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Bill Signed by Governor (10/5/17)


  • AB 450 by Assemblymember David Chiu (D-San Francisco) - Employment regulation: immigration worksite enforcement actions.

  • AB 699 by Assemblymember Patrick O'Donnell (D-Long Beach) - Educational equity: immigration and citizenship status.

  • SB 156 by Senator Joel Anderson (R-Alpine) - Military and veterans: transition assistance: citizenship.

  • SB 799 by Senator Jerry Hill (D-San Mateo) – Nursing (new report on employers voluntarily reporting on disciplined nurses)


Bills Signed by Governor (10/4/17)


  • AB 317 by Assemblymember Cecilia Aguiar-Curry (D-Winters) – Napa County: farmworker housing.

  • SB 33 by Senator Bill Dodd (D-Napa) – Arbitration agreements.

Bills Signed by Governor (10/3/17)


  • AB 226 by Assemblymember Sabrina Cervantes (D-Corona) – Teacher credentialing: spouses of active duty members of the Armed Forces: expedited application process.

  • SB 306 by Senator Robert M. Hertzberg (D-Van Nuys) – Retaliation actions: complaints: administrative review.


Epic Systems Corp. v. Lewis, Ernst & Young v. Morris, NLRB v. Murphy Oil USA, Inc. (US 16-285, 16-300, 16-307, transcripts of consolidated oral argument 10/2/17) Arbitration

  • Whether an agreement that requires an employer and an employee to resolve employment-related disputes through individual arbitration, and waive class and collective proceedings, is enforceable under the Federal Arbitration Act, notwithstanding the provisions of the National Labor Relations Act.


  • Whether the collective-bargaining provisions of the National Labor Relations Act prohibit the enforcement under the Federal Arbitration Act of an agreement requiring an employee to arbitrate claims against an employer on an individual, rather than collective, basis.


  • Whether arbitration agreements with individual employees that bar them from pursuing work-related claims on a collective or class basis in any forum are prohibited as an unfair labor practice under 29 U.S.C. 158(a)(1), because they limit the employees' right under the National Labor Relations Act to engage in "concerted activities" in pursuit of their "mutual aid or protection," 29 U.S.C. 157, and are therefore unenforceable under the saving clause of the Federal Arbitration Act, 9 U.S.C. 2.


Bill Signed by Governor (10/2/17)


  • SB 295 by Senator William W. Monning (D-Carmel) – Farm labor contractors: sexual harassment prevention.


Bill Signed by Governor (9/30/17)

  • SB 418 by Senator Ed Hernandez (D-West Covina) – Public contracts: skilled and trained workforce.


Bills Signed by Governor (9/28/17)


  • AB 415 by Assemblymember David Chiu (D-San Francisco) – CalFresh: employment social enterprises.

  • AB 563 by Assemblymember Joaquin Arambula (D-Fresno) – CalFresh Employment and Training program.

  • AB 579 by Assemblymember Heath Flora (R-Ripon) – Apprenticeship: fire protection: firefighter preapprenticeship program.

  • SB 112 by the Committee on Budget and Fiscal Review – State government.

  • SB 282 by Senator Scott Wiener (D-San Francisco) – CalFresh and CalWORKs.


Bills Signed by Governor (9/27/17)


  • AB 326 by Assemblymember Rudy Salas Jr. (D-Bakersfield) – State Board of Barbering and Cosmetology: physical and sexual abuse awareness training.

  • AB 1149 by Assemblymember Joaquin Arambula (D-Fresno) – Workforce investment boards: funding.

  • SB 658 by Senator Scott Wiener (D-San Francisco) – Jury selection.

Lopez v. Friant & Assoc. (CA1/1 A148849 9/26/17) PAGA Civil Penalties


Plaintiff Eduardo Lopez filed this action seeking recovery of civil penalties under the Labor Code Private Attorneys General Act of 2004 (PAGA; Lab. Code, § 2698 et seq.) for his employer’s failure to include required information on itemized wage statements.  The trial court granted summary judgment in the employer’s favor on the basis that the uncontroverted evidence showed the employer’s omission was not knowing or intentional within the meaning of section 226, subdivision (e)(1) (section 226(e)(1)).  Because plaintiff’s claim for civil penalties is governed by section 2699 and not section 226(e)(1), we reverse the judgment.


Levi v. Regents of the University of Calif. (CA4/1 D069526 9/26/17) Discrimination, Harassment & Retaliation/Whistleblower Protection Act


Dr. Leah Levi, a neuro-ophthalmologist, appeals from a summary judgment in favor of her former employer, the Regents of the University of California (Regents), and Dr. Robert Weinreb, the chair of the department of ophthalmology at the University of California, San Diego (University).  Levi asserted various causes of action against the Regents and Weinreb related to discrimination, harassment, retaliation, and due process violations.  The retaliation claims alleged protected conduct under both California's Whistleblower Protection Act (Gov. Code, § 8547 et seq. (CWPA)) and Fair Employment and Housing Act (Gov. Code, § 12900 et seq. (FEHA)).


Levi contends the trial court granted summary judgment based on its mistaken application of the law.  She argues she raised factual issues as to each of her causes of action, including (1) whether she engaged in a protected activity under the FEHA and whether that activity was connected to an adverse employment action; (2) whether she made a protected disclosure of improper governmental activity or a condition threatening the health and safety of the public to support her CWPA retaliation claim; (3) whether the Regents' proffered nondiscriminatory reasons for taking adverse employment actions against her were merely a pretext; (4) whether she was subjected to unwelcome conduct due to her gender that was severe enough or sufficiently pervasive to alter the conditions of her employment; (5) whether the Regents took reasonable steps to prevent discrimination, retaliation, and harassment; (6) whether the Regents and Weinreb denied her due process by failing to issue reports on grievances she had filed, failing to provide her notice before reducing her salary and appointment, and failing to provide her an opportunity to cure deficiencies and return to good standing; and (7) whether the Regents and Weinreb interfered with her constitutional and statutory rights by threats, intimidation, or coercion.  We conclude Levi raised triable issues of fact sufficient to defeat summary judgment on her second cause of action for retaliation under the CWPA and sixth cause of action for due process violations.  Accordingly, we reverse the trial court's order granting summary judgment and direct the court to grant Weinreb and the Regents' alternative motion for summary adjudication on Levi's remaining causes of action for retaliation under the FEHA, gender discrimination, gender harassment, failure to prevent harassment, discrimination, retaliation, and Tom Bane Civil Rights Act (Civ. Code, § 52.1 (Bane Act)) violations.


Bills Signed by Governor (9/26/17)


  • AB 411 by Assemblymember Richard H. Bloom (D-Santa Monica) – Witness testimony: therapy and facility dogs.

  • AB 618 by Assemblymember Evan Low (D-Campbell) – Local Agency Public Construction Act: job order contracting: school districts: community college districts.

  • AB 1325 by the Committee on Public Employees, Retirement, and Social Security – State teachers’ retirement.


Bills Signed by Governor (9/25/17)


  • AB 1102 by Assemblymember Freddie Rodriguez (D-Pomona) – Health facilities: whistleblower protections.

  • AB 1243 by Assemblymember Joaquin Arambula (D-Fresno) – Public Employees’ Retirement System: replacement benefits plan.

Howard v. City of Coos Bay (9th Cir. 14-35506 9/25/17) Oregon Whistleblower Act/First Amendment


The panel affirmed the district court’s summary judgment in an action brought under 42 U.S.C. § 1983 and Oregon state law by a former employee of the City of Coos Bay, Oregon, who alleged that the City violated the First Amendment and state law by refusing to rehire her as a Finance Director.


The City terminated plaintiff from her position as Finance Director in 2008. In 2009, she filed her first lawsuit against the City alleging that her termination was retaliatory (Hunter I). While that lawsuit was pending, plaintiff’s former position became vacant and she applied for the job. Her application was rejected in 2011. After a jury ruled in plaintiff’s favor in Howard I, plaintiff filed a second action against the City in 2012, alleging that the City retaliated against her for her first lawsuit when it rejected her employment application (Howard II).


The panel first held that plaintiff’s claims were not barred by claim preclusion because plaintiff’s retaliation claim in the present suit arose from events that occurred after she filed her complaint in Howard I . The panel held that claim preclusion does not apply to claims that accrue after the filing of the operative complaint. The panel held, however, that issue preclusion barred plaintiff from recovering economic damages which she has already received as a result of Howard I —namely the loss of the salary and benefits she could have earned as the City’s Finance Director. Nevertheless, because plaintiff presented a new request for punitive damages and because she may have been able to demonstrate new non-economic damages, the panel considered the merits of her suit against the City.


The panel held that no reasonable jury could find that plaintiff’s first suit was a substantial reason for the City’s refusal to consider her for the Finance Director position in 2011. The panel held that rightly or wrongly, because of her previous termination in 2008, the City had demonstrated that it would have rejected plaintiff’s application in 2011, irrespective of her suit.


The panel held that plaintiff’s claim under the Oregon Whistleblower Act failed as a matter of law. Thus, the panel rejected plaintiff’s assertion that the Act should be construed analogously to Title VII of the United States Code, and permit claims of retaliation brought by former employees.


Bill Signed by Governor (9/23/17)


AB 1309 by Assemblymember Ken Cooley (D-Rancho Cordova) – Employment without reinstatement: failure to enroll or report: fee.


Vallejo Police Officers Assn. v. City of Vallejo (CA1/2 A144987, filed 8/22/17, pub. ord. 9/21/17) Meyers-Milias-Brown Act


The Vallejo Police Officers Association (VPOA) petitioned the superior court for a writ of mandate alleging that the City of Vallejo (City) engaged in bad-faith bargaining in violation of state law and then unilaterally imposed contract terms that impaired VPOA members’ vested rights to retiree medical benefits that covered insurance premiums up to the full cost of a Kaiser health plan.  The superior court denied the petition, concluding that VPOA had not shown its members had a vested right to the full Kaiser premium and that the City had not bargained in bad faith; the court therefore declined to order the City to start new contract negotiations or to reinstate retirement medical benefits at the level previously provided to VPOA members.  We will affirm.


Salyers v. Metropolitan Life Ins. Co. (9th Cir. 15-56371 9/20/17) ERISA


The panel reversed the district court’s judgment in favor of the defendant following a bench trial in an ERISA action concerning life insurance.


The plaintiff bought a $250,000 life insurance policy on her husband, but the defendant insurer paid out only $30,000 because the plaintiff had not submitted evidence of insurability with her coverage election, as required under the ERISA-governed benefits plan. The panel held that the defendant waived the evidence of insurability requirement because it did not ask the plaintiff for a statement of health, even as it accepted her premiums for $250,000 in coverage. The panel held that, under the federal common law of agency, the knowledge and conduct of the policyholder-employer could be attributed to the defendant. The panel remanded the case to the district court with instructions to enter judgment in favor of the plaintiff for the amount of the $250,000 policy that remained unpaid.


Roybal v. Toppenish Sch. Dist. (9th Cir. 15-35541 9/20/17) Due Process/First Amendment Retaliation


On interlocutory appeal in a 42 U.S.C. § 1983 action, the panel reversed the district court’s order denying qualified immunity to defendants on plaintiff’s due process claim, and dismissed, for lack of jurisdiction, the district court’s order denying qualified immunity to defendants on plaintiff’s First Amendment claim.


Plaintiff, a former school principal, alleged that the Toppenish School District reduced his salary without due process and retaliated against him for speaking to an attorney about his performance evaluation.


The panel held plaintiff had a protected property interest under Washington State law in the salary he received as a principal. The panel held, however, that the School District was not required under federal law to provide plaintiff with a predeprivation probable cause hearing pursuant to Washington Revised Code § 28.405.300. The panel noted that federal due process does not necessarily entitle a plaintiff to the same procedures provided by state law. In this case, the state-created protections reached beyond those guaranteed by federal law. The panel held that pursuant to Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985), plaintiff received all the process due to him when he twice received notice that the District was reassigning him and was provided with opportunities to be heard in his own defense.


The panel held that it lacked jurisdiction over the district court’s order denying qualified immunity as to the First Amendment claim because the district court had found genuine issues of material fact existed regarding the claim.The panel held, therefore, that the issue of whether the School District violated plaintiff’s First Amendment rights was categorically unreviewable on interlocutory appeal. Moreover, the panel determined that the First Amendment retaliation claim was not “inextricably intertwined” with the due process claim such that the panel could exercise pendent jurisdiction to review it.


Diego v. City of Los Angeles (CA2/1 B268266 9/14/17) Race Discrimination and Retaliation/Improper Legal Theory


The City of Los Angeles (the City) appeals from a judgment against it following a jury trial in a discrimination action brought by two officers of the Los Angeles Police Department (LAPD or the Department).  The two officers, George Diego and Allan Corrales (the Officers), respondents in this appeal, are both Hispanic.  They claim that they suffered discrimination within the Department following their involvement in a fatal shooting in March 2010.  In that incident, the Officers fired at a person they believed was threatening them with a gun, but who turned out to be a young, unarmed African-American man who was later described by his family as autistic.  The shot fired by Corrales killed the man.  The Officers claimed that they were unfairly kept out of the field (colloquially described as “benched”) after the incident, resulting in lost promotional opportunities and off-duty work, because of their race.  They also claimed that the City retaliated against them because they filed this lawsuit.


The jury found in favor of the Officers and awarded cumulative damages of almost $4 million.  The City argues on appeal that the evidence is not sufficient to support the verdict, and that the trial court therefore should have granted its motion for a directed verdict.


We agree and reverse.  The fundamental problem with the Officers’ claims is that they were based on an improper legal theory.  While the evidence that the Officers produced at trial might have been sufficient to support the theory of discrimination that they presented, that theory was legally flawed.  The Officers claimed that they suffered disparate treatment because they are Hispanic and the victim was African-American.  They relied on evidence of another shooting incident involving a Caucasian officer and a Hispanic victim, after which the officer involved was returned to field duty.  Thus, the Officers’ theory was that the jury could and should consider whether the Officers were treated differently, not simply because of their race, but because of the race of their victim.


This theory does not support the discrimination claim that the Officers brought.  In deciding whether to return the Officers to the field, the City could assess the political implications of doing so without violating employment discrimination laws.  Those laws would not permit the City to treat the Officers differently because they are Hispanic, but they did not prohibit the City from assessing the risk management implications of returning officers of any race to the streets of Los Angeles who had been involved in a fatal shooting of an innocent, unarmed and autistic African-American man.  The Officers claimed that African-American officers would have been treated differently, but they did not introduce any competent evidence to support that claim.


They also did not provide evidence sufficient to support their claim that the City retaliated against them for filing this lawsuit.  Nothing about their status changed after they filed their complaint.  Nor did they provide any evidence that the lawsuit was a motivating factor in the decision to continue withholding their field certification.  Indeed, both Officers testified that they filed this suit as a last resort after concluding that they were unlikely to be restored to the field.


We are reluctant to overturn a jury verdict and are of course cognizant of the high standard the City must meet on appeal to show that the evidence was insufficient to support that verdict.  However, as explained further below, the jury here did not have a complete picture of the governing law.  The jury was correctly told that it must find that the Officers’ race was a “substantial motivating reason” for the “adverse employment actions” that they experienced.  But the jurors were not given any instruction about whether and how they should consider the race of the victim in making this assessment.  The absence of such an instruction permitted the Officers to argue that any decision by the City based on race—including the race of the victim—was sufficient to support a verdict in their favor.  That argument was inconsistent with the law.


The record does not show that the parties requested any specific instruction on this point, and the City has not raised instructional error as a ground for appeal.  However, the City did argue in its motion for a directed verdict that a discrimination claim could not be properly based upon the City’s consideration of the race of the victim.  We conclude that the City’s motion should have been granted.


The Officers believe, and apparently the jury agreed, that they were treated unfairly as a result of broader political concerns.  But alleged unfair treatment in the workplace does not amount to an actionable discrimination claim unless the treatment is based upon the employee’s race or other protected status.  The Officers failed to prove such disparate treatment and failed to show unlawful retaliation.  We therefore reverse and remand with instructions to enter judgment in favor of the City.


Miller v. Fortune Commercial Corporation (CA2/1 B271214 9/12/17) Unruh Act/Service Dog


Joey Miller (Miller) sued defendant Fortune Commercial Corporation, the owner and operator of a chain of Seafood City markets, and several other defendants (collectively, Defendants), because, allegedly, they illegally denied him service when he tried to enter two different Seafood City stores with his service dog.  Miller alleged three causes of action:  violation of the Unruh Civil Rights Act (Civ. Code, § 51 et seq. (Unruh Act)); violation of the Disabled Persons Act (§ 54 et seq. (DPA)); and intentional infliction of emotional distress.  Defendants moved for summary judgment arguing principally that Miller’s dog was not a fully trained service animal at the time of the alleged incidents, that Miller did not bring his dog to the markets for the purpose of training her, and that in any event neither Miller, who suffers from a disability, nor his stepfather who accompanied him to the markets, were, respectively, capable or authorized to train a service dog.  The trial court granted Defendants’ motion.


On appeal, Miller argues that, at the time of the alleged incidents, his dog Roxy had received, not only obedience training, but also some meaningful training as a service animal—that is, Roxy had been trained to respond to certain symptoms of Miller’s disability (e.g., Roxy could prevent Miller from wandering away from home and getting lost) and that as a result he was permitted by law to bring Roxy into the markets.  In addition, Miller contends that he was permitted by law to take Roxy into Defendants’ markets for the purpose of training her further.


We are not persuaded by Miller’s arguments.  Accordingly, we affirm the judgment.


Bills Signed by Governor (9/11/17)


  • AB 1487 by Assemblymember Freddie Rodriguez (D-Pomona) – Public Employees’ Retirement System: limited term appointments.

  • SB 410 by Senator Janet Nguyen (R-Garden Grove) – Civil service: veterans’ hiring preference: active duty members.

  • SB 525 by Senator Richard Pan (D-Sacramento) – Public employees’ retirement.


United States ex rel. Welch v. MLF (9th Cir. 16-16070 9/11/17) Arbitration/False Claim Act


The panel affirmed the district court’s denial of the defendants’ motion to compel arbitration on the alternate ground that relator Mary Kay Welch’s False Claims Act claims did not fall within the scope of the arbitration agreement with Welch’s former employer, defendant My Left Foot Children’s Therapy, LLC.


Welch alleged that her former employer violated the federal and Nevada False Claims Acts by presenting fraudulent Medicaid claims. The United States and Nevada declined to intervene in the case and her employer moved to compel arbitration under the Federal Arbitration Act.


The panel held that this lawsuit was not arbitrable because the plain text of Welch’s arbitration agreement that she signed when she applied for employment with My Left Foot did not encompass this False Claims Act case.


United Nurses Ass’ns of Cal. v. NLRB (9th Cir. 15-71390 9/11/17) NLRA Unfair Labor Practice


The panel denied the Chino Valley Medical Center’s petition for review of the National Labor Relations Board’s order determining that Chino Valley committed unfair labor practices before and after a nurses union election in violation of the National Labor Relations Act (“NLRA”), except as to an incidental petitioning argument that the panel dismissed for lack of jurisdiction; enforced the Board’s order; granted the United Nurses Associations of California/Union of Health Care Professionals, NUHHCE, AFSCME, AFL-CIO (the “Union”)’s petition for review; and remanded for the Board to address rescission of Chino Valley’s written policy during the compliance stage.


The panel held that Chino Valley’s due process argument – that the administrative law judge allegedly exhibited anti-employer bias – was without merit. Because Chino Valley did not otherwise contest the vast majority of the Board’s unfair labor practices findings, the panel summarily enforced the portions of the Board’s order that Chino Valley opposed only on due process grounds.


The panel next considered Chino Valley’s substantive challenges to two unfair labor practices. First, the panel held that substantial evidence supported the finding that Chino Valley committed an unfair labor practice in violation of Sections 8(a)(1) and (3) of the NLRA by firing Ronald Magsino for his union activity because the law and the record supported the finding that Magsino’s firing was pretextual and that he was not a supervisor (where, generally, the NLRA protects the rights of employees but not supervisors). Second, the panel held that Chino Valley violated Section 8(a)(1) of the NLRA by serving subpoenas seeking information about confidential union activity protected by Section 7 of the NLRA, including communications with Union representatives and signed authorization cards.


The panel held that the Noerr-Pennington doctrine, which provides that concerted efforts to petition the government that would otherwise be illegal may nonetheless be protected by the First Amendment’s Petition Clause where certain criteria were met, did not immunize Chino Valley from unfair labor practice liability.


The panel held that Chino Valley’s unfair labor practices warranted the Board’s remedy that Chino Valley schedule meetings of all its employees, during paid work time, so that the Board’s Notice to Employees could be read to them with a Union representative present. Rejecting Chino Valley’s challenges to the remedy, the panel held that nothing in the NLRA protected an employer from the embarrassment it might experience as a byproduct of the Board’s remedy, and no authority required a more detailed analysis than the Board or administrative law judge provided in these cases.


The panel turned to the Union’s petition challenging the portion of the administrative law judge’s decision that declined to address whether Chino Valley’s written policy should be rescinded. The panel granted the Union’s petition and remanded to the Board for a resolution of that narrow issue at the compliance stage of the proceeding because due process did not bar the relief the Union sought – rescission of the written policy.


Hardie v. NCAA (9th Cir. 15-55576 9/11/17) Civil Rights Act/Title II/Disparate Impact in Coaching


The panel affirmed the district court’s summary judgment in favor of the National Collegiate Athletic Association (“NCAA”) in an action brought by Dominic Hardie, who is African-American, alleging that the NCAA’s policy of excluding anyone with a felony conviction from coaching at NCAA-certified youth athletic tournaments violated Title II of the Civil Rights Act of 1964. Title II of the Civil Rights Act of 1964 prohibits racial discrimination in places of public accommodation. The district court granted summary judgment for the NCAA on the ground that disparate-impact claims were not cognizable under Title II.


The panel did not decide whether Title II encompassed disparate-impact claims.


The panel held that even if disparate-impact claims were recognizable under Title II, Hardie had not shown that an equally effective, less discriminatory alternative theory to the NCAA’s felon-exclusion policy existed, as was required under the three-step analysis for disparate-impact claims set forth in Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989).


Concurring in part and concurring in the judgment, District Judge Faber agreed with the court that under Title II, Hardie had not stated a cognizable claim. In his view, Title II’s text did not recognize disparate-impact liability, and the panel should have said so. Judge Faber also wrote that even if Title II had authorized disparate-impact liability, the business-necessity defense would immunize the NCAA’s policy; and the majority’s application of extraneous evidence was misplaced.


CA Correctional Peace Officers Assn v. Dept. of Corrections (CA3 9/8/17 C078723) USERRA/SPB Jurisdiction


The California Correctional Peace Officers Association (the Association) brought a grievance on behalf of correctional officer Sammie Gardner, alleging a violation of his rights under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) (38 U.S.C. §§ 4301 et seq.).  The grievance proceeded through the four-step process set forth in the memorandum of understanding (MOU) between the Association and the California Department of Corrections and Rehabilitation (Corrections).  At the fourth step, a hearing before the Department of Personnel Administration (Department), the Department granted the grievance.  When Corrections refused to comply with the Department’s decision, the Association petitioned for a writ of mandate (Code Civ. Proc., § 1085) to compel compliance, the enforcement provided for in the MOU.  The trial court denied the petition, adopting Correction’s position, first raised in the trial court, that the Department lacked jurisdiction to decide the grievance because the State Personnel Board (SPB) had exclusive jurisdiction over appointments and the employment status of civil service employees and the foundation of the Department’s decision was the finding that Gardner was an employee of Corrections in November 2001. 


The Association appeals, contending the grievance at issue is not under the exclusive jurisdiction of the SPB because it is not a merit-based grievance.  We agree.  We conclude the grievance at issue did not implicate the merit principle, set forth in the California Constitution, and therefore the SPB did not have exclusive jurisdiction.  The MOU expressly provided that a grievance based on a reemployment USERRA claim, the claim actually decided, be appealed to the Department.  Further, by acquiescing in the grievance procedure used, Corrections forfeited any claim that it was the wrong procedure.  We reverse the judgment.


King v. Blue Cross and Blue Shield (9th Cir. 15-55880 9/8/17) ERISA


The panel reversed the district court’s grant of summaryjudgment in favor of the defendants in an ERISA action regarding the denial of a welfare benefit plan participant’s claim for medical benefits on the basis of the plan’s lifetime benefit maximum.


The panel held that ERISA, as amended by the Patient Protection and Affordable Care Act, does not ban lifetime benefit maximums for certain retiree-only plans.


The panel held that the defendants violated ERISA’s Statutory and regulatory disclosure requirements by providing a faulty summary of material modifications describing changes to the lifetime benefit maximum. The panel concluded that the summary did not reasonably apprise the average plan participant that the lifetime benefit maximum continued to apply to the retiree plan.


The panel also held that genuine disputes of material fact precluded summary judgment on claims of breach of fiduciary duty in the failure to comply with ERISA’s disclosure requirements. The panel held that a defendant claims administrator was a fiduciary because it had authority to grant, deny, and review benefits claims, and there was a genuine dispute of material fact about whether this defendant misled the ERISA plan participant.


The panel remanded the case to the district court.


Cortez v. Doty Bros. Equipment Co. (CA2/7 B275255M, filed 8/15/17, pub. ord. 9/1/17, mod. 9/6/17) Arbitration



            It is ordered that the opinion filed herein on August 15, 2017 be modified as follows:


Delete footnote 1, at pages 8 to 9, which will require renumbering of all subsequent footnotes. 


There is no change in the judgment.


Marsch v. J. Alexander’s (9th Cir. 15-15791 9/6/17) FLSA Tip Credit


The panel vacated the district court’s final orders and judgments in favor of the defendants in actions brought under the Fair Labor Standards Act by former servers and bartenders who alleged that their employers improperly claimed their tips as a credit toward the required minimum wage.


Disagreeing with the Eighth Circuit, the panel held that the Department of Labor’s interpretation, in its Field Operations Handbook, of 29 C.F.R. § 531.56(e), a regulation addressing application of the FLSA’s tip credit provision to the situation in which an employee works for an employer in two different jobs, did not merit controlling deference because the DOL’s interpretation was inconsistent with the dual jobs regulation and attempted to create de facto a new regulation. The panel held that no provision with the force of law permitted the DOL to require employers to engage in time tracking and accounting for minutes spent in diverse tasks before claiming a tip credit.


The panel held that the plaintiffs could not state a claim by alleging that discrete “related” tasks or duties, which were performed intermittently over the course of the day and were intermingled with their duties directed at generating tips, comprised a dual job when aggregated together over the course of a workweek. The plaintiffs also could not state a claim by alleging the performance of “unrelated” duties that were similarly dispersed and generally assigned.


The panel vacated the district court’s final orders and judgments and remanded to allow the plaintiffs an opportunity to propose new amended complaints in light of the panel’s opinion.


Concurring and dissenting, Judge Paez wrote that he would follow the Eighth Circuit and defer to the DOL’s interpretation of the regulation, 29 C.F.R. § 531.56(e). Judge Paez wrote that the DOL’s guidance was entitled to deference because it interpreted the DOL’s own ambiguous regulation and was neither plainly inconsistent with that regulation nor erroneous. Judge Paez would vacate and remand for further proceedings on whether the defendants violated the FLSA by paying their employees well below minimum wage for untipped work.


Nakai v. Friendship House Assn. of American Indians, Inc. (CA1/1 A147966, filed 8/10/17, pub. ord. 9/5/17) FEHA Marital Status Discrimination/Duty to Investigate


For over 20 years, plaintiff Orlando Nakai (Orlando ) was employed by Friendship House Association of American Indians, Inc. (Friendship House), a drug and alcohol rehabilitation program providing treatment services to Native Americans.  His employment was terminated by the program’s CEO, who also happened to be his mother-in-law, after his wife informed the CEO that Orlando had a gun and was angry at Friendship House employees and she had obtained a restraining order.  Orlando then filed this action for wrongful termination, claiming discrimination on the basis of his marital status and that Friendship House had failed to conduct a reasonable investigation prior to discharging him.  The trial court granted summary judgment in favor of defendants, ruling Orlando had failed to establish a prima facie case of marital status discrimination and failed to demonstrate his employer had a duty to investigate.  We affirm.


Cortez v. Doty Bros. Equipment Co. (CA2/7 B275255, filed 8/15/17, pub. ord. 9/1/17) Arbitration


Gabriel Cortez sued his former employer Doty Bros. Equipment Company for Labor Code and wage and hour violations on behalf of himself and a putative class of employees and former employees.  Cortez’s complaint included a related representative claim under the Labor Code Private Attorneys General Act of 2004 (PAGA) (Lab. Code, § 2698 et seq.).  On September 19, 2014 the superior court granted Doty Bros.’ petition to compel arbitration of Cortez’s individual claims pursuant to an arbitration provision in the collective bargaining agreement (CBA) governing his employment and severed and stayed his PAGA claim, which was not subject to arbitration.  The court reserved questions concerning the arbitrability of the class claims for the arbitrator.  On November 19, 2014 we summarily denied Cortez’s petition for a writ of mandate challenging the court’s order compelling arbitration. 


Cortez and Doty Bros. then stipulated to allow the superior court, rather than the arbitrator, to determine the arbitrability of the class claims.  On March 23, 2015, after substantial briefing and a hearing on this question, the court dismissed the class claims as unauthorized under the CBA.  On April 1, 2015 Cortez filed a notice of appeal purporting to appeal from the March 23, 2015 order dismissing his class claims and the September 19, 2014 order compelling arbitration of his individual claims.  Cortez argued in his appellate briefs that this court had jurisdiction to review both rulings under the death knell doctrine. 


While Cortez’s appeal was pending, the appellate courts in Munoz v. Chipotle Mexican Grill, Inc. (2015) 238 Cal.App.4th 291, 310 (Munoz) and Miranda v. Anderson Enterprises, Inc. (2015) 241 Cal.App.4th 196, 201-202 (Miranda) held the death knell doctrine did not apply to the denial of class certification or dismissal of class claims while a plaintiff’s PAGA claim remained pending in the trial court.  Concerned about the viability of his initial appeal, Cortez voluntarily dismissed his PAGA claim with prejudice on March 30, 2016 and filed a second notice of appeal on May 20, 2016, again identifying the September 19, 2014 order compelling arbitration and the March 23, 2015 order dismissing all class claims as the orders subject to appellate review.  We consolidated the two appeals. 


Cortez contends this court has jurisdiction under the death knell doctrine to review the March 2015 dismissal of his class claims either because the outstanding PAGA claim did not defeat that order’s appealability under the death knell doctrine or because he removed any bar to appellate jurisdiction when he dismissed his PAGA claim in March 2016 and filed a new notice of appeal.  Cortez also contends the September 2014 order compelling arbitration is an interim order affecting the class’s substantial rights and thus is reviewable on appeal from the order dismissing the class claims under Code of Civil Procedure section 906.  Alternatively, he requests we treat his consolidated appeal as a petition for writ of mandate, revisit our summary denial of his prior writ petition and address the merits of both the court’s order compelling arbitration of his individual claims and the dismissal of his class claims. 


On the merits Cortez argues his statutory claims were not encompassed by the terms of the arbitration agreement in the CBA and, even if they were, the court erred in dismissing the class claims because the right to pursue collective action—including prosecution of a class action in an arbitral forum—is a nonwaivable protected right under the National Labor Relations Act (NLRA) (29 U.S.C. § 151 et seq.).


Although not fully identified by the parties in their briefs, Cortez’s appeal poses several difficult jurisdictional questions, in particular, the effect of Cortez’s dismissal of his PAGA claim on the appealability of the earlier order dismissing the class claims, including whether a plaintiff’s voluntary action can create an appealable order under the death knell doctrine and whether the second notice of appeal from an order entered more than a year before was timely; and the applicability of Code of Civil Procedure section 906 to an order made appealable under the judicially created death knell doctrine rather than pursuant to Code of Civil Procedure section 904.1.  We resolve none of those issues.  Rather, in light of the uncertainty of the appealability of the orders challenged by Cortez and the absence of any delay or prejudice our intervention at this stage would cause, we find this an appropriate case in which to exercise our discretion to treat the consolidated appeal as a petition for writ of mandate and reach the merits of the superior court’s orders compelling arbitration of Cortez’s individual claims and terminating the class claims.


We grant Cortez’s petition in part, finding Cortez’s cause of action under the Labor Code for Doty Bros.’ failure to timely pay wages upon his separation from employment (Lab. Code, § 203) (sixth cause of action) and his unfair competition action based on that alleged statutory violation (Bus. & Prof. Code, § 17200) (seventh cause of action) are not encompassed by the arbitration provision in the CBA.  In all other respects, we deny the petition, concluding the remaining causes of action are subject to arbitration, and the court’s termination of class claims proper on the ground the CBA does not authorize classwide arbitration.

Stoetzl v. State of California (CA1/4 A142832 8/31/17) Overtime Pay


Plaintiffs are current and former correctional peace officers who work or worked at various state correctional facilities.  They brought these coordinated class actions alleging they were improperly denied pay for time they spent under their employer’s control before and after their work shifts.  Ruling that plaintiffs’ entitlement to overtime pay is controlled by federal, rather than California, law, the trial court entered judgment for defendants.   We shall reverse the judgment in part as to the subclass of unrepresented employees and affirm as to the subclass of represented employees.


Aviles-Rodriguez v. Los Angeles Community College Dist. (CA2/4 B278863 8/29/17) DFEH One-Year Limitation Period


This case calls upon us to decide an issue previously addressed, though not definitively decided, by our Supreme Court.  In Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479 (Romano), the court held that under the Fair Employment and Housing Act (FEHA), Government Code section 12900 et seq., a party alleging that a discriminatory act led to the termination of his or her employment has until one year from the date the employment terminated to file an administrative claim.  Romano involved an at-will employee; the instant case involves a professor denied tenure.  These factual distinctions arguably are of legal significance.  Nevertheless, based on our Supreme Court’s criticism of a United States Supreme Court case involving a denial of tenure and its disapproval of a California case deemed analogous to a denial of tenure, we interpret the court’s reasoning as a directive to apply the holding of Romano to the instant case.


Appellant Guillermo Aviles-Rodriguez previously was employed by respondent Los Angeles Community College District (LACCD) as a professor.  On November 21, 2013, a tenure review committee voted to deny appellant tenure.  Following a February 26, 2014 review and final vote by the Board of Trustees, appellant received written notice on March 5 that tenure had been denied.  Before receiving notice of the Board’s final decision, appellant initiated a grievance procedure, the third and final step of which was denied by a grievance review committee on May 21, 2014.  That same month appellant allegedly contacted the Department of Fair Employment and Housing (DFEH) to discuss the filing of a claim alleging racial discrimination including, but not limited to, the denial of tenure, and was advised that he had until one year from the last day of his employment to file a complaint with the DFEH.  Appellant’s employment terminated June 30, 2014, the last day of the academic year, and on June 29, 2015, he filed his complaint with DFEH.  After being issued a right-to-sue letter, appellant filed the instant action against LACCD.  Following several demurrers, appellant filed his third amended complaint (TAC), the operative complaint.  The TAC alleged a single cause of action under the FEHA against LACCD for denial of tenure and termination based on racial discrimination. 


LACCD demurred to the TAC, arguing that appellant’s claim was barred because he failed to file his DFEH complaint within one year “from the date upon which the alleged unlawful practice . . . occurred.”  (§ 12960, subd. (d).)  It asserted the trigger date for the commencement of the one-year period was the date tenure was denied.  Relying on Romano, appellant argued he had one year from the last day of his employment to file the DFEH complaint.  The trial court sustained the demurrer without leave to amend and ordered the case dismissed. 


Were we writing on a blank slate, we might conclude that the one-year limitations period to file a DFEH complaint begins to run on the date the employee is notified of the final tenure decision.  However, although Romano did not involve a wrongful termination resulting from the denial of tenure, we read its discussion of both federal and state cases involving the denial of tenure or analogous facts as a clear directive that its holding should be applied here.  In light of Romano, we conclude the one-year limitations period for appellant to file a timely DFEH complaint began to run from the last day of his employment.  As he filed his DFEH complaint within that period, his claim was timely.  Accordingly, we reverse the judgment dismissing the TAC.


Alamillo v. BNSF Railway Co. (9th Cir. 15-56091 8/25/17) FEHA Disability Discrimination


The panel affirmed the district court’s summary judgment in favor of BNSF Railway Company in a former employee’s action alleging that BNSF terminated him from his job as a locomotive engineer in violation of the California Fair Employment and Housing Act (“FEHA”).


The panel held that the appellant failed to establish that BNSF discriminated against him base on his disability – obstructive sleep apnea (OSA) – under FEHA. The panel applied the three-step burden-shifting test in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and held that appellant’s claim failed at the first step – establishing a prima facie case of discrimination – because the record contained no evidence that appellant’s OSA was a substantial motivating reason for BNSF’s decision to terminate him. The panel also held that even if appellant had made a prima facie case of discrimination, his claim would fail at the third step because appellant had not offered evidence that BNSF’s stated reason – appellant’s history of attendance violations – was either false or pretextual. The panel concluded that BNSF did not engage in unlawful discrimination by declining to alter appellant’s disciplinary outcome, termination, based on his OSA diagnosis.


The panel held that BNSF did not violate its reasonable accommodation duty under FEHA. The panel rejected appellant’s claim that BNSF failed to engage in the interactive process after his attendance violations had already occurred, because no reasonable accommodation could have cured his prior absenteeism at that point.


Sprunk v. Prisma LLC (CA2/1 B268755 8/23/17) Waiver to Compel Arbitration/Wage and Hour Class Action


The primary issue presented in this appeal is whether a defendant in a putative class action can waive its right to compel arbitration against absent class members by deciding not to seek arbitration against the named plaintiff.  In deciding that issue, we must also consider the scope of the “futility” rule, which excuses a party in some circumstances from seeking to enforce an arbitration right when the state of the law at the time would make the effort futile.


We agree with the trial court that, under the circumstances of this case, defendant and appellant Prisma LLC, doing business as Plan B Club (Plan B) waived its right to seek arbitration by filing and then withdrawing a motion to compel arbitration against the named plaintiff, Maria Elena Sprunk, and then waiting until after a class had been certified to seek arbitration against class members.  We therefore affirm the trial court’s denial of Plan B’s motion to compel arbitration.


OTO, L.L.C. v. Kho (CA1/1 A147564 8/21/17) Arbitration/Wage Claim


Ken Kho filed a claim for unpaid wages with the California Labor Commissioner (commissioner) against his former employer, OTO, L.L.C., doing business as One Toyota of Oakland (hereafter One Toyota).  After settlement discussions failed, One Toyota filed a petition to compel arbitration.  Under the arbitration agreement, which One Toyota required Kho to execute without explanation during his employment, the wage claim would be subject to binding arbitration conducted by a retired superior court judge.  Because the intended procedure incorporated many of the provisions of the Code of Civil Procedure and the Evidence Code, the anticipated arbitration proceeding would resemble ordinary civil litigation.


The trial court denied the petition to compel.  Under Sonic-Calabasas A, Inc. v. Moreno (2013) 57 Cal.4th 1109 (Sonic II), an arbitration agreement that waives the various advantageous provisions of the Labor Code governing the litigation of a wage claim is substantively unconscionable if it fails to provide the employee with an affordable and accessible alternative forum.  The trial court concluded that the alternative anticipated by One Toyota’s arbitration agreement failed this standard because it effectively required Kho to retain counsel and did not expressly provide for him to recover his attorney fees if he prevailed.  We reverse, concluding the arbitration proceeding satisfies the Sonic II requirements of affordability and accessibility.


Moonin v. Tice (9th Cir. 15-16571 8/22/17) Section 1983/First Amendment


The panel affirmed the district court’s order denying qualified immunity to defendant Nevada Highway Patrol Major Kevin Tice and granting partial summary judgment to appellant, a Nevada Highway Patrol officer, in an action brought pursuant to 42 U.S.C. § 1983 asserting that a Nevada Highway Patrol policy, announced in an email sent by defendant Tice, violated the First Amendment.


This action arose from a dispute regarding the management of the Nevada Highway Patrol canine drug detection unit. Plaintiffs alleged that certain Nevada Highway Patrol officers sought to undermine the effectiveness of the K9 program, and that the policy announced by Tice, prohibiting officers from discussing the program with any non-departmental entity or person, was designed to prevent officers from making the problems in the K9 program known to the public.


The panel held that sweeping policy imposed by Tice’s email violated the First Amendment. The policy covered speech undertaken outside the officers’ official duties and on matters of public concern. The panel held that Tice had failed to show any past disruptions sufficient to justify the expansive policy, nor did he demonstrate that any harms anticipated were real, not merely conjectural. The panel further held that it was clearly established in 2011, when Tice sent the email, that such a broad restriction on employee speech could not survive First Amendment scrutiny. Accordingly, Tice was not entitled to qualified immunity.


The panel affirmed the district court’s grant of partial summary judgment to appellant on the First Amendment claim after concluding that the relevant facts were not in dispute and the legal issues were identical to those raised in the qualified immunity analysis.


Okorie v. Los Angeles Unified School Dist. (CA2/1 B268733 8/16/17) Anti-SLAPP


In 2015, Dioka Okorie (Okorie) sued his employer, Los Angeles Unified School District (LAUSD) and two of his supervisors, Jacqueline Hughes (Hughes) and Cynthia Jackson (Jackson) (collectively, Defendants), alleging, among other things, discrimination, harassment, and retaliation.  In response, Defendants filed a special motion to strike the complaint pursuant to section 425.16 of the Code of Civil Procedure —a so-called anti-SLAPP motion —which the trial court granted.


On appeal, Okorie and his wife, Nkeiru Okorie (collectively, Plaintiffs) advance two principal arguments.  First, they contend that the trial court erred in granting the anti-SLAPP motion because the complaint contained allegations regarding both protected and unprotected activities by the Defendants.   Second, they argue that the motion should have been denied because they demonstrated a likelihood of success on certain of their causes of action.  We disagree with both arguments and, accordingly, affirm.

Frlekin v. Apple (9th Cir. 15-17382 ord. 8/16/17) Certified Question: Waiting Time for Exit Searches


Certification of Question to Supreme Court of California


The panel certified the following question of state law to the Supreme Court of California: Is time spent on the employer’s premises waiting for, and undergoing, required exit searches of packages or bags voluntarily brought to work purely for personal convenience by employees compensable as “hours worked” within the meaning of California Industrial Welfare Commission Wage Order No. 7?


Merrick v. Hilton Worldwide (9th Cir. 14-56853 8/16/17) FEHA Age Discrimination


The panel affirmed the district court’s summary judgment in favor of Hilton Worldwide, Inc., and CHH Torrey Pines Tenant Corp. on a former Hilton employee’s age discrimination claims.


The California Fair Employment and Housing Act (“FEHA”) prohibits employers from discharging or dismissing employees over the age of forty based on their age. Cal. Gov’t Code §§ 12926(b), 12940(a). Plaintiff Charles Merrick was 60 years old in July 2012, when he was terminated from his position as Director of Property Operations at a Hilton hotel as part of a reduction-in-workforce (“RIF”).


The panel applied the three-part McDonnell Douglass burden-shifting test to analyze Merrick’s age discrimination disparate treatment claims under FEHA.


First, the panel held that Merrick satisfied the elements for establishing a prima facie case of discrimination. The panel noted that the district court erred in requiring Merrick to show that he was replaced by a younger employee. The panel held that employees terminated during a RIF, instead of showing proof of replacement, may instead show through evidence that discharge occurred under circumstances giving rise to an inference of age discrimination. The panel concluded that Hilton acknowledged Merrick’s duties were outsourced or assumed by other employees, and, accordingly, Merrick satisfied the elements for establishing a prima facie case of discrimination.


Second, the panel held that the burden shifted to Hilton to produce admissible evidence showing that it terminated Merrick for a legitimate, nondiscriminatory reason. The panel concluded that Hilton produced evidence that it terminated Merrick for legitimate, non-discriminatory reasons.


Finally, the panel held that the burden shifted back to Merrick to produce sufficient evidence to allow a jury to conclude that Hilton’s proffered reasons were pretexts, and that age was a substantial motivating factor in his termination. The panel held that considering the context of the case – the lost profits during the economic downturn, a series of layoffs, the overall age of the workforce, the fact that Merrick survived previous RIFS, and the business reasons for selecting his position for elimination – Merrick did not present sufficient evidence to infer that Hilton’s actual motive was discriminatory.


The panel held that Merrick’s other claims were derivative of his FEHA age discrimination claim, and necessarily failed along with that claim.


Sviridov v. City of San Diego (CA4/1 D069785, filed 7/28/17, pub. ord. 8/15/17) Costs to Prevailing Defendant/FEHA & POBRA


Aleksei E. Sviridov appeals a judgment after the trial court awarded the City of San Diego and the San Diego Police Department (collectively the City or defendants) $90,387.28 in costs.  Sviridov contends the City is not entitled to costs based upon Williams v. Chino Valley Independent Fire Dist. (2015) 61 Cal.4th 97, 99 (Williams), which held that in actions based upon the California Fair Employment and Housing Act (FEHA; Gov. Code, § 12900 et seq.), costs should not be awarded under Government Code section 12965, subdivision (b), to a defendant against an unsuccessful FEHA plaintiff "unless the plaintiff brought or continued litigating the action without an objective basis for believing it had potential merit."  (Williams, supra, at pp. 99–100.)  Sviridov also contends the Public Safety Officers Procedural Bill of Rights Act (POBRA; Gov. Code, § 3300 et seq.) prohibits an award of costs for the defense of his POBRA claim unless the action was frivolous or brought in bad faith.  (Gov. Code, § 3309.5.)  The City contends neither of these statutes applies because the City is entitled to its costs pursuant to Code of Civil Procedure section 998 since Sviridov rejected multiple statutory settlement offers and did not obtain a more favorable result.  We conclude the City is entitled to costs pursuant to section 998 and we affirm the judgment.


Williby v. Aetna Life Ins. Co. (9th Cir. 15-56394 8/15/17) ERISA


The panel vacated the district court’s judgment in favor of the plaintiff in an action under the Employee Retirement Income Security Act, challenging the termination of short-term disability benefits.


The panel held that the district court erred by reviewing the denial of the plaintiff’s benefits claim de novo, rather than for an abuse of discretion. The short-term disability plan included a discretionary clause, and thus by its terms called for abuse of discretion review. The panel held that California Insurance Code § 10110.6, which invalidates such discretionary clauses in insurance plans, applied even though the disability plan was self-funded. ERISA, however, preempted § 10110.6 insofar as it applied. The panel remanded for the district court to review the benefits denial under the correct standard.


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