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.

Superior Court v. County of Alameda (CA6 H048342 6/17/21) Court Security MOU

 

Plaintiff Alameda County Superior Court (ACSC) challenges the trial court’s determination that a three-year memorandum of understanding (MOU) between ACSC and defendants County of Alameda (the County) and Alameda County Sheriff’s Office (the Sheriff) governing court security services does not obligate the Sheriff to provide a minimum level of court security services of 129 “FTEs” (full time equivalents) after the expiration of the MOU.  The trial court ruled that the MOU entitled the County and the Sheriff to unilaterally reduce court security services provided by the Sheriff to ACSC below 129 FTEs if funding provided to the County by the State of California (the State) for court security services was not sufficient to pay for 129 FTEs.

           

The trial court’s decision turned on its conclusion that exhibit C-3 of the MOU permitted the Sheriff to reduce court security services provided during the last six months of the three-year period covered by the MOU and that exhibit C-3 was the “deployment schedule” that remained in force under the MOU after the MOU’s expiration until the parties agreed on a new MOU.  ACSC argued in the trial court that exhibit C-1, the deployment schedule that governed the level of court security during the first two years of the period covered by the MOU and which required a minimum of 129 FTEs, was the only deployment schedule in the MOU, and therefore it was exhibit C-1 that remained in force after the expiration of the MOU.

           

On appeal, ACSC reiterates the argument it made in the trial court.  We conclude that exhibit C-1’s provisions concerning the level of court security services remained in force after the expiration of the MOU because exhibit C-1 is the only portion of the MOU that meets the requirement of Government Code section 69926 that a court security MOU specify an “agreed-upon level” of court security services.  We find that exhibit C-3 did not satisfy that requirement.  Consequently, we reverse the trial court’s decision and remand for further proceedings.

 

https://www.courts.ca.gov/opinions/documents/H048342.PDF

Moreno v. Bassi (CA5 F078400 6/8/21) Mixed Minimum Wage-FEHA Claims/Attorney Fees and Costs

 

A jury awarded plaintiff Marina Moreno $16 in unpaid minimum wages and $16 in liquidated damages and found against her on causes of action alleging she had been raped by her employer.  In posttrial proceedings, the trial court determined plaintiff was the prevailing party for purposes of Code of Civil Procedure section 1032 and awarded her $19,523 in costs.  The court also awarded plaintiff $3.20 in attorney fees based on the formula in section 1031 that multiples the wages recovered by 20 percent.

 

Plaintiff’s appeal and defendant’s cross-appeal raise issues about the award of costs and the award of attorney fees.  We note that the Legislature addressed cases involving a small award of damages and a relatively large amount of costs by enacting section 1033.  It allows a trial court to reduce the costs otherwise recoverable as a matter of right under section 1032 “where the prevailing party recovers a judgment that could have been rendered in a limited civil case.”  (§ 1033, subd. (a).)  Defendant asserts the costs awarded to plaintiff could have been reduced under section 1033.  However, defendant’s primary argument asserts Government Code section 12965, subdivision (b) bars plaintiff’s recovery of many of the costs.  That provision controls the award of costs on claims alleging violations of the California Fair Employment and Housing Act (FEHA; Gov. Code, § 12900 et seq.).

 

In this case, plaintiff lost all the FEHA claims, lost some non-FEHA claims, and prevailed on some non-FEHA claims.  In such a situation, the award of costs is governed by the interaction of section 1032 and Government Code section 12965, subdivision (b).  We conclude Government Code section 12965, subdivision (b) bars plaintiff from recovering the costs caused solely by the inclusion of the FEHA causes of action in this lawsuit.  The other costs incurred in the lawsuit are recoverable under section 1032, subject to the discretionary exception in section 1033, subdivision (a).  On remand, the trial court must determine which cost items, if any, are barred by Government Code section 12965, subdivision (b) before entering an award in accordance with sections 1032 and 1033.

 

The parties’ dispute over attorney fees requires an interpretation of section 1031 and Labor Code section 1194.  The literal terms of these attorney fees provisions cover this case because of the recovery of minimum wages.  In situations where these statutes overlap, we conclude Labor Code section 1194 controls because it is the more specific statute and its attorney fees provision is the most recently enacted.  Accordingly, the trial court should have exercised the discretion granted by Labor Code section 1194 and awarded plaintiff reasonable attorney fees, rather than applying section 1031 and awarding 20 percent of the wages recovered.  On remand, the trial court must determine the amount of reasonable attorney fees.

 

In the unpublished portion of this opinion, we address plaintiff’s challenges the trial court’s denial of her motion for a new trial.  We conclude plaintiff was entitled to prejudgment interest on the damages awarded for the Labor Code violations; the trial court did not commit evidentiary error when it allowed the defendant to testify that he had never been convicted of a sex crime; plaintiff’s assertions of defense counsel misconduct do not justify reversal because the jury was not prejudiced against plaintiff; and the trial court properly granted the motion for nonsuit by defendant’s wife.  Thus, the motion for new trial was properly denied. 

 

We therefore affirm the judgment in part, reverse it in part, and remand for further proceedings on the issues of attorney fees and costs.

 

https://www.courts.ca.gov/opinions/documents/F078400.PDF

 

Salisbury v. City of Santa Monica (9th Cir. 20-55039 6/7/21) FHAA/Reasonable Accommodation/Consideration

 

Affirming the district court’s summary judgment in favor of the City of Santa Monica, the panel held that the Fair Housing Amendments Act of 1988 does not require landlords to accommodate the disability of an individual who neither entered into a lease nor paid rent in exchange for the right to occupy the premises.

 

Plaintiff lived with his father in a mobile home on land rented from the City of Santa Monica. Upon his father’s death, plaintiff refused to vacate the mobile home park, and he asked the City to accommodate his disability by waiving park rules to allow him to store his vehicle immediately next to his mobile home.

 

The panel held that, by its plain language, the FHAA does not apply to claims by plaintiffs who never themselves or through an associate entered into a lease or paid rent to the defendant landlord. As to occupants requesting accommodation, the FHAA’s disability discrimination provisions apply only to cases involving a “sale” or “rental” for which the landlord accepted consideration in exchange for granting the right to occupy the premises. Applying a federal standard, rather than California landlord-tenant law, the panel concluded that because plaintiff never provided consideration in exchange for the right to occupy a space in the mobile home park, the FHAA did not apply to his claim for relief, and the City was not obligated to provide, offer, or discuss an accommodation.

 

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/06/07/20-55039.pdf

 

Wong v. Flynn-Kerper (9th Cir. 19-56289 6/7/21) ERISA

 

The panel reversed the district court’s dismissal, on the ground of equitable estoppel, of an ERISA action in which David Wong, Trustee of the Anaplex Corporation Employee Stock Ownership Plan, sought equitable and declaratory relief against Danette K. Flynn-Kerper, the holder of a promissory note from Anaplex.

 

Bernard Kerper, former trustee of the ESOP and late husband of Flynn-Kerper, acquired the promissory note in exchange for shares of Anaplex stock he sold to the ESOP. Alleging that the ESOP had paid greater than “adequate consideration” for the shares, Wong sought an adjustment to the purchase price and a declaration that the ESOP had overpaid. Flynn-Kerper moved to dismiss, arguing that Wong was equitably estopped from asserting his claims against her, based on an agreement between them that she alleged settled a prior lawsuit in which she had alleged Anaplex’s failure to repay promissory notes, including a note that Anaplex issued in connection with the challenged stock sale. The district court granted the motion to dismiss, concluding that ERISA did not bar promissory or equitable estoppel because Flynn-Kerper was not making a claim pursuant to the ERISA agreement, but instead was seeking to rebuff Wong’s claim for reformation of the promissory note.

 

Reviewing under a summary judgment standard, the panel held that Flynn-Kerper could not equitably estop Wong, the ERISA Trustee, because doing so would contradict the clear terms of the ESOP. The panel held that, in addition to satisfying the traditional equitable estoppel requirements, a party bringing a federal equitable estoppel claim in the ERISA context must also allege: (1) extraordinary circumstances; (2) that the provisions of the plan at issue were ambiguous such that reasonable persons could disagree as to their meaning or effect; and (3) that the representations made about the plan were an interpretation of the plan, not an amendment or modification of the plan. The panel held that a party cannot maintain a federal equitable estoppel claim against a trust fund where recovery on the claim would contradict written plan provisions. Here, if Wong were correct that the Anaplex shares were overvalued during an appraisal, applying equitable estoppel would require Wong to pay Flynn-Kerper greater than the fair market value of the shares on the date of purchase. This would contravene Section 6(d) of the ESOP, which required that the shares be purchased at fair market value on the date of purchase. Joining the Fourth Circuit, the panel held that the defensive use of equitable estoppel is barred when estopping the plaintiff would contradict an ERISA plan’s express terms. The panel therefore reversed the district court’s judgment and remanded.

 

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/06/07/19-56289.pdf

 

Brighton Collectibles, LLC v. Hockey (CA2/6 B307235 6/3/21) Unpaid Wages on Discharge/Anti-SLAPP

 

Natalie Hockey directed her modeling agency to negotiate a contract on her behalf with Brighton Collectibles, LLC.  They agreed that Brighton would pay Hockey $3,000 for a one-day photoshoot.  They also agreed on how and when payment would be made.   

           

After the photoshoot, Brighton paid Hockey according to the terms of their contract.  But Hockey wanted more for her single day of work.  She sued Brighton, alleging that Brighton failed to comply with state law despite adhering to the terms of the contract it negotiated with her own agent.  She claimed she was due the full $3,000 on the day of the shoot, and Brighton’s failure to pay entitled her to $90,000.  Here we decide that such deceit, if proven at trial, does not entitle her to a bonus.

           

Brighton appeals from the trial court’s order granting Hockey’s anti-SLAPP motion to strike Brighton’s cross-claim for fraud.  (Code Civ. Proc., § 425.16.)  Brighton contends the court’s order should be vacated because:  (1) Hockey did not show that Brighton’s cross-claim arose out of protected conduct, rendering the anti-SLAPP statute inapplicable, and (2) even if the anti-SLAPP statute does apply, Brighton produced prima facie evidence in support of its claim.  We vacate the trial court’s order. 

 

https://www.courts.ca.gov/opinions/documents/B307235.PDF  

 

Usher v. White (CA4/1 D077133 5/28/21) Wage and Hour/Owner Liability

 

Plaintiffs Jackie Oneal Usher (Usher) and Eric Leung (Leung), on behalf of themselves and all others similarly situated (sometimes collectively, plaintiffs), appeal the judgment for defendant Shirley White (Shirley).  Plaintiffs in 2014 brought a putative wage-and-hour class action lawsuit against defendants White Communications, LLC (White Communications or the company) and DirecTV, LLC (DirecTV).  In early 2018, plaintiffs amended their complaint to add Shirley and her son Jeff White (Jeff), based on Labor Code section 558.1, which became effective on January 1, 2016. 

 

Under section 558.1, a “natural person who is an owner, director, officer, or managing agent” of an employer may be personally liable if that person, on behalf of the employer, “violates, or causes to be violated” certain wage and hour laws as provided in the statute.  The court granted summary judgment for Shirley, concluding as a matter of law she was not liable under section 558.1 because it found undisputed evidence that she did not participate in the determination to classify plaintiffs as independent contractors.  The court therefore held Shirley did not “cause[]” any violation of the enumerated sections of the Labor Code, as set forth in section 558.1 and in plaintiffs’ operative complaint.

 

As we explain, we interpret the words “violates, or causes to be violated” in section 558.1 in their ordinary meaning to impose liability on an “owner” such as Shirley if, when acting on behalf of an employer, the “owner” has personal involvement in the enumerated violations in section 558.1; or, absent personal involvement, has sufficient participation in the activities of the employer—including, for example, over those responsible for the alleged wage and hour violations—such that the “owner” may be deemed to have contributed to, and thus have “cause[d]” such violations.

 

The undisputed evidence in this case shows that Shirley was not personally involved in the determination to classify plaintiffs as independent contractors, which purported misclassification forms the basis of their class and subclass allegations and their 10 causes of action; and that she also lacked sufficient participation in the operation and management of White Communications to create a triable issue of material fact that she “cause[d]” the wage and hour violations.  We therefore independently conclude the order granting Shirley summary judgment was proper.

 

https://www.courts.ca.gov/opinions/documents/D077133.PDF

 

General Atomics v. Super. Ct. (CA4/1 D078211 5/28/21) Wage and Hour/Wage Statements

 

Tracy Green sued her employer, General Atomics, based on its alleged failure to provide accurate, itemized wage statements showing “all applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate by the employee.”  (Lab. Code, § 226, subd. (a)(9).)  Green maintained that General Atomics “failed to identify the correct rate of pay for overtime wages” because its wage statements showed “0.5 times the regular rate of pay rather than 1.5.”

 

General Atomics moved for summary adjudication, challenging Green’s theory of liability.  It contended that its wage statements complied with the statute because they showed the total hours worked, with their standard rate or rates, and the overtime hours worked, with their additional premium rate.  The trial court issued an order denying the motion.  General Atomics challenges that order by petition for writ of mandate.

We conclude the trial court erred by determining that General Atomics’ wage statements violate section 226.  The wage statements show the applicable hourly rates in effect and the corresponding number of hours worked at each rate.  In the wage statements provided by General Atomics, the applicable hourly rates are (1) the standard hourly rate determined by contract or other agreement between the employee and the employer and (2) the overtime premium hourly rate, determined by statute, that must be added to the employee’s standard wages to compensate the employee for working overtime.  These rates are plainly shown, along with the hours worked at each rate.

 

While other formats may also be acceptable, given the complexities of determining overtime compensation in various contexts, the format adopted by General Atomics adequately conveys the information required by statute.  It also allows employees to readily determine whether their wages were correctly calculated, which is the central purpose of section 226.  Indeed, the alternative format Green proposes would make such a determination more difficult, rather than less.  We therefore grant the petition for writ of mandate.

 

https://www.courts.ca.gov/opinions/documents/D078211.PDF

 

Magadia v. Wal-Mart Associates (9th Cir. 19-16184 5/28/21) Wage and Hour/PAGA/Meal Breaks & Wage Statements

 

In a class action suit brought by Roderick Magadia, a former Walmart employee, alleging violations of California Labor Code’s meal-break and wage-statement requirements, the panel: (1) vacated the district court’s judgment and award of damages on a Cal. Labor Code § 226.7 claim for meal-break violations and remanded with instructions to further remand the claim to state court; and (2) reversed the judgment and award of damages on two Cal. Labor Code § 226(a) claims for wage-statement violations and remanded with instructions to enter judgment for Walmart.

 

The panel held that Magadia lacked Article III standing to bring a California Private Attorney General Act (“PAGA”) claim for Walmart’s meal-break violations since he himself did not suffer injury. Specifically, the panel noted that qui tam actions are a well-established exception to the traditional Article III analysis, but held that PAGA’s features diverged from Vermont Agency of Nat. Res. v. U.S. ex rel. Stevens, 529 U.S. 765 (2000)’s assignment theory of qui tam injury. The panel also held that PAGA’s features departed from the traditional criteria of qui tam statutes.

 

The panel next considered whether Magadia had standing to bring his two wage-statement claims under Cal. Labor Code § 226(a), which requires employers to accurately furnish certain itemized information on its employees’ wage statements. The panel held that a violation of § 226(a) created a cognizable Article III injury here. To determine whether the violation of a statute constituted a concrete harm, the panel conducted a two-part inquiry. First, the panel held that § 226(a) protected employees’ concrete interest in receiving accurate information about their wages in their pay statements; and Walmart’s failure to disclose statutorily required information on Magadia’s wage documents, if true, violated a “concrete interest.” Second, Magadia sufficiently alleged that Walmart’s § 226(a) violation – depriving him of accurate itemized wage statements – presented a material risk of harm to his interest in the statutorily guaranteed information. The panel also concluded that other class members who could establish § 226(a) injuries had standing to collect damages.

 

Finally, the panel considered the merits of Magadia’s two claims under Cal. Labor Code § 226(a). First, the panel held that the wage statement law did not require Walmart to list the rate of the MyShare overtime adjustment on employees’ wage statements, and the district court erred in holding otherwise. Because Walmart must retroactively calculate the MyShare overtime adjustment based on work from six prior periods, the panel did not consider it an hourly rate “in effect” during the pay period for purposes of § 226(a)(9), and Walmart complied with the wage statement law here. Second, the panel held that Walmart’s Statement of Final Pay did not violate the wage statement statute. Namely, Walmart complied with Cal. Labor Code § 226(a)(6) when it furnished the required pay-period dates to Magadia and other terminated employees in their final wage statements at the end of the next semimonthly pay period.

 

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/05/28/19-16184.pdf

 

Felczer v. Apple (CA4/1 D077314M, filed 4/24/21, mod. 5/24/21) Post-Judgment Interest/Wage and Hour

 

THE COURT:

 

On the court’s own motion, it is ordered that the opinion filed on April 23, 2021 be modified on page 2 at the end of “FACTUAL AND PROCEDURAL BACKGROUND,” to add as footnote 1 the following, which will require renumbering of all subsequent footnotes:

 

1  Although Hogue & Belong, the law firm that represented plaintiffs [in a wage and hour action] in the trial court, was added as a party to the notice of appeal and treated as such by appellate counsel, the firm is not a party in this case.  Only parties of record may appeal.  (County of Alameda v. Carleson (1971) 5 Cal.3d 730, 736.)  “A party of record is a person named as a party to the proceedings or one who takes appropriate steps to become a party of record in the proceedings.”  (In re Miguel E. (2004) 120 Cal.App.4th 521, 539.)  In order to become a party, Hogue & Belong could have petitioned the trial court for leave to intervene (Code Civ. Proc., § 387) or moved to vacate the judgment to vindicate their interests after the court’s orders.  (Carleson, at p. 736; Code Civ. Proc., § 663.)  The firm took neither of these steps.

 

There is no change in judgment.

 

https://www.courts.ca.gov/opinions/documents/D077314M.PDF

 

Franklin v. Cmty. Reg’l Med. Ctr. (9th Cir. 19-17570 5/21/21) Nonsignatory to Arbitration Agreement/Wage and Hour

 

The panel affirmed the district court’s order granting defendant’s motion to compel arbitration of wage-and-hour claims brought by a nurse under the Fair Labor Standards Act and California law.

 

Plaintiff signed a Mediation and Arbitration Policy and Agreement with the staffing agency for which she worked. She also signed a Travel Nurse Assignment Contract with the staffing agency, establishing the terms of her assignment to work at defendant Community Regional Medical Center’s hospital. The Assignment Contract also included an arbitration provision.

 

The panel held that the defendant Hospital, a nonsignatory, could compel arbitration because plaintiff’s claims against the Hospital were intimately founded in and intertwined with her contracts with the staffing agency. Thus, under California law, plaintiff was equitably estopped from avoiding the arbitration provisions of her employment contracts.

 

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/05/21/19-17570.pdf

 

Banister v. Marinidence Opco, LLC (CA1/5 A159815, filed 4/30/21, pub. ord. 5/21/21) Unsigned Arbitration Agreement

 

Marinidence Opco, LLC, Providence Group, Inc., and Tommy Siqueiro, III (collectively “Marinidence”) challenge the trial court’s denial of their motion to compel [employment] arbitration. Because we conclude their appeal lacks merit, we affirm.

 

https://www.courts.ca.gov/opinions/documents/A159815.PDF

Walsh v. Browne (9th Cir. 20-15765 5/18/21) DOL Not Party to Arbitration Agreement

 

The panel affirmed the district court’s denial of an alleged employer’s motion to compel arbitration, arising from the Secretary of Labor’s Fair Labor Standards Act (“FLSA”) enforcement action that sought relief on behalf of one party to a private arbitration agreement.

 

The panel held that although the Federal Arbitration Act favored arbitration agreements, the Supreme Court’s decision in EEOC v. Waffle House, Inc., 534 U.S. 279, 289 (2002) (holding that the FAA addresses enforceability only as to the parties to the arbitration agreement), dictated that the Secretary could not be compelled to arbitrate this case, even if the employees had agreed to arbitration. As in Waffle House, the remedial statute at issue here – Sections 16(c) & 17 of the FLSA – unambiguously authorized the Secretary to obtain monetary relief on behalf of specific aggrieved employees. There was nothing in either section suggesting that an arbitration agreement between the parties to the underlying employment relationship impacted the Secretary’s enforcement power. Also, there was no dispute that, like the EEOC in Waffle House, the Secretary was not a party to the arbitration agreement between the alleged employer and the employee delivery drivers.

 

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/05/18/20-15765.pdf

 

Bruni v. The Edward Thomas Hospitality Corporation (CA2/3 B305689 5/14/21) Right to be Rehired/SMMC § 4.66.010 et seq.

 

Plaintiff and appellant Theodore Bruni (Bruni) appeals a judgment of dismissal following the sustaining of a demurrer by defendants and respondents The Edward Thomas Hospitality Corporation and Neptune’s Walk, LLC, dba Hotel Casa del Mar (collectively, the Hotel).

           

Bruni was a restaurant server who alleged he was laid off after about four months when his employer, the Hotel, eliminated all part-time positions.  Bruni brought this action alleging a violation of Santa Monica Municipal Code section 4.66.010 et seq.  (the recall ordinance), which provides laid off employees that have been employed by the employer for six months or more with a right to be rehired in certain circumstances.  We conclude, as did the trial court, that the right of recall does not apply here because Bruni did not work for the Hotel for “six months or more” before he was involuntarily separated from employment for economic reasons.  (Ibid.)

           

Bruni had a prior stint of employment with the Hotel that lasted about ten months, which ended when he voluntarily resigned due to scheduling difficulties.  However, the purpose of the recall ordinance is to protect employees who were involuntarily laid off due to economic circumstances—not to protect employees who quit for personal reasons.  Therefore, we conclude that Bruni’s earlier period of employment that ended with his voluntary resignation does not count toward the six-month minimum period of employment, leaving him ineligible for recall under the ordinance.  Accordingly, Bruni failed to state a cause of action under the recall ordinance.

           

Additionally, Bruni attempted to state a Tameny  tort claim based on the Hotel’s allegedly wrongful failure to rehire him in violation of public policy.  We conclude the Tameny claim was not well pled because there was no violation of the recall ordinance on which the Tameny claim was based.  Moreover, a Tameny claim must be predicated on a fundamental public policy that is expressed in a constitutional or statutory provision (Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1995 (Gantt)), as opposed to a public policy that finds expression in a municipal ordinance.

           

Therefore, the judgment of dismissal is affirmed.

 

https://www.courts.ca.gov/opinions/documents/B305689.PDF

 

Oakland Police Officers' Assn. v. City of Oakland (CA1/1 A158662, filed 4/26/21, mod. & rehg. den. 5/13/21) POBRA 

 

It is ordered that the opinion filed herein on April 26, 2021, be modified as follows:

 

1.  On page 22, in the first full paragraph beginning with “Under this construction…,” remove the word “may” and replace it with “must”, so that the paragraph shall now read as:

 

“Under this construction of subdivision (g), and consistent with City of Pasadena, no materials identified in subdivision (g) must be disclosed prior to an initial interrogation of a peace officer.”

 

The modification does not change the appellate judgment.  (Cal. Rules of Court, rule 8.264(c)(2).)

           

Respondent’s petition for rehearing is denied.

https://www.courts.ca.gov/opinions/documents/A158662M.PDF

 

City of Calexico v. Bergeson (CA4/1 D076963 5/13/21) Police Officer Termination

 

Rudy Alarcon filed a petition for writ of mandate seeking to invalidate hearing officer Robert Bergeson’s decision upholding the City of Calexico’s (City) termination of Alarcon’s employment as a City police officer  The City filed a petition for writ of mandate challenging Bergeson’s decision to award Alarcon back pay based on his finding that the City failed to provide Alarcon with sufficient predisciplinary notice of allegations that Alarcon had been dishonest during the investigation that led to his termination.

           

The trial court consolidated the petitions and, on September 24, 2019, issued a written ruling that denied both petitions.  As to Alarcon’s petition, the trial court determined that Alarcon had not met his burden to establish that the charges against him were barred by the applicable statute of limitations.  The trial court also found that the weight of the evidence demonstrated that Alarcon had “used force” and “discourteous language” during the arrest that led to his termination.  With respect to the City’s petition, the trial court determined that “the hearing officer’s lengthy finding that the dishonesty charges were not properly noticed does not rise to the level of an abuse of discretion.”

           

On November 7, 2019, Alarcon filed a notice of appeal from the trial court’s September 24 ruling.  On November 21, 2019, the trial court entered a document titled “judgment” that incorporated the court’s September 24, 2019 ruling.  On January 21, 2020, the City filed a cross-appeal from the November 21 “judgment.”

           

In his appeal, Alarcon claims that the City’s termination of his employment “represents an abuse of discretion.”  We conclude that Alarcon has failed to establish any such abuse and we affirm the trial court’s denial of his petition for writ of mandate.

           

With respect to the City’s cross-appeal, we conclude that the appeal is untimely and must be dismissed.  The September 24, 2019 ruling was a final judgment from which the City failed to timely appeal.  (See Laraway v. Pasadena Unified School Dist. (2002) 98 Cal.App.4th 579, 582–583 (Laraway) [concluding that an order that “completely resolved all issues between all parties” on petitioner’s motion for writ of mandamus and prohibition and complaint for injunctive and declaratory relief was a final judgment from which no timely appeal was taken and stating that the “[r]ules of [c]ourt do not provide, once a judgment or appealable order has been entered, . . . the time to appeal can be restarted or extended by the filing of a subsequent judgment or appealable order making the same decision”].)

 

Accordingly, we affirm the trial court’s denial of Alarcon’s petition for writ of mandate and we dismiss the City’s cross-appeal.

 

https://www.courts.ca.gov/opinions/documents/D076963.PDF

 

Smith v. BP Lubricants USA Inc. (CA4/2 E073174 5/12/21) FEHA Harassment/Unruh Act/IIED

 

Robert Smith’s employer, Najjar Lube Centers, Inc. dba Jiffy Lube, held a presentation for its employees to learn about a new Castrol product.  Castrol employee Gus Pumarol led the presentation.  Smith alleges that Pumarol made several comments to Smith during the presentation that he considered racist and offensive.  Smith sued BP Lubricants USA, Inc. dba Castrol (BP) and Pumarol for harassment under the Fair Employment and Housing Act (Gov. Code § 12940 et seq. (FEHA)) and for discrimination under the Unruh Act (Civ. Code, § 51, subd. (b)).  Smith also sued Pumarol for intentional infliction of emotional distress (IIED).  The trial court sustained BP and Pumarol’s demurrer without leave to amend, and Smith timely appealed.

 

We reverse the judgment.  We affirm the trial court’s order sustaining BP and Pumarol’s demurrer to Smith’s FEHA claim without leave to amend.  We conclude, however, that Smith sufficiently alleged claims for IIED and violation of the Unruh Act.  We therefore reverse the trial court’s orders sustaining BP and Pumarol’s demurrer to those claims without leave to amend.

 

https://www.courts.ca.gov/opinions/documents/E073174.PDF

 

Salazar v. See's Candy Shops, Incorporated (CA2/2 B300778, filed 4/26/21, pub. ord. 5/10/21) Wage and Hour Class Certification

 

Debbie Salazar appeals from an order denying her motion to certify a class of employees of respondents See’s Candies, Inc., and See’s Candy Shops, Incorporated (collectively, See’s).  Salazar alleges that See’s did not provide required second meal breaks to shop employees who worked shifts longer than 10 hours.  It is undisputed that See’s official policy is to provide such breaks.  However, Salazar contends that, in practice, See’s consistently failed to provide the breaks because the preprinted form that it used to schedule employee shifts did not include a space for second meal breaks.

 

The trial court denied class certification on the grounds that:  (1) individual issues would predominate concerning whether See’s consistently applied a practice of failing to offer second meal breaks, and (2) Salazar failed to provide a trial plan that offered a manageable method to adjudicate classwide liability, including See’s defenses, without individual inquiry.

 

We affirm.  The trial court carefully analyzed the evidence that Salazar presented in support of her claim that she could establish liability through common proof.  That evidence included time records showing that 24 percent of shifts longer than 10 hours actually included a second meal period.  In light of that evidence, the trial court reasonably concluded that at least some class members were offered a second meal period in accordance with the law.  Thus, individual testimony would be necessary to show that See’s consistently applied an unlawful practice, resulting in a trial that would “devolve into a series of mini-trials.”  Moreover, Salazar failed to provide a trial plan that would permit See’s to “present its defenses without individual inquiry.”  The trial court therefore properly exercised its discretion to deny class certification.

 

https://www.courts.ca.gov/opinions/documents/B300778.PDF

 

HJTA v. Cal. Secure Choice (9th Cir. 20-15591 5/6/21) No ERISA Preemption of CalSavers

 

Affirming the district court’s dismissal, the panel held that ERISA does not preempt a California law that creates CalSavers, a state-managed individual retirement account program for eligible employees of certain private employers that do not provide their employees with a tax-qualified retirement savings plan.

 

The panel held that Congress’s repeal of a 2016 Department of Labor rule that sought to exempt CalSavers from ERISA under a safe harbor did not resolve the preemption question. Further, even if ERISA’s safe harbor did not apply to CalSavers, the panel would still need to determine whether CalSavers otherwise qualified as an ERISA program.

 

The panel concluded that CalSavers is not an ERISA plan because it is established and maintained by the State, not employers; it does not require employers to operate their own ERISA plans; and it does not have an impermissible reference to or connection with ERISA. Nor does CalSavers interfere with ERISA’s core purposes. Accordingly, ERISA does not preempt the California law.

 

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/05/06/20-15591.pdf

Rosales v. Uber Technologies, Inc. (CA2/8 B305546 4/30/21) Arbitration/PAGA

 

Defendant Uber Technologies, Inc. moved to compel arbitration in a case where the plaintiff, Damaris Rosales, alleged a single cause of action for wage violations under the Private Attorneys General Act (PAGA, Lab. Code, § 2698 et seq.).  Plaintiff was an Uber driver under a written agreement stating she was an independent contractor and all disputes would be resolved by arbitration under the Federal Arbitration Act (FAA, 9 U.S.C. § 1 et seq.).  The agreement delegated to the arbitrator decisions on the enforceability or validity of the arbitration provision.  The trial court denied defendant’s motion to compel arbitration.

 

Defendant contends plaintiff cannot bring a PAGA claim in court unless or until an arbitrator first decides whether she has standing to bring a PAGA claim—that is, whether she is an employee who can seek penalties under PAGA on behalf of the state, or an independent contractor who cannot.  We conclude, as has every other California court presented with this or similar issues, that the threshold question whether plaintiff is an employee or an independent contractor cannot be delegated to an arbitrator.  Accordingly, we affirm the trial court’s order.

 

https://www.courts.ca.gov/opinions/documents/B305546.PDF

 

Martinez v. Rite Aid Corporation (CA2/7 B292672 4/30/21)  Wrongful Termination/ Compensatory Damages

 

In 2008 Maria Martinez filed this action against her former employer, Rite Aid Corporation, and her former supervisor, Kien Chau.  In 2010 a jury returned a special verdict in Martinez’s favor and awarded her $3.4 million in compensatory damages and $4.8 million in punitive damages.  Following an appeal by Rite Aid and Chau, this court reversed the judgment and remanded the case for a new trial on compensatory damages on Martinez’s causes of action for wrongful termination in violation of public policy against Rite Aid and intentional infliction of emotional distress against Rite Aid and Chau.

 

At the 2014 retrial, the jury awarded Martinez $321,000 on her wrongful termination cause of action against Rite Aid, $0 on her intentional infliction of emotional distress cause of action against Rite Aid, and $20,000 on her intentional infliction of emotional distress cause of action against Chau.  Following an appeal by Martinez, this court reversed the judgment and remanded the case for another new trial on compensatory damages on Martinez’s wrongful termination cause of action against Rite Aid and her intentional infliction of emotional distress causes of action against Rite Aid and Chau.  Recognizing that the case would be tried for a third time, the court “offer[ed] . . . guidance to the trial court on retrial,” including that the special verdict form ask the jury to apportion noneconomic damages for intentional infliction of emotional distress between Chau and other Rite Aid employees.

 

At the 2018 retrial, the jury awarded Martinez $2,012,258 on her wrongful termination cause of action against Rite Aid and $4 million on her intentional infliction of emotional distress causes of action against Rite Aid and Chau.  Rite Aid argues the trial court prejudicially erred by rejecting this court’s direction that the special verdict form require the jury to apportion noneconomic damages for intentional infliction of emotional distress between Chau and other Rite Aid employees.  Rite Aid contends the trial court also erroneously instructed the jury about the damages to be awarded for intentional infliction of emotional distress and about Martinez’s post-termination earnings.  Rite Aid further asserts the trial court should have reduced the past economic damages award for wrongful termination by the amount of Martinez’s post-termination earnings. 

 

Actual earnings from substitute employment must be offset from lost earnings awards.  We accordingly agree with Rite Aid that Martinez’s post-termination earnings should have been deducted from the past economic damages award for wrongful termination, and we modify the judgment accordingly.  We affirm the judgment in all other respects.

 

https://www.courts.ca.gov/opinions/documents/B292672.PDF

 

Assn. for L.A. Deputy Sheriffs v. Macias (CA2/8  B295086 4/30/21) Union Board Member Removal

 

In 2014, the Association for Los Angeles Deputy Sheriffs (ALADS) sued Armando Macias and John Nance (collectively, defendants) for breaches of their fiduciary duty to ALADS as members of its board of directors.  The breaches of fiduciary duty occurred after the board removed Mr. Macias as a director and president of ALADS, on the ground he was not qualified under the bylaws to be a director (a requirement for holding an executive office).  Defendants refused to accept Mr. Macias’s removal, taking what they now downplay as merely “ill-advised” steps to contest the removal and remain in charge.  These included informing the staff Mr. Macias was still president; obtaining a cashier’s check for $100,000 from a political action committee (PAC) account of ALADS to retain a law firm; purporting to conduct board meetings without a quorum; and so on, causing great disruption in ALADS’s management.

           

ALADS obtained a temporary restraining order requiring return of the $100,000, and several weeks later a preliminary injunction preventing Mr. Macias from claiming to be a director.  Four years later, the case was tried to the court over seven days in May 2018.  ALADS sought several categories of damages caused by defendants’ disruption of ALADS’s management, including $7.8 million in compensation for its members, based on a 140-day delay in negotiating a new memorandum of understanding (MOU) with Los Angeles County.  ALADS offered lay and expert testimony to prove the $7.8 million of lost salary it sought to recover on behalf of its members.  That evidence was admitted without objection from defendants.  Defendants then asserted in closing arguments, for the first time in the four-year course of this litigation, that ALADS lacked standing to recover monetary damages on behalf of its members.

 

The trial court entered judgment for ALADS, awarding damages sustained by ALADS and a permanent injunction, but found ALADS did not have standing to recover monetary compensation for its members.  After the judgment was entered, ALADS sought cost-of-proof sanctions (Code Civ. Proc., § 2033.420) from defendants.  The court denied the motion.

           

Both parties appealed.  We conclude the trial court did not err in its conclusion defendants breached their fiduciary duties to ALADS, or in its award of damages for harm to ALADS (except in one very minor respect), or in its award of a permanent injunction.  The court did err, however, when it concluded ALADS did not have standing to seek the $7.8 million in damages on behalf of its members.  ALADS proved those damages without objection from defendants and had standing to do so.  We further conclude ALADS was entitled to cost-of-proof sanctions. 

 

Accordingly, we amend the judgment to include the $7.8 million in damages to ALADS’s members, affirm the judgment as amended, and remand the matter to the trial court to determine the appropriate amount of cost-of-proof sanctions.   

 

https://www.courts.ca.gov/opinions/documents/B295086.PDF

 

Verceles v. L.A. Unified School Dist. (CA2/7 B303182, filed 4/19/21, ord. pub. 4/29/21) FEHA/Anti-SLAPP 

 

Junnie Verceles appeals the order granting the Los Angeles Unified School District’s special motion to strike his complaint for discrimination and retaliation in violation of California’s Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.).  Verceles contends the trial court erred in finding his causes of action arose from protected activity within the meaning of Code of Civil Procedure section 425.16, subdivision (e) and he had failed to establish a probability of prevailing on the merits of his claims.  Verceles also appeals the court’s award of attorney fees to the District.  We reverse. 

 

https://www.courts.ca.gov/opinions/documents/B303182.PDF 

 

Calif. Truck. Ass’n v Bonta (9th Cir. 20-55106 4/28/21) AB 5 ABC Test/FAAAA Preemption 

 

Reversing the district court’s order preliminarily enjoining enforcement, against any motor carrier doing business in California, of California’s Assembly Bill 5, which codified the judge-made “ABC test” for classifying workers as either employees or independent contractors, the panel held that application of AB-5 to motor carriers is not preempted by the Federal Aviation Administration Authorization Act of 1994.  

 

In Dynamex Operations W. v. Superior Ct., 4 Cal. 5th 903 (2018), the California Supreme Court adopted the ABC test. The California legislature enacted AB-5, codifying the ABC test, in September 2019. California Trucking Association, a trade association representing motor carriers that hire independent contractors who own their own trucks, and two independent owner-operators filed suit, seeking to enjoin enforcement of AB-5. The district court granted a preliminary injunction against enforcement of AB-5 against any motor carrier doing business in California.  

 

The panel held that California Trucking Association and its members had standing to bring this suit because they demonstrated that their policies were presently in conflict with the challenged provision, and they had a concrete plan to violate AB-5. In addition, CTA established that there was a threat to initiate proceedings against its members.  

 

The panel held that the district court abused its discretion by enjoining the State of California from enforcing AB-5 against motor carriers doing business in California on the ground that such enforcement is preempted by the FAAAA. The panel held that because AB-5 is a generally applicable labor law that affects a motor carrier’s relationship with its workforce and does not bind, compel, or otherwise freeze into place the prices, routes, or services of motor carriers, it is not preempted by the FAAAA.  

 

Dissenting, Judge Bennett wrote that AB-5 both affects motor carriers’ relationship with their workers and significantly impacts the services motor carriers are able to provide to their customers, and it therefore is preempted as applied to California Trucking Association’s members. 

 

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/04/28/20-55106.pdf 

 

Towner v. County of Ventura (CA2/7 B306283 4/28/21) POBRA 

 

Tracy Towner appeals from an order granting the special motion to strike (Code Civ. Proc., § 425.16; anti-SLAPP statute) filed by defendants County of Ventura (County), Ventura County Office of the District Attorney (VCDA), District Attorney Gregory D. Totten, Chief Assistant District Attorney Michael Schwartz, and outside counsel Edward Zappia (collectively, the County defendants).  Towner worked for VCDA as an investigator.  He alleged the County defendants terminated him for dishonesty based on his testimony at a fellow peace officer’s administrative hearing before the Civil Service Commission of Ventura County (Commission).  After Towner appealed the termination decision to the Commission, the County filed a petition for writ of mandate requesting the superior court enjoin the Commission from hearing Towner’s appeal due to an alleged conflict of interest.  The County attached as exhibits to its petition excerpts from an investigative report on Towner’s conduct and notices of discipline from VCDA to Towner relating to VCDA’s termination decision.  The superior court denied the County’s request for ex parte relief, and after a hearing, the Commission reversed the County’s termination of Towner and ordered him reinstated. 

 

Towner then filed this action, alleging five causes of action, including for violation of the Public Safety Officers Procedural Bill of Rights Act (Gov. Code, § 3300 et seq.; POBRA) and negligence per se based on violation of Penal Code 832.7. Towner contends the trial court erred in granting the County defendants’ special motion to strike the POBRA and section 832.7 causes of action because the County’s disclosure of his confidential personnel records was illegal as a matter of law and therefore was not protected activity under Code of Civil Procedure section 425.16.  Because the County defendants’ willful disclosure of Towner’s confidential personnel records without complying with mandatory procedures for disclosure was punishable as a misdemeanor under Government Code section 1222, the disclosure did not constitute protected activity.  We reverse. 

 

https://www.courts.ca.gov/opinions/documents/B306283.PDF 

 

Oakland Police Officers' Assn. v. City of Oakland (CA1/1 A158662 4/26/21) POBRA

 

This appeal concerns the meaning of certain requirements described in section 3303, subdivision (g) of the Public Safety Officers Procedural Bill of Rights Act (Gov. Code, § 3300 et seq., POBRA), mandating the disclosure of complaints, reports, and other materials to a peace officer under investigation for misconduct.  In December 2017, a citizen filed a complaint against officers from the Oakland Police Department (Department), alleging that the officers violated the citizen’s rights in various ways while conducting a mental health welfare check.  Following an internal investigation, the Department cleared the officers of misconduct.  The Oakland Community Police Review Agency (CPRA), a civilian oversight agency with independent authority to investigate claims of police misconduct, conducted its own investigation.  Before the CPRA’s formal interrogation of the officers, counsel for the officers demanded copies of all “reports and complaints” prepared or compiled by investigators pursuant to section 3303, subdivision (g).  The CPRA refused to disclose these materials.  Based on its investigation, the CPRA determined that officers knowingly violated the complainant’s civil rights by entering the residence and seizing property without a warrant, and then actively concealed this violation from investigators.

   

The officers and their police union filed a petition for writ of mandate alleging that the City of Oakland (City) violated their procedural rights by refusing to disclose reports and complaints prior to holding the supplemental interrogations.  The Fourth District Court of Appeal previously considered the same issue in Santa Ana Police Officers’ Association v. City of Santa Ana (2017) 13 Cal.App.5th 317, 328 (City of Santa Ana), holding that POBRA requires the disclosure of such materials after an initial interrogation and “ ‘prior to any further interrogation.’ ”  Feeling constrained by City of Santa Ana, the trial court below granted the petition and ordered the City to disregard the interrogation testimony in any current or future disciplinary proceedings against the officers.  

 

We conclude that mandatory disclosure of complaints and reports prior to any subsequent interrogation of an officer suspected of misconduct is inconsistent with the plain language of the statute and undermines a core objective under POBRA—maintaining the public’s confidence in the effectiveness and integrity of law enforcement agencies by ensuring that internal investigations into officer misconduct are conducted promptly, thoroughly, and fairly.  Under our reading of section 3303, subdivision (g), an investigating agency’s disclosure obligations should instead be guided by whether the agency designates otherwise discoverable materials as confidential. While confidential materials may be withheld pending the investigation—and may not be used as the basis for disciplinary proceedings absent disclosure—nonconfidential material should be disclosed upon request.  Accordingly, we reverse the judgment and remand the matter for further proceedings consistent with this opinion. 

 

https://www.courts.ca.gov/opinions/documents/A158662.PDF

 

Gomez v. The Regents of the University of Cal (CA4/1 D077181.4/23/21) Wage and Hour/PAGA

 

Guivini Gomez is a former employee of the Regents of the University of California (Regents).  She sued the Regents, as the named plaintiff in a purported class action, claiming the Regents failed to pay her the required minimum wage for all hours she worked.  However, she does not allege that the Regents set her hourly wage below the minimum wage as established by California law.  Instead, she contends the Regents’ time-keeping procedures of rounding hours and automatically deducting 30 minute meal breaks resulted in her not receiving the minimum wage for all hours she actually worked.  In addition to claiming the Regents did not pay her the minimum wage, Gomez also sought penalties under the Private Attorneys General Act of 2004, Labor Code section 2698 et seq. (PAGA).

 

The superior court sustained the Regents’ demurrer without leave to amend and entered judgment in their favor.  Gomez appeals, arguing the superior court erred in concluding that the minimum wage laws do not apply to the Regents and that she could not seek penalties against the Regents under PAGA as a matter of law.

 

https://www.courts.ca.gov/opinions/documents/D077181.PDF

 

Felczer v. Apple (CA4/1 D077314 4/23/21) Postjudgment Interest on Prejudgment Interest

 

This case presents a single question for our determination:  in a civil case [wage and hour action] where the prevailing party is entitled to recover certain litigation expenses and attorney’s fees from the losing party, when does postjudgment interest on an award of prejudgment costs begin to run?  As we discuss below, accrual begins on the date of the judgment or order that establishes the right of a party to recover a particular cost item, even if the dollar amount has yet to be ascertained.

 

https://www.courts.ca.gov/opinions/documents/D077314.PDF

Citizens of Humanity, LLC v. Ramirez (CA2/5 B299469 4/19/21)  Wage & Hour/Attorney’s Fees

 

An employee brought a wage and hour class action against her employer.  Prior to certification, the action was settled.  The employer paid a sum to the employee to resolve her individual claims, and she dismissed the class claims without prejudice, with court approval.  Thereafter, the employer brought the current malicious prosecution action against the employee and her counsel.  The employee and her counsel each moved to strike the action under the anti-SLAPP law (Code Civ. Proc., § 425.16).  The trial court denied the anti-SLAPP motions on the basis that the employer established a prima facie showing of prevailing on its malicious prosecution cause of action.  We disagree.  As the prior action resolved by settlement, the employer is unable to establish the action terminated in its favor as a matter of law.  We therefore reverse and remand for determination of one unadjudicated anti-SLAPP issue, and whether the employee and her counsel are entitled to an award of attorney fees.

 

https://www.courts.ca.gov/opinions/documents/B299469.PDF

 

Wilson v. Craver (9th Cir. 18-56139 4/19/21) ERISA

 

The panel affirmed the district court’s dismissal of an action alleging breach of fiduciary duty under the Employee Retirement Income Security Act in the management of the assets of a pension plan.

 

An employee of Edison International, Inc., alleged that fiduciaries of Edison’s employee stock ownership plan breached their duty of prudence by allowing employees to continue to invest in Edison stock after learning that the stock was artificially inflated.

 

The panel held that the plaintiff failed to state a duty of prudence claim under the Fifth Third standard because she failed plausibly to allege an alternative action so clearly beneficial that a prudent fiduciary could not conclude that it would be more likely to harm the fund than to help it. Agreeing with other Circuits, and distinguishing a Second Circuit case, the panel held that general economic principles are not enough on their own to plead duty-of-prudence violations.

 

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/04/19/18-56139.pdf

 

Bill Signed by Governor (4/16/21)

 

SB 93, Committee on Budget and Fiscal Review. Employment: rehiring and retention: displaced workers: COVID-19 pandemic.

 

Salisbury v. City of Santa Monica (9th Cir. 20-55039 4/16/21) FHAA

 

Affirming the district court’s summary judgment in favor of the City of Santa Monica, the panel held that the Fair Housing Amendments Act of 1988 does not require landlords to accommodate the disability of an individual who neither entered into a lease nor paid rent in exchange for the right to occupy the premises.

 

Plaintiff lived with his father in a mobile home on land rented from the City of Santa Monica. Upon his father’s death, plaintiff refused to vacate the mobile home park, and he asked the City to accommodate his disability by waiving park rules to allow him to store his vehicle immediately next to his mobile home.

 

The panel held that, by its plain language, the FHAA does not apply to claims by plaintiffs who never themselves or through an associate entered into a lease or paid rent to the defendant landlord. As to occupants requesting accommodation, the FHAA’s disability discrimination provisions apply only to cases involving a “sale” or “rental” for which the landlord accepted consideration in exchange for granting the right to occupy the premises. Applying a federal standard, rather than California landlord-tenant law, the panel concluded that because plaintiff never provided consideration in exchange for the right to occupy a space in the mobile home park, the FHAA did not apply to his claim for relief, and the City was not obligated to provide, offer, or discuss an accommodation.

 

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/04/16/20-55039.pdf