employees in the store or because it contributes to the smooth functioning of the store . . . .”  Appellant also claims the court abused its discretion in admitting certain expert testimony, arguing it was speculative. 


We clarify that a task does not become exempt merely because the manager undertakes it in order to contribute to the smooth functioning of the store.  An instruction on the consideration of the manager’s purpose, where appropriate, must inform the jury of relevant limiting principles outlined in the applicable regulations and recognized by our prior decisions.  However, we conclude the trial court’s instruction did not affect the jury’s verdict.


Additionally, we find no abuse of discretion in the admission of the contested expert testimony under the circumstances of this case.  We therefore affirm the judgment.


Rall v. Tribune 365, LLC (CA2/8 B284566A 12/18/19) Wrongful Termination/Defamation


Plaintiff Frederick Theodore Rall III, a political cartoonist and blogger, sued Los Angeles Times Communications LLC (The Times) after it published a “note to readers” and a later more detailed report questioning the accuracy of a blog post plaintiff wrote for The Times.  The Times told its readers that it had serious questions about the accuracy of the blog post; that the piece should not have been published; and that plaintiff’s future work would not appear in The Times.  Plaintiff sued The Times, related entities, and several individual defendants, alleging causes of action for defamation and for wrongful termination in violation of public policy, among other claims.


All defendants filed anti-SLAPP (strategic lawsuit against public participation) motions to strike plaintiff’s complaint (Code Civ. Proc., § 425.16).  The trial court granted the motions.  In our original published opinion filed January 17, 2019, we affirmed the trial court’s orders.  Plaintiff filed a petition for review with the Supreme Court.  The Supreme Court granted review and deferred further consideration pending its disposition in Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871 (Wilson). 


After the issuance of its decision in Wilson, the Supreme Court, by order dated September 25, 2019, transferred the matter to this court for reconsideration in light of Wilson.  Having done so, we again affirm the trial court’s orders.


Visalia Unified School Dist. v. Superior Ct. (CA5 F077032 12/17/19) Reporting by School Employees of Improper Governmental Activities Act/Punitive Damages


Real party in interest, Natalie Harlan, filed suit against petitioner Visalia Unified School District (VUSD) and two individual defendants for, inter alia, retaliation in violation of the Reporting by School Employees of Improper Governmental Activities Act (Ed. Code, §§ 44110–44114; hereafter the “Act”).  In addition to compensatory damages, Harlan seeks punitive damages against all three defendants under section 44114, subdivision (c), which allows for the award of punitive damages against “person[s]”—as that term is defined by section 44112, subdivision (d)—whose acts are proven to be malicious. 


VUSD moved to strike the punitive damage allegations from the complaint as to VUSD on the ground that it, as a public entity, is immune from the imposition of punitive damages under Government Code section 818.  The trial court denied the motion, holding that the Act supersedes Government Code section 818. 


This petition for a writ of mandate requires us to determine whether punitive damages may be imposed against school districts sued under the Act.  We hold Government Code section 818 prohibits the imposition of punitive damages against school districts sued under the Act, and the trial court therefore erred in denying the motion to strike the punitive damage allegations as to VUSD from the complaint.  Accordingly, we direct the trial court to strike the punitive damage allegations as to VUSD from the complaint.


Mathews v. Happy Valley Conference Center, Inc. (CA6 H043723 12/12/19) FEHA/Religious Exemption


Plaintiff Jeremiah Mathews worked as a maintenance supervisor and a cook for defendant Happy Valley Conference Center, Inc. (Happy Valley), which hosts seminars, retreats, and camps on a 30-acre property in the Santa Cruz Mountains.  Happy Valley is a subordinate affiliate of defendant Community of Christ (the Church).  When a younger male employee confided in plaintiff that Happy Valley’s female executive director had been sending him sexually inappropriate text messages, plaintiff reported the allegation to a member of Happy Valley’s board of directors and to the Church’s general counsel.  The executive director admitted sending the messages, was reprimanded, and was allowed to continue supervising plaintiff and the younger male employee.  Plaintiff was terminated less than a month after reporting the harassment.  Plaintiff sued defendants, alleging retaliatory termination under several legal theories.  The jury returned special verdicts in plaintiff’s favor on all causes of action.  Defendants were ordered to pay almost $900,000 in damages (including punitive damages) and almost $1 million in attorney’s fees.


Defendants contest most of the jury’s findings.  Relevant to most appellate issues, defendants argue the Church cannot be held liable for Happy Valley’s actions because the two are separate entities that do not fall within the single employer doctrine.  They further argue the trial court’s single employer doctrine jury instruction was prejudicially erroneous. 


Regarding liability, defendants argue that Happy Valley is not liable under title VII of the Civil Rights Act of 1964 (Title VII; 42 U.S.C. § 2000 et seq.) because Happy Valley does not have enough full-time employees to come within that law.  Defendants also contest their liability under the California Fair Employment and Housing Act (FEHA; Gov. Code, § 12900 et seq.) because they are exempt religious entities, and contend the trial court erred in finding they had waived or were estopped from claiming the religious entity exemption.  Defendants assert they are not liable under the version of the whistleblower statute in effect at the time of the events at issue (rather than the amended statute reflected in the parties’ proposed jury instructions).  They also argue the evidence was insufficient to support a finding that the Church breached an implied or actual contract with plaintiff. 


Regarding damages, defendants contend the trial court awarded damages under Title VII beyond the maximum value allowed by that statutory scheme; noneconomic and punitive damages not recoverable for breach of contract; excessive punitive damages; and attorney’s fees not recoverable as a matter of law.


As we will explain, we find no prejudicial error regarding most of defendants’ appellate arguments, but the judgment must be modified to reflect that defendants are exempt from FEHA liability.


Luke v. Sonoma County (CA1/5 A155286 12/12/19) Pension Benefits


Plaintiff George W. Luke, a Sonoma County resident and taxpayer, appeals from the trial court’s orders sustaining the demurrers of Sonoma County (the County) and certain County officials, the Sonoma County Employees’ Retirement Association, and the Sonoma County Law Enforcement Association (collectively, Respondents).  Plaintiff argues the trial court erred in finding his claims challenging the payment of increased public employee pension benefits barred by the statute of limitations.  We affirm.


Murphy v. SFBSC Management (9th Cir. 17-17079 12/11/19) Class Settlement/Implicit Collusion


The panel reversed the district court’s approval of a settlement notice process and a class action settlement, negotiated without a certified class, in a case in which exotic dancers working at various nightclubs in San Francisco alleged they were misclassified as independent contractors rather than being treated as employees.


The panel held that the settlement notice did not meet the “best notice that is practicable under the circumstances” due process standard of Fed. R. Civ. P. 23(c)(2)(B). The content of the notice was adequate, even though it did not include information about related litigation, but the process used was inadequate because notice was sent only once by mail.


The panel held that, in granting approval of the settlement as “fair, reasonable, and adequate” under Rule 23(e), the district court failed to apply the correct legal standard and conduct the heightened inquiry required for review of class action settlements negotiated without a certified class. Accordingly, the district court abused its discretion in approving the settlement. The panel held that, when the parties negotiate a settlement before a class has been certified, the district court must apply a higher level of scrutiny for evidence of collusion or other conflicts of interest before approving the settlement as fair. This more exacting review is warranted to ensure that class representatives and their counsel do not secure a disproportionate benefit at the expense of unnamed plaintiffs. The panel concluded that the district court failed to investigate or adequately address numerous problematic aspects of the settlement and subtle signs of implicit collusion, including a clear sailing agreement, a disproportionate cash distribution to attorneys’ fees justified in part by potentially inflated non-monetary relief, large incentive awards to two plaintiffs, and reversionary clauses. The panel reversed and remanded for further proceedings.


Salazar v. McDonald’s Corp. (9th Cir. 17-15673 12/11/19) Wage and Hour/Martinez Elements


The panel filed an amended majority opinion affirming the district court’s summary judgment in favor of McDonald’s Corp. in a class action brought by McDonald’s employees alleging that they were denied overtime premiums, meal and rest breaks, and other benefits in violation of the California Labor Code; denied a petition for panel rehearing; and denied on behalf of the court a petition for rehearing en banc. Chief Judge Thomas voted to grant the petition for panel rehearing and petition for rehearing en banc.


The plaintiff class members worked at McDonald’s franchises in the Bay Area operated by the Haynes Family Limited Partnership.


The panel held that the district court properly ruled that McDonald’s was not an employer under the “control” definition, which requires “control over the wages, hours, or working conditions.” Martinez v. Combs, 231 P.3d 259, 277 (Cal. 2010). The panel also held that the district court correctly concluded that McDonald’s did not meet the “suffer or permit” definition of employer. The panel held that under California common law, McDonald’s cannot be classified as an employer of its franchisees’ workers. The panel concluded that although there was arguably evidence suggesting that McDonald’s was aware that Haynes was violating California’s wage-and-hour laws with respect to Haynes’ employees, there was no evidence that McDonald’s had the requisite level of control over plaintiffs’ employment to render it a joint employer under applicable California precedents.


The panel held that McDonald’s cannot be held liable for wage-and-hour violations under an ostensible-agency theory.


The panel rejected plaintiffs’ claim that McDonald’s owed them a duty of care, which it breached by supervising Haynes’ managers inadequately and failing to prevent the alleged hour-and-wage violations. The panel held that plaintiffs met neither the damages nor the duty elements required to prove negligence.


The panel did not consider plaintiffs’ arguments on the merits of the district court’s rulings striking plaintiffs’ representative Private Attorney General Act claims and denying class certification. Chief Judge Thomas concurred in part and dissented in part. Chief Judge Thomas agreed with the majority that there was no genuine issue of material fact regarding whether McDonald’s was an employer under the “control” or common law definitions. Dissenting, Chief Judge Thomas would hold that there were genuine issues of material fact regarding whether McDonald’s was a joint employer of franchise location workers under the “suffer or permit” definition.


Long Beach Unified School Dist. v. Margaret Williams, LLC (CA2/4 B290069 12/9/19) Retaliatory Termination of Contract/Anti-SLAPP


Long Beach Unified School District (the District) appeals from the dismissal of its cross-complaint under Code of Civil Procedure section 425.16, commonly known as the anti-SLAPP statute.  (See Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 880 (Wilson).)  In 2006, the District entered into a contract with respondent Margaret Williams, LLC (Williams LLC), which had been formed by Margaret Williams that year for the purpose of working for the District.  According to Williams, the District required her to form a business entity to enter the contract, which was a standardized form agreement with terms she could not negotiate.  For nearly a decade, Williams worked full-time for the District, through her LLC, on construction management and environmental compliance, including work under the District’s agreement with a state agency to clean up material at a school construction site contaminated with arsenic.  After a dispute arose between Williams and the District about alleged violations of the cleanup agreement, Williams was diagnosed with arsenic poisoning, and the District terminated Williams LLC’s then-current contract, which included an indemnity provision.


Williams and her LLC filed a lawsuit against the District (the Underlying Action).  Each plaintiff brought claims alleging the termination was retaliatory, and Williams brought claims alleging the District unlawfully caused her arsenic poisoning.  The District invoked the indemnity provision to demand that Williams LLC defend and indemnify the District in the Underlying Action.  After Williams LLC refused to defend the District against the LLC’s own and Williams’s claims, the District filed a cross-complaint alleging, inter alia, that this refusal breached the contract.  Williams LLC filed an anti-SLAPP motion to strike the cross-complaint, arguing, inter alia, that the District could not prevail on its cross-claims because the indemnity provision is unconscionable.  The trial court granted the motion and struck the District’s cross-complaint.


On appeal, the District contends the trial court erred in striking its cross-complaint under the anti-SLAPP statute.  In the alternative, it contends the trial court erred in denying the District leave to include nine additional pages in its brief opposing the anti-SLAPP motion. 


Finding no error, we affirm.  If enforced as the District requested, the indemnity provision would require Williams LLC to fund the District’s defense against the very litigation the LLC and Williams brought against the District.  The District’s cross-complaint therefore arose from that litigation or the LLC’s refusal to sabotage it -- each of which is protected by the anti-SLAPP statute.  Moreover, the District sought to require the LLC not only to fund the District’s defense, but also to reimburse the District for any award secured by Williams or the LLC falling within the provision’s broad scope.  Such a bar to meaningful recovery embodies a high degree of substantive unconscionability, sufficient -- when combined with the procedural unconscionability shown through Williams LLC’s unrebutted evidence of adhesion, oppression, and surprise -- to establish that the indemnity provision is unconscionable.  We limit the provision to avoid an unconscionable result, rendering it inapplicable to claims brought by Williams LLC and claims brought by Williams.  As a result of this limitation, the District fails to show error in the dismissal of the District’s breach of contract and declaratory relief claims.  The District further fails to show error in the dismissal of its other cross-claims, or in the denial of its application for leave to file an oversized opposition brief.

bottom of page