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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Internat. Union of Operating Engineers, Local 39 v. Macy's, Inc. (CA2/4 A161959 (related case A163029 9/30/22) Labor Picketing/anti-SLAPP
Plaintiff Macy’s, Inc. (Macy’s) sued Defendant Stationary Engineers Local 39 (Local 39) for damages and injunctive relief based on allegations that Local 39 had engaged in unlawful conduct in connection with its picketing activities outside Macy’s San Francisco store. Local 39 filed a special motion to strike Macy’s complaint pursuant to Code of Civil Procedure section 425.16 (anti-SLAPP statute), which the trial court denied in part. After Macy’s filed an amended complaint, Local 39 filed a second anti-SLAPP motion, which the trial court denied.
Local 39 appealed both orders, and we consolidated the two appeals for all purposes. Local 39 argues that the trial court should have granted its anti-SLAPP motions in full because Macy’s complaints were based on protected conduct and Macy’s failed to demonstrate a probability of prevailing on its claims.
We need not address the merits of Local 39’s appeal of the denial of its second anti-SLAPP motion because we agree with it in the first appeal that the trial court should have granted its first anti-SLAPP motion in full and ordered the entire complaint stricken.
Bills Signed and Vetoed by Governor (9/29/22) (2 of 2)
AB 152 by the Committee on Budget – COVID-19 relief: supplemental paid sick leave.
AB 551 by Assemblymember Freddie Rodriguez (D-Pomona) – Disability retirement: COVID-19: presumption.
AB 1041 by Assemblymember Buffy Wicks (D-Oakland) – Employment: leave.
AB 1601 by Assemblymember Dr. Akilah Weber (D-San Diego) – Employment protections: mass layoff, relocation, or termination of employees: call centers.
AB 1667 by Assemblymember Jim Cooper (D-Elk Grove) – State Teachers’ Retirement System: administration.
AB 1747 by Assemblymember Bill Quirk (D-Hayward) – Contractors: disciplinary action.
AB 1751 by Assemblymember Tom Daly (D-Anaheim) – Workers’ compensation: COVID-19: critical workers.
AB 1775 by Assemblymember Christopher Ward (D-San Diego) – Occupational safety: live events.
AB 1788 by Assemblymember Jordan Cunningham (R-San Luis Obispo County) – Sex trafficking: hotels: actual knowledge or reckless disregard: civil penalty.
AB 1851 by Assemblymember Robert Rivas (D-Salinas) – Public works: prevailing wage: hauling.
AB 1949 by Assemblymember Evan Low (D-Campbell) – Employees: bereavement leave.
AB 2243 by Assemblymember Eduardo Garcia (D-Coachella) – Occupational safety and health standards: heat illness: wildfire smoke.
AB 2524 by Assemblymember Ash Kalra (D-San Jose) – Santa Clara Valley Transportation Authority: employee relations.
AB 2683 by Assemblymember Jesse Gabriel (D-Encino) – Postsecondary education: sexual violence and harassment: training and resources.
AB 2693 by Assemblymember Eloise Gómez Reyes (D-Colton) – COVID-19: exposure.
AB 2763 by Assemblymember Ash Kalra (D-San Jose) – Santa Clara Valley Transportation Authority: job order contracting.
AB 2849 by Assemblymember Mia Bonta (D-Oakland) – The Promote Ownership by Workers for Economic Recovery Act.
SB 731 by Senator María Elena Durazo (D-Los Angeles) – Criminal records: relief.
SB 755 by Senator Richard D. Roth (D-Riverside) – Workforce development: training-related job placement: reporting.
SB 868 by Senator Dave Cortese (D-San Jose) – State teachers’ retirement: supplemental benefits.
SB 931 by Senator Connie Leyva (D-Chino) – Deterring union membership: violations.
SB 954 by Senator Bob Archuleta (D-Pico Rivera) – Public works: wages: electronic certified payroll records.
SB 960 by Senator Nancy Skinner (D-Berkeley) – Public employment: peace officers: citizenship.
SB 1044 by Senator María Elena Durazo (D-Los Angeles) – Employers: emergency condition: retaliation.
SB 1127 by Senator Toni G. Atkins (D-San Diego) – Workers’ compensation: liability presumptions.
SB 1138 by Senator Ben Allen (D-Santa Monica) – Unemployment insurance: report: self-employed individuals.
SB 1334 by Senator Steven Bradford (D-Gardena) – Meal and rest periods: hospital employees.
SB 1477 by Senator Bob Wieckowski (D-Fremont) – Enforcement of judgments: wage garnishment.
AB 334 by Assemblymember Kevin Mullin (D-South San Francisco) – Workers’ compensation: skin cancer. A veto message can be found here.
AB 826 by Assemblymember Jacqui Irwin (D-Thousand Oaks) – County Employees Retirement Law of 1937: compensation and compensation earnable. A veto message can be found here.
AB 2296 by Assemblymember Reginald Byron Jones-Sawyer, Sr. (D-Los Angeles) – Task Force to Study and Develop Reparation Proposals for African Americans. A veto message can be found here.
AB 2441 by Assemblymember Ash Kalra (D-San Jose) – Public employment: local public transit agencies: autonomous transit vehicle technology. A veto message can be found here.
SB 284 by Senator Henry Stern (D-Los Angeles) – Workers’ compensation: firefighters and peace officers: post-traumatic stress. A veto message can be found here.
SB 1066 by Senator Melissa Hurtado (D-Sanger) – California Farmworkers Drought Resilience Pilot Project. A veto message can be found here.
SB 1364 by Senator María Elena Durazo (D-Los Angeles) – University of California: vendors. A veto message can be found here.
SB 1371 by Senator Steven Bradford (D-Gardena) – Incarcerated persons: wages. A veto message can be found here.
SB 1387 by Senator Monique Limόn (D-Santa Barbara) – Gubernatorial appointments: report. A veto message can be found here.
Bills Signed by Governor (9/29/22)
SB 1116 by Senator Anthony Portantino (D-La Cañada Flintridge) – Arts Council: The Performing Arts Equitable Payroll Fund. A signing message can be found here.
SB 1407 by Senator Josh Becker (D-Menlo Park) – California Employee Ownership Act.
Bills Signed and Vetoed by Governor (9/28/22)
AB 1726 by Assemblymember Cecilia Aguiar-Curry (D-Winters) – Address confidentiality program
AB 2183 by Assemblymember Mark Stone (D-Monterey) -- Agricultural labor relations: elections
AB 2766 by Assemblymember Brian Maienschein (D-San Diego) – Unfair Competition Law: enforcement powers: investigatory subpoena
AB 1717 by Assemblymember Cecilia Aguiar-Curry (D-Winters) – Public works: definition. A veto message can be found here
AB 2464 by Assemblymember Cristina Garcia (D-Bell Gardens) – California State University: employees: paid parental leave of absence. A veto message can be found here.
AB 2847 by Assemblymember Eduardo Garcia (D-Coachella) – Unemployment: Excluded Workers Pilot Program. A veto message can be found here.
SB 410 by Senator Connie Leyva (D-Chino) – Public postsecondary education: California State University: nonfaculty staff employees: merit salary system. A veto message can be found here.
SB 422 by Senator Richard Pan (D-Sacramento) – Personal services contracts: state employees: physician registry for state hospitals. A veto message can be found here.
SB 1313 by Senator Robert Hertzberg (D-Van Nuys) – Local public employee organizations: health benefits: discrimination. A veto message can be found here.
Miller v. Roseville Lodge No. 1293 (CA3 C090751, filed 9/2/22, ord pub. 9/28/22) Pivette Doctrine
This case involves application of the so-called Privette doctrine, which deals with whether an entity that hires an independent contractor can be liable for on-the-job injuries sustained by the independent contractor’s workers. Under the Privette doctrine, the answer is no, unless an exception applies.
Defendant and respondent Roseville Lodge No. 1293, Loyal Order of Moose, Inc. (the Lodge) hired Charlie Gelatini to move an automated teller machine (ATM) on its premises. Plaintiff and appellant Ricky Lee Miller, Jr., worked for Gelatini and was the person who performed the work. Miller was injured on the job when he fell from a scaffold, and he seeks to hold the Lodge and its bartender John Dickinson liable for his injuries. Citing the Privette doctrine, the Lodge and Dickinson argued they are not liable, and they moved for summary judgment. Miller argued triable issues of fact exist over whether an exception applies. The trial court granted the motion, and Miller appealed. We now affirm.
Bills Signed by Governor (9/28/22)
AB 1654 by Assemblymember Robert Rivas (D-Salinas) – Low-income housing: insurance tax: credits: farmworker housing
AB 1719 by Assemblymember Christopher Ward (D-San Diego) – Housing: Community College Faculty and Employee Housing Act of 2022
Bills Signed and Vetoed by Governor (9/27/22) (2 of 2)
AB 156 by the Committee on Budget – State government (includes sheepherders, apprenticeships)
AB 190 by the Committee on Budget – Higher education budget trailer bill (includes health insurance for part-time faculty)
SB 1002 by Senator Anthony Portantino (D-La Cañada Flintridge) – Workers’ compensation: licensed clinical social workers.
AB 240 by Assemblymember Freddie Rodriguez (D-Pomona) – Local health department workforce assessment. A veto message can be found here.
AB 364 by Assemblymember Freddie Rodriguez (D-Pomona) – Foreign labor contractor registration: agricultural workers. A veto message can be found here.
AB 857 by Assemblymember Ash Kalra (D-San Jose) – Employers: Labor Commissioner: required disclosures. A veto message can be found here.
Espinoza v. Super. Ct. (CA2/1 B314914 9/27/22) Untimely Payment of Arbitration Fees
Plaintiff and petitioner Rosa M. Quincoza Espinoza filed claims for discrimination and retaliation against her former employer, defendant and real party in interest Centinela Skilled Nursing & Wellness Centre West, LLC. The trial court granted defendant’s motion to stay litigation and compel the parties to proceed in arbitration. When defendant failed to pay its arbitration fees by a statutory deadline, plaintiff moved the trial court to lift the stay of litigation and allow her to proceed in court. The trial court denied the motion, and plaintiff filed the instant petition for a writ of mandate directing the trial court to reverse that denial.
Plaintiff’s motion to lift the litigation stay contended that defendant had failed to pay the arbitration provider’s initial invoice within 30 days of the due date for payment, and thus under Code of Civil Procedure section 1281.97, subdivision (a)(1) was in default and material breach of the arbitration agreement. Under those circumstances, section 1281.97 entitled her to proceed with her claims in court. Defendant opposed the motion and provided evidence that it had since made the necessary payment, and the delay was inadvertent and due to a clerical error.
The trial court found that defendant was not in material breach because it had substantially complied with its payment obligations and the delay did not prejudice plaintiff. Plaintiff filed the instant writ petition, contending that section 1281.97 must be applied strictly when payment is not made within 30 days, with no exceptions for substantial compliance or lack of prejudice. Defendant argues in opposition that strict application of section 1281.97 is contrary to legislative intent. Alternatively, defendant argues section 1281.97 is preempted by the Federal Arbitration Act (FAA) (9 U.S.C. § 1 et seq.), which the trial court found applies to the arbitration agreement between defendant and plaintiff. Defendant did not raise this preemption argument below, and thus the trial court did not address it.
We agree with plaintiff that, based on the plain language as well as the legislative history of section 1281.97, the Legislature intended courts to apply the statute’s payment deadline strictly. Thus, under section 1281.97, subdivision (a)(1), defendant was in material breach of the arbitration agreement even though, as the trial court found, the delay in payment was inadvertent, brief, and did not prejudice plaintiff.
We reject defendant’s argument that the FAA preempts section 1281.97. The FAA preempts state laws that prohibit or discourage the formation or enforcement of arbitration agreements, or that interfere with fundamental attributes of arbitration. As our colleagues in Division Two recently held in Gallo v. Wood Ranch USA, Inc. (2022) 81 Cal.App.5th 621(Gallo), section 1281.97 does none of this. Rather, the statute set forth procedural requirements to ensure timely payment of arbitration fees, thus “ further[ing]—rather than frustrat[ing]—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.” (Gallo, at p. 630.)
Accordingly, we grant the petition.
Bills Signed by Governor (9/27/22)
AB 1467 by Assemblymember Sabrina Cervantes (D-Riverside) – Student, faculty and staff safety: sexual assault and domestic violence procedures and protocols: sexual assault and domestic violence counselors
SB 1162 by Senator Monique Limόn (D-Santa Barbara) – Employment: Salaries and Wages
Rodriguez v. Parivar, Inc. (CA1/4 A158939 9/26/22) Overtime | Special Verdict Question
By a split vote of 9 to 3, Patricia Rodriguez won a jury verdict against Parivar, Inc. and Yadav Enterprises, Inc. (collectively Parivar) for failure to pay her overtime wages during the 23-month period she was employed as a salaried manager at a Jack in the Box restaurant in San Leandro. This appeal is from the ensuing judgment and a postjudgment order against Parivar for, respectively, $38,356.75 in unpaid overtime plus prejudgment interest, and $932,842.63 in attorney fees and costs.
The primary focus of the appeal is a special verdict question that was designed to elicit a finding of ultimate fact on Parivar’s affirmative defense of executive exemption. When asked whether “Ms. Rodriguez performed exempt duties more than half of the time,” the jury answered “No.” According to Parivar, the narrow framing of this question effectively barred it from proving its executive exemption defense by allowing the jury to find liability without addressing the issue of Parivar’s realistic expectations for how Rodriguez should have allocated her time.
We agree that the challenged special verdict question was erroneous and that the error was prejudicial. Accordingly, we reverse the judgment and vacate the award of fees and costs, without reaching any of Parivar’s other arguments attacking the judgment or the merits of its attack on the award of fees and costs.
Bills Signed and Vetoed by Governor (9/25/22)
AB 1971 by Assemblymember Jim Cooper (D-Elk Grove) – County Employees Retirement Law of 1937.
AB 2359 by Assemblymember Mike Gipson (D-Carson) – Compton Community College District: personnel commission.
AB 2443 by Assemblymember Ken Cooley (D-Rancho Cordova) – Judges’ Retirement System II: benefits.
SB 1089 by Senator Scott Wilk (R-Santa Clarita) – Public employee retirement systems: prohibited investments: Turkey.
SB 1271 by Senator Scott Wilk (R-Santa Clarita) – Contracts for the acquisition of goods or services: extension or renewal: legislative oversight.
AB 1856 by Assemblymember Jose Medina (D-Riverside) – Community colleges: part-time employees. A veto message can be found here.
AB 2069 by Assemblymember Carlos Villapudua (D-Stockton) – California Home Health Aide Training Scholarship Act. A veto message can be found here.
AB 2666 by Assemblymember Rudy Salas (D-Bakersfield) – Behavioral health internship grant program. A veto message can be found here.
Bill Signed and Vetoed by Governor (9/23/22)
AB 2068 by Assemblymember Matt Haney (D-San Francisco) – Occupational safety and health: postings: spoken languages
AB 858 by Assemblymember Reginald Byron Jones-Sawyer, Sr. (D-Los Angeles) – Employment: health information technology: clinical practice guidelines: worker rights. A veto message can be found here.
Bill Vetoed by Governor (9/22/22)
AB 2003 by Assemblymember Mike Fong (D-Alhambra) – California Workforce Development Board: model career pathways. A veto message can be found here.
L.A. College Faculty Guild etc. v. L.A. Community College Dist. (CA2/8 B313085 9/21/22) Arbitration | CBA
The Los Angeles College Faculty Guild (Guild) represents faculty at the nine community colleges in the Los Angeles Community College District (District). The Guild appeals the trial court’s judgment of dismissal of its petition to compel arbitration of grievances relating to the District’s decision to cancel all remedial for-credit English and mathematics courses two levels below transfer level. The Guild contends the court erred in determining it, rather than an arbitrator, should decide the issue of arbitrability and further erred in finding the grievances non-arbitrable. The Guild maintains the grievances involve violations of several provisions of the collective bargaining agreement (CBA) between the parties and so are subject to the arbitration provision of that agreement. We affirm the trial court’s order denying the motion and petition and its subsequent judgment of dismissal.
Vo v. Choi (9th Cir. 20-55737 9/21/22) Supplemental Jurisdiction | ADA & Unruh Act
The panel affirmed the district court’s order declining to exercise supplemental jurisdiction over Thanh Vo’s California Unruh Civil Rights Act claim against John Choi.
After the district court entered default against Choi on Vo’s claims under the Americans with Disabilities Act and the Unruh Act, it ordered Vo to show cause why it should not decline to exercise supplemental jurisdiction over the Unruh Act claim. After considering Vo’s response, the district court elected to decline supplemental jurisdiction under 28 U.S.C. § 1367(c)(4). The district court determined that there were exceptional circumstances and compelling reasons justifying this exercise of its discretion.
The panel held that under Arroyo v. Rosas, 19 F.4th 1202 (9th Cir. 2021), in order to decline to exercise supplemental jurisdiction in a joint ADA and Unruh Act suit, the district court must properly articulate why the circumstances of the case are exceptional. In addition, the balance of the Gibbs values must provide compelling reasons for declining jurisdiction in such circumstances. These values are judicial economy, convenience, fairness to litigants, and comity.
The panel held that the district court did not abuse its discretion. First, there were exceptional circumstances regarding comity and fairness in allowing Vo to evade California’s heightened procedural requirements for Unruh Act claims by bringing her claims in federal court. Second, unlike in Arroyo, the district court declined supplemental jurisdiction well before it ruled on the merits of the ADA claim, meaning that the Gibbs values could be effectuated. The panel held that the district court did not abuse its discretion in determining that there were compelling reasons to decline jurisdiction over the Unruh Act claim. The panel rejected Vo’s argument that the district court’s order was not sufficiently case-specific.
Concurring in part and dissenting in part, Judge Bade agreed with the majority that the district court did not abuse its discretion in determining that exceptional circumstances under § 1367(c)(4) were presented by the distinctive configuration of California-law rules that would be rendered ineffectual if the district court were to exercise supplemental jurisdiction. Judge Bade also agreed that the district court’s use of a “boilerplate order” was insufficiently case-specific as to per se constitute an abuse of discretion or an error. Judge Bade disagreed, however, with the majority’s conclusion that the district court provided compelling reasons that warranted declining to exercise supplemental jurisdiction based on Vo’s alleged evasion of California laws restricting construction-related accessibility claims and imposing heightened pleading requirements on high-frequency litigants, when these reasons were not factually supported in the record and were clearly erroneous.
Gavriiloglou v. Prime Healthcare Management (CA4/2 E076832, filed 8/26/22, pub. ord. 9/20/22) PAGA/Arbitration
Eleni Gavriiloglou brought this action against her former employer and its alleged alter egos. She asserted, among other things, (1) individual claims for damages based on Labor Code violations and (2) a representative claim for civil penalties for Labor Code violations under the Private Attorneys General Act (Lab. Code, § 2698 et seq.) (PAGA). As Gavriiloglou had signed an arbitration agreement, the trial court compelled her to arbitrate her non-PAGA claims and stayed her PAGA claim while she did. The arbitrator found that the alleged Labor Code violations had not occurred. The trial court then granted judgment on the pleadings against Gavriiloglou on her PAGA claim; it ruled that the arbitrator’s findings established that she was not an “aggrieved employee” within the meaning of PAGA, and therefore that she lacked standing to bring a PAGA claim.
Gavriiloglou appeals. She contends that (1) the trial court erred by denying her petition to vacate the arbitration award, and (2) the trial court erred by ruling that the arbitration award barred her PAGA claim.
We will hold that the trial court properly denied the motion to vacate the arbitration award. However, we will also hold that the arbitration did not bar the PAGA claim because Gavriiloglou was acting in different capacities and asserting different rights. Accordingly, we will reverse.
Malloy v. Superior Court (CA2/7 B318588 9/19/22) FEHA/Remote Work and Venue
California’s Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.), enacted in 1980, establishes a comprehensive framework to safeguard the right of all individuals to seek, obtain and hold employment free from discrimination. (§ 12920; Brown v. Superior Court (1984) 37 Cal.3d 477, 485 (Brown); Hirst v. City of Oceanside (2015) 236 Cal.App.4th 774, 782.) As one means of furthering FEHA’s express purpose to provide effective remedies for discriminatory practices, a special venue provision allows plaintiffs to file a lawsuit “in any county in the state in which the unlawful practice is alleged to have been committed, in the county in which the records relevant to the practice are maintained and administered, or in the county in which the aggrieved person would have worked . . . but for the unlawful practice.” (§ 12965, subd. (c)(3); see Brown, at p. 486 [“[T]he costs of litigation pose a formidable barrier to the filing and prosecution of a FEHA action. The Legislature recognized this barrier and sought to alleviate it by providing those persons [victims of employment discrimination] with a wide choice of venue”].)
Today, more than four decades after the original passage of FEHA, as a result of advances in technology and the impact of the COVID-19 pandemic, working remotely is no longer an infrequently conferred perquisite, but an increasingly common and necessary adaptation to the demands of modern life. What does this increase in remote work mean for the ability of victims of employment discrimination to utilize the liberal FEHA venue statute? In particular, in the matter now before us, may Eleanor Malloy bring her lawsuit for pregnancy discrimination, interference and retaliation in Los Angeles County, where she had been working remotely before being fired, or did the allegedly unlawful practices—terminating her employment while on protected pregnancy leave—occur only at her employer’s office in Orange County, which must also be deemed the location where Malloy would have worked but for the unlawful practices?
Respondent Los Angeles Superior Court, in a terse order, granted Malloy’s employers’ motion for change of venue, concluding venue was proper only in Orange County. We disagree, grant Malloy’s petition for writ of mandate and order respondent superior court to vacate its order granting the motion for change of venue and to enter a new order denying the motion, permitting Malloy’s case to proceed in Los Angeles County.
Wright v. SEIU Local 503 (9th Cir. 20-35878 9/19/22) Section 1983 Failure to Allege State Action
The panel affirmed the district court’s dismissal of plaintiff’s claims for prospective relief against all defendants for lack of jurisdiction and her claims for retrospective relief against Service Employees International Union Local 503 (“SEIU”) for failure to allege state action under 42 U.S.C. § 1983.
Before her retirement, plaintiff was employed by the Oregon Health Authority, and SEIU was the exclusive representative for her bargaining unit. Plaintiff never joined SEIU, but the State deducted union dues from her salary and remitted the dues to SEIU. Plaintiff alleged that SEIU forged her signature on a union membership agreement. Plaintiff demanded that the State and SEIU stop the dues deductions and return the withheld payments. After she retired, plaintiff filed this action against State defendants and SEIU, alleging several constitutional claims under 42 U.S.C. § 1983. She also alleged several Oregon state law claims against SEIU.
The panel held that plaintiff lacked standing to pursue her claims for prospective relief, and plaintiff’s § 1983 claims failed for lack of state action.
Because jurisdiction is a threshold issue, the panel first considered whether it could entertain plaintiff’s claims for prospective declaratory and injunctive relief against all defendants. As to plaintiff’s claims for prospective relief for violation of her First Amendment rights, the panel concluded that her fear of future harm was based on a series of interferences that were too speculative to establish a “case or controversy” for the prospective relief she sought. Because she retired before filing this lawsuit, plaintiff’s sole basis for her impending injury was her fear that, should she return to work, SEIU would forge a new membership agreement. Plaintiff’s theory of future injury was unavailing. Plaintiff’s allegations of past injury were also insufficient to establish standing. Plaintiff’s theory that potential future unauthorized dues deductions chilled her exercise of her First Amendment rights was also too speculative to establish standing. Similarly, as to plaintiff’s claims for prospective relief for violation of her Fourteenth Amendment procedural due process rights, the panel concluded that she lacked any concrete interest in her future wages or her right to be free from compelled union speech that were threatened by the alleged lack of procedural safeguards. The panel therefore affirmed the dismissal of these claims for lack of jurisdiction.
The panel next considered whether plaintiff’s remaining claims against SEIU for retrospective relief—damages—were cognizable under 42 U.S.C. § 1983. The panel held that the district court did not err in dismissing these claims because SEIU was not a state actor for § 1983 purposes. Belgau v. Inslee, 975 F.3d 940 (9th Cir. 2020), dealt with an analogous statutory scheme in Washington authorizing union dues deductions. Given the similarities in the two statutory schemes of Oregon and Washington, the panel agreed with SEIU that, as in Belgau, it was not a state actor for purposes of § 1983. Plaintiff’s claims failed to identify any “state policy” that would make SEIU a state actor under § 1983. SEIU further cannot fairly be described as a state actor under the joint action or public function tests. The panel therefore affirmed the district court’s dismissal of plaintiff’s claims for retrospective relief against SEIU.
Ochoa v. Public Consulting Group (9th Cir. 19-35870 9/19/22) Section 1983, 1st & 14th Amendments
The panel affirmed the district court’s dismissal of all of plaintiff’s claims against Public Partnerships LLC (“PPL”) and Public Consulting Group, Inc. (“PCG”) (collectively “private defendants”), and the district court’s grant of summary judgment to Washington Governor Inslee and Secretary Strange of the Department of Social and Health Services (collectively “state defendants”), in plaintiff’s action alleging that defendants violated her First and Fourteenth Amendment rights and engaged in the willful withholding of her wages in violation of state law.
Plaintiff is an individual provider (“IP”) of in-home care for her disabled son. Under Washington law, IPs are considered public employees for the purpose of collective bargaining, and they are represented by Service Employees International Union 775 (“SEIU”). Plaintiff did not join the union, but on two occasions the State withheld dues from her paycheck.
The panel held that plaintiff did not have standing to bring any claims for prospective relief. The panel further held that, although the district court erred in holding that PPL and PCG were not state actors, plaintiff had not alleged facts sufficient to support a Fourteenth Amendment due process claim or a claim for violation of state law.
Plaintiff argued that the district court incorrectly concluded that she lacked standing to seek prospective relief. Because plaintiff’s claim was procedural and need not meet “all the normal standards” for standing, Lujan v. Defs. of Wildlife, 504 U.S. 5545, 572 n. 7 (1992), the panel held that she did have standing to seek declaratory and injunctive relief against both the State and private defendants. Procedural rights are special, and a plaintiff can assert a procedural right without establishing all the normal standards for redressability and immediacy. The panel held that under the Fourteenth Amendment plaintiff had a procedural right to due process. Given that plaintiff already had union dues erroneously withheld from her paycheck twice and remained employed with the State and therefore at risk of additional unauthorized withholdings, the risk of future injury was sufficiently real to meet the low threshold required to establish procedural standing.
Plaintiff alleged that PPL and PCG violated her Fourteenth Amendment rights because they deprived her of her liberty interest under the First Amendment without adequate procedural safeguards. Viewing the complaint favorably, as required at the motion to dismiss stage, the panel held that plaintiff alleged sufficient facts to establish that PPL and PCG can be considered state actors for the purpose of her 42 U.S.C. § 1983 action. Plaintiff met both parts of the two-prong test for determining whether state action exists. First, plaintiff’s deprivation was caused by the private defendants’ actions under Wash. Rev. Stat. § 41.56.113. Second, the private defendants can be considered state actors under the nexus test. The withholding of union dues from an IP’s paycheck was an affirmative obligation of the State. The State directed the private defendants to withhold dues and provided them with a list of individuals from whom dues should be withheld. As a result, the responsibility for withholding union dues was more properly ascribed to the government than to the private defendants, and the private defendants should be treated as state actors.
The panel held that because the plaintiff did not allege facts sufficient to demonstrate that she was deprived of a liberty interest, her Fourteenth Amendment claim against the private defendants and the State failed. Plaintiff did have a liberty interest as a nonmember of the union in not being compelled to subsidize the union’s speech through unauthorized dues. But she has not shown that either the state or the private defendants intended to withhold unauthorized dues and thus deprive her of that interest. The defendants’ reliance on the union’s representations in the mistaken belief that they were accurate did not rise to the level of a due process violation. Any injury that plaintiff suffered because of the union’s misrepresentations was properly addressed by pursuing a state law claim against the union, not a Fourteenth Amendment claim against the State or the private defendants.
The panel held that there was no basis for plaintiff’s final claim that the 2018 dues deduction constituted a willful withholding of her wages by PPL in violation of Wash. Rev. Code § 49.52.050. PPL was not, and could not be considered, plaintiff’s employer or an agent of her employer under the statute. Nor could plaintiff demonstrate that PPL’s withholding of her dues was willful. Therefore, the district court did not err in dismissing the claim.
Bills Signed by Governor (9/19/22)
AB 2777 by Assemblymember Buffy Wicks (D-Oakland) – Sexual assault: statute of limitations
AB 2955 by the Committee on Labor and Employment – Worker classification: commercial fishing industry
Bills Signed and Vetoed by Governor (9/18/22)
AB 1722 by Assemblymember Jim Cooper (D-Elk Grove) – Public employees’ retirement: safety members: industrial disability retirement
SB 2188 by Assemblymember Bill Quirk (D-Fremont) – Discrimination in employment: use of cannabis
AB 2556 by Assemblymember Patrick O’Donnell (D-Long Beach) – Local public employee organizations
AB 2735 by Assemblymember Adam Gray (D-Merced) – Peace officers: deputy sheriffs
AB 1714 by Assemblymember Jim Cooper (D-Elk Grove) – Excluded employees: binding arbitration. A veto message can be found here
SB 1406 by Senator María Elena Durazo (D-Los Angeles) – Excluded employees: binding arbitration. A veto message can be found here
Bills Signed by Governor (9/17/22)
AB 305 by Assemblymember Brian Maienschein (D-San Diego) – Veteran services: notice
AB 325 by Assemblymember Jacqui Irwin (D-Thousand Oaks) – Veterans: discharge upgrades
AB 1715 by Assemblymember Al Muratsuchi (D-Torrance) – Space Force
SB 984 by Senator Bob Archuleta (D-Pico Rivera) – Military service: leave of absence: pay and benefits
Bills Signed by Governor (9/15-9/16/22)
AB 2204 by Assemblymember Tasha Boerner Horvath (D-Encinitas) – Clean energy: Labor and Workforce Development Agency: Deputy Secretary for Climate
SB 1397 by Senator Andreas Borgeas (R-Fresno) – Teacher credentialing: emergency teaching permits
Kaur v. Foster Poultry Farms LLC (CA5 F081786 9/14/22) WCAB | No Res Judicata or Collateral Estoppel on FEHA Claim
In this employment matter, plaintiff and appellant Gurdip Kaur (Kaur) appeals from the trial court’s grant of summary judgment in favor of her former employer, defendant and respondent Foster Poultry Farms LLC (Foster Farms), on her claims of discrimination based on disability and race/national origin, and retaliation, under the Fair Employment and Housing Act (FEHA) (Gov. Code, §§ 12900 et seq) and Labor Code section 1102.5. The principal issue on appeal is whether a decision by the Workers’ Compensation Appeals Board (WCAB) denying Kaur’s claim for disability discrimination under Labor Code section 132a has res judicata or collateral estoppel effect in the instant action. For purposes of the instant matter, we conclude it does not. The trial court’s grant of summary judgment was based on giving collateral estoppel effect to the WCAB decision. We therefore reverse the trial court’s judgment.
Bonni v. St. Joseph Health System (CA4/3 G052367A, filed 8/23/22, pub. ord. 9/14/22) Whistleblower Retaliation | Health & Saf. Code section 1278.5 | Anti-SLAPP
Plaintiff Aram Bonni is a surgeon. He sued his employers, defendants Mission Hospital Regional Medical Center and St. Joseph Hospital of Orange, as well several other related entities and physicians (collectively, the Hospitals) for retaliation under Health and Safety Code section 1278.5. Bonni alleged he made whistleblower complaints, which caused the Hospitals to retaliate against him by, among other things, suspending his medical staff privileges and initiating peer review proceedings to evaluate his privileges.
In response, the Hospitals filed an anti-SLAPP motion under Code of Civil Procedure section 425.16. They argued Bonni’s retaliation cause of action arose from the peer review proceedings, which were protected activity, and that his claims had no merit. The trial court agreed and granted the motion in its entirety. Bonni appealed. This court reversed, finding Bonni’s retaliation claim did not arise from protected activity. Our Supreme Court then granted review. It determined Bonni’s retaliation cause of action was composed of 19 distinct retaliation claims. Of these claims, it found eight arose from protected activity while the remainder did not. It remanded the matter back to this court to determine whether Bonni has shown a probability of prevailing on these eight claims.
On remand, we conclude Bonni has not met the requisite burden because the eight claims at issue are all precluded by the litigation privilege. Based on this finding and our Supreme Court’s ruling, we reverse the trial court’s order granting the Hospitals’ anti-SLAPP motion in its entirety. We direct the court on remand to enter an order granting the motion as to the eight claims at issue and denying it as to the remaining retaliation claims.
Arega v. Bay Area Rapid Transit District (CA1/3 A163266 9/14/22) FEHA Race Discrimination
Plaintiffs and appellants Nebiyat Arega, Terry Carney, Darian Caston, and Erik Freeman (collectively “Plaintiffs”) work as Cash Handlers for the Bay Area Rapid Transit District (“BART”). Each of them applied to the Cash Handler Foreworker position but were not promoted.
Plaintiffs sued BART under the California Fair Employment and Housing Act (“FEHA”) (Gov. Code, § 12900 et seq.), alleging BART discriminated against them based on race (African American) by promoting other less qualified individuals over them. The trial court entered summary judgment on Plaintiffs’ complaint in BART’s favor and entered judgment for BART. On appeal, Plaintiffs argue that the court erred in granting summary judgment because they presented sufficient evidence to create triable issues of material fact on their claims. We affirm the judgment.
Bills Signed and Vetoed by Governor (9/14/22)
AB 2848 by Assemblymember Miguel Santiago (D-Los Angeles) – Workers’ compensation: medical treatment.
SB 1294 by Senator Dave Cortese (D-San Jose) – Workforce wellness center: Santa Clara Valley Transportation Authority.
AB 1820 by Assemblymember Dr. Joaquin Arambula (D-Fresno) – Division of Labor Standards Enforcement: Labor Trafficking Unit. A veto message can be found here.
Johar v. California Unemployment Insurance Appeals Board (CA1/4 A162563 9/13/22) EDD | Voluntary Quit or Layoff
This appeal requires us to address the circumstances when an employee who leaves work to care for a sick family member may be deemed to have “left . . . her most recent work voluntarily without good cause,” thus disqualifying her from unemployment benefits under section 1256 of the Unemployment Insurance Code.
Briefly stated, the facts are these. With the agreement of her supervisor, Reena Johar, a home improvement salesperson, left work to care for a terminally ill relative, and while she was away her employer decided she had quit. She was gone about a week. Upon her return, the employer told her business was slow and gave her no new sales appointments. Johar eventually made a claim for unemployment benefits with the Employment Development Department (EDD), telling the EDD she lost her job due to a “temporary layoff.”
The employer denied laying Johar off. While conceding that she left with her supervisor’s approval, the employer advised the EDD that Johar’s failure to provide a return date or otherwise communicate with her supervisor while she was away amounted to a voluntary quit. The EDD accepted the employer’s position, found Johar ineligible for unemployment benefits, ordered reimbursement of benefits improperly paid, and imposed a penalty for willful misrepresentation in seeking benefits. An administrative law judge (ALJ) sustained the EDD’s ruling, and the California Unemployment Insurance Appeals Board (CUIAB) affirmed, finding that “Basically, [Johar] abandoned her job.”
Johar sought review in superior court by administrative mandamus petition. In response to the petition, the CUIAB confessed error for failing to consider new evidence discovered by Johar while the administrative appeal was pending. It requested a remand so the case could be reconsidered, and it acknowledged that Johar’s new evidence may lead to a decision in her favor. At the CUIAB’s invitation, the court dismissed the case without reaching the merits and remanded for further administrative proceedings. This appeal followed.
We will reverse. We conclude Johar was entitled to mandate relief on the existing administrative record. It is undisputed that she left her job in emergency circumstances with the employer’s approval, and thus for good cause. The question is what to make of the circumstances after her departure. In assessing that question, we ask who the moving party was in terminating the employment relationship, bearing in mind that an employee who leaves work for good cause is entitled to a presumption that she has not voluntarily quit. The presumption may be overcome, but only upon evidence showing the employee positively repudiated her obligation to return in clear terms. The evidence here does not meet that standard.
McCullar v. SMC Contracting, Inc. (CA3 C093295, filed 8/29/22, ord. pub. 9/13/22) Pivette Doctrine
Under California law, a strong presumption exists that a hirer of an independent contractor delegates to the contractor all responsibility for workplace safety. This is known as the Privette doctrine based on the California Supreme Court decision that first announced this principle. (See generally Privette v. Superior Court (1993) 5 Cal.4th 689.)
In this case, SMC Contracting, Inc. (SMC) hired Tyco Simplex Grinnell, Inc. (Tyco) to install an automatic fire sprinkler system for a development in South Lake Tahoe. On one date during installation, a Tyco employee, Tommy Ray McCullar, arrived at work and found the floor covered in ice. While trying to use a ladder on the ice, McCullar slipped and suffered injuries.
McCullar later sued SMC based on these events. But the trial court, relying on the Privette doctrine, granted summary judgment in SMC’s favor. Challenging this decision on appeal, McCullar’s contends the Privette doctrine does not protect SMC because SMC retained control over Tyco’s work and negligently exercised this control in a way that affirmatively contributed to his injuries. That is so, he reasons, because SMC caused the ice to form on the floor and then told him to go back to work after he notified it about the ice. Based on the Privette doctrine, and because McCullar fails to raise a triable issue of material fact, we affirm.
Betancourt v. OS Restaurant Services, LLC (CA2/8 B293625A, filed 8/25/22, ord. pub. 9/12/22) Wage & Hour
This case is before us on remand from the Supreme Court.
The Labor Code mandates an award of reasonable attorney fees to the prevailing party in any action brought for the nonpayment of wages, if any party requests attorney fees at the initiation of the action. (Lab. Code, § 218.5, subd. (a).) (Further statutory references are to the Labor Code unless otherwise specified.) Here, the trial court awarded plaintiff $280,000 in attorney fees under section 218.5, and the employer appealed the award.
The only wage and hour claims alleged and litigated by the parties were for rest break and meal period violations (§ 226.7), and claims for penalties (waiting time penalties under section 203 and wage statement violations under section 226) based on the rest break and meal period violations. In our original opinion, we held, following Kirby v. Immoos Fire Protection, Inc. (2012) 53 Cal.4th 1244, 1255 (Kirby), that an action brought for failure to provide rest breaks or meal periods (§ 226.7) is not “an ‘action brought for the nonpayment of wages’ ” within the meaning of section 218.5. (Kirby, at p. 1255.) We also held that a plaintiff could not recover penalties for waiting time and wage statement violations based on claims of rest break and meal break violations, and so could not recover attorney fees based on those penalties.
In Naranjo v. Spectrum Security Services, Inc. (2022) 13 Cal.5th 93 (Naranjo), the Supreme Court held otherwise. The court concluded that “extra pay for missed breaks constitutes ‘wages’ that must be reported on statutorily required wage statements during employment (Lab. Code, § 226) and paid within statutory deadlines when an employee leaves the job (id., § 203).” (Naranjo, at p. 102; ibid. [the extra pay is “designed to compensate for the unlawful deprivation of a guaranteed break,” but “also compensates for the work the employee performed during the break period”].) After issuance of its opinion, the Supreme Court transferred this case to us with directions to reconsider our opinion in light of Naranjo.
Having done so, we affirm the award of attorney fees.
Bax v. Doctors Med. Ctr. of Modesto (9th Cir 21-16532 9/12/22) ADA | Rehab. Act | Unruh Act
The panel affirmed the district court’s judgment, after a bench trial, in favor of Doctors Medical Center of Modesto, Inc., in an action brought by two deaf plaintiffs who alleged that the hospital failed to afford them effective communication during a series of hospital stays, in violation of Title III of the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, Section 1557 of the Affordable Care Act, and California’s Unruh Civil Rights Act.
The panel affirmed the district court’s dismissal as moot of plaintiffs’ ADA claims for injunctive relief, which were resolved by a third plaintiff’s acceptance of an offer of judgment under which the district court issued an injunction against the hospital concerning its practices for communicating with deaf patients.
As to the Section 504 Rehabilitation Act claims, the panel held that the district court properly ruled that plaintiffs failed to show that they were denied program benefits on the basis of their disabilities because they did not show that the hospital failed in its affirmative obligation to provide the auxiliary aids necessary to afford them effective communication. The panel held that the district court did not err by failing to apply “primary consideration,” an ADA Title II rule, to the Section 504 claims, because there is no evidence that Section 504 contains an implicit requirement that a covered entity give primary consideration to the requests of the individual with disabilities when determining what types of auxiliary aids to use. The panel held that the district court properly evaluated the effectiveness of the hospital’s communication methods based on a day-by-day factual context and did not give undue weight to the presence or absence of a request for an accommodation by plaintiffs. In addition, the hospital did not deprive plaintiffs of effective communication each time it relied upon note-writing, rather than an American Sign Language interpreter. And the district court did not clearly err in finding that, despite occasional difficulties with a video remote interpreting system, there was effective communication between plaintiffs and the hospital.
The panel next addressed ACA Section 1557’s provision that “an individual shall not, on the ground prohibited under . . . [the Rehabilitation Act], be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any health program or activity, any part of which is receiving Federal financial assistance.” On September 8, 2015, the Department of Health and Human Services proposed a rule applying ADA Title II’s effective communication standards, including the primary consideration rule, to Title III entities like the hospital. This rule did not become effective until after one plaintiff’s hospitalization. The panel declined to hold, through an application of Skidmore deference to the then-proposed rule, that the primary consideration rule governed the plaintiff’s ACA claim.
Because plaintiffs’ ACA claims were otherwise subject to the same analysis as their Section 504 claims, the panel held that the district court did not err in concluding that plaintiffs failed to establish a violation of Section 1557. Because plaintiffs did not establish that the hospital engaged in any disability discrimination, their California Unruh Act claims also failed.
The panel addressed in a concurrently filed memorandum disposition plaintiffs’ contentions that the district court’s judgment should be reversed because it was based on clearly erroneous factual findings.
Bills Signed by Governor (9/9/22)
AB 1643 by Assemblymember Robert Rivas (D-Salinas) will create an advisory committee to inform a study on the effects of extreme heat on California’s workers, businesses and economy.
AB 2420 by Assemblymember Dr. Joaquin Arambula (D-Fresno) is a first-in-the-nation measure that directs the California Department of Public Health to review research on the impacts of extreme heat on perinatal health and develop guidance for safe outdoor conditions to protect pregnant workers.
Rodgers v. State Personnel Board (CA4/2 E075803 9/9/22) State Personnel Board/Due Process
Department of Corrections and Rehabilitation and Leslie Wagley for Respondent and Real Party in Interest.
Steven Rodgers is a correctional sergeant employed by the Department of Corrections and Rehabilitation (CDCR). He appeals the denial of his writ petition seeking to set aside the State Personnel Board’s (SPB) decision to reduce his salary by 10 percent for two years as a penalty for an incident that occurred in July 2017 while he was supervising a contraband surveillance watch shift at Pelican Bay State Prison.
Rodgers argues the factual findings the SPB adopted after his administrative hearing are (i) not supported by substantial evidence and (ii) significantly different from those alleged in the notice of adverse action (NOAA), and as a result, SPB’s decision violated his due process right to notice of the charges against him. We agree with his second contention and therefore reverse.
MacIntyre v. Carroll College (9th Cir. 21-35642 9/8/22) Employment Discrimination/Title IX
The panel reversed the district court’s summary judgment in favor of the defendant in a Title IX retaliation suit and remanded.
Bennett MacIntyre sued Carroll College, alleging that it refused to renew his contract as a golf coach after he complained about gender inequity at the college’s athletic department. The district court ruled that MacIntyre failed to make the prima facie case that the nonrenewal of the contract was an adverse employment action.
The panel reversed, holding that the refusal to renew a contract may be an adverse employment action for a Title IX retaliation claim because it could deter a reasonable employee from reporting discrimination. The panel remanded the case to the district court to consider Carroll College’s alternative bases for summary judgment.
Aguilar v. Walgreen (9th Cir. 21-16563, 21-16627 9/7/22) Wage & Hour Jurisdiction/Collateral Order Doctrine
The panel dismissed the appeal for lack of jurisdiction and denied appellants’ request for mandamus relief in an action challenging two district court orders in a class action by a group of Walgreens “store managers” against Walgreens Co.
The appeal was brought in the name of purported clients of the law firms of Gallo LLP and Wynne Law Firm (“Gallo/Wynne”). Gallo/Wynne originally sought to represent a putative class of Walgreen’s store managers in the San Francisco Superior Court in a wage and hour action (the Morales action). A different group of attorneys from the firms of Miller Shah LLP and Edgar Law Firm LLC (“Miller/Edgar”) filed a substantially similar wage and hour action on behalf of Walgreen’s store managers in the Eastern District of California (the Caves action). The San Francisco court in the Morales action granted a stay in favor of the Caves action. Gallo/Wynne sought to encourage putative class members in the Caves action to instead join a separate “mass action” to be filed by Gallo/Wynne as Gallo/Wynne clients. After a class settlement in the Caves action was preliminarily approved, but before the opt-out deadline, Gallo/Wynne sent a Letter to certain putative Caves class members urging them to opt out of the proposed Caves settlement. The district court issued an order granting Miller/Edgar’s ex parte application for Corrective Notice to the allegedly misleading Letter, and invalidated all Gallo/Wynne procured opt-outs from the Caves action. The district court issued a second order granting Walgreen’s motion to modify the scope of the Corrective Notice to be sent to all Gallo/Wynne procured Caves opt-outs. Appellants are purported clients of Gallo/Wynne, and they appeal these two orders.
This court has “jurisdiction of appeals from all final decisions of the district courts of the United States.” 28 U.S.C. § 1291. Under the Supreme Court’s collateral order doctrine, a final decision in § 1291 also includes a narrow class of decisions that do not terminate the litigation where an order meets the three conditions of conclusiveness, separateness, and effective unreviewability. Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 108 (2009).
The panel held that the two orders were amenable to review after final judgment, and this placed them outside of the third collateral order requirement: effective unreviewability. As to the first order, appellants cited no caselaw establishing that opt-out invalidation orders were not amenable to review after final judgment. Likewise, Appellants identified no credible interests that would be lost through application of a final judgment requirement, and the Corrective Notice did not eviscerate the Appellants’ right to counsel. The challenged orders did not place any restrictions on Gallo/Wynne’s ability to communicate with the individuals subject to the district court’s opt-out invalidation order or Corrective Notice, there was no irreparable injury at stake in this case, and appellants can fully remedy any injury they suffered by way of the district court’s orders after a final judgment is reached.
In the alternative, Appellants asserted that if there was no jurisdiction under the collateral order doctrine, the panel should issue a writ of mandamus. Under the five factors prescribed by Bauman v. United States District Court, 557 F.2d 650, 654-55 (9th Cir. 1977), for mandamus analysis, the panel held that the dispositive third factor–that the district court order is clearly erroneous as a matter of law– was not met here. The panel, therefore, declined to grant mandamus relief to appellants.
County of San Joaquin v. Public Employment Relations Bd. (CA3 C094069 9/7/22) Strike/Accrued Leave and Return to Work
The County of San Joaquin (County) filed a petition for writ of review relief in this court following a decision of the Public Employment Relations Board (Board), in which the Board found the County interfered with and discriminated against the protected activity of the California Nurses Association (Nurses) and its registered nurse members (members). Specifically, the Board found the County’s policy prohibiting members from returning to work after a noticed strike based on the County’s contract with a strike replacement company containing a minimum shift guarantee for replacement workers was conduct inherently destructive to protected activity. The Board then announced and applied a new test providing for a defense to the County’s conduct of threatening and implementing the policy and determined the County could not meet the standard set forth in the test. The Board also found the County’s refusal to permit members from using accrued leave for the time the members were prohibited from returning to work and the County’s determination the absences were unauthorized, thereby subjecting members to discipline, was conduct inherently destructive to protected activity. Accordingly, the Board ordered several remedies, including that the County allow members to use accrued leave for the time they were prohibited from returning to work and for similar absences in the future.
We granted the County’s petition for writ of review relief and issued a writ of review. The County challenges several of the Board’s legal, factual, and remedial findings. After considering all of the briefs filed in this case, we affirm the Board’s decision in all respects.