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Vaquero v. Stoneledge Furniture (CA2/7 B269657M, filed 2/28/17, mod. 3/20/17) Employees Paid on Commission/Wage and Hour


The opinion filed February 28, 2017 and certified for publication is modified as follows:


            1.  On page 14, in the first paragraph, after the first full sentence ending with the words “minimum hourly wage for such time,” add as footnote 8 the following, which will require renumbering subsequent footnotes:


8/ This case does not involve, and we have no occasion to question, the propriety of compensation plans that pay non-exempt employees a salary that compensates them for rest periods and other non-productive work time.


            2.  On page 15, in the second sentence of the first full paragraph, on lines 7 and 8, the words “separately account” are deleted and replaced with the words “provide compensation.”  As modified, the sentence reads:


            We conclude, however, that Wage Order No. 7 applies equally to commissioned employees, employees paid by piece rate, or any other compensation system that does not provide compensation for rest breaks and other nonproductive time.


This order does not change the judgment.


Syed v. M-I, LLC (9th Cir. 14-17186, filed 1/20/17, amended & en banc rehg. den. 3/20/17) Fair Credit Reporting Act


The panel filed: (1) an order amending its opinion and denying petitions for panel rehearing and rehearing en banc; and (2) an amended opinion reversing the district court’s dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6) of an action under the Fair Credit Reporting Act.


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


Walent v. Com. On Professional Competence etc. (CA2/7 B266265, filed 2/21/17, pub. ord. 3/13/17) Reasonable Attorneys’ Fees/Education Code


Appellant Los Angeles Unified School District appeals an award of attorney’s fees to Respondent Nancie Walent, after her successful challenge of her dismissal from employment.  Although Appellant asserts the trial court erred in its determination of reasonable attorney’s fees, we find neither legal error nor an abuse of discretion in the trial court’s determination.  Accordingly, we affirm.


Atkins v. City of Los Angeles (CA2/7 B257890M, filed 2/14/17, mod. rehg. den.3/13/17) FEHA Disability & Failure to Accommodate/Speculative Damages


The opinion filed February 14, 2017 and certified for publication is modified as follows:


            1.  On page 63, in the first sentence of the first paragraph the word “ever” is deleted, and the words “until retirement” are inserted after Department before the end of the sentence.


As modified, the sentence reads:


            Although Smith opined on the value of the plaintiffs’ future economic damages, she provided or cited to no testimony, other evidence, or opinion on the likelihood that the plaintiffs would receive future earnings from the Department until retirement.


            2.  On page 66, the entire first paragraph including footnote 18 is deleted and replaced with the following two paragraphs:


“An expert’s opinion is only as good as the facts on which it is built.”  (Shiffer v. CBS Corp. (2015) 240 Cal.App.4th 246, 253.)  Here, there were no facts on which to build Smith’s opinion that the plaintiffs were entitled to recover future economic damages to retirement.  Even giving deference to the trial court’s ruling denying the City’s motion for a new trial and drawing all inferences in favor of it, the evidence is too speculative to lend support to the award of the plaintiffs’ future lost earnings until retirement.  (See Toscano, supra, 124 Cal.App.4th at pp. 695-696.) 


The City does not genuinely dispute that the plaintiffs are entitled to a reasonable, non-speculative award of future economic damages.  The City’s argument is that (assuming liability) the plaintiffs are not entitled to recover future lost earnings until retirement, not that they are not entitled to recover any future lost earnings at all.  Although there is evidence in the record from which the jury could have calculated a reasonable amount of future economic damages, it is not our role to say what that amount should be.  “‘The measure of damages suffered is a factual question and as such is a subject particularly within the province of the trier of fact.’”  (Behr v. Redmond (2011) 193 Cal.App.4th 517, 533; see also Bullock v. Philip Morris USA, Inc. (2008) 159 Cal.App.4th 655, 696 [remanding for a new trial limited to the amount of punitive damages because the Court of Appeal would not “substitute [its] own assessment of the appropriate amount of punitive damages for that of a jury (or a judge on a new trial motion)”].  We therefore reverse the trial court’s award of future economic damages and remand for a new trial on this limited issue.  (See Code Civ. Proc., § 657, subd. (5); cf. Piscitelli, supra, 87 Cal.App.4th at p. 990 [reversing the judgment without granting a new trial on damages because the reviewing court could distinguish between the reasonable and unreasonable portions of the jury’s award for future economic damages].)


This order does not change the judgment.  The City’s petition for rehearing is denied.


Walent v. Com. On Professional Competence etc. (CA2/7 B266265, filed 2/21/17, pub. ord. 3/13/17) Reasonable Attorneys’ Fees/Education Code


Appellant Los Angeles Unified School District appeals an award of attorney’s fees to Respondent Nancie Walent, after her successful challenge of her dismissal from employment.  Although Appellant asserts the trial court erred in its determination of reasonable attorney’s fees, we find neither legal error nor an abuse of discretion in the trial court’s determination.  Accordingly, we affirm.


Somers v. Digital Realty Trust (9th Cir. 15-17352 3/8/17) Dodd-Frank Act/Whistleblower


The panel affirmed the district court’s denial of the defendant’s motion to dismiss a whistleblower claim brought under the Dodd-Frank Act’s anti-retaliation provision.


Following the approach of the Second Circuit, rather than the Fifth Circuit, the panel held that, in using the term “whistleblower,” Congress did not intend to limit protections to those who disclose information to the Securities and Exchange Commission. Rather, the anti-retaliation provision also protects those who were fired after making internal disclosures of alleged unlawful activity under the Sarbanes-Oxley Act and other laws, rules, and regulations. The panel agreed with the Second Circuit that, even if the use of the word “whistleblower” in a last-minute addition to the anti-retaliation provision created uncertainty, an SEC regulation resolved any ambiguity, and was entitled to deference.


Dissenting, Judge Owens agreed with the Fifth Circuit. He wrote that King v. Burwell, 135 S. Ct. 2480 (2015) (holding that terms can have different operative consequences in different contexts), on which the majority and the Second Circuit relied in part, should be quarantined to the specific facts of that case.


Beck v. Stratton (CA2/4 B270826A, filed 2/14/17, pub. ord. 3/8/17) Wage and Hour/Attorneys’ Fees


The Labor Commissioner awarded respondent Anthony Stratton approximately $6,000 in unpaid wages and penalties against his former employer, appellant Thomas Beck.  Beck unsuccessfully appealed the award to the superior court under Labor Code section 98.2, subdivision (a).  Stratton then moved for attorney’s fees under Labor Code section 98.2, subdivision (c) 58 days later.  Beck opposed the motion as untimely, because Stratton filed it after the 30-day deadline applicable to fee motions in limited civil cases.  Stratton maintained the motion was timely because it was filed within the 60-day deadline applicable to fee motions in unlimited civil cases.  The superior court agreed with Stratton and awarded him $31,365 in attorney’s fees.


On appeal, Beck contends that the motion for attorney’s fees was untimely because the case was a limited civil case.  He further contends that, even if the motion was timely, the fee award was unreasonably high and unsupported by competent billing evidence.  We disagree with both arguments and affirm the judgment of the superior court.


Gateway Community Charters v. Spiess (CA3 C078677 3/8/17) Wage and Hour/Other Municipal Corporation


In this appeal, we are called upon to answer a novel question of statutory interpretation:  whether Gateway Community Charters (Gateway), a nonprofit public benefit corporation that operates charter schools, is an “other municipal corporation” for purposes of Labor Code section 220, subdivision (b) (hereafter section 220(b)), thereby exempting it from assessment of waiting time penalties described in section 203. We conclude it is not; therefore, we affirm the judgment of the trial court.


Betancourt v. Prudential Overall Supply (CA4/2 E064326 3/7/17) PAGA/Arbitration


Plaintiff and respondent Roberto Betancourt (Betancourt) sued defendant and appellant Prudential Overall Supply (Prudential).  Betancourt’s complaint sets forth one cause of action:  enforcement of the Labor Code under the Private Attorneys General Act (PAGA).  (Labor Code, § 2698.)   Prudential filed a motion to compel arbitration.   The trial court denied Prudential’s motion.  Prudential contends the trial court erred.  We affirm the judgment.


Flethez v. San Bernardino Co. Employees Retirement Assn. (SC S226779 3/2/17) Disability Retirement


In this action for a writ of mandamus, the superior court determined that San Bernardino County Employees Retirement Association (SBCERA) wrongfully denied Frank Flethez the correct starting date for his disability retirement allowance.  The court then awarded Flethez prejudgment interest under Civil Code section 3287, subdivision (a) (section 3287(a)) as part of his damages, to be retroactively calculated from the same starting date.   On appeal, SBCERA challenged only the calculation of the prejudgment interest award. 


The Court of Appeal agreed with SBCERA that the superior court had erred in its calculation of prejudgment interest and reversed the court’s judgment to the extent it awarded section 3287(a) interest on all of Flethez’s retroactive disability retirement benefits starting from the first date of those benefits — July 15, 2000.  In doing so, the Court of Appeal expressly disagreed with the reasoning of Austin v. Bd. of Retirement (1989) 209 Cal.App.3d 1528 (Austin).  We granted review to consider how prejudgment interest under section 3287(a) should be calculated when a retroactive award of service-connected disability retirement benefits under the County Employees Retirement Law of 1937 is ordered in an administrative mandamus proceeding. 


As we will explain, we agree with the Court of Appeal that the superior court erred in its award of prejudgment interest.


City of San Jose v. Super. Ct. (SC S218066 3/2/17) City Employee's Electronic Communications on Personal Account/Public Records Act


Here, we hold that when a city employee uses a personal account to communicate about the conduct of public business, the writings may be subject to disclosure under the California Public Records Act (CPRA or Act).   We overturn the contrary judgment of the Court of Appeal.


Wilson v. Cable News Network Inc. (CA2/1 S239686/B264944 review granted 3/1/17) Anti-SLAPP/Discrimination and Retaliation vs. First Amendment


Petition for review is granted. Further action in this matter is deferred pending consideration and disposition of a related issue in Park v. Board of Trustees of the California State University, S229728 (see Cal. Rules of Court, rule 8.512(d)(2)) [“Does Code of Civil Procedure section 425.16 authorize a court to strike a cause of action in which the plaintiff challenges only the validity of an action taken by a public entity in an "official proceeding authorized by law" (subd. (e) ) but does not seek relief against any participant in that proceeding based on his or her protected communications?], or pending further order of the court. Submission of additional briefing, pursuant to California Rules of Court, rule 8.520, is deferred pending further order of the court. The request for an order directing depublication of the opinion is denied. Votes: Cantil-Sakauye, C.J., Werdegar, Chin, Corrigan, Liu, Cuéllar and Kruger, JJ. Review granted/briefing deferred.



Court of Appeal Decision


Vaquero v. Stoneledge Furniture (CA2/7 B269657 2/28/17) Employees Paid on Commission/Wage and Hour


Are employees paid on commission entitled to separate compensation for rest periods mandated by state law?  If so, do employers who keep track of hours worked, including rest periods, violate this requirement by paying employees a guaranteed minimum hourly rate as an advance on commissions earned in later pay periods?  We answer both questions in the affirmative, and reverse the trial court’s ruling granting summary judgment in favor of the employer.


Lemke v. Sutter Roseville Medical Center (CA3 C078983, filed 2/9/17, part. pub. ord. 2/27/17) Retaliation/Failure to Prevent Retaliation/Defamation


In this appeal, Diana Lemke challenges the trial court’s granting of summary judgment in favor of respondents Sutter Roseville Medical Center, Peter V. Hull, M.D., Debbie Madding, and Julie Fralick (collectively Sutter Roseville).  Lemke was terminated from her employment as a registered nurse at Sutter Roseville after improper administration of narcotics to a patient and failure to properly monitor and document the patient’s condition.  In response, Lemke filed an action against Sutter Roseville in which she claimed retaliation for whistleblowing, disability discrimination, failure to accommodate a disability, failure to engage in an interactive process, retaliation, harassment, failure to prevent retaliation, and defamation.


On appeal, Lemke addresses only her causes of action for retaliation, failure to prevent retaliation, and defamation.  She contends (1) there is a triable issue of material fact as to whether Sutter Roseville’s stated reasons for terminating her employment were pretextual, (2) the same reasons establishing her claim for retaliation also compel reversal of the trial court’s dismissal of her claim for failure to prevent retaliation, (3) she presented sufficient evidence to demonstrate triable issues of material fact for her claim of defamation, and (4) the trial court erred in its evidentiary rulings related to the motion for summary judgment.


We conclude Lemke did not meet her burden to show Sutter Roseville’s stated reasons were merely a pretext for retaliating against her.  On this basis, we also determine the trial court properly dismissed her claim of failure to prevent retaliation.  As to her cause of action for defamation, we conclude Sutter Roseville’s statements were absolutely privileged because they were made in connection with its internal investigation and in an official proceeding before the California Board of Registered Nursing (Board).  Finally, Lemke has forfeited her claim of evidentiary error for lack of any record citations or analysis of prejudice.  Accordingly, we affirm.


Melamed v. Cedars-Sinai Medical Center (CA2/1 B263095 2/27/17) Peer Review/Anti-SLAPP


Dr. Hoomad Melamed (Plaintiff), a physician at Cedars-Sinai Medical Center, operated on a 12-year-old patient, causing complications requiring corrective surgery.  The hospital suspended Plaintiff, who requested a peer review hearing challenging the suspension.  Every level of administrative review upheld the suspension.  Plaintiff did not seek mandamus review of these decisions.  Plaintiff then filed suit against Cedars-Sinai Medical Center (Cedars), its medical staff, and the specific doctors involved in the summary suspension decision.  The hospital filed an anti-SLAPP motion, contending that Plaintiff’s claims arose out of a protected activity—the medical staff’s peer review process—and that Plaintiff could not show a probability of success on the merits.  The trial court granted the motion.


We affirm.


O'Neal v. Stanislaus County Employees' Retirement Assn. (CA5 F070605 2/23/17) County Retirement System


Appellants, Michael R. O’Neal, Rhonda Biesemeier, and Dennis J. Nasrawi, appeal from the trial court’s grant of summary judgment against them, as well as several related evidentiary rulings.  Appellants are members of the retirement system operated by respondent Stanislaus County Employees’ Retirement Association (StanCERA) through their retirement board (the board).  The intervener in this case, County of Stanislaus (County), is one of several employers required to fund the StanCERA retirement system.

In the aftermath of the recent recession, StanCERA implemented several changes to the actuarial calculations used to determine how to amortize unfunded liabilities within the system and chose to utilize so-called non-valuation funds, money not used to ensure the overall system was actuarially sound, to reduce or replace required employer contributions.  Appellants filed suit, arguing these actions constituted a breach of the constitutional fiduciary duties placed on the board of a county retirement system.  Specifically, appellants alleged the adoption of an amortization rate for unfunded liabilities which included a period of negative amortization violated state law and constitutional mandates.  Appellants further argued the use of non-valuation funds to reduce or replace required employer contributions did the same.

Upon cross-motions for summary judgment, the trial court concluded that none of the actions taken by the board were contrary to law and, finding no material issue of fact, determined summary judgment was properly granted to StanCERA and County.  Appellants have appealed this ruling and the related denial of their cross-motion for summary judgment.  Related to the summary judgment appeal, appellants raise several complaints with evidentiary rulings made by the trial court which led to the exclusion of appellants’ expert declarations and the introduction of evidence appellants contend should not have been considered on summary judgment.


For the following reasons we conclude the trial court correctly determined appellants were not entitled to summary judgment, but erred in determining no material issues of fact remained.  We therefore reverse the grant of summary judgment to respondents and remand for proceedings consistent with this opinion.  With respect to the evidentiary issues raised, we generally affirm the trial court, save for one issue, which has not been contested on appeal.


Zetwick v. County of Yolo (9th Cir. 14-17341 2/23/17) Sexual Harassment/Hostile Work Environment


The panel filed (1) an order recalling the mandate, granting a request for publication, and redesignating a memorandum disposition as an authored opinion with modifications, and (2) an opinion reversing the district court’s summary judgment in favor of the defendants in an action under Title VII and the California Fair Employment and Housing Act.


A county correctional officer alleged that the county sheriff created a sexually hostile work environment. The panel held that a reasonable juror could conclude that differences in the sheriff’s hugging of men and women were not, as the defendants argued, just “genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and the opposite sex.” In addition, the district court’s contrary conclusion may have been influenced by application of incorrect legal standards. The panel held that hugging can create a hostile or abusive workplace when it is unwelcome and pervasive, and summary judgment on a hostile work environment claim is appropriate only if the defendant’s conduct was neither severe nor pervasive enough to alter the conditions of the plaintiff’s employment. The panel remanded the case to the district court for a trial on the merits of the plaintiff’s federal and state sexual harassment claims and her state claim of failing to prevent sexual harassment.


Brandon v. Maricopa County (9th Cir. 14-16910 2/23/17) First Amendment Retaliation


The panel reversed the district court’s judgment in favor of plaintiff following jury verdicts and vacated the attorneys’ fee award in plaintiff’s action brought under 42 U.S.C. § 1983 and state law alleging she was fired from the Maricopa County Attorney’s Office in retaliation for a statement she made to a local newspaper regarding a case she handled for the Maricopa County Sheriff’s Department.


The panel held that no reasonable jury could conclude that County risk management officials improperly interfered with plaintiff’s employment contract when they requested reassignment of her risk management cases to other lawyers after she made statements to the newspaper. Accordingly, the panel reversed the jury’s verdict against the defendant officials on the state law tortious interference with contract claim because, as a matter of law, defendants’ conduct was not improper.


The panel held that with the legally defined scope of an attorney’s duties in mind, it was obvious that plaintiff’s comments to the newspaper could not constitute constitutionally protected citizen speech under the principles from Dahlia v. Rodriguez, 735 F.3d 1060, 1074–76 (9th Cir. 2013). Accordingly, the panel reversed the jury’s First Amendment retaliation verdict.


Fry v. Napoleon Community Schools (US 15–497 2/22/17) Assistive Dog/IDEA Exhaustion of Administrative Remedies


The Individuals with Disabilities Education Act (IDEA) offers federal funds to States in exchange for a commitment to furnish a “free appropriate public education” (FAPE) to children with certain disabilities, 20 U. S. C. §1412(a)(1)(A), and establishes formal administrative procedures for resolving disputes between parents and schools concerning the provision of a FAPE. Other federal statutes also protect the interests of children with disabilities, including Title II of the Americans with Disabilities Act (ADA) and §504 of the Rehabilitation Act. In Smith v. Robinson, 468 U. S. 992, this Court considered the interaction between those other laws and the IDEA, holding that the IDEA was “the exclusive avenue” through which a child with a disability could challenge the adequacy of his education. Id., at 1009. Congress responded by passing the Handicapped Children’s Protection Act of 1986, overturning Smith’s preclusion of non-IDEA claims and adding a carefully defined exhaustion provision. Under that provision, a plaintiff bringing suit under the ADA, the Rehabilitation Act, or similar laws “seeking relief that is also available under [the IDEA]” must first exhaust the IDEA’s administrative procedures. §1415(l).


Petitioner E. F. is a child with a severe form of cerebral palsy; a trained service dog named Wonder assists her with various daily life activities. When E. F.’s parents, petitioners Stacy and Brent Fry, sought permission for Wonder to join E. F. in kindergarten, officials at Ezra Eby Elementary School refused. The officials reasoned that the human aide provided as part of E. F.’s individualized education program rendered the dog superfluous. In response, the Frys removed E. F. from Ezra Eby and began homeschooling her. They also filed a complaint with the Department of Education’s Office for Civil Rights (OCR), claiming that the exclusion of E. F.’s service animal violated her rights under Title II and §504. OCR agreed, and school officials invited E. F. to return to Ezra Eby with Wonder. But the Frys, concerned about resentment from school officials, instead enrolled E. F. in a different school that welcomed the service dog. The Frys then filed this suit in federal court against Ezra Eby’s local and regional school districts and principal (collectively, the school districts), alleging that they violated Title II and §504 and seeking declaratory and monetary relief. The District Court granted the school districts’ motion to dismiss the suit, holding that §1415(l) required the Frys to first exhaust the IDEA’s administrative procedures. The Sixth Circuit affirmed, reasoning that §1415(l) applies whenever a plaintiff’s alleged harms are “educational” in nature.




1. Exhaustion of the IDEA’s administrative procedures is unnecessary where the gravamen of the plaintiff’s suit is something other than the denial of the IDEA’s core guarantee of a FAPE. Pp. 9–18.


(a) The language of §1415(l) compels exhaustion when a plaintiff seeks “relief” that is “available” under the IDEA. Establishing the scope of §1415(l), then, requires identifying the circumstances in which the IDEA enables a person to obtain redress or access a benefit. That inquiry immediately reveals the primacy of a FAPE in the statutory scheme. The IDEA’s stated purpose and specific commands center on ensuring a FAPE for children with disabilities. And the IDEA’s administrative procedures test whether a school has met this obligation: Any decision by a hearing officer on a request for substantive relief “shall” be “based on a determination of whether the child received a free appropriate public education.” §1415(f)(3)(E)(i). Accordingly, §1415(l)’s exhaustion rule hinges on whether a lawsuit seeks relief for the denial of a FAPE. If a lawsuit charges such a denial, the plaintiff cannot escape §1415(l) merely by bringing the suit under a statute other than the IDEA. But if the remedy sought in a suit brought under a different statute is not for the denial of a FAPE, then exhaustion of the IDEA’s procedures is not required. Pp. 9–13.


(b) In determining whether a plaintiff seeks relief for the denial of a FAPE, what matters is the gravamen of the plaintiff’s complaint, setting aside any attempts at artful pleading. That inquiry makes central the plaintiff’s own claims, as §1415(l) explicitly requires in asking whether a lawsuit in fact “seeks” relief available under the IDEA. But examination of a plaintiff’s complaint should consider substance, not surface: §1415(l) requires exhaustion when the gravamen of a complaint seeks redress for a school’s failure to provide a FAPE, even if not phrased or framed in precisely that way. In addressing whether a complaint fits that description, a court should attend to the diverse means and ends of the statutes covering persons with disabilities. The IDEA guarantees individually tailored educational services for children with disabilities, while Title II and §504 promise nondiscriminatory access to public institutions for people with disabilities of all ages. That is not to deny some overlap in coverage: The same conduct might violate all three statutes. But still, these statutory differences mean that a complaint brought under Title II and §504 might instead seek relief for simple discrimination, irrespective of the IDEA’s FAPE obligation. One clue to the gravamen of a complaint can come from asking a pair of hypothetical questions. First, could the plaintiff have brought essentially the same claim if the alleged conduct had occurred at a public facility that was not a school? Second, could an adult at the school have pressed essentially the same grievance? When the answer to those questions is yes, a complaint that does not expressly allege the denial of a FAPE is also unlikely to be truly about that subject. But when the answer is no, then the complaint probably does concern a FAPE. A further sign of the gravamen of a suit can emerge from the history of the proceedings. Prior pursuit of the IDEA’s administrative remedies may provide strong evidence that the substance of a plaintiff’s claim concerns the denial of a FAPE, even if the complaint never explicitly uses that term. Pp. 13–18.


2. This case is remanded to the Court of Appeals for a proper analysis of whether the gravamen of E. F.’s complaint charges, and seeks relief for, the denial of a FAPE. The Frys’ complaint alleges only disability-based discrimination, without making any reference to the adequacy of the special education services E. F.’s school provided. Instead, the Frys have maintained that the school districts infringed E. F.’s right to equal access—even if their actions complied in full with the IDEA’s requirements. But the possibility remains that the history of these proceedings might suggest something different. The parties have not addressed whether the Frys initially pursued the IDEA’s administrative remedies, and the record is cloudy as to the relevant facts. On remand, the court below should establish whether (or to what extent) the Frys invoked the IDEA’s dispute resolution process before filing suit. And if the Frys started down that road, the court should decide whether their actions reveal that the gravamen of their complaint is indeed the denial of a FAPE, thus necessitating further exhaustion.


Pp. 18–20. 788 F. 3d 622, vacated and remanded.


KAGAN, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, GINSBURG, BREYER, and SOTOMAYOR, JJ., joined.


ALITO, J., filed an opinion concurring in part and concurring in the judgment, in which THOMAS, J., joined.


Lynn v. Tatitlek Support (CA4/2 E063585 2/22/17) Employer Vicarious Liability/Going and Coming Rule


Plaintiffs and appellants Gail M. Lynn (Mrs. Lynn), individually and as executor of the Estate of Brian Griffin Lynn (Mr. Lynn), and Randy Lynn, Mr. and Mrs. Lynn’s son, (plaintiffs) appeal from summary judgment entered in favor of defendant and respondent Tatitlek Support Services, Inc. (TSSI) in a wrongful death action. 


The sole question raised on appeal is whether TSSI’s temporary employee, Abdul Formoli, was acting within the scope of his employment when he caused an automobile accident (the accident), killing Mr. Lynn and seriously injuring Mrs. Lynn.  Plaintiffs contend the “going and coming” rule, precluding employer vicarious liability, does not apply because of the nature of Formoli’s employment preceding the accident.  Because of the remoteness of the jobsite, Formoli’s employment required him to undertake a lengthy commute home, after working long hours, over three and a half days.  Plaintiffs argue that under such circumstances there is a triable issue of material fact as to whether an exception to the “going and coming” rule applies.  Plaintiffs rely on three exceptions:  the extraordinary-commute incidental benefit exception, the compensated travel-time exception, and the special risk exception.


We conclude plaintiffs have failed to present evidence supporting these exceptions to the going and coming rule.  We therefore affirm the judgment on the ground it is undisputed TSSI was not vicariously liable for the accident under the doctrine of respondeat superior.


McLane Co. v. EEOC (US 15-1248 Oral Argument Transcript 2/21/17) EEOC Subpoena/Standard of Review


Whether a district court’s decision to quash or enforce an EEOC subpoena should be reviewed de novo, which only the Ninth Circuit does, or should be reviewed deferentially, which eight other circuits do, consistent with this Court’s precedents concerning the choice of standards of review.


Roy Allan Slurry Seal v. Amer. Asphalt South (SC S225398 2/16/17) Prevailing Wage/Public Works Contracts


To prove the tort of intentional interference with prospective economic advantage, a plaintiff must establish “the existence of an economic relationship with some third party that contains the probability of future economic benefit to the plaintiff.”  (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1164 (Korea Supply).)  Here we decide whether such a relationship exists between a bidder for a public works contract and the public entity soliciting bids.  Plaintiffs alleged that they had submitted the second lowest bids on several contracts awarded to defendant, and that their bids would have been accepted but for defendant’s wrongful conduct during the bidding process.  A divided Court of Appeal panel found these allegations sufficient.  We reverse.  Public works contracts are a unique species of commercial dealings.  In the contracts at issue here, the public entities retained broad discretion to reject all bids.  The bids were sealed, and there were no postsubmission negotiations.  In awarding the contracts, the public entities could give no preference to any bidder based on past dealings, and were required to accept the lowest responsible bid.  In these highly regulated circumstances, plaintiffs had “at most a hope for an economic relationship and a desire for future benefit.”  (Blank v. Kirwan (1985) 39 Cal.3d 311, 331 (Blank).)  Accordingly, plaintiffs’ allegations were insufficient; the demurrer was properly sustained. 


Goonewardene v. ADP, LLC  (2016) 5 Cal.App.5th 154 (SC S238941/B267010 review granted 2/15/17) Payroll Service Provider/Joint Employer


Petition for review after the Court of Appeal reversed the dismissal of a civil action. This case presents the following issue: Does the aggrieved employee in a lawsuit based on unpaid overtime have viable claims against the outside vendor that performed payroll services under a contract with the employer? Review granted/brief due.


Court of Appeal Opinion

Hamilton v. Orange County Sheriff's Dept. (CA4/3 G051773 2/7/17) Civil Procedure/Employment Discrimination


This appeal arises from an uncontested summary judgment.  Plaintiff contends the court erred by not accepting the parties’ stipulation to continue the hearing on defendant’s summary judgment motion and the trial for 60 days.  The parties had agreed to these continuances to allow plaintiff to take depositions of the witnesses whose declarations had been submitted in support of defendant’s pending summary judgment motion.  Plaintiff had timely noticed these depositions but they could not go forward because defendant’s counsel was engaged in trial.  The court had earlier granted defendant’s ex parte motion to continue the trial so that defendant’s summary judgment motion could be heard.  Under these circumstances, we conclude the court abused its discretion by failing to accommodate counsel’s joint request for a further 60-day continuance.  Accordingly, we reverse the judgment.


Atkins v. City of Los Angeles (CA2/7 B257890 2/14/17) FEHA Disability & Failure to Accommodate/Speculative Damages


A jury found that the City of Los Angeles violated the rights of five recruit officers of the Los Angeles Police Department under the Fair Employment and Housing Act (FEHA) when the Department terminated or constructively discharged them from the Police Academy.  Each of the recruits suffered temporary injuries while training at the Academy.  At the time they were injured, the Department had been assigning injured recruits to light-duty administrative positions indefinitely until their injuries healed or they became permanently disabled.  The Department ended this practice while the plaintiffs were still recuperating from their injuries.  Rather than allowing them to remain in their light-duty assignments, the Department asked them to resign or the Department would terminate them, unless they could get immediate medical clearance to return to the Academy.  None of the recruits was able to obtain the necessary clearance, and the Department terminated or constructively discharged all of them.  The five recruit officers brought this action.


The jury found that the City unlawfully discriminated against the plaintiffs based on their physical disabilities, failed to provide them reasonable accommodations, and failed to engage in the interactive process required by FEHA.  The City challenges the jury’s verdict on a number of grounds, including that the plaintiffs were not “qualified individuals” under FEHA because they could not perform the essential duties of a police recruit with or without a reasonable accommodation, and that the City was not required to accommodate the plaintiffs by making their temporary light-duty positions permanent or by transferring them to another job with the City.  With respect to the plaintiffs’ claim for failure to engage in the interactive process, the City argues that because there were no open positions available for the plaintiffs, the City did not have to continue the required interactive process.


We agree that the plaintiffs were not “qualified individuals” under FEHA for purposes of their discrimination claim but conclude that they satisfied this requirement for their failure to accommodate claim.  We further conclude that requiring the City to assign temporarily injured recruit officers to light-duty administrative assignments was not unreasonable as a matter of law in light of the City’s past policy and practice of doing so.  Because we affirm the City’s liability on this basis, we do not reach the City’s challenge to the verdict on the plaintiffs’ claim for failure to engage in the interactive process.


The City also challenges the jury’s award of future economic damages as speculative and excessive.  Despite the fact that the plaintiffs had completed only hours or weeks of their Academy training, the jury awarded each of them future economic losses through the time of their hypothetical retirements from the Department as veteran police officers.  We agree with the City that such damages are unreasonably speculative.  We therefore vacate that portion of the damages award, as well as, for now, the trial court’s award of attorneys’ fees and costs.


Daniel v. Wayans (CA2/1 B261814 & B263950 2/9/17) Actor Racial Harassment/First Amendment Creative Process


On September 4, 2013, Pierre Daniel (Daniel), an actor, worked as an extra in a movie entitled, A Haunted House 2 (Open Road Films 2014).  Marlon Wayans (Wayans) co-wrote, produced, and starred in the movie.  In August 2014, Daniel sued Wayans and others, alleging, inter alia, that he was the victim of racial harassment because during his one day of work on the movie he was compared to a Black cartoon character and called “ ‘[n]igga.’ ”  In response, Wayans, pursuant to Code of Civil Procedure  section 425.16, moved to strike Daniel’s claims against him as a SLAPP suit (strategic lawsuit against public participation), arguing that all of Daniel’s claims arose from Wayans’s constitutional right of free speech because the core injury-producing conduct arose out of the creation of the movie and its promotion over the Internet.  The trial court agreed with Wayans and also found that Daniel had failed to establish the probability that he would prevail on any of his claims against Wayans.  As a result, the trial court entered judgment in favor of Wayans and awarded him his attorney fees.


On appeal, Daniel argues that the trial court erred with regard to its determination of the threshold issue in Wayans’s anti-SLAPP motion—that is, the conduct at issue was not part of the “ ‘creative process’ ” inherent in making the movie because it occurred when the cameras were not rolling and, as a result, did not involve the right of free speech or an issue of public interest.  In the alternative, Daniel contends that even if the conduct at issue implicated Wayans’s right to free speech, he presented sufficient evidence to the trial court to establish a probability of prevailing.  We find both of Daniel’s arguments to be unpersuasive.  Accordingly, we affirm the judgment.


Vasserman v. Henry Mayo Newhall Memorial Hosp. (CA2/4 B267975 2/7/17) Arbitration


Plaintiff Tanya Vasserman sued her former employer, Henry Mayo Newhall Memorial Hospital (the Hospital) for violations of the California Labor Code and other statutes relating to meal and rest breaks, unpaid wages, and unpaid overtime compensation.  The Hospital argued that the collective bargaining agreement relevant to Vasserman’s employment required her to arbitrate her claims. The trial court denied the Hospital’s motion to compel arbitration, and the Hospital appealed.


We affirm.  The dispute before us is not over Vasserman’s substantive rights, but instead the forum in which those rights are to be determined. If those rights are to be determined only by arbitration, a collective bargaining agreement must make that clear.  The collective bargaining agreement here required arbitration of claims arising under the agreement, but it did not include an explicitly stated, clear and unmistakable waiver of the right to a judicial forum for claims based on statute. The trial court therefore correctly denied the Hospital’s motion to compel arbitration.


Mayes v. Winco Holdings (9th Cir. 14-35396 2/3/17) Wrongful Termination/COBRA


The panel reversed the district court’s summary judgment in favor of the defendant on gender discrimination claims under Title VII and the Idaho Human Rights Act, a claim under the Consolidated Omnibus Budget Reconciliation Act, and wage claims under the Fair Labor Standards Act and the Idaho Wage Claim Act.


WinCo, a grocery store, fired the plaintiff, who supervised employees on the night-shift freight crew, for

taking a stale cake from the store bakery to share with fellow employees and telling a loss prevention investigator that management had given her permission to do so.


As to the plaintiff’s gender discrimination claims, the panel held that she presented sufficient evidence that WinCo’s proffered reasons for terminating her were pretextual because she offered ample direct evidence of discriminatory animus, as well as specific and substantial indirect evidence challenging the credibility of WinCo’s motives.


As to the COBRA claim, there was a genuine dispute of fact regarding the true reason for the plaintiff’s termination. The panel held that the district court therefore erred in granting summary judgment because if WinCo fired the plaintiff for discriminatory reasons, rather than gross misconduct, then she could be entitled to COBRA benefits.


The panel also reversed the district court’s summary judgment on the federal and state wage claims, and it remanded the case to the district court.

Poublon v. C.H. Robinson (9th Cir. 15-55143 2/3/17) Arbitration/PAGA


The panel reversed the district court’s order denying defendants’ motion to stay proceedings, compel arbitration of claims arising out of the plaintiff’s employment, and dismiss class and representative claims.


The panel reversed the district court’s holding that the dispute resolution provision in an Incentive Bonus Agreement signed by the plaintiff was both procedurally and substantively unconscionable under California law. The panel concluded that, even though the Incentive Bonus Agreement was an adhesion contract, there was a low degree of procedural unconscionability. As to substantive unconscionability, the defendants did not contest the district court’s holding that a judicial carve-out provision was substantively unconscionable. The panel held that a waiver of representative claims was not substantively unconscionable even though the waiver of the plaintiff’s claim under California’s Private Attorneys General Act was not enforceable under California law. A venue provision, a confidentiality provision, a sanctions provision, a unilateral modification provision, and limitations on discovery also were not substantively unconscionable.


The panel concluded that the dispute resolution provision was valid and enforceable once the judicial carve-out was extirpated and the waiver of representative claims was limited to non-PAGA claims. The panel remanded the case to the district court.


Orange Co. Water Dist. v. Public Employment Relations Bd. (CA4/3 G052725 2/1/17) Modified Agency Shop


The Public Employment Relations Board (the Board or PERB) concluded the Orange County Water District (the District) committed an unfair practice, in violation of Government Code section 3502.5, when it refused to consent to an election petitioned for by the recognized employee organization seeking to implement a so-called modified agency shop.  (All further statutory references are to the Government Code unless otherwise specified.)  An agency shop is defined in section 3502.5, subdivision (a) as an arrangement that requires an employee, as a condition of continued employment, to either join the recognized employee organization or pay the organization a service fee.  The proposed agency shop in this case is referred to as a “modified” agency shop because it would apply only to future employees hired into the bargaining unit and not apply to current employees.  The District filed a petition for a writ of extraordinary relief from the Board’s decision under section 3509.5, subdivision (a).  We granted a writ of review.


We deny the petition for extraordinary relief.  For the reasons we explain post, we hold that section 3502.5 authorizes the proposed modified agency shop.


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