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Reverse chronological e-mail alerts prepared pro bono for the California Lawyers Association (formerly State Bar of California) Labor & Employment Law Section since 2007, covering California, 9th Circuit and US Supreme Court decisions, and new laws signed by Governor. To subscribe, contact LaborLaw@CLA.Legal.

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Bills Signed by Governor (10/6/21)


  • AB 275 by Assemblymember Jose Medina (D-Riverside) – Classified community college employees

  • AB 615 by Assemblymember Freddie Rodriguez (D-Pomona) – Higher Education Employer-Employee Relations Act: procedures relating to employee termination or discipline

  • AB 779 by Assemblymember Frank Bigelow (R-O’Neals) – Peace officers: deputy sheriffs

  • AB 1015 by Assemblymember Blanca Rubio (D-Baldwin Park) – Board of Registered Nursing: workforce planning: nursing programs: clinical placements


Bill Vetoed by Governor (10/6/21)


  • SB 665 by Senator Thomas Umberg (D-Santa Ana) – Employment policy: voluntary veterans’ preference. A veto message can be found here.

ASJA v. Bonta (9th Cir. 20-55734 10/6/21) ABC Test Exemption/First Amendment/Freelance Writers & Photographers


The panel affirmed the district court’s dismissal of a suit brought by the American Society of Journalists and Authors and the National Press Photographers Association challenging, on First Amendment and Equal Protection grounds, California’s Assembly Bill 5 and its subsequent amendments, which codified the more expansive ABC test previously set forth in Dynamex Operations West, Inc. v. Superior Court of Los Angeles, 416 P.3d 1 (Cal. 2018), for ascertaining whether workers are classified as employees or independent contractors.


The ABC test permits businesses to classify workers as independent contractors only if they meet certain conditions. If a business cannot make that showing, its workers are deemed employees, and the business must comply with specific requirements, and state and federal labor laws. AB5 and its subsequent amendments, now codified at section 2778 of the California Labor Code, provides for certain occupational exemptions. Because freelance writers, photographers and others received a narrower exemption than was offered to certain other professionals, plaintiffs sued, asserting that AB5 effectuates content-based preferences for certain kinds of speech, burdens journalism and burdens the right to film matters of public interest.


The panel held that section 2778 regulates economic activity rather than speech. It does not, on its face, limit what someone can or cannot communicate. Nor does it restrict when, where, or how someone can speak. The statute is aimed at the employment relationship—a traditional sphere of state regulation. The panel further acknowledged that although the ABC classification may indeed impose greater costs on hiring entities, which in turn could mean fewer overall job opportunities for certain workers, such an indirect impact on speech does not necessarily rise to the level of a First Amendment violation. The panel rejected plaintiffs’ assertion that the law singled out the press as an institution and was not generally applicable.


Addressing the Equal Protection challenge, the panel held that the legislature’s occupational distinctions were rationally related to a legitimate state purpose.


Bills Signed by Governor (10/5/21)


  • AB 12 by Assemblymember Kelly Seyarto (R-Murrieta) – Personal information: social security numbers: the Employment Development Department

  • AB 56 by Assemblymember Rudy Salas (D-Bakersfield) – Benefits: outgoing mail: claim processing: reporting

  • AB 110 by Assemblymember Cottie Petrie-Norris (D-Laguna Beach) – Fraudulent claims for unemployment compensation benefits: inmates.

  • AB 286 by Assemblymember Lorena Gonzalez (D-San Diego) – Food delivery: purchase prices and tips

  • AB 313 by Assemblymember Cristina Garcia (D-Bell Gardens) – Civil service: Limited Examination and Appointment Program

  • AB 397 by Assemblymember Chad Mayes (I-Rancho Mirage) – Unemployment insurance: benefits: disqualification: notice

  • AB 579 by Assemblymember Heath Flora (R-Ripon) – Fire prevention: purchases of personal protective equipment: Department of Forestry and Fire Protection

  • AB 654 by Assemblymember Eloise Gómez Reyes (D-Grand Terrace) – COVID-19: exposure: notification

  • SB 294 by Senator Connie Leyva (D-Chino) – Public retirement: leave of absence: service credit

  • SB 390 by Senator John Laird (D-Santa Cruz) – Employment Development Department: recession plan

  • SB 497 by Senator Monique Limόn (D-Santa Barbara) – Qualifying accounts for direct deposit of publicly administered funds

  • SB 753 by Senator Richard D. Roth (D-Riverside) – Unemployment information: California Workforce Development Board: program outcomes

Bills Signed by Governor (10/4/21)


  • AB 450 by Assemblymember Lorena Gonzalez (D-San Diego) – Paramedic Disciplinary Review Board

  • AB 890 by Assemblymember Sabrina Cervantes (D-Riverside) – Public employee retirement systems: investment management: reports

  • AB 1273 by Assemblymember Freddie Rodriguez (D-Pomona) – Interagency Advisory Committee on Apprenticeship: the Director of Consumer Affairs and the State Public Health Officer: earn and learn training

  • SB 598 by Senator Richard Pan (D-Sacramento) – Sacramento Regional Transit District: employee relations

  • SB 721 by Senator Ben Hueso (D-San Diego) – California Farmworker Day


Bills Vetoed by Governor (10/4/21)


  • AB 7 by Assemblymember Freddie Rodriguez (D-Pomona) – Emergency ambulance employees: multithreat body protective gear. A veto message can be found here.

  • SB 494 by Senator Bill Dodd (D-Napa) – Law enforcement: training. A veto message can be found here.

  • SB 549 by Senator Brian W. Jones (R-Santee) – Social workers: essential workers. A veto message can be found here.


Bill Signed by Governor (10/1/21)


  • AB 1407 by Assemblymember Autumn Burke (D-Inglewood) – Nurses: implicit bias courses


Bills Signed by Governor (9/30/21) 2 of 2


  • AB 1561 by the Committee on Labor and Employment – Worker classification: employees and independent contractors

  • SB 586 by Senator Steven Bradford (D-Gardena) – Peace officers: certification


Turrieta v. Lyft, Inc. (CA2/4 B304701 9/30/21)  PAGA Misclassification/Intervention


Appellants Brandon Olson and Million Seifu and respondent Tina Turrieta worked as drivers for a rideshare company, respondent Lyft, Inc.  In 2018, Olson, Seifu, and Turrieta each filed separate representative actions against Lyft under the Private Attorneys General Act of 2004 (PAGA) (Lab. Code, § 2698 et seq.), alleging that Lyft misclassified its California drivers as independent contractors rather than employees, thereby violating multiple provisions of the Labor Code.  Following a mediation in 2019, Turrieta and Lyft reached a settlement.


After Turrieta moved for court approval of the settlement, appellants sought to intervene in the matter and object to the settlement.  Appellants argued that Lyft had engaged in a “reverse auction” by settling with Turrieta for an unreasonably low amount, and that the settlement contained other provisions that were unlawful and inconsistent with PAGA’s purpose.  The trial court rejected appellants’ requests to intervene, finding that appellants lacked standing.  The court found the settlement to be fair and adequate, and approved it.  The court also denied the subsequent motions by appellants to vacate the judgment under Code of Civil Procedure section 663. 


On appeal, appellants contend the trial court erred in approving the settlement, and in denying their motions to intervene and to vacate the judgment.  Respondents argue that, as nonparties, appellants lack standing to seek any relief in this case, and further, that the settlement was proper.  We agree with respondents and the trial court that appellants’ status as PAGA plaintiffs in separate actions does not confer standing to move to vacate the judgment or challenge the judgment on appeal.  Moreover, while appellants may appeal from the court’s implicit order denying them intervention, we find no error in that denial.  We therefore affirm.


Becerra v. The McClatchy Co. (CA5 F074680 9/30/21) Wage and Hour/Unfair Competition/Reimbursement of Expenses


This appeal arises from a class action brought by and on behalf of newspaper home delivery carriers for The Fresno Bee newspaper (hereinafter plaintiffs or the carriers). In the trial court, the matter proceeded to a bifurcated bench trial on the issue of whether the owner of The Fresno Bee and its holding company, respectively, The McClatchy Company and McClatchy Newspapers, Inc. (hereinafter collectively referred to as the newspaper or The Bee), violated the unfair competition law (UCL) (Bus. & Prof. Code, § 17200 et seq.) by failing to pay the carriers’ mileage expenses as required by Labor Code section 2802.  The primary issue at trial was whether the carriers were employees or independent contractors.  The trial court determined the carriers were independent contractors and, as a result, entered judgment in favor of The Bee. 


On appeal, the carriers contend (1) the trial court misallocated the burden of proof; (2) the trial court erred in relying on a regulation promulgated by the Employment Development Department (EDD), which the carriers contend is irrelevant; (3) the trial court erred in its application of the relevant test, as set out in S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, (Borello); (4) under Borello, the carriers are employees; (5) the trial court erred in relying on equitable considerations to determine The Bee’s liability; and (6) the trial court improperly relied on testimony from unrepresentative class members.  In supplemental briefing, the carriers additionally argue the test for employment set out in Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th 903 (Dynamex) applies, and the carriers are employees under that test. 


We agree that the question of whether the carriers are employees or independent contractors must be determined under the Borello test.  As such, the trial court erred in deferring to the EDD regulations, which we conclude are inapplicable.  Ultimately, the trial court also failed to properly analyze the factors required by Borello, and we therefore must reverse.  However, we decline to resolve whether the carriers are employees or independent contractors, and instead remand for the trial court to address this question in light of the principles set forth herein.  We address the carriers’ remaining arguments to the extent necessary to provide guidance on remand.


Bills Signed by Governor (9/30/21)


  • AB 26 by Assemblymember Chris Holden (D-Pasadena) – Peace officers: use of force.

  • AB 89 by Assemblymember Reggie Jones Sawyer (D-Los Angeles) – Peace officers: minimum qualifications.

  • AB 958 by Assemblymember Mike Gipson (D-Carson) – Peace officers: law enforcement gangs.

  • SB 2 by Senator Steven Bradford (D-Gardena) – Peace officers: certification: civil rights.

  • SB 16 by Senator Nancy Skinner (D-Berkeley) – Peace officers: release of records.


Missakian v. Amusement Industry, Inc. (CA2/5 B296749 9/29/21) Promissory Fraud/Bonus


Former in-house counsel Craig Missakian (Missakian) filed suit against his former employer Amusement Industry, Inc. (Amusement) and its founder Allen Alevy (Alevy),  based on an oral promise to pay a bonus and share of recovery from litigation.  The jury issued a special verdict in favor of Missakian on the claims brought against Amusement for breach of oral contract and promissory fraud, but the jury also made special verdict findings in favor of Alevy on the sole claim of promissory fraud brought against him, finding that Alevy did not make a false promise.  The trial court granted judgment notwithstanding the verdict (JNOV) on Missakian’s promissory fraud claim against Amusement.  Each party filed an appeal. 


Amusement appeals from the portion of the judgment awarding damages for breach of oral contract.  Amusement contends the contract in question is void under Business and Professions Code section 6147,  which requires contingency fee agreements to be in writing.  We hold that, regardless of his status as in-house counsel, Missakian’s oral agreement with Amusement is a contingency fee agreement subject to section 6147 and is therefore unenforceable as a matter of law. 


Missakian appeals from the order granting JNOV on the promissory fraud claim.  We find the jury’s special verdict to be inconsistent because it found Alevy did not make a false promise, but that Amusement (acting only through Alevy) did.  Because the court cannot choose between the jury’s inconsistent responses, the court should have ordered a new trial as to all parties rather than JNOV.


Alevy appeals from a postjudgment order denying his motion for attorney fees.  In light of our reversal of the judgment and remand for a new trial, Alevy’s contentions are moot. 


The judgment is reversed, and the case is remanded for a new trial as to all parties.


Amaro v. Anaheim Arena Management (CA4/3 G058371 9/28/21) PAGA


Considering how often trial courts review and approve class action settlements, especially in the wage and hour context, there are few published California cases providing guidance on this process.  Parties seeking approval must generally rely on federal authority.  Due to this paucity in state law, we publish this opinion to provide guidelines for courts in evaluating class action settlements.


Plaintiff Irean Amaro filed this wage and hour class action and Private Attorneys General Act (PAGA) lawsuit against defendant Anaheim Arena Management (AAM) in 2017.  At the time, there were already two existing class actions asserting the same claims.  One had been filed in 2014 and the other in 2016.  About a month after filing her lawsuit, Amaro and AAM reached a global settlement that covered the claims asserted in the two prior class actions.  The plaintiffs from the prior actions, which included intervener Rhiannon Aller, were not involved in those settlement discussions.  Aller intervened in this lawsuit and objected to the settlement.  Initially, the trial court denied preliminary approval of the settlement on grounds Amaro had not given the court enough information to determine the adequacy of the settlement.  Amaro then engaged in extensive informal discovery and entered into an amended settlement with AAM.  The court approved the amended settlement over Aller’s objections and entered judgment per the settlement’s terms.


Aller appeals, claiming the court’s approval of the settlement was erroneous for two reasons.  First, she argues the class members’ release in the settlement is improper because it extends to claims outside the scope of Amaro’s complaint, waives class members’ (from all class actions) claims under the Fair Labor Standards Act (FLSA) without obtaining their written consent, and releases PAGA claims beyond the limitations period of Amaro’s own PAGA claim.  We agree the release is overbroad.  It covers “potential claims . . . in any way relating to the” facts pled in the complaint.  The “in any way relating” language causes the release to unreasonably extend to claims that may only be tangentially related to the allegations in Amaro’s complaint, rendering it overbroad.  However, we reject Aller’s other contentions.  The FLSA’s written consent requirement does not apply to a release in a class settlement of state wage and hour claims.  Further, nothing in the PAGA statute prevents Amaro from releasing claims outside the limitations period of her own claim.


Next, Aller contends the court abused its discretion in finding the settlement was not the product of a collusive reverse auction.  Such an event occurs when a defendant sued in multiple class actions picks the most ineffectual class counsel to negotiate a weak settlement that precludes all the other class action claims.  Aller primarily relies on the fact that AAM attempted to separately negotiate settlements with the plaintiffs in the two prior lawsuits.  After those settlement discussions failed, AAM bypassed those plaintiffs and undercut their claims by negotiating a settlement with Amaro that extinguished the other class actions.  We find there is nothing inherently wrong with this process.  When such a settlement occurs, the objecting party must also show, at the very least, some evidence of unfairness to the class or misconduct to support a collusive reverse auction finding.  Aller has not done so.  Nor has she presented sufficient evidence to warrant discovery into whether the settlement was collusive.


Though we reject most of Aller’s arguments, we reverse the judgment and remand with directions due to the overbreadth of the release.


Ballou v. McElvain (9th Cir. 20-35416 9/28/21) 42 U.S.C. § 1983/Employment Sex Discrimination and Retaliation


The panel affirmed the district court’s order denying, on summary judgment, qualified immunity to Police Chief James McElvain on plaintiff’s First Amendment and Equal Protection disparate treatment claim; and held that it lacked jurisdiction under the collateral order doctrine to resolve the question of whether McElvain was entitled to qualified immunity on plaintiff’s claim that she was retaliated against, in violation of the Equal Protection Clause of the Fourteenth Amendment, in an action brought pursuant to 42 U.S.C. § 1983 alleging retaliation and employment discrimination.


Plaintiff, Julie Ballou, asserted that McElvain discriminated against her because of her gender by intentionally subjecting her to internal affairs investigations to preclude her eligibility for promotion and then declining to promote her to sergeant even though she was the most qualified candidate. The panel held that, construing all facts and inferences in her favor, Ballou sufficiently alleged unconstitutional sex discrimination in violation of the Equal Protection Cause of the Fourteenth Amendment. Plaintiff established a prima facie claim for disparate treatment and the record supported the conclusion that McElvain’s articulated reasons for not promoting Ballou were pretextual. The panel rejected, as profoundly mistaken, McElvain’s argument that to state an equal protection claim, proof of discriminatory animus alone was insufficient, and plaintiff must show that defendants treated plaintiff differently from other similarly situated individuals. The panel stated that the existence of a comparator is not a prerequisite to stating a disparate treatment claim under the Fourteenth Amendment.


The panel held that the actions alleged here were so closely analogous to those identified in Lindsey v. Shalmy, 29 F.3d 1382, 1385-86 (9th Cir. 1994), and so clearly covered by the focus on promotion in Bator v. State of Hawai‘i, 39 F.3d 1021, 1028 (9th Cir. 1994), that any reasonable officer would recognize that discriminatorily conducting an investigation to stall a promotion as unconstitutional under the two cases, read in combination. McElvain was therefore not entitled to qualified immunity on the claim that he encouraged and sustained discriminatory investigations into Ballou’s workplace performance and thereby denied her promotion at least in part on the basis of sex. As Ballou’s disparate treatment claim alleged that McElvain violated her clearly established rights under the Equal Protection Clause, McElvain was not entitled to qualified immunity on that claim.


The panel held that it lacked jurisdiction to consider whether McElvain was entitled to qualified immunity on the claim that he violated Ballou’s rights under the Equal Protection Clause of the Fourteenth Amendment by retaliating against her for opposing Defendants’ sex discrimination. The panel stated that the district court did not deny McElvain qualified immunity on Ballou’s Equal Protection retaliation claim because the district court had determined that there was no clearly established law on the constitutional issue. Because the panel’s jurisdiction under the collateral order doctrine was limited to reviewing the denial of qualified immunity, the panel declined to reach that question.


Finally, the panel affirmed the denial of qualified immunity to McElvain on Ballou’s First Amendment retaliation claim. The panel held that Ballou’s speech opposing sex discrimination in the workplace was inherently speech on a matter of public concern and was clearly protected by the First Amendment. Whether Ballou’s protected expression actually was the but-for cause of the adverse employment actions went to the ultimate question of liability and needed to be resolved by the jury at trial. But it did not bear on the question before the panel now—whether retaliating against Ballou for that expression would, as a matter of law, violate her clearly established constitutional rights. Because Ballou’s factual account was not “blatantly contradicted by the record,” the panel would not disturb the district court’s determination that Ballou’s retaliation claims were sufficiently supported to survive summary judgment.


City of Oakland v. Wells Fargo & Co. (9th Cir. 19-15169 en banc 9/28/21) Fair Housing Act/ Proximate Cause


The en banc court affirmed in part and reversed in part the district court’s partial grant and partial denial of Wells Fargo’s motion to dismiss and remanded for dismissal of the City of Oakland’s claims under the Fair Housing Act, alleging that Wells Fargo’s discriminatory lending practices caused higher default rates, which in turn triggered higher foreclosure rates that drove down the assessed value of properties, and which ultimately resulted in lost property tax revenue and increased municipal expenditures.


The en banc court held that under Bank of America Corp. v. City of Miami, 137 S. Ct. 1296 (2017), foreseeability alone is not sufficient to establish proximate cause under the Fair Housing Act, and there must be “some direct relation between the injury asserted and the injurious conduct alleged.” The en banc court held that the downstream “ripples of harm” from Wells Fargo’s alleged lending practices were too attenuated and traveled too far beyond Wells Fargo’s alleged misconduct to establish proximate cause.


The en banc court affirmed the district court’s dismissal of the City’s damages claim related to increased municipal expenditures and reversed the district court’s denial of Wells Fargo’s motion to dismiss the damages claim related to lost property tax revenue and claims for injunctive and declaratory relief.


The en banc court held that the City of Oakland did not sufficiently plead proximate cause for its reduced tax revenue claim because its theory of harm went beyond the first step of the causal chain, which was the harm to minority buyers who received predatory loans. The en banc court concluded that the Fair Housing Act is not a statute that supports proximate cause for injuries further downstream, and the extension of proximate cause beyond the first step was not administratively possible and convenient. For the same reasons, the City also failed sufficiently to plead proximate cause for its increased municipal expenses claim.


The en banc court held that, in addition to claims for damages, the proximate-cause requirement in Miami also applies to injunctive and declaratory relief. It therefore reversed the district court’s judgment to the contrary.



Dept. of Fair Employment and Housing v. M&N Financing Corp. (CA2/5 B298901 9/27/21) Unruh Act/FEHA/Failure to Prevent Discrimination


Defendants M&N Financing Corporation (M&N) and Mahmood Nasiry operated a business that purchased retail installment sales contracts (contracts) from used car dealerships.  In deciding how much to pay for the contracts, defendants used a formula that considered the gender of the car purchaser.  Specifically, defendants would pay more for a contract with a male purchaser than for a contract with a female purchaser or female coborrower (collectively, female borrowers).


The Department of Fair Employment and Housing (the Department) filed a complaint that alleged numerous causes of action.  The Department moved for summary adjudication.  The trial court entered judgment in favor of the Department on the first and second causes of action, which alleged violations of the Unruh Civil Rights Act (Civ. Code, § 51) and Civil Code section 51.5, and assessed over $6 million in statutory damages pursuant to Civil Code section 52, subdivision (a).  The court dismissed the fifth, sixth, and seventh causes of action, which alleged violations of Government Code  section 12940, subdivisions (i) and (k) of the Fair Employment and Housing Act (FEHA) (§ 12900 et seq.).  Defendants appeal and the Department cross-appeals.  We hold that the court erred in dismissing the fifth cause of action.  We otherwise affirm.


Bills Signed by Governor (9/27/21)


  • AB 73 by Assemblymember Robert Rivas (D-Hollister) – Health emergencies: employment safety: agricultural workers: wildfire smoke

  • AB 628 by Assemblymember Eduardo Garcia (D-Coachella) –  Breaking Barriers to Employment Initiative

  • AB 643 by Assemblymember James C. Ramos (D-Highland) – Apprenticeship programs: career fairs

  • AB 1003 by Assemblymember Lorena Gonzalez (D-San Diego) – Wage theft: grand theft.

  • AB 1023 by Assemblymember Heath Flora (R-Ripon) – Contractors and subcontractors: records: penalties

  • AB 1033 by Assemblymember Rebecca Bauer-Kahan (D-Orinda) – California Family Rights Act: parent-in-law: small employer family leave mediation: pilot program

  • AB 1506 by Assemblymember Ash Kalra (D-San Jose) – Worker status: employees and independent contractors: newspaper distributors and carriers

  • SB 62 by Senator María Elena Durazo (D-Los Angeles) – Employment: garment manufacturing

  • SB 270 by Senator María Elena Durazo (D-Los Angeles) – Public employment: labor relations: employee information

  • SB 278 by Senator Connie Leyva (D-Chino) – Public Employees’ Retirement System: disallowed compensation: benefit adjustments

  • SB 321 by Senator María Elena Durazo (D-Los Angeles) –  Employment safety standards: advisory committee: household domestic services

  • SB 338 by Senator Lena Gonzalez (D-Long Beach) – Joint and several liability of port drayage motor carrier customers: health and safety violations: prior offenders: liability owed to the state

  • SB 362 by Senator Josh Newman (D-Fullerton) – Chain community pharmacies: quotas

  • SB 572 by Senator Robert Hertzberg (D-Van Nuys) – Labor Commissioner: enforcement: lien on real property

  • SB 606 by Senator Lena Gonzalez (D-Long Beach) – Workplace safety: violations of statutes: enterprise-wide violations: egregious violations

  • SB 639 by Senator María Elena Durazo (D-Los Angeles) – Minimum wages: persons with disabilities

  • SB 646 by Senator Robert Hertzberg (D-Van Nuys) – Labor Code Private Attorneys General Act of 2004: janitorial employees

  • SB 727 by Senator Connie Leyva (D-Chino) – Labor-related liabilities: direct contractor


Bills Signed by Governor (9/24/21)


  • AB 846 by Assemblymember Evan Low (D-Campbell) - Local Agency Public Construction Act: job order contracting

  • AB 1293 by Assemblymember Ken Cooley (D-Rancho Cordova) - Judges' Retirement System II: federal law limits: adjustments


Bills Signed by Governor (9/23/21)


  • SB 165 by the Committee on Budget and Fiscal Review – State employment: State Bargaining Units

  • SB 807 by Senator Bob Wieckowski (D-Fremont) – Enforcement of civil rights: Department of Fair Employment and Housing


Thurston v. Omni Hotels Management Corporation (CA4/2 E074098 9/23/21) Unruh Act/Intent to Use Services on Website


Cheryl Thurston (Thurston) is blind and uses screen reader software (a screen reader) to access the Internet and read website content.  Defendant and respondent Omni Hotels Management Corporation (Omni) operates hotels and resorts.  In November 2016, Thurston initiated this action against Omni, alleging that its website is not fully accessible by the blind and the visually impaired, in violation of the Unruh Civil Rights Act (the Unruh Act; Civ. Code, § 51 et seq.).  By way of a special verdict, the jury rejected Thurston’s claim and found that she never intended to make a hotel reservation or ascertain Omni’s prices and accommodations for the purpose of making a hotel reservation.


On appeal, Thurston contends the trial court erred as a matter of law (1) by instructing the jury that her claim required a finding that she intended to make a hotel reservation, and (2) by including the word “purpose” in the special verdict form, which caused the jury to make a “factual finding as to [her] motivation for using or attempting to use [Omni’s] Website.”  We affirm.


Bills Signed by Governor (9/22/21)


  • AB 262 by Assemblymember Jim Patterson (R-Fresno) – Human trafficking: vacatur relief for victims

  • AB 565 by Assemblymember Tom Lackey (R-Palmdale) – Interagency Advisory Committee on Apprenticeship: homeless youth and foster youth.

  • AB 701 by Assemblymember Lorena Gonzalez (D-San Diego) – Warehouse distribution center workers

  • AB 941 by Assemblymember Steve Bennett (D-Ventura) – Farmworker assistance: resource centers

  • AB 1031 by Assemblymember Carlos Villapudua (D-Stockton) – State agencies: interns and student assistants: hiring preference

  • SB 501 by Senator Bob Wieckowski (D-Fremont) – Claims against public entities

  • SB 509 by Senator Scott Wilk (R-Santa Clarita) – Optometry: COVID-19 pandemic: temporary licenses.

  • SB 762 by Senator Bob Wieckowski (D-Fremont) – Contracts.

  • SB 779 by Senator Josh Becker (D-Menlo Park) – California Workforce Innovation Opportunity Act: earn and learn programs


Bill Vetoed by Governor (9/22/21)


  • AB 616 by Assemblymember Mark Stone (D-Scotts Valley) – Agricultural labor relations: labor representative elections: representation ballot card election. A veto message can be found here.


Lawson v. Grubhub (9th Cir. 18-15386 9/20/21) ABC Test/Expense Reimbursement 

The panel affirmed the district court’s denial of class certification, vacated the judgment for Grubhub, Inc. on the minimum wage, overtime, and expense reimbursement claims, and remanded for further proceedings in a diversity action brought by a plaintiff food delivery driver for Grubhub.


Grubhub classified the plaintiff as an independent contractor rather than as an employee. The plaintiff alleged he was misclassified, alleged violations of the California Labor Code, and sought to represent a class of similarly situated delivery drivers in California.


The panel held the district court properly denied certification to plaintiff’s proposed class of delivery drivers in California. All members of plaintiff’s putative class – except plaintiff and one other – signed agreements waiving their right to participate in a class action. Plaintiff could not satisfy the requirement in Fed. R. Civ. P. 23(a) because he is neither typical of the class nor an adequate representative, and because the proceedings would be unlikely to generate common answers. Plaintiff adduced no facts in addition to those already considered by the district court that would change the analysis as to class certification.


In Dynamex Operations W., Inc. v. Superior Court, 416 P.3d 1, 33–40 (Cal. 2018), the California Supreme Court adopted an “ABC test” for classification of workers raising claims rooted in California wage orders. In Vazquez v. JanPro Franchising International, Inc., 478 P.3d 1207 (Cal. 2021), the California Supreme Court held that the ABC test applied retroactively to claims rooted in wage orders. The panel rejected Grubhub’s contention that California Proposition 22 “abated” the application of its ABC test to plaintiff’s pending claims.


There is no dispute that plaintiff’s minimum wage and overtime claims are rooted in wage orders. Because the district court rendered its judgment before the California Supreme Court decided Dynamex, it had no occasion to apply the ABC test to plaintiff’s claims. The panel remanded to the district court to apply the ABC test in the first instance.


The California Supreme Court in Dynamex did not consider whether expense reimbursement claims under Cal. Labor Code § 2802 were subject to the ABC test. The panel remanded for the district court to decide in the first instance whether the ABC test applied to plaintiff’s expense reimbursement claim.


Guzman v. NBA Automotive, Inc. (CA2/7 B303655 9/17/21) DFEH Exhaustion of Administrative Remedies/Incorrect Business Name


Gloria Guzman timely filed an administrative complaint with the Department of Fair Housing and Employment (DFEH) after her employer, NBA Automotive, Inc. dba Hooman Chevrolet of Culver City (NBA Automotive), terminated her employment.  DFEH issued Guzman a right-to-sue letter, and Guzman filed this action against NBA Automotive, alleging wrongful termination and various causes of action under the Fair Employment and Housing Act (Gov. Code, § 12900 et seq.) (FEHA).  A jury found in favor of Guzman and awarded her monetary damages, and the trial court entered judgment in her favor.


NBA Automotive appeals from the judgment, challenging the trial court’s orders denying its motions for judgment notwithstanding the verdict and for a new trial.  NBA Automotive argues Guzman failed to exhaust her administrative remedies under FEHA because her administrative complaint, though it named something very close (“Hooman Chevrolet”) to NBA Automotive’s correct fictitious business name (“Hooman Chevrolet of Culver City”), it incorrectly identified “Hooman Enterprises, Inc.,” rather than “NBA Automotive, Inc.,” as the corporation doing business as Hooman Chevrolet of Culver City.  Because Guzman’s administrative complaint sufficiently identified her employer, she exhausted her administrative remedies within the statutory limitations period.  Therefore, we affirm.


Bills Signed by Governor (9/16/21)


  • AB 468 by Assemblymember Laura Friedman (D-Glendale) – Emotional support animals

  • SB 352 by Senator Susan Talamantes Eggman (D-Stockton) – The military: sexual harassment

  • SB 634 by the Committee on Labor, Public Employment and Retirement – Public employees’ retirement


Chamber of Commerce v. Bonta (9th Cir. 20-15291 9/15/21) AB 51/Arbitration Preemption


The panel reversed, in part, the district court’s conclusion that California Assembly Bill 51 is preempted by the Federal Arbitration Act; affirmed the district court’s determination that the civil and criminal penalties associated with AB 51 were preempted; vacated the district court’s preliminary injunction enjoining AB 51’s enforcement; and remanded for further proceedings.


AB 51, which added § 432.6 to the California Labor Code, was enacted with the purpose of ensuring that individuals are not retaliated against for refusing to consent to the waiver of rights and procedures established in the California Fair Employment and Housing Act and the California Labor Code; and to ensure that any contract relating to those rights and procedures be entered into as a matter of voluntary consent, not coercion. Other provisions of the California Code, specifically Labor Code § 433 and Government Code § 12953, render violations of § 432.6 a misdemeanor offense and open an employer to potential civil sanctions. The district court concluded that AB 51 placed agreements to arbitrate on unequal footing with other contracts and also that AB 51 stood as an obstacle to the purposes and objectives of the Federal Arbitration Act (“FAA”). The district court preliminarily enjoined enforcement of § 432.6(a)–(c) as to arbitration agreements covered by the FAA. 


The panel held that California Labor Code § 432.6 neither conflicted with the language of § 2 of the FAA nor created a contract defense by which executed arbitration agreements could be invalidated or not enforced. A thorough review of the historical context of the FAA, its legislative history, and subsequent Supreme Court jurisprudence demonstrated that Congress was focused on the enforcement and validity of consensual written agreements to arbitrate and did not intend to preempt state laws requiring that agreements to arbitrate be voluntary. The panel held that § 432.6 did not make invalid or unenforceable any agreement to arbitrate, even if such agreement was consummated in violation of the statute. Rather, the panel noted that while mandating that employer-employee arbitration agreements be consensual, § 432.6 specifically provides that nothing in the section was intended to invalidate a written arbitration agreement that was otherwise enforceable under the FAA. The panel determined that § 432.6 applied only in the absence of an agreement to arbitrate and expressly provided for the validity and enforceability of agreements to arbitrate. The panel held that because the district court erred in concluding that § 432.6(a)–(c) were preempted by the FAA, it necessarily abused its discretion in granting Appellees a preliminary injunction.


The panel agreed, however, that the civil and criminal penalties associated with AB 51 stood as an obstacle to the purposes of the FAA and were therefore preempted. The panel held that Section § 432.6 was not preempted by the FAA because it was solely concerned with pre-agreement employer behavior, but because the accompanying enforcement mechanisms sanctioning employers for violating § 432.6 necessarily included punishing employers for entering into an agreement to arbitrate. The panel held that a state law that incarcerates an employer for six months for entering into an arbitration agreement directly conflicts with § 2 of the FAA. Therefore, the panel held that Government Code § 12953 and Labor Code § 433 were preempted to the extent that they applied to executed arbitration agreements covered by the FAA.


Dissenting, Judge Ikuta stated that AB 51 has a disproportionate impact on arbitration agreements by making it a crime for employers to require arbitration provisions in employment contracts. She stated that the majority abetted California’s attempt to evade the FAA and the Supreme Court’s caselaw by upholding this anti-arbitration law on the pretext that it barred only nonconsensual agreements. Judge Ikuta stated that the majority’s ruling conflicted with the Supreme Court’s clear guidance in Kindred Nursing Centers Ltd. Partnership v. Clark, 137 S. Ct. 1421, 1425 (2017), which held that the FAA invalidates state laws that impede the formation of arbitration agreements. The majority ruling also created a circuit split with sister circuits, which have held that too clever-by-half workarounds and covert efforts to block the formation of arbitration agreements are preempted by the FAA just as much as laws that block enforcement of such agreements.


Curcio v. Fontana Teachers Assn. CTA/NEA (CA4/2 E072972, filed 8/23/21, pub. ord. 9/14/21) Duty of Fair Representation/Unfair Practices


Sharon Curcio, formerly a teacher with the Fontana Unified School District (the district), learned her personnel file included derogatory statements about her.  When the district refused to allow Curcio to obtain or review those statements, she sought assistance from her union, the Fontana Teachers Association (FTA), and from the California Teachers Association (CTA).  Such assistance was not forthcoming, so Curcio initiated proceedings before the Public Employees Relations Board (the board), claiming FTA and CTA breached their duties of fair representation and engaged in unfair practices in violation of the Educational Employment Relations Act (the Act).  (Gov. Code, § 3540 et seq.).  When the board decided not to issue a complaint, Curcio filed this lawsuit.


Curcio appeals from the judgment of dismissal after the superior court sustained FTA and CTA’s demurrer, without leave to amend, to Curcio’s second amended petition for writ of mandate.  The demurrer was grounded on FTA and CTA’s claims that the board had the exclusive jurisdiction to decide whether Curcio had or had not stated an unfair practice and, therefore, the superior court lacked jurisdiction.  We affirm.


Warmenhoven v. NetApp (9th Cir. 19-16960 9/13/21) ERISA


The panel affirmed in part and vacated in part the district court’s summary judgment in favor of defendants on retired executives’ claims that termination of the NetApp Executive Medical Retirement Plan violated ERISA because they had been promised lifetime benefits.


Only one plaintiff appealed. The panel affirmed the district court’s judgment as to plaintiff’s direct claim for benefits under 29 U.S.C. § 1132(a)(1)(B). The panel held that the default rule under ERISA is that employers may freely terminate welfare benefit plans. The panel concluded that PowerPoint presentations summarizing the Plan for participating executives did not override the default rule, where certificates of insurance coverage included provisions granting NetApp the authority to terminate benefits under the Plan at any time. The panel held that the PowerPoint presentations were not Plan documents because they did not qualify as written instruments under 29 U.S.C. § 1102(b), and they therefore could not vest lifetime benefits.


The panel vacated the judgment as to plaintiff’s alternative claim for equitable relief under 29 U.S.C. § 1132(a)(3) and remanded for further proceedings on that claim. Plaintiff alleged that, if the Plan did not grant him vested lifetime benefits, then NetApp misrepresented the nature of the Plan in the PowerPoints, in violation of the fiduciary duties it owed as a Plan administrator. The panel held that the district court erred in in granting summary judgment on the ground that NetApp did not commit a remediable wrong under 29 U.S.C. § 1104(a)(1) by failing to discharge its duties with respect to the Plan solely in the interest of the participants and beneficiaries. Disagreeing with the Seventh Circuit, the panel held that there is no intentional deceit requirement under § 1104(a)(1). The panel further held that the district court erred in concluding that the fiduciary duty claim failed because plaintiff could have examined the certificates of insurance to dispel any misunderstanding arising from the PowerPoints. The panel concluded that plaintiff did not forfeit any argument on the remedy prong of his claim for equitable relief, an issue not reached by the district court.


Dr. V. Productions, Inc., v. Rey (CA2/5  B312605, ord. dism. appeal, filed 9/8/21, pub. ord. 9/10/21) Bad Faith Prosecution of Trade Secret Misappropriation


Plaintiff and respondent Dr. V. Productions, Inc. moves to dismiss [former employee and] defendant and appellant Samantha Rey’s appeal from an order denying appellant’s motion for $273,484.56 in attorney’s fees under Civil Code section 3426.4 (section 3426.4).  That statute provides for attorney’s fees for the bad faith prosecution of a trade secret misappropriation claim.  Respondent argues the order is not separately appealable.  We agree.


Jorgensen v. Loyola Marymount University (CA2/8 B305594 9/10/21) Employment Discrimination/Stray Remarks


Linda Jorgensen sued Loyola Marymount University for retaliation and age and gender discrimination.  (See Gov. Code, § 12940 et seq.)  The trial court granted the University’s motion for summary judgment but erroneously excluded evidence a University employee rejected a job candidate because she “wanted someone younger.”  Reid v. Google, Inc. (2010) 50 Cal.4th 512, 535–545 (Reid) explained such remarks can be relevant in age discrimination suits.  Together with other evidence, they can make summary judgment inappropriate.  That holds here.


Medina v. Equilon Enterprises, LLC (CA4/3 G058820 9/10/21) Joint Employer


Plaintiff Santiago Medina appeals from a summary judgment entered against him and in favor of his putative joint employer, defendant Equilon Enterprises, LLC (Shell), which is a Shell Oil Company subsidiary doing business as Shell Oil Products US.


Shell owned gas stations and operated them through contracts with separate companies called MSO operators, one of which employed plaintiff as a gas station cashier and manager.  Plaintiff sued the MSO operator and Shell, alleging violations of the Labor Code and arguing that Shell was his joint employer, based upon Shell’s strict control over the operations of its gas stations.  Relying on two prior published decisions of our sister courts of appeal involving similar claims, Curry v. Equilon Enterprises, LLC (2018) 23 Cal.App.5th 289 (Curry) and Henderson v. Equilon Enterprises, LLC (2019) 40 Cal.App.5th 1111 (Henderson), Shell moved for summary judgment, arguing Shell was not plaintiff’s employer as a matter of law.  The trial court concluded it was bound by these prior decisions and granted the motion.


We reverse.  The facts presented by plaintiff in this case, particularly with respect to the degree of Shell’s control over the MSO operators and gas station employees like plaintiff, differ meaningfully from the facts set forth in the two prior opinions.  In addition to these factual distinctions, we also disagree with the analysis of our sister courts on the application of the relevant tests for joint employer status to Shell’s operation.  We conclude the undisputed facts presented in Shell’s motion show Shell both indirectly controlled plaintiff’s wages and working conditions and suffered or permitted plaintiff to work at Shell’s stations, either of which is enough to make Shell plaintiff’s joint employer.


Wesson v. Staples the Office Superstore, LLC (CA2/4 B302988 9/9/21) PAGA Manageability


This appeal raises a question of first impression:  whether trial courts have inherent authority to ensure that PAGA claims will be manageable at trial, and to strike such claims if they cannot be managed.  We hold that courts possess this authority. 


Appellant Fred Wesson worked for respondent Staples the Office Superstore, LLC (Staples) as a store general manager (GM).  He brought this action against Staples, asserting, among other things, a representative claim under the Private Attorneys General Act of 2004 (PAGA) (Lab. Code, § 2698 et seq.) on behalf of himself and 345 other current and former Staples GMs in California.  In his PAGA claim, Wesson sought almost $36 million in civil penalties for alleged Labor Code violations, all premised on the theory that Staples had misclassified its GMs as exempt executives. 


Staples moved to strike Wesson’s PAGA claim, arguing that given the number of employees it covered and the nature of his allegations, the action would be “unmanageable” and would violate Staples’s due process rights.  It contended that its intended affirmative defense -- that it properly classified its GMs as exempt and thus committed no Labor Code violations -- would require individualized proof as to each GM, and thus that the claim could not be fairly and efficiently litigated.  In his opposition, Wesson contended that the trial court lacked authority to ensure that PAGA actions are manageable, and argued that even if the court had such authority, it was sufficient that his prima facie case was manageable; whether Staples’s affirmative defense could be managed at trial, Wesson contended, was irrelevant.  While Staples’s motion was pending, Wesson moved for summary adjudication of his PAGA claim. 

The trial court invited Wesson to submit a trial plan showing that his PAGA action would be manageable at trial.  In response, Wesson continued to insist that the court lacked authority to require that his claim be manageable, and laid out his plan to prove his prima facie case using common proof, but declined to address how the parties could litigate Staples’s affirmative defense.  Following this response, the court concluded that the PAGA claim could not be managed at trial and granted Staples’s motion to strike it.  Given this ruling, the court found no need to consider Wesson’s motion for summary adjudication as to his PAGA claim and denied the motion. 


Wesson challenges both rulings on appeal.  He claims the court erred in failing to consider his motion for summary adjudication, as it had the potential to narrow the issues and make the action more manageable.  He contends the court should have granted his motion because Staples had failed to provide individualized evidence in support of its exemption defense, at least as to some GMs.  As to Staples’s motion to strike, Wesson repeats his arguments that the court had no authority to strike his PAGA claim as unmanageable, and that any manageability assessment need not have considered Staples’s affirmative defense.  He adds that Staples had no due process right to present individualized evidence in support of its defense. 

In the unpublished portion of this opinion, we conclude that Wesson was not entitled to summary adjudication, as Staples presented sufficient evidence to support its exemption defense as to all GMs.  In the published portion, we draw on established principles of the courts’ inherent authority to manage litigation, including ensuring the manageability of representative claims, and conclude that:  (1) courts have inherent authority to ensure that PAGA claims can be fairly and efficiently tried and, if necessary, may strike claims that cannot be rendered manageable; (2) as a matter of due process, defendants are entitled to a fair opportunity to litigate available affirmative defenses, and a court’s manageability assessment should account for them; and (3) given the state of the record and Wesson’s lack of cooperation with the trial court’s manageability inquiry, the court did not abuse its discretion in striking his PAGA claim as unmanageable.  We therefore affirm.


Sandoval v. Qualcomm Incorporated (SC S252796 9/9/21) Liability for Contractor’s Subcontractor


An electrical parts specialist sustained third degree burns to over one third of the surface area of his body after he triggered an arc flash from a circuit he did not realize was “live” with flowing electricity.  The contractor for whom he’d been working had removed the protective cover on that live circuit while work was underway.  A jury concluded that the contractor acted negligently and was liable for the injuries.  What this case is about is whether further liability arises for the company that hired the contractor, owned the premises, and operated the electrical equipment.  The answer here is no. 


Strong public policy considerations readily acknowledged in our past decisions generally support a straightforward presumption about the responsibilities of hirers and contractors for worker injuries in situations like this:  A person or entity hiring an independent contractor (a “hirer”) ordinarily delegates to that independent contractor all responsibility for the safety of the contractor’s workers.  (SeaBright Ins. Co. v. US Airways, Inc. (2011) 52 Cal.4th 590, 597, 600, 602 (SeaBright).)  This presumption is rooted in hirers’ reasons for employing contractors in the first place, and society’s need for clear rules about who’s responsible for avoiding harms to workers when contractors are hired.  We have therefore generally avoided subjecting hirers to tort liability for those workers’ injuries.  (See id. at pp. 598–599.)  But that presumption gives way to two recognized exceptions:  where the hirer either withholds critical information regarding a concealed hazard (Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 664 (Kinsman)); or retains control over the contractor’s work and actually exercises that control in a way that affirmatively contributes to the worker’s injury (Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 202 (Hooker)).  The parties dispute how this presumption of delegation and its two exceptions apply here.  The Court of Appeal affirmed a jury verdict finding the hirer liable under a retained control theory of liability. 


What we conclude is that defendant Qualcomm Incorporated, the hirer in this case, owed no tort duty to plaintiff Martin Sandoval, the parts specialist working for Qualcomm’s contractor, at the time of Sandoval’s injuries.  Although Qualcomm performed the partial power-down process that preceded the contractor’s work and resulted in the presence of the live electrical circuit, we conclude on the record here that Qualcomm neither failed to sufficiently disclose that hazard under Kinsman nor affirmatively contributed to the injury under Hooker.  We also conclude that the pattern jury instruction used in this case — CACI No. 1009B — does not adequately capture the elements of a Hooker claim.  So we reverse the judgment of the Court of Appeal and remand this case.  The appellate court is instructed to remand this case to the trial court, so it can enter judgment for Qualcomm notwithstanding the verdict.


Csutoras v. Paradise High School (9th Cir. 19-17373 9/7/21) ADA/Rehabilitation Act


The panel affirmed the district court’s grant of summary judgment in favor of Paradise High School and Paradise Unified School District in an action brought under Title II of the Americans with Disabilities Act and § 504 of the Rehabilitation Act by Cyrus Csutoras.


Csutoras, a student with attention deficit disorder, sought damages after he was assaulted and seriously injured by another student at a high school football game.


The panel held that guidance issued by the Department of Education in Dear Colleague Letters was not binding, and the school’s failure to adopt all of the Letters’ suggestions did not amount to disability discrimination. The panel held that to assert a cognizable claim for damages under the ADA or the Rehabilitation Act, Csutoras was required to establish intentional discrimination or deliberate indifference by defendants. The panel held that Csutoras did not meet the high bar of deliberate indifference because the Dear Colleague Letters did not make his need for social accommodations “obvious,” such that failure to enact the Letters’ recommendations constituted a denial of a reasonable accommodation with deliberate indifference. Further, no request for a social-related accommodation was ever made, and no prior incidents of bullying or harassment involving Csoturas were observed or reported to the school prior to the assault during the football game.


People ex rel. Garcia-Brower v. Kolla’s Inc., nonpublished opinion, 2021 WL 1851487 (CA 4/2 May 10, 2021), review granted (Sept. 1, 2021); S269456/G057831, Wage and Hour


Petition for review after part affirmance and part reversal of judgment.  Does Labor Code section 1102.5, subdivision (b), which protects an employee from retaliation for disclosing unlawful activity, apply when the information is already known to that person or agency?  Review granted/brief due.



Court of Appeal Decision


Herrera v. Doctors Medical Center of Modesto (CA5 F080963M, mod. 9/1/21) Arbitration/PAGA Representative Actions



            It is hereby ordered that the published opinion filed on August 5, 2021, be modified as follows:

  1. On page 8, last sentence of the second full paragraph, the word “his” is changed to “its.”

  2. On page 10, the first paragraph beginning “To compel arbitration” is deleted and the following paragraph is inserted in its place: 

To compel arbitration of the PAGA representative claims pursuant to the individual acknowledgements signed by plaintiffs in 2010, defendant must establish (1) the acknowledgements’ arbitration provisions are worded broadly enough to encompass the PAGA representative claims and (2) the arbitration agreements are enforceable as to the PAGA claims despite the fact the agreements were not signed or otherwise adopted on behalf of the state.

  1. On page 10, in the first sentence of the second paragraph, the word “requirement” is changed to “issue” and the word “here” is inserted between the words “detail” and “because,” so the sentence now reads:

The first issue is not addressed in detail here because we assume without deciding that the PAGA representative claims alleged by plaintiffs are covered by the agreement to use defendant’s FTP and “submit to final and binding arbitration … any and all claims and disputes that are related in any way to my employment.”

  1. On page 10, the first sentence of the third paragraph beginning “The requirement that” is deleted and replaced with the following two sentences:

The second issue presents a question of California law about whether an employee’s predispute agreement to arbitrate PAGA representative claims is enforceable when the state is not a party to the agreement.  This legal question has been resolved many times and the analysis used typically begins with an interpretation of Iskanian, supra, 59 Cal.4th 348. 


            There is no change in judgment.

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