Reverse chronological e-mail alerts prepared pro bono for the California Lawyers Association (formerly State Bar of California) Labor & Employment Law Section since 2007, covering California, 9th Circuit and US Supreme Court decisions, and new laws signed by Governor. To subscribe, contact LaborLaw@CLA.Legal.
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Bills Signed by Governor (9/6/22)
AB 151 by the Committee on Budget – State employment: State Bargaining units: agreements: compensation and benefits
AB 2130 by Assemblymember Jordan Cunningham (R-San Luis Obispo County) – Emergency medical services: human trafficking training
Bill Signed by Governor (9/5/22)
Oswald v. Murray Plumbing & Heating Corp. (CA2/2 B312736 9/2/22) CBA/PAGA
This appeal concerns an arbitration clause in a construction industry collective bargaining agreement (CBA). The issue is whether the CBA bars a Private Attorneys General Act (PAGA) lawsuit. (Lab. Code, § 2698 et seq.) PAGA allows employees—once they exhaust administrative procedures—to seek civil penalties for Labor Code violations, on behalf of the state. (§§ 2699, subd. (a), 2699.3, 2699.5.)
The right to file a PAGA action generally cannot be waived by contract. However, the Labor Code exempts construction workers from PAGA if a CBA covers wages, hours and working conditions and (1) has a grievance and arbitration procedure to redress Labor Code violations; (2) clearly waives PAGA; and (3) authorizes the arbitrator to award all remedies available under the Labor Code. (§ 2699.6, subd. (a).)
The parties’ CBA clearly waives PAGA and satisfies the requirements of section 2699.6, as a matter of law. Their dispute is exempt from PAGA. We reverse the trial court’s order denying the employer’s motion to compel arbitration and direct the court to enter an order granting the motion.
Bills Signed by Governor (9/2/22)
AB 1824 by the Committee on Public Employment and Retirement – Public employees’ retirement.
SB 957 by Senator John Laird (D-Santa Cruz) – Public Employment Relations Board: Santa Cruz Metropolitan Transit District: employee relations.
Bills Signed and Vetoed by Governor (8/29/22)
AB 1644, Flora. Greenhouse Gas Reduction Fund: Fund: California Jobs Plan Act of 2021.
AB 1758 by Assemblymember Cecilia Aguiar-Curry (D-Winters) – Board of Behavioral Sciences: marriage and family therapists: clinical social workers: professional clinical counselors: supervision of applicants for licensure via videoconferencing.
AB 2463 by Assemblymember Alex Lee (D-San Jose) – Public works: exemption.
AB 2737 by Assemblymember Wendy Carrillo (D-Los Angeles) – Air pollution: purchase of new drayage and short-haul trucks: incentive programs: lessees: labor standards.
SB 850 by Senator John Laird (D-Santa Cruz) – Special death benefits: additional percentages: children of members.
Hale v. Cal. Pub. Employees' Ret. System (CA1/3 A161758 8/29/22) CalPERS Retirement | Holiday Leave Credits
After Kenneth Hale and Robert Wolf retired from public service, they sought to have California Public Employees’ Retirement System (CalPERS) include in their pension calculations “cash-outs” they received for accrued holiday leave credits. CalPERS declined to do so, and the trial court upheld its decision. Hale and Lavonne Wolf (the heir of Robert Wolf, who is now deceased) have appealed the judgment. We reverse.
Bills Signed by Governor (8/26/22)
AB 2001 by Assemblymember Tim Grayson (D-Concord) – California Financing Law: remote work.
SB 835 by Senator Josh Newman (D-Fullerton) – Employee benefits: Legislature: employees and officers: benefits.
SB 1064 by Senator Josh Newman (D-Fullerton) – Structural pest control: workers’ compensation insurance coverage.
SB 1126 by Senator Dave Cortese (D-San Jose) – CalSavers: retirement savings.
SB 1168 by Senator Dave Cortese (D-San Jose) – Public employees’ retirement: beneficiary payment.
SB 1402 by Senator Thomas Umberg (D-Santa Ana) – Public employees’ retirement: armed forces: service credit.
Manuel v. Super. Ct. (CA6 H048655 8/26/22) Wrongful Termination/Discovery re Immigration Status
Petitioner Rigoberto Jose Manuel brought an action for wrongful termination after he was injured during the course of his employment with real party in interest BrightView Landscape Services, Inc. (BrightView). The parties dispute whether Manuel’s employment was terminated by BrightView in retaliation for his job injury or whether he failed to return to work due to federal immigration authorities questioning his documentation of his eligibility to work in the United States.
After Manuel objected to BrightView’s written discovery requests inquiring into his immigration status, BrightView brought a motion for an order compelling Manuel to provide further responses to its discovery requests, which the trial court granted in its November 16, 2020 order. Manuel challenged the order by filing a petition for writ of mandate in this court. In his petition, Manuel argues that the trial court abused its discretion in granting BrightView’s motion to compel further responses to written discovery because BrightView did not meet its burden, pursuant to Senate Bill No. 1818 (Stats. 2002, ch. 1071, § 1, p. 6913) and its statutory enactments, to show by clear and convincing evidence that inquiry into his immigration status was necessary to comply with federal immigration law. For the reasons stated below, we agree.
We will therefore issue a peremptory writ of mandate directing the trial court to vacate its November 16, 2020 order and to enter a new order denying BrightView’s motion for an order compelling Manuel to provide further responses to written discovery.
Musgrove v. Silver (CA2/2 B311504 8/25/22) Scope of Employment/Vicarious Liability
As part of an entourage of family and friends, a Hollywood producer brought the executive assistant he employed through his company as well as a French chef he personally employed to a luxurious resort in Bora Bora; the trip was part vacation for both the assistant and the chef, although the assistant met with the concierge to plan the entourage’s daily recreational activities and the chef prepared all lunches and dinners. Tragically, the executive assistant drowned when she went for a midnight swim in the lagoon outside her overwater bungalow. The drowning was accidental, and related to her ingestion of alcohol and cocaine in the hours prior to her swim. The executive assistant’s parents sued the producer for wrongful death, on the theory that he is (1) directly liable, because he paid all resort-related expenses of the trip, including for alcohol, and (2) vicariously liable, because he employed the chef, who had met up with the executive assistant for a late-night rendezvous when she drank half a bottle of wine and snorted a “significant” amount of cocaine just before going for a swim. In granting summary judgment, the trial court ruled that the producer was not liable under either theory as a matter of law. The primary issue on appeal is whether the chef was acting within the scope of his employment—thereby rendering the producer vicariously liable—when the chef met up with the executive assistant for a nightcap and, by allegedly supplying her with alcohol and cocaine while knowing she liked to swim at night, put her in a position of peril from which he failed to protect her. Although the precedent on vicarious liability is untidy, we hold that the chef’s late-night activities with the assistant were not within the scope of his employment under each of the four tests articulated by the California courts for assessing the scope of employment for purposes of imposing vicarious liability. Because the trial court’s ruling on direct liability was also correct, we affirm the judgment for the producer.
Siri v. Sutter Home Winery (CA1/4 A161923 8/25/22) Settlement Agreement/998 Procedures
Says Siri appeals from a judgment of dismissal entered after the trial court granted a motion by Sutter Home Winery, Inc., doing business as Trinchero Family Estates (Trinchero) to enforce a [wrongful termination] settlement agreement pursuant to Code of Civil Procedure section 998 (section 998). Siri contends the judgment must be reversed because the court exceeded its authority by purporting to adjudicate whether the parties’ offer and acceptance formed a binding agreement. While it may be that in an appropriate procedural context the formation of a binding settlement agreement can be established–—an issue we do not decide—the trial court erred in holding that such an agreement had been reached pursuant to the procedures of section 998. Therefore, the judgment of dismissal must be reversed.
Wolf v. Life Ins. Co. of North America (9th Cir. 21-35485 8/25/22) ERISA
The panel affirmed the district court’s summary judgment in favor of the plaintiff in an action under the Employee Retirement Income Security Act concerning the denial of an insurance claim based on the plaintiff’s son’s accidental death.
The son died in a one-car collision. He was intoxicated and had been driving at a high speed in the wrong direction down a one-way road when he hit a speed bump and lost control of the car, which ultimately flipped over and landed upside down in a body of water adjoining the road. The accidental death and dismemberment insurance policy obtained from defendant Life Insurance Company of North America (LINA) by the plaintiff via his employer paid benefits for a “Covered Accident,” defined as “[a] sudden, unforeseeable, external event that results, directly and independently of all other causes.”
Reviewing de novo, the panel held that to determine whether the son’s death was the result of an “accident” under the policy, it must apply the Padfield test, an “overlapping subjective and objective inquiry.” The panel concluded that, under this test, there was insufficient evidence in the administrative record to determine the son’s subjective expectation at the time he died. Proceeding to the objective inquiry, the panel declined to consider for the first time on appeal LINA’s argument that because the policy defined the term “accident” as “a sudden, unforeseeable, external event,” the district court should have asked whether the son’s death was “reasonably foreseeable” rather than applying the Padfield test by asking whether his death was “substantially certain.” Declining to apply an exception for purely legal issues, the panel concluded that the plaintiff would be unduly prejudiced by the belated application of a “reasonably foreseeable” test because not only did LINA fail to raise the argument below, but it also did not use that test when initially denying the plaintiff’s insurance claim. The panel held that, under the Padfield test, the son’s death was an “accident” because, while the facts demonstrated that the son engaged in reckless conduct, the record did not show that his death was “substantially certain” to result from that conduct. Accordingly, the district court correctly determined that the son’s death was covered under the insurance policy.
Concurring, Judge Ikuta stated that she wrote separately to emphasize that the panel’s opinion applied the definition of an “accident” set forth in Padfield v. AIG Life Ins. Co., 290 F.3d 1121 (9th Cir. 2002), only because LINA relied on Padfield and forfeited its argument the insurance policy’s own definition of “accident” applied
Ho v. Russi (9th Cir. 20-55915 8/19/22) ADA/Supplemental Jurisdiction
The panel reversed the district court’s order declining, in an action under the Americans with Disabilities Act, to exercise supplemental jurisdiction under 28 U.S.C. § 1367(c) over plaintiff’s state law claim under California’s Unruh Civil Rights Act, and remanded for further proceedings. The panel held that the district court erred in sua sponte declining supplemental jurisdiction without providing plaintiff with notice of its intent to dismiss or an opportunity to respond. This was error because plaintiff was entitled to argue his claim prior to dismissal. The panel addressed an award of attorney’s fees in a separate memorandum disposition.
Technology Credit Union v. Rafat (CA6 H049471 8/17/220 Workplace Violence Restraining Order
Appellant Matthew Mehdi Rafat challenges a workplace violence restraining order (WVRO) (Code Civ. Proc., § 527.8) issued against him at the request of respondent Technology Credit Union (TCU) to protect TCU’s employee, M.L. Rafat asserts that the WVRO must be reversed because there was no evidence that he made a credible threat of violence against M.L., as required to support a WVRO. (See § 527.8, subds. (a), (b)(2).) We agree that the evidence is insufficient to show that Rafat made a credible threat of violence, and we therefore reverse the WVRO.
Bill Signed by Governor (8/15/22)
SB 874 by Senator Dave Cortese (D-San Jose) – Classified school district and community college employees: probation: promotion.
NLRB v. Ampersand Publishing (9th Cir. 21-71060 8/11/22) NLRB/Enforcement of Compliance Order
The panel granted the National Labor Relations Board’s petition for enforcement of its compliance order requiring an employer to reimburse a union for legal fees incurred during the collective bargaining process.
The Board found that the employer engaged in unusually aggravated misconduct sufficient to warrant more than a traditional remedy, and ordered the employer to reimburse the union for the costs and expenses the union incurred during collective bargaining sessions. On appeal, the D.C. Circuit upheld the Board’s findings and enforced its orders in full. The parties could not reach an agreement on the total amount the employer should be required to pay in remedies, and in July 2018, the Regional Director for NLRB Region 27 issued a compliance specification detailing how much the employer owed. After the employer responded to the specification, the Board granted the Board’s General Counsel’s motion for partial summary judgment. On remand, an administrative law judge granted the full amount of claimed costs and expenses incurred by the union during bargaining. The Board applied to this court for enforcement of its compliance order.
The union incurred legal fees for consultations with its outside counsel during contract negotiations, and the Regional Director included those fees in the compliance order as part of the bargaining expenses for which the employer was required to reimburse the union. The panel rejected the employer’s argument that D.C. Circuit precedent established that the Board lacked power to order the reimbursement of legal fees. The panel held that the D.C. Circuit’s opinions were specifically limited to the context of litigation, and they did not bar the award at issue here. The National Labor Relations Act grants the Board broad discretion to impose remedies for unfair labor practices. The panel held that the award of legal fees in this case was exactly the sort of remedy that courts have upheld as within the Board’s statutory remedial authority. Prior adjudications established that the employer committed an unfair labor practice by refusing to bargain with the union in good faith. The remedy was directly targeted at the employer’s violation. Notably, the Board’s compliance order included only those legal fees incurred during collective bargaining. The bargaining process involved only the employer and the union, with no active participation by Board officials. The fact that attorney Ira L. Gottlieb was a lawyer who at time represented the union in litigation before the Board did not mean that his fees incurred in the collective bargaining process must automatically be considered litigation expenses, without any consideration of the actual work he was paid to perform.
The panel concurrently filed a memorandum disposition rejecting the employer’s remaining objections to the compliance order.
Spletstoser v. Hyten (9th Cir. 20-56180 8/11/22) Army Sexual Assault/Federal Torts Claim Act/Feres Doctrine
The panel affirmed the district court’s decision denying former United States Air Force General John Hyten and the United States Government’s motion to dismiss former United States Army Colonel Kathryn Spletstoser’s first amended complaint alleging that Hyten sexually assaulted her.
The Federal Tort Claims Act (“FTCA”) created a broad waiver of the federal government’s sovereign immunity.
The district court concluded that the doctrine established in Feres v. United States, 340 U.S. 135, 146 (1950) (holding that “the Government is not liable under the [FTCA] for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service”), did not bar plaintiff’s claims because the “alleged sexual assault [could] not conceivably serve any military purpose.”
The panel applied the factors developed in Johnson v. United States, 704 F.2d 1431, 1436-39 (9th Cir. 1983), and held that the Feres doctrine did not bar the claims raised by plaintiff at this stage of the proceedings. The panel initially emphasized that this case involved an allegation of sexual assault, and that this case was before the court on a motion to dismiss where the court must assume the truth of the allegations as pled. Sexual assault is a grievous violation of bodily integrity and one of the most egregious intentional torts.
Concerning the first Johnson factor—the place where the tortious act occurred—the panel held that the factor weighed against application of the Feres doctrine. The alleged sexual assault occurred at a hotel in California. The hotel was equally open to members of the military and non-military, and the military was not responsible in any way for the operations or security of the hotel.
The second Johnson factor is the duty status when the tortious act occurred. Plaintiff acknowledged that she was on active-duty status, but emphasized that the incident occurred during her personal time. The incident occurred as plaintiff was preparing for bed in her private hotel room, where she was not expecting any visitors. The panel held that these facts weighed against application of the Feres doctrine.
The third Johnson factor is the benefits accrued due to status as a service member. Analysis of this factor centers around whether a service member has access to an on-base or government-sponsored activity, event, or service, to the exclusion of the civilian public. Plaintiff did not have access to her hotel room solely because of her status as a military service member—any civilian could have booked the room. Although plaintiff and Hyten were attending a forum on behalf of a government agency, plaintiff was preparing for bed in a private hotel room where the incident occurred. The panel held that these facts weighed strongly against application of the Feres doctrine.
The fourth Johnson factor is the nature of the activities when the tortious act occurred. The panel held that this factor weighed heavily in plaintiff’s favor. It is unimaginable that plaintiff would have been “under orders” to submit to Hyten’s sexual advances, or that she was performing any sort of military mission in conjunction with the alleged assault. Rather, plaintiff, like the plaintiffs in Johnson, stood in exactly the same position as a civilian. The asserted tortious act (sexual assault) did not involve a close military judgment call, did not further any conceivable military purpose, and could not be considered incident to military service.
After considering the Johnson factors and other cases analyzing the Feres doctrine, the panel agreed with the district court that plaintiff’s action was not barred by the Feres doctrine at this stage, and therefore the motion to dismiss was properly denied.
Flower World, Inc. v. Sacks (9th Cir. 21-35641 8/11/22) COVID-19/OSHA Preemption
The panel affirmed the district court’s dismissal of a complaint for failure to state a claim and held that certain mandates issued by the Governor of Washington to address the public health crisis caused by the spread of coronavirus (COVID-19) were not preempted by the Occupational Safety and Health Act.
In May 2020, the Governor issued Proclamation 20-57, “Concerning the Health of Agricultural Workers,” and an addendum, “Agricultural COVID-19 Requirements” (collectively, the “Proclamation”). The Proclamation acknowledged the hazards posed by “the worldwide spread of COVID-19” and prohibited “any agricultural employer from continuing to operate beyond June 3, 2020, unless the employer complied with all provisions of the Agriculture COVID-19 Requirements – Provisions for All Worksites and Work-Related Functions.”
The panel first held that plaintiff’s challenge to the Proclamation was ripe for review because Washington’s Department of Labor & Industries’ Division of Occupational Safety and Health had issued a citation to plaintiff for violation of the requirements set forth in the Proclamation and imposed a $4,200 fine that had to be paid within fifteen working days. There was nothing speculative about this enforcement action.
The panel held that the Proclamation was not preempted because the requirements in the Proclamation did not relate to an occupational health and safety standard promulgated by the Occupational Safety and Health Administration (OSHA). In light of the Supreme Court’s reasoning in NFIB v. OSHA, 142 S. Ct. 661 (2021), OSHA lacked the authority to promulgate a public health measure that would regulate the general risk of COVID-19 in the workplace. Because OSHA could not promulgate such a federal standard, none of its existing regulatory standards could preempt a state’s general public health and safety measures addressing the threats posed by COVID-19. Rejecting OSHA’s broad interpretation of its existing regulations as applying generally to COVID hazards in the workplace, the panel construed the regulations cited by plaintiff as addressing specific occupational hazards caused by workplace processes that result in pollution at the workplace, not the hazard of COVID-19 or other viruses more generally. Accordingly, the panel held that the Proclamation was not preempted by the Occupational Safety and Health Act.
Kennedy v. Bremerton School District (9th Cir. 20-35222 ord. on rem. 8/8/22) First Amendment/Title VII
On June 27, 2022, the Supreme Court issued its opinion in this case, reversing our prior judgment in Kennedy v. Bremerton Sch. Dist., 991 F.3d 1004 (9th Cir. 2021). See Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407 (2022). Therefore, we VACATE the district court’s grant of summary judgment in favor of defendant and REMAND for further proceedings consistent with the Supreme Court’s opinion. This order shall act as and for the mandate of this court.
IT IS SO ORDERED.
Depart. of Fair Employment and Housing v. Cisco Systems, Inc. (CA6 H048910 8/5/22) DFEH/Arbitration
The issue in this case is whether the Department of Fair Employment and Housing can be compelled to arbitrate an employment discrimination lawsuit when the affected employee agreed to resolve disputes with the employer through arbitration. We conclude the Department cannot be required to arbitrate in that situation because it did not agree to do so. We will therefore affirm the denial of the employer’s motion to compel arbitration.
Depart. of Fair Employment and Housing v. Super. Ct. (CA6 H048962 8/5/22) DFEH/Real Party in Interest
When a party to a civil action asks to proceed under a fictitious name, the trial court must determine whether that party’s privacy concerns outweigh the First Amendment right of public access to court proceedings. In this employment discrimination suit by the Department of Fair Employment and Housing, the Department asked that the real party in interest—the affected employee—be referred to as John Doe, in part because revealing his identity could jeopardize the safety of his family members in India. The trial court denied the request, deciding that the safety of a party’s family members outside California cannot be considered when weighing the competing interests in privacy versus public access. We conclude evidence of potential harm to family members anywhere is a legitimate consideration in determining whether a party should be granted anonymity in litigation. We will issue a writ of mandate directing the trial court to vacate its order and reconsider the issue.
Brennon B. v. Super. Ct. (SC S266254 8/4/22) Unruh Civil Rights Act/Public Schools
Brennon B. is a young man with developmental disabilities; when he was a teenager, he was a special-education student at De Anza High School in the West Contra Costa Unified School District (the District). Brennon alleges that during his time there, he was repeatedly sexually assaulted by other students and by a school-district staff member. In 2016, his guardian sued the District on his behalf, asserting various claims arising out of Brennon’s experiences at De Anza High School; those claims included allegations the District had violated the Unruh Civil Rights Act (Civ. Code, § 51; the Unruh Civil Rights Act or the Act).
The question before us is whether a plaintiff who asserts such claims can hold a public school district liable under the Act and thus avail him- or herself of the enhanced remedies — particularly statutory penalties and attorney fees — it makes available. For the reasons set forth below, we hold that Unruh Civil Rights Act liability is not available in such circumstances. Accordingly, the judgment of the Court of Appeal denying Brennon’s petition for writ of mandate is affirmed.
The statutory text of the Act, its purpose and history, and our prior caselaw all indicate that public schools, as governmental entities engaged in the provision of a free and public education, are not “business establishments” within the meaning of the Act. (Civ. Code, § 51, subd. (b).) To the contrary, they make clear that the Act was not enacted to reach this type of state action. Accordingly, we conclude that the District was not a “business establishment” for purposes of the Unruh Civil Rights Act under the circumstances alleged here.
We must also reject Brennon’s alternative argument that he can nonetheless avail himself of the Act’s enhanced remedies either because of a 1992 amendment to the Unruh Civil Rights Act or because of a 1998 amendment to the Education Code. First, Brennon contends that public school districts can be sued under the Unruh Civil Rights Act because violations of the federal Americans with Disabilities Act (the ADA) were made actionable pursuant to the 1992 amendment. This contention is foreclosed by the language and legislative history of the 1992 amendment, which contains no indication that incorporation of the ADA was intended to broaden the reach of the Unruh Civil Rights Act in the way Brennon contends. The argument is also at odds with our prior decisions and in tension with the structure of other antidiscrimination statutes. Second, there is nothing in the language or legislative history of the 1998 Education Code amendment to suggest that it entitles Brennon to relief under the Unruh Civil Rights Act. We do not believe the Legislature — in either instance — would have made such a significant change to the scope of the Act without clear language in the statutory text and without any discussion of such a change in the legislative history.
As we have done previously, “[w]e emphasize . . . that our resolution of the legal issue[s] before us does not turn upon our personal views as to the wisdom or morality of the [laws and policies at issue in this case]. Instead, our task involves . . . question[s] of statutory interpretation.” (Warfield v. Peninsula Golf & Country Club (1995) 10 Cal.4th 594, 598 (Warfield); see also Curran v. Mount Diablo Council of the Boy Scouts (1998) 17 Cal.4th 670, 672 (Curran) [similar].) Discrimination in schools is pernicious, and its elimination requires the availability of legal tools that are both practical and powerful. At the same time — through the Education Code, the antidiscrimination components of the Government Code, and various other constitutional and statutory provisions — the Legislature has enacted laws that prohibit discrimination and make remedies available to those whose rights have been violated. (See, e.g., Ed. Code, § 200 et seq.; Gov. Code, § 11135; 42 U.S.C. § 1983; 20 U.S.C. § 1681 et seq.; 42 U.S.C. § 12131 et seq.)
The dispute here is not about whether Brennon and other plaintiffs who prove discrimination are entitled to relief — they clearly are. (See Brennon B. v. Superior Court (2020) 57 Cal.App.5th 367, 370 (Brennon B.) [discussing antidiscrimination laws to which public school districts are subject].) This case is about whether Brennon and other putative plaintiffs are entitled to pursue the specific remedies made available under the Unruh Civil Rights Act. Brennon and supporting amici curiae argue that the availability of such relief is important because it entitles successful plaintiffs to statutory penalties for each and every discriminatory offense — up to a maximum of three times the amount of actual damage and in no case less than $4,000. It would also entitle plaintiffs to attorney fees, which, in matters of this degree of complexity, can be considerable. Brennon and several amici curiae also argue that these heightened penalties are — for policy reasons — the most effective means of vindicating the rights of disabled students in California. They assert that these remedies encourage disabled people to assert their rights, deter institutions from engaging in discrimination, and help to incentivize lawyers to litigate discrimination claims. In response, the District and its supporting amici curiae assert that subjecting public school districts to the heightened remedies made available by the Act would — in light of school districts’ already strained and limited budgets — undermine districts’ ability to deliver high quality education for their students. The District also underscores that, even without Unruh Civil Rights Act protection, there are many other statutes prohibiting discrimination that enable students to obtain appropriate relief.
Again, the policy question of whether to make the Act’s enhanced remedies available in this context, and how to weigh the various competing interests at stake, is a decision that only the Legislature can make. The task before us today is one of statutory interpretation.
Martinez v. Cot'n Wash, Inc. (CA2/1 B314476 8/1/22) Unruh Civil Rights Act/Website Accessibility
Alejandro Martinez, as successor in interest to his brother Abelardo Martinez, Jr., seeks reversal of a judgment of dismissal following the successful demurrer of Cot’n Wash, Inc. (CW) to a complaint against CW alleging a single violation of the Unruh Civil Rights Act (Civ. Code, § 51 et seq.) (the Unruh Act). The operative complaint alleged CW violated the Unruh Act by intentionally maintaining a retail website that was inaccessible to the visually impaired because it was not fully compatible with screen reading software. On appeal, Martinez argues that the trial court erred in concluding (1) the alleged inaccessibility of CW’s website did not violate the Americans with Disabilities Act (42 U.S.C. § 12111 et seq.) (the ADA), specifically Title III of the ADA (42 U.S.C. §§ 12181−12189) (Title III) and (2) the complaint did not allege sufficient facts to establish CW’s discriminatory intent, which the Unruh Act requires in the absence of an ADA violation.
We hold that the trial court was correct on both points. As to intentional discrimination, the California Supreme Court has held that the discriminatory effect of a facially neutral policy or action is not alone a basis for inferring intentional discrimination under the Unruh Act. (See Koebke v. Bernardo Heights Country Club (2005) 36 Cal.4th 824, 854 (Koebke).) It follows that we cannot infer intentional discrimination from Martinez’s alleged facts that he made CW aware of the discriminatory effect of CW’s facially neutral website, and that CW did not ameliorate these effects.
As to the ADA violation theory, Martinez has not alleged, as he must in order for Title III of the ADA to apply, that CW’s website constitutes a “place of public accommodation.” (42 U.S.C. § 12182(a).) Under current law, we cannot read this phrase as including retail websites without any connection to a physical space. The statutory language does not include a category that encompasses such websites, and Congress has chosen not to amend the ADA to clarify whether and under what circumstances a website can constitute a “place of public accommodation”—despite Congress recognizing over 20 years ago the lack of clarity on this point and the resulting federal circuit split that persists today. We cannot rely, as Martinez encourages us to, on the policy goals of the ADA as a basis for ignoring the plain language of the statute and doing what Congress has for decades declined to do. Nor do we find persuasive that the United States Department of Justice (DOJ), the regulatory agency charged with implementing the ADA, has unofficially endorsed a view that all retail websites constitute “place[s] of public accommodation” for purposes of the ADA. Regardless of what the DOJ has said in amicus briefs, it has opted not to issue any regulations or formal guidance to this effect, even after repeated requests from Congress that the DOJ do so. This weighs against, not in favor, of Martinez’s proposed interpretation.
We do not disagree that facilitating access to retail websites would serve the goals of the ADA. Nonetheless, compatibility with the goals of legislation is not the only consideration in interpreting it. We cannot ignore the canons of statutory interpretation to achieve the goal Martinez identifies. Nor may we act to expand the scope of a law when Congress has chosen not to do so.
Accordingly, we affirm the judgment of dismissal.
Essick v. County of Sonoma (CA1/4 A162887A, filed 6/29/22, unsealed 7/29/22) Release of Workplace Investigation Report/CA Public Records Act
Following the submission to the County of Sonoma (the County) of a harassment complaint against Mark Essick, the elected sheriff of the County, an independent investigator, Ms. Amy Oppenheimer, conducted an inquiry and prepared a written report. A local newspaper requested that the County release the complaint, the report, and various related documents (collectively, the Oppenheimer Report) pursuant to the California Public Records Act (CPRA) (Gov. Code, § 6250 et seq.). Sheriff Essick objected to the County’s release of the Oppenheimer Report. In this “reverse” CPRA action, the trial court denied his request for a preliminary injunction barring the Oppenheimer Report’s release.
Sheriff Essick appeals, contending the trial court erred because (1) the Oppenheimer Report should be classified as confidential under an exemption to the CPRA (Gov. Code, § 6254, subd. (k)), either as a “peace officer” “personnel record” (Pen. Code, §§ 832.7, subd. (a), 832.8, subd. (a)) or because it constitutes a “report or findings” relating to a complaint by a member of the public against a peace officer (Pen. Code, §§ 832.5, subd. (b), 832.7, subd. (a)); and (2) the County should be estopped to release the Oppenheimer Report because it promised him that, in conducting its investigation, it would abide by Government Code section 3300 et seq. (the Public Safety Officers Procedural Bill of Rights Act) (POBRA), and it therefore should be bound to keep the results of the investigation confidential. We disagree on both points and will affirm.
Callahan v. Brookdale Senior Living Cmties. (9th Cir. 20-55603 7/29/22) PAGA Intervention
The panel amended its opinion filed on June 29, 2022, affirmed the district court’s denial of Mishelle Neverson’s motion to intervene, and dismissed Neverson’s appeal of the district court’s approval of the Private Attorneys General Act (“PAGA”) settlement between Carolyn Callahan and her former employer, Brookdale Senior Living Communities, Inc.
Callahan brought the action pursuant to California’s PAGA, California Labor Code sections 2698-2699.5, which allows aggrieved employees to recover civil penalties for Labor Code violations on behalf of themselves, the state, or other employees. Callahan and Brookdale agreed to a settlement. Neverson, who was a plaintiff in an overlapping PAGA case against Brookdale, filed a motion to intervene in Callahan’s action to object to the PAGA settlement.
The panel held that Neverson was not a party to Callahan’s case and could not appeal the approval of the PAGA settlement.
The panel first considered whether Neverson was entitled to intervene in Callahan’s case as a matter of right under Fed. R. Civ. P. 24(a)(2). The panel held that Neverson’s motion for intervention as a matter of right failed at the fourth and final prong of the Wilderness Society v. U.S. Forest Serv., 630 F.3d 1173, 1177 (9th Cir. 2011), test, which requires that an applicant’s interest must be inadequately represented by the parties to the action. Here, Neverson and Callahan had the same interest in this litigation: to obtain civil penalties on behalf of the California Labor & Workforce Development Agency (“LWDA”) under PAGA. Given this identity of interest, Neverson needed to make a compelling showing to demonstrate inadequate representation. The panel concluded she failed to make this required showing. Accordingly, the panel affirmed the district court’s denial of Neverson’s motion to intervene as of right.
The panel next considered whether the district court abused its discretion in denying Neverson permissive intervention under Fed. R. Civ. P. 24(b). The district court held that the discretionary factors governing permissive intervention pointed strongly against intervention: both Callahan and Neverson are deputized agents of the LWDA who assert the interests of the LWDA, and allowing Neverson to intervene would not significantly contribute to the factual development of issues in the case. The panel concluded that the district court did not err in denying Neverson permissive intervention, and affirmed the denial of Neverson’s motion to intervene.
Because Neverson’s motion to intervene was properly denied, she never became a party to the PAGA action. As a non-party to this action, Neverson had no right to appeal the district court’s approval of the PAGA settlement. The panel dismissed her appeal of the settlement approval, and did not consider whether the district court abused its discretion in approving the settlement.
Nat’l Railroad Passenger Corp. v. Julie Su (9th Cir. 21-15816 7/26/22) Railroad Unemployment Insurance Act/Preemption
Affirming the district court’s summary judgment in favor of National Railroad Passenger Corporation and other railroad companies, the panel held that, as to railroad employees, the federal Railroad Unemployment Insurance Act preempts California’s Healthy Workplaces, Healthy Families Act, which requires employers to provide employees with paid sick leave that they may use for specified purposes.
RUIA provides unemployment and sickness benefits to railroad employees, and it contains an express preemption provision disallowing railroad employees from having any right to “sickness benefits under a sickness law of any State.” Looking to the plain meaning of the statutory text, the panel concluded that the preemption provision broadly refers to compensation or other assistance provided to employees in connection with physical or mental well-being. The panel concluded that RUIA’s statutory framework and stated purposes confirm the breadth of its preemptive effect.
The panel held that, as applied to railroad employees, the California Act falls within RUIA’s preemption clause because, properly considered in light of RUIA’s plain text and structure, the California Act is a “sickness law” that provides “sickness benefits.”
Agreeing with the First Circuit, the panel found unpersuasive an argument by the California Labor Commissioner and union-intervenors that RUIA does not preempt the California Act as to railroad employees because the benefits the Act offers are different in kind than RUIA’s benefits. The panel also found unpersuasive (1) an argument that RUIA should be interpreted as preempting only the kinds of state laws that existed at the time RUIA was amended to provide for sickness benefits; and (2) various textual arguments in support of a narrower interpretation of the preemption provision.
Gallo v. Wood Ranch USA, Inc. (CA2/2 B311067 7/25/22) CA Arbitration Fees Statute/FAA Preemption
Perceiving that employees and consumers were being placed in a “procedural limbo” when they were forced to sign arbitration agreements by entities who subsequently refused to pay the necessary fees to allow the arbitrations to move forward, the California Legislature enacted Code of Civil Procedure sections 1281.97, 1281.98 and 1281.99. (Stats. 2019, ch. 870, § 4; Assem. Floor Analysis, 3d reading analysis of Sen. Bill No. 707 (2019-2020 Reg. Sess.) as amended May 20, 2019, p. 2.) These provisions obligate a company or business who drafts an arbitration agreement to pay its share of arbitration fees by no later than 30 days after the date they are due, and specify that the failure to do so constitutes a “material breach of the arbitration agreement” that gives the employee or consumer, in addition to a mandatory award of attorney fees and costs related to the breach as well as other discretionary sanctions, the options of either (1) continuing in arbitration with the company or business paying attorney fees and costs related to the arbitration as a whole or (2) withdrawing from arbitration and resuming the litigation in a judicial forum. (§§ 1281.97, 1281.98, 1281.99.) This appeal presents a question of first impression: Are these provisions preempted by the Federal Arbitration Act (FAA) (9 U.S.C. § 1 et seq.)? We hold that they are not because the procedures they prescribe further—rather than frustrate—the objectives of the FAA to honor the parties’ intent to arbitrate and to preserve arbitration as a speedy and effective alternative forum for resolving disputes. We accordingly affirm the trial court’s order vacating its earlier order compelling arbitration between the parties in this case.
Mull v. Motion Picture Industry Health Plan (9th Cir. 20-56315 7/25/22) ERISA
The panel reversed the district court’s summary judgment in favor of plaintiffs in an action against the Motion Picture Industry Health Plan and the Plan’s Board of Directors, alleging violation of the Employee Retirement Income Security Act of 1974, and remanded with instructions for the district court to enter summary judgment in favor of the Plan.
Plaintiff Norman Mull was a participant in the Plan. After his daughter, a covered dependent, was injured in a car accident, the Plan paid benefits to cover a portion of her medical expenses. Under the Plan’s terms, Mull was liable to the Plan for the reimbursement of these benefits if the daughter recovered money from the third party who caused her injuries. Although the daughter obtained such a recovery, she dissipated her settlement funds without reimbursing the Plan, and Mull did not pay the reimbursement amount himself. Invoking a self-help provision in the Plan’s terms, the Plan stopped making benefit payments to Mull and his covered dependents to recoup its unreimbursed payments. Plaintiffs brought this action to recover the benefits withheld by the Plan and to force the Plan to make benefit payments for covered services in the future. The district court granted summary judgment in favor of plaintiffs, concluding that the Plan could not enforce its self-help remedy.
Reversing, the panel concluded that contractual defenses could not defeat the clear and unambiguous terms setting forth the Plan’s self-help remedy. Assuming without deciding that plaintiffs could invoke the equitable doctrines of illegality, impossibility of performance, and unconscionability, the panel concluded that these defenses could not override the terms of the Plan under the facts in this case.
The panel held the requirements for establishing a fiduciary’s claim for equitable relief under ERISA § 502(a)(3), including the existence of an identifiable fund in the possession and control of the person from whom recovery is sought, did not bar the Plan from exercising its self-help remedy as an alternative means of recouping its overpaid benefits. The panel explained that the Plan was not prosecuting an action for equitable relief under § 502(a)(3), but rather was a defendant in an action that plaintiffs themselves had brought to recover benefits and was using a self-help remedy that required no judicial enforcement.
Agreeing with other courts, the panel held that the Plan’s self-help remedy did not undermine ERISA’s civil enforcement scheme. Rather, ERISA plan fiduciaries may bargain for and implement self-help remedies that do not require judicial enforcement.
Finally, the panel held that res judicata did not bar the Plan’s use of its self-help remedy.
Howitson v. Evans Hotels (CA4/1 D078894 7/21/22) PAGA/Claim Preclusion
The Legislature enacted the Private Attorneys General Act of 2004 (Lab. Code, § 2698 et seq., (PAGA)) for the “sole purpose” of increasing the limited capability of the state to remedy violations of the Labor Code. (Kim v. Reins International California, Inc. (2020) 9 Cal.5th 73, 86 (Kim).) PAGA authorizes an “aggrieved employee” to file a lawsuit on behalf of the state seeking civil penalties for violations of the Labor Code, allocating 75 percent of the penalties recovered to the California Labor and Workforce Development Agency (LWDA), with the remaining 25 percent to all employees affected by the violation. (§ 2699, subd. (i).) Before filing suit, PAGA requires the plaintiff to submit a notice of the alleged violations to LWDA and the employer. (§ 2699.3, subd. (a).) LWDA then has 60 days to respond to the notice and if no response is forthcoming after 65 days, the plaintiff may commence a PAGA civil action. (Id., subd. (a)(2)(A).)
This case (1) involves the legal issue of whether an employee who settles individual claims against the employer for alleged Labor Code violations is subsequently barred by claim preclusion from bringing a PAGA enforcement action against the employer for the same Labor Code violations when, prior to settlement, the employee could have added the PAGA claims to the existing action; and (2) requires the application of claim preclusion principles.
As we explain, because the two actions involve different claims for different harms and because the state, against whom the defense is raised, was neither a party in the prior action nor in privity with the employee, we conclude the requirements for claim preclusion are not met in this case.
Seviour-Iloff v. LaPaille (CA1/1 A163503M, filed 6/28/22, mod. 7/21/22) Wage & Hour
It is ordered that the opinion filed herein on June 28, 2022, be modified as follows:
1. On page 24, at the end of the first full paragraph, after the sentence that ends with “the additional penalty of liquidated damages,” add as footnote 13, the following footnote, which will require renumbering of all subsequent footnotes:
13 We conclude this analysis applies equally to both plaintiffs despite defendants’ prior concession that Elsie was an employee.
There is no change in the judgment.
Appellants’ petition for rehearing is denied.
Love v. Marriott Hotel Services, --- F.4th ----, 2022 WL 2899267 (9th Cir. July 22, 2022) ADA/Website/Reservation Rule
The panel affirmed the district court’s dismissal, for failure to state a claim, of an action under Title III of the Americans with Disabilities Act, alleging that a hotel’s reservation website failed to comply with the “Reservations Rule,” 28 C.F.R. § 35.302(e)(1), which regulates the accessibility information that hotels must post on their online booking sites. Addressing “Auer deference” to an agency’s construction of its own regulation, the panel concluded that the Reservations Rule was ambiguous in its directive that hotels "[i]dentify and describe accessible features” in “enough detail to reasonably permit individuals with disabilities to assess independently” whether the hotel’s offerings suit their needs. To resolve that ambiguity, the panel deferred to the Department of Justice’s sound and reasonable interpretation of that rule (the “DOJ Guidance”), published in an appendix to the Code of Federal Regulations. The panel concluded that the defendant’s website satisfied the DOJ Guidance and thus the Reservations Rule, which contains different requirements depending on the age of a building. The panel concluded that this distinction did not matter here because defendant’s website passed muster under either set of requirements.
Meda v. Autozone (CA2/3 B311398 7/19/22) Suitable Seating for Employees
In California, an employee is entitled to use a seat while working if the nature of the work reasonably permits the use of a seat. An employer is required, in that circumstance, to provide the employee with a suitable seat.
Plaintiff and appellant Monica Meda (plaintiff) worked as a sales associate for about six months at an AutoZone auto parts store (store) operated by defendant and respondent AutoZoners, a Limited Liability Company (AutoZoners). After she resigned from her position, plaintiff filed the present suit asserting one claim under the Labor Code Private Attorneys General Act of 2004 (Lab. Code, § 2699 et seq.) (PAGA). She asserts AutoZoners failed to provide suitable seating to employees at the cashier and parts counter workstations, as to which some or all of the work required could be performed while sitting.
AutoZoners moved for summary judgment, arguing plaintiff lacked standing to bring a representative action under PAGA because she was not aggrieved by AutoZoners’s seating policy. Specifically, AutoZoners contends it satisfied the seating requirement by making two chairs available to its associates. The chairs were not placed at the cashier or parts counter workstations but were in, or just outside, the manager’s office. In opposition to the summary judgment motion, plaintiff contended AutoZoners did not “provide” seating as required because no one told her chairs were available for use at the front counter workstations, she never saw anyone else use a chair at those workstations, and she was only given the option to use a chair as an accommodation after an on-the-job injury. The trial court agreed with AutoZoners, granted the motion, and entered judgment accordingly. Plaintiff appeals.
No published California authority has considered what steps should be taken by an employer to “provide” suitable seating within the meaning of the wage order seating requirement. We conclude that where an employer has not expressly advised its employees that they may use a seat during their work and has not provided a seat at a workstation, the inquiry as to whether an employer has “provided” suitable seating may be fact-intensive and may involve a multitude of job- and workplace-specific factors. Accordingly, resolution of the issue at the summary judgment stage may be inappropriate, as it was here. Because the undisputed facts create a triable issue of material fact as to whether AutoZoners “provided” suitable seating to its customer service employees at the front of the store by placing seats at other workstations in a separate area of the store, we conclude the court erred in granting the motion for summary judgment. Accordingly, we reverse.
Bills Signed and Vetoed by Governor (7/19/22)
AB 1661 by Assemblymember Laurie Davies (R-Laguna Niguel) – Human trafficking: notice.
AB 1805 by Assemblymember Steven Choi (R-Irvine) – Unemployment: online information: Federal Unemployment Tax Act tax credit.
AB 1854 by Assemblymember Tasha Boerner Horvath (D-Encinitas) – Unemployment insurance: work sharing plans.
AB 1876 by Assemblymember Kelly Seyarto (R-Murrieta) – Substitute teachers: emergency career substitute teaching permit: employment verification.
AB 2129 by Assemblymember Wendy Carrillo (D-Los Angeles) – Employment Development Department: recession plan.
AB 2148 by Assemblymember Lisa Calderon (D-Whittier) – Workers’ compensation: disability payments.
AB 2173 by Assemblymember Cottie Petrie-Norris (D-Laguna Beach) – Public contracts: payment.
Evenskaas v. California Transit, Inc. (CA2/7 B308354 7/15/22) Paratransit Services/FAA
The Americans with Disabilities Act of 1990 (ADA) (42 U.S.C. § 12101 et seq.) requires any public entity that operates a public transportation system to provide certain paratransit services to individuals with disabilities. (See id., § 12143.) Access Incorporated Services (not a party to this action) is the public entity that administers paratransit services required by the ADA in Los Angeles County. Access, in turn, contracts with California Transit, Inc. to provide those paratransit services in parts of the county.
David Evenskaas worked as a driver for California Transit. After California Transit terminated his employment, Evenskaas filed this wage and hour class action against California Transit; its owner, Timmy Mardirossian; and the company that administered California Transit’s payroll, Personnel Staffing Group, LLC (collectively, the California Transit defendants). Because Evenskaas signed an arbitration agreement, in which he agreed to arbitrate all claims arising from his employment and waived his right to seek class-wide relief, the California Transit defendants filed a motion to compel arbitration.
The trial court denied the motion. The court ruled California law, rather than the Federal Arbitration Act (FAA) (9 U.S.C. § 1 et seq.), applied to the agreement because the agreement did not involve interstate commerce. The court further ruled that, under the California Supreme Court’s decision in Gentry v. Superior Court (2007) 42 Cal.4th 443 (Gentry), Evenskaas’s waiver of his right to bring class action claims was unenforceable.
The California Transit defendants appeal, contending the FAA applies to the arbitration agreement. They are correct. Because the paratransit services California Transit hired Evenskaas to provide involve interstate commerce for purposes of the FAA, the FAA applies to the arbitration agreement and preempts the Gentry rule that certain class action waivers in employment arbitration agreements are unenforceable. Therefore, we reverse.