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Granite Construction Co. v. CalOSHA (CA3 C096704, filed 9/25/23, ord. pub. 10/16/23) Workplace Safety
The Department of Industrial Relations, Division of Occupational Safety and Health (the Division) is a state agency authorized to issue citations to employers for workplace safety violations. In this case, it issued a citation to Granite Construction Company/Granite Industrial, Inc. (Granite Construction) for allegedly violating three regulations relevant here. It alleged Granite Construction violated one regulation because it required its employees to wear masks without first providing a medical evaluation to determine their fitness to wear them. And it alleged the company violated two other regulations because it exposed its employees to dust containing a harmful fungus—namely, Coccidioides, the fungus that causes Valley fever—and failed to implement adequate measures to limit this exposure.
After Granite Construction disputed these allegations, an administrative law judge (ALJ) rejected the Division’s claims. The ALJ reasoned that no credible evidence showed that Granite Construction required its employees to wear masks and no reliable evidence showed that Coccidioides was present at the worksite. But after the Division petitioned for reconsideration, the Occupational Safety and Health Appeals Board (the Board) reversed on these issues and ruled for the Division. The trial court later denied Granite Construction’s petition for writ of administrative mandate seeking to set aside the Board’s decision.
On appeal from the trial court, we reverse. We agree with Granite Construction’s claim that insufficient evidence shows its employees were exposed to Coccidioides. But we reject its additional claim that it allowed (rather than required) its employees to wear masks, finding sufficient evidence supports the Board’s contrary ruling on this point. We will direct the trial court to enter a new judgment granting Granite Construction’s petition in part.
https://www.courts.ca.gov/opinions/documents/C096704.PDF
Bills Signed and Vetoed by Governor (10/13/23)
Signed
AB 587 by Assemblymember Robert Rivas (D-Salinas) – Public works: payroll records
AB 752 by Assemblymember Blanca Rubio (D-Baldwin Park) – State highways: worker safety
AB 1076 by Assemblymember Rebecca Bauer-Kahan (D-Orinda) – Contracts in restraint of trade: noncompete agreements
AB 1163 by Assemblymember Luz Rivas (D-Sylmar) – Lesbian, Gay, Bisexual, and Transgender Disparities Reduction Act
AB 1487 by Assemblymember Miguel Santiago (D-Los Angeles) – Public health: Transgender, Gender Variant, and Intersex Wellness Reentry Fund
SB 525 by Senator María Elena Durazo (D-Los Angeles) – Minimum wages: health care workers
SB 765 by Senator Anthony Portantino (D-Burbank) – Teachers: retired teachers: compensation limitation
Vetoed
SB 509 by Senator Anthony Portantino (D-Burbank) – School employee and pupil training: youth mental and behavioral health: mental health education. A veto message can be found here
Park v. NMSI, Inc. (CA2/7 B323063 10/12/23) Breach of Contract
At the request of plaintiffs and cross-defendants Julie Park and Danny Chung, the trial court issued prejudgment right to attach orders (RTAO) in the aggregate amount of $7,192,607.16 against their former employer, NMSI, Inc. Appealing the orders as authorized by Code of Civil Procedure section 904.1, subdivision (a)(5),1 NMSI contends Park and Chung failed to establish the probable validity of their claims because, contrary to the allegations in their first amended complaint, the agreements underlying their breach of contract causes of action had been modified through an exchange of emails, as well as by the parties’ subsequent conduct. NMSI also contends the amounts to be attached were not readily ascertainable and the court erred in considering documents incorporated by reference into the applications for a writ of attachment. We affirm.
https://www.courts.ca.gov/opinions/documents/B323063.PDF
Murray v. UBS Securities, LLC (US 22-660 Oral Argument Transcript 10/10/23) Sarbanes-Oxley Whistleblower | Retaliatory Intent
Under the burden-shifting framework that governs Sarbanes-Oxley cases, must a whistleblower prove his employer acted with a "retaliatory intent" as part of his case in chief, or is the lack of "retaliatory intent" part of the affirmative defense on which the employer bears the burden of proof?
Decision Below: 43 F.4th 254 (2d Cir. 2022)
Bills Signed by Governor (10/10/23)
AB 242 by Assemblymember Jim Wood (D-Healdsburg) – Critical access hospitals: Employment
AB 520 by Assemblymember Miguel Santiago (D-Los Angeles) – Employment: public entities
AB 594 by Assemblymember Brian Maienschein (D-San Diego) – Labor Code: alternative enforcement
AB 934 by Assemblymember Al Muratsuchi (D-Torrance) – Commission on Teacher Credentialing: public awareness campaign
AB 1366 by Assemblymember Brian Maienschein (D-San Diego) – Unfair competition and false advertising: disgorgement
AB 1484 by Assemblymember Rick Chavez Zbur (D-Los Angeles) – Temporary public employees.
SB 54 by Senator Nancy Skinner (D-Berkeley) – Venture capital companies: reporting. A signing message can be found here (signed 10/8/23)
SB 327 by Senator John Laird (D-Santa Cruz) – State teachers’ retirement: disability allowances and benefits
SB 365 by Senator Scott Wiener (D-San Francisco) – Civil procedure: arbitration
SB 723 by Senator María Elena Durazo (D-Los Angeles) – Employment: rehiring and retention: displaced workers
SB 848 by Senator Susan Rubio (D-Baldwin Park) – Employment: leave for reproductive loss
Bills Signed by Governor (10/8/23, 2 of 2)
Signed
AB 56 by Assemblymember Tom Lackey (R-Palmdale) – Victim’s compensation: emotional injuries
AB 521 by Assemblymember Rebecca Bauer-Kahan (D-Orinda) – Occupational safety and health standards: construction jobsites: toilet facilities
AB 658 by Assemblymember Mike Fong (D-Alhambra) – Public employment: retirement: benefits
AB 1020 by Assemblymember Tim Grayson (D-Concord) – County Employees Retirement Law of 1937: disability retirement: medical conditions: employment-related presumption
AB 1032 by Assemblymember Blanca Pacheco (D-Downey) – Courts: court interpreters
AB 1204 by Assemblymember Chris R. Holden (D-Pasadena) – Contractors: contracts: restrictions
SB 497 by Senator Lola Smallwood-Cuevas (D-Los Angeles) – Protected employee conduct.
SB 531 by Senator Rosilicie Ochoa Bogh (R-Yucaipa) – Pupil safety: local educational agency contractors: background checks
SB 623 by Senator John Laird (D-Santa Cruz) – Workers’ compensation: post-traumatic stress disorder
SB 727 by Senator Monique Limόn (D-Santa Barbara) – Human trafficking: civil actions
SB 831 by Senator Anna Caballero (D-Merced) – Agricultural workers: immigration: parole
Vetoed
AB 524 by Assemblymember Buffy Wicks (D-Oakland) – Discrimination: family caregiver status. A veto message can be found here
AB 575 by Assemblymember Diane Papan (D-San Mateo) – Paid family leave. A veto message can be found here
AB 1213 by Assemblymember Liz Ortega (D-San Leandro) – Workers’ compensation: aggregate disability payments. A veto message can be found here
SB 596 by Senator Anthony Portantino (D-Burbank) – School employees: protection. A veto message can be found here
SB 627 by Senator Lola Smallwood-Cuevas (D-Los Angeles) – Displaced workers: notice: opportunity to transfer. A veto message can be found here
SB 702 by Senator Monique Limόn (D-Santa Barbara) – Gubernatorial appointments: report. A veto message can be found here
SB 716 by Senator Marie Alvarado-Gil (D-Jackson) – Excluded employees: binding arbitration. A veto message can be found here
SB 725 by Senator Lola Smallwood-Cuevas (D-Los Angeles) – Grocery workers. A veto message can be found here
SB 731 by Senator Angelique Ashby (D-Sacramento) – Employment discrimination: unlawful practices: work from home: disability. A veto message can be found here
Bills Signed and Vetoed by Governor (10/8/13 1 of 2)
Signed
AB 96 by Assemblymember Ash Kalra (D-San Jose) – Public employment: local public transit agencies: autonomous transit vehicle technology
AB 338 by Assemblymember Cecilia Aguiar-Curry (D-Winters) – Fuel reduction work
AB 443 by Assemblymember Corey Jackson (D-Moreno Valley) – Peace officers: determination of bias
AB 567 by Assemblymember Philip Ting (D-San Francisco) – Criminal records: relief
AB 621 by Assemblymember Jacqui Irwin (D-Thousand Oaks) – Workers’ compensation: special death benefit
AB 633 by Assemblymember Jim Patterson (R-Fresno) – Nursing: licensure: retired licenses
AB 636 by Assemblymember Ash Kalra (D-San Jose) – Employers: agricultural employees: required disclosures
AB 647 by Assemblymember Chris R. Holden (D-Pasadena) – Grocery workers
AB 1136 by Assemblymember Matt Haney (D-San Francisco) – State Athletic Commission: mixed martial arts: retirement benefit
AB 1329 by Assemblymember Brian Maienschein (D-San Diego) – County jail incarcerated persons: identification card pilot program
SB 27 by Senator María Elena Durazo (D-Los Angeles) – University of California: vendors
SB 75 by Senator Richard D. Roth (D-Riverside) – Courts: judgeships
SB 667 by Senator Bill Dodd (D-Napa) – Healing arts: pregnancy and childbirth
Vetoed
AB 372 by Assemblymember Stephanie Nguyen (D-Elk Grove) – CalWORKs: eligibility: income exclusions. A veto message can be found here
AB 504 by Assemblymember Eloise Gómez Reyes (D-Colton) – State and local public employees: labor relations: strikes. A veto message can be found here.
AB 699 by Assemblymember Dr. Akilah Weber (D-San Diego) – Workers’ compensation: presumed injuries. A veto message can be found here
AB 1079 by Assemblymember Corey Jackson (D-Moreno Valley) – Discrimination: Public engagement. A veto message can be found here
AB 1145 by Assemblymember Brian Maienschein (D-San Diego) – Workers’ compensation. A veto message can be found here
AB 1677 by Assemblymember Tina McKinnor (D-Los Angeles) – Public employment: salary classification: state scientist. A veto message can be found here
SB 391 by Senator Catherine Blakespear (D-Encinitas) – Workers’ compensation: skin cancer. A veto message can be found here
SB 751 by Senator Steve Padilla (D-San Diego) – Franchise agreements: solid waste handling services: labor dispute. A veto message can be found here
SB 822 by Senator María Elena Durazo (D-Los Angeles) – Workforce development: Interagency High Road Act. A veto message can be found here
Bills Signed and Vetoed by Governor (10/7/23)
Signed
AB 1 by Assemblymember Tina McKinnor (D-Los Angeles) – Collective bargaining: Legislature
AB 336 by Assemblymember Sabrina Cervantes (D-Riverside) – Contractors: workers’ compensation insurance
AB 472 by Assemblymember Buffy Wicks (D-Oakland) – Classified school district and community college employees: compulsory leaves of absence: compensation
AB 494 by Assemblymember Dr. Joaquin Arambula (D-Fresno) – Robert F. Kennedy Farm Workers Medical Plan
AB 883 by Assemblymember Devon Mathis (R-Porterville) – Business licenses: United States Department of Defense SkillBridge program
AB 1273 by Assemblymember Mia Bonta (D-Oakland) – Classified employees: Classified Employee Staffing Ratio Workgroup
AB 1327 by Assemblymember Dr. Akilah Weber (D-San Diego) –Interscholastic athletics: California Interscholastic Federation: racial discrimination, harassment, or hazing
SB 449 by Senator Steven Bradford (D-Gardena) – Peace officers: Peace Officer Standards Accountability Advisory Board
SB 461 by Senator Aisha Wahab (D-Hayward) – Days and hours of work: religious or cultural observance
SB 700 by Senator Steven Bradford (D-Gardena) – Employment discrimination: cannabis use
SB 791 by Senator Mike McGuire (D-Healdsburg) – Postsecondary education: academic and administrative employees: disclosure of sexual harassment
SB 808 by Senator Bill Dodd (D-Napa) – California State University: annual report: sexual harassment reports: formal sexual harassment complaints
Vetoed
AB 1123 by Assemblymember Dawn Addis (D-Morro Bay) – California State University: employees: paid parental leave of absence. A veto message can be found here
AB 1699 by Assemblymember Kevin McCarty (D-Sacramento) – K–14 classified employees: part-time or full-time vacancies: public postings. A veto message can be found here
SB 403 by Senator Aisha Wahab (D-Hayward) – Discrimination on the basis of ancestry. A veto message can be found here
SB 433 by Senator Dave Cortese (D-San Jose) – Classified school and community college employees: disciplinary hearings: appeals: impartial third-party hearing officers. A veto message can be found here
Bills Signed by Governor (10/4/23)
SB 548 by Senator Roger Niello (R-Fair Oaks) - Public employees' retirement: joint county and trial court contracts
SB 616 by Senator Lena Gonzales (D-Long Beach) - Sick days: paid sick days accrual and use
Bills Signed and Vetoed by Governor (9/30/23)
Signed
SB 553 by Senator Dave Cortese (D-San Jose) – Occupational safety: workplace violence: restraining orders and workplace violence prevention plan. A signing message can be found here.
Vetoed
SB 686 by Senator María Elena Durazo (D-Los Angeles) – Domestic workers: occupational safety. A veto message can be found here.
SB 799 by Senator Anthony Portantino (D-Burbank) – Unemployment insurance: trade disputes: eligibility for benefits. A veto message can be found here.
In re Uber Technologies Wage and Hour Cases (CA1/4 A166355 9/28/23) State & DLSE Not Parties to Arbitration Agreements
In these coordinated proceedings, defendants Uber and Lyft appeal after the trial court denied their motions to compel arbitration of claims brought against them in civil enforcement actions by the People of the State of California (the People) and by the Labor Commissioner through the Division of Labor Standards Enforcement (DLSE). We conclude the court correctly denied the motions because the People and the Labor Commissioner are not parties to the arbitration agreements invoked by Uber and Lyft. We therefore affirm.
https://www.courts.ca.gov/opinions/documents/A166355.PDF
Bill Signed by Governor (9/28/23)
AB 1228 by Assemblymember Chris R. Holden (D-Pasadena) – Fast food restaurant industry: Fast Food Council: health, safety, employment, and minimum wage
Doe v. Super. Court (CA 1/3 A167105M, filed 9/8/23, mod. 9/2823) Failure to Timely Pay Arbitration Fees
It is ordered that the opinion filed herein on September 8, 2023, be modified as follows:
At page 16, in the second paragraph in the string citation, “Navrides v. Zurich Ins. Co. (1971) 5 Cal.3d 698, 706 [“the mere giving of a check payable to the agent does not constitute payment”];” is deleted.
There is no change in the judgment.
https://www.courts.ca.gov/opinions/documents/A167105M.PDF
Brown v. City of Inglewood, 92 Cal.App.5th 1256 (2023), review granted 2023 WL 6300304 (Mem) (Sept. 27, 2023), S280773/ B320658
Petition for review after affirmance in part and reversal in part. Are elected officials employees for purposes of whistleblower protection under Labor Code section 1102.5, subdivision (b)? Review granted/brief due. Votes: Guerrero, C.J., Corrigan, Liu, Kruger, Groban, Jenkins and Evans, JJ.
Bill Signed by Governor (9/25/23)
SB 14 by Senator Shannon Grove (R-Bakersfield) – Serious felonies: human trafficking
Brown v. State of Arizona (9th Cir. 20-15568 en banc 9/25/23) Title IX
The en banc court reversed the district court’s summary judgment in favor of the University of Arizona and remanded in an action brought under Title IX by Mackenzie Brown.
Orlando Bradford, who was attending the University on a football scholarship, repeatedly and violently assaulted Brown, his fellow student, in an off-campus house where Bradford was living with other university football players. At the time of the assault, university officials knew that Bradford had repeatedly and violently assaulted two other female undergraduates the previous year. Brown sued the University under Title IX, contending that the University’s actions and omissions in response to Bradford’s violent assaults on the other female students deprived her of the full benefits of her education and that an appropriate response would have prevented Bradford’s assaults on her.
The en banc court held that to obtain damages under Title IX for student-on-student harassment, a plaintiff must show (1) that the educational institution had substantial control over both the harasser and the context in which the known harassment occurs; (2) that the harassment was so severe, pervasive, and objectively offensive that it denied its victims the equal access to education that Title IX is designed to protect; (3) that a school official with authority to address the alleged discrimination and to institute corrective measures has actual knowledge of the discrimination; (4) that the school acted with deliberate indifference to the harassment; and (5) that the school’s deliberate indifference must, at a minimum, cause students to undergo harassment, or make them liable or vulnerable to it. At issue were the first, third, and fourth requirements.
As to the first requirement, the en banc court held that it was clear that the University had substantial disciplinary control over Bradford, the harasser. The en banc court held that the University also had substantial control over the context in which the harassment occurred, even though it occurred off campus, because location is only one factor in determining the control over context. Considering all the circumstances of this case and viewing the facts in the light most favorable to Brown, the en banc court held that Brown presented sufficient evidence to allow a reasonable factfinder to conclude that the University had substantial control over the context in which Bradford assaulted Brown. The University had control over the off-campus housing in which Bradford was living. In addition, the University’s Student Code of Conduct applied to student conduct both on campus and off-campus, and Bradford was subject to increased supervision through Player Rules specific to football players.
The en banc court held that there also was a sufficient showing as to the third requirement, actual knowledge, and the fourth requirement, deliberate indifference. The en banc court held that evidence in the record would support a conclusion by a reasonable factfinder that University officials had actual knowledge or notice of Bradford’s violent assaults, and that Erika Barnes, the University’s Title IX liaison within the Athletics Department, was an official who had authority to address Bradford’s assaults and to institute corrective measures. A reasonable factfinder also could conclude that Barnes’s response amounted to deliberate indifference.
Concurring, Judge Friedland wrote that she concurred in the majority’s opinion in its entirety. She wrote separately to address a waiver argument raised in dissent. Judge Friedland wrote that, in proceedings before the three-judge panel, Brown disavowed the argument that the University exercised control over Bradford’s off-campus apartment, but a majority of the three-judge panel addressed that theory on its merits anyway. Because the majority’s holding on that theory was incorrect, and because Brown raised the issue in supplemental briefing to the en banc court, it was proper for the en banc court to address the issue.
Dissenting, Judge Rawlinson, joined by Judge Lee, wrote that the facts showed that the University had control over Bradford, the harasser, but not over the context in which the harassment occurred.
Dissenting, Judge R. Nelson, joined by Judges Rawlinson and Lee, wrote that, before the district court and before the three-judge panel, Brown expressly disclaimed the position that the University controlled the context of the abuse in Bradford’s off-campus house, arguing instead that the control-over-context requirement was met because the University controlled Bradford’s previous abuse of two other female students. Therefore, the majority improperly rested its holding on this theory. Judge R. Nelson wrote that the majority got the merits wrong as well, because the evidence showed that the University did not control the context of Bradford’s abuse of Brown.
Dissenting, Judge Lee, joined by Judge Rawlinson, wrote that courts have drifted from the text of Title IX, and a criminal act by a student in an off-campus house does not implicate an “education program or activity” under Title IX.
https://cdn.ca9.uscourts.gov/datastore/opinions/2023/09/25/20-15568.pdf
Accurso v. In-N-Out Burgers (CA1/4 A165320M filed 8/29/23, mod. 9/25/23) PAGA
BY THE COURT:
Appellants have filed a “Request for Clarification” asking this court to modify the opinion filed in this appeal on August 29, 2023. For purposes of clarification, the court orders that the opinion be modified as set forth below. Some of the following modifications are adopted upon appellants’ request, and some are adopted sua sponte. To the extent appellants seek modifications to the opinion that are not reflected in this order, their request is denied.
1. On page 3, in footnote 2, delete the following sentence:
The court in Taylor initially stayed that action pending completion of proceedings in Piplack, but plaintiff Taylor, represented by the same counsel as plaintiff Piplack, later amended her complaint to withdraw those allegations, which led to the court lifting the stay.
Insert in place of the deleted sentence indicated above, continuing within the same footnote, the following substitute language:
The court in Piplack initially stayed that action pending completion of proceedings in Taylor, but plaintiff Taylor later amended her complaint to withdraw those allegations, which led the Piplack court to lift its stay.
2. On page 5, at the end of the first partial paragraph at the top of the page, add the following sentence as the new concluding sentence of that paragraph:
So far as we are aware, despite these statements no motion to approve a settlement was ever made.
3. On page 7, in the first full paragraph, add the following new sentence at the beginning of the paragraph:
Under section 387, subdivision (b), “[a]n intervention takes place when a nonparty, deemed an intervenor, becomes a party to an action or proceeding between other persons” by filing an application for such status.
4. On page 7, in the first full paragraph, after the new sentence that was added pursuant to #3 above, and at the beginning of what is now the second sentence of the paragraph, add the phrase “Following the federal model,” change the word “Section” to “section”, and delete the word “now”, so the introductory portion of that sentence reads:
Following the federal model, section 387, subdivision (d) provides:
5. On page 7, in the first full paragraph, in the first sentence of the quoted language in the paragraph, italicize the word “shall” so that portion of the quoted language reads:
“(1) The court shall, upon timely application, permit a nonparty to intervene in the action or proceeding [where] . . . [¶] . . . [¶]
6. On page 7, in the first full paragraph, in the last sentence of the quoted language in the paragraph, italicize the word “may” and add the parenthetical phrase “(Italics added.)” after the end of the quotation, so the concluding portion of the quoted language and the following parenthetical read as follows:
(2) The court may, upon timely application, permit a nonparty to intervene in the action or proceeding if the person has an interest in the matter in litigation, or in the success of either of the parties, or an interest against both.” (Italics added.)
7. On page 8, in the first partial paragraph, after the parenthetical citations ending with “Belt Casualty Co. v. Furman (1933) 218 Cal. 359, 362.)”, add the following new sentence and citation:
“The law abhors multiplicity of actions, consuming the time of the court and entailing additional [public] expense . . . .” (Elms v. Elms (1935) 4 Cal.2d 681, 684.)
8. On page 8, in the first partial paragraph, delete the following sentence:
The moving party seeking intervention always bears the burden of proving entitlement to party status. (People v. Brophy (1942) 49 Cal.App.2d 15, 34.)
Insert in place of the deleted sentence indicated above, continuing within the same paragraph, the following substitute language:
While “ ‘[c]ourts have recognized . . . section 387 should be liberally construed in favor of intervention’ ” (City of Malibu v. California Coastal Com. (2005) 128 Cal.App.4th 897, 902), the moving party seeking intervention always bears the burden of proving entitlement to party status. (People v. Brophy (1942) 49 Cal.App.2d 15, 34.)
9. On page 8, in the first partial paragraph, delete the following sentences:
California courts consider federal precedent under Federal Rules of Civil Procedure, rule 24 when analyzing section 387 motions. (Edwards v. Heartland Payment Systems, Inc. (2018) 29 Cal.App.5th 725, 732 (Edwards).) And we “ ‘liberally construe[]’ ” section 387 in favor of non-party movants (City of Malibu v. California Coastal Com. (2005) 128 Cal.App.4th 897, 902), “ ‘ “guided primarily by practical and equitable considerations.” ’ ” (Callahan v. Brookdale Senior Living Communities, Inc. (9th Cir. 2022) 42 F.4th 1013, 1020 (Callahan).)
10. On page 9, at the end of the first partial paragraph, after the parenthetical citation to “(United States v. Alisal Water Corp. (9th Cir. 2004) 370 F.3d 915, 919.)”, add the following new sentence and citation:
After the 1977 amendment, California courts began to “take guidance from federal law,” “[s]ince ‘[s]ubdivision (b) of . . . section 387 is in substance an exact counterpart to rule 24(a) of the Federal Rules of Civil Procedure.’ ” (Edwards v. Heartland Payment Systems, Inc. (2018) 29 Cal.App.5th 725, 732 (Edwards).)
11. On page 9, in the last paragraph, delete the following sentence:
In some circumstances, the outcome of this three-factor test for adequacy of representation is determined by a presumption.
Insert in place of the deleted sentence indicated above, continuing within the same paragraph, the following substitute language:
In some circumstances, the outcome of this three-factor test for adequacy of representation may be subject to a rebuttable presumption.
12. On page 13, in the first partial paragraph, in the parenthetical at the end of the paragraph, replace “See Callahan, supra, 42 F.4th at p. 1019” with “See Callahan v. Brookdale Senior Living Communities, Inc. (9th Cir. 2022) 42 F.4th 1013, 1019” so the parenthetical reads:
(See Callahan v. Brookdale Senior Living Communities, Inc. (9th Cir. 2022) 42 F.4th 1013, 1019 (Callahan) [“We review de novo a district court’s denial of a motion to intervene as a matter of right, with the exception of a denial based on timeliness, which is reviewed for abuse of discretion.”].)
13. On page 21, in the first partial paragraph, delete the following sentence:
Although we believe Piplack and Taylor as deputized LWDA proxies have significantly protectable interests, in the end we conclude that they failed to bear their burden of proving inadequate representation or potential impairment of their protectable interests.
Insert in place of the deleted sentence indicated above, continuing within the same paragraph, the following substitute language:
Although we believe Piplack and Taylor as deputized LWDA proxies have significantly protectable interests, in the end we conclude that they failed to bear their burden of proving both potential impairment of their protectable interests and inadequate representation.
14. On page 21, in the first full paragraph, delete the following sentence:
Had the court moved past Turrieta, and found an interest sufficient to satisfy the threshold requirement for intervention, as we conclude it should have, the permissive intervention standard does not require a showing of inadequate representation, which is the stumbling block Piplack and Taylor fail to overcome for mandatory intervention.
Insert in place of the deleted sentence indicated above, continuing within the same paragraph, the following substitute language:
Had the court moved past Turrieta, and found an interest sufficient to satisfy the threshold requirement for intervention, as we conclude it should have, the permissive intervention standard does not require a showing of either impairment of the putative intervenor’s claimed interest or inadequate representation, which are the stumbling blocks Piplack and Taylor fail to overcome for mandatory intervention.
15. On page 21, also in the first full paragraph, in the fourth sentence (which begins with “The governing permissive intervention statute”), replace the words “that issue” with “those issues” so the sentence reads:
The governing permissive intervention statute, section 387, subdivision (d)(2), does not mention those issues.
16. On page 22, in the third full paragraph, delete the first sentence of the paragraph, which currently reads:
Since Piplack and Taylor possess a legal interest sufficient to trigger eligibility for intervention as-of-right, their entitlement to mandatory intervention turns on the issues of adequacy of representation and whether they are “so situated that the disposition of the action may impair or impede” their protectable interests.
Insert in place of the deleted sentence indicated above, as the new first sentence of the paragraph, the following substitute language:
Since Piplack and Taylor possess a legal interest sufficient to trigger eligibility for intervention as-of-right, their entitlement to mandatory intervention turns on whether they are “so situated that the disposition of the action may impair or impede” their protectable interests and the closely related issue of adequacy of representation “by one or more of the existing parties.”
17. On page 27, in the first full paragraph, in the second sentence, in the second parenthetical within the sentence, delete the phrase “before deferring, procedurally, to Piplack” so the sentence reads:
Without viable penalty claims covering expense reimbursement (which Piplack is pursuing) or claims for uniform donning and doffing time (which Taylor sought to pursue in her original complaint), they insist that Accurso—as the self-appointed private attorney general for all PAGA claims against In-N-Out—has very little negotiating leverage against In-N-Out and cannot maximize the settlement value of his penalty claims because he failed to obtain LWDA authorization to cover uniform-related claims against In-N-Out.
18. On page 28, in the first paragraph, in the second sentence, replace the phrase “, in the end,” with the word “ultimately” so the sentence reads:
They also point out that ultimately there was no settlement here; that Piplack and Taylor have no valid basis to speculate about what might have been in an unconsummated settlement; and thus that the entire basis of the intervention motion from Piplack and Taylor—their asserted need to participate in the settlement approval process to guard against overbreadth—has evaporated.
18. On page 32, in the first full paragraph, delete the following sentence:
In the absence of an actual settlement demonstrating that Accurso exceeded the scope of his LWDA authorization, the mere potential that Piplack’s and Taylor’s interests “may be” unable or unwilling to represent their interests in a future, hypothetical settlement is speculative.
Insert in place of the deleted sentence indicated above, continuing within the same paragraph, the following substitute language:
In the absence of an actual settlement demonstrating that Accurso exceeded the scope of his LWDA authorization, the mere potential that he “may be” unable or unwilling to represent Piplack’s and Taylor’s interests in a future, hypothetical settlement is speculative.
The modifications effect no change in the judgment.
https://www.courts.ca.gov/opinions/documents/A165320M.PDF
Bills Signed by Governor (9/23/23)
AB 5 by Assemblymember Rick Chavez Zbur (D-Los Angeles) – The Safe and Supportive Schools Act
AB 342 by Assemblymember Avelino Valencia (D-Anaheim) – Architects and real estate appraisers: applicants and licensees: demographic information
AB 760 by Assemblymember Lori Wilson (D-Fairfield) – Public postsecondary education: affirmed name and gender identification
AB 783 by Assemblymember Philip Ting (D-San Francisco) – Business licenses: single-user restrooms
SB 151 by the Committee on Budget and Fiscal Review – State employment: State Bargaining Unit 6 agreement
SB 372 by Senator Caroline Menjivar (D-San Fernando Valley/Burbank) – Department of Consumer Affairs: licensee and registrant records: name and gender changes
SB 432 by Senator Dave Cortese (D-San Jose) – Teachers’ retirement
Bill Vetoed by Governor (9/22/23)
AB 316 by Assemblymember Cecilia Aguiar-Curry (D-Winters) – Vehicles: autonomous vehicles. A veto message can be found here.
Hartstein v. Hyatt Corp. (9th Cir. 22-55276 9/22/23) Layoff | Prompt Payment of Accrued Vacation Time
The panel affirmed in part and reversed in part the district court’s summary judgment in favor of Hyatt Corporation in a class action brought by former California employees of Hyatt who were laid off after the COVID-19 pandemic, alleging that Hyatt violated California law by failing to pay them immediately for their accrued vacation time and by failing to compensate them for the value of the free hotel rooms employees received each year.
Hyatt contended that it was not required to pay its employees their accrued vacation pay until June 2020, when the employees were formally terminated. The panel concluded that the prompt payment provisions of the California Labor Code required Hyatt to pay plaintiffs their accrued vacation pay in March 2020. The California Division of Labor Standards Enforcement (“DLSE”) opinion letter and its Policies and Interpretations Manual establish that a temporary layoff without a specific return date within the normal pay period is a discharge that triggers the prompt payment provisions of Cal. Labor Code § 201. Hyatt thus should have paid the accrued vacation pay at the initial layoff in March 2020 because the temporary layoff was longer than the normal pay period and there was no specific return date. The panel reversed the district court’s grant of summary judgment to Hyatt as to the vacation pay claim and remanded for the district court to consider whether Hyatt acted willfully in failing to comply with the prompt payment provisions.
The panel also reversed the grant of summary judgment as to plaintiffs’ Private Attorneys General Act and unfair competition claims, which the district court had dismissed as derivative of plaintiffs’ claims under the Labor Code.
The panel held that the complimentary hotel rooms Hyatt provided to employees were excludable from the calculation of employees’ regular rate of pay under the federal Fair Labor Standards Act (FLSA) because they were excludable as “other similar payments” under 29 C.F.R. § 778.224. The panel therefore affirmed the grant of summary judgment as to the complimentary hotel room claim.
https://cdn.ca9.uscourts.gov/datastore/opinions/2023/09/22/22-55276.pdf
Estrada v. Public Employees' Retirement System (CA2/8 B317848 9/21/23) CalPERS Pension | Felony Conviction
Government Code section 7522.72 provides that if a public employee is convicted of a felony for conduct arising out of or in the performance of his or her official duties, the employee forfeits certain accrued retirement benefits, which “shall remain forfeited notwithstanding any reduction in sentence or expungement of the conviction.” Appellant Elaine Estrada, a former employee of the City of La Habra Heights (City), pled no contest to a felony that arose out of the performance of her official duties. Under the terms of Estrada’s plea agreement, the conviction was later reduced to a misdemeanor under Penal Code section 17 and then dismissed under Penal Code section 1203.4. After respondent California Public Employees’ Retirement System (CalPERS) determined that Estrada forfeited a portion of her retirement benefits as a result of her felony conviction, she filed a petition for writ of administrative mandate. We conclude the trial court did not err in denying the petition because, consistent with the language and purpose of section 7522.72, Estrada’s retirement benefits were subject to forfeiture upon her no contest plea to a job-related felony, notwithstanding the subsequent reduction to a misdemeanor and dismissal of the charge. We accordingly affirm.
https://www.courts.ca.gov/opinions/documents/B317848.PDF
Liapes v. Facebook, Inc. (CA1/3 A164880 9/21/23) Unruh Act | Sex and Age Discrimination on Facebook’s Ad Platform (may apply to employment ads)
Samantha Liapes filed a class action against Facebook, Inc. (Facebook, now known as Meta Platforms, Inc.), alleging it does not provide women and older people equal access to insurance ads on its online platform in violation of the Unruh Civil Rights Act and Civil Code section 51.5 — both of which prohibit businesses from discriminating against people with protected characteristics, such as gender and age. (Civ. Code, §§ 51, 51.5, 52, subd. (a), undesignated statutory references are to this code.) Liapes alleged Facebook requires all advertisers to choose the age and gender of its users who will receive ads, and companies offering insurance products routinely tell it to not send their ads to women or older people. She further alleged Facebook’s ad-delivery algorithm, the system that determines which users will receive ads, discriminates against women and older people by relying heavily on the two key data points of age and gender. As a result, Liapes alleged, women and older people were excluded from receiving insurance ads.
The trial court sustained Facebook’s demurrer, deciding Liapes did not plead sufficient facts to support her discrimination claims. It concluded Facebook’s tools are neutral on their face and simply have a disproportionate impact on a protected class, rather than intentionally discriminating. The court further concluded Facebook was immune under section 230 of the Communications Decency Act of 1996 (47 U.S.C. § 230 (section 230)), which applies to interactive computer service providers acting as a “publisher or speaker” of content provided by others. Liapes appealed. We review de novo the ruling on the demurrer. (Regents of University of California v. Superior Court (2013) 220 Cal.App.4th 549, 558 (Regents).) Liberally construing the complaint and drawing all reasonable inferences in favor of Liapes’s claims, we conclude the complaint alleges facts sufficient to state a cause of action and reverse. (Ibid.)
https://www.courts.ca.gov/opinions/documents/A164880.PDF
Garcia v. Gateway Hotel LP (9th Cir. 21-55926 9/15/23) ADA | Award of Costs to Prevailing Defendant
The panel affirmed the district court’s award of costs to the defendant in an action brought under the Americans with Disabilities Act (“ADA”).
Federal Rule of Civil Procedure 54(d)(1) allows courts the discretion to award costs to prevailing parties unless a federal statute “provides otherwise.” The panel held that Brown v. Lucky Stores, Inc., 246 F.3d 1182 (9th Cir. 2001) (addressing the ADA standard for awarding costs to defendants), was effectively overruled by Marx v. General Revenue Corp., 458 U.S. 371 (2013) (holding that an award of costs in an action brought under the Fair Debt Collection Practices Act is governed by Rule 54(d)(1)). The panel held that, accordingly, the fee- and cost-shifting provision of the ADA, 42 U.S.C. § 12205, does not “provide otherwise” within the meaning of Rule 54(d)(1). Rule 54(d)(1) therefore governs the award of costs to a prevailing ADA defendant and allows such an award in the court’s discretion. The panel concluded that in Green v. Mercy Housing, Inc., 991 F.3d 1056 (9th Cir. 2021) (applying Brown in a suit under the Fair Housing Act), the court did not hold, sub silentio, that Brown and Marx are reconcilable. Because Rule 54(d)(1) controls whether defendants may be awarded costs in this ADA action, the district court did not abuse its discretion in denying the plaintiff’s motion to retax costs, thereby keeping the court’s prior award of costs to the defendant intact.
Dissenting, Judge Hurwitz agreed with the majority that after Marx, Rule 54(d)(1) controls the award of costs to a prevailing defendant in an ADA action and that prior caselaw holding that the ADA “provides otherwise” than Rule 54(d)(1) cannot be reconciled with Marx. Judge Hurwitz, however, wrote that the three-judge panel was not free to reach those conclusions because it was bound by Green’s holding regarding an identical costs provision in the Fair Housing Act.
https://cdn.ca9.uscourts.gov/datastore/opinions/2023/09/15/21-55926.pdf
Cruz v. City of Merced (CA5 F083402, filed 8/23/23, pub. 9/13/23) Police Officer Demotion or Termination
Appellant and petitioner and former police officer Jose Cruz was terminated from the Merced City Police Department (Department) based on allegations he conducted an illegal search, submitted a false police report, and committed perjury at a court hearing. Cruz appealed to the personnel board (Board), which found the City of Merced (City) failed to show Cruz had submitted a false police report or had conducted an illegal search. However, the Board found that Cruz was not truthful in explaining certain details concerning the search. Consequently, the Board rejected the majority of charges against Cruz, but sustained portions of charges relating to his untruthfulness. The Board recommended that Cruz not be terminated, but instead that he be demoted without backpay.
The Merced City Manager reversed the decision and upheld Cruz’s termination. The trial court rejected Cruz’s challenges to the city manager’s decision.
We conclude the trial court erred in upholding several of the charges against Cruz. While we do uphold several other charges, we remand for the trial court to determine whether the surviving charges are sufficient to support the consequence of termination.
https://www.courts.ca.gov/opinions/documents/F083402.PDF
Martin v. THI E-Commerce, LLC (CA4/3 G061234 9/13/23) Unruh Act | Web Sites
This appeal arises from a judgment of dismissal following an order sustaining defendant Thi E-Commerce, LLC’s (Thi E-Commerce) demurrer. Plaintiffs Dominick Martin and Rusty Rendon, who allege they are blind, filed suit under the Unruh Civil Rights Act (Civ. Code, § 51 et seq.; Unruh Act) for disability discrimination, contending that one of Thi E-Commerce’s Web sites discriminates against the blind by being incompatible with screen reading software. Plaintiffs contend the court erred by concluding that a Web site is not a place of public accommodation under the Americans with Disabilities Act (42 U.S.C. § 12101 et seq.; ADA) (which is incorporated into the Unruh Act). Although this is an issue that has split the federal courts (as well as this panel), we conclude the ADA unambiguously applies only to physical places. Moreover, even if we were to find ambiguity and decide the issue on the basis of legislative history and public policy, we would still conclude that the ADA does not apply to Web sites.
Plaintiffs alternatively contend they stated a cause of action against Thi E-Commerce on a theory of intentional discrimination. We conclude the allegations of the complaint do not state a claim under that theory either and affirm the judgment.
https://www.courts.ca.gov/opinions/documents/G061234.PDF
Bills Signed by Governor (9/13/23)
SB 148 by the Committee on Budget and Fiscal Review – State employment: State Bargaining Units: agreements: compensation and benefits
SB 152 by the Committee on Budget and Fiscal Review – Background checks and fingerprinting: state employment, licensing, and contracting
SB 447 by Senator Toni Atkins. GO-Biz: Building and Reinforcing Inclusive, Diverse, Gender-Supportive Equity Project
Martin v. THI E-Commerce, LLC (CA4/3 G061234 9/13/23) Unruh Act | Web Sites
This appeal arises from a judgment of dismissal following an order sustaining defendant Thi E-Commerce, LLC’s (Thi E-Commerce) demurrer. Plaintiffs Dominick Martin and Rusty Rendon, who allege they are blind, filed suit under the Unruh Civil Rights Act (Civ. Code, § 51 et seq.; Unruh Act) for disability discrimination, contending that one of Thi E-Commerce’s Web sites discriminates against the blind by being incompatible with screen reading software. Plaintiffs contend the court erred by concluding that a Web site is not a place of public accommodation under the Americans with Disabilities Act (42 U.S.C. § 12101 et seq.; ADA) (which is incorporated into the Unruh Act). Although this is an issue that has split the federal courts (as well as this panel), we conclude the ADA unambiguously applies only to physical places. Moreover, even if we were to find ambiguity and decide the issue on the basis of legislative history and public policy, we would still conclude that the ADA does not apply to Web sites.
Plaintiffs alternatively contend they stated a cause of action against Thi E-Commerce on a theory of intentional discrimination. We conclude the allegations of the complaint do not state a claim under that theory either and affirm the judgment.
https://www.courts.ca.gov/opinions/documents/G061234.PDF
Cruz v. City of Merced (CA5 F083402, filed 8/23/23, pub. 9/12/23) Police Officer Demotion or Termination
Appellant and petitioner and former police officer Jose Cruz was terminated from the Merced City Police Department (Department) based on allegations he conducted an illegal search, submitted a false police report, and committed perjury at a court hearing. Cruz appealed to the personnel board (Board), which found the City of Merced (City) failed to show Cruz had submitted a false police report or had conducted an illegal search. However, the Board found that Cruz was not truthful in explaining certain details concerning the search. Consequently, the Board rejected the majority of charges against Cruz, but sustained portions of charges relating to his untruthfulness. The Board recommended that Cruz not be terminated, but instead that he be demoted without backpay.
The Merced City Manager reversed the decision and upheld Cruz’s termination. The trial court rejected Cruz’s challenges to the city manager’s decision.
We conclude the trial court erred in upholding several of the charges against Cruz. While we do uphold several other charges, we remand for the trial court to determine whether the surviving charges are sufficient to support the consequence of termination.
https://www.courts.ca.gov/opinions/documents/F083402.PDF
Bills Signed by Governor (9/8/23)
AB 857 by Assemblymember Liz Ortega (D-San Leandro) – Vocational services: formerly incarcerated persons
SB 626 by Senator Susan Rubio (D-Baldwin Park) – Smoking tobacco in the workplace: transient lodging establishments
Doe v. Super. Court (CA 1/3 A167105 9/8/23) Failure to Timely Pay Arbitration Fees
Petitioner Jane Doe sued real parties in interest – her former employer Na Hoku, Inc. and former manager Ysmith Montoya (collectively real parties) – asserting multiple claims arising from Montoya’s alleged sexual harassment and assault of Doe. Real parties successfully compelled the case to arbitration.
September 1, 20221 was the “due date” for real parties to pay certain arbitration fees and costs to the arbitrator. Under Code of Civil Procedure section 1281.98, subdivision (a)(1) (section 1281.98(a)(1))2, these fees and costs had to be “paid within 30 days after the due date” – or by October 3 – to 1 All dates hereafter refer to the year 2022 unless otherwise stated. 2 All statutory references are to the Code of Civil Procedure unless otherwise stated. 2 avoid breaching the arbitration agreement. Instead, the arbitrator received the payment on October 5, two days after the statutory 30-day grace period expired. This delay was because real parties opted to mail a check on Friday, September 30 for the full amount due on Monday, October 3 even though payment could be submitted by credit card, electronic check (also referred to as “ECheck”), or wire transfer.
Petitioner moved to vacate the order compelling arbitration on the basis that real parties failed to pay their arbitration fees and costs within 30 days of the due date as required by section 1281.98(a)(1). After the trial court denied the motion, thus precluding petitioner from withdrawing from the arbitration and pursuing her claims in court, she filed a petition for writ of mandate in this court.
In this writ proceeding, we strictly enforce the 30-day grace period in section 1281.98(a)(1) and conclude fees and costs owed for a pending proceeding must be received by the arbitrator within 30 days after the due date. We do not find that the proverbial check in the mail constitutes payment and agree with petitioner that real parties’ payment, received more than 30 days after the due date established by the arbitrator, was untimely. We therefore grant the writ petition.
https://www.courts.ca.gov/opinions/documents/A167105.PDF
Bills Signed by Governor (9/1/23)
SB 699 by Senator Anna Caballero (D-Merced) — Contracts in restraint of trade
SB 885 by the Committee on Labor, Public Employment and Retirement – Public employees’ retirement.
Barrera v. Apple American Group LLC (CA1/2 A165445 8/31/23) Post-Adolph PAGA Arbitration
Plaintiffs Mario Barrera and Francisco Varguez sued defendants—a nationwide restaurant chain—to recover civil penalties under the Private Attorneys General Act of 2004 (PAGA) (Lab. Code, § 2698 et seq.) for various Labor Code violations suffered by them and by other employees. Defendants moved to compel arbitration. The trial court denied the motion and defendants appealed.
Based on Viking River Cruises, Inc. v. Moriana (2022) 596 U.S. ___, [142 S.Ct. 1906] (Viking River) and the Federal Arbitration Act (FAA) (9 U.S.C. § 1 et seq.), we conclude the parties’ agreements require arbitration of plaintiffs’ PAGA claims that seek to recover civil penalties for Labor Code violations committed against plaintiffs. On an issue of California law that the California Supreme Court has recently resolved, we conclude plaintiffs’ PAGA claims that seek to recover civil penalties for Labor Code violations committed against employees other than plaintiffs may be pursued by plaintiffs in the trial court. (Adolph v. Uber Technologies, Inc. (2023) 14 Cal.5th 1104 (Adolph).)
Therefore, the order denying defendants’ motion to compel arbitration is reversed in part and affirmed in part.
https://www.courts.ca.gov/opinions/documents/A165445.PDF
LaCour v. Marshalls of California (CA1/4 A163920 8/29/23) PAGA
Plaintiff Robert LaCour appeals from a judgment in favor of Marshalls of California, LLC and certain affiliated entities (collectively Marshalls) in this action under the Labor Code’s Private Attorneys General Act of 2004 (PAGA) (Lab. Code, § 2698 et seq.). Marshalls cross-appeals.
Together, the appeal and the cross-appeal require us to address three main questions: (1) Since, in Marshalls’ reading, LaCour’s notice of appeal specifically mentions only the order granting Marshalls’ motion for judgment on the pleadings, is an earlier order that formed the predicate for the judgment appealable? (2) Did trial court err in rejecting Marshalls’ argument that LaCour’s PAGA complaint was untimely? And (3) did the trial court err in partially granting Marshalls’ motion to strike on grounds of claim preclusion?
In answer to these questions, we hold that (1) LaCour’s notice of appeal is sufficient to support an appeal of the adverse judgment against him together with all preliminary orders that preceded it; (2) in light of the Governor’s emergency order extending statutes of limitation in civil cases during the COVID-19 pandemic—an order we hold was constitutional—the trial court correctly ruled that LaCour’s PAGA complaint was timely filed; and (3) the trial court erred in giving claim preclusive effect to a federal court judgment in a prior PAGA case. The judgment will be vacated and the case remanded for further proceedings.
https://www.courts.ca.gov/opinions/documents/A163920.PDF
Krug v. Board of Trustees of the Cal. State Univ. (CA2/1 B320588 8/29/23) CSU Employee Reimbursement Policies
When the Covid pandemic struck, the California State University (CSU) directed that instruction be provided remotely. To provide such instruction, Patrick Krug, a biology professor at CSU-Los Angeles, incurred expenses which CSU refused to reimburse for a computer and other equipment. Krug sued CSU’s board of trustees on behalf of himself and similarly situated faculty, alleging Labor Code section 2802 obligated CSU to reimburse employees for necessary work-related expenses. CSU demurred, arguing that as a department of the state it enjoys broad exemption from Labor Code provisions that infringe on its sovereign powers. Krug appeals from a judgment of dismissal entered after the trial court sustained CSU’s demurrer without leave to amend.
We affirm. Absent express words or positive indicia to the contrary, a governmental agency is not within the general words of a statute. Although this exemption is limited to cases where application of the statute would impair the entity’s sovereignty, subjecting CSU to Labor Code section 2802 in this case would do so because it would infringe on the broad discretion CSU enjoys under the Education Code to set its own equipment reimbursement policies.
https://www.courts.ca.gov/opinions/documents/B320588.PDF
Accurso v. In-N-Out Burgers (CA1/4 A165320 8/29/23) PAGA
Appellants Tom Piplack and Brianna Marie Taylor are lead plaintiffs in Private Attorneys General Act (PAGA) (Lab. Code, § 2698 et seq.) representative actions in Orange and Los Angeles Counties against respondent In-N-Out Burgers (In-N-Out). Upon learning of settlement negotiations in a subsequent, overlapping PAGA action brought by respondent Ryan Accurso against In-N-Out in Sonoma County, Piplack and Taylor filed a proposed complaint in intervention in the Sonoma County action, and moved to intervene under Code of Civil Procedure section 387 and for a stay. The trial court denied the motions, relying principally on Turrieta v. Lyft, Inc. (2021) 69 Cal.App.5th 955, review granted Jan. 5, 2022, S271721 (Turrieta) and distinguishing our decision in Moniz v. Adecco USA, Inc. (2021) 72 Cal.App.5th 56 (Moniz). Before us now is an appeal from Piplack and Taylor arguing that the denial of these two motions was erroneous. Accurso and In-N-Out have responded urging affirmance in separate briefs. We will vacate the denial order and remand for reconsideration.
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