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Montano v. Wet Seal Retail, Inc. (CA2/4 B244107N, filed 1/7/15, reposted upon lifting of bankruptcy stay; modified 1/13/15, pub. ord. 1/30/17) PAGA/Arbitration


The Wet Seal Retail, Inc. (Wet Seal) appeals from the denial of its motion to compel arbitration of this wage and hour action brought by employee Elizabeth Montano.  Wet Seal also challenges the grant of Montano’s motion to compel discovery responses.  We affirm the order denying the motion to compel arbitration and dismiss the challenge to the discovery order as nonappealable.

Reynaga v. Roseburg Forest Products (9th Cir. 14-35028 1/26/17) Hostile Work Environment/Retaliation


The panel affirmed in part and reversed in part the district court’s summary judgment in favor of the defendant employer in an action brought by a millwright under Title VII, 42 U.S.C. § 1981, and Oregon state law.


The panel reversed the district court’s grant of summary judgment on the following claims: (1) hostile work environment, including employer liability through negligence; (2) disparate treatment with regard to the breaking of the plaintiff’s lock and the termination of his employment; (3) retaliation with regard to the termination of the plaintiff’s employment; and (4) corresponding state law claims. The panel affirmed on other claims.


The panel held that, as to the plaintiff’s hostile work environment claim, a reasonable trier of fact could conclude that (1) a lead millwright’s conduct was sufficiently severe or pervasive to create a hostile work environment, and (2) the employer knew about the lead millwright’s conduct and failed to take corrective remedial action.


As to the plaintiff’s disparate treatment claim, the panel held that he demonstrated the necessary prima facie case to survive summary judgment based on (1) the employer terminating his employment and (2) breaking into his locker. The panel further held that there was a genuine dispute of fact as to the employer’s discriminatory intent regarding those challenged actions.


As to the plaintiff’s retaliatory termination claim, the panel held that a reasonable trier of fact could conclude that the employer’s proffered reason for terminating the plaintiff was pretextual.


The panel affirmed the district court’s grant of summary judgment as to additional allegations of disparate treatment and retaliation.


Dissenting in part, Judge Bea wrote that he concurred in the majority’s opinion reversing the district court’s summary judgment on the plaintiff’s retaliatory termination claim. He dissented in part because the employer took prompt and effective action to rectify the hostile work environment experienced by the plaintiff and terminated him only after he repeatedly refused to work his assigned shifts. Judge Bea wrote that the district court therefore concluded properly that the plaintiff’s hostile work environment and disparate treatment claims should fail as a matter of law.


Alaska Airlines v. Schurke (9th Cir. 13-35574 1/25/17) Railway Labor Act Preemption/Flight Attendants’ Family Leave


The panel reversed the district court’s summary judgment in favor of the defendants in a labor law suit brought by Alaska Airlines, Inc.


A flight attendant claimed entitlement under the Washington Family Care Act to reschedule leave to care for her child who was ill. She and her union filed an administrative complaint with the State of Washington Department of Labor and Industries, which determined that the flight attendant was entitled to use her December vacation leave to care for her child in May.


The panel held that the Railway Labor Act preempted the flight attendant’s claim under the Washington Family Care Act, which provides that entitlement to leave is to be defined by an employee’s collective bargaining agreement. The panel concluded that the state right and the collective bargaining agreement were inextricably intertwined. Under the Railway Labor Act, the claim was a “minor dispute” about defining the rights guaranteed by the flight attendant’s collective bargaining agreement. She therefore was required to use the collective bargaining agreement grievance procedure to resolve her claim.


Dissenting, Judge Christen wrote that the flight attendant’s claim was not preempted because the right she asserted arose from the Washington Family Care Act, if it existed at all, and did not depend upon the collective bargaining agreement.


Syed v. M-I, LLC (9th Cir. 14-17186 1/20/17) Fair Credit Reporting Act/Liability Waiver by Employer


The panel reversed the district court’s dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6) of an action under the Fair Credit Reporting Act.


The panel held that a prospective employer violates 15 U.S.C. § 1681b(b)(2)(A) when it procures a job applicant’s consumer report after including a liability waiver in the same document as a statutorily mandated disclosure. The panel also held that, in light of the clear statutory language that the disclosure document consist “solely” of the disclosure, a prospective employer’s violation of § 1681b(b)(2)(A) is “willful” when the employer includes terms in addition to the disclosure, such as the liability waiver here, before procuring a consumer report or causing one to be procured.


Labertew v. Langemeier (9th Cir. 14-15879 1/20/17) Garnishment of Wages/Removal


The panel vacated the district court’s judgment discharging insurers, and remanded for further proceedings in a garnishment proceeding arising out of an insurance settlement and assignment [of an employment dispute].


In the underlying settlement, the plaintiffs and defendant stipulated to a judgment against the defendant for $1.5 million, and defendant assigned to the plaintiffs her rights against her liability insurers. Plaintiffs applied in state court for writs of garnishment against the insurers. The insurers removed the state garnishment proceedings to federal district court.


The district court, pursuant to Fed. R. Civ. P. 69, applied Arizona garnishment law, and held that because the plaintiffs missed their ten day window for objecting, the garnishment failed and the garnishees/insurers were discharged.


The panel held that the garnishment proceeding was removable, and the district court had jurisdiction. The panel held that under Swanson v. Liberty National Insurance Co., 353 F.2d 12 (9th Cir. 1965), the garnishment proceeding against the insurers, for purposes of removal, was a separate and independent civil action from the suit by the plaintiffs in the underlying action; and as such, it was removable.


The panel held that there was no federal judgment in this case upon which to execute. The panel noted that the only judgment was in the Superior Court of the State of Arizona. The panel further held that the necessary predicate for application of Fed. R. Civ. P. 69 was a judgment in the federal district court in which execution was sought. The panel also held that there was no state judgment against the insurance companies that could be registered and enforced in federal court.


The panel held that the district court had discretion under Fed. R. Civ. P. 81(c)(2) to order repleading. The panel held that the Arizona laws for garnishment proceedings, were, upon removal, supplanted by the federal rules. The panel also held that the district court may order repleading because this case was in substance a claim by the insureds’ assignee against the insurers for breaching their obligations under their insurance policies, and the claims in the state court pleadings were no longer at issue.


Bareno v. San Diego Community College Dist. (CA4/1 D069381 1/13/17) California Family Rights Act


Plaintiff Leticia Bareno appeals from a judgment entered in favor of defendants San Diego Miramar College (the College), San Diego Community College District, and San Diego Community College District Administrative Facilities Corporation.


In early 2013, Bareno was disciplined by her employer, the College, in relation to her employment as an administrative assistant.  Thereafter, Bareno required medical treatment and accompanying leave from work, and she requested medical leave from her supervisor.  Bareno provided medical certification for this request for leave.  After the time frame specified in Bareno's initial request for leave had ended, Bareno continued to be absent from work.  Bareno had attempted to e-mail her supervisor a recertification of her need for additional medical leave, but the College claimed that Bareno's supervisor did not receive any such request from Bareno for additional leave.  As a result, after Bareno continued to be absent from work for an additional five consecutive days, the College took the position that she had "voluntarily resigned."  After Bareno learned that the College considered her to have voluntarily resigned as a result of her continued absence from work, Bareno attempted to provide the College with information regarding the medical necessity of the leave that she had taken.  The College refused to reconsider its position.


Bareno filed suit against all three defendants, alleging that in effectively terminating her employment, SDCCD retaliated against her for taking medical leave, in violation of Government Code section 12945.2, the Moore-Brown-Roberti Family Rights Act, commonly referred to as the California Family Rights Act (CFRA).  (See Cal. Code Regs., tit. 2, § 11087, subd. (b).)   SDCCD moved for summary judgment on Bareno's sole claim for retaliation under CFRA, and the trial court granted the motion.


On appeal, Bareno contends that the trial court erred in granting summary judgment on her CFRA retaliation claim because there remain triable issues of material fact in dispute.  We agree.  Because there remain material issues in dispute and the record is capable of supporting a judgment in favor of Bareno, the trial court erred in granting summary judgment in favor of SDCCD.  We therefore reverse the judgment and remand the matter for further proceedings.

United States ex rel. Kelly v. Serco (9th Cir. 14-56769 1/12/17) False Claims Act/Qui Tam


The panel affirmed the district court’s summary judgment in favor of the defendant in an action under the False Claims Act.


The plaintiff alleged that his former employer Serco, Inc., a technology and project management services provider, submitted fraudulent claims for payment to the United States for work done under a government contract. The Department of Defense, Navy Space and Naval Warfare Systems Command (SPAWAR), contracted with Serco for work on the Advanced Wireless Systems Spectrum Relocation Project, a project to upgrade the wireless communications systems situated along the United States-Mexico border for the Department of Homeland Security, Customs and Border Protection (DHS). The interagency contract between SPAWAR and DHS required SPAWAR to implement a cost and progress tracking system known as an earned value management (EVM) system. The services provided by Serco were covered under its Naval Electronic Surveillance Systems contract with SPAWAR.


The panel affirmed the district court’s summary judgment on a claim that Serco submitted false or fraudulent claims for payment under an implied false certification theory of liability under the False Claims Act. The panel applied Universal Health Servs., Inc. v. United States ex rel. Escobar, 136 S. Ct. 1989 (2016), which held that a government contract need not expressly designate a requirement as a condition of payment in order to trigger liability under the theory of implied certification. Instead, what matters is whether the defendant knowingly violated a requirement that it knew was material to the government’s payment decision. To establish liability, the defendant’s claim for payment must make specific representations about the goods or services provided, and the defendant’s failure to disclose material statutory, regulatory, or contractual requirements must make those representations misleading half-truths. The panel held that the plaintiff did not satisfy the standard for materiality set forth in Escobar because there was no genuine issue of material fact as to the materiality of Serco’s compliance with the American National Standards Institute/Electronic Industries Alliance Standard 748 (ANSI-748) or its obligation to provide valid EVM reports.


The panel also affirmed the district court’s summary judgment on claims that Serco violated the False Claims Act by making false records material to a false or fraudulent claim, conspired to violate the False Claims Act, wrongfully retained overpayments, and wrongfully terminated the plaintiff in violation of public policy under California state law.


Navarro v. Encino Motorcars (9th Cir. 13-55323 dec. on rem. 1/9/17) Fair Labor Standards Act/Car Dealership Service Advisors Not Exempt


On remand from the Supreme Court, the panel affirmed in part and reversed in part the district court’s dismissal of an action brought under the Fair Labor Standards Act against an automobile dealership.


Reversing the dismissal of a federal claim for overtime compensation, and disagreeing with the Fourth and Fifth Circuits, the panel held that service advisors do not fall within an exemption from the FLSA’s overtime-compensation requirement for “any salesman, partsman, or mechanic primarily engaged in . . . servicing automobiles.” Assuming without deciding that it must give no weight to the Secretary

of Labor’s interpretation, the panel interpreted 29 U.S.C. § 213(b)(10)(A) in the first instance.


For the reasons given in an earlier opinion, the panel affirmed the dismissal of plaintiffs’ other federal claims and reversed the dismissal of state-law claims. The panel remanded the case to the district court.


Silva v. See's Candy Shops (CA4/1 D068136, filed 12/9/16, pub. ord. 1/5/16) PAGA/Rounding/Grace Periods


Pamela Silva filed an action against her former employer, See's Candy Shops, Inc., alleging wage and hour violations.  Silva brought the action in her individual capacity, on behalf of a class of See's Candy employees, and on behalf of aggrieved workers under the Private Attorney General Act of 2004 (PAGA).  The court certified a class on Silva's claims challenging two of See's Candy's policies pertaining to the calculation of employee work time: (1) a rounding policy, which calculates timeclock punches to the nearest tenth of an hour; and (2) a grace-period policy, which permits employees to clock in 10 minutes before and after a shift, but calculates work time from the employee's scheduled start/end times.


In a prior appeal, we granted See's Candy's writ petition challenging the trial court's dismissal of See's Candy's affirmative defense that its rounding policy was lawful.  (See's Candy Shops, Inc. v. Superior Court (2012) 210 Cal.App.4th 889 (See's Candy).)  After remand, See's Candy successfully moved for summary adjudication on Silva's PAGA cause of action.  In a later proceeding, the court granted summary judgment in See's Candy's favor on all of Silva's remaining claims. 


In this appeal, Silva challenges the summary adjudication order on her PAGA claim and the summary judgment on all remaining causes of action.  She raises numerous contentions.  We determine the court erred in granting summary judgment with respect to certain of Silva's individual claims, but the court properly entered judgment in See's Candy's favor on all remaining claims, including the PAGA cause of action and the class-certified claims.


Hernandez v. Ross Stores (CA4/2 E064026, filed 12/7/16, pub. ord. 1/3/16) Arbitration/PAGA


Defendant and appellant Ross Stores, Inc. (Ross) appeals the denial of its motion to compel arbitration.  Plaintiff and respondent Martina Hernandez was employed at a Ross warehouse in Moreno Valley.  She filed a single-count representative action under the California Private Attorney General Act, Labor Code section 2698 et. seq. (PAGA) alleging Ross had violated numerous Labor Code laws, and sought to recover PAGA civil penalties for the violations. 


Ross insisted that Hernandez must first arbitrate her individual disputes showing she was an “aggrieved party” under PAGA and then the PAGA action could proceed in court.  The trial court found, relying on Iskanian v. CLS Transportation Los Angeles LLC (2014) 59 Cal.4th 348, 387 (Iskanian) that the PAGA claim was a representative action brought on behalf of the state and did not include individual claims.  As such, it denied the motion to compel arbitration because there were no individual claims or disputes between Ross and Hernandez that could be separately arbitrated.


On appeal, Ross raises the issue of whether under the Federal Arbitration Act (FAA) an employer and employee have the preemptive right to agree to individually arbitrate discreet disputes underlying a PAGA claim while leaving the PAGA claim and PAGA remedies to be collectively litigated under Iskanian.  We uphold the trial court’s denial of the motion to compel arbitration.


Briseno v. Conagra Foods (9th Cir. 15-55727 1/3/17) No administrative feasibility requirement for identifying Rule 23 class members (consumer case applicable to employment)


The panel affirmed the district court’s class certification in putative class actions brought against ConAgra Foods in eleven states by consumers who purchased Wesson-brand cooking oil products labeled “100% Natural” during the relevant period.


Plaintiffs argued that the “100% Natural” label was false or misleading because Wesson oils are made from bioengineered ingredients that plaintiffs contend are “not natural.” ConAgra manufactures, markets, distributes, and sells Wesson products. Defendant urged reversal of the district court’s class certification because the district court did not require Plaintiff-Appellee Robert Briseno and the other named class representatives to proffer an administratively feasible way to identify members of the certified classes.


The panel held that the language of Federal Rule of Civil Procedure 23 neither provides nor implies that demonstrating an administratively feasible way to identify class members is a prerequisite to class certification. The panel therefore joined the Sixth, Seventh, and Eighth Circuits in declining to adopt an administrative feasibility requirement.


Chan Healthcare v. Liberty Mutual (9th Cir. 16-35210,16-80019 1/3/17) CAFA interlocutory review (insurance case applicable to employment)


The panel (1) dismissed a petition for permission to appeal the district court’s remand order in a class action case founded on federal question jurisdiction and (2) vacated the district court’s order granting attorneys’ fees.


Joining the Fifth, Sixth, and Eighth Circuits, the panel held that the interlocutory review provision set forth in the Class Action Fairness Act, 28 U.S.C. § 1453(c)(1), is limited to orders granting or denying remand of diversity class actions brought and removed under CAFA. Therefore, under 28 U.S.C. § 1447(d), the panel lacked jurisdiction to review the district court’s order remanding the case to the state court from which it had been removed.


Cal Fire Local 2881 v. CalPERS (CA1/3 A142793 12/30/16) Public Pensions/Airtime Service Credit


This is an appeal from the trial court’s denial of a petition for writ of mandate and injunctive relief filed by plaintiff Cal Fire Local 2881 on behalf of itself and its members.  Plaintiffs, professional firefighters employed by the State of California and the union representing them, sought this relief against defendant California Public Employees’ Retirement System (CalPERS) to compel it to continue to enforce Government Code section 20909, a state law enacted by the Legislature in December of 2003 to provide eligible public employees the option to purchase at cost up to five years of nonqualifying service credit (sometimes referred to as “airtime”).  


This airtime service credit, when purchased, provided an increase in the pension benefits paid to state employees during their retirement, as it enabled the purchasers to increase the amount of service credit factored into their pensions.  However, in 2012, the Legislature eliminated this option as of January 1, 2013 upon enacting the Public Employees’ Pension Reform Act of 2013 (PEPRA), a comprehensive reform measure designed to, among other things, strengthen the state’s public pension system and ensure its ongoing solvency.  (See § 7522.46, § 20909, subd. (g).) 


According to plaintiffs, the Legislature’s elimination of the option provided under section 20909 to purchase airtime service credit is a violation of the contracts clause of the California Constitution (Cal. Const., art. I, § 9) and, as such, CalPERS lacks authority to refuse to consider applications for this service credit.  For reasons set forth below, we reject plaintiffs’ position and affirm the trial court’s judgment.


City of LA v. City of LA Employee Relations Bd. (CA2/3 B261246 12/30/16) City’s Employee Relations Board Not Reviewable by Writ


The City of Los Angeles (City), acting by and through its Department of Water and Power (DWP), appeals the judgment of dismissal entered after the superior court sustained the demurrer of real party in interest Department of Water and Power Management Employees Association (MEA) to the DWP’s petition for writ of mandate. The sole issue before us is whether Government Code section 3509.5 controls review of a decision of the City’s Employee Relations Board (ERB), or whether the ERB’s decisions are reviewable on a writ petition brought in the superior court.  We conclude section 3509.5 does not apply to ERB decisions, and therefore reverse the superior court’s order and remand for further proceedings.   


Flores v. Nature's Best Distribution (CA4/3 G052410A, filed12/2/16, pub. ord. 12/27/16, reposted by court for correct format 12/28/16) Arbitration


Plaintiff Julie Flores filed a lawsuit against Nature’s Best Distribution, LLC, Nature’s Best, KeHe Distributors, Inc., and KeHe Distributors, LLC (collectively referred to as defendants), alleging several claims under the California Fair Employment and Housing Act (Gov. Code, § 12940 et seq.).  Defendants filed a petition to compel arbitration based on evidence that plaintiff signed an agreement for alternative dispute resolution (the Agreement).  The trial court denied the petition.  Defendants contend the trial court erroneously concluded defendants failed to prove plaintiff agreed to arbitrate her claims and that the arbitration provision contained in the Agreement was unenforceable because it is unconscionable.


We affirm.  Defendants failed to prove plaintiff agreed to submit her claims to final and binding arbitration


Flores v. Nature's Best Distribution (CA4/3 G052410, filed12/2/16, pub. ord. 12/27/16) Arbitration


Plaintiff Julie Flores filed a lawsuit against Nature’s Best Distribution, LLC, Nature’s Best, KeHe Distributors, Inc., and KeHe Distributors, LLC (collectively referred to as defendants), alleging several claims under the California Fair Employment and Housing Act (Gov. Code, § 12940 et seq.).  Defendants filed a petition to compel arbitration based on evidence that plaintiff signed an agreement for alternative dispute resolution (the Agreement).  The trial court denied the petition.  Defendants contend the trial court erroneously concluded defendants failed to prove plaintiff agreed to arbitrate her claims and that the arbitration provision contained in the Agreement was unenforceable because it is unconscionable.


We affirm.  Defendants failed to prove plaintiff agreed to submit her claims to final and binding arbitration


Augustus v. ABM Security Services (SC S224853 12/22/16) Off –Duty and On Call Rest Periods


We granted review to address two related issues:  whether employers are required to permit their employees to take off-duty rest periods under Labor Code section 226.7 and Industrial Welfare Commission (IWC) wage order No. 4-2001 (Cal. Code Regs., tit. 8, § 11040 (Wage Order 4)), and whether employers may require their employees to remain “on call” during rest periods.  What we conclude is that state law prohibits on-duty and on-call rest periods.  During required rest periods, employers must relieve their employees of all duties and relinquish any control over how employees spend their break time.  (See Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1038-1039 (Brinker).) 


Plaintiffs worked as security guards for defendant ABM Security Services, Inc. (ABM).  A requirement of employment at ABM was for guards to keep their pagers and radio phones on –– even during rest periods –– and to remain vigilant and responsive to calls when needs arose.  ABM’s understanding about the scope of such needs, meanwhile, encompassed a variety of circumstances, including situations where a building tenant wished to be escorted to the parking lot, a building manager had to be notified of a mechanical problem, or the occurrence of some kind of “emergency situation.”  Plaintiffs sued ABM, alleging the company failed to provide the rest periods that state law entitles employees to receive.  The trial court granted summary judgment for plaintiffs, finding ABM liable and awarding approximately $90 million –– but the Court of Appeal reversed.  Because state law requires employers to provide their employees with rest periods that are free from duties or employer control, we reverse the Court of Appeal.


Mohamed v. Uber Technologies Inc. (9th Cir. 15-16178 12/21/16) Arbitration/PAGA


The panel affirmed in part and reversed in part the district court’s orders denying Uber Technologies, Inc.’s motion to compel arbitration in actions brought by two former Uber drivers, Abdul Mohamed and Ronald Gillette, on behalf of themselves and a proposed class of drivers, and remanded for further proceedings.


The district court denied Uber’s motion to compel arbitration of the plaintiffs’ claims.


The panel held that the district court erred in assuming the authority to decide whether the parties’ arbitration agreements were enforceable. The panel further held that the question of arbitrability as to all but Gillette’s California Private Attorney General Act (“PAGA”) claim was delegated to the arbitrator. The panel also held that under the terms of the agreement Gillette signed, the PAGA waiver should be severed from the arbitration agreement and Gillette’s PAGA claim may proceed in court on a representative basis. The panel also held that all of plaintiffs’ remaining arguments, including both Mohamed’s challenge to the PAGA waiver in the agreement he signed and the challenge by both plaintiffs to the validity of the arbitration agreement itself, were subject to resolution via arbitration.


The panel affirmed the district court’s order denying the motion to compel arbitration filed by Hirease, LLC, an independent background-check company that Mohamed named in his complaint alongside Uber. The panel held that Hirease was not entitled to compel arbitration as Uber’s agent.


San Joaquin County Correctional etc. v. County of San Joaquin (CA3 C079413 12/20/16) Public Pensions and COLA


Plaintiff San Joaquin County Correctional Officers Association (CCOA) appeals from a judgment in favor of the County of San Joaquin (County) in this dispute over pensions payments, specifically, cost-of-living adjustments (COLAs), for CCOA members.  The case involves the interplay between the California Public Employees’ Pension Reform Act of 2013 (PEPRA) (Gov. Code, § 7522, et seq.)  and the County Employees Retirement Law of 1937 (CERL) (§ 31450, et seq.).


Under CERL, the County had the right to reduce any contributions it chose to make toward what would otherwise have been the employee’s half-share of COLA payments.  Under PEPRA, limits on any such government contributions take effect after 2018. 


After the County reduced the COLA contributions it had been making, CCOA contended, in effect, that PEPRA shielded its members from any such reductions until 2018.  We agree with the trial court that this is an incorrect interpretation of the law.  PEPRA was intended to rein in what was perceived by the Legislature to be overly generous retirement packages for public employees, but delayed the effective date of some provisions to ease the transition and allow some changes to be negotiated gradually.  It was not designed to shield compensation packages that were already subject to reduction under prior laws, specifically, CERL.  Accordingly, we shall affirm.


Fowler Packing Co v. Lanier (9th Cir. 16-16236 12/20/16) Equal Protection/Carve-Out to Piece Rate Compensation


The panel provided reasoning for its order filed on December 9, 2016, which affirmed in part and reversed in part the district court’s dismissal of a complaint against California officials alleging that certain “carve-out” provisions in California Assembly Bill (AB) 1513 violatedthe Equal Protection Clause and the Bill of Attainder Clause.


California passed Assembly Bill 1513 in response to state appellate court decisions that exposed employers to significant and unexpected minimum wage liability. This law created a “safe harbor” that gave employers an affirmative defense against the new claims so long as the employer made back payments under certain conditions. The legislation, however, also included specific “carve-outs” that were crafted such that three or four employers, including plaintiffs, would be precluded from using the safe harbor in then-pending litigation against them.


The panel held that accepting plaintiffs’ allegations as true, the only conceivable explanation for AB 1513’s carve-outs was that they were necessary to procure the United Farm Workers’ support in passing the legislation. The panel held that because this justification would not survive even rational basis scrutiny, plaintiffs’ complaint plausibly stated a claim that the cut-out provisions violated the Equal Protection Clause. The panel remanded the case to the district court for further proceedings with respect to the equal protection claim.


The panel further held that AB 1513’s carve-outs did not impose punishment upon plaintiffs. Because punishment is a necessary element of a bill of attainder, the district court properly dismissed this claim.


Armin v. Riverside Community Hospital (CA4/3 G052125, filed 11/17/16, mod. 12/19/16) Hospital Peer Review & Whistleblower Statute


On November 18, 2016, the Fenton Law Group moved to modify the caption of our opinion filed November 16, 2016, to delete the reference to the law firm of Fenton Nelson, on the ground that when appellant Sean Armin’s opening brief was filed, Fenton Nelson “had either already been dissolved, or was in the process of being dissolved.”  We are unable to grant this request because the California Style Manual states, in section 5:15, that if a law firm has appeared for a client on appeal, it should be listed in the caption.  In the present case, Appellant’s opening brief, filed March 19, 2014, was filed by Fenton Nelson, LLP.

On December 1, 2016, defendants Riverside Community Hospital and defendant and Medical Staff of Riverside Community Hospital (the Hospital) filed a petition for rehearing.  However, on December 12, 2016, the attorneys for the various parties in the case, including the Hospital, Armin and the individual doctors, filed a notice of settlement.  And on that same day, attorneys for the Hospital also filed a withdrawal of the request for rehearing.  The Hospital’s withdrawal request, however, states that the Hospital does not withdraw its “request made in the Petition for Rehearing that the identified sections of the Opinion be decertified for publication, or ordered depublished, for reasons stated in the Petition for Rehearing.”  


In its now withdrawn petition for rehearing the Hospital identifies an error on page 3 of the slip opinion, namely “FEHA” as the opinion now reads, should instead be “Unruh Civil Rights Act.”  Independent of the withdrawal of the petition, we hereby modify the slip opinion on page 3, second full paragraph, first sentence, to substitute the words “Unruh Civil Rights Act” for “FEHA.”


That leaves the question of the Hospital’s existing requests for decertification of “identified sections” of the opinion.  The problem here is that the Hospital does not – at least not with precision – identify those parts of the slip opinion that might readily be excluded from an otherwise published opinion without directly affecting the judgment that Armin’s Health and Safety Code section 1278.5 (section 1278.5) action against the Hospital might proceed as against the anti-SLAPP motion filed by the Hospital.  The one part most easily separated from the balance of the opinion, part III.B., involving Armin’s section 1278.5 claims against individual physicians and holding those individual physicians are immune from Armin’s section 1278.5 claims, is not challenged in the December 1, 2016 petition for rehearing. 

Functionally, then, it appears that the Hospital wants to maintain its petition for rehearing and withdraw it too.  Most of the petition for rehearing consists not of a challenge to the main holding of the opinion – that administrative exhaustion of peer review proceedings is not a prerequisite to a section 1278.5 action – but rather consists of arguments that are fact-specific and peculiar to this now-settled action.  Because these arguments are record-specific, we must conclude that by withdrawing its request for rehearing, these arguments are being waived.


However, the Hospital’s petition has pointed out another area in which the opinion might be improved.  In light of the Hospital’s (now withdrawn) petition for rehearing, we hereby modify the opinion in the following particular:


On page 22 of the slip opinion, in the first paragraph of section 4, after the sentence ending with the words “whistleblowing claim is based on his December 2011 conversation with the hospital’s COO in which he complained about Douglas and Clark’s lackadaisical approach to urgent care” insert the following new footnote (and renumber the remaining footnotes accordingly):


“Under subdivision (i) of section 1278.5, a ‘health care facility’ – and that includes the Hospital here – is defined to include both ‘the facility’s administrative personnel’ such as the hospital’s COO here, and its ‘medical staff.’”  This modification does not affect the judgment.


Tibble v. Edison International (9th Cir. 10-56406 12/16/16) ERISA


On remand from the Supreme Court, the en banc court vacated the district court’s judgment in favor of an employer and its benefits plan administrator on claims of breach of fiduciary duty in the selection and retention of certain mutual funds for a benefit plan governed by ERISA.


The court of appeals had previously affirmed the district court’s holding that the plan beneficiaries’ claims regarding the selection of mutual funds in 1999 were time-barred under the six-year limit of 29 U.S.C. § 1113(1). The Supreme Court vacated the court of appeals’ decision, observing that federal law imposes on fiduciaries an ongoing duty to monitor investments even absent a change in circumstances.


Rejecting defendants’ contention that the beneficiaries waived the ongoing-duty-to-monitor argument, the en banc court held that the beneficiaries did not forfeit the argument either in the district court or on appeal. Rather, defendants themselves failed to raise the waiver argument in their initial appeal, and thus forfeited this argument.


The en banc court distinguished Phillips v. Alaska Hotel & Rest. Emps. Pension Fund, 944 F.2d 509 (9th Cir. 1991), which held that when a fiduciary violated a continuing duty over time, the three-year limitations period set forth in 29U.S.C. § 1113(2) began when the plaintiff had actual knowledge of a breach in a series of discrete but related breaches. The panel held that Phillips did not apply to the continuing duty claims at issue under § 1113(1). Thus, only a “breach or violation,” such as a fiduciary’s failure to conduct its regular review of plan investments, need occur within the six-year statutory period of § 1113(1); the initial investment need not be made within the statutory period.


Looking to the law of trusts to determine the scope of defendants’ fiduciary duty to monitor investments, the en banc court held that the duty of prudence required defendants to reevaluate investments periodically and to take into account their power to obtain favorable investment products, particularly when those products were substantially identical—other than their lower cost—to products they had already selected.


The en banc court vacated the district court’s decisions concerning the funds added to the ERISA plan before 2001 and remanded on an open record for trial on the claim that, regardless of whether there was a significant change in circumstances, defendants should have switched from retail class fund shares to institutional-class fund shares to fulfill their continuing duty to monitor the appropriateness of the trust investments. The en banc court also directed the district court to reevaluate its award of costs and attorneys’ fees in light of the Supreme Court’s decision and the en banc court’s decision.


Wilson v. Cable News Network Inc. (CA2/1 B264944 12/13/16) Anti-SLAPP


The trial court granted defendants’ anti-SLAPP motion (Code Civ. Proc., § 425.16) against a former employee alleging discrimination, retaliation, wrongful termination, and defamation.  Plaintiff contends the defendants’ conduct and statement did not arise from an act in furtherance of their right of free speech or to petition for redress of grievances, and were not in connection with an issue of public interest, and therefore fell outside the scope of the anti-SLAPP statute.  We agree and reverse.  This is a private employment discrimination and retaliation case, not an action designed to prevent defendants from exercising their First Amendment rights.  Defendants may have a legitimate defense but the merits of that defense should be resolved through the normal litigation process, with the benefit of discovery, and not at the initial phase of this action.


Ryan v. Crown Castle NG Networks (CA6 H041712 12/13/16) Breach of Employment Contract Verdict/New Trial


Plaintiff Patrick S. Ryan brought this action against his former employer, NextG Networks, Inc., and its successor Crown Castle NG Networks Inc. (collectively NextG).  He alleged in essence that NextG had breached a promise to grant him lucrative stock options as a condition of his employment.  The case went to the jury with an unclear special verdict form and unhelpful instructions.  The jury sustained two contract-based causes of action, but failed to find the value of the promised options, despite a directive on the verdict form that it do so.  Instead it made a finding of the income plaintiff lost by entering the employment relationship, despite a directive obviating such a finding in light of the jury’s rejection of plaintiff’s tort causes of action.  Plaintiff moved for a new trial on the ground of inadequate damages.  The trial court denied the motion while disclaiming the power to “substitute its judgment for that of the jury” and suggesting that declarations were necessary to determine “what the jury actually did.”  We will reverse with instructions to grant a new trial.  The court was fully empowered and indeed obligated to make an independent assessment of the adequacy of the verdict.  Moreover, the verdict was unmistakably unsound.  If viewed as an award of tort damages, it had no foundation in law.  If viewed as an award of contract damages, it had no foundation in fact.  It is in all likelihood the product of juror confusion, improper compromise, or some combination of the two.  Either way the findings of liability are sufficiently suspect that a retrial cannot fairly be limited to damages.  Accordingly, we will direct that the court conduct a new trial on all issues unless plaintiff elects to stand on the previous judgment.


Riske v. Super. Ct. (CA2/7 B270043 12/12/16) Pitchess Motion


Robert Riske, a retired Los Angeles police officer, sued the City of Los Angeles alleging the Los Angeles Police Department had retaliated against him for protected whistleblower activity by failing to assign or promote him to several positions, selecting instead less qualified candidates.  Riske filed a discovery motion pursuant to Evidence Code sections 1043 and 1045, which establish procedures for the disclosure of confidential personnel records of peace officers, to obtain certain records of the officers selected for the positions to which he had applied.  Riske asserted the documents he sought were necessary to show the City’s stated business reason for its promotion decisions—the successful candidates were more qualified than Riske—was pretext for retaliation.  The City opposed the motion, claiming the officers’ personnel records were not subject to discovery because the officers were innocent third parties who had not witnessed or caused Riske’s injury.  The superior court agreed and denied Riske’s motion. 


We grant Riske’s petition for a writ of mandate and direct the superior court to vacate its order denying Riske’s discovery motion and to enter a new order requiring the City to produce the reports sought by Riske for an in camera inspection pursuant to Evidence Code section 1045 and to thereafter order production of all discoverable information.  The statutory scheme governing the discovery of peace officer personnel records is not limited to cases involving officers who either witnessed or committed misconduct.  If a plaintiff can demonstrate the officer’s personnel records are material to the subject matter of the litigation, the records must be produced by the custodian of records and reviewed by the court at an in camera hearing in accordance with the statutory procedures to assess the discoverability of the information contained in them.  The court must then order production of those records that are relevant and not otherwise protected from disclosure.


Driscoll v. Granite Rock (CA6 H037662 11/30/16) Off-Duty Meal Periods


Graniterock is a concrete company that manufactures, delivers and pours concrete. Its customers include home owners, private construction contractors, and contractors on large public works projects, such as schools, airport runways, and roads.


Concrete is delivered by Graniterock’s concrete mixer drivers, who assist in loading the concrete into the mixer trucks, delivering the concrete to customers, and pouring the concrete at a construction site.


Graniterock concrete drivers Brian Driscoll, Kenneth Gallardo, Donald Hopf, Chris Nowak and Brad Storm filed this action on January 17, 2008 on behalf of a class of approximately 200 current and former concrete mixer drivers.  Plaintiffs claim that Graniterock failed to provide concrete mixer drivers with off-duty meal periods and failed to provide them with one additional hour of pay for meal periods during which the drivers opted to continue working.


Plaintiffs sought restitution under Business and Professions Code section 17200, penalties under the Private Attorney General Act (ibid.) and damages and penalties under Labor Code sections 226.7 and 512, subdivision (a).  Plaintiffs’ principal claim is that Graniterock failed to provide off-duty meal periods and/or failed to pay plaintiffs one additional hour of pay for duty-free meal periods.  


The trial court granted class certification of approximately 200 concrete drivers employed by Graniterock on or after January 7, 2004.  The court designated two subclasses, the first being defined as “All ready-mix concrete drivers employed by Granite Rock Company on or after January 17, 2004, who signed a Graniterock form entitled ‘On Duty’ Meal Period Agreement.”  The second subclass was defined as “All ready-mix concrete drivers employed [sic] Granite Rock Company on or after January 17, 2004, who either never signed a Granite Rock form entitled ‘On Duty’ Meal Period Agreement or who later provided a written notice purporting to revoke the Agreement.”


The class action was tried without a jury, and the court returned a verdict in favor of Graniterock.  The court found that Graniterock did not violate labor laws in its meal period policies.


City of Palo Alto v. Public Employment Relations Bd. (CA6 H041407 11/23/16) PERB/Separation of Powers


Since 1978, article V of the City of Palo Alto’s (hereafter, City) charter provided that impasses in negotiations regarding wages, hours, and other terms and conditions of employment for the City’s police and firefighters would be submitted to binding interest arbitration.  In 2011, the Palo Alto City Council (City Council) voted to place on the ballot for the upcoming election a measure that repealed this binding interest arbitration provision.  Real party in interest the International Association of Firefighters, Local 1319, AFL-CIO (IAFF) filed an unfair practice charge with the Public Employment Relations Board (PERB), alleging the City placed the measure before voters without consulting in good faith with the IAFF, as required by the Meyers-Milias Brown Act (MMBA) (Gov. Code, § 3500 et seq.).   A PERB administrative law judge (ALJ) found in the City’s favor.  This decision was later reversed by PERB.  By that time, the measure repealing the binding interest arbitration provision had already been passed by the voters.  As part of its remedy, PERB ordered the City to rescind its resolution from 2011 referring the measure to the voters. 


Pursuant to section 3509.5, the City requested this court issue a writ of extraordinary relief annulling PERB’s decision and directing PERB to dismiss the unfair practice charge.  We granted a writ of review.  As we explain below, we find PERB’s conclusion that IAFF sufficiently requested to meet and consult with the City is supported by substantial evidence and determine the constitutional issues raised by the City are meritless.  Nonetheless, PERB’s order directing the City Council to rescind its resolution violated the doctrine of separation of powers by ordering a legislative body to take legislative action.  We therefore annul PERB’s decision and remand the matter back to PERB with directions to strike this remedy.


Marin Assoc. of Public Employees v. Marin County Employees’ Retirement Assoc. (SC S237460/ A139610 review granted 11/22/16) Pension Benefits


The petition for review is granted. Further action in this matter is deferred pending the decision of the Court of Appeal, First Appellate District, Division Four, in Alameda County Deputy Sheriff's Association et al. v. Alameda County Employees' Retirement Association et al., A141913 (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. Votes: Cantil-Sakauye, C.J., Werdegar, Chin, Corrigan, Liu, Cuéllar and Kruger, JJ.  Review granted/holding for lead case.




Court of Appeal Decision


Lubin v. Wackenhut Corp. (CA2/4 B244383 11/21/16) Class Certification/Off Duty Meal & Rest Breaks


Appellants Nivida Lubin, Sylvia M. Maresca, and Kevin Denton (together plaintiffs) filed this action on behalf of themselves and similarly situated persons, alleging defendant and respondent The Wackenhut Corporation (Wackenhut) violated California labor laws by failing to provide employees with off-duty meal and rest breaks and by providing inadequate wage statements.  The trial court initially granted plaintiffs’ motion for class certification.  However, as the case approached trial, the United States Supreme Court reversed a grant of class certification in Wal-Mart Stores, Inc. v. Dukes (2011) 564 U.S. 338 (Wal-Mart).  Relying on Wal-Mart, Wackenhut moved for decertification.  The trial court granted the motion.  Plaintiffs appeal, contending that decertification was not warranted by a change in circumstances or case law and that the court used improper criteria in granting the motion for decertification.  We conclude that the trial court erred in granting the motion.


Khosh v. Staples Construction (CA2/6 B268937M, filed 10/26/16, mod. 11/17/16) Privette doctrine/Nondelegable Duty Exception


It is ordered that the opinion filed herein on October 26, 2016, and certified for publication, be modified as follows: At the end of the last paragraph on page 11, delete the last sentence that reads: “A judgment may not be reversed due to the erroneous exclusion of evidence unless the court finds that the error resulted in a miscarriage of justice. (Evid. Code, § 354.)” There is no change in the judgment.


Armin v. Riverside Community Hospital (CA4/3 G052125 11/17/16) Hospital Peer Review & Whistleblower Statute


We embark here upon an admittedly lengthy voyage – slow going because we must proceed carefully in largely uncharted waters.  The appeal requires us to decide two questions of first impression regarding the interaction between (a) hospital peer review proceedings against doctors governed by sections 805 to 809.7 of the Business and Professions Code, and (b) the hospital whistleblower statute, Health and Safety Code section 1278.5.   The first question is one left open by our Supreme Court’s decision in Fahlen v. Sutter Central Valley Hospitals (2014) 58 Cal.4th 655 (Fahlen).  Fahlen squarely held that a physician could prosecute a section 1278.5 action without first having to prevail in an administrative mandate proceeding attacking a peer review determination, but the court did not go so far as to excuse the physician from completing the internal peer review process before filing a section 1278.5 action.  The case before us now presents that very question:  Is completion of peer review a prerequisite of a section 1278.5 action?  Based on the analysis in Fahlen and the text and legislative history of section 1278.5, we hold that a physician need not complete the internal peer review process prior to filing a section 1278.5 action.


The second question is whether a physician bringing a section 1278.5 action may name as defendants individual physicians involved in the peer review process who allegedly instigated the process in retaliation for the physician’s whistleblowing.  Based on the text of section 1278.5 and its legislative history, we hold that a physician may not name individual physicians in a section 1278.5 complaint.


To complete the opinion, we must also decide an issue involving the tripartite interaction of the anti-SLAPP statute (Code Civ. Proc. § 425.16), the peer review process, and a physician’s religious discrimination claims against a hospital under FEHA.  The issue is whether the fact the physician reiterated complaints of religious discrimination by the hospital in the context of protesting the initiation of peer review proceedings against him so intertwined his discrimination claims with the peer review proceedings as to subject his discrimination claims to an anti-SLAPP motion.  Here, because the physician first voiced his complaints of religious discrimination prior to the initiation of the peer review proceedings, it is clear his discrimination claims are not based on activity protected under the anti-SLAPP statute.  The hospital’s remedy if those religious discrimination claims cannot be supported by substantial evidence – or are otherwise legally infirm – is a summary judgment motion.


Tanguilig v. Bloomingdale's (CA1/5 A145283 11/16/16) PAGA/Arbitration Agreement


Bernadette Tanguilig, an employee at Bloomingdale’s, Inc. (Bloomingdale’s), filed a representative action on behalf of herself and fellow employees pursuant to the Labor Code Private Attorneys General Act of 2004 (PAGA) (Lab. Code, § 2698 et seq.),  alleging several Labor Code violations by the company.  Bloomingdale’s moved to compel arbitration of Tanguilig’s “individual PAGA claim” and stay or dismiss the remainder of the complaint.  The trial court denied the motion.  We affirm.  Under Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348 (Iskanian) and consistent with the Federal Arbitration Act (FAA) (9 U.S.C. et seq.), a PAGA representative claim is nonwaivable by a plaintiff-employee via a predispute arbitration agreement with an employer, and a PAGA claim (whether individual or representative) cannot be ordered to arbitration without the state’s consent.


Thaxton v. State Personnel Bd. (CA4/1 D068563 11/16/16) State Personnel Board Proceeding


Plaintiff and respondent interest Kevyn Thaxton was employed as a corrections officer by appellant, the California Department of Corrections and Rehabilitation (CDCR).  After being dismissed from his position, Thaxton filed an appeal with the State Personnel Board (the SPB), along with three other colleagues who were also dismissed in relation to the same incident that led to Thaxton's dismissal.


The SPB consolidated all four employees' appeals and scheduled a joint evidentiary hearing.  Thaxton did not appear on the first day of the evidentiary hearing, and also failed to appear on the second day, although his attorney was present to represent him on both days.  On the second day of the hearing, CDCR proffered the testimony of a process server to the effect that Thaxton had informed the process server that Thaxton was purposely avoiding service of CDCR's subpoena.  Thaxton's attorney indicated that he would not accept service of the subpoena on Thaxton's behalf.  After Thaxton's attorney refused to accept service of the subpoena, the administrative law judge (ALJ) overseeing the hearing ordered that Thaxton appear that afternoon.  When the hearing resumed, Thaxton's attorney indicated that he had informed Thaxton of the ALJ's order, but Thaxton neither appeared nor provided any justification or explanation for his continued absence from the proceeding.  The ALJ proceeded to dismiss Thaxton's appeal on two independent grounds:  (1) that an SPB regulation requires the personal presence of the parties to an appeal, and provides that the failure of a party to be personally present is deemed a withdrawal of the party's appeal or action; and (2) that the same regulation requires that a party "proceed" with a hearing, and Thaxton's conduct in refusing to appear at the hearing demonstrated failure to proceed with the hearing, such that his appeal could be deemed withdrawn.  The SPB adopted the ALJ's decision.


Thaxton petitioned the trial court for a writ of mandate.  The trial court granted the petition, and effectively ordered that Thaxton be reinstated to his former position at CDCR and receive back pay and interest.


CDCR challenges the trial court's granting of Thaxton's petition.  CDCR argues that the ALJ properly dismissed Thaxton's appeal because Thaxton failed to personally appear at the hearing, which CDCR contends is required by an SPB regulation, and/or because the ALJ acted within the scope of her authority in determining that Thaxton's conduct in failing to appear despite the ALJ's order that he appear constituted a failure to proceed with the hearing.  A party's failure to proceed at a hearing permits an ALJ to deem an appeal or action withdrawn pursuant to both a relevant statute and as well as the SPB regulation relied on by the ALJ.  Thus, CDCR argues, the trial court erred in granting Thaxton's petition for a writ of mandate.  We agree, and reverse the trial court's judgment.


Capital Builders Hardware v. WCAB (CA2/2 B271987 11/16/16) WCAB Order Not Appealable


The applicant and real party in interest, Robert Gaona (Gaona), claimed industrial injury and filed a workers’ compensation claim.  Following the circulation of a medical report, his employer, petitioner Capital Builders Hardware, Inc. (Capital Builders), objected to the admissibility of the report and requested that it be stricken.  The workers’ compensation judge (WCJ) denied Capital Builders’s motions “without prejudice.”  Capital Builders appealed the decision of the WCJ to the Workers’ Compensation Appeals Board (appeals board) by filing a petition for removal and a petition for reconsideration.  The appeals board dismissed and denied those petitions.


Capital Builders now seeks writ review in the Court of Appeal.  At issue is whether the appeals board’s order is reviewable.  We conclude that it is not.  It is well-established that a petition for writ of review may be sought only from a final order or decision of the appeals board.  (Lab. Code, §§ 5900, 5901; Maranian v. Workers’ Comp. Appeals Bd. (2000) 81 Cal.App.4th 1068, 1074 (Maranian).)  Here, the appeals board’s order is not final.  To the extent Alvarez v. Workers’ Comp. Appeals Bd. (2010) 187 Cal.App.4th 575 (Alvarez) suggests that either the WCJ’s order or the appeals board’s order is reviewable by writ of review, we disagree.


Accordingly, we annul the writ of review and remand the case to the appeals board.


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